Delhi District Court
Presiding Officer vs Sh. Hemant Kumar Mehta on 14 November, 2019
MACP No.4271/16 FIR No. 237/14; PS. Bhalaswa Dairy DOD: 14.11.2019
IN THE COURT OF SHRI DEVENDER KUMAR JANGALA,
PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNAL,
ROHINI COURTS, DELHI
MAC Petition No. 4271/16(Old MACP No. 495/14)
Sh. Ravinder Babu Sharma,
S/o Late Sh. Vidya Ram,
R/o KH. No. 200,
Gali No. 7,
25 Futa Road,
Mukundpur, Part II,
Delhi. ..........Petitioner
VERSUS
1. Sh. Hemant Kumar Mehta,
S/o Sh. Budh Ram Mehta,
R/o D3/111, Surender Colony,
Part - 1, Jharoda, Majra,
Burari, Delhi.
(Drivercumpossessory owner)
2. Smt. Anju Bhatia,
W/o Sh. Vivek Bhatia,
R/o 14, Khanna Market,
Tis Hazari,
Delhi
(Registered Owner)
3. National Insurance Co. Ltd.
9, 302, N.N. Mall,
Near M2K Cinema,
Sector - 3,
Rohini, Delhi
(Insurer) ............Respondents
Date of Institution : 03.11.2014 Date of Arguments : 14.11.2019 Date of Judgment : 14.11.2019 Ravinder Babu Sharma Vs. Hemant Kumar Mehta & Ors. Page 1 of 22 MACP No.4271/16 FIR No. 237/14; PS. Bhalaswa Dairy DOD: 14.11.2019 APPEARENCES:
Sh. P.C. Thakur, Ld. Counsel for petitioner/injured. None for drivercumpossessory owner and registered owner. Ms. Shalinee Rawat, Ld. Counsel for insurance co.
Petition under Section 166 and 140 of M.V. Act, 1988 for grant of compensation AWARD
1. The petitioner has sought compensation to the tune of Rs. 20,00,000/ for the injuries sustained by him in Motor Vehicular Accident which occurred on 07.05.2014 at about 7:00 am at Gali No. 12, 20 Futa Road, Mukundpur, Part II, Delhi, involving Bus bearing registration no.
DL1V7153 (alleged offending vehicle) being driven by respondent no. 1 in rash and negligent manner.
2. It is averred in the claim petition that on 07.05.2014, the petitioner was coming on his cycle after delivering newspaper in the inner gali. At about 7:00 am when he reached at Gali No. 12, 20 Futa Road, Mukundpur, Part II, Delhi,, one Bus bearing registration no. DL1V7153 while being driven at high speed and in rash and negligent manner, came from behind and hit against his cycle. As a result thereof, he fell down on the road and sustained grievous injuries and fracture on both the legs and abrasion all over the body. He was taken to Sushruta Trauma Centre, where he was medically examined vide MLC No. 186998. FIR No. 237/14, U/s 279/337 IPC was registered at PS. Bhalaswa Dairy with regard to the said accident. The said vehicle i.e. Bus bearing registration no. DL1V7153 Ravinder Babu Sharma Vs. Hemant Kumar Mehta & Ors. Page 2 of 22 MACP No.4271/16 FIR No. 237/14; PS. Bhalaswa Dairy DOD: 14.11.2019 was found to be owned by respondent no. 2 and it was found to be insured with respondent no. 3 at the time of accident.
3. It may be noted here that Detailed Accident Report (DAR) was also filed by the police corresponding to the investigation carried out in case FIR No. 237/14 (supra) on 12.02.15.
4. The respondents no. 1 & 2 i.e. drivercumpossessory owner and registered owner have failed to file their WS despite grant of sufficient time and opportunities. Consequently, their defence was struck off vide order dated 25.05.15 passed by Ld. Predecessor.
