Delhi District Court
Sh. Deepak vs Sh. Dinesh Kumar on 14 September, 2018
MACP No. 5623/16; FIR No. 1602/14; PS. Narela DOD: 14.09.2018
IN THE COURT OF SHRI VIDYA PRAKASH, PRESIDING OFFICER,
MOTOR ACCIDENT CLAIMS TRIBUNAL, ROHINI COURTS, DELHI
MAC Petition No. 5623/16 (Old MACP No. 172/15)
Sh. Deepak,
S/o Sh. Sunder Singh,
R/o Gali No. 9, Gautam Colony,
Narela, Delhi ..........Petitioner
VERSUS
1. Sh. Dinesh Kumar,
S/o Sh. Krishan Kumar,
R/o. H.No. 67,
Gali Hari Narayan Mandir,
Pana Paposiyan,
Narela, Delhi (Driver)
2. Sh. Rahul,
S/o Sh. Mohinder Singh,
R/o H.No. 1410,
Near M.C. Primary School,
Pana Paposiyan,
Narela, Delhi (Registered Owner)
3. National Insurance Company Ltd.
M2K, Rohini,
Delhi (Insurer)
............Respondents
Date of Institution : 16.03.2015 Date of Arguments : 30.08.2018 Date of Award : 14.09.2018 APPEARANCES: Sh. Aijaz Ahmed, adv for petitioner.
None for respondents no. 1 & 2.
Sh. S. Ghosh, Adv for respondent no. 3.
Deepak Vs. Dinesh Kumar & Ors. Page 1 of 20MACP No. 5623/16; FIR No. 1602/14; PS. Narela DOD: 14.09.2018 Petition under Section 166 and 140 of M.V. Act, 1988 for grant of compensation AWARD
1. The petitioner is seeking compensation in the wake of Detailed Accident Report (DAR) filed by police corresponding to the investigation carried out in case FIR No. 1602/14 U/s 279/337 IPC registered at PS. Narela with regard to Motor Vehicular Accident which occurred on 08.12.2014 at 10:45 pm at road leading from Singhu Border Road to Sector A6 Mor, Delhi, involving Car bearing registration no. HR99TVTP6262 (alleged offending vehicle) being driven by respondent no. 1 in rash and negligent manner. Detailed Accident Report (hereinafter called DAR) filed by police, was treated as claim petition under Section 166(4) of Motor Vehicles Act, 1988 (hereinafter referred to as 'MV Act').
2. According to DAR, on 08.12.2014 at about 10:45 pm, the petitioner alongwith Rahul was returning on their motorcycle. The said motorcycle was being driven by him. When they reached near Sector A6 Mor, Singhu Border Road, Delhi, one car bearing registration no. HR99TVTP 6262 which was being driven by its driver at very high speed and in rash and negligent manner, came and tried to overtake the aforesaid motorcycle. In that process, it hit the aforesaid motorcycle. As a result thereof, he fell down on the road and sustained grievous injuries in his right leg, right thigh with swelling in right hand, left eyebrow, arm and head. He was removed to SRHC Hospital, Narela, Delhi, where he was medically examined vide MLC No. 4027/14. The aforesaid vehicle i.e. Car was found to be owned by respondent no. 2 and it was insured with National Insurance Company Ltd./respondent no. 3 during the period in question.
3. In their joint WS, the respondents no. 1 & 2 i.e. driver and registered owner have claimed that the alleged accident was not caused by the respondent no. 1. They further claimed that the respondent no. 1 was Deepak Vs. Dinesh Kumar & Ors. Page 2 of 20 MACP No. 5623/16; FIR No. 1602/14; PS. Narela DOD: 14.09.2018 having valid DL at the time of accident. Alternatively, they have claimed that the aforesaid car was insured with respondent no. 3 at the time of accident in question. They have simply denied the averments made in the DAR petition and have prayed for its dismissal.
4. Respondent no. 3/insurance company has raised statutory defence as provided in Section 149(2) M.V. Act. It has claimed that the offending vehicle i.e. Santro Car having Engine No. G4HGEM826635 and Chasis No. MALAA51HLEM849215 did not have any valid registration certificate at the time of accident and it was being driven at public place in violation of the terms and conditions the insurance policy. It has further claimed that the said vehicle was having Temporary Registration Certificate No. HR99TVTP6262 in the record of Registration Authority but the validity of said temporary number had already expired much prior to the date of accident in question. However, it has admitted that the said vehicle was duly insured vide private car package policy with it in the name of respondent no. 2 from 30.10.14 to 29.10.15.
