Delhi District Court
Hazarilal @ Rohtash (Dec) Thr Lrs vs Mithun Kumar on 7 March, 2024
IN THE COURT OF DR. RUCHI AGGARWAL ASRANI
PRESIDING OFFICER, MACT-01 (CENTRAL)
TIS HAZARI COURTS, DELHI.
DLCT010155582022
HAZARI LAL @ ROHITASH (DECEASED) THROUGH
LRs V. MITHUN KUMAR AND ORS.
MACT No. : 888/2022
FIR No. : 375/2022
PS : Nabi Karim
u/s : 279/304A IPC
1. Sh. Janki Dass
S/o Late Sh. Mehar Chand
2. Smt. Heera Devi
W/o Sh. Janki Dass
3. Smt. Rajni Devi
W/o Late Sh. Hazari Lal @ Rohtash
4. Mr. Mohit
S/o Late Sh. Hazari Lal @ Rohtash
5. Ms. Hema
D/o Late Sh. Hazari Lal @ Rohtash
All R/o 5271, Bharat Nagar Gali,
Paharganj, Swami Ram Tirth Nagar,
Delhi-110055.
......Petitioner
Versus
MACT No.888/2022 Hazari Lal @ Rohtah vs. Mithun Kumar & Ors. Page 1 of 45
1. Sh. Mithun Kumar
S/o Sh. Sagar Singh
R/o Village Nai Ka Pura,
P.S. Chitra Haat, Distt. Agra
Presently residing at:
H. No. 1595, Gali Boriyan,
Bazar Sita Ram, Delhi-110006.
2. Sh. Mohan Lal
S/o Sh. Padam Lal
R/o H. No. 1595, Gali Boriyan,
Bazar Sita Ram, Delhi.
3. HDFC ERGO (General Insurance Company Limited)
5th Floor, Tower, BHA,
Millenium Road, Steller IT Park,
Sector-1, Sector-62, Noida ......Respondents
Date of filing of DAR : 11.11.2022
Judgment reserved on : 28.02.2024
Date of Award : 07.03.2024
AWAR D
Brief facts of the case:
The present Detailed Accident Report (DAR) was filed on
11.11.2022 and was registered as a Motor Accident Claim Petition. The
Road Traffic Accident in question took place on 16.08.2022 at about
11:00 A.M. at DBG Road in front of Avtar Hotel, Paharganj. Mr. Hazari
Lal expired in the said accident. The said accident was allegedly caused
by the vehicle i.e. Scooty bearing registration No. DL-14 SF 3776
which was driven by respondent No.1/Mithun Kumar, owned by
MACT No.888/2022 Hazari Lal @ Rohtah vs. Mithun Kumar & Ors. Page 2 of 45
respondent no. 2/Mr. Mohan Lal and insured with respondent no. 3/
HDFC ERGO General Insurance Co. Ltd.
2. Based on the facts outlined in the DAR and the claim
petition, it emerges that on 16.08.2022, Sh. Hazari Lal sustained injuries
in the said accident. He was taken to LHMC, Delhi where upon
examination, he was declared brought dead.
3. It is the case of the petitioners that the deceased had five
legal heirs i.e. (i) wife, Rajni Devi (aged about 44 years); (ii) son, Mohit
Kumar (aged about 22 years); daughter, Hema (aged about 18 years);
mother, Heera Devi (aged about 74 years) and father, Janki Dass (aged
about 74 years).
4. It is further averred in the claim petition that the accident
had occurred absolutely due to rash and negligent driving of the
offending vehicle Scooty bearing registration No. DL-14SF-3776. The
IO investigated in the matter. The IO filed the chargesheet u/s 279/304A
IPC against respondent no.1 Mithun Kumar before the concerned Ld.
MM, whereas DAR was filed before this Tribunal on 11.11.2022.
Written statements:
5. The respondents filed their respective written statements.
Respondent no. 1 denied all the allegations made by the claimant in the
DAR and stated that respondent no. 1 Mithun Kumar is not liable to pay
any compensation to the petitioners as the claim of the petitioners is
MACT No.888/2022 Hazari Lal @ Rohtah vs. Mithun Kumar & Ors. Page 3 of 45
based on supressed statement of the facts and petitioner has not put the
strict proof regarding the income of the deceased.
6. Respondent no. 2 stated in his written statement that
respondent no. 1 Mithun Kumar took the scooty without his
permission/consent and that he was out of station at the time of accident.
He further stated that respondent no. 1 was living in the house of
respondent no. 2 as a relative and not as a tenant. He also stated that
there is no eye witness in the present case who had seen the alleged
accident and all the witnesses mentioned in the list of witnesses are
fabricated by the police officials.
7. Respondent no. 3 insurance company submitted in its reply
that though the offending vehicle i.e. scooty bearing registration no. DL-
14SF-3776 was insured at the time of the accident in favour of Mohan
Lal for the period w.e.f. 18.09.2021 to 17.09.2022 but the liability of the
respondent no. 3 insurance company is subject to the compliance of the
terms and conditions of insurance company as well as provisions of
Motor Vehicle Act by the owner/insured. It is further stated in the reply
that the driver Mithun Kumar was not holding a valid and effective
driving license authorising him to drive the insured vehicle. It is further
averred that it has come on record that the insured Mohan Lal had
expired on 31.03.2018 and the vehicle in question was in the possession
of Sh. Ganesh, son of Mohan Lal and even after the death of Mohan
Lal, the policy was obtained/renewed in his name for the period from
18.09.2021 to 17.09.2022. It is the contention of the insurance company
that since insurance is a contract between two persons and if one person
MACT No.888/2022 Hazari Lal @ Rohtah vs. Mithun Kumar & Ors. Page 4 of 45
has already died, then the contract so executed in his name becomes null
and void. The respondent no. 3 insurance company has sought discharge
from its liability on the above grounds.
ISSUES FRAMED
8. On the basis of the pleading of the parties, vide order dated
09.02.2023, this Tribunal had framed the following issues:
i. Whether the deceased Hazari Lal @ Rohitash had expired in
Road Traffic Accident which took place on 16.08.2022 at
about 11:00 AM at DBG Road in front of Avtar Hotel,
Paharganj on account of rash and negligent driving driving of
the vehicle bearing registration No. DL-14 SF 3776 (scooty)
driven by the respondent no. 1 namely Mithun Kumar? (OPP)
ii. Whether the vehicle bearing no. DL-14 SF 3776 was not
involved in alleged accident by respondent no. 1 in Para 4 of
his written statement? (OPR-1)
iii. Whether the accident had occurred due to the gross
negligence on the part of the deceased himself, as alleged by
the respondent no. 1 and 2 in Para 6 and 7 of their written
statements? (OPRS-1 & 2)
iv. Whether the LRs of the deceased are entitled for
compensation? If so, to what amount and from whom? (OPP.)
MACT No.888/2022 Hazari Lal @ Rohtah vs. Mithun Kumar & Ors. Page 5 of 45
v. Whether the respondent no. 1was not holding a valid and
effective driving license at the time of accident, as alleged by
respondent no. 2 in his written statement (Para 3)? (OPR-3)
vi. Relief.
EVIDENCE
9. The petitioners examined Smt. Rajni Devi as PW-1 and Sh.
Deepanshu Bansal as PW-2. The respondent no. 2 examined Sh. Ganesh
as R2W-1 and Smt. Kusum as R2W2. Respondent no. 3 examined Ms.
Simarpreet Kaur as R3W1.
10. The petitioner had filed the Form XIII. Financial statement
of the petitioners were recorded and final arguments were heard on
behalf of the petitioners and all the respondents.
FINDINGS & OBSERVATIONS
11. Before delving into the facts of the current case to decide
the aforementioned issues, it is pertinent to highlight that it is firmly
established in legal precedents that the proceedings conducted before the
Claims Tribunal are in the nature of an inquiry. Further, procedural
approach adopted by an accident claims' tribunal mirrors that of a civil
court (National Insurance Co. Ltd. vs. Smt. Pushpa Rana & Ors.
