Delhi District Court
Hc Melki & Ors. vs . Yogesh Yadav & on 19 December, 2022
IN THE COURT OF MS. SHEFALI BARNALA TANDON
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS
TRIBUNAL, PATIALA HOUSE COURTS, NEW DELHI
IN THE MATTER OF:
HC Melki & Ors. VS. YOGESH YADAV &
ORS.
DAR NO. 541/17
1. Smt. HC Melki
W/o Sh. T.T. Zahmo
2. Sh. T.T. Zahmo
S/o Sh. T. Abela
3. Sh. Jacab T. Thapa
S/o Sh. T.T. Zahmo
4. Ms. Hillary
S/o Sh. T.T. Zahmo
5. Ms. TT Dorothy Jim
S/o Sh. T.T. Zahmo
All R/o 86, ECM Veng, PO Saiha,
ECM Veng, Saihatlang, Saiha,
Mizoram-796901.
......Petitioners/claimants being
LRs of deceased Ms. TT Jesslelyn
Versus
1. Sh. Yogesh Yadav (Driver of the offending vehicle)
S/o Sh. Mahavir Singh
R/o 1559, Atta Mohalla Near RD City,
Wazirabad, Gurgaon, Haryana.
DAR NO. 541/17 Page 1 of 25
2. Sh. Hardev Singh (Owner of the offending vehicle)
S/o Sh. Lakhbir Singh
R/o Plot No. 8, Holy Enclave Phase -1,
Amritsar, Punjab.
3. M/s New India Assurance Co. Ltd. (Insurer)
Through its Manager,
2/A, Jeevan Raksha Building,
Asaf Ali Road, New Delhi.
.....Respondents
Date of filing of DAR : 07.06.2017
Date of framing of issues : 13.09.2017
Date of concluding arguments : 26.11.2022
Date of decision : 19.12.2022
AWARD/JUDGMENT
1. The claim for compensation in the present Detailed Accident Report (DAR) relates to fatal injuries suffered by deceased Ms. TT Jesslelyn in a road accident that took place on 01.11.2016, at about 2 am, Near SP Marg, MTC T point at Gyarah Murti, New Delhi, regarding which an FIR bearing no.192/2016, under Sections 279/337/304-A IPC was registered at PS Chanakyapuri. The offending vehicle involved in this case is a car bearing registration no. PB-02CN-8474, which at the relevant time of accident was being driven by respondent no. 1, owned by respondent no.2 and insured with respondent no. 3.
2. As per DAR, briefly stated, is that on the aforesaid date, time and place of accident, the deceased along with her friends were proceeding from Tagore Garden to India Gate via Sardar Patel Marg in a car bearing registration No. PB-02CN-8474 which was being driven by respondent no. 1 in a rash and DAR NO. 541/17 Page 2 of 25 negligent manner. All the occupants of car requested the respondent no. 1 not to drive the car in rash and negligent manner, but the respondent no. 1 did not pay any heed to their request. When they reached at T Point of Gyarah Murti, S.P. Marg, the respondent no. 1 took a sharp left turn at a fast speed due to which the car struck against the divider of the road and went other side of the road and turned turtle. It is further stated that the deceased succumbed to her injuries in Apollo Hospital during the course of her treatment.
3. R-1 has filed his written statement to the DAR wherein it is stated that the respondent no. 1 was having a valid and effective driving license at the time of accident. It is further stated that the petitioners in collusion with the police officials have falsely implicated the respondent no. 1 in the present matter. It is further stated that the offending vehicle stood insured with respondent no. 3/New India Assurance Co. Ltd. w.e.f. 30.01.2016 to 29.01.2017.
