Delhi District Court
Smt. Kanchan Devi vs Sh. Prahlad Singh on 25 April, 2019
MACP Nos. 5989/16, 6678/16 & 6417/16, FIR No. 1355/15; PS. Narela DOD: 25.04.2019
IN THE COURT OF SHRI DEVENDER KUMAR JANGALA,
PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNAL,
ROHINI COURTS, DELHI
MAC Petition No. 5989/16 (Old MACP No. 595/15)
1. Smt. Kanchan Devi,
Widow of Late Sh. Sanjit Kumar Yadav
(Widow of deceased)
2. Master Priyansh,
S/oLate Sh. Sanjit Kumar Yadav
(Son of deceased)
3. Sh. Ramvilas Yadav,
S/o Late Sh. Sighneshwar Yadav,
(Father of deceased)
4. Smt. Ram Pyari Devi,
W/o SH. Ramvilas Yadav,
(Mother of deceased)
All R/o Village Bhawanipur,
PS. Pandaul,
District Madhubani,
Bihar.
.......Petitioners
VERSUS
1. Sh. Prahlad Singh,
S/o Sh. Chander Singh,
R/o Village Mukimpur,
District Sonepat,
Haryana.
(Driver)
Smt. Kanchan Devi & Ors., Umesh, Sanjay Vs. Prahlad Singh & Ors. Page 1 of 40
MACP Nos. 5989/16, 6678/16 & 6417/16, FIR No. 1355/15; PS. Narela DOD: 25.04.2019
2. Sh. Sunil Kumar,
S/o Sh. Ved Parkash,
R/o 197, Mahavir Pura,
Ward No. 1,
Gurugram,
Haryana
(Registered Owner)
3. Bharti Axa General Insurance Co. Ltd.
7Th Floor, Mercantile House,
15 KG Marg,
Connaught Place,
Delhi
(Insurer) ........Respondents
AND
MAC Petition No. 6678/16 (Old MACP No. 363/15)
Sh. Umesh Paswan,
S/o Sh. Rampray Paswan,
R/o Kh. No. 86/21,
Rajiv Colony,
Saboli Road,
Narela,Delhi. .......Petitioner
VERSUS
1. Sh. Prahlad Singh,
S/o Sh. Chander Singh,
R/o Village Mukimpur,
District Sonepat,
Haryana.
(Driver)
Smt. Kanchan Devi & Ors., Umesh, Sanjay Vs. Prahlad Singh & Ors. Page 2 of 40
MACP Nos. 5989/16, 6678/16 & 6417/16, FIR No. 1355/15; PS. Narela DOD: 25.04.2019
2. Sh. Sunil Kumar,
S/o Sh. Ved Parkash,
R/o 197, Mahavir Pura,
Ward No. 1,
Gurugram,
Haryana
(Registered Owner)
3. Bharti Axa General Insurance Co. Ltd.
7Th Floor, Mercantile House,
15 KG Marg,
Connaught Place,
Delhi
(Insurer) ........Respondents
AND
MAC Petition No. 6417/16 (Old MACP No. 211/16)
Sh. Sanjay Kumar @ Golu,
S/o Sh. Subhash Singh,
R/o 120, Gali No. 2,
Sanjay Colony,
Mamurpur,
Narela, Delhi. .......Petitioner
VERSUS
1. Sh. Prahlad Singh,
S/o Sh. Chander Singh,
R/o Village Mukimpur,
District Sonepat,
Haryana.
(Driver)
Smt. Kanchan Devi & Ors., Umesh, Sanjay Vs. Prahlad Singh & Ors. Page 3 of 40
MACP Nos. 5989/16, 6678/16 & 6417/16, FIR No. 1355/15; PS. Narela DOD: 25.04.2019
2. Sh. Sunil Kumar,
S/o Sh. Ved Parkash,
R/o 197, Mahavir Pura,
Ward No. 1,
Gurugram,
Haryana
(Registered Owner)
3. Bharti Axa General Insurance Co. Ltd.
7Th Floor, Mercantile House,
15 KG Marg,
Connaught Place,
Delhi
(Insurer) ........Respondents
APPEARENCES
Sh. P.K. Mishra, Ld. Counsel for Lrs of deceased.
Sh. Ram Kumar Prabhakar, Ld. Counsel for injured Umesh.
Sh. P.K. Poddar, Ld. Cousnel for injured Sanjay Kumar.
Sh. Nishant Rai, Ld. Counsel for driver and owner.
Sh. Shailendra Rai, Ld. Counsel for insurance co.
Petition 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 three claim
petitions with regard to fatal injuries sustained by Sanjit Kumar Yadav
(MACP No. 5989/16) and injuries sustained by Sh. Umesh (MACP No.
6678/16) and injuries by Sh. Sanjay Kumar (MACP No. 6417/16) in Motor
Vehicular Accident which occurred on 22.10.2015 at 10:38 pm, in front of
Radha Swami Satsang, Narela, Delhi, involving Car bearing registration no.
Smt. Kanchan Devi & Ors., Umesh, Sanjay Vs. Prahlad Singh & Ors. Page 4 of 40
MACP Nos. 5989/16, 6678/16 & 6417/16, FIR No. 1355/15; PS. Narela DOD: 25.04.2019
HR26V6931 (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 16.10.2017 passed by my
Ld. Predecessor and MACP No. 5989/16 titled as " Kanchan Devi & Ors.
Vs. Prahlad Singh & 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 these matters.
FACTS OF THE CASES
3. According to the claim petitions filed in all three cases, on 22.10.15 at 10:38 pm, in between 6:50 am to 9 am, Sanjit Kumar Yadav (deceased in MACP No. 5989/16) alongwith his friend namely Umesh (injured in MACP No. 6678/16) and Sanjay Kumar(injured in MACP No. 6417/16), was coming to their house on motorcycle no. DL9SAH5856. When the motorcycle reached in front of Radha Swami Satsang, Narela, Delhi, one car bearing registration no. HR26V6931 which was being driven by its driver/R1 at very high speed, in rash and negligent manner, came from Narela side and hit against the aforesaid motorcycle. They all were removed to SRHC Hospital, Narela, Delhi and BJRM Hospital, Jahangir Puri, where Sanjit Kumar Yadav was declared dead and remaining two injured were medically examined by the concerned doctor. Postmortem on Smt. Kanchan Devi & Ors., Umesh, Sanjay Vs. Prahlad Singh & Ors. Page 5 of 40 MACP Nos. 5989/16, 6678/16 & 6417/16, FIR No. 1355/15; PS. Narela DOD: 25.04.2019 the body of deceased was got conducted in BJRM Hopsital vide PMR No. 979/15. FIR No. 1355/15 u/s. 279/337/304A IPC was registered at PS. Narela with regard to the said accident. It is claimed that said offending vehicle was owned by respondent no. 2 and it was insured with Bharti Axa General Insurance Co Ltd./respondent no. 3 during the period in question.
