Delhi District Court
Munni Begam vs Dharmendra on 19 April, 2024
IN THE COURT OF MS. VRINDA KUMARI
PRESIDING OFFICER : MOTOR ACCIDENT CLAIMS
TRIBUNAL, PATIALA HOUSE COURTS, NEW DELHI
IN THE MATTER OF:
MUNNI BEGAM & ORS. VS. DHARMENDRA & ANR.
MACP No. 154/17
1. Smt. Munni Begam (Wife of deceased)
W/o Late Sh. Sadruddin
2. Shaheen (Daughter of deceased)
D/o Late Sh. Sadruddin
3. Ruksar (Daughter of deceased)
D/o Late Sh. Sadruddin
4. SadabAshraf (Son of deceased)
S/o Late Sh. Sadruddin
5. Sahnaj (Daughter of deceased)
D/o Late Sh. Sadruddin
6. Gosi (Daughter of deceased)
D/o Late Sh. Sadruddin
All R/o RZ-A83, Gali No. 2,
Sagarpur, South West, Delhi-110046.
Also at :-
Plot No. 83A, Ground Floor, Plot No. 35,
Block-I, Sagarpur, South West, Delhi-110046.
Also at :-
RZ-28/3/1, Gali No. 11, Durga Park,
Nasirpur, South West, Delhi-110045.
(Petitioner no. 3 to 6 being minors represented
through their mother Smt. Munni Begam/natural
guardian/petitioner no. 1.
......Petitioners
MACP No. 154/17 Page 1 of 29
Versus
1. Sh. Dharmendra (Owner cum driver)
S/o Sh. Mahesh,
R/o H.No. 462, Village Ghodi Bccheda,
District Gautam Budh Nagar, Noida.
2. Reliance General Insurance Co. Ltd. (Insurer)
Plot No. 60, Okhla Industrial Estate,
Phase-3, Opposite SBI Bank,
New Delhi-110020.
3. Sh. Kalu Ram (Present Owner)
R/o Village Ghodi Bachheda,
Gautam Buddha Nagar, U.P.-201310.
.........Respondents
Date of filing of claim petition : 09.11.2016 Date of framing of issues : 04.06.2018 Date of concluding arguments : 08.04.2024 Date of decision : 19.04.2024 AWARD/JUDGMENT
1. Vide this Judgment, I shall decide the application u/s 166/140 of the Motor Vehicle Act, 1988 for grant of compensation.
2. The claim for compensation raised in this claim petition is in respect of fatal injuries alleged to have been sustained by the deceased Sh. Sadruddin in a motor accident that took place on 03.09.2016, at about 11 am, Kamla Gate Near J.P. Green, Greater Noida, Gautam Budh Nagar, U.P., regarding which one FIR No.636/16, under Sections 279/338/304-A IPC was registered at PS Kasna, District Gautam Budh Nagar, U.P. The vehicle involved in this case is a TSR bearing registration No. UP-16T-5799, which at the relevant time of accident was MACP No. 154/17 Page 2 of 29 being driven and owned by respondent no. 1 (R1), insured with respondent no. 2 (R2) and subsequently purchased by respondent no. 3 (R3).
3. Case of the petitioners is that on 03.09.2016, Sh. Sadruddin (deceased) alongwith other co-passengers was going towards Pari Chowk, Greater Noida from Noida by TSR bearing Registration No. UP-16T-5799 which was being driven by its driver/respondent no. 1 Sh. Dharmendra at a very high speed, rashly, negligently and in a zig-zag manner. He was warned many a times by Sh. Sadruddin and other co-passengers and was advised to drive safely. However, respondent no. 1 did not pay any heed to them and continued to drive the said TSR carelessly, rashly and negligently while violating the traffic norms. At about 11 AM when the TSR reached Kamla Gate, near J.P. Green, Greater Noida falling within the jurisdiction of PS Kasna, District Gautam Budh Nagar, the driver lost his control over the TSR and hit against a vehicle with a great force. As a result of this accident, all the inmates sitting in the TSR sustained grievous injuries. Sh. Sadruddin was immediately taken to Kailash Hospital, Greater Noida by Ambulance where he was declared 'brought dead'. His post mortem was also conducted.
4. It is the case of the petitioners that Sh. Sadruddin was survived by petitioner no. 1 Smt. Munni Begam (wife), one major unmarried daughter Ms. Shaheen (petitioner no. 2), three minor daughters, namely, Ms. Ruksar (petitioner no. 3), Miss Sahnaj (petitioner no. 5), Miss Gosi (petitioner no. 6) and one minor son, namely, Master Sadab Ashraf (petitioner no. 4). It is submitted that at the time of accident, deceased was 38 years old MACP No. 154/17 Page 3 of 29 possessing sound mind, good health and robust physique. He was working as Supervisor with M/s Home Plantions & TV Centre, 267, Khushal Park, Loni, Gaziabad, U.P. and was drawing a salary in sum of Rs. 18,500/- per month. It is submitted that the petitioners were fully dependent upon the income of the deceased. It is further submitted that Respondent no. 1 being the driver-owner and Respondent no. 2 being the Insurance Company are jointly and severally liable to pay compensation to the petitioners. It is further submitted that since the petitioners are resident in the area falling within the jurisdiction of PS Sagarpur, South-West, Delhi, this Court has the jurisdiction to try the present petitioner. The petitioners have claimed compensation in sum of Rs. 45 lakh only along with interest at the rate of 12% per annum from the date of filing the present claim petition till its realization.
