Delhi District Court
Sh. Ganesh Jha vs Sh. Kuldeep on 10 June, 2022
MACP No. 4281/16; FIR No. 312/10;
IN THE COURT OF SH. VINOD YADAV,
PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNAL,
NORTH DISTRICT,ROHINI COURTS, DELHI
MAC Petition No. 4281/16
1. Sh. Ganesh Jha,
S/o Sh. Dukhan Chand Jha,
(Father of deceased)
(Deleted from array of petitioners vide order dated 08.10.2021 as he
had expired on 04.05.2020)
2. Smt. Bhagwati Devi,
W/o Late Sh. Ganesh Jha,
(Mother of deceased)
R/o H.No. 119, Suraj Park,
Sector - 18, Rohini,
Delhi.
.......Petitioners
VERSUS
1. Sh. Kuldeep,
S/o Sh. Laxman,
R/o Village Ashra Kheri,
PS. Bahadrugarh,
District Jhajjar,
Haryana.
(Driver)
2. Sh. Prahlad,
S/o Sh. Lal Chand,
(Registered owner)
(Proceedings against him abated vide order dated 15.04.2019)
Smt. Bhagwati Vs. Kuldeep & Ors. Page 1 of 25
MACP No. 4281/16; FIR No. 312/10;
3. Reliance General Insurance Co. Ltd.,
R.O. 19, Reliance Centre,
Wall Chand Hira Nand Marg,
Baliard Estate,
Mumbai.
(Insurer)
.......Respondents
Date of Institution : 15.07.2015
Date of Arguments : 03.06.2022
Date of Decision : 10.06.2022
APPEARANCES:
Sh. K.R. Sharma, adv for petitioners/Lrs of deceased. Sh. Jitender Sharma, Ld. Counsel for driver.
Proceedings against the registered owner have already abated. Sh. M. Awasthi, Ld. Counsel for insurance co.
Petition under Section 166 & 140 of M.V. Act, 1988 for grant of compensation AWARD
1. The petitioner has filed the present claim petition U/s 166/140 M.V Act seeking compensation to the tune of Rs. 40,00,000/ from the date of accident till its realization for the fatal injury sustained by Sh. Pintu Kumar Jha (deceased in the present case) in Motor Vehicular Accident which occurred on 27.07.2010 at Sai Petrol Pump, near Patti Kalyana, PS. Samalkha, Panipat, Haryana, involving Truck bearing registration no. HR63A9625 (offending vehicle) which was allegedly lying parked Smt. Bhagwati Vs. Kuldeep & Ors. Page 2 of 25 MACP No. 4281/16; FIR No. 312/10;
dangerously on the road without displaying parking lights, indicators, reflectors, or any other signals/signs by respondent no. 1.
2. It is averred that Pintu Kumar Jha was aged about 23 years; he was driver by profession and was earning Rs. 15,000/ per month at the time of accident. On 27.07.2010, Sh. Pintu Kumar Jha (deceased herein) was going in his vehicle bearing registration no. HR55A3566(Canter) which was being driven by him as per rules and regulations and at the correct side of the road. It is further averred that the aforesaid vehicle was loaded with goods at the time of accident. At about 8:00 pm, when the aforesaid Canter reached at Sai Petrol Pump, near Patti Kalyana, PS. Samalkha, Panipat, Haryana, the same rammed against the vehicle i.e. truck bearing registration no. HR63A9625 which was standing in the middle of the road without any barricade or any sign and in contravention of rules of traffic. Due to the aforesaid forceful impact, Sh. Pintu Kumar Yadav sitting in the aforesaid Canter sustained fatal injuries. He was removed to Government Hospital, Panipat, Haryana, wherefrom he was referred to Government Hospital, where he was declared dead. Postmortem on the dead body of deceased was conducted. FIR No. 312/10 U/s 279/304A IPC was registered at PS. Samalkha, Panipat, Haryana with regard to said accident. It is further averred that the offending truck was owned by respondent no. 2 and same was insured with Reliance General Insurance Company Smt. Bhagwati Vs. Kuldeep & Ors. Page 3 of 25 MACP No. 4281/16; FIR No. 312/10;
Limited/Respondent no.3. Thus, all the respondents are jointly and severally liable to pay the compensation amount.
