Delhi District Court
Smt.Susmita Nayak vs Sh.Himanshu Nayak on 12 August, 2014
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IN THE COURT OF SH.HARISH DUDANI
JUDGE:MOTOR ACCIDENT CLAIMS TRIBUNAL 1 NEW DELHI
SUIT NO.:697/11
DATE OF INSTITUTION: 17.9.2009
1. SMT.SUSMITA NAYAK
W/O LATE SH.ABHIMANYU NAYAK
2. ALBIDYA NAYAK
D/O LATE SH.ABHIMANYU NAYAK
3. SH.BABAJI CHARAN NAYAK
S/O SH.MADHUSUDAN NAYAK
4. SMT.BASANTI NAYAK
W/O SH.BABAJI CHARAN NAYAK
ALL R/O VILLAGE BHOPAL
PO CHAKADA GAOGUA, PS & TEH.MAHAKALAPARA
DISTT.KENDRAPARA,ORISSA. ............PETITIONER
Versus
1.SH.HIMANSHU NAYAK
S/O SH.NIRANJAN NAYAK
R/O VILLAGE BHOPAL
PO CHAKADA GAGUA, PS & TEH.MAHAKALAPARA
DISTT.KENDRAPARA,ORISSA.
ALSO AT VILLAGE NITHARI
SECTOR31, NOIDA, G.B.NAGAR,UP.
2.SH.RAMESH NAYAK
S/O SH.SUNAKAR NAYAK
R/O B23,SECTOR20
NOIDA, GAUTAM BUDH NAGAR,UP.
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3. NATIONAL INSURANCE CO.LTD.
5,JANPATH, NEW DELHI110001. ..........RESPONDENTS.
Final Arguments heard on : 04.08.2014 Award reserved for : 12.08.2014 Date of Award : 12.08.2014 AWARD
1. Vide this judgment cum award I proceed to decide the petition filed U/s 166 and 140 of Motor Vehicle Act, 1988, as amended up to date (hereinafter referred to as the Act) for grant of compensation in a road accident.
2. Briefly stated the facts giving rise to the petition are that on 8/9.1.2009 Sh.Abhimanyu @ Abhimanu Nayak was sitting as pilliion rider on motorcycle no. UP16S7821 which was being driven by respondent no.1 at a very high speed in a rash and negligent manner and they were going towards Noida from Patel Nagar and at about 12.30 AM they reached at Barakhamba Road red light near Railway Station Flyover, New Delhi and respondent no.1 lost control over the motorcycle and hit the motorcycle on the divider as a result of which Sh.Abhimanyu @ Abhimanu Nayak fell on the divider and respondent no.1 dragged Sh.Abhimanyu @ Abhimanu Nayak alongwith motorcycle for some steps as a result of which Sh.Abhimanyu @ Abhimanu Nayak sustained injuries. Sh.Abhimanyu @ 3 Abhimanu Nayak was taken to Dr. RML Hospital where he expired during course of treatment on 11.01.2009.
3. It is stated that at the time of accident Sh.Abhimanyu Singh was 35 years of age and working as plumber and was earning Rs.8,000/pm. It is stated that accident was caused due to rash and negligent driving of offending vehicle by respondent no.1, the said vehicle was owned by respondent no.2 and insured with respondent no.3 and as such all the respondents are jointly and severally liable to pay the compensation. It is prayed that Rs.Forty Lacs be awarded as compensation in favour of the petitioners alongwith interest from the the date of filing of the petition till its realisation and against the respondents.
4. Respondents no.1 driver has filed written statement and has contested the petition. It is stated that the offending vehicle was insured with respondent no.3. Other averments on merit are denied.
5. Respondent no.2, owner did not file reply to the petition despite opportunities and his defence was struck of by my Ld. Predecessor vide order dated 15.12.2011.
