Delhi District Court
Also At: Village Dhadauli Khurd vs Shiv Lal Yadav S/O Sh. Jai Ram Yadav on 23 October, 2017
IN THE COURT OF MS. SANTOSH SNEHI MANN,
JUDGE, MOTOR ACCIDENT CLAIMS TRIBUNAL02, WEST DISTRICT,
TIS HAZARI COURTS, DELHI
Petition No.: 76363/2016
Sh. Halim S/o Isav
R/o H. No. 44/2, Village Hasanpur Bilonda,
Tehsil Firozpur Jhirka,
Old District Gurgaon, New District Nuhun,
Haryana.
Also at: Village Dhadauli Khurd,
Mewat, Haryana.
(Injured) .......... Petitioner
Versus
1. Shiv Lal Yadav S/o Sh. Jai Ram Yadav,
R/o Village Narehara, PS Kotputli,
District Jaipur, Rajasthan.
(Owner)
2. Dinesh Kumar Yadav S/o Sh. Shiv Lal Yadav,
R/o VPO Narheda, PS Kotputli,
District Jaipur, Rajasthan.
(Driver)
3. The Oriental Insurance Company Limited
A25/27, Asaf Ali Road, New Delhi.
Regional office at 3rd Floor, Ansal Bhawan,
Sansar Chander Road, Jaipur, Rajasthan.
(Insurer) .......... Respondents
Date of Institution : 18.04.2012
Arguments heard on : 23.10.2017
Judgment pronounced on : 23.10.2017
AWARD:
1. This is a claim petition for compensation under the provisions of the Motor Vehicles Act, 1988 (M. V. Act) filed by the petitioner Sh. Halim S/o Sh. Isav who suffered injuries in a vehicular accident on 26.11.2007 with respect to which FIR No. 869/2007, under Section 279/337 IPC was Petition No.: 76363/16 Page No. 1 of 16 registered at Police Station Rajouri Garden and chargesheet has been filed under Section 279/338 IPC against Dinesh Yadav (Respondent No.2), driver of TATA Truck bearing No. RJ32GA1846 (Offending Vehicle).
2. Certified copies of criminal proceedings have been filed by the petitioner including FIR, Chargesheet, siteplan, RC, insurance policy of the offending vehicle, driving license of the driver and MLC of the injured.
3. Brief facts of the vehicular accident as averred in the Claim Petition and criminal proceedings are that on 26.11.2007 at about 12.30 AM at Rajouri Garden flyover, near Rajdhani College, Delhi, petitioner was travelling in Tempo TATA 407 no. HR55B6475 as carrier of goods, when the Tempo dashed on the rear side of Truck No. RJ32GA1846 (offending vehicle) due to sudden breaks applied by the driver of the truck after overtaking the Tempo. Consequently, petitioner suffered injuries. Allegedly, the offending vehicle was driven in a rash and negligent manner by Dinesh Yadav (Respondent No. 2). Shiv Lal Yadav (Respondent No. 1) is the registered owner of the vehicle, which was insured with The Oriental Insurance Company Limited (Respondent No. 3).
4. In the joint written statement filed by the respondents no. 1 & 2, it is claimed that neither the respondent no. 1 is the owner of the vehicle TATA 709 no. RJ32GA1846, nor respondent no. 2 was driving this vehicle at the time of accident. It is denied that any accident was caused due to rash and negligent driving of respondent no. 2 in which the petitioner was injured.
5. In the written statement filed by respondent No. 3/Insurance Company, it is admitted that the vehicle no. RJ32GA1846 was insured with the insurance company vide policy no. 241100/31/2007/4025 w.e.f 24.11.2006 to 28.11.2007 issued in the name of Sh. Shiv Dayal Yadav. However, it is claimed that the insurer will not be able to pay until and unless it is proved that the driver of the vehicle was holding a valid driving license at the time of accident. Petition is also contested on the ground of Petition No.: 76363/16 Page No. 2 of 16 nonjoinder and misjoinder of necessary parties i.e. driver, owner and insurer of the Tempo in which injured was travelling for contributory negligence of the driver of Tempo.
