Delhi District Court
Sh. Rameshwar vs Sh. Dinesh on 10 May, 2018
MACP No. 5182/16 (Old No. M46D/13) FIR No. 208/13.; PS Narela DOD: 10.05.2018
IN THE COURT OF SH. VIDYA PRAKASH, PRESIDING OFFICER,
MOTOR ACCIDENT CLAIMS TRIBUNAL, ROHINI COURTS, DELHI
MAC Petition No. 5182/16 (Old MAC Petition No. M46D/13)
1. Sh. Rameshwar
S/o Sh. Chhotey
(Father of deceased)
2. Smt. Rameshwari
W/o Sh. Rameshwar
(Mother of deceased)
3. Sh Ravinder
S/o Sh Rameshwar
(Brother of deceased)
All R/o: H.No. 978, SectorA6,
Narela, Delhi.
AND
Sh. Deepak
S/o Sh. Sagar,
R/o H.No. 1279, Pocket11,
Sector A6, Narela, Delhi.
................Petitioners
VERSUS
1. Sh. Dinesh
S/o Sh. Rattan Singh
R/o VPO, Karak Gagar,
PS Pillu Khera,
Distt. Jind, Haryana.
(Driver)
2. Sh. Yashpal
S/o Sh.Raghubir Singh,
R/o H.No. 71, Block No. 1,
Villaged Shera PS Matloda,
Distt. Panipat, Haryana.
(Regd owner)
Sh. Rameshwar & Ors Vs. Dinesh & Ors. Page 1 of 31
MACP No. 5182/16 (Old No. M46D/13) FIR No. 208/13.; PS Narela DOD: 10.05.2018
3. Tata AIG General Insurance Company Ltd.
Lotus Towers, First Floor, Community Centre,
New Friends Colony, New Delhi.
(Insurer) ...............Respondents
Date of Institution : 03.06.2013 Date of Arguments : 25.04.2018 Date of Decision : 10.05.2018
APPEARANCES: Sh. Dharmender Kumar Adv for petitioners.
Sh. Sanjeev Chauhan Adv for respondents no. 1 & 2.
Sh. Pradeep Sehrawat Adv for respondent no. 3.
Petition under Section 166 & 140 of M.V. Act, 1988 for grant of compensation AWARD
1. Sh. Dharmender Kumar had suffered fatal injuries and Sh Deepak had sustained injuries in Motor Vehicular Accident which occurred on 01.04.2013 at 5.00 pm involving Truck bearing registration no. HR69B 6000 (alleged offending vehicle) being driven in rash and negligent manner and without following traffic rules by respondent no. 1. The petitioners are seeking compensation in the wake of Detailed Accident Report (DAR) filed by the police corresponding to the investigation carried out in FIR no. 208/13 U/s 279/337/304A IPC registered at PS Narela with regard to the said accident. DAR was treated as claim petition U/s 166(4) of M.V Act.
2. It is averred in the DAR petition that on 01.04.2013 at about 5.00 pm, Dharmender Kumar (since expired) was sitting as pillion rider on motorcycle bearing registration no. DL8SNC6283 which was being driven by his friend Sh Deepak (PW2). All of a sudden, one Truck bearing registration no. HR69B6000 came from their behind while being driven in rash and negligent manner by its driver i.e. respondent no. 1 and hit against their motorcycle, due to which, both of them fell down on the road and sustained injuries. Dharmender Kumar was crushed under the wheels of the Sh. Rameshwar & Ors Vs. Dinesh & Ors. Page 2 of 31 MACP No. 5182/16 (Old No. M46D/13) FIR No. 208/13.; PS Narela DOD: 10.05.2018 said truck and died on the spot, whereas injured Deepak was removed to SRHC Hospital, Narela. It is claimed that the aforesaid offending truck was found to be owned by respondent no. 2 and it was insured with Tata AIG General Insurance Co Ltd./respondent no. 3 during the period in question.
3. The respondents no. 1 & 2 i.e. driver and regd owner have filed joint WS, wherein they have claimed that the alleged offending truck was duly insured with respondent no. 3 during the period in question and it was having valid fitness and National Permit as on the date of accident. Thus, they are not liable to pay the compensation amount. It is further claimed that on 01.04.13, R1 was employed with R2 as driver and said respondent was holding valid DL no. 2446/TV/Z/2011 having validity upto 04.02.14. They have also claimed that there was no rash or negligent driving on the part of R1 on the date of alleged accident.
4. Respondent no. 3/insurance company has filed its WS taking statutory defence as provided in Section 149(2) M.V Act on the ground that as per verification report of permit in respect of alleged offending vehicle filed by IO alongwith DAR, same was not valid for area of Delhi and thus, there is breach in the terms and conditions of Insurance Policy on the part of insured. However, it has not denied that Truck bearing registration no. HR69B6000 was insured with it in the name of respondent no. 2, vide insurance policy having validity from 31.03.12 to 30.03.13.
5. From pleadings of the parties, the following issues were framed by Ld Predecessor vide order dt. 17.07.2013:
1)Whether the petitioner received injuries in the road side accident occurred on 01.04.2013 at 5.00 pm in front of Vardhman Mall SecA6, Main Road Narela, Delhi due to rash and negligent driving of R1/driver of offending vehicle No. HR69B6000 truck?
OPP.
Sh. Rameshwar & Ors Vs. Dinesh & Ors. Page 3 of 31MACP No. 5182/16 (Old No. M46D/13) FIR No. 208/13.; PS Narela DOD: 10.05.2018
2) Whether the petitioner is entitled for compensation as prayed for, if so to what extent and from which of the respondents?
OPP
3) Relief.
6. Before proceeding further, it may be noted that due to inadvertence relevant issue with regard to fatal injury sustained by Dharmender Kumar could not be framed at the appropriate stage. It was fairly conceded on behalf of both the sides that relevant issue in this regard may be framed as both the sides have already led their respective evidence during the course of inquiry even on the said issue. Hence, the following additional issue is hereby framed: 1A) Whether Dharmender Kumar had received fatal injuries in the road side accident occurred on 01.04.2013 at 5.00 pm in front of Vardhman Mall SecA6, Main Road Narela, Delhi due to rash and negligent driving of R1/driver of offending vehicle i.e. Truck No. HR69B6000 , owned by Yashpal /respondent no. 2 and which was insured with Tata AIG General Insurance Co. Ltd./R3?OPP.
7. In support of their claim, the petitioners have examined two witnesses i.e. PW1 Sh. Rameshwar (father of deceased) and PW2 Sh. Deepak. They closed their evidence through their counsel on 16.04.2014. On the other hand, the respondent no. 1 preferred not to lead any evidence despite grant of opportunity. However, the respondent no. 2 has examined only himself as RW2, whereas respondent no. 3/insurance co has examined three witnesses i.e. R3W1 Sh Sushil Monga, Administrative Officer, R3W2 namely Ms. Namrata Dawar and R3W3 Sh Abhishek Kujur, Manager (Legal).
