Delhi District CourtMr. Jitender Kumar vs Mr. Ramesh Bajaj on 29 September, 2021IN THE COURT OF MS. EKTA GAUBA MANN\n               PO:MACT-1 (NORTH): ROHINI: DELHI\n\nMACT No. 6225/16\nFIR No. 98/14\nPS Others.\n\nMr. Jitender Kumar\nS/o Mr. Randhir Singh\nR/o Barrack no.14, New Police Line,\nKingsway Camp, PS Mukherjee Nagar, Delhi.\n                                                    ....Petitioner\n\n                                     VERSUS\n\n   1. Mr. Ramesh Bajaj\n       S/o Mr. Krishan Baldev\n       R/o Village Shahbad, Tehsil Tijara,\n       Alwar, Rajasthan.\n\n   2. The Shriram General Insurance Company Limited\n       E-8, EPIP, RIICO, Industrial Area,\n       Sitapur, Jaipur, Rajasthan.\n       Also at: 1001, Ground Floor,\n       Arya Samaj Road, Naiwala, Karol Bagh,\n       New Delhi.\n                                                    ....Respondents\n\n           DATE OF INSTITUTION                  : 01.04.2016\n           AWARD RESERVED ON                    : 24.09.2021\n           DATE OF AWARD                        : 29.09.2021\n\n                    FORM - IV B\nSUMMARY OF COMPUTATION OF AWARD AMOUNT IN INJURY\n     CASES TO BE INCORPORATED IN THE AWARD\n\n  1 Date of accident                     : 18.06.2014\nMACT no.6225/16                                                       Page 1 of 23\nJitender Kumar Vs. Ramesh Bajaj & Anr.\n     2 Name of injured                    : Sh. Jitender Kumar\n    3 Age of the injured                 : 44 years\n    4 Occupation of the injured          : Government       Service   (Constable       in\n                                          Delhi Police)\n    5 Income of the injured              : Rs.37,822/- per month, as per salary slip\n    6 Nature of injury                   : Not mentioned.\n    7 Medical treatment taken by the : PGI Rohtak Hospital, Haryana.\n      injured                          Medanta Hospital, Gurgaon, Haryana.\n                                       Sunder Lal Jain Hospital, Ashok Vihar,\n                                       Phase-3, Delhi.\n    8 Period of hospitalization          : 23.06.2014 to 28.06.2014.\n    9 Whether        any      permanent : N/A.\n      disability ? If yes, give details.\n\n\n10.                             Computation of Compensation\nS.No Heads                                            Awarded by the Tribunal\n\n.11.     Pecuniary Loss(i)     Expenditure on treatment                      54,229/-(ii)    Expenditure on conveyance                     10,000/-\n(iii)   Expenditure on special diet                   10,000/-\n(iv)    Cost of nursing/attendant                     Nil\n(v)     Loss of earning capacity                      Nil\n(vi)    Loss of income                                17,082/-\n(vii) Any other loss which may require any 78,021\n      special treatment or aid to the injured for\n      the rest of his life. Loss of commuted leave\n      and earned leave.\n12.     Non-Pecuniary Loss:MACT no.6225/16                                                         Page 2 of 23Jitender Kumar Vs. Ramesh Bajaj & Anr.(i)     Compensation for mental and physical 5000/-\n        shock\n(ii)    Pain and suffering                          5000/-\n(iii)   Loss of amenities of life                   Nil\n(iv)    Disfiguration                               Nil\n(v)     Loss of marriage prospects                  Nil\n(vi)    Loss of earning, inconvenience, hardships, As above.\n        disappointment, frustration, mental stress,\n        dejectment and unhappiness in future life\n        etc.13.     Disability resulting in loss of earning capacity(i)     Percentage of disability assessed and nature Nil\n        of disability as permanent or temporary(ii)    Loss of amenities or loss of expectation of Nil\n        life span on account of disability(iii)   Percentage of loss of earning capacity in Nil\n        relation of disability(iv)    Loss of future income - (Income X Nil\n        %Earning capacity X Multiplier)14.     TOTAL COMPENSATION                          Rs. 1,79,332/-15.     INTEREST AWARDED                            9% per annum16.     Interest amount up to the date of award     Rs. 88,769/-(179322 x66x9/1200)17.     Total amount including interest             Rs. 2,68,101/- rounded up to\n                                                    Rs. 2,68,200/-18.     Award amount released                       10%      plus     amount        of\n                                                    medical bills19.     Award amount kept in FDRs                   90%20.     Mode of disbursement of the award amount In phased manner\n        to the claimant (s) (Clause29)21.     Next date for compliance of the award.      01.11.2021MACT no.6225/16                                                      Page 3 of 23Jitender Kumar Vs. Ramesh Bajaj & Anr.(Clause 31)\n\n                     FORM - V\n   COMPLIANCE OF THE PROVISIONS OF THE MODIFIED\nCLAIMS TRIBUNAL AGREED PROCEDURE TO BE MENTIONED\n                  IN THE AWARD1. Date of the accident                                       18.06.2014\n    (The present accident pertains to out station)2. Date of intimation of the accident by the investigating   No DAR filed\n    officer to the Claims Tribunal (Clause 2)3. Date of intimation of the accident by the investigating   No intimation\n    officer to the insurance company. (Clause 2)4. Date of filing of Report undersection 173Cr.P.C.         