Delhi District Court
Smt. Kajal vs Sh. Prem Kumar Mahto on 12 July, 2022
MACP Nos. 1018/17 & 219/18, FIR No. 380/17; PS. Alipur DOD: 12.07.2022
IN THE COURT OF SHRI VINOD YADAV,
PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNAL,
NORTH DISTRICT, ROHINI COURTS, DELHI
MAC Petition No. 1018/17
1. Smt. Kajal,
Widow of Late Sh. Sachin,
(Widow of deceased)
2. Smt. Kamlesh,
W/o Late Sh. Anil Kumar,
(Mother of deceased)
3. Shiva,
S/o Late Sh. Anil Kumar
(Minor brother of deceased)
All R/o H.No. 15,
Shiv Mandir Wali Gali,
Village Bhorgarh,
Narela, Delhi.
.......Petitioners
VERSUS
1. Sh. Prem Kumar Mahto,
S/o Sh. Baidya Nath Mahto,
R/o Pojhiyan Tiwari Tola,
Lalganj, District Vaishali,
Bihar.
(Driver)
2. Sh. Ashok Kumar,
S/o Sh. Shish Ram,
R/o Pojhiyan Tiwari Tola,
Smt. Kajal & Ors & Kajal Vs.Prem Kumar & Ors. Page 1 of 25
MACP Nos. 1018/17 & 219/18, FIR No. 380/17; PS. Alipur DOD: 12.07.2022
Lalganj, District Vaishali,
Bihar.
(Registered Owner)
3. The New India Assurance Co. Ltd.
Arya Samaj Road,
Keltron Chambers,
Karol Bagh,
Delhi.
(Insurer) ........Respondents
AND
MAC Petition No. 219/18
Smt. Kajal,
Widow of Late Sh. Sachin,
R/o H.No. 15,
Shiv Mandir Wali Gali,
Village Bhorgarh,
Narela, Delhi. .......Petitioner
VERSUS
1. Sh. Prem Kumar Mahto,
S/o Sh. Baidya Nath Mahto,
R/o Pojhiyan Tiwari Tola,
Lalganj, District Vaishali,
Bihar.
(Driver)
2. Sh. Ashok Kumar,
S/o Sh. Shish Ram,
R/o Pojhiyan Tiwari Tola,
Lalganj, District Vaishali,
Bihar.
(Registered Owner)
Smt. Kajal & Ors & Kajal Vs.Prem Kumar & Ors. Page 2 of 25
MACP Nos. 1018/17 & 219/18, FIR No. 380/17; PS. Alipur DOD: 12.07.2022
3. The New India Assurance Co. Ltd.
Arya Samaj Road,
Keltron Chambers,
Karol Bagh,
Delhi.
(Insurer) ........Respondents
APPEARENCES
Sh. N.K. Singh, Ld. Counsel for petitioners/Lrs of deceased as well as
for injured.
Sh. Narender Singh, Ld. Counsel for driver and owner.
Sh. R.K. Gupta, Ld. Counsel for insurance co.
Petition under Section 166 and 140 of M.V. Act, 1988
for grant of compensation
AWARD:
1. Vide this common order, I shall dispose of both these claim
petitions with regard to fatal injuries sustained by Sh. Sachin (deceased in
MACP No. 1018/17) and injuries sustained by Smt. Kajal (injured in MACP
No. 219/17) in Motor Vehicular Accident which occurred on 05.09.2017 at
about 9:50 pm at Khampur Red Light, G.T.K. Road, NH1, Delhi, involving
Truck bearing registration no. HR55Q2428 (offending vehicle) being driven
in a rash and negligent manner by its driver(R1 herein).
2. Both these claim petitions were consolidated for the purpose of
recording of evidence vide order dated 15.04.2019, passed by my
Smt. Kajal & Ors & Kajal Vs.Prem Kumar & Ors. Page 3 of 25
MACP Nos. 1018/17 & 219/18, FIR No. 380/17; PS. Alipur DOD: 12.07.2022
Ld. Predecessor and MACP No. 1018/17 titled as "Smt. Kajal & Ors. Vs.
Prem Kumar Mahto & Ors" was treated as the leading case. Accordingly,
the evidence was led on behalf of both the sides in the leading case for the
purpose of these matters.
