Delhi District Court
Smt Anita & Ors. vs . Shri Visharat & Ors. on 12 April, 2017
IN THE COURT OF MS. MADHU JAIN:
PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS TRIBUNAL: SOUTH
EAST DISTRICT/ SAKET COURTS: NEW DELHI
st
1
Fatal Case
MACT No. 3428/16
FIR No: 104/12
PS Said Nangli, District Amroha (UP)
Smt Anita & Ors. Vs. Shri Visharat & Ors.
1. Smt Anita W/o Late Shri Jay Kirath Singh @ Jai Kishan (Wife of
deceased)
2. Seamains S/o Late Shri Jai Kirath Singh @ Jai Kishan (Son of
deceased),
3. Shri Devendra Singh S/o Late Shri Shiv Charan Singh (Father of
deceased)
All R/o Village 292, Geluwa, Tehsil & District Sambhal,
Moradabad, UP and presently at: C449, Sanjay Colony,
Okhla, PhII, New Delhi110020.
(Petitioner No. 2, being minor, is represented through his
natural guardian/ mother/ petitioner No. 1)
.......................... Petitioners/claimants
Versus
1. Shri Visharat S/o Shri Jakawat Hussain (Driver),
R/o H. No. 1063, Hayat Nagar Sambhal, Moradabad,
Uttar Pradesh.
2. Shri Kamar Ali S/o Shri Rafat Ali (Owner),
R/o 92, Moh. Jagat, PS Kotwali Nagar,
Moradabad, Uttar Pradesh.
3. Shriram General Insurance Co. Ltd. (Insurer)
(Through Manager) Branch Office: K18, 2nd Floor,
Lajpat NagarII, New Delhi.
.....................Respondents
MACT No. 3428/16 Anita & Ors. Vs. Visharat & Ors.
MACT No. 3164/16 Anita & Ors. Vs. Visharat & Ors. (Page No. 1 of 24) AND 2 nd Fatal Case MACT No. 3164/16 Smt Anita & Ors. Vs. Shri Visharat & Ors.
1. Smt Anita W/o Late Shri Jay Kirath Singh @ Jai Kishan (Mother of deceased)
2. Seamains S/o Late Shri Jai Kirath Singh @ Jai Kishan (Minor brother of deceased),
3. Shri Devendra Singh S/o Late Shri Shiv Charan Singh (Grandfather of deceased) All R/o Village 292, Geluwa, Tehsil & District Sambhal, Moradabad, UP and presently at: C449, Sanjay Colony, Okhla, PhII, New Delhi110020.
(Petitioner No. 2, being minor, is represented through his natural guardian/ mother/ petitioner No. 1) .......................... Petitioners/claimants Versus
1. Shri Visharat S/o Shri Jakawat Hussain (Driver), R/o H. No. 1063, Hayat Nagar Sambhal, Moradabad, Uttar Pradesh.
2. Shri Kamar Ali S/o Shri Rafat Ali (Owner), R/o 92, Moh. Jagat, PS Kotwali Nagar, Moradabad, Uttar Pradesh.
3. Shriram General Insurance Co. Ltd. (Insurer) (Through Manager) Branch Office: K18, 2nd Floor, Lajpat NagarII, New Delhi.
.....................Respondents
Date of Institution : 04.01.2016
Date of reserving the judgment : 12.04.2017
Date of pronouncement : 12.04.2017
MACT No. 3428/16 Anita & Ors. Vs. Visharat & Ors.
MACT No. 3164/16 Anita & Ors. Vs. Visharat & Ors. (Page No. 2 of 24) Common Judgment:
1. By way of common judgment, I shall decide both claim petitions filed by LRs of deceased persons namely Master Prince and Shri Jay Kirath Singh @ Jay Kishan for claiming compensation in regard to fatal injuries suffered by them in a road accident.
2. In MACT No. 3164/16, petitioner No. 1 is the mother, petitioner No. 2 is the brother and petitioner No. 3 is the grandfather of deceased Master Prince.
3. In MACT No. 3428/16, petitioner No. 1 is the wife, petitioner No. 2 is the son and petitioner No. 3 is the father of deceased Shri Jay Kirath Singh @ Jay Kishan.
4. Brief facts of the case is that on 22.10.2012 at about 06.00 PM, when petitioner No. 1/Smt Anita alongwith her minor son Prince (deceased in MACT No. 3164/16) and her husband Jai Kirath @ Jai Kishan (deceased in MACT No. 3428/16) were standing aside the road of Village Gelua for bus to go to Sambhal, offending TATA 709 truck bearing registration No. UP21AN0557, being driven by respondent No. 1 in a rash and negligent manner, hit petitioner No. 1 and both deceased persons and some other public persons also. Deceased Jai Kirath @ Jai Kishan died at the spot and minor deceased Prince died on the way to hospital.
