Delhi District Court
Sh. Khem Chand vs Sh. Hosiyar Singh on 25 April, 2018
MACP No. 5355/16 (Old No. 26/09) FIR No. 150/09.; PS NSG, Gurgaon, Haryana DOD: 25.04.2018
IN THE COURT OF SH. VIDYA PRAKASH, PRESIDING OFFICER,
MOTOR ACCIDENT CLAIMS TRIBUNAL, ROHINI COURTS, DELHI
MAC Petition No. 5355/16 (Old MAC Petition No. 26/09)
1. Sh. Khem Chand
S/o Sh Amar Chand
(Father of deceased Kapil Kumar Aggarwal)
2. Smt. Suman Lata
W/o Sh Khem Chand Aggarwal
(Mother of deceased Kapil Kumar Aggarwal)
3. Sh. Amit Kumar
S/o Sh Khem Chand Aggarwal
(Brother of deceased Kapil Kumar Aggarwal)
4. Sh. Amar Chand Aggarwal
S/o Late Sh. Brij Mohan
(Grand father of deceased Kapil Kumar Aggarwal)
(Since expired and his name deleted from the array of parties)
All R/o: House no. 475, Block B3,
Sultan Puri, Delhi86.
................Petitioners
VERSUS
1. Sh. Hosiyar Singh
S/o Sh. Murlidhar
R/o Dhokal Nagar,
Mundawar, Alwar,
Rajasthan, (Driver of Trolla No. HR55G9003)
2. Sh. Jitender Kumar
S/o Sh. Mohar Singh
R/o Village Lal Pur,
Tehsil Kot Kasim, Distt. Alwar,
Rajasthan (Owner of vehicle Trola No. HR55G9003)
3. Reliance General Insurance Company Ltd.
Office at: 19, Reliance Centre,
Walchand Hari Chand Marg,
Khem Chand & Ors. Vs. Hosiyar Singh & Ors. Page 1 of 20
MACP No. 5355/16 (Old No. 26/09) FIR No. 150/09.; PS NSG, Gurgaon, Haryana DOD: 25.04.2018
Ballard Estate, Mumbai. (Insurer of Trolla No. HR55G9003)
4. Sh Deep Chand
S/o Sh. Khairati Lal
R/o Village Thana Raja Ji,
PS Rajgarh, Distt. Alwar,
Rajasthan.
(Driver of Truck No. HR38C7866)
5. Sh Naveen Ghai
S/o Not Known
R/o E38, Raj Garh Industrial Area,
District Alwar, Rajsthan.
(Owner of Truck No. HR38C7866)
6. National Insurance Company Ltd.
Division Office, 28, Scop Minar,
11th Floor, Core2, District Centre,
North Tower, Laxmi Nagar,
Delhi92.
(Insurer of Truck No. HR38C7866)
...............Respondents
Date of Institution : 05.10.2009 Date of Arguments : 10.04.2018 Date of Decision : 25.04.2018 APPEARANCES: Sh. Uday Parsad Adv for petitioners.
Respondents No. 1,2,4 and 5 are exparte.
Sh. A.K Singh Adv for respondent no. 3.
Sh. R.K Gupta, Adv for respondent no. 6.
Petition under Section 166 & 140 of M.V. Act, 1988 for grant of compensation AWARD
1. Sh. Kapil Kumar Aggarwal had suffered fatal injuries in Motor Vehicular Accident which occurred in the intervening night of 2021.07.2009 at about 1.30 am involving Trolla bearing registration no. HR55G9003 & Truck bearing registration no. HR38C7866 (alleged offending vehicles) allegedly being driven in rash and negligent manner and at very fast speed Khem Chand & Ors. Vs. Hosiyar Singh & Ors. Page 2 of 20 MACP No. 5355/16 (Old No. 26/09) FIR No. 150/09.; PS NSG, Gurgaon, Haryana DOD: 25.04.2018 by respondents no. 1 and 4 respectively.