4. Respondent no. 2 has not filed his written statement to the DAR.
5. The respondent no. 3/Insurance Company had filed written statement wherein it is admitted that the offending vehicle was insured with them in the name of respondent no. 2 w.e.f. 30.01.2016 to 29.01.2017 and the liability of Insurance Company is subject to the terms and conditions of the insurance policy. It is further stated that the driver was having learner's license at the time of accident and as per condition of learner license under Rule 3 of CMV Rules DAR NO. 541/17 Page 3 of 25 1989 which prohibits him from driving any motor vehicle unless he has besides him a person duly licensed to drive the vehicle and vehicle carries "L" plates both in front and in rear of the vehicle. It is further stated that the police had seized the offending vehicle which do not have "L" plates both in front and in rear of the offending vehicle and hence, there is violation of Rule 3 of the CMV Rules, 1989 and the Insurance Company is not liable to pay any compensation to the petitioners.
6. It is pertinent to mention that two connected DARs bearing Nos. D-538/17 and D-541/17 arose out of the same accident and vide order dated 13.09.2017, they were consolidated for the purpose of trial and decision and DAR bearing No. D- 538/17 was directed to be treated as lead case wherein the evidence shall be recorded. On the same day, the following consolidated issues were framed by the Ld. Predecessor of the tribunal as :-
1. Whether the injured Ms. C. Malsawamsangi sustained injuries and the deceased Ms. T.T. Jesslelyn suffered fatal injuries in the accident which occurred on 01.11.2016, at about 2 am, at SP Marg, MTC T Point, at 11 Murti, New Delhi caused by rash and negligent driving of vehicle No. PB-02CN-8474 being driven by respondent no.1, owned by respondent no. 2 and insured with respondent no. 3 ? OPP.
2. Whether the petitioners are entitled for compensation? If so, to what amount and from whom?DAR NO. 541/17 Page 4 of 25
3. Relief.
7. The Tribunal heard arguments advanced by Sh. D.S. Mehta, Ld. Counsel for petitioners and Sh. Rajesh Jagirdar, Advocate for respondent no.3/Insurance Company. The case record has also been perused, including the written final arguments as well as case laws.
8. The finding on the aforesaid issues is reproduced in succeeding paragraphs hereinafter.
ISSUE No. 1Whether the injured Ms. C. Malsawamsangi sustained injuries and the deceased Ms. T.T. Jesslelyn suffered fatal injuries in the accident which occurred on 01.11.2016, at about 2 am, at SP Marg, MTC T Point, at 11 Murti, New Delhi caused by rash and negligent driving of vehicle No. PB-02CN-8474 being driven by respondent no.1, owned by respondent no. 2 and insured with respondent no. 3 ? OPP.
The onus to prove this issue was upon the petitioner. In order to prove negligence of respondent no. 1, the petitioners have examined an eye witness Ms. C. Malsawmsangi @ Mami as PW-2 who has filed her evidence by way of affidavit as Ex. PW- 2/A wherein she has narrated the mode and manner of accident.
During cross-examination, PW2 deposed that she was sitting on the middle of rear seat in the offending vehicle at the time of accident, which was being driven by respondent no. 1. She further deposed that she does not know whether there was DAR NO. 541/17 Page 5 of 25 any sticker of 'learner' in the front or rear glass of the offending vehicle. She denied the suggestion that the respondent no. 1 was not driving the offending vehicle rashly and negligently.
9. It can be said that during her cross examination, nothing material could be extracted out from her testimony which can make this tribunal to disbelieve or discard her testimony. The testimony of PW2 is duly corroborated by the DAR filed by the IO. Moreover, it has not been disputed that R1 stands already chargesheeted in the above criminal case for offences punishable under Sections 279/337/304A IPC for his rash and negligent driving of the above said vehicle and the same in itself is a strong circumstance to corroborate the testimony of PW2 on above aspects.
10. Pertinently, Respondent no. 1 himself was the best witness who could have stepped into the witness box to rebut his involvement in the aforesaid accident, which he has failed to do. Therefore, an adverse inference is drawn against the respondent no. 1/driver in terms of judgment of Hon'ble High Court of Delhi passed in the case of Cholamandalam M.S. General Insurance Company Ltd. Vs. Kamlesh, reported in 2009 (3) AD (Delhi)
310.
