Delhi District Court
Smt. Sudha Kumari vs Mr. Bijinder Singh on 6 August, 2018
IN THE COURT OF S.S. MLAHOTRA
PO:MACT1 (NORTH): ROHINI: DELHI
MACT No. 482/17
FIR no. 228/17
PS Shahbad Dairy
1. Smt. Sudha Kumari
(widow of deceased Avinash @ Pinto)
2. Baby Khushi - daughter
3. Master Manish - son
(Petitioners no. 2 & 3 are minor children of deceased
being represented through their mother / natural guardian
Smt. Sudha Kumaripetitioner no. 1.)
All R/o H. No. E53, Balmiki Mohalla,
Near Mata Chowk,
Mahipalpur, Delhi.
4. Sh. Pramod Kumar - father
5. Smt. Sobha Devi - mother
Both R/o H. No. B1/20B,
Aman Vihar, Suleman Nagar,
Kirari, Delhi.
.........Petitioners
VERSUS
1. Mr. Bijinder Singh
S/o Sh. Darshan Singh
R/o H. No. WZ420, Gali No. 3,
Sadh Nagar, Palam Colony,
New Delhi.
2. Mr. Shyam Bansal
S/o Sh. Satish Bansal
R/o H. No. 1461, Neel Kanth Apartment,
Sector13, Rohini, Delhi.
Smt. Sudha Kumari & Ors. Vs. Bijender & Ors.
MACT no. 482/17 1 /18
3. United India Insurance Company Ltd.
8th Floor Kanchanjunga Building 18,
Barakhamba Road,
Connaught Place, Delhi.
........Respondents
DATE OF INSTITUTION : 29.05.2017
JUDGMENT RESERVED ON : 23.07.2018
DATE OF AWARD : 06.08.2018
FINAL ORDER : AWARD OF
RS. 32,81,000/
FORM - IV A
1. Date of accident: 28.04.2017
2. Name of deceased: Mr. Avinash @ Pintu
3. Age of the deceased: 27 years (DOB 1.7.90 as per Ex. PW1/2)
4. Occupation of the deceased: Private work
5. Income of the deceased: Rs. 15,000/ (not proved)
6. Name, age and relationship of legal representatives of deceased:
S.No. Name Age Relation
(i) Ms. Sudha Kumar 23 yrs. Widow
(ii) Khushi 6 yrs. Daughter
(iii) Manish 4 yrs. Son
(iv) Sh. Pramod Kumar 55 yrs. Father
(v) Smt. Sobha Devi 47 yrs. Mother
Computation of Compensation
Smt. Sudha Kumari & Ors. Vs. Bijender & Ors.
MACT no. 482/17 2 /18
S.No. Heads Awarded by the Claims
Tribunal
7. Income of the deceased (A) 13,350/ (as per minimum
wages of unskilled labour)
8. AddFuture Prospects (B) 5340/ (40% of 13350)
9. LessPersonal expenses of the 4672.50 (1/4th, being four deceased (C ) dependents)
10. Monthly loss of dependency 14,017.50 { (A+B) - C =D}
11. Annual loss of dependency 1,68,210/ (Dx12) 12. Multiplier (E) 17
13. Total loss of dependency (Dx12xE 28,59,570/ = F)
14. Medical Expenses (G) Nil.
15. Compensation for loss of love and 40,000/ affection (H)
16. Compensation for loss of Nil.
consortium (I)
17. Compensation for loss of estate (J) 15,000/
18. Compensation towards funeral 15,000/ expenses (K)
19. TOTAL COMPENSATION 29,29,570/ (F+G+H+I+J+K =L)
20. RATE OF INTEREST 9% AWARDED 21 Interest amount up to the date of 3,51,548.40 award (M)
22. Total amount including interest 32,81,118.40 rounded of to Smt. Sudha Kumari & Ors. Vs. Bijender & Ors. MACT no. 482/17 3 /18
(L+M) Rs. 32,81,000/
23. Award amount released 10% subject to modified
direction of the Hon'ble High
Court
24. Award amount kept in FDRs 90% as per direction of the
Hon'ble High Court
25. Mode of disbursement of the In phased manner award amount to the claimant (s) (Clause 29)
26. Next date for compliance of the 28.09.2018 award. (Clause 31) FORM - V AGREED PROCEXDURE TO BE MENTIONED IN THE AWARD
1. Date of the accident 28.04.2017
2. Date of intimation of the accident by the 29.05.2017 investigating officer to the Claims Tribunal (Clause 2)
3. Date of intimation of the accident by the 29.05.2017 investigating officer to the insurance company. (Clause 2)
4. Date of filing of Report under section 173 Not mentioned Cr.P.C. before the Metropolitan Magistrate (Clause 10)
5. Date of filing of Detailed Accident 29.05.2017 Information Report (DAR) by the investigating Officer before Claims Tribunal (Clause 10)
6. Date of Service of DAR on the Insurance 29.05.2017 Smt. Sudha Kumari & Ors. Vs. Bijender & Ors. MACT no. 482/17 4 /18
Company (Clause 11)