3. In his WS, the respondent no. 1 i.e. driver has raised preliminary objections that he is not liable to pay any compensation to the petitioners as the accident was not caused by his rash and negligent driving of his vehicle. However, he has admitted that the aforesaid truck bearing registration no. HR63A9625 was duly insured with respondent no. 3 at the time of accident. On merits, he has denied the averments made in the claim petition and has prayed for its dismissal.
4. In its WS, the respondent no. 3/insurance company has claimed that present petition is not maintainable and is liable to be dismissed as the vehicle of deceased had hit the alleged offending vehicle bearing no. HR63A9625 from back. Thus, accident occurred due to sole negligence of deceased. It has admitted that vehicle bearing no. HR63A 9625 was insured with it at the time of accident. It has denied the averments made in the claim petition and has prayed for its dismissal.
5. Before proceedings further, it may be noted that the interest on the award amount, if any passed in favour of the petitioners was curtailed w.e.f. 07.02.2020 till further order as the petitioners had failed to conclude their evidence despite grant of sufficient opportunities. PE was concluded Smt. Bhagwati Vs. Kuldeep & Ors. Page 4 of 25 MACP No. 4281/16; FIR No. 312/10;
by the petitioners on 08.10.2021. Thus, their right to claim interest, if any, has been curtailed from 07.02.2020 till conclusion of PE i.e. 08.10.2021.
6. From pleadings of the parties, the following issues were framed by Ld. Predecessor vide order dated 15.04.2019:
1) Whether the deceased Sh. Pintu Kumar Jha suffered fatal injuries in road traffic accident on 27.07.2010 near Sai Petrol Pump, Near Patti Kalyana, PS. Samalkha, Haryana, within the jurisdiction of PS. Samalkha due to rashness and negligence on the part of the driver Kuldeep/R1 who was driving the vehicle bearing registration no. HR63A9625, owned by Sh. Prahlad/R2(since deceased) and insured with Reliance General Insurance Co. Ltd./R3?
OPP.
2) Whether the Lrs of deceased are entitled to any compensation if so to what amount and from whom?OPP
3) Relief.
7. In support of their claim, the petitioners have examined two witnesses i.e. PW1 Sh. Rajinder Singh (IO of the case) and PW2 Smt. Bhagwati Devi (mother of deceased) and their evidence was closed vide order dated 08.10.2021. The respondent no. 1 & 2 did not adduce any evidence and their evidence was closed vide order dated 03.12.2021.
Smt. Bhagwati Vs. Kuldeep & Ors. Page 5 of 25MACP No. 4281/16; FIR No. 312/10;
Respondent no. 3/insurance company has examined only one witness i.e. Sh. Vikran Chauhan as R3W1 and its evidence was also closed vide order dated 03.12.2021.
8. I have heard the arguments addressed by ld counsels for the parties. I have also gone through the record. My findings on the issues are as under: ISSUE NO. 1.
