Delhi District Court
Sh.Hitesh Kumar vs Sh. Suresh Kumar on 4 March, 2021
MACP No. 5547/16; FIR No. 606/11 PS.Narela
IN THE COURT OF SHRI DEVENDER KUMAR JANGALA, PRESIDING
OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNAL,
ROHINI COURTS, DELHI
MAC Petition No. 5547/16
Sh.Hitesh Kumar
S/o Sh. Azad Singh,
R/o Village Nangal Thakran,
Bawana, Delhi.
..........Petitioner
VERSUS
1. Sh. Suresh Kumar,
S/o Late Sh. Singh Ram,
R/o 196B, Bus Stand,
Village Bawana, Delhi.
(Drivercumowner of Zen car no.DL2CZ7346)
2. HDFC Ergo General Insurance Company Ltd.
C302, 3rd Floor, Ansal Plaza,
Hudco Place, Andrews Ganj,
Delhi.
(Insurer of Zen car no.DL2CZ7346 )
3. Sh. Dharamveer Singh
S/o Sh. Veer Narayan Singh
R/o E1/237, Shiv Ram Park,
Nangloi, Delhi
Also At: Kheriya Bueg,
Post Office Ranjit Garhi, Khair,
District Aligarh, UP. (Driver of Santro car no.UP14Y6039)
4. Sh. Veerpal Singh
S/o Sh. Lila Singh
R/o Pasavadha Bahadur Gargh,
Kapil Vs. Suresh Kumar & Anr. Page 1 of 23
MACP No. 5547/16; FIR No. 606/11 PS.Narela
Garh Mukteshwar, Ghaziabad, UP
(Owner of Santro car no.UP14Y6039)
5. Reliance General Insurance Company Ltd.
Plot no.60, Okhla Industrial Estate
Phase3, Opposite SBI Bank,
New Delhi110020
(Insurer of Santro car no.UP14Y6039)
.........Respondents
Date of Institution : 02.07.2015
Date of Arguments : 18.02.2021
Date of Award : 04.03.2021
APPEARANCES:
Sh. Anoop Pandey, Adv for petitioner.
Sh. Prakash Kumar, Adv for drivercumowner/R1. Sh. S.K. Tyagi, Adv for insurance company.
Sh. Sanjay Garg, Ld.counsel for respondent no.3 and 4.
Sh. Sujit Jaiswal, Ld.counsel for respondent no.5/insurance company.
Petition under Section 166 and 140 of M.V. Act, 1988 for grant of compensation AWARD
1. Present claim petition was filed by the petitioner/injured on 02.07.2015 thereby seeking compensation with regard to accidental injuries suffered by him on 04.12.2011 at about 11:30 PM near Jain Shukl Bodhi Mandir Stand Road and CRPF Camp Stand Road, Near Pole No. HT521 Kapil Vs. Suresh Kumar & Anr. Page 2 of 23 MACP No. 5547/16; FIR No. 606/11 PS.Narela 91/27, Narela Bawana Road, Delhi caused by the vehicle i.e. Zen Car bearing registration no. DL2CZ7346 and Santro Car bearing no. UP14Y 6039 (alleged offending vehicles) being driven in a rash and negligent manner by respondent no.1 and respondent no.3. FIR No. 606/11, Under Section 279/337/338 IPC with respect to the said accident was registered at PS. Narela.
2. Brief facts of the case are that on 04.12.2011, the petitioner alongwith his friend Sh. Brijesh and driver Suresh was travelling in a Zen Car bearing registration no. DL2CZ7346 which was being driven by Sh. Suresh/respondent no.1 in a rash and negligent manner. At about 11:30 pm, when they reached near Jain Shukl Bodhi Mandir Stand Road and CRPF Camp Stand Road, Near Pole No. HT52191/27, Narela Bawana Road, Delhi, suddenly the driver Sh. Suresh lost control over the Zen car and hit the Santro Car bearing no. UP14Y6039 with a great force. As a result thereof, the petitioner sustained grievous injuries and the other inmates also received injuries in the said accident. The petitioner was taken to M.V. hospital where he was medically examined and thereafter, he was referred to Dr. Mukesh Orthopaedic and Trauma Centre Hospital. Accident was reported to the police and case vide FIR No. 606/11, under Section 279/337/338 IPC was registered at PS. Narela. At the time of accident, the alleged Zen Car bearing registration no. DL2CZ7346 was owned by respondent no. 1 himself and it was insured with respondent no. 2 HDFC Ergo General Insurance Company Ltd. The alleged Santro Car bearing no.