2. By way of present claim petition, the petitioners are seeking compensation to the tune of Rs. 50,00,000/ alongwith interest @ 24% p.a. against the respondents on the averments that on the intervening night of 20/21.07.2009, Kapil Kumar Aggarwal (since expired) alongwith three other persons were coming in Santro Car bearing registration no. DL8CS3011 from Jaipur to Delhi. At about 1.30 AM, when they reached at Manesar Ghati Road, near NSG, suddenly, one Trolla bearing registration no.HR55G9003 being driven by respondent no. 1 at high speed; in a rash and negligent manner; without taking necessary precautions, without proper lookouts and violating the traffic rules, came from behind and hit against their aforesaid car, which was being driven by deceased. It is further averred that one truck no. HR38C7866 was going ahead of their said Santro Car. Due to the impact of accident, the Santro Car dashed against Truck no. HR38C7866 moving ahead of it and consequently, the said car was sandwiched between Truck no. HR38C7866 and Trolla bearing registration no. HR55G9003. The car caught fire and all the persons travelling in the said car including Kapil Kumar Aggarwal, sustained fatal injuries. It is further averred that Kapil Kmar Aggarwal died at the spot. It is further claimed that both the aforesaid vehicles were owned by respondents no. 2 & 5 respectively and were insured with Reliance General Insurance Company Ltd./respondent no. 3 and with National Insurance Co Ltd/respondent no. 6 respectively during the period in question. It is further averred that deceased was aged about 21 years; he was studying in BE Electronics & Communication Engineering and also used to take tuition classes of Class 11 th and 12th students and was earning Rs. 10,000/ per month at the time of accident.
3. The respondents no. 1 & 2 i.e. the driver & registered owner of Trolla vehicle bearing registration no. HR55G9003 have filed their joint WS, wherein they have denied the factum of accident as well as the factum of Khem Chand & Ors. Vs. Hosiyar Singh & Ors. Page 3 of 20 MACP No. 5355/16 (Old No. 26/09) FIR No. 150/09.; PS NSG, Gurgaon, Haryana DOD: 25.04.2018 involvement of said vehicle in any such accident. They have claimed that the accident if any has taken place due to sole negligence and careless driving on the part of driver of Santro Car No. DL8CS3011 and that of truck no. Truck no. HR38C7866. It is further claimed that the respondent no. 1 was having valid and effective DL in respect of heavy transport vehicle having validity from 26.08.08 to 25.06.11 issued by Licensing Authority, Alwar and respondent no. 2 had satisfied himself while employing R1 as driver that R1 was having genuine DL in respect of such vehicle and was having good experience of driving such vehicles. It is further claimed that the alleged offending Trolla bearing registration no. HR55G9003 was having valid National Route Permit w.e.f 01.04.08 to 27.02.13 issued by RTA, Gurgaon and the said vehicle was duly insured with R3 for the period in question. Hence, they are not liable to pay any compensation amount and it is respondent no. 3 alone which is liable to pay the compensation amount if any to the petitioners. On merits, they have simply denied the averments made in the claim petition and have prayed for dismissal of the same.
4. Respondent no. 3/Insurer of Trolla bearing registration no. HR55G9003 has filed its WS, wherein it has raised statutory defence as provided in Section 149(2) M.V Act by claiming that the said vehicle was not being plied with valid permit at the time of accident and there has been breach in the terms and conditions of insurance policy on the part of insured. However, it has admitted that the said vehicle was insured in the name of Sh. Jitender Kumar (R2) for the period in question. On merits, the averments made in the claim petition have been simply denied for want of knowledge.
5. The respondents no. 4 & 5 i.e. the driver & registered owner of Truck bearing registration no. HR38C7866 have filed their joint WS, wherein they have raised preliminary objections that the petitioners have concealed the material facts and have filed the claim petition to extort money from them. Alternatively, they have claimed that the said vehicle was duly insured Khem Chand & Ors. Vs. Hosiyar Singh & Ors. Page 4 of 20 MACP No. 5355/16 (Old No. 26/09) FIR No. 150/09.; PS NSG, Gurgaon, Haryana DOD: 25.04.2018 with respondent no. 6 and respondent no. 4 was having valid DL at the time of accident. They have also disputed the factum of accident as well as the factum of involvement of said vehicle in any such accident. On merits, they have simply denied the averments made in the claim petition.
6. The respondent no. 6/insurer of Truck no. HR38C7866 has filed its WS, wherein it has also raised statutory defence as provided in Section 149(2) M.V Act by claiming that there has been breach in the terms and conditions of insurance policy on the part of insured. It has also raised an objection that the petition is bad for nonjoinder of driver, owner and insurer of Santro Car No. DL8CS3011 and it is also bad for misjoinder of driver, owner and insurer of Truck no. HR38C7866. On merits, it has simply denied the averments made in the claim petition. However, it has admitted that the aforesaid vehicle was duly insured in the name of M/s. Ghai Minerals Industries from 21.12.09 to 20.12.10.
7. Before proceeding further, it may be noted that respondents no. 1,4 and 5 stopped appearing during the course of inquiry and consequently, they were proceeded against exparte on 27.02.12. Similarly, respondent no. 2 also stopped appearing during the course of inquiry and he was also proceeded exparte on 05.03.12.
