Delhi District Court
Smt. Ishrat Jahan (Mother Of Deceased) vs Sh. Devender Chauhan on 13 November, 2018
MACP No. 5507/16; FIR No. 351/09; PS. S.P. Badli DOD: 13.11.2018
IN THE COURT OF SH. VIDYA PRAKASH, PRESIDING OFFICER,
MOTOR ACCIDENT CLAIMS TRIBUNAL, ROHINI COURTS, DELHI
MAC Petition No. 5507/16(Old MACP No. 128/14)
1. Smt. Ishrat Jahan (Mother of deceased)
W/o Sh. Abdul Rahim,
2. Sh. Abdul Rahim(Father of deceased)
S/o Late Abdul Hakeem,
Both R/o H.No. A78,
Hari Enclave Extension - 1,
Block A,
H.No. 9A to A911,
Kirari Suleman Nagar,
Delhi.
.......Petitioners
VERSUS
1. Sh. Devender Chauhan,
S/o Sh. Rishi Pal Chauhan,
R/o H.No. 36,
Mohan Adda Chowk,
Bhuran Pura,
V.P.O Khera Kalan,
Delhi (Driver)
2. M/s. TATA Motors Limited,
11/3, Mathura Road,
Badarpur,
Delhi (Registered owner)
Smt. Ishrat Jahan & Anr. Vs. Devender Chauhan & Ors. . Page 1 of 27
MACP No. 5507/16; FIR No. 351/09; PS. S.P. Badli DOD: 13.11.2018
3. The New India Assurance Company Ltd.,
1st Floor, 124,
Jeewan Bharti Building,
Tower II, 4th Floor,
Connaught Place,
Delhi(Insurer)
.......Respondents
Date of Institution : 02.04.2014
Date of Arguments : 26.10.2018
Date of Decision : 13.11.2018
APPEARANCES: Sh. M.P. Nagar, adv for petitioners/Lrs of deceased.
Respondent no. 1 is already exparte.
Sh. Deepak Joshi, adv for respondent no. 2.
Ms. Neeru Garg, adv for respondent no. 3.
Petition under Section 166 & 140 of M.V. Act, 1988 for grant of compensation AWARD
1. The petitioners are the legal heirs i.e. parents of deceased Wasim Ahmed @ Feroz who had sustained fatal injuries in Motor Vehicular Accident which occurred on 18.12.2009 at about 4.30 pm at Bypass G.T.K. Road, near Red Light of SGT Nagar, falling within the jurisdiction of PS. S.P. Badli, involving Tata Truck Bearing registration no. DL03TC176SZ (alleged offending vehicle).
2. The petitioners have filed the present claim petition U/s 166/140 M.V Act seeking compensation to the tune of Rs. 20,00,000/ Smt. Ishrat Jahan & Anr. Vs. Devender Chauhan & Ors. . Page 2 of 27 MACP No. 5507/16; FIR No. 351/09; PS. S.P. Badli DOD: 13.11.2018 alongwith interest from the date of filing of claim petition till its realization, on the averments that on 18.12.09 at about 4:30 pm, Wasim Ahmed @ Feroz (since expired) was going on motorcycle no. DL4SBH3707 at normal speed and on correct side of road while observing traffic rules alongwith his younger brother towards Alipur side. When they reached at Bypass G.T.K. Road, near Red Light of SGT Nagar, one truck bearing registration no. DL03TC176SZ, which was being driven by its driver i.e. respondent no. 1 at very high speed, rashly, negligently and without blowing any horn and in contravention of traffic rules, came and hit against the aforesaid motorcycle from its back side. As a result thereof, Wasim Ahmed and his younger brother fell down on the road alongwith motorcycle. Wasim sustained head injury. He was removed to BJRM Hospital, where he succumbed to those injuries on the same day. His postmortem was conducted at the mortuary of BJRM Hospital. FIR No. 351/09 u/s. 279/337/304A IPC was registered at PS. S.P. Badli with regard to said accident. It is claimed that said Truck No. DL03TC176SZ was owned by respondent no. 2 and it was insured with The New India Assurance Co Ltd/respondent no. 3 during the period in question.
3. It is further averred that deceased Wasim Ahmed was aged about 22 years; he was self employed being engaged in manufacturing the bags and was earning Rs. 10,000/ per month at the time of accident.
