Delhi District Court
Smt. Shobha Gupta vs Yasin on 3 July, 2020
IN THE COURT OF MS. SHUCHI LALER, PRESIDING
OFFICER-MOTOR ACCIDENT CLAIMS TRIBUNAL,
SHAHDARA DISTRICT, KKD, DELHI
MACT No. 1239/16
In the matter of:
1. Smt. Shobha Gupta
W/o Late Sh. Vikas Gupta
2. Master Akshat Gupta, (aged 11 years)
S/o Late Sh. Vikas Gupta
(Through his natural guardian / mother
i.e. the petitioner no. 1)
Both R/o 386-A, East Azad Nagar,
Delhi. .... Petitioners
Versus
1. Yasin,
S/o Sh. Ahmad Ali,
R/o Jalpura, Greater Noida,
Gautam Budh Nagar, U.P.
(Driver of offending vehicle)
2. Yusuf
S/o Shri Ahmad
R/o H.No. 90, Jalpura Village,
P.S. Bisrakh, Gautam Budh Nagar,
U.P.
(Owner / superdar of offending vehicle)
3. Transcon India Pvt. Ltd.
WZ-29, Dasgarh, Post Pusa,
Delhi.
(Regd. Owner of the offending vehicle)
MACT No. 1239/16 Smt. Shobha Gupta Vs. Yasin & Anr. Page No. 1 of 24
4. M/s. Shri Ram General Insurance Co. Ltd.
Karol Bagh, New Delhi.
(Insurer of the offending vehicle) .... Respondents
Date of Institution : 09.01.2013
Date of Arguments : 03.07.2020
Date of Judgment : 03.07.2020
AWARD
1. Vide this award, the claim petition under Section 166 and 140 of M.V. Act would be decided. This claim petition arises out of an accident which took place on 15.07.2010 at Phase - II, Near Phool Mandi, Gautam Budh Nagar, U.P. resulting into death of Sh. Vikas Gupta.
2. The case of petitioners, in brief, is that on 15.07.2010, deceased Sh. Vikas Gupta along with Sh. Lalit Kandpal and Sh. Sandeep Namunda were going to Greater Noida, U.P. in a Maruti Van bearing No. DL-2C-AL-4828 driven by deceased Sh. Vikas Gupta. When the vehicle i.e. Maruti Van reached at Phase - II, Near Phool Mandi, Gautam Budh Nagar, U.P. suddenly a Canter bearing No. DL-1LC-8427 came at a high speed and in a rash and negligent manner had hit the Van with great force. As a result, the deceased and other two persons sustained injuries and the police took them to Kailash Hospital, Noida, U.P. where Sh. Vikas Gupta expired. It has been alleged that the offending vehicle i.e. Canter bearing No. DL-1LC-8427 was being driven at a very high speed and the accident took place due to rash and negligent driving of MACT No. 1239/16 Smt. Shobha Gupta Vs. Yasin & Anr. Page No. 2 of 24 respondent no. 1 who had violated the traffic rules. It is further alleged that respondent no. 2 being the owner / superdar of offending vehicle and respondent no. 3 being the registered owner of said vehicle are vicariously liable for the act of respondent no. 1. The offending vehicle is stated to be insured at the time of accident so respondent no. 4 is liable to pay the compensation amount.
3. Respondents No. 1 and 2 have filed a joint written statement wherein they have stated that no accident took place due to negligence or rash driving of respondent no. 1 and they have been falsely implicated in the alleged accident. It is further stated that the vehicle in question was duly insured with respondent no. 4 at the time of accident, hence, respondent no. 4 is liable to compensate the petitioner. The respondent no. 1 has averred that he was not plying the vehicle in question at the time of accident. After filing the written statement, respondent no. 1 and 2 stopped appearing before the Tribunal and they were proceeded exparte by ld. Predecessor vide order dated 19.08.2015.
