Delhi District Court
Smt.Gurmeet Kaur W/O Late Harjinder ... vs Sh. Vijay Kumar S/O Sh Ram Chander Ram on 18 January, 2019
IN THE COURT OF SH. RAKESH KUMAR-III
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNAL-02:
(CENTRAL):DELHI
New Suit No. 57075/16
1. Smt.Gurmeet Kaur W/O Late Harjinder Singh
2. Sh. Sukhwant Singh S/O Late Harjinder Singh
3. Sh Jaswant Singh S/O Late Harjinder Singh
All R/o House No. T-136A, T -Block, Vishnu Garden, Delhi.
4. Smt Kamaljeet Kaur W/O Sh Harvinder Singh
R/O WZ-424, Second Floor, Gali No-19, Sant Garh, Delhi.
..........Petitioners in the First petition.
New Suit No. 57358/16
S. Swaran Singh S/o. Sh. Charan Singh
(Injured/Petitioner is under medical treatment
and represented through his wife namely
Smt. Charanjit Singh as Attorney/Authorized on behalf of her
husband)
R/o H.No. WZ-283/197,
Maddi Wali Gali No. 7,
Vishnu Garden, New Delhi - 110018.
............Petitioner in the Second Petition
Case No. 56563/16
Smt. Parveen Kaur W/o. S. Preet Pal Singh
R/o. H. No. D-14/35, Ground Floor, Tilag Nagar, Delhi.
...............Petitioner in the Third Petition
Consolidated New Cases bearing No. 57075/16, 57358/16, 56563/16, 56573/16, 56574/16 & 56469/16 Page No.1/40
New Case No. 56573/16
Ms. Gurdeep Kaur (since died)
Legal Heirs as under :-
1. S. Bhupinder Singh Alag S/o. S. Nirmal Singh
2. Smt. Harjeet Kaur W/o. Sh. Bhupinder Singh Alag
Both R/o. H. No. 20B/73A, Block - 20B, Tilak Nagar , Delhi.
...............Petitioner in the Fourth Petition
New Case No. 56574/16
Smt. Harjeet Kaur W/o. S. Bhupinder Singh
R/o. H. No. 20B/73-A, Block-20B, Tilak Nagar, Delhi.
.................Petitioner in the Fifth Petition
Case No. 56469/16
Master Subhag Singh S/o. S. Preet Pal Singh
(Petitioner being minor is represented through
his mother Smt. Parveen Kaur Natural Guardian)
R/o. H. No. D-14/35, Ground Floor, Tilag Nagar, Delhi.
....................Petitioner in the Sixth Petition
VERSUS
1 Sh. Vijay Kumar S/O Sh Ram Chander Ram
R/O Village Dumari, P.O Bahadurpur
P.S Tarwara, Distt-Siwan, Bihar.
(Driver of vehicle no. HR-38K-8774 (TATA 709 Truck)
2. M/S Suraj Transport Roadways Pvt Ltd
316, Daya Basti, Old Rohtak Road,
Consolidated New Cases bearing No. 57075/16, 57358/16, 56563/16, 56573/16, 56574/16 & 56469/16 Page No.2/40
Delhi-35.
(Registered Owner of vehicle no. HR-38K-8774 (TATA 709 Truck)
3. National Insurance Company Ltd.
8390, Roshnara Road,Delhi-07
(insurer)
4. Gurmeet Singh S/o. Sh. Darshan Singh
R/o. WZ-243/1, Gali No. 3, Virender Nagar,
Janakpuri, New Delhi - 110058.
(Driver cum owner of vehicle no. DL-IV-8358 (RTV Mini Bus)
.......... Respondents in all the petitions
Date of institution of all the petitions : 20/05/2013(DAR) Date of reserving judgment/order : 18/01/2019 Date of pronouncement : 18/01/2019 Consolidated New Cases bearing No. 57075/16, 57358/16, 56563/16, 56573/16, 56574/16 & 56469/16 Page No.3/40 CONSOLIDATED JUDGMENT-CUM-AWARD:
INFORMATION IN TERMS OF PROVISIONS OF THE MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE (MCTAP) Date of Accident 23.03.2013 Date of intimation of the accident by 16.03.2013 the Investigation Officer to the Claims Tribunal (Clause2) Date of intimation of the accident by 20.05.2013 the Investigation Officer to the Insurance Company (Clause2) Date of filing of the Report under 20.05.2013 section 173 Cr.PC before the Metropolitan Magistrate (Clause 10) Date of filing of Detailed Accident 20.05.2013 Information Report(DAR) by the Investigation Officer before Claims Tribunal (Clause) Date of service of DAR on the 20.05.2013 Insurance Company (clause11) Date of service of DAR on the 20.05.2013 claimant(s)(Clause11) Whether DAR was complete in all Yes respects? ( Clause11) If not state deficiencies in the DAR No Whether the police has verified the Yes documents filed with DAR? (clause4) Whether there was any delay or No deficiency on the part of the Investigation Officer? If so, whether any action/ direction warranted?
Date of appointment of the Not Mentioned Designated Officer by the Insurance Company
Name, address and contact number Not Mentioned of the Designated Officer of the Insurance Company(Clause 19) Whether the Designated officer of the No insurance Company submitted his Consolidated New Cases bearing No. 57075/16, 57358/16, 56563/16, 56573/16, 56574/16 & 56469/16 Page No.4/40 report within 30 days of the DAR?
(Clause 21) Whether the Insurance Company No admitted the liability? If so, whether the Designated Officer of the Insurance Company fairly computed the compensation in accordance with law. (Clause22) Whether there was any delay or No deficiency on the part of the Designated officer of the Insurance Company? If so whether any action/ direction warranted?
Date of response of the claimant(s) to 03.09.2013 the offer of the Insurance Company?
(Clause 23) Date of Award 18.01.2019 Whether the award was passed with No the consent of the parties? (Clause
22) Whether the claimants(s) examined Yes at the time of passing of the award to ascertain his/ their financial condition? (Clause 26) Whether the photographs, specimen Yes signatures, proof of residence and particulars of bank account of the injured/ legal heirs of the deceased taken at the time of passing of the award? (Clause26) Mode of disbursement of the award Mentioned in the award amount to the claimant(s) (Clause 28) Next Date of compliance of the 18.02.2019 award(Clause30) Consolidated New Cases bearing No. 57075/16, 57358/16, 56563/16, 56573/16, 56574/16 & 56469/16 Page No.5/40 CONSOLIDATED JUDGMENT CUM AWARD:
1. This consolidated judgment cum award shall decide the petitions under Section 166 and 140 of Motor Vehicle Act 1988 as amended up to date (hereinafter referred as Act) filed by petitioners bearing new suit no. 57075/16 (old suit no. 266/13) for grant of compensation for the death of Sh. Harjinder Singh as well as for the injuries sustained by injured in new suits bearing no. 57358/16, 56563/16, 56573/16, 56574/16 & 56469/16 in the road vehicular accident.
2. Vide this consolidated judgment cum award, I shall dispose of all six petitions bearing suit Nos. new suits bearing no. 57075/16, 57358/16, 56563/16, 56574/16, 56573/16 & 56469/16 (hereinafter called the first petition; the second petition, third petition, fourth petition, fifth petition and sixth petition respectively) filed by the petitioners u/s 166 and 140 Motor Vehicle Act 1988 amended upto date ( hereinafter referred as Act). Since all these petitions arise out of the same motor vehicle accident, they can be conveniently disposed off altogether.
