Delhi District Court
Prabha Trehan And Ors vs Mejor Singh And Ors on 27 October, 2023
LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 1 of90
IN THE COURT OF MS. JASJEET KAUR, PRESIDING OFFICER,
MOTOR ACCIDENT CLAIMS TRIBUNAL, NORTH WEST
DISTRICT, ROHINI COURTS, DELHI
New No.177-2017
UNIQUE ID No. :DLNW01-007768-2016
1. Smt. Prabha Trehan W/o Late Sh. Dharampal Trehan,
2. Master Hemang Trehan
Through his guardian Smt. Prabha Trehan
Both R/o D-27, First Floor, Satywati Colony,
Phase-III, Ashok Vihar, Delhi.
........ Petitioners/claimants
Vs.
1. Major Singh S/o Sh. Sewa Singh
R/o Village Gura Nanakpura,
Post Lakhnauti, Saharanpur, UP
.......... Driver /R1
2. Mohd. Munshad Khan
S/o Shamshad Ahmad
R/o 109, Saiyadan, PS Gangoh,
Saharanpur, UP ........ Owner/R2
3. The New India Assurance Co. Limited,
12/1, Jeevan Raksha Building,
Asaf Ali Road, New Delhi
........ Insurance Co./R3
4. The Bharti Axa General Insurance Co. Ltd.
2nd Floor, Bigjos Tower, A-8,
Netaji Subhash Place, New Delhi
And
Bharti Axa General Insurance Co. Ltd.
Mercantile House, 7th Floor,
K.G. Marg, New Delhi ........ Insurance Co./R4
LRs of Prabha Trehan Vs. Major Singh & Ors. Page 1 of90
LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 2 of90
Other details
DATE OF INSTITUTION : 18.10.2016
DATE OF RESERVING JUDGMENT : 27.10.2023
DATE OF PRONOUNCEMENT : 27.10.2023
FORM - V
COMPLIANCE OF THE PROVISIONS OF THE MODIFIED
CLAIMS TRIBUNAL AGREED PROCEDURE TO BE
MENTIONED IN THE AWARD AS PER FORMAT REFERRED IN
THE ORDER PASSED BY THE HON'BLE DELHI HIGH COURT
IN FAO 842/2003 RAJESH TYAGI Vs. JAIBIR SINGH and ORS.
VIDE ORDER DATED 07.12.2018.
1. Date of the accident 05.09.2016
2. Date of intimation of the accident by the Petition was filed
investigating officer to the Claims Tribunal
3. Date of intimation of the accident by the Petition was filed
investigating officer to the insurance company.
4. Date of filing of Report under section 173 Cr.P.C. Petition was filed
before the Metropolitan Magistrate
5. Date of filing of Detailed Accident Information Not available on
Report (DAR) by the investigating Officer before record
Claims Tribunal
6. Date of Service of DAR on the Insurance Petition was filed
Company
7. Date of service of DAR on the claimant (s). Petition was filed
8. Whether DAR was complete in all respects? Petition was filed
9. If not, whether deficiencies in the DAR removed Petition was filed
later on?
10. Whether the police has verified the documents Petition was filed
filed with DAR?
11. Whether there was any delay or deficiency on the Petition was filed
part of the Investigating Officer? If so, whether
LRs of Prabha Trehan Vs. Major Singh & Ors. Page 2 of90
LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 3 of90
any action/direction warranted?
12. Date of appointment of the Designated Officer by Petition was filed
the insurance Company.
13. Name, address and contact number of the Sh. Navdeep Singh,
Designated Officer of the Insurance Company. Advocate
14. Whether the designated Officer of the Insurance No
Company submitted his report within 30 days of
the DAR? (Clause 22)
15. Whether the insurance company admitted the Not fairly computed
liability? If so, whether the Designated Officer of the compensation in
the insurance company fairly computed the accordance with law.
compensation in accordance with law.
16. Whether there was any delay or deficiency on the N/A
part of the Designated Officer of the Insurance
Company? If so, whether any action/direction
warranted?
17. Date of response of the claimant (s) to the offer Legal offer not filed
of the Insurance Company .
18. Date of the Award 27.10.2023
19. Whether the award was passed with the consent No
of the parties?
20. Whether the claimant(s) were directed to open Yes
saving bank account(s) near their place of
residence?
21. Date of order by which claimant(s) were directed 02.03.2019
to open saving bank account (s) near his place of
residence and produce PAN Card and Aadhar
Card and the direction to the bank not issue any
cheque book/debit card to the claimant(s) and
make an endorsement to this effect on the
passbook(s).
22. Date on which the claimant (s) produced the 26.08.2021 and
passbook of their saving bank account near the 14.02.2023
place of their residence along with the
endorsement, PAN Card and Aadhar Card?
23. Permanent Residential Address of the As mentioned above
Claimant(s)
24. Details of saving bank account(s) of the Petitioner Smt.
LRs of Prabha Trehan Vs. Major Singh & Ors. Page 3 of90
LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 4 of90
claimant(s) and the address of the bank with Prabha Trehan,
IFSC Code savings bank a/c
no.30844033385
Hemang Trehan,
saving bank a/c
no.40402041181 with
with SBI, Ashok
Vihar Branch, Delhi.
IFSC :SBIN0011546
25. Whether the claimant(s) saving bank account(s) Yes
is near his place of residence?
26. Whether the claimant(s) were examined at the Yes
time of passing of the award to ascertain his/their
financial condition.
27. Account number/CIF No, MICR number, IFSC 41065170303,
Code, name and branch of the bank of the Claims 110002427,
Tribunal in which the award amount is to be SBIN0010323, SBI,
deposited/transferred. (in terms of order dated Rohini Courts, Delhi
18.01.2018 of Hon'ble Delhi High Court in FAO
842/2003 Rajesh Tyagi vs Jaibir Singh.
JUDGMENT
1. The present claim petition proceedings have emanated from a claim petition preferred under Section 166 and 140 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'M.V. Act') for seeking compensation in the sum of Rs.3,50,00,000/- (Rupees Three Crore Fifty Lacs Only) along with interest at the rate of @ 12 % per annum in respect of fatal injuries sustained by one Sh. Chhavineet Trehan (hereinafter referred to as 'victim/deceased') in a road traffic accident accident. A perusal of court record reveals that an FIR bearing number 133/2016 dated 05.09.2016 for the commission of offences of causing simple hurt, grievous hurt and death not amounting to culpable homecide by rash and negligent driving as well as for the LRs of Prabha Trehan Vs. Major Singh & Ors. Page 4 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 5 of90 commission of offence of mischief by causing damage to private property having value of more than rupees fifty (Rs. 50/-) punishable U/s 279/304- A/337/338/427 of Indian Penal Code 1860 (hereinafter referred to as IPC) was registered at Police Station Dorahan, District Khanna, Punjab in respect of accident in question wherein subsequently charge sheet for the commission of aforementioned offences punishable U/s 279/304- A/427/337/338 IPC was filed against one Major Singh (hereinafter referred to as R1/respondent No.1) in respect of the fatal injuries sustained by the victims/deceased persons, namely, Chhavineet Trehan, Ritu Trehan, Rahul Khosla, Sapna Khosla and grievous injuries sustained by minor victim, namely, Hemang Trehan in the above said road traffic accident. However, legal heirs of the deceased/Chhavineet Trehan had preferred to file a claim petition before this Tribunal instead of pursuing their claim for compensation in the Details Accident Report (DAR) filed by the concerned investigating officer before the concerned Motor Accident Claims Tribunal at District Khanna, Punjab.
2. The brief facts of the case as discernible from the petition and the documents of the Legal Heirs of the deceased (hereinafter referred to as the petitioners/claimants or the "LRs of the deceased) are that on 05.09.2016, the victim Chhavineet Trehan along with his wife Ritu Trehan (since deceased), his co-brother, namely Rahul Khosla (since deceased), his sister- in-law, namely, Sapna Khosla (since deceased) and his minor son, namely, Hemang Trehan were returning from Jalandhar after attending the wedding ceremony of a relative by their own car make Maruti Celerio bearing registration No.DL12-CH-2569, which was being driven by deceased LRs of Prabha Trehan Vs. Major Singh & Ors. Page 5 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 6 of90 Chhavineet Trehan within prescribed speed limit, on the correct side of the road and upon reaching at Mallipur Bridge, Grand Trunk Karnal (GTK) Road, Doraha, Punjab, after descending/downward slope of a bridge on G.T.K Road, a Tempo/Truck make Tata 1109 bearing registration No.UP15- AT-8825 of brown colour (hereinafter referred to as the offending vehicle) was lying parked in the middle of road, without any parking indicator or parking lights, reflecting triangle etc. in violation of rules as prescribed by law, which was causing hindrance/obstacle to the smooth and safe flow of traffic at G.T.K Road, Doraha, Punjab. It is the case of the petitioners that as a consequence of obstructive parking of the above mentioned truck in the middle of the road, the car of the victims being driven by victim Chhavineet Trehan had got struck against the back side of the offending truck and had thereafter got crushed underneath its body. It is further the case of the petitioners that victim Chhavineet Trehan along with his wife Ritu Trehan (since deceased), his co-brother, namely Rahul Khosla (since deceased), his sister-in-law, namely, Sapna Khosla (since deceased) and his minor son, namely, Hemang Trehan had sustained injuries for treatment of which they were immediately removed to Civil Hospital, Ludhiana, where the doctors had declared victim Chhavineet Trehan as brought dead.
2.1 The postmortem on the body of the deceased was conducted by Dr. Ramninder Kaur Gill, Medical Officer, Lord Mahavir (L.M) Civil Hospital, Ludhiana, Punjab vide postmortem report (PMR) No.RKG/PMR/189/16 dated 05.09.2016 wherein the cause of death of victim Chhavineet Trehan had been opined as haemorrhagic shock as a result of multiple injuries including injuries to vital organs which were sufficient to cause death in the LRs of Prabha Trehan Vs. Major Singh & Ors. Page 6 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 7 of90 ordinary course of nature. Besides, as per the report of autopsy surgeon, all the injuries detected in the body of the deceased were antemortem in nature, that is, had been sustained by the victim immediately prior to his death.
3. R1/Major Singh S/o Sh. Sewa Singh, who was the driver of the offending vehicle and Mohd. Munshad Khan S/o Shamshad Ahmad, who was the owner of the offending vehicle (hereinafter referred to as Respondent no. 2/R2) had filed their joint written statement wherein they had stated that the petition filed in the present case was based on false facts. They claimed in their written statement that deceased Chhavineet Trehan was driving his car rashly and negligently, at a very fast speed and had dozed off while driving his car due to which he had hit his car against the alleged offending vehicle from behind. Thus, it was a defence of R1 and R2 that the case accident had occurred due to negligence of the deceased himself and therefore the legal heirs of the deceased were not entitled to any compensation in this regard. They reiterated their defence regarding contributory negligence of victim Chhavineet Trehan by stating that on 04.09.2016, Smt. Sapna Khosla, Rahul Khosla, Chhavineet Trehan, Ritu Trehan and Hemang Grehan had gone to attend marriage ceremony of their relation at Jalandhar, Punjab where they had not taken any sleep during the whole night on account of having remained busy in marriage related ritual and in the wee hours of the day on 05.09.2016, all the victims had taken their meal before leaving for Delhi by their Car bearing registration No.DL- 12CH-2569 being driven by Sh. Chhavineet Trehan and at about 7:00 a.m, upon reaching at G.T.K Road Doraha, Punjab, Chhavineet Trehan had felt dizzyness due to his taking meal in late hours which fact was substantiated LRs of Prabha Trehan Vs. Major Singh & Ors. Page 7 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 8 of90 from the postmortem report of deceased Chhavineet Trehan. It was further a defence of R1 and R2 that the offending vehicle was being driven at a normal speed of 40 kilometer per hour (kmph) whereas the car of the victims was being driven at a very high speed and had hit Tata Tempo bearing registration No.UP-15AT-8825 from its back side. It was further averred in their written statement by R1 and R2 that their mechanical inspection of Tata Tempo bearing registration No.UP-15AT-8825 was got conducted and in its report, it was mentioned that high light, parking light, indicator, horn, etc. of the vehicle were in order, however, its rear bumper and right side of its iron grill was totally damaged. They further averred in their written statement that there were three dents on the rear body and four bolts from rear cammanies on right side were found broken from the chassis of the alleged offending tempo, which shows that the vehicle being driven by Sh. Chhavineet Trehan had hit his Tata Tempo on its back and gone underneath it. It had been further stated in their written statement by R1 and R2 that in the mechanical inspection of the car No.DL-12CH-2569, it had been observed that the high lights, front bumper, horn, headlights, all windows, dash board, radiator, AC cables and all seats of the said car had been damaged.
3.1 Besides, it had been further averred in the written statement of R1 and R2 that the engine of the car of the victims had suffered extensive damage making the said car unfit for road use, thereby establishing the fact the car of the victims had gone underneath of the offending vehicle from behind due to the fact that the same was being driven at the very high speed by Chhavineet Trehan who had dozed off and had hit the tempo which was moving on the LRs of Prabha Trehan Vs. Major Singh & Ors. Page 8 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 9 of90 road at a normal speed. It was further claimed by R1 and R2 in their defence that as per the site plan prepared in case FIR No.133/2016 registered at PS Doraha, Ludhiana, Punjab, there were no skid marks on the road which establishes the fact that Chhavineet Trehan had not applied brakes at all when he had noticed the Tata Tempo moving ahead of him. It was thus a defence of R1 and R2 that from the mechanical inspection report of the car of the victim, it was apparent that the car being driven by Chhavineet Trehan was running at a very high speed while the vehicle being driven by R1 was moving on the road in permissible speed limits. It was further stated that the allegations of the petitioners to the effect that the Tata Tempo bearing registration No.UP-15AT-8825 was stationed on the road stood dispensed from the fact that if the Tata Tempo was lying stationed then the same would have moved to either of the directions on being hit from back side and in that situation, the car being driven by Chhavineet Trehan would not have gone underneath the tempo and hence, the aforementioned facts are sufficient to establish that the accident in question had occurred due to sole negligence of Chhavineet Trehan himself, who had his car from the back side against a moving tempo.
4. New India Assurance Company Limited, the insurer of the offending Tata Tempo bearing registration No. UP15-AT-8825 (hereinafter referred to as Respondent no. 3/R3) had filed its written statement wherein, it had been stated that the amount of compensation as claimed by the petitioners was very much excessive, exorbitant and without any basis and as such, the claim petition was liable to be dismissed on this ground alone. It had been further averred in defence of R3 that the claim petition was bad for LRs of Prabha Trehan Vs. Major Singh & Ors. Page 9 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 10 of90 misjoinder and non-joinder of necessary parties as it was the deceased driver of the car of the victims, who was driving his vehicle at an exorbitant speed without caring for the traffic rules and had struck his car against the stationary Tata Tempo and as per the averments of the petitioners themselves as well as the facts recorded in the FIR, the insured vehicle was visible from a distance standing on the road in broken down position, however, the deceased himself was driving his car at such a high speed that he could not control his car and had struck the same against the alleged offending Tata Tempo from back side with such force that the car was totally damaged and in case, the deceased had been driving his car at a normal speed, the accident in question would not have occurred, and hence, the owner and insurer of the car of the victims were necessary parties and as such there was no negligence on the part of the driver of the alleged offending Tata Tempo which had been stationed/parked by its driver after taking all precautions.
4.1 It had been further averred in the written statement of R3 that since no intimation as required u/s 134(c) of M.V. Act was ever given to the R3 of alleged accident involving the vehicle No.UP-15- AT-8825, the claim petition was liable to be dismissed on this ground. Besides, the insurance company had sought liberty to reserve its right to take appropriate defences u/s 149(2) and Section 170 of the M.V. Act if the owner and driver of the insured vehicle would either fail to contest the case on merits or were found to be in collusion with the petitioners during the course of investigation or trial of the matter. R3 had also reserved its right to file the amended written statement in case some new facts would come to its knowledge during trial of the present matter. In its written statement, R3 has LRs of Prabha Trehan Vs. Major Singh & Ors. Page 10 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 11 of90 denied that the deceased had made full efforts to avert the accident. R3 had further denied that the principle of res-ipsa-loquitur was applicable in the facts and circumstances of the present case.