4. Though, Transcon India Pvt. Ltd., being registered owner of the offending vehicle was impleaded as respondent no. 3 in the instant claim petition, ld. counsel for respondent no. 1 and 2 stated before the Tribunal on 16.12.2013 that on the day of accident, the respondent no. 2 was the owner of the offending vehicle. In view of statement of ld. counsel for respondent no. 1 and 2, ld. Predecessor observed that there is no requirement of issuance of notice to respondent no. 3.
MACT No. 1239/16 Smt. Shobha Gupta Vs. Yasin & Anr. Page No. 3 of 24 Thereafter, respondent no. 3 was directed to be served through publication vide order dated 13.08.2014, none appeared on behalf of respondent no. 3, despite substituted service, accordingly, respondent no. 3 was proceeded ex parte by ld. Predecessor on 10.10.2014.
5. Respondent No. 4 / Insurance Company, in its written statement denied its liability to pay the compensation amount on the ground that the previous insurance document of the offending vehicle with M/s. Oriental Insurance Company Ltd. vide Cover Note No. 368604 was fake and respondent no. 3 has obtained the policy from respondent no. 4 by playing fraud. The respondent no. 4 has also alleged that the deceased was negligent in driving the Maruti Van bearing no. DL-2CAL-4828 as the deceased did not have a driving license. The present petition is further alleged to be bad for misjoinder and non joinder of necessary parties as owner and insurer of vehicle bearing no. DL-2CAL-4828 have not been impleaded as respondents. Dismissal of claim petition with cost has been prayed for.
6. On the basis of pleadings of the parties, following issues were framed:-
(i) Whether the deceased Sh. Vikas Gupta suffered fatal injuries in the accident occurred on 15.07.2010 due to rash and negligent driving of vehicle bearing no. DL-1LC-8427 being driven by respondent no. 1? OPP
(ii) Whether the petitioners are entitled for any compensation, if so, to what amount and from whom? OPP MACT No. 1239/16 Smt. Shobha Gupta Vs. Yasin & Anr. Page No. 4 of 24
(iii) Relief.
7. To prove the case, the wife of deceased, Ms. Shobha Gupta stepped into the witness box as PW1 and tendered her evidence by way of affidavit which is Ex.PW1/A. She has relied upon the following documents:-
(i) Copy of Election ID Card as Ex.PW1/1;
(ii) Copy of Pan Card as Ex.PW1/2;
(iii) Copy of Driving License as Ex.PW1/3;
(iv) Copy of Death Certificate of deceased as Ex.PW1/4;
(v) Certified Copy of FIR as Ex.PW1/5;
(vi) Certified Copy of Chargesheet as Ex.PW1/6;
(vii) Certified Copy of Site Plan as Ex.PW1/7;
(viii) Certified Copy of Postmortem Report as Ex.PW1/8;
(ix) Certified Copy of Mechanical Inspection as Ex.PW1/9;
(x) Certified Copy of Mechanical Inspection Report of Maruti Van as Ex.PW1/10;
(xi) Photocopy of DL of respondent no.1 as Mark A;
(xii) Photocopy of RC of offending vehicle as Mark B (colly);
(xiii) Photocopy of Insurance Policy as Mark C;
(xiv) Photocopy of Sale Letter Form No. 29 to 30 as Mark D (colly);
(xv) Photocopy of Election Card of respondent no. 2 as Mark F. The eye witness Sh. Lalit Narayan Kandpal has been examined as PW-2 who tendered his evidence by way of affidavit, which is Ex.PW2/A. He relied upon a sole document MACT No. 1239/16 Smt. Shobha Gupta Vs. Yasin & Anr. Page No. 5 of 24 i.e. his Office Identity Card which is Ex.PW2/1. Both witnesses were duly cross examined by ld. proxy counsel for Insurance Company. Thereafter petitioners' closed their evidence.