6. From the pleadings of the parties, contentions raised and material on record, the following issues were framed by ld. Predecessor vide order dated 04.07.2013:
1. Whether the petitioner suffered injuries in an accident that took place on 26.11.2007 at 12.30 PM involving vehicle bearing no. RJ32GA1846 (TATA
704) driven by the respondent no. 1, owned by the respondent no. 2 and insured with the respondent no. 3? OPP.
2. Whether the petitioner is entitled for compensation?
If so, to what amount and from whom ?
3. Relief
7. Petitioner Halim has examined himself as PW1 and has deposed on affidavit Ex. PW1/A. He has filed certified copies of the criminal case collectively as Ex. PW1/2 (13 pages).
8. Respondent No. 1 Shiv Lal Yadav has examined himself as R1W1 and has deposed on affidavit Ex. R1W/A. He has relied on the certified copy of the RC of the vehicle no. RJ32GA1846 as Ex. R1W1/1, certified copy of the cover note of the insurance policy as Ex. R1W1/2 and has filed photocopy of his election Icard as Ex. R1W1/3.
9. Respondent No. 2 Dinesh Kumar Yadav has examined himself as R2W1 and deposed on affidavit Ex. R2W1/A.
10. Respondent no. 3/Insurance Company has examined Sh. K. K. Sharma, Administrative Officer as R3W1.
11. Petitioner Halim has also been examined under Clause 26 of Modified Claims Tribunal Agreed Procedure (MCTAP).
12. I have heard the counsels for the parties and have carefully perused the record.
Petition No.: 76363/16 Page No. 3 of 1613. My findings on the issues are as under:
Issue No. 1:
Whether the petitioner suffered injuries in an accident that took place on 26.11.2007 at 12.30 PM involving vehicle bearing no. RJ32GA1846 (TATA704) driven by the respondent no. 1, owned by the respondent no. 2 and insured with the respondent no. 3? OPP.
In a claim petition under Section 166 of the M. V. Act, onus is on the claimant/petitioner to prove that he or she suffered injuries in a vehicular accident caused by the wrongful act or negligence of the driver of the offending vehicle.
14. Petitioner Halim has testified as PW1 and has deposed on the affidavit (Ex. PW1/A) that on 26.11.2007 he along with his brother was travelling in Tempo TATA407 bearing registration no. HR55B6475 for going to Azadpur Mandi to sell onions and when the vehicle reached near Rajdhani college, in front of Rajouri Garden flyover, suddenly the offending vehicle bearing no. RJ32GA1846, driven by respondent no. 2 at a very high speed overtook the Tempo in which the petitioner was travelling without blowing any horn in a rash and negligent manner and suddenly applied breaks as a result of which the Tempo in which petitioner was travelling dashed in the offending vehicle. It is further deposed that due to the accident, petitioner suffered grevious injuries on his right leg and other body parts. He was rushed to the DDU Hospital where he remained under treatment for two years.
15. PW1 has not been crossexamined by the respondents no. 1 & 2 despite being given opportunity.
16. In the crossexamination of PW1 by the Counsel for respondent no.3/Insurance company, he stated that he was sitting in the cabin and admitted that vehicle in which he was travelling had hit on the backside of the offending vehicle. PW1 clarified that the offending vehicle had applied sudden breaks after overtaking the vehicle in which he was travelling and denied the suggestion that the driver of the vehicle Petition No.: 76363/16 Page No. 4 of 16 no. HR55B6475 was driving the vehicle in rash and negligent manner. PW1 stated that name of the driver of the offending vehicle is Dinesh and denied the suggestion that he did not cause the accident. He further stated that he along with Harun was going to Azadpur Mandi for selling goods/onions and admitted that his name is not mentioned in the FIR.
