Delhi District Court
Smt. Swade vs Monu & Ors. Page 1 Of 25 on 14 April, 2023
MACP No. 532/18; FIR No. 383/18 DOD:15.04.2023
IN THE COURT OF SHRI VINOD YADAV, PRESIDING OFFICER,
MOTOR ACCIDENT CLAIMS TRIBUNAL, NORTH,
ROHINI COURTS, DELHI
MAC Petition No. 532/18
UID/CNR No. DLNT010077102018
1. Smt. Swade,
W/o Late Sh. Riyasat,
(Widow of deceased)
2. Firashat Ali,
S/o Late Sh. Riyasat,
(Son of deceased)
3. Zarar Ahmad,
S/o Late Sh. Riyasat,
(Son of deceased)
4. Israr,
S/o Late Sh. Riyasat,
(Son of deceased)
5. Farjana,
D/o Late Sh. Rajesh,
(Daughter of deceased)
6. Nadeem,
S/o Late Sh. Riyasat,
(Son of deceased)
All R/o. Village Birampur,
Garh Bridge Halt,
District Hapur, UP.
..........Petitioners
Smt. Swade & Ors. Vs. Monu & Ors. Page 1 of 25
MACP No. 532/18; FIR No. 383/18 DOD:15.04.2023
VERSUS
1. Sh. Monu,
S/o Sh. Vijay Kumar
R/o H.No. 752, Jatav Mohalla,
Village Badli,
Delhi.
(Driver)
2. M/s. Shri Jagdish Transport Service,
At 1, Ambedkar Camp,
Haiderpur Village, Delhi.
Also at H.No. 179, VPO Anangpur,
District Faridabad, Haryana.
(Registered Owner)
3. The Oriental Insurance Co. Ltd.
88, Janpath, Connaught Place,
New Delhi.
(Insurer)
............Respondents
Date of Institution : 20.08.2018 Date of Arguments : 25.03.2023 Date of Judgment : 15.04.2023 APPEARENCES:
Sh. Anoop Pandey, Ld. Counsel for petitioners. Sh. B.K. Gautam, Ld. counsel for driver and owner. Sh. Sanjay Kumar, Ld. Counsel for insurance company.Smt. Swade & Ors. Vs. Monu & Ors. Page 2 of 25
MACP No. 532/18; FIR No. 383/18 DOD:15.04.2023 Petition under Section 166 and 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/ from the date of accident till its realization for the fatal injury sustained by Sh. Riyasat (deceased in the present case), aged about 55 years in a Motor Vehicular Accident which occurred on 11.07.2018 at about 11:15 AM, near Village Basi, Khekra Nahar Pul, Jungle, Peripheral Highway, District Baghpat, UP, involving Tata 1109 bearing registration no. DL1THQ0061 (offending vehicle) which was being driven by its driver/respondent no.1 in a rash and negligent manner.
2. It is averred in the claim petition that on 11.07.2018, Sh. Riyasat(deceased herein) was working on the site Peripheral Highway, near Village Basi, Khekra, Nahar Pul Jungle, District Baghpat. At about 11:15 AM, offending vehicle being driven by respondent no. 1 at a very high speed, in a rash and negligent manner came from Ghaziabad side and hit him with a great force. Due to the aforesaid forceful impact, he fell down on the road and sustained grievous injuries. He was immediately taken to Community Health Centre, Baghpat and thereafter, he was referred to Government Hospital, Meerut, UP, where he died during the course of treatment on the same day. Postmortem was conducted at mortuary of Medical College, Meerut, UP. It is categorically averred that accident had Smt. Swade & Ors. Vs. Monu & Ors. Page 3 of 25 MACP No. 532/18; FIR No. 383/18 DOD:15.04.2023 taken place due to rash and negligent driving of offending vehicle by respondent no. 1. FIR No. 383/18 u/s. 279/338/304A IPC was registered at PS. Khekra, District Baghpat with regard to the said accident. It is further averred that deceased was working as Supervisor with Abdulla Contractor, Village Kabirpur, Bijaura, Gajraula Amroha, UP and earning Rs. 19,700/ per month at the time of accident. The offending vehicle was found to be owned by respondent no. 2 and insured with respondent no. 3 during the period in question.