Smt. Ishrat Jahan & Anr. Vs. Devender Chauhan & Ors. . Page 3 of 27MACP No. 5507/16; FIR No. 351/09; PS. S.P. Badli DOD: 13.11.2018
4. In his WS, the respondent no. 1/driver has raised preliminary objections that the claim petition does not disclose any cause of action and same has been filed in order to extort money from him and he was falsely implicated in the criminal case. On merits, he has simply denied the averments made in the claim petition except to the extent that FIR No. 351/09 supra was registered against him, wherein he was arrested by the police. He has denied that deceased was driving his motorcycle at normal speed or that he was driving the aforesaid truck in rash and negligent manner. He has claimed that he was holding valid DL at the time of alleged accident. Based on aforesaid pleas, he has prayed for dismissal of the claim petition.
5. In their WS, the respondent no. 2 i.e. Tata Motors Limited/registered owner, have raised preliminary objections that they had entered into transportation agreement dated 15.10.08 with M/s. Miri Piri Carriers for transporting such vehicles, chasis or built up vehicles from one RSO to another RSO or from RSO to Body Builder/other destination. According to said agreement, M/s. Miri Piri had employed the driver on the aforesaid truck and thus, respondent no. 1 was under the employment of M/s. Miri Piri and hence, they are not liable to pay any compensation amount in this case. They have also raised an objection that due to said reason, claim petition is bad for nonjoinder of M/s. Miri Piri Carriers Pvt Ltd.
Smt. Ishrat Jahan & Anr. Vs. Devender Chauhan & Ors. . Page 4 of 27MACP No. 5507/16; FIR No. 351/09; PS. S.P. Badli DOD: 13.11.2018 On merits, they have simply denied the averments made in the claim petition with request for its dismissal.
6. Respondent no. 3/insurance company has raised statutory defence as provided in Section 149(2) M.V. Act by claiming that R1 was not having any DL at the time of alleged accident and he has been charge sheeted u/s. 3/181 M.V. Act by the police. However, it has admitted that the aforesaid truck was insured with it in the name of M/s. Tata Motors Limited (R2,) vide policy no. 121100/31/08/02/00008885 , having validity from 22.12.08 to 21.12.09. On merits, the averments made in the claim petition have been simply denied for want of knowledge with prayer for dismissal thereof.
7. From pleadings of the parties, the following issues were framed by my Ld. Predecessor vide order dated 20.01.2015 :
1) Whether the deceased Wasim Ahmad @ Firoz suffered fatal injuries in road traffic accident on 18.12.09 at about 4:30 pm at Bypass, GTK Road, near SGT Nagar, Red Light, Delhi, within the jurisdiction of PS. S.P. Badli, Ghaziabad due to rashness and negligence on the part of the R1 who was driving TATA truck bearing registration no. DL03TC176SZ, owned by R2 and insured with R3?OPP.
Smt. Ishrat Jahan & Anr. Vs. Devender Chauhan & Ors. . Page 5 of 27MACP No. 5507/16; FIR No. 351/09; PS. S.P. Badli DOD: 13.11.2018
2) Whether the petitioners are entitled to any compensation if so to what amount and from whom?OPP
3) Relief.
8. In support of their claim, the petitioners have examined two witnesses i.e. PW1 Smt. Ishrat Jahan (mother of deceased) and PW2 Faim Ahmed @ Mannu (alleged eye witness). They closed their evidence on 28.07.2017 through their counsel. On the other hand, no evidence has been adduced by respondent no. 1, who stopped appearing during the course of inquiry. However, the respondent no. 2 has examined one witness i.e. R2W1 namely Sh. Sharmender Chaudhary, Legal Manager and closed their evidence through counsel on 16.02.18 and respondent no. 3/insurer examined its Assistant Manager(Legal) namely Sh. Ajay Sharma as R3W1 and closed its evidence through counsel on 16.02.18 itself.
9. I have already heard the arguments addressed by ld counsels for the parties. I have also gone through the record. Both the sides were directed to submit their respective submissions in Form IV A vide order dated 26.10.2018 but they have not submitted the same on record till date. My findings on the issues are as under: Smt. Ishrat Jahan & Anr. Vs. Devender Chauhan & Ors. . Page 6 of 27 MACP No. 5507/16; FIR No. 351/09; PS. S.P. Badli DOD: 13.11.2018 ISSUE NO. 1.
