Delhi District Court
Satto Devi vs Pinku Kumar on 6 July, 2024
IN THE COURT OF MS. MAYURI SINGH
P.O : MOTOR ACCIDENT CLAIMS TRIBUNAL
EAST DISTRICT : KARKARDOOMA COURTS: DELHI
In the matter of :
MACP No. 43/2019
CNR No. DLET01-002185-2019
1. Smt. Satto Devi
W/o late Sh. Ompal Singh
2. Neetu
W/o Sh. Sanjeev
3. Vikas Kumar
S/o Late Sh. Ompal Singh
4. Nishu
W/o- Sh. Pravin Tomar
5. Kuldeep Kumar
S/o- Late Sh. Ompal Singh
All R/o H.No.49, Mundbhar,
Distt. Muzaffar Nagar, U.P.-251319.
......
Petitioners Versus
1. Pinku Kumar (Driver) S/o Sh. Atal R/o- Village- Kurawa, P.S.- Phugana, Distt. Muzaffar Nagar, U.P.
2. Pooja Sharma D/o- Sh. Rajendra Sharma R/o- 4/3100, Kanti Nagar, P.S. Krishna Nagar, Delhi-110051.
3. The New India Assurance Co. Ltd 12/1, Jeevan Raksha Building, Asaf Ali Road, New Delhi ....... Respondents MACP No. 43/2019 Satto Devi & Ors. Vs. Pinku Kumar & Ors. Page 1 of 23 Date of Institution : 08.03.2019 Date of Reserving : Not Reserved Date of Judgment : 06.07.2024 AWAR D
1. By this award, claim petition under section 166 & 140 of Motor Vehicles Act, 1988, would be decided.
2. The important facts of the case are as under:- Deceased Sh. Ompal Singh, husband of Petitioner No.1, father of Petitioner No.2 to Petitioner No.5, died on account of a motor accident which happened on 16.05.2018 at about 05:00 p.m., near Electric House (Bijli Ghar), Village-Kharad, P.S.- Phugana, Distt. Muzzafar Nagar. In connection with this accident, an FIR No.35/2018, u/s 279/337/338/304-A IPC, was registered at PS Phugana, Distt. Muzaffar Nagar, U.P. on 19.05.2018. As per FIR, at the relevant time, the deceased alongwith his nephew Sachin was going towards Village Mundbhar from Phugana Gate by motorcycle No. Up-12AR-1324 (Super Splendor), which was being driven by Sachin at a normal speed and on correct side of the road. When the motorcycle reached near Electric House (Bijli Ghar), Village- Kharad, P.S.- Phugana, Distt. Muzaffar Nagar, in the meanwhile, a Car bearing Registration No. DL-7CB-7757 (Maruti 800), which was being driven by its driver/Respondent No.1 at a very high speed, rashly, negligently without taking necessary precautions, without proper lookouts, violating the MACP No. 43/2019 Satto Devi & Ors. Vs. Pinku Kumar & Ors. Page 2 of 23 traffic rules and without blowing any horn came from inside of Electric House (Bijli Ghar) and hit the motorcycle with a great force. As a result of this, they fell down on the road alongwith his motorcycle and Sh. Ompal Singh sustained grievous injuries. He was immediately taken to SDS Global Hospital, Meerut. Thereafter, he was taken to Jai Prakash Narayan Apex Trauma Centre (AIIMS), New Delhi, where his MLC was prepared by the doctor, where he died during the course of the treatment on 25.05.2018 at about 01:15 p.m. His postmortem was conducted at mortuary Jai Prakash Narayan Apex Trauma Center (AIIMS), New Delhi.
