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[Cites 19, Cited by 0]

Delhi District Court

Sunita vs . Arjun Nijhawan & Ors. on 26 November, 2021

MACP No. 5171/16; FIR No.17A/2013 ; PS. KNK Marg                               DOD: 26.11.2021


        IN THE COURT OF SHRI DEVENDER KUMAR JANGALA,
      PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNAL,
                  NORTH, ROHINI COURTS, DELHI

MAC Petition No. 5171/16
Sunita Vs. Arjun Nijhawan & Ors.


1.       Smt. Sunita
         W/o Late Sh. Harender,

2.       Ms. Navya
         D/o Late Sh. Harender Kumar

         Both R/o G­10/20, Sector­15
         Rohini Delhi
                                                               ..........Petitioners

                                                   VERSUS

1.       Sh. Arjun Nijhawan
         S/o Shri Shekhar Nijhawan
         R/o H­111, G.S. Apartments,
         Sector­13, Rohini Delhi­110085.                                   (Driver)

2.       Sh. Shekhar Nijhawan
         S/o Shri R. S. Nijhawan
         R/o H­111, G.S. Apartments,
         Sector­13, Rohini Delhi­110085.                                   (Owner)

3.       IFFCO Tokia General Insurance Co. Ltd.
         Iffco Tower, 4th & 5th Floors, Plot No.3
         Sector ­29 Gurgaon­122001
         Haryana                                                      (Insurer)
                                                            ............Respondents
Sunita & Ors. Vs.Arjun Nijhawan & Ors. Page 1 of 28

MACP No. 5171/16; FIR No.17A/2013 ; PS. KNK Marg DOD: 26.11.2021 Date of Institution : 02.07.2013 Date of Arguments : 23.10.2021 Date of Judgment : 26.11.2021 APPEARENCES Shri Lokesh Kumar, Ld. Counsel for petitioners Shri Shashi Ranjan, Ld. Counsel for respondent No. 1 Shri R. K. Jain, Ld. Counsel for respondent No. 2 Shri S. K. Tyagi, Ld. Counsel for respondent No. 3/insurance company Petition under Section 166 and 140 of M.V. Act, 1988 for grant of compensation AWARD

1. The petitioners are seeking compensation for the fatal injuries sustained by Shri Harender Kumar in the wake of Detailed Accident Report (DAR) filed by police corresponding to the investigation carried out in DD No. 17A/2013, U/s 279/427/304A IPC and 4/181 and 5/180 of Motor Vehicles Act, registered at PS. KNK Marg, with regard to Motor Vehicular Accident which occurred on 06.06.2013 at 11:45 am Near Gate No. 2, Kewal Kunj Aptt, Sector­13, Rohini, Delhi, involving vehicle i.e. car bearing registration no. DL 4CAH 6055 (alleged offending vehicle) allegedly being driven in rash and negligent manner and without following traffic rules by respondent no. 1(JCL). DAR was treated as claim petition U/s 166(4) of Motor Vehicles Act (hereinafter referred to as M.V. Act).

2. According to DAR, on 06.06.2013 the deceased Shri Harender Kumar and his brother in law Shri Deepk Kumar were going on scooter Sunita & Ors. Vs.Arjun Nijhawan & Ors. Page 2 of 28 MACP No. 5171/16; FIR No.17A/2013 ; PS. KNK Marg DOD: 26.11.2021 bearing No.DL­8SU­5833 and was proceeding towards Kewal Kunj Apartment near DDA market from the house and at about 11.00 AM when they reached at DDA market Kewal Kunj Apartment, deceased Harender Kumar stopped the scooter and was tracing out the papers from his pocket, in the meantime a Honda City car baring No. DL­4CAH­6055 being driven by driver/respondent no. 1 in a rash and negligent manner came at high speed and hit the deceased who was standing near the scooter. Thereafter, he was removed to Bhagwati Hospital where his MLC was prepared and thereafter he was removed to Maharaja Agrasen Hospital. DD No. 17A dated 06.06.2013, u/s 279/427/304A IPC was registered at PS. KNK Marg with regard to accident in question as alleged driver was found to be juvenile in conflict with law. It is claimed that the accident took place due to rash and negligent driving of car bearing registration No. DL 4C AH 6055 by its driver/respondent no.1. The said car was found to be owned by Shri Shekhar Nijhawan respondent no. 2 and it was insured with Iffco Tokia General Insurance Company Ltd /respondent no. 3 during the period in question.

3. Respondent no.1 the driver filed reply thereby stating therein that he has been falsely implicated in the present case. It is stated that the alleged eyewitness Sh. Deepak is a planted witness. That the alleged accident took place due to sole negligence of deceased himself who was standing on the road while there was some empty space for parking near the road of accident. It is admitted that the accident took place due to Sunita & Ors. Vs.Arjun Nijhawan & Ors. Page 3 of 28 MACP No. 5171/16; FIR No.17A/2013 ; PS. KNK Marg DOD: 26.11.2021 involvement of the vehicle no. DL­4CAH­6055 but the negligence on the part of respondent no.1 is denied.

