Delhi District Court
Shahin Saiyeda vs Mohd. Aadil on 22 November, 2014
IN THE COURT OF MS. GEETANJLI GOEL, PO: MOTOR ACCIDENT
CLAIMS TRIBUNAL2, PATIALA HOUSE COURTS, NEW DELHI
Suit No.311/14
Date of Institution: 19.09.2012
IN THE MATTER OF:
1. Shahin Saiyeda
W/o Shri Sayed Ghaffar Ali
2. Sayed Ghaffar Ali
S/o Shri Akhter Ali Sayed
3. Shagufta Saiyeda
D/o Shri Sayed Ghaffar Ali
4. Saiyed Gafyur Ali
S/o Shri Sayed Ghaffar Ali
5. Nadira
D/o Shri Sayed Ghaffar Ali
6. Saiyed Asad Ali
S/o Shri Sayed Ghaffar Ali.
(Petitioners No.4 to 6 being minor
represented through their mother
Shahin Saiyeda/petitioner No.1)
All r/o :
47/559, R. K. Ashram Marg
Panchkuiya Road
NDMC, New Delhi. ...Petitioners
Suit no.311/14
Shahin Saiyeda & Ors. v Mohd. Aadil & Ors. Page no. 1 of 38
Versus
1. Mohd. Aadil
S/o Shri Ratti Khan
R/o Ghudawali, PS Hathin
Distt. Palwal, Haryana.
2. Jafruddin
S/o Shri Samsuddin
R/o Village Noorpur
TehNuh, Distt. Mewat
Haryana
3. M/s Bajaj Allianz General Insurance Co. Ltd.
(Through Manager)
201201A, IInd Floor, ITL Twin Tower
Netaji Subhash Place
Pitampura
Delhi. ...Respondents
Final Arguments heard : 10.11.2014 Award reserved for : 22.11.2014 Date of Award : 22.11.2014 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.311/14
Shahin Saiyeda & Ors. v Mohd. Aadil & Ors. Page no. 2 of 38
2. It is the case of the petitioners that on the unfortunate day of 30.01.2012 the deceased Yusuf Ali along with his friend was coming back to their room on foot towards Nuh after exams. At about 01.00 hrs, when they reached near Hamid Ki Kothi, Tauru Road, PS Nuh, Distt. Mewat, Haryana, then all of a sudden the offending vehicle No.HR27C4274 (motorcycle) being driven by its driver/respondent No.1 at a very high speed rashly, negligently, without blowing horn, neglecting the traffic rules came from the back side and hit the deceased with very great force. Due to the violent impact the deceased fell down on the road and sustained grievous injuries. It is averred that the deceased was immediately taken to Civil Hospital, Nuh, where the doctors gave him first aid and referred to Jai Prakash Narayan Apex Trauma Center, New Delhi, where during the course of treatment the deceased succumbed to his injuries and was declared dead by the doctors of the said Hospital. It is averred that the dead body of the deceased was taken by the petitioners after post mortem from the Hospital on 31.01.2012. It is stated that in respect of the accident FIR No.55/12 under Sections 279/337 IPC was registered at PS Nuh, District Mewat, Haryana.
3. It is averred that at the time of the accident, the deceased was 21 years of age, with very good health and physique and was not suffering from any disease or ailment. It is averred that the deceased was a student of Engineering and pursuing his degree from Mewat Engineering College, Vill. Palla, TehNuh, Distt. Mewat, Haryana. It is averred that the deceased was a Suit no.311/14 Shahin Saiyeda & Ors. v Mohd. Aadil & Ors. Page no. 3 of 38 brilliant student and the only hope of his parents. It is averred that the petitioners are the mother, father, brother and sisters of the deceased, they are the only legal heirs of the deceased and there is no other legal heir of the deceased except the petitioners. It is averred that the petitioners had incurred about Rs.50,000/ on the last rites of the deceased. It is averred that the principle of ResIpsaLoquitur is attracted in the case because the accident took place due to the rash and negligent driving on the part of the respondent No.1/driver of the offending vehicle No.HR27C4274. It is averred that the owner of the offending vehicle and the Insurance Company are jointly vicariously and severally liable to compensate the petitioners. It is prayed that an amount of Rs.50,00,000/ be awarded as compensation in favour of the petitioners and against the respondents.
4. Written statement was filed on behalf of the respondent No.2 taking the preliminary objections that the petitioners have no cause of action to file the petition against the respondent No.2/owner of the offending vehicle, who has no liability of any kind to pay any compensation on account of the alleged accident. It is averred that the petition is not maintainable, because the respondent No.2 has no concern with the accident directly or indirectly. It is averred that if there is any concern of the respondent No.2 with the alleged accident, then the respondent No.1 who was driving the offending vehicle at the time of the accident has to bear the liability and he had a valid license and the vehicle is insured with the respondent No.3, if any liability arises the same Suit no.311/14 Shahin Saiyeda & Ors. v Mohd. Aadil & Ors. Page no. 4 of 38 is to be paid by the Insurance Co., therefore, the respondent No.2 owner of the offending vehicle is not liable to pay any compensation to the petitioners/LRs of the deceased. It is averred that the accident occurred but it was not clear whose fault was made out in the accident the deceased or the driver/ respondent No.1, but the respondent No.2 was already out of the circle of the accident and had no role in the accident and all the liability is of the Insurance Co., because the vehicle was fully insured with the Insurance Co. M/s Bajaj Allianz General Insurance Co. Ltd. The averments made in the claim petition were denied. It is averred that the respondent No.2 has no concern whatsoever with the alleged offending vehicle. It is averred that the respondent No.2/owner of the offending vehicle has no concern with the accident and the liability becomes of the person who was driving the vehicle and the Insurance Co. of the offending vehicle. It is denied that the alleged accident was caused due to the sole negligence of the respondent No.1 who was driving the offending vehicle at the time of the accident.
