Delhi District Court
Ashok Arya & Ors., Ashok Arya vs . Ashok Paswan & Ors. Page 1 Of 24 on 3 February, 2023
MACP Nos. 34/19 & 35/19; FIR No. 354/18; PS. Alipur DOD:03.02.2023
IN THE COURT OF SHRI VINOD YADAV,
PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNAL,
NORTH DISTRICT, ROHINI COURTS, DELHI
MAC Petition No. 34/19
UID/CNR No. DLNT010005042019
1. Sh. Ashok Arya,
S/o Sh. Dharampal Arya,
(Husband of deceased Smt. Saraswati Arya)
2. Sh. Apurv Arya,
S/o Sh. Ashok Arya,
(Son of deceased Smt. Saraswati Arya)
3. Sh. Dhruv Arya,
S/o Sh. Ashok Arya,
(Son of deceased Smt. Saraswati Arya)
All R/o H.No. 394P, Sector - 39 ,
Gurugram, Haryana.
VERSUS
1. Sh. Ashok Paswan,
S/o Sh. Raju Paswan,
R/o Village Kacha Bahadurpur,
PS. Dalsingh Sarai,
District Samastipur,
Bihar.
(Driver)
2. Sh. Ganga Ram Yadav,
S/o Late Sh. Lachhman Dass,
Flat No. 194, Bharat Apartment,
Ashok Arya & Ors., Ashok Arya Vs. Ashok Paswan & Ors. Page 1 of 24
MACP Nos. 34/19 & 35/19; FIR No. 354/18; PS. Alipur DOD:03.02.2023
Sector - 13, Rohini,
Delhi.
(Registered owner)
3. United India Insurance Co. Ltd.
Punjabi Bagh,
New Delhi.
(Insurer)
........Respondents
AND
MAC Petition No. 35/19
UID/CNR No. DLNT010005052019
Sh. Ashok Arya,
S/o Sh. Dharampal Arya,
R/o H.No. 394P, Sector - 39 ,
Gurugram, Haryana.
(Injured)
VERSUS
1. Sh. Ashok Paswan,
S/o Sh. Raju Paswan,
R/o Village Kacha Bahadurpur,
PS. Dalsingh Sarai,
District Samastipur,
Bihar.
(Driver)
2. Sh. Ganga Ram Yadav,
S/o Late Sh. Lachhman Dass,
Flat No. 194, Bharat Apartment,
Sector - 13, Rohini,
Delhi.
(Registered owner)
Ashok Arya & Ors., Ashok Arya Vs. Ashok Paswan & Ors. Page 2 of 24
MACP Nos. 34/19 & 35/19; FIR No. 354/18; PS. Alipur DOD:03.02.2023
3. United India Insurance Co. Ltd.
Punjabi Bagh,
New Delhi.
(Insurer)
........Respondents
Date of Institution : 18.01.2019
Date of Arguments : 10.01.2023
Date of Award : 03.02.2023
APPEARENCES
Sh. C.M. Sangwan, Ld. Counsel for petitioners/Lrs of
deceased as well as petitioner/injured.
Driver in person.
None for registered owner.
Ms. Umesh Kaushal, Ld. Counsel for insurance co.
Petition under Section 166 and 140 of M.V. Act, 1988
for grant of compensation
AWARD:
1. Vide this common order, I shall dispose of both Detailed
Accident Reports (DAR) with regard to fatal injuries sustained by Smt.
Saraswati Arya (deceased in MACP No. 34/19) and Sh. Ashok Arya (injured
in MACP No. 35/19) in Motor Vehicular Accident which occurred on
14.08.2018 at about 12:05 am at Main G.T. Road, Singhu Village Cut
towards Delhi, involving Tempo bearing registration no. HR69B4771
(offending vehicle) being driven in a rash and negligent manner by its
driver(Respondent no. 1).
Ashok Arya & Ors., Ashok Arya Vs. Ashok Paswan & Ors. Page 3 of 24
MACP Nos. 34/19 & 35/19; FIR No. 354/18; PS. Alipur DOD:03.02.2023
2. Both the DARs were consolidated for the purpose of recording
of evidence vide order dated 08.07.2019, passed by my Ld. Predecessor
and MACP No. 34/18 titled as " Ashok Arya & Ors. Vs. Ashok Paswan &
Ors" was treated as the leading case.
