Delhi District Court
Shri Vinod Prasad vs Shri Sunil Kumar on 23 January, 2016
IN THE COURT OF MS. GEETANJLI GOEL, PO: MOTOR ACCIDENT
CLAIMS TRIBUNAL2, PATIALA HOUSE COURTS, NEW DELHI
Suit No.133/15
Date of Institution: 14.10.2015
IN THE MATTER OF:
1. Shri Vinod Prasad
S/o Shri Narayan Shah
2. Smt. Mamta Devi
W/o Shri Vinod Prasad
Both residents of:
H.No.B64, Naraina Industrial Area
PhaseII, Loha Mandi
Naraina, New Delhi. ...Petitioners
Versus
1. Shri Sunil Kumar
S/o Shri Bijender Singh
R/o: VPO Fatehpuri
Distt. Rewari123401
Haryana.
2. Shri Dinesh Kumar
S/o Shri Mangtu Ram
R/o H.No.127, Near Govt. School
Khatiwas (96)
Nangal Sirohi
Mahender Garh 123001.
Suit No. 133/15 Page no. 1 of 24
Vinod Prasad Vs Sunil Kumar & Ors.
3. The Oriental Insurance Co. Ltd.
DO (Code 215391) 288/7
Munjal Tower
Old Railway Road
Gurgaon122001
Haryana. ...Respondents
Final Arguments heard : 23.12.2015 Award reserved for : 23.01.2016 Date of Award : 23.01.2016 AWARD
1. Vide this judgmentcumaward, I proceed to decide the petition filed u/s 166 and 140 of Motor Vehicle Act, 1988, as amended uptodate (hereinafter referred to as the Act) for grant of compensation in a road accident.
2. It is the case of the petitioners that on 30.03.2015 at about 11.00 hrs the deceased namely Sumit Kumar S/o Shri Vinod Prasad, aged about 4 years was going along with his mother on foot and the deceased was going on proper way and correct side of the road and as per manner. When the deceased reached near Bentex Company Naraina Phase II, Loha Mandi, New Delhi, the deceased crossed the road along with his mother, all of a sudden one vehicle bearing No.HR38R7362 came in high speed without giving any indicator and without blowing any horn which was driven by the respondent No.1 in rash and negligent manner and hit the deceased with great force. Due to the forceful impact the deceased fell down on the road and the offending vehicle carried him for some distance and the deceased received fatal injuries.
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The deceased was removed to Janki Hospital from where he was shifted to RML Hospital, New Delhi, where he died and post mortem was conducted by the doctors of the concerned hospital. It is contended that the accident occurred due to rash and negligent driving of the respondent No.1 who was driving the offending vehicle and due to his act an innocent child became the victim of the same. It is stated that in respect of the accident FIR No.170/15 under sections 279/304A IPC was registered at PS Naraina. It is averred that Rs.50,000/ were spent on last rites and other expenses of the deceased.
3. It is submitted that due to the accident the deceased who was 4 years old child/ boy died a sudden and unnatural death and due to the untimely death of the deceased, the petitioner and his family received great shock and they lost their child for always. Due to the sudden death of the deceased, the petitioners had lost enjoyment and the child would have become a great income support for the petitioners in future and become a great support in the old age of the petitioners, if he lived. But due to the accident he died in a minor age and left his parents in great mental pain and agony and all the hopes and expectations were shattered due to the sudden and untimely death of the deceased/ loving child. It is stated that at the time of death, the deceased was a very minor child aged about 4 years and was having good health, and if he had not died in the accident, then he would have lived up to 90 years of age as there was history of longevity of life in the family of the deceased. It is averred that due to the sudden death of the deceased, the petitioners suffered from Suit No. 133/15 Page no. 3 of 24 Vinod Prasad Vs Sunil Kumar & Ors.
mental pain and agony, loss of shelter, loss of dependency, loss of love and affection, loss of present and future prospects and earning, loss of income (in future), loss of works, loss of enjoyment, loss of social activities, loss of general or specific damages, etc. It is submitted that at the time of the accident and at the time of death the deceased was studying in 7th class and he was a genius and due to the accident the petitioners had lost one of the sources of income. It is stated that at the time of the accident the respondent No.1 was driving the offending vehicle and the respondent No.2 is the owner of the offending vehicle under whose control and supervision the respondent No.1 was driving the offending vehicle in rash and negligent manner and in contravention of rules of traffic and without caring for public life and respondent No.3 is the insurance company of the offending vehicle, therefore all the respondents are liable to pay the compensation amount to the petitioners jointly or severally, as per rules. It is prayed that a sum of Rs. 50,00,000/ be awarded as compensation in favour of the petitioners and against the respondents.
