Delhi District Court
Smt. Aasia vs Karamveer Singh on 19 July, 2016
IN THE COURT OF MS. KIRAN BANSAL
P.O. MOTOR ACCIDENT CLAIMS TRIBUNAL:
NORTH-EAST DISTRICT : KKD COURTS : DELHI
MACT No. 29/11 and New MACT No. 14780/15
Unique Case Identification No:- 02402C0015312011
1. Smt. Aasia
W/o Sh. Mohd. Ali aged about 43 years
2. Mohd. Ali
S/o Sh. Haji Munshi aged about 44 years
Both R/o H. No. A-187, Gali No. 3,
A-Block, Ziauddin Pur Mustufabad Extn.
Delhi - 110094
......Petitioners
Versus
1. Karamveer Singh
S/o Sh. Bani Singh
R/o H.No. 906, S.P. Mukhargi Marg,
Delhi - 110006 (Driver)
2. Tej Singh
S/o Sh. Bijan
R/o H.No. 906, S.P. Mukhargi Marg,
Delhi - 110006 (Owner)
3. The Oriental Insurance Co. Ltd.
Regional Office No. 1 (Legal Deptt.) T.P. Hub,
United India Life Building, 3rd Floor, F-14,
Connaught Place, New Delhi- 110001 (Insurance Co.)
.......... Respondents
i) Date of Institution of claim petition : 15/01/2011
ii) Date of Decision : 19/07/2016 MACT No. 30/11 and New MACT No.14835/15 Unique Case Identification No:- 02402C0015272011
1. Smt. Aasia W/o Sh. Mohd. Ali aged about 43 years
2. Mohd. Ali Kiran Bansal P.OMACT (NorthEast) MACT No. 29/11,30/11 & 34/11 Page 1/19 S/o Sh. Haji Munshi aged about 44 years Both R/o H. No. A-187, Gali No. 3, A-Block, Ziauddin Pur Mustufabad Extn.
Delhi - 110094 ......Petitioners Versus
1. Karamveer Singh S/o Sh. Bani Singh R/o H.No. 906, S.P. Mukhargi Marg, Delhi - 110006 (Driver)
2. Tej Singh S/o Sh. Bijan R/o H.No. 906, S.P. Mukhargi Marg, Delhi - 110006 (Owner)
3. The Oriental Insurance Co. Ltd.
Regional Office No. 1 (Legal Deptt.) T.P. Hub, United India Life Building, 3rd Floor, F-14, Connaught Place, New Delhi- 110001 (Insurance Co.) .......... Respondents
i) Date of Institution of claim petition : 15/01/2011
ii) Date of Decision : 19/07/2016 MACT No. 34/11 and New MACT No. 14446/15 Unique Case Identification No:- 02402C0018352011
1. Smt. Naseeb Bano W/o Sh. Takseer Hussain aged about 28 years
2. Takseer Hussain S/o Sh. Muzaffar Hussain aged about 32 years Both R/o H. No. A-41, A-Block Bhagirthi Vihar, Delhi 110094 ......Petitioners Versus
1. Karamveer Singh S/o Sh. Bani Singh R/o H.No. 906, S.P. Mukhargi Marg, Delhi - 110006 (Driver)
2. Tej Singh S/o Sh. Bijan Kiran Bansal P.OMACT (NorthEast) MACT No. 29/11,30/11 & 34/11 Page 2/19 R/o H.No. 906, S.P. Mukhargi Marg, Delhi - 110006 (Owner)
