Delhi District Court
Smt. Sonia (Mother) vs The New India Assurance Company Ltd. ... on 3 August, 2021
IN THE COURT OF Dr. KAMINI LAU : PO (MACT)01
(CENTRAL) TIS HAZARI COURTS, DELHI
MACT No. 72/2019
CNR No. DLCT010013532019
1. Smt. Sonia (Mother)
W/o Sh. Kamal
2. Sh. Kamal (Father)
S/o Sh. Megu
Both R/o H. No. 119, Duda Quater,
Bharvaniya Patti, Tatiri,
Baghpat, Uttar Pradesh250601.
......Petitioners
Versus
1. The New India Assurance Company Ltd. (Insurer)
Through Manager,
TP Claim Hub, 12/1, 2nd Floor,
Jeevan Raksha Building,
Asaf Ali Road, Kamla Market,
Delhi110003.
2. Virendra Singh (Owner)
S/o Sh. Laxman Singh
R/o VPO, Sisana, Distt. Baghpat,
Uttar Pradesh250101.
3. Kamal Singh (Driver)
S/o Sh. Hari Singh
R/o VPO, Dhokla Bass, PO Karahari,
P.S. Surir, Distt. Mathura, Uttar Pradesh281205.
......Respondents
Sonia & Anr. Vs. New India Assurance Co. Ltd. & Ors., MACT No. 72/2019
Award dated 03.08.2021 Page No. 1 of 26
Digitally signed by KAMINI LAU
KAMINI LAU Date: 2021.08.03 17:16:50
+0530
Date of filing of claim petition: 29.01.2019
Arguments concluded on: 15.07.2021
Date of Award: 03.08.2021
A W A R D:
(1) The present Claim Petition has been filed by the petitioners
under Section 166 & 140 of the Motor Vehicle Act, 1988 claiming a
compensation of Rs.50,00,000/ (Rupees Fifty Lacs Only) in respect of
death of deceased Sanskar in a motor vehicular accident which place on
16.10.2018 at about 02.30 PM at Main Road, Duda Colony, Tatiri
Baghpat, Uttar Pradesh involving Sonalika Tractor bearing
registration No. UP17P0079 driven by its driver Kamal Singh.
BRIEF FACTS:
(2) The Facts in Brief as emerged from the claim petition are that on 16.10.2018 the deceased Sanskar alongwith his grandmother was walking roadside at about 2.30 PM and when he reached Main Road, Duda Colony, Tatiri, Baghpat, all of a sudden the offending vehicle bearing registration No. UP17P0079 make Sonalika Tractor being driven by its driver rashly, negligently, without taking necessary precautions, without proper lookouts, without following the traffic rules came, hit the deceased with heavy force from back side due to which the deceased fell down on the road and the offending vehicle ran over the deceased as a result of which the deceased received fatal injuries on the Sonia & Anr. Vs. New India Assurance Co. Ltd. & Ors., MACT No. 72/2019 Award dated 03.08.2021 Page No. 2 of 26 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.08.03 17:16:59 +0530 spot. It is pleaded that at the time of the accident, the deceased was two and half years of age with very good health & physique and was not suffering from any disease or ailment. The petitioners/ claimants are the parents of the deceased and they are the only legal heirs of the deceased. According to the petitioners, an FIR No. 1250/2018, under Sections 279/304A IPC PS Baghpat was registered against the driver of the offending vehicle. It is pleaded that the principles of res ipsa loquitor applies to the present case sine the accident in question took place due to rash and negligent driving of the driver. The petitioners are claiming a sum of Rupees Fifty Lacs as compensation on account of unnatural, untimely and sudden death of the deceased; for mental pain and agony; loss of love and affection; loss of company; loss of income; loss of future income; expenses on medical treatment; loss of consortium; loss of funeral expenses and other damages under the various provisions of the Motor Vehicles Act. According to the petitioners, the respondents being the driver, owner & insurer of the offending vehicle, are jointly vicariously and severally liable to pay compensation to the claimants. (3) A detailed reply to the claim petition has been filed on behalf of the respondent no.1 New India Assurance Co. Ltd. wherein a preliminary objection has been raised that no cause of action ever arose against the respondent no.1 and it has no knowledge about the alleged accident and the manner in which the alleged accident took place, as there is no compliance of provisions of Section 158 (6) of Motor Vehicles Act. It is further pleaded that the present claim petition is not Sonia & Anr. Vs. New India Assurance Co. Ltd. & Ors., MACT No. 72/2019 Award dated 03.08.2021 Page No. 3 of 26 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.08.03 17:17:05 +0530 maintainable for want of jurisdiction under Section 166 (2) of the Motor Vehicles Act, 1988 as neither the petitioners nor the driver/ owner/ insured is residing within the territorial jurisdiction of the Hon'ble Court and nor the alleged accident occurred within the jurisdiction of this Court. It is pleaded that the policy issuing office of the respondent no.1 is not situated with the territorial jurisdiction of the Hon'ble Court and hence, the present claim petition is not maintainable and liable to be dismissed on this sole ground. It is further pleaded that the claimants would be more comfortable and their welfare would be properly served in case the claim petition is filed and adjudicated upon within the territorial jurisdiction of Baghpat, Uttar Pradesh where the accident occurred and where the petitioners reside. It is also pleaded that in the present case, FIR was registered against an unknown driver and as per the FIR and GD No.44 dated 16.10.2018 & GD No. 16 dated 17.10.2018, there was no registration number on the alleged offending tractor and the complainant Sh. Kamal stated in the FIR that the registration number on the tractor was erased on both front side and backside. It is also pleaded that primafacie the insured vehicle i.e. UP 17P0079 was falsely implanted in the alleged accident and was not involved in the said accident and this was done merely to extort money from the respondent no.1 