Delhi District Court
Taslimuddin & Ors. vs . Mahender Singh Saini & Ors. Id No. ... on 19 April, 2017
Taslimuddin & Ors. Vs. Mahender Singh Saini & Ors. ID No. 15237/15
BEFORE MOTOR ACCIDENTS CLAIMS TRIBUNAL:
NORTHEAST DISTT. : KARKARDOOMA COURTS COMPLEX: DELHI
Presiding Officer: ANAND SWAROOP AGGARWAL: DHJS
Additional District & Sessions Judge: Delhi
ID No.: 15237/15 FIR No. 206/06
Remand Case No. 01/14 P.S. Welcome
(Arising out of MACT No. 295/09/06) U/s. 279/337/304A IPC
In the matter of:
1. Taslimuddin S/o. Late Akbar Ali 5. Mohd. Najrul S/o. Taslimuddin
(Father of Deceased) (Aged about 11 years)
Aged about 52 years
2. Shahar Bano W/o. Taslimuddin 6. Yasmin D/o. Taslimuddin
Aged about 49 years (Aged about 8 years)
3. Tahira Begum D/o. Taslimuddin 7. Tanvir S/o. Taslimuddin
(Aged about 17 years) (Aged about 7 years)
4. Manjoor Alam S/o. Taslimuddin 8. Imran S/o. Taslimuddin
(Aged about 15 years) (Aged about 6 years)
(Claimant no. 3 to 8 being minor are represented through Taslimuddin, Father / Natural
Guardian / Claimant No.1)
All R/o.: Village Kauwa Mehra, P.S. Thakur Ganj, Distt. Kishan Ganj, Bihar.
Through:
Mr. Arun Sharma, Adv.
D504, 5th Floor, KKD Courts,
Delhi - 110032.
( details given in compliance with Clause 27 of
Modified Claims Tribunal Agreed Procedure) ..... Claimants
Vs.
1. Mahender Singh Saini 2. United India Insurance Co. Ltd.
S/o. Sh. Atar Singh Saini Kachehari Road M, Meerut, U.P.
R/o. 430, Bhagwat Pura, Meerut, U.P. (INSURER OF VEHICLE No.
(OWNER OF VEHICLE No. UP15G3936 UP15G3936)
3. Teekam Singh @ Pintoo
S/o. Sh. Bhim Singh,
R/o. Vill. Chapraulla, P.S. Babu Garh,
Chhawani, Distt. Ghaziabad, U.P.
(DRIVER OF VEHICLE No. UP15G3936) ......... Defendants
Page No. 1 of 20 (ANAND SWAROOP AGGARWAL)
PO - MACT / NE / KKD / DELHI / 19.04.2017
Taslimuddin & Ors. Vs. Mahender Singh Saini & Ors. ID No. 15237/15
i) Date of institution of claim petition : 19.07.2006
ii) Date of reserved for award : 01.04.2017
ii) Date of award : 19.04.2017
APPLICATION U/S. 166 & 140 OF THE MOTOR VEHICLES ACT, 1988
AWARD
1.1 On 14.05.2012 ld. predecessor of this court passed the award in the following
terms:
"AWARD
1. Petitioners are the legal heirs of deceased Mukhtiar who have filed a claim
petition U/s 166 & 140 of Motor Vehicle Act, 1988 to seek compensation from the
respondents i.e Sh. Mahender Singh Saini, owner of the Tata 407 bearing
registration no. UP15G3936 which was insured with United India Insurance Co. Ltd., Subsequently it was revealed that Sh. Teekam Singh was the driver of the Tata 407. Thus, he was permitted to be impleaded as respondent no. 3. However, respondent no. 3 did not appear despite service by way of publication and he was proceeded exparte vide orders dated 17/11/11.
2. The petition was contested only by respondent no. 2 as respondent no. 1 was proceeded exparte vide orders dated 01/04/08 as he also failed to put in appearance despite service by way of publication. Respondent no. 2 raised various objections in the written statement to get itself absolved from paying the compensation.
3. Accordingly, on the pleadings of the parties, following issues were framed on 01/04/08:
1. Whether Sh. Mukhtiyar sustained fatal injuries due to rash and negligent driving of Tata 407 bearing no. UP15G3936? OPP.
2. Whether the driver of the said offending vehicle was not having valid driving licence and if so, to what effect? OPR2.
3. Whether the petition is bad for nonjoinder of the necessary parties and if so, to what effect? OPR2.
4. Whether the above mentioned vehicle was not insured with R2 and if so, to what effect? OPR2.
Page No. 2 of 20 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD / DELHI / 19.04.2017 Taslimuddin & Ors. Vs. Mahender Singh Saini & Ors. ID No. 15237/15
5. Whether the petitioners are entitled to any compensation, if so from whom and of what amount?
6. Relief.
4. To prove the claim, petitioner had examined Sh. Ranjit Singh as PW1, Sh. Taslimuddin as PW2 and Mohd. Nazim as PW3. Respondent no. 2 did not examine any witness in defence. It was also proceeded exparte vide orders dated 30/04/12 due to nonappearance on its behalf.
Issue wise findings (Issue No. 1 and 3 are interconnected, thus are being decided together) (1. Whether Sh. Mukhtiyar sustained fatal injuries due to rash and negligent driving of Tata 407 bearing no. UP15G3936? OPP.
