Delhi District Court
Smt. Hukmi Bai vs Sh. Sonu on 17 March, 2018
MACP No. 4694/16 (Old No. 183/12) FIR No. 122/12.; PS Alipur DOD: 17.03.2018
IN THE COURT OF SH. VIDYA PRAKASH, PRESIDING OFFICER,
MOTOR ACCIDENT CLAIMS TRIBUNAL, ROHINI COURTS, DELHI
MAC Petition No. 4694/16 (Old MAC Petition No. 122/12)
1. Smt. Hukmi Bai,
Widow of Late Sh Joginder Singh
(Died on 30.07.14 and her name was deleted from the array of parties
vide order dt.02.09.14).
2. Ms. Surjeet Kaur
D/o Late Sh. Joginder Singh
( Married daughter of deceased)
3. Ms. Manjeet Kaur
D/o Late Sh. Joginder Singh
(Married daughter of deceased)
4. Ms. Soma
D/o Late Sh. Joginder Singh
( Married daughter of deceased)
5. Ms. Reshma
D/o Late Sh. Joginder Singh
( Daughter of deceased)
6. Sh. Mangal Singh
S/o Late Sh Joginder Singh
(Son of deceased)
All R/o H.No. 23, Village Jhangola No. 2,
Delhi36.
................Petitioners
VERSUS
1. Sh. Sonu
S/o Sh. Joginder Singh
R/o Village Maupur Baupur,
PS Pali Mukimpur,
Distt. Aligarh, U.P. (Driver)
Smt. Hukmi Bai & Ors. Vs. Sonu & Ors. Page 1 of 18
MACP No. 4694/16 (Old No. 183/12) FIR No. 122/12.; PS Alipur DOD: 17.03.2018
2. Sh. Anand Prakash
S/o Sh. Kehar Singh
R/o Village and Post Office Nangal Kalan,
Distt. Sonipat, Haryana (Owner )
3. Reliance General Insurance Company Ltd.
City Center, G.T Road, Sonipat, Haryana, (Insurer)
...............Respondents
Date of Institution : 31.05.2012 Date of Arguments : 05.03.2018 Date of Decision : 17.03.2018
APPEARANCES: Ms. Meena Gupta Adv for petitioners.
Respondents no. 1 & 2 are exparte.
Sh. Sujit Jaiswal, Adv for respondent no.3.
Petition under Section 166 & 140 of M.V. Act, 1988 for grant of compensation AWARD
1. The petitioners have filed the present claim petition U/s 166/140 M.V Act seeking compensation to the tune of Rs. 50,00,000/ alongwith interest @ 10% p.a. against the respondents for the fatal injuries sustained by Joginder Singh in Motor Vehicular Accident which occurred on 13.04.2012 at 12.45 pm at Bakhtawarpur near Subhash Chowk Delhi within the jurisdiction of PS Alipur.
2. It is averred in the claim petition that deceased Joginder Singh was aged 53 years old; he was working as Assistant (MZ25730) with MTNL and was getting salary of Rs. 15,973/ per month at the time of accident. It is further averred that on the aforesaid date, time and place, when Joginder Singh was going to petrol pump for getting petrol for his motorcycle bearing no. DL8SAZ4738 and reached at Bhaktawar Pur near Subhash Chowk, Delhi, in the meantime, one vehicle i.e. Truck bearing registration no.
Smt. Hukmi Bai & Ors. Vs. Sonu & Ors. Page 2 of 18MACP No. 4694/16 (Old No. 183/12) FIR No. 122/12.; PS Alipur DOD: 17.03.2018 HR69A3253 (alleged offending vehicle) which was being driven by respondent no. 1 at very high speed and in rash and negligent manner and without blowing any horn and in contravention of traffic rules, came from opposite direction and hit against the motorcycle of Joginder Singh. As a result thereof, deceased fell down on the road alongwith his motorcycle and sustained fatal injuries. FIR No. 122/12 U/s 279/304A IPC was registered at PS Alipur with regard to the said accident. He was removed to SRHC Hospital Narela, where he was declared brought dead. Postmortem was got conducted on the body of deceased at BJRM Hospital on 14.04.12. It is further averred that the accident occurred solely due to rash and negligent driving of Truck bearing registration no. HR69A3253 by respondent no. 1. It is claimed that the alleged offending vehicle was owned by respondent no. 2 and it was insured with Reliance General Insurance Co Ltd/respondent no. 3 during the period in question.