4. Written statement was filed on behalf of the respondents No.1 and 2 taking the preliminary objections that there was no cause of action against the respondents No.1 and 2 because the alleged accident had occurred due to the own negligence of the petitioner/ mother of the deceased minor Sumit Kumar. The respondent No.1 was driving his vehicle after duly obeying traffic rules and regulations and with care of public safety on road. It is alleged that the police Suit No. 133/15 Page no. 4 of 24 Vinod Prasad Vs Sunil Kumar & Ors.
in connivance with the petitioners had made a false case against the respondent No.1/ driver of the car No.HR38R7362 only to extract money from the respondents No.1 and 2. It is stated that the respondent No.1/driver has a valid and effective DL issued from the registration authority RTA, Rewari, Haryana, No.HR47 license no. 4720060206288 valid upto 24.07.2017 and he is authorized to drive motorcycle and LMV NT Car, LMV Transport, throughout India. The averments made in the claim petition were denied. It is submitted that the local police had registered a false case against the respondent No.1 who was driving his vehicle in a proper manner and in accordance with the traffic rules. It is further submitted that there was no negligence of the respondent No.1 in the accident. It is averred that on the date of the accident the vehicle No.HR38R7362 was comprehensively insured with respondent No.3/ insurance company. It is alleged that the amount claimed by the petitioners is highly excessive and exaggerated under all circumstances and the amount of award of compensation, if any, including the interim amount would be payable by the respondent No.3/ insurance company. It is submitted that the respondent No.1 was driving his vehicle at a very slow pace and taking due care about the traffic rules and regulations, as the road was very crowded and full of traffic and it was the respondent No.1 who himself shifted the injured first to Janaki Hospital and later to RML Hospital where he was declared dead. It is submitted that the respondent No.1 was driving his vehicle after following the traffic rules and regulations and having due care and regard for the fellow vehicles and other commuters.
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5. Initially Detailed Accident Report was filed by the IO on 26.8.2015 and thereafter the claim petition was filed on 14.10.2015. Vide order dated 4.11.2015 the matter was listed for evidence on the question of negligence and quantum of compensation.
6. On behalf of the petitioners, the petitioner No.1 Shri Vinod Prasad appeared in the witness box as PW1 and led his evidence by way of affidavit which is Ex.PW1/A reiterating the averments made in the claim petition. He stated that due to the death of his son, he and his other family members were left alone and he had no child. PM Report is Ex.PW1/1, copy of ID proof of petitioner No.1 is Ex.PW1/2, copy of ID proof of petitioner No.2 is Ex.PW1/3, copy of Aadhar card of petitioner No.1 is Ex.PW1/4 and DAR is Ex.PW1/5. He was not crossexamined on behalf of the insurance company. PE was closed on 2.12.2015.
7. I have heard the Learned Counsel for the petitioners as well as the Learned Counsels for the respondents and perused the record. Written submissions were also filed on behalf of the insurance company which I have perused. The petitioner No.1 was also examined on 2.12.2015 and the petitioner No.2 on 23.12.2015 in terms of the judgment of the Hon'ble High Court on 11.1.2013 in MACA No.792/2006 titled Oriental Insurance Co. Ltd. v. Ranjit Pandey and Ors.
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8. My findings on the specific issues are as under:
Question of negligence
9. As the petition has been filed U/s 166 M.V Act it was incumbent upon the petitioners to prove that the deceased sustained injuries in an accident caused due to the rash and negligent driving by the driver of the offending vehicle. To determine the negligence of the driver of the offending vehicle it has been held in National Insurance Company Ltd. vs Pushpa Rana & Another 2009 Accident Claims Journal 287 as follows:
"The last contention of the appellant insurance company is that the respondents/claimants should have proved negligence on the part of the driver and in this regard the counsel has placed reliance on the judgment of the Hon'ble Apex Court in Oriental Insurance Company Ltd. V. Meena Variyal (supra). On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced: (i) certified copy of the criminal record of criminal case in FIR No.955 of 2004, pertaining to involvement of offending vehicle (ii) criminal record showing completion of investigation of police and issue of charge sheet under sections 279/304A, Indian Penal Code against the driver;
(iii) certified copy of FIR, wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of deceased.
