Delhi District Court
Smt. Rani Devi (Widow Of Deceased) vs Sh. Ganga Saran on 25 January, 2019
MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019
IN THE COURT OF SHRI VIDYA PRAKASH, PRESIDING OFFICER,
MOTOR ACCIDENT CLAIMS TRIBUNAL, ROHINI COURTS, DELHI
MAC Petition No. 4885/16 (Old MACP No. 227/12)
1. Smt. Rani Devi (Widow of deceased)
Widow of Late Sh. Suresh Kumar
2. Ms. Arti(Daughter of deceased)
D/o Late Sh. Suresh Kumar
3. Ms. Bharti(Daughter of deceased)
D/o Late Sh. Suresh Kumar
4. Smt. Resalo Devi (Mother of deceased)
Widow of Late Sh. Rajroop
(Deleted from array of parties vide order dated 23.08.18)
All R/o Village Bakner,
Narela, Delhi
.......Petitioners
VERSUS
1. Sh. Ganga Saran,
S/o Sh. Chhatri Singh,
R/o H.No. 83,
Bhagwatpura,
District Meerut,
U.P.
(Driver of Car no. DL3CAL0919)
2. M/s. Hyundai Motor India Pvt. Ltd.
A30, Mohan Cooperative Industrial Estate,
Main Mathura,
Delhi.
Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 1 of 92
MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019
2(B). M/s. Auto Credits A Unit of Mafcons India Ltd.
Through its Director:
A24, Preet Vihar,
Main Vikas Nagar,
Delhi
(Purchaser of Car no. DL3CAL0919)
2(C) Sh. Manish Parashar,
S/o Sh. Bhagwan Dass Parashar,
R/o H.No. 305, Bhagwan Bhawan,
B.C. Bazar,
Meerut Cantt,
District Meerut,
UP
(Possessory owner of Car no. DL3CAL0919)
3. M/s. Bharti General Insurance Co. Ltd.
A8, 2nd Floor,
Bigjos Tower,
Netaji Subhash Place,
Delhi (Insurer of Car no. DL3CAL0919))
........Respondents
AND
MAC Petition No. 4348/16 (Old MACP No. 229/12)
1. Sh. Vinod(Husband of deceased)
S/o Late Sh. Shyam Lal,
2. Ms. Payal (Daughter of deceased)
D/o Sh. Vinod
3. Master Aryan (Son of deceased)
S/o Sh. Vinod
Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 2 of 92
MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019
4. Master Sonu (Son of deceased)
S/o Sh. Vinod
(Petitioners no. 2 to 4 being minor represented through their
father/natural guardian)
All R/o Pana Paposhiyan,
Narela, Delhi
.......Petitioners
VERSUS
1. Sh. Ganga Saran,
S/o Sh. Chhatri Singh,
R/o H.No. 83,
Bhagwatpura,
District Meerut,
U.P.
(Driver of Car no. DL3CAL0919)
2. M/s. Hyundai Motor India Pvt. Ltd.
A30, Mohan Cooperative Industrial Estate,
Main Mathura,
Delhi.
2(B). M/s. Auto Credits A Unit of Mafcons India Ltd.
Through its Director:
A24, Preet Vihar,
Main Vikas Nagar,
Delhi
(Purchaser of Car no. DL3CAL0919)
2(C) Sh. Manish Parashar,
S/o Sh. Bhagwan Dass Parashar,
R/o H.No. 305, Bhagwan Bhawan,
Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 3 of 92
MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019
B.C. Bazar,
Meerut Cantt,
District Meerut,
UP
(Possessory owner of Car no. DL3CAL0919)
3. M/s. Bharti General Insurance Co. Ltd.
A8, 2nd Floor,
Bigjos Tower,
Netaji Subhash Place,
Delhi (Insurer of Car no. DL3CAL0919))
........Respondents
AND
MAC Petition No. 4806/16 (Old MACP No. 224/12)
Sh. Munesh Kumar,
S/o Sh. Mahinder,
R/o Village Barauli,
PS. Rai,
District Sonepat,
Haryana.
.......Petitioner
VERSUS
1. Sh. Ganga Saran,
S/o Sh. Chhatri Singh,
R/o H.No. 83,
Bhagwatpura,
District Meerut,
U.P.
(Driver of Car no. DL3CAL0919)
Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 4 of 92
MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019
2. M/s. Hyundai Motor India Pvt. Ltd.
A30, Mohan Cooperative Industrial Estate,
Main Mathura,
Delhi.
2(B). M/s. Auto Credits A Unit of Mafcons India Ltd.
Through its Director:
A24, Preet Vihar,
Main Vikas Nagar,
Delhi
(Purchaser of Car no. DL3CAL0919)
2(C) Sh. Manish Parashar,
S/o Sh. Bhagwan Dass Parashar,
R/o H.No. 305, Bhagwan Bhawan,
B.C. Bazar,
Meerut Cantt,
District Meerut,
UP
(Possessory owner of Car no. DL3CAL0919)
3. M/s. Bharti General Insurance Co. Ltd.
A8, 2nd Floor,
Bigjos Tower,
Netaji Subhash Place,
Delhi (Insurer of Car no. DL3CAL0919))
........Respondents
AND
MAC Petition No. 4886/16 (Old MACP No. 226/12)
Sh. Ashok,
S/o Sh. Rohtas,
Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 5 of 92
MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019
R/o Village Bakner,
Narela,
Haryana.
.......Petitioner
VERSUS
1. Sh. Ganga Saran,
S/o Sh. Chhatri Singh,
R/o H.No. 83,
Bhagwatpura,
District Meerut,
U.P.
(Driver of Car no. DL3CAL0919)
2. M/s. Hyundai Motor India Pvt. Ltd.
A30, Mohan Cooperative Industrial Estate,
Main Mathura,
Delhi.
2(B). M/s. Auto Credits A Unit of Mafcons India Ltd.
Through its Director:
A24, Preet Vihar,
Main Vikas Nagar,
Delhi
(Purchaser of Car no. DL3CAL0919)
2(C) Sh. Manish Parashar,
S/o Sh. Bhagwan Dass Parashar,
R/o H.No. 305, Bhagwan Bhawan,
B.C. Bazar,
Meerut Cantt,
District Meerut,
UP
(Possessory owner of Car no. DL3CAL0919)
Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 6 of 92
MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019
3. M/s. Bharti General Insurance Co. Ltd.
A8, 2nd Floor,
Bigjos Tower,
Netaji Subhash Place,
Delhi (Insurer of Car no. DL3CAL0919))
........Respondents
AND
MAC Petition No. 4889/16 (Old MACP No. 225/12)
Sh.Vijay,
S/o Sh. Amarpal,
R/o Village Barauli,
PS. Rai,
District Sonepat,
Haryana.
.......Petitioner
VERSUS
1. Sh. Ganga Saran,
S/o Sh. Chhatri Singh,
R/o H.No. 83,
Bhagwatpura,
District Meerut,
U.P.
(Driver of Car no. DL3CAL0919)
2. M/s. Hyundai Motor India Pvt. Ltd.
A30, Mohan Cooperative Industrial Estate,
Main Mathura,
Delhi.
Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 7 of 92
MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019
2(B). M/s. Auto Credits A Unit of Mafcons India Ltd.
Through its Director:
A24, Preet Vihar,
Main Vikas Nagar,
Delhi
(Purchaser of Car no. DL3CAL0919)
2(C) Sh. Manish Parashar,
S/o Sh. Bhagwan Dass Parashar,
R/o H.No. 305, Bhagwan Bhawan,
B.C. Bazar,
Meerut Cantt,
District Meerut,
UP
(Possessory owner of Car no. DL3CAL0919)
3. M/s. Bharti General Insurance Co. Ltd.
A8, 2nd Floor,
Bigjos Tower,
Netaji Subhash Place,
Delhi (Insurer of Car no. DL3CAL0919))
........Respondents
APPEARENCES:
Sh. Gaurav Sood, adv for petitioners.
Proceedings abated qua respondent no.1 vide order dated
02.03.17.
Sh. Manish Shrivastava, Adv for respondent no. 2.
None for respondent no. 2(A).
Sh. Sanjeev Nirwani, Adv for respondent no. 2(B).
Sh. Om Prakash Saini, Adv for respondent no. 2(C).
Sh. V. K. Gupta, adv for respondent no. 3.
Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 8 of 92
MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019
Petitions under Section 166 and 140 of M.V. Act, 1988
for grant of compensation
AWARD:
1. Vide this common order, I shall dispose of all these five
petitions with regard to fatal injuries sustained by Suresh Kumar (MACP No.
4885/16) & by Smt. Pramila(MACP No. 4348/16) and injuries sustained by
Munesh Kumar (MACP No. 4806/16), Ashok (MACP No. 4886/16) and by
Vijay (MACP No. 4889/16) in Motor Vehicular Accident which occurred on
25.04.2012 at about 7:00 am at Mandhir Paldi Kalan, PS. Rai, District
Sonepat, Haryana, involving Car bearing registration no. DL3CAL0919
(alleged offending vehicle) being driven in rash and negligent manner by its
driver (R1 herein).
2. All these claim petitions were consolidated for the purpose of
recording evidence vide order dated 20.01.2016 passed by Ld.
Predecessor and MACP No. 4885/16 titled as " Rani Devi & Ors. Vs.
Ganga Saran & Ors" was treated as the leading case. Accordingly, the
evidence was led on behalf of both the sides in the leading case for the
purpose of all these matters.
FACTS OF THE CASES
3. According to the claim petitions filed in all these cases, on 25.04.12, Suresh Kumar (deceased in MACP No. 4885/16) was driving his Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 9 of 92 MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019 motorcycle bearing registration no. HR42A8288 and he alongwith Sh. Ashok Kumar(injured in MACP No. 4886/16) and Sh. Krishan, were coming towards Bhalgarh. Smt. Pramilla (deceased in MACP No. 4348/16) was sitting on another motorcycle bearing no. HR10Q7274, which was being driven by Sh. Vijay Kumar(injured in MACP No. 4889/16). Sh. Munesh Kumar (injured in MACP No. 4806/16) was sitting in TSR bearing No. HR69A8312 and said TSR was also coming to Bhorgarh from Barauli Village. At about 7:00 am, when the aforesaid motorcycle no. HR42A8288 reached in front of Temple Paldi Kalan, one Car bearing registration no. DL3CAL0919 which was being driven by respondent no. 1 at very high speed and in rash and negligent manner, came from opposite direction and hit against the said motorcycle no. HR42A8288. Thereafter, said car hit another motorcycle bearing no. HR10Q7274, then hit against TSR and then it also hit against one Alto Car. As a result thereof, all the occupants of aforesaid vehicles sustained injuries in the accident in question. They all except Smt. Pramilla were removed to Government Hospital, Sonepat, Haryana. Smt. Pramilla was referred to PGIMS Hospital, Rohtak, Haryana. Postmortem on the body of Suresh Kumar was conducted in government hospital, Haryana and postmortem on the body of Smt. Pramilla was condued in PGIMS Hospital, Rohtak, Haryana. FIR No. 116/12 u/s. 279/337/304A IPC was registered at PS. Rai with regard to the said accident.
Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 10 of 92MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019
4. It is averred in MACP No. 4885/16 that Suresh Kumar (deceased) was aged about 40 years old; he was working as Constable with CBI and was getting monthly salary of Rs. 29,000/(approx) at the time of accident in question. The petitioners have claimed compensation to the tune of Rs. 80,00,000/ (under pecuniary as well as non pecuniary heads) against the respondents.
5. It is averred in MACP No. 4348/16 that Pramila (deceased) was aged about 30 years old; she was doing the work of stitching and knitting and was earning Rs. 10,000/ per month at the time of accident in question. The petitioners have claimed compensation to the tune of Rs. 30,00,000/ (under pecuniary as well as non pecuniary heads) against the respondents.
6. It is averred in MACP No. 4806/16 that the petitioner/injured Munesh Kumar was aged about 25 years old; he was doing private job and was getting monthly salary of Rs. 10,000/ at the time of accident in question. He has claimed compensation to the tune of Rs. 20,00,000/ (under pecuniary as well as non pecuniary heads) against the respondents.
7. It is averred in MACP No. 4886/16 that the petitioner/injured Sh. Ashok was aged about 32 years; he was working as Constable in Haryana Police and was getting monthly salary of Rs. 18,500/ at the time Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 11 of 92 MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019 of accident in question. He has claimed compensation to the tune of Rs. 30,00,000/ (under pecuniary as well as non pecuniary heads) against the respondents.
8. It is averred in MACP No. 4889/16 that the petitioner/injured Sh. Vijay was aged about 20 years; he was a student and was also taking tuition classes and was earning Rs. 10,000/ per month at the time of accident in question. He has claimed compensation to the tune of Rs. 20,00,000/ (under pecuniary as well as non pecuniary heads) against the respondents.
9. Respondent no. 1 i.e. driver has filed separate but identical WS in all the petitions, wherein he has raised preliminary objections that the alleged accident never took place with his vehicle and the claimants have concealed the material facts from the Court and they have no locus standi to file the claim petitions. In the alternative, he has claimed that the aforesaid car was insured with respondent no. 3 during the period in question and same was registered in the name of respondent no. 2 at the time of alleged accident. On merits, he has simply denied the averments made in the petitions. He has claimed that he was driving the aforesaid car at moderate speed and he has been falsely implicated in the case. Based on these averments, he has prayed for dismissal of the petitions.
Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 12 of 92MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019
10. Respondent no. 2 i.e. registered owner has filed separate but identical WS in all the petitions, wherein it has raised preliminary objections that vehicle no. DL3CAL0919 alongwith three other cars, had been sold to M/s. Himgiri Cars Pvt. Ltd. It has further claimed that the aforesaid car was sold for consideration amount of Rs. 1,75,000/ and physical possession thereof was handed over to M/s. Himgiri Cars Pvt. Ltd. vide delivery receipt dated 08.12.2011 followed by retail invoice dated 15.12.2011 and all the original documents pertaining to said car were also handed over to the said company. Hence, M/s. Himgiri Cars Pvt. Ltd. became owner of the said vehicle for all purposes. It is further claimed that the said company has undertaken in delivery receipt that it shall be fully responsible qua the said vehicle after taking its delivery and thus, no liability can be fastened against it for the accident in question. It has further claimed that signed copy of Form Nos. 29 and 30 were handed over to M/s. Himgiri Cars Pvt. Ltd. and they had represented that said documents would be filed in the office of concerned RTO for change of ownership of said vehicle in their record. It has further claimed that the aforesaid car was insured with respondent no. 3 during the period in question. On merits, it has reiterated the aforesaid facts while simply denying the averments made in the petitions and has prayed for dismissal thereof.