Not known\n    before the Metropolitan Magistrate (Clause 10)5. Date of filing of Detailed Accident Information Report    No DAR filed\n    (DAR) by the investigating Officer before Claims\n    Tribunal (Clause 10)6. Date of Service of DAR on the Insurance Company                N/A\n    (Clause 11)7. Date of service of DAR on the claimant(s). (Clause 11)         -do-8. Whether DAR was complete in all respects? (Clause              -do-16)9. If not, whether deficiencies in the DAR removed later          -do-\n    on?10. Whether the police has verified the documents filed            -do-\n    with DAR? (Clause 4)11. Whether there was any delay or deficiency on the part          -do-\n    of the Investigating Officer? If so, whether any\n    action/direction warranted?12. Date of appointment of the Designated Officer by the       Not known\n    insurance Company. (Clause20)13. Name, address and contact number of the Designated             -do-\n    Officer of the Insurance Company. (Clause 20)MACT no.6225/16                                                  Page 4 of 23Jitender Kumar Vs. Ramesh Bajaj & Anr.14. Whether the designated Officer of the Insurance               No\n    Company submitted his report within 30 days of the\n    DAR? (Clause 20)15. Whether the insurance company admitted the liability?         No\n    If so, whether the Designated Officer of the insurance\n    company fairly computed the compensation in\n    accordance with law. (Clause 23)16. Whether there was any delay or deficiency on the part         Yes\n    of the Designated Officer of the Insurance Company? If\n    so, whether any action/direction warranted?17. Date of response of the claimant (s) to the offer of the      N/A\n    Insurance Company. (Clause 24)18. Date of the Award                                          29.09.202119. Whether the award was passed with the consent of the          No\n    parties? (Clause 22)20. Whether the claimant(s) were directed to open saving          Yes\n    bank account(s) near their place of residence? (Clause18)21. Date of order by which claimant(s) were directed to        02.03.2019\n    open saving bank account (s) near his place of\n    residence and produce PAN Card and Aadhar Card and\n    the direction to the bank not issue any cheque\n    book/debit card to the claimant(s) and make an\n    endorsement to this effect on the passbook(s). (Clause18)22. Date on which the claimant (s) produced the passbook       26.11.2019\n    of their saving bank account near the place of their\n    residence along with the endorsement, PAN Card and\n    Aadhar Card? (Clause 18)23. Permanent Residential Address of the Claimant(s) Barrack no.14,\n    (Clause 27)                                      New      Police\n                                                     Line, Kingsway\n                                                     Camp,       PS\n                                                     Mukherjee\n                                                     Nagar, Delhi.MACT no.6225/16                                                 Page 5 of 23Jitender Kumar Vs. Ramesh Bajaj & Anr.24. Details of saving bank account(s) of the claimant(s) and State Bank of\n    the address of the bank with IFSC Code (Clause 27)       India, Sector-1/2\n                                                             Branch, Rohini,\n                                                             Delhi having no.38932907553.25. Whether the claimant(s) saving bank account(s) is near Yes\n    his place of residence? (Clause 27)26. Whether the claimant(s) were examined at the time of Yes\n    passing of the award.27. Account number, MICR number IFSC Code, name and State Bank of\n    branch of the bank of the Claims Tribunal in which the India,    Rohini\n    award amount is to be deposited/transferred            Courts Complex\n                                                           Branch,   Delhi.MICR       code-\n                                                           110002427. IFSC\n                                                           Code-\n                                                           SBIN0010323.\n  AWARD1.     Vide this order, I shall dispose of the claim petition filed underSection 166&140of the Motor Vehicle's Act by the petitioner seeking compensation from\nthe respondents with respect to the injuries suffered by him in an accident\noccurred on 18.06.2014.2.     Brief facts of the petition are that on 18.06.2014, petitioner was sitting on\nthe pillion seat of the motorcycle no. HR36Q 5474 driven by his friend Manoj\nKumar and were going towards Gurgaon from Rewari and at about 10 pm when\nthey were crossing the Roharai Mode Chowk and almost crossed the 3/4th\nportion of the road then in the meantime a Maruti Van bearing registration no.\nRJ02 UA 1140 driven by its driver i.e. respondent no. 1 in a high speed and in a\nrash and negligent manner came from the right hand side and hit their motorcycleMACT no.6225/16                                                       Page 6 of 23Jitender Kumar Vs. Ramesh Bajaj & Anr.with a great force and as a result, petitioner and his friend Sh. Manoj Kumar fell\ndown and petitioner suffered grievous injuries all over his body and Manoj\nKumar sustained minor injuries and the motorcycle was also got damaged.