3. Whether the petition is bad for nonjoinder of the necessary parties and if so, to what effect? OPR2.)
5. To prove that respondent no. 3 was driving Tata 407 in a rash and negligent manner and had caused the accident, petitioners had relied upon the testimony of PW1 Sh. Ranjit Singh and PW3 Mohd. Nazim. The testimony of PW3 is more relevant as he was an independent eye witness of the accident. He deposed that on 12/05/06, at about 5.00 am, he was also travelling in Tata 407 bearing no. UP15G3936 with deceased Mukhtiar and other copassengers. The driver of the vehicle was driving it at a very high speed and in a rash and negligent manner. The passengers in the vehicle had told the driver to slow down the speed but he did not pay any heed. Due to the over speed and negligent driving of Tata 407 by its driver, the said vehicle hit a Maruti Van at Welcome Redlight Near Dwarka Mandir, G.T. Road, Shahdara and due to the impact, Tata 407 turned turtle. The passengers traveling in Tata 407 sustained injuries whereas Sh. Mukhtiar suffered fatal injuries and he died on the same day in the hospital. The testimony of PW3 is unchallenged.
6. PW1 Sh. Ranjit Singh supported the testimony of PW3 Mohd. Nazim. He was the complainant of the accident case as FIR bearing no. 206/06 U/s 279/337/304A IPC was registered against respondent no. 3 on his statement. The witness stated in his affidavit Ex. PW1/A that he was driving the Maruti Van bearing no. DL6CH9967 and was going towards Shri Ram Dwarka Mandir Welcome from Shyam Lal College Chowk. When there was a green signal, he took a right turn to proceed towards Welcome when all of a sudden the driver of Tata 407 despite the red light came at a very high speed, in a rash and negligent manner and had hit his Van from left side. Due to the accident Tata 407 turned turtle and the passengers in Tata 407 suffered grievous injuries and one passenger received fatal injuries. The testimony of PW1 is also unchallenged. The petitioners have also proved FIR Ex. PW2/A of the accident Page No. 3 of 20 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD / DELHI / 19.04.2017 Taslimuddin & Ors. Vs. Mahender Singh Saini & Ors. ID No. 15237/15 case which has been registered on the statement of PW1. The criminal case proceedings attested by the SHO, P.S. Welcome have been filed on record. The mechanical inspection report of both the vehicles i.e MarutiVan as well as Tata 407 support the testimony of PW1. The Maruti Van has been damaged from its left side whereas Tata 407 has been damaged on its right. Ex. PW2/I is the postmortem report of the deceased Mukhtiar, placed on record, in which the cause of death has been opined as hammoragic shock as well as cerebral cranio damage produced by blunt force impact. Thus, from the oral and documentary evidence adduced on the record by the petitioners it has been established that respondent no. 3 was driving the Tata 407 in a rash and negligent manner and thereby he had caused the accident which had resulted in fatal injuries to Sh. Mukhtiar. Accordingly, issue no. 1 is decided in favour of petitioners and against respondents.
7. Although on behalf of respondent no. 2 no arguments were addressed but previously an objection was raised on its behalf that in the accident two vehicles i.e Tata 407 bearing registration no. UP15G3936 and Maruti Van bearing no. DL6CH9967 were involved but the owner, driver and insured of Maruti Van were not impleaded as parties in the petition, therefore, the petition is bad for nonjoinder of necessary parties. The respondent no. 2 has not come forward to prove the said defence raised on its behalf. Nonetheless, the petitioners have been able to prove that the accident was caused due to rash and negligent driving of Tata 407 by respondent no. 3 which had first hit the Maruti Van bearing no. DL6CH9967 and had turned turtle. Therefore, there was no need to implead the driver, onwer and insured of Maruti Van bearing no. DL6CH9967 as the driver of the said Van was in no manner responsible in occurrence of the accident. Moreover, the driver of Maruti Van bearing no. DL6CH9967 has been examined as PW1 and he was also the complainant of the accident case. The respondents have not come forward to challenge the testimony of PW1 which is unrebutted qua the manner in which the accident had occurred. Accordingly, respondent no. 2 has failed to prove that the petition is bad for nonjoinder of the necessary parties. Issue no. 3 is decided against respondent no. 2 and in favour of petitioners.
Issue no. 2 & 4 (Both the issues are interconnected, thus, are being decided together.
(2. Whether the driver of the said offending vehicle was not having valid driving licence and if so, to what effect? OPR2.
4. Whether the above mentioned vehicle was not insured with R2 and if so, to what effect? OPR2).
8. On behalf of respondent no. 2 objections were raised that respondent no. 1 had committed breach of the terms of the insurance policy as respondent no. 3, the driver of Tata 407 was not holding a valid driving licence and the vehicle was not Page No. 4 of 20 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD / DELHI / 19.04.2017 Taslimuddin & Ors. Vs. Mahender Singh Saini & Ors. ID No. 15237/15 insured. Respondent no. 2 failed to prove both these objections. The photocopy of the Registration Certificate of Tata 407 has been filed on record which shows that the Tata 407 was registered in the name of respondent no. 1 Sh. Mahender Singh Saini. The insurance cover note of the vehicle is also on record and the name of the insured has been shown as Sh. Mahender Singh Saini. The insurance policy was valid w.e.f 15/11/05 to 14/11/06. The accident had occurred on 12/05/06. Therefore, the Tata 407 had a valid insurance policy on the day of the accident but the vehicle has been registered as a light goods vehicle. The said insurance policy covers the 3rd party risk for goods weighing upto 5300 kg and 3 passengers. The driving licence of the respondent no. 3 is also on record which has been issued by Ghaziabad Authority valid w.e.f 31/08/2000 to 12/11/2006. Therefore, respondent no. 2 has failed to prove that the offending Tata 407 was not insured with it or that the respondent no. 3 was not holding a valid driving licence to drive the same. Issue no. 2 & 4 are decided against respondent no. 2 and in favour of petitioners. Issue no. 5 (Whether the petitioners are entitled to any compensation, if so from whom and of what amount?)