These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under the Motor Vehicle Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Hence, this contention of the counsel for the appellant Suit No. 133/15 Page no. 7 of 24 Vinod Prasad Vs Sunil Kumar & Ors.
also falls face down. There is ample evidence on record to prove negligence on part of the driver."
It is established law that in a claim petition under Motor Vehicle Act, the standard of proof to establish rash and negligent driving by the driver of the offending vehicle is not at par with the criminal case where such rashness and negligence is required to be proved beyond all shadow of reasonable doubt. In Kaushnamma Begum and others v. New India Assurance Company Limited, it was inter alia held by the Hon'ble Supreme Court that the issue of wrongful act or omission on the part of the driver of the motor vehicle involved in the accident has been left to a secondary importance and mere use or involvement of motor vehicle in causing bodily injury or death to a human being or damage to property would make the petition maintainable under Sections 166 and 140 of the Motor Vehicle Act.
10. The case of the petitioners is that on 30.03.2015 at about 11.00 hrs the deceased namely Sumit Kumar S/o Shri Vinod Prasad, aged about 4 years was going along with his mother on foot and the deceased was going on proper way and correct side of the road and as per manner. When the deceased reached near Bentex Company Naraina Phase II, Loha Mandi, New Delhi, the deceased crossed the road along with his mother, all of a sudden one vehicle bearing No.HR38R7362 came in high speed without giving any indicator and without blowing any horn which was driven by the respondent No.1 in rash and negligent manner and hit the deceased with great force. Due Suit No. 133/15 Page no. 8 of 24 Vinod Prasad Vs Sunil Kumar & Ors.
to the forceful impact the deceased fell down on the road and the offending vehicle carried him for some distance and the deceased received fatal injuries. The deceased was removed to Janki Hospital from where he was shifted to RML Hospital, New Delhi, where he died and post mortem was conducted by the doctors of the concerned hospital. It was contended that the accident occurred due to rash and negligent driving of the respondent No.1 who was driving the offending vehicle and due to his act an innocent child became the victim of the same. It was stated that in respect of the accident FIR No.170/15 under sections 279/304A IPC was registered at PS Naraina. In paras 3 and 4 of his affidavit Ex.PW1/A the petitioner No.1 had reiterated the mode and manner of the accident as stated in the claim petition.
11. The IO had filed Detailed Accident Report containing the criminal record consisting of copy of charge sheet; copy of tehrir, copy of FIR; copy of site plan; copy of DD; copy of MLC and post mortem report, copy of arrest memo, copy of seizure memos; copy of mechanical inspection report of the offending vehicle, copy of verification report of the RC of the offending vehicle with the copy of the RC, copy of the insurance policy of the offending vehicle and its verification report and verification report of DL of the respondent No.1 with a copy of the DL, copy of permit with its verification report, copy of fitness certificate with the report that it was valid only till 12.3.2015, copy of identification statement of the dead body, copy of order on application for release of the offending vehicle on superdari along with copy of the indemnity Suit No. 133/15 Page no. 9 of 24 Vinod Prasad Vs Sunil Kumar & Ors.
bond, copies of photographs, copy of kalandra under sections 56/192 MV Act and copies of documents in respect of the petitioners. As per the FIR No. 170/15 under sections 279/304A IPC, PS Naraina the case was registered on the basis of complaint of SI Dinesh Kumar (on DD). As per the charge sheet the respondent No.1 has been charge sheeted for the offence under sections 279/304A IPC.
12. The respondents No.1 and 2 had filed the written statement averring that the alleged accident had occurred due to the own negligence of the petitioner/ mother of the deceased minor Sumit Kumar. The respondent No.1 was driving his vehicle after duly obeying traffic rules and regulations and with care of public safety on road. It was alleged that the police in connivance with the petitioners had made a false case against the respondent No.1/ driver of the car No.HR38R7362 only to extract money from the respondents No.1 and
2. It was submitted that the local police had registered a false case against the respondent No.1 who was driving his vehicle in a proper manner and in accordance with the traffic rules. It was further submitted that there was no negligence of the respondent No.1 in the accident. It was submitted that the respondent No.1 was driving his vehicle at a very slow pace and taking due care about the traffic rules and regulations, as the road was very crowded and full of traffic and it was the respondent No.1 who himself shifted the injured first to Janaki Hospital and later to RML Hospital where he was declared dead. It is submitted that the respondent No.1 was driving his vehicle having due care Suit No. 133/15 Page no. 10 of 24 Vinod Prasad Vs Sunil Kumar & Ors.
and regard for the fellow vehicles and other commuters.
