Delhi District Court
Ms. Lajjawati vs Mr. Mohan Vashisth on 18 July, 2018
IN THE COURT OF MR. S. S. MALHOTRA: PO:MACT1 (NORTH):
ROHINI: DELHI
MACT No. 4815/16
FIR No.522/14
PS Swaroop Nagar
1. Ms. Lajjawati
W/o Late Suraj Pal
R/o H. no.64 (37/2), Gali no.17/18, BlockB,
Kaushik Enclave, Burari, Delhi.
2. Mr. Naresh Kumar
S/o Late Suraj Pal
R/o G10, SectorIV, DIZ Area,
Raja Bazar, Jain Mandir Road, New Delhi.
3. Mr. Raju
S/o Late Suraj Pal
R/o H. no.64 (37/2), Gali no.17/18, BlockB,
Kaushik Enclave, Burari, Delhi.
4. Mr. Vinod
S/o Late Suraj Pal
R/o H. no.64 (37/2), Gali no.17/18, BlockB,
Kaushik Enclave, Burari, Delhi.
....Petitioners
VERSUS
1. Mr. Mohan Vashisth
S/o Mr. Kailash Chand Vashisth
R/o B135, Gali no.2, BBlock,
Swaroop Vihar, Kadipur, Delhi.
2. Mr. Anil Kumar
S/o Mr. Raj Pal Sharma
R/o 3/C32, Gali no.2, Swaroop Vihar,
Kadipur, Delhi.
MACT no.4815/16 Lajjawati & ors. Vs. Mohan Vashisth & ors. Page 1 of 20
3. ICICI Lombard General Insurance Company Limited
ICICI Lombard House,
414, Veer Savarkar Marg,
Near Sidhi Vinayak Temple, Prabha Devi, Mumbai.
Also at:
5th Floor, Birla Tower,
Bara Khamba Road, Cannaught Place,
New Delhi.
....Respondents
DATE OF INSTITUTION : 30.01.2015
JUDGMENT RESERVED ON : 17.07.2018
DATE OF JUDGMENT : 18.07.2018
FORM - IV A
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN DEATH CASES TO BE INCORPORATED IN THE AWARD
1. Date of accident: 20.10.2014.
2. Name of deceased: Suraj Pal
3. Age of the deceased: 65 years.
4. Occupation of the deceased: labourer.
5. Income of the deceased: Rs.12,000/ per month.
6. Name, age and relationship of legal representatives of deceased:
S.No. Name Age Relation
(i) Ms. Lajjawati 62 years Wife
(ii) Mr. Naresh Kumar 44 years Son
MACT no.4815/16 Lajjawati & ors. Vs. Mohan Vashisth & ors. Page 2 of 20
(iii) Mr. Raju 43 years Son
(iv) Mr. Vinod 38 years Son
Computation of Compensation
S.No. Heads Awarded by the Claims
Tribunal
7. Income of the deceased (A) 8,632/ per month (as per
minimum wages of unskilled
8. AddFuture Prospects (B) Nil
9. LessPersonal expenses of the deceased 5,754.66 (2/3rd as per judgment (C) of Keith Rowe Vs. Prashant Sagar & ors. MAC appeal no.601 of 2007 decided on 15.01.2010). As neither petitioner nor her married sons were dependent upon the deceased.
