Delhi District Court
Smt. Heera And Others vs Mohd. Saleem And Others on 25 September, 2023
IN THE MOTOR ACCIDENT CLAIMS TRIBUNAL,
NORTH WEST, ROHINI COURTS, DELHI
PRESIDED BY SH. GAGANDEEP JINDAL,
==============================================
UID No. / CNR No. DLNW01-000254-2018 MACT CASE No. 51/ 2018 FIR No. 427/ 16, PS Sadar Bahadurgarh In the matter of :
1. Smt. Heera (Wife of deceased) W/o Late Saleem R/o Jhuggi No. 42, Khubram Park, Prem Nagar-1, Nangloi Gate, Kirari Suleman Nagar, Delhi-86.
2. Miss Gul Afnsha (Daughter of deceased) D/o Late Saleem R/o Jhuggi No. 42, Khubram Park, Prem Nagar-1, Nangloi Gate, Kirari Suleman Nagar, Delhi-86.
3. Julekha (Daughter of deceased) D/o Late Saleem R/o Jhuggi No. 42, Khubram Park, Prem Nagar-1, Nangloi Gate, Kirari Suleman Nagar, Delhi-86.
4. Ikbal (Son of deceased) S/o Late Saleem R/o Jhuggi No. 42, Khubram Park, Prem Nagar-1, Nangloi Gate, Kirari Suleman Nagar, Delhi-86.
5. Ms. Rukhsar (Daughter of deceased) D/o Late Saleem R/o Jhuggi No. 42, Khubram Park, Prem Nagar-1, Nangloi Gate, Kirari Suleman Nagar, Delhi-86.
MACT Case No. 51/2018 (FIR no. 427/16) Heera & Ors. V. Mohd. Saleem & Ors.
Page no. 1 of 22
6. Miss Karishma (Daughter of deceased) D/o Late Saleem R/o Jhuggi No. 42, Khubram Park, Prem Nagar-1, Nangloi Gate, Kirari Suleman Nagar, Delhi-86.
.....Petitioners Vs.
1. Mohd. Saleem S/o Sh. Habib R/o Village-Mulawas, Mohalla Koshi Kalan, District-Mathura, UP.
....Driver/R1
2. Mohd. Naim S/o Late Mohd. Yusuf R/o H. No. 121, Behind Delight Cinema, Rakbganj, Dariyaganj, New Delhi-02.
....Owner/R2
3. M/s Shriram General Insurance Co. Ltd., R/o B-08, Unit No. 402 & 403, GD ITL Tower, Netaji Subhash Place, Pitampura, Delhi-34.
....Insurer/R3
Date of institution of the DAR : 08.01.2018
Date of final Arguments : 11.09.2023
Date of Decision : 25.09.2023
Appearance (s) : Sh. Krishan Kumar, Ld. Counsel for petitioner.
R1 and R2 already ex-parte.
Sh. Ravi Gupta, Ld. Counsel for R3
J U D G M E NT /AWAR D
1. Vide this judgment/award, I shall dispose off the present claim petition filed U/s 166 and 140 of Motor Vehicle Act, 1988 (in MACT Case No. 51/2018 (FIR no. 427/16) Heera & Ors. V. Mohd. Saleem & Ors.
Page no. 2 of 22 short, the MV Act) filed by LRs of deceased Saleem namely Smt. Heera, Gul Afnsha, Julekha, Ikbal, Miss Rukhsar and Miss Karishma.
FACTUAL POSITION AND PLEADINGS
2. The brief facts relevant for disposal of the present petition are that on 27.08.2016, the deceased alongwith other persons were carrying two buffaloes and three calves in TATA Truck 407 bearing no. DL-01LR-3420 (in short "the offending truck") from a village in Rohtak for sale in Ghazipur Mandi, Delhi. When they reached near Old Police Chowki Ashoda, Bahadurgarh, Haryana at NH-10, due to high speed of the vehicle, front wheel hit the divider of the road and suddenly derailed and overturned. The offending truck was being driven by respondent no. 1 in rash and negligent manner. The deceased was sitting in the cabin alongwith other deceased and injured persons. Petitioner sustained serious injuries and was declared dead in PGIMS Rohtak Haryana.