4. Respondent no.2 registered owner filed reply thereby stating therein that the alleged vehicle bearing registration no. DL­4CAH­6055 was insured with respondent no.3 at the time of accident and since there was no breach of terms and conditions of the insurance policy, the compensation, if any is to be paid by respondent no.3. It is stated that the respondent no.1 without his permission took the alleged offending vehicle and drove the same and accident took place. That the alleged accident took place due to sole negligence of deceased himself who was standing on the road while there was 13 feet kacha road for parking near the place of accident. It is stated that he had also paid the bill amount of Rs.28,750/­ of Bhagwati Hospital and a sum of Rs.2585/­ of chemist on humanitarian ground. It is denied that respondent no.2 is liable to pay compensation.

5. Respondent no.3 the insurance company filed reply thereby stating therein that the vehicle no. DL­4CAH­6055 was insured with it vide police no. 82054064 valid for the period from 24.04.2013 to 23.04.2013. It is stated that the driver Sh. Arjun Nijhawan was minor and was not holding driving licence at the time of accident. Hence the insurance company is not liable to pay compensation.

6. From pleading of the parties, the following issues were framed by Sunita & Ors. Vs.Arjun Nijhawan & Ors. Page 4 of 28 MACP No. 5171/16; FIR No.17A/2013 ; PS. KNK Marg DOD: 26.11.2021 Ld. Predecessor vide order dated 19.08.2013:­

1) Whether deceased Harender Kumar expired due to accident caused on 6.06.2013 at 11.45 AM near Gate no. 2, Kewal Kunj Apartment, Sector­13, Rohini within the jurisdiction of PS KN Katju Marg due to rash and negligent driving of vehicle no.

DL­4CAH­6055 driven by its driver/R­1?OPP.

2)Whether the Lrs of deceased are entitled for compensation, if any from which respondents and to what extent?OPP.

3) Relief.

7. In order to establish their claim, the petitioners have examined three witnesses i.e. PW­1 Smt. Sunita, (Widow of deceased), Sh. Deepak Kumar, the eyewitness of the accident as PW2 and one Sh. Lal Chand, PRO from the employer of deceased as PW­3. The petitioners closed their evidence on 02.02.2019 through their counsel. On the other hand, respondent no.1 examined himself as R1W1, respondent no.2 examined himself as R2W1. No witness was examined on behalf of respondent no.3/insurance company and RE was closed vide order dated 02.02.2019.

8. I have already heard the arguments addressed by Sh. Lokesh Kumar, Ld.counsel for petitioners, Sh. Shashi Ranjan, Ld.counsel for respondent no.1/driver, Sh. R. K. Jain, Ld.counsel for respondent no.2/registered owner and Sh. S. K. Tyagi, Ld.counsel for respondent Sunita & Ors. Vs.Arjun Nijhawan & Ors. Page 5 of 28 MACP No. 5171/16; FIR No.17A/2013 ; PS. KNK Marg DOD: 26.11.2021 no.3/insurance company. I have also gone through the record. My findings on the issues are as under:­ ISSUE NO. 1

9. PW­1 Smt. Sunita, widow of deceased is not the eyewitness of the accident. For the purpose of this issue, the testimony of PW2 Sh. Deepak Kumar is relevant. PW­2 adduced evidence by way of affidavit Ex.PW2/A. In his affidavit he has stated that on 06.06.2013 he aloingwith his brother in law Sh. Harender Kumar (deceased) was going on Scooter bearing no. DL­8SU­5833 and they were proceeding towards Kewal Kunj Apartment near DDA Market and at about 11.45 AM when they reached at DDA Market Kewal Kunj Apartment, then his brother in law stopped the scooter and started tracing out some papers, in the meantime one Honda City car bearing no. DL­4CAH­6055 driven by its driver in a rash and negligent manner came from Kewal Kunj Apartment Gate no. 1 and hit the deceased who was standing near the scooter. Due to impact of accident his brother in law sustained injuries and his scooter was also damaged. He categorically deposed that the accident was caused due to rash and negligent driving of driver of Honda City car bearing no. DL­4CAH­6055. In the cross­examination on behalf of driver he denied the suggestion that he was not present at the spot. He further denied the suggestion that he was at home when the accident took place. He further denied the suggestion that a car was coming from the wrong side and in order to save the said car, the driver took the car to the right side and since the deceased had wrongly Sunita & Ors. Vs.Arjun Nijhawan & Ors. Page 6 of 28 MACP No. 5171/16; FIR No.17A/2013 ; PS. KNK Marg DOD: 26.11.2021 parked the scooter on the mettled road, it struck against the scooter. He further stated that the front middle part of the car had struck against the back of the scooter. He further denied the suggestion that he is a planted witness and deposing falsely in order to help the petitioners.

10. Respondent no.1 appeared in witness box as R1W1. In his affidavit by way of evidence he stated that the accident had occurred solely due to negligence of deceased as he was sitting on his two wheeler which was parked on the metal portion and there was 13 feet kacha portion available on the left side of the road. He further stated that the accident took place in order to save the car which was coming from the front side.

11. It is argued on behalf of respondents that the PW­2 was not present at the spot at the time of accident and he has been planted by the investigating officer. That the accident was caused due to sole negligence of deceased himself.

