Delhi District Court
Rehana Khatoon vs Paramjeet Singh on 28 March, 2024
IN THE COURT OF SH.SHAILENDER MALIK, PRESIDING
OFFICER: MOTOR ACCIDENT CLAIMS TRIBUNAL-02,
SHAHDARA, KARKARDOOMA COURTS, DELHI
MACT No.1268/16
(1) Rehana Khatoon
W/o Late Sh. Sagir Dewan
(2) Master Ashlam
s/o Late Sh. Sagir Dewan
(3)Master Tayyab
s/o Late Sh. Sagir Dewan
(4) Sh. Bhikhari Dewan (father of deceased)
s/o Late sh. Khenhar Dewan
All r/o Village-Gahiri Kothi,
Mudaliya tola, Post Victoria Mishan, P. S. Nautan,
Distt. West Champaran, Bihar-845459
...Petitioners
Versus
(1) Paramjeet Singh
S/o Sh. Ujagar Singh
r/o Village & Post Sahar Kobal,
P.S. Hajipur, Distt. Hoisharpur, Punjab.
(2)Smt. Santosh Rani
W/o Sh. Sat Pal
R/o H No. 148, Durga Puri Extension,
Delhi.
(3)National Insurance Company Ltd.
2-E/9, Jhandewalan, Extn. Near Videocon Tower,
Karolbagh, New Delhi.
...Respondents
Digitally signed
MACT No.1268/2016 by SHAILENDER Page 1
SHAILENDER MALIK
MALIK Date: 2024.03.28
16:54:16 +0530
Date of Institution : 09.02.2015
Date of Arguments : 28.03.2024
Date of pronouncement : 28.03.2024
AWAR D
1. This is claim petition filed u/s 140 r/w 166 of M.V. Act, seeking compensation in respect of death of Sagir Dewan s/o Bhikhari Dewan in a roadside accident. It is stated in the claim petition that on 18.08.2013 at 03:30 AM deceased was proceeded towards Karnal from Larance Road Delhi by Truck bearing registration no. DL-1M-5466 with his helper relative. When he reached near Athenic India Hotel Rai, Sonipat, Truck Turbo bearing registration no. HR-38L-7689 was stated to be parked in middle of the main road by its driver without any indication, negligently and without taking care of traffic rules. Resultantly, the truck of deceased struck from behind the offending vehicle No. HR-38L-7689, due to which deceased suffered fatal injuries. It is mentioned in the claim petition that regarding the said accident FIR No. 219/13 was registered at PS Rai, Sonipat, u/s 283,304-A IPC. It is further stated that accident occurred due to rash and negligent driving of respondent no. 1/driver of offending vehicle HR-38L-7689. It is further mentioned in the claim petition that at the time of accident, deceased was only 24 years of age and was working as a driver in a private employee.
2. After service of notice, respondent no. 1/driver as well as respondent no. 2/owner of offending vehicle separately filed the WS taking the common plea therein that without admitting factum of alleged accident, it is pleaded that driver of the offending vehicle was having valid DL and offending vehicle bearing no. HR-38L-7689 was duly insured with National Insurance Company Limited (R3) under insurance policy no.
Digitally signedMACT No.1268/2016 SHAILENDER by SHAILENDER Page 2 MALIK MALIK Date: 2024.03.28 16:54:26 +0530
404501/31/12/6300001665 valid from 25.10.2012 to 24.10.2013. While denying the averments of the claim petition, it is denied that accident occurred due to the negligence of offending vehicle or that the offending vehicle was parked in between National Highway/main road.
3. Respondent no. 3/insurance company also filed WS taking an objection therein that claim petition is not maintainable as petitioners have not filed relevant documents along with petition. Moreover, accident occurred due to the negligence of the deceased as he hit his vehicle with stationary truck no. HR-38L-7689, there was no fault/negligence on the part of offending truck. It is further pleaded that insurance company is liable to pay the compensation only in case of proof of negligence on the part of Truck No. HR-38L-7689, in that case, it is also required to prove that driver was having valid DL at the time of accident and the offending vehicle was holding valid permit and fitness certificate. Insurance company also took a plea in terms of Section 147 and 149 of M.V. Act and other averments of the claim petition were denied.
