Delhi District Court
I. [Ram Pyari vs . Pramod Kumar & Ors. {Suit ... on 3 September, 2011
i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009]
&
ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009]
&
iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009]
IN THE COURT OF : SH. KANWAL JEET ARORA:
PRESIDING OFFICER:
MOTOR ACCIDENT CLAIM TRIBUNALII,
DWARKA COURTS, NEW DELHI
(I) In M.A.C.Pet.No.: 967/2009.
SMT.RAM PYARI VS. PRAMOD KUMAR & ORS.
[with respect to injuries sustained by Smt.Ram Pyari}
Smt.Ram Pyari,
W/o.: Shri Subudhi,
R/o.: RZF7B / 238,
Dayal Park, West Sagarpur,
New Delhi.
.... Petitioner.
V E R S U S
1. Pramod Kumar, [Driver]
S/o.: Shri Jiledar Singh,
R/o.: Village Rampur,
Nidhauti Kalan, Etah, UP.
Page 1 of 104
i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009]
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ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009]
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iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009]
2. Naresh Kumar, [Owner]
S/o.: Late Sh.Kishan Lal,
R/o.: WZ417/B, Naraina
Village, N ew Delhi.
Also at:
D/2/18, Vashisht Park,
Opposite Janak Cinema,
Uttam Nagar, New Delhi59.
3. M/s Bajaj Allianz General Insurance Co. Ltd. [Insurer]
IIIrd Floor, Krishna Bhawan,
Plot No.7 and 8, A3,
Janak Puri, New Delhi.
Registered Office:
GE Plaza, Airport Road,
Yerwada, Pune411006.
.........Respondents.
DATE OF FILING OF PETITION : 09.12.2009.
ARGUMENTS HEARD ON : 05.07.2011.
DATE OF DECISION : 03.09.2011.
COMPENSATION CLAIMED : Rs. 7 lacs.
Page 2 of 104
i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009]
&
ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009]
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iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009] (II) M.A.C.Pet.No. : 810 / 2009.
TEJ RAM VS. PRAMOD KUMAR & ORS.
[with respect to death of Smt.Kalyani w/o Tej Ram]
1. Tej Ram Gujjar, S/o.: Late Shri Bhagi Lal Gujjar.
2. Kamal Singh, S/o.: Shri Tej Ram Gujjar.
3. Savitri Devi, D/o.: Shri Tej Ram Gujjar.
4. Dhara Singh, S/o.: Shri Tej Ram Gujjar.
5. Maharaj Singh, S/o.: Shri Tej Ram Gujjar.
[Petitioner No.5 Maharaj Singh being minor is represented through his father / natural guardian / petitioner no.1 Sh.Tej Ram Gujjar] All residents of: RZP7B/238, Dayal Park, West Sagarpur, Delhi46. .... Petitioners. Page 3 of 104
i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009] V E R S U S
1. Pramod Kumar, [Driver] S/o.: Shri Jiledar Singh, R/o.: Village Rampur, Nidhauti Kalan, Etah, UP.
2. Naresh Kumar, [Owner] S/o.: Late Sh.Kishan Lal, R/o.: WZ417/B, Naraina Village, N ew Delhi.
Also at: D/2/18, Vashisht Park, Opposite Janak Cinema, Uttam Nagar, New Delhi59.
3. M/s Bajaj Allianz General Insurance Co. Ltd. [Insurer] IIIrd Floor, Krishna Bhawan, Plot No.7 and 8, A3, Janak Puri, New Delhi.
Registered Office: GE Plaza, Airport Road, Yerwada, Pune411006. .........Respondents. DATE OF FILING OF PETITION : 19.03.2009.
ARGUMENTS HEARD ON : 05.07.2011.
DATE OF DECISION : 03.09.2011.
COMPENSATION CLAIMED : Rs.20 lacs.
Page 4 of 104
i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009]
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ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009]
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iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009] (III) M.A.C.Pet.No. : 968 / 2009.
SUBUDHI VS. PRAMOD KUMAR & ORS.
[with respect to death of Baby Leela D/o Sh.Subudhi]
1. Sh.Subudhi, S/o.: Shri Sawal Ram,
2. Smt.Ram Pyari, W/o.: Shri Subudhi. .... Petitioners.
V E R S U S
1. Pramod Kumar, [Driver] S/o.: Shri Jiledar Singh, R/o.: Village Rampur, Nidhauti Kalan, Etah, UP.
2. Naresh Kumar, [Owner] S/o.: Late Sh.Kishan Lal, R/o.: WZ417/B, Naraina Village, N ew Delhi.
Also at: D/2/18, Vashisht Park, Opposite Janak Cinema, Uttam Nagar, New Delhi59.
Page 5 of 104
i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009]
3. M/s Bajaj Allianz General Insurance Co. Ltd. [Insurer] IIIrd Floor, Krishna Bhawan, Plot No.7 and 8, A3, Janak Puri, New Delhi.
Registered Office: GE Plaza, Airport Road, Yerwada, Pune411006. .........Respondents. DATE OF FILING OF PETITION : 09.12.2009.
ARGUMENTS HEARD ON : 05.07.2011.
DATE OF DECISION : 03.09.2011.
COMPENSATION CLAIMED : Rs.20 lacs.
: J U D G E M E N T :
1. Momentary indiscretion on the part of Pramod Kumar had ruined two happily settled families. A single stroke of misfortunate moment had given injuries on the person of Smt.Ram Pyari, whereas Smt.Kalyani w/o Sh.Tej Ram Gujjar and Baby Leela d/o Sh.Subudhi lost their lives. A sudden rash and negligent act of Pramod Kumar, driver of truck bearing registration number Page 6 of 104 i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009] HR38/E3533 had snatched the reason of survival from Sh.Tej Ram Gujjar as he lost his wife namely Smt.Kalyani in the present accident. Lives of parents of Baby Leela also became miserable, as she expired in the present accident, leaving them to miss her for rest of their lives. Pain and suffering of Smt.Ram Pyari, mother of Baby Leela was further compounded, as she had sustained multiple injuries on her person in this very accident.
2. On 07.01.2009, Smt.Ram Pyari along with her daughters namely Priyanka and Leela and her neighbour Smt.Kalyani were going to Nasirpur Mother Dairy to get milk. When they reached near DDA Flats, Nasirpur Road, opposite Ganda Nala, a truck bearing registration number HR38/E3533 came there being driven at a fast speed and in a rash and negligent manner and struck against them with great force. Driver of the offending truck even after hitting against them, failed to stop the same and struck against the wall of Ganda Nala and the truck fell Page 7 of 104 i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009] down inside the Nala.
3. Owing to forceful impact of the offending vehicle, Smt.Ram Pyari along with her daughter Leela and her neighbour Smt.Kalyani had sustained injuries on their persons. It is stated that Ram Pyari escaped with the multiple injuries sustained by her. However, the injuries sustained by Baby Leela and Smt.Kalyani proved fatal as both of them succumbed to the same.
4. Subsequent thereto, three separate petitions were filed by the petitioners seeking compensation against driver, owner and insurer respectively of the offending truck bearing registration number HR38/E3533 for the respective losses suffered by them.
5. First petition bearing petition no:967/2009 was filed by Smt.Ram Pyari seeking compensation for the injuries sustained by her against Pramod Kumar, driver of the offending truck Page 8 of 104 i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009] bearing registration number HR38/E3533, Naresh Kumar, the owner thereof and M/s Bajaj Allianz General Insurance Company Limited, the insurer, with whom the offending vehicle was insured.
6. Second petition bearing petition no.810/2009 was filed by Sh.Tej Ram Gujjar, against the same respondents seeking compensation for untimely death of his wife Smt.Kalyani in the present accident.
7. Third petition bearing petition no.968/2009 was filed by Sh.Subudhi, against these very respondents, seeking compensation for untimely death of her daughter Baby Leela in the present accident.
8. It is pertinent to mention here that earlier two petitions titled "Ram Pyari Vs. Pramod Kumar" bearing petition no.967/09 and "Subudhi Vs. Pramod Kumar & Ors" bearing petition no. Page 9 of 104
i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009] 968/2009, were consolidated vide orders dated 31.08.2010 wherein "Consolidated issues" with respect to both these petitions were framed. Subsequently, the third petition titled "Tej Ram Vs. Pramod Kumar & Ors." bearing petition no.810/2009 was also "consolidated" with the other two petitions, for the purposes of adjudication and trial vide orders dated 30.11.2010, as all these petitions had arisen out of same accident.
9. Considering the fact that all these three petitions had arisen out of same accident and were tried together, therefore, all these petitions are now being disposed off by this common award / judgement.
10. Relevant facts which constrained the petitioners to invoke the jurisdiction of this tribunal and necessary for disposal of present petitions, apart from those stated hereinabove are as under: Page 10 of 104 i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009]
a) It is stated that accident had taken place due to negligence of respondent no.1 Pramod Kumar.
b) FIR No.21/2009 was registered at PS Palam Village and on conclusion of investigations, a charge sheet was filed against respondent no.1 Pramod Kumar for offence u/s 279/338/304A IPC.
c) It is stated that deceased Smt.Kalyani being the leading lady of the family of petitioners and by doing tailoring & stitching work was rendering financial support to her family by earning a sum of Rs.4500/ per month.
d) It is stated that deceased Smt.Kalyani was about 44 years of age at the time of her death.
Page 11 of 104
i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009]
e) It is stated that deceased Smt.Kalyani had left behind her husband and four children as her sole legal heirs.
f) It is alleged that entire administration of the house of Smt.Kalyani has been badly disrupted owing to her sudden demise in the accident as she being leading lady of the family was managing all day to day household chores besides pooling in the family income by doing stitching / tailoring work.
g) It is alleged that children of deceased Smt.Kalyani had suffered immense trauma & shock and have been bereft of the tender touch, care and concern of their mother.
h) It is stated that deceased Baby Leela was a toddler of merely about 16 months, who was forced to leave this world due to reckless act on the part of respondent no. 1 Pramod Kumar.
