Delhi District Court
Mandavi Mehta & Ors. vs Raju & Ors. on 8 August, 2014
IN THE COURT OF SH AJAY KUMAR JAIN, PRESIDING OFFICER:
MOTOR ACCIDENT CLAIMS TRIBUNAL: SOUTH EAST
DISTRICT/SAKET COURTS COMPLEX/NEW DELHI
Suit No: 659/11
FIR no. 45/2011
PS Kaurali, District SAS Nagar
Mandavi Mehta & Ors. Vs Raju & Ors.
Unique Identification number: 02406C275842011
FATAL CASE
1. Smt Mandavi Mehta W/o Late Sh. Nikhil Mehta aged 31 years
2. Ms. Nikita Mehta D/o Late Sh. Nikhil Mehta aged 5 years (being
minor represented through its natural guardian/mother Mandavi
Mehta)
3. Master Yatharth Mehta S/o Late Sh. Nikhi Mehta aged 2 years (being
minor represented through its natural guardian/mother Mandavi
Mehta)
4. Sh. Ramesh Chand Mehta S/o Late Sh. Dhani Ram Mehta aged 66
years/senior citizen/ father
5. Smt Om Lata W/o Sh. Ramesh Chand/aged 56 years
All are R/o House no. A22, 1st Floor, Jangpura Ext., New Delhi14
Also at: House no. 166, 1st floor, Raju park, Main Devli Road,
Khanpur, New Delhi.
Permanent address : House no. 58/1, Mahal Behad, Tehsil Dehra,
District. Kangra (H.P)
petitioners/claimants
Suit no. 659/11, Mandavi Mehta & Ors Vs Raju & Ors (pg1/27)
Versus
1. Raju S/o Sh. Ram Lal (driver)
R/o Vill.& P.O Dheerpur, District Farrukhabad, U.P
Also at: Village Lohgarh, P.S Ambala Sadar,
District Ambala, Haryana.
2. Sh. Gurinder Singh
3. Smt. Gurmeet Kaur
Both are R/o H.No 781, Lal Dwara Colony,
Near E.S.I Hospital, Yamuna Nagar, Haryana135001
4. The New India Assurance Company Ltd.
Through its manager, Jeewan Raksha Building,
Asaf Ali Road, Delhi (Policy No. 35350331100100001165)
Date of Institution : 12.08.2011
Date of reserving judgment/order : 06.08.2014
Date of Pronouncement : 08.08.2014
JUDGMENT:
1. Present claim petition was filed u/s 166/140 Motor Vehicle Act.
2. Petitioners/claimants in the present case are Smt. Mandavi Mehta wife of deceased Nikhil Mehta, Ms. Nikita Mehta minor daughter of deceased, Master Yatharth Mehta minor son of deceased, Ramesh Chand Mehta father of deceased and Smt. Om Lata mother of deceased. Suit no. 659/11, Mandavi Mehta & Ors Vs Raju & Ors (pg2/27)
3. Brief facts of the case is that on 22.04.2011 at around 4:00am deceased Nikhil Mehta along with his family members were going to Himachal Pradesh in Maruti car bearing no. DL2CAA4099 driven by his brother Vishal Mehta when reached Aman Palace village, PS Karali, District SAS Nagar, Punjab, they found that one overloaded truck bearing no. HR58 A7997 found wrongly parked in the middle of the road without any indicator, blinking spot light or spreading stones around the truck, thus Maruti car struck the right rear corner of the offending truck, due to which deceased suffered grievous injuries and declared dead at civil hospital, Khara.
4. The FIR no. 45/2011, PS Kaurali, District SAS Nagar, Punjab was registered u/s 283/337/304A/427 IPC on the statement of Vishal Mehta driver of Maruti car. Police during investigation recorded the statement of other witnesses namely Rajni Mehta W/o Vishal Mehta, Mandvi Mehta W/o deceased Nikhil Mehta, inspected the spot prepared rough site plan then seized offending truck as well as Maruti Car, photocopy of RC permit and insurance policy, inquest report of the deceased was prepared and sent the body for postmortem, on 26.04.2011 arrested respondent no. 1 Raju. Police during investigation found sufficient evidence for preparing Challan against respondent driver Raju, hence, chargesheeted him for commission of offence u/s 283/337/304A/427 IPC.
