Delhi District Court
Smt. Rubina & Ors. vs . Mukeshwar Yadav & Ors. Page 1 Of 24 on 4 July, 2022
MACP No. 7036/16; FIR No. 283/16
IN THE COURT OF SH. VINOD YADAV,
PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNAL,
NORTH DISTRICT,ROHINI COURTS, DELHI
MAC Petition No. 7036/16
1. Smt. Rubina,
W/o Late Sh. Iqbal,
(Widow of deceased)
2. Baby Akshra,
D/o Late Sh. Iqbal,
(Daughter of deceased)
3. Ayan,
S/o Late Sh. Iqbal,
(Son of deceased)
4. Baby Aliya,
D/o Late Sh. Iqbal,
(Daughter of deceased)
5. Baby Ruhee,
D/o Late Sh. Iqbal,
(Daughter of deceased)
6. Sugra,
W/o Sh. Wasiludin,
(Mother of deceased)
7. Wasiludin,
S/o Sh. Rahmat Khan,
(Father of deceased)
Smt. Rubina & Ors. Vs. Mukeshwar Yadav & Ors. Page 1 of 24
MACP No. 7036/16; FIR No. 283/16
All R/o D473/2, Gali No. 4,
Rajeev Nagar, Bhalaswa,
Pansali, Delhi.
.......Petitioners
VERSUS
1. Sh. Mukeshwar Yadav,
S/o Sh. Jageshwar Yadav,
R/o Village Belhi,
PS. Lakhnour,
District Madhubani,
Bihar.
(Driver)
2. Mohd. Javed,
S/o Sh. Shahjahan,
R/o 46, Pul Prahladpur Village,
New Delhi.
(Registered owner)
3. The Oriental Insurance Co. Ltd.,
RO: I, F14, Bombay Life Building,
Connaught Place,
New Delhi.
(Insurer)
.......Respondents
Date of Institution : 05.12.2016
Date of Arguments : 04.07.2022
Date of Decision : 04.07.2022
APPEARANCES:
Sh. Anoop Kumar Pandey, adv for petitioners/Lrs of deceased. Sh. Pradeep Ahlawat, Ld. Counsel for driver and owner. Sh. Radhey Shyam, Ld. Counsel for insurance co.
Smt. Rubina & Ors. Vs. Mukeshwar Yadav & Ors. Page 2 of 24MACP No. 7036/16; FIR No. 283/16 Petition under Section 166 & 140 of M.V. Act, 1988 for grant of compensation AWARD
1. The petitioner has filed the present claim petition U/s 166/140 M.V Act seeking compensation to the tune of Rs. 40,00,000/ from the date of accident till its realization for the fatal injury sustained by Sh. Iqbal (deceased in the present case) in Motor Vehicular Accident which occurred on 06.07.2016 at about 5:20 AM, near Village Narsingpur, NH8, PS. Kherki Daula, Gurgaon, involving Truck bearing registration no. HR55L0206 (offending vehicle) which was allegedly lying parked dangerously on the road without displaying parking lights, indicators, reflectors, or any other signals/signs by respondent no. 1.
2. It is averred that Iqbal was aged about 28 years; he was a Car Mechanic by profession and was earning Rs. 15,000/ to Rs. 20,000/ per month at the time of accident. On 06.07.2016, Sh. Iqbal (deceased herein) alongwith his friend Anand was going to Gurgaon, Haryana from Delhi by motorcycle which was being driven by Iqbal at a normal speed and on correct side of the road and Anand Kumar was sitting as pillion rider. At about 5:15 AM, when the aforesaid motorcycle reached near Village Narsingpur, NH8, PS. Kherki Daula, Gurgaon, where a truck bearing registration no. HR55L0206 which was lying parked in the middle of the road, without any indication and safety measures, without any branch of Smt. Rubina & Ors. Vs. Mukeshwar Yadav & Ors. Page 3 of 24 MACP No. 7036/16; FIR No. 283/16 tree or bricks, without any dipper lights, parking lights or blinking head lights or back lights or any other indication, without any proper safety of other passerby and rather in violation of the traffic rules, due to which Iqbal who was driving the motorcycle could not see the truck lying parked in the middle of the road and rammed into/dashed against the truck from its right rear portion. As a result of this, Iqbal and Anand sustained grievous injuries, due to which Iqbal died on the spot. He was taken to District Hospital, Gurgaon, Haryana, where his postmortem was conducted vide PMR No. YSG/367/2016 on 06.07.2016. FIR No. 283/16 U/s 283/304A/337/427 IPC was registered at PS. Khaidki Daula with regard to said accident. It is further averred that the offending truck was owned by respondent no. 2 and same was insured with The Oriental Insurance Company Limited/Respondent no.3. Thus, all the respondents are jointly and severally liable to pay the compensation amount.
