Delhi District Court
Sh. Amar Singh (Father) vs Sh. Sh. Dinesh Pal Singh (Driver) on 30 January, 2014
IN THE COURT OF SH. ARUN BHARDWAJ
PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS TRIBUNALII,
DWARKA COURTS: NEW DELHI
MACT No. 272/12 & 287/12
IN THE MATTER OF :
(i) MACT No. 272/12
1. Sh. Amar Singh (Father)
S/o late Sh. Rustam Singh
2. Smt. Rani Devi (Mother)
W/o Sh. Amar Singh
R/o H.No. 454, Village Matka Poorva,
Street/Mohalla Khair Nagar, Tehsil Tirwa,
Thana Thathia, Distt. Kannauj, U.P.
Also residing as tenant at C/o Ramjas Yadav,
R/o H.No. D530, Mahavir EnclaveIII,
Dabri, New Delhi
... Claimants
Versus
1. Sh. Sh. Dinesh Pal Singh (Driver)
S/o Sh. Mahendra Pal Singh,
R/o Village Baharpur Patti,
Thana Bahjoi, Teh. Chandausi,
Zila Moradabad.
2. Sh. Surender Singh Yadav (Owner)
S/o Sh. Om Prakash,
R/o RZ10/1, Raj Nagar,
PartI, Palam Colony, New Delhi110045.
MACT No. 272/12 Sh. Amar Singh & Anr. v. Sh. Dinesh Pal Singh & Ors. Page 1 of 20
MACT No. 287/12 Smt. Tulsi Roy & Ors. v. Sh. Dinesh Pal Singh & Ors. Page 1 of 20
3. Shri Ram Gen. Ins. Co. Ltd. (Insurer)
1010261001 Ground Floor,
Arya Samaj Road, Nai wala,
Karol Bagh, New Delhi110005.
... Respondents
FILED ON : 15.03.2012
RESERVED ON : 27.01.2014
DECIDED ON : 30.01.2014
(ii) MACT No. 287/12
1. Smt. Tulsi Roy (Widow) (Age 22 yrs.)
W/o late Sh. Alok Roy
2. Master Anshu Roy (Son) (Age 01 yr.)
S/o late Sh. Alok Roy
(Petitioner No. 2 being minor, is represented through her mother Smt. Tulsi Roy /Petitioner No.1/Natural Guardian)
3. Smt. Bhagawati Ray (Mother) (Age 65 yrs.) W/o Sh. Dev Kumar Ray @ Dev Kumar Ray Mahapatra
4. Sh. Dev Kumar Roy Mahapatra (Father) (Age 68 yrs.) All R/o H.No. 310, Vill. & P.O. Gaduli, Gurgaon, Haryana.
Also at: Village Puran, P.O. Gadharipur, Belda, Distt. Midnapur, West Bengal.
.... Claimants MACT No. 272/12 Sh. Amar Singh & Anr. v. Sh. Dinesh Pal Singh & Ors. Page 2 of 20 MACT No. 287/12 Smt. Tulsi Roy & Ors. v. Sh. Dinesh Pal Singh & Ors. Page 2 of 20 Versus
1. Sh. Sh. Dinesh Pal Singh (Driver) S/o Sh. Mahendra Pal Singh, R/o Village Baharpur Patti, Thana Bahjoi, Teh. Chandausi, Zila Moradabad.
2. Sh. Surender Singh Yadav (Owner) S/o Sh. Om Prakash, R/o RZ10/1, Raj Nagar, PartI, Palam Colony, New Delhi110045.
3. Shri Ram Gen. Ins. Co. Ltd. (Insurer) 1010261001 Ground Floor, Arya Samaj Road, Nai wala, Karol Bagh, New Delhi110005.
... Respondents
FILED ON : 02.04.2012
RESERVED ON : 27.01.2014
DECIDED ON : 30.01.2014
: J U D G M E N T :
1. These two claim petitions are filed under Section 166 and 140 of the Motor Vehicles Act, 1988 for grant of compensation.
