Delhi District Court
Ranjeet & Santosh Kumar & vs Satish Kumar & Ors. Page 1 Of 25 on 6 October, 2022
MACP Nos. 968/17 & 969/17; FIR No. 340/17; PS. Alipur DOD: 06.10.2022
IN THE COURT OF SHRI VINOD YADAV,
PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNAL,
NORTH DISTRICT, ROHINI COURTS, DELHI
MAC Petition No. 968/17
UID/CNR No. DLNT010125832017
Sh. Ranjeet,
S/o Sh. Ram Avtar,
R/o Village Balbhadrapur,
PS. Safai,
District Etwa,
UP.
(Injured)
VERSUS
1. Sh. Satish Kumar,
S/o Sh. Prem Shankar,
R/o H.No. 46,
Village Shahpur Garhi,
Delhi.
(Driver)
2. Sh. Bhim Singh,
S/o Sh. Ishwar Singh,
R/o H.No. 46,
Karnal Depot,
District Karnal,
Haryana.
(Registered owner)
3. The Oriental Insurance Co. Ltd.
DO Paschim Vihar,
Delhi.
(Insurer)
........Respondents
Ranjeet & Santosh Kumar & Vs.Satish Kumar & Ors. Page 1 of 25
MACP Nos. 968/17 & 969/17; FIR No. 340/17; PS. Alipur DOD: 06.10.2022
AND
MAC Petition No. 969/17
UID/CNR No. DLNT010125842017
Sh. Santosh Kumar,
S/o Sh. Maharaj Singh,
R/o Flat No. 202, Pocket 3,
Janta Flat, Sector B4,
Narela,
Delhi.
(Injured)
VERSUS
1. Sh. Satish Kumar,
S/o Sh. Prem Shankar,
R/o H.No. 46,
Village Shahpur Garhi,
Delhi.
(Driver)
2. Sh. Bhim Singh,
S/o Sh. Ishwar Singh,
R/o H.No. 46,
Karnal Depot,
District Karnal,
Haryana.
(Registered owner)
3. The Oriental Insurance Co. Ltd.
DO Paschim Vihar,
Delhi.
(Insurer) ........Respondents
Date of Institution : 22.11.2017
Date of Arguments : 06.10.2022
Date of Award : 06.10.2022
Ranjeet & Santosh Kumar & Vs.Satish Kumar & Ors. Page 2 of 25
MACP Nos. 968/17 & 969/17; FIR No. 340/17; PS. Alipur DOD: 06.10.2022
APPEARENCES
Sh. U.C. Rai, Ld. Counsel for petitioner(s).
None for driver and owner (already exparte vide order dated
03.12.2019)
Ms. Neeru Garg, Ld. Counsel for insurance co.
Petition under Section 166 and 140 of M.V. Act, 1988
for grant of compensation
AWARD:
1. Vide this common order, I shall dispose of both Detailed
Accident Reports (DAR) with regard to grievous injuries sustained by
Sh. Ranjeet (injured in MACP No. 968/17) and Sh. Santosh Kumar(injured
in MACP No. 969/17) in Motor Vehicular Accident which occurred on
22.08.2017 at about 00:30 hrs at road 100m ahead of Shani Mandir Chowk,
Alipur, Delhi, involving Tempo bearing registration no. DL1LP6806
(offending vehicle) being driven in a rash and negligent manner by its
driver(Respondent no. 1).
2. Both the DARs were consolidated for the purpose of recording
of respondent's evidence vide order dated 03.12.2019, passed by my
Ld. Predecessor and MACP No. 968/17 titled as " Ranjeet Vs. Satish
Kumar & Ors" was treated as the leading case.
FACTS OF THE CASES
3. According to DAR, on 22.08.2017 Sh. Ranjeet and Sh. Santosh, both the injured were travelling in the offending vehicle as Ranjeet & Santosh Kumar & Vs.Satish Kumar & Ors. Page 3 of 25 MACP Nos. 968/17 & 969/17; FIR No. 340/17; PS. Alipur DOD: 06.10.2022 labourer and were sitting in the cabin alongwith driver(respondent no.1). At about 12:30 AM, when the offending vehicle reached at road 100m ahead of Shani Mandir Chowk, Alipur, Delhi, respondent no. 1 hit his vehicle against a stationary truck with a great force. It is claimed in the DAR that the offending vehicle was being driven by respondent no. 1 at a high speed, in a rash and negligent manner at the time of accident. Due to the impact, both the injured who were sitting in the cabin sustained grievous injuries. They were removed to SRHC Hospital, Narela, Delhi. FIR No. 340/17 u/s. 279/337 IPC was registered at PS. Alipur with regard to the said accident. It is claimed that offending vehicle was owned by respondent no. 2 and insured with The Oriental Insurance Co Ltd./respondent no. 3 during the period in question.