Page 12 of 104
i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009]
i) It is alleged that parents of deceased Leela had hardly welcomed their child into this world when negligence on the part of driver of the offending truck, had snatched the priceless company of minor girl from their parents.
j) It is stated that this unfortunate accident has also ruined and shattered the life of Smt.Ram Pyari, who besides sustaining multiple injuries on her person, had also lost her affable daughter Leela in a second's time, due to sheer negligence of respondent no.1.
k) It is stated that Smt.Ram Pyari had to incur considerable expenses on her treatment. It is further stated that owing to the injuries sustained, she could not carry on her household work and was forced to remain on bed for a considerable period of time. Page 13 of 104
i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009]
l) It is stated that petitioners of all the three petitions be adequately compensated.
11. Notices of all the three petitions were ordered to be issued to the respondents.
12. Despite service of notice, respondent no.1 failed to appear and was proceeded exparte.
13. Pursuant to service of notice, respondent no.2 and respondent no.3 appeared and had filed their respective written statements.
14. Respondent no.2 owner of the offending vehicle contested the claim petitions filed by the petitioners by filing written statement, wherein facts stated in the petition were denied. Page 14 of 104
i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009] It is stated that no accident whatsoever had taken place with the truck in question. It is stated that driver of the offending vehicle was holding a valid driving licence and truck was duly insured with respondent no.3 Insurance Company. It was admitted by respondent no.2 in his written statement that FIR was registered against driver of the offending truck u/s 279/338/304A IPC.
15. Separate written statement was filed on behalf of respondent no.3 Insurance Company, wherein it was admitted that the offending truck was insured with them vide policy no. 0G091121180300000006 valid from 31.03.2008 till 30.03.2009 in the name of respondent no.2 Naresh Kumar, the owner thereof. It is however submitted on behalf of insurance company that as Respondent no.1 was not holding a valid and effective driving licence therefore they are not liable to indemnify the insured and to compensate the petitioners. It is stated that the claim petitions filed by petitioners are exorbitant and without any basis. Page 15 of 104
i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009]
16. Vide orders dated 31.08.2010, two petitions titled "Ram Pyari Vs. Pramod Kr" & "Subudhi Vs. Pramod Kr" were consolidated for the purposes of adjudication and on the basis of pleading of the parties, consolidated issues were framed which are as under : i. Whether Ram Pyari had sustained fatal injuries on her person and Baby Leela Bai had sustaine fatal injuries in an accident which took place on 17.01.2009 due to negligent driving of vehicle bearing registration number HR38/E3533 being driven in a negligent manner by respondent no.1, owned by respondent no. 2 and insured with respondent no.3? ... OPP. ii. In case, issue no. 1 is decided in favor of the petitioners, to what amount of compensation, petitioners are entitled to and from whom?
...OPP.
iii. Relief.
Page 16 of 104
i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009]
17. Separate issues were framed in petition titled "Tej Ram Vs. Pramod Kumar" bearing petition no.: 810/2009 vide orders dated 28.07.2009. The same are as under: i. Whether wife of petitioner no.1 Smt.Kalyani Devi, had sustained fatal injuries on her person in an accident caused due to negligent driving of vehicle i.e. Truck bearing registration number HR38/E3533 being driven by respondent no. 1, owned by respondent no. 2 and insured with respondent no. 3 on 17.01.2009? ... OPP. ii. In case, issue no. 1 is decided in affirmative then to what amount of compensation, petitioners are entitled to and from whom?
...OPP.
iii. Relief.
18. Before proceeding further, it is pertinent to mention that during the pendency of proceedings, respondent no.1 failed to appear and was proceeded exparte.
Page 17 of 104
i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009]
19. Parties to the petition were thereafter called upon to substantiate their respective cases by leading evidence.
20. In petition no.967/2009 and 968/2009, in order to prove their case, petitioner no.1 Smt.Ram Pyari for herself as well as being witness to the incident in connected case appeared in the witness box as PW1. She filed her examination in chief by way of affidavit Ex.PW.1/A and Ex.PW.1/AA. She during the course of her deposition had categorically narrated the sequence of events, as they had taken place.
21. In petition titled "Tej Ram Vs. Pramod Kr. & Ors.", petitioner Tej Ram appeared in the witness box as PW1 and witness to incident namely Smt.Jagwanti Devi was examined by the petitioners as PW2.
Page 18 of 104
i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009]
22. During the course of proceedings, it was brought to the notice of this Tribunal that apart from the two petitions titled "Ram Pyari Vs. Pramod Kr. & Ors." and "Subudhi Vs. Pramod Kr. & Ors." which were earlier clubbed for the purposes of adjudication vide orders dated 31.08.2010, another petition titled "Tej Ram Vs. Pramod Kr.& Ors." which had arisen out of same accident was pending. The said petition was being tried separately. In the said petition, petitioners evidence was recorded and thereafter statement of respondent no.2 was recorded as R2W1 and one witness from the Insurance Company namely Ms.Sunanda Nimisha was examined as R3W1.
23. Considering the fact that all these three petitions had arisen out of same accident and for the purposes of adjudication and disposal, same evidence was required. Consequently, vide orders dated 30.11.2010, another petition titled "Tej Ram Vs. Pramod Kr. & Ors." was also ordered to be clubbed with the other Page 19 of 104 i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009] two petitions. It was clarified that "Ram Pyari Vs. Pramod Kr. & Ors." shall be considered as "leading case" and the respondent's evidence already recorded in case titled "Tej Ram Vs. Pramod Kr. & Ors." shall also be read for disposal of all the three petitions.
24. Respondent no.2 Naresh Kumar appeared in the witness box as R2W1 and filed his examination in chief by way of affidavit Ex.R2W1/A. He deposed that he had taken driving test of respondent no.1 to check his driving skills before appointing him as "driver".
25. On behalf of the Insurance Company, Ms.Sunanda Nimisha, Senior Executive (Legal) appeared in the witness box as R3W1 and filed her examination in chief by way of affidavit Ex.R3W1/A. She proved on record the Insurance Policy with respect to the offending vehicle as Ex.R3W1/B. She deposed that as Page 20 of 104 i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009] respondent no.1 was not holding "HTV Licence" to drive the offending truck as on date of accident, therefore Insurance Company is not liable to indemnify the insured as vehicle involved in the accident was being driven in contravention to the terms and conditions of the policy. She proved on record the notice u/o 12 rule 8 CPC along with its receipts / envelopes and verification report of driving licence of respondent no.1 as Ex.R3W1/B, to Ex.R3W1/F and Ex.R3W1/G respectively.
26. On behalf of the Insurance Company, one witness was summoned from Licencing Authority, Eita along with the summoned record pertaining to driving licence of respondent no.1. Due to nonappearance of the witness, a show cause notice under order 16 rule 12 CPC was ordered to be issued. In response to the said notice, a detailed reply / report was sent to the court by post by Licencing Authority, Eita on 01.02.2011. The said report depicting that driving licence which was earlier issued in favor of respondent no.1 wa to authorize him to drive "LMV" and later on necessary Page 21 of 104 i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009] endorsement was made on the same, authorizing him to drive HTV with effect from 28.01.2009. The said report was taken on record, to be read in evidence and matter was adjourned.
27. It is pertinent to mention that on said date, when the matter had already been adjourned, one Shri J.P.Gupta, Assistant from Licencing Authority, Eita appeared along with the requisite record of driving licence of respondent no.1. Copy of the same was kept on record. Statement of this witness was not recorded as parties and their respective counsels had already left for that day.
28. I have heard the arguments advanced and have perused & considered the oral as well as the documentary evidence on record including the report submitted by Licencing Authority, Eita with respect to driving licence of respondent no.1, pursuant to issuance of show cause notice to them.
Page 22 of 104
i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009]
29. It is submitted on behalf of petitioner Ram Pyari that in the present accident, although petitioner Ram Pyari herself had sustained multiple injuries from which she would recover, however the inrecuperable wound sustained by her owing to death of her affable daughter namely Leela in the same, has left an indelible scar from which it is very hard to recover. It is stated that she be adequately compensated for the injuries & irrecoverable loss suffered by her in this accident.
30. It is contended that owing to sustenance of injuries to petitioner Ram Pyari, mental condition of her husband who was battling to overcome with the sudden demise of their affable daughter Leela was further worsened.
31. It is contended that deceased Smt.Kalyani Devi was the leading lady of the family and by doing tailoring and stiching work, was contributing to the "family income". It is contended that her sudden demise in the accident has diminished the scope of survival Page 23 of 104 i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009] of the petitioners, as she was sole pillar who was providing all emotional and sentimental support to them.
32. On behalf of Insurance Company, it is contended that as per the verification report submitted by their investigator which was proved on record as Ex.R3W1/F, it has been established on record that respondent no.1 was not authorized to drive the category of vehicle which he was driving on the date of accident. It is contended that an endorsement authorizing him to drive "HTV" was subsequently made by the Licencing Authority. It is contended that respondent no.1 was not holding a "HTV Licence" authorizing him to drive the truck in question, therefore Insurance Company cannot be saddled with the liability to compensate the petitioners. It is contended that as offending vehicle was being driven in contravention to the conditions of the policy, in view of the verification report Ex.R3W1/G, therefore Insurance Company be exonerated from the liability to indemnify the insured. Page 24 of 104
i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009]
33. I have given my thoughtful consideration to the rival contentions in the light of material on record. I have also perused the law laid down by Hon'ble Apex Court in case titled "Smt.Sarla Verma V/s DTC & Another" bearing civil appeal no.3183/2008, decided on 15th April 2009.'
