Delhi District Court
Smt. Sarita vs Sh. Deep Chand Saini (Driver) on 20 November, 2013
IN THE COURT OF SH. ARUN BHARDWAJ
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNALII,
DWARKA COURTS, NEW DELHI
MACT No. 441/12 & DAR No. 87/DAR/13,
89/DAR/13 & 90/DAR/13
IN THE MATTER OF :
(i) MACT No. 441/12
1. Smt. Sarita,
W/o late Sh. Sandeep Kumar
2. Master Somya Rana (minor)
S/o late Sh. Sandeep Kumar
Through Petitioner No. 1 Next Friend/
Natural Guardian/Mother
3. Sh. Satish Kumar,
S/o late Sh. Mathura Prasad
4. Smt. Pushpa
W/o Sh. Satish Kumar
5. Kumari Kanishka,
D/o late Sh. Sandeep Kumar
Through Petitioner No. 1 Next Friend/
Natural Guardian/Mother
All R/o RZ63B, Pushpa Sadan,
Suraj Vihar, Kakrola Mor,
Dwarka, New Delhi110078.
... Claimants
MACT No. 441/12 Smt. Sarita & Ors. v. Sh. Deep Chand Saini & Ors. Page 1 of 35
DAR No. 87/DAR/13 Sh. Madhu Ram v. Sh. Deep Chand Saini & Ors. Page 1 of 35
DAR No. 89/DAR/13 Sh. Gulab Dass v. Sh. Deep Chand Saini & Ors. Page 1 of 35
DAR No. 90/DAR/13 Sh. Mahesh Mahto v. Deep Chand Saini & Ors. Page 1 of 35
Versus
1. Sh. Deep Chand Saini (Driver)
S/o Sh. Kewal Ram,
R/o Village & P.O. Dhani Khadra,
P.S. & Tehsil New Kathana,
Distt. Sikar, Rajasthan.
2. Sh. Madan Lal Yadav (Owner)
S/o Sh. Bansi Dhar Yadav,
R/o Dhani Karni Sagar,
Chimanpura, Shahpura,
Distt. Jaipur, Rajasthan.
3. HDFC ERGO General Insurance Co. Ltd. (Insurer)
C302, Ansal Plaza, Hudco Palace,
Andrews Ganj, New Delhi.
... Respondents
FILED ON : 17.12.2012
RESERVED ON : 12.11.2013
DECIDED ON : 20.11.2013
(ii) DAR No. 87/DAR/13
Sh. Madhu Ram,
S/o Sh. Mool Chand,
R/o V & P.O. Mussapur,
Distt. Samastipur,
Bihar.
... Claimant
MACT No. 441/12 Smt. Sarita & Ors. v. Sh. Deep Chand Saini & Ors. Page 2 of 35
DAR No. 87/DAR/13 Sh. Madhu Ram v. Sh. Deep Chand Saini & Ors. Page 2 of 35
DAR No. 89/DAR/13 Sh. Gulab Dass v. Sh. Deep Chand Saini & Ors. Page 2 of 35
DAR No. 90/DAR/13 Sh. Mahesh Mahto v. Deep Chand Saini & Ors. Page 2 of 35
Versus
1. Sh. Deep Chand Saini (Driver)
S/o Sh. Kewal Ram,
R/o Village & P.O. Dhani Khadra,
P.S. & Tehsil New Kathana,
Distt. Sikar, Rajasthan.
2. Sh. Madan Lal Yadav (Owner)
S/o Sh. Bansi Dhar Yadav,
R/o Dhani Karni Sagar,
Chimanpura, Shahpura,
Distt. Jaipur, Rajasthan.
3. HDFC ERGO General Insurance Co. Ltd. (Insurer) C302, Ansal Plaza, Hudco Palace, Andrews Ganj, New Delhi.
... Respondents
(iii) DAR No. 89/DAR/13 Sh. Gulab Dass, S/o Sh. Dukhan Dass, R/o V & P.O. Mussapur, Distt. Samastipur, Bihar.
... Claimant Versus
1. Sh. Deep Chand Saini (Driver) S/o Sh. Kewal Ram, R/o Village & P.O. Dhani Khadra, P.S. & Tehsil New Kathana, Distt. Sikar, Rajasthan.
MACT No. 441/12 Smt. Sarita & Ors. v. Sh. Deep Chand Saini & Ors. Page 3 of 35 DAR No. 87/DAR/13 Sh. Madhu Ram v. Sh. Deep Chand Saini & Ors. Page 3 of 35 DAR No. 89/DAR/13 Sh. Gulab Dass v. Sh. Deep Chand Saini & Ors. Page 3 of 35 DAR No. 90/DAR/13 Sh. Mahesh Mahto v. Deep Chand Saini & Ors. Page 3 of 352. Sh. Madan Lal Yadav (Owner) S/o Sh. Bansi Dhar Yadav, R/o Dhani Karni Sagar, Chimanpura, Shahpura, Distt. Jaipur, Rajasthan.
3. HDFC ERGO General Insurance Co. Ltd. (Insurer) C302, Ansal Plaza, Hudco Palace, Andrews Ganj, New Delhi.
... Respondents
(iv) DAR No. 90/DAR/13 Sh. Mahesh Mahto, S/o Sh. Musafir Mahto, R/o V & P.O. Mussapur, Distt. Samastipur, Bihar.
... Claimant Versus
1. Sh. Deep Chand Saini (Driver) S/o Sh. Kewal Ram, R/o Village & P.O. Dhani Khadra, P.S. & Tehsil New Kathana, Distt. Sikar, Rajasthan.
2. Sh. Madan Lal Yadav (Owner) S/o Sh. Bansi Dhar Yadav, R/o Dhani Karni Sagar, Chimanpura, Shahpura, Distt. Jaipur, Rajasthan.
3. HDFC ERGO General Insurance Co. Ltd. (Insurer) C302, Ansal Plaza, Hudco Palace, Andrews Ganj, New Delhi.
... Respondents
MACT No. 441/12 Smt. Sarita & Ors. v. Sh. Deep Chand Saini & Ors. Page 4 of 35
DAR No. 87/DAR/13 Sh. Madhu Ram v. Sh. Deep Chand Saini & Ors. Page 4 of 35
DAR No. 89/DAR/13 Sh. Gulab Dass v. Sh. Deep Chand Saini & Ors. Page 4 of 35
DAR No. 90/DAR/13 Sh. Mahesh Mahto v. Deep Chand Saini & Ors. Page 4 of 35
FILED ON : 26.02.2013
RESERVED ON : 12.11.2013
DECIDED ON : 20.11.2013
: J U D G M E N T :
1. These three D.A. Reports i.e. 87, 89 and 90/DAR/13 where Sh. Madhu Ram, Sh. Gulab Das and Sh. Mahesh Mehto are the claimants and one Claim Petition i.e. MACT No. 441/12 shall be disposed of vide this common award because the driver/Respondent No. 1, owner/Respondent No. 2 and insurer/Respondent No. 3 are same in all these four matters and these matters have arisen out of a single road traffic accident.
2. First facts as are stated in the Claim Petition of Smt. Sarita & Ors. are taken up for consideration.
3. Claimants in this claim petition are widow, two minor children and parents of the deceased late Sh. Sandeep Kumar who was 33 years of age at the time of his accidental death and was employed as Manager Marketing in JMD Property Management Services at a salary of Rs. 35,000/ per month.
