Delhi District Court
Pramila vs Deepak Singhal on 29 February, 2024
Pramila and ors vs. Deepak and ors.
IN THE COURT OF SH. SUDESH KUMAR-II :
PRESIDING OFFICER : MACT : SOUTH DISTT. : SAKET
COURTS : NEW DELHI
Petition No. : 75349/16
CNR No. DLST01- 000322-2015
PRAMILA AND ORS. VS. DEEPAK AND ORS.
1. Pramila ...wife of deceased
W/o Late Sh. Anil Singhal
2. Shiwam ...son of deceased
S/o Late Sh. Anil Singhal
3. Anshu Singhal ...son of deceased
S/o Late Sh. Anil Singhal
4. Saksham ...son of deceased
S/o Late Sh. Anil Singhal
5. Smt. Indira ...mother of deceased
W/o Late Sh. Om Prakash
All resident of
H.No. 625, Holi chowk,
Devli village, New Delhi - 110062.
....PETITIONERS
Versus
1. Deepak Singhal
S/o Late Om Prakash
R/o H.No. 422 Devli Village
New Delhi.
(driver cum owner of vehicle bearing no. DL-1LM-8996)
2. HDFC Ergo General Insurance Co. Ltd.
Having its office
1st Floor, 165-166, Backbay reclamation
H.T. Parekh, Church Gate,
Mumbai - 400020
(Insurer of vehicle bearing no. DL-1LM-8996)
3. Raj Kumar
S/o Sh. Diwan Chand
R/o Village Akabarpur
Barota, PS Kundli, Sonipat,
Suit No.75349/16 1/34
Pramila and ors vs. Deepak and ors.
Haryana
(Driver of vehicle bearing no. HR-56-6275)
4. Bhim Singh
S/o Sh. Thana Rao
R/o H.No. 79, Swyam Sidh Colony,
Punjabi Bagh, West New Delhi.
(Owner/insured of vehicle bearing no. HR-56-6275)
5. Pankaj Aggarwal
S/o Sh. Surender Aggarwal
R/o RZ-B-100, Nihal Vihar,
Nanglok Delhi.
(Subsequent Purchaser of vehicle no. HR-56-6275)
6. HDFC Ergo General Insurance Co. Ltd.
Having its office
1st Floor, 165-166, Backbay reclamation
H.T. Parekh, Church Gate,
Mumbai - 400020
(Insurer of vehicle bearing no. HR-56-6275)
....... respondents
Date of Institution : 28.02.2015
Date of reserving of judgment/
order : 30.01.2024
Date of pronouncement : 29.02.2024
JUDGMENT:
1. Initially, in this matter claim petition was filed on 28.02.2015 by the petitioners under Section 140 & 166 of Motor Vehicle Act, 1988 (hereinafter referred to as "M.V. Act") being the LRs of deceased Anil Singhal claiming compensation for his untimely death in an accident which took place on 11.10.2014 at about 7.30 PM at Sector 6, G.T. Road, Karnal Near Gurudwara, Karnal due to the rash and negligent act of the driver of the Suit No.75349/16 2/34 Pramila and ors vs. Deepak and ors.
offending vehicle bearing no. DL-1LM-8996.
2. The brief facts as per the petition were that on 11.10.2014 at 7.30 PM the deceased Anil Singhal was travelling as a helper in truck/canter bearing no. DL-1LM-8996 and was coming to his residence at Delhi from Ambala. The vehicle in which the deceased was travelling was being driven by the respondent no. 1 Deepak Singhal in a very rash and negligent manner. When the said vehicle reached at Sector -6, GT Road, Karnal near Gurudwara, PS Civli Line, Karnal, Haryana, it suddenly collided with one Tanker/Traula. Due to this impact, the deceased Anil Singhal sustained fatal injuries.
3. This petition was filed by the petitioners only against the respondent no. 1 Deepak Singhal being the driver of the alleged offending vehicle. On the very next date of hearing, WS was filed on behalf of the respondent Deepak Singhal.
4. In his written statement, the respondent no. 1 denied all the allegations and stated that the deceased was the cleaner of the vehicle in question, hence this is a case of work-man compensation and should have been filed before the Court of Labour Commissioner. He further contended that the petition is not maintainable as no accident had ever taken place with the vehicle of the respondent. The petitioner with ulterior motives has implicated the vehicle of the respondent no. 1 in the present accident. The petitioner got registered a false and frivolous case against the respondent in collusion with the police officials. The Suit No.75349/16 3/34 Pramila and ors vs. Deepak and ors.
respondent was however having a valid driving licence at the time of driving the vehicle. However, the vehicle of the respondent was not involved in the case.
5. After filing of the WS, the copy of the insurance policy of the vehicle was supplied by the respondent. Directions were given by my Ld. Predecessor on 06.05.2015 to implead the HDFC Ergo General Insurance Company as the insurer of the aforesaid vehicle. Thereafter, amended memo of parties was filed on 25.05.2015 mentioning the respondent no. 1 as the driver cum owner of the offending vehicle and the HDFC Ergo General Insurance company as the insurer of the said vehicle.
6. WS was filed on 16.02.2016 on behalf of the respondent no. 2/HDFC Ergo General Insurance Co. Ltd. stating that as per the FIR, it is clear that the accident has occurred due to the negligence of the other vehicle which was going ahead of the vehicle in which the victim was travelling. No accident took place involving alleged offending vehicle bearing no. DL-1LM- 8996 and the petitioners have falsely implicated the respondents in the present case. The petition was bad for non-joinder of the driver, owner and insurer of the tanker which was involved in the accident.
7. Thereafter on 09.05.2016 an application was filed on behalf of the petitioners for amendment in the petition on the ground that some new facts came to the knowledge of the petitioner that another vehicle was also involved in the alleged Suit No.75349/16 4/34 Pramila and ors vs. Deepak and ors.
accident which was traced by the IO which is a truck bearing no. HR-56-6275. Vide order passed on the same date, the application was allowed by Ld. Predecessor and the amended petition and memo of parties were taken on record thereby impleading driver and owner of the said truck bearing no. HR-56-6275 as respondent no.(s) 3 and 4.
