Delhi District Court
Sonu @ Bhim S/O Sh.Sant Lal vs Sh. Gurcharan Singh Sandhu on 21 October, 2016
IN THE COURT OF SH. RAJ PAUL SINGH TEJI:
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNAL :
(WEST-01):DELHI
Old Suit No. 153/15
New MACT Case No. 476830/16
Sonu @ Bhim s/o Sh.Sant Lal
R/o H. No. B-875, Shiv Vihar, J.J. Colony
Vikas Nagar, Uttam Nagar, New Delhi-110059
.......Petitioner
VERSUS
1. Sh. Gurcharan Singh Sandhu
s/o Sh. Pritam Singh Sandhu
R/o WZ-109, T. F. Ram Nagar,
Tilak Nagar, New Delhi-110018 (Driver)
2. Smt. Harvinder Kaur w/o Sh. Nirmal Singh
A-12, Type-III, Safdarjung Hospital,
Staff Quarters, Kidwai Nagar West, New Delhi-110023 ( Regd. Owner)
3. National Insurnace Co. Ltd
808-809, Kailash Building, K. G. Marg,
New Delhi -110001 ( insurance company)
......... Respondents
Date of Institution: 06/07/2015 ( DAR) Date of reserving order/judgment: 03/09/2016 Date of pronouncement : 21/10/2016 AWARD Old Suit No. 153/15 New MACT Case No. 476830/16 Page No. 1/17
INFORMATION IN TERMS OF PROVISIONS OF THE MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE (MCTAP) 1 Date of Accident 18/03/2015 2 Date of intimation of the accident by the Not provided by the IO Investigation Officer to the Claims Tribunal (Clasuse2) 3 Date of of intimation of the accident by the Not mentioned Investigation Officer to the Insurance Company (Clause2) 4 Date of filing of the Report under section 173 Cr. Note mentioned PC before the Metropolitan Magistrate(Clause 10) 5 Date of filing of Detailed Accident Information 06/07/201 Report(DAR) by the Investigation Officer before Claims Tribunal (Clause) 6 Date of service of DAR on the Insurance 03/07/2015 Company (clause11) 7 Date of service of DAR on the claimant(s) 06/07/2015 (Clause11) 8 Whether DAR was complete in all respects? Yes.
( Clause11) 9 If not state deficiencies in the DAR N/A 10 Whether the police has verified the documents Yes filed with DAR? (clause4) 11 Whether there was any delay or deficiency on the There was delay in filing part of the Investigation Officer? If so, whether DAR as documents were any action/ direction warranted? verified by the IO.
12 Date of appointment of the Designated Officer by Defences were taken by the
the Insurance Company insurance company
13 Name , address and contact number of the Not mentioned
Designated Officer of the Insurance
Company(Clause 19)
14 Whether the Designated officer of the insurance No
Company submitted his report within 30 days of
the DAR?(Clause 21)
15 Whether the Insurance Company admitted the No.
liability? If so, whether the Designated Officer of Old Suit No. 153/15 New MACT Case No. 476830/16 Page No. 2/17 the Insurance Company fairly computed the compensation in accordance with law. (Clause22) 16 Whether there was any delay or deficiency on the No. part of the Designated officer of the Insurance Company? If so whether any action/ direction warranted?
17 Date of response of the claimant(s) to the offer of No legal offer was filed by the Insurance Company? (Clause 23) the insurer as defence was taken by the insurer in this case.
18 Date of Award 21102016 19 Whether the award was passed with the consent Yes of the parties? (Clause 22) 20 Whether the claimants(s) examined at the time of Yes.
passing of the award to ascertain his/ their financial condition? (Clause 26) 21 Whether the photographs, specimen signatures, Yes proof of residence and particulars of bank account of the injured/ legal heirs of the deceased taken at the time of passing of the award? (Clause26) 22 Mode of disbursement of the award amount to the Mentioned in award claimant(s) (Clause 28) 23 Next Date of compliance of the award(Clause30) 22122016.
1. This Judgment-cum-Award shall decide the petition under Section 166 and 140 of Motor Vehicle Act 1988 as amended up to date (hereinafter referred as 'Act') filed by petitioner for grant of compensation for the injuries suffered by him in the road vehicular accident.