3. It may be noted here that Detailed Accident Report (DAR) was also filed by the police corresponding to the investigation carried out in case FIR No. 122/12 (supra) on 31.05.12. DAR was merged with the claim petition, vide order dated 31.05.12 passed by my Ld Predecessor.
4. The respondents no. 1 & 2 i.e. driver and registered owner have filed their joint WS, wherein they have denied the factum of accident as well as the factum of involvement of truck no. HR69A3263 in the accident in question. They have claimed that accident was not caused due to rash or negligence on the part of respondent no. 1/driver and the petitioners have concocted a false and fabricated story in order to extort money from them. Alternatively, they have claimed that the alleged offending vehicle was insured with respondent no. 3 during the period in question and respondent no. 1 was having valid DL at the time of accident. On merits, they have simply denied the averments made in the claim petition and have reiterated that respondent no.1 has been falsely implicated in the criminal case by the Smt. Hukmi Bai & Ors. Vs. Sonu & Ors. Page 3 of 18 MACP No. 4694/16 (Old No. 183/12) FIR No. 122/12.; PS Alipur DOD: 17.03.2018 petitioners in order to extort money from him. Based on these averments, they have prayed for dismissal of the claim petition.
5. Respondent no. 3/insurance company has filed its reply taking statutory defence as provided in Section 149(2) M.V Act. It has claimed that since accident took place on 13.04.12 and cover note in respect of alleged offending vehicle was issued from 13.03.12 to 12.03.12, necessary details were being verified from concerned Branch Office of the insurance company. It has also claimed that the alleged offending vehicle was being driven without Permit and therefore, it is not liable to pay any compensation amount in this case. On merits, the averments made in the claim petition have been simply denied for want of knowledge.
6. From pleadings of the parties, the following issues were framed by Ld Predecessor vide order dt. 12.09.2012:
1) Whether Joginder Singh S/o Late Sh.
Laxman Singh injuries due to road accident on 13.04.2012 at about 12.45 pm at Bakhtawar Pur near Subhash Chowk, Delhi within the jurisdiction of PS Alipur due to rash and negligence driving of vehicle i.e. Truck bearing No. HR69A3253 being driven by driver/respondent no. 1?OPP
2) Whether the Lr of the deceased are entitled to compensation, if so, to what an extent and from which of the respondents?
OPP
3) Relief.
7. In support of their claim, the petitioners have examined five witnesses i.e. PW1 Smt. Hukmi Bai (widow of deceased), PW2 Sh. Surender Pal Singh (employee of MTNL), PW3 Sh. Kuldeep Singh (alleged eye witness), PW4 Sh Praveen Kapoor (employee of MTNL) and PW5 Sh Bharat Lal (employee of MTNL). They closed their evidence through their counsel Smt. Hukmi Bai & Ors. Vs. Sonu & Ors. Page 4 of 18 MACP No. 4694/16 (Old No. 183/12) FIR No. 122/12.; PS Alipur DOD: 17.03.2018 on 24.04.2017. On the other hand, the respondents preferred not to lead any evidence despite grant of sufficient opportunities and ultimately, their evidence was closed vide order dt. 26.04.2014.
8. It is pertinent to note here that during pendency of the matter, the petitioner no.1 namely Smt. Hukmi Bai (widow of deceased) expired on 30.07.14. Copy of her Death Certificate was filed on record and her name was deleted from the array of parties vide order dt. 02.09.14.
