Delhi District Court
Mact : Delhi vs Pankaj Mahajan on 3 August, 2007
1
IN THE COURT OF SHRI DILBAG SINGH : PRESIDING OFFICER :
MACT : DELHI
Petition No. : 355/05
Date of filing of Petitions : 7.11.2005
Date of conclusion of final arguments/
Date of reservation of judgment : 20.07.2007.
Date of Award : 03.08.2007.
In re:
SUIT NO. 355/05
1 Smt. Nirmala,
(Widowed mother of the deceased
and wife of late Sh. Satpal Yadav)
2 Meena Yadav
(Daughter of late Sh. Satpal Yadav)
3 Gopal Yadav
(Son of late Sh. Satpal Yadav)
4 Pushkar Yadav( Minor)
(Son of Late Sh. Satpal Yadav)
All residents of:
H.N. 41, Gali No. 10, Main Road,
Libaspur, P.O- Samaipur,
2
New Delhi- 110042.
...............Petitioners
VERSUS
1 Pankaj Mahajan,
R-175, Greater Kailash,
New Delhi- 110048.
2 New India Assurance Co. Ltd.
E-9, 3rd Floor,
Connaught Place,
New Delhi-110001.
...Respondents
JUDGEMENT
1 By this award I shall dispose of a petition U/s 166 and 140 of Motor Vehicle Act 1988 as amended upto date (hereinafter referred to as the Act) wherein compensation of Rs. 10,00,000/- in respect of death of deceased Kamal Yadv and Rs. 2,91,112/- in respect of property damage has been claimed on account of a vehicular accident. 2 Brief facts as made out from the petition and pleadings are:-
On 30.8.2004, deceased Kamal yadav was coming from Pilani to Delhi 3 in car No. DL-8CJ-8479(herein after referred to as 8479) along with his sister Meena, cousin sister Nirja and cousin brother Subhash. Mr. Subhash was driving the vehicle. The deceased was sitting on the front seat behind the driver. When the vehicle reached at village Karak, a Maruti Wagon R bearing no. DL-7CD-2159(herein after referred to as 2159) came from opposite side and collided with the vehicle of the deceased head-on. The driver of Maruti Wagon R was driving it in a zig zag manner, at a high speed and in a rash and negligent manner. Due to impact of collision, vehicle of deceased bearing no. 8479 was pushed into a Khud and rolled over 2/3 times. All the occupants received injuries and deceased succumbed to the injuries and died at the spot.
The car no. 8497 was extensively damaged. Deceased was a young man of 21 years of age and was self employed as a taxi driver. He was earning Rs. 5,000/- per month and was unmarried.
3 Car no. 8479 was owned by Sh. Satpal Yadav, the husband of petitioner no. 1 and father of petitioners no 2,3,& 4. Sh. Satpal Yadav died and petitioners being LRs of Sh. Satpal Yadav become de facto/de jure owners of car. Car no. 8479 of the petitioners was insured with 4 United India Insurance Co. Ltd vide its policy no. 040602/31/03/02227 and claim for damage to the car was lodged on the said insurance company, which was rejected on technical grounds and the petitioners are thus entitled to claim the sum from the owner, driver and insurer of Wagon R car, on account of rash and negligent driving of Wagon R. 4 Notice of the petition was given to the respondents. R-2 appeared on 13.2.2005, whereas R-1 failed to appear and was proceeded exparte by my Ld Predecessor.
5 R-2 in his W.S has taken usual statutory objections vis-a-vis mis-joinder, non-joinder of parties, rashness and negligence of the insured vehicle not being there, driver not having valid D/L and of absconding on that account thereof etc. In para wise reply on merits assertions of the petitioners have been controverted on the lines of preliminary objections. Fact of vehicle being insured vide policy no. 311402/31/3/02167 has been admitted in the name of Sh. Pankaj Mahajan. It has been submitted that two petitions should have been filed by petitioners instead of one.
56 From the pleadings of parties on 19.4.2006 following issues were framed :-
1 Whether deceased Kamal Yadav died due to rash and negligent driving of driver of Maruti Wagon R bearing no DL-7CD-2159 driven by R-1?
2 Whether the claimants are legal heirs of deceased and are entitled for compensation?
3 Whether claimants are entitled for compensation, if so what amount and against whom?
4 Relief.
7 Application u/s 170 M.V act of R-2 was allowed on 31.5.2006.
8 Petitioners in support of their case have examined PW-1 Smt Nirmala Devi, who has proved her affidavit as Ex. PW1/X. She has proved documents as Ex. PW1/1 to Ex. PW1/6. PW-2 Sh. Subhash Chand has testified about the manner in which accident took place. 6 PW-3 Sh. Ashok Kumar, record clerk has proved copy of R.C concerning ownership details vide Ex. PW3/1. PW-4 Sh. Jagdish Lahoti, has produced complete claim file in respect of vehicle no. 8479. This witness proved copy of policy as Ex. PW4/1, surveyor report as Ex. PW4/2 and rejection letter as Ex. PW4/3.
9 Respondents on the other hand have examined R2W1 Sh. Madan Lal Nagar in respect of their case. This witness has proved his affidavit as Ex. R2X/1 and has exhibited documents as Ex. R2W1/1 to R2W1/8.
10 Arguments were heard at the bar. Counsel Sh. R.K. Kohli for claimant and counsel Sh. Yogesh Narula for respondent have been heard at length.
11 Counsel for petitioners has argued in consonance with pleadings of petition. Counsel Sh. Yogesh Narula on the other hand has argued that petitioners have failed to establish rashness and negligence. He has also argued that non arraying of other vehicle 7 entitles the insurance company to avoid 50% of liability. He has also argued that there is breach of terms and conditions of insurance policy as driver has not appeared despite notice u/o 16 R 12 CPC. Counsel Sh. Yogesh Narula has requested for grant of recovery rights against the insured. He has placed his reliance on following judgements:-
(1)Pavitrabai V/s Shankar Singh reported in IV(2005) ACC 138 (DB)(MP).
(2) National Insurance company V/s Amar Chand & Others reported in IV(2005) ACC 674(HP).
(3)United India Insurance Company Ltd & Another V/s Tiruvalluvar Transport Corporation Ltd reported in I(2203) ACC 553(DB) Madras High Court.
(4) Chand Kaur & Others V/s Mohinder Singh & Others reported in II(2001) ACC 284.
(5) Pest Control (India) Pvt. Ltd and another V/s Ramanand Devrao Hattangadi and others reported in I(1990) ACC 439 (DB) Bombay High Court.