5. Respondent no. 3/insurance company has raised statutory defence as provided in Section 149(2) M.V. Act by claiming. It has claimed that the respondent no. 1 was not holding valid and effective driving licence at the time of accident and only for that reason, police had also filed challan against the respondent no. 1 for offences u/s. 3/181 & 66/192 M.V. Act. It is further claimed that there was no valid route permit of the offending vehicle at the time of accident. Thus, insurance company is not liable to pay the compensation amount to the petitioner. However, it has admitted that the aforesaid Bus was insured with it in the name of respondent no. 2 Smt. Anju Bhatia, having validity from 05.03.14 to 04.03.15. On merits, insurance company has simply denied the averments made in the claim petition and has prayed for its dismissal.
Ravinder Babu Sharma Vs. Hemant Kumar Mehta & Ors. Page 3 of 22MACP No.4271/16 FIR No. 237/14; PS. Bhalaswa Dairy DOD: 14.11.2019
6. From pleadings of the parties, the following issues were framed vide order dt. 25.05.2015 by my Ld. Predecessor:
1. Whether the petitioner Ravinder Babu Sharma suffered injuries in road traffic accident on 07.05.14 in Gali No. 12, 20 foota road, Mukundpur, Part 2, Delhi within the jurisdiction of PS Bhalaswa Dairy due to rashness and negligence on the part of the R1 who was driving Mini Bus bearing registration no. DL1V7153, transferred to R1 owned by R2 and insured with R3? OPP.
2. Whether the petitioner is entitled to any compensation if so to what amount and from whom? OPP.
3. Relief.
7. In support of his claim, the petitioner has examined three witnesses i.e. himself as PW1, PW2 Dr. Shailendra Chandra Gupta, Ortho Specialist, ESI Hospital, Rohini, Delhi and PW3 Sh. Rajesh Kumar, Record Clerk, Sushruta Trauma Centre, Delhi. He closed his evidence through his counsel on 16.11.2017. On the other hand, the respondent nos. 1 & 2 did not examine any witness in their evidence. However, the respondent no. 3/insurance company has examined two witnesses i.e. R3W1 Sh. N.K. Bansal, AO, National Insurance Company Limited and R3W2 Sh. Manoj, UDC from STA Branch, Transport Department, Delhi and closed evidence on 10.09.18 through its counsel.
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8. I have heard the arguments addressed by Ld. counsels for the parties. I have also gone through the record. My findings on the issues are as under: ISSUE NO. 1.
9. For the purpose of this issue, the testimony of PW1 Sh. Ravinder Babu Sharma (injured in the present case) is relevant. He deposed in his evidence by way of affidavit(Ex. PW1/A) that on 07.05.2014, he was coming on his cycle after delivering newspaper in the inner gali. At about 7:00 am when he reached at Gali No. 12, 20 Futa Road, Mukundpur, Part II, Delhi, one Bus bearing registration no. DL1V7153 while being driven at high speed and in rash and negligent manner, came from behind and hit against his aforesaid cycle. As a result thereof, he fell down on the road and sustained grievous injuries and fracture on both the legs and abrasion all over the body. He was taken to Sushruta Trauma Centre, where he was medically examined vide MLC No. 186998. FIR No. 237/14, U/s 279/337 IPC was registered at PS. Bhalaswa Dairy with regard to the said accident. He categorically deposed that accident took place due to rash and negligent driving of aforesaid Bus driven by respondent no. 1. He has relied upon DAR Ex. PW1/1(colly). He was not crossexamined by any of the respondents on this aspect at all.
10. It is evident from the testimony of PW1 that the respondents could not impeach his testimony through litmus test of crossexamination Ravinder Babu Sharma Vs. Hemant Kumar Mehta & Ors. Page 5 of 22 MACP No.4271/16 FIR No. 237/14; PS. Bhalaswa Dairy DOD: 14.11.2019 and said witness is found to have successfully withstood the test of cross examination. Even otherwise, PW1 himself is the injured having sustained injuries due to the accident in question. There is no reason as to why he would depose falsely against respondent no.1. Moreover, FIR No. 237/14(which is part of DAR Ex. PW1/1 colly) is shown to have been registered on the statement of this witness. The contents of said FIR would show that the complainant has disclosed therein the same sequence of facts leading to the accident, as deposed by him as PW1 during the course of inquiry. Moreover, the respondents have not led any evidence to rebut the testimony of aforesaid witness on the aspect of accident in question being caused due to rash and negligent driving of Bus bearing no. DL1V 7153. Thus, there is no reason to disbelieve the uncontroverted testimony of this witness made on oath.