Kapil Vs. Suresh Kumar & Anr. Page 3 of 23MACP No. 5547/16; FIR No. 606/11 PS.Narela UP14Y6039 was being driven by respondent no.3 Sh. Dharamveer Singh, owned by respondent no.4 Sh. Veerpal Singh and insured with respondent no.5 Reliance General Insurance Company Ltd.
3. Respondent no.1 driver cum owner of the Zen car bearing registration no. DL2CZ7346 has not filed reply despite opportunities and imposition of cost and lastly his defence was struck off vide order dated 16.11.2016.
4. In its WS, the respondent no. 2/insurance company has raised statutory defence as provided in Section 149(2) M.V Act. It has claimed that present DAR is bad for misjoinder and nonjoinder of necessary parties as owner and insurer of vehicle bearing no. UP14Y6039 are not called for, since this vehicle was also involved and used in alleged accident and is necessary party being joint tort feasor. It is further claimed that the alleged offending vehicle was being driven by Suresh/R1 in inebriation condition at the time of accident and he was also not holding any driving licence. Therefore, IO of criminal case has filed chargesheet u/s. 279/337/338/420/468/471 IPC, Section 3/181 & 5/180 M.V. Act. It is admitted by the insurance company that the vehicle no. DL2CZ7346 was insured with it vide policy no. 2319200064691200000 from 07.03.11 to 06.03.12. It is further stated that the alleged Zen car bearing No. DL2CZ 7346 was insured as private car liability only policy and the risk of the occupants was not covered under the liability only policy and as such the Kapil Vs. Suresh Kumar & Anr. Page 4 of 23 MACP No. 5547/16; FIR No. 606/11 PS.Narela insurance company is not liable to pay compensation to the injured who was travelling in the offending vehicle bearing no. DL2CZ7346.
5. Respondent no.3 and 4 the driver and owner of the Santro car bearing no. UP14Y6039 filed joint written statement stating therein that the accident solely occurred due to rash, negligent and zig zag driving of respondent no.1 i.e. the driver of car in which the petitioner was travelling. That the respondent no.1 was heavily drunk while driving the zen car and he was also not having valid driving licence. That the FIR was lodged against respondent no.1 and he has also compounded the criminal case arising out of said FIR The averments on merits are denied. It is denied that respondents no.3 and 4 are liable to pay compensation.
6. Respondent no.5 the insurance company of Santro Car bearing no. UP14Y6039 filed reply stating that the present claim petition is not maintainable against the respondent as there was no negligence on the part of driver of vehicle bearing no. UP14Y6039 and the accident has taken place solely due to negligence of respondent no.1. That the respondent no.1 has pleaded guilty in the concerned court. That the amount claimed is highly exorbitant and without any basis. The averments on merits are denied. It is however admitted that the vehicle no. UP14Y6039 as insured with it at the relevant time of accident.
7. From pleadings of the parties, the following issues were framed Kapil Vs. Suresh Kumar & Anr. Page 5 of 23 MACP No. 5547/16; FIR No. 606/11 PS.Narela by my Ld. Predecessor vide order dated 13.02.2017:
1. Whether the injured Sh. Hitesh suffered injuries in head on collision on 04.12.2011 at 11:30 pm at Jain Shukl Body Mandir, CRPF Camp Stand Road, near Pole No. HTS2191/27, Narela Bawana Road, Delhi within the jurisdiction of PS. Narela, due to rashness and negligence on the part of Sh. Suresh/R1 who was driving Zen Car bearing registration no. DL2CZ7346, owned by him and insured with HDFC Ergo General Insurance Co. Ltd and or rashness and negligence on the part of R 3/Sh. Dharamvir who was driving the Santro car bearing no.UP14Y6039, owned by Sh. Virpal Singh and insured with Reliance General Insurance Company Ltd./R5? OPP
2. Whether the injured is entitled to any compensation, if so to what amount and from whom? OPP.
3. Relief.
8. In support of his claim, the petitioner has examined himself as PW1, injured Brijesh as PW2, injured Kapil(petitioner in other connected case as PW3). It be noted that examination in chief of PW2 injured Brijesh was recorded and thereafter he was not called for crossexamination. Hence, since PW2 injured Brijesh was not subjected to crossexamination, his testimony shall not be read in evidence. No other witness was examined and PE was closed on 27.08.2018 on the statement of Ld.counsel for petitioner. On the other hand respondent no.2 examined Sh. Deepender Singh as R2W1. Respondent no.3 Sh. Dharamveer Singh examined himself Kapil Vs. Suresh Kumar & Anr. Page 6 of 23 MACP No. 5547/16; FIR No. 606/11 PS.Narela as R3W1. No other witness was examined and RE was closed vide order dated 27.08.2018 on the statement of Ld.counsel for respondents.