3. It is further submitted that respondent no. 2 is the owner of the vehicle. The vehicle was insured with respondent no. 3 at the time of accident. An FIR No. 427 dated 28.08.2016, PS Sadar, Bahadurgarh, Dist. Jhajjar, Haryana was registered U/s 279/337/304A IPC.
4. It is further submitted that petitioners were totally dependant on the deceased as he was the sole bread earner of the family. Deceased was doing business of sale and purchase of cattle/ livestock in the area of NCR Delhi and was earning Rs. 24,000/- per MACT Case No. 51/2018 (FIR no. 427/16) Heera & Ors. V. Mohd. Saleem & Ors.
Page no. 3 of 22 month at the time of accident. Deceased was a young person aged about 42 years at the time accident and could work for another 38 years. Petitioners have claimed a total compensation of Rs. 26.00 lakhs.
5. No Written statement has been filed on behalf of respondent no.1 and respondent no.2.
6. Respondent no. 3/ Insurance Company, in its written statement has submitted that the present petition is not maintainable as the offending vehicle was being driven by the driver without license. Therefore, respondent no. 3 is not liable to pay compensation to the petitioners. It is further submitted that the offending vehicle was carrying cattle without a valid license. It is also submitted that driver was in collusion with the injured/ petitioners and was driving the vehicle at a very high speed. Petitioner has not filed any document of his income therefore, he is not entitled for compensation of Rs. 29.80 Lakhs.
ISSUES:
7. After completion of pleadings, issues were framed by this Tribunal on 13.08.2018. PW-1 tendered her evidence by way of affidavit on 19.12.2018. Her further examination-in-chief was deferred for want of original documents. On 04.03.2020, Counsel for Insurance Company informed that there is a breach in condition of Insurance Police for which liability may be shifted to Owner and Driver. Vide order dated 23.03.2022, the opportunity to file reply on behalf of respondent no. 1 and 2 was closed and following issues MACT Case No. 51/2018 (FIR no. 427/16) Heera & Ors. V. Mohd. Saleem & Ors.
Page no. 4 of 22 were again framed : -
1. Whether deceased Sh. Saleem S/o Late Sh. Munshi expired due to injuries suffered in road traffic accident on dt. 27.08.2016 at about 10:00 PM, National Highway-10, near old Police Chowki Ashoda, Bahadurgarh, Haryana due to rash and negligent driving of offending vehicle i.e. truck bearing no. DL-01LR-3420 which was being driven by driver Md. Saleem S/o Sh. Habib on the said date, time and place ? OPP.
2. Whether the petitioner is entitled for compensation, if so, to what amount and from whom? OPP.
3. Relief.
PETITIONER'S EVIDENCE
8. In order to prove their case, petitioners have examined petitioner no. 1 as PW-1, who has deposed in terms of her affidavit of evidence Ex. PW-1/AA and has relied on following documents on 08.01.2020:
i. Copy of Adhaar Card of deceased Saleem as Ex.PW-
1/1 (OSR).
ii. Copy of her Aadhar Card as Ex.PW-1/2 (OSR). iii. Copy of RC of Offending vehicle (attested copy in connected case) as Ex.PW-1/3.
iv. Copy of Insurance of Offending Vehicle (attested copy in connected case) site plan as Ex.PW-1/4. v. Copy of DL of accused (Attested copy in connected case) as Ex.PW-1/5.
vi. Copy of Rukka (Attested copy in connected case) as Ex.
PW 1/6.
vii. Copy of Site Plan (Attested copy in connected case) as Ex. PW 1/7.
viii. Copy of post-mortem report as Ex. PW 1/8.
MACT Case No. 51/2018 (FIR no. 427/16) Heera & Ors. V. Mohd. Saleem & Ors.
Page no. 5 of 22
9. In her cross-examination, PW-1 testified that she is not the eye-witness and she has not filed any income proof of her deceasd husband.
10. No other witness has been examined on behalf of petitioners.
RESPONDENT'S EVIDENCE:
11. Respondent no. 3/ Insurance company has examined Sh. Parth Arya as R3W1 who tendered his evidence by way of affidavit Ex. R3W1/A. He relied upon the following documents:
i. Copy of Insurance Policy as Ex. R3W1/1. ii. Copy of notice U/o XII Rule 8 CPC as Ex. R3W1/2. iii. Postal receipts as Ex. R2W1/3 to Rx. R3W4. iv. Postal tracking reports marks as R3W1/5 and R2W1/6.
