Delhi District Court
Tabassum vs Zafaruddin on 14 October, 2023
IN THE COURT OF MS. MAYURI SINGH
P.O : MOTOR ACCIDENT CLAIMS TRIBUNAL
EAST DISTRICT : KARKARDOOMA COURTS: DELHI
In the matters of :
CNR No.: DLET01-010542-2016
MACP No. 66/2019
Shameem Vs. Zafaruddin & Ors.
In the matter of :
Shamima@ Shameem (injured)
W/o Mohd. Mohd. Fahim Khan
R/o 9/369, Khichripur, East Delhi
Delhi-110091. ......... Petitioner
Versus
1. Zafaruddin
S/o Sh. Abdul Mahid,
R/o 11/111, Trilok Puri, Delhi.
2. Kartar Singh
S/o Sh. Chottu Ram,
R/o 9/243, Trilok Puri, Delhi.
3. United India Insurance Co. Ltd.
P-19-20, Phase-I, Mayur Vihar,
Pandav Nagar, New Delhi.
4. Gaurav Panwar
S/o Sh. Giri Raj,
R/o A-34, Gali No.2, Karawal Nagar,
New Delhi-110094. ......... Respondents
AND MACP No. 67/2019 CNR No. DLET01-010543-2016 Farhana (injured) R/o 9/369, Khichripur, East Delhi.
MACP No.66/19 ; Shameem @ Shameema Vs. Zafaruddin & Ors. MACP No.67/19 ; Farhana Vs. Zafaruddin & Ors.
MACP No.68/19 ; Mohd. Fahim Khan Vs. Zafaruddin & Ors. MACP No.66/19 ; Iram Vs. Zafaruddin & Ors.
MACP No.66/19 ; Tabassum Vs. Zafaruddin & Ors. Page 1 of 44Delhi-110091. ......... Petitioner Versus
1. Zafaruddin
2. Kartar Singh
3. United India Insurance Co. Ltd.
4. Gaurav Panwar (Details as above-mentioned) ........Respondents AND MACP No. 68/2019
1. Shameem (W/o deceased injured Mohd. Mohd. Fahim Khan) W/o Late Sh. Mohd. Mohd. Fahim Khan,
2. Waseem Khan, S/o Late Sh. Mohd. Mohd. Fahim Khan,
3. Sh. Junaid Khan, S/o Late Sh. Mohd. Mohd. Fahim Khan,
4. Tazeem Khan, S/o Late Sh. Mohd. Mohd. Fahim Khan, (All legal heirs of deceased Mohd. Mohd. Fahim Khan) All residents of :-
9/369, Khichripur, East Delhi, Delhi-110091 .....Petitioners Versus
1. Zafaruddin
2. Kartar Singh
3. United India Insurance Co. Ltd.
4. Gaurav Panwar (Details as above-mentioned) ......... Respondents AND MACP No. 69/2019 Baby Iram, (Through her father Mohd. Atiq), D/o Mohd. Atiq, MACP No.66/19 ; Shameem @ Shameema Vs. Zafaruddin & Ors.
MACP No.67/19 ; Farhana Vs. Zafaruddin & Ors.
MACP No.68/19 ; Mohd. Fahim Khan Vs. Zafaruddin & Ors. MACP No.66/19 ; Iram Vs. Zafaruddin & Ors.
MACP No.66/19 ; Tabassum Vs. Zafaruddin & Ors. Page 2 of 44R/o 9/369, Khichripur, Patparganj, East Delhi, Delhi-110091. ....Petitioner Versus
1. Zafaruddin
2. Kartar Singh
3. United India Insurance Co. Ltd.
4. Gaurav Panwar (Details as above-mentioned) ......... Respondents AND MACP No. 70/2019 Tabassum (Injured) W/o Mohd. Tanjum, R/o 9/369, Khichirpur, East Delhi, Delhi-110091. .....Petitioner Versus
1. Zafaruddin
2. Kartar Singh
3. United India Insurance Co. Ltd.
4. Gaurav Panwar (Details as above-mentioned) ......... Respondents Date of Institution : 07.09.2016 Date of arguments : 06.09.2023, 20.09.2023, 27.09.2023 & 14.10.2023.
Date of Judgment : 14.10.2023
AWAR D
1. By this common award, all five claim petitions, arising out of same accident, filed under section 166/140 of the Motor Vehicles Act, MACP No.66/19 ; Shameem @ Shameema Vs. Zafaruddin & Ors. MACP No.67/19 ; Farhana Vs. Zafaruddin & Ors.
MACP No.68/19 ; Mohd. Fahim Khan Vs. Zafaruddin & Ors. MACP No.66/19 ; Iram Vs. Zafaruddin & Ors.
MACP No.66/19 ; Tabassum Vs. Zafaruddin & Ors. Page 3 of 441988, would be decided. It is relevant here to mention that DAR was filed by IO in this matter for all five injured separately and cases were consolidated as well for the purpose of enquiry. However, thereafter, separate claim petitions were also filed by the petitioners and Mr. Gaurav Panwan was also impleaded as an additional respondent / R-4, who is informant in the police case registered with respect to accident.
2. Important facts of the case are as under:
On 27.06.2016 at about 5 am, Shameem @ Shamima ( Petitioner has mentioned her name as Shameema @ Shamima but her ID/ Aadhar Card shows her name as Shameem), Mohd. Fahim Khan, Tabassum, Baby Iram and Farhana who all are relatives, were going home on a TSR bearing registration No.DL1RL-2324, driven by respondent No.1/ Zafruddin, in a very high speed and in a zig-zag manner. Petitioners i.e. Shameem, Mohd. Fahim Khan, Tabassum, Iram and Farhana repeatedly warned the respondent no.1 to drive carefully and follow the traffic rules but he did not do so and as and when they reached near Surya Hospital, East Karawal Nagar, Delhi, one side was blocked due to construction work and the way was converted into one way, so, respondent no.1 had to take the TSR on the wrong side and at the same time an i20 Car bearing registration No.DL8CAE-7236, driven by respondent No.4, came in a very rash and negligent manner and at a very high speed and hit the TSR from front side with a violent force and as a result of which, petitioners sustained multiple injuries. The petitioners were immediately admitted in the GTB Hospital, Delhi in a critical condition and their MLC reports were prepared by the doctors of MACP No.66/19 ; Shameem @ Shameema Vs. Zafaruddin & Ors. MACP No.67/19 ; Farhana Vs. Zafaruddin & Ors. MACP No.68/19 ; Mohd. Fahim Khan Vs. Zafaruddin & Ors. MACP No.66/19 ; Iram Vs. Zafaruddin & Ors.MACP No.66/19 ; Tabassum Vs. Zafaruddin & Ors. Page 4 of 44
the above-said hospital and after that they were also treated by other hospitals. That the principle of Res ipsa locquitor is attracted in this case. That the accident took place due to rash and negligent driving of the vehicle. Respondent no. 1 and 4 are the drivers of Offending TSR and i20 Car, respondent no. 2 is the registered owner of TSR and respondent no.3 is the insurer of the offending vehicle. Thus, all the respondents are liable to jointly compensate the petitioner. Petitioners are entitled to get amount of compensation for mental and physical shock, pain, suffering, mental stress, etc also, besides other compensation.
3. Written statement was filed on behalf of respondent no. 1 Zafaruddin and he stated that the claim petition filed by the petitioner is not maintainable as the petitioner himself deposed during cross- examination that the answering respondent was negligent and that it was respondent no. 4, due to whose negligence the accident took place and for this respondent no. 1 made a complaint before the concerned SHO for taking action against respondent no. 4 for misusing the post and registering a false FIR against the answering respondent. That the answering respondent was driving his vehicle by following the traffic rules and also he is having a valid driving licence which is already on record, hence the present petition is not maintainable.
4. In the written statement filed by R2/ Kartar Singh, he has stated that a false case has been filed against him with a view to extort money and petitioners have not come to the court with clean hands and further that R1 / Zafruddin was driving the TSR by following traffic rules and it was R4 who was driving the i20 car bearing no.
MACP No.66/19 ; Shameem @ Shameema Vs. Zafaruddin & Ors. MACP No.67/19 ; Farhana Vs. Zafaruddin & Ors.
MACP No.68/19 ; Mohd. Fahim Khan Vs. Zafaruddin & Ors. MACP No.66/19 ; Iram Vs. Zafaruddin & Ors.
MACP No.66/19 ; Tabassum Vs. Zafaruddin & Ors. Page 5 of 44DL8CAE7236 (hereinafter referred to as 'car') in a rash and negligent manner and at a very high speed and hit the TSR with violent force. R4 is a police official and due to this the police officials investigating the accident have falsely implicated R1 and R2.
5. In the written statement filed by R3/ United India Insurance Co. Ltd. (Insurance company of the TSR), it is stated the mechanical inspection reports of the vehicles involved, site plan and statement of the petitioners Mohd. Fahim Khan, Tabassum and Fatima who were traveling as passengers in TSR, make it clear that the accident occurred due to negligence on the part of R4 / Gaurav Panwar who was driving the i20 car in a rash and negligent manner at a high speed and under the influence of alcohol and collided with the TSR coming from the opposite direction, leading to the accident and sustaining of injuries by the petitioners. Gaurav Panwar, being employed with Delhi Police, managed to get a false lodged against R1. As per the site-plan prepared by police, there was a diversion on road no. 57 in front of Surya Hospital, East Krishna Nagar and both of the accidental vehicles have been shown to have collided head on, at a time when both vehicles had to ply on the same road in the opposite direction. Police did not conduct blood alcohol test of R4 for fixing liability. TSR was insured and had valid documents. Respondent no. 1, while carrying passengers in total, had violated the conditions of permit and RC which provides only for carrying of 3 passengers.
6. In written statement filed on behalf of respondent No.4 Gaurav Panwar, it is stated that petitioner has not come with clean hands MACP No.66/19 ; Shameem @ Shameema Vs. Zafaruddin & Ors. MACP No.67/19 ; Farhana Vs. Zafaruddin & Ors.