9. PW2, Sh. Taslimuddin, has stated in his affidavit Ex.PW2/X that he was father of deceased Mukhtiar Singh. After the accident his son was taken to GTB Hospital, Dilshad Garden, Delhi where his MLC No. 1894/06 was prepared and his son died due to the injuries caused in the accident. At the time of the accident his son was earning Rs. 8000/per month as he was a fruit and vegetable seller. The witness was crossexamined on behalf of respondent no. 2 but nothing could be brought forth so as to disbelieve the testimony of PW2. PW2 has deposed that all the eight petitioners were dependent upon the deceased but he also testified that he was working as a helper in his native village at the time of the accident. Petitioner no. 3 to 8 are the children of petitioner no. 1 & 2 and siblings of deceased Mukhtiar.
Petitioners have failed to prove that petitioner no. 3 to 8 were also dependent upon the deceased and not on petitioner no. 1. Petitioners have also not been able to prove that the deceased was earning Rs. 8000/per month as no income proof of the deceased was filed. Accordingly, loss of dependency is to be calculated as per minimum wages fixed by the government for an unskilled worker. On the date of the accident the minimum wages for an unskilled worker were Rs. 3271/per month and the annual dependency would be Rs. 39,252.
10. Applying the guidelines of the Hon'ble Supreme Court in the judgment reported as "Smt. Sarla Verma vs DTC 2009 AIR (SC) 3104", 50% is to be deducted towards personal expenses of the deceased. Thus, the remaining annual loss of dependency would be Rs. 19,626/(Rs. 39,252 - 19626 i.e 50% of Rs. 39252).
Page No. 5 of 20 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD / DELHI / 19.04.2017 Taslimuddin & Ors. Vs. Mahender Singh Saini & Ors. ID No. 15237/15
11. Ex. PW2/H is the copy of voter's I card of petitioner no. 1 showing his age as 51 years as on 01/01/94. On the day of the accident, his age would have been 63 years and 4 months. The photocopy of the ration card of the petitioners revealed that his age was 50 as on 03/05/98 and that of petitioner no. 2 as 47 years. On the day of the accident, their ages would have been 58 years and 55 years respectively. As there is lot of gap in the age of petitioner no. 1 as mentioned in the ration card and his voter's I card, therefore, the age of petitioner no. 2, mother of the deceased as 55 years is taken for calculating the multiplier. Applying the multiplier of 11, total amount towards loss of dependency would be Rs. 2,15,886/( Rs. 19626 X 11).
12. Besides this, petitioners are also entitled to non pecuniary damages under the following heads:
1. Loss of estate Rs. 10,000/
2. Love and affection Rs. 25,000/
3. Funeral expenses Rs. 7,000/ Thus, the total compensation would amount to Rs.2,57,886/ being rounded of to Rs. 2,57,900/ Liability
13. No doubt the deceased was travelling in a good vehicle but as per the insurance policy, the insurance policy covered risk of three passengers in the offending Tata 407.
Relief
14. Award is passed directing Respondent no. 2, United India Insurance Co. Ltd. to pay to petitioner no. 1 and 2 only a sum of Rs. 2,57,900/ along with interest @ 7.5% per annum from date of filing of the petition till date of realization.
15. Payment is to be made by depositing separate cross cheques in favour of petitioner no. 1 & 2. The respondent no. 2, insurance company is directed to deposit the award amount along with interest in UCO Bank, Karkardooma Branch, through Nodal Officer within thirty days from today in the saving account of the petitioners.
16. Cheques be deposited within thirty days here from under intimation to the petitioner no. 1 & 2. In case of default, further penal interest shall begin to accrue @ 12% p.a thereon, for each day default.
17. On the deposit of the award amount, the Branch Manager of UCO Bank, Karkardooma Branch is directed to prepare Fixed Deposit Receipts of 50% share of Page No. 6 of 20 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD / DELHI / 19.04.2017 Taslimuddin & Ors. Vs. Mahender Singh Saini & Ors. ID No. 15237/15 each petitioner for a period of three years and the balance amount be released to them.
18. The interest on fixed deposits shall be paid quarterly by automatic credit of interest in saving account of the petitioners.
19. The withdrawal from the aforesaid account shall be permitted to the petitioners after due verification and bank shall issue photo identity cards to the petitioners to facilitate their identities.
20. No cheque book shall be issued to the petitioner without the permission of the court.
21. The original FDRs shall be retained by the bank in safe custody. However, the original pass book shall be given to the petitioners along with photocopy of the FDRs.
22. The original FDRs shall be handed over to the petitioners on the expiry of the period of the FDRs.
23. No loan, advance, or withdrawal shall be allowed on the said FDRs without permission of the court.
24. On the request of the petitioners, the bank shall transfer the saving account to any other branch of State Bank of India, according to the convenience of the petitioners.
