Delhi District Court
Smt. Priyanka vs Sh. Tufani Yadav on 24 December, 2022
IN THE COURT OF SH. RAKESH KUMAR -IV:PRESIDING
OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNAL:(WEST-
02):THC:DELHI
MACT Case No. 126/2019
CNR No.-DLWT01-001425-2019
1. Smt. Priyanka
W/o Late Sh. Neeraj Kumar (wife of deceased)
2. Ishit Bhardawaj
S/o Late Sh. Neeraj Kumar(son of deceased)
3. Raj Kishan
S/o Sh. Kanwal Singh (father of deceased)
4. Sunita
W/o Sh. Raj Kishan (mother of deceased)
(Petitioner No. 2 is minor through his mother
and natural guardian Smt. Priyanka of petitioner no.1)
All R/o
House No. 198, Sunaro Wali Gali,
Kanjhawala, Delhi 110081
.......... Petitioners
Versus
1. Sh. Tufani Yadav
S/o Sh. Ram Dass Yadav
R/o RZ-H 208, Nihal Vihar
Nangloi, Delhi(Driver)
2. Sh. Amit Sharma
S/o Sh. Zile Ram Sharma
R/o RZ-108, Syed Nangloi,
Paschim Vihar, Sunder Vihar
Delhi 110087(Owner)
3. New India Assurance Co. Pvt. Ltd.
(Insurer)
......Respondents
Digitally signed
by RAKESH
RAKESH KUMAR Date:
KUMAR 2022.12.24 15:52:45 +0530 MACT Case No. 126/2019 Priyanka & Ors. Vs. Tufani Yadav & Ors. Page No. 1/32 Date of Institution : 22.02.2019 Date of reserving order/judgment : 26.11.2022 Date of pronouncement : 24.12.2022 A W A R D:
FORM-XVII COMPLIANCE OF THE PROVISIONS OF THE MODIFIED CLAIMS TRIBUNAL AGREED PROCEDURE
1. Date of the accident 12.11.2018
2. Date of filing of Form-I - First Accident FAR is not filed in the Report (FAR) present case
3. Date of delivery of Form-II to the Form-II not filed in the victim(s) present case
4. Date of receipt of Form-III from the Form-III not filed in the Driver present case
5. Date of receipt of Form-IV from the Form-IV not filed in the Owner present case
6. Date of filing of the Form-V-Interim Form-V not filed in the Accident Report (IAR) present case
7. Date of receipt of Form-VIA and Form- Form-VIA and VIB not VIB from the Victim(s) filed in the present case
8. Date of filing of Form-VII - Detailed DAR filed on 22.02.2019. Accident Report (DAR)
9. Whether there was any delay or The accident in question deficiency on the part of the Investigating took place on 12.11.2018 Officer? If so, whether any action/ direction warranted?
10. Date of appointment of the Designated 22.04.2019 Officer by the Insurance Company
11. Whether the Designated Officer of the No Insurance Company submitted his report within 30 days of the DAR?
12. Whether there was any delay or No deficiency on the part of the Designated Digitally signed by RAKESH MACT Case No. 126/2019 RAKESH KUMAR Date:
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Officer of the Insurance Company? If so, whether any action/direction warranted?
13. Date of response of the claimant(s) to the 22.04.2019 offer of the Insurance Company
14. Date of the award 24.12.2022
15. Whether the claimant(s) was/were Yes directed to open savings bank account(s) near their place of residence?
16. Date of order by which claimant(s) 22.02.2019 was/were directed to open savings bank account(s) near his place of residence and produce PAN Card and Aadhaar Card and the direction to the bank not issue any cheque book/debit card to the claimant(s) and make an endorsement to this effect on the passbook
17. Date on which the claimant(s) produced 13.12.2022 the passbook of their savings bank account near the place of their residence along with the endorsement, PAN Card and Adhaar Card?
18. Permanent Residential Address of the House No. 198, claimant(s) Sunaro Wali Gali, Kanjhawala, Delhi 110081
19. Whether the claimant(s) savings bank Yes account(s) is near his place of residence?
20. Whether the claimant(s) was/were Yes examined at the time of passing of the award to ascertain his/their financial condition?
1. This judgment -cum- award shall decide the petition under Section 166 and 140 of Motor Vehicle Act 1988 as amended up to date (hereinafter referred to as the 'Act') filed by the petitioners for grant of compensation for the death of the Digitally signed by RAKESH RAKESH KUMAR KUMAR Date:MACT Case No. 126/2019
2022.12.24 15:53:06 +0530 Priyanka & Ors. Vs. Tufani Yadav & Ors. Page No. 3/32 deceased Sh. Neeraj Kumar in the road vehicular accident.
2. Brief facts of the case are that on 12.11.2018 at about 12:30 PM, the deceased met with an accident and hit by the driver of the truck bearing no. DL-1GC-7225 due to rash and negligent driving of driver of the offending vehicle i.e. Truck, which was driven by Tufani Yadav, the driver of the truck. It has been further stated that the said truck hit the pedestrian (deceased Neeraj Kumar), who just took one or two steps ahead to cross the road. It has been further stated that the deceased was taken to Sanjay Gandhi Memorial Hospital, Delhi where he was declared dead and the MLC bearing no. 18104 was also prepared. It has been further stated that the postmortem of the deceased was conducted at Sanjay Gandhi Memorial Hospital, New Delhi.
3. As a result of the abovesaid accident, as per the case of the petitioners, FIR No. 548/2018 dated 12.11.2018:
P.S. Mundka u/s 279/304A IPC was registered against the respondent No.1.
4. It has been further stated that the deceased was working as Conductor in DTC on contract basis and earning around Rs. 18,000/- to Rs. 20,000/- per month.
5. It has been further stated that the deceased is survived by his wife, one minor child and his father and mother. It has been further stated that the petitioner no.1 is the wife of the deceased, the petitioner No.2 is the minor son of the deceased and the petitioner No.3 & 4 are the parents of the deceased.