7. Date of Service of DAR on the 29.05.2017 complainant(s) (Clause 11)
8. Whether DAR was complete in all respects? No. (Clause 16)
9. If not, whether deficiencies in the DAR Yes removed later on?
10. Whether the police has verified the Yes.
documents filed with DAR? (Clause 4)
11. Whether there was any delay or deficiency on No delay the part of the Investigating Officer? If so, whether any action/direction warranted? Date of appointment of the Designated Not appointed Officer by the insurance Company.
(Clause20)
13. Name, address and contact number of the Not appointed Designated Officer of the Insurance Company. (Clause 20)
14. Whether the designated Officer of the Not appointed Insurance Company submitted his report within 30 days of the DAR? (Clause 20)
15. Whether the insurance company admitted the No offer was filed liability? If so, whether the Designated Officer of the insurance company fairly computed the compensation in accordance with law. (Clause 23)
16. Whether there was any delay or deficiency o No designated officer the part of the Designated Officer of the was appointed Insurance Company? If so, whether any action/direction warranted?
17. Date of response of the claimant (s) to the No offer was filed offer of the Insurance Company .(Clause 24)
18. Date of the Award 06.08.2018 Smt. Sudha Kumari & Ors. Vs. Bijender & Ors. MACT no. 482/17 5 /18
19. Whether the award was passed with the No. The Parties consent of the parties? (Clause 22) contested the case
20. Whether the claimant(s) were directed to open Yes.
saving bank account(s) near their place of residence? (Clause 18)
21. Date of order by which claimant(s) were 28.03.2018 directed to open saving bank account (s) near his place of residence and produce PAN Card and Aadhar 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). (Clause 18)
22. Date on which the claimant (s) produced the 31.05.2018 passbook of their saving bank account near the place of their residence along with the endorsement, PAN Card and Aadhar Card?
(Clause 18)
23. Permanent Residential Address of the Petitioner no. 1 to 3 Claimant(s) (Clause 27) are R/o R/o H. No. E 53, Balmiki Mohalla, Near Mata Chowk, Mahipalpur, Delhi.
Petitioner no.4 and 5 are R/oH. No. B1/20B, Aman Vihar, Suleman Nagar, Kirari, Delhi.
24. Details of saving bank account(s) of the Petitioner no. 1 claimant(s) and the address of the bank with a/c 5081101003014 IFSC Code (Clause 27) Petitioner no. 2 a/c 5081101003016 Petitioner no. 3 a/c 5081101003015 all with Canara Bank Branch Vasant Kunj, Smt. Sudha Kumari & Ors. Vs. Bijender & Ors. MACT no. 482/17 6 /18
Delhi IFSC Code
5081
Petitioner no. 4
a/c 21170100096723
with Bank of Baroda,
branch Sultanpur
Mazra, IFSC Code
BARB0TRDSUL
Petitioner no. 5
a/c 604910100001078
with bank of India,
Branch Peera Garhi
Chowk, IFCS no. 6049
25. Whether the claimant(s) saving bank Yes
account(s) is near his place of residence? (Clause 27)
26. Whether the claimant(s) were examined at the Yes time of passing of the award.
AWARD
1. Police filed 'Detail Accident Report' (DAR) before this tribunal about the accident occurred on 28.04.2017 at about 05 pm near Prem Aadhar Hospital, Pansali, Delhi. Ms. Sudha Kumari (widow of deceased Sri Avinash), driver and owner of offending vehicle as well as Mr. S. K. Tyagi, Advocate for Ins. Co. were present on the day of filing the DAR. Copy of DAR was supplied to all the parties.
