Delhi District Court
Smt. Asagari Khatoon vs Mushraf Ali & Ors. Page No. 1 Of 46 on 20 October, 2014
IN THE COURT OF MS. GEETANJLI GOEL, PO: MOTOR ACCIDENT
CLAIMS TRIBUNAL2, PATIALA HOUSE COURTS, NEW DELHI
Suit No.28/14
Date of Institution: 17.10.2012
IN THE MATTER OF:
1. Smt. Asagari Khatoon
W/o Shri Moinuddin
2. Shri Moinuddin
S/o Shri Md. Fajale Haque
Permanent Address: Village Majhaul
Anchal Nauhatta
District Saharsa
Bihar.
Also at:
A55, Sarai Kale Khan
Near Ishak Masjid
New Delhi13. ...Petitioners
SUIT No.31/14
Date of Institution: 17.10.2012
IN THE MATTER OF:
Md. Dilshad Ahamad
S/o Md. Hashim
A55, Sarai Kale Khan
Near Ishak Masjid
New Delhi 110013. ...Petitioner
Suit no.28/14, 31/14
Asgari Begum & Ors. Vs. Mushraf Ali & Ors. Page no. 1 of 46
Versus
COMMON RESPONDENTS
1. Shri Mushraf Ali
S/o Shri Meer Rajjab Ali
Village Majhaul
PO Sahpur Nauhatta,
District Saharsa
Bihar. (Driver/Owner/Insured)
2. Bajaj Allianz General Insurance Co. Ltd.
Through its Manager
IInd Floor, DLF Building
Near Moti Nagar Metro Station
Moti Nagar
New Delhi. (Insurer) ...Respondents
Final Arguments heard : 19.09.2014
Award reserved for : 20.10.2014
Date of Award : 20.10.2014
AWARD
1. Vide this judgmentcumaward, I proceed to decide two petitions filed
u/s 166 and 140 of Motor Vehicle Act, 1988, as amended uptodate
(hereinafter referred to as the Act) for grant of compensation arising out of the
same road accident.
Suit no.28/14, 31/14
Asgari Begum & Ors. Vs. Mushraf Ali & Ors. Page no. 2 of 46
2. It is the case of the petitioners that on 27.06.2011 the deceased Md.
Rajiuddin along with Md. Dilshad Ahamad and other family members was
travelling in Tempo No.BR 11 TC 4196 and was proceeding from his village
Majhaul to Railway Station for boarding the train for Delhi. It is averred that the
Tempo driver was driving the vehicle in a rash and negligent manner and at a
fast speed and when the vehicle reached near Sihol Chowk, the driver lost the
control over it and the vehicle turned turtle due to which the deceased and Md.
Dilshad Ahamad sustained multiple grievous injuries and the deceased and
Md. Dilshad Ahamad along with other copassengers were removed to Sadar
Hospital, Saharasa, Bihar, where the deceased was declared brought dead. It
is stated that the accident had taken place only due to the rash and negligent
driving of the respondent No.1. It is stated that in respect of the accident FIR
No.60/11 under Sections 279/304A/337/338 IPC was registered at PS Sadar
Vihra, District Saharsa, Bihar. It is averred that the respondent No.1 is the
driver / owner / insured and the respondent No.2 is the insurer of the offending
vehicle, hence, both the respondents are severally or jointly liable to pay the
compensation to the petitioners.
FACTS OF SUIT No.28/14
3. It is stated that the deceased Md. Rajiuddin was a young boy of 23 years of age and was unmarried. It is averred that he was running his own parchoon shop and was selfemployed and was earning Rs.10,000/ p.m. It is Suit no.28/14, 31/14 Asgari Begum & Ors. Vs. Mushraf Ali & Ors. Page no. 3 of 46 averred that the petitioners had incurred about Rs.30,000/ on cremation. It is prayed that an amount of Rs.15,00,000/ be awarded as compensation in favour of the petitioners and against the respondents in respect of the loss of love and affection, loss of future prospects, loss of income, pecuniary and non pecuniary loss and mental pain and agony suffered by the petitioners due to the untimely and premature death of the deceased.
FACTS OF SUIT No.31/14
4. It is stated that the petitioner Md. Dilshad Ahamad is a young man of about 35 years of age. It is averred that he was running a Coaching Centre and was selfemployed and was earning Rs.3,00,000/ p.a. It is averred that the petitioner had sustained multiple grievous injuries as fracture laus ple and multiple abrasions and he remained under treatment for about 6 months and had incurred about Rs.30,000/. It is averred that the accident had ruined his life as he had become a permanently disabled person for whole of the life. It is prayed that an amount of Rs.5,00,000/ be awarded as compensation in favour of the petitioner and against the respondents.
5. Respondent No.1 had filed the reply taking the preliminary objections that the petitioners have not come to the court with clean hands and have suppressed the material facts. It is averred that the petitioner Md. Dilshad Ahamad is contract teacher in Bihar Government and posted at Urdu Karmik Suit no.28/14, 31/14 Asgari Begum & Ors. Vs. Mushraf Ali & Ors. Page no. 4 of 46 Vidyalaya, Paraswanna, Nauhatta, Saharsa, Bihar and is drawing salary of a sum of Rs.6,000/ per month. It is averred that the petitioners have no cause of action against the respondent No.1 because no accident had been caused due to the rash and negligent driving on the part of the respondent No.1 and it was the driver of another vehicle who was plying the vehicle in a very rash and negligent manner at a very high speed and consequently, the accident had been caused/ occurred and meanwhile, the respondent No.1 was passing from there and had been falsely implicated in the said accident. It is averred that the amount of compensation as claimed by the petitioners is highly excessive, exorbitant and has been calculated in an arbitrary manner, without following the Motor Vehicle Act and Rules. The averments made in the claim petition were denied. It is averred that there was no negligence on the part of the respondent No.1 and no accident had ever been caused by the respondent No.1 and the alleged accident had been caused by an unknown vehicle but to extract money from the respondents the petitioners implicated the respondent No.1 in false case of the said accident.
6. Written statement was filed on behalf of the respondent No.2 taking the preliminary objections that all the material allegations made in the petition are false and the petition is not maintainable either on facts or in law against the respondent No.2. It is averred that the liability of the respondent No.2, if any, is as per the terms and conditions and exceptions of the valid insurance policy and as per the provisions of The Motor Vehicle Act and Insurance Act. It is Suit no.28/14, 31/14 Asgari Begum & Ors. Vs. Mushraf Ali & Ors. Page no. 5 of 46 averred that the respondent No.2 is not liable to pay any amount of compensation in case it is held that the driver of the insured vehicle No. BR11TC4196 was not holding a valid and effective driving license at the time of the alleged accident and the respondent No.1 / insured had violated the terms and conditions of the insurance policy while driving the insured vehicle without holding a valid and effective driving license. It is averred that the respondent No.2 shall have no liability in case it is held that the insured vehicle was not having a valid and effective permit, fitness issued by the concerned transport authority. The averments made in the claim petition were denied. It is averred that the respondent No.1 got his vehicle No.BR11TC4196 insured by alleging himself to be the owner of the vehicle. It is stated that the vehicle No.BR11TC4196 was insured in the name of the respondent No.1 Shri Mushraf Ali vide policy No.OG122445180300000443 issued for the period 18.05.2011 to 17.05.2012. However, the liability of the respondent No.2 is subject to the terms and conditions of the insurance policy as well as to the provisions of the Motor Vehicle Act. It is denied that the accident took place due to the sole negligence on the part of the respondent No.1. It is averred that the relief claimed by the petitioners is highly exorbitant, illegal and without any basis.
