Delhi District Court
Mrs. Rekha Mathur vs Mrs. Prakashni Raj on 26 August, 2014
IN THE COURT OF MS. GEETANJLI GOEL, PO: MOTOR ACCIDENT
CLAIMS TRIBUNAL2, PATIALA HOUSE COURTS, NEW DELHI
Suit No.20/14
Date of Institution: 12.08.2009
IN THE MATTER OF:
Mrs. Rekha Mathur
W/o Shri G.P. Mathur
R/o H.No.2, II nd Floor
Block No.1, Spring Field Colony
Sector 3132, Amar Nagar
Faridabad 121003
Haryana. ...Petitioner
Versus
1. Mrs. Prakashni Raj
W/o Shri B.K. Reddy
R/o 369B, Regent Shipra Suncity
Indirapuram
Ghaziabad, U.P. (Owner)
2. National Insurance Co. Ltd.
D.O. 10, Flat No.101106
NI, BMC House
Connaught Place
New Delhi01. (Insurer)
3. Shri V.K. Reji
S/o Shri V.K. Kuttpaapn
R/o 369E, Regent Shipra Suncity
Indirapuram
Suit no.20/14 Page 1 of 40
Rekha Mathur Vs. Parkashni
Ghaziabad
U.P. (Driver) ...Respondents
Final Arguments heard : 05.08.2014 Award reserved for : 26.08.2014 Date of Award : 26.08.2014 AWARD
1. Vide this judgmentcumaward, I proceed to decide the petition filed u/s 166 and 140 of Motor Vehicle Act, 1988, as amended uptodate (hereinafter referred to as the Act) for grant of compensation in a road accident.
2. It is the case of the petitioner that on 12.06.2006 at about 20.30 hrs, the petitioner was going on foot along with her daughter to the market of Sector 62, Noida, from her daughter's house at Sector 62, Noida, when they reached near the market, all of sudden a motor car bearing No. UP14V4202 make Maruti Alto driven by the driver of respondent No.1, came from the back side in a very rash and high speed, negligently without caring for the traffic rules and hit the claimant / injured. As a result of the forceful impact the petitioner sustained serious grievous injuries as fracture of left idcal plattond and lat nalledi (as mentioned in MLC), puncture wound and all over the body. It is stated that FIR No.222/06 under Sections 279/338 IPC was registered at PS Sector 58, Noida on 24.06.2006 in respect of the accident. It is stated that the Suit no.20/14 Page 2 of 40 Rekha Mathur Vs. Parkashni accident took place due to the rash and negligent driving on the part of the driver of the offending vehicle bearing No.UP14V4202 (make Maruti Alto), who drove the vehicle at a very high speed rashly, negligently and without caring for the rules of the traffic.
3. It is stated that the petitioner was 56 years old and a housewife and she was earning approximately Rs.3,500/ p.m. It is stated that the petitioner was treated at Fortis Hospital, Noida and Indraprastha Apollo Hospital, Delhi and incurred Rs.1,40,000/ on her treatment and Rs.50,150/ was required for future expenses on treatment as advised. It is averred that the petitioner not only suffered unnatural losses and difficulties mentally and physically but also could not perform her routine work properly for about 06 months. It is stated that the petitioner is entitled to get compensation for pain and suffering, loss of enjoyment of life, loss of impairment of bodily integrity, nervous shock, loss of pleasure of amenities of life, shortening of life, disfigurement, discomfort and inconvenience, loss of income, loss of working capacity also besides other compensation. It is averred that the petitioner suffered permanent disability due to the injuries sustained in the accident. It is stated that the accident took place due to the rash and negligent driving of the driver of the respondent No. 1, who drove the vehicle at a very high speed, rashly, negligently and without caring for the traffic rules. It is averred that the respondents No.1 and 2 being the owner and insurer are jointly and severally liable to pay the compensation to the petitioner for the loss caused and they are liable for the losses and damages suffered by the petitioner. It is prayed that an amount of Rs. Suit no.20/14 Page 3 of 40 Rekha Mathur Vs. Parkashni 5,00,000/ be awarded as compensation in favour of the petitioner and against the respondents.
4. Written statement was filed on behalf of the respondents No.1 and 3 taking the preliminary objections that the petitioner is not entitled for any relief as neither the vehicle bearing No.UP14V4202 Maruti Alto car owned by the respondent No.1 was involved in the accident nor the vehicle was driven by the respondent No.3 in a rash and negligent manner. It is averred that the petitioner herself was careless and negligent and due to her carelessness she sustained injuries and implicated the vehicle bearing No.UP14V4202 Maruti Alto car which just came in the vicinity. It is averred that the amount claimed is without any basis or foundation. It is averred that if at all any liability arose in respect of vehicle bearing No.UP14V4202 Maruti Alto car, the same is comprehensively insured with the respondent No.2, hence, the respondents No.1 and 3 are not liable to compensate the petitioner, nor she is entitled to receive any relief from the respondents No.1 and 3. The averments made in the claim petition were denied. It is specifically denied that the petitioner is having an income of Rs.3500/ p.m. It is averred that the petitioner herself was negligent and careless and falsely implicated the respondents No.1 and 3 and that the alleged accident was not caused by the vehicle No.UP14V4202 Maruti Alto Car. It is stated that the vehicle belonging to respondent No.1 bearing registration No.UP14V4202 Maruti Alto car was never involved in any alleged accident and the respondent No.1 was falsely implicated and made Suit no.20/14 Page 4 of 40 Rekha Mathur Vs. Parkashni party to the petition. The petitioner suffered the alleged injuries due to her own fault and negligence.
5. The respondent No.2 filed the written statement taking the preliminary objections that the petition does not disclose any cause of action against the respondent No.2. It is averred that the respondent No.2 denies all the liabilities in the case as the insurer, since the vehicle No.UP14AV4202 was being driven by a person without permission or authority of the insured and the vehicle was used contrary to the terms of the Insurance Policy and was being driven by its driver without holding a proper and valid driving license and the owner of the vehicle having knowledge about not having the DL by the driver of the vehicle had willfully breached the terms and conditions of the policy. The averments made in the claim petition were denied. It is averred that the vehicle No.UP14V4202 is insured in the name of Smt. Prakashini Raj vide policy No.1107592 valid for the period from 23.05.2006 to 22.05.2007. It is averred that the claim of the petitioner is false and vexatious to the petitioner's own knowledge and the amount claimed is totally vague, illusory and highly excessive in the circumstances of the case. It is averred that the accident, if any, was caused due to negligence on the part of the petitioner herself.
