Delhi District Court
Smt. Kaushlya vs Sunny Chhabra on 26 August, 2017
IN THE COURT OF SH SANJAY SHARMA, PRESIDING OFFICER,
MOTOR ACCIDENT CLAIMS TRIBUNAL : EAST DISTRICT :
KARKARDOOMA COURTS : DELHI
Suit No.: 311/16 (Old No. 72/14)
Unique Case I.D. No.: 02402C0097602014
Smt. Kaushlya
W/o Late Sabeyram
R/o H. No. 154, Mahavatpur,
Post Bhaskala, Distt. Faridabad,
Haryana
..... Petitioner
Suit No.: 252/16 (Old No. 76/14)
Unique Case I.D. No.: 02402C0103072014
Kuldeep
S/o Sh. Jaswant Singh Chauhan
R/o Vill. Sashana, Post Sashana,
Distt. Bhagpat, Uttar Pradesh
..... Petitioner
VERSUS
1. Sunny Chhabra
S/o. Sh. Govind Dass Chhabra
R/o F-23, Mandawli, Fazalpur,
New Delhi
..... Driver
2. Indu Jain
W/o Sh. Satender Kumar Jain
R/o B-147 A, Surya Nagar,
Distt. Ghaziabad, Uttar Pradesh
..... Owner
3. ICICI Lombard GIC Ltd.
Space No. 315, 3rd Floor, Aggarwal City Mall,
Plot No. 04, Road No. 44, Near M2K Cinema,
Pitampura, New Delhi -110034
..... Insurer
..... Respondents
Date of institution : 31.03.2014
Reserved for orders : 23.08.2017
Date of Award : 26.08.2017
JUDGMENT
Suit No 311/2016 Kaushlya Devi vs Sunny Chhabra & Ors. 1 of 20 Introduction:
1. On 18.02.2014 at about 11.30 a.m., Mr. Mahipal, bachelor, age 21 years, born on 28.12.1992 was driving motorcycle bearing registration No. HR 51 AU 0278 with his cousin brother Kuldeep as a pillion rider on Yamuna Express-
way in front of Vill. Dankaur, Gautam Budh Nagar when they were hit from behind by Hyundai Verna bearing registration No. UP 14 BW 1899 (the offending vehicle) allegedly driven rashly / negligently by the respondent No. 1 resulting into injuries to the driver and pillion rider and Mahipal died in the consequence. Two accident claim cases were instituted on fault liability, it being Suit No. 311/16 (Old No. 72/14) on account of death of Mahipal (the deceased) by his parents and the other being Suit No. 252/16 (Old No. 76/14) by Kuldeep for compensation in respect of the injuries sustained by him. In respect to the said accident, Crime No. 60/14 vide FIR No. 58/14 under section 279/338/304-A/427 IPC was registered at PS Dankaur, Distt. Gautam Buddha Nagar, U.P. The respondent No. 1 and 2 are the driver and registered of the offending vehicle respectively. The respondent No. 3 (insurer) had insured the offending vehicle against third party risk for the period in question. During the inquiry, father of the deceased expired and his mother Smt. Kaushalya Devi prosecuted the claim case.
2. On being noticed, the respondent No. 1 filed written statement. He stated that he had not caused any accident, as alleged, involving the offending vehicle. He claimed false implication.
Suit No 311/2016 Kaushlya Devi vs Sunny Chhabra & Ors. 2 of 20
3. The respondent No. 2, in her written statement, stated that the offending vehicle was duly insured with ICICI Lombard GIC Ltd. (insurer) for the period in question. She stated that there was no negligence on the part of the respondent No. 1 and the deceased was responsible for the cause of accident.
4. The respondent No. 3 (insurer), in its written statement, stated that the accident had taken place due to the negligence of the deceased and not of the respondent No. 1. It admitted that the offending vehicle was duly covered under a valid policy for the period in question.
5. An application under Order 6 Rule 17 of the Code of Civil Procedure, 1908 (CPC) was filed by the respondent No. 3 alleging therein that in investigation, it was revealed that previous policy for the period from 17.02.2013 to 16.02.2014 issued by HDFC Ergo GIC Ltd. was fake on the basis of which the respondent No. 3 issued the current policy in good faith. It was stated that the current policy is void ab initio as it was obtained by non-disclosure of a material fact or by a representation fact which was false in material particulars as per section 149 (2) (b) of M.V. Act. It was stated that a criminal complaint, in this regard, was filed vide DD No. 71B dated 08.10.2014 in PS Lajpat Nagar.
