Delhi District Court
Permanent Address vs Kailash Kumar on 24 October, 2016
IN THE COURT OF MS. KIRAN BANSAL
P.O. MOTOR ACCIDENTS CLAIMS TRIBUNAL
NORTH-EAST DISTRICT: KKD COURTS : DELHI
MACT No. 361/11 AND NEW NO. 14798/15
FIR NO. 117/11
PS BHAJAN PURA
Unique Case Identification No. 02402CO267612011
SUNIL YADAV
S/o Sh. Jagdish Yadav
R/o F-60, 25 Feet Main Road,
Khajuri Khas, F-Block, Delhi 94.
Permanent address
Belavada, Town/Vill. Belawara,
Anchal, Simri Bakhtiyarpur,
Distt. Saharsa, Pin 852127 ......Petitioner
Versus
1. KAILASH KUMAR
S/o Sh. Rajender
R/o B-135, Gali no. 2,
Bhajan Pura, Delhi -53.
Permanent Address:
Village & P.O. Domer Sal, Bangra,
P.S. Masrak, District Chhapra (Bihar).
2. MUKESH AGGARWAL
S/o Sh. S. K. Aggarwal
Partner M/s Tirupati Cement Products,
C-60,Community Center, Janak Puri, New Delhi 58.
Permanent Address:
Plot no. 139, Rozaka , Meo Industrial Area,
Nuh, Mewat, Haryana.
3. ICICI LOMBARD GENERAL INSURANCE CO.
Zenith House, Keshavarao Khadye Marg,
2nd Floor, Mahalaxmi, Mumbai 400034.
Local Address:-
ICICI Lombard General Insurance
315, 3rd Floor, Aggarwal City Mall,
MACT Case No. 443/11 Kiran Bansal
P.O. MACT (NorthEast), Delhi
Page 1/20
Road No. 44, Opposite Rani Bagh,
Police Chowki: Pitam Pura, New Delhi 34.
4. M/s Tirupati Cement Products.
Delhi Address: C-60, 1st Floor Community Center.
Janak Puri, New Delhi 110 058.
Permanent address: Plot no. 139,
Village Rozaka Meo Industrial Area,
Tehsil Nuh, District Mewat, Haryana.
.......Respondents
1. Date of Institution of claim petition :05.09.2011
2. Date of Decision :24.10.2016 APPLICATION U/S 166 & 140 M.V. ACT 1988 FOR GRANT OF COMPENSATION AWARD
1. Petitioner being the injured filed the present claim petition u/s 166 & 140 MV Act seeking the compensation. It is the case of the petitioner that on 19.03.2011 at about 10 p.m., petitioner was lying on his cot outside his house on Kuchcha road. Petitioner's brother Sanjit Kumar and his other friends were preparing to sleep near him. At that time respondent no. 1 was driving crane number HR 74 4084 which was driven by respondent no. 1 in a rash and negligent manner and the said crane hit the cot of the petitioner. As a result of which petitioner received grievous injuries. Petitioner was taken to GTB Hospital and MLC was prepared. Police Station Bhajan Pura has registered the offence vide FIR No. 117/11 U/s 279/337 IPC against the respondent no.1. It is further averred that petitioner was Baildar and earned Rs. 6,100/- per month.
2. Summons of the petition were issued to the respondents. Vide order dated MACT Case No. 443/11 Kiran Bansal P.O. MACT (NorthEast), Delhi Page 2/20 20.04.2012 respondent no. 1 was proceeded ex-parte and vide order dated 03.11.2012 respondent no. 2 was proceeded ex-parte. Vide order dated 16.09.2013 respondent no. 2 filed WS alongwith application for setting aside the ex-parte order. As per WS, respondent no.2 stated that offending vehicle was insured with the ICICI Bank Lombard General Insurance Company Ltd. And driver was having the valid DL issued by Indian Driving License Office of the Asst. Regional Transport officer ,Fatehgarh, Farrukhabad, UP vide license on 2513 dated 18.04.2003 and license validity 05.12.2008 to 04.12.2011 to drive the offending vehicle bearing no. HR 74 4084. The petitioner was himself responsible for the accident as he was sleeping on cot which was lying in the open road.
