Delhi District Court
Smt. Subh Laxmi Devi @ Shuv Lakshmi Devi vs Sh. Kailash Mandal on 22 September, 2018
MACP Nos. 6814/16, 6815/16 & 6812/16, FIR No. 403/16, PS Alipur DOD: 22.09.18
IN THE COURT OF SHRI VIDYA PRAKASH, PRESIDING OFFICER,
MOTOR ACCIDENT CLAIMS TRIBUNAL, ROHINI COURTS, DELHI
MAC Petition No. 6814/16 (Old MAC Petition No. 449/16)
1. Smt. Subh Laxmi Devi @ Shuv Lakshmi Devi
Widow of Late Sh. Buchan Yadav
(Widow of deceased)
2. Deepak Kumar
S/o. Late Sh. Buchan Yadav
(Minor son of deceased)
3. Ms. Switi Kumari
D/o. Late Sh. Buchan Yadav
(Minor daughter of deceased)
4. Shyam Kumar
S/o Late Sh. Buchan yadav
( Minor son of deceased)
5. Sonu Kumar
S/o Late Sh. Buchan yadav
( Minor son of deceased)
All R/o. VPO Gogri Kundi,
Post Gogri, Thana Gogri,
Khagaria, Bihar.
(Petitioners No.2 to 5 being minor, are
represented through their mother/
Natural Guardian/petitioner No. 1).
..........Petitioners
VERSUS
1. Sh. Kailash Mandal
S/o. Sh. Bhutai Mandal
R/o H.No. WZ301, Village Sakur Pur,
Delhi34.
(Driver).
2. Sh. Rajesh Kumar
S/o Sh. Radhey Shyam
R/o H.No. ZZ2356, Raja Park, Shakur Basti,
Delhi.
(Registered owner)
Smt. Subh Laxmi & Ors. Vs. Kailash Mandal, Smt. Rekha Devi & Ors. Vs. Kailash Mandal Page 1 of 32
& Smt. Anila Devi & Ors. Vs. Kailash Mandal & Ors.
MACP Nos. 6814/16, 6815/16 & 6812/16, FIR No. 403/16, PS Alipur DOD: 22.09.18
3. Shri Ram General Insurance Co. Ltd.
Having office at 1001, LGF, Nai Wala, Arya Samal Road
Karol Bagh, Delhi05.
(Insurer)
............Respondents
AND
MAC Petition No. 6815/16 (Old MAC Petition No. 444/16)
1. Smt. Rekha Devi
Widow of Late Sh Dalip Yadav
(Widow of deceased)
2. Ms. Archana Kumari
D/o Late Sh. Dalip Yadav
(Minor daughter of deceased)
3. Piyush Kumar
S/o Late Sh Dalip Yadav
(Minor son of deceased)
4. Ms. Sunita
D/o Late Sh. Dalip Yadav
(Minor daughter of deceased)
5. Vishal Kumar
S/o Late Sh Dalip Yadav
(Minor son of deceased)
6. Sh Guru Dev,
S/o Sh. Fudan Yadav
(Father of deceased)
All R/o Village Gogri Kundi,
PS Jamal Pur, District Khagariya,
Bihar.
............Petitioners
VERSUS
1. Sh. Kailash Mandal
S/o. Sh. Bhutai Mandal
R/o H.No. WZ301, Village Sakur Pur,
Delhi34.
(Driver).
Smt. Subh Laxmi & Ors. Vs. Kailash Mandal, Smt. Rekha Devi & Ors. Vs. Kailash Mandal Page 2 of 32
& Smt. Anila Devi & Ors. Vs. Kailash Mandal & Ors.
MACP Nos. 6814/16, 6815/16 & 6812/16, FIR No. 403/16, PS Alipur DOD: 22.09.18
2. Sh. Rajesh Kumar
S/o Sh. Radhey Shyam
R/o H.No. ZZ2356, Raja Park, Shakur Basti,
Delhi.
(Registered owner)
3. Shri Ram General Insurance Co. Ltd.
Having office at 1001, LGF, Nai Wala, Arya Samal Road
Karol Bagh, Delhi05.
(Insurer)
............Respondents
AND
MAC Petition No. 6812/16 (Old MAC Petition No. 447/16)
1. Smt. Anila Devi
Widow of Late Sh. Pawan Yadav
(Widow of deceased)
2. Gaurav
S/o Late Sh. Pawan Yadav
(Minor Son of deceased)
3. Saurabh
S/o Late Sh Pawan Yadav
(Minor son of deceased)
4. Kumari Khushi @ Khushboo
D/o Late Sh. Pawan Yadav
(Minor daughter of deceased)
5. Sh. Maheshwar Yadav
S/o Sh. Fundan Yadav
(Since expired)
6. Smt. Jaya Devi
W/o Sh Maheshwar Yadav
All R/o Village Gogri Kundi,
PS Jamal Pur, District Khagariya,
Bihar.
............Petitioners
Smt. Subh Laxmi & Ors. Vs. Kailash Mandal, Smt. Rekha Devi & Ors. Vs. Kailash Mandal Page 3 of 32
& Smt. Anila Devi & Ors. Vs. Kailash Mandal & Ors.
MACP Nos. 6814/16, 6815/16 & 6812/16, FIR No. 403/16, PS Alipur DOD: 22.09.18
VERSUS
1. Sh. Kailash Mandal
S/o. Sh. Bhutai Mandal
R/o H.No. WZ301, Village Sakur Pur,
Delhi34.
(Driver).
2. Sh. Rajesh Kumar
S/o Sh. Radhey Shyam
R/o H.No. ZZ2356, Raja Park, Shakur Basti,
Delhi.
(Registered owner)
3. Shri Ram General Insurance Co. Ltd.
Having office at 1001, LGF, Nai Wala, Arya Samal Road
Karol Bagh, Delhi05.
(Insurer)
............Respondents
Date of Institution : 22.09.2016
Date of Arguments : 06.09.2018
Date of Decision : 22.09.2018
APPEARENCES:
Sh. Atul Rathi, Adv for petitioners/Lrs of deceased.
Sh Paramjeet Adv for respondents No. 1 & 2.
Sh. S.K Tyagi, Adv for respondent no. 3.
Petitions under Section 166 and 140 of M.V. Act, 1988
for grant of compensation
AWARD
1. Vide this common order, I shall dispose of all these three claim
petitions with regard to fatal injuries sustained by Sh. Buchun Yadav (MACP
No. 6814/16), Sh Dalip Yadav (MACP No. 6815/16) and Sh. Pawan Yadav
(MACP No. 6812/16) apart from injuries sustained by other persons namely
Arvind Yadav (PW4), Nanhu etc. in Motor Vehicular Accident which occurred
on 25.06.2016 at about 4.00 am at GTK Road, Palla Red Light, near Lavanya
Farm House, Delhi, involving Truck bearing registration no. HR55Q4029
Smt. Subh Laxmi & Ors. Vs. Kailash Mandal, Smt. Rekha Devi & Ors. Vs. Kailash Mandal Page 4 of 32
& Smt. Anila Devi & Ors. Vs. Kailash Mandal & Ors.
MACP Nos. 6814/16, 6815/16 & 6812/16, FIR No. 403/16, PS Alipur DOD: 22.09.18
(alleged offending vehicle) being driven at very high speed and in rash and
negligent manner by its driver namely Sh. Kailash Mandal (R1 herein).
2. All these claim petitions were consolidated for the purpose of
recording evidence vide order dated 07.09.2017 passed by this Claims
Tribunal and MACP No. 6814/16 titled as " Smt. Subh Laxmi Devi & Ors.
Vs. Kailash Mandal & Ors" was treated as the leading case. It may be
noted here that claim petition of injured Arvind Yadav was withdrawn by him
on 06.09.18, whereas injured Nanhu had withdrawn his claim petition on
07.09.17. Accordingly, the evidence was led on behalf of both the sides in the
leading case for the purpose of all these matters.