2. Respondent No. 1 the driver, Respondent No. 2 the owner and Respondent No. 3 the insurer of the offending vehicle MACT No. 272/12 Sh. Amar Singh & Anr. v. Sh. Dinesh Pal Singh & Ors. Page 3 of 20 MACT No. 287/12 Smt. Tulsi Roy & Ors. v. Sh. Dinesh Pal Singh & Ors. Page 3 of 20 in both the claim petitions are same.
3. In both the claim petitions, the two deceased had suffered fatal injuries in a road traffic accident dated 16.09.10 resulting in registration of FIR No. 219/10 at P.S. Sector10 Gurgaon, Haryana under Section 279, 337, 304 A of IPC.
4. Offending vehicle in both the claim petitions is same i.e. Bus bearing No. DL1PB7456. Therefore, both these claim petitions were clubbed and are now being disposed of vide a common award.
5. First, facts as are stated in the case of Tulsi Roy & Anr. v. Dinesh Pal Singh where statement of eye witness is recorded are taken up for consideration.
6. Claimants in this claim petition are the widow, minor son and parents of the deceased Sh. Alok Roy who at the time of accident was 23 years old and was doing a private job with M/s. M.R. Stitchwell and earning Rs. 10,000/ per month.
7. Claimants have stated that on 16.09.10, Sh. Alok Roy (hereinafter referred as the deceased) alongwith other passengers was going to Gurgaon by offending vehicle bearing no. DL1PB7456. The driver of the bus was driving the bus rashly and negligently. He ignored objections of the passengers traveling in the bus to drive carefully. At about 9.45 p.m., when they reached near Village Gaduli Khurd, Gurgaon, Haryana the driver of the bus lost control and hit a Scorpio Car bearing no. HR26AU8686 with a great force. As a result of this, the offending bus overturned. The deceased and others came under the bus and sustained fatal/grievous injuries. The deceased was MACT No. 272/12 Sh. Amar Singh & Anr. v. Sh. Dinesh Pal Singh & Ors. Page 4 of 20 MACT No. 287/12 Smt. Tulsi Roy & Ors. v. Sh. Dinesh Pal Singh & Ors. Page 4 of 20 removed to General Hospital, Gurgaon but the doctors on duty declared him as 'brought dead'.
8. Claimants have stated that they had spent Rs. 50,000/ on last rites of the deceased and have claimed a compensation of Rs. 50 lacs with interest @ 18% p.a. from the date of accident till its realization.
9. Respondent No. 1 and 2 were duly served but did not file any reply and their right to file reply was closed.
10. Only insurance company filed its reply taking an objection that the manner in which the alleged accident is stated to have occurred is absolutely wrong and concocted. The accident was due to negligence of the driver of Scorpio. The driver of Respondent No. 1 was not holding a valid and effective driving license at the time of accident which is a willful and intentional breach on the part of Respondent No. 2. Therefore, insurance company denied liability to pay the compensation to the claimants.
11. It is also stated that if the offending vehicle was being plied without a valid and effective permit, fitness and Registration Certificate, the answering respondent shall not be liable to pay the compensation.
12. It is also stated that in case any new fact comes in the knowledge of the answering respondent, it be given liberty to amend its written statement.
13. Rest of the averments made in the claim petition were denied. Only insurance of the offending vehicle on the date of accident was admitted.
MACT No. 272/12 Sh. Amar Singh & Anr. v. Sh. Dinesh Pal Singh & Ors. Page 5 of 20 MACT No. 287/12 Smt. Tulsi Roy & Ors. v. Sh. Dinesh Pal Singh & Ors. Page 5 of 2014. Therefore, to decide the compensation payable to the claimants, following issues were framed in MACT No. 287/12:
(i) Whether Sh. Alok Roy S/o Sh. Dev Kumar Roy sustained fatal injuries in a motor vehicle accident dt. 16.9.10 due to rash or negligent driving of vehicle bearing No. DL1PB7456 by R1? ... OPP
(ii) Whether the petitioners are entitled to claim compensation if so, what amount and from whom? ... OPP
(iii) Relief.