FACTS OF THE CASES
3. According to the claim petitions filed in both these cases, on 05.09.17, Sh. Sachin (deceased herein) and his wife Kajal(injured in MACP No. 219/18), were going from their house to Alipur market on a motorcycle bearing no. HR10B8154. At about 9:50 PM, when they reached Khampur Red Light, GTK Road, NH1, suddenly a truck bearing no. HR55Q2428 which was being driven by its driver/R1 in a rash and negligent manner, came from behind and hit the aforesaid motorcycle with a great force, as a result of which deceased and his wife fell down on the road and the front wheel of the truck ran over the chest of the deceased due to which he died on the spot and his wife also sustained injuries. Postmortem on the body of deceased Sh. Sachin was got conducted in BJRM Hopsital. FIR No. 380/17 u/s. 279/337/304A IPC was registered at PS. Alipur with regard to the said accident. The said offending vehicle was owned by respondent no. 2 and it was insured with The New India Assurance Co. Ltd./respondent no. 3 during the period in question.
4. In their joint written statement, the respondents no. 1 & 2 i.e. driver and registered owner have claimed that respondent no. 1 was not Smt. Kajal & Ors & Kajal Vs.Prem Kumar & Ors. Page 4 of 25 MACP Nos. 1018/17 & 219/18, FIR No. 380/17; PS. Alipur DOD: 12.07.2022 rash and negligent at the time of accident. They further claimed that respondent no. 1 was having valid driving licence at the time of accident and at the time of employment of respondent no.1, the respondent no.2 had taken the driving test of the respondent no. 1 alongwith a qualified driver and also seen the driving licence of the respondent no. 1 as shown by him and found the same to be genuine. They have also claimed that the alleged offending vehicle was insured with respondent no. 3 at the time of accident. Thus, they are not liable to pay any compensation to the petitioners. On merits, they have denied the averments made in the claim petitions and have prayed for its dismissal.
5. In identical but separate Written Statement filed in the cases, he respondent no.3 i.e.insurance company has admitted that offending vehicle was insured with it in the name of Sh. Ashok Kumar having validity from 28.03.2017 to 27.03.2018. It has claimed that police has seized the driving licence No.111/2015 of the driver Sh.Prem Kumar Mahto, S/oSh.Baidyanath and the same was found to be bogus.It has further claimed that the said DL was issued on 09.01.2015 for LMV as well as for transport vehicle. It has claimed that as per Motor Vehicle Act,a licence can be issued firstly for motorcycle/LMV(only)and a transport licence can be issued only after one year of issuance of licence for LMV. The aforesaid driving licence was issued to the respondent no. 1 for both LMV and transport vehicle on 09.01.2015, which is in contravention of the Motor Vehicle Act. Thus, the driving licence of the respondent no. 1 was invalid.
Smt. Kajal & Ors & Kajal Vs.Prem Kumar & Ors. Page 5 of 25MACP Nos. 1018/17 & 219/18, FIR No. 380/17; PS. Alipur DOD: 12.07.2022 Thus, it is not liable to pay any compensation to the petitioners. It has also claimed that the deceased was not holding driving licence at the time of accident and thus, kalandra u/s. 5/180 M.V. Act was also made against the owner of the motorcycle. It has claimed that deceased was driving his motorcycle in rash and negligent manner and after overtaking the offending vehicle, he came suddenly in front of it which resulted into the accident and thus, deceased has contributed in causing the accident and prayed for 50% deduction on the award amount on account of contributory negligence on the part of deceased. It has prayed for dismissal of claim petiion.
6. From pleading of the parties, the following issues were framed in MACP No. 1018/17 by Ld. Predecessor vide order dated 29.10.2018 :
1) Whether the deceased Sachin died in road traffic accident on 05.09.2017 at 9:50 pm at GTK Road Khampur Red Light towards Delhi Road, Delhi within the jurisdiction of PS. Alipur due to rash and negligent driving of truck no. HR55Q 2428 by its driver namely Prem Kumar/R1, owned by Sh. Ashok Kumar /R2 and was insured with The New India Assurance Co.
Ltd./R3? OPP.
2) Whether the Lrs of deceased are entitled to any compensation if so to what amount and from whom? OPP.
3) Relief.
Smt. Kajal & Ors & Kajal Vs.Prem Kumar & Ors. Page 6 of 25
MACP Nos. 1018/17 & 219/18, FIR No. 380/17; PS. Alipur DOD: 12.07.2022
7. From pleading of the parties, the following issues were framed in MACP No. 219/18 by Ld. Predecessor vide order dated 29.10.2018 :
1) Whether the injured Kajal suffered injuries in road traffic accident on 05.09.2017 at 9:50 pm at GTK Road Khampur Red Light towards Delhi Road, Delhi within the jurisdiction of PS. Alipur due to rash and negligent driving of truck no.