2. Brief facts of the accident are that during the investigation IO recorded the statement of Mr. Samay, stated to be eyewitness of the accident. As Smt. Sudha Kumari & Ors. Vs. Bijender & Ors. MACT no. 482/17 7 /18
per the statement of eyewitness, he was posted in PS Shahbad Dairy as constable and was on duty on 28.04.2017 and at about 5 pm while he was patrolling at Prem Adhar Hospital, Pansali he saw two boys were coming from Begumpur side and were proceeding towards Prem Adhar Hospital and in the meanwhile a vehicle i.e. ECO bearing registration no. DL1LS 4818 which was being driven by its driver (respondent no.
1) at a very high speed, rashly and negligently came from Begumpur side and hit against a boy. Due to such forceful impact victim came under the wheel of offending vehicle and got crushed. The said accident was caused by the driver of offending vehicle, who was driving his vehicle at a very high speed and in a rash and negligent manner.
3. Reply to the DAR was filed by all the respondents. Respondents no. 1 and 2 have filed their joint WS taking preliminary objection inter alia on the ground that accident has been caused due to the sole negligence on the part of victim himself and even otherwise their vehicle was duly insured with respondent no. 3 and liability if any to pay compensation to the petitioners is of respondent no. 3. Respondent no. 3 in its written statement has not disputed that fact that offending vehicle was insured with it on the date of accident, however it has taken the plea that fitness Smt. Sudha Kumari & Ors. Vs. Bijender & Ors. MACT no. 482/17 8 /18
certificate of the offending vehicle expired on 25.04.2017 whereas the accident has occurred on 28.04.2017 and therefore respondent no. 3 is not liable to pay compensation. All the other averments were denied on the ground of technicalities.
4. From the pleadings of parties following issues were framed on 11.10.2017:
1. Whether Mr. Avinash @ Pintu (deceased) suffered fatal injuries in a vehicular accident occurred on 28.04.2017 at 5 pm near Prem Aadhar Hospital, Pansali, Delhi due to rash or negligent driving of vehicle i.e. ECCO Maruti bearing registration no. DL1LS 4818 by respondent no. 1(Bijender Singh)? OPP.
2. Whether the petitioners are LRs of deceased and entitled to compensation if so, what amount and from which of the respondents? OPP.
3. Relief.
5. In order to prove the claim, two witnesses have been examined by petitioners. Petitioner Ms. Sudha (widow of deceased) examined herself as PW1 and filed her affidavit Ex. PW1/A in evidence and relied upon documents Ex. PW1/1 to Ex. PW1/8. PW2 Ct. Samay Singh, stated to be eyewitness of accident has also been examined. All the respondents opted not to adduce any evidence.
Smt. Sudha Kumari & Ors. Vs. Bijender & Ors. MACT no. 482/17 9 /18
6. I have heard Ld. counsels for parties and gone through the entire record. My issue wise findings are as under: ISSUE NO. 1.
Whether Mr. Avinash & Pintu (deceased) suffered fatal injuries in a vehicular accident occurred on 28.04.2017 at 5 pm near Prem Aadhar Hospital, Pansali, Delhi due to rash or negligent driving of vehicle i.e. ECCO Maruti bearing registration no. DL1LS 4818 by respondent no. 1(Bijender Singh)? OPP.
7. Onus to prove this issue was upon the petitioners. To prove the fact that victim suffered fatal injuries on account of rash and negligent driving of respondent no. 1, petitioner has examined PW2 Ct. Samay Singh, who is stated to be eyewitness of accident. In his examination in chief this witness (PW1) deposed on the line of his statement recorded by the police during the investigation. In his cross examination, by Ld. counsel for respondents no. 1 and 2, no suggestion has been put to the witness that accident had occurred due to negligence of victim itself or not due to rash and negligent on the part of respondent no. 1 nor with respect to manner in which the accident had occurred. Respondent no. 1 has not examined himself to prove that accident did not happen with his vehicle or he was not driving the vehicle rather it is admitted fact that deceased died due to said accident. Therefore the rash and negligent act on the part of respondent no. 1 stands established. Further, the IO has filed Smt. Sudha Kumari & Ors. Vs. Bijender & Ors. MACT no. 482/17 10 /18
criminal case record which shows that respondent no. 1 was indicted by police for offences punishable under Section 279/304A IPC. Respondent no. 1 did not approach to any higher authority or any forum against his false implication in this case. Apart from deposition of PW1, the fact that deceased suffered fatal injuries in the accident is also supported from his postmortem report, etc. Considering all this, it stands proved that accident in question occurred due to rash and negligent driving of offending vehicle by respondent no. 1 and victim died due to fatal injuries suffered in such accident. This issue is therefore decided in favour of petitioners and against the respondents.
