Delhi District Court
Soma Devi & Anr. vs . National Ins. Co. Ltd. on 3 November, 2018
FIVE YEARS OLD CASES
IN THE COURT OF SH. M. K. NAGPAL PRESIDING
OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNAL : PATIALA
HOUSE COURTS, NEW DELHI
MACP No. 53/16 (Old Nos.271/13 & 345/14)
SOMA DEVI & ANR. VS. NATIONAL INS. CO. LTD.
1. Smt. Soma Devi (Mother)
W/o. Sh. Gopal Dutt
2. Sh. Gopal Dutt (Father)
S/o Sh. Damodar Prasad
Both R/o. H. No. H-295, Sector 22,
PS Noida Sector-24, District Ghaziabad, U.P.
......Petitioners/Claimants.
AND
MACP No. 54/16 (Old Nos.268/13 & 346/14)
SHASHI & ORS. VS. NATIONAL INS. CO. LTD.
1. Smt. Shashi (Wife)
W/o. Late Sh. Satish Kumar
2. Baby Yashika
(Daughter)
D/o. Late Sh. Satish Kumar
3. Sh. Khachedu Singh Rana (Father)
S/o. Sh. Jagana Singh
(P-2 being minor is represented through her
mother and natural guardian Smt. Shashi)
All R/o. H. No. 106, Sector 22,
PS Noida Sector-24, District Gautam Budh Nagar, U.P.
......Petitioners/Claimants.
AND
MACP Nos.53/16, 54/16 & 55/16 Page no. 1 of 50
MACP No. 55/16 (Old Nos.269/13 & 344/14)
SIDDHESHVARI & ANR. VS. NATIONAL INS. CO. LTD.
1. Smt. Siddheshvari (Mother)
W/o. Sh. Kailash Chand Kainthola
2. Sh. Kailash Chand Kainthola (Father)
S/o. Sh. C.P. Kainthola
Both R/o. H. No. 240, Sector 22,
PS Noida Sector-24, District Gautam Budh Nagar, U.P.
......Petitioners/Claimants.
Versus
1. M/s. National Insurance Co. Ltd. (Insurer of car)
Through Manager DO-X
101-106, BMC House, Connuaght Place,
New Delhi-01.
2. Sh. Roshan Kainthola (Driver of car)
S/o. Sh. K.C. Kainthola,
R/o. H.No. 240, Sector 22, Noida, U.P.
3. Sh. Pitam Singh (Driver of tractor)
S/o. Sh. Nathoo Singh
R/o.Village Rahmapur, PS Kotwali City,
District Bijnaur, U.P.
4. Sh. Arvind Kumar (Owner of tractor)
S/o. Sh. Amar Singh
R/o.Village Mathera Chauhan, PO Sahaspuri Mahichand,
Tehsil Nagina, District Bijnaur, U.P.
5. M/s Oriental Insurance Co. Ltd. (Insurer of tractor)
Through Manager
A-25/27, Oriental House Asaf Alil Road,
New Delhi.
6. Sh. Vivek Kumar (Owner/purchaser of tractor)
S/o. Sh. Arvind Kumar,
R/o.Village Mathera Chauhan, PO Sahaspuri Mahichand,
Tehsil Nagina, District Bijnaur, U.P.
.....Respondents
MACP Nos.53/16, 54/16 & 55/16 Page no. 2 of 50 Date of filing of claim petitions : 22.08.2013 Date of framing of issues in MACP Nos.53/16 & 54/16: 21.11.2014 Date of framing of issue in MACP No.55/16 : 14.01.2015 Date of concluding arguments : 31.11.2018 Date of decision : 03.11.2018 AWARD/JUDGMENT
1. All these three petitions bearing MACP Nos.53/16 (Old No.271/13 & 345/14), 54/16 (Old Nos.268/13 & 346/14) and 55/16 (Old Nos.269/13 & 344/14) are connected to each other as they arise out of the same accident and hence, the same are being taken up and disposed off together through this common judgment/award. These petitions pertain to claims for compensation raised by legal heirs (LRs) of the deceased Sandeep Balodi, Satish Kumar and Deepak Kainthola respectively.
2. Facts of the case, briefly stated, are that on 29.12.2012 at about 9:45pm, all the above three deceased, alongwith R-2 Roshan Kainthola and one Mohinder Singh Bisht, were traveling in a Maruti Swift car bearing registration no. UP-16TC-0434, which was a temporary number of the said car. They all were going from Noida to Kotdwar, via Nagina, and were on the road leading from Bijnaur to Nagina and when they had reached at a distance of around 9 kms. on the said road, their above car had suddenly collided with one tractor of make Massey Ferguson attached with trolley, coming from the opposite direction and this tractor was having engine number S325-ID04639 and chassis number 625367 and was not bearing any registration number. All the five occupants of the car suffered injuries in the above accident and though R-2 and the above Mohinder Singh Bisht survived with some minor injuries, but the injuries suffered by the above three deceased proved fatal and they all were declared brought dead by the doctors of the District Hospital, Bijnaur.
MACP Nos.53/16, 54/16 & 55/16 Page no. 3 of 50
3. One FIR No.870/12, under Sections 279/338/427/304A IPC at PS Kotwali Nagar, Bijanur, U.P. was registered regarding the said accident and the same was registered against R-3, i.e. driver of the above tractor, on the basis of statement/complaint given by one Kundan Singh, who is brother of the deceased Satish of MACP No.54/16. R-1 is the insurer of the above car and R-2 is its driver at the time of accident and the car is stated to have been owned by the deceased Deepak Kainthola of MACP No.55/16. R-3 is driver of the above tractor, R-4 its owner, R-5 its insurer and R-6 is also stated to be its owner or purchaser.
4. It is necessary to mention here that though in MACP No.55/16 pertaining to death of the deceased Deepak Kainthola, five respondents, i.e. R-1 to R-5, were impleaded from the very beginning, but in other two MACP Nos. 53/16 & 54/16 only R-1 & R-2 were impleaded originally and all the remaining four respondents were impleaded subsequently. R-3, R-4 & R-5 in these two MACP Nos.53/ 16 & 54/16 were impleaded vide order dated 11.07.2014 by this tribunal on an application under Order 1 Rule 10 CPC filed by the petitioners on raising of some objections raised by the other respondents regarding their non-impleadment.
5. R-6 in all the three petitions is found to have been impleaded at a much later stage of final arguments vide the order dated 21.04.2017.
