Delhi District Court
Smt. Santosh vs Sh. Rafiq Ahmed Malik S/O Sh. Abdul Rasid ... on 21 April, 2017
1
IN THE COURT OF MS. BARKHA GUPTA : PO: MOTOR
ACCIDENT CLAIMS TRIBUNAL :
ROHINI COURTS:(NORTH WEST DISTRICT) DELHI
New No. 4984716
MACT No. : 226/12
UNIQUE ID No. : 02404C0131542012
1. Smt. Santosh
(Widow of the deceased namely Sh. Hem Raj)
....... (Petitioner No.1)
2. Sh. Kapil
(major son of the deceased) ....... (Petitioner No.2)
3. Sh. Vasu
( major son of the deceased) ........ (Petitioner No.3)
4. Sh. Ratan Lal
(father of the deceased who had also expired during the course
of trial) ........ (Petitioner No.4)
All R/o H. No. 4402, Gali Bhauji, Pahari Dheeraj, Sadar
Bazar, Delhi
Versus
1. Sh. Rafiq Ahmed Malik S/o Sh. Abdul Rasid Malik
R/o Vill. Badariwan P.S. & Distt. Pulwama
Jammu & Kashmir. ......(Driver/Respondent No.1)
MACT No. 226/12 Santosh Vs. Rafiq Ahmad 1 of 30 2
2. Farooq Ahmed Wani S/o Abdul Ramzan Wani R/o Vill. Reshipora, P.S. & Distt. Pulwama Jammu & Kashmir ........(Owner/Respondent No.2)
3. M/s Bajaj Allianz General Insurance Company Ltd., GE Plaza, Airport Road, Yerwada, Pune, Maharashtra ..........(Insurer/Respondent No. 3) Other Details:
DATE OF INSTITUTION : 11.04.2014 DATE OF RESERVING ORDER : 19.04.2017 DATE OF PRONOUNCEMENT : 21.04.2017 AWARD/JUDGMENT
1. The investigating officer namely ASI Jaivir Singh has filed the Detailed Accident Report (DAR) on 15.05.2012 in case FIR No. 66/12 pertaining to Police Station Adarsh Nagar, Delhi u/s 279/304A IPC regarding death of Sh. Hemraj (hereinafter referred to as the "deceased") wherein the Investigating Officer has submitted that Smt. Santosh, Sh. Kapil, Sh. Vasu and Sh. Ratan Lal, who are the wife, sons and father of the deceased are his sole legal heirs. Further, as per record, the said DAR was converted into claim petition by my Ld. Predecessor vide MACT No. 226/12 Santosh Vs. Rafiq Ahmad 2 of 30 3 order dt. 15.05.2012.
It is pertinent to discuss here that the petitioner no. 4 namely Sh. Ratan Lal had also expired during the course of trial and his name was deleted from the arena of parties vide order dated 18.04.2017
2. Brief facts of the case as revealed from the record are that on 17.03.2012, SI Sultan along with his team was present at M2K, Azadpur, Delhi on checking duty of the vehicles in the said area and at about 3:303:45 am, they caught hold of a truck bearing registration no. RJ05G4410 which was loaded with iron rods and the deceased namely Ct. Hemraj got the said truck parked at the side of the road and while he was coming back towards the raiding team, suddenly a truck bearing registration No. JK13B4437 (hereinafter referred to as the "offending vehicle") came from the side of Shakti Nagar, Delhi and after reaching at Azadpur, Sh. Rafiq Ahmed/R1 who was driving the offending vehicle drove the offending vehicle at the relevant time on wrong side of the road in a rash and negligent manner and in the said process, he hit the offending vehicle against the deceased who sustained fatal injuries and expired at the spot itself.
MACT No. 226/12 Santosh Vs. Rafiq Ahmad 3 of 30 4 It is further submitted that thereafter, Sh. Rafiq Ahmed/R1 ran away from the spot along with the offending vehicle who was chased by SI Sultan who succeeded in catching hold of R1 at Azadpur Mandi, Delhi along with the offending vehicle and the custody of R1 along with offending vehicle was handed over to the Investigating officer.
