Delhi District Court
Srishthi Saini vs . Rakesh Verma & Ors. on 23 October, 2017
Srishthi Saini vs. Rakesh Verma & ors.
IN THE COURT OF SH. PAWAN KUMAR JAIN,
JUDGE, MACT-1 (CENTRAL), DELHI.
Suit No. 223/2011
MACT No. 357379/16
Unique Case ID No. DLCT01-000522-2007
1. Srishthi Saini
D/o Sh. B. K. Saini
R/o A-15/14, Sector-71,
Noida, U.P.
Through her natural guardian/mother/next friend
Mrs. Seema Saini
........Petitioner
VERSUS
1. Sh. Rakesh Verma
S/o Late Sh. D. M. Verma
Partner of M/s Jupitar Travels
Khasra No. 432, Siras Pur,
G.T. Karnal Road
New Delhi.
...........Respondent No.1
(Owner)
2. The Oriental Insurance Company Limited Registered Office at:
Oriental House A-25/27, Asaf Ali Road, New Delhi.
` ...........Respondent No.2
(Insurer)
MACT No. 357379/16 (Old Suit No. 223/11) Page No. 1 of 26
Srishthi Saini vs. Rakesh Verma & ors.
3. Sh. Kamla Singh S/o Sh. Lal Chand R/o Kosi Khurd P.S. Manguri District Mathura, UP.
...........Respondent No.3
(Driver)
Date of filing of Claim Petition : 10.10.2007
Arguments heard on : 06.10.2017
Date of passing of Award : 17.10.2017
Present: Mr. I. A. Rahmani, Advocate, counsel for
petitioner
Mr. R.C.Mahajan, Advocate, counsel for respondent No.2 Respondent No.1 & 3 are ex-parate AWARD:
1. This claim petition has been preferred by the petitioner under Section 166 & 140 of the Motor Vehicle Act, 1988 (in short MV Act) claiming compensation of ` 12 lac in respect of injuries caused to the minor daughter of claimant in a motor vehicular accident that had taken place on August 25, 2007.
2. Though the accident had not taken place within the jurisdiction of this Tribunal, yet the petition has been preferred before this Tribunal as the office of insurance MACT No. 357379/16 (Old Suit No. 223/11) Page No. 2 of 26 Srishthi Saini vs. Rakesh Verma & ors.
company (respondent No.2) is situated within the jurisdiction of this Tribunal and owner of offending vehicle (respondent No.1) is also residing in Delhi.
3. Facts in brief as stated in the petition are that on August 25, 2007, Srishthi, minor daughter of claimant (PW1) alongwith son of claimant went to attend noon class in Central School, Sector-24, Noida, UP and when both children were alighting from the rickshaw, offending vehicle bearing registration No. DL-1LG-7516 came from front side at high speed in a rash and negligent manner and hit one Tannu Aggarwal and her daughter Srishthi, consequently Tannu Aggarwal fell down far away on the road whereas daughter of claimant was dragged by the offending vehicle about 10-15 meters. Due to said accident, daughter of claimant sustained grievous injuries. Accordingly, she was got admitted in Prakash Hospital, Noida. In this regard, an FIR 480/2007 PS Sector-24, Noida for the offence punishable under Section 279/337/338 IPC was got recorded.
(i) It was alleged that the offending vehicle was being driven by respondent No.3 and respondent No.1 was the registered owner of said vehicle whereas same was insured with respondent No.2.
(ii) Petition was contested by respondent No.1 & 2 by filing their separate written statements.
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(iii) Respondent No. 1 in his written statement denied all the averments made by claimant except that he was the owner of said vehicle.
(iv) Respondent no. 2 fairly admitted that the offending vehicle was duly insured with it, but took the plea that the driver of offending vehicle was not holding any proper and valid licence at the time of accident.
4. On the basis of pleadings of parties, vide order dated March 12, 2012, following issues were framed:-
(i) Whether the petitioner had suffered grievous injuries in road traffic accident on 25.08.2007 within the jurisdiction of PS Sector-24, Noida, UP due to rash and negligence driving of the vehicle bearing registration No. DL-1LG-7516 by respondent No.1?
