Delhi District Court
Smt. Lakhpati Devi vs Smt. Lakhpati Devi & Ors. Vs. Jagdev & ... on 11 February, 2021
MACP No. 522/17; FIR No. 874/16; PS. Narela DOD: 11.02.2021
IN THE COURT OF SH. DEVENDER KUMAR JANGALA,
PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNAL,
ROHINI COURTS, DELHI
MAC Petition No. 552/17
1. Smt. Lakhpati Devi,
W/o Late Sh. Kamaldeep Singh,
(Widow of deceased)
2. Sh. Sandeep,
S/o Late Sh. Kamaldeep Singh,
(Son of deceased)
Both R/o VPO H.No. 93,
Village Lehrada,
Sonepat,
Haryana.
3. Ms. Jyoti Saroha,
W/o Sh. Vijay Dahiya,
R/o 395, Phase - 2,
Old Housing Board Colony,
Near Sabzi Mandi,
Sonepat, Haryana.
(Daughter of deceased)
4. Ms. Nisha,
W/o Sh. Narender Kumar,
R/o Opposite Holy Child School,
Narender Nagar,
Sonepat, Haryana.
(Daughter of deceased) ................Petitioners
VERSUS
Smt. Lakhpati Devi & Ors. Vs. Jagdev & Ors. Page 1 of 25
MACP No. 522/17; FIR No. 874/16; PS. Narela DOD: 11.02.2021
1. Sh. Jagdev,
S/o Sh. Samunder Singh,
R/o H.No. 96/13A,
Basant Vihar,
Rohtak,
Haryana(Driver)
2. Sh. Mahipal,
S/o Sh. Samunder Singh,
R/o Gali No. 30A,
Swatantar Nagar,
Narela,
Delhi (Registered owner)
3. L & T General Insurance Company,
6th Floor, DCM Building 16,
Barakhamba Road,
New Delhi(Insurer)
...............Respondents
Date of Institution : 09.06.2017
Date of Arguments : 04.02.2021
Date of Decision : 11.02.2021
APPEARANCES:
Sh. Ravinder Kumar, Ld. Counsel for petitioners.
Sh. Rajesh Hooda, Ld. Counsel for driver and owner. Sh. S.K. Tyagi, Ld. Counsel for insurance co.
Petition under Section 166 & 140 of M.V. Act, 1988 for grant of compensation AWARD
1. The petitioners are seeking compensation for the fatal injuries sustained by Sh. Kamaldeep Singh, in the wake of Detailed Accident Report (DAR) filed by police corresponding to the investigation carried out Smt. Lakhpati Devi & Ors. Vs. Jagdev & Ors. Page 2 of 25 MACP No. 522/17; FIR No. 874/16; PS. Narela DOD: 11.02.2021 in FIR No. 874/16 U/s 279/304A IPC registered at PS. Narela with regard to Motor Vehicular Accident which occurred on 02.12.2016 at 10:00 pm, in front of Gali No. 10, Gautam Colony, main Safiyabad Road, Narela, Delhi, involving vehicle i.e. Tractor bearing registration no. HR10AA8754 (alleged offending vehicle) allegedly being driven in rash and negligent manner and without following traffic rules by respondent no. 1. DAR was treated as claim petition U/s 166(4) of Motor Vehicles Act (hereinafter referred to as M.V. Act).
2. Brief facts of the present case is that on 02.12.2016 at about 10:00 pm, Sh. Kamaldeep Singh (since expired) had met with an accident in front of Gali No. 10, Gautam Colony, main Safiyabad Road, Narela, Delhi while he was riding his motorcycle bearing registration no. HR10H9566 which was hit by Tractor with trolley bearing registration no. HR10AA8754 which was being driven by its driver/respondent no. 1 in rash and negligent manner. Thereafter, he was removed to SRHC Hospital, Narela, Delhi, where he was medically examined vide MLC No. 5222/16. FIR No. 874/16, U/s. 279/304A IPC was registered at PS. Narela with regard to accident in question. It is claimed that the accident took place due to rash and negligent driving of Tractor No. HR10AA8754 by its driver/respondent no.1. The said Tempo was found to be owned by respondent no. 2 and it was insured with L & T General Insurance Company/respondent no. 3 during the period in question.