FACTS OF THE CASES
3. According to the DAR petitions, Sh. Buchun Singh (since expired) alongwith other occupants namely Pawan Yadav, Dalip Yadav (Since expired), Arvind Yadav, Nanhu etc. were travelling in Truck No. HR55Q4029 which was being driven by its driver namely Kailash Mandal (R1) at high speed, rashly and negligently and in complete disregard of traffic regulation. It is claimed that said driver was also talking on mobile phone whlie driving the said truck at the time of accident. It is further claimed that the said truck was loaded with cement bags and it was going from Cement Siding, Shakur Basti, Punjabi Bagh to Village Bakhtawar Pur. All the aforesaid three deceased persons namely Bucchun Yadav, Pawan Yadav and Dalip Yadav were sitting therein as authorised representatives of the owner of goods for loading or unloading of goods. When they reached at GT Karnal Road towards Palla Red Light, said truck struck against right hand side divider of the road with great force. As a result thereof, said truck turned upside down on its left side. The occupants alongwith cement bags fell down on the road and they sustained multiple grievous injuries. Sh. Buccun Yadav, Pawan Yadav and Sh Dalip Yadav succumbed to their injuries on the same day, whereas Arvind Yadav and Nanhu sustained injuries. They were removed to SRHC Hospital, Narela. The driver of said truck fled away from the spot after leaving the truck at the spot itself. FIR No. 403/16 U/s 279/337/304A IPC was registered at PS Alipur with Smt. Subh Laxmi & Ors. Vs. Kailash Mandal, Smt. Rekha Devi & Ors. Vs. Kailash Mandal Page 5 of 32 & Smt. Anila Devi & Ors. Vs. Kailash Mandal & Ors.
MACP Nos. 6814/16, 6815/16 & 6812/16, FIR No. 403/16, PS Alipur DOD: 22.09.18 regard to the accident in question.
4. It is averred in MACP No. 6814/16 that Buchun Yadav was aged about 35 years old; he was working as Labourer at cement siding, Shakur Basti, Delhi and was earning Rs. 13,500/ per month at the time of accident in question. The petitioners are his widow and children.
5. It is averred in MACP No. 6815/16 that Sh. Dalip Yadav was aged about 30 years old; he was working as Labourer at cement siding, Shakur Basti, Delhi and was earning Rs. 13,000/ per month at the time of accident in question. The petitioners are his widow and children.
6. It is averred in MACP No. 6812/16 that Sh. Pawan Yadav was aged about 32 years old; he was working as Labourer at cement siding, Shakur Basti, Delhi and was earning Rs. 13,000/ per month at the time of accident in question. The petitioners are his widow and children.
7. The respondent no.1 i.e. driver has filed separate but identical WS in all these claim petitions, wherein he has nowhere disputed the factum of accident in question or the fact that said truck was being driven by him on the aforesaid date, time and place of accident. He has also not disputed that the aforesaid truck was loaded with cement bags and it had struck against the road divider and turned upside down. However, he has claimed that he was driving the said truck at very slow speed on the given date, time and place of accident but unfortunately, front axle of said truck disordered and due to said reason, it suddenly touched the divider and fell down. He has also claimed that he was having valid DL for the category of HTV as on the date of accident and Sh Rajesh Kumar S/o Sh Radhey Shyam (R2) is the registered owner of said truck.
8. The respondent no. 2 i.e. regd owner has filed his separate but identical WS in all these cases, wherein he has admitted that the is the regd owner of the aforesaid truck, as also the fact that the said truck was being driven by R1 at the time of accident. He has claimed that R1 was having valid DL for the category of HTV at the time of accident. He has further claimed that Smt. Subh Laxmi & Ors. Vs. Kailash Mandal, Smt. Rekha Devi & Ors. Vs. Kailash Mandal Page 6 of 32 & Smt. Anila Devi & Ors. Vs. Kailash Mandal & Ors.
MACP Nos. 6814/16, 6815/16 & 6812/16, FIR No. 403/16, PS Alipur DOD: 22.09.18 he did not hear any complaint against R1 till date and R1 was driving the said truck at very slow speed. He has further claimed that Truck bearing registration no. HR55Q4029 was duly insured with R3 as on the date of accident and risk of authorised representatives of owner of goods i.e. labourers, was covered under the said Policy. He has also averred that S/Sh. Bucchun Yadav, Pawan, Dalip and Varun were sitting in the said vehicle as authorised representatives of the owner of goods for safety, loading and unloading of said goods.
9. Respondent no. 3/insurance company has filed its separate but identical WS in all these cases, wherein it has raised statutory defence as provided in Section 149(2) M.V Act. It has averred that Truck bearing registration no. HR55Q4029 is goods vehicle and all the aforesaid three deceased persons and other persons/labouerers were travelling in the rear portion thereof, which is not authorised. It has further claimed that no extra premium was paid by owner of the vehicle to cover the risk of labourers. Hence, the deceased persons were travelling as gratuitous passengers, which constitutes breach of the terms and conditions of insurance policy on the part of insured. Hence, it is not liable to pay any compensation amount in these cases. However, It has admitted that Truck bearing no. HR55Q4029 was insured with it in the name of respondent no. 2, vide Policy No. 101026/31/17/001566 for the period in question.
10. From pleading of the parties, the following issues were framed in MACP No. 6814/16 by this Claims Tribunal vide order dated 23.02.2017 :
1) Whether the deceased Bucchan Yadav suffered fatal injuries in road traffic accident on 25.06.2016 at 5.10, GTK Road, Palla Light, near Lavanya Farm House within the jurisdiction of PS Alipur due to rashness and negligence on the part of the driver Sh Kailash Mandal who was driving truck bearing registration no. HR55Q4029, owned by Sh Rajesh Kumar and insured with Shri Ram General Insurance Co Ltd.?OPP
2) Whether the Lrs of deceased are entitled to any Smt. Subh Laxmi & Ors. Vs. Kailash Mandal, Smt. Rekha Devi & Ors. Vs. Kailash Mandal Page 7 of 32 & Smt. Anila Devi & Ors. Vs. Kailash Mandal & Ors.
MACP Nos. 6814/16, 6815/16 & 6812/16, FIR No. 403/16, PS Alipur DOD: 22.09.18 compensation if so to what amount and from whom? OPP.
3) Relief.
11. From pleading of the parties, the following issues were framed in MACP No. 6815/16 by this Claims Tribunal vide order dated 23.02.2017 :
1) Whether the deceased Dalip Yadav suffered fatal injuries in road traffic accident on 25.06.2016 at 5.10, GTK Road, Palla Light, near Lavanya Farm House within the jurisdiction of PS Alipur due to rashness and negligence on the part of the driver Sh Kailash Mandal who was driving truck bearing registration no. HR55Q4029, owned by Sh Rajesh Kumar and insured with Shri Ram General Insurance Co Ltd.?OPP
2) Whether the Lrs of deceased are entitled to any compensation if so to what amount and from whom? OPP.
3) Relief.
12. From pleading of the parties, the following issues were framed in MACP No. 6812/16 by this Claims Tribunal vide order dated 23.02.2017 :
1) Whether the deceased Pawan Yadav suffered fatal injuries in road traffic accident on 25.06.2016 at 5.10, GTK Road, Palla Light, near Lavanya Farm House within the jurisdiction of PS Alipur due to rashness and negligence on the part of the driver Sh Kailash Mandal who was driving truck bearing registration no. HR55Q4029, owned by Sh Rajesh Kumar and insured with Shri Ram General Insurance Co Ltd.?OPP
2) Whether the Lrs of deceased are entitled to any compensation if so to what amount and from whom? OPP.
3) Relief.
13. In order to establish their claim, the petitioners in all these cases, have examined four witnesses i.e. PW1 Smt. Subha Laxmi @ Shuv Lakshmi Smt. Subh Laxmi & Ors. Vs. Kailash Mandal, Smt. Rekha Devi & Ors. Vs. Kailash Mandal Page 8 of 32 & Smt. Anila Devi & Ors. Vs. Kailash Mandal & Ors.
MACP Nos. 6814/16, 6815/16 & 6812/16, FIR No. 403/16, PS Alipur DOD: 22.09.18 Devi @ Shubh Laxmi Devi (Widow of deceased Buchun Yadav), PW2 Smt. Anila (Widow of deceased Pawan Yadav), PW3 Smt. Rekha Devi (Widow of deceased Dalip Yadav) and PW4 Sh Arvind Yadav (alleged eye witness). Counsels for petitioners closed evidence on 21.12.17. On the other hand, the respondents no. 1 & 2 did not lead any evidence and closed their evidence on 13.04.18. Respondent no. 3 i.e. insurance company has examined only one witness i.e. R3W1 namely Sh Rama Raman, Legal Officer and RE on its behalf was closed on 21.12.2017.