11. Before proceedings further, it may be noted here that an application under Order 1 Rule 10 r/w Section 151 CPC for impleading M/s Himgiri Cars Pvt. Ltd. as respondent, was moved by respondent no. 2 and Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 13 of 92 MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019 similar application for impleadment of M/s Auto Credits (A unit of Mafcons India Ltd.) and Sh. Manish Prashar was moved on behalf of proposed respondent i.e. M/s Himgiri Cars Pvt. Ltd. on the ground that the aforesaid car had been further sold to Auto Credits, which further sold the same to Sh. Manish Prashar. Both the said applications came up for hearing before my Ld. Predecessor on 22.11.2014. The application for impleding M/s Himgiri Cars Pvt. Ltd. was dismissed as withdrawn, whereas the other application was allowed and said two persons were impleaded as respondent no. 2 (B) and respondent no. 2(C) respectively as reflected from the proceedings dated 22.11.2014.
12. Respondent no. 2(B) has filed separate but identical written statements in all the claim petitions, wherein it has raised preliminary objections that the aforesaid car was registered in the name of M/s.Hyundai Motor India Pvt. Ltd. and it had taken delivery thereof through M/s Himgiri Cars Pvt. Ltd. on 11.12.2011 and had further sold the said vehicle to Sh. Manish Prashar on 29.01.2012 against delivery receipt. It further claimed that M/s Hyundai Motors India Pvt. Ltd. never delivered relevant documents i.e. Form Nos. 29 and 30 for the purpose of transfer of said vehicle in its name. It further claimed that the said car was got insured in the name of registered owner vide cover note no.002300578342 for the period from 13.04.2011 to 12.04.2012. On merits, the averments made in the claim petitions have been simply denied.
Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 14 of 92MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019
13. Respondent no. 2(C) has filed separate but identical written statements in all the claim petitions, wherein he has simply denied the averments made in the claim petition. He has claimed that he has no concern with the aforesaid car in any manner and he has been unnecessarily impleaded as a party in the claim petitions, which are liable to be dismissed.
14. Respondent no. 3/insurance company has filed separate but identical written statements in all the claim petitions raising statutory defence as provided in Section 149(2) M.V. Act. However, it has admitted that the aforesaid Car was insured with it, vide policy no. IO886304 having validity from 24.04.12 to 23.03.13. On merits, it has denied the averments made in the claim petitions and has prayed for their dismissal.
15. From pleading of the parties, the following issues were framed in MACP No. 4885/16 by Ld. Predecessor vide order dated 02.11.2012 :
1) Whether the deceased in the present case expired due to the road accident occurred on 25.04.2012 at about 7:00 pm at Mandhir Paldi Kalan, PS. Rai, District Sonepat, Haryana due to rash and negligent driving of respondent no. 1 while driving the offending car make Elantra GIA, bearing no. DL3CAL0919? OPP.
2) Whether the petitioners are entitled to any compensation if so, from which of the respondents? OPP.
Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 15 of 92
MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019
3) Relief.
16. From pleading of the parties, the following issues were framed in MACP No. 4348/16 by Ld. Predecessor vide order dated 02.11.2012:
1) Whether the deceased in the present case expired due to the road accident occurred on 25.04.2012 at about 7.00 PM at Mandhir Paldi Kalan, PS Rai, Distt. Sonepat, Haryana due to the rash and negligent driving of respondent No. 1 while driving the offending car make Elantra GIA, bearing No. 3CAL 0919. ? OPP.
2) Whether the petitioner is entitled to any compensation, if so, from which of the respondents ?
3) Relief.
17. From pleading of the parties, the following issues were framed in MACP No. 4806/16 by Ld. Predecessor vide order dated 02.11.2012 :
1) Whether the deceased in the present case expired due to the road accident occurred on 25.04.2012 at about 7:00 pm at Mandhir Paldi Kalan, PS. Rai, District Sonepat, Haryana due to rash and negligent driving of respondent no. 1 while driving the offending car make Elantra GIA, bearing no. DL3CAL0919? OPP.
2) Whether the petitioners are entitled to any compensation if so, from which of the respondents? OPP.
Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 16 of 92
MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019
3) Relief.
18. From pleading of the parties, the following issues were framed in MACP No. 4886/16 by Ld. Predecessor vide order dated 02.11.2012 :
1) Whether the deceased in the present case expired due to the road accident occurred on 25.04.2012 at about 7.00 PM at Mandhir Paldi Kalan, PS Rai, Distt. Sonepat, Haryana, due to the rash and negligent driving of respondent No. 1 while driving the offending car make Elantra GIA, bearing No. 3CAL 0919. ? OPP.
2) Whether the petitioner is entitled to any compensation, if so, from which of the respondents ?
3) Relief.
19. From pleading of the parties, the following issues were framed in MACP No. 4889/16 by Ld. Predecessor vide order dated 02.11.2012 :
1) Whether the deceased in the present case expired due to the road accident occurred on 25.04.2012 at about 7.00 PM at Mandhir Paldi Kalan, PS Rai, Distt. Sonepat, Haryana due to the rash and negligent driving of respondent No. 1 while driving the offending car make Elantra GIA, bearing No. 3CAL 0919. ? OPP.
2) Whether the petitioner is entitled to any compensation, if so, from which of the respondents ?
Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 17 of 92MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019
3) Relief.
20. Before proceeding further, it is pertinent to mention here that inadvertently issues for fatal injuries were framed in the claim petitions bearing MACP Nos. 4806/16, 4886/16 and 4889/16. It is, therefore, necessary to reframe the issues in said three claim petitions as the claimants therein had sustained injuries in the accident in question.
21. From the pleading of the parties, the following issues are re framed in MACP No. 4806/16:
1) Whether the injured Munesh Kumar suffered injuries due to the road accident occurred on 25.04.2012 at about 7:00 pm at Mandhir Paldi Kalan, PS. Rai, District Sonepat, Haryana due to rash and negligent driving of respondent no. 1 while driving the offending car make Elantra GIA, bearing no. DL3CAL0919? OPP.
2) Whether the petitioner is entitled to any compensation if so from which of the respondents? OPP.
3) Relief.
22. From pleading of the parties, the following issues are framed in MACP No. 4886/16:
1) Whether the injured Ashok suffered injuries due to the road accident occurred on 25.04.2012 at about 7:00 pm at Mandhir Paldi Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 18 of 92 MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019 Kalan, PS. Rai, District Sonepat, Haryana due to rash and negligent driving of respondent no. 1 while driving the offending car make Elantra GIA, bearing no. DL3CAL0919? OPP.
2) Whether the petitioner is entitled to any compensation if so from which of the respondents? OPP.
3) Relief.
23. From pleading of the parties, the following issues are framed in MACP No. 4889/16:
1) Whether the injured Vijay suffered injuries due to the road accident occurred on 25.04.2012 at about 7:00 pm at Mandhir Paldi Kalan, PS. Rai, District Sonepat, Haryana due to rash and negligent driving of respondent no. 1 while driving the offending car make Elantra GIA, bearing no. DL3CAL0919? OPP.
2) Whether the petitioner is entitled to any compensation if so from which of the respondents? OPP.
3) Relief.
24. In order to establish their claim, the petitioners have examined thirteen witnesses i.e. PW1 Sh. Mohan Attri, Assistant Criminal Ahlmad in the court of Ld. CJM, Sonepat, Haryana, PW1(Sic) Sh. Sunil Basista, LDC, Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 19 of 92 MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019 Central Bureau of Investigation, HO, CGO Complex, Delhi, PW2 Sh. Jagtar Singh, Crime Assistant, Central Bureau of Investigation, HO, CGO Complex, Delhi, PW3 Sh. Nand Gopal, MLO, Transport Department, South Zone - 06, Delhi, PW4 Smt. Rani Devi (Widow of deceased Suresh Kumar), PW5 Sh. Vinod(husband of deceased in MACP No. 4348/16), PW6 Sh. Munesh Kumar (injured in MACP No. 4806/16), PW7 Sh. Vijay(Injured in MACP No. 4889/16), PW8 Sh. Ashok(Injured in MACP No. 4886/16), PW9 HC Mahesh Kumar, Haryana Police, PW10 Dr. S.P. Sharma, Orthopedic Surgeon, Civil Hospital, Sonepat, Haryana, PW11 Dr. Ashutosh Gupta, Specialist Orthopedic, SRHC Hospital, Narela, Delhi and PW12 Dr. Vinay Gupta, Orthopedic Surgeon, Saroj Hospital, Delhi. They closed PE on 24.11.16 through their counsel. On the other hand, no evidence was adduced by respondents no. 1 & 2(B). The respondent no. 2 has examined one witness i.e. R2W1 namely Sh. Sukomal Satyen and its evidence was closed vide order dated 12.10.17. The respondent no. 2(C) has also examined one witness i.e. himself as R2(C)W1 and closed his evidence on 07.12.17. Respondent no. 3/insurance company has examined two witnesses i.e. R3W1 Ms. Shreshtha, Legal Executive of Bharti Axa General Insurance Company Limited and R3W2 Sh. Naveen Jain, Business Centre Head of National Insurance Company Limited, Mawana, U.P and closed its evidence on 27.10.18 through its counsel.
25. I have already heard the arguments advanced by Ld. Counsels for the parties. I have also perused the record as well as the written Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 20 of 92 MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019 arguments filed on record. Both the sides were directed to submit their respective submissions in Form VIA/VI B vide order dated 09.01.2019 but they have not submitted the same on record till date. My findings on the issues are as under: ISSUE NO. 1 ( IN ALL THE CASES)
26. For the purpose of this issue, the testimonies of PW6, PW7 & PW 8 are relevant. In their evidence by way of affidavits(Ex. PW6/A, Ex. PW7/A & PW 8/A), they have deposed on the lines of averments made in the claim petitions to the effect that on 25.04.12, Suresh Kumar (deceased in MACP No. 4885/16) was driving his motorcycle bearing registration no. HR42A8288 and he alongwith Sh. Ashok Kumar(injured in MACP No. 4886/16) and Sh. Krishan, were coming towards Bhalgarh. Smt. Pramilla (deceased in MACP No. 4348/16) was sitting on another motorcycle bearing no. HR10Q7274, which was being driven by Sh. Vijay Kumar(injured in MACP No. 4889/16). Sh. Munesh Kumar (injured in MACP No. 4806/16) was sitting in TSR bearing No. HR69A8312 and said TSR was also coming to Bhorgarh from Barauli Village. At about 7:00 am, when motorcycle no. HR42A8288 reached in front of Temple Paldi Kalan, one Car bearing registration no. DL3CAL0919 which was being driven by respondent no. 1 at very high speed and in rash and negligent manner, came from opposite direction and hit against the aforesaid motorcycle no. HR42A8288. Thereafter, the said car hit another motorcycle bearing no.
Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 21 of 92MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019 HR10Q7274, then it hit against TSR and then it also hit against Alto Car. As a result thereof, all the occupants of aforesaid vehicles sustained injuries in the accident in question. They all except Smt. Pramilla, were removed to Government Hospital, Sonepat, Haryana. Smt. Pramilla was referred to PGIMS Hospital, Rohtak, Haryana. Postmortem on the body of Suresh Kumar was conducted in government hospital, Haryana and postmortem on the body of Smt. Pramilla was condued in PGIMS Hospital, Rohtak, Haryana. FIR No. 116/12 u/s. 279/337/304A IPC was registered at PS. Rai with regard to the said accident.
27. PW6 Sh. Munesh has relied upon the following documents: Serial Description of Remarks No. documents
1. Medical Bills Ex. PW6/1(colly)
2. Certified copy of his MLC Ex.PW6/2
3. Copy of his voter I Card Ex.PW6/3
28. During his crossexamination on behalf respondent no. 2, he deposed that the speed of TSR in which he was travelling, was about 2025 Kmph. He denied the suggestion that TSR in which he was travelling, was being driven at fast speed or in rash and negligent manner. He also denied the suggestion that there was no rashness and negligence on the part of driver of the car. There were 45 persons sitting in the TSR. He denied the suggestion that there were 10 persons travelling in the TSR and for this reason, the accident took place.
Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 22 of 92MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019
29. During his crossexamination on behalf of respondents no.1 & 3, he denied the suggestion that the accident took place due to sole rash and negligent driving of TSR No. HR69A8312. He further denied the suggestion that it was TSR which had struck with the car. At the time of accident, he was going to his village Bhadoli to Bhalgarh. He deposed that the TSR in which he was travelling, was being driven on right side of the road. The left front portion of the car, had struck against the right front portion of the TSR. He was sitting on right rear side of the TSR. There were only three passengers sitting on rear side of the TSR. The width of the road was about 30 feet. The TSR was going straight on the road. He had seen the offending car from a distance of about 15 meters before the accident took place. The road in their front, was straight upto considerable distance. All the three passengers and the driver of said TSR, had sustained injuries in the said accident. The TSR was being driven at a speed of 1520 kmph. He denied the suggestion that the accident took place due to sole rash and negligent driving of the TSR. He also deposed that it was head on collision. He volunteered that the driver of the car came from wrong side. He also denied the suggestion that the TSR was being driven on the wrong side. Respondent no. 2(B) did not crossexamine this witness despite grant of opportunity, whereas respondent no. 2(C) did not crossexamine him on this aspect .
Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 23 of 92MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019
30. PW7 Sh. Vijay has relied upon the following documents: Serial Description of Remarks No. documents
1. Medical Bills Ex. PW7/1(colly)
2. Certified copy of his MLC Ex.PW7/2 3. Discharge Card Ex.PW7/3 4. OPD Card Ex. PW7/4
5. Copy of his Aadhaar Card Ex. PW7/5
31. During his crossexamination on behalf respondent no. 1, he deposed that he was travelling from Village Bhadoli to Bhalgarh. He was driving his motorcycle on left side of the road. The front right portion of the offending car had struck against right portion of his motorcycle. He denied the suggestions that motorcycle no. HR10Q5274 had struck against car no. DL3CAL0919 or that said accident had occurred due to his own rash and negligent driving of the motorcycle no. HR10Q5274 or that there was no fault at all on the part of car driver. The driver of the offending car fled away leaving behind the car after the accident. He denied the suggestion that the said car has been falsely implicated in this case by him in collusion with Krishan and police. During his crossexamination on behalf of respondent no. 3, he deposed that at the time of accident, he was going from village Bhadoli to Bhalgarh. It was a single road. The width of the road was about 20 feet. He was going on his motorcycle straight on the road. He had seen the offending car from a considerable distance before the accident. He was driving his motorcycle on metal road. The speed of his Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 24 of 92 MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019 motorcycle was just more than 30 kmph. He denied the suggestion that the accident took place due to rash and negligent driving of his own motorcycle or that he did not take any step to avoid the accident. He also deposed that it was head on collision. During his crossexamination on behalf of respondent no. 2, he deposed that the date of accident was 25.04.12 at about 77:30 am. He further deposed that there were two persons on the motorcycle i.e. he himself and his chachi(aunty). He denied the suggestion that he was not wearing the helmet. He admitted that his chachi was not wearing the helmet. He was having learner's licence. He had given the slip of his learning licence to his counsel but it was not placed on the record. He was thrown at some distance due to impact of the accident and his chachi had fallen down near the motorcycle. He came back to the spot after 1015 minutes of the accident. He was the first person who was hit by the offending car. He admitted that he had not seen the accident between the other vehicles, but all the victims were taken to the hospital alongwith them. He further deposed that no other vehicle was running in front of his motorcycle. There were two cars and one scooter coming behind his vehicle but he could not disclose make of said vehicles. He denied the suggestion that the aforesaid car did not hit his motorcycle or that he had hit the said car. He also denied the suggestion that accident occurred due to his fault. He has not been crossexamined at all on behalf of the respondent no.2(B), whereas respondent no. 2(C) did not crossexamine this witness on the aspect of accident being caused due to rash and negligent driving of the aforesaid car by respondent no. 1.
Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 25 of 92MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019
32. PW8 Sh. Ashok has relied upon the following documents: Serial Description of Remarks No. documents 1. Copy of his DL Ex. PW8/1
2. Copy of his service I card Ex.PW8/2 of Haryana police
3. His disability certificate Ex.PW8/3 4. His pay slip Ex. PW8/4
5. His medical bills Ex. PW8/5 (Colly)
6. His discharge summary Ex.PW8/6
7. His medical treatment Ex.PW8/7 to record and insurance Ex.PW8/9 cover notes
33. During his crossexamination on behalf respondent no. 3, he deposed that he was going to Bahalgarh at the time of accident. The width of the road on which accident took place, was about 20 feet and it was a single road. He was sitting as pillion rider on motorcycle which was going straight on the road and was being driven on the left side of the road. He had seen the offending car coming from a distance of 910 feet before the accident. The motorcycle was being driven on metal road and its speed was about 2030 km ph at the time of accident. He also deposed that it was had on collision. He denied the suggestion that accident took place due to rash and negligent driving of motorcycle on which he was sitting, as its driver did not take any steps to avoid the accident.
Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 26 of 92MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019
34. During his crossexamination on behalf respondent no. 1, he deposed that his accident did not occur due to negligence of car no. DL 3CAL 0919. The motorcycle was being driven by one Mr. Suresh Kumar (deceased) and he was riding as pillion rider on the said motorcycle. He denied that the motorcycle on which he was travelling, was being driven at very high speed or that the said accident occurred due to rash and negligent driving of Suresh Kumar. He volunteered that their motorcycle was hit by above mentioned car from the wrong side. He further deposed that at the time of accident, there was low traffic in front of their motorcycle and the offending car was coming from the front. His statement was recorded by the police on the same day of accident i.e. E on 25.04.2012. After the accident, the driver of the offending car no. DL 3CAL 0919 had fled away from the spot of the accident while leaving the car there itself. During his crossexamination on behalf respondent no. 2, he deposed that at the time of accident, he was traveling as a pillion rider on the motorcycle. He denied that the motorcycle on which he was traveling was being driven at fast speed or that the accident took place due to their fault.
35. It is evident from the testimonies of PW6, PW7 & PW 8 that the respondents could not impeach their testimonies through litmus test of crossexamination and said witnesses are found to have successfully withstood the test of crossexamination. Even otherwise, the testimonies of all these witnesses inspire confidence as they themselves are also shown Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 27 of 92 MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019 to have sustained injuries due to the accident. Moreover, FIR No. 124/12(supra)(which is part of criminal case record Ex. PW4/9(colly) would show that same was registered on statement of the complainant Sh. Krishan Chander who has disclosed therein the same sequence of facts leading to the accident in question, as deposed by aforesaid three witnesses during the course of inquiry. Apart from this, the respondents have not led any evidence in rebuttal on the aspect of accident in question being caused by respondent no. 1 while driving car bearing registration no. DL3CAL0919 in rash and negligent manner. Hence, there is no reason to disbelieve their uncontroverted testimonies made on oath.
36. It is pertinent to note that the respondent no.1/driver of aforesaid car was the other material witness to throw light by testifying as to how and under what circumstances, the accident had taken place. However, he has preferred not to enter into the witness box. Thus, an adverse inference is liable to be drawn against him to the effect that the accident in question occurred due to rash and negligent driving of Car bearing no.DL3CAL0919 by him.
37. Moreover, it is an undisputed fact that FIR no. 124/12 u/s 279/337/304A IPC was registered at PS Rai, Sonipat with regard to accident in question. Copy of said FIR(which is part of criminal case record Ex. PW4/9 colly), would show that said FIR was registered on 25.04.2012 i.e. on the date of accident itself. Thus, there is no possibility of false Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 28 of 92 MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019 implication of respondent no. 1 and / or false involvement of Car bearing registration No. DL3CAL0919 at the instance of the petitioners.
38. Not only this, the respondent no. 1 namely Ganga Saran (accused in State case) has been charge sheeted (which is also part of Ex. PW4/9(colly) for offences punishable U/s 279/337/304A/338 IPC 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 offending vehicle bearing no. DL3CAL 0919 by him. Same would also point out towards rash and negligent driving of car bearing no. DL3CAL0919 by respondent no. 1.
39. Not only this, postmortem was got conducted on the body of deceased Suresh Kumar at General Hospital, Sonipat. Copy of said PM Report (Ex. PW4/1) would show that cause of death of Suresh Kumar is opined due to shock and hammerhage on account of injuries described therein. Said injuries were antemortem and were sufficient to cause his death. The injuries as mentioned in the relevant column of external injuries of the report, are also consistent with the injuries which are sustained in road traffic accident. Likewise, copy of postmortem report (Mark A) in respect of deceased Pramila conducted at PGIIMS Rohtak, is also on record. Same would show that her cause of death is opined due to injuries described therein and their complications, caused by hard blunt force/impact. The injuries as mentioned in the relevant column of external Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 29 of 92 MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019 injuries of the report, are also consistent with the injuries which are sustained in road traffic accident. Again, there is no challenge to the aforesaid documents from the side of respondents including insurance company.
40. Further, copy of mechanical inspection report dated 28.04.2012 (which is part of criminal record Ex. PW4/9 colly) of car no. DL3CAL0919, would show fresh damages i.e. its front side bumper, show jaali, headlight, indicator, side mirror and front mirror were found broken; its bonnet, mudguard and front portion were found bended; its right front tyre was found burst and collar of rim was found broken & its AC condensor, radiator and jaali were found bended. Likewise, copy of mechanical inspection report dated 28.04.2012 (which is also part of criminal record Ex. PW4/9 colly) of TSR no. HR698312, would show fresh damages i.e. its front wind screen glass found broken and its front mudguard was also found damaged. Likewise, copy of mechanical inspection report dated 28.04.2012 (which is also part of criminal record Ex. PW4/9 colly) of motorcycle no. HR 10Q5274, would show fresh damages i.e. its front head light, visor, both indicators, front mudguard, rim and both shockers were found broken; frame of its engine was found bended; its both side handles were found bended; its right side seat cover, tool box and rear foot rest were found broken and its petrol tank was found bended. Likewise, copy of mechanical inspection report dated 28.04.2012 (which is also part of criminal record Ex. PW4/9 colly) of motorcycle no. HR42A8288, would show fresh damages Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 30 of 92 MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019 i.e. its head light and visor were found broken and its right side handle was found bended; its right side leg guard was bended and its silencer was found scratched and its front foot rest was found broken & its rear mudguard and brake lever were also found broken. Said documents have not been disputed by the respondents and corroborate the ocular testimonies of PW6 to PW8 to the aforesaid extent. Moreover, the offending car no. DL3CAL0919 is shown to have been seized from the place of accident. This fact gets strengthened from the copy of seizure memo dated 25.04.2012(date of accident also being 25.04.2012)(which is also part of criminal case record Ex. PW4/9 colly).
41. 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 the basis of pre ponderence of probabilities that Suresh Kumar and Parmila had sustained fatal injuries, whereas petitioners namely Munesh Kumar, Vijay and Ashok had sustained injuries in the road accident which took place on 25.04.2012 at about 7:00 pm at Mandhir Paldi Kalan, PS. Rai, District Sonepat, Haryana, due to rash and negligent driving on the part of driver of car bearing no. DL3CAL0919. Thus, this issue is decided in favour of petitioners and against the respondents in all these claim petitions.
ISSUE NO.2
42. Section 168 of the Act enjoins the Claims Tribunal to hold an inquiry into the claim to make an award determining the amount of Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 31 of 92 MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019 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.
Compensation in MACP No. 4885/16(Deceased Suresh Kumar) LOSS OF DEPENDENCY
43. As already stated above, the claimants/petitioners are the widow, children and mother of deceased. PW4 Smt. Rani Devi(widow of deceased) has deposed in her evidence by way of affidavit(Ex. PW4/A) that deceased Suresh Kumar was employed as Constable with Central Bureau of Investigation, CGO Complex, Lodhi Road, Delhi and was drawing monthly salary of Rs. 27,810/ at the time of accident. She further deposed that apart from her, deceased has left behind her minor daughters i.e. petitioners no.2 and 3 and his mother petitioner no. 4 as his legal heirs.
She has relied upon the following documents:
Sr. No. Description of documents Remarks
1. Postmortem Report Ex PW4/1(colly)
2. Copy of pay slip for the month Ex. PW4/2
of February 2012
3. Copy of pay slip for the month Ex. PW4/3
of March 2012
4. Copy of her PAN Card Ex. PW4/4
5. Copy of Ration card Ex. PW4/5
6. Copy of office identity card of Ex. PW4/6
Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 32 of 92
MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019
deceased
7. School certificate of petitioner Ex. PW4/7
no. 3
8. School certificate of petitioner Ex. PW4/8
no.2
9. Certified copies of criminal Ex. PW4/9(colly)
case record
44. During her cross examination on behalf of insurance company, she deposed that the date of birth of her husband is 14.05.1972. She further stated that her mother in law is residing with her and two elder brothers of deceased are residing separately with their own family. She further stated that she had applied for job on compassionate ground in the department of her husband but till date she had not got the same. She further stated that her children are studying. She denied the suggestion that deceased was not earning Rs.27,810/ per month and the petitioners were not financially dependent upon the deceased. In the crossexamination on behalf of respondent no.2, she stated that she had got an amount of Rs.7 lacs from the department of her husband after his death. She denied that she is working and is having any source of income. Respondent no. 1 did not cross examine this witness at all.
45. PW1 is the Official from the office of employer of deceased. He produced the attested salary slips of deceased Suesh Kumar from February 2012 to April 2012 and exhibited the same as Ex. PW1/1. He also Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 33 of 92 MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019 produced certified copy of the order dated 22.04.1994, as per which the deceased was getting 13 month's salary in one year. He exhibited the same as Ex. PW1/2 and attested copy of pay bill register showing 13 months salary of deceased as Ex. PW1/3. He stated that 13 month's salary remains upto the age of retirement, upto the rank of Inspector. During his cross examination on behalf of respondent no. 2,he deposed that they deduct tax as per rule in the end of the financial year. He further stated that he can not say whether any family member of the deceased, has been given employment by CBI on compassionate grounds. He was unable to tell about the amount of employment insurance scheme given to the family of deceased. He further deposed during his crossexamination on behalf of insurance company that deceased was working as Constable and said post comes in the category of executives. He further stated that thirteen month's salary was paid by their department in case the employee performs extra duty for 2 and a half days in a month on Saturdays/Sundays or Holidays. He stated that deceased had joined the services in their department on 19.10.2005. He also produced copy of payment register for the period November 2005 to March 2011 and exhibited the same as Ex. PW1/4 to Ex. PW1/9.
46. During the crossexamination on behalf of respodnent no. 2, he stated that grant of employment to the family of deceased on compassionate ground, is taken care of by Head Quarter. He admitted that an employee of CBI is duly insured. He stated that at the time of death of Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 34 of 92 MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019 any employee, the family of deceased gets Rs.30,000/ under group insurance scheme. He further deposed that deceased was employed in CBI since 2005 and he(PW1) is employed in the accounts section since 2006 and deceased was personally known to him. He further deposed that extra salary of one month was paid to deceased in any month after finishing of calender year and extra pay included basic pay, grade pay and DA only. No leave pay is to be paid in extra pay. After going through the document Ex. PW1/5, he admitted that in document Ex. PW1/4, the extra payment was not equal to the regular pay. He denied the suggestion that the documents Ex. PW1/4 to Ex. PW1/9 were forged and fabricated.
47. PW2 Sh. Jagtar Singh is also the Official from the office of employer of deceased Suresh Kumar. He produced the relevant service particulars and appointment record of deceased. He was not cross examined on behalf of respondents as he had only produced the documents.