Smt. Lakhpati Devi & Ors. Vs. Jagdev & Ors. Page 3 of 25MACP No. 522/17; FIR No. 874/16; PS. Narela DOD: 11.02.2021
3. In their joint WS, the respondents no. 1 & 2 i.e. driver and registered owner have claimed that no accident took place with their vehicle i.e. Tractor bearing registration no. HR10AA8754. They further claimed that the alleged accident was caused by driver of motorcycle no. HR10H 9566 who is deceased in the present case as he was driving his motorcycle rashly and negligently. They also claimed that their vehicle is falsely implicated in the present case. Thus, they are not liable to pay any compensation amount to the respondents. However, they have admitted that their vehicle was insured with respondent no. 3 at the time of accident.
4. In its WS, the respondent no. 3/insurance company has raised statutory defence as provided in Section 149(2) M.V Act. It has claimed that deceased himself was negligent at the time of accident as he was driving his motorcycle no. HR10H9566 negligently in contravention of the traffic rules and too at very high speed and in zigzag manner and hit the left side wheel tyre of the trolly as per the mechanical inspection report attached in the DAR. Thus, it is not liable to pay compensation amount to the petitioners. Alternatively, it has admitted that only tractor bearing registration no. HR10AA8754 was insured with it in the name of respondent no. 2 during the period in question.
5. From pleadings of the parties, the following issues were framed vide order dt. 01.09.2017 by my Ld. Predecessor: Smt. Lakhpati Devi & Ors. Vs. Jagdev & Ors. Page 4 of 25 MACP No. 522/17; FIR No. 874/16; PS. Narela DOD: 11.02.2021
1. Whether the deceased Kamaldeep Singh suffered fatal injuries in road traffic accident on 02.12.2016 at about 10:00 pm, in front of Gali No. 10, Gautam Colony, Main Safiyabad Road, Narela, Delhi, within the jurisdiction of PS. Narela due to rashness and negligence on the part of the driver Jagdev who was driving Tractor bearing registration no. HR10AA8754, owned by Mahipal and insured with L & T Insurance Co.(Now HDFC General Insurance Co. Ltd)?
OPP.
2. Whether the Lrs of deceased are entitled to any compensation if so to what amount and from whom? OPP.
3. Relief.
6. In support of their claim, the petitioners have examined four witnesses i.e. PW1 Smt. Lakhpati Devi (widow of deceased), PW2 Sh. Anil Kumar (alleged eyewitness), PW3 Sh. Amit (Official from the office of employer of deceased) and PW4 Dr. Rajesh Kumar and closed their evidence through their counsel on 06.09.2018. On the other hand, respondents no. 1 & 2 examined themselves in their evidence as R1W1 & R2W1 respectively and their evidence was closed vide order dated 16.11.2019. Respondent no. 3/insurance company has examined one witness i.e. R3W1 SI Parmod and closed its evidence on 02.09.2019.
Smt. Lakhpati Devi & Ors. Vs. Jagdev & Ors. Page 5 of 25MACP No. 522/17; FIR No. 874/16; PS. Narela DOD: 11.02.2021
7. I have heard the arguments addressed by ld counsels for the parties. I have also gone through the record. My findings on the issues are as under: Issue No. 1
8. On this issue, the testimony of PW2 Sh. Anil Kumar (alleged eyewitness) is relevant. He deposed in his evidence by way of affidavit Ex. PW2/A that on 02.12.2016 at about 10:00 pm, he was coming from the side of Safiyabad to Narela, Delhi on foot and when he reached at main Safiyabad Road, near Gali No. 10, Gautam Colony, Narela, Delhi, he saw his cousin Sh. Kamaldeep Singh was coming from Narela side on his Discover motorcycle bearing no. HR10H9566 and then Kamaldeep Singh stopped his bike on road side and they both started talking with each other for about five minutes. After five minutes, Kamaldeep Singh started his motorcycle and proceeded towards Safiyabad and he proceeded towards Narela side for his house and then he saw that one Red Colour Tractor with trolley bearing registration no. HR10AA8754 coming from Narela side in rash and negligent manner and at a very high speed, came and hit the motorcycle of Kamaldeep Singh from back side and the tyre of trolley ran over the leg of Kamaldeep Singh. He immediately ran towards Kamaldeep Singh and the tractor trolley driver stopped his tractor at some distance and came to see Kamaldeep Singh and after seeing his critical condition, he ran away from the spot. During his crossexamination on behalf of respondents Smt. Lakhpati Devi & Ors. Vs. Jagdev & Ors. Page 6 of 25 MACP No. 522/17; FIR No. 874/16; PS. Narela DOD: 11.02.2021 no. 1 & 2, he deposed that on the date of accident, deceased met him near Gali No. 10, main Safiyabad