5. Bharti Axa General Insurance Company Limited, the insurer of the car of the victims (hereinafter referred to as Respondent no. 4/R4) had filed its written statement wherein, it was stated that as per the contents of the FIR, on the date of accident, that is, 05.09.2016, Chhavineet Trehan was driving his Celerio car bearing registration No.DL-12CH-2569 and was coming back from Jalandhar along with other members of his family. It was further stated in its written statement by R4 that as per the eyewitness of the case accident, when the car driven by Chhavineet Trehan was descending the downward slope of a flyover at around 7.00 am, one Tata Tempo 1109 bearing registration No.UP-15AT-8825 was lying parked in the middle of the road at the rear end of the said downward slope without any indicator or parking lights and Chhavineet Trehan had tried to control the said car to his best but his car had banged on the rear portion of the wrongly parked truck as a consequence of which Chhavineet Trehan, Rahul Khosla and Ritu Trehan had died on the spot. It was further a defence of R4 that on the report of eyewitness Manoj Puri, the police had initiated the investigation and found that the accident had taken place due to the wrong parking and negligence of the driver of the Tata tempo in question, and hence, the R4 was not a necessary party to the present case. It was further averred in the written statement of R4 that it was evident from the site plan that the offending vehicle was not parked on the extreme left side of the road and was almost on the middle portion of the road after descending from the LRs of Prabha Trehan Vs. Major Singh & Ors. Page 11 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 12 of90 flyover, and hence, the R4/insurance co. was not liable for any payment of compensation to the victims of the accident. It was further a defence of R4 that the legal proposition of composite negligence was also in support of the claim petitions filed by the claimants and that the insurance company of vehicle bearing registration No.UP-15AT-8825 was not having any legal right to implead the answering respondent/R4 as a necessary party to the present claim petition and accordingly, the present claim petition was not maintainable against the answering respondent/R4. It was, however, admitted by R4 that car bearing registration No.DL-12CH-2529 was duly insured with the answering respondent no.4/R4 at the relevant time, that is, on 05.09.2016 vide policy no.S8461247 which was live and valid in the name of Techbook International Private Limited and liability of the insurance company was subject to the terms and conditions of the insurance policy. Besides, the insurance company/R4 had reserved its right to take appropriate defences u/s 149(2) and Section 170 of the M.V. Act if the owner and driver of the insured car would fail to contest the case on merits or were found to be in collusion with the petitioners during the course of investigation or trial of the matter.
6. From the pleadings of the parties, the following issues were framed by the Ld. Predecessor Court vide order dated 16.10.2017:-
(1) Whether Sh. Chhavineet Trehan had died on 05.09.2016 at about 7:00 am at Mallipur Bridge, GT Road, Doraha (Punjab) due to negligent parking of Tata Temp/Truck bearing registration No.UP-
15AT-8825 by R1/Major Singh in the middle of the road due to which the vehicle with registration No.DL-12CH-2569(Car) which LRs of Prabha Trehan Vs. Major Singh & Ors. Page 12 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 13 of90 was being driven by the deceased struck it/collided with it from behind causing death of the deceased? OPP (2) Whether petitioners are entitled to compensation, if so, to what amount and from whom? OPP (3) Relief.
7. After the framing of issues, opportunities were given to all the parties to prove their respective versions of the case by leading evidence in support of the same. The petitioners/LRs of the deceased had examined eight witnesses in support of their case. Sh. Vinod Badola, Senior Manager, H.R. from Techbooks International Pvt. Ltd., A-37, Sector-60, Noida, Uttar Pradesh had been examined as PW-1. Sh. Alok Kumar, Assistant, Cabinet Secretariat, New Delhi had been examined as PW3. Sh. Rupesh Kumar, Thakur, Accountant, The Indian School, Josip Broz Tito Marg, Near Molchand Flyover, New Delhi-110049 had been examined as PW4. Sh. Manoj Kumar Puri, eyewitness had been examined as PW5. Petitioner Mrs. Prabha Trehan had been examined as PW6. Sh. Shourya Khosla, son of the deceased Rahul Khosla and Sapna Khosla had been examined as PW7 whereas IO ASI Charanjit Singh had been examined as PW-8 by the petitioners. No person had been examined as PW2. No other witness had been examined by the petitioners/the LRs of deceased.
8. R1/Major Singh had examined two witnesses including himself as R1W1 and Sh. Suresh Kumar, Executive Store, Gharonda Toll Plaza, Haryana as R1W2. No other witness had been examined by the R1 in support of his person of the case.
9. A perusal of court record reveals that R2/Mohd. Munshad Khan, LRs of Prabha Trehan Vs. Major Singh & Ors. Page 13 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 14 of90 owner of the offending vehicle, R3/The New Indian Assurance Co. Ltd. and R4/Bhart Axa General Insurance Co. Ltd. had not examined any witness in support of their respective version of the case.
10. I have heard the final arguments addressed by Sh. Pradeep Sharma, learned counsel for the petitioners, Sh. Navneet Goel, learned counsel for R1, Sh. Navdeep Singh, learned counsel for R3, and Sh. Sujit Jaiswal, learned counsel for R4. None has appeared on behalf of the R2 for addressing final arguments despite several opportunities granted to him for the same. My issue-wise findings based on my appreciation of the evidence led by the parties in support of their respective versions of the case are reproduced herein below.
11. Issue wise findings are as under:-
ISSUES No. 1(1) Whether Sh. Chhavineet Trehan had died on 05.09.2016 at about 7:00 am at Mallipur Bridge, GT Road, Doraha (Punjab) due to negligent parking of Tata Tempo/Truck bearing registration No.UP-
15AT-8825 by R1/Major Singh in the middle of the road due to which the vehicle with registration No.DL-12CH-2569(Car) which was being driven by the deceased struck it/collided with it from behind causing death of the deceased? OPP The onus of proving this issue beyond preponderance of probabilities was upon the petitioners/ claimants.
11.1 The petitioners/LRs of the deceased had examined eight witnesses in support of their case. Sh. Vinod Badola, Senior Manager, H.R. from LRs of Prabha Trehan Vs. Major Singh & Ors. Page 14 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 15 of90 Techbooks International Pvt. Ltd., A-37, Sector-60, Noida, Uttar Pradesh had been examined as PW-1. Sh. Alok Kumar, Assistant, Cabinet Secretariat, New Delhi had been examined as PW3. Sh. Rupesh Kumar, Thakur, Accountant, The Indian School, Josip Broz Tito Marg, Near Molchand Flyover, New Delhi-110049 had been examined as PW4. Sh. Manoj Kumar Puri, eyewitness had been examined as PW5. Mrs. Prabha Trehan had been examined as PW6. Sh. Shourya Khosla, son of the deceased had been examined as PW7 whereas IO ASI Charanjit Singh had been examined as PW-8 by the petitioners. No witness had been examined as PW2. No other witness had been examined by the petitioners/the LRs of deceased.
11.2 PW1 Sh. Vinod Badola, Senior Manager H.R from Techbooks International Pvt. Ltd., having office A-37, Sector-60, Noida, Uttar Pradesh, had deposed that he has been authorised vide authority letter Ex.PW1/1 to make statement before the court. He proved on record the following documents:
a. Letter of appointment of deceased, namely, Sh. Chhavineet Trehan, Ex.PW1/2 (OSR).
b. Increment letter regarding increment in salary of deceased Chhavineet Trehan with effect from 01.04.2016 Ex.PW1/3 (OSR). c. Attested salary slips of deceased for the months of June, July, August, 2016 Ex.PW1/4 (colly).
d. Last attendance record of deceased Chhavineet Trehan for the months August and September, 2016 Ex.PW1/5 (OSR). e. Form 16 of the deceased for the financial year 2016-2017 LRs of Prabha Trehan Vs. Major Singh & Ors. Page 15 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 16 of90 Ex.PW1/6 (OSR).
f. Full and final settlement of the deceased Ex.PW1/7 (OSR).
11.3 In his cross examination by Sh. Navdeep Singh, learned Counsel for insurance company/R3, PW1 admitted that he had himself made the correction in the authority letter which is encircled at point A. He stated that as per appointment letter, the deceased was appointed on 06.06.2012. He further clarified that at the time of issuing of the appointment letter to any employee, all the agreements were got signed from the employee and his acknowledgement was also taken on the same date. He deposed that the deceased had joined the company on 06.06.2012. He admitted that in the declaration available on record, there was overwriting in respect of the date mentioned in the declaration. He further stated that the over writing might have been done by the deceased and the said declaration was not filled in his presence. He also admitted that the joining docket of the deceased was not signed by any official of the company in the coloumn provided for his signatures in the said docket. He voluntarily stated that the docket was not required to be signed by any company official. He proved the complete joining docket of the deceased on court record as Ex.PW1/DX. He deposed that he had brought the complete personal file of the deceased, available in their office according to which the deceased had joined on probation for six months was working regularly and had thereafter become a confirmed employee, however, he had not brought any confirmation letter of the deceased on the day of recording of his deposition in the Court. He denied the suggestion that as the deceased was never confirmed, hence, he had not brought any such confirmation letter in the personal file of the deceased. He LRs of Prabha Trehan Vs. Major Singh & Ors. Page 16 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 17 of90 voluntarily urged the court to refer to paragraph No.4, 5 & 6 of the letter of appointment of the deceased Ex.PW1/2 for interpretation of rules pertaining to confirmation. He admitted that the last three lines of paragraph No.4 of Ex.PW1/2 were as under:
"Unless confirmed in writing, you will be deemed as probationer after the expiry of the probationary period or the extended period of probation".
He voluntarily stated that the deceased was a confirmed employee and he could bring the confirmation letter, issued by the company on the next date of hearing after going through the record of the company and might be that letter was in the record of the Vice-President of the company. He deposed that the deceased was a senior official of the Rank of Deputy General Manager (DGM) of the company and his file being senior level would be with the Vice-President of the company.
On the next date of hearing, that is, on 25.11.2017, PW1 had brought the confirmation letter dated 06.12.2012 qua Chhavineet Trehan Ex.PW1/8. He admitted that Ex.PW1/8 was not the part of the file which was brought by him on the previous date of hearing. He voluntarily stated that confirmation letter Ex.PW1/8 was in the file of Vice-President of the Company. He stated that he had not brought the file which was in the custody of the Vice-President of the Company. He deposed that Ex.PW1/8 contained the signatures of Chhavineet Trehan at point X and letter of appointment Ex.PW1/2 contained the signatures of Chhavineet Trehan at point X which were original signatures. He further deposed that he did not have any specimen signatures of Chhavineet Trehan and that the original of LRs of Prabha Trehan Vs. Major Singh & Ors. Page 17 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 18 of90 Ex.PW1/2(xerox copy) had been given to the employee Chhavineet Trehan, however, the signatures of Chhavineet Trehan at point X on it were original. He further stated that he did not know as to how many duplicate files were being maintained in the HR Department of the company or regarding how many employees. He deposed that he was working in HR Department of the company and he used to look after the work of Provident Fund and ESIC Department, however, he had not been assigned the job of maintaining the personal files of any of the employees. He admitted that no document either brought by him on 25.11.2017 or on 20.01.2018 had been prepared before him. He denied the suggestion that Ex.PW1/8 was a forged and fabricated document or that it did not bear any signature of the employee. He deposed that Sh. Debaashish Chaudhary, who was the Vice-President of the Company, on the day of recording of his deposition, that is, on 20.01.2019, was working in his company since about 18 years. He further proved on court record the documents brought by him on 20.01.2018 as Ex.PW1/DX1 (colly). He admitted that in the 'Declaration' part of document Ex.PW1/DX1 (colly), there was an overwriting at point X. He denied the suggestion that the signatures of employee on Ex.PW1/2 and the documents as brought by him on 20.01.2018 were different or that the said documents were forged and fabricated. He admitted that Ex.PW1/8 had not been executed in his presence. He expressed his inability to tell if the employee had signed at point X on Ex.PW1/8 as the said document was not executed in his presence. He, however, reiterated that as per record the confirmation letter Ex.PW1/8 contained the signatures of the employee at point X. He stated that he did not have any other available record with him to show any LRs of Prabha Trehan Vs. Major Singh & Ors. Page 18 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 19 of90 admitted signatures of the employee. He denied the suggestion that Ex.PW1/DX1 (colly) was filled later on or that these documents were forged and fabricated documents or that only due to this reason, the spaces were blank in the earlier documents filed by him. He denied the suggestion that he was deposing falsely at the instance of the petitioners in order to support their case for compensation.
11.4 Sh. Gurman Chahal, learned proxy counsel for Sh. Amrik Singh, Ld. Counsel for R1 & R2 had adopted the cross-examination of PW1 as conducted on behalf of R3.
11.5 A perusal of the record reveals that no witness had been examined as PW2 by the petitioners in the present case.
11.6 PW3/Sh. Alok Kumar, Assistant from the office of Cabinet Secretariat, New Delhi proved the salary record of deceased, namely, Late Sh. Rahul Khosla, who was working as a Section Officer in their department, as Ex.PW3/1(colly).
11.7 In his cross-examination by Sh. Navdeep Singh, learned counsel for the insurance co./R3, PW3 deposed that he was working in the personal department and the salary record as brought by him was being maintained by the Accounts Department and that Ex.PW3/1 (colly) was not prepared in his presence. He further deposed that he had not brought the personal file of Sh. Rahul Khosla. He stated that as per the certificate brought by him, deceased Rahul Khosla had been appointed as an Assistant in the department with effect from 01.06.1994 and was promoted to the rank of Section Officer with effect from 16.11.2011. He admitted that all the details of the employee regarding his employment were generally contained in the personal file, LRs of Prabha Trehan Vs. Major Singh & Ors. Page 19 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 20 of90 which had not been brought by him on the day of recording of his deposition in the court. He expressed his inability to tell as to whether the family of the deceased was being paid family pension or not. He further expressed his inability to tell as to what amount had been paid to the family of the deceased Rahul Khosla after the case accident. He also expressed his inability to tell as to whether their department had obtained any personal accident policy of the deceased Rahul Khosla. He stated that the salary was being paid to all employees by their department by way of bank transfer. He further stated that he had not brought any record to show the transaction of the salary of the deceased through bank. He denied the suggestion that he had submitted the false documents to help the petitioners. He admitted that he had not brought the appointment letter of the deceased. 11.8 Sh. Gurman Chahal, Learned Proxy counsel for Sh. Amrik Singh, learned counsel for R1 and R2 had adopted the cross-examination of PW3 as conducted on behalf of R3.
11.9 PW4 Sh. Rupesh Kumar Thakur, Accountant, posted in Indian School, Josip Broz Tito Marg, Near Moolchand Flyover, New Delhi-110049 had proved the Service Record and Salary of the deceased Ms. Sapna Khosla as Ex.PW4/1 (colly).
11.10 In his cross-examination by Sh. Navdeep Singh, learned counsel for insurance company/R3, PW4 deposed that he had been working in the above-named school since August, 2016. He stated that no documentation regarding the appointment of deceased Smt. Sapna Khosla was done in his presence. He further stated that the personal file of the deceased brought by him did not contain any document qua her educational qualifications. He LRs of Prabha Trehan Vs. Major Singh & Ors. Page 20 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 21 of90 admitted that it was mentioned in the appointment letter of the deceased that her services could be terminated by giving a three months notice. He deposed that the salary was generally being given/paid to the deceased by transferring the amount in her bank account maintained at Punjab National Bank, Sheikh Sarai, New Delhi-110017. He also clarified that the Annexure C of Ex.PW4/1 contained the salary details of the deceased from her date of her appointment till she would have retired and the appointment letter dated 06.02.2014, which was part of Ex.PW4/1 contained the pay, pay band-2 of the deceased and Rs. 9300-34800 + G.P 4600 besides usual allowances qua the deceased employee, however, it did not mention as to when the salary of the deceased was to be increased. He denied the suggestion that Annexure C and D had been prepared at the instance of the petitioners or that the same were not as per the school records. He admitted that in the entire record produced by him, no tax deduction details had been mentioned. He deposed that the gross salary of the deceased for the month of August, 2016 was Rs. 51,462/-, whereas her salary after deductions was Rs. 48,208/- and her income tax deducted at source was Rs. 1,454/-.