4. It may be noted here that police had also filed Detailed Accident Report (hereinafter called DAR) on 16.08.2016 corresponding to the investigation carried out in FIR No. 1355/15 U/s 279/337/304A IPC registered at PS. Narela with regard to the accident in question.
5. In his identical but separate WS filed in all three cases, the respondent no. 1 i.e. driver has raised preliminary objections that the alleged accident was not caused due to his rash and negligent driving of offending vehicle. He claimed that on 22.10.15, his car bearing registration no. HR26V6931 was parked near the gate of Radha Swami Satsang Ashram, Narela. He started his car and moved towards his home, he noticed some mechanical defects(damage in wheel suspension) in the car due to which, he could not drive the car. Thereafter, he left his car at the spot. As it was night time, all the repairing shops were found closed and he decided to come back. When he reached to his car, he saw the injured were lying on the road with the motorcycle. Thereafter, an Eeco Car was stopped and driver of Eeco car was requested to help in taking the injured persons to SRHC Hospital, Narela, Delhi. He alongwith driver of Eeco Car Smt. Kanchan Devi & Ors., Umesh, Sanjay Vs. Prahlad Singh & Ors. Page 6 of 40 MACP Nos. 5989/16, 6678/16 & 6417/16, FIR No. 1355/15; PS. Narela DOD: 25.04.2019 removed the injured persons to the hospital. He further claimed that he was having valid DL at the time of accident. He also claimed that the aforesaid Car No. HR26V6931 was insured with respondent no. 3 at the time of accident. On merits, he has simply denied the averments made in the petitions and has prayed for dismissal of the petitions.
6. In his identical but separate WS filed in all three cases, the respondent no. 2 i.e. registered owner has claimed that he had already sold the car in question and transfer the ownership vide forms no. 29 & 30 on 30.09.15 i.e. much before the date of alleged accident. Thus, he is not liable to pay any compensation to the petitioners. On merits, he has simply denied the averments made in the petitions and has prayed for dismissal of the petitions.
7. In his identical but separate WS filed in all three cases, the respondent no. 3 i.e. insurance company has claimed that the alleged accident took place due to negligence of one of the injured who was driving motorcycle no. DL9SAH5856. It has further claimed that there were three riders on the aforesaid motorcycle which is not within the permissible limit as laid down in Section 85 of M.V. Act 1939 which is also incorporated in Section 128 of the 1988. Thus, the motorcyclist is liable to contributory negligence to some extent. However, it has admitted that the aforesaid car no. HR26V6931 was insured with it in the name of respondent no. 2 Sunil Kumar at the time of accident.
Smt. Kanchan Devi & Ors., Umesh, Sanjay Vs. Prahlad Singh & Ors. Page 7 of 40MACP Nos. 5989/16, 6678/16 & 6417/16, FIR No. 1355/15; PS. Narela DOD: 25.04.2019
8. From pleading of the parties, the following issues were framed in MACP No. 5989/16 by Ld. Predecessor vide order dated 02.03.2017 :
1) Whether the deceased Sh. Sanjit Kumar Yadav suffered fatal injuries in road traffic accident on 22.10.2015 at 10:38 pm in front of Radha Swami Satsang, Narela, Delhi within the jurisdiction of PS. Narela due to rashness and negligence on the part of Sh. Prahlad Singh who was driving car bearing registration no.
HR26V6931, owned by Sh. Sunil Kumar and insured with Bharti Axa General Insurance Ltd?
OPP.
2) Whether the Lrs of deceased are entitled to any compensation if so to what amoutn and from whom? OPP.
3) Relief.
9. From pleading of the parties, the following issues were framed in MACP No. 6678/16 by Ld. Predecessor vide order dated 02.03.2017 :
1) Whether the injured Umesh suffered injuries in road traffic accident on 22.10.2015 at 10:38 pm in front of Radha Swami Satsang, Narela, Delhi within the jurisdiction of PS. Narela due to rashness and negligence on the part of Sh.
Prahlad Singh who was driving car bearing registration no. HR26V6931, owned by Sh.
Sunil Kumar and insured with Bharti Axa General Insurance Ltd? OPP.
Smt. Kanchan Devi & Ors., Umesh, Sanjay Vs. Prahlad Singh & Ors. Page 8 of 40MACP Nos. 5989/16, 6678/16 & 6417/16, FIR No. 1355/15; PS. Narela DOD: 25.04.2019
2) Whether the injured is entitled to any compensation if so to what amount and from whom? OPP.
3) Relief.
10. From pleading of the parties, the following issues were framed in MACP No. 6417/16 by Ld. Predecessor vide order dated 02.03.2017 :
1) Whether the injured Sanjay Kumar @ Golu suffered injuries in road traffic accident on 22.10.2015 at 10:38 pm in front of Radha Swami Satsang, Narela, Delhi within the jurisdiction of PS. Narela due to rashness and negligence on the part of Sh. Prahlad Singh who was driving car bearing registration no. HR26V6931, owned by Sh. Sunil Kumar and insured with Bharti Axa General Insurance Ltd? OPP.
2) Whether the injured is entitled to any compensation if so to what amount and from whom? OPP.
3) Relief.
11. In order to establish their claim, the petitioners have examined three witnesses i.e. PW1 Sh. Umesh Paswan (Injured in MACP No. 6678/16), PW2 Smt. Kanchan Devi (Widow of deceased Sanjit Kumar in MACP No. 5989/16) and PW3 Sh. Sanjay Kumar (injured in MACP No. 6417/16) and closed their evidence on 08.03.18 through their respective Smt. Kanchan Devi & Ors., Umesh, Sanjay Vs. Prahlad Singh & Ors. Page 9 of 40 MACP Nos. 5989/16, 6678/16 & 6417/16, FIR No. 1355/15; PS. Narela DOD: 25.04.2019 counsels. On the other hand, no evidence was adduced by either of the respondents. Respondents no. 1 & 2 closed their evidence on 24.09.18 through their counsel. RE of respondent no. 3/insurance company was closed vide order dated 24.09.18 passed by my Ld. Predecessor.