4. In this claim petition, the sequence of events leading to the accident is that on 27.09.12, the deceased was going on his motorcycle bearing no. DL4SAR6133 Hero Honda from Gurgaon after his duty to his house. Near Janki MACT No. 441/12 Smt. Sarita & Ors. v. Sh. Deep Chand Saini & Ors. Page 5 of 35 DAR No. 87/DAR/13 Sh. Madhu Ram v. Sh. Deep Chand Saini & Ors. Page 5 of 35 DAR No. 89/DAR/13 Sh. Gulab Dass v. Sh. Deep Chand Saini & Ors. Page 5 of 35 DAR No. 90/DAR/13 Sh. Mahesh Mahto v. Deep Chand Saini & Ors. Page 5 of 35 Chawk, Sector23, Dwarka, New Delhi a truck bearing no. RZ14GC9149 came from backside, loaded with dust and being driven in a rash and negligent manner and hit the motorcycle of the deceased who fell down on the road.
5. It is stated that the head of the deceased, despite wearing helmet, was crushed under the truck.
6. Thereafter, the offending vehicle overturned and the victim of the accident suffered fatal injuries.
7. It is stated that FIR No. 155/12 is registered at P.S. Dwarka, Sector23 under Section 279/337/304 A of IPC against Respondent No. 1.
8. Attributing accidental death of the deceased solely to the negligent driving of the driver of the offending vehicle, the claimants have claimed a compensation of Rs. 1 crore with interest @ 18% p.a. from the date of filing of this claim petition till its realization from the respondents.
9. A common written statement is filed by Respondent No. 1 and 2 where they have stated that the driver had a valid driving license and FIR is registered on false and fabricated grounds. The truck was insured by Respondent No. 3 and therefore liability to pay the compensation is of Respondent No. 3. Rest of the contents of claim petition were also denied.
10. Insurance company raised several objections and one of the objections raised is that unless it is proved by the insured that the alleged offending vehicle was being driven MACT No. 441/12 Smt. Sarita & Ors. v. Sh. Deep Chand Saini & Ors. Page 6 of 35 DAR No. 87/DAR/13 Sh. Madhu Ram v. Sh. Deep Chand Saini & Ors. Page 6 of 35 DAR No. 89/DAR/13 Sh. Gulab Dass v. Sh. Deep Chand Saini & Ors. Page 6 of 35 DAR No. 90/DAR/13 Sh. Mahesh Mahto v. Deep Chand Saini & Ors. Page 6 of 35 with a valid permit covering the alleged date and place of accident, insurance company will not be liable to pay compensation to the claimants.
11. Therefore, to decide the compensation payable to the claimants, following issues were framed in MACT Petition No. 441/12:
1) Whether Sh. Sandeep Kumar S/o Sh.
Satish Kumar sustained fatal injuries in a motor vehicle accident dtd 27/09/2012 due to rash or negligent driving of vehicle i.e. Truck bearing registration no. RZ14 GC9149 by R1, owned by R2 and insured with R3? ... OPP
2) Whether the petitioners are entitled to claim compensation, if so, what amount and from whom? ... OPP
3) Relief.
12. Claimants have examined five witnesses in support of their claim petition.
13. First widow of the deceased had entered in the witness box as PW1 and proved educational qualification certificates of the deceased as Ex. PW1/13, salary slip for the month of November, 2005 when the deceased was employed with LG Electronics India Pvt. Ltd. as Ex. PW1/4, salary slip of the deceased when he was employed with R.N. Consultant as Ex. PW1/5, appointment letter dated 06.12.07 given by Kotak Mahindra Old Mutual Life Insurance Ltd. to the deceased as MACT No. 441/12 Smt. Sarita & Ors. v. Sh. Deep Chand Saini & Ors. Page 7 of 35 DAR No. 87/DAR/13 Sh. Madhu Ram v. Sh. Deep Chand Saini & Ors. Page 7 of 35 DAR No. 89/DAR/13 Sh. Gulab Dass v. Sh. Deep Chand Saini & Ors. Page 7 of 35 DAR No. 90/DAR/13 Sh. Mahesh Mahto v. Deep Chand Saini & Ors. Page 7 of 35 Ex. PW1/6, appointment letter given by Manpower Services India Pvt. Ltd. dated 08.08.11 given to the deceased as Ex. PW1/7, appointment letter dated 02.08.12 given by JMD Property Management Services to the deceased for the post of Manager Marketing at a salary of Rs. 4,20,000/ p.a. as Ex. PW1/8, Voter Card of the deceased as Ex. PW1/9, PAN Card of the deceased as Ex. PW1/10, driving license of the deceased as Ex. PW1/11, Voter Card of PW1 as Ex. PW1/12, discharge slip of Lok Nayak Hospital after birth of second child of the deceased as Ex. PW1/13, Adhar Card of Claimant No. 2 Master Somye as Ex. PW1/14 and the Voter Cards of the parents of the deceased as Ex. PW1/15 and 16.
14. In cross examination by counsel for insurance company, PW1 deposed that she is not an eye witness to the accident; she is a housewife; her father in law was not doing any job anywhere and she has not received any monitory relief from the employer of the deceased. Other suggestions contrary to her case were denied by her.
15. Second witness examined by the claimants was H.C. Suresh Kumar as PW2 who produced FIR No. 153/12 which was exhibited as Ex. PW2/1.
16. Third witness examined by the claimants was Sh. Jagjit Gupta, Clerk, Canara Bank who produced copy of cheque for Rs. 29,000/ given to Smt. Sarita, widow of the deceased by JMD Property Service Management Services on 08.10.12 which was exhibited as Ex. PW3/1 and statement of MACT No. 441/12 Smt. Sarita & Ors. v. Sh. Deep Chand Saini & Ors. Page 8 of 35 DAR No. 87/DAR/13 Sh. Madhu Ram v. Sh. Deep Chand Saini & Ors. Page 8 of 35 DAR No. 89/DAR/13 Sh. Gulab Dass v. Sh. Deep Chand Saini & Ors. Page 8 of 35 DAR No. 90/DAR/13 Sh. Mahesh Mahto v. Deep Chand Saini & Ors. Page 8 of 35 account of JMD Property Management Services to show debit of this amount from their account as Ex. PW3/2.
17. Eye witness to the accident, Sh. Vipin Uprati was examined as PW4. He stated that on the date of accident he had seen truck no. RJ14GC9149 overturning at a red light crushing a motorcyclist driving motorcycle no. DL4SAR6133. He stated that in this accident, twothree labourers were also injured.
18. The witness was not cross examined by Respondent No. 1 and 2 although Respondent No. 1 was present when evidence of PW4 was recorded.
19. PW4 was cross examined by the counsel for the insurance company but nothing worth noticing came on the record.
20. Lastly, claimants examined Sh. Amrish Gupta, Proprietor of JMD Property Management Services as PW5 who proved appointment letter given to the deceased as Ex. PW5/1.
21. In cross examination, PW5 deposed that the employees in Sales Marketing Department are not permanent employees and as they work sometimes only for few months, their names are not shown as employees in the ITRs filed by him.