2009 ACJ 287). In civil proceedings, the establishment of facts hinges
on a preponderance of probabilities, rather than being bound by the strict
rules of evidence or the higher standard of beyond reasonable doubt, as
MACT No.888/2022 Hazari Lal @ Rohtah vs. Mithun Kumar & Ors. Page 6 of 45
required in criminal cases. The burden of proof in civil cases is lighter
than in criminal cases, and the burden to decide claim petition under The
Motor Vehicles Act is even lesser as compared to a civil litigation. In
Bimla Devi & Ors. v. Himachal Road Transport Corporation & Ors
(2009) 13 SC 530, it has been held by Hon'ble Supreme Court of India
that negligence must be decided on the touchstone of preponderance of
probabilities and a holistic view must be adopted in reaching a
conclusion.
12. Keeping in mind the aforementioned legal principle for
adjudicating the present issue, this Tribunal has thoroughly gone through
the testimony of the witnesses and all the material available on record.
Also, careful consideration has been given to the arguments addressed
by the Learned Counsels for all the parties.
Issue Nos. 1, 2 and 3:
Whether the deceased Hazari Lal @ Rohitash had expired in
Road Traffic Accident which took place on 16.08.2022 at about 11:00
AM at DBG Road in front of Avtar Hotel, Paharganj on account of
rash and negligent driving driving of the vehicle bearing registration
No. DL-14 SF 3776 (scooty) driven by the respondent no. 1 namely
Mithun Kumar? (OPP)
Whether the vehicle bearing no. DL-14 SF 3776 was not involved in
alleged accident by respondent no. 1 in Para 4 of his written
statement? (OPR-1)
MACT No.888/2022 Hazari Lal @ Rohtah vs. Mithun Kumar & Ors. Page 7 of 45
Whether the accident had occurred due to the gross negligence on the
part of the deceased himself, as alleged by the respondent no. 1 and 2
in Para 6 and 7 of their written statements? (OPRS-1 & 2)
The factum of accident:
13. The burden of proof with respect to issue no. 1 was on the
petitioner; with respect to issue no. 2, it was on respondent no. 1 and the
burden of proof with respect to issue no. 3 was on respondent nos. 1 and
2. Since, all the three issues are connected with each other, they will be
dealt with together.
14. In this matter, to prove the occurrence of the accident as
well as the rashness and negligence on the part of the driving of
offending vehicle by respondent no. 1, the wife of the deceased who is
the petitioner in this case examined herself as PW-1 who deposed in her
evidence by way of affidavit Ex. PW1/A as under:-
"2. I state that after the accident he was taken to
LHMC, Delhi, where MLC no. 1787/2022 was
prepared. Doctors after examination declared him
brought dead.
...
5. I state that arising out of the accident in question a criminal case was registered vide FIR No. 375/22 dated 16.08.2022 U/s 279/304A IPC, 3/188, 134A/177 MV Act at PS Nabi Karim, Delhi against the driver of the offending Scooty No. DL- 14SF-3776. The Investigating Officer after completion of investigation at different levels have filed DAR, the same has been registered as claim case. The DAR be marked as Ex. PW1/9 and be read in evidence.
MACT No.888/2022 Hazari Lal @ Rohtah vs. Mithun Kumar & Ors. Page 8 of 456. I state that the circumstances wherein the accident was caused speaks in itself that it was caused on account of high speed, rash and negligent driving, in complete disregard to traffic regulations on the part of the driver of the offending Scooty No. DL-14SF-3776. "
15. To prove the accident, the petitioner also examined Sh. Deepanshu as PW-2 who testified as under:
"... I am having a shop at Paharganj under the name and style of Shiv Shakti Plastic bearing No. 3266 to 70. on 16.08.2022 I was standing outside my shop and I saw one pedestrian crossing the road from Zebra crossing from near Avtar Hotel side, Paharganj Delhi for going towards other side and had almost crossed more than 3/4th one side of the road and nearing the central divider. At that very time one White Color Vespa Scooty bearing no. DL14 SF 3776 came at high speed, rashly and negigently which was coming from Ajmeri Gate side and going towards Karol Bagh side and hit the pedestrian with force. On account of forceful impact the injured was thrown away on the road/divider and the scooty along with driver and pillion rider fell on the road and scooty came to stop after travelling quite some distance. The plastic pieces of the scooty fell at the place of accident. The scooty driver alongwith pillion rider ran away on the scooty from the place of accident after some time leaving the injured at the place of accident. The accident took place due to high speed, rash and negligent driving on the part of the driver of the scooty."
16. PW-2, Deepanshu, who is the eye-witness has categorically proved the factum of the accident and the registration number of the offending vehicle. He has unequivocally testified that the driver of the offending vehicle was driving the offending vehicle bearing registration MACT No.888/2022 Hazari Lal @ Rohtah vs. Mithun Kumar & Ors. Page 9 of 45 no. DL-14-SF-3776, at a very high speed and in the most rash, reckless and negligent manner leading to the accident. The deposition of PW-2 as to the manner of the accident and the driving of the offending vehicle in a rash and negligent manner by the driver remained unshaken during cross-examination of the said witness and in fact was strengthened during the same. He affirmed that "It is wrong to suggest that the offneding vehicle was coming at a normal speed following traffic rules and norms. It is further wrong to suggest that accident was not took place due to the negligence of driver of the offending vehicle. It is wrong to suggest that the accident took place due to the mistake of the deceased."
17. Thus, PW-2 has emphatically testified that the driver of the offending vehicle was driving the offending vehicle at a high speed, rashly and negligently, resulting in the accident. Further, in support of the occurrence of the accident, the IO has affirmed in the DAR filed by him that the offending vehicle bearing registration no. DL-14-SF-3776 was driven by respondent no. 1 and owned by respondent no. 2. Additionally, the IO reported that the offending vehicle was sent for mechanical inspection.
18. Furthermore, it is settled law that this Tribunal is holding an inquiry and not a trial where the case has to be decided to the hilt. Here the burden is even lesser than the balance of probabilities. Therefore, based on the entirety of the record and the testimonies of PW-1 and PW- 2, the occurrence of the accident and the identification of respondent no. 1, Mithun Kumar, as the driver of the offending vehicle with registration MACT No.888/2022 Hazari Lal @ Rohtah vs. Mithun Kumar & Ors. Page 10 of 45 no. DL-14-SF-3776, have been conclusively established.
19. Furthermore, Respondent no. 1 has not examined himself to prove that he was not rash or negligent while driving the offending vehicle and as such adverse inference has to be drawn against him (reliance is placed on the judgments of Hon'ble High Court of Delhi in the cases of Teja Singh Vs Suman & Ors., MAC. APP. 1111/2018 & CM APPL. 52384/2018, 52386/2018, date of decision 06/12/2019; MAC. APP. 428/2018, titled as The Oriental Insurance Co. Ltd. Vs Kamla Devi & Ors, date of decision 08.11.2019 and MAC. APP. 690/2017 & CM APPL. 28108/2017, titled as Reliance General Insurance Company Ltd. Vs Mona & Ors., date of decision 15.10.2019, which had relied upon the judgment in the case of Cholamandalam Insurance Co. Ltd. Vs Kamlesh 2009(3) AD Delhi
310.) Secondly, the fact of the accident has not been disputed and thus, it stands established that the accident did take place due to which the petitioner sustained injuries.
20. Therefore, in view of filing of DAR containing the charge- sheet for the offences u/s 279/304A IPC and other relevant documents against the respondent no. 1 and in terms of the judgment in the case of National Insurance Co. Vs. Pushpa Rana & Ors. 2009 ACJ 287 Delhi, respondent no. 1 Mithun Kumar (driver of the offending vehicle) is held to be negligent on the basis of preponderance of probability. From the DAR, it also stands established that the offending vehicle was owned by Mohan Lal, respondent no. 2 and insured with respondent no. 3, HDFC ERGO General Insurance Co. Ltd. vide Policy No. MACT No.888/2022 Hazari Lal @ Rohtah vs. Mithun Kumar & Ors. Page 11 of 45 2320204302654800000 valid from 18.09.2021 to 17.09.2022. The factum of said insurance is also admitted by respondent no. 3, however, they claim that the insurance policy is not valid. This issue will be dealt with at a later stage.