3. The Oriental Insurance Co. Ltd.
Regional Office No. 1 (Legal Deptt.) T.P. Hub, United India Life Building, 3rd Floor, F-14, Connaught Place, New Delhi- 110001 (Insurance Co.) .......... Respondents
i) Date of Institution of claim petition : 18/01/2011
ii) Date of Decision : 19/07/2016 APPLICATION U/S 166 & 140 M.V. ACT 1988 FOR GRANT OF COMPENSATION AWAR D
1. By this order I shall dispose off three connected matters titled as "Aasia and another Vs. Karamveer Singh and Others" bearing MACT No. 29/11, "
Aasia and another Vs. Karamveer Singh and Others" bearing MACT No. 30/11 and "Naseeb Bano and another Vs. Karamveer Singh and Others" bearing MACT No.34/11. LRs of deceased Mohd. Qasim, Mohd. Mohsin and Master Fazal have filed the present claim petition under Sec. 166 & 140 of MV Act stating that on 08/03/2009 at about 10:30 AM, deceased Mohd. Qasim alongwith her younger brother Mohd. Mohsin and his companion were going to his residence from Dadri by sitting on a motorcycle bearing no. DL 7S 3482. The said motorcycle was driven by deceased Mohd. Qasim and his younger brother and his companion were sitting on pillion seat of the said motorcycle. When the deceased reached near Badh Pura Pulia Nagar Palika Dadri P.S. Dadri Distt Gautam Budh Nagar U.P. all of a sudden a container bearing no. HR 38M 2975 which was being driven by its driver / respondent no. 1 at a very high speed, rashly and negligently came from front side i.e Ghaziabad side and violently knocked to the motorcycle of deceased with a Kiran Bansal P.OMACT (NorthEast) MACT No. 29/11,30/11 & 34/11 Page 3/19 great force as a result of which deceased alongwith his younger brother and his companion fell down on the road and died on the spot. The FIR No. 144/09 u/sec 279/304 A IPC was also registered at PS Dadri Distt. Gautam Budh Nagar, U.P. in this respect.
2. Summons of the claim petition were issued to the respondents. None has appeared on behalf of respondent no. 1 and 2 despite service by way of publication and hence, respondent no. 1 and 2 were proceeded ex-parte vide order dated 23/02/2012.
Respondent no. 3 Oriental Insurance Co. Ltd. has also filed WS. They have admitted that the vehicle No. HR 38M 2975 was insured with them for the period from 06/02/2009 to 05/02/2010 bearing Insurance Policy No. 271702/31/2009/10220.
3. On the basis of the pleadings of the parties, following issues were framed:-
Issues in MACT bearing no. 29/11
1) Whether deceased died because of injuries sustained in motor accident caused by rash and negligent driving of vehicle no. HR 38M 2975 (Container) by respondent no. 1 on 08/03/2009 at about 10:30 AM near Badh Pura Pulia Nagar, Palika Dadri District Gautam Budh Nagar, UP within the jurisdiction of P.S. Dadri District Gautam Budh Nagar? OPP
2) Whether petitioners are entitled to compensation? If so, to what amount and from whom ?
3) Whether there is willful and deliberate breach of terms & conditions of the policy by respondent no. 2? If so, its consequences? OPD
4) Relief Issues in MACT bearing no. 30/11
1) Whether deceased died because of injuries sustained in motor accident Kiran Bansal P.OMACT (NorthEast) MACT No. 29/11,30/11 & 34/11 Page 4/19 caused by rash and negligent driving of vehicle no. HR 38M 2975 (Container) by respondent no. 1 on 08/03/2009 at about 10:30 AM near Badh Pura Pulia Nagar, Palika Dadri District Gautam Budh Nagar, UP within the jurisdiction of P.S. Dadri District Gautam Budh Nagar? OPP
2) Whether petitioners are entitled to compensation? If so, to what amount and from whom ?
3) Whether there is willful and deliberate breach of terms & conditions of the policy by respondent no. 2? If so, its consequences? OPD
4) Relief Issues in MACT bearing no. 34/11
1) Whether deceased died because of injuries sustained in motor accident caused by rash and negligent driving of vehicle no. HR 38M 2975 (Container) by respondent no. 1 on 08/03/2009 at about 10:30 AM near Badh Pura Pulia Nagar, Palika Dadri District Gautam Budh Nagar, UP within the jurisdiction of P.S. Dadri District Gautam Budh Nagar? OPP
2) Whether petitioners are entitled to compensation? If so, to what amount and from whom ?