Suit no. 659/11, Mandavi Mehta & Ors Vs Raju & Ors (pg3/27)
5. During proceedings WS filed on behalf of respondent no. 1,2 and 3. Main plea is that offending truck was parked at his own side and Maruti car driver hit it from back by driving rashly and negligently, also denied that at that time the truck was overloaded with bamboos. Respondent no. 4 (insurance company) in WS admitted that offending truck was duly insured, however, raised plea that accident cause due to rash and negligent driving of the driver of Maruti car.
6. Vide order dated 21.01.2012, an interim award of Rs. 50,000/ was passed in favour of petitioners.
7. During enquiry following issues were framed vide order dated 21.01.2012.
1. Whether the petitioner received fatal injuries in the accident which took place on 22.04.2011 at about 04.00hours involving offending vehicle i.e Truck bearing no. HR58A7997 due to rash and negligent driving of respondent no. 1, owned by respondent no. 2 and 3 and insured by respondent no. 4 (insurance company)? OPP
2. To what amount of compensation the petitioner is entitled to claim and from whom ?
3. Relief.
8. During evidence petitioner Mandvi Mehta examined herself as PW1, Suit no. 659/11, Mandavi Mehta & Ors Vs Raju & Ors (pg4/27) PW2 Anil Kumar Rai, PW3 Athar Ahmad Insurance Company examined R4W1 Sunil Kumar Varma, R4W2 Sameer Kumar Vajpaee and R4W3 Dinesh Tiwari Senior Clerk RTO, Farukabad. Driver R1W1 Raju examined himself as R1W1, R2W1 Rahees Ahmad, owner Gurinder Singh examined himself as R2W2.
9. Written arguments filed by counsel for insurance company. After, hearing the arguments of the parties and considering the material on record my issue wise was finding is as follows.
Issue no. 1 (Negligence)
10. Petitioner PW1 Mandavi Mehta in her affidavit of evidence stated that when she along with deceased and other family members reached Aman Palace, village Padiala , PS Karuali, District SAS Nagar, Punjab in maruti car driven by Vishal Mehta brother of his husband deceased Nikhil Mehta, they found the offending truck standing in the middle of the road without any indicator etc. and despite efforts driver Vishal Mehta of Maruti Car enable to avoid the accident thus hit truck on the right rear side. In cross examination deposed that it is correct that the offending truck was stationed when accident took place, also stated that it was not in the exactly in the middle of the road and some vehicles from opposite directions were coming negotiating space left by the truck. She further stated the accident took place during wee hrs and there was no sunlight. Suit no. 659/11, Mandavi Mehta & Ors Vs Raju & Ors (pg5/27) She further stated that Vishal Mehta has seen the truck, however, felt that it was moving and collided the rear side of the truck, but denied the suggestion that accident caused due to negligence of Vishal Mehta (brother of deceased). In cross examination on behalf of the Insurance Company she denied suggestion that truck was standing on the side of the road having indicators on and also denied suggestions that car was being driven in very high speed.
11. Driver Raju (R1W1) is affidavit of evidence stated that on 21.04.2011 when he was driving truck from Ambala to Ropar for loading routine consignment of Ambuja Cement at around 07.00pm, some mechanical break down took place, thereafter informed the owner Gurinder Singh who sent mechanic Rahees (R2W1) at the place of break down and they pushed the truck towards the kucha portion as highway police was raising objections. On 22.04.2011 at around 4:15am a car having seven passengers hit a truck from behind, and accident did not occur due to his negligence as truck was safety parked in kucha portion but accident occur due to rash and negligence driving car driver which was overloaded carrying seven passengers. In cross examination stated that he was not arrested by police, however, stated that he was facing trial u/s 279/304A IPC Act, District court Ropar denied suggestion that he parked the truck in the middle of the road.
Suit no. 659/11, Mandavi Mehta & Ors Vs Raju & Ors (pg6/27)
12. Rahees Ahmad (R2W1) deposed the he was working as a mechanic at a workshop of motor market Ambala, and on receiving a telephone call from Gurinder Singh reached on spot and shifted the truck aside on the direction of highway police, and found that truck was in the need of some wielding work which was not possible at the spot at that time. After accident also he reached the spot and found one Maruti Car has rammed into the standing truck from behind and some police personnel were also present at the spot and repaired the truck around 09.00am.