MACP No.68/19 ; Mohd. Fahim Khan Vs. Zafaruddin & Ors. MACP No.66/19 ; Iram Vs. Zafaruddin & Ors.
MACP No.66/19 ; Tabassum Vs. Zafaruddin & Ors. Page 6 of 44and has suppressed the material facts from this Hon'ble Court, hence the petition of the petitioner is liable to be dismissed with costs. It is further stated that Gaurav Panwar is complainant in FIR no.365/2016 PS Krishna Nagar which was lodged against the driver and offending TSR, because in the accident, vehicle of R4 was also damaged and he also sustained injuries. It is further stated that actual fact is that on 27.06.2016, when R4 was going to his house on his Hyundai i20 car after performing his duty at about 12:05 am, when he reached at road no. 57 in front of Surya Hospital, suddenly TSR came from wrong side being driven in a rash and negligent manner, in which 4-5 passengers were sitting and hit the car of R4 from front side due to which vehicle of R4 was badly damaged and he sustained injuries. R4 visited SDN hospital for medical treatment and R1 ran away from the spot by driving the TSR in a rash and negligent manner.
7. It is to elaborate here that after filing of separate DAR qua the five injured as above referred and registration of the same as separate claim petitions and filing of written statements by all four respondents, framing of issues and thereafter consolidation of all of the DAR claim petitions on 21.08.2017, separate claim petition u/s 166 MV Act were moved by each of the petitioners separately on 31.01.2018 in the DAR files itself and separate notice of the same was issued for the respondents and copies were supplied and claim petitions posted for filing of written statements by respondents who were served i.e. R3 and R4 and written statements was filed by R4 then. As such, fresh written statements was not filed by other respondents as their written statements were already on MACP No.66/19 ; Shameem @ Shameema Vs. Zafaruddin & Ors. MACP No.67/19 ; Farhana Vs. Zafaruddin & Ors.
MACP No.68/19 ; Mohd. Fahim Khan Vs. Zafaruddin & Ors. MACP No.66/19 ; Iram Vs. Zafaruddin & Ors.
MACP No.66/19 ; Tabassum Vs. Zafaruddin & Ors. Page 7 of 44record and further on 29.11.2018, it was observed that issues already framed be re-framed and issues were re-framed. As claim petitions were filed separately at subsequent stage, it is apparent that DAR claim petition was clubbed with the private claim petitions. Even otherwise, considering the observations made in the judgment Gohar Mohammed vs. Uttar Pradesh State Road Transport Corportion & Ors.,2022 Live Law (80) 1040, and with a view to avoid any confusion, it is clarified that the DAR claim petitions were clubbed with the private claim petitions and now matters are being proceeded as private claim petitions under the same number as that given at the time of registration of DAR claim petitions, as the private claim petitions filed though being proceeded till date, were never registered separately. It is further observed that the written statements was filed on behalf of R3 on 15.11.2016 in all the cases, R1 in the number 852/2016 on 14.12.2016 i.e. prior to filing of the private claim petition on 31.01.2018 and by R3 on 20.07.2018 (in between the dates of hearing) and by R4 on 24.09.2018 i.e. after filing of the private claim petitions. The written statements filed in DAR matters and claim petitions are being considered, as claim petitions were never registered separately and no two written statements were filed by any of the respondents. The DAR petitions were consolidated and the claim petitions attached with the DAR files were never registered separately and hence claim petitions are also deemed consolidated for all purpose. The issues framed and re- framed were practically the same, except framing of additional issue qua role of R4 and his Hyundai i20 Car and for the sake of gravity and MACP No.66/19 ; Shameem @ Shameema Vs. Zafaruddin & Ors. MACP No.67/19 ; Farhana Vs. Zafaruddin & Ors.
MACP No.68/19 ; Mohd. Fahim Khan Vs. Zafaruddin & Ors. MACP No.66/19 ; Iram Vs. Zafaruddin & Ors.
MACP No.66/19 ; Tabassum Vs. Zafaruddin & Ors. Page 8 of 44considering that the matters / claims were later proceeded as private claim petitions on filing of petitions u/s 166 MV Act, the issues framed on 05.04.2017 are not being reproduced here.
8. On the basis of pleadings, following issues were framed on 29.11.2018:-
MACP No. 66/19(i). Whether the petitioner/ Smt. Shamima (Smt. Tabassum written in order dt. 29.11.2018?) suffered injuries in a motor vehicular accident on 27.06.2016 at 12:05 am at road no. 57, in front of Surya Hospital, Krishna Nagar, Delhi within jurisdiction of PS Krishna Nagar, Delhi due to rash and negligent driving of motor vehicle bearing registration no. DL1RL2324 (TSR) and driven by the respondent no. 1/ Zafruddin and / or motor vehicle bearing registration no. DL8CAE7236 (i20 car) driven by respondent no. 4/ Gaurav Panwar? (OPP)
(ii). Whether the composite negligence on the part of the R1 and R4 in causing the accident, if so, its extent? (OPP)
(iii). Whether the R1 was holding a valid driving license to drive three wheeler scooter (TSR) on the date of accident? (OPR1)
(iv) Whether the vehicle bearing registration no.
DL1RL2324 (TSR) was being used on the public road in breach of any condition of insurance policy? (OPR3)
(v) Whether the petitioner is entitled to compensation, if so, to what amount and from whom? (OPP)
(vi) Whether the petitioner is entitled to interest on the award amount, if so, at what rate and for which period? (OPP)
(vii) Relief?
MACP No. 67/19MACP No.66/19 ; Shameem @ Shameema Vs. Zafaruddin & Ors. MACP No.67/19 ; Farhana Vs. Zafaruddin & Ors.
MACP No.68/19 ; Mohd. Fahim Khan Vs. Zafaruddin & Ors. MACP No.66/19 ; Iram Vs. Zafaruddin & Ors.
MACP No.66/19 ; Tabassum Vs. Zafaruddin & Ors. Page 9 of 44(i). Whether the petitioner/ Farhana suffered injuries in a motor vehicular accident on 27.06.2016 at 12:05 am at road no. 57, in front of Surya Hospital, Krishna Nagar, Delhi within jurisdiction of PS Krishna Nagar, Delhi due to rash and negligent driving of motor vehicle bearing registration no. DL1RL2324 (TSR) and driven by the respondent no. 1/ Zafruddin and / or motor vehicle bearing registration no. DL8CAE7236 (i20 car) driven by respondent no. 4/ Gaurav Panwar? (OPP) Issues No. (ii) to (vii) : same as in lead /main case MACP No. 66/19.
MACP No. 68/19(i). Whether the petitioner/ Sh. Fahim (Now deceased) suffered injuries in a motor vehicular accident on 27.06.2016 at 12:05 am at road no. 57, in front of Surya Hospital, Krishna Nagar, Delhi within jurisdiction of PS Krishna Nagar, Delhi due to rash and negligent driving of motor vehicle bearing registration no. DL1RL2324 (TSR) and driven by the respondent no. 1/ Zafruddin and / or motor vehicle bearing registration no. DL8CAE7236 (i20 car) driven by respondent no. 4/ Gaurav Panwar? (OPP) Issues No. (ii) to (vii) : same as in lead /main case MACP No. 66/19.
MACP No. 69/19(i). Whether the petitioner/ Baby Iram suffered injuries in a motor vehicular accident on 27.06.2016 at 12:05 am at road no. 57, in front of Surya Hospital, Krishna Nagar, Delhi within jurisdiction of PS Krishna Nagar, Delhi due to rash and negligent driving of motor vehicle bearing registration no. DL1RL2324 (TSR) and driven by the respondent no. 1/ Zafruddin and / or motor vehicle bearing registration no. DL8CAE7236 MACP No.66/19 ; Shameem @ Shameema Vs. Zafaruddin & Ors. MACP No.67/19 ; Farhana Vs. Zafaruddin & Ors.
MACP No.68/19 ; Mohd. Fahim Khan Vs. Zafaruddin & Ors. MACP No.66/19 ; Iram Vs. Zafaruddin & Ors.
MACP No.66/19 ; Tabassum Vs. Zafaruddin & Ors. Page 10 of 44(i20 car) driven by respondent no. 4/ Gaurav Panwar? (OPP) Issues No. (ii) to (vii) : same as in lead /main case MACP No. 66/19.
MACP No. 70/19(i). Whether the petitioner/ Smt. Tabassum suffered injuries in a motor vehicular accident on 27.06.2016 at 12:05 am at road no. 57, in front of Surya Hospital, Krishna Nagar, Delhi within jurisdiction of PS Krishna Nagar, Delhi due to rash and negligent driving of motor vehicle bearing registration no. DL1RL2324 (TSR) and driven by the respondent no. 1/ Zafruddin and / or motor vehicle bearing registration no. DL8CAE7236 (i20 car) driven by respondent no. 4/ Gaurav Panwar? (OPP) Issues No. (ii) to (vii) : same as in lead /main case MACP No. 66/19
9. At the outset, it is relevant to mention that during enquiry, petitioner namely Mohd. Fahim Khan expired in December 2018 and his LRs were directed to be impleaded vide order dt. 18.03.2019. Perusal of order-sheet dt. 18.03.2019 in MACP no. 66/19 reflects that petitioner was given one opportunity to implead LRs of Mohd. Fahim Khan. Noting underneath order-sheet dt. 25.04.2019 reflects that application was moved to implead LRs of the deceased but the order-sheets are silent thereafter, on the status of the application, thus, before parting with this award, speaking order was passed on that application and Ms. Shameem (wife of Late Fahim), Tazeem Khan (son of deceased Fahim), Waseem Khan (son of deceased Fahim) and Junaid Khan (son of MACP No.66/19 ; Shameem @ Shameema Vs. Zafaruddin & Ors. MACP No.67/19 ; Farhana Vs. Zafaruddin & Ors.
MACP No.68/19 ; Mohd. Fahim Khan Vs. Zafaruddin & Ors. MACP No.66/19 ; Iram Vs. Zafaruddin & Ors.