and hence, the respondent no.1 is not liable to pay any compensation to the petitioners. It is further pleaded that there is a contradiction in the manner of occurrence of the alleged accident because as per the site plan the deceased (Master Sanskar) and the Sonia & Anr. Vs. New India Assurance Co. Ltd. & Ors., MACT No. 72/2019 Award dated 03.08.2021 Page No. 4 of 26 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.08.03 17:17:12 +0530 alleged offending vehicle were going in the same direction whereas as per the FIR and other police papers the alleged offending vehicle was coming from the opposite direction when it crushed the deceased and the whole accident is doubtful. It is also pleaded that the respondent no.1 is not liable to pay any compensation to the claimants/ petitioners until and unless it is proved that their insured vehicle bearing No. UP17P 0079 was involved in the said accident and there was negligence on the part of the driver of the alleged offending vehicle bearing No. UP17P 0079 until & unless it is proved by the owner/insured that the driver who was driving the alleged accidental vehicle at the time of accident was doing so with the prior consent /permission of the insured, holding a valid and effective license with all the necessary endorsement thereon as per Motor Vehicles Act and Rules made thereunder for the category of vehicle in question was not disqualified to hold and obtain the same and / or was not driving the offending vehicle in contravention of the M.V. Act, Rules, Regulations, conditions and limitation of the Insurance Policy on the date of accident. It is also pleaded that the owner/ insured must further prove that the vehicle in question had valid permit, authorization and fitness certificate for the area where the alleged accident took place, failing which the Insurance Company shall not liable to pay any compensation. It is further pleaded that the alleged offending vehicle was insured in the name of Mr. Virender Singh with respondent no.1 vide Policy No. 32110031170200007785 valid and effective w.e.f. 21.02.2018 to 20.02.2021 and the liability of the Sonia & Anr. Vs. New India Assurance Co. Ltd. & Ors., MACT No. 72/2019 Award dated 03.08.2021 Page No. 5 of 26 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.08.03 17:17:18 +0530 respondent no.1, if any, is subject to the terms, condition, limitation and exceptions contained therein and the Motor Vehicle Act, 1988 and Rules framed therein. It is also pleaded that as per Chapter 5.11 (4) of the Claim Tribunal Agreed Procedure, the respondent no.1 prayed that the permission under Section 170 of the Motor Vehicle Act, 1988 be granted to the respondent no.1 to contest the case on all ground available to the alleged driver and owner/ insured of the alleged offending vehicle, without prejudice to Section 149 (2) of the M.V. Act in case they failed to contest the claim or if there is any collusion between the claimants and other respondents i.e. the driver and owner/insured of the alleged offending vehicle.
(4) A common written statement has been filed on behalf of the respondent no.2 and 3 wherein a preliminary objection has been raised that the present claim petition is not maintainable since the petitioner has not come to the court with clean hands and has not disclosed the real facts in relation to the alleged accident and therefore, the petition is liable to be dismissed with costs. It is further pleaded that the alleged accident was not caused due to the fault and negligence of the respondent no.3 and in fact the respondent no.3 has no concern with the said accident and he was falsely implicated in the said accident. It is also pleaded that neither the respondent no.2 nor the respondent no.3 is liable to pay any damages. It is also pleaded that the damages claimed by the petitioner are highly excessive and imaginary and the same have been claimed on unrealistic grounds. It is further pleaded that the Sonia & Anr. Vs. New India Assurance Co. Ltd. & Ors., MACT No. 72/2019 Award dated 03.08.2021 Page No. 6 of 26 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.08.03 17:17:25 +0530 respondent no.3 has no concern with the death of deceased and therefore, neither the respondent no.2 nor the respondent no.3 is liable to pay the damages despite which the respondents no.2 and 3 are made a false party in the case by the petitioners in connivance with the police so as to extract money from the respondents. It is also pleaded that the petitioners had not filed the affidavit properly signed by him for not filing any similar petition for the similar relief, either before this court or before any other court of law. It is further pleaded that the Sonalika 750 III RX bearing registration No. HR13L2126 was comprehensively insured in the name of answering respondent no.2 with respondent no.1 Insurance company vide cover note bearing No. 32110031170200007785 for the period from 21.02.2018 to 20.02.2019 and therefore, any compensation if so awarded by this court is liable to be satisfied and paid by the respondent no.1 Insurance Company being the insurer of the tractor in question. It is also pleaded that the offending vehicle was transfered in the name of respondent no.2 on 24.11.2016 and the Government of Uttar Pradesh registered, the said vehicle with the new registration number UP17P0079 but the vehicle insured with its previous registered number i.e. Sonalika750 III RX bearing registration No. HR13L2126 on the day of alleged incident. It is further submitted that on the date of the alleged accident i.e. 16.10.2018 the offending vehicle was being driven by the respondent no.3 who was holding a valid driving license is genuine and valid for driving for Tractor in question.