3. On service of notice of the petition, all the three respondents marked appearance and filed their written statements. Respondent No.1 filed written statement mentioning that the allegation and demands as made in the case are baseless, misconceived and concocted. It is further submitted that the petitioner has suppressed all true and material facts and is liable to be prosecuted as she has tried to hide her wrongs and the wrongs of her family members. It is further submitted that the vehicle is insured by the New India Assurance Company Ltd. R2 has filed his written statement separately and mentioned that no accident had taken place with the alleged vehicle and petitioner had already sold the vehicle in the year 2013 to one Sh. Parvesh Kumar Sharma, who is maternal cousin of the husband of the Respondent No.2 and since then the above-mentioned vehicle is in possession of above named Parvesh MACP No. 43/2019 Satto Devi & Ors. Vs. Pinku Kumar & Ors. Page 3 of 23 Kumar Sharma and Respondent No.2 has no concern of any kind of the above-said vehicle. The insurance company/ Respondent No.3 has filed its written statement separately and it is specifically stated in the written statement that as per FIR, the driver of the offending vehicle is unknown and the compliant has not given the statement that he can recognize the driver of the offending vehicle. As per the petition and it's annexures, the name of the driver is neither given in the FIR nor mentioned in the statement of Sachin with whom the deceased was a pillion rider. It is further submitted that the driver of the motorcycle, on which the deceased was pillion rider, was not holding DL at the time of accident. Other general defences have been taken by R3/Insurer.
4. On the basis of pleadings, following issues were framed on 05.12.2019 :-
(i) Whether Om Pal Singh died in a motor vehicular accident, which happened on 16.05.2018 at about 5:00 p.m. near Bijli Ghar village Kharad, Phugana- Lalu Khedi Road, District- Muzaffar Nagar, U.P., within the jurisdiction of PS Phugana, due to rash and negligent driving of car bearing registration No. DL-7CB-7757 (Wagon R) by the Respondent No. 1 /Pintu Kumar? (OPP)
(ii) Whether the petitioners are entitled to any compensation on account of death and if yes, to what extent and from whom? (OPP)
(iii) Whether the petitioners are entitled to interest on the award amount, if so, at what rate of interest and for which period?MACP No. 43/2019 Satto Devi & Ors. Vs. Pinku Kumar & Ors. Page 4 of 23
5. Petitioner side examined two witnesses.
5(i). Petitioner No.1 Satto Devi (PW1), herself stepped into the witness box and deposed about the manner of accident and relied upon the following documents:
(i) Copy of Aadhar Card of deceased Sh. Om Pal is Ex.PW1/1
(ii) Copy of my Aadhar Card is Ex.PW1/2
(iii) Copy of Aadhar Card of Neetu (Petitioner No.2) is Ex.PW1/3
(iv) Copy of Aadhar Card of Vikas Kumar (Petitioner No.3) is Ex.PW1/4
(v) Copy of Aadhar Card of Nishu (Petitioner No.4) is Ex.PW1/5
(vi) Copy of Aadhar Card of Kuldeep Kumar (Petitioner No.5) is Ex.PW1/6
(vii) Certified copy of criminal case is Ex.PW1/7 5(ii). PW2 Sh. Sachin Kumar has been examined as an eye-witness to the accident and deposed that on 15.05.2018, he alongwith his Tau Ompal Singh was going towards village Mundbhar, District-Muzzafarnagar on motorcycle bearing UP-12AR-1324, being driven by him and deceased Ompal Singh being a pillion rider. When they reached near New Electric House Village Kharad, the offending car bearing No.DL-7CB-5557 came being driven at a very high speed and MACP No. 43/2019 Satto Devi & Ors. Vs. Pinku Kumar & Ors. Page 5 of 23 rash and negligent manner, from inside the electric house and hit the motorcycle with a great force. As a result of this, they fell down on road alongwith motorcycle and sustained injuries. Both of them were taken to SDS Global Hospital, Meerut immediately. Sachin Kumar was discharged on the same day after first date, whereas aid Ompal Singh was taken from SDS Global Hospital, Meerut to Jai Prakash Narayan Apex Trauma Centre ( AIIMS), New Delhi, where he died during the course of the treatment on 25.05.2018.
Thereafter, PE was closed.
6. R3 has examined two witnesses i.e. R3W1 & R3W2 in its defence.
6 (i) R3W1 deposed in his testimony by way of affidavit that fitness of the offending vehicle was not valid. He proved on record copy of insurance policy Ex.R3W1/1. He deposed that inspite of service of notice to driver and owner, they failed to provide fitness of the vehicle and hence, insurance company is not liable to pay any compensation as there is violation of policy conditions. He proved on record copy of notice Ex.R3W1/2 and postal track report Ex.R3W1/3.