5. In his written statement, respondent no.1 took the plea that his vehicle had nothing to do with the alleged accident and had been falsely implicated. It is further submitted that respondent no. 1 had already sold the said vehicle to one Sh. Kalu Khan S/o Sh. Basir Khan R/o Village Ghodi Bachheda, Gautam Budh Nagar Uttar Pradesh-201310 on 12.02.2012. It is further submitted by respondent no. 1 that he had taken the delivery receipt from Sh. Kalu Khan.
6. In its written statement, respondent no. 2 Reliance General Insurance Co. Ltd has taken the defence that it had not issued the policy covering the vehicle in question and, therefore, it is not liable to indemnify the insured/owner. It is further submitted that the compensation claimed by the petitioners is MACP No. 154/17 Page 4 of 29 exorbitant and without any basis.
7. In the written statement, respondent no. 3 took the plea that he was falsely implicated in the present matter. It is further submitted that he has nothing to do with the present matter as he is neither the owner nor the driver of the offending vehicle. It is further submitted that the receipt/sale letter placed on record by respondent no. 1 is forged and fabricated document. He has relied upon the judgment of Hon'ble Supreme Court of India in case titled as Naveen Kumar Vs. Vijay Kumar & Ors., II(2018) SLT 44, decided on 06.02.2018, wherein it was held as under :-
"12. The consistent thread of reasoning which emerges from the above decisions is that in view of the definition of the expression 'owner' in Section 2(30), it is the person in whose name the motor vehicle stands registered who for the purposes of the Act, would be treated as the 'owner'. However, where a person is a minor, the guardian of the minor would be treated as the owner. Where a motor vehicle is subject to an agreement of hire purchase, lease or hypothecation, the person in possession of the vehicle under that agreement is treated as the owner. In a situation such as the present where the registered owner has purported to transfer the vehicle but continues to be reflected in the records of the registering authority as the owner of the vehicle, he would not stand absolved of liability."
8. On 04.06.2018, the following issues were framed by this tribunal as:-
1. Whether the deceased Sadruddin sustained fatal injuries in the accident which occurred on 03.09.2016 at about 11 AM, MACP No. 154/17 Page 5 of 29 Kamla Gate near J.P. Green, Greater Noida, Gautam Budh Nagar, U.P. caused by rash and negligent driving of vehicle no. UP- 16T-
5799 being driven by respondent no. 1, owned by respondent no. 2 and insured with respondent no. 3 ? OPP.
2. Whether the petitioners are entitled to compensation? If so, to what amount and from whom? OPP
3. Relief.
9. It is noted that inadvertently, it is mentioned in issue no. 1 that the offending vehicle was owned by respondent no. 2 and insured with respondent no. 3 whereas the offending vehicle was insured with respondent no. 2 and subsequently purchased by respondent no. 3. Accordingly, the issue no. 1 shall be read as under :-
1. Whether the deceased Sadruddin sustained fatal injuries in the accident which occurred on 03.09.2016 at about 11 AM, Kamla Gate near J.P. Green, Greater Noida, Gautam Budh Nagar, U.P. caused by rash and negligent driving of vehicle no. UP- 16T-5799 being driven by respondent no.1, insured with respondent no. 2 and subsequently purchased by respondent no. 3 ?
OPP.
10. It is pertinent to mention that the Insurance Company had preferred an appeal before the Hon'ble High Court of Delhi against the interim award dated 05.10.2018 passed by MACP No. 154/17 Page 6 of 29 this Tribunal, which was allowed and the interim award was set aside vide Order dated 25.08.2023.
11. In support of their claim, the petitioner no. 1/wife of deceased examined herself as PW1. Petitioners examined Mohd. Majalum Shah, proprietor of M/s Home Plantions & T.V. Centre as PW2. In rebuttal, the respondent no. 2 examined Sh. Sayok Bandyopadhyay, Deputy Legal Claims Manager as R2W1.
12. Respondent no. 1 preferred not to lead any evidence in his defense or address final arguments. The Tribunal heard the arguments advanced by Sh. Sh. Noor Alam, Ld. Counsel for petitioners and Sh. Nitesh Gupta, Ld. Counsel for R-2/Insurance Company and has carefully perused the entire record of the case as well as written submissions filed on behalf of petitioners and R-2/Insurance Company. The findings on the aforementioned issues are rendered hereinafter in the succeeding paragraphs.