14. I have already heard the arguments advanced by Ld counsels for the parties and have also perused the record. Both the sides were directed to submit their respective submissions in Form IV A but they have not submitted the same on record. My findings on the issues are as under: ISSUE NO. 1 ( IN ALL THE THREE CASES)
15. For the purpose of this issue, the testimony of PW4 Sh Arvind Yadav is relevant. In his evidence by way of affidavit (Ex. PW4/A), he deposed that on 25.06.2016 at about 4.00 am, Sh Buchun Yadav, Sh. Pawan Yadav, Dalip Yadav and Varun were travelling in Truck No. HR55Q4029 which was loaded with cement bags, as authorised representatives of the owner of goods for the purpose of loading, unloading and saftey of goods. He also deposed that he alongwith Nunnu were also travelling in the same truck as employees of owner of the said truck which was being driven by R1 at high speed, rashly and negligently and in complete disregard to traffic regulations. He further deposed that when they reached at GT Karnal Road towards Palla Red Light, the driver of said truck while he was talking to someone on his mobile phone, struck said truck against right hand side divider of the road with force. As a result thereof, the truck turned upside down on its left side and the occupants alongwith loaded cemented bags fell down on the road. He further deposed that the occupants suffered multiple grievous injuries. He also deposed that after causing the accident, the truck driver fled away from the spot after leaving the truck, occupants and the goods. He further deposed that all the injured persons were removed to SRHC Hospital, Narela, where their MLCs Smt. Subh Laxmi & Ors. Vs. Kailash Mandal, Smt. Rekha Devi & Ors. Vs. Kailash Mandal Page 9 of 32 & Smt. Anila Devi & Ors. Vs. Kailash Mandal & Ors.
MACP Nos. 6814/16, 6815/16 & 6812/16, FIR No. 403/16, PS Alipur DOD: 22.09.18 were prepared. However, Bucchun Yadav, Pawan Yadav and Dalip Yadav succumbed to their injuries sustained on account of accident. He categorically deposed that the accident occurred solely due to rash and negligent driving of Truck bearing registration no. HR55Q4029 by R1.
16. During his crossexamination on behalf of respondents no. 1 & 2, he admitted that he was present at the time of accident. The offending truck was being driven at the speed of 7075 kmph and its driver was also talking on mobile phone at that time. The labourers were sitting for loading and unloading of goods as also for looking after safety of goods. During his cross examination on behalf of insurance company, he deposed that he himself was sitting in Cabin of the truck, whereas deceased Buchun, Pawan and Dalip were sitting on the cement bags in the rear portion of the truck.
17. It is evident from the testimony of PW4 namely Sh. Arvind Yadav that the respondents could not impeach his testimony through litmus test of crossexamination and said witness is found to have successfully withstood the test of crossexamination. Even otherwise, the testimony of this witness inspires confidence as he himself is also shown to have sustained injuries due to the accident. On the other hand, none of the respondents examined any witness in order to rebut the testimony of this witness during the course of inquiry. Moreover, FIR No. 403/16 (supra) (which is part of DAR Ex. PW1/7 colly) would show that same has also been registered on the statement of this witness. The contents of FIR would further reveal that he has narrated therein same sequence of facts which led to the accident in question, as deposed by him as PW4 during the course of inquiry. Hence, there is no reason to disbelieve his unchallenged and uncontroverted testimony made on oath.
18. It is pertinent to note that the respondent no.1/driver of aforesaid truck no. HR55Q4029, 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 not 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 Smt. Subh Laxmi & Ors. Vs. Kailash Mandal, Smt. Rekha Devi & Ors. Vs. Kailash Mandal Page 10 of 32 & Smt. Anila Devi & Ors. Vs. Kailash Mandal & Ors.
MACP Nos. 6814/16, 6815/16 & 6812/16, FIR No. 403/16, PS Alipur DOD: 22.09.18 driving of Truck no. HR55Q4029 by him.
19. Moreover, it is an undisputed fact that FIR no. 403/16 u/s 279/337/304A IPC was registered at PS Alipur with regard to accident in question. Copy of said FIR (which is part of DAR Ex PW1/7 Colly), would show that same was registered on 25.06.2016 i.e. on the day of accident itself. Thus, FIR in question was promptly lodged with regard to the accident in question and there is no possibility of any false implication of driver of offending vehicle or false involvement of the aforesaid vehicle in this case. The very fact that R1 was chargesheeted (which is part of DAR Ex. PW1/7 colly) by the police for offences punishable u/s. 279/337/304A IPC would further show that Investigating Agency also concluded after completion of the investigation that said accident had occurred due to rash and negligent driving of truck bearing registration no. HR55Q4029 by its driver namely Kailash Mandal i.e. R1 herein. Same also points out towards the fact that the accident in question occurred due to rash and negligent driving of aforesaid vehicle by respondent no. 1.
20. Not only this, copies of MLCs of deceased namely Buchun Singh, Dalip and Pawan (which are part of DAR Ex PW1/7 colly) prepared at SRHC Hospital, would show that they had been removed to said hospital on 25.06.16 at 6.11 am with alleged history of RTA. Further, copies of PM reports (which are also part of DAR Ex. PW1/7 colly) of deceased persons have been placed on record. The PM Report of deceased Buchun Singh reveals that his cause of death is opined due to cumulative effect of heady injury and hemorrhage secondary to poly trauma sustained, produced by blunt force impact, whereas PM report of deceased Dalip reveals that his cause of death is opined due to head injury produced by blunt force impact and copy of PM report of deceased Pawan reveals that his cause of death is opined due to hemorrhage secondary to poly trauma sustained produced by blunt force impact. All the injuries are ante mortem in nature, fresh in duration, caused by blunt force and possible in a road traffic accident. All the aforesaid documents, which have gone unchallenged and unrebutted from the side of respondents, Smt. Subh Laxmi & Ors. Vs. Kailash Mandal, Smt. Rekha Devi & Ors. Vs. Kailash Mandal Page 11 of 32 & Smt. Anila Devi & Ors. Vs. Kailash Mandal & Ors.
MACP Nos. 6814/16, 6815/16 & 6812/16, FIR No. 403/16, PS Alipur DOD: 22.09.18 also corroborate the ocular testimony of PW4 to the aforesaid extent.
21. Copy of Mechanical inspection report dated 25.06.16 (which is part of DAR Ex PW1/7 (colly)) of truck bearing registration no. HR55Q4029, would show fresh damage i.e. its left side body was found scratched and damaged, its cabin left side portion was found scratched and damaged, its front left side wind screen glasses were broken, its left side mirror was found damaged, its electric wiring system was found damaged, its left side safety guard was found damaged, its front side road spring U bolt was found broken & its suspension was damaged, its front side wheel/steering tie rod was found damaged/bended and its front both sides wheel brake hose was found broken. Furthermore, the aforesaid vehicle is shown to have been seized by the police from the place of accident on 25.06.16 i.e. on the date of accident itself as per copy of its seizure memo (which is also part of DAR Ex PW1/7 colly ). Same would show that the accident was caused by the aforesaid truck only.
22. Furthermore, in response to notice U/s 133 M.V Act ( which is part of DAR Ex. PW1/7 colly ) served upon respondent no. 2/ regd owner of truck bearing registration no. HR55Q4029, written reply was furnished by him that said vehicle was being driven by his driver Kailash Mandal S/o Sh Bhutti Mandal on 25.06.16. Same would also corroborate the testimony of PW4 to the extent that the aforesaid vehicle was being driven by R1 at the time of accident.
23. In view of the aforesaid discussion and the evidence which has come on record, it is held that the petitioners have been able to prove on the basis of pre ponderence of probabilities that Bucchan Yadav, Pawan & Dalip had sustained fatal injuries in the road accident which took place on 25.06.2016 at about 5.10 am at GTK Palla Red Light, near Lavanya Farm House due to rash and negligent driving of driver of Truck bearing registration No. HR55Q4029 by respondent no.1. Thus, this issue is decided in favour of petitioners and against the respondents in all these claim petitions.
ISSUE NO.2
24. Section 168 of the Act enjoins the Claims Tribunal to hold an Smt. Subh Laxmi & Ors. Vs. Kailash Mandal, Smt. Rekha Devi & Ors. Vs. Kailash Mandal Page 12 of 32 & Smt. Anila Devi & Ors. Vs. Kailash Mandal & Ors.
MACP Nos. 6814/16, 6815/16 & 6812/16, FIR No. 403/16, PS Alipur DOD: 22.09.18 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.
Compensation Amount in MAC Petition No. 6814/16 LOSS OF DEPENDENCY
25. As already stated above, the petitioners in this claim petition have claimed that deceased Bucchan Yadav was aged 35 years and he was labourer at the time of accident in question. The petitioners are widow, three sons and one daughter of deceased.