11. It is well settled that the procedure followed for proceedings conducted by an accident tribunal is similar to that followed by a civil court and in civil matters, the facts are required to be established on preponderance of probabilities and not beyond reasonable doubt, as are required in a criminal prosecution. Reference in this regard is made to the judgment of DAR NO. 541/17 Page 6 of 25 Hon'ble Apex Court reported as (2009) 13 SC 530 in Bimla Devi and others Vs. Himachal Road Transport Corporation and others, wherein it has been observed :-
"......Strict proof of an accident caused by a particular vehicle in a particular manner may not be possible to be done by the claimants and the claimants were merely to establish their case on the touchstone of preponderance of probability."
12. Reliance has been placed upon the judgment of the Hon'ble Apex Court in Mangla Ram Vs. Oriental Insurance Co. Ltd. & Ors., 2018 Law Suit (SC) 303 has observed that ".........Filing of charge sheet against the driver prima facie points towards his complicity in driving the vehicle negligently and rashly. It has been further observed that even when the accused were to be acquitted in the criminal case, the same may be of no effect on the assessment of the liability required in respect of motor accident cases by the Tribunal."
13. In view of foregoing discussion, this issue is duly substantiated by the documentary evidence i.e. chargesheet and thus, it stands proved on preponderance of probabilities that the aforesaid accident took place due to rash and negligent driving of the offending vehicle bearing no. PB-02CN-8474 which was being driven by respondent no. 1, owned by respondent no. 2 and insured with respondent no. 3 at the relevant time of accident. Hence, this issue is decided in favour of the petitioner and against the respondents.
ISSUE NO.2 Whether the petitioners are entitled for compensation? If so, to what amount and from whom?
DAR NO. 541/17 Page 7 of 2514. As rashness and negligence on part of driver of the offending vehicle/respondent no. 1 has been proved, the petitioners have become entitled to compensation for death of their family member in the said accident, but the computation of compensation and liability to pay the same are required to be decided. The compensation to which the petitioners are entitled shall be under the heads as discussed hereinafter.
(I) Medical or Treatment Expenses
15. PW1 Ms HC Melki, i.e. mother of deceased has tendered her evidence by way of affidavit Ex. PW1/A wherein she deposed that her deceased daughter had suffered several head injury with hydrocephalus and sepsis, Rt frontal compound depressed skull fracture with underlying contusion. She further deposed that her deceased daughter succumbed to her injuries on 25.03.2017 during the course of her treatment in Apollo Hospital. PW1 has tendered on record calculation sheet along with medical bills of her deceased daughter amounting to Rs. 22,81,506/-. During cross examination, PW1 denied the suggestion that the medical bills have no connection with the injuries suffered by the deceased in the accident and the medical bills are not genuine.
In order to prove the same, the petitioners have examined on record Sh. Devanand Sharma, Billing Clerk from Apollo Hospital who has brought the final bill of Rs. 17,91,863/- in respect of the deceased along with details, attested by Billing Manager Mr. Gagan Bagh and the same has been proved on record as Ex. PW3/A (colly). He deposed that the payment was DAR NO. 541/17 Page 8 of 25 made in cash by the parents of deceased. He has also placed on record death summary of deceased as Ex. PW3/B (colly). During cross examination, he denied the suggestion that the bill has any connection with the deceased and the same was prepared falsely.
16. Needless to say, the insurance company has not led any evidence to show that the said medical bills do not relate to the injuries suffered by the deceased in the aforesaid accident. Thus, the testimony of PW-1 that she spent the aforesaid amount towards medical expenses remained unrebutted and uncontroverted. In the absence of any plausible evidence produced by respondents on record, there is no reason to disbelieve the testimony of PW-1 that she has spent the aforesaid amount towards medical expenses. Hence, she is held entitled to Rs. 22,81,506/- towards her medical expenses.
(II) Loss of dependency
17. The petitioner no. 1 Ms. HC Melki has stepped into the witness box as PW1 and filed her evidence by way of affidavit as Ex. PW-1/A wherein she has claimed that her deceased daughter was doing private job and was getting salary of Rs. 20,000/- per month. During cross examination, PW1 deposed that she has no documentary proof regarding salary of her deceased daughter.
