Delhi District Court
Hari Lal & Anr. vs . Kapil Dev & Anr. on 13 April, 2017
IN THE COURT OF MS. MADHU JAIN, PRESIDING OFFICER:
MOTOR ACCIDENT CLAIMS TRIBUNAL: SOUTH EAST
DISTRICT/SAKET COURTS COMPLEX/NEW DELHI
MACT No. 3931/16
DD Entry No. 9 (dated 06.09.2015)
Police Station Matt, District Mathura, UP
Hari Lal & Anr. Vs. Kapil Dev & Anr.
Fatal Case
1. Shri Hari Lal S/o Shri Mishrilal (Father of deceased)
2. Smt. Rekha Devi W/o Shri Hari Lal (Mother of deceased)
Both R/oH97/C, BlockH, Harkesh Nagar,
South Delhi20.
.............Petitioners/claimants
Verses
1. Shri Kapil Dev S/o Shri Prabhu Chand (DrivercumOwner),
R/o H. No. B133, Prem Vihar, Khora Colony,
Ghaziabad, Uttar Pradesh201010.
2. TATA AIG General Insurance Co. Ltd. (Insurer),
Lotus Tower, 1st Floor, Community Centre,
New Friends Colony. New Delhi25.
......................Respondents
Date of Institution : 07.10.2015
Date of reserving judgment/order : 13.04.2017
Date of Pronouncement : 13.04.2017
JUDGMENT:
1. Present claim petition under Section 166 & 140 of Motor Vehicle Act was filed on behalf of petitioners in respect of fatal injuries suffered by their daughter namely Ms Sonia Kumari (hereinafter referred to as deceased) in a road accident.
MACT No. 3931/16 Hari Lal & Anr. Vs. Kapil Dev & Anr. Page No. 1/ 192. In the present case, petitioners are parents of deceased.
3. Brief facts of the case are that on 05.09.2015 at about 09.00 PM, deceased alongwith her friends was going from Agra to Noida in offending Scorpio Car bearing registration No. UP14CC9131 which was driven by respondent No. 1 in a rash and negligent manner and with high speed due to which abovesaid vehicle turned turtle near Village Bheem, Milestone 99 on Yamuna X pressway. Deceased suffered fatal injuries in accident.
4. DD No. 9 (dated 06.09.2015) was got registered at PS Matt, District Mathura, UP.
5. During proceedings, respondent No. 1 filed his written statement asserting that accident did not take place due to negligence on part of answering respondent. It is asserted that answering respondent was driving his vehicle in normal speed when suddenly tyre of his vehicle burst and it collided with divider. It is asserted that answering respondent was having a valid driving licence bearing No. DL1320040092920 on 05.09.2015. It is further asserted that vehicle of answering respondent was duly insured with respondent No. 2 vide policy No. 0153295506. It is denied that deceased alongwith her friends was going in his vehicle as passengers due to the fact that they were traveling in the vehicle as they were known to answering respondent.
6. During proceedings, respondent No. 2/Insurance Company filed its written statement taking preliminary objections that present petition is not maintainable as accident did not take place due to negligence of respondent No. 1 and for the same reason no FIR was registered. It is asserted that proving rashness and negligence of driver is sine qua non for filing petition under Section 166 of MACT No. 3931/16 Hari Lal & Anr. Vs. Kapil Dev & Anr. Page No. 2/ 19 Motor Vehicle Act and petitioners have failed to do so. It is asserted that answering respondent is entitled to defence available under Section 170 / 149 (2) of Motor Vehicle Act. It is asserted that answering respondent is not liable to pay any compensation as deceased was traveling in offending vehicle on hire or reward which means that deceased is not covered under the definition of third party. However, it is admitted that vehicle bearing registration No. UP 14CC9131 was insured with answering respondent vide private car package policy No. 0153295506 from 27.12.2014 to 26.12.2015 in the name of respondent No. 1.
