Delhi District Court
Smt. Rekha vs Sh. Khurshid on 3 May, 2018
MACP No. 4272/16; FIR No. 05/11; PS.Kundli Sonepat DOD: 03.05.2018
IN THE COURT OF SHRI VIDYA PRAKASH, PRESIDING OFFICER,
MOTOR ACCIDENT CLAIMS TRIBUNAL, ROHINI COURTS, DELHI
MAC Petition No. 4272/16 (Old MACP No. 129/12)
Smt. Rekha,
W/o Sh. Harvir Malik,
R/o H.No. B38,
Yadav Nagar,
Sameypur, Delhi.
..........Petitioner
VERSUS
1. Sh. Khurshid,
S/o Sh. Ramju,
R/o. Village Leharwari, Tehsil Punhana,
District Mewat, Haryana(Driver)
2. Sh. Harender,
S/o Sh. Mahender Singh,
R/o 120, Cross Road,
Sant Nagar, Burari,
Delhi (Registered Owner)
3. Future Generali India Insurance Company Ltd.
M10, Deepsons Building, NDSE Part II,
2nd Floor, Delhi (Insurance Co.)
............Respondents
Date of Institution : 09.04.2012
Date of Arguments : 18.04.2018
Date of Award : 03.05.2018
APPEARANCES:
Sh. Ram Kumar Prabhakar, Adv for petitioner.
Respondents no. 1 & 2 are exparte.
Sh. Shailendra Rai, Adv for respondent no. 3.
Petition under Section 166 and 140 of M.V. Act, 1988 for grant of compensation AWARD
1. The petitioner has sought compensation to the tune of Rs. 15,00,000/ for the injuries sustained by her in Motor Vehicular Accident which occurred on 09.01.2011 at about 8:00 am at HSIDC Mod, Kundli, Smt. Rekha Vs. Khurshid & Ors. Page 1 of 18 MACP No. 4272/16; FIR No. 05/11; PS.Kundli Sonepat DOD: 03.05.2018 Sonepat, Haryana, involving Truck bearing registration no. HR55D5451 (alleged offending vehicle) being driven by respondent no. 1 in rash and negligent manner.
2. It is averred in the claim petition that on 09.01.2011, the petitioner alongwith her family members, were going from Village Majhroli to their home at Sameypur, Delhi by Santro Car bearing registration no. DL8CAN2728. At about 8:00 am, when they reached at HSIDC Mod, Kundli, Sonepat, Haryana, one Truck bearing registration no. HR55D5451, which was being driven by its driver in rash and negligent manner, came and hit against the Santro Car. As a result thereof, she alongwith other persons received grievous injuries. She was admitted in M.G. Hospital, Punjabi Bagh, Delhi. It is further averred that the petitioner was doing private job and was earning Rs. 8,000/ per month at the time of accident. The said vehicle i.e. Truck was found to be owned by respondent no. 2 and it was insured with Future Generali India Insurance Company Ltd /respondent no. 3 during the period in question.
3. Before proceeding further, it may be noted that the present claim petition was dismissed for non appearance vide order dated 19.01.2013 passed by my Ld. Predecessor. Thereafter, the petitioner had moved an application u/o 9 Rule 9 CPC for restoration of claim petition, which was allowed by my Ld. Predecessor vide order dated 08.05.2013.
4. Respondent no. 1 although put his appearance before Claims Tribunal through his counsel on 13.09.12 but he failed to appear and to contest the claim petition despite grant of sufficient opportunities and consequently, he was proceeded exparte on 14.05.2013. However, the respondent no. 2 did not appear before the Claims Tribunal on any date and consequently, he was also proceeded exparte on 14.05.2013.