10. Monthly loss of dependency/estate 2,877.34 { (A+B) - C =D}
11. Annual loss of dependency/estate 34,528.08 (Dx12) 12. Multiplier (E) 5
13. Total loss of dependency (Dx12xE = F) 1,72,640/ (loss of estate)
14. Medical Expenses (G) Nil (All medical bills have been reimbursed by the employer of the wife of deceased.
15. Compensation for loss of love and As mentioned in column no.13 affection (H)
16. Compensation for loss of consortium 40,000/ (I)
17. Compensation for loss of estate (J) Nil
18. Compensation towards funeral 15,000/ expenses (K) MACT no.4815/16 Lajjawati & ors. Vs. Mohan Vashisth & ors. Page 3 of 20
19. TOTAL COMPENSATION 2,27,640/ (F+G+H+I+J+K =L)
20. RATE OF INTEREST AWARDED 9% per annum 21 Interest amount up to the date of 73,413.90 (2,27,640 x 9/100 x compliance (M) 43/12)
22. Total amount including interest (L+M) 3,01,053.90 (rounded as 3,01,000/)
23. Award amount released 10% to all the petitioners
24. Award amount kept in FDRs 90% of all the petitioners
25. Mode of disbursement of the award Phased manner amount to the claimant (s) (Clause 29)
26. Next date for compliance of the award. 30.08.2018 (Clause 31) FORM - V COMPLIANCE OF THE PROVISIONS OF THE MODIFIED CLAIMS TRIBUNAL AGREED PROCEXDURE TO BE MENTIONED IN THE AWARD
1. Date of the accident 20.10.2014
2. Date of intimation of the accident by the investigating 30.01.2015 officer to the Claims Tribunal (Clause 2)
3. Date of intimation of the accident by the investigating do officer to the insurance company. (Clause 2)
4. Date of filing of Report under section 173 Cr.P.C. Not known before the Metropolitan Magistrate (Clause 10)
5. Date of filing of Detailed Accident Information Report 30.01.2015 (DAR) by the investigating Officer before Claims Tribunal (Clause 10)
6. Date of Service of DAR on the Insurance Company do (Clause 11)
7. Date of service of DAR on the claimant(s). (Clause 11) do
8. Whether DAR was complete in all respects? (Clause 16) Yes MACT no.4815/16 Lajjawati & ors. Vs. Mohan Vashisth & ors. Page 4 of 20
9. If not, whether deficiencies in the DAR removed later No on?
10. Whether the police has verified the documents filed Yes with DAR? (Clause 4)
11. Whether there was any delay or deficiency on the part Yes. Directions are of the Investigating Officer? If so, whether any being issued as per action/direction warranted? directions of Hon'ble High Court to all DCPs/CP, Delhi.
12. Date of appointment of the Designated Officer by the Not known insurance Company. (Clause 20)
13. Name, address and contact number of the Designated do Officer of the Insurance Company. (Clause 20)
14. Whether the designated Officer of the Insurance No Company submitted his report within 30 days of the DAR? (Clause 20)
15. Whether the insurance company admitted the liability? No If so, whether the Designated Officer of the insurance company fairly computed the compensation in accordance with law. (Clause 23)
16. Whether there was any delay or deficiency on the part N/A of the Designated Officer of the Insurance Company? If so, whether any action/direction warranted?
17. Date of response of the claimant (s) to the offer of the N/A Insurance Company. (Clause 24)
18. Date of the Award 18.07.2018
19. Whether the award was passed with the consent of the No parties? (Clause 22)
20. Whether the claimant(s) were directed to open saving Yes bank account(s) near their place of residence? (Clause
18)
21. Date of order by which claimant(s) were directed to 07.03.2018 open saving bank account (s) near his place of residence MACT no.4815/16 Lajjawati & ors. Vs. Mohan Vashisth & ors. Page 5 of 20 and produce PAN Card and Aadhar Card and the direction to the bank not issue any cheque book/debit card to the claimant(s) and make an endorsement to this effect on the passbook(s). (Clause 18)
22. Date on which the claimant (s) produced the passbook 05.06.2018 of their saving bank account near the place of their residence along with the endorsement, PAN Card and Aadhar Card? (Clause 18)
23. Permanent Residential Address of the Claimant(s) Petitioners no.1,3 and (Clause 27) 4 are R/o H. no.64 (37/2), Gali no.17/18, BlockB, Kaushik Enclave, Burari, Delhi.
Petitioner no.2 is R/o G10, SectorIV, DIZ Area, Raja Bazar, Jain Mandir Road, New Delhi.
