Delhi District Court
Smt. Janki Devi vs Rohtash Kumar on 1 December, 2018
IN THE COURT OF SH SANJAY SHARMA, PRESIDING OFFICER,
MOTOR ACCIDENT CLAIMS TRIBUNAL : EAST DISTRICT :
KARKARDOOMA COURTS : DELHI
Suit No. 479/13 (Old No. 79/13)
Unique Case I.D. No.: MACT/4922/2017
1. Smt. Janki Devi
W/o Sh. Sawal Das
..... Wife
2. Baby Bhawna
D/o Sh. Sawal Das
..... Daughter
3. Baby Ananya
D/o Sh. Sawal Das
..... Daughter
4. Sh. Panna Lal
S/o Sh. Ram Prasad
..... Father
5. Smt. Parvati Devi
W/o Sh. Panna Lal
..... Mother
Residents of:
33, M. G. Camp, Shashi Garden,
Patparganj, Delhi - 110091
..... Petitioners
VERSUS
1. Rohtash Kumar
S/o Sh. Jai Singh
R/o H. No. 187, Gali No. 3,
Ambedkar Nagar, Vijay Nagar,
Ghaziabad, U.P.
..... Driver
2. Vijay Kumar
S/o Sh. Balbir Singh
R/o H. No. 265, Vill. Makanpur,
Indirapuram, Ghaziabad, U.P.
..... Owner
3. New India Assurance Company Ltd.
DRO-II, Jeevan Raksha Bhawan,
12/1, Asaf Ali Road, New Delhi.
..... Insurer
..... Respondents
Suit No.: 479/13 Janki Devi & Ors. vs Rohtash Kumar & Ors. 1 of 23
Date of Institution : 04.03.2013
Date of Reserving : 14.11.2018
Date of Judgment : 01.12.2018
JUDGEMENT
PLEADINGS:
1. Mr. Sawal Das, (the deceased), 27 years, born on 15.08.1986, died consequent to 'cranio-cerebral damage' in a motor vehicular accident that occurred at 07.30 a.m. on 05.02.2013 at Traffic Light on NH-24 (leading to Akshardham from Ghaziabad), Mayur Vihar, Phase-II, Delhi while he was riding motorcycle bearing registration No. DL-5 SZ 0212 (the motorcycle), on way to house from office in Sector-63, Noida, when the bus 'TATA' bearing registration No. UP-14 BT 5565 (the bus) allegedly driven in rash and negligent manner by the respondent No. 1 had hit the motorcycle. The petitioners being wife, children and parents of the deceased instituted an accident claim case in the context of detailed accident report submitted by ASI Ved Prakash, CMVAI Cell, East District, Delhi under section 166 (4) of the Motor Vehicles Act, 1988 (MV Act) on the basis of the evidence collected during investigation of criminal case being FIR No. 62/13 under section 279/304-A of the Indian Penal Code, 1860 (IPC) registered at PS Pandav Nagar impleading, inter alia, the driver, registered owner, and insurer of the bus as the party respondents.
2. The respondent No. 1 and 2 filed joint written statement. They denied involvement of the respondent No. 1 and the bus in the accident. They pleaded that the bus was duly insured and had a valid permit.
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3. The respondent No. 3 / insurer, in its written statement, contended that the deceased was driving the motorcycle in rash and negligent manner and had hit the right side of the bus. It pleaded breach of policy on the ground that the bus had no valid permit for Delhi. It denied liability to pay compensation to the petitioners.
ISSUES:
4. On the pleadings, following issues were framed:
(i) Whether the petitioners proved that they are legal representatives of the deceased Sawal Das?
(ii) Whether the petitioners proved that Sawal Dass suffered fatal injuries in a road accident on 05.02.2013 involving vehicle No. UP-14 BT 5565 allegedly driven in a rash and negligent manner by the respondent No. 1?
(iii) To what amount of compensation, if any, the petitioners are entitled to and from whom?
(iv) Relief.
