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Delhi District Court

Master Ritik Bajaj vs Savitri Raghuraman on 9 February, 2015

     IN THE COURT OF MS. GEETANJLI GOEL, PO: MOTOR ACCIDENT 
        CLAIMS TRIBUNAL­2, PATIALA HOUSE COURTS, NEW DELHI

                                       Suit No.38/14

Date of Institution: 16.09.2006

IN THE MATTER OF:

1.   Master Ritik Bajaj 
S/o Shri Rajan Bajaj 

2.  Master Rahil Bajaj
S/o Shri Rajan Bajaj

(Minors through
Mrs Ritu Arora, their next friend
but now have attained majority)

Both Residents of:­
E­372, Greater Kailash
Part II,New Delhi­110048.                              ...Petitioners

Versus 

1. Savitri Raghuraman
R/o A­143, Sector 27 
Noida, Gautambudh Nagar 

2. Sanjay Kumar
S/o Shri Pammi Singh
R/o Village Afzalpur Nistauli
Ghaziabad, UP.




Suit No.38/14
Ritik Bajaj Vs.  Savitri Raghu Raman                                    Page No. 1 of 75
 3. Ramkumar
S/o Shri Babu Jatav
R/o Afzalpur, Nistauli
Police Station Sahibabad
Ghaziabad, UP.

4. Mr Rajan Bajaj 
R/o E­372, Greater Kailash, Part II
New Delhi­110048 

5. Oriental Insurance Co. Ltd. 
Oriental House A­25/27
Asaf Ali Road
New Delhi ­110002

Branch Off­ 8, 1576
1st Floor, Church Road
Kashmere Gate
Delhi 110006.                                           ...Respondents

Final Arguments heard                         :   24.01.2015
Award reserved for                            :   09.02.2015
Date of Award                                 :   09.02.2015

AWARD

1. Vide this judgment­cum­award, I proceed to decide the petition filed u/s 166 and 140 of Motor Vehicle Act, 1988, as amended up­to­date (hereinafter referred to as the Act) for grant of compensation in a road accident. Suit No.38/14

Ritik Bajaj Vs. Savitri Raghu Raman Page No. 2 of 75

2. It is the case of the petitioners that on 4.2.2006 at about 4 a.m Mrs. Renu Bajaj (since deceased) as occupant of Toyota Car No.DL5C­B­3456 driven by Mr. Rajan Bajaj was proceeding on Delhi ­ Noida Expressway in front of Mayur School on way from Noida to New Delhi. It is averred that the car was being driven by its driver at a high speed rashly, negligently in disregard to the traffic regulations. It is averred that ahead of the car was a Maruti car bearing registration No.UP­16­A­7841 and the driver of the Toyota Car intended to overtake the Maruti Car ahead of it. It is averred that the Maruti car driver swerved the car slightly to the left and abruptly applied brakes, as a consequence thereof, the Toyota car struck against the rear portion of the Maruti Car, became imbalanced and turned up­side down and the occupant of the car as well as the driver suffered multiple grievous injuries. It is averred that the deceased due to the serious injuries was brought and admitted to Bhardwaj Hospital NH­1 Sector 29, Noida where she was declared brought dead at 4.15 a.m on 4.2.2006. It is averred that the accident was caused on account of composite negligence on the part of the drivers of both the vehicles. It is stated that in respect of the accident FIR was registered at PS Sector 39, Noida, Gautam Budh Nagar. It is averred that the deceased was taken to Bhardwaj Nursing and Maternity Home Pvt. Ltd. Noida.

3. It is averred that the deceased was a young lady of 45 years of age with High Educational Qualifications, sound health and physique and was working as Director in Private Limited Companies of repute, drawing monthly salary of Suit No.38/14 Ritik Bajaj Vs. Savitri Raghu Raman Page No. 3 of 75 Rs.57,200/­ besides perks and she was earning a salary and having bright future prospects. It is averred that the deceased besides pursuing her career as a Director of two companies of repute was also looking after the petitioners as mother and her husband as wife. It is averred that she was spending a major portion of her income for the welfare, upkeep and maintenance of the family and the petitioners assume the monetary value of the services rendered by her to them at a bare minimum of Rs.50,000/­ per month. It is averred that the deceased was very hard­working and a self­made woman and she joined the company at about 19 years age and reached a level of distinction on account of her own efforts. It is averred that the deceased was holding the position as Director in two companies viz. Medisphere Marketing Ltd. and Medidyne Pvt. Ltd. bearing the same address 201,28,29 Link Road, Feroze Gandhi Marg, Lajpat Nagar, New Delhi­24 and was drawing a good remuneration. It is averred that the deceased was having very good health and was very active and she was not addicted to any vice and would have lived for another 45­50 years if not killed in the accident. It is averred that there was a history of longevity in the family of the deceased and the father of the deceased namely Shiv Kumar Raizada aged about 75 years was still alive and healthy. The mother of the deceased namely, Shobhi Raizada aged about 65 years was still alive and healthy. It is averred that the claimants' pleasure and comforts of life had been completely shattered and the deceased had left behind the two petitioners aged 17 years and aged 15 years who were fully dependent upon the deceased for their upbringing, for financial and moral Suit No.38/14 Ritik Bajaj Vs. Savitri Raghu Raman Page No. 4 of 75 support. It is averred that the petitioners No.1 and 2 had lost the love, affection and care provided to them by the deceased mother and the death of Mrs. Renu Bajaj had caused a great loss to the petitioners because it was under

her guidance, support and help that the family was being run. It is averred that the death of the deceased had caused great mental shock to the whole of the family who had been deprived of the assistance that would have been made available to them by the deceased for at least 50 years if not killed in the accident. It is averred that the deceased was spending her entire income on her family and the deceased had earnest desire to provide the best possible education, training and facilities to her children. It is averred that the whole of the family was secure and happy under the guidance and shelter of the deceased and had become emotionally and morally insecure after her death. It is averred that the petitioners are also entitled for compensation for shock, bodily pain and mental tension suffered by the deceased on account of the accident. It is averred that the vehicle of Shri Rajan Bajaj i.e. Toyota Prado bearing No.DL­5CB­3456 was insured with Oriental Insurance Company Ltd., Oriental House A­25/27 Asaf Ali Road, New Delhi. It is prayed that an amount of Rs.2,00,00,000/­ be awarded as compensation in favour of the petitioners and against the respondents. It is averred that at the time of accident the respondent No.1 was driving the offending vehicle and respondent No.2 is the owner of the offending vehicle and the respondent No.3 is the insurance company of the offending vehicle, therefore, all the respondents are liable to pay the compensation to the petitioners jointly or severally. Suit No.38/14

Ritik Bajaj Vs. Savitri Raghu Raman Page No. 5 of 75

4. Written statement was filed on behalf of the respondent No.1 taking the preliminary objection that the respondent No.1 had sold the Maruti 800 car with registration number UP­16A­7841 on 5.8.2004 much before the alleged accident dated 4.2.2006 to Shri Sanjay Kumar s/o Shri Pammi Singh r/o Village Afzalpur, Nistauli, Ghaziabad i.e. the respondent No.2. The averments made in the claim petition were denied. It is denied that the respondent No.1 was the owner of the car No.UP­16A­7841 on the date of the accident. It is averred that the respondent No.1 not being the owner of the Maruti car on the date of the accident had nothing to do with the application for compensation and was in no way connected with the car after its delivery and sale on 5.8.2004.

5. Written statement was filed on behalf of the respondent No.2 taking the preliminary objections that the respondent No.2 did not have any hand in the manner in which the accident had resulted as was clear from the pleadings in the petition itself and the accident had solely and squarely been caused by the rash and negligent driving of the respondent No.4, father of the petitioners who had been driving the car in which the deceased was claimed to have been travelling. It is the specific admission in the petition that his Toyota Car bearing No.DL­5C­3456 was being driven by its driver i.e. the respondent No.4 on the Delhi Noida Expressway in front of Mayur School on way from Noida to New Delhi at a high speed, rashly and negligently in disregard to the traffic regulations and in view of such clear and specific pleadings, there was no Suit No.38/14 Ritik Bajaj Vs. Savitri Raghu Raman Page No. 6 of 75 question of any responsibility being attributed to the driver of the Maruti Car ­ a much smaller car ­ claimed to be driven by its driver specially when it was the car driven by the respondent No.4 in which the petitioners had been traveling along with their deceased mother which went out of control after hitting from behind the Maruti car moving ahead and driven by its driver which had led to the alleged accident. It is averred that the respondent No.4 was definitely responsible for contributory negligence which had led to the accident and to make matters worse, had filed the present petition merely to encash the most unfortunate accident wherein the deceased is claimed to have lost her life. It is averred that the petitioners have failed even to specify the basis on which the amount claimed as compensation has been calculated and the petition has clearly been filed just to encash the unfortunate demise of the mother of the petitioners in the alleged accident. It is averred that the petition is merely an abuse of the process of law and the entire incident is based on the bare allegations of the petitioner's father who was driving his Toyota car in a most irresponsible, negligent and careless manner even though his wife and children were accompanying him and the allegations were wholly insufficient for attributing any fault on the part of the respondent No.2. It is averred that the respondent No.2 had never been involved in the accident wherein the vehicle number had been recorded merely on the basis of information provided by some mischievous element. The averments made in the claim petition were denied. It is averred that the respondent No.2 did not have any part in the events leading to the accident wherein the deceased is claimed to have lost Suit No.38/14 Ritik Bajaj Vs. Savitri Raghu Raman Page No. 7 of 75 her life. It is averred that for any failure of the driver of the Toyota car to move in a safe speed limit and not in a careless manner, the respondent No.2 cannot be penalized. It is averred that the petition is silent about the purpose for which the deceased had been moving with the respondent No.4 at that unearthly hour and also about the physical condition of the respondent No.4, especially when it was the respondent No.4 who had lost control of his car after having driven the same in a high speed, rashly, negligently and in disregard to the traffic regulations which ultimately led to his car swerving uncontrollably and turning upside down and resulting in the alleged injuries to the petitioners' mother. It is averred that the petition does not specify the place from where the respondent No.4 and his wife were coming and there is a distinct possibility of the respondent No.4 being under the intoxication of drugs, liquor or the like owing to which he could not control his car and struck the Maruti car moving ahead of it from behind. It is denied that either the Maruti car or the persons occupying the same had any responsibility for causing the accident. It is averred that it is admitted in the petition that while driving at high speed the respondent No.4 had intended to overtake the Maruti car ahead of it which swerved slightly to the left and abruptly applied brakes and as a consequence thereof, the Toyota car struck against the rear portion of the car. It is averred that if the Maruti car had been hit even after swerving to its left, that would mean that the Toyota car was being driven in a manner so as to overtake the Maruti car from its left side and had thus resulted in the accident and overtaking from the left side is against the traffic rules and Suit No.38/14 Ritik Bajaj Vs. Savitri Raghu Raman Page No. 8 of 75 regulations and for any resulting incident, it would be the respondent No.4 who would be responsible and not the driver of the Maruti car. It is stated that the Toyota car was a much bigger car and according to the provisions of the Act, it was solely responsible for the alleged accident and the resultant injuries suffered by anyone in the accident and the manner in which the accident had occurred even according to the own showing of the petitioners clearly absolves the smaller Maruti car and its driver and owner of any liability or responsibility arising out of such accident. It is averred that the petitioners have failed to explain the basis on which the amount of compensation has been claimed by them.

6. Written statement was filed on behalf of the respondent No.3 taking the preliminary objections that the petitioners have not come with clean hands and have suppressed the material facts from the court. It is averred that no cause of action has arisen in favour of the petitioners as the alleged accident occurred due to fault on the part of the respondent No.4 who was driving the vehicle in which the deceased was aboard at the time of the accident. It is averred that the petition is bad for misjoinder of parties. The averments made in the claim petition were denied. It is averred that the respondent No.3 and the respondent No.2 are friends and on the day of the alleged accident, the respondent No.3 had borrowed the said vehicle from the respondent No.2. It is averred that the alleged accident occurred due to fault on part of the respondent No.4. It is averred that the respondent No.3 is not the regular Suit No.38/14 Ritik Bajaj Vs. Savitri Raghu Raman Page No. 9 of 75 driver of the vehicle. It is averred that the amount of compensation is highly exaggerated and the respondent No.3 is not liable for the same as the accident was caused due to the fault on the part of the respondent No.4. It is averred that at the time of the alleged accident, the car driven by the respondent No.3 was ahead of the car being driven by the husband of the deceased. The respondent No.3 was driving the car at reasonable speed and in compliance of all the traffic rules. It is averred that the driver of the Toyota car was persistently blowing horns to overtake the respondent No.3. However as the way ahead of the car of the respondent No.3 was not clear, he did not give side to the Toyota car. It is averred that infuriated by the same, the respondent No.4 hit the car driven by the respondent No.3 from the back and as the Toyota car was being driven at a very high speed and rashly and negligently in defiance of all the traffic rules, it could not be controlled by the driver of the vehicle and it went upside down. It is denied that the accident was caused because of any negligence on the part of the respondent No.3. It is averred that the accident was wholly caused due to the rash driving and negligence on the part of the respondent No.4.