12. It be noted that the factum of accident has not been disputed by the respondents. The respondent no.1 who was driving the alleged offending vehicle at the time of accident has himself said that the accident took place in order to save the car coming from the front side. Mere the fact that the deceased was on the metal portion of the road does not amount to negligence on the part of deceased. The manner of accident disclosed by the respondent no.1 himself shows that he was not in proper control of the offending vehicle at the time of accident because as per version of Sunita & Ors. Vs.Arjun Nijhawan & Ors. Page 7 of 28 MACP No. 5171/16; FIR No.17A/2013 ; PS. KNK Marg DOD: 26.11.2021 respondent no.1 himself the accident had taken place as he tried to save the car coming from opposite direction. The deposition of R1W1/respodnent no.1 himself shows that he was negligent while driving the alleged offending vehicle at the time of accident.

13. Moreover, it is an undisputed fact that DD no. 17A dated 06.06.2013 (supra) was registered at PS. KNK Marg with regard to accident in question and Kalandra Under Section 279/427/304A IPC, 4/181 and 5/180 of the Motor Vehicles Act was filed against the respondent no.1/JCL. by the investigating agency after arriving at the conclusion on the basis of investigation carried out by it that the accident in question had occurred due to rash and negligent driving of Honda City car bearing no. DL­4CAH­6055 by him. Same would also point out towards rash and negligent driving of aforesaid vehicle by respondent no. 1.

14. Not only this, copy of death certificate of deceased filed alongwith the Accident report shows that the deceased has expired due to Road traffic accident with polytrauma with H1 with fracture left distal radius, fracture shaft right, fracture ribs, fracture lateral wall of right orbit and nasal bone. Said documents have not been disputed from the side of respondents and corroborate the ocular testimony of PW2 as discussed above.

15. In view of the aforesaid discussion and the evidence which has come on record, it is held that the petitioners have been able to prove on Sunita & Ors. Vs.Arjun Nijhawan & Ors. Page 8 of 28 MACP No. 5171/16; FIR No.17A/2013 ; PS. KNK Marg DOD: 26.11.2021 the basis of preponderance of probabilities that the deceased Sh. Harender Singh had sustained fatal injuries in road accident which took place on 06.06.2013 at 11:45 am Near Gate No. 2, Kewal Kunj Aptt, Sector­13, Rohini, Delhi, involving vehicle i.e. car bearing registration no. DL 4CAH 6055 (alleged offending vehicle) allegedly being driven in rash and negligent manner and without following traffic rules by respondent no. 1(JCL). Thus, issue no.1 is decided in favour of petitioners and against the respondents.

ISSUE NO. 2

16. Section 168 of the Act enjoins the Claims Tribunal to hold an inquiry into the claim to make an award determining the amount of compensation which appears to it to be just and reasonable. It has to be borne in mind that the compensation is not expected to be a windfall or a bonanza nor it should be niggardly.

LOSS OF DEPENDENCY

17. The claimants are the widow and daughter of deceased. Smt. Sunita, widow of deceased examined herself as PW­1 and filed her evidence by way of affidavit Ex. PW1/A, she deposed that the deceased has left behind PW­1 and her daughter Baby Navya. PW­1 further deposed that the deceased was aged about 42 years at the time of accident and he was working as Public Relation Officer with Heart Lab, Madhuban Chowk, Rohini, Delhi and was drawing salary of Rs.14,000/­ per month.

18. The petitioners in order to prove the employment and earning Sunita & Ors. Vs.Arjun Nijhawan & Ors. Page 9 of 28 MACP No. 5171/16; FIR No.17A/2013 ; PS. KNK Marg DOD: 26.11.2021 of deceased have examined PW­3 Sh. Lal Chand, PRO from 'The Heart Lab' as PW­3. He deposed in his examination in chief that "I have brought the summoned record i.e. attendance register having initial of Harender Kumar at Srl. No. 3. I have seen the photocopy of attendance register for the month of February and March, 2013 which are already on record, same are Ex. PW3/1 and ex. PW3/2(OSR). I have seen the photocopy of vouchers dated 07.01.2013 and 07.12.2012 vide which salary of Rs.14,000/- was being given to Sh. Harender, same are Ex. PW3/3 and Ex. PW3/4 respectively(OSR). Sh. Harender Kumar was the employee of the Heart Lab since May 2000. The certificate issued by Managing Director, the Heart lab in this regard is already Ex. PW1/2".

19. PW­3 was cross­examined at length by respondents. The relevant portion of cross­examination of PW­3 is as under:

" It is correct that the attendance register copy is bearing stamp of May 2013. It is also correct that the attendance register is started since March, 2012. It is correct that no attendance is marked from October, 2013 till February 2014. It is correct that no revenue stamps is fixed on salary voucher. I can produce the present record after shifting the lab so asked. It is correct that on the voucher pad only initial of deceased Harender is mentioned and not full signature".

20. Thereafter the further cross­examination of PW­3 was deferred. On the next date i.e. 17.03.2013 PW­3 has not brought the attendance register of the employees of the Heart Lab for the period from October 2013 onwards. He also deposed that he has not brought the salary vouchers in respect of deceased Harender Kumar for the period after 07.06.2013. It is Sunita & Ors. Vs.Arjun Nijhawan & Ors. Page 10 of 28 MACP No. 5171/16; FIR No.17A/2013 ; PS. KNK Marg DOD: 26.11.2021 stated that he has not brought the said record as the relevant record has been misplaced due to shifting of their Lab in the year 2015. During the cross­examination the witness was asked the question that his statement was recorded on 17.10.2014 and he was directed to produce the record, despite that he allowed the relevant record to be misplaced. The witness in answer of the said question stated that the document could not be found. PW­3 Sh. Lal Chand has further deposed in his cross­examination dated 17.03.2018 as under:

"The record with regard to the attendance register and salary vouchers in respect of all the employees of our Lab for the aforesaid period has been misplaced during the shifting process. We did not lodge any missing report with regard to the aforesaid record with any authority. The computer system in which relevant entries were made with regard to the income and expenditure of Lab is also not available as computer system gets obsolete and same is replaced with the new computer system. Dr. B. B. Chanana alone had been running the clinic attached with the Heart Lab during the relevant period. I have not knowledge as to from which period till which period, the record of attendance register and salary vouchers in respect of employees have been misplaced during the shifting process. I do not know as to when revenue stamp is required to be got affixed beyond payment of prescribed limit of money being paid in cash. I can not produce any single document bearing handwriting or signature of Harender Kumar in order to show that he was actually working as an employee of our lab. No identity card used to be issued by our Lab to its employees during the relevant period or even till date. I have not knowledge as to whether appointment letter used to be issued at the time of appointing employees in our lab during the relevant period Sunita & Ors. Vs.Arjun Nijhawan & Ors. Page 11 of 28 MACP No. 5171/16; FIR No.17A/2013 ; PS. KNK Marg DOD: 26.11.2021 or not. Our owner namely Dr. B. B. Chanana may tell about the same. It is wrong to suggest that I have made false entries or that I have fabricated false record in the form of Attendance Register and Salary Vouchers (Ex. PW3/1 to Ex. PW3/4) in order to favour the family members of deceased Harender Kumar to get maximum compensation amount in this case".

21. Thereafter further cross­examination of the witness was deferred and he was directed to produce the record i.e. attendance register and salary vouchers of the employees for the period w.e.f. 01.04.2016 onwards till date and also to produce the said record for the period prior to 01.04.2016, if any available with him. He further further directed to produce audited accounts or the Account Books in respect of their Lab for the financial year 01.04.2012 to 31.03.2013 for the financial year 01.04.2013 to 31.03.2014, if so available.

22. On 02.02.2019, PW­3 Sh. Lal Chand further deposed in his cross­examination:

"Today, I have brought the salary vouchers in respect of employees of our aforesaid lab from the period 07.04.2016 till 07.08.2017. The original salary vouchers as produced by witness, are now collectively exhibited as Ex.PW3/R1 (colly). I have also brought the copies of income and expenditure account and balance sheets alongwith copies of IT returns and audit reports given by concerned chartered accountant, in respect of assessee namely Dr. B.B. Chanana who is the owner of aforesaid lab, for the assessment years 2013-2014 and Sunita & Ors. Vs.Arjun Nijhawan & Ors. Page 12 of 28 MACP No. 5171/16; FIR No.17A/2013 ; PS. KNK Marg DOD: 26.11.2021 2014-2015. Same are now collectively exhibited as Ex.PW3/R2 (colly). The aforesaid documents have been brought by me today from Dr. B.B.Chanana. It is correct that attendance registers and salary vouchers as placed on record, do not bear signature or initials of concerned CA. The employees of Dr. B.B. Chanana used to purchase stationery items meant to be used in the aforesaid lab but I cannot say as to who had purchased the attendance register Ex. PW3/1 and Ex. PW3/2. It is wrong to suggest that the aforesaid attendance registers and salary vouchers were fabricated or forged by Dr. B.B. Chanana in connivance with his staff members at the instance of family members of deceased in order to favour them to get higher amount of compensation in this case or that I am deposing falsely.
At this stage, attention of witness is drawn towards attendance register and after going through the same, witness admits that relevant pages thereof for the period from October, 2013 till February, 2014 are lying blank and same do not contain details regarding employees and the number of days duty performed by them. It is correct that pages after February, 2014 in the said register, are lying totally blank. I cannot furnish any reason as to how the aforesaid discrepancy had taken place with regard to the overlapping of period of January and February, 2014 in the aforesaid two attendance registers. It is wrong to suggest that I cannot furnish any explanation in this regard as both the said registers were forged or fabricated by Dr. B.B. Chanana in my connivance at the instance of family members of deceased to favour them in this case. It is further wrong to suggest that the salary vouchers Ex. PW3/3 and Ex. PW3/4 were prepared on same day or in same ink or in same handwriting.
Sunita & Ors. Vs.Arjun Nijhawan & Ors. Page 13 of 28
MACP No. 5171/16; FIR No.17A/2013 ; PS. KNK Marg DOD: 26.11.2021

23. The perusal of testimony of PW­3 Sh. Lal Chand on the face of it would reveals that it is full of contradictions. On 17.10.2014 during the deposition of PW­3 Sh.Lal Chand, PRO 'The Heart Lab', my Ld. Predecessor has observed as under:

During the evidence of PW-3, it has been pointed out that the attendance register has been manufactured in May, 2013 as per the stamp on the binding, however, the register bears the attendance of the employees for the year 2012. This prima facie shows that the registered has been manipulated. The attendance register and voucher pad are retained. Issue notice to Dr. Sh. B. B. Chanana, who is running the said lab on 02.03.2015 at 2.00 PM who is also bound down through PW-3.