PETITIONER'S EVIDENCE:
5. Smt. Janki Devi / wife of the deceased filed evidence by way of affidavit Ex.PW1/A. She relied on salary certificate for the period from 01.01.2013 to 15.01.2013 Ex.PW1/1, salary certificate for the period from 16.01.2013 to 31.01.2013 Ex.PW1/2, FIR Ex.PW1/3, MLC Ex.PW1/4, certificate of insurance policy in respect of bus Ex.PW1/5, driving license of the deceased Ex.PW1/6, registration certificate of the motorcycle of the deceased Ex.PW1/7, ration card Ex.PW1/8, voter card of the deponent Ex.PW1/9, birth certificate of baby Bhawna Ex.PW1/10, birth certificate of baby Ananya Ex.PW1/11, death certificate Ex.PW1/12, salary certificate issued by Mr. Vipul Goel, Advocate Ex.PW1/13 and academic certificates of the deceased Ex.PW1/14 to Ex.PW1/18.
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6. PW-2 Mr. Vipul Goel, Advocate was examined to prove salary certificate Ex.PW1/13 issued by him.
7. PW-3 Pradeep Kumar Bhardwaj, AVP-Administration, M/s IQOR India Services Pvt. Ltd., A-154A, Sector-63, Noida was examined to prove employment and income of the deceased. He relied on salary slips already Ex.PW1/1 and Ex.PW1/2 respectively, appointment letter Ex.PW3/1, Form 16 for the assessment year 2013-14 Ex.PW3/2 and employment certificate Ex.PW3/3.
RESPONDENT'S EVIDENCE:
8. The respondent No. 3 / insurer examined R3W1 Raj Kumar, senior clerk, RTO, Ghaziabad, U.P. He brought permit register pertaining to issuance of permit vide entry No. 200 dated 05.02.2013 in the name of the respondent No. 2 / owner in respect of bus bearing registration No. UP-14 BT 5565 on 05.02.2013 for one day. Copy of permit and relevant page of the permit issue register are Ex.R3W1/A. He proved a copy of the permit dated 05.02.2013 Ex.R3W1/B.
9. R3W2 ASI Ved Prakash, CMVAI cell, East District, Delhi presented the detailed accident report. He relied on FIR Ex.R3W2/A, site plan of the place of the accident Ex.R3W2/B, seizure memo of the motorcycle Ex.R3W2/C, seizure memo of the bus Ex.R3W2/D, Mechanical Inspection Report of the motorcycle and bus Ex.R3W2/E (colly.) and permit Ex.R3W2/F.
10. R3W3 Sunil Kumar Verma, A.O., New India Insurance Co. Ltd., proved a copy of insurance policy Ex.R3W3/A. He deposed that the insurance company is not liable to pay compensation as there was violation of permit clause.
Suit No.: 479/13 Janki Devi & Ors. vs Rohtash Kumar & Ors. 4 of 23 AWARD:
11. The tribunal, vide judgment and award dated 07.01.2015, awarded compensation in the sum of Rs. 89,98,840/- alongwith interest @ 9% per annum from the date of filing of the petition till realization. APPEAL:
12. Feeling aggrieved, the respondent No. 3 / insurer preferred appeal vide MACA 318/15 tilted as 'New India Assurance Co. Ltd. vs. Janki Devi & Ors.' REMAND:
13. Hon'ble High Court, vide judgment 31.08.2017, set aside the judgment and award dated 07.01.2015 and remitted the accident claim case, as under:
"2. It may be mentioned here that the insurance company in the contest had also pleaded that there was breach of terms and conditions of the insurance policy as the bus did not have a valid road permit for the place where the accident had occurred, it being in State of Delhi, the bus being registered in the State of Uttar Pradesh. The tribunal, however, rejected the said contention and declined to grant recovery rights which were pressed by the insurer.
3. The insurer, by the appeal at hand, has questioned the impugned judgment on various counts including, and primarily, on the ground that there was no proof of negligence on the part of the bus driver. It also questions the computation of compensation and reiterates its plea for recovery rights.
4. The claimants have appeared through counsel on notice. The sixth and seventh respondents, though served, have chosen not to appear at the hearing on the appeal. It is noted that the claimants had examined the first respondent (wife of the deceased) as prime witness (PW-1) to bring on record the necessary proof about the loss of dependency and also the documents relating to the evidence gathered Suit No.: 479/13 Janki Devi & Ors. vs Rohtash Kumar & Ors. 5 of 23 by the police during investigation into the corresponding criminal case, the other witnesses examined on behalf of the claimants being Vipul Goel (PW-2) and Pradeep Kumar Bhardwaj (PW-3), both in connection with the employment and earnings of the deceased.