6. Respondent no.3, the insurance company has filed written statement and has contested the petition. It is admitted that vehicle no.UP16S7821 was insured in the name of Sh.Ramesh Nayak bearing policy no. 35070131086200085546 valid from 18.4.2008 to 17.4.2009 with the 4 respondent no.3. Other averments made on merits are denied.
7. From the pleadings of parties following issues were framed by my Ld. Predecessor on 15.12.2011:
(1) Whether the deceased sustained injuries in the accident which occurred on the intervening night of 89.1.2009 at red light of Barakhamba Road fly over, New Delhi caused by rash and negligent driving of vehicle no.UP16S7821 driven by respondent no.1, owned by respondent no.2 and insured with respondent no.3?OPP.
(2)Whether the petitioner is entitled for compensation?
If so, to what amount and from whom?
(3) Relief.
8. In support of their claim, petitioners examined ASI Suraj Mal as PW1. PW1 proved copies of FIR, site plan, driving license of Sh.Himanshu Nayak, RC of vehicle bearing registration no.UP16S7821, insurance policy in respect of aforesaid motorcycle, seizure memo of motorcycle, mechanical inspection report, MLC of Sh.Abhimanyu Nayak Ex.PW1/1(colly.) and attested copy of chargesheet Ex.PW1/2.
9. Petitioners examined Smt.Susmita Nayak, petitioner no.1,wife of deceased as PW2. PW2 tendered her evidence in examination in chief by affidavit Ex.PW2/1. PW2 proved legal heir certificate Ex.PW2/A, High School Certificate Examination, Board of Secondary Education, Orissa of 5 her husband Ex.PW2/B and Higher Secondary Examination Certificate Ex.PW2/C.
10.Respondent no.1 examined himself as R1W1 and tendered his affidavit in evidence Ex.R1W1/A.
11.Respondent no.3 examined ASI Surajmal, PS Mandir Marg as R3W1. R3W1 stated that he had gone to verify the D/L no.10142/07 issued on 17.7.07 in the name of Sh.Himanshu Nayak s/o Sh.Niranjan Nayak from Mathura Licensing Authority and the same was found to be forged and the report of the Mathura Licensing Authority is Ex.PX on his letter Ex.R3W1/1. As per report Ex.PX the D/L no.10142/07 was issued in the name of Sh.Dasrath Sharma s/o Sh.Mohan Lal Sharma and not in the name of Sh.Himanshu Nayak.
12.Respondent no.3 examined Ms.Anita Poddar, Assistant Manager as R3W2. R3W2 proved copy of insurance policy Ex.R3W2/1, copies of notice u/o 12 rule 8 CPC alongwith receipts Ex.R3W2/2, report of investigator Ex.R3W2/3 and report of Licensing Authority, Mathura Ex.R3W2/4, death report of deceased Sh.Abhimanyu Nayak already on record Ex.R3W2/5. R3W2 stated that the driver respondent no.1 has violated the terms and conditions of the policy therefore insurance company is not liable to pay any compensation to the petitioner. Respondent no.3 thereafter closed its evidence.
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13.I have heard the Ld. counsel for the parties and perused the record. My findings on specific issues are as follows:
ISSUE NO. 1
14.As the petition has been filed U/s 166 M.V Act it was incumbent upon the petitioners to prove that deceased sustained injuries in an accident caused due to rash and negligent driving of offending vehicle no.UP16S7821.
15.To determine the negligence of driver of offending vehicle it has been held in National Insurance Company Ltd. V/s Pushpa Rana & Another, 2009 ACJ 287 as follows:
"The last contention of the appellant insurance company is that the respondentsclaimants should have proved negligence on the part of the driver and in this regard the counsel has placed reliance on the judgment of the Hon'ble Apex Court in Oriental Insurance Company Ltd. V. Meena Variyal(supra). On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced:(i) certified copy of the criminal record of criminal case in FIR no. 955 of 2004, pertaining (ii) criminal record showing completion of investigation of police and issue of charge sheet under sections 279/304A , Indian Penal Code against the driver was lodged; (iii) certified copy of FIR wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of deceased. These documents are sufficient proofs to reach conclusion that the driver was negligent. Proceedings under the Motor Vehicle Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Hence this contention of the counsel for the appellant also falls face down. There is ample evidence 7 on record to prove negligence on part of the driver."