(ii) Whether the petitioner is entitled to compensation, if so, to what amount and from whom?
(iii) Relief.
5. In support of his claim petition, petitioner examined following witnesses:
MACT No. 357379/16 (Old Suit No. 223/11) Page No. 4 of 26 Srishthi Saini vs. Rakesh Verma & ors.
PW1 Mrs. Seema Saini, claimant/mother of injured PW2 Dr. K.K.Jha, RMO, proved medical record of injured PW3 Dr. Aruna, Sr. Resident Officer, proved medical record of injured
6. In rebuttal, respondent No.2 examined following witnesses:
R2W1 Mr. Raj Kumar Sharma from ARTO Office Mathura, UP.
R2W2 Mr. Ravi Karan Singh, Junior Assistant ARTO Office, Mathura, UP.
R2W3 Mr. Niket Anand, AO Oriental Insurance Company
(i) Respondent No.1 is proceeded ex-parate vide order dated June 7, 2010 whereas respondent No. 3 is processed ex-parate vide order dated March 12, 2012.
7. On completion of evidence led by both the parties, statement of victim Ms. Sristhi Saini was recorded on September 18, 2017 regarding financial status in terms of clause 26 of Rajesh Tyagi & others Vs Jaibir Singh & others, FAO No. 842 of 2003 decided by Hon`ble High Court of Delhi on December 12, 2014.
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8. I have heard arguments addressed on behalf of both parties, perused the record carefully and gave my thoughtful consideration to their contentions.
9. My issue-wise findings are as under:-
Issue No. 1:
Whether the petitioner had suffered grievous injuries in road traffic accident on 25.08.2007 within the jurisdiction of PS Sector-24, Noida, UP due to rash and negligence driving of the vehicle bearing registration No. DL-1LG-7516 by respondent No.1?
FINDING:-
10. Though counsel appearing for insurance company did not raise any contention qua rashness and negligence on the part of respondent No.3, yet I deem it appropriate to deal with the aspect of rashness and negligence.
(i) PW1 in her examination-in-chief categorically deposed that on August 25, 2007, her daughter and son left for Central School to attend noon class and when they were alighting from the rickshaw, offending vehicle bearing registration No. DL-1LG-7516 came from front side at high speed in a rash and negligent manner and hit one Tannu Aggarwal and her daughter. Tannu Aggarwal fell at some MACT No. 357379/16 (Old Suit No. 223/11) Page No. 6 of 26 Srishthi Saini vs. Rakesh Verma & ors.
distance whereas her daughter was dragged by offending vehicle upto 10-15 meters, consequently she sustained multiple grievous injuries. In this regard, an FIR Ex. PW1/A was also got recorded.
(ii) No doubt, at the time of accident, PW1 was not present at the spot and this fact is admitted by PW1 in her cross-examination, but she also deposed that the number of offending vehicle was given to her by her son in whose presence, the accident had taken place. Admittedly, PW1 is the mother of injured and injured was accompanied with her brother at the time of accident, thus there is every possibility that the facts of the accident were told to her by her kids. Moreover, during cross-examination even no suggestion was put to the witness that the accident had not taken place due to rash and negligence of offending vehicle.
(iii) In this regard, I deem it appropriate to refer some of the pronouncements of the Apex Court, various High Courts on the point of standard of proof required to prove negligence at the time of deciding just compensation, same are reproduced as under:-
In Bimla Devi and Ors. V. Himachal Road Transport Corporation and Ors. (2009) 13 SC 530, it was held that in a petition u/s 166 of the Motor Vehicles Act, 1988 the Claim Tribunal has to decide the negligence on the touchstone of preponderance of probability and holistic view is to be taken while dealing with the Claim Petition. In New India Assurance Co. Ltd. V. Sakshi Bhutani & ors, MAC APP. 550/2011 decided MACT No. 357379/16 (Old Suit No. 223/11) Page No. 7 of 26 Srishthi Saini vs. Rakesh Verma & ors.
