Delhi District Court
Hem Kumari Devi & Ors. vs . Indra Pal Singh & Ors. on 6 August, 2018
IN THE COURT OF SH. M. K. NAGPAL PRESIDING
OFFICER : MOTOR ACCIDENT CLAIMS TRIBUNAL
PATIALA HOUSE COURTS, NEW DELHI
MACT No.124/15
HEM KUMARI DEVI & ORS. VS. INDRA PAL SINGH & ORS.
Date of Decision : 6th August, 2018
1. Smt. Hem Kumari Devi (Wife)
W/o. Late Sh. Agni Dhar,
R/o. 86/3, A-Block,
Mahipal Pur Extension, New Delhi-37.
2. Ms. Praveen Lata Sharma (Married Daughter)
W/o. Sh. Raj Sharma,
D/o. Late Sh. Agni Dhar,
R/o. B-1202, Gharoli Dairy Farm,
Mayur Vihar, Phase-3, East Delhi-110096.
3. Ms. Meena Sharma (Married Daughter)
D/o. Late Sh. Agni Dhar,
R/o. 86/3, A-Block,
Mahipal Pur Extension, New Delhi-37.
4. Ms. Nirmala Sharma (Unmarried Daughter)
D/o. Late Sh. Agni Dhar,
R/o. 86/3, A-Block,
Mahipal Pur Extension, New Delhi-37.
5. Sh. Sanjay Sharma (Unmarried Son)
S/o. Late Sh. Agni Dhar,
R/o. 86/3, A-Block,
Mahipal Pur Extension, New Delhi-37.
6. Smt. Kali Poudel (Mother)
W/o. Late Sh. Ram Prashad Poudel,
R/o. 86/3, A-Block,
Mahipal Pur Extension, New Delhi-37.
(Since expired)
MACP No.124/15 Page no.1 of 22
All the petitioners also at:-
H. No. D-216, Gali No.4,
Block B, Roshan Nagar,
Mandir Wali Gali, Agwanpur Faridabad,
Haryana-121013.
...Petitioners
Versus
1. Sh. Indra Pal Singh (Driver)
S/o. Sh. Prakash Yadav,
R/o. F-193, Near Panchmukhi Mandir,
Lal Quan, Pul Prahlad,
Delhi-110044.
2. M/s. AB Grain Spirits Pvt. Ltd. (Owner)
24-A, Bharat Nagar,
New Friends Colony,
New Delhi-110065.
3. M/s. United India Insurance Co. Ltd. (Insurer)
DO-24, Motor Dealer Division,
4th Floor, Jeewan Vikas Building,
30-31A, Asaf Ali Road, Delhi-110002.
..... Respondents
Date of filing of DAR : 12.10.2015
Date of filing of claim petition : 18.11.2015
Date of framing of issues : 02.12.2015
Date of concluding arguments : 02.08.2018
Date of decision : 06.08.2018
AWARD/JUDGMENT
1. The claim for compensation raised in the present claim petition relates to death of one Sh. Agni Dhar, which was caused in an accident that took place on 30.03.2015 at about 4:20pm at Bus Stop, Mata Chowk, Andheria More Road, Mahipal Pur, New Delhi, regarding which one FIR No.346/15, under Sections 279/337 IPC was registered MACP No.124/15 Page no.2 of 22 at PS Vasant Kunj (South). The offending vehicle involved in the said accident is one bus bearing registration no. DL-1PC-6343, which at the relevant time of accident was being driven by R-1, owned by R-2 and insured with R-3.
2. Facts of the case, briefly stated, are that on above date of accident, the deceased is alleged to have been boarding the offending bus from the bus stop of Andheria More Road, when R-1 being driver of the said bus is stated to have been suddenly moved the bus and as a result of the jerk given by said moving, the deceased fell on the road and sustained injuries. He was removed to AIIMS Trauma Centre for treatment by the PCR officials, where he subsequently expired on 03.04.2015. It is alleged that the above accident was caused due to rash and negligent act of R-1 in suddenly moving the said bus, while the deceased was still in the process of boarding it.
3. Detailed Accident Report (DAR) in respect of the above accident was filed before this tribunal on 12.10.2015 and this claim petition was also subsequently filed by the petitioners on 18.11.2015 and the DAR was clubbed with the petition on the said date for further proceedings.