6. R-1/Insurance Co. of the above car in its WS has admitted the fact that the above car was having a valid policy of insurance issued by them in name of the deceased Deepak Kainthola of MACP No.55/16 at the time of accident, but they have denied their liability to pay any compensation to the petitioners in these cases and have also submitted the claimed amounts to be MACP Nos.53/16, 54/16 & 55/16 Page no. 4 of 50 exorbitant. They are also found to have raised a plea of contributory negligence on the part of the deceased and further submitted that the accident took place due to negligence of driver of the tractor and hence, the driver, owner and insurer of the said tractor are liable to pay compensation to the petitioners, if any. They have also denied the other allegations of petitioners on merits while further claiming that the LRs of deceased Deepak Kainthola, who was owner of the said car, are also liable to pay compensation, if any, alongwith them.
7. It is also necessary to mention her that after filing their above WS/reply, one application under Order 1 Rule 10 CPC was moved on behalf of R-1/Insurance Co. of the car raising the issue of maintainability of MACP No.55/16 qua the deceased Deepak Kainthola on the ground that he or his LRs claiming through him were not a 'third party' qua them and hence, their claim raised in this petition was not maintainable. However, vide order dated 14.01.2015 of this tribunal, the said objection was kept open to be considered at the final stage. Subsequently, on an application under Order 6 Rule 17 CPC moved on behalf of R-1, they were also permitted to amend their earlier WS filed in MACP No.55/16 vide order dated 21.11.2014 and in their amended WS filed in terms of the said order also, they have specifically raised the issue of maintainability of the said petition on the above ground.
8. R-4 in his WS has admitted that he is owner of the above tractor, but he has denied the involvement of his tractor in the accident. It is his case that as per the facts alleged in the petitions the said accident took place due to rash and negligence driving on the part of driver of the car and hence, he is not liable to pay any compensation to the petitioners. He has also pleaded that since his tractor was duly insured with R-5, the liability to pay compensation to MACP Nos.53/16, 54/16 & 55/16 Page no. 5 of 50 the petitioners, if any, is of R-5 only and that too, as per the terms and conditions of the said policy. It is also alleged by him that car of the deceased was being driven at an excessive speed and in a rash and negligent manner.
9. R-5/Insurance Co. of the tractor in its WS has submitted that they had issued one 'Act' or 'Liability' only policy for the period 07.11.2012 to 06.11.2013 in the name of PNB Nagina A/c no. AU- 742 of R-6, but it is claimed that the said policy was issued in respect of a Tafe tractor bearing engine no. D09071 and chassis no. 628163. It is also submitted that later on an endorsement dated 01.01.2013 was made/passed and name of insured was changed as PNB Nagina A/c no. AU-742 in the name of R-4 Arvind Kumar and engine and chassis numbers of the said tractor were also changed to D04639 and 625367 respectively. Hence, in view of the above submissions, they have also denied their liability to pay any compensation to the petitioners, while also raising the issue of maintainability and non-joinder and mis-joinder of the parties etc.
10. R-6 in his WS has also denied his liability to pay any compensation to the petitioners in view of the facts alleged by the petitioners themselves and claimed that liability, if any, to pay compensation is of R-5 only as the said tractor was insured with them and it was also being driven by R-3 under a valid driving licence (DL).
11. No WS to these claim petitions has been filed on record on behalf of R-2 & R-3, who are drivers of above cars and tractor respectively.
12. From pleadings of the parties, issues in MACP Nos. 53/16 and 54/16 were framed by this tribunal on 21.11.2014 and issues in other MACP No.55/16 were framed on 14.01.2015 and the MACP Nos.53/16, 54/16 & 55/16 Page no. 6 of 50 same are as follows:-
Issues in MACP No.53/161. Whether the deceased Sandeep Balodi sustained fatal injuries in the accident which occurred on 29.12.2012 at about 9.45 pm near Bijnaur to Nagina Road, caused by rash and negligent driving of vehicle No. UP-16TC-0434, being driven by respondent no.2, insured with respondent no.1 and vehicle tractor having Engine no.S325-1D 04639 driven by respondent no.3, owned by respondent no.4 and insured with respondent no.5? OPP.
2. Whether the LRs of the deceased are entitled for compensation? If so, to what amount and from whom?
3. Relief.Issues in MACP No.54/16
1. Whether the deceased Satish Kumar sustained fatal injuries in the accident which occurred on 29.12.2012 at about 9.45 pm near Bijnaur to Nagina Road, caused by rash and negligent driving of vehicle No. UP-16TC-0434, being driven by respondent no.2, insured with respondent no.1 and vehicle tractor having Engine no.S325-1D 04639 driven by respondent no.3, owned by respondent no.4 and insured with respondent no.5? OPP.
2. Whether the LRs of the deceased are entitled for compensation? If so, to what amount and from whom?
3. Relief.Issues in MACP No.55/16
1. Whether the deceased Deepak Kainthola sustained fatal injuries in the accident which occurred on 29.12.2012 at about 9.45 pm near Bijnaur to Nagina Road, caused by rash and negligent driving of vehicle No. UP-16TC-0434, being driven by respondent no.2, insured with respondent no.1 and vehicle tractor having Engine no.S325-1D 04639 driven by respondent no.3, owned by respondent no.4 and insured with respondent no.5? OPP.
2. Whether the LRs of the deceased are entitled for compensation? If so, to what amount and from whom?
3. Relief.
13. However, it has been observed that these three petitions have not been consolidated with each other for the purposes of inquiry and trial and separate evidence has been led by the parties thereto in support of their respective claims in these petitions. MACP Nos.53/16, 54/16 & 55/16 Page no. 7 of 50 However, since these petitions arise out of the same accident, the same have been taken up by this tribunal together for disposal to avoid any conflict in appreciation of evidence and decision.
14. I have heard the arguments advanced by Sh.Pankaj Kumar Deval, Ld. Counsel for the claimants, Sh.Nishant Sharma, Ld. Counsel for R-1, Sh.Lalit Kumar Dhingra, Ld. Counsel for R-5 and Sh.Pradeep Kumar, Ld. Counsel for R-6. I have also perused the entire material available on record, including the written submissions filed on behalf of some of the parties. However, none has turned up for R-2, R-3 and R-4 to address any arguments. My issue-wise findings are as under:-
ISSUE NO.1
15. 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 by preponderance of probabilities only and not by strict rules of evidence or beyond reasonable doubts as are required in a criminal prosecution. The burden of proof in a civil case is never as heavy as that is required in a criminal case, but in a claim petition under the Motor Vehicles Act, this burden is infact even lesser than that in a civil case.