5. After some hearing, the learned counsel for the claimants conceded that the evidence with regard to the negligence either through mouth-piece of the eye-
witness or at least through the investigating police officer has not been adduced to bring home the case on the principle of fault liability. He, thus, fairly conceded, on instructions, that the impugned judgment may be set aside but his request is that the matter may be remitted to the tribunal so that the claimants get further opportunity to adduce proper evidence in above regard.
6. In the foregoing facts and circumstances, the impugned judgment is set aside. The claim case of the first to fifth respondents is remitted to the tribunal for further inquiry in the course of which opportunity shall be given to the claimants to adduce further evidence. If the contesting parties so request, they would also be given opportunity to lead evidence in rebuttal, if any. After such opportunity has been afforded to the parties which participate the tribunal shall render a fresh decision. The contentions of the insurance company about the computation of compensation respecting the plea of recovery rights are kept open and may be agitated before the tribunal for consideration. Needless to add, the claimants will also be heard in such respect as well."
PROCEEDINGS AFTER REMAND:
14. On remand, the tribunal issued notice to the respondent No. 1 and 2, afforded opportunity to the petitioners and the respondents, recorded additional evidence and heard them.
Suit No.: 479/13 Janki Devi & Ors. vs Rohtash Kumar & Ors. 6 of 23 PETITIONER'S EVIDENCE:
15. The petitioner's examined PW-4 Hari Kishan to prove involvement and rash and negligent driving of the bus. RESPONDENT'S EVIDENCE:
16. The respondent No. 3 / insurer re-examined R3W3 Sunil Kumar Verma, Assistant Manager. He relied on investigator's report Ex.R3W3/X, notice under Order 12 Rule 8 CPC dated 26.12.2017 Ex.R3W3/Y issued to the ESIC and the employer of the deceased for providing details of the payment made to the dependents of the deceased and postal receipts Ex.R3W3/Z (colly.).
17. R3W4 Bhupinder Kaur, Branch Manager, ESIC branch office, Noida, Phase-II, U.P. filed report Ex.R3W4/A that no payment was made to the dependents of the deceased, notice under Order 12 Rule 8 CPC dated 19.02.2018 Ex.R3W4/B issued by the respondent No. 3 / insurer alongwith postal receipt Ex.R3W4/C.
18. R3W5 Pawan Kumar, Social Security Officer, ESIC, Noida admitted receipt of notice under Order 12 Rule 8 CPC dated 19.03.2018 Ex.R3W5/A and postal receipts Ex.R3W5/B and Ex.R3W5/C and letter addressed by Sh. Anil Kumar, Additional Commissioner, ESIC to the tribunal Ex.R3W5/D. ADDITIONAL EVIDENCE:
19. During the course of dictation of judgment, the tribunal could not locate documents exhibited in the evidence of R3W1 Raj Kumar i.e. copy of permit for one day and copy of permit issue register Ex.R3W1/A and copy of permit for one day exhibited as Ex.R3W1/B. Suit No.: 479/13 Janki Devi & Ors. vs Rohtash Kumar & Ors. 7 of 23
20. The tribunal, vide order dated 08.10.2018, issued notice to RTO, Ghaziabad, U.P. to appear alongwith copy of 'permit for one day' dated 05.02.2013, copy of permit issue register dated 04.02.2013 and original application filed by the respondent No. 2 for issuance of one day permit in respect of bus No. UP-14 BT 5565.
21. The office of RTO, Ghaziabad, U.P. informed the tribunal in writing that the register pertaining to the temporary permit and application for issuance of temporary permit were lost by R3W1 Raj Kumar, Sr. Clerk, RTO, Ghaziabad, U.P. on 16.10.2014 while he was enroute to his office from the tribunal after giving evidence.
22. The tribunal, vide order dated 25.10.2018, directed RTO, Ghaziabad, U.P. to appear in person alongwith the record maintained by his office pertaining to the receipt of the application for issuance of temporary permit, copy of cash receipt and amount deposited for issuance of temporary permit.
23. Subsequent thereto, R3W6 Vishwajeet Pratap Singh, ARTO (A), Ghaziabad, U.P. examined. He brought original receipt book from Sl. No. 269201 to 269300 pertaining to additional tax (passenger) and relevant receipt vide Sl. No. 269232 dated 05.02.2013 in the sum of Rs. 1620/- including Rs.