5. FIR No: 104/12, under Section 279/337/338/304A IPC at PSSaid Nangli, District Amroha (UP) was got registered. Police conducted investigation and after completion of investigation, found respondent No. 1 accused of rash and negligent driving and hence chargesheeted him for commission of offence MACT No. 3428/16 Anita & Ors. Vs. Visharat & Ors.
MACT No. 3164/16 Anita & Ors. Vs. Visharat & Ors. (Page No. 3 of 24) under Section 279/338/304A IPC.
6. During proceedings, respondent No. 1 was served through substituted service through publication in newspapers despite which he did not appear. Respondent No. 1 was proceeded exparte on 13.02.2017.
7. During proceedings, written statement was filed by respondent No. 2 asserting that driver of vehicle bearing registration No. UP21AN0557 was holding a valid driving licence at the alleged time of accident. It is asserted that abovesaid vehicle of answering respondent was duly insured with M/s Shriram General Insurance Co. Ltd. on the alleged date of accident. Respondent No. 2 has denied all the allegations made in claim petitions.
8. During proceedings, written statement was filed on behalf of Insurance Company taking preliminary objection that petitioners have not disclosed any cause of action against answering respondent and as such petition is liable to be dismissed. It is asserted that alleged offending vehicle was being plied without valid permit and fitness and driver was not holding proper driving licence which amounts to willful breach of terms and conditions of insurance policy. It is asserted that answering respondent is entitled to defence available under Section 149/ 170 of Motor Vehicle Act. However, it is admitted that vehicle bearing registration No. UP21AN0557 was insured with answering respondent vide policy No. 17014/31/13/000726 for the period w.e.f. 17.05.2012 to 16.05.2013 in the name of respondent No. 2.
9. Following issues were framed on 13.02.2017:
1. Whether the deceased namely Jay Kirath Singh @ Jay Kishan / Master Prince received fatal injuries in a road accident which took place on MACT No. 3428/16 Anita & Ors. Vs. Visharat & Ors.
MACT No. 3164/16 Anita & Ors. Vs. Visharat & Ors. (Page No. 4 of 24) 22.10.2012 due to rash and negligent driving of involving offending vehicle bearing registration No. UP21AN0557 which was driven by respondent No. 1/ driver, owned by respondent No. 2/ owner and insured by respondent No. 3 (insurance company)?
2. To what amount petitioners are entitled to and against which of the respondents?
3. Relief.
10. Vide order dated 15.03.2017, both claim petitions were consolidated and the case bearing MACT No. 3428/16 was treated as lead case and it was also directed that evidence recorded in MACT No. 3428/16 shall be read in the other claim petition also.
11. During evidence, Smt Anita (wife of deceased Jay Kirath Singh @ Jay Kishan and mother of minor deceased Prince) got herself examined in MACT No. 3428/16 as PW1 and she tendered her evidence by way of affidavit which is Ex. PW1/A and relied upon certain documents i.e. copy of Aadhar Card of her son Simens is Ex. PW1/1, copy of her Aadhar Card is Ex. PW1/2, Parivar Register is Ex. PW1/3, copy of School Transfer Certificate of her deceased husband is Mark A, copy of High School Mark Sheet of her deceased son is Mark B, copy of Parcha Khatoni of agricultural land of her fatherinlaw is Ex. PW1/4, certified copy of FIR is Ex. PW1/5, certified copy of charge sheet is Ex. PW1/6, certified copy of Site Plan is Ex. PW1/7, certified copy of Postmortem of her deceased husband is Ex. PW1/8, certified copy of Mechanical Inspection Report of offending vehicle is Ex. PW1/9 and certified copy of Postmortem of her deceased son is Ex. PW1/10.
MACT No. 3428/16 Anita & Ors. Vs. Visharat & Ors.
MACT No. 3164/16 Anita & Ors. Vs. Visharat & Ors. (Page No. 5 of 24)
12. During evidence, eyewitness Shri Jasveer Singh was also examined by petitioners in MACT No. 3428/16 as PW2 and he tendered his evidence by way of affidavit which is Ex. PW2/A. He has deposed about the manner of accident.