4. On the basis of pleadings as come on judicial record, following issues were framed by Ld. Predecessor of this Tribunal on 04.08.2017.
(1)Whether respondent no.1 has negligently parked his truck bearing no. HR-38L-7689 on 18.08.2013 at 03:30 am near Athinic India Hotel, Rai, District Sonipat, Haryana as a result truck bearing no. DL-1M-5466 hit against truck bearing no.
HR-38L-7689 and occupant of truck no. DL-1M-5466 namely Sagir Dewan sustained fatal injuries? OPP (2)Whether the petitioners are entitled for any compensation, if so, and for what amount? OPP Digitally signed by MACT No.1268/2016 SHAILENDER SHAILENDER Page 3 MALIK MALIK Date: 2024.03.28 16:54:35 +0530 (3)Relief
5. It is matter of record that on the same day Ld. Predecessor of this tribunal also decided awarding of interim compensation of Rs. 50,000/- for petitioners.
6. I have heard submissions of Sh. Lokesh Kumar, ld. Counsel for the petitioner, Sh. Nishikant Pandey, Ld. Counsel for respondent no. 1 and 2 as well as Ms. Anjana Sirohi, ld. Counsel for insurance company/R3. I have also gone through the written arguments filed on behalf of petitioner as well as Insurance company. My issue wise findings are as under:
Issue No.1
7. On the aspect of rash and negligent driving, it is the settled proposition of law that an action founded on the principle of fault liability, the proof of rash and negligent driving of the offending vehicle is sine qua non. However, the standard of proof is not as strict as applied in criminal cases and evidence is to be tested on the touchstone of preponderance of probabilities. Holistic view is to be taken while dealing with the Claim Petition based upon negligence. Strict rules of evidence are not applicable in an inquiry conducted by the Claims Tribunal. Reference may be made to the judgments titled as New India Assurance Co. Ltd. v. Sakshi Bhutani & Others. (MAC APP. No. 550/2011 decided on 02.07.2012), Bimla Devi & Others v. Himachal Road Transport Corporation & Others (2009) 13 SC 530, Parmeshwari v. Amirchand & Others 2011 (1) SCR 1096 and Mangla Ram v. Oriental Insurance Company Ltd. & Others 2018 Law Suit (SC) 303.
8. In the present case PW1 Rehana Khatoon is not the eye witness, however PW2 is Shakeel Ahmad who was in the same truck with the deceased at the time of accident and it is on the statement of PW2, criminal Digitally signed by MACT No.1268/2016 SHAILENDER Page 4 SHAILENDER MALIK MALIK Date: 2024.03.28 16:54:45 +0530 case was registered at concerned police station. PW2 in his deposition stated that on 18.08.2013 at 3.30 a.m. he was going along with the deceased Sagir Dewan on truck no. DL-1M-5466, and were proceeding towards Karnal. PW2 states that when they reached near India Hotel Rai, they saw a truck no.HR-38L-7689 parked in between the road, without any indication or other caution. PW2 says that driver Sagir Dewan tried to save the impact from the vehicle parked in between the road and take the brake, but truck was struck from behind. PW2 says that he fell down on the road whereas driver (deceased) however got blocked in the cabin of truck no. DL-1M-5466 after the accident. PW2 says that he called the police at 100 number and with the help of crane, driver was taken out from the cabin of accidental truck and his statement Ex.PW2/1 was recorded. PW2 says that accident occurred due to negligence of truck driver of truck no. HR-38L- 7689 who parked the truck in the middle of the road without any indication.
