Delhi District Court
Rekha & Ors. vs . Soumi Chakraborty & Anr. on 3 May, 2018
IN THE COURT OF SH. M. K. NAGPAL
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS
TRIBUNAL PATIALA HOUSE COURTS, NEW DELHI
IN THE MATTER OF:
REKHA & Ors. VS. SOUMI CHAKRABORTY & ANR.
MACP NO. 581/16
1. Smt. Rekha (Wife)
W/o. Late Sh. Virender Kumar
2. Sh. Anmol Kumar (Son)
S/o. Late Sh. Virender Kumar
3. Master Apurv Kumar (Son)
S/o. Late Sh. Virender Kumar
P-3 being minor through his mother &
natural guardian P-1 Smt. Rekha
All Residents of :-
D-159, Gali No.6, Laxmi Nagar,
Delhi-110092.
......Petitioners
Versus
1. Sh. Soumi Chakraborty (Driver-cum-Owner)
W/o. Late Sh. Alok Chakraborty
R/o. K-13, Pkt.-K, 3rd Floor,
C.R. Park, New Delhi.
Also at:-
D-1, Anandeep, Barrack Pur,
24, Pargana, Kolkatta, West Bengal.
2. M/s. Bharti Axa General Ins. Co. Ltd. (Insurer)
Second Floor, Bigjos Tower,
A/8, Netaji Subhash Palce,
Pitampura, New Delhi-35.
.....Respondents
MACP No.581/16 1/22
Date of filing of DAR : 30.03.2016
Date of filing of petition : 29.04.2016
Date of framing of issues : 09.06.2016
Date of concluding arguments : 23.04.2018
Date of decision : 03.05.2018
AWARD/JUDGMENT
1. The claim for compensation of Rs.1,50,00,000/- raised by the petitioners in the present claim petition relates to death of one Sh.Virender Kumar, which was caused in an accident that took place on 09.12.2015 at around 8:40am at the crossing of Firoz Shah Road and K.G. Marg, New Delhi, regarding which one FIR No.285/2015, under Sections 279/304-A IPC was registered at PS Parliament Street. The offending vehicle involved in the said accident is one car of make Hyndai i10 Magna bearing registration no. DL-3CBR-5637, which at the relevant time of accident was being driven and owned by R-1 and insured with R-2.
2. Facts of case, briefly stated, are that the deceased was working as a Chef with the Constitution Club of India and on the above said date and time of accident, he was on way to his above office situated at Vithal Bhai House, Rafi Marg, New Delhi on his scooter bearing registration no. DL-7SAQ-5460, when the offending car driven by R-1 had struck against his scooter and it resulted into injuries on his person. He was removed to Dr. RML Hospital by R-1 herself with the help of one eye-witness Sh. Ashish Kumar/PW2, but he could not survive and succumbed to his injuries on the same day. It is alleged that the accident took place due to rash and negligent driving of the above car by R-1.
3. The DAR in respect of the above accident was filed before this tribunal on 30.03.2016 and this claim petition was also subsequently filed by the petitioners on 29.04.2016 and on the same MACP No.581/16 2/22 day, the DAR was directed to be clubbed with the petition for further proceedings.
4. R-1 in her reply has not disputed the above accident having being caused between her above car and scooter of the deceased and she has also not denied that she was owner as well as driver of the said car at the relevant time of accident. However, it is her case that the said accident did not take place due to her rash and negligent driving and rather it took place due to rash and negligent driving of the deceased himself. She has also submitted that the claim raised in the present petition is highly exaggerated and she was holding a valid driving licence (DL) at that time.
5. R-2/Insurance Co. in its WS has specifically admitted that the offending car on the date of accident was insured with them. However, it is their case that their liability to pay compensation is only as per the terms and conditions of the said policy. It is also submitted by them that they are not liable to pay compensation as DL of R-1 was found to be fake during investigation of the criminal case and she stands already chargesheeted, inter-alia, for the offences punishable under Sections 468/471 IPC on this count.