24. Details of saving bank account(s) of the claimant(s) and Petitioner no.1, 3 and the address of the bank with IFSC Code (Clause 27) 4 have their saving bank accounts with Syndicate Bank, Burari Branch having nos.
P191952250000991 P391952250001010 P491952250001005 Petitioner no.2 has a saving bank account with United Bank of India, Connaught Circus Branch, Delhi having no.0276012510510.
25. Whether the claimant(s) saving bank account(s) is near Yes MACT no.4815/16 Lajjawati & ors. Vs. Mohan Vashisth & ors. Page 6 of 20 his/her place of residence? (Clause 27)
26. Whether the claimant(s) were examined at the time of Yes passing of the award.
AWARD
1. This is a claim petition U/s 166 read with Section 140 of The Motor Vehicle's Act, 1988, filed by petitioners. Coming to the facts of the case, it is stated that on 20.10.2014 deceased Suraj Pal was going from Amrit Vihar to Kaushik Enclave on foot and at about 08:30 am when he reached near Amrit Vihar Bus Stand in the meanwhile one scooty bearing no.DL8SBK 9909 being driven by its driver at a very high speed, rashly and negligently came from Nathu Pura side i.e. from opposite direction and struck against the deceased with great force. Due to forceful impact, said Suraj Pal fell down on road and sustained grievous head injuries. He was removed to Babu Jagjivan Ram Memorial Hospital, Jahangir Puri, Delhi and thereafter he was referred to B. L. Kapoor Memorial Hospital, Pusa Road, New Delhi where he remained admitted from 20.10.2014 to 06.11.2014 and expired on 11.11.2014.
2. Contending that said accident took place, due to rash and negligent driving of vehicle bearing no. DL8SBK9909 by Mr. Mohan Vashisht (respondent no.1), which was owned by Mr. Anil Kumar (respondent no.2) and insured with ICICI Lombard General Insurance Company Limited (respondent no.3), the petitioners have filed the present claim thereby claiming a sum of Rs.15,00,000/ (Fifteen lacs) alongwith interest @ 12% per annum from respondents from the date of filing of claim petition till its realization. A sum of Rs.50,000/ as interim award is also prayed for.
MACT no.4815/16 Lajjawati & ors. Vs. Mohan Vashisth & ors. Page 7 of 20
3. Respondents have contested claim by filing their separate written statements. Respondents no.1 and 2 have filed their joint written statement stating therein that no accident has been caused with the alleged offending vehicle on the date, time and place and the same has been falsely implicated by the police.
4. Respondent no.3 has filed its separate written statement stating therein that the offending vehicle was insured with it from 29.05.2014 to 28.05.2015 and the answering respondent is not liable to pay any compensation as the driver was driving the vehicle without driving licence as the respondent no.1 was chargesheeted under Sections 279/304A of IPC read with Section 3/181 of Motor Vehicles Act and even kalandra was also filed against the owner under Section 5/180 of Motor Vehicles Act. It is further stated that the offending vehicle was otherwise not involved in the accident as is also clear from the MLC wherein it was initially recorded by the treating doctors that there is a history of assault and thereafter the said observation of the doctors was crossed and it was mentioned that there is a history of RTA, the said cutting on the MLC clearly shows that the deceased suffered alleged injuries due to some assault on him which was later on converted to an accident.
5. After completion of the proceedings, following issues were framed on 16.02.2015:
(i) Whether respondents are not liable to pay any compensation to the petitioners, as the driver of offending vehicle i.e. respondent no.1 having no valid driving licence at the time of accident?
(ii) Whether petitioners are entitled to compensation as prayed for?MACT no.4815/16 Lajjawati & ors. Vs. Mohan Vashisth & ors. Page 8 of 20
(iii) Relief.
