Delhi District Court
Ahilya Singh @ Ahilya Devi vs . Oriental on 31 March, 2018
IN THE COURT OF SH. M. K. NAGPAL
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS
TRIBUNAL PATIALA HOUSE COURTS, NEW DELHI
IN THE MATTER OF:
AHILYA SINGH @ AHILYA DEVI VS. ORIENTAL
INSURANCE COMPANY LTD.
MACP NO. 87/14
Smt. Ahilya Singh @ Ahilya Devi, (Mother )
W/o. Late Sh. Dharmendra Singh
R/o. H. No. 141, Village Parmanandpur
Pukhouli, Lalganj Vais, Vaishali, Bihar.
Also At:
H.No. 26-A, Khasra No.607, Village Rangpuri,
New Delhi.
......Petitioner
Versus
The Oriental Insurance Co. Ltd. (Insurer)
Through its Manager,
Oriental House, A-25/27, Asaf Ali Road,
New Delhi-110002.
.....Respondents
Date of filing of petition : 07.04.2014
Date of framing of issues : 03.06.2014
Date of concluding arguments : 21.03.2018
Date of decision : 31.03.2018
AWARD/JUDGMENT
1. This claim petition has been filed under Section 163A of the Motor Vehicles Act, 1988 (hereinafter referred to as the MV Act) by the petitioner seeking a compensation of Rs.5,00,000/- from the respondent, on the principle of no fault liability contained in the said Section, in respect of death of her minor son Master Aditya in a road accident that took place on 13.11.2012 at around 8pm on NH-
MACP No.87/14 1/188, on the road leading from Delhi towards Gurgaon, Near Satbir Petrol Pump, Rajokri, New Delhi. One FIR No. 368/12, under Sections 279/304A IPC was registered at PS Vasant Kunj (South) regarding the above accident.
2. Facts of the case, briefly stated, are that on the above said date and time, the deceased Master Aditya was riding on pillion on a motorcycle bearing registration no. DL-9SZ-9041 being driven by his father Sh. Dharmendra Singh (since deceased) and when the said motorcycle had reached at the above place of accident, it was allegedly hit by a four wheeler vehicle, which had remained untraced. As a result of the above accident, both the occupants of motorcycle fell on the road and received injuries, which proved fatal for both of them. The above criminal case has already resulted into filing of an untrace final report before the Court of Ld.MM concerned, which stands accepted by the Ld. MM. The petitioner is mother of the deceased Master Aditya and is his sole surviving legal heir (LR).
3. The present claim petition was filed on 07.04.2014 and on being issued notice of the petition, the respondent/Insurance Co. has duly filed its WS/reply on record, wherein it has been specifically admitted by it that the above motorcycle was insured with it on date of accident, though it has not been admitted that it was insured in the name of Sh. Dharmendra Singh, i.e. father of the deceased Master Aditya. However, the Insurance Co. has not denied or disputed the copy of insurance policy of the above vehicle filed on record by the petitioner showing that it was so insured in the name of Sh. Dharmendra Singh. The submission of the respondent is that their liability is only as per the terms and conditions contained MACP No.87/14 2/18 in the insurance policy and the same stood violated as it was being driven without a valid driving licence by the insured. The other facts and allegations in the petition have also been denied, either as wrong or for want of knowledge on the part of the respondent.
4. From pleadings of the parties, the following issues were framed on 03.06.2014:-
"1.Whether Sh.Aditya Kumar Singh sustained fatal injuries in the accident which occurred on 13.11.2012 at about 20:00 hours at NH-8, way to Gurgaon from Delhi, Near Satbir Petrol Pump, Rajokri, New Delhi involving vehicle No. DL-9SZ- 9041 insured with respondent? OPP.
2.Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
3.Relief."
5. The petitioner in support of her case has examined herself on record as her sole witness and has also tendered on record certain documents as Ex.PW1/1 to Ex.PW1/3 and Marks A-1 and A-2. However, no evidence has been led on record by the respondent to counter the same.
6. I have heard the arguments advanced by Sh. B.P. Saxena, Ld. Advocate on behalf of Sh. Jitender Kamra, Ld. Advocate for the petitioner and Mohd. Shafiullah, Ld. Counsel for the respondent/Insurance Co. I have also carefully perused the entire material available on record. My issue-wise findings are as under:-
ISSUE NO. 1Section 163A of the MV Act provides as under:-
"163A. Special provisions as to payment of compensation on structured formula basis.--
(1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of MACP No.87/14 3/18 motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be.
