Delhi District Court
) Suit No: 193/12 vs Shri Bittoo Singh S/O Sh. Satish Singh on 4 January, 2014
IN THE COURT OF SHRI PREM KUMAR BARTHWAL,
PO:MACT (SE01), SAKET COURTS, NEW DELHI
1) Suit No: 193/12
Unique ID No: 02406C0332432012
Smt. Shashi wife of Shri Ram Niwas,
R/o House/Dairy No. 17B,
Madanpur Khadar, Animal Hospital,
New Delhi
.......PETITIONER
AND
2) Suit No: 48/13
Unique ID No: 02406C0048062013
Shri Ram Niwas S/o Sri Chand,
R/o Dairy No. 17B, Mandarpur Khadar,
Animal Hospital, New Delhi
........PETITIONER
VERSUS
1. Shri Bittoo Singh S/o Sh. Satish Singh,
R/o House No. 795, Phase3rd, J.J. Colony,
Madanpur Khadar, New Delhi
2. M/s Delhi Waste Management Ltd.,
F27/2, Okhla Industrial Area, PhaseII,
New Delhi
Suit No. 193/12 & 48/13 Page 1 of 29
3. M/s ICICI Lombard General Insurance Co. Ltd.,
315, 3rd Floor, Plot No. 04, Aggarwal City Mall
near M2K, Rani Bagh, Pitampura,
New Delhi
........RESPONDENTS
Date of filing of claim petitions: 16.02.2013 Date on which the Award/judgment reserved: 04.01.2014 Date on which the Award/judgment pronounced: 04.01.2014 Ms Kanta Chaudhary, counsel for petitioners Shri S K Shukla, counsel for R1 Shri Surender Kumar, counsel for R2 Ms Manu, counsel for R3/Insurance Co.
A W A R D:
1. Vide this common judgment, I shall dispose off two claim petitions i.e. petition bearing No. 193/12 titled "Shashi Vs. Bittoo Singh & Ors." and other petition bearing No. 48/13 titled "Ram Niwas Vs. Bittoo Singh & Ors." as these two claims have arisen out of the same accident which had taken place on 05.09.2012 and the respondents are also common and these two petitions stood consolidated vide proceedings dated 01.08.2013.
The plea of the petitioners is that they had sustained grievous Suit No. 193/12 & 48/13 Page 2 of 29 injuries in a road vehicular accident that took place on 05.09.2012 near Madanpur Khadar Road near C&G Pocket, TPoint Mor, Sarita Vihar, New Delhi involving vehicle bearing registration No. DL1LR4464 (TATA Ace) driven by R1, Shri Bittoo Singh. A Detailed Accident Report (DAR) was also filed by the police in respect of this accident (FIR No. 273/12, PS Sarita Vihar) and the said DAR was also clubbed with the claim petition titled "Smt Shashi Vs Bitto Singh (Suit No. 193/12)" vide proceedings dated 16.02.2013.
2. The respondents No. 1, 2 and 3 are respectively the driver, owner and insurer of the alleged offending vehicle. The respondent No. 1 did not chose to contest the claim of the petitioners despite the fact that he was present in person in the DAR proceedings on 23.11.2012 and a counsel, Shri S K Shukla had also put his appearance on behalf of R1 on 16.02.2013 and sought time for filing written statement but subsequently nobody has cared to appear on behalf of R1 and no written statement was filed on behalf of the said respondent and accordingly, the respondent No. 1 was proceeded exparte vide proceedings dated 16.09.2013. On behalf of the respondent No. 2 a written Suit No. 193/12 & 48/13 Page 3 of 29 statement has been filed through attorney Shri Rajeev Arora contending that the accident had occurred due to rash and negligent driving of Shri Ram Niwas who is the husband of petitioner, Smt Shashi. It has been further contended that the vehicle No. DL1LR4464 (TATA Ace) has no role in the said accident and that the said vehicle was insured with M/s ICICI Lombard Gen. Ins. Co. Ltd. The respondent No. 3/Insurance Company has also filed its written statement through its counsel denying the claim of the petitioners but admitting the fact that the vehicle bearing registration No. DL1LR4464 stood insured with it in the name of Delhi Waste Management Ltd. vide insurance policy bearing No. 3008/69442475/00/000 valid from 08.02.2012 to 07.02.2013 as a miscellaneous vehicle package policy. It has been further contended that the respondent No. 3/Insurance Company is entitled to protection under Section 147 to 149 of MV Act and Section 64 VB of Insurance Act and the liability of the said respondent is subject to terms and conditions of the policy of insurance.