13. ISSUE NO. 11. Whether the deceased Sadruddin sustained fatal injuries in the accident which occurred on 03.09.2016 at about 11 AM, Kamla Gate near J.P. Green, Greater Noida, Gautam Budh Nagar, U.P. caused by rash and negligent driving of vehicle no. UP- 16T-5799 being driven by respondent no.1, insured with respondent no. 2 and subsequently purchased by respondent no. 3 ? OPP.
14. Onus to prove this issue was upon the petitioners. The first question that needs to be decided is whether the MACP No. 154/17 Page 7 of 29 accident was caused by the vehicle bearing registration No. UP- 16T-5799. In order to prove the same, Smt. Munni Begam, wife of deceased was examined as PW1 who tendered her evidence by way of affidavit Ex. PW1/A and relied upon the certified copies of documents of the criminal case record bearing FIR as Ex. PW1/10 (colly). During cross examination, she admitted that she is not an eye witness to the accident.
15. In cases National Insurance Company Ltd. Vs. Pushpa Rana, 2009 ACJ 287 and United India Insurance Co. Ltd. Vs. Deepak Goel and Ors., 2014 (2) TAC 846 (Del.) decided by the Coordinate Bench of the Hon'ble Delhi High Court, it was held that "......where the petitioners filed either the certified copies of the criminal record or the criminal record showing the completion of investigation by police or issuance of charge sheet under Section 279/304A IPC or the certified copy of FIR or the recovery of the mechanical inspection report of the offending vehicle, then these documents are sufficient proof to reach to a conclusion that the driver was negligent particularly when there is no defence available from the side of driver."
16. The Hon'ble Apex Court in Mangla Ram Vs. Oriental Insurance Co. Ltd. & Ors., 2018 Law Suit (SC) 303 has observed that filing of charge sheet against the driver prima facie points towards his complicity in driving the vehicle rashly and negligently. It has been further observed that even when the accused were to be acquitted in the criminal case, the same may be of no effect on the assessment of the liability required in MACP No. 154/17 Page 8 of 29 respect of motor accident cases by the Tribunal.
17. It is well settled that the procedure followed for proceedings conducted by an accident tribunal is similar to that followed by a Civil Court and in Civil matters, the facts are required to be established on preponderance of probabilities and not beyond reasonable doubt, as are required in a criminal prosecution. Reference in this regard is made to the judgment of Hon'ble Apex Court reported as (2009) 13 SC 530 in Bimla Devi and others Vs. Himachal Road Transport Corporation and others, wherein it has been observed that strict proof of an accident caused by a particular vehicle in a particular manner may not be possible to be done by the petitioners and the petitioners were merely to establish their case on the touchstone of preponderance of probability.
18. Pertinently, Respondent no. 1 himself was the best witness who could have stepped into the witness box to deny his involvement in the accident or to deny negligence on his part, which he failed to do. He has also failed to adduce any evidence to show that he had sold the offending vehicle to one Sh. Kalu on 12.02.2012. Therefore, an adverse inference is liable to be drawn against the respondent no. 1 in terms of judgment of Hon'ble High Court of Delhi passed in the case of Cholamandalam M.S. General Insurance Company Ltd. Vs. Kamlesh, reported in 2009 (3) AD (Delhi) 310.
19. In view of foregoing discussion, it stands proved on preponderance of probability that the aforesaid accident took place due to rash and negligent driving of the offending vehicle bearing registration no. UP-16T-5799 and the said vehicle at that time was driven and owned by respondent no. 1, insured with MACP No. 154/17 Page 9 of 29 respondent no. 2 and subsequently purchased by respondent no.3. Hence, this issue is decided in favour of the petitioners and against the respondents.
20. ISSUE NO. 2Whether the petitioners are entitled for compensation? If so, to what amount and from whom?
21. As rashness and negligence on part of driver of the offending vehicle/respondent No. 1 has been proved, the petitioners have become entitled to be compensation for death of their family member in the said accident, but the computation of compensation and liability to pay the same are required to be decided. The compensation to which the petitioners are entitled shall be under the heads as discussed hereinafter.
(i) Loss of dependency
22. The petitioner No. 1 being wife of the deceased has stepped into the witness box as PW1 and filed her evidence by way of affidavit as Ex. PW1/A wherein, she has claimed that her deceased husband was working as Supervisor with M/s Home Plantions & TV Centre, 267, Khushal Park, Loni, Ghaziabad, U.P. and was getting salary of Rs. 18,500/- per month.
23. During cross examination, she admitted that her deceased husband was working in the company at Ghaziabad and used to repair the electronic items like washing machine, TV etc. She further admitted that she has no document to show employment and salary of her deceased husband.