9. I have already heard the arguments advanced by Ld counsels for the parties. I have also gone through the material available on record. My findings on the issues are as under: Issue No. 1
10. For the purpose of this issue, the testimony of PW3 Sh. Kuldeep Singh is relevant. He is stated to be an eye witness of the accident in question. He deposed that on 13.04.2012 between 12.00 to 1.00 pm, he was doing repair work of one bike. Deceased Joginder Singh was coming from Alipur and was going towards Jangola on his motorcycle and his bike was stationary. All of a sudden, one truck no. HR69A3235 came from Alipur side and hit against deceased Joginder Singh. He further deposed that initially, front wheel of said truck ran over Joginder Singh followed by its rear wheel and body of deceased was cut off into three pieces. He further deposed that driver of truck had stopped the truck but then fled away from the spot after leaving the truck at the spot. During his cross examination on behalf of insurance co, he deposed that deceased Joginder Singh was known to him prior to the accident as he was his paternal uncle (Fufa Ji). He was working on mechanic shop at the time of accident and the said shop was situated on the road where accident had taken place. In response to Court question, he replied that he was repairing the bike and the traffic coming from front side, was clearly visible to him. He further deposed that police had reached the spot within five minutes as PCR Van remains Smt. Hukmi Bai & Ors. Vs. Sonu & Ors. Page 5 of 18 MACP No. 4694/16 (Old No. 183/12) FIR No. 122/12.; PS Alipur DOD: 17.03.2018 stationed at Subhash Chowk situated near the place of accident. He alongwith two of his friends had removed pieces of dead body to SRHC Hospital, Narela in one tempo, wherefrom dead body was referred to BJRM Hospital, Jahangir Puri. He denied the suggestion that he was not an eye witness of the accident or that he was deposing falsely in order to help petitioner no. 1 to claim compensation, being related to her. The respondents no. 1 & 2, being already exparte, did not cross examine this witness.
11. It is quite evident from the aforesaid discussion that the respondents have not been able to impeach the testimony of PW3 Sh. Kuldeep Singh despite the fact that he was cross examined at length. The ocular testimony of this witness cannot be brushed aside merely because he is related to the deceased. This is more so when no evidence whatsoever has been led in rebuttal from the side of respondents to disprove the case of petitioners. Moreover, it is nowhere the case of either of the respondents that PW3 had any previous animosity with respondents no. 1 & 2 or had any reason to depose falsely in this case. Thus, there is no reason as to why the testimony of this witness should not be believed.
12. It is also pertinent to note that the respondent no.1/driver was the other material witness to throw light by testifying as to how and under what circumstances, the accident had taken place. However, he preferred not to enter into witness box during the course of inquiry. Thus, an adverse inference is liable to be drawn against him to the effect that the accident in question occurred due to rash and negligent driving of vehicle i.e. Truck No. HR69A3235 by him.
13. Moreover, it is an undisputed fact that FIR no. 122/12 (supra) was registered at PS Alipur with regard to accident in question. Copy of said FIR as also the copy of charge sheet arising out of said FIR (which are part of DAR Ex PW1/5 to Ex. PW1/13 ), would show that FIR was registered on Smt. Hukmi Bai & Ors. Vs. Sonu & Ors. Page 6 of 18 MACP No. 4694/16 (Old No. 183/12) FIR No. 122/12.; PS Alipur DOD: 17.03.2018 13.04.12 i.e. on the date of accident itself. Thus, FIR is shown to have been registered promptly and without any delay. Hence, there is no possibility of false implication of respondent no. 1 and/or false involvement of Truck No. HR69A3235 at the instance of petitioners herein. Not only this, the respondent no. 1 namely Sonu S/o Sh Joginder Singh (accused in State case) has been charge sheeted for offences punishable U/s 279/304A IPC by the investigating agency after arriving at the conclusion on the basis of investigation carried out by it that the accident in question had occurred due to rash and negligent driving of offending truck no. HR69A3235 by him. Same would also point out towards rash and negligent driving of said vehicle by respondent no. 1.
14. Not only this, copy of MLC of Joginder Singh (which is part of DAR Ex PW1/5 to Ex. PW1/13 ) prepared at SRHC Hospital, Narela would show that he had been removed to said hospital by police official on 13.04.12 at 2.00 pm with alleged history of RTA and he was declared brought dead. Further, copy of PM Report prepared at Mortuary of BJRM Hospital (which is part of DAR Ex PW1/5 to Ex. PW1/13 ), would show that cause of his death is opined due to shock as a result of crush injury. All the injuries were ante mortem, fresh in duration and could be caused by run over by an heavy vehicle. The injuries as noted in the column of external injuries therein, would show that those injuries are consistent with the injuries which are sustained in Road Traffic Accident. Said documents have not been disputed from the side of respondents and corroborate the ocular testimony of PW3 as discussed above.