9. PW2 was duly cross examined however nothing substantive came in the cross examination of PW2. Although it is argued on behalf of insurance as well as respondent no.1 and 2 there has been a negligence on the part of the deceased. Reference has also been given of cross examination of PW2, wherein he stated that he has no documentary evidence to establish that he was working with the owner of truck no.DL-1M-5466. Such aspect in the cross examination of PW2 hardly makes any impact on his testimony regarding the manner in which accident has taken place. As such evidence of PW2 has been found to be consistent and cogent.
10. It is argued by counsel for the insurance as well as respondent no.1 and 2 that DL of deceased has not been filed on the record. However that fact by itself not sufficient to conclude that it was contributory negligence. DL of the deceased has not been filed, which does not mean that the MACT No.1268/2016 Digitally signed by Page 5 SHAILENDER SHAILENDER MALIK MALIK Date: 2024.03.28 16:54:53 +0530 deceased had no DL at all. That fact ought to have been proved by respondents.
11. Moreover evidence of PW2 also gets corroboration from certified copy of police case documents showing that police in FIR No.219/2013 of PS Rai, after investigation charge sheeted respondent no.1 for offence u/s 283/304A IPC regarding that incidence. Moreover the certified copy of site plan prepared by the police, after the accident also shows that accident occurred in between the road and in the site plan offending vehicle was shown to be parked in between the road. Moreover certified copy of charge against respondent no.1, framed by ld. CJM Sonepat on 17.02.2014 also mentions that accused/respondent no.1 herein parked offending vehicle no.HR-38L-7689 on the GT Road endangering, obstructing to the passengers and resulting into an accident. As such there is sufficient material on the record to establish that accident was caused due to rash and negligent driving of respondent no.1 while driving offending vehicle no.HR-38L-7689. Issue accordingly in favour of petitioner. Issue No.2
12. In view of the finding on issue no.1, petitioners are entitled to get compensation, however, the quantum of compensation still needs to be adjudicated. Section 168 of Motor Vehicles Act, 1988 enjoins upon the claim Tribunal to hold an inquiry into the claim to make an award determining the amount of compensation, which appears to be just and reasonable. As per settled law, compensation is not expected to be windfall or a bonanza nor it should be pittance. A man is not compensated for the physical injury, he is compensated for the loss which he suffers as a result of that injury (Baker v. Willoughby (1970) Ac 467 at page 492 per Lord Reid).
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COMPUTATION OF COMPENSATION
13. The present case pertains to the death of deceased Mohd. Mobin. In death cases, the guidelines for computation of compensation have been laid down by Hon'ble Supreme Court in case of Sarla Verma and Others v. Delhi Transport Corporation & Anr. (2009) 6 Supreme Court Cases 121. Further, the guidelines have been reiterated by the Constitution Bench of Hon'ble Supreme Court in a case titled as National Insurance Company vs. Pranay Sethi & Ors. Decided on 31.10.2017, laying down the general principles for computation of compensation in death cases. The relevant paras of the judgment are reproduced here as under:
"18. Basically only three facts need to be established by the claimants for assessing compensation in the case of death:
(a) age of the deceased;
(b) income of the deceased; and
(c) the number of dependents.
These issues to be determined by the Tribunal to arrive at the loss of dependency are:
(i) additions/ deductions to be made for arriving at the income;
(ii) the deduction to be made towards the personal living expenses of the deceased; and
iii) the multiplier to be applied with reference to the age of the deceased.
If these determinations are standardized, there will be uniformity and consistency in the decisions. There will be lesser need for detailed evidence. It will also be easier for the insurance companies to settle accident claims without delay.
19. To have uniformity and consistency, the Tribunals should determine compensation in cases of death, by Digitally signed by MACT No.1268/2016 SHAILENDER SHAILENDER MALIK Page 7 MALIK Date: 2024.03.28 16:55:10 +0530 the following well-settled steps:
Step-1 (Ascertaining the multiplicand) The income of the deceased per annum should be determined. Out of the said income a deduction should be made in regard to the amount which the deceased would have spent on himself by way of personal and living expenses. The balanc expired e which is considered to be the contribution to the dependent family, constitutes the multiplicand.