It is further submitted that at the relevant time, the deceased was about 41 years old who was working in the Transport Department as Foot Constable and was getting salary to the tune of Rs. 24,000/ per month. It is further submitted by the investigating officer that at the relevant time, the offending vehicle was owned by Sh. Farooq Ahmed/R2 and it was duly insured with Bajaj Allianz General Insurance Company Ltd./R3 in the name of R2.
3. As per record, Sh. Chetan/R1 and Ms. Renu/R2 have filed their written statement jointly wherein they have interalia submitted that the case of petitioners is false and R1 has not caused the alleged accident and hence, they are not liable to pay any compensation amount to the petitioners.
4. As per record, the M/s Bajaj Allianz General Insurance company/R3 has filed its written statement wherein it has MACT No. 226/12 Santosh Vs. Rafiq Ahmad 4 of 30 5 interalia contended that it is not liable to pay any compensation amount to any of the petitioners/LR's of deceased and has taken various defences as available U/ss 149(2) & 170 of M.V. Act. It has admitted that the offending vehicle was duly insured with it vide insurance policy No.OG121205180300004846 which was valid w.e.f 05.02.2012 to 04.02.2013 in the name of Farooq Ahmed Wani/R2. .
5. As per record vide order dt. 01.12.2012, my ld. Predecessor has framed following issues :
1. Whether on 16/17.03.12 at about 3.45 am GTK Road in front of M2K near Azadpur terminal truck bearing registration no. JK13B4437 which was being driven rashly and negligently by Rafiq Ahmed hit Hemraj and caused his death? OPP
2. Whether petitioners are entitled to compensation, if so, to what amount and from whom?
3. Relief.
6. The petitioners/LR's of the deceased have examined Smt. Santosh (wife of the deceased) as PW1 and SI Sultan Singh (STA Transport, Rajpur Road, Delhi) who is an eye witness as PW2.
MACT No. 226/12 Santosh Vs. Rafiq Ahmad 5 of 30 6 As per record, Sh. Rafiq Ahmed/R1 and Farooq Ahmed Wani/R2 have also examined themselves as R1W1 and R2W1.
As per record, Bajaj Allianz General Insurance co./R3 has also examined three witnesses namely Sh. Ankit Jalan (Sr. Executive, Legal, Bajaj Allianz General Insurance co.) as R3W1, Sh. Jaiveer Singh also as R3W1 and Sh. Javed Iqbal, (Junior Assistant, ARTO Office, Poonch, J & K) as R3W2.
7. I have heard final arguments as advanced by Advocate Sh. Vaibhav, Ld. Counsel for the petitioners/LR's of deceased, Adv. Sh. Surender Soni ld counsel for R1 and R2 & Advocate Sh. Sanjay Kumar, Ld. Counsel for Bajaj Allianz General Insurance Company Ltd./R3. I have also gone through the material as placed on record. Now, I proceed to discuss the issues in the succeeding paragraphs.
8. Issue No.1 "Whether on 16/17.03.12 at about 3.45 am GTK Road in front of M2K near Azadpur terminal truck bearing registration no. JK13B4437 which was being driven MACT No. 226/12 Santosh Vs. Rafiq Ahmad 6 of 30 7 rashly and negligently by Rafiq Ahmed hit Hemraj and caused his death? OPP"
9. In the case in hand, SI Sultan Singh (STA Transport, Rajpur Road, Delhi), who is a material witness being an eye witness of the said accident is examined as PW2. He has interalia testified that on 17.03.2012, he along with the raiding team consisting of the deceased also was present at M2K Azadpur, Delhi on checking duty, during which they apprehended a truck bearing registration no. RJ05G4410 which was loaded with iron rods and after getting the said truck parked, while the deceased was coming back to the raiding team, suddenly the offending vehicle came from the side of Shakti Nagar, Delhi which was going to Azadpur which at the relevant time was driven by R1 in a rash and negligent manner and suddenly, R1 drove the offending vehicle on the wrong side without blowing horn and without taking due precautions due to which the offending vehicle struck against the deceased due to which he died at the spot itself.