(6) New India Assurance Co. Ltd V/s T.M Chayapathi & Another reported in IV(2005) ACC 61 Andhra Pradesh High Court. 8 (7) R.D. Hattangadi V/s M/s Pest Control(India) Pvt. Ltd & Ors reported in I (1995) ACC 281(SC).
12 I have carefully perused the records of the case and considered the submissions. My issue wise findings are as follows: ISSUE NO. 1 13 At the outset, I would like to refer to some precedents, which will facilitate the disposal of this issue. Hon'ble High Court of Rajisthan in State Road Transport Corporation V/s Nand Kishore and Others reported in 2002 ACJ 1564 has observed as follows:-
"5 I have scrutinized and evaluated the evidence on record. The claimants placed on record the first information report Exhs 5 and 6. Undisputedly, the crime report, Exh. 5 of the said accident was lodged promptly with the concerned police station with brief narration as to how accident had taken place. Exh. 9 is prepared by the Station House Officer(SHO), Police Station, Sadari, who investigated the crime case 9 registered in respect of the accident. Though, Exhs. 5, 6 and 9 were tendered in evidence by the claimants without there being any objection raised against the marking or exhibiting documents from the other side. F.I.R, site map and site inspection memo were prepared by the police officer while investigating into the offence disclosed in F.I.R. The police officer is a public servant and the site inspection map and site inspection memo are records made in discharge of his official duties, and entries in such records are relevant fact under section 35 of the Indian Evidence Act and as such those documents are public documents as they are prepared by public servant while discharging his official duties and as such admissible in evidence. 6 It has been observed in Zeenath Tej V/s Prince of Wales Medical College, Patna AIR 1971 Patna 43, as follows(para 7):
"There is a presumption that every person whether in his private or official character does his duty and unless the contrary is proved, it is presumed that all things are rightly and regularly done. This presumption applies with greater force to official acts." 10
7 According to section 74, Evidence Act, documents forming acts or records of the acts of public officers are public documents. Section 77 of the Evidence Act provides that the contents of public documents may be proved by producing their certified copies. In Madamanchi Ramappa V/s Muthaluru Bojjappa, AIR 1963 SC 1633, it has been observed by the Hon'ble Apex Court that if a document is certified copy of public document, it need not be proved by calling a witness.
8 Thus, it is well settled that strict provisions of the Evidence Act are not to be insisted by the Tribunal of limited jurisdiction. The tribunals while dealing with the cases for compensation arising out of motor vehicle accident are to follow such summary procedure as it thought fit and the certified copy of the F.I.R., inspection map and site inspection memo, panchnama, injury report or the post-mortem report, as the case may be and, other relevant documents prepared by the police or the doctor while discharging official duty are admissible in evidence without there being a formal proof.
119 In Union of India V/s T.R. Verma, AIR 1957 SC 882, the Hon'ble Supreme Court held:
"The Evidence Act has no application to inquiries conducted by Tribunals, even though they may be judicial in character. The law requires that such Tribunals should observe rules of natural justice in the conduct of the inquiry and if they do so, their decision is not liable tobe impeached on the ground that the procedure followed was not in accordance with that, which obtains in a court of law".
10 Thus, strict rules of Evidence Act are not to be insisted on by the Tribunal on being limited jurisdiction. A similar view has also been taken by the Kerala High Court in Philippose Cherian V/s T.A. Edward Lobo, 1991 ACJ 634(Kerala).
11 More so, no objection was raised at the time of marking exhibit of those documents by the respondents and as such reliance on these documents can safely by placed. Document Exh. 9 clearly shows that the offending bus was plying off the road that too by 5-7 ft. away from the metalled portion of the road and hit the deceased. Not only 12 this, offending bus went in Kachha and covered the distance of 61 ft. after having hit the deceased. This itself goes to show that the respondent bus driver was grossly negligent in driving the bus. In the facts and circumstances of this case, maxim res ipsa loquitur is fully attracted which means accident speaks for itself or accident tells its own story. There are cases in which accident speaks for it-self, therefore, in such cases it is sufficient for the claimants to prove the accident and nothing more.
12 Maxim res ipsa loquitur-when ever it is so improbable with such accident whenever have happened. In the instant case, there can be no dispute that offending bus would not have gone to the Kachhi patri which is about 5-6 ft. away from the main road and could not have travelled for such a long distance off the road and hit the deceased without there being any negligence on the part of the driver. 12A Crime report Exh. 6 of this accident was lodged by one Sunder Lal Bohra at Police Station, Sadari on the basis of which formal F.I.R no 43 of 1992 dated 22.5.1992(Exh.5) was recorded and the 13 police proceeded to investigate the matter. During the course of investigation farad surat hallat, panchnama Exh. 8, site map and site inspection memo Exh. 9, seizure memo Exh. 10, and M.T.O report Exh. 11 were prepared. Police laid challan against the respondent no. 7-the driver of the bus vide Exh. 4 for the offence under sections 279 and 304- A, Indian Penal Code before the competent court having jurisdiction to try the case".
14 Hon'ble High Court of Madhya Pradesh in Basant Kaur and others V/s Chatarpal Singh and others, reported in 2003 ACJ 369 has observed about the manner of drawing the inference in a compensation case, Para no 3 to 6 are apposite and are being reproduced:-
"3 The claims tribunal has dismissed the claim petition holding that the negligence on the part of the driver of truck no. MBN 1637 is not proved. Therefore, the claimants have preferred this appeal challenging this finding of the Claims Tribunal and seeking compensation for death of Darbara Singh.14
4 After hearing the learned counsel for the parties and perusing the material available, we find that there is no dispute about taking place of accident on 15.5.1996, in front of Sagati College, Khargone. There is also no dispute that Darbara Singh(driver of the truck no MKO 9729), died on the spot in this accident. Dispute between the parties is about the truck which was responsible for committing the accident.
