Delhi District Court
Ramesh Budhwar vs . Dilip Poddar on 25 February, 2012
Ramesh Budhwar Vs. Dilip Poddar
1
IN THE COURT OF SHRI SANJIV JAIN : PRESIDING OFFICER : MACT02
SOUTH DISTT. : SAKET COURTS : NEW DELHI
In Suit No. 748/10
1. Sh. Ramesh Budhwar
S/o Sh. Chander Bhan
2. Romit
S/o Sh. Ramesh Budhwar
3. Ridhima
D/o Ramesh Budhwar
All Residents of
C7, Police Colony,
Sector12, R K Puram,
New Delhi - 110 022
(Petitioner no. 3 is minor and represented by
Petitioner no. 1 being her father)
...... Petitioners
Versus
1. Dilip Poddar
S/o Sh. Uttam Poddar
R/o RZ239, Dwarka Puri,
New Delhi
2. M/s Airport Services (I) Pvt. Ltd.
49, DDA Auto Complex, Zamrudpur,
GKI, New Delhi through its Chairman
Sh. Dilmeet Singh
Suit No. : 748/10 1/35
Ramesh Budhwar Vs. Dilip Poddar
2
3. Satinder Singh (Director)
M/s Airport Services (I) Pvt. Ltd.
49, DDA Auto Complex, Zamrdupur,
Greater KailashI, New Delhi
4. The Oriental Insurance Company
K37, Cannaught Circus, New Delhi 1
Regd. Office at A25/27,
Asaf Ali Road, New Delhi - 2
.......Respondents
Date of Institution : 25.07.2006
Date of reserving of judgment/order : 22.02.2012
Date of pronouncement : 25.02.2012
J U D G M E N T :
1. Smt. Kusum Lata unaware of the fact that a calamity in the form of her 'untimely death' was standing at threshold of her destiny, was walking on the service road of Shanti Path. This walk proved unaffordable to her as she lost her life in the same, leaving behind her husband, son and daughter.
2. It was alleged that Kusum Lata sustained fatal injuries in an accident which took place with an Ambassador car (Taxi) bearing number DL 1Y A 2843 being driven in a rash and negligent manner by respondent no.1, owned by Suit No. : 748/10 2/35 Ramesh Budhwar Vs. Dilip Poddar 3 respondent no. 2 and insured with respondent no.4.
3. Subsequent thereto, husband and the children of the deceased, being her legal heirs, invoked the jurisdiction of this Tribunal by filing the present petition under Section 166 read with Section 140 of Motor Vehicles Act seeking compensation against the above respondents.
4. Relevant facts necessary for adjudication and disposal of the present petition as emanating from the same, apart from those stated herein above are as under :
(a) On 26.04.06 at about 5.45 AM, Smt. Kusum Lata was on a morning walk with her husband. She was on the service road of Shanti Path. Near CII/59, Moti Bagh, respondent no.1 driving his Ambassador car bearing no. DL 1Y A 2843 at a high speed and in a rash and negligent manner came from the slope of railway flyover and hit her after climbing over the pavement / footpath. The speed of the car was so high that it did not stop even after hitting. It jumped over the drain, broke the fence behind quarter no. CII/59 and stopped in the lawn. She fell down on the road and sustained multiple injuries. She Suit No. : 748/10 3/35 Ramesh Budhwar Vs. Dilip Poddar 4 was taken to Safdarjung hospital where she was declared brought dead. Her postmortem was conducted. A case was registered vide FIR 267/06 at the police station R K Puram against the respondent no.1. The deceased was a Senior Telephone Supervisor with MTNL, Delhi and drawing a salary of Rs. 21050/ p.m. She would have continued in service upto 31.10.2020. She was also entitled for children education allowance, LTC in cash, medical reimbursement per year, CPF and EPF. It was stated that there is history of longevity in the family of the deceased. Her father is aged about 74 years and hale and hearty. It was stated that the respondent no.2 was the registered owner of the offending vehicle and it was insured with respondent no.4.
(b) It was stated that due to untimely death of Kusum Lata, her husband and children have been under pain and agony, since lost the affectionate company of the deceased.
(c) It is stated that petitioners may be adequately compensated.
5. Notice of the petition was given to the respondents. Pursuant to the same, Suit No. : 748/10 4/35 Ramesh Budhwar Vs. Dilip Poddar 5 respondents appeared and filed their written statements.