12. I have heard the arguments advanced by Ld. Counsels for the parties. Both the sides were directed to submit their respective submissions in Form VIA/VIB vide order dated 06.04.2019 but they have not submitted the same on record till date. My findings on the issues are as under: ISSUE NO. 1 ( IN BOTH THE CASES)
13. For the purpose of this issue, the testimonies of PW1 Sh. Umesh Paswan and that of PW3 Sh. Sanjay Kumar are relevant. PW1 has deposed in his evidence by way of affidavit (Ex. PW1/A) that on 22.10.15, PW1 alongwith with his friend was going from Narela, Delhi to Singhu Border, Delhi, by motorcycle bearing registration no. DL9SAH5856, which was being driven by his friend Vakil Yadav (deceased in MACP No. 5989/16) carefully and cautiously. At about 10:00 pm when they reached Singhu Border Narela Road, near Radha Swami Satsang then all of a sudden, the offending vehicle Wagon R Car bearing registration no. HR26V6931, which was being driven by its driver rashly and negligently, came from wrong side and hit against their motorcycle. As a result of which, they fell down on the road and received grievous injuries. He was admitted Smt. Kanchan Devi & Ors., Umesh, Sanjay Vs. Prahlad Singh & Ors. Page 10 of 40 MACP Nos. 5989/16, 6678/16 & 6417/16, FIR No. 1355/15; PS. Narela DOD: 25.04.2019 in SRHC Hospital, Narela, Delhi. He categorically deposed that accident in question occurred due to rash and negligent driving on the part of the driver of offending vehicle i.e. car bearing registration no. HR26V6931 and was solely responsible for the aforesaid accident. He has relied upon following documents: Serial Description of Remarks No. documents
1. DAR Ex. PW1/1(colly)
2. Copy of his Aadhaar Card Ex.PW1/2
3. Copy of Emergency Mark A Registration Card
14. During his crossexamination on behalf of respondents, he deposed that at the time of accident, he was going from Singhu Border to Narela side. The accident had occurred on 22.10.15. He further deposed that he alongwith Sanjay and Vakil Yadav @ Sanjeet Yadav was going on one motorcycle at the time of accident. He further deposed that said motorcycle was being driven by Vakil Yadav himself and he was sitting as pillion rider at the last. He denied the suggestion that they all were not wearing helmets at that time. He volunteered that all three of them were wearing the helmets. He further denied the suggestion that driver of offending car had taken U Turn before causing the accident. He volunteered that the said car was coming from wrong side before causing the accident. The said car was coming from the side of Narela. He deposed that he had seen the registration number of the offending vehicle as it had Smt. Kanchan Devi & Ors., Umesh, Sanjay Vs. Prahlad Singh & Ors. Page 11 of 40 MACP Nos. 5989/16, 6678/16 & 6417/16, FIR No. 1355/15; PS. Narela DOD: 25.04.2019 stopped after causing the accident. He deposed that he remember the last four digits of the said car, which were ....6931. His statement was recorded by the police in SRHC Hospital on the next day of accident. He denied the suggestion that speed of their motorcycle was high at the time of accident. He further denied the suggestion that the driver of motorcycle was sitting on extreme front portion of the same or that he could not control the motorcycle due to its high speed or that the accident occurred due to negligence on the part of driver of the motorcycle.
15. PW3 Sh. Sanjay Kumar has deposed in his evidence by way of affidavit (Ex. PW3/A) that on 22.10.15 at 10:38 pm in front of Radha Swamit Satsang, Narela, Delhi, he alongwith other persons was standing aside of the road with motorcycle no. DL9SAH5856 and the offending vehicle bearing registration no. HR26V6931 came from the front side at very high speed, without taking care of the persons available on the road and hit against him. As a result of which, he alongwith other persons sustained injuries. He also categorically deposed that accident in question occurred due to rash and negligent driving of respondent no. 1. He has relied upon following documents: Serial Description of Remarks No. documents
1. Copy of FIR No. 1355/15 Ex. PW3/1
2. Copy of arrest memo of Ex. PW3/2 respondent no. 1 Smt. Kanchan Devi & Ors., Umesh, Sanjay Vs. Prahlad Singh & Ors. Page 12 of 40 MACP Nos. 5989/16, 6678/16 & 6417/16, FIR No. 1355/15; PS. Narela DOD: 25.04.2019
3. Copy of insurance policy of Ex. PW3/5 offending vehicle
4. Copy of his discharge slip Ex. PW3/6
5. Copy of his Aadhaar Card Ex. PW3/7
16. During his crossexamination on behalf of respondents no. 1 & 2, he deposed that the accident took place at Gurudwara, near Narela Border. He further deposed that he did not remember the month when the accident in question took place. However, he had remember that it happened on 22nd day of the year 2015. He further deposed that the accident was caused when the car in question was coming from the front side of the motorcycle. He denied the sugggestion that the offending vehicle was lying in stationary condition at the time of accident or that the motorcycle was rammed against the car. He further deposed that there were three persons travelling on the motorcycle at the time of accident. He was sitting in between the driver and the pillion rider. He further deposed that the motorcycle was being driven by Sanjeet Yadav @ Vakil Yadav. He admitted that they were not wearing the helmets at the time of accident. He deposed that the speed of motorcycle was about 20 kmph. He denied the suggestion that the motorcycle was being driven at very high speed. He further denied the suggestion that the motorcycle was being driven negligently at high speed at the time of accident.
17. It is evident from the testimonies of PW1 & PW3 that the respondents could not impeach their testimonies through litmus test of crossexamination and said witnesses are found to have successfully Smt. Kanchan Devi & Ors., Umesh, Sanjay Vs. Prahlad Singh & Ors. Page 13 of 40 MACP Nos. 5989/16, 6678/16 & 6417/16, FIR No. 1355/15; PS. Narela DOD: 25.04.2019 withstood the test of crossexamination. Even otherwise, the testimonies of said witnesses inspire confidence as they themselves are also shown to have sustained injuries due to the accident. Moreover, it is an undisputed fact that FIR No. 1355/15 u/s 279/337/304A IPC was registered at PS. Narela with regard to accident in question. Copy of said FIR (which is part of DAR Ex. PW1/1 colly), would show that same was registered on 23.10.2015 (date of accident being 22.10.15 at 10:38 pm) on the basis of DD Entry No. 65A with regard to accident call received in PS. Narela on 22.10.2015. Thus, FIR is shown to have been registered promptly and without any delay. Hence, there is no possibility of false implication of respondent no. 1 and/or false involvement of car bearing registration no. HR26V6931 at the instance of petitioners herein.