7. Written statement was filed on behalf of the respondent No.4 Rajan Bajaj to the petition not disputing the contents of the same and it was not disputed that the respondent No.4 was the owner of Toyota Prado bearing No.DL­5­CB ­3456 and also its driver on the date of accident. It is submitted that the petitioners are the sons of the deceased and the respondent No.4. It is stated that late Smt. Renu Bajaj was traveling in car bearing No.DL­5­CB­3456 Suit No.38/14 Ritik Bajaj Vs. Savitri Raghu Raman Page No. 10 of 75 as an occupant and the car got involved in the accident at Delhi Noida Expressway in front of Mayur School, on way from Noida to New Delhi. It is stated that the place of accident is an Expressway and the vehicles on Expressway go at high speed, the respondent No.4 too was driving the car at a speed of around 100 kmph. The allegations of rash and negligent driving on the part of the respondent No.4 were denied. It is averred that the circumstances relating to the accident undisputedly establish that the accident was caused on account of absolute negligence on the part of the driver of the Maruti car and the stand of the respondent No.4 finds support from the fact that the police authorities after thorough investigation of the case had registered a case for causing the accident against the driver of the Maruti car.

It is averred that the respondent No.4 too has suffered unbearable loss, material as well as physical on account of the pre­mature death of Smt. Renu Bajaj.

8. Written statement on behalf of Oriental Insurance Company Ltd respondent No.5 was filed taking the preliminary objections that the petition is bad for misjoinder of necessary and proper parties. It is stated that the driver, owner and insurer of DL­5CB­3456 are not the necessary and proper parties. It is averred that the respondent No.4 was not holding a valid driving license and hence the terms and conditions of the policy of insurance had been willfully violated by the insured and hence no liability could be imposed on the respondent No.5. It is averred that the petition has not been filed by a duly Suit No.38/14 Ritik Bajaj Vs. Savitri Raghu Raman Page No. 11 of 75 authorized person as the father and natural guardian of the petitioners was alive and hence the petition could not be filed by the guardian against the father of the petitioners who had been made a party as respondent/ owner / insured, even otherwise the husband of the deceased was a necessary party as a petitioner. The averments made in the claim petition were denied. It was denied that vehicle No.DL­5CB­3456 was responsible for the alleged accident as alleged or at all. It is averred that the police has also filed the charge sheet against the respondent No.3 and not against the respondent No.4. It is averred that the respondent No.5 had issued a policy bearing No.271601/2006/3186 for the period 12.10.2005 to 11.10.2006 insuring vehicle No.DL­5CB­3456 on the representation of Shri Rajan Bajaj to be the registered owner. It is averred that the offending vehicle was UP­16A­7841. It is averred that the amount of compensation as claimed is highly exorbitant, excessive, arbitrary and without any basis. It is averred that there was no rash and negligent driving on behalf of the driver and the vehicle No.DL­5CB­3456 was not responsible for any alleged accident. It is averred that the respondent No.3 was arrested by the police and the trial was pending against him. It is averred that vehicle No.DL­5CB­3456 was not the offending vehicle as per the record of the police.

9. Vide order dated 24.2.2007 of my learned predecessor the respondent No.4 was proceeded ex­parte. The application filed on behalf of the respondent No.4 for setting aside the ex­parte order was allowed vide order dated 25.10.2007 of my learned predecessor. Defence of the respondent No.5 Suit No.38/14 Ritik Bajaj Vs. Savitri Raghu Raman Page No. 12 of 75 was struck off vide order dated 25.10.2007. Interim award was passed in favour of the petitioners vide order dated 25.10.2007 of my learned predecessor. From the pleadings of the parties, the following issues were framed vide order dated 25.10.2007 of my learned predecessor:

1. Whether deceased suffered fatal injuries in an accident which took place on 4.2.2006 at about 4.00 A.M involving two vehicles Maruti car bearing No.UP 16A 7841 driven by respondent No.3, owned by respondent No.1 and Toyota car No.DL 5CB 3456 driven and owned by respondent No.4 and insured with respondent No.5 due to composite negligence of respondent No.3 and 4? OPP.

2. Whether respondent No.2 is not liable to pay the compensation on account of preliminary objections taken by him in his Written Statement? OPP

3. Whether petitioners are entitled to compensation? If so, to what amount and against which of the respondents?

4.Relief.

PE was closed on 7.9.2009. An application was filed on behalf of the petitioners under order XXXII rule 12 read with Section 151 CPC to take on record the factum of minor petitioners having attained the age of majority and for directions to discharge the guardian and the next friend which was allowed vide order dated 19.1.2011 of my learned predecessor. An application under Section 151 CPC and Section 169 MV Act filed on behalf of the respondent Suit No.38/14 Ritik Bajaj Vs. Savitri Raghu Raman Page No. 13 of 75 No.5 for condoning the delay in filing the written statement was allowed vide order dated 21.12.2011 of my learned predecessor and the respondent No.5 was allowed to enter the proceedings. An application filed under Section 151 CPC filed on behalf of the respondent No.5 for cross­examining the petitioners' witness and respondents No.1 to 3 and 4 was allowed vide order dated 23.4.2013 of my learned predecessor as also an application under Section 170 MV Act filed on behalf of the respondent No.5. An application under Section 65 Evidence Act filed on behalf of the respondent No.1 was allowed vide order dated 24.3.2014. The evidence of respondent No.4 was closed vide order dated 22.5.2014. RE was closed on 16.7.2014. An application under order XVIII rule 17 CPC was filed on behalf of the respondent No.4 for being recalled for cross­examination but it was held that the respondent No.4 could not be allowed to be recalled for further cross­examination vide order dated 23.9.2014.

10. On behalf of the petitioners Ms. Ritu Arora appeared in the witness box as PW1 and led her evidence by way of affidavit which is Ex PW1/A reiterating the averments made in the claim petition. She deposed that she is the guardian and next friend as paternal aunt of the petitioners. She stated that the deceased was the authorized competent person in relation to manufacture of drugs by M/s Medisphere Ltd. She stated that the deceased was a very hard working and a self­made woman. She joined the company about 19 years prior and reached a level of distinction on account of her own efforts. She Suit No.38/14 Ritik Bajaj Vs. Savitri Raghu Raman Page No. 14 of 75 stated that the deceased besides pursuing her career as director of two companies of repute was also looking after the petitioners as mother and her husband as wife. She stated that the IO after completion of investigation had filed challan against the respondent No.3. Marksheet of the deceased of University of Bombay is Ex.PW1/1, Form 20B (license granted by the Licensing Authority) is Ex.PW1/2, pay slips for the month of January, 2006 of Medisphere Marketing Ltd. and Medidyne Pvt. Ltd. are Ex.PW1/3 and 4, ITRs of the deceased for the assessment years 2004­2005, 2005­2006, 2006­2007 are Ex.PW1/5 to 7, copies of election card and PAN card of Smt. Shobhi Raizada are Mark P1 and P2, certificates of Ritik Bajaj of Sheffield Hallam University are Ex.PW1/8 (colly), insurance cover note and terms and conditions of policy in respect of the Toyota Prado car are Ex.PW1/9 (colly) and copies of FIR and charge sheet are Ex.PW1/10 and 11. She was not cross­examined on behalf of the respondent No.4.

11. The respondent No.1 appeared in the witness box as RW1 and led her evidence by way of affidavit which is Ex RW1/A . She deposed that she was the owner of Maruti Car No.UP­16A­7841 which was sold to Mr. Sanjay the respondent No.2, 4­5 years prior and the physical possession was also given to him. She stated that on the alleged date of the accident i.e. 4.2.2006 she was neither the owner nor in possession of the Maruti Car No.UP­16A­7841 and was in no way concerned with the vehicle.

Suit No.38/14

Ritik Bajaj Vs. Savitri Raghu Raman Page No. 15 of 75

12. The respondent No.2 appeared in the witness box as R2W1 and led his evidence by way of affidavit which is Ex.R2W1/A stating that the averments made in the written statement were true. He stated that the petitioners were not entitled to the amount of compensation claimed against him since he did not have any parting events leading to the accident. He stated that the financial liability arising out of the alleged injuries sustained in the accident could either be that of the respondent No.4 or the insurer of the said vehicle but not his. He stated that he intended to bring out the glaring error on the part of the petitioners when they claimed in para 35 of the petition that they would find out the particulars about the owner and driver of the Maruti car and its insurance company yet they had impleaded him as one of the respondents which clearly showed that no financial liability could be attached against him. He stated that he was not the registered owner of the Martui Car against which the allegations about having been involved in the accident were made, thus rendering the entire claim petition as redundant against him. He stated that as such the petitioners were not entitled to the relief claimed. He was not cross­ examined on behalf of the respondents No.3 and 4.

13. The respondent No.3 appeared in the witness box as R3W1 and led his evidence by way of affidavit which is Ex.R3W1/A. He deposed that on 4.2.2006 at about 4 a.m he was driving his car in a normal speed and in compliance of all the traffic rules, when he reached at Delhi­Noida express way in front of Mayur School, suddenly a Toyota Car which was driven by its Suit No.38/14 Ritik Bajaj Vs. Savitri Raghu Raman Page No. 16 of 75 driver in a very high speed, rashly, negligently and without obeying the rules of the traffic and blowing horn came from the back side and hit his Maruti car but the driver of the Toyota who was in hurry and driving his vehicle in very high speed and rashly could not control his vehicle which turned upside down. He stated that the accident took place due to the sole negligence on the part of the driver of the Toyota Car bearing No.DL­5CB­3456. He stated that a false case was registered against him by the police. He was not cross­examined on behalf of the respondent No.2.

14. The respondent No.4 appeared in the witness box as R4W1 and led his evidence by way of affidavit which is Ex.R4. He deposed that on 4.2.2006 at about 4 a.m he was driving Toyota car No.DL5CB 3456 with Mrs. Renu Bajaj, his wife as occupant therein and was proceeding on Noida­Delhi expressway in front of Mayur School on way from Noida to New Delhi. He stated that ahead of the car driven by him was a Maruti car bearing registration No.UP­16A­7841. He stated that he intended to overtake the Maruti Car and gave light indication to that effect. The driver of the Maruti car swerved the vehicle to his right. He stated that while he was attempting to overtake from the left, the Maruti car driver swerved his car to his right, as a consequence thereof, his car struck against the rear left side of the Maruti car and thereafter against the side railing of the Expressway and turned upside down. He stated that on account of the impact, both he and the occupant of the car suffered multiple grievous injuries. He stated that both of them were rushed to Suit No.38/14 Ritik Bajaj Vs. Savitri Raghu Raman Page No. 17 of 75 Bhardwaj Hospital NH­1 Sector 29, Noida where his wife was declared brought dead, later, post mortem was performed on her body at AIIMS. He stated that he was married to Mrs. Renu Bajaj on 09.02.1983 and his wife was a young lady of 45 years of age with high Educational Qualification, sound health and physique and was working as Director in Private Ltd. companies of repute, drawing monthly salary of Rs.57,200/­ besides perks. He stated that his wife was earning a salary, having bright future prospects. Documents of qualification of his wife are Ex.R/1 (colly). He stated that his wife was very hard working and a self­made woman. She joined the company about 19 years prior and reached a level of distinction on account of her own efforts. He stated that the deceased was holding the position as Director in two companies viz. Medisphere Marketing Ltd. and Medidyne Pvt. Ltd. bearing the same address 201, 28­29 Link Road, Feroz Gandhi Marg, Lajpat Nagar, New Delhi­24 and was drawing a good remuneration. He deposed that Mrs. Renu Bajaj, besides pursuing her career as director of two companies of repute was also looking after the petitioners as mother and him as his wife and she was spending a major portion of her income for the welfare, upkeep and maintenance of the family. He deposed that he assumed the monetary value of the services rendered by her to them at a bare minimum of Rs.50,000/­ per month. He stated that his wife was having very good health and was very active and she was not addicted to any vice and would have lived for another 45­50 years if not killed in the accident in question as there was a history of longevity in the family of the deceased. He stated that his pleasures and Suit No.38/14 Ritik Bajaj Vs. Savitri Raghu Raman Page No. 18 of 75 comforts of life had been completely shattered. He had also lost the love, affection and care provided to them by the deceased wife and the death of Mrs. Renu Bajaj had thus, caused a great loss to him, because it was under

her guidance, support and help that the family was being run. He stated that his vehicle i.e. Toyota Prado No.DL 5CB 3456 was insured with Oriental Insurance Company Ltd. and documents in that respect are Ex.R/2. He stated that he was duly filing his returns every year and his Income Tax Return for the year 2007­2008 is Ex.R/3. He was not cross­examined on behalf of the respondents No.1 and 2. He was partly cross­examined and his further cross­ examination was deferred but thereafter he did not appear on several dates and subsequently some documents were placed on record by the respondent No.4.