5. Written statement was filed on behalf of the respondent No.3 taking the preliminary objections that the petition is not maintainable against the respondent No.3 insurance company. It is averred that the vehicle No.HR27C4274 as mentioned in the petition was not insured with the respondent No.3 in the name of the respondent No.2 Shri Jafruddin on the date of the accident. It is averred that the cover note No.MC1001370399 allegedly showing the insurance in respect of vehicle No.HR27C4274 in the Suit no.311/14 Shahin Saiyeda & Ors. v Mohd. Aadil & Ors. Page no. 5 of 38 name of respondent No.2 for the period 05.05.2011 to 04.05.2012, is a false and fabricated document produced by the respondent No.2/ petitioners. It is averred that certain cover notes were lost when the same were in the custody of the person concerned and accordingly a public notice in that regard was issued in the newspaper and a report was also lodged with the police station Ranjit Nagar, vide NCR No.933/2011 dated 19.09.2011 on account of the loss of cover note book from the possession of the person concerned. It is averred that the newspaper publication was issued prior to the date of accident. It is stated that since the vehicle was not insured in favour of the respondent No.2 vide the said cover note, the respondent No.3 has no liability to indemnify the respondent No.2 or to pay any amount of compensation to the petitioners. It is averred that all the material allegations made in the petition are false and the petition is not maintainable either on facts or in law against the respondent No.
3. It is averred that the amount of compensation claimed is very exorbitant and without any basis. It is averred that the driver of the vehicle was not holding a valid and effective driving license at the time of the alleged accident. It is averred that the petition is bad for misjoinder of necessary parties and the brother and sisters of the deceased are not the necessary parties to the petition. The averments made in the claim petition were denied. It is averred that the vehicle in question was not insured with the respondent No.3 in the name of the respondent No.2 on the date of the alleged accident. Suit no.311/14
Shahin Saiyeda & Ors. v Mohd. Aadil & Ors. Page no. 6 of 38
6. An application under order 1 rule 10 CPC was filed on behalf of the petitioners for impleading the owner and insurer as parties which was allowed vide order dated 24.10.2013 of my learned predecessor. From the pleadings of the parties, the following issues were framed vide order dated 27.03.2014:
1. Whether the deceased sustained fatal injuries in the accident which occurred on 30.01.2012 at about 01.00 hrs. Near Hamid Ki Kothi, Tauru Road, PS Nuh, District Mewat (Haryana) caused by rash and negligent driving of vehicle No.HR27C4274 driven by respondent no.1 and owned by respondent no.2 and insured with respondent no.3? OPP.
2. Whether the LRs of the deceased are entitled for compensation? If so, to what amount and from whom?
3.Relief.
7. On behalf of the petitioners the petitioner No.2 Sayed Ghaffar entered into the witness box as PW1 and led his evidence by way of affidavit which is Ex.PW1/A reiterating the averments made in the claim petition. He stated that his deceased son was taken to JPNA Trauma Center in ambulance by his colleagues, where during the course of treatment he succumbed to his injuries and was declared dead by the Doctors of the JPNA Trauma Center, New Delhi in the evening at about 8.00 p.m. of 30.01.2012. He stated that the deceased was a student of second semester of Engineering and pursuing his degree from Mewat Engineering College, Vill. PallaNuh, Distt. Mewat, Suit no.311/14 Shahin Saiyeda & Ors. v Mohd. Aadil & Ors. Page no. 7 of 38 Haryana. He stated that the deceased was a brilliant student and their only hope. He stated that the petitioners were depending upon the income of the deceased. He stated that the deceased was unmarried at the time of the accident. Copy of educational certificates of the deceased is Ex.PW1/1 (colly), copy of election card of PW1 is Ex.PW1/2, copy of election card of his wife is Ex.PW1/3 and copy of ration card is Ex.PW1/4. The certified copies of the criminal court record are Ex.PX (colly).
8. Mohd. Asjad was produced in the witness box as PW2 and he deposed that on 30.01.2012, he along with his friend Yusuf was coming after completing their examination. When he reached at about 1.00 p.m. in front of the house of Chaudhary Hamid, Tawru Road, Nuh Mewat, they were going on foot on the side of the road, the motorcycle (Hero Honda Splender) bearing registration No.HR27C4274 came from behind in a rash and negligent manner and hit his friend Yusuf as a consequence of which he fell down on the road. The motorcyclist went away after causing the accident. He stopped after some distance and was apprehended by the passersby and his name and address were inquired by him. His name was revealed as Adil Khan. He stated that his friend sustained grievous injuries on various parts of the body. He was removed to the Government Hospital, Nuh by them in a private Tempo. The doctor attended the injured and referred to Delhi Trauma Center. He was brought to Delhi by his other friends. He stated that the police met him in the Government Hospital and his statement was recorded there. He stated that Suit no.311/14 Shahin Saiyeda & Ors. v Mohd. Aadil & Ors. Page no. 8 of 38 the accident had taken place due to the rash and negligent driving on the part of the respondent No.1 while driving the motorcycle. He stated that a criminal case was pending for trial against the respondent No.1 and his statement had also been recorded in the criminal case. PE was closed on 29.5.2014.
9. The respondent No.2 Jafruddin appeared in the witness box as R2W1 and led his evidence by way of affidavit which is Ex.R2W1/A. He deposed that on date 30.01.2012 at about 1.00 hrs he gave his motorcycle No.HR27C4374 to his friend namely Mohd. Aadil, for he was going for some work, because he had valid DL therefore, he gave him his vehicle without any worry therefore, during the said process when the driver/respondent No.1 was going and driving the motorcycle as per rules of traffic and under the manner and on proper way and correct side of the road and in a slow speed therefore during the said process when he reached at near Hamid Ki Kothi, Tauru Road, PS Nuh, Distt. Mewat, Haryana then all of a sudden one person/deceased suddenly came in front of the vehicle and he tried to save him with his best efforts but the said person/deceased was not saved and the accident occurred. He stated that the accident occurred due to the negligent manner of the deceased. He stated that he was not involved in the accident from any side or corner because the vehicle was driven at the time of accident by another person, and he was not liable to pay any amount of compensation, and he was not entitled for any reason and for the cause of the accident he was not responsible. He stated that at the time of the accident the respondent No.1 Suit no.311/14 Shahin Saiyeda & Ors. v Mohd. Aadil & Ors. Page no. 9 of 38 was having valid DL and R2W1 had RC and other documents. He stated that the vehicle was fully insured at the time of the accident with respondent No.3 i.e. M/s Bajaj Allianz General Insurance Co. Ltd. therefore if any liability arose then the insurance company was fully liable to pay the compensation to the petitioners, and the insurance company was only liable to pay the compensation as per rules and manner, because he had valid insurance policy of his said vehicle, therefore the insurance company was fully liable to pay the compensation. Copy of RC is Ex.R2W1/1, copy of insurance policy is Ex.R2W1/2 and copy of DL is Ex.R2W1/3. He was not crossexamined on behalf of the petitioners.