270/- pertaining to vehicle bearing registration No. UP-14 BT 5565 Ex.R3W6/A, receipt book vide Sl. No. B-954801 to B- 954900 pertaining to special permit fees and relevant receipt vide Sl. No. B-954810 dated 05.02.2013 regarding receipt of Rs. 375/- as special permit fees in respect of vehicle bearing registration No. UP-14 BT 5565 Ex.R3W6/B, cash book register Suit No.: 479/13 Janki Devi & Ors. vs Rohtash Kumar & Ors. 8 of 23 for the period from 15.12.2012 to 30.06.2014 and the relevant page dated 05.02.2013 pertaining to permit fees in the sum of Rs. 375/- towards special permit in respect of vehicle bearing registration No. UP-14 BT 5565 Ex.R3W6/C, cash book register for the period from 18.09.2012 to 12.02.2013 and the relevant page containing entry regarding charging of court fees in the sum of Rs. 100/- in respect of vehicle bearing registration No. UP-14 BT 5565 Ex.R3W6/D, attested copy of special permit issued on 05.02.2013 vide P No. 200/SC/13/GJB in the name of Mr. Vinod Kumar in respect of vehicle bearing registration No. UP-14 BT 5565 for the route from Ghaziabad to Mayur Vihar (Delhi) and returned journey for 05.02.2013 on 05.02.2013 Ex.R3W6/E. He deposed that as per record maintained by his office, no special temporary authorization was issued on 04.02.2013 at 7.00 p.m. in respect of vehicle bearing registration No. UP-14 BT 5565. He deposed that special temporary authorization Ex.R3W6/F was not issued by his office.
FINAL ARGUMENTS:
24. I have heard arguments of Sh. S.C. Tiwari, Advocate for the petitioners, Sh. Shiv Kumar Tyagi, Advocate for the respondent No. 1 and 2, and Sh. N.K. Pare, Advocate for the respondent No. 3 / insurer and examined the evidence on the file of the tribunal.
ISSUE NO. 1:
25. The petitioners are wife, minor daughters and parents of the deceased. PW-1 Smt. Janki Devi, wife of the deceased deposed the relationship of the petitioners with the deceased.
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26. PW-1 Smt. Janki Devi relied on ration card Ex.PW1/8, her aadhaar card Ex.PW1/9, birth certificate of Baby Bhavna Ex.PW1/10 and birth certificate of Baby Ananya Ex.PW1/11.
Accordingly, issue No. 1 is decided in favour of the petitioners and against the respondents.
ISSUE NO. 2:
27. In an action instituted on the principle of fault liability under section 166 of the MV Act, proof of rash and driving of the offending vehicle is sine qua non. In a claim on tort liability, the standard of proof is not that cumbersome as that applied in criminal case that of proof beyond reasonable doubts. The evidence is tested on touchstone of principle of preponderance of probabilities.
28. The petitioners, in order to prove rash and negligent driving of the truck, examined PW-4 Hari Kishan. He testified that on 05.02.2013 at about 07.30 a.m., he was driving santro car and standing at red light, Mayur Vihar, Phase-II, Delhi. He had seen the accident from red light. He testified that a motorcycle and a bus were coming from Ghaziabad side and there was red light. He testified that the bus driver took sharp right turn and had hit the motorcycle. According to him, the bus driver took sharp right turn and caused the accident. In his cross-examination conducted by counsel for the respondent No. 1 and 2, he deposed that he had not made call at 100. He deposed that the police did not reach at the place of accident in his presence. He deposed that the distance between him and the motorcycle was 15-20 feet. He deposed that the police recorded his statement on 07.02.2013.
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29. PW-4 Hari Kishan, in his further cross-examination conducted by counsel for the respondent for the respondent No. 3 / insurer, deposed that the traffic signals of the road leading to Ghaziabad and Delhi was green. He deposed that the bus was ahead of the motorcycle and the bus bearing registration No. UP-14BT-5565 was taking U-turn and while taking U-turn, the motorcyclist who was on the right side of the bus was hit by it.
He deposed that the gap between the bus and the motorcycle was about 5 feet. He deposed that the motorcycle fell down on the right side of the bus. He deposed that the motorcycle of the deceased had hit the bus while moving straight towards Akshardham which resulted into heavy damage to the motorcycle as shown in the Mechanical Inspection Report. He admitted that the motorcycle of the deceased had hit the right side of the bus / driver's side.