3) Whether there is willful and deliberate breach of terms & conditions of the policy by respondent no. 2? If so, its consequences? OPD
4) Relief
4. I have heard the counsels for both the parties and gone through the entire evidence on record carefully. My issue wise findings are as below :
5. ISSUE NO. 1 in MACT No. 29/11Issue no. 1 in all the cases being similar is taken up together. In all the cases Ms. Aasia and Naseeb Bano have examined as PW1 and Sh. Abbas as PW2. However, they are not eye witnesses to the incident. Though, PW 2 in his Kiran Bansal P.OMACT (NorthEast) MACT No. 29/11,30/11 & 34/11 Page 5/19 affidavit has stated about the facts of the case but during his cross examination he deposed that he had not seen the accident and had reached the spot after the accident. Respondent no.1 has also not stepped into the witness box to state as to how accident occurred and to depose that he was not at fault and was not driving the vehicle in rash and negligent manner In all the cases, criminal case record was filed which includes copy of chargesheet, FIR, site plan and postmortem reports.
In the absence of any eye witness, to determine the negligence, I am being guided by the judgment of Hon'ble High Court of Delhi in 2009 ACJ 287, National Insurance Company Limited Vs. Pushpa Rana wherein in the Hon'ble High Court held that in case the petitioner files the certified copy of the criminal record or the criminal record showing the completion of the investigation by the police or the issuance of charge sheet under section 279/304 A IPC or the certified copy of the FIR or in addition the recovery memo and the mechanical inspection report of the offending vehicle, these documents are sufficient proof to reach to the conclusion that the driver was negligent. It was further held that the proceedings under the Motor Vehicles Act are not akin to the proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Further, in Kaushnumma Begum and others v/s New India Assurance Company Limited, 2001 ACJ 421 SC, the issue of wrongful act or omission on the part of driver of the motor vehicle involved in the accident has been left to a secondary importance and it was held that, mere use or involvement of motor vehicle in causing bodily injuries or death to a human being or damage to property would made the petition maintainable under section 166 and 140 of the Act. It is also settled law that the term rashness and negligence has to be construed lightly while making a decision on a petition for claim for the same as compared to the Kiran Bansal P.OMACT (NorthEast) MACT No. 29/11,30/11 & 34/11 Page 6/19 word rashness and negligence as finds mention in the Indian Penal Code. This is because the chapter in the Motor Vehicle Act dealing with compensation is a benevolent legislation and not a penal one.
Further the Hon'ble High of Delhi in MAC App. No.200/2012 in case titled as United India Insurance Co. Ltd. Vd. Smt. Rinki @ Rinku & Ors decided on 23/07/2012 by Hon'ble Mr. Justice G. P. Mittal, held as under:
"The Claims Tribunal was conscious of the fact that negligence is a sine qua non to a Petition under Section 166 of the Motor Vehicles Act, 1988(the Act). It is also true that the proceedings for grant of compensation under the Act are neither governed by the criminal procedures nor are a civil suit. A reference may be made to a judgment of the Supreme Court Bimla Devi and Ors. V Himachal Road Transport Corporation and Ors, (2009) 13 SC 530 where it was held as under:
"15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of any accident caused by a particular bus in a particular manner may not be possible to be done by the claimant. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied."
Counsel for insurance has argued that the deceased persons were indulging into triple riding and hence, there was contributory negligence on the part of the driver of motorcycle of deceased. Though, it is a settled law that there cannot be any presumption about contributory negligence and contributory negligence, if any, is to be proved by way of positive evidence, but in "P. S. Somaiah and Anr. Vs. The Director, Bangalore Diary and Ors., AIR 2003 Kiran Bansal P.OMACT (NorthEast) MACT No. 29/11,30/11 & 34/11 Page 7/19 Kant 258", wherein injured was riding alongwith his two sons and daughter i.e three children and was also riding on the wrong side of the road and was driving rashly it was held that in view of Section 128 of M. V. Act, traffic rules should be followed in strict sense and heavy penalty should be imposed on breakers of law.