on 02.07.2012 by Hon'ble Mr. Justice G.P. Mittal (Delhi High Court), it was observed that it has to be borne in mind that the Motor Vehicles Act does not envisage holding a trial for a petition preferred under Section 166 of the Act. Under Section 168 of the Act, a Claims Tribunal is enjoined to hold an inquiry to determine compensation which must appear to it to be just. Strict rules of evidence are not applicable in an inquiry conducted by the Claims Tribunal. Further in State of Mysore Vs. S.S. Makapur, 1993 (2) SCR 943, Hon'ble Supreme Court held that the Tribunals exercising quasi- judicial functions are not courts and are not bound by strict rules of evidence. The relevant portion of the report is extracted hereunder:
".......that tribunals exercising quasi- judicial functions are not courts and that therefore they are not bound to follow the procedure prescribed for trial of actions in courts nor are they bound by strict rules of evidence. They can unlike courts, obtain all information for the points under the enquiry from all sources, and through all channels, without being fettered by rules and procedure, which govern proceedings in court. The only obligation which the law casts on them is that they should not act on any information which they may receive unless they put it to the party against whom it is to be used and give him a fair opportunity to explain it. What is a fair opportunity depend on the facts and circumstance of each case but where such an opportunity has been given, the proceedings are not open to attack on the ground that the enquiry was not conducted in accordance with the procedure followed in courts."
Reference may also be made to observations in Ranu Bala Paul & Others vs. Bani Chakraborty 1999 ACJ 634 Gauhati wherein the claim was allowed after consideration of FIR before the Tribunal.
"In deciding a matter Tribunal should MACT No. 357379/16 (Old Suit No. 223/11) Page No. 8 of 26 Srishthi Saini vs. Rakesh Verma & ors.
bear in mind the caution struck by the Apex Court that a claim before the Motor Accident Claims Tribunal is neither a criminal case nor a civil case. In a criminal case in order to have conviction, the matter is to be proved beyond reasonable doubt and in a civil case the matter is to be decided on the basis of preponderance of evidence, but in a claim before the Motor Accident Claim Tribunal the standard of proof is much below than what is required in a criminal case as well as in a civil case. No doubt before the Tribunal, there must be some material on the basis of which the Tribunal can arrive or decide things necessary to be decided for awarding compensation. But the Tribunal is not expected to take or to adopt the nicety of a civil or of a criminal case. After all, it is a summary enquiry and this is a legislation for the welfare of the society. In N.K.V. Bros. (P) Ltd. v. M. Marumai Ammal, 1980 ACJ 435 (SC), the Supreme Court pointed out that the Accidents Claims Tribunal must take special care to see that innocent victims do not suffer and persons liable do not escape liability merely because of some doubt here and some obscurity there. The court should not succumb to niceties, technicalities and mystic maybes. The court is bound to take broad view of the whole matter."
(emphasis supplied) (iv In view of the aforesaid case law, I am of the considered opinion that the testimony of PW1 is sufficient to hold that the accident had been caused due to rash and negligence of respondent No.3, accordingly Issue no. 1 is decided in favour of claimant/petitioner and against the respondents.
MACT No. 357379/16 (Old Suit No. 223/11) Page No. 9 of 26 Srishthi Saini vs. Rakesh Verma & ors.
Issue no.2:
Whether the petitioner is entitled to compensation, if so, how much and from whom?
11. Income of Injured:-
(i) Admittedly, injured was about 16 years old at the time of accident because as per Ex. PW1/D, her date of birth is May 10, 1991. From the testimony of PW1, it becomes clear that at the time of accident, she was studying and she met with an accident when she was going to school to attend class. It means that she was not earning anything at the time of accident.