The injury:
21. The MLC No. 1787 dated 16.08.2022 reveals that the injured (since deceased) was brought in an unconscious state to Lady Harding Medical College at 11:38 AM and it was informed that the patient had met a road traffic accident by scooty at Paharganj, New Delhi. The said person was "declared brought dead". Further, the Death report of the deceased which is part of DAR reveals that the deceased sustained injuries on his face, head and hand and that the apparent cause of his death was "accident". Thus, it stands established that the deceased Hazari Lal @ Rohtash had expired on account of injuries sustained by him in the accident in question.
22. In view of aforesaid discussion, issue nos.1, 2 and 3 are decided in favour of petitioners (LRs of deceased) and against the respondents.
Issue no. 4:
Whether the LRs of the deceased are entitled for compensation? If so, to what amount and from whom? (OPP.)
23. The petitioners are certainly entitled for compensation in MACT No.888/2022 Hazari Lal @ Rohtah vs. Mithun Kumar & Ors. Page 12 of 45 view of the decision of issue nos. 1, 2 and 3 above. The onus of proving the extent of compensation was upon the Petitioners. To prove their claim, the petitioners examined Smt. Rajni Devi, the wife of the deceased as PW-1 who in her affidavit Ex. PW1/1, has deposed as under:-
"3. I state that Hazari Lal the deceased has left behind the following Dependant legal heirs:-
(I) Rajni Devi- Wife - aged about 44 years (DOB: 09.01.1978) (II) Mohit Kumar- Son - aged about 22 years (DOB: 02.08.2000) (III) Hema- Daughter- aged about 18 years (DOB: 25.08.2003) (IV) Heera Devi- Mother- aged about 74 years (V) Janki Dass- Father- aged about 74 years I further state that I and Heera Devi are house wife. I further state that Hema my daughter is studying. I further state that my father in law namely, Janki Dass is not working and use to stay at home. I further state that my son Mohit Kumar was partly dependent on the deceased. I have brought the original Aadhaar Card of Rajni Devi, Mohit Kumar, Hema, Heera Devi, Janki Dass and Hazari Lal the copies of the same is Ex. PW1/1 to Ex.
PW1/6 respectively.
I have brought the CUET (UG)-2022 Admit Card of Hema the copy of the same is Ex. PW1/7 (Colly).
4. I state that Late Sh. Hazari Lal was 48 years (DOB 25.08.1973) of age as on the date of the accident, possessed sound health and physique. I further state that he has Permanent Account Number- AEIPL7736C, I have brought the original, the copy of the same is Ex. PW1/2. He was working with Mohan Garments, Janpath Gujrati Market, Delhi- 110001 as Sales Man and getting a salary of Rs. 21,000/- per month. I further state that my MACT No.888/2022 Hazari Lal @ Rohtah vs. Mithun Kumar & Ors. Page 13 of 45 husband had studied up-till 9th class from Nagar Nigam School, Chuna Mandi, Delhi. His salary and incentives was increasing on year to year basis."
24. The petitioners are claiming a total compensation to the tune of Rs. 26,89,444/- (as per form XIII) from the respondents. I have considered the evidence on record and perused the entire record.
25. The general principles relating to computation of compensation in such cases were laid down by the Hon'ble Supreme Court in the case of Sarla Verma & Others Vs. Delhi Transport Corporation & Another (2009) 6 Supreme Court Cases 121 which were reiterated by the Constitution Bench of Hon'ble Supreme Court in the case of National Insurance Company Vs. Pranay Sethi & Ors. decided on 31.10.2017. The same are as under:
"...18. Basically only three facts need to be established by the claimants for assessing compensation in the case of death:
(a) age of the deceased;
(b) income of the deceased; and
(c) the number of dependents.
The issues to be determined by the Tribunal to arrive at the loss of dependency are:
(i) additions/deductions to be made for arriving at the income;
(ii) the deduction to be made towards the personal living expenses of the deceased; and
(iii) the multiplier to be applied with reference to the age of the deceased.
If these determinations are standardized, there will be uniformity and consistency in the decisions. There will be lesser need for detailed MACT No.888/2022 Hazari Lal @ Rohtah vs. Mithun Kumar & Ors. Page 14 of 45 evidence. It will also be easier for the Insurance Companies to settle accident claims without delay.
19. To have uniformity and consistency, the Tribunals should determine compensation in cases of death, by the following well settled steps:
Step 1 (Ascertaining the multiplicand) The income of the deceased per annum should be determined. Out of the said income a deduction should be made in regard to the amount which the deceased would have spent on himself by way of personal and living expenses. The balance, which is considered to be the contribution to the dependent family, constitutes the multiplicand.
Step 2 (Ascertaining the multiplier) Having regard to the age of the deceased and period of active career, the appropriate multiplier should be selected. This does not mean ascertaining the number of years he would have lived or worked but for the accident. Having regard to several imponderables in life and economic factors, a table of multiplier with reference to the age has been identified by this Court. The multiplier should be chosen from the said table with reference to the age of the deceased.
Step 3 (Actual Calculation) The annual contribution to the family (multiplicand) when multiplied by such multiplier gives the 'loss of dependency' to the family.
Thereafter, a conventional amount in the range of Rs.5,000/- to Rs.10,000/- may be added as loss of estates. Where the deceased is survived by his widow, another conventional amount in the range of Rs.5,000/- to Rs.10,000/- should be added under the head of loss of consortium. But no amount is to be awarded under the head of pain, suffering or hardship caused to the legal heirs of the deceased.
The funeral expenses, cost of transportation of the MACT No.888/2022 Hazari Lal @ Rohtah vs. Mithun Kumar & Ors. Page 15 of 45 body (if incurred) and the cost of any medical treatment of the deceased before death (if incurred) should also be added....." .
Age determination of the deceased:
26. Applying the principles settled in the case of Sarla Verma (supra) and Pranay Sethi (supra) to the facts of the present case, the first aspect to be determined is the age of the deceased. According to the petitioners, the deceased Hazari Lal @ Rohtash was aged 48 years old at the time of the accident. The PAN card bearing no. AEIPL7736C of the deceased Hazari Lal @ Rohtash shows that his date of birth was 25.08.1973. Accordingly, the deceased Hazari Lal @ Rohtash was precisely aged 48 years, 11 months and 21 days old at the time of accident on 16.08.2022. Thus, it is concluded that the age of the deceased was more than 48 years old at the time of accident but less than 49 years. Hence, applying the criteria laid down in the case of Sarla Verma Vs. DTC (Supra) the multiplier applicable according to the age of deceased, would be thirteen (13) as the deceased would fall in the bracket of 46-50 years.
Income of the deceased:
27. The petitioners have claimed that the deceased Hazari Lal @ Rohtash was working as a Sales person in Mohan Garments, Janpath Gujrati Market, Delhi and was earning Rs. 21,100/- per month.
However, the petitioners have not filed any document to prove the employment or income of the deceased. Thus, the income of the MACT No.888/2022 Hazari Lal @ Rohtah vs. Mithun Kumar & Ors. Page 16 of 45 petitioner will have to be assessed as per the minimum wages. The petitioners have filed on record the Aadhar card of the deceased bearing no. 4566 2479 3491 as per which he was a resident of Delhi. Thus, it is proved that he was a resident of Delhi, however, no educational qualification or special skill has been placed on record. Therefore, in the absence of proof of employment and income and considering his address to be of Delhi, the minimum wages for an unskilled labour prevalent in Delhi at the time of the accident (on 16.08.2022) i.e. Rs. 16,506/- is taken as the income of the deceased Hazari Lal @ Rohtash. Therefore, it is held that the monthly income of the deceased Hazari Lal @ Rohtash at the time of the accident i.e. on 16.08.2022 was Rs. 16,506/-.