6. In order to prove their claim, petitioners have examined petitioner no.1 Ms. Lajjawati as PW1. Respondent no.1 has examined Mr. Dinesh Dubey as R1W1 and himself as R1W2. Respondent no.3 has examined ASI Vishnu Singh as R3W1 and Mr. Afaq Sherwani as R3W2. Court has also examined Mr. Rajdeen as CW1 stated to be the eyewitness of the case.
7. I have heard ld. counsels appearing on behalf of petitioners and respondent no.3. Issue no.1 is with respect to liability of respondents whereas issue no.2 is about entitlement, therefore issue no.2 is being taken up first. My findings issuewise are as under: ISSUE No.2: Whether petitioners are entitled to compensation as prayed for?
8. The onus to prove this issue was upon the petitioners. Prior to coming to the aspect of entitlement, the petitioners have to prove first that the accident due to which the deceased expired had been caused due to rash and negligent driving of the respondent no.1. To prove this fact petitioners examined petitioner no.1 Ms. Lajjawati as PW1 and in her affidavit (Ex.PW1/A), she reiterated the facts of the claim petition.
9. R1W1 Mr. Dinesh Dubey stated that he is known to respondent no.1 being son of his sisterinlaw (sali) and on 18.10.2014 he came to his house and returned on 21.10.2014 and during those days he remained with him. In the crossexamination he stated that he has no written evidence to verify that respondent no.1 remained with him from 18.10.2014 to 21.10.2014.
10. R1W2 Mr. Mohan Vashisht deposed that on 20.10.2014 he had gone to the house of his aunt (mausi) at Kailash Nagar, Virandavan from 18.10.2014 to MACT no.4815/16 Lajjawati & ors. Vs. Mohan Vashisth & ors. Page 9 of 20 21.10.2014 and he did not cause any accident on 20.10.2014 and he has been falsely implicated in this case. In the crossexamination he stated that he is involved in a case of motor accident bearing FIR no.522/14 PS Swaroop Nagar, Delhi and he was arrested in that case. He further stated that the said case is still going on and he did not file any appeal etc. against the said case and he did not lodge any complaint to higher officers of police against IO/SHO for his false implication. He further stated that he did not approach High Court of Delhi seeking quashing of FIR and he was not having any driving licence on the date of accident.
11. R3W1 ASI Vishnu Singh has deposed that on 20.10.2014 he was posted in MACT Cell/District North West, Delhi and he investigated the case FIR no.522/14 being second IO and despite service of notice by him to the owner and driver during investigation, no driving licence was produced either by driver or by owner.
12. Court examined eyewitness of the case Mr. Rajdeen as CW1 who deposed that he has not seen any vehicular accident occurred on 20.10.2014.
13. From the testimony of R1W1 Mr. Dinesh Dubey it appears that he is trying to save respondent no.1 being his uncle (mausa) as he has no written evidence to verify that respondent no.1 remained with him from 18.10.2014 to 21.10.2014.
14. R1W2 Mr. Mohan Vashisht in the crossexamination stated that he is involved in a case of motor accident bearing FIR no.522/14 PS Swaroop Nagar, Delhi although he was arrested in that case. He further stated that the said case is still going on and he did not file any appeal etc. against the said case and he did not lodge any complaint to higher officers of police MACT no.4815/16 Lajjawati & ors. Vs. Mohan Vashisth & ors. Page 10 of 20 against IO/SHO for his false implication. He further stated that he did not approach High Court of Delhi seeking quashing of FIR and he was not having any driving licence on the date of accident. I have perused the record. IO had given a notice under Section 133 of Motor Vehicles Act to the registered owner who is respondent no.2 in this case and in his reply, he submits that the vehicle at the time of accident was being driven by respondent no.1. When registered owner of vehicle states that it was being driven by respondent no.1 then the onus to prove the said fact shifts upon the respondent no.1 that he was not driving the vehicle or atleast was not driving in rash and negligent manner. Since he was not in a possession of vehicle then the next question arisen as to why respondent no.2 would be making statement against him. Although he has brought one of his uncle but surprisingly he has not brought registered owner to prove that he was not in possession of vehicle or he was out of Delhi on that day and he was not driving the vehicle in rash and negligent manner. Therefore the best evidence is withheld by the respondent no.1 to prove his innocence. Therefore apparently it appears to the court that respondent no.1 or his uncle R1W1 cannot be relied upon safely with respect to accident.