5. From pleadings of the parties, the following issues were framed by my Ld Predecessor vide order dated 10.11.2015:
1. Whether the injured Deepak suffered injuries in road traffic accident on 08.12.2014 at about 10:45 pm on the road from Singhu Border to Sector A6, Delhi, within the jurisdiction of PS. Narela due to rashness and negligence on the part of Dinesh Kumar who was driving Car bearing registration no.
HR99TVTP6262, owned by Rahul and insured with National Insurance Co. Ltd.?OPP.
2. Whether the injured is entitled to any compensation if so to what amount and from whom?
OPP.
3. Relief.
Deepak Vs. Dinesh Kumar & Ors. Page 3 of 20MACP No. 5623/16; FIR No. 1602/14; PS. Narela DOD: 14.09.2018
6. In support of his claim, the petitioner has examined four witnesses i.e. himself as PW1, PW2 HC Pawan, PW3 Dr. Naveen Kumar, CMO, BSA Hospital and PW4 Dr. Mukesh Aggarwal of Dr. Mukesh Orthopedic Trauma Centre, Narela, Delhi. He closed his evidence on 16.05.2017 through his counsel. On the other hand, the respondents no. 1 & 2 did not adduce any evidence. However, respondent no. 3/insurance company has examined two witnesses i.e. Sh. Vineet Kumar, Assistant, National Insurance Company Ltd. as R3W1 and Sh. Des Raj, Assistant, from the office of Registering Authority, Motor Vehicles Department, Chandigarh as R3W2 and closed its evidence on 20.02.18 through its counsel.
7. I have already heard the arguments addressed by ld counsels for the parties. I have also gone through the record. Both the sides were directed to submit their respective submissions in Form IV B but they have not submitted the same on record. My findings on the issues are as under: ISSUE NO. 1.
8. For the purpose of this issue, the testimony of PW1 Sh. Deepak (injured himself) is relevant. In his evidence by way of affidavit (Ex. PW1/A), he deposed on the lines of averments made in the DAR petition that on 08.12.2017 at about 10:45 pm, he alongwith Rahul was returning on their motorcycle. The said motorcycle was being driven by him. When they reached near Sector A6 Mor, Singhu Border Road, Delhi, one car bearing registration no. HR99TVTP6262 which was being driven by its driver at very high speed and in rash and negligent manner, came and tried to overtake the aforesaid motorcycle and in that process, it hit their motorcycle. As a result thereof, he fell down on the road and sustained grievous injuries on his right leg, right thigh with swelling in right hand, left eyebrow, arm and head. He was removed to SRHC Hospital, Narela, Delhi, where he was medically examined vide MLC Deepak Vs. Dinesh Kumar & Ors. Page 4 of 20 MACP No. 5623/16; FIR No. 1602/14; PS. Narela DOD: 14.09.2018 No. 4027/14. He has relied upon the following documents: S.No. Description of documents Remarks
1. Medical treatment record and bills Ex. PW1/1(colly) 2. Copy of MLC Ex. PW1/2 3. Copy of FIR Ex. PW1/3
4. Copies of his PAN Card and Mark Aadhaar Card PW1/4(colly)
5. ITRs for the Financial Years 2013 Ex. PW1/5(colly) 14 and 201415
6. Additional medical bills Ex. PW1/6(colly)
7. Copy of DAR Ex. PW1/7(colly)
9. During his cross examination on behalf of insurance company, he deposed that the motorcycle no. DL8SBH6924 on which he was riding, was registered in the name of his father namely Sh. Sunder Singh at the time of accident. He denied the suggestion that he did not have DL to drive motorcycle at the time of accident. He admitted that the accident occurred at the crossing. He denied the suggestion that the accident was caused due to his negligence. He further denied the suggestion that he could not note down the registration number of the offending vehicle. Respondents no. 1 & 2 did not crossexamine this witness, despite grant of opportunity.