8. Respondent no. 4 / Insurance Company examined its Legal Officer Sh. Akash Deep Mishra as R4W1 who deposed that respondent no. 2 and 3 have not supplied the copy of Permit and RC of offending vehicle so Insurance Company is not liable to pay any compensation. He proved the copy of notice under Order 12 Rule 8 CPC as Ex.R4W1/A, its Postal Receipt as Ex.R4W1/B and Ex.R4W1/C and Insurance Policy as Ex.R4W1/D.
9. Final arguments heard on behalf of petitioners and respondent no. 4. Record perused. None appeared on behalf of respondent no. 1 and 2 to address arguments.
10. Issue wise findings are as under:-
11. ISSUE NO. 1 - 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 to be tested on the touchstone 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. Vs. Sakshi Bhutani & Ors., MAC APP. No. 550/2011 decided on 02.07.2012, Bimla Devi MACT No. 1239/16 Smt. Shobha Gupta Vs. Yasin & Anr. Page No. 6 of 24 & Ors. Vs. Himachal Road Transport Corporation & Ors. (2009) 13 SC 530, Parmeshwari Vs. Amirchand & Ors. 2011 (1) SCR 1096 & Mangla Ram Vs. Oriental Insurance Company Ltd. & Ors. 2018, Law Suit (SC) 303.
12. The case of petitioners is that on 15.07.2010, the deceased was driving Maruti Van bearing no. DL 2CAL 4828 in which Sh. Lalit Narayan and Sh. Sandeep Namunda were sitting. When they reached Phase - II, Near Phool Mandi, Gautam Budh Nagar, U.P., suddenly, the offending vehicle i.e. Canter bearing No. DL 1LC 8427, being driven in a rash and negligent manner and at high speed, hit the aforesaid Maruti Van because of which two persons sustained injuries. The deceased was admitted in Kailash Hospital, Noida, U.P. where deceased Sh. Vikas Gupta succumbed to injuries.
13. In order to prove that the offending vehicle was being driven in rash and negligent manner due to which the accident took place, petitioner no. 1 (wife of deceased) tendered her evidence by way of affidavit which is Ex.PW1/A. In para no. 2 and 3 of the said Affidavit, she testified regarding the manner in which the accident took place, however, the said deposition is inadmissible being hearsay, as PW-1 / petitioner categorically admitted in her cross examination that she is not an eye witness of the accident. The relevant portion of cross examination is as under:-
"I am not an eye witness of the accident and therefore I cannot depose as to how the accident took place."
MACT No. 1239/16 Smt. Shobha Gupta Vs. Yasin & Anr. Page No. 7 of 24
14. Petitioners also examined Sh. Lalit Narayan Kandpal as PW-2 and he, in his affidavit, testified regarding the manner in which the accident took place in para no. 2 & 3, which are reproduced as under:-
"2. That on dated 15.07.2012, the deceased Vikas Gupta was going to Greater Noida, U.P. by driving a Maruti Van bearing no. DL-2C-AL- 4828 along with the deponent and Sandeep Namunda, S/o Sh. Jagdish Chander. When the said Maruti Van was reached at Phase - II, Near Phool Mandi, Gautam Budh Nagar, U.P., suddenly a canter bearing no. DL-1L-C-8427 came in a high speed and in rash and negligent manner and hit the aforesaid Maruti Van and due to this forceful impact, the deceased, the deponent and Sandeep Namunda sustained injuries. Police reached at the spot and admitted the deceased, deponent and Sandeep Namunda in Kailash Hospital, Noida, U.P., where the deceased Sh. Vikas Gupta expired."
"3. That the accident took place due to sole negligence and carelessness driving of the respondent no. 1 by driven canter no. DL-1L- C-8427 who violated all traffic rules and regulations."