4. R-1 in his WS/reply has not denied the fact that he was driving the offending bus on the date of accident or even death of the deceased in the said accident, but it is his case that the said accident did not take place due to his rash and negligent driving and rather the deceased himself was at fault. However, no WS/reply to the claim petition or to the DAR was filed on behalf of R-2 despite giving sufficient opportunities.
5. R-3/Insurance Co. has given a legal offer of Rs.7,03,720/-
MACP No.124/15 Page no.3 of 22 to the petitioners for settlement of their claim for compensation raised in petition/DAR, but the same was not accepted by the petitioners.
6. I have heard the arguments advanced by Sh.Manoj Goel, Ld. Counsel for the petitioners, Sh. Rakesh Lakra, Ld. Counsel for R-2 and Sh. Vikas Sharma, Ld. Counsel for R-3 and have also carefully perused the entire material available on record, including the written submissions filed by Ld. Counsel for the petitioners. However, none has turned up on behalf of R-1 subsequently to address any arguments. My issue-wise findings are as under:-
ISSUE NO. 1"Whether Sh. Agni Dhar sustained fatal injuries in the accident which occurred on 30.03.2015 at about 04.20 pm at Mata Chowk, Mahipal Pur, Andheria More Road, New Delhi caused by rash and negligent driving of vehicle No.DL 1PC 6343 driven by respondent no. 1, owned by respondent no.2 and insured with respondent no.3? OPP."
7. It is well settled that the procedure followed for proceedings conducted by an accident Tribunal is similar to that followed by a civil court and in civil matters the facts are required to be established by preponderance of probabilities only and not by strict rules of evidence or beyond reasonable doubts as are required in a criminal prosecution. The burden of proof in a civil case is never as heavy as that is required in a criminal case, but in a claim petition under the Motor Vehicles Act, this burden is even lesser than that in a civil case. In the case of Bimla Devi and others Vs. Himachal Road Transport Corporation & Ors., (2009) 13 SC 530, it has been observed by the Hon'ble Supreme Court that in a road accident case, the strict principles of proof as in a criminal case are not attracted. Relevant portion of the said judgment is reproduced as under:-
MACP No.124/15 Page no.4 of 22 "15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. For the said purpose, the High Court should have taken into consideration the respective stories set forth by both the parties."
8. These observations were also quoted with approval in the subsequent judgment of the Hon'ble Supreme Court in case Parmeshwari Vs. Amir Chand and others 2011 (1) SCR 1096 (Civil Appeal No.1082 of 2011) and also recently in another case Mangla Ram Vs. Oriental Insurance Co. Ltd. & Ors., 2018 Law Suit (SC)
303.
9. Though petitioners in support of their case have examined on record a total number of three witnesses, including P-1 Smt. Hem Kumari Devi herself examined as PW1, but it is found that testimony of only PW3 Mohd. Arif is relevant for determination of this issue as he is an alleged eye-witness of the above accident and none of the other two witnesses had seen the accident.
10. PW3 has duly tendered on record his examination-in-chief by way of an affidavit Ex.PW3/A, in which he has specifically deposed about the factum as well as manner of the said accident. This witness claims that on day of accident, the deceased had come to his clinic/shop situated at K-814, Navratan Building, Mata Chowk, New Delhi-37 to take some medicines for his wife and he accompanied the deceased to the above bus stop from which the deceased was to take a bus. He further stated in the above affidavit that at about 4pm, an orange coloured cluster bus bearing registration no. DL-1PC-6343 MACP No.124/15 Page no.5 of 22 being plied on route no. 717 reached there and it stopped at the bus stop and people waiting there started boarding it from its rear gate. He further stated therein that the deceased Sh. Agni Dhar was the last person to board the bus, but driver of the bus started the bus in a rash and negligent manner, at a high speed with a jerk, without seeing or waiting for Agni Dhar to enter the said bus properly and even without closing doors of the said bus, due to which Agni Dhar was thrown out of the bus and he sustained injuries. He further stated in the above affidavit that he made a call to the police at no. 100 regarding the said accident and PCR officials came after sometime, but driver of the bus ran away from the spot with the bus before arrival of the police and injured was taken to the hospital by the police. He has also tendered on record a copy of his Aadhaar Card as Ex.PW3/1 and reiterated that the said accident took place only due to rash and negligent driving of the above bus by R-1.