24. Thereafter Dr. B. B. Chanana sought time to produce the record/ITRs/Complete record regarding the employment of deceased. On 27.04.2015, Dr. B. B. Chanana has filed the copy of his ITR and a certificate from his Chartered Accountant. On 27.05.2017, Dr. B. B. Chanana was directed to appear in person. On 17.03.2018 the examination of PW Dr. B. B. Chanana was deferred on the request of respondents who have stated that the statement of PW Dr. B. B. Chanana may be recorded after the completion of examination of PW­3. On 02.06.2018 show cause notice was issued to Dr. B. B. Chanana for furnishing his explanation regarding non production of relevant record. PW Dr. B. B. Chanana has failed to appear and hence the petitioners closed their evidence on 02.02.2019. Thereafter vide order dated 02.02.2019 my Ld. Predecessor has observed as under:

Sunita & Ors. Vs.Arjun Nijhawan & Ors. Page 14 of 28
MACP No. 5171/16; FIR No.17A/2013 ; PS. KNK Marg DOD: 26.11.2021 "It may be noted that there are certain glaring facts which have emerged on record from the testimony of PW 3 Sh. Lal Chand who is the PRO of one Heart Lab being run from Flat no. 546, pocket C- 8, Sector 8, Rohini, Delhi - 110085 as the said witness has produced one attendance register which bears the date of its printing as May, 2013, whereas it contains certain entries which relate to the period from March, 2012 till February, 2014. Hence, the said register is prima facie found to be fabricated record which seems to have been prepared subsequently. Similarly, PW3 has prima facie made contradictory statements with regard to existence of salary vouchers for the relevant period, in his testimony made on oath during the course of Inquiry.
Before passing any detailed directions which may entail legal consequences, it would be appropriate that an opportunity of hearing is granted to PW3 Sh.Lal Chand as well as to Dr. B.B. Chanana who is owner of said Lab. Hence, issue Show Cause Notices to both of them through Nazarat without PF for furnishing their written explanations, if any, by explaining the circumstance under which the aforesaid attendance register came into existence and as to why appropriate action should not be taken against them".
25. Thereafter adjournment was sought on behalf of PW­3 Sh. Lal Chand and Dr. B. B. Chanana for filing the reply to the show cause notice dated 02.02.2019. On 02.08.2019, it was submitted by Dr. B. B. Chanana that he has already submitted his reply and he does not want to say nothing else. Thereafter the statement of petitioner Smt. Sunita was also recorded as CW­1. CW­1 Smt. Sunita deposed that she has relied upon the salary Sunita & Ors. Vs.Arjun Nijhawan & Ors. Page 15 of 28 MACP No. 5171/16; FIR No.17A/2013 ; PS. KNK Marg DOD: 26.11.2021 certificate Ex.PW1/2 dated 12.10.2013 issued by Dr. B. B. Chanana. CW­1 Smt. Sunita further deposed that document Ex. PW1/2 and salary voucher mark A and attendance sheet mark B were given to her from the office of Dr. B. B. Chanana, who is the owner of Heart Lab. She further deposed that the documents were handed over to her by Sh. Lal Chand, from the office of Dr. B. B. Chanana as he was handling all the communications relating to the case of her deceased husband.
26. On 23.08.2019 it was submitted by Ld.counsel for respondents that the matter requires thorough investigation after registration of FIR and prosecution under Section 340 Cr. PC. However in view of judgment passed by Division Bench of Hon'ble Delhi High Court in case titled as Vishal Kapoor vs. Sonal Kapoor, LPA no. 322/14, decided on 02.09.2014, the decision on show cause notice under Section 340 Cr. PC was deferred till final decision. It was observed that issue shall be taken up at the time of passing of final judgment.
27. The deposition of PW­3 Sh. Lal Chand and summoned record produced by him prima facie shows manipulation of the employment and attendance record of the deceased Sh. Harender. PW­3 Sh. Lal Chand, PRO from Heart Lab and Dr. B. B. Chanana, owner of 'The Heart Lab' despite grant of sufficient opportunity could not furnish any justified explanation with regard to discrepancy emerged in deposition of PW­3 and the record produced. It is not disputed that the attendance register Sunita & Ors. Vs.Arjun Nijhawan & Ors. Page 16 of 28 MACP No. 5171/16; FIR No.17A/2013 ; PS. KNK Marg DOD: 26.11.2021 manufactured in May 2013, bears the attendance of the employee for the year 2012. None of the witnesses or Dr. B. B. Chanana, owner of Heart Lab could explain how an attendance register printed in 2013 can bear the attendance record of the employee for the period 2012. The deposition of PW­1 Smt. Sunita wife of deceased is also not helpful in this case as her knowledge regarding employment of deceased is based upon the document given by PW­3 Sh. Lal Chand, PRO from Heart lab, owned by Dr. B. B. Chanana. It is not out of place to mention that the deposition of PW­3 Sh.

Lal Chand has been shattered during the lengthy cross­examination. In the present case the lengthy cross­examination of PW­3 elicited the truth from the mouth of witness. The cross­examination of PW­3 itself is so clear that it speaks about the manipulation of record. In view of above, I am not inclined to rely upon the deposition of PW­3 Sh. Lal Chand and document of salary and employment produced by him regarding deceased Sh. harender from 'The Heart Lab' owned by Dr. B. B. Chanana.