15­16. On behalf of the respondent No.5 Oriental Insurance Company Ltd. Ms. Pallavee Thukral appeared in the witness box as R5W1 and led her evidence by way of affidavit which is Ex.R5W1/A. She deposed that Oriental Insurance Company Ltd. had issued the policy bearing No.271601/2006/3186 for the period 12.10.2005 to 11.10.2006 for vehicle bearing No.DL 5CB 3456 to the respondent No.4 and the computerized policy and its terms and conditions are Ex.R5W1/A collectively. She stated that the liability of the respondent insurance company was to indemnify the insured towards the third party. She stated that the deceased was the wife of the respondent No.4, deceased was not third party and the insurance company was not liable to indemnify the Suit No.38/14 Ritik Bajaj Vs. Savitri Raghu Raman Page No. 19 of 75 insured. She stated that the charge sheet was filed only against the driver of vehicle No.UP­16A­7841 respondent No.3/ Ram Kumar s/o Shri Babu Jatav. She relied upon the policy and the copy of the standard form of the private car policy and copy of Indian Motor Tariff is Ex.R5W1/A. She was not cross­ examined on behalf of the respondents No.1 and 2.

17. I have heard the Learned Counsel for the petitioners as well as the Learned Counsels for the respondents and perused the record. The petitioners were also examined on 20.10.2014 in terms of the judgment of the Hon'ble High Court on 11.1.2013 in MACA No.792/2006 titled Oriental Insurance Co.

Ltd. v. Ranjit Pandey and Ors.

18. At the outset an objection was taken on behalf of the respondents No.1, 2, 3 and 5 that PW1 was not appointed as legal guardian of the petitioners by any court and she could not have represented the petitioners when their natural guardian, father was alive and in fact the petitioners were represented through her as the father of the petitioners was responsible for the accident and was in collusion with the petitioners in order to get compensation. During cross­examination by the learned counsel for the respondent No.1 PW1 stated that at that time the age of Ritik Bajaj was 19 years and Rahil Bajaj was about 17 years. She stated that the petitioner No.1 Shri Ritik Bajaj was having sound health and he was not having any disablement and her reply was the same in respect of Rahil Bajaj also. She stated that Rahil had just appeared in the 12th Suit No.38/14 Ritik Bajaj Vs. Savitri Raghu Raman Page No. 20 of 75 Board Examination and Ritik was a student of College in USA. She stated that the petition had been filed by her as at the time of the accident both were minors. She admitted that she had not filed any petition till date regarding the factum of the getting of majority by the petitioner No.1 Ritik Bajaj. She admitted that the respondent No.4 Mr. Rajan is the father of both the petitioners. She admitted that the father of both the petitioners respondent No.4 Rajan Bajaj was having sound health and he could move anywhere even at the time of the accident as well as on that day. She admitted that he was doing his normal business and leading a normal life. PW1 admitted that she had no personal knowledge of the present case volunteered but the present petition had been filed by her being the legal guardian of the petitioners. She stated that she did not take any permission from the court to become a legal guardian of the petitioners as their father was still alive. She had not mentioned in her affidavit that one of the petitioners Ritik Bajaj had already got majority. She stated that she had taken her own decision to become a guardian of both the children with the consent of her brother Rajan Bajaj respondent No.4 and her old aged father. She stated that her old aged father still had sound health and mind. She stated that Mr. Rajan Bajaj handed over to her originals of all the documents pertaining to the case. She stated that she was married and had two school going kids and her husband was a businessman. She stated that her brother Rajan Bajaj along with the two children who are the petitioners in the case were residing separately from her at their own residence in GK Part 2 which was situated at a distance of two kilometers from her house. She Suit No.38/14 Ritik Bajaj Vs. Savitri Raghu Raman Page No. 21 of 75 stated that the respondent No.4 Rajan Bajaj obtained the certified copy of the criminal case record from the Noida Court on his own and not by her. She stated that except the present petition she was doing whatsoever would be done by their natural mother for them, even though both the petitioners were residing separately from her with their father in a separate house. She stated that she had done nothing regarding the admission of the petitioner No.1 for getting admission in college of USA. She stated that whatsoever was required the same had been done by his father Rajan Bajaj. She had not signed any application being the natural guardian for Ritik Bajaj for admission purpose nor any other application required for his visa. She stated that Ritik had gone to USA for study about one year prior. During the said period her brother Rajan Bajaj had not visited USA. She stated that the fee was paid by her brother Rajan Bajaj for the study of Ritik Bajaj who was studying in USA. She stated that she had not done any correspondence regarding the study of Ritik Bajaj. She denied the suggestion that she had filed the present petition in collusion with her brother Rajan Bajaj against the respondents No.1, 2, 3 and5. She denied the suggestion that she was not the natural guardian of both the petitioners. She admitted that she had not taken the permission of the court to become the natural guardian nor filed any document in that regard.

19. During cross­examination by the learned counsel for the respondent No. 2 PW1 stated that she is the aunt (Bua­sister of the father of children/ petitioners). She stated that she was doing garments business for the previous Suit No.38/14 Ritik Bajaj Vs. Savitri Raghu Raman Page No. 22 of 75 about 10 years and her husband was doing the business of export of handicraft items. She stated that the father of the children/ petitioners was also doing business of trading of medical equipments. She stated that the father of the children/ petitioners was earning well but she did not know the exact figure and he was an income tax payee. She stated that she had not filed the age proof document of both the children at the time of filing the petition or even at the time of recording of her statement. She stated that both the children were being looked after by her after the death of their mother as she used to go daily to their residence. She stated that before the death of the mother she used to visit their house twice or thrice a week. She stated that she had only one brother who is the father of the petitioners and she was having one more elder sister named Meenu Chawla w/o Shri Ajay Chawla r/o D­12 GK Enclave I, New Delhi. She stated that her father named Shri G.N. Bajaj was still alive and was aged about 75 years. She stated that her father was residing separately at Noida UP. During cross­examination by the learned counsel for the respondent No.3 PW1 denied the suggestion that the petition filed by her was bogus as she did not know the contents of it. She stated that the father of the petitioners was alive.

20. During cross­examination by the learned counsel for the respondent No. 5 PW1 stated that she had not applied for having any legal guardianship certificate issued from the court. She stated that the father who is one of the respondents was living in E­372 Greater Kailash II at the time of the accident Suit No.38/14 Ritik Bajaj Vs. Savitri Raghu Raman Page No. 23 of 75 along with his children and presently, he was also residing at R­155 Greater Kailash I and the father was also residing presently with his children on the same address. On the next date she had not brought the originals and stated that there was change in the house of her brother due to which the documents could not be traced. She admitted that all the originals of Ex.PW1/1 to Ex.PW1/7 were in the custody of her brother Rajan/ respondent No.4 and her brother Rajan was residing earlier at E372, Greater Kailash II and then he was residing at R­155 Greater Kailash I. She stated that the petitioners were residing at E­372 G.K II till end of 2012 and beginning of 2013 and then they were residing at R­155 G.K. I. She had not lodged any FIR for loss/ misplacement of the original documents Ex.PW1/1 to PW1/7 volunteered the documents had not been lost but had been misplaced. She stated that she had not applied for duplicate of the documents in the particular departments and she did not know whether the petitioners or the deceased had applied or not. She stated that Ritik Bajaj was helping in his father's business and Rahil Bajaj was studying in USA. She stated that his father was paying Rahil Bajaj's fees and other expenses from starting till then. She denied the suggestion that she was not the legal guardian or appointed guardian of the petitioners at the time of filing the present suit. She admitted that both the children have become major. She admitted that they had not filed any application as necessary party in the present suit, as major. She stated that she did not have any document to show that the petitioners were residing along with her at her address. Suit No.38/14

Ritik Bajaj Vs. Savitri Raghu Raman Page No. 24 of 75

21. PW1 thus stated that at that time (at the time of her examination) the age of Ritik Bajaj was 19 years and Rahil Bajaj was about 17 years. She stated that the petitioner No.1 Shri Ritik Bajaj was having sound health and he was not having any disablement and her reply was the same in respect of Rahil Bajaj also. She stated that the petition had been filed by her as at the time of the accident both were minors though she admitted that she had not filed any petition till date regarding the factum of the getting of majority by the petitioner No.1 Ritik Bajaj. She also admitted that the father of both the petitioners respondent No.4 Rajan Bajaj was having sound health and he could move anywhere even at the time of the accident as well as on that day. It is pertinent that PW1 admitted that she had no personal knowledge of the present case. She stated that she did not take any permission from the court to become a legal guardian of the petitioners as their father was still alive. She also stated that Mr. Rajan Bajaj handed over to her originals of all the documents pertaining to the case and the respondent No.4 had obtained the certified copy of the criminal case record. She stated that her brother Rajan Bajaj along with the two children who are the petitioners in the case were residing separately from her at their own residence in GK Part 2 which was situated at a distance of two kilometers from her house. She stated that she had done nothing regarding the admission of the petitioner No.1 for getting admission in college of USA nor signed any application. She stated that both the children were being looked after by her after the death of their mother as she used to go daily to their residence. She admitted that all the originals of Ex.PW1/1 to Suit No.38/14 Ritik Bajaj Vs. Savitri Raghu Raman Page No. 25 of 75 Ex.PW1/7 were in the custody of her brother Rajan/ respondent No.4. She stated that Ritik Bajaj was helping in his father's business and Rahil Bajaj was studying in USA. She stated that she did not have any document to show that the petitioners were residing along with her at her address. As such it has come out during the cross­examination of PW1 that the petitioners were not residing with her and in fact were residing with their father who was hale and hearty. Further at the time of the evidence, one of the petitioners had already attained majority. It has also come on record that all the procedures regarding admission of the petitioner No.1 were carried out by his father. Even as regards the present case PW1 had stated that she did not have any personal knowledge and all the documents in original were in possession of the father of the petitioners who is the respondent No.4 and he had obtained the record of the criminal court. Moreover PW1 had stated that she was looking after the children but the fact remains that the father of the children who was their natural guardian was alive and the petitioners were also residing with their father and for all practical purposes were being looked after by their father. Yet the petition has been filed through PW1 without seeking permission of the court for the same. Even R4W1 during cross­examination by the learned counsel for the respondent No.5 had stated that no guardian of the petitioners was appointed by order of any court. Thus it is clear that even no permission was taken from the court by PW1 to pursue the matter on behalf of the petitioners. Be that as it may. The fact remains that both the petitioners have attained majority and not repudiated the proceedings on their behalf by PW1 Suit No.38/14 Ritik Bajaj Vs. Savitri Raghu Raman Page No. 26 of 75 and subsequently an application was filed on their behalf to take on record the fact of their having become major. As such nothing much turns on this contention.

22. My findings on the specific issues are as under:

Issue No. 1

23. As the petition has been filed U/s 166 M.V Act it was incumbent upon the petitioners to prove that the deceased sustained injuries in an accident caused due to the rash and negligent driving by the driver of the offending vehicle and in the instant case two vehicles were involved. To determine the negligence of the driver of the offending vehicle it has been held in National Insurance Company Ltd. vs Pushpa Rana & Another 2009 Accident Claims Journal 287 as follows:

"The last contention of the appellant insurance company is that the respondents/claimants should have proved negligence on the part of the driver and in this regard the counsel has placed reliance on the judgment of the Hon'ble Apex Court in Oriental Insurance Company Ltd. V. Meena Variyal (supra). On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced: (i) certified copy of the criminal record of criminal case in FIR No.955 of 2004, pertaining to involvement of offending vehicle (ii) criminal record showing completion of investigation of police and issue of charge sheet under sections 279/304A, Indian Penal Code against the driver; Suit No.38/14

Ritik Bajaj Vs. Savitri Raghu Raman Page No. 27 of 75

(iii) certified copy of FIR, wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of deceased.

These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under the Motor Vehicle Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Hence, this contention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on part of the driver."

It is established law that in a claim petition under Motor Vehicle Act, the standard of proof to establish rash and negligent driving by the driver of the offending vehicle is not at par with the criminal case where such rashness and negligence is required to be proved beyond all shadow of reasonable doubt. In Kaushnamma Begum and others v. New India Assurance Company Limited, it was inter alia held by the Hon'ble Supreme Court that the issue of wrongful act or omission on the part of the driver of the motor vehicle involved in the accident has been left to a secondary importance and mere use or involvement of motor vehicle in causing bodily injury or death to a human being or damage to property would make the petition maintainable under Sections 166 and 140 of the Motor Vehicle Act.