6. Vide order dated 10.12.2009 of my learned predecessor the petitioner was directed to implead the driver. Defence of the respondent No.2 was struck off vide order dated 4.8.2010. An application under order 1 rule 10 CPC was Suit no.20/14 Page 5 of 40 Rekha Mathur Vs. Parkashni filed on behalf of the petitioner for impleading the driver of the offending vehicle as respondent No.3 which was allowed vide order dated 11.2.2011 of my learned predecessor. Another application was filed on behalf of the petitioner for issuance of disability certificate which was allowed vide order dated 11.2.2011. Vide order dated 26.7.2011 of my learned predecessor the respondent No.1 was proceeded exparte. From the pleadings of the parties, following issues were framed vide order dated 01.12.2011 of my learned predecessor:
1. Whether the petitioner sustained injuries in the accident which occurred on 12.06.2006 at about 8.30 pm near Sector 62 Market, Noida, caused by vehicle no.UP14V4202 owned by respondent no.1, insured with respondent no.2 and driven by respondent No.3? OPP
2. Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
3. Relief.
7. Vide order dated 3.5.2012 of my learned predecessor the respondents No.2 and 3 were proceeded exparte and the same was also recorded in the order sheet dated 6.3.2013. PE was closed vide order dated 6.3.2013 and matter was listed for final arguments. Thereafter an application under order 9 rule 7 CPC was filed on behalf of the respondent No.2 which was allowed vide order dated 8.10.2013 of my learned predecessor. An application under Section 170 MV Act was filed on behalf of the respondent No.2 which was Suit no.20/14 Page 6 of 40 Rekha Mathur Vs. Parkashni allowed vide order dated 1.2.2014.
8. Shri Devanand Sharma, Billing Clerk, Indraprastha Apollo Hospital was produced in the witness box as PW1 and had brought the summoned record pertaining to the treatment of patient Rekha Mathur. The discharge summary is Ex.PW1/A, copy of treatment record of the patient Rekha Mathur is Ex.PW1/B (colly) and copies of bills of patient Rekha Mathur are Ex.PW1/C (colly). On 1.2.2014 it was submitted by the learned counsel for the respondent No.2 that he did not want to crossexamine PW1 as he was a formal witness and the respondents No.1 and 3 were already exparte.
9. The petitioner Rekha Mathur entered into the witness box as PW2 and led her evidence by way of affidavit which is Ex.PW2/A reiterating the averments made in the claim petition. She stated that due to the accident she received multiple / serious grievous injuries all over the body as per the medical records / MLC report. She was immediately removed to Fortis Hospital, Noida, where she was given first aid and the MLC was prepared after medical examination. Thereafter on 13.06.2006, she was shifted to Indraprastha Apollo Hospital, Sarita Vihar, Delhi, for further treatment and higher medical management, where she remained till 17.06.2006 and during the admission many tests were done and on the basis of the test reports operations were done for 'wound debridement and open reduction internal fixation right fibula + internal and external fixation left tibia sparing ankle' due Suit no.20/14 Page 7 of 40 Rekha Mathur Vs. Parkashni to the accident only which was caused by the respondent No.3 and she was confined to bed rest for about six months and she suffered mental pain and agony, loss of enjoyment of life, lots of harassment, inconvenience, loss of family work. She stated that she suffered great pain, agony, mental torture and shock due to the grievous injuries. Copy of Ration Card is Ex.PW2/1, attested copy of FIR is Ex.PW2/2, MLC is Mark A, vouchers and bills are Ex.PW2/3 (colly), Discharge Summary is Mark B, Disability Certificate is Ex.PW2/4, estimate of future treatment issued by Indraprastha Apollo Hospital is Ex.PW2/5 and attendant fee charges is Mark C.
10. Ms. Ruchi Mathur who is the daughter of the petitioner entered into the witness box as PW3 and led her evidence by way of affidavit which is Ex.PW3/A. She deposed that she is an eyewitness and on 12.06.2006 at about 8.30 p.m, when she along with her mother Mrs. Rekha Mathur was going to the nearby market of Sector 62, Noida by foot and reached near the market, all of a sudden a motor car bearing No. UP14V4202 make Maruti Alto driven by its driver respondent No.3 and owned by the respondent No.1, came from the back side in a very high speed, most rashly and negligently without blowing any horn and without caring for the traffic rules and hit the mother of PW3. As a result of the forceful impact the petitioner fell down on the road and sustained serious grievous injuries all over the body apart from the fractures as mentioned in the MLC/ medical records. She stated that FIR No.222/06 under Sections 279/338 IPC was registered at PS Sector 58, Noida Suit no.20/14 Page 8 of 40 Rekha Mathur Vs. Parkashni on 24.06.2006 in respect of the accident. She stated that the accident took place due to the rash and negligent driving on the part of the respondent No.3 (driver) who drove the offending vehicle at a very high speed rashly, negligently, carelessly, recklessly and without observing the traffic rules and caring for safety of the public at large. She further deposed to the same effect as PW2. She stated that her mother was confined to bed rest for about six months under nursing care and the petitioner paid a sum of Rs.4,500/ p.m. upto four months as attendant charges also. The carbon copy of FIR is Ex.PW3/1 and the estimate given by Indraprastha Apollo Hospital for surgery to be conducted in respect of her mother for removal of implant is Ex.PW3/2, Xray report is Ex.PW3/3 and prescription is Ex.PW3/4.
11. On behalf of the respondent No.2, Shri Vijay Kumar Manjhi, Administrative Officer appeared in the witness box as R2W1 and had brought the insurance policy which is Ex.R2W1/A. He stated that they had issued notice under order 12 rule 8 CPC through their counsel which is Ex.R2W1/B and postal receipt is Ex.R2W1/C. He stated that as the driver of the offending vehicle was not having a valid and effective driving license at the time of the accident, therefore, their company was not liable to pay any claim. RE was closed on 1.4.2014.
12. I have heard the learned counsel for the petitioner as well as the learned counsel for the respondent No.3 and perused the record. The Suit no.20/14 Page 9 of 40 Rekha Mathur Vs. Parkashni petitioner was also examined on 5.8.2014 in terms of the judgment of the Hon'ble High Court on 11.1.2013 in MACA No.792/2006 titled Oriental Insurance Co. Ltd. v. Ranjit Pandey and Ors.