16. In case Bimla Devi and others Vs. Himachal Road Transport Corporation and others (2009) 13 SC 530, it has been observed by the Hon'ble Supreme Court that in a road accident case, the strict principles of proof as in a criminal case are not attracted. Relevant portion of the said judgment is reproduced as under:-
"15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The MACP Nos.53/16, 54/16 & 55/16 Page no. 8 of 50 claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. For the said purpose, the High Court should have taken into consideration the respective stories set forth by both the parties."
17. These observations were also quoted with approval in the subsequent judgment of the Hon'ble Supreme Court in case Parmeshwari Vs. Amir Chand and others 2011 (1) SCR 1096 (Civil Appeal No.1082 of 2011) and also recently in another case Mangla Ram Vs. Oriental Insurance Co. Ltd. & Ors., 2018 Law Suit (SC) 303.
18. As already discussed above, identical issues in all these three cases were framed by this tribunal and the first issue framed is at to whether the above three deceased persons received fatal injuries in the above accident caused by rash and negligent driving of the above car bearing no.UP-16TC-0434 by R-2, which was insured with R-1, and the above tractor having Engine no.S325-1D 04639 driven by R-3, owned by R-4 and insured with R-5. This issue automatically includes the question as to if there was any rashness or negligence on the part of drivers of both the vehicles or one of them.
19. So far as involvement of the above car in the accident, the driver and ownership thereof are concerned, the same have not been disputed and the oral as well as documentary evidence led on record also duly shows that the said car was being driven by R-2 Roshan Kainthola at the time of accident and it was owned by the deceased Deepak Kainthola of MACP No.55/16 and further that it was insured with R-1, i.e. National Insurance Co. Ltd. However, the alleged rashness or negligence on the part of R-2 in driving the said car has been disputed by the Ld. Counsel representing R-1. Though, MACP Nos.53/16, 54/16 & 55/16 Page no. 9 of 50 no WS on behalf of R-2 was filed in the matters, but even despite that the petitioners are bound to prove atleast by the principle of preponderance of probabilities that R-2 was rash or negligent in driving the said car in any manner and causing the said accident, either exclusively or alongwith driver of the above tractor, before their claims can be allowed against R-1 & R-2.
20. However, in this regard, evidence led on record reveals that the petitioners have miserably failed to prove any rashness or negligence on the part of R-2 in driving the said car at the relevant time of accident because there is no oral or documentary evidence led by them to prove this fact. It is observed that though in the claim petitions, it has been alleged by the petitioners that the above car was being driven by R-2 Roshan Kainthola at very high speed, rashly and negligently, without blowing any horn and while neglecting the traffic rules, but except the above bald allegations, there is no other material brought on record to substantiate the same.
21. It is found that fathers of the three deceased have been examined on record in their evidence by the petitioners as PW1 in their respective claim petitions, but admittedly none of them is an eye-witness of the above accident. It is also found that one Mahender Singh Bisht was examined as PW2 on record of MACP No.53/16 qua the deceased Sandeep Balodi on 09.04.2015 and on the same day, vide separate orders passed in other two petitions, his statement was also permitted to be read in the other two cases. He is an eye-witness of the above accident and is also stated to have been traveling in the same car at the time of accident and he also received some injuries in the accident. However, it is observed that even this witness has not made any incriminating depositions at all against R-2 and did not hold R-2 responsible for the said accident and did not MACP Nos.53/16, 54/16 & 55/16 Page no. 10 of 50 support the case of petitioners in this regard.
22. It is observed that PW2 has tendered on record his examination in chief by way of an affidavit Ex.PW2/A, in which he specifically claimed that on the above date, time and place, he was traveling in the same car being driven by R-2, alongwith above three deceased, when it had suddenly collided with a tractor make Massey bearing engine number S325-ID04639 and chassis number 625367. He further stated that the three deceased persons sustained grievous injuries in the above accident and their injuries proved to be fatal, though some injuries were also suffered by him and R-2 in the said accident. He also stated in clear and specific terms that the said accident was caused due to rashness and negligence on the part of Pitam Singh/R-3, who drove the above tractor. He further stated about registration of the above criminal case about this accident on the statement of one Kundan Singh, who is brother of the deceased Satish of MACP No.54/16.
23. During his cross-examination conducted on behalf of R-4, he also stated that he was sitting on backside of the driver in the said car and he also denied the suggestion given to him by Ld. Counsel for R-4 that the said accident occurred due to negligence of driver of their car. He was also cross examined at length by Ld. Counsel for R-5, but during his such cross examination also nothing material could be extracted out from him, which could have the effect of challenging or controverting his depositions made in his examination in chief and he again denied the suggestions that he had not seen the accident or that was not an eye-witness thereof or their car was being driven at very speed and further that he was deposing falsely as the deceased was his neighbour. It has also emerged during his cross-examination conducted on behalf of R-1 that one trolley was MACP Nos.53/16, 54/16 & 55/16 Page no. 11 of 50 attached with the above tractor and tractor was being reversed at that time and further that no light or rear light of the tractor trolley was on or blinking at that time and trolley was on left side of the road. He also stated it to be correct that there was no fault on the part of driver of the car in causing the said accident and the accident took place due to rashness and negligence of driver of the tractor trolley.
24. Hence, simply because no MLC or other record of treatment of this witness has been produced in evidence and further that since he also admitted that his statement was not recorded by the police regarding the said accident, his testimony cannot be disbelieved or discarded by this tribunal as his name is found to be recorded in FIR of the above criminal case, which has been proved on record as Ex.R1W1/1 (colly), as one of the persons traveling in the said car. Again, the oral testimony of this witness is also found to be duly corroborated from the contents of the certified copies of FIR, charge-sheet as well as site plan showing the place of accident of the above criminal case, which have been brought on record as Ex.R1W1/1 (colly), having been tendered by R1W1 Sh.Vijay Kumar Manjhi. It is found that R-3 Pitam Singh, i.e. driver of the tractor, stands already chargesheeted for the offences punishable under Sections 279/337/338/304A/427 IPC and 39/207 of the MV Act in the above criminal case in respect of the above accident on allegations, inter-alia, for causing death of the above three deceased and injuries to other persons by his rash and negligent driving of the above tractor.
25. Therefore, it is held that the evidence led on record does not show or establish any rash or negligence driving on the part of R- 2 in driving the above car or causing the above accident. The submission of Ld. Counsel for R-5 regarding there being a MACP Nos.53/16, 54/16 & 55/16 Page no. 12 of 50 contributory or composite negligence on the part of R-2 is also without any merits as the evidence led on record does not substantiate the same.