34. My issuewise finding is as under: ISSUE NO. 1
35. Since Issue No.1 is common for all the three petitions, therefore, the same is being considered and disposed off simultaneously with respect to all the three petitions.
36. Standard of proof of negligence required in order to dispose off the compensation claim, stands on a much lesser footing than what is required in a criminal case or in a civil case. Page 25 of 104
i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009] It was held in "Ranu Bala Paul and Ors. V/s Bani Chakraborty and Ors., 1999 ACJ 634, by Hon'ble Guahati High Court that:
"In deciding a matter Tribunal should bear in mind the caution struck by the Apex Court that a claim before the Motor Accidents Claims Tribunal is neither a criminal case nor a civil case. In a criminal case in order to have conviction, the matter is to be proved beyond reasonable doubt and in a civil case the matter is to be decided on the basis of preponderance of evidence, but in a claim before the Motor Accidents Claims Tribunal, the standard proof is much below than what is required in a criminal case as well as in a civil case. No doubt before the Tribunal, there must be some material on the basis of which the Tribunal can arrive or decide things necessary to be decided for awarding compensation. But the Tribunal is not expected to take or to adopt the nicety of a civil or of a criminal case. After all, it is a summary inquiry and this is a legislation for the welfare of the society."Page 26 of 104
i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009]
37. In N.K.V.Bros(P) Ltd. V/s M.Karumai Ammal & Others, (1980) 3 SCC 457, Hon'ble Supreme Court has observed as under: "Road accidents are one of the top killers in our country, specially when truck and bus drivers operate nocturnally. This proverbial recklessness often persuades the courts, as has been observed by us earlier in other cases, to draw an initial presumption in several cases based on the doctrine of res ipsa loquitur. Accidents Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic maybes. We are emphasizing this aspect because we are often distressed by transport operators getting away with it thanks to judicial laxity, despite the fact that they do not exercise sufficient disciplinary control over the drivers in the matter of careful driving. The heavy economic impact of culpable driving of public transport must bring owner and driver to their responsibility to their 'neighbour'. Indeed, the State must seriously consider no fault liability by legislation." Page 27 of 104
i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009]
38. In the backdrop of above case law, the evidence of the petitioner is required to be considered.
39. The onus to prove this issue was on the petitioners.
40. In order to prove this issue, petitioners in petition no.967/09 and 968/09 have examined Smt.Ram Pyari who appeared in the witness box as PW1 and filed her examination in chief by way of affidavits as Ex.PW.1/A and Ex.PW.1/AA.
41. PW1 during the course of her deposition narrated the sequence of events as they had taken place. She was cross examined on behalf of the Insurance Company during which she denied the suggestion that she along with her daughter and Smt.Kalyani were walking on wrong side of the road. She denied the suggestion that accident had taken place due to their own negligence.
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42. The version given by PW1 was corroborated by Smt.Jagwanti, who was examined as witness to the incident in the connected petition titled "Tej Ram Vs. Pramod Kumar & Ors.". This witness also deposed that on the date of incident, she had seen two ladies along with two small girls walking ahead of her. She deposed that at that time, the offending truck bearing registration number HR38/G3533 came there being driven by its driver at a fast speed and struck against those pedestrians. She went on to depose that offending truck thereafter struck against the boundary wall of Ganda Nala and fell inside the same.
43. She was also cross examined on behalf of the Insurance Company, but nothing material came out of her cross examination, as she reiterated her stand that those two ladies along with two minor girls were walking on the correct side of the road, ie. left side of the road.
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44. Petitioners had also placed on record certified copies of the criminal proceedings with respect to FIR No.24/2009 at PS Palam Village. Perusal of FIR makes it evident that the same was registered on statement of petitioner Smt.Ram Pyari. Therefore her presence at the place of incident stands established, which even otherwise has not been disputed as she had also sustained injuries in this accident.
45. It has been held by Hon'ble High Court of Delhi in case titled "National Insurance Company Limited V/s Pushpa Rana"
reported as 2009 ACJ 287, that whenever criminal proceedings are placed on record on completion of investigations by the police, then that in itself is sufficient proof of the negligent driving of driver of the offending vehicle involved in the accident.
46. Petitioners however, in addition to placing on record the certified copies of criminal proceedings had examined Smt.Ram Pyari who appeared in the witness box as PW1. She had Page 30 of 104 i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009] categorically narrated the sequence of events as perceived by her at the time of accident. She categorically deposed that on the date of incident, she along with her two daughters namely Baby Leela and Baby Priyanka besides their neighbour Smt.Kalyani was going to Nasirpur Mother Dairy for getting milk. She deposed that when they reached near DDA Flats, Nasirpur Road, opposite Ganda Nala, a truck bearing registration number HR38/E3533 came there being driven at a fast speed & in a rash and negligent manner and struck against them. She deposed that driver of the offending truck even after knocking them down, failed to stop the same and while driving so, struck against the boundary wall of Ganda Nala and fell inside the Nala.
47. On being cross examined, this witness maintained the stand that the accident resulted due to negligence of respondent no. 1, who was driving his truck at a fast speed. PW1 Ram Pyari denied the suggestion that they were walking on the wrong side of the road.
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48. It is a matter of common knowledge that every driver of a motor vehicle, while driving heavy motor vehicle on a public road is under onerous obligation to drive the same carefully, so as to obviate the danger to the lives of other persons, using the public road, more particularly that of the pedestrians walking on the road. Driver of a heavy vehicle is required to be vigilant and to confine his vehicle in the prescribed lane for it. Driver of every motor vehicle is under statutory obligation to drive his vehicle at such a controlled speed, so that the same can be put at rest, in order to avert any unforeseen incident.
49. In the present case, it is apparent from the deposition of PW1 Smt.Ram Pyari, which appears to me, to be cogent, convincing and trustworthy and the same is corroborated the documentary evidence on record ie. certified copies of criminal proceedings, that driver of the offending truck ie. respondent no.1, failed to adhere to his statutory obligations and while driving the Page 32 of 104 i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009] offending truck in a rash and negligent manner, struck the same against them.
50. Had respondent no.1, driver of the offending vehicle been vigilant then at first instance, accident would not have taken place. Secondly, negligence of driver of the offending truck also stands confirmed from the fact that despite hitting the offending truck against petitioner Ram Pyari & her daughter Leela & Smt.Kalyani, respondent no.1 failed to put the same at rest and continued to drive the same in such a fashion, as a result of which offending truck struck against the boundary wall of Ganda Nala and fell inside the nala.
51. These facts established on record leads to the only inference that respondent no.1 was negligent in driving the offending truck which resulted in the accident. Page 33 of 104
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52. In view thereof, I am of the opinion that negligence on the part of respondent no.1, has resulted in this accident, as a consequence of which, Smt.Kalyani and Baby Leela lost their lives and petitioners, their reason for survival.
53. Petitioners thus, have been able to establish that accident did take place due to negligence of respondent no.1 which resulted in death of Baby Leela and Smt.Kalyani and sustenance of grevious injuries to Smt.Ram Pyari.
54. Issue No. 1 is decided in favor of the petitioners of all the three petitions accordingly.
ISSUE NO. 2:
55. As issue no.1 is decided in favor of the petitioners in affirmative, petitioners thus become entitle for the compensation. Quantum of the compensation however is required to be calculated. Page 34 of 104
i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009]
56. It has been held in a catena of judgments by Hon'ble Apex Court and various High Courts that emphasis in cases of personal injury and fatal accident should be on awarding substantial, just and fair compensation and not a token amount. It has been held in a number of judgments that general principle in calculating such sum of compensation, should be so as to put the injured or legal heirs of a deceased in case of fatal accident, in the same position as he would have been, if accident had not taken place. In examining the question of damages for personal injury, pecuniary or nonpecuniary damages are required to be taken into account.
57. It has been held by Hon'ble Apex Court in R.O. Hattangadi V/s Pest Control (India) Pvt. Ltd., AIR 1995 SC 755 that: "Broadly speaking, while fixing the amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Page 35 of 104
i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009] Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas nonpecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance;
(ii) loss of earning of profit up to the date of trial;
(iii) other material loss. So far as nonpecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters ie. on account of injury, the claimant may not be able to walk, run or sit ; (iii) damages for the loss of expectation of life, ie. on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life."
58. In view of above, in order to calculate the amount of compensation, the same is required to be considered under the various heads as delineated above by Hon'ble Apex Court. Page 36 of 104
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59. This issue shall be decided separately with respect to all the three claim petitions.
(I) M.A.C.Pet.No.:967/09
titled as
"RAM PYARI VS. PRAMOD KR. & ORS'
(with respect to injuries sustained by Smt.Ram Pyari w/o Sh.Subudhi)
(a) MEDICINES & TREATMENT:
60. I have perused the deposition of petitioner Smt.Ram Pyari. It is deposed by petitioner that immediately after the accident, she was taken to DDU Hospital, where she was medically examined and MLC was prepared. Petitioner Smt.Ram Pyari deposed that subsequent to her initial treatment at DDU Hospital, she was taken to Central Hospital, Tilak Nagar where she remained admitted for three days ie. from 17.01.2009 to 19.01.2009. Perusal of the Discharge Card of Central Hospital Page 37 of 104 i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009] reveals that on diagnosis she was diagnosed to have sustained grevious injuries comprising of "fracture of pubic rami" besides sustenance of multiple wounds & abrasions all over her body.
61. Petitioner deposed that despite three day's hospitalization at Central Hospital, she could not recuperate from the injuries sustained and was treated as an OPD Patient even after her discharge from the hospital. Petitioner deposed that owing to the injuries sustained by her, she remained on continuous treatment for a considerable period of time.