15. Copy of mechanical inspection report dated 13.04.12 (which is part of DAR Ex PW1/5 to Ex. PW1/13) of offending Truck no. HR69A3253, would show fresh damage i.e. its front bumper bended from its left side and its front left side body was found slightly dented. Similarly, copy of Mechanical Inspection report dt. 13.04.12 (which is part of DAR Ex PW1/5 to Smt. Hukmi Bai & Ors. Vs. Sonu & Ors. Page 7 of 18 MACP No. 4694/16 (Old No. 183/12) FIR No. 122/12.; PS Alipur DOD: 17.03.2018 Ex. PW1/13 ) of motorcycle no. DL8SAZ4738 of victim, would show fresh damage i.e. its right side body and head light visor was found scratched, its right rear indicator light was found damaged, its rear side body handle was found damaged and its gear liver was found bended. Said documents have not been disputed by either of the respondents and corroborate the ocular testimony of PW3 to the aforesaid extent. Furthermore, the aforesaid vehicles are shown to have been seized by the police from the place of accident itself on 13.04.12 i.e. on the date of accident itself, as per copy of their respective seizure memos (which is part of DAR Ex PW1/5 to Ex. PW1/13 ). Same would show that the accident was caused by this vehicle only.
16. In view of the aforesaid discussion and the evidence which has come on record, it is held that the petitioners have been able to prove on the basis of preponderance of probabilities that Joginder Singh had sustained fatal injuries in road accident which took place on 13.04.2012 at 12.45 pm at Bhaktawar Pur near Subhash Chowk, Delhi within the jurisdiction of PS Alipur due to rash and negligent driving of offending vehicle i.e. Truck bearing registration no. HR69A3253 by respondent no. 1. Thus, issue no. 1 is decided in favour of petitioners and against the respondents.
ISSUE NO. 217. Section 168 of the Act enjoins the Claims Tribunal to hold an inquiry into the claim to make an award determining the amount of compensation which appears to it to be just and reasonable. It has to be borne in mind that the compensation is not expected to be a windfall or a bonanza nor it should be niggardly.
LOSS OF DEPENDENCY
18. As already stated above, the claimants are the widow (now expired), four daughters and one son of deceased. PW1 Smt. Hukmi Bai Smt. Hukmi Bai & Ors. Vs. Sonu & Ors. Page 8 of 18 MACP No. 4694/16 (Old No. 183/12) FIR No. 122/12.; PS Alipur DOD: 17.03.2018 (widow of deceased) has deposed in her evidence by way of affidavit (Ex. PW1/A) that deceased was aged 56 years; he was working as Work Assistant with MTNL and was getting salary of Rs. 15,973/ per month at the time of accident. She further deposed that all the petitioners were totally dependent upon the deceased. She has relied upon the following documents: Sr. No. Description of documents Remarks 1. Copy of Ration Card Ex PW1/1 2. Copy of I.D Card of Ex PW1/2 deceased issued by MTNL
3. Copy of last pay slip of Ex. PW1/3 deceased
4. Copy of Election I Card Ex. PW1/4 (colly) of deceased and Medical I Card of family issued by MTNL
5. DAR Ex. PW1/5 to Ex.
PW1/13 (colly).
19. During her cross examination made on behalf of insurance co, she admitted that pay slip filed by her on record, is of September 2010. In response to the Court question, she deposed that deceased was transferred to Rohini Segment about one year prior to the accident and did not receive any pay during said period. She further deposed that her two daughters namely Ms. Surjeet Kaur and Ms. Manjeet Kaur were married prior to the date of accident and remaining three children namely Ms. Somi, Ms Reshma and Master Mangal Singh were studying at that time.
20. PW2 Sh. Surender Pal Singh is the Dealing Assistant from the office of Pay & Allowance, MTNL. He deposed that Jogender Singh S/o Sh Laxman Singh was regular employee of MTNL from 01.11.198 till date of his Smt. Hukmi Bai & Ors. Vs. Sonu & Ors. Page 9 of 18 MACP No. 4694/16 (Old No. 183/12) FIR No. 122/12.; PS Alipur DOD: 17.03.2018 death. However, the testimony of this witness could not be completed on 17.09.13, whereafter he did not enter into witness box. Hence, the testimony of this witness cannot be read in evidence.