3. All these cases were consolidated vide order dated 03/09/2013. The New Suit No-57075-16 (Old Suit No. 266/13) ordered to be treated as lead case.
4. The case of the petitioners in all the petitions is that on 14.03.2013 at about 3:55 AM, deceased along with other passengers were travelling in RTV Mini Bus bearing no. DL-IV-8358, which was being driven by its driver at a slow speed and on his correct side of the road with observing the traffic rules. The deceased along with other passengers were going towards their residence after attending Satsang Gurbani. When the deceased along with other passengers and RTV driver reached at Inderlok Consolidated New Cases bearing No. 57075/16, 57358/16, 56563/16, 56573/16, 56574/16 & 56469/16 Page No.6/40 Metro Station, Red Light, suddenly a vehicle bearing no. HR-38K-8774, which was being driven by its driver / respondent no. 1 at a very high speed, rashly, negligently without blowing any horn in contravention of the traffic rules came from Sarai Rohilla side and going to Tri Nagar Side and jumped the Red Light and hit the RTV Mini Bus along with the sitting passengers with a great force. With this sudden and forceful impact, the RTV Mini Bus turn-turtled on the road and deceased along with the other passengers sustained grievous injuries on their bodies. The deceased along with other passengers were removed to Hindu Rao Hospital, Delhi, where the concerned doctor prepared the MLC of deceased and thereafter, removed to Dr. B. L. Kapur Memorial Hospital, Pusa Road, New Delhi, on 14.03.2013 for better medical treatment, where the deceased died of severe head injury with brain stem contusions with sepsis on 23.3.2013 and post mortem was conducted by doctor in Aruna Asaf Ali Hospital, Mortuary, Subzi Mandi, Delhi, on 24.03.2013.
In Petition no. 1 bearing no. 57075/16, the petitioners have claimed Rs. 20,00,000/- as compensation on account of fatal injuries sustained by late Harjinder Singh.
In petition no. 2 bearing no. 57358/16, Sh. S. Swaran Singh (petitioner) has claimed Rs.50,00,000/- as compensation on account of grievous injuries sustained by him.
In petition no. 3 bearing no. 56563/16, Smt. Parveen Kaur (petitioner) has claimed Rs.5,00,000/- as compensation on account of simple injuries sustained by her.
In petition no. 4 bearing no. 56573/16, Ms. Gurdeep Kaur (petitioner) has claimed Rs.60,00,000/- as compensation on account of grievous injuries sustained by her.
Consolidated New Cases bearing No. 57075/16, 57358/16, 56563/16, 56573/16, 56574/16 & 56469/16 Page No.7/40In petition no. 5 bearing no. 56574/16, Smt. Harjeet Kaur (petitioner) has claimed Rs.5,00,000/- as compensation on account of simple injuries sustained by her.
In petition no. 6 bearing no. 56469/16, Master Subhag Singh (petitioner) has claimed Rs.5,00,000/- as compensation on account of simple injuries sustained by her.
5. The written statement was filed jointly by respondents No. 1 & 2 taking many preliminary objections as regards locus standi, concealment of true and material facts and maintainability etc. In reply on merits, it is submitted by both the respondents that accident had not been caused due to the rash and negligent driving of the respondent no. 1 and both the respondents have been falsely implicated in the present case with ulterior motive to extort money from them. It is submitted that the driver of the RTV Mini Bus was driving his vehicle at a very high speed and in a rash and negligent manner and in a high speed and due to the high speed, the RTV turned turtle and due to the rash and negligent driving of the driver, the passengers received injuries and there is no fault on the part of respondent no. 1 driver. All other averments are denied and both the respondents prayed for the dismissal of the petition.
6. The written statement was filed by respondent no.3 / insurance company on 04.06.2013, wherein it was admitted that the offending vehicle was insured with it as on the date and time of accident. Another WS was also filed by the insurance company on 01.10.2013, stating therein that the driver of the offending vehicle was not having valid license and it is clear willful breach of terms and conditions of the Insurance Policy and there is no liability on the Insurance company to compensate the petitioners. It is submitted that the RTV driver was negligent and due to his negligence, this accident has occurred and Consolidated New Cases bearing No. 57075/16, 57358/16, 56563/16, 56573/16, 56574/16 & 56469/16 Page No.8/40 prayer is made for dismissal of the petition.
7. Respondent no. 4 namely Gurmeet Singh, driver of RTV also filed the WS, stating therein that the driver of truck bearing no. HR-38A- 8774 was driving the vehicle in a rash and negligent manner and in contravention of traffic rules and he jumped the red light and hit the RTV mini bus with great force from back portion as a result of which, the RTV mini bus turned turtle and the passengers sitting on the RTV received injuries.
8. From the pleadings of the parties, following consolidated issues were framed on 03.09.2013:-
1. Whether the deceased Harjinder Singh died and other petitioners suffered injuries in a road traffic accident dated 14.03.2013 due to rash and negligent driving of the offending vehicle bearing no. HR-38K-8774 driven by respondent no. 1 as alleged?
2. What amount of compensation the petitioners are entitled to and from whom?
3. Relief.
9. In order to establish their case, the petitioners in the case titled as Jaswant Singh Vs. Vijay Kumar & Ors. bearing MACT No. 357075/16 examined petitioner no. 1 Smt. Gurmeet Kaur as PW1 and has exhibited the documents viz., Ex.PW1/1 - Death certificate, death receipt and dead body receipt Ex.PW1/2 - License of M/s Jaswant Engineering issued by MCD Ex.PW1/3 - Case summary of deceased Ex.PW1/4 - Medical bills & ambulance bills (colly) Ex.PW1/5 - Cremation Receipt Ex.PW1/6 - Photocopy of Ration Card Ex.PW1/7 - Election I card of her daughter namely Kamaljeet Kaur Consolidated New Cases bearing No. 57075/16, 57358/16, 56563/16, 56573/16, 56574/16 & 56469/16 Page No.9/40 She has also examined PW7 Sh. Gaurav Singh, Medical Report Technician from B.L. Kapoor Hospital, who proved the treatment record and medical bills of deceased Harjinder Singh exhibited as Ex.PW7/1 (colly).
In order to establish his case titled as Swaran Singh Vs. Vijay Kumar & Ors. bearing MACT No. 357358/16, the wife of the injured Sh. Swaran Singh namely Smt. Charanjeet Kaur examined herself as PW4 and has exhibited the documents viz., Ex.PW4/1 - Medical treatment paper Ex.PW4/2 - Discharge summary Ex.PW4/3 - Copy of ODP Cards Ex.PW4/4 - Medical bills Ex.PW4/5 - Photograph of the injured Ex.PW4/6 - Copy of election I card Ex.PW4/7 - Copy of registration certificate of occupation of injured She has also examined Dr. Himanshu, who proved the medical record of Swaran Singh as PW8, Sh. Pawan Kumar Asst. MRD, who proved the medical bills of Swaran Singh as PW9, Dr. A. K. Mishra, who proved the permanent disability certificate of Swaran Singh as PW14 and Sh. Jyoti Basu, Physiotherapist, who proved the physiotherapy bills of the petitioner Swaran Singh as PW16.