7. From pleadings following issues were framed on 19.07.2016 :
1. Whether the deceased received fatal injuries in the accident which took place on 05.09.2015 at 09.00 PM involving offending vehicle i.e. bearing No. UP14CC9131 due to rash and negligent driving of respondent No. 1/ driver, owned by respondent No. 1/ owner and insured by respondent No. 2 (insurance company)? OPP
2. To what amount of compensation the petitioner is entitled to claim and from whom?
3. Relief.
8. During evidence, petitioner No. 1 / Shri Hari Lal, father of deceased examined himself as PW1 and tendered his affidavit of evidence as Ex. PW 1/A. He has relied upon certain documents i.e. copy of Election ICard of deceased is Mark A, DD entry made by police is Mark B, treatment records alongwith death summary and medical bills are collectively Ex. PW1/2, his Aadhar Card and Aadhar Card of petitioner No. 2 are collectively Ex. PW1/3.
MACT No. 3931/16 Hari Lal & Anr. Vs. Kapil Dev & Anr. Page No. 3/ 199. During evidence, petitioners have got examined eyewitness of accident i.e. Shri Dhiraj Kumar as PW2 who has tendered his evidence by way of affidavit Ex. PW2/X and deposed about the manner of accident.
10. During evidence, petitioners have also got examined Shri Sachin Awasthi, Sr. Executive (Legal & Statutory Compliance) of Wipro Limited as PW3 who has proved pay slips of deceased w.e.f. June, 2015 to August, 2015 collectively as Ex. PW3/2 and appointment letter dated 07.08.2013 and Form 16 of deceased collectively as Ex. PW3/3.
11. No other witness was examined by petitioners.
12. Respondent No. 1/ Shri Kapil Dev got himself examined as R1W1 and tendered his evidence by way of affidavit Ex. R1W1/A. He has deposed that accident did not take place due to his rash and negligent driving as he was driving his vehicle with normal speed and suddenly tyre of his vehicle burst due to which vehicle collided with divider. He has deposed that he was having valid driving licence on 05.09.2015. He has deposed that his vehicle was duly insured with respondent No. 2. He has deposed that victim Shri Praveen, who was traveling in his vehicle alongwith deceased, was known to him. Shri Praveen requested him to take deceased in his vehicle and and it was decided that all occupants will share the expenses. He has relied upon DD entry dated 06.09.2015 as Mark A (sic), copy of his driving licence as Mark B (sic), copy of registration certificate of offending vehicle as Mark C and copy of insurance policy of his vehicle as Mark D.
13. Respondent No. 2/Insurance Company got examined its Sr. Executive i.e. Ms Namrata Dawar as R2W1 who has tendered her evidence by way of MACT No. 3931/16 Hari Lal & Anr. Vs. Kapil Dev & Anr. Page No. 4/ 19 affidavit Ex. R2W1/A and proved insurance policy of offending vehicle as Ex. R2W1/B, circular of IRDA dated 16.11.2009 as Ex. R2W1/C and notice under Order 12 Rule 8 CPC sent to driver as Ex. R2W1/D. She has deposed that Insurance Company is not liable to pay any compensation as deceased was traveling in offending vehicle on hire and reward when accident had taken place.
14. After hearing the arguments and considering the material on record, my issue wise findings are as follows :
Issue No. 1 (Negligence):
15. Petitioners have got examined eyewitness to the accident i.e. PW2 Dhiraj who has deposed that on 05.09.2015 at about 09.00 PM, he was coming from Agra to Noida alongwith his wife Pooja and other friends in a Scorpio Car bearing registration No. UP14CC9131 as passengers. Driver of said car was driving it with high speed. He requested the driver to drive at a normal speed, but driver did not care and kept on driving the car with high speed due to which abovesaid car turned turtle after hitting divider near Village Bheem, Milestone 99 on Yamuna Xpressway. PW2 has further deposed that he also suffered injuries in accident and deceased was admitted in the hospital. Later on, he came to know that deceased died during the course of treatment.
