Delhi District Court
Sh.Khursheed vs Sh.Sushil Kumar on 7 May, 2014
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IN THE COURT OF SH.HARISH DUDANI
JUDGE:MOTOR ACCIDENT CLAIMS TRIBUNAL 1 NEW DELHI
SUIT NO.:21/11
DATE OF INSTITUTION:1.4.2010
1. Sh.Khursheed
S/o Md.Anwar
2. Smt.Mehmoona
W/o Sh.Khursheed
R/o Moh.Banjaran,Rampur Maniharan
Saharanpur, UP. Petitioners
Versus
1.Sh.Sushil Kumar
S/o Sh.Harpal Singh
R/o H.No.12/323, Kalyan Puri
Delhi110091.
2. Sh.R.Rajesh
S/o Sh.S.Ramkrishan
R/o C1/44A, Pocket C1
Mayur Vihar, Phase III, Delhi.
3. Sh.Tajuddin
S/o Sh.Abdul Mazid
R/o A3/128, New Kondli,Delhi.
4.The Oriental Insurance Company Limited
H.O.A25/27, Asaf Ali Road
New Delhi110002. Respondent
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SUIT NO.:17/11 DATE OF INSTITUTION: 14.5.2010 Ms.Nilofer @ Farzana D/o Sh.Mohd.Islam R/o D499,West Vinod Nagar Delhi. Petitioner SUIT NO.:18/11 DATE OF INSTITUTION: 14.5.2010 Sh.Islam Malik S/o Sh.Mohd.Ikram R/o D499, West Vinod Nagar Delhi. Petitioner SUIT NO.:19/11 DATE OF INSTITUTION: 14.5.2010 Master Sameer (Minor through his father/natural guardian) S/o Sh.Islam Malik R/o D499, West Vinod Nagar Delhi. Petitioner Versus
1. M/s Oriental Insurance Co.
Office At:A25/27, Asaf Ali Road Dariya Ganj, Delhi.
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2. Sh.R.Rajesh S/o Sh.Ram Krishan R/o C1/44A, PocketC1 Mayur Vihar, PhaseIII, Delhi.
3. Sh.Sushil Kumar S/o Sh. Harpal Singh R/o 12/323, Kalyan Puri Delhi. Respondents Final Arguments heard on : 23.4.2014.
Award reserved for : 07.5.2014. Date of Award : 07.5.2014. AWARD
1. Vide this judgment cum award I proceed to decide the petitions bearing no.17/11,18/11,19/11 and 21/11 filed by the petitioners U/s 166 and 140 of Motor Vehicle Act, 1988, as amended up to date (hereinafter referred to as the Act) for grant of compensation in a road accident.
2. Briefly stated the facts giving rise to the petitions are that on 22.2.2010 Ms.Nilofer @ Farzana (petitioner in suit no.17/11), Sh.Islam Malik (petitioner in suit no.18/11), Master Sameer(petitioner in suit no.19/11) and Sh.Afzal were travelling in RTV no.DL1VA0920 from Laxmi Nagar to India Gate which was being driven by Sh.Sushil Kumar and at about 10.15pm they reached at Tilak Marg Bhagwandas Road chowk and driver of the RTV no.DL1VA0920 took a sharp turn towards right side at a high speed in a rash and negligent manner as a result of which the RTV hit the 4 pavement and overturned as a result of which the petitioners sustained injuries. The injured Ms.Nilofer @ Farzana, master Sameer and Sh.Afzal were taken to RML hospital where injured Sh.Afzal expired during the course of treatment. Injured Sh.Islam Malik was taken to LNJP hospital.
3. It is stated in the claim petition no.21/11 that Sh.Afzal was 18 years of age at the time of accident and he was doing his personal business and was earning a sum of Rs. 35000/ per month.
4. It is stated in the claim petition no.17/11 that Ms.Nilofer @ Farzana was 19 years of age at the time of accident and was doing stitching work and was earning Rs.6000/pm.
5. It is stated in the claim petition no. 18/11 that Sh.Islam Malik was 38 years of age at the time of accident and he was working as painter with M/s Khanna and sons and was earning a sum of Rs.9000+Rs.3000 over time per month.
6. It is stated in the claim petition no. 19/11 that Master Sameer was 8 years nd of age at the time of accident and he was studying in 2 standard.
7. It is stated that the accident took place due to rash and negligent driving of the offending vehicle driven by Sh.Sushil Kumar(R1 in suit no.21/11 & R3 in suit no.17/11,18/11,19/11), owned by Sh.R.Rajesh(R2) and insured with The Oriental Insurance Company Ltd.(R4 in suit no.21/11 & R1 in suit no.17/11,18/11,19/11) and as such all the respondents are 5 jointly and severally liable to pay compensation to the petitioners. It is stated that vehicle was got released on superdari by Sh.Tajuddin (respondent no.3 in suit no.21/11).
8. In suit no.21/11 it is prayed that Rs. Twenty Five Lacs be awarded as compensation in favour of petitioners against the respondents. In suit no. 17/11 it is prayed that Rs.Ten Lacs be awarded as compensation in favour of petitioner against the respondents. In suit no. 18/11 it is prayed that Rs.Ten Lacs be awarded as compensation in favour of petitioner against the respondents. In suit no.19/11 it is prayed that Rs.Ten Lacs be awarded as compensation in favour of petitioner and against the respondent.
9. Sh.Sushil Kumar driver has filed written statement in suit no.21/11 and has contested the petitions. It is stated that petitioner is not entitled to claim compensation as the respondent has been falsely implicated by the petitioner to get compensation amount and the claim petition is liable to be dismissed. It is stated that the insurance company is liable to pay compensation to the petitioners being insurer of the alleged offending vehicle. Other averments on merit are denied.
10.Sh.R.Rajesh owner has filed written statement and has contested the petitions. It is stated that offending vehicle no.DL1VA0920 was sold by Sh.R.Rajesh to Sh.Tajuddin(R3 in suit no.21/11) on 8.12.2008 vide 6 Agreement to Sell, affidavit and form no.30 and 29. Other averments on merit are denied.
11.Sh.Tajuddin(R3 in suit no.21/11) has filed written statement and has contested the petitions. It is stated that the petition is not maintainable either in law or on facts as it is not signed/ verified and has been filed without relevant documents/receipts and on this ground this petition is liable to be dismissed. It is stated that the insurance company is liable to pay compensation to the petitioners being insurer of the offending vehicle. Other averments on merit are denied.