In order to establish her case, Smt. Parveen Kaur, petitioner in the case titled as Parveen Kaur Vs. Vijay Kumar & Ors. bearing MACT No. 356563/16 examined herself as PW5, who exhibited the documents viz., Ex.PW5/1 - Copy of OPD card and prescriptions Ex.PW5/2 - Copy of Voter I card Consolidated New Cases bearing No. 57075/16, 57358/16, 56563/16, 56573/16, 56574/16 & 56469/16 Page No.10/40 In order to establish the case titled as Gurdeep Kaur Vs. Vijay Kumar & Ors. bearing MACT No. 356573/16, the father of the petitioner namely Sh. Bhupinder Singh examined himself as PW2, who exhibited the documents viz., Ex.PW2/1 - Discharge summary along with case summary Ex.PW2/2 - OPD Card Ex.PW2/3 - Copy of Medical bills Ex.PW2/4 - Photographs of injured Gurdeep Kaur Ex.PW2/5 - Voter I card and Ration Card of injured Gurdeep Kaur Ex.PW2/6 - Death certificate of deceased Gurdeep Kaur Ex.PW2/7 - Medical bills Ex.PW2/8 - OPD Cards The witnesses I.e. PW8 Dr. Himanshu and PW9 Sh. Pawan Kumar Asst. MRD (who have proved the medical and medical bills of Swaran Singh) have also proved the medical record and medical bills respectively of the petitioner Ms. Gurdeep Kaur.
In order to establish her case, Smt. Harjeet Kaur, petitioner in the case titled as Harjeet Kaur Vs. Vijay Kumar & Ors. bearing MACT No. 356574/16 examined herself as PW3, who exhibited the documents viz., Ex.PW3/1 - Treatment papers Ex.PW3/2 - Medical bills Ex.PW3/3 - Copy of Voter I card She has also examined Dr. A.K. Mishra, who proved the temporary disability certificate of the petitioner Harjeet Kaur, as PW13 and Sh. Dinesh Suman, Sr. Consultant, who proved her treatment record, as PW15.
Consolidated New Cases bearing No. 57075/16, 57358/16, 56563/16, 56573/16, 56574/16 & 56469/16 Page No.11/40In order to establish his case, Smt. Parveen Kaur, the mother of minor petitioner namely Master Subhag Singh in the case titled as Subhag Singh Vs. Vijay Kumar & Ors. bearing MACT No. 356469/16 examined herself as PW6, who exhibited the documents viz., Ex.PW6/1 - Treatment papers Ex.PW6/2 - Copy of Voter I card of mother of injured, School identity card of minor injured, birth certificate and ration card (colly) Sh. Gurmeet Singh, who was the Driver cum Registered Owner of the RTV Mini Bus bearing No. DL-1V-8358 in which the deceased in the first petition as well as other injured petitioners in the other petitions were travelling, was impleaded as the Respondent No. 4, vide order dated 22/08/2016 passed by Ld. Predecessor of this Court, examined himself as PW11.
Smt. Prakash Kaur, who was the mother of respondent no. 4 and was also travelling in the said RTV, was examined as PW10 in the present case, however she has no concern with the present petitions.
Dr. M. K. Dhar was examined as PW-12, who proved the medical treatment papers of Smt. Prakash Kaur, who has no concern with the present petitions.
10. The insurance company/Respondent No. 3 examined four witnesses Sh. Santosh Kumar as R3W1, Sh. Shri Niwash as R3W2, Si Vikram Singh as R3W3 and Sh. Naresh Kumar Bansal, A.O. as R3W4 in its defence.
11. I have thoroughly gone through the testimony of the witnesses and perused the record. I have also given thoughtful consideration to the arguments addressed by learned counsel for the parties.
Consolidated New Cases bearing No. 57075/16, 57358/16, 56563/16, 56573/16, 56574/16 & 56469/16 Page No.12/40My findings on aforementioned issues are as under :
ISSUE NO.1 IN ALL THE SIX PETITIONS
12. The present petition is under Section 166 of M V Act and as such it was the bounden duty of the petitioners to prove that the respondent No.1 was rash and negligent in driving the vehicle at the time of accident.
13. The petitioners have filed the certified copy of the criminal case documents on record i. e the copy of FIR etc. bearing No. 125/13 P.S. Sarai Rohilla u/s 279/337/304-A IPC including chargesheet etc.
14. PW-1(wife of the deceased in the first petition), PW2 (father of the injured in the Fourth petition who died during the pendency), PW-3 (Who is the petitioner in the Fifth petition), PW-4 (Who is the wife of petitioner in the Second Petition), PW-5, (Who is the petitioner in the Third petition) and PW6 (mother of the minor injured in the Sixth petition) have deposed on the same lines that on 14.03.2013 at about 3:55 AM, deceased along with other passengers were travelling in RTV Mini Bus bearing no. DL-IV-8358, which was being driven by its driver at a slow speed and on his correct side of the road with observing the traffic rules. The deceased along with other passengers were going towards their residence after attending Satsang Gurbani. When the deceased along with other passengers and RTV driver reached at Inderlok Metro Station, Red Light, suddenly a vehicle bearing no. HR-38K-8774, which was being driven by its driver / respondent no. 1 at a very high speed, rashly, negligently without blowing any horn in contravention of the traffic rules came from Sarai Rohilla side and going to Tri Nagar Side and jumped the Red Light and hit the RTV Mini Bus along with the sitting passengers with Consolidated New Cases bearing No. 57075/16, 57358/16, 56563/16, 56573/16, 56574/16 & 56469/16 Page No.13/40 a great force. With this sudden and forceful impact, the RTV Mini Bus turn-turtled on the road and deceased along with the other passengers sustained grievous injuries on their bodies. The cross-examination carried on by the Respondents is not suggestive of anything which may discard the claim of the petitioner to the effect that the driver of the offending vehicle was not rash and negligent at the time of accident.
15. It is pertinent to note that the respondent no.1/driver of aforesaid, TATA 709 TRUCK bearing No. HR-38K-8774 was the other material witness to throw light by testifying as to how and under what circumstances, the accident had taken place. However, he has preferred not to enter into the witness box during the course of inquiry. Thus, an adverse inference is liable to be drawn against him to the effect that the accident in question occurred due to rash and negligent driving of TATA 709 TRUCK bearing No. HR-38K-8774. The insurance company has not led any evidence on this aspect.
16. Not only this, the Respondent No. 1 namely Vijay Kumar (accused in the State case) has been charge sheeted for offences punishable U/s 279/337/338/304-A/468/471 IPC 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 rash and negligent driving of offending vehicle i.e. TATA 709 TRUCK bearing No. HR-38K-8774 by him. Same would also point out towards rash and negligent driving of TATA 709 TRUCK bearing No. HR-38K-8774 by respondent no.1.
17. While determining the negligence, I am being guided by the judgment of Hon'ble High Court of Delhi in 2009 ACJ 287, National Insurance Company Limited Vs. Pushpa Rana wherein in the Hon'ble Consolidated New Cases bearing No. 57075/16, 57358/16, 56563/16, 56573/16, 56574/16 & 56469/16 Page No.14/40 High Court held that in case the petitioner files the certified copy of the criminal record or the criminal record showing the completion of the investigation by the police or the issuance of charge sheet under section 279/304 A IPC or the certified copy of the FIR or in addition the recovery memo on the mechanical inspection report of the offending vehicle, these documents are sufficient proof to reach to the conclusion that the driver was negligent. It was further held that the proceedings under the Motor Vehicles Act are not akin to the proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Further, in Kaushnumma Begum and others v/s New India Assurance Company Limited, 2001 ACJ 421 SC the issue of wrongful act or omission on the part of driver of the motor vehicle involved in the accident has been left to a secondary importance and mere use or involvement of motor vehicle in causing bodily injuries or death to a human being or damage to property would maKe the petition maintainable under section 166 and 140 of the Act.