5 Mr. Anil Goyal, the learned counsel appearing for Oriental Insurance Co. Ltd. with which the truck no. MKO 9729 was insured, submitted that this truck was not responsible for committing the accident. This submission is supported by the statement of claim and case registered by the police against truck No. MBN 1637 Mr. V.P. Saraf, the learned counsel appearing for United India Insurance Co. Ltd. with which truck No. MBN 1637 was insured, submitted that in absence of satisfactory and definite evidence with respect to the involvement of truck No. MBN 1637, finding of Claims Tribunal in this case is perfectly justified. Therefore, no liability can be fixed on the owner, driver and insurance company of truck No MBN 1637. 15 6 Basant Kaur has stated in the claim petition that truck No. MBN 1637 committed the accident. After all, this lady is not expected to give detailed account of the accident, since she was not present on the spot. She was told about it by the owner of the truck No. MKO 9729 after the accident that driver of truck No. MBN 1637 was driving the vehicle rashly and negligently and caused the accident. This evidence is relevant and acceptable for connecting the truck No. MBN 1637 with the accident. That apart, a criminal case under section 304-A, of the Indian Penal Code has been registered against the driver of truck No. MBN 1637. This fact is relevant under section 158(6) of the Motor Vehicles Act, 1988, under which after the accident, the Station House Officer has to inform the Claims Tribunal about taking place of accident. This case involves the driver of truck No. MBN 1637. These facts are enough to record the finding that the truck No. MBN 1637 was responsible for committing accident and not truck No. MKO 9729."
15 Hon'ble High Court of Delhi in Phool Kaur and others V/s Gurdial Singh and others reported as 2001 ACJ 24 has also observed 16 about the appreciation of testimonies in para 7 to para 12, I deem it expedient to extract the same :-
"7 The point raised in the appeal filed by the owner of the truck is: whether on the basis of the evidence available on record could the Tribunal hold that the truck was involved in the accident? Submission of the appellant that there is no evidence to connect his truck with the accident, to my mind, is unfounded. Perusal of the record shows that Tribunal on the basis of the evidence of eyewitnesses and the letter written by this appellant Exh. PW1/D concluded that the accident was caused by the truck bearing N. DLL 5885 which was driven by Gurdial Singh, the respondent. In this regard, reference can be made to the testimony of Sub- Inspector, Om Dutt, the Investigating Officer of the case. Perusal of his testimony shows that after having removed the injured to the hospital, he came back to the spot. It was after his return from the hospital that he prepared the site plan and recorded the statement of the eyewitnesses, namely, Sri Prakash, PW-7 and Nar Singh, and PW-9. PW-9 disclosed the number of the truck involved in the accident. Similarly, Sri Prakash PW-7 testified as to how the 17 accident took place. Both of them in spite of being subjected to lengthy cross examination withstood the test rather reiterated that accident was caused by the appellant's truck which hit the scooterist from behind and that the said truck was driven by Gurdial Singh, the respondent. Their presence at the spot at the time of accident has not been discredited in spite of lengthy cross examination. PW-7 saw the accident when he was going on his bicycle. He had to descend from the bicycle at the Railway Bridge, Rani Bagh, therefore, he could see the accident clearly. Nar Singh PW-9 not only saw the accident caused but also noted the truck number, i.e. DLL 5885. He described that the said truck hit against the scooterist from behind. And that the truck driver instead of stopping the truck drove it away. The truck driver in order to find out what he did peeped out of the window of the truck. It was at that stage he saw the face of the driver. The fact of peeping out his face by Gurdial Singh has been corroborated by the testimony of Sri Prakash. From their testimony, it becomes clear that they witnessed the accident. They saw the face of the driver. Their statements were also recorded by the police immediately after removing the injured to the hospital. Their statements could not be dislodged or discredited in the cross 18 examination.
8. The contention of Mr. Ajay Laroia appearing for the appellant that there was material contradiction in the testimony of Sri Prakash, PW-7 and Nar Singh, PW-9, namely the place where their statements were recorded had been given differently by Sri Prakash and Nar Singh. Sri Prakash, PW-7 stated that his statement was recorded at the spot, whereas according to Nar Singh, PW-9 the statement was recorded in the police station. To my mind, the Tribunal rightly concluded that this was not a very material contradiction which would be fatal for this case. Nor, by this contradiction inference can be drawn that truck bearing no. DLL 5885 was not involved in the accident. The accident took place in the year 1976 whereas the statement of these witnesses was recorded almost after about six years. In natural course, a witness is bound to forget the details after a lapse of time. It is only the tutored witness who can remember in precise manner the details. Natural variation after lapse of 6 years in the testimony of natural and truthful witness can come up but that cannot affect the merits of the case. The tribunal rightly concluded that there was no material contradiction on the basis of which the testimony of these 19 eyewitnesses could be discarded or it could be said that they had not witnessed the accident and the involvement of truck bearing No. DLL 5885 and the driver has not been rebutted because the owner of the truck did not step into the witness box nor Gurdial Singh stated that this truck was not involved. Therefore, I see no reason to discard their testimonies. It was PW-9, who gave the number of the truck. He saw the face of the driver and so did Sri Prakash, PW-7. Dr. Sube Singh, PW-8,is another eyewitness of the accident. He also saw that truck bearing No. DLL 5885 hitting the scooterist from behind. Admittedly, his statement was not recorded by the police either at the spot or in the police station. He, however, clarified that he did inform the Thanedar Sahab that he had witnessed the accident but his statement by the police was not recorded. He, however, informed about this accident to Mangat Ram. Mangat Ram, in turn, informed the L.Rs. That PW-8 witnessed the accident. That is how he was summoned as a witness in the court. Although his statement in the criminal case was not recorded, but that by itself can not lead to the conclusion that he was a planted witness. Merely because the statement of Dr. Sube Singh, PW 8 was not recorded by police, cannot itself be a ground to throw away his 20 testimony. For arriving at this conclusion, support can be had from the decision of Mysore High Court, namely, Varadamma V/s H. Mallappa Gowda, 1972 ACJ 375(Mysore), wherein it was held that merely because witness was not examined by the police or that he was not examined by the police or that he was not examined in the connected criminal case,it can not be said that his evidence should not be relied upon. We have to see whether the testimonies of the eyewitnesses inspire confidence and have spoken truth. If they have then there is no reason not to rely on their statements. But if there statement appears to be un-reliable then those can be discarded irrespective of the fact whether their statement was recorded at the police station or at the spot. Hence everything hinges on the credibility of the statements of PW-7, PW8 and of PW 9. As already discussed above, the statements of Nar Singh, PW9 and Sri Prakash, PW 7, corroborate each other. In cross examination, their evidence could not be discredited. From the suggestions given in the cross examination of PW 7, it is clear that the appellant accepted the presence of the truck at the site and of causing the accident. Not a single suggestion was given to this witness that the truck No. DLL 5885 did not cause accident or was not involved in this 21 accident. Nar Singh, PW 9 stated that he informed the police at the spot that he had seen the accident and so did PW 7. The suggestion given to PW 9 was that he was at a distance of one furlong at the time of accident. This suggestion itself supports that appellant accepted the presence of PW 9 at the spot at the time of accident. Second suggestion given was that he had not seen the scooter before the accident. This suggestion falsifies the argument of the appellant that PW 9 was not present at the spot at the time of accident. Not only that, even the suggestion that at the time of accident it was dark and, therefore, you could not have noted truck number goes to show that the appellant admitted the presence of this witness at the spot. All these suggestions are a clear pointer to the fact that the witness was present at the spot when the accident took place. He in no uncertain words stated that he read the truck number from the rear plate when the truck speeded away after hitting the scooterist. He denied any relationship with the deceased. The appellant had not been able to prove that PW 9 was related to the deceased and, therefore, made the statement in order to favour the claimants. The suggestions to this witness that scooterist was carrying rori on his scooter and since he 22 could not balance hence fell down. This suggestion, of course, was denied by this witness. It, however, proves that the appellant accepted the presence of PW9 at the spot on the fateful day and time when accident took place. Except a mere suggestion, nothing was put to this witness where from it could be inferred that this truck was not involved in this accident.