7. The present suits No.28/14 and 31/14 were consolidated for the purpose of trial and decision as they arise out of the same accident vide order dated 26.9.2013 of my learned predecessor and it was directed that the Suit no.28/14, 31/14 Asgari Begum & Ors. Vs. Mushraf Ali & Ors. Page no. 6 of 46 present suit No.28/14 will be the lead case wherein the evidence would be recorded. From the pleadings of the parties, the following issues were framed vide order dated 26.09.2013 of my learned predecessor:
1. Whether the deceased Mohd. Rajiuddin and injured Mohd. Dilshad Ahmed sustained injuries in the accident which occurred on 27.06.2011 near Sihol Chowk, PS Vihra, District Saharasa, Bihar caused by rash and negligent driving of vehicle No.BR11TC4196 driven & owned by respondent no.
1 and insured with respondent no.2? OPP
2. Whether the petitioners are entitled for compensation? If so, to what amount and from whom?
3. Relief.
An application under Section 170 MV Act was filed on behalf of the insurance company which was allowed vide order dated 6.2.2014.
8. On behalf of the petitioners, the petitioner No.2 Shri Moinuddin entered into the witness box as PW1 and led his evidence by way of affidavit which is Ex.PW1/A reiterating the averments made in the claim petition. He stated that at the time of the accident his son Rajiuddin was aged about 23 years and he was doing the work in his own Kiryana Shop and was earning about Rs. 10,000/ per month. He deposed that his son left behind the petitioner No.2 himself as father, aged about 53 years, petitioner No.1 Smt. Asgari Khatoon as mother aged about 49 years and there was no other legal heir of the Suit no.28/14, 31/14 Asgari Begum & Ors. Vs. Mushraf Ali & Ors. Page no. 7 of 46 deceased. He stated that the future of his son was bright and due to the sudden death of his son their all hopes were destroyed. He stated that he had suffered great mental pain and mental agony, loss of dependency, loss of pecuniary and non pecuniary, loss of income, loss of love and affection due to the sudden and untimely demise of his son. Certified copy of criminal case record of FIR No.60/11 PS Sadar Vihra is Ex.PW1/1, copy of ID Cards is Ex.PW1/2 (colly) and of death certificate is Ex.PW1/3.
9. Md. Dilshad Ahmed was examined as PW2 who led his evidence by way of affidavit which is Ex.PW2/A reiterating the averments made in the claim petition. He stated that he was diagnosed by the doctors i.e. injury alleged to RTA, Fracture (L) Patella etc. He remained admitted from 27.06.2011 to 28.06.2011 in Sadar Hospital Saharsa, Bihar and remained as an outdoor patient for about one year. He stated that at the time of the accident he was 35 years and was working in a Coaching Centre and his income was Rs. 3,00,000/ per annum. Due to the accident, he could not do his work for about one year and doctors also advised him complete bed rest for six months. He stated that due to the accident, he became permanent disabled person and he was unable to do his daily routine work. He stated that he had not received his disability certificate from any government hospital. He stated that he had spent about Rs.75000/ on medical treatment and Rs.35,000/ on special diet, Rs. 20,000/ on conveyance, Rs.25000/ on attendant, on physiotherapy Rs. 30,000/ were spent and future expenses of Rs.50,000/. He stated that due to Suit no.28/14, 31/14 Asgari Begum & Ors. Vs. Mushraf Ali & Ors. Page no. 8 of 46 the accident he had suffered great mental pain and agony, financial problem, loss of pecuniary and non pecuniary, loss of social activities as well as marriage prospects and his future became in darkness. He stated that police recorded his statement. Original medical bills, discharge slips, OPD Cards and Xray report, copy of income proof, copy of Election I Card, copy of FIR and copy of educational documents of the petitioner are Ex.PW2/1 to Ex.PW2/6. PE was closed on 6.2.2014.
10. Ms. Seema Sehrawat, Senior Executive (Legal), Bajaj Allianz General Insurance Company Limited was examined as R2W1 on behalf of the respondent No.2 and she led her evidence by way of affidavit which is Ex.R2W1/A. She stated that the vehicle No.BR 11TC 4196 (passenger carrying tempo) was insured with the respondent No.3 (ought to be respondent No.2) company vide policy No.0G122445180300000443 issued for the period 18.05.2011 to 17.05.2012 in the name of respondent No.1 Shri Musharaf Ali. Copy of the insurance policy is Ex.R2W1/1. She stated that the respondent No.2 insurance company sent notice dated 13.02.2014 under Order 12 Rule 8 CPC through its counsel to the respondent No.1, insured asking him to produce the original insurance policy and copy of permit valid and effective as on the date of accident qua the vehicle in question. Copy of the notice dated 13.02.2014 is Ex.R2W1/2 and its postal receipt is Ex.R2W1/3. She stated that inspite of sending the notice under Order 12 Rule 8 of CPC by the respondent No.2 Insurance Company, the respondent No.1 had not produced the copy of Suit no.28/14, 31/14 Asgari Begum & Ors. Vs. Mushraf Ali & Ors. Page no. 9 of 46 the permit. She stated that the said notice had not been returned back undelivered and the respondent No.1 had also not sent any reply to the notice of the respondent No.2 and accordingly an adverse inference was liable to be taken against the respondent No.1 that the insured vehicle No.BR 11 TC 4196 was not having a valid and effective permit as required under the law. She stated that the respondent No.1 was driving the insured vehicle without having a valid and effective permit and had thus violated the terms and conditions of the insurance policy as well as the provisions of Motor Vehicle Act, as the insured vehicle was not having a valid and effective permit. She stated that in view of the said violations the insurance company has no liability to indemnify the respondent No.1 or to pay any amount of compensation to the petitioners. She was not crossexamined on behalf of the petitioners and the respondent No.1. It was stated by the learned counsel for the respondent No.1 that no RE was to be led. RE was closed on 3.7.2014.
11. I have heard the Learned Counsel for the petitioners as well as the Learned Counsels for the respondents and perused the record. The petitioners were also examined on 24.7.2014 in terms of the judgment of the Hon'ble High Court on 11.1.2013 in MACA No.792/2006 titled Oriental Insurance Co. Ltd. v. Ranjit Pandey and Ors.
12. My findings on the specific issues are as under:
Suit no.28/14, 31/14 Asgari Begum & Ors. Vs. Mushraf Ali & Ors. Page no. 10 of 46 Issue No. 1
13. As the petition has been filed U/s 166 M.V Act it was incumbent upon the petitioners to prove that the deceased/ injured sustained injuries in an accident caused due to rash and negligent driving by the driver of the offending vehicle. To determine the negligence of the driver of the offending vehicle it has been held in National Insurance Company Ltd. vs Pushpa Rana & Another 2009 Accident Claims Journal 287 as follows:
"The last contention of the appellant insurance company is that the respondents/claimants should have proved negligence on the part of the driver and in this regard the counsel has placed reliance on the judgment of the Hon'ble Apex Court in Oriental Insurance Company Ltd. V. Meena Variyal (supra). On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced: (i) certified copy of the criminal record of criminal case in FIR No.955 of 2004, pertaining to involvement of offending vehicle (ii) criminal record showing completion of investigation of police and issue of charge sheet under sections 279/304A, Indian Penal Code against the driver;
(iii) certified copy of FIR, wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of deceased.
These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under the Motor Vehicle Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Hence, this contention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on part of the driver."
Suit no.28/14, 31/14 Asgari Begum & Ors. Vs. Mushraf Ali & Ors. Page no. 11 of 46 It is established law that in a claim petition under Motor Vehicle Act, the standard of proof to establish rash and negligent driving by the driver of the offending vehicle is not at par with the criminal case where such rashness and negligence is required to be proved beyond all shadow of reasonable doubt. In Kaushnamma Begum and others v. New India Assurance Company Limited, it was inter alia held by the Hon'ble Supreme Court that the issue of wrongful act or omission on the part of the driver of the motor vehicle involved in the accident has been left to a secondary importance and mere use or involvement of motor vehicle in causing bodily injury or death to a human being or damage to property would make the petition maintainable under Sections 166 and 140 of the Motor Vehicle Act.