11. Though, this witness is found to have been cross examined at length on behalf of R-1, but it is observed that during his such cross-examination nothing material could be extracted out from him to challenge, confront or to controvert his claim of being an eye- witness of the said accident or regarding the said accident having been caused due to rash and negligent driving of R-1. During his cross-examination, this witness has further clarified that he was running a shop for providing oil massage or Ayurvedic medicines and though, he could not produce any document to show his link with the said shop existing at the given address, but he has duly tendered on record during his cross examination a copy of his visiting card showing him to be running a shop at Mata Chowk, Main Vasant Kunj, MACP No.124/15 Page no.6 of 22 Mahipalpur, New Delhi-37 with the name of 'Chaudhary Pahlwan'. He has also specifically denied the suggestions given to him by Ld. Counsel for R-1 to the effect that he had not seen the above accident or that no accident with the above bus took place or that the deceased did not visit his shop on the date of accident nor did the deceased purchased any medicines from him. He further denied the suggestions that he was not even running any shop near the said place of accident and came to depose falsely at the instance of the petitioners.
12. The claim made by this witness regarding being an eye- witness of the above accident and also a PCR caller are found to be duly substantiated from records of the criminal case, which have been filed by the IO of the above criminal case as the said facts are found to be clearly stated in the copy of charge-sheet of the said case prepared by the IO. The contents of the charge-sheet and other documents of the criminal case like copies of FIR, site plan, seizure memo of the said bus and its documents, etc. also corroborate the depositions being made by this witness regarding the manner of the said accident and name of this witness is even found to be specifically stated in the list of witnesses filed with the charge-sheet of the said case. Admittedly, a statement under Section 161 Cr.P.C. of this witness was recorded by the IO during investigation of the said criminal case.
13. Moreover, R-1 was the best witness who could have controverted the testimony of this witness by stepping into the witness box in his defence to prove that no accident took place with his above bus or that it did not take place in the manner as narrated by this witness. However, for the reasons best known to him, he has chosen not to do so and an adverse inference can also be drawn against the MACP No.124/15 Page no.7 of 22 respondents on this aspect, in view of the law laid down in the case of Cholamandalam M.S. General Insurance Company Ltd. Vs. Kamlesh, reported in 2009 (3) AD (Delhi) 310.
14. Even otherwise, it is an admitted fact that R-1 stands already charge-sheeted in the above criminal case for the offences, inter-alia, under Sections 279/304A IPC for causing death of the deceased Sh.Agni Dhar in the above accident due to his rash and negligent driving of the above offending bus. Death of the deceased in the above accident has not been disputed and even otherwise, the same stands proved from postmortem report of the deceased filed on record with the DAR.
15. Hence, in view of the above factual and legal discussion, it is held that the oral evidence led on record by the petitioners is duly substantiated by the documentary evidence and it stands proved that the above accident resulting into death of the deceased Sh.Agni Dhar was caused due to rash and negligent act of R-1 in driving the above offending bus bearing registration no. DL-1PC-6343, which was owned by R-2 and insured with R-3. This issue is accordingly decided in favour of the petitioners and against the respondents.
16. ISSUE NO.2 "Whether the petitioners are entitled for compensation? If so, to what amount and from whom?"
As the rashness and negligence on the part of driver of the above offending vehicle/R-1 has been satisfactorily proved, the petitioners have become entitled to be compensated for the death in the above accident, but the computation of compensation and liability MACP No.124/15 Page no.8 of 22 to pay the same are still required to be decided. The compensation to which the petitioners are entitled shall be as under the following heads:-
COMPENSATION
i) Loss of dependency As per the depositions made by the petitioner/PW1 in her above affidavit Ex.PW1/A, her deceased husband was aged around 64 years at the time of accident. She is also found to have tendered on record, inter-alia, a copy of driving licence of the deceased as Ex.PW1/16, copy of his PAN Card as Ex.PW1/17 and copies of educational certificates as Ex.PW1/18 (Colly). In all these documents, date of birth of the deceased is found to be mentioned as 05.12.1950.