17. It is a settled legal position that while deciding a petition under Section 166 of the M. V. Act, the Claims Tribunal has to decide negligence on the touch stone of preponderance of probabilities. Reference in this regard is made to the observations of the Hon'ble Supreme Court of India in Kaushnumma Begum and Others vs. New India Assurance Company Limited, 2001 ACJ 421 SC, wherein it was held that the issue of wrongful act or omission on the part of the driver of motor vehicle involved in the accident is of secondary importance and mere use or involvement of motor vehicle in causing bodily injuries or death to a human being or damage to property would make the petition maintainable under Section 166 & 140 of the M. V. Act.
18. Nevertheless, it is also a settled legal position that in a claim petition under Section 166 of the M. V. Act, burden is on the claimants/petitioners to prove negligence. The law to this effect declared in Minu B. Mehta Vs. Balkrishna Ramchandra Nayan (1977) 2 SC 441 was reiterated by the Supreme Court in Oriental Insurance Company Limited Vs. Meena Variyal 2007 (5) SCC 428, which has been followed by Hon'ble High Court of Delhi in New India Assurance Co. Ltd. Vs. Devki & Ors., MAC APP 165/2013 decided on 29.02.2016.
19. Certified copies filed on record by the petitioner include the copies of FIR, chargesheet, MLC of the injured & Site Plan. These documents are admissible in evidence and deemed to be correct under Rule 7 of the Motor Accidents Claims Tribunal Rules, 2008 until proved to be contrary. Certified copies have not been challenged or controverted by any of the respondents.
20. Respondent no. 1 has testified as R1W1 and has deposed on affidavit Petition No.: 76363/16 Page No. 5 of 16 (Ex. R1W1/A) that he is not the owner of the offending vehicle bearing no. No. RJ32GA1846 TATA709 and that he is the actual owner of the vehicle no. RJ32GA1846 Ashok Leyland 1112 (Truck Heavy Open). He has relied on the certified copy of the Registration Certificate (Ex. R1W1/1), which is filed by the petitioner along with certified copies of the criminal record, collectively as Ex. PW1/2.
21. In the crossexamination by the counsel for the petitioner, R1W1 stated that at the time of accident, vehicle was driven by his son Dinesh. He admitted that his truck was seized by the police and was released on superdari by the Court order. R1W1 stated that his truck is used for commercial purposes and his son Dinesh was driving the vehicle without his consent.
22. Respondent no. 2 Dinesh Kumar Yadav has testified as R2W1 and has deposed on affidavit Ex. R2W1/A on the lines of R1W1 Shiv Lal Yadav that on the date of accident he was driving the vehicle bearing no. RJ 32GA1846 Ashok Leyland 1112 and not the vehicle bearing no. RJ 32GA1846 TATA 709. It is denied the vehicle registration no. RJ32GA 1846 Ashok Leyland 1112 had hit the vehicle no. HR55B6475 and claimed that it has been falsely implicated.
23. In the crossexamination by the counsel for the petitioner, R2W1 stated that at the time of accident, he was driving the truck bearing no. RJ32GA 1846 Ashok Leyland 1112 which was not involved in any accident. He denied the suggestion that accident took place due to his rash and negligent driving and claimed that he was not arrested by the police. He admitted that his father is the owner of the truck bearing no. RJ32GA 1846 Ashok Leyland 1112 which was released on superdari. He also admitted the fact that on the night of 26.11.2007 he was driving this truck and had passed from Rajouri Garden flyover.
24. In the crossexamination by the counsel for the insurance company, R2W1 admitted the copy of the driving licence filed on record by the insurance company as R3W1/3 and stated that he has no other driving Petition No.: 76363/16 Page No. 6 of 16 licence. He denied the suggestion that the driving licence was not valid to drive the truck.
25. According to the certified copies of the FIR filed on record by the petitioner, FIR was registered on the statement of Abdul Siwan, driver of TATA407 no. HR55B6475 in which petitioner was travelling. Registration number of the offending vehicle is mentioned in the FIR as RJ32GA1846 along with name of its driver as Dinesh Kumar (Respondent No. 2). Respondents no. 1 & 2 have desperately tried to make up the defence that according to the FIR, the vehicle which caused the accident was -709 whereas the vehicle driven by respondent no. 2 and owned by respondent no.1 was Ashok Leyland.