He has further deposed that even thereafter, R1 did not stop the offending vehicle and he ran away from the spot MACT No. 226/12 Santosh Vs. Rafiq Ahmad 7 of 30 8 along with the offending vehicle. He has further testified that they chased the offending vehicle and succeeded in apprehending it at Azadpur and thereafter, R1 along with the offending vehicle was brought at the spot whose custody was handed over to the investigating officer. He has further deposed that the investigating officer also recorded his statement which is mark A whereupon FIR was registered which is Mark B. During his cross examination as conducted on behalf of R1 and R2, he has interalia stated that the deceased was a member of the said raiding team and their duty hours were from 10:00 am to 4:00 pm on next day. He has denied if R1 did not cause the said accident in the manner as deposed by him or if R1 was not driving the offending vehicle in a rash and negligent manner at the relevant time.
It is pertinent to discuss here that counsel for M/s Bajaj Allianz General Insurance co/R3 had also adopted the aforesaid cross examination of the said witness as conducted by R1 and R2.
After going through the entire testimony of PW2 who is the most material witness being an eye witness, there is MACT No. 226/12 Santosh Vs. Rafiq Ahmad 8 of 30 9 nothing on record to show if he has deposed falsely or if he did not witness the said accident of if he was not present at the spot at the relevant time. From the testimony of PW2, it is clearly shown on record that he has narrated about the said accident in the manner in which it would have taken place and though, he was cross examined at length by respondents however, nothing has come on record to disbelieve his version. As such, none of the respondents could show or place anything on record to show if PW2 has deposed falsely or if the said accident did not occur in the manner as testified by PW2 or if testimony of PW2 has suffered from any artificiality or exaggeration or inherent infirmity or that PW2 has not truthfully deposed about the manner in which the said accident occurred. In considered opinion of the court, he has deposed truthfully and has narrated the true account of the said accident in the manner as it occurred and in the given facts and circumstances, there is no reason to disbelieve the version of PW2 in as far as he has came forward with true account of said accident and his testimony does not seem to suffer from any artificiality or exaggeration or inherent infirmity and there MACT No. 226/12 Santosh Vs. Rafiq Ahmad 9 of 30 10 is nothing on record to show if R1 did not cause the said accident while driving the offending vehicle in a rash and negligent manner and caused the said accident in which the deceased sustained injuries and expired.
10. In the case in hand, Sh. Rafiq Ahmed/R1, who was the driver of the offending vehicle has also adduced his evidence by way of his affidavit Ex. R1W1/A wherein he has interalia deposed that at the relevant date, time and place, he along with R2 was going from Qutub Road to Sanjay Gandhi Transport Nagar, Delhi and he was driving the offending vehicle. He has further deposed that when they reached at Azadpur, suddenly the officials of transport department stopped him and asked about the documents of the offending vehicle and thereafter, R2 handed them over all the requisite documents but the said officials directed them to take UTurn and as per their directions, they along with offending vehicle reached at Golchakkar, Azadpur, Delhi after which one of the said officials, took the key of the offending vehicle and parked the said vehicle on wrong side at Azadpur. He has further deposed that thereafter, R2 asked the said official the reason for doing so, but the police officials in collusion MACT No. 226/12 Santosh Vs. Rafiq Ahmad 10 of 30 11 with transport official falsely impliacted R1. He was cross examined only on behalf of petitioners wherein he has interalia stated that though the said accident occurred in March, 2013 but he did not file any complaint with any higher officials regarding his false implication in the present case.
Further, Sh. Farooq Ahmed Wani/R2, who was the owner of the offending vehicle has also examined himself as R2W1 who has also adduced his evidence by way of his affidavit Ex. R2W1/A. It needs to be mentioned that contents of his affidavit are the same as per affidavit as furnished by R1 and hence, it is not repeated for the sake of brevity.