3. In their joint written statement, the respondents no. 1 & 2 i.e. driver and registered owner have raised preliminary objections that the respondent no. 1 never committed any kind of accident while driving the truck bearing no. HR55L0206 as alleged by the petitioner on 06.07.2016. They claimed that the respondent no. 1 had parked his truck bearing registration no. HR55L0206 on the extreme left hand side of road after taking proper safety measures i.e. with dipper/parking lights and blinking headlights and back lights on, indicating that the truck was lying parked Smt. Rubina & Ors. Vs. Mukeshwar Yadav & Ors. Page 4 of 24 MACP No. 7036/16; FIR No. 283/16 there. They further claimed that deceased himself was driving his motorcycle at a very high speed and negligently and suddenly rammed into the truck of respondent no. 1. They also claimed that the respondent no. 1 was having valid driving licence and their vehicle was having proper fitness and national permit at the time of accident. On merits, they have denied the averments made in the claim petition and have prayed for its dismissal.
4. In its WS, the respondent no. 3/insurance company has claimed that there is contributory negligence on the part of the deceased since deceased himself hit the offending truck parked at the side of the road by his motorcycle. Thus, accident occurred due to sole negligence of deceased. It has admitted that vehicle bearing no. HR55L0206 was insured with it at the time of accident. It has denied the averments made in the claim petition and has prayed for its dismissal.
5. From pleadings of the parties, the following issues were framed by Ld. Predecessor vide order dated 24.04.2017:
1) Whether the deceased Iqbal had suffered fatal injuries in road traffic accident on 06.07.2016 at 5:20 AM, near Village Narsingpur, NH8, PS. Kheri Daula, Gurgaon, within the jurisdiction of PS. Out of Delhi due to rashness and negligence on the part of the driver Sh.
Mukeshwar Yadav who was driving truck bearing registration no. HR55L0206, owned by Mohd.
Smt. Rubina & Ors. Vs. Mukeshwar Yadav & Ors. Page 5 of 24MACP No. 7036/16; FIR No. 283/16 Javaid and insured with The Oriental Insurance Co. Ltd./R3?OPP.
2) Whether the Lrs of deceased are entitled to any compensation if so to what amount and from whom?OPP
3) Relief.
6. In support of their claim, the petitioners have examined two witnesses i.e. PW1 Smt. Rubina (widow of deceased) and PW2 Ct. Shiv Charan (eyewitness in the State Case) and their evidence was closed vide order dated 18.09.2019. The respondent no. 1 & 2 did not adduce any evidence and their evidence was closed vide order dated 03.12.2021. Respondent no. 3/insurance company has examined two witnesses i.e. Sh. Gyan Chand as R3W1 and Ms. Shobha Khatak as R3W2 and its evidence was also closed vide order dated 18.02.2020.