26. PW1 Smt. Subha Laxmi Devi @ Shubh Laxmi Devi (widow of deceased) has deposed in her evidence by way of affidavit (Ex. PW1/A) that deceased Bucchan Yadav is survived by five legal heirs i.e. the petitioners herein. She further deposed that deceased was working as labourer at Cement Siding and was earning Rs. 13,500/ per month at the time of accident and he was aged 35 years old at that time. She has relied upon the following documents: Sr. No. Description of Remarks documents
1. Copy of her Aadhar Card Ex PW1/1
2. Copy of Aadhar Card of Ex. PW1/2 Deepak Kumar
3. Copy of Aadhar Card of Ex. PW1/3 Ms. Swati Kumari
4. Copy of Aadhar Card of Ex. PW1/4 Shyam Kumar
5. Copy of Aadhar Card of Ex PW1/5 Sonu Kumar
6. Copy of Aadhar Card of Ex. PW1/6 deceased
7. DAR Ex. PW1/8 (colly)
27. During her cross examination, she deposed that her deceased husband was working with Pawan and Dalip. Their salary used to be paid by Smt. Subh Laxmi & Ors. Vs. Kailash Mandal, Smt. Rekha Devi & Ors. Vs. Kailash Mandal Page 13 of 32 & Smt. Anila Devi & Ors. Vs. Kailash Mandal & Ors.
MACP Nos. 6814/16, 6815/16 & 6812/16, FIR No. 403/16, PS Alipur DOD: 22.09.18 the owner of the goods. Her deceased husband was sitting in the offending truck at the instance of owner of the goods for loading and unloading as well as for safety of the goods. She could not produce any document to show that deceased was travelling in the goods vehicle as authorised representative of the owner of goods or that deceased was earning Rs. 13,500/ per month. She denied the suggestion that deceased was travelling as unauthorised passenger or that he was not earning Rs. 13,500/ per month at the time of accident.
28. During the course of arguments, counsel for petitioners fairly conceded that for want of any cogent and definite evidence being led by petitioners regarding monthly income of deceased, his income should be considered as per Minimum Wages Act in order to calculate the loss of dependency. He however argued that future prospects should also be awarded to the petitioners as per law.
29. PW1, who is widow of deceased, has admitted during her cross examination that there was no documentary proof to show that deceased was earning Rs. 13,500/ per month at the time of accident. Mere bald testimony in this regard, would not be sufficient to assume the notional income of deceased to be Rs. 13,500/ per month at the time of accident. For want of cogent and definite evidence being led by petitioners with regard to actual monthly income of deceased, his monthly income is being taken as equivalent to that of an unskilled worker under Minimum Wages Act applicable during the relevant period. The Minimum Wages of an unskilled worker as on the date of accident, which is 25.06.16, were Rs. 9048/ per month.
30. In copy of Aadhar Card ( Ex. PW1/6), the date of birth of deceased is mentioned as 01.01.1979. The date of accident is 25.06.16. The respondents have not disputed the age of deceased as mentioned in copy of his Aadhar Card filed on record. They have also not led any evidence in order to controvert the said age of deceased as claimed by the petitioners. Thus, the age of deceased is accepted as 37 years & 6 months approximately at the time of accident. Hence, the multiplier of 15 would be applicable in view of recent pronouncement made by Constitutional Bench of Smt. Subh Laxmi & Ors. Vs. Kailash Mandal, Smt. Rekha Devi & Ors. Vs. Kailash Mandal Page 14 of 32 & Smt. Anila Devi & Ors. Vs. Kailash Mandal & Ors.
MACP Nos. 6814/16, 6815/16 & 6812/16, FIR No. 403/16, PS Alipur DOD: 22.09.18 Apex Court in the case titled as "National Insurance Company Ltd. Vs. Pranay Sethi & Ors." passed in SLP(Civil) No. 25590/14 decided on 31.10.17.
31. Considering the fact that deceased is claimed to be self employed and there being no cogent evidence that he was having permanent job, future prospects @ 40% has to be awarded in favour of petitioners in view of recent pronouncement made by Constitutional Bench of Apex Court in the case titled as "National Insurance Company Ltd. Vs. Pranay Sethi & Ors." mentioned supra, as well as in view of recent decision of Hon'ble Delhi High Court in appeal bearing MAC APP No. 798/2011 titled as "Bajaj Allianz General Insurance Company Ltd. Vs. Pooja & Ors", decided on 02.11.17.
32. Considering the fact that there were five dependents at the time of accident, there has to be deduction of 1/4th as held in the case of Pranay Sethi mentioned supra. The minimum wages of an unskilled worker as on the date of accident, were Rs. 9048/ per month. Thus, the total of loss of dependency would come out to Rs. 17,10,072/ (Rs. 9048 X 3/4 X 140/100 X 12 X 15). Hence, a sum of Rs. 17,10,072/ is awarded under this head in favour of the petitioners.
LOSS OF LOVE & AFFECTION
33. After the celebrated judgment of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors.", mentioned supra, Hon'ble Delhi High Court in appeal titled as "Bajaj Allianz General Insurance Company Ltd. Vs. Pooja & Ors", mentioned supra, has been pleased to observe in para 18 of the judgment that the constitution bench decision in Pranay Sethi (supra) does not recognize any other nonpecuniary head of damages. Hence, no amount of compensation is being awarded under this head.
LOSS OF CONSORTIUM
34. In view of celebrated judgment of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors.", mentioned supra delivered by Constitutional Bench of Hon'ble Apex Court, a sum of Rs. 40,000/ is awarded in favour of Smt. Subh Laxmi & Ors. Vs. Kailash Mandal, Smt. Rekha Devi & Ors. Vs. Kailash Mandal Page 15 of 32 & Smt. Anila Devi & Ors. Vs. Kailash Mandal & Ors.
MACP Nos. 6814/16, 6815/16 & 6812/16, FIR No. 403/16, PS Alipur DOD: 22.09.18 petitioner no. 1 Smt. Subh Laxmi Devi (being widow of deceased) towards loss of consortium.
LOSS OF ESTATE & FUNERAL EXPENSES
35. In view of the facts and circumstances of the present case and in view of decision of Hon'ble Apex Court in the case of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors." mentioned supra, a sum of Rs. 15,000/ each is awarded in favour of petitioners on account of loss of estate and funeral expenses.
The total compensation is assessed as under:
1. Loss of dependency Rs. 17,10,072/
2. Loss of Consortium Rs. 40,000/
3. Loss of Estate & Funeral Expenses Rs. 30,000/ Total Rs. 17,80,072/ Rounded Off to Rs. 17,80,500/ Compensation Amount in MAC Petition No. 6815/16 LOSS OF DEPENDENCY
36. As already stated above, the petitioners in this claim petition have claimed that deceased Sh. Dalip Yadav was aged 30 years and he was labourer at the time of accident in question. The petitioners are widow, two daughters, two sons and father of deceased.
37. PW3 Smt. Rekha Devi (widow of deceased) has deposed in her evidence by way of affidavit (Ex. PW3/A) that deceased Dalip Yadav is survived by six legal heirs i.e. the petitioners herein. She further deposed that deceased Dalip Yadav was aged 30 years; he was working as labourer as Cement Siding and was earning Rs. 13,000/ per month at the time of accident. She has relied upon the following documents: Sr. No. Description of Remarks documents
1. Copy of her Election I Ex PW3/1 Card Smt. Subh Laxmi & Ors. Vs. Kailash Mandal, Smt. Rekha Devi & Ors. Vs. Kailash Mandal Page 16 of 32 & Smt. Anila Devi & Ors. Vs. Kailash Mandal & Ors.
MACP Nos. 6814/16, 6815/16 & 6812/16, FIR No. 403/16, PS Alipur DOD: 22.09.18
2. Copy of Aadhar Card of Ex. PW3/2 Smt. Archana Kumari
3. Copy of Aadhar Card of Ex. PW3/3 Piyush Kumar
4. Copy of Aadhar Card of Ex. PW3/4 Ms. Sunita Kumari
5. Copy of Aadhar Card of Ex PW3/5 Vishal Kumar
6. Copy of Aadhar Card of Ex. PW3/6 Guru Dev Yadav
7. Copy of Aadahar Card of Ex. PW3/7 deceased
8. DAR Ex. PW1/7 (colly)
38. During her cross examination, she deposed that her deceased husband was working with Pawan and Buchun. Their salary used to be paid by the owner of the goods. Her deceased husband was sitting in the offending truck at the instance of owner of the goods for loading and unloading as well as for safety of the goods. She could not produce any document to show that deceased was travelling in the goods vehicle as authorised representative of the owner of goods or that deceased was earning Rs. 13,500/ per month. She denied the suggestion that deceased was travelling as unauthorised passenger or that he was not earning Rs. 13,500/ per month at the time of accident.