16.The case of the petitioners is that on 8/9.1.2009 Sh.Abhimanyu @ Abhimanu Nayak was sitting as pillion rider on motorcycle no. UP16S7821 which was being driven by respondent no.1 at a very high speed in a rash and negligent manner and at about 12.30 AM they reached at Barakhamba Road red light near Railway Station Flyover, New Delhi and respondent no.1 lost control over the motorcycle and hit the motorcycle on the divider as a result of which Sh.Abhimanyu @ Abhimanu Nayak fell on the divider and respondent no.1 dragged Sh.Abhimanyu @ Abhimanu Nayak alongwith motorcycle for some steps as a result of which Sh.Abhimanyu @ Abhimanu Nayak sustained injuries. Sh.Abhimanyu @ Abhimanu Nayak was taken to Dr. RML Hospital where he expired during course of treatment on 11.01.2009. The petitioners examined petitioner no.1 as PW2 who adduced evidence by way of affidavit Ex.PW2/A. Vide order of my Ld. Predecessor dated 15.12.2011 the defence of respondent no.2 was struck off. In para 1 of PO of written statement respondent no.1 has stated that there was a big hole on the road and all of a sudden the wheel of the motorcycle went into the big hole and the motorcycle became out of control of respondent no.1 and respondent no.1 hit the divider of road and the alleged accident is neither intentional nor deliberately. The petitioners examined ASI Suraj 8 Mal IO of the case as PW1 and PW1 stated in his examination that on 09.01.2009 on receipt of DD no. 29A he reached the spot of accident where motorcycle no.UP16S7821 was found in accidental condition and he came to know that the driver and pillion ride of the motorcycle have been removed to Dr. RML Hospital and he conducted investigation and got FIR registered and stated that the accident had taken place on account of rash and negligent driving of driver of motorcycle. In the cross examination of PW1 the respondents no.1 and 2 have not preferred to put any question. Respondent no.1 examined himself as R1W1 and adduced evidence by way of affidavit Ex.R1W1/A. In para 2 of affidavit Ex.R1W1/A the respondent no.1 has stated that on 8/9.1.2009 he was driving the motorcycle at a normal speed and on the correct portion of the road and the deceased was sitting on the motorcycle and he was under the influence of heavy alcohol and the deceased himself was falling from the motorcycle again and again and when he reached at Barakhamab Road near Red Light Railway Station Flyover there was thick fog on the road and suddenly a unknown vehicle came from wrong side and hit his motorcycle with great force as a result of which he and deceased fell down and sustained injuries and the vehicle which had caused the accident fled away from the spot. It is to be noted that in para 1 of PO of written statement the respondent no.1 has stated that on account of big 9 hole on the road he lost control of motorcycle and hit against the divider but in para 2 of affidavit Ex.R1W1/A the respondent no.1 has stated that he was hit by some unknown vehicle. In the crossexamination R1W1/respondent no.1 has admitted that the case vide FIR no. 6/09, under Section 279/304A has been registered against him at PS Barakhamba Road and he has not made any complaint to any higher authority that the said case has been wrongly registered against him. Apart from his own testimony the respondent no.1 has not adduced any independent evidence to prove that the accident had not taken place due to his negligence. The petitioners have filed on record the copies of criminal record consisting of FIR no. 6/09, under Section 279/337 IPC, PS Barakhamba Road, copy of site plan, copy of seizure memo of motorcycle, copy of mechanical inspection report of motorcycle, copy of RC and insurance policy of the motorcycle, copy of MLC of deceased prepared at Dr. RML Hospital, copy of postmortem report of Sh.Abhimanyu Nayak prepared at Lady Hardinge Medical College and Smt. S. K. Hospital and copy of final report under Section 173 Cr. PC. As per postmortem report the cause of death is cranio cerebral damage due to blunt force impact. As per final report under Section 173 Cr. PC the respondent o.1 as been charge sheeted for offences under Section 279/304A IPC and 185 Motor Vehicle Act. Respondents have not proved 10 any other version of accident by any cogent evidence. Thus in view of testimony of PW1&PW2 and documents on record the negligence of driver of offending vehicle has been prima facie proved. Issue no.1 is accordingly decided in favour of petitioners and against the respondents. ISSUE NO.2
17.As issue no.1 is decided in favour of the petitioners, they are entitled to compensation.