16. Learned counsel for respondent No. 1 has argued that accident did not take place due to rash and negligent driving of respondent No. 1, but solely due to tyre burst of vehicle of respondent No. 1. In this regard, learned counsel for respondent No. 1 has relied upon the crossexamination of eyewitness i.e. PW2 Dhiraj wherein PW2 has deposed that he heard a very loud noise after which vehicle collided with divider. Further, learned counsel MACT No. 3931/16 Hari Lal & Anr. Vs. Kapil Dev & Anr. Page No. 5/ 19 for respondent No. 1 has also relied upon the testimony of respondent No. 1 who got himself examined as R1W1 and deposed that accident did not take place due to his negligence but due to the fact that tyre of his vehicle burst. Though PW2 has deposed during his crossexamination that he heard a loud noise before the vehicle collided with divider, but he has also deposed that he cannot tell the exact reason of loud noise. Similarly, though respondent No. 1 has deposed that tyre of his vehicle burst, but he also admitted during his cross examination that he never informed the police that the tyre of his vehicle had burst before collision. In such circumstances and especially when eyewitness i.e. PW2 has deposed that he requested the driver to drive at a normal speed despite which driver kept on driving the car with high speed, contention of counsel for respondent No. 1 that accident took place due to tyre burst cannot be considered
17. Learned counsel for respondent No. 2/Insurance Company has also argued that no FIR has been registered in the present case since no rashness and negligence was found on part of respondent No. 1. She has argued that simple involvement of vehicle cannot make the Insurance Company liable to pay compensation. She has also argued that the petitioners have failed to discharge their onus to prove rashness and negligence on part of driver of vehicle involved which is sine qua non for claiming compensation under Section 166 of Motor Vehicle Act. She has relied upon case laws of 'Lachoo Ram & Ors Vs. HRTC' (Civil Appeal No. 2570/08 decided by Hon'ble Supreme Court on 28.01.2014); 'Rajendra Jha Vs. Aarti Rohatgi & Anr.' (2009 ACJ 2729) & 'Surender Kumar Arora & Anr. Vs. Dr. Manoj Bisla & Ors.' (Civil Appeal No. 2943/2012 decided by Hon'ble Supreme Court on 20.03.2012). In the present case, petitioners have duly examined eyewitness to the accident i.e. PW2 who has specifically deposed that respondent No. 1 was MACT No. 3931/16 Hari Lal & Anr. Vs. Kapil Dev & Anr. Page No. 6/ 19 driving offending car with high speed and in a rash and negligent manner. Factum of accident was never denied by respondent No. 1. In fact, respondent No. 1 has admitted during his crossexamination that accident took place on 05.09.2015 when deceased Sonia was traveling in offending vehicle. Nothing came in the crossexamination of eyewitness i.e. PW2 which could create doubt on his testimony regarding the manner of accident and for the same reason his testimony cannot be ignored. In such circumstances, it is proved that accident took place due to rash and negligent driving of respondent No. 1. Though no FIR has been registered in the present case, but nonregistration of the same does not defeat the claim of petitioners especially when factum of accident and rashness and negligence on part of respondent No. 1 has been duly proved by petitioners by way of evidence. Further, it has been held in catena of cases that the proceedings under the Motor Vehicles Act are not akin to the proceedings as in civil suit and hence strict rules of evidence are not required to be followed in this regard. It is also settled law that the term rashness and negligence has to be constructed lightly while making a decision on a petition for claim for the same as compared to the word rashness and negligence as finds mention in the Indian Penal Code. This is because the chapter in the Motor Vehicle Act dealing with compensation is a benevolent legislation and not a penal one.
18. In view of above discussion, petitioners have been able to prove that deceased suffered fatal injuries due to rash and negligent driving of R1. Accordingly, issue No. 1 is decided in favour of the petitioners and against the respondents.
Issue No. 2 (Compensation):
19. Hon'ble Apex Court in Sarla Verma Vs. DTC (AIR 2009 SC 3104) comprehensively dealt with the relevant principals relating to the assessment of MACT No. 3931/16 Hari Lal & Anr. Vs. Kapil Dev & Anr. Page No. 7/ 19 compensation in death cases. Apex Court in this case observed that in fatal accident, the measure of damage is pecuniary loss suffered or is likely to be suffered by each dependent as a result of death, and basically only three facts need to be established by the claimants for assessing compensation in case of death : (a) age of the deceased or claimant whichever is higher, (b) income of the deceased and (c) number of dependents.