3. From the pleadings of the parties, following issues were framed for consideration in both the petitions on 01.08.2013 : Suit No. 193/12 & 48/13 Page 4 of 29
1. Whether the petitioner suffered injuries in a road vehicular accident that took place on 05.09.2012 due to rash and negligent driving of vehicle bearing registration no. DL1L R4464 by respondent no. 1?
2. Whether the petitioner is entitled for any compensation? If so, to what amount and from whom?
3. Relief
4. In order to prove their claims, the petitioners, Smt. Shashi and Shri Ram Niwas have got themselves examined as PW1 and PW2 respectively and the learned counsel for the petitioners closed the PE vide her separate statement recorded on 16.09.2013. The respondent No. 1 has not adduced any evidence. Shri Rajeev Arora, has been examined as RW1 on behalf of the respondent No. 2, M/s Delhi Waste Management Ltd. and the learned counsel for R2 closed RE on behalf of the said respondent vide his separate statement recorded on 17.10.2013. The R3/Insurance Company has got examined Shri Kanwar Kochhar, Manager (Legal), M/s ICICI Lombard General Insurance Company as R3W1 and the learned counsel for the Suit No. 193/12 & 48/13 Page 5 of 29 said respondent closed RE on behalf of R3/Insurance Company vide her separate statement recorded on 17.10.2013.
5. I have heard the learned counsels for the parties and considered the testimonies of the witnesses and the written submissions filed on behalf of the respondent No. 2 as well as R3/Insurance Company. My findings to the issues are as under : ISSUE NO. 1 (COMMON IN BOTH PETITIONS):
6. Since the present petitions are under Section 166 of M V Act, it was the bounden duty of the petitioners to prove that the respondent No. 1 was rash and negligent in driving the offending vehicle at the time of accident. In order to prove this issue, the learned counsel for the petitioners has relied upon the statement of PW2, Shri Ram Niwas who has deposed that on 05.09.2012 at about 13.30 Hrs he was going from Madanpur Khadar to his dairy on his motorcycle bearing registration No. DL7SAS6817 and his wife, Smt Shashi was the pillion rider and that he was driving the motorcycle as per the rules of traffic and at normal speed on the proper and correct side of the road and when they had reached near Madanpur Khadar Road near C&G Pocket, T Point Mor, Sarita Vihar, New Delhi, suddenly the offending vehicle Suit No. 193/12 & 48/13 Page 6 of 29 i.e. TATA Ace bearing registration No. DL1LR4464 driven by respondent No. 1 in a rash and negligent manner and in contravention of traffic rules came in fast speed without blowing any horn and without giving any indicator hit their motorcycle with great force. Due to the forceful impact, petitioners fell down on the road and sustained grievous injuries. PW1, Smt Shashi has also reiterated the content of her claim petition and version of PW2, Shri Ram Niwas. These witnesses have also averred that the accident had taken place due to negligence on part of the respondent No. 1 who was driving the offending vehicle in a rash and negligent manner at the time of accident. PW1, Smt. Shashi and PW2, Shri Ram Niwas have not been crossexamined by the respondent No. 1 and 3 and they have been crossexamined only by the learned counsel for R2 and denied the suggestions that the accident had taken place due to rash and negligent driving of Shri Ram Niwas. However, the respondent No. 1 has not cared to enter into the witness box to explain his version regarding the manner in which the accident had taken place and has not cared to explain circumstances regarding his involvement in FIR No. 273/12, PS Sarita Vihar and the same compels this Tribunal to Suit No. 193/12 & 48/13 Page 7 of 29 draw adverse inference against him. Statements of PW1, Smt. Shashi and PW2, Shri Ram Niwas also stand corroborated from the copy of final report U/s 173 Cr.P.C., Ex.PW1/7, filed by the police in respect of FIR No. 273/12, PS Sarita Vihar against the respondent No. 1/ driver of the offending vehicle for his trial for the offences under Section 279/338/465/468/471/474 IPC. The