13. In cross examination, R2W1 stated that he do not have any degree or diploma of mechanic but denied the suggestion that he is not auto mechanic, also stated that reached the spot at around 8:30/9:00pm in the night and found central shaft of the offending truck in broken condition. He further stated that there were no divider on the road and truck was lying stationary, and was standing on the side having 2 tyres on the road and 2 tyres on the kucha.
14. From the testimony of PW1, R2W1 and R1W1 there is no dispute over the fact that offending truck was stationary at the time of accident.
15. Ld. counsel for insurance company raised the plea that PW1 Mandavi Mehta stated in her affidavit in evidence that truck was standing in stationary condition in the middle of the road but in cross examination Suit no. 659/11, Mandavi Mehta & Ors Vs Raju & Ors (pg7/27) stated that it was not in the middle of the road. Raju (R1W1) driver stated that when break down took place it was on the road, however, later on it was moved in the kucha portion with the help of Rahees Ahmad (R2W1) and other people as highway police was raising objections. R2W1 also stated that in his affidavit of evidence that after reaching the spot pushed the truck towards Kacha portion, but in cross examination stated that when he reached at spot found the truck having 2 tyres on the road and 2 tyres on kucha, which is in contradiction to the statement of driver who stated that with the help of the Rahees Ahmad and others it was taken to the kucha road, from cross examination of R2W1 it cannot be inferred that he has made some efforts to put the truck from middle to the kucha side, but it appears that truck was having 2 tyres on the road and 2 tyres on kucha side.
16. Petitioner PW1 also contradicted herself, as in her affidavit of evidence stated that truck was in middle of the road but in cross examination stated that it was not exactly in the middle. Thus, from testimony of these witnesses, it can be inferred that truck was on the road though on the left side, but it cannot be inferred that it was altogether on kucha side. Respondent raised plea that due to the objections by highway police they parked it towards kucha side, but this plea was not taken by the respondents in their pleadings, further chargesheet was filed against the driver Raju but he has not made any complaint against the police which Suit no. 659/11, Mandavi Mehta & Ors Vs Raju & Ors (pg8/27) chargesheeted him, after finding him accused of rash and negligent parking.
17. Accident took place at around 4 am, there is darkness at that time and the place of accident is a highway. The standing of a truck on a highway at night time is in itself a rash and negligence act as there is always a risk of accident. There is no clear evidence that driver took all safe measures while parking. Further, it is unlikely if a person driving a car on the road and a truck is standing on a kucha then it will hit the truck, this circumstances itself shows that accident could not take place on the kucha side, however, it took place on the road itself, inconsistency pointed out in statement of PW1 is not material on appreciating overall facts and circumstances. Above all petitioner's case is supported by police investigation, police during investigation also found respondent no. 1 accused of rash and negligence driving.
18. To determine the negligence of the driver of the offending vehicle, I am being guided by the judgment of Hon'ble High Court in case titled "Basant Kaur & Ors Vs. Chattar Pal Singh and Ors" [2003 ACJ 369 MP (DB)], wherein it has been held that registration of a criminal case against the driver of the offending vehicle is enough to record the finding that the driver of offending vehicle is responsible for causing the accident. Suit no. 659/11, Mandavi Mehta & Ors Vs Raju & Ors (pg9/27) Further it has been held in catena of cases that the proceedings under the Motor Vehicles Act are not akin to the proceedings as in civil suit and hence strict rules of evidence are not required to be followed in this regard. I am also being guided by the judgment of Hon'ble High Court of Delhi in "National Company Limited Vs. Pushpa Rana" (2009 ACJ
287), wherein it was held that in case the petitioner files the certified copy of the criminal record or the criminal record showing the completion of the investigation by the police or the issuance of charge sheet under Section 279/304 A IPC or the certified copy of the FIR or in addition the recovery memo or the mechanical inspection report of the offending vehicle, these documents are sufficient proof to reach to the conclusion that the driver was negligent. It is also settled law that the term rashness and negligence has to be constructed lightly while making a decision on a petition for claim for the same as compared to the word rashness and negligence as finds mention in the Indian Penal Code. This is because the chapter in the Motor Vehicle Act dealing with compensation is a benevolent legislation and not a penal one. Further, in case titled NIC Vs Varshben Bharat Bhai Gohil & Ors 2013 ACJ 2150 (Guj DB), even in case of stationary truck, factum of negligence was attributed to its driver.