15. PW-2, being eye witness as well as injured, was MACT No. 1239/16 Smt. Shobha Gupta Vs. Yasin & Anr. Page No. 8 of 24 subjected to lengthy cross examination by ld. counsel for Insurance Company. His cross examination being relevant is reproduced as under:-
"XXXX by Sh. Rajesh Goel, Proxy Counsel Sh. M.P. Shahi, Counsel for Insurance Company. I am post-graduate and capable to read and write English. I was sitting behind the driver when the accident took place. Sh. Vikas was the driver of the vehicle. I am employed with Total TV. The vehicle in which we were travelling was provided by the employer. I cannot say whether the vehicle was owned by Total TV or hired as this is not my department. On the day of accident, we were going from Sector - 12 where I resided at Noida and were going to DM Office at Greater Noida. I had to cover a story at DM Office. Sandeep Namunda was the camera man and myself were the occupants of the vehicle being driven by Vikas. I knew Vikas as he was the driver of the Total TV. We started our journey at about 9.00 a.m. from Sector - 12. The place where the accident took place is about 15-16 kms from Sector -12. The accident took place at about 10.30-11.00 a.m. We did not take any halt on our way. The road where the accident took place is a four laned road with two lanes on each side on the divider. There was a U-turn and the Canter came from the other side from U-turn and hit our vehicle. MACT No. 1239/16 Smt. Shobha Gupta Vs. Yasin & Anr. Page No. 9 of 24 We were not supposed to take the U-turn but we had to go straight. It is correct that our vehicle was in the lane of the U-turn and not in the lane for going straight. I had seen the number of offending vehicle after getting down from the Maruti Van after the collision. I called the PCR through my mobile phone number. I do not remember my mobile phone number through which I had called the PCR as it is long time ago. The driver Vikas had suffered fatal injuries. I took to Kailash Hospital, Sector - 27, Noida in a PCR Van and he was responding to me during the time while he was being shifted to the hospital but I do not know whether he died in the hospital or on the way. I do not know whether driver of offending vehicle stayed at the spot of the accident or had fled away. PCR van reached with 10-15 minutes of my call. Vol. I had not called the police control room but I had called Sh. Vikas Tripathi who was the Circle Officer - II of Noida Police and he had sent the PCR Van. My statement was recorded at Kailash Hospital on the same day by police officials. I had suffered head injury but I do not have any medical record to this effect today in the court. Vol. My MLC was prepared at Kailash Hospital. I cannot say if Canter was loaded with goods or not. I had not seen the driver of the offending vehicle. It is wrong to suggest that MACT No. 1239/16 Smt. Shobha Gupta Vs. Yasin & Anr. Page No. 10 of 24 since the driver of the Total TV was injured in the accident and I being resident of nearby place I have come to depose regarding the accident and that I am not the witness to the accident and therefore I am not able to give my mobile number or the medical documents prepared for my injury to show my presence on the spot. It is wrong to suggest that the accident took place due to the negligence of the deceased who was driving rashly and negligently and in the lane which was not supposed to go straight."
16. In the aforesaid cross examination, PW2 testified that there were two lanes on each side of the road and that the Maruti Van (victim's vehicle) was in the lane of the U- Turn and not in the lane for going straight. PW-2 categorically deposed in his cross examination that the accident took place as the offending vehicle was being driven in opposite direction i.e. it came from the side of U-Turn in opposite direction and had hit the Maruti Van which was being driven by the deceased on the correct side of the road. The road where the accident took place was of two lanes, so there could not have been a separate lane for U-Turn. A reading of testimony of PW-2 in toto suggests that the Maruti Van was being driven in the lane adjoining the divider whereas the offending vehicle came from the opposite side and had hit the Maruti Van. The fact that the MACT No. 1239/16 Smt. Shobha Gupta Vs. Yasin & Anr. Page No. 11 of 24 offending vehicle was being driven in opposite / wrong direction is further corroborated by the FIR lodged on the same day wherein it is mentioned by PW-2 that the offending vehicle came from the wrong side, being driven negligently and at high speed. Therefore testimony of PW-2 is corroborated by the contents of FIR Ex.PW1/5.