2. Brief facts of the case of petitioner are that on 18/03/2015 at about 10.50 P.M, the petitioner was going on his motor cycle bearing no. DL-4S-CF- 8418. It is further alleged that when he reached at Main Road Uttam Nagar, Shiv Vihar Nala, Uttam Nagar, a car bearing no. DL -3C-BB-3840 which was being driven by its driver/ respondent No.1 in rash and negligent manner hit the motorcycle of petitioner. Resultantly, the petitioner fell down and sustained grievous injuries. In total, the petitioner has claimed Rs. 80,00,000/- as compensation on account of the injuries sustained by injured in the accident.
Old Suit No. 153/15 New MACT Case No. 476830/16 Page No. 3/173. Written statement has been filed by the respondents no. 1 & 2 wherein they have categorically denied the rash and negligent aspect and also denied the contents of the petition.
4. Written statement has been filed by respondent no.3/ insurance company wherein it was admitted that the offending vehicle was insured with it as on the date and time of accident but denied the other contents of the petition. The insurance company has taken the defence that the driver was not holding a the valid and effective license as on the date of accident. The insurance company has further taken the defence that driver of the offending vehicle was under the influence of liquor.
5. On the pleadings of the parties following issues were framed by this Tribunal on 02/12/2015.
1.Whether the injured/ petitioner suffered injuries in an accident that took place on 18.03.2015 at about 10.50 P.M, due to rash and negligent driving of respondent No.1 of the vehicle No. DL-3C-BB-3840, owned by respondent No.2 and insured with respondent No.3? OPP
2. Whether the petitioner is entitled to any compensation, if so, to what amount and from whom?
3. Relief.
6. In order to establish its claim, the petitioner has examined himself as PW-1. The petitioner has also examined Dr. Navneet Rustagi as PW-2 to prove as to disability. He has also examined PW-3 Mr. Gaurav Saingar, Sr. Prothetis & Bvranch Manager, Endolite India Lited, Office at A-4, Naraina Industrial Area Phase-1, New Delhi to prove the future treatment / expenditure on the artificial limb as PW-3.
7. The respondents No.1 has examined himself as R1W1 in his defence.
8. The respondent No.2 has examined himself as R2W1 in his defence.
Old Suit No. 153/15 New MACT Case No. 476830/16 Page No. 4/179. The respondent No. 3 / insurance company has examined its investigator as R3W1 & Mr. Vineet Kumar, the officer of insurer as R3W2.
10. Ld. Counsel for petitioner has relied upon the judgments in Zahid Khan Vs. Arun Mandal reported in III (2016) ACC 179(Del.); IFFCO TOKIO General Insurnace Co. Ltd. Vs. Halesh & Anr, reported in III(2016) ACC 193 (Kar);.
11. I have thoroughly gone through the testimony of the witnesses and perused the record. I have also given thoughtful consideration to the arguments addressed by learned counsel for the petitioner and the learned counsel for the respondent No. 3 / insurance company. I have also gone through the written arguments filed by the respondent No.1 & 2 on record. I have also gone through judgments relied upon by the petitioner.
My findings on various issues are as under :-
ISSUE NO. 112. The present petition has been filed by the petitioner u/s 166 & 140 M. V. Act and the onus is upon the petitioner to prove the rash and negligent act of the respondent No.1.
13. The petitioner examined himself as PW-1 who has well explained the mode and manner of accident. He has deposed that as on the date of accident he was going on his motor cycle bearing no. DL-4S-CF-8418 and when he reached at Main Road Uttam Nagar, Shiv Vihar Nala, Uttam Nagar, a car bearing no. DL -3C-BB-3840 which was being driven by its driver/ respondent No.1 in rash and negligent manner hit his motorcycle. Resultantly, he fell down and sustained grievous injuries. He has proved the original discharge summary and bills vide Ex.PW1/1 (colly.). He has proved his ID proof i.e. Votor I Card vide Ex.PW1/2. He has also relied upon the DAR vide Ex.PW1/3(colly.) He has also proved the 33 original bills vide bill summary Ex.PW1/4(colly.). He has also proved the bill summary to the tune of Rs. 19,913/- vide Mark P1X1. The cross-
Old Suit No. 153/15 New MACT Case No. 476830/16 Page No. 5/17examination carried on by the respondents No.1 & 2 as well as respondent No.3 are not suggestive of anything which may discard the claim of the petitioner nor the driver of the offending vehicle was not rash and negligent at the time of accident.