26. Registration number of any vehicle is crucial for its identity. Though, eye witness has mentioned the offending vehicle as 709 in a layman's langage, he has given the registration number very specifically. Certified copies of the criminal proceedings and deposition of the petitioner (PW1) in the affidavit about identity of offending vehicle & its driver has gone unrebutted.
27. Petitioner has deposed in the affidavit (Ex. PW1/A) that the offending vehicle no. RJ32GA1846 was driven at a very high speed by respondent no. 2 and his testimony about the identity of the offending vehicle and its driver has gone unrebutted by the respondent no. 1 & 2, who did not crossexamine PW1 despite being given opportunity, which has been corroborated by the FIR on these facts. Though, respondents no. 1 & 2 have taken plea of false implication, they have failed to substantiate their defence. Respondent no. 1, who is the registered owner of the offending vehicle has admitted in the crossexamination that his truck no. RJ32GA 1846 was seized by the police in the criminal case which was released to him on superdari.
28. The evidence on record proves that truck no. RJ32GA1846 was involved in the accident which was driven by respondent no. 2 at the time of accident and respondent no. 1 is the owner.
Petition No.: 76363/16 Page No. 7 of 1629. With respect to the manner of accident, it is deposed by the petitioner in the affidavit (Ex. PW1/A) that the accident was caused when the offending vehicle driven by the respondent no. 2 at a very high speed in a rash and negligent manner, overtook the vehicle in which the petitioner was travelling and applied sudden breaks, as a result of which the vehicle in which the petitioner was travelling dashed on the backside of the offending vehicle. The evidence of the petitioner as PW1 with respect to the manner of the accident has gone unrebutted by the respondent no. 1 & 2, who for the reasons best known to them have chosen not to cross examine the petitioner despite being given opportunity. Testimony of PW 1 is supported by the FIR and the site plan, certified copies of which have been filed by the petitioner and have not been challenged or rebutted by the respondents no. 1 & 2.
30. Testimony of PW1 about the manner of accident is trustworthy and nothing has come in the crossexamination to create any doubt about his deposition which is corroborated by the site plan and FIR. The fact that respondent no. 2 while driving the offending vehicle after overtaking the Tempo in which the petitioner was travelling applied sudden breaks as a result of which, the Tempo in which petitioner was travelling dashed on the rear side of the offending vehicle, shows rash and negligent conduct of the respondent no. 2 in driving the offending vehicle on the face of it.
31. According to the MLC of petitioner Halim, he was brought to DDU Hospital with the alleged history of Road Trafic Accident and nature of injury is mentioned as 'grievous'. MLC of the petitioner/injured has not been challenged by the respondents about the cause and nature of injury.
32. Since the MLC shows the history of injury as Road Traffic Accident, the fact that name of the petitioner is not mentioned in the FIR is inconsequential.
33. On the basis of evidence on record, above observations and discussion, it is established that the accident involving truck No. RJ32GA1846 (offending vehicle) took place due to rash and negligent driving of its Petition No.: 76363/16 Page No. 8 of 16 driver Dinesh Kumar Yadav (Respondent No. 2) and further that petitioner Halim suffered grievous injuries in the accident. Issue No. 1 is decided in favour of the petitioner and against the respondents.
34. Findings on Issue No. 2Whether the petitioner is entitled for compensation? If yes, what would be the amount and who would be liable to pay? Since the Issue No. 1 is decided in favour of the petitioner, he is entitled for the compensation.
35. In Raj Kumar vs. Ajay Kumar & Another (2011) 1 SCC 343, Hon'ble Supreme Court of India has laid down general principles for computation of compensation in injury cases. The relevant paras of the judgment are reproduced as under:
5 The provision of the Motor Vehicles Act, 1988 ("the Act", for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or the Tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned.
6 The heads under which compensation is awarded in personal injury cases are the following:
Pecuniary damages (special damages)
(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability
(iii) Future medical expenses.