11.11 Sh. Amrik Singh, learned counsel for R1 and R2 had adopted the cross-examination of PW4 as conducted on behalf of R3. 11.12 PW5 Sh. Manoj Kumar Puri S/o Sh. Jitender Kumar Puri has been examined by way of affidavit Ex.PW5/A, wherein he had deposed that he was an eyewitness of the case accident which had occurred on 05.09.2016 at around 7:00 am at Mallipur Pul (Bridge), G.T. Road, Doraha (Punjab) and he was complainant in the FIR No.0133/2016 registered at PS Doraha, District Khanna (Punjab). He deposed that on 04.09.2016, he had gone to LRs of Prabha Trehan Vs. Major Singh & Ors. Page 21 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 22 of90 Jalandhar with his family in his car make Audi bearing registration No.DL- 11CA-7117 to attend the marriage ceremony of one of his relatives, namely, Navita Bhalla D/o Sh. Veer Sein Bhalla, R/o Jalandhar (Punjab). He further deposed that besides his family, their other relatives, namely, Rahul Khosla, S/o Sh. J.P. Khosla along with his wife Ms. Sapna Khosla, R/o H.No.B-137, Moti Bagh-1, New Delhi and Chhavineet Trehan S/o Late Sh. Dharam Pal Tehan, his wife Ms. Ritu Trehan, R/o D-27, Satyawati Colony, Ashok Vihar, Phase-3, New Delhi had also gone to attend the marriage in their Celerio car bearing registration No.DL-12CH-2529. He stated that after attending the said marriage on 05.09.2016, they all had started their return journey to Delhi from Jalandhar at around 5.00 am and he (PW5) was following Chhavineet's Celerio car bearing registration No. DL-12CH-2529 being driven by him at a normal speed. He further stated that as soon as they had crossed Doraha City at around 7:00 am and were descending down Mallipur Pul (Bridge) on G.T. Karnal Road, they had noticed that a brown coloured Tata Tempo make 1109 was lying parked without any indicator/blinking indicator or parking lights in the middle of the road by an unknown driver which was creating hindrance/obstacle to the traffic and he had noticed that the car of Mr. Chhavineet Trehan had banged against the above mentioned tempo at its right back side. He stated that Chhavineet Trehan had tried his best to control his vehicle. He further stated that he had parked his car on the left side of the road and after coming out of the car, he had noticed that driver Chhavineet Trehan, Rahul Khosla sitting on the conductor side seat and Ritu Trehan sitting at the back seat had died at the spot due to injures as a result of collision with the offending vehicle. He deposed that he had LRs of Prabha Trehan Vs. Major Singh & Ors. Page 22 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 23 of90 noticed the registration number of the offending Tempo 1109 as UP-15AT- 8825. He further deposed that a mob of local people had gathered on the road and the driver of the offending tempo had fled away from the spot but he could recognize him. He stated that Sapna Khosla and Hemang Trehan, who were sitting at the back seat of the car, had got seriously injured and he along with the help of some passersby had shifted them to IVY Hospital, Khanna (Punjab) in a private vehicle leaving behind his own family members at the spot near the deceased person in their car. He deposed that while he was on his way to intimate the police about the accident, the police officials had met him on the way at GT Road. He stated that the accident in question had occurred because of the parking of Tata Tempo bearing registration No.UP-15AT-8825 by unknown driver in the middle of the road which was creating hindrance/obstacle to the traffic and was seized by the police from the spot of the accident. He stated that the police officials had recorded his statement and an FIR was registered in the present case. He relied upon the following documents in support of his deposition:
1. Certified copy of FIR along with its English translation Ex.PW5/1.
2. Certified copy of site plan alongwith its English translation Ex.PW5/2.
3. Coloured copy of the DL of R1 Ex.PW5/3.
4. Copy of the RC of offending vehicle Ex.PW5/4.
5. Copy of permit of goods carrier of the offending vehicle Ex.PW5/5.
6. Copy of fitness certificate of the offending vehicle Ex.PW5/6.
7. Copy of insurance policy of the offending vehicle Ex.PW5/7.
8. Copy of the mechanical inspection report of the offending tempo LRs of Prabha Trehan Vs. Major Singh & Ors. Page 23 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 24 of90 along with its English translation Ex.PW5/8.
9. Certified copy of mechanical inspection report of car bearing registration No.DL12-CH-2569 Ex.PW5/9.
10. Certified copy of his statement recorded in FIR No. 133/2016 of PS Doraha along with its translation Ex.PW5/10.
11. Copy of the statement of ASI Hardam Singh, No. D861/Khanna Ex.PW5/11.
12. Copy of statement of Ct. Navjeet Singh, No.597/Khanna Ex.PW5/12.
13. Memo of arrest of R1 Ex.PW5/13.
14. Production memo of RC of offending vehicle along with its insurance policy Ex.PW5/14.
15. Copy of certificate with respect to registration of case and release of R1 on bail Ex.PW5/15.
16. Certificate with respect to handing over dead body of the deceased,namely, Chhavineet Trehan, Ritu Trehan and Rahul Khosla for last rites Ex.PW5/16.
11.13 In his cross examination by Sh. Navdeep Singh, learned counsel for the insurance company/R3, PW5 deposed that the distance between the place of accident and the place from where they had started their journey was around 90 Kms. He stated that they had returned from the marriage ceremony at around 11:30 pm and had reached at their place of stay at around 12:00 mid night since they had to leave for Delhi early in the morning. He deposed that they were staying in different rooms. He further stated that he had started for Delhi at around 5:00 am and on the way, they had crossed a Toll Bridge for which he had got the receipt for crossing the LRs of Prabha Trehan Vs. Major Singh & Ors. Page 24 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 25 of90 Toll Bridge, however, the said slip was not in his possession on the day of recording of his deposition. He deposed that the vehicle owned by deceased Mr. Chavineet Trehan had also crossed the said Toll Bridge simultaneously.
He stated that the vehicle which he was driving at the time of occurrence of the case accident was having the registration No. DL11-CA-7117 and his cousin was sitting alongwith him in that vehicle. After seeing the photographs of the Toll, PW5 admitted that in the photographs Ex.PW5/R3W1, the vehicle which was crossing the toll was owned by him. He deposed that he had crossed the Toll at around 6:00 am. He denied the suggestion that his vehicle had crossed the Toll Bridge at about 9:00 am on the date of accident. After seeing the photograph Ex.PW5/R3W2 shown by the learned counsel for R3, PW5 had expressed his inability to identify the offending truck from that photograph. He deposed that the distance between the Toll Bridge and the place of accident was around 35 Kms. He stated that he was having two mobile phones having mobile Nos.9811134355 and 9911134355 at the time of accident. He deposed that he did not have the call records of the aforesaid numbers pertaining to the date of accident and that the service provider in respect of abovesaid mobile numbers were Vodafone and Idea which were postpaid. He stated that the road where the incident had taken place was a four lane road. He deposed that the accident had taken place almost in the middle of the road. He stated that he was not aware as to whether the IO had taken the photographs of the accidental vehicles or not. He admitted that the vehicle which has been shown to be involved in the accident had been shown in the photographs Ex.PW5/R3W1/3, Ex.PW5/R3W1/4, Ex.PW5/R3W1/5 & Ex.PW5/R3W1/6.
LRs of Prabha Trehan Vs. Major Singh & Ors. Page 25 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 26 of90 After seeing the photograph of the road Ex.PW5/R3W1/7, PW5 expressed his inability to identify the said road as the road on which the accident in question had taken place as there was no sign board etc. to identify the same. He stated that the speed of the vehicle of the deceased was around 70-72 Kms per hour. He denied the suggestion that there was no bridge at the place of accident. He voluntarily stated that the vehicle of the deceased was on the descending slope of the bridge at the time of accident. He deposed that the bridge was at the back of the place of incident and there was a descending slope. He denied the suggestion that the place where the accident had taken place was a flat straight road. He deposed that the visibility at the time of incident was exactly not proper. He stated that the accident had taken place in September, 2016. He expressed his inability to tell as to whether it was a rainy day or a cloudy day on the date of accident. He deposed that the vehicle going ahead was visible from a distance of around 50 meters. He denied the suggestion that the deceased was driving his vehicle at a very high speed at the time of accident or that the dead bodies from the car of the deceased had to be extracted with the help of a crane. He admitted that a crane was visible in the photographs Ex.PW5/R3W1/4 & Ex.PW5/R3W1/6. He denied the suggestion that the deceased was driving his car at very high speed or that he was driving on the wrong side of the road due to which he struck the car at the back of the tempo/truck.
11.14 PW5 deposed that he had been driving since year 2001 and was aware about the Motor Vehicle Rules. He admitted that the extreme left lane is for the heavy vehicles only. He expressed his unawareness as to whether the LRs of Prabha Trehan Vs. Major Singh & Ors. Page 26 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 27 of90 deceased, namely, Sh. Chavineet Trehan used to take liquor or not. He stated that no liquor was served in the marriage ceremony which they had attended. He expressed his inability to produce the marriage videography/photographs. He denied the suggestion that he was deliberately not producing the photographs/videography of the marriage ceremony as the same contained pictures showing consumption of liquor by deceased Chhavineet Trehan. He stated that he had not called any of the relatives of the deceased persons immediately after the accident and that he had not tried to take out the occupants of the vehicle in order to rush them to the hospital, as a crowd had gathered at the spot and he was very perplexed due to the accident. He expressed his inability to recall anything about identity of the person to whom he had made a call after the accident as well as the time period at which he had made the said call after the accident. He deposed that he inquired from someone about the police station and thereafter he had left the spot to call the police. However, in the meanwhile someone had already called the police and when he saw the police coming, he had returned to the spot with the police. He deposed that he had gone to call the police after about 10 minutes of the accident. In response to a court question as to whether he had tried to take out the occupants of the car in the said 10 minutes, PW5 replied that the public had already taken out one injured, namely, Hemang Trehan from the car. He stated that three persons had died at the spot. He further stated that there was one other injured, namely, Sapna, who was his cousin, however, he had not made any effort during the said time prior to arrival of police to take her out from the car. He denied the suggestion that since he was not present at the place of LRs of Prabha Trehan Vs. Major Singh & Ors. Page 27 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 28 of90 accident, therefore, there was no occasion for him to take the injured to the hospital.
11.15 PW5 Manoj Kumar Puri deposed that the police officials had sent the injured persons to the hospital in an ambulance. He further deposed that the police officials had reached at the spot at about 6:50 a.m and he had met the police at the road moving parallel to the bridge and he had gone to the hospital thereafter. He stated that he had visited the PS at about 10:00 am alone and no police official had accompanied him. He expressed his inability to tell as to whether the FIR was written prior to or after 10:00 am or not. He deposed that his statement was recorded by the police. He further deposed that when he left the hospital for the PS, his relatives had reached at the hospital. He denied the suggestion that a false and fabricated case was later on prepared after the accident or that there was no negligence on the part of the driver of the tempo/truck or that he himself was not following the car of the deceased or that the tempo/truck was stationed on the extreme left side of the road in its own lane. He further denied the suggestion that deceased Chhavineet Trehan was himself negligent in causing the accident as he had struck his car against the truck by driving it at a very fast speed or that he had entered a wrong lane or that he had dashed his car at the back side of a stationary tempo/truck which was stationed in its own lane. He admitted that the front and complete left side portion of the car of the deceased was badly crushed in the accident. He expressed his inability to tell as to whether the said damage could have only be caused if a vehicle was being driven at a very high speed or not. He denied the suggestion that his vehicle had crossed the Toll Bridge at about 9:00 am as LRs of Prabha Trehan Vs. Major Singh & Ors. Page 28 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 29 of90 per the report of the Toll Authority or that it did not cross the said Toll at about 7:00 am as deposed by him. He expressed his inability to tell as to whether his vehicle had again crossed the Toll Bridge on the date of accident or not. He deposed that he had gone to attend a marriage at Jalandhar along with his family comprising of his wife and his children, who were travelling with him, whereas his parents had gone to the marriage separately. He further deposed that when he started his journey back to his home, he had come back alone with his cousin and his family was not with him. He stated that he did not know the contents of the affidavit Ex.PW5/A. He voluntarily stated that he could not recall the contents of his affidavit, however, the said affidavit was got prepared by his counsel upon his instructions. He admitted that he had mentioned in paragraph No.5 of his affidavit that he had left his family members at the spot near the deceased persons in the car. Immediately thereafter he again stated that by the word 'spot' he had meant the place of marriage where they had stayed, that is, Arya Samaj Mandir, Model Town, Jalandhar. He deposed that he was 10 th pass but sometimes he was not able to understand the written English. He further stated that he had gone through the contents of paragraph No.5 of his affidavit before signing the same. He admitted that it was no where mentioned in paragraph No.5 of his affidavit that he was with his cousin. He deposed that the FIR was recorded on his statement. He deposed that the meaning of 'the spot' in FIR also meant the place of marriage where they had stayed, that is, Arya Samaj Mandir, Model Town, Jalandhar. He stated that no statement of his cousin was recorded by the police. He denied the suggestion that none of cousins had accompanied him and for that reason the details of the said cousin had LRs of Prabha Trehan Vs. Major Singh & Ors. Page 29 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 30 of90 nowhere been mentioned in the FIR as well as in his evidence by way of affidavit. He stated that the police official had recorded his statement only once, that is, on the date of incident at about 10:00 am.
11.16 PW5 deposed that after reaching the spot of accident, he had requested the public persons present at the spot of accident to call the police, however, some public person had already called the police and that the public persons at that time were also taking out dead bodies from the car. He further deposed that at that time, someone told him that police station was nearby. He stated that while he was going to police station on foot, he had met some police officials who were already going to the spot of accident and he had returned with them to the spot of accident. He further stated that this exercise took him about 15-20 minutes time and thereafter, he had gone to hospital with one of his injured cousin, namely, Sapna Khosla, who had subsequently expired. He further deposed that the entire front portion including bonnet of the car had gone beneath the truck. He denied the suggestion that as the car was at a very high speed, therefore, it went beneath the truck. He failed to recollect as to whether the sun had arisen by that time or not. He stated that the visibility on the road was appropriate (thik thak thi). He expressed his inability to recall the distance to which the vehicles were visible on the road. He deposed that there were probably some slight skid marks on the road at the place of accident. He clarified that he had not shown any skid marks to the IO during investigation. He denied the suggestion that skid marks can only come when a vehicle was at a very high speed. He voluntarily stated that the skid marks could appear even at the speed of 40-50 Kms per hour, if the brakes are applied suddenly. He LRs of Prabha Trehan Vs. Major Singh & Ors. Page 30 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 31 of90 expressed his inability to tell as to whether while leaving the place of marriage, victim driver Mr. Chhavineet Trehan (since deceased) had consumed heavy meal or not. However, he stated that no heavy food was served in the morning hours, when they had left the place of marriage. He deposed that from the place of accident, he had not called any of his relative and that he had reached the hospital, where Sapna Khosla had been shifted by the ambulance in his own car after about 5-10 minutes. He stated that he had remained present at the hospital till around 9:30 am and thereafter, he had gone to police station as he was being called at the police station for recording of FIR. He further stated that his other relatives had reached the hospital upon receipt of his phone calls. He stated that he was not in a position to produce his call records of 05.09.2016. He denied the suggestion that neither any calls were made by him nor he was present at the hospital and for that reason, he was not producing his call records of the relevant date. He deposed that from the hospital, he had straight away gone to the police station and at that time, he was not accompanied by any police official. He stated that the photographs of the accidental vehicles were not taken in his presence. He deposed that the site plan was not prepared by the IO in his presence. He deposed that he had no photograph or any evidence to show that the accident had taken place in the middle of the road. He denied the suggestion that he was not following the vehicle of the victims and had not witnessed the case accident. He further denied the suggestion that the accident had taken place due to the negligence of the deceased Chhavneet Trehan, who was driving his vehicle at an excessive speed and could not control his vehicle. He stated that he had told about the accident LRs of Prabha Trehan Vs. Major Singh & Ors. Page 31 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 32 of90 to the other claimants and had also explained to them the manner in which the accident had taken place. He further stated that he was not aware about the contents of the petition as filed by the claimants. He denied the suggestion that the accident had solely occurred due to the negligence of deceased Chhavneet Trehan. He further denied the suggestion that he was deposing falsely at the instance of the petitioners to help them being their relative.
11.17 Sh. Naveen Jain, learned proxy counsel for Sh. Vikas Lakra, learned counsel for R4 Bharti AXA General Insurance Company Limited had adopted the cross-examination of PW5 as conducted on behalf of R3.
11.18 None had appeared on behalf of R1 and R2 to cross-examine PW5 and therefore the cross-examination of PW5 on behalf of R1 and R2 was treated as nil despite opportunity having been given to R1 and R2 to cross- examine PW5.