Sonia & Anr. Vs. New India Assurance Co. Ltd. & Ors., MACT No. 72/2019 Award dated 03.08.2021 Page No. 7 of 26 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.08.03 17:17:35 +0530 ISSUES FRAMED:
(5) On the basis of the pleading of the parties, vide order dated 16.01.2020, following issues were settled by this Court:
i. Whether this Court has the territorial jurisdiction to try the present claim petition? (OPP) ii. Whether the deceased Sanskar had expired on account of the injuries sustained in a road accident which took place on 16.10.2018 at 2.30 PM at Main Road, Duda Colony, Tatiri, Baghpat, Uttar Pradesh due to rash and negligent driving of Tractor bearing No. UP17P0079 by the respondent no.3 Kamal Singh? (OPP) iii. Whether the petitioners are entitled to any compensation?
If yes, to what extent and from whom? (OPP)
iv. Relief.
EVIDENCE:
(6) Perusal of the record shows that issues were settled by this
Court on 16.01.2020 after which the case was listed for petitioner's evidence for 04.03.2020. Despite the same neither the list of witnesses filed nor any affidavit of evidence was filed due to which reason vide order dated 04.03.2020 the evidence of the petitioner was closed. Since the petitioners have failed to lead any evidence therefore, the Ld. Counsel for the respondent no.1 Insurance Company has also closed his evidence. No application for review/ recall of the order dated Sonia & Anr. Vs. New India Assurance Co. Ltd. & Ors., MACT No. 72/2019 Award dated 03.08.2021 Page No. 8 of 26 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.08.03 17:17:44 +0530 04.03.2020 was filed seeking permission to lead petitioners evidence.
Thereafter the matter was listed for recording of Financial Statement of the petitioners but on many dates i.e. 21.07.2020, 20.08.2020, 09.09.2020, 17.11.2020 and 16.12.2020, neither the petitioner nor their counsel has appeared. Vide order dated 08.02.2021 this Court had imposed a cost of Rs.5,000/ upon the petitioners pursuant to which on 03.03.2021, both the petitioners had appeared and their Financial Statements were recorded.
FINDINGS & OBSERVATIONS:
(7) I have heard the arguments advanced before me by the Ld. Counsels for the petitioners and the respondents. I have also gone through the written memorandum of arguments filed by the parties and also given my thoughtful consideration to their contentions. My findings on the various issues are under:
Issue No.1 Whether this Court has the territorial jurisdiction to try the present claim petition? (OPP) (8) Onus of proving this issue was upon the petitioners. (9) Ld. Counsel for the petitioners has argued that the present claim petition has been filed before this Court since the office of the main contesting party i.e. the New India Assurance Company Ltd. has its office at 12/1, 2nd Floor, Jeevan Raksha Building, Asaf Ali Road, Kamla Market, New Delhi which falls within the territorial jurisdiction Sonia & Anr. Vs. New India Assurance Co. Ltd. & Ors., MACT No. 72/2019 Award dated 03.08.2021 Page No. 9 of 26 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.08.03 17:17:51 +0530 of this court. Ld. Counsel for the petitioners has placed his reliance upon the judgment of the Hon'ble Supreme Court in the case of Malati Sardar Vs. National Insurance Company Limited & Ors., in Civil Appeal No. 10/2016 [arising out of SLP (Civil) No. 27243/2015] decided on 05.01.2016 and also upon the judgment of the Hon'ble Delhi High Court in the case of Kaila Devi & Ors. Vs. Ankita & Anr., MAC. APP No. 1017/2017 decided on 31.07.2018.