\nPetitioner and his friend Manoj Kumar were shifted to Rewari Trauma Centre\nand from there, petitioner was referred to PGI Rohtak Hospital and from there he\nwas shifted to Medanta Hospital, Gurgaon, Haryana and discharged on the same\nday after treatment. Petitioner remain admitted in Sunder Lal Jain Hospital from\n23.06.2014 to 28.06.2014. Petitioner remained under treatment till the filing of\nthe petition as his injuries were not healed up properly and he suffered great\nmental pain, shock and agony besides financial loss due to the said accident.\nPetitioner is a constable in Delhi Police and was residing at Barrak No. 14, New\nPolice Line, Kingsway Camp, PS Mukherjee Nagar, Delhi and getting salary of\nRs. 37,822/- per month and he took 10 days commuted leave w.e.f. 24.06.2014\nand 164 days earned leave w.e.f. 04.07.2014. Petitioner has filed the present\npetition claiming compensation of Rs. 30 lacs from the respondents along with\ninterest @ 12% per annum from the date of filing the petition till its realization.\nAn interim award of Rs. 25,000/- has also been claimed.3.     The claim of the petitioner has been contested by both the respondents.\nRespondent no. 1 Ramesh Bajaj being driver as well as owner of the offending\nvehicle and respondent no. 2 The Shri Ram General Insurance Company Limited,\nbeing the insurer of the offending vehicle. Respondent no. 1 in his written\nstatement has inter alia stated that he has been falsely implicated in the present\nmatter and the accident took place solely due to negligence of the petitioner and\nnot due to his negligence and the vehicle was duly insured with the respondent\nno. 2 and responsibility to pay compensation, if any is of respondent no. 2.\nRespondent no. 2 in his written statement has raised the plea that the petition isMACT no.6225/16                                                      Page 7 of 23Jitender Kumar Vs. Ramesh Bajaj & Anr.bad for misjoinder of necessary parties as respondent no. 2 is not a necessary\nparty because the offending vehicle was not insured with respondent no. 2 at the\ntime of accident and the respondent no. 2 is implicated as a party on the basis of\nforged insurance policy as it has not received any premium with respect to the\nsame and so there is no contract of insurance. Respondent no. 2 has also alleged\nthat the petition is not maintainable in Delhi because the accident took place in\nRoharai District Rewari, Haryana.4.     From the pleadings of the parties, the following issues were framed vide\norder dated 16.12.2016: -i)     Whether petitioner suffered injuries in a vehicular accident occurred on\n18.06.2014 at about 10 pm on Roharai Mode Crossing, Rewari, Haryana due\nto rash or negligent driving of Maruti Van No. RJ02 UA 1140 by Ramesh Bajaj\n(respondent no. 1)? OPPii) Whether petitioner is entitled to compensation, if yes, what amount and\nfrom whom of the respondents? OPPiii) Relief?5.     In order to prove his claim petitioner has filed his evidence by way of\naffidavit Ex. PW1/A and reiterated the averments made in the petition and relied\nupon documents Ex. PW1/1 to Ex. PW1/34, mentioned in his affidavit. Petitioner\nhas also examined PW2 HC Dinesh Khatri to prove the service record of the\npetitioner i.e. his pay slip Ex. PW2/1, leaves record of petitioner i.e. Ex. PW2/2\nto Ex. PW2/5 and the medical record Ex. PW2/6, Ex. PW1/22, Ex. PW1/23 and\nEx. PW1/32 and he also proved that the department paid bill amount of Rs.\n79,995/- directly to Sunder Lal Jain Hospital and except this payment, the\ndepartment has not reimbursed any other medical bill of the petitioner. PW3\nSantosh Kumar Upadhayay, Record Clerk from Sunder Lal Jain Hospital wasMACT no.6225/16                                                     Page 8 of 23Jitender Kumar Vs. Ramesh Bajaj & Anr.examined and he proved the treatment record of the petitioner including the final\nbill as Ex. PW3/1.6.     Respondent no. 1 Ramesh Bajaj to rebut the allegations of the petitioner\nexamined himself as R1W1 and tendered his affidavit Ex. R1W1/A in evidence and\nrelied upon the documents Ex. R1W1/1 to R1W1/3 and reiterated the averments\nmade in his written statement.7.     Respondent no. 2 Shri Ram General Insurance Company Ltd. examined, its\nlegal officer Rama Raman as R2W1 and he tendered his evidence by way of\naffidavit Ex. R2W1/A reiterating the averments made in their written statement and\nalso relied upon documents i.e. complaint to police and their postal receipts i.e. Ex.\nR2W1/1 to Ex. R2W1/5 (although objected to on the mode of proof).7.A Court examined as court witness Sh. Gaurav Parashar, Legal Officer of\nrespondent no. 2 / Ins. Co.8.    I have heard Ld. Counsels for both the parties and gone through the record.9.    My finding issues wise are as under:-ISSUE NO. 1.Whether petitioner suffered injuries in a vehicular accident occurred on\n18.06.2014 at about 10 pm on Roharai Mode Crossing, Rewari, Haryana due to\nrash or negligent driving of Maruti Van No. RJ02 UA 1140 by Ramesh Bajaj\n(respondent no. 1)? OPP10.    Onus to prove this issue was upon the petitioner and to prove his case petitioner\nhas examined himself as PW1 and tendered his affidavit in evidence as Ex. PW1/A. In\nhis cross examination, petitioner stated that accident took place when they crossed\nRoharai More and after being hit he fell down on his right side. He further stated that\nthey gave indication by blowing horn at that time of crossing that more (road crossing).\nHe further stated that the speed of offending vehicle at that time of accident was\nabout 70-80 KMPH and             speed   of   their   motorbike   was    about 20- 25\nKMPH.       