24. The case of the petitioners is that on 4.2.2006 at about 4 a.m Mrs. Renu Bajaj (since deceased) as occupant of Toyota Car No.DL5C­B­3456 driven by Mr. Rajan Bajaj was proceeding on Delhi ­ Noida Expressway in front of Mayur School on way from Noida to New Delhi. It was averred that the car Suit No.38/14 Ritik Bajaj Vs. Savitri Raghu Raman Page No. 28 of 75 was being driven by its driver at a high speed rashly, negligently in disregard to the traffic regulations. It was averred that ahead of the car was a Maruti car bearing registration No.UP­16­A­7841 and the driver of the Toyota Car intended to overtake the Maruti Car ahead of it. It was averred that the Maruti car driver swerved the car slightly to the left and abruptly applied brakes, as a consequence thereof, the Toyota car struck against the rear portion of the Maruti Car, became imbalanced and turned up­side down and the occupant of the car as well as the driver suffered multiple grievous injuries. It was averred that the deceased due to the serious injuries was brought and admitted to Bhardwaj Hospital NH­1 Sector 29, Noida where she was declared brought dead at 4.15 a.m on 4.2.2006. It was averred that the accident was caused on account of composite negligence on the part of the drivers of both the vehicles. It was stated that in respect of the accident FIR No.29/2006 was registered at PS Sector 39, Noida, Gautam Budh Nagar. In paras 1 to 4 and 12­13 of her affidavit Ex.PW1/A PW1 had reiterated the mode and manner of the accident as stated in the claim petition.

25. The petitioners have placed on record the copy of the criminal record consisting of copy of charge sheet and copy of FIR. As per the FIR No. 29/2006 under sections 279/338/304A/427 IPC, PS Sector 39, Noida the case was registered on the basis of complaint of SI Anuj Kumar who was also stated to be an eye witness of the accident wherein he had stated about the manner of the accident. As per the charge sheet the respondent No.3 has Suit No.38/14 Ritik Bajaj Vs. Savitri Raghu Raman Page No. 29 of 75 been charge sheeted for the offence under sections 279/338/304A/427 IPC and Sections 177/184 MV Act.

26. Written statement was filed on behalf of the respondent No.2 averring that the respondent No.2 did not have any hand in the manner in which the accident had resulted as was clear from the pleadings in the petition itself and the accident had solely and squarely been caused by the rash and negligent driving of the respondent No.4, father of the petitioners who had been driving the car in which the deceased was claimed to have been travelling. It was averred that it was the specific admission in the petition that his Toyota Car bearing No.DL­5C­3456 was being driven by its driver i.e. the respondent No.4 on the Delhi Noida Expressway in front of Mayur School on way from Noida to New Delhi at a high speed, rashly and negligently in disregard to the traffic regulations and in view of such clear and specific pleadings, there was no question of any responsibility being attributed to the driver of the Maruti Car ­ a much smaller car ­ claimed to be driven by its driver specially when it was the car driven by the respondent No.4 in which the petitioners had been traveling along with their deceased mother which went out of control after hitting from behind the Maruti car moving ahead and driven by its driver which had led to the alleged accident. It was averred that the entire incident was based on the bare allegations of the petitioner's father who was driving his Toyota car in a most irresponsible, negligent and careless manner even though his wife and children were accompanying him. It was averred that the respondent No.2 had Suit No.38/14 Ritik Bajaj Vs. Savitri Raghu Raman Page No. 30 of 75 never been involved in the accident wherein the vehicle number had been recorded merely on the basis of information provided by some mischievous element. It was averred that for any failure of the driver of the Toyota car to move in a safe speed limit and not in a careless manner, the respondent No.2 could not be penalized. It was averred that the petition was silent about the purpose for which the deceased had been moving with the respondent No.4 at that unearthly hour and also about the physical condition of the respondent No.4, especially when it was the respondent No.4 who had lost control of his car after having driven the same in a high speed, rashly, negligently and in disregard to the traffic regulations which ultimately led to his car swerving uncontrollably and turning upside down and resulting in the alleged injuries to the petitioners' mother. It was averred that the petition did not specify the place from where the respondent No.4 and his wife were coming and there was a distinct possibility of the respondent No.4 being under the intoxication of drugs, liquor or the like owing to which he could not control his car and struck the Maruti car moving ahead of it from behind. It was denied that either the Maruti car or the persons occupying the same had any responsibility for causing the accident. It was averred that it was admitted in the petition that while driving at high speed the respondent No.4 had intended to overtake the Maruti car ahead of it which swerved slightly to the left and abruptly applied brakes and as a consequence thereof, the Toyota car struck against the rear portion of the car. It was averred that if the Maruti car had been hit even after swerving to its left, that would mean that the Toyota car was being driven in a Suit No.38/14 Ritik Bajaj Vs. Savitri Raghu Raman Page No. 31 of 75 manner so as to overtake the Maruti car from its left side and had thus resulted in the accident and overtaking from the left side was against the traffic rules and regulations and for any resulting incident, it would be the respondent No.4 who would be responsible and not the driver of the Maruti car. The respondent No.2 had also appeared in the witness box as R2W1 though he did not depose anything specifically about the manner of the accident.

27. Written statement was filed on behalf of the respondent No.3 averring that the alleged accident occurred due to fault on the part of the respondent No.4 who was driving the vehicle in which the deceased was aboard at the time of the accident. It was averred that the respondent No.3 and the respondent No.2 are friends and on the day of the alleged accident, the respondent No.3 had borrowed the said vehicle from the respondent No.2. It was averred that at the time of the alleged accident, the car driven by the respondent No.3 was ahead of the car being driven by the husband of the deceased. The respondent No.3 was driving the car at reasonable speed and in compliance of all the traffic rules. It was averred that the driver of the Toyota car was persistently blowing horns to overtake the respondent No.3. However as the way ahead of the car of the respondent No.3 was not clear, he did not give side to the Toyota car. It was averred that infuriated by the same, the respondent No.4 hit the car driven by the respondent No.3 from the back and as the Toyota car was being driven at a very high speed and rashly and negligently in defiance of all the traffic rules, it could not be controlled by the Suit No.38/14 Ritik Bajaj Vs. Savitri Raghu Raman Page No. 32 of 75 driver of the vehicle and it went upside down. It was denied that the accident was caused because of any negligence on the part of the respondent No.3. It was averred that the accident was wholly caused due to the rash driving and negligence on the part of the respondent No.4. The respondent No.3 had appeared in the witness box as R3W1 reiterating the averments made in the written statement.

28. Written statement was filed on behalf of the respondent No.4 Rajan Bajaj to the petition not disputing the contents of the same and it was not disputed that the respondent No.4 was the owner of Toyota Prado bearing No.DL­5­CB ­3456 and also its driver on the date of the accident. It was stated that late Smt. Renu Bajaj was traveling in car bearing No.DL­5­CB­3456 as an occupant and the car got involved in the accident at Delhi Noida Expressway in front of Mayur School, on way from Noida to New Delhi. It was stated that the place of accident is an Expressway and the vehicles on Expressway go at high speed, the respondent No.4 too was driving the car at a speed of around 100 kmph. The allegations of rash and negligent driving on the part of the respondent No.4 were denied. It was averred that the circumstances relating to the accident undisputedly established that the accident was caused on account of absolute negligence on the part of the driver of the Maruti car and the stand of the respondent No.4 found support from the fact that the police authorities after thorough investigation of the case had registered a case for causing the accident against the driver of the Maruti car. The respondent No.4 appeared in the witness box as R4W1 and reiterated the averments made in Suit No.38/14 Ritik Bajaj Vs. Savitri Raghu Raman Page No. 33 of 75 the written statement.

29. During cross­examination by the learned counsel for the respondent No. 1 PW1 stated that both the petitioners were not eye witness in the accident nor they were travelling in the car at the time of the accident. She stated that it was not in her knowledge whether her brother Rajan Bajaj received any notice or summon from the criminal court of Noida, UP or not. During cross­examination by the learned counsel for the respondent No.2 PW1 stated that she received the information regarding the accident of the mother of the children within half an hour of the accident. She stated that she did not visit the accident place. She had seen the dead body of the mother of the children at their residence first time after the accident. She stated that at the time of the accident the deceased and her brother were coming from Noida to their residence after attending some party there. She stated that the deceased and her brother were the members of one Health Club and the deceased was having life insurance policy. She stated that no FIR was registered against her brother for the present accident. During cross­examination by the learned counsel for the respondent No.3 PW1 stated that she was not eye witness to the accident. She denied the suggestion that the accident had taken place due to the sole negligence of her brother and not due to the negligence of the other vehicle's driver. During cross­examination by the learned counsel for the respondent No.5 PW1 stated that she was not the eye witness of the accident. She denied the suggestion that she had filed a wrong petition because Rajan Bajaj was Suit No.38/14 Ritik Bajaj Vs. Savitri Raghu Raman Page No. 34 of 75 one of the persons who was involved in the accident. Thus PW1 stated that both the petitioners were not eye witness to the accident nor they were travelling in the car at the time of the accident. PW1 stated that she received the information regarding the accident of the mother of the children within half an hour of the accident. She stated that at the time of the accident the deceased and her brother were coming from Noida to their residence after attending some party there. She also stated that no FIR was registered against her brother for the present accident. PW1 stated that she was not the eye witness to the accident. As such neither the petitioners nor PW1 was an eye witness to the accident. It would be argued on behalf of the respondents that the petitioners had not produced any eye witness in the witness box who could depose about the manner of the accident and as such they had failed to establish the negligence of the offending vehicle. However there is not much dispute about the facts of the case and the manner in which the accident took place. There is no dispute that there were two vehicles involved in the accident i.e. Toyota Prado bearing No.DL­5CB­3456 being driven by the respondent No. 4 and Maruti car bearing No.UP­16A­7841 being driven by the respondent No.

3. The spot of accident is also not disputed. It is further not in dispute that the Maruti car was ahead of the Toyota Prado and as deposed by R4W1 himself the respondent No.4 intended to overtake the Maruti car and hit the Maruti car from behind. Further the Toyota Prado had overturned. The respondent No.4 had even stated that he was driving at the speed of 100 km per hour it being an expressway.

Suit No.38/14

Ritik Bajaj Vs. Savitri Raghu Raman Page No. 35 of 75

30. During cross­examination by the learned counsel for the petitioners R3W1 stated that on 4.2.2006 he was driving Maruti car bearing No.UP 16A 7841 and he was driving his car at the speed of 40 kmph. He stated that he was driving his car on the left lane of the road. He denied the suggestion that he was driving the Maruti car at a very high speed. He stated that he was not changing lanes while driving his Maruti car. He stated that the Prado vehicle had hit on the middle back side of the car. He stated that there were four occupants in his car at the time of the accident including him. He stated that he was coming from Badarpur and was going to Bhangel (Noida). He stated that the Prado vehicle was trying to overtake him volunteered and was coming at a high speed. He denied the suggestion that while the Prado vehicle was trying to overtake him he abruptly changed the lane and came in front of the said vehicle. During cross­examination by the learned counsel for the respondent No.4 R3W1 stated that the Maruti vehicle which he was driving was mechanically fit. He stated that he was coming after attending marriage in Badarpur. He denied the suggestion that he had consumed alcohol in the marriage. He stated that all four occupants of the car had gone together to attend the marriage and thereafter they were all coming together. During cross­examination by the learned counsel for the respondent No.5 R3W1 admitted that criminal case was registered against him regarding the accident at PS Sector­39, Noida, District Gautam Budh Nagar. He stated that he had not made any complaint to any higher police official or any higher administrative authority that the case at PS Sector 39, Noida, District Gautam Suit No.38/14 Ritik Bajaj Vs. Savitri Raghu Raman Page No. 36 of 75 Budh Nagar had been falsely registered against him. He denied the suggestion that the contents of his affidavit were false.

31. R3W1 thus stated that he was driving his car at the speed of 40 kmph. He stated that he was driving his car on the left lane of the road. A suggestion was put to R3W1 that he was driving the Maruti car at a very high speed which he denied and in fact if the Maruti car was being driven at a very high speed the Toyota Prado would have to be even at a greater speed to hit it from behind. He stated that he was not changing lanes while driving his Maruti car. He stated that the Prado vehicle had hit on the middle back side of the car. He stated that there were four occupants in his car at the time of the accident including him though the respondent No.4 had stated about 6­7 persons coming out of the Maruti car but there is nothing to show the same. He stated that the Prado vehicle was trying to overtake him and he volunteered that it was coming at a high speed and in fact the respondent No.4 himself had stated that he intended to overtake the Maruti car. R3W1 stated that the Maruti vehicle which he was driving was mechanically fit. A suggestion was put to him that he had consumed alcohol in the marriage which he denied and there is even nothing to show the same. R3W1 admitted that criminal case was registered against him regarding the accident at PS Sector­39, Noida, District Gautam Budh Nagar and he had not made any complaint to any higher police official or any higher administrative authority that the case at PS Sector 39, Noida, District Gautam Budh Nagar had been falsely registered against him. Suit No.38/14

Ritik Bajaj Vs. Savitri Raghu Raman Page No. 37 of 75 As such R3W1 had reiterated what was deposed by him though he had not made any complaint against his false implication in the case.