9. For the purpose of this issue, the testimony of PW1 Sh. Rajinder Singh (IO of the case) is relevant. He deposed in his evidence that on 27.07.2010, he was posted at PS. Samalkha as ASI. He further deposed that on 28.07.2010, a telephone call was received at PS. Samalkha regarding lying of dead body of Sh. Pintu S/o Sh. Ganesh Jha at dead house, GH Hospital, Panipat and thereafter, he alongwith HC Anil went to GH Hospital, Panipat. He deposed that they received rukka from PS. City, Panipat and on receipt of said rukka, they reached government hospital, Panipat, near Dead House where Sh. Devender, S/o Sh. Bir Singh met him who had given his statement. He deposed that after completing the formalities, the papers were sent to PS. Samalkha for registration of FIR through HC Anil Kumar and after registration of FIR, they alongwith complainant Sh. Devender reached at Dead House, Panipat and he recorded the statement of Sh. Ganesh Jha and Sh. Deepak. He deposed that after completion of necessary formalities, the dead body of Sh. Pintu Smt. Bhagwati Vs. Kuldeep & Ors. Page 6 of 25 MACP No. 4281/16; FIR No. 312/10;
was sent for postmortem and after postmortem, the same was handed over to Legal heir of deceased. He also deposed that he alongwith Sh. Devender went to spot of accident Near Petrol Pump, Pattikanyana, G.T. Road, PanipatDelhi Road. He further deposed that there were two vehicles i.e. Canter No. HR55A3566 and Truck No. HR63A9625 in accidental condition. He prepared the site plan of the spot at the instance of Sh. Devender. He deposed that HC Anil Kumar after registration of FIR No. 312/10 u/s. 283/304A IPC, PS. Samalkha came back at the spot and handed over him copy of FIR. He further deposed that thereafter, they checked the aforesaid truck, where he found driving licence of driver Sh. Kuldeep S/o Sh. Laxman Singh and said driving licence was seized and seizure memo of the same was prepared. He deposed that both the aforesaid vehicles were taken to police station with the help of private vehicle and the same were taken into possession and seizure memos of both the said vehicles were prepared. He deposed that on 30.07.2010, one Prahlad Singh handed over driver Kuldeep Singh to the police. He further deposed that he made enquiry from driver Kuldeep Singh who told him that he was driving the vehicle no. HR63A9625 and disclosed him that his vehicle suddenly got stopped in the middle of the road and there was no indication of safety either side of the vehicle. He deposed that thereafter, he was arrested and memo of arrest was prepared and the signature of Prahlad was taken on the arrest memo as a witness. He deposed that at the same time, the complainant also came at the spot who handed over him Smt. Bhagwati Vs. Kuldeep & Ors. Page 7 of 25 MACP No. 4281/16; FIR No. 312/10;
RC of aforesaid Canter and the same was also taken into possession vide seizure memo. He further deposed that owner of offending vehicle Sh. Prahlad also handed over the insurance policy of aforesaid Truck to him and he produced driver Sh. Kuldeep before the court of Panipat from where he was released on bail. He deposed that on 30.07.2010, both the vehicles were got mechanically inspected at PS. Samalkha and after completion of the investigation, he had filed the chargesheet against the driver Kuldeep Singh before the concerned Court.
10. During his crossexamination on behalf of insurance company, he deposed that he had retired since the year 2012. He deposed that he was not the eyewitness to the accident in question. He further deposed that when he had reached at the place of accident, he found that there was an accident involving vehicle no. HR55A3566 and HR63A9625. He admitted that vehicle no. HR55A3566 struck against the rear side of the vehicle no. HR63A9625. He deposed that the respondent no. 1 was arrested by him after three days from the date of accident. He further deposed that when he reached at the place of accident, he did not find respondent no. 1 there. He denied the suggestion that the accident had taken place due to the negligence on the part of deceased himself while driving the vehicle no. HR55A3566. He deposed that no permit was seized by him in respect of both the vehicles as the same were not produced by the owner of both the vehicles during investigation.
Smt. Bhagwati Vs. Kuldeep & Ors. Page 8 of 25MACP No. 4281/16; FIR No. 312/10;
11. Ld. Counsel for petitioners has heavily relied upon the criminal case record (Ex. PW2/2 colly) in order to bring home his point that the accident in question had occurred due to the negligent act of driver/R1 by parking his vehicle dangerously on the road without any parking light ON, indicator, reflector, or any other signals/signs. He further argued that respondent no. 1 Kuldeep was also chargesheeted by police for offences punishable U/s 283/304A IPC, which clearly establish that the accident had occurred due to rash and negligent driving of aforesaid vehicle by respondent no. 1.