11. It is pertinent to note that the respondent no.1/driver of aforesaid Bus, was the other material witness to throw light by testifying as to how and under what circumstances, the accident had taken place. However, he has preferred not to enter into the witness box. Thus, an adverse inference is liable to be drawn against him to the effect that the accident in question occurred due to rash and negligent driving of Bus bearing no. DL1V7153 by him.
12. Not only this, the respondent no. 1 namely Hemant Kumar (accused in State case) has been charge sheeted for offences punishable Ravinder Babu Sharma Vs. Hemant Kumar Mehta & Ors. Page 6 of 22 MACP No.4271/16 FIR No. 237/14; PS. Bhalaswa Dairy DOD: 14.11.2019 U/s 279/338 IPC, 3/181 & 66/192 M.V. Act by the investigating agency after arriving at the conclusion on the basis of investigation carried out by it that the accident in question had occurred due to rash and negligent driving of offending Bus bearing registration no. DL1V7153 by him. Same would also point out towards rash and negligent driving of aforesaid Bus by respondent no. 1.
13. Apart from above, copy of MLC (which is part of DAR Ex. PW1/1 colly) of injured prepared at Sushruta Trauma Centre, shows that he had been removed to said hospital on 07.05.2014 at 7:40 AM with alleged history of RTA. On his local examination, he was found to have sustained multiple injuries as mentioned therein. The said injuries are consistent with the injuries which are sustained in motor vehicular accident. Again, there is no challenge to the said document from the side of respondents including insurance company.
14. In view of the aforesaid discussion and the evidence which has come on record, it is held that the petitioner has been able to prove on the basis of pre ponderence of probabilities that he had sustained grievous injuries in road accident which took place on 07.05.2014 at about 7:00 am at Gali No. 12, 20 Futa Road, Mukundpur, Part II, Delhi, due to rash and negligent driving of Bus bearing no. DL1V7153 by respondent no. 1. Thus, issue no. 1 is decided in favour of petitioner and against the respondents.
Ravinder Babu Sharma Vs. Hemant Kumar Mehta & Ors. Page 7 of 22MACP No.4271/16 FIR No. 237/14; PS. Bhalaswa Dairy DOD: 14.11.2019 ISSUE NO. 2.
15. Section 168 of the Act enjoins the Claims Tribunal to hold an inquiry into the claim to make an award determining the amount of compensation which appears to it to be just and reasonable. It has to be borne in mind that the compensation is not expected to be a windfall or a bonanza nor it should be niggardly.
MEDICAL EXPENSES
16. PW1 Sh. Ravinder Babu Sharma i.e. injured himself, has deposed in his evidence by way of affidavit (Ex. PW1/A) that after the accident, he was taken to Sushruta Trauma Centre, Delhi, where he was medically examined and got operated for both the legs and a rod and plate were inserted. He deposed to have spent Rs. 2,00,000/ on medical treatment, medicines, special diet, conveyance and attendant charges etc. During his crossexamination on behalf of insurance company, he denied the suggestion that he had spent Rs. 2 lacs on his treatment and medicines. Respondents no. 1 & 2 did not crossexamine this witness.
17. It is relevant to note that the injured has relied upon medical bills to the tune of Rs. 7,531/ only, which are part of DAR Ex. PW1/1 (colly). It is quite evident that the respondents have not disputed the authenticity and genuineness of the said medical bills during the course of Ravinder Babu Sharma Vs. Hemant Kumar Mehta & Ors. Page 8 of 22 MACP No.4271/16 FIR No. 237/14; PS. Bhalaswa Dairy DOD: 14.11.2019 inquiry. They have also not led any evidence in rebuttal so as to create any doubt on the genuineness of said bills. Accordingly, a sum of Rs. 7,531/ is awarded to the petitioner under this head.