6. It has been further stated that the respondent no.1 Digitally signed by RAKESH RAKESH KUMAR KUMAR Date:
2022.12.24 15:53:14 +0530 MACT Case No. 126/2019 Priyanka & Ors. Vs. Tufani Yadav & Ors. Page No. 4/32 being the driver of the offending vehicle, the respondent no.2 being the owner of the offending vehicle and the respondent no.3 being the owner of the offending vehicle are jointly liable to pay the compensation to the petitioner.
7. Written statement has been jointly filed by the respondents No.1 & 2 stating therein that the accident was caused with some other vehicle and their vehicle was not involved in the accident. It has been further stated that the respondent no.1 and 2 are not liable to pay any compensation as the respondent no.1 is having a valid driving license bearing no. DL0419940093601. It has been further stated that the offending vehicle was duly insured vide policy no. 31160331180300000116 from 04.09.2018 to 03.09.2019 and having valid permit no. DL/51/GP/HGV/2017/204 valid upto 10.10.2022. It has been prayed that the present claim petition be dismissed.
8. Written statement has also been filed on record by the insurance company wherein it has been admitted that the said offending vehicle bearing No. DL-1-GC-7225 was insured in the name of Mr. Amit Sharma vide policy no. 31160331180300000116 valid with effect from 04.09.2018 to 03.09.2019. It has been further stated the alleged offending vehicle is an Oil Tanker and according to Rules 9 and 132 of the Central Motor Vehicle Rules, 1989, there is requirement of a specific endorsement in license in order to drive a transport vehicle carrying goods of dangerous or hazardous nature. It has been further stated that proviso of Section 14(2) (a) of the Motor Vehicles Act, 1988 provides that in case of licence to Digitally signed RAKESH by RAKESH KUMAR KUMAR Date: 2022.12.24 15:53:24 +0530 MACT Case No. 126/2019 Priyanka & Ors. Vs. Tufani Yadav & Ors. Page No. 5/32 drive a transport vehicle carrying goods of dangerous or hazardous nature be effective for a period of one year and renewal thereof shall be subject to the condition that the driver undergoes one day refresher course of prescribed syllabus. It has been further stated that there was no specific endorsement to drive vehicle carrying goods of hazardous or dangerous nature at the time of accident i.e. 12.11.2018. It has been prayed that the insurance company be absolved from any liability and in the alternative, recovery rights be granted.
9. After hearing the arguments and going through the pleading of the parties, following issues were framed by this Tribunal on 22.04.2019:-
1. Whether the deceased Sh. Neeraj Kumar sustained fatal injuries in an accident that took place at about 12.30 pm on 12.11.2018 near Metro Pillar no.
658, near Ghevra Mor, Rohtak Road, Delhi involving Oil Tanker bearing registration no. DL-1GC-7225 (offending vehicle) by the respondent no.1 in a rash and negligent manner and owned by the responden tno.2 and insured by respondent no.3? OPP.
2. Whether the petitioner is entitled to compensation? If so, to what amount and from whom? OPP.
3. Relief.
10. In order to establish their claim, the petitioners have examined the petitioner No.3 Raj Kishan as PW-1 and in his evidence by way of affidavit, he has reiterated and reaffirmed the stand as taken by the petitioners in the present claim petition.
PW1 has filed on record the following documents:- Digitally signed
by RAKESH
KUMAR
RAKESH Date:
KUMAR 2022.12.24
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(1) Affidavit of Raj Kishan Ex.PW1/A
(2) Copy of DAR Ex.PW1/1
(3) Copy of Aadhar card of Priyanka, Master Ex.PW1/2 to
Ishit Bhardawaj, Raj Kishan and Sunita Ex.PW1/5(OSR) (4) Copies of 10th and 12th passed certificate of deceased Neeraj Mark A and B (5) Copy of certificate from John Ambulance Association for First Aid Training Mark C (6) List bearing name of deceased whereby he was selected for the post of conductor basis Mark D (7) List bearing name of deceased whereby he recommended for the post of conductor on contract basis. Mark E.
11. In the cross examination done by Ld. Counsel for the respondent No.3, PW-1 deposed that his deceased son was doing private job and he did not have any document in respect of his private job. PW1 further deposed that he did not have any salary slip of his deceased son. PW1 admits it to be correct that he had not witnessed the accident in question. PW1 further deposed that the wife of the deceased is house wife. PW1 further deposed that his wife is also house wife. PW1 further deposed that his deceased son had one son aged about 3 years. PW1 has denied that his deceased son was not gainfully employed anywhere at the time of accident. PW1 admits it to be correct that he has not filed any document in respect of the amount incurred by him at the time of last rite of his deceased son. PW1 has denied that he had not incurred any such amount or that for this reason, he has not filed any document. Digitally signed by RAKESH RAKESH KUMAR KUMAR Date:
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12. Ld. Counsel for the petitioners on an application has again examined PW1 and in his examination in chief, he has exhibited the mark A and mark B as Ex.PW1/7 and Ex.PW1/8.
13. In the cross-examination, PW1 has filed on record the copy of mark sheets of Xth and XIIth passed as Ex.PW1/R3A(colly, 2 pages, OSR) and Ex.PW1/R3B(one page, OSR).
14. The petitioners have further examined eye witness Sh. Rohit Singh as PW4 and this witness in his evidence by way of affidavit Ex.PW2/A has reiterated and reaffirmed the stand as taken by the petitioners in their claim petition.