13. My findings on the specific issues are as under:
Issue No. 1
14. As the petition has been filed U/s 166 M.V Act it was incumbent upon the petitioner to prove that she sustained injuries in an accident caused due to rash and negligent driving by the driver of the offending vehicle. To determine the negligence of the driver of the offending vehicle it has been held in National Insurance Company Ltd. vs Pushpa Rana & Another 2009 Accident Claims Journal 287 as follows:
"The last contention of the appellant insurance company is that the respondents/claimants should have proved negligence on the part of the driver and in this regard the counsel has placed reliance on the judgment of the Hon'ble Apex Court in Oriental Insurance Company Ltd. V. Meena Variyal (supra). On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced: (i) certified copy of the criminal record of criminal case in FIR No.955 of 2004, pertaining to involvement of offending vehicle (ii) criminal record showing completion of investigation of police and issue of charge sheet under sections 279/304A, Indian Penal Code against the driver;
(iii) certified copy of FIR, wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical Suit no.20/14 Page 10 of 40 Rekha Mathur Vs. Parkashni inspection report of offending vehicle and vehicle of deceased.
These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under the Motor Vehicle Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Hence, this contention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on part of the driver."
It is established law that in a claim petition under Motor Vehicle Act, the standard of proof to establish rash and negligent driving by the driver of the offending vehicle is not at par with the criminal case where such rashness and negligence is required to be proved beyond all shadow of reasonable doubt. In Kaushnamma Begum and others v. New India Assurance Company Limited, it was inter alia held by the Hon'ble Supreme Court that the issue of wrongful act or omission on the part of the driver of the motor vehicle involved in the accident has been left to a secondary importance and mere use or involvement of motor vehicle in causing bodily injury or death to a human being or damage to property would make the petition maintainable under Sections 166 and 140 of the Motor Vehicle Act.
15. The case of the petitioner is that on 12.06.2006 at about 20.30 hrs, the petitioner was going on foot along with her daughter to the market of Sector 62, Noida, from her daughter's house at Sector 62, Noida, when they reached near the market, all of sudden a motor car bearing No.UP14V4202 make Maruti Alto driven by the driver of respondent No.1, came from the back side in Suit no.20/14 Page 11 of 40 Rekha Mathur Vs. Parkashni a very rash and high speed, negligently without caring for the traffic rules and hit the claimant / injured. As a result of the forceful impact the petitioner sustained serious grievous injuries as fracture of left idcal plattond and lat nalledi (as mentioned in MLC), puncture wound and all over the body. It was stated that FIR No.222/06 under Sections 279/338 IPC was registered at PS Sector 58, Noida on 24.06.2006 in respect of the accident. It was stated that the accident took place due to the rash and negligent driving on the part of the driver of the offending vehicle bearing No.UP14V4202 (make Maruti Alto), who drove the vehicle at a very high speed rashly, negligently and without caring for the rules of the traffic. In paras 2 and 3 of her affidavit Ex.PW2/A the petitioner had reiterated the mode and manner of the accident as stated in the claim petition. Likewise in paras 2 and 3 of her affidavit Ex.PW3/A PW3 had reiterated the mode and manner of the accident.
16. The petitioner has filed certified copies of the criminal record consisting of copy of FIR No.222/06 under sections 279/338 IPC, PS Sector 58, Noida, copy of charge sheet, copy of site plan, copy of mechanical inspection report of the offending vehicle and copy of DL of the respondent No.3. As per the FIR No.222/06 under sections 279/338 IPC, PS Sector 58, Noida the case was registered on the basis of complaint of Ms. Ruchi Mathur, daughter of the petitioner who has been examined as PW3 wherein she has stated the manner in which the accident took place. As per the charge sheet respondent No.3 has been charge sheeted for the offence under sections 279/338 IPC. In Suit no.20/14 Page 12 of 40 Rekha Mathur Vs. Parkashni Basant Kaur and others v. Chattar Pal Singh and others 2003 ACJ 369 MP (DB) it was observed that registration of criminal case against the driver of the offending vehicle was enough to record a finding that the driver of the offending vehicle was responsible for causing the accident.
17. The respondents No.1 and 3 had filed their written statement averring that the petitioner is not entitled for any relief as neither the vehicle bearing No.UP14V4202 Maruti Alto car owned by the respondent No.1 was involved in the accident nor the vehicle was driven by the respondent No.3 in a rash and negligent manner. It was averred that the petitioner herself was careless and negligent and due to her carelessness she sustained injuries and implicated the vehicle bearing No.UP14V4202 Maruti Alto car which just came in the vicinity as also the respondents No.1 and 3 and the alleged accident was not caused by the vehicle No.UP14V4202 Maruti Alto Car. It was averred that the petitioner suffered the alleged injuries due to her own fault and negligence. However the respondents No.1 and 3 did not appear to crossexamine PW2 and PW3 and were proceeded exparte. During cross examination by the learned counsel for the insurance company - respondent No.2 PW2 denied the suggestion that she could not say how the accident had taken place volunteered she was hit behind. She denied the suggestion that the accident had taken place due to her negligence. Thus PW2 volunteered that she was hit behind.
Suit no.20/14 Page 13 of 40 Rekha Mathur Vs. Parkashni
18. During crossexamination by the learned counsel for the respondent No.2 PW3 admitted that she did not have any idea about the speed of the offending vehicle as it had hit from behind. She denied the suggestion that the driver of the offending vehicle was not driving the vehicle rashly and negligently or that her mother was walking in the middle of the road. She stated that she had got her mother admitted in the hospital volunteered the accident had taken place in front of the hospital. She stated that whatever she had stated in her affidavit Ex.PW3/A regarding the manner of accident was stated in the FIR. She stated that she had informed the police immediately after the accident. Thus PW3 admitted that she did not have any idea about the speed of the offending vehicle as it had hit from behind. She stated that she had got her mother admitted in the hospital and volunteered that the accident had taken place in front of the hospital. She stated that whatever she had stated in her affidavit Ex.PW3/A regarding the manner of accident was stated in the FIR and she also stated that she had informed the police immediately after the accident. A perusal of the record shows that the accident had taken place on 12.6.2006 whereas the FIR was registered only on 24.6.2006 but it was stated in the complaint that as the complainant was getting her mother treated she could not lodge the report earlier. The certificate in lieu of MLC from Fortis Hospital is Mark A and the same is dated 12.6.2006 and shows alleged h/o RTA. Thus nothing has come out in the testimony of PW2 and PW3 to doubt the manner of the accident as stated by them. Further the respondents No.1 and 3 did not appear to crossexamine Suit no.20/14 Page 14 of 40 Rekha Mathur Vs. Parkashni them and they have also not led any evidence to dispute the version of the accident put forth by the petitioner or in the criminal record. Further the criminal record has been placed on record which shows that the respondent No.3 has already been charge sheeted for the offence under Sections 279/338 IPC. The respondents No.1 and 3 have not adduced any evidence to prove any other version of the accident or even to show that the accident had taken place due to the negligence of the petitioner herself. The fact that the charge sheet has been filed against the respondent No.3 and he is being tried for the same has not been disputed. Thus in view of the testimony of the witnesses and documents on record which have remained unrebutted, the negligence of respondent No.3 has been prima facie proved.