During his cross examination as conducted on behalf of petitioners, it is revealed that his cross examination was also on the lines of R1W1 and he has stated whatever R1 stated during his cross examination.
11. It needs to be mentioned that from the testimonies of R1 and R2, as such there is nothing on record even remotely to show that R1 did not cause the said accident in the manner as testified by SI Sultan Singh (PW2) or if R1 has been falsely implicated in the present case.
MACT No. 226/12 Santosh Vs. Rafiq Ahmad 11 of 30 12
12. Further, the certified copies of criminal case bearing FIR No.66/12 u/s 279/304A IPC P.S. Aadarsh Nagar, Delhi are also placed on record which was registered regarding the present accident/occurrence against R1 alongwith the copy of charge sheet u/s 173 Cr. PC which clearly show that R1 was prosecuted in the said case regarding causing the said accident and the offending vehicle was also seized. It is nowhere shown on record or even whispered that R1 had made any complaint to anyone regarding his false implication in the present case and has not alleged or submitted that he had any enmity with the deceased or with his family members or with the investigating officer and so, the possibility of his false implication in criminal case is ruled out. There is nothing on record to suggest even remotely that R1 did not cause the said accident in the manner as narrated by PW2.
13. It may also be discussed at this stage, that as per record, the certified copy of the postmortem examination report of the deceased is also filed on record which is nowhere challenged by any of the respondents. Though the concerned doctor, who had conducted the postmortem examination of the deceased is not MACT No. 226/12 Santosh Vs. Rafiq Ahmad 12 of 30 13 examined, however, it is observed in a catena of cases by the superior courts and is also well settled law that if it is otherwise proved as record that the accident had resulted in death of the deceased, then even non examination of the doctor who had conducted the postmortem examination does not adversely affect the case of petitioners.
It also needs to be noted that in the case of Reliance General Insurance Co. Ltd. v. Sushila Rathi & Ors. MAC. APP. 927/2012, as decided on 04.12.2012, the Hon'ble High Court has observed that "although postmortem examination was not conducted as the deceased died couple of months after the accident, yet from the medical record coupled with PW1's unchallenged testimony, it is established that the deceased died on account of injuries suffered in the accident". In the said case, Hon'ble High Court had considered the testimony of widow of deceased that the deceased succumbed due to the injuries suffered in the accident which was not challenged in the crossexamination. Further, in the case of New India Assurance MACT No. 226/12 Santosh Vs. Rafiq Ahmad 13 of 30 14 Company Ltd., Chennai v. R. Santhi and Others, 2013(1) T.A.C. 122 (Mad.), decided on 04.09.2012, the Hon'ble High Court has clearly laid down that merely because of non conducting of postmortem, the court cannot conclude that death was not due to road accident injury and it can be decided based on other relevant material brought before the court.
Further, in the case of Union of India & Another v. Bhola Rai, 2012(3) T.A.C. 546 (Gau.), decided on 02.03.2011, the Hon'ble High Court of Gauhati opined that there is nexus between the accident and the death of the deceased as the deceased was knocked down by the driver of the mini bus and he suffered serious injuries on his thigh bone as well as on hip bone and remained under treatment of several hospitals and died after about three years. It also held that the cause of death as linked to the injury sustained cannot be ruled out as the deceased was under prolonged medical treatment and had never resumed duty due to his said inability and laid down that there was causal connection, even though not immediate, between the accident and eventual death of the MACT No. 226/12 Santosh Vs. Rafiq Ahmad 14 of 30 15 deceased.
14. It also needs to be discussed even at the cost of repetition that in the case in hand, the postmortem examination of the deceased was conducted which is not disputed by any of the respondents and the copy of the postmortem examination report of the deceased is also placed on record which is not under challenge. It is also shown on record that the deceased had expired due to various injuries as sustained by him in the said accident as caused by R1 by driving the offending vehicle in a rash and/or negligent manner as already discussed at length earlier and accordingly, in the given facts and circumstances, in considered opinion of the court, non examination of the doctor who had conducted postmortem examination of the deceased is not fatal to the case of petitioners/LRs of deceased.