6(ii) R3W2 Sh. Arun Kumar deposed that the RC of the offending vehicle is valid upto 04.07.2017 in the name of Pooja Sharma, as on date, the status of RC is registered and further that there is no procedure MACP No. 43/2019 Satto Devi & Ors. Vs. Pinku Kumar & Ors. Page 6 of 23 to send notice to Registered Owner for informing about the expiration of vehicle registration and fitness and further that the applicant (RC holder) may get transferred their vehicle to other state or get it scrapped after completing the age in NCT of Delhi. He produced the detailed record/report Ex.R3W2/B during his testimony recorded before the Tribunal.
Both of the RWs were cross-examined by Ld. Counsel for petitioner.
7. I have heard Sh. Kumar Shivam, counsel for petitioners and Sh. Vimal Kumar Singh, Ld. Counsel for Respondent No. 1 & R2 (present on 04.07.2024) and Ms. Vandana Surana, Ld. Counsel for R3/ insurer. Record of the case has also been perused.
ISSUE NO. 18. 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 in fact is the preponderance of probabilities which is applied in civil cases. It is also the law that the tribunal is not bound by the technical rules of evidence. Further, in holding any inquiry under section 168, The Claims Tribunal may follow such summary procedure as it thinks fit.
MACP No. 43/2019 Satto Devi & Ors. Vs. Pinku Kumar & Ors. Page 7 of 239. In order to prove the case, petitioners examined two witnesses i.e. wife of the deceased/P1 and eye-witness namely Sachin Kumar. PW2 testified that on 15.05.2018, he alongwith his Tau Ompal Singh was going towards village Mundbhar, District-Muzzafarnagar on motorcycle bearing UP-12AR-1324, being driven by him and deceased Ompal Singh being a pillion rider. When they reached near New Electric House Village Kharad, the offending car bearing No. DL-7CB-5557 came there, being driven at a very high speed and rash and negligent manner, from inside the electric house and hit the motorcycle with a great force. As a result of this, they fell down on road alongwith motorcycle and sustained injuries. Both of them were taken to SDS Global Hospital, Meerut immediately. Sachin Kumar was discharged on the same day after first date, whereas aid Ompal Singh was taken from SDS Global Hospital, Meerut to Jai Prakash Narayan Apex Trauma Centre (AIIMS), New Delhi, where he died during the course of the treatment on 25.05.2018. The mechanical inspection report of the offending car reflects damage in front portion. The medical document of AIIMS shows that the victim was taken there on 16.05.2018 with alleged history of road traffic accident on 16.05.2018 near Burhana Kasba, Muzzafar Nagar U.P. and then he was taken to SDS Global Hospital, Meerut first and given first aid there and then referred to AIIMS Trauma Centre. The copy of postmortem report shows that the cause of death was opined as cranio-cererbral damage consequent upon blunt force impact to the head MACP No. 43/2019 Satto Devi & Ors. Vs. Pinku Kumar & Ors. Page 8 of 23 and that all injuries was ante-mortem in nature caused by blunt force/impact.
10. Respondent no.1 & Respondent No.2 i.e. Driver and Owner of the offending vehicle did not lead any evidence to prove anything contrary to the claim of the petitioner. In the case of Cholamandalam MS General Insurance Company Ltd vs Smt. Kamlesh and Others2009 (3) AD Delhi 310 it was held that an adverse inference can be drawn when the driver of the offending vehicle does not enter into the witness box.
11. After investigation, police filed the charge-sheet against respondent no. 1/Pintu Kumar, the driver of the offending car. Filing of charge-sheet against the driver of offending vehicle prima-facie points to his culpability. (New India Assurance Company Ltd vs Smt. Washeema Bano (2022) SCC OnLine All 403 and Mangla Ram vs Oriental Insurance Company Ltd (2018) 5SCC 656).