25. The petitioners shall furnish all the relevant documents for opening of saving bank account and FDRs to the Nodal Officer of the UCO Bank, KKD Courts, Delhi.
26. Attested copies of the award be furnished to the concerned parties and be also sent to the Nodal Officer, UCO Bank, KKD Branch, Delhi for compliance. File be consigned to record room."
2. APPLICATION UNDER ORDER IX RULE 13 R/W. SECTION 151 CPC MOVED BY DEFENDANT NO.2 UNITED INDIA INSURANCE COMPANY.
On 09.11.2012 defendant no.2 moved the abovesaid application for setting aside the exparte judgment / order dated 14.05.2012. Claimants filed reply to this application and vide order dated 20.07.2013 this application was dismissed.
3. Defendant No.2 United India Insurance Company challenged the abovesaid Page No. 7 of 20 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD / DELHI / 19.04.2017 Taslimuddin & Ors. Vs. Mahender Singh Saini & Ors. ID No. 15237/15 award and order dated 20.07.2013 in FAO No. 348/13 wherein the Hon'ble High Court of Delhi passed the following order: "ORDER 11.08.2014
1. By the present appeal the appellant impugns the Award dated 14.05.2012. It is averred that the claim petition was contested by the appellant by filing a written statement. It is further averred that in the written statement a plea was taken that the offending vehicle is not insured with them and that it appears that some fake and bogus policy has been placed on record. Thereafter, it is averred that the counsel for the appellant stopped appearing without any information to the appellant Company. Hence, an ex parte Award was passed against the appellant.
2. The present appeal is filed impugning the order dated 20.07.2013 by which the application of the appellant under Order IX Rule 13 CPC was dismissed by the Tribunal. The Tribunal was of the view that the appellant having participated in the proceedings, has filed the application almost one year after passing of the Award.
3. A perusal of the application under Order IX Rule 13 CPC filed by the appellant, certified copy of which has today been placed on record,. would show that the ex parte Award was passed on 14.05.2012. The appellant has in the application pointed out that they learnt about the ex parte Award only after they received a copy of the execution petition on 04.10.2012. The present application is dated 08.11.2012. It appears to have been filed on 09.11.2012.
4. Hence, in my view there is sufficient explanation for the delay in approaching the Tribunal for setting aside the ex parte Award.
5. The appellant has also shown sufficient cause for setting aside the ex parte Award in view of the averments in the application.
6. The ex parte Award is set aside subject to payment of costs of Rs.40,000/. The costs will be paid to respondents No.1 and 2 only equally i.e. Rs.20,000/ each on the first date fixed before the Tribunal.
7. As per the learned counsel for the appellant, they have to lead evidence of only one witness. In order not to delay the proceedings any further, the Tribunal will give only one opportunity to the appellant to lead their evidence. No adjournment would be granted on any request of the appellant or of the counsel for the appellant. The ex parte Award dated 14.05.2012 and order dated 20.07.2013 are set aside. The matter is remanded back to the Tribunal for fresh adjudication as provided herein. Parties to appear before the Tribunal on 09.09.2014.
Page No. 8 of 20 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD / DELHI / 19.04.2017 Taslimuddin & Ors. Vs. Mahender Singh Saini & Ors. ID No. 15237/15
8. The appeal stands disposed of.
9. As per order dated 06.09.2013 the appellant has deposited the entire Award amount before this Court. On showing proof of payment of costs to respondents no.1 and 2, the amount so deposited shall be refunded back to the appellant with accumulated interest, if any."
4. APPEARANCE ON BEHALF OF DEFENDANT NO.1 AND 3.
Upon notice having been issued to defendants no.1 and 3, on 02.06.2015 Mr. Anurag Kasana, Adv. appeared for defendant no.1 Mahender Singh and defendant no.3 Tikam Singh and filed his vakalatnama on behalf of these defendants.
5. EVIDENCE OF DEFENDANT NO.2.
Defendant No.2 examined R2W1 - Mr. Anil Anand, Asst. Manager, United India Insurance Company Ltd., Divisional Office No.1., 86, Hapur Road, Meerut, U.P.; R2W2 - Ms. Neetu Jagota, Administrative Officer, United India Insurance Co. Ltd., Divisional Office No.16, Kirti Palace, A1, Tagore Market, Kirti Nagar, Delhi 15; R2W3 - Sh. Komuo Daniel, Asst. Manager, Divisional Office No.1., 86, Hapur Road, Meerut, U.P. and R2W4 - Sh. Rakesh Taneja, Administrative Officer, United India Insurance Co. Ltd., Divisional Office No.16, Kirti Palace, A1, Tagore Market, Kirti Nagar, Delhi 15. Ld counsel for defendant no.2 closed RE on 28.05.2016.