6. The said application under Order 6 Rule 17 CPC was allowed on 24.07.2015.
7. Thereafter, the respondent No. 3 / insurer filed amended written statement incorporating the facts pleaded in its application under Order 6 Rule 17 CPC.
8. The respondent No. 2, in her amended written Suit No 311/2016 Kaushlya Devi vs Sunny Chhabra & Ors. 3 of 20 statement, stated that she had not concealed any fact from the respondent No. 3 / insurer while taking out the current policy. She denied that she breached faith of the respondent No. 3 / insurer. She stated that the respondent No. 3 had issued the current policy after checking all the documents. She contended that the offending vehicle was purchased in the year 2012 and it was insured through Future Generali India for the period from 25.09.2012 to 24.09.2013 and thereafter, the offending vehicle had no insurance till the end of January, 2014. She contacted an agent of the respondent No. 3 / insurer in the first week of February for issuance of new policy and the respondent No. 3 / insurer issued the current policy for the period from 17.02.2014 to 16.02.2015 after requisite formalities including mechanical inspection of the offending vehicle. She denied that she had produced a fake policy for taking out the current policy from the respondent No. 3 / insurer. She denied that she ever applied to HDFC Ergo GIC Ltd. for taking out the said policy for the period from 17.02.2013 to 16.02.2014.
Issues:
Suit No. 311/16 (Old No. 72/14)
9. On the pleadings, following issues were framed:
i) Whether the deceased Mahipal suffered fatal injuries in a road accident on 18.02.2014 involving vehicle i.e. Car bearing registration No. UP 14 BW 1899 driven by respondent No. 1 in a rash and negligent manner?
(OPP)
ii) Whether the petitioners are entitled for any compensation, if so, to what amount and from whom?
Suit No 311/2016 Kaushlya Devi vs Sunny Chhabra & Ors. 4 of 20 (OPP)
iii) Relief?
Suit No. 252/16 (Old No. 76/14)
10. On the pleadings, following issues were framed:
i) Whether the petitioner Kuldeep suffered injuries in a road accident on 18.02.2014 involving vehicle i.e. Car bearing registration No. UP 14 BW 1899 driven by respondent No. 1 in a rash and negligent manner?
(OPP)
ii) To what of compensation, if any, the petitioner is entitled to and from whom? (OPP)
iii) Relief?
Consolidation:
11. Vide order dated 16.10.2014, the Suit No. 311/16 (Old No. 72/14) and Suit No. 252/16 (Old No. 76/14) were consolidated and Suit No. 311/16 (Old No. 72/14) was treated as the lead case.
Evidence:
12. Smt. Kaushalya Devi, mother of the deceased (PW-1) filed her evidence by way of an affidavit. She relied on criminal case record Ex.PW1/1, copy of driving license of the deceased Ex.PW1/2, copy of ration card Ex.PW1/3, mark-sheet of 10th class of the deceased Ex.PW1/4, her election I-card Ex.PW1/5, her aadhar card Ex.PW1/6, death certificate of father of the deceased Ex.PW1/7, pay slip of the deceased Mark 'A'.
13. Kuldeep, pillion rider, appeared as PW-1 in Suit No. 252/16 (Old No. 76/14) and as PW-2 in Suit No. 311/16 (Old No. 72/14). He filed his evidence by way of an affidavit. He deposed Suit No 311/2016 Kaushlya Devi vs Sunny Chhabra & Ors. 5 of 20 about the sequence of events leading to the accident. He sustained injury in the accident. He relied on criminal case record Ex.PW1/1, medical bills worth Rs. 16,790/-(colly) Ex.PW1/2, employees Identity-card Ex.PW1/3, aadhar card Ex.PW1/4, election I-card Ex.PW1/5 and salary slip Mark 'A'.
14. The respondent No. 2 (R2W1) filed her evidence by way of an affidavit Ex.R2W1/A wherein she reiterated the defence taken in her amended written statement.