18. 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. HR26V6931 by him.
19. Not only this, the respondent no. 1 namely Prahlad Singh (accused in State case) has been charge sheeted for the offences punishable U/s 279/338/304A IPC by the investigating agency after arriving Smt. Kanchan Devi & Ors., Umesh, Sanjay Vs. Prahlad Singh & Ors. Page 14 of 40 MACP Nos. 5989/16, 6678/16 & 6417/16, FIR No. 1355/15; PS. Narela DOD: 25.04.2019 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. HR26V6931 by him. Same would also point out towards rash and negligent driving of car no. HR26V6931by respondent no. 1.
20. Copy of MLC (Mark A) of injured namely Sh. Umesh filed and of deceased Sanjit Yadav would show that they had been removed to SRHC Hospital, Narela with alleged history of RTA on 22.10.15 at 23:11 hrs. They are shown to have sustained multiple injuries as mentioned therein. Not only this, postmortem was got conducted on the body of deceased Vakil Yadav. Copy of PM Report (which is part of DAR Ex. PW1/1 colly) would show that cause of death of Vakil Yadav @ Sanjit Kumar Yadav was combination of head injury and hemorrhagic shock due to multiple visceral injuries produced by blunt force impact. The injuries as mentioned in the relevant column of external injuries of the said 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.
21. Further, copy of mechanical inspection report dated 28.10.2015 (which is part of DAR Ex. PW1/1 colly) of Car No. HR26V6931, would show fresh damages i.e. its front side body and bumper right side portion were found damaged; its right side fender was damaged; its bonnet from Smt. Kanchan Devi & Ors., Umesh, Sanjay Vs. Prahlad Singh & Ors. Page 15 of 40 MACP Nos. 5989/16, 6678/16 & 6417/16, FIR No. 1355/15; PS. Narela DOD: 25.04.2019 right side portion was damaged; its front windscreen glass was broken from left side and roof front left side portion was found bended and its front left side wheel suspension system was damaged. Likewise, copy of mechanical inspection report dated 28.10.2015 (which is also part of DAR Ex. PW1/1 colly) of motorcycle bearing no. DL9SAH5856 of victims, would show that its front side wheel rim and mudguard were damaged; its front side both shockers were bended; its headlight and both indicators light were damaged and its electric wiring system was damaged; its handle was damaged; its petrol tank both side portion was dented; its left side leg guard was bended and its right side body was found slightly scratched. Said documents have not been disputed by the respondents and corroborate the ocular testimonies of PW1 & PW3 to the aforesaid extent. Moreover, the offending car is shown to have been seized from the place of accident. This fact gets strengthened from the copy of seizure memo dated 23.10.15 (date of accident being 22.10.15 at about 10:38 pm)(which is also part of DAR Ex. PW1/1 colly).
22. Moreover, in response to notice U/s 133 M.V Act (which is part of DAR Ex. PW1/1 colly) served upon respondent no. 1 i.e. driver of car bearing no. HR26V6931, he gave written reply that said vehicle was being driven by him on 22.10.15. He also stated in his reply that he was the actual owner of the aforesaid car at the time of accident. Same would also corroborate the testimonies of PW1 & PW3 to the extent that the aforesaid vehicle was being driven by respondent no. 1 at the time of accident.
Smt. Kanchan Devi & Ors., Umesh, Sanjay Vs. Prahlad Singh & Ors. Page 16 of 40MACP Nos. 5989/16, 6678/16 & 6417/16, FIR No. 1355/15; PS. Narela DOD: 25.04.2019
23. 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 Sanjit Kumar Yadav @ Vakil Yadav had sustained fatal injuries, whereas petitioners Umesh Paswan and Sanjay Kumar had sustained injuries in the road accident which took place on 22.10.2015 at 10:38 pm, in front of Radha Swami Satsang, Narela, Delhi, due to rash and negligent driving on the part of driver of car No. HR26V6931. Thus, this issue is decided in favour of petitioners and against the respondents in both these claim petitions.
ISSUE NO.2
24. 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.
Compensation in MACP No. 5989/16 (Deceased Sanjit Yadav) LOSS OF DEPENDENCY
25. As already stated above, the claimants are the widow, son and parents of deceased. PW1 Smt. Kanchan Devi (widow of deceased) has deposed in her evidence by way of affidavit (Ex. PW2/A) that deceased was Smt. Kanchan Devi & Ors., Umesh, Sanjay Vs. Prahlad Singh & Ors. Page 17 of 40 MACP Nos. 5989/16, 6678/16 & 6417/16, FIR No. 1355/15; PS. Narela DOD: 25.04.2019 aged about 25 years; he was working as Vegetable Vendor and was earning Rs. 15,000/ to Rs. 18,000/ per month at the time of accident. She further deposed that all the petitioners were financially dependent upon the income of deceased. She has relied upon the following documents: Sr. No. Description of documents Remarks
1. Copy of Death Certificate of Ex PW2/1 deceased
2. Copy of educational certificate Ex. PW2/2 of deceased
3. Copy of her Aadhaar Card Ex PW2/3
4. Copy of acknowledgment of Mark A Aadhaar Card of petitioner no.
25. Copy of Aadhaar Card of Ex. PW2/4 mother of deceased
6. Copy of Aadhaar Card of Ex. PW2/5 father of deceased
10. DAR Ex. PW1/11(colly)
26. During her cross examination on behalf of respondent no. 3, she deposed that she had not filed any documentary proof regarding the earning of her deceased husband. She admitted that the age of her minor son was 3 years on the date of recording of her testimony. She further admitted that at the time of accident, they were living in Bihar. She denied the suggestion that her deceased husband was also residing in Bihar at the time of accident. She admitted that she had not placed on record any document with respect to residential proof of Delhi of her deceased Smt. Kanchan Devi & Ors., Umesh, Sanjay Vs. Prahlad Singh & Ors. Page 18 of 40 MACP Nos. 5989/16, 6678/16 & 6417/16, FIR No. 1355/15; PS. Narela DOD: 25.04.2019 husband. Respondents no. 1 & 2 did not crossexamine this witness on this aspect at all.