Explanation.--For the purposes of this sub-section, "permanent disability" shall have the same meaning and extent as in the Workmen's Compensation Act, 1923 (8 of 1923).
(2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.
(3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule."
7. Since this petition has been filed under Section 163A of the MV Act, all that the petitioner has to prove as per the requirements of the above said Section and the above issue framed on its basis is that the death of Master Aditya had taken place as a result of the injuries suffered by him in the above accident involving use of the above motorcycle.
8. Earlier, there had been a controversy as to whether the element of rash and negligent driving on the part of driver of the vehicle involved in an accident in such a claim petition is required to be proved or not before the claim for compensation raised by dependents of a deceased can be allowed under the above Section. In the case of Minu B. Mehta and another Vs. Balkrishna Ramchandra Nayan and Another, 1977 A. C. J. 118, the Hon'ble Supreme Court was of the view that rash and negligent driving on the part of driver of such a vehicle was first required to be proved before the owner of the vehicle could be asked to pay compensation to the victim on the basis of vicarious liability. The relevant observations made by their Lordships in the said case are as under:-
"22. The liability of the owner of the cars to compensate the victim in a car accident due to the negligent driving of his servant is based on the law of tort. Regarding the negligence of the servant the owner is made liable on the basis of vicarious liability. Before the master could be made liable it is MACP No.87/14 4/18 necessary to prove that the servant was acting during the course of employment and that he was negligent."
9. But, subsequently in the case of Oriental Insurance Co. Ltd. Vs. Meena Variyal & Ors., 2007 ACJ 1284, the Hon'ble Supreme Court took the view that in case of a claim made under Section 163A of the MV Act there is no such requirement for proving of rash and negligent driving on the part of driver of the vehicle involved in the accident. The relevant propositions of law laid down by the Hon'ble Supreme Court in this case are as under:-
"23...................On a careful understanding of the decision in Gujarat State Road Transport Corporation (supra) we cannot understand it as having held that in all claims under the Act proof of negligence as the basis of a claim is jettisoned by the scheme of the Act. In the context of Sections 166 and 163A of the Act of 1988, we are persuaded to think that the so called obiter observations in Minu B. Mehta's case (supra) govern a claim under Section 166 of the Act and they are inapplicable only when a claim is made under Section 163A of the Act. Obviously, it is for the claimant to choose under which provision he should approach the Tribunal and if he chooses to approach the Tribunal under Section 166 of the Act, we cannot see why the principle stated in Minu B. Mehta's case should not apply to him. We are, therefore, not in a position to accept the argument of learned counsel for the respondents that the observations in Minu B. Mehta's case deserve to be ignored.
24. We think that the law laid down in Minu B. Mehta & Anr. Vs. Balkrishna Ramchandra Nayan & Anr. (supra) was accepted by the legislature while enacting the Motor Vehicles Act, 1988 by introducing Section 163A of the Act providing for payment of compensation notwithstanding anything contained in the Act or in any other law for the time being in force that the owner of a motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of the motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be, and in a claim made under sub-section (1) of Section 163A of the Act, the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle concerned. Therefore, the victim of an accident or his dependents have an option either to proceed under Section 166 of the Act or under Section 163A of the Act. Once they approach the Tribunal under Section 166 of the Act, they have necessarily to take upon themselves the burden of establishing the negligence of the driver or owner of the vehicle concerned. But if they proceed under Section 163A of the Act, the compensation will be awarded in terms of the Schedule without calling upon the victim or his dependents to establish any negligence or default on the part of the owner of the vehicle."
10. However, the above controversy now stands settled by the recent judgment dated 24.11.2017 pronounced by the Hon'ble MACP No.87/14 5/18 Supreme Court in the case of United India Insurance Co. Ltd. Vs. Sunil Kumar & Anr., 2017 Law Suit(SC) 1225, wherein it has been held by their Lordships that the above element is not required to be proved in a claim petition under Section 163A of the said Act. The relevant propositions of law laid down by the Hon'ble Supreme Court in the above said case are being reproduced as under:-
"8. From the above discussion, it is clear that grant of compensation under Section 163-A of the Act on the basis of the structured formula is in the nature of a final award and the adjudication thereunder is required to be made without any requirement of any proof of negligence of the driver/owner of the vehicle(s) involved in the accident. This is made explicit by Section 163-A (2). Though the aforesaid section of the Act does not specifically exclude a possible defence of the Insurer based on the negligence of the claimant as contemplated by Section 140(4), to permit such defence to be introduced by the Insurer and/or to understand the provisions of Section 163A of the Act to be contemplating any such situation would go contrary to the very legislative object behind introduction of Section 163A of the Act, namely, final compensation within a limited time frame on the basis of the structured formula to overcome situations where the claims of compensation on the basis of fault liability was taking an unduly long time. In fact, to understand Section 163-A of the Act to permit the Insurer to raise the defence of negligence would be to bring a proceeding under Section 163A of the Act at par with the proceeding under Section 166 of the Act which would not only be self- contradictory but also defeat the very legislative intention.