3. In their joint written statement, the respondents no. 1 & 2 i.e. driver and registered owner raised preliminary objection that the respondent no. 1 was having valid driving licence at the time of accident. It has been claimed that offending vehicle was insured with respondent no. 3 at the time of accident and as such, they were not liable to pay any compensation to the petitioners. On merits, they denied the averments made in the claim petition and prayed for its dismissal.
4. In its written statement, the respondent no.3/insurance company raised preliminary objection that this Tribunal does not have jurisdiction to entertain the present claim petition. The insurance company did not raise any statutory defence provided u/s. 149(2) M.V. Act. It has been admitted that offending vehicle was insured with it at the time of accident. On merits, it denied the averments made in the claim petition and prayed for its dismissal.Smt. Swade & Ors. Vs. Monu & Ors. Page 4 of 25
MACP No. 532/18; FIR No. 383/18 DOD:15.04.2023
5. From the pleadings of the parties, the following issues were framed by my Ld Predecessor vide order dated 06.05.2019:
1. Whether this Claims Tribunal has no jurisdiction to entertain and try the present claim petition in view of preliminary objection no. 2 raised by insurance policy?OPR3
2. Whether the deceased Riyasat died in road traffic accident on 11.07.2018 at about 11:15 am at Peripheral Highway, Near Village Basi, Khekra, Nahar Pul Jungle, PS. Khekra, District Baghpat, UP within the jurisdiction of PS. Khekra due to rash and negligent driving of Tata 1109 bearing registration no. DL1TCHQ0061 by its driver namely Monu/R1, owned by M/s. Shri Jagdish Transport Service/R2 and was insured with The Oriental Insurance Co. Ltd/R3?OPP.
3. Whether the Lrs of deceased are entitled to any compensation if so to what amount and from whom?OPP.
4. Relief.
6. In support of their claim, the petitioners have examined two witnesses i.e. PW1 Smt. Swade (widow of deceased) and PW2 Sh. Sehzad(eyewitness) and their evidence was closed vide order dated 17.08.2022. On the other hand, the respondents no. 1 & 2 have examined two witnesses i.e. R1W1 Sh. Monu (respondent no. 1 herein) and R2W1 Sh. Shyam. The insurance company has examined one witness i.e. R3W1 Sh. Ajit Kumar Lakra, Dy. Manager of Insurance company.Smt. Swade & Ors. Vs. Monu & Ors. Page 5 of 25
MACP No. 532/18; FIR No. 383/18 DOD:15.04.2023
7. I have heard the arguments addressed by Ld. counsel for the parties. I have also gone through the record.Issue No. 1
8. For the purpose of this issue, the testimony of PW2 Sh. Sehzad (eyewitness) is relevant. He deposed in his evidence that on 11.07.2018 at about 11:15 am, he, Sh. Riyasat (deceased) and other persons were working on Peripheral Highway on the extreme left side of the road after putting proper safety cones and proper demarcation near Village Basi, Khekra, District Baghpat, in the meanwhile, offending vehicle which was being driven by respondent no. 1 at a very high speed, in a rash and negligent manner, came from Ghaziabad side and hit the deceased with a great force, as a result of which, he fell down on the road and sustained grievous injuries. He further deposed that he was immediately taken to Community Health Centre, Baghpat and thereafter, he was referred to Government Hospital, Meerut, where he died during the course of treatment. He categorically deposed that the accident had taken place due to the negligence of respondent no. 1. During his crossexamination on behalf of insurance company, he deposed that he was working at Bussi Nehar at the time of accident and deceased was also working with him. He further deposed that accident had occurred on KMP Eastern Peripheral Expressway. He admitted that in all the lanes, there was heavy traffic. He deposed that he had called at 100 number. He deposed that he did not Smt. Swade & Ors. Vs. Monu & Ors. Page 6 of 25 MACP No. 532/18; FIR No. 383/18 DOD:15.04.2023 remember that the FIR was got lodged by him or not. He denied the suggestion that he had not seen the accident.