6. Respondent no.1 denied the averments made in the petition, however, stated that the vehicle was insured with respondent no.4 vide policy no. 272300/31/POL/2005/MIG/18903 which was extended vide endorsement no. 272300/31/POL/2005/MIG/18903/2 dated 01.05.06 and after endorsement its period of validity was from 14.06.05 to 13.06.06. He stated that he was driving the car at a normal speed. All of a sudden, a stray cow came in front of his car and in order to save the collision, he turned the car. Respondent no.2 and 3 stated that the offending vehicle was insured with respondent no. 4 and at the time of accident, respondent no.1 was driving the vehicle. The respondent no.4 alleged that since the period of insurance of the vehicle was got changed fraudulently without disclosing the material facts of the accident, the company cancelled the policy and thus is not liable to pay any claim as the policy had already expired on 11.03.06 i.e. 45 days prior to the date of accident. It was stated that the policy was taken by respondent no.2 for a new vehicle without engine, chasis and registration number with an understanding that the respondent no.2 on taking the delivery would intimate the above numbers immediately to the insurer, however, it never intimated the same to it till 01.05.06 when the endorsement was obtained from it Suit No. : 748/10 5/35 Ramesh Budhwar Vs. Dilip Poddar 6 fraudulently. Respondent no.4 also raised doubt as to the delivery and stated that the delivery was alleged to have been taken from the dealer M/s Triumph Motors, Noida on 25.07.05 as per the invoice no. TM 0050 issued by the dealer, however, the said car was got registered with the RTO on 11.06.05.
7. On the pleadings of the parties, following issues were framed vide order dated 16.04.07 :
i) Whether deceased Smt. Kusum Lata had died in motor vehicle accident due to rash and negligent driving of vehicle no. DL 1Y A 2843 driven by R1, owned by respondent no.
2 and 3 on 26.04.06, insured with R4 as claimed in the petition? ...... OPP.
ii) If issue no.1 is proved in affirmative whether petitioners are entitled for any compensation if yes from whom and to what amount? ..... OPP
iii) Relief.
8. Parties to the present petition were thereafter called upon to substantiate their case by leading evidence.
Suit No. : 748/10 6/35
Ramesh Budhwar Vs. Dilip Poddar 7
9. Petitioners examined Sh. Ramesh Budhwar as PW1, Sh. Sita Ram Arora as PW2 and Sh. Chaman Lal as PW3. The respondent no.3 examined Sh. Satender Singh as R3W1. Respondent no.4 examined Sh. M Johnson as R4W1, Sh. Chotu Ram as R4W2, Sh. G B Mathur as R4W3 and Sh. Rajan Mehra as R4W5.
10. I have heard the arguments advanced by Ld. Counsel Sh. Sanjay Khatana for the petitioners, Sh. I S Kapoor for respondent no.2 and 3 and Sh. R N Sharma for respondent no.4 and perused the record.
11. It is contended on behalf of the petitioners that due to involvement of the vehicle driven by respondent no.1, not only deceased Smt. Kusum Lata lost her life but the life of the petitioners have also been ruined, as she was not only the supporting earning member of the family but also serving all financial and sentimental needs of her family. It is submitted that the car was being driven at a fast speed as it after hitting the deceased, jumped over a drain and broke the fence. Ld. counsel stated that the deceased was 45 years of age. She was hale and hearty. There is longevity of life in the family of deceased. She had been working as Senior Telephone Supervisor with MTNL, Delhi.
Suit No. : 748/10 7/35
Ramesh Budhwar Vs. Dilip Poddar 8
12. Ld. counsel Sh. R N Sharma contended that the insurance policy had expired much prior to the accident as such respondent no.4 is not liable to compensate the petitioners. The policy was in respect of a new vehicle without engine and chasis number and was valid from 12.03.05 to 11.03.06. The accident took place in April, 2006. The respondent no.3 got the insurance policy fraudulently extended though the policy cannot be extended and it can be renewed only. When this fact came to the knowledge of the company, it cancelled the policy. Ld. counsel further stated that the accident took place on 26.04.06 and the pay commission report became effective from 01.01.07, therefore, loss of dependency is to be calculated as per existing salary structure.
13. Ld. counsel Sh. I S Kapoor contended that the cover note was issued much prior to the delivery of the vehicle as there was requirement of the finance company. The premium was paid for 35 new vehicles for which the cover notes were issued by the company assuring that the policy would be valid from the date, the vehicle would come into existence on the road. Ld. counsel stated that the aforesaid vehicle was delivered on 14.06.05 so the insurance period would be reckoned from 14.06.05 to 13.06.06. Ld. counsel stated that the company rightly extended the period of the policy. Ld. Suit No. : 748/10 8/35 Ramesh Budhwar Vs. Dilip Poddar 9 counsel stated that the policy was cancelled malafidely without any basis by respondent no.4 after coming to know that the vehicle was involved in the accident on 25.04.06. Ld. counsel stated that policy was also issued in respect of other vehicle bearing no. 2846. It was extended and never cancelled. Ld. counsel stated that no report was lodged against respondent no.2 as to getting the policy extended fraudulently as alleged. The report of the investigators are also at variance. From the testimony of R4W1, it is clear that the delivery of offending vehicle was given on 14.06.05. How can there be an insurance of a vehicle which was not in existence. The premium was for 12 months and it was to be charged from the date the vehicle came into existence.