18. 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 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.
19. Further the Hon'ble High of Delhi in MAC App. No.200/2012 in case titled as United India Insurance Co. Ltd. Vd. Smt. Rinki @ Rinku & Ors decided on 23/07/2012 by the Hon'ble High Court of Delhi, held as under:-
"The Claims Tribunal was conscious of the fact that negligence is a sine qua non to a Petition under Section 166 of the Motor Vehicles Act, Consolidated New Cases bearing No. 57075/16, 57358/16, 56563/16, 56573/16, 56574/16 & 56469/16 Page No.15/40 1988(the Act). It is also true that the proceedings for grant of compensation under the Act are neither governed by the criminal procedures nor are a civil suit. A reference may be made to a judgment of the Supreme Court Bimla Devi and Ors. V Himachal Road Transport Corporation and Ors, (2009) 13 SC 530 where it was held as under:
"15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of any accident caused by a particular bus in a particular manner may not be possible to be done by the claimant. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied."
20. Therefore, after considering oral as well as documentary evidence in all the petitions, it is clear that respondent No.1 was driving the vehicle in a rash and negligent manner.
21. The issue no. 1, therefore, is decided in favour of the petitioners and against the respondents.
ISSUE NO.2 COMPENSATION IN THE FIRST PETITION (Suit No. 57075-16)
22. The petitioners have filed the medical bills to the tune of Rs.3,31,331/- which they have incurred on the treatment of the deceased before the death of the deceased. I hereby award a sum of Rs.3,31,331/- towards medical bills keeping in view the nature of injuries and medical bills placed on record.
Consolidated New Cases bearing No. 57075/16, 57358/16, 56563/16, 56573/16, 56574/16 & 56469/16 Page No.16/4023. As per the petition filed by the LRs of the deceased, the age of the deceased is 65 years. No other document of age proof has been filed. Accordingly, the petitioner was 65 years of age as on the date of accident.
24. The deceased was stated to be self employed and doing own business (Hydraulic Line) and was earning approximately Rs. 13,000/- per month from the aforementioned business, but no income proof has been filed or proved on record. In these circumstances, the income of the petitioner can very well be assessed on the basis of the chart available in the Minimum Wages Act. The date of accident was 14.03.2013 on which the Minimum Wages for UNSKILLED PERSONS were Rs. 7,254/-.
25. The Hon'ble Apex Court of the land in the latest judgment which has arisen out of SLP (Civil) No. 25590 of 2014 titled as National Insurance Company Limited vs. Pranay Sethi & ors decided on 31.10.2017 has held as under:-
"61. In view of the aforesaid analysis, we proceed to record our conclusions:-
(i) The two-Judge Bench in Santosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench.
(ii) As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent.
(iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a Consolidated New Cases bearing No. 57075/16, 57358/16, 56563/16, 56573/16, 56574/16 & 56469/16 Page No.17/40 permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.
(iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.
(v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore.
(vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment.
(vii) The age of the deceased should be the basis for applying the multiplier.
(viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/-
respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years."
26. No future prospects is given to the LRs of the deceased in the present case, as deceased was 65 years of age, in terms of the judgment of the Hon'ble Supreme Court of India titled as National Insurance company Vs. Praney Sethi & Ors. (Supra).
27. The appropriate multiplier applicable is '7' (for the age group of 61-65 years) as mentioned in Sarla Verma's judgment.
Consolidated New Cases bearing No. 57075/16, 57358/16, 56563/16, 56573/16, 56574/16 & 56469/16 Page No.18/4028. It can very well be presumed in terms of the judgment of the Hon'ble Supreme Court of India in Sarla Verma Vs. DTC decided on 15.4.2009 in C.A. No. 3483/08 that the deceased might have been spending one-half of Rs. 7254/- on his personal expenses as he had left behind only one dependent i.e. his wife / Petitioner No. 1. The Petitioners No. 2, 3 and 4 are not considered dependent upon the deceased, as one daughter is major and married & two sons are major, married and working. Therefore, after deducting one-half towards personal expenses, the loss of dependency per month comes out to be Rs. 7254/- less Rs. 3627/- = Rs. 3627/-.The appropriate multiplier applicable is 18, as mentioned in Sarla Verma's judgment (Supra). The total loss of dependency comes out to Rs. 3,04,668/- (Rs. 3627 x 12 x 7).
29. The Hon'ble Supreme Court of India in, "National Insurance Company Ltd. vs. Praney Sethi & Ors. in Special Leave Petition (Civil) No.25590 of 2014 has granted a sum of Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- on account of loss of estate, loss of consortium and funeral expenses respectively. The aforesaid amounts are to be enhanced at the rate of 10% in every three years.
30. In view of the abovesaid judgment age, I hereby award Rs.15,000/- towards loss of estate; Rs.40,000/- towards loss of consortium and Rs.15,000/- towards funeral charges.
31. Therefore, in total, I hereby award a sum of Rs.7,05,999/ (Rupees Seven Lac Five Thousand Nine Hundred Ninety Nine Only) (Rs. 3,31,331/- + Rs. 3,04.668/- + Rs. 70,000/- ) in favour of the petitioners and against the respondents.
Consolidated New Cases bearing No. 57075/16, 57358/16, 56563/16, 56573/16, 56574/16 & 56469/16 Page No.19/40ISSUE NO.3:R E L I EF
32. I award Rs.7,05,999/ (Rupees Seven Lac Five Thousand Nine Hundred Ninety Nine Only) as compensation with interest at the rate of 9% per annum including interim award, if any from the date of filing the DAR I.e. 20.05.2013 till realization. The Petitioner No. 1 shall have 70% in the award amount, where as Petitioners No. 2, 3 & 4 shall have 10% each share in the award amount.
33. As per the guidelines issued by Hon'ble Supreme Court of India G.M Kerala State Road Transport Corporation v/s S.Susamma Thomas (1994) 2 SCC 176 and in terms of the judgment of Hon'ble High Court of Delhi in FAO 842/2003 @ CM Applns. No. 32859/2017, 41125-41127/2017 titled as Rajesh Tyagi & Ors. Vs. Jasbir Singh & Ors. Dated 01.05.2018, in order to avoid the money being frittered away, Ninety percent (90%) of the amount awarded to aforementioned petitioner no. 1 shall be kept in 5 FDRs of almost equal amount for a period of 1,2,3,4 & 5 years. No loan or advance shall be allowed against the said fixed deposit. Petitioner can withdraw the interest monthly from the said FDRs. 10% of the award amount alongwith entire interest be transferred in the Savings Bank Account of the petitioner upon furnishing her identification documents and necessary account details. The entire share of the petitioners no. 2, 3 and 4 along with the entire interest be transferred in their savings account upon providing their necessary bank details.
Consolidated New Cases bearing No. 57075/16, 57358/16, 56563/16, 56573/16, 56574/16 & 56469/16 Page No.20/40COMPENSATION IN THE SECOND PETITION (Suit No. 57358-16) NATURE OF INJURIES AND REIMBURSEMENT OF MEDICAL BILLS & PHYSIOTHERAPY BILLS
34. As per copy of discharge summary, the petitioner has suffered post traumatic C4-C5 acute disc prolapse with quadriparasis AIS-C neurology (Extension distraction injury) with traumatic amputated left index finger. The petitioner has filed the medical bills to the tune of Rs.12,46,749/- (including Rs. 1,39,500/- towards physiotherapy bills) Therefore, I hereby award a sum of Rs.12,46,749//- towards medical and physiotherapy bills, keeping in view the nature of injuries and medical bills and physiotherapy bills placed on record.