6. ARGUMENTS I have heard Mr. Arun Sharma, Adv. for claimants and Mr. S. Ghosh, Adv. for defendant no.2. None has appeared to address final arguments on behalf of defendant no.1 and defendant no.3. Ld. counsel for claimants relied upon case law reported as Munna Lal Jain and Ors. Vs. Vipin Kumar Sharma and Ors. MANU/SC/0640/2015. Ld counsel for defendant no.2 relied upon case law reported as (i) National Insurance Co. Ltd. Vs. Kameshwar Prasad and Ors. 2005 (1) T.A.C. 53 (Jhar.); (ii) Darilian Page No. 9 of 20 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD / DELHI / 19.04.2017 Taslimuddin & Ors. Vs. Mahender Singh Saini & Ors. ID No. 15237/15 Passah Vs. Batriti Lyngdoh & Ors. 2011 (2) T.A.C. 786 (Gau.); (iii) The New India Assurance Co. Ltd. Vs. R. K. Arora & Ors. MAC. App. 99/2006 & CM Appl. 2219 2220/2006 passed by Hon'ble Mr. Justice R. K. Gauba, Judge Hon'ble High Court of Delhi and (iv) Umesh Ganesh Deshpande Vs. M/s. Balaji Carriers and Ors. 2005 (1) T.A.C. 152 (Bom.). In his very short submissions ld. counsel for claimants submitted that only grievance he is having qua award dated 14.05.2012 is that multiplier should have been taken as per age of the deceased in view of case law relied upon by him. And ld. counsel for defendant no.2 submitted that defendant no.2 deserves exoneration inasmuch as policy Mark - A is fake / bogus. I have gone through the material available on judicial file carefully.
7. Here claim petition was originally filed by claimants against defendant no.1 - Mahender Singh Saini (Owner) and defendant no.2 - United India Insurance Co. Ltd., Kachehari Road, Meerut, (U.P.).
Vide order dated 01.04.2008 defendant no.1 stood served by way of publication in 'Veer Arjun' dated 14.02.2008 for 01.04.2008 but none came present or appeared for defendant no.1. Hence defendant no.1 was proceeded against as ex party.
WS stood filed on behalf of defendant no.2 on 14.05.2007. Vide order dated 10.12.2010 defendant no.3 - Teekam Singh @ Pintoo (Driver) was impleaded as party to these proceedings. As per order dated 17.11.2011 defendant no.3 had not appeared despite service by way of publication and none was appearing for defendant no.2 since last 4 / 5 dates and, thus, defendants no.2 and 3 were also proceeded against as exparty. However, on 01.03.2012 an application was moved by Sh. H. N. Vashisht, Adv. for defendant no.2 for setting aside exparty order and said application was allowed in the interest of justice.
Claimants examined PW1 Ranjit Singh on 23.08.2010; PW2 Taslimuddin Page No. 10 of 20 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD / DELHI / 19.04.2017 Taslimuddin & Ors. Vs. Mahender Singh Saini & Ors. ID No. 15237/15 (on 01.03.2012) who was cross examined by ld. counsel for defendant no.2 and PW3 Md. Najim on 04.04.2012. PW1 Ranjit and PW3 Mohd. Najim were not cross examined by ld. counsel for defendant no.2 as none appeared for defendant no.2 on the dates on which PW1 Ranjit Singh and PW3 Mohd. Najim were examined. No evidence was led by defendant no.2 due to its non appearance on the dates of hearing after 01.03.2012 till the passing of award dated 14.05.2012. Defendants no.1 and 3 were exparty throughout the proceedings which culminated in passing of award dated 14.05.2012 due to their nonappearance after service through publication. IT WAS IN THESE CIRCUMSTANCES THAT AWARD DATED 14.05.2012 WAS HAPPEND TO BE PASSED.
Defendant no.2 moved an application under order IX Rule 13 r/w. 151 CPC for setting aside the exparty award dated 14.05.2012. The same was dismissed vide order dated 20.07.2012. Defendant no.2 challenged the exparty award dated 14.05.2012 and order dated 20.07.2012 before the Hon'ble High Court of Delhi. The Hon'ble High Court of Delhi set aside the award dated 14.05.2012 and order dated 20.07.2013 and directed that tribunal will give only one opportunity to the appellant / defendant no.2 to lead its evidence. Thus, defendant no.2 examined 4 witness as mentioned in para. 5 of this award. Defendants no.1 and 3 appeared through Mr. Anurag Kasana, Adv. on 02.06.2015 but they neither filed any WS nor led any evidence. Infact after 02.06.2015 neither the defendants no.1 and 3 nor their counsel appeared before the court.
Only change in circumstances / development that has taken place after the passing of award dated 14.05.2012 is that defendant no.2 - United India Insurance Co. Ltd. has led evidence as detailed above in para. 5 of this award. THUS, IN MY CONSIDERED OPINION IN THIS BACKGROUND AND ALSO KEEPING IN VIEW THE SUBMISSIONS MADE BY LD. COUNSEL FOR CLAIMANTS AND Page No. 11 of 20 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD / DELHI / 19.04.2017 Taslimuddin & Ors. Vs. Mahender Singh Saini & Ors. ID No. 15237/15 DEFENDANT NO.2, there is no need to disturb the findings of ld. predecessor of this court vide award dated 14.05.2012 except qua issue no.4, 5 and 6. HENCE, FINDING ON ISSUE NO.1, 2 AND 3 AS OBSERVED IN AWARD DATED 14.05.2012 ARE HEREBY REITERATED.
8. I PROCEED TO DECIDE ISSUE NO. 4, 5 AND 6 AFRESH AS UNDER: ISSUE NO.4:
Whether the above mentioned vehicle was not insured with R2 and if so, to what effect? OPR2.