9. It is evident from the testimony of PW2 that the respondents could not impeach his testimony through litmus test of crossexamination and said witness is found to have successfully withstood the test of cross examination. Moreover, FIR No. 383/18 (which is part of criminal case record) is shown to have been registered on the statement of this witness.
The contents of said FIR would show that he has disclosed therein the same sequence of facts leading to the accident. Thus, there is no reason to disbelieve the testimony of this witness made on oath.
10. No doubt, the respondents no. 1 & 2 have examined themselves as R1W1 and R2W1 respectively during the course of inquiry. So far as, the testimony of R2W1 is concerned, same is of no relevance for the purpose of this issue as the said witness was undisputedly not present at the place of accident when the accident had taken place. Hence, his testimony is not being discussed.
11. As regards the testimony of R1W1 i.e. driver of offending vehicle, he deposed in his evidence by way of affidavit (Ex. R1W1/A) that he had not committed the accident. He further deposed that he was having valid driving licence at the time of accident. He further deposed that Smt. Swade & Ors. Vs. Monu & Ors. Page 7 of 25 MACP No. 532/18; FIR No. 383/18 DOD:15.04.2023 offending vehicle was insured with respondent no. 3 at the time of accident. During his cross examination on behalf of petitioner, he admitted that he was arrested by the police regarding the accident and later on released on bail. He further admitted that he had not lodged any complaint regarding his false implication in this case. During his crossexamination on behalf of insurance company, he deposed that he was driving the offending vehicle at the time of accident. He admitted that the offending vehicle was new and no certificates of fitness and authorization had been issued by the authority till the date of accident. The record shows that offending vehicle had been purchased on 05.07.2018 whereas the accident had taken place on 11.07.2018.
12. Ld. Counsel for the respondents vehemently argued that the petitioners have failed to prove negligence on the part of respondent no. 1 in causing the accident. For this purpose, he has heavily relied upon the testimony of R1W1 as discussed above. On the other hand, Ld. counsel for petitioners argued that the testimony of R1W1 should not be believed as he is an interested witness. He further submitted that FIR was registered against respondent no. 1 and he is facing trial in the criminal case.
13. As regards the testimony of the respondent no. 1 (examined as R1W1), it may be noted that he has simply deposed that deceased had also contributed in the accident. The respondent no. 1 has admitted during his crossexamination that he was arrested by the police officials regarding the Smt. Swade & Ors. Vs. Monu & Ors. Page 8 of 25 MACP No. 532/18; FIR No. 383/18 DOD:15.04.2023 accident and later on released on bail. Thus, there is no reason to discard the testimony of PW2 made on oath.
14. Moreover, FIR No. 383/18 (supra) was also registered at PS. Khekra with regard to accident in question. Copy of said FIR alongwith copy of chargesheet filed before Ld. Magistrate in State case, have been annexed alongwith claim petition(Ex. PW1/10 colly). Copy of said FIR(which is part of Ex. PW1/10 colly) would show that same was registered on the statement of PW2 Sh. Sehzad who was also present at the spot at the time of accident. The presence of this eyewitness at the spot of accident at the time of accident can be substantiated by seeing the list of witnesses annexed alongwith the chargesheet filed in the criminal case wherein his name is mentioned at S.No. 1. Even otherwise, the testimony of PW2 inspires confidence as FIR No. 383/2018 mentioned supra, is shown to have been recorded at PS. Khekra on 11.07.2018 i.e. on the date of accident itself. Hence, there is no reason to disbelieve his uncontroverted testimony on the point of accident in question being caused by respondent no. 1 while driving the offending vehicle.
15. The very fact that respondent no. 1 was chargesheeted(which is part of Ex. PW1/10 colly) by the police for offences punishable u/s. 279/338/304A IPC would further show that Investigating Agency also concluded after completion of the investigation that the said accident had taken place due to rash and negligent driving of offending vehicle by its Smt. Swade & Ors. Vs. Monu & Ors. Page 9 of 25 MACP No. 532/18; FIR No. 383/18 DOD:15.04.2023 driver namely Sh. Monu i.e. respondent no. 1 herein. Furthermore, said FIR is shown to have been registered on 11.07.2018 i.e. on the date of accident itself. Thus, there is no possibility of false implication of respondent no. 1 and / or false involvement of offending vehicle the instance of the petitioners.