PAIN AND SUFFERINGS :
35. It is settled law that a particular amount can not be fixed for pain and sufferings in all the cases and it varies from case to case. Judicial notice can be taken to the fact that since the petitioner had got injuries as aforesaid, he might have suffered acute pain and sufferings owing to the said injuries. He might have taken heavy dose of anti-biotic etc. and also might have remained without movements of his body for a considerable period of time. In order to ascertain the pain and sufferings compensation, I am guided by the judgement of Hon'ble High Court of Delhi in case Satya Narain v/s Jai Kishan , FAO No: 709/02, date of decision: 2.2.2007, Delhi High Court by Hon'ble Mr. Justice Pradeep Nandrajog 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, Consolidated New Cases bearing No. 57075/16, 57358/16, 56563/16, 56573/16, 56574/16 & 56469/16 Page No.21/40 compensation which has to be paid must bear some objectives co-relation with the pain and suffering.
The objective facts relatable to pain and suffering would be:
(a) Nature of injury.
(b) Body part affected.
(c) Duration of the treatment."
36. Keeping in view the said guidelines, nature of injuries and duration of treatment, I hereby grant Rs. 75,000/- towards pain and sufferings. I hereby award a sum of Rs. 50,000/- towards special diet and conveyance.
LOSS OF INCOME DURING TREATMENT PERIOD
37. The petitioner was stated to be self employed and was stated to be earning Rs. 12,000/- per month, but no income proof has been filed or proved on record. Keeping in view the nature of injuries, duration of treatment as per medical record, it appears to me that petitioner could not have worked for about six months. In these circumstances, the income of the petitioner can very well be assessed on the basis of the chart available in the Minimum Wages Act. The date of accident was 14/03/2013 on which the Minimum Wages for Unskilled were Rs. 7254/-. Accordingly, I award Rs.43,524/- (Rs. 7,254 X 6) towards loss of income.
38. COMPENSATION ON ACCOUNT OF DISABILITY:
PW-14 Dr. A.K.Mishra, has proved the disability certificate, Ex.PW14/A. As per the disability certificate letter Ex.PW14/A, the petitioner has got 70% permanent disability with relation to all four limbs.
39. It is settled law that it is the percentage of functional disability Consolidated New Cases bearing No. 57075/16, 57358/16, 56563/16, 56573/16, 56574/16 & 56469/16 Page No.22/40 arising out of physical disability which matters while assessing the compensation arising out of disability. On this aspect, I gain support from judgment of Hon'ble Supreme Court in Raj Kumar Vs. Ajay Kumar & Ors, reported as 2011 ACJ I in which it was held as under:-
"11. What requires to be assessed by the Tribunal is the effect of the permanently disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terns of money, to arrive at the future loss of earnings(by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation ( see for example, the decisions of this Court in Arvind Kumar Mishra v New India Assurance Co. Ltd. 2010(10) SCC 254 and Yadava Kumar v D. M. National Insurance Co. Ltd. 2010(10) SCC 341."
13. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent ability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or
(ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities Consolidated New Cases bearing No. 57075/16, 57358/16, 56563/16, 56573/16, 56574/16 & 56469/16 Page No.23/40 and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood.
14. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry . On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of loss of future earnings', if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emolument, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity."
40. After going through the testimony of PW-14 and keeping in view the profession of the petitioner, I am of the opinion that permanent disability of 70% in relation to all four limbs shall effect entirely upon his working capacity, but petitioner can suffer around 70% towards his earning capacity keeping in view that at the time of accident, the petitioner was self employed doing his own business at the time of accident.
Consolidated New Cases bearing No. 57075/16, 57358/16, 56563/16, 56573/16, 56574/16 & 56469/16 Page No.24/4041. As per the copy of Adhar Card of the petitioner, the date of birth of the petitioner is 10/06/1949. The date of accident was 14/03/2013. Accordingly, the petitioner was 64 years of age on the date of accident.
42. No future prospects is given to the petitioner in the present case, as he is more than 60 years of age, in terms of the judgment of the Hon'ble Supreme Court of India titled as National Insurance company Vs. Praney Sethi & Ors. (Supra).
43. Accordingly, the petitioner was 64 years of age as on the date of accident for which the relevant multiplier 7 as mentioned in Sarla Verma Vs. DTC decided on 15.4.2009 in C.A. No. 3483/08 is applicable. Therefore, the total loss of earning capacity comes out to be Rs. 4,26,535.2p (Rs.7254/-X 12 X 7 x 70/100). The same is rounded of to Rs. 4,26,536/-.
LOSS OF GENERAL AMENITIES & ENJOYMENT OF LIFE
44. 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. 50,000/- as compensation towards loss of amenities of life and enjoyment of life (Reliance placed on "IFFCO TOKIO GENERAL INSURANCE COMPANY LTD VS. ARJUN & ORS., MAC APP. NO. 01/2013, DECIDED ON 04.01.2018 BY HON'BLE HIGH COURT OF DELHI).
Consolidated New Cases bearing No. 57075/16, 57358/16, 56563/16, 56573/16, 56574/16 & 56469/16 Page No.25/40The total compensation is assessed as under:-
Treatment expenses &Physiotherapy Bills Rs. 12,46,749/-
Pain and sufferings: Rs. 75,000/-
Conveyance & special diet: Rs. 50,000/-
Loss of income during Rs. 43,524/-
treatment period
Compensation on account of
disability: Rs. 4,26,536/-
Compensation on account of
loss of amenities of life and
enjoyment of life Rs. 50,000/-
Total: Rs. 18,91,809/-
45. RELIEF:
I award Rs. 18,91,809/- (Rupees Eighteen Lacs Ninety One Thousand Eight Hundred Nine Only) as compensation with interest at the rate of 9% per annum including interim award, if any from the date of filing the DAR i.e. 20/05/2013 till realization.
46. As per the guidelines issued by Hon'ble Supreme Court of India G.M Kerala State Road Transport Corporation v/s S.Susamma Thomas (1994) 2 SCC 176 and in terms of the judgment of Hon'ble High Court of Delhi in FAO 842/2003 @ CM Applns. No. 32859/2017, 41125-41127/2017 titled as Rajesh Tyagi & Ors. Vs. Jasbir Singh & Ors. Dated 01.05.2018, in order to avoid the money being frittered away, Ninety percent (90%) of the amount awarded to aforementioned petitioner shall be kept in 5 FDRs of almost equal amount for a period of 1,2,3,4 & 5 years. No loan or advance shall be allowed against the said fixed deposit. Petitioner can withdraw the interest monthly from the said FDRs. 10% of the award amount alongwith entire interest be transferred in the Savings Bank Account of the petitioner upon furnishing his identification documents and necessary account details.Consolidated New Cases bearing No. 57075/16, 57358/16, 56563/16, 56573/16, 56574/16 & 56469/16 Page No.26/40
COMPENSATION IN THE THIRD PETITION (Suit No. 56563/16) NATURE OF INJURIES AND REIMBURSEMENT OF MEDICAL BILLS:
47. As per copy of MLC, the petitioner has suffered simple injuries.
No bills have been filed by the petitioner. It is common knowledge that generally people during the treatment do not maintain the bills etc as they are not aware of this benevolent legislation having provisions for compensation. Keeping in view the overall circumstances, I hereby grant sum of Rs.3,000/-towards medical expenses including the amount of bills filed.