Similarly in "United India Insurance Co. Ltd. Vs. K. Anjaiah and Ors. 2004 (4) ALD 444" where the injured had indulged into triple riding, it was held that 25% of negligence can be attributed to such persons and compensation was granted after deducting 25% from pecuniary damages. As per section 128 M. V. Act.
"128. Safely measures for drivers and pillion riders:-- (1) No driver of a two wheeled motor cycle shall carry more than one person in addition to himself on the motor cycle and no such person shall be carried otherwise than sitting on a proper seat securely fixed to the motor cycle behind the driver's seat with appropriate safety measures. (2) In addition to the safety measures mentioned in Sub-
section (1), the central Government may, prescribe other safety measures for the drivers of two wheeled motor cycles and pillion riders thereon."
It was further held in K. Anjaiah's case (Supra) that :-
"........ it is common understanding that one will certainly feel discomforted when riding a two wheeler with two pillion riders and naturally his balance over the vehicle will be limited by reason of accommodating two pillion riders and he will not have that ease and comfort of riding with one pillion rider. In the instant case, it is admitted that there was triple riding on the scooter. Under those circumstances, even in the absence of independent evidence adduced by the Insurance company that the accident had occurred due to triple riding, it can be Kiran Bansal P.OMACT (NorthEast) MACT No. 29/11,30/11 & 34/11 Page 8/19 reasonable presumed that the rider of the scooter was discomforted by reasons of allowing two pillion riders and thus contributed in causing the accident. Had he been riding the scooter with one pillion rider, probably he would have averted the accident by swerving the scooter to the extreme left side, but could not do so probably, his hands and legs movement was limited due to the congestion. In such view of the matter the culpability in causing the accident is fixed at 75% on the part of the driver of the accident lorry and 25% on the part of the rider of the scooter."
In "Managing Director, Tamil Nadu State Transport Corporation Vs. Abdul Salam " MANU/TN/0074/2003, wherein at paras 10 and 11, it was held thus:
"We are concerned as to whether such action of the individuals is permissible under law. The motor cycle and any other two wheelers are meant only for two persons, the rider and a pillion rider. If more than two persons are travelling in a motor cycle or any other two wheeler, undoubtedly such action of the individual would become illegal and unauthorized. It is an awful sight when we come across three persons travelling in a motor cycle. They are sitting in such a cramped manner that the rider of the motor cycle almost sitting on the petrol tank or at the front edge of the seat. When he was sitting in such a position, naturally because of the restricted movement of his legs, he cannot have the complete control over the brake. The movements of his hand also so restricted. When that be so, this court is of the opinion that definitely the rider of the two wheeler cannot have full control over the vehicle. There is no gain saying that now-a-days it has become the normal course that three persons, are travelling in a motor cycle".
In view of the above case law, I am of the opinion that there is contributory negligence on the part of the deceased persons also to the extent of Kiran Bansal P.OMACT (NorthEast) MACT No. 29/11,30/11 & 34/11 Page 9/19 25%.
Therefore, in view of the record of the criminal case record regarding the accident, it is proved that all the deceased Mohd. Qasim, Mohd. Mohsin and Master Fazal sustained fatal injuries in the accident which occurred on 08/03/2009 due to rash and negligent driving of offending vehicle bearing no. HR 38M 2975 driven by its driver i.e Respondent no. 1 and also partly due to triple riding by the deceased persons. The issue is decided accordingly.