26. Now coming to the identity and ownership etc. of the above tractor involved in the accident, the statements of PW1 and PW2, as well as contents of the above documents of criminal case Ex.R1W1/1 (colly), clearly show that the said tractor was having engine number S325-ID04639 and chassis number 625367, though it was not bearing any registration number. R-3 is alleged to be driver of the said tractor and R-4 to be owner thereof and in his WS filed on record, R-4 has also specifically admitted the fact that the said tractor was owned by him. He further claimed that it was insured with R-5, i.e. Oriental Insurance Co. Ltd., vide policy no.253903/31/2013/3396 for the period from 07.11.2012 to 06.11.2013. It has also come on record through his WS and evidence that this tractor was subsequently registered by the concerned Transport Authority with number UP-20AE-6757.
27. On the other hand, it is the case of R-5/Oriental Insurance Co. Ltd. that the above insurance policy does not pertain to the above tractor make Massey and bearing the above engine and chassis numbers and the same was issued by their office in respect of a Tafe tractor having engine no. D09071 and chassis no. 628163 in the name of PNB Nagina A/c No. AU-742 of Vivek Kumar. However, it has been admitted by them in their WS itself that an endorsement was also subsequently made by them on the said policy w.e.f. 01.01.2013 to the effect that the correct engine number of the said tractor is D04639 instead of D09071 and chassis number is 625367 instead of 628163 and insured name was also corrected vide this endorsement as PNB Nagina A/c No. AU-742 of Arvind MACP Nos.53/16, 54/16 & 55/16 Page no. 13 of 50 Kumar instead of Vivek Kumar.
28. As stated above, Arvind Kumar is R-4 in these petitions and Vivek Kumar has been impleaded as R-6 and they both are father and son respectively. To substantiate their defence, R-5 has also examined on record two witnesses namely Sh. Prakash Chand Pathak as R5W1 and Sh. Prem Singh as R5W2. R5W1 is an official of the concerned Transport Authority Bijnaur and R5W2 is the Branch Manager of R-5 Co. working in their local branch.
29. R5W1 has produced in evidence extracts of one DL in the name of R-3 Pitam Singh as Ex.R5W1/B (colly-2pages) and the entire file pertaining to registration of the tractor having engine number 04639 and chassis number 625367, which was actually involved in the accident, as Ex.R5W1/C (colly-42 pages). During the course of depositions made by this witness, it has come on record that this tractor was purchased by R-4 Arvind Kumar on 25.07.2011 from the local dealer namely M/s. Parashar Machines & Tractors, but it was actually registered with their authority only on 18.03.2013 vide registration certificate available on page no.12 of the documents Ex.R5W1/C (colly.) (copy of RC also available on page no.25 thereof) and this tractor was given registration number UP-20AE- 6757. He also stated it to be correct that two different engine numbers, i.e. D09071 & D04639, and chassis numbers 628163 & 625367 of this tractor were available on their record, but he stated that the engine no. D09071 and chassis no. 628163 were subsequently corrected to as engine number D04639 and chassis number 625367. He also stated that in clear and specific terms that the insurance co. had earlier noted the numbers wrongly and hence, two different sets of numbers are available on their record and the same were corrected by them subsequently. Copies of the bill of MACP Nos.53/16, 54/16 & 55/16 Page no. 14 of 50 purchase of this vehicle in name of R-4 as well as of insurance policy of the vehicle issued by R-5 for the period from 07.11.2012 to 06.11.2013 (pages 39-42), alongwith endorsement dated 01.01.2013, were also placed by him on record as part of the said documents Ex.R5W1/C (colly.)
30. R5W2 Sh.Prem Singh has tendered his examination in chief by way of an affidavit Ex.R5W2/A, alongwith documents Ex.R5W2/1 to Ex.R5W2/19. The documents Ex.R5W2/1 to Ex.R5W2/10 are notices under Order 12 Rule 8 CPC dated 25.06.2015 issued by their office to the Manager, PNB Nagina, R-4 Arvind Kumar and R-6 Vivek Kumar, with postal receipts thereof, regarding production of the original insurance certificates and policies etc. of the above Tafe tractor bearing engine no. D09071 and chassis no. 628163 for the periods w.e.f. 23.09.2011 to 22.09.2012 and 07.11.2012 to 06.11.2013. Ex.R5W2/11, Ex.R5W2/12 and Ex.R5W2/13 (Ex.R5W2/13 is the page containing the above endorsement on policy Ex.R5W2/12) are the attested copies of the two original polices of this Tafe tractor for these two durations. Ex.R5W2/14 to Ex.R5W2/16 are certified/attested copies of the documents pertaining to the criminal case and Ex.R5W2/17 is the information furnished by them to the Licencing Authority regarding DL of R-3. Ex.R5W2/18 is the verification report regarding RC particulars of this Tafe tractor and Ex.R5W2/19 is a copy of one bill in the name of R-6 Vivek Kumar dated 30.04.2011 for purchase of the above Tafe tractor.
31. It is the contention of Ld. Counsel for R-5 that the bill Ex.R5W2/19 and the depositions made by this witness clearly show that this Tafe tractor having engine no. D09071 and chassis no. 628163 was actually purchased by R-6 Vivek Kumar, son of R-4 MACP Nos.53/16, 54/16 & 55/16 Page no. 15 of 50 Arvind Kumar, and not by Arvind Kumar and it is this tractor which they had actually insured vide the above policies Ex.R5W2/11 and Ex.R5W2/12 for the above two periods/durations respectively and not the other tractor having engine number D04639 and chassis number 625367, which is stated to have been purchased in the name of R-4 Arvind Kumar. To substantiate this fact, he has also referred to certain depositions made by R-6 Vivek Kumar, who has examined himself on record as R6W1. It is found that during his cross examination, it has come on record that the above Tafe tractor was actually purchased by him vide the above bill Ex.R5W2/19 dated 30.04.2011, but it is also observed that according to this witness he had returned back the said tractor to the above dealer M/s Parashar Machines & Tractors as he was expected to get a tractor in his marriage.
32. Though, no documents pertaining to this return/sale or purchase of this tractor by R-6 back to above dealer have come on record, but his these depositions are also found to be duly corroborated from the depositions made by R6W2 Sh. Ramanand Kapil, who was also examined by him in his defence and this witness is an official of the above agency/dealer and he has confirmed on record that the above Tafe tractor sold to R-6 by their agency vide document Ex.R5W2/19 was returned back to them. He also stated on record that this Tate tractor was subsequently sold by them to one Charan Singh after 2-3 months of its return and he has also filed on record certain documents pertaining to the above transaction as Mark R6W2/1 (colly), which include copies one bill dated 22.07.2011 of sale thereof in the name of Charan Singh and RC of the said tractor in his name with registration no. UP-20Z-8831. He further stated on record that R-4 Arvind Kumar, i.e. father of R-6, has also MACP Nos.53/16, 54/16 & 55/16 Page no. 16 of 50 purchased one tractor from them vide bill dated 25.07.2011 Mark D [copy of which was also earlier produced as part of documents Ex.R5W1/C (colly.)] and also stated that this tractor purchased by R- 4 was bearing engine number D04639 and chassis number 625367. He also stated in clear and specific terms that though the tractor which R-6 has purchased was by way of cash, but R-4 has got it financed from PNB and they had provided all the documents pertaining to the tractor of R-4 to PNB to facilitate the advance. He further stated that the original records of these documents stood destroyed due to floods.