3. WS was also filed on behalf of respondent no. 3 admitting that vehicle bearing no. HR 74 4080 was insured with the respondent no. 3 vide policy no. 3008/59349691/00/000 valid from 07.05.2010 to 06.05.2011.
4. WS was also filed on behalf of respondent no. 4 .
5. After completion of the pleadings, following issues were framed :
1. Whether petitioner sustained injuries in motor accident caused by rash and negligent driving of vehicle no. HR 74 4080 by respondent no. 1 on 19.03.2011 at about 10 p.m., at B-135, Gali no. 2, Bhajan Pura, Delhi near Rohit Automobiles and Wazirabad Road, on Kucha Road, within the jurisdiction of Police Station Bhajan Pura? OPP
2. Whether petitioner is entitled to compensation? If so, what amount and from whom?
3. Relief
6. As the vehicle number was wrongly mentioned in the petition as well as at the time of framing of issues,issue no. 1 was re-framed vide order dated 07.04.2016 as under:
MACT Case No. 443/11 Kiran Bansal P.O. MACT (NorthEast), Delhi Page 3/20 Whether petitioner sustained injuries in motor accident caused by rash and negligent driving of vehicle no. HR 74 4084 by respondent no. 1 on 19.03.2011 at about 10:00 pm at B-135, Gali no. 2, Bhajan Pura,Delhi near Rohit Automobiles & Wazirabad Road on Kucha Road within jurisdiction of PS Bhajan Pura?OPP
7. Petitioner has examined himself as PW1 and has tendered his affidavit Ex. PW 1/A and relied upon the documents i.e Ex. PW 1/1 to Ex. PW 1/100 including PW1/90A, B, C, D, PW1/46A Ex. PW 1/75A. However, Ex. PW 1/70 was not produced in original and hence, this document was de-exhibited and is Mark A. On 29.05.2015 PW 1 Sh. Sunil Yadav was recalled for further examination in chief and has tendered his affidavit Ex. PW 1/B and has relied upon the documents i.e original medical records Ex.PW 1/101 to Ex.PW1/109, certified copies of the criminal case record Ex. PW1/110 to Ex. PW 1/116, voter ID card Ex.PW 1/117, original medical record Ex. PW1/118 to Ex.PW1/121. Sh. Sanjit Kumar Yadav has been examined as PW 2 and has tendered his affidavit Ex. PW 2/A. Sh. Jai Deep Mehra has been examined as PW 3, Sh. Chander Prakash Bansal has been examined as PW4, IO SI Virender Singh has been examined as PW 5, Sh. Manoj Kr. Yadav has been examined as PW 6, Dr. Ashesh Kumar Jha has been examined as PW 7. Respondent no. 3 has been examined Sh. Dinesh Tiwari, Junior Clerk,ARTO Kanpur Dehat, Kanpur UP as R3W1, Sh. Narender Kumar, Accountant, Office of Secretary RTA,Nuh,Mewat Haryana has been examined as R3W2, Sh. Gautam Bhatnagar has been examined as R3W3.
8. I have heard the counsels for injured and insurance and gone MACT Case No. 443/11 Kiran Bansal P.O. MACT (NorthEast), Delhi Page 4/20 through the entire evidence on record as well as the written arguments filed carefully.
9. My issuewise findings are as below :
ISSUE NO.1 Whether petitioner sustained injuries in motor accident caused by rash and negligent driving of vehicle no. HR 74 4084 by respondent no. 1 on 19.03.2011 at about 10:00 pm at B-135, Gali no. 2, Bhajan Pura,Delhi near Rohit Automobiles & Wazirabad Road on Kucha Road within jurisdiction of PS Bhajan Pura?OPP PW1 i.e. petitioner has filed his chief affidavit reiterating the facts mentioned in the petition. Police Station Bhajan Pura has registered the offence vide FIR No. 117/11 U/s 279/337 IPC against the respondent no.1.