12. In New India Assurance Company Ltd vs Pazhaniammal (2011) (2) KLT 648, the Hon'ble High Court of Kerala has held that as a general rule, it can be accepted that production of charge-sheet is prima-facie sufficient evidence of negligence for the purpose of claim under section 166 MV Act. If any party does not accept such charge-sheet, the burden must be on such party to adduce evidence. If the Tribunal feels that charge-sheet is collusive, it can record that MACP No. 43/2019 Satto Devi & Ors. Vs. Pinku Kumar & Ors. Page 9 of 23 charge-sheet cannot be accepted and call upon the parties at any stage to adduce oral evidence of accident and alleged negligence. In such cases, issue of negligence must be decided on other evidence ignoring the charge-sheet.
13. Thus, in view of the above, this Tribunal is of the opinion that petitioners have been able to prove that there is sufficient material on record to establish that the accident had occurred due to rash and negligent driving of the offending vehicle by respondent no.1 and that resulted into fatal injuries to the deceased victim Sh. Ompal Singh. Therefore, Issue No.1 is decided in favour of petitioners.
ISSUE No. 2.
14. 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 it to be just and reasonable. The compensation should not be a windfall or a bonanza nor it should be pittance.
ASSESSMENT OF INCOME OF THE DECEASED:
15. PW1 is the wife of the deceased and one of the claimants. It has come in his evidence that deceased was her husband aged 59 years 4 months and he was working as a Munsi at Subzi Mandi, Shahdara, Delhi and getting monthly salary of Rs.12,000/- to Rs.15,000/- per month. In proof of the economic status of deceased, PW1 had not filed on record MACP No. 43/2019 Satto Devi & Ors. Vs. Pinku Kumar & Ors. Page 10 of 23 any income and occupation proof of deceased. Petitioners have not filed any documents in support of the educational qualification of the deceased. No bank account statement of the deceased is filed either. Further, though it is claimed that deceased was working in Delhi, it is seen that in the entire criminal case record, including his medical documents and FIR, his address is mentioned as that of village Mangat, Mundbhar, Mujaffar Nagar, Uttar Pradesh. His Aadhar as well as Adhar card of the petitioners show that the petitioners and deceased were residents of Uttar Pradesh. In the claim petition as well, address of the deceased is mentioned as that of Uttar Pradesh. In the absence of any income proof and education related proof of the deceased victim, his income has to be considered, being a resident of Uttar Pradesh, as per the minimum wages applicable to an unskilled worker on the date of accident i.e. 16.05.2018. Hence, his income is considered to be Rs.7,613/- per month.
APPLICATION OF MULTIPLIER:
16. The age of deceased was 59 years 4 months at the time of accident as per his Aadhar card Ex.PW1/1 shows his date of birth as 01.01.1959. An appropriate multiplier has to be determined for computation of compensation. The judgment titled as Sarla Verma v. DTC (2009) 6 SCC 121 is relevant to consider the multiplier. In Para 21 of the judgment, the guidelines for the multiplier were laid down in accordance with age are as under:-
MACP No. 43/2019 Satto Devi & Ors. Vs. Pinku Kumar & Ors. Page 11 of 23 MULTIPLIER AGE GROUP OF
DECEASED
M-18 Age group between 15 to 20 &
21 to 25 years)
M-17 Age group between 26 to 30
yrs
M-16 Age group between 31 to 35
yrs
M-15 Age group between 36 to 40
yrs
M-14 Age group between 41 to 45
yrs
M-13 Age group between 46 to 50
yrs
M-11 Age group between 51 to 55
yrs
M-9 Age group between 56 to 60
yrs
M-7 Age group between 61 to 65
yrs
M-5 Age group between 66 and
above
Therefore, the multiplier of 9 which is applicable to age group between 56-60 years shall be applicable in this case.
MACP No. 43/2019 Satto Devi & Ors. Vs. Pinku Kumar & Ors. Page 12 of 23FUTURE PROSPECTS:
17. This issue was considered by the Hon'ble Supreme Court in the case of Pranay Sethi & Others (Supra). Relevant parts of the judgment are reproduced here as under:
"(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."
18. The deceased can be presumed to be as self-employed. Since the deceased Ompal was under the age of 60 years, future prospects to the tune of 10% shall be added to his income.