PW1 has tendered on record educational qualification certificates of her deceased daughter as Ex. PW1/2, as per which the deceased was graduate at the time of accident.
18. Perusal of record reveals at the time of accident, the DAR NO. 541/17 Page 9 of 25 deceased was residing in Delhi along with her friend, who is also injured/petitioner Ms. C. Malsawmsangi @ Mami in the connected matter, for pursuing higher education and the same fact is mentioned in the chargesheet. Since the profession and salary of deceased has not been established on record, the minimum wages of graduates is taken into account as per rates prevalent in Delhi, which was Rs.12,870/- per month at the time of accident.
19. Further, PW1 has tendered on record copy of Aadhar card and election ID card of her deceased daughter. In both these documents, the date of birth of deceased is found recorded as 04.09.1993. Going by these documents, the age of deceased at the time of accident i.e. on 01.11.2016 was about 23 years, 1 months and 28 days.
Accordingly, in terms of law laid down by the Hon'ble Supreme Court in the case of Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr., (2009) 6 SCC 121, which has also been approved by a Constitution Bench of the Hon'ble Apex Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi & Ors., (2017) 16 SCC 680, the multiplier of '18' is applicable in the present case.
20. Now coming to calculation of loss of dependency, this claim petition has been filed by five petitioners being parents and siblings of the deceased. PW1 in her affidavit has claimed that the deceased was unmarried at the time of accident. In terms of law laid down by the Hon'ble Supreme Court in the case of Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr.
DAR NO. 541/17 Page 10 of 25(Supra) and National Insurance Company Ltd. Vs. Pranay Sethi & Ors. (Supra), 50% of earning of the deceased shall be deducted towards her personal and living expenses.
21. Further, in view of the law laid down in the case of National Insurance Company Ltd. Vs. Pranay Sethi & Ors. (Supra), the petitioners are entitled to addition of 40% of earning of the deceased towards future prospects as the deceased was not having any permanent job and was less than 40 years old at the time of accident. Thus, the loss of dependency in the present case is calculated to be Rs.19,45,944/- (rounded off) (Rs. 12,870/- X 12 X 50/100 X 18 X 140/100).
(II) COMPENSATION UNDER NON-PECUNIARY HEADS
22. In terms of law laid down by the Hon'ble Supreme Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi (Supra), the petitioners are also held entitled to amount of Rs.15,000/- each under the head of loss of estate and funeral expenses, i.e. Rs.30,000/- under both heads. Further, in view of Full Court judgment dated 30.06.2020 passed by Hon'ble Apex Court in United India Insurance Co. Vs. Satinder Kaur @ Satwinder Kaur & Ors. (2020) 06 SC CK 0036 (Civil Appeal Nos. 2705 and 2706 of 2020), the petitioners are entitled to Rs.40,000/- each towards 'loss of consortium', in addition to Rs.30,000/- granted under the conventional head of 'loss of estate' and 'funeral expenses.
23. Pertinently, the Hon'ble Apex Court has also held in DAR NO. 541/17 Page 11 of 25 National Insurance Company Ltd. Vs. Pranay Sethi (Supra) that compensation awarded under the conventional heads shall be enhanced at the rate of 10% in every three years and a period of 3 years have already elapsed since the deceased had expired. Hence, the petitioners in this case are also entitled to an increase @ 10% on the amount awarded under the conventional head of 'loss of estate', 'funeral charges' and 'loss of consortium'. The petitioners are thus awarded a total sum of Rs. 2,53,000/- [(Rs.30,000 + 10% of 30,000= 33,000) + (40,000 X 5 + 10% of 40,000 X 5 = 2,20,000/-)] under this head.
Issue No.3/Relief
24. In view of foregoing discussion, the petitioner is thus awarded a sum of Rs. 44,80,450/- (Rs. 22,81,506/- + Rs. 19,45,944/- + Rs. 2,53,000/-) (Rupees Fourty Four Lakhs Eighty Thousand Four Hundred Fifty only) along with 9% interest from the date of filing of DAR. However, it is directed that the amount of interim award and interest for the suspended period, if any, during the course of this inquiry, shall be liable to be excluded from the award amount.