8. Another application under Order 1 Rule 9 read with Order VI Rule 17 CPC was filed on behalf of the petitioners on the ground that the owner of the vehicle bearing no. HR-56-6275 has already sold the said vehicle to Mr. Pankaj Aggarwal and the vehicle was duly insured with HDFC Ergo General Insurance. The subsequent purchaser Mr. Pankaj Aggarwal also appeared before the Ld. Predecessor and made a statement that he has purchased the abovesaid vehicle which was duly insured with HDFC Ergo General Insurance Company.
9. Vide order dated 07.12.2016 my Ld. Predecessor proceeded ex-parte against the respondent no(s). 3 and 4, however on 19.07.2017 the ex-parte order was set aside qua the respondent no. 3 only on an application. Opportunity to file WS on behalf of the respondent no.(s) 4 to 6 was also closed by my Ld. Predecessor on 30.03.2017.
10. The respondent no.3/ Raj Kumar (driver of the vehicle no. HR-56-6275) also filed his separate written statement stating that the vehicle of the respondent no. 4 has been falsely implicated in the said accident as the same is not the offending Suit No.75349/16 5/34 Pramila and ors vs. Deepak and ors.
vehicle as per the version of complainant in 'DDR' dated 12.10.2014 in which it is specifically mentioned that the alleged accident took place due to rash and negligent driving of the driver of unknown vehicle and behind that vehicle, the vehicle of the respondent no. 1 was coming who applied brakes speedily negligently and at the same time respondent no. 3 had also applied brake of his vehicle. There is a delay of 6 days in lodging FIR. There are contradictory statements of the respondent no. 1 firstly in DDR Dated 12.10.2014 in which he stated that the alleged accident took place unfortunately and in that DDR the name of Anil Singhal deceased is nowhere mentioned and the name of one Dinesh @ Monu S/o Sh. Om Prakash is mentioned, further in FIR No. 823 dated 17.10.2014 he stated that the alleged accident took place due to rash and negligent driving of driver of some other first unknown vehicle truck whereas thirdly in his re-statement (Tatima) dated 15.11.2014 stated that the alleged accident took place due to rash and negligent driving of respondent by driving the vehicle of respondent no. 4, hence the alleged FIR has been lodged on contracted statement of respondent no. 1 in collusion with police of PS Civil Line, Karnal only just to grab huge compensation from the respondent as the respondent no. 1 is the real brother of deceased Anil Singhal. He further contended that the deceased was not travelling in the vehicle of respondent no. 1 and no injury was caused to anybody in that accident as there is no MLR of deceased Anil Singhal and there is no injury shown in DDR, FIR and statement (Tatima) on the body of the deceased Anil Singhal.
Suit No.75349/16 6/34Pramila and ors vs. Deepak and ors.
11. WS was filed by the respondent no. 6/HDFC Ergo General Insurance Company Ltd. stating that the respondent no. 3 driver of the alleged offending vehicle was not holding a valid and effective driving licence at the time of alleged accident. It is further contended that no accident took place involving alleged offending vehicle bearing no. HR-56-6275 and petitioners have falsely implicated the respondents in the present case. However, it is admitted that vehicle bearing no. HR-56-6275 is insured in the name of Sh. Bhim Singh from 13.07.2014 to 12.07.2015.
12. After the disposal of the miscellaneous applications and completion of the pleadings, issued were re-framed on 10.07.2017 by my Ld. Predecessor, as under:-
1. Whether the Anil Singhal succumbed to the injuries sustained in road accident on 11.10.2014 at 7.30 pm at Sector
-6, GT Road, Karnal near Gurudwara, Karnal due to rash and negligent driving of vehicle bearing no. DL-1LM-8996 being driven and owned by respondent Sh. Deepak Singhal and insured with respondent HDFC Ergo General Insurance Co. Ltd.?OPP
2. To what amount of compensation, the petitioner is entitled and from whom?
3. Relief.
13. Thereafter however, again on 20.09.2017 the Ld. Predecessor has passed the following order :-
Ld. counsel for petitioners submits that the claim of the petitioners is against two vehicles i.e. the vehicle bearing registration no. DL-1LM-8996 and HR-56-6275. Ld. counsel apprises that the petitioners were travelling in vehicle no. DL-1LM-8996. The vehicle no. HR-56-6275 hit the vehicle in Suit No.75349/16 7/34 Pramila and ors vs. Deepak and ors.
which the petitioners were travelling and the vehicle in which the petitioners were travelling hit another vehicle. Ld. counsel further submits that as drivers of both the vehicles i.e. vehicle no. DL-1LM-8996 and HR-56-6275 were negligent in causing injury to the petitioners, claim has been filed against both of them.
Inadvertently in the issue as framed on the last date, the vehicle has been wrongly mentioned as DL-1LM-8996 instead of HR-56-6275. The error is corrected now, the vehicle number in issue as framed on 10.07.2017 shall be read as HR-56-6275.
14. I have gone through the record. Initially the petitioners have filed their claim only against the respondent no.(s) 1 to 3 i.e., driver, owner and insurance of the vehicle no. DL-1LM-
8996, in which the deceased himself was travelling. However in the amended petition, the petitioners have sought claim from the respondent no. 1 and 3/ drivers of the two offending vehicle i.e. vehicle in which the deceased was travelling bearing no. DL- 1LM-8996 alongwith owner and insurer HDFC Ergo and the other vehicle bearing no. HR-56-6275 being driven by the respondent no. 3 and owned by respondent no. 4 and again insured with the respondent no. 6 /HDFC Ergo.
15. Though the petition was amended a number of times, no additional evidence was led by the petitioners or the respondents. In these facts and circumstances, my issue-wise findings are as under:-
Suit No.75349/16 8/34Pramila and ors vs. Deepak and ors.ISSUE NO. 1
16. In a claim petition, onus is on the claimant(s)/ petitioner(s) to prove that the deceased suffered fatal injuries in the vehicular accident caused by the wrongful act or negligence of the driver of the offending vehicle.