6. I have heard the arguments advanced by Sh.Pratap Singh, Ld. Counsel for the petitioners, Sh. Satish Tamta, Ld. Counsel for R-1 and Mohd. Mustaffa, Ld. Counsel for R-2 and have also carefully perused the entire material available on record. My issue- wise findings are as under:-
ISSUE NO. 1"Whether Sh. Virender Kumar sustained fatal injuries in the accident which occurred on 09.12.2015 at about 8:40 AM at Firoz Shah, K.G. Marg crossing red light, New Delhi caused by rash and negligent driving of vehicle No. DL- 3CBR-5637 driven and owned by respondent no.1 and insured with R-2? OPP"MACP No.581/16 3/22
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 and others (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:-
"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 the petitioners in support of their case have MACP No.581/16 4/22 examined on record a total number of three witnesses, including P-1 Smt. Rekha, i.e. widow of the deceased, as PW3, but it is the testimony of PW2 Sh. Ashish Kumar only which is relevant for determination of the alleged rashness and negligence on the part of R-1 in driving the offending car at the relevant time of accident as he alone is an eye-witness of the above accident. He has specifically stated on record that on the date of accident, he was working a Beldar with NDMC and was on his duty at Firozshah Road, K.G. Marg crossing at the time relevant time of accident and his duty hours were from 6:00 am to 2:00 noon. He has also specifically stated that he was standing on the said crossing for diversion of traffic as a huge crater was formed on the said road, when at around 8:00/9:00 pm he saw a lady coming from India Gate side in an i10 car being driven at a high speed and he also saw the deceased coming from Firozshah Road on his scooter. He further stated in clear and specific terms that it was green light for the deceased and the said lady after jumping the red light had hit the scooter of the deceased. He further stated that after some distance, lady stopped her vehicle and he alongwith the said lady then took the injured to Dr. RML Hospital. He also claims to have called the police at 100 number and recording of his statement by the police.
10. Though, an opportunity was duly given to the respondents to cross examine this witness, but the said opportunity was not availed of on behalf of R-1 and the above witness was cross examined only by Ld. Counsel for R-2. However, nothing material could have been extracted out from this witness during his said cross-examination and though, he was suggested by Ld. Counsel for R-2 that he was not an eye-witness of the accident or that he was a planted witness, but these suggestions were specifically denied by MACP No.581/16 5/22 the witness as wrong. Hence, there is no ground or reason on the part of this tribunal to disbelieve or discard the clear and specific depositions made by this witness with regard to the factum as well as manner of the above accident having been caused by R-1 while driving her above car rashly and negligently. Moreover, the presence of this witness at the relevant time of accident is not under doubts as according to record of the criminal case also, which has been filed as part of DAR by the IO and which has also been relied upon by the petitioners as Ex.PW3/19 (colly.), this witness was present on his duty at the place of accident at that time and he had also taken the deceased to hospital alongwith R-1. Even R-1 in her WS has specifically admitted to have taken the injured/deceased to hospital with the help of some NDMC staff.
11. Though, R-1 also examined herself on record as R1W1 and tendered on record her examination-in-chief by way of an affidavit Ex.R1W1/1 to substantiate her above defence and she also relied upon her mobile bill of the relevant month in respect of one PCR call as Ex.R1W1/A, some photographs of scene of accident as Ex.R1W1/B-1 to Ex.R1W1/B-4 and her WS as Ex.R1W1/C, but the same are not sufficient and cannot override the clear and consistent depositions made on record by PW2 Sh. Ashish Kumar, who is an independent eye-witness of the above accident and has no reason or ground to show any favours to the petitioners or disfavours to her. The judgment in the case of New India Assurance Co. Ltd. Vs. Harsh Mishra & Ors., 2015 (151) DRJ 664 being relied upon by Ld. Counsel for R-1 has no application to the facts and circumstances of the present case.