He    also    stated that police came at spot after 5-7 minutes ofMACT no.6225/16                                                          Page 9 of 23Jitender Kumar Vs. Ramesh Bajaj & Anr.the   accident and took him to hospital.     Petitioner to prove his injuries has\nexamined PW3 Santosh Kumar Upadhayay, Record Clerk from Sunder Lal Jain\nHospital and he proved the treatment record including final bill as Ex. PW3/1.\nFurther respondent no. 1 in his evidence as R1W1 has not denied the accident or\nthe fact that petitioner has suffered injuries as a result of the accident. Also,\nR2W1 Rama Raman, Legal Officer of respondent no. 2 has neither denied that\nthe accident took place nor denied that petitioner sustained injuries in the said\naccident. Petitioner to prove his injuries has relied upon his medical record i.e.\nEx. PW1/1 to Ex. PW1/20 and Ex. PW1/24 to Ex. PW1/31.11.    Considering the contention of respondent no. 1 that respondent no. 1 has\nbeen acquitted in the criminal case and so he is not responsible for rash and\nnegligent driving and hence he cannot be held liable to pay any compensation.\nAlso, petitioner himself as PW1 in his cross-examination has stated that he does\nnot know if respondent no. 1 Ramesh Bajaj has been acquitted in the criminal\ncase registered about the accident in question. This contention of respondent\nno. 1 does not hold good due to the reason that it is a settled law that judgment of\na criminal case is not binding before the Claims Tribunal. Further the acquittal\nof accused in a criminal case is not a ground to exonerate respondent no. 1 with\nrespect to rash and negligent driving as judgment in a criminal case is based on\nthe principle of "beyond reasonable doubt" while the judgment by the Claims\nTribunal is based on the principle of "preponderance of probabilities". Relying\nupon the judgment of Mahila Dhanvanti and Ors Vs. Phulwant Mahendra\nSingh, Miscellaneous Appeal no.239/1992 decided by Hon'ble Madhya\nPradesh High Court on 29.07.1993 in which it is held as under:"The plaintiff can prove the accident but cannot prove how it happened to\nestablish negligence. This hardship is to be avoided by applying the principle ofMACT no.6225/16                                                      Page 10 of 23Jitender Kumar Vs. Ramesh Bajaj & Anr.res ipsa loquitur. The general purport of the words res ipsa loquitur is that the\naccident speaks for itself or tells its own story". Thus, Claims Tribunal while\ndealing with the law of torts in motor accident cases applies the principle of "res\nipsa loquitur". In view of above discussion, it is proved that petitioner suffered\ninjuries on his person due to the said accident on account of rash and negligent\ndriving of the offending vehicle No. RJ02 UA 1140 by the respondent no. 1.\nThis issue is decided in favour of petitioner and against the respondents.ISSUE NO. 2Whether petitioner is entitled to compensation, if so what amount and from\nwhich of the respondents? OPP13.    It is not disputed that petitioner has suffered injuries due to the accident,\ntherefore being injured petitioner is natural eye-witness of the accident and well\nwithin his rights / entitled to claim compensation from respondents.\nNow coming to the question as to which of the respondent is liable to pay a\ncompensation14.    Considering the fact that although respondent no. 1 has relied upon the\ninsurance policy and stated that compensation, if any would be paid by\nrespondent no. 2 / Insurance Co. However, respondent no. 2 / Insurance Co. has\ndenied its liability to pay compensation, if any on the ground that the said policy\nis a fake policy.15.    Considering the contention of respondent no. 2 / Insurance Co. that the\npresent petition is bad for misjoinder of necessary party as respondent no. 2 /\nInsurance Co. is not a necessary party because the offending vehicle bearing\nregistration no. RJ02 UA 1140 was not insured at the time of accident and\nrespondent no. 2 has been implicated on the basis of forged/ fake insurance\npolicy. This contention of respondent no. 2 / Insurance Co. does not hold goodMACT no.6225/16                                                      Page 11 of 23Jitender Kumar Vs. Ramesh Bajaj & Anr.due to the reason that respondent no. 2 / Insurance Co. has made the complaint to\npolice as alleged, if any on 16.06.2017 while the present written statement\nraising the said contention was filed on 08.08.2016. This shows that it is an after\nthought. Further, respondent no. 2 / Insurance Co. has not placed on record any\ndocument to show that the said insurance policy was fake / forged.16.    Considering the contention of respondent no. 2 / Insurance Co. that the\ncause of action does not arose in Delhi as the accident took place at Rohrai\nDistrict Rewari, Haryana and so the present petition is not maintainable here.\nThis contention does not hold good due to the reason that petitioner, being a\nConstable in Delhi police was residing in Barrack no. 14, New Police Line,\nKingsway Camp, PS Mukherjee Nagar, Delhi - 110009 within the jurisdiction of\nPS Mukherjee Nagar at the time of accident and underSection 166(2)of the\nMotor vehicle Act, petition can be made to the Claims Tribunal having\njurisdiction over the area where the accident occurred or within local limits of\nwhose jurisdiction the claimant resides or carries on his business. This fact was\neven proved by PW2 HC Dinesh Khatri as he proved that petitioner was posted\nin 2nd Battalion of DAP on the date of accident i.e. 18.06.2014.17.    