7. I have heard the arguments addressed by ld counsels for the parties. I have also gone through the record. My findings on the issues are as under: ISSUE NO. 1
8. For the purpose of this issue, the testimony of PW2 Ct. Shiv Charan (eyewitness in the State case) is relevant. He deposed in his Smt. Rubina & Ors. Vs. Mukeshwar Yadav & Ors. Page 6 of 24 MACP No. 7036/16; FIR No. 283/16 evidence that his statement was recorded u/s. 161 Cr. P.C and exhibited the same as Ex. PW2/1. During his crossexamination on behalf of respondents no. 1 & 2, he deposed that his statement u/s. 161 Cr. P.C was recorded on 06.07.2016 at around 5:30 AM on the spot by IO/Netrapal. He further deposed that he did not raise any objection before signing his statement. He further deposed that he was not aware whether the motorcyclist and the pillion rider wore the helmet or not at the time of alleged accident. He admitted that the alleged truck was stationed on the extreme left side of the road. He denied the suggestion that the alleged truck was parked with safety measures. He further denied the suggestion that the accident took place due to rash and negligent driving of the motorcyclist. He denied the suggestion that he was not the eyewitness of the present accident. During his crossexamination on behalf of insurance company, he deposed that at the time of accident, he was on duty from 8:00 pm to 8:00 am as rider 37 on motorcycle. He further deposed that he was at a distance of 50100 meter at the time of accident from the spot. He deposed that the number of the truck which caused the accident was HR55L0206. He further deposed that he had made a call to the police. He deposed that the injured was taken to the hospital in an ambulance.
9. Ld. Counsel for petitioners has heavily relied upon the criminal case record (Ex. PW1/10 colly) in order to bring home his point that the accident in question had occurred due to the negligent act of driver/R1 by Smt. Rubina & Ors. Vs. Mukeshwar Yadav & Ors. Page 7 of 24 MACP No. 7036/16; FIR No. 283/16 parking his vehicle dangerously on the road without any parking light ON, indicator, reflector, or any other signals/signs. He further argued that respondent no. 1 Mukeshwar Yadav was also chargesheeted by police for offences punishable U/s 283/304A/337/427 IPC, which clearly establish that the accident had occurred due to rash and negligent driving of aforesaid vehicle by respondent no. 1.
10. On the other hand, Ld. Counsel for insurance company vehemently argued that petitioners have failed to prove that the accident in question was caused due to the negligent act of driver/R1 by parking his vehicle dangerously on the road without any parking light ON, indicator, reflector, or any other signals/signs.
11. It is evident from the testimony of PW2 that the respondents could not impeach his testimony through litmus test of crossexamination and said witness is found to have successfully withstood the test of cross examination. Moreover, FIR No. 283/16(which is part of Ex. PW1/10 Colly) is shown to have been registered on the statement of this witness. The contents of said FIR would show that the complainant has disclosed therein the same sequence of facts leading to the accident. Thus, there is no reason to disbelieve the testimony of this witness made on oath.
Smt. Rubina & Ors. Vs. Mukeshwar Yadav & Ors. Page 8 of 24MACP No. 7036/16; FIR No. 283/16
12. Moreover, the respondent no. 1 /driver of the alleged offending vehicle was the other material witness who could have thrown sufficient light as to how and under what circumstances, the accident in question took place but still he preferred not to contest the claim petition. He did not enter into witness box during the course of inquiry. Thus, an adverse inference is liable to be drawn against him for not entering into the witness box, to the effect that the accident occurred due to wrong parking of his vehicle in the middle of the road.
13. Though, it is argued on behalf of respondents that a false case has been registered against the respondent no.1. A perusal of record shows that FIR No. 283/16 (supra) was registered at PS. Khaidki Daula on 06.07.2016 i.e. on the date of accident itself. Thus, FIR is shown to have been registered promptly and without any delay. Hence, there is no possibility of false implication of respondent no. 1 and/or false involvement of Truck bearing registration no. HR55L0206 at the instance of petitioners herein. Further, the respondent no.1 namely Mukeshwar (accused in State case) has been charge sheeted for offences punishable U/s 283/304A/337/427 IPC by the investigating agency after arriving at the conclusion on the basis of investigation carried out by it that the accident in question had occurred due to negligent act of driver/R1 of parking his vehicle dangerously on the road without any parking light ON, indicator, reflector, or any other signals/signs. The respondent has not challanged his Smt. Rubina & Ors. Vs. Mukeshwar Yadav & Ors. Page 9 of 24 MACP No. 7036/16; FIR No. 283/16 involvement as per the final report filed against him, before any Authority of Law.