FACTS OF THE CASES
3. According to DAR filed in both the cases, on 13.08.2018 at about 9:30 PM, petitioner Sh. Ashok Arya (injured) and his wife Smt. Saraswati Arya (deceased) were returning from Radaur, District Yamuna Nagar, Haryana on car bearing registration no. HR26DL0878. On 14.08.2018 at about 12:05 AM, when they reached ahead from Singhu Border towards Delhi, offending vehicle which was being driven by its driver at a very high speed, in a rash and negligent manner came and suddenly took a sharp U turn from the cut and hit the aforesaid car, as a result of which, both the occupants of the car sustained injuries. They both were taken to SRHC Hospital, Narela, Delhi, where they both were medically examined. However, on 14.08.2018 the deceased succumbed to the injuries sustained by her in the accident. FIR No. 354/18 u/s. 279/337 IPC was registered at PS. Alipur with regard to the said accident. It is claimed that offending vehicle was owned by respondent no. 2 and insured with United India Insurance Co Ltd./respondent no. 3 during the period in question.
Ashok Arya & Ors., Ashok Arya Vs. Ashok Paswan & Ors. Page 4 of 24MACP Nos. 34/19 & 35/19; FIR No. 354/18; PS. Alipur DOD:03.02.2023
4. In their identical but separate joint written statements filed in both the cases, the respondents no. 1 & 2 i.e. driver and registered owner claimed that accident had not occurred due to the rash and negligent driving of respondent no. 1 but the same had occurred due to rash and negligent driving of driver of car and offending vehicle had been falsely implicated in the present case. It was claimed that respondent no. 1 was having valid and effective driving licence at the time of accident. It was further claimed that offending vehicle was insured with respondent no. 1 and as such, insurance company is liable to pay the compensation to the petitioner. On the basis of these averments, they have prayed for dismissal of DAR.
5. In both the cases, the insurance company has given legal offer for the injuries suffered by deceased as well as petitioner in the present case. In MACP No.34/19, legal offer Rs. 4,51,045/ was filed by the insurance company for the fatal injury suffered by Smt. Saraswati Arya. In MACP No. 35/19, legal offer of Rs. 10,000/ was filed by the insurance company for the injury suffered by the petitioner Sh. Ashok Arya. The said legal offers were not acceptable to the petitioner(s).
6. From the pleading of the parties, the following issues were framed in MACP No. 34/19 & 35/19 by Ld. Predecessor vide order dated 08.07.2019 :
1) Whether the injured Sh. Ashok Arya suffered injuries and Smt. Saraswati Arya suffered fatal Ashok Arya & Ors., Ashok Arya Vs. Ashok Paswan & Ors. Page 5 of 24 MACP Nos. 34/19 & 35/19; FIR No. 354/18; PS. Alipur DOD:03.02.2023 injuries in road traffic accident on 14.08.2018 at about 12:05 pm at Main G.T. Road, Singhu Village, Delhi, within the jurisdiction of PS. Alipur due to rashness and negligence on the part of the driver Sh. Ashok Paswan who was driving the vehicle bearing registration no.
HR69B4771, owned by Sh. Ganga Ram and insured with M/s. United India Insurance Co.
Ltd.? OPP.
2) Whether the injured and Lrs of deceased are entitled to any compensation if so to what amount and from whom? OPP.
3) Relief.
7. In support of their claim, the petitioners have examined one witness i.e. PW1 Sh. Ashok Arya (husband of deceased Smt. Saraswati Arya) and their evidence was closed vide order dated 26.04.2022. On the other hand, no evidence was adduced by any of the respondents and their respective evidence was closed vide order dated 07.06.2022.
8. Before proceeding further, it may be noted that vide order dated 20.12.2021 passed by my Ld. Predecessor, it was directed that the petitioners shall not be entitled to any interest from 20.12.2021 till further orders as they have failed to conclude their evidence. Record shows that PE was concluded on 26.04.2022. Thus, their right to claim interest has been curtailed from 20.12.2021 till 26.04.2022.