Smt. Rekha Vs. Khurshid & Ors. Page 2 of 18MACP No. 4272/16; FIR No. 05/11; PS.Kundli Sonepat DOD: 03.05.2018
5. In its WS/Reply, the insurance company/respondent no.3 has raised preliminary objection that the petition is bad for nonjoinder of owner and insurer of car no. DL8CAN2728. It has raised statutory defence as provided in Section 149(2) M.V. Act. It has claimed that the alleged accident was caused due to sole negligence of the driver of the car and hence, it is not liable to pay compensation amount to the petitioner. On merits, the averments made in the claim petition have been simply denied for want of knowledge and prayer has been made to dismiss the claim petition.
6. From pleadings of the parties, the following issues were framed by my Ld Predecessor vide order dated 14.05.2013:
1. Whether the injured Smt. Rekha wife of Sh. Harvir Malik received grievous injuries in the road accident on 09.1.2011 at about 8:00 am at HSIDC Mor, Kundli, PS. Kundli, Sonepat, Haryana withint the jurisdiction of PS. Kundli due to rash and negligent driving of the vehicle bearing no. HR55D5451 by its driver/respondent no. 1?OPP.
2. Whether the petitioner/injured is entitled for any compensation, if so, to what extent and from which respondents?OPP.
3. Relief.
7. In support of her claim, the petitioner has examined two witnesses i.e. herself as PW1 and PW2 Dr. Ashutosh Gupta. PE was closed on 15.02.2017 through her counsel. On the other hand, no evidence was adduced by R1 & R2, both being already exparte. Respondent no. 3/insurance company has, however, examined only one witness i.e. R3W1 Sh. Amit Yadav, Senior Executive, Future Generali India Insurance Company Limited and closed its RE through its counsel on 31.08.17.
8. I have already heard the arguments addressed by ld counsels for the parties. I have also gone through the record. Both the sides were Smt. Rekha Vs. Khurshid & Ors. Page 3 of 18 MACP No. 4272/16; FIR No. 05/11; PS.Kundli Sonepat DOD: 03.05.2018 directed to submit their respective submissions in Form IV B vide order dated 18.04.2018 but they have not submitted the same on record till date. My findings on the issues are as under: ISSUE NO. 1.
9. For the purpose of this issue, the testimony of PW1 Smt. Rekha (injured herself) is relevant. In her evidence by way of affidavit(Ex. PW1/A), she has deposed on the lines of averments made in the claim petition. She deposed that on 09.01.2011, she alongwith her family members, were going from Village Majhroli to their home at Sameypur, Delhi by Santro Car bearing registration no. DL8CAN2728. At about 8:00 am, when they reached at HSIDC Mod, Kundli, Sonepat, Haryana, one Truck bearing registration no. HR55D5451, which was being driven by its driver in rash and negligent manner, came and hit against the Santro Car. As a result thereof, she alongwith other persons had received grievous injuries. She was admitted in M.G. Hospital, Punjabi Bagh, Delhi. She has relied upon the following documents: S.No. Description of documents Remarks
1. Certified copies of criminal case Ex. PW1/1(colly) record
2. Discharge Summary of Max Ex. PW1/2(colly) Hospital
3. Original Medical Bills Ex. PW1/3(colly) 4. Future Estimate Ex. PW1/4
5. Treating Doctor's Prescription Ex. PW1/5
6. Copy of her voter I card Ex. PW1/6
10. During her cross examination on behalf of insurance company, she deposed that on the date of accident, she was coming from Machroli and was going towards Sameypur Badli. She was travelling in Santro Car bearing no. DL8CAN2827. She further deposed that the number of the offending vehicle was HR55D5451. The Santro Car collided with the offending vehicle Smt. Rekha Vs. Khurshid & Ors. Page 4 of 18 MACP No. 4272/16; FIR No. 05/11; PS.Kundli Sonepat DOD: 03.05.2018 from the front side. She deposed that her son Sh. Manoj Malik was driving the Santro Car and her son was having DL, however the same was not filed on record. The offending vehicle suddenly came in front of their car. There was a turn at the place of accident and the offending vehicle came from the wrong side. She deposed that she did not remember whether the site plan was prepared in her presence or not. She denied the suggestion that their car was at high speed or that the accident occurred due to their fault. Respondents no. 1 & 2 did not crossexamine this witness being already exparte.
