Delhi District Court
Smt. Ranjita Devi vs Sh. Mehar Singh on 5 August, 2022
MACP Nos. 5074/16,5071/16 & 4903/16; FIR No. 799/14; PS. Alipur DOD: 05.08.2022
IN THE COURT OF SHRI VINOD YADAV,
PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNAL,
NORTH DISTRICT, ROHINI COURTS, DELHI
MAC Petition No. 5074/16
UID/CNR No. DLNT010008752014
1. Smt. Ranjita Devi,
W/o Sh. Late Sh. Akhalesh Kumar Thakur,
(Widow of deceased)
2. Baby Priyanshi,
D/o Sh. Late Sh. Akhalesh Kumar Thakur,
(Minor daughter of deceased)
3. Master Prince Kumar,
S/o Sh. Late Sh. Akhalesh Kumar Thakur,
(Minor son of deceased)
4. Sh. Laxman Thakur,
S/o Late Sh. Keshav Thakur,
(father of deceased)
All R/o. VPO Kurur,
District Rohtas,
Bihar.
.......Petitioners
VERSUS
1. Sh. Mehar Singh,
S/o Sh. Gopi Ram,
R/o H.No. 292/4,
Sant Nagar, Near Sector - 6,
District Panipat,
Haryana.
(Driver)
Ranjita Devi & Ors., Shailendra Kumar, Sayam Behari Vs. Mehar Singh & Ors. Page 1 of 45
MACP Nos. 5074/16,5071/16 & 4903/16; FIR No. 799/14; PS. Alipur DOD: 05.08.2022
2. General Manager Haryana Roadway,
Haryana Roadway,
Karnal Depot,
District Karnal,
Haryana.
(Registered owner)
3. New India Assurance Co. Ltd.
Plot No. C6, NCL Premises,
1st Floor, Bandra Kurla Complex,
Bandra,
Mumbai.
(Insurer)
........Respondents
AND
MAC Petition No. 5071/16
UID/CNR No.DLNT010008732014
Sh. Shailendra Kumar,
S/o Sh. Malikhan Singh,
R/o Village Alalmpur,
District Mainpuri,
Uttar Pradesh.
(Injured)
VERSUS
1. Sh. Mehar Singh,
S/o Sh. Gopi Ram,
R/o H.No. 292/4,
Sant Nagar, Near Sector - 6,
District Panipat,
Haryana.
(Driver)
Ranjita Devi & Ors., Shailendra Kumar, Sayam Behari Vs. Mehar Singh & Ors. Page 2 of 45
MACP Nos. 5074/16,5071/16 & 4903/16; FIR No. 799/14; PS. Alipur DOD: 05.08.2022
2. General Manager Haryana Roadway,
Haryana Roadway,
Karnal Depot,
District Karnal,
Haryana.
(Registered owner)
3. New India Assurance Co. Ltd.
Plot No. C6, NCL Premises,
1st Floor, Bandra Kurla Complex,
Bandra,
Mumbai.
(Insurer)
........Respondents
AND
MAC Petition No. 4903/16
UID/CNR No.DLNT010007162014
Sh. Sayam Behari,
S/o Sh. Udal Singh,
R/o H.No. 35,
Sairpur,Nagla Penth,
District Mainpuri,
Uttar Pradesh.
(Injured)
VERSUS
1. Sh. Mehar Singh,
S/o Sh. Gopi Ram,
R/o H.No. 292/4,
Sant Nagar, Near Sector - 6,
District Panipat,
Haryana.
(Driver)
Ranjita Devi & Ors., Shailendra Kumar, Sayam Behari Vs. Mehar Singh & Ors. Page 3 of 45
MACP Nos. 5074/16,5071/16 & 4903/16; FIR No. 799/14; PS. Alipur DOD: 05.08.2022
2. General Manager Haryana Roadway,
Haryana Roadway,
Karnal Depot,
District Karnal,
Haryana.
(Registered owner)
3. New India Assurance Co. Ltd.
Plot No. C6, NCL Premises,
1st Floor, Bandra Kurla Complex,
Bandra,
Mumbai.
(Insurer)
........Respondents
APPEARENCES
Sh. K.R. Sharma, Ld. Counsel for petitioners/Lrs of deceased
as well as for both the injured.
Sh. B.L. Marnaulia, Ld. Counsel for driver.
Sh. Rajeev Rathi, Ld. Counsel for registered owner.
Sh. Navdeep Singh, Ld. Counsel for insurance co.
Petition 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 three Detailed
Accident Reports (DAR) petitions with regard to fatal injuries sustained by
Sh. Akhalesh Thakur (deceased in MACP No. 5074/16), grievous injuries
sustained by Sh. Shailendra Kumar (injured in MACP No. 5071/16) and by
Sayam Behari (injured in MACP No. 4903/16) in Motor Vehicular Accident
which occurred on 29.08.2014 at 3:15 am at Traffic Signal Singhu Border,
Ranjita Devi & Ors., Shailendra Kumar, Sayam Behari Vs. Mehar Singh & Ors. Page 4 of 45
MACP Nos. 5074/16,5071/16 & 4903/16; FIR No. 799/14; PS. Alipur DOD: 05.08.2022
Delhi, involving Haryana Roadways Bus bearing registration no. HR45B
1874 (offending vehicle) being driven in a rash and negligent manner by
its driver(R1 herein).
2. All the three DAR petitions were consolidated for the purpose
of recording of evidence vide order dated 04.08.2015, passed by my Ld.
Predecessor and MACP No. 5074/16 titled as " Ranjita & Ors. Vs. Mehar
Singh & Ors" was treated as the leading case. Accordingly, the evidence
was led on behalf of the parties in the leading case.
FACTS OF THE CASES
3. According to the DAR filed in all the three cases, on 29.08.2014, Sh. Akhalesh Kumar Thakur (deceased), Sh. Shailendra Kumar (injured) and Sh. Sayam Behari (injured), were returning to their home from their work place by one bicycle. Injured Shailendra Kumar was pedalling the said bicycle, injured Sayam Behari was sitting on the rod of said bicycle and deceased Akhalesh was sitting at the back seat of said bicycle. At about 3:15 am, when they reached near traffic signal Singhu Border, Delhi, offending vehicle which was being driven by its driver at a high speed, in a rash and negligent manner, came from Delhi side and hit the aforesaid bicycle after jumping the red light signal. Due to the said impact, all the cyclists fell down on the road and sustained grievous injuries. They were removed to SRHC Hospital, Narela, Delhi. FIR No. 799/14 u/s.
Ranjita Devi & Ors., Shailendra Kumar, Sayam Behari Vs. Mehar Singh & Ors. Page 5 of 45MACP Nos. 5074/16,5071/16 & 4903/16; FIR No. 799/14; PS. Alipur DOD: 05.08.2022 279/338 IPC was registered at PS. Alipur with regard to the said accident. It is claimed that offending vehicle was owned by respondent no. 2 and it was insured with New India Assurance Co Ltd./respondent no. 3 during the period in question.
4. In their identical but separate Written Statements in all the three cases, the respondents no. 1 & 2 i.e. driver and registered owner have claimed that the bumper of the offending vehicle had slightly hit the cycle and all the three persons fell down on the road and received injuries. They further claimed that the accident took place due to negligence of the cyclists themselves as they tried to cross the road when green signal was ON for the opposite side. Thus, there was no fault on the part of respondent no. 1. However, they have admitted that their vehicle was insured with respondent no. 3 at the time of accident. They also claimed that the respondent no. 1 was having valid and effective driving licence at the time of accident. On the basis of these averments, they have prayed for dismissal of all the three DARs.
5. In its identical but separate Written Statements filed in all the three cases, the respondent no. 3 i.e. insurance company admitted that offending vehicle was insured with it at the time of accident. It has claimed that all the three petitions are without any cause of action, merit and substance.