16. Not only this, copy of PM Report of deceased would show that cause of death was coma as a result of injury sustained. The injuries as noted in the relevant column with regard to external injuries, as mentioned therein, are consistent with the injuries which are sustained in motor vehicular accident. Again, there is no challenge to the aforesaid documents from the side of respondents and same corroborates the testimony of PW2 to the aforesaid extent.
17. 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 pre ponderence of probabilities that Sh. Riyasat had sustained fatal injuries in the road accident which took place on 11.07.2018 at about 11:15 AM, near Village Basi, Khekra Nahar Pul, Jungle, Peripheral Highway, District Baghpat, UP, due to rash and negligent driving on the part of driver of offending vehicle. Thus, issue no.1 is decided accordingly.
Smt. Swade & Ors. Vs. Monu & Ors. Page 10 of 25MACP No. 532/18; FIR No. 383/18 DOD:15.04.2023 ISSUE NO. 2
18. 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
19. PW1 Smt. Swade has deposed in his evidence by way of affidavit Ex. PW1/A that deceased was working as Supervisor with Abdulla Contractor, Village Kabirpur, Bijaura, Gajraula Amroha, UP and was getting monthly salary of Rs. 19,700/ at the time of accident. She further deposed that all the petitioners were financially dependent upon the deceased. She has relied upon the following documents: Serial Description of Remarks No. documents
1. Copy of her Aadhaar Card Ex. PW1/1
2. Copy of Aadhaar Card of Ex. PW1/3 to Ex.
petitioners no. 2 to 6 PW1/8respectively
3. Copy of Ration Card of Ex. PW1/9 petitioners
4. Certified copy of criminal Ex. PW1/10(colly) case record Smt. Swade & Ors. Vs. Monu & Ors. Page 11 of 25 MACP No. 532/18; FIR No. 383/18 DOD:15.04.2023
20. During her cross examination on behalf of driver and owner, she deposed that deceased was around 50 years old at the time of accident. She further deposed that she had not filed any document in respect of age of deceased. She deposed that deceased was working in Baghpat, UP. She further deposed that she had not placed on record any proof of income and employment of deceased. She deposed that her all sons were labourer. During her crossexamination on behalf of insurance company, she deposed that she was a housewife and looking after her children. She admitted that all her children were major. She deposed that she had not placed the copy of Aadhaar Card of deceased since the same had been misplaced in the accident in question. She denied the suggestion that she had not filed the copy of Aadhaar Card of deceased intentionally as the age of deceased was above 60 years at the time of accident. She denied the suggestion that the age of deceased was mentioned as 55 years in the postmortem report.
21. During the course of arguments, Ld. counsel for petitioners fairly conceded that for want of any cogent and definite evidence being led by petitioners regarding monthly income of deceased, his income should be considered as per Minimum Wages Act in order to calculate the loss of dependency. He however argued that future prospects may also be awarded to the petitioners as per law.
Smt. Swade & Ors. Vs. Monu & Ors. Page 12 of 25MACP No. 532/18; FIR No. 383/18 DOD:15.04.2023
22. As already noted above, PW1 Smt. Swade, who is widow of deceased deposed in her evidence that deceased was earning Rs. 19,700/ per month at the time of accident. However, she has not filed any documentary evidence in this regard. Petitioners have also failed to file any document in respect of educational qualification of deceased. For want of cogent and definite evidence being led by petitioners with regard to actual monthly income of deceased, his notional monthly income is being taken as equivalent to that of an unskilled person under Minimum Wages Act applicable in the State of UP during the relevant period. The minimum wages of an unskilled person were Rs. 7,600/(rounded off) per month as on the date of accident which is 11.07.2018.