24. In order to prove the employment and salary of MACP No. 154/17 Page 10 of 29 deceased, the petitioners have examined on record one Mohd. Majalum Shah, proprietor of M/s Home Plantions & T.V. Centre as PW2 who tendered his evidence by way of affidavit Ex. PW2/A and relied upon the copy of certificate of registration and allotment of TIN as Ex. PW2/1 (colly) as well as copy of salary certificate of deceased dated 21.10.2016 as Ex. PW2/2. PW2 has deposed that the deceased was working as Supervisor in his proprietorship concern M/s Home Plantions & TV Centre since 01.04.2015 till his untimely death in the fatal road accident on 03.09.2016. No doubt, during his cross examination, he has deposed that the deceased worked him from 2014 to mid of 2015. However, it cannot be lost sight of the fact that the cross examination of PW2 was conducted on 12.01.2024, i.e. after about 8 years of the accident in question. In such a circumstance, discrepancy of such a nature in deposition of witness is natural. This witness has categorically deposed in his cross examination that the deceased was working with him at the time of accident in question and he used to pay salary to the tune of Rs. 18,500/- per month. The documents Ex. PW2/1 (colly) (OSR) of PW2 would show that his business under the name and style of M/s Home Plantions & TV Centre was registered. TIN number was also alloted to him. The registration certificate dated 23.05.2011 was also issued in his favour by the Department of Commercial Taxes, Govt. of U.P. These documents corroborate the assertion of PW2 that he was running business of electronic goods, computer system and peripherals, preparation of unrecorded media for sound recording including CD and DVD. No doubt, PW2 admitted that he had no document pertaining to attendance MACP No. 154/17 Page 11 of 29 register, cash voucher, TA and DA paid to the deceased except the certificate issued by him on 21.10.2016. However, it does not diminish the quality of evidence of PW2. The Court does not find any ground to doubt the testimony of PW2.
25. Reliance has been placed upon the judgment of Hon'ble Delhi High Court in case Sushila Yadav & Ors. ; Iffco Tokio General Insurance Company Ltd. vs. Chetan Parkash Kaushik & Ors. ; Sushila Yadav & Ors., 2017 LawSuit (Del.) 3185, wherein it was held that the allowances in the nature of transport allowance, washing allowance, metropolitan allowance, ration money and conveyance allowance are regular in nature and are for benefit of the family and hence, these would necessarily result in corresponding savings and thus, the denial of these allowances would be net loss for the family of deceased. Hence, these allowances are liable to be included for calculating the salary of deceased.
26. Accordingly, the income of deceased is assessed at Rs. 18,500/- per month for the purposes of calculation in the present matter.
27. In order to prove the age of deceased, PW1 has tendered on record copy of school leaving certificate of her deceased husband as Ex. PW1/1 in which the date of birth of deceased is found recorded as 11.01.1978. Hence, going by this document, the age of deceased as on the date of accident i.e. on 03.09.2016 was 38 years, 7 months and 23 days. In terms of law laid down by the Hon'ble Supreme Court in the case of Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr., (2009) 6 SCC 121, which has also been approved by the MACP No. 154/17 Page 12 of 29 Constitution Bench of the Hon'ble Apex Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi & Ors., (2017) 16 SCC 680, the multiplier of '15' is applicable in the present case.
28. Now coming to calculation of loss of dependency, the present claim petition has been filed by six petitioners i.e. wife and children of the deceased. Hence, in terms of law laid down by the Hon'ble Supreme Court in the case of Sarla Verma & Ors. (Supra) and Pranay Sethi & Ors. (Supra), 1/4th of earnings of deceased shall be deducted towards his personal and living expenses.
29. Further, in view of the law laid down in the case of Pranay Sethi & Ors. (Supra), the petitioners are also held entitled to addition of 40% of earning of the deceased towards future prospects as the deceased was below the age of 40 years at the relevant time of accident. Thus, the loss of dependency in the petitioners case comes to Rs. 34,96,500/- {(Rs.18,500/-X 12 X 15 X 3/4 X 140/100)}.
(ii) COMPENSATION UNDER NON-PECUNIARY HEADS
30. In terms of propositions of law laid down by the Hon'ble Supreme Court in case of National Insurance Company Ltd. Vs. Pranay Sethi (Supra), the petitioners are also held entitled to amount of Rs.15,000/- each under the head of loss of estate and funeral expenses, i.e. Rs.30,000/- under both heads. Further, in view of Full Court judgment dated 30.06.2020 passed by Hon'ble Apex Court in United India Insurance Co.
MACP No. 154/17 Page 13 of 29Vs. Satinder Kaur @ Satwinder Kaur & Ors. (2020) 06 SC CK 0036 (Civil Appeal Nos. 2705 and 2706 of 2020), the petitioners are entitled to Rs.40,000/- each towards 'loss of consortium', in addition to Rs.30,000/- granted under the conventional head of 'loss of estate' and 'funeral expenses'.
31. Pertinently, the Hon'ble Apex Court has also held in National Insurance Company Ltd. Vs. Pranay Sethi (Supra) that compensation awarded under the conventional heads shall be enhanced at the rate of 10% in every three years and a period of 6 years since then stands already expired. Hence, the petitioners in this case are also entitled to an increase @ 10% on the amount awarded under the conventional head of 'loss of estate', 'funeral charges' and 'loss of consortium' after expiry of three years and further 10% after expiry of another three years. The petitioners are thus awarded a total sum of Rs.3,26,700/- [(Rs.40,000/- + 10% of Rs.40,000/-= Rs. 44,000/- + 10% of Rs. 44,000/- = Rs. 48,400/- X 6 = Rs.2,90,400/-) + (Rs. 30,000/- + 10% of Rs.30,000/- = Rs.33,000/- + 10% of Rs. 33,000/- = Rs. 36,300/-)] under this head.