Nonpecuniary damages (general damages) Petition No.: 76363/16 Page No. 9 of 16
(iv) Damages to pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage)
(vi) Loss of expectation of life (shortening of normal longevity). In routine personal injury cases, compensation will be awarded only under heads (i), (ii), (a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads
(ii), (b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life.
Expenses relating to treatment, hospitalization and medicines
36. Petitioner Halim (PW1) has deposed in the affidavit (Ex. PW1/A) that after the accident he rushed to the DDU Hospital where he remained under treatment for two years and spent more than Rs. 2 lacs on his treatment. According to the certified copy of the MLC of the petitioner, he was brought to the DDU Hospital with the alleged history of RTA on 26.11.2007. However, no treatment record of DDU Hospital or any other hospital is filed. Nature of injury is mentioned as grevious in the MLC but there are no bills filed on record. Though, it has come in the evidence of the petitioner that certified copies of the criminal case along with treatment record is filed collectively as Ex. PW1/2, the record filed does not include any record of DDU Hospital other than the MLC.
37. Considering the nature of injury which is grevious in nature, petitioner must have remained under treatment as OPD patient for at least three (03) months. Even if the treatment was taken in a government hospital, he must have incurred some out of pocket expenditure related to the treatment. Therefore, a notional sum of Rs. 5,000/ towards expenses relating to treatment & medicines would be just and fair compensation under this head.
Expenses towards Conveyance and Food (Special Diet)
38. According to the certified copy of the MLC filed on record, petitioner suffered grievous injury on his right leg. It has been assumed that he must Petition No.: 76363/16 Page No. 10 of 16 have remained under active treatment for 03 (three) months as an outdoor patient and thus, incurred expenditure for hospital visits during this period and also required special diet for speedy recovery.
39. In the facts and circumstances of this case, I am of the opinion that a lumpsum amount of Rs. 6,000/ (Rupees Six Thousand Only) towards Conveyance and Rs. 15,000/ (Rupees Fifteen Thousand Only) towards Special Diet would be just and fair compensation. Attendant Charges
40. Keeping in view the injury suffered by the petitioner, body parts involved, period of hospitalization and duration of treatment, he would have required assistance of a family member during the entire period of treatment for 03 (three) months.
41. In DTC vs. Lalit. AIR 1981 Delhi 558, Hon'ble High Court of Delhi has held that the victim is entitled to compensation even if no attendant is hired as some family member renders gratuitous services.
42. In United India Insurance Company Limited vs. Rama Swamy and Others, 2012 (2) T. A. C. 34 (Del.), value of gratuitous services rendered by a family member of the claimant has been assessed at Rs. 2,000/ per month.
43. In the facts and circumstances of the case, I am of the opinion that a lumpsum amount of Rs. 6,000/ (Rupees Six Thousand Only) would be just and fair compensation under this head.
Loss of earning during the period of treatment:
44. Petitioner has deposed in the affidavit (Ex. PW1/A) that he was earning Rs. 15,000/ per month from his agricultural business, however no evidence is led in support of his claim. There is no evidence or document on record to show educational qualification or professional skill of the petitioner. In the facts and circumstances, monthly income of the petitioner can be assessed on the basis of Minimum Wages Rate of an Unskilled Worker prevailing in Haryana at the time of accident as the petitioner is a resident of Haryana and it is not his claim that he worked in Petition No.: 76363/16 Page No. 11 of 16 Delhi. Accident took place on 26.11.2007 when the Minimum Wages Rate of an Unskilled Worker in Haryana was Rs. 3510/.
45. Accordingly, total loss of income suffered by her would be Rs. 10,530/ [Rs. 3510/ (Wages as on 24.11.2007) X 3 months].
NONPECUNIARY DAMAGES (GENERAL DAMAGES) Pain, Sufferings & Trauma
46.While discussing the criteria to ascertain the compensation for pain and sufferings by victim of vehicular accident, observations of Hon'ble High Court of Delhi in Satya Narain vs. Jai Kishan, FAO No: 709/02, date of decision: 02.02.2007 are as under:
12. On account of pain and suffering, suffice would it be to note that it is difficult to measure pain and suffering in terms of a money value.