20. Age of deceased and parents of deceased: As per Election ICard Mark A, deceased was aged about 20 years as on 01.01.2013. Date of accident is 05.09.2015 which implies that she was aged about 22 years at the time of accident. Since deceased was unmarried at the time of her fatal accident, age of parents shall be considered for assessment of loss of dependency. As per Election ICard Ex. PW1/3 (collectively), mother of deceased as aged about 57 years as on 01.01.2008. Hence, she was aged about 64 years on the date of accident (05.09.2015). Thus, relevant multiplier in the present case is 07.
21. Income: PW1 in her affidavit of evidence has deposed that deceased was working with WIPRO as Associate and was earning Rs.15,000/ per month. In this regard, petitioners have got examined PW3 Shri Sachin Awasthi, Sr. Executive (Legal & Statutory Compliance), WIPRO Limited, Udhyog Vihar, Gurgaon, Haryana who has proved appointment letter and Form 16 of deceased collectively as Ex. PW3/3 and pay slips of the deceased for the months w.e.f. June, 2015 to August, 2015 collectively as Ex. PW3/2. As per last pay slip of deceased for the month of August, 2015 which is collectively Ex. PW3/2, deceased was having a gross income of Rs.13,533/ which included Rs.3,710/ as Basic, Rs.1,855/ as HRA, Rs.1,250/ as medical allowance, Rs.1,484/ as conveyance allowance, Rs.978/ as WBP (Wipro Benefits Plan), Rs. Rs.700/ as advance bonus, Rs.2,306/ as incentive & Rs.1,250/ as attendance Inc. MACT No. 3931/16 Hari Lal & Anr. Vs. Kapil Dev & Anr. Page No. 8/ 19 However, only Basic and HRA can be considered for determination of monthly income of deceased for the assessment of loss of dependency. Hence, monthly income of deceased can be taken as (Rs.3,710/ + Rs.1,855/) Rs.5,565/ per month.
22. Deduction for personal and living expenses: Deceased was unmarried at the time of her fatal accident. Thus, as per Sarla Verma's case (supra), onehalf (½) income of the deceased is to be deducted towards personal and living expenses. Hence, income of deceased is to be taken as (Rs.5,565/ minus Rs.2,782.5) Rs.2,782.5 per month (rounded off to Rs.2,783/).
23. Future prospects: Learned counsel for petitioners has argued that future prospects of deceased should be considered since deceased was a young girl aged about 22 years and she was a permanent employee of WIPRO Limited. In this regard, learned counsel for petitioners has relied upon the testimony of PW3 who has proved salary and employment record of deceased and has also deposed during his crossexamination that deceased was a permanent employee of their company. However, learned counsel for Insurance Company has argued that though PW3 has deposed during his crossexamination that deceased was a permanent employee of their company, but this witness has also admitted in his crossexamination that he has not brought any confirmation letter of deceased. Learned counsel for Insurance Company has further argued that there is nothing on record to show that deceased was a permanent employee of WIPRO Limited and for the same reason nothing can be added in the income of deceased towards future prospects. In the present case, petitioners have duly examined witness from employer of deceased who has proved appointment letter, Form 16 and pay slips of deceased which proves employment and income of deceased. Had deceased been alive, her salary MACT No. 3931/16 Hari Lal & Anr. Vs. Kapil Dev & Anr. Page No. 9/ 19 would have increased in future. Petitioners have also relied upon Sanjay Verma Vs Haryana Roadways 2014 ACJ 692 (SC), Mirajuddin Vs Shonki Ram & Ors MAC App 604/2011 dated 03.12.2013 (Delhi), Reliance General Insurance Company Litimed Vs Haresh Kumar @ Harish Kumar MAC App no. 399/12 dated 27.05.2014 (Delhi), Uttranchal Transport Corporation Vs. Navneet Jerath 2013 ACJ 1966 (Delhi), Neerupam Mohan Mathur Vs New India Assurance Company 2013 (14) SCC 15]. Hence, monthly income of deceased is increased by 50%. Monthly income of deceased comes out to be (Rs.2,783/ + 50% of Rs.2,783/) Rs.4,174.5 per month (rounded off to Rs.4,175/).