10. On behalf of the respondent No.3 Shri Gaurav Parashar, Senior Executive Legal appeared in the witness box as R3W1 and led his evidence by way of affidavit which is Ex.R3W1/A. He deposed that the vehicle No.HR27C4274 was never insured with the respondent No.3 in the name of the respondent No.2 Shri Jafruddin. He stated that a false and fabricated cover note No.MC1001370399 allegedly showing that the vehicle No.HR27C4274 was insured in the name of the respondent No.2 Shri Jafruddin for the period 05.05.2011 to 04.05.2012 with the respondent No.3 insurance company had been filed on record. He stated that as per the record of the respondent No.3, a cover note book bearing No.A237040 containing the cover note leaf bearing SI. No.MC1001370392 to MC1001370400 was misplaced from the custody of the agent of the insurance company i.e. M/s Suit no.311/14 Shahin Saiyeda & Ors. v Mohd. Aadil & Ors. Page no. 10 of 38 S.L.K. Marketing Pvt. Ltd. 26/18, Ground Floor, East Patel Nagar, New Delhi 110008 from the area of East Patel Nagar on 19.09.2011 and inspite of best efforts made by the said persons, the book containing the cover notes was not traceable. On account of the misplacing of the said cover note book containing the cover note No.MC1001370399, a noncognizable report No.933/2011 dated 19.09.2011 was duly registered at police station Ranjit Nagar, Delhi. He stated that an indemnity bond was also issued by the agent M/s SLK Marketing Pvt. Ltd. from whose custody the cover note books were lost, in favour of the respondent No.3 insurance company. He stated that a public notice with respect to the loss of cover note book containing the cover note No.MC1001370399 was also got published by the respondent No.3 in the daily newspaper Amar Ujala on 07.01.2013 thereby informing the public at large regarding the loss of the said cover note. He stated that the cover note in dispute i.e. MC1001370399 allegedly showing the insurance in respect of vehicle No.HR27C7274 was one of the lost cover notes and had been filed on the court record in order to show that the vehicle in question was insured with the respondent No.3 insurance company. He stated that in fact, the respondent No.3 insurance company had never received any premium for the vehicle No.HR27C4274 for the period covering the date of accident or otherwise. He stated that since the vehicle No.HR27C4274 was not insured with the respondent No.3 in the name of the respondent No.2, the respondent No.3 was not liable to indemnify the respondent No.2 or to pay any amount of compensation to the petitioners. Copy of FIR bearing No.NCR933/11 dated Suit no.311/14 Shahin Saiyeda & Ors. v Mohd. Aadil & Ors. Page no. 11 of 38 19.09.2011 is Ex.R3W1/1, copy of indemnity bond dated 10.10.2011 is Ex.R3W1/2, copy of the newspaper Amar Ujala is Ex.R3W1/3 and copy of the cover note is Ex.R2W1/2. He was not crossexamined on behalf of the petitioners and the respondents No.1 and 2. RE was closed on 16.8.2014.
11. I have heard the Learned Counsel for the petitioners as well as the Learned Counsels for the respondents and perused the record. The petitioner No.2 was also examined on 09.10.2014 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.
12. My findings on the specific issues are as under:
Issue No. 1
13. 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. 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 Suit no.311/14 Shahin Saiyeda & Ors. v Mohd. Aadil & Ors. Page no. 12 of 38 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;
(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 Suit no.311/14 Shahin Saiyeda & Ors. v Mohd. Aadil & Ors. Page no. 13 of 38 Sections 166 and 140 of the Motor Vehicle Act.
14. The case of the petitioners is that on 30.01.2012 the deceased Yusuf Ali along with his friend was coming back to their room on foot towards Nuh after exams. At about 01.00 hrs, when they reached near Hamid Ki Kothi, Tauru Road, PS Nuh, Distt. Mewat, Haryana, then all of a sudden the offending vehicle No.HR27C4274 (motorcycle) being driven by its driver/respondent No. 1 at a very high speed rashly, negligently, without blowing horn, neglecting the traffic rules came from the back side and hit the deceased with very great force. Due to the violent impact the deceased fell down on the road and sustained grievous injuries. It was averred that the deceased was immediately taken to Civil Hospital, Nuh, where the doctors gave him first aid and referred to Jai Prakash Narayan Apex Trauma Center, New Delhi, where during the course of treatment the deceased succumbed to his injuries and was declared dead by the doctors of the said Hospital. It was averred that the dead body of the deceased was taken by the petitioners after post mortem from the Hospital on 31.01.2012. It was stated that in respect of the accident FIR No.55/12 under Sections 279/337 IPC was registered at PS Nuh, District Mewat, Haryana. The petitioner No.2 in paras 2 and 3 of his affidavit Ex.PW1/A had reiterated what was stated in the claim petition about the manner of the accident. The petitioners in support of their case had also examined PW2 who was stated to be the eye witness to the accident and he had also stated about the manner in which the accident took place.