Ashok Arya & Ors., Ashok Arya Vs. Ashok Paswan & Ors. Page 6 of 24MACP Nos. 34/19 & 35/19; FIR No. 354/18; PS. Alipur DOD:03.02.2023
9. I have heard the arguments addressed by ld counsels for the parties. I have also gone through the record. My findings on the issues are as under: ISSUE NO. 1 ( IN BOTH THE CASES)
10. For the purpose of this issue, the testimony of PW1 Sh. Ashok Arya who is injured in the present accident is relevant. He has deposed in his evidence by way of affidavit (Ex. PW1/A) on the similar lines of averments made in both the DARs. He has relied upon the following documents: S.No. Description of documents Remarks
1. DAR Ex. PW1/1(colly)
2. Copy of pension certificate issued Ex. PW1/2 by Allahabad Bank (employer of deceased)
11. During his crossexamination on behalf of insurance company, he deposed that there was normal traffic at the place of accident at the time of accident. He further deposed that at the time of accident, they were coming to Delhi from Singhu Border and the offending vehicle was in their opposite direction. He denied the suggestion that accident had taken place due to his negligence as he was driving his car in a rash and negligent manner.
Ashok Arya & Ors., Ashok Arya Vs. Ashok Paswan & Ors. Page 7 of 24MACP Nos. 34/19 & 35/19; FIR No. 354/18; PS. Alipur DOD:03.02.2023
12. It is an undisputed fact that FIR No. 0354/18 u/s 279/337 IPC was registered at PS. Alipur with regard to accident in question. Copy of said FIR (which is part of DAR), would show that same was registered on 14.08.2018 on the basis of DD Entry No. 3B with regard to accident call received in PS. Alipur on 14.08.2018. The respondents no. 1 & 2 have failed to substantiate the plea that petitioners had any kind of ill will or enmity against them so as to falsely implicate respondent no. 1 in criminal case or to depose falsely against him during the course of inquiry. Furthermore, said FIR is shown to have been registered on 14.08.2018 i.e. on the date of accident itself. Thus, there is no possibility of false implication of deceased drivercumowner and / or false involvement of offending vehicle at the instance of the petitioners.
13. It is pertinent to note that the respondent no.1/driver of offending vehicle, was the other material witness to throw light by testifying as to how and under what circumstances, the accident had taken place. However, he has preferred not to enter into the witness box. Thus, an adverse inference is liable to be drawn against him to the effect that the accident in question had taken place due to rash and negligent driving of offending vehicle by him.
14. The very fact that the respondent no. 1 Sh. Ashok Paswan was chargesheeted(which is part of DAR) by the police for offences punishable u/s. 279/337/304A IPC would further show that Investigating Agency also Ashok Arya & Ors., Ashok Arya Vs. Ashok Paswan & Ors. Page 8 of 24 MACP Nos. 34/19 & 35/19; FIR No. 354/18; PS. Alipur DOD:03.02.2023 concluded after completion of the investigation that accident had taken place due to rash and negligent driving of offending vehicle by him. Same also points out towards the fact that the accident in question had taken place due to rash and negligent driving of offending vehicle by its driver. Furthermore, said FIR is shown to have been registered on 14.08.2018 i.e. on the date of accident itself. Thus, there is no possibility of false implication of deceased driver and / or false involvement of offending vehicle at the instance of the petitioners.
15. Moreover, copies of MLCs (which are part of DAR) of deceased and injured would show that they had been removed to SRHC Hospital, Delhi with alleged history of RTA on 14.08.2018. Not only this, postmortem was got conducted on the body of deceased. Copy of PM Report (which is also part of DAR) would show that cause of death of deceased was hemorrhagic shock consequent to injury to the abdomen. All the injuries were antemortem, fresh in duration prior to death and caused by blunt force/surface impact. The injuries as mentioned in the relevant column of external injuries of the said report, are also consistent with the injuries which are sustained in road traffic accident. Again, there is no challenge to the aforesaid documents from the side of respondents including insurance company.
16. In view of the aforesaid discussion and the evidence which has come on record, it is held that the petitioners have been able to prove on Ashok Arya & Ors., Ashok Arya Vs. Ashok Paswan & Ors. Page 9 of 24 MACP Nos. 34/19 & 35/19; FIR No. 354/18; PS. Alipur DOD:03.02.2023 the basis of pre ponderence of probabilities that Smt. Saraswati Arya sustained fatal injuries whereas Sh. Ashok Arya sustained injuries in the road accident which took place on 14.08.2018 at about 12:05 am at Main G.T. Road, Singhu Village Cut towards Delhi, due to rash and negligent driving of offending vehicle by respondent no. 1. Thus, this issue is decided in favour of petitioners and against the respondents in both the DARs.