14. In the present case, the police have filed the Detail Accident Report (DAR) on record pertaining to FIR No. 407/15; P. S. Uttam Nagar u/s 279/338/427 IPC.
15. On the aspect of negligence, I am being guided by the judgment of Hon'ble High Court of Delhi in 2009 ACJ 287, National Insurance Company Limited Vs. Pushpa Rana wherein in the Hon'ble High Court held that in case the petitioner files the certified copy of the criminal record showing the completion of the investigation by the police or the issuance of charge sheet under section 279/304 A IPC or the certified copy of the FIR or in addition the recovery memo on the mechanical inspection report of the offending vehicle, these documents are sufficient proof to reach to the conclusion that the driver was negligent.
It was further held that the proceedings under the Motor Vehicles Act are not akin to the proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard.
Further, in Kaushnumma Beum and others v/s New India Assurance Company Limited, 2001 ACJ 421 SC the issue of wrongful act or omission on the part of driver of the motor vehicle involved in the accident has been left to a secondary importance and mere use or involvement of motor vehicle in causing bodily injuries or death to a human being or damage to property would made the petition maintainable under section 166 and 140 of the Act.
It is also settled law that the rashness and negligence has to be construed lightly while making a decision on a petition for claim for the same as compared to the word rashness and negligence as finds mention in the Indian Penal Code. This is because the chapter in the Motor Vehicle Act dealing with compensation is a benevolent legislation and not a penal one.
Old Suit No. 153/15 New MACT Case No. 476830/16 Page No. 6/17Further the Hon'ble High of Delhi in MAC App. No.200/2012 in case titled as United India Insurance Co. Ltd. Vd. Smt. Rinki @ Rinku & Ors decided on 23/07/2012 had held as under:
"The Claims Tribunal was conscious of the fact that negligence is a sine qua non to a Petition under Section 166 of the Motor Vehicles Act, 1988(the Act). It is also true that the proceedings for grant of compensation under the Act are neither governed by the criminal procedures nor are a civil suit. A reference may be made to a judgment of the Supreme Court Bimla Devi and Ors. V Himachal Road Transport Corporation and Ors, (2009) 13 SC 530 where it was held as under:
"15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of any accident caused by a particular bus in a particular manner may not be possible to be done by the claimant. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied."
In the light of the law discussed above and after going through all the documents i.e. final report u/s 173 Cr.PC filed against the driver of the offending vehicle/R1; mechanical inspection report of both the involved vehicles in the accident; copy of rukka, FIR & DD Entry; MLC of injured; MLC of driver; site plan; seizure memo of the both the vehicles; seizure memo of RC and its verification; seizure memo of DL and its verification; MLC of injured; ; site plan; MLC of the petitioner; mechanical inspection report of both the vehicles involved in the accident; seizure memo of the vehicles filed by the police in DAR as well as documents filed by the petitioner, as a whole, it is clear that respondent no. 1 was driving the offending vehicle bearing No. DL -3CBB- 3840 in rash and negligent manner and caused grievous injuries to the petitioner.
The issue No:1 ,therefore, stands decided in favour of the petitioner and against the respondent No. 1.
Old Suit No. 153/15 New MACT Case No. 476830/16 Page No. 7/17 ISSUE NO. 216. Nature of injuries and reimbursement of medical bills The entire treatment record more particularly the the discharge summary issued by Dr. Ram Manohar Lohia w.e.f 19/03/2015 to 27/04/2015 vide Ex.PW1/1 suggests that the petitioner has sustained injury i.e.Traumatic Amputation Right Knee; Ulnar Nerve Palsy with stiffness right wrist. He was again admitted and discharged w.e.f. 01/06/2015 to 04/06/2015 which also suggests that petitioner has also sustained Ulnar Nerve Palsy Right. Petitioner has proved the original discharge summary and bills vide Ex.PW1/1. He has also proved the bills vide Ex.PW1/4(colly.). He has also proved the bill summary vide mark P1X1 to the tune of Rs. 19,913/-. The petitioners have filed the bills to the tune of Rs. 19,913/-. The respondents have not filed the bills on record. Hence, the petitioner is entitled the compensation to the tune of Rs. 19,913/- towards medical bills.
