Delhi District Court
Ram Kishan vs . Bhajan Lal & Ors. on 7 November, 2013
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Ram Kishan Vs. Bhajan Lal & Ors.
IN THE COURT OF SH. AMAR NATH
PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS
TRIBUNAL,DWARKA COURTS, NEW DELHI
IN THE MATTER OF : RAM KISHAN VS. BHAJAN LAL & ORS.
M.A.C.P NO 431/07/08
1 Sh Ram Kishan,
s/o Sh Kewal Singh,
r/o B83, Baba Haridass Nagar,
New Delhi43 ........Petitioner
Through Advocate Sh. Mohan Kumar
Ch. No. 849, Dwarka Courts,
New Delhi.
Versus
1 Bhajan Lal
s/o Sh Het Ram,
r/o VPO Dhansa,
New Delhi
2 Nanhey Ram,
s/o Sh Manphool Singh,
r/o Village Goela Kalan,
Tehsil Bahadurgarh,
Distt Jhajjar , Haryana
3 The Oriental Insurance Co. Limited,
A25/27, Asaf Ali Road
New Delhi110002 .......Respondents
Ram Kishan Vs. Bhajan Lal & Ors.
MACP No. 431/07/08 (pages no. 1 to 24)
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1. Date of institution : 04/07/2007
2. Date of framing of issues : 08/01/2008
3.Date of hearing arguments : 31/10/2013
4. Date of decision : 07/11/2013
AWARD/JUDGMENT:
1. Brief facts of the case are that on 5/5/2007, Ram Kishan
( hereinafter the petitioner) was returning back to his residence from Dhansa by driving his Maruti Car bearing no. DL8CB5436 after obeying the traffic rules & regulations. At about 7.30 PM on that day when he reached near bus stand Kazipur village, Main Dhansa Road then his car was hit from its right side by a truck bearing registration no HR63A2679 ( hereinafter the offending vehicle) being driven by respondent no 1 ( in short R1) at a very high speed in rash & negligent manner. Due to the forceful impact of the hit, the petitioner received grievous multiple injuries. The offending vehicle was owned by respondent no. 2 (in short R2 ) which was insured with respondent no. 3 (in short R3).
2. Pursuant to services of notice of the claim petition, respondents appeared and filed their respective WS. A joint WS was filed by R1 & R2 wherein denied the factum and manner of the accident pleading that R1 was Ram Kishan Vs. Bhajan Lal & Ors.
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falsely implicated in the said accidental case with a view to extort money. It is pleaded that the accident had taken place owing to the sole negligence of petitioner as the petitioner had hit the stationary vehicle of the R2 after coming from the wrong side as he could not control his vehicle because of under the influence of alcohol. It is stated that amount claimed by the petitioner is false and exorbitant.
3 R3 in its written statement has pleaded that the petition is vague as the same does not disclose any cause of action. The offending vehicle was driven by a person without permission or authority of the insured and even without holding a valid license which was contrary to the terms of the insurance policy. However, it is admitted that the offending vehicle was insured with it vide policy no. 261200/2007/3894 from 6/9/2006 to 5/9/2007 in the name of R2. The amount claimed is highly exorbitant, exaggerated and the same is without any justification.
4. On the basis of the pleadings, issues were framed on 8/01/2008 by the Ld. Predecessor of this court.
5 Having heard the rival contentions advanced on behalf of the petitioner and after perusal of the material including evidence on record, my issue wise findings are as under: ISSUE NO. 1 Whether the petitioner sustained injury/ Ram Kishan Vs. Bhajan Lal & Ors.
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permanent disability in the accident on 5/5/2007 in road accident involving motor vehicle no.
HR63A2679 Tata Half body truck being driven by R1 in rash and negligent manner and owned by R2, insured with R3?