PAIN AND SUFFERINGS :
48. Keeping in view the aforesaid said guidelines and keeping in view the aforesaid observation made by this court, I hereby allow Rs.5,000/- towards pain and sufferings and loss of amenities of life.
Besides this, I hereby award a sum of Rs. 3,000/- towards special diet and conveyance.
LOSS OF GRATUTIOUS SERVICES & INCOME DURING TREATMENT PERIOD
49. The petitioner in the third petition is stated to be a housewife and was doing Sewing and Stitching Job and was stated to be earning Rs. 10,000/- per month but no income proof has been filed or proved on record. Keeping in view the nature of injuries and as per medical record, it appears to me that petitioner could not have not provided gratuitous services to her family or worked for about 15 days. In these circumstances, the income of the petitioner can very well be assessed on Consolidated New Cases bearing No. 57075/16, 57358/16, 56563/16, 56573/16, 56574/16 & 56469/16 Page No.27/40 the basis of the chart available in the Minimum Wages Act. The date of accident was 15 days on which the minimum wages for Unskilled Persons were Rs.7,254/-. Accordingly, I award Rs.3627- (Rs. 7,254 X ½ ) towards loss of income/gratuitous services.
The total compensation is assessed as under:-
Treatment expenses: Rs. 3,000/-
Pain and sufferings: Rs. 5,000/-
Special diet and
conveyance : Rs. 3,000/-
Compensation on account
of loss of gratuitous services/
income Rs. 3627/-
_____ ____________
Total: Rs. 14,627/--
RELIEF:
50. I award Rs.14,627/- (Rupees Fourteen Thousand Six
Hundred Twenty Seven Only) as compensation with interest at the rate of 9% per annum including interim award, if any from the date of filing the petition i.e. 20/05/2013 (DAR) till realization.
The entire award amount alongwith interest be transferred in the saving account of the petitioner upon providing necessary details and identification.
COMPENSATION IN THE FOURTH PETITION (Suit No. 56573/16) NATURE OF INJURIES AND REIMBURSEMENT OF MEDICAL BILLS:
51. Perusal of file transpires that the petitioner namely Smt. Gurdeep Kaur in the fourth petition died during the trial.
52. As per discharge summary of the petitioner in the fourth petition Consolidated New Cases bearing No. 57075/16, 57358/16, 56563/16, 56573/16, 56574/16 & 56469/16 Page No.28/40 Ex PW2/1 (Colly), she has suffered flexion distraction (operated case of C6-7) injury with D3 compression fracture with quadriplegia (AIS-A neurology) with right displaced clavicle fracture with head injury. The petitioner has filed the medical bills to the tune of Rs. 12,44,346/-.
Therefore, I hereby award a sum of Rs. 12,44,346/- towards medical bills keeping in view the nature of injuries and medical bills placed on record. income.
The total compensation is assessed as under:-
Treatment expenses: Rs. 12,44,346/-
____________
Total: Rs. 12,44,346/-
RELIEF:
53. I award Rs. 12,44,346/- (Rupees Twelve Lacs Forty Four Thousand Three Hundred Six Only) as compensation with interest at the rate of 9% per annum including interim award, if any from the date of filing the petition I.e. 20/05/2013 (DAR) till realization.
54. Since the petitioner in the present petition namely Ms. Gurdeep Kaur had died during the trial, her share of compensation amount be given to her LRs namely Sh. Bhupinder Singh Alag (father of the deceased) and Smt. Harjeet Kaur (mother of the deceased) equally.
55. As per the guidelines issued by Hon'ble Supreme Court of India G.M Kerala State Road Transport Corporation v/s S.Susamma Thomas (1994) 2 SCC 176 and in terms of the judgment of Hon'ble High Court of Delhi in FAO 842/2003 @ CM Applns. No. 32859/2017, 41125-41127/2017 titled as Rajesh Tyagi & Ors. Vs. Jasbir Singh & Ors. Dated 01.05.2018, in order to avoid the money being frittered Consolidated New Cases bearing No. 57075/16, 57358/16, 56563/16, 56573/16, 56574/16 & 56469/16 Page No.29/40 away, Ninety percent (90%) of the amount awarded to aforementioned petitioners / LRs no. 1 & 2 shall be kept in 5 FDRs of almost equal amount for a period of 1,2,3,4 & 5 years. No loan or advance shall be allowed against the said fixed deposit. Petitioner can withdraw the interest monthly from the said FDRs. 10% of the award amount alongwith interest be transferred in the Savings Bank Account of the petitioners upon furnishing their identification documents and necessary account details.
COMPENSATION IN THE FIFTH PETITION (Suit No. 56574/16) NATURE OF INJURIES AND REIMBURSEMENT OF MEDICAL BILLS:
56. As per copy of MLC, the petitioner has suffered simple injuries. The petitioner has filed the medical bills to the tune of Rs. 3,230/- Therefore, I hereby award a sum of Rs. 3,230/- towards medical bills keeping in view the nature of injuries and medical bills placed on record.
PAIN AND SUFFERINGS :
57. Keeping in view the aforesaid said guidelines and keeping in view the aforesaid observation made by this court, I hereby allow Rs. 5,000/- towards pain and sufferings and loss of amenities of life. Besides this, I hereby award a sum of Rs. 3,000/- towards special diet and conveyance.
LOSS OF GRATUTIOUS SERVICES & INCOME DURING TREATMENT PERIOD
58. The petitioner in the fifth petition is stated to be housewife and was doing Sewing and Stitching Job and was stated to be earning Rs.10,000/- but no income proof has been filed or proved on record.
Consolidated New Cases bearing No. 57075/16, 57358/16, 56563/16, 56573/16, 56574/16 & 56469/16 Page No.30/40Keeping in view the nature of injuries and as per medical record, it appears to me that petitioner could not have provided gratuitous service to her family or worked for about 15 days. In these circumstances, the income of the petitioner can very well be assessed on the basis of the chart available in the Minimum Wages Act. The date of accident was 14/03/2013 on which the minimum wages for Unskilled Persons were Rs.7,254/-. Accordingly, I award Rs. 3627- (Rs. 7,254 X 1/2) towards gratuitous services/loss of income.
The total compensation is assessed as under:-
Treatment expenses: Rs. 3,230/-
Pain and sufferings: Rs. 5,000/-
Special diet and
conveyance : Rs. 3,000/-
Compensation on account
of loss of gratuitous services/income Rs. 3,627-
_____ ____________
Total: Rs. 14,857/-
RELIEF:
59. I award Rs.14,857 (Rupees Fourteen Thousand Eight
Hundred Fifty Seven Only) as compensation with interest at the rate of 9% per annum including interim award, if any from the date of filing the petition I.e. 20/05/2013 (DAR) till realization.
The entire award amount alongwith interest be transferred in the saving account of the petitioner upon necessary identification.