During cross examination PW 1 deposed that he was sleeping on the cot at the abovesaid date and time . He had put his cot on the kuchcha sadak in front of his house and it was a service road. At the time of the accident there was kuchcha road between the main Wazirabad road and Rohit Automobiles but at present there exist pucca service road. It is further deposed that his cot was not on the foot path and he had not seen the crane/offending vehicle coming towards his cot. It is further deposed that the tyre of the crane/offending vehicle had not crossed/passed over his body but its front part had passed over his body and for this reason his cot had broken down and he received injuries. He does not know as to which portion of the crane had hit him and caused injuries to him.
MACT Case No. 443/11 Kiran Bansal P.O. MACT (NorthEast), Delhi Page 5/20 He has further deposed that he received injuries on his pelvic region.
Sh. Sanjit Kr. Yadav has been examined as PW 2 and has tendered his affidavit Ex. PW 2/A. During cross examination he deposed that his brother Sunil was sleeping outside his house and he was preparing to sleep besides his brother on a separate cot alongwith his friend Gulab. He had not seen the crane before the accident. It is further deposed that he came to know that his brother had suffered injuries after the crane had hit the RCC pole and his brother. The crane was coming from the side of Bhajan Pura chowk and going towards Khajuri Chowk. The crane had firstly hit RCC electricity pole and thereafter, had hit the cot on which his brother was sleeping.
SI Virender Singh has been examined as PW 5, who deposed that FIR No. 17/11, PS Bhajan Pura Ex. PW 1/3 which was registered on the basis of his endorsement on rukka. He has prepared the documents Ex. PW1/ 4 to Ex. PW1/ 7, Ex. PW1/10, Ex. PW1/15, Ex. PW1/ 17,Ex. PW 1/ 18, Ex. PW 1/22 Ex. PW 1/90C each of these documents bears his signature at point B. He has collected documents annexed as PW 1/8,PW1/9, Ex. PW1/11 to Ex. PW 1/14, Ex.PW 1/16 and Ex. PW 1/19, Ex.PW 1/19 Ex. PW 1/21, Ex.PW 1/23 ,PW 1/90B during the course of his investigation. Ex.PW1/21, Ex. PW 1/23 are certified copies of the documents. During cross examination he deposed that there is a service lane from point X to Y and the cot of the petitioner was on the service road Mark X to Y. The cot shown at point B on the site plan Ex. PW 1/5 in the gali Mark A to A is wrong in fact the cot was at point A in circle at the junction of the two gali and the service MACT Case No. 443/11 Kiran Bansal P.O. MACT (NorthEast), Delhi Page 6/20 road. The driver of offending crane was not holding any valid driving license as per his investigation.
Nothing has come forward in the testimony of PW 1 to disbelieve his version regarding the manner of accident. On the other hand, respondent no.1 /driver has also not stepped into the witness box to state as to how accident occurred and to depose that he was not at fault and was not driving the vehicle in rash and negligent manner or that no accident occurred with his vehicle.
Moreover, to determine the negligence, I am being guided by the judgment of Hon'ble High Court of Delhi in 2009 ACJ 287, National Insurance Company Limited Vs. Pushpa Rana wherein in the Hon'ble High Court held that in case the petitioner files the certified copy of the criminal record or the criminal record showing the completion of the investigation by the police or the issuance of charge sheet under section 279/304 A IPC or the certified copy of the FIR or in addition the recovery memo and the mechanical inspection report of the offending vehicle, these documents are sufficient proof to reach to the conclusion that the driver was negligent. It was further held that the proceedings under the Motor Vehicles Act are not akin to the proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Further, in Kaushnumma Begum and others v/s New India Assurance Company Limited, 2001 ACJ 421 SC, the issue of wrongful act or omission on the part of driver of the motor vehicle involved in the accident has been left to a secondary importance and it was held that, mere use or involvement of motor vehicle in causing bodily injuries or death to a human being or damage to property would made the petition MACT Case No. 443/11 Kiran Bansal P.O. MACT (NorthEast), Delhi Page 7/20 maintainable under section 166 and 140 of the Act. It is also settled law that the term rashness and negligence has to be construed lightly while making a decision on a petition for claim for the same as compared to the word rashness and negligence as finds mention in the Indian Penal Code. This is because the chapter in the Motor Vehicle Act dealing with compensation is a benevolent legislation and not a penal one.