8. I have already heard the arguments addressed by ld counsels Sh. Rameshwar & Ors Vs. Dinesh & Ors. Page 4 of 31 MACP No. 5182/16 (Old No. M46D/13) FIR No. 208/13.; PS Narela DOD: 10.05.2018 for the parties. I have also gone through the record. Both the sides were directed to submit their respective submissions in Form IV A/IV B vide order dated 25.04.2018. However, none of the parties submitted the same on record till date. My findings on the issues are as under: Issues No. 1 & 1A
9. Both these issues are being taken up together as they are inter connected. For the purpose of both these issues, the testimony of PW2 Sh. Deepak is relevant. He deposed in his evidence by way of affidavit (Ex. PW2/A) that on 01.04.2013 at about 5.00 pm, he was going on his motorcycle bearing no. DL8SNC6283 towards Market from his residence alongwith Dharmender Kumar (since expired) who was sitting as Pillion rider on his said motorcycle. When they reached opposite Vardhman Mall, Sector A6/Main Road, Narela, suddenly, one Truck bearing registration no. HR69B6000 while being driven in rash and negligent manner by its driver, came and hit against his motorcycle with great force. Due to said forceful impact, he alongwith Dharmender Kumar fell down on the road. He further deposed that Dharmender Kumar was crushed under the wheels of the said truck and died at the spot. He also deposed that he was removed to SRHC Hospital, where his MLC was prepared.
10. During his cross examination on behalf of respondents, he admitted that there was distance of 45 meters between his house and the house of deceased Dharmender Kumar. On the day of accident, they were going to Narela Market. He was driving the motorcycle at normal speed of 35 kmph. He admitted that the accident took place at about 5.00 pm in the evening. He also admitted that the offending truck had hit the motorcycle at its rear portion and also admitted that there was no red light near the spot. He also deposed that site plan ( Mark X) was correct as per the site. He denied the suggestion that he was driving the motorcycle at high speed at the time of accident or that his motorcycle suddenly came in front of the Sh. Rameshwar & Ors Vs. Dinesh & Ors. Page 5 of 31 MACP No. 5182/16 (Old No. M46D/13) FIR No. 208/13.; PS Narela DOD: 10.05.2018 offending truck or that accident occurred at Tpoint and not opposite Vardhman Mall. He volunteered that the offending vehicle had hit from the behind. He admitted that neither he nor his pillion rider were wearing helmet. He denied the suggestion that he did not have any DL or that accident occurred due to his rashness and negligence or that driver of the offending vehicle had applied emergency brakes or blew horn to avoid the accident.
11. It is quite evident from the aforesaid discussion that the respondents have not been able to impeach the testimony of PW2 Sh Deepak despite the fact that he was cross examined at length. The presence of said witness at the place of accident, stands established from the fact that he himself is also shown to have sustained the injuries due to the impact of the accident in question. Even otherwise, the respondents no. 1 & 2 themselves have given suggestions to this witness that since the offending vehicle had hit him from behind, he could not see the driver of the offending vehicle. This suggestion would leave no scope of doubt that this witness had seen the accident taking place.
12. Apart from above, FIR No.208/13 supra ( which is part of DAR Ex PW1/5 colly), is shown to have been registered on the basis of statement made by complainant Sh Triloki Nath Dubey to the police. The contents of said FIR would reveal that the complainant therein has narrated the same sequence of facts leading to the accident in question, as deposed by PW2 during the course of inquiry. Moreover, the respondents have not led any evidence in order to controvert the testimony of PW2 during the course of inquiry. Thus, there is no reason to disbelieve the testimony of this witness made on oath.
13. It is pertinent to note that the respondent no.1/driver was the material witness to throw light by testifying as to how and under what circumstances, the accident had taken place. However, he preferred not to enter into witness box during the course of inquiry. Thus, an adverse Sh. Rameshwar & Ors Vs. Dinesh & Ors. Page 6 of 31 MACP No. 5182/16 (Old No. M46D/13) FIR No. 208/13.; PS Narela DOD: 10.05.2018 inference is liable to be drawn against him to the effect that the accident in question occurred due to rash and negligent driving of Truck bearing registration no. HR69B6000 by him.
14. No doubt, the respondent no. 2 has examined himself as RW2 and has deposed in his evidence by way of affidavit ( Ex. RW2/A) that there was no negligence or rash driving on the part of R1, which can be attributed to be the cause of accident in question. However, said part of his testimony is totally irrelevant and cannot be taken into consideration for the simple reason that he was undisputedly not present at the spot when the accident took place. Even otherwise, RW2 admitted during his cross examination that the aforesaid truck was got released on superdari by him and criminal case was pending trial against R1 who was released on bail. Not only this, RW2 also admitted that the said truck was being driven by R1 at the time of accident and he did not file any complaint against IO before any Higher Authority for false implication of R1 in criminal case. Said part of his testimony actually corroborates the ocular testimony of PW2 as discussed above.
15. Moreover, it is an undisputed fact that FIR no. 208/13 (supra) was registered at PS Narela with regard to accident in question. Copy of said FIR as also the copy of charge sheet arising out of said FIR (which are part of DAR Ex. PW1/5 colly), would show that FIR was registered on 01.04.13 i.e. on the date of accident itself. 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 Truck bearing registration no. HR69B6000 at the instance of petitioners herein. Not only this, the respondent no. 1 namely Dinesh S/o Sh. Rattan Singh (accused in State case) has been charge sheeted for offences punishable U/s 279/338/304A IPC by the investigating agency after arriving at the conclusion on the basis of investigation carried out by it that the accident in Sh. Rameshwar & Ors Vs. Dinesh & Ors. Page 7 of 31 MACP No. 5182/16 (Old No. M46D/13) FIR No. 208/13.; PS Narela DOD: 10.05.2018 question had occurred due to rash and negligent driving of Truck bearing registration no. HR69B6000 by him. Same would also point out towards rash and negligent driving of aforesaid truck by the respondent no. 1.
16. Not only this, copy of MLC of Deepak (which is part of DAR Ex. PW1/5 colly) prepared at SRHC Hospital, Narela, would show that he had been removed to said hospital on 01.04.13 at 5.30 pm with alleged history of RTA. Further, copy of PM Report of Dharmender Kumar prepared at Mortuary of BJRM Hospital (which is also part of DAR Ex PW1/5 colly), would show that cause of death of deceased Dharmender Kumar is opined due to cranio cerebral damage consequent upon crush injury over head and face. All the injuries were ante mortem and caused by run over by a heavy vehicle in a road traffic accident. The external injuries as noted in the Autopsy Report, are also consistent with the injuries which are sustained in Motor Vehicular Accident. Said documents have not been disputed from the side of respondents and corroborate the ocular testimony of PW2 as discussed above.