ISSUE NO.2
17. Section 168 of the Act enjoins the Claims Tribunal to hold an inquiry into the claim to make an award determining the amount of compensation which appears to it to be just and reasonable. It has to be borne in mind that the compensation is not expected to be a windfall or a bonanza nor it should be niggardly.
Compensation in MACP No. 34/19 (Deceased Smt. Saraswati Arya) LOSS OF DEPENDENCY
18. PW1 Sh. Ashok Arya has deposed in his evidence by way of affidavit Ex. PW1/A that deceased (aged about 64 years) was living a healthy and peaceful retired life and was getting a handsome pension at the time of accident. He deposed that all the petitioners were dependent upon the services of deceased at the time of accident. During his cross examination on behalf of insurance company, he admitted that both the sons of deceased were major and were working and earning at the time of Ashok Arya & Ors., Ashok Arya Vs. Ashok Paswan & Ors. Page 10 of 24 MACP Nos. 34/19 & 35/19; FIR No. 354/18; PS. Alipur DOD:03.02.2023 accident. He deposed that deceased was getting monthly pension of Rs. 43,000/(approx) at the time of accident. He further deposed that after the death of deceased, pension was reduced to Rs. 37,000/.
19. Undoubtedly, PW1 Sh. Ashok Arya, who is husband of deceased deposed in his evidence that deceased was retired and was getting pension at the time of accident. He further deposed that deceased was doing all the household chores and was also rendering the useful service to the family members at the time of accident. It is relevant to mention here that during crossexamination by Ld. counsel for insurance company, PW1 admitted that deceased was getting monthly pension of Rs. 43,000/ at the time of accident, however, after the accident, he was getting monthly pension of Rs. 37,000/. However, there is nothing on record which can show that family pension of Rs. 37,000/ is still being received by the family of deceased after her death.
20. Similar question arose before Hon'ble High Court of Delhi in the matter titled as "Oriental Insurance Co. Ltd. Vs. Pushpa Devi & Ors." MAC. APP. 312/2011, decided on 30.03.2016. In the said case, Hon'ble High Court had the occasion to deal with the issue as to whether the computation of loss of dependency was to be done by addition of entire pension receivable by the deceased during his life time to the earnings or not. The relevant paragraphs related to the issue in hand are reproduced as under: Ashok Arya & Ors., Ashok Arya Vs. Ashok Paswan & Ors. Page 11 of 24 MACP Nos. 34/19 & 35/19; FIR No. 354/18; PS. Alipur DOD:03.02.2023 xxxxx " 2. Having been fastened with the liability, the insurer has come up in appeal questioning the computation of loss of dependency by addition of the entire pension receivable by the deceased during his lifetime to the earnings. The objection essentially is that, after his death, his widow has been in receipt of family pension from army, a fact which was admitted by Avinash Dubey (PW1) one of the claimants, he being the son of the deceased. The family pension, under the normal service rules, would be half of the pension that the retired government servant is entitled to. In these circumstances, the value of the family pension that would have been received by the widow after the death would be in the sum of `4,371. This cannot treated as loss of dependency. It is the balance of `4,371/ by which the income from pension for the purposes of the family has been reduced which only deserved to be added to the calculations.
3. Thus, the loss of dependency needs to be recomputed on the earnings on (8,190 + 4,371) `12,561/ per month. Given the age of 59 years, the tribunal rightly declined to add the element of future prospects. One fourth of the income was deducted towards personal and living expenses, and rightly so, since the number of dependents is five. In this view, the loss of monthly dependency is worked out as (12,561 x 3 ÷ 4) `9,421/. On the multiplier of 9, the total loss of dependency comes to (9,421 x 12 x 9) `10,17,468/."