15. In the cross-examination done by the Ld. Counsel for the insurance company, PW2 deposed that the accident took place on 12.11.2018 and it was about 12.30 pm when the accident took place near pillar no. 656 or 658 in front of Indian Oil. PW2 further deposed that the said area was not crowded. PW2 further deposed that he was going towards Bahadurgarh on his motor cycle and he had seen the offending truck of Indian Oil bearing registration no. DL-1GC-7225 which was being driven at high speed and the deceased was crossing the road and the offending truck his against the deceased. PW2 deposed that the truck was at a visible distance from him i.e. about 100-150 meter. PW2 further deposed that the deceased was not known to him prior to the accident and he had made call at number 100 but before him, some public person had also made call at number 100. PW2 further deposed that the deceased was removed to Sanjay Gandhi Hospital. PW2 admits it to be correct that he was working at Kopal Papers Pvt. Ltd.
Digitally signed by RAKESH RAKESH KUMAR
MACT Case No. 126/2019 KUMAR Date:
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Pitam Pura, Delhi and on the day of accident also, he was working at the same office. PW2 further deposed that his duty hours are 10 am to 7 pm. PW2 further deposed that on the day of accident, he was going to Bahadurgarh for official work. PW2 has denied that he had not witnessed the accident in question.
16. In the cross-examination done by the Ld. Counsel for the respondent no.1 and 2, PW2 deposed that there was no zebra crossing at the place of accident and the traffic signal was situated at a distance of 500 meters from the place of accident. PW2 has denied that he was not an eye witness to the accident. PW2 deposed that there was no heavy traffic on the road at the time of accident. PW2 further deposed that he ascertained the speed of offending truck as high speed as the same over took his motorcycle which was @ speed of 40-50 km per hour. PW2 further deposed that he was working as a Salesman and he visited his office only once in a week. PW2 has denied that he had not witnessed the accident in question or that he has been planted in the present case.
17. The respondent no.1 has examined himself as R1W1 and in his evidence by way of affidavit Ex.R1W1/A, he has taken the stand as taken by him in his written statement. He has relied upon the following documents:-
(1) Copy of insurance policy Ex.PW1/1 (2) Copy of training certificate bearing no.
OSMDTS-HGT-15326 of safe transportation of hazardous goods Mark X. (3) Copy of RC of vehicle no. DL-1GC-7225 Ex.R1W1/3 (4) Copy of permit Ex.R1W1/4 Digitally signed RAKESH by RAKESH KUMAR MACT Case No. 126/2019 KUMAR Date: 2022.12.24 Priyanka & Ors. Vs. Tufani Yadav & Ors. Page No. 9/32 15:54:00 +0530 (5) Copy of fitness certificate Ex.R1W1/5(OSR) (6) Copy of DL bearing no. DL0419940093601 Ex.R1W1/6(OSR)
18. In the cross-examination done by the Ld. Counsel for the respondent no.3, R1W1 admits that at the time of accident, he was driving the vehicle in question. R1W1 deposed that he did not know the contents of Ex.R1W1/A but the same bears his signature. R1W1 submits that at the time of driving of vehicle in question, he possessed valid D/L with him and he was driving the vehicle bearing no. 7225 which was oil tanker. R1W1 deposed that he possessed valid DL to drive vehicle with hazardous goods. R1W1 admits it to be correct that Ex.R1W1/6 did not bear specific endorsement in respect of driving of vehicle with hazardous goods.
19. The respondents have further examined Sh. Ankit Tyagi from Om Sai Motor Driving School as R1W2 and this witness deposed that he has been authorised by Om Sai Motor driving training school vide authority letter Ex.R1W2/A bearing his signature at point A. R1W2 further deposed that the driver namely Tufani Yadav had undergone training for driving vehicle carrying hazardous goods.
20. The respondents have further examined Sh. Krishan Kumar, Field Executive Officer as R1W3 and in his evidence, he has deposed that he has been authorized to depose on behalf of Om Sai Motor Driving Training School. R1W3 deposed that a person namely Toofani Yadav, son of Sh. Ram Das Yadav had done driving training to carry hazardous goods from their school Digitally signed by RAKESH RAKESH KUMAR MACT Case No. 126/2019 KUMAR Date:
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(1) His authority letter Ex.R1W3/1 (2) Duty attested resignation letter of Ankit Tyagi, who was partly examined Ex.R1W3/1 (3) Duly attested attendance sheet depicting name of Toofani Yadav, who did training from their school Ex.R1W3/1 (4) Duly attested certificate issued by their school for the said said training Ex.R1W3/1 (5) Duly attested license issued to them by Government of UP, Meerut to provide training to the drivers Ex.R1W3/1 (6) Gazette notification of Govt. of UP containing the permission to give training to the drivers carrying hazardous goods(OSR)Ex.R1W3/1
21. In the cross-examination done by the Ld. Counsel for the respondent no.3, R1W3 deposed that the school used to give training to carry hazardous goods to the drivers usually for three days. R1W3 deposed that the certificate of training is valid for one year. R1W3 deposed that they do not use to give any endorsement on the licence of the driver for the said training. R1W3 deposed that at the time of accident i.e. 12.11.2018, their licence to provide the training was duly valid and the relevant period of validity is marked from point A to A1 at page no. 6.
22. The respondent no. 3 has examined Sh. Pramindra Singh, Clerk, RTO, Janak Puri as R3W1 and this witness has deposed that he has been authorized by MLO to depose vide Digitally signed by RAKESH RAKESH KUMAR KUMAR Date:
2022.12.24 MACT Case No. 126/2019 15:54:15 +0530 Priyanka & Ors. Vs. Tufani Yadav & Ors. Page No. 11/32 authority letter as Ex.R3W1/A. R3W1 has brought the record in respect of D/L i.e. extract of D/L bearing no. 0419940093601 in the name of Tufani Yadav s/o Sh. R.D. Yadav R/o RZH-208, Nihal Vihar, Nangloi, Delhi-41. R3W1 further deposed that as per record, the D/L was issued for MLV and it was found valid with effect from 27.05.2019 to 26.05.2024 and the said D/L was also valid for HMV with effect from 27.05.2019 to 26.05.2022. R3W1 further deposed that the record also bears details in respect of previous renewal of D/L and the attested copy of extract is Ex.R3W1/B. R3W1 further deposed that as per the extract of D/L, the said D/L was not valid for driving vehicle carrying hazardous goods.