12. Apart from all, a copy of charge-sheet prepared by the IO against R-1 for offences punishable under Sections 279/304A/468/ MACP No.581/16 6/22 471 IPC in the above criminal case pertaining to the above accident has also been filed on record of this tribunal as a part of the DAR documents being relied upon by the petitioners as Ex.PW3/19 (Colly.) and this fact also substantiates the other oral and documentary evidence led on record by the petitioners to discharge the above onus. The death of deceased in the above accident has not been disputed and even otherwise, the same stands proved from the postmortem report of deceased being relied upon by the petitioners as a part of the DAR documents Ex.PW3/19 (Colly.).
13. 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 deceased Sh.Virender Kumar was caused due to rashness and negligence of R-1 in driving the above offending car bearing registration no. DL- 3CBR-5637, which was also owned by R-1 and insured with R-2. This issue is accordingly decided in favour of the petitioners and against the respondents.
14. ISSUE NO. 2"Whether the petitioners are entitled for compensation? If so, to what amount and from whom? OPP"
As the rashness and negligence on the part of driver of the above offending vehicle has been satisfactorily proved, the petitioners have become entitled to be compensated for the death of deceased in the above accident, but computation of compensation and liability to pay the same are still required to be decided. COMPENSATION MACP No.581/16 7/22 The compensation to which the petitioners are entitled shall be under the following heads:-
i) Loss of dependency As per the affidavit Ex.PW3/A filed by widow of the deceased, i.e. P-1 Smt. Rekha, her deceased husband was aged around 48 years at the time of accident. She is also found to have tendered on record, inter-alia, copies of the DL, election identity card and aadhar card of her deceased husband as Ex.PW3/10, Ex.PW3/11 and Ex.PW3/14 respectively. The age of deceased as on 01.01.2008 in the above election card is given as 41 years and accident in this case had taken place on 09.12.2015 and going by this document, the age of deceased at the time of accident comes to around 49 years. The date of birth of deceased as given in copy of his DL is 26.04.1966 and the year of birth mentioned in the copy of his aadhar card is 1966 and as per these documents also, the deceased was aged about 49 years at the time of accident. Hence, the above documentary and oral evidence led by the petitioners on record proves that the age of deceased was around 49 years at the time of accident 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 '13' is applicable for calculating the loss of dependency caused to the petitioners in respect of death of Sh.
Virender Kumar.
As stated above, the deceased was working as a Chef with the Constitution Club of India and as per the depositions made MACP No.581/16 8/22 by the petitioner/PW3, he was getting a monthly salary of Rs. 44,465/- at the time of his accident and it was subject to increase with the passage of time. She has also tendered on record and relied upon salary slips of the deceased for the two months immediately prior to the month of accident, i.e. the months of October and November, 2015, as Ex.PW1/3 and Ex.PW1/4 respectively. These salary slips have been duly proved on record by PW1 Sh.Rajesh Kumar, an employee of the said Club, who was duly authorized to depose in the case vide Authority Letter Ex.PW1/1 issued in his favour and he also filed on record a copy of his office identity card as Ex.PW1/2. As per these salary slips also, the gross salary of the deceased at the relevant time of accident was Rs.44,465/- per month, which consisted of the basic salary, grade pay, HRA, TA as well as DA etc. Though after deductions under the different heads, his net salary has been shown as Rs.38,530/- per month in these salary slips, it is observed that all the allowances being paid to the deceased under different heads are permanent in nature and thus, are held to be inherent constituents of his salary and no amount under any head is liable to be deducted or reduced from the calculations. Hence, the monthly salary of the deceased for the purposes of calculations of loss of his dependency is being taken as Rs.44,465/- and his annual salary comes to Rs.5,33,580/- (Rs.44,465/- X 12).