24. Loss of dependency: (Rs.4,175/ X 12 X 7) Rs.3,50,700/.
25. Medical Expenses and Ambulance Charges: PW1 has filed treatment records, Discharge Summary, Death Summary and medical bills amounting to Rs.39,322/ collectively as PW1/2 claiming that petitioners have incurred medical expenses for medical treatment of deceased before her death due to accidental injuries. An ambulance bill in the sum of Rs.9,000/ for taking deceased from ESI Hospital to Prakash Hospital is also filed on record. Hence, petitioners are awarded a sum of (Rs.39,322/ + Rs.9,000/) Rs.48,322/ under his head.
26. Hon'ble apex court in case titled 'Rajesh & Ors. Vs. Rajbir Singh & ors.2013(6) SCALE 563" directed Tribunals that irrespective of the claims made in the application, the Tribunals are required to award compensation which should be just equitable and reasonable. In this regard, the Hon'ble apex court revisited the amount of compensation under conventional heads of loss of consortium, loss of love and affection and funeral expenses. Apex court in para no. 20 & 21 held as under:
MACT No. 3931/16 Hari Lal & Anr. Vs. Kapil Dev & Anr. Page No. 10/ 19"20. The ratio of a decision of this Court, on a legal issue is a precedent. But an observation made by this Court, mainly to achieve uniformity and consistency on a socioeconomic issue, as contrasted from a legal principle, though a precedent, can be, and in fact ought to be periodically revisited, as observed in Santosh Devi (Supra). We may, therefore, revisit the practice of awarding compensation under conventional heads: loss of consortium to the spouse, loss of love, care and guidance to children and funeral expense. It may be noted that the sum of Rs. 2,500/ to Rs. 10,000/ in those heads was fixed several decades ago and having regard to inflation factor, the same needs to be increased. In Sarla Verma's case (Supra), it was held that compensation for loss of consortium should be in the range of Rs. 5000/ to Rs. 10,000/. In Legal parlance, 'consortium' is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. That nonpecuniary head of damage has not been properly understood by our Courts. The loss of companionship, love, care and protection, etc., the spouse is entitled to get, has to be compensated appropriately. The concept of nonpecuniary damage for loss of consortium is one of the major heads of award of compensation in other parts of the world more particularly in the United States of America, Australia, etc. English Courts have also recognized the right of a spouse to get compensation even during the period of temporary disablement. By loss of consortium, the courts have made an attempt to compensate the loss of spouse's affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are of the view that it would only be just and reasonable that the courts award at least rupees one MACT No. 3931/16 Hari Lal & Anr. Vs. Kapil Dev & Anr. Page No. 11/ 19 lakh for loss of consortium.
21. We may also take judicial notice of the fact that the Tribunals have been quite frugal with regard to award of compensation under the head of 'funeral Expenses'. The 'Price Index', it is a fact has gone up in that regard also. The head 'Funeral Expenses' does not mean the fee paid in the crematorium or fee paid for the use of space in the cemetery. There are many other expenses in connection with funeral and if the deceased is follower of any particular religion, there are several religious practices and conventions pursuant to death in a family. All those are quite expensive. Therefore, we are of the view that it will be just, fair and equitable, under the head of 'Funeral Expenses', in the absence of evidence to the contrary for higher expenses, to award at least an amount of Rs. 25,000/".
27. Funeral Expenses: Though PW1 has not filed any documentary evidence regarding funeral expenses, but considering the facts and circumstances of the present case and the mandate of the above judgment, a sum of Rs.25,000/ is granted towards funeral expenses.
28. Loss of love and affection: Considering the facts and circumstances of the present case and the mandate of the above judgment, a sum of Rs.1,00,000/ is granted to petitioners towards loss and affection.