9 Perusal of the testimony of Dr. Sube Singh, PW 8 was not not related to the deceased also inspires confidence. This same shows that he had, in fact, witnessed the accident and noted the number of the truck, i.e., DLL 5885 which hit the scooterist from behind. He had seen the accident when the truck was hardly 22-25 paces behind the scooter and the scooterist was driving on the correct side of his road. This witness belongs to Shahpur village. He was not known to the deceased from before. His statement was not recorded by police though he say he narrated the incident to the Thanedar Sahab. He also narrated the accident to Mangat Ram. He had given his name to the police. Mangat Ram noted his name. Since he had disclosed the details of the accident hence he was summoned as a witness in the court. There is no reason 23 to doubt his testimony. His presence at the spot can be presumed on record. For example, his presence can be inferred because the accident took place hardly half-a-kilometre from his residence. While he was coming on foot to his factory he witnessed the accident. The accident took place somewhere between his home and his factory and at that time, i.e, 8.45 p.m when he was coming to work. There cannot be any motive for this witness to depose falsely or to favour the claimants who are not known to him from before.
10 I find no reason to discard the testimonies of eyewitnesses either on account of some contradictions regarding place of recording their statements by police or that PW 8's statement was not recorded by the police. The Tribunal was not trying a criminal case, where the guilt has to be proved beyond any doubt. Not only the testimonies of PW 7, PW 8 and PW 9 inspire confidence but their statements in a way are corroborated by the stand taken by the respondent, Gurdial Singh, in the written statement as well as from the reply sent by his appellant to the police, Exh. PW6/D. Gurdial Singh took the defence that he was bedridden hence did not drive the truck on that day. Someone else 24 drove the truck. The defence taken by Gurdial Singh was contradicted by this appellant when he in his reply Exh. PW6/D stated that on 5.6.1976 his truck DLL 5885 was being driven by Gurdial Singh, driver. If this truck had not been driven on that day by Gurdial Singh, the owner would have said so, instead he admitted that the truck was driven on that day be Gurdial Singh. Similarly, the defence taken by this appellant was contradicted by Gurdial Singh when he stated that truck was driven but by someone else. This appellant had taken the plea that on the day of accident his truck had not come on the road. These contradictory stands of the driver and the owner clearly show that they were hiding the truck. They built up sham defence in order to defeat the claim of the claimants.
11 From the reading of Exh. PW6/D and the reply filed by the driver, Gurdial singh, an inference can be drawn that they were trying to save themselves from the liability. From the reply Exh. PW6/D, it can be seen that Gurdial Singh was not bedridden on that day and that he, in fact, was driving the truck. The appellant did not step into the witness box nor produced the logbook of the truck. Therefore, adverse 25 inference can be drawn against him. No reliance can be placed on the testimony of Gurdial Singh, driver of the truck who in order to save himself tried to mislead the court. The Tribunal rightly concluded that the truck No. DLL 5885 driven by Gurdial Singh was involved in the accident. It ultimately killed the deceased, Ishwar Singh. Gurdial Singh in his statement except saying that he was confined to bed nowhere denied the accident. On the contrary, he took the plea that someone else was driving the truck on that date. Neither the name of that person was disclosed nor produced him in evidence. It is apparent from the present appellant's reply Exh. PW6/D that Gurdial Singh was driving the truck in question and that truck was on the road and caused the accident.
12 The contention of Mr. Ajay Laroia that Dr. Sube Singh, PW 8, was a planted witness, his name did not figure in the police diary or in police record not his statement was recorded, I have already dealt with this aspect of the argument of the appellant and find no substance in the same. There is no material contradiction in the testimony of the Investigating Officer, Om Dutt, PW 6 and of Nar Singh, PW 9 or of Sri Prakash, PW 7. From the evidence which had come on record, 26 presence of PW 7, PW 8 and PW9 stood established. As already pointed out by me above, it is only a tutored witness who would repeat the version verbatim; otherwise, in natural course of business if two persons see an incident they are going to describe it in their own way. Thus, so far as the cause of accident and the involvement of truck No. DLL 5885 is concerned, that is fully established. Hence, I find no merit in the appeal of Madan Lal, owner of the truck. The same is accordingly dismissed."
16 In Paramjeet Kaur and another V/s Murarilal Shankya and others, reported in 2005 ACJ 401, it has been held that in cases in which involvement of the alleged offending vehicle is admitted by the driver and owner of the alleged offending vehicle, onus shifts on the owner and driver of the alleged offending vehicle to prove that he was not rash and negligent. Even otherwise, in MACT cases this is the settled position of law. Observations of Hon'ble High Court in para no. 10 are apposite and are being reproduced:-
" 10 As regards the rash and negligent driving is concerned, 27 burden was upon the driver of offending vehicle to prove that there was no negligence on his part. Driver has not entered the witness box. Even otherwise, u/s 166 of the new Motor Vehicle Act, it is sufficient to prove that there was an accident and question of rash and negligent driving is not essential. Section 166 of the Motor Vehicle Act provides that the application for compensation arising out of an accident of the nature specified in sub- section (1) of section 165 shall be filed. Section 165(1) provides that State Government may, by notification in the Official Gazette, constitute one or more Motor Accidents Claims Tribunals for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to persons, arising out of the use of motor vehicles or damages to any property of a third party so arising or both. Thus, if the accident has arisen out of use of motor vehicle then the claimants are entitled for compensation. It is not necessary to prove rash and negligent driving. Since, it is admitted by the owner and driver that accident has arisen out of use of offending truck driven by R-1, we hold that claimants are entitled for compensation".28
17 In view of the above going detailed discussion of the position of law, let the facts of the case be adverted to. Facts of the case reveal that petitioners have proved the records of the criminal case in the shape of site plan, list of witnesses, mechanical inspection report, F.I.R, postmortem report etc. 18 From the records of the criminal case, involvement of offending vehicle has been proved. Rashness and negligence on the part of driver of the car no 2159 also stands proved. Smt. Neerja has stated that driver of the 2159 had come from the opposite side, driving his car in rash and negligent manner and had struck against Maruti Zen. In view of mandate of 2002 ACJ, 1564, rashness and negligence can be presumed against the driver of offending Wagon R. In view of F.I.R onus shifted on Sh. Pankaj Mahajan to contradict his rashness and negligence.