MACP No. 43/2019 Satto Devi & Ors. Vs. Pinku Kumar & Ors. Page 13 of 23DEDUCTION TOWARDS PERSONAL LIVING EXPENSES:
19. After choosing the age, multiplier and income of the deceased, necessary deductions have to be made out of the income of the deceased towards her personal expenses. Hon'ble Supreme Court in case titled as Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65, in para 30, laid down the necessary deductions towards personal living and expenses of deceased as under :
Deductions out of earning of the Number of deceased dependents Married Persons Where dependent is 1 Half Where the number of dependent family 1/3rd members is 2 to 3 Where the number of dependent family 1/4th members is 4 to 6 Where the number of dependent family 1/5th members exceeds 6 (six) Deductions out of earning of the Number of deceased dependents Bachelor In case family is not large Half In case dependents are the widowed 1/3rd mother and large number of younger MACP No. 43/2019 Satto Devi & Ors. Vs. Pinku Kumar & Ors. Page 14 of 23 non-earning sisters and brothers
20. Petitioners are wife and children of the deceased. Petitioner Nos. 2 ,3 & 4 are stated to be married children of the deceased and cannot be considered dependents of the deceased. As per the memo of parties, son Vikas Kumar was unmarried on the date of accident but aged 26 years on the date of filing of the claim petition in year 2019. During her cross-examination, PW1 deposed that her son Vikas is married but does not state anywhere he got married after filing of the claim petition. In any case, Vikas, even if unmarried on the date of the accident, he was more than 25 years old and it is not claimed that he was non working or dependent on his father at the time of accident. Hence, he cannot be considered as dependent of deceased. Ld. Counsel for petitioners submitted that though major and about 22 years old on the date of accident, petitioner No. 5 was dependent on his father on the date of accident and not working and further that one of the married daughters had matrimonial dispute and thus, there are three dependents of the deceased, including his mother. Ld. Counsel for Insurance Company has disputed it on ground that deceased was a labour class person and his major son must have been working and cannot be considered as a dependent in absence of any proof to show that he was studying or that he was unemployed for any just reason. I find force in submission of Ld. Counsel for the insurer. P5 was a major on the date of accident and nothing has been brought on record to suggest that he was studying or MACP No. 43/2019 Satto Devi & Ors. Vs. Pinku Kumar & Ors. Page 15 of 23 unable to work. Further, though PW2 has claimed that married daughter of the deceased was dependent on parental family due to matrimonial dispute, no evidence in this regard was produced before the Tribunal and neither the daughter herself stepped into witness box nor her mother deposed anything in her testimony in this regard. Even in the claim petition, no such claim has been made and only in the testimony of PW2, such a claim has been made for the first time. Further, it is seen that though it is claimed by petitioner that her younger son was studying in Class 12th, no evidence in this regard was produced before the Tribunal. Further contrary to the testimony of PW1, PW2 deposed that both of the sons of the deceased were farmers by avocation. In the absence of anything to suggest that husband of P1 was not supporting her or that she was residing at her parental home, none of the daughters can be considered as dependent of deceased. It is relevant here to mention that name of daughter and identity, who was claimed to be dependent on deceased, is not disclosed by PW2. Further, P5 was a young man, aged 22 years and in the absence of anything to suggest that despite being a major, he was still a dependent of the deceased as studying, he cannot be considered as dependent of the deceased. Hence, only petitioner No.1 can be considered as dependent of the deceased being his wife. Hence, an amount of 50% has to be deducted for personal and living expenses of the deceased.
MACP No. 43/2019 Satto Devi & Ors. Vs. Pinku Kumar & Ors. Page 16 of 2321. Thus, the loss of dependency is computed as Rs.4,52,212/- (7613 x 1/2 x 110/100 x 12 x 9).