14. The case of the petitioners is that on 27.06.2011 the deceased Md. Rajiuddin along with Md. Dilshad Ahamad and other family members was travelling in Tempo No.BR 11 TC 4196 and was proceeding from his village Majhaul to Railway Station for boarding the train for Delhi. It was averred that the Tempo driver was driving the vehicle in a rash and negligent manner and at a fast speed and when the vehicle reached near Sihol Chowk, the driver lost the control over it and the vehicle turned turtle due to which the deceased and Md. Dilshad Ahamad sustained multiple grievous injuries and the deceased and Md. Dilshad Ahamad along with other copassengers were removed to Sadar Hospital, Saharasa, Bihar, where the deceased was declared brought dead. It was stated that the accident had taken place only due to the rash and Suit no.28/14, 31/14 Asgari Begum & Ors. Vs. Mushraf Ali & Ors. Page no. 12 of 46 negligent driving of the respondent No.1. It was stated that in respect of the accident FIR No.60/11 under Sections 279/304A/337/338 IPC was registered at PS Sadar Vihra, District Saharsa, Bihar. In para 2 of his affidavit Ex.PW1/A PW1 had reiterated the mode and manner of the accident as stated in the claim petition. Likewise in para 2 of his affidavit Ex.PW2/A PW2 had reiterated the mode and manner of the accident.
15. The petitioners have filed certified copies of the criminal record Ex.PW1/1 (colly) consisting of copy of charge sheet, copy of FIR No.60/11 under Sections 279/304A/337/338 IPC PS Vihra, Sadar, District Saharsa, Bihar, copy of tehrir, copy of DL of the respondent No.1, copy of RC of the offending vehicle, copy of certificate of temporary registration of the offending vehicle and copy of post mortem report. As per the FIR No.60/2011 under sections 279/337/338/304A IPC, PS Vihra, Sadar, District Saharsa the case was registered on the basis of complaint of Md. Dilshad Ahamad who is the petitioner in suit No.31/14 and has been examined as PW2 wherein he had stated the manner in which the accident took place. As per the charge sheet the driver of the offending vehicle Mushraf Ali respondent No.1 has been charge sheeted for the offence under sections 279/338/304A/337 IPC. In Basant Kaur and others v. Chattar Pal Singh and others 2003 ACJ 369 MP (DB) it was observed that registration of criminal case against the driver of the offending vehicle was enough to record a finding that the driver of the offending vehicle was responsible for causing the accident. Suit no.28/14, 31/14 Asgari Begum & Ors. Vs. Mushraf Ali & Ors. Page no. 13 of 46
16. The respondent No.1 had filed the written statement averring that the petitioners have no cause of action against the respondent No.1 because no accident had been caused due to the rash and negligent driving on the part of the respondent No.1 and it was the driver of another vehicle who was plying the vehicle in a very rash and negligent manner at a very high speed and consequently, the accident had been caused/ occurred and meanwhile, the respondent No.1 was passing from there and had been falsely implicated in the said accident. It was averred that there was no negligence on the part of the respondent No.1 and no accident had ever been caused by the respondent No.1 and the alleged accident had been caused by an unknown vehicle but to extract money from the respondents the petitioners implicated the respondent No.1 in false case of the said accident. However PW1 and PW2 were not crossexamined on behalf of the respondent No.1. During crossexamination by the learned counsel for the respondent No.2 PW1 admitted that he was not with his deceased son at the time of the accident and did not witness the accident. During crossexamination by the learned counsel for the respondent No.2 PW2 stated that there were 7 persons including children other than the driver in the tempo in which he was travelling. He stated that it was agreed to pay Rs.300/ for travelling from the village to the Railway Station by the tempo. He denied the suggestion that 15 persons were travelling in the tempo at that time. Thus PW1 admitted that he was not with his deceased son at the time of the accident and did not witness the accident and as such he was not an eye witness to the accident. PW2 was crossexamined on the number of persons Suit no.28/14, 31/14 Asgari Begum & Ors. Vs. Mushraf Ali & Ors. Page no. 14 of 46 travelling in the offending vehicle and he stated that there were 7 persons including children other than the driver in the tempo in which he was travelling and he denied the suggestion that 15 persons were travelling in the tempo at that time. Even nothing has been brought on record by the respondent No.2 to show that there were 15 persons travelling in the tempo at the time of the accident. The respondent No.1 who is the driver and owner of the offending vehicle has not adduced any evidence to dispute the version put forth by the petitioners or in the criminal record or to prove any other version of the accident. Further the criminal record has been placed on record which shows that the respondent No.1 has already been charged sheeted for the offence under Sections 279/338/304A/337 IPC. There is absolutely no evidence from the respondents to disprove the particulars of the accident or the involvement of vehicle No.BR11TC4196. The fact that the charge sheet is filed against the respondent No.1 and the respondent No.1 is facing criminal trial is also not disputed. In view of the testimony of the PWs and the documents on record which have remained unrebutted, the negligence of respondent No.1 has been prima facie proved.
17. It was stated that due to the vehicle turning turtle the deceased and Md. Dilshad Ahamad sustained multiple grievous injuries and the deceased and Md. Dilshad Ahamad along with other copassengers were removed to Sadar Hospital, Saharasa, Bihar, where the deceased was declared brought dead. The post mortem report in respect of the deceased Rajiuddin is on record as Suit no.28/14, 31/14 Asgari Begum & Ors. Vs. Mushraf Ali & Ors. Page no. 15 of 46 per which the cause of death was shock and haemmorhage due to the injuries mentioned. The medical papers in respect of the petitioner Md. Dilshad Ahamad are also on record. Thus it stands established that the petitioner Md. Dilshad Ahamad and the deceased Md. Rajiuddin had sustained injuries in the alleged accident. As such issue No.1 is decided in favour of the petitioners and against the respondents.
ISSUE No.2
18. Since issue No.1 has been decided in favour of the petitioners they would be entitled to compensation.
COMPENSATION IN SUIT No.28/14
19. The petitioners are the legal representatives of the deceased being the parents of the deceased Late Md. Rajiuddin. PW1 was crossexamined on the point of dependency and during crossexamination by the learned counsel for the respondent No.2 PW1 stated that he has six children other than the deceased. Two three are major and others are minors. He stated that some of them reside with him and some of them reside in Delhi. He denied the suggestion that he and his wife were solely dependent upon the deceased for their livelihood. He stated that two of his sons are working in Delhi. He stated that he does agricultural work and earns Rs.1000/ to 2000/ per month. He Suit no.28/14, 31/14 Asgari Begum & Ors. Vs. Mushraf Ali & Ors. Page no. 16 of 46 stated that he has less than one bigha land. Thus PW1 stated that he has six children other than the deceased and that two of his sons are working in Delhi. He stated that he does agricultural work and earns Rs.1000/ to 2000/ per month though he stated that he has less than one bigha land. During examination by the Tribunal the petitioner No.1 Ms. Asgari Khatoon stated that she is 50 years old at present. She stated that she is a housewife, and her deceased son was running a shop, and was earning Rs.10,000/ to Rs.12,000/ pm. She stated that apart from the deceased, she has six children and her eldest son who is elder to the deceased, was also working. The petitioner No. 2 Shri Moinuddin stated that he is 53 years old at present. He stated that he is not doing anything though during crossexamination PW1 had stated that he does some agricultural work. Even if he was not working nothing has been brought on record to show that he was suffering from any ailment or was prevented by any other cause from working. As per the settled law the father is not regarded as a dependent. However the petitioner No.1 being the mother of the deceased would be regarded as dependent on the deceased.