28. My Ld. Predecessor has also issued the show cause notice to PW­3 Sh. Lal Chand and Dr. B. B. Chanana for their prosecution for fabrication of the record and contradictory statement with regard to the existence of salary voucher for the relevant period in his testimony made on oath during the course of inquiry. In view of order dated 23.08.2019 I shall proceed to decide the said issue vide separate order of even date.

Sunita & Ors. Vs.Arjun Nijhawan & Ors. Page 17 of 28

MACP No. 5171/16; FIR No.17A/2013 ; PS. KNK Marg DOD: 26.11.2021

29. The petitioner has not produced on record any other evidence or document with regard to income and salary of deceased. In view of aforesaid, the income of deceased is taken as minimum wages as per his educational or technical qualifications. As per version of petitioners the deceased a post graduate at the time of accident. Same is also evident from his educational documents Ex. PW1/1(colly). Hence, the minimum wages of a graduate prevailing at the time of accident are taken, in order to calculate the loss of dependency. As on the date of accident i.e. 06.06.2013, the Wages of Graduate under Minimum Wages Act were Rs. 10,218/­per month.

30. As per the case of petitioners, deceased Sh. Harender Kumar was aged about 42 years at the time of accident. The High school examination certificate of deceased shows his date of birth as 14.04.1971. Hence, the deceased was around 42 years of age at the time of accident. The multiplier of 14 would be applicable in view of recent pronouncement made by Constitutional Bench of Apex Court in the case titled as "National Insurance Company Ltd. Vs. Pranay Sethi & Ors." passed in SLP(Civil) No. 25590/14 decided on 31.10.17.

31. Considering the fact that deceased was aged about 42 years at the time of accident and was not having permanent job at that time, future prospects @ 25% has to be awarded in favour of petitioners in view of recent pronouncement made by Constitutional Bench of Apex Court in Sunita & Ors. Vs.Arjun Nijhawan & Ors. Page 18 of 28 MACP No. 5171/16; FIR No.17A/2013 ; PS. KNK Marg DOD: 26.11.2021 the case titled as "National Insurance Company Ltd. Vs. Pranay Sethi & Ors." mentioned supra, as well as in view of recent decision of Hon'ble Delhi High Court in appeal bearing MAC APP No. 798/2011 titled as "Bajaj Allianz General Insurance Company Ltd. Vs. Pooja & Ors", decided on 02.11.17.

32. PW1 has categorically deposed in his evidence by way of affidavit (Ex. PW1/A) that both the petitioners were fully dependent upon the services of deceased. Said part of his testimony remained unchallenged and uncontroverted from the side of respondents. No evidence in rebuttal has been led by respondents during the course of inquiry. Considering all these facts and circumstances, it is accepted that there were two dependents on the income of deceased at the time of accident. Hence, there has to be deduction of one third as held in the case of Pranay Sethi mentioned supra. Thus, the total of loss of dependency would come out to Rs.14,30,500/­ (rounded off) (Rs. 10,218/­ X 2/3 X 125/100 X 12 X 14). Hence, a sum of Rs. 14,30,500/­ is awarded under this head in favour of the petitioners.

LOSS OF LOVE & AFFECTION

33. After the celebrated judgment of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors. mentioned supra and recent judgment titled New India Assurance Company Limited versus Somwati & Ors., Civil Appeal no. 3093 of 2020 dated 07.09.2020 the petitioners Sunita & Ors. Vs.Arjun Nijhawan & Ors. Page 19 of 28 MACP No. 5171/16; FIR No.17A/2013 ; PS. KNK Marg DOD: 26.11.2021 are not entitled to be compensated under this head. Further Hon'ble Delhi High Court in appeal titled as "Bajaj Allianz General Insurance Company Ltd. Vs. Pooja & Ors", mentioned supra has been pleased to observe in para 18 of the judgment that the constitution bench decision in Pranay Sethi (supra) does not recognize any other non­pecuniary head of damages. Hence, no amount of compensation is being awarded under this head.

LOSS OF CONSORTIUM

34. In view of the judgment of Hon'ble Supreme Court in case titled as New India Assurance Company Limited versus Somwati & Ors., Civil Appeal no. 3093 of 2020, dated 07.09.2020 I am of the considered opinion that the petitioner no.1/widow of deceased and petitioner no.2 daughter are entitled for payment of Rs. 40,000/­ each towards loss of consortium. Consequently a sum of Rs.80,000/­ is awarded to the petitioners under this head.

LOSS OF ESTATE & FUNERAL EXPENSES

35. In view of the facts and circumstances of the present case and in view of decision of Hon'ble Apex Court in the case of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors." mentioned supra, a sum of Rs. 15,000/­ each is awarded in favour of petitioners on account of loss of estate and funeral expenses.

Sunita & Ors. Vs.Arjun Nijhawan & Ors. Page 20 of 28

MACP No. 5171/16; FIR No.17A/2013 ; PS. KNK Marg DOD: 26.11.2021 MEDICAL BILLS

36. It is stated that the deceased has expired during his treatment after about four days of accident i.e. 10.06.2013 and during the said period, he was under continuous treatment. In order to prove the expenditure on treatment the petitioners have relied upon the medical bills Ex. PW1/3(colly). It is quite evident that the respondents have not disputed the authenticity and genuineness of the said medical bills during the course of inquiry. Respondents have also not led any evidence in rebuttal so as to create any doubt on the geuineness of said bills. Accordingly, a sum of Rs.92,172/­ is awarded to the petitioner under this head.