Road, Gautam Colony, Narela, Delhi prior to the accident. He further deposed that he was talking to the deceased when the accident took place. He again said that he alongwith deceased were talking when the offending vehicle suddenly hit against deceased from back side. He deposed that police official met him for the first time concerning investigation of criminal case on the date of accident itself i.e. 02.12.2016 in SRHC Hospital, Narela at about 10:45 pm or so. He further deposed that he had not signed on any of the paper in the hospital at that time. He further deposed that his statement was recorded by the police in PS. Narela after 45 days from the date of accident. He denied the suggestion that no accident took place in his presence or that he was subsequently introduced as a witness to the accident by police in connivance with family members of deceased. He further denied the suggestion that no such accident took place with tractor trolley no. HR10AA8754 as deposed by him in his examination in chief. During his crossexamination on behalf of respondent no. 3/insurance company, he deposed that he did not recollect the name of police official who had met him in the hospital on the date of accident. PW2 Anil Kumar volunteered that said person was PCR Van official. He further deposed that in between 02.12.16 and 07.12.16, he had visited PS. Narela on 23 occasions and had informed IO of criminal case that he was eyewitness of the accident in question but he did not record his statement during said occasions.
Smt. Lakhpati Devi & Ors. Vs. Jagdev & Ors. Page 7 of 25MACP No. 522/17; FIR No. 874/16; PS. Narela DOD: 11.02.2021
9. PW2 Sh. Anil Kumar has specifically denied that no accident took place in his presence or that he was subsequently introduced as a witness to the accident by police in connivance with family members of deceased. It is clear that some minor contradictions have been emerged out of the deposition of PW2 Sh. Anil Kumar. However, the perusal of record reveals that accident took place on 02.12.2016 and the deposition of PW2 Sh. Anil Kumar was recorded in the court on 06.09.2018. It is quite natural that after lapse of such a long period, witness may not be able to depose in verbatim manner. It is also well settled law that minor contradiction emerged in the deposition of witness is not going to sake his trustworthiness. It is not out of place to mention that PW2 has been cited by the IO in the chargesheet as eyewitness of the accident. The respondents have nowhere lodged any protest petition or any complaint that PW2 is a planted witness. No other material contradiction in the deposition of PW2 Sh. Anil Kumar is emerged which raised any shadow of doubt regarding his presence at the spot.
10. It is not out of place to mention that provisions of Motor Vehicles Act related to the compensation are benevolent provisions and the court has to test the evidence produced on record on the scale of preponderance of probability. The Tribunal is not required to see that the case is proved beyond reasonable doubt as applicable in criminal trial. The principal of 'Res Ipsa Loquitor' may be applied in the proceedings before Smt. Lakhpati Devi & Ors. Vs. Jagdev & Ors. Page 8 of 25 MACP No. 522/17; FIR No. 874/16; PS. Narela DOD: 11.02.2021 this Tribunal.
11. It is quite evident from the aforesaid discussion that the respondents have not been able to impeach the testimony of PW2 Sh. Anil Kumar despite the fact that he was cross examined at length on their behalf. The presence of said witness at the place of accident, stands established from the perusal of chargesheet filed alongwith DAR (which is part of DAR Ex. PW1/1 colly) wherein the name of the aforesaid witness i.e. PW2 Sh. Anil Kumar is mentioned in the list of witnesses as eye witness. The contents of FIR would reveal that witness has narrated therein the same sequence of facts therein leading to the accident in question, as deposed by him as PW2 during the course of inquiry. Thus, there is no reason to disbelieve the testimony of this witness made on oath.
12. As already noted above, the respondents no. 1 & 2 have examined themselves as R1W1 and R2W1 respectively in order to rebut the case of petitioners. They both deposed on the identical lines in their respective evidence to the effect that no accident took place with the vehicle in question i.e. Tractor No. HR10AA8754. They further deposed that alleged accident was caused due to the negligence of driver of motorcycle no. HR10H9566. However, they both claimed that the aforesaid vehicle was insured with respondent no. 3 at the time of accident.