Since the accident of this case took place on 30.03.2015, the age of deceased at the time of accident even as per these documents come between 64-65 years and therefore, in view of the law laid down by the Hon'ble Supreme Court in case of Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr., (2009) 6 SCC 121, which has also been upheld by the Constitutional Bench of the Hon'ble Supreme Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi & Ors. SLP (Civil) No. 25590 of 2014, decided on 31.10.2017, the multiplier of '7' is applicable in this case for calculating the loss of dependency caused to the petitioners in respect of death of the deceased Sh.Agni Dhar.
Admittedly, the deceased was an Ex-serviceman as he retired from the Indian Army as a Subedar and it is also not disputed that he was drawing a pension of Rs.23,400/- p.m. at the time of accident. PW1/P-1 in her evidence is also found to have been MACP No.124/15 Page no.9 of 22 tendered on record a copy of the pension pay order of the deceased as Ex.PW1/20, copy of one letter dated 11.09.2015 for commutation of his pension as Ex.PW1/21, copy of her identity card as a widow of an EX-serviceman as Ex.PW1/22 and certain other documents to substantiate her depositions made with regard to the above. She is further found to have stated in her above affidavit that after death of her husband, she is drawing a family pension of Rs.15,729/- p.m. from the office of deceased. Copy of passbook of the witness is also found to be tendered during her evidence as Ex.PW1/26 to show the amount of family pension being received at present.
However, in addition to the above income/earnings of the deceased in the form of pension of Rs.23,400/-, it is also the case of petitioners that the deceased was working as a Supervisor in a company named M/s RKM Exports, D-85, Sector 63, Gautam Budh Nagar, Noida, U.P. and was drawing a salary of Rs.15,500/- p.m. One salary certificate of the deceased to this effect is also found to have been tendered during examination of P-1/PW1 as Ex.PW1/25, which is found to be issued by one Sh. Sanit Sadh, proprietor of the above said firm. Petitioners have even examined the above Sh.Sanit Sadh as a witness in this case as PW2 for proving the said certificate and this witness is further found to have produced on record certain other documents as Ex.PW2/1 (Colly) to Ex.PW2/6 (Colly).
This witness has stated on record that the deceased was working as a Supervisor in his firm since December, 2014 and he was being paid a salary of Rs.15,500/- and the above certificate Ex.PW1/25 was issued by him. He has also referred to copies of four different vouchers of payments for the months of December, 2014 to MACP No.124/15 Page no.10 of 22 March, 2015, which are Ex.PW2/1 (Colly). He has further placed on record a copy of certificate of Importer Exporter Code (IEC) of his firm as Ex.PW2/2, copy of certificate of registration and allotment of TIN of his firm, alongwith covering letter as Ex.PW2/3, copy of rent agreement as Ex.PW2/4 (Colly), copy of registration-cum-membership certificate as Ex.PW2/5 (Colly) and copy of bank statement of his firm as Ex.PW2/6 (Colly).
During his cross-examination, this witness has stated that his firm was doing the business of stitching ladies garments and there were only four employees in his firm, but he has further volunteered that there were other labourers also working under contract in his firm. He has also stated that he had not issued any appointment letter to the deceased and his salary was being paid in cash. He further stated that they were not maintaining any register or attendance register of the employees working in their firm and hence, he could not produce any such register. He further stated that no ESI or PF etc. of their employees was being deducted and no documents of the deceased were taken by them at the time of giving employment to him.