Personal deductions:
28. As regards the aspect of deduction towards personal living expenses of the deceased is concerned, it is an admitted case of the petitioners and also evident from the DAR that the deceased Hazari Lal @ Rohtash had left behind five legal heirs i.e. (i) wife, Rajni Devi (aged about 44 years); (ii) son, Mohit Kumar (aged about 22 years); daughter, Hema (aged about 18 years); mother, Heera Devi (aged about 74 years) and father, Janki Dass (aged about 74 years). It is also claimed that all the petitioners were fully dependent upon the salary of the petitioner, however, no such document has been placed on record. Since, his son had already attained the age of majority and does not seem to have been dependent upon the deceased, it is concluded that the deceased had only three legal heirs who were financially dependent on him i.e. his wife.MACT No.888/2022 Hazari Lal @ Rohtah vs. Mithun Kumar & Ors. Page 17 of 45
Mother and daughter. Thus, in view of the settled proposition of law as laid down in the case of Sarla Verma & Others Vs. Delhi Transport Corporation & Another (Supra), the deductions in the income of the deceased towards his living and personal expenses would be one third of his income (there being three dependents of the deceased i.e. his wife, mother and daughter). Further, by adopting the principles laid down in the case of National Insurance Co. Ltd. Vs. Pranay Sethi & Ors. 2017 ACJ 2700 (SC), the future prospects of the deceased Hazari Lal @ Rohtash shall be 25% as he fell within the bracket of 41-50 years of age at the time of accident on 16.08.2022.
Compensation under non-pecuniary heads:
29. The case of National Insurance Co. Ltd. Vs. Pranay Sethi & Ors. 2017 ACJ 2700 (SC) was considered and clarified by the Hon'ble Apex Court in the case of Magma General Insurance Company Ltd. Vs. Nanu Ram @ Chuhru Ram & Ors. Civil Appeal No. 9581/2018 decided on 18.09.2018 whereby after considering the case of Pranay Sethi's (supra), Hon'ble Supreme Court was pleased to award loss of consortium of Rs. 40,000/- to each dependent of the deceased and further pleased to award a compensation of Rs.50,000/- to each dependent of the deceased towards loss of love and affection. The relevant portion is as under:
"...... A Constitution Bench of this Court in Pranay Sethi (supra) dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is Loss of Consortium.
In legal parlance, "consortium" is a compendious MACT No.888/2022 Hazari Lal @ Rohtah vs. Mithun Kumar & Ors. Page 18 of 45 term which encompasses 'spousal consortium', 'parental consortium', and 'filial consortium'.
The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse.
Spousal consortium is generally defined as rights pertaining to the relationship of a husband wife which allows compensation to the surviving spouse for loss of "company, society, cooperation, affection, and aid of the other in every conjugal relation."
Parental consortium is granted to the child upon the premature death of a parent, for loss of "parental aid, protection, affection, society, discipline, guidance and training."
Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit.
Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions world-over have recognized that the value of a child's consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensation for loss of the love, affection, care and companionship of the deceased child.
The Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, in cases of genuine claims. In case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded MACT No.888/2022 Hazari Lal @ Rohtah vs. Mithun Kumar & Ors. Page 19 of 45 loss of consortium under the head of Filial Consortium.
Parental Consortium is awarded to children who lose their parents in motor vehicle accidents under the Act.
A few High Courts have awarded compensation on this count. However, there was no clarity with respect to the principles on which compensation could be awarded on loss of Filial Consortium.
The amount of compensation to be awarded as consortium will be governed by the principles of awarding compensation under 'Loss of Consortium' as laid down in Pranay Sethi (supra).
In the present case, we deem it appropriate to award the father and the sister of the deceased, an amount of Rs.40,000 each for loss of Filial Consortium.....".
30. However, in the case of United India Insurance Company Ltd. Vs. Satinder Kaur @ Satwinder Kaur 2020 SCC Online SC 410 the Hon'ble Supreme Court has observed that there is no justification to award compensation towards loss of love and affection as a separate head. The relevant portion of the observations are reproduced as under:
"...... The amount to be awarded for loss consortium will be as per the amount fixed in Pranay Sethi (supra). At this stage, we consider it necessary to provide uniformity with respect to the grant of consortium, and loss of love and affection. Several Tribunals and High Courts have been awarding compensation for both loss of consortium and loss of love and affection. The Constitution Bench in Pranay Sethi (supra), has recognized only three conventional heads under which compensation can be awarded viz. loss of estate, loss of consortium and funeral expenses.
In Magma General (supra), this Court gave a comprehensive interpretation to consortium to MACT No.888/2022 Hazari Lal @ Rohtah vs. Mithun Kumar & Ors. Page 20 of 45 include spousal consortium, parental consortium, as well as filial consortium. Loss of love and affection is comprehended in loss of consortium.
The Tribunals and High Courts are directed to award compensation for loss of consortium, which is a legitimate conventional head. There is no justification to award compensation towards loss of love and affection as a separate head...".
31. In the Pranay Sethi case (supra), the Hon'ble Supreme Court had held that the reasonable figures on conventional heads, namely, loss of Estate, loss of consortium and funeral expenses should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively, with enhancement at the rate of 10% in a span of three years. By applying the said principles and law laid down in Satinder Kaur @ Satwinder Kaur case (supra), a sum of Rs. 15,000/- is awarded under each head of Loss of Estate and funeral expenses and a sum of Rs.40,000/- each is awarded to all the petitioners towards Loss of Consortium.
Issue no. 5:
Whether the respondent no. 1 was not holding a valid and effective driving license at the time of accident, as alleged by respondent no. 2 in his written statement (Para 3)? (OPR-3)
32. To prove that the respondent no. 1 was driving the offending vehicle without license, respondent no. 3 examined Ms. Simarpreet Kaur, Dy. Manager, HDFC ERGO General Insurance Co. Ltd. as R3W1 who deposed as follows:
"4. That after the said accident, the matter was investigated by the Investigating Officer of criminal MACT No.888/2022 Hazari Lal @ Rohtah vs. Mithun Kumar & Ors. Page 21 of 45 case and the Respondent no. 1 who was the driver of the insured vehicle was charge sheeted by the police u/s 279/304A IPC. During investigation, he could not produce his driving license authorizing him to drive the insured vehicle. Accordingly, he was challaned by the police u/s 3/181 of M.V. Act. Neither the Respondent no. 2 has replied to the said notice of the Respondent no. 3 nor has he complied the notice as was called upon.
5. That thus, the Respondent no. 2 (LRs of deceased insured) have fundamentally violated the terms and conditions of the insurance policy by allowing the Respondent no. 1 to drive the insured vehicle without holding a valid and effective driving license. As per the terms and conditions of the insurance policy, a person holding a valid and effective driving license was only auhtorised to drive the insured vehicle. In view of the violation of the terms and conditions of the insurance policy and the provisions of M.V. Act by the Insured/ owner, the insurance company has no liability to indemnify the insured/ owner or to pay any amount of compensation to the petitioners."
33. The respondent nos. 1 and 2 have not put any question to R3W1 with respect to the contention of the Respondent no. 3 regarding the respondent no. 1 not holding a valid driving license. They have not even led any evidence to prove that respondent no. 1 had a valid driving license. Respondent no. 1 has not examined himself to prove that he had a valid driving license. Further, the IO has also filed a chargesheet under section 3/181 MV Act for driving the offending vehicle without a valid driving license. Thus, from the entire record, it can safely be concluded that respondent no. 3 has successfully proved that respondent no. 1 was driving the offending vehicle without a valid driving license. Thus, issue no. 5 is decided in favour of respondent no. 3 and against respondent nos. 1 and 2.