Suit no.311/14 Shahin Saiyeda & Ors. v Mohd. Aadil & Ors. Page no. 14 of 38
15. The petitioners have placed on record certified copies of the criminal court record Ex.PX (colly) consisting of the certified copy of the charge sheet; certified copy of site plan; certified copy of the DD, copy of the RC of the offending vehicle, certified copy of the MLC and post mortem report of the deceased and copy of FIR and copy of arrest memo. As per the FIR No.55/12 under sections 279/337 IPC, PS Nuh, Mewat the case was registered on the basis of the complaint of Asjad who has been examined as PW2 wherein he had stated about the manner of the accident. As per the charge sheet the respondent No.1 has been charge sheeted for the offence under sections 279/337/304A IPC and also 181/146/196 MV Act.
16. The respondent No.2 had filed the written statement averring that he had no concern with the accident directly or indirectly. It was averred that the accident occurred but it was not clear whose fault was made out in the accident the deceased or the driver/ respondent No.1, but the respondent No.2 was already out of the circle of the accident and had no role in the accident. It was averred that the respondent No.2/owner of the offending vehicle had no concern with the accident. It was denied that the alleged accident was caused due to the sole negligence of the respondent No.1 who was driving the offending vehicle at the time of the accident. The respondent No.2 had also appeared in the witness box as R2W1 and deposed that on date 30.01.2012 at about 1.00 hrs he gave his motorcycle No.HR27C4374 to his friend namely Mohd. Aadil, for he was going for some work, because he had valid DL Suit no.311/14 Shahin Saiyeda & Ors. v Mohd. Aadil & Ors. Page no. 15 of 38 therefore, he gave him his vehicle without any worry therefore, during the said process when the driver/respondent No.1 was going and driving the motorcycle as per rules of traffic and under the manner and on proper way and correct side of the road and in a slow speed therefore during the said process when he reached at near Hamid Ki Kothi, Tauru Road, PS Nuh, Distt. Mewat, Haryana then all of sudden one person/deceased suddenly came in front of the vehicle and he tried to save him with his best efforts but the said person/deceased was not saved and the accident occurred. He stated that the accident occurred due to the negligent manner of the deceased. He stated that he was not involved in the accident from any side or corner because the vehicle was driven at the time of accident by another person.
17. During crossexamination by the learned counsel for the insurance company PW1 stated that he was not an eye witness of the accident. He stated that he had come to know about the accident from Imran who was a friend of his deceased son. He stated that he visited the place of accident after about 1015 days after the accident. He stated that his statement was not recorded by the police at any stage. Thus PW1 stated that he was not an eye witness of the accident and that he had come to know about the accident from Imran who was a friend of his deceased son and his statement was not recorded by the police. The petitioners in support of their case had examined PW2 and during crossexamination by the learned counsel for the insurance company PW2 stated that the deceased was doing the same course of B. Suit no.311/14 Shahin Saiyeda & Ors. v Mohd. Aadil & Ors. Page no. 16 of 38 Tech but his branch was different than that of the deceased. He stated that they met the deceased only after he joined the same college. He stated that they were studying in the same year of B. Tech. They were in the same examination center. Their exam started at about 9.30 a.m. and it was over by 12.30 p.m. He stated that there was a footpath on the road where the accident took place. They were walking on the side of the road but not on the footpath. He stated that his deceased friend was on his right side. There was no heavy traffic on the road at the time where the accident took place. He stated that he saw the offending motorcyclist, the moment he hit against his friend. He stated that the police had met him first time in the hospital. His statement was recorded by the police only in the hospital itself. He did not visit the place of accident along with the police after the accident. He denied the suggestion that he had not seen the accident and he was deposing falsely being the friend of the deceased in order to assist the claimant. Thus PW2 was cross examined on knowing the deceased and he stated that they were studying in the same year of B. Tech. It is significant that PW2 stated that there was a footpath on the road where the accident took place and they were walking on the side of the road but not on the footpath. It is true that PW2 stated that they were not walking on the footpath but the site plan also shows that the accident had taken place on the side of the road. Further he stated that there was no heavy traffic on the road at the time where the accident took place and the accident had taken place during daytime. R2W1 had deposed that the deceased had suddenly come in front of the motorcycle but there is nothing to Suit no.311/14 Shahin Saiyeda & Ors. v Mohd. Aadil & Ors. Page no. 17 of 38 show the same. Further the respondent No.1 himself has not stepped into the witness box to depose in that respect. Even nothing material has come out in the crossexamination of the witnesses to doubt the manner in which the accident took place.
18. In the instant case it cannot thus be disputed that the accident had taken place with the offending vehicle. The respondent No.1 who is the driver of the offending vehicle has not produced any evidence to dispute the version put forth by the petitioners. Further the criminal record has been placed on record which shows that the respondent No.1 has already been charge sheeted for the offence under Sections 279/337/304A IPC and 181/146/196 MV Act. In Basant Kaur and others v. Chattar Pal Singh and others 2003 ACJ 369 MP (DB) it was observed that registration of criminal case against the driver of the offending vehicle was enough to record a finding that the driver of the offending vehicle was responsible for causing the accident. There is nothing to disprove the involvement of vehicle No.HR27C4274. The fact that the charge sheet is filed against respondent No.1 and respondent No.1 is facing criminal trial is also not disputed. In view of the testimony of PWs and the documents on record which have remained unrebutted, the negligence of respondent No.1 has been prima facie proved.