14. I have considered the rival contentions and perused the record.
15. My findings on the issues are as under : I S S U E N o. 1
16. Standard of proof of negligence required in order to dispose off the claim stands on a much lesser footing than what is required in a criminal case or in a civil case. It was held in "Ranu Bala Paul and Ors. V/s Bani Suit No. : 748/10 9/35 Ramesh Budhwar Vs. Dilip Poddar 10 Chakraborty and Ors.", 1999 ACJ 634 by Hon'ble Guwahati High Court :
"In deciding a matter Tribunal should bear in mind the caution struck by the Apex Court that a claim before the Motor Accidents Claims Tribunal is neither a criminal case nor a civil case. In a criminal case in order to have conviction, the matter is to be proved beyond reasonable doubt and in a civil case the matter is to be decided on the basis of preponderance of evidence, but in a claim before the Motor Accidents Claims Tribunal, the standard proof is much below than what is required in a criminal case as well as in a civil case. No doubt before the Tribunal, there must be some material on the basis of which the Tribunal can arrive or decide things necessary to be decided for awarding compensation. But the Tribunal is not expected to take or to adopt the nicety of a civil or of a criminal case. After all, it is a summary inquiry and this is a legislation for the welfare of the society."
17. In the backdrop of above case law, the evidence of the petitioner is required to be considered.
18. PW1 is the husband of the deceased. He tendered his affidavit in evidence Suit No. : 748/10 10/35 Ramesh Budhwar Vs. Dilip Poddar 11 Ex.PW1/1 and stated that on 26.04.06 at about 5.45 AM he alongwith his wife was on a morning walk on the service road of Shanti Path. When they reached CII/59, respondent no.1 came driving an Ambassador Taxi DL 1Y A 2843 from the slope of the railway flyover at a high speed and in a rash and negligent manner and hit his wife. He stated that the car was being driven at such a speed that it did not stop even after hitting his wife, it jumped over a drain and broke the fence of the quarter. He took his wife to Safdarjung hospital where doctor declared her brought dead vide MLC no. C809. He stated that the postmortem of the deceased was got conducted. The doctor opined the cause of death as multiple organ and limb damage which could be possible in road traffic accident. He stated that on his statement, the case was registered vide FIR 267/06 at the police station R K Puram against the respondent no.1. PW1 has also filed the certified copy of the charge sheet U/s 173 Cr.P.C. Perusal of it reveals that the case was registered on the statement of PW1. The site plan placed with the charge sheet also corroborates his testimony. Nothing material came in his crossexamination to draw an inference that the accident/death did not result due to rash and negligent driving of offending vehicle by respondent no1. Hon'ble High Court of Delhi in case titled ''National Insurance Company Limited V/s Pushpa Rana'' reported as 2009 ACJ 287 has held that whenever criminal Suit No. : 748/10 11/35 Ramesh Budhwar Vs. Dilip Poddar 12 proceedings are placed on record on completion of investigation by the police, then that in itself is sufficient proof of the negligent driving of driver of the offending vehicle involved in the accident.
19. It is therefore, established that the accident took place due to rash negligent driving of Ambassador Taxi no. DL 1Y A 2843 by respondent no. 1 which resulted in the death of deceased Smt. Kusum Lata. It is also an admitted position on record that the offending vehicle was owned by respondent no.2 and it was insured with respondent no. 4.
20. Issue No. 1 is accordingly decided in favour of the petitioners and against the respondents.
I S S U E N o . 2
21. The petitioners have claimed Rs. 95,00,000/ as compensation. In a road accident a person is entitled to compensation for the pecuniary and non pecuniary damages. Let me assess the compensation which the petitioners are entitled for under different heads.
22. It has been held in a catena of judgments that emphasis in cases of personal injury and fatal accident should be on awarding substantial, just and fair Suit No. : 748/10 12/35 Ramesh Budhwar Vs. Dilip Poddar 13 compensation and not a token amount. General principle in calculating such sum of compensation, should be so as to put the injured or legal heirs of a deceased in case of fatal accident, in the same position as he would have been, if accident had not taken place. The amount of compensation no doubt cannot bring back the dead but it certainly helps the LR's and dependents to live life with dignity and comfort as they were living during the lifetime of the deceased. The amount of compensation is awarded on the basis of age, the earning capacity and other liabilities of the deceased. The appropriate method of calculating compensation in fatal cases is multiplier method. The Hon'ble Supreme Court in plethora of judgments has laid down that in India, the multiplier method is proper for calculation of compensation.
23. In order to calculate the amount of compensation, the sum is required to be considered under the various heads :
(a) LOSS OF DEPENDENCY :
24. Petitioner No. 1 Sh. Ramesh Budhwar during the course of his deposition as PW1 has stated that he being husband and the other petitioners being son and daughter are the only legal heirs of the deceased Smt. Kusm Lata. He stated that the deceased was 45 years of age. She had been working as Suit No. : 748/10 13/35 Ramesh Budhwar Vs. Dilip Poddar 14 Senior Telephone Supervisor in MTNL and getting a salary of Rs. 21050/ p.m. She would have continued in service upto 31.10.2020. She had also been getting Rs. 25772/ p.a. CPF, Rs. 16424/ as EPF and other allowances like LTC, bonus etc. PW2 was Senior Supervisor, MTNL. He brought the salary record of the deceased for the period from March, 2005 to April, 2006. He stated that gross income of the deceased for that period was Rs. 309785/. She was paid bonus of Rs. 8500/. Her gross monthly salary was Rs. 21961/ and her last drawn salary for the month of March, 2006 was Rs. 23236/. She was getting prorata pension of Rs. 1275/ p.m. He proved the salary record Ex.PW2/A and Ex.PW2/B. PW3 is Chief Section Supervisor, MTNL. He brought the salary details of the deceased. He stated that as per office order dated 14.05.10, Pay Commission became effective from 01.01.07.