Step-2 (Ascertaining the multiplier) Having regard to the age of the deceased and period of active career, the appropriate multiplier should be selected. This does not mean ascertaining the number of years he would have lived or worked but for the accident. Having regard to several imponderables in life and economic factors, a table of multipliers with reference to the age has been identified by this Court. The multiplier should be chosen from the said table with reference to the age of the deceased.
Step-3 (Actual Calculation) The annual contribution to the family(multiplicand) when multiplied by such multiplier gives the 'loss of dependency' to the family.
Thereafter, a conventional amount in the range of Rs.5,000/- to Rs.10,000/- may be added as loss of estates. Where the deceased is survived by his widow, another conventional amount in the range of Rs.5,000 to Rs.10,000 should be added under the head of loss of consortium. But no amount is to be awarded under the head of pain, suffering or hardship caused to the legal heirs of the deceased.
The funeral expenses, cost of transportation of the body (if incurred) and the cost of any medical treatment of the deceased before death (if incurred) should also be added."Digitally signed
MACT No.1268/2016 SHAILENDER by SHAILENDER MALIK Page 8 MALIK Date: 2024.03.28 16:55:20 +0530
14. Therefore, in view of the aforesaid judgment, it is essential to take into consideration the following parameters:-
PECUNIARY DAMAGES:
Age of deceased :
15. As per the evidence of PW1 Rehana Khatoon (wife of deceased) her husband was 24 years of age at the time of accident. There is copy of election identity card showing year of birth of deceased of 1989, police documents including post mortem report, show that at the time of accident deceased was 24 years of age.
Assessment of Income of deceased :
16. PW1 in her deposition stated that her husband was doing private job as a driver and earning Rs.18,000/- per month. However PW1 in her cross examination admitted that she has no documentary evidence regarding job and earning of her late husband. In such situation this Tribunal is of considered view that notional income of deceased is to be taken on the basis of minimum wages of skilled worker being driver.
17. In this context counsel for the petitioner submits that even if accident has taken place in Rai, Sonipat, since the claim petition has been filed in Delhi, therefore minimum wages of Delhi should be taken into consideration for determining notional income of the deceased. On the other hand counsel for the insurance submitted that notional income of the deceased should be taken on the place on the basis of place of residence, place of accident. He submits that in this case deceased was originally resident of West Champaran, Bihar and accident has also taken place in PS Rai, therefore minimum wages of Delhi should not be taken and minimum wages of Bihar should be taken.Digitally signed by SHAILENDER
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18. Having considered the submissions and taking into consideration the evidence. In the pleadings insurance company has taken the objection regarding territorial jurisdiction of Tribunal at Delhi to entertain the claim petition. That aspect however was rejected by ld. Predecessor of this Tribunal by order dated 18.03.2017. Thus when it has already been concluded that Tribunal at Delhi is competent to entertain the claim petition, for deciding just and fair amount of compensation, this Tribunal is of considered view that minimum wags of Delhi should be taken into consideration for taking notional income of the deceased for determining the amount of compensation.
19. In Kavita Devi and others vs. United India Insurance Limited and others (FAO 1113-2018 decided on 05.10.2023), in para 20 it was observed "the income provided in minimum Wages Act, revised from time to time can be basic criteria or guideline to assess the income of deceased or injured, as the case may be. The facts and circumstances of each case has to be evaluated. No restriction can be imposed in assessing income of deceased or injured, in order to assess just and fair compensation for dependents".