27. During the course of arguments, counsel for petitioners fairly conceded that for want of any cogent and definite evidence being led by petitioners regarding monthly income of deceased, his income should be considered as per Minimum Wages Act in order to calculate the loss of dependency. He however argued that future prospects should also be awarded to the petitioners as per law.
28. As already noted above, PW1 Smt. Kanchan Devi who is widow of deceased, deposed during her cross examination that she had not filed any document regarding earning of her deceased husband at the time of accident. Hence, it is held that the petitioners have failed to prove that deceased was employed or earning any amount at the time of accident. For want of cogent and definite evidence being led by petitioners with regard to actual monthly income of deceased, his notional monthly income is being taken as equivalent to that of an unskilled worker under Minimum Wages Act applicable during the relevant period. The minimum wages of an unskilled worker were Rs. 9,178/ per month as on the date of accident which is 22.10.2015.
29. As per the case of petitioners, deceased Sanjit Kumar Yadav @ Vakil Yadav was aged about 25 years at the time of accident. It is Smt. Kanchan Devi & Ors., Umesh, Sanjay Vs. Prahlad Singh & Ors. Page 19 of 40 MACP Nos. 5989/16, 6678/16 & 6417/16, FIR No. 1355/15; PS. Narela DOD: 25.04.2019 pertinent to note that petitioners have filed copy of registration card(Ex. PW2/2) of deceased, wherein date of birth of deceased is mentioned as 03.03.1990. The respondents have not disputed the said age of deceased as mentioned in the said document. They have also not led any evidence in order to controvert the said age of deceased as claimed by the petitioners. Thus, the age of deceased is accepted as 25 years at the time of accident. Hence, the multiplier of 18 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.
30. Considering the fact that deceased was aged about 25 years at the time of accident and was not having permanent job at that time, future prospects @ 40% has to be awarded in favour of petitioners 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." mentioned supra, as well as in view of recent decision of Hon'ble Delhi High Court in appeal bearing MAC APP No. 798/2011 titled as "Bajaj Allianz General Insurance Company Ltd. Vs. Pooja & Ors", decided on 02.11.17.
31. PW1 has categorically deposed in her evidence by way of affidavit (Ex. PW2/A) that all the petitioners were fully dependent upon the income of deceased. Said part of her testimony remained unchallenged and Smt. Kanchan Devi & Ors., Umesh, Sanjay Vs. Prahlad Singh & Ors. Page 20 of 40 MACP Nos. 5989/16, 6678/16 & 6417/16, FIR No. 1355/15; PS. Narela DOD: 25.04.2019 uncontroverted from the side of respondents. No evidence in rebuttal has been led by respondents during the course of inquiry. Considering all these facts and circumstances, it is accepted that there were four dependents on the income of deceased at the time of accident. Hence, there has to be deduction of one fourth as held in the case of Pranay Sethi mentioned supra. Thus, the total of loss of dependency would come out to Rs. 20,81,570/ (rounded off) (Rs. 9,178/ X 3/4 X 140/100 X 12 X 18). Hence, a sum of Rs. 20,81,570/ is awarded under this head in favour of the petitioners.
LOSS OF LOVE & AFFECTION
32. 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
33. In view of celebrated judgment of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors.", mentioned Supra a sum of Rs.
Smt. Kanchan Devi & Ors., Umesh, Sanjay Vs. Prahlad Singh & Ors. Page 21 of 40MACP Nos. 5989/16, 6678/16 & 6417/16, FIR No. 1355/15; PS. Narela DOD: 25.04.2019 40,000/ is awarded in favour of petitioner no. 1 Smt. Kanchan Devi (being widow of deceased) towards loss of consortium.
LOSS OF ESTATE & FUNERAL EXPENSES
34. 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 petitioner on account of loss of estate and funeral expenses.
The total compensation is assessed as under:
1. Loss of dependency Rs. 20,81,570/
2. Loss of consortium Rs. 40,000/
2. Loss of Estate & Funeral Rs. 30,000/ Expenses Total Rs. 21,51,570/ Rounded off to Rs. 21,52,000/ Compensation in MACP No. 6678/16(Injured Umesh) MEDICAL EXPENSES
35. PW1 i.e. injured Umesh Paswan has deposed in his evidence by way of affidavit (Ex. PW1/A) that he had sustained grievous injuries i.e. fracture left knee and left elbow due to the impact of the accident and he had incurred a sum of Rs. 50,000/ on his medical treatment. He has relied Smt. Kanchan Devi & Ors., Umesh, Sanjay Vs. Prahlad Singh & Ors. Page 22 of 40 MACP Nos. 5989/16, 6678/16 & 6417/16, FIR No. 1355/15; PS. Narela DOD: 25.04.2019 upon copy of his Emergency Registration Card (Mark A). During his cross examination on behalf of respondent no. 3, he denied the suggestion that he had received his entire medical treatment from government hospital. He deposed that he could not produce any document to show that he had actually received any medical treatment from private doctor/hospital or that he had spent Rs. 50,000/ on his medical treatment. He volunteered that his medical bills and treatment record of private hospital have been misplaced. The respondents no. 1 & 2 did not crossexamine this witness on this aspect at all.
36. It is pertinent to note that the petitioner/injured has failed to file any medical bill in respect of injuries sustained by him due to the accident in question. He is found to have received the treatment from government hospital. Even during the course of arguments, counsel for claimant fairly conceded that no medical bill whatsoever has been filed on record. Hence, no amount is being awarded to the petitioner under this head.
LOSS OF INCOME
37. Injured namely Sh. Umesh (PW1) has categorically deposed in his evidence by way of affidavit(Ex PW1/A) that he was doing the work of Vegetable Vendor and was earning Rs. 10,000/ per month at the time of accident. He further deposed that due to the accident, he could not do his work for about 1 year. Thus, he has suffered loss of income to the tune of Smt. Kanchan Devi & Ors., Umesh, Sanjay Vs. Prahlad Singh & Ors. Page 23 of 40 MACP Nos. 5989/16, 6678/16 & 6417/16, FIR No. 1355/15; PS. Narela DOD: 25.04.2019 Rs. 1,20,000/. During his crossexamination on behalf of insurance company, he deposed that he did not have any document to show that he was working as Vegetable seller or that he was earning Rs. 10,000/ per month at the time of accident. He further deposed that he could not produce any document to show that he remained on bed rest for 1 year or suffered financial loss of Rs. 1,20,000/. Respondents no. 1 & 2 did not cross examine this witness on this aspect at all.