62. Petitioner deposed that owing to sustenance of grevious injuries in the present accident, she was forced to incur considerable expenses on her treatment and medication.
63. It is submitted by counsel for the insurance company that petitioner has failed to substantiate the expenses mentioned by her by way of bills and corresponding prescriptions. Therefore she Page 38 of 104 i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009] must not have spent anything on her treatment. Therefore, nothing can be awarded to the petitioner under the head of medicines and treatment.
64. I do not find any merits in the contentions advanced by the counsel for the insurance company in view of the medical treatment papers Ex.PW.1/12 placed on record which reveals that petitioner had sustained multiple grevious injuries in the present accident, for whose treatment she must have purchased medicines from the open market after her discharge from the hospital.
65. From the medical treatment record of the petitioner, more particularly bills Ex.PW.1/12 placed on record, it is apparent that petitioner had placed on record bills amounting to Rs.6500/ (approximately).
66. It is apparent on the basis of the nature & gravity of the injuries, ie. grevious injuries sustained by the petitioner and the Page 39 of 104 i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009] duration for which her treatment had continued, that she must have incurred expenses over and above, the amount of bills which she had placed on record.
67. I, therefore, award a sum of Rs.10,000/ to the petitioner towards "medicine and treatment" for the injuries sustained by him in this accident.
(b) LOSS OF INCOME / ATTENDANT
CHARGES:
68. PW1 deposed that she being the leading lady of the family was rendering multifarious household services to her family. Petitioner deposed that owing to sustenance of injuries to her in the present accident, she could not carry on with her household work for a considerable period of time.
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69. PW1 deposed that this unfortunate accident has not only given her unrecoverable wounds by snatching her affable 16 months daughter from her, but had also left her incapacitated of performing her household chores even after the accident, as she herself also sustained grevious injuries in this very accident. She deposed that due to which she could not carry on with her household work for a considerable period of time and was forced to engage the services of an attendant.
70. Ld.Counsel for the Insurance Company contended that as petitioner has not claimed anything under the head of loss of income, therefore nothing can be awarded to her towards loss of income.
71. I do not find any merits in the contentions of Ld.Counsel for the Insurance Company, as to my mind the petitioner while filing the petition had not taken into consideration the house hold work which she was doing for her family members. Page 41 of 104
i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009] In my considered opinion, the same is not capable of being quantified in terms of money. Even if for grant of compensation, the same is quantified, it cannot be less than the minimum wages prevalent at that point of time.
72. It is contended by Ld.Counsel for the petitioner, that PW1 Smt.Ram Pyari is entitled to get some general damages towards loss of income suffered by her as she prior to this accident was herself rendering the household services to her family members , which if quantified in monetary aspects would not come out to less than minimum wages prevailing at the time of accident. It is further contended that due to this accident, PW1 Smt.Ram Pyari to perform her usual household chores and was forced to engage an attendant for a considerable period of time.
73. I do find some merits in the contentions advanced by Ld.Counsel for the petitioner. I have considered the deposition of PW1 and have also gone through the medical treatment record of Page 42 of 104 i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009] the petitioner.
74. It is apparent from the deposition & medical treatment record of PW1 on record that petitioner being the leading lady of the family, prior to the accident was doing various household works [on which other family members were dependent] which got disrupted due to sustenance of injuries to her in the accident.
75. Having regards to the nature of injuries sustained by petitioner Ram Pyari & the duration for which she remained on treatment , I am of the considered opinion that she would not have been in a position to carry on with her normal activities and thus was forced to engage an attendant for assisting her. In view thereof, I am of the opinion that petitioner is required to be compensated on account of loss of income / attendant charges.
76. Taking into consideration the nature of injuries sustained by the petitioner, I am of the opinion that the same would Page 43 of 104 i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009] have kept her away from her household activities atleast for a period of four months.
77. The petitioner is required to be compensated on account of her incapacitation to carry out her household obligations which she was forced to get by engaging an attendant incurring expenses. The personal services, which she was rendering to her family members, can be quantified in terms of money by taking into consideration the minimum wages prevailing at the time of accident with respect to a semiskilled worker.
78. Minimum wages prevailing at the time of accident with respect to a semiskilled worker were Rs.3849 which are rounded off to Rs.3900/
79. Considering the gravity of injuries sustained by the petitioner during the period of her incapacitation of performing Page 44 of 104 i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009] household activities, the compensation would come out to Rs.3900 x 4 months = Rs.15,600.
80. I, therefore, award a sum of Rs.15,600/ to the petitioner towards Loss of Income / Attendant Charges.
d) PAIN & SUFFERING:
81. Pain and suffering is covered under non pecuniary damages. To calculate the same, nature of injuries sustained by the injured, duration during which he got the medical treatment and was confined to bed, are some of the factors which are required to be taken into account.
82. In the present case, it is apparent on the basis of the medical record proved on record that immediately after the accident, petitioner was taken to DDU Hospital where she was Page 45 of 104 i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009] medically examined and MLC was prepared. It is further clear from the medical treatment record of the petitioner that subsequent to her intial hospitalization at DDU Hospital, she was taken to Central Hospital, Tilak Nagar where she remained admitted for a crucial period of three days as she had sustained ''grevious injuries'' in the present accident.
83. Perusal of Discharge Card of the petitioner prepared at Central Hospital, Tilak Nagar, placed on record goes on to reveal that petitioner had sustained "fracture of pubic rami"and other multiple other injuries in the accident. Medical Treatment Record Ex.PW.1/12 reveals that despite three days hospitalization at Central Hospital, Tilak Nagar, petitioner could not recuperate from the injuries sustained by her and her treatment as an OPD Patient continued for a considerable period of time. Page 46 of 104
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84. The mental agony which petitioner might have undergone at the time of accident, cannot be equated or quantified in terms of money. Physical pain which the petitioner must have undergone during the course of treatment would have been immense.
85. To compensate the petitioner under this head, I award a sum of Rs.40,000/ to the petitioner for "Pain and Suffering.
e) CONVEYANCE & SPECIAL DIET :
86. PW1 deposed that owing to sudden demise of her daughter and sustenance of grevious injuries on her person in this very accident, her life became very miserable as she was complete dependent on her attendant for her movement / mobilization for performing her normal avocation of life. Page 47 of 104
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87. I have considered the medical treatment record & gravity of injuries sustained by the petitioner. In view thereof, I am of the opinion that petitioner would have paid repeated visits to the hospital / doctor for her follow up treatment incurring expenses on conveyance.
88. Further considering the fact that petitioner has sustained grevious injuries & severe head injuries in the present accident, I am of the opinion that petitioner was forced to take special diet to recover from the injuries sustained by her.
89. to the I, therefore, award a sum of Rs.15,000/ petitioner towards "Conveyance and Special Diet". Page 48 of 104
i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009] (II) Issue No.2 with respect to M.A.C.Pet.No.:810/08 "Tej Ram Gujjar Vs. Pramod Kr. & Ors' (i.e. with respect to death of Smt.Kalyani w/o Tej Ram) A) LOSS OF DEPENDENCY:
90. In his deposition as PW1 Sh.Tej Ram Gujjar deposed that she along with his four children are the only legal heirs of Smt.Kalyani Devi.
91. No contrary evidence has been led on record by the respondents and noone else has challenged the claim petition filed by the petitioner, therefore deposition of PW1 is to be believed, to this aspect.
92. Further as issue no.1 is decided in favor of the petitioners therefore petitioners are entitled for the compensation. Page 49 of 104
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93. Petitioner No.1 Sh.Tej Ram Gujjar appeared in the witness box as PW1. He filed his examination in chief by way of affidavit Ex.PW.1/A. PW1 deposed that his wife was merely 44 years of age at the time of accident and used to do tailoring / stitching work. He deposed that at the time of death of his wife was earning a sum of Rs.4500/ per month. He deposed that had his wife not met with the accident, then she would have gone on to earn much more than what she was earning at the time of her death.
94. It is contended by Ld.Counsel for the Insurance Company that no substantial piece of evidence has been brought on record by the petitioners to substantiate the deposition of PW1 with respect to income of deceased Smt.Kalyani. He contended that in absence of any documentary evidence with respect to income of deceased, loss of dependency can at best be computed on the basis of minimum wages prevailing at the time of accident without considering the future prospects as deceased was not working anywhere on permanent basis. it is contended by counsel Page 50 of 104 i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009] for the petitioners, that no document / diploma with respect to "stitching / tailoring course" done by the deceased has been placed on record. It is further contended that no document whatsoever with respect to the fact that deceased was doing 'stitching work" & used to earn about Rs.4500/ per month has been proved on record.
95. On the other hand, It is contended by Ld.Counsel for the petitioners that deceased was a "skilled person" equipped with cutting / tailoring / stitching skills and while doing so, she used to contribute a sum of Rs.4500 to the family income. It is contended that this amount be considered as her income, for the purposes of calculation of loss of dependency.
96. I have given my thoughtful consideration to the rival contentions.
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97. Section 168 of Motor Vehicles Act was promulgated by the Legislature which is required to be taken into consideration as guiding factor for the purposes of calculation of compensation. As per provisions of Section 168 of the Motor Vehicles Act, victims of a road accident are required to be granted ''just compensation''. Although, this ''just compensation'' is not defined anywhere, however the same has to be assigned such a meaning, so as to further the 'object' for which the Legislature has brought this provision on the Statute Book.
98. As there is no documentary evidence of the income of petitioner on record, therefore for the purposes of calculation of loss of dependency, minimum wages prevailing at the time of accident are to be taken into account.
99. Considering the fact that deceased was doing 'stitching / tailoring work' prior to the accident, in view thereof, Page 52 of 104 i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009] minimum wages with respect to a Semiskilled worker are required to be considered for the purposes of computation of "loss of dependency".