9. For the aforesaid reasons, we answer the question arising by holding that in a proceeding under Section 163A of the Act it is not open for the Insurer to raise any defence of negligence on the part of the victim."
11. Coming to the facts of present case, the petitioner/PW1 has tendered on record her examination-in-chief by way of an affidavit Ex.PW1/A, in which she has specifically deposed about the factum as well as the manner of the above accident. It is found specifically deposed in the said affidavit that at the time of accident with the above unknown four wheeler vehicle, the deceased Master Aditya was riding on pillion with his father Sh. Dharmendra Singh on the above motorcycle bearing registration no. DL-9SZ-9041 and the above accident had taken place on the above said date, time and place. There is no challenge to the above depositions made by this MACP No.87/14 6/18 witness on behalf of the respondent as during the course of her cross-examination nothing material could be extracted out from her, which could suggest that the above accident did not take place in the above manner or the above motorcycle was not involved in the said accident and the death of Master Aditya had not resulted therefrom. Moreover, the oral depositions of the petitioner/PW1 on this aspect are also duly substantiated by the documents of the criminal case brought in evidence by the petitioner as Ex.PW1/2 (Colly.), which consist of a copy of the FIR, copy of final untrace report, copy of site plan, copy of the MLCs and reports of postmortem not only of the deceased Master Aditya, but also of his deceased father Sh. Dharmendra Singh and also a copy of the mechanical inspection report of the above motorcycle.
12. Hence, in view of the above, it is held that the petitioner has successfully proved on record that the death of her minor son Master Aditya had taken place in the above accident involving use of the above motorcycle bearing registration no. DL-9SZ-9041 and therefore, this issue is accordingly decided in favour of the petitioner and against the respondent.
ISSUE NO. 213. Since this is a petition under Section 163A of the MV Act, the compensation to be granted to the petitioner is to be governed as per the structured formula and table given in the Second Schedule of the above said Act, as amended and interpreted by the legal pronouncements.
14. The Second Schedule of the MV Act lays down the framework and scheme for grant of compensation for third party MACP No.87/14 7/18 fatal/injury cases instituted under Section 163A of the MV Act dealing with no fault liability. Clause 6 of the said Schedule deals with notional income to be taken for calculations of compensation in such cases in respect of those persons who had no actual income on the date of accident and as per sub-clause (a) thereof, a non earning person shall be deemed to be having a notional income of Rs. 15,000/- per annum, except in case of 'spouse' whose earnings as per sub-clause (b) shall be taken as 1/3rd of income of a earning/surviving spouse. Otherwise, the ceiling of Rs. 40,000/- per annum as earnings/income of such persons is fixed for the purposes of calculations as per the procedure and structured formula given in the above Schedule.
15. The law with regard to grant of compensation in respect of cases of children stands now well settled by the Hon'ble Delhi High Court in the case of Chetan Malhotra Vs. Lala Ram & Ors., MAC App. No. 554/10, decided on 13.05.2016, wherein not only the entire existing law on the subject was discussed, but it was also laid down that such notional earnings to be presumed or taken in respect of children should also take into calculations the effect of Cost Inflation Index (CII) as well as the composite non pecuniary damages taking care of not only of the conventional heads but also the future prospects as awarded in the celebrated case of R.K. Malik Vs. Kiran Pal (2009) 14 SCC 1, which should be added to the pecuniary loss of estate calculated on the basis of said notional income in respect of death of a child in a road accident. The relevant observations made by his lordship and the formula given for calculation of compensation in case of death of a child in the above said case is as under :-
MACP No.87/14 8/18"65.Having regard to the fluctuating trends in CPI (IW), this court finds the Cost Inflation Index (CII) determined and notified by the Ministry of Finance in Government of India under Section 48 of Income Tax Act, 1961 for each financial year, to be a better method to off-set the effect of inflation on the real value of money. This approach, if followed, would ensure that there is no inconsistency in the awards of compensation in cases of death of children. [R.K.Malik (supra) and Balram Prasad v. Kumar Saha (2014) 1 SCC. Since the amount which requires to be subjected to correction was determined by decision in R.K.Malik wherein cause of action had arisen on 10.11.1997, the financial year 1997-98 is taken as the "base year".