19. From over all facts and circumstances it is clear that the accident caused Suit no. 659/11, Mandavi Mehta & Ors Vs Raju & Ors (pg10/27) at around 04.00am when it is dark and truck was found standing on highway, this act itself is rash and negligent act, thus petitioner able to prove that accident caused due to rash and negligence act of R1. Accordingly issue number 1 is decided in favour of petitioner and against respondents.
Issue no. 2 Compensation:
20. Apex Court in Sarla Verma Vs. DTC (AIR 2009 SC 3104) comprehensively dealt with the relevant principals relating to the assessment of compensation in death cases. Apex Court in this case observed that in fatal accident, the measure of damage is pecuniary loss suffered or likely to be suffered by each dependent as a result of death, and basically only three facts need to be established by the claimants for assessing compensation in case of death: (a) age of the deceased or claimant whichever is higher, (b) income of the deceased and (c) number of dependents.
21. Age of deceased Nikhil Mehta: As per secondary school certificate(Ex. PW1/7) deceased Nikhil Mehta is found to be born on 26.02.1972, hence he is around 39 years of age on the date of accident i.e 22.04.2011, thus applicable multiplier according to Sarla Verma case is 15. Suit no. 659/11, Mandavi Mehta & Ors Vs Raju & Ors (pg11/27)
22. Income: PW1 Mandavi Mehta in her affidavit of evidence stated that deceased was science graduate, also completed advanced diplomas in software applications with good academic record having distinction in software courses. PW1 for proving the qualifications exhibited the educational and professional certificates vide (Ex. PW1/7 colly) including B.Sc degree, certificate issued by Tata Infotec for completing advanced diploma in software applications with distinction marks, certificate of computing issued from IGNOU, certificate issued from DOEACC society for completion of Alevel course in computer education, certificate issued from Nagpur University showing that the deceased was member of table tennis team. PW1 further deposed that deceased joined Iterate India Private Limited on 24.03.2003 as a programmer at the salary of 7808/, thereafter joined Multiple Zones India Private Limited as system executive on 18.11.2003 at a pay package of Rs. 1,20,048/ per annum then promoted as Associate Project Manager on 01.07.2004 with increase salary of Rs. 2,28,000/ per annum, thereafter the salary of the deceased kept on increasing and an appraisal letter dated 11.06.2007 was also issued to the deceased, thereafter promoted to Project Manager with increase salary of Rs. 6,90,000/ per annum (for proving the same petitioner relied upon Ex. PW1/8 to Ex.PW1/17).
23. PW1 further stated that vide appointment letter at 01.04.2010, petitioner was appointed on deputation in virtual soft systems limited with salary of Suit no. 659/11, Mandavi Mehta & Ors Vs Raju & Ors (pg12/27) Rs. 72,000/per month (including basic pay+HRA+ conveyance allowance +special allowance) which increased to Rs. 80,000/ per month, to substantiate income of the deceased, petitioners examined PW2 Anil Kumar who proved that deceased work with Multiple Zones India Limited. PW3 Athar Ahmad, Manager finance & account of virtual soft limited stated that they have revised the salary to Rs. 80,000/ per month from October, 2010, exhibited bank statement and form 16 of the deceased from the period of June 2010 to 31.03.2011 (PW3/D1). As per form 16 the petitioner annual salary is Rs. 9,36,000/ per annum (including HRA of Rs. 2,43,840/ and Rs. 9600/ conveyance allowance), out of which Rs. 48,937/ was deducted as income tax, therefore net annual income of the deceased comes to Rs. 887063/.