20. The petitioners have claimed loss of dependency on the basis that the deceased Md. Rajiuddin was a young boy of 23 years of age and was unmarried. It was averred that he was running his own parchoon shop and was selfemployed and was earning Rs.10,000/ p.m. PW1 in paras 3 to 6 of his affidavit Ex.PW1/A had deposed to that effect. He stated that at the time of the accident his son Rajiuddin was aged about 23 years and he was doing the Suit no.28/14, 31/14 Asgari Begum & Ors. Vs. Mushraf Ali & Ors. Page no. 17 of 46 work in his own Kiryana Shop and was earning about Rs.10,000/ per month. He deposed that his son left behind the petitioner No.2 himself as father, aged about 53 years, petitioner No.1 Smt. Asgari Khatoon as mother aged about 49 years and there was no other legal heir of the deceased. He stated that the future of his son was bright and due to the sudden death of his son their all hopes were destroyed. He stated that he had suffered great mental pain and mental agony, loss of dependency, loss of pecuniary and non pecuniary, loss of income, loss of love and affection due to the sudden and untimely demise of his son. However the petitioners have not placed on record any document to show that the deceased was indeed running a parchoon shop or that he was earning Rs.10,000/ p.m.
21. During crossexamination by the learned counsel for the respondent No. 2 PW1 stated that he had not placed on record any document to show that his son was earning Rs.10,000/ per month. He stated that his son was class 56 pass. He denied the suggestion that his son was not earning Rs.10,000/ per month at the time of his death. Thus PW1 himself stated that he had not placed on record any document to show that his son was earning Rs.10,000/ per month. He stated that his son was class 56 pass. As such PW1 had stated that he had not placed on record any document to show that his son was earning Rs.10,000/ per month and there is nothing on record to show that the deceased was running a parchoon shop or that he was earning Rs. 10,000/ p.m. Even the particulars of the shop have not been stated as to Suit no.28/14, 31/14 Asgari Begum & Ors. Vs. Mushraf Ali & Ors. Page no. 18 of 46 where it was being run nor any document in respect of the shop has been produced on record. During examination by the Tribunal the petitioner No.2 th had stated that the deceased had passed class 8 whereas during cross examination PW1 had stated that his son was class 56 pass. No document has been produced on record to show the same. In the absence of documentary evidence the income of the deceased would have to be computed on the basis of minimum wages for an unskilled worker prevalent on the date of the accident i.e 27.6.2011 in Bihar (the accident had taken place in Bihar and there is nothing on record to show that the deceased was residing in and working in Delhi) which were Rs.3,250/ per month. Thus the actual income of the deceased for the computation of loss of dependency would be Rs.3,250/ p.m.
22. It is the case of the petitioners that the deceased was 23 years of age at the time of the accident and it was so stated in the claim petition and PW1 had also deposed to that effect. No document has been placed on record in respect of the age of the deceased. The post mortem report shows the age of the deceased to be 28 years. As such the deceased would have been 28 years old on the date of the accident i.e. 27.06.2011. As per the judgment of the Hon'ble Supreme Court in Sarla Verma's case the multiplier of 17 applies for calculating the loss of income where the age of the deceased is 26 to 30 years. The law is now well settled that in the case of death of a child, the multiplier would be as per the age of the deceased and not as per the age of Suit no.28/14, 31/14 Asgari Begum & Ors. Vs. Mushraf Ali & Ors. Page no. 19 of 46 the claimants or as per the age of the mother. The issue of multiplier was considered by the Hon'ble High Court in the case of Mohd. Hasnain & Ors. Vs. Jagram Meena & Ors. bearing MAC. APP. No. 152/2014, decided on 24.03.2014, wherein it held as under: "21. The maximum value of the multiplier is fixed at 18, which is fairly representing the purchasing capacity of a victim in a stable economy. In the ascertainment of purchasing capacity of the victim, the age of the claimant has no relevance because of the fact that it has no nexus with the assessment of the loss of dependency.
22. Moreover, subsequent to the introduction of Section 163A and the Second Schedule of the Act, the Apex Court in Trilok Chandra, introduced a structural change by increasing the numerical value of multiplier from 16 to 18, whereas it had been fixed at 16 as per Susamma Thomas. Specifically, there was no variation in respect of fundamental premise of "multiplier method‟ as held in Susamma Thomas. In Trilok Chandra, the Apex Court has taken the second schedule as a guiding factor.
23. Significantly, the Apex Court in the case of Reshma Kumari and M. Nag Pal has followed the age of the victim as a factor for selecting the multiplier. Specifically, in the selection of multiplier for the age group up to ‟15‟ the Apex Court never considered the age of the claimants as a relevant factor. Therefore, this court finds no reason to adopt a different formula for the victim who is above "15‟ years of age, whereas the relevant factors have been adopted by the Apex Court such as (i) age of the deceased (ii) income of the deceased and (iii) number of dependents. The Apex Court, while formulating the relevant factors for the assessment of loss of dependency, the age of the claimants was never considered as a factor. Finally, in the assessment of dependency, the courts / tribunals are computing the purchasing capacity of the deceased; not the claimants. Therefore, I am of the considered opinion that the age of the victim is the proper factor for selecting the correct multiplier." Suit no.28/14, 31/14 Asgari Begum & Ors. Vs. Mushraf Ali & Ors. Page no. 20 of 46 This ratio has further been applied by the Hon'ble High Court of Delhi in MAC.APP. 1227/2012 NEW INDIA ASSURANCE CO LTD. V. MS.SHAMIM FATIMA & ORS decided on 1.4.2014 and the learned counsel for the petitioners has relied on the decision of the Hon'ble High Court dated 11.9.2013 in Chander Kala and Anr. v. Satpal and Ors. MAC. APP.743/2012 to the same effect. Thus the multiplier applicable in the instant case would be of 17.
23. Since the deceased was unmarried there would be 50% deduction towards personal and living expenses. As regards the future prospects in Rajesh and Ors. v Rajbir Singh and Ors. 2013 (6) SCALE 563 the Hon'ble Supreme Court held as under:
"11. Since, the Court in Santosh Devi's case (supra) actually intended to follow the principle in the case of salaried persons as laid in Sarla Verma's case (supra) and to make it applicable also to the self employed 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 selfemployed or persons with fixed wages, in case, the deceased victim was below 40 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."
Suit no.28/14, 31/14 Asgari Begum & Ors. Vs. Mushraf Ali & Ors. Page no. 21 of 46
12.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 selfemployed 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."
Thus the petitioners would be entitled to addition of 50% of the income towards future prospects as the deceased was less than 40 years of age. Accordingly the loss of dependency as per the monthly income i.e. Rs. 3,250/ is calculated as under :
Rs.3,250/ + Rs.1,625/ (50% future prospects) = Rs.4,875/ - Rs.2437.5/ (i.e. 50% towards personal expenses) = Rs.2437.5 X 12 (annual) X 17 (multiplier) = Rs.4,97,250/ (rounded off to Rs.4,97,000/)
24. The petitioners are also entitled to compensation for loss of love and affection, loss of estate and funeral expenses. It was stated that the petitioners had incurred Rs.30,000/ for cremation. However there is nothing to show the same.
Suit no.28/14, 31/14 Asgari Begum & Ors. Vs. Mushraf Ali & Ors. Page no. 22 of 46 The total compensation is determined as under:
Loss of dependency : Rs.4,97,000/
Love and affection : Rs.50,000/
Loss of Estate : Rs.10,000/
Funeral expenses : Rs.10,000/
Total : Rs.5,67,000/
Thus, the total compensation would amount to Rs.5,67,000/. COMPENSATION IN SUIT No.31/2014
25. The law is well settled that the compensation has to be awarded in personal injury cases under the following heads: (1) for loss of earnings during the period of treatment (2) loss of future earnings on account of permanent disability (3) expenses suffered by the injured on his treatment, hospitalization, medicines, transportation, nourishing food etc. In addition, the injured is further entitled to nonpecuniary damages/general damages which include (1) damages for pain, suffering and trauma as a consequence of injuries and (2) loss of expectation of life.