22. No other witness was examined by the claimants.
23. On behalf of insurance company, evidence of Sh. Shyam Charan Vats, Assistant Manager of Insurance Company MACT No. 441/12 Smt. Sarita & Ors. v. Sh. Deep Chand Saini & Ors. Page 9 of 35 DAR No. 87/DAR/13 Sh. Madhu Ram v. Sh. Deep Chand Saini & Ors. Page 9 of 35 DAR No. 89/DAR/13 Sh. Gulab Dass v. Sh. Deep Chand Saini & Ors. Page 9 of 35 DAR No. 90/DAR/13 Sh. Mahesh Mahto v. Deep Chand Saini & Ors. Page 9 of 35 was recorded in D.A. Report 90/DAR/13 titled as Mahesh Mehto v. Deepchand Saini & Ors. This witness had stated that insurance company had served a notice to owner of the vehicle to produce original insurance policy, registration certificate and permit with its verification report covering date of accident and place of accident i.e. Delhi. True copy of insurance policy was exhibited as Ex. R3W1/1, the notice was exhibited as Ex. R3W1/2 and the postal receipt as per which this notice was sent to the owner was proved as Ex. R3W1/3. R3W1 stated that the vehicle was being plied in Delhi without a valid permit because the permit for Home State was from 27.07.10 to 26.07.15 but authorisation for other States had expired on 26.07.11 much before the date of accident i.e. 27.09.12. So far as three other claimants are concerned who were traveling as labourers in the truck, it was stated that they were unauthorised passengers and insurance company is not liable to pay any compensation to them.
24. No evidence was led on behalf of Respondent No. 1 and 2.
25. On the basis of pleadings of the parties, evidence on record and arguments addressed, issuewise findings are as under: ISSUE NO. 1
26. Burden of proving this issue is on the claimants.
27. For succeeding in a claim petition filed under Section 166 of the Motor Vehicles Act, it is for the claimants to MACT No. 441/12 Smt. Sarita & Ors. v. Sh. Deep Chand Saini & Ors. Page 10 of 35 DAR No. 87/DAR/13 Sh. Madhu Ram v. Sh. Deep Chand Saini & Ors. Page 10 of 35 DAR No. 89/DAR/13 Sh. Gulab Dass v. Sh. Deep Chand Saini & Ors. Page 10 of 35 DAR No. 90/DAR/13 Sh. Mahesh Mahto v. Deep Chand Saini & Ors. Page 10 of 35 prove that the vehicle which caused the accident was being driven rashly and negligently by its driver.
28. This is sine qua non for getting the relief.
29. The case of claimants in claim petition is that on the date of accident i.e. 27.09.12, the deceased late Sh. Sandeep Kumar was coming on his motorcycle bearing no. DL4SAR6133 Hero Honda Ambition from Gurgaon after his duty to his house. Near Janki Chawk, Sector23, Dwarka a truck bearing no. RZ14GC9149 came from backside loaded with dust and it was being driven in a rash and negligent manner and at a high speed. It is alleged that the said truck hit motorcycle of the deceased and the truck overturned resulting in grievous injuries to the deceased which turned out to be fatal.
30. Respondent No. 1 and 2 have filed a common written statement stating that the FIR is lodged against Respondent No. 1 on false and fabricated grounds. Allegations of rash and negligent driving against Respondent No. 1 were denied and rest of the contents of claim petition were also denied.
31. However, claimants have examined an eye witness PW4 Sh. Vipin Uprati who has also made allegations of negligent driving against Respondent No. 1. Charge sheet is filed on the basis of statement of this very eye witness.
32. When this witness deposed against Respondent No. 1, Respondent No. 1 did not cross examine him to deny MACT No. 441/12 Smt. Sarita & Ors. v. Sh. Deep Chand Saini & Ors. Page 11 of 35 DAR No. 87/DAR/13 Sh. Madhu Ram v. Sh. Deep Chand Saini & Ors. Page 11 of 35 DAR No. 89/DAR/13 Sh. Gulab Dass v. Sh. Deep Chand Saini & Ors. Page 11 of 35 DAR No. 90/DAR/13 Sh. Mahesh Mahto v. Deep Chand Saini & Ors. Page 11 of 35 allegations of rash and negligent driving made against him.
33. Respondent No. 1 did not enter in the witness box to prove his innocence.
34. Therefore, the allegations of rash and negligent driving made against Respondent No. 1 have remained unrebutted and unchallenged.
35. Police after investigation has filed charge sheet against Respondent No. 1 under Section 279/337 of IPC which is also prima facie suggestive of negligence of Respondent No.
1.
36. In Ranu Bala Paul & Ors. v. Bani Chakraborty & Ors. 1999 ACJ 634, the Hon'ble Gawhati High Court has observed as under: "In deciding a matter tribunal should bear in mind the caution struck by the Apex Court that a claim before the Motor Accidents Claims Tribunal is neither a criminal case nor a civil case. In a criminal case in order to have conviction, the matter is to be proved beyond reasonable doubt and in a civil case the matter is to be decided on the basis of preponderance of evidence, but in a claim before the Motor Accidents Claims Tribunal the standard of proof is much below than what is required in a criminal case as well as in a civil case. No doubt before the tribunal there must be some material on the basis of which the tribunal can arrive or decide things necessary to be decided for awarding compensation. But the tribunal is not expected to take or to adopt the nicety of a civil or of a criminal case. After all, it is a summary inquiry and this is a legislation for the welfare of MACT No. 441/12 Smt. Sarita & Ors. v. Sh. Deep Chand Saini & Ors. Page 12 of 35 DAR No. 87/DAR/13 Sh. Madhu Ram v. Sh. Deep Chand Saini & Ors. Page 12 of 35 DAR No. 89/DAR/13 Sh. Gulab Dass v. Sh. Deep Chand Saini & Ors. Page 12 of 35 DAR No. 90/DAR/13 Sh. Mahesh Mahto v. Deep Chand Saini & Ors. Page 12 of 35 the society"
37. In the case of National Insurance Co. Ltd. v. Vijay Laxmi & Ors. MAC APP. No. 375/06 dated 05.07.12, the Hon'ble High Court of Delhi has held as under: "8. In Bimla Devi and Ors. v. Himachal Road Transport Corporation and Ors., (2009) 13 SC 530, the Supreme Court held that in a petition under Section 166 of the Act, the Claimants were merely to establish their case on the touchstone of preponderance of probability and holistic view is to be taken while dealing with the Claim Petition under the Motor Vehicles Act. Para 15 of the report is extracted hereunder: "15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied."
9. The report in Bimla Devi (Supra) was relied on by the Supreme Court in its latest judgments in Parmeshwari v. Amir Chand (2011) 11 SCC 635 and Kusum Lata v. Satbir, (2011) 3 SCC 646."
38. In the case of National Insurance Company Ltd. v. Pushpa Rana & Ors.: 2009 ACJ 287, the Hon'ble High Court of Delhi has held that: "The last contention of the appellant insurance company is that the respondentsclaimants should have proved negligence on the part of the MACT No. 441/12 Smt. Sarita & Ors. v. Sh. Deep Chand Saini & Ors. Page 13 of 35 DAR No. 87/DAR/13 Sh. Madhu Ram v. Sh. Deep Chand Saini & Ors. Page 13 of 35 DAR No. 89/DAR/13 Sh. Gulab Dass v. Sh. Deep Chand Saini & Ors. Page 13 of 35 DAR No. 90/DAR/13 Sh. Mahesh Mahto v. Deep Chand Saini & Ors. Page 13 of 35 driver and in this regard the counsel has placed reliance on the judgment of the Hon'ble Apex Court in Oriental Insurance Co. Ltd. v. Meena Variyal (Supra). On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced: (i) certified copy of the criminal record of criminal case in F.I.R No. 955 of 2004, pertaining to involvement of the offending vehicle; (ii) criminal record showing completion of investigation of police and issue of chargesheet under Sections 279/304A, Indian Penal Code against the driver; (iii) certified copy of F.I.R., wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of the deceased. These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under the Motor Vehicles Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Hence, this contention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on the part of the driver."