24. Apex court in "National Insurance company Ltd. Vs. Indira Srivastava {AIR 2008 SC 845}" held that the benefits including insurance of medical policy for self and family, education scholarship beneficial to the family members is to be taken into consideration. It is held that basis of considering the entire pay packet is what dependents have lost in view of the death of the deceased. Apex court in "Sunil Sharma Vs. Bachetar Singh (II{2011}ACC 552{SC})" held that HRA, CCA , PPF, GIS and medical allowances is to be taken as income of the deceased for computation of compensation, therefore plea of ld. Counsel for insurance company that except basic salary and HRA, no other allowance could be Suit no. 659/11, Mandavi Mehta & Ors Vs Raju & Ors (pg13/27) taken into consideration has no force of law. Hon'ble Delhi High Court in case titled "Vishakha Vs Shree Pal MANU/DE 1684/2012" held that conveyance allowance paid as a part of salary, hence same has to be taken into consideration for computation of loss of dependency, therefore, the total gross salary is to be taken into consideration for assessing income of the deceased at the time of accident. Apex court in case titled Shyamwati Sharma Vs Karam Singh 2010 ACJ 1968 SC held that any deduction towards GPF, LIC, repayment of loan etc should not be excluded from the income and only income tax surcharge is liable to the deducted. Therefore, HRA and conveyance allowance are not liable to be deducted from income of deceased and regarded as part of income, only tax of Rs. 48,937/ is liable to be deducted.
25. PW3 in cross examination pointed out the payment of salary made to the deceased through statement of account. Ld. Counsel for insurance company raised objection that form 16 could not be taken into consideration because it was filed after the death of deceased. It is worth to be noticed that deceased died on 22.04.2011 and the form16 was filed for the period of 01.04.2010 to 31.03.2011. It is natural that it will be filed after the death of the deceased, besides this petitioner has filed the ample documents including statement of accounts, salary receipts, appointment letters etc, proving the long service record of the deceased. Hence the Suit no. 659/11, Mandavi Mehta & Ors Vs Raju & Ors (pg14/27) net annual income of the deceased Nikhil Mehta is assessed Rs. 8,87,063/ per annum.
26. Dependents: PW1 in cross examination stated that her fatherinlaw (petitioner no.4) is retired DGM from Airport Authority & her motherin law is a housewife. In these facts and circumstances petitioner alongwith two minor children i.e petitioner no. 2 & 3 alongwith petitioner no.5 (mother of the deceased) is found to dependent upon the deceased. Thus, total number of dependents on the deceased are found to be four at the time of accident.
27. Deduction personal and living expenses: Deceased was having four dependents at the time of accident, in view of Sarla Verma Case, 1/4 of the income is to be deducted towards deduction on personal and living expenses.
28. Future prospects: Deceased aged around 39 years at the time of accident found working as a computer professional and his salary got increased from 8,000/ to 80,000/ within eight years, thus falls in the category of permanent employee, hence petitioners entitled for 50% increase towards future prospects (relied upon Sarla Verma case (supra), Suit no. 659/11, Mandavi Mehta & Ors Vs Raju & Ors (pg15/27) Rajesh & Ors. Vs. Rajbir Singh 2013 (6) SCALE 563, Puskar Mehra Vs. Brij Mohan Kushwaha & Ors 2013 (14) SCALE 26, ICICI Lombard General Insurance Co. Vs. Angrej Singh & Ors. MAC. Appeal 846/2011 dated 30/09/2013 (Delhi High Court)).
29. Loss of dependency:
Rs. (8,87,063+8,87,063X50%)X3/4X15=Rs 1,49,69,188/.