Therefore , from the statements of the PW 1 Sunil Yadav and Sanjit Kr. Yadav and in view of the record of the criminal case regarding the accident, it is proved that injured Sunil Yadav sustained injuries in the accident which occurred on 19.03.2011 due to rash and negligent driving of offending vehicle bearing no. HR 74 4084 driven by its driver i.e Respondent no. 1. This issue is decided accordingly.
10. ISSUE NO. 2Whether petitioner is entitled to compensation? If so, to what amount and from whom?
Sh. Jai Deep Mehra, M/s Janta Medical Store has been examined as PW3,who deposed that original cash memos Ex. PW1/50 to Ex PW 1/58 and Ex.PW 1/86 to Ex. PW1/89 and Ex.PW 1/99 were also issued from his shop. Ex. PW 1/50 to Ex. PW 1/54, Ex.PW 1/56 to Ex. PW /58 and Ex. PW 1/87 have been signed by him at point A. Ex. PW 1/55 , Ex. PW 1/86 to Ex. PW 1/89 and Ex. PW1/99 have been signed by his employee Pawan Kumar at point A under his supervision and presence. During cross examination he stated that he had brought the bill books containing carbon copies of the cash memos issued by their shop. Petitioner has not MACT Case No. 443/11 Kiran Bansal P.O. MACT (NorthEast), Delhi Page 8/20 returned any medicine pertaining to the cash memos filed in the court and the medicine were sold to the petitioner after seeing the prescriptions of the doctor.
Sh. Chander Prakash Bansal, S/oLate Assa Ram Gupta, M/s Pharmacy shop has been examined as PW 4, who proved the original cash memos Ex. PW1/59 to Ex.PW 1/69 and Ex. PW 1/90. During cross examination he deposed that he has brought the computerized copies of the cash memos issued by their shop and none of these cash memos have been cancelled.
Sh. Manoj Kr. Yadav has been examined as PW 6, who deposed that petitioner Sunil Yadav and his brother Sanjiv Yadav work with him as baildars/labourers. The salary certificate in respect of employment of petitioner Sunil Yadav is Ex. PW 1/71. Salary certificate in respect of employment of Sangeet Yadav is Ex. PW 1/72. During cross examination he deposed that he has employed 6-7 labourers and he used to maintain diary of his employees for marking their attendance but he has stopped that practice and have issued cards on which attendance is mark. He is paying Rs. 6000/- to 7000/- per month to each of his employees.
Dr. Ashesh Kumar Jha, Asst. Professor, Surgery, GTB Hospital, Delhi who has proved the patient discharge summary Ex.PW 1/24. During cross examination he deposed that he was member of the team which was involved in the management of the patient. The supra pubic Catheter drainage was done in an emergency as the patient had ruptured urethra and thereafter, the patient had undergone urethroplasty for urethral stricture. The condition of the patient at the time of discharge on 24.08.2011 was MACT Case No. 443/11 Kiran Bansal P.O. MACT (NorthEast), Delhi Page 9/20 satisfactory. As per document Ex PW 1/75A on 04.10.2011 there was no pus discharge from the SPC site as well as periurethral site. The procedure of post urethra plasty peri catheter dye study was done to find out whether the surgery was successful or not and whether there was any blockage in the urethra . The test result shows that there was no blockage and subsequently the urethral catheter was removed and SPC was clamped . The Third drain pipe was removed before discharge of the patient after the surgery. On 25.10.2011 when the patient started developing straining during micturation for which urethral dilation with 24/28 fr was done and the dilator could be passed easily into the bladder which means that there was no strictre on that day. Since the patient was fine on 08.11.2011 and he was passing urine easily perurethra therefore, the SPC was changed. On 20.11.2011 the patient was examined, the patient complaint of foreign body sensation and pus discharge from SPC site but he was passing urine per urethra and there was no other complaints. The urine culture and sensitivity report as per Ex . PW1/79 did not show any abnormal finding or pus. The urine was passing in good stream and SPC was therefore, removed. The pus discharge was first noticed as per the record on 29.11.2011. Pus could have also occurred due to unhygienic condition.