HR55Q2428 by its driver namely Prem Kumar/R1, owned by Sh. Ashok Kumar /R2 and was insured with The New India Assurance Co. Ltd./R3? OPP.
2) Whether the injured is entitled to any compensation if so to what amount and from whom? OPP.
3) Relief.
8. In order to establish their claim, the petitioners have examined only one witness i.e. PW1 Smt. Kajal (widow of deceased as well as injured in MACP No. 219/18) and closed their evidence on 15.04.19 through their counsel. On the other hand, no evidence was adduced by respondents no. 1 & 2. Respondent no. 3/Insurance company has examined one witness i.e. Sh. Ganesh Sharma, Head Clerk, DTO, Latehar, Jharkhand and its evidence was closed vide order dated 03.02.2020.
9. I have heard the arguments advanced by Ld. Counsels for the parties. My findings on the issues are as under: Smt. Kajal & Ors & Kajal Vs.Prem Kumar & Ors. Page 7 of 25 MACP Nos. 1018/17 & 219/18, FIR No. 380/17; PS. Alipur DOD: 12.07.2022 ISSUE NO. 1 ( IN BOTH THE CASES)
10. For the purpose of this issue, the testimony of PW1 Smt. Kajal(widow of deceased as well as eyewitness of the accident) is relevant. PW1 has deposed in her evidence by way of affidavit (Ex. PW1/A) that on 05.09.17, she and her husband Sh. Sachin (deceased herein) were going from their house to Alipur market on a motorcycle bearing no. HR10B8154. She further deposed that at about 9:50 PM, when they reached Khampur Red Light, GTK Road, NH1, suddenly a truck bearing no. HR55Q2428 which was being driven by its driver/R1 in rash and negligent manner, came from behind and hit the aforesaid motorcycle with a great force, as a result of which deceased and his wife fell down on the road and the front wheel of the truck ran over the chest of the deceased due to which he died on the spot and his wife also sustained injuries. Postmortem on the body of deceased Sh. Sachin was got conducted in BJRM Hopsital. FIR No. 380/17 u/s. 279/337/304A IPC was registered at PS. Alipur with regard to the said accident. She categorically deposed that accident in question occurred due to rash and negligent driving on the part of the driver of offending vehicle i.e. truck bearing registration no. HR55Q2428 and was solely responsible for the aforesaid accident. She has relied upon following documents: Smt. Kajal & Ors & Kajal Vs.Prem Kumar & Ors. Page 8 of 25 MACP Nos. 1018/17 & 219/18, FIR No. 380/17; PS. Alipur DOD: 12.07.2022 Serial Description of Remarks No. documents
1. Copy of her Aadhaar Card Ex. PW1/1
2. Copy of Aadhaar Card of Ex.PW1/2 deceased
3. Copy of Aadhaar Card of Ex. PW1/3(colly) younger brother of deceased
4. Copy of Aadhaar Card of Ex. PW1/4 deceased
5. Her medical treatment Ex. PW1/5(colly) record alongwith medical bill
6. DAR Ex. PW1/6(colly)
11. During her crossexamination on behalf of respondents no. 1 & 2, she deposed that she had studied upto 12 th standard. She further deposed that someone from the public made a call to the police at 100 number. She further deposed that police did not record the name and address of any public person present at the spot at the time of accident. She further deposed that PCR Van took them to the hospital after the accident. She deposed that PCR Van PCR Van came at the spot after about one and half hour of the accident. She further deposed that till she remained at the spot after the accident, she did not call anyone from there. She denied the suggestion that accident in question occurred due to rash and negligent driving of motorcycle by her deceased husband. She further denied the suggestion that her deceased husband did not know the driving of motorcycle. She denied the suggestion that the vehicle bearing no. HR55Q2428 has been falsely implicated by her in the present case.
Smt. Kajal & Ors & Kajal Vs.Prem Kumar & Ors. Page 9 of 25MACP Nos. 1018/17 & 219/18, FIR No. 380/17; PS. Alipur DOD: 12.07.2022
12. During her crossexamination on behalf of Ld. Counsel for insurance company, she admitted that she had not filed any driving licence of the deceased on the court record. She deposed that the police had filed a kalandra against her deceased husband as well as against the owner of the motorcycle for not having the driving licence by the driver/deceased and authorizing the driver to drive the vehicle without licence against the owner. She volunteered that her deceased husband was having driving licence but the same was lost in the accident. She deposed that she did not have photocopy of DL of the deceased. She further deposed that she did not know from which authority and when the DL of her deceased husband was issued. She denied the suggestion that her deceased husband was not holding any DL at the time of accident that is why, she was not able to give any detail of the same. She further denied the suggestion that accident in question occurred due to the negligence of her deceased husband.