32. During cross­examination by the learned counsel for the petitioners R4W1 stated that he had been driving the vehicle since the age of 22 years till date. He stated that he knew about the traffic rules and regulations. He admitted that the Maruti car was ahead from his vehicle and prior to the accident he intended to overtake the Maruti car which was going in front of his vehicle. He stated that the accident took place early in the morning at about 3.30 a.m. At that time he was driving Toyota Prado. He stated that when he was trying to overtake the vehicle he gave the signal to the Maruti car driver and after the accident he noticed that 6 to 7 persons got down from the Maruti car and came towards him volunteered the Maruti car was swirling so he tried to overtake from its left side. He stated that he did not give any signal prior to overtaking the Maruti Car. He stated that his right side bumper hit the rear bumper of the Maruti car towards its left side and due to the impact his car bumper fell on the road and his vehicle turned towards the railing and the left side tyre touched with the patari and then his car turned side as he lost balance of his car. He stated that the Maruti car driver did not give him any signal to take over volunteered as no back light of the Maruti car either blinked or was in working condition.

Suit No.38/14

Ritik Bajaj Vs. Savitri Raghu Raman Page No. 38 of 75

33. During cross­examination by the learned counsel for the respondent No. 3 R4W1 stated that at the time of the accident his wife was with him in the Prado car the number of which he did not remember then. He stated that the Maruti vehicle which was involved in the accident was in front of his vehicle and it was in front of his vehicle for about a kilometer of the distance travelled by him prior to the accident. He stated that he was maintaining a distance of 2­5 meters from the Maruti car. He stated that his vehicle was badly mutilated in the accident and after the accident his vehicle over turned towards the right side volunteered his vehicle had touched the railing and the tyre burst and his wife was thrown out of the vehicle and thereafter the vehicle overturned on the road itself and after the accident his vehicle was lying about five metres from the Maruti car. He denied the suggestion that Shri Ram Kumar/ respondent No.3 took his wife to the hospital. He stated that at the time of the accident the speed of his vehicle was about 70­80 kmph. He stated that he was trying to overtake the Maruti vehicle and before overtaking the Maruti vehicle he had given dipper and he had not blown horn. He denied the suggestion that the accident took place due to his negligent driving of his vehicle as he was giving horns constantly to the Maruti vehicle and in a hurry to overtake he struck against the Maruti Car and caused the accident.

34. During cross­examination by the learned counsel for the respondent No. 5 R4W1 stated that no criminal case had been registered against him regarding the accident. He stated that he had not been summoned by any Suit No.38/14 Ritik Bajaj Vs. Savitri Raghu Raman Page No. 39 of 75 court as an accused regarding the accident. Thus R4W1 admitted that the Maruti car was ahead from his vehicle and prior to the accident he intended to overtake the Maruti car which was going in front of his vehicle. He stated that when he was trying to overtake the vehicle he gave the signal to the Maruti car driver and volunteered that the Maruti car was swirling so he tried to overtake from its left side. He however stated that he did not give any signal prior to overtaking the Maruti Car. He stated that his right side bumper hit the rear bumper of the Maruti car towards its left side and as such R4W1 had admitted about his car hitting the Maruti car from behind. It is pertinent that R4W1 himself stated that the Maruti car driver did not give him any signal to take over volunteered as no back light of the Maruti car either blinked or was in working condition. It is also significant that R4W1 stated that the Maruti vehicle was in front of his vehicle for about a kilometer of the distance travelled by him prior to the accident and as such it is not the case that he had not seen the car. He stated that he was maintaining a distance of 2­5 meters from the Maruti car but if he were maintaining a safe distance he would not have hit the Maruti car. He stated that at the time of the accident the speed of his vehicle was about 70­80 kmph. He had denied the suggestion about negligence on his part. As such R4W1 had reiterated about trying to overtake the Maruti car and hitting it. He had stated about giving dipper to the Maruti car but no specific suggestion was put to the respondent No.3 in that regard.

Suit No.38/14

Ritik Bajaj Vs. Savitri Raghu Raman Page No. 40 of 75

35. It is pertinent that as per the case put forth by the petitioners the accident had taken place due to the negligence of the respondents No.3 and 4 and according to the respondent No.3 the accident had taken place due to the negligence of the respondent No.4 but the FIR was registered only against the respondent No.3 and R4W1 stated that no criminal case had been registered against him regarding the accident and he had not been summoned by any court as an accused regarding the accident. A perusal of the FIR shows that it was stated therein that the driver of the Prado tried to save the Maruti car but the driver of the Maruti car had negligently and all of a sudden braked the car due to which the Prado car coming from behind became 'disbalanced' and hit the Maruti and turned over. Even the respondent No.4 had contended that the Maruti car had swerved and the car of the respondent No.4 struck against the rear left side of the Maruti car. As such it is evident that both the driver of the Maruti car and the driver of the Toyota Prado had contributed to the happening of the accident in as much as the driver of the Maruti car had braked his car suddenly and swerved it due to which the Prado coming from behind it hit it while the Prado was being driven at high speed and the driver of the Prado was trying to overtake it from the wrong side and clearly did not maintain a safe distance from it and could not control his car in time and hit against the Maruti car and subsequently it overturned. No doubt the FIR was registered against only the respondent No.3 but it is evident that the accident had been caused due to the composite negligence of both the respondents No.3 and 4 who were driving the Maruti car and the Toyota Prado respectively. The law is Suit No.38/14 Ritik Bajaj Vs. Savitri Raghu Raman Page No. 41 of 75 well settled that the claimants can chose the insurer and insured in respect of the vehicles as tort feasors to recover the compensation amount. In Om Wati & Ors. v. Mohd. Din & Ors. 2001 91 DLT 184 (decided by DB of Hon'ble High Court of Delhi) it was observed:

"Coming to the question of 'apportionment' it seems to us that First Appellate Court was in error in holding that claimants would have to forego 30% share of their awarded compensation in favour of the joint tort­feasors of the truck present before the Court as they had failed to implead tort­ feasors of the car as party­respondents in their claim suits. This is because the accident could not be wholly treated to be the result of contributory negligence. Even, if it was assumed that the drivers of the two vehicles contributed to the accident in some measure, the other two deceased who were travelling in the car could not be held responsible for any such negligence. Therefore, it was a case of composite negligence in their case. The principle of composite negligence is that where more than one person are responsible for commission of the wrong, the person wronged has a choice of proceedings against all or any one or more. Any one of the wrong doer is liable for the whole damage if it is otherwise made out. In other words the liability of two sets of tort­feasors becomes both joint and several."

However in the present case the driver and owner of the vehicle bearing No.UP­16A­7841 and the driver cum owner and insurer of the vehicle bearing No.DL­5CB­3456 have all been joined as respondents.

Suit No.38/14

Ritik Bajaj Vs. Savitri Raghu Raman Page No. 42 of 75

36. Further the Hon'ble Supreme Court in T.O. Anthony v. Karvarnan & Ors., (2008) 3 SCC 748, held:­ "6. 'Composite negligence' refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrongdoers, it is said that the person was injured on account of the composite negligence of those wrongdoers. In such a case, each wrongdoer is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrongdoer separately, nor is it necessary for the court to determine the extent of liability of each wrongdoer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence of the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence."

Thus it was held by the Hon'ble Supreme Court that each wrongdoer is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. However in the present case the petitioners have proceeded against all the parties as observed above.

37. Coming to the facts of the present case the criminal record has been placed on record which shows that the respondent No.3 has been charge Suit No.38/14 Ritik Bajaj Vs. Savitri Raghu Raman Page No. 43 of 75 sheeted for the offence under Sections 279/338/304A/427 IPC though as discussed above the respondent No.4 who was driving the Toyota Prado bearing No.UP­16A­7841 was also negligent and contributed to the happening of the accident. There is nothing to disprove the involvement of vehicles No.DL­5CB­3456 and UP­16A­7841. In view of the testimony of the witnesses and documents on record, the negligence of the respondents No.3 and 4 has been prima facie proved. Looking to the facts of the case the negligence of the respondent No.4 is apportioned as 60% and of the respondent No.3 as 40%.

38. It was stated that due to the accident the occupant of the Toyota Prado car as well as the driver suffered multiple grievous injuries. It was averred that the deceased due to the serious injuries was brought and admitted to Bhardwaj Hospital NH­1 Sector 29, Noida where she was declared brought dead at 4.15 a.m on 4.2.2006. The copy of the post mortem report of the deceased is on record as per which the cause of death was coma due to head injury caused by blunt force which could be possible in the circumstances which were mentioned. Thus it stands established that the deceased had sustained injuries in the alleged accident due to which she died. This issue is accordingly decided in favour of the petitioners and against the respondents. Suit No.38/14

Ritik Bajaj Vs.  Savitri Raghu Raman                                           Page No. 44 of 75
 Issue No.2

39. Several objections were taken by the respondent No.2 in the written statement principally being that he was not responsible for the accident and it has already been held in issue No.1 that the accident had taken place due to the composite negligence of the respondents No.3 and 4 and it is not the case put forth by any party that the respondent No.2 was driving any vehicle. As such he cannot be held responsible for causing the accident. This issue is decided accordingly.

Issue No. 3

40. Since issue No.1 has been decided in favour of the petitioners they would be entitled to compensation as per the provisions of the Act. The petitioners are the sons of the deceased. The respondent No.4 was also cross­examined in this regard though it may be mentioned that his cross­ examination was not complete and during cross­examination by the learned counsel for the respondent No.5 R4W1 stated that he has two children i.e. both the petitioners. The date of birth of petitioner No.1 is 28.6.1989 and he had finished his education i.e. Degree in Biotechnology and was in the process of setting up but he was unemployed at present. He stated that the date of birth of the petitioner No.2 is 12.4.1991 and he was doing course in Business Studies in America. He stated that his son i.e. petitioner No.1 had Suit No.38/14 Ritik Bajaj Vs. Savitri Raghu Raman Page No. 45 of 75 gone to USA for studies in September 2008. He stated that he (R4W1) had worked in America for sometime and he had insured himself and his children in America with Prudentials Insurance Company and the expenses of studies of his son were partly taken care of by him/ family and partly by Prudentials Insurance Company. He stated that M/s Birla Sunlife Insurance Company had paid a sum of Rs.Sixty Five Lacs towards insurance of his wife and the education of his children was taken care of by the said amount. He could not tell the exact amount which was contributed by him and his family towards the studies of the petitioner No.1. He had the copies of the insurance policies of M/s Birla Sunlife Insurance Company & Prudentials Insurance Company. He stated that as far as he remembered he had taken insurance policy from Prudentials Insurance Company in the year 1995­1996 and insurance of his wife of M/s Birla Sunlife Insurance Company was taken about eight years prior to her death. He stated that the policy which was taken by his wife of M/s Birla Sunlife Insurance company was a Keyman's Policy. He stated that at the time of the accident the petitioners were residing with him. He stated that the petitioners were not residing with him for about one and half year to two years. He stated that at the time of the accident the petitioners were fully financially dependent on him and at present they were partly financially dependent on him. Thus R4W1 was cross­examined on what the petitioners were doing and how their studies were funded. He also stated that M/s Birla Sunlife Insurance Company had paid a sum of Rs.Sixty Five Lacs towards insurance of his wife and the education of his children was taken care of by the said amount though Suit No.38/14 Ritik Bajaj Vs. Savitri Raghu Raman Page No. 46 of 75 he could not tell the exact amount which was contributed by him and his family towards the studies of the petitioner No.1. He stated that at the time of the accident the petitioners were residing with him. He also stated that at the time of the accident the petitioners were fully financially dependent on him and at present they were partly financially dependent on him. It was sought to be contended on behalf of the respondent No.5 that as the petitioners were financially dependent on their father they could not be regarded as dependent on the deceased who was their mother. However it is the specific contention of the petitioners that the deceased was also working and was drawing salary and as such there is no merit in the contention that the petitioners who were minors would not be regarded as dependent on their mother. Though it has come out in the testimony of PW1 that the father of the petitioners was looking after their needs, however being minors at the time of the accident they would be regarded as dependent on the deceased.