It is stated by the petitioner in his chief affidavit that he suffered grievous injuries. Petitioner has stated that he incurred an amount of Rs. 6673/-on his treatment and has filed medical bills of Rs. 6673/- in support of his claim. During cross examination petitioner has deposed that he was admitted in the hospital firstly 19.03.2011 and was discharged on 31.03.2011 and secondly he was admitted in the hospital 16.08.2011 and discharged on MACT Case No. 443/11 Kiran Bansal P.O. MACT (NorthEast), Delhi Page 10/20 24.08.2011.
Ld. counsel for insurance company has argued that the injured was discharged on 04.10.2011 and his condition was satisfactory, therefore, for any complication arising thereafter, insurance company is not responsible and not liable to compensate the injured for any such complication arising thereafter. Ld. Counsel for insurance company also argued that developing and discharging of puss was due to the unhygienic condition and it was duty to the injured to maintain hygienic condition. This argument of the insurance company to my mind is not sustainable. PW 7 has merely expressed a possibility that the puss could have occurred due to unhygienic condition. However, there is no clear cut and definite opinion that the puss had developed only due to unhygienic condition and not due to any other reason. The puss had developed on the injuries which was sustained in the accident and could have developed due to several reasons. Also the injured seems to be belonging from poor economic background and therefore, even if he is not able to maintain proper hygenic condition he cannot be faulted. It would rather be adding to his miseries , if it is held that he cannot be compensated for the period of rest after 4.10.2011, when he was discharged. The treatment papers filed on record shows that the condition of the injured deteriorated after he was discharge from the hospital and catheter was applied. He certainly cannot be expected to be working in such condition and was thus, practically on bed rest. He would have also required an attendant to look after him in such condition. Looking to the fact of the present case, it is felt that the injured would have taken rest for at least 2 years.
MACT Case No. 443/11 Kiran Bansal P.O. MACT (NorthEast), Delhi Page 11/20 As far as income of the petitioner is concerned it is stated by petitioner in the claim petition that petitioner was baildar and was earning Rs. 6100/- per month. The minimum wages on the date of accident were also Rs. 6084/-. In the absence of any rebuttal evidence, the income of the petitioner is considered as per salary slip Ex. PW 1/71 to be Rs. 6100/- per month.
Keeping in view the nature of injuries suffered by the Claimant and the fact that he was under constant treatment, he needed an Attendant to look after him and the claimant is therefore, entitled to attendant charges. Petitioner has not filed any record to show that he has received help of special attendant however, he has stated that his brother was continuously attending him. In Delhi Transport Corporation and Anr. v. Lalita AIR 1981 Delhi 558, a Division Bench of Hon'ble Delhi High Court held that a victim cannot be deprived of compensation towards gratuitous services rendered by some of the family members, for the benefit of the tortfeasor. Looking to the nature of injuries of the injured and the long duration of the treatment it is deemed fit that a lump sum of Rs. 1,00,000/- be awarded as compensation towards Attendant charges. Petitioner has not shown anything for spending money on special diet and conveyance but he has gone for follow up check ups as per the treatment record filed and must have been given special diet for speedy recovery.