48. After referring to the testimonies of PW1 and PW2 and the documents produced by them, counsel for petitioners vehemently argued that last drawn monthly salary of deceased should be taken as Rs. 27,810/ in order to calculate the loss of dependency. He further argued that since deceased was having permanent job and he was aged less than 40 years at the time of accident, future prospects @ 50% should also be awarded in favour of the petitioners.
Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 35 of 92MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019
49. On the other hand, counsel for the insurance company argued that there is no concrete evidence led by petitioners to establish monthly income of deceased. Thus, loss of dependency should be calculated on the basis of notional income as per Minimum Wages Act applicable during the relevant period. Counsel for insurance co further argued that washing allowance and metro allowance should also be deducted from the monthly salary of deceased, in order to compute the loss of dependency under this head and TDS should be deducted.
50. Having considered the rival submissions made on behalf of both the sides in the light of material available on record, I find substance in the contention raised on behalf of petitioners that monthly salary of deceased should be considered as Rs. 27,810/ should be taken into consideration in order to calculate the loss of dependency. It is duly established on record from the testimony of PW1 and PW2 as well as from the relevant documents brought on record by said two witnesses that deceased Suresh Kumar was working as Constable in CBI at the time of accident and also that he was getting salary for 13 months in one year on account of extra duties performed by Constables in CBI as per relevant circular/order dated 22.04.1994(Ex. PW1/2).
51. It may be noted that in the service records of deceased ( which is part of Ex PW2/1 colly), the date of birth of deceased is mentioned as 14.05.1972. The date of accident is 25.04.2012. Hence, the age of Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 36 of 92 MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019 deceased was about 39 years, 11 months and 22 days at the time of accident. For the reasons noted above, deceased is shown to be Govt employee and his age being less than 40 years, it is held that the petitioners shall be entitled to future prospects @ 50%. The multiplier of 15 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.
52. Considering the fact that there were four dependents at the time of accident, there has to be deduction of 1/4th as held in the case of Pranay Sethi mentioned supra. Annual income upto Rs. 2,00,000/ was exempted under Income Tax Act during F.Y. 20122013 and it was amenable to tax @ 10% above Rs. 2,00,000/ upto Rs. 5,00,000/ and further @ 20% above Rs. 5,00,000/ and upto Rs. 10,00,000/. After deducting the tax amount of Rs. 16,153/ from the annual income of deceased, his net annual income at the time of accident comes out to Rs. 3,45,377/ (Rs. 27,810/ x 13 - Rs. 16,153/). Thus, the total of loss of dependency would come out to Rs. 58,28,240/(rounded off) (Rs. 3,45,377/ X 3/4 X 150/100 X 15).
LOSS OF LOVE & AFFECTION
53. After the celebrated judgment of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors.", mentioned supra, Hon'ble Delhi Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 37 of 92 MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019 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
54. In view of celebrated judgment of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors.", mentioned Supra a sum of Rs. 40,000/ is awarded in favour of petitioner no. 1 Smt. Rani Devi(being widow of deceased) towards loss of consortium.
LOSS OF ESTATE & FUNERAL EXPENSES
55. 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 funeral expenses and loss of estate.
The total compensation is assessed as under:
1. Loss of dependency Rs. 58,28,240/
2. Loss of consortium Rs. 40,000/ Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 38 of 92 MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019
2. Loss of Estate & Funeral Rs. 30,000/ Expenses Total Rs. 58,98,240/ Rounded Off to Rs. 58,99,000/ Compensation in MACP No. 4348/16(Deceased Pramilla) LOSS OF DEPENDENCY
56. As already stated above, the claimants/petitioners are the husband and children of deceased. PW5 Sh. Vinod (husband of deceased) has deposed in his evidence by way of affidavit(Ex. PW5/A) that Smt. Pramila was 30 years of age; she was in the small scale business of knitting and stitching and was earning Rs. 10,000/ per month at the time of accident. He has relied upon the following documents: Serial Description of Remarks No. documents
1. Copy of his PAN Card Ex. PW5/1
2. Copy of his voter I Card Ex.PW5/2 3. Copy of residence Ex.PW5/3 certificate issued by Sarpanch, Gram Panchayat Barauli, Sonipat
4. Copy of postmortem report Mark A
5. Birth certificate of Ex. PW5/4 petitioner no. 2
6. Copy of birth certificate of Ex. PW5/5 Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 39 of 92 MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019 petitioner no. 3
7. Copy of birth certificate of Ex. PW5/6 petitioner no. 4
8. Copy of MLC of deceased Ex. PW5/7
57. During his cross examination on behalf of respondent no. 1, he stated that he is not an eyewitness of the accident. He denied the suggestion that at the time of accident, his wife was not earning Rs.10,000/ per month. He denied the suggestion that he and his children were not dependent on the earnings of his wife. He further denied the suggestion that due to the said accident, no financial loss has been occurred to him and his family.
58. During his crossexamination on behalf of insurance company, he stated that he does not remember the date, month and year of birth of deceased. He further stated that deceased was younger to him by one year. He stated that he did not have any written evidence/diploma to show that deceased was qualified in knitting and stitching work. He denied the suggestion that the deceased was not gainfully employed or that she was not earning any amount on the date of accident. He stated that he is doing private work and is earning Rs.250/ per day and earning approximately Rs.50006000/ per month. He stated that he has not remarried. He also stated that he is having the voter card and ration card in the name of his wife but he has not filed the same on record. He denied the suggestion that he has intentionally and deliberately not filed the election identity card and Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 40 of 92 MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019 ration card of deceased to conceal her actual age or that deceased was more than 40 years. He further denied the suggestion that they have not suffered any financial loss due to the death of deceased.
23. In his crossexamination on behalf of respondent no. 2 he stated that his wife died in the accident while crossing the road. He stated that he was bearing the household expenses. He further deposed that apart from his children, his younger brother also resides alongwith him and was studying in 12th class.
59. Apart from the bald statement made by PW5 Sh. Vinod that deceased was earning Rs. 10,000/per month at the time of accident, no definite evidence whatsoever has been brought on record to prove her monthly income at the time of accident in question. It may be noted here that the petitioners have failed to file any document concerning her educational qualification. Thus, her loss of income has to be assessed while taking the notional income of NonMatriculate under Minimum Wages Act applicable during the period in question [Reliance placed on "Royal Sundaram Alliance Insurance Company Limited Vs. Manmeet Singh & Ors.", reported at 2012 ACJ 721 (Delhi)].
60. In the matter titled as Royal Sundaram Alliance Insurance Company Limited Vs. Manmeet Singh & Ors.", supra, it has been held by Hon'ble Delhi High Court that the services rendered by a housewife can not be counted; cooking, washing, ironing clothes and stitching clothes (in Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 41 of 92 MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019 some cases) for the husband and children, teaching and guiding children, working as a nurse whenever the husband and child/children are sick, are some of the major activities of a housewife. She has no fixed hours of work; she is always in attendance to take care of each and every need of the whole family at the cost of her personal comfort and health. The services rendered by a housewife may differ from case to case considering her qualification, financial strata and social status of the family to which she belongs.
61. The minimum wages of NonMatriculate were Rs. 7,748/ per month as on the date of accident. In the case of Manmeet Singh supra, Hon'ble Delhi High Court has held that there will be an addition of 25% in the assumed income where the age of home maker is upto 40 years and there shall not be any deduction towards her personal and living expenses. However, it has been held by Hon'ble Delhi High Court in subsequent decisions in the matters titled as Reliance General Insurance Company Limited Vs. Murgan & Ors, MAC APP No. 1177/2014, decided on 25.02.16 & Cholamandalam MS General Insurance Company Limited Vs. Rakesh & Ors., MAC APP No. 434/2016, decided on 19.07.17 that there has to be deduction even in the case of home maker towards her personal and living expenses.
62. In the present case, there is no document placed on record to show the exact age of deceased Pramila at the time of accident.
Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 42 of 92MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019 Nevertheless, her husband i.e. PW5 Sh. Vinod has deposed in his evidence by way of affidavit(Ex. PW5/A) that deceased was aged about 30 years old at the time of accident. In the crossexamination, he has denied that he has not filed election identity card and ration card of the deceased to conceal her actual age or that the deceased was more than 40 years of age. Though suggestion has been put in the crossexamination of PW5 that the deceased was above 40 years of age but respondents have not adduced evidence in rebuttal to prove that deceased was above 40 years of age. Although, in copy of MLC as well as in copy of postmortem report of deceased, her age is mentioned as 30 years but PW5 i.e. husband of deceased has deposed during his crossexamination that deceased was one year younger to him. He has filed copy of his PAN card(Ex. PW5/1), wherein his date of birth is mentioned as 06.08.1978. The date of accident is 25.04.12. That being so, his age comes out to 32 years at the time of accident. If one goes by the aforesaid testimony of PW5 that deceased was one year younger to him then age of deceased shall come out to 31 years at the time of accident. Hence, the age of deceased is accepted as 31 years as on the date of accident. Thus, the multiplier of 16 would be applicable in this case.
63. Keeping in view the fact that there were four dependents upon the deceased, 1/4th is to be deducted towards persons and living expenses of deceased. In the case of Manmeet Singh supra, Hon'ble Delhi High Court has held that there will be an addition of 25% in the assumed income Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 43 of 92 MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019 where the age of home maker is upto 40 years. Since the deceased was below 40 years of age, 25% is to be added towards future prospects Thus, the total of loss of dependency would come out to Rs. 13,94,640/ (7748X 125/100 X 3/4 X 12 X16). Hence, a sum of Rs.13,94,640/ is awarded under this head in favour of the petitioners.
LOSS OF LOVE & AFFECTION
64. After the celebrated judgment of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors.", mentioned supra, 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
65. In view of celebrated judgment of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors.", mentioned Supra a sum of Rs. 40,000/ is awarded in favour of petitioner no. 1 Sh.Vinod (being husband of deceased) towards loss of consortium.
Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 44 of 92MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019 LOSS OF ESTATE & FUNERAL EXPENSES
66. 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.
The total compensation is assessed as under:
1. Loss of dependency Rs. 13,94,640/
2. Loss of consortium Rs. 40,000/
3. Loss of Estate & Funeral Rs. 30,000/ Expenses Total Rs. 14,64,640/ Rounded Off to Rs. 14,65,000/ Compensation in MACP No. 4806/16(Injured Munesh Kumar) MEDICAL EXPENSES
67. PW1 i.e. injured himself, has deposed in his evidence by way of affidavit (Ex. PW6/A) that after the accident, he was removed to Government Hospital, Sonepat, Haryana. Thereafter, he was taken to Aneja Hospital & Bhogal Ortho Centre, Delhi, where he remained admitted from 25.04.12 to 30.04.12. He further deposed that he had spent Rs. 49,580/ on his medical treatment. He has relied upon his medical bills as Ex. PW6/1(colly). During his crossexamination on behalf of respondents Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 45 of 92 MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019 no. 1 & 3, he denied the suggestion that the medical bills filed by him on record, were forged or were procured without any prescription. He further denied the suggestion that he had not incurred any amount on various heads as stated by him in his affidavit. During his crossexamination on behalf of respondent no. 2, he denied the suggestion that the bills filed by him, were false and fabricated. He further denied the suggestion that he had not sustained grievous injury in the accident. Respondent no. 2(B) did not crossexamine this witness despite grant of opportunity, whereas respondent no. 2(C) did not crossexamine him on this aspect.
68. It is relevant to note that the injured has relied upon medical bills to the tune of Rs. 49,579/ only, which are exhibited as Ex. PW6/1 (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. They have also not led any evidence in rebuttal so as to create any doubt on the genuineness of said bills. Accordingly, a sum of Rs. 49,579/is awarded to the petitioner under this head.
LOSS OF INCOME
69. Injured namely Sh. Munesh (PW1) has categorically deposed in his evidence by way of affidavit(Ex PW6/A) that he was 25 years old; he was doing private job and was earning Rs. 10,000/ per month at the time of accident. He further deposed that he could not go to his work place for a Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 46 of 92 MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019 considerable period due to the injuries sustained by him in the accident. During his crossexamination on behalf of respondents no. 1 & 3, he deposed that he was 10th passed. He further deposed that he had not filed any certificate to show that he was 10 th passed. He denied the suggestion that he was not 10th passed. He further deposed that he had not filed any written evidence to show that he was employed or that he was earning any amount as on the date of accident. He denied the suggestion that he was not employed or that he was not earning any amount as on the date of accident. Respondent no. 2(B) did not crossexamine this witness despite grant of opportunity, whereas respondent no. 2 & 2(C) did not cross examine him on this aspect.
70. The Discharge Card (Ex. PW6/3) of Aneja Hospital & Bhogal Ortho Centre in respect of petitioner/injured Munesh, would reveal that he was got admitted in the said hospital on 25.04.12 and was discharged from said hospital on 30.04.2012. Said treatment record would also show that the injured had suffered fracture of L1 humerus and operation of ORIF for L1 humerus plating was done. Said part of his testimony has gone unchallanged and uncontroverted from the side of respondents.
71. Apart from the aforesaid documents produced by PW1 i.e. the petitioner, he has failed to file any other medical treatment record in order to show the exact period upto which he had received the medical treatment. Nevertheless, it can not be overlooked that the petitioner had suffered Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 47 of 92 MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019 fracture left humerus. Considering the nature of injuries sustained by the petitioner and in view of the treatment record brought on record, it is presumed that he would not have been able to work at all atleast for a period of four months or so.
72. During the course of arguments, counsel for injured fairly conceded that for want of any cogent evidence with regard to exact avocation or monthly income of injured/petitioner, his income has to be assessed as per Minimum Wages Act applicable in State of Haryana during the relevant period. It may be noted here that the petitioner has failed to file any document concerning his educational qualification. In these circumstances, the minimum wages of an unskilled worker under Minimum Wages Act in State of Haryana during the period in question, has to be taken into consideration. The minimum wages of an unskilled worker were Rs. 6,342.60 paise per month as on the date of accident which is 25.04.2012. For sake of convenience, the amount is being taken as Rs. 6,350/ per month. Thus, a sum of Rs. 25,400/ (Rs. 6,350/ x 4) is awarded in favour of petitioner under this head and against the respondents.