The above depositions made by this witness put serious doubts on the claim of the petitioners regarding alleged working of deceased with the above firm and drawing of a salary of Rs.15,500/- at the time of accident. As per the letter head of the firm on which the certificate Ex.PW1/25 regarding salary of the deceased has been given and the other documents placed on record, the above firm was a manufacturer and exporter of all kind of silk scarves, bags, jewellery and garments and it just cannot be believed that no registers or records were being maintained by the firm of their employees when it MACP No.124/15 Page no.11 of 22 is an admitted that four regular employees and other labourers through a contractor were working with them. Again, salary of the deceased is claimed to be paid in cash only and PW2 has also stated that they were not keeping any records of salary etc. paid to their employees. Though originals of the above vouchers are shown to have been produced at the time of recording of examination in chief of the above witness, but this witness has failed to produce on record these originals on the next date of his examination and what he has produced on next date is only a booklet containing similar blank cash vouchers and that too without any serial numbers. These vouchers are also containing receiving of the amounts paid through these vouchers to the deceased and the same should have been kept and preserved by the firm for their accounts. Even no account books or any other document of the above firm to substantiate the claim of employment of the deceased with above firm at the above salary has been produced in evidence. It cannot be ignored that the accident took place in March, 2015 and employment of the deceased with the above firm is being shown from December, 2014 only, i.e. just four months prior of the accident, though the deceased was discharged from Indian Army in the year 2002. Again no income tax return of the deceased has also been filed on record to show that he had ever worked with any firm or company since his discharge form services. Hence, this tribunal is not satisfied with the veracity of evidence led on record regarding the above employment and salary of deceased and is of the considered opinion that possibility cannot be ruled that the same has been fabricated in an attempt to enhance the claim of the petitioners. Therefore, the above amount of Rs.15,500/- cannot be considered for MACP No.124/15 Page no.12 of 22 addition to the above pension income/earnings of the deceased and his loss of dependency is liable to be calculated only on the above pension amount of Rs.23,400/- p.m. Though, it is also the contention of Ld. Counsel for R-3 that amount of Rs.15,729/- which the petitioners are getting as family pension after death of the deceased should also be reduced from the above earnings, but in view of the judgments in the cases of Lal Dei Vs. Himachal Road Transport Corporation, 2007 LawSuit (SC) 1465, Vimal Kanwar & Ors. Vs. Kishore Dan & Ors, 2013 LawSuit (SC) 392 and Reliance General Insurance Co. Ltd. Vs. Shashi Sharma & Ors, 2016 LawSuit (SC) 913 being relied upon Ld. Counsel for the petitioners, this submission is not tenable.
In view of above, the monthly salary of the deceased is being taken as Rs.23,400/- and his annual salary thus comes to Rs.2,80,800/- (Rs.23,400/- X 12). In view of the settled law on the subject, only the tax liability of the deceased, if any, is liable to be reduced from his above earnings as his 'income' means actual income less than the tax paid, as was also recently approved in the case of Pranay Sethi (Supra). As per the income tax slab for the relevant financial year, i.e. 2014-15, there is Nil tax upto the income of Rs.3,00,000/- and 10% tax rate is applicable from Rs.3,00,001/- to Rs.5,00,000/-. Hence, nothing as income tax is required to be reduced from the above earnings of the deceased and the annual earnings of the deceased are taken to be same as Rs.2,80,800/-.
It is found that this petition was originally filed by six petitioners, i.e. widow of the deceased as P-1, two married daughters as P-2 & P-3, one unmarried daughter and son as P-4 & P-5 MACP No.124/15 Page no.13 of 22 respectively and his mother as P-6. However, during pendency of petition, mother of the deceased/P-6 had expired and her name stands already deleted. Since two married daughters of the deceased cannot be considered as dependents upon the deceased at the time of his death, it can be said that the deceased was having four dependents at the time of accident. Therefore, in view of the law already discussed above, 1/4th earnings of the deceased shall be deducted towards his personal and living expenses. Further, since the deceased was between 64-65 years of age at the time of accident, the petitioners are not entitled to any addition on the above amount of his annual earnings towards future prospects, in view of the law laid down in the case of Pranay Sethi (Supra).
Thus, the loss of dependency qua the deceased in the present case comes to Rs.14,74,200/- (Rs.2,80,800/- X 3/4 X 7) and the said amount is being awarded to the petitioners under this head.
(ii) COMPENSATION UNDER NON-PECUNIARY HEADS The petitioner/PW1 in her above affidavit Ex.PW1/A has also stated that she had spent an amount of Rs.45,500/- towards transportation of dead body of the deceased in a private ambulance and further tendered on record a bill in this regard as Ex.PW1/23. She also stated therein that she had spent another amount of Rs.84,878/- towards cremation and last rights of his deceased husband and tendered on record 11 bills as Ex.PW1/24.