11.19 PW6 Mrs. Prabha Trehan W/o Late Mr. D.P. Trehan deposed by way of affidavit Ex.PW6/A stating therein that she was one of the petitioner in the present matter and was also the mother of the deceased, namely, Late Chhavineet Trehan and was well conversant with the facts and circumstances of the case. She deposed that on 04.09.2016, her deceased son Chhavineet Trehan along with his wife Ritu Trehan and minor son Hemang Trehan had gone to Jalandhar in his car bearing registration No.DL12-CH-2569 make Celerio to attend the marriage ceremony of one of their relatives Navita Bhalla D/o Sh. Veer Sein Bhalla, R/o Jalandhar, Punjab. She further deposed that in addition to them, their other relatives LRs of Prabha Trehan Vs. Major Singh & Ors. Page 32 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 33 of90 Rahul Khosla S/o Sh. J.P. Khosla and his wife Sapna Khosla W/o Sh. Rahul Khosla, R/o H.No. B-137, Moti Bagh-1, New Delhi had also attended the above said wedding ceremony. She deposed that after attending the said marriage ceremony on date 05.09.2016, all five persons named above, that is, Chhavineet Trehan S/o Late Sh. Dharam Pal Trehan, his wife Ritu Trehan and his minor son Master Hemang Trehan, all R/o D-27, Satyawati Colony, Ashok Vihar, Phase-3, New Delhi and Rahul Khosla S/o Sh. J.P. Khosla and his wife Sapna Khosla were coming back to Delhi from Jalandhar and after crossing Doraha City at around 7:00 am, after descending down Mallipur Pul (bridge) G.T. Road, they had met with an accident with Tata Tempo 1109 bearing registration No. UP15-AT-8825, which was lying wrongly parked without any indicator/blinking indicator or parking lights in the middle of the road, by its driver/R1, as a consequence of which victims Chhavineet Trehan, Rahul Khosla and Ritu Trehan died at the spot due to injuries, sustained in the case accident, whereas victims Sapna Khosla and Master Hemang Trehan were seriously injured and had been taken with the help of some passersby to IVY Hospital, Khanna, Punjab in a private vehicle, where Sapna Khosla had died and whereas Master Hemang Trehan was discharged from the hospital after requisite treatment. She further deposed that deceased Chhavineet Trehan was her only son, who was married to Ritu Trehan and from the said wedlock only one son, namely, Master Hemang Trehan was born, who was also one of the petitioners in the present case. She deposed that at the time of accident, her deceased son Chhavineet Trehan was aged about 47 years and was possessing sound mind, health as well as robust physique and was neither suffering from any LRs of Prabha Trehan Vs. Major Singh & Ors. Page 33 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 34 of90 kind of ailment nor addicted to any vice. She further deposed that the deceased was working permanently as a Deputy General Manager (HR) in Aptara, Techbooks International Private Limited at A-37, Sector-60, Noida, U.P and was getting salary of Rs. 1,52,584/- per month at the time of accident and if the deceased had not expired in the case accident, his income would have increased more than five times and he would have lived a long life with the petitioners and other members of his family. She deposed that deceased Chhavneet Trehan was her only son and she alongwith her grand son Hemang Trehan were dependent upon the income of her deceased son Chhavneet Trehan. She further deposed that deceased Chhavineet Trehan was a brilliant student right from the beginning of his studies and had graduated as a Commerce Student from a very prestigious college, that is, Shri Ram College and Commerce, University of Delhi, and had subsequently pursued his Post Graduate Diploma in Management from a very prestigious college of Management Studies, that is, Institute of Management Technology (IMT), Ghaziabad, after which the deceased had been placed at a Senior Level in the HR Department as Deputy General Manager of his company. She further deposed that the deceased had also qualified a test, which was required to be placed in any International Assignment. She stated that her deceased daughter in law Ritu Trehan was aged about 42 years at the time of occurrence of case accident and was permanently employed as an Arts teacher (TGT-Arts) with Mata Jai Kaur Public School, Ashok Vihar Phase-III, Delhi-110052 on salary to the tune of Rs. 50,214/- per month and her salary would have increased after implementation of 7th pay commission. She deposed that her grand son LRs of Prabha Trehan Vs. Major Singh & Ors. Page 34 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 35 of90 Hemang Trehan had sustained multiple injuries on his head and right ear for which he had undergone ear laceration by plastic surgeon. She also deposed that claim petition filed by her was correct and also duly signed by her and other petitioner, that is, Master Hemang Trehan and in these circumstances, the petitioners were entitled to the award in their favour along with interest and cost.
11.20 In her cross-examination by Sh. Navdeep Singh, learned counsel for insurance company/R3, PW6 deposed that she was not an eye witness to the case accident and as such she expressed her inability to explain the manner of occurrence of the case accident. She denied the suggestion that she was not dependent upon the deceased persons and was having sufficient source of income of her own. She further stated that she did not have any record relating to the educational qualification and income tax paid of the deceased persons. She also stated that she had not filed on record any bank account details of the deceased persons. She denied the suggestion that deceased persons were not earning the amounts as claimed by her in her petition. She further stated that her grand son had been cured of the injuries sustained in the case accident. She also stated that she had filed all the documents relating to the treatment of her minor grand son, who was studying in 9 th standard. She admitted that her grand son had not suffered any permanent disability due to injuries sustained in the case accident. She denied the suggestion that she had filed false affidavit regarding the income and profession of the deceased and her grand son.
11.21 Sh. Naveen Jain, learned Proxy counsel for Sh. Vikas Lakra, learned Counsel for R4 Bharti AXA GIC Limited had adopted the cross-examination LRs of Prabha Trehan Vs. Major Singh & Ors. Page 35 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 36 of90 as already conducted on behalf of R3. She was also cross-examined on behalf of R1 and R2 and none had appeared on behalf of R1 and R2 despite repeated calls, hence cross-examination was given as 'Nil. Opportunity given'.
11.22 Sh. Shourya Khosla S/o Late Sh. Rahul Khosla has been examined as PW7, who has tendered his evidence by way of affidavit as PW7/A. He deposed that he was one of the petitioners in the present matter and was well conversant with the facts and circumstances of the case. He further deposed that on 04.09.2016, his deceased father, namely, Sh. Rahul Khosla alongwith his deceased mother, namely, Smt. Sapna Khosla went to Jalandhar to attend the marriage ceremony of one of their relatives, namely, Navita Bhalla D/o Sh. Veer Sein Bhalla, R/o Jalandhar . He deposed that after attending the said marriage ceremony on 05.09.2016, his deceased father and mother along with Chhavineet Trehan S/o Late Sh. Dharam Pal Trehan, his wife Ritu Trehan and their minor son Master Hemang Trehan were coming back to Delhi from Jalandhar by car make Celerio bearing registration No. DL12- CH-2569, which was being driven by Chhavineet Trehan and after crossing Doraha City at about 7:00 am after descending Mallipur Pul (bridge) on G.T.K. Road, their car had met with an accident with Tata Tempo 1190 bearing registration No.UP15-AT-8825, which had been wrongly parked without any indicator/blinking indicator or parking lights in the middle of the road, by its driver/R1. He further deposed that his father Rahul Khosla, Chhavineet Trehan and Ritu Trehan expired on the spot whereas his mother Sapna Khosla and Master Hemang Trehan were seriously injured, and were shifted with the help of some passerby to IVY Hospital, Khanna, Punjab in a LRs of Prabha Trehan Vs. Major Singh & Ors. Page 36 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 37 of90 private vehicle, where his mother Sapna Khosla had expired during the course of treatment and Master Hemang Trehan was discharged after requisite treatment. He also deposed that he alongwith his grand parents, namely, Sh. J.P. Khosla and Smt. Uma Khosla were the only surviving legal heirs of his parents. He further deposed that at the time of accident, his deceased father Rahul Khosla aged about 47 years was possessing sound mind, health and robust physique and was not suffering from any kind of ailment or addicted to any vice. He stated that his father was working permanently as a Section Officer with Director of Accounts (DDO), Cabinet Secretariat, East Block-IX, Level-V, R.K. Puram, New Delhi-110066 and was getting salary in the sum of Rs. 83,133/- per month. He further stated that if his father had not died in the said case accident, then the income of his father would have increased handsomely and he would have been lived a long life with him and other members of his family. He also deposed that his father being a Central Government Employee would have also been benefited by the implementation of 7th Pay Commission and other such benefits, which had been implemented from 01.01.2016. He further deposed that at the time of occurrence of the case accident, his deceased mother Sapna Khosla was aged about 43 years and was possessing sound mind, health and a robust physique and was not suffering from any kind of ailment or addicted to any vice. He further deposed that his mother was working permanently as a Hindi Teacher (TGT) with the Indian School, Josip Broz Tito Marg, Sadiq Nagar, New Delhi-110049 and was getting salary in the sum of Rs. 51,462/- per month. He further deposed that his mother was leading a peaceful and comfortable life with him and other members of her LRs of Prabha Trehan Vs. Major Singh & Ors. Page 37 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 38 of90 family and friends and had she not died in the said accident, her income would have increased handsomely and she would have lived a long life with him and other members of her family. He further deposed that her deceased mother being an Employee of a reputed school of Delhi, would have also been benefited by the implementation of 7th Pay Commission and other such benefits, which had been implemented with effect from 01.01.2016. He had relied upon the following documents in support of his evidence:-
a. Photo copy of his Aadhar Card Ex.PW7/1 (objected to mode of proof).
b. Photo copy of his hostel identity card Ex.PW7/2.
c. Photo copy of Aadhar cards of Sh. J.P. Khosla and Smt. Uma Khosla,
his grand parents Ex.PW7/3 (colly).
11.23 In his cross-examination by Sh. Navdeep Singh, learned counsel for the insurance co./R3, PW7 stated that he was not an eye witness of the case accident and as such he expressed his inability to tell anything about the manner in which the case accident had taken place. He admitted that his father was maintaining bank account and his father's salary used to be credited in the said bank account. He also admitted that he had not filed any statement of account pertaining to the bank account of his father. He denied the suggestion that he had deliberately not filed the said statement of account as the salary which was being credited in his father's bank account was much less than the salary which had been shown by his deceased father in his income tax returns. He admitted that his mother was maintaining a bank account and her salary used to be credited in the said bank account. He also admitted that he had not filed any statement of account pertaining to the LRs of Prabha Trehan Vs. Major Singh & Ors. Page 38 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 39 of90 bank account of his mother. He denied the suggestion that he had deliberately not filed the said statement of account as the salary which was being credited in the account of his deceased mother was much less than the salary which had been shown in the income tax returns of his mother. He voluntarily stated that the benefits of 7th Pay Commission had been credited in the respective accounts of his father and mother. He admitted that he had not filed any document in this regard. He further stated that he was not aware as to what documents were attached with the income tax returns. He admitted that the income tax returns which had been filed on record were single page returns without any computation. He voluntarily stated that the entire record pertaining to the income tax etc. had been submitted by the concerned department during their examination. He further stated that he was not aware as to what record had been submitted by the concerned department during their examination. He, however, expressed his ability to identify the same from the record, if shown to him. He stated that he was aware of the fact that the income tax return was to be filed by the individual and not by the employer. He further stated that his grand father had retired from government job and he was getting pension. He denied the suggestion that his parents used to spend substantial amount on their own subsistence.
He admitted that he was not in possession of any document regarding the terms of employment of his parents with their respective employers. He denied the suggestion that he had filed false affidavit. He further denied the suggestion that he was deposing falsely regarding the income, profession of his parents.
11.24 None had appeared on behalf of R1 and R2 to cross-examine PW7 LRs of Prabha Trehan Vs. Major Singh & Ors. Page 39 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 40 of90 and therefore the cross-examination of PW7 on behalf of R1 and R2 was treated as nil despite opportunity having been given to R1 and R2 to cross- examine PW7.
11.25 IO ASI Charanjit Singh, No.245/Khanna, ICPP Hedon, PS Samrala, Police District Khanna had been examined as PW8, who was a summoned witness. He deposed that he was the investigating officer of FIR No. 133/16 PS Doraha, District Khanna. He further deposed that on 05.09.2016, on receipt of an information to the effect that an accident had taken place near Kadon Chowk Bridge, G.T. Road, District Khanna, he along with police party reached at the spot, where they had noticed that a truck was standing in the middle of the road and a car bearing registration No. DL12-C-2569 had struck against the back portion of the said truck. He further deposed that two persons in the car had already expired at the spot and a lot of public persons had gathered at the spot. He also deposed that one child, namely, Himang was also the occupant of the car and two other seriously injured persons were also the occupants of the said car. He deposed that they had shifted the two seriously injured persons to hospital with the help of public persons, however, subsequently, these injured persons had also expired. He further deposed that child Himang was also seriously injured in the accident, however, he was shifted by the Civil Hospital, Khanna to Apollo Hospital, Ludhiana. He further deposed that as per his investigation, the driver of the said truck was negligent which led to the accident as the driver of the offending truck had stopped the same in the middle of the road due to which the car of the victims had banged into the rear portion of the truck. He also deposed that FIR was registered against the driver of the offending truck and LRs of Prabha Trehan Vs. Major Singh & Ors. Page 40 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 41 of90 a charge sheet was also filed against him. He further deposed that the site plan Ex.PW5/2 was prepared by him, which contained his signatures at point X. He deposed that he had recorded the statement of eye witness Mr. Manoj Kumar Puri which was on record, already Ex.PW5/10. He further deposed that the copy of criminal case record was already on record. He also deposed that as the accident had occurred in the middle of the road, hence, there was difficulty in movement of traffic, hence, with the help of a private crane, he got shifted the vehicles involved in the case accident to the left side of the road to ease the vehicular movement on the road. He further deposed that there was no pressure upon the police at the time of registration of the FIR and the investigation was done impartially. 11.26 In his cross-examination by Sh. Navdeep Singh, learned counsel for the insurance co./R3, PW8 stated that he was on patrolling duty with his team of other police officials when they had received the information regarding the case accident. He stated that eye witness Manoj Puri had got recorded his statement at the relevant time at Doraha. He further stated that the distance between the place of accident and the place where the statement of Mr. Manoj Puri was recorded was about 600-700 yards. He further stated that the police station was inside the town and was at a distance of about 1- 1½ Kms from the place of accident. He deposed that the necessary entry was made by them in the police station while leaving the police station for patrolling duty. He also stated that some public person had also called at PS to intimate regarding the accident. He further deposed that the statement of Mr. Manoj Puri was recorded at about 12:50 pm. He stated that they reached at the spot of accident at about 7:30 am. He further stated that LRs of Prabha Trehan Vs. Major Singh & Ors. Page 41 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 42 of90 besides Manoj Puri there were about 100-150 public persons at the spot and the said public persons were busy in rescue work. He expressed in inability to recall if he had recorded the statement of any public person as eye witness apart from Mr. Manoj Puri. He stated that the statements U/s 161 Cr.PC were recorded at the spot. He further stated that he had recorded two statements of Mr. Manoj Puri including first statement on which the case FIR was registered and thereafter second statement of Manoj Puri U/s 161 Cr. PC was recorded by him at the spot after the registration of the case FIR. He clarified that no statement of Mr. Manoj Puri was ever recorded in this case in the PS. He stated that Mr. Hardam Singh was an ASI with Punjab Police and Mr. Navjit Singh was a constable with Punjab Police. He also stated that after reaching the spot, first of all they took care of the dead and the injured persons and thereafter statement of Mr. Manoj Puri was recorded by him near the spot of accident for registration of the case FIR before preparing inquest report and getting the postmortem conducted on the bodies of the deceased persons. He further stated that the photographs of the spot were got clicked and site plan was also prepared by him at the spot of accident. He expressed his inability to remember the time when the photographs of the spot were got clicked. He, however, clarified that the photographs were taken after the accident. He proved the said photographs on court record as Ex.PW5/R3W1/3 to Ex.PW5/R3W1/6 and clarified that no other photographs of the spot were taken apart from photographs already proved on court record as Ex.PW5/R3W1/3 to Ex.PW5/R3W1/6. He also expressed his inability to say if the photograph Ex.PW5/R3W1/7 pertained to the spot or not. He further stated that the photographs which were clicked LRs of Prabha Trehan Vs. Major Singh & Ors. Page 42 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 43 of90 were already on record and hence he could not say if there was any photograph to show that the accident had occurred in the middle of the road or not. He voluntarily stated that as there was difficulty in movement of the traffic as the accident had occurred in the middle of the road, hence with the help of a private crane the vehicles involved in the case accident were shifted to the left side of the road. He further stated that the fact of shifting of vehicles to the left side of the road after the accident was mentioned in the charge sheet, however, after perusal of the record he deposed that the complete charge sheet was not on record.