30. Banking upon the facts elicited from the cross- examination of PW-4 Hari Kishan, counsel for the respondents vehemently contended that the deceased had hit the right side of the bus and caused the accident. They contended that there was no negligence on the part of the respondent No.1 in driving the bus. They contended that the deceased was driving the motorcycle in high speed and therefore, the motorcycle suffered heavy consequent to collision against the right side of the bus.
31. The tribunal is under solemn duty to examine the evidence in entirety. It cannot pick a stray sentence and ignore the entire evidence. The tribunal cannot prefer an isolated sentence over the whole evidence in judging the credibility, authenticity and relevancy of the evidence of a witness.
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32. On holistic examination of the evidence of PW-4 Hari Kishan, it is evident that the bus was moving ahead of the motorcycle on NH-24 leading towards Akshardham from Ghaziabad. It is evident that there was green light for the vehicles moving towards Akshardham from Ghaziabad and similarly, there was green light for the vehicles leading towards Ghaziabad from Akshardham on other side of the road. There was red light at the said traffic signal for the vehicle intending to take right turn / U-turn. It was because of the fact that the road in question is a National Highway and allowing vehicles to take right turn in the wake of vehicles moving on that road would certainly lead to accidents. The motorcycle was moving towards Akshardham. It was on the right side of the bus. The bus driver should have stopped the bus at the traffic signal. However, instead of doing so, he took a sharp right turn and due to the said right turn against the traffic signal, the motorcycle of the deceased collided against the bus. It may be relevant to note that there was no suggestion to the witness that the respondent No. 1 had given any signal or indication that he was intending to take right turn on the moving road in the presence of the vehicle moving straight on the road. The deceased had no reason to anticipate that the respondent No. 1 would be taking right turn on red light. Moreover, the respondent No. 1 had not only taken right turn but he had taken the right turn sharply leaving no time for the deceased who was hardly 5 feet behind to reduce the speed and avoid the collision. It may be relevant to note that the respondent No. 1 neither stated nor deposed his account of the accident.
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33. In his written statement, the respondent No. 1 simply denied his involvement and the involvement of the bus in the accident. He was not examined by the respondent No. 3 to prove the contrary. The evidence of PW-4 Hari Kishan finds corroboration from contemporary documentary evidence. The case FIR Ex.R3W2/A was recorded at 09.25 a.m. on 05.02.2013 within 2 hours from the time of the accident. The motorcycle bearing registration No. DL-5SZ-0212 was found in accidental condition in the middle of NH-24, Mayur Vihar, Phase-II, Delhi. It further records that the bus bearing registration No. UP-14BT-5565 was found on the side of the road in accidental condition. The respondent No. 1 / driver of the bus was also present there. Site plan of the place of accident Ex.R3W2/B would show that the place of collision was in the middle of the road and the motorcycle was lying just near thereto. The motorcycle and bus were seized in accidental condition from the place of the accident vide seizure memos Ex.R3W2/C and Ex.R3W2/D respectively.
34. According to MLC, the deceased was 'brought dead' to Lal Bahadur Shastri Hospital, Khichripur, Delhi-110091 at 08.20 a.m. on 05.02.2013. As noted in the post-mortem report, the cause of death of the deceased was 'cranio-cerebral damage consequent to blunt force impact'.
35. It is, therefore, proved that the deceased died in a motor vehicular accident caused by rash and negligent driving of the bus. Issue No. 2 is decided in favour of the petitioners and against the respondents.
Suit No.: 479/13 Janki Devi & Ors. vs Rohtash Kumar & Ors. 13 of 23 ISSUE NO. 3:
36. The petitioners being wife, minor daughters and parents of the deceased are entitled to seek compensation for his death.
ASSESSMENT OF INCOME OF THE DECEASED:
37. First step towards computation of loss of dependency is the ascertainment of income the deceased.
38. The case of the petitioners, as pleaded in the petition, is that the deceased was employed with iQor India Services Pvt. Ltd. at Plot No. 5, EFGH Tapasaya Corporate Heights, Sector-126, Noida, U.P. on salary of Rs. 32,679/- per month and Mr. Vipul Goel, Advocate at 85, Sukhdev Vihar, New Delhi- 110025 on salary of Rs. 9,500/- per month. PW-1 Janki Devi relied on salary certificate of the deceased for the period from 01.01.2013 to 15.01.2013 Ex.PW1/1 and salary slip for the period from 16.01.2013 to 31.01.2013 Ex.PW1/2 and certificate issued by Mr. Vipul Goel, Advocate Ex.PW1/13. The petitioners examined Mr. Vipul Goel as PW-2. He deposed that the deceased used to attend his office from 6.00 p.m. to 8.00 p.m. The petitioners examined PW-3 Pradeep Kumar Bhardwaj, AVP (Administration), iQor India Services Pvt. Ltd. He proved appointment letter Ex.PW3/1, Form 16 for the assessment year 2013-14 Ex.PW3/2 and employment certificate Ex.PW3/3. He proved salary slips Ex.PW1/1 and Ex.PW1/2 respectively. He deposed that the deceased was drawing gross salary in the sum of Rs. 32,679/- per month. PW-2 Vipul Goel proved that the deceased was working as a part time computer operator in his office and receiving Rs. 9,500/- per month from him.
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39. After deducting income tax liability of Rs. 20,887/-, the net income of the deceased is computed as Rs. 40,090/- per month.
DEDUCTION TOWARDS PERSONAL LIVING EXPENSES:
40. The deceased was survived by wife, two minor daughters and parents. The deceased was survived by 5 dependents. Therefore, there will be deduction to the extent of 1/4th towards personal living expenses of the deceased. APPLICATION OF MULTIPLIER:
41. The deceased was born on 15.08.1986. He was 27 years old. Therefore, multiplier of 17 as applicable to age group between 26 to 30 would apply.
FUTURE PROSPECTS:
42. The deceased was in permanent job. He was below 40 years. Following the ruling of a Constitution Bench of the Supreme Court delivered on 31.10.2017 in SLP (C) 25590/2014, National Insurance Company Ltd. Vs. Pranay Sethi and Ors., there will be addition of income to the extent of 50%.
LOSS OF DEPENDENCY:
43. Applying the multiplier of 17 after making deduction to the extent of 1/4th from the income of the deceased and addition of 50% of future prospects, the loss of dependency is computed as (40,090 x 3 / 4 x 150 / 100 x 12 x 17) = Rs.
92,00,655/-.
Suit No.: 479/13 Janki Devi & Ors. vs Rohtash Kumar & Ors. 15 of 23 NON-PECUNIARY DAMAGES:
44. As per dispensation in Pranay Sethi (supra), Rs.
40,000/- towards loss of consortium and Rs. 15,000/- each on account of loss of estate and funeral expenses are added.
45. The compensation awarded to the petitioners is computed, as under:
Sl. No. Head of compensation Amount
1. Loss of dependency Rs. 92,00,655/-
2. Non-pecuniary (in view of Pranay Sethi (supra) Rs. 70,000/-
Total Rs. 92,70,655/-
LIABILITY:
46. The respondent No. 3 / insurer contended that the deceased was covered under Employees State Insurance Act, 1948 and therefore, the petitioners are not entitled to receive compensation in view of Section 53 of ESI Act. The respondent No. 3 / insurer examined R3W3 Sunil Kumar Verma, Assistant Manager in this regard.
47. R3W4 Bhupinder Kaur, Branch Manager, ESIC Branch Office, Noida, Phase-II, U.P. proved that the employer of the deceased has not filed any report regarding the accident. She categorically deposed that the dependents of the deceased have not been given any benefit under ESIC Pension or any another benefit. R3W5 Pawan Kumar, Social Security Officer, ESIC, Sub-Regional Office, Sector-57, Noida, U.P. categorically deposed that the employer of the deceased has not submitted action information report and therefore, the case was not processed for compensation. He deposed that the petitioners have neither claimed nor received any compensation from ESIC Suit No.: 479/13 Janki Devi & Ors. vs Rohtash Kumar & Ors. 16 of 23
48. In Smt. Lalita Devi & Anr. versus Mukesh Kumar & Ors., MAC APP. 757/2012 decided on 22.11.2017, Hon'ble High Court of Delhi held that 'the claimants having chosen to claim compensation under the Motor Vehicles Act, 1988', they cannot be denied just compensation there under.
49. In the present case, the deceased did not suffer fatal injuries during the course of employment. Therefore, the contention of the respondent No. 3 / insurer that the petitioners should have filed a claim under Employees State Insurance Act, 1948 is without merit. (Ref: Oriental Insurance Co. Ltd. versus Sanjay Kumar Singh & Ors., MAC APP. 189/2012 decided on 01.08.2013).