19. It was stated that the petitioner sustained serious grievous injuries as fracture of left idcal plattond and lat nalledi (as mentioned in MLC), puncture wound and all over the body. The certificate in lieu of MLC is on record which shows the injuries sustained by the petitioner. The petitioner has also placed on record other documents in respect of her treatment. Thus it stands established that the petitioner had sustained injuries in the alleged accident. As such issue No.1 is decided in favour of the petitioner and against the respondents.
Suit no.20/14 Page 15 of 40 Rekha Mathur Vs. Parkashni ISSUE No.2
20. Since issue No.1 has been decided in favour of the petitioner she would be entitled to compensation. The law is well settled that the compensation has to be awarded in personal injury cases under the following heads: (1) for loss of earnings during the period of treatment (2) loss of future earnings on account of permanent disability (3) expenses suffered by her on her treatment, hospitalization, medicines, transportation, nourishing food etc. In addition, she is further entitled to nonpecuniary damages/general damages which include (1) damages for pain, suffering and trauma as a consequence of injuries and (2) loss of expectation of life.
MEDICINES AND MEDICAL TREATMENT
21. The case of petitioner is that due to the accident on 12.6.2006 she sustained serious grievous injuries as fracture of left idcal plattond and lat nalledi (as mentioned in MLC), puncture wound and all over the body. It was stated that the petitioner was treated at Fortis Hospital, Noida and Indraprastha Apollo Hospital, Delhi and incurred Rs.1,40,000/ on her treatment and Rs.50,150/ was required for future expenses on treatment as advised. It was averred that the petitioner suffered permanent disability due to the injuries sustained in the accident. The petitioner in paras 4, 5 and 6 of her affidavit Ex.PW2/A had stated to that effect. She stated that due to the Suit no.20/14 Page 16 of 40 Rekha Mathur Vs. Parkashni accident she received multiple / serious grievous injuries all over the body as per the medical records / MLC report. She was immediately removed to Fortis Hospital, Noida, where she was given first aid and the MLC was prepared after medical examination. Thereafter on 13.06.2006 she was shifted to Indraprastha Apollo Hospital, Sarita Vihar, Delhi, for further treatment and higher medical management, where she remained till 17.06.2006 and during the admission many tests were done and on the basis of the test reports operations were done for 'wound debridement and open reduction internal fixation right fibula + internal and external fixation left tibia sparing ankle' due to the accident only which was caused by the respondent No.3 and she was confined to bed rest for about six months and she suffered mental pain and agony, loss of enjoyment of life, lots of harassment, inconvenience, loss of family work. She stated that she suffered great pain, agony, mental torture and shock due to the grievous injuries. MLC is Mark A, vouchers and bills are Ex.PW2/3 (colly), Discharge Summary is Mark B, Disability Certificate is Ex.PW2/4, estimate of future treatment issued by Indraprastha Apollo Hospital is Ex.PW2/5 and attendant fee charges is Mark C. PW3 had also deposed to the same effect as PW2. The estimate given by Indraprastha Apollo Hospital for surgery to be conducted in respect of her mother i.e. the petitioner for removal of implant is Ex.PW3/2, Xray report is Ex.PW3/3 and prescription is Ex.PW3/4.
Suit no.20/14 Page 17 of 40 Rekha Mathur Vs. Parkashni
22. The petitioner in support of her case had also produced PW1 who had brought the summoned record pertaining to the treatment of patient Rekha Mathur. The discharge summary is Ex.PW1/A, copy of treatment record of the patient Rekha Mathur is Ex.PW1/B (colly) and copies of bills of patient Rekha Mathur are Ex.PW1/C (colly). The certificate in lieu of MLC from Fortis Hospital is Mark A and shows the injuries as stated by the petitioner. The documents placed on record by the petitioner and produced by PW1 show that the petitioner had sustained Grade II Compound fracture lower third tibial fracture left with lower third fibular fracture left. The documents also show that the petitioner was admitted to the hospital on 13.6.2006 and discharged on 17.6.2006. Thus the injuries were grievous in nature. Further the disability certificate is Ex.PW2/4 and as per the same the petitioner was an operated case of fracture both bones left leg with restriction of range of motion left ankle joint and she had 20% permanent physical impairment in relation to her left lower limb. Thus the petitioner had also sustained disability due to the accident.
23. During crossexamination by the learned counsel for the insurance company - respondent No.2 PW2 denied the suggestion that her treatment is complete volunteered she had to undergo another operation. She admitted that she had not placed on record any document to show that she had to undergo another operation. She admitted that her children had contributed towards her medical expenses on account of the accident. She denied the Suit no.20/14 Page 18 of 40 Rekha Mathur Vs. Parkashni suggestion that she had no difficulty in walking at present volunteered screw of the plate and rod which were inserted were loose due to which she had to get operated and she could not walk properly at present and the doctor had asked her to get the operation done quickly. She denied the suggestion that she had not suffered any functional disability on account of the accident. She denied the suggestion that she had not spent Rs.5 lacs on the medical expenses. She stated that she had placed on record all the bills which were available till the filing of evidence. During crossexamination by the learned counsel for the respondent No.2 PW3 denied the suggestion that Ex.PW3/2 is a procured document. She stated that she is married and residing at Noida after her marriage i.e. at M410, Vivek Vihar, Sector 82, Noida. She stated that at present her mother was residing with her though she was residing at Ram Bagh at the time of the accident. She denied the suggestion that her mother was still residing at Ram Bagh or that she did not reside with her or that she did not attend on her. Thus PW3 was crossexamined on where PW3 was residing and where the petitioner was residing but nothing much turns on the same and fresh address of the petitioner has been placed on record.