4. The respondent no. 1 & 2 i.e. driver and registered owner failed to file their WS despite grant of sufficient time and opportunity in both the DARs. Consequently, their defence was struck off vide order dated 23.05.2019. They also stopped appearing before this Tribunal and accordingly, were proceeded exparte vide order dated 03.12.2019 passed by my Ld. Predecessor in both the cases.
5. In its identical but separate Written Statements filed in both the cases, the respondent no. 3 i.e. insurance company raised preliminary objections that both the aforesaid injured were travelling in the offending vehicle as gratuitous passengers and were not covered under the terms Ranjeet & Santosh Kumar & Vs.Satish Kumar & Ors. Page 4 of 25 MACP Nos. 968/17 & 969/17; FIR No. 340/17; PS. Alipur DOD: 06.10.2022 and conditions of insurance policy. Thus, it is not liable to pay compensation to the injured in both the cases. However, it has been admitted that offending vehicle was insured with it at the time of accident. On the basis of these averments, it has prayed for dismissal of both the DARs.
6. From the pleading of the parties, the following issues were framed in MACP No. 968/17 & 969/16 separately by Ld. Predecessor vide order dated 01.05.2018 :
1) Whether the injured Ranjeet and Santosh suffered injuries in road traffic accident on 22.08.2017 at about 12:30 pm at Shani Mandir Chowk se 100 meter, bypass Alipur, Delhi, within the jurisdiction of PS. Narela (sicAlipur) due to rashness and negligence on the part of the driver Satish Kumar who was driving vehicle bearing registration no. DL1LP6806, owned by Bhim Singh and insured with Oriental Insurance Co. Ltd.? OPP.
2) Whether the injured is entitled to any compensation if so to what amount and from whom? OPP.
3) Relief.
7. In order to establish their claim, the petitioners have examined only themselves as PW1 in their respective cases and closed their respective evidence on 17.09.2019. On the other hand, no evidence was Ranjeet & Santosh Kumar & Vs.Satish Kumar & Ors. Page 5 of 25 MACP Nos. 968/17 & 969/17; FIR No. 340/17; PS. Alipur DOD: 06.10.2022 adduced by respondents no. 1 & 2. Insurance company has examined one witness i.e. R3W1 Ms. Shobha Khatak and closed its evidence on 03.12.2019.
8. I have heard the arguments advanced by Ld. Counsels for the parties. My findings on the issues are as under: ISSUE NO. 1 ( IN BOTH THE CASES)
9. For the purpose of this issue, the testimonies of PW1 who are injured in both the cases are relevant. They both have deposed in their respective evidence by way of affidavits (Ex. PW1/A) on the similar lines of averments made in both the DARs.
10. PW1 Sh. Ranjeet (injured in MACP No. 968/17) has relied upon the following documents: Sr. No. Description of documents Remarks
1. Original medical bills Ex PW1/1 to Ex.
PW1/42. DAR Ex. PW1/5(colly)
11. During his crossexamination on behalf of insurance company, he admitted that driver of offending vehicle had hit against a stationary truck with great force at the time of accident. He deposed that at the time of Ranjeet & Santosh Kumar & Vs.Satish Kumar & Ors. Page 6 of 25 MACP Nos. 968/17 & 969/17; FIR No. 340/17; PS. Alipur DOD: 06.10.2022 accident, he was in the cabin alongwith Santosh and driver. He denied the suggestion that he was travelling in the offending vehicle as a gratuitous passenger at the time of accident. He admitted that he was not an employee of registered owner of the offending vehicle. He further admitted that the offending vehicle was empty at the time of accident. He volunteered that the offending vehicle had been unloaded before the accident at Dhaula Kuan.