21. PW4 Sh Parveen Kapoor is the Accounts Officer (Pay & Accounts) MTNL and he produced service record consisting of Attendance Register, Absentee Statement of deceased for the year 2009 and 2010 and pay slips and salary register of deceased from 2007 to 2011. The said record was collectively exhibited as Ex. PW4/1 (colly) (running into 41 pages). During his cross examination, he deposed that salary was lastly paid to deceased Jogender Singh in September 2010 and he had lastly attended his duty on 22.07.10. He further deposed that Jogender Singh was not removed from the services till the date of his death. He denied the suggestion that he had mad false statement that deceased was in employment of MTNL as on 13.04.12 in order to help the petitioners.
22. PW5 Sh. Bharat Lal is Sub Divisional Engineer from the office of MTNL. He deposed that deceased Jogender Singh S/o Sh Laxman Singh was working as Work Assistant with MTNL till his death and as per records available with MTNL, no disciplinary action was initiated against deceased for absence from duty till his death. He further deposed that department had not paid any salary to deceased after September 2010 since he remained absent from his duty from said period till his death. He produced the service record of deceased and proved attested copies of relevant pages of Service Book of deceased as Ex. PW5/1 (colly). (running into 37 pages). During his cross examination, he deposed that as per Service Rules governing employees of MTNL, department initiates discipline action against its employee who continuously remains absent from duty without intimation for about 23 months but no such disciplinary action was initiated against deceased for considerable period as the relevant record pertaining to him, was not traceable due to bifurcation of Material Management (MM) field in Smt. Hukmi Bai & Ors. Vs. Sonu & Ors. Page 10 of 18 MACP No. 4694/16 (Old No. 183/12) FIR No. 122/12.; PS Alipur DOD: 17.03.2018 the department.
23. During the course of arguments, counsel for petitioners vehemently argued, while placing reliance upon the testimonies of PW4 and PW5 and the relevant service record including Attendance Register and Salary Register of deceased brought on record, that the last drawn monthly salary of deceased was Rs. 15,973/ and same should be taken in order to calculate loss of dependency. She further argued that since deceased was permanent employee of MTNL, future prospects @ 15% should also be awarded to the petitioners.
24. Per contra, counsel for insurance company vehemently argued that deceased lastly attended his duty on 22.07.10 as deposed by PW4 and salary was lastly paid to him in September 2010, whereas the accident in question took place on 13.04.12. He further argued that there is no evidence to show that deceased was earning anything at the time of accident and thus, his monthly income at the most should be taken as per Minimum Wages Act applicable during the period in question.
25. After considering the respectful submissions made on behalf of both the sides in the light of material available on record, I find substance in the contentions of counsel for petitioners for the reason that PW4 and PW5, both of whom are from the office of employer of deceased i.e. MTNL, have been categorical in their respective depositions that deceased was an employee of MTNL till date of his death and neither his services were terminated nor any disciplinary action had been initiated against deceased till the date of his death. No doubt, it has been proved on record that deceased was not attending his duty after July 2010 till the date of accident but this fact alone is not sufficient to deprive the petitioners from taking benefit of the last drawn salary of deceased from MTNL. Hence, I am of the considered opinion that the last drawn salary of deceased, which is Rs. 15,973/ { as per pay slip (which is part of Ex. PW4/1 colly) for the month of September 2010} Smt. Hukmi Bai & Ors. Vs. Sonu & Ors. Page 11 of 18 MACP No. 4694/16 (Old No. 183/12) FIR No. 122/12.; PS Alipur DOD: 17.03.2018 need to be considered in order to calculate the amount of compensation under this head.
26. In the claim petition, the age of deceased is mentioned as 56 years at the time of accident. PW1 Smt. Hukmi Bai, who is widow of deceased, reiterated during her cross examination that age of deceased was 56 years at the time of accident. This fact has not been controverted from the side of respondents throughout the inquiry. Moreover, date of birth of deceased is mentioned as 07.12.1959 in copy of his pay slip ( which is part of Ex. PW4/1 colly). Not only this, the same date of birth is mentioned in the service record ( Ex. PW5/1 colly) of deceased. Accordingly, the age of deceased comes out somewhere between 5253 years at the time of accident ( the date of accident being 13.04.2012). Hence, the multiplier of 11 would be applicable in view of recent pronouncement made by Constitutional Bench of Apex Court in the case titled as "National Insurance Company Ltd. Vs. Pranay Sethi & Ors.", passed in SLP(Civil) No. 25590/14 decided on 31.10.17.