Ranjita Devi & Ors., Shailendra Kumar, Sayam Behari Vs. Mehar Singh & Ors. Page 6 of 45MACP Nos. 5074/16,5071/16 & 4903/16; FIR No. 799/14; PS. Alipur DOD: 05.08.2022
6. From the pleading of the parties, the following issues were framed in MACP No. 7011/16 by Ld. Predecessor vide order dated 13.12.2017 :
1) Whether the deceased Ahklish Kumar (Sic Akhalesh Kumar) suffered fatal injuries in road traffic accident on 29.08.2014 at about 3:15 am at traffic signal, Singhu Border, Ailpur, Dehi within the jurisdiction of PS. Alipur due to rashness and negligence on the part of Sh. Mehar Singh who was driving Haryana Roadways Bus bearing registration no. HR45B 1874, owned by General Manager, Haryana Roadways, Karnal and insured with New India Assurance 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.
7. From the pleading of the parties, the following issues were framed in both the cases bearing MACP No. 5071/16 & 4903/16 separately by Ld. Predecessor vide order dated 04.08.2015 :
1) Whether the injured Shailender (Sic Shailendra) and injured Shyam Bihar (Sic Sayam Behari) suffered injuries in road traffic accident on 29.08.2014 at about 3:15 am at traffic signal, Singhu Border, Ailpur, Dehi within the jurisdiction of PS. Alipur due to rashness and negligence on the part of Sh. Mehar Singh who was driving Haryana Roadways Bus bearing registration no. HR45B1874, owned by Ranjita Devi & Ors., Shailendra Kumar, Sayam Behari Vs. Mehar Singh & Ors. Page 7 of 45 MACP Nos. 5074/16,5071/16 & 4903/16; FIR No. 799/14; PS. Alipur DOD: 05.08.2022 General Manager, Haryana Roadways, Karnal and insured with New India Assurance Co.
Ltd.? OPP.
2) Whether the injured is entitled to any compensation if so to what amount and from whom? OPP.
3) Relief.
8. In order to establish their claim, the petitioners have examined five witnesses i.e. PW1 Smt. Ranjita( widow of deceaed in MACP No. 5074/16), PW2 Sh. Shailendra (injured in MACP No. 5071/16), PW3 Sh. Sayam Behari (injured in MACP No. 4903/16), PW4 Dr. Ashutosh Gupta, Specialist Orthopedic, SRHC Hospital and PW5 Sh. Vinod Kumar Bisht, AGM, HR & Compilance, Magpple International Ltd(Employer of deceased and injured persons) and their evidence was closed on 06.02.2017 through their counsel. On the other hand, respondent no. 2 has examined six witnesses i.e. R2W1 Sh. Jai Shanker, Clerk, Haryana Roadways, Karnal, R2W2 Sh. Ravi Chauhan, Clerk from the office of General Manager, Haryana Roadways, R2W3 Mohd. Akram, R2W4 Sh. Karamveer, R2W4(sicR2W5) Sh. Rohit and R2W5(sicR2W6) Sh. Surjeet Singh and its evidence was closed vide order dated 20.12.2021. Insurance company has examined two witnesses i.e. R3W1 Sh. Ajay Sharma and R3W2 Sh. Karamvir and its evidence was closed vide order dated 13.01.2020.
Ranjita Devi & Ors., Shailendra Kumar, Sayam Behari Vs. Mehar Singh & Ors. Page 8 of 45MACP Nos. 5074/16,5071/16 & 4903/16; FIR No. 799/14; PS. Alipur DOD: 05.08.2022
9. I have heard the arguments advanced by Ld. Counsels for the parties. My findings on the issues are as under: ISSUE NO. 1 ( IN ALL THE CASES)
10. For the purpose of this issue, the testimonies of PW2 Sh. Shailendra and PW3 Sh. Sayam Behari (both injured) are relevant. They both have deposed in their respective evidence by way of affidavit (Ex. PW2/A & Ex. PW3/A respectively) on the similar lines to the effect that on 29.08.2014, Sh. Akhalesh Kumar Thakur (deceased) and they both were returning to their home from their work place by one bicycle. They further deposed that he (Shailendra Kumar) was pedalling the said bicycle, he (Sayam Behari) was sitting on the rod of said bicycle and deceased Akhalesh was sitting at the back seat of said bicycle. They further deposed that at about 3:15 am, when they reached near traffic signal Singhu Border, Delhi, offending vehicle which was being driven by its driver at a high speed, in a rash and negligent manner, came from Delhi side and hit their bicycle after jumping the red light signal and due to the said impact, they all fell down on the road and sustained grievous injuries. They further deposed that they were removed to SRHC Hospital, Narela, Delhi. They categorically deposed that the accident took place solely and entirely due to rash and negligent driving of offending vehicle by its driver/R1.
Ranjita Devi & Ors., Shailendra Kumar, Sayam Behari Vs. Mehar Singh & Ors. Page 9 of 45MACP Nos. 5074/16,5071/16 & 4903/16; FIR No. 799/14; PS. Alipur DOD: 05.08.2022
11. PW2 Sh. Shailendra has relied upon the following documents: Sr. No. Description of documents Remarks 1. His OPD Ticket Ex PW2/1
2. Copy of his Aadhaar Card Ex. PW2/2
3. Photocopy of discharge slip Mark A
4. DAR Ex. PW2/3(colly)
12. During his crossexamination on behalf of respondent no. 1, he deposed that he had seen the offending vehicle before the accident. He further deposed that when he had seen the offending vehicle, it was at about 3035 mtrs away from them. He denied the suggestion that accident was caused due to his negligence. He further denied the suggestion that the driver of the offending vehicle had not jumped the red light signal. He further denied the suggestion that driver of the offending vehicle had not struck against him but he had struck against the offending vehicle. He denied the suggestion that he had fallen on the road due to his own negligence. During his crossexamination on behalf of respondents no. 2 & 3, he admitted that he knew that three people were not allowed to ride on a single bicycle and stated that they had been doing the same for the last 56 years. He denied the suggestion that due to his negligent act of not following the proper traffic rules, the accident took place.
Ranjita Devi & Ors., Shailendra Kumar, Sayam Behari Vs. Mehar Singh & Ors. Page 10 of 45MACP Nos. 5074/16,5071/16 & 4903/16; FIR No. 799/14; PS. Alipur DOD: 05.08.2022
13. PW3 Sh. Sayam Behari has relied upon the following documents: Sr. No. Description of documents Remarks
1. Copy of his election I card Ex PW3/1
2. DAR Ex. PW3/2(colly)
14. During his crossexamination on behalf of respondent no. 1, he deposed that he had seen the offending vehicle before the accident. He further deposed that when he had seen the offending vehicle, it was at about 3035 mtrs away from them. He denied the suggestion that accident was caused due to the negligence of Shailendra. He further denied the suggestion that the driver of the offending vehicle had not jumped the red light signal. During his crossexamination on behalf of respondents no. 2 & 3, he admitted that he knew that three people were not allowed to ride on a single bicycle and stated that they had been doing the same for the last 56 years. He further admittted that deceased was a dear friend of him.
15. The careful perusal of testimonies of PW2 & PW3 would go to show that the respondents were not able to impeach their testimony through litmus test of crossexamination. The said witnesses are found to have successfully withstood the crossexamination and nothing could be elicited during their crossexamination from the side of respondents so as to discredit their testimony made on Oath.
Ranjita Devi & Ors., Shailendra Kumar, Sayam Behari Vs. Mehar Singh & Ors. Page 11 of 45MACP Nos. 5074/16,5071/16 & 4903/16; FIR No. 799/14; PS. Alipur DOD: 05.08.2022
16. It is an admitted fact that the respondent no.1 is facing the trial as an accused in case FIR No. 799/14, for commission of offence punishable under Section 279/337/338/304A IPC with regard to the accident in the present case. Police has filed DAR in the present case and as per final report in FIR No. 799/14, the respondent no. 1 namely Sh. Mehar Singh (accused in State case) has been charge sheeted for offences punishable U/s 279/337/338/304A 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 vehicle by him. Same would also point out towards rash and negligent driving of offending vehicle by respondent no.1. The registration of FIR and filing of charge sheet against respondent no.1 is sufficient to prima facie establish negligence on the part of respondent no.1.