While deciding issue no.4 vide award dated 14.05.2012 ld. predecessor of this court observed that, ".....The insurance cover note of the vehicle is also on record and the name of the insured has been shown as Sh. Mahender Singh Saini. The insurance policy was valid w.e.f 15/11/05 to 14/11/06. The accident had occurred on 12/05/06. Therefore, the Tata 407 had a valid insurance policy on the day of the accident but the vehicle has been registered as a light goods vehicle. The said insurance policy covers the 3rd party risk for goods weighing upto 5300 kg and 3 passengers. The driving licence of the respondent no. 3 is also on record which has been issued by Ghaziabad Authority valid w.e.f 31/08/2000 to 12/11/2006. Therefore, respondent no. 2 has failed to prove that the offending Tata 407 was not insured with it or that the respondent no. 3 was not holding a valid driving licence to drive the same.....".
At the time of passing of award dated 14.05.2012 no evidence was led by defendant no.2 as none appeared for defendant no.2 after 04.04.2012, on which date ld. counsel for claimants closed claimant's evidence and matter was adjourned to 30.04.2012 for defendant's evidence/final arguments. NOW after the setting aside of award dated 14.05.2012 defendant no.1 (Owner) has neither filed WS/pleadings qua the insurance policy nor had led any evidence to prove the insurance policy on record Page No. 12 of 20 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD / DELHI / 19.04.2017 Taslimuddin & Ors. Vs. Mahender Singh Saini & Ors. ID No. 15237/15 but defendant no.2 has examined 4 witnesses out of which relevant / material witnesses have deposed as under: "R2W3 Sh. Komuo Daniel, Asst. Manager, United India Co. Ltd., Divisional Office No. 1, 86, Hapur Road, Meerut, U.P. On SA Today I have brought the office copy of notice u/o 12 rule 8 CPC dated 07/05/2016 issued by our counsel upon the driver and owner of vehicle bearing no. UP 15G 3936 calling upon them to produce the original cover note bearing no. 63460 dated 15/11/2006 claimed by them to have been issued by our company to insure the vehicle no. UP 15G 3936. A copy of said notice has also been issue upon the counsel for driver and owner. The office copy of the notice is exhibited as Ex.
R2W3/1.(colly, 2 pages). The original registry slips / postal receipts are exhibited as Ex. R2W3/2 to R2W3/8. The return envelopes are exhibited as Ex. R2W3/9 to R2W3/11. I have also brought the attested copy of directory of all our company's offices located at Meerut and the same is exhibited as Ex. R2W3/12 (colly 3 sheets). As per the said directory, our Divisional Office 1, Meerut is located at 86, Hapur Road, Near Eve's Chopla, Meerut. Our Divisional Office 2 is located at 174/1, H.K. House, Delhi Road, Meerut. Our Micro Offices under the Divisional Office at Meerut are located at Kharkhoda, Mawana and Parikshit Garh. We do not have any office located at Kacheri Road, Meerut as mentioned at point A of document mark A. I have also brought the attested copy of the register containing the record of issuance of cover notes by our divisional office for the period 27/10/2005 to 20/12/2005. As per the said register, the cover notes which have been issued by our office bears the serial number from 101101 dated 27/10/2005 to serial number 103800 dated 20/12/2005 and the same is exhibited as Ex. R3W3/13 (colly, 3 pages). This is a continuous series and as per our record, we have not issued the cover note bearing no. 63460 marked at point B of document mark B valid for the period from 15/11/2005 to 14/11/2006, the validity period marked at point C of document mark A. The document mark A is a fake cover note as per our office record and we have no liability in the present case.
XXXX by Sh. P.S.Verma, ld. counsel for the petitioner The cover note bearing no. 63460 being document mark A has not been issued by our office.
Q: I put to you whether this cover note bearing serial no. 63460 was issued to your office at any point of time?
Page No. 13 of 20 (ANAND SWAROOP AGGARWAL)
PO - MACT / NE / KKD / DELHI / 19.04.2017
Taslimuddin & Ors. Vs. Mahender Singh Saini & Ors. ID No. 15237/15
Ans:No.
Q: I put to you as to how do you say that the document mark A is a fake cover note?
Ans: Firstly, the address stamp showing the issuance office mentioned on document mark A does not pertain to our office. Secondly, when we put the date of issuance on the cover note , the effective date and commencement of insurance for the purpose of the act is from that date for a period of one year. In the document mark A, the date of issuance of cover note is 15/11/2006 which is marked at point D and the same is one year after the date of commencement of the policy and after the expiry of the cover note mark A on 14/11/2006.
I cannot say as to who commits manipulation of cover notes. XXXXX by respondent no. 1 and 3.
Nil. Opportunity given."
"R2W4 Sh. Rakesh Taneja, Administrative Officer, United India Insurance Co. Ltd., Divisional Office No. 16, Kirti Palace, A1, Tagore Market, Kirti Nagar, Delhi - 15.