15. Widow of the deceased entered in the witness box as PW1 and stated similar facts in her evidence by way of affidavit as were already stated by her in her claim petition. During her examination in chief, she proved death certificate, PAN Card, driving license of the deceased as Ex. PW1/23 respectively, her Voter Card as Ex. PW1/4, her educational qualification certificate and her bonafide resident certificate as Ex. PW1/56 and birth certificate of her child as Ex. PW1/7.
16. She was briefly cross examined on behalf of insurance company and nothing worth noticing came on the record in that cross examination.
17. Claimants also examined an eye witness Sh. Deepak Roy as PW2. He stated that he is an eye witness to the accident and is the real brother of the deceased. He deposed that on the date of accident i.e. 16.09.10, he alongwith the deceased and other passengers was coming to Gurgaon by offending vehicle MACT No. 272/12 Sh. Amar Singh & Anr. v. Sh. Dinesh Pal Singh & Ors. Page 6 of 20 MACT No. 287/12 Smt. Tulsi Roy & Ors. v. Sh. Dinesh Pal Singh & Ors. Page 6 of 20 bearing No. DL1PB7456; the said bus was being driven in a rash and negligent manner inspite of objections of passengers traveling in that bus; at around 9.45 p.m, near Village Gaduli Khurd, Gurgaon, Haryana the driver of the bus lost control and hit a Scorpio Car. As a result of this, the bus overturned resulting in fatal injuries to the deceased.
18. This witness was not cross examined by Respondent No. 1 and 2. He was cross examined by counsel for insurance company but no suggestion was given to this witness that the accident was not due to negligence of Respondent No. 1 or it was due to negligence of driver of Scorpio Car or he is not an eye witness to the accident.
19. No other witness was examined on behalf of these claimants.
20. On behalf of insurance company, evidence of Sh. Nitish Chauhan, Legal Officer of Shri Ram General Insurance Co. Ltd. was recorded in another claim petition i.e. MACT No. 272/12. The testimony of the said witness shall be discussed while dealing with the facts of the other claim petition of Sh. Amar Singh & Ors. v. Dinesh Pal Singh & Ors.
21. Now, the facts in the case of Amar Singh & Ors. v. Dinesh Pal Singh & Ors., which is MACT No. 272/12 are being taken up for consideration.
22. In this case, the deceased Sh. Sandeep Kumar was stated to be 23 years old employed with M/s. M.R. Stitchwell at a salary of Rs. 10,000/ per month. He was also traveling in the same bus in which the other deceased Sh. Alok Roy was traveling MACT No. 272/12 Sh. Amar Singh & Anr. v. Sh. Dinesh Pal Singh & Ors. Page 7 of 20 MACT No. 287/12 Smt. Tulsi Roy & Ors. v. Sh. Dinesh Pal Singh & Ors. Page 7 of 20 at the time of accident.
23. In this case, the claimants are only his parents.
24. It appears that the deceased was a bachelor.
25. Claimants have claimed a compensation of Rs. 20 lacs with interest @ 18% p.a. from the date of accident till its realization.
26. In this case also, Respondent No. 1 and 2 had not filed any reply and their right to file written statement was closed.
27. The defence of insurance company in its written statement is similar to the one taken in the case of Tulsi Roy & Ors.
28. From the pleadings of parties, following issues were framed in MACT No. 272/12 are as under:
(i) Whether Sh. Sandeep S/o Sh. Amar Singh sustained fatal injuries in a motor vehicle accident dt. 16.9.10 due to rash or negligent driving of vehicle bearing No. DL1PB7456 by R1? ... OPP
(ii) Whether the petitioners are entitled to claim compensation if so, what amount and from whom? ... OPP
(iii) Relief.