10. For the purpose of this issue, the testimony of PW2 Faim Ahmed @ Mannu (alleged eyewitness) is relevant. He deposed in his evidence by way of affidavit (Ex. PW2/A) that on 18.12.09 at about 4:30 pm, he alongwith his brother namely Wasim Ahmed @ Feroz (since expired) was going on motorcycle no. DL4SBH3707 at normal speed and on correct side of road while observing traffic rules towards Alipur side. He was sitting as pillion rider on the said motorcycle. He further deposed that when they reached at Bypass G.T.K. Road, near Red Light of SGT Nagar, one truck bearing registration no. DL03TC176SZ, which was being driven by respondent no. 1 at very high speed, rashly, negligently and without blowing any horn and in contravention of traffic rules, came and hit against the aforesaid motorcycle from its back side. As a result thereof, they both fell down on the road alongwith motorcycle. Wasim sustained head injury. He was removed to BJRM Hospital, where he succumbed to those injuries on the same day. He categorically deposed that the accident was caused due to rash and negligent driving of truck bearing registration no. DL03TC 176SZ. During his crossexamination on behalf of respondents no. 2 & 3, he deposed that the accident had occurred somewhere around 4:30 pm. He did not recollect the date when police had met him for the first time concerning the accident in question but reiterated that it was in month of December 2009. He became unconscious immediately after the accident and regained consciousness in the hospital on the same day. He admitted Smt. Ishrat Jahan & Anr. Vs. Devender Chauhan & Ors. . Page 7 of 27 MACP No. 5507/16; FIR No. 351/09; PS. S.P. Badli DOD: 13.11.2018 that FIR No. 351/09 was not recorded on his statement. He denied the suggestion that he was not sitting as pillion rider on motorcycle of deceased or that he was not an eyewitness of the accident in question or that he was deposing falsely being real brother of deceased. Respondent no. 1 preferred not to crossexamine the said witness despite grant of opportunity.
11. The careful perusal of testimony of PW2 would go to show that the respondents, more particularly respondents no. 2 & 3, were not able to impeach his testimony through litmus test of crossexamination. The said witness is found to have successfully withstood the test of cross examination and nothing could be elicited during his crossexamination from their side so as to discredit his testimony made on Oath. Hence, there is no reason to disbelieve the uncontroverted testimony of said witness made on oath.
12. There is no substance in the argument raised on behalf of insurance company that the testimony of PW2 should not be believed merely because FIR No. 351/09(supra)(Ex. PW1/4) was not registered on the basis of his statement or that complainant namely Nadeem of said FIR, has not been produced or examined as witness during the course of inquiry. Apart from the fact that the respondents could not discredit the testimony of PW2 through litmus test of crossexamination, none of the respondents Smt. Ishrat Jahan & Anr. Vs. Devender Chauhan & Ors. . Page 8 of 27 MACP No. 5507/16; FIR No. 351/09; PS. S.P. Badli DOD: 13.11.2018 produced or examined any witness in rebuttal during the course of inquiry. Moreover, PW2 has sufficiently explained the reason as to why FIR was not registered on his statement, by testifying that he had become unconscious immediately after the accident and had regained his consciousness subsequently in the hospital.
13. There is no merit in the other argument raised on behalf of insurance company that no MLC of PW2 has been placed on record, which shows that he was not present at the time of accident. It may be noted here that no such question was put to said witness on behalf of either of the respondents. In other words, no opportunity was afforded to the witness to explain as to whether his MLC was prepared for the injuries sustained by him on account of accident in question or not. Having not done so, the respondents alone need to be blamed for the same and there is no reason to discard the testimony of PW2.
14. Moreover, it is an undisputed fact that FIR No. 351/09 u/s 279/337/304A IPC was registered at PS. S.P. Badli with regard to accident in question. Copy of said FIR (Ex. PW1/4) would show that same was registered on 18.12.09 on the basis of statement of complainant Nadeem S/o Idrish Ahmed. The contents of said FIR would show that the complainant has disclosed therein the same sequence of facts leading to the accident in question as deposed by PW2 during the course of inquiry.
Smt. Ishrat Jahan & Anr. Vs. Devender Chauhan & Ors. . Page 9 of 27MACP No. 5507/16; FIR No. 351/09; PS. S.P. Badli DOD: 13.11.2018
15. It is pertinent to note that the respondent no.1/driver of aforesaid truck, was the other material witness to throw light by testifying as to how and under what circumstances, the accident had taken place. However, he preferred not to enter into the witness box and to stay away from the proceedings in the present case during the course of inquiry. 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 Truck No. DL03TC176SZ by him.
16. As noted above, FIR No. 351/09(supra) was registered at PS. S.P. Badli with regard to accident in question. Copy of said FIR alongwith copy of chargesheet (Ex. PW1/4 & Ex. PW1/9 respectively) would show that FIR was registered on 18.12.2009 i.e. on the date of accident itself. Thus, FIR was registered promptly and without any delay. Hence, there is no possibility of false implication of respondent no. 1 and / or false involvement of Truck No. DL03TC176SZ at the instance of petitioners. The very fact that R1 was chargesheeted by the police for offences punishable u/s. 279/337/304A IPC, would further show that Investigating Agency concluded after completion of the investigation that the said accident had occurred due to rash and negligent driving of Truck No. DL 03TC176SZ by its driver namely Sh. Devender Chauhan i.e. R1 herein. Same would also point out towards rash and negligent driving of aforesaid vehicle by respondent no. 1.