9. I have heard the arguments addressed by Sh. Anoop Pandey, Ld.counsel for petitioner, Sh. Prakash Kumar, Ld.counsel for respondent no.1, Sh. S. K. Tyagi, Ld.counsel for respondent no.2, Sh. Sanjay Garg, Ld.counsel for respondents no.3 and 4 and Sh. Sujit Jaiswal, Ld.counsel for respondent no.5 and also gone through the record. My findings on the issues are as under: ISSUE NO. 1.
10. For the purpose of this issue, the testimony of PW1 Sh. Hitesh (injured himself) is relevant. In his evidence by way of affidavit Ex. PW1/A the petitioner has deposed that on 04.12.2011, he alongwith his friend Brijesh and driver Sh. Suresh was travelling in a Zen Car bearing registration no.DL2CZ7346 which was being driven in a rash and negligent manner by respondent no.1 and he warned him many times, not to drive the said car in such a manner but he did not pay any heed to the warning and continued driving the zen car rashly and negligently. At about 11:30 pm, when they reached near Jain Shukl Bodhi Mandir Stand Road and CRPF Camp Stand Road, Near Pole No. HT52191/27, Narela Bawana Road, Delhi, the driver Sh. Suresh lost control over the Zen Car bearing registration no. DL2CZ7346 and hit against a Santro car bearing no. UP14Y6039 with great force. As a result thereof, he sustained Kapil Vs. Suresh Kumar & Anr. Page 7 of 23 MACP No. 5547/16; FIR No. 606/11 PS.Narela grievous injuries and the other inmates also received injuries in the said accident. He was taken to M.V. hospital where he was medically examined and thereafter, he was taken to Dr. Mukesh Orthpaedic and Trauma Centre. Case vide FIR No. 606/11, under Section 279/337/338 IPC was registered at PS. Narela. In the crossexamination on behalf of respondent no.2 he stated that the respondent no.1 was driving the car at a high speed and he asked him not to drive at a high speed. He further deposed that the accident took place due to negligence on the part of drivers of both cars. However, in the crossexamination on behalf of respondent no.3 and 4 he deposed that the driver of the zen car had pleaded guilty in the criminal case pertaining to the present accident and he was convicted for the offences under Section 279 IPC. He admitted that the respondent no.1 was driving the zen car at a high speed in a zigzag manner.
11. It be noted that though the petitioner deposed that the accident took place due to rash and negligent driving of drivers of both the cars but it is not disputed that the FIR in the present accident case was registered against respondent no.1 only. After investigation, the investigating officer has also filed the charge sheet against respondent no.1. It is also an admitted case that respondent no.1 has pleaded guilty for the offences punishable under Section 279 IPC and also compounded the offences under Section 338 IPC with the injured, which is evident from the copy of order dated 13.12.2013, passed by Ld.Metropolitan Magistrate01, Rohini, Delhi which shows that the respondent no.1 had pleaded guilty for the Kapil Vs. Suresh Kumar & Anr. Page 8 of 23 MACP No. 5547/16; FIR No. 606/11 PS.Narela offences punishable under Section 279 IPC and has compounded the offence under Section 338 IPC with the injured. The plea of guilt of the accused/respondent no.1 itself proved the negligence on the part of respondent no.1. there is nothing on record to show any negligence on the part of respondent no.3 as the site plan clearly shows that it was vehicle of respondent no.1 which has changed its lane and there both the vehicles were collided from front side.
12. The respondent no.1/driver of aforesaid zen car, was the other material witness to throw light by testifying as to how and under what circumstances, the accident had taken place. However, he has preferred even not to crossexamine the petitioner or to enter into the witness box during the course of inquiry. Thus, an adverse inference is liable to be drawn against him to the effect that the accident in question occurred due to rash and negligent driving of offending vehicle by him.