xxxxx
21. In the matter titled as "ICICI Lombard General Insurance Co. Ltd. Vs. Adesh Sharma & Ors." MAC. APP. 418/2010, decided on Ashok Arya & Ors., Ashok Arya Vs. Ashok Paswan & Ors. Page 12 of 24 MACP Nos. 34/19 & 35/19; FIR No. 354/18; PS. Alipur DOD:03.02.2023 21.03.2016, Hon'ble High Court of Delhi had the occasion to deal with the similar issue as involved in the present case as to whether the computation of loss of dependency was to be done by addition of entire pension receivable by the deceased during his life time to the earnings or not. The relevant paragraph related to the issue in hand is reproduced as under: xxxx "8. Further, the addition of pension of ₹9,735/to the loss of earnings was erroneous. As pointed out by the counsel for the insurance company, under the normal rules, the claimant widow would still be in receipt of family pension, as was admitted by her during her crossexamination. Since family pension is computed normally at 50% of the pension earned by the government servant, she would still be in receipt of an amount of ₹4,867/50 towards pension.
Therefore, the loss of earnings on such count wouldbe equivalent to the said amount rounded off to ₹4,868/per month. "
xxxxx
22. It is clear from the aforequoted cases that loss of dependency should be calculated by keeping in mind the actual loss suffered by the claimants on account of death of deceased. It is an admitted fact that after death of a government servant, his/her pension is reduced to half by the concerned department/authorities and as such, family of the deceased is entitled to 50% of the family pension meaning thereby that there is not complete loss of the family pension.
23. Now reverting back to the facts of the present case, it is relevant to mention here that PW1 who is husband of deceased admitted Ashok Arya & Ors., Ashok Arya Vs. Ashok Paswan & Ors. Page 13 of 24 MACP Nos. 34/19 & 35/19; FIR No. 354/18; PS. Alipur DOD:03.02.2023 that prior to the death of deceased, he was getting monthly pension of Rs. 43,000/. Since family pension is computed normally at 50% of pension earned by the government servant, the family of deceased would still be in receipt of half of the amount of Rs. 43,000/ i.e. Rs. 21,500/ per month. Thus, there is loss of income to the tune of Rs. 21,500/ per month (Rs. 43,000/ X 50/100) after the death of deceased.
24. In the matter titled as Royal Sundaram Alliance Insurance Company Limited Vs. Manmeet Singh & Ors.", reported at 2012 ACJ 721 (Delhi), it has been held by Hon'ble Delhi High Court that the services rendered by a housewife can not be counted; cooking, washing, ironing clothes and stitching clothes (in some cases) for the husband and children, teaching and guiding children, working as a nurse whenever the husband and child/children are sick, are some of the major activities of a housewife. She has no fixed hours of work; she is always in attendance to take care of each and every need of the whole family at the cost of her personal comfort and health. The services rendered by a housewife may differ from case to case considering her qualification, financial strata and social status of the family to which she belongs.
25. Now, the question arises as to what income of deceased should be taken in order to calculate loss of dependency. It is apparent on record that deceased aged about 64 years was retired at the time of accident. A person having retired can not be said to be idle and can not Ashok Arya & Ors., Ashok Arya Vs. Ashok Paswan & Ors. Page 14 of 24 MACP Nos. 34/19 & 35/19; FIR No. 354/18; PS. Alipur DOD:03.02.2023 work for gain after his/her retirement especially if he/she is a qualified person. In the present case, deceased had done Ph. D in English. Apart from that she was also rendering household services before the accident which can not be ignored, however, justice can be done with her family by giving just and fair compensation to them.
26. It is also relevant to note here that while deciding claim petition under M.V Act, it is the duty of Claims Tribunal to follow the principles of justice, equity and good conscience and to adopt more realistic, pragmatic and liberal approach. Moreover, the deceased in the present case was a government employee and was getting handsome monthly pension at the time of accident. It is also relevant to mention here that deceased was possessing degree of Doctor of Philosophy (Ph.D) in English issued by Singhania University and the said fact is duly corroborated by the document filed alongwith the DAR by the IO. In view of the aforesaid discussion, I am of the considered view that loss of dependency has to be assessed while taking the income of a graduate person under Minimum Wages Act applicable during the period in question. The minimum wages of a skilled person were Rs. 18,332/ per month at the time of accident in question, which had occurred on 13.08.2018. Thus, total loss of income would come out to be Rs. 39,832/ per month (Rs. 18,332/ plus Rs. 21,500/ loss of pension).Ashok Arya & Ors., Ashok Arya Vs. Ashok Paswan & Ors. Page 15 of 24
MACP Nos. 34/19 & 35/19; FIR No. 354/18; PS. Alipur DOD:03.02.2023
27. As per the case of petitioners, deceased Smt. Saraswati Arya was aged about 64 years at the time of accident. It is pertinent to note that IO has filed copy of PAN Card (which is part of DAR) of deceased wherein her date of birth is mentioned as 05.03.1954. Thus, she was aged about 64 years at the time of accident(date of accident being 13.08.2018). Thus, the age of deceased is accepted as 64 years at the time of accident. Hence, the multiplier of 7 would be applicable in view of pronouncement made by Constitutional Bench of Apex Court in the case titled as "Sarla Verma Vs. DTC" 2009 ACJ 1298 SC.