COMPENSATION
18. The petition has been filed by petitioner no.1/wife, petitioner no.2 minor child and petitioner no.3 father and petitioner no.4 mother of deceased. It is stated that Sh. Abhimanyu @ Abhimanu Nayak was 35 years of age at the time of accident. In order to prove the age of deceased the petitioners have filed on record the high school examination certificate issued by Board of Secondary Education, Orissa Ex.PW2/B as per which the date of birth of deceased is 16.03.1978, hence the deceased was around 30 years and 10 months of age at the time of accident and the appropriate multiplier applicable as per Sarla Verma and Ors. vs Delhi Transport Corporation and Another (2009) 6 SCC 121 shall be of 16.
19.It is stated in the claim petition that Sh. Abhimanyu Nayak was working as Plumber and was earning a sum of Rs.8,000/ per month. PW2 stated in the crossexamination that she has not filed any document regarding 11 income of deceased. PW2 denied the suggestion of respondent no. 3 in the crossexamination to the effect that her husband was not earning a sum of Rs.8,000/ per month. Petitioners have not proved that Sh.Abhimanyu Nayak had obtained any certificate or diploma in plumbing work or had experience of doing said work and the income of deceased has not been proved by any cogent evidence. In the circumstances the income of deceased shall be determined as per his qualifications. The petitioners have filed on record high school examination certificate issued by Board of Secondary Education, Orissa Ex.PW2/B as per which the deceased has passed high school examination in the year 1995. Hence the income of deceased shall be taken as Rs.4131/ per month which were the minimum wages of a matriculate w.e.f. 01.08.2008.
20. The petition has been filed by petitioner no.1 wife of deceased and petitioners no.2 daughter of deceased, petitioner no.3 father of deceased and petitioner no. 4 mother of deceased. Petitioner no.1 stated in her examination before the court on 4.08.2014 that the petitioner no.3/father of deceased is a retired government employee. In the circumstances, father of deceased/petitioner no.3 can not be considered a dependent upon the deceased in view of judgment of Sarla Verma and Ors. vs Delhi Transport Corporation and Another (supra).
21. In Sarla Verma and Ors. vs Delhi Transport Corporation and 12 Another (supra) it has been held:
"30.Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra, the general practice is to apply standardised deductions. Having considered several subsequent decisions of this Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be onethird(1/3rd) where the number of dependent family members is 2 to 3, onefourth(1/4th) where the number of dependent family members is 4 to 6, and onefifth(1/5th) where the number of dependent family members exceeds six."
22.In the circumstances, in view of decision in Sarla Verma and Ors. vs rd Delhi Transport Corporation and Another (supra) 1/3 is to be deducted for personal and living expenses of the deceased. After rd deduction of 1/3 , the income of deceased would be Rs.2,754/(i.e. Rs.
rd 41311/3 of Rs.4131/).
23.In Rajesh and others V.Rajbir Singh and others, 2013 ACJ 1403, it has been held by Hon'ble Supreme Court that :
"11.Since the court in Santosh Devi's case, 2012 ACJ 1428(SC), actually intended to follow the principle in the case of salaried persons as laid down in Sarla Verma's case, 2009 ACJ 1298(SC) and to make it applicable also to selfemployed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30 percent always; it will also have a reference to the age. In other words, in the case of selfemployed or persons with fixed wages, in case the deceased victim was below 40 years, there must be an addition of 50 13 percent to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax,if any. Addition should be 30 percent in case the deceased was in the age group of 40 to 50 years."