24. PW2 had stated that she had placed on record all the bills which were available till the filing of evidence. PW1 had filed the bill of Indraprastha Apollo Hospital Ex.PW1/C (colly) for a sum of Rs.58,347/. The petitioner has also placed on record other bills and in all has filed bills for an amount of Rs. 1,01,487/ approximately. Looking to the injuries the petitioner would be entitled Suit no.20/14 Page 19 of 40 Rekha Mathur Vs. Parkashni to the amount of the medical bills. Further the petitioner would have incurred some expenditure towards medicines and medical treatment even during the subsequent period. The petitioner had filed an estimate from Apollo Hospital Ex.PW2/5 for a sum of Rs.99,682/ which is also Ex.PW3/2 and PW3 had also placed on record the report of the doctor. PW2 and PW3 were extensively crossexamined on the same and PW2 had volunteered that she had to undergo another operation. She admitted that she had not placed on record any document to show that she had to undergo another operation though the documents were filed subsequently by PW3. She had also volunteered that the screw of the plate and rod which were inserted were loose due to which she had to get operated and she could not walk properly at present and the doctor had asked her to get the operation done quickly. PW3 denied the suggestion that Ex.PW3/2 is a procured document. Even the documents filed by PW3 mention that the petitioner wanted removal of implant and as such it cannot be disputed that the implant was still to be removed. However no doctor has been produced in the witness box to prove the estimate or to show that the said amount would indeed be required. However some amount would be required for the purpose. As such an amount of Rs.1,50,000/ (Rs.One Lakh Fifty Thousand only) is awarded towards medicines and medical treatment including the amount of the bills and for future treatment. Suit no.20/14 Page 20 of 40 Rekha Mathur Vs. Parkashni PAIN AND SUFFERING AND LOSS OF AMENITIES OF LIFE
25. It has been held in Divisional Controller, K. S. R. T. C v Mahadeva Shetty and another AIR 2003 Supreme Court 4172 as under:
13."The damages for vehicular accidents are in the nature of compensation in money for loss of any kind caused to any person. In case of personal injury the position is different from loss of property. In the later case there is possibility of repair or restoration. But in the case of personal injury, the possibility of repair or restoration is practically nonexistent. In Parry V. Cleaver (1969 1 All. E. R. 555) Lord Morris stated as follows:
"To compensate in money for pain and for the physical consequences is invariably difficult, but...... no other process can be devised than that of making monetary assessment."
The case of the petitioner is that due to the accident on 12.6.2006 she sustained serious grievous injuries as fracture of left idcal plattond and lat nalledi (as mentioned in MLC), puncture wound and all over the body. It was stated that the petitioner was treated at Fortis Hospital, Noida and Indraprastha Apollo Hospital, Delhi. It was averred that the petitioner suffered permanent disability due to the injuries sustained in the accident. She stated that she was immediately removed to Fortis Hospital, Noida, where she was given first aid and the MLC was prepared after medical examination. Thereafter on 13.06.2006 she was shifted to Indraprastha Apollo Hospital, Suit no.20/14 Page 21 of 40 Rekha Mathur Vs. Parkashni Sarita Vihar, Delhi, for further treatment and higher medical management, where she remained till 17.06.2006 and during the admission many tests were done and on the basis of the test reports operations were done for 'wound debridement and open reduction internal fixation right fibula + internal and external fixation left tibia sparing ankle' due to the accident only which was caused by the respondent No.3 and she was confined to bed rest for about six months and she suffered mental pain and agony, loss of enjoyment of life, lots of harassment, inconvenience, loss of family work. She stated that she suffered great pain, agony, mental torture and shock due to the grievous injuries. The certificate in lieu of MLC from Fortis Hospital is Mark A and shows the injuries as stated by the petitioner. The documents placed on record by the petitioner and produced by PW1 show that the petitioner had sustained Grade II Compound fracture lower third tibial fracture left with lower third fibular fracture left. The documents also show that the petitioner was admitted to the hospital on 13.6.2006 and discharged on 17.6.2006. Thus the injuries were grievous in nature. Further the disability certificate is Ex.PW2/4 and as per the same the petitioner was an operated case of fracture both bones left leg with restriction of range of motion left ankle joint and she had 20% permanent physical impairment in relation to her left lower limb. Thus the petitioner had also sustained disability due to the accident. Looking at the nature of injuries and extent of treatment and that the accident pertains to the year 2006, the petitioner is awarded Rs.50,000/ (Rs.Fifty Thousand only) for pain and suffering.
Suit no.20/14 Page 22 of 40 Rekha Mathur Vs. Parkashni
26. It was stated that the petitioner was around 56 years of age at the time of the accident. During examination by the Tribunal the petitioner stated that she is 61/62 years old at present. During crossexamination by the learned counsel for the insurance company - respondent No.2 PW2 stated that she is 62 years old. Her date of birth is 27th February but she could not tell the year of birth. The copy of the ration card shows the age of the petitioner as 45 years and it is of 1999 and as per the same the petitioner would have been around 52 years old at the time of the accident. The medical documents record the age of the petitioner as 55 years. Accordingly the age of the petitioner is taken to be 55 years on the date of the accident i.e. 12.6.2006. Notice can be taken of the fact that on account of injuries sustained by her the petitioner may not have been able to perform her day to day duties towards her family and on account of the injuries suffered by her the petitioner may not have been able to enjoy the amenities of life. In the circumstances the petitioner is awarded a sum of Rs.20,000/(Rs.Twenty Thousand Only) for loss of amenities of life. The petitioner cannot however be held to be entitled to any amount towards disfiguration or loss of expectation of life.
CONVEYANCE AND SPECIAL DIET
27. Although the petitioner has not filed any document on record in order to prove the expenditure on conveyance however, notice can be taken of the fact that after the accident the petitioner was taken to Fortis Hospital, Noida and Suit no.20/14 Page 23 of 40 Rekha Mathur Vs. Parkashni thereafter she was taken to Indraprastha Apollo Hospital, Delhi and that after discharge from hospital she might have hired the services of private conveyance as she would not have been able to drive of her own or to use public conveyance. In the circumstances a sum of Rs.10,000/ (Rs. Ten Thousand only) would be just and proper towards conveyance charges.
28. Although the petitioner has not proved that she was advised special diet but looking at the nature of injuries sustained by the petitioner notice can be taken of the fact that the petitioner might have taken diet rich in protein, vitamins and minerals for speedier recovery. In the circumstances the petitioner is awarded a sum of Rs.5,000/ (Rs.Five Thousand only) for special diet.