12. On the other hand, counsel for insurance company vehemently argued that PW1 Sh. Rajinder Singh is undisputedly not an eye witness of the accident in question and no eye witness has been examined by petitioners during the course of inquiry. He, therefore, contended that the petitioners have failed to prove that the accident in question was caused due to the negligent act of driver/R1 by parking his vehicle dangerously on the road without any parking light ON, indicator, reflector, or any other signals/signs.
13. Instead of referring to the series of decisions on the point in issue, it may be noted that it is well settled legal position as laid down by Hon'ble Apex Court as well as by various High Courts in plethora of judgments delivered from time to time that in claim petitions preferred U/s Smt. Bhagwati Vs. Kuldeep & Ors. Page 9 of 25 MACP No. 4281/16; FIR No. 312/10;
160/144 M.V Act, the claimants have to prove on the basis of preponderance of probabilities that accident was caused due to rash and negligent driving of alleged offending vehicles by its drivers. At the same time, it is no more resintegra that claim petition filed under relevant provisions of M.V Act, is the outcome of social welfare legislation and the proceedings are summary in nature and do not require strict compliance of rules of evidence and pleadings. It needs no emphasis that in case replies filed by respondents, are evasive then it is deemed that they have admitted the averments made by the claimants. The purpose of granting compensation is to ameliorate the sufferings of the victims of Motor Vehicle Accidents and the niceties, hyper technicalities, procedural wrangles and tangles and mystic maybes have no role to play and same should not be any ground to dismiss the claim petitions and to defeat the rights of the claimants. While saying so, I am fortified by the decisions rendered by Hon'ble Apex Court in the cases titled as " N.KV. Bros (P) Ltd Vs. M. Karumai Ammal", 1980 ACJ 435 (SC); " Sohan Lal Passi Vs. P. Sesh Reddy", 1996 ACJ 1044 (SC) and " Dulcina Fernandes Vs. Joaquim Xavier Cruz", 2013 ACJ 2712 (SC). It is also relevant to mention here that while deciding claim petition under M.V Act, it is the duty of Claims Tribunal to follow the principles of justice, equity and good conscience and to adopt more realistic, pragmatic and liberal approach.
Smt. Bhagwati Vs. Kuldeep & Ors. Page 10 of 25MACP No. 4281/16; FIR No. 312/10;
14. The aforesaid issue recently came up for discussion before Hon'ble Apex Court in the case of "Vimla Devi & Ors. Vs. National Insurance Company Limited & Ors.", Civil Appeal No. 11042 of 2018, decided on 16.11.18. After referring to the previous judicial precedents on the point in issue and the fact that M.V. Act is a social welfare legislation, Hon'ble Apex Court held in para 29 of its judgment as under: "xxxxx
29. In our view, what more documents could be filed then the documents filed by the appellants to prove the factum of the accident and the persons involved therein.
xxxxx"
15. In the above cited decision, the facts were almost similar and the claimants had not examined any eyewitness. Still, Hon'ble Apex Court held that in view of filing of criminal case record including chargesheet showing that driver of alleged offending vehicle had been chargesheeted for causing the accident due to rash and negligent driving of said vehicle and the driver himself did not enter into witness box, claimants were able to prove the issue of accident being caused due to rash and negligent driving of said vehicle by said driver on the basis of preponderance of the probabilities.
16. Now, reverting back to the facts of the present case. No doubt, the petitioners have not examined any eye witness to prove the negligence on the part of driver of the alleged vehicle described above but Smt. Bhagwati Vs. Kuldeep & Ors. Page 11 of 25 MACP No. 4281/16; FIR No. 312/10;
nevertheless, there is ample material brought on record during the course of inquiry, which is sufficient to establish that the accident had occurred due to negligent act of driver/R1 in parking his vehicle dangerously on the road without taking proper precautions.
17. Moreover, the respondent no. 1 /driver of the alleged offending vehicle was the other material witness who could have thrown sufficient light as to how and under what circumstances, the accident in question took place but still he preferred not to contest the claim petition. He did not enter into witness box during the course of inquiry. Thus, an adverse inference is liable to be drawn against him for not entering into the witness box, to the effect that the accident occurred due to wrong parking of his vehicle in the middle of the road.