MACP No.66/19 ; Tabassum Vs. Zafaruddin & Ors. Page 11 of 44deceased Fahim) were impleaded as petitioners in place of injured Fahim and amended memo of parties was taken on record.
10. In order to establish claim in the above-referred claim petitions, four witnesses have been examined by petitioners. 10.1 Petitioner/ injured Shameem has been examined as PW1 on 15.11.2017. She deposed about the date, time and manner of accident and involvement of R1 and R4 in the same. She deposed that the TSR was being driven in a very rash and negligent manner in high speed despite repeated warnings given to R1 and further that there was route diversion into one way due to construction work and hence R1 had to take TSR on the wrong side. She also deposed that R4 was driving his vehicle in a very high speed and hit the TSR with a violent force. 10.2. Injured petitioner Mohd. Fahim Khan has been examined as PW2 on 15.12.2017 and deposed inter-alia that the road on which they were supposed to travel was blocked on the said date due to some construction and traffic was diverted towards opposite road. He also deposed about the date, time and manner of the accident and involvement of R1 and R4 in the same. He deposed that R1 was driving at a high speed in a zig zag manner and further that car was being driven by R4 in a high speed and in a rash and negligent manner. 10.3. Dr. Sanjeev Gambhir has been examined as PW3 on 15.12.2017 and his testimony is relevant qua petitioner injured Mohd. Fahim Khan as he has deposed regarding the permanent disability of Mohd. Fahim Khan, suffered due to the accident.
MACP No.66/19 ; Shameem @ Shameema Vs. Zafaruddin & Ors. MACP No.67/19 ; Farhana Vs. Zafaruddin & Ors.
MACP No.68/19 ; Mohd. Fahim Khan Vs. Zafaruddin & Ors. MACP No.66/19 ; Iram Vs. Zafaruddin & Ors.
MACP No.66/19 ; Tabassum Vs. Zafaruddin & Ors. Page 12 of 4410.4. Smt. Tabassum PW4 on 19.08.2019 deposed that on the strength of affidavit Ex.PW4/A and testified on the lines of the testimony of PW1 and PW2 regarding the manner of accident and fault on the part of R1 and R4.
11. Thereafter, PE was closed vide order dt. 09.12.2019 and matter was posted for RE.
12. Respondent no.1 Zafruddin (driver of TSR) examined himself in evidence as R1W1. Respondent 3 i.e. Insurance company of TSR led evidence. R3W1 Sh. Gaurav Kumar and R3W2 Sh. Abhay Kumar were examined in RE. No evidence was chosen to be led by R4 Gaurav Panwar. R2 Kartar Singh also did not lead any evidence on 23.11.2020 and sought time to lead evidence. Opportunity of R1, R3 and R4 to lead evidence / further evidence stood closed on 23.11.2021 and R2 was given an opportunity to lead evidence. However, as no evidence was led on behalf of R2, RE was finally closed vide order dt. 31.10.2022.
13. Documents relied in evidence by witnesses:-
PW1 relied on the following documents:-
(i) Copy of Aadhar Card Ex.PW1/A.
(ii) DAR Ex.PW1/B. PW2 relied on the following documents:-
(i) Copy of Aadhar Card Ex.PW2/A.
(ii) DAR already Ex.PW2/B. PW3 relied on the following documents:-
(i) Disability certificate Ex.PW3/A.
(ii) Assessment-sheet Ex.PW3/B. MACP No.66/19 ; Shameem @ Shameema Vs. Zafaruddin & Ors.
MACP No.67/19 ; Farhana Vs. Zafaruddin & Ors.
MACP No.68/19 ; Mohd. Fahim Khan Vs. Zafaruddin & Ors. MACP No.66/19 ; Iram Vs. Zafaruddin & Ors.
MACP No.66/19 ; Tabassum Vs. Zafaruddin & Ors. Page 13 of 44PW4 relied on the following documents:-
(i) Evidence by way of affidavit Ex.PW4/A.
(ii) Copy of Aadhar card Ex.PW4/1.
(iii) DAR Ex.PW4/2.
R1W1 relied on following documents:-
(i) Ex PW1/W1 Copy of Complaint moved before SHO, P.S> Krishna Nagar
(ii) Ex. R1W1/2, Copy of Complaint under Section 156 (3) CrPC pending before Court
(iii) Ex. R1W1/3 Copy of Driving Licence Respondent no. 3/ United India Insurance Company relied on following documents:
(i) Ex. R3W1/1 is authority letter executed in favour of R3W1.
(ii) Ex. R3Wi/2 Attested Copy of extract of Driving Licence of Zafruddin
(i) Ex. R3W2/1 is authority letter in favour of R3W2
(ii) Ex. R3W2/2 is Notice under Order 12 Rule 8 issued to R1 and R2
(iii) Ex. R3W2/3 are three postal receipts
(iv) Ex. R3W2/4 is copy of Insurance policy
(v) Ex. R3W4/5 is Advisory of Government of India
14. I have heard Sh.Rahul Thakur Ld. Counsel for Petitioners and Sh. Ankit Srivastava, Proxy Ld. counsel for petitioners; Sh. Ashok Kumar Ld. Counsel for Respondent no. 1 and 2, Sh. Arun Sheoran , Ld. Counsel for R4 / Sh. Gaurav Panwar and Sh. S. Ghosh, Ld. Counsel for MACP No.66/19 ; Shameem @ Shameema Vs. Zafaruddin & Ors. MACP No.67/19 ; Farhana Vs. Zafaruddin & Ors.
MACP No.68/19 ; Mohd. Fahim Khan Vs. Zafaruddin & Ors. MACP No.66/19 ; Iram Vs. Zafaruddin & Ors.
MACP No.66/19 ; Tabassum Vs. Zafaruddin & Ors. Page 14 of 44Respondent No.3 / insurance company. Record of the case has also been perused. Written arguments are perused.
15. Issue wise findings in all of the five claim cases are as hereunder: -
ISSUE No.1 & 2 (Common in all cases)
16. Issues No. 1 and 2 are common in all of the five claim cases bearing MACP No. 66/19, 67/19, 68/19, 69/19 & 70/19 and hence are being taken up and decided together. In an action founded on the principle of fault liability, the proof of rash and negligent driving of the offending vehicle is sine qua non. However, the standard of proof is not as strict as applied in criminal cases and evidence is tested on the touchstone of principle of preponderance of probabilities. Holistic view is to be taken while dealing with the Claim Petition based upon negligence. Strict rules of evidence are not applicable in an inquiry conducted by the Claims Tribunal. Reference may be made to the judgments titled as New India Assurance Co. Ltd. v. Sakshi Bhutani & Others., MAC APP. No. 550/2011 decided on 02.07.2012, Bimla Devi & Others v. Himachal Road Transport Corporation & Others (2009) 13 SC 530, Parmeshwari v. Amirchand & Others 2011 (1) SCR 1096 & Mangla Ram v. Oriental Insurance Company Ltd. & Others 2018, Law Suit (SC) 303. In the case in hand, at first it is being examined whether the accident in question took place and the five petitioners sustained injuries.
17. The involvement of aforesaid TSR and i20 Car in the accident is not in dispute and it is not disputed that it was a head on collision.
MACP No.66/19 ; Shameem @ Shameema Vs. Zafaruddin & Ors. MACP No.67/19 ; Farhana Vs. Zafaruddin & Ors.
MACP No.68/19 ; Mohd. Fahim Khan Vs. Zafaruddin & Ors. MACP No.66/19 ; Iram Vs. Zafaruddin & Ors.
MACP No.66/19 ; Tabassum Vs. Zafaruddin & Ors. Page 15 of 44Admittedly, the FIR was registered without inconsiderate delay and on the very next date of accident and hence, occurrence is not disputed. Number of injured petitioners is also no disputed. Petitioners have supported their claims through testimonies of witnesses and hence it is proved that the accident in question took place and all 5 petitioners sustained injuries.
18. All five petitioners are eye witnesses, three of whom have been examined as PW1, PW2 and PW4 (Smt. Shameem, Fahim and Tabassum respectively) and they have clearly deposed regarding the negligence of the drivers of both of the offending vehicles. PW1 denied the suggestion given by Ld. Counsel for R2 that accident was caused only due to negligence of R4/driver of i20 Car. She deposed further by volunteering in the next breadth that TSR driver was also at fault as he was driving the auto at fast speed. She denied the suggestion that TSR driver / R1 was driving properly and at normal speed. During cross-examination by Ld. Counsel for R4, she deposed that both of the vehicles were moving at fast speed. She denied that accident occurred only due to fault of TSR driver. PW4 also denied the suggestion given to her by Ld. Counsel for R2 that Auto driver was driving the TSR properly and at normal speed. During her cross-examination by Ld. Counsel for R1, PW4 admitted the suggestion saying that "It is correct that TSR was being driven at normal speed". However, such an admission of suggestion by PW4 does not come to the aid of R1 to R3 as in the very next line She stated "Vol. However, he was not driving properly." Further, PW1 and PW2 have clearly deposed about the negligence of R1 MACP No.66/19 ; Shameem @ Shameema Vs. Zafaruddin & Ors. MACP No.67/19 ; Farhana Vs. Zafaruddin & Ors.
MACP No.68/19 ; Mohd. Fahim Khan Vs. Zafaruddin & Ors. MACP No.66/19 ; Iram Vs. Zafaruddin & Ors.