....OPP 6 The Ld. Counsel for the insurance company has laid a great stress while contending that since the petitioner was under the influence of liquor at the time of accident, therefore, then the compensation, if any is liable to be apportioned. Though, the Doctor had confirmed the consumption of liquor of the petitioner while preparing his MLC but it can not be ignored that the MLC Ex. PF does not find mention the quantity of the liquor consumed which is dangerous to drive the vehicle on the road.
7 Section 185 of the M. V. Act stipulates that the drug or drugs specified by Central Govt. notification in the Official Gazette shall be deemed to render a person incapable of exercising proper control over motor vehicle i.e. Exceeding 30 mg. Per 100 ml. of blood detected in a test by breath analyzer but in the instant case, no blood test of the petitioner was carried out. Negligence does not always mean absolute carelessness, but want to such degree of care as is required in particular circumstances. Had there been controllable speed of the offending vehicle, the driver would have avoided the accident. Moreover, standard of proof in a claim petition is not as rigid and high as in criminal cases. Ram Kishan Vs. Bhajan Lal & Ors.
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In a criminal case, proof beyond reasonable doubt is required, however, in claim petition it is not.
8 Driver of the heavy motor vehicle approaching another vehicle is always expected to reasonably adjust the speed, blow the horn to avoid any untoward incident. Prudent driver would always drive with caution and at reasonable speed. For these reasons, plea as to fastening liability for apportionment of contributory negligence upon disabled victim is not sustainable after applying the ratio of judgment titled as Shaligram Ramaji Dhekale and Anr. Vs. Ravindra Manikrao Khadse & Anr. 2010 ACC 301 (Bombay High Court). 9 In order to discharge the onus of issue, the petitioner filed his examination in chief by way of affidavit Ex. PW1/A. He during the course of his deposition had narrated the sequence of the events in the paragraph no. 2 of his affidavit to show as to how and in what manner the accident did take place. On being cross examined on behalf of R1 & R2, he denied the suggestion that he was involved in two accident cases being driver of DTC. He further denied the suggestion that he was under suspension from his duty. He also denied the suggestion that he was under the influence of liquor. He further denied the suggestion that the offending truck was stationary on the side of road and the driver of the truck was not present in the said truck and he was taking the tea at the shop which was situated at some distance there. He denied the suggestion that accident took place due to his negligent driving under the influence of Ram Kishan Vs. Bhajan Lal & Ors.
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liquor. On being cross examined on behalf of R3 ( insurance company) nothing material came out to make him untrustworthy witness. 10 Besides this, the petitioner has proved the criminal record being the certified copies of the documents such as, Charge sheet Ex. PA, FIR Ex. PB, site plan Ex. PC and mechanical inspection report Ex. PD. Proceedings u/s 265 B CrPC running into 6 pages whereby R1 had pleaded guilty in the proceeding of plea bargaining. He is convicted and sentenced for the offence punishable u/s 279 IPC by compounding the offence u/s 338 IPC and the same are collectively Ex. PE, MLC Ex. PF and discharge summary Ex. PG to establish the factum of the accident.
11 Having regards to these fact and circumstances, I am of the opinion that petitioner has been able to establish that accident did take place due to negligence of driver of the offending vehicle.
12 Issue No.1 is decided in favor of the petitioner accordingly. ISSUE NO 2 Whether the petitioner is entitled to claim compensation if so, what amount and from whom?
.....OPP 13 As issue no.1 is decided in favor of the petitioner in affirmative, Ram Kishan Vs. Bhajan Lal & Ors.
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petitioner is entitled for the compensation. Quantum of the compensation
however, is required to be calculated.
14 It has been held in a catena of judgments by Hon'ble Apex Court
and various High Courts that emphasis in cases of personal injury and fatal accident should be on awarding substantial, just and fair compensation and not a token amount. It has been held in a number of judgments that 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. In examining the question of damages for personal injury, pecuniary or nonpecuniary damages are required to be taken into account.
15 It has been held by Hon'ble Apex Court in Kavita v. Deepak and Ors. 2012 ACJ 2161. It was observed as under :
"In case of injury while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which is capable of being calculated in terms of money; whereas nonpecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: ( i) medical attendance; (ii) loss of Ram Kishan Vs. Bhajan Lal & Ors.