18. Though, it is argued on behalf of respondents that a false case has been registered against the respondent no.1 yet perusal of record shows that FIR No. 312/10 (supra) was registered at PS. Samalkha on 28.07.2010 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. HR63A9625 at the instance of petitioners herein. Further, the respondent no.1 namely Kuldeep (accused in State case) has been charge sheeted for offences punishable U/s 283/304A IPC Smt. Bhagwati Vs. Kuldeep & Ors. Page 12 of 25 MACP No. 4281/16; FIR No. 312/10;
by the investigating agency after arriving at the conclusion on the basis of investigation carried out by it that the accident in question had occurred due to negligent act of driver/R1 of parking his vehicle dangerously on the road without any parking light ON, indicator, reflector, or any other signals/signs. The respondent has not challanged his involvement as per the final report filed against him, before any Authority of Law.
19. Apart from above, copy of PM Report (which is part of criminal case record Ex. PW2/2 colly) of deceased, would show that his cause of death was hemorrhagic shock which is sufficient for causing death in ordinary cause of life. The injuries as noted in the relevant column with regard to external injuries, as mentioned therein, are consistent with the injuries which are sustained in motor vehicular accident. Again, there is no challenge to the aforesaid document from the side of respondents.
20. It is evident from the record that the respondent no. 1 was chargesheeted for offence u/s. 283 IPC. Section 283 IPC defines as under:
283. Danger or obstruction in public way or line of navigation.--Whoever, by doing any act, or by omitting to take order with any property in his possession or under his charge, causes danger, obstruction or injury to any person in any public way or public line of navigation, shall be punished with fine which may extend to two hundred rupees.
Smt. Bhagwati Vs. Kuldeep & Ors. Page 13 of 25MACP No. 4281/16; FIR No. 312/10;
21. In the light of aforesaid discussion, it can be safely held that the respondent no. 1 was negligent in parking his vehicle at the time of accident, due to which the accident in question occurred. Moreover, a perusal of site plan also shows (Page No. 31 of the criminal case record Ex. PW2/2 colly)that offending vehicle was standing in the middle of the road at the time of aciddent.
22. In view of the aforesaid discussion and the evidence which has come on record, it is held that the petitioners have been able to prove on the basis of pre ponderence of probabilities that Sh. Pintu Kumar Jha had sustained fatal injuries in road accident which took place on 27.07.2010 at Sai Petrol Pump, near Patti Kalyana, PS. Samalkha, Panipat, Haryana, involving Truck bearing registration no. HR63A9625 (offending vehicle) which was allegedly being parked dangerously on the road without any parking light ON, indicator, reflector, or any other signals/signs by respondent no. 1. Thus, issue no. 1 is decided in favour of petitioners and against the respondents.
LOSS OF DEPENDENCY
23. The claimants/petitioners are the parents of deceased. However, the father of deceased had expired during the course of inquiry and his name was deleted from the array of petitioners vide order dated 08.10.2021. PW2 Smt. Bhagwati Devi (mother of deceased) has deposed Smt. Bhagwati Vs. Kuldeep & Ors. Page 14 of 25 MACP No. 4281/16; FIR No. 312/10;
in her evidence by way of affidavit (Ex. PW2/A) that Pintu Kumar Jha was aged about 23 years; he was working as driver and was earning Rs. 15,000/ per month at the time of accident. She further deposed that both the petitioners were totally dependent upon the earnings of deceased at the time of accident.
24. During her cross examination on behalf of insurance company, she deposed that he was not an eyewitness to the accident. She further deposed that she did not have any document to show that her deceased son was earning Rs. 15,000/ per month while working as a driver. She denied the suggestion that her deceased son was not earning Rs. 15,000/ per month. She denied the suggestion that none of the petitioners were financially dependent upon the earning of the deceased.
25. 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.