(ii) In case Chetan Malhotra vs. Lala Ram & ors, MAC. MATT.554/2010 decided by the Hon`ble High Court on 13.5.2016, Hon`ble High Court laid down the law for calculation of 'just compensation' in respect of death of children. The relevant para are 66 to 71 and same are reproduced as under:-
66. For ready reference, the rates of Cost Inflation Index (CII) notified by the government till date, to the extent necessary, are reproduced in the table given below :
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Financial CII Financia CII
Year l Year
Before 100 2004-05 480
01/04/1981
1981-82 100 2005-06 497
1982-83 109 2006-07 519
XXX XXX 2007-08 551
1997-98 331 2008-09 582
1998-99 351 2009-10 632
1999-2000 389 2010-11 711
2000-01 406 2011-12 785
2001-02 426 2012-13 852
2002-03 447 2013-14 939
2003-04 463 2014-15 1024
2015-16 1081
67. In the considered view of this Court, the cases for compensation on account of death of children in motor vehicular accident cases ought to be dealt with by considering the claim towards pecuniary damages (towards loss to estate), in accordance with the age-
group wise categories as in R.K.Malik (supra); the first category being of children less than 10 years‟ in age, the second category being of children more than 10 years‟ and up to 15 years‟ in age, and the third category of children more than 15 years‟ but not having attained the age of majority (18 years). The children in the third category would ordinarily be of such age group as is generally receiving formal school education or those that are (being) imparted special training so as to be equipped with requisite skills to be gainfully employed in a variety of trades. They are after all nearing adulthood and thus, on the threshold of becoming self-reliant. In such cases, the MACT No. 357379/16 (Old Suit No. 223/11) Page No. 11 of 26 Srishthi Saini vs. Rakesh Verma & ors.
prospects of their employability and earnings in future or present, based on evidence adduced about their academic track record or training in special talents or skills, would need to be borne in mind. As in Lata Wadhwa (supra), the claim for pecuniary damages arising out of death of children of this age group cannot be at par with the lower age groups falling in the first and second category. Therefore, the pecuniary loss to estate due to their death would deserve to be worked out by applying a higher multiplier on the notional income (of non-earning persons) unless, of course, case is properly made out for higher considerations. Noticeably, in Sarla Verma (supra) the Supreme Court specified the multiplier of 18 for cases where the deceased was in the age-group of 15 years‟ to 20 years‟ old. For the first and second category, however, the multiplier of 10 and 15 respectively, as used in R.K. Malik (supra), would hold good.
68. Since in the claims arising out of death of children, generally speaking, (non-earning hands), the income is to be notionally assumed on the basis of the second schedule to the MV Act, the general practice of deduction of one-half (50%) towards personal & living expenses, as applied in case of bachelors above the age of 18 years would be unfair. Pertinently, the notional income specified for non-earning persons in the second schedule is very low as compared to the rates of minimum wages. Therefore, the deduction of one-third (1/3rd) on this account, as provided by the first note below the second schedule would only be appropriate.
69. The award of compensation must necessarily take into account non-pecuniary damages. In R.K. Malik (supra), ` 75,000/- awarded by this Court as the "conventional MACT No. 357379/16 (Old Suit No. 223/11) Page No. 12 of 26 Srishthi Saini vs. Rakesh Verma & ors.
compensation" was enhanced by the Supreme Court by further similar amount (` 75,000/-) as the "compensation for future prospects". For the reasons set out earlier, in the context of pecuniary loss to estate, the composite sum of non- pecuniary damages of ` 1,50,000/- [as awarded in R.K. Malik (supra)] would deservedly be added, but with suitable correction so as to ensure that the deficiency in the real value of money is made good. As noted (in para 46) earlier, the Supreme Court justified the addition of ` 75,000/- towards compensation for "future prospects" by noting that the said amount was "roughly half of the amount given on account of pecuniary damages". Since the court had also upheld the award of similar sum (` 75,000/-) by this court as "conventional compensation", both amounts of non-pecuniary damages, put together, account for roughly an amount equivalent to the sum computed as pecuniary loss to estate. Thus, this court is of the view that a composite sum equal to the amount computed as pecuniary loss to estate may be added as non- pecuniary damages (inclusive of conventional compensation and for future prospects), in such cases as at hand to arrive at the appropriate figure of 'just compensation'.