ISSUE NO.3/RELIEF
32. In view of finding on issue number 2, the petitioners are held entitled to a sum of Rs.38,23,200/- (Rupees Thirty Eight Lakh Twenty Three Thousand Two Hundred only) (Rs.34,96,500/- + Rs.3,26,700/-) along with interest @ 7.5% per annum from the date of filing of claim petition. However, it is directed that the amount of interim award and interest for the suspended period, if any, during the course of this inquiry, shall MACP No. 154/17 Page 14 of 29 be liable to be excluded from the award amount.
APPORTIONMENT
33. Out of the awarded amount, 50% share is being awarded to petitioner no. 1 i.e. wife of deceased and the remaining 10% share each is being awarded to petitioners no. 2 to 6, i.e. children of the deceased.
RELEASE
34. Out of amount awarded to petitioner no. 1, 90% amount is directed to be kept with UCO Bank, Patiala House Court, New Delhi in the Motor Accident Claims Annuity Deposit (MACAD) in form of 175 monthly fixed deposit receipts (FDRs) of equal amounts for a period of 1 to 175 months in succession, as per scheme formulated by the Hon'ble Delhi High Court vide order dated 01.05.2018 in FAO No. 842/2003, titled as Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors. and as implemented vide subsequent order dated 07.12.2018 and order dated 08.01.2021 passed in the said case. The amount of FDRs on maturity would be released in her saving/MACT Claims SB Account opened/to be opened near the place of her residence, as directed vide Order dated 09.02.2018 and the remaining 10% amount is also directed to be released into her above said account, which can be withdrawn through withdrawal form and utilized by her.
35. Petitioners no. 2 to 5 have attained the age of majority. Hence, out of their respective shares each, 90% amount is directed to be kept with UCO Bank, Patiala House Court, New MACP No. 154/17 Page 15 of 29 Delhi in the Motor Accident Claims Annuity Deposit (MACAD) in form of monthly fixed deposit receipts (FDRs) of equal amounts for a period of 1 to 50 months in succession, as per scheme formulated by the Hon'ble Delhi High Court vide order dated 01.05.2018 in FAO No. 842/2003, titled as Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors. and as implemented vide subsequent order dated 07.12.2018 and order dated 08.01.2021 passed in the said case. The amount of FDRs on maturity would be released in their respective saving/MACT Claims SB Accounts opened/to be opened near the place of their residence, as directed vide Order dated 09.02.2018 and the remaining 10% amount is also directed to be released into their above said accounts, which can be withdrawn through withdrawal form and utilized by them.
36. The entire shares of petitioners no.6 shall be kept in FDRs for the period till she attain the age of majority. However, the monthly interest accrued thereon shall also be released in the above bank account of her mother/petitioner no.1 in order to meet their educational and other expenses and amounts of FDRs on maturity would be released in her saving/MACT Claims SB Account opened/to be opened near the place of her residence, as directed vide Order dated 09.02.2018.
37. The disbursement to the petitioners is, however, subject to addition of future interest till deposit proportionately and also deduction of proportionate tax on the interest amount or amount of interim award, if any, to/from their shares.
38. The bank shall not permit any joint names to be added in the savings bank account or MACAD scheme account MACP No. 154/17 Page 16 of 29 of petitioners i.e. the bank account of petitioners shall be individual account and not a joint account.
39. The original fixed deposits shall be retained by the UCO Bank, PHC, New Delhi in safe custody. However, the statement containing FDR numbers, amounts, dates of maturity and maturity amounts shall be furnished by the said bank to the petitioners and the above amount shall be released in account of petitioners by the Manager, UCO Bank, PHC, ND through RTGS/NEFT/or any other electronic mode.
40. The monthly interest be credited by Electronic Clearing System (ECS) in the savings bank account of the petitioner(s) near the place of their residence.
41. The maturity amount of the FDR (s) on monthly basis net of TDS be credited by Electronic Clearing System (ECS) in the above accounts of petitioners.
42. No loan, advance or withdrawal or pre-mature discharge be allowed on the MACAD without permission of the Court.
43. The concerned bank shall not issue any cheque book and/or debit card to petitioner(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 petitioner(s) so that no debit card be issued in respect of the account of the petitioner(s) from any other branch of the bank.
44. The bank shall make an endorsement on the passbook of the petitioner(s) to the effect that no cheque book and/or debit card have been issued and shall not be issued MACP No. 154/17 Page 17 of 29 without the permission of the Court and petitioner(s) shall produce the passbook with the necessary endorsement before the Court on the next date fixed for compliance.
45. It is clarified that the endorsement made by the bank along with the duly signed and stamped by the bank official on the passbook(s) of the petitioner(s) is sufficient compliance of clause above.