29. The petitioner had mentioned in her affidavit Ex.PW2/A about producing cash receipt issued by the attendant against the nursing care for four months at the rate of Rs.4500/ per month which is Mark C. Even PW3 had deposed that her mother was confined to bed rest for about six months under nursing care and the petitioner paid a sum of Rs.4,500/ p.m. upto four months as attendant charges. However no witness has been produced to prove the said receipt nor to depose about the same. During crossexamination by the learned counsel for the insurance company - respondent No.2 PW2 denied the suggestion that she had not hired the services of an attendant or paid Rs. 4,500/ p.m to the attendant for four months. Although the petitioner has not Suit no.20/14 Page 24 of 40 Rekha Mathur Vs. Parkashni proved that she incurred any expenses towards attendant charges, however looking to the nature of injuries and that she sustained permanent disability the petitioner would have incurred some expenditure on attendant charges and a sum of Rs.6000/ is awarded towards attendant charges. LOSS OF INCOME
30. It is the case of the petitioner that at the time of the accident she was a housewife and she was earning approximately Rs.3,500/ p.m. It was averred that the petitioner not only suffered unnatural losses and difficulties mentally and physically but also could not perform her routine work properly for about 06 months. It was averred that the petitioner suffered permanent disability due to the injuries sustained in the accident. The petitioner had also stated that she was confined to bed rest for about six months. During crossexamination by the learned counsel for the insurance company - respondent No.2 PW2 admitted that she is a housewife. Even during examination by the Tribunal the petitioner stated that at the time of the accident she was not working and was a housewife and even at present she was not working. In Royal Sundaram Aliance Insurance Co. Ltd. v. Master Manmeet Singh & Ors. MAC. APP 590/2011 decided on 30.1.2012, the Hon'ble High Court of Delhi after considering various judgments laid down the principles for determination of loss on account of gratuitous services rendered by a housewife. It was held: Suit no.20/14 Page 25 of 40
Rekha Mathur Vs. Parkashni "34. To sum up, the loss of dependency on account of gratuitous services rendered by a housewife shall be:
(i) Minimum salary of a Graduate where she is a Graduate.
(ii) Minimum salary of a Matriculate where she is a Matriculate.
(iii) Minimum salary of a nonMatriculate in other cases.
(iv) There will be an addition of 25% in the assumed income in (i), (ii) and (iii) where the age of the homemaker is upto 40 years; the increase will be restricted to 15% where her age is above 40 years but less than 50 years; there will not be any addition in the assumed salary where the age is more than 50 years.
(v) When the deceased home maker is above 55 years but less than 60 years; there will be deduction of 25%; and when the deceased home maker is above 60 years there will be deduction of 50% in the assumed income as the services rendered decrease substantially. Normally, the value of gratuitous services rendered will be NIL (unless there is evidence to the contrary) when the home maker is above 65 years.
(vi) If a housewife dies issueless, the contribution towards the gratuitous services is much less, as there are greater chances of the husband's remarriage. In such cases, the loss of dependency shall be 50% of the income as per the qualification stated in (i), (ii) and (iii) above and addition and deduction thereon as per (iv) and (v) above.
(vii) There shall not be any deduction towards the personal and living expenses.
(viii) As an attempt has been made to compensate the loss of dependency, only a notional sum which may be upto Rs. 25,000/ (on present scale of the money value) towards loss of love and affection and Rs.10,000/ towards loss of consortium, if the husband is alive, may be awarded.
(ix) Since a homemaker is not working and thus not earning, no amount should be awarded towards loss of estate."
In the present case similar principles can be followed for computing the income of the petitioner. Since the petitioner was a housewife on the date of Suit no.20/14 Page 26 of 40 Rekha Mathur Vs. Parkashni the accident and there is nothing to show her educational qualification the value of gratuitous services rendered by her shall be taken as minimum salary of a nonmatriculate on the date of the accident i.e. 12.6.2006 which was Rs. 3,464/ p.m. i.e. Rs.41,568/ p.a.
31. The contention of the petitioner is that she had suffered 20% permanent disability in relation to left lower limb. In Raj Kumar v Ajay Kumar & Anr., (2011)1 SCC 343, the Hon'ble Supreme Court has held that :
"4..........The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or tribunal has to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. Thus Tribunal has to assess whether the petitioners suffered loss of future earning on account of permanent disability."
"6.Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily Suit no.20/14 Page 27 of 40 Rekha Mathur Vs. Parkashni improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accidents injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 ('Disabilities Act' for short). But if any of the disabilities enumerated in section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation''.
"8.......What requires to be assessed by the Tribunal is the effect of the permanently disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency)."
Thus it has been held that what requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured i.e. the functional disability and after assessing the loss of earning capacity in terms of Suit no.20/14 Page 28 of 40 Rekha Mathur Vs. Parkashni percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings. The disability certificate is Ex.PW2/4 and as per the same, the petitioner was an operated case of fracture both bones left leg with restriction of range of motion left ankle joint and she had 20% permanent physical impairment in relation to her left lower limb. Thus the petitioner had sustained permanent disability due to the accident. The doctor has not been examined in the present case who could depose about the effect of the disability on the working/ earning capacity of the petitioner. During cross examination by the learned counsel for the respondent No.2 PW2 had denied the suggestion that she had not suffered any functional disability on account of the accident. The petitioner has sustained permanent physical impairment of 20% in relation to her left lower limb which would have effect on the working capacity of the petitioner. In view of the same considering the nature of disability, the age of the petitioner and other attending circumstances the functional disability in her respect is taken as 10% in relation to the whole body. Accordingly the loss of income of the petitioner shall be 10% of Rs. 41,568/ i.e. Rs.4,156.8/ per annum rounded off to Rs.4,157/ p.a.
32. As observed above the petitioner was 55 years old at the time of the accident and suffered permanent disability. As per Sarla Verma v. DTC (2009) 6 SCC 121 the appropriate multiplier applicable shall be of 11. As regards the future prospects as observed in Royal Sundram case (supra) there will be an addition of 25% in the assumed income in (i), (ii) and (iii) where the age of the Suit no.20/14 Page 29 of 40 Rekha Mathur Vs. Parkashni homemaker is upto 40 years; the increase will be restricted to 15% where her age is above 40 years but less than 50 years; there will not be any addition in the assumed salary where the age is more than 50 years. In the present case the age of the petitioner is above 50 years so there cannot be any addition in the assumed salary. After applying the multiplier of 11, the petitioner shall be entitled to loss of income i.e. Rs.4,157X11 = Rs.45,727/ rounded off to Rs. 46,000/.
33. The petitioner had stated that she remained on bed rest for 6 months. There is however nothing to show the same nor to show that she was advised bed rest for six months or remained on bed rest for six months. The petitioner has also not filed any advice of the doctor by which she was prescribed rest for any specific period. In the absence of any advice of doctor, notice can be taken of the fact that petitioner may not have been able to perform her avocation for some period. Hence, the petitioner is held entitled to an amount of Rs.12,000/ for the period she may not have been able to work. Thus the petitioner would be entitled to a total sum of Rs.58,000/ on account of loss of income.