(10) On the other hand, Ld. Counsel for the respondent no.1 New India Assurance Company Ltd. has vehemently argued that the petitioners and the Driver & Owner are residents of Mathura, U.P. and the vehicle in question was also insured from Sotiganj (Meerut) Division of New India Assurance Co. Ltd. It is further argued that even the Legal Hub of the respondent no.1 company is situated at 1 st Floor, CoreIII, SCOPE Minar, Laxmi Nagar, Delhi110092 and therefore, the present claim petition is liable to be dismissed for want of Territorial Jurisdiction. Ld. Counsel has further argued that as per the judgment of the Hon'ble Apex Court, relied upon by the claimants, the welfare of the claimants would be more properly served in case the claim petition is filed and adjudicated upon within the territorial jurisdiction of Bagpat, U.P. (11) I have considered the submissions made before me and have perused the record. The case of the Insurance Company is that its Legal hub is situated at 1st Floor, CoreIII, SCOPE Minar, Laxmi Nagar, Delhi110092. In this regard I may note that that the Insurance Sonia & Anr. Vs. New India Assurance Co. Ltd. & Ors., MACT No. 72/2019 Award dated 03.08.2021 Page No. 10 of 26 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.08.03 17:17:57 +0530 Company has nowhere stated that it does not have its office at the address so mentioned in the claim petition i.e. TP Claim Hub, 12/1, 2nd Floor, Jeevan Raksha Building, Asaf Ali Road, Kamla Market, Delhi110003. Further, I may observe that as per the information available on the Internet the New India Assurance Co. Ltd. has its office at 12/1, 2nd Floor, Jeevan Raksha Building, Asaf Ali Road, Kamla Market, Delhi110003 which falls within the jurisdiction of this Court. (12) I also observe that the Hon'ble Supreme Court has in the case of Malati Sardar Vs. National Insurance Company Limited & Ors., in Civil Appeal No. 10/2016 [arising out of SLP (Civil) No. 27243/2015] decided on 05.01.2016 specifically observed that there is no bar to a claim petition being filed at a place where the insurance company, which is the main contesting parties in such cases, has its business and in such cases, there is no prejudice to any party. The observations of the Hon'ble Supreme Court are quoted as under:
"...9. The question for consideration thus is whether the Tribunal at Kolkata had the jurisdiction to decide the claim application under Section 166 of the Act when the accident took place outside Kolkata jurisdiction and the claimant also resided outside Kolkata jurisdiction, but the respondent being a juristic person carried on business at Kolkata. Further question is whether in absence of failure of justice, the High Court could set aside the award of the Tribunal on the ground of lack of territorial jurisdiction.
10. In our view, the matter is fully covered by decisions of this Court in Mantoo Sarkar (supra). It will be Sonia & Anr. Vs. New India Assurance Co. Ltd. & Ors., MACT No. 72/2019 Award dated 03.08.2021 Page No. 11 of 26 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.08.03 17:18:04 +0530 worthwhile to quote the statutory provision of Section 166(2) of the Act :
"166. Application for compensation. * * * (2) Every application under subsection (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred, or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed: Provided that where no claim for compensation under Section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant."
11. In Mantoo Sarkar (supra), the insurance company had a branch at Nainital. Accident took place outside the jurisdiction of Nainital Tribunal. The claimant remained in the hospital at Bareilly and thereafter shifted to Pilibhit where he was living for a long time. However, at the time of filing of the claim petition he was working as a labourer in Nainital District. The High Court took the view that Nainital Tribunal had no jurisdiction and reversed the view taken by the Tribunal to the effect that since the office of the insurance company was at Nainital, the Tribunal had the jurisdiction. This Court reversed the view of the High Court. It was held that the jurisdiction of the Tribunal was wider than the civil court.
The Tribunal could follow the provisions of Code of Civil Procedure (CPC). Having regard to Section 21 Sonia & Anr. Vs. New India Assurance Co. Ltd. & Ors., MACT No. 72/2019 Award dated 03.08.2021 Page No. 12 of 26 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.08.03 17:18:10 +0530 CPC, objection of lack of territorial jurisdiction could not be entertained in absence of any prejudice.
Distinction was required to be drawn between a jurisdiction with regard to subject matter on the one hand and that of territorial and pecuniary jurisdiction on the other. A judgment may be nullity in the former category, but not in the later. Reference was also made to earlier decision of this Court in Kiran Singh vs. Chaman Paswan[4] to the following effect : "With reference to objections relating to territorial jurisdiction, Section 21 of the Civil Procedure Code enacts that no objection to the place of suing should be allowed by an appellate or revisional court, unless there was a consequent failure of justice.