PAIN AND SUFFERING
73. Hon'ble Delhi High Court in the matter titled as " Vinod Kumar Bitoo Vs. Roshni & Ors." passed in appeal bearing no. MAC.APP 518/2010 decided on 05.07.12, has held as under: " It is difficult to measure the pain and suffering in Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 48 of 92 MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019 terms of money which is suffered by a victim on account of serious injuries caused to him in a motor vehicle accident. Since the compensation is required to be paid for pain and suffering an attempt must be made to award compensation which may have some objective relation with the pain and suffering underwent by the victim. For this purpose, the Claims Tribunal and the Courts normally consider the nature of injury; the part of the body where the injuries were sustained, surgeries, if any, underwent by the victim, confinement in the hospital and the duration of treatment".
74. Injured himself as PW1 has deposed in his evidence by way of affidavit(Ex PW1/A) that he had sustained grievous injuries. As already noted above, his treatment record (Ex. PW6/3) as available on file, would corroborate his ocular testimony which has otherwise gone unchallenged and unrebutted from the side of respondents. It can not be overlooked that he had suffered fracture left humerus. Thus, he would have undergone great physical sufferings and mental shock on account of the accident in question. Keeping in view the medical treatment record of petitioner available on record, I hereby award a sum of Rs. 50,000/ towards pain and sufferings to the petitioner.
LOSS OF GENERAL AMENITIES & ENJOYMENT OF LIFE
75. As already mentioned above, there is sufficient evidence on record to establish that the petitioner had suffered fracture left humerus. Thus, he would not have been able to enjoy general amenities of life after Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 49 of 92 MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019 the accident in question for considerable period and his quality of life has been definitely affected. In view of the nature of injuries suffered by him and his continued treatment for considerable period, I award a notional sum of Rs. 25,000/ towards loss of general amenities and enjoyment of life to the petitioner.
CONVEYANCE, SPECIAL DIET & ATTENDANT CHARGES
76. In his evidence by way of affidavit(Ex. PW6/A), injured has deposed that he had spent considerable amount on special diet and conveyance but he has failed to lead any cogent evidence on record in this regard. At the same time, it cannot be overlooked that he had sustained fracture left humerus. Thus, he would have taken special rich protein diet for his speedy recovery and would have also incurred considerable amount towards conveyance charges while commuting to the concerned hospital as OPD patient for his regular check up & follow up during the period of his medical treatment. He would have been definitely helped by some person either outsider or from his family, to perform his daily activities as also while visiting the hospital during the course of his medical treatment. In these facts and circumstances, I hereby award a notional sum of Rs. 5,000/ for conveyance charges and a sum of Rs. 10,000/ each for special diet and attendant charges to the petitioner.
Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 50 of 92MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019 Thus, the total compensation is assessed as under:
1. Medical Expenses Rs. 49,579/
2. Loss of income Rs. 25,400/
3. Pain and suffering Rs. 50,000/
4. Loss of general amenities and Rs. 25,000/ enjoyment of life
5. Conveyance & special diet Rs. 25,000/ Total Rs. 1,74,579/ Rounded off to Rs. 1,75,000/ Compensation in MACP No. 4889/16(Injured Vijay) MEDICAL EXPENSES
77. PW7 i.e. injured Vijay himself, has deposed in his evidence by way of affidavit (Ex. PW7/A) that after the accident, he was removed to Government Hospital, Sonepat, Haryana, wherefrom he was referred to PGIMS, Rohtak, Haryana, where he remained admitted from 25.04.12 to 09.05.12. He further deposed that he had spent Rs. 94,600/ on his medical treatment. He has relied upon his medical bills as Ex. PW7/1(colly). During his crossexamination on behalf of respondents no. 1 & 3, he denied the suggestion that the medical bills filed by him on record, were forged or same were procured without any prescription. He further denied the suggestion that he had not incurred any amount on various heads as stated by him in his affidavit. Respondent no. 2(B) did not crossexamine this witness despite grant of opportunity, whereas respondent no. 2 & 2(C) did not crossexamine him on this aspect.
Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 51 of 92MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019
78. It is relevant to note that the injured has relied upon medical bills to the tune of Rs. 94,600/ only, which are exhibited as Ex. PW7/1 (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. They have also not led any evidence in rebuttal so as to create any doubt on the genuineness of said bills. Accordingly, a sum of Rs. 94,600/ is awarded to the petitioner under this head.
LOSS OF INCOME
79. Injured namely Sh. Vijay (PW1) has categorically deposed in his evidence by way of affidavit(Ex PW7/A) that he was 21 years old; he was professional teacher and used to give home tuitions and was earning Rs. 10,000/ per month at the time of accident. He further deposed that he could not go to his work place for a considerable period due to the injuries sustained by him in the accident. During his crossexamination on behalf of respondent no. 1, he deposed that he had studied upto 12 th class. He further deposed that he had not filed any document regarding his qualification. He denied the suggestion that he was not educated. He also denied the suggestion that he was not employed or that he was not earning any amount as on the date of accident. During his crossexamination on behalf of respondent no. 2, he deposed that he did not have any document to show his income at the time of accident. Respondent no. 2(B) did not crossexamine this witness despite grant of opportunity, whereas respondent no. 2 & 2(C) did not crossexamine him on this aspect.
Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 52 of 92MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019
80. The Follow up and Discharge Card (Ex. PW7/3) of PT.B.D Sharma Post Graduate Institute of Medical Science, Rohtak in respect of petitioner/injured Vijay, would reveal that he was got admitted in the said hospital on 25.04.12 and was discharged from said hospital on 09.05.2012. Said treatment record would also show that the injured had suffered multiple injuries on various parts of his body including pupil, chest, lacerated wounds of different sizes on his parietal region, right knee and left tibia, etc. Said part of his testimony has gone unchallanged and uncontroverted from the side of respondents.
81. Apart from the aforesaid documents produced by PW1 i.e. the petitioner, he has failed to file any other medical treatment record in order to show the exact period upto which he had received the medical treatment. Nevertheless, it can not be overlooked that the petitioner had suffered multiple injuries on various parts of his body including pupil, chest, lacerated wounds of different sizes on his parietal region, right knee and left tibia, etc. Considering the nature of injuries sustained by the petitioner and in view of the treatment record brought on record, it is presumed that he would not have been able to work at all atleast for a period of three months or so.
82. During the course of arguments, counsel for injured fairly conceded that for want of any cogent evidence with regard to exact avocation or monthly income of injured/petitioner, his income has to be Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 53 of 92 MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019 assessed as per Minimum Wages Act applicable in State of Haryana during the relevant period. It may be noted here that the petitioner has failed to file any document concerning his educational qualification. In these circumstances, the minimum wages of an unskilled worker under Minimum Wages Act in State of Haryana during the period in question, has to be taken into consideration. The minimum wages of an unskilled worker have been taken as Rs. 6,350/ per month as on the date of accident which is 25.04.2012. Thus, a sum of Rs. 19,050/ (Rs. 6,350/ x 3) is awarded in favour of petitioner under this head and against the respondents.
PAIN AND SUFFERING
83. Injured himself as PW1 has deposed in his evidence by way of affidavit(Ex PW1/A) that he had sustained grievous injuries. As already noted above, his treatment record (Ex. PW7/3) as available on file, would corroborate his ocular testimony which has otherwise gone unchallenged and unrebutted from the side of respondents. It can not be overlooked that he had suffered multiple injuries on various parts of his body including pupil, chest, lacerated wounds of different sizes on his parietal region, right knee and left tibia, etc. Thus, he would have undergone great physical sufferings and mental shock on account of the accident in question. Keeping in view the medical treatment record of petitioner available on record, I hereby award a sum of Rs. 40,000/ towards pain and sufferings to the petitioner.
Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 54 of 92MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019 LOSS OF GENERAL AMENITIES & ENJOYMENT OF LIFE
84. As already mentioned above, there is sufficient evidence on record to establish that the petitioner had suffered multiple injuries on various parts of his body including pupil, chest, lacerated wounds of different sizes on his parietal region, right knee and left tibia, etc. Thus, he would not have been able to enjoy general amenities of life after the accident in question for considerable period and his quality of life has been definitely affected. In view of the nature of injuries suffered by him and his continued treatment for considerable period, I award a notional sum of Rs. 20,000/ towards loss of general amenities and enjoyment of life to the petitioner.
CONVEYANCE & SPECIAL DIET
85. In his evidence by way of affidavit(Ex. PW7/A), injured has deposed that he had spent considerable amount on special diet and conveyance but he has failed to lead any cogent evidence on record in this regard. At the same time, it cannot be overlooked that he had sustained fracture left humerus. Thus, he would have taken special rich protein diet for his speedy recovery and would have also incurred considerable amount towards conveyance charges while commuting to the concerned hospital as OPD patient for his regular check up & follow up during the period of his medical treatment. In these facts and circumstances, I hereby award a Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 55 of 92 MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019 notional sum of Rs. 5,000/ for conveyance charges and a sum of Rs. 10,000/ for special diet to the petitioner.
Thus, the total compensation is assessed as under:
1. Medical Expenses Rs. 94,600/
2. Loss of income Rs. 19,050/
3. Pain and suffering Rs. 40,000/
4. Loss of general amenities and Rs. 20,000/ enjoyment of life
5. Conveyance & special diet Rs. 15,000/ Total Rs. 1,88,650/ Rounded off to Rs. 1,89,000/ Compensation in MACP No. 4886/16(Injured Ashok) MEDICAL EXPENSES
86. PW8 Sh. Ashok i.e. injured himself, has deposed in his evidence by way of affidavit(Ex. PW8/A) that after the accident, he was removed to Government Hospital, Sonepat, Haryana. On the same day of the accident i.e. 25.04.12, he was referred to Saroj Hospital, Rohini, where he remained admitted from 25.04.12 to 13.05.12. He again remained admitted in the said hospital from 13.06.12 to 16.06.12, again on 11.07.12, again from 21.08.12 to 25.08.12, again from 25.09.12 to 29.09.12, again from 09.11.13 to 10.11.12 and again from 21.05.14 to 22.05.14. He deposed to have spent about Rs. 11,91,099/ on his medical treatment.
Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 56 of 92MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019 During his crossexamination on behalf of respondents no. 1 & 3, he denied the suggestion that the medical bills filed by him on record, were forged or were procured. He further denied the suggestion that he had not incurred any amount on various heads as stated by him in his affidavit. Respondent no. 2(B) did not crossexamine this witness despite grant of opportunity, whereas respondent no. 2 & 2(C) did not crossexamine him on this aspect.
87. It is relevant to note that the injured has relied upon medical bills to the tune of Rs. 11,80,952/ only, which are exhibited as Ex. PW8/5 (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. They have also not led any evidence in rebuttal so as to create any doubt on the genuineness of said bills. Accordingly, a sum of Rs. 11,80,952/ is awarded to the petitioner under this head.
LOSS OF INCOME/LOSS OF LEAVES
88. Injured namely Sh. Ashok (PW8) has categorically deposed in his evidence by way of affidavit(Ex PW8/A) that he was posted as Constable in Haryana Police and was getting Rs. 19,192/ per month at the time of accident. He further deposed that he had suffered loss of income of more than 3 months i.e. from 25.04.12 to 10.06.12. During his cross examination on behalf of respondent no. 1, he denied the suggestion that he had not suffered any financial loss due to this accident. He volunteered Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 57 of 92 MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019 that he was still under treatment. He admitted that he get salary for 13 months from his office. During his crossexamination on behalf of respondent no. 2, he admitted that he was government servant. He deposed that his salary was 35,000/ at that time and he was still in the service. During his crossexamination on behalf of respondent no. 3, he deposed that at the time of accident, he was working as Constable and was drawing salary of Rs. 19,000/ per month. He further deposed that he had been promoted to the post of HC and he was drawing monthly salary of Rs. 34,400/. He also deposed that he did not have any document to show that he had suffered any loss of salary due to the accident. He denied the suggestion that he had not suffered any financial loss due to the accident. Respondent no. 2(B) did not crossexamine this witness despite grant of opportunity, whereas respondent no. 2(C) did not crossexamine him on this aspect.
89. PW9 HC Mahesh Kumar i.e. offical from the office of employer of injured produced salary record in respect of injured Ashok Kumar from April 2012 to May 2015 and exhibited the same as Ex. PW9/1. He deposed that as per said record, victim used to get the salary of 13 months. During his crossexamination on behalf of respondent no. 1, he denied the suggestion that salary record of Sh. Ashok Kumar, was forged and fabricated. During his crossexamination on behalf of respondent no. 2, he deposed that he could only tell that at the time of accident, victim Ashok Kumar was posted as Constable at District Gurgaon. He further deposed Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 58 of 92 MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019 that salary record had been prepared by him. He again said that salary record was prepared by ASI Sanjay Kumar (Pay Clerk) and he was his assistant. He admitted that medical bills of the employees are reimbursed as per Haryana Govt. Policy. He did not have any record whether Ashok Kumar had asked for reimbursement of his medical bills relating to accident or not. He admitted that if any employee asked for the reimbursement of medical bills, same does not affect the salary or any other benefit. During his crossexamination on behalf of respondent no. 3, he deposed that date of birth of Sh. Ashok Kumar was not available on the record which he had brought on that day. He had not brought any record regarding leave or reimbursement of medical bills as same pertain to other branch. He did not have any record regarding loss if any of the salary of Ashok Kumar. He further deposed that Sh. Ashok Kumar had not suffered any loss of salary or any other loss regarding his employment as per his record. He also deposed that last drawn salary of Ashok Kumar was Rs. 32,233/ as on May 2015. He further deposed that in April 2012, injured was getting gross salary of Rs. 19,192/ per month. Respondent no. 2(B) did not cross examine this witness despite grant of opportunity.