15. The respondent No. 3 / insurer examined Ipsit Panda, Unit Sales Manager (R3W1). He filed his evidence by way of affidavit Ex.R3W1/A wherein he reiterated the defence taken by the insurer in its amended written statement. He relied on the current insurance policy Ex.R3W1/1, copy of policy issued from HDFC Ergo GIC Ltd. Ex.R3W1/2, details of policies issued by Vipin Kumar Ex.R3W1/3, Motor Insurance Proposal Form Ex.R3W1/4, e-mails received from HDFC Ergo GIC Ltd. Ex.R3W1/5, a copy of complaint vide DD No. 71B dated 08.10.2014 Ex.R3W1/6, copy of FIR No. 0246/15 under section 420/468/471 IPC at PS Lajpat Nagar Ex.R3W1/7 and copy of letter written to SI Amit Bhati Ex.R3W1/8. In his cross- examination, he stated that the case was handled and investigated by the claims department. He stated that he has no idea in respect of forgery of policy of HDFC Ergo GIC Ltd. He stated that he has no personal knowledge of the case. He stated that Vipin Kumar used to report him.
16. R3W2 Vivek Sharma, Manager (Investigation), ICICI Lombard GIC Ltd. filed his affidavit Ex.R3W2/A in evidence. He stated that during the investigation, through e-mails from Suit No 311/2016 Kaushlya Devi vs Sunny Chhabra & Ors. 6 of 20 previous insurer HDFC Ergo GIC Ltd., it transpired that the policy issued by HDFC Ergo GIC Ltd. for the period from 17.02.2013 to 16.02.2014 was forged and fabricated. He stated that besides e-mails, he has not done any investigation pertaining to forgery of insurance policy. He stated that the insurance policy issued by ICICI Lombard GIC Ltd. is genuine.
17. R3W3 Gautam Bhatnagar, Manager (Legal), ICICI Lombard GIC Ltd. filed his evidence by way of affidavit Ex.R3W3/A. In his cross-examination, he stated that he had not personally investigated the case. He stated that he has deposed that insurance policy Ex.R3W1/2 was a fake policy after checking the records. He stated that he got the investigation conducted through investigation department. He stated that the insurance policy issued by the respondent No. 3 for the period in question was valid. He stated that the offending vehicle was duly insured with ICICI Lombard GIC Ltd. on the date of the accident.
18. R3W4 Satyan Kapoor, Manager (Risk, Loss and Mitigation Unit), HDFC GIC Ltd. stated that the policy No. 2311200279389900000 for the period from 17.02.2013 to 16.02.2014 Mark 'X' in the name of Ms. Indu Jain W/o Sh. Satender Kumar Jain (the respondent No. 2 herein) in respect of Hyundai Car No. UP 14 BW 1899 was never issued by his company from any branch office of Sector-62, Noida.
Contentions:
19. Sh. Kunwar Nagendra, Advocate for the petitioner submitted that PW-2 Kuldeep Singh was riding pillion on the motorcycle driven by the deceased. He submitted that PW-2 Suit No 311/2016 Kaushlya Devi vs Sunny Chhabra & Ors. 7 of 20 Kuldeep Singh sustained grievous injury in the accident. He submitted that PW-2 Kuldeep Singh proved that the respondent No. 1 was driving the offending vehicle rashly and negligently and while driving so, he caused grievous injury to him and death of the deceased. He submitted that the deceased was employed in Escorts Tractor Ltd., Faridabad, Haryana at Rs. 10,000/- per month. He submitted that the deceased was a bachelor and he was survived by his parents. He submitted that the father of the deceased expired on 21.08.2014 during inquiry. He submitted that the injured Kuldeep Singh sustained grievous injury and he remained under treatment for two months. He submitted that Kuldeep Singh spent Rs. 16,970/- on his treatment besides loss of income for two months. He submitted that Kuldeep Singh was employed in Escorts Tractor Ltd., Faridabad, Haryana at monthly salary of Rs. 10,000/- per month. He prayed for grant of just and reasonable non-pecuniary damages.
20. Sh. Sushil Kumar, Advocate for the respondent No. 1 / driver submitted that the respondent No. 1 has not caused any accident. He submitted that the respondent No. 1 was falsely implicated in this case. He submitted that the respondent No. 1 was holding a valid and effective driving license and the offending vehicle was duly insured with the respondent No. 3 for the period in question.