The total compensation is assessed as under:­

1. Loss of dependency Rs. 14,30,500/­

2. Loss of love and affection Rs. NIL

3. Loss of Consortium Rs. 80,000/­

4. Loss of Estate & Funeral Rs. 30,000/­ Expenses

5. Medical bills Rs. 92,172/­ Total Rs. 16,32,672/­ Rounded as of Rs. 16,32,700/­

37. Now, the question which arises for determination is as to which of the respondents is liable to pay the compensation amount. Respondent no.3, insurance company sought exoneration from its liability on the ground that the respondent no.1/driver of the offending vehicle was minor at the time of accident and thus he was not holding valid driving licence, hence, Sunita & Ors. Vs.Arjun Nijhawan & Ors. Page 21 of 28 MACP No. 5171/16; FIR No.17A/2013 ; PS. KNK Marg DOD: 26.11.2021 since the insured has violated the terms and conditions of insurance policy, the insurance company is not liable to pay compensation.

38. Per contra. It is argued on behalf of respondent no.2/registered owner that the respondent no.1 took the vehicle without his consent or permission and there was no willful or conscious breach of terms and conditions of insurance policy. In support of his submissions Ld.counsel for respondent no.2 has relied upon following case law:

1. V. Mepherson VS. Shiv Charan Singh, 1998 ACJ 601(Del.)
2. Oriental Insurance Company Ltd. Vs. Master Shekhar & Ors., MAC No. 264/10
3. Rakesh Kumar Arora VS. Balwant Singh 2002 ACJ 1246 (P & H).
4. National Insurance Company Limited Vs. Smt. Jayashri 2015 (1) TAC 418 (Bom.)
5. United India Insurance Company Limited Vs. Biresh Giri & Ors., I (2015) ACC 243.

39. Though in his affidavit Ex. R1W1/A, the respondent no.1 stated that he was getting late for attending his tuition class and his father was also not present, he took keys of car from the drawer without knowledge, consent and permission of his father. However, in the cross­examination he admitted that he had been driving car off and on for the last about one year prior to 06.06.2013 and he had driven car no. DL­4CAH­6055 on two occasions prior to 06.06.2013.

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MACP No. 5171/16; FIR No.17A/2013 ; PS. KNK Marg DOD: 26.11.2021

40. Respondent no.2/registered owner has also appeared in witness box as R2W1. He also deposed that he never allowed respondent no.1 to drive his car and respondent no.1 in his absence without his consent took his car. However, in reply to notice under Section 133 of Motor Vehicles Act Ex. R2W1/R­2, he has not disclosed that the alleged vehicle was being driven by respondent no.1 without his consent. He has also admitted in the cross­examination that except the present proceedings he has not given it in writing either before police authority or before concerned Juvenile Justice Board that his son had taken the aforesaid car without his knowledge, consent and permissions. Hence, the defence as taken by respondent no.2 is after thought and having been taken just to escape the liability. The parents has to keep proper control over the vehicles so that their minor children does not drive the vehicle even in their absence. Recently the Parliament has implemented strict punishment to the parents who allow their minor children to drive the vehicle. If such type of contentions are allowed to be accepted, then no person can be held liable in such situation. The judgment (supra) relied upon by Ld.counsel for respondent no.2 is not applicable to the facts of present case because in the above said cases it has been established by the respondent that the vehicle was driven by minor without the express or implied authority of registered owner whereas in the present case the material on record speaks that the respondent no.1 was driving the alleged offending vehicle either with the express authority or implied authority of registered owner. In view of aforesaid, the defence taken by respondent no.2/registered owner Sunita & Ors. Vs.Arjun Nijhawan & Ors. Page 23 of 28 MACP No. 5171/16; FIR No.17A/2013 ; PS. KNK Marg DOD: 26.11.2021 holds no ground and same is declined.

41. It is an admitted case that the offending vehicle was insured with respondent no.3 at the time of accident. Hence, the insurance company is held liable to indemnify the insured. Keeping in view the existence of valid insurance policy, respondent no.3/insurance company is directed to deposit the award amount with right to recover the same from the respondent no.2/registered owner Sh. Shekhar Nijhawan, in appropriate proceedings as per law. Issue no. 2 is decided accordingly.

ISSUE NO. 3 RELIEF

42. In view of my findings on issues no. 1 & 2, I award a sum of Rs.16,32,700/­(Rs. Sixteen Lacs Thirty Two Thousand Seven Hundred only) (including interim award amount if any) alongwith interest @ 9% per annum w.e.f date of filing the petition i.e. 05.08.2013 till the date of its realization, in favour of Lrs of deceased/petitioners and against the respondents jointly and severally (Reliance placed on judgment "Oriental Insurance Company Ltd. Vs. Sangeeta Devi & Ors" bearing MAC. APP. 165/2011 decided on 22.02.2016).

APPORTIONMENT

43. Statements of legal heirs of deceased in terms of Clause 29 MCTAP were recorded on 06.07.2019. In view of the facts and Sunita & Ors. Vs.Arjun Nijhawan & Ors. Page 24 of 28 MACP No. 5171/16; FIR No.17A/2013 ; PS. KNK Marg DOD: 26.11.2021 circumstances of the case and the said statements, it is hereby ordered that the petitioner no. 2 namely Ms. Navya (minor) shall be entitled to share amount of Rs. 5,00,000/­ (Rupees Four Lacs Only) alongwith proportionate interest and remaining amount i.e.Rs.11,32,700/­ alongwith proportionate interest is awarded in favour of petitioner no.1 Smt. Sunita.