On SA The notice u/o 12 rule 8 CPC issued by our counsel upon the driver and owner of vehicle bearing no. UP 15G 3936 and also their counsel calling upon them to produce the original cover note number 63460 dated 15/11/2006 claimed by them to have been issued by our company to insure the vehicle no. UP 15G 3936 is already Ex. R2W3/1. Today I have brought the original docket containing the record of issuance by our office of cover note bearing no. 0063460 dated 01/03/2005 issued for New Bajaj Discover Bike vehicle having engine no. 25482 and chassis number 25476 in the name of Sh. Ram Kapoor R/o 5623, South Basti, Harphool Singh Sadar Bazar, Delhi - 6 and subsequent policy bearing no. 221600/31/04/10788 issued for the same vehicle bearing registration no. DL 4S AQ 8749, receipt showing detail of policy numbers issued through our dealer, M/s. Royal Automobiles and the same are exhibited as Ex. R2W4/1 (colly, 5 pages) (OSR). The cover note bearing no. 63460 dated 15/11/2006 which is marked as mark A, is a fake cover note as per our record and has not been issued by our company. Insurance co. does not have any liability in the present case.
Xxxx by Sh. P.S. Verma, Ld. counsel for the petitioner.
It is wrong to suggest that M/s. Royal Automobiles has issued the fake cover note bearing no. 63460 in the present case. M/s. Royal Automobiles has deposited the carbon copy of cover note bearing no.
Page No. 14 of 20 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD / DELHI / 19.04.2017 Taslimuddin & Ors. Vs. Mahender Singh Saini & Ors. ID No. 15237/15
63460 in our office and on the basis of the same we have issued the policy bearing no. 221600/31/04/10788 in the name of Sh.Ram Kapoor for the period 01/03/2005 to 28/02/2006 which is already exhibited as Ex. R2W4/1 at page no. 1 to 4.
XXXXX by respondent no. 1 and 3.
Nil. Opportunity given."
The depositions made by abovesaid witnesses examined by defendant no.2 to prove that insurance policy Mark 'A' is fake/bogus have gone unrebutted inasmuch as defendants no.1/3 have opted not to attend the court proceedings and crossexamine these witnesses. FIRSTLY, there being no pleadings of defendant no.1/3 qua the insurance policy Mark A. SECONDLY, no evidence has been led by defendants no.1/3 to prove the genuinenesses of insurance policy Mark A. THIRDLY, depositions made by witnesses examined by defendant no.2 to prove that insurance policy Mark A is fake/bogus are duly supported by possible documentary evidence and have gone unrebutted qua defendant no.1/3. Claimants have led no evidence to controvert the depositions made by witnesses examined by defendant no.2. In the totally of facts and circumstances of this case I find no reason to disbelieve the deposition made by witnesses examined by defendant no.2 and hold that defendant no.2 has been successful in discharging onus regarding issues no.4. ISSUE NO.4 IS DECIDED IN FAVOUR OF DEFENDANT NO.2.
ISSUE NO.5 Whether the petitioners are entitled to any compensation, if so from whom and of what amount?
Quantum of compensation awarded vide award dated 14.05.2012 has been put to challenge by ld. counsel for claimants solely on the ground that multiplier ought to have been used on the basis of age of deceased rather than that of the mother of the deceased. Reliance has been placed on case law reported as Munna Lal Jain & Page No. 15 of 20 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD / DELHI / 19.04.2017 Taslimuddin & Ors. Vs. Mahender Singh Saini & Ors. ID No. 15237/15 Ors. Vs. Vipin Kumar Sharma & Ors. (supra), which is a three judges bench decision. It is noteworthy that three Judges bench in U.P. State Road Transport Corporation and Ors. Vs. Trilok Chandra & Ors. (1996) 4 SCC 362 has held that, "18... Besides the selection of multiplier cannot in all cases be solely dependent on the age of the deceased. For example, if the deceased, a bachelor, dies at the age of 45 and his dependents are his parents, age of parents would also be relevant in the choice of the multiplier....". The said view of three judges bench has not as yet been overruled by any larger bench of Judges of the Hon'ble Supreme Court of India. Also Hon'ble Delhi High Court in MAC. APP. 107/2013 titled as National Insurance Co. Ltd. Vs. Jerald Samuel Soleman & Ors. decided on 06.05.2016 has held that loss of dependency has to be calculated on the basis of age of the deceased or the claimants whichever is higher. Hon'ble High Court has relied upon a good no. of Supreme Court cases while holding so including U.P.S.R.T.C Vs. Trilok Chandra (supra.). Law as regards selection of multiplier where deceased is a bachelor and claimants are his parents has been discussed in great length in case law National Insurance Co. Ltd. Vs. Savita Sharma & Ors. MANU/DE/1473/2015, wherein it has been observed as under : "33. Also, in Union of India & Ors. Vs. S. K. Kapoor, MANU/SC/0246/2011: (2011) 4 SCC 589, while holding that the decision of the Coordinate Bench is binding on the subsequent Bench of equal strength, it was held that the Bench of Coordinate strength can only make a reference to a larger Bench. .............................. ." "34. Thus, in view of this, the three Judge Bench decision in Trilok Chandra (supra), later reiterated in the three Judge Bench decision of New India Assurance Co. Ltd. vs. Shanti Pathak (supra), shall be taken as a binding precedent. The Multiplier will be as per the age of the deceased or the claimant whichever is higher."
THUS it is held that ld. predecessor of this Court committed no mistake while applying multiplier as per age of mother of deceased. Thus, loss of dependency would be ₹2,15,886/ as calculated vide award dated 14.05.2012.