6. ISSUE NO. 2 in MACT No. 29/11Whether petitioners are entitled to compensation? If so to what amount and from whom ?
Income of deceased Mother of deceased has examined herself as PW1 and stated in her affidavit Ex. PW1/A that deceased was doing business and was earning Rs. 5000/- per month. But no documentary proof regarding the income of the deceased has been placed on record and therefore, his income is assessed on the basis of minimum wages applicable on the date of accident i.e Rs. 3934/-. Age of deceased In her affidavit PW1 has stated that deceased was 20 years old. As per ration card Ex. PW1/4 the year of birth of deceased was 1987 and as per postmortem report, the age of the deceased was 20 years. Therefore, his age was approx. 20-22 years as on the date of accident.
Ld. Counsel for Insurance Co. has also argued that as the mother of the deceased is aged about 43 years and therefore, multiplier applicable would be 14 whereas as per the ld. Counsel for the plaintiff, as the deceased was aged between 20-22 years, multiplier of 18 should be applicable on the basis of the age of the deceased and not on the basis of age of mother of the deceased.
10. In M. Mansoor & Anr. Vs. United India Insurance Co. Ltd. & Anr., Kiran Bansal P.OMACT (NorthEast) MACT No. 29/11,30/11 & 34/11 Page 10/19 2013 STPL(web)860SC, Supreme Court of India and Amrit Bhanu Shali & Ors. Vs. National Insurance Co. Ltd. & Ors. 2012 VI AD(S.C.) 399 Civil Appeal no. 3397 of 2012, It has been held that the selection of multiplier is to be based on the age of the deceased and not on the basis of the age of dependents.
11. In Mohd. Hasnain & Ors. Vs. Jagram Meena & Ors. MAC. ACC 152/2014 decided by Hon'ble Justice Suresh Kait, of Hon'ble High Court of Delhi, on 24.03.2014, the question of appropriate multiplier in the case of unmarried deceased was raised and the issue, whether the multiplier is to be ascertained on the basis of age of the deceased or on the basis of age of the claimants was answered.
It was held that in the ascertainment of purchasing capacity of the victim, the age of the claimant has no relevance because of the fact that it has no nexus with the assessment of the loss of dependency. It was further held that ........(i) age of the deceased (ii) income of the deceased and (iii) number of dependents are to be taken into account for the purpose of selecting the multiplier. In the assessment of dependency, the courts/tribunals are computing the purchasing capacity of the deceased; not the claimants and therefore, the age of the victim is the proper factor for selecting the correct multiplier.
In the judgement Munna Lal Jain and Others Vs. Vipin Kumar Sharma and Others MANU/SC/0640/2015 decided by Hon'ble Supreme Court on 15/05/2015 it has been held that multiplier is to be used with reference to the age of the deceased. It was further held that 50% of the deduction is to be made in case of bachelor. On the aspect of future prospects, it was also held that in case of self employed persons also, if the deceased is below 40 years, there must be addition of 50% to the actual income of the deceased while computing future prospects Therefore, multiplier to be applied is 18. Deceased was unmarried and Kiran Bansal P.OMACT (NorthEast) MACT No. 29/11,30/11 & 34/11 Page 11/19 was taking care of his father and mother. PW1 has stated on oath that her husband is a labourer. Father of deceased is thus, able bodied person and is thus, not considered to be dependent upon the deceased. Deceased had thus, only one dependent i.e. his mother, petitioner no. 1. Therefore, 1/2 is deducted for his personal expenses. Therefore, the total loss of dependency would be calculated as follows :
Rs. 3934/- (Per month) X 12 (Annual) X 18 (Multiplier) = Rs. 8,49,744/-.
Rs.8,49,744/- + Rs. 4,24,872/- (50% future prospects) = Rs. 12,74,616/-. Rs.12,74,616/- - Rs. 6,37,308/- (1/2 for personal expenses) = Rs.6,37,308/-
25% of the above amount is deducted towards contributory negligence and hence, the petitioners are entitled to an amount of Rs. 6,37,308/- -1,59,327 (25% contributory negligence) = Rs. 4,77,981/- towards pecuniary damages.