12.Insurance company has filed written statement and has contested the petitions. It is admitted that offending vehicle was insured with the insurance company. Other averments on merit are denied.
13.From the pleading of the parties following issues were framed in suit no. 21/11 by my Ld.Predecessor on 11.8.2011.
1.Whether the deceased sustained fatal injuries in the accident which occurred on 22.2.2010 at Red Light at Tilak Marg, Bhagwan Dass Road, New Delhi due to rash and negligent driving of vehicle no.DL1VA0920 by respondent no.1, owned by respondent no.2 and insured with respondent no.4?.OPP.
2.Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
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3.Relief.
14.As the petitions no.21/11,17/11,18/11 and 19/11 arise out of the same accident, they were consolidated for the purpose of trial and decision vide order dated 3.4.2013.
15.From the pleadings of parties following issues were framed on 3.4.2013 in suit no.17/11,18/11 and 19/11.
1.Whether the petitioners Sameer, Islam Malik and Nilofer@ Farzana sustained fatal injuries in the accident which occurred on 22.2.2010 at about 22.15 hours near Tilak Marg crossing, Bhagwan Dass Road caused by rash and negligent driving of vehicle no.DL1VA0920 by respondent no.3, owned by respondent no.2 and insured with respondent no.1?.OPP.
2.Whether the petitioners are entitled for compensation? If so, to what amount and from whom?
3.Relief.
16.In support of their claim the petitioners in claim petition no.21/11 examined Sh.Khursheed/petitioner no.1 as PW1. He tendered in examination in chief his affidavits which are Ex. PW1/1 and Ex.PW1/1A. PW1 proved documents Ex.PW1/A to Ex.PW1/M.
17.In support of his claim the petitioner Sh.Islam Malik( petitioner in claim petition no.18/11) examined himself as PW2. He tendered in examination 8 in chief his affidavit which is Ex.PW2/A. PW2 proved certified copies of criminal record and medical record Ex.PW2/1(colly.), original medical bills Ex.PW2/2(colly.), salary certificate Ex.PW2/3 and copy of election identity card Ex.PW2/4.
18.In support of his claim the petitioner Sh.Sameer( petitioner in claim petition no.19/11) examined his father as PW2 who tendered in examination in chief his affidavit which is Ex.PW2/B. PW2 proved bill of treatment of his son Ex.PW2/5.
19.In support of her claim the petitioner Ms.Nilofer @ Farzana (petitioner in claim petition no.17/11) examined herself as PW3. She tendered in examination in chief her affidavit which is Ex.PW3/A. PW3 proved copies of criminal record Ex.PW3/1(colly.) and medical bill Ex.PW3/2.
20.Insurance company examined Sh.Rakesh Tiwari, Record keeper, Licensing Authority, Mayur Vihar, Phase1, Delhi as R4W1 who brought record in respect of D/L no.0720000001261 in the name of Sh.Sushil Kumar s/o Sh.Harpal Singh and same is Ex.R4W1/1.
21.Insurance company examined Sh.V.D.Talwar, Admn.Officer as R4W2 who tendered his affidavit in examination in chief as Ex.R4W2/A. R4W2 proved copy of D/L of Sh.Sushil Kumar driver of offending vehicle Ex.R4W2/1, report of investigator Sh.Ajay Kumar Jain Ex.R4W2/2, report of Mayur Vihar, Delhi, Licensing Authority Ex.R4W2/3, notices u/o 12 rule 9 8 CPC alongwith postal receipts Ex.R4W2/4(colly.), attested copy of insurance policy Ex.R4W2/5(colly.).
22.I have heard the Ld. Counsel for the parties and perused record. My findings on various issues are as under:
ISSUES NO. 1 :
23.As the petitions have been filed U/s 166 Motor Vehicle Act it was incumbent upon the petitioners to prove that the accident was caused due to the rash and negligent driving of the vehicle no.DL1VA0920 by driver Sh.Sushil Kumar .
24.To determine the negligence of driver of offending vehicle it has been held in National Insurance Company Ltd. V/s Pushpa Rana & Another 2009 Accident Claims Journal 287 as follows:
"The last contention of the appellant insurance company is that the respondentsclaimants should have proved negligence on the part of the driver and in this regard the counsel has placed reliance on the judgment of the Hon'ble Apex Court in Oriental Insurance Company Ltd. V. Meena Variyal(supra). On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced:(i) certified copy of the criminal record of criminal case in FIR no. 955 of 2004, pertaining to involvement of offending vehicle (ii) criminal record showing completion of investigation of police and issue of charge sheet under sections 279/304A , Indian Penal Code against the driver; (iii) certified copy of FIR, wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle 10 and vehicle of deceased. These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under the Motor Vehicle Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Hence, this contention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on part of the driver."