19 In view of mandate of Phool Kaur V/s Guru Dayal, adverse inference can be drawn against Sh. Pankaj Mahajan on account of his 29 not stepping in the witness box, to the effect that he was rash and negligent while driving. In view of mandate of 2003 ACJ 369, also presumption of rashness and negligence can be drawn against R-1. In view of mandate of 2005 ACJ 401 also it has tobe held that claimants are entitled to compensation.
20 Perusal of the records of the case has revealed that R-1 Sh. Pankaj Mahajan has not appeared in this case despite service having being effected upon him on many occasions and the same also warrants an adverse inference against him. As far as non appearance of Sh. Pankaj Mahajan, despite service is concerned, this fact shall be adverted to in detail in liability para and it suffices to say that he has not appeared despite service.
21 In view of above going discussion, it is hereby observed that rashness and negligence stands proved by the petitioners on the part of the R-1.
22 Arguments of Sh. Yogesh Narula to the contrary are not 30 tenable in view of the above going discussion. Arguments concerning contributory negligence might have been arguable, iff Sh. Pankaj Mahajan would have stepped in the witness box and would have denied rashness and negligence on his part. The arguments with respect to planting of PW-2 Sh. Subhash are also not tenable as even if his testimony is ignored issue has to go infavour of petitioners. However, I am taking assistance from the testimony of PW-2 Sh. Subhash for lending support to my conclusion. Reliance of Mr. Yogesh Narula on various judgements as detailed in the para concerning arguments is of no help as the judgments are distinguishable on facts. The arguments of Mr. Narula concerning defecto/dejure ownership of Zen having not been proved by the petitioners, is not tenable as records of the case show it otherwise. In para no 10, PW-1 has testified that Zen car no. 8497 in which deceased was travelling was owned and registered in the name of her husband Sh. Satpal Yadav. In para no. 13, she has testified that petitioners and deceased can be connected with the deceased. Version of PW-1 in this regard has gone unchallenged and uncontroverted. In cross examination she has given the details about the family members. She has proved Ex. PW4/1 31 (insurance policy), Ex. PW4/2(survey report), Ex. PW4/3(claim rejection letter), Ex. PW1/2(death certificate of deceased Kamal Yadav) Ex. PW1/3(D/L of Sh. Kamal Yadav), Ex. PW1/4( registration certificate). Ex. PW1/6 ration card. These documents clearly establish defacto as well as dejure connectionship with the car of the petitioners and so the arguments are rejected.
ISSUE NO. 2 23 Petitioner Smt. Nirmala Devi in para no 10 of her affidavit has testified that Zen car no. 8497 was owned and registered in the name of her husband Sh. Satpal Yadav. In para no. 13 she has testified that parentage of deceased can be connected with the petitioners with the help of death certificate and other documents placed on the record. Version of PW-1 in this regard has gone unchallenged and unrebutted. During cross examination she has testified that Sh. Gopal Yadav is her eldest son. She has also testified that she has children namely Meena and Pushkar. Ex. PW4/A insurance policy is in the name of Sh. Sat Pal Yadav resident of 41, main road, Libaspur, New Delhi. Rejection letter Ex. PW4/3 has been sent to Smt. Nirmala Devi at the above mentioned address. In the Survey report Ex. PW4/2 Sh. Satpal Yadav has been 32 shown as the insured. Ex. PW1/3 shows that deceased Kamal Yadav was son of Sh. Sat Pal Yadav. Registration certificate is at the address of 41 main road, Libaspur, which is address of petitioners in the petition. Ration card Ex. PW1/6 clearly shows the relationship of Sh. Satpal Yadav with the petitioners. Mere non mentioning of the name of Kamal Yadav in the ration card is of no help to Sh. Yogesh Narula as the conjoint reading goes to show that petitioners have established their relationship with the deceased. Accordingly, issue no. 2 is decided in favour of the petitioners and against the respondents.
ISSUE NO 3 24 In view of decision of issue no. 1 having gone in favour of petitioners, next question which requires decision is the amount which is tobe paid to the claimants. Principles of assessment of compensation in fatal cases have been explained time and again by the Hon'ble Supreme Court. Recently the same were explained by Hon'ble Supreme Court in New India Assurance Company Ltd V/s Smt. Kalpana and others reported in 2007 (1) T.A.C 795(S.C). The apposite observations of the Hon'ble Supreme Court are contained in para no. 5 33 to para no. 11. I deem it expedient to reproduce the same herein below:-
"5 Certain principles were highlighted by this Court in the case of Municipal Corporation of Delhi V/s Subhagwanti, 1966 (3) S.C.R 649, in the matter of fixing the appropriate multiplier and computation of compensation. In a fatal accident action, the accepted measure of damages awarded to the Dependants is the pecuniary loss suffered by them as a result of death. " How much has the widow and family lost by the father's death?" The answer to this lied in the oft quoted passage from the opinion of Lord Wright in Davies V/s Powell Duffryn Associated Collieries Ltd, All. E.R. p. 665 A-B, which says:
" The starting point is the amount of wages which the deceased was earning, the ascertainment of which to somce extent may depend on the regularity of his employment. Then there is an estimate of how much was required or expended for his own personal and living expenses. The balance will give a datum or basis figure which will generally be turned sum, however, has to be taxed down by having due regard to uncertainties, for instance, that the widow 34 might have again married and thus ceased to be dependent, and other like matters of speculation and doubt."