10. It is evident from the testimony of PW1 that the respondents, more particularly insurance company, could not impeach his testimony through litmus test of crossexamination and said witness is found to have successfully withstood the test of crossexamination. Even otherwise, PW1 himself is the injured having sustained injuries due to the accident in question. There is no reason as to why he would depose falsely against respondent no.1. This is more so when the respondents have not led any evidence to controvert the case of petitioner as proved by him during the course of inquiry. Moreover, it is an undisputed fact that FIR No. 1602/14 u/s 279/337 IPC was registered at PS. Narela with regard to accident in question. Copy of said FIR (Ex. PW1/3 Deepak Vs. Dinesh Kumar & Ors. Page 5 of 20 MACP No. 5623/16; FIR No. 1602/14; PS. Narela DOD: 14.09.2018 colly), would show that same was registered on 09.12.14 on the basis of DD Entry No. 53A dt. 08.12.14 with regard to accident call received in PS. Narela on 08.12.14. The contents of said FIR would show that Car bearing registration no. HR99TVTP6262 and motorcycle bearing registration no. DL8SBH6924 were found lying in accidental condition at the spot, when HC Pawan had visited the spot on receipt of said DD No. 53A.
11. 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 contest the present case and to stay away from the proceedings. 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. HR99TVTP6262 by him.
12. Moreover, copy of FIR (Ex. PW1/3 colly), would show that same was registered on 09.12.2014 (accident being caused on 08.12.14 at about 22:45 hrs). Thus, the FIR was registered promptly and without there being any delay. Hence, there is no possibility of false implication of respondent no. 1 and/or false involvement of Car vehicle bearing no. HR99TVTP6262 at the instance of petitioner herein.
13. Not only this, the respondent no. 1 namely Dinesh Kumar (accused in State case) has been charge sheeted for offences punishable U/s 279/338/482 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. HR99TVTP6262 by him. Same would also point out towards rash and negligent driving of Car no. HR99TVTP6262 by respondent no. 1.
Deepak Vs. Dinesh Kumar & Ors. Page 6 of 20MACP No. 5623/16; FIR No. 1602/14; PS. Narela DOD: 14.09.2018
14. Apart from above, copy of MLC (Ex. PW1/2) of injured prepared at SRHC Hospital, Narela, Delhi, shows that he had been removed to said hospital on 08.12.2014 at 11:00 PM with alleged history of RTA. Further, PW3 Dr. Naveen Kumar, CMO, BSA Hospital, testified that MLC bearing no. 4027, which bears his signature at point A, was issued by SRHC Hospital. He further deposed that on local examination, patient Deepak was found to have deformity on right wrist and left ankle. He further deposed that there were also lacerated wounds near right eyebrow, right thigh(with swelling) and multiple abrasions on both foot. He also deposed that only preliminary treatment was given and patient was advised XRay, however, he left the hospital against medical advise before Xray could be conducted. During his crossexamination on behalf of insurance company, he deposed that he had not brought any record of MLC from the hospital. He volunteered that he had been transferred from SRHC Hospital in the month April, 2015. He also deposed that he had personally examined the said patient and MLC was prepared by him. He further deposed that he could not comment on the nature of injuries as the patient did not go for radiological examination at SRHC Hospital. He deposed that the patient did not incur any expeses at SRHC Hospital.
15. Not only this, copy of mechanical inspection report dated 15.12.2014 (which is part of DAR Ex. PW1/7 colly) of Santro Car No. HR99 TVTP6262, would show that vehicle's front side portion which was damaged, was found freshly repaired; its front bumper and bonnet and grill were found missing and its both headlights were also found missing. Likewise, copy of mechanical inspection report dated 15.12.14 of Motorcycle No. DL8SBH6924 of victim, would show that its front wheel mudguard was damaged and rim was bended; its front both shockers were bended and broken; its headlight and indicator light and electric wiring were damaged; its handle system was damaged; its right side legguard and brake lever were damaged; its right side cover and battery were damaged and its engine system was damaged. Said reports, which have gone unchallenged and unrebutted from the side of Deepak Vs. Dinesh Kumar & Ors. Page 7 of 20 MACP No. 5623/16; FIR No. 1602/14; PS. Narela DOD: 14.09.2018 respondents, also corroborate the ocular testimony of PW1 Sh. Deepak to the aforesaid extent.