38. The MLC Sheet and Emergency Card (which are part of DAR Ex. PW1/1 colly) of SRHC Hospital, Narela, Delhi in respect of petitioner/injured Umesh, would reveal that he was admitted in the said hospital on 22.10.2015 with alleged history of RTA. Said treatment record would show that the injured had suffered injury in his left leg and left elbow and his left elbow was found to be dislocated. Said record also reveals that the nature of his injury was opined as grievous by the concerned doctor.
39. 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 grievous injuries in the accident. 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 3 months or so.
Smt. Kanchan Devi & Ors., Umesh, Sanjay Vs. Prahlad Singh & Ors. Page 24 of 40MACP Nos. 5989/16, 6678/16 & 6417/16, FIR No. 1355/15; PS. Narela DOD: 25.04.2019
40. 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 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 unskilled worker under Minimum Wages Act during the period in question, has to be taken into consideration. The minimum wages of unskilled worker were Rs. 9,178/ per month as on the date of accident which is 22.10.2015. Thus, a sum of Rs. 27,534/ (Rs. 9,178/ x 3) is awarded in favour of petitioner under this head and against the respondents.
PAIN AND SUFFERING
41. 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, Smt. Kanchan Devi & Ors., Umesh, Sanjay Vs. Prahlad Singh & Ors. Page 25 of 40 MACP Nos. 5989/16, 6678/16 & 6417/16, FIR No. 1355/15; PS. Narela DOD: 25.04.2019 surgeries, if any, underwent by the victim, confinement in the hospital and the duration of treatment".
42. Injured himself as PW1 has deposed in his evidence by way of affidavit(Ex PW1/A) that he had sustained grievous injuries in the accident. As already noted above, his treatment record as available on file, would corroborate said part of his testimony, which has gone unchallenged and unrebutted from the side of respondents. 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, I hereby award a sum of Rs. 50,000/ towards pain and sufferings to the petitioner.
LOSS OF GENERAL AMENITIES & ENJOYMENT OF LIFE
43. As already mentioned above, there is sufficient evidence on record to establish that the petitioner had suffered grievous injuries i.e. injury in his left leg and left elbow in the accident. 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. 30,000/ towards loss of general amenities and enjoyment of life to the petitioner.
CONVEYANCE, SPECIAL DIET & ATTENDANT CHARGES
44. Injured has deposed in his evidence by way of affidavit (Ex. PW1/A) that he had spent Rs. 25,000/ on special diet, Rs. 15,000/ on Smt. Kanchan Devi & Ors., Umesh, Sanjay Vs. Prahlad Singh & Ors. Page 26 of 40 MACP Nos. 5989/16, 6678/16 & 6417/16, FIR No. 1355/15; PS. Narela DOD: 25.04.2019 conveyance and Rs. 18,000/ on attendant 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 grievous injuries in 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. 5,000/ for conveyance charges and a sum of Rs. 10,000/ each for special diet and attendant charges to the petitioner.
Thus, the total compensation is assessed as under:
1. Loss of income Rs. 27,534/
2. Pain and suffering Rs. 50,000/
3. Loss of general amenities and Rs. 30,000/ enjoyment of life
4. Conveyance, special diet & Rs. 25,000/ attendant charges Total Rs. 1,32,534/ Rounded off to Rs. 1,33,000/ Smt. Kanchan Devi & Ors., Umesh, Sanjay Vs. Prahlad Singh & Ors. Page 27 of 40 MACP Nos. 5989/16, 6678/16 & 6417/16, FIR No. 1355/15; PS. Narela DOD: 25.04.2019 Compensation in MACP No. 6417/16(Injured Sanjay Kumar) MEDICAL EXPENSES
45. PW1 i.e. injured Sanjay Kumar has deposed in his evidence by way of affidavit (Ex. PW3/A) that after the accident, he was removed to SRHC Hospital, where he got the initial treatment and later on he was treated in LNJP Hospital. He remained admitted in LNJP Hospital from 23.10.15 to 03.11.15. He further deposed that one iron road was installed in his thigh and hip portion. He deposed to have spent more than Rs. 1,50,000/ on his medical treatment, conveyance, special diet etc. He has relied upon copy of his Discharge Slip (Ex. PW3/6) of LNJP Hospital. During his crossexamination on behalf of respondent no. 3, he deposed that he had not placed on record any documentary proof regarding medical bills as well as of his earnings. The respondents no. 1 & 2 did not cross examine this witness on this aspect at all.
46. It is pertinent to note that the petitioner/injured has failed to file any medical bill in respect of injuries sustained by him due to the accident in question. He is found to have received the treatment from government hospital. Even during the course of arguments, counsel for claimant fairly conceded that no medical bill whatsoever has been filed on record. Hence, no amount is being awarded to the petitioner under this head.
Smt. Kanchan Devi & Ors., Umesh, Sanjay Vs. Prahlad Singh & Ors. Page 28 of 40MACP Nos. 5989/16, 6678/16 & 6417/16, FIR No. 1355/15; PS. Narela DOD: 25.04.2019 LOSS OF INCOME
47. Injured namely Sh. Sanjay Kumar (PW3) has categorically deposed in his evidence by way of affidavit(Ex PW3/A) that he was doing the work of Vegetable Seller and was earning more than Rs. 20,000/ per month at the time of accident. He further deposed that due to the injuries sustained by him in the accident, he became permanent disable and he could not work for considerable period. Thus, he has suffered huge financial loss. During his crossexamination on behalf of insurance company,he deposed that he had not placed on record any documentary proof regarding medical bills as well as of his earnings. He admitted that he had not placed on record any disability certificate. The respondents no. 1 & 2 did not cross examine this witness on this aspect at all.
48. The Discharge Slip (Ex. PW3/6 colly) of LNJP Hospital, Delhi in respect of petitioner/injured Sanjay Kumar @ Golu, would reveal that he remained admitted in the said hospital from 23.10.2015 to 03.11.15. Said treatment record would show that the injured had suffered fracture NOF Left. Said record also reveals that he was operated in the said hospital on 29.10.15.
49. 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 Smt. Kanchan Devi & Ors., Umesh, Sanjay Vs. Prahlad Singh & Ors. Page 29 of 40 MACP Nos. 5989/16, 6678/16 & 6417/16, FIR No. 1355/15; PS. Narela DOD: 25.04.2019 fracture NOF left in the accident. 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 3 months or so.