17. In order to establish their claim, the petitioners have examined three witnesses. Smt. Pramila (wife of the deceased) was examined as PW1. Dr. Kumar Manish, Sr. Consultant, Batra Hospital was examined as PW2. Sh. Dinesh (eye witness) was examined as PW3.
18. The respondent no. 2/HDFC Ergo General Insurance Co. Ltd. also examined two witnesses. Sh. Kuber Dutt Sharma, Manager (Legal) examined as R2W1. Sh. Ravinder Bhati, investigator of the insurance company was examined as R2W2.
19. PW-1 Smt. Pramila is the wife of the deceased Anil Singhal who deposed on the lines of her claim and relied upon the documents Ex.PW1/1 to Ex.PW1/9.
In her cross-examination by Ld. counsel for the respondent no. 3, she admitted that she is not an eye witness to the accident. She also admitted that the respondent no.1/Deepak Singhal is her nephew (son of her brother in law). She stated in her cross-examination that she was not aware that the FIR in the present case was got registered by Sh. Deepak Singhal/ respondent no. 1 after six days of the accident.
In her cross-examination by Ld. Counsel for the Suit No.75349/16 9/34 Pramila and ors vs. Deepak and ors.
respondent no. 2 & 6/HDFC, she stated that her husband was working as a helper on the vehicle owned by Deepak Singhal for last 1½ year prior to the accident. Her deceased husband used to get Rs.12000/- to Rs.13000/- as salary by way of cash from Deepak Singhal. She was informed telephonically about the accident by Deepak Singhal on 12th October 2014 around 7.00 a.m to 8.00 a.m. Deepak Singhal told her that deceased was taken to Civil Hospital, Karnal from there he was taken to Batra Hospital on 12.10.2014. She denied the suggestion that the accident took place due to sole negligence of the driver of the vehicle which was going ahead of vehicle bearing no. DL-1LM- 8996.
20. PW2 Dr. Kumar Manish, Sr. Consultant (General Surgery) Batra Hospital, New Delhi has produced the complete treatment record of the injured Anil. He stated that the patient came in emergency with alleged history of road traffic accident on 11.10.2014 at Karnal. Patient was received in Batra Hospital Emergency on 12.10.2014 with complaints of pain in abdomen. His ultrasound of abdomen was done, NCCT abdomen done, which revealed Pnemoperitonium, so the patient was operated urgently on 13.10.2014. There was gross hemoperitonium with gangrene of small bowel and large bowel. This was due to road traffic accident and blunt trauma abdomen. Patient was admitted from 12.10.2014 to get re-admitted till 16.10.2014 on paid basis and discharged on 16.10.2014. Patient expired on 17.10.2014. The patient expired due to consequences of injuries sustained in the road traffic accident.
Suit No.75349/16 10/34Pramila and ors vs. Deepak and ors.
In his cross-examination by Ld. counsel for the insurance company, he stated that he firstly treated the patient on 12.10.2014. The patient was examined firstly by CMO immediately after his admission in Emergency at Batra Hospital. Dr. Saurabh Gupta examined the patient in the Emergency. The patient was directly brought in emergency and as per the MLC his blood pressure were normal but heart rate was very high. So, patient was admitted in ICU. In ICU CT Scan of the abdomen was done, revealed perforation of bowel, so was immediately operated. The information regarding the history of injuries was provided by the patient himself. He denied the suggestion that the patient had not died due to the accidental injuries. He further denied that the death summary prepared by them is manipulated.
21. The petitioner have also examined one eye witness namely Dinesh S/o Sh. Omprakash as PW3 who was also travelling in the truck bearing no. DL-1LM-8996 alongwith the deceased Anil Singhal. He deposed that on 11.10.2014 at about 7.30 PM he, Deepak and Anil were coming from Ambala to Devli village, New Delhi by a truck bearing no. DL-1LM-8996. The truck was being driven by Deepak. When they reached Karnal near a Gurudwara GT Karnal Road then all of a sudden a truck which was ahead of their truck applied brakes. Deepak who was driving his truck bearing no. DL-1LM-8996 had also applied the brakes. In the meantime, one another truck bearing no. HR- 56-6275 which was coming behind their truck could not control his vehicle and hit their truck from behind. Due to the impact, their truck collied with the truck which was ahead of them. They Suit No.75349/16 11/34 Pramila and ors vs. Deepak and ors.
all sustained injuries. They were taken to some hospital in Karnal by Ambulance. They all remained hospitalized for about 2-3 hours and thereafter they were discharged from the hospital. Thereafter they visited Batra hospital, Delhi for further treatment. The injured Anil Succumbed to the injuries during the course of his treatment. The accident took place due to rash and negligent driving of vehicle bearing no. HR-56-6275.
In his cross-examination by Ms. Manu Kushwaha, Ld. counsel for the insurance company, he stated that Deepak who is the driver cum owner of the truck (Eicher make) is his real brother in which they were travelling. Deceased Anil was his cousin. They all travelled from Delhi to Ambala in the same truck on 10.10.2014. His brother Deepak is a transporter. The family of deceased Anil is living in the same vicinity approx around 500 meters. The Eicher truck in which they were travelling is having seating capacity of three persons including driver. At the time of accident, one Eicher truck was running ahead of their truck. He was sitting between the deceased and the driver in the truck. Their vehicle did not touch the truck which was going ahead of them prior to the hitting of the truck which was behind their truck. This witness and the deceased Anil lost their consciousness but his brother Deepak was conscious. They were taken to a government hospital at Karnal. Police did not make any enquiry from them regarding the present accident at Karnal. His evidence has been recorded in the criminal case at Karnal. He has not filed any claim case with respect to the injuries suffered by him in the accident. He denied the suggestion that the accident took place due to the sole negligence of the vehicle which was going ahead Suit No.75349/16 12/34 Pramila and ors vs. Deepak and ors.
of their vehicle.