23. In the cross-examination done by the respondents no.1 and, R3W1 deposed that the D/L was valid for driving HTV on 12.11.2018 i.e. on the date of accident. R3W1 further deposed that he did not know if any specific endorsement is required on the D/L for driving the vehicle carrying hazardous goods.
24. The respondent no.3 has further examined Ms. Nikhita Bhownik, Assistant Manager as R3W1 and this witness has filed the verified copy of insurance policy in respect of vehicle no. DL-1G-C-7225 as Ex.R3W1/A and the said policy was valid from 04.09.2018 to 03.09.2019. R3W1 has further deposed that the terms and conditions are mentioned at point A on Ex.R3W1/A. R3W1 has further deposed that notice under Order 12 Rule 8 CPC was sent to driver and owner of the vehicle and copies of the same alongwith postal receipts are Ex.R3W1/B and Ex.R3W1/C.
25. In the cross-examination done by the Ld. Counsel Digitally signed by RAKESH RAKESH KUMAR Date:
KUMAR 2022.12.24 15:54:24 +0530 MACT Case No. 126/2019 Priyanka & Ors. Vs. Tufani Yadav & Ors. Page No. 12/32 for the respondents no.1 and 2, R3W1 has admitted that the documents sought through notice were with the owner of the vehicle. R3W1 has denied that there was no breach of policy. By way of volunteer, R3W1 deposed that there was no endorsement for driving vehicle carrying hazardous goods at the time of accident, there was breach of policy.
26. I have thoroughly gone through the testimony of the witnesses and perused the record. I have also given my thoughtful consideration to the arguments addressed by learned counsel for the petitioners and by the Ld. Counsel for the respondents no.1 and 2. In the written final arguments, Ld. Counsel for the petitioners submit that the petitioner no.4 has expired on 14.04.2021. The petitioners have been examined under the MCTAP on 13.12.2022 .
27. In the written final arguments, Ld. Counsel for the respondent no.1 and 2 has relied upon the authority of the Hon'ble High Court of Delhi titled as National Insurance Co. Ltd. Vs. Sonia Mittal & Ors, it has been held in para no. 11 as under:-
Para no. 11 .. Coming to the defence taken by the insurance company vis-a-vis the driver and owner of the offending vehicle, what distinguishes the case at hand is that the driver of the offending vehicle had undergone the requisite training which had been duly certified. There is nothing on record to show that the insurance company raises questions about the validity of the training certificate. It is insisting merely on the fact that there was no endorsement secured from the transport authority in terms of the requirement under the rules.Digitally signed by RAKESH
RAKESH KUMAR KUMAR Date:
2022.12.24 MACT Case No. 126/2019 15:54:32 +0530 Priyanka & Ors. Vs. Tufani Yadav & Ors. Page No. 13/32 That, however, ought not cut any ice. What is the crucial requirement is the special training for driving a vehicle meant for transportation of hazardous goods. That requirement had been fulfilled. Securing of endorsement in wake of such certification of the special skill was more of ministerial nature. The rule of main purpose would apply. The plea of insurers for recovery rights is, therefore, rejected.
28. Ld. Counsel for the respondent no.1 and 2 has further relied upon the authority of Hon'ble Apex Court cited as 2004 ACJ 1: 2004 (1) TAC 321 (SC), it was held by the Hon'ble Supreme Court that training is sufficient for driving the hazardous goods vehicle and endorsement is only of ministerial nature.
29. During the course of addressing the final arguments, Ld. Counsel for the respondent no.1 and 2 has relied upon the authority of National Insurance Co. Ltd. Vs. Swaran Singh & Ors., where it has been held as under:-
".... Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of accident. The Tribunals is interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under section 149 (2) of the Act.
My findings on various issues are as under :-ISSUE NO. 1
30. The present petition has been filed by the petitioners u/s 140 & 166 M. V. Act and the onus is upon the petitioners to prove the rash and negligent act of the respondent No.1.Digitally signed by RAKESH RAKESH KUMAR KUMAR Date:
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31. The petitioners have examined the petitioner No. 3 as PW-1 and he has well explained the mode and manner of accident. He has reaffirmed and reiterated the averments made in the petition. During his entire cross examination, nothing has come out so as to discredit his testimony.
32. The petitioners have also examined Sh. Rohit Singh as PW-2, eye witness, who has proved rash and negligent driving of the respondent no.1 at the time of accident. PW-2 has given the minute details of the accident in question. PW-2 has elaborately spoken about the rash and negligent driving of the offending vehicle by the respondent No.1. During the entire cross examination of PW-2, nothing has come out so as to discredit his testimony. I have no hesitation to hold that the testimony of PW-2 is streamlined, reliable and trustworthy and the same has not been shaken at all during his entire cross- examination.
33. Ld. Counsel for the petitioners has claimed that in the case in hand, the charge-sheet pertaining to FIR No. 548/2018 dated 12.11.2018: P.S. Mundka u/s 279/304A IPC was registered against the respondent No.1.
34. In Bimla Devi & Ors vs. Himachal Road Transport Corporation & ors (2009) 13 SC 530, in Kaushnumma Begum and others v/s New India Assurance Company Limited, 2001 ACJ 421 SC, in National Insurance Co. Ltd. vs. Pushpa Rana cited as 2009 ACJ 287, it has been held that the negligence has to be decided on the touchstone of preponderance of probabilities and a holistic view is to be taken. It has been further held that the proceedings under the Motor Vehicle Act are not akin to the Digitally signed by RAKESH RAKESH KUMAR Date: KUMAR 2022.12.24 MACT Case No. 126/2019 15:54:48 +0530 Priyanka & Ors. Vs. Tufani Yadav & Ors. Page No. 15/32 proceedings in a Civil Suit and hence, strict rules of evidence are not applicable.