NON-PECUNIARY DAMAGES:
22. In case of Pranay Sethi (supra), a compensation of Rs.40,000/-, 15,000/- and Rs.15,000/- respectively has been fixed on account of loss of consortium, loss of estate and funeral expenses and further, it is required to be enhanced @ 10% in every three years. Therefore, a compensation of Rs.48,000/-, 18,000/- and Rs.18,000/- respectively on account of loss of consortium, loss of estate and funeral expenses is required to be granted. Further, in view of recent decision of Hon'ble Supreme Court in the case titled as United India Insurance Co. Ltd. Vs. Satinder Kaur @ Satwinder Kaur & Ors., Civil Appeal no. 2705 of 2020, decided on 30.06.2020, loss of consortium has to be fixed for each of the LRs. In this case, there were five legal heirs of the deceased at the time of accident and filing of the claim petition. Thus, all five claimants are entitled to a sum of Rs.2,76,000/- (48,000x5+18,000+18,000) under this head.
23. Considering the aforementioned factors, the total compensation is calculated as under:
S. No. Head Amount
Awarded
1. Monthly income of deceased (A) Rs.7613/-
MACP No. 43/2019 Satto Devi & Ors. Vs. Pinku Kumar & Ors. Page 17 of 23
2. Add future prospect (B) @ 10% of 7613 =
761.3/-
3. Less 1/2 towards personal and living Rs. 4187.3 = expenses of the deceased (C) 1/2nd of 8374.6(7613+ 761.3)
4. Monthly loss of dependency (A+B)- Rs.4187.3/-
C=D
5. Annual loss of dependency (Dx12) Rs. 50,247.6 6. Multiplier (E) 9
7. Total loss of dependency (Dx12xE=F) Rs.4,52,212/-
8. Medical expenses (G) Nil
9. Compensation for loss of consortium Rs.2,40,000 /-
(I) (48,000x5)
10. Compensation for loss of estate (J) Rs.18,000/-
11. Compensation for funeral expenses Rs.18,000/-
(K)
12. Total compensation Rs. 7,28,212/ rounded off to Rs.7,28,000/-
Thus, the petitioner is entitled for total compensation of Rs.7,28,000/- (Rupees Seven Lakhs Twenty Eight Thousand only).
(ISSUE NO.3) INTEREST :
24. Petitioners shall also be entitled to interest @ 7.5% per annum on the award amount from the date of filing of the petition till its MACP No. 43/2019 Satto Devi & Ors. Vs. Pinku Kumar & Ors. Page 18 of 23 realization. Thus, issue is accordingly decided in favour of the petitioners and against the respondents.
LIABILITY
25. Now, the question arises as to which of the respondents are liable to pay the compensation amount. Insurance company has taken up the plea that the offending vehicle was registered in Delhi and the RC of the offending vehicle had expired, vehicle being more than 15 years old and it could not ply in Delhi or elsewhere without transfer of RC and re-
registration after expiration of 15 years and hence, Insurance Company is not liable to pay compensation, for breach of insurance policy as the offending vehicle has to be considered as the one without having the requisite fitness certificate. I do not find any merit in such a submission. The insurance company, once it was approached to issue insurance policy and paid for the insurance cover and issued an insurance policy without any objection raised at any point of time, it cannot evade from its statutory liability to make good for the compensation to be paid by the insured on his behalf to the victim/ third party. It cannot be lost sight of that there is nothing to suggest that the registration certificate was withheld from the insurance company or that a fake RC was produced at the time of issuance of insurance policy. On the other hand, it is also not proved on record that insurance certificate was issued despite knowledge of the insurance company that the vehicle shall be plied on road in contravention of the conditions of RC and despite expiration of RC and MACP No. 43/2019 Satto Devi & Ors. Vs. Pinku Kumar & Ors. Page 19 of 23 no evidence has been led by R-1 and R-2 to suggest otherwise. Further, I find no merit in the submissions of Ld. Counsel for R1 & R2 that the offending vehicle was a private vehicle and thus had no requirement of fitness. It is to note that after expiration of RC and whenever re- registration is sought, authority has to check the fitness of vehicle to ply on the road, before allowing for re-registration / extension of RC for a period of 5 years as per CMVR. It is relevant here to note that the accident took place in Uttar Pradesh but there is no evidence led by R-1 and R-2 to suggest that despite expiration of 15 years, vehicle could validly ply in Uttar Pradesh on the date of accident on the old RC and without any re-authorization of RC sought from the concerned Transport Department. Further, R3W2 has clearly mentioned in his testimony that as on date, the status of RC of the offending vehicle was "de-registered"