Smt. Lakhpati Devi & Ors. Vs. Jagdev & Ors. Page 9 of 25MACP No. 522/17; FIR No. 874/16; PS. Narela DOD: 11.02.2021
13. Counsel for the respondents vehemently argued that the petitioners have failed to prove negligence on the part of respondent no. 1 in causing the accident. For this purpose, they have heavily relied upon the testimonies of R1W1 and R2W1 as discussed above. On the other hand, counsel for petitioners argued that the testimonies of R1W1 and R2W1 should not be believed as they are interested witnesses. He further submitted that FIR was registered against respondent no. 1 and he is facing trial in the criminal case.
14. As regards the testimonies of the respondents no. 1 & 2 (examined as R1W1 & R2W1), it may be noted that they have simply deposed that deceased himself was solely negligent and responsible for the accident. The respondent no. 1 has admitted during his crossexamination that he was accused in case FIR No. 874/16, PS. Narela. Thus, there is no reason to discard the testimony of PW1 made on oath.
15. R1W1 & R2W1 have also filed their evidence by way of affidavit. The witnesses have nowhere disclosed that they have lodged any complaint regarding their false implication in the present case. It is admitted fact that neither any police complaint nor any other plea were taken by the respondents no. 1 & 2 for their false implication in the present case. Plea of false implication is raised by the respondents no. 1 & 2 at belated stage during the trial which obviously seems to be after thought.
Smt. Lakhpati Devi & Ors. Vs. Jagdev & Ors. Page 10 of 25MACP No. 522/17; FIR No. 874/16; PS. Narela DOD: 11.02.2021
16. It is an undisputed fact that FIR No. 874/16 u/s 279/304A IPC was registered at PS. Narela with regard to accident in question. Copy of said FIR (which is part of DAR Ex. PW1/1 colly), would show that same was registered on 03.12.2016(accident being caused on 02.12.2016 at 10:00 pm). 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 Tractor bearing registration no. HR10AA8754 at the instance of petitioners herein.
17. Moreover, copy of chargesheet filed in criminal case (which is part of DAR Ex.PW1/1 colly) would show that Jagdev (R1) has been chargesheeted for offences punishable U/s 279/304A IPC by Investigating Agency after arriving at the conclusion that the accident in question had taken place due to rash and negligent driving of tractor bearing registration no. HR10AA8754 by him. Same would also point out that the accident in question had taken place due to rash and negligent driving of said vehicle by respondent no. 1.
18. Not only this, copy of PM Report (which is also part of DAR Ex. PW1/1 colly) of deceased, would show that his cause of death was on account of hemorrhage, secondary to blunt force trauma to the chest, abdomen and right lower limb. The injuries as noted in the relevant column with regard to external injuries, as mentioned therein, are consistent with Smt. Lakhpati Devi & Ors. Vs. Jagdev & Ors. Page 11 of 25 MACP No. 522/17; FIR No. 874/16; PS. Narela DOD: 11.02.2021 the injuries which are sustained in motor vehicular accident. Again, there is no challenge to the aforesaid document from the side of respondents.
19. 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. Kamaldeep Singh had sustained fatal injuries in Motor Vehicular Accident which occurred on 02.12.2016 at 10:00 pm in front of Gali No. 16, Gautam Colony, Main Safiyabad Road, Narela, Delhi due to rash and negligent driving of tractor bearing registration no. HR10AA8754 by respondent no. 1. Thus, issue no. 1 is decided in favour of petitioners and against the respondents.
ISSUE NO. 220. 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
21. As already stated above, the claimants are the widow and children of deceased. PW1 Smt. Lakhpati Devi has deposed in her Smt. Lakhpati Devi & Ors. Vs. Jagdev & Ors. Page 12 of 25 MACP No. 522/17; FIR No. 874/16; PS. Narela DOD: 11.02.2021 evidence by way of affidavit (Ex. PW1/A) that Sh. Kamaldeep Singh (deceased) was working as a Works Manager in Metro Motors and was drawing monthly salary of Rs. 17,500/ besides other emoluments/benefits and was providing financial support to his family consisting of his wife and three children. She has relied upon the following documents: Sr. No. Description of Remarks documents
1. DAR Ex PW1/1(colly) 2. Copies of salary Ex. PW1/2 certificate of deceased.
3. Copy of Ration card Ex. PW1/3
22. During her crossexamination on behalf of respondents, she deposed that her both daughters are married and they are living at their matrimonial house. She denied the suggestion that her deceased husband was not working as Works Manager in Metro Motor or that he was not drawing monthly salary of Rs. 17,500/ at the time of accident.