14. Apart from above, copy of PM Report (which is part of criminal case record Ex. PW1/10 colly) of deceased, would show that his cause of death was injuries sustained in the road accident. The injuries as noted in the relevant column with regard to external injuries, as mentioned therein, are consistent with the injuries which are sustained in motor vehicular accident. Again, there is no challenge to the aforesaid document from the side of respondents.
15. It is evident from the record that the respondent no. 1 was chargesheeted for offence u/s. 283 IPC. Section 283 IPC defines as under:
283. Danger or obstruction in public way or line of navigation.--Whoever, by doing any act, or by omitting to take order with any property in his possession or under his charge, causes danger, obstruction or injury to any person in any public way or public line of navigation, shall be punished with fine which may extend to two hundred rupees.
16. In the light of aforesaid discussion, it can be safely held that the respondent no. 1 was negligent in parking his vehicle at the time of accident, due to which the accident in question occurred. Thus, it is held that the petitioners have been able to prove on the basis of pre ponderence of probabilities that Sh. Iqbal had sustained fatal injuries in road accident Smt. Rubina & Ors. Vs. Mukeshwar Yadav & Ors. Page 10 of 24 MACP No. 7036/16; FIR No. 283/16 which took place on 06.07.2016 at about 5:20 AM, near Village Narsingpur, NH8, PS. Kherki Daula, Gurgaon, involving Truck bearing registration no. HR55L0206(offending vehicle) which was allegedly being parked dangerously on the road without any parking light ON, indicator, reflector, or any other signals/signs by respondent no. 1. Thus, issue no. 1 is decided in favour of petitioners and against the respondents.
LOSS OF DEPENDENCY
17. The claimants/petitioners are the widow, children and parents of deceased. PW1 Smt. Rubina (widow of deceased) has deposed in her evidence by way of affidavit (Ex. PW1/A) that Iqbal was aged about 28 years; he was working as Car Mechanic and was earning Rs. 15,000/to Rs. 20,000/ per month at the time of accident. She further deposed that all the petitioners were fully dependent upon the income of deceased at the time of accident. She has relied upon the following documents: Serial Description of Remarks No. documents
1. Copy of DL of deceased Mark X
2. Copy of Aadhaar Card of Ex. PW1/1 deceased
3. Copies of Aadhaar Card of Ex. PW1/2 to petitioner no. 1 to 7 Ex. PW1/8
4. Copy of ration card Ex. PW1/9
5. Certified copy of criminal Ex. PW1/10(colly) case record Smt. Rubina & Ors. Vs. Mukeshwar Yadav & Ors. Page 11 of 24 MACP No. 7036/16; FIR No. 283/16
18. During her cross examination on behalf of respondents, she denied the suggestion that deceased was not working as a Car Mechanic. She further denied the suggestion that deceased was not earning Rs. 15,000/ to Rs. 20,000/ per month at the time of accident. She deposed that the deceased was having four brothers and two sisters at the time of accident. She denied the suggestion that her in laws were not residing with them or not dependent upon them at the time of accident and for that reason, they had not included their names in the Ration Card.
19. During the course of arguments, Ld. counsel for petitioners fairly conceded that for want of any cogent and definite evidence being led by petitioners regarding monthly income of deceased, his income may be considered as per Minimum Wages Act in order to calculate the loss of dependency. He however argued that future prospects should also be awarded to the petitioners as per law.
20. As already noted above, PW1 Rubina, who is widow of deceased has failed to file any document in her evidence to show that her deceased husband was earning Rs. 15,000/to Rs. 20,000/ per month at the time of accident. For want of cogent and definite evidence being led by petitioners with regard to actual monthly income of deceased, his notional monthly income is being taken as equivalent to that of an unskilled worker under Minimum Wages Act applicable during the relevant period. The Smt. Rubina & Ors. Vs. Mukeshwar Yadav & Ors. Page 12 of 24 MACP No. 7036/16; FIR No. 283/16 minimum wages of an unskilled worker were Rs. 9,568/ per month as on the date of accident which is 06.07.2016.