However, compensation which has to be paid must bear some objectives corelation with the pain and suffering.
13. The objective facts relatable to pain and suffering would be:
(a) Nature of injury.
(b) Body part affected.
(c) Duration of the treatment.
47. Applying the above criteria to the facts of the present case where petitioner/injured has suffered grievous injuries, I am of the opinion that an amount of Rs. 35,000/ (Rupees Thirty Five Thousand Only) would be just and fair compensation for pain, sufferings and trauma suffered by the petitioner as consequences of injury. Computation of compensation:
48. The total compensation is assessed as under:
Sl. No. Heads Amount
1. Expenses relating to treatment and medicines 5000
2. Expenses towards Conveyance and Food (Special Diet) 21,000
3. Attendant Charges 6000
4. Loss of earning during the period of treatment 10,530
5. Pain, Sufferings & Trauma 35,000
Total 77530
Accordingly, total compensation is assessed as Rs. 77,530/, rounded Petition No.: 76363/16 Page No. 12 of 16 off to Rs. 78,000/ (Rupees Seventy Eight Thousand Only). Liability:
49. Respondent no. 2 Dinesh Kumar Yadav is liable to pay compensation being the driver of the offending vehicle i.e., Truck bearing Registration No. RJ32GA1846 as the accident took place due to his rash and negligent driving. Respondent no. 1 Sh. Shiv Lal Yadav is vicariously liable for the conduct of driver, being owner of the offending vehicle.
50. It is admitted by the Respondent No. 3/Insurance Company that the offending vehicle was duly insured vide Policy No. 241100/31/2007/4025 for the period from 24.11.2006 to 28.11.2007, including the date of the accident. However, liability is contested on the ground that the driver of the offending vehicle was not holding a valid driving license to drive the offending vehicle.
51. Respondent no. 3 has examined Sh. K. K. Sharma, Administrative Officer as R3W1, who has filed attested copy of the insurance policy as Ex. R3W1/1, verification report of the Investigator Sh. R. V. Singh as Ex. R3W1/2, photocopy of the driving licence of the respondent no. 2 as Ex. R3W1/3, receipt of fee deposited for verification as Ex. R3W1/4 and extract of driving licence issued by the Licensing authority/DTO Kotputli, Rajasthan as Ex. R3W1/5. R3W1 has testified that notice under Order XII Rule 8 CPC was given to the respondent no. 1 & 2 vide Ex. R3W1/6 and Ex. R3W1/9. He has filed the postal receipts as Ex. R3W1/7 & Ex. R3W1/10 and track record of the post as Ex. R3W1/8. R3W1 has testified that as per verification report of the investigator, driver/respondent no. 2 was not authorized to drive goods carrying commercial vehicle and despite service of the notices, respondent no. 1 & 2 did not furnish copy of the valid driving licence, permit and fitness of the vehicle.
52. R3W1 has not been crossexamined by the respondents no.1 & 2 despite being given opportunity.
53. Respondent no. 1 Shiv Lal Yadav, owner of the vehicle has testified as Petition No.: 76363/16 Page No. 13 of 16 R1W1 and has deposed on the affidavit Ex. R1W1/A. He has admitted the certified copy of the RC of the vehicle (Ex. R1W1/1). It has come in the crossexamination of R1W1 that his son Dinesh (Respondent No. 2) was driving the vehicle, though claimed that it was without his consent. This plea has come for the first time in the crossexamination of respondent no.1 with respect to which the written statement and affidavit is silent. Respondent no. 1 is the father of respondent no. 2. In the absence of any independent evidence, it cannot be believed that respondent no. 2 drove the vehicle without consent of respondent no. 1.
54. R2W1 has admitted in the crossexamination that Ex. R3W1/3 is the copy of his driving licence and that he did not have any other driving licence. He denied the suggestion that driving licence was not valid at the time of accident.