30. Hon'ble apex court in case titled 'Rajesh & Ors. Vs. Rajbir Singh & ors. 2013(6) SCALE 563", directed Tribunals that irrespective of the claims made in the application, the Tribunals are required to award compensation which should be just equitable and reasonable. In this regard, the Hon'ble apex court revisited the amount of compensation under conventional heads of loss of consortium , loss of love and affection and funeral expenses. Apex court in para no. 20 & 21 held as under:
31. "The ratio of a decision of this Court, on a legal issue is a precedent. But an observation made by this Court, mainly to achieve uniformity and consistency on a socioeconomic issue, as contrasted from a legal principle, though a precedent, can be, and in fact ought to be periodically revisited, as observed in Santosh Devi (Supra). We may, therefore, revisit the practice of awarding compensation under conventional heads: loss of Suit no. 659/11, Mandavi Mehta & Ors Vs Raju & Ors (pg16/27) consortium to the spouse, loss of love , care and guidance to children and funeral expense. It may be noted that the sum of Rs. 2,500/ to Rs. 10,000/ in those heads was fixed several decades ago and having regard to inflation factor, the same needs to be increased. In Sarla Verma's case (Supra), it was held that compensation for loss of consortium should be in the range of Rs. 5000/ to Rs. 10,000/. In Legal parlance, 'consortium' is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. That nonpecuniary head of damage has not been properly understood by our Courts. The loss of companionship, love, care and protection, etc., the spouse is entitled to get, has to be compensated appropriately. The concept of nonpecuniary damage for loss of consortium is one of the major heads of award of compensation in other parts of the world more particularly in the United States of America, Australia, etc. English Courts have also recognized the right of a spouse to get compensation even during the period of temporary disablement. By loss of consortium, the courts have made an attempt to compensate the loss of spouse's affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Suit no. 659/11, Mandavi Mehta & Ors Vs Raju & Ors (pg17/27) Hence, we are of the view that it would only be just and reasonable that the courts award at least rupees one lakh for loss of consortium.
32. We may also take judicial notice of the fact that the Tribunals have been quite frugal with regard to award of compensation under the head of 'funeral Expenses'. The 'Price Index', it is a fact has gone up in that regard also. The head 'Funeral Expenses' does not mean the fee paid in the crematorium or fee paid for the use of space in the cemetery. There are many other expenses in connection with funeral and if the deceased is follower of any particular religion, there are several religious practices and conventions pursuant to death in a family. All those are quite expensive. Therefore, we are of the view that it will be just, fair and equitable, under the head of 'Funeral Expenses', in the absence of evidence to the contrary for higher expenses, to award at least an amount of Rs. 25,000/.
33. Funeral Expenses: PW 1 in her affidavit of evidence stated that they have spent around Rs. 40,000/ under present head however not filed any documentary evidence in this regard but considering the facts and circumstances of the present case and the mandate of the above judgment, a sum of Rs. 25,000/ is granted towards funeral expenses. Suit no. 659/11, Mandavi Mehta & Ors Vs Raju & Ors (pg18/27)
34. Loss of love and affection: In present case , deceased was survived with a widow wife and two minor children age around 2 years and 5 years and old aged parents, thus total sum of Rs.2,00,000/is granted to petitioners towards love and affection.
35. Loss of Consortium: Considering the facts and circumstances of the present case and the mandate of the above judgment, a sum of Rs. 1,00,000/ is granted to wife towards loss of consortium.
36. Loss of Estate: The petitioners are also entitled for loss of estate in respect of death of the deceased. Accordingly, an amount of 10,000/ is passed in favour of the petitioners towards loss of estate.
37. The total compensation is assessed as under: S.No. Description Amount 1 Loss of Dependency Rs 1,49,69,188/ 2 Loss of Love & Affection Rs. 2,00,000 / 3 Loss of consortium Rs. 1,00,000/ 4 Funeral expenses Rs. 25,000/ 5 Loss of Estate Rs. 10,000/ Total Rs. 1,53,04,188/ Less Interim Award Rs. 50,000/ Suit no. 659/11, Mandavi Mehta & Ors Vs Raju & Ors (pg19/27) Net Total Rs. 1,52,54,188/
38. Hence, the petitioners are awarded a total amount of Rs. 1,52,54,188/ (Rupees One crore fifty two lacs fifty four thousand one hundred eighty eight only).
RELIEF:
39. I hereby award an amount of (Rupees One crore fifty two lacs fifty four thousand one hundred eighty eight only) compensation with interest @ 9% per annum, from the date of filing the present petition, i.e., till the date of realization of the amount, in favour of the petitioners and against the respondents on account of their liability being joint and several.
40. The driver R1 is the principal tort feasor whereas R2 and R3 being the owner vicariously liable for the acts of the R1 and R4 being insurance company liable to indemnify the owner.