11. It is evident from the testimony of PW1 that the respondents, more particularly insurance company, could not impeach her testimony through litmus test of crossexamination and said witness is found to have successfully withstood the test of crossexamination. Even otherwise, PW1 herself is the injured having sustained injuries due to the accident in question. There is no reason as to why she would depose falsely against respondents no.1 & 2. This is more so when the respondents have not led any evidence to controvert the case of petitioner as proved by her during the course of inquiry.
12. It is pertinent to note that the respondent no.1/driver of aforesaid Truck, 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 driving of truck bearing no. HR55D5451 by him.
13. Moreover, it is an undisputed fact that FIR no. 5/11 u/s 279/337 IPC was registered at PS. Kundli with regard to accident in question. Copy of said FIR (which is part of criminal case record Ex. PW1/1 colly), would show that same was registered on the basis of statement of Sh. Manoj Malik on 09.01.2011 i.e. on the day of accident itself. Thus, FIR in question was Smt. Rekha Vs. Khurshid & Ors. Page 5 of 18 MACP No. 4272/16; FIR No. 05/11; PS.Kundli Sonepat DOD: 03.05.2018 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 offending vehicle in this case. The contents of said FIR would show that the complainant Sh. Manoj Malik has disclosed the same sequence of facts leading to the accident, as deposed by PW1 during the course of inquiry.
14. Apart from above, copy of MLC (which is part of criminal case record Ex PW1/1 colly) of injured prepared at M.G.S. Hospital, Punjabi Bagh, Delhi shows that she had been removed to said hospital on 09.01.2011 at 9.30 AM with alleged history of RTA. On her local examination, she was found to have sustained multiple injuries as mentioned therein. The said injuries are consistent with the injuries which are sustained in motor vehicular accident. Again, there is no challenge to the said document from the side of respondents including insurance company.
15. Not only this, the respondent no. 1 namely Khurshid (accused in State case) has been charge sheeted (which is part of criminal case record Ex. PW1/1 colly) for offences punishable U/s 279/337/338 IPC by the investigating agency after arriving at the conclusion on the basis of investigation carried out by it that the accident in question had occurred due to rash and negligent driving of offending Truck No. HR55D5451 by him. Same would also point out towards the rash and negligent driving of offending vehicle by respondent no. 1.
16. Furthermore, it is pertinent to note that the aforesaid offending vehicle is shown to have been seized from the place of accident itself on the date of accident i.e. 09.01.2011, as per copy of seizure memo (which is part of criminal case record Ex. PW1/1 colly).
Smt. Rekha Vs. Khurshid & Ors. Page 6 of 18MACP No. 4272/16; FIR No. 05/11; PS.Kundli Sonepat DOD: 03.05.2018
17. In view of the aforesaid discussion and the evidence which has come on record, it is held that the petitioner has been able to prove on the basis of pre ponderence of probabilities that she had sustained grievous injuries in road accident which took place on 09.01.2011 at about 8.00 AM at HSIDC Mor, Kundli, Sonepat, Haryana, due to rash and negligent driving of Truck bearing no. HR55D5451 by the respondent no. 1. Thus, issue no. 1 is decided in favour of petitioner and against the respondents.
ISSUE NO. 2.
18. 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
19. PW1 Smt. Rekha i.e. injured herself, has deposed in her evidence by way of affidavit(Ex. PW1/A) that after the accident, she was firstly admitted in M.G.S. Hospital, Punjabi Bagh, Delhi on 09.01.2011. Thereafter, on the same day, she was got admitted in Max Health Care, Pitampura, Delhi, wherefrom she was discharged on 18.01.2011. She further deposed that she also got herself treated from Dr. Ashish Jain, Shalimar Bagh, Delhi. She also deposed that she had received grievous injuries i.e. Burst # D11 D12 with Paraplegia". She deposed to have spent about Rs. 5,00,000/ on her medical treatment. During her crossexamination on behalf of respondent no. 3, she denied the suggestion that she had not spent a sum of Rs. 5 lacs on her treatment as mentioned in her affidavit. She has relied upon medical bills to the tune of Rs. 1,23,945/, which are exhibited as Ex. PW1/3 (colly), the authenticity and genuineness of which has not been disputed by the respondents during the course of inquiry.