The total compensation is assessed as under:
Medicines and Medical treatment Rs.1,50,000/
Pain and suffering Rs.50,000/
Loss of Amenities of life Rs.20,000/
Conveyance Rs.10,000/
Special Diet Rs.5,000/
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Rekha Mathur Vs. Parkashni
Attendant charges Rs.6,000/
Loss of Income Rs.58,000/
TOTAL Rs.2,99,000/
APPORTIONMENT OF LIABILITY
34. The respondent No.1 is the owner of the offending vehicle, respondent No.3 is the driver of the offending vehicle and the respondent No.2 is the insurer in respect of the offending vehicle. It is the case of the respondent No. 2 that the respondent No.3 was not holding a valid and effective driving license at the time of the accident. In support of its case the respondent No.2 had produced R2W1 who stated that they had issued notice under order 12 rule 8 CPC through their counsel which is Ex.R2W1/B and postal receipt is Ex.R2W1/C. He stated that as the driver of the offending vehicle was not having a valid and effective driving license at the time of the accident, therefore, their company was not liable to pay any claim. During cross examination by the learned counsel for the petitioner R2W1 stated that Shri Jaswant Singh was appointed as Investigator in the matter. He stated that the investigator had already expired. He stated that they had not filed the report of investigation in the present case. They had not received his report officially. He stated that no subsequent investigator had been appointed volunteered he expired eight to ten days prior. He denied the suggestion that he was deposing Suit no.20/14 Page 31 of 40 Rekha Mathur Vs. Parkashni falsely in order to avoid the liability of the insurance company. Thus R2W1 was crossexamined mainly on getting the matter investigated and he stated that the investigator had expired and he was not crossexamined on behalf of the respondents No.1 and 3 as they were exparte. It is pertinent that the respondents No.1 and 3 had filed their written statement but no copy of the DL of the respondent No.3 was placed on record. The petitioner along with the certified copy of the criminal record at the time of final arguments had placed on record a copy of the DL but it is not possible to read anything in the same. As such it was for the respondents No.1 and 3 to produce the license which they have not done and after the filing of the written statement the respondents No.1 and 3 stopped appearing and were proceeded exparte. Once the respondent No.1 who is the owner and the respondent No.3 who is the driver have not appeared in the witness box to rebut the same or to show otherwise it stands established that the respondent No.3 did not possess a valid driving license on the date of the accident and as such the respondent No.1 had committed a breach of the terms of the policy.
35. In New India Assurance Co. Ltd. v. Sanjay Kumar & Ors. ILR 2007 (II) Delhi 733 the Hon'ble High Court observed as under:
"23. Where the assured chooses to run away from the battle i.e. fails to defend the allegation of having breached the terms of the insurance policy by opting not to defend the proceedings, a presumption could be drawn that he has done so because of the fact that he has no case to defend. It is trite that a party in Suit no.20/14 Page 32 of 40 Rekha Mathur Vs. Parkashni possession of best evidence, if he withholds the same, an adverse inference can be drawn against him that had the evidence been produced, the same would have been against said person. As knowledge is personal to the person possessed of the knowledge, his absence at the trial would entitle the insurance company to a presumption against the owner.
24. That apart, what more can the insurance company do other than to serve a notice under Order 12 Rule 8 of the Code of Civil Procedure calling upon the owner as well as the driver to produce a valid driving license. If during trial such a notice is served and proved to be served, non response by the owner and the driver would fortify the case of the insurance company."
This judgment was also relied upon in the judgment of the Hon'ble High Court of Delhi in National Insurance Company Ltd. v. Chander Prabha & Ors. MAC.APP.537/2009 decided on 30.7.2012 where it was observed:
"19. Thus, it is evident that the Appellant Insurance Company did whatever it could do to prove the breach of the terms of the policy. Since the Appellant was not in possession of the particulars of any driving license, it could not have made any fishing inquiry from any transport authority in this country. A driving license can be obtained by a driver from any place where he was residing at the time of grant of the driving license. Since Respondent No.4 and 6 failed to produce a driving license, it shall be presumed that Respondent No.4 did not possess a valid driving license at the time of the accident. Respondent No.6 has also not come forward with any explanation as to the circumstances under which he handed over the vehicle to Respondent No.4. An inference of breach of the terms of insurance policy can be drawn against Respondent No.6."Suit no.20/14 Page 33 of 40
Rekha Mathur Vs. Parkashni In the instant case notice under Order XII Rule 8 CPC was sent through registered post but there is nothing more that the insurance company could have done and once the particulars of the license were not available the insurance company could not be expected to make a fishing enquiry from any transport authority in the country.
36. It is now well settled that in such cases the insurance company would first have to satisfy the liability towards third party though it may subsequently recover the amount from the insured. The issue was considered at length by the Hon'ble High Court of Delhi in Sanjay v. Suresh Chand & Ors. F.A.O. No. 445/2000 decided on 3.8.2012 and it was observed:
"The issue of satisfying the third party liability even in case of breach of the terms of insurance policy is settled by three Judge Bench report in Sohan Lal Passi v. P. Sesh Reddy, (1996) 5 SCC 21. As per Section 149(2) of the Motor Vehicles Act (the Act), an insurer is entitled to defend the action on the grounds as mentioned under Section 149(2)(a)(i)(ii) of the Act. Thus, the onus is on the insurer to prove that there is breach of the condition of the policy. It is well settled that the breach must be conscious and willful. Even if a conscious breach on the part of the insured is established, still the insurer has a statutory liability to pay the compensation to the third party and will simply have the right to recover the same from the insured/tortfeasor either in the same proceedings or by independent proceedings as the case may be, as ordered by the Claims Tribunal or the Court. The Suit no.20/14 Page 34 of 40 Rekha Mathur Vs. Parkashni question of statutory liability to pay the compensation was discussed in detail by a two Judge Bench of the Supreme Court in Skandia Insurance Company Limited v. Kokilaben Chandravadan, (1987) 2 SCC 654 where it was held that exclusion clause in the contract of Insurance must be read down being in conflict with the main statutory provision enacted for protection of victim of accidents. It was laid down that the victim would be entitled to recover the compensation from the insurer irrespective of the breach of the condition of policy. The three Judge Bench of the Supreme Court in Sohan Lal Passi analyzed the corresponding provisions under the Motor Vehicles Act, 1939 and the Motor Vehicles Act, 1988 and approved the decision in Skandia. In New India Assurance Co., Shimla v. Kamla and Ors., (2001) 4 SCC 342, the Supreme Court referred to the decision of the two Judge Bench in Skandia, the three Judge Bench decision in Sohan Lal Passi and held that the insurer who has been made liable to pay the compensation to third parties on account of issuance of certificate of insurance, shall be entitled to recover the same if there was any breach of the policy condition on account of the vehicle being driven without a valid driving licence.