22. R2W-1 Mr. Kuber Dutt Sharma, Manager (Legal), HDFC ERGO Gen. Ins. Co. Ltd. deposed that he has produced the attested copy of the insurance policy of the vehicle bearing No. DL-1LM-8996 issued in the name of Deepak valid from 21.10.2013 to 20.10.2014 as goods carrying commercial vehicle. The said policy along with terms and conditions was produced as Ex. R-2W-1/1 (colly.). As per the policy, the sitting capacity in the said vehicle is 2 persons inclusive of driver. As per the claim petition and the documents filed along with the same, there were three persons travelling in the insured vehicle bearing No. DL-1LM-8996 at the time of accident. The deceased was traveling as an unauthorized person in the vehicle bearing No. DL-1LM-8996. The owner has committed the intentional breach and violation of the sitting capacity in the vehicle bearing No. DL-1LM-8996, therefore, the Insurance Company is not liable to indemnify the insured i.e. Deepak in the present case. Further, the close scrutiny of the present claim petition, documents and the criminal case proceedings, reveals that the negligence is attributed to the driver of the vehicle which was going ahead of vehicle bearing No. DL-1LM-8996 at the time of accident in the FIR. Further, the negligence is attributable to the driver of the vehicle bearing No. HR-56-6275 namely Raj Kumar which was coming behind the vehicle bearing No. DL-1LM-8996 in the charge-sheet, the said criminal case was pending in the Chief Judicial Magistrate Court at Karnal, Haryana and was decided on 01.10.2018. The driver Raj Kumar has been acquitted Suit No.75349/16 13/34 Pramila and ors vs. Deepak and ors.
in the case titled State vs. Raj Kumar bearing CNR No. HRKR030005022016. Therefore, this is a clear case of hit and run and the Insurance Company is not liable to compensate the victims in the present case.
In his cross-examination by Sh. Ganesh Tripathi, Ld. counsel for the petitioners, he stated he is not an eye witness to the accident. The company had appointed an investigator in the present case. He stated that they have not filed any report of investigator on record. The vehicle bearing no. HR-56-6275 is also insured with their company.
23. R2W2 Sh. Ravinder Bhati is the investigator of the insurance company. He had investigated the criminal case with respect to the present claim petition. He has placed on record investigation report dated 26.10.2018 alongwith criminal case status report and judgment dated 01.10.2018 pronounced by the court of CJM, Karnal, Haryana. The investigators report is Ex.R2W2/1, the case status of FIR no. 823/14 PS Civil Lines is Ex.R2W2/2 (colly) and judgment in the case is Ex.R2W2/3 (colly).
In his cross-examination by Sh. Sanjeev Srivastava, Ld. counsel for the respondent no. 1 he stated that he has been provided the documents of the criminal proceedings by the insurance company for verification.
In his cross-examination by Ms. Manju, Ld. counsel for the petitioners, he stated that he obtained the documents pertaining to the acquittal of the accused online.
Suit No.75349/16 14/34Pramila and ors vs. Deepak and ors.
24. Ld. Counsel for the petitioner has argued forcefully that from the evidence of PWs coupled with the criminal record placed, the petitioner has proved the fact that it was the respondent no(s). 1 and 3 who had caused the fatal injuries to the deceased by their rash and negligent driving.
25. On the other hand, Ld. Counsel for the insurance company/ R-2 has argued that as per the FIR, the accident has occurred due to the negligence of other vehicle which was going ahead of the vehicle in which the deceased was travelling. It is further argued that as per the policy the seating capacity of the insured vehicle was 2 and only two persons could travel in the vehicle at any point of time, however there were three persons travelling in the vehicle in which the deceased was travelling. So the insurance company is not liable to pay any compensation.
26. It is a settled legal position that while deciding a petition u/s 166 of the M V Act, the Claims Tribunal has to decide negligence on the touchstone of preponderance of probabilities. Reference in this regard is made to the observations of the Hon'ble Supreme Court of India in Kaushnumma Begum and Others v/s New India Assurance Company Limited, 2001 ACJ 421 SC, wherein it was held that the issue of wrongful act or omission on the part of the driver of motor vehicle involved in the accident is of secondary importance and mere use or involvement of motor vehicle in causing bodily injuries or death to a human being or damage to property would make the petition maintainable u/s 166 & 140 of the M V Act.
Suit No.75349/16 15/34Pramila and ors vs. Deepak and ors.
27. Certified copies of criminal proceedings filed alongwith it are admissible in evidence and deemed to be correct under Rule 7 of the Motor Accident Claims Tribunal Rules, 2008 until proved to be contrary.
28. In this regard observations made by the Hon'ble Supreme Court in New India Assurance Company Ltd. vs. Pushpa Rana and Ors. reported in 2007 SCC online DEL 1700 has to be considered wherein it was held that :-
"the wife of the deceased had produced (1) certified copy of criminal record of criminal case in FIR No. 955/2004 pertaining to involvement of the offending vehicle; (2) Criminal record showing completion of investigation of police and issue of charage-sheet under Section 279/304-A IPC against the driver; (3) certified copy of FIR wherein criminal case against the drive was lodged; and (4 ) recover memo and mechanical inspection report of the offending vehicle and vehicle of the deceased. These documents are sufficient proofs to reach the conclusion that the driver was negligent."
29. In this regard, reliance can also be placed upon the observations made by the Hon'ble Supreme Court in Oriental Insurance Co. Ltd. Vs. Meena Variyal; 2007 (5) Scale 269 wherein it was observed that the petitioner wife of the deceased having produced the (1) certified copy of the criminal record showing completion of investigation by the police filing of the chargesheet against the driver, (II) certified copy of FIR registered against the driver, (III) recovery memo and (IV) mechanical inspection report of the offending vehicle and the Suit No.75349/16 16/34 Pramila and ors vs. Deepak and ors.
vehicle of the deceased. It was held that these documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under Motor Vehicles Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. There is ample evidence on record to prove negligence on the part of the driver.