100. Minimum wages with respect to a semiskilled worker as on date of accident ie.17.01.2009 were Rs.3849/ which are rounded off to Rs.3900/ for the purposes of calculation.
101. Although counsel for the insurance company has submitted that there is no evidence on record with respect to the future prospects of the deceased, therefore the same cannot be taken into account. He contended that the normal method of calculating income of deceased with appropriate multiplier after deducting the personal expenses out of the total income, the exact loss of dependency can be assessed.
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102. This contention of Ld.Counsel for the insurance company to my mind is devoid of any force, in view of the law laid down by Hon'ble High Court of Delhi in case titled "Narender Bishal & Another V/s Sh.Ramit Singh & Ors." bearing MAC.App.No.100708/2006 decided on 20th February 2008. In the said judgment, Hon'ble High Court of Delhi had considered the law laid down by Hon'ble Supreme Court in "General Manager Kerala Transport Road Corporation V/s Susamma Thomas"
reported as 1994 ACJ 1 (SC) as well as in "Smt.Sarla Dixit &Ors.
V/s Balwant Yadav & Ors. reported as AIR 1996, SC1274".
103. After considering all these judgments, Hon'ble High Court of Delhi considered and answered as to what should be done in cases where petitioners have failed to establish by any reliable evidence to prove the exact income of the deceased as well as future prospects. The court also considered and examined as to whether the Tribunal should consider the revision which takes Page 54 of 104 i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009] place under Minimum Wages Act and whether the same can be equated with the future prospects of the deceased or not. It was held as under: "As would be evident from catena of judgments of the Supreme Court, the future prospects have no correlation with the price index, inflation or denunciation of currency value. The future prospects would necessarily mean advancement in future career, earnings and progression in one's life. It could be considered by seeing, from which post a person began his career, what avenues or prospects he has while being in a particular avocation and what targets he/she would finally achieve at the end of his career. The promotional avenues, career progression, grant of selection grades etc. are some of the broad features for considering one's future prospects in one's career.
The minimum wage, in the very context of economy has a correlation with the growth and development of the nation's economy, postulating increase in the price index, reduction of purchasing power with the denunciation of currency value and consequent fixation of minimum wages giving some periodical increase so as to ensure sustenance and survival of the workman class. Keeping this in view, under no Page 55 of 104 i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009] circumstance the revision of minimum wages can be treated on the same footing with the factor of future prospects.
For instance, minimum wages of unskilled workman in the year 2000 were Rs.2524/ under the Minimum Wages Act. The said minimum wages in the year 2007 for the same class of unskilled workman came to be Rs.3470/ under the Act. This increase is not due to any promotion of unskilled workman or any kind of advancement in his career but the same are due to increase in price index and cost of living which are the determining factors taken into consideration for increasing the wages under the Minimum Wages Act. The nature of the job of unskilled workman will not change as the same shall remain unchanged. The same principle may be true even in the case of business or trade or other such allied activities where the future prospects of the deceased can be considered on the basis of his assets, income tax return, wealth tax return, balance sheet etc. But as far as the increase in the minimum wages is concerned the same takes into consideration the price index and the inflationary trends and the same have no correlation with the future prospects of a skilled, semiskilled or an unskilled workman." Page 56 of 104
i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009]
104. In view of above and considering the fact that minimum wages gets double in ten years time, therefore for the purposes of calculation of the average gross salary of the deceased, the criteria laid down by Hon'ble Supreme Court in "Smt.Sarla Dixit &Ors. V/s Balwant Yadav & Ors case (supra) is to be applied.
105. Hence in the present case, the minimum wages prevailing at the time of accident were Rs.3849/ which are rounded off to Rs.3900/ for the purposes of calculation and keeping in view of the law laid down down by Hon'ble Supreme Court regarding future prospects, the same comes out to be Rs.3900 + Rs.7800 = Rs.11,700 : 2 = Rs.5850/.
106. Out of this average gross income of deceased Smt.Kalyani and considering that five petitioners including her husband and four children were dependent on the deceased, then Page 57 of 104 i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009] she by no stretch of imagination could have spent more than one fourth of her earning on herself.
107. In view thereof, onefourth share of the income of deceased is required to be deducted towards her personal expenses. Accordingly, monthly loss of dependency comes out to be Rs. 5850 - Rs.1462 (1/4th thereof) = Rs.4388/. Yearly loss of dependency will come to Rs.4388 x 12 = Rs.52,656/
108. As per the evidence on record, the year of birth of deceased Smt.Kalyani is 1965. Considering the fact that accident had taken place in the year 2009, meaning thereby that deceased was 44 years of age at the time of accident.
109. In view thereof, as per law laid down by Hon'ble Supreme Court in ''Smt.Sarla Verma's Case, the multiplier of '14' years is required to be considered for computation of actual Page 58 of 104 i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009] loss of dependency. In view thereof, actual loss of dependency would come out to Rs.52,656 x 14 = Rs.7,37,184/ which is rounded off to Rs.7,38,000/.
110. I therefore award a sum of Rs.7,38,000/ to the petitioners towards ''loss of dependency''.
b) LOSS OF LOVE AND AFFECTION :
111. Deceased Smt.Kalyani has left behind her husband besides four children. The children of deceased due to untimely death of their mother would have been bereft of her tender touch, care and concern which they otherwise, would have got in bulk, had she not met with the accident.
112. Pain and suffering of the petitioners due to untimely death of their sole support, who was serving all financial and emotional needs of the family cannot be measured by any scale. It Page 59 of 104 i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009] is clear that deceased was the sole pillar of the family on whom petitioners were looking upto, for not only the fulfillment of their day to day needs but also for those sentimental / emotional which no money can compensate.
113. It is clear that rash and negligent act on the part of respondent no.1 had snatched the precious life of deceased Smt.Kalyani due to which petitioners have been bereft of the priceless company, love, affection, care and concern of deceased, which cannot be reimbursed by any monetary means.
114. Further care, love and affection which petitioner no.1 Sh.Tej Ram, being husband of deceased at this time of his married life required from his wife, is also not capable of being equated in terms of money. Petitioner no.1 has also suffered loss of consortium due to untimely death of deceased. Page 60 of 104
i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009]
115. Hon'ble High Court of Delhi in case titled "Kailash Kaur & Another V/s New India Insurance Company Limited"
bearing M.A.C.Appeal No.318/08 decided on 24.03.2009, has held that compensation for loss of love and affection and loss of company should be at the rate of Rs.25,000/ to each of the petitioner.
116. Considering the facts and circumstances, I award a sum of Rs.1,25,000/ @ Rs.25,000 x 5 petitioners, on account of 'loss of love and affection'.
c) LOSS OF CONSORTIUM:
117. Consortium suggests partnership, association, companionship or togetherness and takes in mutual assistances also. Injury to or death of a spouse must proved cause of action to the other spouse to claim compensation for loss of consortium. Page 61 of 104
i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009]
118. It is stated that petitioner no.1 had suffered loss of consortium of which she was deprived of due to negligent driving of respondent no.1. Petitioner No.1 has suffered loss of companionship of her husband and is thus entitle for loss of consortium.
119. Considering the age and facts and circumstances, a sum of Rs.10,000/ is awarded to petitioner no.1 Sh.Tej Ram Gujjar towards 'loss of consortium' who lost company of his wife at such a critical stage of his married life, which he would have required for fulfillment of certain important responsibilities of their children.
d) FUNERAL EXPENSES:
120. I award a sum of Rs.10,000/ to the petitioners on
account of funeral expenses.
Page 62 of 104
i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009]
&
ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009]
&
iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009]
e) LOSS TO ESTATE:
121. I award Rs.10,000/ to the petitioners on account of "Loss to Estate".
(III) Issue No.2 with respect to M.A.C.Pet.No.: 968/09 titled as "Subudhi Vs. Pramod Kr.& Ors' (with respect to death of Baby Leela d/o Sh.Subudhi)
122. As issue no.1 is decided in favor of the petitioners in affirmative, petitioners thus become entitle for the compensation. Quantum of the compensation however is required to be calculated.
123. In view of the observations made by me in Para56 & Para57 (supra), in order to calculate the amount of compensation, the sum is required to be considered under the various heads as delineated above by Hon'ble Apex Court. Page 63 of 104
i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009]
124. Petitioners are parents of the deceased. Petitioner no.1 during the course of his deposition stated that they are the only legal heirs of the deceased being his parents. This testimony has remained unchallenged as nothing contradictory was brought on record to controvert the stand taken by the petitioners as no other legal heirs filed any other application or contested the claim.
125. Since issue no.1 has been decided in favor of the petitioner that deceased has died due to injuries sustained in the accident with the offending vehicle. The petitioners are entitled for compensation under the provisions of Motor Vehicle Act.
126. In the case of "New India Assurance Company Limited V/s Satender & Ors." reported as JT 2006(10) SC 234, it was held by Hon'ble Supreme Court that:
"In case of young children of tender age, in view of uncertainties abound, neither their Page 64 of 104 i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009] income at the time of death nor the prospects of future increase in their income nor chances of advancement of their career are capable of proper determination on estimated basis. The reason is that at such an early age, the uncertainties in regard to their academic pursuits, achievement in career and thereafter advancement in life are so many that nothing can be assumed with reasonable certainty. Therefore neither the income of the deceased child is capable of assessment on estimated basis nor the financial loss suffered by the parents is capable of mathematical computation."