50. The respondent No. 3 / insurer contended that the bus was used on the public road without valid permit. Ld. Counsel for the respondent No. 1 and 2 submitted that the bus was on public road on a valid 'special temporary permit' and 'special temporary authorization'.
51. R3W1 Raj Kumar, Sr. Clerk, RTO, Ghaziabad, U.P. brought original permit issue register and original application submitted by the respondent No. 2. However, during the course of judgment, it revealed that copy of permit issue register Ex.R3W1/A and copy of permit Ex.R3W1/B were not on the file of the tribunal. The tribunal, vide order dated 01.10.2018, summoned the said record. The tribunal was informed by the office of RTO, Ghaziabad that R3W1 Raj Kumar had lost original permit issue register and original application submitted by the respondent No. 2 when he was on his way to his office after giving evidence before the tribunal on 16.10.2014.
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52. R3W6 Vishwajeet Pratap Singh, ARTO, Ghaziabad, U.P. was examined by the tribunal.
53. It may be that R3W1 Raj Kumar had lost original permit issue register and original application submitted by the respondent No. 2 for issuance of permit and copies thereof already exhibited as Ex.R3W1/A is not on the file of the tribunal. In his evidence, he categorically deposed that permit was issued in favour of the respondent No. 2 in respect of the bus for one day vide entry No. 200 dated 05.02.2013 against deposit of Rs. 375/- vide receipt No. 954810 dated 05.02.2013. He categorically deposed that the said permit and amount was deposited on 05.02.2013 during office hours from 10.00 a.m. to 5.00 p.m. It may be relevant to note that R3W6 Vishwajeet Pratap Singh produced the original receipt book vide Sl. No. B- 954801 to B-954900 pertaining to special permit fees and relevant receipt vide Sl. No. 954810 dated 05.02.2013 regarding receipt of Rs. 375/- as special permit fees in respect of the bus is Ex.R3W6/B. R3W1 Raj Kumar deposed that the said permit was issued on deposit of Rs. 270/- vide receipt No. 269232 dated 05.02.2013. R3W6 Vishwajeet Pratap Singh brought original receipt book from Sl. No. 269201 to 269300 pertaining to additional tax (passenger) and relevant receipt vide Sl. No. 269232 dated 05.02.2013 in the sum of Rs. 1620/- including Rs. 270/- pertaining to the bus Ex.R3W6/A. He brought cash book register for the period from 15.12.2012 to 30.06.2014 and relevant page dated 05.02.2013 pertaining to permit fees in the sum of Rs. 375/- towards special permit in respect of the bus Ex.R3W6/C. Suit No.: 479/13 Janki Devi & Ors. vs Rohtash Kumar & Ors. 18 of 23
54. R3W6 Vishawajeet Pratap Singh brought copy of special temporary permit issued on 05.02.2013 vide P No. 200SC/13/GJB in the name of the respondent No. 2 Ex.R2W6/E. He deposed that 'special temporary authorization' Ex.R3W6/F was not issued by his office.
55. It is, therefore, evident that the special temporary permit was issued by the office of RTO, Ghaziabad, U.P. on 05.02.2013 during working hours from 10.00 a.m. to 5.00 p.m. The accident in question had already taken place at 7.30 a.m. on 05.02.2013. It is proved that the bus was on the public road without permit. The respondent No. 2 breached material term of the insurance policy Ex.R3W3/A. The policy covers use only under a permit within the meaning of Motor Vehicles Act, 1988. Therefore, the respondent No. 2 violated fundamental term of the insurance policy by plying the bus on the public road without permit. However, breach of material term of insurance policy would not exonerate the insurance company. The insurance company shall, at the first instance, pay the compensation to the petitioners. The respondent No. 3 / insurer is granted recovery rights against the respondent No. 1 and 2.
AWARD
56. The petitioners are awarded compensation in the sum of Rs. 92,71,000/- (rounded of) alongwith interest @ 9% per annum from the date of filing of the petition till the date of award. The respondent No. 3 / insurer shall deposit the award amount with the tribunal within 30 days and otherwise, the award amount will carry interest @ 9% per annum from the date of filing of the petition till realization.