20. In Chandra @ Chanda Chandram vs. Mukesh Kumar Yadav (2022) 1 SCC 198, it was held that in the absence of salary certificate, minimum wages notification along with some amount of guess work, that is not completely detached from reality shall act as yardstick to determine the income of deceased. It was further laid down in Manusha Srikumar and others vs. United India Insurance Company Limited, 2022 Live Law (SC) 858 that the Motor Vehicle Act being a social welfare legislation, operates through economic conception in the form of compensation which renders ways to correct injustice. It is therefore MACT No.1268/2016 Digitally signed by Page 10 SHAILENDER SHAILENDER MALIK MALIK Date: 2024.03.28 16:55:38 +0530 imperative to grant compensation which appears to be just and fair.
21. Keeping in view the ratio laid down in the above referred judgments, the income of the deceased is taken to be at parity with minimum wages of skilled worker as prevailing in Delhi, at the time of accident i.e. 18.08.2013 which is Rs.9,386/- per month. Application of Multiplier:
22. As held above, deceased was 24 years of age at the time of accident. An appropriate multiplier has to be determined for computation of compensation. The judgment titled as Sarla Verma v. DTC (2009) 6 SCC 121 is relevant to consider the multiplier. In Para 21 of the judgment, the guidelines for the multiplier were laid down in accordance with age are as under:
MULTIPLIER AGE GROUP OF DECEASED
M-18 Age group between 15 to 20 & 21
to 25 years)
M-17 Age group between 26 to 30 yrs
M-16 Age group between 31 to 35 yrs
M-15 Age group between 36 to 40 yrs
M-14 Age group between 41 to 45 yrs
M-13 Age group between 46 to 50 yrs
M-11 Age group between 51 to 55 yrs
M-9 Age group between 56 to 60 yrs
M-7 Age group between 61 to 65 yrs
M-5 Age group between 66 and above
23. In view of the above, multiplier of 18 has to be applied against the age bracket of 21 to 25 years to determine the compensation. Future Prospects:
24. This issue was considered by the Hon'ble Supreme Court in Digitally signed by MACT No.1268/2016 SHAILENDER Page 11 SHAILENDER MALIK MALIK Date: 2024.03.28 16:55:46 +0530 the case of Pranay Sethi & Others (Supra). Relevant parts of the judgment are reproduced here as under:
"(iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.
(iv) In case, the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component."
25. Since on the day of accident deceased was aged around 24 years, in view of said fact this Tribunal finds that 40% of the income of deceased has to be considered towards future prospects as he was below the age of 40 years.
Deduction towards Personal Living Expenses:
26. After choosing the age, multiplier and income of the deceased, necessary deductions have to be made out of the income of the deceased towards his personal expenses. Hon'ble Supreme Court in case titled as Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65, in para 30, laid down the necessary deductions towards personal living and expenses of deceased as under :
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Deductions out of earning of the Number of
deceased dependents
Where dependent is 1 Half
Where the number of dependent family 1/3rd
members is 2 to 3
Where the number of dependent family 1/4th
members is 4 to 6
Where the number of dependent family 1/5th
members exceeds 6 (six)
27. Instant claim petition has been filed by four petitioners, therefore one-fourth of the income of the deceased is to be deducted towards his personal living expenses.
NON-PECUNIARY DAMAGES:
28. In case of Pranay Sethi (Supra), a compensation of Rs.40,000/-, 15,000/- and Rs.15,000/- respectively has been fixed on account of loss of consortium, loss of estate and funeral expenses. Therefore, a compensation of Rs.40,000/-, 15,000/- and Rs.15,000/- respectively on account of loss of consortium, loss of estate and funeral expenses is required to be granted and further, it is required to be enhanced @ 10% in every three years. Therefore, a compensation of Rs.48,000/-, 18,000/- and Rs.18,000/- respectively on account of loss of consortium, loss of estate and funeral expenses is required to be granted. Further, in view of recent decision of Hon'ble Supreme Court in the case titled as United India Insurance Co. Ltd. Vs. Satinder Kaur @ Satwinder Kaur & Ors., Civil Appeal no. 2705 of 2020, decided on 30.06.2020, loss of consortium has to be fixed for each of the LRs. Since, the deceased was Digitally signed by MACT No.1268/2016 SHAILENDER SHAILENDER MALIK Page 13 MALIK Date: 2024.03.28 16:56:02 +0530 survived by four legal heirs, therefore, the claimants are entitled to a sum of Rs.2,28,000/- (48,000 X 4 + 18,000 + 18,000) under this head.