26. As already noted above, PW1 Smt. Bhagwati Devi, who is mother of deceased admitted during her cross examination that she had not Smt. Bhagwati Vs. Kuldeep & Ors. Page 15 of 25 MACP No. 4281/16; FIR No. 312/10;
filed any document to show that her deceased son was earning Rs. 15,000/ per month at the time of accident. Petitioners have also filed copy of driving licence of deceased. It is pertinent to mention here that at the time of accident, deceased was driving Canter. After considering the entire facts and documents filed alongwith the claim petition, I am of the considered opinion that deceased was skilled driver at the time of accident. However, for want of cogent and definite evidence being led by petitioners with regard to actual monthly income of deceased, his notional monthly income is being taken as equivalent to that of skilled worker under Minimum Wages Act applicable during the relevant period. The minimum wages of a skilled worker were Rs. 6,448/ per month as on the date of accident which is 27.07.2010.
27. As per the case of petitioners, deceased Pinku Kumar Jha was aged about 23 years at the time of accident. In the copy of driving licence of deceased, the date of birth of deceased is mentioned as 04.06.1987. The date of accident is 27.07.2010. In view of the aforesaid document filed by the petitioners, the age of deceased was about 23 years at the time of accident. Hence, the age of deceased is accepted as 23 years at the time of accident. Hence, the multiplier of 18 would be applicable in view of pronouncement made by Constitutional Bench of Apex Court in the case titled as "Sarla Verma Vs.DTC." 2009 ACJ 1298 SC.
Smt. Bhagwati Vs. Kuldeep & Ors. Page 16 of 25MACP No. 4281/16; FIR No. 312/10;
28. Considering the fact that deceased was aged about 23 years at the time of accident and was not having permanent job at that time, future prospects @ 40% has to be awarded in favour of petitioners in view of pronouncement made by Constitutional Bench of Apex Court in the case titled as "National Insurance Company Ltd. Vs. Pranay Sethi & Ors." Civil Appeal No. 6961/2015 decided on 31.10.2017, as well as in view of decision of Hon'ble High Court of Delhi in appeal bearing MAC APP No. 798/2011 titled as "Bajaj Allianz General Insurance Company Ltd. Vs. Pooja & Ors", decided on 02.11.17.
29. It is relevant to note here that there were two petitioners in the present case i.e. parents of deceased at the time of filing of claim petition. However, petitioner no. 1 Sh. Ganesh Jha, father of deceased has expired during the course of inquiry. Since, the deceased was unmarried at the time of accident, there has to be deduction of one half as held in the case titled as "Sarla Verma Vs. Delhi Transport Corporation", 2009 ACJ 1298 SC. Thus, the total of loss of dependency would come out to Rs. 9,74,937.60 paise (Rs. 6448/ X 1/2 X 140/100 X 12 X 18). Hence, a sum of Rs. 9,75,000/ (rounded off)is awarded under this head in favour of the petitioners.
LOSS OF LOVE & AFFECTION
30. After the celebrated judgment of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors. mentioned supra and recent Smt. Bhagwati Vs. Kuldeep & Ors. Page 17 of 25 MACP No. 4281/16; FIR No. 312/10;
judgment titled New India Assurance Company Limited versus Somwati & Ors., Civil Appeal no. 3093 of 2020 dated 07.09.2020 the petitioners are not entitled to be compensated under this head. Further Hon'ble Delhi High Court in appeal titled as "Bajaj Allianz General Insurance Company Ltd. Vs. Pooja & Ors", mentioned supra has been pleased to observe in para 18 of the judgment that the constitution bench decision in Pranay Sethi (supra) does not recognize any other nonpecuniary head of damages. Hence, no amount of compensation is being awarded under this head.
LOSS OF CONSORTIUM
31. In view of the judgment of Hon'ble Supreme Court in case titled as New India Assurance Company Limited versus Somwati & Ors., Civil Appeal no. 3093 of 2020, dated 07.09.2020 I am of the considered opinion that parents of deceased are entitled for payment of Rs. 40,000/ each towards loss of consortium. Consequently, a sum of Rs. 80,000/ is awarded to the petitioners under this head.