15. Accordingly, in view of the totality of the facts and circumstances of the case, on the basis of material placed on record and in view of above discussion, court is of the considered opinion that the said accident was caused by R1 while driving the offending vehicle in a rash and negligent manner resulting in injuries on the person of MACT No. 226/12 Santosh Vs. Rafiq Ahmad 15 of 30 16 deceased due to which he died and nothing is shown to the contrary, accordingly, Issue No. 1 is decided in favour of the petitioners/LR's of deceased and against the respondents.
16. Issue No.2 Qua Quantum of Compensation "Whether petitioners are entitled to compensation, if so, to what amount and from whom?"
As per record, the petitioner no.1 namely Smt. Santosh (who is the widow of deceased) has examined herself as PW1 and has testified by way of her affidavit Ex. PW1/A and has also relied upto various documents as Ex. PW1/1 to Ex PW1/6. She has interalia deposed that the deceased was working in Transport Department as a foot constable and was getting salary to the tune of Rs. 24,000/ per month. Further, as per record, detailed accident report/DAR has been filed by the investigating officer who has filed the verification salary slip of deceased for the month of February 2012 wherein the salary of deceased is shown as Rs. 18,285/ per month and the said document/salary record of the deceased is not disputed by any of the respondents.
Therefore, in the given facts and circumstances, court is MACT No. 226/12 Santosh Vs. Rafiq Ahmad 16 of 30 17 of the considered opinion that the deceased was getting Rs. 18,285/ per month.
Further, as per record the copy of election card of deceased is proved as Ex. PW1/3 wherein the age of deceased is shown as 24 years on 01.01.1994 and the said accident occurred on 16/17.03.2012, which documents are not in dispute by any of the respondents and so, as per said document, the deceased was 42 years old as on the date of said accident.
17. It would be pertinent to discuss that in the case of Rajesh & Others v. Rajbir Singh & Others 2013(6) SCALE 563, the deceased was around 33 years of age at the time of accident and was survived by his widow and minor children. He was working as a clerk in a Government School. The claims Tribunal had awarded total compensation of Rs. 8,96,500/. On appeal, Hon'ble High Court had enhanced the total compensation to Rs. 10,17,000/. On further appeal to Hon'ble Apex Court, total compensation was further enhanced to Rs. 22,81,320/. The Hon'ble Apex Court has observed that compensation under section 168 has to be "just, fair and equitable" to make good the loss suffered as a result MACT No. 226/12 Santosh Vs. Rafiq Ahmad 17 of 30 18 of the wrong as far as money can do.
18. The Hon'ble Apex Court referred to the case of Santosh Devi v. National Insurance Company Ltd. & Others 2012(4) SCALE 559 in which it was observed that even in absence of any evidence as to future prospects, an increase of 30% in the income has to be provided where the victim had fixed income or was a self employed person. Relevant extract of the order is as follows: "18. Therefore, we do not think that while making the observations in the last three lines of paragraph 24 of Sarla Verm's judgment, the Court had intended to lay down an absolute rule that there will be no addition in the income of a person who is selfemployed or who is paid fixed wages. Rather, it would be reasonable to say that a person who is selfemployed or is engaged on fixed wages will also get 30 per cent increase in his total income over a period of time and if he/she becomes victim of accident then the same formula deserves to be applied for calculating the amount of compensation."