17. Compensation towards artificial limb In order to prove the estimate of artificial limb, he has examined Mr Gaurav Saingar as PW-3. He has deposed that he has examined injured on 24/02/2016 for artificial limb. After examination of the injured, he has issued Quatation for Endolite Trans Femoral System. He has proved the said Quotation letter dated 24/02/2016 which suggests the costs of Rs. 3,41,800/- vide Ex.PW3/3. He has further deposed that average life of the said artificial limb is about 5-6 years. Considering the testimony of PW-3 , I hereby grant compensation of Rs. 3,41,800/- towards artificial limb. 18 . Pain & sufferings It is settled law that a particular amount can not be fixed on pain and sufferings for all cases as is varies from case to case. Judicial notice can be taken on the fact that since the petitioner had got injuries/fracture as aforesaid, he might have suffered acute pain and sufferings owing to the said injuries. He might have also consumed heavy dose of anti-biotic etc. and also might have Old Suit No. 153/15 New MACT Case No. 476830/16 Page No. 8/17 remained without movements of his body for a considerable period of time. In order to ascertain the pain and sufferings compensation, I am guided by the judgment of Hon'ble High Court of Delhi in case Satya Narain v/s Jai Kishan , FAO No: 709/02, date of decision: 2.2.2007, Delhi High Court by Hon'ble Mr. Justice Pradeep Nandrajog wherein it was held that:-
"On account of pain and suffering, suffice would it be to note that it is difficult to measure pain and suffering in terms of a money value. However, compensation which has to be paid must bear some objectives co-relation with the pain and suffering. The objective facts relatable to pain and suffering would be:
(a) Nature of injury.
(b) Body part affected.
© Duration of the treatment."
Keeping in view the said guidelines; in view the aforesaid observation made by this court; nature of injuries, I hereby allow Rs. 1,00,000/- towards pain and sufferings.
19. Compensation for conveyance & special diet Though there is no cogent evidence on record for the money spent by the petitioner for conveyance, yet considering the nature of injuries suffered by the petitioner, his treatment papers on record and the material placed, I am of the opinion that petitioner must have spent some sum under this head. Petitioner is accordingly entitled for sum of Rs. 30,000/- for expenses incurred on special diet.
20. Compensation for attendance charges Though there is no cogent evidence on record for the money spent by the petitioner on attendant charges, yet considering the nature of injuries suffered by the petitioner and his condition later to the occurrence, elicited above, I am of the considered opinion that petitioner must have spent some sum under this head. Petitioner is accordingly entitled for sum of Rs. 30,000/- for expenses incurred on attendant charges.
Old Suit No. 153/15 New MACT Case No. 476830/16 Page No. 9/1721. Loss of income during treatment period The petitioner has proved the age proof documents i.e cpy of Driving License as PW1/5 which suggests his date of birth as 08/04/1987. The date of accident is 18/03/2015. Accordingly, the petitioner was about 29 years on the date of accident.
22. The petitioner is stated to be doing private service and was stated to be earning Rs. 16,000/- per month. The petitioner has neither filed any income proof nor proved the same on record. The petitioner has also not proved his education qualification on record. In the absence of proving of income and facts and circumstances of the case, the income of the deceased can very well be assessed on the basis of the chart available in the Minimum Wages Act. The date of accident was 18/03/2015 on which the minimum wages for an unskilled person were Rs. 8632/- . Considering the facts and circumstances and nature of injuries as elicited above, it appears to me that petitioner could not have worked for about 6 months. Accordingly, I award Rs. 51,792/-(Rs. 8632/- x 6 ) towards loss of income during treatment period.
23. Compensation on account of disability In order to prove the permanent disability certificate, the petitioner has examined PW-2 Dr. Navneet Rustagi who has proved the disability certificate, Ex. PW2/1. As per the permanent physical disability certificate Ex. PW2/1, the petitioner has got 83% permanent physical disability in relation to his right upper and lower limb. The said disability certificate also suggests that it is a case of right above knee amputation with stiffness right wrist with right ulnar nerve palsy.