8. From pleadings of the parties, the following issues were framed by Ld Predecessor vide order dt. 05.03.2012:
1) Whether Sh. Kapil Kumar Aggarwal S/o Sh. Khem Chand Aggarwal died due to road accident in the intervening night of 20/21.07.2009 at about 1.30 am at Manesar Ghati Road, near NSC Gurgaon, Haryana, Delhi within the jurisdiction of PS Manesar, Gurgaon, Haryana due to rash and negligent driving of truck bearing no. HR38C9003 being driven by respondent no. 1??OPP.
2) Whether the petitioners are entitled to Khem Chand & Ors. Vs. Hosiyar Singh & Ors. Page 5 of 20 MACP No. 5355/16 (Old No. 26/09) FIR No. 150/09.; PS NSG, Gurgaon, Haryana DOD: 25.04.2018 compensation, if so, to what an extent and from which of the respondents?OPP
3) Relief.
9. In support of their claim, the petitioners have examined only one witness i.e. PW1 Sh Khem Chand Aggarwal (father of deceased). They closed their evidence through their counsel on 17.02.2014. On the other hand, the respondent no. 3 i.e. Reliance General Insurance Co Ltd has examined only one witness i.e. Sh Gaurav Ahuja, Legal Executive and closed its evidence through its counsel on 15.09.2014. Respondent no. 6/National Insurance Co Ltd preferred not to lead any evidence. Accordingly, its evidence was closed on 01.12.14 by my Ld. Predecessor. The remaining respondents did not adduce any evidence, they being already proceeded exparte.
10. I have already heard the arguments addressed by ld counsels for the parties. I have also gone through the record. Both the sides were directed to submit their respective submissions in Form IV A, vide order dated 10.04.2018. However, none of them submitted the same on record till date. My findings on the issues are as under: Issue No. 1
11. For the purpose of this issue, the testimony of PW1 Sh. Khem Chand Aggarwal is relevant. In his evidence by way of affidavit (Ex. PW1/A), he deposed that on the intervening night of 2021.07.2009 at about 1.30 AM, Kapil Kumar Aggarwal (since expired) alongwith his friend Ankit, father of Ankit and driver were coming in Santro Car bearing registration no. DL8CS 3011 from Jaipur to Delhi. When they reached at Manesar, near NSG, Gurgaon,Truck bearing registration no. HR38C7866 which was ahead of said Santro Car, suddenly, Trolla Truck bearing registration no. HR55G9003 Khem Chand & Ors. Vs. Hosiyar Singh & Ors. Page 6 of 20 MACP No. 5355/16 (Old No. 26/09) FIR No. 150/09.; PS NSG, Gurgaon, Haryana DOD: 25.04.2018 being driven by respondent no. 1 in rash and negligent manner and at fast speed, came from their behind and hit against the aforesaid Santro Car. He further deposed that one Truck bearing no. HR38C7866 was going ahead of the said Santro Car and as a result of forceful impact of accident caused by Trolla bearing registration no. HR55G9003, the Santro Car rammed against the aforesaid truck from its back side. He further deposed that the Santro Car got sandwiched between the aforesaid two vehicles and as a result thereof, blast occurred and the car caught fire. He further deposed that all the persons who were travelling in the Santro Car, died at the spot. He further deposed that due to severe hit, the rear tyres of Truck bearing registration no. HR38C7866 and the front portion of Trolla bearing registration no. HR55G9003 also caught fire and Santro car completely turned into scrap. He further deposed that on the statement of respondent no. 4 namely Deep Chand, FIR no. 150/09 U/s 279/304A/427 IPC was registered at PS Manesar, District Gurgoan on 21.07.09. He categorically deposed that the accident occurred due to rash and negligent driving by the driver of Trolla. He has relied upon the following documents: Sr. No. Description of documents Remarks
1. Copies of criminal record Ex PW1/1 (colly)
2. Copy of Educational & Ex. PW1/2 Technical Certificates of deceased
3. Copy of 12th class Admission Ex. PW1/3 Card
4. Copy of Engineering Result Ex. PW1/4 (colly) detailed Mark sheet of Ist Semester to 5th semester of deceased
5. Copy of receipt of Engineering Ex. PW1/5 College of deceased
6. Copy of extra Certificate from Ex. PW1/6 Khem Chand & Ors. Vs. Hosiyar Singh & Ors. Page 7 of 20 MACP No. 5355/16 (Old No. 26/09) FIR No. 150/09.; PS NSG, Gurgaon, Haryana DOD: 25.04.2018 Prasar Bharti of deceased