127. In case of "Shyam Narayan V/s Kitty Tours Travels and Ors. Reported as IV (2005) ACC1" delivered by Hon'ble Mr.Justice Pradeep Nandrajog of Hon'ble High Court of Delhi has held that in case of death minor child below 15 years as per second schedule appended to Section 163 (A) of Motor Vehicle Act 1988, notional income should be taken of Rs.15,000/ per annum to which multiplier of 15 is to be taken as provided in second Page 65 of 104 i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009] schedule appended to Section 163 A of the Motor Vehicle Act, therefore compensation comes out to be Rs.2.25 lakhs. On this Hon'ble High Court has awarded Rs.50,000/ on account of the loss of company of child and for pain & suffering, therefore a total amount of Rs.2.75 lakh was awarded by Hon'ble High Court of Delhi.
128. After considering the judgments as mentioned above, I am of the considered opinion that when specifically notional income has been provided in second schedule appended to Section 163 A of the Motor Vehicle Act. The notional income of deceased in the present case has to be taken as Rs.15,000/ per annum and in second schedule itself multiplier of 15 has been provided for the age of deceased being 16 months.
129. Although the present petition is filed by the petitioners under section 166 of the Motor Vehicles Act, however considering Page 66 of 104 i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009] the fact that deceased was a minor child who was only 16 months old and was not earning any amount, guidance for the purposes of calculation of loss of dependency can be had from the Second Schedule appended to section 163 A of the Motor Vehicles Act, where ''notional income'' is provided, which has got the statutory recognition. Therefore, total loss of dependency will be Rs.2.25 lakhs as provided in the judgments of Hon'ble High Court of Delhi.
130. I, therefore, award Rs.2.25 lakhs to the petitioners on account of "loss of dependency".
(b) : N O N P E C U N I A R Y D A M A G E S :
(bi) LOSS OF LOVE & AFFECTION / LOSS TO
ESTATE / FUNERAL EXPENSES :
131. In case titled ''R.K.Malik Vs. Kiran Pal, III (2006) ACC 261'', Hon'ble High Court have considered various heads Page 67 of 104 i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009] under nonpecuniary damages for grant of compensation like loss of love and affection, loss to estate and funeral expenses etc. Hon'ble High Court after considering all these damages, had granted a sum of Rs.75,000/ towards ''nonpecuniary damages'' to the unfortunate parents who had lost their dear child in a road accident.
132. This amount of Rs.75,000/ awarded towards ''non pecuniary damages'' by Hon'ble High Court, was upheld by Hon'ble Supreme Court in case titled "R.K.Malik V/s Kiran Pal"
reported as 2009(8) Scale 451. The same amount was subsequently awarded by Hon'ble High Court in another case titled ''Jitender Kumar & Anr. V/s Oriental Insurance Company Limited & Anr.'' bearing M.A.C.Appeal number 68/2009 decided on 31.07.2009 towards ''non pecuniary damages'' after considering all the precedents relating to death of minor in road accidents.Page 68 of 104
i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009]
133. The facts of the present case also requires grant of similar compensation towards 'nonpecuniary damages' as awarded by Hon'ble High Court and Hon'ble Supreme Court in the above mentioned cases.
134. In view of the observations made and law laid down by Hon'ble Apex Court in the above mentioned cases , I award a sum of Rs.75,000/ to the petitioners towards ''nonpecuniary damages''.
(c) COMPENSATION TOWARDS ''FUTURE PROSPECTS'' :
135. As per law laid down by Hon'ble Apex Court in ''R.K.Malik Vs. Kiran Pal, 2009 (8) Scale 451'' it was held that claimants ie. unfortunate parents who are survived by their dear child, who died in a road accident, are also entitled to Page 69 of 104 i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009] compensation towards 'future prospects'. It was further held by Hon'ble Apex Court that the claimants are entitled to be compensated towards ''future prospects'' and were granted compensation of Rs.75,000/ towards future prospects of the children.
136. In view of law laid down by Hon'ble Apex Court in R.K.Malik Vs.Kiran Pal(Supra), I award a sum of Rs.75,000/ to petitioners being parents of deceased Guddu, towards compensation under the head of "future prospects".
LIABILITY
137. As the offending vehicle was being driven in a negligent manner by Respondent No.1 and owned by Respondent No. 2, therefore, the primary liability to compensate the petitioners with respect to the above mentioned award is that of Respondent No. 1& 2.
Page 70 of 104
i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009]
138. It is an admitted position on record that the offending vehicle was insured with Respondent No. 3, the Insurance Company. Therefore, Insurance Company becomes contractually liable to compensate the petitioner for the above mentioned awarded amount.
139. Counsel for the Insurance Company, in his quest to have the Insurance Company exonerated of its contractual obligation contended that the offending vehicle was being driven in violation of the terms of the contract. He contended that respondent no. 1 was not holding any valid and effective Driving Licence as on date of accident. He contended relying upon the deposition of their witness namely Ms.Sunanda Nimisha, Executive (Legal) who appeared in the witness box as R3W1 that the insured had committed breach of contract. He further contended that the insured was served with notice under order 12 rule 8 CPC, calling upon him to produce driving licence of driver of the offending Page 71 of 104 i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009] vehicle, which he failed to produce. It is contended by Counsel for Insurance Company that they got the driving licence of respondent no.1 verified from Licencing Authority, Eita from their investigator, who has furnished his report Ex.R3W1/F as per which driving licence of respondent no.1 was not valid as on date of accident as he was not authorized to drive "HTV" on the date of accident. It is further contended by Ld.Counsel for Insurance Company that as per their report Ex.R3W1/F, endorsement with respect to HTV on driving licence of respondent no.1 was made w.e.f. 28.01.2009. It is further contended that as accident had taken place on 17.01.2009, much prior to the date when necessary endorsement with respect to "HTV" was made on the driving licence of respondent no.1, therefore Insurance Company is not liable to indemnify the insured.
140. In order to substantiate their plea and in order to support the report of their investigator, the insurance company had summoned witness from the Licencing Authority, Eita. In response Page 72 of 104 i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009] to the summons, a detailed report was sent by post, directly to the court by Licencing Authority, Eita on 01.02.2011. The said report was taken on record as no witness appeared from the Licencing Authority, matter was adjourned. Subsequent thereto, on same date, one Sh.J.P.Gupta, Assistant from Licencing Authority, Eita had tendered his appearance and produced records of Licencing Authority, in support of their report. Statement of this witness was not recorded as parties to the petition and their counsels had already left for that day. However it was ordered that report from Licencing Authority shall be readinevidence and shall be considered as such.
141. Perusal of report submitted by the Licencing Authority, Eita, makes it evident that driving licence at the given number was issued in the name of respondent no.1 authorizing him to drive "LMV". Record further evinces the fact that endorsement with respect to authorization to drive "HTV" was made subsequent to the date of accident ie. on 28.01.2009. Page 73 of 104
i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009]
142. Respondent no.2 Naresh Kumar, owner of the offending vehicle appeared in the witness box as R2W1 and deposed that he had checked the driving skills of respondent no.1 before appointing him as his driver. Respondent no.2 further deposed that he had also satisfied himself about the competence of respondent no.1 to drive the vehicle.
143. On being cross examined on behalf of the Insurance Company, insured ie R2W1 admitted the fact that he himself does not possess any expertise or experience to drive "HTV"or a commercial vehicle as he himself had got driving licence for "LMV (nontransport vehicle)". He further admitted the fact that he had not mentioned in his written statement that he had taken test of driving skills of respondent no.1. Page 74 of 104
i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009]
144. I have considered the submissions advanced by counsel for respondent no.3 Insurance Company, Ld.Counsel for respondent no.2 and have also considered the deposition of R2W1 Naresh Kumar, the insured. I have also gone through the evidence led on record by respondent no.3 Insurance Company.
145. Legislature being conscious of the magnitude of the plight of the victims of road accident have introduced the present beneficial provisions to protect the interest of third parties i.e. victims of road accident so as to enable them to claim compensation from the driver/ owner of the vehicle. Legislature in its wisdom has made it a statutory obligation of every owner to have his vehicle insured against third party risks. This has been made mandatory so that victims of road accident even after being granted compensation from the court, should not run from pillar to post to have the orders of the court executed and to facilitate them to get the same from the Insurance Company. Page 75 of 104
i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009]
146. Simultaneously in Section 149(2) of the Motor Vehicle Act, Legislature has provided certain defences which insurance company can raise to contract ' out of the contract' of the insurance which it had with the insured, subject off course to proof of those defences.
147. Hon'ble Supreme Court of India in case titled "National Insurance Company Limited Vs. Swaran Singh"
reported as AIR 2004 Supreme Court 1531, has enumerated the defences which an insurance company can raise. Hon'ble Apex court has also made it clear that the insurance company cannot be exonerated of its liability, merely by raising its defence, the onus to prove the same lies on them only.
148. In the present case, respondent no.1 failed to appear during the course of proceedings and failed to lead any evidence on record. The onus, however, remained on the Insurance Company Page 76 of 104 i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009] itself to establish on record not only the fact that respondent no. 1 did not possess a valid and effective driving license, but also to prove on record that the insured had committed a willful default by handing over his vehicle to respondent no. 1, knowing and having reasons to believe that he was not holding a valid driving license and was not competent to drive the offending vehicle.
149. I have gone through the evidence on record and have perused the precedents relied upon by Counsel for the Insurance Company as well as Counsel for the insured, ie respondent no.2 Sh.Naresh Kumar.
150. It has been held by Hon'ble Apex Court in the case titled as Lal Chand Vs. Oriental Insurance Company Ltd. reported as 2006 (3) TAC321 SC that Insurance Company had to show and prove on record that due and adequate care was not taken by the owner or owner had the knowledge that driver was not holding a Page 77 of 104 i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009] valid driving license. Only in that eventuality the Insurance Company can be absolved of its contractual obligation, not otherwise.