39. This case was noticed by Hon'ble High Court of Delhi in the case titled as Cholamandalam M.S. General Insurance Co. Ltd. v. Kamlesh: 2009 (3) AD (Delhi) 310 where adverse inference was drawn because the driver of the offending vehicle had not appeared in the witness box to corroborate his defence taken in the written statement. It was noted that there is nothing on record to show that the claimant had any enmity with the driver of offending vehicle MACT No. 441/12 Smt. Sarita & Ors. v. Sh. Deep Chand Saini & Ors. Page 14 of 35 DAR No. 87/DAR/13 Sh. Madhu Ram v. Sh. Deep Chand Saini & Ors. Page 14 of 35 DAR No. 89/DAR/13 Sh. Gulab Dass v. Sh. Deep Chand Saini & Ors. Page 14 of 35 DAR No. 90/DAR/13 Sh. Mahesh Mahto v. Deep Chand Saini & Ors. Page 14 of 35 so as to falsely implicate him in the case.
40. Therefore, this issue is decided in favour of claimants and against the respondents. ISSUE NO. 2:
41. The deceased had done six months Advance Computer Software Course from Lal Bahadur Shastri Training Institute. In the year 2005, he was employed with LG Electronics and was earning Rs. 10,394/ per month. This is evident from Ex. PW1/4. Thereafter, he worked for Kotak Mahindra Old Mutual Life Insurance Ltd. and his total annual cost to the company was Rs. 3 lacs. This appointment letter dated 06.12.07 is Ex. PW1/6. Thereafter, he was employed by Manpower Services India Ltd. at a salary of Rs. 26,374/ per month. This is evident from Ex. PW1/7. Lastly, he was engaged by JMD Property Management Services at a salary of Rs. 35,000/ per month or Rs. 4,20,000/ p.a. This is evident from Ex. PW1/8. However, once Conveyance/Mobile Expenses of Rs. 2000/ is deducted from this amount, the monthly salary would be Rs. 33,000/.
42. Claimants have examined the employer of the deceased as PW5 who also proved appointment letter given to the deceased as Ex. PW5/1.
43. Claimants have also examined a witness from Canara Bank as PW3 who proved that a cheque for Rs. 29,000/ was given to the widow of the deceased by the employer for salary for number of days worked by the MACT No. 441/12 Smt. Sarita & Ors. v. Sh. Deep Chand Saini & Ors. Page 15 of 35 DAR No. 87/DAR/13 Sh. Madhu Ram v. Sh. Deep Chand Saini & Ors. Page 15 of 35 DAR No. 89/DAR/13 Sh. Gulab Dass v. Sh. Deep Chand Saini & Ors. Page 15 of 35 DAR No. 90/DAR/13 Sh. Mahesh Mahto v. Deep Chand Saini & Ors. Page 15 of 35 deceased for the said employer. This cheque was proved as Ex. PW3/1. Factum of debit of this cheque amount from the bank account statement of the employer was proved from Ex. PW3/2, Current Account Statement of the employer.
44. The above shows that annual income of the deceased was Rs. 3,96,000/ per month. Income tax is to be deducted from this salary. Income up till Rs. 1,60,000/ being exempted from the tax, the taxable income would be Rs. 2,36,000/. 10% of this is taxable. Therefore, taxable income is Rs. 23,600/. Once this amount is deducted from Rs. 3,96,000/, the annual income of the deceased would be Rs. 3,72,400/.
45. There are five dependents. One child was borne after the death of the deceased. Therefore, deduction for personal expenses of the deceased would be 1/4th. After deducting 1/4th from Rs. 3,72,400/ loss for the claimants on the death of the deceased would be Rs. 2,79,300/.
46. Evidence regarding employment of the deceased with different employers in the past shows that the deceased had bright future prospects because his salary had increased from Rs. 10,000/ in the year 2005 to Rs. 35,000/ in the year 2012. Since the age of the deceased was less than 40 years, claimants are entitled to a compensation to an extent of 50% for loss of future prospects. Once Rs. 1,39,650/ is added to Rs. 2,39,300/, financial loss for the claimants will be Rs. 4,18,950/ p.a. MACT No. 441/12 Smt. Sarita & Ors. v. Sh. Deep Chand Saini & Ors. Page 16 of 35 DAR No. 87/DAR/13 Sh. Madhu Ram v. Sh. Deep Chand Saini & Ors. Page 16 of 35 DAR No. 89/DAR/13 Sh. Gulab Dass v. Sh. Deep Chand Saini & Ors. Page 16 of 35 DAR No. 90/DAR/13 Sh. Mahesh Mahto v. Deep Chand Saini & Ors. Page 16 of 35
47. The deceased was 33 years of age at the time of his death. His date of birth as per Ex. PW1/1 was 31.10.1978 and the accident had taken place on 27.09.12. Therefore, multiplier of 16 will apply and total Financial Loss for the claimants would be Rs. 67,03,200/.
48. In the case of Rajesh & Others Vs. Rajbir Singh & Others, 2013(6) SCALE 563, the Hon'ble Supreme Court has awarded a compensation of Rs. 1,00,000/ for loss of consortium of a spouse.
49. Therefore, the widow of the deceased is awarded a compensation of Rs. 1,00,000/ towards Loss of Consortium.
50. In the case of Rajesh (supra), the Hon'ble Supreme Court has made following observations vis a vis Cremation Charges: "We may also take judicial notice of the fact that the Tribunals have been quite frugal with regard to award of compensation under the head 'Funeral Expenses'. The 'Price Index', it is a fact has gone up in that regard also. The head 'Funeral Expenses' does not mean the fee paid in the crematorium or fee paid for the use of space in the cemetery. There are many other expenses in connection with funeral and, if the deceased is follower of any particular religion, there are several religious practices and conventions pursuant to death in a family. All those are quite expensive. Therefore, we are of the view that it will be just, fair and equitable, under the head of 'Funeral Expenses', in the absence of evidence to the contrary for higher expenses, to award at least an amount of Rs.
MACT No. 441/12 Smt. Sarita & Ors. v. Sh. Deep Chand Saini & Ors. Page 17 of 35 DAR No. 87/DAR/13 Sh. Madhu Ram v. Sh. Deep Chand Saini & Ors. Page 17 of 35 DAR No. 89/DAR/13 Sh. Gulab Dass v. Sh. Deep Chand Saini & Ors. Page 17 of 35 DAR No. 90/DAR/13 Sh. Mahesh Mahto v. Deep Chand Saini & Ors. Page 17 of 3525,000/."
51. Therefore, the claimant is awarded Rs. 25,000/ towards Cremation Charges.
52. Minor children of the deceased would also be entitled to a compensation of Rs. 1,00,000/ for Loss of Care and Guidance of their father.
53. Therefore, total compensation payable to the claimants would be Rs. 69,28,200/ which will be paid with interest @ 7.5% p.a. from the date of filing of this claim petition which is 17.12.12 till its realization.