13. It is evident from the testimony of PW1 that the respondents could not impeach her testimony through litmus test of crossexamination and said witness is found to have successfully withstood the test of cross examination. Even otherwise, the testimony of said witness inspires confidence as she herself shown to have sustained injuries due to the accident. Moreover, it is an undisputed fact that FIR No. 380/17 u/s 279/337/304A IPC was registered at PS. Alipur with regard to accident in question. Copy of said FIR (which is part of DAR Ex. PW1/6 (colly), would show that same was registered on 06.09.2017 (accident being caused on 05.09.2017 at 9:50 PM) who is also one of the injured in MACP No. 219/18. Thus, FIR is shown to have been registered promptly and without any Smt. Kajal & Ors & Kajal Vs.Prem Kumar & Ors. Page 10 of 25 MACP Nos. 1018/17 & 219/18, FIR No. 380/17; PS. Alipur DOD: 12.07.2022 delay. Hence, there is no possibility of false implication of respondent no. 1 and/or false involvement of Truck bearing registration no. HR55Q2428 at the instance of petitioners herein.
14. It is pertinent to note that the respondent no.1/driver of aforesaid tempo, was the other material witness to throw light by testifying as to how and under what circumstances, the accident had taken place. However, he has preferred not to enter into the witness box. Thus, an adverse inference is liable to be drawn against him to the effect that the accident in question occurred due to rash and negligent driving of truck bearing no. HR55Q2428 by him.
15. Not only this, the respondent no. 1 namely Sh. Prem Kumar Mehto (accused in State case) has been charge sheeted for the offences punishable U/s 279/337/304A IPC by the investigating agency after arriving at the conclusion on the basis of investigation carried out by it that the accident in question had occurred due to rash and negligent driving of offending vehicle by him. Same would also point out towards rash and negligent driving of offending vehicle by respondent no. 1.
16. Copy of MLCs (which is part of DAR Ex. PW1/6) of injured namely Kajal and deceased Sachin filed would show that they had been removed to SRHC Hospital, Narela, Delhi with alleged history of RTA on 05.09.17 at 10:27 PM. They are shown to have sustained multiple injuries Smt. Kajal & Ors & Kajal Vs.Prem Kumar & Ors. Page 11 of 25 MACP Nos. 1018/17 & 219/18, FIR No. 380/17; PS. Alipur DOD: 12.07.2022 as mentioned therein. Not only this, postmortem was got conducted on the body of deceased Sh. Sachin. The injuries as mentioned in the relevant column of external injuries of the said report, are also consistent with the injuries which are sustained in road traffic accident. Again, there is no challenge to the aforesaid documents from the side of respondents including insurance company.
17. In view of the aforesaid discussion and the evidence which has come on record, it is held that the petitioners have been able to prove on the basis of pre ponderence of probabilities that Sh. Sachin had sustained fatal injuries, whereas petitioner Kajal had sustained injuries in the road accident which took place on 05.09.2017 at about 9:50 pm at Khampur Red Light, G.T.K. Road, NH1, Delhi, due to rash and negligent driving on the part of driver of offending vehicle. Thus, this issue is decided in favour of petitioners and against the respondents in both these claim petitions.
ISSUE NO.2
18. Section 168 of the Act enjoins the Claims Tribunal to hold an inquiry into the claim to make an award determining the amount of compensation which appears to it to be just and reasonable. It has to be borne in mind that the compensation is not expected to be a windfall or a bonanza nor it should be niggardly.
Smt. Kajal & Ors & Kajal Vs.Prem Kumar & Ors. Page 12 of 25MACP Nos. 1018/17 & 219/18, FIR No. 380/17; PS. Alipur DOD: 12.07.2022 Compensation in MACP No. 219/18 (Deceased Sachin) LOSS OF DEPENDENCY
19. As already stated above, the claimants are the widow, mother and younger/minor brother of deceased. PW1 Smt. Kajal (widow of deceased) has deposed in her evidence by way of affidavit (Ex. PW1/A) that deceased was doing private job and was earning Rs. 15,000/ per month at the time of accident. She further deposed that all the petitioners were financially dependent upon the income of deceased.