70. It has been noticed by this Court that the tribunals have been assessing the compensation and awarding it to the last rupee, at times even in the fraction of a rupee, not bothering to follow the practice of rounding off. Awards in at least two of the cases from which the appeals at hand arise provide ready illustration. This seems to be not correct. It must be added here that human misery cannot be calculated with such mathematical precision. Even otherwise for convenience of accounting, it is desirable that the amount of award is rounded off to the MACT No. 357379/16 (Old Suit No. 223/11) Page No. 13 of 26 Srishthi Saini vs. Rakesh Verma & ors.
nearest (if not next) thousands of rupees.
71. Subject to all other requisite conditions being fulfilled, for the foregoing reasons, in order to bring about consistency and uniformity in approach to the issue, it is held that claims for compensation on account of death of children shall be determined as follows :
(i). Till such time as the law is amended by the legislature, or the Central Government notifies the amendment to the Second Schedule in exercise of the enabling power vested in it by Section 163-A (3) of the Motor Vehicles Act, 1988, and except in cases wherein the prospects of employability and earnings (in future or present) of the deceased child are proved by cogent and irrefutable evidence, this having regard, inter alia, to the academic record or training in special talents or skills, for computing the pecuniary damages on account of the loss to estate, the notional income of non-earning persons (` 15000/-
p.a.) as specified in the Second Schedule (brought in force from 14.11.1994), shall be assumed to be the income of the deceased child, and taken into account after it is inflation- corrected with the help of Cost Inflation Index (CII) as notified by the Government of India from year to year under Section 48 of the Income Tax Act, 1961, by applying the formula indicated hereinafter.
(ii) For inflation-correction, the financial year of 1997- 1998 shall be treated as the "base year" and the value of the notional income relevant to the date of cause of action shall be computed in the following manner :-
` 15,000/- x A ÷331 [wherein the figure of '` 15,000/-' represents the notional income specified in the second schedule requiring inflation-correction; 'A' MACT No. 357379/16 (Old Suit No. 223/11) Page No. 14 of 26 Srishthi Saini vs. Rakesh Verma & ors.
represents the CII for the financial year in which the cause of action arose (i.e. the accident / death occurred); and the figure of '331' represents the CII for the 'base year']
(iii). After arriving at an appropriate figure of the present equivalent value of the notional income (i.e. inflation- corrected amount), it shall be rounded off to a figure in next thousands of rupees.
(iv). The amount of notional income thus calculated shall be reduced to two-third, the deduction to the extent of one-third being towards personal & living expenses of the deceased, the balance taken as the annual loss to estate (hereinafter also referred to as "the multiplicand").
(v). For assessment of the pecuniary damages on account of the death of children upto the age of 10 years, the loss to estate shall be calculated, capitalizing the multiplicand, by applying the multiplier of ten (10).
(vi). For children of the age-group of more than 10 years upto 15 years, the loss to estate shall be calculated by applying the multiplier of fifteen (15).
vii). For children of the age-group of more than 15 years but less than 18 years, the loss to estate shall be calculated by applying the multiplier of eighteen (18).
(viii). After the pecuniary loss to estate has been worked out in the manner indicated above, an amount equivalent to the amount thus computed shall be added to it as the composite non-pecuniary damages taking care of not only the conventional heads but also towards future prospects as awarded in R.K. Malik v. Kiran Pal (2009) 14 SCC 1.
(ix). The final sum thus arrived at, appropriately rounded off, if so required to the nearest (if not next) thousands of rupees, shall be awarded as compensation for the death of the child.
(emphasis supplied) MACT No. 357379/16 (Old Suit No. 223/11) Page No. 15 of 26 Srishthi Saini vs. Rakesh Verma & ors.