11.27 He had produced the complete police file which was proved on record Ex.PW8/1A. He stated that the statements of ASI Hardam Singh and Ct. Navjeet Singh were recorded on the place of occurrence of the case accident. He expressed his inability to recall the weight loading capacity of the crane which had been called at the spot of accident. He further stated that the said crane was having a single pulley and was a private crane. He also stated that the owner of the crane had not asked for any expenses after seeing the plight of the victims in the accident and the owner of the crane generally used to help in case the crane was required in other road side accident cases as well. He also stated that the owner of the crane sometimes used to charge the fees for the services of the crane depending on the circumstances in which an accident had occurred. He further stated that the charges of the cranes were sometimes borne by the IO, sometimes by the parties and sometimes by the department. In response to a court question regarding mentioning in the charge sheet of the factum of use of crane for moving of vehicles to the side of the road to clear obstruction to traffic on account of occurrence of the LRs of Prabha Trehan Vs. Major Singh & Ors. Page 43 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 44 of90 case accident in the middle of the road, PW8 clarified that the said fact was nowhere mentioned in the charge sheet brought by him to the court at the time of recording of his further deposition on 19.10.2019. 11.28 PW8 admitted that the steps taken during the course of investigation were recorded in the case diary as per the sequence. He stated that he had sent across the statement of Manoj Puri after about 1½ hours to the concerned PS for registration of the case FIR. He further stated that he had recorded the statement of Manoj Puri at the place where Manoj Puri had first met him and had informed him about the case accident. He stated that he had recorded the statement of Manoj Puri at 12:50 pm. He denied the suggestion that he had not visited the spot of accident prior to 12:50 pm. He expressed his inability to recall the exact time when they reached at the spot of accident and they did not find Manoj Puri at the spot. He further expressed his inability to recall the exact time at which they had first met Manoj Puri. He stated that they had stayed at the spot for about 4-5 hours during which they had shifted the vehicles to the side of the road to open the traffic, shifted the injured persons and bodies of deceased persons to the hospital, recorded the statements, prepared the site plan and complete other written work. On being asked about the place where he had recorded the statement of Manoj Puri at 12:50 pm, PW8 refreshed his memory and thereafter clarified that he had recorded the statement of Manoj Puri on an overbridge of Kadon Village on National Highway. He stated that Mr. Manoj Puri had met them even prior to 12:50 pm, however his statement was recorded at 12:50 pm and time was put on the statement. On being asked about the fact that a contradictory statement had been made by Manoj LRs of Prabha Trehan Vs. Major Singh & Ors. Page 44 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 45 of90 Puri regarding recording of his complaining statement by PW8 at the concerned PS at 10:00 am whereas he himself had stated that he had recorded the statement of Manoj Puri at the over bridge of Kadon Village on National Highway at 12:50 pm, PW8 clarified that his statement was correct and he was not in a position to comment upon the version of complainant Manoj Puri regarding recording of his statement at the concerned PS. He further stated that the FIR was recorded at 2:30 pm. PW8 admitted that he was not present at PS Doraha at 10:00 am on 05.09.2016 and even the entire investigating team of the said case was not present at said PS at that time. He also stated that as per jimni filed on record beginning from page No. 60 onward of Ex.PW8/1A, he had firstly recorded the statement of Manoj Puri after about 12:50 pm. He stated that after recording the statement of Manoj Puri they had reached at the spot for the first time where he had recorded the names of various persons which have been mentioned from serial No. 1 to 10 and thereafter, he had called the owner of Rikhi Studio, Doraha from his own mobile to visit the spot and take the photographs. He deposed that he had conducted inquiries from the people who had gathered at the spot about the manner of occurrence of the case accident and thereafter, the injured and dead persons were taken out and shifted to hospital and mortuary. He further stated that the photographer had reached at the spot and had clicked (taken) the photographs of the accidental vehicles and thereafter, he had called the crane operator, who had separated the two vehicles and had taken out the dead persons who were struck up in the rear seat of the car. He admitted that the weather was fine and there was no fog on the date of accident. He also admitted that from the top of bridge at Kadon Village on the National LRs of Prabha Trehan Vs. Major Singh & Ors. Page 45 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 46 of90 Highway, the underneath road was clearly visible. He admitted that as per the mechanical inspection report the offending truck was mechanically fit for running. He also admitted that the said truck was brought to the PS after the accident by driving it. He stated that there were skid marks of the car on the road at the place of accident. He stated that no such photograph was taken which would show that there was traffic jam at the spot of accident after the accident. He denied the suggestion that there was no traffic jam at the spot of accident as the accident had taken place on the extreme left side of the road or that the accident had taken place due to the negligence of the driver of the car of the victims. He stated that there was a divider on the road where the accident had taken place and one side of that road was a three lane highway. He further stated that the vehicles were separated by the crane in the middle of the road. Again said, the vehicles were lifted by crane to the side of the road and were separated at the side of the road. He denied the suggestion that two hooks of a crane were required to lift two vehicles simultaneously which were co-joint with each other. He voluntarily stated that the crane which was used in this case was having one hook. He further stated that there was no photograph on the record to show that the case accident had taken place in the middle of the road. He voluntarily stated that no such photograph was taken as to open the traffic, the vehicles were first shifted to the side of the road. He denied the suggestion that the evidence as deposed by him above to the effect that the vehicles in accidental condition were first shifted to the left side of the road by the crane was wrong as the photographer first had come at the spot of accident or that the said photographer should have taken the photographs of the vehicles in the LRs of Prabha Trehan Vs. Major Singh & Ors. Page 46 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 47 of90 middle of the road if the accident had taken in the middle of the road. He further denied the suggestion that the entire case was made by him while sitting in the PS to help the petitioners. He further denied the suggestion that the case accident had occurred solely due to the rashness and negligence of the driver of the car or that there was no negligence on the part of the driver of the alleged offending truck. He admitted that he did not make any effort to take out the record from Toll Plaza to show the movement of both the vehicles. He denied the suggestion that Major Singh/R1/driver of the offending truck also gave him the record of the toll bridge to show that Manoj Puri was never present at the spot of accident but he had not cared to investigate the matter from that angle. He denied the suggestion that as per the rule of investigation he should have taken the photographs of the accidental vehicles in the position in which the said vehicles had collided with each other at the time of accident before shifting them to the side of the road or that he had failed in doing proper investigation of the case. He further denied the suggestion that the photographs on record were depicting the actual state of occurrence of the accident. He admitted that the photographs were showing the vehicles involved in the case accident. He stated that the vehicles were shifted towards the left side of the road in the first 1½ hours as mentioned above and thereafter they had gone to the hospital.
11.29 In his cross-examination by Sh. Sujit Jaiswal, learned counsel for Bharti AXA GIC Ltd./R4, PW8 admitted that as per his investigation the case accident had occurred due to sole negligence of the driver of the offending truck as he had wrongly parked the offending truck in the middle LRs of Prabha Trehan Vs. Major Singh & Ors. Page 47 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 48 of90 of the road. He also admitted that therefore driver of the truck had been charge sheeted by him.
11.30 Sh. Navneet Goel, learned counsel for R1 had adopted the cross- examination of PW8 as already conducted on behalf of the insurance company/R3 vide order dated 29.07.2021.
11.31 None had appeared on behalf of R2 or cross-examining PW8 and therefore as such cross-examination of PW8 on behalf of R2 was treated as nil despite opportunity having been given to R2 to cross-examine PW8. 11.32 R1/driver of the offending vehicle had examined himself as R1W1 in support of his version of the case. He had tendered his evidence by way of affidavit as Ex.R1W1/A stating therein that he was the driver of the vehicle bearing registration No.UP15-AT-8825 and on 05.09.2016, there was no negligence on his part as he was driving his vehicle on the correct side of the road at a normal speed of 40 Kmph. He also deposed that on the contrary, the vehicle bearing registration No.DL12-CH-2569 had come at a very fast speed from behind in the wrong lane and hit his vehicle from the back side and this fact had been duly established through the photographs of the spot taken at the instance of the IO. He further deposed that as per the own/admitted case of the petitioners on 04.09.2016, deceased persons, namely, Smt. Sapna Khosla, Rahul Khosla, Chhavineet Trehan, Ritu Trehan and Hemang Trehan had gone to attend the marriage of a relative at Jalandhar, Punjab and they had not taken any sleep during the whole night on account of having remained busy in the marriage ceremony. He further deposed that in the wee hours of the day on 05.09.2016, the deceased persons had taken the meal before leaving for Delhi by Car bearing LRs of Prabha Trehan Vs. Major Singh & Ors. Page 48 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 49 of90 registration No. DL12-CH-2569 which was being driven by Sh. Chhavineet Trehan and when the said car had reached at G.T.K. Road, Doraha, Punjab at about 7:00 am, it was broad day light as the Sun had already arisen at 6:01 am. He stated that deceased Chhavineet Trehan had taken his meal in wee hours of the day and therefore, he had doused and this fact had been established from the postmortem report of Chhavineet Trehan, wherein it had been mentioned that semi digested food was found present in his stomach.
11.33 R1W1 had further deposed that as per medical science, food consumed by a person stand digested within three hours from its consumption and thereafter the same gets pushed into intestines of the person concerned and therefore, the presence of semi digested food in stomach of Chhavineet Trehan established that he had taken his his meal in wee hours before leaving Jalandhar, Punjab for inward journey to Delhi. He further deposed that with the process of digestion of food, sleep might have over powered brain of Chhavineet Trehan, who must have felt dizzy while driving his car. He stated that the Tata Tempo bearing registration No.UP15- AT-8825 was being driven by himself (R1) at a speed of 40 Kmph on the left side of the road whereas the vehicle of the deceased had come at a very fast speed from behind and had hit his Tata Tempo from its back side. He deposed that the mechanical inspection report of Tata Tempo/offending vehicle bearing registration No.UP15-AT-8825 conducted by Lakhbir Singh, Head Constable of PS Doraha, Punjab contained a finding to the effect that high light, parking light, indicator, horn etc. of the said vehicle were in order whereas its rear bumper and right side of its iron grill was totally damaged.
LRs of Prabha Trehan Vs. Major Singh & Ors. Page 49 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 50 of90 He further deposed that there were three dents of the rear body and four bolts from rear cammanies (suspension plates) on right side were found broken from the chassis of the alleged offending tempo, which fact establishes that the vehicle being driven by Sh. Chhavineet Trehan had hit his Tata Tempo from its back and had gone underneath it. He further deposed that the mechanical inspection report of car of the deceased, bearing registration No.DL12-CH-2569, conducted by Lakhvinder Singh Head Constable, Doraha, Punjab contained a finding to the effect that the high lights, front bumper, horn, head lights, all windows, dash board, radiator, A.C. cables and all seats of the car as well as its engine had been extensively damaged and the car had become unfit for road use. He further deposed that above narrated facts regarding the damage sustained by the car of the victims corroborated his version to the effect that the car was driven at a very high speed by Chhavineet Trehan, who had dosed off before hitting his car against the alleged offending Tempo which was moving at a normal speed and due to forceful impact, the car of the victims had gone underneath his Tata Tempo from behind. He asserted that as per the site plan prepared in case FIR No. 133/2016, registered at PS Doraha Ludhiana, Punjab, there were no skid marks on the road and this fact makes its crystal clear that Chhavineet Trehan had not applied brakes at all, when he had noticed the Tata Tempo moving ahead of him and he had not even tried to overtake Tata Tempo from its right side, which fact was abundant (clear) from mechanical inspection report of both vehicles. He testified that absence of skid marks on the road negates application of brakes by deceased Chhavineet Trehan and therefore, it can be safely concluded from a perusal of mechanical inspection LRs of Prabha Trehan Vs. Major Singh & Ors. Page 50 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 51 of90 report that the vehicle being driven by the deceased Chhavineet Trehan was running at a very high speed whereas his own Tata Tempo was moving on the road within permissible speed limits, wherefrom, the theory that the offending vehicle was stationed on the road stands demolished on account of the fact that the offending vehicle had sustained damages on its back side which were in between the rear wheels whereas if the offending vehicle had been stationed, then it would have moved to either of the directions on being hit from back side and the car being driven by the deceased Chhavineet Trehan would not have gone underneath his Tata tempo. He further deposed that these facts, which were emerging out of the site plan, mechanical inspection report and post mortem report of deceased Chhavineet Trehan had established that it was none other than deceased whose fault had led to the case accident in which four victims had lost their lives. He deposed that the police had in a manipulated manner recorded the FIR on the statement of Manoj Kumar Puri who was not an eye witness to the occurrence of the case accident and had reached the spot much after the accident which fact stood proved from the record which had been obtained from the Toll Naka, Ladhowal, Punjab already Ex.R1W1/1, including photograph of the vehicle which was being driven by Sh. Manoj Kumar Puri alleged eye witness as well as the record pertaining to the time at which said Manoj Kumar Puri had crossed the toll bridge.
11.34 In his cross-examination by S.K. Maurya, learned counsel for petitioners, R1W1 stated that the accident occurred on 05.09.2016. He admitted that the car bearing registration No.DL12-CH-2569 and his truck no. UP15-AT-8825 were being driven and moving in the same direction at LRs of Prabha Trehan Vs. Major Singh & Ors. Page 51 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 52 of90 the time of accident. He stated that he had deposed in his affidavit that the said car was being driven at a very fast speed as his vehicle had sustained a strong impact at the time of accident due to which his head had banged in the front wind screen of his truck, however, neither front wind screen of his truck had got damaged due to the impact nor he had received any palpable injury as he was wearing a turban. He further stated that he was driving his truck at the extreme left lane of the road and the car which was at a high speed, should have been driven on the extreme right side of the road meant for fast traffic, however, the said car was also being driven on the extreme left lane of the road and therefore as such he had deposed in his affidavit that the car was being driven in a wrong lane. He stated that he had studied upto 5th passed.
11.35 At that stage, the learned counsel for the petitioner had shown site plan Ex.PW5/2 (in Punjabi) and it English translation to the witness and had asked him as to whether point A shown in the site plan Ex.PW5/2 was the place on road where the accident had taken place and had suggested to the witness that the point A was not on the extreme left lane of the road. In response to the said question, the witness stated that the said site plan has been wrongly prepared by the police. He deposed that the police officials had informed him that they were under pressure from the higher authorities. 11.36 He denied the suggestion that the photographs Ex.PW5/R3W1 to Ex.PW5/R3W7 were the photographs which had been taken after the vehicles had been removed from the spot of accident to clear the road for the traffic it being a National Highway. He stated that the accident had occurred on a bridge when the said bridge was about 5 meters still left to be crossed, LRs of Prabha Trehan Vs. Major Singh & Ors. Page 52 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 53 of90 that is, about at the end of the bridge. He further stated that immediately after the accident, he had come out of his truck and had noticed that a car was struck in the back portion of his truck and there were two persons sitting on the front seats of the car whereas there were three persons including a minor child sitting on the rear seat of the car. He deposed that he had brought a rod from the truck, pushed open the rear left gate of the car and took out the child and one lady who was sitting on the left side of the car as they were still breathing but were unconscious at that time. He stated that he had gone to the police station on 08.09.2016 or 09.09.2016 and thereafter, he was arrested by the police. He further stated that after taking out the said lady and child from the car, he had noticed that public persons had gathered at the spot and thereafter, he had fled away from the spot with the file (documents) of the truck. He admitted that he was not aware about the medical language and terminology or that the first 8 lines of paragraph no.2 of his affidavit Ex.R1W1/A were based on hearsay facts. He admitted that he was not wearing a watch at the time of accident. He stated that at the time when he was taking out the injured lady and child from their car, he had asked the public persons about the time and as such he had come to know that the accident had occurred at about 7:00 am. He admitted that he had no personal knowledge of the fact that Mr. Chhavineet Trehan had consumed his meals in the wee hours of the day of accident or that therefore, said Chhavineet Trehan had dozed off due to it. He denied the suggestion that the offending truck was not being driven at the speed of 40 Kms per hour or that said truck was in stationary condition at the time of accident. He further stated that the fact mentioned in the site plan Ex.PW5/2 to the LRs of Prabha Trehan Vs. Major Singh & Ors. Page 53 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 54 of90 effect that the offending vehicle was stationary and was parked in the middle of the G.T.K. Road without indicator or parking lights at the time of accident was not correct. He denied the suggestion that there were skid marks of the car at the spot of the accident or that Chavineet Trehan had applied brakes to divert the accident. He denied the suggestion that the case accident had occurred solely due to his wrong parking of his truck in the middle of the road or that there was no negligence on the part of Chavineet Trehan while driving the said car.
11.37 None had appeared on behalf of R2 to cross-examine R1W1 and therefore, as such the cross-examination of R1W1 was treated as nil on behalf of R2 despite opportunity having been given to R2 for cross- examining the said witness.
11.38 In the cross-examination by Sh. Navdeep Singh, learned counsel for R3, R1W1 stated that the accident had occurred due to fault of the driver of the car.
11.39 Sh. S.K. Bhati, learned proxy counsel for Sh. Vikas Lakra, learned counsel for R4 had not availed the opportunity given to him by the court to cross-examine R1W1.
11.40 R3W1 Sh. Suresh Kumar, Executive Store, Gharonda Toll Plaza, Haryana had produced the summoned record, that is, data relating to crossing of the toll bridge at Ladowal, Toll Plaza on 05.09.2016 in respect of vehicles bearing registration Nos.UP15-AT-8825, DL11-CA-7117 & DL12- CH-2569 and deposed that as per the record, the vehicle bearing registration No. UP15-AT-8825 had crossed Ladowal Toll bridge on 05.09.2016 at 5:58 am. He further deposed that the vehicle bearing registration No. DL11-CA-
LRs of Prabha Trehan Vs. Major Singh & Ors. Page 54 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 55 of90 7117 had crossed the toll bridge of Ladowal on 05.09.2016 at 09:04:04 am. He also stated that as per their record, the vehicle bearing registration No.DL12-CH-2569 had not crossed Ladowal Toll plaza on 05.09.2016 from 00 hours till 23:59 hours. He proved the downloaded copy of the record as maintained in the office of Panipat, Jalandhar NH-1 Tollway Pvt. Ltd. on court record as collectively Ex.R3W1/1. He further deposed that the National Highway Authority of India had also forwarded the same record to the Court vide letter dt. 14.05.2018 showing the time of crossing of Ladowal Toll Plaza by Ex.R3W1/2 (colly), which was running into seven pages. He had seen Ex.R1W1/1 (colly) which contained the stamp of their Plaza Manager Tollway, Ladowal.
11.41 In his cross-examination by Sh. S.K. Maurya, learned counsel for the petitioners, R3W1 admitted that Ex.R3W1/1 were the only photocopies. He further admitted that the CCTV footage of vehicles was generally only available for a period of 30 days as mentioned in Ex.R3W1/2. He stated that the document Ex.R3W1/1 was only a traffic transaction report and was not a CCTV footage. He denied the suggestion that the document Ex.R3W1/1 (colly) was not a reliable document. He admitted that document Ex.R1W1/1 (colly) was not signed on each and every page and contained the signatures only on the fifth page. He denied the suggestion that he was deposing falsely or that the entire record produced by him was not reliable. 11.42 In his cross-examination by Sh. Navneet Goyal, learned counsel for R1, R3W1 stated that the record Ex.R3W1/1 was a computer print and not a photocopy and the entire record used to remain saved in the computers in their office. He further stated that the computers of their office were LRs of Prabha Trehan Vs. Major Singh & Ors. Page 55 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 56 of90 accessible to the concerned plaza officials only and the record cannot be manipulated.