MACP No.66/19 ; Tabassum Vs. Zafaruddin & Ors. Page 16 of 44and his TSR being at high speed and even PW4 has deposed so in her examination-in-chief. During her cross-examination, PW4 also stated at one place that initially R1 was driving his TSR rashly but when he was warned by passengers, he had started driving the TSR properly but this averment on her part does not come to the rescue of R1 and R2 as in her examination-in-chief, she has stated that despite her requests not to drive at very high speed and in a zig zag manner, R1 had not mend ways. Further, Even PW1 and PW2 have deposed that TSR driver /R1 was driving at a very fast speed and in a zig zag manner and had not mend his ways despite requests. Charge-sheet was filed against R1 after investigation in the connected criminal case. As for role of R1, eye witnesses have clearly deposed that he was negligent. R-1 has examined himself in defence and deposed that R-4 was negligent and he had made complaint before SHO in this regard. Respondent No.1 has proved on record copy of his complaint dt. 10.11.2016 as made to the SHO PS Krishna Nagar and copy of the complaint filed before the Magistrate Ex.R1W1/2. It is seen that R1 made a police complaint against R4 after about 5 months of the accident, alleging that the accident took place due to fault on the part of R4. The delay in filing complaint is not reasonably explained. R1 admitted that he did not take any legal action against IO/SHO or concerned police official about this case immediately after registration of FIR and prior to filing of complaint under Section 156 Cr.P.C. in 2019. Admittedly, FIR was registered against R1 and charge-sheet filed against him in the criminal case. He was given a suggestion by Ld. Counsel for petitioners that he was responsible for MACP No.66/19 ; Shameem @ Shameema Vs. Zafaruddin & Ors. MACP No.67/19 ; Farhana Vs. Zafaruddin & Ors.
MACP No.68/19 ; Mohd. Fahim Khan Vs. Zafaruddin & Ors. MACP No.66/19 ; Iram Vs. Zafaruddin & Ors.
MACP No.66/19 ; Tabassum Vs. Zafaruddin & Ors. Page 17 of 44accident and was deposing falsely and further that he was responsible for accident. It is an admitted case that after investigation in this criminal case, charge-sheet was filed against him. Respondent No.1 has examined himself as R1W1 and proved on record copy of his complaint dt. 10.11.2016 as made to the SHO PS Krishna Nagar and copy of the complaint filed before the Magistrate Ex.R1W1/2. Injured are independent witnesses, who had no reason to falsely implicate R-1. All of the injured examined i.e. PW1, PW2 & PW4 have deposed regarding negligence and role of R-1 in the accident. Hence, the testimony of R1W1 cannot be readily accepted.
19. Petitioners' witnesses have also clarified that there was road blockage on one side of the road due to construction work and the traffic was diverted on the other side of the road and R-1 had to take TSR on the wrong side accordingly. It is seen that the RC of the TSR shows the sitting capacity including driver to be 4 but apparently the TSR was overloaded by carrying 6 persons including driver and passengers and hence it can be readily inferred this factor also contributed to the large scale damage, where as many as 5 passengers got injured. This further points to the negligence on the part of TSR driver who permitted more passengers to be seated in his vehicle and invited danger to their person.
20. It is not disputed that after detailed investigation of the case, respondent no.1 was charge-sheeted for causing injuries to the petitioners by driving the offending vehicle rashly and negligently. Moreover, in motor vehicular accident claims, contents of charge sheet are admissible in evidence and deemed to be correct under Rule 7 of MACP No.66/19 ; Shameem @ Shameema Vs. Zafaruddin & Ors. MACP No.67/19 ; Farhana Vs. Zafaruddin & Ors.
MACP No.68/19 ; Mohd. Fahim Khan Vs. Zafaruddin & Ors. MACP No.66/19 ; Iram Vs. Zafaruddin & Ors.
MACP No.66/19 ; Tabassum Vs. Zafaruddin & Ors. Page 18 of 44Delhi Motor Accident Tribunal Rules, 2008. Thus, the facts that FIR has been registered and charge sheet has also been filed against the respondent no.1 by the police, are sufficient proof to conclude that respondent no.1 was negligent. Reliance is placed upon the judgment of Hon'ble Delhi High Court in the case titled as Shabina v. Satvir & Ors. MAC. APP. 980/17 dated 24.01.2020, wherein Hon'ble Delhi High Court observed that in so far as FIR has been registered, criminal case has been initiated against driver of offending vehicle and vehicle was seized, the requirement of proving the preponderance of probability of accident having been caused by rash and negligent driving of the offending vehicle has been established. In the aforesaid case, Hon'ble Delhi High Court referred to the judgment titled as National Insurance Company Pvt. Ltd. v. Smt. Pushpa Rana & Ors. (2008) 101 DRJ 645, wherein it was observed:
"12. 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 Supreme Court in Oriental Insurance Co. Ltd. Vs. Meena Variyal: 2007 (5) SCALE 269. 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. 955/2004, pertaining to involvement of the offending vehicle, (ii) Criminal record showing completion of investigation of police and issue of charge sheet under Section 279/304-A IPC 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 the deceased. These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under Motor MACP No.66/19 ; Shameem @ Shameema Vs. Zafaruddin & Ors. MACP No.67/19 ; Farhana Vs. Zafaruddin & Ors. MACP No.68/19 ; Mohd. Fahim Khan Vs. Zafaruddin & Ors. MACP No.66/19 ; Iram Vs. Zafaruddin & Ors.MACP No.66/19 ; Tabassum Vs. Zafaruddin & Ors. Page 19 of 44
Vehicles 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 of the appellant also falls face down. There is ample evidence on record to prove negligence on the part of driver."
21. It is seen that PW1 was not cross-examined on behalf of the driver of the offending vehicle/R1 and thus her testimony in so far as role of R1 is concerned, remains unchallenged by him.
22. As far as the role of R-4 in the accident is concerned, it is seen that in the state case, made on the complaint of his, R-1 was charge-sheeted as an accused and IO concluded rash and negligence on the part of R-1. It is further seen that at the stage of investigation, statement of injured Mohd. Fahim Khan, Shameem and Tabassum were recorded by the IO and these statements are part of the charge-sheet attached with the DAR and in their statements, all of them stated that when three wheelers in which they were traveling reached at Surya hospital, driver of the car bearing no DL-8CAE-7236 brought his car from front and hit the three-wheeler forcefully. Even during their depositions before Tribunal, all three of them deposed consistently regarding the fault on the part of informant / R-4 / driver of i20 car involved in the accident. PW1 deposed that R-4 was driving the car at a very high speed and came from front & hit the TSR with violent force. During her cross-examination, she deposed that she had seen the i20 car which was coning from opposite side at very high speed. PW1 denied that the TSR was going on the wrong side of the road at the time of accident and all three witnesses have deposed regarding blockage of road on one side due to construction and diversion of the traffic on the other MACP No.66/19 ; Shameem @ Shameema Vs. Zafaruddin & Ors. MACP No.67/19 ; Farhana Vs. Zafaruddin & Ors.
MACP No.68/19 ; Mohd. Fahim Khan Vs. Zafaruddin & Ors. MACP No.66/19 ; Iram Vs. Zafaruddin & Ors.
MACP No.66/19 ; Tabassum Vs. Zafaruddin & Ors. Page 20 of 44side and in the charge-sheet prepared by the IO in the state case, there is specific mention of diversion in the site plan itself and there is nothing in the cross-examination of PWs to assails the testimonies on the point of diversion of traffic. Charge-sheet reflects that during investigation itself, R-1 had disclosed to the IO regarding diversion of traffic. The charge-sheet is completely silent on the point of any investigation made by IO as to whether there was any allowed diversion of traffic on the wrong side of the road, in the wake of the right side being closed due to construction. Hence, the Tribunal is left with no choice but to consider the testimonies of PW1 and PW3 in this regard. PW1 has clearly denied the suggestion that TSR was being driven on the wrong side. When there is traffic diversion on the other side of the road in case of a two-way road, when one way is closed due to construction, the vehicles permitted to be diverted to the other side of the road, cannot be called to be driving on the wrong side as the circumstance is special and there is permissive use of one road by both sides traffic. No evidence has been led on behalf of R-4 or R-3 to prove otherwise then as deposed by PW1 to PW3. There is nothing brought on record to suggest that there was no diversion of both sides traffic on the road where both TSR and i20 car were plying. In their evidence by way of affidavit Ex. PW/1, Ex. PW2/2 and Ex. PW1/4, PW1, PW2 and PW4 have stated that one side road was blocked near Surya Hospital due to construction work and the way was converted into one way and R-1 had to take TSR into wrong side. PW1, PW2 and PW4 have though not used the best words to explain themselves, it is amply clear through their testimonies that they expressed that on account of MACP No.66/19 ; Shameem @ Shameema Vs. Zafaruddin & Ors. MACP No.67/19 ; Farhana Vs. Zafaruddin & Ors.
MACP No.68/19 ; Mohd. Fahim Khan Vs. Zafaruddin & Ors. MACP No.66/19 ; Iram Vs. Zafaruddin & Ors.
MACP No.66/19 ; Tabassum Vs. Zafaruddin & Ors. Page 21 of 44blockage of one side of the road, the other side of the two way road accommodated the traffic flow from both sides and there was traffic diversion on one side of the road. PW1 has clearly deposed in his cross-examination by Ld. Counsel for R-3 that "It is correct that the road on which we were supposed to travel was blocked on account of some construction and the traffic was diverted towards the opposite road". PW2 During cross-examination by Ld. Counsel for R-3 deposed that "It is correct that road on which we were supposed to travel was blocked on account of some construction and the traffic was diverted towards the other side". PW4 denied the suggestion given by counsel for R-4 that he was not at fault as he has got the criminal case registered against the TSR driver and she denied the suggestion that accident was caused only due to fault of TSR driver or that PW4 was not driving in a rash and negligent manner and that he was driving at a normal speed or that he had not hit the TSR. The testimonies of PW1, PW2 and PW4 clearly point to the negligence of R-4 in the head on collision with the TSR. Ld. Counsel for R-3 has laid stress on the fact that in the FIR itself, it is mentioned by R-4 that his car was damaged by the public and he was beaten up by the public and this points out to the fault of R-4 alone in the accident. The contents of FIR show that R-4 mentions in his complaint to the police at the time of lodging of FIR that the public persons gathered at the spot had given beating to him and his car was damaged with brick and stone blows. It is seen that none of the public persons stated to have been engaged in causing damage to vehicle of R-4 and giving of beatings to him were brought and examined before the MACP No.66/19 ; Shameem @ Shameema Vs. Zafaruddin & Ors. MACP No.67/19 ; Farhana Vs. Zafaruddin & Ors.