13. No other witness was examined on behalf of petitioners.
14. Respondents have not examined any witness in their defence.
15. After hearing the arguments and considering the material on record, my issue wise finding is as under:
Issue No. 1 (Negligence):
16. Though PW1 Smt Anita has deposed in her affidavit of evidence that she was with both the deceased persons at the time of accident, but she herself admitted in her crossexamination that she has not witnessed the accident though she was present at the spot of accident. Petitioners have got examined an eyewitness to the accident i.e. PW2 Shri Jasveer Singh who has deposed that on 22.10.2012 at about 06.00 PM, he was waiting for bus at Bus Stand Geluwa, Uttar Pradesh where his covillagers namely Smt Anita, her husband and her minor son were also standing. He has deposed that a TATA 709 truck bearing registration No. UP21AN0557, being driven by its driver in a rash and negligent manner and with high speed, hit Smt Anita, her minor son, her husband and other persons namely Tasleem and Shamim. He has deposed that driver of offending truck fled away from the spot leaving behind offending truck. He has deposed that after the accident, police reached at the spot and recorded his statement and on the basis of statement FIR No. 104/12 was got registered at PS Said Nagali, District Amroha, UP against the driver of MACT No. 3428/16 Anita & Ors. Vs. Visharat & Ors.
MACT No. 3164/16 Anita & Ors. Vs. Visharat & Ors. (Page No. 6 of 24) offending truck. Certified copy of FIR is filed on record as Ex. PW1/5 which shows that PW2 is indeed the complainant in FIR. Nothing came in the cross examination of PW2 which could create any doubt on his testimony regarding the manner of accident. Further, certified copies of Postmortem Report of both deceased persons are filed on record as Ex. PW1/8 and Ex. PW1/10 mentioning cause of death of deceased persons as 'haematogenous shock as a result of antemortem injury'. Postmortem reports of deceased persons established the death of both deceased persons due to accidental injuries. Further, certified copy of Mechanical Inspection Report of offending vehicle is filed on record as Ex. PW1/9 wherein it is mentioned that bonnet and front mirror were found in damaged condition. It is also mentioned in Report Ex. PW1/9 that right side head light and right side indicator light were also found in damaged conditions. Hence, damages in Mechanical Inspection Report of offending vehicle proves involvement of offending vehicle in accident. Furthermore, certified copy of charge sheet is filed on record as Ex. PW1/6 which shows that after due investigation, police filed charge sheet against respondent No. 1 for commission of offence punishable under Section 279/338/304A IPC.
17. To determine the negligence of the driver of the offending vehicle, I am being guided by the judgment of Hon'ble High Court in case titled "Basant Kaur & Ors Vs. Chattar Pal Singh and Ors" [2003 ACJ 369 MP (DB)], wherein it has been held that registration of a criminal case against the driver of the offending vehicle is enough to record the finding that the driver of offending vehicle is responsible for causing the accident. Further it has been held in catena of cases that the proceedings under the Motor Vehicles Act are not akin to the proceedings as in civil suit and hence strict rules of evidence are not required to be followed in this regard. I am also being guided by the judgment of MACT No. 3428/16 Anita & Ors. Vs. Visharat & Ors.
MACT No. 3164/16 Anita & Ors. Vs. Visharat & Ors. (Page No. 7 of 24) Hon'ble High Court of Delhi in "National Insurance Company Limited Vs. Pushpa Rana" (2009 ACJ 287), wherein it was held that in case the petitioner files the certified copy of the criminal record or the criminal record showing the completion of the investigation by the police or the issuance of charge sheet under Section 279/304 A IPC or the certified copy of the FIR or in addition the recovery memo or the mechanical inspection report of the offending vehicle, these documents are sufficient proof to reach to the conclusion that the driver was negligent. It is also settled law that the term rashness and negligence has to be constructed lightly while making a decision on a petition for claim for the same as compared to the word rashness and negligence as finds mention in the Indian Penal Code. This is because the chapter in the Motor Vehicle Act dealing with compensation is a benevolent legislation and not a penal one.
18. In view of the above discussion and circumstances surrounding accident, it is proved that both deceased persons suffered fatal injuries due to rash and negligent driving of offending vehicle by R1. Accordingly, issue No. 1 is decided in favour of the petitioners and against the respondents i.e. driver, owner and insurer of offending vehicle.
Issue No. 2 (Compensation):
Compensation payable to petitioners in MACT No. 3164/16
19. Hon'ble Apex Court in Sarla Verma Vs. DTC (AIR 2009 SC 3104) comprehensively dealt with the relevant principals relating to the assessment of compensation in death cases. Apex Court in this case observed that in fatal accident, the measure of damage is pecuniary loss suffered or is likely to be suffered by each dependent as a result of death, and basically only three facts need to be established by the claimants for assessing compensation in case of death : (a) age of the deceased or claimant whichever is higher, (b) income of MACT No. 3428/16 Anita & Ors. Vs. Visharat & Ors.