copies of FIR, Ex.PW1/6; arrest memo of R1/driver, Ex.PW1/12; mechanical inspection report of the offending vehicle, Ex.PW1/13; site plan and seizure memo of the offending vehicle have also been filed on record. To determine the negligence of the driver of the offending vehicle, I am being guided by the judgment of Hon'ble High Court in case titled "Basant Kaur & Ors. Vs. Chattar Pal Singh & Ors" [2003 ACJ 369 M.P. (DB)] wherein it has been held that registration of a criminal case against the driver of the offending vehicle is enough to record the finding that the driver of offending vehicle is responsible for causing the accident. It is also settled law that the term rashness and negligence has to be construed lightly while making a decision on a petition for claim for the same as compared to the word rashness and negligence as finds mention Suit No. 193/12 & 48/13 Page 8 of 29 in the Indian Penal Code. This is because the chapter in the Motor Vehicle Act dealing with compensation is a benevolent legislation and not a penal one.
7. In view of the above discussions and particularly in particularly in view of no controverting evidence on behalf of the respondent No. 1/driver of the offending vehicle, it stands proved on record that the petitioners, Smt. Shashi and Shri Ram Niwas have suffered injuries due to rash and negligent driving of respondent No. 1 on 05.09.2012. Accordingly, the issue No. 1 is decided in favour of the petitioners and against the respondents. ISSUE NO. 2 (COMPENSATION):
8. So far as this issue is concerned, I shall be deciding the claims of the petitioners independently and my findings are as under: ISSUE NO. 2 IN PETITION NO. 193/12:
9. The petitioner, Smt. Shashi has claimed a total compensation of Rs.15,00,000/ as compensation on account of the injuries suffered by her in this accident. Let me now assess the award amount to be given to the petitioner under different heads:
Suit No. 193/12 & 48/13 Page 9 of 29
COMPENSATION FOR REIMBURSEMENT OF MEDICAL EXPENSES:
10. The petitioner was hospitalized from 05.09.2012 to 08.09.2012 at Holy Family Hospital and she has filed on record her original medical bills as Ex.PW1/2 (Colly). The total of the said original medical bills filed on record comes out to be Rs. 16,227/ which is rounded off to Rs.17,000/. Accordingly, I hereby award a sum of Rs.17,000/ towards reimbursement of medical expenses keeping in view the nature of injuries suffered by petitioner in this accident.
COMPENSATION FOR PAIN, SUFFERINGS AND LOSS OF AMENITIES OF LIFE:
11. Let me now assess the compensation to be paid to the petitioner for pain, sufferings and loss of amenities of life. It is settled law that a particular amount can not be fixed for pain and sufferings for all the cases as it varies from case to case. As per the medical record of the petitioner i.e. MedicoLegal Report, Ex.PW1/1, issued from Holy Family Hospital, New Delhi, the doctor examining the petitioner after the accident has opined about the nature of injuries suffered by the petitioner to be grievous. As per the Discharge Summary, Ex.PW1/3 issued from Suit No. 193/12 & 48/13 Page 10 of 29 Holy Family Hospital, New Delhi, the petitioner, Smt. Shashi was admitted in the said hospital on 05.09.2012 and was discharged on 08.09.2012 and was diagnosed with head injury and was treated conservatively. She was also advised review in the GOPD after seven days. Judicial notice can also be taken on the fact that since the petitioner had suffered grievous injuries, she must have suffered acute pain and sufferings owing to the said injuries. She might have also consumed heavy doses of antibiotics etc. and also might have remained without movements of her body for a considerable period of time. In order to ascertain the compensation for pain and sufferings, I am guided by the judgment of Hon'ble High Court of Delhi in case Satya Narain V/s Jai Kishan (FAO No: 709/02 decided on 02.02.2007) wherein it was held that: "On account of pain and suffering, suffice would it be to note that it is difficult to measure pain and suffering in terms of a money value.