COMPENSATION IN THE SIXTH PETITION (Suit No. 56469/16) NATURE OF INJURIES AND REIMBURSEMENT OF MEDICAL BILLS:
60. The medical records in the sixth petition suggests that petitioner had sustained simple injuries. No bills have been filed by the petitioner. It is common knowledge that generally people during the treatment do not Consolidated New Cases bearing No. 57075/16, 57358/16, 56563/16, 56573/16, 56574/16 & 56469/16 Page No.31/40 maintain the bills etc as they are not aware of this benevolent legislation having provisions for compensation. Keeping in view the overall circumstances, I hereby grant sum of Rs.3,000/- towards medical expenses including the amount of bills filed.
PAIN AND SUFFERINGS :
61. Keeping in view the aforesaid said guidelines and keeping in view the aforesaid observation made by this court, I hereby allow Rs.10,000/- towards pain and sufferings and loss of amenities of life.
Besides this, I hereby award a sum of Rs. 3,000/- towards special diet and conveyance.
LOSS OF ENJOYMENT OF LIFE, PLAY AND STUDIES DURING TREATMENT PERIOD
62. The minor petitioner was stated to be a student at the time of accident. Therefore, I award a lump sum amount of Rs. 10,000/ towards loss of enjoyment of life, play and studies.
The total compensation is assessed as under:-
Treatment expenses: Rs. 3,000/-
Pain and sufferings: Rs. 10,000/-
Special diet and
conveyance : Rs. 3,000/-
Compensation on account
of loss of enjoyment of life,
play & studies Rs. 10,000/-
____________
Total: Rs. 26,000/-
RELIEF:
63. I award Rs. 26,000/- (Rupees Twenty Six Thousand Only) as compensation with interest at the rate of 9% per annum including interim award, if any from the date of filing the petition i.e. 20/05/2013 Consolidated New Cases bearing No. 57075/16, 57358/16, 56563/16, 56573/16, 56574/16 & 56469/16 Page No.32/40 (DAR) till realization.
The entire award amount alongwith interest be transferred in the saving account of the petitioner upon necessary identification.
APPORTIONMENT OF LIABILITY:
64. The Respondent No. 4 is the Driver cum Owner of the RTV bearing No. DL-IV-8358 (RTV Mini Bus) in which the deceased in the first petition as well as petitioners in the other petitioners were travelling was impleaded as necessary party vide order dated 22.08.2016 passed by my Ld. Predecessor but after perusal of chargesheet and criminal record, it is clear that he was not at fault while driving his TSR so he is absolved from liability to make any compensation to the petitioners.
65. I have taken the note of the submissions of the Ld. Counsel for insurer for contributory negligence of driver of RTV bearing No. DL-IV- 8358 (RTV Mini Bus) as well as recovery rights for the breach of the terms and condition of the policy.
66. So far as the plea of the Insurance company with respect to contributory negligence of driver of RTV bearing No. DL-IV-8358 (RTV Mini Bus) is concerned, same has not been considered as neither any cogent evidence has been led by the Insurance company in this regard to prove the same nor the charge-sheet so filed by the concerned Investigation Agency reflects the same. Hence, the plea of the Insurance company of contributory negligence is hereby rejected.
67. So far as the second plea of recovery right of Insurance company is concerned, during the course of arguments, Ld. Counsel for the insurance company vehemently argued that the offending vehicle Consolidated New Cases bearing No. 57075/16, 57358/16, 56563/16, 56573/16, 56574/16 & 56469/16 Page No.33/40 was being used by the respondent no. 1 without having a valid and effective license and hence, the insurance company is not liable to pay the compensation to the petitioner. It is further submitted by Insurance Company that because of the reason that the owner of the offending vehicle has committed breach of the terms and conditions of the policy (as the driver of the offending vehicle was driving the vehicle for which he was not authorized to drive, the insurance company be absolved of the liability.
68. In order to substantiate its claim, the insurance company examined four witnesses Sh. Santosh Kumar as R3W1, Sh. Shriniwash as R3W2, SI Vikram Singh as R3W3 and Sh. Naresh Kumar Bansal as R3W4.
R3W1-Sh. Santosh Kumar, UDC from State Transport Authority, Rajpur Road, Delhi, has proved on record the permit history report of the vehicle bearing No. DL-1V-8358 vide exhibited as Ex R3W1/1. He deposed that the permit was valid w.e.f 25/06/2012 to 19/06/2013 and again it was reissued and same was valid w.e.f. 28/06/2013 to 19/06/2014.
R3W2-Sh.Shriniwash, Assistant, District Transport Office, Chapra, Saran Bihar appeared and produced the DL record. He stated that DL bearing No. 9625/11 was not issued by their authority. As per the record produced by the Transport Office and verification by the IO, the DL of the driver/respondent no. 1 is fake. Respondent No. 1 also made a statement to the IO that he obtained his DL from one 'Dalal' namely Ram Avadh and he paid him Rs. 5,000/ at that time and it is clear that DL was Consolidated New Cases bearing No. 57075/16, 57358/16, 56563/16, 56573/16, 56574/16 & 56469/16 Page No.34/40 not obtained through proper channel and by following the norms fixed by the transport department. R3W2 exhibited two documents I.e Ex R3W2/1 and R3W2/2 in this regard.
R3W3-SI Vikram Singh has deposed that he was the second IO of the FIR No. 125/13 PS Sarai Rohilla and the DAR was filed by him. He stated that he also got the DL Mark A verified by deputing HC Jitender Singh from the concerned authority and HC Jitender Singh moved an application before RTO Chapra for DL which is already exhibited as Ex R3W2/2 and endorsement for the same is at point A. He further deposed that according to DL verification report, the said DL was fake and the offending vehicle was duly insured on the date of accident.
R3W4 -Sh. Naresh Kumar Bansal, Administrative Officer, National Insurance Company Ltd has proved the insurance policy which is exhibited as Ex R3W4/1, the notice u/o 12 Rule 8 CPC alongwith postal receipts which are exhibited as Ex R3W4/2 and Ex R3W4/3 respectively. He also relied upon the document already Ex R3W2/2, so proved by the witness R3W2. He further deposed that the Respondent No.1/driver was not having a valid DL at the time of accident and the owner of the vehicle intentionally handed over the vehicle to the person who was having a fake DL and insurance company is not liable to pay.
In view of the aforesaid discussion, I am of the considered opinion that the Respondent No.1/Driver was not having a valid and effective DL as on the date of accident which took place on 23.03.2013.
69. In order to decide the defence raised by the Ld. Counsel for insurer, I am being guided by the judgment of Hon'ble High Court in Consolidated New Cases bearing No. 57075/16, 57358/16, 56563/16, 56573/16, 56574/16 & 56469/16 Page No.35/40 MAC. App. 476/2011 in case title as ' National Insurance Company Ltd vs. Sarita Hasija & Ors' decided by Hon'ble Justice G. P. Mittal wherein Hon'ble High Court have relied upon its own judgment in case titled as 'New India Assurance Company Ltd. v. Sanjay Kumar & Ors', ILR(2007) 11, Delhi 733 wherein it was held as under:-
"23. Where the assured chooses to run away from the battle i.e fails to defend the allegation of having breach the terms of the insurance policy by opting not to defend the proceedings, a presumption could be drawn that he has done so because of the fact that he has no case to defend. It is trite that a party in possession of best evidence, if he withholds the same, an adverse inference can be drawn against him that had the evidence been produced, the same would have been against said person. As knowledge is personal to the person possessed of the knowledge, his absence at he trial would entitle the insurance company to a presumption against the owner.