Smt. Rekha Vs. Khurshid & Ors. Page 7 of 18MACP No. 4272/16; FIR No. 05/11; PS.Kundli Sonepat DOD: 03.05.2018
20. It has been argued on behalf of petitioner that the petitioner would also require medicines costing Rs. 8,000/ to Rs. 10,000/ per month life long including routine checkups. For the said purpose, the petitioner has relied on estimate issued by Dr. Ashish Jain (Ex. PW1/4), which recites that she would require medicines costing approx Rs.8,000/ to Rs. 10,000/ per month life long including routine checkups. Accordingly, a sum of Rs. Rs. 1,23,945/ is awarded to her under this head.
LOSS OF INCOME
21. Injured namely Smt. Rekha (PW1) has categorically deposed in her evidence by way of affidavit (Ex PW1/A) that she was aged about 46 years; she was doing private service at Cosmetic Shop and was getting Rs. 8,000/ per month. She further deposed that due to the injuries sustained by her, she could not work.
22. It is pertinent to note that the petitioner has relied upon her medical treatment record and the medical bills in order to prove the nature of injuries sustained by her and the period till which her treatment continued. The said documents are Ex. PW1/1 to Ex. PW1/3. The discharge summary(Ex. PW1/2) of Max Hospital in respect of petitioner/injured would reveal that she remained admitted in the said hospital from 09.01.2011 till 18.01.2011. Said treatment record would also show that the injured was initially removed to M.G.S Hospital, Punjabi Bagh, Delhi, whereafter she received medical treatment from Max Hospital, Pitampura, Delhi. She is shown to have sustained fracture L1 Vertebra with paraplegia. Said part of her testimony has gone unchallanged and uncontroverted from the side of respondents.
23. Apart from the aforesaid record produced by PW1 i.e. the petitioner, she has failed to file any other medical treatment record in order to show the exact period upto which she had received the medical treatment.
Smt. Rekha Vs. Khurshid & Ors. Page 8 of 18MACP No. 4272/16; FIR No. 05/11; PS.Kundli Sonepat DOD: 03.05.2018 Nevertheless, it can not be overlooked that the petitioner had sustained fracture L1 Vertebra with paraplegia due to the accident. Not only this, she is also shown to have sustained permanent physical impairment of 84% in relation to both lower limbs, which fact is duly established in view of ocular testimony of PW2 Dr. Ashutosh Gupta and Disability Certificate (Ex. PW2/1). Considering the nature of injuries sustained by the petitioner as established from her treatment record and in view of ocular testimonies of PW1 & PW2, it is presumed that she would not have been able to work at all atleast for a period of one year or so.
24. During the course of arguments, counsel for injured fairly conceded that for want of any cogent evidence with regard to exact avocation or monthly income of injured/petitioner, her income has to be assessed as per Minimum Wages Act applicable during the relevant period. It may be noted here that the petitioner has failed to file any document concerning her educational qualification. Thus, her loss of income has to be assessed while taking the income of NonMatriculate under Minimum Wages Act applicable during the period in question [Reliance placed on "Royal Sundaram Alliance Insurance Company Limited Vs. Manmeet Singh & Ors.", reported at 2012 ACJ 721 (Delhi)].