MACP No.68/19 ; Mohd. Fahim Khan Vs. Zafaruddin & Ors. MACP No.66/19 ; Iram Vs. Zafaruddin & Ors.
MACP No.66/19 ; Tabassum Vs. Zafaruddin & Ors. Page 22 of 44Tribunal. I am of the considered view that public sentiments and act of a mob, may be actuated and guided by the factum of sustaining of injuries by the victims, more than any other factor and further merely because the car of R-4 was got damaged by public and he was manhandled, this fact is no where and does not lead to any conclusion against R-1. However, the testimonies of eye witnesses are intact on the point of negligence of R-4 and cannot be ignored. It is relevant here to mention that in her cross-examination by Ld. Counsel for R-2, PW4 / Tabassum admitted that R-4 was in drunken condition at the time of accident. The MLC of R-4 is part of DAR and does not reflect that he was in drunken condition and there is no merit in such a plea taken for the first time by Ld. Counsel for R-1 and R-2 at the stage of final arguments. In their written statement as well, no such plea has been taken and none of the petitioners have stated so in their claim petitions or examination-in-chief and PW4 only accepted the suggestion of Ld. Counsel for R-2 in this regard during her cross-examination. while no such fact has been disclosed by her in her examination-in-chief by way of affidavit Ex.PW4/1.
23. On considering the afore-said testimonies of sole eye-witness, the police investigation report and the supporting material on record, it is found that the manner of accident and involvement of both of the offending vehicles are duly proved. In view of this Court, aforesaid material is found sufficient to establish that the accident had occurred due to rash and negligent driving of Car and TSR in question by respondent no.4 and Respondent no.1 respectively, resulting into MACP No.66/19 ; Shameem @ Shameema Vs. Zafaruddin & Ors. MACP No.67/19 ; Farhana Vs. Zafaruddin & Ors.
MACP No.68/19 ; Mohd. Fahim Khan Vs. Zafaruddin & Ors. MACP No.66/19 ; Iram Vs. Zafaruddin & Ors.
MACP No.66/19 ; Tabassum Vs. Zafaruddin & Ors. Page 23 of 44injuries to all five passengers in the TSR i.e. Petitioners namely Shameem @Mohd. Fahim Khan, Farhana, deceased Fahim, Baby Iram and Tabassum. It is clear that there was composite negligence of R-1 and R-4. Therefore, issue no.1 and 2 are decided in favour of the petitioner/s and against all of the respondents.
ISSUE NO. 3:
Whether the R1 was holding a valid driving license to drive three wheeler scooter (TSR) on the date of accident? (OPR1)
24. R3W2 has pointed out from point X to X1 in the document Ex. R3W2/4 (insurance policy) stating the lack of commercial licencse to be the violation of policy condition in this case and Ld. Counsel for R-3 argued that this document talks about the need for driver to have a valid driving licence for the vehicle to be covered under the policy. R-1 / Zafaruddin proved on record his driving license Ex.R1W1/3. R1 denied that he was not having a valid driving license to drive the TSR bearing Registration No. DL-1RL-2324. Suggestion was given to him that the license was illegally issued but there is no evidence lead by R3 to suggest that the driving license Ex.R1W1/3 is fake. R1 also denied that he was solely responsible for causing the accident. R3W1 has proved on record that the license of R1 Ex.R1W1/3 was valid for driving LMV (non-transport) and motorcycle with gear for the period of 27-12-2013 to 09.04.2027, which means that this license was valid on the date of accident. Now, it has to be seen whether the license R1W1/3 also gave an authority to R1 to drive a commercial TSR. Ld. Counsel for R-1 and R-2 relied on the judgment Mukund Dewangan vs. Oriental Insurance MACP No.66/19 ; Shameem @ Shameema Vs. Zafaruddin & Ors. MACP No.67/19 ; Farhana Vs. Zafaruddin & Ors.
MACP No.68/19 ; Mohd. Fahim Khan Vs. Zafaruddin & Ors. MACP No.66/19 ; Iram Vs. Zafaruddin & Ors.
MACP No.66/19 ; Tabassum Vs. Zafaruddin & Ors. Page 24 of 44Co. Ltd, Civil Appeal No. 5826 of 2011 decided on 03.07.2017, V (2017) SLT 712 and stated that as R-1 had valid driving license for LMV, commercial DL was not required. On the other hand, Ld. Counsel for R- 3 stated that commercial DL and badge are required for TSR and hence merely having LMV driving licence would not suffice and give authority to the person holding the license to drive a TSR and that the judgment above-mentioned does not apply to the facts of the present case.
25. In the case in hand, offending vehicle being driven by R-1 is TSR, which is a 3 wheels vehicle, especially designed to carry 3 passengers. In order to ply a TSR on road, permit is required and further driver of the TSR is required to have a badge. In the judgment Mukund Dewangan (Supra), it has been held that in order to ply LMV of the same class, a person does not require a separate commercial licence. Now it has to be seen, whether TSR falls under the head of LMV. LMV is defined in the Motors Vehicles Act, as a Transport vehicle or Omni bus, the gross vehicle weight of either of which or a motor car or tractor or road-roller, the unladen weight any of which, does not exceed 7,500/- kilograms. Further, transport vehicle has been defined as a public service vehicle, a goods carriage, educational institution bus, or a private service vehicle and hence from the definitions, it is clear that TSR also falls under the category of LMV. Hence, driving licence of R-1 is sufficient to sustain a claim of insurance and as per the above-quoted judgment, no separate commercial licence is required.
26. In view of this Court, issue no.3 is decided in favour of R-1 & R-2.
MACP No.66/19 ; Shameem @ Shameema Vs. Zafaruddin & Ors. MACP No.67/19 ; Farhana Vs. Zafaruddin & Ors.
MACP No.68/19 ; Mohd. Fahim Khan Vs. Zafaruddin & Ors. MACP No.66/19 ; Iram Vs. Zafaruddin & Ors.
MACP No.66/19 ; Tabassum Vs. Zafaruddin & Ors. Page 25 of 44ISSUE NO. 4 :
Whether the vehicle bearing registration no. DL1RL2324 (TSR) was being used on the public road in breach of any condition of insurance policy? (OPR3)
27. Coming to the stand taken by insurance company regarding the offending TSR being overloaded and in violation of the conditions of RC, permit and insurance, at first it is seen that carrying of any extra passengers does not only violate the condition of permit, it is also a violation of the condition of RC. The original RC of the TSR is part of DAR which is relied in the testimony of PW1, PW2 and PW4. R-3 has examined two witnesses in support of defence i.e. R3W1 Sh. Gaurav Kumar and R3W2 Abhay Kumar. R-3 has placed on record the true copy of insurance policy which is Ex.R3W2/4. In the insurance policy Ex.R3W2/4 under the head limitation as to use, it is specified "the policy covers use only under a permit within the meaning of Motor Vehicles Act 1998.." At the same time, it cannot be lost sight of that R-1 as a TSR driver was supposed to be having a badge and without a commercial licence with endorsement TSR over the same, he could not be issued a badge. In the case in hand, R-1 was challaned for permit violation and he was not having badge and further he was carrying extra passengers. Permit of TSR is neither filed with DAR nor by R-1 and R-2. In the copy of charge-sheet as well as written statement filed before the Tribunal by R-1 and R-2, it is not attached and there is nothing to reflect that the TSR had a valid permit. Unfortunately, the question regarding no permit did not crop-up during entire inquiry and recording of evidence and when MACP No.66/19 ; Shameem @ Shameema Vs. Zafaruddin & Ors. MACP No.67/19 ; Farhana Vs. Zafaruddin & Ors.
MACP No.68/19 ; Mohd. Fahim Khan Vs. Zafaruddin & Ors. MACP No.66/19 ; Iram Vs. Zafaruddin & Ors.
MACP No.66/19 ; Tabassum Vs. Zafaruddin & Ors. Page 26 of 44query was raised by the undersigned in this regard, no satisfactory answer was given on behalf of R-1 and further R-2 never led evidence in this regard. In any case, even if it is presumed for the sake of arguments that R-2 had valid permit with respect to the TSR, it does not absolve him and the driver from the responsibility to see that TSR is driven only as per the permit and RC condition and there is no violation. The number of passengers in the TSR is not disputed by any of the parties to the claim petitions and further it is seen that a separate Kalandra was prepared for offence u/s 125/177 and 66/192 M.V. Act, as reflected in the charge-sheet. It is seen that prima-facie there was an obstruction to driver / R-1 and there is hint that one of the passengers was sitting close to him. Hence, in view of the discussion above, issue No. 4 is decided against R-1 and R-2.
ISSUE NO. 5 :
Whether the petitioner is entitled to compensation, if so, to what amount and from whom? (OPP)
28. Section 168 of the Act enjoins the Claims Tribunal to hold an inquiry into the claim to make an award determining the amount of compensation which appears to be just and reasonable. It has to be borne in mind that the compensation is not expected to be a windfall or a bonanza nor it should be pittance.
(MACP No. 66/19 : In re- Shameem Vs. Zafaruddin & Ors.) MEDICAL EXPENSES
29. Petitioner Shameem (PW1) deposed that she incurred expenses of Rs. 20,000/- on her treatment but not a single medical bill MACP No.66/19 ; Shameem @ Shameema Vs. Zafaruddin & Ors. MACP No.67/19 ; Farhana Vs. Zafaruddin & Ors.
MACP No.68/19 ; Mohd. Fahim Khan Vs. Zafaruddin & Ors. MACP No.66/19 ; Iram Vs. Zafaruddin & Ors.