13. Apart from above, the copy of MLC of petitioner prepared at MV Hospital shows that he was taken to said hospital immediately after the accident with the alleged history of RTA and he was found to have sustained grievous injuries as mentioned therein. Again, there is no challenge to the said document from the side of respondents including insurance company.
14. In view of the aforesaid discussion and the evidence which has Kapil Vs. Suresh Kumar & Anr. Page 9 of 23 MACP No. 5547/16; FIR No. 606/11 PS.Narela come on record, it is held that the petitioner has been able to prove that he had sustained grievous injuries in road accident which took place on 04.12.2011 at about 11:30 PM near Jain Shukl Bodhi Mandir Stand Road and CRPF Camp Stand Road, Near Pole No. HT52191/27, Narela Bawana Road, Delhi due to rash and negligent driving of the Car bearing registration no. DL2CZ7346 by respondent no.1 Sh. Suresh Kumar. Thus, issue no. 1 is decided in favour of petitioner and against the respondents.
ISSUE NO.2
15. Section 168 of the Act enjoins the Claims Tribunal to hold an inquiry into the claim to make an award determining the amount of compensation which appears to it to be just and reasonable. It has to be borne in mind that the compensation is not expected to be a windfall or a bonanza nor it should be niggardly.
MEDICAL EXPENSES
16. PW1 Sh. Hitesh i.e. injured himself, has deposed in his evidence by way of affidavit(Ex. PW1/A) that after the accident, he was removed to Maharishi Valmiki Hospital, Pooth Khurd, Delhi where his MLC was prepared and thereafter he was taken to Dr. Mukesh Orthopaedic & Trauma Centre where he remained admitted from 05.12.2011 to 09.12.2011. He further deposed that thereafter he was taken to Fortis Hospital and remained hospitalized from 09.12.2011 to 21.12.2011. he further stated that he again remained admitted in Dr. Mukesh Orthopaedic Kapil Vs. Suresh Kumar & Anr. Page 10 of 23 MACP No. 5547/16; FIR No. 606/11 PS.Narela and Trauma Centre from 21.12.2011 to 11.01.2012. He further stated that he remained under treatment for a period of around one year and incurred Rs.9,00,000/ on his medical treatment. The ocular testimony of the petitioner with regard to his medical treatment and nature of injuries is duly supported with his medical treatment record Ex.PW1/1(colly) and medical bills Ex. PW1/2(colly). The medical treatment record of the petitioner shows that he has suffered fracture acetabulam with posterib dislocation hip with abdominal distansion.
17. It is relevant to note that the injured has filed on record the medical bills to the tune of Rs.9,00,000/ only. It is quite evident that the respondents have not disputed the authenticity and genuineness of the said medical bills during the course of inquiry. Respondents have also not led any evidence in rebuttal so as to create any doubt on the geuineness of said bills. Accordingly, a sum of Rs.9,00,000/ is awarded to the petitioner under this head.
LOSS OF INCOME
18. Injured has categorically deposed in his evidence by way of affidavit(Ex PW1/A) that at the time of accident he was 30 years of age and was working as property dealer and was earning a sum of Rs.20,000/ per month. He further deposed that due to the injuries sustained in the present accident, he has become jobless and can not walk without any escort/support.
Kapil Vs. Suresh Kumar & Anr. Page 11 of 23MACP No. 5547/16; FIR No. 606/11 PS.Narela
19. Though the petitioner has claimed that he was working as property dealer and was earning a sum of Rs.20,000/ per month but in the crossexamination he admitted that he has not filed any document to show that he was working as Property Dealer and was earning a sum of Rs.20,000/. The petitioner has also not proved his educational qualifications by cogent evidence. In these circumstances, the income of the petitioner is taken as minimum wages of an unskilled worker prevalent at the time of accident i.e.04.12.2011 which were Rs.6656/.
20. Though the petitioner has claimed that he could not attend his working pattern for a period of one year, but he has not filed any documentary proof showing that he was advised bed rest for any specific period. Nevertheless, it can not be overlooked that the petitioner had suffered certain fracture injuries. Considering the nature of injuries sustained by petitioner, it is presumed that he would not have been able to work at all atleast for a period of six months or so. Thus, a sum of Rs. 39,936/(rounded of Rs.40,000/)(Rs. 6656/ x 6) is awarded in favour of petitioner under this head and against the respondents.