21. Sh. Nimish Chib, Advocate for the respondent No. 2 submitted that the offending vehicle was insured with Future Generali India Ltd. at the time of its purchase for the period from 25.09.2012 to 24.09.2013 and thereafter, the offending vehicle remained uninsured from 25.09.2013 to January, 2014. He Suit No 311/2016 Kaushlya Devi vs Sunny Chhabra & Ors. 8 of 20 submitted that the respondent No. 2 taken out insurance policy for the period 17.02.2014 to 16.02.2015 from the respondent No.
3. He submitted that the respondent No. 3 had issued the insurance policy after mechanical inspection of the offending vehicle. He submitted that the insurance policy Mark 'X' was not provided by the respondent No. 2 to the respondent No. 3. He submitted that the respondent No. 3 has not cancelled the insurance policy and the insurance policy issued by the respondent No. 3 was valid on the date of the accident. He submitted that the respondent No. 2 has neither been made accused in the FIR allegedly registered against Vipin Kumar and Ram Kumar nor summoned by any Court of law. He submitted that the respondent No. 3 is liable to indemnify the liability of the insured, if any, determined by the Tribunal.
22. Sh. S.K. Sharma, Advocate for the respondent No. 3 / insurer submitted that the previous policy issued by HDFC Ergo GIC Ltd. for the period from 17.02.2013 to 16.02.2014 as furnished by the respondent No. 2 was a fake policy. He submitted that the insurance policy obtained by the respondent No. 2 on the basis of the said fake policy from the respondent No. 3 by representation of false facts and therefore, it is void ab initio. He submitted that criminal case registered in that regard is under investigation. He prayed for exoneration.
Suit No. 311/16 (Old No. 72/14) and 252/16 (76/14):
Issue No. 1:
23. PW-2 Kuldeep Singh was a pillion rider. He deposed, on the strength of affidavit Ex.PW2/A, the sequence of events leading to the accident. He categorically deposed that on Suit No 311/2016 Kaushlya Devi vs Sunny Chhabra & Ors. 9 of 20 18.02.2014, he alongwith Mahipal (the deceased) was going to Jewar from Noida. Mahipal was driving the motorcycle No. HR 51 AU 0278 in a slow speed and he was sitting as a pillion rider.
He deposed that at about 11.30 a.m., when they reached on Yamuna Express-way in front of Vill. Dankaur, Greater Noida, the offending vehicle driven rashly and negligently came and hit the said motorcycle. He stated that he alongwith Mahipal sustained grievous injuries and taken to Kailash Hospital where Mahipal died during the treatment. PW-2 Kuldeep Singh was cross- examined by the respondents. However, they could not elicit anything from his cross-examination. His statement was recorded by Investigating Officer on 18.02.2014 in Kailash Hospital. There is nothing in his cross-examination which can render him not worthy of credit. The respondent No. 1 did not depose his account of the accident. The respondent No. 3 has not examined the respondent No. 1 to elicit his version of the accident. The evidence of PW-2 Kuldeep Singh remained unchallenged. Site plan of the place of the accident would show that the offending vehicle had hit the motorcycle from behind in the last lane. The respondent No. 1 has not deposed as to why he could not avoid the accident. The respondent No. 1 has also not stated as to why he entered into the last lane usually meant for two wheelers and bicycles.
24. From the uncontroverted evidence of PW-2 Kuldeep Singh, it is evident that the respondent No. 1 / driver had hit the motorcycle of the deceased from behind in the last lane of the road. In the absence of any explanation from the respondent No. 1 as to why he entered into the last lane and had hit the Suit No 311/2016 Kaushlya Devi vs Sunny Chhabra & Ors. 10 of 20 motorcycle of the deceased, inference of rash and negligent driving of the offending vehicle by the respondent No. 1 can be legitimately drawn.
25. From the medical evidence Ex.PW1/2, it is evident that PW-2 Kuldeep Singh was admitted in Kailash Hospital on 18.02.2014 at 12.18.48 p.m. and discharged on 20.02.2014.
26. From the post-mortem report of the deceased, it is evident that the deceased had as many as 19 multiple injuries on his face and other parts of body. Cause of death of the deceased was cerebral damage.
27. Therefore, it is proved that the deceased suffered death and PW-2 Kuldeep Singh suffered injuries due to rash and negligent driving of the offending vehicle by the respondent No. 1 / driver.