30. In the present case also, copies of criminal proceedings which have been filed and admitted by the parties. Police after investigation had filed charge-sheet against the respondent no. 3/ driver of the vehicle bearing no. HR-56-6275 which is also suggestive of negligence of respondent no. 3 in causing the accident.
31. Another objection raised on behalf of the respondent no. 2/insurance company who is insurer of vehicle no.DL-1LM- 8996 is that vehicle bearing no. DL-1LM-8996 being driven by the respondent no. 1 has flouted the terms and condition of the insurance policy as the seating capacity in the vehicle was 2 person inclusive of the driver whereas they were three persons travelling in the said vehicle at the time of accident. The insurance company has examined R2W1 Mr. Kuber Dutt Sharma, Manager (Legal), HDFC Ergo Gen. Ins. Co. Ltd. to support its contentions. It has been strongly contended on behalf of the insurance company that the owner of the vehicle DL-1LM- 8996 has committed intentional breach and violation of seating capacity and hence the insurance company is not liable to indemnify the insured.
Suit No.75349/16 17/34Pramila and ors vs. Deepak and ors.
32. However, on perusal of record, it is found that written submissions were filed on 19.12.2022 on behalf of the respondent no. 1/ driver of the vehicle bearing no. DL-1LM-8996 in which the deceased was sitting at the time of accident therein submitting that on the policy issued against the said vehicle bearing no. DL-1LM-8996 it is clearly mentioned that sitting capacity of the vehicle including the driver was 2 +1 i.e. 3 and hence there was no breach of policy.
33. In this claim, the petitioners have examined one eye witness Dinesh who was also travelling in the truck bearing no. DL-1LM-8996 which was being driven by respondent no. 1 Deepak. The deceased Anil Singhal was also travelling in the same vehicle with them. He has specifically deposed that the vehicle was being driven by respondent no. 1. when they reached near Gurudwara at GT Karnal Road, the truck which was moving ahead of them suddenly applied brakes. The respondent no. 1 also applied brakes in his vehicle. However in the meanwhile the driver of another truck bearing no. HR-56-6275 which was coming behind their vehicle could not control his vehicle and hit their truck from behind. Due to this impact the truck collided with the truck which was ahead of them. They all sustained injuries. In his detailed cross-examination by the Ms. Manu Kushwaha, appearing for the insurance company, nothing material has come in the favour of the insurance company. The witness in his cross-examination rather again submitted that their vehicle did not touch the truck going ahead of them prior to the Suit No.75349/16 18/34 Pramila and ors vs. Deepak and ors.
hitting of the truck which was behind them. He specifically denied the suggestion that the accident took place due to the sole negligence of the truck which was going ahead of them. He denied the suggestion that the driver of the vehicle which was behind them was falsely implicated in the present case.
34. This witness was also examined by the Ld. CJM, Karnal in the criminal case no. 18/2016 State vs. Rajkumar, CNR no. HRKR03-000502-2016, CIS No. 76/2016. Before the Ld. CJM, Karnal also, this witness deposed on the same lines submitting that on the date of accident a vehicle which was going ahead of their truck suddenly applied emergency brakes due to which they also applied brakes and the truck which was following their vehicle hit against their vehicle and all of them sustained injuries.
35. This witness was never cross-examined on behalf of the driver and owner of the vehicle bearing no. HR-56-6275 but only by the counsel for the insurance company. No evidence was led by driver and owner of the vehicle bearing no. HR-56-6275.
36. The respondent no. 1 Deepak Singhal was also examined as PW1 before the Ld. CJM, Karnal who also deposed on the similar lines submitting that the truck which was going ahead of them suddenly applied brakes, he also applied brakes and the another vehicle which was following their vehicle also applied brakes, but all the three vehicles collided against each other and they sustained injuries.
Suit No.75349/16 19/34Pramila and ors vs. Deepak and ors.
37. In the present case, it is pertinent to note that the respondent no(s). 1 and 3/ driver of both the vehicles were the material witness to throw light by testifying as to how and under what circumstances, the accident had taken place. However, they have preferred not to enter into the witness box during the course of the inquiry. Thus, an adverse inference is liable to be drawn against them to the effect that the accident in question occurred due to rash and negligent driving of offending vehicle. The evidence led by petitioners is unrebutted and un-controverted.
38. This tribunal holding an enquiry into an accident is certainly not bound by the order of acquittal passed by the Ld. CJM. Reliance can be placed in Bimla Devi vs. Himanchal RTC, (2009) 13 SCC 530 wherein it has held that the "Tribunal has to take a holistic view of the matter. Claimants have to merely establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt is not to be applied".
39. In Sunita vs. Rajasthan SRTC, (2020) 13 SCC 486, the Hon'ble Supreme Court of India has held that "in motor accident claim cases, once the foundational fact, namely, the actual occurrence of the accident, has been established, then the Tribunal's role would be to calculate the quantum of just compensation if the accident had taken place by reason of negligence of the driver of a motor vehicle and, while doing so, the Tribunal would not be strictly bound by the pleadings of the Suit No.75349/16 20/34 Pramila and ors vs. Deepak and ors.
parties. Notably, while deciding cases arising out of motor vehicle accidents, the standard of proof to be borne in mind must be of preponderance of probability and not the strict standard of proof beyond all reasonable doubt which is followed in criminal cases".
40. Further, in Anita Sharma vs. New India Assurance Co. Ltd. (2021) 1 SCC 171, the Supreme Court of India further held "that strict principles of evidence and standards of proof like in a criminal trial are inapplicable in MACT claim cases. The standard of proof in such like matters is one of preponderance of probabilities, rather than beyond reasonable doubt. One needs to be mindful that the approach and role of Courts while examining evidence in accident claim cases ought not to be to find fault with nonexamination of some best eye- witnesses, as may happen in a criminal trial; but, instead should be only to analyze the material placed on record by the parties to ascertain whether the claimant's version is more likely than not true".