Considering the contention of respondent no. 2 / Insurance Co. that as per\nInsurance Regulatory & Development Authority of India, certain details are to be\nprovided to the insurer at the time of renewing insurance policy or changing\ninsurer. Respondent no. 2 / Insurance Co. has alleged that no such information\nwas incorporated in the insurance policy relied upon by respondent no. 1. This\ncontention of respondent no. 2 / Insurance Co. does not hold good due to the\nreason that this contention has not been raised in the entire pleadings by the\nrespondent no. 2 / Insurance Co. Neither the said contention has been raised\nin the evidence of respondent no. 2 / Insurance Co. nor even suggested in theMACT no.6225/16                                                      Page 12 of 23Jitender Kumar Vs. Ramesh Bajaj & Anr.cross-examination of petitioner or respondent no. 1. Since this contention has\nnot been suggested so it is an after thought and it can be of no use to the\nrespondent no. 2 / Insurance Co.18.    Considering the contention of respondent no. 2 / Insurance Co. that\nrespondent no. 1 has not filed any complaint against the agent who issued the\nfake insurance policy and also not filed any complaint against the respondent no.\n2 / Insurance Co. in the District Consumer Form for denying the insurance\ncoverage on account of said policy. This contention of respondent no. 2 does not\nhold good due to the reason that respondent no. 1 is well within his right to file a\ncomplaint or not.       Further, respondent no. 1 has taken the consistent stand\nthroughout the trial that he has taken a valid insurance policy by paying\nRs. 5300/- in cash to the agent Sh. Dharambir of Shubham Insurance. Even, the\nphotograph of the said shop has been placed on record by the respondent no. 1\nRamesh Bajaj.19.    Although, the main contention of respondent no. 2 / Insurance Co. is that\nthe said insurance policy of the offending vehicle is fake and relying upon the\nmaxim "Frans et jus nunguam cohabitant" meaning thereby that fraud and justice\nnever dwell together is applicable in the present case. But, this contention has not\nbeen proved by the respondent no. 2 / Insurance Co. and so this contention does\nnot hold good. Further, petitioner as PW1 in his cross examination stated that he\nremembered the number of offending vehicle on his own. He further stated that\nhe received copy of insurance policy of offending vehicle from police station.\nRespondent no. 1 as R1W1 in his evidence has again reiterated his stand that\noffending vehicle i.e. Maruti Van no. RJ02 UA 1140 was duly insured with\nShriram General Insurance Company Limited vide policy valid from 15.06.2014\nto 15.06.2015 and insurance company had issued the policy which duly bear theMACT no.6225/16                                                      Page 13 of 23Jitender Kumar Vs. Ramesh Bajaj & Anr.signature of agent and stamp of the insurance company and he had paid Rs.\n5300/- to Dharambir R/o Rai Khera working in name and style of Shubham\nInsurance and having shop at Tijara, District Alwar, Rajasthan.        He further\ndeposed that he has got the vehicle insured by authorized agent of respondent no.\n2 / insurance company and respondent no. 2 / Ins. Co. is liable to pay\ncompensation, if any to the petitioner. He relied upon insurance policy Ex.\nR1W1/2. Further the insurance policy Ex. R1W1/2 has not been objected to by\nthe respondent no. 2 on the ground of mode of proof in the evidence of\nrespondent no. 1 as R1W1. This shows that the insurance policy Ex. R1W1/2\nhas been admitted by respondent no. 2 / Ins. Co. on mode of proof. Even,\nrespondent no. 1 in his cross examination has stated that he has paid Rs. 5300/-\nin cash being premium of insurance policy of the car in question to the agent Sh.\nDharambir of Shubham Insurance. In his cross examination, he also stated that\nhe came to know from Lilu Ram about Dharambir that he was an insurance agent\nat Raikhera, Tijara District Alwar. He further stated that he himself has paid the\npremium amount of the insurance policy in cash to Sh. Dharambir. He further\nstated that the said agent has not issued any receipt with respect to the amount\nreceived. He further stated that the said person has given him the insurance\npolicy after two days after receipt of payment.       He further stated that the\ninsurance policy was given to him by said Dharambir himself and was not sent\nby post. He further stated that he has not been able to recollect as to from whom\nthe policy of previous year was obtained. He further sated that he does not know\nthe said Dharambir was a fraudulent person or that he was not authorized to issue\nany policy. This shows that respondent no. 1 has given a consistent stand even in\nhis cross-examination. This fact corroborates the testimony of respondent no. 1.20.    