25. The minimum wages of NonMatriculate were Rs. 5,850/ per month as on the date of accident which is 09.01.2011. The minimum wages of NonMatriculate were revised to Rs. 6,734/pm w.e.f. 01.02.2011. The accident in question had occurred on 09.01.2011 i.e. just 22 days before the date from which minimum wages were revised by the government. In these facts and circumstances, I am inclined to take the minimum wages at the rate of Rs. 6,734/ per month in order to calculate loss of income under this head. (Reliance placed on unreported decision in the matter titled as "THE ORIENTAL INSURANCE CO.LTD. Vs. CHHOTEY LAL & ORS. ", in MAC. APP. 1074/2016 decided on 15.05.2017 by Hon'ble Delhi High Court.) Smt. Rekha Vs. Khurshid & Ors. Page 9 of 18 MACP No. 4272/16; FIR No. 05/11; PS.Kundli Sonepat DOD: 03.05.2018 Thus, a sum of Rs. 80,808/ (Rs. 6,734/ x 12) is awarded in favour of petitioner under this head.
PAIN AND SUFFERING
26. 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 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".
27. Injured herself as PW1 has deposed in her evidence by way of affidavit(Ex PW1/A) that she had suffered fracture L1 Vertebra with paraplegia due to the accident in question. She has sustained permanent disability to the extent of 84% in relation to her both lower limbs.
28. Apart from the fact that the relevant portion of her testimony in this regard, has gone unchallanged and unrebutted from the side of respondents, her ocular testimony is duly corroborated by her medical treatment record [Ex. PW1/2] filed by her. Thus, she 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, I hereby award a sum of Rs. 1,00,000/ towards pain and sufferings to the petitioner. (Reliance placed on "Oriental Insurance Co Ltd Vs. Manjeet Singh & Ors", bearing MAC.APP. No. 359/2009 decided on 10.04.2017 by Hon'ble Delhi High Court).
Smt. Rekha Vs. Khurshid & Ors. Page 10 of 18MACP No. 4272/16; FIR No. 05/11; PS.Kundli Sonepat DOD: 03.05.2018 LOSS OF GENERAL AMENITIES & ENJOYMENT OF LIFE
29. As already mentioned above, there is sufficient evidence on record to establish that the petitioner had suffered fracture L1 Vertebra with paraplegia due to the accident in question. She has also sustained permanent disability of 84% in relation to her both lower limbs, which is duly established from the testimony of PW2 Dr. Ashutosh Gupta, Specialist Orthopedic, SRHC Hospital and Disability Certificate (Ex. PW2/1) issued by SRHC Hospital. Thus, she would not be able to enjoy general amenities of life after the accident in question, during rest of her life and her quality of life has been definitely affected. In view of the nature of injuries including permanent disability suffered by her and her continued treatment for considerable period, I award a notional sum of Rs. 1,00,000/ towards loss of amenities of life to the petitioner. (Reliance placed on "Oriental Insurance Co Ltd Vs. Manjeet Singh & Ors", bearing MAC.APP. No. 359/2009 decided on 10.04.2017 by Hon'ble Delhi High Court).
CONVEYANCE, SPECIAL DIET & ATTENDANT CHARGES
30. Although, the petitioner/injured as PW1 has deposed that she had spent a sum of Rs. 1,00,000/ on special diet, Rs. 30,000/ on conveyance and has been incurring a sum of Rs. 8,000/ to Rs. 10,000/ per month whole of her life for the medicines. She further deposed that she is paying a sum of Rs. 5,000/ per month for the services of attendant but she has failed to lead any cogent evidence on record in this regard. At the same time, it cannot be overlooked that the petitioner had sustained grievous injuries due to the accident in question. Thus, she would have taken special rich protein diet for her speedy recovery and would have also incurred considerable amount towards conveyance charges while commuting to the concerned hospital as OPD patient for her regular check up & follow up during the period of her medical treatment. In these facts and circumstances, I hereby award a notional Smt. Rekha Vs. Khurshid & Ors. Page 11 of 18 MACP No. 4272/16; FIR No. 05/11; PS.Kundli Sonepat DOD: 03.05.2018 sum of Rs. 5,000/ for conveyance charges and a sum of Rs. 20,000/ for special diet to the petitioner.