17. Further the site plan Ex.PW1/7 prepared by the IO clearly shows that the offending vehicle was being driven on the wrong side of the road and it had hit the victim's vehicle while being so driven in the opposite direction. The site plan being relevant is reproduced as under:-
18. The testimony of PW-2 is further supported by the mechanical inspection reports of the two vehicles involved in the accident. Perusal of mechanical inspection report Ex.PW1/9 and Ex.PW1/10 shows that both the vehicles were MACT No. 1239/16 Smt. Shobha Gupta Vs. Yasin & Anr. Page No. 12 of 24 having fresh damage on the front side. Further as per Ex.PW1/10 the damage caused to the Maruti Van (victim's vehicle) was so severe that it can be inferred that the said vehicle was hit hard by the offending vehicle. Therefore, so far as the cause of the accident is concerned, in light of the testimony of injured / eye witness PW-2 Sh. Lalit Narayan Kandpal, which is duly corroborated by the FIR, site plan and mechanical inspection reports, it can be held that the accident was caused by the offending vehicle while it was being driven on the opposite side of the road (wrong side) that too at high speed and negligently. There is sufficient material on record to conclude that the accident occurred due to rash and negligent driving of offending vehicle resulting in death of Sh. Vikas Gupta. Issue no. 1 is answered in favour of petitioners.
19. ISSUE NO. 2: - In view of finding on aforesaid issue, the petitioners are entitled to compensation, however, the quantum of compensation and the liability to pay the same etc. still needs to be adjudicated. Section 168 of the Act enjoins the claim tribunal to hold an inquiry into the claim to make an award determining the amount of compensation which appears to just and reasonable. It has to be borne in mind that the compensation is not expected to be wind fall or a bonanza nor it should be pittance. To determine the compensation in a fatal case, three facts need to be established by the claimants: (a) age of the deceased; (b) income of the deceased; and (c) the number of dependents.
MACT No. 1239/16 Smt. Shobha Gupta Vs. Yasin & Anr. Page No. 13 of 24
(i) Age of deceased: The age of deceased is necessary to apply the multiplier. As per the Pan Card of deceased, his date of birth was 22.03.1977 and the accident took place on 15.07.2010, accordingly, the age of deceased was 33 years at the time of accident.
(ii) Determination of Income of deceased : After deciding the age of deceased, his income needs to be determined. The wife of deceased examined as PW1 deposed that the deceased was working as a driver with Total Channel TV and was getting a salary of Rs. 15,000/- pm. Even PW-2 testified that the deceased was employed as a driver with Total Channel TV. Though there is no document on record to prove that the deceased was earning Rs.15,000/- per month, it stands established that the deceased was a driver by profession. In the absence of any salary slip on record, the income of deceased is to be determined as per minimum wages of a skilled worker prevalent in U.P. On the day of accident, the minimum wages payable to a skilled person in U.P. was Rs.4,803/-pm. The annual income of deceased comes to be Rs. 57,636/-.
(iii) Number of dependents : The instant claim petition has been filed by two petitioners. Petitioner No. 1 is the wife and petitioner no. 2 is son of deceased. Thus, the deceased had two dependants.
(iv) Multiplier applicable in this case - As the age of the deceased has been ascertained, an appropriate multiplier has to be determined. The judgment titled as Sarla Verma v. DTC, MACT No. 1239/16 Smt. Shobha Gupta Vs. Yasin & Anr. Page No. 14 of 24 (2009) 6 SCC 121 is relevant to consider the multiplier. Para 21 of the judgment has laid down the multiplier as per age as under:-
MULTIPLIER AGE GROUP OF DECEASED
M-18 Age groups between 15 to 20 and 21 to
25 years)
M-17 Age groups between 26 to 30 years,
M-16 Age groups between 31 to 35 years,
M-15 Age groups between 36 to 40 years,
M-14 Age groups between 41 to 45 years,
M-13 Age groups between 46 to 50 years,
M-11 Age groups between 51 to 55 years,
M-9 Age groups between 56 to 60 years,
M-7 Age groups between 61 to 65 years
M-5 Age groups between 66 to 70 years.