17. Copy of MLCs (which is part of DAR) of deceased and of both the injured persons would show that they had been removed to SRHC Hospital, Narela, Delhi with alleged history of RTA on 29.08.14. They are shown to have sustained multiple injuries as mentioned therein. Not only this, postmortem was got conducted on the body of deceased Sh. Akhalesh Kumar Thakur. Copy of PM Report (which is part of DAR) would show that cause of death of Akhalesh Kumar Thakur was cerebral damage consequent upon blunt force trauma to head. All the injuries were ante mortem in nature, recent in duration, caused by blunt force and possible in a road traffic accident. The injuries as mentioned in the relevant column of Ranjita Devi & Ors., Shailendra Kumar, Sayam Behari Vs. Mehar Singh & Ors. Page 12 of 45 MACP Nos. 5074/16,5071/16 & 4903/16; FIR No. 799/14; PS. Alipur DOD: 05.08.2022 external injuries of the said report, are also consistent with the injuries which are sustained in road traffic accident. Again, there is no challenge to the aforesaid documents from the side of respondents including insurance company.
18. 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 Sh. Akhalesh Kumar Thakur had sustained fatal injuries, whereas petitioner Sh. Shailendra had sustained grievous injuries and petitioner Sh. Sayam Behari had sustained simple injuries in the road accident which took place on 29.08.2014 at 3:15 am at Traffic Signal Singhu Border, Delhi, due to rash and negligent driving on the part of driver of offending vehicle. Thus, this issue is decided in favour of petitioners and against the respondents in all the three cases.
ISSUE NO.2
19. 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.
Ranjita Devi & Ors., Shailendra Kumar, Sayam Behari Vs. Mehar Singh & Ors. Page 13 of 45MACP Nos. 5074/16,5071/16 & 4903/16; FIR No. 799/14; PS. Alipur DOD: 05.08.2022 Compensation in MACP No. 5074/16 (Deceased Akhalesh Kumar) LOSS OF DEPENDENCY
20. As already stated above, the claimants are the widow, children and father of deceased. PW1 Smt. Ranjita (widow of deceased) has deposed in her evidence by way of affidavit (Ex. PW1/A) that deceased was aged about 35 years; he was working as a Helper in Magppie International Ltd and was drawing monthly salary of Rs. 5,640/ per month. She further deposed that apart from the aforesaid salary, he was also earning approximately Rs. 2500/ per month as overtime in the aforesaid company.
She has relied upon the following documents: Sr. No. Description of documents Remarks
1. Salary certificate of deceased Ex PW1/1
2. Copy of Certificate course in Ex. PW1/2 Dresser Technology
3. Copy of Marksheet of Dresser Ex. PW1/3 Technology
4. Certificate of Bihar School Ex. PW1/4 Examination Boar, Patna 5. Secondary School Ex. PW1/5 Examination
21. During her cross examination on behalf of respondents no .2 & 3, she denied the suggestion that the certificates as filed by her were forged and fabricated. She further denied the suggestion that her husband never used to send Rs. 7,000/ per month to her and that is why, she did not have passbook with her.
Ranjita Devi & Ors., Shailendra Kumar, Sayam Behari Vs. Mehar Singh & Ors. Page 14 of 45MACP Nos. 5074/16,5071/16 & 4903/16; FIR No. 799/14; PS. Alipur DOD: 05.08.2022
22. PW5 Sh. Vinod Kumar Bisht, Assistant General Manager, HR & Compliance, Magppie International Ltd is the Official from the office of employer of deceased. He produced the personal file of Akhilesh Kumar consisting of the documents i.e. applicaton of appointment, appointment letter, confirmation letter, ID Card, record of last payment, PF Form, background checkup form, medical fitness certificate, Form No. D under Factory Act and photocopy of certificate of High School of the deceased. He deposed that as per their record, deceased was appointed as Helper on 04.12.2012 and was a permanent employee of the company. He further deposed that the last drawn salary of the deceased for the month of August 2014 was Rs. 5640/. He further deposed that there was a provision of increment to be paid to the employee after every 6 months as per the provision of Haryana Govt. He further deposed that the deceased was also getting annual bonus of Rs. 3500/ per annum besides other funds. He has exhibited the entire personal file of deceased Akhilesh Kumar produced by him as Ex. PW5/2(colly). He also exhibited the salary record and attendance record of Akhilesh Kumar, Sayam Behari and Shailendra Kumar as Ex. PW5/3(Colly). During his crossexamination on behalf of respondent no.2 & 3, he deposed that in the record of their company, the complete name of Akhilesh Kumar was mentioned as Akhilesh Kumar Ranjan as mentioned in the school records of deceaed. He denied the suggestion that the record produced by him on that day was not pertaining to deceased Akhilesh Kumar.
Ranjita Devi & Ors., Shailendra Kumar, Sayam Behari Vs. Mehar Singh & Ors. Page 15 of 45MACP Nos. 5074/16,5071/16 & 4903/16; FIR No. 799/14; PS. Alipur DOD: 05.08.2022
23. The deceased Akhilesh Kumar was claimed to be working as Helper in Magppie International Ltd and was drawing monthly salary of Rs. 5,640/ at the time of accident. The relevant portion of the testimony of PW1 has gone unchallanged and unrebutted from the side of respondents on this aspect. Moreover, the petitioners have duly proved salary record of deceased for the relevant period. The ocular testimony of PW1 is duly corroborated by the testimony of PW5 and the record produced by him during the course of inquiry, as already noted above.
24. The documentary evidence brought on record by PW5 clearly establishes that Akhilesh Kumar was employed with said company and was getting monthly salary of Rs. 5,640/ per month at the time of accident. Ld. Counsel for petitioners fairly conceded during the course of arguments that at the time of filing of present petition as well as in the evidence of Smt. Ranjita (widow of deceaed), he had claimed the salary of deceased as Rs. 5640/ per month. Ld. Counsel for petitioners vehemently argued that since deceased was 10th passed and had also done certificate course in Dresser Technology, minimum wages of skilled worker should be taken into consideration in order to calculate the loss of dependency. For this purpose, he heavily relied upon the documents Ex. PW1/2 & PW1/3.
25. Before proceeding futher, it is relevant to note here that claim petition filed under relevant provisions of M.V Act, is the outcome of social welfare legislation and the proceedings are summary in nature and do not Ranjita Devi & Ors., Shailendra Kumar, Sayam Behari Vs. Mehar Singh & Ors. Page 16 of 45 MACP Nos. 5074/16,5071/16 & 4903/16; FIR No. 799/14; PS. Alipur DOD: 05.08.2022 require strict compliance of rules of evidence and pleadings. It needs no emphasis that in case replies filed by respondents, are evasive then it is deemed that they have admitted the averments made by the claimants. The purpose of granting compensation is to ameliorate the sufferings of the victims of Motor Vehicle Accidents and the niceties, hyper technicalities, procedural wrangles and tangles and mystic maybes have no role to play and same should not be any ground to dismiss the claim petitions and to defeat the rights of the claimants. It is also relevant to mention here that while deciding claim petition under M.V Act, it is the duty of Claims Tribunal to follow the principles of justice, equity and good conscience and to adopt more realistic, pragmatic and liberal approach. In view of the above discussion, I am in agreement with the arguments advanced by Ld. Counsel for petitioners that minimum wages of skilled worker as applicable in the State of Haryana should be taken for the computation of loss of dependency as the deceased was 10th passed and had also done certificate course in Dresser Technology. Hence, income of deceased at the time of accident is taken as Minimum Wages of a skilled worker applicable in the State of Haryana at the time of accident. The minimum wages of a skilled worker applicable in the State of Haryana were Rs. 6,159/ per month during the relevant period. The date of accident is 29.08.2014.