23. As per the case of petitioners, deceased was aged about 49 years at the time of accident. It is pertinent to note that petitioners have failed to file any document in respect of age of deceased and this fact has been duly admitted by PW1 during her crossexamination. A bare perusal of postmortem report of deceased reveals that his age is mentioned as 55 years in the said report. Thus, the age of deceased is accepted as 55 years at the time of accident. Hence, the multiplier of 11 would be applicable in view of pronouncement made by Constitutional Bench of Apex Court in the case titled as "Sarla Verma Vs. DTC" 2009 ACJ 1298 SC.
24. Considering the age of deceased and the fact that he was not having permanent job at that time, future prospects @ 10% has to be Smt. Swade & Ors. Vs. Monu & Ors. Page 13 of 25 MACP No. 532/18; FIR No. 383/18 DOD:15.04.2023 awarded in favour of petitioners in view of pronouncement made by Constitutional Bench of Apex Court in the case titled as "National Insurance Company Ltd. Vs. Pranay Sethi & Ors." Civil Appeal No. 6961/2015 decided on 31.10.2017, as well as in view of decision of Hon'ble High Court of Delhi in appeal bearing MAC APP No. 798/2011 titled as "Bajaj Allianz General Insurance Company Ltd. Vs. Pooja & Ors", decided on 02.11.17.
25. PW1 has categorically deposed in her evidence by way of affidavit (Ex. PW1/A) that all the petitioners were fully dependent upon the services of deceased. Considering all the facts and circumstances, it is held that there were six dependents i.e. widow and five children of deceased at the time of accident. Hence, there has to be deduction of one fourth as held in the case of Sarla Verma mentioned supra. Thus, the total of loss of dependency would come out to Rs. 8,27,640/ (Rs. 7,600/ X 3/4 X 110/100 X 12 X 11). Hence, a sum of Rs. 8,28,000/ (rounded off) is awarded under this head in favour of the petitioners.
LOSS OF LOVE & AFFECTION
26. After the celebrated judgment of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors. mentioned supra and recent judgment titled New India Assurance Company Limited versus Somwati & Ors., Civil Appeal no. 3093 of 2020 dated 07.09.2020 the petitioners Smt. Swade & Ors. Vs. Monu & Ors. Page 14 of 25 MACP No. 532/18; FIR No. 383/18 DOD:15.04.2023 are not entitled to be compensated under this head. Further 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 CONSORTIUM
27. In view of the judgment of Hon'ble Supreme Court in case titled as, "New India Assurance Company Limited V/s Somwati & Ors.", Civil Appeal No.3093 of 2020, dated 07.09.2020, I am of the considered opinion that widow and five children of deceased are entitled for payment of Rs.40,000/ each towards loss of consortium. Furthermore, as per judgment of Pranay Sethi (supra), the amount awarded under this Head should be enhanced @ 10% in every three years. This judgment was passed by Hon'ble Supreme Court on 31.10.2017. Consequently, a sum of Rs. 40,000/ + Rs. 4,000/ (10% of Rs.40,000/) = Rs.44,000/ x 6 = Rs. 2,64,000/ (Rs.44,000/ each for all the four claimants/ petitioners) is awarded to petitioner(s)/claimant(s) under this head.
LOSS OF ESTATE & FUNERAL EXPENSES
28. 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 Smt. Swade & Ors. Vs. Monu & Ors. Page 15 of 25 MACP No. 532/18; FIR No. 383/18 DOD:15.04.2023 Insurance Company Ltd. Vs. Pranay Sethi & Ors." mentioned supra, a sum of Rs. 16,500/ 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. 8,28,000/
2. Loss of Consortium Rs. 2,64,000/
3. Loss of Estate & Funeral Rs. 33,000/ Expenses Total Rs. 11,25,000/
29. This brings me down to the next question as to who, out of the respondents, is liable to pay the compensation amount so assessed herein above. Ld counsel for insurance company vehemently argued that respondent no. 1 was driving the offending vehicle without any permit and fitness at the time of accident. He further argued that there was no valid registration certificate in respect of offending vehicle as on the date of accident, which constitutes fundamental breach in the terms and conditions of insurance policy on the part of insured. Thus, insurance company is not liable to pay the compensation amount. Alternatively, he urged that the insurance company is atleast entitled to recovery rights against driver and registered owner of the offending vehicel. For the said purpose, Ld counsel heavily relied upon the testimonies of R3W1 Mr. Ajit Kumar Lakra, Dy. Manager, Oriental Insurance Company Ltd.