Considering all the facts & circumstances and material on record, I am of the opinion that petitioner is entitled to compensation as under :
Pain & suffering Rs.80,000/-
Special diet Rs. 40,000/-
Conveyance Rs. 25,000/-
Attendant charges Rs.1,00,000/-
Loss of Income Rs. 1,46,400/-
MACT Case No. 443/11 Kiran Bansal
P.O. MACT (NorthEast), Delhi
Page 12/20
Medical bills Rs. 6,673/-
___________
Total Rs. 3,98,073/-
Thus, the total compensation amount is Rs.3,98,073/-.
11. Liability Sh. Dinesh Tiwari, Junior Clerk, ARTO has been examined as R3W1 , who has brought the summoned record and the letter of ARTO Farukhabad for producing the record of driving license no. 2513/Farukhabad/2003 issued in the name of Sh. Kailash Kumar S/o Sh. Rajender Rai. The said license was issued for the period 18.04.2003 to 17.04.2023 for driving motorcycle and LMV (private). It is further deposed that an amount of Rs. 140/- has been shown to be deposited vide receipt no. 834414 dated 18.04.2003 but no receipt was issued on 18.04.2003 as per the cash book brought by him. The said license has been shown to be endorsed for transport vehicle w.e.f 05.12.2008 to 04.12.2011 . The payment of Rs. 80/- has been shown vide receipt no. 62768 dated 05.12.2008 but the said entry is not found in the cash book. Since the entries of the receipts are not available in the cash book. The DL is not valid as per the letter of the ARTO, Farukhabad bearing no. 314/LS/2015 dated 11.08.2015 addressed to the Hon'ble Court. The original letter is Ex. R3W1/1. He has also seen the letter no. 299/LC/15 dated 28.07.2015 which is signed by Sh. Dev Mani Bharti, ARTO, Farukhabad at point A. The said letter is Ex. R3W1/2. He has also seen the letter no. 1784/SP/14 dated 06.06.2014 which is already on record. The same is signed by Sh. U. P. Singh, the then ARTO who has since been transferred at point B. The said letter is Ex. R3W1/3. Photocopy of the license register of the license 251303 is Ex. R3/W1/4, entry MACT Case No. 443/11 Kiran Bansal P.O. MACT (NorthEast), Delhi Page 13/20 regarding receipt no. 834414 at point A and the entry for receipt no. 612768 is at point B, copy of the cash book for 2003 is Ex. R3/W1/5, copy of cash register for 2008 is Ex. R3/W1/6. It is deposed by him that since the payment was not received by the office of ARTO, the DL no. 2513/2003 is not genuine. During cross examination he deposed that letters Ex. R3/W1/1 to Ex. R3/W1/3 are issued by the concerned ARTOs and FIRs have been lodged against the erring officers who did not make the necessary entries in the cash registers and made the entries in the license register. It is further deposed that amount received towards issuance of license was not deposited in the Govt. Treasury by the officials of the licensing Authority. The FIR was lodged as there was gross misappropriations of funds, issuance of fake licenses and manipulation in the pages of the registers.
Sh. Narender Kumar, Accountant, Office of Secretary RTA , Nuh, Mewat, Haryana has been examined as R3W2, who has brought the record pertaining to the registration of vehicle no. HR 74 4084 which was registered in the name of Tirupati Cement Product, Plot no. 139, Roz Ka Meo Industrial Area, Tehsil Nuh, Mewat. The vehicle was hydraulic mobile crane and its unladen weight was 10,555 kgs. The Photocopy of the registration number is Ex. R3W2/1.