25. The case of the petitioners is that on 22.2.2010 Ms.Nilofer @ Farzana (petitioner in suit no.17/11), Sh.Islam Malik (petitioner in suit no.18/11), Master Sameer(petitioner in suit no.19/11) and Sh.Afzal were travelling in RTV no.DL1VA0920 from Laxmi Nagar to India Gate which was being driven by Sh.Sushil Kumar and at about 10.15pm they reached at Tilak Marg Bhagwandas Road chowk and driver of the RTV no.DL1VA0920 took a sharp turn towards right side at a high speed in a rash and negligent manner as a result of which the RTV hit the pavement and overturned as a result of which the petitioners sustained injuries. The injured Ms.Nilofer @ Farzana, master Sameer and Sh.Afzal were taken to RML hospital where injured Sh.Afzal expired during the course of treatment. Injured Sh.Islam Malik was taken to LNJP hospital. It is stated that case vide FIR No.49/2010, u/s 279/337 IPC was registered at PS Tilak Marg. Injured Sh.Islam Malik(petitioner in suit no.18/11) appeared in the witness box as PW2 and adduced evidence by way of affidavits Ex.PW2/A and Ex.PW2/B, injured Ms.Nilofer @ Farzana(petitioner in suit 11 no.17/11) appeared in the witness box as PW3 and adduced evidence by way of affidavit Ex.PW3/A and Sh.Khurshid(petitioner no.1 in suit no. 21/11) father of deceased Sh.Afzal appeared in the witness box as PW1 and adduced evidence by way of affidavit Ex.PW1/1. In their affidavits the petitioners have reiterated the manner of accident as stated in the claim petition. In his written statement filed in suit no.21/11 Sh.Sushil Kumar driver has stated that he has been falsely implicated in this case. In para 10 of reply on merits in the written statement filed in suit no.21/11 Sh.Sushil Kumar driver has stated that respondent no.1(Sh.Sushil Kumar) was driving the vehicle at the time of accident. In para 15 of reply on merits of written statement filed in suit no.21/11 Sh.R.Rajesh/ owner has stated that he is not the owner of the offending vehicle and the offending vehicle was sold by Sh.R.Rajesh/ to Sh.Tajuddin(respondent no.3 in suit no.21/11) on 8.12.2008 vide agreement to sell, affidavit and Form No.29 and 30. Sh.Tajuddin(respondent no.3 in suit no.21/11) has filed written statement and has stated in para B of preliminary objections of written statement that the petition is not maintainable as the same has been filed without relevant documents/receipts and on that ground alone the petition is liable to be dismissed. Driver Sh.Sushil Kumar and registered owner Sh.R.Rajesh have preferred to remain exparte and have not cross examined PW2 Sh.Islam Malik and PW3 Ms.Nilofer @ Farzana 12 who are witnesses of spot. Counsel for insurance company has also not put any question to PW2 and PW3 on the manner of accident. The petitioners have filed on record the certified copies of FIR, copy of statement of Sh.Ashiq on the basis of which asal tehrir was prepared, copy of site plan, copy of arrest memo of Sh.Sushil Kumar driver, copy of driving license of Sh.Sushil Kumar driver, copy of registration certificate of the offending vehicle as per which Sh.R.Rajesh is the registered owner, copy of insurance policy of offending vehicle which has been issued in the name of Sh.R.Rajesh, copy of permit of offending vehicle issued in the name of Sh.R.Rajesh, copy of mechanical inspection report of the offending vehicle, copy of MLC of Afzal prepared at RML hospital, copy of post mortem report of Sh.Afzal prepared at Lady Hardinge Medical College and Smt.S.K.hospital, copy of MLC of Master Sameer prepared at RML hospital , casualty card of Sh.Islam prepared at LNJP hospital and discharge summary of Ms.Nilofer @ Farzana prepared at RML hospital. As per FIR the case was registered on the basis of complaint of Sh.Ashiq where in he has reiterated the manner of accident as stated in the claim petition. Driver and owner have not proved any other version of the accident. In view of the testimony of petitioners and documents on record, petitioners have prima facie proved that the accident was caused due to rash and negligent driving of offending vehicle by Sh.Sushil 13 Kumar. Issues no.1 is decided accordingly in favour of petitioners and against the respondents.
ISSUE NO. 2
26.As issues no.1 has been decided in favour of the petitioners they are entitled to compensation.
COMPENSATION IN SUIT NO.21/11
27.Petition has been filed by petitioner no.1 father of deceased and petitioner no.2 mother of deceased.It is stated in the claim petition that Sh.Afzal deceased was 18 years of age at the time of accident. In order to prove the age of deceased petitioners have filed copy of the Scholars Register & Transfer Certificate Form, issued by Jain Inter College, Rampur Maniharan, Saharanpur as per which the date of birth of deceased was 15.2.1991 hence deceased was about 19 years of age at the time of accident. In view of judgment of Hon'ble High Court in The Oriental Insurance Company Ltd. v. A.K.Puri & Ors.,M.A.C.APP. No. 196/13, the multiplier shall be applicable as per age of deceased. As the deceased was about 19 years of age at the time of accident the appropriate multiplier applicable as per Sarla Verma and Ors. vs Delhi Transport Corporation and Another (2009) 6 SCC 121 shall be of 18.
28.It is stated in the claim petition that deceased was in personal business and was earning a sum of Rs.35000/pm. In para 5 of affidavit 14 Ex.PW1/1A Sh.Khursheed has stated that Sh.Afzal was operating the milk dairy in Rampur Maniharan, Saharanpur, UP and the whole work of the dairy was in the hands of deceased and deceased was earning more than Rs.35000/pm from the said dairy business. PW1 Sh.Khursheed stated in the cross examination by counsel for insurance company that he is doing dairy business and said business is continuing at present and his son Saddam is helping him in the dairy business and his two other sons are studying. The petitioners have not filed any document of avocation and of income of deceased. The petitioners have pleaded that deceased was doing the dairy business. Further PW1 stated in cross examination that the said business is continuing after the death of Sh.Afzal. During the course of examination on 26.3.2014 PW1/petitioner no.1 stated that he is in dairy business and is able to earn Rs.1000/ to Rs.3000/per day. The petitioners have not filed any document on record in order to prove that Sh.Afzal was independently running the dairy business and was earning any amount from the same and after his death the said business has been closed and on that account the petitioners have suffered financial loss. As per testimony of PW1 the dairy business of the petitioner is continuing after the death of Sh.Afzal. PW1 denied the suggestion of counsel for insurance company in the cross examination that Sh.Afzal was not doing dairy business and that is the reason they have not filed 15 the proof of his income. The petitioners have not proved by any cogent evidence that Sh.Afzal was in independent business and was earning any amount from the same. In the circumstances the income of Sh.Afzal shall be taken as per his qualifications. The petitioners have not proved the qualifications of Sh.Afzal. In the circumstances his income shall be taken as per minimum wages of non matriculate as on 1.2.2010 which was Rs. 5850/pm.
29.It is stated in the cross examination by PW1 that his son Sh.Afzal was unmarried. The deceased was a bachelor. In Sarla Verma and Ors. vs Delhi Transport Corporation and Another (2009) 6 SCC 121 it was held by Hon'ble Supreme Court that :
"31.Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent/s and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependant on the father."16
30.In view of the above judgment, 50% is to be deducted towards personal and living expenses and after deduction of 50% , the income of deceased would be Rs.585050% of Rs.5850=Rs.2925/ per month.