39. During the course of arguments, counsel for petitioners fairly conceded that for want of any cogent and definite evidence being led by petitioners regarding monthly income of deceased, his income should be considered as per Minimum Wages Act in order to calculate the loss of dependency. He however argued that future prospects should also be awarded to the petitioners as per law.
40. PW3, who is widow of deceased, has admitted during her cross examination that there was no documentary proof to show that deceased was earning Rs. 13,000/ per month at the time of accident. Mere bald testimony in this regard, would not be sufficient to assume the notional income of deceased to be Rs. 13,000/ per month at the time of accident. For want of cogent and Smt. Subh Laxmi & Ors. Vs. Kailash Mandal, Smt. Rekha Devi & Ors. Vs. Kailash Mandal Page 17 of 32 & Smt. Anila Devi & Ors. Vs. Kailash Mandal & Ors.
MACP Nos. 6814/16, 6815/16 & 6812/16, FIR No. 403/16, PS Alipur DOD: 22.09.18 definite evidence being led by petitioners with regard to actual monthly income of deceased, his monthly income is being taken as equivalent to that of an unskilled worker under Minimum Wages Act applicable during the relevant period. The Minimum Wages of an unskilled worker as on the date of accident, which is 25.06.16, were Rs. 9048/ per month.
41. In copy of Aadhar Card ( Ex. PW3/7), the year of birth of deceased is mentioned as 1986. The date of accident is 25.06.16. The respondents have not disputed the age of deceased as mentioned in copy of his Aadhar Card filed on record. They have also not led any evidence in order to controvert the said age of deceased as claimed by the petitioners. Thus, the age of deceased is accepted as 30 years at the time of accident. Hence, the multiplier of 17 would be applicable in view of recent pronouncement made by Constitutional Bench of Apex Court in the case titled as "National Insurance Company Ltd. Vs. Pranay Sethi & Ors."mentioned supra.
42. Considering the fact that deceased is claimed to be self employed and there being no cogent evidence that he was having permanent job, future prospects @ 40% has to be awarded in favour of petitioners in view of recent pronouncement made by Constitutional Bench of Apex Court in the case titled as "National Insurance Company Ltd. Vs. Pranay Sethi & Ors." mentioned supra, as well as in view of recent decision of Hon'ble Delhi High Court in appeal bearing MAC APP No. 798/2011 titled as "Bajaj Allianz General Insurance Company Ltd. Vs. Pooja & Ors", decided on 02.11.17.
43. Considering the fact that there were five dependents at the time of accident, there has to be deduction of 1/4th as held in the case of Pranay Sethi mentioned supra. The minimum wages of an unskilled worker as on the date of accident, were Rs. 9048/ per month. Thus, the total of loss of dependency would come out to Rs. 19,38,082/ (rounded off) (Rs. 9048 X 3/4 X 140/100 X 12 X 17). Hence, a sum of Rs. 19,38,082/ is awarded under this head in favour of the petitioners.
Smt. Subh Laxmi & Ors. Vs. Kailash Mandal, Smt. Rekha Devi & Ors. Vs. Kailash Mandal Page 18 of 32& Smt. Anila Devi & Ors. Vs. Kailash Mandal & Ors.
MACP Nos. 6814/16, 6815/16 & 6812/16, FIR No. 403/16, PS Alipur DOD: 22.09.18 LOSS OF LOVE & AFFECTION
44. After the celebrated judgment of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors.", mentioned supra, Hon'ble Delhi High Court in appeal titled as "Bajaj Allianz General Insurance Company Ltd. Vs. Pooja & Ors", mentioned supra, has been pleased to observe in para 18 of the judgment that the constitution bench decision in Pranay Sethi (supra) does not recognize any other nonpecuniary head of damages. Hence, no amount of compensation is being awarded under this head.
LOSS OF CONSORTIUM
45. In view of celebrated judgment of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors.", mentioned supra delivered by Constitutional Bench of Hon'ble Apex Court, a sum of Rs. 40,000/ is awarded in favour of petitioner no. 1 Smt Rekha Devi (being widow of deceased) towards loss of consortium.
LOSS OF ESTATE & FUNERAL EXPENSES
46. In view of the facts and circumstances of the present case and in view of decision of Hon'ble Apex Court in the case of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors." mentioned supra, a sum of Rs. 15,000/ each is awarded in favour of petitioners on account of loss of estate and funeral expenses.
The total compensation is assessed as under:
1. Loss of dependency Rs. 19,38,082/
2. Loss of Consortium Rs. 40,000/
3. Loss of Estate & Funeral Expenses Rs. 30,000/ Total Rs. 20,08,082/ Rounded Off to Rs. 20,08,500/ Compensation Amount in MAC Petition No. 6812/16 LOSS OF DEPENDENCY
47. As already stated above, the petitioners in this claim petition have claimed that deceased Pawan Yadav was aged 32 years and he was Smt. Subh Laxmi & Ors. Vs. Kailash Mandal, Smt. Rekha Devi & Ors. Vs. Kailash Mandal Page 19 of 32 & Smt. Anila Devi & Ors. Vs. Kailash Mandal & Ors.
MACP Nos. 6814/16, 6815/16 & 6812/16, FIR No. 403/16, PS Alipur DOD: 22.09.18 labourer at the time of accident in question. The petitioners are widow, two sons and one daughter and parents of deceased.
48. PW1 Smt. Anila Devi (widow of deceased) has deposed in her evidence by way of affidavit (Ex. PW2/A) that deceased Pawan Yadav is survived by six legal heirs i.e. the petitioners herein. She further deposed that deceased was working as labourer at Cement Siding and was earning Rs. 13,000/ per month at the time of accident and he was aged 32 years old at that time. She has relied upon the following documents: Sr. No. Description of Remarks documents
1. Copy of her Aadhar Card Ex PW2/1
2. Copy of Aadhar Card of Ex. PW2/2 Gaurav Kumar
3. Copy of Aadhar Card of Ex. PW2/3 Shourabh Kumar
4. Copy of Aadhar Card of Ex. PW2/4 Ms. Khushi Kumari
5. Copy of Aadhar Card of Ex PW2/5 Jaya Devi
6. DAR Ex. PW1/7 (colly)
49. During her cross examination, she deposed that her deceased husband was working with Dalip and Buchun. Their salary used to be paid by the owner of the goods. Her deceased husband was sitting in the offending truck at the instance of owner of the goods for loading and unloading as well as for safety of the goods. She could not produce any document to show that deceased was travelling in the goods vehicle as authorised representative of the owner of goods or that deceased was earning Rs. 13,000/ per month. She denied the suggestion that deceased was travelling as unauthorised passenger or that he was not earning Rs. 13,000/ per month at the time of accident.
50. During the course of arguments, counsel for petitioners fairly conceded that for want of any cogent and definite evidence being led by Smt. Subh Laxmi & Ors. Vs. Kailash Mandal, Smt. Rekha Devi & Ors. Vs. Kailash Mandal Page 20 of 32 & Smt. Anila Devi & Ors. Vs. Kailash Mandal & Ors.
MACP Nos. 6814/16, 6815/16 & 6812/16, FIR No. 403/16, PS Alipur DOD: 22.09.18 petitioners regarding monthly income of deceased, his income should be considered as per Minimum Wages Act in order to calculate the loss of dependency. He however argued that future prospects should also be awarded to the petitioners as per law.
51. PW2, who is widow of deceased, has admitted during her cross examination that there was no documentary proof to show that deceased was earning Rs. 13,000/ per month at the time of accident. Mere bald testimony in this regard, would not be sufficient to assume the notional income of deceased to be Rs. 13,000/ per month at the time of accident. For want of cogent and definite evidence being led by petitioners with regard to actual monthly income of deceased, his monthly income is being taken as equivalent to that of an unskilled worker under Minimum Wages Act applicable during the relevant period. The Minimum Wages of an unskilled worker as on the date of accident, which is 25.06.16, were Rs. 9048/ per month.