Page No. 16 of 20 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD / DELHI / 19.04.2017 Taslimuddin & Ors. Vs. Mahender Singh Saini & Ors. ID No. 15237/15
HOWEVER as per three Judges Bench decision of the Hon'ble Supreme Court in Rajesh & Ors. Vs. Rajbir Singh & Ors. MANU/SC/0480/2013 it is now well settled that legal representatives are entitled to a sum of ₹1,00,000/ towards loss of love and affection, ₹25,000/ towards funeral expenses and ₹10,000/ towards loss of estate. Claimants no. 1 & 2 are held to be entitled to nonpecuniary damages as under :
(i) Loss of estate : 10,000/
(ii) Love and affection : 1,00,000/
(iii) Funeral Expensive : 25,000/ Thus, total compensation would amount ₹3,50,886/. LIABILITY:
As defendant no.2 has been able to discharge the onus regarding issue no.4, no liability can be fastened on defendant no.2. Thus, defendants no.1 and 3 are jointly and severally liable to pay compensation, as abovesaid, to the claimants no.1 &
2. ISSUE NO. 5 IS DECIDED ACCORDINGLY.
ISSUE NO.6: RELIEF Award is passed directing defendant no. 1 and 3 to pay, jointly and severally, to claimants no.1 and 2 (whose shares shall be equal) only a sum of ₹3,50,886/ along with interest @ 9% per annum from date of filing of the claim petition (i.e. 19.07.2006) till date of its realization. Payment is to be made by depositing, under intimation to claimants no.1 and 2, separate cross cheques inclusive of interest in favour of claimants no. 1 & 2 with this court within 30 days from today. If award is not complied by defendants no.1 and 3, jointly and severally, within 30 days defendants no.1 and 3 shall be liable to pay interest @ 12% p.a. on the default amount for the default period.
Page No. 17 of 20 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD / DELHI / 19.04.2017 Taslimuddin & Ors. Vs. Mahender Singh Saini & Ors. ID No. 15237/15 Put up for compliance on 20.05.2017.
9. Attested copies of the award be furnished to the concerned parties for compliance. Also certified copy of the award be sent to DLSA and ld. MM.
10. FormIV to the MCTAP is attached herewith as Annexure - A.
11. File be consigned to record room.
Pronounced in Open Court on 19.04.2017
(ANAND SWAROOP AGGARWAL)
PO - MACT / NE / KKD COURTS / DELHI
Page No. 18 of 20 (ANAND SWAROOP AGGARWAL)
PO - MACT / NE / KKD / DELHI / 19.04.2017
Taslimuddin & Ors. Vs. Mahender Singh Saini & Ors. ID No. 15237/15
Annexure A
FORM - IV
COMPLIANCE OF THE PROVISIONS OF THE MODIFIED CLAIMS TRIBUNAL AGREED PROCEDURE TO BE MENTIONED IN THE AWARD
1. Date of accident 12.05.2006
2. Date of intimation of the accident by the Investigating Not applicable as date of accident being Officer to the Claims Tribunal. (Clause 2) prior to 12.12.2014.
3. Date of intimation of the accident by the Investigating do Officer to the Insurance Company. (Clause 2)
4. Date of filing of Report under Section 173 Cr. P. C. do before the Metropolitan Magistrate. (Clause 10)
5. Date of filing of Detailed Accident Information Report do (DAR) by the Investigating Officer before Claims Tribunal. (Clause 10)
6. Date of service of DAR on the Insurance Company do (Clause 11)
7. Date of service of DAR on the claimant(s) (Clause 11) do
8. Whether DAR was complete in all respects? (Clause do
16)
9. If not, state deficiencies in the DAR do
10. Whether the police has verified the documents filed do with DAR (Clause 4)
11. Whether there was any delay or deficiency on the part do of the Investigating Officer? If so, whether any action / direction warranted?
12. Date of appointment of the Designated Officer by the do Insurance Company. (Clause 19)
13. Name, address and contact number of the Designated do Officer of the Insurance Company. (Clause 19)
14. Whether the Designated Officer of the Insurance do Company submitted his report within 30 days of the DAR? (Clause 21)
15. Whether the Insurance Company admitted the do liability? If so, whether the Designated Officer of the Page No. 19 of 20 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD / DELHI / 19.04.2017 Taslimuddin & Ors. Vs. Mahender Singh Saini & Ors. ID No. 15237/15 Insurance Company fairly computed the compensation in accordance with law.
(Clause 22)
16. Whether there was any delay or deficiency on the part do of the Designated Officer of the Insurance Company? If so, whether any action / direction warranted?
17. Date of response of the claimant(s) to the offer of the do Insurance Company. (Clause 23)
18. Date of the award 19.04.2017
19. Whether the award was passed with the consent of the No. parties? (Clause 22)
20. Whether the claimant(s) examined at the time of No. Award has been passed against passing of the award to ascertain his / their financial private persons and case being old case condition? (Clause 26) examination exempted so that awarded amount as and when recovered may be released to claimants for their instant benefit. Also awarded amount is not substantial.
21. Whether the photographs, specimen signatures, proof No. Reasons as abovesaid of residence and particulars of bank account of the injured / legal heirs of the deceased taken at the time of passing of the award? (Clause 26)
22. Mode of disbursement of the award amount to the Award has been passed against private claimant(s). (Clause 28) persons and case being old case examination exempted so that awarded amount as and when recovered may be released to claimants for their instant benefit. Also awarded amount is not substantial.
23. Next Date of compliance of the award. 20.05.2017 (Clause 30) (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD COURTS / DELHI Page No. 20 of 20 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD / DELHI / 19.04.2017