31.In Rajesh and others V.Rajbir Singh and others, 2013 ACJ 1403, it has been held by Hon'ble Supreme Court that :
"11.Since the court in Santosh Devi's case, 2012 ACJ 1428(SC), actually intended to follow the principle in the case of salaried persons as laid down in Sarla Verma's case, 2009 ACJ 1298(SC) and to make it applicable also to selfemployed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30 percent always; it will also have a reference to the age. In other words, in the case of selfemployed or persons with fixed wages, in case the deceased victim was below 40 years, there must be an addition of 50 percent to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax,if any. Addition should be 30 percent in case the deceased was in the age group of 40 to 50 years."
32. The deceased was 19 years of age at the time of accident. Hence after addition of 50% income of deceased would be Rs.2925+50% of 2925/ =Rs.4387.5/ per month which is rounded off as Rs.4387/pm. After applying the multiplier of 18, the total loss of dependency is computed to be as Rs.4387x12x18=Rs.947592/. In Rajesh and others V.Rajbir Singh and others, 2013 ACJ 1403, Hon'ble Supreme Court has held that funeral expenses should be Rs.25,000/. Petitioners are also 17 awarded Rs.25,000/for loss of love and affection and Rs. 10,000/ towards loss of estate.
The total compensation is determined as under:
Loss of dependency : Rs. 947592/
Funeral Expenses : Rs. 25,000/
Loss of love and affection : Rs. 25,000/
Loss of Estate : Rs. 10,000/
TOTAL : Rs. 10,07,592/
RELIEF
33. The petitioners are thus awarded Rs.10,07,592/(Rs.Ten Lacs Seven Thousand Five Hundred Ninety Two only) with interest at the rate of 7.5% per annum in view of judgment of Hon'ble Supreme Court in Rajesh and others V.Rajbir Singh and others, 2013 ACJ 1403, from the date of filing of petition till its realisation including, interim award, if any already passed in favour of the petitioners and against the respondents. The liability of all the respondents being joint and several. Petitioner no. 1/father of deceased can not be considered a dependent on deceased in view of judgment of Sarla Verma and Ors. vs Delhi Transport Corporation and Another (2009) 6 SCC 121 and moreover father of deceased during the course of examination before the court on 26.3.2014 stated that he is in dairy business and he is able to earn Rs.1000/ to Rs. 18 3000/ per day. Entire amount is awarded to petitioner no.2/mother of deceased.
34.For safeguarding the compensation amount from being frittered away by the claimants, directions have been given by Hon'ble Supreme Court for preserving the award amount in the case of Jai Prakash Vs. National Insurance Co. Ltd. and Others (2010) 2 Supreme Court Cases 607. In view of the directions contained in the above judgments the award amount is to be disbursed as follows:
35. 10% of share of petitioner no.2 be released to her by transferring it into her savings account and remaining amount be kept in FDR in UCO Bank, Patiala House Court, New Delhi in following manner:
1. Fixed deposit in respect of 10% for a period of one year.
2. Fixed deposit in respect of 10% for a period of two years.
3. Fixed deposit in respect of 10% for a period of three years.
4. Fixed deposit in respect of 10% for a period of four years.
5. Fixed deposit in respect of 10% for a period of five years.
6. Fixed deposit in respect of 10% for a period of six years.
7. Fixed deposit in respect of 10% for a period of seven years.
8. Fixed deposit in respect of 10% for a period of eight years.
9. Fixed deposit in respect of 10% for a period of nine years.
36.The cheque be deposited in UCO Bank, Patiala House Court, New Delhi 19 in the name of UCO Bank, Patiala House Court, New Delhi A/c Smt.Mehmoona.
37.The interest on the fixed deposits shall be paid monthly by automatic credit in the saving accounts of the claimants/beneficiary.
38.Original fixed deposit receipt shall be retained by the Bank in safe custody. However, the original pass book shall be given to the claimant along with the photocopy of the FDR. Upon the expiry of period of FDR the bank shall automatically credit the maturity amount in the saving account of beneficiary.
39.The original fixed deposit receipt shall be handed over to the claimant at the end of the fixed deposit period and shall automatically credit the maturity amount in the savings account of the beneficiary.
40.No cheque book shall be issued to the claimant without permission of the court. No loan, advance or withdrawal shall be allowed on the fixed deposit without permission of the court.
41.Withdrawal from the aforesaid accounts shall be permitted to the beneficiary after due verification and the Bank shall issue photo identity card to the beneficiary to facilitate identity.
42. Bank shall transfer Savings Account to any other Bank/Branch according to her convenience.
43.The beneficiary shall furnish all the relevant documents for opening of the 20 Saving Bank Account and Fixed Deposit to Senior Manager of UCO Bank, Patiala House Court, New Delhi.
44.Nazir to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself.
45.The Oriental Insurance Company Ltd. shall deposit the award amount directly in bank account of the claimants at UCO Bank,Patiala House Court,New Delhi within 30 days of the passing of the award failing which it is liable to pay interest at the rate of 12% per annum for the period of delay.
46.The petitioners shall file two sets of photographs along with her specimen signatures, out of which one set to be sent to the Nodal Officer, UCO Bank, Patiala House Court, New Delhi along with copy of the award by Nazir and the second set be retained to the court for further reference. The photographs be stamped and sent to the bank. The petitioner shall also file the proof of residence and furnish the details of the bank account with the Nazir within a week. The petitioner shall file her complete address as well as address of her counsel for sending the notice of deposit of the award amount.
47.The Oriental Insurance Company Ltd.shall deposit the award amount alongwith interest upto the date of notice of deposit to the claimants with 21 a copy to her counsel and the compliance report shall be filed in the court alongwith proof of deposit of award amount, the notice of deposit and the calculation of interest on 24.7.2014.
COMPENSATION IN SUIT NO.19/11 MEDICINES AND MEDICAL TREATMENT
48.Sh.Islam Malik father of minor petitioner Master Sameer appeared in the witness box as PW2 and adduced evidence by way of affidavit Ex.PW2/B. It is stated that after the accident on 22.2.2010, the minor petitioner Master Sameer was taken to RML hospital from where he was discharged on the same day. The petitioners have filed on record the MLC of Master Sameer prepared at RML hospital as per which he was taken to the said hospital on 22.2.2010 at about 11.20pm. As per the MLC Master Sameer was given injection T.T. and injection voveron before being discharged from the hospital. The petitioners have filed one bill of Rs.97.92/. The petitioner is thus awarded a sum of Rs.98/ towards medical bill.