(iii) In view of the above, the notional income of the injured is calculated as under:-
` 15,000/- x 551 ÷ 331 = ` 24,969/-
= ` 25,000/-
Loss of Income:-
(i) As per the medical record Ex. PW1/C & PW2/A, injured remained admitted in the hospital w.e.f August 25, 2007 to September 8, 2007 and for the period September 28, 2007 to September 29, 2007. It means that injured remained admitted in the hospital for 17 days. As per medical record, she got the treatment as out door patient till October 16, 2007. From the discharge summary (Ex. PW2/A), it becomes clear that she had undergone surgery. Considering the facts and circumstances of the case, two months loss of income ` 25,000/- is awarded to her. In total ` 50,000/- is awarded towards loss of income.
Medical Expenses:-
(i) Counsel appearing for petitioner submitted that though petitioner had incurred a sum of ` 1,39,906/- on the medical treatment of injured, yet petitioner had received a sum of ` 80,000/- from the Insurance Company against the medical claim policy. Accordingly, respondent no.2 is liable to pay the MACT No. 357379/16 (Old Suit No. 223/11) Page No. 16 of 26 Srishthi Saini vs. Rakesh Verma & ors.
balance amount of ` 59,906/-. This contention was not challenged by the respondents, accordingly, a sum of ` 59,906/- is awarded towards medical bills.
Conveyance Charges PW1 in her cross-examination deposed that injured had sustained fracture in the pelvic region collar bones and fractures of the skull and she could join her school in November 2007. PW3 in her examination-in-chief deposed that patient had sustained fracture over the left side of hip bone and patient had deep wound over left upper limb of her body and she had undergone skin grafting over the left upper limb and she had sustained 25% to 35% facial disfiguration. Since, the injured was minor at the time of accident, it means that she must be accompanied by some family members at the time of going to hospital. Considering the duration of the medical treatment, a sum of ` 10,000/- is awarded towards conveyance charges.
Cost of Nursing / Attendant Charges:
Considering the facts as mentioned in examination-in-chief of claimant, it can safely be presumed that injured must be attended by someone either by family member or by paid attendant. Since, injured joined her school in November, 2007, attendant charges is awarded from August 2007 to October 2007 i.e. for three months @ MACT No. 357379/16 (Old Suit No. 223/11) Page No. 17 of 26 Srishthi Saini vs. Rakesh Verma & ors.
` 3000 per month i.e. ` 9000/-.
Special Diet:
(i) Perusal of the medical documents reveals that doctor advised the patient for nutritious diet. Considering the report of treatment, a sum of ` 10,000/- is awarded towards special diet.
Pain and Suffering:
(i) Admittedly, the injured was 16 years old at the time of accident and she met with an accident when she was going to school to attend class. Due to the injuries, she had not only suffered multiple injuries, but she had also undergone surgery and she could not attend her school prior to November 2007. Accordingly, it can safely be presumed that she must have suffered acute pain and suffering due to injuries caused to her. Considering the facts and circumstances of the case, a sum of ` 1 Lakh is awarded to her under this head.
Loss of studies:-
(i) From the testimony of PW1, it becomes clear that she could not attend the school prior to November 2007.
It means that she must have suffered loss of her study from August to October. Accordingly, a sum of ` 10,000/- is MACT No. 357379/16 (Old Suit No. 223/11) Page No. 18 of 26 Srishthi Saini vs. Rakesh Verma & ors.
awarded to her under this head.
Loss of Disfigurement:-
(i) Admittedly, the injured was 16 years old at the time of accident. From the testimony of PW3, it becomes clear that due to injuries she had suffered 25-35% of facial disfigurement. Though the loss of disfigurement cannot be quantified in terms of money, yet considering the facts and circumstances of case, a sum of ` 1 lac is awarded to her under this head.