7. Copy of Sports Certificate of Ex. PW1/7 (colly) school & B.M Institute of Engineering of deceased
8. Copy of Condolence message Ex. PW1/8 of B.M Institute of Engineering & Technology, Sonipat of deceased
9. Copy of I Card of deceased Ex. PW1/9 (colly)
10. Copy of Placement Certificate Ex. PW1/10 of deceased
12. During his cross examination, he deposed that he was not an eye witness of the accident.
13. No doubt, the petitioners have not examined any eye witness to prove the negligence on the part of drivers of the alleged vehicles described above but nevertheless, there is ample material brought on record during the course of inquiry, which is sufficient to establish that the accident occurred due to rash and negligent driving of Trolla bearing registration no. HR55G 9003 by its driver. This is apart from the fact that my Ld Predecessor has already passed award dt. 12.09.12 in MACP No. 105/09 titled as " Meena & Ors. Vs. Reliance General Insurance Co Ltd & Ors.", wherein it has already been held while giving findings on issue no. 1 framed therein that the accident in question occurred due to rash and negligent driving of Trolla bearing registration no. HR55G9003 by its driver and the said award /judgment has already attained finality in view of dismissal of appeal bearing MAC APP No. 34/13 titled as " Reliance General Insurance Co Ltd Vs. Smt. Meena & Ors." from Hon'ble Delhi High Court.
14. It is an undisputed fact that FIR no. 150/09 (supra) was registered at PS Gurgaon, Haryana with regard to the accident in question. Copy of said FIR as also the copy of charge sheet arising out of said FIR (which are part of Ex. PW1/1colly) would show that FIR was registered on Khem Chand & Ors. Vs. Hosiyar Singh & Ors. Page 8 of 20 MACP No. 5355/16 (Old No. 26/09) FIR No. 150/09.; PS NSG, Gurgaon, Haryana DOD: 25.04.2018 21.07.2009 i.e. on the date of accident itself on the statement of Sh. Deep Chand (R4) against Hoshiyar Singh (R1). Thus, FIR is shown to have been registered promptly and without any delay. Hence, there is no possibility of false implication of respondent no. 1 and/or false involvement of Trolla no. HR55G9003 at the instance of petitioners herein. Not only this, the respondent no. 1 namely Hosiyar Singh son of Sh. Murlidhar (accused in State case) has been charge sheeted for offences punishable U/s 279/304 A/427 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 Trolla No. HR55G9003 by him. Same would also point out towards rash and negligent driving of said vehicle by respondent no. 1. Moreover, the contents of FIR would show that the complainant therein, has narrated the same sequence of facts leading to the accident in question, as deposed by PW1 during the course of inquiry. Thus, the contents of said FIR as also the charge sheet filed by police against respondent no. 1 before the Court of ACJM, Gurgaon, corroborate the ocular testimony of PW1.
15. Not only this, copy of PM Report prepared at Government Mortuary (which is part of criminal record Ex. PW1/1 colly), would show that cause of death of deceased Kapil Kumar Aggarwal is opined due to shock because of ante mortem burn. All the injuries were ante mortem in nature & sufficient to cause death in normal course of nature. It is an undisputed fact that due to impact of the accident, the blast had taken place and the Santro Car in which deceased was travelling, had caught fire. As a consequent thereof, Kapil Kumar Aggarwal sustianed burn injuries and succumbed to those injuries. Said document has not been disputed from the side of respondents and corroborates the ocular testimony of PW1 as discussed above.
16. Copy of Mechanical inspection report dated 30.07.09 (which is Khem Chand & Ors. Vs. Hosiyar Singh & Ors. Page 9 of 20 MACP No. 5355/16 (Old No. 26/09) FIR No. 150/09.; PS NSG, Gurgaon, Haryana DOD: 25.04.2018 part of criminal record Ex PW1/1 colly) of Trolla bearing registration no. HR55G9003, would show fresh damages i.e. its front bumper and glasses were found damaged, its cabin was found burnt and its front left side mudguard and tyre were found burnt. Said report has gone unchallgned and unrebutted from the side of all the respondents more particularly respondents no. 3 and 6. Same also corroborates the ocular testimony of PW1 to the extent that the Trolla bearing registration no. HR55G9003 had hit the Santro Car from behind.
17. It is pertinent to note that the attending circumstances as brought on record, would clearly show that the speed of Trolla bearing registration no. HR55G9003 was so much high that it hit against the Santro Car of victim with great force, as a result of which said Santro Car dashed against Truck no. HR38C7866 which was moving ahead of it. One can take judicial notice of the fact about the rash and negligent manner in which Trolla bearing registration no. HR55G9003 would have been driven by its driver i.e. respondent no. 1 that the Santro Car of victims got sandwiched between the two vehicles and blast took place and the said car turned into scrap and all the three passengers sitting in the car had expired. In this backdrop, the maxim of " ResIpsa Loquitor" shall be applicable to the facts and circumstances of the case.