It is the same principle that has been adopted in Section 11 of the Suits Valuation Act with reference to pecuniary jurisdiction. The policy underlying Sections 21 and 99 CPC and Section 11 of the Suits Valuation Act is the same, namely, that when a case had been tried by a court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it had resulted in failure of justice, and the policy of the legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate court, unless there has been a prejudice on the merits. The contention of the appellants, therefore, that the decree and judgment of the District Court, Monghyr, should be treated as a nullity cannot be sustained under Section 11 of the Suits Valuation Act.' "
12. We are thus of the view that in the face of judgment of this Court in Mantoo Sarkar (supra), the High Court Sonia & Anr. Vs. New India Assurance Co. Ltd. & Ors., MACT No. 72/2019 Award dated 03.08.2021 Page No. 13 of 26 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.08.03 17:18:16 +0530 was not justified in setting aside the award of the Tribunal in absence of any failure of justice even if there was merit in the plea of lack of territorial jurisdiction. Moreover, the fact remained that the insurance company which was the main contesting respondent had its business at Kolkata.
13. Reliance placed on decisions of this Court in G.S. Grewal and Jagmittar Sain Bhagat is misplaced. In G.S. Grewal, the subject matter of dispute was not covered by the definition of "service matters" under Section 3(o) of the Armed Forces Tribunal Act, 2007 and on that ground, it was held that the Armed Forces Tribunal had no jurisdiction in the matter. Thus, it was a case of inherent lack of jurisdiction over the subject matter. Similarly in Jagmittar Sain Bhagat, the claimant before the Consumer Protection Forum was found not be a "consumer" under Section 2(1)(d) of the Consumer Protection Act, 1986 and on that ground the order of the consumer forum was held to be without jurisdiction. The said cases did not deal with the issue of territorial jurisdiction.
14. The provision in question, in the present case, is a benevolent provision for the victims of accidents of negligent driving. The provision for territorial jurisdiction has to be interpreted consistent with the object of facilitating remedies for the victims of accidents. Hyper technical approach in such matters can hardly be appreciated. There is no bar to a claim petition being filed at a place where the insurance company, which is the main contesting parties in such cases, has its business. In such cases, there is no prejudice to any party. There is no failure of justice. Moreover, in view of categorical decision of this Court in Mantoo Sarkar (supra), contrary view taken Sonia & Anr. Vs. New India Assurance Co. Ltd. & Ors., MACT No. 72/2019 Award dated 03.08.2021 Page No. 14 of 26 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.08.03 17:18:23 +0530 by the High Court cannot be sustained. The High Court failed to notice the provision of Section 21 CPC.
15. Accordingly, we allow this appeal, set aside the impugned judgment of the High Court and restore the award of the Tribunal.....".
(13) This being so, the Insurance Company i.e. New India Assurance Company Limited who is the main contesting party in the present case, having its business at 12/1, 2nd Floor, Jeevan Raksha Building, Asaf Ali Road, Kamla Market, Delhi110003 which falls within the jurisdiction of this Court, I hereby hold that this court has the jurisdiction to try the present claim petition.
(14) Issue is accordingly decided in favour of the petitioners and against the respondents.
Issue No.2: Whether the deceased Sanskar had expired on account of the injuries sustained in a road accident which took place on 16.10.2018 at 2.30 PM at Main Road, Duda Colony, Tatiri, Baghpat, Uttar Pradesh due to rash and negligent driving of Tractor bearing No. UP17P0079 by the respondent no.3 Kamal Singh? (OPP) Issue No.3: Whether the petitioners are entitled to any compensation?
If yes, to what extent and from whom? (OPP) (15) Both the issues are clubbed together for the sake of
convenience involving common discussion. Onus of proving both the issues was upon the petitioners.
Sonia & Anr. Vs. New India Assurance Co. Ltd. & Ors., MACT No. 72/2019 Award dated 03.08.2021 Page No. 15 of 26 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.08.03 17:18:29 +0530 (16) The case of the petitioners is that on 16.10.2018 the deceased Sanskar alongwith his grandmother was walking roadside at about 2.30 PM and when he reached Main Road, Duda Colony, Tatiri, Baghpat, all of a sudden the offending vehicle bearing registration No. UP17P0079 make Sonalika Tractor being driven by its driver rashly, negligently, without taking necessary precautions, without proper lookouts, without following the traffic rules came, hit the deceased with heavy force from back side due to which the deceased fell down on the road and the offending vehicle ran over the deceased as a result of which the deceased received fatal injuries on the spot. It is pleaded that at the time of the accident, the deceased was two and half years of age with very good health & physique and was not suffering from any disease or ailment. The petitioners/ claimants are the parents of the deceased and they are the only legal heirs of the deceased.