27. Considering the fact that there were six dependents on deceased at the time of accident, there has to be deduction of one fourth as held in the case of Pranay Sethi mentioned supra. There has to be addition of 15% towards element of future prospects in the monthly income of deceased( he being aged between 50 60 years at the time of accident & his job being permanent), in view of recent pronouncement made by Constitutional Bench of Apex Court in the case titled as "National Insurance Company Ltd. Vs. Pranay Sethi & Ors.", mentioned supra as well as in view of recent decision of Hon'ble Delhi High Court in appeal bearing MAC APP No. 798/2011 titled as "Bajaj Allianz General Insurance Company Ltd. Vs. Pooja & Ors", decided on 02.11.17. Thus, the total of loss of dependency would come out to Rs. 18,18,526/ (Rs. 15,973/ X 3/4 X 115/100 X 12 X 11). Hence, a sum of Rs. 18,18,526/ is awarded under this Smt. Hukmi Bai & Ors. Vs. Sonu & Ors. Page 12 of 18 MACP No. 4694/16 (Old No. 183/12) FIR No. 122/12.; PS Alipur DOD: 17.03.2018 head in favour of the petitioners.
LOSS OF LOVE & AFFECTION
28. After the celebrated judgment of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors.", mentioned supra, Hon'ble Delhi High Court in appeal titled as "Bajaj Allianz General Insurance Company Ltd. Vs. Pooja & Ors", mentioned supra, has been pleased to observe in para 18 of the judgment that the constitution bench decision in Pranay Sethi (supra) does not recognize any other nonpecuniary head of damages. Hence, no amount of compensation is being awarded under this head.
LOSS OF ESTATE & FUNERAL EXPENSES
29. In view of the facts and circumstances of the present case and in view of decision of Hon'ble Apex Court in the case of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors." mentioned supra, a sum of Rs. 15,000/ each is awarded in favour of petitioners on account of loss of estate and funeral expenses.
The total compensation is assessed as under:
1. Loss of dependency Rs. 18,18,526/
2. Loss of Estate & Funeral Rs. 30,000/ Expenses Total Rs. 18,48,526/ Rounded Off Rs. 18,49,000/
30. Now, the question which arises for determination is as to which of the respondents is liable to pay the compensation amount. Ld counsel for insurance company vehemently argued that there is violation of terms and conditions of insurance policy on the part of insured, inasmuch as the insured has failed to produce any valid permit in respect of offending vehicle as on the date of accident. Thus, insurance company is entitled to recovery Smt. Hukmi Bai & Ors. Vs. Sonu & Ors. Page 13 of 18 MACP No. 4694/16 (Old No. 183/12) FIR No. 122/12.; PS Alipur DOD: 17.03.2018 rights from respondents no. 1 and 2. In support of this contention, he relied upon the DAR.