13. During crossexamination by the learned counsel for the respondents No.1 and 2 PW1 stated that he was not present at the spot of the accident. Hence, he did not know about the exact occurrence of the accident. He stated that at the time of the accident his wife and his deceased son were crossing the road. He stated that his wife and his deceased son were shifted to the hospital by the driver of the offending vehicle. He denied the suggestion that his wife and his deceased son were negligent at the time of the accident or that the accident had not occurred by the vehicle bearing No.HR38R7362 driven by Sunil Kumar. Thus PW1 stated that he was not present at the spot of the accident and he did not know about the exact occurrence of the accident. It is pertinent that the petitioner No.2 was with the deceased at the time of the accident but she has not been produced in the witness box to depose about the manner of the accident. PW1 stated that at the time of the accident his wife and his deceased son were crossing the road and a perusal of the site plan also shows that the accident had taken place on the road. It is true that the petitioner No.2 and the deceased were not crossing the road at any spot meant for crossing the road and there was neither any zebra crossing, nor any red light, nor any subway for crossing the road from where the deceased was crossing the road. However it cannot be lost sight of that the deceased was a minor child of four years and no negligence can be attributed to him though the mother of the deceased may have been negligent. At the same time, a Suit No. 133/15 Page no. 11 of 24 Vinod Prasad Vs Sunil Kumar & Ors.
duty was cast on the respondent No.1 to exercise due care and caution.
14. It would be argued on behalf of the respondents that PW1 was not an eye witness to the accident and the petitioners had not produced any evidence to prove the negligence of the respondent No.1 and as such they had failed to establish the negligence of the respondent No.1. However the respondents No. 1 and 2 who are the driver and owner of the offending vehicle have also not adduced any evidence to dispute the version put forth by the petitioners or in the criminal record. The criminal record has been placed on record which shows that the respondent No.1 has been charge sheeted for the offence under Sections 279/304A IPC. In Basant Kaur and others v. Chattar Pal Singh and others 2003 ACJ 369 MP (DB) it was observed that registration of criminal case against the driver of the offending vehicle was enough to record a finding that the driver of the offending vehicle was responsible for causing the accident. The respondents have also not led any evidence to prove any other version of the accident. There is no evidence from the respondents to disprove the particulars of the accident or the involvement of vehicle No.HR38RT7362. In view of the testimony of PW1 and the documents on record which have remained unrebutted, the negligence of the respondent No. 1 has been prima facie proved.
15. It was stated that due to the forceful impact the deceased fell down on the road and the offending vehicle carried him for some distance and the Suit No. 133/15 Page no. 12 of 24 Vinod Prasad Vs Sunil Kumar & Ors.
deceased received fatal injuries. The deceased was removed to Janki Hospital from where he was shifted to RML Hospital, New Delhi, where he died and post mortem was conducted by the doctors of the concerned hospital The post mortem report is on record as per which the death was due to head injury (cranio cerebral injury) followed by RTA. Thus it stands established that the deceased had sustained injuries in the alleged accident. The issue of negligence is accordingly decided in favour of the petitioners and against the respondents.
Quantum of compensation
16. Since the issue of negligence has been decided in favour of the petitioners they would be entitled to compensation as per the provisions of the Act. The petitioner No.1 is the father of the deceased and the petitioner No.2 is the mother of the deceased. It is the case of the petitioners that the deceased was 4 years old at the time of the accident and it was so stated in the claim petition and PW1 had also deposed to that effect. As per the post mortem report the deceased was 4 years old. As such the age of the deceased is taken as 4 years. In the case of a child, though the child is not working, it has been held that loss of dependency is awarded for future or prospective loss.