16. Moreover, in response to notice U/s 133 M.V Act (which is part of DAR Ex. PW1/7 colly) served upon respondent no. 2 i.e. regd owner of Car bearing no. HR99TVTP6262, he gave written reply that said vehicle was being driven by his driver namely Sh. Dinesh (R1) on 08.12.14. Same would also corroborate the testimony of PW1 Sh. Deepak to the extent that the aforesaid vehicle was being driven by respondent no. 1 at the time of accident.
17. In view of the aforesaid discussion and the evidence which has come on record, it is held that the petitioner has been able to prove on the basis of pre ponderence of probabilities that he had sustained grievous injuries in road accident which took place on 08.12.2014 at 10:45 pm at road leading from Singhu Border Road to Sector A6 Mor, Delhi, due to rash and negligent driving of Car bearing no. HR99TVTP6262 by respondent no. 1. Thus, issue no. 1 is decided in favour of petitioner and against the respondents.
ISSUE NO. 218. Section 168 of the Act enjoins the Claims Tribunal to hold an inquiry into the claim to make an award determining the amount of compensation which appears to it to be just and reasonable. It has to be borne in mind that the compensation is not expected to be a windfall or a bonanza nor it should be niggardly.
MEDICAL EXPENSES
19. PW1 Sh. Deepak i.e. injured himself, has deposed in his evidence by way of affidavit(Ex. PW1/A) that after the accident, he was taken to SRHC Hospital, Narela, Delhi, where he was medically examined vide MLC No. Deepak Vs. Dinesh Kumar & Ors. Page 8 of 20 MACP No. 5623/16; FIR No. 1602/14; PS. Narela DOD: 14.09.2018 4027/14. He further deposed that he received grievous injuries in his right leg, right thigh with swelling in right hand, left eyebrow, arm and head. He deposed to have spent more than Rs. 1,14,448/ on his treatment. During his cross examination on behalf of respondent no. 3, he denied the suggestion that the bills and treatment record filed by him, are false and fabricated. He admitted that he had not filed the treatment record or the prescription in support of bills Ex. PW1/6. He further denied the suggestion that he had not spent more than Rs. 1,14,448/ on his treatment. He was not crossexamined by respondents no. 1 & 2 despite grant of opportunity. The petitioner/injured has filed medical bills to the tune of Rs. 1,04,648/only.
20. The ocular testimony of PW1 stands corroborated from the testimony of PW4 Dr. Mukesh Aggarwal and the relevant documents produced on record by him. Dr. Mukesh Aggarwal is owner of Dr. Mukesh Orthopedic Trauma Centre, Narela, Delhi, wherefrom injured had received his medical treatment for the injuries sustained in the accident in question. He produced discharge slip as well as that of medical bills in respect of injured, which were exhibited as Ex. PW1/1(colly) and Ex. PW1/6(colly). He deposed that the discharge slip was duly signed by him at point A and medical bills were issued by his staff namely Sh. Sanjay Kumar. During his crossexamination on behalf of insurance company, he deposed that the patient Deepak had not produced MLC of any government hospital before him on 09.12.2014. He volunteered that the patient had verbally told him that he had sustained the injuries in the accident. He further deposed that the medical condition of the patient was satisfactory at the time of his discharge on 14.12.14. The patient was advised to visit the hospital for his dressing as mentioned in the discharge slip (Ex. PW1/1). He denied the suggestion that the medical bills have been fabricated by his hospital in connivance with injured Deepak Kumar.
21. It is quite evident that the respondents have not disputed the authenticity and genuineness of the said medical bills during the course of Deepak Vs. Dinesh Kumar & Ors. Page 9 of 20 MACP No. 5623/16; FIR No. 1602/14; PS. Narela DOD: 14.09.2018 inquiry. Moreover, the respondents, more particularly insurance company, have failed to lead any evidence in rebuttal in order to create any doubt on the authenticity of the medical bills of the injured as available on record. Accordingly, a sum of Rs. 1,04,648/ is awarded to the petitioner under this head.