26. As per the case of petitioners, deceased Akhilesh Kumar was aged about 35 years at the time of accident. In copy of 10th class certificate (Ex. PW1/4) of deceased, his date of birth is mentioned as 05.12.1978.
Ranjita Devi & Ors., Shailendra Kumar, Sayam Behari Vs. Mehar Singh & Ors. Page 17 of 45MACP Nos. 5074/16,5071/16 & 4903/16; FIR No. 799/14; PS. Alipur DOD: 05.08.2022 Hence, the age of deceased is accepted as 36 years at that time as the date of accident in the present case is 29.08.2014. Thus, the multiplier of 15 would be applicable in view of 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.
27. Considering the fact that deceased was aged about 36 years at the time of accident and was not having permanent job at that time, future prospects @ 40% has to be awarded in favour of petitioner 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.
28. PW1 has deposed in her evidence by way of affidavit (Ex. PW1/A) that all the petitioners were financially dependent upon the deceased. Considering all these facts and circumstances, it is accepted that there were four dependents i.e. widow, two minor children and father of deceased on the income of deceased at the time of accident. Hence, there has to be deduction of one fourth as held in the case of Pranay Sethi mentioned supra. Thus, the total of loss of dependency would come out to Ranjita Devi & Ors., Shailendra Kumar, Sayam Behari Vs. Mehar Singh & Ors. Page 18 of 45 MACP Nos. 5074/16,5071/16 & 4903/16; FIR No. 799/14; PS. Alipur DOD: 05.08.2022 be Rs. 11,64,051/ (Rs. 6,159/ X 3/4 X 140/100 X 12 X15). Hence, a sum of Rs. 11,64,000/ (rounded off) is awarded under this head in favour of the petitioners.
LOSS OF LOVE & AFFECTION
29. After the celebrated judgment of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors. mentioned supra and recent judgment titled New India Assurance Company Limited versus Somwati & Ors., Civil Appeal no. 3093 of 2020 dated 07.09.2020 the petitioners are not entitled to be compensated under this head. Further 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
30. In view of the judgment of Hon'ble Supreme Court in case titled as New India Assurance Company Limited versus Somwati & Ors., Civil Appeal no. 3093 of 2020, decided on 07.09.2020 I am of the considered opinion that all the petitioners are entitled for payment of Rs. 40,000/each towards loss of consortium. Consequently, a sum of Rs. 1,60,000/ is awarded to the petitioner under this head.
Ranjita Devi & Ors., Shailendra Kumar, Sayam Behari Vs. Mehar Singh & Ors. Page 19 of 45MACP Nos. 5074/16,5071/16 & 4903/16; FIR No. 799/14; PS. Alipur DOD: 05.08.2022 LOSS OF ESTATE & FUNERAL EXPENSES
31. 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. 11,64,000/
2. Loss of Consortium Rs. 1,60,000/
3. Loss of Estate & Funeral Rs. 30,000/ Expenses Total Rs 13,54,000/ Compensation in MACP No. 5071/16 (Injured Shailendra) MEDICAL EXPENSES
32. PW2 Sh. Shailendra i.e. injured himself, has deposed in his evidence by way of affidavit (Ex. PW2/A) that after the accident, he was taken to SRHC Hospital, Narela, Delhi, where he was medically examined. He deposed that he had suffered fracture of shaft femur(L) due to the accident. He deposed that he had spent about Rs. 50,000/ on medicines, Ranjita Devi & Ors., Shailendra Kumar, Sayam Behari Vs. Mehar Singh & Ors. Page 20 of 45 MACP Nos. 5074/16,5071/16 & 4903/16; FIR No. 799/14; PS. Alipur DOD: 05.08.2022 treatment, conveyance and special diet etc. During his cross examination on behalf of respondents no. 2 & 3, he denied the suggestion that he had not spent Rs. 50,000/ on medical treatment, conveyance and diet. He further deposed that he had ESI Card and the said card was used for the whole family and they received money from ESI Card. He further deposed that he had received Rs. 4,000/ and Rs. 1800/ from ESI.
33. It is pertinent to mention here that petitioner has failed to file any medical bills in respect of expenses incurred by him on his treatment. Even, he himself admitted in his crossexamination that he had not filed any medical bills. Hence, no amount can be awarded to the petitioner under this head.
LOSS OF INCOME
34. Injured namely Sh. Shailendra (PW1) has categorically deposed in his evidence by way of affidavit(Ex PW1/A) that he was working in Magppie International Ltd as a Checker and was earning Rs. 6,500/ per month besides overtime about Rs. 1500/ per month at the time of accident. He further deposed that due to injuries and disability suffered by him in the accident, he could not do his duty properly as such he had been terminated by his employer. He further deposed that he remained on leave for about 3 ½ months due to the injuries from his duty. For this, he has relied upon OPD Ticket (Ex. PW2/1) and Discharge summary(Mark A) of ESI Hospital.
Ranjita Devi & Ors., Shailendra Kumar, Sayam Behari Vs. Mehar Singh & Ors. Page 21 of 45MACP Nos. 5074/16,5071/16 & 4903/16; FIR No. 799/14; PS. Alipur DOD: 05.08.2022 None of the respondents crossexamined this witness on this aspect at all despite grant of opportunity.
35. As per the discharge summary of ESI Hospital, he was admitted in the said hospital on 29.08.2014 and discharged on 16.09.2014. He is found to have sustained Grade III B open fracture shaft femur (L) and ORIF with interlocking nail left was also done on 08.09.2014.
36. The treatment record (Ex. PW2/1 & Mark A) of ESI Hospital, in respect of petitioner/injured Shailendra, would reveal that he was admitted in the said hospital on 29.08.2014 and discharged on 16.09.2014. As per the discharge summary of ESI Hospital, he is found to have suffered Grade III B open fracture shaft femur (L). Relevant part of testimony of PW2 regarding the nature of his injuries, has also gone unchallanged and uncontroverted from the side of respondent. Apart from this, the petitioner is also shown to have sustained permanent disabilty to the extent of 18% in relation to left lower limb.
37. Apart from the aforesaid documents produced by PW1 i.e. the petitioner & PW5, he has failed to file any other medical treatment record in order to show the exact period upto which he had received the medical treatment. Nevertheless, it can not be overlooked that the petitioner had suffered Grade III B open fracture shaft femur (L) in the accident. Apart from this, petitioner had also sustained permanent disabilty to the extent of Ranjita Devi & Ors., Shailendra Kumar, Sayam Behari Vs. Mehar Singh & Ors. Page 22 of 45 MACP Nos. 5074/16,5071/16 & 4903/16; FIR No. 799/14; PS. Alipur DOD: 05.08.2022 18% in relation to left lower limb. Considering the nature of injuries and permanent disability sustained by the petitioner Sh. Shailendra, it is presumed that he would not have been able to work at all for a period of 2 months or so.
38. It is relevant to note here that petitioner has deposed in his evidence by way of affidavit Ex. PW2/A that he was earning Rs. 6,500/ per month besides overtime amount of Rs. 1500/ per month at the time of accident. In order to prove his employment, petitioner has examined PW5 who was from the office of his employer who deposed that Sh. Shailendra was working as Assistant Operator in their company and was getting monthly salary of Rs. 6480/. He further deposed that Sh. Shailendra remained on leave from 01.09.2014 to 30.09.2014. He further deposed that Shaliendra has left the job of their company.
39. As per the documents produced by PW5, petitioner Shailendra was working as Assistant Operator in the aforesaid company and was getting monthly salary of Rs. 6480/ at the time of accident. After referring to the testimonies of PW2 & PW5 and the documents filed by them, Ld. counsel for petitioner vehemently argued that last drawn monthly salary of petitioner may be taken as Rs. 6480/ in order to calculate his loss of income.