31. I have considered the aforesaid submission made on behalf of insurance company in the light of material available on record. As already noted above, the insurance company failed to lead any evidence despite grant of sufficient opportunities. In other words, no evidence whatsoever has been led by insurance company during the course of inquiry and there is no iota of evidence on record to show that there was no valid permit in respect of offending vehicle for State of Delhi as on the date of accident. Even other wise, IO has filed copy of kalandara U/s 56/192 M/V Act alongwith copy of charge sheet filed before the Court of Ld MM in State case arising out of FIR No. 122/12 (supra). The perusal of said kalandara would show that it recites that owner of truck no. HR69A3253 had produced copies of RC, insurance and permit of said vehicle to him but he could not produce Fitness Certificate in respect of said vehicle. Not only this, IO has also filed report issued by RTA, Sonipat (Haryana) in respect of offending vehicle, which provides that the said vehicle was having valid National Permit bearing Number 341/NP/2010 having validity from 19.03.11 to 18.03.12 and having route permit valid upto 18.03.15. Moreover, the copy of Form No. 47 which is receipt regarding deposit of amount for issuance of National Permit regarding offending vehicle, has been filed on record by the respondents. Same would show that requisite fee for issuance of permit for State of Rajasthan, U.T of Chandigarh and for State of Delhi had been deposited by way of bank drafts dt. 18.03.10 and 19.03.10 and it was valid from 19.03.10 to 18.03.15. In view of these documents coupled with the fact that no definite or cogent evidence has been led by insurance company to establish that there was no valid permit in respect of offending vehicle as on the date of accident, it is hereby held that the insurance co has failed to prove this statutory defence even on the basis of pre ponderence of probabilities and Smt. Hukmi Bai & Ors. Vs. Sonu & Ors. Page 14 of 18 MACP No. 4694/16 (Old No. 183/12) FIR No. 122/12.; PS Alipur DOD: 17.03.2018 consequently, it is not entitled to recovery rights against the insured. As a necessary corollary thereof, the insurance co is liable to pay the compensation amount as determined herein above since it is liable to indemnify insured under the law. Issue no. 2 is decided accordingly.
ISSUE NO. 3 RELIEF
32. In view of my finding on issues no. 1 & 2, I award a sum of Rs. 18,49,000/ (including interim award amount if any) alongwith interest @ 9% per annum w.e.f date of filing the petition i.e. 31.05.2012 till the date of its realization, in favour of Lrs of deceased/petitioners and against the respondents jointly and severally (Reliance placed on judgment "Oriental Insurance Company Ltd. Vs. Sangeeta Devi & Ors" bearing MAC. APP. 165/2011 decided on 22.02.2016).
APPORTIONMENT
33. Statements of legal heirs of deceased in terms of Clause 26 MCTAP were recorded on 07.11.2017. Having regard to the facts and circumstances of the case and in view of their statements, it is hereby ordered that petitioners no. 2 to 4 shall be entitled to share amount of Rs. 2,50,000/ (Rs Two Lacs Fifty Thousand Only) each alongwith proportionate interest, petitioner no. 5 shall be entitled to share amount of Rs. 6,00,000/ (Rs. Six Lacs Only) alongwith proportionate interest and petitioner no. 6 shall be entitled to share amount of Rs.4,99,000/ (Rs. Four Lacs Ninety Nine Thousand Only) alongwith proportionate interest.
34. Out of the share amount of petitioner no.2, a sum of Rs. 25,000/ (Rs. Twenty Five Thousand Only) is directed to be immediately released to her through her Saving Bank Account No. 33903788693 with SBI, Neemka, Distt. Meerut, Mawana having IFSC Code No. SBIN0006600 and remaining share amount is directed to be kept in the form of FDRs in the multiples of Rs. 10,000/ each one month, two months, Smt. Hukmi Bai & Ors. Vs. Sonu & Ors. Page 15 of 18 MACP No. 4694/16 (Old No. 183/12) FIR No. 122/12.; PS Alipur DOD: 17.03.2018 three months and so on and so forth, having cumulative interest.
35. Out of the share amount of petitioner no. 3, a sum of Rs. 25,000/ (Rs Twenty Five Thousand Only) is directed to be immediately released to her through her Saving Bank Account No. 0821001700164307 with PNB Parikshit Garh, Distt Meerut having IFSC Code No. PUNB0082100 and remaining share amount is directed to be kept in the form of FDRs in the multiples of Rs. 10,000/ each for one month, two months, three months and so on and so forth, having cumulative interest.
36. Out of the share amount of petitioner no. 4, a sum of Rs. 25,000/ (Rs. Twenty Five Thousand Only) is directed to be immediately released to her through her Saving Bank Account No. 81560100060041 with Sarva Haryana Gramin Bank Village Ruwan, Distt. Fatehabad having IFSC Code No. PUNB0HGB001 and remaining share amount is directed to be kept in the form of FDRs in the multiples of Rs.10,000/ each for one month, two months, three months and so on and so forth, having cumulative interest.