LOSS OF INCOME
22. Injured namely Sh. Deepak (PW1) has categorically deposed in his evidence by way of affidavit(Ex PW1/A) that he was aged about 23 years; he was doing his business and was earning Rs. 20,000/ per month at the time of accident. During his crossexamination on behalf of respondent no. 3, he deposed that he had appeared for final year examination of graduation, however he had not brought any document in support of the same on that day. He denied the suggestion that he was illiterate. He deposed that the business he was doing, was in the joint name of his father and himself. He admitted that he had not filed any document other than his ITRs to show that he was running the business of readymade garments, sports wear, shoes and accessories. He further admitted that he had not filed his bank statement. He denied the suggestion that ITRs acknowledgment and computation of income( Ex. PW1/5) filed by him are false and fabricated. He admitted that his ITRs for Assessment Years 201314 and 201415 had been filed on 14.02.15 and 18.02.15 respectively. He further admitted that same were filed after the date of accident i.e. 08.12.14. He denied the suggestion that he was not earning Rs. 25,000/ per month. He was not crossexamined by respondents no. 1 & 2 despite grant of opportunity.
23. It is pertinent to note that the petitioner has relied upon his medical treatment record and the medical bills in order to prove the nature of injuries sustained by him and the period till which his treatment continued. The said documents are Ex. PW1/1(colly) & Ex. PW1/6(colly) respectively. The discharge summary( which is part of Ex. PW1/1 colly) of Dr. Mukesh Deepak Vs. Dinesh Kumar & Ors. Page 10 of 20 MACP No. 5623/16; FIR No. 1602/14; PS. Narela DOD: 14.09.2018 Orthopedic & Trauma Centre in respect of petitioner/injured would reveal that he remained admitted in the said hospital from 09.12.2014 till 14.12.2014. He is shown to have sustained open fracture of right shaft femur and said part of his testimony has gone uncontroverted from the side of respondents. Considering the nature of injuries sustained by the petitioner and in view of ocular testimony of PW1, it is presumed that he would not have been able to work at all atleast for a period of 4 months or so.
24. During the course of arguments, counsel for petitioner/injured vehemently argued that petitioner was having net annual income of Rs. 2,42,420/ at the time of accident. For said purpose, he relied upon ITRs (Ex. PW1/5 colly) filed on record. He, therefore, urged that appropriate amount of compensation may be awarded on the basis of said ITRs. Per contra, counsel for insurance company argued that said ITRs should not be taken into consideration as it was filed by injured only after the date of accident by inflating his annual income on higher side in order to support his false claim.
25. The perusal of ITRs (Ex. PW1/5 colly) as available on record, would show that same was filed by petitioner/injured with Income Tax Department on 14.02.2015 for the Assessment Year 201314 and on 18.02.15 for the Assessment Year 201415. The date of accident is 08.12.2014. Thus, it is an undisputed fact that the injured had filed the aforesaid ITRs much after the date of accident. Hence, I find substance in the argument raised on behalf of insurance company that said ITRs can not be considered to assess the loss of income under this head. It is nowhere the case of injured that he had filed any other ITR for any other previous assessment year with IT Department. Thus, for want of any cogent evidence with regard to monthly income of injured/petitioner, his income has to be assessed as per Minimum Wages Act applicable during the relevant period. The petitioner has not filed any document in respect to his educational qualification. In these circumstances, the minimum wages of an unskilled worker under Minimum Wages Act during Deepak Vs. Dinesh Kumar & Ors. Page 11 of 20 MACP No. 5623/16; FIR No. 1602/14; PS. Narela DOD: 14.09.2018 the period in question, has to be taken into consideration. The minimum wages of an unskilled worker were Rs. 8,632/ per month as on the date of accident which is 08.12.2014. Thus, a sum of Rs. 34,528/ (Rs. 8,632/ x 4) is awarded in favour of petitioner under this head and against the respondents.
PAIN AND SUFFERING
26. 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 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".
27. Injured himself as PW1 has deposed in his evidence by way of affidavit(Ex PW1/A) that he had sustained grievous injuries in his right leg, right thigh with swelling in right hand, left eyebrow, arm and head. However, PW4 Dr. Mukesh Aggarwal who had treated the injured, has deposed in his evidence that the injured had suffered collies fracture of shaft femur right and he had done intramedullary nailing with regard to fracture of shaft femur during the course of treatment. He further deposed that said patient remained admitted in his hospital from 09.12.2014 to 14.12.2014. Thus, injured 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 and the nature of injuries suffered by him, I hereby award a sum of Rs. 50,000/ towards pain and sufferings to the petitioner.