23. PW3 Sh. Amit, Supervisor from the office of employer of deceased. He produced attendance register, original bank passbook and certificate in respect of Sh. Kamaldeep Singh, S/o Late Sh. Jai Singh, who was working as Manager in his Firm since 2013. He exhibited the relevant page of attendance register as Ex. PW3/1, original bank passbook of Sh. Kamaldeep Singh as Ex. PW3/2 and the certificate issued by their firm as Ex. PW3/3. During his crossexamination on behalf of respondents no. 1 & Smt. Lakhpati Devi & Ors. Vs. Jagdev & Ors. Page 13 of 25 MACP No. 522/17; FIR No. 874/16; PS. Narela DOD: 11.02.2021 2, he deposed that no appointment letter was issued by their firm to Sh. Kamaldeep Singh or to any other employees. He denied the suggestion that Sh. Kamaldeep Singh was serving with Metro Motors on contract basis. He further deposed that he did not know if ESI Card of Sh. Kamaldeep Singh was made at that time or not. During his crossexamination on behalf of respondent no. 3, he deposed that he had not brought the salary vouchers of deceased Sh. Kamaldeep Singh as the salary of deceased used to credit in the bank account of deceased.
24. After referring to the testimonies of PW1 & PW3 and the documents produced by them, counsel for petitioners vehemently argued that deceased was getting monthly salary of Rs. 17,500/ besides other emoluments at the time of accident and salary of deceased should be taken as Rs. 17,500/ in order to calculate the loss of dependency. He further argued that since deceased was having permanent job and he was aged about 56 years at the time of accident, future prospects @ 15% should also be awarded in favour of the petitioners.
25. Having considered the rival submissions made on behalf of both the sides in the light of material available on record, I find substance in the contention raised on behalf of petitioners that monthly salary of deceased should be considered as Rs. 17,500/ and be taken into consideration in order to calculate the loss of dependency. The Smt. Lakhpati Devi & Ors. Vs. Jagdev & Ors. Page 14 of 25 MACP No. 522/17; FIR No. 874/16; PS. Narela DOD: 11.02.2021 documentary evidence regarding the service record of deceased as produced by PW3, would clearly establish that deceased Sh. Kamaldeep Singh was working as Works Manager with Metro Motors and he was drawing monthly salary of Rs. 17,500/ from the said firm. The perusal of bank passbook Ex. PW3/2 of saving bank account of Metro Motors reveals that an amount of Rs. 17,500/ were being deposited in its account under the head of salary. The respondents could not impeach the testimony of PW3 and could not create any doubt on the authenticity or genuineness of the aforesaid documents brought on record by said witnesses. It has also not led any evidence in rebuttal during the course of inquiry. Hence, I am inclined to accept the monthly income of deceased to be Rs. 17,500/ in order to calculate the loss of dependency.
26. As per the case of petitioner, deceased Sh. Kamaldeep Singh was aged about 56 years at the time of accident. In the copy of driving licence (which is part of DAR) of deceased, date of birth of deceased is mentioned as 27.11.1961. Hence, he was aged about 55 years and 1 month on the date of accident i.e. 02.12.2016. The respondents have not led any evidence to dispute the said age of deceased. Hence, the age of deceased is accepted as 55 years at that time. Thus, the multiplier of 11 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) Smt. Lakhpati Devi & Ors. Vs. Jagdev & Ors. Page 15 of 25 MACP No. 522/17; FIR No. 874/16; PS. Narela DOD: 11.02.2021 No. 25590/14 decided on 31.10.17.
27. Considering the fact that deceased was aged about 55 years at the time of accident and was not having permanent job at that time, future prospects @ 15% 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 categorically deposed in her evidence by way of affidavit (Ex. PW1/A) that all the petitioners were dependent upon the deceased. Said part of her testimony remained unchallenged and uncontroverted from the side of respondents. Considering all these facts and circumstances, it is accepted that there was four dependents 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 Rs. 19,92,375/ (Rs. 17,500/ X 3/4 X 115/100 X 12 X 11). Hence, a sum of Rs. 19,92,500/(rounded off) is awarded under this head in favour of the petitioners.