MACP No.66/19 ; Tabassum Vs. Zafaruddin & Ors. Page 27 of 44was placed and proved on record. Her MLC is part of DAR and reflects that she was treated in a Govt hospital i.e. GTB Hospital and as per clinical and radiological records, the nature of injuries was opined as simple. There is nothing brought on record by Shameem to show that she incurred any expenses over her treatment in GTB Hospital. There is no medical document to suggest that petitioner was treated subsequently in any other hospital. She was referred to GTB Hospital from Surya Hospital but no document of Surya Hospital has been placed on record. Under this head, only original medical bills are reimbursed. Hence, no amount as compensation is being granted under this head. PAIN & SUFFERING
30. Petitioner Shameem is stated to have sustained injuries and her MLC reflects that she had tenderedness major bridge region and right hip region and was prescribed injections. She was a case of referral from Surya Hospital for further management. She must have remained under some pain for at least 2-3 days. Considering the overall facts and circumstances of the case, interest of justice would be served if the petitioner Shameem is awarded a lump sum compensation of Rs.5,000/- for pain and suffering on account of the accident. LOSS OF INCOME
31. Petitioner has claimed that she was doing a private business and earning Rs. 12,000/- per month but unable to continue her work due to this accident. She did not explain as to how the injuries sustained had any role in any loss of income to her. She has not brought on record any evidence to reflect on her educational qualification and the nature of MACP No.66/19 ; Shameem @ Shameema Vs. Zafaruddin & Ors. MACP No.67/19 ; Farhana Vs. Zafaruddin & Ors.
MACP No.68/19 ; Mohd. Fahim Khan Vs. Zafaruddin & Ors. MACP No.66/19 ; Iram Vs. Zafaruddin & Ors.
MACP No.66/19 ; Tabassum Vs. Zafaruddin & Ors. Page 28 of 44business claimed to being run by her. There is no evidence led to show that petitioner was working. There is nothing to suggest that due to the injuries sustained the petitioner was incapaciated even to do household work. The accident took place on 27.06.2016 and there is nothing in MLC to suggest that the petitioner was admitted in the hospital. Hence, no sum of money is granted under this head.
CONVEYANCE, SPECIAL DIET & ATTENDANT CHARGES
32. The petitioner has not placed on record and proved any document to show that she visited the hospital again or even to suggest that she paid for the conveyance while being carried from Surya Hospital to GTB Hospital. Her MLC suggests that she was carried by CATs ambulance and there is nothing on record to show that any conveyance expenses were borne by her. Further, she has not explained as to how for simple injuries she needed or hired an attendant. Hence, a sum of Rs.2000/- is being granted towards special diet and conveyance and no compensation is being granted towards attendant charges.
33. Thus, the compensation awarded to the petitioner Shameem is summarized as under:-
Sl. No. Head of compensation Amount
1. Medical Expenses. Nil.
2. Pain & Suffering. Rs.5,000/-
Loss of income (during Nil.
3.
treatment).
4. Conveyance and Special Diet Rs.2000/-
5. Attendant Charges Nil.
TOTAL Rs.7,000/-
MACP No.66/19 ; Shameem @ Shameema Vs. Zafaruddin & Ors. MACP No.67/19 ; Farhana Vs. Zafaruddin & Ors.
MACP No.68/19 ; Mohd. Fahim Khan Vs. Zafaruddin & Ors. MACP No.66/19 ; Iram Vs. Zafaruddin & Ors.
MACP No.66/19 ; Tabassum Vs. Zafaruddin & Ors. Page 29 of 44(MACP No. 67/19 : In re- Farhana Vs. Zafaruddin & Ors.) MEDICAL EXPENSES
34. Medical examination report of Farhana is part of DAR which reflects that she was conscious at the time of examination and had minor abrasion on foot and she had reported pain on right leg. No medical bills or document has been placed on record by Farhana to show the treatment undertaken. Under this head, only original medical bills are reimbursed. Hence no amount as compensation is being granted under this head. PAIN & SUFFERING
35. There is nothing to suggest that petitioner Farhana was prescribed any medicines for minor abrasion on her foot and pain. However, considering that the petitioner Farhana had reported pain in leg to the doctor and further considering that she was taken to hospital and thought it necessary to get herself medically examined (some amount of harassment to her, howsoever little can be assumed). Hence, a token amount of Rs. 2000/- is awarded to petitioner Farhana for pain and suffering on account of the accident.
LOSS OF INCOME
36. Petitioner Farhana has not led any evidence to show any loss of income. There is nothing to suggests that she was admitted in the hospital even for a day. Hence, no compensation is being granted to her under above-stated heads.
CONVEYANCE, SPECIAL DIET & ATTENDANT CHARGES
37. There is nothing in the MLC of Farhana or testimonies of witnesses to suggest that she was rendered any free services by police or MACP No.66/19 ; Shameem @ Shameema Vs. Zafaruddin & Ors. MACP No.67/19 ; Farhana Vs. Zafaruddin & Ors.
MACP No.68/19 ; Mohd. Fahim Khan Vs. Zafaruddin & Ors. MACP No.66/19 ; Iram Vs. Zafaruddin & Ors.
MACP No.66/19 ; Tabassum Vs. Zafaruddin & Ors. Page 30 of 44CATs or anyone else for visiting Hospital. Hence, an inference can be drawn that she must incurred some expenses on her visit to hospital. She has not explained as to how for simple injuries she needed or hired an attendant. No special diet was prescribed in the MLC and there is nothing on the medical documents to suggest that any special diet was needed for the injuries sustained by the petitioner. Hence, a sum of Rs.2000/- is being granted towards conveyance expenses and special diet and no compensation is being granted towards attendant charges.
38. Thus, the compensation awarded to the petitioner Farhana is summarized as under:-
Sl. No. Head of compensation Amount
1. Medical Expenses. Nil.
2. Pain & Suffering. Rs.2,000/-
Loss of income (during Nil.
3.
treatment).
4. Conveyance and Special Diet Rs.2000/-
5. Attendant Charges Nil.
TOTAL Rs.4,000/-
(MACP No. 68/19 : In re- Mohd. Fahim Khan Vs. Zafaruddin & Ors.) MEDICAL EXPENSES
39. Copy of MLC of late Mohd. Fahim Khan is part of DAR and reflects that he was treated in a Govt hospital i.e. GTB Hospital and as per opinion of radiologist, the nature of injuries ('NOI') was 'simple' as per the orthopaedic opinion. The original MLC was never produced before the court and no expert witness was examined to show that the MACP No.66/19 ; Shameem @ Shameema Vs. Zafaruddin & Ors. MACP No.67/19 ; Farhana Vs. Zafaruddin & Ors.
MACP No.68/19 ; Mohd. Fahim Khan Vs. Zafaruddin & Ors. MACP No.66/19 ; Iram Vs. Zafaruddin & Ors.
MACP No.66/19 ; Tabassum Vs. Zafaruddin & Ors. Page 31 of 44nature of injuries sustained by Fahim was grievous in nature. No medical document of Fahim was produced to show that he sustained any grievous injuries in the accident. No X-ray report has been produced or proved on record either. Mohd. Fahim Khan examined himself as PW2 and relied on only his aadhar card and DAR. He deposed in his testimony dated 15.12.2017 that he has incurred Rs.50,000/- on his treatment and was still under treatment and has hired an attendant and pays him Rs.10,000/- per month. However, strangely there is no evidence led by him in support of such a tall claim. From year 2016 till October 2023, he did not place on record any medical document to show any continued treatment or incurring of expenses. Interestingly, it is seen that though as per the MLC, the nature of injuries sustained by him was simple and there is no medical document and prescription to suggest otherwise, the testimony of PW3 doctor Sanjeev Gambhir from LBS Hospital, Khichripur reflects that the disability certificate dated 06.08.2017 Ex.P3/A was issued to the petitioner and he was reported to be having fracture of proximal tibia right leg and 27% permanent disability was assessed in relation to his right lower limb. It also shows that Disability Board had got done X-ray and seen X-ray report showing healed fracture of proximal tibia right leg. The assessment sheet is Ex.PW3/B. PW3 deposed that the treatment record of the patient was not available and MLC was studied and further that X-ray of right leg of the patient was done on his request and disability was assessed as per the X-ray report of LBS Hospital and clinical examination which reflected that it was a case of healed fracture. PW3 deposed that no treatment record of Fahim was MACP No.66/19 ; Shameem @ Shameema Vs. Zafaruddin & Ors. MACP No.67/19 ; Farhana Vs. Zafaruddin & Ors.
MACP No.68/19 ; Mohd. Fahim Khan Vs. Zafaruddin & Ors. MACP No.66/19 ; Iram Vs. Zafaruddin & Ors.
MACP No.66/19 ; Tabassum Vs. Zafaruddin & Ors. Page 32 of 44submitted and patient had provided only MLC. He deposed that "It is correct that in MLC provided by the patient, there is no evidence of any fracture and the opinion with regard to the nature of the injury has been stated to be simple". PW3 admitted that in the MLC of petitioner Fahim, there is no evidence of any fracture and opinion with regard to the injuries is stated to be simple. He was put a specific query whether in absence of any other treatment record, could he infer on the basis of MLC that disability assessed by him on account of injuries sustained in the accident dated 27.06.2016 and he answered that the MLC was not prepared by his hospital and he could not comment on the nature of injuries. Hence, once apart from the MLC, no other medical document of petitioner prepared pursuant to accident and during treatment has been placed on record to show that he sustained grievous injuries and there is nothing to suggest that petitioner Fahim underwent any further treatment other than that as recorded on his MLC, no inference could be drawn that the fracture seen in the X-ray done by on instruction of the disability Board after more than one year of accident, directly related to the injuries sustained by petitioner in the accident. The copy of aadhar card of Mohd. Fahim Khan reflects that he born on 01.01.1943 and hence he was about 73 years old at the time of accident. PW3 has nowhere stated that old healed fracture as seen the X-ray report and clinically examination could be co-related to the accident and the medical paper / MLC of petitioner prepared pursuant to the accident. Hence, in the absence of any cogent evidence to connect the disability as shown in the report Ex. PW3/A to the accident, the nature of injuries sustained by MACP No.66/19 ; Shameem @ Shameema Vs. Zafaruddin & Ors. MACP No.67/19 ; Farhana Vs. Zafaruddin & Ors.