12. PW1 Sh. Santosh Kumar (injured in MACP No. 969/17) has relied upon DAR already exhibited as Ex. PW1/1(colly).
13. During his crossexamination on behalf of insurance company, he admitted that driver of offending vehicle had e deposed that at the time of accident, he was in the cabin alongwith Ranjeet and driver. He denied the suggestion that he was travelling in the offending vehicle as a gratuitous passenger at the time of accident. He admitted that he was not an employee of registered owner of the offending vehicle. He further admitted that the vehicle was empty at the time of accident. He volunteered that the vehicle had been unloaded before the accident at Dhaula Kuan.
14. The careful perusal of testimonies of both the aforesaid witnesses would go to show that the respondents more particularly insurance company was not able to impeach their testimony through litmus test of crossexamination. The said witnesses are found to have Ranjeet & Santosh Kumar & Vs.Satish Kumar & Ors. Page 7 of 25 MACP Nos. 968/17 & 969/17; FIR No. 340/17; PS. Alipur DOD: 06.10.2022 successfully withstood the crossexamination and nothing could be elicited during their crossexamination from the side of respondents so as to discredit their testimony made on Oath.
15. It is an admitted fact that the respondent no.1 is facing the trial as an accused in case FIR No. 340/17 wherein he has been charge sheeted for offences punishable U/s 279/338 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 by him. Same would also point out towards rash and negligent driving of offending vehicle by respondent no.1. The registration of FIR and filing of charge sheet against respondent no.1 is sufficient to prima facie establish negligence on the part of respondent no.1.
16. Copy of MLCs (which is part of DAR) of both the injured persons would show that they had been removed to SRHC Hospital, Narela, Delhi with alleged history of RTA on 22.08.17. They are shown to have sustained multiple injuries as mentioned therein. Again, there is no challenge to the aforesaid documents from the side of respondents including insurance company.
17. 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 petitioners namely Sh. Ranjeet and Sh. Santosh had sustained grievous injuries in the road Ranjeet & Santosh Kumar & Vs.Satish Kumar & Ors. Page 8 of 25 MACP Nos. 968/17 & 969/17; FIR No. 340/17; PS. Alipur DOD: 06.10.2022 accident which took place on 22.08.2017 at about 00:30 hrs at road 100m ahead of Shani Mandir Chowk, Alipur, Delhi, due to rash and negligent driving on the part of driver of offending vehicle. Thus, this issue is decided in favour of petitioners and against the respondents in both the DARs.
ISSUE NO.2
18. Section 168 of the Act enjoins the Claims Tribunal to hold an inquiry into the claim to make an award determining the amount of compensation which appears to it to be just and reasonable. It has to be borne in mind that the compensation is not expected to be a windfall or a bonanza nor it should be niggardly.
Compensation in MACP No. 968/17 (Injured Ranjeet) MEDICAL EXPENSES
19. PW1 injured Ranjeet has deposed in his evidence by way of affidavit (Ex. PW1/A) that after the accident, he was taken to SRHC Hospital, Narela, Delhi, where he was given first aid and thereafter, he was referred to LNJP Hospital, where he remained admitted from 22.08.2017 till 24.08.2017. He further deposed that after getting discharged from the said hospital, he took further treatment as an Outdoor patient for two months. He deposed to have spent Rs. 25,000/ on his medical treatment. For this, he has relied upon medical bills Ex. PW1 to Ex. PW1/4. During his cross Ranjeet & Santosh Kumar & Vs.Satish Kumar & Ors. Page 9 of 25 MACP Nos. 968/17 & 969/17; FIR No. 340/17; PS. Alipur DOD: 06.10.2022 examination on behalf of insurance company, he deposed that he had filed all the medical bills regarding his treatment. He admitted that he had no documentary proof of expenses of medical treatment of Rs. 25,000/.
20. It is relevant to note that the injured has relied upon medical bills to the tune of Rs. 6,361/ only, which are exhibited as Ex. PW1/1 to Ex. PW1/4. It is quite evident that the respondents have not disputed the authenticity and genuineness of the said medical bills during the course of inquiry. They have also not led any evidence in rebuttal so as to create any doubt on the genuineness of said bills. Accordingly, a sum of Rs. 6,361/ is awarded to the petitioner under this head.