Suit no.28/14, 31/14 Asgari Begum & Ors. Vs. Mushraf Ali & Ors. Page no. 23 of 46 MEDICINES AND MEDICAL TREATMENT
26. The case of the petitioner Md. Dilshad Ahamad is that as the offending vehicle turned turtle the deceased and Md. Dilshad Ahamad sustained multiple grievous injuries and the deceased and Md. Dilshad Ahamad along with other copassengers were removed to Sadar Hospital, Saharasa, Bihar, where the deceased was declared brought dead. It was stated that the petitioner Md. Dilshad Ahamad is a young man of about 35 years of age and he had sustained multiple grievous injuries as fracture left patella and multiple abrasions and he remained under treatment for about 6 months and had incurred about Rs.30,000/. It was averred that the accident had ruined his life as he had become a permanently disabled person for whole of the life. The petitioner in paras 2 to 6 of his affidavit Ex.PW2/A had deposed to that effect. He stated that he was diagnosed by the doctors i.e. injury alleged to RTA, Fracture (L) Patella etc. He remained admitted from 27.06.2011 to 28.06.2011 in Sadar Hospital Saharsa, Bihar and remained as an outdoor patient for about one year. He stated that at the time of the accident he was 35 years and due to the accident, he could not do his work for about one year and doctors also advised him complete bed rest for six months. He stated that due to the accident, he became permanent disabled person and he was unable to do his daily routine work. He stated that he had not received his disability certificate from any government hospital. He stated that he had spent about Rs.75,000/ on medical treatment and Rs.35,000/ on special diet, Rs.20,000/ on Suit no.28/14, 31/14 Asgari Begum & Ors. Vs. Mushraf Ali & Ors. Page no. 24 of 46 conveyance, Rs.25000/ on attendant, on physiotherapy Rs.30,000/ were spent and future expenses of Rs.50,000/. Original medical bills, discharge slips, OPD Cards and Xray report, copy of income proof, copy of Election I Card, copy of FIR and copy of educational documents of the petitioner are Ex.PW2/1 to Ex.PW2/6. The documents placed on record by the petitioner show that the petitioner had sustained the injuries stated by him and that he remained admitted in hospital from 27.6.2011 to 28.6.2011. Thus the injuries were grievous in nature. The petitioner had also stated that he had become a permanent disabled person though he himself stated that he had not received his disability certificate from any government hospital and there is even nothing to show the same. During crossexamination by the learned counsel for the respondent No.2 PW2 admitted that he did not have any certificate to show permanent disability. Thus PW2 himself admitted that he did not have any certificate to show permanent disability.
27. During further crossexamination by the learned counsel for the respondent No.2 PW2 admitted that he had not placed any document on record to show the expenses as mentioned in para 5 of his evidence by way of affidavit except for the medical bills which had been placed on record. He stated that he was admitted at Sadar Hospital, Saharsa and then he was taken to Amna Nursing Home. He stated that he remained admitted in Amna Nursing Home for about 20 days initially. He admitted that there is no specific document on record to show that he remained admitted in Amna Nursing Suit no.28/14, 31/14 Asgari Begum & Ors. Vs. Mushraf Ali & Ors. Page no. 25 of 46 Home for about 20 days. He denied the suggestion that all the documents pertaining to his medical treatment were false and fabricated. Thus PW2 admitted that he had not placed any document on record to show the expenses as mentioned in para 5 of his evidence by way of affidavit except for the medical bills which had been placed on record. He stated that he was admitted at Sadar Hospital, Saharsa and then he was taken to Amna Nursing Home and that he remained admitted in Amna Nursing Home for about 20 days initially though he also admitted that there is no specific document on record to show that he remained admitted in Amna Nursing Home for about 20 days. The documents on record only show that he remained admitted in hospital from 27.6.2011 to 28.6.2011. Further there is nothing on record to show that the doctors advised him complete bed rest for 6 months. The petitioner had stated that he had spent on physiotherapy Rs.30,000/ and he has placed on record a bill for Rs.4,070/ towards physiotherapy charges. There is nothing to dispute the said bill. It cannot be disputed that the petitioner had sustained injuries and underwent treatment for the same. The petitioner had stated that he spent Rs.75,000/ on medical treatment. The petitioner has filed bills in respect of expenditure on medicines amounting to Rs.18,273/ approximately. Looking to the injuries the petitioner would be entitled to the amount of the medical bills. The petitioner stated that he would have to spend Rs.50,000/ for future expenses. However the petitioner has not placed on record any document to show the same. At the same time the petitioner would have incurred some expenditure towards medicines and Suit no.28/14, 31/14 Asgari Begum & Ors. Vs. Mushraf Ali & Ors. Page no. 26 of 46 medical treatment even during the subsequent period. As such an amount of Rs.25,000/ (Rs.Twenty Five Thousand only) is awarded towards medicines and medical treatment including the amount of the bills. PAIN AND SUFFERING AND LOSS OF AMENITIES OF LIFE
28. It has been held in Divisional Controller, K. S. R. T. C v Mahadeva Shetty and another AIR 2003 Supreme Court 4172 as under:
13."The damages for vehicular accidents are in the nature of compensation in money for loss of any kind caused to any person. In case of personal injury the position is different from loss of property. In the later case there is possibility of repair or restoration. But in the case of personal injury, the possibility of repair or restoration is practically nonexistent. In Parry V. Cleaver (1969 1 All. E. R. 555) Lord Morris stated as follows:
"To compensate in money for pain and for the physical consequences is invariably difficult, but...... no other process can be devised than that of making monetary assessment."
The case of the petitioner is that as the offending vehicle turned turtle the deceased and Md. Dilshad Ahamad sustained multiple grievous injuries and the deceased and Md. Dilshad Ahamad along with other copassengers were removed to Sadar Hospital, Saharasa, Bihar, where the deceased was declared brought dead. It was stated that the petitioner Md. Dilshad Ahamad is a young man of about 35 years of age and he had sustained multiple grievous Suit no.28/14, 31/14 Asgari Begum & Ors. Vs. Mushraf Ali & Ors. Page no. 27 of 46 injuries as fracture left patella and multiple abrasions and he remained under treatment for about 6 months. It was averred that the accident had ruined his life as he had become a permanently disabled person for whole of the life. PW2 stated that he was diagnosed by the doctors i.e. injury alleged to RTA, Fracture (L) Patella etc. He remained admitted from 27.06.2011 to 28.06.2011 in Sadar Hospital Saharsa, Bihar and remained as an outdoor patient for about one year. He stated that at the time of the accident he was 35 years and due to the accident, he could not do his work for about one year and doctors also advised him complete bed rest for six months. He stated that due to the accident, he became permanent disabled person and he was unable to do his daily routine work. He stated that he had not received his disability certificate from any government hospital. He stated that due to the accident he had suffered great mental pain and agony, financial problem, loss of pecuniary and non pecuniary, loss of social activities as well as marriage prospects and his future became in darkness. The documents placed on record by the petitioner show that the petitioner had sustained the injuries stated by him and that he remained admitted in hospital from 27.6.2011 to 28.6.2011. Thus the injuries were grievous in nature. The petitioner had also stated that he had become a permanent disabled person though he himself stated that he had not received his disability certificate from any government hospital and there is even nothing to show the same. During crossexamination by the learned counsel for the respondent No.2 PW2 admitted that he did not have any certificate to show permanent disability. Thus PW2 himself admitted that he did not have Suit no.28/14, 31/14 Asgari Begum & Ors. Vs. Mushraf Ali & Ors. Page no. 28 of 46 any certificate to show permanent disability. Looking at the nature of injuries and extent of treatment and that the accident pertains to the year 2011, the petitioner is awarded Rs.20,000/ (Rs.Twenty Thousand only) for pain and suffering.