29. In this case, claimants first examined a witness from the office of employer of the deceased. PW1 proved Muster Roll for the months of June, July, August and September, 2010 of M/s. M.R. Stitchwell as Ex. PW1/1 and salary register for the month of June, July, August and September, 2010 as Ex. PW1/2.
MACT No. 272/12 Sh. Amar Singh & Anr. v. Sh. Dinesh Pal Singh & Ors. Page 8 of 20 MACT No. 287/12 Smt. Tulsi Roy & Ors. v. Sh. Dinesh Pal Singh & Ors. Page 8 of 2030. In examination in chief, PW1 he deposed that deceased was working as a tailor in their company at a basic salary of Rs. 4,604/ per month and he was also given Rs. 300/ per month for HRA. Therefore, his gross salary was Rs. 4,904/ per month; the deceased was a permanent employee; they are doing work of contract labour and he was engaged on yearly contract basis; if the company had got business after one year, they might have engaged the deceased on contract basis; yearly promotion is given on the basis of performance of any employee in their company.
31. Father of the deceased entered in the witness box as PW2 and proved his Voter Card as Ex. PW2/1, Voter Card of mother of the deceased as Ex. PW2/2, Ration Card as Ex. PW2/3, Intermediate Examination, 2006 Certificate of the deceased as Ex. PW2/4, High School Examination, 2004 Certificate of the deceased as Ex. PW2/5, mark sheet of High School Examination as Ex. PW2/6, mark sheet of B.A. PartI of Chatrapati Shahuji Maharaj University, Kanpur as Ex. PW2/7 and mark sheet of Part II Examination of same University as Ex. PW2/8.
32. In cross examination, he deposed that he is an agriculturalist; he has another son aged 17 years who is a student and he is not an eye witness to the accident.
33. PW3 examined by the claimants Ct. Dalvinder Singh from P.S. Sector8, Gurgaon, Haryana produced copy of FIR which was exhibited as Ex. PW3/1. He deposed that after completion of investigation, charge sheet is filed before the concerned court but he does not know whether the case is still MACT No. 272/12 Sh. Amar Singh & Anr. v. Sh. Dinesh Pal Singh & Ors. Page 9 of 20 MACT No. 287/12 Smt. Tulsi Roy & Ors. v. Sh. Dinesh Pal Singh & Ors. Page 9 of 20 pending or not.
34. PW4 examined by the claimants was Sh. Kulbhushan Yadav, Record Keeper of General Hospital, Gurgaon, Haryana who produced request letter of Investigating Officer for post mortem on the body of Sh. Sandeep as well as Sh. Alok Roy. He also produced their post mortem reports which were proved as Ex. PW4/1 (collectively).
35. On behalf of insurance company, its Legal Officer Sh. Nitesh Chauhan entered in the witness box as R3W1 and proved authority letter in his favour as Ex. R3W1/1, notice under Order 12 Rule 8 of CPC sent to the owner to produce permit as Ex. R3W1/2 and the postal receipts as per which this notice was sent as Ex. R3W1/3. He deposed that since the owner has not given any permit, insurance company be exonerated.
36. No other witness was examined by any other party in these two claim petitions.
37. On the basis of pleadings of parties, evidence on record and arguments addressed, issue wise findings are as under: ISSUE NO. 1:
38. Burden of proving this issue is on the claimants.
39. For succeeding in a claim petition filed under Section 166 of the Motor Vehicles Act, it is for the claimants to prove that the vehicle which caused the accident was being driven rashly and negligently by its driver.
40. This is sine qua non for getting the relief.
41. In the case of Smt. Tulsi Roy & Ors., the claimants MACT No. 272/12 Sh. Amar Singh & Anr. v. Sh. Dinesh Pal Singh & Ors. Page 10 of 20 MACT No. 287/12 Smt. Tulsi Roy & Ors. v. Sh. Dinesh Pal Singh & Ors. Page 10 of 20 have examined an eye witness as PW2. This eye witness has stated in his evidence by way of affidavit that on the date of accident, the driver of the offending bus was driving the same in a rash and negligent manner inspite of objections by the traveling passengers. The offending vehicle had hit a Scorpio and thereafter it overturned resulting in fatal injuries to the deceased.