11.43 None had appeared on behalf of R2 to cross-examine R3W1 and therefore, as such the cross-examination of R3W1 was treated as nil on behalf of R2 despite opportunity having been given to R2 for cross- examining the said witness.
11.44 Sh. S.K. Bhati, learned proxy counsel for Sh. Vikas Lakra, learned counsel for R4 had not availed the opportunity given to him by the court to cross-examine R3W1.
12. No contradictions or material discrepancies have appeared in the cross examination of PW5 to discredit his above said testimony which were capable of demolishing the case of the petitioners to the effect that the case accident had occurred due to rash and negligent driving of the offending vehicle by R1 and the death of victim Chhavineet Trehan had occasioned therefrom. PW5 has withstood his cross-examination by learned counsel for all respondents. However, learned counsels for respondents have disputed the presence of PW5 at the spot of accident on account of the fact that the vehicle of alleged eye witness PW5 Manoj Kumar Puri has crossed the toll plaza of Ladowal situated on the way from Jalandhar to Doraha Punjab at a distance of about 33 km prior to the spot of accident at 9.04 am whereas the alleged accident had already taken place at about 7.00 am at Mallipur Bridge, Doraha, Punjab. Thus, it is a defence of the New India Assurance Company that eye witness Manoj Kumar Puri had been planted in the present matter by the IO to fill up the lacuna of the case of the petitioners and as such, from the record of toll plaza, Ladowal it had been proved that LRs of Prabha Trehan Vs. Major Singh & Ors. Page 56 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 57 of90 nearly after 2 hours of occurrence of the case accident, the vehicle of eye witness Sh. Manoj Kumar Puri was still at a distance of 33 km prior to the spot of accident between Jalandhar and Doraha.
12.1 I have considered the above defence of learned counsel for R3 in the light of entire evidence led by the parties in support of their respective version of the case. In this context, R3 New India Assurance Company Ltd. had examined one witness R3W1 Sh. Suresh Kumar, Executive Store, Gharonda Toll Plaza, Haryana, who had produced the record pertaining to crossing of Ladowal Toll Plaza by three vehicles including the offending truck, the car of victims and the car of eye witness Manoj Kumar Puri as on the date of occurrence of the case accident. A perusal of said record Ex.R3W1/1 reveals that the offending truck had crossed Ladowal toll plaza at about 5.58 am whereas the car of eye witness Manoj Kumar Puri had crossed the toll plaza at 9.04 am and on the other hand, the car of the victims had never crossed the toll plaza of Ladowal on 05.09.2016. However, it is an undisputed fact that the case accident had taken place at 7.00 am at Mallipur Bridge Doraha although the car of the victims may not have reached the spot via Ladowal toll plaza or may not have actually paid the toll at Ladowal Toll Plaza thereby creating anomaly to the effect that the said vehicle of victims had no entry in the records of the toll plaza of Ladowal leading to the place of accident. Nevertheless, the factum of accident has not been disputed by any of the respondents and only the manner of accident as well as the presence of eye witness at the spot of accident is in dispute.
12.2 There is a possibility that the vehicle of the victims had reached the LRs of Prabha Trehan Vs. Major Singh & Ors. Page 57 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 58 of90 spot of occurrence from some other road and had not crossed the Toll Plaza of Ladowal at all or probably no toll was paid by the vehicle of the victims due to some exemption available to the said vehicles under the relevant rules and regulations. Thus, the witness summoned by the insurance company R3W1 Sh. Suresh Kumar was unable to produce any record of the timings at which the vehicle of the victims.
12.3 However, the presence of eye witness at the spot of accident is in doubt due to the fact that vehicle of eye witness Manoj Kumar Puri had crossed the Toll Plaza of Ladowal situated at a distance of 33 Km prior to spot of accident at Doraha on the way from Jalandhar to Delhi at about 9:04 am, that is, two hours after the occurrence of the case accident. In such circumstances, one cannot absolutely rely upon the statement of the eye witness regarding the manner of the occurrence of the case accident as his presence at the spot of occurrence is doubtful. In this regard, it is pertinent to mention that the requirement of eye witness in the present matter was only in respect of establishing the manner of the occurrence of the case accident because of the factum of the occurrence of the accident itself and the identity of the two vehicle involved in the case accident are not in dispute. As regards the manner of occurrence of case accident, it is defence of R1 and R3 that the accident had occurred due to negligence of victim Chhavineet Trehan himself who was driving his vehicle at a very high speed and had probably dozed of or slept while driving his vehicle due to which the said vehicle had collided against the back side of Tata Tempo being driven by R1 at a slow speed perhaps 40 kmph. However, the theory propounded in defence of R1 and R3 to the effect that victim Chhavineet LRs of Prabha Trehan Vs. Major Singh & Ors. Page 58 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 59 of90 Trehan had dozed off while driving the vehicle is based on conjectures and surmises and has no scientific basis as there is no eye witness account (version) of case accident which can establish that in fact, victim Chhavineet Trehan had fell asleep while driving his vehicle. Neither any person present at the spot nor any person travelling inside the vehicle of the victims has unfortunately stepped into the witness box. None of the persons on board the vehicle of the victims except minor child Hemang Trehan had survived to tell as to whether victim Chhavineet Trehan had fell asleep while driving his car or not. Also, the sole surviving minor child, namely, Hemang Trehan has never stepped into the witness box. Even otherwise, he was sitting on the rear seat of the car of the victims and therefore he could not have seen as to whether his father Chhavineet Trehan was awake or had fell asleep while driving their car. Therefore, there is no merit in defence of R1 and R3 to the effect that victims Chhavineet Trehan has dozed off or fell asleep while driving his car.
12.4 Moreover, it is another defence of respondents that the offending tempo was not stationary at the time of occurrence of the case accident and was rather being driven by R1 at a normal speed of 40kmph. However, by the nature of impact and extensive damage sustained by the car of the victims, it prima facie appears that the car in question had struck against the back side of the stationary tempo with great force and thereby going underneath the said tempo. If the offending tempo was in a moving stage, then after colliding against his back side, the car of the victims would perhaps have overturned or stopped at the spot and would not have gone underneath a moving tempo to such an extent that its front bonnet and front LRs of Prabha Trehan Vs. Major Singh & Ors. Page 59 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 60 of90 seat would get completely crushed as is evident from photographs Ex.PW5/R3W1/1 to 7. As such from the discussion hereinabove, it can be safely concluded that there is no merits in second defence of R1 and R3 to the effect that the offending tata tempo was not stationary and was rather moving at a speed of 40kmph at the time of occurrence of the case accident. 12.5 It is the last defence of R1 and R3 that the accident in question had occurred due to contributory negligence of victim Chhavineet Trehan who was driving his vehicle in a rash and negligent manner at a very high speed and had failed to control his vehicle while descending down a flyover at Mallipur Doraha due to which the case accident had occurred. 12.6 I have examined the above defence of the respondents nos.1 and 3 in the light of facts proved on record through testimonies of witnesses as well as in the light of law of precedents pertaining to doctrine of res ipsa loquitor whereby the manner of accident can be deciphered from the condition of vehicle involved in the accident in question as well as nature of injuries sustained by the victims. In the absence of reliable eye witness account, due to aspersions cast upon the presence of alleged eye witness Manoj Kumar Puri at the spot of occurrence at the time of accident, one has to examine the nature and extent of damages suffered by the two vehicles involved in the case accident due to impact of collision of the said vehicle against each other as well as the nature of injuries suffered by the victims travelling in the said vehicles as envisaged in the doctrine of her "ipsa loquitor". 12.7 In this context, a perusal of court record reveals that from photographs Ex.PW5/R3W1/1 to 7, it appears that after hitting against the offending tempo from behind, the car of the victims had gone underneath the LRs of Prabha Trehan Vs. Major Singh & Ors. Page 60 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 61 of90 said tempo to such an extent that its bonnet and front seat had got completely crushed. The extent of damage suffered by the vehicle of the victims, prima facie, establishes that not only was the offending tempo lying stationed at the spot of occurrence without its parking lights being turned on or any other indicator pointing to its presence at the spot in stationary state but even the car of the victims was being driven at a high speed and had, therefore, suffered a quite a forceful impact on account of which the body of the said car had got completely crushed after going underneath the body of the offending tempo. Thus, despite non availability of reliable eye witness, there is enough circumstantial evidence available on record in the form of photographs of the two vehicles involved in the case accident showing extent of damage suffered by the vehicle of the victims as well as MLCs and postmortem reports of the victims which establish that three out of five victims had expired at the spot and the fourth victim Sapna Khosla had subsequently expired at IVY Hospital, Khanna, Punjab. 12.8 In this respect, it has been held by Hon'ble Apex Court in several decided cases that when there is no eye witness account of the accident available on Court record, then, the Court can also examine the nature of accident by relying upon the doctrine of 'res ipsa loquitur' which envisages that the accident speaks for itself and a Court can look into the extent of damage suffered by the vehicles involved in the accident as well as the nature of injuries suffered by the victims so as to ascertain the cause behind the accident and to arrive at a finding as to whether the accident in question had occurred due to negligence of the driver of the offending vehicle or not. 12.9 In a catena of judgments, the Hon'ble Apex court has held that in LRs of Prabha Trehan Vs. Major Singh & Ors. Page 61 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 62 of90 certain cases of accident, the principle of res ipsa loquitur is applicable and the condition of the vehicles involved in the accident as well as the injuries sustained by the victim speak for themselves. The Hon'ble Apex Court has time and again observed that in such cases, the negligence of a driver can be ascertained from the extent of damage suffered by the vehicle of the victims on account of collision.
12.10 Similar observations were made by Apex court in the case of Ravi Kapur vs State Of Rajasthan Criminal Appeal number1838 OF 2009 decided on 16 August, 2012 wherein the Hon'ble Apex Court had reiterated that the doctrine of res ipsa loquitur is applicable in cases wherein the accident in question speaks for itself and there are reasonable grounds to arrive at a finding that the accident could not have occurred without any negligence on the part of the driver of the offending vehicle. Relevant extract of observations made in para 13 of the judgement passed in this case are noteworthy in this context and are reproduced herein below: "13. The other principle that is pressed in aid by the courts in such cases is the doctrine of res ipsa loquitur. This doctrine serves two purposes - one that an accident may by its nature be more consistent with its being caused by negligence for which the opposite party is responsible than by any other causes and that in such a case, the mere fact of the accident is prima facie evidence of such negligence. Secondly, it is to avoid hardship in cases where the claimant is able to prove the accident but cannot prove how the accident occurred. The courts have also applied the principle of res ipsa loquitur in cases where no direct evidence was brought on record. The Act itself contains a provision which concerns with the consequences of driving dangerously alike the provision in the IPC that the vehicle is driven in a manner dangerous to public life. Where a person does such an offence he is punished as per the provisions of Section 184 of the Act. The courts have also taken the LRs of Prabha Trehan Vs. Major Singh & Ors. Page 62 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 63 of90 concept of 'culpable rashness' and 'culpable negligence' into consideration in cases of road accidents. 'Culpable rashness' is acting with the consciousness that mischievous and illegal consequences may follow but with the hope that they will not and often with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from acting despite consciousness (luxuria). 'Culpable negligence' is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him and that if he had, he would have had the consciousness. The imputability arises from the neglect of civic duty of circumspection. In such a case the mere fact of accident is prima facie evidence of such negligence. This maxim suggests that on the circumstances of a given case the res speaks and is eloquent because the facts stand unexplained, with the result that the natural and reasonable inference from the facts, not a conjectural inference, shows that the act is attributable to some person's negligent conduct. [Ref. Justice Rajesh Tandon's 'An Exhaustive Commentary on Motor Vehicles Act, 1988' (First Edition, 2010]."
12.11 In the case of Sayad Akbar vs. State of Karnataka 1980 SCR (1) 25, 1979 AIR 1848 decided on 25.07.1979, it was held by the Hon'ble Supreme Court of India that when an accident is of such a nature which could not have occurred without the negligence of the person having management or control over the offending vehicle, then, the doctrine of res ipsa loquitur can be invoked to arrive at a finding of negligence against the driver of the offending vehicle in the absence of other direct evidence pointing towards the guilt of the driver of the offending vehicle. Relevant extract of the observations made in the case of Sayad Akbar vs. State of Karnataka (supra) is reproduced herein below:
"As a rule, mere proof that an event has happened or an accident has occurred, the cause of which is unknown, is LRs of Prabha Trehan Vs. Major Singh & Ors. Page 63 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 64 of90 not evidence of negligence. But the peculiar circumstances constituting the event or accident, in a particular case, may themselves proclaim in concordant, clear and unambiguous voices the negligence of somebody as the cause of the event or accident. It is to such cases that the maxim res ipsa loquitur may apply, if the cause of the accident is unknown and no reasonable explanation as to the cause is coming forth from the defendant. To emphasise the point, it may be reiterated, that in such cases, the event or accident must be of a kind which does not happen in the ordinary course of things if those who have the management and control use due care. But, according to some decisions, satisfaction of this condition alone is not sufficient for res ipsa to come into play and it has to be further satisfied that the event which caused the accident was within the defendant's control. The reason for this second requirement is that where the defendant has control of the thing caused the injury, he is in a better position than the plaintiff to explain how the accident occurred. Instances of such special kind of accidents which "tell their own story" of being off-springs of negligence, are furnished by cases, such as where a motor vehicle mounts or projects over a pavement and hurts somebody there or travelling in the vehicle; one car ramming another from behind, or even a head-on-collision on the wrong side of the road. See per Lord Normand in Barkway v. South Wales Transport Co.(1); Cream v. Smith(2) and Richlev v. Fanll(3)."
12.12 Besides, the Hon'ble High Court of Delhi had also elaborately explained the doctrine of res ipsa loquitur and discussed its applicability in the cases of road traffic accident in the case of National Insurance Co. Ltd. vs Gita Bindal & Ors. MAC.APP.No.179/2004 and CM No.5285/2008 on 12 October, 2012 in following words:
"12. The principle of res ipsa loquitur laid down in the aforesaid LRs of Prabha Trehan Vs. Major Singh & Ors. Page 64 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 65 of90 four judgments is summarized as under:
i. Res ipsa loquitur means that the accident speaks for itself. In such cases, it is sufficient for the plaintiff to prove the accident and nothing more.
ii. Where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence in the absence of explanation by the defendants, that the accident arose from want of care.
iii. There are two requirements to attract res ipsa loquitur, (i) that the "thing" causing the damage be under the control of the defendant and (ii) that the accident must be such as would not in the ordinary course of things have happened without negligence.
iv. Res ipsa loquitur is an exception to the normal rule that mere happening of an accident is no evidence of negligence on the part of the driver. This maxim means the mere proof of accident raises the presumption of negligence unless rebutted by the wrongdoer.
v. In some cases considerable hardship is caused to the plaintiff as the true cause of the accident is not known to him, but is solely within the knowledge of the defendant who caused it, the plaintiff can prove the accident, but cannot prove how it happened to establish negligence. This hardship is to be avoided by applying the principle of res ipsa loquitur is that the accident speaks for itself or tells its own story.
There are cases in which the accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and nothing more.
vi. The effect of doctrine of 'res ipsa loquitur' is to shift the onus LRs of Prabha Trehan Vs. Major Singh & Ors. Page 65 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 66 of90 to the defendant in the sense that the doctrine continues to operate unless the defendant calls credible evidence which explains how the accident or mishap may have occurred without negligence, and it seems that the operation of the rule is not displaced merely by expert evidence showing, theoretically, possible ways in which the accident might have happened without the defendant's negligence. The doctrine of 'res ipsa loquitur', therefore, plays a very significant role in the law of tort and it is not the relic of the past, but the living force of the day in determining the tortuous liability.
vii. The principal function of the maxim is to prevent injustice which would result if a plaintiff were invariably compelled to prove the precise cause of the accident and the defendant responsible for it, even when the facts bearing in the matter are at the outset unknown to him and often within the knowledge of the defendant.
viii. The doctrine of res ipsa loquitur has been applied by the Courts in the following cases:-
➢ Where victim was sleeping on a cot placed in front of his house by the side of the road when the offending vehicle dashed against the cot and injured the claimant.
➢ Where a bus had dashed against a tree, causing death of a passenger.
➢ Where a vehicle negotiating a sharp "U" turn dashed against a tree, moved away to a distance of 150 feet from the road and then overturned.
➢ Where a vehicle went-off the road, hit against the tree and rolled down killing a passenger.
➢ Where a truck dashed against the victim standing by roadside.
➢ Where a truck came at breakneck speed without blowing horn and LRs of Prabha Trehan Vs. Major Singh & Ors. Page 66 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 67 of90 dashed against a 9 years old boy, who was walking on the extreme left side of the road, from behind resulting in instantaneous death."