35. In the light of the abovesaid discussion, to my mind, the petitioners have been able to prove issue No.1 in their favour and accordingly, the issue No.1 is decided in favour of the petitioners.
COMPENSATION / ISSUE NO. 236. The petitioner No.1 has filed on record copy of Aadhar Card of the deceased as Ex. PW1/6 in which the date of birth of the deceased has been mentioned as 17.09.1985. The date of accident is 12.11.2018. Accordingly, the age of the deceased is taken as 34 years on the date of accident.
37. As per the affidavit of PW1, the deceased was employed as Conductor in DTC of contractual basis and getting the salary of Rs. 18,000/- to Rs. 20,000/- per month. But the petitioner No.1 i.e. PW-1 in his cross-examination has stated that he does not have any documentary evidence to show the job/work/employment of his late son or to show his income. However, he has filed on record the photocopy of 10th and 12th certificates as Ex.PW1/7 and Ex. PW1/8 and also the mark sheets as Ex.PW1/R3A and Ex.PW1/R3B. As such, to my mind, the income of the deceased can very well be assessed on the basis of the chart available in the Minimum Wages Act of Matriculate person. The date of accident is 12.11.2018 on which the minimum wages for Matriculate person for the relevant period were Rs 16,962/- per month.
38. The petitioners no.1 and 3 have been RAKESH examinedDigitally on signed by RAKESH KUMAR KUMAR Date:
2022.12.24 15:54:57 +0530 MACT Case No. 126/2019 Priyanka & Ors. Vs. Tufani Yadav & Ors. Page No. 16/32 13.12.2022 under MCTAP and her statement has also been considered by this Tribunal.
39. In the DAR, it has been mentioned that the petitioner No.1 is the wife of the deceased, the petitioner No.2 is the minor son of the deceased and the petitioners No.3 & 4 are the parents of the deceased. No dispute has been raised by the respondents so far as the abovesaid four legal heirs of the deceased are concerned. As such, there were only four legal heirs / dependents on the deceased at the time of accident. In terms of the judgment of the Hon'ble Supreme Court of India in 'Sarla Verma Vs. DTC decided on 15.4.2009 in C.A. No. 3483/08', the deceased might have been spending one- fourth of Rs. 16962/- on his personal expenses as he had left behind only four dependents on the deceased. Therefore, after deducting one- fourth towards personal expenses, the loss of dependency per month comes out to Rs. 12,721/- =( Rs. 16,962/- less Rs. 4,241/-).
40. The Hon'ble Apex Court of the land in the latest judgment which has arisen out of SLP (Civil) No. 25590 of 2014 titled as National Insurance Company Limited vs. Praney Sethi & ors decided on 31.10.2017 has held as under:-
"61. In view of the aforesaid analysis, we proceed to record our conclusions:-
(i) The two-Judge Bench in Santosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench. Digitally signed by RAKESH RAKESH KUMAR KUMAR Date:
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(ii) As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent.
(iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.
(iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.
(v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore.
(vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment.
(vii) The age of the deceased should be the basis for applying the multiplier.
(viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/-
respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years."
The Hon'ble High Court of Delhi in MAC Appeal No. 798/2011 titled as Bajaj Allianz General Insurance company Ltd. vs. Pooja & ors decided on 02.11.2017 has held that even in the cases Digitally signed by RAKESH RAKESH KUMAR Date:
KUMAR 2022.12.24 15:55:23 MACT Case No. 126/2019 +0530 Priyanka & Ors. Vs. Tufani Yadav & Ors. Page No. 18/32 where the income of the deceased is calculated on the basis of the minimum wages, the benefit of future prospects is to be given in accordance with the abovesaid guidelines issued by the Hon'ble Supreme Court of India in the abovestated authority as per the rule applicable to self employed or privately employed persons.
41. Going by the ratio of the abovestated two authorities, the multiplier has to be selected as per the age of the deceased which is 34 years in the case in hand, accordingly, the multiplier of 16 as per Sarla Verma vs. DTC 2009 ACJ 1298 SC shall be applicable.
42. An addition of 40% on account of the future prospects has to be given as the age of the deceased was 34 years. Accordingly, the monthly income of the deceased has to be calculated as Rs. 17,809/-(Rs. 12,721/- + Rs. 5,088/- which is 40% of Rs. 12,721/-).
43. The appropriate multiplier applicable is '16' (for the age group of 31 years to 35 years) as mentioned in Sarla Verma's judgment (Supra). Hence, the total loss of dependency comes out to Rs. 34,19,328/- (Rs. 17,809/- x 12 x 16).
44. The Hon'ble Supreme Court of India in, "National Insurance Company Ltd. vs. Pranay Sethi & Ors. in Special Leave Petition (Civil) No.25590 of 2014 has granted a sum of Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- on account of loss of estate, loss of consortium and funeral expenses respectively. The aforesaid amounts are to be enhanced at the rate of 10% in every three years.
45. In view of the abovesaid judgment, I hereby award Digitally signed RAKESH by RAKESH KUMAR KUMAR Date: 2022.12.24 15:55:33 +0530 MACT Case No. 126/2019 Priyanka & Ors. Vs. Tufani Yadav & Ors. Page No. 19/32 Rs. 15,000/- towards loss of estate; Rs.40,000/- towards loss of consortium and Rs.15,000/- towards funeral charges.
46. In view of the abovesaid judgment, I hereby award Rs. 16,500/- towards loss of estate; Rs. 1,32,000/- towards loss of consortium (Rs.44,000/- x 3) and Rs.16,500/- towards funeral charges.