LIABILITY
46. During the course of final arguments, Ld. Counsel for Insurance Company has argued that the offending vehicle was not insured with them w.e.f. 31.03.2016 to 30.03.2017. He further argued that the only way to check the genuineness of insurance policy is to check their data base, as per which the insurance policy did not exist and therefore, the insurance policy of the offending vehicle Ex. R2W1/1 was a fake one.
47. To fortify its defense, the Insurance Company has examined its Deputy Legal Claims Manager Sh. Sayok Bandyopadhyay as R2W1. He proved the verification report/certificate dated 22.10.2018 (OSR). This document was not filed along with the written statement of R-2 and was filed only along with the affidavit of evidence without permission of the Court. Upon this objection of Ld. Counsel for petitioners, therefore, this document was de-exhibited and marked as Mark A. Even though, the original has been seen, compared and returned. Mark A, which is verification report/certificate, reads as under :-
"This is to inform you that on verification of the details/document provided by the MACT, Patiala House with the Company records, we state that the said document MACP No. 154/17 Page 18 of 29 alleged to be insurance policy issued by Reliance General Insurance Company Limited (hereinafter "Company"), bearing number 133325621254568875 against the cover- note/proposal number NA for the period 31/03/2016 to 30/03/2017, with the name of the insured as Mr. Dharmendra for vehicle BAJAJ AUTO PASSENGER (make of the vehicle), bearing registration number UP16T5799, engine number 08310 and chasis number 28209, has not been issued by the Company.
For and behalf of Reliance General Insurance Company Limited"
48. The witness R2W1 admitted in his cross examination that the mode of verification qua the genuineness of insurance policy in question is not mentioned in Mark A. This witness has also deposed regarding verification of insurance policy. He has explained that after going through the policy number, they check their data base and verify whether any such policy with the said policy number existed or not. A specific question was put to this witness by Ld. Counsel for petitioners whether the document Ex. R2W1/1 bore the stamp with the name of Insurance Company/R-2 at point X or not. This witness admitted that the stamp at point X bore the name of Insurance Company/R-2, but volunteered to state that it was not their official stamp.
49. During the course of arguments, Ld. Counsel for R2/Insurance Company has argued that once the data base of R2/Insurance Company did not reflect the policy number in question, it was upon the petitioners to prove that the insurance MACP No. 154/17 Page 19 of 29 policy of the offending vehicle was genuine. It was argued that the petitioners should have summoned agent/intermediary mentioned in the insurance policy Ex. R2W1/1 to prove its genuineness. The Court does not agree with the contentions of Ld. Counsel for Insurance Company. Since it was the Insurance Company who took the plea that the said insurance policy was fake one, it was for R-2/Insurance Company to prove the same.
50. It is noted that even though in his cross examination, the witness R2W1 has deposed that the stamp on Mark X on Ex. R2W1/1 was not the official stamp of the Insurance Company, it did not produce any document on record pertaining to March/April 2016 to show what was the official stamp of R2/Insurance Company. Regarding the question how the Insurance Company could have proved that the insurance policy was fake one, I would refer to the judgment dated 02.12.2022 of the Hon'ble High Court of Sikkim at Gangtok in MAC App No. 07/2020 titled as The Branch Manager, Oriental Insurance Company Ltd. Vs. Padam Bahadur Rai & Ors. ; MAC App No. 08/2020 titled as The Branch Manager, Oriental Insurance Company Ltd. Vs. Karma Tshering Tamang & Ors. and MAC App No. 09/2020 titled as The Branch Manager, Oriental Insurance Company Ltd. Vs. Karma Tshering Tamang & Ors., wherein it has been observed as under:-
"xxxxx 10 (i).The Appellant Company in order to establish that Exhibit10 was a false document produced Exhibits 'C1' and 'C2' claiming that these two documents are samples of original Certificates issued by the Appellant. In this context, we may usefully refer to the evidence-on-affidavit of the MACP No. 154/17 Page 20 of 29 witness, Bikash Roy Pradhan, the Branch Manager of the Appellant Company for twenty-five years. According to him, the Appellant Company has different Branches and in the State of Sikkim they have a single Branch,at Gangtok. They classified this Branch through their Branch Code "313203".
The first six digits in the Policy denote their Branch Code followed by the Policy Number, viz.,„313203‟,in „31‟ being the Motor Vehicle Department Code and the next four digits denoting the Policy Number and the remaining numbers the Policy Serial Number. That, in every genuine Policy the "collection date"and the "Policy issuing date"will be the same. Pausing here for a moment, on careful scrutiny of both Exhibit 10 and Exhibit 'C1' and Exhibit 'C2', "the collection date" is found mentioned in the document, but there is in fact no column styled as "Policy issuing date" found on the documents, although Exhibit 10, Exhibit 'C1' and Exhibit 'C2' bear identical dates of 30-07-2015 at the end of the policy document. No documentary evidence was put forth to substantiate the assertion that "313203" was the Branch Code for Sikkim,nor was it clarified as to which Region "313719" allegedly an alien number was issued to,if at all.