(17) I may note that in order to prove their case, the petitioners have not led any evidence. Neither any list of witnesses has been filed nor any affidavit of evidence has been filed by the petitioners in support of their case due to which reason vide order dated 04.03.2020 the evidence of the petitioner was closed. Thereafter the petitioners have never filed any application for review/ recall of the order dated 04.03.2020. Rather, on 03.03.2021 the petitioners have filed an application under Order 6 Rule 17 CPC seeking permission to amend the provisions of the Claim Application (FormG) as 163A instead of 166 & 140 of Motor Vehicles Act which application was Dismissed by Sonia & Anr. Vs. New India Assurance Co. Ltd. & Ors., MACT No. 72/2019 Award dated 03.08.2021 Page No. 16 of 26 KAMINI Digitally signed by KAMINI LAU LAU Date: 2021.08.03 17:18:35 +0530 this Court vide order dated 03.03.2021 while observing that the said aspect can be considered and taken up suomoto by this court. (18) I have gone through the documents on record including the certified copy of the chargesheet filed in criminal case bearing FIR No. 1250/2018, under Sections 279/304A IPC, PS Baghpat, U.P. It is evident from the copy of FIR that it was registered on the basis of statement of Sh. Kamal (father of the deceased) wherein he had specifically stated that the driver of the offending vehicle i.e. Blue Coloures Sonalika Tractor fled away from the spot by leaving the Tractor at the spot. The name of the owner of the tractor is Virender Chauhan a resident of Village Sisana. Further, it is evident from the certified copy of the chargesheet that during investigations the name of the driver of the offending vehicle was revealed as Kamal S/o Sh. Hari Singh, R/o Dhoklabas, PS Surir, Distt. Mathura, U.P. who has been made an accused in the said case.
(19) This being the background, the petitioners having failed to lead any evidence in support of their case, I hold that the petitioners have failed to establish the rashness and negligence so attributed to the respondent no.3. Kamal S/o Sh. Hari Singh. Though the petitioners fails to establish that the accident had taken place due to the rash and negligent driving of respondent no.3, but the documents on record in the form of certified copy of the chargesheet are sufficient to hold that the accident had taken place due to the involvement of the Sonalika Tractor bearing No. UP17P0079. In my considered view the petitioners Sonia & Anr. Vs. New India Assurance Co. Ltd. & Ors., MACT No. 72/2019 Award dated 03.08.2021 Page No. 17 of 26 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.08.03 17:18:41 +0530 succeed to prove their case under Section 163A of Motor Vehicles Act.
(20) Now coming to the aspect of compensation to the petitioners. It is an admitted case of the Respondent no.1 New India Assurance Company Ltd. that the offending vehicle i.e. Sonalika Tractor bearing No. UP17P0079 was insured with them in the name of Mr. Virender Singh vide Policy No. 32110031170200007785 valid and effective w.e.f. 21.02.2018 to 20.02.2021.
(21) I may observe that in a claim petition under Section 163A of Motor Vehicles Act vide Gazette Notification bearing No. S.O.2022 (E) dated 22.05.2018 issued by the Ministry of Road Transport and Highways, Government of India, the compensation payable in case of death has been assessed as Rs.5,00,000/ (Rupees Five Lacs only). The second Schedule is reproduced as under:
Schedule for Compensation for Third Party Fatal Accidents/ Injury cases claims:
1. (a) Fatal Accident:
Compensation payable in case of Death shall be five lakh rupees.
(b) Accidents resulting in permanent disability:
Compensation payable shall be = [Rs.5,00,000/ X percentage disability as per ScheduleI of the Employee's Compensation act, 1923 (8 of 1923)]; Provided that the minimum compensation in case of permanent disability of any kind shall not be less than fifty thousand rupees.
Sonia & Anr. Vs. New India Assurance Co. Ltd. & Ors., MACT No. 72/2019 Award dated 03.08.2021 Page No. 18 of 26 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.08.03 17:18:48 +0530
(c) Accidents resulting in minor injury:
A fixed compensation of twenty five thousands rupees shall be payable.
2. On and from the date of 1st day of January, 2019, the amount of compensation specified in the clause
(a) to (c) of paragraph (1) shall stand increased by 5 per cent annually.
3. This notification shall come into force on the date of its publication in the Official Gazette.
(22) Since the deceased sustained fatal injuries, the case of the petitioners is covered by Clause 'A' as mentioned in the Notification, therefore, I hold that the petitioners are entitled to the compensation for a sum of Rs.5,00,000/.
(23) Here, I may note that the present claim petition was filed on 29.01.2019 on which date the Ld. Predecessor of this Court had directed the petitioners to file the statement of alleged eye witness Smt. Kampla and vide order dated 23.04.2019 it was directed by the Ld. Predecessor Court that the petitioners shall not be entitled for interest till they comply with the order dated 29.01.2019. Since the petitioners have failed to comply with the directions of the court dated 29.01.2019, I hereby hold that the petitioners shall not be entitled to any interest from the date of filing of Claim Petition till the date of award. However, the claimants shall be entitled to the interest @ 6% per annum from the date of award till realization of the amount.