18. Furthermore, it is important to note that FIR No. 150/09 (supra) has been registered against respondent no. 1 i.e. driver of Trolla bearing registration no. HR55G9003 on the statement of noneelse but respondent no. 4 i.e. driver of Truck no. HR38C7866 and the investigating agency also came to the conclusion on the basis of evidence collected during the course of investigation that the accident in question had occurred entirely due to rash and negligent driving of Trolla bearing registration no. HR55G9003 by respondent no. 1.
19. It is also pertinent to note that the respondent no.1 i.e. driver of Khem Chand & Ors. Vs. Hosiyar Singh & Ors. Page 10 of 20 MACP No. 5355/16 (Old No. 26/09) FIR No. 150/09.; PS NSG, Gurgaon, Haryana DOD: 25.04.2018 aforesaid Trolla was the material witness to throw light by testifying as to how and under what circumstances, the accident had taken place. However, he preferred not to enter into witness box during the course of inquiry. Thus, an adverse inference is liable to be drawn against him to the effect that the accident in question occurred due to rash and negligent driving of Trolla bearing registration No. HR55G9003 by him.
20. There is no iota of evidence whatsoever available on record showing that there was any rashness or negligence on the part of R4 i.e. driver of Truck no. HR38C7866, which resulted in the accident in question. As already noted above, the said vehicle was moving ahead of Santro Car of victims and it was only when the driver of Trolla bearing registration no. HR55G9003 hit against Santro Car from back side, the said car rammed against moving Truck no. HR38C7866. Hence, I am of the opinion that there was no negligence on the part of driver of Truck no. HR38C7866 in occurrence of the accident in question.
21. Apart from this, the petitioners have filed photographs of the place of accident on record. The said photographs would make it abundantly clear that the Santro Car of victim almost squeezed between trolla and truck and the front portion of aforesaid trolla vehicle also got burnt, whereas the Santro Car was completely destroyed. Said photographs also reveal the burnt condition in which body of deceased was taken out.
22. 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 preponderance of probabilities that Kapil Kumar Aggarwal had sustained fatal injuries in road accident which took place on the intervening night of 20/21.07.09 at about 1.30 AM at Manesar Ghati Road, near NSG Gurgaon, Haryana within the jurisdiction of PS Gurgaon, Haryana due to rash and negligent driving of Trolla bearing registration no. HR38C9003 by respondent no. 1. Thus, issue no. 1 is decided in favour of petitioners and Khem Chand & Ors. Vs. Hosiyar Singh & Ors. Page 11 of 20 MACP No. 5355/16 (Old No. 26/09) FIR No. 150/09.; PS NSG, Gurgaon, Haryana DOD: 25.04.2018 against the respondents no. 1 to 3.
ISSUE NO. 223. 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.
LOSS OF DEPENDENCY
24. As already stated above, the claimants are the parents and one younger brother of deceased. PW1 Sh. Khem Chand Aggarwal (father of deceased) has deposed in his evidence by way of affidavit (Ex. PW1/A) that deceased was aged 21 years; he was self employed as he was taking tuition classes and was earning Rs. 10,000/ per month at the time of accident. He further deposed that deceased was pursuing Bachelor of Engineering in Electronic and Communication from B.M Institute of Engineering & Technology, Sonipat (Haryana) affiliated with M.D University, Rohtak and had already completed his 5th Semester Examination in December, 2008 and had good academic record. He also deposed that the petitioners were financially dependent upon deceased. He has relied upon Matriculation Certificate, 12th class Admission Card, Mark Sheets of 1st semester to 5th semester of Engineering Degree Course and receipt issued by aforesaid Engineering College as Ex. PW1/2 to Ex. PW1/5 respectively. He also relied upon copies of relevant certificates in respect of Extra Curricular Activities in which deceased had participated as Ex. PW1/6 & Ex. PW1/7, as also the copy of College I Card of deceased as Ex. PW1/9 and the copy of Placement Certificate issued by B.M Institute of Engineering & Technology containing name of deceased, as Ex. PW1/10.