47. Therefore, in total, I hereby award a sum of Rs. 35,84,328/- (Rupees Thirty Five Lacs Eighty Four Thousand Three Hundred and Twenty Eighty Only) = (Rs. 34,19,328/- + Rs. 1,65,000/-) in favour of the petitioners and against the respondents.
R E L I EF / ISSUE NO.3
48. I award Rs. 35,84,328/- (Rupees Thirty Five Lacs Eighty Four Thousand Three Hundred and Twenty Eighty Only) as compensation with interest at the rate of 6% per annum including interim award, if any from the date of filing the DAR/claim petition i.e. 22.02.2019 till the date of the payment of the award amount, in favour of the petitioners and against the respondents on account of their liability being joint and several.
MODE OF DISBURSEMENT OF THE AWARD AMOUNT TO THE CLAIMANTS AS PER THE PROVISIONS OF THE 'MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE' (MCTAP).
Digitally signed49. This court is in receipt of the orders by RAKESH dated RAKESH KUMAR KUMAR Date:
2022.12.24 15:55:43 +0530 MACT Case No. 126/2019 Priyanka & Ors. Vs. Tufani Yadav & Ors. Page No. 20/32 07.12.2018 passed by the Hon'ble High Court of Delhi in FAO no. 842/2003 titled as Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors whereby the Hon'ble High Court of Delhi has formulated MACAD(Motor Accident Claims Annunity Deposit Scheme) which has been made effective from 01.01.2019. The said orders dated 07.12.2018 also mentions that 21 banks including State Bank of India is one of such banks which are to adhere to MACAD. The State Bank of India, Tis Hazari Courts, Delhi is directed to disburse the amount in accordance with MACAD formulated by the Hon'ble High Court of Delhi.
50. Keeping in view the entirety of the facts and circumstances involved in the present case and the abovesaid guidelines laid down by the Hon'ble High Court of Delhi, the respondent No.3/insurance company is directed to deposit the award amount of Rs. 35,84,328/- (Rupees Thirty Five Lacs Eighty Four Thousand Three Hundred and Twenty Eighty Only) as stated herein above with SBI,Tis Hazari Court, Delhi in the MACT Account of this Tribunal having Account no. 40714429271, IFSC Code. SBIN0000726 Tis Hazari Courts, Delhi in favour the petitioners as stated herein above.
51. The compensation to the petitioners be distributed as follows:-
Sl Name of Age Relati Amount Amount Amount Period of . the on Award of award kept in FDRs N petitioner with to be FDRs cumulative o. s/claiman injured released interest t /decea sed
1. Priynaka 05.03. Wife Rs. Rs. Rs. Rs.Digitally signed by RAKESH
RAKESH KUMAR KUMAR Date:
2022.12.24 15:56:00 +0530 MACT Case No. 126/2019 Priyanka & Ors. Vs. Tufani Yadav & Ors. Page No. 21/32 1993 21,50,597 2,50,597 19,00,0 19,00,000/-
/- /- 00/- shall be kept
in the form of
monthly
FDRs of Rs.
10,000/- each
for 190
months.
2. Ishit 20.10. Son Rs. NIL Rs. The entire
Bhardaw 2016 10,75,298 10,75,2 amount of Rs.
aj /- 98/- 10,75,298/-
shall be kept
in FDRs until
he attains the
age of
majority.
3. Raj 24.07. Father Rs. Rs. Rs. Rs. 3,00,000/-
Kishan 1956 3,58,433/- 58,433/- 3,00,00 shall be kept
0/- in the form of
FDRs of Rs.
10,000/- for
30 months.
TOTAL Rs. 35,84,328/- (Rupees Thirty Five Lacs Eighty
Four Thousand Three Hundred and Twenty Eighty Only)
52. The following conditions are to be adhered to by SBI, Tis Hazari Courts, Delhi with respect to the fixed deposits:-
(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). Digitally
(b) The original fixed deposit shall be RAKESH RAKESH signed by KUMAR retained by the bank in safe custody. However, KUMAR Date:
2022.12.24 15:56:23 +0530 MACT Case No. 126/2019 Priyanka & Ors. Vs. Tufani Yadav & Ors. Page No. 22/32 the statement containing FDR number, FDR amount, date of maturity and maturity amount shall be furnished by bank to the claimant(s).
(c) The monthly interest be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant(s) near the place of their residence.
(d) The maturity amounts of the FDR(s) be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant (s) near the place of their residence.
(e) No loan, advance, withdrawal or pre-
mature discharge be allowed on the fixed deposits without permission of the Court.
(f) The concerned bank shall not be 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 along with the duly signed and stamped by the bank official on the passbook(s) of the claimant(s) is sufficient compliance of clause (g) above.
53. In accordance with the orders dated 08.02.2019 passed by the Hon'ble High Court of Delhi in FAO no. 842/2003 in Rajesh Tyagi and others Vs. Jaibir Singh and others, Mr. Rajan Singh, Assistant General Manager has been appointed as Nodal Officer of SBI having Phone no. 022- 22741336/9414048606 and e mail ID [email protected]. In case of any assistance or non compliance, the aforesaid Nodal Digitally signed by RAKESH RAKESH KUMAR MACT Case No. 126/2019 KUMAR Date:
2022.12.24 15:56:39 +0530 Priyanka & Ors. Vs. Tufani Yadav & Ors. Page No. 23/32 Officer may be contacted to. A copy of this order be sent by e- mail to the aforesaid Nodal Officer of the aforesaid bank by the Ahlmad of the Court immediately in accordance with the directions of the Hon'ble High Court as contained in the orders dated 07.12.2018. The Nodal Officer of the bank shall ensure the disbursement of the award amount within three weeks of the receipt of the e-mail as mentioned in the orders dated 07.12.2018 passed by the Hon'ble High Court of Delhi. APPORTIONMENT OF LIABILITY
54. It has been alleged that the respondent No.1 was not holding any valid and effective driving license at the time of the accident. The insurance company has examined the Clerk Sh. Pramindra Singh, RTO, Janak Puri, New Delhi in the present matter and this witness has proved that the respondent no.1 was holding a D/L for the period from 27.05.2019 to 26.05.2024 for LMV vehicles and for HMV vehicles for the period from 27.05.2019 to 26.05.2022. R3W1 in his evidence has stated that the respondent no.1 was driving the Truck which was Oil Tanker at the time of the accident without having any endorsement on his DL authorizing him to drive a vehicle carrying hazardous or dangerous goods.