Ranjita Devi & Ors., Shailendra Kumar, Sayam Behari Vs. Mehar Singh & Ors. Page 23 of 45MACP Nos. 5074/16,5071/16 & 4903/16; FIR No. 799/14; PS. Alipur DOD: 05.08.2022
40. After considring the testimonies of PW2 & PW3, I am inclined to accept the monthly income of petitioner as Rs. 6480/ at the time of accident for calculation of his loss of income. Thus, a sum of Rs. 13,000/ (rounded off)(Rs. 6,480/ x 8)is awarded in favour of petitioner and against the respondents under this head.
PAIN AND SUFFERING
41. 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".
42. Injured himself as PW1 has deposed in his evidence by way of affidavit(Ex PW1/A) that he had sustained grievous injuries in the accident in question. Apart from this, the petitioner is also shown to have sustained permanent disabilty to the extent of 18% in relation to left lower limb. Thus, he would have undergone great physical sufferings and mental shock on Ranjita Devi & Ors., Shailendra Kumar, Sayam Behari Vs. Mehar Singh & Ors. Page 24 of 45 MACP Nos. 5074/16,5071/16 & 4903/16; FIR No. 799/14; PS. Alipur DOD: 05.08.2022 account of the accident in question. Keeping in view the medical treatment record of petitioner available on record and the nature of injuries suffered by him, I hereby award a sum of Rs. 50,000/ towards pain and sufferings to the petitioner.
LOSS OF GENERAL AMENITIES & ENJOYMENT OF LIFE
43. As already mentioned above, there is sufficient evidence on record to establish that the petitioner had suffered multiple facial injuries in the accident. Apart from this, the petitioner is also shown to have sustained permanent disabilty to the extent of 18% in relation to left lower limb. Thus, he would not be able to enjoy general amenities of life after the accident in question, during rest of his life and his quality of life has been definitely affected. In view of the nature of injuries including permanent disability suffered by him and his continued treatment for considerable period, I award a notional sum of Rs. 50,000/ towards loss of general amenities and enjoyment of life to the petitioner.
CONVEYANCE, SPECIAL DIET & ATTENDANT CHARGES
44. During the course of arguments, Ld. Counsel for petitioner/injured argued that petitioner had spent considerable amount on conveyance, special diet and attendant. However, he has failed to lead any cogent evidence on record in respect of amount incurred by him under the Ranjita Devi & Ors., Shailendra Kumar, Sayam Behari Vs. Mehar Singh & Ors. Page 25 of 45 MACP Nos. 5074/16,5071/16 & 4903/16; FIR No. 799/14; PS. Alipur DOD: 05.08.2022 aforesaid heads. Apart from this, the petitioner is also shown to have sustained permanent disabilty to the extent of 18% in relation to left lower limb. Thus, he would have taken special rich protein diet for his speedy recovery and would have also incurred considerable amount towards conveyance charges while commuting to the concerned hospital as OPD patient for his regular check up & follow up during the period of his medical treatment. He would have been definitely helped by some person either outsider or from his family, to perform his daily activities as also while visiting the hospital during the course of his medical treatment. In these facts and circumstances, I hereby award a notional sum of Rs. 10,000/ for conveyance charges and a sum of Rs. 15,000/ each for special diet and attendant charges to the petitioner.
LOSS OF FUTURE INCOME
45. The petitioner is shown to have sustained 18% permanent disability in relation to his left lower limb. Same is quite evident from Disability Certificate dated 16.02.2016 of Medical Board of SRHC Hospital, Delhi.
46. As per the testimony of PW2 Dr. Ashutosh Gupta, SRHC Hospital, Delhi, the petitioner was found to have suffered 18% permanent disability in relation to his left lower limb in terms of Disability Certificate (Ex. PW4/A). He deposed that the patient would have some difficulty in Ranjita Devi & Ors., Shailendra Kumar, Sayam Behari Vs. Mehar Singh & Ors. Page 26 of 45 MACP Nos. 5074/16,5071/16 & 4903/16; FIR No. 799/14; PS. Alipur DOD: 05.08.2022 doing the labour work. During his crossexamination on behalf of insurance company, he denied the suggestion that permanent disability suffered by the patient would not effect his loss of earnings. He further denied the suggestion that injured may have complete work of labour.
47. Keeping in view the overall facts and circumstances of the case including the nature of injuries sustained by petitioner as well as the testimony of PW2 Dr. Ashutosh Gupta, his functional disability is taken as 12 % with regard to whole body.
48. In copy of Aadhaar Card(Ex. PW2/2) of petitioner, his year of birth is mentioned as 1992. The date of accident is 29.08.2014. Thus, the petitioner was about 22 years of age on the date of accident. Hence, the appropriate multiplier would be 18 in view of judgment passed in case titled as "Sarla Verma Vs. DTC", 2009 ACJ 1298 SC. The monthly income of petitioner has been taken as Rs. 6,480/ per month as discussed above. Thus, the loss of monthly future income would be Rs. 777.60 paise (Rs. 6,480/ x 12/100 ). The total loss of future income would be Rs. 2,35,146.24 paise (Rs. 777.60 x 140/100 x 12 x 18). Thus, a sum of Rs. 2,35,000/ (rounded off) is awarded in favour of petitioner under this head.
Thus, the total compensation is assessed as under:
1. Loss of income Rs. 13,000/
2. Pain and suffering Rs. 50,000/
3. Loss of general amenities and Rs. 50,000/ Ranjita Devi & Ors., Shailendra Kumar, Sayam Behari Vs. Mehar Singh & Ors. Page 27 of 45 MACP Nos. 5074/16,5071/16 & 4903/16; FIR No. 799/14; PS. Alipur DOD: 05.08.2022 enjoyment of life
4. Conveyance, special diet and Rs. 50,000/ attendant charges
5. Loss of future income Rs. 2,35,000/ Total Rs. 3,98,000/ Compensation in MACP No. 4903/16(Injured Sayam Behari)
49. PW3 i.e. injured Sayam Behari has deposed in his evidence by way of affidavit (Ex. PW3/A) that after the accident, he was removed to SRHC Hospital, where he was medically examined. He further deposed that he had spent about Rs. 20,000/ on medicines, treatment, conveyance and special diet etc. During his crossexamination on behalf of respondent no.2 & 3, he deposed that he had not filed any medical bills. He denied the suggestion that he had not spent Rs. 20,000/ on medical treatment, conveyance and diet. It is relevant to note that petitioner has failed to file any medical bills in respect of expenses incurred by him on his treatment. Hence, no amount can be awarded to the petitioner under the head medical expenses.
50. The MLC (which is part of DAR) of SRHC Hospital, Narela, Delhi of petitioner/injured Sayam Behari, would reveal that he had suffered simple injury in the accident. Keeping in view the medical treatment record Ranjita Devi & Ors., Shailendra Kumar, Sayam Behari Vs. Mehar Singh & Ors. Page 28 of 45 MACP Nos. 5074/16,5071/16 & 4903/16; FIR No. 799/14; PS. Alipur DOD: 05.08.2022 of petitioner available on record, the discussion made herein above and since the nature of injuries suffered by her being not found to be grievous, I hereby award total notional amount of Rs. 35,000/ towards pain and sufferings, special diet, etc, to him.
51. This brings me down to the next question as to whether insurance company has been able to prove the statutory defence raised by it in its written statement, wherein it has claimed that respondent no. 1 was not having any valid and effective DL at the time of accident in question.
52. Per contra, Ld counsel for registered owner/insured vehemently argued that there was valid and effective DL in favour of respondent no. 1 at the time of accident in question and thus, insurance company is liable to pay the compensation amount. Alternatively, he argued that the insured had taken all the relevant precautions at the time of employing respondent no. 1 as driver in respect of the offending bus and had duly checked the DL produced by R1. For the said purpose, he relied upon the testimonies of R2W1 to R2W6. He therefore, urged that no liability should be fastened upon insured to pay the compensation amount.
53. At this juncture, it would be relevant to discuss, in brief, the testimonies of relevant witnesses in order to appreciate the rival submissions made on behalf of both the sides.