28. PW1/husband of deceased has categorically deposed in his evidence by way of affidavit that all the petitioners were dependent upon the deceased. It is argued on behalf of insurance company that petitioners no. 2 & 3/ both sons of deceased were major and earning at the time of accident and as such, the can not be considered as dependent upon deceased.
29. There is no evidence on record to show that husband of deceased was working and earning at the time of accident. It is an admitted fact that the petitioners no. 2 & 3 were major and earning at the time of accident. Hence, major sons of deceased are not considered dependent upon the deceased. However, even the deceased was survived by one dependent, 1/3rd is deducted towards personal and living expenses of deceased as ½ is to be deducted only in case of unmarried deceased.Ashok Arya & Ors., Ashok Arya Vs. Ashok Paswan & Ors. Page 16 of 24
MACP Nos. 34/19 & 35/19; FIR No. 354/18; PS. Alipur DOD:03.02.2023 (Reliance placed on case titled "Bharti Axa General Insurance Co. Ltd. Vs. Risalo Devi & Ors.", MAC APP. 272/2017, decided on 16.04.2018 by Hon'ble High Court of Delhi).
30. In view of the aforesaid, it is held that there was only dependent i.e. husband of deceased at the time of accident. Thus, the total of loss of dependency would come out to Rs. 22,30,592/ (Rs. 39,832/ X 2/3 X 12 X 7). Hence, a sum of Rs. 22,31,000/ (rounded off) is awarded under this head in favour of the petitioners.
LOSS OF LOVE & AFFECTION
31. After the celebrated judgment of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors. mentioned supra and recent judgment titled New India Assurance Company Limited versus Somwati & Ors., Civil Appeal no. 3093 of 2020 dated 07.09.2020 the petitioners are not entitled to be compensated under this head. Further Hon'ble Delhi High Court in appeal titled as "Bajaj Allianz General Insurance Company Ltd. Vs. Pooja & Ors", mentioned supra has been pleased to observe in para 18 of the judgment that the constitution bench decision in Pranay Sethi (supra) does not recognize any other nonpecuniary head of damages.
Hence, no amount of compensation is being awarded under this head.
Ashok Arya & Ors., Ashok Arya Vs. Ashok Paswan & Ors. Page 17 of 24MACP Nos. 34/19 & 35/19; FIR No. 354/18; PS. Alipur DOD:03.02.2023 LOSS OF CONSORTIUM
32. In view of the judgment of Hon'ble Supreme Court in case titled as New India Assurance Company Limited versus Somwati & Ors., Civil Appeal no. 3093 of 2020, dated 07.09.2020 I am of the considered opinion that all the three petitioners are entitled for payment of Rs. 44,000/ each towards loss of consortium. Consequently, a sum of Rs. 1,32,000/ is awarded to the petitioners under this head.
LOSS OF ESTATE & FUNERAL EXPENSES
33. In view of the facts and circumstances of the present case and in view of decision of Hon'ble Apex Court in the case of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors." mentioned supra, a sum of Rs. 16,500/ each is awarded in favour of petitioners on account of loss of estate and funeral expenses.
The total compensation is assessed as under:
1. Loss of dependency Rs. 22,31,000/
2. Loss of consortium Rs. 1,32,000/
3. Loss of Estate & Funeral Rs. 33,000/ Expenses Total Rs. 23,96,000/ Ashok Arya & Ors., Ashok Arya Vs. Ashok Paswan & Ors. Page 18 of 24 MACP Nos. 34/19 & 35/19; FIR No. 354/18; PS. Alipur DOD:03.02.2023 Compensation in MACP No. 35/19 (Injured Ashok Arya)
34. PW1 Sh. Ashok Arya (injured) has deposed in his evidence by way of affidavit (Ex. PW1/A) that he had suffered simple injuries in the accident.