LOSS OF INCOME
18. Injured namely Sh. Ravinder Babu Sharma (PW1) has categorically deposed in his evidence by way of affidavit(Ex PW1/A) that he was earning Rs. 25,000/ per month at the time of accident. During his cross examination on behalf of insurance company, he deposed that he was newspaper supplier and he relied upon certificate in this regard issued by Azadpur Wender Association. He denied the suggestion that the said certificate was forged and fabricated.
19. PW2 Dr. Shailendra Chandra Gupta, Ortho Specialist, ESI Hospital, Rohini, Delhi has produced the treatment record of patient namely Ravinder Sharma. He deposed that said patient was admitted in their hospital on 30.05.2014 with history of post traumatic wound on left thigh and abcess (I & D done). He further deposed that the said patient had earlier received treatment from Sushruta Trauma Centre and he remained under his treatment in ESI Hospital upto 13.06.14. He exhibited the said record as Ex. PW2/1(colly). He deposed that on the basis of medical treatment record of said patient, he had sustained fracture of tibia and fibula of right leg and his interlocking nail was done at Sushruta Trauma Centre.
Ravinder Babu Sharma Vs. Hemant Kumar Mehta & Ors. Page 9 of 22MACP No.4271/16 FIR No. 237/14; PS. Bhalaswa Dairy DOD: 14.11.2019 He further deposed that apart from said injuries, there was abcess(Pus) at left thigh and that is why, incision & Drainage (I&D) was done by concerned treating doctor of Trauma Centre. He deposed that the patient had been admitted in their hospital and during the course of treatment, debridement of nacrotic(dead tissues) was removed and dressing was done on 11.06.14. He also deposed that wound was healthy and planned for skin grafting. However, skin grafting was not done as he was not given preanaesthetic clearance. He was not crossexamined by any of the respondents.
20. PW3 Sh. Rajesh Kumar, Record Clerk of Sushruta Trauma Centre, has produced the medical treatment record of patient/injured Ravinder Sharma. He deposed that said patient was admitted in Trauma Centre on 07.05.14 with alleged history of RTA and was discharged on 12.05.14. He exhibited the said treatment record as Ex. PW3/1(colly). He further deposed that said patient was again got admitted in Trauma Centre on 20.05.14 and was discharged on 29.05.14. He exhibited the treatment record in that regard as Ex. PW3/2(colly). He was not crossexamined by any of the respondents.
21. The treatment record as produced by aforesaid two witnesses, would show that the petitioner was admitted in ESI Hospital, Rohini on 30.05.14 and was discharged on 13.06.14, as per discharge summary (which is part of Ex. PW2/1 colly). The treatment record of injured was done in Sushruta Trauma Centre w.e.f. 07.05.14 to 12.05.14 and 20.05.14 to Ravinder Babu Sharma Vs. Hemant Kumar Mehta & Ors. Page 10 of 22 MACP No.4271/16 FIR No. 237/14; PS. Bhalaswa Dairy DOD: 14.11.2019 29.05.14 is proved as Ex. PW3/1 and Ex. PW3/2 colly. Apart from aforesaid documents produced by PW2 & PW3, the petitioner has failed to file any other medical treatment record in order to show the exact period upto which he had received the medical treatment. Nevertheless, it can not be overlooked that the petitioner had suffered fracture of tibia and fibula of right leg and his interlocking nail was done at Sushruta Trauma Centre. Considering the nature of injuries sustained by petitioner and in view of ocular testimonies of the witnesses available on record, it is presumed that he would not have been able to work at all atleast for a period of four months or so.
22. Apart from the bald statement made by PW1 Ravinder Babu Sharma that he was earning Rs. 25,000/per month, no definite evidence whatsoever has been brought on record to prove his monthly income at the time of accident in question. It may be noted here that the petitioner has failed to file any document concerning his educational qualification. In these circumstances, the minimum wages of an unskilled worker under Minimum Wages Act during the period in question, has to be taken into consideration. The minimum wages of an unskilled worker were Rs. 8,554/ per month as on the date of accident which is 07.05.2014. Thus, a sum of Rs. 34,216/ (Rs. 8,554/ x 4) is awarded in favour of petitioner under this head and against the respondents.