Deepak Vs. Dinesh Kumar & Ors. Page 12 of 20MACP No. 5623/16; FIR No. 1602/14; PS. Narela DOD: 14.09.2018 LOSS OF GENERAL AMENITIES & ENJOYMENT OF LIFE
28. As already mentioned above, there is sufficient evidence on record to establish that the petitioner had suffered collies fracture of shaft femur right. 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 including permanent disability 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
29. Although, the petitioner/injured as PW1 has deposed that he had spent considerable amount on special diet and conveyance, etc 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 collies fracture of shaft femur right. 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.
Thus, t he total compensation is assessed as under:
1. Medical Expenses Rs. 1,04,648/
2. Loss of income Rs. 34,528/
3. Pain and suffering Rs. 50,000/ Deepak Vs. Dinesh Kumar & Ors. Page 13 of 20 MACP No. 5623/16; FIR No. 1602/14; PS. Narela DOD: 14.09.2018
4. Loss of general amenities and Rs. 25,000/ enjoyment of life
5. Conveyance, special diet and Rs. 25,000/ attendant charges Total Rs. 2,39,176/ Rounded off to Rs. 2,40,000/
30. This brings me down to the next question as to who, out of the respondents, is liable to pay the compensation amount so assessed herein above. Ld counsel for insurance company vehemently argued that Registration Certificate of the offending Santro Car having Temporary No. HR99TVTP6262 had already expired prior to the date of accident and there was no valid registration certificate in respect of said vehicle as on the date of accident, which constitutes fundamental breach in the terms and conditions of insurance policy on the part of insured. Thus, insurance company is not liable to pay the compensation amount. Alternatively, he urged that the insurance company is atleast entitled to recovery rights against driver and registered owner of the said car. For the said purpose, Ld counsel heavily relied upon the testimonies of R3W1 Mr. Vineet Kumar, Assistant, National Insurance Company Ltd. and R3W2 Sh. Des Raj from the office of Registering Authority, Motor Vehicles Department, Chandigarh, Haryana.
31. In order to appreciate the aforesaid contentions raised on behalf of insurance company, it would be appropriate to discuss the testimonies of R3W1 and R3W2 examined on its behalf during the course of inquiry. R3W1 Sh. Vineet Kumar, Assistant, National Insurance Company Limited has deposed in his evidence by way of affidavit Ex. R3W1/A that insurance policy no. 421500/31/14/6100002631, valid for the period from 30.10.14 to 29.10.15, was issued by their company in the private car package policy category to insure Hyundai Santro Car, in the name of Rahul S/o Sh. Mahender Singh i.e. respondent no. 2. He further deposed that as per the contents of DAR, the Deepak Vs. Dinesh Kumar & Ors. Page 14 of 20 MACP No. 5623/16; FIR No. 1602/14; PS. Narela DOD: 14.09.2018 said car was being driven at the time of accident by its driver with false temporary registration certificate bearing no. HR99TP2359, whereas the said vehicle had been allotted the temporary registration certificate No. HR99TV TP6262 by Registering Authority, Chandigarh, Haryana. He further deposed that despite service of notice u/o 12 Rule 8 CPC(Ex. R3W1/1) dispatched vide postal receipts Ex. R3W1/2 and R3W1/3, the driver and registered owner failed to produce valid RC and same shows that there was no valid RC in favour of R2 as on the date of accident. He also exhibited copy of insurance policy of aforesaid car as Ex. R3W1/4. Respondents no. 1 & 2 did not cross examine this witness despite grant of opportunity.