PAIN AND SUFFERING
21. Hon'ble Delhi High Court in the matter titled as " Vinod Kumar Bitoo Vs. Roshni & Ors." passed in appeal bearing no. MAC.APP 518/2010 decided on 05.07.12, has held as under: " It is difficult to measure the pain and suffering in terms of money which is suffered by a victim on Kapil Vs. Suresh Kumar & Anr. Page 12 of 23 MACP No. 5547/16; FIR No. 606/11 PS.Narela account of serious injuries caused to him in a motor vehicle accident. Since the compensation is required to be paid for pain and suffering an attempt must be made to award compensation which may have some objective relation with the pain and suffering underwent by the victim. For this purpose, the Claims Tribunal and the Courts normally consider the nature of injury; the part of the body where the injuries were sustained, surgeries, if any, underwent by the victim, confinement in the hospital and the duration of treatment".
22. Injured himself as PW1 has deposed in his evidence by way of affidavit(Ex PW1/A) that he had suffered grievous injuries in the accident in question. The ocular testimony of the petitioner is duly supported with his medical treatment record. Thus, he would have undergone great physical sufferings and mental shock on account of the accident in question. Keeping in view the medical treatment record of petitioner available on record and the nature of injuries suffered by him, I hereby award a sum of Rs.80,000/ towards pain and sufferings to the petitioner.
LOSS OF GENERAL AMENITIES & ENJOYMENT OF LIFE
23. As already mentioned above, there is sufficient evidence on record to establish that the petitioner remained under treatment for a considerable period. His treatment record would also show that he had suffered certain fracture injuries. Thus, he would not be able to enjoy general amenities of life after the accident in question, during rest of his life and his quality of life has been definitely affected. In view of the nature of injuries suffered by him, his continued treatment for considerable period, I Kapil Vs. Suresh Kumar & Anr. Page 13 of 23 MACP No. 5547/16; FIR No. 606/11 PS.Narela award a notional sum of Rs. 50,000/ towards loss of general amenities and enjoyment of life to the petitioner.
CONVEYANCE, SPECIAL DIET & ATTENDANT CHARGES
24. The petitioner has failed to lead any cogent evidence on record in respect of amount incurred by him on special diet and attendant charges. At the same time, it cannot be overlooked that the petitioner has suffered fracture injuries. Thus, he would have taken special rich protein diet for his speedy recovery and would have also incurred considerable amount towards conveyance charges while commuting to the concerned hospital as OPD patient for his regular check up & follow up during the period of his medical treatment. He would have been definitely helped by some person either outsider or from his family, to perform his daily activities as also while visiting the hospital during the course of his medical treatment. In these facts and circumstances, I hereby award a sum of Rs.20,000/ each for conveyance, special diet and attendant charges to the petitioner.
Thus, the total compensation is assessed as under:
1. Medical bills Rs. 9,00,000/
2. Loss of income Rs. 40,000/
3. Pain and suffering Rs. 80,000/
4. Loss of general amenities and Rs. 50,000/ enjoyment of life
5. Conveyance, special diet and Rs. 60,000/ Kapil Vs. Suresh Kumar & Anr. Page 14 of 23 MACP No. 5547/16; FIR No. 606/11 PS.Narela attendant charges Total Rs. 11,30,000/
25. Now, the question which arises for determination is as to which of the respondents is liable to pay the compensation amount. In view of findings on issue no.1(supra), it has been held that the accident took place due to negligence of respondent no.1 and hence, respondents no.3 to 5 stands discharged. It is admitted by respondent no.1 that the alleged zen car was insured with it at the relevant time of accident. The claim was, however, resisted on the ground that the insurance policy of the offending vehicle was an Act Policy and not a Comprehensive/Package Policy. It was thus urged that the insurance company had no liability to indemnify the claimants and that it was liable to be exonerated. To prove that the insurance policy qua the offending vehicle was an Act Policy, insurance company examined sh. Deepender Singh, Assistant Manager (Legal), of the insurance company as R2W1. R2W1 proved the insurance policy of offending vehicle as Ex.R2W1/1(colly) and in his testimony, he stated that it was a liability only policy which is also known as Act Policy. It is also pertinent to mention here that during the course of arguments, it was admitted by learned counsel for respondent No.1 that the insurance policy of the offending vehicle was an Act Policy.