APPORTIONMENT
25. Out of the awarded amount, 50% share is being awarded to petitioner no. 1, i.e. mother of deceased, 20% share is being awarded to petitioner no. 2, i.e. father of deceased and the remaining 10% share each is being awarded to petitioner nos. 3 to 5, i.e. brother and sisters of the deceased.
DAR NO. 541/17 Page 12 of 25RELEASE
26. Out of awarded amount, 60% amount is directed to be kept with UCO Bank, Patiala House Court, New Delhi in the Motor Accident Claims Annuity Deposit (MACAD) in form of 100 monthly fixed deposit receipts (FDRs) of equal amounts for a period of 1 to 100 months in succession, as per scheme formulated by the Hon'ble Delhi High Court vide order dated 01.05.2018 in FAO No. 842/2003, titled as Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors. and as implemented vide subsequent order dated 07.12.2018 and order dated 08.01.2021 passed in the said case. The amount of FDRs on maturity would be released in her savings/MACT Claims SB Account opened/to be opened near the place of her residence, as directed vide order dated 03.05.2018 and the remaining 40% amount is also directed to be released into her above said account, which can be withdrawn through withdrawal form and utilized by her.
Out of awarded amount, 60% amount is directed to be kept with UCO Bank, Patiala House Court, New Delhi in the Motor Accident Claims Annuity Deposit (MACAD) in form of 50 monthly fixed deposit receipts (FDRs) of equal amounts for a period of 1 to 50 months in succession, as per scheme formulated by the Hon'ble Delhi High Court vide order dated 01.05.2018 in FAO No. 842/2003, titled as Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors. and as implemented vide subsequent order dated 07.12.2018 and order dated 08.01.2021 passed in the said case. The amount of FDRs on maturity would be released in his savings/MACT Claims SB Account opened/to be opened near the place of his residence, as DAR NO. 541/17 Page 13 of 25 directed vide order dated 03.05.2018 and the remaining 40% amount is also directed to be released into his above said account, which can be withdrawn through withdrawal form and utilized by him.
Out of awarded amount, 60% amount is directed to be kept with UCO Bank, Patiala House Court, New Delhi in the Motor Accident Claims Annuity Deposit (MACAD) in form of 40 monthly fixed deposit receipts (FDRs) of equal amounts for a period of 1 to 40 months in succession, as per scheme formulated by the Hon'ble Delhi High Court vide order dated 01.05.2018 in FAO No. 842/2003, titled as Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors. and as implemented vide subsequent order dated 07.12.2018 and order dated 08.01.2021 passed in the said case. The amount of FDRs on maturity would be released in his savings/MACT Claims SB Account opened/to be opened near the place of his residence, as directed vide order dated 03.05.2018 and the remaining 40% amount is also directed to be released into his above said account, which can be withdrawn through withdrawal form and utilized by him.
Out of awarded amount, 60% amount is directed to be kept with UCO Bank, Patiala House Court, New Delhi in the Motor Accident Claims Annuity Deposit (MACAD) in form of 40 monthly fixed deposit receipts (FDRs) of equal amounts for a period of 1 to 40 months in succession, as per scheme formulated by the Hon'ble Delhi High Court vide order dated 01.05.2018 in FAO No. 842/2003, titled as Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors. and as implemented vide subsequent order dated 07.12.2018 DAR NO. 541/17 Page 14 of 25 and order dated 08.01.2021 passed in the said case. The amount of FDRs on maturity would be released in her savings/MACT Claims SB Account opened/to be opened near the place of her residence, as directed vide order dated 03.05.2018 and the remaining 40% amount is also directed to be released into her above said account, which can be withdrawn through withdrawal form and utilized by her.