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earning of profit upto the date of trial ; (iii) other material loss. So far nonpecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may no be able to walk run or sit; (iii) damages for the loss of expectation of life, i.e. on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment frustration and mental stress in life."
16 In view of above, in order to calculate the amount of compensation, the sum is required to be considered under the various heads as delineated above by Hon'ble Apex Court.
(a) MEDICINES & TREATMENT: 17 PW1 deposed that immediately after the accident, he was
taken to RTRM Hospital, New Delhi where his MLC bearing no. 567/07 Ex. PF was prepared. From there he was referred to Safdarjung hospital for further treatment where he remained admitted during the period 6/5/2007 to 12/6/2007. Discharge summary is Ex. PG. His right leg was amputated during the hospitalization in order to save his life. He remained under treatment on bed for Ram Kishan Vs. Bhajan Lal & Ors.
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quite long time. Due to the amputation of his right leg, he became permanent disabled person and certificate Ex. PW1/1 to that effect is issued by the Safdarjung hospital. It is averred that he has spent Rs. 70,000/ on his treatment and huge amount is likely to be incurred in future as he is still under treatment. Medical bills are Ex. PW1/D1 to Ex. PW1/ D12.
18 Perusal of the bills on record, it appears that the petitioners did take place the medical bills on record amounting to Rs. 23,206/. I am of the considered opinion that the petitioner had spent over and above the amount of medical bills but I award a sum of Rs. 23,206/ towards medicine and treatment against the bills actually proved.
19 Now the question remains to be decided with regard the earning of the deceased. Principle has been decided by Hon'ble Apex Court that while considering amount of compensation, future prospective income must have to be taken into account on the basis of age and income of the deceased. 20 Classifications with regard to cases of injuries have been made by Bingham in his Motor Claim Cases, Munkman in his Employer's Liability and Kemp & Kemp in their Quantum of Damages into four categories i.e. a) total works ; b) partial wrecks & c) where limbs & eyes and other specific parts of limb lost and d) smaller injuries which cannot be specifically grouped but for which compensation can be assessed by comparison with injuries of loss of limbs e.g. comparing permanent " wrist injuries" with "loss of hand" or Ram Kishan Vs. Bhajan Lal & Ors.
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comparing a temporary broken arms with the loss of the arm etc. 21 Before proceedings further, let me quote the relevant judgments:
(a) In 2013 (3) CLJ 238 S. C. Neerupam Mohan Mathur Vs. New India Assurance Co. Civil appeal no. 4814 of 2013 (arising out of SLP (C) No. 6282 of 2011) decided on 01.07.2013, their lordships were pleased to make the following observations:
"Motor Vehicles Act, 1939 - Section 110A Accident claim - Permanent disability - Enhancement of compensation - Amputation of right hand - Accident took place due to rash and negligent act of driving of bus and collision with truck - Accident witnessed by persons travelling in bus - Claimant holding Post Graduate diploma in mechanical engineering and young man of 32 years at the time of awarded compensation of Rs. 3,20,000/ Claimant awarded compensation under pecuniary and non pecuniary damages including expenses incurred on treatment hospitalisation, loss of earning during treatment and future earning, future medical expenses, damages for pain and suffering and loss of expectation of life - Compensation enhanced to Rs. 11,64,300/ with interest at the rate of 12 percent - Order modified".
(b) In 2012 ACJ 583(SC)titled 'Mohan Soni v/s Ram Avtar Tomar & Ors.', their lordships were pleased to make the following observations:
"The loss of one of the legs either to the marginal farmer Ram Kishan Vs. Bhajan Lal & Ors.