33. It is found that R-6 has also examined on record one other witness Sh.Deepak Prakash Sethi as R6W3 and this witness is from Nagina Branch of PNB and has produced on record the complete copies of the loan file pertaining to the tractor financed by them in account/name of Arvind Kumar/R-4 as Ex.R6W3/A (colly 168 pages). He has also stated it clearly that initially this tractor was insured vide policy number 253903/31/2012/2247 issued on 23.09.2011 in the name of Vivek Kumar and it was valid upto 22.09.2012 and chassis and engine numbers thereof were also written in the said policy as 628163 and D09071 respectively (available on pages no. 74 to 76 of Ex.R6W3/A) (copy of which is also Ex.R5W2/11 on record). He further stated that the second policy bearing no.253903/31/2013/3396 of the vehicle is available on pages 71 to 73 of Ex.R6W3/A (colly) (which is also Ex.R5W2/12 on record) and it was issued on 07.11.2012 in the name of R-6 Vivek Kumar and was valid upto 05.11.2013 (it should be 06.11.2013) with the same chassis and engine numbers. However, he has also stated it specifically that the above engine and chassis numbers of the tractor in these two policies were given wrongly and it was also wrongly MACP Nos.53/16, 54/16 & 55/16 Page no. 17 of 50 stated to be of account of R-6 Vivek Kumar instead of R-4 Arvind Kumar and hence, these details were subsequently corrected by the Insurance Co. He also claims that they have even sent one e-mail [on page no.92 of Ex.R6W3/A (colly)] in this regard to the concerned Insurance Co. leading to correction of the said particulars vide the endorsement dated 01.01.2013 made on the said policy.
34. Further, R-6 during his testimony has also brought on record a photocopy of one handwritten application as Mark B addressed to Manager of the said bank seeking information about the above policy of the tractor got financed through the said bank in the name of his father and some endorsement by the bank official concerned is also found to be made on this application itself, which is to the effect that the above loan account of the holder Arvind Kumar was in respect of the tractor bearing engine number S325 ID04639 and chassis number 625367. Copy of the one separate certificate of the bank in this regard is also found to have been placed on record as Mark E by R-6 and attested copies of these documents are also found to have been produced on record by him as part of the documents Ex. R6W3/A (colly).
35. Hence, it emerges from the above testimonies of R5W1, R5W2, R6W1, R6W2 and R6W3 that the above two tractors, i.e. one of make Tafe and the other of make Massey Ferguson, are two separate vehicles and tractor make Tafe was though purchased by Vivek Kumar/R-6 vide bill Ex.R5W2/19 in cash from the above dealer, but it was returned back by him to the above dealer and it was subsequently sold and registered with number UP-20Z-8831 (as per Ex.R5W2/18) in the name of above Charan Singh, while the tractor make Massey, which is actually involved in the accident of present cases, was purchased by R-4 Arvind Kumar vide bill dated MACP Nos.53/16, 54/16 & 55/16 Page no. 18 of 50 25.07.2011 and it was registered much later on 18.03.2013 in the name of Arvind Kumar vide registration no.UP-20AE-6757, as is clear from the document available on page no.12 of the document Ex.R5W1/C (colly). It is this tractor which was actually got financed from PNB Nagina in the name of R-4.
36. It also emerges from the above evidence that it was actually the tractor purchased by R-4 Arvind Kumar, which was insured by R-5 initially for the period w.e.f. 23.09.2011 to 22.09.2012 vide policy Ex.R5W2/11 and then from 07.11.2012 to 06.11.2013 vide policy Ex.R5W2/12 and the mention of the loan account no. AU- 742 of PNB Nagina in these polices with reference to the name of R- 6 Vivek Kumar was only due to some clerical mistake as it appears that the officials of the above agency/dealer have inadvertently sent a copy of the bill dated 30.04.2011 issued in the name of R-6 for purchase of the Tafe tractor to the bank officials and they have forwarded it further to the Insurance Co. This mistake was duly corrected by the Insurance Co. in their documents, on the basis of the above clarifications furnished by the bank authorities, and it is the reason why the endorsement on the said policy Ex.R5W2/13 was made by them and the engine number, chassis number and the make of the above tractor were corrected therein and substituted with the correct engine and chassis numbers of above tractor of make Massey and even the account reference of the loan holder was changed from Vivek Kumar to Arvind Kumar.
37. It is the contention of Ld. Counsel for the Insurance Co./R-5 that the above endorsements should only be read and taken into effect w.e.f. 01.01.2013, as is also stated in the policy itself, and it should be considered as valid for the remaining period of the police till 06.11.2013 and it cannot be given effect from the date of MACP Nos.53/16, 54/16 & 55/16 Page no. 19 of 50 commencement of the said policy i.e. 07.11.2012. However, this submission of Ld. Counsel for R-5 is without any merits as the endorsement made on the said policy for incorporating/correcting the details and particulars of the insured vehicle and person etc. are bound to have effect from the date of commencement of the policy itself and not from the date on which the endorsement was made as once the company has issued the policy after accepting the premium and has even acknowledged its mistake in mentioning the correct particulars of the insured, they cannot escape from their liability under the said policy as the correction should take effect from the date of commencement of the policy itself.
38. Hence, on basis of the above oral and documentary evidence it can be said that the tractor involved in the above accident was bearing engine number S325-ID04639 and chassis number 625367 and it was owned by R-4 and insured with R-5.
39. Now coming to the alleged rash and negligent driving on the part of R-3, who was driving the said vehicle, it has already been stated above that the above criminal case about this accident was registered against him only and he already stands chargesheeted in the said case for the offences, inter-alia, for causing death of the above three deceased. Even PW2 Mahender Singh Bisht has made specific depositions on record attributing rashness and negligence on the part of R-3 in driving the above tractor and causing the said accident. Moreover, as also discussed above, since R-3 has not come forward to join these inquiries or to file any reply to these petitions, an adverse inference can also be drawn against the respondents on this aspect in view of the law laid down in the case of Cholamandalam M.S. General Insurance Company Ltd. Vs. Kamlesh, reported in 2009 (3) AD (Delhi) 310.