21. As per the case of petitioners, deceased Iqbal was aged about 28 years at the time of accident. It is pertinent to note that petitioners have filed copy of Aadhaar Card (Ex. PW1/1) of deceased, wherein date of birth of deceased is mentioned as 01.01.1988. The respondents have not disputed the said age of deceased as mentioned in the said document. They have also not led any evidence in order to controvert the said age of deceased as claimed by the petitioners. Thus, the age of deceased is accepted as 28 years at the time of accident. Hence, the multiplier of 17 would be applicable in view of pronouncement made by Constitutional Bench of Apex Court in the case titled as "National Insurance Company Ltd. Vs. Pranay Sethi & Ors." passed in SLP(Civil) No. 25590/14 decided on 31.10.17.
22. Considering the fact that deceased was aged about 28 years at the time of accident and was not having permanent job at that time, future prospects @ 40% has to be awarded in favour of petitioners in view of pronouncement made by Constitutional Bench of Apex Court in the case titled as "National Insurance Company Ltd. Vs. Pranay Sethi & Ors." mentioned supra, as well as in view of recent decision of Hon'ble Delhi High Court in appeal bearing MAC APP No. 798/2011 titled as "Bajaj Allianz Smt. Rubina & Ors. Vs. Mukeshwar Yadav & Ors. Page 13 of 24 MACP No. 7036/16; FIR No. 283/16 General Insurance Company Ltd. Vs. Pooja & Ors", decided on 02.11.17.
23. It is relevant to note here that there are seven petitioners in the present case i.e. widow, four minor children and parents of deceased. In view of the same, there has to be deduction of one fifth as held in the case of Sarla Verma mentioned supra. Thus, the total of loss of dependency would come out to Rs. 21,86,096.64 paise (Rs. 9,568/ X 4/5 X 140/100 X 12 X 17). Hence, a sum of Rs. 21,86,000/ (rounded off) is awarded under this head in favour of the petitioners.
LOSS OF LOVE & AFFECTION
24. After the celebrated judgment of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors. mentioned supra and recent judgment titled New India Assurance Company Limited versus Somwati & Ors., Civil Appeal no. 3093 of 2020 dated 07.09.2020 the petitioners are not entitled to be compensated under this head. Further Hon'ble Delhi High Court in appeal titled as "Bajaj Allianz General Insurance Company Ltd. Vs. Pooja & Ors", mentioned supra has been pleased to observe in para 18 of the judgment that the constitution bench decision in Pranay Sethi (supra) does not recognize any other nonpecuniary head of damages. Hence, no amount of compensation is being awarded under this head.
Smt. Rubina & Ors. Vs. Mukeshwar Yadav & Ors. Page 14 of 24MACP No. 7036/16; FIR No. 283/16 LOSS OF CONSORTIUM
25. In view of the judgment of Hon'ble Supreme Court in case titled as New India Assurance Company Limited versus Somwati & Ors., Civil Appeal no. 3093 of 2020, dated 07.09.2020 I am of the considered opinion that the widow, four children and parents of deceased are entitled for payment of Rs. 40,000/ each towards loss of consortium. Consequently, a sum of Rs. 2,80,000/ is awarded to the petitioners under this head.
LOSS OF ESTATE & FUNERAL EXPENSES
26. In view of the facts and circumstances of the present case and in view of decision of Hon'ble Apex Court in the case of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors." mentioned supra, a sum of Rs. 15,000/ each is awarded in favour of petitioners on account of loss of estate and funeral expenses.