29. Considering the aforementioned factors, the total compensation is calculated as under:
S. No. Head Amount Awarded 1. Monthly income of deceased (A) Rs. 9,386/- 2. Add future prospect (B) @ 40% Rs. 3,754/-
3. Less one fourth towards personal and Rs. 3,285/-
living expenses of the deceased (C)
4. Monthly loss of dependency (A+B)- Rs. 9,855/-
C=D
5. Annual loss of dependency (Dx12) Rs. 1,18,260/-
6. Multiplier (E) 187. Total loss of dependency (Dx12xE=F) Rs. 21,28,680/-
9. Compensation for loss of consortium Rs.1,92,000/-
(48,000 X 4) (G)
10. Compensation for loss of estate (H) Rs.18,000/-
11. Compensation for funeral expenses (I) Rs.18,000/-
12. Total compensation (F + G + H + I) Rs.23,56,680/-
30. Thus, petitioners in this case shall be entitled to a total compensation of Rs.23,56,680 /- only.
INTEREST ON AWARD
31. Petitioners shall also be entitled to interest @ 8% per annum on the award amount from the date of filing of the petition till realization. LIABILITY
32. Now comes important aspect of liability in this case. Insurance in this case has taken two fold objections for avoiding the liability to pay compensation or atleast to claim pay and right of recovery against owner of MACT No.1268/2016 Digitally signed by Page 14 SHAILENDER SHAILENDER MALIK MALIK Date: 2024.03.28 16:56:10 +0530 the offending vehicle. Firstly that DL of the respondent no.1/driver was fake. Secondly permit of offending vehicle no. HR-38L-7689 was not valid on the day of accident. In this regard insurance company has examined four witnesses.
33. R3W1 is V.N. Narayanan, Assistant Resident Commissioner, Government of Nagaland who was examined partly on 26.03.2021. That witness in his examination in chief stated that he has brought office order dated 18.03.2021 as well as various notifications issued by Government of Nagaland, collectively exhibited as Ex.R3W1/B. Witness stated that as per notification all the driving licence holders were directed to convert their manual, laminated driving licence into smart card licence with cut off date 01.12.2014. Any old licence not converted into smart card upto 30.11.2014 would automatically become invalid.
34. First of all as noted above evidence of R3W1 was not completely recorded as in cross-examination, when the witness was put a particular question that manual DL issued prior to notification dated 01.08.2014, would still be considered to be valid, witness expressed his ignorance about that fact and his cross-examination was deferred for bringing relevant documents. That witness Sh.V.N. Narayanan had never appeared thereafter in the witness box. As such incomplete evidence of PW R3W1, cannot be taken into consideration. It is thereafter another person namely Kedichatuo Kense, Assistant Liaison Officer, Government of Nagaland appeared as R3W2 and stated that since Mr.V.N. Narayanan had retired from the services, Department deputed him to appear in this matter.
35. Ld. Predecessor of this Tribunal, without recording fresh examination in chief of that witness (R3W2), simply recorded the remaining cross-examination. As such even the evidence of R3W2 can also MACT No.1268/2016 Digitally signed by SHAILENDER Page 15 SHAILENDER MALIK MALIK Date: 2024.03.28 16:56:19 +0530 not be taken into consideration being incomplete evidence and nothing stated by that witness in his examination in chief.
36. Even if for the time being evidence of R3W1 is taken into consideration, nowhere in his evidence came that DL of the respondent no.1 was fake. Only thing tried to be proved was that on account of Government orders, notification Ex.R3W1/B manual licences, laminated licences were ordered to be converted into smart card licence. A date/time line was fixed for the conversion with the condition that in case such conversion is not done, old licences would be considered to be invalid. Even if such conditions as came in the evidence of R3W1 is taken on the face of it, it is still not proved that DL of the respondent no.1 was never converted into smart card.