Smt. Lakhpati Devi & Ors. Vs. Jagdev & Ors. Page 16 of 25MACP No. 522/17; FIR No. 874/16; PS. Narela DOD: 11.02.2021 LOSS OF LOVE AND 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, dated 07.09.2020 I am of the considered opinion that the petitioner no.1/widow of deceased, petitioners no. 2 to 4/children of deceased, 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 petitioners under this head.
Smt. Lakhpati Devi & Ors. Vs. Jagdev & Ors. Page 17 of 25MACP No. 522/17; FIR No. 874/16; PS. Narela DOD: 11.02.2021 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. 19,92,500/
2. Loss of Consortium Rs. 1,60,000/
3. Loss of Estate & Funeral Rs. 30,000/ Expenses Total Rs. 21,82,500/
32. Now, the question which arises for determination is as to which of the respondents is liable to pay the compensation amount. Respondent no.3/insurance company has disputed its liability on the ground that the offending vehicle is a tractor with trolly and the trolly was not insured, hence the insurance company is not liable.
33. A tractor with trailor is, under normal circumstances, a goods carriage. But as per the Central Motor Vehicles Rules 1989, Rule 2(b) and 2(c) define agricultural tractor and agricultural trailor thus: 2(b) "agricultural tractor" means any mechanically propelled 4wheel vehicle designed to work with suitable implements for various field operations Smt. Lakhpati Devi & Ors. Vs. Jagdev & Ors. Page 18 of 25 MACP No. 522/17; FIR No. 874/16; PS. Narela DOD: 11.02.2021 and/or trailers to transport agricultural materials. Agricultural tractor is a nontransport vehicle. 2(c) "agricultural trailer" means a trailer generally left uncovered with single/double axle construction which is coupled to an agricultural tractor by means of two hooks and predominantly used for transporting agricultural materials.
34. Per contra, counsel for respondents no. 1 & 2 vehemently argued that trolley is an essential part and parcel of tractor and one can not effectively use tractor without trolley being attached to it. He further argued that the tractor and trolley was being used for agricultural purposes and respondent no. 1 was having DL in respect of M.C with gear, LMVNTCar, LMVTractor only. Therefore, the insurance company is liable to pay the compensation amount, being contractually and statutorily bound to indemnify the insured. In support of his submissions, he also placed reliance upon decision of Hon'ble Delhi High Court in the case titled as "
Rajender Singh & Anr. Vs. Santosh Devi & Ors.", III(2014) ACC 775 (DEL.) and another decision of Punjab and Haryana High Court in the case titled as " United India Insurance Company Limited Vs. Surender & Ors.", 2006 ACJ 1285.
35. The identical question arose before Hon'ble High Court of Andhra Pradesh in the case titled as "Asari Pothalingam & Ors., Vs. Lambadi Mamji & Anr, 2012 ACJ 2117(A.P). In the said case also, only Smt. Lakhpati Devi & Ors. Vs. Jagdev & Ors. Page 19 of 25 MACP No. 522/17; FIR No. 874/16; PS. Narela DOD: 11.02.2021 tractor was insured but the said tractor was attached with trolley at the time of accident which led to death of one labourer travelling therein. Similar contention was made on behalf of insurance company that since trolley was not insured, it is not liable to pay any compensation for damage caused to third party by trolley. While rejecting the said contention, it was held in para 17 of the judgment, after referring to previous decision delivered by Division Bench of A.P. High Court reported at 2009 ACJ 514(A.P), that no separate insurance is contemplated for a trailor and when the trailor is attached to the tractor, which is insured, it becomes a part of the tractor. Similar view has been taken by Division Bench of Punjab and Haryana High Court in case of Surender mentioned supra as also by Division Bench of Andhra Pradesh High Court reported at 2008 (2) Transport and Accidents Cases 582 (A.P).
36. It is not out of place to mention that neither any witness nor any material has suggested that the accident was not caused by the tractor. It is nowhere stated that there was involvement of only trolly in causing the accident even though the insurance company has contended that the accident was taken place with the trolley solely but this fact is not established on record by the insurance company. Witnesses and material available on record have also proved that initially the accident has taken place with the tractor and later the trolley also hit the vehicle of deceased.