42. Respondent No. 1 and 2 were duly served but did not file any reply meaning thereby the allegations of rash and negligent driving made against the driver have remained unrebutted and unchallenged.
43. When the eye witness came in the witness box no suggestion was given to him that the accident was not due to negligence of Respondent No. 1 or it was due to negligence of driver of Scorpio with which it had collided.
44. Moreover, in the case of Sh. Amar Singh & Anr., the claimants have filed a copy of order dated 03.04.12 passed by Ld. JMIC/Gurgaon as per which charge was framed against Respondent No. 1 for driving the offending vehicle No. DL1PB7456 in a rash and negligent manner.
45. In the light of evidence of eye witness PW2 as well as in the light of the fact that proceedings were initiated against Respondent No. 1 for driving the vehicle in a rash and negligent manner before the Ld. Magistrate, Gurgaon, for the purposes of this inquiry, it is sufficient to return a finding that the accident was due to negligence of Respondent No. 1. ISSUE NO. 2: MACT No. 272/12 Sh. Amar Singh & Anr. v. Sh. Dinesh Pal Singh & Ors. Page 11 of 20 MACT No. 287/12 Smt. Tulsi Roy & Ors. v. Sh. Dinesh Pal Singh & Ors. Page 11 of 20
46. First, compensation payable to claimants in Smt. Tulsi Roy & Ors. v. Sh. Dinesh Pal Singh which is MACT No. 287/12 is being taken up for consideration.
47. These claimants have stated that the deceased was employed with M/s. M.R. Stitchwell at a salary of Rs. 10,000/ per month. However, in the absence of evidence of employer and in the absence of proof of educational qualifications of the deceased, reliance is placed on minimum wages payable to an unskilled workman which on the date of accident i.e. 16.09.10 were Rs. 5,278/ per month.
48. The deceased has left behind four claimants. Therefore, 1/4th deduction is to be made for personal expenses of the deceased.
49. After deducting 1/4th for personal expenses, loss for the family will be Rs. 3,958.50 per month.
50. The deceased was less than 40 years of age. It is evident from his driving license Ex. PW1/3. As per this license, his date of birth was 19.09.1987.
51. Therefore, claimants are also entitled to compensation to an extent of 50% towards loss of future prospects. For this, reliance can be placed on ICICI Lombard General Insurance Co. Ltd. v. Angrez Singh & Ors., MAC APP. No. 846/11 dated 30.09.11 Thus calculated, financial loss for the family on the death of the deceased would be Rs. 5,937.75 per month or Rs. 71,253/ p.a.
52. Since the deceased was 23 years of age, multiplier of 18 will apply and compensation for Loss of Dependency would MACT No. 272/12 Sh. Amar Singh & Anr. v. Sh. Dinesh Pal Singh & Ors. Page 12 of 20 MACT No. 287/12 Smt. Tulsi Roy & Ors. v. Sh. Dinesh Pal Singh & Ors. Page 12 of 20 be Rs. 12,82,554/ i.e. Rs. 71,253/ x 18.
53. Following Rajesh & Others Vs. Rajbir Singh & Others, 2013(6) SCALE 563, the widow of the deceased is awarded a compensation of Rs. 1,00,000/ towards Loss of Consortium.
54. The deceased has left behind a minor child. Therefore, he is also awarded a compensation of Rs. 1,00,000/ towards Loss of Love, Care and Guidance.
55. Claimants are also awarded Rs. 25,000/ towards Cremation Charges and Rs. 10,000/ for Loss of Estate.
56. Hence, total compensation payable to the claimants would be Rs. 15,17,554/ which shall be payable with interest @ 7.5% per annum from the date of filing of this claim petition which is 02.04.2012 till its realization.