However, compensation which has to be paid must bear some objective corelation with the pain and suffering. The objective facts relatable to pain and suffering would be:
(a) Nature of injury.
(b) Body part affected.
Suit No. 193/12 & 48/13 Page 11 of 29
(c) Duration of the treatment."
12. Keeping in view the said guidelines of the Hon'ble High Court of Delhi and keeping in view the nature of injuries suffered by the petitioner due to this accident, I am of the opinion that a sum of Rs.50,000/ as compensation towards pain, sufferings and loss of amenities of life would be sufficient to meet the ends of justice.
COMPENSATION FOR CONVEYANCE:
13. The learned counsel for the petitioner has claimed compensation for expenses incurred by the petitioner on conveyance. Though, there is no cogent evidence on record regarding the amount spent by her on conveyance but keeping in mind the fact that the petitioner had suffered grievous injuries and was hospitalized and has also visited the hospital number of times for her treatment, I am of the opinion that a sum of Rs.10,000/ as compensation on account of conveyance will meet the ends of justice.
COMPENSATION FOR SPECIAL DIET & ATTENDANT CHARGES:
14. The learned counsel for the petitioner has claimed compensation for expenses incurred by the petitioner on special Suit No. 193/12 & 48/13 Page 12 of 29 diet & attendant charges for early recovery of the petitioner. Though, there is no cogent evidence on record regarding the amount spent by the petitioner on special diet and attendant charges but keeping in mind the fact that the petitioner had suffered injuries and she would have spent some amount on special diet & attendant charges during her treatment, I am of the opinion that a sum of Rs.10,000/ as compensation on account of special diet & attendant charges will meet the ends of justice. COMPENSATION FOR LOSS OF INCOME:
15. The learned counsel for the petitioner, Smt. Shashi has claimed that the petitioner used to do stitching work at home and was earning Rs.10,000/ per month and she has suffered loss of income due to this accident. However, perusal of the documents filed on record reveals that the petitioner has not placed on record even a single document in respect of her avocation, monthly income or educational qualifications at the time of accident. PW1, Smt Shashi has also admitted on 16.09.2013 that there is no document filed on record regarding her avocation. Accordingly, the monthly income of the petitioner is taken to be minimum wages of an unskilled workman at the time of accident. Keeping in Suit No. 193/12 & 48/13 Page 13 of 29 mind the fact that petitioner had suffered grievous injuries, she could not have done her work for about 03 months. The compensation on that ground, therefore, comes out to be Rs. 21,060/ (Rs.7,020/ x 03) which is rounded off to Rs.25,000/. The petitioner is, therefore, entitled to a sum of Rs.25,000/ as compensation for the loss of income.
16. In view of the above discussions, the total compensation to which the petitioner is entitled to now comes as under :
1. Compensation for medical expenses: Rs. 17,000/
2. Compensation for conveyance: Rs. 10,000/
3. Compensation for special diet & attendant charges: Rs. 10,000/
4. Compensation for loss of income: Rs. 25,000/
5. Compensation for pain, sufferings and loss of amenities of life: Rs. 50,000/ Total: Rs.1,12,000/ RELIEF IN PETITION NO. 193/12 :
17. In view of the aforesaid discussions, it is hereby held that petitioner is entitled to a sum of Rs.1,12,000/ (Rupees One Lac and Twelve Thousand Only) as compensation with interest at the rate of 7.5% per annum including interim award, if any, from the date of filing the petition i.e. 16.02.2013 till the notice under Suit No. 193/12 & 48/13 Page 14 of 29 Order 21 Rule 1 CPC is given by the respondents, in favour of the petitioner and against the respondents on account of their liability being joint and several.
ISSUE NO. 2 IN PETITION NO. 48/13 :
18. The petitioner has claimed Rs.15,00,000/ as compensation on account of the injuries sustained by him in this accident.