Smt. Lakhpati Devi & Ors. Vs. Jagdev & Ors. Page 20 of 25MACP No. 522/17; FIR No. 874/16; PS. Narela DOD: 11.02.2021
37. The perusal of insurance policy (Ex. PW1/6), which is an undisputed document even from the side of insurance company, would show that same had been issued in respect of Agricultural Tractor having validity from 05.09.16 till midnight of 04.09.17.
38. In view of aforesaid discussions, it is held that the insurance company has failed to prove any violation of terms and conditions of insurance policy. Respondent no.1/driver is principal tort feasor. Respondent no.2/owner is vicariously liable for the act of respondent no.1/driver. Respondent no.3 being the insurer is liable to indemnify the insured. Hence, respondent no.3/insurance company is held liable to pay compensation amount. Issue no. 2 is decided accordingly.
ISSUE NO. 3 RELIEF
39. In view of my finding on issues no. 1 & 2, I award a sum of Rs. 21,82,500/ (including interim award amount if any) alongwith interest @ 9% per annum w.e.f date of filing the claim petition i.e. 09.06.2017 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).
Smt. Lakhpati Devi & Ors. Vs. Jagdev & Ors. Page 21 of 25MACP No. 522/17; FIR No. 874/16; PS. Narela DOD: 11.02.2021 APPORTIONMENT
40. It is pertinent to mention here that legal heirs of deceased i.e. petitioners no. 2 to 4 have relinquished their share in the compensation amount in favour of their mother Smt. Lakhpati Devi. Their statements to this effect have been recorded separately. Statements of Smt. Lakhpati Devi, widow of deceased in terms of Clause 29 MCTAP was recorded on 18.01.2020. In view of her statement and keeping in view the facts and circumstances of the case, it is hereby ordered that o ut of the awarded amount, a sum of Rs. 3,00,000/(Rupees Three Lacs Only) is directed to be immediately released to Smt. Lakhpati Devi through her saving bank account no. 37356175858 with State Bank of India, P. Bag, Sonepat Gur Mandi D1, Rohtak, having IFSC Code SBIN0000721 and remaining amount is directed to be kept in the form of FDRs in the multiples of Rs. 50,000/ each for one month, two months, 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:
(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).
(b) The original fixed deposit shall be retained by the bank in safe custody. However, the statement containing FDR number, FDR amount, Smt. Lakhpati Devi & Ors. Vs. Jagdev & Ors. Page 22 of 25 MACP No. 522/17; FIR No. 874/16; PS. Narela DOD: 11.02.2021 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. Jaibir Singh and Others F.A.O No. 842/03 as per clause 31 of MCTAP and Smt. Lakhpati Devi & Ors. Vs. Jagdev & Ors. Page 23 of 25 MACP No. 522/17; FIR No. 874/16; PS. Narela DOD: 11.02.2021 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.
42. Respondent no. 3, being insurer of the 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 Rs. 3,00,000/ immediately in the aforesaid saving bank account of petitioner no. 1 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 and also to counsel for the insurance company for compliance. Copy of this award alongwith one photograph each, specimen signatures, copy of bank passbooks and copy of residence proof of the petitioners, be sent to Nodal Officer of SBI, Rohini Court, Branch, Delhi for information and necessary compliance. Form V & Form VI A in terms of MCTAP are annexed herewith as AnnexureA. Copy of order be also sent to concerned M.M and DLSA as Smt. Lakhpati Devi & Ors. Vs. Jagdev & Ors. Page 24 of 25 MACP No. 522/17; FIR No. 874/16; PS. Narela DOD: 11.02.2021 per clause 31 and 32 of MCTAP.
Digitally signed DEVENDER by DEVENDER
KUMAR KUMAR JANGALA
Date: 2021.02.18
Announced in the open JANGALA 16:19:24 +0530
Court on 11.02.2021
(DEVENDER KUMAR JANGALA)
Judge MACT2 (North)
Rohini Courts, Delhi
Certified that above award contains 25 pages and each page is signed by me.
(DEVENDER KUMAR JANGALA) Judge MACT2 (North) Rohini Courts, Delhi Smt. Lakhpati Devi & Ors. Vs. Jagdev & Ors. Page 25 of 25