17. Since the deceased was a child of 4 years it is very difficult to ascertain his potential at that early stage. One cannot measure on golden scales the Suit No. 133/15 Page no. 13 of 24 Vinod Prasad Vs Sunil Kumar & Ors.
value of opportunities one would have availed and at the same time could not have availed. The subject matter has to be guided by surrounding circumstances. In R.K. Malik and Anr. V. Kiran Pal and Ors. AIR 2009 SC 2506, the Hon'ble Supreme Court has observed as under:
"15. The real problem that arises in the cases of death of children is that they are not earning at the time of accident. In most of the cases they were still studying and not working. However, under no stretch of imagination it can be said that the parents, who are appellants herein, have not suffered any pecuniary loss. In fact, loss of dependency by its very nature is awarded for prospective or future loss. In this context Lord Atkinson aptly observed in Taff Vale Rly. Col. v. Jenkins (191113) All England Reporter 160 as follows:
"In the case of death of an infant, there may have been no actual pecuniary benefit derived by its parents during the child's lifetime. But this will not necessarily bar the parent's claim and prospective loss will found a valid claim provided that the parents establish that they had a reasonable expectation of pecuniary benefit if the child had lived."
16.Then, how does one calculate the pecuniary compensation for loss of future earnings and loss of dependency of the parents, grandparents etc. in the case of nonworking student? Under the Second Schedule of the Act in the case of a nonearning person, his income is notionally estimated at Rs.15,000/ per annum. The Second Schedule is applicable to claim petitions filed under Section 163A of the Act. The Second Schedule provides for the multiplier to be applied in cases where the age of the victim was Suit No. 133/15 Page no. 14 of 24 Vinod Prasad Vs Sunil Kumar & Ors.
less than 15 years and between 15 years but not exceeding 20 years. Even when compensation is payable under Section 166 read with 168 of the Act, deviation from the structured formula as provided in the Second Schedule is not ordinarily permissible, except in exceptional cases." (See Abati Bezbaruah v. Dy. Director General Geological Survey of India (2003) 3 SCC 148; United India Insurance Company Ltd. v. Patricia Jean Mahajan (2002) 6 SCC 281 and UP State Road Transport Corp. v. Trilok Chandra (1996) 4 SCC 362).
It was thus held that though the child may not be earning at the time of the accident but under no stretch of imagination it can be said that the parents have not suffered any pecuniary loss and loss of dependency by its very nature is awarded for prospective or future loss. In this case the notional income of the deceased who was a student and nonearning person was taken as Rs.15,000/ per annum and as per the Second Schedule of the Motor Vehicle Act, 1988 the multiplier of 15 was to be applied in case the victim was upto 15 years. In Kishan Gopal & Anr. v. Lala & Ors. (2014) 1 SCC 244 the Hon'ble Supreme Court, in case of a 10 year old boy took the notional income as Rs.30,000/. In the present case the deceased was a child of 4 years and the same principles would apply. Thus the loss of dependency comes to Rs. 30,000/ X 15 = Rs.4,50,000/.
18. As regards the payment of nonpecuniary compensation to the petitioners who are the parents of the deceased on account of loss of human life, loss of company, happiness, loss of expectation of life, loss of love and Suit No. 133/15 Page no. 15 of 24 Vinod Prasad Vs Sunil Kumar & Ors.
affection, it has been held in R.K. Malik's case (supra) as under:
"24. It is extremely difficult to quantify the nonpecuniary compensation as it is to a great extent based upon the sentiments and emotions. But, the same could not be a ground for nonpayment of any amount whatsoever by stating that it is difficult to quantify and pinpoint the exact amount payable with mathematical accuracy. Human life cannot be measured only in terms of loss of earning or monetary losses alone. There are emotional attachments involved and loss of a child can have a devastating effect on the family which can be easily visualized and understood. Perhaps, the only mechanism known to law in this kind of situation is to compensate a person who has suffered nonpecuniary loss or damage as a consequence of the wrong done to him by way of damages/ monetary compensation. Undoubtedly, when a victim of a wrong suffers injuries he is entitled to compensation including compensation for the prospective life, pain and suffering, happiness etc., which is sometimes described as compensation paid for "loss of expectation of life." This head of compensation need not be restricted to a case where the injured person himself initiates action but is equally admissible if his dependent brings about the action.
25.That being the position, the crucial problem arises with regard to the quantification of such compensation. The injury inflicted by deprivation of the life of a child is extremely difficult to quantify. In view of the uncertainties and contingencies of human life, what would be an appropriate figure, an adequate solatium is difficult to specify. The Courts have therefore used the expression "standard compensation" and "conventional amount/ sum" to get over the difficulty that arises in quantifying a figure as the same ensures consistency and uniformity in awarding compensations."