54. Next question is which of the respondents is liable to pay this compensation to the claimants?
55. The defence of the insurance company is that there was no permit for the State of Delhi for the offending vehicle on the date of accident. The defence is that the permit for Home State was from 27.07.10 to 26.07.15 but authorisation for other States required under Section 88 (14)
(b) of Motor Vehicles Act had expired on 26.07.11 much before the alleged date of accident i.e. 27.09.12.
56. There is no evidence brought on record by owner of the vehicle.
57. Since the accident had taken place in Delhi, the Investigating Officer of the case has filed D.A. Report. In the D. A. Report, the Investigating Officer has verified the permit issued by the Transport Authority, Jaipur. The said Transport MACT No. 441/12 Smt. Sarita & Ors. v. Sh. Deep Chand Saini & Ors. Page 18 of 35 DAR No. 87/DAR/13 Sh. Madhu Ram v. Sh. Deep Chand Saini & Ors. Page 18 of 35 DAR No. 89/DAR/13 Sh. Gulab Dass v. Sh. Deep Chand Saini & Ors. Page 18 of 35 DAR No. 90/DAR/13 Sh. Mahesh Mahto v. Deep Chand Saini & Ors. Page 18 of 35 Authority, in response to the request of the Investigating Officer, has replied that the permit is valid throughout the territory of India.
58. The National Permit for Public Carrier for this vehicle was got attested by the Investigating Officer which shows that it is valid from 27.07.2010 to 26.07.2015 and is valid throughout the territory in India.
59. Therefore, as the documents which are got attested by the Investigating Officer during the investigation from Transport Authority and are filed along with D.A. Report have presumptive value, it shall be presumed that the vehicle had a valid permit on the date of accident.
60. Moreover, the Insurance Company has not taken a specific defence in its written statement that the vehicle was being driven without a proper permit in Delhi. The defence of the Insurance Company in Para 2A of its written statement is as under: "2A. That the contract of Insurance is a contract of indemnity and if the insured wants to take the benefit of the contract of the insurance then he shall prove the following in view of Section 106 of the Indian Evidence Act.
(a)...
(b)...
(c) Alleged offending vehicle was being driven with valid permit covering alleged date and place of accident in view of Section 88 of M.V. Act.
(d)...
(e). Use of vehicle under general condition of MACT No. 441/12 Smt. Sarita & Ors. v. Sh. Deep Chand Saini & Ors. Page 19 of 35 DAR No. 87/DAR/13 Sh. Madhu Ram v. Sh. Deep Chand Saini & Ors. Page 19 of 35 DAR No. 89/DAR/13 Sh. Gulab Dass v. Sh. Deep Chand Saini & Ors. Page 19 of 35 DAR No. 90/DAR/13 Sh. Mahesh Mahto v. Deep Chand Saini & Ors. Page 19 of 35 Permit, in view of Section 84 and 85 of M.V. Act. (f ). Use of vehicle under a permit and its condition attached thereto within the meaning of Section 66 of M.V. Act and rule made and conditions imposed by STA Department and notification, if any, issued by concerned STA Department relevant on the date of alleged accident. In case, the insured / owner failed to prove the above then no liability can be fastened upon the answering respondent."
61. Therefore, the Insurance Company has not taken a specific defence that the insured vehicle was being driven without a permit.
62. The pleading of the Insurance Company is only that if the insured wants to take the benefit of the contract of insurance, then he has to prove that the vehicle was being driven on the date of accident under a valid permit.
63. As the Insurance Company has not taken a defence that the insured vehicle was being plied in Delhi without a valid permit, this defence cannot be now taken by the Insurance Company in arguments.
64. Moreover, the breach of the conditions of policy or availability of a statutory defence is to be proved by the insurer and its absence is not to be proved by the insured.
65. It is not for the insured to prove that the Insurance Company has no statutory defence or there is no breach of terms and conditions of policy but it is for the insurer to prove by leading evidence that it has a statutory defence or there is a MACT No. 441/12 Smt. Sarita & Ors. v. Sh. Deep Chand Saini & Ors. Page 20 of 35 DAR No. 87/DAR/13 Sh. Madhu Ram v. Sh. Deep Chand Saini & Ors. Page 20 of 35 DAR No. 89/DAR/13 Sh. Gulab Dass v. Sh. Deep Chand Saini & Ors. Page 20 of 35 DAR No. 90/DAR/13 Sh. Mahesh Mahto v. Deep Chand Saini & Ors. Page 20 of 35 breach in terms and conditions of policy.
66. Even assuming, though not pleaded that the case of the Insurance Company is that the vehicle was being plied in Delhi on the date of accident without permit, the Insurance Company has not proved this defence by summoning a witness from Transport Authority, Jaipur to show that there was no authorization for State of Delhi.
67. Though the documents filed by the Investigating Officer along with D.A. Report have a presumptive value but the documents filed by the Investigating Officer do not support the case of the Insurance Company.
68. As per permit placed on record by the Investigating Officer, it was valid for five years i.e. from 27.07.2010 to 26.07.2015 and it is valid for throughout the territory in India.
69. Therefore, from the admitted documents filed on record by the Investigating Officer, the Insurance Company has not succeeded in proving that the vehicle was being plied in Delhi on the date of accident without a valid permit.
70. For proposition of law that the Insurance Company has to prove plying of the vehicle without permit by calling a witness from the Transport Authority, reliance can be placed on the judgment passed by the Hon'ble High Court of Delhi in the case of Bajaj Allianze General Insurance Co. Ltd. v. Bhikhari Yadav, in MAC APP. No. 727/11 dated 03.01.12 where it is held as under: "Turning to the second limb of argument i.e. MACT No. 441/12 Smt. Sarita & Ors. v. Sh. Deep Chand Saini & Ors. Page 21 of 35 DAR No. 87/DAR/13 Sh. Madhu Ram v. Sh. Deep Chand Saini & Ors. Page 21 of 35 DAR No. 89/DAR/13 Sh. Gulab Dass v. Sh. Deep Chand Saini & Ors. Page 21 of 35 DAR No. 90/DAR/13 Sh. Mahesh Mahto v. Deep Chand Saini & Ors. Page 21 of 35 issuance of permit to ply vehicle no. DL1G2715 on the date of accident, the appellant insurance company did not summon any record from the relevant office of the Delhi Transport Authority that on the date of the accident, the vehicle did not have any permit to ply on the road. Here again, the insurance company failed to discharge the onus that there was breach of the condition of policy in this regard."
71. Moreover, in the case of Kamala Mangalal Vayani v. NIA Co. : 2010 (12) SCC 99; it is held as under: "The claimants are not expected to prove that the vehicle had a valid permit, nor prove that the owner of the vehicle did not commit breach of any of the terms of the policy. It is for the insurer who derives its liability under the policy, to establish that inspite of the comprehensive policy issued by it, it is not liable on account of the requirements of the policy not being fulfilled. It was open to the insurer to apply to the concerned Transport Authority for a certificate to show the date on which the permit was granted and that as on the date of the accident, the vehicle did not have a permit, and produce the same as evidence. It failed to do so. The High Court committed an error in expecting the claimants to prove that the vehicle possessed a valid permit."
72. Further, even assuming, though neither pleaded nor proved that there was no authorization for State of Delhi, even then for territorial breach, recovery right cannot be given.