25. From the testimony of PW2, I find that the gross salary of the deceased was Rs. 23,236/. It included Rs. 100/ as washing allowance and Rs. 750/ as transport allowance which amount is to deducted for calculating the loss of dependency. Thus, the net salary of the deceased comes to Rs. 22,386/. She was paid bonus of Rs. 8,500/ for the year 20052006 which amount is to be added. It is also to be noted that on this income, the deceased had paid income tax. So, a margin of income tax is also taken while calculating Suit No. : 748/10 14/35 Ramesh Budhwar Vs. Dilip Poddar 15 the income for the purpose of loss of dependency. As per the pay slip Rs. 968/ p.m. was being deducted as TDS. Thus, the deduction on account of income tax would come to 12 x 968 = Rs. 11,616/. The annual income after deduction comes to (12 x 22,386) + Rs. 8,500 11,616 = Rs. 2,65,516/. The deceased was 45 ½ years of age. She had to retire on 31.10.2020. She was a permanent employee of MTNL as she has been working as Senior Telephone Supervisor. PW3 has stated that her salary in the year 2011 would have been Rs. 48163/. It has also come in evidence that the pay commission became effective from 01.01.07. Sh. Kusum Lata died on 26.04.06. Thus, the loss of dependency would be calculated on the salary she had been drawing at the time of accident and not as per sixth pay commission.
26. It has also been held in catena of Judgments that future prospects of advancement of life and career should also be sounded in terms of money to augment the multiplicand (annual contribution to the dependent) and the Court can take note of the prospects of the future and it will be unreasonable to estimate the loss of dependency on the actual income of the deceased at the time of the death. Thus, future prospects are also to be taken in the present case while calculating the dependency, which as per the Sarla Suit No. : 748/10 15/35 Ramesh Budhwar Vs. Dilip Poddar 16 Verma Vs. DTC 2009 (6) scale 129 is taken as 30% of the basic income as the deceased was 45 ½ years of age at the time of accident. Adding the future prospects, the gross yearly income of the deceased comes to Rs. 2,65,516 + 30% of 2,65,615 = Rs. 3,45,171/.
27. The deceased was married and survived by her husband and two children.
Out of the gross income and considering that husband and children are the legal heirs of deceased, she by no stretch of imagination could have spent more than onethird of her earning on herself. In view thereof, annual loss of dependency of the petitioners would come to Rs. 3,45,171 [1/3rd of 3,45,171] = Rs. 2,30,114/.
28. It was held in the case of Sarla Verma (supra) that while calculating the dependency, the multiplier is to be applied with reference to the age of the deceased. In the present case the age of the deceased was above 45 ½ years. Hence, a multiplier of '13' is taken for calculating the loss of dependency. Using the multiplier of '13', the total loss of dependency comes to Rs. 29,91,482/ (13 x 2,30,114) which is rounded off as Rs. 29,91,500/. Suit No. : 748/10 16/35
Ramesh Budhwar Vs. Dilip Poddar 17
29. I therefore, award a sum of Rs. 29,91,500/ to the petitioners towards "Loss of Dependency".
(b) LOSS OF LOVE AND AFFECTION :
30. Petitioners no.1 at this stage of his life has lost his wife on whom he was financially and emotionally dependent. The love and care which the children could have got from their mother cannot be measured in terms of money.
31. In view thereof, I award a sum of Rs. 25,000/ to the petitioners towards "Loss of Love and Affection".
(c) FUNERAL EXPENSES :
32. I award a sum of Rs. 10,000/ to the petitioners on account of "Funeral Expenses".
(d) LOSS OF ESTATE :
33. I award a sum of Rs. 10,000/ to the petitioners on account of "Loss to Estate".
(e) LOSS OF CONSORTIUM :
34.I award a sum of Rs. 10,000/ to the petitioner no.1 on account of "Loss of Consortium".
Suit No. : 748/10 17/35
Ramesh Budhwar Vs. Dilip Poddar 18 : L I AB I L I T Y :
35. As the offending vehicle was being driven by respondent no. 1 therefore primary liability to compensate the petitioners is that of respondent no. 1. As the offending vehicle was owned by respondent no. 2 therefore, it becomes vicariously liable to compensate the petitioners. It is an admitted position on record that the offending vehicle was insured with respondent no.4, therefore, respondent no.4 becomes contractually liable to compensate the petitioners for the above mentioned amount to the extent of liability of the insured.
36. Ld. Counsel for respondent no.4, however, in his quest to have the insurance company exonerated of its contractual obligation contended that the respondent no. 2 got the insurance policy extended fraudulently which was cancelled. It was not in existence on the day of accident. In support of his contention he referred the testimony of R4W1 to R4W5. Ld. counsel submitted that the policy had expired much prior to the accident. It was in respect of a new vehicle without engine and chasis number and was valid from 12.03.05 to 11.03.06. The accident took place in April, 2006. Ld. counsel stated that the policy cannot be extended but it can be renewed only.