Smt. Ishrat Jahan & Anr. Vs. Devender Chauhan & Ors. . Page 10 of 27MACP No. 5507/16; FIR No. 351/09; PS. S.P. Badli DOD: 13.11.2018
17. Apart from above, copy of MLC (Ex. PW1/6) of deceased prepared at BJRM Hospital, would reveal that he had been removed to said hospital on 18.12.09 at 5:00 pm by PCR official with alleged history of RTA. He is shown to have sustained multiple injuries as mentioned therein. Said injuries are consistent with the injuries which are sustained in motor vehicular accident. Not only this, copy of PM Report (Ex. PW1/5) of Wasim Ahmed @ Feroz, would show that his cause of death was due to shock as a result of injuries to chest till abdomen caused by blunt force impact . All injuries were antemortem in nature and were possible in RTA. The injuries as noted in the relevant column with regard to external injuries, as mentioned therein, are consistent with the injuries which are sustained in motor vehicular accident. Again, there is no challenge to the aforesaid documents from the side of respondents.
18. Further, copy of mechanical inspection report dated 21.12.2009 (Ex. PW1/10) of Truck No. DL03TC176SZ, would show fresh damages i.e. its front bumper was found scratched from lower side and its engine lower side safety plate was found damaged. Likewise, copy of mechanical inspection report dated 21.12.09 of motorcycle No. DL4SBH3707(Ex. PW1/11) of victim, would show that its right side legguard was damaged; its hand brake lever was found broken; its right rear indicator light was damaged; its front wheel mudguard was damaged; its front both shockers were bended; its headlight cover was scratched from left side and headlight Smt. Ishrat Jahan & Anr. Vs. Devender Chauhan & Ors. . Page 11 of 27 MACP No. 5507/16; FIR No. 351/09; PS. S.P. Badli DOD: 13.11.2018 glass was broken; its left side body parts were scratched; its rear number plate was found dented from right side and its handle system was found damaged. Said documents have not been disputed by the respondents and corroborate the ocular testimony of PW2 to the aforesaid extent.
19. In view of the aforesaid discussion and the evidence which has come on record, it is held that the petitioners have been able to prove on the basis of pre ponderence of probabilities that Wasim Ahmed @ Feroz had sustained fatal injuries in road accident which took place on 18.12.2009 at about 4.30 pm at Bypass G.T.K. Road, near Red Light of SGT Nagar, , due to rash and negligent driving of Truck bearing registration no. DL03 TC176SZ by respondent no.1. Thus, issue no. 1 is decided in favour of petitioners and against the respondents.
ISSUE NO. 220. 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.
Smt. Ishrat Jahan & Anr. Vs. Devender Chauhan & Ors. . Page 12 of 27MACP No. 5507/16; FIR No. 351/09; PS. S.P. Badli DOD: 13.11.2018 LOSS OF DEPENDENCY
21. As already stated above, the claimants/petitioners are the parents of deceased. PW1 Smt. Ishrat Jahan(mother of deceased) has deposed in her evidence by way of affidavit(Ex. PW1/A) that Wasim Ahmed @ Feroz was unmarried having age of 25 years; he was Diploma Holer in Electronic Engineering and was engaged in the business of bag manufacturing and was earning Rs. 10,000/ per month at the time of accident. She further deposed that she was fully dependent upon the income of deceased. She has relied upon the following documents: Sr. No. Description of documents Remarks
1. Copy of her Aadhaar Card Ex PW1/1
2. Copy of death certificate of Ex. PW1/2 deceased
3. Copy of her voter I card Ex. PW1/3
4. Copy of FIR No. 351/09 Ex. PW1/4
5. Copy of PM Report of Ex. PW1/5 deceased
6. Copy of MLC of deceased Ex. PW1/6
7. Copy of voter I card of Ex. PW1/7 deceased
8. Copy of DL of deceased Ex. PW1/8
9. Copy of chargesheet in case Ex. PW1/9 Smt. Ishrat Jahan & Anr. Vs. Devender Chauhan & Ors. . Page 13 of 27 MACP No. 5507/16; FIR No. 351/09; PS. S.P. Badli DOD: 13.11.2018 FIR No. 351/09
10. Copy of mechanical Ex. PW1/10 inspection report of Tata Vehicle no. DL03TC176SZ
11. Copy of mechanical Ex. PW1/11 inspection report of Motorcycle no. DL4SBH 3707
22. During her cross examination on behalf of respondents no. 2 & 3, she denied the suggestion that in view of letter dated 18.01.17 (Ex. PW1/R2), respondent no. 2 had no liability to pay the compensation amount. She deposed that her husband was running small shop of trading of tailoring material and used to earn Rs. 100/ per day. She was about 52 years old at the time of accident. She had not filed any document to show that deceased was holding Diploma/Degree in Electronic Engineering or that he was earning Rs. 10,000/ per month at the time of accident. She further deposed that deceased was not filing any Income Tax Return during his life time and was not maintaining any bank account. However, she reiterated that deceased was having DL, copy of which is Ex. PW1/8, for category of motorcycle. Respondent no. 1 did not crossexamine this witness at all.