ISSUE NO. 2.
Whether the petitioners are LRs of deceased and entitled to compensation if so, what amount and from which of the respondents? OPP.
8. It is not disputed that petitioner no. 1 is widow, petitioners no. 2 & 3 are minor children of the deceased and petitioners no. 4 and 5 are parent of deceased. Hence, petitioners being LRs of the deceased are well within their rights to claim compensation from respondents. Now coming to quantum of compensation
9. As per documents available on record, a compensation of Rs. Smt. Sudha Kumari & Ors. Vs. Bijender & Ors. MACT no. 482/17 11 /18
32,81,000/, which include 16 months interest @ 9% per annum from the date filing DAR i.e. from 29.05.2017 to 29.09.2018, is awarded to the petitioners, details of which are mentioned in the above proforma. Now coming to the aspect as to which respondent is liable to pay the compensation to the petitioners.
10. As stated above, it is not disputed by the respondent no. 3 / Ins. co. that the offending vehicle was insured with it. The only contention of Ld. Counsel for respondent no. 3 is that there was no valid fitness certificate of the offending vehicle at the time of accident and therefore it is not liable to pay compensation to the petitioner. Ld. counsel for Ins. co. has relied upon the judgment titled as Janak Ram Sahu & Anr. Vs. Bajaj Allianz General Ins. Co. Ltd. & Ors. Special Leave to Appeal no. 21644/2012 decided on 21.08.2015 to prove that in case there is no fitness of the commercial vehicle then insurance company has to be exonerated. On the other hand, Ld. counsel for respondents no. 1 and 2 has relied upon the judgment titled as Oriental Ins. Co. Ltd. Vs. Rakesh Kumar and Others 2012 ACJ 1268. I have gone through the said judgment.
Smt. Sudha Kumari & Ors. Vs. Bijender & Ors. MACT no. 482/17 12 /18
11. It is argued by the Ld. Counsel for petitioner that the judgment Janak Ram Sahu & Anr. Vs. Bajaj Allianz General Ins. Co. Ltd. & Ors. Special Leave to Appeal no. 21644/2012 decided on 21.08.2015 of the Hon'ble Supreme Court of India, as being relied upon the Ld. Counsel for Ins. Co. is a judgment which has been dismissed in limini that too which appeal / SLP has been filed by Janak Ram and it is not clear as on what point Janak Ram has filed the appeal before the Hon'ble Supreme Court of India and as such it is not conveying any direct reasoning with respect to the facts of the present case. As far as judgment relied by Ld. Counsel for Ins. Co. i.e. Bajaj Allianz General Ins. Co. Ltd. Vs. Mohan Yadav & Ors. is concerned, the same is the judgment of Hon'ble High Court of Bilaspur. He has further submitted that judgment filed before the Hon'bel High Court of Bilaspur is only having a persuasive order while judgment of our own Hon'ble High Court in Delhi Transport Corporation & Ors Vs. National Insurance Co. Ld. MAC APP. 361/2010 decided on 23.04.2012 is binding on the court and reads as under: "in view of the law laid down and the clear provision of Section 149(2) of the Act, the defences available to Smt. Sudha Kumari & Ors. Vs. Bijender & Ors. MACT no. 482/17 13 /18
the Insurance Company to avoid the policy are upto only those ones which are incorporated therein"
12. Whereas, in the judgment titled as Oriental Ins. Co. Ltd. Vs. Rakesh Kumar and Others 2012 ACJ 1268, a judgment of Hon'ble High Court, Delhi has held with respect to the fitness, relied upon by the Ld. Counsel for respondents. no. 1 and 2, it was held as under: "insurance company is under obligation to indemnify the liability towards third parties with right to recover the same from the owner".
13. Ld. Counsel for Ins. Co. has argued that he does not have any objection if recovery right is granted in favour of the insurance company in view of the judgments, which has been relied upon by the Ld. Counsel for petitioner. Accordingly, this court is of the opinion that Ins. Co. is primarily liable to pay compensation to the petitioner. However, insurance company is given liberty to recover the same from the insured / owner but after paying to the petitioner. This issue is decided accordingly in favour of petitioners and against the respondents.