MACT No. 3164/16 Anita & Ors. Vs. Visharat & Ors. (Page No. 8 of 24) the deceased and (c) number of dependents.
20. As per copy of High School Mark Sheet Mark B, date of birth of deceased Prince was 01.08.1996. Date of accident is 22.10.2012 which implies that deceased was aged about 16 years. In the case of 'R.K. Malik Vs. Kiran Pal' 2009 Law Suit (SC) 813, it has been held that the notional income of a child may be taken as 15,000/ per annum, as provided in the Second Schedule. As per case titled 'Chetan Malhotra Vs. Lala Ram' MAC App. No. 554/2010 decided on 13.05.2016, it was observed by Hon'ble High Court of Delhi that the notional income of nonearning persons (Rs.15,000/ per annum) as specified in the Second Schedule, shall be assumed to be the income of the deceased child, and taking into account the inflation, it is corrected with the help of Cost Inflation Index (CII) as notified by Government of India from year to year under Section 48 of Income Tax Act, 1961, by applying the formula of Rs.15,000/ X A / 331. For inflation correction, financial year of 199798 shall be treated as the 'base year'. 'A' in the aforementioned formula 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'.
21. For ready reference, the rates of Cost Inflation Index (CII) notified by Government of India till date, are reproduced as under:
Financial CII
Year
Before 100
1.4.1981
198182 100
MACT No. 3428/16 Anita & Ors. Vs. Visharat & Ors.
MACT No. 3164/16 Anita & Ors. Vs. Visharat & Ors. (Page No. 9 of 24) 198283 109 XXX XXX 199798 331 199899 351 199900 389 200001 406 200102 426 200203 447 200304 463 200405 480 200506 497 200607 519 200708 551 200809 582 200910 632 201011 711 201112 785 201213 852 201314 939 201415 1024 201516 1081 201617 1125
22. Hence, inflationcorrected income of deceased comes out to be (Rs.15,000/ X 852 /331) Rs.38,610.2 per annum which is rounded of to Rs.38,611/ per annum.
23. Deduction towards personal and living expenses: In case titled 'Chetan Malhotra' (supra), Hon'ble Delhi High Court has held that a deduction of 1/3rd (onethird) is to be made towards personal and living expenses where MACT No. 3428/16 Anita & Ors. Vs. Visharat & Ors.
MACT No. 3164/16 Anita & Ors. Vs. Visharat & Ors. (Page No. 10 of 24) notional income is considered for nonearning persons, as per Second Schedule. Hence, income of deceased is taken as (Rs.38,611/ minus Rs.12,870.3) Rs.25,740.7 per annum which is rounded off to Rs.25,741/ per annum.
24. Multiplier: Deceased was 16 years old at the time of accident. Appropriate multiplier is 18.
25. Total pecuniary loss of estate comes out to be Rs.4,63,338/ (Rs.25,741/ X
18).
26. Nonpecuniary damage: It was observed by Hon'ble Delhi High Court in case titled 'Chetan Malhotra' (supra) that a composite sum equal to the amount computed as pecuniary loss to estate may be added as nonpecuniary damage (inclusive of conventional compensation and for future prospects), in such cases as at hand to arrive at the appropriate figure of 'just compensation'. In terms of abovesaid judgment, petitioners are also awarded Rs.4,63,338/ towards nonpecuniary losses.
27. The total amount of compensation to be paid to the petitioners is as under :
Pecuniary loss of estate Rs.4,63,338/
NonPecuniary Losses
Rs.4,63,338/
Total
Rs.9,26,676/
Hence, the petitioners are awarded a total amount of Rs.9,26,676/ (Rupees Nine Lac Twenty Six Thousand Six Hundred & Seventy Six Only).
MACT No. 3428/16 Anita & Ors. Vs. Visharat & Ors.
MACT No. 3164/16 Anita & Ors. Vs. Visharat & Ors. (Page No. 11 of 24) Compensation payable to petitioners in MACT No. 3428/16:
28. Hon'ble Apex Court in Sarla Verma Vs. DTC (AIR 2009 SC 3104) comprehensively dealt with the relevant principals relating to the assessment of compensation in death cases. Apex Court in this case observed that in fatal accident, the measure of damage is pecuniary loss suffered or is likely to be suffered by each dependent as a result of death, and basically only three facts need to be established by the claimants for assessing compensation in case of death : (a) age of the deceased or claimant whichever is higher, (b) income of the deceased and (c) number of dependents.