41. The petitioners have claimed loss of dependency on the basis that the deceased was a young lady of 45 years of age with High Educational Qualifications, sound health and physique and was working as Director in Private Limited Companies of repute, drawing monthly salary of Rs.57,200/­ besides perks and she was earning a salary and having bright future prospects. It was averred that the deceased besides pursuing her career as a Director of two companies of repute was also looking after the petitioners as mother and her husband as wife. It was averred that she was spending a Suit No.38/14 Ritik Bajaj Vs. Savitri Raghu Raman Page No. 47 of 75 major portion of her income for the welfare, upkeep and maintenance of the family and the petitioners assumed the monetary value of the services rendered by her to them at a bare minimum of Rs.50,000/­ per month. It was averred that the deceased was very hard­working and a self­made woman and she joined the company at about 19 years age and reached a level of distinction on account of her own efforts. It was averred that the deceased was holding the position as Director in two companies viz. Medisphere Marketing Ltd. and Medidyne Pvt. Ltd. bearing the same address 201, 28­29 Link Road, Feroze Gandhi Marg, Lajpat Nagar, New Delhi­24 and was drawing a good remuneration. It was averred that the deceased was having very good health and was very active and she was not addicted to any vice and would have lived for another 45­50 years if not killed in the accident. It was averred that there was a history of longevity in the family of the deceased and the father of the deceased namely Shiv Kumar Raizada aged about 75 years was still alive and healthy. The mother of the deceased namely, Shobhi Raizada aged about 65 years was still alive and healthy. It was averred that the claimants' pleasure and comforts of life had been completely shattered and the deceased had left behind the two petitioners aged 17 years and aged 15 years who were fully dependent upon the deceased for their upbringing, for financial and moral support. It was averred that the petitioners No.1 and 2 had lost the love, affection and care provided to them by the deceased mother and the death of Mrs. Renu Bajaj had caused a great loss to the petitioners because it was under her guidance, support and help that the family was being run. It was Suit No.38/14 Ritik Bajaj Vs. Savitri Raghu Raman Page No. 48 of 75 averred that the death of the deceased had caused great mental shock to the whole of the family who had been deprived of the assistance that would have been made available to them by the deceased for at least 50 years if not killed in the accident. It was averred that the deceased was spending her entire income on her family and the deceased had earnest desire to provide the best possible education, training and facilities to her children. It was averred that the whole of the family was secure and happy under the guidance and shelter of the deceased and had become emotionally and morally insecure after her death. It was averred that the petitioners are also entitled for compensation for shock, bodily pain and mental tension suffered by the deceased on account of the accident. PW1 in paras 5 to 11 of her affidavit Ex.PW1/A had deposed to that effect. She stated that the deceased was the authorized competent person in relation to manufacture of drugs by M/s Medisphere Ltd. She stated that the deceased was a very hard working and a self­made woman. She joined the company about 19 years prior and reached a level of distinction on account of her own efforts. She stated that the deceased besides pursuing her career as director of two companies of repute was also looking after the petitioners as mother and her husband as wife. Mark sheet of the deceased of University of Bombay is Ex.PW1/1, Form 20B (license granted by the Licensing Authority) is Ex.PW1/2, pay slips for the month of January, 2006 of Medisphere Marketing Ltd. and Medidyne Pvt. Ltd. are Ex.PW1/3 and 4, ITRs of the deceased for the assessment years 2004­2005, 2005­2006, 2006­2007 are Ex.PW1/5 to 7 and copies of election card and PAN card of Smt. Shobhi Suit No.38/14 Ritik Bajaj Vs. Savitri Raghu Raman Page No. 49 of 75 Raizada are Mark P1 and P2. She was not cross­examined on behalf of the respondent No.4.

42. The respondent No.4 who is the father of the petitioners had appeared in the witness box as R4W1 and also deposed to that effect. He stated that he was married to Mrs. Renu Bajaj on 09.02.1983 and his wife was a young lady of 45 years of age with high Educational Qualification, sound health and physique and was working as Director in Private Ltd. companies of repute, drawing monthly salary of Rs.57,200/­ besides perks. He stated that his wife was earning a salary, having bright future prospects. Documents of qualification of his wife are Ex.R/1 (colly). He stated that his wife was very hard working and a self­made woman. He stated that his pleasures and comforts of life had been completely shattered. He had also lost the love, affection and care provided to them by the deceased wife and the death of Mrs. Renu Bajaj had thus, caused a great loss to him, because it was under her guidance, support and help that the family was being run. He stated that he was duly filing his returns every year and his Income Tax Return for the year 2007­2008 is Ex.R/3. He was not cross­examined on behalf of the respondents No.1 and

2.

43. PW1 was not specifically cross­examined regarding the income of the deceased. During cross­examination by the learned counsel for the respondent No.5 PW1 stated that Mr. Rajan Bajaj who is one of the Suit No.38/14 Ritik Bajaj Vs. Savitri Raghu Raman Page No. 50 of 75 respondents was one of the Directors of Medisphere Marketing Ltd. She did not know who were the other Directors of Medidyne Medicals Pvt. Ltd. She did not know how much shares the deceased was holding in Medishpere Marketing Ltd. She did not know whether Medisphere Marketing Ltd. was still running or not. She did not know the status of the business of the deceased whether it was still continuing or had been closed. Thus PW1 stated that the respondent No.4 was one of the Directors of Medisphere Marketing Ltd. in which the deceased was also stated to be a Director. She did not know how much shares the deceased was holding in Medishpere Marketing Ltd. and whether Medisphere Marketing Ltd. was still running or not or whether the business of the deceased was still continuing or had been closed.

44. During cross­examination by the learned counsel for the respondent No. 5 R4W1 stated that at the time of the accident he was filing annual returns of about Rs.16 lacs to Rs.18 lacs per annum. He stated that at the time of the accident he was working as Director in M/s Medisphere Marketing Ltd. from where he was getting remuneration and apart from that he was Honorary Director of other company but he could not tell the name of the said companies as he was on the Board of many companies. He stated that he, his wife and his father in law were the principal directors of M/s Medisphere Marketing Ltd. at the time of the accident. He stated that both the petitioners were also the directors apart from him of M/s Medisphere Marketing Ltd. He could not tell if the shares of his wife in M/s Medisphere Marketing Ltd. were Suit No.38/14 Ritik Bajaj Vs. Savitri Raghu Raman Page No. 51 of 75 taken over by his both sons or not. He stated both the petitioners had not invested any amount in M/s Medisphere Marketing Ltd. He stated that there was a provision for payment of remuneration to all the directors in M/s Medisphere Marketing Ltd. however the company was in a financial mess and no amount was being paid to the directors. He had not brought any balance sheet of M/s Medisphere Marketing Ltd. He denied the suggestion that M/s Medisphere Marketing Ltd. was not in a financial mess and was deriving profits and the petitioners were regularly getting income from the said company. Thus R4W1 stated that at the time of the accident he was working as Director in M/s Medisphere Marketing Ltd. and even the deceased was stated to be a Director in the said company. He stated that both the petitioners were also the directors apart from him of M/s Medisphere Marketing Ltd. He was asked if the shares of his wife in M/s Medisphere Marketing Ltd. were taken over by his both sons or not but he could not tell the same. He stated that the company was in a financial mess and no amount was being paid to the directors.

45. R4W1 was also cross­examined regarding the other company and during cross­examination by the learned counsel for the respondent No.5 R4W1 stated that his wife and Mr. Vivek Dean were the Principal Directors of M/s Medidyne Medicals Pvt. Ltd. He stated that after the death of his wife, Mr. Vivek Dean resigned from M/s Medidyne Medicals Pvt. Ltd. and R4W1 took over the company and the present status of the said company was zero. He stated that his chartered accountant might have informed the ROC regarding Suit No.38/14 Ritik Bajaj Vs. Savitri Raghu Raman Page No. 52 of 75 his taking over and the present status of M/s Medidyne Medicals Pvt. Ltd. He denied the suggestion that M/s Medidyne Medicals Pvt. Ltd was still functioning and was having income and he was getting income from the said company. He stated that he had not invested any amount in M/s Medidyne Medicals Pvt. Ltd. He denied the suggestion that his wife was not deriving monthly salary from all the companies as mentioned in para No.4 of his affidavit and the income of his wife as mentioned from various companies was merely shown in order to save taxes. Thus R4W1 stated that after the death of his wife R4W1 took over the company and the present status of the said company was zero. A suggestion was put to him that his wife was not deriving monthly salary from all the companies as mentioned in para No.4 of his affidavit and the income of his wife as mentioned from various companies was merely shown in order to save taxes which he denied. He had also denied the suggestions to the effect that M/s Medisphere Marketing Ltd. was not in a financial mess or that M/s Medidyne Medicals Pvt. Ltd was still functioning and was having income. In fact it was sought to be contended by the learned counsel for the respondent No.5 that the shares of the companies which belonged to the deceased had gone to the petitioners and the business still existed and as such the income of the deceased should be taken on a lower scale as the petitioners were still getting income from the business. However apart from the contention of the respondent No.4 that the companies were in a financial mess, it is pertinent that the income derived from the shares etc. cannot be deducted from the compensation payable under the MV Act. In Suit No.38/14 Ritik Bajaj Vs. Savitri Raghu Raman Page No. 53 of 75 Vimal Kanwar & Ors. v. Kishore Dan & Ors. Civil Appeal No.5513 of 2012 decided on 3.5.2013: II (2013) ACC 752 (SC) the Hon'ble Supreme Court had held that PF, pension, insurance and similarly any cash, bank balance, shares, fixed deposits etc. are all a pecuniary advantage receivable by the heirs on account of one's death but all these have no correlation with the amount receivable under a statute occasioned only on account of accidental death and such amount will not come within the periphery of Motor Vehicles Act towards the pecuniary advantage liable for deduction. As such the shares etc would be construed as a pecuniary advantage receivable by the petitioners on account of the death of their mother but they have no correlation with the amount receivable under MV Act and the said amount is not liable for deduction. The learned counsel for the respondent No.5 had also relied on the judgment of the Hon'ble Supreme Court in Rani Gupta and Others v. M/s United India Insurance Co. Ltd. and Others 2009 (2) TAC 745 (SC). However the question of the multiplier to be applied has been settled by the judgment of the Hon'ble Supreme Court in Sarla Verma v. Delhi Transport Corporation 2009 ACJ 1298 (SC) and in several subsequent judgments the importance of bringing about standardization has been emphasized and it has been held that the multipliers as laid down in Sarla Verma should apply. Thus merely on the contention that the business remained in the family the multiplier to be applied cannot be reduced.

Suit No.38/14

Ritik Bajaj Vs. Savitri Raghu Raman Page No. 54 of 75

46. The petitioners have placed on record pay slips of the deceased for the month of January, 2006 of Medisphere Marketing Ltd. and Medidyne Pvt. Ltd. which are Ex.PW1/3 and 4 and ITRs of the deceased for the assessment years 2004­2005, 2005­2006, 2006­2007 which are Ex.PW1/5 to 7. The respondent No.4 had also placed on record the ITRs of the deceased and during cross­examination by the learned counsel for the respondent No.5 R4W1 stated that he had not brought the original income tax returns of his wife. He stated that the ITR Ex.R4W1/R1 was filed after the death of his wife and the same was signed by him. It was argued by the learned counsel for the respondent No.5 that the ITR filed after the death of a person could not be considered and the learned counsel for the respondent No.5 has relied upon the judgment of the Hon'ble Supreme Court in V. Subbulakshmi and others v. S. Lakshmi and another 2008 ACJ 936 wherein it was held that the income tax returns filed after the death were rightly not relied upon. The issue came up before the Hon'ble High Court of Delhi and in a recent judgment in Geeta & Ors. v. Dinesh Chander & Ors. MAC. APP.23/2013 decided on 13th January, 2015 it was held:

10. In Oriental Insurance Company Limited v. Kanika Arora & Ors., MAC APP.141/2012, decided on 27.08.2012, this Court referred to the judgment of the Supreme Court in V. Subbulakshmi & Ors. v. S. Lakshmi & Anr.,(supra), and held that it was not laid down as a proposition of law that the ITRs filed after the death of the deceased cannot be taken into consideration at all.

Suit No.38/14

Ritik Bajaj Vs. Savitri Raghu Raman Page No. 55 of 75

11. In the instant case, the deceased filed ITRs for a period of about five years before his death and his income was gradually increasing. In the Assessment Year 2007­2008, he returned the income of Rs.1,51,250/­. In the Assessment Year 2009­2010, he returned the income of Rs.1,80,370/­ and for the Assessment Year 2010­2011, he returned the income of Rs.2,20,950/­. The last ITR for the relevant period was filed on 29.07.2010 on behalf of the deceased by his legal representatives.

12. I do not find any reason to suspect or doubt the ITRs as the income from the Assessment Year 2005­2006 was gradually increasing."

Thus it was held that it was not laid down as a proposition of law that the ITRs filed after the death of the deceased cannot be taken into consideration at all.