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Thus the Hon'ble Supreme Court was pleased to uphold the increase of amount of Rs.75,000/ compensation on account of nonpecuniary damages due to the death of a child. Further as regards the future prospects it was held in R.K. Malik's case (supra) as under:
"31. A forceful submission has been made by the learned counsel appearing for the claimantsappellants that both the Tribunal as well as the High Court failed to consider the claims of the appellants with regard to the future prospects of the children. It has been submitted that the evidence with regard to the same has been ignored by the Courts below. On perusal of the evidence on record, we find merit in such submission that the Courts below have overlooked that aspect of the matter while granting compensation. It is well settled legal principle that in addition to awarding compensation for pecuniary losses, compensation must also be granted with regard to the future prospects of the children. It is incumbent upon the Courts to consider the said aspect while awarding compensation. Reliance in this regard may be placed on the decisions rendered by this Court in General Manager, Kerala S.R.T.C. v. Susamma Thomas (1994) 2 SCC 176; Sarla Dixit v. Balwant Yadav (1996) 3 SCC 179; and Lata Wadhwa case (supra)."
Thus the Hon'ble Supreme Court held that denying compensation towards future prospects seems to be unjustified and Rs.75,000/ were granted as compensation for future prospects of the child. However the Hon'ble Supreme Court in Kishan Gopal's case (supra) awarded an amount of Rs.50,000/ towards loss of love and affection, funeral expenses and last rites i.e. the conventional heads and the total amount of compensation awarded was Rs.
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5,00,000/. Thus the petitioners are entitled to compensation of Rs.5,00,000/ in total.
RELIEF
19. The petitioners are awarded a sum of Rs.5,00,000/ (Rs.Five Lacs only) along with interest @ 9% per annum from the date of filing of the DAR till its realization including, interim award, if any already passed against the respondents and in favour of the petitioners. The petitioner No.1 Shri Vinod Prasad would be entitled to 20% share in the awarded amount and the petitioner No.2 Smt. Mamta Devi would be entitled to 80% share in the awarded amount. The respondent No.3 is directed to deposit the award amount directly in the bank account of the claimants in UCO Bank, Patiala House Court, New Delhi within 30 days of the passing of the award failing which it is liable to pay interest at the rate of 12% per annum for the period of delay.
20. For safeguarding the compensation amount from being frittered away by the claimants, directions have been given by Hon'ble Supreme Court for preserving the award amount in the case of Jai Prakash Vs. National Insurance Co. Ltd. and Others (2010) 2 Supreme Court Cases 607. In view of the directions contained in the above judgment the award amount is to be disbursed as follows:
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a) The entire share of the petitioner No.1 be released to him by transferring it into his savings account in UCO Bank, Patiala House Court, New Delhi. 20% of the share of the petitioner no. 2 be released to her by transferring it into her savings account and the remaining amount be kept in FDRs in UCO Bank, Patiala House Court, New Delhi in the following manner:
1. Fixed deposit in respect of 20% for a period of one year.
2. Fixed deposit in respect of 20% for a period of two years.
3. Fixed deposit in respect of 20% for a period of three years.
4. Fixed deposit in respect of 20% for a period of four years.
b)The respondent No.3 is directed to deposit the amount directly by way of crossed cheque in terms of the above order in UCO Bank, Patiala House Court, New Delhi in the name of UCO Bank, Patiala House Court, New Delhi A/c Shri Vinod Prasad and Smt. Mamta Devi within 30 days of the passing of the award.
c) Cheque be deposited within thirty days herefrom under intimation to the petitioners. In case of default, the respondent No.3 shall be liable to pay further interest @ 12% per annum for the period of delay.
d) On the deposit of the award amount, the Branch Manager of UCO Bank, Patiala House Court, New Delhi is directed to prepare Fixed Deposit Receipts Suit No. 133/15 Page no. 19 of 24 Vinod Prasad Vs Sunil Kumar & Ors.
as ordered above and the balance amount be released to the petitioners.
e) The interest on the fixed deposits shall be paid monthly by automatic credit of interest in the saving accounts of the petitioner No.2.
f) The withdrawal from the aforesaid account shall be permitted to the petitioner No.2 after due verification and the bank shall issue photo identity card to the petitioner No.2 to facilitate her identity.
g) No cheque book shall be issued to the petitioner No.2 without the permission of the court.
h) The original fixed deposit receipts shall be retained by the bank in safe custody. However, the original pass book shall be given to the petitioner No.2 along with the photocopy of the fixed deposit receipts. Upon the expiry of period of FDR the bank shall automatically credit the maturity amount in the saving account of the beneficiary.
i) The original fixed deposit receipts shall be handed over to the petitioner No.2 on the expiry of the period of the fixed deposit receipts.
j) No loan, advance, or withdrawal shall be allowed on the said FDRs without the permission of the court.