Although respondent no. 2 examined R2W1Mr. Rama Raman, its LegalMACT no.6225/16                                                    Page 14 of 23Jitender Kumar Vs. Ramesh Bajaj & Anr.Officer and he relied upon the documents i.e. complaint made to the police and\npostal receipts R2W1/1 to Ex. R2W1/5. All the said documents were objected to\nwhich shows that the respondent no. 2 / Ins. Co. has not been able to prove even\nits complaint to the police with regard to the said insurance policy. R2W1 Rama\nRaman in his cross examination has stated that he does not know as to on which\ndate the company received the notice of the present case or on which date the\nwritten statement was filed. He further stated that he has not filed any complaint\npersonally. At that stage, complaint Ex. R2W1/1 was shown to him and he\nreplied that it is signed by one Mr. Ravinder, who is member of the fraud\ncontrolling team. He further stated that he does not know as to whether any\nfraud controlling team has ever been constituted by the company or not or\nwhether name of Mr. Ravinder had been put in that team. He does not know as\nto who is the authorized person / officer to constitute that team. He also\nadmitted that the complaint was sent by post and the tracking report of said post\nto the effect that the complaint has actually received by receiver has not been\nfiled.   He further stated that he does not know if apart from sending the\ncomplaint by post, their Insurance Company had pursued the complaint or not\nand if so, with whom and when. He admitted that when the insurance company\ncomes to know that someone is claiming some compensation on account of fake\npolicy, insurance company has to register FIR immediately. He has also admitted\nthat in this matter, no such FIR is being lodged by the company. He also\nadmitted that in this matter, the insurance company has filed written statement\nfirst and thereafter lodged the complaint to SP / SHO concerned. This shows that\nR2W1 Rama Raman has not taken any clear stand. He also proved that\nrespondent no. 2 / Insurance Co. had not taken any steps for registration of FIR\non the said insurance policy.MACT no.6225/16                                                    Page 15 of 23Jitender Kumar Vs. Ramesh Bajaj & Anr.21.    R2W1 Rama Raman in his cross-examination stated that he does not know\nif the insurance company had given its agency to one Mr. Dharambir who is the\nproprietor of M/s Shubham Insurance having its office at Tijara, District Alwar,\nRajasthan. He further stated that he cannot bring the list of their authorized\nagents operating in District Alwar or Tehsil Tijara, Rajasthan. He admitted that\nhe is not aware of the fact that his insurance company had initiated any complaint\nor any query against the person who according to record has issued this fake\npolicy in the name of respondent no. 2. He also stated that he cannot tell if the\ninsurance company had made any efforts with respect to agency given to Mr.\nDharambir in the name of Shubham Agency. He further vol. Stated that the\nconcerned department of insurance company could tell this. He also stated that\nhe has not brought list of agency provided / authorizing for issuing insurance\npolicy in the area of Tijara District Alwar, Rajasthan. He further deposed that\ninsurance company had not submitted any document with respect to issuance or\nnon issuance of the policy on the court file. He denied the suggestion that they\nhave not submitted that list of agents / franchises of Tijara District Alwar,\nRajasthan on the court file just to conceal the truth.       He also denied the\nsuggestion that Dharambir the owner of the Shubham Agency was authorized\nagent of respondent no. 2 and FIR in this case was not lodged intentionally to\nfavour the agent Dharambir.He also denied the suggestion that complaint Ex.\nR2W1/1 filed by Insurance Co. to police is just to avoid the liabilities of\ninsurance company.        The burden of proof underSection 106of the Indian\nEvidence Act 1872 is upon the person who has special knowledge of the said\nfact. In the present matter whether the said insurance policy was fake or not, it\nwas within the special knowledge of the insurance company. Thus, insurance\ncompany is having the burden of proof to prove that the said policy is fake byMACT no.6225/16                                                    Page 16 of 23Jitender Kumar Vs. Ramesh Bajaj & Anr.placing on record the correct particulars of the said policy number or by placing\non record the list of authorized agents operating in the area of Tijara District\nAlwar, Rajasthan. But, respondent no. 2 / Insurance Co. has not discharged his\nburden of proof and not placed on record any document to prove that the said\ninsurance policy is fake. So, respondent no. 2 / Insurance Co. has failed to prove\nhis averments.21.    Even Sh. Gaurav Parashar, Legal Manager of the insurance company /\nrespondent no. 2 was called and examined as court witness. He stated that in\ncases where the insurance company is of the opinion that there is some fraud\ncommitted / being committed or likely to be committed with their company, by\ninsured / claimant then they refer such matter to the concerned team which\ncompletes the inquiry and give the report. He further stated that this matter has\nbeen referred to Fraud Control Unit. He also stated that there is no follow up by\ntheir team so far. This shows that even the court witness Gaurav Parashar from\nthe respondent no. 2 / Insurance Co. has admitted that there is no outcome of\nsuch referral to the Fraud Control Unit of the company. However, respondent no.\n1 Ramesh Bajaj has given consistent stand and his veracity is even tested in his\ncross examination and it has corroborated his credibility as a witness. The above\ndiscussion shows that respondent no. 1 has taken the said insurance policy and so\nrespondent no. 2 / Insurance Co. is liable to indemnify the insured / owner and to\npay compensation to the petitioner.Now coming to the quantum of compensation, as to how much compensation\npetitioner is entitled to22.    