COMPENSATION FOR MEDICAL EXPENSES:
19. The petitioner was hospitalized at Holy Family Hospital from 05.09.2012 to 26.09.2012 and has filed his final bill for an amount of Rs.1,12,941/. The learned counsel for petitioner submitted that the petitioner had to incur the expenses on medicines also and the original medical bills have been filed on record as Ex.PW2/2 (Colly). The total of the original medical bills filed on record and pertaining the treatment of the injuries suffered by him comes out to be Rs.1,23,033/. The learned counsel for petitioner has argued that some of the medical bills have been lost/ misplaced by the petitioner. Cognizance can also be taken of the fact that in such like cases, the public at large is generally ignorant and insensitive to take care of the medical bills etc. and Suit No. 193/12 & 48/13 Page 15 of 29 are more concerned with their treatment. Accordingly, I hereby award a sum of Rs.1,25,000/ towards medical expenses keeping in view the nature of injuries suffered by petitioner in this accident.
COMPENSATION FOR PAIN, SUFFERINGS AND LOSS OF AMENITIES OF LIFE:
20. Let me now assess the compensation to be paid to the petitioner for pain, sufferings and loss of amenities of life. It is settled law that a particular amount can not be fixed for pain and sufferings for all the cases as it varies from case to case. As per the medical record of the petitioner i.e. MedicoLegal Report, Ex.PW2/1, issued from Holy Family Hospital, New Delhi, the doctor examining the petitioner after the accident has opined about the nature of injuries suffered by the petitioner to be grievous in nature. As per the Discharge Summary, Ex.PW2/3 issued from Holy Family Hospital, New Delhi, the petitioner, Shri Ram Niwas was admitted in the said hospital on 05.09.2012 and was discharged on 26.09.2012 and he was diagnosed with "Head Injury, traumatic ulcer right foot, fracture left sup & INF pubic rami and fracture right ala of sacrum through foramen - minimally displaced". The petitioner had undergone debridement on his right foot on 10.09.2012 under short GA and debridement with skin Suit No. 193/12 & 48/13 Page 16 of 29 grafting on 18.09.2012 under general anesthesia. The petitioner was discharged with catheter and was advised medication and warm fomentation over pelvis. The petitioner was also advised dressing on alternate days and was called for review after seven days at the time of his discharge. Judicial notice can also be taken on the fact that since the petitioner had suffered grievous injuries, he must have suffered acute pain and sufferings owing to the said injuries. He might have also consumed heavy doses of antibiotics etc. and also might have remained without movements of his body for a considerable period of time. Keeping in view the guidelines of the Hon'ble High Court of Delhi and keeping in view the nature of injuries suffered by the petitioner due to this accident, I am of the opinion that a sum of Rs.60,000/ as compensation towards pain, sufferings and loss of amenities of life would be sufficient to meet the ends of justice.
COMPENSATION FOR CONVEYANCE:
21. The learned counsel for the petitioner has claimed compensation for expenses incurred by the petitioner on conveyance. Though, there is no cogent evidence on record regarding the amount spent by him on conveyance but keeping in Suit No. 193/12 & 48/13 Page 17 of 29 mind the fact that the petitioner had suffered grievous injuries and was hospitalized and has also visited the hospital number of times for his treatment, I am of the opinion that a sum of Rs.10,000/ as compensation on account of conveyance will meet the ends of justice.
COMPENSATION FOR SPECIAL DIET & ATTENDANT CHARGES:
22. The learned counsel for the petitioner has claimed compensation for expenses incurred by the petitioner on special diet & attendant charges for early recovery of the petitioner.
Though, there is no cogent evidence on record regarding the amount spent by the petitioner on special diet and attendant charges but keeping in mind the fact that the petitioner had suffered injuries and he would have spent some amount on special diet & attendant charges during her treatment, I am of the opinion that a sum of Rs.20,000/ as compensation on account of special diet & attendant charges will meet the ends of justice. COMPENSATION FOR LOSS OF INCOME:
23. The petitioner, Shri Ram Niwas has claimed in para 07 of his evidence affidavit, Ex.PW2/A that he was running a milk dairy and was earning Rs.20,000/ per month at the time of the Suit No. 193/12 & 48/13 Page 18 of 29 accident and due to this accident he has suffered loss of income.