As per the income tax slab for the relevant financial year, i.e. 2015-16, there is Nil tax upto the income of Rs.2,50,000/-, 10% tax rate is applicable from Rs.2,50,001/- to Rs.5,00,000/- and 20% tax rate is applicable from Rs.5,00,001/- upto Rs.10,00,000/-. However, the deceased was entitled to invest or save an amount of Rs.1,50,000/- under different schemes or heads and even his MACP No.581/16 9/22 income tax return for the assessment year 2012-13 Mark A reflects that he used to take rebate under Section 80C to the extent of Rs.1,50,000/- and therefore, he is held entitled to the said rebate for an amount of Rs.1,50,000/- under Section 80C on this gross income. Hence, the taxable income of the deceased comes to Rs.3,83,580/-
(Rs.5,33,580/- - Rs.1,50,000/-) and income tax is to be calculated on this income only. It is also to be mentioned here that during the relevant financial year, rebate under Section 87A upto Rs 2,000/- is also to be allowed against tax liability because total income, after considering deductions of the deceased, was less than Rs 5,00,000/- and further 3% surcharge under the head of Education Cess and Higher Secondary Education Cess is liable to be charged. Hence, going by the prevalent rates of income tax at the relevant time, an amount of Rs.11,700/- (rounded off from Rs.11,699/-) is liable to be deducted from the gross income of the deceased as his tax liability and thus, the annual income of the deceased for the purposes of calculations of loss of dependency can be taken as Rs.5,21,880/- ( Rs.5,33,580/- - Rs.11,700/-).
All the petitioners claimed themselves to be financially dependents upon the deceased. As stated above, P-1 is the widow of deceased and P-2 and P-3 are their sons and P-3 was also a minor at the time of filing of petition as it has been filed on his behalf through his mother and natural guardian, i.e. P-1 Smt. Rekha. Though, P-2 was a major at the time of filing of the petition, but he was still financially dependent upon the deceased as has been specifically deposed by PW3/P-1 in her above affidavit tendered in evidence on 05.09.2016. She is also found to have stated that P-2 was in third year of BCA at that time. Hence, in view of the MACP No.581/16 10/22 propositions of law laid down in the above cases, 1/3rd of the earnings of deceased shall be deducted towards his personal and living expenses.
Since it is clear from the perusal of salary slips Ex.PW1/3 and Ex.PW1/4 of the deceased that nature of his job or employment as a Chef with the Constitution Club of India was permanent, in view of the law laid down in the case of Pranay Sethi & Ors. (Supra), the petitioners are also entitled to the addition of 30% of the above amount of his earnings towards future prospects since he was less than 50 years of age.
Thus the loss of dependency qua the deceased Sh.Virender Kumar in the present case comes to Rs.58,79,848/- (Rs.5,21,880/- X 130/100 X 2/3 X 13) and the said amount is being awarded under this head.
(ii) COMPENSATION UNDER NON-PECUNIARY HEADS 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 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 also held entitled to amounts of Rs. 15,000/-, Rs.40,000/- and Rs. 15,000/- respectively 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 MACP No.581/16 11/22 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.
15. 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 : 09.12.2015
2. Name of the deceased : Virender Kumar
3. Age of the deceased : Around 49 years
4. Occupation of the deceased : Chef
5. Income of the deceased : Rs.44,465/- per month
6. Name, age and relationship of legal representative of deceased:-
Srl. No. Name Age Relation
(i) Smt.Rekha 45 Widow
(ii) Sh. Anmol Kumar 22 Son
(iii) Master Apruv Kumar 15 Son
Computation of Compensation
Srl. No. Heads Amount Awarded
7. Income of the deceased (A) Rs. 43,490.00
after deducting tax
8. Add-Future Prospects (B) Rs. 13,3047.00
9. Less-Personal expenses of Rs. 18,845.70
the deceased (C)
10. Monthly loss of dependency Rs.37,691.40
[(A+B) - C = D]
11 Annual loss of dependency Rs.4,52,296/-
(D x 12) rounded off
12 Multiplier (E) 13
13 Total loss of dependency (D Rs.58,79,848.00
x 12 x E = F)
14 Medical Expenses (G) Nil
15 Compensation for loss of Nil
MACP No.581/16 12/22
love and affection (H)
16 Compensation for loss of Rs.40,000/-
consortium (I)
17 Compensation for loss of Rs.15,000/-
estate (J)
18 Compensation towards Rs.15,000/-
funeral expenses (K)
19 TOTAL COMPENSATION Rs.59,49,848/-
(F + G + H + I + J+K =L)
20 RATE OF INTEREST 9% pa from date of filing of
AWARDED DAR i.e. 30.03.2016, till
deposit within one months
and 12% thereafter.