73. The statutory defence given to an insurance MACT No. 441/12 Smt. Sarita & Ors. v. Sh. Deep Chand Saini & Ors. Page 22 of 35 DAR No. 87/DAR/13 Sh. Madhu Ram v. Sh. Deep Chand Saini & Ors. Page 22 of 35 DAR No. 89/DAR/13 Sh. Gulab Dass v. Sh. Deep Chand Saini & Ors. Page 22 of 35 DAR No. 90/DAR/13 Sh. Mahesh Mahto v. Deep Chand Saini & Ors. Page 22 of 35 company is available when the vehicle is being plied "for a purpose not allowed by the permit".
74. Every violation of condition of permit is not sufficient to grant recovery rights or exoneration in favour of insurance company.
75. The Hon'ble High Court of Delhi in the case of Mahender Singh v. Oriental Insurance Co. Ltd. & Ors., in MAC APP. No. 430/12, in his judgment dated 10.05.12 has held that: "User of a transport vehicle for the purpose not allowed by the permit would be using a goods vehicle as a passengers vehicle, a passengers vehicle as a goods vehicle, etc. and not each and every contravention of the condition of permit issued by the concerned Transport Authority".
76. In the case of National Insurance Company v. T. Elumalai and Anr. (1989) 1 MLJ 489, the offending vehicle, an auto rickshaw, was found plying in the city of Madras without any permit to ply the same in Madras. The Claims Tribunal had held that there was no breach of the terms of the policy of insurance and made appellant liable to pay the compensation.
77. Order of Tribunal was challenged by appellant/ Insurance Company before the Hon'ble Madras High Court with the plea that the auto rickshaw belonging to the first respondent as per permit could not ply in terms of violation of permit, the vehicle was found plying in Madras and that in MACT No. 441/12 Smt. Sarita & Ors. v. Sh. Deep Chand Saini & Ors. Page 23 of 35 DAR No. 87/DAR/13 Sh. Madhu Ram v. Sh. Deep Chand Saini & Ors. Page 23 of 35 DAR No. 89/DAR/13 Sh. Gulab Dass v. Sh. Deep Chand Saini & Ors. Page 23 of 35 DAR No. 90/DAR/13 Sh. Mahesh Mahto v. Deep Chand Saini & Ors. Page 23 of 35 view of this violation of the terms of the permit, there was also violation of the terms of the policy of insurance and as such appellant be exonerated from liability to indemnify the claim.
78. Therefore, the question that had arisen before the Hon'ble High Court of Madras was whether the violation of the conditions of the permit relating to the geographical limits within which the vehicle could ply would entitle the insurance company to disclaim its liability under the policy of insurance.
79. In para 10,11 and 12, the Hon'ble High Court held as under: ''10. The insurance policy is essentially a contract between the insurer and the insured, whereby the former in consideration of receiving monetary payment in the form of premiums, undertakes to indemnify the latter in the event of certain contingencies happening. Being an agreement between the two parties, the policy of insurance is bound to contain several terms and conditions, subject to which the respective parties contract to act. While the rights inter se the insurer and the insured, would primarily be determined by the terms of the policy of insurance, the rights of third parties created under the Act, are to be determined with reference to the relevant provisions of the Act, subject to which the policy should be. It would not be open either to the insured or the insurer, to take shelter under any of the terms of the policy of insurance, except in the manner provided under the Act. The insurer only plays the role of one who has undertaken to indemnify the claim on behalf of a tortfeasor. By MACT No. 441/12 Smt. Sarita & Ors. v. Sh. Deep Chand Saini & Ors. Page 24 of 35 DAR No. 87/DAR/13 Sh. Madhu Ram v. Sh. Deep Chand Saini & Ors. Page 24 of 35 DAR No. 89/DAR/13 Sh. Gulab Dass v. Sh. Deep Chand Saini & Ors. Page 24 of 35 DAR No. 90/DAR/13 Sh. Mahesh Mahto v. Deep Chand Saini & Ors. Page 24 of 35 himself, the insurer has not placed in the proceedings instituted under the Act. It is only by virtue of Section 96 (2) of the Act that the insurer is entitled to notice through court of the bringing of proceedings regarding these claims and to be made a party to defend the action .
11. Since the question, to be decided in this case primarily depends upon the interpretation of Section 96 (2) of the Act, the same is extracted below:
(2) No sum shall be payable by an insurer under Subsection (1) in respect of any judgment unless before or after the commencement of the proceedings in which the judgment is given the insurer had notice through the court of the bringing of the proceedings, or in respect of any judgment so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceeding is so given shall be entitled be made a party thereto and to defend the action on any of the following grounds, namely:
(a) That the policy was canceled by mutual consent or by virtue of any provision contained therein before the accident giving rise to the liability, and that either the certificate of insurance was surrendered to the insurer or that the person to whom the certificate was issued had made an affidavit stating that the certificate has been lost or destroyed, or that either before or not later than fourteen days after the happening of the accident the insurer has commenced proceedings for cancellation of the certificates after compliance with the provisions of Section 105: or
(b) that there has been a breach of a specified condition of the policy, being one on the following conditions, namely:MACT No. 441/12 Smt. Sarita & Ors. v. Sh. Deep Chand Saini & Ors. Page 25 of 35 DAR No. 87/DAR/13 Sh. Madhu Ram v. Sh. Deep Chand Saini & Ors. Page 25 of 35 DAR No. 89/DAR/13 Sh. Gulab Dass v. Sh. Deep Chand Saini & Ors. Page 25 of 35 DAR No. 90/DAR/13 Sh. Mahesh Mahto v. Deep Chand Saini & Ors. Page 25 of 35
(1) a condition excluding the use of the vehicle :
(a) for hire or reward, where the vehicle is on the date of the contract of insurance, a vehicle not covered by a permit to ply for hire or reward, of
(b)for organized racing and speed testing, or
(c)for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle or
(d)without sidecar being attached, where the vehicle is amotorcycle or
(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving license during the period of disqualification, or
(iii) a condition excluding the liability for injury caused or contribution to by condition of war civil war, riot or civil commotion; or
(c) that the policy is void on the ground that it was obtained by the non disclosure of a material fact or by a representation of fact which was false in some material particular.
The above section lays down in clear terms that the insurer, who has been made a party and who seeks to defend the action, can do so only on the grounds specified in Section 96 (2) (a) (b) or (c) of the Act. Whatever the defence the Insurer chooses to take, should be strictly traceable to any one of these clauses. The Supreme Court has pointed out in British India Genl. Ins. Co.v. Captain Itbar Singh and Ors. 1958 ACJ 65(SC ). (2)Apart from the statute, an insurer has no right to be made a party to the action by the injured person against the insured causing the injury. Subsection (2) of Section 96 however gives him the right to be made party to the suit and to defend it. The right therefore is created by statute and its content necessarily depends on MACT No. 441/12 Smt. Sarita & Ors. v. Sh. Deep Chand Saini & Ors. Page 26 of 35 DAR No. 87/DAR/13 Sh. Madhu Ram v. Sh. Deep Chand Saini & Ors. Page 26 of 35 DAR No. 89/DAR/13 Sh. Gulab Dass v. Sh. Deep Chand Saini & Ors. Page 26 of 35 DAR No. 90/DAR/13 Sh. Mahesh Mahto v. Deep Chand Saini & Ors. Page 26 of 35 the provisions of the statute. Subsection (2) clearly provides that an insurer, made a defendant to the action is not entitled to take any defence which is not specified in it. When the grounds of defence have been specified, they cannot be added to. The only manner of avoiding liability provided for in Subsection (2) is through the defences therein mentioned.