However, to make compensation just fair and equitable, Hon'ble Apex Court has also observed that: MACT No. 226/12 Santosh Vs. Rafiq Ahmad 18 of 30 19
11. Since, the Court in Santosh Devi's case (supra) actually intended to follow the principle in the case of salaried persons as laid in Sarla Verma's case (supra) and to make it applicable also to the selfemployed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30% always; it will also have a reference to the age. In other words, in the case of selfemployed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an addition of 50% to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any. Addition should be 30% in case the deceased was in the age group of 40 to 50 years. In Sarla Verma's case (supra), it has been stated that in the case of those above 50 years, there shall be no addition. Having regard to the fact that in the case of those selfemployed or on fixed wages, where there is normally no age of superannuation, we are of the view that it will only be just and equitable to provide an addition of 15% in the case where the victim is between the age group of 50 to 60 years so as to make the compensation just, equitable, fair and MACT No. 226/12 Santosh Vs. Rafiq Ahmad 19 of 30 20 reasonable. There shall normally be no addition thereafter".
19. Accordingly, in the case in hand, in the given facts and circumstances, in view of observations of superior courts and on the basis of material as placed on record, in considered opinion of the court, the petitioners are entitled to addition of 30% in income of the deceased.
20. As per record, the deceased was 42 years old as on the date of the said accident which is not in dispute and therefore, the multiplier of '14' would be applicable in the case in hand as per observations made in the case of Sarla Verma & Ors. v. DTC & Anr. Civill Appeal No. 3483 of 2008
21. Deduction of amount towards personal and living expenses: As per record, the deceased was survived by his legal heirs i.e. his wife, two major sons and his father (who had also expired during the course of trial) and as such, 1/4 th of his income is to be deducted towards his personal and living expenses as per observations made in the case of Sarla Verma & Ors. v. DTC & Anr. Civill Appeal No. MACT No. 226/12 Santosh Vs. Rafiq Ahmad 20 of 30 21 3483 of 2008 (arising out of SLP (C) No.8648 of 2007) dated April 15, 2009.
22. Calculation Salary of the deceased: Rs.18,285/p.m. 30% future prospect towards inflation Rs.18,285 +Rs. 5,485/= 23,770/ Deduction of 1/4th as per observations in case of Sarla Verma Rs.23,7705,942/= 17,828/ p.m Thus, the loss of dependency comes to Rs.29,95,104/ (Rs. 17,828x14x12)
23. Now, regarding the amount of compensation payable towards funeral expenses, it needs to be discussed that it was observed in the case of Rajesh Vs. Rajbir Singh & Ors 2013 (6) SCALE that: "We may also take judicial notice of the fact that the Tribunals have been quite frugal with regard to award of compensation under the head 'Funeral Expenses". The 'Price Index', it is a fact has gone up in that regard also. The head 'Funeral Expenses' does not mean the fee paid in the crematorium or fee paid for the use of space in the cemetery. There are many other expenses MACT No. 226/12 Santosh Vs. Rafiq Ahmad 21 of 30 22 in connection with funeral and, if the deceased is follower of any particular religion, there are several religious practices and conventions pursuant to death in a family. All those are quite expensive. Therefore, we are of the view that it will be just, fair and equitable, under the head of 'Funeral Expenses', in the absence of evidence to the contrary for higher expenses, to award at least an amount of Rs. 25,000/."
Hence, in view of the above, in the case in hand, an amount of Rs. 25,000/ is granted towards funeral expenses of the deceased. Further, the petitioners are also entitled for an amount of Rs. 1,00,000/ towards loss of love and affection and Smt. Santosh, who is the widow of the deceased is also entitled for an amount of Rs. 1,00,000/ towards loss of consortium as per observations made in the case of Rajesh (Supra).
24. Now, so far as Loss of Estate is concerned, it needs to be discussed that in the case of Asha Verman & Ors Vs. Maharaj Singh & Ors Civil Appeal Nos. 32113212 of 2015 decided on 27.03.15, the Hon'ble Apex Court has granted loss of estate to the LRs of deceased to the tune of Rs. 1 lac and hence, in the case in hand, an MACT No. 226/12 Santosh Vs. Rafiq Ahmad 22 of 30 23 amount of Rs.1 lac is also granted as loss of Estate.