17. Copy of Mechanical inspection report dated 02.04.13 (which is part of DAR Ex. PW1/5 colly.) of Truck bearing registration no. HR69B 6000, would show fresh damages i.e. its front bumper from its left side corner was found slightly scratched and its left front wheel tyre was found scratched. Similarly, copy of Mechanical Inspection report dt. 02.04.13 (which is part of DAR Ex. PW1/5 colly) of motorcycle bearing no. DL8SNC 6283 of Deepak, would show fresh damage i.e. its left side leg guard was found scratched and bended, its left side body was found scratched, its handle was found scratched and damaged from its left side and its petrol tank was found scratched and dented from its left side. Furthermore, the aforesaid vehicles are shown to have been seized by police from the place of accident itself on 01.04.13 i.e. on the date of accident itself, as per copies of their respective seizure memos (which are also part of DAR Ex PW1/5 Sh. Rameshwar & Ors Vs. Dinesh & Ors. Page 8 of 31 MACP No. 5182/16 (Old No. M46D/13) FIR No. 208/13.; PS Narela DOD: 10.05.2018 colly). Same would show that the accident was caused by the aforesaid truck against the motorcycle of the victims.
18. 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 preponderance of probabilities that Dharmender Kumar had sustained fatal injuries and Deepak had sustained injuries in road accident which took place on 01.04.2013 at 5.00 pm in front of Vardhman Mall, Sec A6, Main Road, Narela, Delhi due to rash and negligent driving of Truck bearing registration no. HR69B6000 by respondent no. 1. Thus, both these issues are decided in favour of petitioners and against the respondents.
ISSUE NO. 219. 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 FOR DEATH OF DHARMENDER KUMAR LOSS OF DEPENDENCY
20. As already stated above, the claimants are the parents and brother of deceased. PW1 Sh. Rameshwar (father of deceased) has deposed in his evidence by way of affidavit (Ex. PW1/A) that deceased was aged 21years; he was a student and was doing part time Electric Job in private sector and was earning Rs. 12,500/ per month at the time of accident. He has relied upon the following documents: Sr. No. Description of documents Remarks
1. Copies of dead body receipt, Ex PW1/1 (colly.) Death Certificate & Cremation Certificate Sh. Rameshwar & Ors Vs. Dinesh & Ors. Page 9 of 31 MACP No. 5182/16 (Old No. M46D/13) FIR No. 208/13.; PS Narela DOD: 10.05.2018
2. Copies of Qualification Ex. PW1/2 (colly.) Certificates & Identity Card of deceased
3. Copy of Cremation Receipt Ex PW1/3
4. Copies of Identity Cards of Sh Ex PW1/4 Rameshwar,Smt. Rameshwari and copy of Aadhar Card of Sh. Ravinder
5. DAR Ex. PW1/5 (colly.)
21. During his cross examination, he deposed that he had not filed any document showing that his deceased son was earning Rs. 12,500/ per month at the time of accident. He further deposed that deceased was a freelancer working at the shop of some other person but he could not disclose the name of the said shop. He further deposed that deceased was studying in Govt school. He denied the suggestion that deceased was not working part time or that he was not earning Rs. 12,500/ per month. He also denied the suggestion that his wife and younger son Ravinder were not financially dependent upon income of deceased at the time of accident. He admitted that no document was filed on record to show that deceased was studying in any school at the time of accident.
22. 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.
23. As already noted above, PW1 Sh Rameshwar who is father of deceased, admitted during his cross examination that he did not have any documentary proof to show that deceased was earning Rs. 12,500/ per month at the time of accident. However, the petitioners have filed copy of Sh. Rameshwar & Ors Vs. Dinesh & Ors. Page 10 of 31 MACP No. 5182/16 (Old No. M46D/13) FIR No. 208/13.; PS Narela DOD: 10.05.2018 Matriculation Certificate ( Ex. PW1/2 ) in respect of deceased Dharmender Kumar. Hence, the monthly income of deceased has to be assessed as that of Matriculate under Minimum Wages Act applicable during the period in question. The Minimum Wages of Matriculate were Rs. 9386/ per month at the time of accident, which is 01.04.13.
24. PW1, who is father of deceased, has categorically testified that age of deceased was 21 years at the time of accident. The date of birth of deceased is recorded as 01.07.91 in copy of his Matriculation Certificate (Ex. PW1/2). Accordingly, the age of deceased comes out to somewhere between 2122 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.
25. Considering the fact that deceased is claimed to be self employed and there being no cogent evidence that he was having permanent job, 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.
26. Keeping in view the fact that there was one dependent ( there being no cogent evidence on record to show that father and sibling i.e. petitioner no. 3 were financially dependent upon deceased) at the time of accident, there has to be deduction of one half as held in the case of Pranay Sethi mentioned supra. Thus, the total of loss of dependency would come out to Rs. 14,19,163/ (Rs. 9386/ X 1/2 X 140/100 X 12 X 18). Hence, a Sh. Rameshwar & Ors Vs. Dinesh & Ors. Page 11 of 31 MACP No. 5182/16 (Old No. M46D/13) FIR No. 208/13.; PS Narela DOD: 10.05.2018 sum of Rs. 14,19,163/ is awarded under this head in favour of the petitioners.
LOSS OF LOVE & AFFECTION
27. 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 ESTATE & FUNERAL EXPENSES
28. In view of the facts and circumstances of the present case and in view of decision of Hon'ble Apex Court in the case of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors." mentioned supra, a sum of Rs. 15,000/ each is awarded in favour of petitioners on account of loss of estate and funeral expenses.
The total compensation is assessed as under:
1. Loss of dependency Rs. 14,19,163/
2. Loss of Estate & Funeral Rs. 30,000/ Expenses Total Rs. 14,49,163/ Rounded Off to Rs. 14,50,000/ COMPENSATION FOR INJURIES SUSTAINED BY DEEPAK MEDICAL EXPENSES
29. PW2 Deepak i.e. the injured himself has deposed in his evidence by way of affidavit ( Ex. PW2/A) that due to the accident, he had Sh. Rameshwar & Ors Vs. Dinesh & Ors. Page 12 of 31 MACP No. 5182/16 (Old No. M46D/13) FIR No. 208/13.; PS Narela DOD: 10.05.2018 sustained head injury and multiple ribs fracture of left side. After his initial medical examination from SRHC Hospital, he was shifted to LNJP Hospital. Thereafter, he remained admitted in Dr. Mukesh Orthopedic & Trauma Centre from 01.04.13 till 10.04.13 and even after his discharge from the said hospital, he had received medical treatment as OPD patient not only from said hospital but also from AIIMS. He deposed to have incurred a sum of Rs. 40,952/- on his medical treatment. He has relied upon medical treatment record as Ex. PW2/1 (colly) and Ex. PW2/2 (colly) and medical bills as Ex. PW2/3 (colly). During his crossexamination, he denied the suggestion that he did not receive any injury due to the accident or that the bills relied by him, were fabricated. He admitted that his father was a Government employee but feigned ignorance if the medical expenses were reimbursed to his father from his Department.