LOSS OF INCOME
21. Injured namely Sh. Ranjeet has categorically deposed in his evidence by way of affidavit(Ex PW1/A) that he was doing labour work and was earning around Rs. 15,000/ per month at the time of accident. He further deposed that due to injuries suffered by him in the accident, he could not work for about 8 months. For this, he has relied upon copy of his discharge slip (which is part of DAR) of Lok Nayak Hospital. During his crossexamination on behalf of insurance company, he deposed that he did not have any documentary proof of his income of Rs. 15,000/ per month. He further deposed that he did not have any documentary proof of his employment. He admitted that he had taken treatment from government Ranjeet & Santosh Kumar & Vs.Satish Kumar & Ors. Page 10 of 25 MACP Nos. 968/17 & 969/17; FIR No. 340/17; PS. Alipur DOD: 06.10.2022 hospital. He further admitted that he did not have any documentary proof of loss of income for 8 months.
22. As per the discharge slip of Lok Nayak Hospital, he is found to have sustained fracture both bones of left leg. The petitioner remained admitted in the said hospital from 22.08.2017 to 24.08.2017. Relevant part of testimony of PW1 regarding the nature of his injuries, has gone unrebutted from the side of respondents.
23. Apart from the aforesaid documents produced by PW1 i.e. the petitioner, he has failed to file any other medical treatment record in order to show the exact period upto which he had received the medical treatment. Nevertheless, it can not be overlooked that the petitioner had suffered fracture both bone left leg. Considering the nature of injuries sustained by the petitioner Sh. Ranjeet, it is presumed that he would not have been able to work at all for a period of 3 months or so.
24. Apart from the bald statement made by PW1 Sh. Ranjeet that he was earning Rs. 15,000/ per month, no definite evidence whatsoever has been brought on record to prove his monthly income at the time of accident in question. Petitioner has also failed to file his educational qualification documents. Thus, in the absence of relevant record as mentioned above, I am inclined to calculate his loss of income while taking the income of an unskilled worker as per Minimum Wages Act applicable Ranjeet & Santosh Kumar & Vs.Satish Kumar & Ors. Page 11 of 25 MACP Nos. 968/17 & 969/17; FIR No. 340/17; PS. Alipur DOD: 06.10.2022 during the period in question The minimum wages of an unskilled worker were Rs. 13,584/ per month as on the date of accident which is 22.08.2017. Thus, a sum of Rs. 40,752/ (Rs. 13,584/ x 3) is awarded in favour of petitioner under this head.
PAIN AND SUFFERING
25. Hon'ble High Court of Delhi in the matter titled as " Vinod Kumar Bitoo Vs. Roshni & Ors." passed in appeal bearing no. MAC.APP 518/2010 decided on 05.07.12, has held as under: " It is difficult to measure the pain and suffering in terms of money which is suffered by a victim on account of serious injuries caused to him in a motor vehicle accident. Since the compensation is required to be paid for pain and suffering an attempt must be made to award compensation which may have some objective relation with the pain and suffering underwent by the victim. For this purpose, the Claims Tribunal and the Courts normally consider the nature of injury; the part of the body where the injuries were sustained, surgeries, if any, underwent by the victim, confinement in the hospital and the duration of treatment".
26. Injured himself as PW1 has deposed in his evidence by way of affidavit(Ex PW1/A) that he had sustained grievous injuries in the accident in question. He is found to have sustained grievous injuries. Thus, he would have undergone great physical sufferings and mental shock on account of the accident in question. Keeping in view the medical treatment record of petitioner available on record and the nature of injuries suffered by him, I Ranjeet & Santosh Kumar & Vs.Satish Kumar & Ors. Page 12 of 25 MACP Nos. 968/17 & 969/17; FIR No. 340/17; PS. Alipur DOD: 06.10.2022 hereby award a sum of Rs. 50,000/ towards pain and sufferings to the petitioner.
LOSS OF GENERAL AMENITIES & ENJOYMENT OF LIFE
27. As already mentioned above, there is sufficient evidence on record to establish that the petitioner had sustained grievous injuries in the accident. Thus, he would not be able to enjoy general amenities of life after the accident in question, during rest of his life and his quality of life has been definitely affected. In view of the nature of injuries suffered by him, I award a notional sum of Rs. 40,000/ towards loss of general amenities and enjoyment of life to the petitioner.
CONVEYANCE & SPECIAL DIET
28. The petitioner has deposed in his evidence by way of affidavit Ex. PW1/A that he had spent Rs. 10,000/ each on special diet and conveyance. However, the petitioner has failed to lead any cogent evidence on record in respect of amount incurred by him under the aforesaid heads. At the same time, it cannot be overlooked that he had sustained fracture both bone left leg in the accident in question. Thus, he would have taken special rich protein diet for her speedy recovery and would have also incurred considerable amount towards conveyance charges while commuting to the concerned hospital as OPD patient for his regular check up & follow up during the period of his medical treatment. In these facts and circumstances, I hereby award a notional sum of Rs. 10,000/ each for conveyance charges and special diet.