15. PW1 has been duly crossexamined but the testimony of the said PW with respect to accident and rash & negligent driving of the offending vehicle by respondent no.1 could not be impeached. Even otherwise the proof of negligence while disposing off a claim under MACT, is not that strict as it is under Section 279/304A of IPC. It is a matter of record that there is no evidence at all to show that victim was at fault, in any way. The fact that Suraj Pal died in that accident is also supported by his postmortem report MACT no.4815/16 Lajjawati & ors. Vs. Mohan Vashisth & ors. Page 11 of 20 on the dead body of victim. After investigation, police indicted respondent no.1 for offences punishable under Sections 279/304A of IPC. The FIR has been registered against respondent no.1 and he has not filed any complaint against the police before any higher authority against his alleged false implication, if any. The fact of accident and the accused is facing the trial as an accused is also admitted. Considering all these facts, it stands proved that accident in question was caused on 20.10.2014 due to rash or negligent driving of vehicle no.DL8SK9909 by respondent no.1 thereby causing death of Suraj Pal.
16. It is not disputed during arguments that petitioners are LR's of victim.
Moreover, this fact is established by statement of Ms. Lajjawati (PW1) wife of victim. Being LR's of deceased, petitioners are well within their rights to claim compensation from respondents but they cannot be treated as dependent upon the deceased as all the three sons of the deceased, aged about 44, 43, and 38 years respectively, were married at the time of accident and the wife of the deceased (petitioner no.1) was getting pension after her retirement.
17. Now coming to the extent of compensation. Admittedly, the petitioner no.1 is getting pension from her employer after her retirement. However even if she is not entitled for loss on account of dependency but she is definitely entitled for compensation towards loss of estate. The law in this regard is well settled by the judgment of Karnataka High Court in the case of A. Manavalagan Vs. A. Krishnamurthy and others, I (2005) ACC 304/2005 ACJ 1992 wherein it was held as under:
"The law contemplates two sorts of damages: the one is the pecuniary loss to the estate of the deceased resulting from the accident; the other is the MACT no.4815/16 Lajjawati & ors. Vs. Mohan Vashisth & ors. Page 12 of 20 pecuniary loss sustained by the members of his family through his death. The action for the latter is brought by the legal representatives, not for the estate, but as trustees for the relatives beneficially entitled; while the damages for the loss caused to the estate are claimed on behalf of the estate and when recovered, forms part of the assets of the estate. An illustration may clarify the position X is the income of the estate of the deceased, Y is the yearly expenditure incurred by him on his dependents (we will ignore the other expenditure incurred by him). XY, i.e., Z is the amount he saves every year. The capitalised value of the income spend on the dependents, subject to relevant deductions, is the pecuniary loss sustained by the members of his family though his death. The capitalised value of his income, subject to relevant deductions, would be the loss caused to the estate by his death. If the claimants under both the heads are the same, and if they get compensation for the entire loss caused to the estate, they cannot claim again under the head of personal loss the capitalised income that might have been spent on them if the deceased were alive. Conversely, if they got compensation under Section 1, representing the amount that the deceased would have spent on them, if alive, to that extent there should be deduction in their claim under Section 2 of the Act in respect of compensation for the loss caused to the estate. To put it differently, if under Section 1 they got capitalised value of Y; under Section 2 they could get only the capitalised value of Z, for the capitalised value of Y+Z, i.e. X, would be the capitalised value of his entire income."