6 There were two methods adopted to determine and for calculation of compensation in fatal accident actions, the first the multiplier mentioned in Davies case(supra) and the second in Nance V/s British Columbia Electric Railway Co. Ltd. 1951 (2) All. E.R. 448. 7 The multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalizing the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased (or that of the claimants whichever is higher) and by the calculation as to what capital sum if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital should also be consumed up over the period for which the dependency is expected to last. 35 8 The consideration generally relevant in the selection of multiplicand and multiplier were adverted to by Lord Diplock in his speech in Mallett V/s MC Mongle, 1969(2) ALL. E.R 178, where the deceased was aged 25 and left behind his widow of about the same age and three minor children. On the question of selection of multiplicand Lord Diplock observed:
" The starting point in any estimate of the amount of the dependency is the annual value of the material benefits provided for the Dependants out of the earnings of the deceased at the date of his death. But, there are many factors which might have led to variations up or down in the future. His earnings might have had spells of unemployment. As his children grew up and became independent the proportion of his earnings spent on his Dependants would have been likely to fall. But, in considering variations in the dependency there are two factors to be borne in mind. The first is that the more remote in the future is the anticipated change the less confidence there can be in the chances the less confidence there can be 36 in the chance of its occurring and the smaller the allowance to be made for it in the assessment. The second is that as a matter of the arithmetic of the calculation of present value, the later the change takes place, the less will be its effect upon the total award of damages. Thus, at interest rate of 4 ½ % the present value of an annuity for 20 years of which the first 10 years are at $ 100 per annum and the second 10 years at $ 200 per annum, is about 12 years' purchase of the arithmetical average annuity of $ 150 per annum, whereas if the first 10 years are at $ 200 per annum and the second 10 years at $ 100 per annum the present value is about 40 years' purchase of the arithmetical meaning of $ 150 per annum. If, therefore, the chances of the variations in the 'dependency' are to be reflected in the multiplicand of which the years' purchase is the multiplier, variation in the dependency which are not expected to take place until after 10 years should have only a relatively small effect in increasing or diminishing the 'dependency' use for the purpose of assessing the damages."37
9 In regard to the choice of the multiplicand the Halsbury's Laws of England in Vol. 34, para 98 states the principles thus:
"98. Assessment of damages under the Fatal Accidents Act, 1976. The Courts have evolved a method for calculating the amount of pecuniary benefit that Dependants could reasonably expect to have received from the deceased in the future. First the annual value to the dependant6s of those benefits(the multiplicand) is assessed. In the ordinary case of the death of a wage-earner that figure is arrived at by deducting from the wages the estimated amount of his own personal and living expenses.
The assessment is split into two parts. The first comprises damages for the period between death and trial. The multiplicand is multiplied by the number of years which have elapsed between those two dates. Interest at one-half the short- term investment rate is also awarded on that multiplicand. The second part is damages for the period from the trial onwards. For that period, the number of years 38 which have based on the number of years that the expectancy would probably have lasted; central to that calculation is the probable length of the deceased working life at the date of death."
As to the multiplier, Halsubury states:
"However, the multiplier is a figure considerably less than the number of years taken as the duration of the expectancy. Since the Dependants can invest their damages, the lump sum award in respect of future loss must be discounted to reflect their receipt of interest on invested funds, the intention being that the dependents will each year draw interest and some capital ( the interest element decreasing and the capital drawings increasing with the passage of years) so that they are compensated each year for their annual loss, and the fund will be exhausted at the age which the Court assesses to be the correct age, having regard to all contingencies. The contingencies of life such as illness, disability and unemployment have to be taken into account. Actuarial evidence is admissible, but the Courts do not 39 encourage such evidence. The calculation depends on selecting an assumed rate of interest. In practice about 4 to 5 per cent is selected, and inflation is disregarded. It is assumed that the return on fixed interest bearing securities is so much higher than 4 to 5 per cent that rough and ready allowance for inflation is thereby made. The multiplier may be increased where the plaintiff is a high tax payer. The multiplicand is based on the rate of wages at the date of trial. No interest is allowed on the total figure".
10 In both G.M., Kerala S.R.T.C. V/s Susamma Thomas, 1994(2) S.C.C. 176: 1994(1) T.A.C 323, and U.P. State Road Transport Corporation V/s Trilok Chandra, 1996 (4) S.C.C. 362: 1996 (2) T.A.C 286, the multiplier appears to have been adopted taking note of the prevalent banking rate of interest.
11 In Susamma Thomas's case (supra) it was noted that the normal rate of interest was about 10 % and accordingly the multiplier was worked out. As the interest rate is on the decline, the multiplier 40 has to consequentially be raised. Therefore, instead of 16 the multiplier of 18 as was adopted in Trilok Chandara's case (supra) appears to be appropriate. In fact in Trilok Chandra's case(supra) after reference to Second Schedule to the Act, it was noticed that the same suffers from many defects. It was pointed out that the same is to serve as a guide, but cannot be said to be invariable ready reckoner. However, the appropriate highest multiplier was held to be 18. the highest multiplier has to be for the age groups of 21 years to 25 years when an ordinary Indian citizen starts independently earning and the lowest would be in respect of a person in the age group of 60 to 70, as the former is the normal retirement age.(See: New India Assurance Co. Ltd V/s Charlie and another, 2005 (10) S.C.C 720: 250 (2) T.A.C 297." 25 In view of the above quoted position of law coupled with other general principles of assessment in a fatal case, I proceed to asses the compensation vis-a-vis the present case. Let the multiplicand be ascertained first.