Suit No. : 748/10 18/35
Ramesh Budhwar Vs. Dilip Poddar 19
37. Ld. counsel Sh. I S Kapoor in rebuttal argued that the cover note was issued much prior to the delivery of the vehicle. The premium was paid in respect of 35 new vehicles for which the cover notes were issued by the company on the assurance that the policy would be valid from the date the vehicle would come into existence on the road. Ld. counsel stated that the aforesaid vehicle was delivered on 14.06.05 so, the insurance period would be reckoned from 14.06.05 to 13.06.06. Ld. counsel stated that the company rightly extended the period of the policy. Ld. counsel stated that the policy was cancelled by respondent no.4 malafidely without any basis after coming to know that the vehicle was involved in the accident on 25.04.06.
38. I have considered the submissions and perused the record.
39. R4W1 who was Motor Vehicle Inspector RTO, Burari has stated that as per the invoice no. TN 032186005 Ex.R4W1/A issued by Triumph Motors, the vehicle no. DL 1Y A 2843, bearing engine no. 3ELCE0833005 and chasis no. ACE888458 was sold to Airport Services (I) Pvt. Ltd., respondent no.2 herein. In their record, it was registered on 14.06.05. It was hypothecated with Bank of Punjab. He brought the copy of the insurer cover bearing no. 126580 Ex.R4W1/B issued by respondent no.4 for the period from 12.03.05 Suit No. : 748/10 19/35 Ramesh Budhwar Vs. Dilip Poddar 20 to 11.03.06 and the Form no. 20 Ex.R4W1/C which respondent no.2 had submitted in the office. He stated that when the vehicle is registered, it is required to be produced in the office for obtaining impression of chasis no. on the application for registration. In the present case, the vehicle was produced in the office on 14.06.05. He stated that the invoice and the sale letter issued by Triumph Motors bears the date of 01.06.05.
40. R4W2 was the Divisional Manager of respondent no.4. He stated that respondent no.2 had taken insurance cover of 35 brand new cars which it was intending to purchase from Triumph Motors, Noida in batches. The company issued first batch of cover notes having S. No. 126501 to 126515 Ex.R4W2/1 to 15 for a period of one year w.e.f. 22.02.05 to 21.02.06 with an understanding that the respondent no.2 would intimate the engine no., chasis no. and registration no. allotted to the cars immediately. The company issued second batch of cover notes having S. No. 126581 to 126589 Ex.R4W2/16 to 24 for a period of one year w.e.f. 12.03.05 to 11.03.06 with the same understanding. He stated that the respondent no.2 failed to keep its promise of intimating the engine no., chasis no. and registration no. and its obligation to get the policies endorsed for the same. Hence, no vehicle was insured against the above cover notes issued on 22.02.05 and Suit No. : 748/10 20/35 Ramesh Budhwar Vs. Dilip Poddar 21 12.03.05 respectively. He stated that on expiry of these cover notes, the respondent no.2 failed to renew the policies which resulted in the termination of policies on its own after the expiry of validity i.e. 21.02.06 and 11.03.06. He stated that respondent no.2 fraudulently managed to get the endorsement on 01.05.06 bearing no. 18903/2 and 18903/3 from respondent no.4 for incorporation of registration no. and correction of policy period (12.03.05 to 11.03.06) as (14.06.05 to 13.06.06) whereas the said vehicle had already met with an accident on 26.04.06 and the policy issued by the respondent no.4 had already expired on 11.03.06. He stated that when this fact came to the notice of respondent no.4, it cancelled the endorsements vide letter Ex.R4W2/27 and 28. He placed on record the report of the Investigator Ex.R4W2/29 to 30 who had reported that the aforesaid vehicle was sold on 25.07.05, however, it was registered on 14.06.05 which is not possible as the registration cannot take place without the actual sale of vehicle. He stated that as per the invoice of Triumph Motors as verified from the Registering Authority, it had sold the vehicle on 01.06.05 vide Ex.R4W2/32. He stated that notice U/o 12 R 8 CPC was given to respondent no.2 and Triumph Motors and the company had also deputed another investigator Sh. Bhupender Shan who gave his report on 20.08.08 Ex.R4W2/38 (colly.) as per which the vehicle was delivered vide invoice no. Suit No. : 748/10 21/35
Ramesh Budhwar Vs. Dilip Poddar 22 05792 on 31.03.05 and insurance of the same was covered under cover note no. 126580 which was effective from 12.03.05 to 11.03.06. In his cross examination, he stated that the policy is issued only after taking the impression of Engine number and chasis number of the vehicle. However, so far as insurance policy pertaining to showroom vehicle, it is issued even before the engine number and chasis number are known to the company. He admitted that the policy was issued by the office for 12 months from the date of delivery of the said vehicle and that in para 7.2 of Annexure R4W2/29 it is mentioned that policy period is changed from 12.03.05/2006 to 14.05.06 in respect to vehicle no. DL 1Y A 2486 and it was changed on 01.05.06 because the vehicle in question had come into existence on road on 14.06.05. He stated that the policy was issued for lesser amount than that given in the invoice as the value of the vehicle was Rs. 3,87,222/ and the policy was for Rs. 3,68,600/. He admitted that the engine number shown in Ex.R3W1/33 does not tally with the engine number of the offending vehicle.