30. It is quite evident from the aforesaid discussion that there is no challenge with regard to the authenticity and genuineness of medical bills ( Ex. PW2/3 colly) from the side of respondents. Although, it has come on record that father of injured is Government employee but there is nothing on record to show that the amount incurred on medical treatment of injured, was reimbursed to his father from his employer. It was for the respondents to lead relevant evidence by summoning the employer of father of injured, to establish that if any amount was reimbursed to him. Having not done so, it cannot be said that any such amount would have been reimbursed to father of injured by his employer. Hence, a sum of Rs. 40,952/- is awarded in favour of injured Deepak under this head.
Loss of Studies/income
31. PW2 Sh Deepak has deposed that he was a student at the time of accident. He was bed ridden for about five months due to the accident and he was advised complete bed rest by the doctor. He has relied upon Sh. Rameshwar & Ors Vs. Dinesh & Ors. Page 13 of 31 MACP No. 5182/16 (Old No. M46D/13) FIR No. 208/13.; PS Narela DOD: 10.05.2018 copy of Marksheet of 12th class as Ex. PW2/4. He also deposed that he could not attend his classes for about three months due to the accident in question. During his cross examination, he admitted that he was a student and he was not earning. He further deposed that he had last exam on 03.04.13 but could not appear in the said exam due to the accident. He had collected Certificate of 12th class from school by visitng the school alongwith his younger brother.
32. During the course of arguments, counsel for injured conceded that injured could not study for about 3 months due to the injuries sustained by him in the accident in question, but there was no loss of Academic Session. He therefore, urged that appropriate compensation amount may be awarded to him under this head. On the other hand, counsel for insurance company argued that since there is no loss of any academic session, no amount of compensation should be awarded under this head.
33. As regards the contention that injured suffered loss of studies, it stands established on record that injured Deepak was a student of 12 th class at the time of accident. He had received medical treatment from various hospitals i.e. SRHC Hospital, LNJP Hospital, Dr. Mukesh Orthopedic & Trauma Centre ( where he remained admitted from 01.04.13 to 10.04.13) and AIIMS. His medical treatment record ( Ex. PW2/1 colly and Ex. PW2/2 colly) would show that his treatment continued for considerable period. The last OPD receipt as available on record is dated 23.09.13 issued by Dr. Mukesh Orthopedic & Trauma Centre. It is also quite evident from the perusal of medical treatment record, as already described above that injured Deepak had sustained head injury as well as multiple fracture of rib of left side.
34. One cannot loose sight of the fact that the petitioner Deepak who was a student of 12 th class, would have to make up for the loss of his studies for the aforesaid period, in remaining part of the academic session Sh. Rameshwar & Ors Vs. Dinesh & Ors. Page 14 of 31 MACP No. 5182/16 (Old No. M46D/13) FIR No. 208/13.; PS Narela DOD: 10.05.2018 either by spending extra hours in a day on his studies and/or to take the services of tutor so that he may not have to suffer loss of academic session. Hence, I am of the considered opinion that he is entitled to notional amount of compensation under this head. Thus, a notional sum of Rs. 50,000/ is awarded in favour of petitioner Deepak and against the respondents under this head.
PAIN AND SUFFERING
35. As per discharge summary (which is part of Ex. PW2/1 colly), injured Deepak had sustained head injury as well as fracture of rib of left side due to the accident in question. He was of tender age of less than 18 years ( his date of birth being 05.09.95 as per copy of PAN Card, which is part of DAR Ex. PW1/5 colly and date of accident being 01.04.13) at the time of accident. His medical treatment, as already noted above, continued for a considerable period. This fact stands proved from the medical treatment record (which are Ex. PW2/1 colly and Ex. PW2/2 colly). In view of the nature of injuries suffered by injured Deepak and his medical treatment record referred to above, he would have definitely suffered great mental shock, pain and agony on account of the injuries sustained by him due to the accident in question. Keeping in view the medical treatment record of petitioner available on record and after considering the nature of injuries suffered by him, I hereby award a notional sum of Rs. 50,000/ towards pain and sufferings to him.
LOSS OF GENERAL AMENITIES AND ENJOYMENT OF LIFE
36. As already mentioned above, there is sufficient evidence on record to establish that the petitioner had sustained head injury as well as fracture of rib of left side due to accident in question and his medical treatment continued for a considerable period. Thus, he would not have Sh. Rameshwar & Ors Vs. Dinesh & Ors. Page 15 of 31 MACP No. 5182/16 (Old No. M46D/13) FIR No. 208/13.; PS Narela DOD: 10.05.2018 been able to enjoy general amenities of life after the accident in question, during the period till which is treatment continued and quality of his life has been definitely affected by the same. In view of the nature of injuries including permanent disability suffered by him and his continued treatment for considerable period, I award a notional sum of Rs. 25,000/ towards loss of general amenities and enjoyment of life to the petitioner.
CONVEYANCE, SPECIAL DIET AND ATTENDANT CHARGES
37. PW2 Sh Deepak has deposed that he had spent Rs. 30,000/ on special diet, Rs. 15,000/ on attendant and Rs. 20,000/ on conveyance. However, he has failed to lead any cogent evidence on record in this regard. At the same time, it cannot be overlooked that injured Deepak had sustained Head injury apart from fracture of rib of left side due to accident in question. 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 Rs. 10,000/ each for special diet and attendant charges to the petitioner.
Thus, t he total compensation is assessed as under:
1. Medical Expenses Rs. 40,952/-
2. Loss of Studies/income Rs. 50,000/
3. Pain & Suffering Rs. 50,000/
4. Loss of general amenities & Rs. 25,000/ Sh. Rameshwar & Ors Vs. Dinesh & Ors. Page 16 of 31 MACP No. 5182/16 (Old No. M46D/13) FIR No. 208/13.; PS Narela DOD: 10.05.2018 enjoyment of life
5. Conveyance, Special diet & Rs. 25,000/ Attendant Charges Total Rs. 1,90,952/ Rounded off to Rs. 1,91,000/
38. Now, the question which arises for determination is as to which of the respondents is liable to pay the compensation amount. Ld counsel for insurance company tried to avoid the liability of insurance company on the ground that previous insurance policy furnished by insured/R2 was fake and thus, there was concealment of material facts on the part of insured. He further argued that there was no valid permit for the State of Delhi in respect of offending vehicle as on the date of accident, which also constitutes fundamental breach in terms and conditions of insurance policy on the part of insured. Hence, the insurance company is entitled to be absolved from payment of compensation amount. In this regard, he relied upon the relevant portion of cross examination of RW2 (insured) as well as the testimonies of R3W1 to R3W3 examined by insurance co during the course of inquiry.