Besides this, petitioner is also entitled for compensation under the following heads:-
Love and affection Rs. 100,000/-
Loss of Estate Rs. 10,000/-
Funeral expenses Rs. 25,000/-
Total Rs.1,35,000/-
Thus, the total compensation would amount to Rs. 6,12,981/-7. ISSUE NO. 2 in MACT No. 30/11
Income of deceased Mother of deceased has examined herself as PW1 and stated in her affidavit Ex. PW1/A that deceased was doing business and was earning Rs. 5000/- per month. But no documentary proof regarding the income of the deceased has been placed on record.
Kiran Bansal P.OMACT (NorthEast) MACT No. 29/11,30/11 & 34/11 Page 12/19 Age of deceased In her affidavit PW1 has stated that deceased was 18 years old. As per ration card Ex. PW1/4, the year of birth of deceased was 1992 and as per postmortem report, the age of the deceased was 15 years. Therefore, taking into account the ration card, his age is taken to be 17 years on the date off accident.
In order to determine the compensation for a child of 17 years. I am being guided by the judgment of Hon'ble High Court of Delhi in case titled as Chetan Malhotra Vs. Lala Ram in MAC. APP. 554/2010 decided on 13/05/2016. The Hon'ble High Court of Delhi while deciding the compensation for children in para 71 has held as under:-
"71. Subject to all other requisite conditions being fulfilled, for the foregoing reasons, in order to bring about consistency and uniformity in approach to the issue, it is held that claims for compensation on account of death of children shall be determined as follows:
(i) Till such time as the law is amended by the legislature, or the Central Government notifies the amendment to the Second Schedule in exercise of the enabling power vested in it by Section 163-A (3) of the Motor Vehicles Act, 1988, and except in cases wherein the prospects of employability and earnings (in future or present) of the deceased child are proved by cogent and irrefutable evidence, this having regard, inter alia , to the academic record or training in special talents or skills, for computing the pecuniary damages on account of the loss to estate, the notional income of non-earning persons (Rs. 15,000/- p.a.) as specified in the Second Schedule (brought in force from 14.11.1994), shall be assumed to be the income of the deceased child, and taken into account after it is inflation-corrected with the help of Cost Inflation Index (CII) as notified by the Government of India from year to year under Section 48 of the Income Tax Act, 1961, by applying the formula indicated hereinafter.
Kiran Bansal P.OMACT (NorthEast) MACT No. 29/11,30/11 & 34/11 Page 13/19
(ii) For inflation-correction, the financial year of 1997-1998 shall be treated as the "base year" and the value of the notional income relevant to the date of cause of action shall be computed in the following manner:-
Rs. 15,000/- X A /331 [ wherein the figure of 'Rs. 15,000/-' represents the notional income specified in the second schedule requiring inflation-correction; 'A' represents the CII for the financial year in which the cause of action arose (i.e the accident / death occurred); and the figure of '331' represents the CII for the 'base year']
(iii) After arriving at an appropriate figure of the present equivalent value of the notional income (i.e. inflation-corrected amount), it shall be rounded off to a figure in next thousands of rupees.
(iv) The amount of notional income thus calculated shall be reduced to two-
third, the deduction to the extent of one-third being towards personal & living expenses of the deceased, the balance taken as the annual loss to estate (hereinafter also referred to as "the multiplicand").
(v) For assessment of the pecuniary damages on account of the death of children upto the age of 10 years, the loss to estate shall be calculated, capitalizing the multiplicand, by applying the multiplier of ten (10).
(vi) For children of the age-group of more than 10 years upto 15 years, the loss to estate shall be calculated by applying the multiplier of fifteen (15).
(vii) For children of the age-group of more than 15 years but less than 18 years, the loss to estate shall be calculated by applying the multiplier of eighteen (18).
(viii) After the pecuniary loss to estate has been worked out in the manner indicated above, an amount equivalent to the amount thus computed shall be added to it as the composite non-pecuniary damages taking care of not only the conventional heads but also towards future prospects as awarded in R.K. Malik Kiran Bansal P.OMACT (NorthEast) MACT No. 29/11,30/11 & 34/11 Page 14/19 v. Kiran Pal (2009) 14 SCC 1.