57. Interim compensation, if paid earlier, shall be deducted from the compensation now awarded in favour of claimants.
58. Next, compensation payable in the case of Sh. Amar Singh & Ors. v. Sh. Dinesh Pal Singh which is MACT No. 272/12 is taken up for consideration.
59. In this case, the claimants have examined a witness from the office of employer of the deceased. This witness PW1 has stated that the deceased was in permanent employment and his gross income was Rs. 4,907/ per month. The deceased had passed 2nd year of graduation. On the date of accident, minimum wages of a matriculate were Rs. 6,448/ per month.
60. However, in view of evidence of employer, income of MACT No. 272/12 Sh. Amar Singh & Anr. v. Sh. Dinesh Pal Singh & Ors. Page 13 of 20 MACT No. 287/12 Smt. Tulsi Roy & Ors. v. Sh. Dinesh Pal Singh & Ors. Page 13 of 20 the deceased will be treated only as Rs. 4,907/ per month. As the deceased was a bachelor, 50% shall be deducted for his personal expenses and loss for the claimants will be Rs. 2,454/ per month.
61. Since the deceased was in a permanent employment, claimants are also entitled to compensation for loss of future prospects also. Once 50% is added to Rs. 2,452/, the loss for the family will be Rs. 3,678/ per month or Rs. 44,136/ p.a. and applying a multiplier of 18, total Financial Loss for the family will be Rs. 7,94,448/.
62. Additionally, claimants are awarded a compensation of Rs. 25,000/ for Loss of Love and Affection and Rs. 25,000/ towards Cremation Charges and Rs. 10,000/ for Loss of Estate.
63. Hence, total compensation payable to the claimants would be Rs. 8,54,448/ which shall be payable with interest @ 7.5% per annum from the date of filing of this claim petition which is 15.03.2012 till its realization.
64. Interim compensation if paid earlier shall be deducted from the compensation awarded in favour of claimants now.
65. Next question is which of the respondents is liable to pay this compensation to the claimants?
66. The evidence of insurance company for exoneration/recovery rights is that it had sent a notice under Order 12 Rule 8 of CPC to the owner to produce the permit but no permit was given.
67. In the written statement, insurance company has not MACT No. 272/12 Sh. Amar Singh & Anr. v. Sh. Dinesh Pal Singh & Ors. Page 14 of 20 MACT No. 287/12 Smt. Tulsi Roy & Ors. v. Sh. Dinesh Pal Singh & Ors. Page 14 of 20 taken a definite defence that the vehicle had no permit. The defence is only that if the vehicle was being plied without permit, then insurance company will have no liability. Such a pleading is not a pleading of a defence that there was no permit at the time of accident (See Oriental Insurance Co. Ltd. v. B.S. Bhargava, a judgment of Hon'ble High Court of Delhi in MAC APP. No. 127/10 dated 14.08.12).
68. Even after serving a notice upon insured to produce permit, when permit was not produced, written statement was not amended to raise a defence of no permit.
69. As per Order 12 Rule 8 of CPC, an affidavit of the pleader or his clerk of the service of any notice to produce and of the time when it was served with a copy of the notice to produce should have been filed on record. Only then it would have been treated as a sufficient evidence of the service of the notice and of the time when it was served. However, such affidavit is not filed by the insurance company.
70. Furthermore, as held in the case of Bajaj Allianze General Insurance Co. Ltd. v. Bhikhari Yadav, MAC APP. No. 727/11, dated 03.01.12 the defence of absence of any permit is to be proved by the Insurance Company by summoning a witness from the Registration Authority. The Hon'ble High Court with regard to permit has held as under: "Turning to the second limb of argument i.e. issuance of permit to ply vehicle no. DL1G2715 on the date of the accident, the appellant insurance company did not summon any record from the relevant office of the Delhi Transport MACT No. 272/12 Sh. Amar Singh & Anr. v. Sh. Dinesh Pal Singh & Ors. Page 15 of 20 MACT No. 287/12 Smt. Tulsi Roy & Ors. v. Sh. Dinesh Pal Singh & Ors. Page 15 of 20 Authority to show that on the date of the accident, the vehicle did not have any permit to ply on the road. Here again, the insurance company failed to discharge the onus that there was breach of the condition of policy in this regard".