25. During his cross examination, he deposed that he had no Khem Chand & Ors. Vs. Hosiyar Singh & Ors. Page 12 of 20 MACP No. 5355/16 (Old No. 26/09) FIR No. 150/09.; PS NSG, Gurgaon, Haryana DOD: 25.04.2018 documentary proof to show that deceased was taking tuition classes or was earning Rs. 10,000/ pm at the time of accident. He further deposed that he was a pretty shopkeeper and was depositing college fees of deceased after taking loan from other persons but he could not produce any documentary proof to show that he had taken any loan from any public person. He denied the suggestion that deceased was not earning any income or that deceased was not providing any financial support to his family at the time of accident.
26. Counsel for petitioners fairly conceded during the course of arguments that for want of cogent evidence being led with regard to monthly income of deceased, his monthly income should be taken as per Minimum Wages Act applicable during the period in question. As already noted above, PW1 Sh. Khem Chand Aggarwal has admitted during his cross examination that he has no documentary proof regarding monthly income of deceased at the time of the accident. Mere bald statement made by PW1 in this regard, cannot be accepted under the law.
27. The petitioners have filed on record the copies of educational qualification documents (Ex PW1/2 to Ex. PW1/5 & Ex. PW1/9) of deceased. It is duly established on the basis of said documents that deceased was pursuing Bachelor Degree of Electronics & Communication Engineering and was in 6th semester at the time of accident. It is also quite evident from the Certificate ( Ex. PW1/10) that deceased had got Campus Placement while in 3rd year and he was going to complete the aforesaid Degree Course in the year 2009 itself. In these circumstances and in the absence of any definite evidence regarding monthly income of deceased being led by the petitioners, his monthly income is being taken as that of graduate as per Minimum Wages Act applicable in Delhi during the relevant period. The Minimum Wages of graduate under Minimum Wages Act applicable in Delhi as on 21.07.2009 i.e. the date of accident, were Rs. 4694/ per month. The minimum wages of graduate were revised to Rs.
Khem Chand & Ors. Vs. Hosiyar Singh & Ors. Page 13 of 20MACP No. 5355/16 (Old No. 26/09) FIR No. 150/09.; PS NSG, Gurgaon, Haryana DOD: 25.04.2018 4713/- w.e.f. 01.08.2009. The accident in question had occurred during the intervening night of 20/21.07.2009 i.e. just 10 days before the date from which minimum wages were revised by the government. In these facts and circumstances, I am inclined to take the minimum wages at the rate of Rs. 4713/- per month in order to calculate loss of income under this head. (Reliance placed on unreported decision in the matter titled as "THE ORIENTAL INSURANCE CO.LTD. Vs. CHHOTEY LAL & ORS. ", in MAC. APP. 1074/2016 decided on 15.05.2017 by Hon'ble Delhi High Court.)
28. In the claim petition, the age of deceased is mentioned as 21 years at the time of accident. In copy of his Matriculation Certificate ( Ex. PW1/2), his date of birth is mentioned as 23.12.1987. The date of accident is 20/21.07.2009. Accordingly, the age of deceased is taken as 21 years at the time of accident. Hence, the multiplier of 18 would be applicable in view of recent pronouncement made by Constitutional Bench of Apex Court in the case titled as "National Insurance Company Ltd. Vs. Pranay Sethi & Ors.", passed in SLP(Civil) No. 25590/14 decided on 31.10.17.
29. Considering the fact that there was only one dependent upon deceased ( there being no cogent evidence that grand father, father and sibling of deceased were also dependent upon him) at the time of accident, there has to be deduction of one half as held in the case of Pranay Sethi mentioned supra. There has to be addition of 40% towards element of future prospects in the monthly income of deceased(he being aged less than 40 years at the time of accident), 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. Thus, the total of loss of dependency would come out to Rs. 7,12,454.40 paise (Rs. 4713/ X Khem Chand & Ors. Vs. Hosiyar Singh & Ors. Page 14 of 20 MACP No. 5355/16 (Old No. 26/09) FIR No. 150/09.; PS NSG, Gurgaon, Haryana DOD: 25.04.2018 1/2 X 140/100 X 12 X 18). Hence, a sum of Rs. 7,12,455/ (rounded off) is awarded under this head in favour of the petitioners.
LOSS OF LOVE & AFFECTION
30. After the celebrated judgment of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors.", mentioned supra, Hon'ble Delhi High Court in appeal titled as "Bajaj Allianz General Insurance Company Ltd. Vs. Pooja & Ors", mentioned supra, has been pleased to observe in para 18 of the judgment that the constitution bench decision in Pranay Sethi (supra) does not recognize any other nonpecuniary head of damages. Hence, no amount of compensation is being awarded under this head.