35. The MLC (which is part of DAR) of SRHC Hospital, Narela, Delhi of petitioner/injured Sh. Ashok Arya, would reveal that he had suffered simple injury in the accident. Keeping in view the medical treatment record of petitioner available on record, the discussion made herein above and since the nature of injuries suffered by her being not found to be grievous, I hereby award total notional amount of Rs. 35,000/ towards pain and sufferings, special diet, etc, to him.
36. Now, the question which arises for determination is as to which of the respondents is liable to pay the compensation amount. Respondent no. 3/insurance company did not adduce any evidence as it had no statutory defence. It is nowhere the case of insurance company that any term or condition of insurance policy was breached/violated by insured. Rather, it had given legal offer in both the cases. Keeping in view the existence of valid insurance policy, respondent no. 3/insurance company becomes liable to pay the compensation amount, as insurance company is liable to indemnify the insured. Issue no. 2 is decided accordingly.
Ashok Arya & Ors., Ashok Arya Vs. Ashok Paswan & Ors. Page 19 of 24MACP Nos. 34/19 & 35/19; FIR No. 354/18; PS. Alipur DOD:03.02.2023 ISSUE NO. 3 RELIEF
37. In view of my findings on issues no. 1 & 2, following order is passed after relying upon judgment "Oriental Insurance Company Ltd. Vs. Sangeeta Devi & Ors bearing MAC. APP. 165/2011 decided on 22.02.2016.
a) A sum of Rs. 23,96,000/(Rupees Twenty Three Lakhs and Ninety Six Thousand only) (including interim award amount, if any) in MAC Petition No. 34/198 alongwith interest @ 7% per annum in favour of petitioners and against the respondents w.e.f. date of filing of the petition i.e. 18.01.19(except for the period from 20.12.2021 till 26.04.2022) till the date of its realization.
b) A sum of Rs. 35,000/(Rupees Thirty Five Thousand only) in MAC Petition No. 35/19 alongwith interest @ 7% per annum in favour of petitioner and against the respondents w.e.f. date of filing of the petition i.e. i.e. 18.01.19(except for the period from 20.12.2021 till 26.04.2022) till the date of its realization.
Issue no. 3 is decided accordingly.
APPORTIONMENT
38. Statement of petitioner in terms of Clause 29 MCTAP were recorded on 03.09.2022. Having regard to the facts and circumstances of the case and in view of their statements, it is hereby ordered that out of total Ashok Arya & Ors., Ashok Arya Vs. Ashok Paswan & Ors. Page 20 of 24 MACP Nos. 34/19 & 35/19; FIR No. 354/18; PS. Alipur DOD:03.02.2023 compensation amount in MAC Petition No. 34/19, the petitioner no. 1 Sh. Ashok Arya shall be entitled to share amount of Rs. 23,08,000/ (Rupees Twenty Three Lakhs and Eight Thousand Only) alongwith proportionate interest and the petitioner no. 2 & 3 shall be entitled to share amount of Rs. 44,000/ each (Rupees Forty Four Thousand Only) alongwith proportionate interest.
39. Out of share amount of petitioner no. 1, a sum of Rs. 8,08,000/(Rupees Eight Lakhs and Eight Thousand Only) shall be immediately released to him through his saving bank account no. 12372413000111 with Punjab National Bank, Sector - 32, Gurugram, Haryana, having IFSC Code PUNB0123710 and remaining amount alongwith interest amount are directed to be kept in the form of FDRs in the multiples of Rs. 50,000/ each for one month, two months, three months and so on and so forth having cumulative interest.
40. The entire share amounts of petitioners no. 2 & 3 is directed to be immediately released to them through their respective saving bank account no. 20137995933 (of Apurv Arya) with State Bank of India, Sector - 38, Gurugram, Haryana, having IFSC Code SBIN0016532 and bank account no. 12372413000115 (of Sh. Dhruv Arya) with Punjab National Bank, Sector - 32, Gurugram, Haryana, having IFSC Code PUNB0123710.