41. R4W3 Sh. G B Mathur was the Investigator. He tendered the documents Ex.R4W3/1A and 2 to 6 and stated that there was some discrepancy in the delivery of the car and its registration number. As per the investigation, the vehicle was produced before the Transport Authority on 14.06.06 and the Suit No. : 748/10 22/35 Ramesh Budhwar Vs. Dilip Poddar 23 insurer cover had the number 126580 covering the vehicle for the period from 12.03.05 to 11.03.06. He stated that the respondent no.2 got the endorsement on cover note no. 126589 for vehicle no. DL 1Y A 2843 whereas the cover note covering the aforesaid vehicle in the record of RTO bears the number 126580. He stated that the date of registration was 14.06.05 not 31.03.05 and he does not know who forged the date on his report Ex.R3W/2.
42. R4W5 was the Director of Triumph Motors. He stated that the dealership was surrendered in the year 2005. No two invoices can be issued in respect of one vehicle. He does not have any knowledge about the registration of vehicle on 14.06.05 or the policy of the vehicle. He stated that the documents bearing invoice no. TM 032 dated 01.06.05 and TM 00050 dated 25.07.05 bear the signature of Madan Pal, his employee. He stated that two different vehicles have different engine numbers and the engine number on invoice TM 032 is different from the invoice no. TM 00050. He stated that the period of insurance commences from the registration of the vehicle and the insurance in the present case will commence from 01.06.05, the date of invoice. Respondent no. 3 was the Director of Airport Services (I) Pvt. Ltd. He stated that the respondent no.2 intended to purchase 35 brand new cars Suit No. : 748/10 23/35 Ramesh Budhwar Vs. Dilip Poddar 24 from Triumph Motors. Advance in respect of all the 35 cars was paid to Triumph Motors but M/s Triumph showed its inability to deliver all the 35 cars on one day and suggested to take the delivery in batches on different dates. He stated that the insurance agent had visited his office with the reference of Triumph Motors and requested him to get 30 brand new cars insured from him assuring that the policy will be for one year commencing from the date of delivery irrespective of date of cover notes. He also made call to his senior officer who gave the same assurance. Believing on him, he got the cover notes issued in respect of 30 new cars. He took the loan from Bank of Punjab and handed over the cover notes to the bank directly as it was one of the condition to get the insurance cover notes before disbursing the loan amount. He stated that he was never told by the agent or his senior that he would have to intimate engine number, chasis number and registration number pertaining to all the cars to the insurance company. Infact, the agent was sent by Triumph Motors which had paid the Insurance premium of all the cars as it was the part of the package. He stated that the offending car was delivered on 14.06.05 and on the same day he got the fitness. He stated that the car met with the accident on 20.04.06. He went to the office of respondent no.4 and apprised them all the facts. He handed over the copy of registration certificate and the officer after scrutiny directed his Suit No. : 748/10 24/35 Ramesh Budhwar Vs. Dilip Poddar 25 subordinate to make the endorsement who in turn issued the printed computerised endorsement duly signed and stamped. As per the endorsement, the policy no. 272300/34POL/2005/MIG/18903 was extended and the effective date of the policy was 14.06.05 to 13.06.06. He stated that no invoice was prepared on 25.07.05. He denied that two invoices were got issued for this particular car.
43. Testimony of R4W2 shows that when the respondent no.4 issued the cover notes, M/s Triumph Motors had not given the delivery of the cars including the offending vehicle to respondent no.2. There is nothing on record to indicate that there was an understanding between the insurer and the owner / respondent no. 2 that after getting the cover note, it will intimate the respondent no. 4, the engine no., chasis no. and the registration no. allotted to the cars. R3W1 has stated that the agent had visited his office with the reference of Triumph Motors and assured that the insurance would be for one year commencing from the date of delivery irrespective of date on the cover notes. Since, he had taken the loan and it was a precondition, he after taking the cover notes handed over to the bank directly. He stated that the premium towards the insurance cover was paid by the Triumph Motors directly to the agent as it was part of the package.
Suit No. : 748/10 25/35
Ramesh Budhwar Vs. Dilip Poddar 26
44.In this case, the respondent no.4 did not produce the copy of the policy issued in lieu of the cover notes containing the engine no., chasis no. and the registration no. in respect of the offending vehicle. Nor any document was filed by respondent no.4 to show that it after issuing the cover notes had asked the respondent no.2 to provide the above details. R4W2 on the one hand has stated that no vehicle was insured against the above cover notes issued on 22.02.05 and 12.03.05 but on the other hand he stated that on the expiry of these cover notes, respondent no.2 failed to renew the policies which resulted in the termination of the policies on its own after the expiry of its validity.