In the case of Kamala Mangalal Vayani v. NIA Co. :
2010 (12) SCC 99; it is held as under: "The claimants are not expected to prove that the vehicle had a valid permit, nor prove that the owner of the vehicle did not commit breach of any of the terms of the policy. It is for the insurer who derives its liability under the policy, to establish that inspite of the comprehensive policy issued by it, it is not liable on account of the requirements of the policy not being fulfilled. It was open to the insurer to apply to the concerned Transport Authority for a certificate to show the date on which the permit was granted and that as on the date of the accident, the vehicle did not have a permit, and produce the same as evidence. It failed to do so. The High Court committed an error in expecting the claimants to prove that the vehicle possessed a valid permit."
71. Moreover, after the evidence of insurance company was recorded, counsel for claimants in Claim Petition of Sh. Amar Singh & Anr. filed on record copies of documents taken from the Court of Ld. CJM, Gurgaon.
72. This includes a copy of permit also.
73. Once this permit issued by the Assistant Secretary State Transport Authority, Delhi was available, the insurance company was at liberty to summon any witness from the Transport Authority to see validity of the permit.
74. Note No. 3 of the Permit reads that this permit is not MACT No. 272/12 Sh. Amar Singh & Anr. v. Sh. Dinesh Pal Singh & Ors. Page 16 of 20 MACT No. 287/12 Smt. Tulsi Roy & Ors. v. Sh. Dinesh Pal Singh & Ors. Page 16 of 20 valid for journeys terminating within the satellite cities i.e. Faridabad, Ballabhgarh, Gurgaon, Noida Part I and II, Ghaziabad, Sahibabad, Bahadurgarh and Sonepat.
75. There is no evidence that the journey of the offending would have terminated at Gurgaon.
76. Therefore, looking from any angle, the insurance company has not succeeded in proving any defence.
77. Therefore, compensation shall be payable by the insurance company.
78. Let the compensation be deposited by the insurance company within 30 days from today under intimation to the claimants as well as to their counsel by registered post.
79. In case even after passing of 90 days, the insurance company fails to deposit this compensation, it shall be recovered by attaching its bank account with a cost of Rs. 5,000/ as per directions of the Hon'ble High Court of Delhi in the case of New India Assurance Co. Ltd. v. Kashmere Lal & Ors., 2007 ACJ 688.
80. Financial needs of the claimants were noted. Smt. Tulsi Devi had stated that entire compensation be released in her favour immediately to enable her to purchase a house. But she did not tell which property and at what cost she is desirous of purchasing the house. Therefore, in absence of any such facts on record, her entire compensation cannot be released immediately. However, she is at liberty to approach this Tribunal for release of compensation from FDR in her favour as and when there is a specific plan by her to purchase any property. In view of this, following directions are passed in the case of Smt. Tulsi MACT No. 272/12 Sh. Amar Singh & Anr. v. Sh. Dinesh Pal Singh & Ors. Page 17 of 20 MACT No. 287/12 Smt. Tulsi Roy & Ors. v. Sh. Dinesh Pal Singh & Ors. Page 17 of 20 Roy & Ors. (MACT No. 287/12): (1) 30% out of the total compensation awarded, with proportionate interest shall be payable in favour of Claimant No. 1, Widow of the deceased. This amount shall be deposited by the insurance company in the name of Smt. Tulsi Roy in SBI, Dwarka Courts, New Delhi. 10% thereof shall be released in her favour immediately and rest will be kept in 10 FDRs of equal amount for a period from 1 to 10 years with a provision for payment of monthly interest in her account.