31. As regards the attendant charges, it may be noted that the case of petitioner is that of para paresis and thus, she would definitely require the help of one attendant throughout her life in order to do her routine day to day activities. PW2 Dr. Ashutosh Gupta had categorically testified during the course of inquiry that the injured suffered 84% permanent physical impairment in relation to both lower limbs as she had sustained fracture of D11 and D12 vertebrae with para paresis.
32. Although, the petitioner has relied upon certificate dated 16.12.13(Ex. PW1/4) issued by Dr. Ashish Jain from whom she had received medical treatment, wherein it is mentioned that she would require medicines costing approximately Rs. 8,000/ to Rs. 10,000/ per month life long. She has also relied upon another certificate dated 01.06.13(Ex. PW1/5) issued by Dr. Ashish Jain, wherein also, it is mentioned that since the petitioner Rekha Devi had sustained fracture of D11 & D12 Vertebrae with paraplegia, she would require medicines for life time. However, the petitioner has failed to examine said doctor during the course of inquiry. It is not clear as to on what basis, the concerned treating doctor has given an estimate of Rs. 8,000/ to Rs. 10,000/ per month towards cost of medicines for the petitioner. In the absence thereof, I am not inclined to accept the said amount to be awarded in favour of petitioner. At the same time, it is abundantly clear from the treatment record as well as the Disability Certificate of petitioner that she would require the help of one attendant during rest of her life. Hence, she is entitled to just and fair amount of compensation in lieu of attedant charges. In the absence of any definite and cogent evidence being led during the course of inquiry, it would involve guess work on the part of Claims Tribunal to award notional amount under this head.
Smt. Rekha Vs. Khurshid & Ors. Page 12 of 18MACP No. 4272/16; FIR No. 05/11; PS.Kundli Sonepat DOD: 03.05.2018
33. Taking the overall facts and circumstances including the nature of injuries suffered by petitioner as also the permanent disability sustained by her in relation to both lower limbs and she being a case of para paresis, I hereby award notional amount of Rs. 5,00,000/(Rupees Five Lacs Only) to the petitioner on account of medicines and attendant charges for rest of her life.
LOSS OF FUTURE INCOME
34. As already stated above, the petitioner is shown to have sustained 84% permanent disability in relation to her both lower limbs. Same is quite evident from Disability Certificate dated 29.08.2014 (Ex. PW2/1) of Medical Board of SRHC Hospital, Narela, Delhi. The petitioner has also testified in this regard while examining herself as PW1 during inquiry. She has not been crossexamined by the respondents on this aspect.
35. As per the testimony of PW2 Dr. Ashutosh Gupta, who was one of the members of Disability Board constituted at SRHC Hospital, the petitioner was found to have suffered 84% permanent disability in relation to her both lower limbs. In the crossexamination on behalf of insurance company, he deposed that he had never treated the patient namely Ms. Rekha. He further deposed that the said patient had suffered fracture of D11 and D12 vertebrae with paraparesis. Respondents no. 1 & 2 did not crossexamine the witness despite grant of opportunity.
36. The disability certificate (Ex. PW2/1) of injured would reveal that she had suffered 84% permanent disability in relation to both lower limbs. She was doing private job at Cosmetic Shop prior to the accident in question. Thus, it would not be possible for her to engage herself in the said avocation or in any kind of employment requiring movements of both lower limbs or even to do her day to day activities herself. Hence, her functional disability is taken as 75% with regard to whole body.