45. R4W1 has stated that the offending vehicle was registered with the RTO office, Burari on 14.06.05 in the name of respondent no.2 and it was hypothecated with Bank of Punjab. He also produced the copy of insurance cover bearing no. 126580 Ex.R4W1/D issued by respondent no.4 and Form no. 20 Ex.R4W1/C. He stated that the sale letter and invoice issued by Triumph Motors bears the date of 01.06.05. R4W5 has stated that the period of insurance commences from the date of registration of the vehicle and the insurance in the present case would commence from 01.06.05 i.e. the date of invoice. R4W2 has stated that the Investigator had reported that the Suit No. : 748/10 26/35 Ramesh Budhwar Vs. Dilip Poddar 27 offending vehicle was sold on 25.07.05 and it was registered on 14.06.05. The record produced by R4W1 is contrary to the report of the Investigator. It shows that the vehicle was sold on 01.06.05 and it was registered on 14.06.05 which fact was also cleared by R4W3. In the present case respondent no.4 tried to project a new picture that the date of registration of vehicle was 31.03.05 but this fact was negated by R4W3 who has stated that he does not know who forged the date of 31.03.05 on his report. Facts and circumstances rather show that the cover notes were issued prior to the vehicle came into existence. The vehicle was registered with the RTO office on 14.06.05. Question now arises as to why an insured would pay the premium for the period, the vehicle would not come in existence. Although R4W2 has denied that the policy does not apply before the vehicle comes into existence but he has admitted that the policy was issued by the office for 12 months from the date of delivery of the vehicle and in para 7.2 of annexure R4W2/29 it is mentioned that the policy period is changed because it came into existence on road on 14.06.05. Nevertheless, Ld. counsel has stated that the policy cannot be extended and it can be renewed but we cannot lose sight of the fact that the policy becomes operative only when the vehicle comes into existence on the road. There is no denial from the fact that the cover note in respect of the offending vehicle was issued by the Suit No. : 748/10 27/35 Ramesh Budhwar Vs. Dilip Poddar 28 respondent no.4 which was also submitted by respondent no.2 before the registering authority. In this case, after the representation was given by respondent no.3, the officer of the company extended the policy after making the endorsement mentioning the engine no. and chasis no. on the policy. It has also come in evidence that in one of the matter of similar nature, the company extended the period of the policy. In this case, the policy was cancelled after the respondent no.4 came to know that the vehicle was involved in the accident but in the other case the policy was not cancelled. How the company can adopt pick and choose policy. I do not find force in the contention of Ld. counsel for respondent no.4 that the respondent no.2 fraudulently managed to get the endorsement. Facts and circumstances rather show that the endorsement was obtained by the respondent no.2 after disclosing all the material facts which were rightly considered by the officer of the company who made the endorsement.
46. For the foregoing reasons, I am of the view that the endorsement on the policy was wrongly cancelled by respondent no.4 and it is liable to pay compensation to the petitioners on account of its liability.
47. Issue No. 2 is decided accordingly in favour of the petitioners. Suit No. : 748/10 28/35
Ramesh Budhwar Vs. Dilip Poddar 29 R E L I E F
48. In view of my finding on issue No. 1 and 2, petitioners are entitled to the following compensation :
1) LOSS OF DEPENDENCY = Rs. 29,91,500/
2) LOSS OF LOVE AND AFFECTION = Rs. 25,000/
3) FUNERAL EXPENSES = Rs. 10,000/
4) LOSS OF ESTATE = Rs. 10,000/
5) LOSS OF CONSORTIUM = Rs. 10,000/
============
TOTAL = Rs. 30,46,500/
Less (Interim Award vide order
Dated 16.04.2007) = Rs. 50,000/
============
TOTAL = Rs. 29,96,500/
============
49. Petitioners are thus awarded a sum of Rs. 29,96,500/ (Rs. Twenty Nine Lakh Ninety Six Thousand Five Hundred only) alongwith interest @ 9% per annum from the date filing of petition till realization of the amount.
: RELEASE OF THE AWARDED AMOUNT : In the share of Petitioner no.1 : (Husband of deceased)
50. A sum of Rs. 23,96,500/ alongwith the proportionate interest thereon, is awarded to petitioner no.1 being husband of deceased. Suit No. : 748/10 29/35
Ramesh Budhwar Vs. Dilip Poddar 30
51. Out of this awarded amount, a sum of Rs. 15,00,000/ be deposited in the form of FDR in the name of petitioner no.1 in the following phased manner :
(a) A sum of Rs. 3,00,000/ for a period of 3 years.
(b) A sum of Rs. 3,00,000/ for a period of 4 years.
(c) A sum of Rs. 3,00,000/ for a period of 5 years.
(d) A sum of Rs. 3,00,000/ for a period of 6 years.
(e) A sum of Rs. 3,00,000/ for a period of 7 years.
In the share of Petitioner No. 2 and 3: (Children of the deceased)
52. A sum of Rs. 3,00,000/ each alongwith proportionate interest thereon, is awarded to petitioner no. 2 and 3 being children of the deceased. Deposition of awarded amount with STATE BANK OF INDIA, Saket Court Branch, New Delhi.