29. Age of deceased: As per School Transfer Certificate Mark A and PAN Card No. AHOPJ7288G, date of birth of deceased was 01.01.1975. Date of accident is 22.10.2012 which implies that deceased was aged about 37 years at the time of accident. Thus, relevant multiplier in the present case is 15.
30. Income: Petitioners have claimed that deceased was having agricultural land and four buffaloes and he used to sell milk and was earning Rs.20,000/ per month. In this regard, PW1 has filed copy of Parcha Khatoni of agricultural land of her fatherinlaw as Ex. PW1/4. However, perusal of documents filed on record shows that there is nothing on record to show monthly income of deceased. PW1 has also admitted during her crossexamination that she has not filed any income proof of her deceased husband. In such circumstances, monthly income of deceased can be taken as per minimum wages for an unskilled workman as prevalent in UP at the time of accident, which was Rs.100/ per day or Rs.3,000/ per month. Hence, monthly income of deceased for the assessment of loss of dependency is taken as Rs.3,000/ per month.
MACT No. 3428/16 Anita & Ors. Vs. Visharat & Ors.
MACT No. 3164/16 Anita & Ors. Vs. Visharat & Ors. (Page No. 12 of 24)
31. Deduction for personal and living expenses: Deceased has left behind his wife, his father and minor son. Thus, as per Sarla Verma's case (supra), one third (1/3) income of the deceased is to be deducted towards personal and living expenses. Hence, income of deceased is to be taken as (Rs.3,000/ minus Rs.1,000/) Rs.2,000/ per month.
32. Future prospects: Learned counsel for petitioners has argued that future prospects of deceased should be considered. However, future prospects of deceased cannot be considered since his monthly income is assessed on the basis of minimum wages (Hon'ble Supreme Court in the case of Kerala State Road Transport Corporation Vs. Susamma Thomas (1994) 2 SCC 176; U.P SRTC Vs. Trilok Chandara (1996) 4 SCC 362; New India Assurance Co. Ltd. Vs. Shanti Pathak (Smt.) & Ors. (2007) 10 SCC 1 and Sarla Verma Vs. Delhi Transport Corporation (2009) 6 SCC 121 has held that in the case of self employed or those on a fixed salary, the element of future prospects cannot be factored in. These judgments have been referred to in the case of Ram Dayal & Anr. Vs. Ram Nibash & Ors. MAC Application No.1012/2015 decided on 21.01.2016 (Hon'ble Delhi High Court) and held that in the case of Minimum Wages, no future prospects can be granted).
33. Loss of dependency: (Rs.2,000/ X 12 X 15) Rs.3,60,000/.
34. Hon'ble apex court in case titled 'Rajesh & Ors. Vs. Rajbir Singh & Ors' [2013(6) SCALE 563] directed Tribunals that irrespective of the claims made in the application, the Tribunals are required to award compensation which should be just equitable and reasonable. In this regard, the Hon'ble Apex Court MACT No. 3428/16 Anita & Ors. Vs. Visharat & Ors.
MACT No. 3164/16 Anita & Ors. Vs. Visharat & Ors. (Page No. 13 of 24) revisited the amount of compensation under conventional heads of loss of consortium, loss of love and affection and funeral expenses. Apex Court in para no. 20 & 21 held as under:
"20. The ratio of a decision of this Court, on a legal issue is a precedent. But an observation made by this Court, mainly to achieve uniformity and consistency on a socioeconomic issue, as contrasted from a legal principle, though a precedent, can be, and in fact ought to be periodically revisited, as observed in Santosh Devi (Supra). We may, therefore, revisit the practice of awarding compensation under conventional heads: loss of consortium to the spouse, loss of love, care and guidance to children and funeral expense. It may be noted that the sum of Rs. 2,500/ to Rs. 10,000/ in those heads was fixed several decades ago and having regard to inflation factor, the same needs to be increased. In Sarla Verma's case (Supra), it was held that compensation for loss of consortium should be in the range of Rs. 5000/ to Rs. 10,000/. In Legal parlance, 'consortium' is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. That nonpecuniary head of damage has not been properly understood by our Courts. The loss of companionship, love, care and protection, etc., the spouse is entitled to get, has to be compensated appropriately. The concept of nonpecuniary damage for loss of consortium is one of the major heads of award of compensation in other parts of the world more particularly in the United States of America, Australia, etc. English Courts have also recognized the right of a spouse to get compensation even during the period of temporary disablement. By loss of consortium, the courts have made an attempt to compensate the loss of spouse's affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise MACT No. 3428/16 Anita & Ors. Vs. Visharat & Ors.