MACP Nos.53/16, 54/16 & 55/16 Page no. 20 of 50
40. Therefore, in view of the above factual and legal discussion, it is held that the oral evidence led on record by the petitioners is duly substantiated by the documentary evidence and it stands proved that the above accident resulting into death of the deceased Sandeep Balodi, Satish Kumar and Deepak Kainthola was caused due to rash and negligent driving of the above offending tractor bearing engine number S325-ID04639 and chassis number 625367, which was owned by R-4 and insured with R-5. This issue is accordingly decided in favour of the petitioners and against the respondents.
41. ISSUE NO.2 "Whether the petitioners are entitled for compensation? If so, to what amount and from whom?"
As the rashness and negligence on the part of driver of the above offending tractor/R-3 has been satisfactorily proved, the petitioners have become entitled to be compensated for the deaths of their above family members in the said accident, but the computation of compensation and liability to pay the same are still required to be decided. The compensation to which the petitioners are entitled shall be as under the following heads:-
42. COMPENSATION IN MACP No. 53/16
i) Loss of dependency PW1 Sh. Gopal Dutt, who is father of the deceased Sandeep Balodi, in his affidavit Ex.PW1/A filed by way of his examination in chief has stated that his deceased son was unmarried and aged around 25 years at the time of accident. He has also tendered on record, inter-alia, copies of the mark-sheets of High School and Senior Secondary examinations of the deceased as Ex.PW1/1 and Ex.PW1/9 respectively and also copies of the election MACP Nos.53/16, 54/16 & 55/16 Page no. 21 of 50 identity card and ration card of the deceased as Ex.PW1/3 and Ex.PW1/6 respectively. It is observed that no age or date of birth of the deceased has been mentioned in the document Ex.PW1/9, but date of birth of the deceased is found to have been mentioned as 18.08.1989 in the document Ex.PW1/1 and as per this document, his age on the date of accident comes to 23 years and around 4½ months. His age as per the election identity card Ex.PW1/3 comes to around 24 years as age of the deceased in this document is shown as 18 years on 01.01.2007. The ration card Ex.PW1/6 also shows his age as 18 years, but on 10.09.2005, when the said ration card is stated to have been issued, and going by this document, the age of the deceased comes to 25 years and around 3½ months. Hence, in terms of the 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 in the Constitution Bench decision of the Hon'ble Supreme Court in the case National Insurance Company Ltd. Vs. Pranay Sethi & Ors. SLP (Civil) No. 25590 of 2014, decided on 31.10.2017 and also reiterated by a Three Judges Bench of the Hon'ble Supreme Court in its subsequent judgment dated 09.02.2018 in Civil Appeal No. 7176/2015 in the case of Sube Singh & Anr. Vs. Shyam Singh (Dead) & Ors. and followed by the Hon'ble Delhi High Court in its various decisions, including the judgment dated 05.04.2018 passed in MACA No.94/18 in the case K.L. Jadhav & Ors. Vs. Abhishek & Ors., the multiplier in case of an unmarried deceased shall be as per the age of the deceased himself and not according to the age of his parents. Further, in view of the judgment of the Hon'ble Delhi High Court in the case of New India Assurance Co. Ltd. Vs. Harsh Wardhan & Ors., MAC App. No. 521/2008 decided on 20.07.2017, the nearest MACP Nos.53/16, 54/16 & 55/16 Page no. 22 of 50 multiplier as per the age group is to be applied. Since, the age of the deceased in this case was though above 25 years but less than 25 ½ years, the multiplier of '18' is held applicable in the present case.
PW1 in his above affidavit has also claimed that his deceased son was working with M/s. Vipul Finvest Ltd. having its office at the given address of Patparganj, Mayur Vihar, Phase-1, Delhi as a Field Executive and he was drawing a salary of Rs.14,000/- per month. Further, he has also tendered in evidence, a copy of one appointment letter of the deceased as Ex.PW1/7 and also one salary certificate as Mark-A and these are stated to have been issued by the above company, but the exhibition of the document Ex.PW1/7 was objected to on behalf of the respondents and no record or register has been summoned from the office of the above company by the petitioners of this case to substantiate their above claims. Hence, their claim for dependency is required to be calculated only as per the minimum wages fixed for workers as applicable at the relevant time of accident.
The document Ex.PW1/2 though shows that the deceased passed senior secondary school examination from Open Schooling, but the evidence does not show that he possessed any technical or skilled qualifications. There is also no document on record to show that at the relevant time of accident he was residing or working in Delhi and rather his election identity card Ex.PW1/3, election identity card of his mother/P-1 Ex.PW1/5 and their ration card Ex.PW1/6 are all found to be issued at their address of Gautam Budh Nagar, U.P. Hence, the minimum wages of unskilled workers as applicable in the State of U.P. at the relevant time of accident are attracted in the present case as there was no separate class of matriculates or senior secondary school passed persons prescribed MACP Nos.53/16, 54/16 & 55/16 Page no. 23 of 50 for wages in the above State. The monthly earnings for unskilled workers at the relevant time of accident in U.P. were Rs.4,677/- per month (rounded off), which include the minimum wages of Rs.2,600/- and Rs.2,077.01 as variable dearness allowance.
Coming to the dependency upon the deceased, it is observed that it is an admitted case of the petitioners that father of the deceased, i.e. PW1/P-2, is employed and as per copy of his office identity card Ex.PW1/ 4, he is working as LDC with Ministry of Health and Family Welfare, Government of India. Hence, in view of the law already discussed, P-2 cannot be treated as a dependent upon the deceased at the time of accident and only his mother/P-1 was dependent upon him. However, even otherwise, since the deceased was unmarried, in terms of the law laid down by the Hon'ble Supreme Court in the cases of Sarla Verma and Pranay Sethi & Ors. (Supra), 50% of his earnings will be deducted towards his personal and living expenses.
Further, in view of the above Constitution Bench decision in the case of Pranay Sethi (supra) and judgment dated 02.11.2017 of the Hon'ble Delhi High Court in MACA No.798/2011 in the case Bajaj Allianz General Ins. Co. Ltd. Vs. Pooja & Ors., future prospects are also to be given in cases of persons working on fixed salary, those employed on contract basis and to labourers working on minimum wages and hence, 40% of above amount of earnings is also liable to be added to earning of the deceased as future prospects since he was below 40 years of age at the time of accident.
Thus, the loss of dependency qua deceased in the present case comes to Rs.7,07,162.40 (Rs.4,677/- X 140/100 X 50/100 X 12 X 18) and the said amount is being awarded to the MACP Nos.53/16, 54/16 & 55/16 Page no. 24 of 50 petitioners under this head.