(ii) It was his further evidence that a Policy issued by their Office depicts the Bar Code with the Insurance Regulatory Development Authority (IRDA) Registration Number. While mulling over this evidence,it emerges that no document was furnished before the Learned Tribunal to establish that the IRDA registration number is contained in the Bar Codes. It was deposed that at the relevant time, the scheduled premium for Third Party Policy for 10 + 1(probably indicative of the seating capacity of the vehicle,with driver) was ₹13,265/-(Rupees thirteen thousand, two hundred and MACP No. 154/17 Page 21 of 29 sixty five) only, which is not reflected in Exhibit 10. Momentarily pausing here, it is pertinent to notice that no schedule of premium was furnished for the Learned Tribunal to hold that the premium to be paid for that particular policy (Exhibit 10) would be ₹13,265/-(Rupees thirteen thousand, two hundred and sixty five) only. According to the witness, every Saturday and Sunday,their Office remains closed,as per the guidelines of the IRDA, Government of India, however the date of collection "12- 04-2015" reflected in Exhibit 10, fell on a Sunday, hence no collection could have been made on that day.
(iii) The witness went on to identify Exhibit 'C4' as the Computer generated receipt dated 12-04-2015 to support his evidence that no collection could have been made on the said date. On this count, relevantly it has been extracted from the witness during his cross-examination that, Rajen Tamang was the Company‟s Agent and duly authorised to collect the premium. Thus, if the Office was closed on 12- 04-2015 being Sunday,it can safely be assumed that the amount could well have been deposited by the Agent on any other day,authorized as he was,to collect insurance premium. No evidence was furnished to prove that on the date of deposit of premium a copy of the Insurance Policy is to be unfailingly made over to the Insurer. The witness went on to depose that the seal and signature appearing in Exhibit 10 does not belong to the Appellant Company, hence Exhibit 10 is neither a genuine policy nor issued by their Office. On this aspect,it is pertinent to remark that the original seal of the Company or the original signature of the Agent were not furnished for comparison by the Learned Tribunal,with the seal and signature affixed on Exhibit 10. Without such comparison, there can be no authoritative MACP No. 154/17 Page 22 of 29 conclusion that Exhibit 10 is a fake document. As per the witness,on 30-07-2015 only two Insurance Policies were issued by the Office of the Opposite Party No.3 and the Office was not in receipt of the premium amount pertaining to the accident vehicle. Although Exhibit 'C1'and Exhibit 'C2' were produced as the Computer generated Insurance Policies issued to one Kapil Kumar Pradhan and one Uttam Pradhan respectively, it does not establish the contention that on that day only two Policies were issued. It may well be assumed that records of other Policies issued on that day were not printed out. The Appellant is required to furnish the entire records maintained to lend authenticity to their claims."
51. By applying the above said observations to the present case, it is noted that R-2/Insurance Company has not led any such evidence. The Court is therefore, unable to reach any authoritative conclusion that Ex. R2W1/1 is either a fake insurance policy or not issued by the Insurance Company.
52. Therefore, all the respondents are though being held jointly and severally liable to pay the awarded amount of compensation to petitioners, but respondent no.2 being insurer of offending vehicle, is directed to deposit the award amount with UCO Bank, Patiala House Court Branch, along with interest @ 7.5% per annum from the date of filing of claim petition by RTGS/NEFT/IMPS in bank account being maintained in the above said bank in name of this tribunal within 30 days from today, failing which it is liable to pay interest at the rate of 9% per annum for the period of delay. In case even after lapse of 90 days from today, respondent no. 2 fails to deposit this MACP No. 154/17 Page 23 of 29 compensation with interest, in that event, in light of judgment of the Hon'ble High Court of Delhi passed in the case of New India Assurance Company Limited Vs. Kashmiri Lal 2007 ACJ 688, this compensation shall be recovered by attaching the bank account of respondent no. 2 with a cost of Rs.5,000/-.
53. The respondent no. 2 shall inform the petitioners and their counsels through registered post that the awarded amount has been deposited so as to facilitate them to collect the same.
54. A copy of this award be given to the parties free of cost or be sent to them by email. Ahlmad is directed to send a copy of the award to Ld. Metropolitan Magistrate concerned and Delhi Legal Services Authority in view of Judgment titled as Rajesh Tyagi Vs. Jaibir Singh & Ors. passed in FAO No.842/2003 dated 12.12.2014.
55. Further, Nazir is directed to maintain the record in Form XVIII as per the directions given by the Hon'ble Delhi High Court in the above case on 08.01.2021.