MACT No. 3164/16 Anita & Ors. Vs. Visharat & Ors. (Page No. 14 of 24) adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are of the view that it would only be just and reasonable that the courts award at least rupees one lakh for loss of consortium.
21. We may also take judicial notice of the fact that the Tribunals have been quite frugal with regard to award of compensation under the head of 'funeral Expenses'. The 'Price Index', it is a fact has gone up in that regard also. The head 'Funeral Expenses' does not mean the fee paid in the crematorium or fee paid for the use of space in the cemetery. There are many other expenses in connection with funeral and if the deceased is follower of any particular religion, there are several religious practices and conventions pursuant to death in a family. All those are quite expensive. Therefore, we are of the view that it will be just, fair and equitable, under the head of 'Funeral Expenses', in the absence of evidence to the contrary for higher expenses, to award at least an amount of Rs. 25,000/".
35. Funeral Expenses: Though PW1 has not filed any documentary evidence regarding funeral expenses, but considering the facts and circumstances of the present case and the mandate of the above judgment, a sum of Rs.25,000/ is granted towards funeral expenses.
36. Loss of love and affection: Considering the facts and circumstances of the present case and the mandate of the above judgment, a sum of Rs.1,00,000/ is granted to petitioners towards loss and affection.
37. Loss of consortium: Considering the facts and circumstances of the present case and the mandate of the above judgment, a sum of Rs.1,00,000/ is MACT No. 3428/16 Anita & Ors. Vs. Visharat & Ors.
MACT No. 3164/16 Anita & Ors. Vs. Visharat & Ors. (Page No. 15 of 24) granted to petitioners towards loss of consortium.
38. Loss of Estate:The petitioners are also entitled for loss of estate in respect of death of deceased. Accordingly, an amount of Rs.10,000/ is passed in favour of the petitioners towards loss of estate.
39. The total compensation is assessed as under : S. No. Description Amount 1 Loss of Dependency Rs.3,60,000/ 2 Funeral Expenses Rs. 25,000/ 3 Loss of Love & Affection Rs.1,00,000/ 4 Loss of Estate Rs. 10,000/ 5 Loss of Consortium Rs.1,00,000/ Total Rs.5,95,000/ Hence, the petitioners are awarded a total amount of Rs.5,95,000/ (Rupees Five Lac and Ninety Five Thousand Only).
RELIEF:
40. I hereby award an amount of Rs.9,26,676/ (Rupees Nine Lac Twenty Six Thousand Six Hundred & Seventy Six Only) to petitioners in MACT No. 3164/16 and an amount of Rs.5,95,000/ (Rupees Five Lac and Ninety Five Thousand Only) to petitioners in MACT No. 3428/16 alongwith interest @ 9% per annum from the date of filing of petitions till the date of realization is passed in favour of petitioners against the respondents on account of their liability being joint and several.
41. Respondent No. 3, being insurer of the offending vehicle at the time of MACT No. 3428/16 Anita & Ors. Vs. Visharat & Ors.
MACT No. 3164/16 Anita & Ors. Vs. Visharat & Ors. (Page No. 16 of 24) accident, is liable to pay compensation and to indemnify the insured/ owner.
42. Share of petitioners in award amount in MACT No. 3164/16 Smt Anita (mother of deceased) : Rs.6,26,676/ Seamains (minor brother of deceased) : Rs.3,00,000/
43. Release of awarded amount in MACT No. 3164/16:
i) Smt Anita (mother of deceased): A sum of Rs.6,26,676/ alongwith proportionate interest thereon, is awarded to Smt Anita being wife of the deceased. Out of this amount, Rs.1,26,676/ alongwith proportionate interest be immediately released to her on realization. And for balance amount of Rs.5,00,000/ alongwith proportionate interest thereon be kept in form of FDRs in the following phased manner :
1. Rs.1,00,000/for period of 1 year
2. Rs.1,00,000/ for period of 2 years
3. Rs.1,00,000/ for period of 3 years
4. Rs.1,00,000/for period of 4 years
5. Rs.1,00,000/ for period of 5 years
ii) Seamains (minor brother of deceased): A sum of Rs.3,00,000/ alongwith proportionate interest thereon, is awarded to Seamains being minor brother of the deceased and the same shall be kept in the form of FDR till he attains the age of 21 years.