37. No doubt respondent no.1 has never appeared in the witness box, who was the best witness to prove the DL and validity of the same. Insurance/respondent no.3 has never summoned that driver for his evidence on its behalf.
38. While proceeding ahead another witness examined is R3W3 Pradeep Kumar from RTO Office, Faridabad. As per this witness he brought the record regarding permit of vehicle no. HR-38L-7689 which is Ex.R3W3/1. This witness stated that said vehicle no. HR-38L-7689 was not having valid permit on the day of accident. PW R3W3 further stated that permit of offending vehicle was valid from 12.08.2012 to 11.08.2013.
39. R3W4 is Vineet Kumar, official from insurance company, who stated that offending vehicle no. HR-38L-7689 though was insured with R3, but a notice under Order 12 Rule 8 CPC was served but owner and driver failed to furnish the requisite documents as sought in that notice Ex.R3W4/2 to 4 and postal receipts are Ex.R3W4/5 to 7. PW R3W4 further says that Digitally signed MACT No.1268/2016 by SHAILENDER Page 16 SHAILENDER MALIK MALIK Date: 2024.03.28 16:56:27 +0530 respondent no.1 got issued DL from Nagaland Authority on manual record which is Ex.R3W4/8 whereas by notification of 2009 manual DL were required to be converted into smart card licences, which was never done at the time of accident.
40. PW R3W4 admitted in his cross-examination that he never dispatched notice under Order 12 Rule 8 CPC and in the postal receipts Ex.R3W4/6 and 4/7 incorrect pin code and name has been mentioned. As such when the address of the addressee i.e. owner and driver is not properly mentioned, mere referring to postal receipts do not establish due service of notice. No presumption of due service of notice can be drawn even under General Clauses Act when address of addressee has not been mentioned properly on the postal receipts.
41. On the question of permit, it is important to refer evidence of R2W1 examined on behalf of owner/respondent no.2 namely Kunwal Pal who also came from RTO Faridabad and testified that in respect of offending vehicle no. HR-38L-7689 permit was transferred in the year 2013 in the name of Santosh Rani (R2/owner) and which remained valid till 25.03.2018. This witness referred to record brought by him as Ex.R2W1/A.
42. While examining the record proved in the evidence of R3W3 i.e Ex.R3W3/1 as well as examining document Ex.R2W1/A proved from two witnesses came from same office i.e. RTO Office Faridabad regarding permit, it is evident from careful scrutiny that permit was transferred in the name of respondent no.2 Santosh Rani in year 2013. Earlier permit was valid only upto 11.08.2013. However later when permit was transferred, in the name of R2 in year 2013, its validity was extended upto 25.03.2018. This fact is very much evident from complete record proved which is Ex.R2W1/A. As such this Tribunal is of considered view on the basis of Digitally signed by MACT No.1268/2016 SHAILENDER SHAILENDER Page 17 MALIK MALIK Date: 2024.03.28 16:56:35 +0530 evidence discussed above that on the day of accident i.e. 18.08.2013 vehicle had a valid permit.