Loss of Mental and physical shock:-
(i) Admittedly, injured had suffered injuries when she was going to school. Due to accident, she had not only sustained injuries and undergone surgery, but she had also suffered facial disfigurement between 25% to 35%. Thus, it can safely be presumed that she must have suffered mental and physical shock not only at the time of accident, but even thereafter. Though mental and physical shock can not be quantified in terms of money, yet a sum of ` 50,000/- is awarded to her under this head.
Loss of Amenities.
(i) As already discussed that the injured had not only suffered multiple injuries and undergone surgery but she MACT No. 357379/16 (Old Suit No. 223/11) Page No. 19 of 26 Srishthi Saini vs. Rakesh Verma & ors.
had also suffered disfigurement of face between 25% to 35%. Further, she could not even attend her school prior November 2007. Thus, it can safely be presumed that she must have suffered some loss of amenities of life. Though the loss of amenities of life cannot be quantified in terms of money, yet considering the facts and circumstances of the case, a sum of ` 75,000/- is awarded to her under this head.
Loss of marriage prospect:-
(i) As already discussed that the injured had suffered disfigurement of face between 25% to 35%, thus it can safely be presumed that disfigurement may cause some hurdle in her marriage prospect. Though the said loss can not be quantified in terms of money, yet considering the facts and circumstances of the case, a sum of ` 1 lac is awarded to her under this head.
12. As discussed above, the overall compensation is tabulated as under:
NAME OF HEAD AMOUNT
(in ` )
Loss of Income (` 25,000/- X 2) 50,000/-
Medical Expenses 59,906/-
Conveyance charges 10,000/-
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Srishthi Saini vs. Rakesh Verma & ors.
Nursing charges/attendant charges 9,000/-
(` 3000 X 3)
Special Diet 10,000/-
Pain and suffering 1,00,000/-
Loss of studies 10,000/-
Disfigurement 1,00,000/-
Mental & physical shock 50,000/-
Loss of amenities 75,000/-
Loss of marriage prospect 1,00,000/-
Total 5,73,906/-
Round off :- ` 5,74,000/-
(Rupees Five Lac Seventy Four Thousands Only)
(i) The claimant/petitioner is also entitled for interest @ 9% per annum from the date of filing of the petition i.e. October 10, 2007 till realization of the award.
13. DISBURSEMENT:-
(i) Injured who is now 26 years old in her statement recorded regarding her financial status in terms of clause 26 of Rajesh Tyagi & others Vs Jaibir Singh & others, FAO No. 842 of 2003 decided by Hon`ble High Court of Delhi on December 12, 2014, testified that she is taking tuition at home and earning ` 5,000/- to ` 6,000/- per month and her monthly MACT No. 357379/16 (Old Suit No. 223/11) Page No. 21 of 26 Srishthi Saini vs. Rakesh Verma & ors.
expenses is between ` 5,000/- to ` 6,000/- per month.
(ii) In view of her statement, on realization a sum of ` 1,74,000/- with interest upto date shall be released to her and balance amount of ` 4,00,000/- shall be put in 40 fixed deposits in the name of injured in a nationalized bank of equal amount for a period of one (1) month to forty (40) months with the following conditions as enumerated by the High Court of Delhi in FAO No. 842/03 Rajesh Tyagi & others vs. Jaibir Singh & others decided on February 13, 2017 case:-
(i) Original fixed deposit receipts be retained by the bank in safe custody. However, a statement containing FDR number, FDR amount, date of maturity of FDR and maturity amount of the FDRs be given to the claimant.
(ii)The maturity amount of the FDR be credited in the saving account of the claimant near the place of her residence.
(iii) No cheque book be issued to the claimant in the savings bank account without permission of the court.
(iv) No loan, advance or premature withdrawal be allowed on the fixed deposits without permission of the court.
(v) The bank shall not permit any joint name to be added in the savings bank account or fixed deposit accounts of the victim.
MACT No. 357379/16 (Old Suit No. 223/11) Page No. 22 of 26 Srishthi Saini vs. Rakesh Verma & ors.
14. LIABILITY TO PAY:-
(i) Counsel appearing for insurance company submitted that since driving licence was fake, insurance company is entitled for recovery right. In support of his contention, counsel placed reliance on the deposition of R2W2 Mr. Ravi Karan Singh.