67. In the considered view of this Court, the cases for compensation on account of death of children in motor vehicular accident cases ought to be dealt with by considering the claim towards pecuniary damages (towards loss to estate), in accordance with the age-group wise categories as in R.K.Malik (supra); the first category being of children less than 10 years‟ in age, the second category being of children more than 10 years‟ and up to 15 years‟ in age, and the third category of children more than 15 years‟ but not having attained the age of majority (18 years). The children in the third category would ordinarily be of such age group as is generally receiving formal school education or those that are (being) imparted special training so as to be equipped with requisite skills to be gainfully employed in a variety of trades. They are after all nearing adulthood and thus, on the threshold of becoming self-reliant. In such cases, the prospects of their employability and earnings in future or present, based on evidence adduced about their academic track record or training in special talents or skills, would need to be borne in mind. As in Lata Wadhwa (supra), the claim for pecuniary damages arising out of death of children of this age group cannot be at par with the lower age groups falling in the first and second category. Therefore, the pecuniary loss to estate due to their death would deserve to be worked out by applying a higher multiplier on the notional income (of non-earning persons) unless, of course, case is properly made out for higher considerations. Noticeably, in Sarla Verma (supra) the Supreme Court specified the multiplier of 18 for cases where the deceased was in the age-group of 15 years‟ to 20 years‟ old. For the first and second category, however, the multiplier of 10 and 15 respectively, as used in R.K. Malik (supra), would hold good.
68.Since in the claims arising out of death of children, generally speaking, (non-earning hands), the income is to be notionally assumed on the basis of the second schedule to the MV Act, the general practice of deduction of one-half (50%) towards personal & living expenses, as applied in case of bachelors above the age of 18 years would be unfair. Pertinently, the notional income specified for non-earning persons in the second schedule is very low as compared to the rates of minimum wages. Therefore, the deduction of one-third (1/3rd) on this account, as provided by the first note below the second schedule would only be appropriate.
69. The award of compensation must necessarily take into account non- pecuniary damages. In R.K. Malik (supra), ₹75,000/- awarded by this Court as the "conventional compensation" was enhanced by the Supreme Court by further similar amount (₹75,000/-) as the "compensation for future prospects". For the reasons set out earlier, in the context of pecuniary loss to estate, the composite sum of non- pecuniary damages of ₹1,50,000/- [as awarded in R.K. Malik (supra)] would deservedly be added, but with suitable correction so as to ensure that the deficiency in the real value of money is made good. As noted (in para 46) earlier, the Supreme MACP No.87/14 9/18 Court justified the addition of `75,000/- towards compensation for "future prospects" by noting that the said amount was "roughly half of the amount given on account of pecuniary damages". Since the court had also upheld the award of similar sum (`75,000/-) by this court as "conventional compensation", both amounts of non-pecuniary damages, put together, account for roughly an amount equivalent to the sum computed as pecuniary loss to estate. Thus, this court is of the view that a composite sum equal to the amount computed as pecuniary loss to estate may be added as non- pecuniary damages (inclusive of conventional compensation and for future prospects), in such cases as at hand to arrive at the appropriate figure of „just compensation‟.
70. It has been noticed by this Court that the tribunals have been assessing the compensation and awarding it to the last rupee, at times even in the fraction of a rupee, not bothering to follow the practice of rounding off. Awards in at least two of the cases from which the appeals at hand arise provide ready illustration. This seems to be not correct. It must be added here that human misery cannot be calculated with such mathematical precision. Even otherwise for convenience of accounting, it is desirable that the amount of award is rounded off to the nearest (if not next) thousands of rupees.