21 Interest amount up to the date Rs.11,20,853.56
of award (M)
22 Total amount including interest Rs.70,70,701.56
(L+M) (rounded off to
Rs.70,71,000/-)
23 Award amount released P-1 = Rs.4,71,000/- with
interest till deposit.
P-2 = 2,00,000/-
P-3 = Nil
(See 'apportionment &
release' clauses in the
succeeding paragraphs)
24 Award amount kept in FDRs P-1 = Rs. 36,00,000/-
P-2 = Rs. 13,00,000/-
P-3 = Rs. 15,00,000/-
(See 'apportionment &
release' clauses in the
succeeding paragraphs)
25 Mode of disbursement of the Through bank
award amount to claimant(s)
26 Next date for compliance of the 12.07.2018
award
ISSUE NO.3/RELIEF
16. The petitioners are thus awarded a sum of
Rs.70,71,000/- (Rupees Seventy Lacs Seventy One Thousand only), including interest @ 9% per annum from the date of filing of MACP No.581/16 13/22 DAR, i.e. 30.03.2016, 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 granted vide order dated 09.06.2016 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 calculations of compensation.
17. APPORTIONMENT Out of the compensation amount, Rs. 40,71,000/- is being awarded to P-1/widow of the deceased and Rs.15,00,000/- each is being awarded to P-2 and P-3, i.e. sons of the deceased.
18. RELEASE Out of the compensation amount awarded to P-1, an amount of Rs.4,71,000/- (subject to deduction of the amount of interim award with interest), with upto date interest till deposit, is directed to be released to P-1 by transferring it into her savings account bearing No. 3663312992 being maintained at Central Bank of India, U 38 B School Block, Shakerpur, New Delhi, with IFSC Code: CBIN0284544 and remaining amount of Rs.36,00,000/- is directed to be kept in 180 FDRs of Rs.20,000/- each for a period of 1 to 180 months in succession with cumulative interest. The amount of FDRs on maturity would also be released in her above savings bank account.
Out of the compensation amount awarded to P-2, Rs.2,00,000/-, with upto date interest till deposit, is directed to be released to P-2 by transferring it into his savings account bearing No. 3519915599 being maintained at Central Bank of India, U 38 B School Block, Shakerpur, New Delhi, with IFSC Code: CBIN0284544 and remaining amount of Rs.13,00,000/- is directed to be kept in 65 FDRs of Rs.20,000/- each for a period of 1 to 65 months in MACP No.581/16 14/22 succession with cumulative interest. The amount of FDRs on maturity would also be released in his above savings bank account.
Entire share of P-3 shall also be kept in FDR for the period till he attains 21 years of age. However, the monthly interest thereon shall be released in the above bank account of his mother/P-1 in order to meet his educational and other expenses and amount of FDRs on maturity be released in savings account of P-3 bearing No. 3663503588 being maintained at Central Bank of India, U 38 B School Block, Shakerpur, New Delhi, with IFSC Code:
CBIN0284544.
The bank (s) shall not permit any joint name to be added in the above savings bank accounts or fixed deposit accounts of the claimants/petitioners i.e. the savings bank accounts of the claimants shall be individual savings bank account and not a joint account.
The original fixed deposits shall be retained by the UCO Bank, PHC, NDD in safe custody. However, the statement containing FDR numbers, FDR amounts, dates of maturity and maturity amounts shall be furnished by the bank to the claimants.
The maturity amounts of the FDRs be credited by Electronic Clearing System (ECS) in the above savings bank accounts of the claimants.
The monthly interest be credited by Electronic Clearing System (ECS) in the above savings bank account of P-1.
No loan, advance or withdrawal or pre-mature discharge be allowed on the fixed deposits without permission of the Court.