56. The particulars of Form-XVII of the Modified Claims Tribunal Agreed Procedure, in terms of directions given by the Hon'ble Delhi High Court in the above case on 08.01.2021, are as under:
1. Date of the accident 03.09.2016
2. Date of filing of Form I- First N.A. Accident Report (FAR)
3. Date of delivery of Form-II to the N.A. victim(s)
4. Date of receipt of Form-III from N.A. the Driver
5. Date of receipt of Form-IV from N.A. the owner MACP No. 154/17 Page 24 of 29
6. Date of filing of the Form-V- N.A. Interim Accident Report (IAR)
7. Date of receipt of Form-VIA and N.A. Form VIB from the Victim (s)
8. Date of filing of Form-VII- NA as it is an Detailed Accident Report (DAR) outstation matter.
9. Whether there was any delay or No deficiency on the part of the Investigating Officer? If so, whether any action/direction warranted?
10. Date of appointment of the Not given Designated Officer by the Insurance Company.
11. Whether the Designated Officer of No the Insurance Company submitted his report within 30 days of the DAR?
12. Whether there was any delay or No deficiencies on the part of the Designated Officer of the Insurance Company? If so, whether any action/direction warranted?
13. Date of response of the Legal offer not filed petitioner(s) of the offer of the Insurance Company.
14. Date of the award 19.04.2024
15. Whether the petitioner(s) were Yes directed to open savings bank account(s) near their place of residence?
16. Date of order by which 09.02.2018 petitioner(s) were directed to open savings bank account(s) near his place of residence and produce PAN Card and Adhaar Card and the direction to the bank not issue any cheque book/debit card to the MACP No. 154/17 Page 25 of 29 petitioner (s) and make an endorsement to this effect on the passbook(s).
17. Date on which the petitioner(s) Yet to furnish produced the passbook of their savings bank account near the place of their residence along with the endorsement, PAN Card and Adhaar Card?
18. Permanent Residential Address of As mentioned above the petitioner(s)
19. Whether the petitioner(s) savings Yet to furnish bank account(s) is near his place of residence?
20. Whether the petitioner(s) were Yes examined at the time of passing of the award to ascertain his/their financial condition?
57. File be consigned to record room after compliance of necessary formalities. Separate file be prepared for compliance report and be put up on 25.07.2024.Digitally signed by VRINDA
VRINDA KUMARI
KUMARI Date:
2024.04.19
16:02:16 +0530
Announced in the open court. (Vrinda Kumari)
on 19.04.2024 PO/MACT, New Delhi
Encl: SUMMARY OF COMPUTATION OF AWARD
AMOUNT IN FORM XV
MACP No. 154/17 Page 26 of 29
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN FORM XV
1. Date of accident 03.09.2016
2. Name of the deceased Sh. Sadruddin
3. Age of the deceased 38 years 7 months and 23 days
4. Occupation of the deceased Private job
5. Income of the deceased Rs.18,500/- per month
6. Name, age and relationship of legal representative of deceased :
Sl. No. Name Age Relation
i) Munni Begam 36 years Wife
ii) Shaheen 19 years Daughter
iii) Ruksar 17 years Daughter
iv) Sadab Ashraf 12 year Son
v) Sahnaj 11 years Daughter
vi) Gosi 09 years Daughter
Sl. No. Head Amount Awarded
(Rs.)
7. Income of deceased (A) Rs. 18,500/-
8. Add : Future Prospects (B) Rs. 7,400/-
9. Less-Personal expenses of the Rs. 6,475/-
deceased (C)
10. Monthly loss of dependency Rs. 19,425/-
[(A+B) - C = D]
11. Annual loss of dependency Rs. 2,33,100/-
(D x 12) 12. Multiplier 15
13. Total loss of dependency Rs.34,96,500/-
(D x 12 x E = F) MACP No. 154/17 Page 27 of 29
14. Medical Expenses (G) Nil
15. Compensation for loss of love Nil and affection (H)
16. Compensation for loss of Rs.2,90,400/-
consortium (I)
17. Compensation for loss of estate Rs.18,150/-
(J)
18. Compensation towards funeral Rs.18,150/-
expenses (K)
19. TOTAL COMPENSATION Rs.37,73,200/-
(F + G + H + I + J+K =L) (after deducting
the amount of
Rs.50,000/-
towards interim
award)
20. RATE OF INTEREST 7.5% pa from date
AWARDED of filing of claim
petition till the date
of award to be
deposited within 30
days and 9%
thereafter.
21. Interest amount up to the date of Rs.21,06,703/-
award (M)
22. Total amount including interest Rs.58,79,903/-
(L + M) (rounded off to
Rs. 58,80,000/-)
23. Award amount released P-1=10% share
P-2=10% share
P-3=10% share
P-4=10% share
P-5=10% share
P-6=Nil
24. Award amount kept in FDRs/ P-1=90% share MACAD P-2=90% share P-3=90% share P-4=90%share MACP No. 154/17 Page 28 of 29 share P-5 =90% share P-6=Entire share
25. Mode of disbursement of the Through Bank award amount to petitioner(s)
26. Next date for compliance of the 25.07.2024 award Digitally signed VRINDA by VRINDA KUMARI KUMARI Date: 2024.04.19 16:02:35 +0530 (Vrinda Kumari) PO/MACT, New Delhi 19.04.2024 MACP No. 154/17 Page 29 of 29