Ranjeet & Santosh Kumar & Vs.Satish Kumar & Ors. Page 13 of 25MACP Nos. 968/17 & 969/17; FIR No. 340/17; PS. Alipur DOD: 06.10.2022 Thus, the total compensation is assessed as under:
1. Medical Expenses Rs. 6361/
2. Loss of income Rs. 40,752/
3. Pain and suffering Rs. 50,000/
4. Loss of general amenities and Rs. 40,000/ enjoyment of life
5. Conveyance & special diet Rs. 20,000/ Total Rs. 1,57,113/ Rounded off to Rs. 1,57,000/ Compensation in MACP No. 969/17 (Injured Santosh Kumar) MEDICAL EXPENSES
29. PW1 injured Santosh has deposed in his evidence by way of affidavit (Ex. PW1/A) that after the accident, he was taken to SRHC Hospital, Narela, Delhi, where he was given first aid and thereafter, he was referred to LNJP Hospital. He further deposed that after getting discharged from the said hospital, he took further treatment as an Outdoor patient for about six months. He deposed to have spent Rs. 25,000/ on his medical treatment. During his crossexamination on behalf of insurance company, he admitted that he had taken treatment from government hospital. He admitted that he had no documentary proof of expenses of medical treatment of RS. 25,000/.
30. It is relevant to note that the injured has failed to file any of his medical bills in respect of expenses incurred by him on his medical Ranjeet & Santosh Kumar & Vs.Satish Kumar & Ors. Page 14 of 25 MACP Nos. 968/17 & 969/17; FIR No. 340/17; PS. Alipur DOD: 06.10.2022 treatment. Moreover, he is found to have received treatment from the government hospital. In view of the above and in the absence of any medical bill, no amount can be awarded to the petitioner under this head.
LOSS OF INCOME
31. Injured namely Sh. Santosh Kumar has categorically deposed in his evidence by way of affidavit(Ex PW1/A) that he was doing labour work and was earning Rs. 15,000/ per month at the time of accident. He further deposed that due to injuries suffered by him in the accident, he could not work for about 6 months. For this, he has relied upon copy of his medical treatment record (which are part of DAR) of Maulana Azad Institute of Dental Sciences, Lok Nayak Hospital and SRHC Hospital. During his crossexamination on behalf of insurance company, he deposed that he did not have any documentary proof of his income of Rs. 15,000/ per month. He further deposed that he did not have any documentary proof of his employment. He admitted that he had taken treatment from government hospital. He further admitted that he did not have any documentary proof of loss of income for 6 months.
32. As per the treatment record of Maulana Azad Institute of Dental Sciences, the petitioner is found to have sustained NOE fracture and bilateral orbital fracture. Relevant part of testimony of PW1 regarding the nature of his injuries, has gone unrebutted from the side of respondents.
Ranjeet & Santosh Kumar & Vs.Satish Kumar & Ors. Page 15 of 25MACP Nos. 968/17 & 969/17; FIR No. 340/17; PS. Alipur DOD: 06.10.2022
33. Apart from the aforesaid documents produced by PW1 i.e. the petitioner, he has failed to file any other medical treatment record in order to show the exact period upto which he had received the medical treatment. Nevertheless, it can not be overlooked that the petitioner had suffered NOE fracture and bilateral orbital fracture. Considering the nature of injuries sustained by the petitioner Sh. Santosh, it is presumed that he would not have been able to work at all for a period of 3 months or so.
34. Apart from the bald statement made by PW1 Sh. Santosh that he was earning Rs. 15,000/ per month, no definite evidence whatsoever has been brought on record to prove his monthly income at the time of accident in question. Petitioner has also failed to file his educational qualification documents. Thus, in the absence of relevant record as mentioned above, I am inclined to calculate his loss of income while taking the income of an unskilled worker as per Minimum Wages Act applicable during the period in question The minimum wages of an unskilled worker were Rs. 13,584/ per month as on the date of accident which is 22.08.2017. Thus, a sum of Rs. 40,752/ (Rs. 13,584/ x 3) is awarded in favour of petitioner under this head.