Smt. Ishrat Jahan & Anr. Vs. Devender Chauhan & Ors. . Page 14 of 27MACP No. 5507/16; FIR No. 351/09; PS. S.P. Badli DOD: 13.11.2018
23. Counsel for petitioners fairly conceded during the course of arguments that for want of cogent evidence being led with regard to monthly income of deceased, his monthly income should be taken as per Minimum Wages Act applicable during the period in question. It may be noted here that the petitioners have not filed any document concerning educational qualification of deceased. Hence, monthly income of deceased has to be assessed as that of unskilled worker under Minimum Wages Act applicable during the period in question. The Minimum Wages of unskilled worker were Rs. 3,953/ per month as on the date of accident, which is 18.12.09.
24. As per the case of petitioners, deceased Wasim Ahmed was aged about 22 years at the time of accident. This fact stands substantiated from copy of DL(Ex. PW1/8) of deceased, wherein his date of birth is mentioned as 01.01.1985. The date of accident is 18.12.09. Thus, the age of deceased comes out to be somewhere around 2425 years at the time of accident. Hence, the multiplier of 18 would be applicable in view of recent pronouncement made by Constitutional Bench of Apex Court in the case titled as "National Insurance Company Ltd. Vs. Pranay Sethi & Ors." passed in SLP(Civil) No. 25590/14 decided on 31.10.17.
25. Considering the fact that deceased was aged about 2425 years at the time of accident and was not having permanent job at that time, Smt. Ishrat Jahan & Anr. Vs. Devender Chauhan & Ors. . Page 15 of 27 MACP No. 5507/16; FIR No. 351/09; PS. S.P. Badli DOD: 13.11.2018 future prospects @ 40% has to be awarded in favour of petitioners in view of recent pronouncement made by Constitutional Bench of Apex Court in the case titled as "National Insurance Company Ltd. Vs. Pranay Sethi & Ors." mentioned supra, as well as in view of recent decision of Hon'ble Delhi High Court in appeal bearing MAC APP No. 798/2011 titled as "Bajaj Allianz General Insurance Company Ltd. Vs. Pooja & Ors", decided on 02.11.17.
26. PW1 has categorically deposed in her evidence by way of affidavit (Ex. PW1/A) that she was fully dependent upon the income of deceased. Said part of her testimony remained unchallenged and uncontroverted from the side of respondents. However, she has admitted during her crossexamination that petitioner no. 2 i.e. father of deceased was earning at the time of accident. Considering all these facts and circumstances, it is accepted that there was one dependent on deceased at the time of accident. Hence, there has to be deduction of one half as held in the case of Pranay Sethi mentioned supra. Thus, the total of loss of dependency would come out to Rs. 5,97,694/ (rounded off) (Rs. 3,953/ X 1/2 X 140/100 X 12 X 18). Hence, a sum of Rs. 5,97,694/ is awarded under this head in favour of the petitioners.
Smt. Ishrat Jahan & Anr. Vs. Devender Chauhan & Ors. . Page 16 of 27MACP No. 5507/16; FIR No. 351/09; PS. S.P. Badli DOD: 13.11.2018 LOSS OF LOVE & AFFECTION
27. After the celebrated judgment of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors.", mentioned supra, Hon'ble Delhi High Court in appeal titled as "Bajaj Allianz General Insurance Company Ltd. Vs. Pooja & Ors", mentioned supra, has been pleased to observe in para 18 of the judgment that the Constitution Bench decision in Pranay Sethi (supra) does not recognize any other nonpecuniary head of damages. Hence, no amount of compensation is being awarded under this head.