MACT No.888/2022 Hazari Lal @ Rohtah vs. Mithun Kumar & Ors. Page 22 of 45Computation of compensation:
34. Applying the settled guidelines in the various judgments, the compensation payable to the petitioners is calculated as under:
Sr. Head Awarded by the Claims No. Tribunal 1 Monthly Income of deceased (A) Rs. 16,506/- 2 Add future prospect (B) @ 25%= 4,126.5/- 3 Less 1/3 deductions towards (16,506 +4126.5) x 1/3=
personal and living expenses of Rs. 6,877.5/-
the deceased (C)
4 Monthly loss of dependency (16,506+4,126.5)-6,877.5=
[(A+B) - C = D] Rs. 13,755/-
5 Annual loss of Dependency 13,755/- x 12= 1,65,060/-
(D x 12)
6 Multiplier (E) 13
7 Total loss of dependency 1,65,060 x 13=
DxE=F Rs. 21,45,780/-
8 Medical Expenses (G) Nil.
9 Compensation for loss of love Nil.
and affection (H)
10 Compensation for loss of 40,000 x 5=2,00,000/-
consortium (I) to all the 05
petitioners
11 Compensation for loss of Estate Rs. 15,000/-
(J)
12 Compensation for funeral Rs. 15,000/-
expenses (K)
MACT No.888/2022 Hazari Lal @ Rohtah vs. Mithun Kumar & Ors. Page 23 of 45
13 Total Compensation (F+I+J+K) Rs. 23,75,780/-
35. Further, in view of the judgment of Benson George V. Reliance General Insurance Co. Ltd. in Civil Appeal No. 1540 of 2022 decided on 25.02.2022, the claimants are held entitled to interest @ 6 % per annum from the date of filing of DAR i.e. from 11.11.2022 till realization.
Apportionment:
36. It is evident from the record that the deceased Hazari Lal @ Rohtash had left behind five legal heirs i.e.(i) wife, Rajni Devi (aged about 44 years); (ii) son, Mohit Kumar (aged about 22 years); daughter, Hema (aged about 18 years); mother, Heera Devi (aged about 74 years) and father, Janki Dass (aged about 74 years). For the sake of convenience, the individual shares of the dependents of the deceased are tabulated as under:-
S.No. Name of the Relation with Percentage Amount in (Rupees) claimant deceased of share
1. Rajni Devi Wife 40% Rs. 8,58,312/-
+ Rs. 40,000/-
+ Rs. 15,000/-
+ Rs. 15,000/-
= Rs. 9,28,312/-
2. Mohit Kumar Major son Rs. 40,000/-
3. Hema Major 30% Rs. 6,43,734/-
daughter +Rs. 40,000/-
=Rs. 6,83,734/-
4. Heera Devi Mother 30% Rs. 6,43,734/-
MACT No.888/2022 Hazari Lal @ Rohtah vs. Mithun Kumar & Ors. Page 24 of 45
+Rs. 40,000/-
=Rs. 6,83,734/-
5. Janki Dass Father Rs. 40,000/-
37. Further, during the course of the proceedings, Sh. Janki Dass, father of the deceased also expired. His legal heirs i.e. Smt. Heera Devi (wife); Smt. Nirmala (daughter); Smt. Jai Bhagwan (daughter); Sh. Dharmender (son); Sh. Naresh (son) and Sh. Bhawani Prasad (son) were brought on record. Therefore, it is ordered that the amount falling to the share of Sh. Janki Dass i.e. Rs. 40,000/- shall be paid in equal amount to all his six legal heirs.
Disbursement (a.) In favour of Smt. Rajni Devi:-
38. On realization of the award amount, a sum of Rs. Rs.1,28,312/- (Rupees One Lac Twenty Eight Thousand Three Hundred & Twelve only) along with entire interest amount be released to the petitioner no. 1 Rajni Devi (wife of the deceased) and her balance amount of Rs. 8,00,000/- (Rupees Eight Lakhs only) shall be put in 40 (Forty Six) monthly fixed deposits in her name in MACAD account of equal amount of Rs. 20,000/- (Rupees Twenty Thousand only) each for a period of 01 month to 40 months respectively, with cumulative interest in terms of the directions contained in FAO No. 842/2003 dated 07.12.2018 & 08.01.2021. Besides the above said amount, amount of FDRs on maturity, shall automatically be transferred in her saving account maintained in a nationalized bank situated near the place of her residence without the MACT No.888/2022 Hazari Lal @ Rohtah vs. Mithun Kumar & Ors. Page 25 of 45 facility of cheque book and ATM card.
(b.) In favour of Ms. Hema:-
39. Further, a sum of Rs. 83,734/- (Rupees Eighty Three Thousand Seven Hundred & Thirty Four only) along with entire interest amount be released to the petitioner no. 3 Hema (daughter of the deceased) and her balance amount of Rs. 6,00,000/- (Rupees Six Lakhs only) shall be put in 30 Thirty Six monthly fixed deposits in her name in MACAD account of equal amount of Rs. 20,000/- (Rupees Twenty Thousand only) each for a period of 01 month to 30 months respectively, with cumulative interest in terms of the directions contained in FAO No. 842/2003 dated 07.12.2018 & 08.01.2021. Besides the above said amount, amount of FDRs on maturity, shall automatically be transferred in her saving account maintained in a nationalized bank situated near the place of her residence without the facility of cheque book and ATM card.
(c.) In favour of Smt. Heera Devi:-
40. Furthermore, a sum of Rs. 83,734/- (Rupees Eighty Three Thousand Seven Hundred & Thirty Four only) along with entire interest amount be released to the petitioner no. 4 Heera Devi (mother of the deceased) and her balance amount of Rs. 6,00,000/-
(Rupees Six Lakhs only) shall be put in 30 Thirty Six) monthly fixed deposits in her name in MACAD account of equal amount of Rs. 20,000/- (Rupees Twenty Thousand only) each for a period of 01 month to 30 months respectively, with cumulative interest in terms of the directions contained in FAO No. 842/2003 dated 07.12.2018 & MACT No.888/2022 Hazari Lal @ Rohtah vs. Mithun Kumar & Ors. Page 26 of 45 08.01.2021. Besides the above said amount, amount of FDRs on maturity, shall automatically be transferred in her saving account maintained in a nationalized bank situated near the place of her residence without the facility of cheque book and ATM card.
(d.) In favour of Mohit Kumar and Janki Dass:-
41. Further, the amount of Rs. 40,000/- as loss of consortium along with interest thereupon be released to petitioner no. 2 namely Mohit Kumar immediately on receipt of the award amount and an amount of Rs. 40,000/- as loss of consortium along with interest thereupon be released to the LRs of petitioner no. 5 namely Janki Dass in equal proportions immediately on receipt of the award amount
42. It is clarified that the aforesaid amounts shall be released to all the petitioners only on submitting the copy of passbook of savings account in a bank near to their residence with endorsement of the bank that no cheque book facility and ATM card has been issued or if it has been issued the said ATM Card has been withdrawn and shall not be issued without the prior permission of this Tribunal.
43. The above FDRs shall be prepared with the following conditions as enumerated by the Hon'ble Delhi High Court vide orders dated 07.12.2018 & 08.01.2021 in FAO No. 842/2003 under the title Rajesh Tyagi & Ors. v. Jaivir Singh & Ors.:
(i) The bank shall not permit any joint name to MACT No.888/2022 Hazari Lal @ Rohtah vs. Mithun Kumar & Ors. Page 27 of 45 be added in the saving account or fixed deposit accounts of the claimants i.e. saving bank accounts of the claimants shall be an individual saving bank account and not a joint account.
(ii) Original fixed deposit shall be retained by the bank in safe custody. However, the statement containing FDR number, FDR amount, date of maturity and maturity amount shall be furnished by bank to the claimants.
(iii) The maturity amount of the FDRs be credited by the ECS in the saving bank account of the claimant near the place of their residence.