MACP No.68/19 ; Mohd. Fahim Khan Vs. Zafaruddin & Ors. MACP No.66/19 ; Iram Vs. Zafaruddin & Ors.
MACP No.66/19 ; Tabassum Vs. Zafaruddin & Ors. Page 33 of 44petitioner Fahim has to be considered as simple. The final opinion in MLC is not challenged by the petitioner Mohd. Fahim Khan. There is nothing brought on record by Fahim to show that he incurred any expenses over his treatment in GTB Hospital. He was treated in GTB Hospital and no medical document of his other than MLC has been placed on record. MLC is part of DAR. There is nothing brought on record to suggest that any medical expenses were borne by Fahim during his treatment in GTB Hospital. Under this head, only original medical bills are reimbursed. Hence no amount as compensation is being granted under this head.
PAIN & SUFFERING
40. Petitioner Fahim is stated to have sustained injuries and his MLC reflects that he had abrasion over anterior aspect of left leg and multiple abrasions over anterior in respect of right knee with swelling. He must have remained under some pain.
41. However, Ld. Counsel for insurance company submitted during arguments that no amount is payable under this head as pain & suffering is personal and as Mr. Fahim is no longer in this world, no amount should be paid in this case as compensation. In Oriental Insurance Company Limited Vs Kahlon Alias Jasmail Singh Kahlon, (deceased) through his legal representative Narinder Kahlon Gosakan and Anr. Civil Appeal no. 4800 of 2021 (Arising out of SLP © no. 2873 of 2021, decided on 16.08.2021, it has been held in Paragraph no. 21 that the compensation under the head pain and suffering is personal injury and hence claim under the said head is not payable to legal MACP No.66/19 ; Shameem @ Shameema Vs. Zafaruddin & Ors. MACP No.67/19 ; Farhana Vs. Zafaruddin & Ors.
MACP No.68/19 ; Mohd. Fahim Khan Vs. Zafaruddin & Ors. MACP No.66/19 ; Iram Vs. Zafaruddin & Ors.
MACP No.66/19 ; Tabassum Vs. Zafaruddin & Ors. Page 34 of 44representatives. Hence, no compensation is granted to the legal heirs of Mohd. Fahim Khan (who have been substituted as petitioners in MACP No.68/19 is being given under this head as compensation. LOSS OF INCOME
42. Petitioner has claimed that he was doing a private business and earning Rs. 15,000/- per month but unable to continue his work due to this accident. He did not explain as to how the injuries sustained had any role in any loss of income to his. He has not brought on record any evidence to reflect on his educational qualification and the nature of business claimed to being run by him. There is no evidence led to show that petitioner was working at the age of 73. There is nothing to suggest that due to the injuries sustained the petitioner was incapaciated even to do household work. The accident took place on 27.06.2016 and there is nothing in MLC to suggest that the petitioner was admitted in the hospital. Hence, no sum of money is granted under this head. CONVEYANCE, SPECIAL DIET & ATTENDANT CHARGES
43. The petitioner has not placed on record and proved any document to show that he visited the GTB hospital again. MLC reflects that he was taken to Hospital by some 'Shakir'. There is nothing in his MLC or testimonies of witnesses to suggest that he was rendered any free services by police or CATs or anyone else for visiting Hospital. Hence, an inference can be drawn that he must have incurred some expenses on his visit to hospital. He has not explained as to how for simple injuries he needed or hired attendant. No special diet was prescribed in the MLC and there is nothing on the medical documents to MACP No.66/19 ; Shameem @ Shameema Vs. Zafaruddin & Ors. MACP No.67/19 ; Farhana Vs. Zafaruddin & Ors.
MACP No.68/19 ; Mohd. Fahim Khan Vs. Zafaruddin & Ors. MACP No.66/19 ; Iram Vs. Zafaruddin & Ors.
MACP No.66/19 ; Tabassum Vs. Zafaruddin & Ors. Page 35 of 44suggest that any special diet was needed for the injuries sustained by the petitioner. Hence, a sum of Rs.2000/- is being granted towards conveyance expenses and special diet and no compensation is being granted towards attendant charges.
44. Thus, the compensation awarded to the LRs of the petitioner Fahim is summarized as under:-
Sl. No. Head of compensation Amount
1. Medical Expenses. Nil.
2. Pain & Suffering. Nil.
Loss of income (during Nil.
3.
treatment).
4. Conveyance and Special Diet Rs.2000/-
5. Attendant Charges Nil.
TOTAL Rs.2,000/-
(MACP No. 69/19 : In re- Iram Vs. Zafaruddin & Ors.) MEDICAL EXPENSES
45. Petitioner Baby Iram (aged 12 years) has not examined herself or any other witnesses in evidence to show any expenses incurred on her medical treatment. Under this head, only original medical bills are reimbursed. Hence, no amount as compensation is being granted under this head.
PAIN & SUFFERING
46. Petitioner Iram is stated to have sustained injuries and her MLC reflects that a lacerated wound of 3cm X 2 cm over forehead was observed by doctor and she was prescribed injections. She was a case of referral from Surya Hospital for further management. She must have MACP No.66/19 ; Shameem @ Shameema Vs. Zafaruddin & Ors. MACP No.67/19 ; Farhana Vs. Zafaruddin & Ors.
MACP No.68/19 ; Mohd. Fahim Khan Vs. Zafaruddin & Ors. MACP No.66/19 ; Iram Vs. Zafaruddin & Ors.
MACP No.66/19 ; Tabassum Vs. Zafaruddin & Ors. Page 36 of 44remained under pain for at least 2-3 days. Considering the overall facts and circumstances of the case, interest of justice would be served if the petitioner Iram is awarded a lump sum compensation of Rs.5,000/- for pain and suffering on account of the accident.
LOSS OF INCOME & ATTENDANT CHARGES
47. Petitioner was a minor girl aged 12 years (as mentioned in the MLC) and no loss of income is claimed by her. She sustained simple injuries and there no question for any attendant charges. Hence, no sum of money is granted under this head.
CONVEYANCE, SPECIAL DIET
48. The petitioner has not placed on record and proved any document to show that she visited the hospital again or even to suggest that she paid for the conveyance while being carried from Surya Hospital to GTB Hospital. Her MLC suggest that she was carried by CATs ambulance and there is nothing on record to show that any conveyance expenses were borne by her or any special diet was prescribed for her. Hence, a sum of Rs.2000/- is being granted towards conveyance expenses and special diet.
49. Thus, the compensation awarded to the petitioner Baby Iram is summarized as under:-
Sl. No. Head of compensation Amount
1. Medical Expenses. Nil.
2. Pain & Suffering. Rs.5,000/-
Loss of income (during Nil.
3.
treatment).
4. Conveyance and Special Diet Rs.2000/-
5. Attendant Charges Nil.
MACP No.66/19 ; Shameem @ Shameema Vs. Zafaruddin & Ors. MACP No.67/19 ; Farhana Vs. Zafaruddin & Ors.
MACP No.68/19 ; Mohd. Fahim Khan Vs. Zafaruddin & Ors. MACP No.66/19 ; Iram Vs. Zafaruddin & Ors.
MACP No.66/19 ; Tabassum Vs. Zafaruddin & Ors. Page 37 of 44TOTAL Rs.7,000/-
(MACP No. 70/19 : In re- Tabassum Vs. Zafaruddin & Ors.) MEDICAL EXPENSES
50. Petitioner Tabassum (PW4) deposed that she incurred expenses of Rs.25,000/- on her treatment but not a single medical bill was placed and proved on record. Her MLC is part of DAR and reflects that she was treated in a Govt hospital i.e. GTB Hospital and as per clinical and radiological records, the nature of injuries was opined as simple. There is nothing brought on record by Tabassum to show that she incurred any expenses over her treatment in GTB Hospital. She was referred to GTB Hospital from Surya Hospital but no document of Surya Hospital has been placed on record. Under this head, only original medical bills are reimbursed. Hence no amount as compensation is being granted under this head.
PAIN & SUFFERING
51. Petitioner Tabassum is stated to have sustained injuries and her MLC reflects that she had swelling over nose, abrasion over right leg was prescribed injections. She was a case of referral from Surya Hospital for further management. She must have remained under pain for at least 2-3 days. Considering the overall facts and circumstances of the case, interest of justice would be served if the petitioner Tabassum is awarded a lump sum compensation of Rs.5,000/- for pain and suffering on account of the accident.
MACP No.66/19 ; Shameem @ Shameema Vs. Zafaruddin & Ors. MACP No.67/19 ; Farhana Vs. Zafaruddin & Ors.
MACP No.68/19 ; Mohd. Fahim Khan Vs. Zafaruddin & Ors. MACP No.66/19 ; Iram Vs. Zafaruddin & Ors.
MACP No.66/19 ; Tabassum Vs. Zafaruddin & Ors. Page 38 of 44LOSS OF INCOME
52. Petitioner has claimed that she was doing a private business and earning Rs. 14,000/- per month but unable to continue her work due to this accident. She did not explain as to how the injuries sustained had any role in any loss of income to her. She has not brought on record any evidence to reflect on her educational qualification and the nature of business claimed to being run by her. There is no evidence led to show that petitioner was working. There is nothing to suggest that due to the injuries sustained the petitioner was incapaciated even to do household work due to injuries sustained. The accident took place on 27.06.2016 and there is nothing in MLC to suggest that the petitioner was admitted in the hospital even for a day. Hence, no sum of money is granted under this head.
CONVEYANCE, SPECIAL DIET & ATTENDANT CHARGES
53. The petitioner has not placed on record and proved any document to show that she visited the hospital again or even to suggest that she paid for the conveyance while being carried from Surya Hospital to GTB Hospital. Her MLC suggest that she was carried by CATs ambulance and there is nothing on record to show that any conveyance expenses were borne by her. Further, she has not explained as to how for simple injuries she needed or hired attendant. Hence, a sum of Rs.2000/- is being granted towards conveyance expenses and special diet and no compensation is being granted towards attendant charges.