55. R3W1 has been cross examined by the Ld. Counsel for the respondent no.1 and 2 but not even a single suggestion has been given to the effect that the truck was not an Oil Tanker at the time of the accident. R3W1 has not been cross examined at all by the petitioners.
56. The insurance company has also examined R3W1 Digitally signed Ms. Nikhita Bhownik and this witness has proved thebyinsurance RAKESH KUMAR RAKESH Date:
KUMAR 2022.12.24 15:56:53 +0530 MACT Case No. 126/2019 Priyanka & Ors. Vs. Tufani Yadav & Ors. Page No. 24/32 policy as Ex.R3W1/A. The witness further deposed that the notice U/o 12 Rule 8 CPC was sent to the driver and owner of the vehicles. In the cross-examination, R3W1 has denied that there was no breach of policy. By way of volunteer, the witness deposed that where there was no endorsement for driving the vehicle carrying hazardous goods at the time of accident, there was breach of policy.
57. It has been held in the authority titled as Nagamani & Anr. vs. Singaravelu & Anr. cited as 2010 ACJ 1912 decided on 11.06.2009 wherein, in para no. 16 thereof, the Hon'ble High Court of Madras has held as under:-
"16...Suffice it to point out for this court that the offending lorry driver Elayasamy was not in possession of a licence/endorsement to drive the hazardous goods vehicle and that he was only possessed of a licence to drive heavy goods vehicle w.e.f. 30.10.1991 and, therefore, there was a violation of policy condition and as such, the Tribunal was quite correct in exonerating the insurance company, respondent No.2 from its liability to pay and moreover, the appellants/petitioners have not proved that the driver Elayasamy had the valid licence in regard to the type of vehicle viz., hazardous goods vehicle involved in the accident and consequently, the appeal fails and the same is hereby dismissed".
58. It has to be further seen in the authority cited as 2016 ACJ 2678 titled as New India Assurance Co. Ltd. vs. Ashpal Singh & Ors. Wherein in para no. 5, 9 & Digitally 11, by the RAKESH signed RAKESH KUMAR KUMAR Date:
2022.12.24 MACT Case No. 126/2019 15:57:05 +0530 Priyanka & Ors. Vs. Tufani Yadav & Ors. Page No. 25/32 Hon'ble High Court of Delhi has held as under: -
"5. It is clear from bare reading of the proviso under section 14 (2) (a) that in the case of transport vehicles carrying goods which are dangerous or hazardous in nature, the driving licence ordinarily issued is not sufficient in that, such driving licence requires a further endorsement as to the compliance by the driver with the requirements of the other conditions, such licences being effective only for a period of one year and subject to renewal for similar period from time to time thereafter.
9. It appears Claims Tribunal has fallen into error by calling for negative evidence. The insurance company had pleaded that it was not liable because the driver did not have a valid endorsement in terms of the requirements of section 14 of MV Act read with rules 9 and 132 of Central Motor Vehicles Rules, 1989. It was the burden of the owner and driver respectively of the offending vehicle, in the facts and circumstances of the case, to prove by positive evidence that the driving licence of the respondent No.2 was one carrying the necessary authorisation.
11. In these circumstances, the driving licence on which the said party respondents have been relying cannot be accepted as a valid licence for purpose of the offending vehicle. Thus, there has been breach of provisions of insurance policy. The insurance company (the appellant) has already paid the amount to the claimant in terms of impugned judgment- award. It is entitled to recover it from the registered owner (the respondent No.1) of the offending vehicle.
59. It has to be further seen in the authority cited as 2010 ACJ 2243 titled as Shambhu Dayal vs. New India Assurance co. Ltd. & ors. wherein the Hon'ble High Court of Madhya Pradesh at Jabhalpur has held that the Digitally driversigned by RAKESH RAKESH KUMAR Date:
KUMAR 2022.12.24 MACT Case No. 126/2019 15:57:15 +0530 Priyanka & Ors. Vs. Tufani Yadav & Ors. Page No. 26/32 was not authorized to drive oil tanker as the driving licence of the driver was not having any additional endorsement to that effect and as such, the owner committed breach by handing over the oil tanker to the driver who was neither having a valid driving licence for heavy transport vehicle on the date of the accident nor was having a valid driving licence as per clause (a) of Section 14 (2) of the Motor Vehicles Act.
60. It has to be further seen in the authority cited as III (2012) Consumer Protection Judgments 492 (NC) titled as National Insurance Co. Ltd. vs. S. Amirtharaj wherein it has been held that the driving licence was not having any endorsement to driver hazardous vehicles and as such, there was a breach of the terms and conditions of the insurance policy.
61. It has to be further seen in the authority cited as II (1999) Consumer Protection Judgments 13(SC) titled as Oriental Insurance Company Ltd. vs. Sony Cheriyan wherein it was held that the permit granted to the respondent was only with respect to transportation of non hazardous articles. It was further held that the respondent was carrying Ether Solvent which is highly hazardous and flammable article. It was further held that the insurance policy covered only those goods which were permissible under the Motor Vehicles Act to be carried by the respondent. It was held that there was a violation of the terms and conditions of the insurance policy.Digitally signed by RAKESH
62. The DL which was being possessed by the RAKESH KUMAR KUMAR Date:
2022.12.24 15:57:26 +0530 MACT Case No. 126/2019 Priyanka & Ors. Vs. Tufani Yadav & Ors. Page No. 27/32 respondent No.1 was merely for LMV and HMV only. There is no endorsement on the DL of respondent No.1 to the effect that he was authorized to drive the vehicle carrying hazardous goods at the time of the accident. To my mind, the ratio of the abovestated authority is squarely applicable because there has been a breach of the terms and conditions of the insurance policy. Accordingly, to my mind, the insurance company is entitled for the recovery rights against the respondents No.1 & 2 but only after payment of the award amount to the petitioners.