52. The respondents have not disputed the age of deceased as deposed by PW2 during the course of inquiry. They have also not led any evidence in order to controvert the said age of deceased as claimed by the petitioners. Thus, the age of deceased is accepted as 32 years at the time of accident. Hence, the multiplier of 16 would be applicable in view of recent pronouncement made by Constitutional Bench of Apex Court in the case titled as "National Insurance Company Ltd. Vs. Pranay Sethi & Ors."mentioned supra.
53. Considering the fact that deceased is claimed to be self employed and there being no cogent evidence that he was having permanent job, future prospects @ 40% has to be awarded in favour of petitioners in view of recent pronouncement made by Constitutional Bench of Apex Court in the case titled as "National Insurance Company Ltd. Vs. Pranay Sethi & Ors." mentioned supra, as well as in view of recent decision of Hon'ble Delhi High Court in appeal bearing MAC APP No. 798/2011 titled as "Bajaj Allianz General Insurance Company Ltd. Vs. Pooja & Ors" (mentioned supra).
54. Considering the fact that there were five dependents (there being Smt. Subh Laxmi & Ors. Vs. Kailash Mandal, Smt. Rekha Devi & Ors. Vs. Kailash Mandal Page 21 of 32 & Smt. Anila Devi & Ors. Vs. Kailash Mandal & Ors.
MACP Nos. 6814/16, 6815/16 & 6812/16, FIR No. 403/16, PS Alipur DOD: 22.09.18 no cogent evidence that father of deceased was also financially dependent upon him at the time of accident), there has to be deduction of 1/4th as held in the case of Pranay Sethi mentioned supra. The minimum wages of an unskilled worker as on the date of accident, were Rs. 9048/ per month. Thus, the total of loss of dependency would come out to Rs. 18,24,077/ (rounded off) (Rs. 9048 X 3/4 X 140/100 X 12 X 16). Hence, a sum of Rs. 18,24,077/ is awarded under this head in favour of the petitioners.
LOSS OF LOVE & AFFECTION
55. After the celebrated judgment of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors.", mentioned supra, Hon'ble Delhi High Court in appeal titled as "Bajaj Allianz General Insurance Company Ltd. Vs. Pooja & Ors", mentioned supra, has been pleased to observe in para 18 of the judgment that the constitution bench decision in Pranay Sethi (supra) does not recognize any other nonpecuniary head of damages. Hence, no amount of compensation is being awarded under this head.
LOSS OF CONSORTIUM
56. In view of celebrated judgment of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors.", mentioned supra delivered by Constitutional Bench of Hon'ble Apex Court, a sum of Rs. 40,000/ is awarded in favour of petitioner no. 1 Smt Anila Devi (being widow of deceased) towards loss of consortium.
LOSS OF ESTATE & FUNERAL EXPENSES
57. In view of the facts and circumstances of the present case and in view of decision of Hon'ble Apex Court in the case of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors." mentioned supra, a sum of Rs. 15,000/ each is awarded in favour of petitioners on account of loss of estate and funeral expenses.
The total compensation is assessed as under:
1. Loss of dependency Rs. 18,24,077/
2. Loss of Consortium Rs. 40,000/
3. Loss of Estate & Funeral Expenses Rs. 30,000/ Smt. Subh Laxmi & Ors. Vs. Kailash Mandal, Smt. Rekha Devi & Ors. Vs. Kailash Mandal Page 22 of 32 & Smt. Anila Devi & Ors. Vs. Kailash Mandal & Ors.
MACP Nos. 6814/16, 6815/16 & 6812/16, FIR No. 403/16, PS Alipur DOD: 22.09.18
Total Rs. 18,94,077/
Rounded Off to Rs. 18,94,500/
58. Now, the question arises as to which of the respondents is liable to pay the compensation amount as determined herein above. Counsel for insurance company sought to avoid its liability to pay the compensation amount on the ground that all the aforesaid three deceased persons were travelling as unauthorised passengers/gratuitous passengers in offending Truck bearing registration no. HR55Q4029 at the time of accident in question. Hence, there was fundamental breach in the terms and conditions of the insurance policy on the part of insured and insurance company is entitled to be absolved from its liability to pay the compensation amount in these cases. In order to buttress the aforesaid submissions, he heavily relied upon the testimony of R3W1 i.e. Legal Officer of Insurance Company examined during the course of inquiry, as also on the decisions of Hon'ble Apex Court in the matters titled as " National Insurance Co Ltd. Vs. Cholleti Bharatamma", AIR 2008 SC 484, " National Insurance Co Ltd. Vs. Bhukya Tara & Ors.", 2009 (3) T.A.C. 385 (SC), " National Insurance Co Ltd. Vs. Rattani & Ors.", 2009 (1) T.A.C. 420 (SC) and " Manager, National Insurance Co Ltd. Vs. Saju P. Paul & Anr.", 2013 STPL (Web) 8 SC.
59. On the other hand, counsel for claimants vehemently argued that the insurance company is liable to indemnify the insured qua third party risk and at the most, it may be given recovery rights based on the principle of " Pay & Recover". He however, urged that insurance company should not be absolved from its liability to pay the compensation amount in all these cases. In support of said submissions, he relied upon the following judgments:
(a) National Insurance Co Ltd. Vs. Swarn Singh & Ors., 2004 ACJ 1 (SC).
(b) New India Assurance Co Ltd. Vs. Vauki Devi & Ors., MAC APP No. 340/10 decided on 22.02.13 by Hon'ble Delhi High Court.
(c) National Insurance Co Ltd. Vs. Baljeet Kaur & Ors., 2004 ACJ, 428 (SC).
(d) Manuara Khatun & Ors. Vs. Rajesh Kumar Singh & Ors., 2017 ACJ Smt. Subh Laxmi & Ors. Vs. Kailash Mandal, Smt. Rekha Devi & Ors. Vs. Kailash Mandal Page 23 of 32 & Smt. Anila Devi & Ors. Vs. Kailash Mandal & Ors.
MACP Nos. 6814/16, 6815/16 & 6812/16, FIR No. 403/16, PS Alipur DOD: 22.09.18 1031 (SC).
(e) Bhom Singh & Anr. Vs. Reliance General Insurance Co Ltd. & Anr., MAC APP No. 81/18 decided on 27.07.18 by Hon'ble Delhi High Court.
(f) Shivaraj Vs. Rajendra & Anr., Civil Appeal Nos. 82788279 of 2018 decided on 05.09.2018 by Hon'ble Supreme Court of India.
(g) Singh Ram Vs. Nirmala & Ors., Civil Appeal No. 2103 of 2018 decided on 06.03.2018 by Hon'ble Supreme Court of India.
60. In order to appreciate the aforesaid contentions raised on behalf of both the sides, it would be appropriate to discuss the testimonies of witnesses examined on the aforesaid aspect during the course of inquiry. Before referring to the testimony of R3W1 who is the Legal Officer of Insurance Co, it may be noted here that all the four witnesses examined by claimants, have admitted during their respective cross examination on behalf of insurance company that all the three deceased persons were sitting in the rear portion of Truck bearing registration no. HR55Q4029 at the time of accident in question. The only dispute which cropped up during the course of inquiry is as regards the status of deceased persons visavis the offending vehicle, inasmuch as the claimants claimed that deceased were sitting in the vehicle as authorised representatives of the owner of the goods i.e. cement bags for loading, unloading and safety of those goods, whereas insurance company is claiming that they were sitting as unauthorised passengers having nothing to do with the owner of the goods.
61. Now, it would be appropriate to discuss the testimony of R3W1, who has deposed in his evidence by way of affidavit ( Ex. R3W1/A) that deceased persons were travelling in rear portion of the goods vehicle without having any goods at the time of accident and thus, they were gratuitous /unauthorised passengers in the offending vehicle i.e. Truck bearing registration no. HR55Q4029. Hence, the insurance company is not liable to pay any compensation amount as there was willful breach and violation of terms and conditions of insurance policy by the insured i.e. respondent no. 2. He also deposed that the aforesaid truck was insured with his company in the Smt. Subh Laxmi & Ors. Vs. Kailash Mandal, Smt. Rekha Devi & Ors. Vs. Kailash Mandal Page 24 of 32 & Smt. Anila Devi & Ors. Vs. Kailash Mandal & Ors.