39. Per contra, counsel for insured/R2 vehemently argued that there was no fundamental breach in the terms and conditions of insurance policy on the part of insured and insurance company is liable to pay the compensation amount. He also argued that even if there is no valid permit in respect of offending vehicle, insurance company should not be allowed to avoid its liability to pay the compensation amount. He further submitted that award has been passed by another Claims Tribunal, Panipat with regard to claim petition arising out of some other accident and insurance company has been directed to pay the compensation amount therein. The certified copy of said award dt. 13.05.15 has also been placed on record.
Sh. Rameshwar & Ors Vs. Dinesh & Ors. Page 17 of 31MACP No. 5182/16 (Old No. M46D/13) FIR No. 208/13.; PS Narela DOD: 10.05.2018
40. I have gone through the certified copy of award dt. 13.05.15 (supra) relied on behalf of R2. However, the facts of the said case are entirely distinguishable from the facts of the present case inasmuch as in the cited award, the insurance company had raised statutory defence that the driver of offending vehicle was not holding valid and effective DL as on the date of accident and had also raised pleas that deceased himself was driving the motorcycle in rash and negligent manner and was also not holding valid DL and had also denied factum of insurance for want of confirmation of policy from its concerned issuing office. In other words, the points in issue raised on behalf of insurance co in the present case, were not the subject matter of cited decision of Claims Tribunal. Hence, the respondent no. 2/insured cannot be allowed to derive any mileage from the said decision. This is apart from the fact that decision in the cited award, does not have any binding effect upon this Claims Tribunal.
41. Firstly, I shall deal with the first bone of contention raised on behalf of insurance company that since previous insurance policy produced by insured was fake, it constitutes fundamental breach in the terms and conditions of the insurance policy for the period in question on the part of insured i.e. respondent no. 2 herein. Counsel for insurance company vehemently argued that previous insurance policy on the basis of which insurance policy for the period in question in respect of offending vehicle, had been issued, was found to be fake. Therefore, the insurance policy for the current period is voidabinitio in view of Section 149 (2) (b) of M.V Act. For this purpose, he heavily relied upon the testimonies of R3W1 namely Sh Sushil Monga, Admn Officer, United Indian Insurance Co Ltd, R3W2 Ms. Namrata Dawar Senior Executive of Tata AIG General Insurance Company Ltd as well as that of R3W3 namely Sh Abhishek Kujur, Manager (Legal), IFFCO Tokio General Insurance Co Ltd.
42. On the other hand, counsel for respondents no. 1 & 2 Sh. Rameshwar & Ors Vs. Dinesh & Ors. Page 18 of 31 MACP No. 5182/16 (Old No. M46D/13) FIR No. 208/13.; PS Narela DOD: 10.05.2018 vehemently argued that insurer had issued valid insurance policy for the period in question in respect of offending vehicle, after satisfying itself with all the legal requirements including the validity of insurance policy of the previous year and thus, it cannot avoid its liability to pay the compensation amount. He further argued that respondent no. 3/insurer has failed to establish that insurance policy for the previous year was fake one. For this purpose, he referred to relevant part of cross examination of R3W1 (official from the insurance company which had issued insurance policy for the previous year), during which he deposed that he himself had not issued policy no. 1122003112P301567607 and same was issued by Broker of the company. He also did not produce entire file in respect of said insurance policy and also did not produce the record, whereby Cover Note had been issued to particular Agent/Broker. He further submitted that even as per stand taken by R3, letter for cancellation of policy is dated 17.09.14 and period covered by the said policy, had already expired long time ago (the relevant period being from 31.03.13 to 30.03.14). He therefore, submitted that it is the insurance co/R3 which is liable to pay the compensation amount and not the insured.
43. In order to appreciate the aforesaid contentions raised on behalf of the insured as well as the insurer, it would be appropriate to discuss the testimonies of the relevant witnesses examined on this issue. During his cross examination, RW2 i.e. the insured could not say if the previous insurance policy was issued by United India Insurance Co Ltd or not. He further deposed that mechanical inspection of the offending vehicle was also carried out by the insurance co at the time of issuance of Cover Note, which is part of DAR Ex. PW1/5 colly. He denied the suggestion that insurance policy ( Ex. RW2/7) for the period in question, was got issued by him after the occurrence of accident in question or that there was any breach of policy due to said reason.
Sh. Rameshwar & Ors Vs. Dinesh & Ors. Page 19 of 31MACP No. 5182/16 (Old No. M46D/13) FIR No. 208/13.; PS Narela DOD: 10.05.2018
44. R3W1 has produced relevant record in respect of policy no. 1122003112P301567607 and deposed that said policy (which is Ex. R3W1/A) was issued in respect of motorcycle bearing registration no. HR 02L5215 in the name of Sajjan Kumar for the period from 26.11.12 to 25.11.13 from its office situated at Sector17B, Chandigarh. He also produced Certificate U/s 64 VB of Insurance Act ( Ex. R3W1/B) and copy of Cover Note ( Mark R3W1/1).
45. As already noted above, R3W1 did not produce the entire file regarding issuance of aforesaid policy and also did not produce the relevant record, whereby Cover Notes were issued to particular Agent/Broker. He admitted during his cross examination that as and when policy is issued, the details of previous insurance policy are duly mentioned in the Cover Note/Policy. He further deposed that no one ever made any inquiry from his office regarding the aforesaid policy at any point of time. He however denied the suggestion that he was deposing at the instance of M/s. Tata AIG General Insurance Co Ltd (R3 herein) or that Ex. R3W1/A does not reflect true picture of its original document.