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k) On the request of the petitioners, the bank shall transfer the saving account to any other branch/bank, according to the convenience of the petitioners.
l) The petitioners shall furnish all the relevant documents for opening of the saving bank account and Fixed Deposit to Senior Manager of UCO Bank, Patiala House Court, New Delhi.
21. The petitioners shall file two sets of photographs along with their specimen signatures, out of which one set to be sent to the Nodal Officer, UCO Bank, Patiala House Court, New Delhi along with copy of the award by Nazir and the second set be retained to the court for further reference. The photographs be stamped and sent to the bank. The petitioners shall also file the proof of residence and furnish the details of the bank account with the Nazir within a week. The petitioners shall file their complete address as well as address of their counsel for sending the notice of deposit of the award amount. APPORTIONMENT OF LIABILITY:
22. The respondent No.1 is the driver, the respondent No.2 is the owner of the offending vehicle and the respondent No.3 is the insurer in respect of the offending vehicle. It is the case of the respondent No.3 that as per DAR and charge sheet filed by the IO in the case, the offending vehicle was being driven without a valid fitness certificate at the time of the alleged accident and charge Suit No. 133/15 Page no. 21 of 24 Vinod Prasad Vs Sunil Kumar & Ors.
sheet/ kalandra u/s 56/192 of M. V. Act was also filed against the owner of the offending vehicle. Hence, the insurance company had no liability for any compensation towards the claimants as per the terms and conditions of the policy in question and there was a clear cut breach of terms and conditions of the policy in question by the owner of the vehicle and as such the insurance company had no liability towards the same. A perusal of the record shows copy of fitness certificate was placed on record but as per the report of verification, the same was valid only till 12.3.2015 whereas the accident had taken place on 30.3.2015. Further a kalandra under sections 56/192 MV Act was also placed on record in that respect. However that is not one of the defences which is available to the insurance company under Section 149 of the Act and the insurance company has not led any evidence in that regard. In P.T. Moidu v. The Oriental Insurance Co. Ltd. AIR 2008 Ker 43 it was held that merely because the driver of the vehicle who was duly licensed was not having a badge would not enable the insurance company to shirk its liability as per Section 149 of the Act and the insurance company also failed to prove that the insured had committed a fundamental breach of the policy conditions resulting in the accident. Similar would be the position in respect of the fitness certificate.
23. The respondents No.1, 2 and 3 are thus held jointly and severally liable. Being the insurer, the respondent No.3 would be liable to pay the compensation on behalf of the respondents No.1 and 2. The respondent No.3 Suit No. 133/15 Page no. 22 of 24 Vinod Prasad Vs Sunil Kumar & Ors.
being the insurer is directed to deposit the award amount in the bank account of the claimants in UCO Bank, Patiala House Court, New Delhi within 30 days of the passing of the award with interest at the rate of 9% p.a. from the date of filing of the DAR till its realization failing which it is liable to pay interest at the rate of 12% per annum for the period of delay.
24. Nazir to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself. The petitioners shall file their complete address as well as address of her counsel for sending the notice of deposit of the award amount. The insurer shall deposit the award amount along with interest upto the date of notice of deposit to the claimants with a copy to their counsel and the compliance report shall be filed in the court along with proof of deposit of award amount, the notice of deposit and the calculation of interest on 22.4.2016.
An attested copy of the award be given to the parties (free of cost) and a copy be also sent to the Nodal Officer, UCO Bank, Patiala House Court, New Delhi. Copy be also sent to the concerned court and to the Learned Secretary, New Delhi District Legal Services Authority.
Suit No. 133/15 Page no. 23 of 24
Vinod Prasad Vs Sunil Kumar & Ors.
File be consigned to record room.
Announced in open court
on this 23rd day of January, 2016 (GEETANJLI GOEL)
PO: MACT2
New Delhi
Suit No. 133/15 Page no. 24 of 24
Vinod Prasad Vs Sunil Kumar & Ors.