Smt. Swade & Ors. Vs. Monu & Ors. Page 16 of 25MACP No. 532/18; FIR No. 383/18 DOD:15.04.2023
30. In order to appreciate the aforesaid contentions raised on behalf of insurance company, it would be appropriate to discuss the testimonies of R2W1 & R3W1 examined on behalf of registered owner and insurance company respectively during the course of inquiry.
31. R2W1 has deposed in his evidence that offending vehicle was newly purchased and it was returning back from the concerned RTO office after inspection/registration and there was also Form24 dated 11.07.2022 issued by RTO, Faridabad, Haryana. He has relied upon copy of Form - 24 Ex. RW2/2; RC of offending vehicle Ex. RW2/3; copy of permit of offending vehicle Ex. RW2/4 and insurance policy Ex. RW2/5. During his cross examination on behalf of insurance company, he deposed that he had received notice issued by the insurance company for production of original insurance policy, original permit and fitness certificate of offending vehicle. He admitted that as on the date of accident, permit to ply the offending vehicle on the road had not been issued by the authority. He volunteered that the offending vehicle was got inspected by the authorities on the date of accident itself and permit was issued later on after the accident.
32. R3W1 has deposed in his evidence by way of affidavit Ex. R3W1/A that accident had occurred on 11.07.2018 whereas the certificate of permit of the offending vehicle was valid from 18.07.2018 to 16.07.2019 which did not cover the date of accident and thus, there was violation of terms and conditions of insurance policy. During his crossexamination on Smt. Swade & Ors. Vs. Monu & Ors. Page 17 of 25 MACP No. 532/18; FIR No. 383/18 DOD:15.04.2023 behalf of driver and owner, he deposed that he was aware that as per M.V. Act, for a new transport vehicle, 15 days time has been prescribed to obtain RC and Permit. He further deposed that it is a matter of record that offending vehicle was purchased on 05.07.2018 and the accident in the matter took place on 11.07.2018. He denied the suggestion that the driver and owner did not violate any terms and conditions of insurance policy. He further denied the suggestion that at the time of accident, the driver was having valid driving licence to drive transport vehicle (Heavy Goods Vehicle).
33. The factual position which emerges from the aforesaid discussion is that registration certificate of the offending vehicle was issued on 17.07.2018 i.e. about 7 days of the accident. It is evident on record that during crossexamination of R3W1, he admitted that as per M.V. Act, for a new transport vehicle, 15 days time has been prescribed to obtain RC and permit. It is also established from the testimony of R2W1 that RC holder had applied for issuance of permanent RC in the office of concerned Authority. In other words, it is proved on record that the respondent no. 2 had taken all the necessary steps for issuance of RC of the offending vehicle as on the date of accident which is 11.07.2018.
34. At this juncture, it would be relevant to reproduce the provisions contained in Section 39 & 43 of M.V. Act, which read as under: "39. Necessity for registration No person shall drive any motor vehicle and no owner of a motor vehicle shall Smt. Swade & Ors. Vs. Monu & Ors. Page 18 of 25 MACP No. 532/18; FIR No. 383/18 DOD:15.04.2023 cause or permit the vehicle to be driven in any public place or in any other place unless the vehicle is registered in accordance with this Chapter and the certificate of registration of the vehicle has not been suspended or cancelled and the vehicle carries a registration mark displayed in the prescribed manner:
Provided that nothing in this section shall apply to a motor vehicle in possession of a dealer subject to such conditions as may be prescribed by the Central Government.
"43. Temporary registration(1) Notwithstanding anything contained in section 40 the owner of a motor vehicle may apply to any registering authority or other prescribed authority to have the vehicle temporarily registered in the prescribed manner and for the issue in the prescribed manner of a temporary certificate of registration and a temporary registration mark."