13. In the present case, the deceased was travelling in car No. DL-8-CG 0794 being driven by Sumeet Sharma. The deceased was sitting on the rear seat. The car was in the exclusive control of its driver, Sumeet Sharma and the accident would not have happened in the ordinary course of events without the negligence of its driver. The deceased has not in any manner contributed to the accident. This case is squarely covered by the principle of res ipsa loquitor. The facts of this case raise a presumption of negligence which has not been rebutted by its driver. In the facts and circumstances of this case, it is held that the accident occurred due to rash and negligent driving of the offending car by its driver and the claim petition is treated under Section 166 of the Motor Vehicles Act. The contrary finding of the Claims Tribunal and conversion of the claim petition to Section 163 of Motor Vehicles Act is set aside."
12.13 In the light of afore cited opinion expressed by Hon'ble Supreme Court of India in the decided cases of Ravi Kapur vs State Of Rajasthan(supra) and Sayad Akbar vs. State of Karnataka(supra) as well as in the light of opinion expressed by Hon'ble High Court of Delhi in the decided cases of National Insurance Co. Ltd. vs Gita Bindal & Ors. (supra), it can be safely concluded that although in certain cases there may be no reliable eye witness available to depose on the factum of negligence of the driver of the offending vehicle, however, the accident speaks for itself and appears to have occurred in such a manner that it could not have happened except for the reason of negligence of the driver under whose management and care the vehicle was being plied on the road at the time of occurrence of the alleged accident.
12.14 In the present case also, the vehicle of the victims had got rammed LRs of Prabha Trehan Vs. Major Singh & Ors. Page 67 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 68 of90 into the back side of a Tata Tempo truck and had got damaged to such an extent that the front body of the car of the victims had gone underneath the offending tempo and bonnet as well as the steering wheel and front seats of the said car had got completely crushed whereas the back wind screen of the car in question had been completely damaged thereby exposing back seat due to the impact of collision as is reflected from the photographs Ex.PW5/R3W1/1 to 7. The condition of the vehicle of the victims is sufficient to establish that it had struck against a stationary vehicle and not rammed into a moving vehicle. Therefore, defence propounded by the respondent to the effect that the offending tempo was moving at speed of 40 kmph stands demolished from the fact that condition of the car of the victims is such that no prudent person would arrive at a finding to the effect that the said car had collided against a moving vehicle. Even if the car of the victims was descending from a flyover at a very high speed, then also the same would not have gone underneath the offending tempo and got completely crushed under its body if the said tempo was in moving condition. Moreover, from the condition of the vehicle of the victim, it can also be safely concluded that the same was being driven at such a high speed that its driver could not control the same upon noticing a stationary Tata Tempo while descending down a flyover. The extent of speed of the vehicle of the victim is evident from the fact that the car of the victims had not stopped after colliding against the offending tempo and had rather gone underneath its body thereby sustaining damage on its bonnet, front body, front seat and resulting in death of four out of five occupants of the said car. 12.15 In the light of my foregoing discussion, I am of the considered LRs of Prabha Trehan Vs. Major Singh & Ors. Page 68 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 69 of90 opinion that in the present case, victim Chhavineet Trehan was driving his car bearing registration No. DL12-CH-2569 which had got rammed into the back side of offending Tata Tempo bearing registration no.UP-15AT-8825 which was stationed on the same road without its parking lights being turned on or any other indicator pointing towards its presence on the road in stationary condition. From a mere look at the photographs of the vehicle of the victims, it is apparent that the said car of the victims had got badly damaged with its front body, front seat having been completely crushed underneath the offending tempo. The impact of collision with the tempo was such that the accident could not have occurred unless the offending vehicle was stationary and vehicle of the victims was also being driven at an excessive speed, in a rash and negligent manner. Besides, four out of the five occupants of the car of the victims had sustained fatal injuries in the case accident. Accordingly, from the condition of the two vehicles involved in the case accident as well as from the nature of injuries sustained by the victims, it can be safely concluded that the accident could not have occurred without negligence of drivers of both the vehicles, that is, negligent parking of the offending tempo by its driver and high speed driving of the car of victims by its driver-cum-victim Chhavineet Trehan. If the offending tempo was not present at the spot in stationary condition, the accident could have been easily averted. It is noteworthy that although while descending down a flyover, the speed of a vehicle generally increases. However, if the speed of car of victim was not unreasonably high, then the vehicle of the victims might have suffered a less severe impact and would not have atleast got completely crushed under the body of the offending tempo. In such LRs of Prabha Trehan Vs. Major Singh & Ors. Page 69 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 70 of90 circumstances, by relying upon the doctrine of res ipsa liquitor as discernible from the photographs of the two vehicles involved in the case accident, it can be safely inferred that the case accident had occurred due to negligence of both the vehicles involved in the case accident.
12.16 A similar situation has come up for consideration before the Hon'ble Supreme Court of India in the decided case of Raj Rani & Ors. Vs Oriental Insurance Co. Ltd & Ors., Civil Appeal No. 3317-3318 of 2009, date of decision 06.05.2009:IV(2009) ACC 910 (SC) wherein the vehicles of the victims had similarly dashed into the backside of a stationary offending truck, the Hon'ble Apex Court had observed that the accident had occurred due to 50% contributory negligence on the part of the victim who was driving his vehicle at an uncontrollably high speed. Thus the Hon'ble Apex had deducted 50% of the compensation amount awarded in the case towards contributory negligence of the victim.
12.17 The Hon'ble Supreme Court of India in the said case of Raj Rani (Supra), while discussing the issue of 'contributory negligence' inter alia held as follows:
"16. So far as the issue of "contributory negligence" is concerned, we may notice that the tribunal has deducted 1/3rd from the total compensation on the ground that deceased had contributed to the accident. The same, we find, has been upheld by the High Court. This court in Usha Rajkhowa and Ors. v. Paramount Industries and Ors. [ Civil Appeal No. 1088 of 2009(arising out of SLP(C) No. 16647 of 2008)] discussed the issue of contributory negligence noticing, inter alia, earlier decisions on the same topic. It was held that :
" 10. The question of contributory negligence on the part of the driver in case of collision was considered by this court in LRs of Prabha Trehan Vs. Major Singh & Ors. Page 70 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 71 of90 Pramodkumar Rasikbhai Jhaveri v. Karmasey Kunvargi Tak and Ors. reported in (2002) 6SCC 455. That was also a case of collision in between a Car and a truck. It was observed in Para 8:
' the question of contributory negligence arises when there has been some act or omission on the claimant's part, which has materially contributed to the damage caused, and is of such a nature that it may properly be described as 'negligence'. Negligence ordinarily means breach of a legal duty to care, but when used in the expression "contributory negligence", it does not mean breach of any duty. It only means the failure by a person to use reasonable care for the safety of either himself or his property, so that he becomes blameworthy in part as an author of his own wrong."
17. The principle of 50:50 in cases of contributory negligence has been discussed and applied in many cases before this court. In Sri Krishana Vishweshwar Hede v. The General Manager, K.S.R.T.C. (2008 ACJ 1617), this court upheld the judgment of the Tribunal assessing the ratio of liability at 50:50 in view of the fact that there was contributory negligence on the part of the appellant and fixed the responsibility of the accident in the ratio of 50:50 on the driver of the bus and the appellant. In this case, the truck was stationary. Some amount of negligence on the part of the deceased cannot be ruled out.
18. Hence in the insistant case, we find that there was contributory negligence on the part of the deceased and accordingly the claimant was entitled to only 50% of the total amount of loss of dependency."
12.18 The facts of the above cited case of Raj Rani (Supra) are squarely applicable on the facts of the present case. In the present case as well, the offending vehicle was parked on the main G.T. Karnal road after the descending slope of a flyover, that is, Mallipur Bridge, Doraha without its parking light being turned on or also without any other proper indication. However, in the present case, the negligence was more on part of the LRs of Prabha Trehan Vs. Major Singh & Ors. Page 71 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 72 of90 offending tempo and lesser on the part of victim Chhavineet Trehan as it was exceptionally wrong to park a vehicle as big as a Truck make Tata 1109 on a busy road such as G.T. Karnal Road and that too immediately after the descending slope a flyover. It is common knowledge that a vehicle descending a flyover tends to gain speed and there should be no obstruction at the end of descending slope of a flyover so that no high speed vehicle descending a flyover happens to collide with the obstructing object or vehicle lying near end of descending slope of a flyover.
12.19 In view of the above said discussion and law of precedents, this Tribunal is of the opinion that the accident in question had occurred due to rash and negligent and wrongful parking of the offending vehicle to the extent of 70% and the remaining contributory negligence of 30% can be attributed to the vehicle of the victims, that is, Maruti Celerio Car being driven by victim Chhavineet Trehan at a high speed. Thus, issue no.1 is decided accordingly by arriving at a finding that the accident in question had occurred due to 30% contributory negligence of the vehicle of the victims and 70% negligence of the offending vehicle being driven by R1.
13. Issue No. (2) Whether petitioners are entitled to compensation, if so, to what amount and from whom? OPP 13.1 In view of my findings on issue no.1 regarding negligence of R1 to the extent of 70% along with 30% contributory negligence on the part of victim Chhavineet Trehan resulting in the occurrence of the case accident, I am of the considered opinion that the petitioners/claimants are entitled to compensation in respect of demise of the victim Chhavineet Trehan in the LRs of Prabha Trehan Vs. Major Singh & Ors. Page 72 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 73 of90 above mentioned road traffic accident, I shall now examine the entire evidence including the documents of the petitioners/claimants for the purpose of arriving at a finding about the quantum of compensation to which the petitioners/claimants are entitled.
13.2 Petitioners have examined eight witnesses in support of their version of the case including PW-1 Vinod Badola who proved the employment and salary of deceased Chhavineet Trehan with Techbooks International Pvt. Ltd. He also proved the salary slip of the deceased for the month of June, July and August 2016 as Ex.PW1/4 and form-16 of the deceased for the year 2016-17 as Ex.PW1/6. PW3 Sh. Alok Kumar, Assistant from the office of Cabinet Secretariate, New Delhi who proved the employment of victim Rahul Khosla as Section Officer in Cabinet Secretariate as Ex.PW3/1. PW4 Rupesh Kumar Thakur, Accountant in Indian School, Josip Broz Tito Marg, Mool Chand Flyover, Delhi who proved service record and salary details of deceased Sapna Khosla as Ex.PW4/1. PW5 Manoj Puri who was the eye witness of the case accident and categorically deposed that the case accident had occurred due to rash and negligent driving of offending vehicle by R1. PW6 Smt Prabha Trehan, mother of deceased Chhavineet Trehan who proved that her son was aged about 47 years at the time of his accident and was earning Rs. 1,52,584/- as monthly salary from his employment as Deputy General Manager -HR in Aptara Techbooks International Pvt. Ltd. She also proved the age of her deceased daughter in law Ritu Trehan as 42 years and her salary as TGT-Arts to be Rs.50,214/- per month. She also proved that her grand son Hemang Trehan had sustained multiple injuries on his head and right ear for which he had undergone ear laceration by plastic LRs of Prabha Trehan Vs. Major Singh & Ors. Page 73 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 74 of90 surgeon. PW7 Shaurya Khosla, son of deceased Rahul Khosla and Sapna Khosla, who proved that his father Rahul Khosla was 47 years of age and was employed as Section Officer with Director of Accounts (Drawing & Disbursement Officer), Cabinet Secretariate, East Block, Delhi and was drawing monthly salary to tune of Rs.83,133/- at the time of his demise whereas his mother Sapna Khosla was aged about 43 years and was earning salary to the tune of Rs. 51,462/- per month by her employment as a Hindi Teacher with Indian School, Josip Broz Tito Marg, Mool Chand Flyover, Delhi. PW8 IO ASI Charanjeet Singh who deposed regarding the investigation conducted by him in the present matter. 13.3 The petitioners have examined PW1 Vinod Badola, a representative of employer of deceased Chhavineet Trehan. PW1 has proved salary slips of deceased Chhavineet Trehan for the months of June, July and August 2016 as Ex.PW1/4. A perusal of the said salary slip of deceased Chhavineet Trehan for the month of August 2016 reveals that gross total salary of deceased Chhavineet Trehan for the said month was Rs.1,24,940/- on which a sum of Rs.5500/- had been deducted as income tax. Thus, his net salary for the month of August 2016 stands computed at Rs.1,19,440/-. Besides, PW1 Vinod Badola has also filed Form 16 of the deceased Chhavineet Trehan for the assessment year 2017-18 and previous year 2016-17 wherein the gross total salary of the deceased with effect from 01.04.2016 to 05.09.2016, that is, for a period of five months and five days had been depicted as Rs.6,90,477/- on which tax to the tune of Rs. 32500/- has been deducted by the employer of the deceased. Accordingly, the net income of the deceased for a period of five months and five days immediately prior to LRs of Prabha Trehan Vs. Major Singh & Ors. Page 74 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 75 of90 his death can be computed at Rs.6,57,977/-. Thus, the net income of deceased after deduction of tax for 158 days for the year 2016-17 was Rs.6,57,977/- and accordingly, his income for one day can be assessed to be Rs.4164.41/- and his monthly income can be computed by multiplying his daily income to the tune of Rs.4,164.41/- by 30 days which stands computed at Rs.1,24,932.34/- per month. Accordingly, it would be reasonable and just to consider the income of petitioner as Rs.1,24,932.34/- per month as on the date of occurrence of the case accident in question, that is on 05.09.2016.
14. Addition of future prospects If addition in income towards future prospects is to be made 14.1 In this regard, reference should be made to the Constitutional Bench Judgment of Hon'ble Supreme Court of India in case of National Insurance Company Limited vs. Pranay Sethi and Ors, SLP (Civil) No. 25590 of 2014, date of decision 31.10.2017.
14.2 In the said judgment of Pranay Sethi (Supra), the Hon'ble Apex Court inter alia held as under:-
61. In view of the aforesaid analysis, we proceed to record our conclusions:-
(i).........................................................................................
(ii) .....................................................................................
(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 permanent job and was below the age of LRs of Prabha Trehan Vs. Major Singh & Ors. Page 75 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 76 of90 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 the 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 future 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. "
LRs of Prabha Trehan Vs. Major Singh & Ors. Page 76 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 77 of90 (.... Emphasis Supplied) 14.3 In the case in hand, the deceased was private sector employee/salaried person and in terms of above said judgment, while determining his income for computing compensation, future prospects have to be added to fall within the ambit and sweep of just compensation under Section 168 of M.V. Act.
14.4 In the present case, as per matriculation certificate (Class Xth certificate) and driving license of deceased Chhavineet Trehan, his date of birth was 31.10.1969 whereas the case accident had occurred on 05.09.2016. Therefore, the age of deceased as on the date of accident stands computed as 46 years 10 months and 04 days at the time of his death. In view of paragraph no. 61 (iv) of above said judgment in Pranay Sethi (Supra), the deceased would be entitled to addition of 25% as future prospects to his established income as he was above the age of 40 years but less than 50 years of age at the time of his death.
14.5 The monthly income of the deceased is thus calculated as Rs.1,56,165.42/- (monthly income of 1,24,932.34+25% of monthly income i.e Rs. 31,233.08/- = Rs. 1,56,165.42/-).
15. Deduction towards personal and living expenses of the deceased:
15.1 Claimants are the mother and son of the deceased. PW6 Prabha Trehan, mother of the deceased had categorically deposed that she alongwith her grand son Hemang Trehan was totally dependent on the income of the deceased Chhavineet Trehan. As such there is no material on record to arrive LRs of Prabha Trehan Vs. Major Singh & Ors. Page 77 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 78 of90 at a finding as to whether mother of the deceased Chhavineet Trehan was gainfully employed anywhere or was financially independent at the time of occurrence of case accident or not. Accordingly, it can be safely concluded that the deceased Chhavineet Trehan was survived by two legal heirs including his mother Prabha Trehan and his son Hemang Trehan and both his legal heirs were entitled to maintenance from the deceased. Therefore, deceased was likely to contribute 2/3rd of his income towards his household expenses inlcuding maintenance of his dependents and to spare remaining 1/3rd of his income for his personal and living expenses.
16. Selection of multiplier:
16.1 As discussed above, the age of the deceased was about 46 years, 10 months and 04 days at the time of his death. In view of paragraph no. 61(vii) of the judgment in the case of Pranay Sethi (Supra), the age of deceased should be the basis for applying the multiplier. Accordingly, the relevant multiplier would be "13" as per judgment in case of Sarla Verma (Supra) which has been upheld in paragraph no. 61 (vi) in case of Pranay Sethi (Supra).
17. Loss of financial dependency 17.1 In the light of aforesaid facts, loss of financial dependency of the petitioner no. 1 (mother and son of the deceased) comes to Rs.1,62,41,203.68/- [i.e. Rs.1,56,165.42/- (per month income of the deceased) X12 X13 (multiplier) X 2/3 (dependency)].