As per the evidence of IO PW 5, the driver was not holding any DL and even in the chargesheet Section 3/181 M. V. Act was added against the driver and Section 5/181 M. V. Act was added against the owner of of the offending vehicle. However, at the time of inquiry in the present court, DL of respondent no. 1 was filed by the counsel for respondent no. 2 on16.09.2013 and a MACT Case No. 443/11 Kiran Bansal P.O. MACT (NorthEast), Delhi Page 14/20 direction was given to verify the DL. The DL was not found genuine, as per the report filed. Even as per the testimony of R3W1 the DL of respondent no.1 was not genuine. Respondent no. 1 has not entered into the witness box to depose that he had passed the driving test and had appeared before the Farukhabad Licensing Authority for issuance of the licence. License issued by Indian Driving License, Office of the Asst. Regional Transport Officer, Fatehgarh , Farrukhabad, UP was endorsed for HTV on 05.12.2008. If the respondent no. 1 has undergone any training for learning to drive heavy transport vehicle or heavy passenger motor vehicle then he should have led cogent evidence and should have entered into the witness box to state from which training school he had obtained training for driving Heavy Transport Vehicle before getting his license endorsed for Heavy Transport Vehicle from the office of ARTO, Farukhabad. He has also not entered into witness box to state that he has deposited the requisite fee for issuance of license and had passed the requisite driving test and thereafter, got the license issued from the Farukhabad Authority. As no such evidence is led on behalf of respondent no. 1 & 2, they have failed to prove that license of respondent no. 1 allegedly issued from Farukhabad Licensing Authority is a genuine license.
Ld. counsel for insurance company has argued that as the licence of the respondent no. 1 has been found to be fake, no liability can be fastened upon the insurance company. In Lal Chand vs Oriental Insurance Co. Ltd 2006 ACJ 2161, it was observed, "the insurer, namely the Insurance Company, has to prove that the insured, namely the owner of the vehicle, was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition MACT Case No. 443/11 Kiran Bansal P.O. MACT (NorthEast), Delhi Page 15/20 of the policy regarding use of vehicles by a duly licensed driver or one who was not disqualified to drive at the relevant point of time."
In United India Insurance Co. Ltd. vs. Lehru and Others, (2003) 3 SCC 338, it is held as under
" When an owner is hiring a driver he will therefore have to check whether the driver has a driving licence. If the driver produces a driving licence which on the face of it looks genuine, the owner is not expected to find out whether the licence has in fact been issued by a competent authority or not. The owner would then take the test of the driver. If he finds that the driver is competent to drive the vehicle, he will hire the driver. We find it rather strange that insurance companies expect owners to make enquiries with RTOs, which are spread all over the country, whether the driving licence shown to them is valid or not. Thus where the owner has satisfied himself that the driver has a licence and is driving competently there would be no breach of Section 149(2)( a )( ii ). The insurance company would not then be absolved of liability. If it ultimately turns out that the licence was fake, the insurance company would continue to remain liable unless they prove that the owner/insured was aware or had noticed that the licence was fake and still permitted that person to drive. More importantly, even in such a case the insurance company would remain liable to the innocent third party, but it may be able to recover from the insured. This is the law which has been laid down in Skandia (1987) 2 SCC 654, Sohan Lal Passi (1996) 5 MACT Case No. 443/11 Kiran Bansal P.O. MACT (NorthEast), Delhi Page 16/20 SCC 21 and Kamla (2001) 4 SCC 342 cases. We are in full agreement with the views expressed therein and see no reason to take a different view."
In the instant case, the respondent no. 1 & 2 have not led any rebuttal evidence to prove that the respondent no. 1 had a valid license. Moreover, the owner has not stated that he had seen and examined the driving licence produced by the driver or took the test of the driving of the driver and found that the driver was competent to drive the vehicle and thereafter, appointed him as driver of the vehicle in question. As, the owner has not satisfied himself that the driver has a valid licence and is driving competently, the Insurance Company is entitled to recovery rights.
Hence, I am of the opinion that respondent no.3 being insurance company is liable to pay the compensation on behalf of respondents no.1 and 2 and may thereafter, recover the same from respondents no. 1 & 2.