41. To determine the negligence on the part of the driver of the offending vehicle, the Supreme Court of India in Mangla Ram vs. Oriental Insurance Co. Ltd. (2018) 5 SCC 656 held that the key of negligence on the part of the driver of the offending vehicle was required to be decided by the Tribunal on the touchstone of preponderance of probability and certainly not by standard of proof beyond reasonable doubt.
Suit No.75349/16 21/34Pramila and ors vs. Deepak and ors.
42. Accident in the matter is not disputed. Involvement of both the vehicles is also undisputed. Further, it has come up in the testimony of eye witness Dinesh who was examined before this tribunal and also before the Ld. CJM, Karnal that the default was on the part of the vehicle coming behind them bearing no. HR-56-6275 driven by the respondent no. 3 and insured with the respondent no. 6. The respondent no. 1 herein and the eye witness both have categorically stated that the collision occurred after their vehicle was hit from behind by the truck bearing no. HR-56-6275. Nothing material has come up in their cross- examination. No evidence has been led by the respondent no.(s) 3 to 6 to controvert the contentions raised by the petitioners, respondent no. 1 and the eye witness. For the purposes of this enquiry, hence I am satisfied that the accident has occurred due to the negligence on the part of the respondent no. 3, driver of the vehicle bearing no. HR-56-6275 coming from behind the vehicle of the deceased. Admittedly, it has come up that both the vehicles involved were insured with the same insurance company namely HDFC Ergo General Insurance Company which hence is contractually liable to compensate the petitioners/claimants for the awarded amount, if any.
43. The plea raised by the insurance company that it was a case of hit and run does not survive in view of the findings on the issue no. 1 and also the filing of the charge-sheet against the vehicle no. HR-56-6275 by the IO after investigation. Even after investigation chargesheet was filed by the IO against the vehicle no.HR-56-6275 which was never challenged and uncontroved by Suit No.75349/16 22/34 Pramila and ors vs. Deepak and ors.
the insurance company.
44 Further more, as far as the plea regarding seating capacity raised by Ld. counsel for the insurance company is concerned, as per the above findings and the investigation conducted by the IO, it has come up that the offending vehicle in the case was the vehicle bearing no. HR-56-6275 against which no such plea of any breach of policy has been raised by the insurance company.
45. On the basis of abovesaid evidence coming on record and the observations and discussion, it is proved that the accident in the matter took place due to rash and negligent driving of vehicle bearing no. HR-56-6275 due to which Anil Singhal received fatal injuries. Accordingly, issue no. 1 is decided in favour of the petitioners.
ISSUE NO. 2.
46. Now, the court has to assess as to how much compensation be awarded to the claimant and by whom? First of all the court has to decide as to whom the liability to pay the compensation is fastened.
47. It is admitted position that vehicle HR-56-6275 was duly insured with the insurance company i.e. HDFC Ergo General Insurance Company Ltd. Therefore, insurance company HDFC Ergo General Insurance Company becomes contractually liable to compensate the petitioners/claimants Suit No.75349/16 23/34 Pramila and ors vs. Deepak and ors.
for the awarded amount.
48. Let me assess the compensation which the claimants are entitled for under different heads.
COMPENSATION FOR THE DEATH CASE OF ANIL SINGHAL
49. As observed above, deceased Anil Singhal died because of the injuries suffered by him in the accident which occurred due to the negligence of respondent no.3. Hence, the LRs of deceased are entitled for compensation for the financial loss suffered by them on account of the death of Anil Singhal. The petitioners, being the legal representatives of the deceased, shall be entitled for the following reliefs as per the law discussed in National Insurance Co. Ltd. vs. Pranay Sethi & Ors. decided in Special Leave Petition Civil no. 25590 of 2014 and Megma General Insurance Company Ltd. Vs Nanu Ram @ Chuhru Ram and Ors. (2018) 18 SCC 130 wherein the extent of the claim under different heads was discussed in detail and it was held that following amounts shall be considered as just and reasonable award under the heads i.e., Loss of Consortium, Funeral expenses and loss of Estate. Funeral expenses and loss of estate has been limited to the extent of Rs. 15,000/- each subject to enhancement of Rs. 10% of every three year since the judgment in the above said judgment (Supra).
50. So far so, the loss of consortium is concerned, it has been decided by the Apex Court on 07.09.2020 in Civil Appeal Suit No.75349/16 24/34 Pramila and ors vs. Deepak and ors.
No. 3093/2020 arising out of SLP (C) No. 23478/2019 in case titled as The New India Assurance Company Limited Vs Smt. Somwati and Ors. that the claimants are entitled for Loss of Consortium whether it is wife or son or daughter. Apex court had also referred to The Black's Law dictionary in this respect "word consortium" has been defined in 10th Edition also simultaneously notices the filial consortium, parental consortium and spousal consortium." Filial consortium a child's society, affection and companionship given to a parent. Parental consortium: a parents' society, affection and companionship given to a child. Spousal consortium: A spouses' society, affection and companionship given to the other spouse. Accordingly, in the present case, petitioners are entitled to consortium. Therefore, under these heads, compensation is to be awarded as follows:-
S. No. Head Amount (in Rs.)
1 Loss of consortium 2,20,000/-
[44,000 x 5]
2 Funeral Expenses 16,500/-
3 Loss of Estate 16,500/-
51. As far as the head of Loss of Dependency is concerned, same is to be calculated as per the multiplier method which has been adopted as a thumb rule in Sarla Verma vs. DTC [2009 (6) Scale 129] and various other judgments, unless there are exceptional circumstances which make it necessary to depart from the said rule. Further, in the judgment titled as National Insurance Co. Ltd. vs. Pranay Sethi & Ors. (Supra) it has been concluded by the Hon'ble Supreme Court that in determination of the multiplicand the deduction for personal and Suit No.75349/16 25/34 Pramila and ors vs. Deepak and ors.
living expenses the Tribunals shall be guided by the law as laid in Sarla Verma's case. Admittedly, the deceased Anil Singhal was married, who left behind his legal heirs i.e. wife, three sons and mother. As per the driving licence, the deceased was 32 years of age at the time of accident therefore, the applicable multiplier would be '16'.