12. I have heard ld. Counsel for the petitioner and respondent no. 3 and have gone through the testimony o f t h e w i t n e s s e s , the pleadings and the documents. My issue wise findings in the case are as under :-
ISSUE NO.1
1. Whether deceased Sh. Saleem S/o Late Sh. Munshi expired due to injuries suffered in road traffic accident on dt. 27.08.2016 at about 10:00 PM, National Highway-10, near old Police Chowki Ashoda, Bahadurgarh, Haryana due to rash and negligent driving of offending vehicle i.e. truck bearing no. DL-01LR-3420 which was being driven by driver Md. Saleem S/o Sh. Habib on the said date, time and place ? OPP.
13. It is well settled that the procedure followed for proceedings MACT Case No. 51/2018 (FIR no. 427/16) Heera & Ors. V. Mohd. Saleem & Ors.
Page no. 6 of 22 conducted by an accident tribunal is similar to that followed by a civil court and in civil matters the facts are required to be established by preponderance of probabilities only and not by strict rules of evidence or beyond reasonable doubts as are required in a criminal prosecution. The burden of proof in a civil case is never as heavy as that is required in a criminal case, but in a claim petition under the Motor Vehicles Act, this burden is infact even lesser than that in a civil case. Reference in this regard can be made to the propositions of law laid down by the Hon'ble Supreme Court in the case of Bimla Devi and others Vs. Himachal Road Transport Corporation and others, reported in (2009) 13 SC 530, which were reiterated in the subsequent judgment in the case of Parmeshwari Vs. Amir Chand and others 2011 (1) SCR 1096 (Civil Appeal No.1082 of 2011) and also recently in another case Mangla Ram Vs. Oriental Insurance Co. Ltd. & Ors., 2018 Law Suit (SC) 303.
14. Petitioners have examined only PW-1 to prove the rash and negligent driving of respondent no. 1. PW-1, in her cross- examination has admitted that she is not eye-witness of the accident. No other witness has been examined by the petitioner in this case.
15. The Hon'ble High Court of Delhi in matter "National Insurance Company Ltd. Vs. Smt. Pushpa Rana & ors." 2009 ACJ 287 has held/observed as under:-
"11. The last contention of the appellant insurance company is that the respondents claimants should have MACT Case No. 51/2018 (FIR no. 427/16) Heera & Ors. V. Mohd. Saleem & Ors.
Page no. 7 of 22 proved negligence on the part of the driver and in this regard the counsel has placed reliance on the Judgment of the Hon'ble Supreme Court in Oriental Insurance Co. Ltd. v. Meena Variyal. On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced
(i) certified copy of the criminal record of criminal case in FIR NO. 955/2004, pertaining to involvement of the offending vehicle, (ii) criminal record showing completion of investigation of police and issue of charge sheet under Section 279/304-A, IPC against the driver; (iii) certified copy of FIR, wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of the deceased.
These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under Motor Vehicles Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Nathu Ram & Ors.vs. Neetu Bhasin & Ors. [MACT No.27/2019] Page No.11 of 29Hence, this contention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on the part of the driver.
16. In view of the abovecited case law, it is clear that the Motor Accident Claims Tribunals only hold inquiry for determination of compensation on occurrence of an accident and they do not sit in a suit or adversarial lis in traditional sense. The factum of the driver of offending vehicle being chargesheeted by police after investigation of the criminal matter is also prima facie sufficient to infer that he was negligent and responsible for the incident in question. A Tribunal can certainly rely upon the records of the case of criminal matter to reach such a conclusion.
17. The tribunal also considers the testimony of one eye-witness namely Harun @ Arun who has been examined in MACT No. 49/2018 and sustained injuries in the same accident. He deposed that MACT Case No. 51/2018 (FIR no. 427/16) Heera & Ors. V. Mohd. Saleem & Ors.
Page no. 8 of 22 accident took place on 27.08.2016, at about 10:00 AM, at Police Chowki, Ashoda, Bahadurgarh, Haryana due to rash and negligent driving at high of offending vehicle by respondent no. 1. Due to wrong turn at high speed, the front wheel of the offending vehicle hit the divider and overturned.