PAIN AND SUFFERING AND LOSS OF AMENITIES OF LIFE
49.It has been held in Divisional Controller, K. S. R. T. C Vs Mahadeva Shetty and another, AIR 2003 Supreme Court 4172 as under:
13."The damages for vehicular accidents are in the nature of compensation in money for less of any kind caused to any person. In case of personal 22 injury the position is different from loss of property. In the later case there is possibility of repair or restoration. But in the case of personal injury, the possibility of repair or restoration is practically nonexistent. In Parry V. Cleaver(1969 1 All. E. R. 555) Lords Morris stated as follows:
"To compensate in money for pain and for the physical consequences is invariably difficult, but...... no other process can be devised than that of making monitory assessment."
50. The case of the petitioner is that after the accident on 22.2.2010, the minor petitioner Master Sameer was taken to RML hospital from where he was discharged on the same day. The petitioners have filed on record the MLC of Master Sameer prepared at RML hospital as per which he was taken to the said hospital on 22.2.2010 at about 11.20pm. As per the MLC Master Sameer was given injection T.T. and injection voveron before being discharged from the hospital. On the MLC of minor petitioner prepared at RML hospital opinion on the nature of injury is given as "simple". Looking at the nature of injuries and extent of treatment, petitioner is awarded a sum of Rs. 7,000/ towards pain and suffering.
51.It is stated that the petitioner was a young boy of 8 years at the time of nd accident and was student of 2 standard. Looking at the nature of injuries notice can be taken of the fact that on account of injuries sustained the may not have been able to attend his school and may have been able to enjoy the amenities of life as a young boy. In the circumstances petitioner 23 is awarded a sum of Rs.3,000/ towards loss of amenities of life. CONVEYANCE AND SPECIAL DIET
52.In the claim petition and in affidavit Ex.PW2/B the father of minor petitioner has not stated that he incurred any expenditure on conveyance. The contention of counsel for insurance company is that the minor petitioner has not adduced any evidence to prove the expenditure on conveyance. Although the petitioner has not proved any document in order to prove expenditure on conveyance, however, looking at the nature of injuries notice can be taken of the fact that after the accident the petitioner was taken to RML hospital from where he was discharged on the same day and after discharge from the hospital the petitioner might have engaged the services of private conveyance as he may not have been able to use public conveyance. Although the petitioner has not proved that he had attended further treatment in respect of injuries sustained by him either in RML hospital or from any other medical expert. However notice can be taken of the fact that the petitioner might not have been able to use public conveyance and would have engaged services of private conveyance for commuting. In the circumstances Rs.2,000/ towards conveyance would be just and proper and is awarded accordingly.
53.In the claim petition and in affidavit Ex.PW2/B father of minor petitioner 24 has not stated that he incurred any expenditure on special diet. The contention of counsel for insurance company is that the petitioner has not proved that he was advised special diet and he has incurred expenditure on the same. Although the petitioner has not proved that he spent amount on special diet, however, looking at the nature of injuries sustained by the petitioner notice can be taken of the fact that the petitioner might have taken diet rich in protein, vitamins and minerals for speedy recovery and might have incurred expenses on the same. Thus the petitioner is awarded a sum of Rs.2,000/ towards special diet.
LOSS OF INCOME
54.It is stated in the claim petition that the petitioner was 8 years of age at nd the time of accident and was student of 2 standard. The petitioner has not proved that on account of his accident he could not attend his school or the duration for which he could not attend his school. As per MLC prepared at RML hospital petitioner was discharged after giving injection T.T. and injection voveron and nature of injury is given as "simple". In the circumstances no amount is being awarded for loss of income.
55. The petitioner has not proved that he has suffered any permanent disability due to this accident or the nature of injuries sustained by him were such that on account of said injuries, he may not be able to attend his school, perform his avocation in future or his efficiency will be reduced 25 and his capacity to earn will be affected. In the circumstances no amount is being awarded on account of future loss of income. The total compensation is assessed as under:
Medicines and Medical treatment : Rs.98/
Pain and suffering and loss of
Amenities of life : Rs.10,000/
Conveyance and Special Diet : Rs. 4,000/
Loss of income : NIL
TOTAL : Rs.14098/
RELIEF
56.The petitioner is awarded a sum of Rs.14098/(Rs.Fourteen Thousand Ninety Eight only) with interest at the rate of 7.5% per annum from the date of filing of petition till its realisation including, interim award, if any already passed against the respondents in favour of the petitioner. The entire award amount be kept in the form of FDR in a nationalized bank till the petitioner attains majority.
57.The Oriental Insurance Company Ltd. shall deposit the award amount directly in the bank account of the claimant at UCO Bank, Patiala House Court, New Delhi within 30 days of the passing of the award failing which it is liable to pay interest at the rate of 12% per annum for the period of delay.
58.Nazir to report in case the cheque is not deposited within 30 days of the 26 passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself. The petitioner shall file two sets of photographs along with his specimen signatures, out of which one set to be sent to the Nodal Officer, UCO Bank, Patiala House Court Complex, New Delhi along with copy of the award by Nazir and the second set be retained to the court for further reference. The photographs be stamped and sent to the bank. The petitioners shall also file the proof of residence and furnish the details of the bank account with the Nazir within a week. The petitioner shall file his complete address as well as address of his counsel for sending the notice of deposit of the award amount.
59.The Oriental Insurance Company Ltd. shall deposit the award amount alongwith interest upto the date of notice of deposit to the claimant with a copy to his counsel and the compliance report shall be filed in the court alongwith proof of deposit of award amount, the notice of deposit and the calculation of interest on 24.7.2014.
COMPENSATION IN SUIT NO.17/11 MEDICINES AND MEDICAL TREATMENT
60.The case of the petitioner Ms.Nilofer @ Farzana is that after the accident on 22.2.2010 she was taken to RML hospital and discharged on the same day. The petitioner has filed discharge summary prepared at RML 27 hospital as per which she was discharged on the same day and diagnosis is mentioned as CLW over left temporal region. The petitioner has filed one bill of Rs.299/. The petitioner is thus awarded a sum of Rs.299/ towards medical bill.