However, perusal of the documents filed on record reveals that the petitioner has not placed on record even a single document in respect of his avocation, monthly income or educational qualifications. PW2, Shri Ram Niwas has also admitted during his crossexamination on 16.09.2013 that there is no document filed on record regarding the fact that he used to run a milk dairy. In the absence of any cogent documentary evidence filed on record in respect of monthly income of the petitioner, the same can be taken to be the minimum wages of an unskilled workman as notified by Delhi Government and the same was Rs.7,020/ at the time of accident (05.09.2012). Keeping in mind the fact that petitioner had suffered grievous injuries, he could not have done his work for about 06 months. The compensation on that ground, therefore, comes out to be Rs.42,120/ (Rs.7,020/ x 06) which is rounded off to Rs.43,000/. The petitioner is, therefore, entitled to a sum of Rs.43,000/ as compensation for the loss of income.
24. In view of the above discussions, the total compensation to which the petitioner is entitled to now comes as under : Suit No. 193/12 & 48/13 Page 19 of 29
1. Compensation for medical expenses: Rs.1,25,000/
2. Compensation for conveyance: Rs. 10,000/
3. Compensation for special diet & attendant charges: Rs. 20,000/
4. Compensation for loss of income: Rs. 43,000/
5. Compensation for pain, sufferings and loss of amenities of life: Rs. 60,000/ Total: Rs.2,58,000/ RELIEF IN PETITION NO. 48/13 :
25. In view of the aforesaid discussions, it is hereby held that petitioner is entitled to a sum of Rs.2,58,000/ (Rupees Two Lac and Fifty Eight Thousand Only) as compensation with interest at the rate of 7.5% per annum including interim award, if any, from the date of filing the petition i.e. 16.02.2013 till the notice under Order 21 Rule 1 CPC is given by the respondents, in favour of the petitioner and against the respondents on account of their liability being joint and several.
APPORTIONMENT OF LIABILITY:
26. The Ld counsel for the respondent No. 3/Insurance Company has argued that the Insurance Company is not entitled to pay any compensation to the petitioners as there was violation of terms and conditions of the insurance policy as the offending vehicle was being driven by the respondent No. 1 who did not Suit No. 193/12 & 48/13 Page 20 of 29 possess a valid driving licence and rather was having a fake driving licence at the time of accident. In this regard, Insurance Company has got examined R3W1, Shri Kanwar Kochhar, Manager (Legal), M/s ICICI Lombard General Insurance Company Ltd. who has averred that the driving licence of the respondent No. 1/ Bittoo Singh was a fake driving licence and the respondent No. 1 driver has been charged under Section 279/338/465/468/471/474 IPC and it clearly shows that offending vehicle was being driven in violation of the terms of the insurance policy and that the insured had entrusted the vehicle to an unauthorized person who did not have a valid and effective driving licence at the time of accident. The learned counsel for R3/Insurance Co. has argued that the respondent No. 3/Insurance Company is not liable to indemnify the insured as there is a clear breach of terms and conditions of the insurance policy. It has been further argued by the learned counsel for R3/Insurance Co. that the evidence of Shri Rajeev Arora, RW1 examined on behalf of R2 is without any proper authorization from R2/ M/s Delhi Waste Management Ltd and the same is beyond pleadings and is not admissible in law as the entire Suit No. 193/12 & 48/13 Page 21 of 29 written statement dated 31.07.2013 filed on behalf of R2 as well as the entire evidence affidavit, Ex. RW1/1 of Shri Rajeev Arora is silent about the memorandum of understanding dated 28.12.2011 between Delhi Waste Management Ltd and M/s