Ravinder Babu Sharma Vs. Hemant Kumar Mehta & Ors. Page 11 of 22MACP No.4271/16 FIR No. 237/14; PS. Bhalaswa Dairy DOD: 14.11.2019 PAIN AND SUFFERING
23. Hon'ble Delhi High Court in the matter titled as " Vinod Kumar Bitoo Vs. Roshni & Ors." passed in appeal bearing no. MAC.APP 518/2010 decided on 05.07.12, has held as under: " It is difficult to measure the pain and suffering in terms of money which is suffered by a victim on account of serious injuries caused to him in a motor vehicle accident. Since the compensation is required to be paid for pain and suffering an attempt must be made to award compensation which may have some objective relation with the pain and suffering underwent by the victim. For this purpose, the Claims Tribunal and the Courts normally consider the nature of injury; the part of the body where the injuries were sustained, surgeries, if any, underwent by the victim, confinement in the hospital and the duration of treatment".
24. Injured himself as PW1 has deposed in his evidence by way of affidavit(Ex PW1/A) that he had sustained grievous injuries in the accident in question. He had sustained fracture of tibia and fibula of right leg and his interlocking nail was done at Sushruta Trauma Centre. Thus, he would have undergone great physical sufferings and mental shock on account of the accident in question. Keeping in view the medical treatment record of petitioner available on record and the nature of injuries suffered by him, I hereby award a sum of Rs. 40,000/ towards pain and sufferings to the petitioner.
Ravinder Babu Sharma Vs. Hemant Kumar Mehta & Ors. Page 12 of 22MACP No.4271/16 FIR No. 237/14; PS. Bhalaswa Dairy DOD: 14.11.2019 LOSS OF GENERAL AMENITIES & ENJOYMENT OF LIFE
25. As already mentioned above, there is sufficient evidence on record to establish that the petitioner had sustained fracture of tibia and fibula of right leg and his interlocking nail was done at Sushruta Trauma Centre. Thus, he would not be able to enjoy general amenities of life after the accident in question, during rest of his life and his quality of life has been definitely affected. In view of the nature of injuries suffered by him, I award a notional sum of Rs. 50,000/ towards loss of general amenities and enjoyment of life to the petitioner.
CONVEYANCE & SPECIAL DIET
26. Although, the petitioner/injured as PW1 has deposed in his evidence by way of affidavit (Ex. PW1/A) that he had spent considerable amount on conveyance and special diet but he has failed to lead any cogent evidence on record in this regard. At the same time, it cannot be overlooked that he had sustained fracture of tibia and fibula of right leg and his interlocking nail was done. Thus, he would have taken special rich protein diet for his speedy recovery and would have also incurred considerable amount towards conveyance charges while commuting to the concerned hospital as OPD patient for his regular check up & follow up during the period of his medical treatment. In these facts and circumstances, I hereby award a notional sum of Rs. 10,000/ for conveyance charges and a sum of Rs. 10,000/ for special diet.
Ravinder Babu Sharma Vs. Hemant Kumar Mehta & Ors. Page 13 of 22MACP No.4271/16 FIR No. 237/14; PS. Bhalaswa Dairy DOD: 14.11.2019 Thus, the total compensation is assessed as under:
1. Medical Expenses Rs. 7,531/
2. Loss of income Rs. 34,216/
3. Pain and suffering Rs. 40,000/
4. Loss of general amenities and Rs. 50,000/ enjoyment of life
5. Conveyance, special diet and Rs. 20,000/ attendant charges Total Rs. 1,51,747/ Rounded off to Rs. 1,52,000/
27. This brings me down to the next question as to whether insurance company has been able to prove the statutory defence raised by it in its written statement, wherein it has claimed that respondent no. 1 was not having any valid and effective DL at the time of accident in question and the offending Bus was being driven without any valid permit for State of Delhi. In order to substantiate the said plea, the insurance company has examined Sh. N.K. Bansal, Administrative Officer of National Insurance Company Limited as R3W1 and R3W2 Sh. Manoj, UDC from STA Branch, Transport Department.