47. The salary certificate issued by Medisphere Marketing Ltd. for the month of January, 2006 which is Ex.PW1/3 shows the total salary of the deceased as Rs.25,200/­ but it also mentions that a sum of Rs.6,000/­ was deducted as TDS. Ex.PW1/4 is the pay slip for the month of January, 2006 issued by Medidyne Medicals Pvt. Ltd. which shows the total salary as Rs. 27,500/­. However it also shows conveyance allowance of Rs.800/­ and others as Rs.2,060/­ which cannot be included for calculating the income for computation of loss of income. It also shows that a sum of Rs.6,000/­ was deducted as TDS. The ITR of the deceased for the assessment year 2004­2005 is on record which shows the income from salary as Rs.4,73,800/­. Income from property was shown as Rs.1,01,580/­ and the total tax payable was Rs.1,45,160/­. The ITR for the assessment year 2005­2006 shows the Suit No.38/14 Ritik Bajaj Vs. Savitri Raghu Raman Page No. 56 of 75 income from salary as Rs.5,10,940/­ and income from property as Rs.98,708/­ and total tax payable was Rs.1,46,331/­. The ITR for the assessment year 2006­2007 was filed subsequent to the death of the deceased and the same shows the income from salary as Rs.4,52,932/­ and there was no income from property and the tax payable was Rs.54,394/­. There is no reason to disbelieve the said return and in fact there is not much deviation in the amount from the other documents on record. Thus if the last ITR in respect of the deceased is considered, after deducting the income tax, the income of the deceased would come to Rs.3,98,538/­. Considering the facts and circumstances, the income of the deceased for the computation of loss of dependency is taken as Rs.4,00,000/­ p.a.

48. It is the case of the petitioners that the deceased was aged about 45 years and it was so stated in the claim petition. The ITRs show the date of birth of the deceased as 28.9.1960. Thus the deceased would have been more than 45 years old on the date of the accident i.e. 4.2.2006. As per the judgment of the Hon'ble Supreme Court in Sarla Verma and others v. Delhi Transport Corporation and others 2009 ACJ 1298 (SC) case the multiplier of 14 applies for calculating the loss of income where the age of the deceased is 41 to 45 years and the multiplier of 13 applies where the age of the deceased is 46 to 50 years. However as the deceased was still not 46 years old the multiplier of 14 would be applicable in the instant case. Suit No.38/14

Ritik Bajaj Vs. Savitri Raghu Raman Page No. 57 of 75

49. As observed above the dependents on the deceased were her sons. As per the judgment of the Hon'ble Supreme Court in Sarla Verma's case as the number of dependents was 2 there would be 1/3rd deduction towards personal and living expenses of the deceased. As regards the future prospects the Hon'ble Supreme Court in Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65 while approving the ratio with regard to future prospects in Sarla Verma (Smt.) & Ors. (supra) held as under:­ "38. With regard to the addition to income for future prospects, in Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002], this Court has noted the earlier decisions in Susamma Thomas [Kerala SRTC v. Susamma Thomas, (1994) 2 SCC 176 : 1994 SCC (Cri) 335] , Sarla Dixit[(1996) 3 SCC 179] and Abati Bezbaruah [Abati Bezbaruah v. Geological Survey of India, (2003) 3 SCC 148 : 2003 SCC (Cri) 746] and in para 24 of the Report held as under: (Sarla Verma case [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002], SCC p. 134) "24. ... In view of the imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. (Where the annual income is in the taxable range, the words "actual salary‟ should be read as actual salary less tax‟). The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of the deceased is more than 50 years. Though Suit No.38/14 Ritik Bajaj Vs. Savitri Raghu Raman Page No. 58 of 75 the evidence may indicate a different percentage of increase, it is necessary to standardise the addition to avoid different yardsticks being applied or different methods of calculation being adopted. Where the deceased was self­ employed or was on a fixed salary (without provision for annual increments, etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances."

16.The standardization of addition to income for future prospects shall help in achieving certainty in arriving at appropriate compensation. We approve the method that an addition of 50% of actual salary be made to the actual salary income of the deceased towards future prospects where the deceased had a permanent job and was below 40 years and the addition should be only 30% if the age of the deceased was 40 to 50 years and no addition should be made where the age of the deceased is more than 50 years. Where the annual income is in the taxable range, the actual salary shall mean actual salary less tax. In the cases where the deceased was self­employed or was on a fixed salary without provision for annual increments, the actual income at the time of death without any addition to income for future prospects will be appropriate. A departure from the above principle can only be justified in extraordinary circumstances and very exceptional cases." In the instant case the deceased was working as a Director with two companies and PW1 had stated about the future prospects of the deceased. As such the petitioners would be entitled to addition of 30% of the income towards future prospects as the deceased was more than 40 years old. Suit No.38/14

Ritik Bajaj Vs. Savitri Raghu Raman Page No. 59 of 75 Accordingly the loss of dependency as per the annual income i.e. Rs. 4,00,000/­ is calculated as under :

Rs.4,00,000/­ + Rs.1,20,000/­ (30% future prospects) = Rs.5,20,000/­ - Rs. 1,73,333 approximately (i.e. 1/3rd towards personal expenses) = Rs. 3,46,667/­ X 14 (multiplier) = Rs.48,53,338/­ rounded off to Rs.48,53,000/­.

50. The petitioners are also entitled to compensation for loss of love and affection, loss of estate and funeral expenses. However no amount is being awarded towards loss of consortium in the facts and circumstances of the case wherein the husband of the deceased is respondent No.4 and it has been held that he had contributed to the happening of the accident.

The total compensation is determined as under:

                  Loss of dependency                :   Rs.48,53,000/­
                  Love and affection                :   Rs.1,00,000/­
                  Loss of Estate                    :   Rs.10,000/­
                  Funeral expenses                  :   Rs.10,000/­

                                       Total        :   Rs.49,73,000/­

Thus, the total compensation would amount to Rs.49,73,000/­. Suit No.38/14

Ritik Bajaj Vs.  Savitri Raghu Raman                                          Page No. 60 of 75
 RELIEF

51. The petitioners are awarded a sum of Rs.49,73,000/­ (Rs.Forty Nine Lacs Seventy Three Thousand only) with interest at the rate of 7.5% per annum from the date of filing the claim petition till its realization, including, interim award, if any already passed in favour of the petitioners and against the respondents. The petitioners Ritik and Rahil would be entitled to 50% share each in the awarded amount. The learned counsel for the petitioners has relied upon the judgment of the Hon'ble Supreme Court in Govind Yadav v. New India Assurance Co. Ltd. 2012 ACJ 28 where it was observed that the insurance companies with whom the vehicles involved in the accident are insured usually have battery of lawyers on their panel and they contest the claim petitions by raising all possible technical objections for ensuring that their clients are either completely absolved or their liabilities minimized and this results in prolonging the proceedings before the Tribunal. It is true that in the instant case the accident had taken place in 2006 and even the claim petition was filed in 2006 when the petitioners were still minors and the proceedings have continued for nearly 9 years owing to various reasons and the petitioners have also become major and have even done their graduation but it cannot be said that the delays were entirely on account of the insurance company.

52. For safeguarding the compensation amount from being frittered away by the claimants, directions have been given by Hon'ble Supreme Court for Suit No.38/14 Ritik Bajaj Vs. Savitri Raghu Raman Page No. 61 of 75 preserving the award amount in the case of Jai Prakash Vs. National Insurance Co. Ltd. and Others (2010) 2 Supreme Court Cases 607. In view of the directions contained in the above judgment the award amount is to be disbursed as follows:

a) 20% of the share of the petitioners be released to them by transferring it into their savings account and remaining amount out of their share be kept in FDRs in UCO Bank, Patiala House Court, New Delhi in the following manner:

1. Fixed deposit in respect of 10% for a period of one year.

2. Fixed deposit in respect of 10% for a period of two years.

3. Fixed deposit in respect of 10% for a period of three years.

4. Fixed deposit in respect of 10% for a period of four years.

5. Fixed deposit in respect of 10% for a period of five years.

6. Fixed deposit in respect of 10% for a period of six years.

7. Fixed deposit in respect of 10% for a period of seven years.

8. Fixed deposit in respect of 10% for a period of eight years.

b) The respondents No.2, 3 and 5 are directed to deposit the amount of their share directly by way of crossed cheques in terms of the above order in UCO Bank, Patiala House Court, New Delhi in the name of UCO Bank, Patiala House Court, New Delhi A/c Ritik Bajaj and Rahil Bajaj within 30 days of the passing of the award.

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c) Cheques be deposited within thirty days herefrom under intimation to the petitioners. In case of default, the respondents No.2, 3 and 5 shall be liable to pay further interest @ 12% per annum for the period of delay.

d) On the deposit of the award amount, the Branch Manager of UCO Bank, Patiala House Court, New Delhi is directed to prepare Fixed Deposit Receipts as ordered above and the balance amount be released.

e) The interest on the fixed deposits shall be paid monthly by automatic credit of interest in the saving accounts of the petitioners.

f) The withdrawal from the aforesaid account shall be permitted to the petitioners after due verification and the bank shall issue photo identity cards to the petitioners to facilitate their identity.

g) No cheque book shall be issued to the petitioners without the permission of the court.

h) The original fixed deposit receipts shall be retained by the bank in safe custody. However, the original pass books shall be given to the petitioners along with the photocopy of the fixed deposit receipts. Upon the expiry of period of FDR the bank shall automatically credit the maturity amount in the saving account of the beneficiary.

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i) The original fixed deposit receipts shall be handed over to the petitioners on the expiry of the period of the fixed deposit receipts.

j) No loan, advance, or withdrawal shall be allowed on the said FDRs without the permission of the court.

k) On the request of the petitioners, the bank shall transfer the saving account to any other branch/bank, according to the convenience of the petitioners.

l) The petitioners shall furnish all the relevant documents for opening of the saving bank account and Fixed Deposit to Senior Manager of UCO Bank, Patiala House Court, New Delhi.

53. The petitioners shall file two sets of photographs along with their specimen signatures, out of which one set to be sent to the Nodal Officer, UCO Bank, Patiala House Court, New Delhi along with copy of the award by Nazir and the second set be retained to the court for further reference. The photographs be stamped and sent to the bank. The petitioners shall also file the proof of residence and furnish the details of the bank account with the Nazir within a week. The petitioners shall file their complete address as well as address of their counsel for sending the notice of deposit of the award amount. Suit No.38/14

Ritik Bajaj Vs.  Savitri Raghu Raman                                            Page No. 64 of 75
 APPORTIONMENT OF LIABILITY:

54. The learned counsel for the petitioners had argued that it being a case of composite negligence the petitioners were at liberty to recover the amount of the award from any of the respondents. The learned counsel has placed reliance on the judgment of the Hon'ble High Court of Rajasthan in Nani and others v. Soma Lal and others 2007 ACJ 1163 where it was observed that in case of composite negligence, the claimants are entitled to recover full compensation from any of the joint tort feasors. The law on composite negligence is well settled. However under Section 168 of the MV Act the Tribunal has to specify the amount payable by each of the parties.

55. The respondent No.1 is the alleged owner of the Maruti car bearing No.UP­16A­7841, the respondent No.2 is stated to be the present owner of the Maruti car and the respondent No.3 is the driver of the Maruti car. It is the case of the respondent No.1 that she had sold the Maruti car to the respondent No.2 whereas the same is denied by the respondent No.2 and it is stated by him that the car came to him for only one day. The respondent No.3 has contended that he had taken the vehicle only that day. As regards the respondent No.3, it is not in dispute that he was driving the Maruti car at the time of the accident. During cross­examination by the learned counsel for the respondent No.1 R3W1 stated that the Maruti car which he was driving belonged to Shri Sanjay Kumar and he (R3W1) was working as driver with him and he (R3W1) had Suit No.38/14 Ritik Bajaj Vs. Savitri Raghu Raman Page No. 65 of 75 taken vehicle from him only for that day. During cross­examination by the learned counsel for the respondent No.4 R3W1 stated that he had gone to Shri Sanjay Kumar only for one day and Shri Sanjay Kumar had given him Rs. 100/­ for one day. Thus R3W1 stated that the Maruti car which he was driving belonged to Shri Sanjay Kumar and he (R3W1) was working as driver with him and he (R3W1) had taken vehicle from him only for that day. He stated that he had gone to Shri Sanjay Kumar only for one day and Shri Sanjay Kumar had given him Rs.100/­ for one day. However it is not the case of the respondent No.3 that at the time of the accident he had taken the car in his capacity as the driver of the respondent No.2. In fact in the written statement the respondent No.3 had averred that he and the respondent No.2 are friends and on the day of the alleged accident he had borrowed the said vehicle from the respondent No.2. Even the respondent No.2 had stated to that effect. As such the respondent No.3 would be liable to pay the compensation as he was not an employee of the respondent No.2 but had borrowed the car and was driving the same at the time of the accident.