However, the compensation to be granted in case of a death arising from a road accident under the non-pecuniary heads of loss of estate, loss of consortium, funeral expenses etc. came for MACP No.124/15 Page no.14 of 22 active consideration before the Hon'ble Supreme Court in the above Constitution Bench judgment in the case of Pranay Sethi (Supra) and in terms of the propositions laid down by the Hon'ble Supreme Court in the said case, the petitioners are being held entitled to amounts of Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively only under the above three heads. However, no compensation can be awarded to the petitioners under any other head like loss of love and affection etc. being claimed by Ld. Counsel for the petitioners, in view of the law laid down in the above judgment and also followed by the Hon'ble Delhi High Court in its various judgments including the recent decision/ judgment dated 02.11.2017 of the Hon'ble Delhi High Court in MACA No.798/2011 in the case Bajaj Allianz General Ins. Co. Ltd. Vs. Pooja & Ors. Hence, the petitioners are also awarded a total sum of Rs.70,000/- under the above three heads.
CONTRIBUTORY NEGLIGENCE Though, an issue of contributory negligence has also been raised by Ld. Counsels for the respondents and it is their submission that since the deceased himself was negligent in boarding the offending bus and had fallen on the road due to his own negligence, the compensation payable to the petitioners is required to be reduced in proportion to the contributory negligence which may be attributed to the deceased. However, in view of the judgments being relied upon Ld. Counsel for the petitioners in the cases of Bhaskaran Vs. Ravindran & Ors., 1990 ACJ 1032, United India Insurance Co. Ltd. Vs. Pushpa & Ors, 2012 LawSuit (Del) 1024 and Meera Devi & Anr. Vs. H.R.T.C. & Ors., 2014 LawSuit (SC) 168, this submission of Ld. Counsels for the respondents is also not tenable.
MACP No.124/15 Page no.15 of 22
17. The petitioners are thus held entitled to the compensation as given in the following summary of computation in the prescribed format:-
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN FORM IV-A
1. Date of accident : 30.03.2015
2. Name of the deceased : Sh. Agni Dhar
3. Age of the deceased : Between 64-65 years
4. Occupation of the deceased : Pensioner
5. Income of the deceased : Rs.23,400/-
6. Name, age and relationship of legal representative of deceased:-
Srl. No. Name Age Relation
(i) Smt.Hem Kumari Devi 59 years Wife
(ii) Ms. Nirmala Sharma 30 years Unmarried daughter
(iii) Sh. Sanjay Sharma 27 years Unmarried son
Computation of Compensation
Srl. No. Heads Amount Awarded
7. Income of the deceased (A) Rs.23,400.00
8. Add-Future Prospects (B) Nil
9. Less-Personal expenses of the Rs.5,850.00
deceased (C)
10. Monthly loss of dependency Rs.17,550.00
[(A+B) - C = D]
11 Annual loss of dependency (D x Rs.2,10,600.00
12)
12 Multiplier (E) 7
13 Total loss of dependency (D x 12 Rs.14,74,200.00
x E = F)
14 Medical Expenses (G) Nil
15 Compensation for loss of love Nil
and affection (H)
16 Compensation for loss of Rs.40,000.00
consortium (I)
17 Compensation for loss of estate Rs.15,000.00
MACP No.124/15 Page no.16 of 22
(J)
18 Compensation towards funeral Rs.15,000.00
expenses (K)
19 TOTAL COMPENSATION Rs.15,44,200.00
(F + G + H + I + J+K =L)
20 RATE OF INTEREST AWARDED 9% pa from date of filing of
DAR i.e. 12.10.2015 within 30
days and 12% thereafter.