In view of the above said judgment, a multiplier of 16 has to be applied against 33 years of age of the deceased to determine the compensation.
(v) Necessary deductions out of earnings of the deceased towards personal expenses: After choosing the age, multiplier and income of the deceased, necessary deductions have to be made out of the income of the deceased towards his personal expenses. Hon'ble Supreme Court in MACT No. 1239/16 Smt. Shobha Gupta Vs. Yasin & Anr. Page No. 15 of 24 case titled as Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65, in Para 30, has laid down the necessary deductions towards personal living and expenses of deceased as under:-
Number of Deductions out of earning of the dependents deceased.
Half / ½ Where dependent is 1 1/3rd Where the number of dependent family members is 2 to 3 1/4th Where the number of dependent family members is 4 to 6, 1/5th Where the number of dependent family members exceeds 6 (six).
The wife and son were dependent upon deceased. As there are two dependents of the deceased, 1/3rd earnings of the deceased has to be considered towards deductions out of his yearly earnings. As such, 1/3rd amount out of annual income of Rs. 57,636/- i.e. 19,212/- p.a. has to be reduced towards personal expenses. Thus, the deceased was earning Rs.38,424/- after deduction of 1/3rd amount towards personal expenses.
(vi) Future prospects : Besides it, future income of the deceased is also to be considered in view of judgment of Hon'ble Apex Court titled as National Insurance Company Limited vs. Pranay Sethi & Ors, SLP (Civil) No. 25590 of 2014 decided on 31.10.2017 in which it is observed as under:-
MACT No. 1239/16 Smt. Shobha Gupta Vs. Yasin & Anr. Page No. 16 of 24 "(iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.
(iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.
(viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be MACT No. 1239/16 Smt. Shobha Gupta Vs. Yasin & Anr. Page No. 17 of 24 Rs. 15,000/-, Rs. 40,000/- and Rs.15,000/-
respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years.
In view of the above said judgment, 40% amount is to be considered towards future income of the deceased who was aged around 33 years but had no permanent employment.
(vii) Loss of Dependency : It has been observed that the deceased was earning Rs. 38,424/- p.a after 1/3rd deduction. This annual income has to be multiplied by a multiplier of 16 as per Sarla Verma v. DTC (supra). Rs. 38,424/- x 16 = Rs. 6,14,784/-. Thereafter, 40% income towards future income of the deceased has to be added in terms of National Insurance Co. v. Pranay Sethi (Supra) i.e. 2,45,913.6/- has to be added to above said amount i.e. Rs. 6,14,784/- + 2,45,913.6/- = Rs. 8,60,697.6/-.
(viii) COMPENSATION UNDER NON PECUNIARY HEADS:
In view of judgment of Hon'ble Supreme Court in the case titled as Satinder Kaur@Satwinder Kaur & Ors. Vs. United India Insurance Co. Ltd. Civil Appeal No. 2706 of 2020, dated 20.06.2020, loss of consortium has to be fixed for Rs. 40,000/- for each petitioner. Further, Rs. 15,000/- each has to be awarded for loss of estate and funeral expenses. Thus a total sum of Rs. 1,10,000/- (40,000/- X 2 + 15,000/- + 15,000/-) is granted under this head.
In view of this, petitioners shall be entitled for total MACT No. 1239/16 Smt. Shobha Gupta Vs. Yasin & Anr. Page No. 18 of 24 compensation of Rs.9,70,697.6/- (Rs. Rs. 8,60,697.6/- + Rs.1,10,000/-).