25. In view of above, the over all compensation amount comes to Rs.33,20,104/ and after deduction of interim award of Rs. 50,000/ it comes to Rs. 32,70,104/ which is tabulated as under: Sl. No Compensation under various Amount awarded heads
1. Loss of dependency Rs. 29,95,104/ 2 Loss of love & affection Rs. 1,00,000/
3. Funeral expenses Rs. 25,000/
4. Loss of estate Rs. 1,00,000/
5. Loss of Consortium Rs. 1,00,00/ Total Rs. 33,20,104/
26. In the case in hand, the Bajaj Allianz General Insurance company/R3 has contended that driver/R1 was not having valid driving licence to drive the offending vehicle at the relevant time and in this regard, Bajaj Allianz General Insurance co./R3 has also examined three witness namely Sh. Ankit Jalan, (Sr. Executive Legal, Bajaj Allianz General Insurance co.) as R3W1, ASI Jaiveer also as R3W1 and Sh. Javed Iabal, (Jr. Assistant, MACT No. 226/12 Santosh Vs. Rafiq Ahmad 23 of 30 24 ARTO Office, Poonch, J & K) as R3W2.
Sh. Ankit Jalan (R3W1) has deposed that the notice u/o XII rule 8 CPC was issued to R1 and R2 and proved it as Ex. R3W1/1, the postal receipts are proved as Ex. R3W1/2 & R3W1/3. He has also proved the verification report submitted by the IO in the DAR regarding the report of driving licence of R1 as Ex. R3W1/6 and proved the copy of chargesheet also filed u/s 3/181 M.V. Act as Ex. R3W1/7.
As per record, he was not cross examined by any of other respondents or by petitioners. It is nowhere disputed by R1 that said documents are forged and fabricated or that he possessed a valid driving licence to drive the offending vehicle at the relevant time. Accordingly, it remains admitted by R1 that he was not having valid driving licence to drive the offending vehicle at the time of said accident.
Further, Bajaj Allianz General Insurance co./R2 has also examined the Investigating Officer SI Jaiveer Singh as R3W1 who has deposed that the DAR and the annexed documents were verified by him.
As per record, he was also not cross examined on behalf MACT No. 226/12 Santosh Vs. Rafiq Ahmad 24 of 30 25 other respondents and they have not challenged the said DAR and the documents and their authenticity. Further, Bajaj Allianz General Insurance co/R3 has also examined Sh. Javed Iqbal, (Jr. Assistant, ARTO Office, Poonch) as R3W2 who had brought the original record mentioning the details of Heavy Driving Licence regarding Rafiq Ahmed Malik/R1 and proved the said record as Ex. R3W2/1.
He was cross examined on behalf of driver/R1 wherein he has stated that he has no personal knowledge of the record brought by him. He was not cross examined by any other respondents.
As per said record, it is shown that the driving licence of Rafiq Ahmad Malik/R1 was renewed on 16.04.2012 which was valid only till 05.04.2015. Admittedly, the said accident occurred on 17.03.2012 and hence, in the given facts and circumstances, the said driving licence of R1 was not valid as on the date of said accident i.e. on 17.03.2012.
27. It is not out of place to discuss here that in the case of Prem Kumari & Ors. Vs Prahlad Devi & Ors. II (2008) 477 (SC), the Hon'ble Apex Court has observed that even MACT No. 226/12 Santosh Vs. Rafiq Ahmad 25 of 30 26 if the driving license of driver of the offending vehicle is fake, still the insurer would continue to remain liable to pay the compensation amount to the petitioner/injured and the insurer is entitled to recover the said amount from the owner and the driver of offending vehicle as per procedure established by law as per rules.
28. In the present case, as already discussed at length, it is duly established on record that Sh. Rafiq Ahmad Malik/R1 was not having valid driving licence to drive the offending vehicle at the relevant time, yet the Bajaj Allianz General insurance company/R3 is under statutory obligation to pay the entire compensation amount to the petitioners/LR's of deceased and it can very well recover the said amount from the driver Sh. Rafiq Ahmad Malik/R1 and owner Sh. Farooq Ahmad Wani/R2 of the offending vehicle as per rules as per procedure established by law.