20. This Court in MAC APP. No.329/2010 Oriental Insurance Company Limited v. Rakesh Kumar and Others and other Appeals decided by a common judgment dated 29.02.2012, noticed some divergence of opinion in National Insurance Company Limited v. Kusum Rai & Ors., (2006) 4 SCC 250, National Insurance Company Limited v. Vidhyadhar Mahariwala & Ors., (2008) 12 SCC 701; Ishwar Suit no.20/14 Page 35 of 40 Rekha Mathur Vs. Parkashni Chandra & Ors. v. The Oriental Insurance Company Limited & Ors.,(2007) 10 SCC 650 and Premkumari & Ors. v. Prahalad Dev & Ors., (2008) 3 SCC 193 and held that in view of the three Judge Bench decision in Sohan Lal Passi (supra) and Swaran Singh, the liability of the Insurance Company visàvis the third party is statutory. If the Insurance Company successfully proves the conscious breach of the terms of the policy, then it would be entitled to recovery rights against the owner or driver, as the case may be."
Thus if the insurance company proves conscious breach of the terms of the policy, it would be entitled to recovery rights. In the instant case the insurance company has succeeded in discharging the onus in this regard and it stands established that the respondent No.3 was not holding a valid driving license and thereafter the respondent No.3 has not appeared to prove otherwise.
37. In view of the settled law the insurance company is liable qua third party though it shall be vested with the right to recover the amount of liability from the insured after depositing the compensation awarded to the third party. Since the respondents No.1 and 3 did not produce a valid driving license the respondent No.2 shall have the right to recover the amount of compensation from the respondent No.1 who is the owner of the offending vehicle and the insured. Accordingly the respondent No.2 shall deposit the amount of compensation and after depositing the same shall have the right to recover the same from the respondent No.1.
Suit no.20/14 Page 36 of 40 Rekha Mathur Vs. Parkashni RELIEF
38. The petitioner is awarded a sum of Rs.2,99,000/ (Rs.Two Lacs Ninety Nine Thousand only) along with interest @ 7.5% per annum in view of the decision in Rajesh and others v. Rajbir Singh and others, 2013 ACJ 1403, from the date of filing of the petition till its realization including, interim award, if any already passed against the respondents and in favour of the petitioner. The insurer/respondent No.2 shall deposit the award amount directly in the bank account of the petitioner claimant at UCO Bank, Patiala House Court, New Delhi within 30 days of the passing of the award failing which it is liable to pay interest at the rate of 12% per annum for the period of delay.
39. For safeguarding the compensation amount from being frittered away by the claimants, directions have been given by Hon'ble Supreme Court for preserving the award amount in the case of Jai Prakash Vs. National Insurance Co. Ltd. and Others (2010) 2 Supreme Court Cases 607. In view of the directions contained in the above judgment the award amount is to be disbursed as follows:
a) 40% of the share of the petitioner be released to her by transferring it into her savings account and remaining amount out of her share be kept in FDRs in UCO Bank, Patiala House Court, New Delhi in the following manner:Suit no.20/14 Page 37 of 40
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1. Fixed deposit in respect of 20% for a period of one year.
2. Fixed deposit in respect of 20% for a period of two years.
3. Fixed deposit in respect of 20% for a period of three years.
b)The respondent No.2 is directed to deposit the amount directly by way of crossed cheque in terms of the above order in UCO Bank, Patiala House Court, New Delhi in the name of UCO Bank, Patiala House Court, New Delhi A/c Rekha Mathur within 30 days of the passing of the award.
c) Cheque be deposited within thirty days herefrom under intimation to the petitioner. In case of default, the respondent No.2 shall be liable to pay further interest @ 12% per annum for the period of delay.
d) On the deposit of the award amount, the Branch Manager of UCO Bank, Patiala House Court, New Delhi is directed to prepare Fixed Deposit Receipts as ordered above and the balance amount be released to the petitioner.
e) The interest on the fixed deposits shall be paid monthly by automatic credit of interest in the saving accounts of the petitioner.
f) The withdrawal from the aforesaid account shall be permitted to the petitioner after due verification and the bank shall issue photo identity card to the petitioner to facilitate her identity.
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g) No cheque book shall be issued to the petitioner without the permission of the court.
h) The original fixed deposit receipts shall be retained by the bank in safe custody. However, the original pass book shall be given to the petitioner along with the photocopy of the fixed deposit receipts. Upon the expiry of period of FDR the bank shall automatically credit the maturity amount in the saving account of the beneficiary.
i) The original fixed deposit receipts shall be handed over to the petitioner on the expiry of the period of the fixed deposit receipts.
j) No loan, advance, or withdrawal shall be allowed on the said FDRs without the permission of the court.
k) On the request of the petitioner, the bank shall transfer the saving account to any other branch/bank, according to the convenience of the petitioner.
l) The petitioner shall furnish all the relevant documents for opening of the saving bank account and Fixed Deposit to Senior Manager of UCO Bank, Patiala House Court, New Delhi.
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40. The petitioner shall file two sets of photographs along with her specimen signatures, out of which one set to be sent to the Nodal Officer, UCO Bank, Patiala House Court, New Delhi along with copy of the award by Nazir and the second set be retained to the court for further reference. The photographs be stamped and sent to the bank. The petitioner shall also file the proof of residence and furnish the details of the bank account with the Nazir within a week. The petitioner shall file her complete address as well as address of her counsel for sending the notice of deposit of the award amount.
41. Nazir to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself. The respondent No.2 shall deposit the award amount along with interest upto the date of notice of deposit to the claimant with a copy to her counsel and the compliance report shall be filed in the court along with proof of deposit of award amount, the notice of deposit and the calculation of interest on 27.11.2014.
An attested copy of the award be given to the parties (free of cost) and a copy be also sent to the Nodal Officer, UCO Bank, Patiala House. File be consigned to Record Room.
Announced in open court
on this 26th day of August, 2014 (GEETANJLI GOEL)
PO: MACT2
New Delhi
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Rekha Mathur Vs. Parkashni