The total compensation is assessed as under:
1. Loss of dependency Rs. 21,86,000/
2. Loss of consortium Rs. 2,80,000/
3. Loss of Estate & Funeral Rs. 30,000/ Expenses Total Rs. 24,96,000/ Smt. Rubina & Ors. Vs. Mukeshwar Yadav & Ors. Page 15 of 24 MACP No. 7036/16; FIR No. 283/16
27. Now, the question which arises for determination is as to which of the respondents is liable to pay the compensation amount. Counsel for insurance company sought to avoid the liability of insurance company to pay the compensation amount on the ground that the offending vehicle was not having any valid permit and fitness certificate at the time of accident in question. In order to substantiate the said plea, insurance company has examined Sh. Gyan Chand, Transport Sub Inspector, RTA, Gurugram, Haryana who produced the Permit Register. He further deposed that as per their record, Permit No. 6605/NP/10 in respect of vehicle i.e. Truck bearing registration no. HR55L0206 was issued in the name of M/s. K.N. Logistics Pvt. Ltd, having validity from 20.07.15 to 26.07.2016. He further deposed that said permit was transferred in the name of Indian Vehicle Carrier Pvt.Ltd having validity from 20.07.2016 to 20.07.2020 vide entry no. 189234/64 dated 03.04.2015 and exhibited the relevant entry as Ex. R3W1/1. During his crossexamination on behalf of respondent no. 1 & 2, he admitted that the above permit was transferred in the name of Md. Javaid S/o Shahjahan vide entry no. 193111/56 dated 17.11.2015 and exhibited the same as Ex. R3W1/X1.
28. R3W2 Ms. Shobha Khatak, Administrative Officer, Oriental Insurance Co. Ltd. Said witness has deposed in her evidence by way of affidavit Ex. R3W2/1 that the insurance company had sent the notice u/o 12 Rule 8 CPC to the respondents no. 1 & 2 for production of fitness certificate Smt. Rubina & Ors. Vs. Mukeshwar Yadav & Ors. Page 16 of 24 MACP No. 7036/16; FIR No. 283/16 of offending vehicle. However, despite service, they have failed to supply the copy of fitness certificate issued in the name of Sh. Javaid(R2). She has relied upon copy of insurance policy Ex. R3W2/A; copy of RC of offending vehicle Mark B; Copy of Fitness certificate Mark C, Fitness verification report of offending vehicle Ex. R3W2/D, notice u/o 12 Rule 8 CPC Ex. R3W2/E and its postal receipt as Ex. R3W2/F. During her cross examination on behalf of respondents no.1 & 2, she admitted that fitness of the alleged offending vehicle was valid as on the date of accident. She denied the suggestion that she had filed false and fabricated documents in order to avoid the liability of the insurance company.
29. Ld. Counsel for insurance company vehemently argued that since the deceased was not wearing any protective gear/helmet while he was riding the motorcycle at the time of accident, contributory negligence on his part is there and appropriate amount on account of contributory negligence should be deducted from the compensation amount awarded to the petitioners. On the other hand, Ld. counsel for claimant vehemently argued that there was no contributory negligence on the part of deceased and insurance company has failed to establish the said plea.
30. There is no substance in the said argument for the simple reason that no such plea is raised by insurance company in its WS. Moreover, there is no iota of evidence available on record to substantiate Smt. Rubina & Ors. Vs. Mukeshwar Yadav & Ors. Page 17 of 24 MACP No. 7036/16; FIR No. 283/16 this plea. Even otherwise, there is nothing on record that there was any kind of negligence on the part of deceased Iqbal in the occurrence of accident. It is nowhere the case of insurance company that any term or condition of insurance policy was breached/violated by insured.
31. The Ld. Counsel for insurance company has further argued that deceased Iqbal was himself negligent in driving the motorcycle as he was not wearing helmet and secondly, he failed to maintain sufficient distance with offending vehicle to avoid collision. He has referred few decisions of Hon'ble High Courts in this regard which are "Manjit Kaur & Ors. V. Alla Dutta & Ors.", FAO No. 272 of 2002, decided on 03.11.2016, Branch Manager, Oriental Insurance Co. Ltd., V. Indirani & Ors.", CMA (MD) Nos. 987 and 988 of 2014, decided on 13.02.2017 and "Mohinder Singh V. Lakhwinder Kaur & Ors.", FAO No. 6606 of 2014, decided on 22.01.2016.