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or the cyclerickshawpuller would be the end of the road insofar as their earning capacity is concerned. But in case of a person engaged in some kind of desk work in an office, the loss of a leg may not have the same effect. The loss of a leg (or for that matter the loss of any limb) to anyone is bound to have very traumatic effect on one's personal, family or social life but the loss of any of the legs to a person working in the office would not interfere with his work/earning capacity in the same degree as in the case of a marginal farmer or a cyclerickshawpuller".
(c) In Sri Laxman v. Divisional Manager,Oriental Insurance Co.Ltd. (2012) ACJ 191). Hon'ble Supreme Court has held that : if the victim of an accident suffers permanent or temporary disability, then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the pain, suffering and trauma caused due to accident, loss of earning and victim's inability to lead a normal life and enjoy other amenities, which he would have enjoyed but for the disability caused due to the accident.
(d) In Gulam Nabi Bhat vs. Md. Arman Ali & Ors, MAC. App.335/2009 passed by Hon'ble High Court of Delhi decided on 07/08/2012, his Lordship was pleased to make following observations:
14. For example, if the left hand of a claimant is amputated, the permanent physical of functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of Ram Kishan Vs. Bhajan Lal & Ors.
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earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as inn the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less.
In fact, there may not be any need to award any compensation under the head of 'loss of future earnings', if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity."
(b) LOSS OF INCOME ON ACCOUNT OF DISABILITY : Ram Kishan Vs. Bhajan Lal & Ors.
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22 PW1 during the course of his deposition had deposed that about
four years prior to the accident, he was employed as Driver in DTC but he could not renew his heavy driving licence and thus, LMV licnece was issued to him, therefore, he was not given duty by DTC. However, he got the duty in DTC w.e.f. 3/1/08 of non driving job after this accident. His life span has been ruined due to the permanent disability. His services are stated to have been down graded as the duty of driver was not given to him. He would be entitled to increase in salary due to inflation.
23 PW2 Sh. Sunil Kumar, Dealing Assistant, DTC. He proved the letter dated 22/6/2009 as Ex. PW2/A having details of the salary paid to the petitioner, copy of letter dated 30/6/1998 as Ex. PW2/B and copies of letter dated 12/6/2009 as Ex. PW2/C. He proved another letter dated 28/4/2009 whereby he was intimated by the department that he is being retired compulsorily because of amputation of right leg above knee and having unfit for extension of service and the copy of letter Ex. PW2/E. On being cross examined, he stated that he is getting the pension. As per rule, a driver of DTC is to retire at the age of 55. The service of driver is extended for one year subject to his fitness which can be extended till 60 years. If the driver continues to remain in service because of extension, he will retire at the age of 60 years. If the driver is found fit at the time of his age of retirement he is paid full salary till the time of his retirement. However, if a driver is not found fit and retired because of Ram Kishan Vs. Bhajan Lal & Ors.
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unfitness he is not paid salary after the date of retirement. 24 PW3 Ms. Chanchal, DTC Depot Maya Puri deposed that she did not deal with the medical treatment expenses as the same was dealt with Smt. Imla Devi. PW4 Smt. Imla Sethi deposed that as per record Sh. Ram Kishan petitioner had not taken any claim from the department 5/5/2007 onwards till May 2008. No amount of medical bills was reimbursed during the aforesaid period by the department. His entire service record had also been sent to Dichaon Kalan Depot from Maya Puri Depot vide letter number MPD/PFC(Driver)/08/1644 dated 1/5/08. As per Ex. PW2/3, no salary was paid to him during the calender proceeding years from 2004 to 2007. As there is no corroborative evidence with regard to the salary of the victim then regard is to be had to the minimum wages of skilled worker prevalent at the time of accident. Accident did take place on 5/5/07. The minimum wages of skilled worker were Rs. 3,894/ as on 01/02/2007.
25 In an unreported judgment of our own Hon'ble High Court titled as "Rajpal & ors. Vs. New India Assurance Company Ltd." MAC APP No. 405/2013 decided on 17/9/2012, it has been observed that the claimants are entitled for future prospects while determining the loss of dependency of the deceased after relying upon the judgment of Rajesh & others Vs. Rajbir Sijngh & others in C. A. No. 3860/2013 (Arising out of SLP (C) No. 24825/2010) on 12/04/2013 wherein their Lordships observed with regard to Ram Kishan Vs. Bhajan Lal & Ors.