Suit No.: 479/13 Janki Devi & Ors. vs Rohtash Kumar & Ors. 19 of 23 APPORTIONMENT AND MODE OF DISBURSAL:
57. The petitioner No. 1 to 5 shall be entitled to the awarded amount in the ratio of 40:10:10:20:20.
58. The petitioner No. 1 / Smt. Janki Devi shall be entitled to amount of Rs. 37,08,400/- alongwith corresponding interest, being 40% of the award amount. An amount of Rs. 5,08,400/- will be released to the petitioner No. 1 and balance amount of Rs. 32,00,000/- alongwith accrued interest will be secured in the form of fixed deposit receipts for the period, as under:
Sl. No. Amount Period of FDR
1. Rs. 4,00,000/- 1 year
2. Rs. 4,00,000/- 2 years
3. Rs. 4,00,000/- 3 years
4. Rs. 4,00,000/- 4 years
5. Rs. 4,00,000/- 5 years
6. Rs. 4,00,000/- 6 years
7. Rs. 4,00,000/- 7 years
8. Rs. 4,00,000/- 8 years
9. Interest component 9 years
59. An amount of Rs. 9,27,100/- each alongwith
corresponding interest, being 10% of the award amount, will be secured in the form of fixed deposit receipts in the name of the petitioner No. 2 / Baby Bhawna and the petitioner No. 3 / Baby Baby Ananya till they attain the age of majority.
60. The petitioner No. 4 / Sh. Panna Lal shall be entitled to amount of Rs. 18,54,200/- alongwith corresponding interest, being 20% of the award amount. An amount of Rs. 2,54,200/- will be released to the petitioner No. 4 / Sh. Panna Lal and balance amount of Rs. 16,00,000/- alongwith accrued interest will be secured in the form of fixed deposit receipts for the period, as under:
Suit No.: 479/13 Janki Devi & Ors. vs Rohtash Kumar & Ors. 20 of 23 Sl. No. Amount Period of FDR
1. Rs. 2,00,000/- 1 year
2. Rs. 2,00,000/- 2 years
3. Rs. 2,00,000/- 3 years
4. Rs. 2,00,000/- 4 years
5. Rs. 2,00,000/- 5 years
6. Rs. 2,00,000/- 6 years
7. Rs. 2,00,000/- 7 years
8. Rs. 2,00,000/- 8 years
9. Interest component 9 years
61. The petitioner No. 5 / Smt. Parvati Devi shall be entitled to amount of Rs. 18,54,200/- alongwith corresponding interest, being 20% of the award amount. An amount of Rs. 2,54,200/- will be released to the petitioner No. 5 / Smt. Parvati Devi and balance amount of Rs. 16,00,000/- alongwith accrued interest will be secured in the form of fixed deposit receipts for the period, as under:
Sl. No. Amount Period of FDR
1. Rs. 2,00,000/- 1 year
2. Rs. 2,00,000/- 2 years
3. Rs. 2,00,000/- 3 years
4. Rs. 2,00,000/- 4 years
5. Rs. 2,00,000/- 5 years
6. Rs. 2,00,000/- 6 years
7. Rs. 2,00,000/- 7 years
8. Rs. 2,00,000/- 8 years
9. Interest component 9 years
62. The respondent No. 3 / insurer is granted recovery rights against the respondent No. 1 and 2 for recovery of the award amount alongwith up to date interest by way of appropriate proceedings and liability of the respondent No. 1 and 2 shall be joint and several.
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63. Copy of award be supplied to the petitioners and the respondents for compliance. File be consigned to record room.
SANJAY Digitally signed by SANJAY SHARMA Location: East District, Karkardooma Courts, Delhi SHARMA Announced in the open Court Date: 2018.12.04 09:58:26 +0530 Sh. Sanjay Sharma Dated: 01st December, 2018 Presiding Officer MACT (East) Karkardooma Court, Delhi Suit No.: 479/13 Janki Devi & Ors. vs Rohtash Kumar & Ors. 22 of 23 Suit No. 479/13 01.12.2018 Present : Sh. S.C. Tiwari, Advocate with the petitioner No. 4.
Sh. Shiv Kumar Tyagi, Advocate for R1 and R2. Sh. N.K. Pare, Advocate for R3 / Insurance Co.
Vide separate judgment, award is passed. To come up for compliance on 03.01.2019.
Sanjay Sharma PO MACT (East)/KKD Delhi/01.12.2018 Suit No.: 479/13 Janki Devi & Ors. vs Rohtash Kumar & Ors. 23 of 23