19. It was stated that due to the violent impact of the accident the deceased fell down on the road and sustained grievous injuries. It was averred that the Suit no.311/14 Shahin Saiyeda & Ors. v Mohd. Aadil & Ors. Page no. 18 of 38 deceased was immediately taken to Civil Hospital, Nuh, where the doctors gave him first aid and referred to Jai Prakash Narayan Apex Trauma Center, New Delhi, where during the course of treatment the deceased succumbed to his injuries and was declared dead by the doctors of the said Hospital. The post mortem report of the deceased is on record as per which the cause of death was craniocerebral injuries due to ante mortem head injury consequent to blunt force impact. Thus it stands established that the deceased had sustained injuries in the alleged accident due to which he died. This issue is accordingly decided in favour of the petitioners and against the respondents. Issue No.2
20. 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 legal representatives of the deceased being the parents of the deceased and brother and sisters. PW1 was crossexamined on the point of dependency and during crossexamination by the learned counsel for the insurance company PW1 stated that he was doing the business of stones in Delhi since 1992. He stated that he was running the business from his home itself. He stated that he was having regular income of Rs.20,000/25,000/ p.m. from the said business. He stated that his wife was a housewife. He stated that the petitioner No.3, his daughter had studied up to graduation. His other children were all studying. He stated that he was postgraduate. He Suit no.311/14 Shahin Saiyeda & Ors. v Mohd. Aadil & Ors. Page no. 19 of 38 denied the suggestion that none of the petitioners were financially dependent upon the deceased. He stated that he himself was bearing all the educational expenses of his deceased son. Thus PW1 had stated that he was doing the business of stones and he was having regular income of Rs.20,000/ to 25,000/ p.m. from his business. During examination by the Tribunal the petitioner No.2 Shri Sayed Ghaffar Ali stated that he is 47 years old at present. He stated that apart from the deceased he had four children. He stated that at the time of the accident, he was in business and at present he was doing a job and he was earning Rs.12,000/ per month. As such the petitioner No.2 was earning and even otherwise being the father the petitioner No.2 cannot be regarded as dependent on the deceased. PW1 had stated that his wife is a housewife and during examination by the Tribunal the petitioner No.2 had stated that the petitioner No.1 is 37 years old and she is not working. Being the mother the petitioner No.1 would be regarded as dependent on the deceased. It is seen that petitioners No.3 to 6 are the siblings of the deceased and once the petitioner No.2 i.e. the father was alive and was earning they would be regarded as dependent on the father and not on the deceased. Besides it was stated that the deceased himself was a student. PW1 had deposed that the petitioners were dependent on the earning of the deceased but it is significant that he had stated that he himself was bearing all the educational expenses of his deceased son. As such only the petitioner No.1 being the mother of the deceased would be regarded as dependent on him.
Suit no.311/14 Shahin Saiyeda & Ors. v Mohd. Aadil & Ors. Page no. 20 of 38
21. In the claim petition it was stated that the deceased was 21 years old and PW1 had also deposed to that effect. The petitioners have placed on record the Secondary School Examination certificate of the deceased as per which his date of birth was 7.8.1991. As such the age of the deceased would be more than 20 years on the date of the accident i.e. 30.1.2012. It has been held in R.K. Malik and Anr. v. Kiran Pal and Ors. AIR 2009 SC 2506:
"15. The real problem that arises in the cases of death of children is that they are not earning at the time of accident. In most of the cases they were still studying and not working. However, under no stretch of imagination it can be said that the parents, who are appellants herein, have not suffered any pecuniary loss. In fact, loss of dependency by its very nature is awarded for prospective or future loss. In this context Lord Atkinson aptly observed in Taff Vale Rly. Col. V. Jenkins (191113) All England Reporter 160 as follows:
"In the case of death of an infant, there may have been no actual pecuniary benefit derived by its parents during the child's lifetime. But this will not necessarily bar the parent's claim and prospective loss will found a valid claim provided that the parents establish that they had a reasonable expectation of pecuniary benefit if the child had lived."
It was thus held that though the child may not be earning at the time of the accident but under no stretch of imagination it can be said that the parents have not suffered any pecuniary loss and loss of dependency by its very nature is awarded for prospective or future loss. Though the deceased in the Suit no.311/14 Shahin Saiyeda & Ors. v Mohd. Aadil & Ors. Page no. 21 of 38 instant case was more than 20 years old yet as per the case of the petitioners he was a student at the time of his death.
22. It is the case of the petitioners that at the time of the accident, the deceased was 21 years of age, with very good health and physique and was not suffering from any disease or ailment. It was averred that the deceased was a student of Engineering and pursuing his degree from Mewat Engineering College, Vill. Palla, TehNuh, Distt. Mewat, Haryana. It was averred that the deceased was a brilliant student and the only hope of his parents. PW1 in paras 4 and 5 of his affidavit Ex.PW1/A had deposed to that effect. He stated that the deceased was a student of second semester of Engineering and pursuing his degree from Mewat Engineering College, Vill. PallaNuh, Distt. Mewat, Haryana. He stated that the deceased was a brilliant student and their only hope. He stated that the petitioners were depending upon the income of the deceased. Copy of educational certificates of the deceased is Ex.PW1/1 (colly). During crossexamination by the learned counsel for the insurance company PW1 denied the suggestion that the documents filed by him pertaining to the education of his deceased son were not correct and were fabricated. During crossexamination by the learned counsel for the respondents No.1 and 2 PW1 stated that his deceased son was unmarried at the time of the accident. He denied the suggestion that the educational documents filed by him were false and fabricated and not related to the deceased or that the deceased did not qualify the entrance exam for Suit no.311/14 Shahin Saiyeda & Ors. v Mohd. Aadil & Ors. Page no. 22 of 38 B.Tech in the year 2011. Thus PW1 stated that his deceased son was unmarried at the time of the accident. He denied the suggestion that the educational documents filed by him were false and fabricated and not related to the deceased or that the deceased did not qualify the entrance exam for B.Tech in the year 2011. Even PW2 had stated that the deceased and he were doing the same course of B. Tech but his branch was different than that of the deceased and that they were studying in the same year of B. Tech. The certificate from the college is also there on record to that effect as also the mark sheet of 3rd Semester. Thus it cannot be disputed that the deceased was doing Engineering at the time of his death. However the deceased was not earning and as such the potential income of a person pursuing a professional course can be taken into consideration to award the loss of dependency.