LOSS OF CONSORTIUM
28. In its recent decision delivered in the case of " Magma General Insurance Co Ltd Vs. Nanu Ram @ Chuhru Ram & Ors.", Civil Appeal No. 9581/2018 decided on 18.09.2018, Hon'ble Apex Court has held that even in case of death of unmarried child, parents are entitled to filial consortium by observing that filial consortium is the right of the parents to compensation in the case of an accidental death of a child. It further held that an accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to loose their child during their life time. Children are valued for their love, affection, companionship and their role in the family unit. While following the dictum in the aforesaid decision of Hon'ble Apex Court, I Smt. Ishrat Jahan & Anr. Vs. Devender Chauhan & Ors. . Page 17 of 27 MACP No. 5507/16; FIR No. 351/09; PS. S.P. Badli DOD: 13.11.2018 hereby award a sum of Rs. 40,000/ as filial consortium to the petitioners under this head.
LOSS OF ESTATE & FUNERAL EXPENSES
29. In view of the facts and circumstances of the present case and in view of decision of Hon'ble Apex Court in the case of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors." mentioned supra, a sum of Rs. 15,000/ each is awarded in favour of petitioners on account of loss of estate and funeral expenses.
The total compensation is assessed as under:
1. Loss of dependency Rs. 5,97,694/
2. Loss of consortium Rs. 40,000/
3. Loss of Estate & Funeral Rs. 30,000/ Expenses Total Rs. 6,67,694/ Rounded Off to Rs. 6,68,000/
30. 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 valid DL at the time of accident in question. In order to substantiate the said plea, the insurance company has examined Sh. Ajay Sharma, Assistant Manager(Legal), New India Assurance Company Limited Smt. Ishrat Jahan & Anr. Vs. Devender Chauhan & Ors. . Page 18 of 27 MACP No. 5507/16; FIR No. 351/09; PS. S.P. Badli DOD: 13.11.2018 as R3W1. Said witness has deposed in his evidence by way of affidavit (Ex. R3W1/1) that at the time of alleged accident, the driver/R1 was driving the vehicle no. DL03TC176SZ without holding any DL and police had filed challan u/s. 279/304A IPC & 3/181 M.V. Act against the respondent no. 1. He further deposed that police had also filed Kalanadra u/s. 5/180 M.V. Act against the owner of the vehicle. He exhibited copy of insurance policy as Ex. R3W1/A. He also deposed that the insurance company had issued notice u/o 12 Rule 8 CPC upon driver and registered owner i.e. respondents no. 1 & 2 through its counsel but despite service of said notice, they failed to produce any valid and effective DL in favour of R1 on record. He exhibited copy of said notice as Ex. R3W1/B and its postal receipts as Ex. R3W1/C & Ex. R3W1/D and tracking reports regarding service of said notice upon them as Ex. R3W1/E and Ex. R3W1/F respectively. During his crossexamination on behalf of respondent no. 2, he admitted that their office had not filed any Investigation Report regarding validity of DL of respondent no. 1. He volunteered that he was relying upon the chargesheet filed u/s. 279/304A IPC & 3/181 M.V. Act against the respondent no. 1/driver and Kalandra U/s. 5/180 M.V. Act filed against the owner of the alleged offending vehicle in the criminal case. He denied the suggestion that notice u/o 12 Rule 8 CPC was not sent to M/s. TATA Motors. Respondent no. 1 and petitioners did not crossexamine this witness at all.