26. The law with respect to compensation to be awarded to an Kapil Vs. Suresh Kumar & Anr. Page 15 of 23 MACP No. 5547/16; FIR No. 606/11 PS.Narela occupant in a car under the Comprehensive/Package Policy and an occupant in a car under Act only Policy is now well settled. In a judgment cited by learned counsel for the insurance company/respondent No.2 titled as ORIENTAL INSURANCE CO.LTD. VS. SURENDRA NATH LOOMBA & ORS. decided on 20.11.2012 by the Hon'ble Supreme Court, the judgments of NATIONAL INSURANCE CO.LTD. VS. BALAKRISHNAN & ANR. (Civil Appeal No.8163 of 2012 arising out of SLP © No.1232/2012 decided on 20.11.2012) and YASHPAL LUTHRA & ANR. VS. UNITED INDIA INSURANCE CO.LTD. & ANR. (2011 ACJ 1415) were discussed and it was held as follows:
"(12) It is apt to note here that this court in Bhagyalakshmi v. United India Insurance Co.Ltd. (2009) 7 SCC 148, after dealing with various facets and considering the authorities in Amrit Lal Sood v. Kaushalya Devi Thapar, 1998 ACJ 531 (SC); Asha Rani, 2003 ACJ 1 (SC); Tilak Singh, 2006 ACJ 1441 (SC); Jhuma Saha, 2007 ACJ 818 (SC); and Sudakaran K.V. 2008 ACJ 2045 (SC), has observed thus:
'Before this court, however, the nature of policies which came up for consideration were Act policies. This court did not deal with a package policy. If the Tariff Advisory Committee seeks to enforce its decision in regard to coverage of third party risk which would include all persons including occupants of the vehicle and the insurer having entered into a contract of insurance in relation thereto, we are of the opinion that the matter may require a deeper scrutiny.' (13) Recently this Bench in National Insurance Co.Ltd. v.
Balakrishnan, 2013 ACJ 199(SC), after referring to various decisions and copiously to the decision in Bhagyalakshmi, (2009) 7 SCC 148, held that there is a distinction between 'Act policy' and 'comprehensive/package policy'. Thereafter, the Bench Kapil Vs. Suresh Kumar & Anr. Page 16 of 23 MACP No. 5547/16; FIR No. 606/11 PS.Narela took note of a decision rendered by Delhi High Court in Yashpal Luthra v. United India Insurance Co.Ltd., 2011 ACJ 1415 (Delhi), wherein the High Court had referred to the circulars issued by the Tariff Advisory Committee (TAC) and Insurance Regulatory and Development Authority (IRDA). This court referred to the portion of circulars dated 16.11.2009 and 3.12.2009 which had been reproduced by the High Court and eventually held as follows:
'(19) It is extremely important to note here that till 31.12.2006 the Tariff12 Advisory Committee and, thereafter, from 1.1.2007, IRDA functioned as the statutory regulatory authorities and they are entitled to fix the tariff as well as the terms and conditions of the policies by all insurance companies. The High Court had issued notice to the Tariff Advisory Committee and the IRDA to explain the factual position as regards the liability of the insurance companies in respect of an occupant in a private car under the 'comprehensive/package policy'. Before the High Court the competent authority of IRDA had stated that on 2.6.1986 the Tariff Advisory Committee had issued instructions to all insurance companies to cover the pillion rider of a scooter/motorcycle under the 'comprehensive police' and the said position continues to be in vogue till date. It had also admitted that the 'comprehensive policy' is presently called a 'package policy'.
It is the admitted position, as the decision would show, the earlier circulars dated 18.3.1978 and 2.6.1986 continue to be valid and effective and all the insurance companies are bound to pay compensation in respect of the liability towards an occupant in a car under the 'comprehensive/package policy' irrespective of the terms and conditions contained in the policy. The competent authority of the IRDA was also examined before the High Court who stated that the circulars dated 18.3.1978 and 2.6.1986 of Tariff Advisory Committee were incorporated in the India Motor Tariff effective from 1.7.2002 and they continue to be operative and binding on the insurance companies. Because of the aforesaid factual position, the circulars dated 16.11.2009 and 3.12.2009, that have been reproduced hereinabove, were issued.