28. Accordingly, issue No. 1 is decided in favour of the petitioners and against the respondents.
Suit No. 311/16 (Old No. 72/14):
Issue No. 2:
ii) Whether the petitioners are entitled for any compensation, if so, to what amount and from whom?
(OPP)
29. Smt. Kaushalya Devi is mother of the deceased. Her husband Subey Ram died during inquiry. She has a cause of action to seek compensation for death of her son. Assessment of income:
30. PW-1 Kaushalya Devi, mother of the deceased, deposed in her affidavit that the deceased was 21 years of age and he was employed with M/s Escorts Tractor Ltd., Faridabad, Haryana at salary of Rs. 10,000/- per month. She placed on Suit No 311/2016 Kaushlya Devi vs Sunny Chhabra & Ors. 11 of 20 record a computer generated pay-slip Mark 'A'. She has not examined the employer of the deceased. She has not summoned the relevant record to prove the status, avocation, salary and nature of employment from the employer of the deceased. Mere production of a computer generated pay-slip is not sufficient to prove the employment and salary of the deceased. (Ref: Meera & Anr. versus Oriental Insurance Co. Ltd., MAC APP. 722/2017 decided on 18.08.2017, The Oriental Insurance Co. Ltd. versus Shashi Kant & Ors., MAC APP 896/2016 decided on 05.07.2017 and Vijay Kumar Singh & Ors. versus The Oriental Insurance Co. Ltd., MAC APP. 418/2015 decided on 09.05.2016).
31. In the absence of formal evidence of avocation and income of the deceased, the income of the deceased can be assessed on the benchmark of minimum wages.
32. The deceased was a native of Vill. Mahawatpur, Faridabad, Haryana. He was working for gain in Haryana. Minimum wages as applicable in Haryana at the relevant time would be the benchmark. The deceased was a non-matriculate vide mark-sheet Ex.PW1/4. There is no category of non- matriculate in Haryana. Minimum wages of non-matriculate is equivalent to semi-skilled worker in Delhi. This principle can be applied for assessment of income of the deceased.
33. On this principle, income of the deceased is assessed as Rs. 5,677.10/- being minimum wages as payable to semi- skilled worker, category 'A'. In the absence of any evidence that the deceased had any special skill or experience, his income can't be assessed as that of a semi-skilled worker, category 'B'.
Suit No 311/2016 Kaushlya Devi vs Sunny Chhabra & Ors. 12 of 20 Deduction for personal and living expenses:
34. Since the deceased was a bachelor, 50% of income can be deducted towards personal and living expenses of the deceased. (Ref: Sarla Verma versus DTC (2009) 6 SCC 121). Application of multiplier:
35. The deceased was a bachelor. In view of the binding precedents of Supreme Court in G.M. Kerela SRTC vs Susamma Thomas (1994) 2 SCC 176, U.P.S.R.T.C. vs Trilok Chandra (1996) 4 SCC 362 and National Insurance Company Limited vs. Mohammed Siddique & Ors., MAC APP.431/2016, decided on 18th July, 2017, it is the age of the deceased or that of the claimants, whichever is higher, which form the basis of the multiplier to be adopted. The prime claim is on behalf of the parents of the deceased.
36. According to Voter's I-card Ex.PW1/5, age of the petitioner (mother) was 33 years on 01.01.1994. The date of death of the deceased is 18.02.2014. Therefore, the age of the petitioner (mother) was 53 years at the time of death of the deceased and therefore, multiplier of 11 as applicable to age group between 51-55 years would apply.
Future prospects:
37. In the absence of any evidence regarding regular employment and income of the deceased, and periodic rise of the income of the deceased, the element of future prospects of increase cannot factor. (Ref: Sunil Kumar versus Pyar Mohd., Suit No 311/2016 Kaushlya Devi vs Sunny Chhabra & Ors. 13 of 20 MAC APP. 956/2012 decided on 22.01.2016).
Loss of dependency:
38. Applying the multiplier of 11 after deducting 50% from the notional income of the deceased, loss of dependency is computed as (5,677.10 x 1/2 x 12 x 11) = 3,74,688.60/- (rounded of) Rs. 3,75,000/-.