46. R3W2 namely Ms. Namarata Dawar has deposed in her evidence by way of affidavit (Ex R3W2/A) that despite service of notice U/o 12 rule 8 CPC dispatched through postal receipts ( both of which are Ex. R3W2/2 colly), the insured i.e. respondent no. 2 failed to produce the original insurance policy/cover note of the period in question as well as for the previous year. She further deposed that insurance policy for the period in question turned out to be void as insured had obtained the said policy by misrepresentation in respect of previous insurance Policy No. 1122003112P301567607 for the period from 31.03.12 to 30.03.13 purportedly issued by United India Insurance Co Ltd. She further deposed that her company i.e.Tata AIG General Insurance Company Ltd had issued the insurance policy ( Ex. RW2/7) on the basis of said previous insurance Sh. Rameshwar & Ors Vs. Dinesh & Ors. Page 20 of 31 MACP No. 5182/16 (Old No. M46D/13) FIR No. 208/13.; PS Narela DOD: 10.05.2018 policy, which on verification, was found to be fake. She also deposed that said fact was got verified by her insurance co through its Investigator Sh Mahender Singh, whose report is marked as Mark A. She also relied upon alleged fake insurance policy of the previous year as Mark A and copy of cover note issued against the said vehicle by IFFCO Tokio General Insurance Co Ltd as Mark B. She further deposed that letter dated 27.05.13 (Mark C) regarding cancellation of insurance policy for the period in question, had been issued to respondent no. 2/insured vide dispatch register, copy of which is Mark D. During her cross examination, she admitted that she had no personal knowledge about the issuance of Policy for the period in question. In response to question about the procedure to be followed before issuance of Insurance Policy, she testified that in case of renewal policy, it can be renewed from the same company or it can be the case of roll over. In case of roll over, mechanical inspection of the vehicle being insured, is got conducted prior to issuance of Policy. In case the proposer wants to get the mechanical inspection dispensed with, he is required to submit his previous insurance policy. She admitted that same procedure was followed in the case in hand as per the record maintained by her insurance company. She denied the suggestion that at the time of renewal of policy, it is mandatory to verify the old policy issued by some other insurance company. She admitted that her company did not verify genuineness of previous insurance policy issued by United India Insurance Co Ltd at the time of issuance of policy for the period in question. She further deposed that in case of time gap in the previous insurance policy, it is mandatory to conduct mechanical inspection before issuance of new policy. After receipt of copy of DAR, it came to the knowledge of insurance company that the accident occurred on next day of the commencement of insurance policy issued by her company and suspecting that it might be a case of fraud, necessary verification was got done. She further deposed that Sh. Rameshwar & Ors Vs. Dinesh & Ors. Page 21 of 31 MACP No. 5182/16 (Old No. M46D/13) FIR No. 208/13.; PS Narela DOD: 10.05.2018 her company had duly got confirmed from IFFCO Tokio General Insurance Co Ltd that said company had issued insurance policy in respect of offending vehicle in the name of Yashpal (R2) for the period 23.03.12 to 22.03.13. She admitted that no document can be produced to show that letter dt. 17.09.14 (MarkC) was actually received by respondent no. 2/insured. She denied the suggestion that policy in question was valid or that her company is liable to pay the compensation amount.
47. R3W3 produced insurance policy no.79575885 issued in the name of Sh Yashpal S/o Sh Raghubar Singh (R2) in respect of vehicle no. Truck bearing registration no. HR69B6000. He deposed that said policy was valid from 23.03.12 till 22.03.13 and proved its copy as Ex. R3W3/1. He also proved Certificate U/s 65B of Indian Evidence Act in respect of said policy, as Ex. R3W3/2. During his cross examination on behalf of petitioners, he admitted that he had no personal knowledge about the facts of the case and documents were produced on the basis of record maintained by his company.
48. The contentions raised on behalf of R3/insurance company are having two limbs. The first limb of argument is that insurance co is not at all liable to pay the compensation amount to the petitioners as the insurance policy became void in view of fake insurance policy ( Mark R3W1/1) for the previous year submitted by the insured. Hence, insurance company is liable to be exonerated from its liability to pay the compensation amount.
49. The aforesaid limb of argument raised on behalf of insurance company, needs to be decided on the touch stone of the statutory provisions contained in M.V Act and on the basis of law of the land as enunciated by Superior Courts. The conjoint reading of the provisions contained in Section 145 (b), Section 147 and Section 149 (1) of M.V Act in the backdrop of the object and the purpose behind the said enactment, would leave no scope of doubt that once Certificate of Insurance had been issued, then liability U/s Sh. Rameshwar & Ors Vs. Dinesh & Ors. Page 22 of 31 MACP No. 5182/16 (Old No. M46D/13) FIR No. 208/13.; PS Narela DOD: 10.05.2018 149 (1) M.V Act towards third parties on behalf of the insurance company exists, notwithstanding the fact that the insurance policy has been cancelled or is liable to be cancelled. SubSection (5) of Section 147 of M.V Act starts with nonobstante clause, which gives primacy and over riding effect notwithstanding any other law including Insurance Act, to the contrary. Thus, an insurer having issued the policy of insurance, is liable to indemnify the owner of the vehicle in respect of the claims covered by the policy.
50. Turning to the facts of the present case. It is an undisputed fact that respondent no. 3 had issued insurance policy ( Ex. RW2/7) in respect of offending vehicle i.e. Truck bearing registration no. HR69B6000 for the period in question. It is nowhere the case of R3/insurance company that the insurance policy had been cancelled at any point of time during the period of its validity i.e. from 31.03.13 to 30.03.14. That being the position emerging on record, I am of the considered opinion that the insurance co/R3 has statutory liability to pay the compensation amount to the petitioners being duty bound to indemnify third party risk insured by it by virtue of the insurance policy issued in respect of offending vehicle for the period in question.
51. Now, I shall deal with the second limb of argument raised on behalf of insurance co/R3 that in case it is made liable to pay compensation amount to third party, it should be held entitled to recover the said amount from the insured. The said argument seems to be justified in a situation where the insurer/R3 acted diligently and would have either not issued the insurance policy after issuance of cover note or would have promptly cancelled the insurance policy on acquiring knowledge of the fact that insurance policy for the previous year submitted by insured and which led it to issue insurance policy for the period in question, was fake. None of these two things, was done by R3/insurance company in the present case.
52. It needs no mention that as per Rule 142 of Central Motor Sh. Rameshwar & Ors Vs. Dinesh & Ors. Page 23 of 31 MACP No. 5182/16 (Old No. M46D/13) FIR No. 208/13.; PS Narela DOD: 10.05.2018 Vehicles Rules 1989, cover note issued by authorized insurer is having validity for a period of 60 days from the date of its issue and the insurer is required to issue insurance policy before the date of expiry of the cover note. It may be noted here that insurance cover note expires on its own by efflux of time within 60 days, if not followed by a policy of insurance, within the prescribed time of 60 days. Section 147 (4) of M V Act casts an obligation on the insurance company to inform the registering authority in whose record the vehicle is registered or to the prescribed State Authority where the vehicle is registered, within seven days of expiry of the period that the cover note has lapsed without a policy of insurance being issued.
53. In the present case, it is an admitted position on record that respondent no.3/insurance company had issued insurance policy ( Ex. RW2/7) in respect of offending vehicle for the period in question, in favour of respondent no. 2/insured. At no point of time, insurance company is shown to have acted diligently or promptly in cancelling the insurance policy. There is no dispute to the fact that the insurance policy in question remained in force till the period of its validity i.e. midnight of 30.03.14. This fact when considered in the light of the relevant part of cross examination of R3W2 (i.e. Officer of respondent no. 3), leads to the conclusion that the entire conduct on the part of insurance co had been negligent. R3W2 deposed during her cross examination that verification of previous insurance policy was got done from IFFCO Tokio General Insurance Co Ltd and said company duly verified the factum of issuance of insurance policy in respect of offending Truck bearing registration no. HR69B6000 in the name of respondent no. 2 for the period from 23.03.12 to 22.03.13. The factum of there being valid insurance policy having been issued by IFFCO Tokio General Insurance Co Ltd, is duly substantiated from the ocular testimony of R3W3.