20. During her cross examination on behalf of insurance company, she deposed that she was residing in her matrimonial house. She admitted that in her affidavit given to the police, she had mentioned that her deceased husband was labourer at the time of accident but in her affidavit Ex. PW1/A in para no. 6, she had mentioned that her deceased husband was doing private job at the time of accident. She deposed that she did not have any document to show that her deceased husband was doing private job and earning Rs. 15,000/ per month at the time of accident. She denied the suggestion that neither her deceased husband was working nor he was earning the aforesaid amount at the time of accident. She further denied the suggestion that Shiva who was younger brother of deceased, was not dependent upon the deceased at the time of accident.
21. During the course of arguments, counsel for petitioners fairly conceded that for want of any cogent and definite evidence being led by petitioners regarding monthly income of deceased, his income should be Smt. Kajal & Ors & Kajal Vs.Prem Kumar & Ors. Page 13 of 25 MACP Nos. 1018/17 & 219/18, FIR No. 380/17; PS. Alipur DOD: 12.07.2022 considered as per Minimum Wages Act in order to calculate the loss of dependency. He however argued that future prospects should also be awarded to the petitioners as per law.
22. As already noted above, PW1 Smt. Kajal who is widow of deceased, deposed during her cross examination that she had not filed any document regarding earning of her deceased husband at the time of accident. Hence, it is held that the petitioners have failed to prove that deceased was employed or earning any amount at the time of accident. For want of cogent and definite evidence being led by petitioners with regard to actual monthly income of deceased, his notional monthly income is being taken as equivalent to that of an unskilled worker under Minimum Wages Act applicable during the relevant period. The minimum wages of an unskilled worker were Rs. 13,584/ per month as on the date of accident which is 05.09.2017.
23. As per the case of petitioners, deceased Sachin was aged about 21 years at the time of accident. It is pertinent to note that petitioners have filed copy of Aadhaar Card (Ex. PW1/4) of deceased, wherein date of birth of deceased is mentioned as 08.07.1996. The respondents have not disputed the said age of deceased as mentioned in the said document. They have also not led any evidence in order to controvert the said age of deceased as claimed by the petitioners. Thus, the age of deceased is accepted as 21 years at the time of accident. Hence, the multiplier of 18 Smt. Kajal & Ors & Kajal Vs.Prem Kumar & Ors. Page 14 of 25 MACP Nos. 1018/17 & 219/18, FIR No. 380/17; PS. Alipur DOD: 12.07.2022 would be applicable in view of pronouncement made by Constitutional Bench of Apex Court in the case titled as "National Insurance Company Ltd. Vs. Pranay Sethi & Ors." passed in SLP(Civil) No. 25590/14 decided on 31.10.17.
24. Considering the fact that deceased was aged about 21 years at the time of accident and was not having permanent job at that time, future prospects @ 40% has to be awarded in favour of petitioners in view of recent pronouncement made by Constitutional Bench of Apex Court in the case titled as "National Insurance Company Ltd. Vs. Pranay Sethi & Ors." mentioned supra, as well as in view of recent decision of Hon'ble Delhi High Court in appeal bearing MAC APP No. 798/2011 titled as "Bajaj Allianz General Insurance Company Ltd. Vs. Pooja & Ors", decided on 02.11.17.
25. PW1 has categorically deposed in her evidence by way of affidavit (Ex. PW1/A) that all the petitioners were fully dependent upon the of deceased. Said part of her testimony remained unchallenged and uncontroverted from the side of respondents. No evidence in rebuttal has been led by respondents during the course of inquiry. Considering all these facts and circumstances, it is accepted that there were three dependents on the income of deceased at the time of accident. Hence, there has to be deduction of one third as held in the case of Pranay Sethi mentioned supra. Thus, the total of loss of dependency would come out to Smt. Kajal & Ors & Kajal Vs.Prem Kumar & Ors. Page 15 of 25 MACP Nos. 1018/17 & 219/18, FIR No. 380/17; PS. Alipur DOD: 12.07.2022 Rs. 27,39,000/ (rounded off) (Rs. 13,584/ X 2/3 X 140/100 X 12 X 18). Hence, a sum of Rs. 27,39,000/ is awarded under this head in favour of the petitioners.