23. It is settled law that the compensation in respect of death of a student pursuing a professional course is determined according to his/ her earning capacity after completion of the professional course. In Ramesh Chand Joshi v. New India Assurance Co. Ltd. MAC. APP. No.212/2006 decided on 20.1.2010 the deceased aged 19 years was a first year student of Bachelor of Engineering (Biotechnology) in Delhi College of Engineering. The Joint Registrar, Delhi College of Engineering filed an affidavit along with a chart giving the average salary of Rs.38,333/ per month drawn by the graduates in Biotechnology from Delhi College of Engineering during 2009. The Hon'ble High Court held the earning capacity of the deceased to be Rs.26,833/ after Suit no.311/14 Shahin Saiyeda & Ors. v Mohd. Aadil & Ors. Page no. 23 of 38 deduction of income tax. In MAC. APP. No. 238/2012 decided on 20.04.2012 Meenu Tognatta & Anr. v. National Insurance Co. Ltd. & Ors. MANU/DE/3207/2012 where the deceased were Second year students of BE in Information Technology Engineering and BE in Electronics & Communication Engineering respectively from Modi College of Engineering & Technology, Sikar and lost their life in a motor accident which occurred on 19.11.2004 and both the girls were quite brilliant in their studies and they had an excellent educational record apart from participation in extra curricular activities, it was observed that obviously, the deceased did not have any income on the date of the accident and their salary was presumed to be Rs. 18,000/ per month. It was observed that the gross salary of a Group 'A' officer in the Central and the State Government on the date of the accident i.e. 19.11.2004 on the basic pay of Rs. 8,000/ was Rs. 17,980/per month. If a qualified degree holder Engineer joined a Government service in the year 2004, he would get a salary of Rs. 8,000/plus all allowances. The placements in Private Sectors were on a much higher salary. In the said case the income of the deceased for the computation of loss of dependency was thus taken on the basis of gross salary of a Group A officer in the Central and the State Government on the date of the accident. In January, 2012 the salary of a Group A officer was in the pay band of Rs.15,600/ onwards with grade pay of Rs.5400/ and all the allowances would also be admissible. In the present case there is nothing on record to show that the deceased was a very brilliant student or that he was participating in extracurricular activities. Considering Suit no.311/14 Shahin Saiyeda & Ors. v Mohd. Aadil & Ors. Page no. 24 of 38 the facts and circumstances of the case and the college in which the deceased was studying the income of the deceased is notionally taken as Rs. 25,000/ p.m. for computation of the loss of dependency.
24. 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 18 applies for calculating the loss of income where the age of the deceased is 15 to 20 years and 21 to 25 years. The law is now well settled that in the case of death of a child, the multiplier would be as per the age of the deceased and not as per the age of the claimants or as per the age of the mother. The issue of multiplier was considered by the Hon'ble High Court of Delhi in the case of Mohd. Hasnain & Ors. Vs. Jagram Meena & Ors. bearing MAC. APP. No. 152/2014, decided on 24.03.2014, wherein it held as under: "21. The maximum value of the multiplier is fixed at 18, which is fairly representing the purchasing capacity of a victim in a stable economy. In the ascertainment of purchasing capacity of the victim, the age of the claimant has no relevance because of the fact that it has no nexus with the assessment of the loss of dependency.
22. Moreover, subsequent to the introduction of Section 163A and the Second Schedule of the Act, the Apex Court in Trilok Chandra, introduced a structural change by increasing the numerical value of multiplier from 16 to 18, whereas it had been fixed at 16 as per Susamma Thomas. Specifically, there was no variation in respect of fundamental premise of "multiplier method‟ as held in Susamma Suit no.311/14 Shahin Saiyeda & Ors. v Mohd. Aadil & Ors. Page no. 25 of 38 Thomas. In Trilok Chandra, the Apex Court has taken the second schedule as a guiding factor.
23. Significantly, the Apex Court in the case of Reshma Kumari and M. Nag Pal has followed the age of the victim as a factor for selecting the multiplier. Specifically, in the selection of multiplier for the age group up to ‟15‟ the Apex Court never considered the age of the claimants as a relevant factor. Therefore, this court finds no reason to adopt a different formula for the victim who is above "15‟ years of age, whereas the relevant factors have been adopted by the Apex Court such as (i) age of the deceased (ii) income of the deceased and (iii) number of dependents. The Apex Court, while formulating the relevant factors for the assessment of loss of dependency, the age of the claimants was never considered as a factor. Finally, in the assessment of dependency, the courts / tribunals are computing the purchasing capacity of the deceased; not the claimants. Therefore, I am of the considered opinion that the age of the victim is the proper factor for selecting the correct multiplier."
This ratio has further been applied by the Hon'ble High Court of Delhi in MAC.APP. 1227/2012 NEW INDIA ASSURANCE CO LTD. V. S.SHAMIM FATIMA & ORS decided on 1.4.2014. Thus the multiplier applicable in the instant case would be of 18.
25. Since the deceased was unmarried there would be 50% deduction towards personal and living expenses. As regards the future prospects in Rajesh and Ors. v Rajbir Singh and Ors. 2013 (6) SCALE 563 the Hon'ble Supreme Court held as under:
Suit no.311/14
Shahin Saiyeda & Ors. v Mohd. Aadil & Ors. Page no. 26 of 38 "11. Since, the Court in Santosh Devi's case (supra) actually intended to follow the principle in the case of salaried persons as laid in Sarla Verma's case (supra) and to make it applicable also to the self employed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30% always; it will also have a reference to the age. In other words, in the case of selfemployed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an addition of 50% to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any. Addition should be 30% in case the deceased was in the age group of 40 to 50 years."
12.In Sarla Verma's case (supra), it has been stated that in the case of those above 50 years, there shall be no addition. Having regard to the fact that in the case of those selfemployed or on fixed wages, where there is normally no age of superannuation, we are of the view that it will only be just and equitable to provide an addition of 15% in the case where the victim is between the age group of 50 to 60 years so as to make the compensation just, equitable, fair and reasonable. There shall normally be no addition thereafter."
As such the petitioners would be entitled to addition of 50% of the income towards future prospects.
Accordingly the loss of dependency as per the monthly income i.e. Rs. 25,000/ is calculated as under :
Rs.25,000/ + Rs.12,500 (50% future prospects) = Rs.37,500/ - Rs.18,750/ (i.e. 50% towards personal expenses) = Rs.18,750/ X 12 (annually) X 18 Suit no.311/14 Shahin Saiyeda & Ors. v Mohd. Aadil & Ors. Page no. 27 of 38 (multiplier) = Rs.40,50,000/.