(ii) COMPENSATION UNDER NON-PECUNIARY HEADS The compensation to be granted in case of a death arising from a road accident under the non-pecuniary heads of loss of estate, loss of consortium, funeral expenses etc. came for active consideration before the Hon'ble Supreme Court in the above Constitution Bench judgment in the case of Pranay Sethi (Supra). Since, the deceased was unmarried, in terms of the propositions laid down by the Hon'ble Supreme Court in the said case, the petitioners are also held entitled to amounts of Rs. 15,000/- each under the heads of loss of estate and funeral expenses. However, no compensation can be awarded to the petitioners under any other head like loss of love and affection etc. being claimed by Ld. Counsel for the petitioners, in view of the law laid down in the above judgment and also followed by the Hon'ble Delhi High Court in its various judgments including the recent decision in the case of Bajaj Allianz General Insurance Co. Ltd. Vs. Pooja & Ors. (Supra). Hence, the petitioners are also awarded a total sum of Rs. 30,000/- under the above two heads.
The petitioners of MACP No.53/16 are thus held entitled to the compensation as given in the following summary of computation in the prescribed format:-
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN FORM IV-A
1. Date of accident : 29.12.2012
2. Name of the deceased : Sandeep Balodi
3. Age of the deceased : Between 25 - 25 ½ years
4. Occupation of the deceased : Unskilled worker
5. Income of the deceased : As per Minimum wages of U.P.
6. Name, age and relationship of legal representative of deceased:-
Srl. No. Name Age Relation
(i) Smt. Soma Devi 48 years Mother
MACP Nos.53/16, 54/16 & 55/16 Page no. 25 of 50
(i) Sh. Gopal Dutt 60 years Father
Computation of Compensation
Srl. No. Heads Amount Awarded
7. Income of the deceased (A) Rs. 4,677.00
8. Add-Future Prospects (B) Rs. 1,870.80
9. Less-Personal expenses of Rs. 3,273.90
the deceased (C)
10. Monthly loss of dependency Rs. 3,273.90
[(A+B) - C = D]
11 Annual loss of dependency Rs.39,286.80
(D x 12)
12 Multiplier (E) 18
13 Total loss of dependency (D Rs.7,07,162.40
x 12 x E = F)
14 Medical Expenses (G) Nil
15 Compensation for loss of Nil
love and affection (H)
16 Compensation for loss of Nil
consortium (I)
17 Compensation for loss of Rs.15,000/-
estate (J)
18 Compensation towards Rs.15,000/-
funeral expenses (K)
19 TOTAL COMPENSATION Rs.7,37,162.40
(F + G + H + I + J+K =L)
20 RATE OF INTEREST 9% pa from date of filing of
AWARDED petition i.e. 22.08.2013 till
30 days from today and
12% pa thereafter.
21 Interest amount up to the date Rs.3,45,173.77
of award (M)
22 Total amount including interest Rs.10,82,336.17
(L+M) being rounded off to
Rs.10,83,000/-
23 Award amount released P-1 = 10% out of entire
compensation
24 Award amount kept in FDRs P-1 = 90% out of entire
compensation
25 Mode of disbursement of the Through bank
MACP Nos.53/16, 54/16 & 55/16 Page no. 26 of 50
award amount to claimant(s)
26 Next date for compliance of the 07.02.2019
award
RELIEF
The petitioners of MACP No.53/16 are thus awarded a sum of Rs.10,83,000/- (Rupees Ten Lacs Eighty and Three Thousand only), including interest @ 9% per annum from the date of filing of claim petition, i.e. 22.08.2013, till date and interest at the same rate till 30 days from today or till notice of deposit is given to the petitioners, whichever is earlier and 12% per annum after expiry of 30 days from today. 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 above amount and calculations of compensation.
APPORTIONMENT As discussed above, since P-2 is not considered as dependent upon the deceased at the time of his death, the entire compensation amount is being awarded in favour of P-1 Smt. Soma Devi.
RELEASE Out of the entire compensation amount, 10% amount, alongwith interest till deposit and after deducting tax on the interest amount or amount of interim award, if any, is directed to be released to P-1 by transferring it into her savings bank account bearing no. 3678473486 being maintained at Central Bank of India, Sector 22 Noida Branch, U.P. with IFSC Code No. CBIN0283523 and remaining 90% amount is directed to be kept in 10 equal annual FDRs for a period of 1 year to 10 years in succession with cumulative interest. The amount of FDRs on maturity would also be MACP Nos.53/16, 54/16 & 55/16 Page no. 27 of 50 released in her same account.
The bank shall not permit any joint name (s) to be added in the above savings bank accounts or fixed deposit accounts of P-1 i.e. the savings bank account of the claimant shall be individual savings bank account and not a joint account (s). However, the concerned bank shall permit the claimant to withdraw money from her above savings bank account by means of a withdrawal form.
The original fixed deposits shall be retained by the UCO Bank, PHC, New Delhi in safe custody. However, the statement containing FDR numbers, FDR amounts, dates of maturity and maturity amounts shall be furnished by bank to the claimant.
The maturity amounts of the FDRs be credited by Electronic Clearing System (ECS) in the above mentioned savings bank account of the claimant.
No loan, advance or withdrawal or pre-mature discharge be allowed on the fixed deposits without permission of the Court.
P-1 has already produced before this tribunal her original passbook with requisite endorsements of the Bank Manager concerned that no cheque books or ATM cards shall be issued to her in the said account and she has also filed copies thereof on record, alongwith copies of her aadhar card and PAN card. It is directed that the concerned bank shall not issue any cheque book and/or debit card etc. to the claimant in future also.
43. COMPENSATION IN MACP No.54/16
i) Loss of dependency As already discussed above this MACP No.54/16 is in respect of the claim for compensation about death of Satish Kumar. PW1 Sh.Khachedu Singh Rana, who is father of the above MACP Nos.53/16, 54/16 & 55/16 Page no. 28 of 50 deceased, in his affidavit Ex.PW1/A filed by way of his examination in chief has stated that his deceased son was aged around 30 years at the time of accident. He has also tendered on record, inter-alia, copies of the High School examination mark-sheet & certificate, passport and election identity card of his deceased son as Ex.PW1/1, Ex.PW1/2, Ex.PW1/15 and Ex.PW1/16 respectively. It is observed that in his election identity card Ex.PW1/16, his date of birth is not mentioned and only his age as on 01.01.2007 is mentioned as 23 years and going by this document, his age at the time of accident comes to around 29 years. However, this age of the deceased cannot be accepted as his date of birth is specifically found to be mentioned in the other documents Ex.PW1/1, Ex.PW1/2 and Ex.PW1/15 as 10.07.1980 and on the basis of these documents, his age as on the date of accident comes to 32 years and around 5½ months. Even PW1 during his cross examination has stated the date of birth of deceased as 10.07.1980. Hence, in terms of the case law already discussed above, the multiplier of '16' is held applicable in the present case.