28. R3W1 has deposed in his evidence by way of affidavit (Ex. R3W1/A) that as per investigation of IO, the driver/R1 was driving the alleged offending vehicle without DL and permit at the time of accident. He exhibited the verification report of DL of respondent no. 1 as Ex. R3W1/2 Ravinder Babu Sharma Vs. Hemant Kumar Mehta & Ors. Page 14 of 22 MACP No.4271/16 FIR No. 237/14; PS. Bhalaswa Dairy DOD: 14.11.2019 and permit report as Ex. R3W1/3. He further deposed that despite service of notice u/o 12 Rule 8 CPC, the respondents no. 1 & 2 did not provide copy of valid and effective DL and permit in respect of vehicle no. DL1V 7153 as on the date of accident i.e. 07.05.2014 and valid and effective DL in favour of R1. Thus, insurance company is not liable to pay any compensation to the petitioner. He exhibited copy of insurance policy for aforesaid vehicle for the period in question as Ex. R3W1/1, office copy of notice u/o 12 Rule 8 CPC as Ex. R3W1/4 & Ex. R3W1/5 and its postal receipts as Ex. R3W1/6 & Ex. R3W1/7. During his crossexamination on behalf of petitioner, he admitted that vehicle i.e. Mini Bus No. DL1V7153 was duly insured with National Insurance Co. Ltd in the name of Ms. Anju Bhatia for the period in question. He further admitted that he had not filed any proof of delivery of said notice upon driver and registered owner and that is why, he could not say as to whether the said notice was actually served upon driver and / or registered owner or not. Respondents no. 1 & 2 did not crossexamine this witness.
29. R3W2 Sh. Manoj, UDC from STA Branch produced the record i.e. details of permit of vehicle registration no. DL1V7153, issued by their office in the name of Ms. Anju Bhatia W/o Sh. Vivek Bhatia having validity w.e.f. 04.05.13 to 02.02.14 and exhibited the same as Ex. R3W2/1. He deposed that as per their record, the same was the last renewal of the permit of aforesaid vehicle. He was not crossexamined by respondents no. 1 & 2.
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30. Firstly, I shall deal with the plea that there was no valid and effective DL in favour of R1. According to verification report of RC(which is part of Ex. R3W1/3), the registered owner of offending vehicle i.e. Mini Bus bearing registration no. DL1V7153 was Smt. Anju Bhatia, W/o Sh. Vivek Bhatia.
31. As already noted above, respondent no. 1/driver himself did not enter into witness box during the course of enquiry and he has failed to produce any valid DL in his favour as on the date of accident in question. Moreover, copy of chargesheet(which is part of DAR Ex. PW1/1 colly) filed in State case arising out of FIR No. 237/14 supra, would clearly show that respondent no. 1/driver namely Hemant Kumar has also been chargesheeted for offence punishable u/s. 3/181 M.V. Act by investigating agency after conclusion of the investigation that respondent no. 1 was not having any valid and effective DL at the time of accident. Copy of said chargesheet is also part of DAR, which carries presumption of genuineness of its contents as provided in Rule 7 of Delhi Motor Accident Claim Tribunal Rules, 2008. Even otherwise, none of the parties including respondent no. 1 has disputed the said document throughout the enquiry. Hence, I find substance in the submission made on behalf of insurance company that had there been any valid DL in favour of respondent no. 1 to drive the type of vehicle like the present one, copy thereof would have been provided by him to the police but no such copy of DL has been filed alongwith DAR or any valid DL in favour of R1 has been produced during Ravinder Babu Sharma Vs. Hemant Kumar Mehta & Ors. Page 16 of 22 MACP No.4271/16 FIR No. 237/14; PS. Bhalaswa Dairy DOD: 14.11.2019 the course of inquiry. Moreover, the entire testimony of R3W1 has gone unchallenged from the side of respondents. Hence, it is held that due to aforesaid reasons, there was violation of terms and conditions of insurance policy on the part of insured.