Out of awarded amount, 60% amount is directed to be kept with UCO Bank, Patiala House Court, New Delhi in the Motor Accident Claims Annuity Deposit (MACAD) in form of 40 monthly fixed deposit receipts (FDRs) of equal amounts for a period of 1 to 40 months in succession, as per scheme formulated by the Hon'ble Delhi High Court vide order dated 01.05.2018 in FAO No. 842/2003, titled as Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors. and as implemented vide subsequent order dated 07.12.2018 and order dated 08.01.2021 passed in the said case. The amount of FDRs on maturity would be released in her savings/MACT Claims SB Account opened/to be opened near the place of her residence, as directed vide order dated 03.05.2018 and the remaining 40% amount is also directed to be released into her above said account, which can be withdrawn through withdrawal form and utilized by her.
27. The disbursement to the petitioners is, however, subject to addition of future interest till deposit proportionately and also deduction of proportionate tax on the interest amount or amount of interim award, if any, to/from their shares.
28. The bank shall not permit any joint names to be added DAR NO. 541/17 Page 15 of 25 in the savings bank account or MACAD scheme account of petitioners i.e. the bank account of petitioners shall be individual account and not a joint account.
29. The original fixed deposits shall be retained by the UCO Bank, PHC, New Delhi in safe custody. However, the statement containing FDR numbers, amounts, dates of maturity and maturity amounts shall be furnished by the said bank to the petitioners and the above amount shall be released in account of petitioners by the Manager, UCO Bank, PHC, ND through RTGS/NEFT/or any other electronic mode.
30. 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.
31. The maturity amount of the FDR(s) on monthly basis net of TDS be credited by Electronic Clearing System (ECS) in the above accounts of petitioners.
32. No loan, advance or withdrawal or pre-mature discharge be allowed on the MACAD without permission of the Court.
33. The concerned bank shall not 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.
DAR NO. 541/17 Page 16 of 2534. 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.
35. It is clarified that the endorsement made by the bank along with the duly signed and stamped by the bank official on the passbook(s) of the claimant(s) is sufficient compliance of clause above.
LIABILITY
36. The insurance company has taken a defence that it is not liable to pay the compensation as the respondent no. 1 was having the learner license at the time of accident, but there is no "L" plates both in front and in rear of the offending vehicle.
In order to prove the same, the respondent no. 3 has examined Ms. Swati Sareen, Administrative Officer (Legal) from their office who tendered on record copy of notice under Order 12 Rule 8 CPC as Ex. R3W1/A (OSR), copy of postal receipts as Ex. R3W1/B & Ex. R3W1/C (colly) and certified copy of insurance policy as Ex. R3W1/D. She deposed that there is no "L" plates in front and rear side of the offending vehicle as reflected in the photographs of the offending vehicle filed by the IO and hence, the driver and owner had breached the terms and conditions of the insurance policy.
37. In the written submissions, it is stated on behalf of Respondent no. 1 that since the respondent no. 1 was driving DAR NO. 541/17 Page 17 of 25 the vehicle along with Sh. Manjinder Singh @ Mani, who was holding a valid driving license, there is no breach of terms and conditions of the policy.
38. Perusal of record reveals that along with the written submissions, respondent no. 1 has filed his learner driving license along with the driving license of Sh. Manjinder Singh @ Mani. Even the IO has also seized the learner driving license of respondent no. 1 and driving license of Sh. Manjinder Singh, who was sitting with respondent no. 1 on conductor seat during investigation as mentioned in the chargesheet.
39. Perusal of learner license of respondent no. 1 reveals that the same is valid for MCWG LMV for a period w.e.f. 16.06.2016 to 15.12.2016, which covers the date of accident, i.e. 01.11.2016. The respondent no. 1 was driving the offending vehicle accompanied by Sh. Manjinder Singh @ Mani who was holding a valid driving license which is apparent from the record and as per statement of petitioner to the police. Further, the petitioner has also stated that Sh. Manjinder Singh was sitting on conductor seat means at the front seat besides the driver and hence, he is in a position to control or stop the vehicle.