26. The petitioners are also entitled to compensation for loss of love and affection, loss of estate and funeral expenses. During crossexamination by the learned counsel for the insurance company PW1 denied the suggestion that he had not spent Rs.50,000/ on transportation and last rites etc. However there is nothing to show the same.
The total compensation is determined as under:
Loss of dependency : Rs.40,50,000/
Love and affection : Rs.50,000/
Loss of Estate : Rs.10,000/
Funeral expenses : Rs.10,000/
Total : Rs.41,20,000/
Thus, the total compensation would amount to Rs.41,20,000/. RELIEF
27. The petitioners are awarded a sum of Rs.41,20,000/ (Rs.Forty One Lacs Twenty Thousand only) with interest at the rate of 9% 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 Suit no.311/14 Shahin Saiyeda & Ors. v Mohd. Aadil & Ors. Page no. 28 of 38 respondents. The petitioner No.1 Shahin Saiyeda would be entitled to 80% share in the awarded amount and the petitioner No.2 Sayed Ghaffar Ali would be entitled to 20% share in the awarded amount.
28. For safeguarding the compensation amount from being frittered away by the claimants, directions have been given by Hon'ble Supreme Court for 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) The entire share of the petitioner No.2 be transferred into his savings account in UCO Bank, Patiala House Court, New Delhi and 50% of his share be kept in FDR for a period of 3 years and 50% of his share be released to him. 20% of the share of the petitioner No.1 be released to her by transferring it into her savings account and remaining amount out of her 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. Suit no.311/14 Shahin Saiyeda & Ors. v Mohd. Aadil & Ors. Page no. 29 of 38
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.1 and 2 are directed to deposit the amount directly by way of crossed cheque 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 Shahin Saiyeda and Sayed Ghaffar Ali within 30 days of the passing of the award.
c) Cheque be deposited within thirty days herefrom under intimation to the petitioners. In case of default, the respondents No.1 and 2 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 petitioner No.1.
f) The withdrawal from the aforesaid account shall be permitted to the petitioner No.1 after due verification and the bank shall issue photo identity card to the petitioner No.1 to facilitate her identity.
Suit no.311/14 Shahin Saiyeda & Ors. v Mohd. Aadil & Ors. Page no. 30 of 38
g) No cheque book shall be issued to the petitioner No.1 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 book shall be given to the petitioner No.1 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.
i) The original fixed deposit receipts shall be handed over to the petitioner No.1 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.
Suit no.311/14 Shahin Saiyeda & Ors. v Mohd. Aadil & Ors. Page no. 31 of 38
29. 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. APPORTIONMENT OF LIABILITY:
30. The respondent No.1 is the driver and the respondent No.2 is the owner of the offending vehicle and the respondent No.3 is the insurer in respect of the offending vehicle. It is the case of the respondent No.3 that the vehicle No.HR27C4274 as mentioned in the petition was not insured with the respondent No.3 in the name of the respondent No.2 Shri Jafruddin on the date of the accident. It was averred that the cover note No.MC1001370399 allegedly showing the insurance in respect of vehicle No.HR27C4274 in the name of respondent No.2 for the period 05.05.2011 to 04.05.2012, was a false and fabricated document produced by the respondent No.2/ petitioners. It was averred that certain cover notes were lost when the same were in the custody of the person concerned and accordingly a public notice in that regard was issued in the newspaper and a report was also lodged with the police station Suit no.311/14 Shahin Saiyeda & Ors. v Mohd. Aadil & Ors. Page no. 32 of 38 Ranjit Nagar, vide NCR No.933/2011 dated 19.09.2011 on account of the loss of cover note book from the possession of the person concerned. It was averred that the newspaper publication was issued prior to the date of accident. It was stated that since the vehicle was not insured in favour of the respondent No.2 vide the said cover note, the respondent No.3 had no liability to indemnify the respondent No.2 or to pay any amount of compensation to the petitioners. The respondent No.3 had produced R3W1 in the witness box who deposed that the vehicle No.HR27C4274 was never insured with the respondent No.3 in the name of the respondent No.2 Shri Jafruddin. He stated that a false and fabricated cover note No.MC1001370399 allegedly showing that the vehicle No.HR27C4274 was insured in the name of the respondent No.2 Shri Jafruddin for the period 05.05.2011 to 04.05.2012 with the respondent No.3 insurance company had been filed on record. He stated that as per the record of the respondent No.3, a cover note book bearing No.A237040 containing the cover note leaf bearing SI. No.MC1001370392 to MC1001370400 was misplaced from the custody of the agent of the insurance company i.e. M/s S.L.K. Marketing Pvt. Ltd. 26/18, Ground Floor, East Patel Nagar, New Delhi 110008 from the area of East Patel Nagar on 19.09.2011 and inspite of best efforts made by the said persons, the book containing the cover notes was not traceable. On account of the misplacing of the said cover note book containing the cover note No.MC1001370399, a noncognizable report No.933/2011 dated 19.09.2011 was duly registered at police station Ranjit Nagar, Delhi. He stated that an indemnity bond was also issued by the Suit no.311/14 Shahin Saiyeda & Ors. v Mohd. Aadil & Ors. Page no. 33 of 38 agent M/s SLK Marketing Pvt. Ltd. from whose custody the cover note books were lost, in favour of the respondent No.3 insurance company. He stated that a public notice with respect to the loss of cover note book containing the cover note No.MC1001370399 was also got published by the respondent No.3 in the daily newspaper Amar Ujala on 07.01.2013 thereby informing the public at large regarding the loss of the said cover note. He stated that the cover note in dispute i.e. MC1001370399 allegedly showing the insurance in respect of vehicle No.HR27C7274 was one of the lost cover notes and had been filed on the court record in order to show that the vehicle in question was insured with the respondent No.3 insurance company. He stated that in fact, the respondent No.3 insurance company had never received any premium for the vehicle No.HR27C4274 for the period covering the date of accident or otherwise. He stated that since the vehicle No.HR27C4274 was not insured with the respondent No.3 in the name of the respondent No.2, the respondent No.3 was not liable to indemnify the respondent No.2 or to pay any amount of compensation to the petitioners. Copy of FIR bearing No.NCR933/11 dated 19.09.2011 is Ex.R3W1/1, copy of indemnity bond dated 10.10.2011 is Ex.R3W1/2, copy of the newspaper Amar Ujala is Ex.R3W1/3 and copy of the cover note is Ex.R2W1/2. He was not crossexamined on behalf of the petitioners and the respondents No.1 and 2. Thus as per the case of the respondent No.3 the cover note produced by the respondent No.2 was one of the cover notes which had been misplaced and in respect of which a complaint had been registered with the police on 19.9.2011.