32. This brings me down to the next plea raised on behalf of insurance company that there was not valid and effective permit in respect of Bus no. DL1V7153 for the State of Delhi as on the date of accident in question. As already discussed above, the insured i.e. respondent no. 2 preferred to stay away from the proceedings and has not filed any WS/Reply. He has failed to file or produce any valid and effective permit for the aforesaid vehicle throughout the inquiry and even after being served with notice u/o 12 Rule 8 CPC by insurance company through its counsel. However, the Investigating Officer has filed permit verification report (Ex. R3W1/3). As per said verification report, the said permit was valid from 04.05.13 to 02.02.14. The date of accident in the present case is 07.05.2014. Hence, I find substance in the submission made on behalf of insurance company that offending vehicle was being driven without any valid permit at the time of accident. The entire testimony of R3W1, has gone unchallenged from the side of driver and registered owner.
33. At this juncture, it would be relevant to refer to the provision contained in Section 66 (1) of M.V Act which read as under: Necessity for Permits:(1) No owner of a motor vehicle shall use or permit the use of Ravinder Babu Sharma Vs. Hemant Kumar Mehta & Ors. Page 17 of 22 MACP No.4271/16 FIR No. 237/14; PS. Bhalaswa Dairy DOD: 14.11.2019 the vehicle as a transport vehicle in any public place whether or not such vehicle is actually carrying any passengers or goods save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or any prescribed authority authorising him the use of the vehicle in that place in the manner in which the vehicle is being used.
34. It is quite clear from the bare perusal of the aforesaid provision that transport vehicle cannot be used in any public place, whether or not such vehicle is actually carrying any passengers or goods, save in accordance with the conditions of a permit granted by Regional or State Transport Authority. Thus, there is clear violation of the terms and conditions of the insurance policy for want of valid permit in respect of offending vehicle for State of Delhi as on the date of accident.
35. In view of the aforesaid discussion, I am of the considered opinion that for want of valid and effective driving licence in favour of respondent no. 1 Hemant Kumar and valid permit in respect of offending Bus no. DL1V7153 as on date of accident for State of Delhi, being proved on record, it would be termed as breach in the terms and conditions of insurance policy on the part of insured i.e. respondent no. 2. Thus, insurance company is entitled to recovery rights against respondent no. 2. (Reliance placed on decision dated 26.09.2017 in FAO no.7555/2015 in the matter titled as "MS Middle High School and another Vs. Usha and Ravinder Babu Sharma Vs. Hemant Kumar Mehta & Ors. Page 18 of 22 MACP No.4271/16 FIR No. 237/14; PS. Bhalaswa Dairy DOD: 14.11.2019 others" by Hon'ble High Court of Punjab and Haryana and as upheld by Hon'ble Apex Court in SLP no.31406/2017 titled as "MS Middle High School Vs. HDFC ERGO General Insurance Company Ltd. & others"
decided on 22.11.2017). Issue no. 2 is decided accordingly.
ISSUE NO. 3 RELIEF
36. In view of the aforesaid discussion, I award compensation of Rs. 1,52,000/ alongwith interest @ 9% per annum in favour of petitioner and against the respondents w.e.f. date of filing of the petition i.e. 03.11.14 till the date of its realization (Reliance placed on judgment "Oriental Insurance Company Ltd. Vs. Sangeeta Devi & Ors bearing MAC. APP. 165/2011 decided on 22.02.2016). However, insurance company/R3 shall be entitled to recover the said amount from respondent no. 2 Smt. Anju Bhatia in accordance with law.
APPORTIONMENT
37. Statement of petitioner in terms of Clause 29 MCTAP was recorded on 19.08.2019. Having regard to the facts and circumstances of the case and in view of the said statement, it is hereby ordered that out of the award amount, a sum of Rs. 50,000/ (Rupees Fifty Thousand Only)shall be immediately released to the petitioner through his saving bank account no. 4810001700119200 with Punjab National Bank, VPO Ravinder Babu Sharma Vs. Hemant Kumar Mehta & Ors. Page 19 of 22 MACP No.4271/16 FIR No. 237/14; PS. Bhalaswa Dairy DOD: 14.11.2019 Mukundpur, Delhi, having IFSC Code PUNB0481000 and remaining amount alongwith interest amount be kept in the form of FDRs in the multiples of Rs. 10,000/ each for a period of one month, two months, three months and so on and so forth, having cumulative interest.