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the future prospects of the accidental death of the victim. Relevant portion of the judgment is reproduced as under: Since, the Court in Santosh Devi's case (supra) actually intended to follow the principle in the case of Salaried person as laid in Sarla Verma's case (supra and to make it applicable also to the selfemployed and persons on fixed wages. It is clarified that the increase in the case of those groups is not 30% always; it will also have a reference to the age. In other words, in the case of self employed or persons with fixed wages, in case, the deceased victim was below40 years, there must be an addition of 50% to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any, Addition should be 30% in case the deceased was in the age group of 40 to 50 years.
In Sarla Verma's case (supra), it has been stated that in the case of those above 50 years, there shall be no addition. Having regard to the fact that in the case of those self employed or on fixed wages, where there is normally no age of superannuation, we are of the view that it will only be just and equitable to provide an addition of 15% in the case where the victim is between the age group of 50 to 60 years so as to make the compensation just, equitable, fair and reasonable. There shall normally be no addition thereafter.
26 Relevant paragraph of the judgment Rajpal & Ors. (Supra) is reproduced as under: "4. The admitted fact is that every salary/income gets increase due to the inflation. Every person after sometime earns more than what he was earning earlier, therefore, in my Ram Kishan Vs. Bhajan Lal & Ors.
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considered opinion, in every case whether a person is in a Government job or in a private job, his income keeps on escalating. It is immaterial whether he/she is in permanent job or temporary. Earlier majority of the employment was in public sector but in the changed scenario, majority of the people finds employment in private sector. Nowadays, people are very frequently changing their employment. That does not mean they do not have permanent employment."
27 Aforesaid view is reiterated by our own Hon'ble High Court in the later judgment MAC Appeal No. 846/11 decided on 30/9/2013 titled as ICICI Lombard General Ins. Co. Ltd. Vs. Angrej Singh & Ors. 28 Following the judgments (supra), it can be well said that petitioner is entitled an addition of 15% of the income of the minimum wages of skilled worker prevalent at the time of accident towards future prospects of the victim as he was having the age of 53 years which was above 50 and below 60 at the time of accident. An addition of 15% in his income on account of inflation to compute the loss of future earning capacity i.e. Rs.3894/ + 15% (Rs.584.1/) which comes to Rs.4478.1/, rounded of to Rs. 4478/. 29 Besides this, petitioner has proved a disability certificate Ex. PW1/A by examining Dr. N. Lias Ram, Sr. Specialist PMR, Safdarjung Hospital, New Delhi. According to Doctor, petitioner was found to have a case of right above knee amputation having 80% of permanent disability in relation to right Ram Kishan Vs. Bhajan Lal & Ors.
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lower limb. His permanent disability with regard to his right lower limb and would not be able to lead him normal life. His day to day activities have certainly been affected as he was a driver by profession at the time of accident. 30 As regards the age of the petitioner is concerned, the petitioner has relied upon the driving licence Ex. PW1/3 which finds mentioned his date of birth as 24/4/1954. If the age of the petitioner is calculated on that basis then it came to be 53 years on the date of accident i.e. 05/05/2007. An operative multiplier shall be '11' as per the judgment of Sarla Verma v/s DTC & Anr. (2009) 6 SCC 121. Considering the disability certificate issued by the doctor, compensation is calculated as Rs. 4478X80/100X11X12 by applying the ratio of the judgment passed by our own Hon'ble High Court in case titled as Gulam Nabi Bhat Vs. Md. Arman & Ors (SUPRA) after relying upon the judgment of Apex Court passed in Raj Kumar vs. Ajay Yadav 2011 ACJ(SC)wherein their Lordships have pleased to make the following observations.