24. It is now the settled law that it is the percentage of functional disability arising out of physical disability which matters while assessing the compensation arising out of disability. On this aspect, I gain support from judgment of Hon'ble Supreme Court in "Raj Kumar Vs. Ajay Kumar & Ors, reported as 2011 ACJ" I in which it was held as under:-
Old Suit No. 153/15 New MACT Case No. 476830/16 Page No. 10/17"Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss,that is, percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent ( percentage ) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent ( percentage) of loss of earning capacity to the extent percentage of permanent disability will result in award of either too low or too high a compensation. What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terns of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment , the Tribunal may find that percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation(See for example, the decisions of this court in Arvind Kumar Mishra V New India Assurance Co. Ltd.-2010(10) SCALE 298 and Yadava Kumar V. DM., National Insurance Co. Ltd. -2010(8) SCLE 567)"
25. The petitioner mentioned in his petition that he was doing private service at the time of accident. It appears me from overall circumstances 83% permanent physical disability in relation to his right upper and lower limb and right above knee amputation with stiffness right wrist with right ulnar nerve palsy shall affect to the extent of 60% towards his working capacity.
26. Ld. Counsel for petitioner requested for balancing the income of the victim on the basis of inflation trends and requested that 50% increase be made in the income of the victim on the basis of judgment of Hon'ble Supreme Court of India in "Rajesh & Ors. Vs. Rajbir Singh & Ors 2013(6) Scale 563 . On this aspect, Old Suit No. 153/15 New MACT Case No. 476830/16 Page No. 11/17 I am being guided by the judgment of Hon'ble High Court of Delhi in 'Taslim Parvin & Anr Vs. Jugendra Singh & Ors' in MAC. APP No.88/16 & CM No. 3172/2016 decided on 29/01/2016 by Hon'ble Mr. Justice R.K. Gauba wherein it has been held as under:
"5. The law is well settled that in case of compensation on account of death, loss of dependency is to be computed by adopting the multiplier having regard to the age of the deceased or the claim whichever is higher[ U.P. State Road Transport Corporation and Ors vs. Trilok Chandra and Ors, (1996) 4 SCC 362 and General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Mrs. Susamma Thomas & ors,(1994) 2SCC 176]
6. In the case reported as Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr, (2009) 6SCC 121, Supreme Court, inter-alia, ruled that the element of future prospects of increase in income will not be granted in cases where the deceased was " self employed" or was working on a "fixed salary". Though this view as affirmed by a bench of three Hon'ble Judges in Reshma Kumari & Ors Vs. Madan Mohan & Anr, (2013) 9SCC 65, on account of divergence of views, as arising from the ruling in Rajesh & Ors vs. Rajbir & Ors, (2013)9 SCC 54 the issue was later referred to a larger bench, inter alia by order dated 02/07/2014 in National Insurance Company Ltd. Vs. Pushpa & ors, (2015) 9 SCC 166.
7. Against the above back drop by judgment dated 22/01/2016 passed in MAC Appeal No. 956/2012(Sunil Kumar Vs. Pyar Mohd. ), the court has found it proper to follow the view taken earlier by a learned single judge in MAC Apeal no. 189/2014 (HDFC Ergo General Insurance Co. ltd. v. Smt. Lalta Devi & ors) decided on 12.01.2015, presently taking the decision in Reshma Kumari (supra) as the binding precedent, till such time the law on the subject of future prospects for those who are " self -employed" or engaged in gainful employment at a " fixed- salary" is clarified by a larger bench of the Supreme Court"
After going through the facts and circumstances of the present case and the aforesaid case laws laid down, I am not inclined to grant future prospects on the income of the petitioner in this case.
27. Accordingly the petitioner was about 29 years of age as on the date of accident for which the relevant multiplier '17' ( for the age group of 26 to 30 years) as mentioned in Sarla Verma (supra). Therefore, the total loss of earning capacity comes out to be Rs. 10,56,556.8 p. rounded off to Rs. 10,56,557/- = Old Suit No. 153/15 New MACT Case No. 476830/16 Page No. 12/17 ( Rs. 8632- x 12 x 17x 60 / 100).
Compensation towards loss of amenities of life.
28. Considering the facts and circumstances of the present facts; the nature of injuries suffered by the petitioner as elicited above, I hereby grant compensation of Rs. 1,00,000/- towards for loss of amenities of life. Compensation towards disfigurement
29. Considering the facts and circumstances of the present facts; the nature of injuries suffered by the petitioner as elicited above, I hereby grant compensation Rs. 1,00,000/- towards disfigurement and marriage prospects. Compensation towards for inconvenience, hardship discomfort, disappointment , frustration and mental stress of life .