24. That apart, what more can the insurance company do other than to serve a notice under Order 12 Rule 8 of the Code of Civil Procedure calling upon the owner as well as the driver to produce a valid driving license. If during trial such a notice is served and proved to be served, non response by the owner and the driver would fortify the case of the insurance company."
70. In view of the aforesaid judgment of Hon'ble High Court of Delhi and in view of the fact that the insurer have duly proved the notice u/s 12 R 8 CPC, this court has come to the conclusion that the insurance company is entitled to recovery rights against Respondent nos. 1 and 2 but only after the disbursement of claim to the claimant in terms of the judgment of the Hon'ble Supreme Court in Swaran Singh's case, 2004 ACJ 1 (SC) (Supra).
71. The Respondent No: 3 being the insurer, its liability is joint and several with other respondents. Accordingly, the respondent No. 3 is directed to deposit the award amount within a Consolidated New Cases bearing No. 57075/16, 57358/16, 56563/16, 56573/16, 56574/16 & 56469/16 Page No.36/40 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.
72. The Hon'ble High Court of Delhi in its judgment in Union of India and Another Vs. Nanisari and Others MACA 682/2005 decided on 13.1.2010 as well as in MAC. APP No. 422/2009 titled as Sobat Singh Vs. Ramesh Chandra Gupta & Anr. & FAO 842/2003 & CM32859/2017, 41125-41127/2017 titled as Raesh Tyagi & Ors. Vs. Jaibir Singh & Ors. Dated 15/12/2017 has given certain guidelines and directions to the Motor Accident Tribunals to the effect that henceforth the Tribunals shall direct the insurance companies to deposit the award amount in the bank within 30 days with further direction as to the disbursement of the same in terms of the award and case be kept pending till the compliance is placed on record. The directions given by Hon'ble High Court of Delhi as mentioned and endorsed in the said order has already been re affirmed by Hon'ble Supreme Court of India in order dated 17.12.2009 in SLP (C) No. 11801-11804/2005 which contains certain schemes initiated for the benefit of the victims of the road accidents after the award amount is passed. The para no.18 of the judgment of the Hon'ble High court of Delhi runs as under:-
"19. To protect and preserve the compensation amount awarded to the families of the deceased victim special schemes may be considered by the insurance companies in consultation with the Life Insurance Corporation of India, State Bank of India or any other Nationalized Banks under which the compensation is kept in fixed deposit for an appropriate period and interest is paid by the Bank monthly to the claimants without any need for claimants having to approach either the Court or their counsel or the Bank for that purpose. The scheme should ensure that the amount of Consolidated New Cases bearing No. 57075/16, 57358/16, 56563/16, 56573/16, 56574/16 & 56469/16 Page No.37/40 compensation is utilized only for the benefit of the injured claimants or in case of death, for the benefit of the dependent family. We extract below the particulars of a special Scheme offered by a nationalized Bank at the instance of the Delhi High Court:
(i) The fixed deposit shall be automatically renewed till the period prescribed by the Court.
(ii) The interest on the fixed deposit shall be paid monthly.
(iii) The monthly interest shall be credited automatically in the saving account of the claimant.
(iv) Original fixed deposit receipt shall be retained by the Bank in safe custody .However, the original pass book shall be given to the claimant alongwith the photocopy of the FDR.
(v) The original fixed deposit receipt shall be handed over to the claimant at the end of the fixed deposit period.
(vi) Photo identity card shall be issued to the claimant and the withdrawal shall be permitted only after due verification by the Bank of the identity card of the claimant.
(vii) No cheque book shall be issued to the claimant without permission of the Court.
(viii) No loan, advance or withdrawal shall be allowed on the fixed deposit without permission of the Court.
(ix) The claimant can operated the saving bank account from the nearest branch of UCO Bank on the request of the claimant, the bank shall provide the said facility."
It was further held in the judgment passed by Hon'ble High Court of Delhi in Nanisiri case (Supra) that "The State Bank of India and UCO Bank have formulated special schemes for the victims of the road accident on the above terms and, therefore, the order for the deposit should be made presently to State Bank of India through its Nodal Consolidated New Cases bearing No. 57075/16, 57358/16, 56563/16, 56573/16, 56574/16 & 56469/16 Page No.38/40 Officer, Relationship Manager, Tis Hazari Branch, Tis Hazari or to UCO Bank through Mr. M M Tandon, Member-Retail Team, UCO Bank Zonal, Parliament Street, New Delhi as per the convenience of the victim /legal representatives of the victim. However, if any other bank agrees to provide the special scheme for victims of the road accident on the above terms, the deposit be permitted to be made in that Bank subject to the convenience of the victim/legal representative of the victim of the road accident".
73. In terms of the order of the Hon'ble High Court of Delhi the insurance company shall deposit the award amount in the State Bank of India, Tis Hazari Court Complex Branch, Delhi in the name of the petitioner/ 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. of the case, 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 the attested copy of the award attested by its own officer to the bank at the time of deposit of the amount with the bank.
74. The copy of this award be given to the insurance company as well as to the petitioner free of cost. The petitioner shall approach the State Bank of India, Tis Hazari Court Complex Branch, Delhi for opening the account.
75. The Manager of the Bank is directed to comply the award. The Bank Manager is directed to release the award amount to the petitioners. However, in case the amount is ordered to be kept in the FDR, the said amount should not be released unless the FDR is matured.
Consolidated New Cases bearing No. 57075/16, 57358/16, 56563/16, 56573/16, 56574/16 & 56469/16 Page No.39/4076. A copy of this award be given to the insurance company as well as to the petitioner free of cost.
A copy of this award be sent to the concerned Ld. Metropolitan Magistrate as well as DSLSA as per the provisions of the MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE (MCTAP).
File be consigned to Record Room.
A separate file be prepared for compliance report by the Nazir and put up the same on 18.02.2019.
Digitally signedRAKESH by RAKESH KUMAR KUMAR Date: 2019.01.22 15:32:52 +0530 Announced in the open court ( RAKESH KUMAR-III) On this 18th January, 2019 Judge, MACT (CENTRAL-02) Delhi/18.01.2019 Consolidated New Cases bearing No. 57075/16, 57358/16, 56563/16, 56573/16, 56574/16 & 56469/16 Page No.40/40 Suit No. 57075-16(Copy be also placed in Suit Nos. 57358/16, 56563/16, 56574/16, 56573/16 & 56469/16) 18/01/2019 Present: Ld. Counsel for the parties. Arguments heard. Put up for judgment at 04.00 P.M. (RAKESH KUMAR-III ) PO: MACT-02(CENTRAL) : DELHI/18.01.2019 Again at 04.00 P.M Present: None.
Consolidated Judgment in Suits Nos. 57075/16, 57358/16, 56563/16, 56574/16, 56573/16 & 56469/16) is announced vide separate sheets of even date.
A copy of this consolidated award be sent to the concerned Ld. Metropolitan Magistrate as well as DSLSA as per the provisions of the MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE (MCTAP).
The petitioners are further directed to open a bank account, if not opened earlier, near his place of residence and to file the photocopy of his passbook, with due endorsement on the passbook that no cheque book or debit card is issued and file the copy of the same with the Nazir of this court.
File be consigned to Record Room.
A separate file be prepared for compliance report by the Nazir and put up the same on 18..02.2019.
(RAKESH KUMAR-III )
PO: MACT-02(CENTRAL)
: DELHI/18.01.2019
Consolidated New Cases bearing No. 57075/16, 57358/16, 56563/16, 56573/16, 56574/16 & 56469/16 Page No.41/40