71. Subject to all other requisite conditions being fulfilled, for the foregoing reasons, in order to bring about consistency and uniformity in approach to the issue, it is held that claims for compensation on account of death of children shall be determined as follows :
(i). Till such time as the law is amended by the legislature, or the Central Government notifies the amendment to the Second Schedule in exercise of the enabling power vested in it by Section 163-A (3) of the Motor Vehicles Act, 1988, and except in cases wherein the prospects of employability and earnings (in future or present) of the deceased child are proved by cogent and irrefutable evidence, this having regard, inter alia, to the academic record or training in special talents or skills, for computing the pecuniary damages on account of the loss to estate, the notional income of non-earning persons (`15000/- p.a.) as specified in the Second Schedule (brought in force from 14.11.1994), shall be assumed to be the income of the deceased child, and taken into account after it is inflation- corrected with the help of Cost Inflation Index (CII) as notified by the Government of India from year to year under Section 48 of the Income Tax Act, 1961, by applying the formula indicated hereinafter.
(ii) For inflation-correction, the financial year of 1997- 1998 shall be treated as the "base year" and the value of the notional income relevant to the date of cause of action shall be computed in the following manner :-
[15,000/- x A ÷331 [wherein the figure of „`15,000/-‟ represents the notional income specified in the second schedule requiring inflation-correction; „A‟ represents the CII for the financial year in which the cause of action arose (i.e. the accident / death occurred); and the figure of „331‟ represents the CII for the "base year‟]
(iii). After arriving at an appropriate figure of the present equivalent value of the notional income (i.e. inflation- corrected amount), it shall be rounded off to a figure in next thousands of rupees.
(iv). The amount of notional income thus calculated shall be reduced to two-third, the deduction to the extent of one- third being towards personal & living expenses of the deceased, the balance taken as MACP No.87/14 10/18 the annual loss to estate (hereinafter also referred to as "the multiplicand").
(v). For assessment of the pecuniary damages on account of the death of children upto the age of 10 years, the loss to estate shall be calculated, capitalizing the multiplicand, by applying the multiplier of ten (10).
(vi). For children of the age-group of more than 10 years upto 15 years, the loss to estate shall be calculated by applying the multiplier of fifteen (15).
(vii). For children of the age-group of more than 15 years but less than 18 years, the loss to estate shall be calculated by applying the multiplier of eighteen (18).
(viii). After the pecuniary loss to estate has been worked out in the manner indicated above, an amount equivalent to the amount thus computed shall be added to it as the composite non-pecuniary damages taking care of not only the conventional heads but also towards future prospects as awarded in R.K. Malik v. Kiran Pal (2009) 14 SCC 1.
(ix). The final sum thus arrived at, appropriately rounded off, if so required to the nearest (if not next) thousands of rupees, shall be awarded as compensation for the death of the child.
72. The ruling in National Insurance Company Ltd. v. Farzana (2009 ACJ 2763) was rendered by a learned single Judge of this Court on 14.07.2009. Though it had built upon the dispensation in R.K.Malik (supra), given the effect of inflation elaborately discussed above, it has outlived its utility for cases relating to later years. At the same time, it must be noted, that the view in Farzana (supra) has governed the field till date, inasmuch as it has been followed by other single benches of this Court as also by tribunals in various cases. Given the modified method of calculation as is being determined by this judgment, it is possible that in some of the earlier decided cases, the compensation computed on revised lines may fall below the amount of ₹3,75,000/- computed in Farzana (supra). Since the awards in such earlier decided cases were granted with reference to the ratio in Farzana (supra), it will not be fair to order any modification in cases that relate to the period on or after 10.05.2000 (the date of cause of action in Farzana) so as to reduce the awards below the said amount of ₹3,75,000/-, particularly as some of such awards may already have been satisfied, including on account of interim orders of this Court. 73. Thus, in cases founded on cause of action arising on or after 10.05.2000, the amount of compensation shall not in any case be less than ₹3,75,000/- which was awarded in the case of National Insurance Co. Ltd. v. Farzana (2009 ACJ 2763).
16. Though, as per the averments made in the claim petition the deceased Master Aditya was aged 14 years, but as per the depositions made by the petitioner/PW1 in her affidavit Ex.PW1/A the deceased was aged around 12 years at the time of accident and he was a student of 6th class and his date of birth is 12.02.2001. A MACP No.87/14 11/18 copy of the school certificate of the deceased Master Aditya has also been filed on record by the petitioner as Mark-A and though the original thereof has not been produced in the evidence, but the above document or date of birth have not been challenged or disputed by the respondent. Even as per this document, the age of deceased at the time of accident comes to around 12 years and hence, as per the law laid down in the case of Chetan Malhotra (supra), the multiplier of '15' is applicable for calculating the loss of estate in respect of his death and 1/3rd of his notional earnings is required to be deducted towards his personal and living expenses.