52. As per the PW Pramila, her deceased husband Anil Singhal was working as a helper with the respondent no. 1 and earning more than Rs.12000/- per month. Admittedly, the petitioners have not placed on record any document to prove his salary. Neither she has produced any witness to prove his salary/ earnings. Hence, in the absence of any proof of income the minimum wages of an 'unskilled worker' in Delhi is taken into consideration which was Rs.8,632/- p.m at the time of accident i.e. 11.10.2014 for computing income.
53. Hon'ble Supreme Court in National Insurance Ltd. vs. Pranay Sethi & Ors. (Supra) has held that future prospects have to be considered for calculating the loss of future dependency. The deceased was 32 years of age therefore, an addition of 40% as future prospects has to be made. After adding future prospects, the income of the deceased comes to Rs.12,084/- (Rs.8,632/- + 8,632/- x 40 / 100). As the deceased was admittedly married and leaving behind his wife, three sons and mother as legal heir, therefore, 1/4th is to be deducted towards personal and living expenses. After deduction, the income of the deceased comes to Rs.9,063/-. Thus, the loss of Suit No.75349/16 26/34 Pramila and ors vs. Deepak and ors.
dependency comes to Rs.17,40,096/- (Rs.9063/- x 12 x 16). I therefore, award Rs.17,40,096/- to the petitioners towards loss of dependency.
MEDICAL EXPENSES :
54. The petitioners have filed medical bills of the deceased Anil to the tune of Rs.1,14,961/-. Therefore, the petitioners are entitled for Rs.1,14,961/- towards medical expenses.
55. The total compensation in favour of the petitioners comes as under :-
LOSS OF DEPENDENCY =Rs.17,40,096/-
LOSS OF CONSORTIUM
[44,000x5(claimants)] = Rs.2,20,000/-
FUNERAL EXPENSES =Rs. 16,500/-
LOSS OF ESTATE =Rs. 16,500/-
MEDICAL BILLS =Rs.1,14,961/-
==========
total =Rs.21,08,057/-
==========
R E LI EF
56. In view of my findings on the issues, I award a sum of Rs.21,08,057/- (Rupees Twenty One Lakhs Eight Thousand fifty Seven only) to LRs of the deceased Anil Singhal as compensation along-with interest @ 9% per annum from the date of filing the petition till its realization.
-:RELEASE OF AWARD AMOUNT:-
(In the share of Petitioner no. 1 Pramila i.e. wife of the deceased) Suit No.75349/16 27/34 Pramila and ors vs. Deepak and ors.
57. A sum of Rs.12,08,057/- (Rupees Twelve Lakhs Eight Thousand Fifty Seven Only) along-with interest @ 9% per annum is awarded to the petitioner no.1 being wife of the deceased.
Out of this amount, an amount of Rs.8,00,000/- is directed to be kept in the form of fixed deposit in the following phased manner :
• Rs.1,00,000/- for a period of 01 year. • Rs.1,00,000/- for a period of 02 years. • Rs.1,00,000/- for a period of 03 years. • Rs.1,00,000/- for a period of 04 years. • Rs.1,00,000/- for a period of 05 years. • Rs.1,00,000/- for a period of 06 years. • Rs.1,00,000/- for a period of 07 years. • Rs.1,00,000/- for a period of 08 years.
The remaining amount with interest be released to her.
(In the share of Petitioner no. 2 Shivam i.e. major son of the deceased)
58. A sum of Rs.2,00,000/- (Rupees Two Lakhs only) alongwith the proportionate interest is awarded to the petitioner no. 2 being son of the deceased. Entire amount be released to him.
(In the share of Petitioner no(s). 3 and 4 Anshu Singhal and Saksham (children of the deceased)
59. A sum of Rs.2,00,000/- each (Rupees Two Lakhs only) alongwith the proportionate interest are awarded to the petitioner no(s).3 and 4. These amounts are directed to be kept in the form of fixed deposit till they attain the age of majority.
Suit No.75349/16 28/34Pramila and ors vs. Deepak and ors.
(In the share of Petitioner no. 5 Indira i.e. mother of the deceased )
60. A sum of Rs.3,00,000/- (Rupees three Lakhs only) alongwith the proportionate interest is awarded to the petitioner no. 5 being mother of the deceased. Entire amount be released to her.
Deposition of awarded amount with STATE BANK OF INDIA, Saket Court Branch, New Delhi.
61. In consonance to the idea by which part of the awarded amount is ordered to be kept in fixed deposit / savings account by Hon'ble high Court, respondent no. 6 / HDFC Ergo General Insurance Company Ltd. are directed to deposit the awarded amount in favour of the petitioners with State Bank of India, Saket Courts Complex Branch, against account of petitioner within a period of 30 days from today, failing which respondent no. 6 / HDFC Ergo General Insurance Company Ltd. shall be liable to pay future interest @ 12% per annum till realization (for the delayed period).
62. The respondent no. 6 / HDFC Ergo General Insurance Company Ltd. are directed to credit the amount directly to the MACT account of State Bank of India, District Court, Saket branch. Details of the bank i.e. IFSC code etc. have been provided to the Ld. counsel for the respondent no.6.
Suit No.75349/16 29/34Pramila and ors vs. Deepak and ors.
63. The award amount shall be deposited with State Bank of India, Saket Court Branch, New Delhi by way of RTGS/NEFT/IMPS in account of MACT SOUTH SAKET COURT A/c 42706751873 IFS Code SBIN0014244 and MICR code 110002342 under intimation to the Nazir alongwith calculation of interest and to the Counsel for the petitioners.
64. MODE OF DISBURSEMENT OF THE AWARD AMOUNT TO THE CLAIMANTS AS PER PROVISIONS OF THE 'MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE'(MCTAP)
65. Upon the aforesaid amount being deposited, the State Bank of India, Saket Court Complex, New Delhi, is directed to keep the awarded amount in the "fixed deposit / saving account'' in the following manner :-
1) The interest on the fixed deposit be paid to the petitioner/claimant by Automatic Credit of interest of their saving bank account with State Bank of India, Saket Court Branch, New Delhi.