Ranjita Devi & Ors., Shailendra Kumar, Sayam Behari Vs. Mehar Singh & Ors. Page 29 of 45MACP Nos. 5074/16,5071/16 & 4903/16; FIR No. 799/14; PS. Alipur DOD: 05.08.2022
54. As already noted above, the respondent no.2 i.e. registered owner in order to prove its defence has examined six witnesses. R2W1 Sh. Jai Shankar, Clerk, from the office of Haryana Roadways, Karnal produced the original registration Certificate of offending vehicle i.e. bus bearing registration no. HR45B1874 and exhibited the same as Ex. R2W1/1. He also exhibhited the copy of insurance policy of offending vehicle as Ex. R2W1/2(colly) and route permit of said vehicle as Ex. R2W1/3. The said witness was not crossexamined by insurance company despite grant of opportunity.
55. R2W2 Sh. Ravi Chauhan, Clerk from the office of General Manager, Haryana has deposed in his evidence by way of affidavit Ex. R2W2/1 that Sh. Mehar Singh, S/o Sh. Gopi Ram was appointed as driver on 01.02.1985 in Haryana Roadways. He further deposed that at the time of initial appointment, the respondent no. 1 submitted a valid driving licence bearing no. 6300/KDR/78 dated 02.08.1978 issued by Licencing Authority, Kotdwara, Garhwal, UK which was duly renewed from time to time and was verified as a valid driving licence by Assistant Regional Licencing Authority, Kotdwara, UK vide his report dated 05.10.2020. He deposed that as per report dated 05.10.2020, the aforesaid driving licence was valid from 02.08.1978 to 01.08.1981 and thereafter, it was renewed by the Sub Division Magistrate, Karnal at S.No. 5650 from 01.08.1981 to 02.04.1994. Thereafter, the said driving licence was renewed by the Secretary Regional Transport Authority, Karnal at S.No. 1362 in the year 1995 from 02.06.1995 Ranjita Devi & Ors., Shailendra Kumar, Sayam Behari Vs. Mehar Singh & Ors. Page 30 of 45 MACP Nos. 5074/16,5071/16 & 4903/16; FIR No. 799/14; PS. Alipur DOD: 05.08.2022 to 01.06.1998 and 28.01.1999 to 01.06.2001. He further deposed that in the year 2001, the Transport Commissioner, Haryana issued letter dated 20.08.2001 vide which it has been decided that driving licences which were issued by Licencing Authorities outside Haryana but renewed by the different authorities in the State of Haryana should be got verified by writing the letter seeking verification of the same. If the verification in respect of any driver was not received within stipulated time from the Licencing Authorities then all such driver should be directed to have fresh driving licence issued from Local DTO's as per policy decision taken in the CO's Meeting held on 19.11.1997. He deposed that thereafter, Regional Transport Authority, Panipat on their record renewed driving licence at No. 1363/HTV/KNL/03 from time to time. He further deposed that Regional Transport Authority, Panipat while issuing driving licence/renewal no. 1363/HTV/KNL/2002 might have inadvertently mentioned number as 317/HTV/KNL/2002, whereas as per office record, actual old driving licence number of respondent no. 1 was 6300/KDR/78 dated 02.08.1978 issued by the Licencing Authority, Kotdwar, Garhwal, UK. He also deposed that the respondent no. 1 had also given in writing in the office that the driving licence no. 317/HTV/KNL/2002 was never issued to him and he never produced/submitted the same in the office of respondent no. 2 and thus, respondent no. 2 was not concerned with that licence. He also deposed that during the evidence, the insurance company had depicted and verified the old driving licence bearing no. 317/HTV/KNL/2002 issued by Licencing Authority, Karnal, whereas the driver/respondent no. 1 was initially issued Ranjita Devi & Ors., Shailendra Kumar, Sayam Behari Vs. Mehar Singh & Ors. Page 31 of 45 MACP Nos. 5074/16,5071/16 & 4903/16; FIR No. 799/14; PS. Alipur DOD: 05.08.2022 driving licence no. 6300/KDR/78 dated 02.08.1978 by the Licencing Authority, Kotdwar, which was a valid driving licence. He further submitted that the driving licence which was submitted by the respondent no. 1 at the time of his appointment was still valid/genuine and renewed from time to time and thus, the driver was holding valid driving licence at the time of accident. He has relied upon the following documents: Sr. No. Description of documents Remarks
1. Copy of driving licence of Ex PW2/1 respondent no. 1
2. Copy of verification report Ex. PW2/2 dated 05.10.2020
3. Copy of verification report Ex. PW2/3 dated 12.10.2020
4. Copy of verification report Ex. PW2/4 dated 15.10.2020
5. Letter dated 20.08.2001 Ex. PW2/5
6. Copy of driving licence of Mark A respondent no.1
7. Copy of renewal report of Mark B driving licence of respondent no. 1
8. Copy of statement of Ex. R2W2/6 respondent no. 1/driver given in their office
56. During his crossexamination on behaf of petitioners, he deposed that he did not have any personal knowledge regarding the driving licence of respondent no. 1. He denied the suggestion that he was Ranjita Devi & Ors., Shailendra Kumar, Sayam Behari Vs. Mehar Singh & Ors. Page 32 of 45 MACP Nos. 5074/16,5071/16 & 4903/16; FIR No. 799/14; PS. Alipur DOD: 05.08.2022 deposing falsely in order to favour the driver/R1 and department. During his crossexamination on behalf of insurance company, he deposed that the driving licence of Sh. Mehar Singh pertaining to Licencing Authority, Kotdwar, Uttarakhand was not filed on record. He further deposed that he could not tell if the insurance company was notified about the details of the driving licence of Mehar Singh after the accident. He denied the suggestion that the entire record which has been placed by him on record alongwith his affidavit, was forged and fabrciated record and the same was obtained to avoid the liability of the department. He deposed that the department had only written to the various authorities beginning from September, 2020. He admitted that they had not obtained any confirmation or verification from the concerned authorities prior to September, 2020.
57. R2W3 Mohd. Akram, Senior Assistant, RTO, Kotdwar, Uttrakhand produced the record pertaining to driving licence no. 6300/KTW/78 issued to Sh. Mehar Singh, S/o Sh. Gopi Ram on 02.08.1978 and the same was valid upto 01.08.1981. He deposed that the category of the said licence was for Heavy Vehicle. He admitted that KDR is a short form of Kotdwar which was generally mentioned in the driving licence as mentioned in Ex. R2W1/1. During his crossexamination on behalf of respondent no. 1, he deposed that he did not have any personal knowledge about the present case. During his crossexamination on behalf of respondent no. 3, he deposed that the aforesaid licence was initially got issued by Sh. Mehar Singh from their office. He further deposed that he Ranjita Devi & Ors., Shailendra Kumar, Sayam Behari Vs. Mehar Singh & Ors. Page 33 of 45 MACP Nos. 5074/16,5071/16 & 4903/16; FIR No. 799/14; PS. Alipur DOD: 05.08.2022 had no legal knowledge to say that no licence could have been issured directly for HMV as per Motor Vehicles Rules in the year 1978. He denied the suggestion that the record brought by him was manipulated and the driving licence was not issued to Mehar Singh whose photograph was affixed in their record. He exhibhited the copy of extract as Ex. R2W3/R3X. He admitted that in Ex. R2W3/R3X, the photograph affixed was not signed and certified by the concerned Licencing Officer. He volunteered that it bears the stamp of their office.