37. Out of the share amount of petitioner no. 5, a sum of Rs. 60,000/ (Rs. Sixty Thousand Only) is directed to be immediately released to her through her Saving Bank Account No. 35055511864 with SBI with Bus Stand road, Abohar near Sandeep Cinema having IFSC Code No. SBIN0011890 and remaining share amount is directed to be kept in the form of FDRs in the multiples of Rs. 10,000/ each for one month, two months, three months and so on and so forth, having cumulative interest.
38. Out of the share amount of petitioner no. 6, a sum of Rs. 50,000/ (Rs. Fifty Thousand Only) is directed to be immediately released to him through his Saving Bank Account No. 7544000100045310 with PNB Bakhtawar Pur, Delhi having IFSC Code No. PUNB0754400 and Smt. Hukmi Bai & Ors. Vs. Sonu & Ors. Page 16 of 18 MACP No. 4694/16 (Old No. 183/12) FIR No. 122/12.; PS Alipur DOD: 17.03.2018 remaining share amount is directed to be kept in the form of FDRs in the multiples of Rs. 10,000/ each for one month, two months, three months and so on and so forth, having cumulative interest.
39. All the FDRs to be prepared as per aforesaid directions, shall be subject to the following conditions:
(i) Original fixed deposit receipts be retained by the bank in safe custody. However, a passbook of the FDRs alongwith photocopies of the FDRs be given to claimants/petitioners. At the time of maturity, the fixed deposit amount shall be automatically credited in the savings bank accounts of the Claimants/petitioners.
(ii) The maturity amount(s) of the FDR(s) shall be credited to the savings bank account of the claimant(s) in a nationalized bank near the place of their residence.
(iii) No cheque book/Debit Card be issued to the claimant(s) in respect of the savings bank accounts in which the award amount is to be sent/credited, without permission of the Court. However, in case the debit card and/or cheque book have already been issued, the bank shall cancel the same before the disbursement of the award amount.
(iv) No loan, advance or withdrawal be allowed on the fixed deposit(s) without permission of the Court.
(v) The Bank shall not permit any joint name(s) to be added in the savings bank accounts or fixed deposit accounts of the victims.
(vi) Half yearly statement of account be filed by the Bank before the Tribunal.
40. Respondent no. 3, being insurer of the offending vehicle, is directed to deposit the award amount with SBI, Rohini Courts branch within 30 days as per above order, failing which insurance company shall be liable to pay interest @ 12% p.a for the period of delay. Concerned Manager, SBI, Rohini Court Branch is directed to transfer the respective award amount directed to be released immediately to petitioners in their aforesaid saving bank accounts mentioned supra, on completing necessary formalities as per rules. He be further directed to keep the said amount in fixed deposit in its own name till the claimants approach the bank for disbursement so that the award amount starts earning interest from the date of clearance of the Smt. Hukmi Bai & Ors. Vs. Sonu & Ors. Page 17 of 18 MACP No. 4694/16 (Old No. 183/12) FIR No. 122/12.; PS Alipur DOD: 17.03.2018 cheques. During the course of hearing of final arguments, all the claimants submitted that they are entitled to exemption from deduction of TDS as their annual income do not exceed from the taxable limit prescribed under the law. Although, they were directed to furnish Form No. 15G on record but they have failed to submit the same till date. The claimants are directed to provide Form No. 15G of Income Tax Act directly to counsel for insurance company within one week from date of this Award, against proper receipt and copies thereof be placed on record. Copy of the award be given dasti to the petitioners and also to counsel for the insurance company for compliance. Copy of this award alongwith one photograph each, specimen signatures, copies of bank passbooks and copies of residence proof of the petitioners, be sent to Nodal Officer of SBI, Rohini Court, Branch, Delhi for information and necessary compliance. Form V in terms of MCTAP is annexed herewith as AnnexureA. Copy of order be also sent to concerned M.M and DLSA as per clause 31 and 32 of MCTAP.
Announced in open Court on 17.03.2018 (VIDYA PRAKASH) Judge MACT2 (North) Rohini Courts, Delhi Smt. Hukmi Bai & Ors. Vs. Sonu & Ors. Page 18 of 18 MACP No. 4694/16 (Old No. 183/12) FIR No. 122/12.; PS Alipur DOD: 17.03.2018 Smt. Hukmi Bai & Ors. Vs. Sonu & Ors. Page 19 of 18