Smt. Rekha Vs. Khurshid & Ors. Page 13 of 18MACP No. 4272/16; FIR No. 05/11; PS.Kundli Sonepat DOD: 03.05.2018
37. In copy of Voter I Card (Ex. PW1/6) of petitioner, her age is mentioned as 41 years as on 01.01.2008. The date of accident is 09.01.2011. In view of said document, her age would come somewhere between 4445 years as on the date of accident. Hence, I am inclined to accept the age of petitioner/injured to be 45 years at the time of accident. Hence, the appropriate multiplier would be 14 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.", passed in SLP(Civil) No. 25590/14 decided on 31.10.17. The notional monthly income of petitioner has been taken as Rs. 6,734/ per month as discussed above. Thus, the loss of monthly future income would be Rs. 5,050/ (rounded off) (Rs. 6,734/ x 75/100 ). The total loss of future income would be Rs. 10,60,500/ (Rs.5,050/ x 125/100 x 12 x 14). Thus, a sum of Rs. 10,60,500/ is awarded in favour of petitioner under this head. (Reliance placed on decisions of Hon'ble Delhi High Court in "National Insurance Co. Ltd. Vs. Hari Om Const. & Ors.", MAC APP No. 464/2011 decided on 03.11.17 and "ICICI Lombard General Insurance Company Limited Vs. Mahesh Kumar & Ors.", MAC APP No. 843/2011, decided on 03.11.17).
Thus, t he total compensation is assessed as under:
1. Medical Expenses Rs. 1,23,945/
2. Loss of income Rs. 80,808/
3. Pain and suffering Rs. 1,00,000/
4. Loss of general amenities and Rs. 1,00,000/ enjoyment of life
5. Conveyance, special diet, future cost Rs. 5,00,000/ of medicines and attendant charges for rest of life
5. Loss of future income Rs. 10,60,500/ Total Rs. 19,65,253/ Rounded off to Rs. 19,66,000/ Smt. Rekha Vs. Khurshid & Ors. Page 14 of 18 MACP No. 4272/16; FIR No. 05/11; PS.Kundli Sonepat DOD: 03.05.2018
38. Now, the question which arises for determination is as to which of the respondents is liable to pay the compensation amount. Counsel for insurance company sought to avoid the liability of insurance company to pay the compensation amount on the ground that the offending vehicle was not having any valid permit with regard to place of accident, as on the date of accident in question. In order to substantiate the said plea, insurance company has examined Sh. Amit Yadav, Senior Executive, Future Generali India Insurance Company Ltd. as R3W1. Said witness has deposed in his evidence by way of affidavit (Ex. R3W1/A) that there was no valid permit at the time of alleged accident with the respondents no. 1 & 2 in respect of vehicle despite the fact that said vehicle was a commercial vehicle. He relied upon attested copy of insurance policy as Ex. R3W1/1. He further deposed that despite service of notice u/o 12 Rule 8 CPC upon driver as well as on registered owner, they have failed to produce valid Permit of vehicle in question. He has relied upon copy of said notice along with postal receipts as Ex. R3W1/2. Said witness has not been crossexamined at all by driver and registered owner being exparte.
39. At this juncture, it would be relevant to refer to the provision contained in Section 66 (1) of M.V Act which read as under: Necessity for Permits:(1) No owner of a motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place whether or not such vehicle is actually carrying any passengers or goods save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or any prescribed authority authorising him the use of the vehicle in that place in the manner in which the vehicle is being used.
40. It is quite clear from the bare perusal of the aforesaid provision that transport vehicle cannot be used in any public place, whether or not such vehicle is actually carrying any passengers or goods, save in accordance with Smt. Rekha Vs. Khurshid & Ors. Page 15 of 18 MACP No. 4272/16; FIR No. 05/11; PS.Kundli Sonepat DOD: 03.05.2018 the conditions of a permit granted by Regional or State Transport Authority. Thus, there is clear violation of the terms and conditions of the insurance policy for want of valid permit in respect of offending vehicle as on the date of accident.