21 Interest amount up to the date of Rs.3,91,803.73
award (M)
22 Total amount including interest Rs.19,36,003.73
(L+M) being rounded off to
Rs.19,36,000/-
23 Award amount released P-1= Rs.1,36,000/-
P-4= Rs. 50,000/-
P-5= Rs. 50,000/-
24 Award amount kept in FDRs P-1= Rs.12,00,000/-
P-4= Rs. 2,50,000/-
P-5= Rs. 2,50,000/-
25 Mode of disbursement of the award Through bank
amount to claimant(s)
26 Next date for compliance of the 15.11.2018
award
ISSUE NO.3/RELIEF
18. The petitioners are thus awarded a sum of Rs.19,36,000/-
(Rupees Nineteen Thousand Thirty Six Thousand Only) interest @ 9% per annum from the date of filing of DAR, i.e. 12.10.2015, till date and interest at the same rate till notice of deposit is given to them. However, it is directed that the amount of interim award and interest for the suspended period, if any, during the course of this inquiry, shall be liable to be excluded from the above amount and
19. APPORTIONMENT Out of the entire awarded amount of Rs.19,36,000/-, MACP No.124/15 Page no.17 of 22 Rs.13,36,000/- is being awarded to P-1 and Rs.3,00,000/- each is being awarded to P-4 and P-5.
20. RELEASE Out of the above awarded amount of Rs.13,36,000/- to P- 1, an amount of Rs.1,36,000/-, alongwith interest till deposit, is directed to be released to P-1 by transferring it into her savings bank account bearing no. 607810110011887 being maintained at Bank of India, Mahipalpur Branch, Near MCD Boys School, Vasant Kunj, Main Road, New Delhi with IFSC Code BKID0006078 and remaining amount of Rs.12,00,000/- is directed to be kept in 12 annual FDRs of Rs.1,00,000/- each for a period of 1 year to 12 years in succession with cumulative interest. The amount of FDRs on maturity would also be released in the same account.
Out of the above awarded amount of Rs.3,00,000/- each to P-4 and P-5, an amount of Rs.50,000/- each, alongwith interest till deposit, is directed to be released to them by transferring it into their savings bank accounts bearing nos. 607810110011885 and 607810110011886, both being maintained at Bank of India, Mahipalpur Branch, Near MCD Boys School, Vasant Kunj, Main Road, New Delhi with IFSC Code BKID0006078 respectively and remaining amount of Rs.2,50,000/- each is directed to be kept in 5 annual FDRs of Rs.50,000/- each for a period of 1 year to 5 years in succession with cumulative interest. The amount of FDRs on maturity would also be released in their same accounts.
The bank (s) shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the claimants i.e. the savings bank account(s) of the claimant(s) shall be MACP No.124/15 Page no.18 of 22 individual savings bank account(s) and not a joint account(s). However, the concerned bank (s) shall permit the claimant (s) to withdraw money from their above savings bank accounts by means of a withdrawal form.
The original fixed deposits shall be retained by the UCO Bank, PHC, New Delhi in safe custody. However, the statement containing FDR numbers, FDR amounts, dates of maturity and maturity amounts shall be furnished by bank to the claimant(s).
The maturity amounts of the FDR(s) be credited by Electronic Clearing System (ECS) in the above mentioned savings bank account of the claimant (s).
No loan, advance or withdrawal or pre-mature discharge be allowed on the fixed deposits without permission of the Court.
P-1 has already produced before this tribunal original passbooks of all the petitioners with requisite endorsements/letter/ certificate of the Bank Manager concerned that no cheque books or ATM cards shall be issued to them in the said accounts and she also filed copies thereof on record, alongwith copies of aadhaar cards and PAN cards of all the petitioners. It is directed that the concerned banks shall not issue any cheque books and/or debit cards etc. to the claimants in future also.
21. LIABILITY Though, all the respondents are held jointly and severally liable to pay the awarded amount of compensation, but since R-3/ Insurance Co. has not proved any violation of the terms and conditions of insurance policy, R-3 is directed to deposit the above award amount with UCO Bank, Patiala House Court Branch, alongwith interest @ 9% MACP No.124/15 Page no.19 of 22 per annum, by way of crossed cheques/DDs in name of the petitioners within 30 days from today failing which it will be liable to pay interest at the rate of 12% per annum for the period of delay. In case even after passage of 90 days from today, R-3 fails to deposit this compensation with proportionate interest, in that event, in light of the judgment of the Hon'ble High Court of Delhi in the case of New India Assurance Company Limited Vs. Kashmiri Lal, 2007 ACJ 688, this compensation shall be recovered by attaching the bank account of the insurance company with a cost of Rs.5,000/-.