(ii) From the testimony of R2W2, it is cleared that licence bearing No. ET576/MTR/2003 was issued in the name of Roshan Ali s/o Sarfuddin and not in the name of Kamal Singh i.e. respondent No.3. This establishes that licence was fake. Since licence of respondent No.3 was fake, it means that he was driving the vehicle without any licence, thus insurance company is entitled to get recovery right qua respondent No.3.
(iii) In order to get recovery right qua registered owner of the vehicle, insurance company is under obligation to show that there was a willful breach of terms and conditions of the Policy on the part of registered owner.
(iv) Perusal of the written statement of respondent No.1 reveals that he admitted the contents of para No. 15 and 16 of the petition. It means that he admitted that he was registered owner of the vehicle and respondent No.3 was his driver. He nowhere alleged in his written statement that he had seen the driving licence of respondent No.3 before MACT No. 357379/16 (Old Suit No. 223/11) Page No. 23 of 26 Srishthi Saini vs. Rakesh Verma & ors.
employing him. Being the registered owner, it was his duty to check the driving licence of respondent No.3 before employing him. From the testimony of R2W3, it becomes clear that insurance company had sent a notice under Order 12 Rule 8 CPC to respondent No.1 & 3, but they failed to respond the said notice. Even during inquiry, respondent No.3 stopped appearing, consequently, he was proceeded ex-parate on March 12, 2012. In these circumstances, it can safely be presumed that it was in the knowledge of respondent No.1 that respondent no.3 was not having valid licence and due to that reason, he had not taken any such plea either in his written statement or during inquiry. Accordingly, there is a willful breach of the terms and conditions on the part of respondent no.1 also. Accordingly, insurance company is entitled to recover the award amount from the registered owner also without filing separate civil suit.
(v) In view of above, insurance company is directed to satisfy the award and recover the amount from respondent No.1 & 3 without filing separate civil suit.
(vi) In view of above, Issue No.2 is decided in favour of petitioner and against the respondents.
15. Relief:
Since, the offending vehicle was duly insured with respondent No.2 (The Oriental Insurance MACT No. 357379/16 (Old Suit No. 223/11) Page No. 24 of 26 Srishthi Saini vs. Rakesh Verma & ors.
Company Limited), respondent No.2 is directed to deposit the award amount of ` 5,74,000/- with interest @ 9 % per annum from the date of filing of petition i.e. October 10, 2007 till realization with Nazir of this Tribunal within 30 days under intimation to the petitioner failing which the Insurance Company shall be liable to pay interest @ 12 % per annum for the period of delay beyond 30 days.
16. Insurance company, driver and owner of the offending vehicle are also directed to place on record the proof of deposit of the award amount, proof of delivery of notice in respect of deposit of the amount to the petitioner/claimant and complete detail in respect of calculation of interest etc. within 30 days from today.
(i) A copy of this judgment be sent to respondent No.2 (The Oriental Insurance Company Limited) for compliance within the time granted.
(ii) Nazir is directed to place a report on record on November 27, 2017 in the event of non-receipt/deposit of the compensation amount within the time granted.
(iii) In terms of clause 31 & 32 of the judgment titled Rajesh Tyagi & others Vs. Jaibir Singh & Ors. decided by Hon`ble High Court on December 12, 2014, copy of this award be sent to the concerned court of Ld. MACT No. 357379/16 (Old Suit No. 223/11) Page No. 25 of 26 Srishthi Saini vs. Rakesh Verma & ors.
Metropolitan Magistrate and Secretary DLSA, Central District for information and necessary action.
(iv) File be consigned to Record Room.
Announced in open court on this 23rd day of October, 2017 (PAWAN KUMAR JAIN) Judge, MACT-1 (Central), Tis Hazari Courts, Delhi/sv MACT No. 357379/16 (Old Suit No. 223/11) Page No. 26 of 26