(20) It is also worthy to note that the High Court, Kapil Vs. Suresh Kumar & Anr. Page 17 of 23 MACP No. 5547/16; FIR No. 606/11 PS.Narela after referring to individual circulars issued by various insurance companies, eventually stated thus:
"In view of the aforesaid, it is clear that the 'comprehensive/package policy' of a twowheeler covers a pillion rider and the 'comprehensive/pakage policy' of a private car covers the occupants and where the vehicle is covered under a 'comprehensive/package policy', there is no need for Motor Accidents Claims Tribunal to go into the question whether insurance company is liable to compensate for the death or injury of a pillion rider on a two wheeler or the occupants in a private car. In fact, in view of the TAC's directives and those of the IRDA, such a plea was not permissible and ought not to have been raised as, for instance, it was done in the present case."
(21) In view of the aforesaid factual position there is no scintilla of doubt that a 'comprehensive/package policy' would cover the liability of the insurer for payment of compensation for the occupant in a car. There is no cavil that an 'Act policy' stands on a different footing than a 'comprehensive/package policy'. As the circulars have made the position very clear and the IRDA, which is presently the statutory authority, has commanded the insurance companies stating that a 'comprehensive/package policy' covers the liability, there cannot be any dispute in that regard. We may hasten to clarify that the earlier pronouncements were rendered with respect to the 'Act policy' which admittedly cannot cover a third party risk of an occupant in a car. But, if the policy is a 'comprehensive/package policy', the liability would be covered. These aspects were not noticed in the case of Bhagyalakshmi, (2009) 7 SCC 148 and, therefore, the matter was referred to a larger Bench. We are disposed to think that there is no necessity to refer the present matter to a larger Bench as the IRDA, which is presently the statutory authority, has clarified the position by issuing circulars which have been reproduced in the judgment by the High Court of Delhi and we have also reproduced the same.
(22) In view of the aforesaid legal position the question that emerges for consideration is whether in the case at hand the policy is an 'Act policy' or 'comprehensive/package policy'. There has been no discussion either by the Tribunal or the Kapil Vs. Suresh Kumar & Anr. Page 18 of 23 MACP No. 5547/16; FIR No. 606/11 PS.Narela High Court in this regard. True it is, before us, Annexure P1 has been filed which is a policy issued by the insurer. It only mentions the policy to be a 'comprehensive policy' but we are inclined to think that there has to be a scanning of the terms of the entire policy to arrive at the conclusion whether it is really a 'package policy' to cover the liability of an occupant in a car.' (14) We have quoted in extenso to reiterate the legal position. In the case at hand, the policy has not been brought on record. Learned counsel for the appellant insurer would submit that it is an 'Act policy'. Learned counsel for the respondent would seriously dispute and submit that extra premium might have been paid or it may be a 'comprehensive/package policy'. When certificate of insurance is filed but the policy is not brought on record it only conveys that the vehicle is insured. The nature of policy cannot be discerned from the same. Thus, we are disposed to think that it would be appropriate to remit the matter to the Tribunal to enable the insurer to produce the policy and grant liberty to the parties to file additional documents and also lead further evidence as advised, and we order accordingly.
(15) It needs no special emphasis to state that whether the insurer would be liable or not would depend upon the nature of the policy when it is brought on record in a manner as required by law."
27. Subsequent thereto, in R.MUTHURAJ VS. RANGASAMY & ORS. reported as 2017 ACJ 951 , the Hon'ble High Court of Madras while referring to all the aforesaid judgments held as under:
"14. Mere reading of the above observation would clearly show that unless the requisite premium is paid covering the risk of a gratuitous passenger, the insurance company is not liable to compensate such person. Therefore, the legal obligation arising under section 147 of the Act cannot be extended to the appellant, who is only a gratuitous passengers in the offending car which met with an accident and did not have a comprehensive/package insurance policy."Kapil Vs. Suresh Kumar & Anr. Page 19 of 23
MACP No. 5547/16; FIR No. 606/11 PS.Narela
28. Admittedly, in the instant case, the offending vehicle had "Act Policy" only and did not have "Comprehensive/Package Policy". Hence, in the light of the aforesaid judgments, it is crystal clear that the insurance company i.e. respondent No.2 cannot be held liable to pay any compensation to the petitioners/claimants and is thus, exonerated.
29. Respondent no.1 driver cum owner of the offending zen car bearing no. DL2CZ7346 is directed to make payment of compensation amount. Issue no. 2 is decided accordingly.