LOSS OF LOVE & AFFECTION
26. After the celebrated judgment of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors. mentioned supra and recent judgment titled New India Assurance Company Limited versus Somwati & Ors., Civil Appeal no. 3093 of 2020 dated 07.09.2020 the petitioners are not entitled to be compensated under this head. Further Hon'ble Delhi High Court in appeal titled as "Bajaj Allianz General Insurance Company Ltd. Vs. Pooja & Ors", mentioned supra has been pleased to observe in para 18 of the judgment that the constitution bench decision in Pranay Sethi (supra) does not recognize any other nonpecuniary head of damages. Hence, no amount of compensation is being awarded under this head.
LOSS OF CONSORTIUM
27. In view of the judgment of Hon'ble Supreme Court in case titled as New India Assurance Company Limited versus Somwati & Ors., Civil Appeal no. 3093 of 2020, dated 07.09.2020 I am of the considered opinion that widow, mother and minor/younger brother of deceased are entitled for payment of Rs. 40,000/ each towards loss of consortium. Consequently, a sum of Rs. 1,20,000/ is awarded to the petitioners under this head.
Smt. Kajal & Ors & Kajal Vs.Prem Kumar & Ors. Page 16 of 25MACP Nos. 1018/17 & 219/18, FIR No. 380/17; PS. Alipur DOD: 12.07.2022 LOSS OF ESTATE & FUNERAL EXPENSES
28. In view of the facts and circumstances of the present case and in view of decision of Hon'ble Apex Court in the case of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors." mentioned supra, a sum of Rs. 15,000/ each is awarded in favour of petitioners on account of loss of estate and funeral expenses.
The total compensation is assessed as under:
1. Loss of dependency Rs. 27,39,000/
2. Loss of consortium Rs. 1,20,000/
3. Loss of Estate & Funeral Rs. 30,000/ Expenses Total Rs. 28,89,000/ Compensation in MACP No. 219/18(Injured Kajal)
29. PW1 i.e. injured Smt. Kajal has deposed in her evidence by way of affidavit (Ex. PW1/A) that she has also sustained injuries in the accident in question and received treatment from Febris Multispeciality Hospital and other private hospital. She deposed to have spent a sum of Rs. 1500/ on her medical treatment. She has relied upon her medical treatment record and original bill (Ex. PW1/5 colly). During her cross examination on behalf of respondent no. 3, she deposed that whatever medical bills she had, she had already placed the same on record. She denied the suggestion that she had not spent Rs. 1500/ on his medical Smt. Kajal & Ors & Kajal Vs.Prem Kumar & Ors. Page 17 of 25 MACP Nos. 1018/17 & 219/18, FIR No. 380/17; PS. Alipur DOD: 12.07.2022 treatment. The respondents no. 1 & 2 did not crossexamine this witness on this aspect at all.
30. It is relevant to note that the injured has filed medical bills to the tune of Rs. 70/ only. It is quite evident that the respondents have not disputed the authenticity and genuineness of the said medical bills during the course of inquiry. They have also not led any evidence in rebuttal so as to create any doubt on the genuineness of said bills. Accordingly, a sum of Rs. 100/ is awarded to the petitioner for medical expenses.
31. The MLC (which is part of DAR Ex. PW1/6 colly) of SRHC Hospital, Narela, Delhi of petitioner/injured Kajal, would reveal that she had suffered simple injury in the accident. Hence, she is not found to have sustained grievous injuries as per medical treatment record filed by her. Keeping in view the medical treatment record of petitioner available on record, the discussion made herein above and since the nature of injuries suffered by her being not found to be grievous, I hereby award total notional amount of Rs. 25,000/ towards pain and sufferings, special diet, etc, to him. Thus, a sum of Rs. 25,100/(Rs. 100/ plus Rs. 25,000/) is awarded to the petitioner towards medical expenses, pain & sufferings, special diet etc.
32. Now, the question which arises for determination is as to which of the respondents is liable to pay the compensation amount. Counsel for insurance company sought to avoid the liability of insurance company to Smt. Kajal & Ors & Kajal Vs.Prem Kumar & Ors. Page 18 of 25 MACP Nos. 1018/17 & 219/18, FIR No. 380/17; PS. Alipur DOD: 12.07.2022 pay the compensation amount on the ground that driver/respondent no. 1 was not having valid driving licence at the time of accident.
33. In order to substantiate the said plea, insurance company has examined Sh. Ganesh Sharma, Head Clerk, DTO, Latehar, Jharkhand as R3W1. He has produced the register containing the entries of licences issued by their Authority in the year 2015. He exhibited the relevant page of the register containing the entry for licence no. 111/15 as Ex. R3W1/A. He deposed that he could not say anything about the aforesaid record produced by him. He was not crossexamined by Ld. Counsel for respondents no. 1 & 2 despite grant of opportunity.