MACP Nos. 6814/16, 6815/16 & 6812/16, FIR No. 403/16, PS Alipur DOD: 22.09.18 name of respondent no. 2 for the period from 23.04.16 to 22.04.17 and despite service of notice U/o 12 rule 8 CPC served upon driver and registered owner through their counsel, they failed to produce original insurance policy, DL of driver, Permit and Fitness of the offending truck. He relied upon copy of insurance policy as Ex. R3W1/1, office copy of notice U/o 12 rule 8 CPC as Ex. R3W1/2 and postal receipts regarding dispatch of said notice as Ex. R3W1/3 and Ex. R3W1/4 respectively. During his cross examination on behalf of driver and registered owner, he admitted that insurance company had dispatched only copy of insurance policy Ex. R3W1/1 to the insured at the time of insuring the offending truck. However, he improved his version by claiming subsequently that copy of terms and conditions of insurance policy was also sent alongwith insurance policy. He denied the suggestion that insurance company is liable to pay the compensation amount, being duty bound to indemnify the insured by virtue of contractual obligation.
62. At this juncture, it may be noted here that by virtue of Motor Vehicles (Amendment) Act 1994, Section 147 of the said Act came to be amended. The expression "including owner of the goods or his authorized representative carried in the vehicle" was added in Section 147(1)(b)(i) of M.V. Act. In view of the said amendment carried out in the year 1994, the risk of owner of the goods or his authorised representative carried in the vehicle, is also covered.
63. As already noted above, the claimants have put forth their stand that deceased were travelling as authorised representatives of the owner of the goods in the offending truck at the time of accident. Although, no cogent or definite evidence has been led by them to prove this assertion as a fact during the course of inquiry but even if the said plea is presumed to have been proved by them for the sake of arguments, it becomes irrelevant in the back drop of the fact that it is an undisputed fact on record that all the three deceased persons were sitting in the rear portion of Truck bearing registration no. HR55Q4029 at the time of accident. Hon'ble Apex Court has categorically held in the case of " National Insurance Co Ltd. Vs. Cholleti Smt. Subh Laxmi & Ors. Vs. Kailash Mandal, Smt. Rekha Devi & Ors. Vs. Kailash Mandal Page 25 of 32 & Smt. Anila Devi & Ors. Vs. Kailash Mandal & Ors.
MACP Nos. 6814/16, 6815/16 & 6812/16, FIR No. 403/16, PS Alipur DOD: 22.09.18 Bharatamma", (mentioned supra) that even owner of the goods or the authorised representative of the owner of goods, are required to sit in the cabin of the insured vehicle and not with the goods in the rear portion, in order to claim protection U/s 147 of the M.V Act 1988. Considering the fact that all the three deceased persons were undisputedly not travelling in the cabin of the vehicle, it is concluded that they gratuitous passengers in the insured vehicle i.e. Truck bearing registration no. HR55Q4029.
64. This brings me down to the next question as to whether in case of gratuitous passengers, insurance company should be absolved from its liability to pay the compensation amount or it should be granted recovery rights. In the above noted decisions relied by counsel for insurance company, it has been held that insurance company cannot be saddled with the liability to pay the compensation amount in such a situation. However, it may be noted here that the decisions cited by counsel for insurance company have been delivered by two Judges Bench of Hon'ble Apex Court. The last cited decision is shown to have been decided on 03.01.13. However, counsel for claimants has relied upon decisions, two of which i.e. " National Insurance Co Ltd Vs. Baljeet Kaur & Ors." and " Singh Ram Vs, Nirmala & Ors." (mentioned supra), have been delivered by three Judges Bench of Hon'ble Apex Court. In the case of Baljeet Kaur (supra), deceased was found to be travelling as passenger in goods vehicle and it was held in para 21 of the judgment that insurance company should satisfy the awarded amount in favour of the claimant and to recover the same from the owner of the vehicle. Similar view has been taken by two Judges Bench of Hon'ble Apex Court in the cases Manuara Khatun & Ors. Vs. Rajesh Kumar Singh & Ors., 2017 ACJ 1031 (SC) & Shivaraj Vs. Rajendra & Anr., Civil Appeal Nos. 82788279 of 2018 decided on 05.09.2018 by Hon'ble Supreme Court of India as also by Hon'ble Delhi High Court in recent decision in the case of "Bhom Singh & Anr. Vs. Reliance General Insurance Co Ltd. & Anr.", MAC APP No. 81/18 decided on 27.07.18 by Hon'ble Delhi High Court.
Smt. Subh Laxmi & Ors. Vs. Kailash Mandal, Smt. Rekha Devi & Ors. Vs. Kailash Mandal Page 26 of 32& Smt. Anila Devi & Ors. Vs. Kailash Mandal & Ors.
MACP Nos. 6814/16, 6815/16 & 6812/16, FIR No. 403/16, PS Alipur DOD: 22.09.18
65. While applying the dictum of law laid down by Hon'ble Apex Court as well as by Hon'ble Delhi High Court in the above referred decisions to the facts of the present case, it is held that the insurance company is liable to satisfy the third party risk by paying the compensation amount at the first instance and thereafter, to recover the said amount from the insured. Issue no. 2 is decided accordingly in all these cases.
ISSUE NO. 3 RELIEF
66. In view of my findings on issues no. 1 to 2, I award a sum of Rs. 17,80,500/(including interim award amount if any) in MAC Petition No. 6814/16, a sum of Rs. 20,08,500/ in MAC Petition No. 6815/16 and a sum of Rs. 18,94,500/ in MAC Petition No. 6812/16 alongwith interest @ 9% per annum w.e.f. date of filing of petitions i.e. 22.09.2016 in favour of petitioner(s) and against the respondents jointly and severally. (Reliance placed on judgment "Oriental Insurance Company Ltd. Vs. Sangeeta Devi & Ors bearing MAC. APP. 165/2011 decided on 22.02.2016). However, it would be open to the insurance company to recover the awarded amount from the registered owner/R2 after payment of compensation amount, in accordance with law. Issue no. 3 is decided accordingly in all these cases.
APPORTIONMENT
67. Statements of petitioners in MAC Petition Numbers 6814/16, 6815/16 & 6812/16 in terms of Clause 27 MCTAP were recorded on 06.09.18. Having regard to the facts and circumstances of the case and in view of their statements, it is hereby ordered that out of total compensation amount in MAC Petition No. 6814/16, the petitioner no. 1 Smt. Shubh Laxmi Devi shall be entitled to share amount of Rs. 7,80,500/ (Rs. Seven Lacs Eighty Thousand & Five Hundered Only) alongwith proportionate interest, the petitioner no. 2 namely Sh Deepak Kumar shall be entitled to share amount of Rs. 2,50,000/ (Rs. Two Lacs & Fifty Thousand Only) alongwith proportionate interest, the petitioner no. 3 namely Ms. Switi Kumari shall be entitled to share amount of Rs. 2,50,000/ (Rs. Two Lacs & Fifty Thousand Only) alongwith proportionate Smt. Subh Laxmi & Ors. Vs. Kailash Mandal, Smt. Rekha Devi & Ors. Vs. Kailash Mandal Page 27 of 32 & Smt. Anila Devi & Ors. Vs. Kailash Mandal & Ors.
MACP Nos. 6814/16, 6815/16 & 6812/16, FIR No. 403/16, PS Alipur DOD: 22.09.18 interest, the petitioner no. 4 namely Shyam Kumar shall be entitled to share amount of Rs. 2,50,000/ (Rs. Two Lacs & Fifty Thousand Only) alongwith proportionate interest, the petitioner no. 5 namely Sonu Kumar shall be entitled to share amount of Rs. 2,50,000/ (Rs. Two Lacs & Fifty Thousand Only) alongwith proportionate interest.
68. Out of share amount of petitioner no. 1, a sum of Rs. 1,00,000/ (Rupees One Lakh Only) shall be immediately released to her through her saving bank account no. 300502010019340 with Union Bank of India Jamalpur Gogri Branch, having IFSC Code No. UBIN0530051 and remaining amount alongwith interest amount are directed to be kept in the form of FDRs in the multiples of Rs. 15,000/ each for a period of 1 month,2 months, 3 months and so on and so forth, having cumulative interest.
69. The entire share amount of petitioners no. 2 to 5 namely Sh Deepak Kumar, Ms. Switi Kumari, Sh. Shyam Kumar and Sh Sonu Kumar shall be kept in the form of FDRs till they attain the age of majority. However, monthly interest is allowed to be withdrawn by them through their mother/natural guardian namely Ms. Subh Laxmi Devi, to be used for their welfare and upbringment.