LOSS OF ESTATE & FUNERAL EXPENSES
32. 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 Smt. Bhagwati Vs. Kuldeep & Ors. Page 18 of 25 MACP No. 4281/16; FIR No. 312/10;
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. 9,75,000/
2. Loss of consortium Rs. 80,000/
3. Loss of Estate & Funeral Rs. 30,000/ Expenses Total Rs. 10,85,000/
33. Now, the question which arises for determination is as to which of the respondents is liable to pay the compensation amount. Counsel for insurance company sought to avoid the liability of insurance company to pay the compensation amount on the ground that the offending vehicle was not having any valid permit and fitness certificate at the time of accident in question. In order to substantiate the said plea, insurance company has examined Sh. Vikrant Chauhan, Proposal Manager(Legal), Reliance General Insurance Co. Ltd. as R3W1. Said witness has deposed in his evidence by way of affidavit Ex. R3W1/A that the insurance company has sent the notice u/o 12 Rule 8 CPC to the respondents no. 1 & 2 for production of driving licence, permit and fitness of offending vehicle. He has relied upon copy of notice Ex. R3W1/2 and its postal receipts as Ex. R3W1/3 and Ex. R3W1/4. He further deposed that notice was also sent by registered post to the respondent no. 2 on 22.09.2015 and exhibited the copy of notice dated 22.09.2015 as Ex. R3W1/5 and its postal receipt as Smt. Bhagwati Vs. Kuldeep & Ors. Page 19 of 25 MACP No. 4281/16; FIR No. 312/10;
Ex. R3W1/6. He deposed that inspite of sending the aforesaid notices by the respondent no.3, the respondents no. 1 & 2 neither produced the documents so demanded nor replied the same. Thus, nonproduction of driving licence of respondent no. 1, permit and fitness of offending vehicle no. HR63A9625 by respondents no. 1 & 2 tends to be breach of terms and conditions of the insurance policy. During his crossexamination on behalf of petitioners, he denied the suggestion that insurance company is liable to pay the compensation amount to the petitioner in the present case. Respondents no. 1 & 2 did not crossexamined this witness.
34. 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.
35. 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 Smt. Bhagwati Vs. Kuldeep & Ors. Page 20 of 25 MACP No. 4281/16; FIR No. 312/10;
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.
36. Now reverting back to the facts of the case. During the course of arguments, Ld. Counsel for insurance company fairly conceded that driving licence of the respondent no. 1 was duly verified by the insurance company and the same was found genuine. It is pertinent to mention here that respondent no. 2 i.e. registered owner had expired and proceedings against him had abated vide order dated 15.04.2019. Lrs of deceased registered owner failed to bring on record any valid permit and fitness certificate in respect of the offending vehicle. Since, they have failed to file any reply to said notice, an adverse inference is liable to be drawn against them that there was no valid permit in respect of offending vehicle 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 through his Lrs as provided in Section 155 of M.V. Act. Hence, insurance company is entitled to recovery rights against the Lrs of deceased registered owner. Issue no. 2 is decided accordingly.
Smt. Bhagwati Vs. Kuldeep & Ors. Page 21 of 25MACP No. 4281/16; FIR No. 312/10;
ISSUE NO. 3 RELIEF
37. In view of my findings on issues no. 1 and 2, I award a compensation of Rs. 10,85,000/ alongwith interest @ 9% per annum in favour of petitioner and against the respondents w.e.f. date of filing of the petition i.e. 15.07.2015 (except for the period of delay w.e.f. 07.02.2020 till conclusion of PE i.e. 08.10.2021) till the date of its realization (Reliance placed on judgment "Oriental Insurance Company Ltd. Vs. Sangeeta Devi & Ors bearing MAC. APP. 165/2011 decided on 22.02.2016). However, it would be open to the insurance company to recover the award amount from the LRs of deceased registered owner after payment of compensation amount, in accordance with law.