(ix) The final sum thus arrived at, appropriately rounded off, if so required to the nearest (if not next) thousands of rupees, shall be awarded as compensation for the death of the child.
Thus, the total compensation that deserves to be awarded in this case is as follows.
Rs. 15,000/- X 582 / 331 = Rs. 26,374.6 (rounded off to nearest thousand) = Rs. 27,000/-
Rs. 27,000/- X 2 /3 = Rs. 18,000/- X 15 (multiplier) = Rs. 2,70,000/- 25% of the above amount is deducted towards contributory negligence and hence, petitioners are entitled to 2,70,000/- - Rs. 67,500/- (25% contributory negligence) = Rs. 2,02,500/- towards pecuniary damages plus an amount of Rs. 2,70,000/- towards pecuniary damages and thus, the total compensation comes to Rs. 4,72,500/-
8. ISSUE NO. 2 in MACT No. 34/11Whether petitioners are entitled to compensation? If so to what amount and from whom ?
PW1 mother of the deceased has examined herself as PW1 and stated on oath that deceased was 7 years old. However, no proof regarding the educational qualification of deceased has been placed on record. As per the ration card Ex. PW1/4 the year of birth of deceased was 2003. As per postmortem report, the age of the deceased was 06 years. Therefore, his age was approx. 6-7 years as on the date of accident.
The compensation for a child of 6-7 years is also to be decided in view of the case Chetan Malhotra Vs. Lala Ram (Supra) Thus, the total compensation that deserves to be awarded in this case is as follows.
Kiran Bansal P.OMACT (NorthEast) MACT No. 29/11,30/11 & 34/11 Page 15/19 Rs. 15,000/- X 582 / 331 = Rs. 26,374.6 (rounded off to nearest thousand) = Rs. 27,000/-
Rs. 27,000/- X 2 /3 = Rs. 18,000/- X 10 (multiplier) = Rs. 1,80,000 /- 25% of the above amount is deducted towards contributory negligence and hence, petitioners are entitled to an amount of Rs. 1,80,000/- - Rs. 45,000/- = Rs. 1,35,000/- towards pecuniary damages and an amount of Rs. 1,80,000/- towards non-pecuniary damages. Thus the petitioners are entitled to an amount of Rs. 3,15,000/- as compensation.
9. Liability Respondent no.3 being insurance company in its written statement has admitted that there is valid insurance policy issued for the period from 06/02/2009 to 05/02/2010 bearing Insurance Policy No. 271702/31/2009/10220. However respondent no. 3 has examined Sh. K.K. Sharma as R3W1 to prove that the offending vehicle did not had a valid fitness certificate on the date of accident.
Ld. Counsel for Insurance Co. has argued that Insurance Co. is not liable to pay any compensation as the fitness of offending vehicle was not valid on the date of accident. However, in Delhi Transport Corporation & Ors Vs. National Insurance Co. Ltd & Anr Mac. App. 361/2010 MANU/DE/3212/2012 decided on 23/04/2012 by Hon'ble High Court of Delhi, also contention was raised that the offending vehicle did not had a valid fitness certificate and that the recovery right granted to Insurance Co. were erroneously granted. The appeal of the DTC was allowed and the order granting recovery rights to Insurance Co. due to non possession of valid fitness certificate was set aside.
Kiran Bansal P.OMACT (NorthEast) MACT No. 29/11,30/11 & 34/11 Page 16/19 In The New India Assurance Co. Ltd Vs. Kumud Devi & Ors. Mac. App. 520/2010 MANU/DE/3828/2012 decided on 07/08/2012 by Hon'ble High Court of Delhi, it was observed that even if the vehicle did not possess any fitness certificate on the date of accident, none of the sub-clause of section 149 of Motor Vehicle Act empowers Insurance Co. to avoid the award. The contention that the insurer were not liable to pay any compensation as the offending vehicle did not possess any valid fitness certificate on the date of accident was rejected.