29. Loss of Estate:The petitioners are also entitled for loss of estate in respect of death of deceased. Accordingly, an amount of Rs.10,000/ is passed in favour of the petitioners towards loss of estate.
30. The total compensation is assessed as under : MACT No. 3931/16 Hari Lal & Anr. Vs. Kapil Dev & Anr. Page No. 12/ 19 S. No. Description Amount 1 Loss of Dependency Rs.3,50,700/ 2 Funeral Expenses Rs. 25,000/ 3 Loss of Love & Affection Rs.1,00,000/ 4 Loss of Estate Rs. 10,000/ 5 Medical Expenses & Ambulance Charges Rs. 48,322/ Total Rs.5,34,022/
31. Learned counsel for R2/Insurance Company has argued that petitioners have already received compensation from Group Personal Accident Insurance of deceased and said amount should be deducted from the compensation granted under Motor Vehicle Act. She has relied upon case law of 'Delhi Transport Corporation Vs. Suraj Bhan' (2011 ACJ 2294) wherein Hon'ble High Court of Delhi adjusted the compensation to the extent of amount received by injured under Group Personal Accident Policy. However, learned counsel for petitioners has argued that amount received by petitioners under group insurance from the employer of deceased is not liable to be deducted from the compensation to be received by the petitioners. In this regard, he has relied upon case laws of 'Jyothirmoy & Ors. Vs. Managing Director, BMTC and Anr.' (2017 ACJ 527) and 'Rajeshwari G. Bhuyar & Ors. Vs. Sindhu Travels & Anr.' (2017 ACJ 87) which were decided by Hon'ble High Court of Karnataka. Though counsel for petitioners has filed abovesaid case laws, but Hon'ble Supreme Court of India decided appeal 'The New India Assurance Co. Ltd. Vs. Mamatha & Ors.' (CA No. 3778/15 decided on 27.07.2016) in favour of insurer on the aspect of deduction of Group Personal Accident Claim Policy from compensation amount. In my view, argument of counsel for Insurance Company that amount already received by legal heirs of deceased under Group Personal Accident Insurance is MACT No. 3931/16 Hari Lal & Anr. Vs. Kapil Dev & Anr. Page No. 13/ 19 liable to be adjusted in the award amount is genuine. On 13.04.2017, petitioners filed their reply to the application under Order 18 Rule 17 CPC of Insurance Company wherein they have duly admitted that they have received a sum of Rs.3,62,000/ from M/s Birla Sunlife Insurance Company on account of personal accident insurance claim. Thus, petitioners are awarded a total amount of (Rs.5,34,022/ minus Rs.3,62,000/) Rs.1,72,022/ (Rupees One Lac Seventy Two Thousand & Twenty Two Only) which is to be apportioned equally between the petitioners.
RELIEF
32. I hereby award an amount of Rs.1,72,022/ (Rupees One Lac Seventy Two Thousand & Twenty Two Only) as compensation with interest @ 9% per annum, from the date of filing of claim petition till the date of realization of the amount, in favour of the petitioners and against the respondents on account of their liability being joint and several.
33. Liability: Learned counsel for respondent No. 2/Insurance Company has argued that deceased was traveling in the offending vehicle on hire or reward which is in contravention to terms and conditions of insurance policy and as such Insurance Company is not liable to pay any compensation. In this regard, she has relied upon the insurance policy Ex. R2W1/B and has argued that as per Section II (i) of the policy, Insurance Company is not liable for death of any person if the vehicle is used for hire or reward. She has also relied upon one circular dated 16.11.2009 of Insurance Regulatory and Development Authority which is Ex. R2W1/C and has argued that said circular also support her contention regarding death of any person if the vehicle is used for hire or reward. Learned counsel for Insurance Company has also relied upon case laws of 'Jayakumar Vs. Rajamma & Ors.' (2005 MACT No. 3931/16 Hari Lal & Anr. Vs. Kapil Dev & Anr. Page No. 14/ 19 ACJ 172); 'New India Assurance Co. Ltd. Vs. Naba Kumar Mondal & Anr.' (2005 (3) CHN 524); 'Branch Manager, Oriental Insurance Co. Ltd. Vs. Mohd. Yunus & Ors.' (Misc App. No. 118/03 decided by Hon'ble Patna High Court on 26.04.2010); 'New India Assurance Co. Ltd. Vs. Anil Kumar & Ors.' (2001 ACJ 127); 'State of Mysore Vs. Syed Ibrahim' (AIR 1967 1424) and 'New India Assurance Co. Ltd. Vs. Nathiben Chatrabhuj & Ors.' (AIR 1982 Guj. 116).