29. It was stated that the petitioner was 35 years of age at the time of the accident and it was so stated in the claim petition and PW2 had also deposed to that effect. The copy of the PAN card of the petitioner is on record which shows his date of birth to be 8.2.1976 and as such he would have been more than 35 years old on the date of the accident i.e. 27.6.2011. Notice can be taken of the fact that on account of the injuries sustained by him the petitioner may not have been able to perform his day to day duties towards his family and on account of the injuries suffered by him the petitioner may not have been able to enjoy the amenities of life. In the circumstances the petitioner is awarded a sum of Rs.10,000/ (Rs.Ten Thousand only) for loss of amenities of life. The petitioner cannot however be held to be entitled to any amount towards disfiguration or loss of expectation of life. CONVEYANCE AND SPECIAL DIET
30. The petitioner in para 5 of his affidavit Ex.PW2/A had stated that he had spent Rs.20,000/ on conveyance. During crossexamination by the learned counsel for the respondent No.2 PW2 admitted that he had not placed any Suit no.28/14, 31/14 Asgari Begum & Ors. Vs. Mushraf Ali & Ors. Page no. 29 of 46 document on record to show the expenses as mentioned in para 5 of his evidence by way of affidavit except for the medical bills which had been placed on record. Although the petitioner has not filed any document in order to prove the expenditure on conveyance however, notice can be taken of the fact that after the accident the petitioner was taken to Sadar Hospital, Saharsa, Bihar and he was also treated at Amna Nursing Home and that after discharge from hospital he might have hired the services of private conveyance as he would not have been able to drive of his own or to use public conveyance. In the circumstances a sum of Rs.5,000/ (Rs.Five Thousand only) would be just and proper towards conveyance charges.
31. The petitioner had stated in para 5 of his affidavit Ex.PW2/A that he had spent Rs.35,000/ towards special diet. During crossexamination by the learned counsel for the respondent No.2 PW2 admitted that he had not placed any document on record to show the expenses as mentioned in para 5 of his evidence by way of affidavit except for the medical bills which had been placed on record. Although the petitioner has not proved that he was advised special diet but looking at the nature of injuries sustained by the petitioner notice can be taken of the fact that the petitioner might have taken diet rich in protein, vitamins and minerals for speedier recovery. In the circumstances the petitioner is awarded a sum of Rs.3,000/ (Rs.Three Thousand only) for special diet.
Suit no.28/14, 31/14 Asgari Begum & Ors. Vs. Mushraf Ali & Ors. Page no. 30 of 46
32. The petitioner had stated in para 5 of his affidavit Ex.PW2/A that he had spent Rs.25,000/ on attendant. Although the petitioner has not produced any evidence to show that he incurred any expenses towards attendant charges, however looking to the nature of injuries the petitioner would have incurred some expenditure on attendant charges and a sum of Rs.4000/ is awarded towards attendant charges.
LOSS OF INCOME
33. It is the case of the petitioner that at the time of the accident he was aged about 35 years and he was running a Coaching Centre and was self employed and was earning Rs.3,00,000/ p.a. It was averred that the accident had ruined his life as he had become a permanently disabled person for whole of the life. PW2 in paras 3, 4 and 6 of his affidavit Ex.PW2/A had stated to that effect. He stated that at the time of the accident he was 35 years and was working in a Coaching Centre and his income was Rs.3,00,000/ per annum. Due to the accident, he could not do his work for about one year and doctors also advised him complete bed rest for six months. He stated that due to the accident, he became permanent disabled person and he was unable to do his daily routine work. He stated that he had not received his disability certificate from any government hospital. He stated that due to the accident he had suffered great mental pain and agony, financial problem, loss of pecuniary and non pecuniary, loss of social activities as well as marriage prospects and his Suit no.28/14, 31/14 Asgari Begum & Ors. Vs. Mushraf Ali & Ors. Page no. 31 of 46 future became in darkness. Original medical bills, discharge slips, OPD Cards and Xray report, copy of income proof, copy of Election I Card, copy of FIR and copy of educational documents of the petitioner are Ex.PW2/1 to Ex.PW2/6. However the petitioner has not placed on record any document to show that he was indeed running a Coaching Center. During cross examination by the learned counsel for the respondent No.2 PW2 stated that he had not placed on record any document to show that he was running a Coaching Center and even the Income Tax Return filed by him does not reflect that he was running a Coaching Centre. In fact it is significant that in the written statement the respondent No.1 had stated that the petitioner Md. Dilshad Ahamad was a contract teacher in Bihar Government and posted at Urdu Karmik Vidyalaya, Paraswanna, Nauhatta, Saharsa, Bihar and was drawing salary of a sum of Rs.6,000/ per month though the petitioner was not crossexamined on behalf of the respondent No.1. PW2 had stated that he had studied till Inter but he had not brought any document to show that he was Inter pass and there is no document to show the educational qualifications of the petitioner on record. Thus PW2 himself stated that he had not placed on record any document to show that he was running a Coaching Center. As such nothing has been produced on record to show what the petitioner was doing and even the particulars of the Coaching Center were not stated nor any witness produced to prove that the petitioner was indeed running a coaching center. During his examination by the Tribunal the petitioner stated that he was 36 years old. The petitioner has placed on record his ITR for the assessment Suit no.28/14, 31/14 Asgari Begum & Ors. Vs. Mushraf Ali & Ors. Page no. 32 of 46 year 200910 as per which the gross total income of the petitioner was Rs. 1,61,650/ and for the assessment year 20102011 as per which the gross total income of the petitioner was Rs.2,41,314/. Thus even the ITRs do not show that the petitioner was earning Rs.3,00,000/ p.a. Being the last ITR prior to the accident the income of the petitioner would be taken as per the ITR for the assessment year 201011 i.e. Rs.2,41,314/.
34. The petitioner had stated that due to the accident he could not work for about one year and the doctors had advised him complete bed rest for 6 months. However there is nothing to show that the injuries were such that on account of the same the petitioner was not able to work for about one year. There is also nothing to show that he was advised bed rest for any particular period or that he remained on bed rest for any particular period much less for 6 months. The petitioner has not shown for how much period he could not perform his avocation on account of the injuries sustained in the accident. The petitioner has also not filed any advice of the doctor by which he was prescribed rest for any specific period. In the absence of any advice of doctor, notice can be taken of the fact that petitioner may not have been able to perform his avocation for some period. Hence, the petitioner is held entitled to an amount of Rs.60,000/ on account of loss of income including for the period he may not have been able to work.
Suit no.28/14, 31/14 Asgari Begum & Ors. Vs. Mushraf Ali & Ors. Page no. 33 of 46
35. There is also nothing to show that the petitioner had suffered any disability on account of the injuries. The petitioner has not proved that he acquired any disability on account of the accident or that he is likely to suffer future loss of income on account of the injuries sustained in the accident and that the injuries would reduce his efficiency to work and thereby he would suffer loss of future income. As such the petitioner cannot be held entitled to any amount towards loss of future prospects.