Sonia & Anr. Vs. New India Assurance Co. Ltd. & Ors., MACT No. 72/2019 Award dated 03.08.2021 Page No. 19 of 26 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.08.03 17:18:53 +0530 Apportionment:
(24) The Petitioner no.1 Smt. Sonia is the mother of the deceased and petitioner no.2 Sh. Kamal is the father of the deceased. Their individual share is tabulated as under: Sr. Name of the Relation with Percentage of Amount in No. claimant deceased award amount (Rs.) 1 Smt. Sonia Mother 50% 2,50,000/ 2 Sh. Kamal Father 50% 2,50,000/ Disbursement:
(25) A Joint Financial Statement of both the petitioners were recorded on 03.03.2021 according to which they are labourers by profession and earn about Rs.18,000/ to Rs.20,000/ per month and their monthly expenses are about Rs.18,000/ to Rs.20,000/ but no document as such has been placed on record.
(26) Keeping in view the financial condition of the petitioners, I hereby direct that in so far as the petitioner no.1 Smt. Sonia is concerned on realization of the award amount, a sum of Rs.50,000/ plus half of interest amount be released to her from her share and the balance amount of Rs.2,00,000/ shall be put in Twenty monthly fixed deposits in her name in MACAD account of equal amount of Rs.10,000/ each for a period of 01 month to 20 months respectively with cumulative interest, in terms of the directions contained in FAO No.842/2003 dated 07.1.2018 & 08.01.2021. Besides the above said Sonia & Anr. Vs. New India Assurance Co. Ltd. & Ors., MACT No. 72/2019 Award dated 03.08.2021 Page No. 20 of 26 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.08.03 17:18:59 +0530 amount, amount of FDRs on maturity, shall automatically be transferred in her saving account maintained in a nationalized bank without the facility of cheque book and ATM card. It is clarified that the amount shall be released to her only on submitting the copy of passbook of such saving account with endorsement of the bank that no cheque book facility and ATM card has been issued or if has been issued, same has been withdrawn and same shall not be issued without the prior permission of this Tribunal. However, petitioner no. 1 shall have liberty to seek the release of Rs.50,000/ plus half of interest amount from the bank located within the jurisdiction of this Tribunal itself. (27) In so far as the petitioner no.2 Sh. Kamal S/o Sh. Megu is concerned, on realization of the award amount, a sum of Rs.50,000/ plus half of interest amount be released to him from his share and the balance amount of Rs.2,00,000/ shall be put in Twenty monthly fixed deposits in his name in MACAD account of equal amount of Rs.10,000/ each for a period of 01 month to 20 months respectively with cumulative interest, in terms of the directions contained in FAO No.842/2003 dated 07.1.2018 & 08.01.2021. Besides the above said amount, amount of FDRs on maturity, shall automatically be transferred in his saving account maintained in a nationalized bank without the facility of cheque book and ATM card. It is clarified that the amount shall be released to him only on submitting the copy of passbook of such saving account with endorsement of the bank that no cheque book facility and ATM card has been issued or if has been issued, same has Sonia & Anr. Vs. New India Assurance Co. Ltd. & Ors., MACT No. 72/2019 Award dated 03.08.2021 Page No. 21 of 26 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.08.03 17:19:06 +0530 been withdrawn and same shall not be issued without the prior permission of this Tribunal. However, petitioner no. 2 shall have liberty to seek the release of Rs.50,000/ plus half of interest amount from the bank located within the jurisdiction of this Tribunal itself. (28) The above FDRs shall be prepared with the following conditions as enumerated by the Hon'ble Delhi High Court in FAO No. 842/2003 under the title Rajesh Tyagi & Ors. Vs. Jaivir Singh & Ors. dated 07.01.2018 & 08.01.2021:
(i) The bank shall not permit any joint name to be added in the saving account or fixed deposit accounts of the claimants i.e. saving bank accounts of the claimants shall be an individual saving bank account and not a joint account.
(ii) Original fixed deposit shall be retained by the bank in safe custody. However, the statement containing FDR number, FDR amount, date of maturity and maturity amount shall be furnished by bank to the claimants.
(iii) The maturity amount of the FDRs be credited by the ECS in the saving bank account of the claimant near the place of their residence.
(iv) No loan, advance or withdrawal or premature discharge be allowed on the fixed deposits without the permission of the court.
(v) The concerned bank shall not issue any cheque book and/or debit card to claimants. However, in case the debit card and/or cheque book have already been issued, bank shall cancel the same before the Sonia & Anr. Vs. New India Assurance Co. Ltd. & Ors., MACT No. 72/2019 Award dated 03.08.2021 Page No. 22 of 26 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.08.03 17:19:12 +0530 disbursement of the award amount. The bank shall debit card(s) freeze the account of claimants so that no debit card be issued in respect of the account of claimants from any other branch of the bank.