PAIN AND SUFFERING AND LOSS OF AMENITIES OF LIFE
61.It has been held in Divisional Controller, K. S. R. T. C Vs Mahadeva Shetty and another, AIR 2003 Supreme Court 4172 as under:
13."The damages for vehicular accidents are in the nature of compensation in money for less of any kind caused to any person. In case of personal injury the position is different from loss of property. In the later case there is possibility of repair or restoration. But in the case of personal injury, the possibility of repair or restoration is practically nonexistent. In Parry V. Cleaver(1969 1 All. E. R. 555) Lords Morris stated as follows:
"To compensate in money for pain and for the physical consequences is invariably difficult, but...... no other process can be devised than that of making monitory assessment."
62. The case of the petitioner is that after the accident on 22.2.2010, the petitioner was taken to RML hospital from where she was discharged on the same day. The petitioner has filed discharge summary prepared at RML hospital as per which she was discharged on the same day and diagnosis is mentioned as CLW over left temporal region. Looking at the nature of injuries and extent of treatment, petitioner is awarded a sum of 28 Rs. 10,000/ towards pain and suffering.
63.It is stated that the petitioner was 19 years at the time of accident. Looking at the nature of injuries notice can be taken of the fact that on account of injuries sustained the petitioner may not have been able to contribute towards her family duties and may not have been able to enjoy the amenities of life. In the circumstances petitioner is awarded a sum of Rs.5,000/ towards loss of amenities of life. CONVEYANCE AND SPECIAL DIET
64.In the claim petition and in affidavit Ex.PW3/A the petitioner has not stated that she incurred any expenditure on conveyance. The contention of counsel for insurance company is that the petitioner has not adduced any evidence to prove the expenditure on conveyance. Although the petitioner has not proved any document in order to prove expenditure on conveyance, however, looking at the nature of injuries notice can be taken of the fact that after the accident the petitioner was taken to RML hospital from where she was discharged on the same day and after discharge from the hospital the petitioner might have engaged the services of private conveyance as she may not have been able to use public conveyance. Although the petitioner has not proved that she had attended further treatment in respect of injuries sustained by her either in RML hospital or from any other medical expert. However notice can be 29 taken of the fact that the petitioner might not have been able to use public conveyance and would have engaged services of private conveyance for commuting. In the circumstances Rs.2,000/ towards conveyance would be just and proper and is awarded accordingly.
65.In the claim petition and in affidavit Ex.PW3/A petitioner has not stated that she incurred any expenditure on special diet. The contention of counsel for insurance company is that the petitioner has not proved that she was advised special diet and she has incurred expenditure on the same. Although the petitioner has not proved that she spent amount on special diet, however, looking at the nature of injuries sustained by the petitioner notice can be taken of the fact that the petitioner might have taken diet rich in protein, vitamins and minerals for speedy recovery and might have incurred expenses on the same. Thus the petitioner is awarded a sum of Rs.2,000/ towards special diet.
LOSS OF INCOME
66.It is stated in the claim petition that the petitioner was 19 years of age at the time of accident and was doing stitching work and was earning Rs. 6000/pm. In the cross examination also petitioner/PW3 stated that she used to do stitching work. Petitioner/PW3 further stated in cross examination that she has not filed any document on record to prove that she was doing stitching work or was earning any amount from the same. 30 Petitioner/PW3 further stated in cross examination that she does not possess any diploma or certificate in stitching. The petitioner/PW3 has not proved that she possesses any diploma or certificate in stitching and that she was proficient in stitching work and was earning any amount from the same. Although the petitioner has not proved that she was earning any amount however notice can be taken of the fact that petitioner was 19 years of age at the time of accident and was capable of earning. The petitioner has not proved her educational qualification on record. In the circumstances the income of petitioner shall be taken as per minimum wages of non matriculate as on 1.2.2010 which was Rs. 5850/pm. The petitioner has not proved that she was confined to bed for any specific period. As per discharge report of petitioner filed on record she was discharged on the same day. Although the petitioner has not proved that she was advised rest for any specific period however looking at the nature of injuries notice can be taken of the fact that petitioner may not have been able to attend her avocation for a period of one month. In the circumstances petitioner is awarded Rs.5850/ towards loss of income.
67. The petitioner has not proved that she has suffered any permanent disability due to this accident or the nature of injuries sustained by her were such that on account of said injuries, she may not be able to 31 perform her avocation in future or her efficiency will be reduced and her capacity to earn will be affected. In the circumstances no amount is being awarded on account of future loss of income.
The total compensation is assessed as under:
Medicines and Medical treatment : Rs. 299/
Pain and suffering and loss of
Amenities of life : Rs.15,000/
Conveyance and Special Diet : Rs. 4,000/
Loss of income : Rs. 5850/
TOTAL : Rs.25149/
RELIEF
68.The petitioner is awarded a sum of Rs.25149/(Rs.Twenty Five Thousand One Hundred Forty Nine only) with interest at the rate of 7.5% per annum from the date of filing of petition till its realisation including, interim award, if any already passed against the respondents in favour of the petitioner. The entire award amount be released to the petitioner.
69.The Oriental Insurance Company Ltd. shall deposit the award amount directly in the bank account of the claimant at UCO Bank, Patiala House Court, New Delhi within 30 days of the passing of the award failing which it is liable to pay interest at the rate of 12% per annum for the period of delay.
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70.Nazir to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself. The petitioner shall file two sets of photographs along with his specimen signatures, out of which one set to be sent to the Nodal Officer, UCO Bank, Patiala House Court Complex, New Delhi along with copy of the award by Nazir and the second set be retained to the court for further reference. The photographs be stamped and sent to the bank. The petitioners shall also file the proof of residence and furnish the details of the bank account with the Nazir within a week. The petitioner shall file his complete address as well as address of his counsel for sending the notice of deposit of the award amount.
71.The Oriental Insurance Company Ltd. shall deposit the award amount alongwith interest upto the date of notice of deposit to the claimant with a copy to his counsel and the compliance report shall be filed in the court alongwith proof of deposit of award amount, the notice of deposit and the calculation of interest on 24.7.2014.