(2) A registration made under this section shall be valid only for a period not exceeding one month, and shall not be renewable:
Provided that where a motor vehicle so registered is a chasis to which a body has not been attached and the same is detained in a workshop beyond the said period of one month for being fitted with a body or any unforeseen circumstances beyond the control of the owner, the period may, on payment of such fees, if any, as may be prescribed, be extended by such further period or periods as the registering authority or other prescribed authority, as the case may be, may allow.Smt. Swade & Ors. Vs. Monu & Ors. Page 19 of 25
MACP No. 532/18; FIR No. 383/18 DOD:15.04.2023 (3) In a case where the motor vehicle is held under hire purchase agreement, lease or hypothecation, the registering authority or other prescribed authority shall issue a temporary certificate of registration of such vehicle, which shall incorporate legibly and prominently the full name and the address of the person with whom such agreement has been entered into by the owner".
35. A bare perusal of the aforesaid provisions would clearly show that no person shall drive the motor vehicle in any public place without any valid registration granted by the Registering Authority in accordance of the provisions of M.V. Act. As per mandate of Section 43(supra), the owner of vehicle may apply to Registering Authority for temporary registration and temporary registration mark. If such temporary registration is granted by the Authority, same shall be valid only for a period of one month. As per proviso appended below Section 43, it is quite crystal clear that the period of one month may be extended for such further period by the Registering Authority only in a case where temporary registration is granted in respect of chasis to which body has not been attached and same is detained in a workshop beyond the said period of one month for being fitted with a body or due to some other unforeseen circumstances beyond the control of the owner.
36. Now turning back to the facts of the present case. As already noted above, the accident in question took place on 11.07.18 and the registration certificate was issued to owner on 17.07.2018 i.e. within one Smt. Swade & Ors. Vs. Monu & Ors. Page 20 of 25 MACP No. 532/18; FIR No. 383/18 DOD:15.04.2023 month of the purchase of the vehicle. Hence, the offending vehicle was being used on public road as per Motor Vehicle Rules. Keeping in view the existence of valid insurance policy, insurance company becomes liable to pay the compensation amount, as insurance company is liable to indemnify the insured. Issue no. 2 is decided accordingly.
ISSUE NO.3/RELIEF
37. In view of my finding on issues no. 1 & 2, I award a sum of Rs. 11,25,000/ (including interim award amount if any) alongwith interest @ 7% per annum w.e.f date of filing petition i.e. 20.08.2018 till the date of its realization, in favour of Lrs of deceased/petitioners and against the respondents(Reliance placed on judgment "Oriental Insurance Company Ltd. Vs. Sangeeta Devi & Ors" bearing MAC. APP. 165/2011 decided on 22.02.2016). Issue no. 3 is decided accordingly.
APPORTIONMENT
38. Statements of petitioners in terms of Clause 29 MCTAP was recorded on 19.01.2023. Having regard to the facts and circumstances of the case and in view of their statements, it is hereby ordered that out of total compensation amount, the petitioner no. 1 Smt. Swade shall be entitled to share amount of Rs. 6,25,000/ (Rupees Six Lakhs and Twenty Five Thousand Only) alongwith proportionate interest and the petitioner no. 2 to Smt. Swade & Ors. Vs. Monu & Ors. Page 21 of 25 MACP No. 532/18; FIR No. 383/18 DOD:15.04.2023 6 namely Firashat Ali, Zarar Ahmad, Israr, Farjana and Nadeem shall be entitled to share amount of Rs. 1,00,000/ each (Rupees One Lakh Only) alongwith proportionate interest.
39. Out of share amount of petitioner no. 1, a sum of Rs. 1,25,000/ (Rupees One Lakh and Twenty Five Thousand Only), shall be immediately released to her through her saving bank account no. 110084453863 with Canara Bank, Village Harauda, Simbhaoli PO Garh Tehsil, Ghaziabad, UP, having IFSC Code CNRB0018782 and remaining amount alongwith interest amount are directed to be kept in the form of FDRs in the multiples of Rs. 25,000/ each for one month, two months, three months and so on and so forth having cumulative interest.