Smt. Ishrat Jahan & Anr. Vs. Devender Chauhan & Ors. . Page 19 of 27MACP No. 5507/16; FIR No. 351/09; PS. S.P. Badli DOD: 13.11.2018
31. It is pertinent to note that the respondent no. 2 has examined Sh. Sharmendra Chaudhary, Legal Manager with TATA Motors Limited as R2W1. He deposed in his evidence by way of affidavit (Ex. R2W1/A) that the respondent no. 2 had entered into Transportation Agreement dated 15.10.08 with M/s. Miri Piri Carriers, Delhi for transporting its vehicles, chasis or built up vehicles from its one RSO to another RSO or from RSO to body builder/other destination and back. He further deposed that as per aforesaid agreement, M/s. Miri Piri had employed respondent no. 1/driver and he was under the employment of M/s. Miri Piri and was not under the employment of respondent no. 2. Thus, respondent no. 2 is not liable to pay any compensation to the petitioners. He exhibited the copy of authorization letter in his favour as Ex. R2W1/1 and copy of aforesaid agreement as Ex. R2W1/2. During his crossexamination on behalf of respondent no. 3, he admitted that Tata Motors Limited was the registered owner of offending vehicle bearing no. DL03TC176SZ at the time of accident. He further admitted that the said vehicle was got released on superdari by their AR namely Sh. Rakesh Madan from the Court of Ld. MM. He also admitted that the said vehicle was insured in the name of Tata Motors Limited. He also admitted that he had not moved any application for impleading M/s. Miri Piri Carriers as party in the present petition. He volunteered that the respondent no. 2 had already taken this plea in its reply. They had disclosed this fact to the IO that respondent no. 1 was not their employee during investigation of criminal case. The said information was provided to IO orally but no written Smt. Ishrat Jahan & Anr. Vs. Devender Chauhan & Ors. . Page 20 of 27 MACP No. 5507/16; FIR No. 351/09; PS. S.P. Badli DOD: 13.11.2018 intimation in this regard was given by the company to IO. He denied the suggestion that he could not produce any document showing that information in this regard was given to IO since they had not informed any such fact to IO during investigation of criminal case. He admitted that they had not lodged any complaint to any Authority against the driver of M/s. Miri Piri Carriers. He denied the suggestion that the respondent no. 1 had taken the offending vehicle with the consent of Tata Motors Ltd at the time of accident in question. He further denied the suggestion that they were avoiding their liability and denying the fact that respondent no. 1 was their employee in order to avoid payment of compensation amount in this case. He denied the suggestion that respondent no. 1 was working during the course of employment with respondent no. 2 as on the date of accident. He also denied the suggestion that there was fundamental breach in the terms and conditions of the insurance policy on the part of Tata Motors Ltd or that insurance company was not liable to pay any compensation amount due to said reason. During his crossexamination on behalf of petitioners, he denied the suggestion that respondent no.1 was employee of Tata Motors Ltd as on the date of accident. Respondent no. 1 did not crossexamine this witness at all.
32. It is quite evident from the aforesaid discussion that the respondent no. 2 could not substantiate its plea that respondent no. 1 was not employed as driver by them or that respondent no. 1 was under the Smt. Ishrat Jahan & Anr. Vs. Devender Chauhan & Ors. . Page 21 of 27 MACP No. 5507/16; FIR No. 351/09; PS. S.P. Badli DOD: 13.11.2018 control and employment of M/s. Miri Piri Carriers Pvt. Ltd. What is important to note is that apart from filing copy of Transportation Agreement (Ex. R2W1/2), no other document has been placed on record by said respondent, which may show that the offending vehicle i.e. truck no. DL03 TC176SZ was infact being transported through M/s. Miri Piri Carriers Pvt Ltd at the time when it had caused the accident in question. Thus, it can not be said that the said vehicle was in the possession of said company at the time of said accident.
33. As already noted above, the respondent no. 1/driver himself did not enter into witness box during the course of enquiry and he failed to produce any valid DL in his favour as on the date of accident in question. Moreover, copy of chargesheet(Ex. PW1/9) filed in State case arising out of FIR No. 351/09 supra, would clearly show that the respondent no. 1/driver namely Devender Chauhan has been chargesheeted for offences punishable u/s. 279/338 IPC & Section 3/181 M.V. Act by investigating agency after conclusion of the investigation. Copy of said chargesheet, 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.
34. It may also be noted here that counsel for respondent no. 2 had relied upon copy of DL dated 11.04.03 purportedly issued by Licencing Smt. Ishrat Jahan & Anr. Vs. Devender Chauhan & Ors. . Page 22 of 27 MACP No. 5507/16; FIR No. 351/09; PS. S.P. Badli DOD: 13.11.2018 Authority, Farukhabad, U.P in favour of respondent no. 1 and claimed that the said DL was valid and effective as on the date of accident i.e. 18.12.09. Accordingly, said DL was got verified through SHO concerned vide order dated 04.09.18 passed by this Claims Tribunal and consequently, report dated 25.10.18 issued by ARTO, Fatehgarh, Farukhabad was filed on 26.10.18, wherein it was clarified that said DL was issued in favour of respondent no. 1 for the category of motorcycle and LMV(private) but requisite fee was not deposited in their office and that is why, said DL should not be treated as valid.
35. Thus, it is quite established on record that there was no valid and effective DL in favour of R1 as on the date of accident. Had there been any valid DL in favour of respondent no. 1 to drive the category of offending vehicle, copy thereof would have been provided by him to the police or would have been placed on record during the course of inquiry, which is not the case herein.