LOSS OF 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. 7,12,455/
2. Loss of Estate & Funeral Expenses Rs. 30,000/ Total Rs. 7,42,455/ Rounded off to Rs. 7,43,000/
32. Now, the question which arises for determination is as to which of the respondents is liable to pay the compensation amount. In view of finding rendered on issue no. 1 that there was no rash and negligence on the part of driver of Truck no. HR38C7866, it is hereby held that respondents no. 4 to 6 cannot be made liable to pay the compensation amount as determined hereinabove.
Khem Chand & Ors. Vs. Hosiyar Singh & Ors. Page 15 of 20MACP No. 5355/16 (Old No. 26/09) FIR No. 150/09.; PS NSG, Gurgaon, Haryana DOD: 25.04.2018
33. Counsel for R3/ Reliance General Insurance Company Ltd. sought to avoid the liability of said insurance company to pay the compensation amount on the ground that the offending Trolla bearing registration no. HR55G9003 was not having any valid permit at the time of accident in question. In order to substantiate the said plea, the said insurance company has examined its Legal Executive namely Sh Gaurav Ahuja as R3W1. Said witness has deposed in his evidence by way of affidavit (Ex. R3W1/A) that despite service of notice U/o 12 rule 8 CPC upon respondents no. 1 & 2, they failed t produce original insurance policy, permit and original DL of the driver as on the date of accident. He has relied upon office copy of said notice as Ex. R3W1/1, original postal receipts regarding dispatch of said notice as Ex. R3W1/2 and attested copy of insurance policy as Ex. R3W1/3. He further deposed that the offending vehicle was not having any permit at the time of accident and thus, the insured has willfully violated and breached the terms and conditions of the insurance policy. Said witness has not been crossexamined at all by R1 and R2 I.e driver and registered owner of Trolla bearing registration no. HR55G9003, both being already exparte.
34. At this juncture, it would be relevant to refer to the provision contained in Section 66 (1) of M.V Act which read as under: Necessity for Permits:(1) No owner of a motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place whether or not such vehicle is actually carrying any passengers or goods save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or any prescribed authority authorising him the use of the vehicle in that place in the manner in which the vehicle is being used.
Khem Chand & Ors. Vs. Hosiyar Singh & Ors. Page 16 of 20MACP No. 5355/16 (Old No. 26/09) FIR No. 150/09.; PS NSG, Gurgaon, Haryana DOD: 25.04.2018
35. It is quite clear from the bare perusal of the aforesaid provision that transport vehicle cannot be used in any public place, whether or not such vehicle is actually carrying any passengers or goods, save in accordance with the conditions of a permit granted by Regional or State Transport Authority. Thus, there is clear violation of the terms and conditions of the insurance policy for want of valid permit in respect of offending vehicle as on the date of accident.
36. Moreover, they preferred to stay away from the proceedings and did not enter into witness box or to file any valid permit of the offending trolla vehicle as on the date of accident. Hence, an adverse inference is liable to be drawn against them that there was no valid permit in respect of Trolla bearing registration no. HR55G9003 as on the date of accident. In these circumstances, it is held that there was fundamental breach in terms and conditions of the insurance policy on the part of insured i.e. respondent no. 2. Hence, insurance company is entitled to recovery rights against the respondent no. 2. (Reliance placed on decision dated 26.09.2017 in FAO no.7555/2015 in the matter titled as "MS Middle High School and another Vs. Usha and others" by Hon'ble High Court of Punjab and Haryana and as upheld by Hon'ble Apex Court in SLP no.31406/2017 titled as "MS Middle High School Vs. HDFC ERGO General Insurance Company Ltd. & others" decided on 22.11.2017). Issue no. 2 is decided accordingly.
ISSUE NO. 3 RELIEF
37. In view of my finding on issues no. 1 & 2, I award a sum of Rs. 7,43,000/ (including interim award amount if any) alongwith interest @ 9% per annum w.e.f date of filing the petition i.e.05.10.2009 till the date of its realization, in favour of Lrs of deceased/petitioners and against the respondents jointly and severally (Reliance placed on judgment "Oriental Insurance Company Ltd. Vs. Sangeeta Devi & Ors" bearing MAC. APP. 165/2011 decided on 22.02.2016).However, it would be open to the Khem Chand & Ors. Vs. Hosiyar Singh & Ors. Page 17 of 20 MACP No. 5355/16 (Old No. 26/09) FIR No. 150/09.; PS NSG, Gurgaon, Haryana DOD: 25.04.2018 insurance company to recover the award amount from respondent no. 2 after payment of compensation amount, in accordance with law.