MULTIPLICAND 26 For ascertaining the multiplicand first determinant tobe 41 ascertained is the income of the deceased on the date of accident. Petitioners with respect to income of the deceased have averred in para no.6 to the effect that he was earning Rs. 2,500/- per month. In the statement given for the purpose of interim compensation given by Smt. Nirmala Devi on 7.11.2005, the income of the deceased is stated to have been ranging between Rs. 3,500/- to Rs. 5,000/- per month. In evidence led by way of affidavit Ex. PW1/X, in para 7, income has been stated to be Rs. 5,000/- per month. During cross examination, she has admitted that deceased was not in regular employment as a driver and he used to work on casual basis. The result of above discussion is to the effect that petitioners have not led proper evidence concerning the income of the deceased what to talk of cogent evidence. In these circumstances, reliance on minimum wages shall have to be had. Counsel Sh. R.K. Kohli during course of arguments had submitted that deceased be treated as skilled and educated worker on the ground that he was driving the car coupled with assertion of petitioners to the effect that deceased was driving private taxi on casual basis. Perusal of Ex. PW1/3 reveals that deceased was not having any commercial licence and hence, he cannot be treated as a skilled worker. It is admitted case 42 of the petitioners that deceased was not a matriculate. Thus, the deceased is to be considered as an uneducated and unskilled worker. Minimum wages of the uneducated and unskilled worker on the date of accident i.e. 30.08.2004 was Rs. 2894/-(say Rs. 2,900/-). 27 Next question which immediately requires to be decided is the multiplier. For ascertaining multiplier, the age of the parents shall have to be considered as it is well settled that for application of multiplier age of the deceased or of the parents, whichever is higher is to be the basis. According to Smt. Nirmala Devi, deceased was 19 years of age and was unmarried. Father of deceased Sh. Satpal Yadav has died hence age of the mother shall have to be ascertained. Petitioners have not given age of Smt. Nirmala Devi in the petition or in the affidavit accompanied with the same. On 07.11.2005 she gave statement for the purpose of interim compensation, wherein she stated that she was 45 years of age. Accident took place on 30.08.2006. Thus, if the age given by Smt. Nirmala Devi in the statement for the purpose of interim compensation is considered, then she was 44 years of age at the date of accident. Coming to documentary evidence with respect to age of 43 Smt. Nirmala Devi, the only document which can be looked is the ration card Ex. PW1/6. Ration card was issued on 18.08.2005. Date of birth of Smt. Nirmala Devi has been given as year 1962. Thus, she is of 42 years as per the ration card. Out of the age given in the ration card and in the statement, it will be more appropriate, if the age given by Smt. Nirmala Devi on solemn affirmation is taken, as she is the best person to give her age. In affidavit Ex. PW1/X also age has been given as 44 years. Thus, from that angle also, there is no hitch in taking age as 44 years. Thus, main determinants of multiplicand and multiplier have been ascertained. Annual income of deceased was Rs. 2,900/-. 28 Deceased was a young man and he would have progressed in life as so contented by Sh. R.K. Kohli ld counsel for petitioner. Sh. R.K. Kohli has drawn my attention towards minimum wages and has submitted that the same also keep on increasing. A look at the minimum wages reveal that there has been consistent escalation in the same. Thus, future prospects can be given to the petitioners in view of mandate of Hon'ble Mr. justice Pradeep Nandrajog given in F.A.O number 396/01 decided on 15.01.2007. Hon'ble Mr. Justice Mr. Pradeep 44 Nandrajog in the above F.A.O has observed that minimum wager also is to be given future prospects. Judgement of Hon'ble Supreme Court titled as 'Bijoy Kumar Dugger' was discussed and future prospects were given. Thus, in view of mandate of the same, income of deceased is being taken as 2,900/- + 5,800/-divided by 2= 4,350/-(say Rs. 4,400/-). 29 Deceased being an unmarried boy would have married soon and his contribution to the family would have dwindled downwards. Therefore, it will be appropriate to deduct at least 50% of the same towards personal expenses of the deceased. Thus, dependency to the family can be taken as Rs. 4400/- divided by 2 = Rs. 2,200 per month and annual dependency thus comes to Rs. 2,200/-X12 =26,400/-
Thus multiplicand has been arrived at.
30 Next question which requires determination is as to with what multiplier multiplicand should be multiplied. Hon'ble Supreme Court in 'Sushma Thomas' reported in AIR 1994 SC 1631 in case of age of deceased being 38 years, applied multiplier of 13. In 2004 ACJ 53 titled as M.C of greater Bombay V/s Laxman Iyer & other age of the parents was 47 and 43 years and multiplier of 10 was applied. In 1994 45 ACJ in case of age of 39 years multiplier of 12 was applied. In AIR 2005 SC 2965 titled as Tamilnadu State Transport Corporation V/s S. Rajpriya and others deceased was 38 years of age and multiplier of 12 was applied. In 2006 ACJ 423 multiplier of 13 was applied in case was deceased being 34 years of age. In Ruchi Seth and others V/s Prushotam Kumar reported in 2007(2) TAC 313(Delhi) multiplier of 10 was applied.
31 Taking clue from the above mentioned judgements, there is no hitch in applying the multiplier of 10 in the present case, for the reason that facts of the case are almost identical to 2004 ACJ 53 concerning age of the deceased and age of the parents. 32 In view of the above going discussion loss of dependency comes to Rs. 26,400X10= Rs. 2,64,000/-. To the above mentioned amount of Rs. 2,64,000/- are added amount of Rs. 10,000/- towards funeral expenses, Rs. 20,000/- towards loss of filial love and affection and Rs. 30,000/- towards loss of love and affection. 46 33 Another aspect which requires determination in this case, is the amount of damages towards the car. Petitioners in this context have proved the report of surveyor vide Ex. PW4/2. Survey report goes to show that case was assessed as a total loss and a sum of Rs. 2,91,112/- was recommended. The claim was rejected by United India Insurance Company vide Ex. PW4/3 on technical ground of non transfer of the car in the name of Smt. Nirmala Devi. PW-4 Sh. Jagdish Lahoti has proved the copy of the policy as Ex. PW4/1, report of surveyor as Ex. PW4/2 and rejection letter as Ex. PW4/3. During cross examination this witness has given the reasons concerning non awarding of claim only on the ground that petitioners have not completed the formality concerning their relation with the deceased insured and not getting the vehicle transferred in their name. He clarified that there was no other objection to the claim as such. Since the petitioners have sustained damages to the car on account of rash and negligent act of the driver of Wagon R car, they are third parties and are entitled to recover the amount from the respondents. Thus, the amount can be awarded to them with the rider that they shall not claim it from United India Insurance Company in future. It is also subject to the rights of 47 respondent insurance company to get this amount from United India Insurance Company after transfer of the vehicle in the name of Smt. Nirmala Devi or the petitioners. Petitioners before release of this amount shall have to give an undertaking to the effect that they shall do everything required in favour of the insurance company, the respondents, for facilitation of revival and disposal of rejected claim of policy Ex. PW4/1.
34 The next question which require determination is as to what should be the amount which should be directed tobe paid to the petitioners. Counsel for insurance company has drawn my attention towards citation titled as New India Assurance Company Ltd V/s E.M Chaiyapathi and another reported in IV(2005) ACC 61 and has argued that 50% be deducted from the amount as projected by survey report. In view of mandate of IV(2005) ACC 61, I deem it expedient to deduct a sum of Rs. 90,000/- from the amount projected by surveyor. While doing so I have kept in mind the age of the vehicle and the fact that surveyor has not been examined. I have also kept in my mind the fact that damaged vehicle was not an old one and was of 2004 model and 48 accident had taken place in the year 2004 it self. So, I deem it expedient to award a sum of Rs. 2,01,600/- to the petitioners towards loss of damage of the car.