(vi) The bank shall make an endorsement on the passbook of the claimant to the effect, that no cheque books and/or debit card have been issued and shall not be issued without the permission of the Court and the claimant shall produced the passbook with the necessary endorsement before the Court for compliance.
(29) In compliance of the directions given by Hon'ble High court in FAO No. 842/2003 dated 08.01.2021, Summary of the Award in the prescribed FormatXV is as under:
SUMMARY OF AWARD:
1. Date of Accident: 16.10.2018
2. Name of the deceased: Sanskar
3. Age of the deceased: Two and half years
4. Occupation of the deceased: Not Applicable
5. Income of the deceased: Not applicable
6. Name, Age and relationship of legal representatives of deceased:
Sr. No. Name Age Relation (i) Smt. Sonia 45 Years Mother (ii) Sh. Kamal 47 Years Father
Sonia & Anr. Vs. New India Assurance Co. Ltd. & Ors., MACT No. 72/2019 Award dated 03.08.2021 Page No. 23 of 26 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.08.03 17:19:19 +0530 COMPUTATION OF COMPENSATION:
Sr. Head Awarded by the claims No. Tribunal 7 Monthly Income of deceased (A) Under Section 163A 8 Add future prospect (B) of Motor Vehicles Act 9 Less personal expenses of the deceased (C) 10 Monthly loss of dependency [(A+B) - C = D] 11 Annual loss of Dependency (D x 12) 12 Multiplier (E) 13 Total loss of dependency D x 12 x E = F 14 Medical Expenses (G) 15 Compensation for loss of love and affection (H) 16 Compensation for loss of consortium (I) 17 Compensation for loss of Estate (J) 18 Compensation for funeral expenses (K) 19 Total Compensation (F+G+H+I+J+K = Rs.5,00,000/ L) 20 RATE OF INTEREST AWARDED 6% 21 Interest amount upto the date of award Nil (M) 22 Total amount including interest (L+M) Rs.5,00,000/ 23 Award amount released As mentioned in paras no. 26 & 27
Sonia & Anr. Vs. New India Assurance Co. Ltd. & Ors., MACT No. 72/2019 Award dated 03.08.2021 Page No. 24 of 26 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.08.03 17:19:25 +0530 24 Award amount kept in FDRs As mentioned in paras no. 26 & 27 25 Mode of disbursement of the award As mentioned in paras amount to the claimant(s) no. 26 & 27 26 Next Date of compliance of the award 03.09.2021 Liability to Pay:
(30) In so far as the liability to pay the award amount is concerned, since the offending vehicle bearing No. UP1790079 was insured with respondent no.1 New India Assurance Co. Ltd. as on the day of accident, it is respondent no.1 New India Assurance Co. Ltd. who is ultimately held liable to indemnify the insurance and to pay the compensation amount to the petitioners under the statutory liability.
(31) Both the issues are accordingly disposed off.
RELIEF:
(32) Since the offending vehicle was insured with the respondent no.1 New India Assurance Co. Ltd. therefore, the respondent no.1 is directed to deposit a sum of Rs.5,00,000/ (Rupees Five Lacs only) with interest @ 6% per annum from the date of award till realization with the Civil Nazir of this Tribunal within 30 days under intimation to the petitioners failing which insurance company Sonia & Anr. Vs. New India Assurance Co. Ltd. & Ors., MACT No. 72/2019 Award dated 03.08.2021 Page No. 25 of 26 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.08.03 17:19:30 +0530 shall be liable to pay interest @ 12% per annum for the period of delay beyond 30 days.
(33) The Insurer of the offending vehicle is 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 petitioners/ claimants and complete detail in respect of calculation of interest etc. within 30 days.
(34) A copy of this judgment be sent to the respondent No.1 i.e. New India Assurance Co. Ltd. for compliance within the time granted.
Respondent No.1 New India Assurance Co. Ltd. is further directed to give intimation of deposit of the compensation amount to the claimant and shall file a compliance report with the Claims Tribunal with respect to the deposit of the compensation amount within 15 days of the deposit with upto date interest with a copy to the counsel for the claimant namely Sh. Pankaj Kumar Dewal Advocate, Chamber No. 676, Western Wing, Tis Hazari Courts, Delhi 110054, Mobile No. 9871207191.
(35) Civil Nazir is directed to place a report on record on 03.09.2021 in the event of nonreceipt/deposit of the compensation amount within the time granted.
(36) File be consigned to Record Room.
Digitally signed by KAMINI LAU
KAMINI LAU Date: 2021.08.03 17:19:41
+0530
Announced in the open court (Dr. KAMINI LAU)
Dated: 03.08.2021 PO, MACT01 (Central),
Tis Hazari Courts, Delhi
Sonia & Anr. Vs. New India Assurance Co. Ltd. & Ors., MACT No. 72/2019 Award dated 03.08.2021 Page No. 26 of 26