32. R3W2, who is the official from the office of Registering Authority, Chandigarh, produced the relevant record with regard to issuance of Temporary Registration Numbers of vehicles to the various dealers of motor vehicles in the State of Haryana. He deposed that as per said record, 400 temporary registration numbers bearing serial no. HR99TV(Temp) 6142 to 6541 were issued to Dealer namely M/s. Rahul Pam Pvt. Ltd, Karnal, Haryana. He further deposed that as per the record of relevant dealer, Temporary Registration Certificate no. HR99TVTP6262 was issued for the period from 30.10.14 to 29.11.14. He further deposed that thereafter, no application for issuance of permanent RC against the said Temporary RC Number was submitted with their Authority. He also deposed that as per rules of the Authority, if any temporary RC holder applies for issuance of permanent RC after the expiry of the period of validity of temporary RC, he would be liable to deposit penalty and the permanent RC which would be issued to him/her, shall have the validity from the date of said application and not from the date of issuance of temporary RC. He exhibited the copy of extract of relevant page of register containing entry regarding issuance of aforesid temporary registration number to concerned dealer namely M/s. Rahul Pam Pvt. Ltd., Karnal, Haryana as Ex. R3W2/1. He has also not been crossexamined by driver and registered owner despite grant of opportunity.
Deepak Vs. Dinesh Kumar & Ors. Page 15 of 20MACP No. 5623/16; FIR No. 1602/14; PS. Narela DOD: 14.09.2018
33. The factual position which emerges from the aforesaid discussion is that the offending car was having actual temporary registration number as HR99TVTP6262. In view of the testimony of R3W2, the said temporary number was vaild from 30.10.14 to 29.11.14. It is also established from the testimony of R3W2 that RC holder did not apply for issuance of permanent RC in their office as per record available with them. In other words, it is proved on record that the aforesaid offending car did not have any valid Registration Certificate as on the date of accident which is 08.12.14.
34. At this juncture, it would be relevant to reproduce the provisions contained in Section 39 & 43 of M.V. Act, which read as under: "39. Necessity for registration No person shall drive any motor vehicle and no owner of a motor vehicle shall cause or permit the vehicle to be driven in any public place or in any other place unless the vehicle is registered in accordance with this Chapter and the certificate of registration of the vehicle has not been suspended or cancelled and the vehicle carries a registration mark displayed in the prescribed manner:
Provided that nothing in this section shall apply to a motor vehicle in possession of a dealer subject to such conditions as may be prescribed by the Central Government.
"43. Temporary registration(1) Notwithstanding anything contained in section 40 the owner of a motor vehicle may apply to any registering authority or other prescribed authority to have the vehicle temporarily registered in the prescribed manner and for the issue in the prescribed manner of a temporary certificate of registration and a temporary registration mark."
(2) A registration made under this section shall be valid only for a period not exceeding one month, and shall not be renewable:
Provided that where a motor vehicle so registered is a chasis to which a body has not been attached and the same is detained in a workshop beyond the said period of one month for being fitted with a body or any unforeseen Deepak Vs. Dinesh Kumar & Ors. Page 16 of 20 MACP No. 5623/16; FIR No. 1602/14; PS. Narela DOD: 14.09.2018 circumstances beyond the control of the owner, the period may, on payment of such fees, if any, as may be prescribed, be extended by such further period or periods as the registering authority or other prescribed authority, as the case may be, may allow.
(3) In a case where the motor vehicle is held under hire purchase agreement, lease or hypothecation, the registering authority or other prescribed authority shall issue a temporary certificate of registration of such vehicle, which shall incorporate legibly and prominently the full name and the address of the person with whom such agreement has been entered into by the owner".
35. A bare perusal of the aforesaid provisions would clearly show that no person shall drive the motor vehicle in any public place without any valid registration granted by the Registering Authority in accordance of the provisions of M.V. Act. As per mandate of Section 43(supra), the owner of vehicle may apply to Registering Authority for temporary registration and temporary registration mark. If such temporary registration is granted by the Authority, same shall be valid only for a period of one month. As per proviso appended below Section 43, it is quite crystal clear that the period of one month may be extended for such further period by the Registering Authority only in a case where temporary registration is granted in respect of chasis to which body has not been attached and same is detained in a workshop beyond the said period of one month for being fitted with a body or due to some other unforeseen circumstances beyond the control of the owner.