40. The entire share amounts of petitioner no. 2 to 6 alongwith proportionate interest be immediately released to them through their respective saving bank account no. 110085855082(Firashat Ali), no. 110083892444(ZararAhmad), 110083955183(Israr), 110084375920 (Farjana) and 8782231000735(Nadeem) with Canara Bank, Village Harauda, Simbhaoli PO Garh Tehsil, Ghaziabad, UP, having IFSC Code CNRB0018782 as per rules.
41. All the FDRs to be prepared as per aforesaid directions, shall be subject to the following conditions: Smt. Swade & Ors. Vs. Monu & Ors. Page 22 of 25 MACP No. 532/18; FIR No. 383/18 DOD:15.04.2023
(a) The Bank shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the claimant(s) i.e. the savings bank account(s) of the claimant(s) shall be an individual savings bank account(s) and not a joint account(s).
(b) The original fixed deposit shall be retained by the bank in safe custody. However, the statement containing FDR number, FDR amount, date of maturity and maturity amount shall be furnished by bank to the claimant(s).
(c) The monthly interest be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant(s) near the place of their residence.
(d) The maturity amounts of the FDR(s) be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant(s) near the place of their residence.
(e) No loan, advance, withdrawal or premature discharge be allowed on the fixed deposits without permission of the Court.
(f) The concerned bank shall not to issue any cheque book and/or debit card to claimant(s). However, in case the debit card and /or cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount. The bank shall debit card(s) freeze the account of the claimant(s) so that no debit card be issued in respect of the account of the claimant(s) from any other branch of the bank.
(g) The bank shall make an endorsement on the passbook of the claimant(s) to the effect that no cheque book and/or debit card have been issued and shall not be issued without the permission of the Court and claimant(s) shall produce the passbook with the necessary endorsement before the Court on the next date fixed for compliance.
Smt. Swade & Ors. Vs. Monu & Ors. Page 23 of 25MACP No. 532/18; FIR No. 383/18 DOD:15.04.2023
(h) It is clarified that the endorsement made by the bank alongwith the duly signed and stamped by the bank official on the passbook(s) of the claimant(s) is sufficient compliance of clause(g) above.
(i) The petitioner is directed to open a Motor Accident Claims Annuity (Term) Deposit Account (MACAD) in terms of order dated 07.12.2018 of Hon'ble Justice J.R. Midha in case titled as Rajesh Tyagi and Others Vs. Jaibir Singh and Others F.A.O No. 842/03 as per clause 31 of MCTAP and form VIII titled as Motor Accident Claims Annuity Deposit (MACAD) Scheme as directed in the said order.
(j) Concerned Manager, SBI, Rohini Court branch is further directed to disburse the FD amount in Motor Accident Claims Annuity Deposit (MACAD) Scheme account as directed by Hon'ble Delhi High Court vide order dated 07.12.18, on completing necessary formalities as per rules.
42. Respondent no. 3/Oriental Insurance Co. Ltd, 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 @ 9% p.a for the period of delay. Concerned Manager, SBI, Rohini Court Branch is directed to transfer the respective share amounts immediately to aforesaid petitioners in their aforesaid saving bank accounts, 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 cheques. 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, copy of bank passbooks and copy Smt. Swade & Ors. Vs. Monu & Ors. Page 24 of 25 MACP No. 532/18; FIR No. 383/18 DOD:15.04.2023 of residence proof of the petitioners, be sent to Nodal Officer of SBI, Rohini Court, Branch, Delhi for information and necessary compliance. Form XV & XVII in terms of MCTAP are 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 the open Court on 15.04.2023 (VINOD YADAV) Judge MACT2 (North) Rohini Courts, Delhi Certified that above award contains 25 pages and each page is signed by me.
(VINOD YADAV) Judge MACT2 (North) Rohini Courts, Delhi Smt. Swade & Ors. Vs. Monu & Ors. Page 25 of 25