32. I have gone through the said judgments and the same are not applicable in the facts and circumstances of the present case as here the respondent no. 1 has failed to comply the provisions of Section 122 of M.V. Act which is reproduced as under: "No person in charge of a motor vehicle shall cause or allow the vehicle or any trailer to be abandoned or to remain at rest on any public place in such a position or in such a condition or Smt. Rubina & Ors. Vs. Mukeshwar Yadav & Ors. Page 18 of 24 MACP No. 7036/16; FIR No. 283/16 in such circumstances as to cause or likely to cause danger, obstruction or undue inconvenience to other users of the public place or to the passengers".
33. As already discussed above in the preceding paragraphs even there is apparent violation of Section 283 IPC for which respondent no. 1 stands chargesheeted in the State case. This fact is coupled with the fact that the site plan filed on record in the State case clearly shows that the offending vehicle was standing in the middle of the road whereas after the accident, the motorcycle was found standing on the left side of the road. So this indicate that the offending vehicle was lying parked in a danger condition. Even the photographs of the spot shows that a helmet was lying near the motorcycle of deceased which shows that deceased was wearing helmet at the time of accident. Therefore, present case is not the case of contributory negligence.
34. Keeping in view the existence of valid insurance policy, respondent no. 3/insurance company becomes liable to pay the compensation amount, as insurance company is liable to indemnify the insured. Issue no. 2 is decided accordingly.
ISSUE NO. 3 RELIEF
35. In view of my findings on issues no. 1 and 2, I award a compensation of Rs. 24,96,000/ alongwith interest @ 9% per annum in Smt. Rubina & Ors. Vs. Mukeshwar Yadav & Ors. Page 19 of 24 MACP No. 7036/16; FIR No. 283/16 favour of petitioner and against the respondents w.e.f. date of filing of the petition i.e. 05.12.2016 till the date of its realization (Reliance placed on judgment "Oriental Insurance Company Ltd. Vs. Sangeeta Devi & Ors bearing MAC. APP. 165/2011 decided on 22.02.2016).
APPORTIONMENT
36. Statements of legal heirs of deceased in terms of Clause 29 MCTAP were recorded on 18.02.2020. In view of the facts and circumstances of the case and the said statements, it is hereby ordered that the petitioners no. 1 namely Rubina shall be entitled to share amount of Rs. 12,00,000/ (Rupees Twelve Lakhs Only) alongwith proportionate interest, the petitioner no. 2 to 5 namely Akshra, Ayan, Aliya and Ruhee shall be entitled to share amount of Rs. 2,00,000/each (Rupees Two Lakhs Only) alongwith proportionate interest and petitioner no. 6 & 7 namely Sugra and Wasiludin shall be entitled to remaining amount of Rs. 2,48,000/ each (Rupees Two Lakhs and Forty Eight Thousand Only) alongwith proportionate interest.
37. Out of share amount of petitioner no. 1, a sum of Rs. 2,50,000/ (Rupees Two Lakhs and Fifty Thousand Only) is directed to be immediately released to her through her Saving Bank Account No. 35949113789 with State Bank of India, A Block, Jahangir Puri, Delhi, Smt. Rubina & Ors. Vs. Mukeshwar Yadav & Ors. Page 20 of 24 MACP No. 7036/16; FIR No. 283/16 having IFSC Code. SBIN0004840 and remaining amount is directed to be kept in the form of FDRs in the multiples of Rs. 30,000/ each for one month, two months, three months and so on and so forth, having cumulative interest.
38. The entire share amounts alongwith interest of petitioner no. 2 to 5 be kept in FDRs for the period till they attain the age of majority and thereafter a sum of Rs. 50,000/ shall be released to them and remaining amount alongwith interest be kept in the form of FDRs in the multiples of Rs. 10,000/ each for a period of one month, two months, three months and so on and so forth, having cumulative interest. The petitioner no. 2 to 5 are at liberty to withdraw their monthly interest in order to meet their educational expenses through their mother/natural guardian.
39. The entire awarded amount of Rs. 2,48,000/ each (Rupees Two Lakhs and Forty Eight Thousand Only) shall be immediately released to petitioner no. 6 & 7 through their respective saving bank accounts, i.e. no. 37051367046 (of Smt. Sugra) with State Bank of India, A Block, Jahangir Puri, Delhi, having IFSC Code. SBIN0004840 and no. 10666914355 (of Sh. Wasiludin) with State Bank of India, A Block, Jahangir Puri, Delhi, having IFSC Code. SBIN0004840.