APPORTIONMENT
38. Statements of petitioners no. 1 & 2 in terms of Clause 26 MCTAP were recorded on 20.12.2016. During the course of arguments, counsel for petitioners submitted that petitioner no. 3 namely Sh Amit Kumar, being sibling of deceased, does not want any share out of compensation amount and urged that the compensation amount may be awarded in favour of petitioners no. 1 & 2 alone. Having regard to the facts and circumstances of the case and in view of their statements, it is hereby ordered that petitioner no. 1 namely Sh. Khem Chand Aggarwal shall be entitled to share amount of Rs. 2,93,000/(Rs. Two Lacs NInety Three Thousand Only) alongwith proportionate interest and the petitioner no. 2 namely Smt. Suman Lata shall be entitled to share amount of Rs. 4,50,000/(Rs. Four Lacs & Fifty Thousand Only) alongwith proportionate interest.
39. Out of the share amount of petitioner no.1, a sum of Rs. 50,000/( Rs. Fifty Thousand Only) is directed to be immediately released to her through her Saving Bank Account No. 09121000707512 with Punjab & Sind Bank, Sector 3, Rohini, Delhi Branch having IFSC Code No. PSIB000A912 and remaining share amount is directed to be kept in the form of FDRs in the multiples of Rs. 5,000/ each for one month, two months, three months and so on and so forth, having cumulative interest.
40. Out of the share amount of petitioner no. 2, a sum of Rs. 50,000/ (Rs. Fifty Thousand Only) is directed to be immediately released to her through her Saving Bank Account No. 09121000707510 with Punjab & Sind Bank, Sector 3, Rohini, Delhi Branch having IFSC Code No. PSIB000A912 and remaining share amount is directed to be kept in the form of FDRs in the multiples of Rs. 10,000/ each for one month, two months, Khem Chand & Ors. Vs. Hosiyar Singh & Ors. Page 18 of 20 MACP No. 5355/16 (Old No. 26/09) FIR No. 150/09.; PS NSG, Gurgaon, Haryana DOD: 25.04.2018 three months and so on and so forth, having cumulative interest.
41. All the FDRs to be prepared as per aforesaid directions, shall be subject to the following conditions:
(i) Original fixed deposit receipts be retained by the bank in safe custody. However, a passbook of the FDRs alongwith photocopies of the FDRs be given to claimants/petitioners. At the time of maturity, the fixed deposit amount shall be automatically credited in the savings bank accounts of the Claimants/petitioners.
(ii) The maturity amount(s) of the FDR(s) shall be credited to the savings bank account of the claimant(s) in a nationalized bank near the place of their residence.
(iii) No cheque book/Debit Card be issued to the claimant(s) in respect of the savings bank accounts in which the award amount is to be sent/credited, without permission of the Court. However, in case the debit card and/or cheque book have already been issued, the bank shall cancel the same before the disbursement of the award amount.
(iv) No loan, advance or withdrawal be allowed on the fixed deposit(s) without permission of the Court.
(v) The Bank shall not permit any joint name(s) to be added in the savings bank accounts or fixed deposit accounts of the victims.
(vi) Half yearly statement of account be filed by the Bank before the Tribunal.
42. During the course of hearing of final arguments, the claimants namely Sh. Khem Chand Aggarwal and Smt. Suman Lata made separate statements that they are entitled to exemption from deduction of TDS. They also furnished Form Nos. 15G of Income Tax Act on record.
43. Respondent no. 3, being insurer of the offending vehicle i.e. Trolla bearing registration no. HR55G9003, 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 Khem Chand & Ors. Vs. Hosiyar Singh & Ors. Page 19 of 20 MACP No. 5355/16 (Old No. 26/09) FIR No. 150/09.; PS NSG, Gurgaon, Haryana DOD: 25.04.2018 directed to transfer the respective amounts (directed to be released immediately to petitioners no. 1 & 2) 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 the award be given dasti to the petitioners. Copy of this award alongwith original Form nos. 15G of Income Tax Act furnished by claimants (after retaining copies thereof on record) be given to counsel for Reliance General Insurance Company Ltd for compliance. Copy of this award alongwith one photograph each, specimen signatures, copies of bank passbooks and copies of residence proof of the petitioners, be sent to Nodal Officer of SBI, Rohini Court, Branch, Delhi for information and necessary compliance. Form V in terms of MCTAP is annexed herewith as AnnexureA. Copy of order be also sent to concerned M.M and DLSA as per clause 31 and 32 of MCTAP.
Announced in open Court on 25.04.2018 (VIDYA PRAKASH) Judge MACT2 (North) Rohini Courts, Delhi Khem Chand & Ors. Vs. Hosiyar Singh & Ors. Page 20 of 20