Ashok Arya & Ors., Ashok Arya Vs. Ashok Paswan & Ors. Page 21 of 24MACP Nos. 34/19 & 35/19; FIR No. 354/18; PS. Alipur DOD:03.02.2023
41. In MACP No. 35/19, the entire award amount of Rs. 35,000/ (Rupees Thirty Five Thousand Only) alongwith interest shall be immediately released to him through his saving bank account no. 12372413000111 with Punjab National Bank, Sector - 32, Gurugram, Haryana, having IFSC Code PUNB0123710.
42. All the FDRs to be prepared as per aforesaid directions, shall be subject to the following conditions:
(a) The Bank shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the claimant(s) i.e. the savings bank account(s) of the claimant(s) shall be an individual savings bank account(s) and not a joint account(s).
(b) The original fixed deposit shall be retained by the bank in safe custody. However, the statement containing FDR number, FDR amount, date of maturity and maturity amount shall be furnished by bank to the claimant(s).
(c) The monthly interest be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant(s) near the place of their residence.
(d) The maturity amounts of the FDR(s) be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant(s) near the place of their residence.
(e) No loan, advance, withdrawal or premature discharge be allowed on the fixed deposits without permission of the Court.
(f) The concerned bank shall not 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 Ashok Arya & Ors., Ashok Arya Vs. Ashok Paswan & Ors. Page 22 of 24 MACP Nos. 34/19 & 35/19; FIR No. 354/18; PS. Alipur DOD:03.02.2023 disbursement of the award amount.
(g) The bank shall make an endorsement on the passbook of the claimant(s) to the effect that no cheque book and/or debit card have been issued and shall not be issued without the permission of the Court and claimant(s) shall produce the passbook with the necessary endorsement before the Court on the next date fixed for compliance.
(h) It is clarified that the endorsement made by the bank alongwith the duly signed and stamped by the bank official on the passbook(s) of the claimant(s) is sufficient compliance of clause(g) above.
(i) The petitioner is directed to open a Motor Accident Claims Annuity (Term) Deposit Account (MACAD) in terms of order dated 07.12.2018 of Hon'ble Justice J.R. Midha in case titled as Rajesh Tyagi and Others Vs. Jaibir Singh and Others F.A.O No. 842/03 as per clause 31 of MCTAP and form VIII titled as Motor Accident Claims Annuity Deposit (MACAD) Scheme as directed in the said order.
(j) Concerned Manager, SBI, Rohini Court branch is further directed to disburse the FD amount in Motor Accident Claims Annuity Deposit (MACAD) Scheme account as directed by Hon'ble Delhi High Court vide order dated 07.12.18, on completing necessary formalities as per rules.
43. Respondent no. 3/United India Insurance Co. Ltd., being insurer of the offending vehicle, is directed to deposit the award amount with SBI, Rohini Courts branch within 30 days as per above order, failing which insurance company shall be liable to pay interest @ 9% p.a for the period of delay. Concerned Manager, SBI, Rohini Court Branch is directed to transfer the respective share amounts immediately to aforesaid petitioners in their aforesaid saving bank accounts, on completing necessary formalities as per rules. He be further directed to keep the said Ashok Arya & Ors., Ashok Arya Vs. Ashok Paswan & Ors. Page 23 of 24 MACP Nos. 34/19 & 35/19; FIR No. 354/18; PS. Alipur DOD:03.02.2023 amount in fixed deposit in its own name till the claimants approach the bank for disbursement so that the award amount starts earning interest from the date of clearance of the cheques. Copy of the award be given dasti to the petitioners and also to counsel for the insurance company for compliance. Copy of this award alongwith one photograph each, specimen signatures, copy of bank passbooks and copy of residence proof of the petitioners, be sent to Nodal Officer of SBI, Rohini Court, Branch, Delhi for information and necessary compliance. Form XV, XVI & XVII in terms of MCTAP are annexed herewith as AnnexureA. Copy of order be also sent to concerned M.M and DLSA as per clause 31 and 32 of MCTAP.
Announced in the open Court on 03.02.2023 (VINOD YADAV) Judge MACT2 (North) Rohini Courts, Delhi Certified that above award contains 24 pages and each page is signed by me.
(VINOD YADAV) Judge MACT2 (North) Rohini Courts, Delhi Ashok Arya & Ors., Ashok Arya Vs. Ashok Paswan & Ors. Page 24 of 24