The total compensation is assessed as under:
Medicines and Medical treatment Rs.25,000/ Pain and suffering Rs.20,000/ Loss of Amenities of life Rs.10,000/ Conveyance Rs.5,000/ Special Diet Rs.3,000/ Attendant charges Rs.4,000/ Loss of Income Rs.60,000/ TOTAL Rs.1,27,000/
Thus the total compensation would be Rs.1,27,000/. APPORTIONMENT OF LIABILITY:
36. The respondent No.1 is the driver and owner and the respondent No.2 is the insurer of the offending vehicle. It is the case of the respondent No.2 Suit no.28/14, 31/14 Asgari Begum & Ors. Vs. Mushraf Ali & Ors. Page no. 34 of 46 that the respondent No.1 was not holding a valid and effective permit on the date of the accident which amounted to fundamental breach of condition of policy and as such the insurance company was not liable to pay the compensation. In support of its case the respondent No.2 had produced R2W1 in the witness box who stated that the vehicle No.BR 11TC 4196 (passenger carrying tempo) was insured with the respondent No.3 (ought to be respondent No.2) company vide policy No.0G122445180300000443 issued for the period 18.05.2011 to 17.05.2012 in the name of respondent No.1 Shri Musharaf Ali. Copy of the insurance policy is Ex.R2W1/1. She stated that the respondent No.2 insurance company sent notice dated 13.02.2014 under Order 12 Rule 8 CPC through its counsel to the respondent No.1, insured asking him to produce the original insurance policy and copy of permit valid and effective as on the date of accident qua the vehicle in question. Copy of the notice dated 13.02.2014 is Ex.R2W1/2 and its postal receipt is Ex.R2W1/3. She stated that inspite of sending the notice under Order 12 Rule 8 of CPC by the respondent No.2 Insurance Company, the respondent No.1 had not produced the copy of the permit. She stated that the said notice had not been returned back undelivered and the respondent No.1 had also not sent any reply to the notice of the respondent No.2 and accordingly an adverse inference was liable to be taken against the respondent No.1 that the insured vehicle No.BR 11 TC 4196 was not having a valid and effective permit as required under the law. She stated that the respondent No.1 was driving the insured vehicle without having a valid and effective permit and had thus Suit no.28/14, 31/14 Asgari Begum & Ors. Vs. Mushraf Ali & Ors. Page no. 35 of 46 violated the terms and conditions of the insurance policy as well as the provisions of Motor Vehicle Act, as the insured vehicle was not having a valid and effective permit. She stated that in view of the said violations the insurance company had no liability to indemnify the respondent No.1 or to pay any amount of compensation to the petitioners. She was not crossexamined on behalf of the petitioners and the respondent No.1. It is pertinent that the respondent No.1 had filed the written statement and also placed on record several documents but did not place on record any copy of the permit. The learned counsel for the respondent No.1 had argued that the copy of the permit had been handed over to the insurance company for seeking claim for damage to the vehicle. However a copy of the letter by the Insurance Company to the respondent No.1 is on record whereby the respondent No.1 was asked to submit, inter alia a copy of the permit. However there is nothing to show that the respondent No.1 was in possession of a valid permit on the date of the accident nor copy of any such permit has been produced on record.
37. Nonproduction of permit to run a commercial vehicle is a defence legally available to the insurance company under Section 149 of the Act. In New India Assurance Co. Ltd. v. Asha Rani and Ors. (2003) 2 SCC 223 and National Insurance Co. Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. (2002) 7 SCC 456 the scope of Sections 149(2) and 149(7) of the Act was explained and it was observed that an insurer could avoid its liability only Suit no.28/14, 31/14 Asgari Begum & Ors. Vs. Mushraf Ali & Ors. Page no. 36 of 46 in accordance with what had been provided for in subsection (2) of Section 149 of the Act. The Hon'ble Supreme Court in National Insurance Co. Ltd. v. Chella Bharathamma & Ors. (2004) 8 SCC 517 considered the aforesaid two judgments and it was held:
"High Court was of the view that since there was no permit, the question of violation of any condition thereof does not arise. The view is clearly fallacious. A person without permit to ply a vehicle cannot be placed at a better pedestal visàvis one who has a permit, but has violated any condition thereof. Plying of a vehicle without a permit is an infraction. Therefore, in terms of Section 149(2) defence is available to the insurer on that aspect. The acceptability of the stand is a matter of adjudication. The question of policy being operative had no relevance for the issue regarding liability of insurer. High Court was, therefore, not justified in holding the insurer liable.
The residual question is what would be the appropriate direction. Considering the beneficial object of the Act, it would be proper for the insurer to satisfy the award, though in law it has no liability. In some cases the insurer has been given the option and liberty to recover the amount from the insured. For the purpose of recovering the amount paid from the owner, the insurer shall not be required to file a suit. It may initiate a proceeding before the concerned Executing Court as if the dispute between the insurer and the owner was the subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer."
In the present case, since the driver cum owner has failed to produce the permit and further he did not step into the witness box to assert that he was Suit no.28/14, 31/14 Asgari Begum & Ors. Vs. Mushraf Ali & Ors. Page no. 37 of 46 having a valid permit, in such circumstances, an adverse inference is liable to be drawn against him. Further the Hon'ble High Court of Delhi in MAC.APP. 1008/2011 Reliance General Insurance Co. Ltd. v. Nawab Jan & Ors. decided on 27.3.2014 where the witness of the insurance company had proved that the notice under Order 12 rule 8 CPC was served upon the owner by which he was asked to produce the permit of the offending vehicle in the court but he failed to do so observed:
"6. The factum of the notice has been proved by the appellant. Therefore, there is nothing on record whether the offending vehicle was having valid permit at the time of accident or not. In such eventuality, adverse inference had to be drawn against the owner of the offending vehicle. However, Ld. Tribunal failed to do so.
7. In view of the aforementioned facts, I am of the considered opinion that Ld. Tribunal has wrongly held that the breach of terms of the policy has not been established. Therefore, appellant is at liberty to recover the amount from respondent no. 7, i.e. the owner of the offending vehicle."
In the instant case as well there is nothing to show that the respondent No.1 had a valid permit at the time of the accident and as such adverse inference is liable to be drawn against him.
38. It is settled law that the insurance company has to establish that there was a conscious breach of the terms and conditions of the policy. In the instant case the respondent No.1 has not appeared in the witness box to Suit no.28/14, 31/14 Asgari Begum & Ors. Vs. Mushraf Ali & Ors. Page no. 38 of 46 depose that he had a valid permit. In New India Assurance Co. Ltd. v. Sanjay Kumar & Ors. ILR 2007 (II) Delhi 733 the Hon'ble High Court observed as under:
"23. Where the assured chooses to run away from the battle i.e. fails to defend the allegation of having breached the terms of the insurance policy by opting not to defend the proceedings, a presumption could be drawn that he has done so because of the fact that he has no case to defend. It is trite that a party in possession of best evidence, if he withholds the same, an adverse inference can be drawn against him that had the evidence been produced, the same would have been against said person. As knowledge is personal to the person possessed of the knowledge, his absence at the trial would entitle the insurance company to a presumption against the owner.
24. That apart, what more can the insurance company do other than to serve a notice under Order 12 Rule 8 of the Code of Civil Procedure calling upon the owner as well as the driver to produce a valid driving license. If during trial such a notice is served and proved to be served, non response by the owner and the driver would fortify the case of the insurance company."
Though this case related to a driving license but the same principles would apply in the instant case.
39. It is now well settled that in such cases the insurance company would first have to satisfy the liability towards third party though it may subsequently recover the amount from the insured. The issue was considered at length by the Hon'ble High Court of Delhi in Sanjay v. Suresh Chand & Ors. F.A.O. No. Suit no.28/14, 31/14 Asgari Begum & Ors. Vs. Mushraf Ali & Ors. Page no. 39 of 46 445/2000 decided on 3.8.2012 and it was observed:
"The issue of satisfying the third party liability even in case of breach of the terms of insurance policy is settled by three Judge Bench report in Sohan Lal Passi v. P. Sesh Reddy, (1996) 5 SCC 21. As per Section 149(2) of the Motor Vehicles Act (the Act), an insurer is entitled to defend the action on the grounds as mentioned under Section 149(2)(a)
(i)(ii) of the Act. Thus, the onus is on the insurer to prove that there is breach of the condition of the policy. It is well settled that the breach must be conscious and willful. Even if a conscious breach on the part of the insured is established, still the insurer has a statutory liability to pay the compensation to the third party and will simply have the right to recover the same from the insured/tortfeasor either in the same proceedings or by independent proceedings as the case may be, as ordered by the Claims Tribunal or the Court. The question of statutory liability to pay the compensation was discussed in detail by a two Judge Bench of the Supreme Court in Skandia Insurance Company Limited v. Kokilaben Chandravadan, (1987) 2 SCC 654 where it was held that exclusion clause in the contract of Insurance must be read down being in conflict with the main statutory provision enacted for protection of victim of accidents. It was laid down that the victim would be entitled to recover the compensation from the insurer irrespective of the breach of the condition of policy. The three Judge Bench of the Supreme Court in Sohan Lal Passi analyzed the corresponding provisions under the Motor Vehicles Act, 1939 and the Motor Vehicles Act, 1988 and approved the decision in Skandia. In New India Assurance Co., Shimla v. Kamla and Ors., (2001) 4 SCC 342, the Supreme Court referred to the decision of the two Judge Bench in Skandia, the three Judge Bench decision in Sohan Lal Passi and held that the insurer who has been made liable to pay the compensation to third parties on account of issuance of certificate of insurance, shall be entitled to recover the same if there was any breach of the policy condition on account of the vehicle being driven without a valid driving licence.