(2) 40% out of the total awarded compensation with proportionate interest shall be payable in favour of Claimant No. 2, minor son of the deceased. This payment shall be deposited by insurance company in the name of Master Anshu Roy in SBI, Dwarka Courts, New Delhi. This compensation will be kept in an FDR till the time Claimant No. 2 attains age of 21 years. Monthly interest will be credited in the Saving Bank Account of Claimant No. 1 so that she can use it for the maintenance of Claimant No. 2.
(3) 20% out of the total awarded compensation with proportionate interest shall be payable in favour of Claimant No. 3, mother of the deceased. This payment shall be deposited by insurance company in the name of Smt. Bhagwati Roy in SBI, Dwarka Courts, New Delhi. This compensation will be kept in 3 FDRs of equal amount for a period of 1 to 3 years. Monthly interest will be credited in the Saving Bank Account of Claimant No. 3 regularly.
(4) 10% out of the total awarded compensation with proportionate interest shall be payable in favour of Claimant No. 4, father of the deceased. This payment shall be deposited by insurance company in the name of Sh. Dev Kumar Roy MACT No. 272/12 Sh. Amar Singh & Anr. v. Sh. Dinesh Pal Singh & Ors. Page 18 of 20 MACT No. 287/12 Smt. Tulsi Roy & Ors. v. Sh. Dinesh Pal Singh & Ors. Page 18 of 20 Mahapatra in SBI, Dwarka Courts, New Delhi. In view of advanced age of claimant No. 4, the amount shall be released to him immediately.
(5) All the original FDRs shall remain with the bank. Only copies thereof will be given to the claimants. However, pass books will be given to the claimants. No cheque book shall be issued to the claimants.
(6) No loan or advance will be given against these deposits.
(7) FDRs shall not be prematurely encashed without leave of this Tribunal.
81. In the case of Sh. Amar Singh & Anr. v. Sh. Dinesh Pal Singh, which is MACT No. 272/12, father of the deceased has stated that he needs Rs. 3 lacs for repair of house and payment of agricultural loan. In view of this, following directions are passed: (1) 40% out of the total compensation awarded, with proportionate interest shall be payable in favour of Claimant No. 1, Father of the deceased. This amount shall be deposited by the insurance company in the name of Sh. Amar Singh in SBI, Dwarka Courts, New Delhi. In view of financial needs as stated by him, the amount shall be released immediately.
(2) 60% out of the total awarded compensation with proportionate interest shall be payable in favour of Claimant No. 2, Mother of the deceased. This payment shall be deposited by insurance company in the name of Smt. Rani Devi in SBI, Dwarka Courts, New Delhi. This amount will be kept in 5 FDRs of equal amount for a period from 1 to 5 years with a provision for payment of monthly MACT No. 272/12 Sh. Amar Singh & Anr. v. Sh. Dinesh Pal Singh & Ors. Page 19 of 20 MACT No. 287/12 Smt. Tulsi Roy & Ors. v. Sh. Dinesh Pal Singh & Ors. Page 19 of 20 interest in her account.
(3) All the original FDRs shall remain with the bank. Only copies thereof will be given to the claimants. However, pass books will be given to the claimants. No cheque book shall be issued to the claimants.
(4) No loan or advance will be given against these deposits.
(5) FDRs shall not be prematurely encashed without leave of this Tribunal.
82. Nazir of this court will also send intimation of deposit of compensation to the claimants as well as to their counsel.
83. Ahlmad will put up this file with report from Nazir regarding deposit of compensation again on 30.04.2014.
84. Copy of this order be given to all the parties.
85. File be consigned to the Record Room.
Announced in the Open Court On the 30th day of January, 2014.
(ARUN BHARDWAJ) PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNALII DWARKA COURTS, NEW DELHI MACT No. 272/12 Sh. Amar Singh & Anr. v. Sh. Dinesh Pal Singh & Ors. Page 20 of 20 MACT No. 287/12 Smt. Tulsi Roy & Ors. v. Sh. Dinesh Pal Singh & Ors. Page 20 of 20