41. Liability:Main plea of the insurance company is that driver Raju was holding fake licence, therefore, insurance company is not liable to pay any compensation. R4W1 Sunil Kumar Verma, Administrative Officer of the insurance company deposed that their investigator Sh Samir Kumar Suit no. 659/11, Mandavi Mehta & Ors Vs Raju & Ors (pg20/27) Vajpai (R4W2) received a report issued from licencing authority, Farrukhabad mentioning therein that licence was never issued by the authority, but insurance company also examined R4W3 Dinesh Tiwari, Junior Clerk ,RTO Farrukhabad, who deposed that the licence was issued in the name of Raju (R1) from 29.08.2005 to 28.08.2025 for motorcycle and LMV (private) and there was subsequent endorsement of TVT (Transport vehicle) valid from 28.05.2008 to 27.05.2011, thus from his testimony, it is clear that R1 was holding valid and effective licence for driving offending truck on the date of accident i.e 22.04.2011.
42. R4W3 also stated that R1 has not paid a licence fee of Rs. 80/, therefore said licence could not be held to be valid. This witness categorically stated that endorsement for driving transport vehicle was made by their office on the licence of R1 but licence not valid as fees of Rs. 80/ was not found deposited. However, licence can not be found to be invalid on this ground because it is the duty of RTO office to check the factum of deposit of licence fee before making endorsement over the licence. Furthermore, it is the duty of the RTO office to make entry of fees in their register and in case , if there is no entry, driver is not responsible for the same, driver was driving the vehicle on the valid endorsement made by the RTO office on his licence.
43. It is not the case of RTO that the endorsement was forged by the driver Suit no. 659/11, Mandavi Mehta & Ors Vs Raju & Ors (pg21/27) himself. Endorsement was duly admitted by the RTO office , therefore it can not be held that driver was not holding valid licence on the date of accident.
44. Furthermore, to avoid liability insurance company has to prove willful breach on the part of owner, once licence was found to be having valid endorsement for driving the offending vehicle, no inference of willful breach can be drawn against the owner {for this proposition relied upon NIC Vs Swarn Singh 2004 ACJ 1 (SC), Skandia Insurance Company Ltd Vs Kokilaben Chandravadan 1987 ACJ 411 (SC) and United India Insurance Company Limited Vs Lehru 2003 ACJ 611 (SC)}. Insurance company not able to prove its defence and liable to indemnify the owner.
45. In view of the above discussion, the insurance company is directed to discharge the liability of the award amount within a period of 30 days from today alongwith the interest @ 9% per annum, failing which interest @ 12% per annum shall be charged for the period of delay. Release of awarded amount:
46. Share of petitioner no.1 (Smt. Mandavi Mehta wife of the deceased Nikhil Mehta): A sum of Rs. 52,54,188// alongwith proportionate interest thereon, is awarded to the petitioner no.1 being wife of the Suit no. 659/11, Mandavi Mehta & Ors Vs Raju & Ors (pg22/27) deceased. Out of this amount, Rs. 2,54,188/alongwith proportionate interest be immediately released to the petitioner no.1 on realization. And for balance amount of Rs. 50 lacs alongwith proportionate interest thereon be kept in form of FDR in the following phased manner :
1.Rs. 5 lacs for a period of 1 year
2. Rs. 5 lacs for a period of 2 years
3. Rs. 5 lacs for a period of 3 years
4. Rs. 5 lacs for a period of 4 years
5. Rs. 5 lacs for a period of 5 years
6. Rs. 5 lacs for a period of 6 years
7. Rs. 5 lacs for a period of 7 years
8. Rs. 5 lacs for a period of 8 years
9. Rs. 5 lacs for a period of 9 years
10. Rs. 5 lacs for a period of 10 years
47. In the share of petitioner no. 2, (Nikita Mehta daughter of the deceased Nikhil Mehta): A sum of Rs. 35 lacs alongwith proportionate interest is awarded to the petitioner no.2 which is to be kept in form of FDR till she attain the age of 21 years.
48. In the share of petitioner no. 3 (Master Yatharth Mehta son of the deceased Nikhil Mehta): A sum of Rs. 50 lacs alongwith proportionate interest is awarded to the petitioner no.3 which is to be kept in form of Suit no. 659/11, Mandavi Mehta & Ors Vs Raju & Ors (pg23/27) FDR till he attain the age of 21 years.