and further that after RC is no longer valid, the registered owner of the vehicle can transfer the vehicle to other State, which was clearly not done in the present case. Further, there is no evidence led by R- and R-2 to suggest that RC was renewed as per the provision of Rule 52 of Central Motor Vehicles Rules, to be plied at the place of accident. It is noted here that the insurance certificate was issued for a period of 1 year, on 24.06.2017 despite expiration of validity of the Registration Certificate after 15 years on 05.03.2017 itself. At the same time, it is seen that in the copy of registration certificate, though date of registration is mentioned, no date of expiry is specified.MACP No. 43/2019 Satto Devi & Ors. Vs. Pinku Kumar & Ors. Page 20 of 23
26. Hon'ble H.P. High Court in case titled National Insurance Company Vs. Kamal Kishore & Ors, decided on 05.07.2019 FAO(MVA) No. 564/2018, it is held that under Section 149 of M.V. Act, there is no such defence available to the insurer for repudiation of claim of third party on the ground of invalid/absence of registration certificate. Perusal of insurance policy in the present case does not reflect that there is any stipulation therein that the insurer will not be liable towards third party risk for want of valid registration certificate of the vehicle. It was further observed that Hon'ble Apex Court, in Narinder Singh Vs. New India Assurance Co. & Ors. held that non-registration of the vehicle is fundamental breach of the policy conditions, however, in order to protect the third party rights, conditions can be construed to be fundamental only against insured and not w.r.t. third party risk. However, this is also spirit of law laid down in "National Insurance Co. Ltd. Vs. Swarn Singh and Orthers (2004) 3 SCC 297. However, since plying of vehicle without valid registration has been held to be fundamental breach of conditions in Narinder Singh's case by Hon'ble Apex Court, therefore, insurance company would be entitled for application of principle of pay and recover from insured as has been held in catena of judgments.
27. In case bearing citation "National Insurance Co. Ltd. Vs. Ram Pher", it has been held that insurance company has to establish any defence under Section 149(2) of MV Act so as to escape out from the liability on insurer to indemnify the insured. Insurance company has to MACP No. 43/2019 Satto Devi & Ors. Vs. Pinku Kumar & Ors. Page 21 of 23 plead and establish any fundamental breach of policy, terms and conditions in plying the vehicle on the road. In case titled as Gurmeet Singh vs. The New India Assurance Co. Ltd & Ors, MAC App 288/2021 decided on 06.10.2023, it has been held that the respondent no. 3 / insure is entitled to recover the compensation amount paid to the claimants. R2 is registered owner of the vehicle and though she has claimed in the written statement that she had sold out the vehicle to someone else, no evidence has been led to show that vehicle was sold and RC was transferred in the name of some other person.
28. In such circumstances and in view of discussion above-said, as insurance company has contractual and statutory liability to indemnify the insured, the Insurance company is liable to compensate the third party / petitioners. However, the insurance company is entitled for recovery of the compensation amount from the respondent No.2/ registered owner, after paying the aforesaid compensation to the petitioners in the first place. In view of above, it is held that respondent no.3/ insurer shall be entitled to pay the compensation amount to the petitioners.
RELIEF:
29. In view of the findings on said issues, this Tribunal awards a total compensation of Rs.7,28,000/- (Rupees Seven Lakhs Twenty Eight Thousand only) alongwith interest @ 7.5% per annum on the aforesaid award amount from the date of filing of the petition till realization in MACP No. 43/2019 Satto Devi & Ors. Vs. Pinku Kumar & Ors. Page 22 of 23 favour of petitioners and against the respondent no. 3/The New India Assurance Company, which shall be recoverable by the insurance company from respondent No.2 / registered owner. This award is required to be deposited with this Tribunal within 30 days.Digitally signed by MAYURI
MAYURI SINGH Date: SINGH 2024.07.06 17:14:47 +0530 Announced in the open (Mayuri Singh) Court on 06.07.2024 Presiding Officer-MACT (East) Karkardooma Courts, Delhi MACP No. 43/2019 Satto Devi & Ors. Vs. Pinku Kumar & Ors. Page 23 of 23