63. Since the offending vehicle was admittedly insured with the respondent No.3/Insurance company, the respondent No.3 is hereby directed to deposit the award amount in favour of the petitioners in accordance with their shares with SBI, Tis Hazari Courts, Delhi within a period of 30 days from the date of passing of this award together with the interest as stated herein above under the intimation to this court and under intimation to the petitioners. In case of any delay, it shall be liable to pay interest at the rate of 9% per annum for the period of delay.
64. A separate file be prepared for compliance report by the Nazir and put up the same on 31.01.2023.
65. A copy of this award be given to the insurance company as well as to the petitioners free of cost.
66. A copy of this award be sent to the concerned Ld. Metropolitan Magistrate as well as DSLSA as per the provisions of the MODIFIED CLAIM Digitally signed by RAKESH RAKESH KUMAR KUMAR Date:
MACT Case No. 126/2019 2022.12.24 15:57:37 +0530 Priyanka & Ors. Vs. Tufani Yadav & Ors. Page No. 28/32 TRIBUNAL AGREED PROCEDURE (MCTAP).
67. File be consigned to Record Room.
Digitally signed by Announced in the open court (RAKESH KUMAR-IV) RAKESH On 24th of December, 2022 RAKESH KUMAR P.O. MACT (WEST-02) KUMAR Date:
THC/Delhi/24.12.2022 2022.12.24 15:57:44 +0530 MACT Case No. 126/2019 Priyanka & Ors. Vs. Tufani Yadav & Ors. Page No. 29/32 FORM -XV SUMMARY OF COMPUTATION OF AWARD AMOUNT IN DEATH CASES
1. Date of accident. : 12.11.2018
2. Name of the deceased : Neeraj Kumar
3. Age of the deceased : 34 years
4. Occupation of the deceased : Job
5. Income of the deceased : Rs. 16,962/-
6. Name, age and relationship of legal representative of deceased:-
S. Name Age Relation
No.
(i) Priyanka DOB: 05.03.1993 Wife
(ii) Ishit Bhardawaj DOB :20.10.2016 Son
(iii) Raj Kishan DOB: 24.07.1956 Father
Computation of Compensation
Sr. Heads Awarded by the Claim Tribunal
No.
7. Income of the deceased(A) Rs. 16,962/-
8. Add-Future Prospects (B) 40%
9. Less-Personal expenses of the 1/4th deduction has been done
deceased(C)
10. Monthly loss of Rs. 17,809/-
dependency[(A+B)-C=D]
11. Annual loss of dependency (Dx12) Rs. 2,13,708/-
(Rs. 17,809/- x 12)
12. Multiplier(E) 16
Digitally signed
by RAKESH
RAKESH KUMAR
Date:
KUMAR
MACT Case No. 126/2019 2022.12.24
15:57:59
+0530
Priyanka & Ors. Vs. Tufani Yadav & Ors. Page No. 30/32
13. Total loss of dependency (Dx12xE= Rs. 34,19,328/- (Rs.17,809/- x 12 F) x 16)
14. Medical Expenses(G) NIL
15. Compensation for loss of Rs.1,32,000/- (Rs.44,000/- x 3) consortium(H)
16. Compensation for loss of love and NIL affection(I)
17. Compensation for loss of estate(J) Rs.16,500/-
18. Compensation towards funeral Rs.16,500/-
expenses(K)
19. TOTAL COMPENSATION Rs. 35,84,328/- (Rupees Thirty (F+G+H+I+J+K=L) Five Lacs Eighty Four Lacs Three Hundred and Twenty Eighty Only)
20. RATE OF INTEREST 6% per annum AWARDED
21. Interest amount up to the date of Rs.8,26,065/-
award (M)
22. Total amount including interest Rs. 44,10,393/-
(L + M) (Rs. 35,84,328/- + Rs.8,26,065/-)
23. Award amount released Rs. 3,09,030/- alongwith interest
24. Award amount kept in FDRs Rs. 33,75,298/-
25. Mode of disbursement of the Mentioned in the award award amount to the claimant (s).
26. Next date for compliance of the 31.01.2023 award.
Digitally signed by RAKESHRAKESH KUMAR Date: KUMAR 2022.12.24 15:58:10 +0530 (RAKESH KUMAR-IV) P.O.MACT (WEST-02) Delhi /24.12.2022 MACT Case No. 126/2019 Priyanka & Ors. Vs. Tufani Yadav & Ors. Page No. 31/32 MACT no. 126/2019 Priyanka & Ors. Vs. Tufani Yadav & Ors.
24.12.2022.
Present: None.
Award has also been passed separately. File be consigned to Record Room.
A separate file be prepared for compliance report by the Nazir and put up the same on 31.01.2023.
A copy of this award be sent to the concerned Ld. Metropolitan Magistrate as well as DSLSA as per the provisions of the MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE(MCTAP). A copy of this award be sent by the Ahlmad on the e-mail address of Nodal Officer of the bank immediately as mentioned in the award. Digitally signed by RAKESH RAKESH KUMAR KUMAR Date:
2022.12.24 15:58:18 +0530 (RAKESH KUMAR-IV) P.O. MACT (WEST-02) Delhi/24.12.2022 MACT Case No. 126/2019 Priyanka & Ors. Vs. Tufani Yadav & Ors. Page No. 32/32