54. What is more important to note is that an attempt is made on the part of insurance company to create a record by bringing on record copy Sh. Rameshwar & Ors Vs. Dinesh & Ors. Page 24 of 31 MACP No. 5182/16 (Old No. M46D/13) FIR No. 208/13.; PS Narela DOD: 10.05.2018 of letter dt. 17.09.14 (Mark C) purportedly issued to respondent no. 2/insured, whereby insurance policy for the offending vehicle for the period from 31.03.13 to 30.03.14 was sought to be cancelled. Apart from the fact that period covered under the said policy, had already expired long time back before the date of aforesaid letter, the insurance co/respondent no. 3 has failed to prove that the said letter was actually issued to the insured/respondent no. 2 at any point of time, in view of the fact that neither office copy of said letter has been placed on record nor any proof regarding dispatch of said letter to insured, has been brought on record, what to say of filing any proof regarding receipt of said letter by the insured. Infact, R3W2 has admitted during her cross examination that there is no proof showing that the said letter was actually received by insured at any point of time. It is relevant to note that the WS/reply filed by insurance company is completely silent as regards the factum of issuance of letter dt. 17.09.14 as the said WS/ reply was filed on 17.07.14 and it was only thereafter, that the aforesaid letter was created in order to raise this plea. No explanation whatsoever has been furnished by insurance company as to what kind of verification of previous insurance policy purportedly submitted by insured with it, at the time of issuance of insurance policy for the period in question, had been made by it. Moreover, the said insurance policy remained in force throughout the period of its validity upto 30.03.14 and was not cancelled at all despite the fact that accident in question occurred on 01.04.13 and DAR had been filed on 03.06.13. The insured was never called upon at any point of time to furnish any explanation on this aspect or to produce any valid insurance policy of the offending vehicle for the previous year, during the said period. The insurance company duly accepted the insurance premium while issuing insurance policy of the vehicle for the period in question and used it for its benefit. Thus, I am of the view that in view of peculiar facts and circumstances of the present case as discussed above, the insurance Sh. Rameshwar & Ors Vs. Dinesh & Ors. Page 25 of 31 MACP No. 5182/16 (Old No. M46D/13) FIR No. 208/13.; PS Narela DOD: 10.05.2018 co /respondent no. 3 cannot be allowed to take the plea that insurance policy was void in view of Section 149 (2) (b) of M.V Act or that it is entitled to recover the compensation amount from the insured/respondent no. 2.
55. Now, I shall deal with the second bone of contention raised on behalf of insurance co/R3 that since there was no valid permit in respect of offending Truck bearing registration no. HR69B6000 as on the date of accident for State of Delhi, it is entitled to recover the compensation amount under the law.
56. At this juncture, it would be relevant to refer to the provision contained in Section 66 (1) of M.V Act which read as under: Necessity for Permits:(1) No owner of a motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place whether or not such vehicle is actually carrying any passengers or goods save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or any prescribed authority authorising him the use of the vehicle in that place in the manner in which the vehicle is being used.
57. It is quite clear from the bare perusal of the aforesaid provision that transport vehicle cannot be used in any public place, whether or not such vehicle is actually carrying any passengers or goods, save in accordance with the conditions of a permit granted by Regional or State Transport Authority. Thus, there is clear violation of the terms and conditions of the insurance policy for want of valid permit in respect of offending vehicle as on the date of accident.
58. Now turning back to the facts of the case. In order to substantiate its plea that there was no valid permit in respect of offending Truck bearing registration no. HR69B6000, the insurance company has Sh. Rameshwar & Ors Vs. Dinesh & Ors. Page 26 of 31 MACP No. 5182/16 (Old No. M46D/13) FIR No. 208/13.; PS Narela DOD: 10.05.2018 examined its Senior Executive namely Ms. Namarata Dawar as R3W2. Before discussing the testimony of this witness, it would be appropriate to discuss the testimony of RW2 (i.e. insured/R2). RW2 has deposed in his evidence by way of affidavit ( Ex. RW2/A) that Truck bearing registration no. HR69B6000 was having Fitness Certificate with validity upto 07.08.13 and it was also having National Permit having validity from 30.12.11 to 26.12.16. He relied upon copy of Fitness Certificate, National Permit, DL and Insurance Policy in respect of aforesaid offending vehicle as Ex. RW2/2 to Ex. RW2/5 ( they being also part of DAR Ex. PW1/5 colly). During his cross examination, he denied the suggestion that permit ( Ex. RW2/3) was not valid for State of Delhi as on the date of accident i.e. 01.04.13.
59. As against the aforesaid testimony of RW2 (insured himself), R3W2 ( Officer of R3/Insurance Co) has deposed in her evidence by way of affidavit (Ex. R3W2/A) that there was no valid permit in respect of offending vehicle for the State of Delhi as on the date of accident and despite service of notice u/o 12 Rule 8 CPC upon registered owner, he failed to produce any valid Permit during the course of inquiry. She has relied upon copy of said notice, postal receipt regarding dispatch of said notice and tracking report regarding delivery of said notice upon insured as Ex. R3W2/2 (colly). Said witness has not been crossexamined at all by driver and registered owner on said aspect. Even otherwise, the copy of permit ( Ex. RW2/3) which is part of DAR Ex. PW1/5 colly, would show that National Permit had been issued for a period of five years from 30.12.11 to 26.12.16 by the office of RTA, Panipat in respect of offending Truck bearing registration no. HR69B6000 but the insured has failed to produce receipt regarding payment of annual fee for the period in question in respect of said permit.
60. Not only this, the respondent no. 2 i.e. registered owner, despite being put to notice U/o 12 rule 8 CPC ( Ex. R3W2/2 colly), failed to bring on record any valid permit for State of Delhi in respect of the offending Sh. Rameshwar & Ors Vs. Dinesh & Ors. Page 27 of 31 MACP No. 5182/16 (Old No. M46D/13) FIR No. 208/13.; PS Narela DOD: 10.05.2018 vehicle for the period in question. Since, he failed to file any reply to said notice, an adverse inference is liable to be drawn against him that there was no valid permit in respect of offending vehicle for State of Delhi as on the date of accident. In these circumstances, it is held that there was fundamental breach in terms and conditions of the insurance policy on the part of insured i.e. respondent no. 2.