40. It is relevant to refer a decision of Hon'ble Apex Court passed in National Insurance Company Limited v. Swaran Singh, 2004 (1) A.C.J. 1 wherein the Hon'ble Apex Court has held that "a person holding Learner's Licence would also come within the purview of "duly licensed" as such, a licence is also granted in terms of the provisions of the Motor Vehicles Act and the Rules framed thereunder". It has been further observed that even if there exists a DAR NO. 541/17 Page 18 of 25 condition in the contract of insurance that the vehicle cannot be driven by a person holding a learner's licence, the same would run counter to the provisions of Section 149 (2) of the Motor Vehicles Act.
Reliance has been placed upon the judgment of Hon'ble High Court of Delhi in case National Insurance Co. Ltd. Vs. Sonia Mittal & Ors., MAC Appeal No. 1043/2016, decided on 12.10.2017 wherein it was held that "what is the crucial requirement is the special training for driving a vehicle meant for transportation of hazardous goods. That requirement has been fulfilled. Securing of endorsement in wake of such certification of the special skill was more of ministerial nature".
41. Adverting to the facts of the present case, corollary can be drawn from the aforesaid judgment in the present set of facts and circumstances that the driver of the offending vehicle was having a valid learner license and was accompanied by a person who was having a valid driving license and was sitting in a position so that he can control or stop the vehicle, then the "L" plates on the front and rear of the offending vehicle is only non compliance of traffic rules which does not go to the roots of contract with the Insurance Company and hence, there is no fundamental breach of terms and conditions of the insurance policy.
42. All the respondents are though being held jointly and severally liable to pay the awarded amount of compensation to petitioners. Respondent no. 3. being insurer of offending vehicle, is directed to deposit the award amount with UCO Bank, Patiala House Court Branch, along with interest @ 9% per annum from the DAR NO. 541/17 Page 19 of 25 date of filing of DAR by RTGS/NEFT/IMPS in bank account being maintained in the above said bank in name of this tribunal within 30 days from today, failing which it is liable to pay interest at the rate of 12% per annum for the period of delay. In case even after lapse of 90 days from today, respondent no. 3 fails to deposit this compensation with interest, in that event, in light of judgment of the Hon'ble High Court of Delhi passed in the case of New India Assurance Company Limited Vs. Kashmiri Lal2007 ACJ 688, this compensation shall be recovered by attaching the bank account of Respondent no. 3 with a cost of Rs.5,000/-.
43. The respondent no. 3 shall inform the petitioners and their counsels through registered post that the cheques/DDs of the awarded amount is being deposited so as to facilitate them to collect their cheques/DDs.
44. 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.
45. Further, Nazir is directed to maintain the record in Form XVIII as per the directions given by the Hon'ble Delhi High Court in the above case on 08.01.2021.
46. The particulars of Form-XVII of the Modified Claims Tribunal Agreed Procedure, in terms of directions given by the Hon'ble Delhi High Court in the Rajesh Tyagi Vs. Jaibir Singh & Ors.(supra) on 08.01.2021, are as under:-
DAR NO. 541/17 Page 20 of 251. Date of the accident 01.11.2016
2. Date of filing of Form I- First NA Accident Report (FAR)
3. Date of delivery of Form-II to the NA victim(s)
4. Date of receipt of Form-III from NA the Driver
5. Date of receipt of Form-IV from the owner NA
6. Date of filing of the Form-V- NA Interim Accident Report (IAR)
7. Date of receipt of Form-VIA and NA Form VIB from the Victim (s)
8. Date of filing of Form-VII- 07.06.2017 Detailed Accident Report (DAR)
9. Whether there was any delay or No deficiency on the part of the Investigating Officer? If so, whether any action/direction warranted?
10. Date of appointment of the Not given Designated Officer by the Insurance Company.
11. Whether the Designated Officer of No the Insurance Company submitted his report within 30 days of the DAR?
12. Whether there was any delay or No deficiencies on the part of the Designated Officer of the Insurance Company? If so, whether any action/direction warranted?