24. The age of the deceased has been taken as around 30 years and 10 months at the time of accident. Hence after addition of 50% income of deceased would be Rs.2754/+50% of 2754/=Rs.4131/per month. After applying the multiplier of 16, the total loss of dependency is computed to be as Rs.4131x12x16=Rs.7,93,152/. In Rajesh and others V.Rajbir Singh and others, 2013 ACJ 1403, Hon'ble Supreme Court has held that loss of consortium should be Rs.1,00,000/ and funeral expenses should be Rs.25,000/. Petitioners are also awarded Rs.1,00,000/ for loss of care and guidance to minor child in terms of decision in Rajesh and others V.Rajbir Singh and others(supra).
The total compensation is determined as under:
Loss of dependency : Rs. 7,93,152/
Loss of Consortium : Rs. 1,00,000/
Funeral Expenses : Rs. 25,000/
Loss of care and guidance
to minor children : Rs. 1,00,000/
TOTAL : Rs. 10,18,152/
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RELIEF
25.The petitioner is thus awarded Rs.10,18,152/(Rs.Ten Lacs Eighteen Thousand One Hundred Fifty Two only) with interest at the rate of 7.5% per annum in view of judgment of Rajesh and others V.Rajbir Singh(supra) from the date of filing of petition till its realisation including, interim award, if any already passed in favour of the petitioners and against the respondents. Petitioner no.3 father of deceased can not be considered at dependent on the income of deceased in view of judgment of Sarla Verma and Ors. vs Delhi Transport Corporation and Another (supra). Petitioner no.1 will have a share of 60% in the award amount and petitioner no.2 will have a share of 30% and petitioner no. 4 shall have a share of 10% in the award amount.
26.For safeguarding the compensation amount from being frittered away by the claimants, directions have been given by Hon'ble Supreme Court for preserving the award amount in the case of Jai Prakash Vs. National Insurance Co. Ltd. and Others (2010) 2 Supreme Court Cases 607. In view of the directions contained in the above judgments the award amount is to be disbursed as follows:
27. Entire share of petitioners no.2 be kept in FDR in a Nationalized Bank till she attain majority. 10% of the share of petitioners no.1 and 4 be released to them by transferring it into their savings account and 15 remaining amount be kept in FDR in UCO Bank, Patiala House Court, New Delhi in following manner:
1. Fixed deposit in respect of 10% for a period of one year.
2. Fixed deposit in respect of 10% for a period of two years.
3. Fixed deposit in respect of 10% for a period of three years.
4. Fixed deposit in respect of 10% for a period of four years.
5. Fixed deposit in respect of 10% for a period of five years.
6. Fixed deposit in respect of 10% for a period of six years.
7. Fixed deposit in respect of 10% for a period of seven years.
8. Fixed deposit in respect of 10% for a period of eight years.
9. Fixed deposit in respect of 10% for a period of nine years.
28.The cheque be deposited in UCO Bank, Patiala House Court, New Delhi in the name of UCO Bank, Patiala House Court, New Delhi A/c Smt.Susmita Nayak, A/c Ms. Albidya Nayak, A/c Smt. Basanti Nayak.
29.The interest on the fixed deposits shall be paid monthly by automatic credit in the saving accounts of the claimants/beneficiary.
30.Original fixed deposit receipt shall be retained by the Bank in safe custody. However, the original pass book shall be given to the claimant along with the photocopy of the FDR. Upon the expiry of period of FDR the bank shall automatically credit the maturity amount in the saving account of beneficiary.
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31.The original fixed deposit receipt shall be handed over to the claimant at the end of the fixed deposit period and shall automatically credit the maturity amount in the savings account of the beneficiary.
32.No cheque book shall be issued to the claimant without permission of the court. No loan, advance or withdrawal shall be allowed on the fixed deposit without permission of the court.