Petitioners have already produced before this tribunal their original passbooks with requisite endorsements of the Bank Manager concerned that no cheque book or ATM card shall be issued to their above said accounts and they also filed copy thereof MACP No.581/16 15/22 on record alongwith aadhar cards of all the petitioners and PAN cards of P-1 & P-2. It is directed that the concerned bank shall not to issue any cheque book and/or debit card to the claimant in future also.
19. LIABILITY In this case, DL of R-1 was found to be fake during investigation of the criminal case. It is the case of R-2/Insurance Co. that terms and conditions of insurance policy of the offending car issued in the name of R-1 have been violated in the present case as at the time of accident, she was driving the offending car without a valid and proper DL. To substantiate this fact, they have also examined on record Ms. Kalonia Shreshtha, Legal Executive of their company as R2W1 and this witness has tendered on record her examination-in-chief by way of an affidavit Ex. R2W1/A and further brought in evidence and relied upon certain documents, i.e. copy of the power of attorney in her favour as Ex.R2W1/1, attested copy of insurance policy of offending vehicle as Ex.R2W1/2, office copy of a notice under Order 12 Rule 8 CPC given to R-1 and its postal receipt as Ex.R2W1/3 and Ex.R2W1/4 respectively. Besides the above, she has also relied upon the DAR filed by the IO as Mark-A and the DL verification report filed by IO as a part of DAR as Mark-B. On the other hand, even R-1 has stepped into the witness box in her defence as R1W1 and has tendered on record her affidavit in examination-in-chief as Ex.R1W1/1. In the said affidavit, she has claimed that in the year 2003, she had joined a company namely M/s. Devyani Beverages, Noida and she was in sales and posted at Agra in the said year and she had acquired a DL from the Licencing Authority, Agra, while she was working there. She has also tendered on record her WS filed in this case as Ex.R1W1/C. MACP No.581/16 16/22 During her cross-examination on behalf of the petitioners, though she admitted that she was arrested in the criminal case pertaining to the above accident and she never made any complaint to the police regarding her false implication, but she also stated that she did not receive any summons or notice for trial in the said criminal case till date. During her cross-examination on behalf of R-2, she further stated that her native place was in District North 24, PGS, Kolkata and she had furnished a rent agreement before the Licencing Authority for issuance of above DL at Agra and it was applied through some agent and she even visited the office of transport authority concerned.
On the basis of above, it is an argument advanced by Ld. Counsel for R-1 that there was no wilful breach of the terms and conditions of the insurance policy on the part of R-1 as she was never aware about the fact that the said licence was not genuine and she had been using it since the date of its issuance as a genuine licence. It is also argued that R-2 failed to lead any satisfactory evidence on record to show that the said licence was fake. Judgments in the cases of National Insurance Co. Ltd. Vs. Swaran Singh & Anr. (2004) 3 SCC 297 and in MACA No.198/2011 titled National Insurance co. Ltd. Vs. Rishi Pratap Singh & Ors. decided on 21.11.2012 have also been relied upon on this aspect.
However, it is a matter of record that apart from the offences under Sections 279/304A IPC for causing death of the deceased Sh. Virender Kumar by her rash and negligent driving, R-1 was also charge-sheeted for commission of the offences punishable under Sections 468/471 IPC for forgery and use etc. of a fake DL. It was so because in the verification report obtained by the IO of criminal case, which has been filed on record as a part of charge-
MACP No.581/16 17/22sheet of the above criminal case enclosed with the DAR, it was reported by the concerned transport authority at Agra that DL bearing no. 652/P2003 being claimed to be of R-1 was infact not issued in the name of said respondent and rather it was issued in the name of one Sh. Mustaffa, S/o. Sh. Ahmad, R/o. Air Force Station, Agra, on 05.04.2003 for driving motorcycle + LMV (Pvt.) category of vehicles and it was valid till 24.06.2013 only. In the copy of DL in name of R-1 bearing the same number, which was seized by the IO during investigation of the case, the date of validity of said DL was shown till 04.04.2023. Though, it is the contention of Ld. Counsel for R-1 that R-2 has neither got proved the above verification report nor got summoned the record from the concerned transport authority to prove the fact that the above DL of R-1 was fake, but in considered opinion of this tribunal even if the said record has not been summoned, this tribunal cannot close its eyes to the above verification report submitted by the IO as a part of DAR documents itself as different standards of proof cannot be applied for the parties in this inquiry, where facts are required to be proved only by preponderance of probabilities and not by strict rules of evidence.