50. 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 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 unskilled worker under Minimum Wages Act during the period in question, has to be taken into consideration. The minimum wages of unskilled worker were Rs. 9,178/ per month as on the date of accident which is 22.10.2015. Thus, a sum of Rs. 27,534/ (Rs. 9,178/ x 3) is awarded in favour of petitioner under this head and against the respondents.
PAIN AND SUFFERING
51. 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 Smt. Kanchan Devi & Ors., Umesh, Sanjay Vs. Prahlad Singh & Ors. Page 30 of 40 MACP Nos. 5989/16, 6678/16 & 6417/16, FIR No. 1355/15; PS. Narela DOD: 25.04.2019 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".
52. Injured himself as PW1 has deposed in his evidence by way of affidavit(Ex PW1/A) that he had sustained grievous injuries in the accident. As already noted above, his treatment record as available on file, would corroborate said part of his testimony, which has gone unchallenged and unrebutted from the side of respondents. 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, I hereby award a sum of Rs. 50,000/ towards pain and sufferings to the petitioner.
LOSS OF GENERAL AMENITIES & ENJOYMENT OF LIFE
53. As already mentioned above, there is sufficient evidence on record to establish that the petitioner had suffered grievous injuries i.e. fracture NOF left due to the accident. Thus, he would not have been able to enjoy general amenities of life after the accident in question for Smt. Kanchan Devi & Ors., Umesh, Sanjay Vs. Prahlad Singh & Ors. Page 31 of 40 MACP Nos. 5989/16, 6678/16 & 6417/16, FIR No. 1355/15; PS. Narela DOD: 25.04.2019 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. 30,000/ towards loss of general amenities and enjoyment of life to the petitioner.
CONVEYANCE, SPECIAL DIET & ATTENDANT CHARGES
54. Injured has deposed in his evidence by way of affidavit (Ex. PW3/A) that he had spent considerable amount on special diet, conveyance and attendant 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 NOF left 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. 5,000/ for conveyance charges and a sum of Rs. 10,000/ each for special diet and attendant charges to the petitioner.
Thus, the total compensation is assessed as under:
1. Loss of income Rs. 27,534/
2. Pain and suffering Rs. 50,000/ Smt. Kanchan Devi & Ors., Umesh, Sanjay Vs. Prahlad Singh & Ors. Page 32 of 40 MACP Nos. 5989/16, 6678/16 & 6417/16, FIR No. 1355/15; PS. Narela DOD: 25.04.2019
3. Loss of general amenities and Rs. 30,000/ enjoyment of life
4. Conveyance, special diet & Rs. 25,000/ attendant charges Total Rs. 1,32,534/ Rounded off to Rs. 1,33,000/
55. This brings me down to the next question as to which of the respondents is liable to pay the compensation amount. Counsel for insurance company tried to avoid the liability of insurance company on the ground that since there was triple riding on motorcycle bearing registration No. DL9SAH5856 at the time of accident, same constitutes violation of Section 128 M.V Act and thus, there is contributory negligence on the part of pillion riders and the driver of the said motorcycle. Hence, appropriate amount should be deducted from the compensation amount.
56. No doubt, it is an admitted position on record that three persons were travelling on motorcycle bearing registration No. DL9SAH 5856 at the time of accident. However, it does not ipsofacto lead to any inference that there was any contributory negligence on the part of persons riding on the said motorcycle, in the occurrence of accident in question. While deciding issue no. 1 in the preceding paras, it has already been held that the accident in question was caused solely due to rash and negligent driving on the part of car no. HR26V6931.
Smt. Kanchan Devi & Ors., Umesh, Sanjay Vs. Prahlad Singh & Ors. Page 33 of 40MACP Nos. 5989/16, 6678/16 & 6417/16, FIR No. 1355/15; PS. Narela DOD: 25.04.2019
57. The plain reading of Section 128 of M.V. Act, would show that it casts a duty on driver of two wheeled motor vehicle not to carry more than one person in addition to himself/herself on such vehicle. Rule 123 of Road Safety Rules is also relevant in this regard but at the same time, it is relevant to note that these provisions are made as safety measures for driver and pillion rider and breach thereof may amount to 'negligence' but such negligence will not amount to 'contributory negligence' on the part of pillion rider or 'composite negligence' on the part of driver of the motorcycle, unless such negligence was partly the immediate cause of the accident or damage suffered by the pillion rider. In other words, if the damage in the accident has not been caused partly on account of violation of Section 128 of M.V. Act by pillion rider of the motorcycle, the pillion rider is not guilty of contributory negligence and there would be no composite negligence on the part of its driver. There is another aspect of the matter. The driving of three persons on the motorcycle, may constitute violation of traffic rules but it does not ipsofacto establish that motorcycle was being driven rashly or negligently or that it was out of the control of its driver. While taking this view, I am fortified by the judgments rendered in cases titled as "Uttar Pradesh State Road Transport Corporation Vs. Sabra & Ors", MAC APP. 107/2017, decided on 18.09.17 by Hon'ble Delhi High Court, "Devi Singh Vs. Vikram Singh & Ors", 2008(1) Transport And Accidents Cases (T.A.C.) 696(M.P.), "National Insurance Company Limited Vs. Vimla & Ors.", II(2017) ACC 307(DB)(All.), "New India Assurance Co. Ltd. Vs. Jaswinder Kaur & Ors.", 2016 ACJ 936(P&H), Smt. Kanchan Devi & Ors., Umesh, Sanjay Vs. Prahlad Singh & Ors. Page 34 of 40 MACP Nos. 5989/16, 6678/16 & 6417/16, FIR No. 1355/15; PS. Narela DOD: 25.04.2019 "Oriental Insurance Company Limited Vs. Rajesh Devi & Ors.", II (2017) ACC 746 (DB)(All.), "Bimla Devi Vs. Surjeet Singh & Ors.", 2018 ACJ 945 (P & H), "Bharma Kallappa Murashetti & Ors. Vs. Karamjeet Kaur & Anr." 2017 ACJ 1758 (Karnt.).
58. Now turning back to the facts of the present case. The respondents have failed to establish during the course of inquiry that either driver of motorcycle or any of his pillion riders, had contributed in any manner to the occurrence of accident or that any kind of overt fact on behalf of either of them, led to the accident in question. Hence, I am of the considered opinion that there was no breach in the terms and conditions of the insurance policy on the part of insured. Hence, the insurance company is not entitled to recovery rights against the owner/insured. Issue no. 2 is decided accordingly.