R-3 shall inform the claimants and their counsel through registered posts that the cheques of the awarded amount is being deposited so as to facilitate them to collect their cheques.
22. The copy of this award be given to the parties free of cost. Ahlmad is directed to send the copy of the award to Ld. Metropolitan Magistrate concerned and Delhi Legal Services Authority in view of Judgment titled as Rajesh Tyagi Vs. Jaibir Singh & Ors. passed in FAO no.842/2003 dated 12.12.2014.
23. Further Nazir is directed to maintain the record in Form VII as per the directions given by the Hon'ble Delhi High Court in the above case on 15.12.2017.
24. The particulars of Form-V of the Modified Claims Tribunal Agreed Procedure, in terms of directions given by the Hon'ble Delhi High Court in the above case on 15.12.2017, are as under:
1. Date of the accident 30.03.2015
2. Date of intimation of the accident by Not given I.O. to the Claims Tribunal.
3. Date of intimation of the accident by Not given I.O. to the Insurance company.
MACP No.124/15 Page no.20 of 22
4. Date of filing of Report u/s.173 Cr.PC Not given before the Metropolitan Magistrate.
5. Date of filing of Details Accident Report (DAR) by IO before Claims 12.10.2015 Tribunal.
6. Date of service of DAR on Insurance 12.10.2015 Company
7. Date of service of DAR on 12.10.2015 claimant(s).
8. Whether DAR was complete in all Yes respects?
9. If not, state deficiencies in the DAR No
10. Whether the police has verified the Yes documents file with DAR?
11. Whether there was any delay or deficiency on the part of the DAR has been filed after about 6½ Investigating Officer? If so, whether months of the accident any action/direction warranted?
12. Date of appointment of Designated Not given Officer by the Insurance Company.
13. Name, address and contact number of the Designated Officer of Not given Insurance Co.
14. Whether the Designated Officer of the Insurance Company submitted his No report within 30 days of the DAR?
15. Whether the Insurance Company admitted the liability? If so, whether the Designated Officer of the Legal offer filed but not accepted by Insurance Company fairly computed the petitioners the compensation in accordance with law.
16. Whether there was any delay or deficiencies on the part of the Designated Officer of the Insurance Delay in filing reply Company? If so, whether any action/direction warranted?
17. Date of response of the claimant(s) of Legal offer not accepted the offer of the Insurance Company.
18. Date of the award 06.08.2018
19. Whether the award was passed with No the consent of the parties?
20. Whether the claimant(s) were Yes directed to open savings bank MACP No.124/15 Page no.21 of 22 account(s) near their place of residence?
21. Date of order by which claimant(s) were directed to open savings bank account(s) near his place of residence and produce PAN Card and Adhaar Card and the direction to 06.02.2018 the bank not issue any cheque book/ debit card to claimants and make an endorsement to this effect on passbooks.
22. Date on which the claimant(s) produced the passbook of their savings bank account near the place 09.05.2018 of their residence alongwith endorsement, PAN & Adhaar Cards?
23. Permanent Residential Address of the R/o. 86/3, A-Block, Mahipal Pur Claimant(s) Extension, ND-37.
& H. No. D-216, Gali No.4, Block B, Roshan Nagar, Mandir Wali Gali, Agwanpur Faridabad, Haryana-
121013.
24. Details of savings bank account (s) of P-1 = 607810110011887 the claimant(s) and the address of the P-4 = 607810110011885 bank with IFSC Code. P-5 = 607810110011886 All being maintained at Bank of India, Mahipalpur Branch, Near MCD Boys School, Vasant Kunj, Main Road, New Delhi with IFSC Code BKID0006078.
25. Whether the claimant(s) savings bank account(s) is near his/her place of Yes residence?
26. Whether the claimant(s) were examined at the time of passing of Yes the award to ascertain his/their financial condition?
25. File be consigned to Records after necessary formalities. Separate file be prepared for compliance report and be put up on Digitally signed 15.11.2018. MANOJ by MANOJ KUMAR KUMAR NAGPAL NAGPAL Date: 2018.08.09 10:48:20 +0530 Announced in the open court. (M.K.Nagpal) on 06.08.2018 PO/MACT, New Delhi MACP No.124/15 Page no.22 of 22