(iv) No loan, advance or withdrawal or premature discharge be allowed on the fixed deposits without the permission of the court.
(v) The concerned bank shall not issue any cheque book and/or debit card to claimants.
However, in case the debit card and/or cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount. The bank shall debit card(s) freeze the account of claimants so that no debit card be issued in respect of the account of claimants from any other branch of the bank.
(vi) The bank shall make an endorsement on the passbook of the claimant to the effect, that no cheque books and/or debit card have been issued and shall not be issued without the permission of the Court and the claimant shall produced the passbook with the necessary endorsement before the Court for compliance.
44. In compliance of the directions given by Hon'ble High Court in FAO No. 842/2003 dated 08.01.2021, Summary of the Award in the prescribed Format-XV is as under:
SUMMARY OF AWARD:MACT No.888/2022 Hazari Lal @ Rohtah vs. Mithun Kumar & Ors. Page 28 of 45
1. Date of Accident: 16.08.2022
2. Name of the deceased: Hazari Lal @ Rohtash
3. Age of the deceased: 48 years.
4. Occupation of deceased: Unskilled labour
5. Income of the deceased: Rs. 16,506/-
6. Name, Age and relationship of legal representatives of deceased:
S.No. Name of the claimant Relation with deceased
1. Rajni Devi Wife
2. Mohit Kumar Son
3. Hema Daughter
4. Heera Devi Mother
5. Janki Dass Father COMPUTATION OF COMPENSATION Sr. Head Awarded by the Claims No. Tribunal 1 Monthly Income of deceased Rs. 16,506/-
(A) 2 Add future prospect (B) @ 25%= 4,126.5/- 3 Less 1/3 deductions towards (16,506 +4126.5) x 1/3= personal and living expenses of Rs. 6,877.5/-
the deceased (C) 4 Monthly loss of dependency (16,506+4,126.5)-6,877.5= [(A+B) - C = D] Rs. 13,755/-
5 Annual loss of Dependency 13,755/- x 12= 1,65,060/-
(D x 12)
6 Multiplier (E) 13
MACT No.888/2022 Hazari Lal @ Rohtah vs. Mithun Kumar & Ors. Page 29 of 45
7 Total loss of dependency 1,65,060 x 13=
DxE=F Rs. 21,45,780/-
8 Medical Expenses (G) Nil.
9 Compensation for loss of love Nil.
and affection (H)
10 Compensation for loss of 40,000 x 5=2,00,000/-
consortium (I) to all the 05
petitioners
11 Compensation for loss of Rs. 15,000/-
Estate (J)
12 Compensation for funeral Rs. 15,000/-
expenses (K)
13 Total Compensation (F+I+J+K) Rs. 23,75,780/-
14 Rate of Interest Awarded 6%
15 Interest amount up to the date Rs. 1,87,686.62/-
of award (1 year and 3 months
and 24 days)
16 Total amount including interest Rs. 25,63,466.62/-
(rounded off to
Rs. 25,63,467/-)
17 Award amount released As per paragraph No.38-41
18 Award amount kept in FDRs As per paragraph No.38-41
19 Mode of disbursement of the As per paragraph No.38-41
award amount to the
claimant(s)
20 Next Date of compliance of the 07.04.2024
award
LIABILITY:
45. It has been established that the offending vehicle was being MACT No.888/2022 Hazari Lal @ Rohtah vs. Mithun Kumar & Ors. Page 30 of 45 driven by respondent no.1 Mithun Kumar and was owned by respondent no. 2 Mohan Lal. It is also established that the vehicle was insured with respondent no. 3, HDFC ERGO General Insurance Co.
46. This being so, Ld. Counsel for respondent no. 3 argued that respondent no. 2 had already expired but the offending vehicle was still in the name of the deceased respondent no. 2. He further argued that the insurance policies were regularly renewed in the name of the deceased respondent no. 2 and since there cannot be a contract with a deceased person, the insurance policy is not valid and thus, the respondent no. 3 is not liable to indemnify respondent no. 2. He further argued that the respondent no. 1 was driving the offending vehicle without a valid license and thus, for this reason also, the insurance company shall be absolved of all the liabilities.
47. On the other hand, Ld. Counsel for respondent no. 2 argued that Sh. Ganesh, the son of the deceased had informed the insurance company regarding the death of respondent no. 2 and yet they renewed the insurance policy. He further argued that the insurance company has taken due premium and thus, they are liable to indemnify respondent no.
2. Vis-a-vis the respondent no. 1 driving without license, it is the case of respondent no. 2 that they were not aware that respondent no. 1 has taken the offending vehicle and thus, the insurance company is liable to indemnify respondent no. 2.
48. From the above contentions, it emerges that the insurance company is seeking exemption from payment on two grounds. One, that MACT No.888/2022 Hazari Lal @ Rohtah vs. Mithun Kumar & Ors. Page 31 of 45 the insurance contract was with a deceased person and thus, the same is void and not enforceable. Secondly, the respondent no. 1 was driving without a valid driving license.
49. The key issue for determination in the first contention raised by the insurance company is whether the insurance company is obligated to compensate the injured party when the insurance contract was entered into in the name and on behalf of the deceased person. While determining the same, it is imperative to read the provisions of Contract Act along with the object of the MACT provisions. It cannot be denied that it is one of the essential conditions that the contract has to be entered into with a living being. Thus, any contract with a deceased person cannot be said to be a valid contract or in fact, any contract in the eyes of the law. However, in the present case, it is an established fact that it is Sh. Ganesh, the son of the deceased who was actually entering into the contract in the name of the deceased. It is also the contention of Sh. Ganesh that he had informed the insurance company regarding the death of his father (the insured) yet the insurance company renewed the contract. R3W1, Ms. Simarpreet Kaur who was examined on behalf of the insurance company has also deposed in her cross-examination that "I am not aware whether Ganesh son of the insured had informed the Insurance Company about his death." Thus, the possibility of the insurance company being aware of the death of respondent no. 2 cannot be ruled out. Moreover, the provisions of MACT are beneficial in nature that exist to protect the interests of the third party. For the present matter which purely relates to compensating the injured for the injuries suffered by him or the family of the deceased, the law as well as the provisions MACT No.888/2022 Hazari Lal @ Rohtah vs. Mithun Kumar & Ors. Page 32 of 45 have to be interpreted in a positive tone so as to advance the cause of justice.
50. While it is true that ignorance of law is no excuse and every person ought to know the basic provisions of law including that a dead person cannot enter into a valid contract but it cannot be denied that the general public in India is not aware enough to know the consequences of certain actions or inaction. From the entire conduct of the son of the insured in informing the insurance company about the death of his father as well as the fact that he kept getting the insurance renewed, one can easily infer that his intention to obtain insurance was bona fide. If his intention was mala fide, he would not have got the insurance policy renewed at all. His unawareness cannot be made a tool in this case to deny him a right to indemnity. The fact that the insurance company was receiving the premium amount is established and speaks out loud that the offending vehicle was insured.
51. Further, Ld. Counsel for respondent no. 2 also argued that it is the duty of the insurance company also to verify if the insured is dead or alive. He argued that the insurance company cannot be absolved of its liabilities because it is at equal fault that it kept renewing the policy in the name of the deceased person as long as it was receiving the premium. It is clear that respondent no. 3 has very clearly put the entire burden on the son of the insured that he did not inform the insurance company about the death of the insured while it is the case of the son of respondent no. 2 that he had informed the insurance company.
MACT No.888/2022 Hazari Lal @ Rohtah vs. Mithun Kumar & Ors. Page 33 of 4552. Whether it was the fault of the son of the insured that he did not get the vehicle transferred in his name and consequently the insurance policy transferred in his name or was it the fault of the insurance company that it failed to verify the fact about the life of the insured remains a mooted question but as far as the right of the third party is concerned, the offending vehicle cannot be termed to be uninsured. It is the duty of the insurance company to provide financial protection to the third party in case the offending vehicle meets an accident. This was also held so in the case of United India Insurance Co. Ltd. v. Santro Devi & others 2009 ACJ 570 wherein it was observed that:
"12. Indisputably, apart from raising a general and vague plea of fraud, no particulars thereof had been disclosed. The contract of insurance was entered into by the Bank with the appellant. The premium was paid by the bank. The contract of insurance might have been drawn in the name of the deceased Atma Ram Sharma but no witness has been examined on behalf of the appellant alleging that they were not aware thereabout.