12. An analysis of the defences open to the insurance company indicates that Clause (a) deals with cancellation of a policy by mutual consent or by virtue of any provisions contained in the policy of insurance before the accident had taken place. Clause(c) deals with a contingency where the policy had been obtained by nondisclosure of material fact or by representation of a fact which was false in some material particular thereby rendering the policy itself void. Barring these two clauses, we have clause (b) which deals with a defence on the ground of breach of a specified condition of the policy. Here again, it is not the breach of each and every condition of the policy, the insured and the insurer had embodied in the policy that would provide the insurance company a defence to disclaim its liability. Clause(b) makes it clear that the condition, which, according to the insurance company, has been violated, should be one that is mentioned in the clause itself. The first category of such a condition deals with the use of the vehicle, the second regarding the person who was driving the vehicle at the time of the accident and the third, exclusion of liability in times of war, riot etc. Unless, therefore, the insurer established that the breach of the condition of the policy that he complains of comes within any one of the subclauses mentioned in Clause (b), the insurer cannot MACT No. 441/12 Smt. Sarita & Ors. v. Sh. Deep Chand Saini & Ors. Page 27 of 35 DAR No. 87/DAR/13 Sh. Madhu Ram v. Sh. Deep Chand Saini & Ors. Page 27 of 35 DAR No. 89/DAR/13 Sh. Gulab Dass v. Sh. Deep Chand Saini & Ors. Page 27 of 35 DAR No. 90/DAR/13 Sh. Mahesh Mahto v. Deep Chand Saini & Ors. Page 27 of 35 succeed, since the breach of any of the terms of the policy not mentioned in Clause (b), would not be a defence to the insurer. It is significant that even violation of any of the provision of the Act, violation of any of the rules framed under the Act, or violation of any of the terms of the permit under the Act cannot be a defence, except when it falls within the ambit of Sub Clauses (i)(ii) and (iii) of Section 96 (2) (b) of the Act.
80. Reference was made to Bnomang Rustomji Ginwala v. Ibrahim Vali Master 1982 ACJ 380 where it was held that mere fact that while driving the insured vehicle, the driver had committed breaches of rules framed under M.V. Act could not give valid defence to the insurer to escape its liability qua third parties as admittedly none of the breaches of the statutory rules, was covered by the conditions expressly mentioned in Section 96(2) of the Act.
81. Reference was also made to the case of Raghunath Eknath Hivale Vs Shardabai Karbhari Kala 1986 ACJ 460. In this case the truck was permitted to carry 7 passengers and could ply for hire for carrying goods. It was found to be carrying 700 baskets of tomato with 1516 owners thereof in violation of Bombay Motor Vehicles Rules. However, it was held that the insurer could avoid its liability only if the conditions specified in Section 96(2) are satisfied and that as far as third party risks are concerned, the liability being statutory, it cannot be over ridden by the terms of the contract MACT No. 441/12 Smt. Sarita & Ors. v. Sh. Deep Chand Saini & Ors. Page 28 of 35 DAR No. 87/DAR/13 Sh. Madhu Ram v. Sh. Deep Chand Saini & Ors. Page 28 of 35 DAR No. 89/DAR/13 Sh. Gulab Dass v. Sh. Deep Chand Saini & Ors. Page 28 of 35 DAR No. 90/DAR/13 Sh. Mahesh Mahto v. Deep Chand Saini & Ors. Page 28 of 35 of insurance between the parties.
82. Reference was also made to the case of Madras Motor & Ganaral Insurance Co. v. Nanjamma 1977 ACJ 241 where plea of the insurer of the offending vehicle was that the vehicle had carried seven passengers contrary to terms of permit issued under M.V. Act, which permitted carrying only five persons. It was held that though there was breach of the terms of the Permit regarding the maximum number of passengers which could be carried, since the car had not been used for different purpose, Section 96 (2) (b) (i) had not been attracted.
83. Reference was also made to the case of Oriental Insurance Company Ltd. v. Bishan Dass 1988 ACJ 106 where the vehicle in question was permitted to ply only on a particular route and in violation of that term of the permit, the vehicle was found plying on a different route wherein the accident had occurred. It was held that this violation of the terms of the permit did not attract Section 96 (2) (c) of the Act. This condition of the permit could not be said to be a breach of the condition relating to the purpose for which the permit was issued.
84. In para 17, it was lastly concluded in the case of T. Elumalai (Supra) that:
''It is, therefore, clear that an insurer is not entitled to take a defence, which is not specified in Section 96(2) of the Act. These provisions have to be construed strictly. As stated earlier, it is MACT No. 441/12 Smt. Sarita & Ors. v. Sh. Deep Chand Saini & Ors. Page 29 of 35 DAR No. 87/DAR/13 Sh. Madhu Ram v. Sh. Deep Chand Saini & Ors. Page 29 of 35 DAR No. 89/DAR/13 Sh. Gulab Dass v. Sh. Deep Chand Saini & Ors. Page 29 of 35 DAR No. 90/DAR/13 Sh. Mahesh Mahto v. Deep Chand Saini & Ors. Page 29 of 35 not the breach of any conditions of the policy of insurance, that would provide the insurer a defence under Section 96(2) of the Act. The policy of insurance may permit the insurer to avoid its liability under various circumstances. However, as against the liability of the insurer to third parties, the terms of the policy of insurance are subject to the provisions of Section 96(2) of the Act. If there is a breach the contract on the part of the insured the insure could proceed against the insured, but as far as the third party risks are concerned, the liability having been created by the statute, cannot be overridden by the terms of the contract of insurance between the parties. Section 96(2) of the Act, does not include violation of the terms of the permit related to plying in certain geographical areas. Hence, the plea that the auto rickshaw was found plying in the city of Madras contrary to its permit, even if established factually, cannot be a ground since the same does not fall within the ambit of Section 96(2) of the Act. It is not, therefore open to the appellant to plead that the autorickshaw was found plying in the city of Madras, in contravention of a condition in its permit restricting the geographical area wherein the vehicle could be plied.''
85. Therefore appeal of insurance company was dismissed .
86. In the case of Oriental Insurance Company Vs Banto Devi : III ( 2006) ACC 573; it was held that simply because the bus in question had been approved for plying within the area of Delhi and it was being driven outside Delhi, would not be a ground to absolve the insurance company of MACT No. 441/12 Smt. Sarita & Ors. v. Sh. Deep Chand Saini & Ors. Page 30 of 35 DAR No. 87/DAR/13 Sh. Madhu Ram v. Sh. Deep Chand Saini & Ors. Page 30 of 35 DAR No. 89/DAR/13 Sh. Gulab Dass v. Sh. Deep Chand Saini & Ors. Page 30 of 35 DAR No. 90/DAR/13 Sh. Mahesh Mahto v. Deep Chand Saini & Ors. Page 30 of 35 its liability.