Pitambaras Transport Services which is being relied by the learned counsel for R2. Per contra, the learned counsel for respondent No. 2 has argued that Shri Rajeev Arora is a representative of R2/ M/s Delhi Waste Management Ltd and that a Special Power of Attorney, Ex. R1W1/A has been executed by Shri Kishore Kumar Thakur, Director of M/s Delhi Waste Management in favor of Shri Rajeev Arora. The learned counsel for R2 has further argued that no official from Licencing Authority, Mathura has been got examined by R3/Insurance Co. and no notice under Order 12 Rule 08 CPC had been issued by the Insurance Co. to the R2/insured. The learned counsel for R2 has further argued that RW1, Shri Rajeev Arora is the Attorney of respondent No. 2 and has averred that the TATA Ace bearing registration No. DL1LR4464 was duly insured at the time of accident and was having valid and effective permit and registration certificate and fitness. It has been averred in para 07 of the evidence affidavit, Suit No. 193/12 & 48/13 Page 22 of 29 Ex. RW1/1 that respondent No. 2/ M/s Delhi Waste Management Ltd had completed all legal formalities and that it was not in the knowledge of respondent No. 2 that the vehicle was plied by respondent No. 1 with forged driving licence. During his cross examination on 17.10.2013, RW1, Shri Rajeev Arora has admitted that neither the Special Power of Attorney, Ex. RW1/A and Ex. RW1/A1 nor the written statements dated 31.07.2013 filed on record bear any stamp or seal of R2/ M/s Delhi Waste Management Ltd. He further admitted that he is not aware about the names or the number of the Directors of M/s Delhi Waste Management Ltd and volunteered to say that he knew only Sh Kishore Kumar Thakur who was one of the Directors of R2/ M/s Delhi Waste Management Ltd. He also admitted during his cross examination on 17.10.2013 that respondent No. 1, Shri Bittoo Singh is not employed with R2/ M/s Delhi Waste Management Ltd and that he is not aware whether respondent No. 1 is facing trial in respect of FIR No. 273/12, PS Sarita Vihar or not. The learned counsel for respondent No. 3/Insurance Co. has argued that pursuant to the directions passed by the Hon'ble High Court of Delhi in FAO No. 842/03 in case titled "Rajesh Tyagi Vs. Suit No. 193/12 & 48/13 Page 23 of 29 Jaiveer singh" and the Claims Tribunal Agreed Procedure being followed by the police, a Detailed Accident Report has been filed by the police in respect of FIR No. 273/12, PS Sarita Vihar and the same also records that the driving licence of the driver/ respondent No. 1, Bittoo Singh was found to be fake and hence, Section 465/468/471/474 IPC were added in the charge sheet/ final report under Section 173 Cr.P.C., Ex. PW1/7 filed by the police and that the R3/ Insurance Co. strongly relies on the Detailed Accident Report filed by the police. Admittedly, RW1, Shri Rajeev Arora is neither employee nor Director nor authorized representative of the Board of Directors of M/s Delhi Waste Management Ltd./ R2. Even the Power of Attorney, Ex. R1W1/A and Ex. R1W1/A1 (filed on record of Suit No. 48/13) does not bear any stamp or seal of the company/ M/s Delhi Waste Management Ltd. No Board of Director's resolution of R2/ M/s Delhi Waste Management Ltd has been brought on record which authorizes Shri Rajeev Arora or Shri Kishore Kumar Thakur to represent the R2/ M/s Delhi Waste Management Ltd in this case or elsewhere. The respondent No. 2/ M/s Delhi Waste Management Ltd is a limited company and is a legal entity and Suit No. 193/12 & 48/13 Page 24 of 29 the offending vehicle has been purchased and insured in the name of R2/ M/s Delhi Waste Management Ltd. No official from the insured company/ M/s Delhi Waste Management Ltd who is the registered owner of the offending vehicle has cared to appear or depose in favour of R2/ M/s Delhi Waste Management Ltd.