In view of the above two case laws, Insurance Co. cannot avoid its liability to pay compensation on the ground that offending vehicle did not possess valid fitness certificate on the date of accident.
10. Relief in MACT No. 29/11Award is passed directing Respondent no. 3, M/s Oriental Insurance Co. Ltd. to pay to the claimant/petitioner no. 1 a sum of Rs. 6,12,981/- (including interim compensation, if any) by way of depositing cross cheque in favour of petitioner no. 1 along with interest @ 9% per annum from the date of filing of the claim petition (i.e. 15/01/2011). If award is not complied within 30 days, respondent no.3 shall pay penal interest @ 12% p.a. for the default period. Upon deposit of award amount, cheque be deposited in any nationalized bank and the bank manager of said bank is directed to prepare FDRs of the 50% of the award amount for a period of five years with monthly interest to be credited in her saving bank account and the remaining amount be released to petitioner no. 1.
11. Relief in MACT No. 30/11Award is passed directing Respondent no. 3, M/s Oriental Insurance Co. Ltd. to pay to the claimant/petitioner no. 1 a sum of Rs. 4,72,500/- (including interim compensation, if any) by way of depositing cross Kiran Bansal P.OMACT (NorthEast) MACT No. 29/11,30/11 & 34/11 Page 17/19 cheque in favour of petitioner no. 1 along with interest @ 9% per annum from the date of filing of the claim petition (i.e. 15/01/2011). If award is not complied within 30 days, respondent no.3 shall pay penal interest @ 12% p.a. for the default period. Upon deposit of award amount, cheque be deposited in any nationalized bank and the bank manager of said bank is directed to prepare FDRs of the 50% of the award amount for a period of five years with monthly interest to be credited in her saving bank account and the remaining amount be released to petitioner no. 1.
12. Relief in MACT No. 34/11Award is passed directing Respondent no. 3 M/s Oriental Insurance Co. Ltd. to pay to the petitioners a sum of Rs. 3,15,000/- by way of depositing cross cheque in favour of petitioners no. 1 and 2 in equal proportion, along with interest @ 9% per annum from the date of filing of the claim petition (i.e. 18/01/2011). If award is not complied within 30 days, respondent no. 1 and 2 shall pay penal interest @ 12% p.a. for the default period. Upon deposit of award amount, cheque be deposited in any nationalized bank and the bank manager of said bank is directed to prepare FDRs of the 50% of the award amount in the name of the petitioner 1 and 2 for a period of five years with monthly interest to be credited in their saving bank accounts and the remaining amount be released to petitioner 1 and 2. Branch Manager shall comply with following directions in all the above cases in respect of FDR's.
(a) Withdrawal from the aforesaid account shall be permitted to the petitioners after due verification and the bank shall issue photo identity card of petitioner to facilitate identity.
(b) No cheque book be issued to the petitioners without the permission of the court.
Kiran Bansal P.OMACT (NorthEast) MACT No. 29/11,30/11 & 34/11 Page 18/19
(c) The original fixed deposit receipts shall be retained by the bank in the safe custody. However, the original pass book shall be given to the petitioners along with photocopy of the FDRs.
(d) The original fixed deposit receipt shall be handed over to the petitioners on the expiry of the period of the FDRs.
(e) No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the permission of the court.
(f) The petitioners shall furnish all the relevant documents for opening of the saving bank account and fixed deposit account to the Branch Manager, any nationalized bank.
13. Put up for compliance on 19/08/2016.
Attested copies of the award be furnished to the concerned parties from court for compliance. File be consigned to record room.
Pronounced in Open Court on (KIRAN BANSAL)
19/07/2016 P.O. MACT(North-East)
KKD Delhi
Kiran Bansal
P.OMACT (NorthEast)
MACT No. 29/11,30/11 & 34/11 Page 19/19