18. Deceased after accident was taken to PT. BD Sharma PGIMS Hospital, Rohtak where he was declared dead. The testimony of Sh. Harun @ Arun against the respondent no.1 is corroborated by the documentary evidence that respondent no.1 was present at the spot and driving the offending vehicle at the time of accident. Therefore, the case does not warrant any other best evidence. Keeping in view the facts & evidence produced by the petitioner, it has proved on record that the said accident has taken place due to the rash and negligent driving of the offending vehicle being driven by respondent no.1, as a result of which, the petitioner sustained injuries.
19. The FIR has been lodged against the respondent no.1 and he has faced criminal charges of causing death and injuries by rash and negligent driving in the said accident.
20. Besides the above, R-1 himself was the best witness who could have stepped into the witness box to challenge the depositions being made by PW-1 regarding the above accident and its manner etc., but he has not done so. Therefore, an adverse inference on this MACT Case No. 51/2018 (FIR no. 427/16) Heera & Ors. V. Mohd. Saleem & Ors.
Page no. 9 of 22 aspect is also required to be drawn against the respondents in view of the law laid down in case of Cholamandalam M.S. General Insurance Company Ltd. Vs. Kamlesh, reported in 2009 (3) AD (Delhi) 310.
21. In view of the aforesaid discussion and the evidence which has come on record, it is held that the rashness and negligence on the part of driver of the offending vehicle, which is clearly visible and as such, was responsible not only for this accident, but also for everything that followed thereafter. Accordingly issue no.1 is decided in favour of the petitioner and against the respondents.
ISSUE NO. 22. Whether the petitioner is entitled for compensation, if so, to what amount and from whom? OPP.
22. As this Tribunal has already held that R1 was responsible for the death of the deceased due to his neglect and default in driving the offending vehicle at the relevant time. Therefore, the petitioners have become entitled to be compensated for death of deceased in the above accident, but computation of compensation and liability to pay the same are required to be decided.
COMPENSATION
23. Basically only three facts need to be established by the claimants for assessing compensation in the case of death :
(a) age of the deceased;
(b) income of the deceased; and the
(c) the number of dependents.
MACT Case No. 51/2018 (FIR no. 427/16) Heera & Ors. V. Mohd. Saleem & Ors.
Page no. 10 of 22
24. The issues to be determined by the Tribunal to arrive at the loss of dependency are
(i) additions/deductions to be made for arriving at the income;
(ii) the deduction to be made towards the personal living expenses of the deceased; and
(iii) the multiplier to be applied with reference of the age of the deceased.
25. If these determinants are standardized, there will be uniformity and consistency in the decisions. There will be lesser need for detailed evidence. In this regard, though not quoted, reliance is placed upon, Sarla Verma & Ors. v. Delhi Transport Corporation & Anr. (2009) 6 SCC 121.
26. As already stated above, the claimant/petitioner no.1 is the wife, petitioner no.2, 3, 5 and 6 are daughters of deceased and petitioner no. 4 is the son of deceased. PW1 deposed that the Deceased was doing business of sale and purchase of cattle/ livestock in the area of NCR Delhi and was earning Rs. 24,000/- per month at the time of accident. In her cross-examination, PW-1 has admitted that she has not filed any income proof of her deceased husband on record.
27. Therefore, the income of the deceased, as on the date of the accident, has been treated as that of "unskilled person". Therefore, MACT Case No. 51/2018 (FIR no. 427/16) Heera & Ors. V. Mohd. Saleem & Ors.
Page no. 11 of 22 on the date of accident i.e 27.08.2016, the minimum wages of unskilled labour in Delhi is Rs. 9,568/- per month.
28. The ld. Counsel for the petitioners further argued that future prospects should also be awarded to the petitioners as per law. Ld. Counsel for the petitioners has submitted that the deceased was the sole earning member of the family and all the petitioners/claimants were dependent upon him for their livelihood. The ld. Counsel for the petitioners further argued that future prospects should also be awarded to the petitioners as per law.
29. Accordingly, on the basis of Aadhar Card Ex. PW-1/2 of deceased, age of the deceased is taken as 41 years as on the date of accident. Hence, the multiplier of "15" would be applicable in view of pronouncement made in case titled as Sarla Verma (supra).