18. This law was discussed in Keith Rowe Vs. Prashant Sagar & ors. MAC appeal no.601 of 2007 decided on 15.01.2010, the Hon'ble High Court has summarised the law with respect to such cases where LRs is/are not financially dependent upon the deceased as under:
"(i) The law contemplates two categories of damages on the death of a person. The first is the pecuniary loss sustained by the dependent members of his family as a result of such death. The second is the loss caused to the estate of the deceased as a result of such death. In the first category, the action is brought by the legal representatives, as trustees for the dependents beneficially entitled. In the second category, the action is brought by the legal representatives, on behalf of the estate of the deceased and the compensation, when recovered, forms part of the assets of the MACT no.4815/16 Lajjawati & ors. Vs. Mohan Vashisth & ors. Page 13 of 20 estate. In the first category of cases, the Tribunal in exercise of power under Section 168 of the Act, can specify the persons to whom compensation should be paid and also specify how it should be distributed.
(ii) Where the claim is by the dependents, the basis for award of compensation is the loss of dependency, that is loss of what was contributed by the deceased to such claimants. A conventional amount is awarded towards loss of expectation of life, under the head of loss to estate.
(iii) Where the claim by the legal representatives of the deceased who were not dependents of the deceased, then the basis for award of compensation is the loss to the estate, that is the loss of savings by the deceased. A conventional sum for loss of expectation of life, is added.
(iv) The procedure for determination of loss to estate is broadly the same as the procedure for determination of the loss of dependency. Both involve ascertaining the multiplicand and capitalising it by multiplying it by an appropriate multiplier. But, the significant difference is in the figure arrived at as multiplicand in cases where the claimants who are dependents claim loss of dependency, and in cases where the claimants who are not dependents, claim loss to estate. The annual contribution to the family constitutes the multiplicand in the case of loss of dependency, whereas the annual savings of the deceased becomes the multiplicand in the case of loss to estate. The method of selection of multiplier is however the same in both cases."
19. Now coming to the multiplier aspect. There are three petitioners in this matter as it has already been discussed herein above, petitioners are entitled to compensation on account of loss of estate only. In view of the findings in Keith Rowe Vs. Prashant Sagar & ors. MAC appeal no.601 of 2007 decided on 15.01.2010, it has also been settled that multiplier would however remain same and it is only the head under which the petitioner would likely to succeed would change.
20. Now coming to the calculation part of compensation. Deceased was 65 years of age at the time of accident. PW1 deposed that deceased was MACT no.4815/16 Lajjawati & ors. Vs. Mohan Vashisth & ors. Page 14 of 20 working as a labourer and was earning Rs.12,000/ per month but there is no evidence except her deposition in this regard. Therefore to calculate the extent of compensation with respect to his loss of estate, minimum wages of an unskilled at the prevalent time has to be taken which was Rs.8,632/ per month at that time. As per the judgment in the case of National Insurance Company Limited Vs. Pranay Sethi and others of Hon'ble Supreme Court, the petitioner is not entitled for future prospects as the deceased was more than 60 years of age.
21. As the deceased was a married, having a family, his saving would be hardly 1/3rd as it was held in Keith Rowe Vs. Prashant Sagar & ors. MAC appeal no.601 of 2007 decided on 15.01.2010, by the Hon'ble Court which has given various illustrations and illustration no.(v) reads as under:
"(iv) If the deceased is survived by an educated employed wife earning an amount almost equal to that of her husband and if each was maintaining a separate establishment, the question of 'loss of dependency' may not arise.
Each will be spending from his/her earning towards his living and personal expenses. Even if both pool their income and spend from the common income pool, the position will be the same. In such a case the amount spent for personal and living expenses by each spouse from his/her income will be comparatively higher, that is threefourth of his/her income. Each would be saving only the balance, that is one fourth (which may be pooled or maintained separately). If the saving is taken as onefourth (that is 25%), the loss to the estate would be Rs.2250/ per month or Rs.27000/ per annum, By adopting the multiplier of 14, the loss to estate will be Rs.3,78,000/.