The provision of Motor Vehicles Act, 1988 ('the Act' for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or Tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequence, is Ram Kishan Vs. Bhajan Lal & Ors.
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inevitable. A person is not only to be compensation for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned.
31 I, therefore, award a sum of Rs. 4,72,876.8/, rounded of to Rs. 4,72,877/ to the petitioner towards loss of earnings due to permanent disability.
c) PAIN & SUFFERING:
32. Pain and suffering is covered under non pecuniary damages. To calculate the same, nature of injuries sustained by the injured, duration during which he got the medical treatment and was confined to bed, are some of the factors which are required to be taken into account.
33. In the present case it is apparent on the basis of the medical record proved by petitioner that his right leg was amputated during the hospitalization in order to save his life. He remained under treatment on bed for quite long time. He is still under treatment. Due to the amputation of his right leg, he became permanent disabled person. The mental agony which the petitioner might have undergone at the time of accident, cannot be equated or quantified in terms of money. Physical pain which the petitioner must have undergone during the course of treatment would have been immense.
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34 To compensate the petitioner under this head, I award a sum
of Rs.50,000/ to the petitioner for pain and suffering.
d) CONVEYANCE & SPECIAL DIET :
35 PW1 during the course of his deposition has stated that
had spent huge amount on conveyance and special diet. but failed to produce any documentary evidence to that effect, however considering the nature of injuries sustained by him, he would have paid repeated visits to the hospital / doctor for his follow up treatment incurring expenses on conveyance. He must have required to take special diet to recover from the injuries sustained by him 36 I, therefore, award a sum of Rs. 25,000/ to the petitioner towards Conveyance and special diet.
37 Keeping in view the nature of injuries and nature of evidence following amount shall be just compensation:
1 Loss of Medicines & Treatment : Rs 23,206/ 2 Pain and Suffering : Rs. 50,000/ 3 Loss of Amenities : Rs. 25,000/ 4 Conveyance &Special Diet : Rs. 25,000/ 5 For loss of earning on account of disability : Rs 4,72,877/ ______________________________________________________________ Total : Rs. 5,96,083/ (Rupees Five Lacs Ninety Six Thousand and Eighty Three only) Ram Kishan Vs. Bhajan Lal & Ors.
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______________________________________________________________ INTEREST
38 The petition was filed on 4/7/2007. There is no material to withhold the interest. Petitioner is awarded interest @ 7.5% per annum from the date of filing of petition till its realization.
LIABILITY 39 Ld. Counsel for the insurance company has taken a stand while making submission that since the insured has failed to produce the valid permit of the offending vehicle despite the service of notice u/s 12 rule 8 CPC, thus, the court can presume that the offending vehicle was being driven without a valid and effective permit on the date of accident. To support his contention, he has examined R3W1 Sh. V. D. Talwar, Administrative Officer, OIC Ltd. who confirmed the aforesaid facts in his testimony. He proved the copy of notice as Ex. R3W1/B sent to the driver and owner of the offending vehicle through registered post and postal receipts are Ex. R3W1/C (collectively). The AD card in respect of the service of notice is Ex. R3W1/D. The notice neither responded nor replied and inference is that driver was not holding any permit at the time of accident. It is further averred that since the offending vehicle was being driven in breach of the terms and conditions of the insurance policy and accordingly, the insurance company can not be held liable for payment of any amount of compensation.
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40 In National Insurance Company limited Vs. Challa
Bharathamma and others III (2004) ACC 292 (SC) , it was held as under: Motor Vehicles Act,1 988, sections 149(2) (a) (i) (a) and 149 (4) read with section 66 Motor insurance PermitDefences available to insurance company Autorickshaw met with accident resulting in death of two persons and third sustained injuries Insured had not obtained permit to ply the vehicle Whether insurance company is liable - Held : no; however, insurance company directed to deposit the amount and recover the same from the insured by initiating proceedings before the executing court, it need not file a separate suit.