151. It is pertinent to make a mention of the observations made by Hon'ble High Court of Delhi in the case titled as National Insurance Company Ltd. Vs. Nirabjit Kaur and others reported as 2010 ACJ 121. In this case, Hon'ble High Court had considered the observations made by Apex Court in Swaran Singh's case (Supra). The facts of the present case so far as imposition of liability to pay is concerned were the same as that were in National Insurance Company Ltd. Vs. Nirabjit Kaur and other (Supra). In the said case Hon'ble High Court of Delhi had observed as under : "The principal question that arises for determination in this appeal is as to "whether the insurance company can avoid its liability on the ground that the driver of the vehicle did not possess valid driving license at the time of accident?" Page 78 of 104
i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009] Chapter XI of the Act, providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object.
Section 149 of the Act provides as follows: "149, Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.
(1) xxx xxx xxx
(2) No sum shall be payable by an
insurer under sub section (1) in respect of any
judgment or award unless, before the commencement of the proceedings in which the judgment or award is given the insurer had notice through the court, or as the case may be,the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal : and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:Page 79 of 104
i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009] xxx xxx xxx
(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving license during the period of disqualifications or"
In a plethora of cases, the Apex Court and various High Courts have held that if there is a condition in the insurance policy that only a licensed driver is to drive the vehicle, the insurance company would not be liable in case there is a breach.
152. The Insurance Company, in the present case in support of their plea / defence had examined Miss Sunanda Nimisha, who proved the copy of notice under order 12 rule 8 CPC along with its postal receipts send to the insured to produce the driving licence.
153. The owner of the offending vehicle namely Sh.Naresh Kumar, i.e respondent no.2 appeared in the witness box as R2W1. Page 80 of 104
i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009] He during the course of his deposition had stated that at the time of employing respondent no.1, he had seen the driving licence, which he produced and after seeing the driving licence, he found the same to be genuine and employed him after taking his driving test.
154. From the evidence on record led by the Insurance Company in the form of R3W1, report regarding verification of driving licence of respondent no.1 (duly certified by the authority) sent to this Tribunal and also considering the record brought by Sh.J.P.Gupta, Assistant from the Licencing Authority, Aita, it has been established on record that respondent no.1 was issued a driving licence by said authority, authorizing him to drive "LMV (NonTransport) and Motor Cycle" from 21.11.2006. R3W1 deposed that respondent no.1 was subsequently authorized to drive "HTV", with effect from 28.01.2009 and an endorsement to that effect was made on his driving licence. Page 81 of 104
i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009]
155. Meaning thereby that, as on date of accident which took place on 17.01.2009, respondent no.1 was not authorized by any Licencing Authority to drive ''HTV or Commercial Vehicle''. Consequently, the Insurance Company had been able to establish on record that the driving licence of respondent no.1 was not valid and he was not authorized to drive the offending truck, which admittedly falls in the category of "HTV".
156. Respondent no.2, the insured in order to shift the burden on the Insurance Company did depose that he had taken driving test of respondent no.1 and had also seen his driving licence at the time of giving him employment as his 'driver'.
157. This deposition of respondent no.2 does not inspire confidence for multiple reasons. Firstly, in his written statement filed at the first instance, he failed to mention the fact that he had taken the driving test of respondent no.1 before employing him. Page 82 of 104
i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009] Secondly, if he had seen the driving licence of respondent no.1 at the time of giving him employment, then bare perusal of same, would have revealed to respondent no.2 that driving licence was issued to respondent no.1 by concerned Licencing Authority only for ''NonCommercial Vehicle'' as endorsement authorizing him to drive HTV was made only on 28.01.2009 i.e. after the date of accident. Thirdly, the contention of respondent no.2 is not plausible that he has satisfied himself after taking the driving test of respondent no.1. As he during the course of his cross examination, admitted the fact that he himself, did not possess any driving licence of commercial vehicle. He had also admitted that he does not have any expertise or experience to drive the commercial vehicle.
158. Consequently, if respondent no.2, ie. insured / owner of the offending vehicle himself did not possess the knowledge / skills or expertise to drive the commercial vehicle, then how could Page 83 of 104 i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009] he have satisfied himself of the skills of respondent no.1. It appears from deposition of R2W1 that the same has been made just as an ''afterthought'', in an attempt to escape his liability.
159. In view of these facts and circumstances, I am of the considered opinion that Insurance Company has been able to establish on record that the offending vehicle as on date of accident, was being driven by respondent no.1 ''without a valid and effective driving licence'' and respondent no.2 had handed over his vehicle to respondent no.1 knowing that he does not possess as valid driving licence to drive the truck. Consequently, insured had committed breach of terms of the policy. Therefore, liability to compensate the petitioners of all the three petitions remains that of respondent no.1 and respondent no.2.
160. However, balancing the "twin interest" of the Insurance company at one hand and that of the third party i.e. Page 84 of 104 i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009] petitioners, for whose benefit the present legislation was brought on the statute book, it is directed that the insurance company shall pay the compensation awarded to the petitioner within the time given in this award and shall have the right to recover the same from respondent no. 1 & respondent no.2.
161. In view thereof, I grant "recovery rights" to the Insurance company to get the awarded amount recovered from respondent no.1 and respondent no.2.
162. Issue No.2 is decided accordingly. Page 85 of 104
i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009] (I) :RELIEF in M.A.C.Pet.No967/2009 titled as SMT.RAM PYARI V/S PRAMOD KR. & ORS.: (with respect to injuries sustained by Smt.Ram Pyari)
163. In view of my finding on issue no. 1 & 2, petitioner Ram Pyari is entitled to following compensation:
a) MEDICINES & TREATMENT = Rs.10,000/
b) LOSS OF INCOME / ATTENDANT CHARGES= Rs.15,600/
c) PAIN AND SUFFERING = Rs.40,000/
d) CONVEYANCE & SPECIAL DIET = Rs.15,000/ TOTAL = Rs.80,600/ [Eighty thousands & six hundred only]
164. I hereby award a total compensation of Rs.80,600/ (Rupees Eighty thousands & six hundred only) to petitioner Ram Pyari for the injuries sustained by her, along with interest @ 9 % per annum from the date of filing of the petition till realization of the amount.
Page 86 of 104
i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009]
165. The entire awarded amount along with proportionate interest thereon in favor of petitioner Ram Pyari be transferred to her savings account, so as to facilitate her to withdraw the same as per her needs.
(II) :RELIEF in M.A.C.Pet.No810/2009 titled as TEJ RAM GUJJAR & ORS. V/S PRAMOD KR. & ORS.: (with respect to death of Smt.Kalyani)
166. In view of my finding on issue no.1 and 2, petitioners are entitled to following compensation:
1. LOSS OF DEPENDENCY Rs.7,38,000/
2. LOSS OF LOVE & AFFECTION Rs.1,25,000/
3. LOSS OF CONSORTIUM Rs.10,000/
4. FUNERAL EXPENSES Rs.10,000/
5. LOSS TO ESTATE Rs.10,000/ TOTAL Rs.8,93,000/ (Rupees Eight Lakhs & Ninety Three Thousands only.) Page 87 of 104 i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009]
167. I hereby award a total compensation of Rs.8,93,000/ (Rupees Eight Lakhs and Ninety Three Thousands only.) to the petitioners along with interest @ 9 % per annum from the date of filing of the petition till realization of the amount.
168. Perusal of record reveals that interim relief amounting to Rs.50,000/ was granted to the petitioners vide orders dated 28.07.2009 which is required to be deducted from the final awarded amount ie. Rs.8,93,000 - Rs.50,000 = Rs.8,43,000/. Therefore, petitioners are entitled to get balance awarded amount of Rs. 8,43,000/ along with proportionate interest thereon.
169. Out of the balance awarded amount of Rs.8,43,000/ along with proportionate interest thereon, a sum of Rs.3,43,000/ is awarded to petitioner no.1 Sh.Tej Ram Gujjar, being husband of deceased alongwith proportionate interest thereon. Out of this awarded amount, a sum of Rs.2,50,000/ be deposited in the form Page 88 of 104 i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009] of an FDR in the name of petitioner no.1 Sh.Tej Ram Gujjar, for a period of 5 years in following terms:
(a) A sum of Rs.50,000/ for a period of one year.
(b) A sum of Rs.50,000/ for a period of two years.
(c) A sum of Rs.50,000/ for a period of three years.
(d)A sum of Rs.50,000/ for a period of four years.
(e) A sum of Rs.50,000/ for a period of five years.
170. A sum of Rs.1,25,000/ each along with proportionate interest thereon, is awarded to petitioner no.2 to petitioner no.5 being children of deceased Smt.Kalyani.
171. The entire awarded amount along with proportionate interest thereon, in favor of petitioner no.5 shall be kept in the form of FDR in his name, till he attains 18 years of age.
172. The respective share of awarded amount in favor of petitioner no.2 to petitioner no.4 be transferred to their savings bank accounts.
Page 89 of 104
i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009] (III) :RELIEF in M.A.C.Pet.No968/2009 titled as SUBUDHI V/S PRAMOD KR. & ORS.: (with respect to death of Baby Leela)
173. In view of my finding on issue no.1 and 2, petitioners are entitled to following compensation:
1. LOSS OF DEPENDENCY RS.2,25,000/
2. NONPECUNIARY DAMAGES RS.75,000/
3. FUTURE PROSPECTS RS.75,000/ ________________________________________________ TOTAL Rs.3,75,000 / (Rupees Three Lakhs Seventy Five Thousands only.)
174. I hereby award a total compensation of Rs.3,75,000/ (Rupees Three Lacs and Seventy Five Thousands only) to the petitioners, along with interest @ 9 % per annum from the date of filing of the petition till realization of the amount. Page 90 of 104
i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009]
175. Perusal of record reveals that interim relief was not granted to the petitioners. In view thereof, entire awarded amount along with proportionate interest thereon be disbursed amongst the petitioners.