PAIN AND SUFFERING
35. Hon'ble High Court of Delhi in the matter titled as " Vinod Kumar Bitoo Vs. Roshni & Ors." passed in appeal bearing no. MAC.APP 518/2010 decided on 05.07.12, has held as under: Ranjeet & Santosh Kumar & Vs.Satish Kumar & Ors. Page 16 of 25 MACP Nos. 968/17 & 969/17; FIR No. 340/17; PS. Alipur DOD: 06.10.2022 " It is difficult to measure the pain and suffering in terms of money which is suffered by a victim on account of serious injuries caused to him in a motor vehicle accident. Since the compensation is required to be paid for pain and suffering an attempt must be made to award compensation which may have some objective relation with the pain and suffering underwent by the victim. For this purpose, the Claims Tribunal and the Courts normally consider the nature of injury; the part of the body where the injuries were sustained, surgeries, if any, underwent by the victim, confinement in the hospital and the duration of treatment".
36. Injured himself as PW1 has deposed in his evidence by way of affidavit(Ex PW1/A) that he had sustained grievous injuries in the accident in question. He is found to have sustained grievous injuries. Thus, he would have undergone great physical sufferings and mental shock on account of the accident in question. Keeping in view the medical treatment record of petitioner available on record and the nature of injuries suffered by him, I hereby award a sum of Rs. 50,000/ towards pain and sufferings to the petitioner.
LOSS OF GENERAL AMENITIES & ENJOYMENT OF LIFE
37. As already mentioned above, there is sufficient evidence on record to establish that the petitioner had sustained grievous injuries in the accident. Thus, he would not be able to enjoy general amenities of life after the accident in question, during rest of his life and his quality of life has Ranjeet & Santosh Kumar & Vs.Satish Kumar & Ors. Page 17 of 25 MACP Nos. 968/17 & 969/17; FIR No. 340/17; PS. Alipur DOD: 06.10.2022 been definitely affected. In view of the nature of injuries suffered by him, I award a notional sum of Rs. 40,000/ towards loss of general amenities and enjoyment of life to the petitioner.
CONVEYANCE & SPECIAL DIET
38. The petitioner has deposed in his evidence by way of affidavit Ex. PW1/A that he had spent Rs. 10,000/ each on special diet and conveyance. However, the petitioner has failed to lead any cogent evidence on record in respect of amount incurred by him under the aforesaid heads. At the same time, it cannot be overlooked that he had sustained NOE fracture and bilateral orbital fracture in the accident in question. Thus, he would have taken special rich protein diet for her speedy recovery and would have also incurred considerable amount towards conveyance charges while commuting to the concerned hospital as OPD patient for his regular check up & follow up during the period of his medical treatment. In these facts and circumstances, I hereby award a notional sum of Rs. 10,000/ each for conveyance charges and special diet.
Thus, the total compensation is assessed as under:
1. Loss of income Rs. 40,752/
2. Pain and suffering Rs. 50,000/
3. Loss of general amenities and Rs. 40,000/ enjoyment of life
4. Conveyance & special diet Rs. 20,000/ Ranjeet & Santosh Kumar & Vs.Satish Kumar & Ors. Page 18 of 25 MACP Nos. 968/17 & 969/17; FIR No. 340/17; PS. Alipur DOD: 06.10.2022 Total Rs. 1,50,752/ Rounded off to Rs. 1,51,000/
39. Now, the question which arises for determination is as to which of the respondents is liable to pay the compensation amount. The Ld. counsel for the insurance company has very vehemently argued that the offending vehicle was a "goods carrying vehicle" and the risk of passengers travelling therein was not covered under the policy of insurance (Ex.R3W1/A Colly). It is very strenuously argued that both the injured persons were travelling in the offending vehicle as a "gratuitous passengers" and as such, the claimants/petitioners can recover the Award amount from respondent No. 2/registered owner. In support of her aforesaid contention, she heavily relied upon testimony of R3W1 Ms. Shobha Khatak, Administrative Officer, Oriental Insurance Company Limited.