36. Now turning back to the facts of the present case. As already noted above, the accident in question took place on 08.12.14 and the temporary registration granted in respect of offending car had already expired on 29.11.14. Hence, the said offending car was being used on public road without any registration and it constitutes a fundamental breach in the terms and conditions of insurance policy on the part of insured i.e. respondent no. 2. Thus, insurance company is held liable to pay the awarded amount to protect Deepak Vs. Dinesh Kumar & Ors. Page 17 of 20 MACP No. 5623/16; FIR No. 1602/14; PS. Narela DOD: 14.09.2018 third party interest at the first instance and thereafter, it shall be entitled to recover the said amount from the insured. While saying so, I am fortified by the unreported decision of Hon'ble Apex Court in the case titled as "Narinder Singh Vs. New India Assurance Company Limited & Ors.", Civil Appeal No. 8463/14, decided on 04.09.14 and decisions of Hon'ble Punjab & Haryana Court as well as of Hon'ble Himachal Pradesh High Court reported at 2015 ACJ 550(P&H) and 2016 ACJ 1432 respectively. Accordingly, insurance company is granted recovery rights against the respondent no. 2. (Reliance placed on decision dated 26.09.2017 in FAO no.7555/2015 in the matter titled as "MS Middle High School and another Vs. Usha and others" by Hon'ble High Court of Punjab and Haryana and as upheld by Hon'ble Apex Court in SLP no.31406/2017 titled as "MS Middle High School Vs. HDFC ERGO General Insurance Company Ltd. & others" decided on 22.11.2017). Issue no. 2 is decided accordingly.
ISSUE NO. 3 RELIEF
37. In view of my findings on issues no. 1 and 2, I award compensation of Rs. 2,40,000/ alongwith interest @ 9% per annum in favour of petitioner and against the respondents w.e.f. date of filing of the petition i.e. 16.03.15 till the date of its realization (Reliance placed on judgment "Oriental Insurance Company Ltd. Vs. Sangeeta Devi & Ors bearing MAC. APP. 165/2011 decided on 22.02.2016). However, it would be open to the insurance company to recover the award amount from respondent no. 2 after payment of compensation amount, in accordance with law. Issue no. 3 is decided accordingly.
APPORTIONMENT
38. Statement of petitioner in terms of Clause 27 MCTAP was recorded on 10.05.2018. Having regard to the facts and circumstances of the case and in view of the said statement, it is hereby ordered that out of the Deepak Vs. Dinesh Kumar & Ors. Page 18 of 20 MACP No. 5623/16; FIR No. 1602/14; PS. Narela DOD: 14.09.2018 award amount, a sum of Rs. 1,05,000/ (Rupees One Lakh and Five thousand Only)(since a sum of Rs. 1,04,648/ has already been spent by injured on his treatment) shall be immediately released to the petitioner through his saving bank account no. 2983101009379 with Canara Bank, Arya Samaj Road, Narela, Delhi, having IFSC Code CNRB0002983 and remaining amount alongwith interest amount 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.
39. 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 claimant/petitioner. At the time of maturity, the fixed deposit amount shall be automatically credited in the savings bank accounts of the Claimant/petitioner.
(ii) No cheque book/Debit Card be issued to the claimants/petitioners without permission of the Court.
(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.
40. During the course of hearing final arguments, claimant was asked as to whether he was entitled to exemption from deduction of TDS or not. He stated on oath that he was not entitled to exemption from deduction of TDS as his gross annual income exceed the prescribed limit of income attracting income tax during the financial year, as per relevant provisions of Income Tax Act.
Deepak Vs. Dinesh Kumar & Ors. Page 19 of 20MACP No. 5623/16; FIR No. 1602/14; PS. Narela DOD: 14.09.2018
41. Respondent no. 3, being insurer of offending vehicle is directed to deposit the award amount with SBI, Rohini Courts branch within 30 days as per above order, failing which insurance company shall be liable to pay interest @ 12% p.a for the period of delay. Concerned Manager, SBI, Rohini Court Branch is directed to transfer the amount of Rs. 1,05,000/ in the aforesaid saving bank account 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 claimant approaches the bank for disbursement so that the award amount starts earning interest from the date of clearance of the cheques. Copy of this award be given dasti to claimant. Copy of this award be given dasti to counsel for insurance company. Copy of this award alongwith one photograph, specimen signature, copy of bank passbook and copy of residence proof of the petitioner, be sent to Nodal Officer of SBI, Rohini Court, Branch, Delhi for information and necessary compliance. Form 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.
Announced in the open Court on 14.09.2018 (VIDYA PRAKASH) Judge MACT2 (North) Rohini Courts, Delhi Deepak Vs. Dinesh Kumar & Ors. Page 20 of 20