34. It may be noted here that on 25.09.2018, ASI Narender Kumar of PS. Alipur had filed report regarding verification of DL of respondent no. 1 and as per said report, there was valid and effective DL in favour of R1 for the category of HGV as on the date of accident i.e. on 05.09.2017. Keeping in view the existence of valid insurance policy, respondent no. 3/insurance company becomes liable to pay the compensation amount, as insurance company is liable to indemnify the insured. Issue no. 2 is decided accordingly.
Smt. Kajal & Ors & Kajal Vs.Prem Kumar & Ors. Page 19 of 25MACP Nos. 1018/17 & 219/18, FIR No. 380/17; PS. Alipur DOD: 12.07.2022 ISSUE NO. 3 RELIEF
35. n view of my findings on issues no. 1 & 2, following order is passed after relying upon judgment "Oriental Insurance Company Ltd. Vs. Sangeeta Devi & Ors bearing MAC. APP. 165/2011 decided on 22.02.2016.
a) A sum of Rs. 28,89,000/(Rupees Twenty Eight Lacs and Eighty Nine Thousand only) in MAC Petition No. 1018/17 alongwith interest @ 9% per annum in favour of petitioners and against the respondents w.e.f. date of filing of the petition i.e. 14.12.17 till the date of its realization.
b) A sum of Rs. 25,100/(Rupees Twenty Five Thousand and One Hundred Only) in MAC Petition No. 219/18 alongwith interest @ 9% per annum in favour of petitioner and against the respondents w.e.f. date of filing of the petition i.e. 28.03.18 till the date of its realization.
Issue no. 3 is decided accordingly.
APPORTIONMENT
36. Statements of petitioners in terms of Clause 29 MCTAP were recorded on 02.03.2021 & 07.12.2021. Having regard to the facts and circumstances of the case and in view of their statements, it is hereby ordered that out of total compensation amount in MAC Petition No. 1018/17, the petitioner no. 1 Smt. Kajal shall be entitled to share amount of Rs. 12,00,000/ (Rupees Twelve Lakhs Only) alongwith proportionate Smt. Kajal & Ors & Kajal Vs.Prem Kumar & Ors. Page 20 of 25 MACP Nos. 1018/17 & 219/18, FIR No. 380/17; PS. Alipur DOD: 12.07.2022 interest, the petitioner no. 2 Smt. Kamlesh shall be entitled to share amount of Rs. 12,89,000/ (Rupees Twelve Lakhs and Eighty Nine Thousand Only) alongwith proportionate interest and the petitioner no. 3 namely Shiva shall be entitled to remaining share amount of Rs. 4,00,000/ (Rupees Four Lakhs Only) alongwith proportionate interest.
37. Out of share amount of petitioner no. 1, a sum of Rs. 3,00,000/ (Rupees Three Lakhs Only) shall be immediately released to her through her saving bank account no. 520101253382446 with Union Bank of India, Tikri Khurd, Delhi, having IFSC Code UBIN0919446 and remaining amount alongwith interest amount are directed to be kept in the form of FDRs in the multiples of Rs. 30,000/ each for one month, two months, three months and so on and so forth having cumulative interest.
38. Out of share amount of petitioner no. 2, a sum of Rs. 4,89,000/ (Rupees Four Lakhs and Eighty Nine Thousand Only) shall be immediately released to her through her saving bank account no. 600101011003136 with Vijaya Bank, Bhorgarh, Delhi, having IFSC Code VIJB0006001 and remaining amount alongwith interest amount are directed to be kept in the form of FDRs in the multiples of Rs. 35,000/ each for one month, two months, three months and so on and so forth having cumulative interest.
39. The entire share amount of petitioner no. 3 shall be kept in the form of FDR till he attains the age of 18 years. However, monthly interest is Smt. Kajal & Ors & Kajal Vs.Prem Kumar & Ors. Page 21 of 25 MACP Nos. 1018/17 & 219/18, FIR No. 380/17; PS. Alipur DOD: 12.07.2022 allowed to be withdrawn by him through his grandmother to be used for his welfare and upbringment.
40. In MACP No. 219/18, the entire award amount of Rs. 25,100/ (Rupees Twenty Five Thousand and One Hundred Only) alongwith interest shall be immediately released to her through her saving bank account and remaining amount alongwith interest amount are directed to be kept in the form of FDRs in the multiples of Rs. 10,000/ each for a period of one month, two months, three months and so on and so forth, having cumulative interest.