41 After applying the ratio of judgments (supra), the defence sought to be raised by the insurance company u/s 149 of Motor Vehicle Act stands established that the offending vehicle was being driven in violation of the terms of the contract as the driver did not have any permit to ply the vehicle in question on road at the time of accident.
42 Having regard the twin interest of petitioner who is a third party in this case and that of the insurance company and coupled with the fact that the vehicle involved in the accident was insured with respondent no. 2, it would be appropriate to direct the insurance company/R2 to compensate the petitioner in terms of awarded amount with the liberty to recover subsequently from respondents no 1.
43 Recovery rights are, accordingly, granted to insurance company Ram Kishan Vs. Bhajan Lal & Ors.
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against respondents no. 1 and 2 after having relied upon the judgment of our own Hon'ble High Court pronounced on 29/2/12 bearing MAC Appeal No. 329/10 titled as Oriental Insurance Company Ltd. Vs. Rakesh Kumar and others 44 In view of the above discussions, issue no. 2 is decided in favour of the petitioner and against the respondents.
ISSUE NO 3 Relief.
45 In view of findings on issues no. 1 and 2, this issue is also decided in favour of the petitioner and against the respondents . The petitioner is awarded Rs. 5,96,083/ (Rupees Five Lacs Ninety Six Thousand and Eighty Three only) with interest @ 7.5% annum from the date of filing of the petition till realization.
46 The awarded amount be deposited by R3 with Syndicate Bank, Dichaon Kalan, DTC Depot, New Delhi in Saving Bank account no. 90802010064359 having an IFSC Code No. SYNB0009080 either through RTGS or NEFT mode within 30 days from today (with proof of notice of deposit of the amount of award to the claimant as well as his counsel) under intimation to the Nazir of this Court. Upon the aforesaid amount being deposited, Syndicate Bank, Dichaon Kalan, DTC Depot, New Delhi is directed to release Rs. 1,96,083/ with interest to the petitioner by transferring the Ram Kishan Vs. Bhajan Lal & Ors.
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same to his saving bank account after keeping the remaining amount in the shape of FDR in the following manner :
a) Rs. 1,00,000/ for a period of one year.
b) Rs. 1,00,000/ for a period of two years. c) Rs. 1,00,000/ for a period of three years. d) Rs. 1,00,000/ for a period of four years. 47 The interest on the aforesaid fixed deposits shall be paid monthly
by automatic credit of interest in the respective Savings Accounts of the beneficiary.
48 Withdrawal from the aforesaid account shall be permitted to the beneficiary after due verification and the Bank shall issue photo Identity Card to the beneficiary to facilitate identity.
49 No cheque book shall be issued to the beneficiary without prior permission of this Court.
50 The original fixed deposit receipt shall be retained by the Bank in the safe custody. However, the original Pass Book shall be given to the beneficiary along with the photocopy of the FDR. Upon the expiry of the period of each FDR, the Bank shall automatically credit the maturity amount in the Saving Account of the beneficiary.
51 No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the prior permission of this court. Ram Kishan Vs. Bhajan Lal & Ors.
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-:24:-
Ram Kishan Vs. Bhajan Lal & Ors.
52 On the request of the beneficiary, Bank shall transfer the saving
account to any other branch according to his convenience. 53 R3 shall inform the petitioners as well as his counsel through registered post that the cheque of the awarded amount are being deposited so as to facilitate the petitioner to know about the deposit in his account. 54 Copy of the award be supplied to both the parties at free of cost. Copy of this award be sent to the Nodal Officer of the Bank alongwith the Court stamped, copy of the photograph and signature of the claimant. 55 File be consigned to Record Room.
ANNOUNCED IN OPEN COURT (AMAR NATH)
DATED: 07/11/2013 PRESIDING OFFICER,
MOTOR ACCIDENTS CLAIMS TRIBUNAL,
(1+1) DWARKA COURTS, NEW DELHI
Ram Kishan Vs. Bhajan Lal & Ors.
MACP No. 431/07/08 (pages no. 1 to 24)