17. In view of the law laid down in the case of Chetan Malhotra (supra), the annual notional earnings of the deceased Master Aditya come to Rs.38,610.27 (Rs.15000 X 852/331), which are rounded off as Rs.39,000/-. (The figure '15,000/-' represents the notional income specified in the Second Schedule requiring inflation-correction; the figure '852' represents the CII for the financial year in which the cause of action arose/accident occurred and the figure of '331' represents the CII for the base year 1997-78 as per the above judgment). After deducting 1/3rd of the above earnings towards personal and living expenses of the deceased and after applying the multiplier of 15, the pecuniary loss to estate is computed as Rs. 3,90,000/- (Rs.39,000/- X 2/3 X 15) and after adding a similar amount towards composite non-pecuniary damages, the total compensation to which the petitioner is entitled comes to Rs. 7,80,000/- (Rs. 3,90,000/- + Rs.3,90,000/-) and the same is awarded accordingly.
18. The petitioner is thus held entitled to the compensation as given in the following summary of computation in the MACP No.87/14 12/18 prescribed format:-
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN FORM IVA
1.Date of accident : 13.11.2012
2.Name of the deceased : Aditya Kumar Singh
3. Age of the deceased : 12 years
4.Occupation of the deceased : Student
5. Income of the deceased : NA
6.Name, age and relationship of legal representative of deceased:-
Srl. No. Name Age Relation
(i) Ahilya Singh @ Ahilya Devi 39 Mother
Computation of Compensation
Srl. No. Heads Amount Awarded
7. Income of the deceased (A) Rs. 39,000/- (rounded
off)
8. Add-Future Prospects (B) Nil as the compensation
has been computed as
per the structured
formula in Second
Schedule of the Act.
9. Less-Personal expenses of the 1/3rd of Rs.39,000/-
deceased (C)
10. Monthly loss of dependency N/A (see column no.8)
[(A+B) - C = D]
11 Annual loss of dependency (D x N/A (see column no.8)
12)
12 Multiplier (E) 15
13 Total loss of dependency (D x N/A (see column no.8)
12 x E = F)
14 Medical Expenses (G) N/A (see column no.8)
15 Compensation for loss of love N/A (see column no.8)
and affection (H)
16 Compensation for loss of N/A (see column no.8)
consortium (I)
17 Compensation for loss of estate Rs.3,90,000/- +
(J) Rs.3,90,000/- towards
composite non-
pecuniary damages
18 Compensation towards funeral N/A (see column no.8)
expenses (K)
MACP No.87/14 13/18
19 TOTAL COMPENSATION Rs.7,80,000/-
(F + G + H + I + J+K =L)
20 RATE OF INTEREST AWARDED 9% pa from date of filing
of petition, i.e.
07.04.2014, till deposit.
However, in terms of
the order dated
08.12.2015, the
petitioner shall not be
entitled to interest for
the suspended period
from 03.06.14 till
08.12.15.
21 Interest amount up to the date of Rs.1,73,288.22 rounded award (M) off to Rs.1,74,000/-
22 Total amount including interest Rs.9,54,000/-
(L+M) 23 Award amount released Rs.1,54,000/-
24 Award amount kept in FDRs Rs.8,00,000/-
25 Mode of disbursement of the award Through bank amount to the claimant(s) 26 Next date for compliance of award 05.06.2018
19. ISSUE No.3/RELIEF The petitioner is thus awarded a sum of Rs.9,54,000/- (Rupees Nine Lacs Fifty Four Thousand only), including interest @ 9% per annum from the date of filing of petition , i.e. 07.04.2014, till date and also interest at the same rate till notice of deposit is given to the petitioner. However, this amount does not include interest for the suspended period, i.e. from 03.06.2014 till 08.12.2015 in terms of the order dated 08.12.2015 of this tribunal, but it shall include the amount of interim award, if any, passed in favour of the petitioner.
20. RELEASE As already indicated above, out of the total awarded amount to the petitioner, an amount of Rs.8,00,000/- is directed to MACP No.87/14 14/18 be kept in 40 FDRs of Rs.20,000/- each for a period of 1 to 40 months in succession with cumulative interest. The amount of FDRs on maturity would be released in the saving bank account of the petitioner opened/to be opened near the place of her residence. The entire remaining amount over and above Rs.8,00,000/- is directed to be released to her by transferring it into her same account.