41. All the FDRs to be prepared as per aforesaid directions, shall be subject to the following conditions:
(a) The Bank shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the claimant(s) i.e. the savings bank account(s) of the claimant(s) shall be an individual savings bank account(s) and not a joint account(s).
(b) The original fixed deposit shall be retained by the bank in safe custody. However, the statement containing FDR number, FDR amount, date of maturity and maturity amount shall be furnished by bank to the claimant(s).
(c) The monthly interest be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant(s) near the place of their residence.
Smt. Kajal & Ors & Kajal Vs.Prem Kumar & Ors. Page 22 of 25MACP Nos. 1018/17 & 219/18, FIR No. 380/17; PS. Alipur DOD: 12.07.2022
(d) The maturity amounts of the FDR(s) be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant(s) near the place of their residence.
(e) No loan, advance, withdrawal or premature discharge be allowed on the fixed deposits without permission of the Court.
(f) The concerned bank shall not to issue any cheque book and/or debit card to claimant(s). However, in case the debit card and /or cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount. The bank shall debit card(s) freeze the account of the claimant(s) so that no debit card be issued in respect of the account of the claimant(s) from any other branch of the bank.
(g) The bank shall make an endorsement on the passbook of the claimant(s) to the effect that no cheque book and/or debit card have been issued and shall not be issued without the permission of the Court and claimant(s) shall produce the passbook with the necessary endorsement before the Court on the next date fixed for compliance.
(h) It is clarified that the endorsement made by the bank alongwith the duly signed and stamped by the bank official on the passbook(s) of the claimant(s) is sufficient compliance of clause(g) above.
(i) The petitioner is directed to open a Motor Accident Claims Annuity (Term) Deposit Account (MACAD) in terms of order dated 07.12.2018 of Hon'ble Justice J.R. Midha in case titled as Rajesh Tyagi and Others Vs. Jaibir Singh and Others F.A.O No. 842/03 as per clause 31 of MCTAP and form VIII titled as Motor Accident Claims Annuity Deposit (MACAD) Scheme as directed in the said order.
(j) Concerned Manager, SBI, Rohini Court branch is further directed to disburse the FD amount in Motor Accident Claims Annuity Deposit (MACAD) Scheme account as directed by Hon'ble Delhi High Court vide order dated 07.12.18, on completing necessary formalities as per rules.
Smt. Kajal & Ors & Kajal Vs.Prem Kumar & Ors. Page 23 of 25MACP Nos. 1018/17 & 219/18, FIR No. 380/17; PS. Alipur DOD: 12.07.2022
42. Respondent no. 3, being insurer of offending vehicle, is directed to deposit the award amount with SBI, Rohini Courts branch within 30 days as per above order, failing which insurance company shall be liable to pay interest @ 12% p.a for the period of delay. Concerned Manager, SBI, Rohini Court Branch is directed to transfer the respective amounts of petitioners in their aforesaid saving bank accounts mentioned supra, on completing necessary formalities as per rules. He be further directed to keep the said amount in fixed deposit in its own name till the claimants approach the bank for disbursement so that the award amount starts earning interest from the date of clearance of the cheques. Copy of this award be given dasti to claimants. Copy of this award be also given dasti to counsel for insurance company for compliance. Copy of this award alongwith one photograph each, specimen signatures, copy of bank passbooks and copy of residence proof of both the petitioners, be sent to Nodal Officer of SBI, Rohini Court, Branch, Delhi for information and necessary compliance. Form XV, XVI & XVII in terms of MCTAP are annexed herewith as AnnexureA. Copy of order be also sent to concerned M.M and DLSA as per clause 31 and 32 of MCTAP. Signed copy of this Award be placed on the judicial record of MAC Petition No. 219/18 as per the rules.
Announced in the open Court on 12.07.2022 (VINOD YADAV) Judge MACT2 (North) Smt. Kajal & Ors & Kajal Vs.Prem Kumar & Ors. Page 24 of 25 MACP Nos. 1018/17 & 219/18, FIR No. 380/17; PS. Alipur DOD: 12.07.2022 Rohini Courts, Delhi Certified that above award contains 25 pages and each page is signed by me.
(VINOD YADAV) Judge MACT2 (North) Rohini Courts, Delhi Smt. Kajal & Ors & Kajal Vs.Prem Kumar & Ors. Page 25 of 25