40. R3W1 has deposed in her evidence by way of affidavit (Ex. R3W1/1) that both the injured were travelling as gratuitous passengers in the offending vehicle which was goods carrying vehicle and gratuitous passengers are not covered under the terms and conditions of the insurance policy. Thus, there is breach of terms and conditions of the insurance policy. Thus, insurance company is not liable to pay any compensation to the petitioner. She has relied upon copy of policy as Ex. R3W1/A, Copy of RC of offending vehicle as Ex. R3W1/B, notice u/o 12 Ranjeet & Santosh Kumar & Vs.Satish Kumar & Ors. Page 19 of 25 MACP Nos. 968/17 & 969/17; FIR No. 340/17; PS. Alipur DOD: 06.10.2022 Rule 8 CPC sent to driver and registered owner as Ex. R3W1/C and postal receipts as Ex. R3W1/D & Ex. R3W1/E. She has not been crossexamined at all on behalf of respondents no. 1 & 2, they both being exparte.
41. Further, in support of her contentions, she has placed reliance upon the following judgments:
(a) "2018 ACJ 589", titled as, "Bhag Chandra Singh Gusain & Ors. V/s National Insurance Company Limited & Ors.", decided by Hon'ble High Court of Uttarakhand (date of decision: 08.03.2017) and;
(b) "2018 ACJ 1516", titled as, "New India Assurance Company Limited V/s Khudiram Das & Anr.", decided by Hon'ble High Court of Tripura (date of decision: 11.09.2017).
42. Per contra, learned counsel for the petitioners has placed reliance upon the following judgments:
(a) Civil Appeal No.3047/2017, titled as, "Manuara Khatun & Ors. V/s Rajesh Kumar Singh & Ors." decided by Hon'ble Supreme Court of India (date of decision: 21.02.2017), whereby the Hon'ble Supreme Court has been pleased to hold as under:
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15) The aforesaid question, in our opinion, remains no more res integra. As we notice, it was subject matter of several decisions of this Court rendered by Ranjeet & Santosh Kumar & Vs.Satish Kumar & Ors. Page 20 of 25 MACP Nos. 968/17 & 969/17; FIR No. 340/17; PS. Alipur DOD: 06.10.2022 three Judge Bench and two Judge Bench in past, viz., National Insurance Co. Ltd. vs. Baljit Kaur & Ors., (2004) 2 SCC 1, National Insurance Co. Ltd. vs. Challa Upendra Rao & Ors., (2004) 8 SCC 517, National Insurance Co. Ltd. vs. Kaushalaya Devi & Ors., (2008) 8 SCC 246, National Insurance Co.
Ltd. vs. Roshan Lal, [Order dated 19.1.2007 in SLP© No. 5699 of 2006], and National Insurance Co. Ltd. vs. Parvathneni & Anr., (2009) 8 SCC 785.
16) This question also fell for consideration recently in Manager, National Insurance Company Limited vs. Saju P. Paul & Anr., (supra) wherein this Court took note of entire previous case law on the subject mentioned above and examined the question in the context of Section 147 of the Act. While allowing the appeal filed by the Insurance Company by reversing the judgment of the High Court, it was held on facts that since the victim was travelling in offending vehicle as "gratuitous passenger" and hence, the Insurance Company cannot be held liable to suffer the liability arising out of accident on the strength of the insurance policy. However, this Court keeping in view the benevolent object of the Act and other relevant factors arising in the case, issued the directions against the Insurance Company to pay the awarded sum to the claimants and then to recover the said sum from the insured in the same proceedings by applying the principle of "pay and recover".
xxxxx xxxxx
22) In view of the foregoing discussion, we are of the view that the direction to United India Insurance Company (respondent No. 3) they being the insurer of the offending vehicle which was found involved in Ranjeet & Santosh Kumar & Vs.Satish Kumar & Ors. Page 21 of 25 MACP Nos. 968/17 & 969/17; FIR No. 340/17; PS. Alipur DOD: 06.10.2022 causing accident due to negligence of its driver needs to be issued directing them (United India Insurance Companyrespondent No.3) to first pay the awarded sum to the appellants (claimants) and then to recover the paid awarded sum from the owner of the offending vehicle (Tata Sumo)respondent No.1 in execution proceedings arising in this very case as per the law laid down in Para 26 of Saju P. Paul's case quoted supra.