44. Share of petitioners in award amount in MACT No. 3428/16 Smt Anita (wife of deceased) : Rs.4,00,000/ Seamains (minor son of deceased) : Rs.1,45,000/ MACT No. 3428/16 Anita & Ors. Vs. Visharat & Ors.
MACT No. 3164/16 Anita & Ors. Vs. Visharat & Ors. (Page No. 17 of 24) Devendra Singh (father of deceased) : Rs.50,000/
45. Release of awarded amount in MACT No. 3428/16:
i) Smt Anita (wife of deceased): A sum of Rs.4,00,000/ alongwith proportionate interest thereon, is awarded to Smt Anita being wife of the deceased. Out of this amount, Rs.1,00,000/ alongwith proportionate interest be immediately released to her on realization. And for balance amount of Rs.3,00,000/ alongwith proportionate interest thereon be kept in form of FDRs in the following phased manner :
1. Rs.50,000/for period of 1 year
2. Rs.50,000/ for period of 2 years
3. Rs.50,000/ for period of 3 years
4. Rs.50,000/for period of 4 years
5. Rs.50,000/ for period of 5 years
6. Rs.50,000/ for period of 6 years
ii) Seamains (minor son of deceased): A sum of Rs.1,45,000/ alongwith proportionate interest thereon, is awarded to Seamains being minor brother of the deceased and the same shall be kept in the form of FDR till he attains the age of 21 years.
iii) Devendra Singh (father of deceased): A sum of Rs.50,000/ alongwith proportionate interest thereon, is awarded to Devendra Singh being father of the deceased and the same be immediately released to him.
Deposition of awarded amount with STATE BANK OF INDIA, Saket Court Branch, New Delhi.
46. In terms of the directions given by Hon'ble High Court in case titled "Rajesh MACT No. 3428/16 Anita & Ors. Vs. Visharat & Ors.
MACT No. 3164/16 Anita & Ors. Vs. Visharat & Ors. (Page No. 18 of 24) Tyagi Vs. Jaibir Singh and Ors." bearing FAO number 842/2003 decided on 08.06.2009, UCO Bank/State Bank of India has agreed to open a Special Fixed Deposit Account for the victims of road accidents.
47. As per orders of Hon'ble High Court in case titled " New India Assurance Co.
Ltd. Vs. Ganga Devi & ors. Bearing MAC. App.135/2008" as well as in another case titled as "Union of India Vs. Nanisiri" bearing MAC Appeal No. 682/2005 dated 13.01.2010, directions were given to the Claims Tribunal to deposit part of the awarded amount in fixed deposit in a phased manner depending upon the financial status and financial needs of the claimants.
48. In consonance to the idea by which part of the awarded amount is ordered to be kept in fixed deposit/savings account by Hon'ble High Court, respondent No. 3/Insurance Company is directed to deposit the awarded amount in favour of the petitioners with State Bank of India, Saket Courts Complex Branch, against account of petitioners. Within a period of 30 days from today, failing which respondent No. 3/Insurance Company shall be liable to pay future interest @ 12% per annum till realization (for the delayed period).
49. Upon the aforesaid amount being deposited, the State Bank of India, Saket Court Complex, New Delhi, is directed to keep the awarded amount in the "Fixed deposit/saving account" in the following manner:
(i) The interest on the fixed deposit be paid to the petitioners/claimants by Automatic Credit of interest of their saving bank accounts with State Bank of India, Saket Court Branch, New Delhi.
(ii) Withdrawal from the aforesaid account shall be permitted to claimants/ petitioners after due verification and the Bank shall issue photo identity Card to MACT No. 3428/16 Anita & Ors. Vs. Visharat & Ors.
MACT No. 3164/16 Anita & Ors. Vs. Visharat & Ors. (Page No. 19 of 24) claimants/petitioners to facilitate identity.
(iii) No cheque book be issued to claimants/petitioners without the permission of this Court.
(iv) The original fixed deposit receipts shall be retained by the Bank in safe custody. However, the original pass Book shall be given to the claimants/ petitioners alongwith photocopy of the FDR's.
(v) The original fixed deposit receipts shall be handed over to claimants/ petitioners at the end of the fixed deposit period.
(vi) No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the permission of this Court.
(vii) Half yearly statement of account be filed by the Bank in this court.
(viii) On the request of claimants/petitioners, the Bank shall transfer the Savings Account to any other branch of State Bank of India, according to their convenience.
(ix) Claimants/petitioners shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit Account to Branch Manager, State Bank of India, Saket Courts Complex Branch, New Delhi.
50. Respondent No. 3/Insurance Company shall intimate to the claimants/petitioners about it having deposited the cheque in favour of petitioners in terms of the award, at the address of the petitioners mentioned at the title of the award, so as to facilitate them to withdraw the same.