Non-pecuniary (general) damages:
39. Having regard to the date of death (18.02.2014), the petitioner is awarded Rs. 1,50,000/- towards loss of love and affection. She is awarded Rs. 50,000/- each towards loss of estate and funeral expenses. (Ref: Shri Ram General Insurance Co. Ltd. versus Usha & Ors., MAC APP. 160/2015 decided on 05.05.2016).
Suit No. 252/16 (Old No. 76/14):
Issue No. 2:
ii) To what amount of compensation, if any, the petitioner is entitled to and from whom?
(OPP)
40. The petitioner / Kuldeep sustained injuries in the accident. He has a cause of action to seek compensation for the injuries sustained by him. He is seeking loss of income for two months besides medical expenses of Rs. 1,00,000/- and non- pecuniary damages in the form of special diet and conveyance as Rs. 25,000/- and Rs. 10,000/- respectively. Pain and sufferings:
41. The petitioner / Kuldeep has not placed his discharge summary. From the final bill Ex.PW1/2, it is seen that he remained hospitalised in Kailash Hospital, Greater Noida since 18.02.2014 to 20.02.2014. He had undergone suturing of Suit No 311/2016 Kaushlya Devi vs Sunny Chhabra & Ors. 14 of 20 multiple small / single major wound and suturing of large laceration. He has not suffered any grievous injury. In view of the fact that he remained admitted for three days and undergone suturing of wound and large laceration, he is awarded Rs. 25,000/- towards pain and sufferings.
Medical expenses:
42. The petitioner / Kuldeep Singh proved medical bills of Rs. 16,390/- Ex.PW1/2. Accordingly, the petitioner / Kuldeep Singh is awarded Rs. 17,000/- towards medical expenses. Loss of income:
43. The petitioner / Kuldeep Singh stated, in his affidavit Ex.PW1/A, that he suffered loss of income for two months. From the medical evidence, as discussed above, it can be stated that the nature of the injuries sustained by him was not grievous. He was discharged after suturing / stitching of one major wound and large laceration. He was treated as OPD patient on 25.02.2014.
It was noted in the OPD card that wounds were healed well. He was called for review after 10 days. There is nothing on record that he could not work for two months. In the opinion of the Tribunal, he is entitled to be awarded loss of income for 15 days.
44. The petitioner / Kuldeep Singh stated that he was employed in M/s Escorts Tractor Ltd., Faridabad, Haryana at salary of Rs. 10,000/- per month. In his petition, he stated that he was drawing salary of Rs. 8,000/- per month. He relied on a computer generated pay-slip Ex.PW1/6. In the absence of formal evidence regarding his avocation and income, his income Suit No 311/2016 Kaushlya Devi vs Sunny Chhabra & Ors. 15 of 20 is notionally assessed on the benchmark of minimum wages as payable to an unskilled worker in Haryana at the relevant time. Accordingly, monthly income of the claimant is notionally assumed as Rs. 5,547.10/-, it being the minimum wages payable to an unskilled worker at the relevant time.
45. Accordingly, the petitioner / Kuldeep Singh is awarded (5,547.10 / 2) 2,773.55/- (rounded of) Rs. 3,000/- towards loss of income for 15 days.
Special diet and conveyance:
46. The petitioner / Kuldeep Singh is awarded Rs. 10,000/- towards special diet and Rs. 5,000 towards conveyance. Liability:
47. The case of the respondent No. 3 was that the current policy was taken out by the respondent No. 2 / registered owner on the basis of a fake policy issued by HDFC Ergo GIC Ltd. The case of the respondent No. 2 was that she had not furnished any policy for taking out the current policy from the respondent No. 3. It is the admitted case of the respondent No. 3 that Vipin Kumar, trainee had issued the current policy in collusion with Ram Kumar, an insurance agent. R3W1 Ipsit Panda admitted that Vipin Kumar used to report him. He has no personal knowledge of the case.