13. When questioned, Mr. Mehra, very fairly stated that the insurance policy was an old one and it was being renewed from year to year. If the appellant had been renewing the insurance policy on year to year basis on receipt of a heavy amount of premium with the knowledge that the owner of the vehicle has expired and the name of his legal heirs and representatives had not been transferred in the registration book maintained by the aurhorities under the Motor Vehicles Act, in our opinion, the appellant cannot be heard to say that it was not bound to satisfy the claim of a third party.
14. The provisions of compulsory insurance have been framed to advance a social object. It is in a way part of the social justice doctrine. When a certificate of insurance is issued, in law, the MACT No.888/2022 Hazari Lal @ Rohtah vs. Mithun Kumar & Ors. Page 34 of 45 insurance company is bound to reimburse the owner. There cannot be any doubt whatsoever that a contract of insurance must fulfill the statutory requirements of formation of a valid contract but in case of a third party risk, the question has to be considered from a different angle.
...
19. We have noticed hereinbefore that no witness was examined on behalf of the appellant. Only a competent officer informed in the matter could have disclosed as to whether the widow of late Atma Ram Sharma had signed any document or whether the fact that Atma Ram Sharma had expired in the year 1991 came to be known to the officers of the appellant only after the accident had taken place. If despite knowledge of the fact that Atma Ram Sharma had died in the year 1991, the insurance company, with its eyes wide open, had been accepting the amount of premium every year from the widow of the said late Atma Ram Sharma or from the Bank, in our opinion, a contract by necessary implication, had come into being. Even in a case of this nature, the doctrine of 'acceptance sub silentio' shall be applicable.
...
22... Once a valid contract is entered into, only because of a mistake or otherwise, the name of the original owner has not been mentioned in the certificate of registration and/or the documents of hypothecation of the vehicle with the bank had still been continuing in his name, it cannot be said that the contact itself is void unless it was shown that in obtaining the said contract a fraud had been practised. Not only the particulars of fraud had not been pleaded, but even no witness was examined on behalf of the appellant. It cannot, thus, be said that a case of fraud in the matter of entering into the contract of insurance had been made out by the appellant."
53. The Hon'ble Supreme Court held that if the respondent had played fraud upon the insurance company, then in that scenario the MACT No.888/2022 Hazari Lal @ Rohtah vs. Mithun Kumar & Ors. Page 35 of 45 insurance company would not be liable to indemnify the owner but if no fraud has been played and the insurance company has duly received the premium, then the insurance company will have to compensate the injured person. In the present case, a question was put to R3W1 if the insurance company had filed any complaint of fraud against the LRs of respondent no. 2 to which the witness replied that she is not aware about the same. The insurance company respondent no. 3 has not filed any other document on record to prove that they have filed a fraud complaint against the LRs of respondent no. 2.
54. Thus, it is well established that the insurance company has not pleaded fraud against the LRs of respondent no. 2 in getting the insurance policies renewed in the name of a deceased person. It also stands established that son of the respondent no. 2 had informed the insurance company regarding the death of respondent no. 2 and the fact that it was informed to the insurance company has not been disputed by R3W1. Instead she has only stated that she is not aware. In view of the above discussion as well as the law laid down in the case of Santro Devi (Supra) this Tribunal is of the view that the insurance company is required to fulfill its contractual obligations by compensating the injured party. It is imperative to ensure that the victims of road accidents are not unduly penalized for circumstances beyond their control. Thus, respondent no. 3 insurance company shall pay the award amount to the petitioner.
55. The second contention of the insurance company is that if they are ordered to pay the award amount, then they should be given the MACT No.888/2022 Hazari Lal @ Rohtah vs. Mithun Kumar & Ors. Page 36 of 45 right to recover the same from respondent nos. 1 and 2 as respondent no. 1 was driving without a valid driving license. It has already been observed in the paragraphs above in decision to issue no. 5 that respondent no. 1 was driving the offending vehicle without a valid driving license. However, it is the case of respondent no. 2 that "the respondent Mithun Kumar/ driver took the scooty/ vehicle bearing no. DL-14'SF-3776 without any permission / consent of its owner Ganesh @ Sachin/ owner/ deponent on the day of accident was out of station. That deponent/ respondent state that Mithun Kumar / Driver is living in Ganesh @ Sachin house as a relative and not as tenant." Nothing adverse has come out in the cross-examination of Sh. Ganesh and in fact, he re-affirmed that "It is wrong to suggest that I had allowed the respondent no. 1 to drive the offending vehicle inspite of being aware that respondent no. 1 was not holding any driving license." Thus, it is the case of son of respondent no. 2 that he was out of station and was not aware that respondent no. 1 had taken his scooty. He has averred that he has not breached the terms of insurance and thus, the insurance company is liable to indemnify him.
56. The law with respect to the obligation of the insurance company to indemnify or not in cases where the driver did not have a valid driving license has been settled by Hon'ble Supreme Court of India in many cases. In the case of Skandia Insurance Co. Ltd. vs. Kokilaben Chandravadan and others (1987) 2 SCC 654, it was held as follows:
"14. Section 96(2)(b)(ii) extends immunity to the MACT No.888/2022 Hazari Lal @ Rohtah vs. Mithun Kumar & Ors. Page 37 of 45 insurance company if a breach is committed of the condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified from holding or obtaining a driving licence during the period of disqualification. The expression 'breach' is of great significance. The dictionary meaning of 'breach' is 'infringement or violation of a promise or obligation' (see Collins English Dictionary). It is therefore abundantly clear that the insurer will have to establish that the insured is guilty of an infringement or violation of a promise that a person who is duly licensed will have to be in charge of the vehicle. The very concept of infringement or violation of the promise that the expression 'breach' carries within itself induces an inference that the violation or infringement on the part of the promisor must be a wilful infringement or violation. If the insured is not at all at fault and has not done anything he should not have done or is not amiss in any respect how can it be conscientiously posited that he has committed a breach? It is only when the insured himself places the vehicle in charge of a person who does not hold a driving licence, that it can be said that he is 'guilty' of the breach of the promise that the vehicle will be driven by a licensed Driver. It must be established by the insurance company that the breach was on the part of the insured and that it was the insured who was guilty of violating the promise or infringement of the contract. Unless the insured is at fault and is guilty of a breach the insurer cannot escape from the obligation to indemnify the insured and successfully contend that he is exonerated having regard to the fact that the promisor (the insured) committed a breach of his promise. Not when some mishap occurs by some mischance. When the insured has done everything within his power inasmuch as he has engaged a licensed Driver and has placed the vehicle in charge of a licensed Driver, with the express or implied mandate to drive himself, it cannot be said that the insured is guilty of any breach."