ISSUE NO. 3 RELIEF
59. In view of my findings on issues no. 1 & 2, following order is passed after relying upon judgment "Oriental Insurance Company Ltd. Vs. Sangeeta Devi & Ors bearing MAC. APP. 165/2011 decided on 22.02.2016.
a) A sum of Rs. 21,52,000/ (Rupees Twenty One Lacs Fifty Two Thousand only) in MAC Petition No. 5989/16 (including interim award amount if any),
b) A sum of Rs. 1,33,000/ in MAC Petition No. 6678/16.
Smt. Kanchan Devi & Ors., Umesh, Sanjay Vs. Prahlad Singh & Ors. Page 35 of 40MACP Nos. 5989/16, 6678/16 & 6417/16, FIR No. 1355/15; PS. Narela DOD: 25.04.2019
c) A sum of Rs. 1,33,000/ in MAC Petition No. 6678/16. Issue no. 3 is decided accordingly.
APPORTIONMENT
60. Statements of petitioners in terms of Clause 27 MCTAP were recorded. Having regard to the facts and circumstances of the case and in view of their statements, it is hereby ordered that out of total compensation amount in MAC Petition No. 5989/16, the petitioner no. 1 Smt. Kanchan Devi shall be entitled to share amount of Rs. 8,60,800/ (Rupees Eight Lacs Sixty Thousand Eight Hundred Only) alongwith proportionate interest, the petitioner no. 2 Master Priyansh shall be entitled to share amount of Rs. 8,60,800/ (Rupees Eight Lacs Sixty Thousand Eight Hundred Only) alongwith proportionate interest, the petitioner no. 3 namely Sh. Ramvilas Yadav shall be entitled to share amount of Rs. 2,15,200/(Rupees Two Lacs Fifteen Thousand and Two Hundred Only) alongwith proportionate interest and the petitioner no. 4 namely Sh. Ram Pyari Devi shall be entitled to share amount of Rs. 2,15,200/(Rupees Two Lacs Fifteen Thousand and Two Hundred Only) alongwith proportionate interest.
61. Out of share amount of petitioner no. 1, a sum of Rs. 90,000/ (Rupees Ninety Thousand Only), shall be immediately released to her through her saving bank account no. 20299535683 with State Bank of India, Sakri Bazar, Bihar, having IFSC Code Smt. Kanchan Devi & Ors., Umesh, Sanjay Vs. Prahlad Singh & Ors. Page 36 of 40 MACP Nos. 5989/16, 6678/16 & 6417/16, FIR No. 1355/15; PS. Narela DOD: 25.04.2019 SBIN0005859 and remaining amount alongwith interest amount are directed to be kept in the form of FDRs in the multiples of Rs. 20,000/ each for one month, two months, three months and so on and so forth having cumulative interest.
62. The entire share amount of petitioner no. 2 shall be kept in the form of FDR till he attains the age of 21 years. However, monthly interest is allowed to be withdrawn by him through his mother/natural guardian to be used for his welfare and upbringment.
63. Out of share amount of petitioner no. 3, a sum of Rs. 25,000/ (Rupees Twenty Five Thousand Only), shall be immediately released to him through his saving bank account no. 32334468892 with State Bank of India, Sakri Bazar, Bihar, having IFSC Code SBIN0005859 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.
64. Out of share amount of petitioner no. 4, a sum of Rs.25,000/ (Rupees Twenty Five Thousand Only), shall be immediately released to her through her saving bank account no. 37596361146 with State Bank of India, Sakri Bazar, Bihar, having IFSC Code SBIN0005859 and remaining amount alongwith interest amount are directed to be kept in the form of FDRs in the multiples of Rs. 10,000/ each Smt. Kanchan Devi & Ors., Umesh, Sanjay Vs. Prahlad Singh & Ors. Page 37 of 40 MACP Nos. 5989/16, 6678/16 & 6417/16, FIR No. 1355/15; PS. Narela DOD: 25.04.2019 for one month, two months, three months and so on and so forth having cumulative interest.
65. In MACP No. 6678/16, a sum of Rs. 25,000/ (Rupees Twenty Five Thousand Only), shall be immediately released to him through his saving bank account no. 3674036369 with Central Bank of India, Railway Road Narela, Delhi having IFSC Code CBIN0283195 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.
66. In MACP No. 6417/16, a sum of Rs. 25,000/ (Rupees Twenty Five Thousand Only), shall be immediately released to him through his saving bank account no. 3730127899 with Central Bank of India, Railway Road Narela, Delhi, having IFSC Code CBIN0283195 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.
67. 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 Smt. Kanchan Devi & Ors., Umesh, Sanjay Vs. Prahlad Singh & Ors. Page 38 of 40 MACP Nos. 5989/16, 6678/16 & 6417/16, FIR No. 1355/15; PS. Narela DOD: 25.04.2019 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.
(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.
68. During the course of hearing final arguments, claimants except claimant Sanjay Kumar in MACP No. 6417/16 were examined in order to ascertain as to whether they were entitled to exemption from deduction of TDS or not. They made statement on oath that they were entitled to exemption from deduction of TDS and also furnished their respective Form Nos. 15G/15H on record.
69. 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 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 Smt. Kanchan Devi & Ors., Umesh, Sanjay Vs. Prahlad Singh & Ors. Page 39 of 40 MACP Nos. 5989/16, 6678/16 & 6417/16, FIR No. 1355/15; PS. Narela DOD: 25.04.2019 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 award be given dasti to claimants. Copy of this award be also given dasti alongwith Form nos. 15G/15H furnished by claimants (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 both the petitioners, be sent to Nodal Officer of SBI, Rohini Court, Branch, Delhi for information and necessary compliance. Form IVB, IVA 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 record of MAC Petitions No. 6678/16 and 6417/16 , as per the rules.
Announced in the open Court on 25.04.2019 (DEVENDER KUMAR JANGALA) Judge MACT2 (North) Rohini Courts, Delhi Certified that above award contains 40 pages and each page is signed by me. DEVENDER Digitally signed by DEVENDER KUMAR KUMAR JANGALA Date: 2019.04.27 JANGALA 16:44:26 +0530 (DEVENDER KUMAR JANGALA) Judge MACT2 (North) Rohini Courts, Delhi Smt. Kanchan Devi & Ors., Umesh, Sanjay Vs. Prahlad Singh & Ors. Page 40 of 40