38. The FDRs to be prepared as per the aforesaid directions, shall be subject to the following directions:
(a) The Bank shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the claimant(s) i.e. the savings bank account(s) of the claimant(s) shall be an individual savings bank account(s) and not a joint account(s).
(b) The original fixed deposit shall be retained by the bank in safe custody. However, the statement containing FDR number, FDR amount, date of maturity and maturity amount shall be furnished by bank to the claimant(s).
(c) The monthly interest be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant(s) near the place of their residence.
(d) The maturity amounts of the FDR(s) be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant(s) near the place of their residence.
(e) No loan, advance, withdrawal or premature discharge be allowed on the fixed deposits without permission of the Court.
(f) The concerned bank shall not to issue any cheque book and/or debit card to claimant(s). However, in case the debit card and /or cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount. The bank shall debit card(s) freeze the account of the claimant(s) so that no debit card be issued in respect of the Ravinder Babu Sharma Vs. Hemant Kumar Mehta & Ors. Page 20 of 22 MACP No.4271/16 FIR No. 237/14; PS. Bhalaswa Dairy DOD: 14.11.2019 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 alongwith the duly signed and stamped by the bank official on the passbook(s) of the claimant(s) is sufficient compliance of clause(g) above.
(i) The petitioner is directed to open a Motor Accident Claims Annuity (Term) Deposit Account (MACAD) in terms of order dated 07.12.2018 of Hon'ble Justice J.R. Midha in case titled as Rajesh Tyagi and Others Vs. Jaibir Singh and Others F.A.O No. 842/03 as per clause 31 of MCTAP and form VIII titled as Motor Accident Claims Annuity Deposit (MACAD) Scheme as directed in the said order.
(j) Concerned Manager, SBI, Rohini Court branch is further directed to disburse the FD amount in Motor Accident Claims Annuity Deposit (MACAD) Scheme account as directed by Hon'ble Delhi High Court vide order dated 07.12.18, on completing necessary formalities as per rules.
39. The respondent no. 3 are directed to deposit the award amount with SBI, Rohini Courts branch within 30 days as per above order. Concerned Manager, SBI, Rohini Court Branch is directed to transfer the amount of Rs. 50,000/ immediately to petitioner in the aforesaid saving bank account mentioned supra, on completing necessary formalities as per rules. He be further directed to keep the said amount in fixed deposit in its own name till the claimant approaches the bank for disbursement so that the award amount starts earning interest from the date of clearance of the Ravinder Babu Sharma Vs. Hemant Kumar Mehta & Ors. Page 21 of 22 MACP No.4271/16 FIR No. 237/14; PS. Bhalaswa Dairy DOD: 14.11.2019 cheques. Copy of the award be given dasti to the petitioner and also to counsel for the insurance company alongwith original Form No. 15H of claimant (after retaining photocopy thereof on record) for compliance. Copy of this award alongwith one photograph, specimen signature, copy of bank passbook and copy of residence proof of the petitioner, be sent to Nodal Officer of SBI, Rohini Court, Branch, Delhi for information and necessary compliance. Form IV B & Form V in terms of MCTAP is annexed herewith as AnnexureA. Copy of order be also sent to concerned Ld. Metropolitan Magistrate and District State Legal Service Authority (North) as per clause 31 and 32 of MCTAP.
Announced in the open Court on 14.11.2019 (DEVENDER KUMAR JANGALA) Judge MACT2 (North) Rohini Courts, Delhi Certified that above award contains 22 pages andDigitally each page is signed by DEVENDER DEVENDER KUMAR signed by me. KUMAR JANGALA Date: 2019.11.16 JANGALA 10:40:36 +0530 (DEVENDER KUMAR JANGALA) Judge MACT2 (North) Rohini Courts, Delhi Ravinder Babu Sharma Vs. Hemant Kumar Mehta & Ors. Page 22 of 22