30. Considering the fact that deceased was aged about 40 years of age at the time of accident and was not having a permanent job at that time, future prospects @ 25% has to be awarded in favour of petitioners in view of recent pronouncement made by Constitutional Bench of Apex Court in the case titled as National Insurance Company Ltd. v. Pranay Sethi & Ors., (2017) 16 SCC 680, as well as in view of recent decision of Hon'ble Delhi High Court in appeal Bajaj Allianz General Insurance Company Ltd. Vs. Pooja & Ors, in MAC APP No. 798/2011.
MACT Case No. 51/2018 (FIR no. 427/16) Heera & Ors. V. Mohd. Saleem & Ors.
Page no. 12 of 22
31. The deceased was married and there are six claimants/ dependants upon him. Thus, there are six dependants and there has to be deduction of "one fourth (1/4)", as per the mandate of Sarla Verma (supra). Thus, total loss of dependency would come out as under:
S. Head Amount Remarks
No (Rs.)
.
1 Monthly Income of deceased 9,568/-
(A)
3 Less: Personal expenses of 2,392/- (A)/ 4= (B)
deceased @ one fourth (1/4)
(B)
4 Monthly loss of dependency 7,176/- [(A)-(B)]=(C)
(C)
5 Annual Loss of dependency 86,112/- (C) x 12 = (D)
(D)
6 Multiplier @ 15 12,91,680/- (D) x 15
(E) (multiplier) =
(E)
7 Add: Future Prospects @ 25% 3,22,920/- (E) X 25%
(E)
Total 16,14,600/-
Rounded Off to: 16,14,600/-
LOSS OF LOVE & AFFECTION
32. After the judgment passed in National Insurance Company Ltd. v. Pranay Sethi & Ors. (supra) and recent judgment titled as New India Assurance Company Limited v. Somwati & Ors., Civil Appeal no. 3093 of 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. MACT Case No. 51/2018 (FIR no. 427/16) Heera & Ors. V. Mohd. Saleem & Ors.
Page no. 13 of 22 Pooja & Ors, (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 non-pecuniary head of damages. Hence, no amount of compensation is being awarded under this head.
LOSS OF CONSORTIUM
33. In view of the judgment of Hon'ble Supreme Court in case titled as, "New India Assurance Company Limited v. Somwati & Ors.", Civil Appeal No.3093 of 2020, dated 07.09.2020, I am of the considered opinion that the wife, and children of deceased are entitled for payment of Rs.40,000/- each towards loss of consortium. Consequently, a sum of Rs.2,40,000/- (Rs.40,000/- x 6) is awarded to the petitioners under this head.
LOSS OF ESTATE & FUNERAL EXPENSES
34. 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/- is awarded in favour of petitioners on account of loss of estate and a sum of Rs. 15,000/- is awarded in favour of petitioners on account of funeral expenses. Thus, the total compensation is assessed as under:
S. No. Head Amount (Rs.)
1 Loss of dependency 16,14,600/-
2 Loss of Consortium (Rs.40,000 x 6) 2,40,000/-
MACT Case No. 51/2018 (FIR no. 427/16)
Heera & Ors. V. Mohd. Saleem & Ors.
Page no. 14 of 22
3 Loss of Estate & Funeral Expenses 30,000/-
(@ 15,000/- each)
TOTAL 18,84,600/-
35. Hence, the petitioners are awarded total compensation of Rs. 18,84,800/- (Rupees Eighteen Lakh Eighty Four Thousand and Eight Hundred Only).
36. Ld. Counsel for Insurance Company argued that LRs of deceased are not entitled for compensation as deceased was travelling as a gratuitous passenger in the offending vehicle which is a goods vehicle. He further argued that insurance company has examined R3W1 Sh. Parth Arya to prove this defence.
37. R3W1 deposed that the deceased was sitting in the cabin of alleged offending vehicle i.e. goods carrying vehicle at the time of accident which was not authorized for carrying seven passengers including driver. Therefore, the deceased was travelling as a gratuitous passenger in the offending vehicle and therefore, insurance company is not liable to pay compensation to the LRs of deceased.