34. In the present case, deceased Sonia, one Praveen (who also died in the accident) and eyewitness PW2 Dhiraj were colleagues as they were working in WIPRO Ltd. and on the date of accident, they were coming from Agra in offending vehicle alongwith their friends. Offending vehicle was driven by respondent No. 1. Eyewitness PW2 Dhiraj has deposed during his cross examination that he and his wife boarded the offending vehicle after the same was taken by the deceased and that it was agreed between all of them who were boarding the offending vehicle that whatever, the expenditure of diesel/ petrol/ toll will fall on all the passengers and they would share the same. PW2 Dhiraj has also deposed during his crossexamination that Praveen was maintaining the records of all the expenses to be incurred to Agra and back and as such he cannot tell how much expenses were paid by Praveen. It is important to mention here that Praveen also died in the accident. Respondent No. 1 Kapil Dev (R1W1) has deposed that Praveen, who was traveling in his vehicle alongwith deceased, was known to him. Praveen requested him to take deceased in his vehicle and it was decided that all occupants will share the expenses. He has also deposed that since Praveen died in the accident, he had no occasion to even ask for expenses. Though respondent No. 1 has admitted in his crossexamination that he had got the fuel tank full one evening prior to accident, but due to the fact that Praveen died in the accident it could never be MACT No. 3931/16 Hari Lal & Anr. Vs. Kapil Dev & Anr. Page No. 15/ 19 proved that deceased was traveling on hire or reward. Only the testimony of deceased Sonia or Praveen could have proved the same, but they have died in the same accident. Court has to decide the contention of counsel for Insurance Company of hire or reward only on the basis of evidence and witnesses examined, but nothing came in testimony of eyewitness PW2 Dhiraj and respondent No. 1 which could prove the contention of Insurance Company that deceased was traveling in offending vehicle on hire or reward. In such circumstances, Insurance Company has not been able to prove that deceased was traveling in offending vehicle on hire or reward basis. Respondent No. 2, being insurer of offending vehicle, is liable to pay the compensation to petitioners and to indemnify the insured.
35. In view of the above discussion, respondent No. 2 is directed to deposit the award amount in the bank accounts of petitioners at State Bank of India, Saket Court Branch within a period of 30 days from today alongwith the interest @ 9% per annum, failing which interest @ 12% per annum shall be charged for the period of delay.
36. Share of petitioners in award amount: A sum of Rs.86,011/ each alongwith proportionate interest thereon, is awarded to the petitioners being parents of deceased. Award amount of both petitioners shall be immediately released to them.
37. Directions for the respondent No. 2: R2 is directed to file the compliance report of their having deposited the awarded amount with the State Bank of India, Saket Court Branch in this Tribunal within a period of 30 days from today.
MACT No. 3931/16 Hari Lal & Anr. Vs. Kapil Dev & Anr. Page No. 16/ 1938. Petitioners shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit Account to Branch Manager, state Bank of India, Saket Courts Complex Branch, New Delhi. Withdrawal from the aforesaid account shall be permitted to claimants/ petitioners after due verification and the Bank shall issue photo identity Card to claimants/petitioners to facilitate identity. No cheque book be issued to claimants/petitioners without the permission of this Court. Original pass Book shall be given to the claimants/ petitioners. On the request of claimants/petitioners, the Bank shall transfer the Savings Account to any other branch of State Bank of India, according to their convenience.