90. PW12 Dr. Vinay Gupta, Orthopedic Surgeon, Saroj Hospital, Delhi has testified that documents Ex. PW8/5 and Ex. PW8/6 had been issued by Orthopedic Department of their hospital. He further testified that document Ex. PW8/7(colly) were the bed rest certificate issued by him on different dates. He deposed that patient Ashok Kumar was admitted in their Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 59 of 92 MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019 hospital with history of road traffic accident. He also testified that the document Ex. PW8/8(Colly) were OPD Cards, issued by their hospital on different dates. During his crossexamination on behalf of respondent no. 3, he deposed that he did not remember as to how much bed rest was advised to injured. He had brought the admission record of the said injured. He further deposed that OPD record was not kept by the hospital and was kept only by the patient. He also deposed that the aforesaid patient had visited him lastly on 08.10.16 for regular checkup. He was deposed that the patient was fit at that time and was doing his job as advised by him for light duty vide his certificate dated 10.06.15. Respondents no. 1, 2, 2(B) & 2 (C) did not crossexamine this witness despite grant of opportunity.
91. As per the documentary evidence brought on record, the petitioner/injured was working as Constable with Haryana Police and was drawing monthly salary of Rs. 19,192/ at the time of accident.
92. PW9 has categorically admitted during his crossexamination that claimant Ashok Kumar did not suffer any loss of salary or any loss regarding his employment as per record produced by him during the inquiry. That being so, it is duly established that said claimant did not suffer any loss of income on account of injuries sustained by him due to the accident. Nevertheless, he is shown to have remained admitted in Saroj Hospital for considerable period on several occasions as already discussed hereinabove. The total period of his admission in the aforesaid hospital Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 60 of 92 MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019 comes out to 38 days. Since the claimant remained admitted in the hospital for said period, he would have definitely remained on leave from his office for the said period. Apart from said period, it can be safely presumed that he would have also availed some more leaves from his job in order to recover from the injuries sustained by him. As per document(Ex. PW12/1), the claimant is declared fit for light duty vide General OPD Card dated 10.06.15. In the absence of definite evidence being led on record showing the actual period of leaves availed by said claimant due to impact of injuries sustained in the accident, it would involve some guess work on the part of this Claims Tribunal. Taking the overall facts and circumstances of the case including the nature of injuries sustained by him, as already detailed above and the frequent admissions of claimant in Saroj Hospital from time to time, it is presumed that he would have availed leaves for a period of 10 months or so. It is duly established from the testimony of PW9 that monthly salary of claimant at the time of accident was Rs. 19,192/. Accordingly, a sum of Rs. 1,91,920/(Rs. 19,192/ X 10) is awarded to the petitioner under this head.
PAIN AND SUFFERING
93. Injured himself as PW8 has deposed in his evidence by way of affidavit(Ex PW8/A) that he had sustained grievous injuries in the accident in question. As per his medical treatment record (which is part of Ex. PW8/6 colly), he had sustained compound fracture right femur with loss of Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 61 of 92 MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019 bone piece, compound comminuted fracture tibia and fibula right with no circulation, with no sensation distal part of leg with fracture tibial condyle, blunt injury abdomen and ruptured spleen injury in kidney. As per his Discharge Cards(which are part of Ex. PW8/6 colly) of Saroj Hospital, his operation for cross leg flap skin large plus grafting(medium) was done under SA on 13.06.12 and operation for flap deattachment and inset from right leg was also done. On 22.08.12, ORIF of fracture shaft femur right with interlocking nail with bone grafting was also done. Operation for open reduction with internal fixation with distal tibial locking plate right bone grafting was done. On 09.11.13, curretage of osteomylitis with removal of implant was done under SA. On 21.05.14, curettage with gentamycin beads implantation was done. He has also sustained permanent disability to the extent of 79% in relation to his right lower limb due to the accident in question. Thus, he would have undergone great physical sufferings and mental shock on account of the accident in question.
94. In the case titled as "IFFCO Tokio General Insurance Company Limited Vs. Arjun & Ors.", MAC APP. No. 01/2013, decided on 04.01.20158 by Hon'ble Delhi High Court, claimant had suffered disability of 50% in relation to right upper limb and Hon'ble Delhi High Court had awarded compensation of Rs. 1,50,000/ each under the heads of Pain & Suffering and Loss of amenities and enjoyment of life. Taking guidance from the said decision and keeping in view the medical treatment record of petitioner available on record and after considering the fact that the Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 62 of 92 MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019 petitioner herein has suffered permanent disability of 79% in relation to his right lower limb, I hereby award a sum of Rs. 3,00,000/ towards pain and sufferings to the petitioner.
LOSS OF GENERAL AMENITIES & ENJOYMENT OF LIFE
95. As already mentioned above, there is sufficient evidence on record to establish that he had sustained grievous injuries. His treatment record as available on file, would show that he remained admitted in Saroj Hospital, Rohini, from 25.04.12 to 13.05.12, again from 13.06.12 to 16.06.12, again on 11.07.12, again from 21.08.12 to 25.08.12, again from 25.09.12 to 29.09.12, again from 09.11.13 to 10.11.12 and again from 21.05.14 to 22.05.14. His treatment record would further show that he had suffered compound fracture right femur with loss of bone piece, compound comminuted fracture tibia and fibula right with no circulation, with no sensation distal part of leg with fracture tibia condyle, blunt injury abdomen and ruptured spleen injury of kidney due to the impact of the accident. He has also sustained permanent disability to the extent of 79% in relation to his right lower limb. Thus, he would not be able to enjoy general amenities of life after the accident in question, during rest of his life and his quality of life has been definitely affected. In view of the nature of injuries including permanent disability suffered by him and his continued treatment for considerable period, I award a notional sum of Rs. 3,00,000/ towards loss of general amenities and enjoyment of life to the petitioner.
Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 63 of 92MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019 CONVEYANCE, SPECIAL DIET & ATTENDANT CHARGES
96. The petitioner/injured as PW8 has deposed in his evidence by way of affidavit (Ex. PW8/A) that he had spent Rs. 1,00,000/ each on special diet and conveyance and Rs. 50,000/ on attendant but he has failed to lead any cogent evidence in this regard. Nevertheless, it cannot be overlooked that he had sustained compound fracture right femur with loss of bone piece, compound comminuted fracture tibia and fibula right with no circulation, with no sensation distal part of leg with fracture tibia condyle, blunt injury abdomen and ruptured spleen injury of kidney due to the impact of the accident. He has also sustained permanent disability to the extent of 79% in relation to his right lower limb due to the accident. Thus, he would have taken special rich protein diet for his speedy recovery and would have also incurred considerable amount towards conveyance charges while commuting to the concerned hospital as OPD patient for his regular check up & follow up during the period of his medical treatment. He would have been definitely helped by some person either outsider or from his family, to perform his daily activities as also while visiting the hospital during the course of his medical treatment. In these facts and circumstances, I hereby award a notional sum of Rs. 10,000/ for conveyance charges and a sum of Rs. 20,000/ each for special diet and attendant charges to the petitioner.
Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 64 of 92MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019 LOSS OF FUTURE INCOME
97. As already stated above, the petitioner is shown to have sustained 79% permanent disability in relation to his right lower limb. Same is quite evident from Disability Certificate dated 15.09.16 of Medical Board of SRHC Hospital, Narela, Delhi. The petitioner has also testified in this regard while examining himself as PW8 during inquiry. He has not been crossexamined by the respondents on this aspect.
98. PW10 Dr. S.P. Sharma, Orthopedic Surgeon, Civil Hospital, Sonepat, Haryana produced Disability Certificate(Ex. PW8/3) of injured Ashok Kumar and deposed that the aforesaid injured had suffered 50% temporary disability in respect of right lower limb. He further deposed that his condition was likely to improve. He also deposed that as per rule, temporary disability was to be assessed after five years. During his cross examination on behalf of respondents no. 3, he deposed that he did not remember whether the aforesaid patient had ever remained under his treatment or not. He denied the suggestion that no calculation of disability has been mentioned. He volunteered that the ankle and knee stiffness amounted to 30% disability each and total disability of 50% for whole body. He admitted that words 'whole body' had not been mentioned in the said certificate. However, he explained that the said disability certificate was issued in respect of whole body only as per their rule. He denied the suggestion that there was no such rule or guideline for issuance of disability Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 65 of 92 MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019 for whole body. He admitted that reassessment period was not mentioned in the certificate. He further denied the suggestion that the Board had issued the certificate incorrectly without following the guidelines or without any basis. He also denied the suggestion that injured was not suffering from any temporary disability or that the said certificate had been issued incorrectly just to favour the petitioner. He further admitted that except the disability certificate Ex. PW8/3 and the register containing the detail of the certificate, the hospital had no other document in respect of said disability certificate. The hospital did not refer any treatment record at the time of preparation of said certificate. During his crossexamination on behalf of respondent no. 2, he admitted that report register brought by him on that day, did not bear the signatures of other two doctors of the Medical Board against the entry in respect of Ex. PW8/3. He further admitted that the relevant particulars regarding diagnostic and percentage have been in his handwriting and other two doctors had only signed the certificate. He volunteered that the other two doctors had also participated in the assessment. He denied the suggestion that other two doctors did not participate in the assessment process. He denied the suggestion that the disability certificate had been filled up only after the signature of other two members of the Board to help the victim. He could not tell whether the condition of the aforesaid patient could improve before the expiry of five years. He volunteered that the rule was for reassessment after five years.
Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 66 of 92MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019
99. In view of the fact that the disability opined in Ex. PW8/3 was temporary and proper record showing the manner in which said disability was assessed, directions were issued to assess disability of claimant Ashok Kumar through Disability Board of SRHC Hospital, Narela. As per the testimony of PW11 Dr. Ashutosh Gupta, who was one of the members of Disability Board of SRHC Hospital, the petitioner was found to have suffered 79% permanent disability in relation to his right lower limb. He deposed that Medical Board of BSA Hospital had assessed the disability of the patient to be permanent in nature which was not likely to improve. He exhibited the Disability Certificate as Ex. PW11/1. He further deposed that the aforesaid patient would not be able to use his right lower limb normally in his whole life. During his crossexamination on behalf of respondent no. 2, he denied the suggestion that he had not personally examined the injured. He further denied the suggestion that injured did not suffer 79% disability. During his crossexamination on behalf of respondent no. 3, he deposed that the disability certificate had been issued on the basis of treatment record of Saroj Hospital, MLC and personal examination of injurd. He denied the suggestion that the disability assessed by the Board had no relation with injuries as mentioned in the MLC and treatment record. He admitted that the disability assessed by the Board was not in respect of whole body. He further deposed that he could not tell the disability qua the whole body as there were no such guidelines. He also deposed that the injured could walk with support of stick. Respondents no. 1, 2(B) & 2 (C) did not crossexamine this witness despite grant of opportunity.
Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 67 of 92MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019
100. The disability certificate(Ex. PW11/1) of injured would reveal that he had suffered 79% permanent disability in relation to right lower limb. It is mentioned therein that his case was that of operated case of compound fracture shaft femur right with compound fracture of BB leg right.
101. It is pertinent to note that the petitioner is still working as HC in Haryana Police, meaning thereby he got promoted to the said post from the post of Constable which he was holding at the time of accident. In this backdrop, it was argued on behalf of insurance company that the petitioner has not suffered any loss of income after the accident and there is nothing on record to show that he would not be entitled for promotion due to the injuries suffered on account of the accident. Counsel for insurance company also argued that the petitioner shall be getting pension from his employer even after his retirement. Hence, no compensation should be awarded to the injured under this head.
102. Per contra, it is argued on behalf of petitioner that he is entitled to compensation under this head as he would not be able to effectively do any avocation after his retirement from the service. However, it is fairly conceded during the course of arguments that the petitioner shall be getting the pension from his employer after retirement. In support of his submission, counsel for petitioner has placed reliance upon decision of Hon'ble Delhi High Court in the case of "Deshraj Singh Gautam Vs. Sunil Kumar & Ors.", bearing MAC APP No. 632/2007 decided on 20.05.16.
Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 68 of 92MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019
103. Similar question directly arose for consideration before Hon'ble Delhi High Court in recent case titled as "Raj Kumar Malik Vs. United India Insurance Company Limited & Ors., bearing MAC APP No. 161/2011 decided on 10.10.17. In the said matter, the injured/appellant was a government servant and had suffered permanent disability to the extent of 74% in relation to right upper limb. While dealing with the contention raised on behalf of claimant that no compensation for loss of earning capacity in future has been awarded, Hon'ble Delhi High Court held in para 5 of the order that loss of earning capacity post retirement, had to be considered by the award of compensation and for such purposes, the Tribunal could adopt the multiplier of 9. It further held that in such calculation, however, it would also need to be kept in mind that the claimant would have earned 50% of the last emoluments drawn as pension and thus, the consequent functional disability will have to make up for the loss against the balance. Similar view has been taken by Hon'ble Delhi High Court in "National Insurance Co. Ltd. Vs. Hari Om Const. & Ors., bearing MAC APP No. 464/2011 decided on 03.11.17.
104. Now, turning back to the facts of the present case. As already noted above, the petitioner is still working as HC in Haryana Police and he would in normal circumstances, retire from the services after attaining the age of retirement i.e. 60 years and he shall be getting pension from his employer. He is shown to have sustained permanent physical impairment to the extent of 79% in relation to his right lower limb. He had sustained Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 69 of 92 MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019 compound fracture right femur with loss of bone piece, compound comminuted fracture tibia and fibula right with no circulation, with no sensation distal part of leg with fracture tibial condyle, blunt injury abdomen and ruptured spleen injury in kidney due to the accident. Having regard to the percentage of loss of earning capacity in the light of injuries sustained by petitioner, as noted above, his functional disability is taken as 40% in relation to whole body. Applying the ratio of law discussed by Hon'ble Delhi High Court in the above cited decisions, the loss of future income of petitioner comes out to Rs. 8,29,100/(rounded off) (Rs. 19,192/ X 40/100 X12 X9). The pension to the extent of 50% would come out to Rs. 4,14,550/. Thus, a sum of Rs. 4,14,550/is awarded in favour of petitioner under this head.(Reliance placed on Jagdish Vs. Mohan & Ors. (2018) 4 SCC 571 and unreported decision of Hon'ble Delhi High Court in " The New India Assurance Co. Ltd. Vs. Deepak Arora & Ors.", MAC APP No. 320/2013 decided on 28.09.18).