20. The total compensation awarded to petitioners, namely, Smt. Shobha Gupta and Master Akshat Gupta is summarized as under:
1. Loss of dependency / Contribution Rs. 8,60,697.6/- to family:
2. Loss of Estate: Rs. 15,000/-
3. Loss of consortium : Rs.80,000/-
4. Funeral Charges Rs. 15,000/-
Total = Rs. Rs.9,70,697.6/-
(Rs. 9,70,700/-
rounded off)
21. LIABILITY: Now, the question arises as to which of the respondent is liable to pay the compensation amount. The respondent no. 1 is the principal tort feasor, being driver and respondent no. 2 is vicariously liable, being the owner of the offending vehicle. However, the offending vehicle was insured at the time of accident and the insurance company has contractual and statutory liability to indemnify the insured. In the instant case, the insurance company did set up three defenses to escape its liability such as the instant insurance policy was obtained by respondent no. 2 by playing fraud, secondly, the petition is bad for misjoinder and non joinder of necessary parties and, lastly, vehicle was not holding a valid permit. The insurance company miserably failed to establish its MACT No. 1239/16 Smt. Shobha Gupta Vs. Yasin & Anr. Page No. 19 of 24 first defence i.e. the plea of fraud. When a party alleges fraud, the onus lies upon the said party to prove the same. Though, the Insurance Company has averred in its written statement that the previous insurance policy procured by respondent no. 2 from Oriental Insurance Company was fake, the respondent no. 4 did not prefer to lead any evidence in support thereof. Even if it is presumed that the previous insurance policy procured by respondent no. 2 from Oriental Insurance was fake, the pleadings are silent as to how it amounted to commission of fraud upon respondent no.4 which must have issued the present policy after verification of relevant facts. The second plea raised by the Insurance Company is that of misjoinder and non joinder of necessary parties on the ground that the owner and insurer of the motor vehicle which was driven by deceased have not been impleaded as party in the present claim petition. Under the Motor Vehicles Act, the claimants can elect to file the claim petition either under Section 166 read with Section 140 of the Act against the owner/insurer of the offending vehicle on the basis of fault liability or under Section 163A against the owner / insurer of the vehicle driven by the deceased or against the owner/ insurer of offending vehicle on the basis of no fault liability. The petitioners have exercised their right to file the instant claim petition under Section 166 read with Section 140 of the Act against the owner / insurer of the offending vehicle and they cannot be compelled to claim compensation on the basis of no fault liability under Section 163A of the Act. The owner/insurer MACT No. 1239/16 Smt. Shobha Gupta Vs. Yasin & Anr. Page No. 20 of 24 of vehicle driven by deceased are not necessary parties to the present claim petition under Section 166 of the Act, consequently, the petition cannot be held to be bad on this score. The last leg of argument of the Insurance Company is that the offending vehicle was being plied without any valid permit, thus, respondent no. 4 is not liable to indemnify the owner of the offending vehicle. Ld. Counsel for Insurance Company, in support of this contention, relied upon the judgment of Hon'ble Delhi High Court titled as "Bajaj Allainz General Insurance Vs. Naresh Kumar Gupta & Ors. MAC. APP. 113/14, dated 23.05.2016". Para No. 7 of the aforesaid judgment reads as under:-
7. Clearly, the tribunal has misread the evidence and not appreciated the contention of the insurer properly. The insurer had taken a specific defence namely that the vehicle was not holding a valid permit. The insurer had proved the despatch of notices under Order 12 Rule 8 CPC by post. There was no contest to the evidence to this effect. In these facts and circumstances, the delivery in due course of postal transit should have been inferred.
The driver and owner of the offending vehicle were well aware that in order to avail the benefit of the indemnity clause under the insurance policy, in the face of defences taken, they were required to show not only that the driver was holding a valid or effective driving licence but also that the vehicle was brought on road in strict compliance with the requirements of the Motor Vehicles Act and Rules framed thereunder which would include the MACT No. 1239/16 Smt. Shobha Gupta Vs. Yasin & Anr. Page No. 21 of 24 necessity of a permit. The tribunal failed to note that the documents filed with the written statement though included copy of a permit but the said document was valid from 06.05.2009. The accident having occurred on 20.02.2009, the said permit could not have been referred so as to absolve the owner of his responsibility."