ISSUE NO. 3/RELIEF
30. In view of my findings on issues no. 1 and 2, I award compensation of Rs.11,30,000/ interest @ 9% per annum from date of filing of the petition i.e.02.07.2015 till the date of its realization. (Reliance placed on judgment "Oriental Insurance Company Ltd. Vs. Sangeeta Devi & Ors bearing MAC. APP. 165/2011 decided on 22.02.2016).
APPORTIONMENT
31. Statement of petitioner in terms of Clause 27 MCTAP was recorded on 13.09.2019. Having regard to the facts and circumstances of the case and in view of the said statement, it is hereby ordered that out of the awarded amount a sum of Rs. 9,50,000/(since the medical bills amounting to Rs.9,00,000/ have been proved on record) shall be Kapil Vs. Suresh Kumar & Anr. Page 20 of 23 MACP No. 5547/16; FIR No. 606/11 PS.Narela immediately released to the petitioner through his saving bank account No.4605000100056731 with Punjab National Bank and remaining amount alongwith interest amount be kept in the form of FDRs in the multiples of Rs. 10,000/ each for a period of one month, two months, three months and so on and so forth, having cumulative interest.
32. The FDRs to be prepared as per the aforesaid directions, shall be subject to the following directions:
(a) The Bank shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the claimant(s) i.e. the savings bank account(s) of the claimant(s) shall be an individual savings bank account(s) and not a joint account(s).
(b) The original fixed deposit shall be retained by the bank in safe custody. However, the statement containing FDR number, FDR amount, date of maturity and maturity amount shall be furnished by bank to the claimant(s).
(c) The monthly interest be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant(s) near the place of their residence.
(d) The maturity amounts of the FDR(s) be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant(s) near the place of their residence.
(e) No loan, advance, withdrawal or premature discharge be allowed on the fixed deposits without permission of the Court.
(f) The concerned bank shall not to issue any cheque book and/or debit Truckd to claimant(s). However, in case the debit Truckd and /or cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount. The bank shall debit Truckd(s) freeze Kapil Vs. Suresh Kumar & Anr. Page 21 of 23 MACP No. 5547/16; FIR No. 606/11 PS.Narela the account of the claimant(s) so that no debit Truckd be issued in respect of the account of the claimant(s) from any other branch of the bank.
(g) The bank shall make an endorsement on the passbook of the claimant(s) to the effect that no cheque book and/or debit Truckd have been issued and shall not be issued without the permission of the Court and claimant(s) shall produce the passbook with the necessary endorsement before the Court on the next date fixed for compliance.
(h) It is clarified that the endorsement made by the bank alongwith the duly signed and stamped by the bank official on the passbook(s) of the claimant(s) is sufficient compliance of clause(g) above.
33. Respondent no. 1 driver cum owner of the offending vehicle, is directed to deposit the compensation amount with SBI, Rohini Courts branch within 30 days as per above order, failing which respondent no.1 shall be liable to pay interest @ 12% p.a for the period of delay. Concerned Manager, SBI, Rohini Court Branch is directed to transfer the aforesaid amount of in the aforesaid saving bank account mentioned supra, on completing necessary formalities as per rules. He be further directed to keep the said amount in fixed deposit in its own name till the claimant approaches the bank for disbursement so that the award amount starts earning interest from the date of clearance of the cheques. Copy of this award be given dasti to claimant and respondent no.1/ driver cum owner for compliance. Copy of this award alongwith one photograph, specimen signature, copy of bank passbook and copy of residence proof of the petitioner, be sent to Nodal Officer of SBI, Rohini Court, Branch, Delhi for information and necessary compliance. Form IVB and Form V in Kapil Vs. Suresh Kumar & Anr. Page 22 of 23 MACP No. 5547/16; FIR No. 606/11 PS.Narela terms of MCTAP are annexed herewith as AnnexureA. Copy of order be also sent to concerned M.M and DLSA as per clause 31 and 32 of MCTAP.
Announced in the open Court on 04.03.2021 (DEVENDER KUMAR JANGALA) Judge MACT2 (North) Rohini Courts, Delhi Certified that above award contains 23 pages and each page is signed by me.
Digitally signed DEVENDER by DEVENDER KUMAR KUMAR JANGALA JANGALA Date: 2021.03.18 16:39:37 +0530 (DEVENDER KUMAR JANGALA) Judge MACT2 (North) Rohini Courts, Delhi Kapil Vs. Suresh Kumar & Anr. Page 23 of 23