33.Withdrawal from the aforesaid accounts shall be permitted to the beneficiary after due verification and the Bank shall issue photo identity card to the beneficiary to facilitate identity.
34.Bank shall transfer Savings Account to any other branch/bank according to their convenience.
35.The beneficiary shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit to Senior Manager of UCO Bank, Patiala House Court, New Delhi.
36.Nazir to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself.
37.The insurer/respondent no. 3 shall deposit the award amount directly in bank account of the petitioners at UCO Bank,Patiala House Court,New Delhi within 30 days of the passing of the award failing which it is liable to pay interest at the rate of 12% per annum for the period of delay. 17
38.The petitioners shall file two sets of photographs along with their specimen signatures, out of which one set to be sent to the Nodal Officer, UCO Bank, Patiala House Court, New Delhi along with copy of the award by Nazir and the second set be retained to the court for further reference. The photographs be stamped and sent to the bank. The petitioners shall also file the proof of residence and furnish the details of the bank account with the Nazir within a week. The petitioners shall file their complete address as well as address of their counsel for sending the notice of deposit of the award amount.
39.The insurer/respondent no. 3 shall deposit the award amount alongwith interest upto the date of notice of deposit to the claimant with a copy to her counsel and the compliance report shall be filed in the court alongwith proof of deposit of award amount, the notice of deposit and the calculation of interest on 20.10.2014.
APPORTIONMENT OF LIABILITY
40. The contention of counsel for respondent no.3 is that the driver of offending vehicle i.e respondent no.1 was found to be holding fake driving licence at the time of accident and on that account the insurance company is not liable to indemnify the insured. The insurance company/respondent no.3 examined ASI Suraj Mal IO of the case as R3W1 who stated that he had gone to verify the driving licence 18 no.10142/07 issued on 17.07.2007 in the name of Sh. Himanshu Nayak from Mathura Licencing Authority and the same was found to be forged and the report of Mathura Licencing Authority is Ex.PX on his letter Ex.R3W1/1 and as per report Ex.PX the driving licence no. 10142/07 was issued in the name of Sh. Dasrath Sharma S/o Sh. Mohan Lal Sharma and not in the name of Sh. Himanshu Nayak. Insurance company/Respondent no.3 also examined Ms. Anita Poddar, Assistant Manager of the insurance company as R3W2 who stated that the insurance company verified the licence through their investigator and the report of investigator is Ex.R3W2/3 and the report of licencing authority was obtained by the investigator in form 54 which is Ex.R3W2/4 and stated that as per report of licencing authority in form 54 Ex.R3W2/4 the licence no. 10142/MTR/07 has been issued in the name of Sh. Dasrath Sharma S/o Sh. Mohan Lal Sharma and not in the name of Sh. Himanshu Nayak. R3W2 further stated that they have issued notice under Order 12 Rule 8 CPC to respondents no.1 and 2 thereby calling upon them to produce any valid driving licence possessed by respondent no.1 but no such driving licence has been produced. In the crossexamination of IO/ASI Suraj Mal respondent no.1 has given suggestion to the effect that the driving licence mark A as appended with Ex. R3W1/1 is not a forged document. Although respondent no.1 has pleaded that the driving licence 19 mark A which was seized by police at the time of accident is not forged but apart from giving suggestion to R3W1 to this effect the respondent no.1 has not summoned record from concerned transport authority to prove his contention. In the crossexamination of R3W2 also the respondent no.1 has given suggestion to the effect that respondent no.1 was holding valid driving licence at the time of accident.
41.Rule 7 of Delhi MACT Rules, 2008 provides:
"The contents of reports submitted to the Claims Tribunal in Form "A" and Form "D" by investigating police officer and concerned registering authority respectively, and confirmation under clause (b) of rule 5 by the insurance company shall be presumed to be correct, and shall be read in evidence without formal proof, till proved to the contrary".