Smt. Rubina & Ors. Vs. Mukeshwar Yadav & Ors. Page 21 of 24MACP No. 7036/16; FIR No. 283/16
40. All the FDRs to be prepared as per aforesaid directions, shall be subject to the following conditions:
(a) The Bank shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the claimant(s) i.e. the savings bank account(s) of the claimant(s) shall be an individual savings bank account(s) and not a joint account(s).
(b) The 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 claimant(s).
(c) The monthly interest be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant(s) near the place of their residence.
(d) The maturity amounts of the FDR(s) be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant(s) near the place of their residence.
(e) No loan, advance, withdrawal or premature discharge be allowed on the fixed deposits without permission of the Court.
(f) The concerned bank shall not to issue any cheque book and/or debit card to claimant(s). However, in case the debit card and /or cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount. The bank shall debit card(s) freeze the account of the claimant(s) so that no debit card be issued in respect of the account of the claimant(s) from any other branch of the bank.
(g) The bank shall make an endorsement on the passbook of the claimant(s) to the effect that no cheque book and/or debit card have been issued and shall not be issued without the permission of the Court and Smt. Rubina & Ors. Vs. Mukeshwar Yadav & Ors. Page 22 of 24 MACP No. 7036/16; FIR No. 283/16 claimant(s) shall produce the passbook with the necessary endorsement before the Court on the next date fixed for compliance.
(h) It is clarified that the endorsement made by the bank alongwith the duly signed and stamped by the bank official on the passbook(s) of the claimant(s) is sufficient compliance of clause(g) above.
(i) The petitioner is directed to open a Motor Accident Claims Annuity (Term) Deposit Account (MACAD) in terms of order dated 07.12.2018 of Hon'ble Justice J.R. Midha in case titled as Rajesh Tyagi and Others Vs. Jaibir Singh and Others F.A.O No. 842/03 as per clause 31 of MCTAP and form VIII titled as Motor Accident Claims Annuity Deposit (MACAD) Scheme as directed in the said order.
(j) Concerned Manager, SBI, Rohini Court branch is further directed to disburse the FD amount in Motor Accident Claims Annuity Deposit (MACAD) Scheme account as directed by Hon'ble Delhi High Court vide order dated 07.12.18, on completing necessary formalities as per rules.
41. Respondent no. 3/Oriental Insurance Co. Ltd., being insurer of the offending vehicle, is directed to deposit the award amount with SBI, Rohini Courts branch within 30 days as per above order, failing which insurance company shall be liable to pay interest @ 12% p.a for the period of delay. Concerned Manager, SBI, Rohini Court Branch is directed to transfer the respective share amounts immediately to aforesaid petitioners in their aforesaid saving bank accounts, on completing necessary formalities as per rules. He be further directed to keep the said amount in fixed deposit in its own name till the claimants approach the bank for disbursement so that the award amount starts earning interest from the date of clearance of the cheques. Copy of the award be given dasti to Smt. Rubina & Ors. Vs. Mukeshwar Yadav & Ors. Page 23 of 24 MACP No. 7036/16; FIR No. 283/16 the petitioners and also to counsel for the insurance company for compliance. Copy of this award alongwith one photograph each, specimen signatures, copy of bank passbooks and copy of residence proof of the petitioners, be sent to Nodal Officer of SBI, Rohini Court, Branch, Delhi for information and necessary compliance. Form XV & XVII in terms of MCTAP are annexed herewith as AnnexureA. Copy of order be also sent to concerned M.M and DLSA as per clause 31 and 32 of MCTAP.
Announced in the open Court on 04.07.2022 (VINOD YADAV) Judge MACT2 (North) Rohini Courts, Delhi Certified that above award contains 24 pages and each page is signed by me.
(VINOD YADAV) Judge MACT2 (North) Rohini Courts, Delhi Smt. Rubina & Ors. Vs. Mukeshwar Yadav & Ors. Page 24 of 24