58. R2W4 Sh. Karamveer, Stenographer, RTO, Karnal, Haryana produced verification report dated 15.10.2020 which was already exhibhited as Ex. R2W2/4. He also produced the original record of driving licence no. 1362, old no. 6300/KDR/78 issued to Sh. Mehar Singh, S/o Sh. Gopi Ram, R/o VPO Nasirpur and the same was renewed from time to time i.e. w.e.f. 02.06.1995 to 01.06.1998 and 28.01.1999 to 01.06.2001 and exhibited the extract of said licence as Ex. R2W4/A. During his crossexamination on behalf of respondent no. 1, he deposed that he did not have any personal knowledge about the present case. During his crossexamination examination on behalf of insurance company, he had no knowledge whether any verification was conducted regarding the licence from the RTO, Kotdwar at the time of renewal of the aforesaid driving licence from his office. He further deposed that he had no knowledge whether any photographs used to be affixed in their records at the time of issuance of licence. He admitted that the record which he had brought on that day was Ranjita Devi & Ors., Shailendra Kumar, Sayam Behari Vs. Mehar Singh & Ors. Page 34 of 45 MACP Nos. 5074/16,5071/16 & 4903/16; FIR No. 799/14; PS. Alipur DOD: 05.08.2022 containing photographs at some pages which were also not signed by any officer. He deposed that most of the pages were blank without photographs and no details except the address of the person seeking the issuance of licence were mentioned. He denied the suggestion that he had brought the false and fabricated documents at the instance of respondent no. 2.
59. R2W4(SicR2W5) Sh. Rohit, Clerk, SDM Office, Karnal, Haryana had deposed in his evidence that licence no. 317/HTV/KNL/2002 was never issued by the SDM Offfice, Karnal. During his crossexamination on behalf of insurance company, he deposed that the record relating to the issuance of licence after the year 1994 was with RTA Office, Karnal. He further deposed that he had seen the reply dated 22.07.2015 which was given by RTA Office and not by SDM Office, Karnal.
60. R2W5(SicR2W6) Sh. Surjeet Singh, Transport SubInspector, RTA Office, Panipat, Haryana produced the record relating to Licene No. 1363/HTV/2003 and exhibhited the extract of said driving licence as Ex. R2W5/1. He deposed that as per their record, the first renewal was done on 16.01.2003 which was subsequently renewed after three years. During his crossexamination on behalf of insurance company, he deposed that at the time of seeking the renewal of the licence, no tests were being carried out. He further deposed that the licence which was originally issued had come from RTA Karnal. He further deposed that as per their record, DL No.317/HTV was issued by the Karnal Office. He further deposed that he could only confirm after seeing the record for the relevant period, if any Ranjita Devi & Ors., Shailendra Kumar, Sayam Behari Vs. Mehar Singh & Ors. Page 35 of 45 MACP Nos. 5074/16,5071/16 & 4903/16; FIR No. 799/14; PS. Alipur DOD: 05.08.2022 verification was obtained from RTA Karnal or not. He denied the suggestion that no verification was carried out from the RTA Karnal and for that reason he had not brought any record, in respect of the same. He testified that the endorsement part of Ex.R3W1/4 encircled in red at pointK was issued by their office.
61. As already noted above the insurance company has examined two witnesses in order to prove its defence. R3W1 Sh. Ajay Sharma, Assistant Manager, M/s. The New India Assurance Co. Ltd., has deposed in his evidence by way of affidavit Ex. R3W1/A that the respondent no. 2 has got insured the offending vehicle from it. He further deposed that respondent no. 1 was not holding valid and effective driving licence at the time of acciden. He further deposed that the driver was alleged to have DL No. 1363/HTV/2003 having validity from 16.03.2012 to 15.01.2015 and the same was stated to have been issued from Panipat. He further deposed that as per the verification report, endorsement was made by their office and original licence was issued by RTA Karnal. He deposed that the verifcation was sought from RTA Karnal and information was sought under RTI and it was replied by RTA Office that no such licence was issued by them. He further deposed that fake licence on its renewal can not get regularized and as such insured has committed fundamental breach in the terms of the policy. He has relied upon the following documents: Ranjita Devi & Ors., Shailendra Kumar, Sayam Behari Vs. Mehar Singh & Ors. Page 36 of 45 MACP Nos. 5074/16,5071/16 & 4903/16; FIR No. 799/14; PS. Alipur DOD: 05.08.2022 Sr. No. Description of documents Remarks
1. Insurance policy Ex R3W1/1
2. Notice u/o 12 Rule 8 CPC Ex.R3W1/2
3. Copy of licence of Ex.R3W1/3 respondent/driver
4. Report obtained from RTO Ex. R3W1/4(colly) Karnal and Panipat and information obtained under RTI from RTO Karnal
62. During his crossexamination on behalf of petitioners, he deposed that he did not have any personal knowledge regarding the contents of para no. 3 of his affidavit and the same were based on the basis of the record by Sh. Bijender Singh who was still the Investigator of insurance company.
63. Respondent no. 2/registered owner has examined concerned official from the office of RTA, Panipat, Haryana as R2W5(sicR2W6). However, the said witness produced relevant record i.e. extract of DL No. 1363/HTV/2003 issued in the name of Sh. Mehar Singh S/o Sh. Gopi Ram. He deposed that first renewal of aforesaid DL was done on 16.01.2003 which was subsequently renewed after three years. He exhibited the said record as Ex. R2W5/1.
64. The testimony of R2W5(SicR2W6) would therefore leave no scope for doubt that there was valid and effective driving licence for the Ranjita Devi & Ors., Shailendra Kumar, Sayam Behari Vs. Mehar Singh & Ors. Page 37 of 45 MACP Nos. 5074/16,5071/16 & 4903/16; FIR No. 799/14; PS. Alipur DOD: 05.08.2022 category of offending vehicle i.e. Bus in favour of respondent no. 1 at the time of accident. It is not out of place to mention that police has also filed copy of driving licence of respondent no. 1 and its verification report alongwith the DAR. A bare perusal of the driving licence of respondent no. 1 reveals that same was issued by LA Cum Secretary RTA, Panipat, having validity from 16.07.2012 till 15.07.2015. Hence, there was no fundamental breach in the terms and conditions of insurance policy on that score.
65. I am fortified in my view by the judgment of Hon'ble Apex Court titled as "Pepsu Road Transport Corporation Vs. National Insurance Co. in Civil Appeal No. 8726 of 2009 decided on 26.08.20123 , wherein it was held as under: "xxxxxx Para 20: When an owner is hiring a driver he will therefore have to check whether the driver has a driving licence. If the driver produces a driving licence which on the face of it looks genuine, the owner is not expected to find out whether the licence has in fact been issued by a competent authority or not. The owner would then take the test of the driver. If he finds that the driver is competent to drive the vehicle, he will hire the driver. We find it rather strange that insurance companies expect owners to make enquiries with RTOs, which are spread all over the country, whether the driving licence shown to them is valid or not. Thus where the owner has satisfied himself that the driver has a Ranjita Devi & Ors., Shailendra Kumar, Sayam Behari Vs. Mehar Singh & Ors. Page 38 of 45 MACP Nos. 5074/16,5071/16 & 4903/16; FIR No. 799/14; PS. Alipur DOD: 05.08.2022 licence and is driving competently there would be no breach of Section 149(2)(a)(ii). The Insurance Company would not then be absolved of liability. If it ultimately turns out that the licence was fake, the insurance company would continue to remain liable unless they prove that the owner/insured was aware or had noticed that the licence was fake and still permitted that person to drive. More importantly, even in such a case the insurance company would remain liable to the innocent third party, but it may be able to recover from the insured. This is the law which has been laid down in Skandia, Sohan Lal Passi and Kamla cases. We are in full agreement with the views expressed therein and see no reason to take a different view"
xxxxx
66. It is nowhere the case of insurance company that any other term or condition of insurance policy was breached/violated by insured. Keeping in view the existence of valid insurance policy, respondent no. 3/insurance company becomes liable to pay the compensation amount, as insurance company is liable to indemnify the insured. Issue no. 2 is decided accordingly.