49. In the share of petitioner no. 4 (Sh. Ramesh Chand Mehta father of the deceased Nikhil Mehta): A sum of Rs. Two lacs alongwith proportionate interest is awarded to the petitioner no.4 which is to be kept in form of FDR in the following phased manner :
1. Rs.2 lac for a period of 1 year
50. In the share of petitioner no. 5 (Sh. Om Lata mother of the deceased Nikhil Mehta): A sum of Rs. 13 lacs alongwith proportionate interest is awarded to the petitioner no.5 which is to be kept in form of FDR in the following phased manner :
1. Rs. 4 lacs for a period of 1 year
2. Rs. 4 lacs for a period of 2 years
3. Rs. 5 lacs for a period of 3 years
51. Deposition of awarded amount with STATE BANK OF INDIA, Saket Court Branch, New Delhi
52. In terms of the directions given by Hon'ble High Court in case titled "Rajesh Tyagi Vs. Jaibir Singh and Ors." bearing FAO number 842/2003 decided on 08.06.2009, UCO Bank/State Bank of India has Suit no. 659/11, Mandavi Mehta & Ors Vs Raju & Ors (pg24/27) agreed to open a Special Fixed Deposit Account for the victims of road accidents.
53. As per orders of Hon'ble High Court in case titled " New India Assurance Co. Ltd. Vs. Ganga Devi & ors. Bearing MAC. App. 135/2008" as well as in another case titled as "Union of India Vs. Nanisiri" bearing MAC Appeal No. 682/2005 dated 13.01.2010, directions were given to the Claims Tribunal to deposit part of the awarded amount in fixed deposit in a phased manner depending upon the financial status and financial needs of the claimants.
54. In consonance to the idea by which part of the awarded amount is ordered to be kept in fixed deposit/ savings account by Hon'ble High Court, insurance company is directed to deposit the awarded amount in favour of the petitioners with State Bank of India, Saket Courts Complex Branch, against account of petitioners. Within a period of 30 days from today, failing which respondent no.4 Insurance company shall be liable to pay future interest @ 12% per annum till realization (for the delayed period).
55. Upon the aforesaid amount being deposited, the State Bank of India, Saket Court Complex, New Delhi, is directed to keep the awarded amount in the "Fixed deposit/saving account" in the following manner:
Suit no. 659/11, Mandavi Mehta & Ors Vs Raju & Ors (pg25/27)
(i) The interest on the fixed deposit be paid to the petitioner/ claimant by Automatic Credit of interest of their saving bank accounts with State Bank of India, Saket Court Branch, New Delhi.
(ii) Withdrawal from the aforesaid account shall be permitted to claimant/ petitioner after due verification and the Bank shall issue photo identity Card to claimant/ petitioner to facilitate identity.
(iii) No cheque book be issued to claimant/ petitioner without the permission of this Court.
(iv) The original fixed deposit receipts shall be retained by the Bank in safe custody. However, the original pass Book shall be given to the claimant/ petitioner alongwith photocopy of the FDR's.
(v) The original fixed deposit receipts shall be handed over to claimant/ petitioner at the end of the fixed deposit period.
(vi) No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the permission of this Court.
(vii) Half yearly statement of account be filed by the Bank in this court.
(viii) On the request of claimant/ petitioner, the Bank shall transfer the Savings Account to any other branch of State Bank of India, according to their convenience.
(ix) Claimant/ petitioner shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit Account to Branch Manager, state Bank of India, Saket Courts Complex Branch, Suit no. 659/11, Mandavi Mehta & Ors Vs Raju & Ors (pg26/27) New Delhi.
56. Directions for the respondent No. 4/Insurance company: The Respondents4 is directed to file the compliance report of their having deposited the awarded amount with the State Bank of India, Saket Court Branch in this tribunal within a period of 30 days from today.
57. The Respondent no. 4 shall intimate to the claimants/ petitioners about it having deposited the cheques in favour of petitioners in terms of the award, at the address of the petitioners mentioned at the title of the award, so as to facilitate them to withdraw the same.
58. Copy of the order be given dasti to all the parties.
59. Put up the matter for compliance on 12.09.2014.
Announced in the Open court on 08.08.2014 (Ajay Kumar Jain) POMACT02 (South East District) Saket Courts, New Delhi/08.08.2014 Suit no. 659/11, Mandavi Mehta & Ors Vs Raju & Ors (pg27/27)