Note: The position would be different if the husband and wife, were both earning, and living together under a common roof, sharing the expenses. As stated in Burgess V. Florence Nightingale Hospital (1955(1) Q.B. 349), 'when a husband and wife, with separate incomes are living together and sharing their expenses, and in consequence of that fact, their joint living expenses are less than twice the expenses of each one living separately, then each, by the fact of sharing, is conferring a benefit on the other'. This MACT no.4815/16 Lajjawati & ors. Vs. Mohan Vashisth & ors. Page 15 of 20 results in a higher savings, say, onethird of the income; In addition each spouse loses the benefit of services rendered by the other in managing the household, which can be evaluated at say Rs. 1,000/ per month or Rs. 12,000/ per annum). In such a situation, the claimant (surviving spouse) will be entitled to compensation both under the head of loss of dependency (for loss of services rendered in managing the household) and loss to estate (savings to an extent of one third of the income that is Rs. 3,000/ per month or Rs. 36000/ per annum). Therefore, the loss of dependency would be 12000x14=168,000/ and loss to estate would be 36000x14=504,000/. In all Rs. 6,72,000/ will be the compensation." (This illustration was given by the court taking salary/income of deceased as Rs.1,000/ per month).
22. It is worth observing that the explanation cited above was based on the monthly income of deceased as Rs.9,000/.
23. Counting in this way, loss of estate qua the petitioners comes to Rs.5,17,920/ (8,632 x 12 x 5). 1/3rd for the said amount is Rs.1,72,640/. This amount of Rs.1,72,640/ would have form part of the estate of the deceased and is allowed to the petitioners, as loss of estate.
24. Apart from amount mentioned above, petitioners are granted a sum of Rs.15,000/ for funeral expenses and Rs.15,000/ for loss of estate. Petitioner no. 1 (widow) is separately granted a sum of Rs.40,000/ for loss of consortium, making a total sum of Rs.2,27,640/ detail of which is given as under: i. Loss of Estate Rs. 1,72,640/ ii. Funeral expenses Rs. 15,000/ iii. Loss of consortium to widow Rs. 40,000/ Total Rs. 2,27,640/
25. This issue is decided in favour of the petitioners and against the MACT no.4815/16 Lajjawati & ors. Vs. Mohan Vashisth & ors. Page 16 of 20 respondents by holding that petitioners are entitled to compensation from respondents.
ISSUE No.1: Whether respondents are not liable to pay any compensation to the petitioners, as the driver of offending vehicle i.e. respondent no.1 having no valid driving licence at the time of accident?
26. Now coming to the aspect as to who is liable to pay the compensation. It has already been held that the deceased had expired due to rash and negligent driving of respondent no.1. He is primarily liable to make payment. However, the petitioners have made the respondent no.3 (insurance company) as one of the party seeking direction to respondent no.3 that it be directed to pay the compensation to the petitioners. It is not in dispute that the offending vehicle was insured with the respondent no.3 on the date of accident but it is contended by counsel for respondent no.3 that the driver was driving the vehicle without driving licence as the respondent no.1 was chargesheeted under Sections 279/304A of IPC and Section 3/181 of Motor Vehicles Act and even kalandra was also filed against the owner under Section 5/180 of Motor Vehicles Act. The said fact is also admitted by respondent no.1 in his crossexamination that at the time of accident he was not having driving licence. Hence the said contention of counsel for respondent no.3 is well found.
27. The other contention of counsel for respondent no.3 is that in the MLC it was initially recorded by the treating doctors that there is a history of assault and thereafter the said observation of the doctors was crossed and the said cutting on the MLC clearly shows that the deceased suffered alleged injuries due to assault on him which was later on converted to an MACT no.4815/16 Lajjawati & ors. Vs. Mohan Vashisth & ors. Page 17 of 20 accident. I have perused the MLC of deceased. The contention of the counsel for respondent no.3 is well found to the extent that in the MLC it was recorded by the treating doctors that there is a history of assault and thereafter the said observation of the doctors was crossed. There is initial of doctor concerned on the said cutting. It might be possible that the doctor concerned had inadvertently mentioned the said remarks on the MLC of deceased and when he realized his mistake he crossed the said observation. Hence the said contention of the counsel for respondent no.3 is not tenable.