30. Considering the facts and circumstances of the present facts; the nature of injuries suffered by the petitioner as elicited above, I hereby grant compensation Rs. 1,00,000/- towards inconvenience, hardship discomfort, disappointment, frustration and mental stress of life.
In the circumstances of the case, I award him the compensation as tabulated hereunder:-
SL No. Heads of Compensation Amount
1. Reimbursement of medical expenses Rs. 19,913/-
2. Compensation towards artificial limb Rs. 3,41,800/-
3. Pain and Suffering Rs. 1,00,000/-
4. Conveyance & special diet Rs. 30,000/-
5. Attendant charges Rs. 30,000/-
6. Lose of Income during treatment period Rs. 51,792/-
7. Lose of disability Rs. 10,56,557/-
8. Loss of amenities of life Rs. 1,00,000/-
9. Loss of disfigurement Rs. 1,00,000/-
10. For inconvenience, hardship, discomfort, disappointment, Rs. 1,00,000/-
frustration and mental stress in life
Total Rs. 19,30,062/-
Old Suit No. 153/15
New MACT Case No. 476830/16 Page No. 13/17
R E L I E F:
31. I award Rs. 19,30,062/- (Rupees Nineteen Lacs Thirty Thousand Sixty Two Only) as compensation with interest at the rate of 9% per annum including interim award, if any from the date of filing the DAR i.e., 06/07/2015 (DAR) till the notice under Order XXI Rule 1 is given by the insurance company, in favour of the petitioner and against the respondents on account of their liability being joint and several.
ALREADY HEARD ON THE FINANCIAL STATUS OF THE CLAIMANTS
32. The injured is about 29 years of age and he requested for release the maximum amount from the award amount.
MODE OF DISBURSEMENT OF THE AWARD AMOUNT TO THE CLAIMANTS
33. Considering the above facts and circumstances, and as per the guidelines issued by Hon'ble Supreme Court of India G.M Kerala State Road Transport Corporation v/s S.Susamma Thomas (1994) 2 SCC 176 in order to avoid the money being frittered away, seventy five percent (75%) of the amount awarded to petitioner shall be kept in 10 FDRs of almost equal amount in a Nationalized Bank for a period of 1,2,3,4; 5;6; 7;8;9;& 10 years. No loan or advance shall be allowed against the said fixed deposit. The Petitioner can withdraw the interest quarterly from FDRs through his father.
34. APPORTIONMENT OF LIABILITY:
The insurer has taken the defence that the driver of the offending vehicle was not holding valid and effective driving license as on the date of accident, hence insurer is not liable to pay the compensation.
So far as, the defence raised by the insurer regarding the fact that the driver of the offending vehicle was under the influence of liquor is concerned, the insurance company has failed to lead any specific evidence on this aspect. Hence, I hereby reject this plea of the insurance company.
35. In order to prove its defence that respondent no.1 was not holding valid and effective driving license as on the date of accident, the insurance Old Suit No. 153/15 New MACT Case No. 476830/16 Page No. 14/17 company has examined its investigator as R3W1 Sh. Gopikant Chaudhary as R3W1 who has proved the verification report of the DL bearing No DL
-0419880122548 of driver of the offending vehicle Sh. Gurcharan Singh Sandhu vide Ex. R3W1/1. The said report suggests that DL has already expired on 10/01/2015 and was not renewed as on the date of accident i.e. 18/03/2015. He has proved the receipt of the Motor Vehicle Authority; extract of expired DL and current DL ( renewed on 20/03/2015) vide Ex. R3W1/2; Ex R3W1/3 and Ex. R3W1/4 respectively.
36. The insurance company has also examined its officer Sh. Vineet Kumar as R3W2 who has proved the attested copy of the Certificate of Insurance of the offending vehicle as Ex. R3W2/1 which suggests that persons or classes who are entitled to drive mentioned at point at A to A on Ex. R3W2/1. He has deposed that respondent No.1 was not possessing valid driving license as on the date of accident.
37. On the contrary, the respondent No.1 has examined himself as R1W1 who has proved the photocopy of DL vide Ex. R1W1. He has also filed the photocopy of the previous DL mark R1W1/X1. During cross-examination by insurance company, he has admitted that his DL was not valid for driving car as the same has expired on 15/01/2015. He has further admitted that he got renewed his DL on 20/03/2015.