43. On the question of DL, ld. Counsel for R2 has rightly relied upon judgment of Apex Court in IFFCO Tokio General Insurance Company vs. Geeta Devi and others (SLP (C) No.19992/2023 decided on 30.10.2023), wherein Hon'ble Apex Court, in para 7 held that in view of the provisions of Section 149(2)(a)(ii) of M.V. Act as well as driver clause of insurance policy does not mandate that owner of insured vehicle must as a rule, get the DL of person employed as a driver, verified and checked from concerned transport authority. Apex Court in that judgment further relied upon previous judgment in Skandia Insurance Co. Ltd. vs. Kokilaben Chandravadan and others (1987) 2 SCC 654, Sohan Lal Passi vs. P. Sesh Reddy and others (1996) 5 SCC 21, National Insurance Co. Ltd. vs. Swaran Singh and others (2004) 3 SCC 297 and United India Insurance Co. Ltd. vs. Nehru and others (2003) 3 SCC 338. Thus in view of the ratio laid down above and the evidence as discussed above, I find that insurance company failed to establish any breach of insurance policy and therefore this Tribunal concludes that the liability to pay the compensation would be on insurance company/respondent no.3. Relief
44. This Tribunal awards a compensation of Rs.23,56,680 /- to the petitioners along with interest @ 8% per annum from the date of filing of petition till realization to be paid by respondent no.3/insurance company. Amount of interim award, if any, be deducted from the compensation amount along with the waiver of interest, if any, as directed by the Tribunal during the pendency of this case. The respondent no.3 is directed to deposit the award amount in A/c no.20780110171912 (IFSC Code Digitally signed by MACT No.1268/2016 Page 18 SHAILENDER SHAILENDER MALIK MALIK Date: 2024.03.28 16:56:44 +0530 UCBA0002078), UCO Bank, Karkardooma, Delhi, of PO MACT, Shahdara, through RTGS/ NEFT, within 30 days from today. Respondent no.3 is also directed to give notice regarding deposit of the said amount to the petitioners.
Disbursement and Apportionment of Award Amount
45. Accordingly amount of compensation is being ordered to be disbursed and apportioned in following manner :
(i)Out of awarded amount, petitioner no. 1 (widow of deceased) is entitled for 40% compensation i.e. Rs.9,42,672/-, out of which a sum of Rs. 2,42,672/- is directed to be released into her saving account and remaining amount of Rs.7,00,000/- along with the interest on the entire award amount is directed to be kept in 14 fixed deposits of Rs. 50,000/- each for a period of six month, one year, one and a half years, two years and so on till seven years.
(ii)Out of awarded amount, petitioner no. 2 and 3 (minor children of deceased) are entitled for 25% each of compensation i.e. Rs.
5,89,170/- each is directed to be kept in their names with UCO Bank, Karkardooma Courts, Delhi in Motor Accident Claims Annuity Deposit (MACAD) in the form of FDRs (fixed deposit receipts) for a period till they attain age of majority.
(iii)Out of awarded amount, petitioner no. 4 (father of deceased) is entitled for 10% compensation i.e. Rs.2,35,668/-, and Manager UCO Bank Shahdara is directed to keep the said amount in the form of FDR for a period of three years.
46. The amount of FDRs on maturity shall directly be released in petitioner's MACT Saving Bank Account.
Direction to the petitioners
47. The petitioners shall open a saving bank account near the place of their residence. Further, the bank of petitioners is directed to comply with 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 i.e., the Digitally signed MACT No.1268/2016 by SHAILENDER SHAILENDER MALIK Page 19 MALIK Date: 2024.03.28 16:56:53 +0530 savings bank account of the claimant 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.
(c)The monthly interest be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant near the place of their residence.
(d)The maturity amounts of the FDR be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant near the place of their residence.
(e)No loan, advance, withdrawal or pre-mature discharge be allowed on the fixed deposits without permission of the Court.
(f) The concerned bank shall not issue any cheque book and/or debit card to claimant. 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 so that no debit card be issued in respect of the account of the claimant from any other branch of the bank.
(g)The bank shall make an endorsement on the passbook of the claimant 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 claimant shall produce the passbook with the necessary endorsement before the Court on the next date fixed for compliance.
48. File be consigned to Record Room. Digitally signed by SHAILENDER SHAILENDER MALIK MALIK Date: 2024.03.28 16:57:02 +0530 Announced in the open Court ( Shailender Malik ) on 28.03.2024 PO MACT-02/SHD/KKD MACT No.1268/2016 Page 20