ISSUE NO. 3 RELIEF
67. In view of my findings on issues no. 1 & 2, following order is passed after relying upon judgment "Oriental Insurance Company Ltd. Vs. Sangeeta Devi & Ors bearing MAC. APP. 165/2011 decided on Ranjita Devi & Ors., Shailendra Kumar, Sayam Behari Vs. Mehar Singh & Ors. Page 39 of 45 MACP Nos. 5074/16,5071/16 & 4903/16; FIR No. 799/14; PS. Alipur DOD: 05.08.2022 22.02.2016.
a) A sum of Rs. 13,04,000/(Rupees Thirteen Lakhs and Fifty Four Thousand only) (after deducting interim award amount of Rs. 50,000/) in MAC Petition No. 5074/16 alongwith interest @ 9% per annum in favour of petitioners and against the respondents w.e.f. date of filing of the petition i.e. 29.11.14 till the date of its realization.
b) A sum of Rs. 3,98,000/(Rupees Three Lakhs and Ninety Eight Thousand only) in MAC Petition No. 5071/16 alongwith interest @ 9% per annum in favour of petitioners and against the respondents w.e.f. date of filing of the petition i.e. 29.11.14 till the date of its realization.
c) A sum of Rs. 35,000/(Rupees Thirty Five Thousand Only) in MAC Petition No. 4903/16 alongwith interest @ 9% per annum in favour of petitioner and against the respondents w.e.f. date of filing of the petition i.e. 29.11.14 till the date of its realization.
Issue no. 3 is decided accordingly.
APPORTIONMENT
68. Statements of petitioners in terms of Clause 29 MCTAP were recorded on 16.03.2020. 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. 5074/16, the petitioner no. 1 Smt. Ranjita Devi shall be entitled to share amount of Rs. 7,00,000/ (Rupees Seven Lakhs Only) alongwith proportionate interest, the Ranjita Devi & Ors., Shailendra Kumar, Sayam Behari Vs. Mehar Singh & Ors. Page 40 of 45 MACP Nos. 5074/16,5071/16 & 4903/16; FIR No. 799/14; PS. Alipur DOD: 05.08.2022 petitioner no. 2 & 3 namely Baby Priyanshi and Master Prince Kumar shall be entitled to share amount of Rs. 2,50,000/each (Rupees Two Lakhs and Fifty Thousand Only) alongwith proportionate interest and the petitioner no. 4 namely Sh. Laxman Thakur shall be entitled to remaining share amount of Rs. 1,54,000/ (Rupees One Lakh and Fifty Four Thousand Only) alongwith proportionate interest.
69. Out of share amount of petitioner no. 1, a sum of Rs. 3,00,000/(Rupees Three Lakhs Only) shall be immediately released to her through her saving bank account no. 4191101000302 with Canara Bank, Bikramganj, Bihar, having IFSC Code CNRB0004191 and remaining amount alongwith interest amount are directed to be kept in the form of FDRs in the multiples of Rs. 25,000/ each for one month, two months, three months and so on and so forth having cumulative interest.
70. The entire share amount of petitioners no. 2 & 3 be kept in FDR for the period till they attain the age of majority and thereafter a sum of Rs. 1,00,000/ each shall be released to them and remaining amount alongwith interest be kept in the form of FDRs in the multiples of Rs. 10,000/ each for a period of one month, two months, three months and so on and so forth, having cumulative interest. The petitioners no. 2 & 3 are at liberty to withdraw monthly interest through their mother in order to meet their educational expenses.
Ranjita Devi & Ors., Shailendra Kumar, Sayam Behari Vs. Mehar Singh & Ors. Page 41 of 45MACP Nos. 5074/16,5071/16 & 4903/16; FIR No. 799/14; PS. Alipur DOD: 05.08.2022
71. The entire share amount of petitioner no.4 is directed to be released to him through his saving bank account no. 461710110011028 with Bank of India, Bikramganj, Bihar, having IFSC Code. BKID0004617.
72. In MACP No. 5071/16, the entire award amount of Rs. 3,98,000/ (Rupees Three Lakhs and Ninety Eight Thousand Only) alongwith interest shall be immediately released to him through his saving bank account no. 38695224508, State Bank of India, NarelaBawana Road, Narela, Delhi, having IFSC Code SBIN0006812.
73. In MACP No. 4903/16, the entire award amount of Rs. 35,000/ (Rupees Thirty Five Thousand Only) alongwith interest shall be immediately released to him through his saving bank account no. 38389340410, State Bank of India, Kundli,Janti Road, having IFSC Code SBIN0050270.
74. All the FDRs to be prepared as per aforesaid directions, shall be subject to the following conditions:
(a) The Bank shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the claimant(s) i.e. the savings bank account(s) of the claimant(s) shall be an individual savings bank account(s) and not a joint account(s).
Ranjita Devi & Ors., Shailendra Kumar, Sayam Behari Vs. Mehar Singh & Ors. Page 42 of 45MACP Nos. 5074/16,5071/16 & 4903/16; FIR No. 799/14; PS. Alipur DOD: 05.08.2022
(b) The original fixed deposit shall be retained by the bank in safe custody. However, the statement containing FDR number, FDR amount, date of maturity and maturity amount shall be furnished by bank to the claimant(s).
(c) The monthly interest be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant(s) near the place of their residence.
(d) The maturity amounts of the FDR(s) be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant(s) near the place of their residence.
(e) No loan, advance, withdrawal or premature discharge be allowed on the fixed deposits without permission of the Court.
(f) The concerned bank shall not to issue any cheque book and/or debit card to claimant(s). However, in case the debit card and /or cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount. The bank shall debit card(s) freeze the account of the claimant(s) so that no debit card be issued in respect of the account of the claimant(s) from any other branch of the bank.
(g) The bank shall make an endorsement on the passbook of the claimant(s) to the effect that no cheque book and/or debit card have been issued and shall not be issued without the permission of the Court and claimant(s) shall produce the passbook with the necessary endorsement before the Court on the next date fixed for compliance.
(h) It is clarified that the endorsement made by the bank alongwith the duly signed and stamped by the bank official on the passbook(s) of the claimant(s) is sufficient compliance of clause(g) above.
(i) The petitioner is directed to open a Motor Accident Claims Annuity (Term) Deposit Account (MACAD) in terms of order dated 07.12.2018 of Hon'ble Justice J.R. Midha in case titled as Rajesh Tyagi and Others Vs. Ranjita Devi & Ors., Shailendra Kumar, Sayam Behari Vs. Mehar Singh & Ors. Page 43 of 45 MACP Nos. 5074/16,5071/16 & 4903/16; FIR No. 799/14; PS. Alipur DOD: 05.08.2022 Jaibir Singh and Others F.A.O No. 842/03 as per clause 31 of MCTAP and form VIII titled as Motor Accident Claims Annuity Deposit (MACAD) Scheme as directed in the said order.
(j) Concerned Manager, SBI, Rohini Court branch is further directed to disburse the FD amount in Motor Accident Claims Annuity Deposit (MACAD) Scheme account as directed by Hon'ble Delhi High Court vide order dated 07.12.18, on completing necessary formalities as per rules.
75. 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 respective amounts of petitioners in their aforesaid saving bank accounts 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. Copy of this award be given dasti to claimants. Copy of this award be also given dasti to counsel for insurance company for compliance. Copy of this award alongwith one photograph each, specimen signatures, copy of bank passbooks and copy of residence proof of both the petitioners, be sent to Nodal Officer of SBI, Rohini Court, Branch, Delhi for information and necessary compliance. Form XV, XVI & XVII 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 Ranjita Devi & Ors., Shailendra Kumar, Sayam Behari Vs. Mehar Singh & Ors. Page 44 of 45 MACP Nos. 5074/16,5071/16 & 4903/16; FIR No. 799/14; PS. Alipur DOD: 05.08.2022 copy of this Award be placed on the judicial record of MAC Petition No. 5071/16 & 4903/16 as per the rules.
Announced in the open Court on 05.08.2022 (VINOD YADAV) Judge MACT2 (North) Rohini Courts, Delhi Certified that above award contains 45 pages and each page is signed by me.
(VINOD YADAV) Judge MACT2 (North) Rohini Courts, Delhi Ranjita Devi & Ors., Shailendra Kumar, Sayam Behari Vs. Mehar Singh & Ors. Page 45 of 45