17.2 In view of the foregoing discussion on the point of contributory negligence and in view of the judgment of Hon'ble Apex Court in the case of LRs of Prabha Trehan Vs. Major Singh & Ors. Page 78 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 79 of90 Raj Rani (Supra), it has been determined by this Tribunal that the claimants would be entitled to 70% of the total amount of loss of financial dependency after deduction 30% from the said quantum of loss of financial dependency on account of contributory negligence on the part of the deceased.
The claimants would thus be entitled to Rs.1,13,68,842.58/- (1,62,41,203.68/-minus 30% of 1,62,41,203.68/- i.e. 48,72,361.10).
18. Compensation under non-pecuniary heads/conventional heads:
18.1 In view of the judgment of Constitution Bench of Hon'ble Apex Court in case of Pranay Sethi (Supra), as held in paragraph number 61
(viii) of the said judgment, the petitioners would be entitled to Rs. 15,000/-
towards loss to the estate of the deceased and Rs. 15,000/- towards funeral expenses.
19. Consortium {Spousal Consortium/Parental Consortium/Filial Consortium} 19.1 The deceased was married and the petitioners/claimants are his mother and his son. It is now a settled law in terms of Judgment of Hon'ble Supreme Court of India, in case of Magma General Insurance Co. Ltd vs Nanu Ram and Ors, Civil Appeal No. 9581 of 2018, date of decision 18.09.2018: 2018(8) SCJ 338:2018 SCC Online SC 1546 and the judgment of Hon'ble Delhi High Court in case of Uttrakhand Transport Corporation Vs. Jyoti Sardana, MAC.APP.920/2017, date of decision 03.04.2019 that the compensation under the head of consortium is required to be awarded to all the claimants to the tune of Rs. 40,000/- each. In the present case, there are two claimants who are the mother and son of the LRs of Prabha Trehan Vs. Major Singh & Ors. Page 79 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 80 of90 deceased, hence, Rs. 80,000/- (Rs. 40,000/- x 2) is being granted under the said head. My views in this regard are also substantiated by the latest judgments of Hon'ble Delhi High Court in cases titled as United India Ins. Co. Ltd. Vs Manorama Aggarawal and Ors., MAC.APP. 250/2015, decided on 09.01.2020 and Om Prakash and Ors vs Ved Prakash and Anr, MAC.APP 114/2019 date of decision 28.01.2020. My views are also substantiated by the latest judgments of Hon'ble Supreme Court of India in cases titled as The New India Assurance Company Limited Vs. Smt. Somwati and Ors., Civil Appeal Nos. 3093-3099 of 2020, decided on 07.09.2020 and United India Insurance Company Ltd. Vs. Satinder Kaur alias Satvinder Kaur and Ors., (2020) SCC Online 410.
20. LOSS OF LOVE and AFFECTION 20.1 The Hon'ble Supreme Court of India in the latest case of The New India Assurance Company Limited Vs. Smt. Somwati and Ors., Civil Appeal Nos. 3093-3099 of 2020, decided on 07.09.2020 after referring to its another decision of three-judge bench in case titled as United India Insurance Company Ltd. Vs. Satinder Kaur alias Satvinder Kaur and Ors., (2020) SCC Online 410 inter alia held as follows :
"34. The Three-Judge Bench in the above case approved the comprehensive interpretation given to the expression 'consortium' to include spousal consortium, parental consortium as well as filial consortium. Three-Judge Bench however further laid down that 'loss of love and affection' is comprehended in 'loss of consortium', hence, there is no justification to award compensation towards 'loss of love and LRs of Prabha Trehan Vs. Major Singh & Ors. Page 80 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 81 of90 affection' as a separate head.
35. The Constitution Bench in Pranay Sethi has also not under conventional head included any compensation towards 'loss of love and affection' which have been now further reiterated by three-
Judge Bench in United India Insurance Company Ltd. (supra). It is thus now authoritatively well settled that no compensation can be awarded under the head 'loss of love and affection'.
...................................................................................... ...................................................................................... ......................................................................................
47. In result, all the appeals are partly allowed.
The award of compensation under the conventional head 'loss of love and affection' is set aside........................"
20.2 In view of the abovesaid discussion and the latest judgments of Hon'ble Supreme Court of India in the cases of The New India Assurance Company Limited Vs. Smt. Somwati and Ors., Civil Appeal Nos. 3093- 3099 of 2020, decided on 07.09.2020 and United India Insurance Company Ltd. Vs. Satinder Kaur alias Satvinder Kaur and Ors., (2020) SCC Online 410, no amount of compensation can be awarded under the said head of 'loss of love and affection'. Hence, no amount is being granted under the said head.
21. Petitioners/claimants are accordingly entitled to compensation computed as under:
Loss of financial dependency Rs.1,13,68,842.58/-
Loss of Estate Rs. 15,000/-
Funeral Expenses Rs. 15,000/-
Loss of Consortium Rs. 80,000/-
Loss of Love and Affection Nil.
LRs of Prabha Trehan Vs. Major Singh & Ors. Page 81 of90
LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 82 of90
________________
Total Rs. 1,14,78,842.58/-
________________
[Rounded off to Rs.1,14,78,843/-]
(Rupees One Crore Fourteen Lacs Seventy Eight Thousand Eight Hundred and Forty Three only).
21.1 In respect of entitlement of the petitioner to interest on the awarded amount, it is noteworthy that the Hon'ble Apex Court had in the case of Municipal Corporation of Delhi vs. Association of Victims of Uphaar Tragedy, 2012 ACJ 48 (SC) had observed that the victims of Uphaar Tragedy be awarded compensation with interest @ 9% per annum. The present matter is pending trial since 18.10.2016 and the rate of interest of fixed deposits in Nationalized banks has fluctuated/dropped several times during the pendency of the present proceedings. Therefore, in the interest of justice, in the present case, this court is of the opinion that the claimant/petitioner is entitled to interest at the prevailing bank rate of 7% per annum from the date of filing of DAR/petition, that is, with effect from 18.10.2016 till realisation of the compensation amount.
21.2 The amount of interim award, if any, shall however be deducted from the above amount, if the same has already been paid to the petitioners.
22. Liability
22.1 In the case in hand, the New India Assurance Company Limited/R3 has not been able to show anything on record to the effect that R1 who was the driver-cum-owner of the offending vehicle was not having any valid driving licence to drive the offending vehicle. As per settled law, since the LRs of Prabha Trehan Vs. Major Singh & Ors. Page 82 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 83 of90 offending vehicle was duly insured with the insurance company/R3, hence, R2 is liable to pay the entire compensation amount to the petitioners as per law.
22.2 Accordingly, in the case in hand, in terms of order dated 16.05.2017 of Hon'ble High Court by Hon'ble Mr. Justice J.R. Midha in case of Rajesh Tyagi Vs. Jaibir Singh and Ors., New India Assurance Company Limited/R3 is directed to deposit the awarded amount of Rs. 1,14,78,843/- within 30 days from today within the jurisdiction of this Tribunal, that is, State Bank of India, Rohini Courts Branch, Delhi along with interest at the rate of 7% per annum from the date of filing of the petition till notice of deposition of the awarded amount to be given by R3 to the petitioners and his advocates and to show or deposit the receipt of the acknowledgement with the Nazir as per rules. R3 is further directed to deposit the awarded amount in the above said bank by means of cheque drawn in the name of above said bank along with the name of the claimants mentioned therein. The said bank is 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 awarded amount starts earning interest from the date of clearance of the cheque.
APPORTIONMENT
23. Statements of petitioners, namely, Smt Prabha Trehan and Sh. Hemang Trehan in terms of clause 29 MCTAP was recorded on 26.08.2021 and 14.02.2023 regarding their savings bank a/c with no loan, cheque book and ATM/debit card. I have heard the petitioner and Ld. counsel for the petitioners/claimants regarding financial needs of the petitioners and in view LRs of Prabha Trehan Vs. Major Singh & Ors. Page 83 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 84 of90 of the judgment in the case of General Manager, Kerala State Road Transport Corporation Vs. Susamma Thomas and Others, 1994 (2) SC, 1631, for appropriate investments to safeguard the amount from being frittered away by the beneficiaries owing to their ignorance, illiteracy and being susceptible to exploitation, following arrangements are hereby ordered:-
23.1 It is deemed appropriate by this court after hearing learned counsels for all parties that maximum amount of compensation be kept in FDRs and only a very small amount be released to the claimants. Keeping in view the facts and circumstances of the case, the statement made by the petitioners, it is hereby directed that on realization of the entire award amount, an amount of Rs.53,68,843/- be given to Smt Prabha Trehan, mother of the deceased, out of which an amount of Rs. 5,68,843/- be released to Smt. Prabha Trehan in her bank a/c no. 30844033385 with SBI, Ashok Vihar, Delhi, that is, the branch near her place of residence (as mentioned in statement recorded under clause 29 MCTAP), and remaining amount be kept in the form of FDRs of equal amount for a period of 1 month to 72 months with cumulative interest without the facility of advance, loan and premature withdrawal without the prior permission of the Tribunal. It is further directed that on realization of the entire award amount, an amount of Rs. 60,00,000/- be given to Sh. Hemang Trehan, son of the deceased out of which an amount of Rs. 6,00,000/- be released to him in his bank a/c no. 40402041181 with SBI, Ashok Vihar, Delhi, that is, the branch near his place of residence (as mentioned in statement recorded under clause 29 MCTAP), and remaining amount be kept in the form of LRs of Prabha Trehan Vs. Major Singh & Ors. Page 84 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 85 of90 FDRs of equal amount for a period of 1 month to 150 months with cumulative interest without the facility of advance, loan and premature withdrawal without the prior permission of the Tribunal. 23.2 It shall be subject to the following further conditions and directions in terms of order dated 07.12.2018 of Hon'ble Mr. Justice J.R. Midha in case of Rajesh Tyagi vs Jaibir Singh, FAO 842/2003 with respect to fixed deposits :-
(a) The bank shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the victim i.e. the saving bank account(s) of the claimant(s) shall be individual savings account(s) and not a joint account(s).
(b) The original fixed deposit shall be retained by the bank in safe custody. However, the statement containing FDR number, FDR amount, date of maturity and maturity amount shall be furnished by bank to the claimant(s).
(c) The monthly interest be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant/(s) near the place of their residence.
(d) The maturity amount of the FDR(s) be credited by Electronic Clearing System (ECS) in the saving bank account of the claimant(s) near the place of their residence i.e. above said a/c.
(e) No loan, advance or withdrawal or pre-mature discharge be allowed on the fixed deposits without permission of the court.
(f) The concerned Bank shall not to issue any cheque book and/or debit card to claimant(s). However, in case the debit card and/or cheque book LRs of Prabha Trehan Vs. Major Singh & Ors. Page 85 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 86 of90 have already been issued, bank shall cancel the same before the disbursement of the award amount. The bank shall debit card(s) freeze the account of the claimant(s) so that no debit card be issued in respect of the account of the claimant(s) from any other branch of the bank.
(g) The bank shall make an endorsement on the passbook of the claimant(s) to the effect, that no cheque book and/or debit card have been issued and shall not be issued without the permission of the court and claimant(s) shall produce the passbook with the necessary endorsement before the court on the next date fixed for compliance.
(h) It is clarified that the endorsement made by the bank along with the duly signed and stamped by the bank official on the pass book(s) of the claimant(s) is sufficient compliance of clause (g) above.
24. Relief 24.1 As discussed above, R3 is directed to deposit the award amount of Rs.1,14,78,843/-, with interest @ 7% per annum from the date of filing of DAR/petition i.e. 18.10.2016 till realization within the jurisdiction of this Tribunal i.e. SBI, Rohini Court Branch, Delhi within 30 days from today under intimation of deposition of the awarded amount to be given by R3 to the petitioners and their advocate failing which the R3 shall be liable to pay interest @ 9% per annum from the period of delay beyond 30 days. 24.2 R3 is also directed to place on record the proof of deposit of the award amount, proof of delivery of notice in respect of deposit of the award amount in the above said bank to the claimants and complete details in respect of calculations of interest etc in the court within 30 days from today. 24.3 A copy of this judgment/award be sent to respondent no.2 for LRs of Prabha Trehan Vs. Major Singh & Ors. Page 86 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 87 of90 compliance within the granted time.
24.4 Nazir is directed to place a report on record in the event of non- receipt/deposit of the compensation amount within the granted time.
In terms of directions contained in the order dated 07.12.2018 and subsequent order dated 22.02.2019 of Hon'ble Mr. Justice J.R. Midha in the case of Rajesh Tyagi and Ors vs Jaibir Singh and Ors., FAO 842/2003, the copy of the award be also sent by the Ahlmad of the court to Mr. Rajan Singh, Assistant General Manager, State Bank of India (as per the list of nodal officers of 21 banks of Indian Bank's Association as circulated to the Motor Accident Claims Tribunal vide above mentioned order dated 22.02.2019 of Hon'ble Delhi High Court) who is the Nodal Officer with contact details (022-22741336/9414048606) {other details- Personal Banking Business Unit (LIMA) 13th Floor, State Bank Bhawan, Madame Cama Road, Nariman Point, Mumbai-400021} through email ([email protected]) through the computer branch of Rohini Courts, Delhi. Ahlmad of the court is directed to take immediate steps in that regard.
24.5 A copy of this award be forwarded to the concerned Metropolitan Magistrate and DLSA in terms of the orders passed by the Hon'ble High Court in FAO 842/2003 Rajesh Tyagi Vs. Jaibir Singh and Ors. vide order dated 12.12.2014.
In view of the directions contained in order dated 18.01.2018 of Hon'ble Mr. Justice J.R. Midha in FAO no. 842/2003 titled as Rajesh Tyagi vs Jaibir Singh, statement of petitioner was also recorded on 22.10.2022 wherein she had stated that she was entitled to exemption from LRs of Prabha Trehan Vs. Major Singh & Ors. Page 87 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 88 of90 deduction of TDS and that she would submit form 15G to insurance co. so that no TDS is deducted.
25. Form IVA which has been duly filled in has also been attached herewith. File be consigned to record room as per rules after compliance of necessary legal formalities. Copy of order be given to parties for necessary compliance as per rules.
Announced in open court (JASJEET KAUR)
on 27th October, 2023 PO MACT N/W
Rohini Courts, Delhi.
LRs of Prabha Trehan Vs. Major Singh & Ors. Page 88 of90
LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 89 of90
FORM - IV A
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN DEATH
CASES TO BE INCORPORATED IN THE AWARD
1. Date of accident : 05.09.2016
2. Name of deceased: Sh. Chhavineet Trehan
3. Age of the deceased: About 46 years 10 months and 04 days at the time of accident.
4. Occupation of the deceased: Salaried
5. Income of the deceased: - Rs.1,24,932/- per month
6. Name, age and relationship of legal representatives of deceased:
S.No. Name Age Relation
(i) Smt. Prabha Trehan 78 years Mother
(ii) Sh. Hemang Trehan 19 years Son
Computation of Compensation
S.No. Heads Awarded by the Claims
Tribunal
7. Income of the deceased (A) Rs. 1,24,932.34/- (as per
monthly income)
8. Add-Future Prospects (B) 25% = Rs. 31,233.08/-
9. Less-Personal expenses of the 1/3rd (Rs.52,055.14)
deceased (C )
10. Monthly loss of dependency Rs.1,04,110.28/-
{ (A+B) - C =D}
11. Annual loss of dependency (Dx12) Rs. 12,49,323.36/-
12. Multiplier (E) 1313. Total loss of dependency (Dx12xE = Rs. 1,62,41,203.07/-. After F) deduction of 30% contributory negligence on the part of deceased (after LRs of Prabha Trehan Vs. Major Singh & Ors. Page 89 of90 LRs of Chhavineet Trehan Vs. Major Singh & Ors. Page 90 of90 rounding of Rs.1,13,68,843/-) (1,62,41,203.68/-minus 30% contributory negligence of 1,62,41,203.68/- i.e. 48,72,361.10)
14. Medical Expenses (G) Nil
15. Compensation for loss of love and Nil affection (H)
16. Compensation for loss of Rs. 80,000/- (40,000x2) consortium (I)
17. Compensation for loss of estate (J) Rs. 15,000/-
18. Compensation towards funeral Rs. 15,000/-
expenses (K)
19. TOTAL COMPENSATION Rs.1,14,78,842.6/- (rounded (F+G+H+I+J+K =L) off Rs.1,14,78,843/-)
20. RATE OF INTEREST AWARDED 7% 21 Interest amount up to the date of Rs. 56,44,720.98/-
award (M)
22. Total amount including interest Rs.1,71,23,564/-
(L+M)
23. Award amount released Rs. 11,68,843/-
24. Award amount kept in FDRs Rs. 1,59,54,721/-
25. Mode of disbursement of the award As per award and in terms of amount to the claimant (s) (Clause clause 29 of MCTAP.
29)
26. Next date for compliance of the 26.11.2023.
award. (Clause 31)
Announced in open court (JASJEET KAUR)
on 27th October, 2023 PO MACT N/W
Rohini Courts, Delhi
LRs of Prabha Trehan Vs. Major Singh & Ors. Page 90 of90