70. Having regard to the facts and circumstances of the case and in view of their statements, it is hereby ordered that out of total compensation amount in MAC Petition No. 6815/16, the petitioner no. 1 Smt. Rekha Devi shall be entitled to share amount of Rs.9,00,000/ (Rs Nine Lacs Only) alongwith proportionate interest, the petitioner no. 2 namely Ms. Archana Kumari shall be entitled to share amount of Rs. 2,50,000/ (Rs. Two Lacs & Fifty Thousand Only) alongwith proportionate interest, the petitioner no. 3 namely Sh Piyush Kumar shall be entitled to share amount of Rs. 2,50,000/ (Rs. Two Lacs & Fifty Thousand Only) alongwith proportionate interest, the petitioner no. 4 namely Ms. Sunita shall be entitled to share amount of Rs.
Smt. Subh Laxmi & Ors. Vs. Kailash Mandal, Smt. Rekha Devi & Ors. Vs. Kailash Mandal Page 28 of 32& Smt. Anila Devi & Ors. Vs. Kailash Mandal & Ors.
MACP Nos. 6814/16, 6815/16 & 6812/16, FIR No. 403/16, PS Alipur DOD: 22.09.18 2,50,000/ (Rs. Two Lacs & Fifty Thousand Only) alongwith proportionate interest, the petitioner no. 5 namely Sh Vishal Kumar shall be entitled to share amount of Rs. 2,50,000/ (Rs. Two Lacs & Fifty Thousand Only) alongwith proportionate interest and the petitioner no. 6 namely Sh Guru Dev shall be entitled to share amount of Rs. 1,08,500/ (Rs. One Lakh Eight Thousand & Five Hundred Only) alongwith proportionate interest.
71. Out of share amount of petitioner no. 1, a sum of Rs. 1,00,000/ (Rupees One Lakh Only) shall be immediately released to her through her saving bank account no. 300502011025051 with Union Bank of India Jamalpur Gogri Branch, having IFSC Code No. UBIN0530051 and remaining amount alongwith interest amount are directed to be kept in the form of FDRs in the multiples of Rs. 15,000/ each for a period of 1 month,2 months, 3 months and so on and so forth, having cumulative interest.
72. The entire share amount of petitioners no. 2 to 5 namely Ms. Archana Kumari, Sh. Piyush Kumar, Ms. Sunita and Sh Vishal Kumar shall be kept in the form of FDRs till he attains the age of majority. However, monthly interest is allowed to be withdrawn by him through her mother/natural guardian namely Ms. Rekha Devi, to be used for his welfare and upbringment.
73. Out of share amount of petitioner no. 6, a sum of Rs. 25,000/ (Rupees Twenty Five Thousand Only) shall be immediately released to him through his saving bank account no. 300502011024965 with Union Bank of India Jamalpur Gogri Branch, having IFSC Code No. UBIN0530051 and remaining amount alongwith interest amount are directed to be kept in the form of FDRs in the multiples of Rs. 5,000/ each for a period of 1 month,2 months, 3 months and so on and so forth, having cumulative interest.
74. Having regard to the facts and circumstances of the case and in view of their statements, it is hereby ordered that out of total compensation Smt. Subh Laxmi & Ors. Vs. Kailash Mandal, Smt. Rekha Devi & Ors. Vs. Kailash Mandal Page 29 of 32 & Smt. Anila Devi & Ors. Vs. Kailash Mandal & Ors.
MACP Nos. 6814/16, 6815/16 & 6812/16, FIR No. 403/16, PS Alipur DOD: 22.09.18 amount in MAC Petition No. 6812/16, the petitioner no. 1 Smt. Anila Devi shall be entitled to share amount of Rs. 8,50,000/ (Rs. Eight Lacs & Fifty Thousand Only) alongwith proportionate interest, the petitioner no. 2 namely Sh Gaurav shall be entitled to share amount of Rs. 3,00,000/ (Rs. Three Lacs Only) alongwith proportionate interest, the petitioner no. 3 namely Sh Saurabh shall be entitled to share amount of Rs. 3,00,000/ (Rs. Three Lacs Only) alongwith proportionate interest, the petitioner no. 4 namely Khushi Kumari shall be entitled to share amount of Rs. 3,00,000/ (Rs. Three Lacs Only) alongwith proportionate interest and the petitioner no. 6 namely Smt. Jaya Devi shall be entitled to share amount of Rs. 1,44,500/ (Rs. One Lakh Forty Four Thousand & Five Hundred Only) alongwith proportionate interest.
75. Out of share amount of petitioner no. 1, a sum of Rs. 1,00,000/ (Rupees One Lakh Only) shall be immediately released to her through her saving bank account no. 300502011025051 with Union Bank of India Jamalpur Gogri Branch, having IFSC Code No. UBIN0530051 and remaining amount alongwith interest amount are directed to be kept in the form of FDRs in the multiples of Rs. 15,000/ each for a period of 1 month,2 months, 3 months and so on and so forth, having cumulative interest.
76. The entire share amount of petitioners no. 2 to 4 namely Sh. Gaurav, Sh Saurabh and Khushi Kumari shall be kept in the form of FDRs till they attain the age of majority. However, monthly interest is allowed to be withdrawn by them through their mother/natural guardian namely Ms. Anila Devi, to be used for their welfare and upbringment.
77. Out of share amount of petitioner no. 6, a sum of Rs. 25,000/ (Rupees Twenty Five Thousand Only) shall be immediately released to her through her saving bank account no. 300502011024953 with Union Bank of India Jamalpur Gogri Branch, having IFSC Code No. UBIN0530051 and Smt. Subh Laxmi & Ors. Vs. Kailash Mandal, Smt. Rekha Devi & Ors. Vs. Kailash Mandal Page 30 of 32 & Smt. Anila Devi & Ors. Vs. Kailash Mandal & Ors.
MACP Nos. 6814/16, 6815/16 & 6812/16, FIR No. 403/16, PS Alipur DOD: 22.09.18 remaining amount alongwith interest amount are directed to be kept in the form of FDRs in the multiples of Rs. 5000/ each for a period of 1 month,2 months, 3 months and so on and so forth, having cumulative interest.
78. All the FDRs to be prepared as per aforesaid directions, shall be subject to the following conditions:
(i) Original fixed deposit receipts be retained by the bank in safe custody. However, a passbook of the FDRs alongwith photocopies of the FDRs be given to the claimants/petitioners. At the time of maturity, the fixed deposit amount shall be automatically credited in the savings bank accounts of the Claimants/petitioners.
(ii) No cheque book/Debit Card be issued to the claimants/petitioners without permission of the Court.
(iii) No loan, advance or withdrawal be allowed on the fixed deposits without permission of the Court.
(iv) The Bank shall not permit any joint name(s) to be added in the savings bank accounts or fixed deposit account of the victims.
(v) Half yearly statement of account be filed by the Bank before the Tribunal.
79. During the course of hearing of final arguments, the claimants had submitted that they are entitled to exemption from deduction of TDS as their annual income do not exceed from the taxable limit prescribed under the law. They have also furnished Form Nos. 15G on record.
80. Respondent no. 3, being insurer of offending vehicle, is directed to deposit the awarded amount with SBI, Rohini Courts branch within 30 days as per above order, failing which insurance company shall be liable to pay interest @ 12% p.a for the period of delay. Concerned Manager, SBI, Rohini Court Branch is directed to transfer the respective share amounts as mentioned above in the aforesaid saving bank accounts of the claimants 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 claimants approach the bank for disbursement so that the award amount starts earning interest from the date of clearance of the cheques. Order be given dasti alongwith Form Nos. 15G in original of all the claimants (on retaining photocopies thereof on record) to counsel for insurance company. Copy of this award alongwith one photograph each, specimen signatures, copies of Smt. Subh Laxmi & Ors. Vs. Kailash Mandal, Smt. Rekha Devi & Ors. Vs. Kailash Mandal Page 31 of 32 & Smt. Anila Devi & Ors. Vs. Kailash Mandal & Ors.
MACP Nos. 6814/16, 6815/16 & 6812/16, FIR No. 403/16, PS Alipur DOD: 22.09.18 bank passbooks and copies of residence proof of the petitioners, be sent to Nodal Officer of SBI, Rohini Court, Branch, Delhi for information and necessary compliance. Form Nos. IVA and Form Nos. V in terms of MCTAP are annexed herewith as AnnexureA. Copy of order be also sent to concerned M.M and DLSA as per clause 31 and 32 of MCTAP. Signed copies of this Award be placed on the judicial record of MAC Petition No. 6812/16 and 6815/1,6 as per the rules.
Announced in the open
Court on 22.09.2018 (VIDYA PRAKASH)
Judge MACT2 (North)
Rohini Courts, Delhi
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& Smt. Anila Devi & Ors. Vs. Kailash Mandal & Ors.