54. Thus, the compensation awarded to the petitioner Tabassum is summarized as under:-
MACP No.66/19 ; Shameem @ Shameema Vs. Zafaruddin & Ors. MACP No.67/19 ; Farhana Vs. Zafaruddin & Ors. MACP No.68/19 ; Mohd. Fahim Khan Vs. Zafaruddin & Ors. MACP No.66/19 ; Iram Vs. Zafaruddin & Ors.MACP No.66/19 ; Tabassum Vs. Zafaruddin & Ors. Page 39 of 44
Sl. No. Head of compensation Amount
1. Medical Expenses. Nil.
2. Pain & Suffering. Rs.5,000/-
Loss of income (during Nil.
3.
treatment).
4. Conveyance and Special Diet Rs.2000/-
5. Attendant Charges Nil.
TOTAL Rs.7,000/-
LIABILITY :
55. Now, the question arises as to which of the respondents is liable to pay the compensation amount. It is seen that Tribunal has already given a finding that both R-1 and R-4 were driving the vehicle in a rash and negligent manner and hence, now it is to be seen in what manner their liability is to apportioned. It is seen that R-1 was not only driving at high speed but he was also carrying more passengers than the permissible limit and that too in a three-wheeler, which is score low on the point of safety as an LMV. Further, he was driving on the other side of the road due to diversion of traffic and hence had greater duty to take care than R-4, who was also stated to be not driving properly. Hence, the liability of (R-1 & R-2) and R-4 is apportioned in the ratio of 60:40.
There is no evidence brought on record to suggest that vehicle of R-4 was insured at the time of accident and despite opportunity given to clarify, no document was produced before the court and no submission was made to suggest that his vehicle was insured and thus his vehicle (car) is considered as not insured on the date of accident. As the offending TSR was duly insured with R3, it is the liability of insurance MACP No.66/19 ; Shameem @ Shameema Vs. Zafaruddin & Ors. MACP No.67/19 ; Farhana Vs. Zafaruddin & Ors.
MACP No.68/19 ; Mohd. Fahim Khan Vs. Zafaruddin & Ors. MACP No.66/19 ; Iram Vs. Zafaruddin & Ors.
MACP No.66/19 ; Tabassum Vs. Zafaruddin & Ors. Page 40 of 44company to make payment of compensation amount to the petitioners (subject to the discussion given under regarding the number of passengers / petitioners that the insurance company is liable to recompense under the third party insurance /statutory liability) in the ratio above-stated. Further, as R-1 was carrying extra passengers in violation of RC condition, it is to be seen next as to how many of the petitioners, insurance company is liable to pay and in what manner. As per the judgment in the case titled as National Insurance company Ltd. vs. Anjana Shyam & Ors., Appeal (civil) 2422-2459 of 2001 decided on 20.08.2007, in a case where the offending bus was carrying passengers in excess of the permitted number, it was held that :
"15. In spite of the relevant provision of the statue, insurance still remains a contract between the owner and the insurer and the parties are governed by the terms of their contract. The statue has made insurance obligatory in public interest and by way of social security and it has also provided that the insurer would be obliged to fulfill his obligation as imposed by the contract and as overseen by the statue not withstanding any claim he may have against the other contracting party, the owner, and meet the claims of third parties subject to the exception provided in Section 149 (2) of the Act. But that does not mean that an insurer is bound to pay amounts outside the contract of the insurance itself or in respect of persons not covered by the contract at all. In other words, the insured is covered only to the extent of the passengers permitted to be insured or directed to be insured by the statue and actually by the covered contract. The High court had considered only the aspect whether by overloading the vehicle, the owner had put the vehicle to a use not allowed by the permit under the which the vehicle is used. This aspect is different from the aspect of determining the extent of the liability of the insurance company in respect of the passenger of a stage carriage insured in terms of section 147(1) (b)(ii) of the Act. We are of the view that the insurance company can be made liable only in respect of the number of passenger for whom insurance can be taken under the Act and for whom the insurance has been taken as a fact and MACP No.66/19 ; Shameem @ Shameema Vs. Zafaruddin & Ors. MACP No.67/19 ; Farhana Vs. Zafaruddin & Ors. MACP No.68/19 ; Mohd. Fahim Khan Vs. Zafaruddin & Ors. MACP No.66/19 ; Iram Vs. Zafaruddin & Ors.MACP No.66/19 ; Tabassum Vs. Zafaruddin & Ors. Page 41 of 44
not in respect of the other passengers involved in a case of overloading.
"16.Then arises the question, how to determine the compensation payable or how to quantify the compensation since there is no means of ascertaining who out of the cover loaded passengers constitute the passengers covered by the insurance policy as permitted to be carried by the permit itself. As this court has indicated, the purpose of the Act is to bring benefit to the third parties who are either injured or dead in an accident. It serves a social purpose. Keeping that in mind, we think that the practical and proper course would be to hold that the insurance company, in such a case, would be bound to cover the higher of the various awards and will be compelled to deposit the higher of the amounts of compensation awarded to the extent of the number of passengers covered by the insurance policy. Illustratively, we may put it like this. In the case on hand, 42 passengers were the permitted passengers and they are the ones who have been insured by the insurance company. 90 persons have either died or got injured in the accident. Award have been passed for varied sums. The Tribunal should take into account, the higher of the 42 awards made, add them up and direct the insurance company to deposit that lump sum. Thus, the liability of the insurance company would be to pay the compensation awarded to 42 out of the 90 passengers. It is to ensure that the maximum benefit is derived by the insurance taken for the passengers of the vehicle, that we hold that the 42 awards to be satisfied by the insurance company would be the 42 awards in the descending order starting from the highest of the awards. In other words, the higher of the 42 awards will be taken into account and it would be the sum total of those higher 42 awards that would be the amount that the insurance company would be liable to deposit. It will be for the Tribunal thereafter to direct distribution of money so deposited by the insurance company proportionately to all the claimants, here all the 90, and leave all the claimants to recover the balance from the owner of the vehicle. In such cases, it will be necessary for the Tribunal, even at the initial stage, to make appropriate orders to ensure that the amount could be recovered from the owner by ordering attachment or by passing other restrictive orders against the owner so as to ensure the satisfaction in full of the awards that may be passed ultimately".
56. From the above-quoted judgment, it is clear that Insurance MACP No.66/19 ; Shameem @ Shameema Vs. Zafaruddin & Ors. MACP No.67/19 ; Farhana Vs. Zafaruddin & Ors.
MACP No.68/19 ; Mohd. Fahim Khan Vs. Zafaruddin & Ors. MACP No.66/19 ; Iram Vs. Zafaruddin & Ors.
MACP No.66/19 ; Tabassum Vs. Zafaruddin & Ors. Page 42 of 44company has duty to re-compensate only for the number of passengers as per the permit and RC and not otherwise. In the facts and circumstances of the present case, I am of the view that ends of justice would be met if the insurance company is directed to pay proportional compensation to the 3 victims who have been awarded compensation on the higher side. Further, respondent No. 1 & 2 jointly and severally shall make payment of proportional compensation to the rest of the two victims / petitioners. R-4 shall make proportional payment of compensation to all of the petitioners in the ratio above-mentioned.
ISSUE NO. 6:
57. The petitioner/s have conducted the proceedings in these cases diligently. Therefore, they are entitled for interest @ 7.5% per annum on the aforesaid respective award amount from the date of filing of the petitions till realization.
(ISSUE No. 7) RELIEF:
(MACP No. 66/19 : In re- Shameem Vs. Zafaruddin & Ors.)
58. The petitioner Shameema @ Shameem is awarded compensation in the sum of Rs.7,000/- alongwith interest @ 7.5% per annum from the date of filing of the petition till the date of realization. (MACP No. 67/19 : In re- Farhana Vs. Zafaruddin & Ors.)
59. The petitioner Farhana is awarded compensation in the sum of Rs.4,000/- alongwith interest @ 7.5% per annum from the date of filing of the petition till the date of realization.
MACP No.66/19 ; Shameem @ Shameema Vs. Zafaruddin & Ors. MACP No.67/19 ; Farhana Vs. Zafaruddin & Ors.
MACP No.68/19 ; Mohd. Fahim Khan Vs. Zafaruddin & Ors. MACP No.66/19 ; Iram Vs. Zafaruddin & Ors.
MACP No.66/19 ; Tabassum Vs. Zafaruddin & Ors. Page 43 of 44(MACP No. 68/19 : In re- Mohd. Fahim Khan Vs. Zafaruddin & Ors.)
60. The LRs of the deceased petitioner Mohd. Fahim Khan are awarded compensation in the sum of Rs.2,000/- alongwith interest @ 7.5% per annum from the date of filing of the petition till the date of realization.
(MACP No. 69/19 : In re- Iram Vs. Zafaruddin & Ors.)
61. The petitioner Iram is awarded compensation in the sum of Rs.7,000/- alongwith interest @ 7.5% per annum from the date of filing of the petition till the date of realization.
(MACP No. 70/19 : In re- Tabassum Vs. Zafaruddin & Ors.)
62. The petitioner Tabassum is awarded compensation in the sum of Rs.7,000/- alongwith interest @ 7.5% per annum from the date of filing of the petition till the date of realization.
63. All the respondents are directed to deposit the award amount in terms of the directions of the Tribunal within one month from today.
Announced in the open (Mayuri Singh) Court on 14.10.2023 Presiding Officer-MACT (East) (Total 44 pages) Karkardooma Courts, Delhi
MACP No.66/19 ; Shameem @ Shameema Vs. Zafaruddin & Ors. MACP No.67/19 ; Farhana Vs. Zafaruddin & Ors.
MACP No.68/19 ; Mohd. Fahim Khan Vs. Zafaruddin & Ors. MACP No.66/19 ; Iram Vs. Zafaruddin & Ors.
MACP No.66/19 ; Tabassum Vs. Zafaruddin & Ors. Page 44 of 44