38. The respondent No.2 has examined herself who has proved the photocopy of insurance policy of vehicle vide Ex R2W1/2.
39. Ld. Counsel for insurance company has argued that the driver of the offending vehicle was not holding valid and effective driving license and was driving the offending vehicle under the influence of liquor. He has further argued that He further argued that the verified report of the IO in DAR is admissible in evidence without any further proof as per the the judgment / directions given by the Hon'ble High Court in case titled as " Rajesh Tyagi Vs Jasbir Singh". He further argued that there is clear breach of the terms and Old Suit No. 153/15 New MACT Case No. 476830/16 Page No. 15/17 conditions of the policy and the provisions of the M. V. Act.
40. I have heard the counsel for insurer and gone through record placed on record.
41. Considering the testimony of the insurer witnesses as R3W1 and documents produced by him vide Ex R3W1/1 to R3W1/4, it is clear that the driver of the offending vehicle was not holding valid and effective DL as on the date of accident as DL of the driver of the offending vehicle /Respondent No.1 was already expired on 10/01/2015 and was not renewed as on 18/03/2015 and also considering the DAR filed by the IO which is admissible u/s 7 of Motor Vehicles Rules which came into effect on 10/07/2009 for Delhi without formal proof. In these circumstances, the court is of opinion that that insurance company has successfully proved the beach of the terms and conditions of policy, hence, the insurance company is entitled for recovery rights against the driver and owner but only after the disbursement of the award amount in terms of the judgment of the Hon'ble High Court in case of National Insurance Company Ltd Vs Swaran Singh & Ors reported in 2004 A CJ 1.
42. The respondent No: 3 being the insurer, its liability is joint and several with other respondents. Accordingly, respondent No.3 is directed to deposit the award amount in the name of petitioner within a period of 30 days under the intimation to this court. In case of any delay, it shall be liable to pay interest at a rate of 12% per annum for the period of delay.
43. The Hon'ble High Court of Delhi in its latest judgment in MACA 682/05 dated 13.1.2010 'Union of India Vs. Nanisiri' have laid certain guidelines regarding depositing of award amount. In terms of the order of the Hon'ble High Court of Delhi the insurance company shall deposit the award amount in the State Bank of India, Tis Hazari Branch in the name of the petitioner/ petitioners in terms of the award and shall file the compliance report. It is made clear that at the time of the deposit of the award amount with the bank, the insurance company shall specifically mention the suit no. of the case, title of the Old Suit No. 153/15 New MACT Case No. 476830/16 Page No. 16/17 case as well as date of decision with the name of court on the back side of the cheque. The insurance company shall also file the attested copy of the award attested by its own officer to the bank at the time of deposit of the amount with the bank. The copy of this award be given to the insurance company as well as to the petitioner free of cost. The petitioner shall approach the State Bank of India, Tis Hazari Branch for opening the account.
44. The Manager of the Bank is directed to comply the award. The Bank Manager is directed to release the award amount to the petitioner. However, in case the amount is ordered to be kept in the FDR, the said amount should not be released unless the FDR is matured.
45. The parties are at liberty to contact in State Bank of India through its nodal officer Sh. Naresh Kumar Garg, Deputy Manger, Tis Hazari Branch,Delhi (Mb No: 9560191924 and Tel. No. 011-23917910) for their convenience.
File be consigned to Record Room.
A separate file be prepared for compliance report and put up the same on 22/12/2016.
A copy of this award be sent to the concerned Ld. Metropolitan Magistrate as well as DSLSA as per the provisions of the MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE (MCTAP).
Announced in the open court
On of 22nd October 2016 ( RAJ PAUL SINGH TEJI )
Judge, MACT (WEST-01)
Delhi ( 22/10/2016)
Old Suit No. 153/15
New MACT Case No. 476830/16 Page No. 17/17
Old Suit No. 153/15
New MACT Case No. 476830/16
21/10/2016
Present: None
Judgment announced vide separate sheets of even date. File be consigned to Record Room.
A separate file be prepared for compliance report and put up the same on 22/12/2016.
( RAJ PAUL SINGH TEJI ) Judge, MACT (WEST-01) Delhi 21/10/2016 Old Suit No. 153/15 New MACT Case No. 476830/16 Page No. 18/17