176. Out of this awarded amount of Rs.3,75,000/, a sum of Rs.1,87,500/ each is awarded to petitioner no.1 Subudhi and petitioner no.2 Smt.Ram Pyari, along with proportionate interest thereon, being parents of deceased Baby Leela.
177. Out of the awarded amount of Rs.1,87,500 each in favor of petitioner no.1 Subudhi and petitioner no.2 Smt.Ram Pyari, a sum of Rs.70,000/ each, be kept in the form of Two Separate FDRs in the respective names of petitioner no.1 and petitioner no.2 for a period of five years. Page 91 of 104
i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009] DEPOSITION OF AWARDED AMOUNT WITH STATE BANK OF INDIA, DWARKA COURT BRANCH, NEW DELHI IN FAVOR OF PETITIONERS:
178. In terms of the directions given by Hon'ble High Court in case titled "Rajesh Tyagi Vs.Jaibir Singh and Ors." bearing FAO number 842/2003 decided on 08.06.2009, UCO Bank / State Bank of India has agreed to open a Special Fixed Deposit Account for the victims of road accidents.
179. As per orders of Hon'ble High Court in Case titled ''New India Assurance Co. Ltd Vs. Ganga Devi & Ors bearing MAC. App. 135/2008'' as well as in another case titled as ''Union of India V/s Nanisiri'' bearing M.A.C.Appeal No.682/2005 dtd.13.01.2010, directions were given to the Claims Tribunal to deposit part of the awarded amount in fixed deposit in a phased manner depending upon the financial status and financial needs of the claimants. Page 92 of 104
i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009]
180. In consonance to the idea by which part of the awarded amount is ordered to be kept in fixed deposit / savings account by Hon'ble High Court, Insurance company is directed to deposit the awarded amount in favour of the petitioners of all the three petitions, with State Bank of India, Dwarka Court Complex Branch, against accounts of :
1. Ram Pyari, W/o.: Shri Subudhi,
2. Subudhi, S/o.: Shri Sawal Ram.
And
3. Tej Ram Gujjar, S/o.: Late Shri Bhagi Lal Gujjar.
4. Kamal Singh, S/o.: Shri Tej Ram Gujjar.
5. Savitri Devi, D/o.: Shri Tej Ram Gujjar.
6. Dhara Singh, S/o.: Shri Tej Ram Gujjar.
7. Maharaj Singh, S/o.: Shri Tej Ram Gujjar.
within a period of 30 days from today, failing which respondent no.3 Insurance Company shall be liable to pay future interest @ 12%per annum till realization (for the delayed period).
Page 93 of 104
i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009]
181. Upon the aforesaid amount being deposited, State Bank of India, Dwarka Court Complex Branch, New Delhi, is directed to keep the awarded amount in the "fixed deposit / saving account'' in the following manner: (I) RELEASE OF AMOUNT IN PETITION NO.:967/09 RAM PYARI VS. PRAMOD KR. & ORS.:
(i) The entire awarded amount of Rs.80,600/ in favor of petitioner Ram Pyari along with proportionate interest thereon, be transferred to her savings bank account, so as to facilitate her to withdraw the same as per her needs. Page 94 of 104
i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009] (II) RELEASE OF AMOUNT IN PETITION NO.:810/09 "TEJ RAM GUJJAR VS. PRAMOD KR. & ORS." :
(i) Out the total awarded amount of Rs.3,93,000/ in the name of petitioner no.1 Sh.Tej Ram Gujjar along with proportionate interest thereon, a sum of Rs.2,50,000/ be kept in the form of an FDR in his name for a period of five years as mentioned in para no.169. (supra).
(ii)Remaining amount in the share of petitioner no.1 Sh.Tej Ram Gujjar shall be transferred to his savings account, so as to facilitate him to withdraw the same, as per his needs.
(iii) Awarded amount of Rs.1,25,000/ each in favor of petitioner no.2 to petitioner no.4 along with proportionate interest thereon, be transferred to their savings account, so as to facilitate them to withdraw the same as per their needs.
Page 95 of 104
i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009]
(iv) A sum of Rs.1,25,000/ awarded to petitioner no.5 shall be kept in the form of FDR in his name till he attains 18 years of age.
(v) Petitioner No.5 Maharaj Singh, minor son of deceased is entitled to get monthly / quarterly interest on the FDR prepared in his name, through his father / natural guardian / petitioner no.1 Sh.Tej Ram Gujjar.
(vi) The interest on the fixed deposit be paid to the petitioners / claimants by Automatic Credit of interest of their saving bank accounts with State Bank of India, Dwarka Court Branch, New Delhi.
(vii)Withdrawal from the aforesaid account shall be permitted to claimants / petitioners after due verification Page 96 of 104 i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009] and the Bank shall issue photo identity Card to claimants / petitioners to facilitate identity.
(viii) No cheque book be issued to claimants / petitioners without the permission of this court.
(ix) The original fixed deposit receipts shall be retained by the Bank in safe custody. However, the original Pass Book shall be given to the claimants / petitioners alongwith the photocopy of the FDRs.
(x)The original fixed deposit receipts shall be handed over to claimants / petitioners at the end of the fixed deposit period.
(xi) No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the permission of this Court. Page 97 of 104
i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009]
(xii) Half yearly statement of account be filed by the Bank in this court.
(xiii) On the request of claimants / petitioners, the Bank shall transfer the Savings Account to any other branch of State Bank of India, according to their convenience.
(xiv)Claimants / petitioners shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit Account to Branch Manager, State Bank of India, Dwarka Court Complex Branch, New Delhi. Page 98 of 104
i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009] (III) RELEASE OF AMOUNT IN PETITION NO.:968/09 "SUBUDHI VS. PRAMOD KR. & ORS." :
(i) Out of the total awarded amount of Rs.1,87,500/ each in along with proportionate interest thereon in favor of petitioner no.1 and petitioner no.2, a sum Rs.70,000/ each in the respective names of petitioner no. 1 and petitioner no.2 be kept in the form of separate FDRs for a period of five years.
(ii) Remaining awarded amount in respective share of petitioner no.1 and petitioner no.2 be transferred to their savings account, so as to facilitate them to withdraw the same as per their needs.
(iii) The Bank shall open Two Separate Savings Accounts in the names of both the petitioners and the entire interest Page 99 of 104 i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009] on all the aforesaid fixed deposits be credited in the said accounts.
(iv) The interest on the aforesaid fixed deposits shall be paid monthly by automatic credit of interest in the Savings Accounts.
(v) Withdrawal from the afore said account shall be permitted to the petitioners after due verification and the Bank shall issue photo identity Card to the petitioners to facilitate their identity.
(vi)No cheque book be issued to the petitioners without the permission of the Court.
(vii)The original FDRs shall be retained by the Bank in the safe custody. However, the original Pass Book shall be Page 100 of 104 i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009] given to the claimants / respondents along with the photocopy of FDRs.
(viii) The original Fixed Deposit Receipts shall be handed over to the claimants at the end of the fixed deposit period.
(ix) No Loan, advance or withdrawal shall be allowed on the said FDRs without the permission of this Court.
(x) On the request of claimants, the Bank shall transfer the Savings Accounts to any other branch of State Bank of India in Delhi according to the convenience of the claimants.
(xi) Claimants / petitioners shall furnish all the relevant documents for opening of the Saving Bank Account and Page 101 of 104 i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009] Fixed Deposit Account to Branch Manager, State Bank of India, Dwarka Court Complex Branch, New Delhi. DIRECTIONS FOR THE INSURANCE COMPANY (From Para 182 to Para 185):
182. The Insurance company is directed to file the compliance report in this court of their having deposited the awarded amount with State Bank of India, Dwarka Court Branch to this tribunal within 45 days from today.
183. The Insurance Company is directed to furnish a copy of this award alongwith the cheques of the awarded amount to the Branch Manager of State Bank of India, Dwarka Court Branch, so as to facilitate the Branch Manager of State Bank of India, Dwarka Court Branch to have the identification of the claimants/ petitioners in whose favour the award has been passed. Page 102 of 104
i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009]
184. The Insurance Company is further directed to furnish the claim petition number and name of the parties at the back side of the cheques of the awarded amount so that the same be not misplaced.
185. The Insurance Company shall intimate to the claimants / petitioners about their having deposited the cheques in favor of the petitioners in terms of the award, at the address of the petitioners mentioned at the title of the award, so as to facilitate them to withdraw the same.
186. Copy of this award / judgment be given to the petitioners who are directed to furnish the same to the Branch Manager of State Bank of India, Dwarka Court Branch, New Delhi, for necessary compliance after their having received the notice of the deposit of awarded amount from the Insurance company. Page 103 of 104
i. [Ram Pyari Vs. Pramod Kumar & Ors. {Suit no.:967/2009] & ii. [Tej Ram Vs. Pramod Kumar & Ors. {Suit no.:810/2009] & iii. [Subudhi Vs. Pramod Kumar & Ors. {Suit no.:968/2009]
187. In view of my finding on issue no.2, "Recovery Rights"
are granted to respondent no.3 Insurance Company to get the awarded amount recovered from respondent no.1 and respondent no.2.
188. Copy of this Award / Judgment be given to counsel for the Insurance Company for necessary compliance.
189. Copy of this order be kept in the files of all the three claim petitions.
190. File be consigned to record room after receipt of the compliance report from the Insurance company. ANNOUNCED IN OPEN COURT On the 03rd Day of September, 2011.
(KANWALJEET ARORA) PRESIDING OFFICER, MOTOR ACCIDENTS CLAIMS TRIBUNAL, DWARKA COURTS, NEW DELHI.
Page 104 of 104