COMPENSATION IN SUIT NO.18/11 MEDICINES AND MEDICAL TREATMENT
72. The case of the petitioner Sh.Islam Malik is that after the accident on 22.2.2010 he was taken to Lok Nayak hospital from where he was 33 discharged on the same day and thereafter he has undergone further treatment. The petitioner has filed copy of casualty card of Lok Nayak hospital and OPD card of Ram Lal Kundan Lal Orthopaedic hospital on record. The petitioner has filed bills of Rs.4748/. The petitioner is awarded Rs.4748/ towards admissible medical bill. PAIN AND SUFFERING AND LOSS OF AMENITIES OF LIFE
73.It has been held in Divisional Controller, K. S. R. T. C Vs Mahadeva Shetty and another, AIR 2003 Supreme Court 4172 as under:
13."The damages for vehicular accidents are in the nature of compensation in money for less of any kind caused to any person. In case of personal injury the position is different from loss of property. In the later case there is possibility of repair or restoration. But in the case of personal injury, the possibility of repair or restoration is practically nonexistent. In Parry V. Cleaver(1969 1 All. E. R. 555) Lords Morris stated as follows:
"To compensate in money for pain and for the physical consequences is invariably difficult, but...... no other process can be devised than that of making monitory assessment."
74. The case of the petitioner is that after the accident on 22.2.2010 he was taken to Lok Nayak hospital from where he was discharged on the same day and thereafter he has undergone further treatment. The petitioner has filed copy of casualty card of Lok Nayak hospital and OPD card of Ram Lal Kundan Lal Orthopaedic hospital on record. As per casualty 34 card prepared at Lok Nayak hospital the petitioner has suffered fracture public ram. Looking at the nature of injuries and extent of treatment, petitioner is awarded a sum of Rs. 25,000/ towards pain and suffering.
75.It is stated that the petitioner was 38 years at the time of accident. Looking at the nature of injuries notice can be taken of the fact that on account of injuries sustained the petitioner may not have been able to contribute towards his family duties and may not have been able to enjoy the amenities of life. In the circumstances petitioner is awarded a sum of Rs.5,000/ towards loss of amenities of life.
CONVEYANCE AND SPECIAL DIET
76.In the claim petition and in affidavit Ex.PW2/A the petitioner has not stated that he incurred any expenditure on conveyance. The contention of counsel for insurance company is that the petitioner has not adduced any evidence to prove the expenditure on conveyance. Although the petitioner has not proved any document in order to prove expenditure on conveyance, however, notice can be taken of the fact that after the accident on 22.2.2010 the petitioner was taken to Lok Nayak hospital from where he was discharged on the same day and thereafter he has undergone further treatment from Ram Lal Kundan Lal Orthopaedic hospital and after discharge from the hospital and for subsequent treatment the petitioner might have hired the services of private 35 conveyance/ambulance as he may not have been able to use public conveyance and might have incurred expenditure on the same. In the circumstances petitioner is awarded Rs.5,000/ for conveyance.
77.In the claim petition and in affidavit Ex.PW2/A petitioner has not stated that she incurred any expenditure on special diet. The contention of counsel for insurance company is that the petitioner has not proved that he was advised special diet and he has incurred expenditure on the same. Although the petitioner has not proved that he spent amount on special diet, however, looking at the nature of injuries sustained by the petitioner notice can be taken of the fact that the petitioner might have taken diet rich in protein, vitamins and minerals for speedy recovery and might have incurred expenses on the same. Thus the petitioner is awarded a sum of Rs.5,000/ towards special diet.
LOSS OF INCOME
78.It is stated in the claim petition that the petitioner was 38 years of age at the time of accident and was working as painter with M/s Khanna & Sons and was earning Rs.9000/+ Rs.3000/ as over time. In order to prove his income the petitioner has relied on certificate Ex.PW2/3 as purportedly issued by M/s Khanna & Sons as per which the petitioner was working with the said organisation for the last 15 years and drawing salary of Rs. 15000/pm. Petitioner/ PW2 denied suggestion of counsel for insurance 36 company in the cross examination that Ex.PW2/3 is a forged document and he was not employed with M/s Khanna & Sons. The petitioner has not examined any witness from M/s Khanna & Sons in order to prove that he was employed with the said organisation and was drawing salary of Rs.15000/pm as stated in the said certificate Ex.PW2/3 and the certificate Ex.PW2/3 has been issued by authorised signatory of said organisation. The certificate Ex.PW2/3 has not been proved by petitioner/PW2 by any cogent evidence. Petitioner has not proved any other document of his employment/income. In the circumstances the income of petitioner shall be taken as per his educational qualification. The petitioner has not proved his educational qualification. However during the course of examination on 26.3.2014 petitioner stated that he is th 44 years of age and educated upto 8 standard. In the circumstances the income of petitioner shall be taken as per minimum wages of non matriculate as on 1.2.2010 which was Rs.5850/pm. The petitioner has not proved that he was advised rest for any specific period. Although the petitioner has not proved that he was advised rest for any specific period however looking at the nature of injuries notice can be taken of the fact that petitioner may not have been able to attend his avocation for a period of three months. In the circumstances petitioner is awarded Rs. 5850x3=Rs.17550/ towards loss of income.
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79. The petitioner has not proved that he has suffered any permanent disability due to this accident or the nature of injuries sustained by him were such that on account of said injuries, he may not be able to perform his avocation in future or his efficiency will be reduced and his capacity to earn will be affected. In the circumstances no amount is being awarded on account of future loss of income.
The total compensation is assessed as under:
Medicines and Medical treatment : Rs. 4748/
Pain and suffering and loss of
Amenities of life : Rs.30,000/
Conveyance and Special Diet : Rs. 10,000/
Loss of income : Rs. 17550/
TOTAL : Rs.62298/
RELIEF
80.The petitioner is awarded a sum of Rs.62298/(Rs.Sixty Two Thousand Two Hundred Ninety Eight only) with interest at the rate of 7.5% per annum from the date of filing of petition till its realisation including, interim award, if any already passed against the respondents in favour of the petitioner. The entire award amount be released to the petitioner.
81.The Oriental Insurance Company Ltd. shall deposit the award amount directly in the bank account of the claimant at UCO Bank, Patiala House Court, New Delhi within 30 days of the passing of the award failing which 38 it is liable to pay interest at the rate of 12% per annum for the period of delay.