The learned counsel for R2 has placed reliance on the judgments of New India Assurance Co. Ltd Vs Mithlesh & Ors decided on 01.05.2012 by Hon'ble High Court of Delhi; Shri Deepak Kumar Vs National Insurance Co. Ltd decided on 07.02.2008 by Hon'ble High Court of Delhi; National Insurance Co. Ltd Vs Swaran Singh decided on 05.01.2004 by the Hon'ble Supreme Court; Narcinva Vs Kamat & Anr Etc Vs Alfred Antonio Doe Martins & Ors decided on 25.04.1985 by Hon'ble Supreme Court; United India Insurance Co. Ltd Vs Lehru decided by the Hon'ble Supreme Court; National Insurance Co. Ltd Vs Mosomat Asha Devi and Ors decided on 29.11.2011 by Hon'ble High Court of Patna but all these judgments are distinguishable from the facts of the present case as the registered owner/ insurer of the offending vehicle in the said cases had satisfied themselves by taking the driving test of the driver and also checking the driving licence of the driver Suit No. 193/12 & 48/13 Page 25 of 29 which was apparently found by them to be genuine one. However, in the present case no official from the registered owner/ insured/ M/s Delhi Waste Management Ltd has cared to enter into witness box. RW1, Shri Rajeev Arora cannot be considered to be the authorized representative of R2/ M/s Delhi Waste Management Ltd in the absence of any board resolution in his favour and in the absence of any seal of stamp of the respondent No. 2/ M/s Delhi Waste Management Ltd on the Special Power of Attorney, Ex. RW1/A and Ex. RW1/A1. Even otherwise the entire evidence affidavit, Ex. RW1/1 of Shri Rajeev Arora is silent about the name of the official of the respondent No. 2 who had conducted the formalities and taken the test of R1 prior to giving job to respondent No. 1 as stated by him in para 07 of his evidence affidavit. In these circumstances and particularly in view of the Detailed Accident Report filed by the IO/ HC Veer Das and the Final Report under Section 173 Cr.P.C., Ex. PW1/7 filed by police in respect of FIR No. 273/12, PS Sarita Vihar, it is evident that the respondent No. 1 was not having a valid and effective driving licence as he has been chargesheeted under Section 279/338/465/468/471/474 IPC and violation of terms and Suit No. 193/12 & 48/13 Page 26 of 29 conditions of the Insurance policy by the insured/ respondent No. 2 is writ large and the respondent No. 3/ Insurance company has established breach of terms and conditions of the Insurance policy by the insured/ respondent No. 2. In view of the law laid down by the Hon'ble Supreme Court of India, I hereby order that insurance company is entitled for recovery rights from the driver and owner of the offending vehicle but only after disbursement of the award amount to the petitioners in terms of judgment of Hon'ble Supreme Court in case titled "National Insurance Company Limited Vs. Swaran Singh" (AIR 2004 SC 1531).
27. The respondent No. 3, being the insurer of the offending vehicle at the time of accident, is jointly and severally liable with the other respondents who are the driver and registered owner of the offending vehicle. Accordingly, the respondent No. 3 i.e. M/s ICICI Lombard General Insurance Co. Ltd. is directed to deposit the award amount within a period of 30 days. In case of any delay, it shall be liable to pay interest at a rate of 12% per annum for the period of delay.
Suit No. 193/12 & 48/13 Page 27 of 29
28. In terms of the directions passed by the Hon'ble High Court of Delhi in its judgment titled as "Amod Kumar Ray & Ors Vs Raj Kumar Chauhan & Ors" {CM(M) 649/2011 decided on 25.05.2011}, the Insurance Company shall deposit the award amount in the State Bank of India, District Courts Saket, New Delhi in the name of the petitioners in terms of the award and shall file the compliance report. It is made clear that at the time of the deposit of the award amount with the bank, the Insurance Company shall specifically mention the suit no., title of the case as well as date of decision with the name of court on the back side of the cheque. The insurance company shall also file a copy of the award attested by its own officer to the bank at the time of deposit of the amount with the bank.
29. The copy of this award be given to the respondents as well as to the petitioners free of cost. The petitioners shall approach the State Bank of India, District Court Saket, New Delhi for opening the account. The Manager of the Bank is directed to comply the award. The Bank Manager is directed to release the award amount to the petitioners.
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30. Put up for compliance report to be filed by the Insurance company on 04.03.2014. The petitions stand allowed and disposed off accordingly. The inquiry file be consigned to record room after completion of necessary formalities.
Announced in the open court (PREM KUMAR BARTHWAL)
on 04.01.2014 PO: MACT, SOUTH EAST01,
NEW DELHI
Suit No. 193/12 & 48/13 Page 29 of 29