2) Withdrawal from the aforesaid account shall be permitted to petitioner/claimant after due verification and the Bank shall issue photo identity Card to claimants / petitioners to facilitate identity.
3) No cheque book be issued to petitioner/claimant without the permission of this Court.
4) The original fixed deposit receipts shall be retained by the Bank in safe custody. However, the original Pass Book shall be given to the petitioner/claimant alongwith the photocopy of the FDR's .
5) The original fixed deposit receipts shall be handed over to petitioner/claimant at the end of the fixed deposit period.
6) No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the permission of this Suit No.75349/16 30/34 Pramila and ors vs. Deepak and ors.
Court.
7) Half yearly statement of account be filed by the Bank in this Court.
8) On the request of petitioner/claimant, the Bank shall transfer the Savings Account to any other branch of State Bank of India, according to their convenience.
9) Petitioner/claimant shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit Account to Branch Manager, State Bank of India, Saket Courts Complex Branch, New Delhi.
10)The bank is also directed to get the nomination form filled by the claimant at the time of preparation of FDRs.
11)The bank is also directed to keep the money received from the respondents in an FDR in the name of the bank till the FDRs are prepared in the name of the claimant, so that the benefit of better interest may be given to the claimant for the said period.
12)The Manager, State Bank of India, District Court Saket branch is directed not to release any amount to the petitioner from this branch, unless ordered by the Tribunal in terms of the order of the Hon'ble High Court in FAO No. 842/2003 and CM Applications No. 32859/2017, 41125-41127/2017 in Rajesh Tyagi & Ors.
vs. Jaibir Singh & Ors. dated 09.03.2018. It is made clear that the amount including the maturity amount of the FDRs shall be released to the petitioner through RTGS/NEFT directly in the personal bank account of the petitioner of the bank nearest to his place of residence, the details of which have been given by the petitioner to the Tribunal and same details shall be given by them to the Manager SBI, District Court Saket branch.
DIRECTIONS FOR THE RESPONDENT NO. 6 / HDFC Ergo General Insurance Company Ltd.
1. The Respondent no. 6 / HDFC Ergo General Insurance Company Ltd. is directed to file the compliance report of its having deposited the awarded amount with State Bank Suit No.75349/16 31/34 Pramila and ors vs. Deepak and ors.
of India, Saket Court Branch in this Tribunal within a period of 30 days from today.
2. The Respondent no. 6 / HDFC Ergo General Insurance Company Ltd. is directed to furnish a copy of this award alongwith the cheque of the awarded amount to the Manager of State Bank of India, Saket Court Branch, so as to facilitate the Manager of State Bank of India, Saket Court Branch to have the identification of the claimant/petitioner in whose favour the award has been passed.
3. The Respondent no. 6 / HDFC Ergo General Insurance Company Ltd. shall intimate the claimant/petitioner about its having deposited the cheque in favor of the claimant in terms of the award, at the address of the claimant mentioned at the title of the award, so as to facilitate him to withdraw the same.
4. Copy of this award / judgment be given to the claimant who is directed to furnish the same to the Manager of State Bank of India, Saket Court Branch for necessary compliance after his having received the notice of the deposit of awarded amount by the respondent no. 6 / HDFC Ergo General Insurance Company Ltd.
5. The case is now fixed for compliance by the respondent no. 6 / HDFC Ergo General Insurance Company Ltd. on 29.04.2024.
Suit No.75349/16 32/34Pramila and ors vs. Deepak and ors.
FORM IV-A SUMMARY OF COMPUTATION OF AWARD AMOUNT IN DEATH CASES TO BE INCORPORATED IN THE AWARD
1) Date of accident : 11.10.2014
2) Name of the deceased : Anil Singhal
3) Age of the deceased : 32 years
4) Occupation of the deceased : Private
5) Income of the deceased : Rs.8,632/- p.m. (minimum wages of Delhi)
6) Name, age and relationship of legal representatives of deceased :
S. Name Age Relation
No.
1 Pramila 38 years Wife
2 Shiwam Singhal 20 years son
3 Anshu Singhal 17 years son
4 Saksham 11 years son
5 Indira 60 years mother
Computation of Compensation
S. Heads Awarded by the Claims
No. Tribunal
6 Income of the deceased (A) Rs.8632/-
7 Add - Future Prospects (B) Rs.3452/-
8 Less - Personal expenses of the Rs.3,021/-
deceased (C)
9 Monthly loss of dependency Rs.9,063/-
[(A+B)-C = D]
10 Annual loss of dependency (Dx12) Rs.1,08,756/-
11 Multiplier (E) 16
12 Total loss of dependency Rs.17,40,096/-
(Dx12xE=F)
13 Medical Expenses (G) Rs.1,14,961/-
14 Compensation for loss of Rs.2,20,000/-
Suit No.75349/16 33/34
Pramila and ors vs. Deepak and ors.
consortium (H)
15 Loss of Love and Affection (I) -
16 Compensation for loss of estate (J) Rs.16500/-
17 Compensation towards funeral Rs.16500/-
expenses (K)
18 Amount received by the petitioners --
through group insurance (L)
19 TOTAL COMPENSATION Rs.21,08,057/-
(F+G+H+I+J+K -L= M )
20 RATE OF INTEREST AWARDED 9% (from 04.11.2016 onwards
to 29.02.2024)
21 Interest amount upto the date of Rs.14,08,709/-
award (M)
22 Total amount including interest Rs.35,16,766/-
(L+M)
23 Award amount released Rs.23,16,766/-
24 Award amount kept in FDRs Rs.12,00,000/-
25 Mode of disbursement of the Some amount is released to the
award amount to the claimant (s). petitioners and some amount are directed to be kept in the form of fixed deposit.
26 Next date for compliance of the 29.04.2024 award Pronounced in the open court on 29th February, 2024 (SUDESH KUMAR-II) Presiding Officer : MACT (S) Saket Courts, New Delhi Suit No.75349/16 34/34