44. Out of share amount of petitioner no. 1, a sum of Rs. 2,00,000/­ (Rupees Two Lacs Only) is directed to be immediately released to her through her Saving Bank Account No.38368797437 with State Bank of India, having IFSC Code. SBIN0009371 and remaining amount is directed to be kept in the form of FDRs in the multiples of Rs. 10,000/­ each for one month, two months, three months and so on and so forth, having cumulative interest.

45. The entire share amount of petitioner no. 2 shall be kept in the form of FDRs till she attain majority and thereafter a sum of Rs.50,000/­ is ordered to be released to her through her saving bank account i.e. A/c no.38333199335 with SBI having IFSC Code no. SBIN0009371 and remaining amount is directed to be kept in the form of FDRs in the multiples of Rs.10,000/­ each for one month, two months, three months and so on and so forth having cumulative interest. However, monthly interest is allowed to be withdrawn by her through her mother/natural guardian to be used for her welfare and upbringment.

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MACP No. 5171/16; FIR No.17A/2013 ; PS. KNK Marg DOD: 26.11.2021

46. All the FDRs to be prepared as per aforesaid directions, shall be subject to the following conditions:­

(a) The Bank shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the claimant(s) i.e. the savings bank account(s) of the claimant(s) shall be an individual savings bank account(s) and not a joint account(s).

(b) The original fixed deposit shall be retained by the bank in safe custody. However, the statement containing FDR number, FDR amount, date of maturity and maturity amount shall be furnished by bank to the claimant(s).

(c) The monthly interest be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant(s) near the place of their residence.

(d) The maturity amounts of the FDR(s) be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant(s) near the place of their residence.

(e) No loan, advance, withdrawal or pre­mature discharge be allowed on the fixed deposits without permission of the Court.

(f) The concerned bank shall not to issue any cheque book and/or debit card to claimant(s). However, in case the debit card and /or cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount. The bank shall debit card(s) freeze the account of the claimant(s) so that no debit card be issued in respect of the account of the claimant(s) from any other branch of the bank.

(g) The bank shall make an endorsement on the passbook of the claimant(s) to the effect that no cheque book and/or debit card have been issued and shall not be issued without the permission of the Court and claimant(s) shall produce the passbook with the necessary endorsement before the Court on the next date fixed for compliance.

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MACP No. 5171/16; FIR No.17A/2013 ; PS. KNK Marg DOD: 26.11.2021

(h) It is clarified that the endorsement made by the bank alongwith the duly signed and stamped by the bank official on the passbook(s) of the claimant(s) is sufficient compliance of clause(g) above.

(i) The petitioner is directed to open a Motor Accident Claims Annuity (Term) Deposit Account (MACAD) in terms of order dated 07.12.2018 of Hon'ble Justice J.R. Midha in case titled as Rajesh Tyagi and Others Vs. Jaibir Singh and Others F.A.O No. 842/03 as per clause 31 of MCTAP and form VIII titled as Motor Accident Claims Annuity Deposit (MACAD) Scheme as directed in the said order.

(j) Concerned Manager, SBI, Rohini Court branch is further directed to disburse the FD amount in Motor Accident Claims Annuity Deposit (MACAD) Scheme account as directed by Hon'ble Delhi High Court vide order dated 07.12.18, on completing necessary formalities as per rules.

47. Respondent no.3/insurance company is directed to deposit the award amount with SBI, Rohini Courts branch within 30 days as per above order, failing which insurance company shall be liable to pay interest @ 12% p.a for the period of delay. Concerned Manager, SBI, Rohini Court Branch is directed to transfer the respective share amounts directed to be released immediately to aforesaid petitioners in their aforesaid saving bank accounts mentioned supra, on completing necessary formalities as per rules. He be further directed to keep the said amount in fixed deposit in its own name till the claimants approach the bank for disbursement so that the award amount starts earning interest from the date of clearance of the cheques. Copy of the award be given dasti to the petitioners and also to counsel for the insurance company for compliance. Copy of this award alongwith one photograph each, specimen signatures, copy of bank Sunita & Ors. Vs.Arjun Nijhawan & Ors. Page 27 of 28 MACP No. 5171/16; FIR No.17A/2013 ; PS. KNK Marg DOD: 26.11.2021 passbooks and copy of residence proof of the petitioners, be sent to Nodal Officer of SBI, Rohini Court, Branch, Delhi for information and necessary compliance. Form XV & Form XVII in terms of MCTAP are annexed herewith as Annexure­A. Copy of order be also sent to concerned M.M and DLSA as per clause 31 and 32 of MCTAP. Announced in the open Court on 26.11.2021 (DEVENDER KUMAR JANGALA) Judge MACT­2 (North) Rohini Courts, Delhi Certified that above award contains 28 pages and each page is signed by me. DEVENDER Digitally signed by DEVENDER KUMAR KUMAR JANGALA Date: 2021.11.26 JANGALA 17:16:12 +0530 (DEVENDER KUMAR JANGALA) Judge MACT­2 (North) Rohini Courts, Delhi Sunita & Ors. Vs.Arjun Nijhawan & Ors. Page 28 of 28