The banks 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 individual savings bank account(s) and not a joint account(s).
The original fixed deposits shall be retained by the UCO Bank, PHC, NDD in safe custody. However, the statement containing FDRs numbers, FDRs amounts, dates of maturity and maturity amounts shall be furnished by bank to the claimant(s).
The maturity amounts of the FDR(s) be credited by Electronic Clearing System (ECS) in the savings bank account opened/ to be opened by the claimant (s) near the place of her/his/their residence.
No loan, advance or withdrawal or pre-mature discharge be allowed on the fixed deposits without permission of the Court.
The concerned bank (s) 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 (s) 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.
21. LIABILITY The respondent/Insurance Co. has not proved any MACP No.87/14 15/18 violation of the terms and conditions of insurance policy. Hence, the respondent 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 petitioner 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, the respondent 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/-.
Respondent shall inform the claimant and her counsel through registered post that the cheque of the awarded amount are being deposited so as to facilitate them to collect her cheque.
22. The copy of this award be given to the parties free of cost. Ahlmad is directed to send the copy of the award to Ld. Metropolitan Magistrate concerned and Delhi Legal Services Authority in view of Judgment titled as Rajesh Tyagi Vs. Jaibir Singh & Ors. passed in FAO no.842/2003 dated 12.12.2014.
23. Further Nazir is directed to maintain the record in Form VII as per the directions given by the Hon'ble Delhi High Court in the above case on 15.12.2017.
24. The particulars of Form-V of the Modified Claims Tribunal Agreed Procedure, in terms of directions given by the Hon'ble Delhi High Court in the above case on 15.12.2017, are as under:
1. Date of the accident 13.11.2012 MACP No.87/14 16/18
2. Date of intimation of the accident by I.O. DAR not filed being a petition to the Claims Tribunal. under Section 163A of the MV Act.
3. Date of intimation of the accident by I.O.
N/A to the Insurance company.
4. Date of filing of Report u/s.173 Cr.PC Not provided before the Metropolitan Magistrate.
5. Date of filing of Details Accident Report N/A (DAR) by IO before Claims Tribunal.
6. Date of service of DAR on Insurance N/A Company
7. Date of service of DAR on claimant(s). N/A
8. Whether DAR was complete in all N/A respects?
9. If not, state deficiencies in the DAR N/A
10. Whether the police has verified the N/A documents file with DAR?
11. Whether there was any delay or deficiency on the part of the Investigating N/A Officer? If so, whether any action/direction warranted?
12. Date of appointment of the Designated N/A Officer by the Insurance Company.
13. Name, address and contact number of N/A the Designated Officer of Insurance Co.
14. Whether the Designated Officer of the Insurance Company submitted his report N/A within 30 days of the DAR?
15. Whether the Insurance Company admitted the liability? If so, whether the Designated Officer of the Insurance N/A 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 N/A Company? If so, whether any action/direction warranted?
17. Date of response of the claimant(s) of N/A the offer of the Insurance Company.
18. Date of the award 31.03.2018
19. Whether the award was passed with the No consent of the parties?
20. Whether the claimant(s) were directed to Yes open savings bank account(s) near their MACP No.87/14 17/18 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 08.02.2018 Card and the direction to the bank not issue any cheque book/debit card to claimants and make an endorsement to this effect on passbooks.
22. Date on which the claimant(s) produced the passbook of their savings bank account near the place of their residence Compliance yet to be made alongwith endorsement, PAN & Adhaar Cards?
23. Permanent Residential Address of the H. No. 141, Village Parmanandpur Claimant(s) Pukhouli, Lalganj Vais, Vaishali, Bihar.
AND H.No. 26-A, Khasra No.607, Village Rangpuri, New Delhi.
24. Details of savings bank account (s) of the claimant(s) and the address of the bank Yet to be submitted with IFSC Code.
25. Whether the claimant(s) savings bank account(s) is near his place of Yet to be submitted residence?
26. Whether the claimant(s) were examined at the time of passing of the award to Yes ascertain his/their financial condition?
25. File be consigned to Records after necessary formalities. Separate file be prepared for compliance report and for compliance of directions regarding opening of bank accounts etc. given today separately, on 05.06.2018.
Announced in the open court. (M.K.Nagpal)
on 31.03.2018 PO/MACT, New Delhi
MACP No.87/14 18/18