55. There is no dispute about the fact that the class of offending vehicle no. RJ32GA1846 is HCV i.e. Heavy Transport Vehicle, which is mentioned in the registration certificate filed on record (Ex. R1W1/1) and is admitted by respondent no. 1. It is also not disputed by the respondents no. 1 & 2 that respondent no. 2 (driver) was holding driving licence valid to drive light motor vehicle, a copy of which has been filed on record by the insurance company as Ex. R3W1/3 and is admitted by respondent no. 2 in his crossexamination. It is also admitted by the respondent no. 2 that he has no other driving licence except the one which has been filed on record. No other driving licence has been independently filed on record by the respondent no. 2.
56. The evidence on record shows that the vehicle involved in the accident was a Heavy Transport Vehicle, respondent no. 2 had a driving licence which was valid to drive a light motor vehicle. Different class of vehicles requires different skill to drive and thus need for driving licence to drive a particular class of vehicle. Therefore, respondent no. 2, who was driving offending vehicle bearing registration no. RJ32GA1846, a heavy transport vehicle, did not have the competence and skill to drive that class Petition No.: 76363/16 Page No. 14 of 16 of vehicle, resulting in breach of terms and conditions of insurance policy with respect to the driving licence.
57. The issue of liability of the Insurance Company towards third party even in case of breach of the terms of Insurance policy has been settled by the Hon'ble Supreme Court of India in Sohan Lal Passi Vs. P. Sesh Reddy (1996) 5 SCC 21) and National Insurance Company Vs. Swaran Singh & Ors (2004) 3 SCC 297. The settled legal position is that the liability of the Insurance Company visavis the third party is statutory and if the Insurance Company successfully proves the conscious breach of the terms of the policy, then it would be entitled to recovery rights against the owner or the driver as the case may be. Therefore, all the 03 (three) respondents are jointly and severally liable to pay compensation to the petitioner.
58. However, in view of the above legal position, liability of the respondent No. 3/Insurance Company to satisfy the Award in the first instance is statutory because the offending vehicle was duly insured to cover the third party risk. Since the driver of the offending vehicle did not have the Driving License to drive the offending vehicle at the time of accident, Respondent No. 3/Insurance Company will be entitled to recover the amount of compensation from the Respondents No. 1 & 2, by filing an execution petition in this very Award without having recourse to an inde pendent civil proceedings.
Relief
59. In view of the above findings on Issues No. 1 & 2, I award an amount of Rs. 78,000/ (Rupees Seventy Eight Thousand Only) as compensation to the petitioner. Petitioner is also entitled to interest @ 9% per annum from the date of filing of the petition i.e. 18.04.2012 till its realisation. Mode of payment and disbursement:
60. Respondent No. 3/Insurance Company shall deposit the award amount within 30 days from the date of Award in the State Bank of India, Tis Hazari Branch, Delhi in the name of the petitioner under intimation to the Petition No.: 76363/16 Page No. 15 of 16 petitioner and the Tribunal. In default of payment within the prescribed period, Insurance Company shall be liable to pay interest @ 12% p.a. for the period of delay till its realisation.
61. While making the deposit, Insurance Company shall mention the particulars of this case, name of the Tribunal and the date of decision on the back side of the cheque. Insurance Company shall also file copy of the award attested by its responsible officer in the bank at the time of deposit. Insurance Company is further directed to place on record proof of deposit of the award amount, proof of delivery of notice to the petitioner in respect of deposit of the award amount and complete details in respect of calculation of interest etc. in the Tribunal within 30 days with effect from today.
62. Petitioner shall open an account in State Bank of India, Tis Hazari Branch, Delhi. Manager of the Bank shall comply and release the award amount to the petitioner in terms of the Award.
63. Copy of the Award be given to the parties free of cost.
64. Copy of the Award be also sent to the Court of concerned Metropolitan Magistrate.
65. Nazir is directed to prepare a separate file for compliance and be put up on 01.12.2017.
66. File be consigned to Record Room.
Announced in the open Court (Santosh Snehi Mann)
on 23.10.2017 Judge, Motor Accident Claims Tribunal02,
ps West District, Tis Hazari Courts, Delhi
Petition No.: 76363/16 Page No. 16 of 16