29. Accordingly, in the case in hand, The Bajaj Allianz General Insurance co. Ltd./R3 is directed to deposit with with the bank of petitioners/LR's of deceased as per details furnished by them within 30 days from today the awarded amount of Rs. 32,70,104/ alongwith interest at MACT No. 226/12 Santosh Vs. Rafiq Ahmad 26 of 30 27 the rate of 9 % per annum from the date of filing of the petition till notice of deposition of awarded amount to be given by Bajaj Allianz General Insurance co/R3 to the petitioners/LR's of deceased and their counsel and to show or deposit the receipt of the acknowledgement with the Nazir as per rules and recover the same from R1 and R2 as per procedure established by law.
30. I have heard LR's of the deceased and their advocate regarding their financial needs. In view of the submissions made and further in view of observations in the case of General Manager, Kerala State Road Transport Corporation Vs. Susamma Thomas & Others, 1994 (2) SC, 1631, following arrangements is hereby ordered: An amount of Rs.7,00,000/ each be given to petitioner nos. 2 & 3, namely Sh. Kapil, and Sh. Vasu who are the major sons of the deceased, out of which 20% each be released to each of them in cash as per rules in Savings bank a/c no. 0155000104342762 with Punjab National Bank, Bara Hindu Rao Branch, Delhi as maintained by Sh. Kapil (petitioner no.2) Savings bank a/c no. 50000011507 with Delhi Nagrik Sehkari Bank, Subzi MACT No. 226/12 Santosh Vs. Rafiq Ahmad 27 of 30 28 Mandi Branch, Delhi as maintained by Sh. Vasu (petitioner no. 3) and remaining amount be kept in FDRs in their respective names for a period of 1 year, 2 years, 3 years, 4 years and 5 years in equal proportions with their respective banks.
Further, remaining amount be given to petitioner no.1 namely Smt. Santosh who is the wife of deceased, out of which 20% from her share be released to her in cash as per rules in her Savings bank a/c no. 0155000300440710 with Punjab National Bank, Bara Hindu Rao Branch, Delhi and remaining be kept in FDRs in her name for a period of 1 year, 2 years, 3 years, 4 years and 5 years in equal proportions with Punjab National Bank, Bara Hindu Rao Branch, Delhi.
31. It is further directed that the interest on the aforesaid fixed deposits shall be paid monthly by automatic credit of interest in the Saving Accounts of the petitioners/LR's of deceased as per rules as per details furnished by him.
Further, Original fixed deposit receipts be retained by the said bank in it safe custody, however, passbooks of the said FDRs be given to the claimant(s)/petitioners/LR's MACT No. 226/12 Santosh Vs. Rafiq Ahmad 28 of 30 29 of deceased along with the photocopies of the FDRs. Further, at the time of maturity of FDRs, the fixed deposit amount shall be automatically credited in the savings bank account of the claimants/petitioners/LR's of deceased.
Further, no cheque books be issued to the claimants/petitioners/LR's of deceased without permission of the court, however, a photo identity cards be issued to the claimants and the withdrawal be permitted upon production of the identity card(s).
Further, the petitioners/claimants shall not have any facility of loan or advance or withdrawal without permissions of the court.
Further, the said bank shall not permit any joint name(s) to be added in the saving bank account of fixed deposit accounts of the claimants/petitioners. Further, half yearly statement of account be filed by the said bank in the Tribunal as per rules.
MACT No. 226/12 Santosh Vs. Rafiq Ahmad 29 of 30 30
32. The petition/DAR is accordingly finally disposed of. File be consigned to record room as per rules after compliance of necessary legal formalities. Copy of order be given to parties for necessary compliance as per rules.
(Barkha Gupta) Announced in the open Court Judge MACT/NW District today i.e.21.04. 2017 Rohini Courts, Delhi MACT No. 226/12 Santosh Vs. Rafiq Ahmad 30 of 30