Suit no.28/14, 31/14 Asgari Begum & Ors. Vs. Mushraf Ali & Ors. Page no. 40 of 46
20. This Court in MAC APP. No.329/2010 Oriental Insurance Company Limited v. Rakesh Kumar and Others and other Appeals decided by a common judgment dated 29.02.2012, noticed some divergence of opinion in National Insurance Company Limited v. Kusum Rai & Ors., (2006) 4 SCC 250, National Insurance Company Limited v. Vidhyadhar Mahariwala & Ors., (2008) 12 SCC 701; Ishwar Chandra & Ors. v. The Oriental Insurance Company Limited & Ors.,(2007) 10 SCC 650 and Premkumari & Ors. v. Prahalad Dev & Ors., (2008) 3 SCC 193 and held that in view of the three Judge Bench decision in Sohan Lal Passi (supra) and Swaran Singh, the liability of the Insurance Company visàvis the third party is statutory. If the Insurance Company successfully proves the conscious breach of the terms of the policy, then it would be entitled to recovery rights against the owner or driver, as the case may be."
Thus if the insurance company proves conscious breach of the terms of the policy, it would be entitled to recovery rights. In the instant case the insurance company has succeeded in discharging the onus in this regard and it stands established that the respondent No.1 was not holding a valid permit and thereafter the respondent No.1 has not appeared to rebut the same.
40. In view of the settled law the insurance company is liable qua third party though it shall be vested with the right to recover the amount of liability from the insured after depositing the compensation awarded to the third party. Since the respondent No.1 did not produce a valid permit the respondent No.2 shall have the right to recover the amount of compensation from the respondent No.1 who is the driver cum owner of the offending vehicle and the insured. Accordingly the respondent No.2 shall deposit the amount of Suit no.28/14, 31/14 Asgari Begum & Ors. Vs. Mushraf Ali & Ors. Page no. 41 of 46 compensation for which the respondent No.1 would be liable and after depositing the same shall have the right to recover the same from the respondent No.1.
RELIEF
41. The petitioners in suit No.28/14 are awarded a sum of Rs.5,67,000/ (Rs.Five Lacs Sixty Seven Thousand only) and the petitioner Md. Dilshad Ahamad in suit No.31/14 is awarded a sum of Rs.1,27,000/ (Rs.One Lac Twenty Seven Thousand only) along with interest @ 9% per annum from the date of filing of the claim petition till its realization including, interim award, if any already passed against the respondents and in favour of the petitioners. In suit No.31/14 the entire amount be released to the petitioner Md. Dilshad Ahamad by transferring it into his savings account in UCO Bank, Patiala House Court, New Delhi.
42. In suit No.28/14 the petitioner No.2 Moinuddin would be entitled to 20% share in the awarded amount and the petitioner No.1 Smt. Asagari Khatoon would be entitled to 80% share in the awarded amount. For safeguarding the compensation amount from being frittered away by the claimants, directions have been given by Hon'ble Supreme Court for preserving the award amount in the case of Jai Prakash Vs. National Insurance Co. Ltd. and Others (2010) 2 Supreme Court Cases 607. In view of the directions contained in the Suit no.28/14, 31/14 Asgari Begum & Ors. Vs. Mushraf Ali & Ors. Page no. 42 of 46 above judgment the award amount is to be disbursed as follows:
a) The entire share of the petitioner No.2 Shri Moinuddin be released to him by transferring it into his savings account in UCO Bank, Patiala House Court.
20% of the share of the petitioner No.1 be released to her by transferring it into her savings account and the remaining amount out of her share be kept in FDRs in UCO Bank, Patiala House Court, New Delhi in the following manner:
1. Fixed deposit in respect of 20% for a period of one year.
2. Fixed deposit in respect of 20% for a period of two years.
3. Fixed deposit in respect of 20% for a period of three years.
4. Fixed deposit in respect of 20% for a period of four years.
b)The respondent No.2 is directed to deposit the amount directly by way of crossed cheque in terms of the above order in UCO Bank, Patiala House Court, New Delhi in the name of UCO Bank, Patiala House Court, New Delhi A/c Smt. Asagari Khatoon and Shri Moinuddin within 30 days of the passing of the award.
c) Cheque be deposited within thirty days herefrom under intimation to the petitioners. In case of default, the respondent No.2 shall be liable to pay further interest @ 12% per annum for the period of delay. Suit no.28/14, 31/14 Asgari Begum & Ors. Vs. Mushraf Ali & Ors. Page no. 43 of 46
d) On the deposit of the award amount, the Branch Manager of UCO Bank, Patiala House Court, New Delhi is directed to prepare Fixed Deposit Receipts as ordered above and the balance amount be released.
e) The interest on the fixed deposits shall be paid monthly by automatic credit of interest in the savings account of the petitioner No.1.
f) The withdrawal from the aforesaid account shall be permitted to the petitioner No.1 after due verification and the bank shall issue photo identity card to the petitioner No.1 to facilitate her identity.
g) No cheque book shall be issued to the petitioner No.1 without the permission of the court.
h) The original fixed deposit receipts shall be retained by the bank in safe custody. However, the original pass book shall be given to the petitioner No.1 along with the photocopy of the fixed deposit receipts. Upon the expiry of period of FDR the bank shall automatically credit the maturity amount in the saving account of the beneficiary.
i) The original fixed deposit receipts shall be handed over to the petitioner No.1 on the expiry of the period of the fixed deposit receipts. Suit no.28/14, 31/14 Asgari Begum & Ors. Vs. Mushraf Ali & Ors. Page no. 44 of 46
j) No loan, advance, or withdrawal shall be allowed on the said FDRs without the permission of the court.
k) On the request of the petitioners, the bank shall transfer the saving account to any other branch/bank, according to the convenience of the petitioners.
l) The petitioners shall furnish all the relevant documents for opening of the saving bank account and Fixed Deposit to Senior Manager of UCO Bank, Patiala House Court, New Delhi.
43. The petitioners shall file two sets of photographs along with their specimen signatures, out of which one set to be sent to the Nodal Officer, UCO Bank, Patiala House Court, New Delhi along with copy of the award by Nazir and the second set be retained to the court for further reference. The photographs be stamped and sent to the bank. The petitioners shall also file the proof of residence and furnish the details of the bank account with the Nazir within a week. The petitioners shall file their complete address as well as address of their counsel for sending the notice of deposit of the award amount.
44. Nazir to report in case the cheques are not deposited within 30 days of the passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself. The respondent No.2 shall Suit no.28/14, 31/14 Asgari Begum & Ors. Vs. Mushraf Ali & Ors. Page no. 45 of 46 deposit the award amount along with interest upto the date of notice of deposit to the claimants with a copy to their counsel and the compliance report shall be filed in the court along with proof of deposit of award amount, the notice of deposit and the calculation of interest on 21.1.2015. An attested copy of the award be given to the parties (free of cost) and a copy be also sent to the Nodal Officer, UCO Bank, Patiala House. File be consigned to record room.
Announced in open court
on this 20th day of October, 2014 (GEETANJLI GOEL)
PO: MACT2
New Delhi
Suit no.28/14, 31/14
Asgari Begum & Ors. Vs. Mushraf Ali & Ors. Page no. 46 of 46