38. On the other hand, Ld. Counsel for petitioner argued that as per the law laid down by Hon'ble Supreme Court of India in various judgments, the Insurance Company cannot deny to pay compensation on the ground that injured/ petitioner was traveling as a gratuitous passenger in a goods vehicle though, it can recover the MACT Case No. 51/2018 (FIR no. 427/16) Heera & Ors. V. Mohd. Saleem & Ors.
Page no. 15 of 22 compensation paid to the petitioner from the driver/ owner of the offending vehicle. He has relied upon the following judgments:
i. Balu Krishna Chavan Vs. Reliance General Insurance Company Ltd. And Ors. (2023) 1 RCR Civil 513; ii. Shivaraj Vs. Rajendra (2018) AIR (SC) 4252; iii. Manuara Khatun Vs Rajesh Kumar Singh (2017) AAC 989;
iv. National Insurance Company Ltd. Vs. Hasnu and Ors.
(2011) ACJ 123 decided by Hon'ble High Court of Delhi;
v. Orissa Cooperative Insurance Society Ltd. Vs. Santosh Gupta (1997), 2 ACC 276 decided by Hon'ble High Court of Delhi.
39. In the case of Shivaraj Vs. Rajendra (supra), the Hon'ble Apex Court of India has directed the Insurance Company to pay the compensation amount to the claimant/ (gratuitous passenger) with the liberty to claim the same from the driver. Therefore, the respondent no.3 / Insurance company cannot escape its liability to pay compensation to the petitioner, though, it can recover the same from the respondent no. 1/ driver and respondent no.2/ owner of the offending vehicle.
40. Ld. Counsel for R-3/ Insurance Company further argued that R1 was driving the offending vehicle without having any valid driving license in violation of terms and conditions of Insurance Company. Therefore, insurance company is not liable to pay any MACT Case No. 51/2018 (FIR no. 427/16) Heera & Ors. V. Mohd. Saleem & Ors.
Page no. 16 of 22 compensation to the petitioner.
41. The Hon'ble Supreme Court of India in case reported as National Insurance Company Limited v. Swaran Singh & Ors. (2004) 3 SCC 297, has been pleased to observe that the insurer had to indemnify the compensation amount payable to the third party and the insurance company may recover the same from the insured. Doctrine of "pay and recover" was considered by the Hon'ble Supreme Court in Swaran Singh (supra), wherein the Hon'ble Supreme Court examined the liability of the insurance company in cases of breach of policy condition due to disqualifications of the driver or invalid driving license of the driver and held that in case of third party risks, the insurer has to indemnify the compensation amount to the third party and the insurance company may recover the same from the insured. Elaborately considering the insurer's contractual liability as well as statutory liability visavis the claims of third parties, the Hon'ble Supreme Court issued detailed guidelines as to how and in what circumstances, "pay and recover" can be ordered. In para (110) of the said judgment, the Hon'ble Supreme Court summarized its conclusions as under:
xxxxx "110. The summary of our findings to the various issues as raised in these petitions is as follows:
(i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against thirdparty risks is a social welfare MACT Case No. 51/2018 (FIR no. 427/16) Heera & Ors. V. Mohd. Saleem & Ors.
Page no. 17 of 22 legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object.
(ii) An insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988, inter alia, in terms of Section 149(2)(a)(ii) of the said Act.
(iii) The breach of policy condition e.g. disqualification of the driver or invalid driving licence of the driver, as contained in subsection (2)(a)
(ii) of Section 149, has to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licensed driver or one who was not disqualified to drive at the relevant time.
(iv) Insurance companies, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish "breach" on the part of the owner of the vehicle; the burden of proof wherefore would be on them,
(v) The court cannot lay down any criteria as to how the said burden would be discharged, inasmuch as the same would depend upon the facts and circumstances of each case.
(vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards the insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insurer under Section 149(2) of the Act.
(vii) The question, as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver (a fake one or otherwise), does not fulfill the requirements of law or not will MACT Case No. 51/2018 (FIR no. 427/16) Heera & Ors. V. Mohd. Saleem & Ors.
Page no. 18 of 22 have to be determined in each case.
(viii) If a vehicle at the time of accident was driven by a person having a learner's licence, the insurance companies would be liable to satisfy the decree.