61. The authority of Hon'ble Delhi High Court in the case titled as "
National Insurance Company Ltd Vs. Ram Rati", MAC APP No. 11/08 decided on 18.01.08, relied by counsel for respondents no. 1 & 2 is of no help to them. In the cited decision, Hon'ble Delhi High Court has held that insurance company is liable to satisfy the claim of third party risk in case of violation of permit conditions. In the said case, offending TSR vehicle had been handed over by its registered owner to some other person who caused the road accident. In this backdrop, insurance company raised plea that there was breach of the terms and conditions of the permit while placing reliance upon the provision contained in Section 66 read with Section 149(2) M.V Act. The facts of the present case are entirely distinguishable from the cited decision. In the present case, the respondent no. 2 i.e. insured has failed to establish that there was any valid permit for State of Delhi in respect of offending Truck bearing registration no. HR69B6000 as on the date of accident. Hence, the insurance company is entitled to recovery rights against the insured/ respondent no. 2. (Reliance placed on decision dated 26.09.2017 in FAO no.7555/2015 in the matter titled as "MS Middle High School and another Vs. Usha and others" by Hon'ble High Court of Punjab and Haryana and as upheld by Hon'ble Apex Court in SLP no.31406/2017 titled as "MS Middle High School Vs. HDFC ERGO General Insurance Company Ltd. & others" decided on 22.11.2017). Issue no. 2 is decided accordingly.Sh. Rameshwar & Ors Vs. Dinesh & Ors. Page 28 of 31
MACP No. 5182/16 (Old No. M46D/13) FIR No. 208/13.; PS Narela DOD: 10.05.2018 ISSUE NO. 3 RELIEF
62. In view of my finding on issues no. 1 & 2, I award a sum of Rs. 14,50,000/ in favour of Lrs of deceased/petitioners namely Dharmender Kumar and a sum of Rs. 1,91,000/ in favour of injured Sh Deepak (including interim award amount if any), alongwith interest @ 9% per annum w.e.f date of filing the petition i.e. 03.06.2013 till the date of its realization against the respondents jointly and severally (Reliance placed on judgment "Oriental Insurance Company Ltd. Vs. Sangeeta Devi & Ors" bearing MAC. APP. 165/2011 decided on 22.02.2016). However, it would be open to the insurance company to recover the awarded amount from respondent no. 2 after payment of compensation amount, in accordance with law.
APPORTIONMENT
63. Statements of legal heirs of deceased Dharmender Kumar and of injured namely Sh. Deepak in terms of Clause 26 MCTAP, were recorded on 13.12.2017. It is hereby ordered that out of the award amount, petitioner no. 1 namely Sh Rameshwar shall be entitled to share amount of Rs. 6,00,000/( Rs. Six Lacs Only) alongwith proportionate interest and the petitioner no. 2 namely Smt. Rameshwari shall be entitled to remaining share amount of Rs.8,50,000/( Rs. Eight Lacs & Fifty Thousand Only) alongwith proportionate interest.
64. Out of share amount of petitioner no. 1, a sum of Rs. 75,000/ ( Rs. Seventy Five Thousand Only) is directed to be immediately released to him through his Saving Bank Account No. 012020000401 with The Delhi State CoOperative Bank Ltd, Narela Branch having IFSC Code No. YESB00SC012 and remaining amount is directed to be kept in the form of FDRs in the multiples of Rs. 50,000/ each for one year, two years, three years and so on and so forth.
65. Out of share amount of petitioner no. 2, a sum of Rs. 1,00,000/ Sh. Rameshwar & Ors Vs. Dinesh & Ors. Page 29 of 31 MACP No. 5182/16 (Old No. M46D/13) FIR No. 208/13.; PS Narela DOD: 10.05.2018 ( Rs One Lakh Only) is directed to be immediately released to her through her Saving Bank Account No. 012020000348 with The Delhi State Co Operative Bank Ltd, Narela Branch having IFSC Code No. YESB00SC012 and remaining amount is directed to be kept in the form of FDRs in the multiples of Rs. 50,000/ each for one year, two years, three years and so on and so forth.
66. It is hereby ordered that out of the awarded amount, a sum of Rs. 25,000/ ( Rs. Twenty Five Thousand Only) shall be immediately released to injured Deepak through his saving bank account no. 62209448569 with State Bank of Hyderabad, Narela Branch having IFSC Code No. SBIN0021402 and remaining amount alongwith interest amount be kept in FDRs in the multiples of Rs. 25,000/ each for a period of one year, two years, three years and so on and so forth.
67. All the FDRs to be prepared as per aforesaid directions, shall be subject to the following conditions:
(i) Original fixed deposit receipts be retained by the bank in safe custody. However, a passbook of the FDRs alongwith photocopies of the FDRs be given to claimant/petitioner. At the time of maturity, the fixed deposit amount shall be automatically credited in the savings bank account of the Claimant/petitioner.
(ii) The maturity amount(s) of the FDR(s) shall be credited to the savings bank account of the claimant(s) in a nationalized bank near the place of his residence.
(iii) No cheque book/Debit Card be issued to the claimant(s) in respect of the savings bank accounts in which the award amount is to be sent/credited, without permission of the Court. However, in case the debit card and/or cheque book have already been issued, the bank shall cancel the same before the disbursement of the award amount.
(iv) No loan, advance or withdrawal be allowed on the fixed deposit(s) without permission of the Court.
(v) The Bank shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the victim.
(vi) Half yearly statement of account be filed by the Bank before the Tribunal.
68. During the course of hearing of final arguments, the claimants submitted that they are entitled to exemption from deduction of TDS as their annual income do not exceed the taxable limit prescribed under the law.
Sh. Rameshwar & Ors Vs. Dinesh & Ors. Page 30 of 31MACP No. 5182/16 (Old No. M46D/13) FIR No. 208/13.; PS Narela DOD: 10.05.2018 They have also furnished Form Nos. 15G/15H on record.
69. Respondent no. 3, being insurer of the 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 share amounts directed to be released immediately to the petitioners in their aforesaid saving bank accounts mentioned supra, on completing necessary formalities as per rules. He be further directed to keep the said amount in fixed deposit in its own name till the claimants approach the bank for disbursement so that the award amount starts earning interest from the date of clearance of the cheques. Copy of the award be given dasti to the petitioners and also to counsel for the insurance company alongwith original Form Nos. 15 G/15H of claimants (after retaining photocopies thereof on record) for compliance. Copy of this award alongwith one photograph each, specimen signatures, copy of bank passbooks and copies of residence proof of the petitioners, be sent to Nodal Officer of SBI, Rohini Court, Branch, Delhi for information and necessary compliance. Form V in terms of MCTAP is annexed herewith as AnnexureA. Copy of order be also sent to concerned M.M and DLSA as per clause 31 and 32 of MCTAP.
Announced in open Court on 10.05.2018 (VIDYA PRAKASH) Judge MACT2 (North) Rohini Courts, Delhi Sh. Rameshwar & Ors Vs. Dinesh & Ors. Page 31 of 31