APPORTIONMENT
38. Statement of petitioner/claimant in terms of Clause 29 MCTAP was recorded on 03.06.2022. Having regard to the facts and circumstances of the case and in view of the statement of claimant, a sum of Rs. 4,00,000/ (Rupees Four Lakhs Only) is directed to be immediately released to her through her saving bank account no. 40683097507 with State Bank of India, District Court Rohini Branch, Delhi, having IFSC Code SBIN0010323 and remaining amount is directed to be kept in the form of FDRs in the multiples of Rs. 25,000/ each for one month, two months, three months and so on and so forth having cumulative interest.
Smt. Bhagwati Vs. Kuldeep & Ors. Page 22 of 25MACP No. 4281/16; FIR No. 312/10;
39. All the FDRs to be prepared as per aforesaid directions, shall be subject to the following conditions:
(a) The Bank shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the claimant(s) i.e. the savings bank account(s) of the claimant(s) shall be an individual savings bank account(s) and not a joint account(s).
(b) The original fixed deposit shall be retained by the bank in safe custody. However, the statement containing FDR number, FDR amount, date of maturity and maturity amount shall be furnished by bank to the claimant(s).
(c) The monthly interest be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant(s) near the place of their residence.
(d) The maturity amounts of the FDR(s) be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant(s) near the place of their residence.
(e) No loan, advance, withdrawal or premature discharge be allowed on the fixed deposits without permission of the Court.
(f) The concerned bank shall not to issue any cheque book and/or debit card to claimant(s). However, in case the debit card and /or cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount. The bank shall debit card(s) freeze the account of the claimant(s) so that no debit card be issued in respect of the account of the claimant(s) from any other branch of the bank.
(g) The bank shall make an endorsement on the passbook of the claimant(s) to the effect that no cheque book and/or debit card have been issued and shall not be issued without the permission of the Court and Smt. Bhagwati Vs. Kuldeep & Ors. Page 23 of 25 MACP No. 4281/16; FIR No. 312/10;
claimant(s) shall produce the passbook with the necessary endorsement before the Court on the next date fixed for compliance.
(h) It is clarified that the endorsement made by the bank alongwith the duly signed and stamped by the bank official on the passbook(s) of the claimant(s) is sufficient compliance of clause(g) above.
(i) The petitioner is directed to open a Motor Accident Claims Annuity (Term) Deposit Account (MACAD) in terms of order dated 07.12.2018 of Hon'ble Justice J.R. Midha in case titled as Rajesh Tyagi and Others Vs. Jaibir Singh and Others F.A.O No. 842/03 as per clause 31 of MCTAP and form VIII titled as Motor Accident Claims Annuity Deposit (MACAD) Scheme as directed in the said order.
(j) Concerned Manager, SBI, Rohini Court branch is further directed to disburse the FD amount in Motor Accident Claims Annuity Deposit (MACAD) Scheme account as directed by Hon'ble Delhi High Court vide order dated 07.12.18, on completing necessary formalities as per rules.
40. 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 amount of Rs. 4,00,000/ immediately to aforesaid petitioner in her aforesaid saving bank account mentioned supra, on completing necessary formalities as per rules. He be further directed to keep the said amount in fixed deposit in its own name till the 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 petitioner and also to Smt. Bhagwati Vs. Kuldeep & Ors. Page 24 of 25 MACP No. 4281/16; FIR No. 312/10;
counsel for the insurance company for compliance. Copy of this award alongwith one photograph each, specimen signatures, copy of bank passbooks and copy of residence proof of the petitioners, be sent to Nodal Officer of SBI, Rohini Court, Branch, Delhi for information and necessary compliance. Form XV & Form XVII in terms of MCTAP are annexed herewith as AnnexureA. Copy of order be also sent to concerned M.M and DLSA as per clause 31 and 32 of MCTAP.
Announced in the open Court on 10.06.2022 (VINOD YADAV) Judge MACT2 (North) Rohini Courts, Delhi Certified that above award contains 25 pages and each page is signed by me.
(VINOD YADAV) Judge MACT2 (North) Rohini Courts, Delhi Smt. Bhagwati Vs. Kuldeep & Ors. Page 25 of 25