41. Now turning back to the facts of the case. The respondent no. 2 i.e. registered owner, despite being put to notice U/o 12 rule 8 CPC ( Ex. R3W1/1), failed to bring on record any valid permit in respect of the offending vehicle. Since, he failed to file any reply to said notice, an adverse inference is liable to be drawn against him that there was no valid permit in respect of offending vehicle as on the date of accident. Moreover, said two respondent also failed to enter into witness box or to file any valid permit of the said offending vehicle during the period in question. In these circumstances, it is held that there was fundamental breach in terms and conditions of the insurance policy on the part of insured i.e. respondent no. 2. Hence, insurance company is entitled to recovery rights against the respondent no. 2. (Reliance placed on decision dated 26.09.2017 in FAO no.7555/2015 in the matter titled as "MS Middle High School and another Vs. Usha and others" by Hon'ble High Court of Punjab and Haryana and as upheld by Hon'ble Apex Court in SLP no.31406/2017 titled as "MS Middle High School Vs. HDFC ERGO General Insurance Company Ltd. & others" decided on 22.11.2017). Issue no. 2 is decided accordingly.
ISSUE NO. 3 RELIEF
42. In view of my findings on issues no. 1 and 2, I award compensation of Rs. 19,66,000/ alongwith interest @ 9% per annum in favour of petitioner and against the respondents w.e.f. date of filing of the petition i.e. 09.04.2012 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). However, it would be open to the Smt. Rekha Vs. Khurshid & Ors. Page 16 of 18 MACP No. 4272/16; FIR No. 05/11; PS.Kundli Sonepat DOD: 03.05.2018 insurance company to recover the award amount from respondent no. 2 after payment of compensation amount, in accordance with law.
APPORTIONMENT
43. Statement of petitioner in terms of Clause 26 MCTAP was recorded on 06.12.2017. 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 award amount, a sum of Rs. 2,50,000/ (Rupees Two Lacs and Fifty Thousand Only) (since a sum of Rs. 1,23,945/ has already been incurred by injured on her treatment) shall be immediately released to the petitioner through her saving bank account no. 37642481328 with State Bank of India, Sameypur, Mandir Mohalla, Delhi, having IFSC Code No. SBIN000666 and remaining amount alongwith interest amount be kept in the form of FDRs in the multiples of Rs. 20,000/ each for a period of one month, two months, three months and so on and so forth having cumulative interest.
44. The FDRs to be prepared as per the aforesaid directions, shall be subject to the following directions:
(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 claimant/petitioner. At the time of maturity, the fixed deposit amount shall be automatically credited in the savings bank account of the Claimant/petitioner.
(ii) The maturity amount(s) of the FDR(s) shall be credited to the savings bank account of the claimant in a nationalized bank near the place of her residence.
(iii) No cheque book/Debit Card be issued to the claimant in respect of the savings bank account in which the award amount is to be sent/credited, without permission of the Court. However, in case the debit card and/or cheque book have already been issued, the bank shall cancel the same before the disbursement of the award amount.
(iv) No loan, advance or withdrawal be allowed on the fixed deposit(s) without permission of the Court.
Smt. Rekha Vs. Khurshid & Ors. Page 17 of 18MACP No. 4272/16; FIR No. 05/11; PS.Kundli Sonepat DOD: 03.05.2018
(v) The Bank shall not permit any joint name(s) to be added in the savings bank account or fixed deposit account of the victim.
(vi) Half yearly statement of account be filed by the Bank before the Tribunal.
45. During the course of hearing final arguments, claimant was examined in order to ascertain as to whether she was entitled to exemption from deduction of TDS or not. She made statement on oath that she was entitled to exemption from deduction of TDS and also furnished Form No. 15G on record.
46. Respondent no. 3, being insurer of offending vehicle is directed to deposit the award 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 amount of Rs. 2,50,000/ 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 alongwith Form no. 15G furnished by claimant (after retaining its copy on record) to counsel for insurance company 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 V in terms of MCTAP is 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 03.05.2018 (VIDYA PRAKASH) Judge MACT2 (North) Rohini Courts, Delhi Smt. Rekha Vs. Khurshid & Ors. Page 18 of 18