(ix) The Claims Tribunal constituted under Section 165 read with Section 168 is empowered to adjudicate all claims in respect of the accidents involving death or of bodily injury or damage to property of third party arising in use of motor vehicle. The said power of the Tribunal is not restricted to decide the claims inter se between claimant or claimants on one side and insured, insurer and driver on the other. In the course of adjudicating the claim for compensation and to decide the availability of defence or defences to the insurer, the Tribunal has necessarily the power and jurisdiction to decide disputes inter se between the insurer and the insured. The decision rendered on the claims and disputes inter se between the insurer and insured in the course of adjudication of claim for compensation by the claimants and the award made thereon is enforceable and executable in the same manner as provided in Section 174 of the Act for enforcement and execution of the award in favour of the claimants.
(x) Where on adjudication of the claim under the Act the Tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with subsection (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the Tribunal. Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the Tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by sub section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the Tribunal.
(xi) The provisions contained in subsection (4) with the proviso there under and subsection (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover the amount paid under the contract of insurance on behalf of the insured can be taken recourse to by the Tribunal and be extended to claims and defences of the insurer against the insured by relegating them to the MACT Case No. 51/2018 (FIR no. 427/16) Heera & Ors. V. Mohd. Saleem & Ors.
Page no. 19 of 22 remedy before regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims." xxxxx
42. The Hon'ble Supreme Court has further been pleased to reiterate the aforesaid legal position in case reported as, Shamanna & Anr. v. The Divisional Manager, The Oriental Insurance Company Limited & Ors., Civil Appeal No.8144/2018. The upshot of the settled legal position on the issue aforesaid is that respondent No.3/insurance company cannot shake off its liability to pay compensation merely by taking the plea that at relevant point of time, the offending vehicle was being driven by respondent no. 1 without having valid driving license. In this petition also, it is mentioned that the offending vehicle was being driven without having any valid driving license. This is clear breach of the insurance policy issued by insurance company. If the insurance company is made liable to pay any amount, it can recover the entire amount paid to the third party on behalf of insured.
43. Therefore, in view of the above discussion, respondent No.3/insurance company is liable to pay compensation/Award amount to the claimants/petitioners with a right to recover the same from the respondents No.1 and respondent no.2 jointly and severally. Issue No.2 is decided accordingly.
MACT Case No. 51/2018 (FIR no. 427/16) Heera & Ors. V. Mohd. Saleem & Ors.
Page no. 20 of 22 ISSUE No. 3/ RELIEF:
44. In view of the aforesaid discussion, this tribunal awards compensation of Rs. 18,84,800/- (Rupees Eighteen Lakh Eighty Four Thousand and Eight Hundred Only) alongwith interest @ 9% per annum w.e.f the date of filing of the claim petition, i.e. 08.01.2018 till the date of its realization in favour of petitioners.
APPORTIONMENT
45. It is noted that statement of the petitioners namely Smt. Heera, Gul Afnsha, Julekha, Ikbal, Miss Rukhsar and Miss Karishma. in terms of Clause 26 MCTAP was not recorded, therefore, the apportionment is withheld.
46. Respondent no. 3/ Insurance Company is directed to deposit the Award amount in the MACT Account no. 40723743243 in SBI, Rohini Court Branch within 30 days as per above order, failing which he shall be liable to pay interest @ 9% p.a for the period of delay. Copy of the award be given dasti to petitioner/claimant as well as respondent no. 3.
47. Form V and IVB in terms of MCTAP are annexed herewith as Annexure-A. A separate file be prepared for compliance report by the Nazir and put up the same on 25.10.2023.
File be consigned to record room after due compliance.
MACT Case No. 51/2018 (FIR no. 427/16) Heera & Ors. V. Mohd. Saleem & Ors.
Page no. 21 of 22
ANNOUNCED IN THE OPEN COURT
ON 25th DAY OF SEPTEMBER, 2023 Digitally signed by
GAGANDEEP
GAGANDEEP JINDAL
JINDAL Date: 2023.09.25
14:49:52 +0530
(GAGANDEEP JINDAL)
ADJ-1+MACT, NORTH WEST,
ROHINI COURTS, DELHI
MACT Case No. 51/2018 (FIR no. 427/16)
Heera & Ors. V. Mohd. Saleem & Ors.
Page no. 22 of 22