36. In view of the aforesaid discussion, I find substance in the plea raised on behalf of insurance company that for want of valid and effective DL in favour of respondent no. 1 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 the respondent no. 2. (Reliance placed on decision Smt. Ishrat Jahan & Anr. Vs. Devender Chauhan & Ors. . Page 23 of 27 MACP No. 5507/16; FIR No. 351/09; PS. S.P. Badli DOD: 13.11.2018 dated 26.09.2017 in FAO no.7555/2015 in the matter titled as "MS Middle High School and another Vs. Usha and 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
37. In view of the aforesaid discussion, I award compensation of Rs. 6,68,000/ (including interim award amount, if any) alongwith interest @ 9% per annum in favour of petitioners and against the respondents jointly and severally w.e.f. date of filing of the petition i.e. 02.04.14 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, it would be open to the insurance company to recover the award amount from respondent no. 2 after payment of compensation amount, in accordance with law.
APPORTIONMENT
38. Statement of petitioners in terms of Clause 27 MCTAP were recorded on 04.09.18. Having regard to the facts and circumstances of the Smt. Ishrat Jahan & Anr. Vs. Devender Chauhan & Ors. . Page 24 of 27 MACP No. 5507/16; FIR No. 351/09; PS. S.P. Badli DOD: 13.11.2018 case and in view of their statements, it is hereby ordered that out of total compensation amount, the petitioner no. 1 namely Smt. Ishrat Jahan shall be entitled to share amount of Rs. 4,00,000/ (Rupees Four Lacs Only) alongwith proportionate interest and the petitioner no. 2 namely Sh. Abdul Rahim Master shall be entitled to share amount of Rs. 2,68,000/ (Rupees Two Lacs and Sixty Eight Thousand Only) alongwith proportionate interest.
39. Out of share amount of petitioner no. 1, a sum of Rs. 75,000/ (Rupees Seventy Five Thousand Only) shall be immediately released to her through her saving bank account no. 21178100004091 with Bank of Baroda, Sultnapur Mazra, Nangloi Road, Delhi and remaining amount alongwith interest amount are directed to 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.
40. Out of share amount of petitioner no. 2, a sum of Rs. 50,000/ (Rupees Fifty Thousand Only) shall be immediately released to him through his saving bank account no. 21170100048398 with Bank of Baroda, Sultnapur Mazra, Nangloi Road, Delhi and remaining amount alongwith interest amount are directed to 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.
Smt. Ishrat Jahan & Anr. Vs. Devender Chauhan & Ors. . Page 25 of 27MACP No. 5507/16; FIR No. 351/09; PS. S.P. Badli DOD: 13.11.2018
41. The FDRs to be prepared as per the aforesaid directions, shall be subject to the following directions:
(i) Original fixed deposit receipts be retained by the bank in safe custody. However, a passbook of the FDRs alongwith photocopies of the FDRs be given to claimants/petitioners. At the time of maturity, the fixed deposit amount shall be automatically credited in the savings bank accounts of the Claimants/petitioners.
(ii) No cheque book/Debit Card be issued to the claimants/petitioners without permission of the Court.
(iii) No loan, advance or withdrawal be allowed on the fixed deposit(s) without permission of the Court.
(iv) The Bank shall not permit any joint name(s) to be added in the savings bank accounts or fixed deposit accounts of the victim.
(v) Half yearly statement of account be filed by the Bank before the Tribunal.
42. During the course of hearing final arguments, claimants were asked as to whether they were entitled to exemption from deduction of TDS or not. They stated on oath that they were entitled to exemption from deduction of TDS and also furnished Forms No. 15H on record.
43. Respondent no. 3, being insurer of offending vehicle is directed to deposit the award amount with SBI, Rohini Courts branch within 30 days as per above order, failing which insurance company shall be liable to pay interest @ 12% p.a for the period of delay. Concerned Manager, Smt. Ishrat Jahan & Anr. Vs. Devender Chauhan & Ors. . Page 26 of 27 MACP No. 5507/16; FIR No. 351/09; PS. S.P. Badli DOD: 13.11.2018 SBI, Rohini Court Branch is directed to transfer the respective share amounts of claimants 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 cheques. Copy of this award be given dasti to claimants. Copy of this award be given dasti alongwith Forms no. 15H furnished by claimants (after retaining their copies on record) to counsel for insurance company. 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 IVA and Form V in terms of MCTAP are annexed herewith as AnnexureA. Copy of order be also sent to concerned M.M and DLSA as per clause 31 and 32 of MCTAP.
Digitally signed by VIDYA Announced in the open VIDYA PRAKASH PRAKASH Date: 2018.11.13 17:07:47 +0530 Court on 13.11.2018 (VIDYA PRAKASH) Judge MACT2 (North) Rohini Courts, Delhi Smt. Ishrat Jahan & Anr. Vs. Devender Chauhan & Ors. . Page 27 of 27