Thus, the total compensation is assessed as under:
1. Medical Expenses Rs. 11,80,952/
2. Loss of income/leaves Rs. 1,91,920/
3. Pain and suffering Rs. 3,00,000/
4. Loss of general amenities and Rs. 3,00,000/ enjoyment of life
5. Conveyance, special diet and Rs. 50,000/ attendant charges Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 70 of 92 MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019
6. Loss of future income Rs. 4,14,550/ Total Rs. 24,37,422/ Rounded off to Rs. 24,38,000/
105. Now, the question which arises for determination is as to which of the respondents is liable to pay the compensation amount. Counsel for insurance company sought to avoid the liability of insurance company to pay the compensation amount on the ground that previous insurance policy on the basis of which insurance policy for the period in question in respect of offending vehicle had been issued, was found to be fake. Therefore, the insurance policy for the current period is voidabinitio in view of Section 149 (2) (b) of M.V Act. For this purpose, he heavily relied upon the testimonies of R3W1 namely Ms. Shreshtha, Legal Executive of Bharti Axa General Insurance Company Ltd as well as that of R3W2 namely Sh. Naveen Jain, Business Centre Head of National Insurance Co. Ltd. He also relied upon unreported decision of Hon'ble Punjab & Haryana High Court in the case titled as " Rajveer Singh Gurjar and another Vs. Veer Singh and Another" , FAO No. 3874 of 2015 decided on 25.07.18. He also argued that there was close proximity in this case, inasmuchas cover note was issued from 24.04.12 to 23.04.13 and the accident in question took place on 25.04.12, which also shows that insured had managed to obtain insurance policy from R3 in respect of offending car for the period in question, by concealment of material facts regarding previous insurance policy being fake.
Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 71 of 92MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019
106. On the other hand, it was argued on behalf of respondents no. 2(B) and 2(C) that they are not liable to pay any compensation amount in this case as they were not the registered owner of the offending car as on the date of accident. Their respective counsels argued that the offending vehicle was duly insured with respondent no. 3 as on the date of accident in question and thus, no liability can be fastened upon them to pay any compensation amount in these cases. It was further argued on behalf of respondent no. 2(B) that said respondent was also not in possession of the offending car as on the date of accident in question. For this reason also, said respondent is not liable to pay any compensation amount. In order to buttress these submissions, they heavily placed reliance upon the judgments in the matter titled as "Naveen Kumar Vs. Vijay Kumar & Ors.", Civil Appeal No. 1427/2018, decided on 06.02.18 and " Pushpa @Leela & Ors. Vs. Shakuntala & Ors.", AIR 2011 SC 682.
107. Counsel for respondent no. 2, however argued that the offending car had already been sold to M/s. Himgiri Car Pvt. Ltd vide Delivery Receipt dated 08.12.11(Ex. R2W1/1) and all the relevant documents including signed copy of Form No. 29 & 30 in respect of said vehicle, were duly handed over to said company and possession of vehicle was also handed over at that time. He further submitted that this fact has been admitted by said company and therefore, said company became owner of the vehicle for all intent and purposes. Hence, it can not be saddled with liability to pay the compensation amount in these cases. He Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 72 of 92 MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019 further argued that insurance of the offending car was taken in the name of respondent no. 2 without its knowledge and said respondent did not pay any premium for the period in question. Thus, the said respondent can not be made liable to pay the compensation amount. Alternatively, he argued that since there was valid insurance in respect of offending car as on the date of accident, insurance company is liable to pay the compensation amount in these cases.
108. In order to appreciate the aforesaid contentions raised on behalf of the respondents, it would be appropriate to discuss the testimonies of the relevant witnesses examined on this issue. PW3 Sh. Nand Gopal, MLO, Transport Department, South Zone6, Delhi has produced complete file in respect of vehicle bearing registration no. DL3C AL0919 and exhibited the same as Ex. PW3/1. He deposed that as per their record, said vehicle was registered in the name of Hyundai Motors Ind. Ltd right from 13.06.05 till the date of recording his statement, which is 30.01.14 and it was having validity till 12.06.2020. He further deposed that as per record, Hyundai Motors India Ltd. never applied for transfer of ownership of the said vehicle. He also deposed that no intimation had ever been received by them from registered owner regarding sale of said vehicle, as per their record. During his crossexamination on behalf of respondent no. 2, he deposed that as per Motor Vehicle Act, the responsibility of getting the vehicle registered lies upon both i.e. seller and purchaser. He further deposed that for change in registration, Form No. 29 Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 73 of 92 MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019 & 30 in duplicate plus original RC, insurance and address proof of purchaser, were required to be submitted. No other document was required for transfer of the vehicle. He admitted that they did not use to transfer name in the registration certificate on the intimation of the seller of the vehicle. He further deposed that if he receives any intimation from the seller then same is placed on file. He admitted that Ex. PW3/1 was computerized generated document. He admitted that date had not been mentioned in Ex. PW3/1. He volunteered that it had been issued subsequently on 16.12.13 at the request of the Court.
109. PW6 namely Munesh (one of the injured person) denied the suggestion on behalf of respondent no. 2 that the registered owner has no liability. He deposed that he had no knowledge whether the offending car was transferred to any other person as on the date of accident or not. During his crossexamination on behalf of respondent no. 2(C), he deposed that he was unaware of the fact whether Manish Parashar had purchased the vehicle no. DL3CAL0919 or not. He denied the suggestion that the abovesaid vehicle was not in possession of respondent no. 2(C). Similar is the position with regard to the replies given by PW7 namely Vijay and PW8 namely Ashok during their respective crossexaminations on behalf of aforesaid respondents.
110. R2W1 Sh. Sukomal Satayen is the Assistant Manager(Legal) of respondent no. 2 company. He has deposed on the lines of defence raised by said respondent in their WS, in his evidence by way of affidavit Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 74 of 92 MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019 (Ex. R2W1/A). He has relied upon copy of delivery receipt dated 08.12.11 alongwith acknowledgement as Ex. R2W1/1, copy of cheque dated 08.12.11 regarding payment of sale amount of the vehicle, as Mark A, copy of retail invoice dated 15.12.11 in respect of said vehicle as Mark B, copy of Board Resolution passed in his favour as Ex. R2W1/5 and copy of RC of the vehicles sold by said company to Himgiri Cars Pvt. Ltd as Mark C. During his crossexamination on behalf of insurance company, he testified that he was working with R2 since 28.03.16. The offending car was manufactured by his company in the year 2005 and it remained in possession and use of his company till the date of its sale in the year 2012. On being confronted with proposal form concerning insurance of offending car for the period in question, he admitted that same was bearing official stamp of his company at point A but could not identify signature/initial appearing on said form which was exhibited as Ex. R2W1/X1. He feigned ignorance if previous insurance policy Ex. R2W1/X2 had been submitted alongwith Ex. R2W1/X1. He denied the relevant suggestions that said car was not sold by his company as claimed or that relevant sale documents produced by his company, were false or fabricated or that his company had furnished fake insurance policy for the previous year. He has not been crossexamined at all on behalf of respondents no.2(B) and 2(C). During his crossexamination on behalf of claimants, he could not tell whether any written intimation was sent to concerned Registering Authority by his company regarding sale of said car to Himgiri Cars Pvt. Ltd. He expressed ignorance that said car was still registered in the name of his company as Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 75 of 92 MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019 on date of accident i.e. 25.04.12. He denied the relevant suggestions that he was aware about the relevant facts or was intentionally concealing the same in order to avoid liability of his company to pay the compensation amount in these cases.
111. R2(C)W1 is R2(C) himself. He deposed in his evidence that at the time of employing R1 as driver by his father, his father had taken driving test of R1 and had satisfied himself that R1 was skilled driver. His father had also seen copy of DL of R1 and found it to be genuine and also got the same verified from the office of Licencing Authority, Meerut. He relied upon copy of DL of R1 as Mark A and certified copy of judgment/award dated 30.10.14 passed by Claims Tribunal, Sonepat in connected claim petition filed by claimants with regard to fatal injuries sustained by one Sudama in same road accident as Ex. RX. He has not been crossexamined at all on behalf of respondents no. 2 and 2(B). During his crossexamination on behalf of insurance company, he could not disclose the exact date of purchase of aforesaid car by his father. He deposed that they never tried to get the said vehicle released on superdari from police station and did not have any knowledge about the existence of insurance policy of said vehicle as on the date of accident. However, he admitted during his cross examination on behalf of claimants that the offending car was seized by the police and also that the said car was in possession of his father as on 25.04.12.
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112. R3W1 Ms. Shreshtha i.e. official of respondent no. 3/insurance company deposed that respondent no. 2 had got the offending car insured with her insurance company on the basis of proposal form (Ex. R2W1/X1) and had furnished previous fake insurance policy (Ex. R2W1/X2), on the basis of which her company had issued insurance cover note (Ex. R3W1/1) for the period from 24.04.12 to 23.04.13. She also deposed that on verification made from National Insurance Company Limited, it was revealed that previous insurance policy was fake. She also deposed that on the basis of fake insurance policy furnished by R2 with her company, R2 tried to claim no bonus and also avoided inspection of the vehicle and therefore, insurance policy issued by her company for the period in question, is voidabinitio. During her crossexamination on behalf of respondent no. 2, she admitted that her insurance company did not cancel insurance policy even after acquiring the knowledge that previous insurance policy was fake. He also admitted that insurance company never gave any kind of intimation to insured that insurance policy for previous year, was found to be fake and never called upon insured to furnish valid insurance policy, if any for the previous year. She denied the relevant suggestions that same was not done as insurance policy for the previous year, was valid or that false story was concocted by insurance company in order to avoid its liability to pay the compensation amount. She has not been crossexamined on behalf of respondents no. 2(B) and 2(C). During her crossexamination on behalf of claimants, she admitted that offending car was duly insured with her insurance company as on the date of accident i.e. 25.04.12. She Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 77 of 92 MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019 deposed that factum of previous insurance policy being fake, came to notice of company on 20.11.12. She expressed ignorance regarding any written complaint being lodged by its company against R2 with any government authority. She admitted not to have conducted any inquiry personally and also admitted that she had no personal knowledge about the kind of investigation carried out by Investigator of insurance company. After her attention was drawn towards copy of proposal form(which is part of Ex. PW8/9), she admitted that same was the copy of cover note(Ex. R3W1/1). On comparison of said two documents, she also admitted that relevant columns appearing at portion A to A1 in copy of proposal form were lying blank but said columns were filled up in cover note (Ex. R3W1/1).
113. R3W2 is the official of National Insurance Company Limited. He produced the relevant record in respect of insurance policy, which is claimed to be fake insurance policy submitted by insured with R3 for the period in question. Said witness deposed that insurance policy against the serial number mentioned in Ex. R2W1/X2, was issued in the name of Vikas Bansal for the period from 12.07.11 to 11.07.12 in respect of vehicle no. RJ 25C1703. He also deposed that Ex. R2W1/X2 was never issued by their office and said document is fake. He also produced Premium Collection Sheets for 11.07.11 and exhibited copies of relevant pages thereof as Ex. R3W2/2 (colly). During his cross examination on behalf of respondents no. 2, 2(B) and 2(C), he deposed that Ex. R3W2/2(colly) were generated from Computer System installed in his office. He alone had the access to the Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 78 of 92 MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019 said computer system which was password protected. He denied the suggestions that said documents were forged or fabricated by him at the instance of respondent no. 3 or that Ex. R2W1/X2 is genuine insurance policy issued by his company. Nothing material came on record during his crossexamination on behalf of claimants.
114. The admitted position which emerges from the testimonies of the witnesses discussed hereinabove and from the record is that offending car had been sold by R2 to M/s. Himgiri Cars Pvt. Ltd on 08.12.11. Said company sold the said car to R2(B) on 11.12.11 and R2(B) further sold the said car to R2(C) on 29.01.12. These facts have been duly admitted by respondents no. 2(B) and 2(C) in their respective written statements filed on record. This is apart from the fact that relevant documents regarding sale of said car by aforesaid respondents, except delivery receipt (Ex. R2W1/1) have not been proved during the course of inquiry. It is also equally true fact as established on record from the testimony of PW3 and the documentary evidence that said vehicle continued to be registered in the name of R2 as on the date of accident i.e. 25.04.12. It is also an admitted position that the said car was duly insured in the name of R2 with R3 during the period in question. It is also duly established on record that previous insurance policy (Ex. R2W1/X2) was fake and was never issued by National Insurance Company Limited.
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115. Now, the question arises as to whether insurance company/R3, in the light of above discussed position, can be saddled with the liability to pay the compensation amount or not. In case, it is held that it is liable to pay compensation amount then the next question arises as to whether insurance company is entitled to recovery rights against the other respondents or not.
116. The contentions raised on behalf of R3/insurance company are two fold. The first limb of argument is that insurance co is not at all liable to pay any compensation amount to the claimants as the insurance policy became void in view of fake insurance policy for the previous year submitted by the insured. Hence, insurance company is liable to be exonerated from its liability to pay the compensation amount.
117. The aforesaid limb of argument raised on behalf of insurance company, needs to be decided on the touch stone of the statutory provisions contained in M.V Act and on the basis of law of the land as enunciated by Superior Courts. The conjoint reading of the provisions contained in Section 145 (b), Section 147 and Section 149 (1) of M.V Act in the backdrop of the object and the purpose behind the said enactment, would leave no scope of doubt that once Certificate of Insurance had been issued, then liability U/s 149 (1) M.V Act towards third parties on behalf of the insurance company exists, notwithstanding the fact that the insurance policy has been cancelled or is liable to be cancelled. Sub Section (5) of Section 147 of M.V Act starts with nonobstante clause, which gives Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 80 of 92 MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019 primacy and over riding effect notwithstanding any other law including Insurance Act, to the contrary. Thus, an insurer having issued the policy of insurance, is liable to indemnify the owner of the vehicle in respect of the claims covered by the policy.