12. Relief Injured was examined as per clause 26 of the Modified Claims Tribunal Agreed Procedure wherein he stated that he is 5 th class passed and presently unemployed . He has mother, father and two elder brothers in his family. He has stated that the amount he would get from the tribunal will be utilised by him for paying the loan and rest of the amount will be deposited infixed deposit ,so that he can use it for his treatment , if any and for his expenditure till the period of his unemployment.
MACT Case No. 443/11 Kiran Bansal P.O. MACT (NorthEast), Delhi Page 17/20 Accordingly, Respondent no. 3 ICICI Lombard General Insurance Co. Ltd. is directed to pay a sum of Rs. 3,98,073/ (including interim compensation, if any), by way of depositing cheque in the account of Sunil Yadav, petitioner having account in UCO Bank, Karkardooma, Delhi bearing account no. 20780110096383 along with interest @ 9% per annum from date of filing of the petition (05.09.2011) within 30 days. In default, respondents no.3 shall be liable to pay penal interest on the award amount @ 12% p.a. for the default period.
In Reliance General Insurance Co. Ltd. Vs. Vimla Devi, MAC APP. 547/2016 vide its order dated 25/07/2016 Hon'ble High Court of Delhi has observed that "This court is of the view that if the deceased would have been alive, his family members would have received a portion of his income every month and not a lump sum amount at any point of time. The purpose of awarding compensation is to put the family members of the deceased in the same financial position. As such, it would be appropriate to ensure that the family members get reasonable amount of compensation every month like they would have received if the deceased had been alive".
As per clause 28 of the Modified Claim Tribunal Agreed Procedure ,depending upon the financial status and financial need of the claimant, the tribunal has to release the amount as considered necessary and remaining amount be kept in FDR in phased manner. Injured, if would have kept on earning or working, he would have received monthly salary and not lumpsum amount at any point of time.
Bank Manager, UCO Bank, Karkardooma is thus, directed to keep a sum of Rs. 2 Lacs in fixed deposit in the following manner and the remaining amount be released in his account.
MACT Case No. 443/11 Kiran Bansal
P.O. MACT (NorthEast), Delhi
Page 18/20
Sr. Duration of FDR Petitioner no. 1 FDR
No. amount
1 1 year Rs. 40,000/-
2 2 years Rs. 40,000/-
3 3 years Rs. 40,000/-
4 4 years Rs. 40,000/-
5 5 years Rs. 40,000/-
Total Rs. 2,00,000/-
The Bank shall further comply with following directions :-
(a) The interest on the fixed deposits be paid monthly to the injured.
(b) The monthly interest be credited automatically in the saving account of the claimant.
(c) Original fixed deposit receipts be retained by the bank in safe custody. However, a passbook of the FDRs be given to the claimant along with the photocopy of the FDR. At the time of maturity, the fixed deposit amount shall be automatically credited in the savings bank account of the Claimant.
(d) No cheque book be issued to the claimant without permission of the court. However, a photo identity card be issued to the claimant and the withdrawal be permitted upon production of the identity card.
(e) No loan, advance or withdrawal be allowed on the fixed deposits without permission of the court.
(f) The Bank shall not permit any joint name to be added in the savings bank account or fixed deposit accounts of the victim.
(g) Half yearly statement of account be filed by the Bank in the Tribunal.
Copy of the award be sent to the Nodal Officer of the UCO Bank alongwith the court stamped copy of the photographs, specimen MACT Case No. 443/11 Kiran Bansal P.O. MACT (NorthEast), Delhi Page 19/20 signatures, proof of residence and bank account details of the petitioner. (as per clause 27 of the Modified Claim Tribunal Agreed Procedure).
Attested copies of the award be furnished to the concerned parties from court for compliance and be sent to the court of concerned Ld. MM & DLSA.
Put up for compliance on 24.11.2016.
Pronounced in Open Court on (KIRAN BANSAL)
24.10.2016 P.O. MACT(North-East)
KKD Delhi
MACT Case No. 443/11 Kiran Bansal
P.O. MACT (NorthEast), Delhi
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