57. It was further held in the case of Sohan Lal Passi v. P. Sesh MACT No.888/2022 Hazari Lal @ Rohtah vs. Mithun Kumar & Ors. Page 38 of 45 Reddy and others (2004) 3 SCC 297 as under:
"In other words, once there has been a contravention of the condition prescribed in sub- section (2)(b)(ii) of Section 96, the person insured shall not be entitled to the benefit of sub-section (1) of Section 96. According to us, Section 96(2)(b)(ii) should not be interpreted in a technical manner. Sub-section (2) of Section 96 only enables the insurance company to defend itself in respect of the liability to pay compensation on any of the grounds mentioned in sub-section (2) including that there has been a contravention of the condition excluding the vehicle being driven by any person who is not duly licensed. This bar on the face of it operates on the person insured. If the person who has got the vehicle insured has allowed the vehicle to be driven by a person who is not duly licensed then only that clause shall be attracted. In a case where the person who has got insured the vehicle with the insurance company, has appointed a duly licensed Driver and if the accident takes place when the vehicle is being driven by a person not duly licensed on the basis of the authority of the Driver duly authorised to drive the vehicle whether the insurance company in that event shall be absolved from its liability? The expression 'breach' occurring in Section 96(2)(b) means infringement or violation of a promise or obligation. As such the insurance company will have to establish that the insured was guilty of an infringement or violation of a promise. The insurer has also to satisfy the Tribunal or the court that such violation or infringement on the part of the insured was wilful. If the insured has taken all precautions by appointing a duly licensed Driver to drive the vehicle in question and it has not been established that it was the insured who allowed the vehicle to be driven by a person not duly licensed, then the insurance company cannot repudiate its statutory liability under sub-section (1) of Section 96."
58. From the combined reading of the above judgments, it is clear that the insurance company will be absolved of its liability to indemnify the owner only if it is established that the breach of the MACT No.888/2022 Hazari Lal @ Rohtah vs. Mithun Kumar & Ors. Page 39 of 45 insurance term and condition was wilful. However, in the present case, the son of respondent no. 2 has categorically deposed that respondent no. 1 was living as a relative in his house and he was not aware that while he is away, respondent no. 1 will take the keys of the offending vehicle and drive it away. He has also denied the suggestion that he was aware about respondent no.1 taking the offending vehicle. The insurance company has not led any evidence to affirmatively prove that the respondent no. 1 had taken the offending vehicle with the permission of son of respondent no. 2. Thus, it cannot be said that the son of the insured was aware regarding the respondent no. 1 taking the offending vehicle. In these circumstances, the insurance company has not been able to prove that the son of the respondent no. 2 has committed a willful breach of the terms of the insurance policy. Thus, the insurance company respondent no. 3 is held to be liable to indemnify the son of respondent no. 2 towards the claim amount. Their claim for right to recover the award amount from the respondents is rejected.
Issue No. 2 is accordingly decided in favour of the petitioner and against the respondents.
RELIEF:
59. In view of the above, the respondent no. 3 HDFC ERGO General Insurance Company Limited, is directed to deposit a sum of Rs. 23,75,780/- (Rupees Twenty Three Lakhs Seventy Five Thousand Seven Hundred & Eighty only) along with interest @ 6 % from the date of filing of DAR i.e. 11.11.2022 with the Civil Nazir of this Tribunal within 30 days under intimation to the claimants, MACT No.888/2022 Hazari Lal @ Rohtah vs. Mithun Kumar & Ors. Page 40 of 45 failing which insurance company shall be liable to pay interest @ 7.5 % per annum for the period of delay beyond 30 days.
60. Ahlmad is directed to e-mail an authenticated copy of the award to the insurance company for compliance within the time granted as directed by the Hon'ble Supreme Court of India in WP (Civil) No. 534/2020 titled as Bajaj Allianz General Insurance Co. Pvt. Ltd. Vs. Union of India & Ors. on 16.03.2021. The said respondent is further directed to give intimation of deposit of the compensation amount to the claimant and shall file a compliance report with the Claims Tribunal with respect to the deposit of the compensation amount within 15 days of the deposit with a copy to the Claimant and his counsel.
Ahlmad shall also e-mail an authenticated copy of the award to Branch Manager, SBI, Tis Hazari Courts for information.
A copy of this award be forwarded to the parties free of cost.
Ahlmad is directed to send the copy of the award to Ld. Metropolitan Magistrate concerned and Delhi Legal Services Authority in view of Central Motor Vehicles (fifth Amendment) Rules, 2022 [(Directions at serial nos. 39, 40 of Procedure for Investigation of Motor Vehicle Accidents (under Rule 150A)].
Civil Nazir is directed to place a report on record on 07.04.2024 in the event of non-receipt/deposit of the compensation amount within the time granted.
Further Nazir is directed to maintain the record in Form XVIII in view of Central Motor Vehicles (fifth Amendment) Rules, MACT No.888/2022 Hazari Lal @ Rohtah vs. Mithun Kumar & Ors. Page 41 of 45 2022 [(Directions at serial no. 41 of Procedure for Investigation of Motor Vehicle Accidents (under Rule 150A).
Ahlmad is further directed to comply with the directions passed by the Hon'ble High Court of Delhi in MAC APP No. 10/2021 titled as New India Assurance Company Ltd. Vs. Sangeeta Vaid & Ors., date of decision : 06.01.2021 regarding digitisation of the records.
File be consigned to Record Room after due compliance.
Digitally signed by RUCHI AGGARWAL RUCHI Announced in the open Court on ASRANI AGGARWAL Date: ASRANI this 7th day of March, 2024. 2024.03.07 17:17:01 +0530 (Dr. RUCHI AGGARWAL ASRANI PO, MACT-01, Central District, Tis Hazari Courts, Delhi. MACT No.888/2022 Hazari Lal @ Rohtah vs. Mithun Kumar & Ors. Page 42 of 45 FORM - XVII
COMPLIANCE OF THE PROVISIONS OF THE SCHEME TO BE MENTIONED IN THE AWARD 1 Date of Accident 16.08.2022 2 Date of filing of Form-I -
First Accident Report 17.08.2022
(FAR)
3 Date of delivery of Form-II
to the victim(s) Not attached
4 Date of receipt of Form-III
from the Driver 01.10.2022
5 Date of receipt of Form-IV
from the Owner 01.10.2022
6 Date of filing of the Form-
V - Interim Accident 01.10.2022
Report (IAR)
7 Date of receipt of Form- 11.11.2022
VIA and Form VIB from
the Victim(s)
8 Date of filing of Form-VII
- Detail Accident Report 11.11.2022
(DAR)
9 Whether there was any
delay or deficiency on the
part of the Investigating No.
Officer? If so, whether any
action/direction warranted?
10 Date of appointment of the
Designated Officer by the Not mentioned
Insurance Company
11 Whether the Designated
Officer of the Insurance Yes.
MACT No.888/2022 Hazari Lal @ Rohtah vs. Mithun Kumar & Ors. Page 43 of 45
Company admitted his
report within 30 days of the
DAR?
12 Whether there was any
delay or deficiency on the No.
part of the Designated
Officer of the Insurance
Company? If so, whether
any action/direction
warranted?
13 Date of response of the No response.
claimant(s) to the offer of
the Insurance Company.
14 Date of award 07.03.2024
15 Whether the claimant(s)
were directed to open Yes.
savings bank account(s)
near their place of
residence?
16 Date of order by which
claimant(s) were directed to
open Savings Bank 11.11.2022
Account(s) near his place of
residence and produce PAN
card and Aadhaar Card and
the direction to the bank not
to issue any cheque
book/debit card to the
claimant(s) and make an
endorsement to this effect
on the passbook(s).
17 Date on which the 15.01.2024
claimant(s) produced the
passbook of their savings
bank account(s) near the
place of their residence
MACT No.888/2022 Hazari Lal @ Rohtah vs. Mithun Kumar & Ors. Page 44 of 45
alongwith the endorsement,
PAN card and Aadhaar
Card?
18 Permanent residential
address of the claimant(s). As per Award
19 Whether the claimant(s)
savings bank account(s) is
Yes.
near their place of
residence?
20 Whether the Claimant(s)
were examined at the time Yes. Financial statements of the of passing of the Award to petitioners were recorded on ascertain his/their financial 15.01.2024.
condition?
Digitally signed by RUCHI RUCHI AGGARWAL
AGGARWAL ASRANI
ASRANI Date:
2024.03.07
17:17:14 +0530
(Dr. Ruchi Aggarwal Asrani)
PO, MACT-01 (Central),
Tis Hazari Courts, Delhi.
07.03.2024
MACT No.888/2022 Hazari Lal @ Rohtah vs. Mithun Kumar & Ors. Page 45 of 45