Suit no.311/14 Shahin Saiyeda & Ors. v Mohd. Aadil & Ors. Page no. 34 of 38
31. The respondent No.2 on the other hand had contended that his vehicle was duly insured with the respondent No.3 and as such he was not liable to pay any compensation. He had also entered into the witness box as R2W1 and deposed that at the time of the accident the respondent No.1 was having valid DL and R2W1 had RC and other documents. He stated that the vehicle was fully insured at the time of the accident with respondent No.3 i.e. M/s Bajaj Allianz General Insurance Co. Ltd. therefore if any liability arose then the insurance company was fully liable to pay the compensation to the petitioners, and the insurance company was only liable to pay the compensation as per rules and manner, because he had valid insurance policy of his said vehicle, therefore the insurance company was fully liable to pay the compensation. Copy of RC is Ex.R2W1/1, copy of insurance policy is Ex.R2W1/2 and copy of DL is Ex.R2W1/3. He was not crossexamined on behalf of the petitioners. During crossexamination by the learned counsel for the insurance company R2W1 stated that he is the registered owner of motorcycle bearing No.HR27C4374. He had purchased the said motorcycle from the company. He stated that mostly he was using the motorcycle but sometimes it used to be parked at his house. He stated that the original RC is deposited in the Court. He stated that he had got the vehicle insured. The insurance was got done by the brother of Zuber who was a driver with him. He admitted that he had not himself gone to get the insurance done. He stated that he had given around Rs.1150/ for getting the insurance done. He had given the money to Zuber for the said purpose. He stated that apart from Ex.R2W1/2 he did not have any Suit no.311/14 Shahin Saiyeda & Ors. v Mohd. Aadil & Ors. Page no. 35 of 38 other document regarding insurance. He stated that he had signed some document to get the insurance done. He had only signed on Ex.R2W1/2 at point A. He stated that when he signed Ex.R2W1/2 the same was filled up. He stated that after taking his signatures, Ex.R2W1/2 was handed over to him. He denied the suggestion that blank cover notes were lost by the company and by misusing the same, he got Ex.R2W1/2 or that the same was forged and fabricated document or that he had not paid any premium to get the policy. He stated that the insurance was obtained from an office near Gurgaon Bus Stand. He had not been inside the building volunteered he was standing down stairs. He stated that the board of Bajaj Allianz was put up there. He could not say, if the said board was still there.
32. R2W1 was thus extensively crossexamined on obtaining the cover note and he stated that he had got the vehicle insured. He stated that insurance was got done by the brother of Zuber who was a driver with him. It is pertinent that R2W1 admitted that he had not himself gone to get the insurance done. He stated that he had given around Rs.1150/ for getting the insurance done and he had given the money to Zuber for the said purpose. However Zuber has not been produced in the witness box. He stated that apart from Ex.R2W1/2 he did not have any other document regarding insurance. It is significant that even Ex.R2W1/2 mentions that if the person does not receive the policy contract within 30 days he should contact the office but in the instant case there is nothing to show that any policy was actually Suit no.311/14 Shahin Saiyeda & Ors. v Mohd. Aadil & Ors. Page no. 36 of 38 received by the respondent No.2 and he had stated that he did not have any other document regarding insurance. He stated that he had signed some document to get the insurance done and he had only signed on Ex.R2W1/2 at point A. He stated that when he signed Ex.R2W1/2 the same was filled up. He stated that after taking his signatures, Ex.R2W1/2 was handed over to him. It is also pertinent that R2W1 stated that the insurance was obtained from an office near Gurgaon Bus Stand though he had not been inside the building and volunteered that he was standing down stairs. He stated that the board of Bajaj Allianz was put up there. However as per the case of the respondent No. 3 the cover note book containing the cover note in question had been lost by the agent who had the office at Patel Nagar and the indemnity bond given by the agent has also been placed on record.
33. It is true that in the instant case the cover note in question is dated prior to when it was reportedly misplaced but there is nothing to substantiate that it was actually issued on the date of issue mentioned in the cover note. Further the public notice was issued by the respondent No.3 in the newspaper after the accident in question. However it cannot be disputed that the complaint was lodged with the police much prior to the accident in question. There is also nothing to show that any insurance policy was issued subsequently. It is also significant that the charge sheet was also filed for the offences under Sections 181/146/196 MV Act. In these circumstances the respondent No.3 would be absolved of any liability and the respondents No.1 and 2 would be jointly and Suit no.311/14 Shahin Saiyeda & Ors. v Mohd. Aadil & Ors. Page no. 37 of 38 severally liable to pay the compensation. The respondents No.1 and 2 being the driver and owner are directed to deposit the award amount within 30 days with interest at the rate of 9% from the date of filing of the claim petition till its realization. The respondents No.1 and 2 shall deposit the award amount directly in the bank account of the claimants at UCO Bank, Patiala House Court, New Delhi within 30 days of the passing of the award failing which they are liable to pay interest at the rate of 12% per annum for the period of delay.
34. Nazir to report in case the cheque is 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.1 and 2 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 21.02.2015.
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 22th day of November, 2014 (GEETANJLI GOEL)
PO: MACT2
New Delhi
Suit no.311/14
Shahin Saiyeda & Ors. v Mohd. Aadil & Ors. Page no. 38 of 38