22. The aforesaid judgment squarely applies to the facts of the present case. In the instant case, the employee of Insurance Company examined as R4W1 has duly proved the service of notice under Order 12 Rule 8 CPC Ex.R4W1/A upon respondent no. 2 and 3. Despite receipt of the legal notice, respondent no. 2 and 3 did not prefer to file on record the permit of the offending vehicle so as to show that the offending vehicle was being plied on road in strict compliance of Motor Vehicles Act. As the owner of offending vehicle did not produce the valid permit before the Tribunal or the Insurance Company, in the light of judgment of Bajaj Allianz (Supra), the owner cannot avail the benefit of indemnity clause under the Insurance Policy. Insurance Company did serve notice under Order 12 Rule 8 CPC Ex.R4W1/A upon the owner to produce permit, however, the owner failed to produce the same, which amounts to breach of terms and conditions of insurance policy Ex.R4W1/D. Accordingly, respondent no. 4 is liable to pay this compensation with right of recovery from the owner as well as driver jointly or severally.
23. The next question which arises for consideration MACT No. 1239/16 Smt. Shobha Gupta Vs. Yasin & Anr. Page No. 22 of 24 is as to who was the owner of the offending vehicle on the day of accident i.e. 15.07.2010. As per the documents on record, the respondent no. 3 was continuing to be the registered owner of the offending vehicle, however, he had sold it off to respondent no. 2 on 29.09.2009 and Form No. 28, 29 and 30 were also executed in this regard. A similar issue has been dealt by Hon'ble Delhi High Court in judgment "Urmila Vs. Sushma & Ors. MACT APP.917/2017 dated 08.03.2019"
wherein it was held that if the registered owner can show, by credible evidence, that he had no control over the vehicle or that the vehicle was with someone else, over whom, or use of the vehicle by whom, he had no control, he cannot be held accountable, the liability in such case shifting upon to the person who had the control over to the vehicle. In the instant case, it is proved on record that the respondent no. 3 had already transferred the offending vehicle to respondent no. 2 and ld. counsel for respondent no. 1 and 2, categorically admitted before the Tribunal on 11.12.2013 and 16.12.2013 that the vehicle was purchased by respondent no. 2 before the accident and on the date of accident, the respondent no. 2 was its owner, consequently, the respondent no. 2 is held to be actual owner of the offending vehicle on the day of accident. Hence, respondent no. 4 is directed to pay this compensation amount with right of recovery from the respondent no. 1 and 2 jointly or severally.
MACT No. 1239/16 Smt. Shobha Gupta Vs. Yasin & Anr. Page No. 23 of 24 RELIEF:
24. In view of findings on the aforesaid issues, the Tribunal awards a compensation of Rs.9,70,700/- to the petitioners alongwith interest @ 9% p.a. from the date of filing of the petition till its realization to be paid by respondent no. 4 with rights of recovery against respondent no. 1 and 2, subject to adjustment of waiver of interest, if any as directed by the court during the pendency of this case. Respondent no. 4 is directed to deposit the award amount within one month from the date of this award and shall give notice regarding deposit of the said amount to petitioners and their counsel.
With these observations, the petition stands disposed off. Copy of the order be sent to ld. counsels for parties through email and be also given dasti to the parties.
File be consigned to record room and Nazir is directed to maintain a miscellaneous file for compliance which shall be listed on 19.08.2020.
Digitally signed by SHUCHI LALER SHUCHI LALER Date: 2020.07.03 16:38:35 +05'30' Announced in open court (SHUCHI LALER) On 03.07.2020 PO-MACT/SHAHDARA KARKARDOOMA COURTS, DELHI MACT No. 1239/16 Smt. Shobha Gupta Vs. Yasin & Anr. Page No. 24 of 24