Being injured, petitioner is well within his rights to claim compensation.In his\nevidence by way of affidavit Ex. PW1/A, it is deposed by PW1 / petitioner that from\nthe spot of accident, he was taken to Rewari Trauma Centre and where from heMACT no.6225/16                                                         Page 17 of 23Jitender Kumar Vs. Ramesh Bajaj & Anr.was referred to PGI Rohtak Hospital and thereafter on 19.06.2014 he was taken\nto Medanta Hospital, Gurgaon, Haryana and he was discharged on the same day.\nIt is further deposed by PW1 that thereafter on 23.06.2014, the petitioner was\nadmitted in Sunder Lal Jain Hospital, Delhi and discharged on 28.06.2014. PW1\ndeposed that he incurred more than Rs.55,000/- on his medical treatment,\nRs.30,000/- on special diets, Rs.20,000/- on conveyance and Rs.30,000/- on\nattendant charges. However medical bills of Rs.54,229/- have been placed on\nfile. Petitioner examined PW3 Mr. Santosh Kumar Upadhyay, Record Clerk\nfrom Sunder Lal Jain Hospital, Ashok Vihar, Delhi who had brought the\ntreatment record of patient Mr. Jitender Kumar which includes the bill and he\nproved the same as Ex.PW3/1. Hence the said amount of Rs.54,229/- is granted\nto petitioner towards medical expenses. There is no evidence except deposition\nof petitioner to verify that he spent any amount on special diets or conveyance.\nSeeing serious nature of injuries suffered by him, petitioner is granted a sum of\nRs. 10,000/- for special diets and Rs. 10,000/- for conveyance. In absence of any\nevidence, no reason to allow any compensation in name of attendant charges.\nRequest in this regard is declined. The petitioner has claimed compensation\ntowards loss of earning during treatment. He deposed that he was Constable with\nDelhi Police and was getting Rs.37,822/- per month. Petitioner examined PW2\nHC Dinesh Khattri from Second Battalion, DCP Office, Accounts Branch, NPL\nKingsway Camp, Delhi who had brought the summoned record of Ct. Jitender\nKumar who was posted in 2nd Battalion, DAP on the date of accident i.e. 18.06.2014\nand he has proved the pay slip for the month of May and June 2014 as collectively\nEx.PW2/1. He deposed that Ct. Jitender Kumar remained on leave for 10 days\n(commuted leave) from 24.06.2014 to 04.07.2014 and 164 days earned leave\nw.e.f. 04.07.2014 and he proved attested copy of leave record as Ex. PW2/2.MACT no.6225/16                                                    Page 18 of 23Jitender Kumar Vs. Ramesh Bajaj & Anr.He deposed that due to leave taken by petitioner, their department had deducted\nRs.17,082/- from his salary as overpayment and he proved attested copy of\nstatement of salary showing his recovery Ex. PW2/3 and attested copy of\napplication for leave as Ex. PW2/4, attested copies of daily diary regarding\ndeparture, hospitalization, medical rest and joining as Ex. PW2/5. He deposed\nthat Ct. Jitender remained admitted in Sunder Lal Jain Hospital from 23.06.2014\nto 29.06.2014 and their department had directly paid bill amount of Rs.79,995/-\nto Sunder Lal Jain Hospital and except this payment their department had not\nreimbursed any other medical bill to Ct. Jitender Kumar and he proved attested\ncopies of entire medical record containing discharge slip and medical bills as Ex.\nPW2/6. He also proved that documents as Ex. PW1/22, Ex. PW1/23 and Ex.\nPW1/32 were issued by their department. In the cross-examination he deposed\nthat the commuted leaves are medical leaves and the earned leaves are\nencashable at the time of retirement. If a person takes earned leaves continuously\nthen the department deduct certain allowances and the above mentioned\nRs.17,082/- were deducted for certain allowances, over paid to the petitioner\nwhile he remained on earned leave. He further deposed that their department had\nsanctioned 174 days leaves due to the accident of petitioner Sh. Jitender Kumar.\nand he resumed his services on 15.12.2014 after availing above mentioned\nleaves. Accordingly, petitioner is granted a sum of Rs.17,082/- towards loss of\nearning during treatment as the said amount was deducted by his department.Petitioner submitted that he has received full salary from the department during\nthe leave period but he has lost his leaves. Ld. counsel for petitioner has prayed\nfor compensation with respect to leave taken by the petitioner during the\ntreatment. As per record, petitioner has taken commuted leaves for 10 days from\n24.06.2014 to 04.07.2014 and 164 days earned leave w.e.f. 04.07.2014. It is trueMACT no.6225/16                                                    Page 19 of 23Jitender Kumar Vs. Ramesh Bajaj & Anr.that medical leave used to lapse if not taken by employee, but if this accident\nwould not have happened, the medical leave would have been used at some other\nrelevant time and therefore, the petitioner is granted leave encashment for 169\ndays. Therefore, amount of Rs 78,021/- (11050 (basic) + 2800 (grade pay) =\n13850 / 30 = 461.66 x 169) awarded to the petitioner towards commuted leaves\nand earned leaves.23.     