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(b) Civil Appeal Nos.82788279 of 2018, titled as, "Shivaraj V/s Rajendra & Anr.", (date of decision 05.09.2018), whereby the Hon'ble Supreme Court has been pleased to lay down as under:
xxxxx
9. The High Court, however, found in favour of respondent No.2 (insurer) that the appellant travelled in the tractor as a passenger which was in breach of the policy condition, for the tractor was insured for agriculture purposes and not for carrying goods. The evidence on record unambiguously pointed out that neither was any trailer insured nor was any trailer attached to the tractor. Thus, it would follow that the appellant travelled in the tractor as a passenger, even though the tractor could accommodate only one person namely the driver. As a result, the Insurance Company (respondent No.2) was not liable for the loss or injuries suffered by the appellant or to indemnify the owner of the tractor. That conclusion reached by the High Court, in our opinion, is unexceptionable in the fact situation of the present case.
xxxxx Ranjeet & Santosh Kumar & Vs.Satish Kumar & Ors. Page 22 of 25 MACP Nos. 968/17 & 969/17; FIR No. 340/17; PS. Alipur DOD: 06.10.2022
43. I have considered all the aforesaid judgments. The Hon'ble Supreme Court of India has been pleased to analyse the case law in detail on the subject in Manuara Khatun's case (supra). Therefore, in view of the above, respondent No.3/insurance company is liable to pay compensation/Award amount to the claimant(s)/petitioner(s) in both the cases with a right to recover the same from the respondent No.2/registered owner. Issue No.2 is decided accordingly.
ISSUE NO. 3 RELIEF
44. In view of my findings on issues no. 1 & 2, following order is passed after relying upon judgment "Oriental Insurance Company Ltd. Vs. Sangeeta Devi & Ors bearing MAC. APP. 165/2011 decided on 22.02.2016.
a) A sum of Rs. 1,57,000/(Rupees One Lakh and Fifty Seven Thousand only) (including interim award amount, if any) in MAC Petition No. 968/17 alongwith interest @ 9% per annum in favour of petitioner and against the respondents w.e.f. date of filing of the petition i.e. 22.11.17 till the date of its realization.
b) A sum of Rs. 1,51,000/(Rupees One Lakh and Fifty One Thousand only) in MAC Petition No. 969/17 alongwith interest @ 9% per annum in favour of petitioner and against the respondents w.e.f. date of filing of the petition i.e. 22.11.17 till the date of its realization.
Issue no. 3 is decided accordingly.
Ranjeet & Santosh Kumar & Vs.Satish Kumar & Ors. Page 23 of 25MACP Nos. 968/17 & 969/17; FIR No. 340/17; PS. Alipur DOD: 06.10.2022 APPORTIONMENT
45. Statements of petitioners in terms of Clause 29 MCTAP were recorded on 18.02.2020. Having regard to the facts and circumstances of the case and in view of their statements, it is hereby ordered that the entire award amount alongwith interest shall be immediately released to the petitioners in both the cases through their respective saving bank accounts no. 3287366716 (of Sh. Ranjeet Kumar), Central Bank of India, Block Tehsil Safai Hardoi Etaw, UP, having IFSC Code CBIN0284229 and no. 3659069938 (of Sh. Santosh Kumar), Central Bank of India, Block Tehsil Safai Hardoi Etan, UP, having IFSC Code CBIN0284229 .
46. Respondent no. 3, being insurer of offending vehicle, is directed to deposit the award amount with SBI, Rohini Courts branch within 30 days as per above order, failing which insurance company shall be liable to pay interest @ 12% p.a for the period of delay. Concerned Manager, SBI, Rohini Court Branch is directed to transfer the respective amounts of petitioners in their aforesaid saving bank accounts mentioned supra, on completing necessary formalities as per rules. He be further directed to keep the said amount in fixed deposit in its own name till the claimants approach the bank for disbursement so that the award amount starts earning interest from the date of clearance of the cheques. Copy of this award be given dasti to claimants. Copy of this award be also given Ranjeet & Santosh Kumar & Vs.Satish Kumar & Ors. Page 24 of 25 MACP Nos. 968/17 & 969/17; FIR No. 340/17; PS. Alipur DOD: 06.10.2022 dasti to counsel for insurance company for compliance. Copy of this award alongwith one photograph each, specimen signatures, copy of bank passbooks and copy of residence proof of both the petitioners, be sent to Nodal Officer of SBI, Rohini Court, Branch, Delhi for information and necessary compliance. Form XVI & 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. Signed copy of this Award be placed on the judicial record of MAC Petition No. 969/17 as per the rules.
Announced in the open Court on 06.10.2022 (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 Ranjeet & Santosh Kumar & Vs.Satish Kumar & Ors. Page 25 of 25