56. In support of her contention, the respondent No.1 had appeared in the witness box as RW1 and deposed that she was the owner of Maruti Car No.UP­16A­7841 which was sold to Mr. Sanjay the respondent No.2, 4­5 years prior and the physical possession was also given to him. She stated that on the alleged date of the accident i.e. 4.2.2006 she was neither the owner nor in possession of the Maruti Car No.UP­16A­7841 and was in no way concerned Suit No.38/14 Ritik Bajaj Vs. Savitri Raghu Raman Page No. 66 of 75 with the vehicle. During cross­examination by the learned counsel for the petitioners RW1 admitted that she had not informed the transport authority about the sale of the vehicle to Sanjay Kumar/respondent No.2 as per law. The respondent No.2 appeared in the witness box as R2W1 and stated that the financial liability arising out of the alleged injuries sustained in the accident could either be that of the respondent No.4 or the insurer of the said vehicle but not his. He stated that he was not the registered owner of the Martui Car against which the allegations about having been involved in the accident were made, thus rendering the entire claim petition as redundant against him. He stated that as such the petitioners were not entitled to the relief claimed. He was not cross­examined on behalf of the respondents No.3 and 4. As such the respondent No.2 had denied being the registered owner of the Maruti car on the date of the accident.

57. During cross­examination by the learned counsel for the respondent No. 2 RW1 stated that the full name of her husband is Nageshwaram Raghuraman. She stated that she is a working woman and working with National Insurance Co. as Divisional Manager. She stated that she had been working in National Insurance Co. for the previous about 24 years. She did not know any person by the name of Sanjay directly. She stated that she had sold her vehicle i.e. Maruti 800 car to Sanjay through the dealer Net Cop in August, 2004. She stated that the sale transaction in respect of her Maruti Car was done in Noida itself. She did not recollect what documents were prepared at Suit No.38/14 Ritik Bajaj Vs. Savitri Raghu Raman Page No. 67 of 75 that time about selling the Maruti Car volunteered because the Maruti car was used by her brother in law Shiv Kumar so at his instance she signed some documents at her residence at Noida. She stated that at that time she had signed one affidavit. She did not go to the place where her affidavit was got attested. She stated that after selling her Maruti 800 car she did not inform the RTO. She denied the suggestion that she did not sell her car to one Sanjay and that is why she did not inform the RTO. During cross­examination by the learned counsel for the respondent No.5 RW1 admitted that till date she had not informed RTO regarding the sale of vehicle No.UP­16­7841. Thus RW1 admitted that she had not informed the transport authority about the sale of the vehicle to Sanjay Kumar/respondent No.2 as per law. She stated that she had been working in National Insurance Co. for the previous about 24 years. She stated that she did not know any person by the name of Sanjay directly and that she had sold her vehicle i.e. Maruti 800 car to Sanjay through the dealer Net Cop in August, 2004. She stated that the sale transaction in respect of her Maruti Car was done in Noida itself though she did not recollect what documents were prepared at that time about selling the Maruti Car and volunteered because the Maruti car was used by her brother in law Shiv Kumar so at his instance she signed some documents at her residence at Noida. She stated that at that time she had signed one affidavit though she did not go to the place where her affidavit was got attested. Subsequently the respondent No.1 had moved an application to bring the affidavit on record though the same was not put to the respondent No.2 during cross­ Suit No.38/14 Ritik Bajaj Vs. Savitri Raghu Raman Page No. 68 of 75 examination.

58. During cross­examination by the learned counsel for the petitioners R2W1 stated that he was not the owner of Maruti Car No.UP 16A 7841 and the vehicle No.UP 16A 7841 had remained in his possession for one day and the car was given to him by his acquaintance i.e. one Shri Lilu. He stated that Shri Lilu was a driver and used to drive vehicle of travel company in Noida. He stated that Shri Lilu had given him the vehicle on the pretext that the said vehicle was for sale and if he was interested he could buy the said vehicle. He stated that he had not purchased the Maruti car No.UP 16A 7841. During cross­examination by the learned counsel for the respondent No.1 R2W1 stated that he knew Shri Lilu for about 3­4 months prior to the handing over of Maruti Car No.UP 16A 7841 to him. He stated that Shri Lilu had given him the vehicle on the same day when it met with the accident volunteered however he did not remember the date. He stated that Shri Lilu had handed over the Maruti car No.UP 16A 7841 to him in the evening prior to the accident. He stated that he had not personally tested the Maruti Car No.UP 16A 7841 as he was not well and he gave the car to Shri Ram Kumar to drive and to test the same. He stated that Shri Ram Kumar was not his driver but he belonged to his village. He stated that the car was given by him to Shri Ram Kumar at about 6­7 pm i.e. after about one hour of the receipt of the car by him from Shri Lilu. He stated that Shri Ram Kumar had told him that he wanted to attend one marriage along with his family and he would use the car for the said Suit No.38/14 Ritik Bajaj Vs. Savitri Raghu Raman Page No. 69 of 75 purpose and by the same the car would also be tested. He denied the suggestion that he purchased Maruti car No.UP 16A 7841 on 5.8.2004 for a sum of Rs.1,10,000/­ from the respondent No.1. He denied the suggestion that in pursuance of the purchase of Maruti Car No.UP 16A 7841 he had signed one affidavit on 5.8.2004 and he had also paid a sum of Rs.One Lac Ten Thousand to the respondent No.1. During cross­examination by the learned counsel for the respondent No.5 he denied the suggestion that he had filed a false affidavit. Thus R2W1 reiterated that he was not the owner of Maruti Car No.UP 16A 7841 and the vehicle No.UP 16A 7841 had remained in his possession for one day and the car was given to him by his acquaintance i.e. one Shri Lilu on the pretext that the said vehicle was for sale and if he was interested he could buy the said vehicle. He stated that he had not purchased the Maruti car No.UP 16A 7841. He stated that Shri Lilu had given him the vehicle on the same day when it met with the accident volunteered however he did not remember the date. As such the respondent No.2 had stated about the car being given to him only for one day by one Lilu but the said Lilu has not been produced in the witness box. It is significant that the respondent No.2 had contended that he had the car for only one day but in that one day he had also given the car to the respondent No.3 who he stated belonged to his village for going for a marriage which does not appear plausible. A suggestion was put to him that he purchased Maruti car No.UP 16A 7841 on 5.8.2004 for a sum of Rs.1,10,000/­ from the respondent No.1 which he denied as also that in pursuance of the purchase of Maruti Car No.UP 16A 7841 he had signed Suit No.38/14 Ritik Bajaj Vs. Savitri Raghu Raman Page No. 70 of 75 one affidavit on 5.8.2004 and he had also paid a sum of Rs.One Lac Ten Thousand to the respondent No.1.

59. It is thus seen that according to the respondent No.1 she had sold the car to the respondent No.2 which the respondent No.2 denied. It cannot be disputed that the respondent No.1 was the registered owner of the Maruti car on the date of the accident and a perusal of the record shows that the petitioners along with the criminal record had filed copy of the notice which was issued by the IO to the respondent No.1 to produce the vehicle and the driver and thereafter notice was issued to the respondent No.2 who had replied that on 9.2.2006 his Maruti car was being driven by the respondent No.

3. While the certified copies of the said documents are not on record the respondent No.2 had not mentioned that the Maruti car did not belong to him. Moreover the respondent No.3 had also stated about the car belonging to the respondent No.2. Further a perusal of the record shows that a copy of the sale agreement and of letters of Netcorps Multibrand Motor Plaza dated 19.7.2004 were also placed on record at the initial stage though they have not been got proved. In these circumstances while the respondent No.1 was the registered owner of the offending vehicle on the date of the accident the respondent No.2 was in possession of the vehicle and he had further handed over the vehicle to the respondent No.3. Even if the contention of the respondent No.2 were to be accepted it is clear that the respondent No.1 had not authorized the use of the vehicle by the respondent No.3 and by his own admission the car had been Suit No.38/14 Ritik Bajaj Vs. Savitri Raghu Raman Page No. 71 of 75 handed over to the respondent No.3 by the respondent No.2. As such no liability can be fixed on the respondent No.1. However the respondents No.2 and 3 would be equally liable to pay 40% of the awarded amount to the petitioners as the negligence of the Maruti car bearing No.UP­16A­7841 has been apportioned as 40%.

60. Regarding the remaining 60% of the awarded amount the respondent No.4 is the owner of the Toyota Prado bearing No.DL­5CB­3456 and the respondent No.5 is the insurer of the said vehicle. It is the contention of the respondent No.5 that it is not liable to pay any compensation to the petitioners as they are not covered in the definition of third party. In support of its case the respondent No.5 had produced R5W1 in the witness box who stated that the liability of the respondent insurance company was to indemnify the insured towards the third party. She stated that the deceased was the wife of the respondent No.4, deceased was not third party and the insurance company was not liable to indemnify the insured. She stated that the charge sheet was filed only against the driver of vehicle No.UP­16A­7841 respondent No.3/ Ram Kumar s/o Shri Babu Jatav. She relied upon the policy and the copy of the standard form of the private car policy and copy of Indian Motor Tariff is Ex.R5W1/A. She was not cross­examined on behalf of the respondents No.1 and 2. During cross­examination by the learned counsel for the petitioners R5W1 stated that she had been working with Oriental Insurance Company Ltd. for the previous 5 years and from the previous 8 months she had been with the Suit No.38/14 Ritik Bajaj Vs. Savitri Raghu Raman Page No. 72 of 75 legal department. She stated that she knew what was third party insurance. She stated that except the legal heirs, the insured and the driver the others were covered in third party. She knew who was the deceased in the matter and the deceased was not a third party as stated by her in her affidavit. She denied the suggestion that the deceased in the instant case was a third party. She stated that she had gone through the charge sheet in the matter. She denied the suggestion that apart from the owner everybody was a third party. Thus R5W1 stated that she knew what was third party insurance and that except the legal heirs, the insured and the driver the others were covered in third party and the deceased was not a third party. She denied the suggestion that apart from the owner everybody was a third party.

61. During cross­examination by the learned counsel for the respondent No. 5 R4W1 stated that he was not aware whether the Maruti vehicle which was involved in the accident was insured or not. He stated that his vehicle was insured with M/s Oriental Ins. Co. Ltd. He had not brought the original insurance policy on that day. He denied the suggestion that the terms and conditions appended to the insurance policy Ex.R4W2/R1 were not supplied along with the insurance policy and the same were fabricated documents. He denied the suggestion that he had filed a false affidavit in order to help the petitioners instead of the insurance company being the insured of the vehicle. Thus R4W1 stated that he was not aware whether the Maruti vehicle which was involved in the accident was insured or not. He stated that his vehicle was Suit No.38/14 Ritik Bajaj Vs. Savitri Raghu Raman Page No. 73 of 75 insured with M/s Oriental Ins. Co. Ltd. He denied the suggestion that the terms and conditions appended to the insurance policy Ex.R4W2/R1 were not supplied along with the insurance policy and the same were fabricated documents. The learned counsel for the petitioners has relied on the judgment of the Hon'ble Supreme Court in Jai Prakash v. National Insurance Co. Ltd. and others 2010 ACJ 455 on what is third party but a perusal of para 24 of the said judgment shows that it was the change proposed that 'third party' be defined to cover any accident victim (that is any third party, other than the owner). The law regarding occupant of a car is well settled and it has been held by the Hon'ble High Court of Delhi in Yashpal Luthra & Anr. v. United India Insurance Co. Ltd. and Another MAC. APP. No.176/2009 decided on 9.12.2009 that the occupants of a car would be covered under comprehensive policy and in fact in the said case the Oriental Insurance Co. Ltd. had admitted its liability in respect of a pillion rider on a two wheeler and occupants in a private car under comprehensive/ package policy. The policy in respect of the Toyota Prado also falls in this category. As such the respondent No.5 i.e. Oriental Insurance Co. Ltd. being the insurance company in respect of the Toyota Prado bearing No.DL­5CB­3456 would be liable to pay the compensation on behalf of the respondent No.4 in respect of 60% of the awarded amount.

62. The respondents No.2 and 3 are directed to deposit 40% of the awarded amount and the respondent No.5 is directed to deposit 60% of the Suit No.38/14 Ritik Bajaj Vs. Savitri Raghu Raman Page No. 74 of 75 awarded amount within 30 days with interest at the rate of 7.5% from the date of filing of the claim petition till its realization in UCO Bank, Patiala House Courts, New Delhi failing which they would be liable to pay interest at the rate of 12% per annum for the period of delay.

63. Nazir to report in case the cheques are not deposited within 30 days of the passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself. The respondents No.2, 3 and 5 shall deposit the award amount along with interest upto the date of notice of deposit to the claimants with a copy to their counsel and the compliance report shall be filed in the court along with proof of deposit of award amount, the notice of deposit and the calculation of interest on 11.5.2015. An attested copy of the award be given to the parties (free of cost) and a copy be also sent to the Nodal Officer, UCO Bank, Patiala House. File be consigned to Record Room.

Announced in open court
on this 9th day of February, 2015                        (GEETANJLI GOEL)
                                                             PO: MACT­2
                                                                  New Delhi




Suit No.38/14
Ritik Bajaj Vs.  Savitri Raghu Raman                                    Page No. 75 of 75