RELIEF 35 I therefore, pass an award for a sum of Rs. 5,25,600/- in favour of the petitioners and against the respondents. Petitioners shall also get interest @ 7% per annum w.e.f date of filing of petition till the date of realization. Interest is being awarded for detention of money by the respondents and forbearance of the petitioners, in view of the mandate of section 171 of the Act.
LIABILITY TO PAY 36 In view of the fact that offending vehicle was insured with R-2 at the time of accident and petitioners being the third parties,liability to pay is fastened on insurance company. However, respondent no. 2 is granted recovery rights reasons for which will follow soon. The amount shall be paid within a period of 30 days from today failing which tribunal shall be constrained to take harsh steps including imposition of penalty of penal interest.
49
RECOVERY RIGHTS 37 Counsel Sh. Yogesh Narula has vehmentaly argued that recovery rights should be given to insurance company. I am in consonance with him. The reason being that Sh. Pankaj Mahajan has failed to discharge the onus of rebuttal of presumption which arose in favour of the insurance company. The reason as to why the presumption arises in favour of the insurance company are that Sh. Pankaj Mahajan had failed to respond to the insurance company to which he was duty bound. R-2 has proved on records of the case registered letter sent to Sh. Pankaj Mahajan vide Ex. R2W1/2. In this letter Sh. Pankaj Mahajan was asked to produce driving licence of Sh. Vinod Kumar, S/o Sh. Gaja Nand. R-2 has proved that this letter was sent to Sh. Pankaj Mahajan by producing Ex. R2W1/3. At entry no. 298 sending of the letter has been substantiated. There is a presumption towards registered postal article that it must have reached to the addressee u/s 27 of the General Clauses Act. Hon'ble Supreme Court in civil appeal no. 767/07 titled as C.C Ali Hazi V/s Palapetty Mulah ahmed and another has reiterated that onus shifts on the addressee to prove non service of notice once it is brought on record that postal 50 articles were sent on the correct address of addressee. Thus, Insurance company has been successful in inclining me to raise the presumption. Non reply of Ex. R2W1/3 by Sh. Pankaj Mahajan compels me to draw another presumption to the effect that Sh. Pankaj Mahajan had not assured that he handed his car bearing no. DL-7CD-2159 to a licensed driver and committed a willful breach of the terms and conditions of the policy. Ex. R2W1/1 goes to show that vehicle must be driven by a person having an effective driving license at the time of accident. By issuing Ex. R2W1/2 company discharged its onus in the direction of willful breach on the part of the insured. Non reply by Sh. Pankaj Mahajan has to go against him.
38 Presumption also arises to the effect that if Sh. Pankaj Mahajan was at the steering wheel, then he was without D/L. Ex.R2W1/2 also reveals that D/L was not in the possession of Sh. Pankaj Mahajan. Investigator was directed by Sh. Pankaj Mahajan to contact with his Advocate Ms. Bharat Bhushan. Another opportunity was not availed by Sh. Pankaj Mahajan concerning production of driving license of the driver of the Wagon R vide Ex. R2W1/5. This letter was 51 sent through postal receipt Ex.R2W1/6 and U.P.C Ex. R2W1/C. The presumption of service arose in favour of respondent insurance company in view of the discussion above. Ex. R2W1/8 also reveals that it was received by one Sh. Piyush on behalf of Sh. Pankaj Mahajan. Despite service Sh. Pankaj Mahajan failed to file W.S and also failed to file reply of the notice u/o 12 R 8 CPC. Non response compel me to draw an inference to the effect that there was a willful breach of terms & conditions of policy on the part of Sh. Pankaj Mahajan. Insurance Company could not have done anything more than the issuance of the notice to Sh. Pankaj Mahajan and its service upon him which has been done. The fact of D/L being there or not being within the exclusive knowledge of insured, it was he who should have come forward and disclosed.
39 Another reason to draw an inference against Sh. Pankaj Mahajan are the processes issued against him by my Ld Predecessor as well as by me on different dates. AD card with next date of hearing as 13.12.05 reveals that Smt. Ranjana received the process of the court on 18.11.2005. Another process for 13.12.2005 reveals that Sh. Pankaj 52 Mahajan was avoiding the process of the court. AD card for 1.3.2006 also reveals that Sh. Pankaj Mahajan was served. Process for 14.3.2006 reveals that wife of Sh. Pankaj Mahajan namely Smt. Ranjana received the process of the court for 14.3.2006. Another process is that of 16.10.2006 Sh. Pankaj Mahajan was asked to produce the insurance policy and D/L. On 28.9.2006 wife of Sh. Pankaj Mahajan received the process of the court, but Sh. Pankaj Mahajan failed to appear. Notice u/o 16 R 12 CPC was issued for 21.11.2006 against Sh. Pankaj Mahajan. This notice was not received by Sh. Pankaj Mahajan and other inmates of the house for the reasons best known to them. Ms. Pankaj Mahajan was served on 18.01.2007 personally to appear on 23.01.2007. He has failed to do so. All the above mentioned facts go to show that Sh. Pankaj Mahajan was not having any thing to say. As otherwise he would have come to this court and would have furnished the particulars of driving license of the driver. In M.A.C appeal no. 527/2005 titled as New India Assurance Company V/s Vijay Pal and others Hon'ble Mr. Justice Pradeep Nandrajog has mandated that in case the owner does not step into the witness box, despite taking of steps by the insurance company, onus is shifted on the 53 shoulders of the owner and show that he took all reasonable precautions to see that the driver held a valid driving license. In the present case Sh. Pankaj Mahajan has failed to step into the witness box and there is no hitch in granting the recovery rights to the insurance company as so requested by Mr. Yogesh Narula. Accordingly, recovery rights are granted to insurance company.
APPROTIONMANT 39 In the present case there is no need to apportion the amount amongst the petitioners as deceased was unmarried boy and Smt. Nirmala Devi being the mother alone is entitled for compensation. So entire amount is awarded in favour of Smt. Nirmala Devi. 40 Out of the awarded amount a sum of Rs. 3 lacs shall be kept in fixed deposit by Smt. Nirmala Devi in a nationalized bank for a period of five years from today with no facility of loan, premature withdrawal, mortgage etc. Claimants shall however be entitled to draw interest. 54 41 Copy of judgment/award be given dasti to the parties for necessary compliance.
File be consigned to record room.
Announced in the open court Dated : 03.08.2007 (DILBAGH SINGH) Judge/MACT:Delhi 55 56