Apart from amounts mentioned above, petitioner is allowed Rs.5000/- for\npain and suffering and Rs. 5000/- for mental & physical shock due to this\naccident, making a total of Rs.1,79,332/-, detail of which is given as under:-(i)     Medical Expenses                            Rs.     54,229/-\n(ii)    Special diets                               Rs.     10,000/-\n(iii)   Conveyance                                  Rs.     10,000/-\n(iv)    Loss of earning during treatment            Rs.     17,082/-\n(v)     Loss of commuted and earned leave           Rs.     78021/-\n(vi)    Pain & suffering                            Rs.     5000/-\n(vii)   Mental & physical shock                     Rs.     5000/-\n                                       Total        Rs.     1,79,332/-This issue is accordingly decided in favour of the petitioner and against\nrespondents by holding that petitioner is entitled for compensation from\nrespondent no.2 / Ins. Co.ISSUE No.3 (RELIEF)24.     Petition in hands is allowed. Respondent no.2 is directed to pay Rs.\n2,68,200/- which includes 66 months interest @ 9% per annum to the petitioner\nas compensation in this case, within 30 days from today, failing which it,\nrespondent no. 2 would be liable to pay further interest @ 9% p.a from the date\nof award on the amount of Rs. 1,79,332/- till realization of amount.MACT no.6225/16                                                     Page 20 of 23Jitender Kumar Vs. Ramesh Bajaj & Anr.DISBURSEMENT25.    Statement of petitioner about disbursement of amount of compensation\nwas recorded. Further petitioner has got his bank account opened in terms of\nmodified direction of Hon'ble High Court and filed photocopy of his bank\npassbook of such account. Considering circumstances of petitioner, it is directed\nthat out of the total amount of compensation, 90% amount, except amount\nawarded towards medical expenses, be kept in FDRs to be released to the\npetitioner in a phased manner i.e. Rs. 10,000/- monthly directly crediting in his\nsaving bank account and remaining 10% amount along with amount awarded\ntowards medical expenses be released to him through his saving bank account,\nparticulars of which are mentioned in the above proforma, this amount will be\nwithdrawn only by way of withdrawal slip and by no other mode or digital mode\ni.e. Debit card / Credit card /ATM/NEFT/RTGS/letter etc.26.    The salient features as prescribed in the judgment inRajesh Tyagi & Ors.\nVs. Jaibir Singh & Ors. FAO842/2003 Date of Decision: 8 th January, 2021\nare to be applied: -(a) The Bank shall not permit any joint name(s) to be added in the\n       savings bank account or fixed deposit accounts of the claimant(s) i.e.\n       the savings bank account(s) of the claimant(s) shall be an individual\n       savings bank account(s) and not a joint account(s).(b) The original fixed deposit shall be retained by the bank in safe\n       custody. However, the statement containing FDR number, FDR\n       amount, date of maturity and maturity amount shall be furnished by\n       bank to the claimant(s).(c) The monthly interest be credited by Electronic Clearing System\n       (ECS) in the savings bank account of the claimant(s) near the place ofMACT no.6225/16                                                    Page 21 of 23Jitender Kumar Vs. Ramesh Bajaj & Anr.their residence.(d) The maturity amounts of the FDR(s) be credited by Electronic\n       Clearing System (ECS) in the savings bank account of the claimant(s)\n       near the place of their residence.(e) No loan, advance, withdrawal or pre-mature discharge be allowed\n       on the fixed deposits without permission of the Court.(f) The concerned bank shall not issue any cheque book and/or debit\n       card to claimant(s). However, in case the debit card and/or cheque\n       book have already been issued, bank shall cancel the same before the\n       disbursement of the award amount. The bank shall debit card(s) freeze\n       the account of the claimant(s) so that no debit card be issued in\n       respect of the account of the claimant(s) from any other branch of the\n       bank.(g) The bank shall make an endorsement on the passbook of the\n       claimant(s) to the effect that no cheque book and/or debit card have\n       been issued and shall not be issued without the permission of the\n       Court and claimant(s) shall produce the passbook with the necessary\n       endorsement before the Court on the next date fixed for compliance.(h) It is clarified that the endorsement made by the bank along with the\n       duly signed and stamped by the bank official on the passbook(s) of the\n       claimant(s) is sufficient compliance of clause above.27.    Respondent no. 2 is directed to deposit amount of compensation, as stated\nabove, with this tribunal within 30 days, with advance notice to petitioner.\nRespondent no. 2 is further directed that if any amount is required to be\ndeducted towards TDS, it would furnish details of amount and TDS\ncertificate as well.MACT no.6225/16                                                    Page 22 of 23Jitender Kumar Vs. Ramesh Bajaj & Anr.Notice be also sent to the In-charge, Computer Branch (North) to\nsend a copy of this judgment to Nodal Officer of SBI on his Email ID i.e.Digitally signed[email protected].                            EKTA         by EKTAGAUBA MANNFile be consigned to record room.       GAUBA        Date:2021.09.29\n                                               MANN         18:31:07 +0530\n\nAnnounced in the open court                    (EKTA GAUBA MANN)\non 29.09.2021                                    PO, MACT-1 (North)\n                                                  Rohini Courts, DelhiMACT no.6225/16                                                Page 23 of 23Jitender Kumar Vs. Ramesh Bajaj & Anr.