39. R3/Insurance Company shall intimate to the claimants/petitioners about it having deposited the cheques in favour of petitioners in terms of the award, at the address of the petitioners mentioned at the title of the award, so as to facilitate them to withdraw the same.
40. Copy of this Award be given to parties concerned free of cost and copy be also sent to Manager, SBI, Saket Court Branch, New Delhi for compliance.
41. FormIV of the Modified Claims Tribunal Agreed Procedure to be mentioned in the Award is as under:
1 Date of the accident 05.09.2015 2 Date of intimation of the accident by Not applicable as accident the Investigating Officer to the occurred out of Delhi. Even, Claims Tribunal. FIR was not registered.
3 Date of intimation of the accident by Not applicable as accident
the Investigating Officer to the occurred out of Delhi. Even,
Insurance Company. no FIR was registered.
4 Date of filing of Report under Not applicable as no FIR was
Section 173 Cr.P.C. before the registered.
MACT No. 3931/16 Hari Lal & Anr. Vs. Kapil Dev & Anr. Page No. 17/ 19
Metropolitan Magistrate.
5 Date of filing of Detailed Accident Not applicable as accident
Information Report (DAR) by the occurred out of Delhi and no Investigating Officer before Claims DAR has been filed. Tribunal.
6 Date of service of DAR on the Not applicable as accident
Insurance Company. occurred out of Delhi and no
DAR has been filed.
7 Date of service of DAR on the Not applicable as accident
claimant(s). occurred out of Delhi and no
DAR has been filed.
8 Whether DAR was complete in all Not applicable as accident
respects? occurred out of Delhi and no
DAR has been filed.
9 If not, state deficiencies in the DAR? Not applicable as accident
occurred out of Delhi and no
DAR has been filed.
10 Whether the police has verified the Not applicable as accident
documents filed with DAR? occurred out of Delhi and no
DAR has been filed.
11 Whether there was any delay or Not applicable as accident
deficiency on the part of the occurred out of Delhi and no
Investigating Officer? If so, whether DAR has been filed. any action/ direction warranted?
12 Date of appointment of the Not applicable as accident Designated Officer by the Insurance occurred out of Delhi and no Company. DAR has been filed.
13 Name, address and contact number Not applicable as accident of the Designated Officer of the occurred out of Delhi and no Insurance Company. DAR has been filed.
14 Whether the Designated Officer of Not applicable as accident
the Insurance Company submitted occurred out of Delhi and no
his report within 30 days of the DAR has been filed.
DAR?
15 Whether the Insurance Company Insurance Company denied
admitted the liability? If so, whether its liability.
the Designated Officer of the Insurance Company fairly MACT No. 3931/16 Hari Lal & Anr. Vs. Kapil Dev & Anr. Page No. 18/ 19 computed the compensation in accordance with law.
16 Whether there was any delay or Not applicable as accident deficiency on the part of the occurred out of Delhi and no Designated Officer of the Insurance DAR has been filed. Company? If so, whether any action/direction warranted?.
17 Date of response of the claimant(s) No legal offer was filed.
to the offer of the Insurance Company.
18 Date of the award. 13.04.2017.
19 Whether the award was passed with No. the consent of the parties?
20 Whether the claimant(s) examined No petitioners were not
at the time of passing of the award examined at the time of
to ascertain his/their financial passing of award, but their
condition? financial condition was asked
and according to their
financial condition and age,
award amount is directed to
be released immediately.
21 Whether the photographs, specimen Photo ICards and other
signatures, proof of residence and requisite information was particulars of bank account of the already on record.
injured/legal heirs of the deceased taken at the time of passing of the award?
22 Mode of disbursement of the award Award amount is directed to
amount to the claimant(s). released immediately.
23 Next Date for compliance of the 09.05.2017.
award.
Announced in open Court
Dated : 13.04.2017 (Madhu Jain)
POMACT02 (SE)Saket, New Delhi
13.04.2017
MACT No. 3931/16 Hari Lal & Anr. Vs. Kapil Dev & Anr. Page No. 19/ 19