28. It is not in dispute that offending vehicle was duly insured with respondent no.3. Same is thus primarily liable to pay amount of compensation to petitioners but for all these reasons as explained herein before respondent no.3 is held to be entitled to recover the amount of compensation from insured/owner/driver but after making payment to petitioners. Accordingly, recovery rights are granted in favour of respondent no.3 against respondents no.1 and 2.
29. This issue is therefore decided in favour of the petitioners and against respondents by holding that petitioners are entitled for compensation from respondent no.3 who in turn has a right to recover the same from respondents no.1 and 2 jointly and severally after making payment to the petitioners.
ISSUE NO. 3 (RELIEF)
30. Petition in hands is allowed. Respondent no.3 is directed to pay Rs.2,27,640/ (Rs.3,01,000/ alongwith interest upto the date of compliance) to the petitioners as compensation in this case, within 30 days from today, along with interest @ 9% p.a. from the date of filing of DAR MACT no.4815/16 Lajjawati & ors. Vs. Mohan Vashisth & ors. Page 18 of 20 i.e. 30.01.2015 till realization of amount. Amount of interim compensation (if any) be deducted from this amount.
31. On 05.06.2018, petitioners gave statement about disbursement of amount of compensation.
32. Considering circumstances of petitioners and after consulting ld. counsel representing them, it is directed that 60% of total amount of compensation be given to petitioner no.1 i.e. widow, 10% each be given to petitioners no.2, 3 and 4.
33. 90% of the amount of compensation coming to the share of petitioners no.1, 2, 3 and 4 be invested in FDRs in any nationalized bank in their names be given to them by way of monthly FDRs/installments of Rs.10,000/ to be directly credited in their account alongwith interest accrued thereon. Remaining 10% of amount of compensation be disbursed to them by way of transferring the same in their saving bank account that too in terms of modified directions and where from the petitioners would be allowed to withdraw the same through withdrawal slip only and by no other mode/modes i.e. ATM/ debit card/credit card/letter/NEFT/RTGS etc.
34. The salient features as prescribed in the judgment in Rajesh Tyagi Vs. Ramesh Chandra Gupta FAO No. 842/2009 and MAC. App. No. 422/2009 decided on 07.11.2014 are to be applied:
(i) The fixed deposit be renewed automatically till the period prescribed by the Court.
(ii) The interest on the fixed deposit be paid monthly.
(iii) The monthly interest be credited automatically in the saving account of the claimant.MACT no.4815/16 Lajjawati & ors. Vs. Mohan Vashisth & ors. Page 19 of 20
(iv) Original fixed deposit receipt be retained by the bank in safe custody. However, the original passbook shall be given to the claimant along with the photocopy of the FDR.
(v) The original fixed deposit receipt be handed over to the claimant at the end of the fixed deposit period.
(vi) Photo identity card shall be issued to the claimant and the withdrawal shall be permitted only after due verification by the Bank of the identity card of the claimant.
(vii) No cheque book/ATM/debit card/credit card shall be issued to the claimant without permission of the Court.
(viii) No loan, advance or withdrawal or preencashment of FD amount shall be allowed on the fixed deposit without permission of the Court.
35. Respondent no.3 is directed to deposit entire amount of compensation with this tribunal, within 30 days from today, with advance notice to petitioners.
File be consigned to record room. SUKHVIR Digitally signed by
SUKHVIR SINGH
SINGH MALHOTRA
MALHOTRA Date: 2018.07.18
16:30:42 +0100
ANNOUNCED IN THE OPEN (S. S. MALHOTRA)
COURT ON 18.07.2018 PO, MACT NORTH, ROHINI,
DELHI
MACT no.4815/16 Lajjawati & ors. Vs. Mohan Vashisth & ors. Page 20 of 20