51. Copy of this order be given dasti to the parties and copy be also sent to Manager, SBI, Saket Court Branch, New Delhi for compliance.
52. FormIV of the Modified Claims Tribunal Agreed Procedure to be mentioned in the Award is as under:
MACT No. 3428/16 Anita & Ors. Vs. Visharat & Ors.
MACT No. 3164/16 Anita & Ors. Vs. Visharat & Ors. (Page No. 20 of 24) 1 Date of the accident 22.10.2012 MACT No. 3428/16 Anita & Ors. Vs. Visharat & Ors.
MACT No. 3164/16 Anita & Ors. Vs. Visharat & Ors. (Page No. 21 of 24) 2 Date of intimation of the accident No applicable as accident by the Investigating Officer to the occurred out of Delhi and Claims Tribunal. DAR was not filed.
3 Date of intimation of the accident No applicable as accident by the Investigating Officer to the occurred out of Delhi and Insurance Company. DAR was not filed.
4 Date of filing of Report under Not known.
Section 173 Cr.P.C. before the Metropolitan Magistrate.
5 Date of filing of Detailed Accident No applicable as accident Information Report (DAR) by the occurred out of Delhi and Investigating Officer before DAR was not filed.
Claims Tribunal.
6 Date of service of DAR on the No applicable as accident
Insurance Company. occurred out of Delhi and
DAR was not filed.
7 Date of service of DAR on the No applicable as accident
claimant(s). occurred out of Delhi and
DAR was not filed.
8 Whether DAR was complete in all No applicable as accident
respects? occurred out of Delhi and
DAR was not filed.
9 If not, state deficiencies in the No applicable as accident
DAR? occurred out of Delhi and
DAR was not filed.
10 Whether the police has verified the No applicable as accident
documents filed with DAR? occurred out of Delhi and
DAR was not filed.
11 Whether there was any delay or No applicable as accident
deficiency on the part of the occurred out of Delhi and
Investigating Officer? If so, DAR was not filed.
whether any action/ direction
warranted?
12 Date of appointment of the No applicable as accident
Designated Officer by the occurred out of Delhi and
Insurance Company. DAR was not filed.
MACT No. 3428/16 Anita & Ors. Vs. Visharat & Ors.
MACT No. 3164/16 Anita & Ors. Vs. Visharat & Ors. (Page No. 22 of 24) 13 Name, address and contact No applicable as accident number of the Designated Officer occurred out of Delhi and of the Insurance Company. DAR was not filed.
14 Whether the Designated Officer of No applicable as accident the Insurance Company submitted occurred out of Delhi and his report within 30 days of the DAR was not filed.
DAR?
15 Whether the Insurance Company Insurance Company denied
admitted the liability? If so, liability.
whether the Designated Officer of
the Insurance Company fairly
computed the compensation in
accordance with law.
16 Whether there was any delay or No applicable as accident
deficiency on the part of the occurred out of Delhi and
Designated Officer of the DAR was not filed.
Insurance Company? If so,
whether any action/direction
warranted?.
17 Date of response of the claimant(s) No applicable as no legal
to the offer of the Insurance offer was filed.
Company.
18 Date of the award. 12.04.2017.
19 Whether the award was passed No.
with the consent of the parties?
20 Whether the claimant(s) examined No petitioners were not
at the time of passing of the award examined in both claim
to ascertain his/their financial petitions at the time of
condition? passing of award, but their
financial condition was
asked and according to their
financial condition and age,
award amount is directed to
be kept in the form of FDRs.
21 Whether the photographs, Photo ICard and other
specimen signatures, proof of requisite information was
residence and particulars of bank already on record.
MACT No. 3428/16 Anita & Ors. Vs. Visharat & Ors.
MACT No. 3164/16 Anita & Ors. Vs. Visharat & Ors. (Page No. 23 of 24) account of the injured/legal heirs of the deceased taken at the time of passing of the award?
22 Mode of disbursement of the Part award amount is award amount to the claimant(s). released immediately and rest is kept in the form of FDRs.
23 Next Date for compliance of the 11.05.2017.
award.
Announced in open Court (MADHU JAIN) Dated: 12.04.2017 PO : MACT02, (SOUTH EAST DISTRICT) SAKET COURTS/NEW DELHI/12.04.2017
MACT No. 3428/16 Anita & Ors. Vs. Visharat & Ors.
MACT No. 3164/16 Anita & Ors. Vs. Visharat & Ors. (Page No. 24 of 24)