42. IO/R3W1 has categorically stated that he has verified the driving licence no. 10142/07 which was seized by police from respondent no.1 at the time of accident from Mathura Licencing Authority and in his report Ex.PX on his letter Ex.R3W1/1, the concerned Authority has stated that the said licence has not been issued in the name of Sh. Himanshu Nayak and the same was issued in the name of Sh. Dasrath Sharma S/o Sh. Mohan Lal Sharma. In view of Rule 7 of Delhi MACT Rules, 2008 the report of Investigating Officer regarding genuineness of driving licence of respondent no.1 is presumed to be correct as the contrary has not been proved by respondent no.1. Respondent no.1 has not proved by any 20 cogent evidence that driving licence as possessed by him at the time of accident mark A which was seized from him by the police was not a fake driving licence. Respondent no.1 himself appeared in witness box as R1W1 and adduced evidence by way of affidavit Ex.R1W1/A and in his affidavit Ex.R1W1/A respondent no.1 has nowhere stated that the driving licence as possessed by him at the time of accident which was seized by police is a genuine driving licence. Thus in view of evidence on record it has been proved that the respondents no.1 and 2 have committed conscious and willful breach of terms and conditions of insurance policy.
43.It is also to be noted that in para 1618 of reply on merits in the written statement respondent no. 1 has claimed himself to be owner of offending vehicle. Although in the written statement respondent no.1 has pleaded that he has purchased the vehicle from respondent no.2 and he is the owner of the same but no document to this effect has been proved by respondent no.1. Respondent no.1 himself appeared in witness box as R1W1 and adduced evidence by way of affidavit Ex.R1W1/A and in his affidavit Ex.R1W1/A the respondent no.1 has not stated that he is owner of the vehicle. It appears that in the written statement respondent no.1 has taken plea that he is the owner of the vehicle in order to save respondent no.2 from liability of paying compensation.
44.In National Insurance Co.Ltd. Vs Swaran Singh and Others ,AIR 21 2004 SC 1531 Supreme Court on Accident Claims it was held that:
"71.We have analysed the relevant provisions of the said Act in terms whereof a motor vehicle must be driven by a person having a driving license. The owner of a motor vehicle in terms of Section 5 of the Act has a responsibility to see that no vehicle is driven except by a person who does not satisfy the provisions of Section 3 or 4 of the Act. In a case, therefore, where the driver of the vehicle admittedly did not hold any license and the same was allowed consciously to be driven by the owner of the vehicle by such person, the insurer is entitled to succeed in its defence and avoid liability. The matter, however, may be different where a disputed question of fact arises as to whether the driver had a valid driving license or where the owner of the vehicle committed a breach of the terms of the contract of insurance as also the provisions of the Act by consciously allowing any person to drive a vehicle who did not have a valid driving license."22
45.It was further held in National Insurance Co.Ltd. Vs Swaran Singh and Others that :
"It is a one thing to say that the insurer will be entitled to avoid its liability owing to breach of terms of a contract of insurance but it is another thing to say that the vehicle is not insured at all. It was further held that Subsection(5) of Section 149 which imposes a liability on the insurer must also be given its full effect. The Insurance Company may not be liable to satisfy the decree and, therefore, its liability may be zero but it does mean that it did not have initial liability at all.
Thus, if the Insurance Company is made liable to pay any amount, it can recover the entire amount paid to the third party on behalf of the assured."
46. Accordingly,respondent no. 3 being the insurer is directed to satisfy the award and is directed to deposit the award amount within a period of 30 days in UCO Bank, Patiala House Court Branch, New Delhi with interest at the rate of 7.5% per annum from the date of filing of petition till its realisation with right of recovery from respondent no. 1 and 2 i.e. driver and owner. In case of delay, it shall be liable to pay interest @ 12 % per 23 annum.
47.Nazir to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself.
An attested copy of the award be given to the parties free of cost. File be consigned to Record Room.
Announced in the open court. (Harish Dudani) on 12.08.2014. PO/MACT01, New Delhi.