87. In the case of Radhey Shyam Aggarwal Vs Gayatri Devi and Ors., 1998 ACJ 1177, in para 9, it was held as under: ''The contention that this stage carriage vehicle was carrying passengers more than its seating capacity provided in the permit, therefore, it would be a case of use of the vehicle not with the purpose provided for in the permit, cannot be accepted. The purpose of the stage carriage was to carry passengers and obviously the bus was carrying passengers. It was not being used for other purposes than carrying the passengers or being used like goods carrier. The vehicle was being used for sanctioned purpose and if any condition or conditions are violated either by over speeding or overloading or any condition of permit that will be a breach of condition of permit, but it cannot be said that the vehicle was used for the purpose not authorised by Permit''.
88. Present case also is not a case where the insured vehicle was being used for a ''purpose'' not allowed by the permit.
89. Therefore, there is no statutory defence available to the insurance company so far as Claim Petition of Smt. Sarita & Ors. is concerned.
90. Therefore, so far as the compensation payable to the present claimants Smt. Sarita & Ors. is concerned, the same shall be payable by the Insurance Company which be deposited within 30 days from today under intimation to the claimants as well as to the counsel for the claimants by MACT No. 441/12 Smt. Sarita & Ors. v. Sh. Deep Chand Saini & Ors. Page 31 of 35 DAR No. 87/DAR/13 Sh. Madhu Ram v. Sh. Deep Chand Saini & Ors. Page 31 of 35 DAR No. 89/DAR/13 Sh. Gulab Dass v. Sh. Deep Chand Saini & Ors. Page 31 of 35 DAR No. 90/DAR/13 Sh. Mahesh Mahto v. Deep Chand Saini & Ors. Page 31 of 35 Registered Post.
91. In case, even after passage of 90 days from today, the Insurance Company fails to deposit this compensation with proportionate interest, in that event, in the light of the judgment of the Hon'ble High Court of Delhi in the case of New India Assurance Company Limited Vs. Kashmiri Lal, 2007 ACJ 688, this compensation shall be recovered by attaching the bank account of the Insurance Company with a cost of Rs. 5,000/.
92. Considering the submissions of counsel for the claimants visavis financial conditions of the claimants, following directions are given for apportionment of compensation: (1) 25%, out of the total compensation awarded, with proportionate interest shall be payable in favour of Claimant No. 1, widow of the deceased. This amount shall be deposited by the Insurance Company in the name of Smt. Sarita. Out of this compensation, 10% compensation shall be released in her favour immediately. Balance compensation shall be deposited in 10 FDRs of equal amount for a period of 1 to 10 years in any nationalised bank of the choice of Claimant No.
1. Monthly interest will be credited in the Saving Bank Account of Claimant No. 1 regularly.
(2) 25% out of the total awarded compensation with proportionate interest shall be payable in favour of Claimant No. 2, Master Somya Rana, son of the deceased. This compensation will be kept in an FDR in any nationalised bank of the choice of Claimant No. 1 till the time Claimant MACT No. 441/12 Smt. Sarita & Ors. v. Sh. Deep Chand Saini & Ors. Page 32 of 35 DAR No. 87/DAR/13 Sh. Madhu Ram v. Sh. Deep Chand Saini & Ors. Page 32 of 35 DAR No. 89/DAR/13 Sh. Gulab Dass v. Sh. Deep Chand Saini & Ors. Page 32 of 35 DAR No. 90/DAR/13 Sh. Mahesh Mahto v. Deep Chand Saini & Ors. Page 32 of 35 No. 2 attains the age of 21 years. Monthly interest will be credited in the Saving Bank Account of Claimant No. 1 regularly.
(3) 25% out of the total awarded compensation with proportionate interest shall be payable in favour of Claimant No. 5, minor daughter of the deceased. This payment shall be deposited by the Insurance Company in the name of Kumari Kanishka. This compensation will be kept in an FDR in any nationalised bank of the choice of Claimant No. 1 till the time Claimant No. 5 attains age of 21 years. Monthly interest will be credited in the Saving Bank Account of Claimant No. 1.
(4) 12.5% of the total compensation with proportionate interest shall be payable in favour of Shri Satish Kumar Claimant No. 4, father of the deceased. The same shall be released in his favour immediately without any precondition of FDR considering his advanced age.
(5) 12.5% of the total compensation with proportionate interest shall be payable in favour of Smt. Pushpa Claimant No. 5, mother of the deceased. The same shall be released in her favour immediately without any precondition of FDR considering her advanced age.
(6) All the original FDRs shall remain with the bank. Only copies thereof will be given to the claimants. However, pass books will be given to the claimants. No cheque book shall be issued to the claimants.
(7) No loan or advance will be given against these deposits.
MACT No. 441/12 Smt. Sarita & Ors. v. Sh. Deep Chand Saini & Ors. Page 33 of 35 DAR No. 87/DAR/13 Sh. Madhu Ram v. Sh. Deep Chand Saini & Ors. Page 33 of 35 DAR No. 89/DAR/13 Sh. Gulab Dass v. Sh. Deep Chand Saini & Ors. Page 33 of 35 DAR No. 90/DAR/13 Sh. Mahesh Mahto v. Deep Chand Saini & Ors. Page 33 of 35(8) FDRs shall not be prematurely encashed without leave of this Tribunal.
93. Next, compensation payable to three claimants in D.A. Reports bearing No. 87, 89 and 90/DAR/13 is taken up for consideration.
94. All the three claimants have suffered simple injuries. None of the claimants has filed on record any medical bill for his treatment. They have admitted that they were sleeping in the rear part of the truck when the accident took place.
95. In the absence of any evidence of expenses incurred by them due to accidental injuries, all the three claimants are awarded a compensation of Rs. 10,000/ each with interest @ 7.5% per annum from the date of filing of these D.A. Reports i.e. 26.02.2013 till its realization.
96. However, in the case of all these three claimants, the submissions of counsel for the Insurance Company are accepted that since they were unauthorized persons traveling in the offending vehicle and were not in the cabin meant for traveling in a vehicle, the Insurance Company will have no liability to pay the compensation to these claimants and the compensation would be payable by the owner of the offending vehicle and not by the Insurance Company which is exonerated in these three D.A. Reports.
97. Let compensation of these three claimants be also MACT No. 441/12 Smt. Sarita & Ors. v. Sh. Deep Chand Saini & Ors. Page 34 of 35 DAR No. 87/DAR/13 Sh. Madhu Ram v. Sh. Deep Chand Saini & Ors. Page 34 of 35 DAR No. 89/DAR/13 Sh. Gulab Dass v. Sh. Deep Chand Saini & Ors. Page 34 of 35 DAR No. 90/DAR/13 Sh. Mahesh Mahto v. Deep Chand Saini & Ors. Page 34 of 35 deposited by the owner of the offending vehicle within 30 days from today.
98. Copy of order be given dasti to all the parties.
99. List for compliance of these directions by insurance company and owner of the vehicle on 25.02.2014. Thereafter, the file be consigned to Record Room.
Announced in the Open Court.
On the 20th day of November, 2013 (ARUN BHARDWAJ) PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNALII DWARKA COURTS, NEW DELHI.
MACT No. 441/12 Smt. Sarita & Ors. v. Sh. Deep Chand Saini & Ors. Page 35 of 35 DAR No. 87/DAR/13 Sh. Madhu Ram v. Sh. Deep Chand Saini & Ors. Page 35 of 35 DAR No. 89/DAR/13 Sh. Gulab Dass v. Sh. Deep Chand Saini & Ors. Page 35 of 35 DAR No. 90/DAR/13 Sh. Mahesh Mahto v. Deep Chand Saini & Ors. Page 35 of 35