53. In terms of the directions given by Hon'ble High Court in case titled " Rajesh Tyagi Vs. Jaibir Singh and Ors." bearing FAO number 842/2003 decided on 08.06.20009, UCO Bank/ State Bank of India has agreed to open a Special Fixed Deposit Account for the victims of road accidents.
54. As per orders of Hon'ble High Court in case titled " New India Assurance Co. Ltd Vs. Ganga Devi & Ors bearing MAC. App. 135/2008" as well as Suit No. : 748/10 30/35 Ramesh Budhwar Vs. Dilip Poddar 31 in another case titled as " Union of India V/s Nanisiri" bearing M.A.C. Appeal No. 682/2005 dated 13.01.2010, directions were given to the Claims Tribunal to deposit part of the awarded amount in fixed deposit in a phased manner depending upon the financial status and financial needs of the claimants.
55. In consonance to the idea by which part of the awarded amount is ordered to be kept in fixed deposit / savings account by Hon'ble high Court, Insurance Company is directed to deposit the awarded amount in favour of the petitioners with State Bank of India, Saket Courts Complex Branch, against account of petitioners.
within a period of 45 days from today, failing which respondent no. 3 Insurance Company shall be liable to pay future interest @ 12% per annum till realization (for the delayed period).
56. Upon the aforesaid amount being deposited, the State Bank of India, Saket Court Complex, New Delhi, is directed to keep the awarded amount in the "fixed deposit / saving account'' in the following manner:
(i) The interest on the fixed deposit be paid to the petitioners / claimants by Automatic Credit of interest of their saving bank accounts with State Bank of India, Saket Court Branch, New Delhi. Suit No. : 748/10 31/35
Ramesh Budhwar Vs. Dilip Poddar 32
(ii) Withdrawal from the aforesaid account shall be permitted to claimants / petitioners after due verification and the Bank shall issue photo identity Card to claimants / petitioners to facilitate identity.
(iii) No cheque book be issued to claimants / petitioners without the permission of this Court.
(iv) The original fixed deposit receipts shall be retained by the Bank in safe custody. However, the original Pass Book shall be given to the claimants / petitioners alongwith the photocopy of the FDR's.
(v) The original fixed deposit receipts shall be handed over to claimants / petitioners at the end of the fixed deposit period.
(vi) No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the permission of this Court.
(vii)Half yearly statement of account be filed by the Bank in this Court.
(viii)On the request of claimants / petitioners, the Bank shall transfer the Suit No. : 748/10 32/35 Ramesh Budhwar Vs. Dilip Poddar 33 Savings Account to any other branch of State Bank of India, according to their convenience.
(ix) Claimants / petitioners shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit Account to Branch Manager, State Bank of India, Saket Courts Complex Branch, New Delhi.
DIRECTIONS FOR THE RESPONDENT NO.3, INSURANCE COMPANY
57. The Respondents no. 3 is directed to file the compliance report of their having deposited the awarded amount with State Bank of India, Saket Court Branch in this tribunal within a period of 45 days from today.
58. The Respondent no.3 is directed to furnish a copy of this award alongwith the cheques of the awarded amount to the Manager of State Bank of India, Saket Court Branch, so as to facilitate the Manager of State Bank of India, Saket Court Branch to have the identification of the claimants/ petitioners in whose favour the award has been passed.
59. The Respondent no. 3 is further directed to furnish the claim petition Suit No. : 748/10 33/35 Ramesh Budhwar Vs. Dilip Poddar 34 number and name of the parties at the back side of the cheques of the awarded amount, so that the same be not misplaced.
60. The Respondent no.3 shall intimate to the claimants / petitioners about their having deposited the cheques in favor of the petitioners in terms of the award, at the address of the petitioners mentioned at the title of the award, so as to facilitate them to withdraw the same.
61. Copy of this award / judgment be given to the petitioners who are directed to furnish the same to the Manager of State Bank of India, Saket Court Branch for necessary compliance after their having received the notice of the deposit of awarded amount from the Insurance company.
62. Copy of this Award / Judgment be given to counsel for the Insurance Company for necessary compliance.
63. File be consigned to record room.
Announced in the open court
on 25th Day of February, 2012 (SANJIV JAIN )
Presiding Officer : MACTII
South Distt. : Saket Courts
New Delhi : 25.02.2012
Suit No. : 748/10 34/35
Ramesh Budhwar Vs. Dilip Poddar
35
Ramesh Budhwar Vs. Dilip Poddar
Suit No. : 748/10
25.02.12
Present: Ld. Counsel for the parties.
Vide separate order of even date a compensation of Rs. 29,96,500/ (Rs. Twenty Nine Lakh Ninety Six Thousand Five Hundred only) with interest @ 9% per annum from the date of filing the petition till realization of the amount is passed in favour of petitioners.
Copy of the award be given to the parties.
File be consigned to Record Room.
(SANJIV JAIN ) Presiding Officer : MACTII South Distt. : Saket Courts New Delhi : 25.02.2012 Suit No. : 748/10 35/35