ISSUE NO. 3 (RELIEF) Smt. Sudha Kumari & Ors. Vs. Bijender & Ors. MACT no. 482/17 14 /18
14. Petition in hands is allowed. Respondent no. 3 is directed to pay Rs. 32,81,000/ to the petitioners failing which respondent no. 3 to pay the interest @ 9% per annum on the amount of Rs. 29,29,570/ from 29.09.2018, till realization. Interim amount, if any paid to the petitioners be deducted from this amount.
15. Statement of petitioners about disbursement of amount of compensation was recorded. Further petitioners have got their bank account opened in terms of modified direction of Hon'ble High Court and filed photocopies of their account passbook. Considering circumstances of petitioners, it is directed that out of the total amount of compensation, 40% be given to the petitioner no. 1 (widow of deceased), 20% each to petitioners no. 2 & 3 (minor children of deceased) and 10% each to the petitioners no. 4 and 5 (parents of deceased). Out of the share of petitioner no. 1, 4 & 5 90% amount be kept in FDRs to be released in a phased i.e. Rs. 16,000/ with respect to petitioner no. 1 and Rs. 2500/ each with respect to petitioners no. 4 and 5 per month and remaining 10% amount be released to them through their saving bank account, details of which are mentioned in the above proforma and this amount would be allowed to be withdrawn only by way of withdrawal slip and Smt. Sudha Kumari & Ors. Vs. Bijender & Ors. MACT no. 482/17 15 /18
by no other means or by any digital mode i.e. ATM/Credit Card/letter/NEFT/RTGS etc. Petitioner no. 2 & 3 are minor children of deceased, amount coming to their share be invested in fixed deposits in their name till they attain age of 18 years, their bank account details are also mentioned in above proforma.
16. The salient features as prescribed in the judgment in Rajesh Tyagi Vs. Ramesh Chandra Gupta FAO No. 842/2009 and MAC. APP. No. 422/2009 decided on 07.11.2014 are to be applied:
1. The fixed deposit be renewed automatically till the period prescribed by the Court.
2. The interest on the fixed deposit be paid monthly.
3. The monthly interest be credited automatically in the saving account of the claimant.
4. Original fixed deposit receipt be retained by the bank in safe custody. However, the original passbook shall be given to the claimant along with the photocopy of the FDR.
5. The original fixed deposit receipt be handed over to the claimant at the end of the fixed deposit period.
6. Photo identity card shall be issued to the claimant and the Smt. Sudha Kumari & Ors. Vs. Bijender & Ors. MACT no. 482/17 16 /18
withdrawal shall be permitted only after due verification by the Bank of the identity card of the claimant.
7. No cheque book and debit / credit card shall be issued to the claimant without permission of the Court.
8. No loan, advance or premature withdrawal or premature encashment shall be allowed on the fixed deposit without permission of the Court.
9. The amount would be directly credited in the bank account of the petitioner, without any necessity of visiting her to court, where FDRs are kept.
10. The bank of the petitioner would make necessary endorsement on the passbook of the petitioner and in its own record as "MACT case"
and amount to be disbursed only in terms of the order of the court.
11. Bank manager concerned to inform the court in writing prior to releasing of any amount to the petitioner, to the effect that compliance of the order of the Hon'ble High Court has been made with respect to disbursement. In no case, amount of award can be released without filing a compliance report in the court and the amount, which the respective petitioner would be withdrawing can Smt. Sudha Kumari & Ors. Vs. Bijender & Ors. MACT no. 482/17 17 /18
only be allowed through withdrawal slip and by no other mode or any digital mode i.e. Debit card / Credit card /ATM/NEFT/RTGS/letter etc. Respondent no. 3 is directed to deposit entire amount of compensation with Digitally signed this tribunal within 30 days, with advance notice to petitioner. by SUKHVIR SUKHVIR SINGH SINGH MALHOTRA MALHOTRA Date:
2018.08.06 15:16:50 +0530 ANNOUNCED IN THE OPEN (S.S. MALHOTRA) COURT ON 06.08.2018 PO:MACTORTH,ROHINIDELHI Smt. Sudha Kumari & Ors. Vs. Bijender & Ors. MACT no. 482/17 18 /18