82.Nazir to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself. The petitioner shall file two sets of photographs along with his specimen signatures, out of which one set to be sent to the Nodal Officer, UCO Bank, Patiala House Court Complex, New Delhi along with copy of the award by Nazir and the second set be retained to the court for further reference. The photographs be stamped and sent to the bank. The petitioners shall also file the proof of residence and furnish the details of the bank account with the Nazir within a week. The petitioner shall file his complete address as well as address of his counsel for sending the notice of deposit of the award amount.
83.The Oriental Insurance Company Ltd. shall deposit the award amount alongwith interest upto the date of notice of deposit to the claimant with a copy to his counsel and the compliance report shall be filed in the court alongwith proof of deposit of award amount, the notice of deposit and the calculation of interest on 24.7.2014.
39APPORTIONMENT OF LIABILITY:
84.Sh.R.Ramesh owner of the offending vehicle has pleaded in the written statement that he was not the owner of the offending vehicle at the time of accident as the same was sold by him to Sh.Tajuddin on 8.12.2008 vide agreement to sell, affidavit and form no.29 and 30. Although Sh.R.Rajesh has pleaded that he was not the owner of the offending vehicle at the relevant time however he has not adduced any evidence to this effect. The petitioners have filed on record certified copies of the registration certificate,permit and insurance policy of the offending vehicle as per which Sh.R.Rajesh is the registered owner. In the circumstances there is no force in the contention of Sh.R.Rajesh that he is not the owner of the offending vehicle.
85.The contention of counsel for The Oriental Insurance Company Ltd. is that the driver of the offending vehicle did not possess valid driving license and on that account insurance company is not liable to indemnify the insured. The Oriental Insurance Company Ltd. has examined Sh.Rakesh Tiwari, Record Keeper, Licensing Authority, Mayur Vihar as R4W1 who produced the record in respect of D/L no.0720000001261 in the name of Sh.Sushil Kumar as Ex.R4W1/1 and he further stated that the said driving license is valid for non transport vehicle from 26.9.2008 to 25.9.2028 and is valid for transport vehicle from 7.10.2011 to 6.10.2014 40 and as on 22.2.2010 the said driving license was not valid for passenger/transport vehicle. The Oriental Insurance Company Ltd. has examined Sh.V.D.Talwar, Admn.Officer as R4W2 who has filed copy of D/L of Sh.Sushil Kumar as Ex.R4W2/1 as per which Sh.Sushil Kumar has been issued driving license to drive 3WTSR, M.Cyl., LMVNT and LMV GV and the date of issue of the driving license is mentioned as 20.11.2008 and validity is mentioned as up to 25.9.2011. In the driving license Ex.R4W2/1 against the class of LMVGV the date of issue is mentioned as 16.8.2000. The contention of counsel for the Oriental Insurance Company Ltd.is that the driver was not authorised to drive RTV i.e. transport vehicle on the basis of driving license as possessed by him. As per driving license Ex.R4W2/1 Sh.Sushil Kumar was authorised to drive 3WTSR, M.Cyl., LMVNT and LMVGV.
86.In National Insurance Co.Ltd.v.Kusum Rai,2006 ACJ 1336(SC), it was held that:
"(9)It has not been disputed before us that the vehicle was being used as a taxi. It was, therefore, a commercial vehicle. The driver of the said vehicle, thus, was required to hold an appropriate license therefor. Ram Lal who allegedly was driving the said vehicle at the relevant time, as noticed hereinbefore, was holder of a license to drive a light motor vehicle only. He did not possess any license to 41 drive a commercial vehicle. Evidently, therefore, there was a breach of the condition of the contract of insurance. The appellant, therefore, could raise the said defence."
87.It is to be noted that as per driving license Ex.R4W2/1, Sh.Sushil Kumar has been authorised to drive 3WTSR, M.Cyl.,LMVNT and LMVGV. Section 2(47) of the MVAct,1988 defines transport vehicle as follows (47)"transport vehicle" means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle;. Section 2(33) & (35) of the MVAct,1988 define private service vehicle and public service vehicle and they read as under:
(33)"private service vehicle" means a motor vehicle constructed or adapted to carry more than six persons excluding the driver and ordinarily used by or on behalf of the owner of such vehicle for the purpose of carrying persons for, or in connection with, his trade or business otherwise than for hire or reward but does not include a motor vehicle used for public purposes;
(35)"public service vehicle" means any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, and includes a maxicab, a motorcab, contract carriage, and stage carriage;
88.It is to be noted that as per driving license Ex.R4W2/1, Sh.Sushil Kumar has been authorised to drive 3WTSR,M.Cyl., LMVNT, LMVGV and not 42 a public service vehicle as defined in section 2(35) of the MVAct,1988. However, merely by proving that Sh.Sushil Kumar was not authorised to drive the class of vehicles which he was found to be driving will not exonerate the insurance company from its liability of indemnifying the insured unless the insurance company is able to prove that there has been a fundamental breach of policy conditions.
89.In National Insurance Co.Ltd. Vs Swaran Singh and Others,AIR 2004 SC 1531, Hon'ble Supreme Court has held that:
"96(vi)Even where the insurer is liable to prove breach on the part of the insured concerning the policy condition regarding holding of a valid license by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving license is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149 (2) of the Act.
(vii)The question as to whether the owner has taken reasonable care to find out as to whether the driving license produced by the driver,(a fake one or otherwise), does not fulfil the requirements of law or not will have 43 to be determined in each case."
90.The Oriental Insurance Company Ltd. has not proved that holding of driving license by Sh.Sushil Kumar which did not authorise him to drive a public service vehicle was the factor which contributed to the cause of accident or that the driving license as possessed by Sh.Sushil Kumar was the fundamental cause of the accident. In the circumstances, I find no force in the contention of the Oriental Insurance Company Ltd. that the insurance company is not liable to indemnify the insurer. Thus, Sh.Sushil Kumar being the driver, Sh.R.Rajesh being owner and The Oriental Insurance Company being the insurer are held jointly and severally liable. The Oriental Insurance Company being the insurer is directed to deposit the award amount within 30 days with interest at the rate of 7.5% from the date of filing of petition till its realisation. In case of any delay, it is liable to pay interest @ 12% per annum for the period of delay. Nazir to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself.
91.An attested copy of the award be given to the parties.
92.File be consigned to Record Room.
Announced in the open court (Harish Dudani) on 7.5.2014. Judge: MACT1 : New Delhi