118. Turning to the facts of the present case. It is an undisputed fact that respondent no. 3 had issued cover note (Ex. R3W1/1) in respect of offending vehicle i.e. Car bearing registration no. DL3CAL0919 for the period in question. It is nowhere the case of R3/insurance company that same had been cancelled at any point of time during the period of its validity i.e. from 24.04.12 till 23.04.13. Rather, R3W1 who is noneelse but the officer of insurance company/R3, admitted during her crossexamination that factum of previous insurance policy being fake came to notice of insurance company on 20.11.12 but still, insurance policy for the period in question, was never cancelled. Not only this, she also admitted that her insurance company never called upon the insured to furnish any valid insurance policy for the previous year and also did not give any kind of intimation to insured in that regard. That being the position emerging on record, I am of the considered opinion that the insurance co/R3 has statutory liability to pay the compensation amount to the claimants being duty bound to indemnify third party risk insured by it by virtue of the insurance policy issued in respect of offending vehicle for the period in question.
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119. Now, I shall deal with the second limb of argument raised on behalf of insurance co/R3 that in case it is made liable to pay compensation amount to third party, whether it should be held entitled to recover the said amount from insured. The said argument seems to be justified in a situation where the insurer/R3 acted diligently and would have promptly cancelled the insurance policy on acquiring knowledge of the fact that copy of insurance policy for the previous year submitted by insured, which led it to issue insurance policy for the period in question, was fake. None of these two things, was done by R3/insurance company in the present cases.
120. It needs no mention that as per Rule 142 of Central Motor Vehicles Rules 1989, cover note issued by authorized insurer is having validity for a period of 60 days from the date of its issue and the insurer is required to issue insurance policy before the date of expiry of the cover note. It may be noted here that insurance cover note expires on its own by efflux of time within 60 days, if not followed by a policy of insurance, within the prescribed time of 60 days. Section 147 (4) of M V Act casts an obligation on the insurance company to inform the registering authority in whose record the vehicle is registered or to the prescribed State Authority where the vehicle is registered, within seven days of expiry of the period that the cover note has lapsed without a policy of insurance being issued.
121. In the present case, it is an admitted position on record that respondent no.3/insurance company had issued cover note in respect of Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 82 of 92 MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019 offending vehicle for the period in question, in favour of respondent no. 2/insured. At no point of time, insurance company is shown to have acted diligently or promptly in cancelling the insurance policy. As already noted above, R3W1 admitted that insurance policy for the period in question, was not cancelled by her company and insured was never informed about the same during the existence of policy period. There is also no dispute to the fact that the insurance policy in question remained in force till the period of its validity i.e. from 24.04.12 till 23.04.13. This fact when considered in the light of relevant part of cross examination of R3W1/1 (i.e. Officer of respondent no. 3), leads to the conclusion that the entire conduct on the part of insurance co had been negligent. While saying so, I have also taken into consideration the fact that in the written statement originally filed by respondent no. 3/insurance company on 19.09.2012, no such plea was raised by it that insurance policy for the previous year submitted by insured, was fake one. Rather, it admitted in its written statement that there was valid insurance policy issued in the name of insured/respondent no. 2 for the period from 24.04.12 to 23.04.13. It was only at the time of filing affidavit in evidence of R3W1, the insurance company came out with the aforesaid plea that insurance policy for the period in question was void as the insured managed to get the policy issued on the basis of fake insurance policy for offending vehicle in respect of the previous year. No explanation whatsoever has been furnished by insurance company as to what kind of verification of previous insurance policy purportedly submitted by insured with it, at the time of issuance of insurance policy for the period in question, Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 83 of 92 MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019 had been made by it. Moreover, the said insurance policy remained in force throughout the period of its validity upto 23.04.13 and same was not cancelled at all. The insured was never called upon at any point of time to furnish any explanation on this aspect or to produce any valid insurance policy of the vehicle for the previous year, during the said period. The insurance company duly accepted the insurance premium while issuing the cover note of the vehicle for the period in question and used it for its benefit.
122. The heavy reliance placed by counsel for insurance company on unreported decision of Hon'ble Punjab & Haryana High Court in the case " Rajveer Singh Gurjar & Anr." (supra) is found to be misplaced inasmuch as the facts of the present cases are found to be distinguishable from the facts of the cited decision. Moreover, the decision rendered in the cited case, proceeded on the basis of finding that there was misrepresentation and concealment of material facts within the meaning of Section 149(1)
(b) of M.V Act. However, the insurance company in the present cases has failed to establish that there was misrepresentation and concealment of material facts on the part of insured when nothing has been brought on record on its behalf to prove that any effort whatsoever was made on its part to verify the insurance policy for the previous year submitted by insured, which led to issuance of policy by it for the period in question.
123. Apart from above, it is also relevant to note that in connected claim petition preferred by legal heirs of Sudama before Claims Tribunal, Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 84 of 92 MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019 Sonepat decided on 31.10.14 with regard to same road accident in question, the liability to pay the compensation amount has been put upon the insurance company. This fact gets duly substantiated from certified copy of award dated 31.10.14(Ex. RX) as placed on record from the side of R2(C). The said award is not shown to have been challanged by insurance company till date. It is also pertinent to mention that some kind of interpolation has been done by insurance company in proposal form (which is part of Ex. PW8/9 colly) visavis Ex. R3W1/1 inasmuchas some of the relevant columns are lying blank in Ex. PW8/9(colly) as compared to those similar columns which are found to be duly filled up in Ex. R3W1/1. This fact is also admitted by R3W1 during her crossexamination. There is no reason as to why the insurance company thought to fill up the relevant columns before filing the said document in the present case. Same shows that there had been callousness on the part of its officials and in order to cover up their lapses, relevant columns were filled up before the said document was filed on record in these cases. In view of peculiar facts and circumstances of these cases as discussed above, I am of the view that the insurance co /respondent no. 3 cannot be allowed to take the plea that insurance policy was void in view of Section 149 (2) (b) of M.V Act or that it is entitled to recover the compensation amount from the insured/respondent no. 2. While taking this view, I am also fortified by the judgments of Hon'ble Delhi High Court in the matters titled as "Reliance General Insurance Company Limited Vs. Suresh Kumar & Ors.", MAC APP No. 896/2014, decided on 09.05.16 and "Universal Sompo General Insurance Company Limited Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 85 of 92 MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019 Vs. Sushila Devi & Ors.", MAC APP No. 908/2012, decided on 27.11.17. In both these decided cases, similar plea was raised by insurance company that insured had obtained insurance policy by committing fraud and misrepresentation of facts with regard to insurance policy for the previous year but said plea had been rejected by Hon'ble Delhi High Court. Similar view has been taken by Hon'ble Punjab & Haryana High Court in FAO No. 3759/2018 titled as "United India Insurance Company Limited Vs. Roshni Devi & Ors.", decided on 14.08.18. Keeping in view the existence of valid insurance policy, respondent no. 3/insurance company is held liable to pay the compensation amount in all these cases, as it is liable to indemnify the insured. Issue no. 2 is decided accordingly in all these cases.
ISSUE NO. 3 RELIEF
124. In view of my findings on issues no. 1 & 2, I award a sum of Rs. 58,99,000/ in MAC Petition No. 4885/16(including interim award amount if any), a sum of Rs. 14,65,000/ in MAC Petition No. 4348/16(including interim award amount if any), a sum of Rs. 1,75,000/ in MAC Petition No. 4806/16, a sum of Rs. 24,38,000/ in MAC Petition No. 4886/16 and a sum of Rs. 1,89,000/ in MAC Petition No. 4889/16, alongwith interest @ 9% per annum w.e.f. date of filing of petitions i.e. 25.07.12 in favour of petitioner(s) 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). Issue no. 3 is decided accordingly.
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125. Statements of petitioners in terms of Clause 27 MCTAP were recorded. Having regard to the facts and circumstances of the cases and in view of their statements, it is hereby ordered that in MACP No. 4885/16 out of total compensation amount in MAC Petition No. 4885/16, the petitioner no. 1 Smt. Rani Devi shall be entitled to share amount of Rs. 30,99,000/ (Rupees Thirty Lacs and Ninety Nine Thousand Only) alongwith proportionate interest, the petitioner no. 2 Ms. Aarti shall be entitled to share amount of Rs. 14,00,000/ (Rupees Fourteen Lacs Only) alongwith proportionate interest and the petitioner no. 3 Ms. Bharti shall be entitled to share amount of Rs. 14,00,000/(Rupees Fourteen Lacs Only) alongwith proportionate interest.
126. Out of share amount of petitioner no. 1, a sum of Rs. 5,00,000/ (Rupees Five Lacs Only), shall be immediately released to her through her saving bank account no. 24850110089583 with UCO Bank, Gannaur, Sonepat, Haryana, having IFSC Code UCBA0002485 and remaining amount alongwith interest amount are directed to be kept in the form of FDRs in the multiples of Rs. 25,000/ each for one month, two months, three months and so on and so forth. having cumulative interest.
127. Out of share amount of petitioner no. 2, a sum of Rs. 1,50,000/ (Rupees One Lakh and Fifty Thousand Only), shall be Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 87 of 92 MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019 immediately released to her through her saving bank account no. 21480110050866 with UCO Bank, Gannaur, Sonepat, Haryana, having IFSC Code UCBA0002485 and remaining amount alongwith interest amount are 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.
128. Out of share amount of petitioner no. 3, a sum of Rs. 1,50,000/ (Rupees One Lakh and Fifty Thousand Only), shall be immediately released to her through her saving bank account no. 24850110089590 with UCO Bank, Gannaur, Sonepat, Haryana, having IFSC Code UCBA0002485 and remaining amount alongwith interest amount are 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.
129. In MACP No. 4348/16 out of total compensation amount, the petitioner no. 1 Sh. Vinod shall be entitled to share amount of Rs. 5,65,000/(Rupees Five Lacs and Sixty Five Thousand Only) alongwith proportionate interest and the petitioners no. 2 to 4 shall be entitled to share amount of Rs. 3,00,000/ (Rupees Three Lacs Only) each alongwith proportionate interest.
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130. Out of share amount of petitioner no. 1, a sum of Rs. 1,00,000/ (Rupees One Lakh Only), shall be immediately released to him through his saving bank account no. 14092121006781 with Oriental Bank of Commerce, Bahalgarh, District Sonepat, Haryana, having IFSC Code ORBC0101409 and remaining amount alongwith interest amount are directed to be kept in the form of FDRs in the multiples of Rs. 15,000/ each for one month, two months, three months and so on and so forth. having cumulative interest.
131. The entire share amounts of petitioner nos. 2 to 4 shall be kept in the form of FDRs till they attain the age of majority. However, monthly interest is allowed to be withdrawn by them through their father /natural guardian to be used for their welfare and upbringment.
132. In MACP No. 4806/16, a sum of Rs. 40,000/ (Rupees Forty Thousand Only), shall be immediately released to him through his saving bank account no. 154910033066 with Dena Bank, Rai, Sonepat, Haryana, having IFSC Code BKDN0731549 and remaining amount alongwith interest amount are directed to be kept in the form of FDRs in the multiples of Rs. 10,000/ each for a period of one month, two months, three months and so on and so forth, having cumulative interest.
133. In MACP No. 4886/16, a sum of Rs. 13,00,000/ (Rupees Thirteen Lacs Only)(since a sum of Rs. 11,80,952/ has already been Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 89 of 92 MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019 incurred by injured on his treatment), shall be immediately released to him through his saving bank account no. 32419748794 with State Bank of India, Mini Secretariat Branch, having IFSC Code SBIN0030512 and remaining amount alongwith interest amount are directed to be kept in the form of FDRs in the multiples of Rs. 15,000/ each for a period of one month, two months, three months and so on and so forth, having cumulative interest.
134. In MACP No. 4889/16, a sum of Rs. 40,000/(Rupees Forty Thousand Only), shall be immediately released to him through his saving bank account no. 33512173309 with State Bank of India, G. T. Road, Bahalgarh, Sonepat, Haryana, having IFSC Code SBIN0001532 and remaining amount alongwith interest amount are directed to be kept in the form of FDRs in the multiples of Rs. 10,000/ each for a period of one month, two months, three months and so on and so forth, having cumulative interest.
135. The FDRs to be prepared as per the aforesaid directions, shall be subject to the following directions:
(i) Original fixed deposit receipts be retained by the bank in safe custody. However, a passbook of the FDRs alongwith photocopies of the FDRs be given to claimants/petitioners. At the time of maturity, the fixed deposit amount shall be automatically credited in the savings bank accounts of the Claimants/petitioners.
(ii) No cheque book/Debit Card be issued to the claimants/petitioners without permission of the Court.
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(iii) No loan, advance or withdrawal be allowed on the fixed deposit(s) without permission of the Court.
(iv) The Bank shall not permit any joint name(s) to be added in the savings bank accounts or fixed deposit accounts of the victim.
(v) Half yearly statement of account be filed by the Bank before the Tribunal.
136. During the course of hearing final arguments, claimants were examined in order to ascertain as to whether they were entitled to exemption from deduction of TDS or not. All the claimants except claimant Ashok made statement on oath that they were entitled to exemption from deduction of TDS and also furnished their respective Forms No. 15G on record. However, claimant Ashok made the statement that he is not exempted from deduction of TDS.
137. Respondent no. 3, being insurer of offending vehicle, is directed to deposit the awarded 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 amounts 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 this Rani Devi & Ors , Vinod & Ors., Munesh, Ashok and Vijay Vs. Ganga Saran & Ors. Page 91 of 92 MACP Nos. 4885/16,4348/16, 4806/16, 4886/16 & 4889/16, FIR No. 116/12 DOD: 25.01.2019 award be given dasti to claimants. Copy of this award be also given dasti alongwith Forms no. 15G furnished by claimants except that of claimant namely Ashok (after retaining their copies on record) to counsel for insurance company for compliance. Copy of this award alongwith one photograph each, specimen signatures, copy of bank passbooks and copy of residence proof of all the petitioners, be sent to Nodal Officer of SBI, Rohini Court, Branch, Delhi for information and necessary compliance. Forms IVA, IVB and Form V 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. Signed copy of this Award be placed on the judicial records of MAC Petition Nos. 4348/16, 4806/16, 4886/16 & 4889/16, as per the rules.
Digitally signed by VIDYA VIDYA PRAKASH
PRAKASH Date: 2019.01.30
Announced in the open
12:01:05 +0530
Court on 25.01.2019 (VIDYA PRAKASH)
Judge MACT2 (North)
Rohini Courts, Delhi
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