48. There is no explanation as to why R3W1 Ipsit Panda or any other officer of the respondent No. 3 did not verify about the policy issued by HDFC Ergo GIC Ltd. at the time of issuing the current policy in favour of the respondent No. 2. R3W1 Ipsit Panda stated that he came to know about the fact that the previous policy was a fake policy after filing of the claim. There is Suit No 311/2016 Kaushlya Devi vs Sunny Chhabra & Ors. 16 of 20 no explanation as to why no verification was undertaken immediately after issuance of the current policy. It is the admitted case of the respondent No. 3 that the respondent No. 2 has not been made accused in FIR No. 246/15 under section 420/468/471 IPC registered at PS Lajpat Nagar against Vipin Kumar and Raj Kumar. R3W2 Vivek Sharma, Manager (Investigation) and R3W3 Gautam Bhatnagar, Manager (Legal) categorically stated that the policy issued by the respondent No. 3 is genuine and valid. From the evidence adduced by the respondent No. 3, it is evident that none of its witness dealt with the proposal form submitted the respondent No. 2. Its case is built upon e-mails received from HDFC Ergo GIC Ltd. Ex.R3W1/5. They were not in position to state whether the offending vehicle mechanically inspected before issuance of the policy. The respondent No. 3 has not examined Vipin Kumar to prove that he had not mechanically inspected the vehicle and a fake insurance policy was furnished by the respondent No. 2.
49. Even otherwise, fabrication of a document purporting to be an insurance policy for earlier period cannot render the insurance cover issued for relevant period in operative. (Ref:
Reliance General Insurance Co. Ltd. versus Suresh Kumar & Ors., MAC APP. 896/2014 decided on 09.05.2016).
50. The insurance policy issued by the respondent No. 3 was valid and operative on the date of the accident (18.02.2014) for the period from 17.02.2014 to 16.02.2015. The respondent No. 3 has not pleaded breach of any term and condition of insurance policy. The respondent No. 3 / insurer is liable to indemnify the liability of the respondent No. 2 / insured.
Suit No 311/2016 Kaushlya Devi vs Sunny Chhabra & Ors. 17 of 20 Suit No. 311/16 (Old No. 72/14):
AWAR D
51. The respondent No 3 / insurer is directed to pay compensation to the petitioner (Smt. Kaushalya Devi) in the sum of Rs. 6,25,000/- alongwith interest @ 9% p.a. from the date of filing of the petition (31.03.2014) till the date of award and in case, it fails to make payment within 30 days, it would be liable to pay the award amount alongwith interest @ 9% p.a. from the date of filing of the petition till realization. (Ref: Oriental Insurance Co. Ltd. vs Sangeeta Devi, MAC APP 165/2011 decided on 22.02.2016).
Final directions:
52. The petitioner was examined under Clause 26 of Modified Claim Tribunal Agreed Procedure (MCTAP) regarding her monthly financial need. Final direction regarding the protection of the award amount will be passed on deposit of the award amount in accordance with the direction dated 13.02.2017 in FAO 842 / 2003 in the case of Rajesh Tyagi & Ors. vs Jaibir Singh & Ors.
by Hon'ble High Court of Delhi.
Suit No. 252/16 (Old No. 76/14):
AWAR D
53. The respondent No 3 / insurer is directed to pay compensation to the petitioner (Kuldeep Singh) in the sum of Rs.
60,000/- alongwith interest @ 9% p.a. from the date of filing of the petition (04.04.2014) till the date of award and in case, it fails to make payment within 30 days, it would be liable to pay the award Suit No 311/2016 Kaushlya Devi vs Sunny Chhabra & Ors. 18 of 20 amount alongwith interest @ 9% p.a. from the date of filing of the petition till realization. (Ref: Oriental Insurance Co. Ltd. vs Sangeeta Devi, MAC APP 165/2011 decided on 22.02.2016). Copy of Award be given to the parties.
54. File be consigned to record room.
Announced in the open Court Sh. Sanjay Sharma Dated: 26th August, 2017 Presiding Officer MACT (East) Karkardooma Courts, Delhi.
Suit No 311/2016 Kaushlya Devi vs Sunny Chhabra & Ors. 19 of 20 Suit No. 311/16 & 252/16 26.08.2017 Present : Sh. Kunwar Nagendra, Advocate for the petitioners.
Sh. Sushil Kumar, Advocate for R1 / driver. Sh. Nimish Chib, Advocate for R2 / owner.
Sh. S.K. Sharma, Advocate for R3 / Insurance Co.
It is 4.00 p.m. Vide separate judgment, award is passed. To come up for compliance on 27.09.2017.
Sanjay Sharma PO MACT (East)/KKD Delhi/26.08.2017.
Suit No 311/2016 Kaushlya Devi vs Sunny Chhabra & Ors. 20 of 20