As stated above, a copy of charge-sheet prepared by the IO in the above criminal case, inter-alia, for offences punishable under Sections 486/471 IPC in respect of the above fake DL being possessed and used as genuine by R-1 is a part of the record and the record also consists of the above verification report obtained by the IO from the concerned transport authority regarding the said DL being fake. Hence, the onus stood shifted upon R-1 to prove the genuineness of her above licence, but no steps were taken by her to summon any record or other document to prove the genuineness of her above DL. Even otherwise, the said verification report furnished MACP No.581/16 18/22 by the concerned transport authority and obtained by the IO is required to be admitted in evidence and to be held as proved without any formal proof of the contents thereof, in terms of the provisions contained under Rule 7 of the Delhi MACT Rules, 2008. The judgments being relied upon by the Ld. Counsel for R-1 can be distinguished. Moreover, the above act of driving of the offending car by R-1 with a fake licence shall constitute a wilful breach of the terms and conditions of the insurance policy of the said vehicle.
Hence, R-2 is held entitled to recovery rights of the awarded amount of compensation from R-1 in terms of the provisions contained in Section 149 (2) (ii) of the MV Act. However, R-2 is first liable to deposit the awarded amount in compliance of the present award and therefore, R-2 is directed to deposit the above award amount with UCO Bank, Patiala House Court Branch, alongwith interest @ 9% per annum, by way of crossed cheque/DD 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- 2 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-2 shall inform the claimants and their counsel through registered post that the cheque of the awarded amount is being deposited so as to facilitate them to collect their cheques.
20. 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 MACP No.581/16 19/22 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.
21. 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.
22. 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 09.12.2015
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.
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 30.03.2016 Tribunal.
6. Date of service of DAR on Insurance 30.03.2016 Company
7. Date of service of DAR on 30.03.2016 claimant(s).
8. Whether DAR was complete in all Yes respects?
9. If not, state deficiencies in the DAR .........
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 No Investigating Officer? If so, whether any action/direction warranted?
12. Date of appointment of the Designated Officer by the Insurance Not given Company.
13. Name, address and contact number of the Designated Officer of Not given Insurance Co.
14. Whether the Designated Officer of the No Insurance Company submitted his MACP No.581/16 20/22 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 not filed Insurance Company fairly computed 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 filed the offer of the Insurance Company.
18. Date of the award 03.05.2018
19. Whether the award was passed with No the consent of the parties?
20. Whether the claimant(s) were directed to open savings bank Yes 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 05.02.2018 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 13.03.2018 savings bank account near the place of their residence alongwith endorsement, PAN & Adhaar Cards?
23. Permanent Residential Address of the R/o. D-159, Gali No.6, Laxmi Claimant(s) Nagar, Delhi-110092.
24. Details of savings bank account (s) of P-1 = 3663312992 the claimant(s) and the address of the P-2 = 3519915599 bank with IFSC Code. P-3 = 3663503588 (all being maintained at Central Bank of India, U 38 B School Block, Shakerpur, New Delhi-92, with IFSC Code: CBIN0284544)
25. Whether the claimant(s) savings bank account(s) is near his place of Yes residence?
26. Whether the claimant(s) were Yes examined at the time of passing of MACP No.581/16 21/22 the award to ascertain his/their financial condition?
23. File be consigned to Records after necessary formalities. Separate file be prepared for compliance report and be put up on 12.07.2018.
Announced in the open court. (M.K.Nagpal)
on 03.05.2018 PO/MACT, New Delhi
MACP No.581/16 22/22