13. Date of response of the Legal offer not claimant(s) of the offer of the filed Insurance Company.DAR NO. 541/17 Page 21 of 25
14. Date of the award 19.12.2022
15. Whether the claimant(s) were directed to open savings bank Yes account(s) near their place of residence?
16. Date of order by which claimant(s) were directed to open savings bank account(s) near his place of residence and produce PAN Card 03.05.2018 and Adhaar Card and the direction to the bank not issue any cheque book/debit card to the claimant (s) and make an endorsement to this effect on the passbook(s).
17. Date on which the claimant(s) produced the passbook of their savings bank account near the Yet to furnish place of their residence along with the endorsement, PAN Card and Adhaar Card?
18. Permanent Residential Address of R/o 86, ECM the Claimant(s) Veng, PO Saiha, ECM Veng, Saihatlang, Saiha, Mizoram-
796901.
19. Whether the claimant(s) savings Yet to furnish bank account(s) is near his place of residence?
20. Whether the claimant(s) were examined at the time of passing of Yes the award to ascertain his/their financial condition?
DAR NO. 541/17 Page 22 of 2547. File be consigned to Record room after completion of necessary formalities. Separate file be prepared for compliance report and be put up on 10.02.2023.
Announced in the open court (Shefali Barnala Tandon) on 19.12.2022 PO/MACT, New Delhi
Encl: The summary of computation in the prescribed format DAR NO. 541/17 Page 23 of 25 SUMMARY OF COMPUTATION OF AWARD AMOUNT IN FORM XV
1. Date of accident : 01.11.2016
2. Name of the deceased : Ms. TT Jesslelyn
3. Age of the deceased : 23 years, 1 month and 28 days
4. Occupation of the deceased : Minimum wages for graduates in Delhi
5. Income of the deceased : Rs. 12,870/- per month
6. Name, age and relationship of legal representative of deceased:-
Srl. Name Age Relation
No.
(i) Smt. H.C. Melki 44 years Mother
(ii) Sh. T.T. Zahmo 54 years Father
(iii) Sh. Jacab T. 25 years Brother
Thapa
(iv) Ms. Hillary 20 years Sister
(v) Sh. T.T. Dorothy 22 years Sister
Jim
Computation of Compensation
Sr. Heads Amount Awarded
No.
7 Income of the deceased Rs.12,870/-
(A)
8 Add-Future Prospects (B) Rs.5,148/-
9 Less-Personal expenses Rs.9,009/-
of the deceased (C)
10 Monthly loss of Rs.9,009/-
dependency
[(A+B) - C = D]
11 Annual loss of Rs.1,08,108/-
dependency (D x 12)
12 Multiplier (E) 18
13 Total loss of dependency Rs.19,45,944/-
(D x 12 x E = F)
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14 Medical Expenses (G) Rs. 22,81,506/-
15 Compensation for loss of Nil
love and affection (H)
16 Compensation for loss of Rs.2,20,000/-
consortium (I)
17 Compensation for loss of Rs.16,500.00
estate (J)
18 Compensation towards Rs.16,500.00
funeral expenses (K)
19 TOTAL Rs.44,80,450/-
COMPENSATION
(F + G + H + I + J+K =L)
20 RATE OF INTEREST 9% pa from date of filing of
AWARDED DAR till deposit in 30 days and
12% thereafter.
21 Interest amount up to the Rs.22,32,737.12
date of award (M)
22 Total amount including Rs. 67,13,187.12 (rounded off
interest (L+M) to Rs. 67,13,500/-)
23 Award amount released P-1 = 40% share
P-2 = 40% share
P-3 = 40% share
P-4 = 40% share
P-5 = 40% share
24 Award amount kept in P-1 = 60% share
FDRs/ MACAD P-2 = 60% share
P-3 = 60% share
P-4 = 60% share
P-5 = 60% share
25 Mode of disbursement of Through bank
the award amount to
claimant(s)
26 Next date for compliance 10.02.2023
of the award
(Shefali Barnala Tandon)
PO/MACT, New Delhi
19.12.2022
DAR NO. 541/17 Page 25 of 25