As per the depositions made by PW1 in his above affidavit Ex.PW1/A, his son was highly qualified as he had obtained BA and MBA degrees and his future was very bright. He further stated that his son was engaged in his own business and earning around Rs.50,000/- per month and his earnings were increasing with passage of time, but he has not brought any document or material on record to substantiate his above claims about his son being engaged in any business or earning around Rs.50,000/- per month or even any other amount from the said business. However, he has duly tendered on record, besides the above documents, copies of the 12th class mark-sheet & certificate of CBSE of his deceased son as MACP Nos.53/16, 54/16 & 55/16 Page no. 29 of 50 Ex.PW1/3 & Ex.PW1/4 respectively, copies of his mark-sheets from first to sixth semesters of BCA Course from Ch. Charan Singh University, Meerut as Ex.PW1/5 to Ex.PW1/10 and copies of mark- sheets & degree certificate for two years Masters course in Business Administration from Uttar Pradesh Technical University, Lucknow as Ex.PW1/11 to Ex.PW1/13.
Hence, since the deceased was highly qualified and had obtained a degree in the technical field of computer applications and also a masters degree in Business Administration, his capability to earn or notional earnings at the relevant time of accident can be taken as Rs.20,000/- per month.
Coming to the dependency upon the deceased, it is observed that this claim petition has been filed by the three petitioners, i.e. P-1 Smt. Shashi, wife/widow, P-2 Baby Yashika, minor daughter and P-3/PW1 Sh. Khachedu Singh Rana, father of the deceased. The relationship of P-1 & P-2 with the deceased is duly established from the documents Ex.PW1/17 and Ex.PW1/18 respectively, which are copies of one birth certificate of P-2 and election identity card of P-1 respectively, even though their names are not stated to be mentioned in the ration card Ex.PW1/21 of the family of deceased. Though, PW1/P-3, i.e. father of the deceased has claimed himself to be a dependent upon his deceased son Satish Kumar at the time of accident, but during his cross- examination, he specifically admitted that he is an agriculturist by profession and owns 100 bighas of agricultural land. Hence, in view of the law already discussed, he cannot be treated as a dependent upon his deceased son at the time of accident and only P-1 & P-2 are being treated as dependents and in view of the above legal position, 1/3rd amount of earnings of the deceased is liable to be MACP Nos.53/16, 54/16 & 55/16 Page no. 30 of 50 deducted towards his personal and living expenses and 40% of above amount of earnings is liable to be added as future prospects since he was below 40 years of age at the time of accident.
Thus, the loss of dependency qua deceased in the present case comes to Rs.35,84,000/- (Rs.20,000/- X 140/100 X 2/3 X 12 X 16) and the said amount is being awarded to the petitioners under this head.
(ii) COMPENSATION UNDER NON-PECUNIARY HEADS The compensation to be granted in case of a death arising from a road accident under the non-pecuniary heads of loss of estate, loss of consortium, funeral expenses etc. came for active consideration before the Hon'ble Supreme Court in the above Constitution Bench judgment in the case of Pranay Sethi (Supra) and in terms of the propositions laid down by the Hon'ble Supreme Court in the said case, the petitioners are also held entitled to amounts of Rs. 15,000/-, Rs.40,000/- and Rs. 15,000/- respectively under the above three heads. However, no compensation can be awarded to the petitioners under any other head like loss of love and affection etc. being claimed by Ld. Counsel for the petitioners, in view of the law laid down in the above judgment and also followed by the Hon'ble Delhi High Court in its various judgments including the recent decision in the case Bajaj Allianz General Insurance Co. Ltd. Vs. Pooja & Ors (Supra). Hence, the petitioners are also awarded a total sum of Rs. 70,000/- under the above three heads.
The petitioners of MACP No.54/16 are thus held entitled to the compensation as given in the following summary of computation in the prescribed format:-
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN FORM IV-A
1. Date of accident : 29.12.2012
2. Name of the deceased : Satish Kumar MACP Nos.53/16, 54/16 & 55/16 Page no. 31 of 50
3. Age of the deceased :32 years & around 5 ½ months
4. Occupation of the deceased :Post graduate
5. Income of the deceased :As per capability to earn and notional earnings
6. Name, age and relationship of legal representative of deceased:-
Srl. No. Name Age Relation
(i) Smt.Shashi 32 years Widow
(ii) Baby Yashika 3 years Daughter
(iii) Sh. Khachedu Singh Rana 64 years Father
Computation of Compensation
Srl. No. Heads Amount Awarded
7. Income of the deceased (A) Rs. 20,000.00
8. Add-Future Prospects (B) Rs.8,000.00
9. Less-Personal expenses of the Rs.9,333.33
deceased (C)
10. Monthly loss of dependency Rs.18,666.67
[(A+B) - C = D]
11 Annual loss of dependency (D x Rs.2,24,000/-
12)
12 Multiplier (E) 16
13 Total loss of dependency (D x Rs.35,84,000/-
12 x E = F)
14 Medical Expenses (G) Nil
15 Compensation for loss of love Nil
and affection (H)
16 Compensation for loss of Rs.40,000/-
consortium (I)
17 Compensation for loss of estate Rs.15,000/-
(J)
18 Compensation towards funeral Rs.15,000/-
expenses (K)
19 TOTAL COMPENSATION Rs.36,54,000/-
(F + G + H + I + J+K =L)
20 RATE OF INTEREST AWARDED 9% pa from date of filing of
petition i.e. 22.08.2013 till 30
days from today and 12% pa
thereafter.
21 Interest amount up to the date of Rs.17,10,972.99
MACP Nos.53/16, 54/16 & 55/16 Page no. 32 of 50
award (M)
22 Total amount including interest Rs.53,64,972.99
(L+M) (rounded off to
Rs.53,65,000/-)
23 Award amount released P-1 = 10% of her share
P-2 = Nil
24 Award amount kept in FDRs P-1 = 90% of her share
P-2 = her entire share
25 Mode of disbursement of the award Through bank
amount to claimant(s)
26 Next date for compliance of the 07.02.2019
award
RELIEF
The petitioners of MACP No.54/16 are thus awarded a sum of Rs.53,65,000/- (Rupees Fifty Three Lacs Sixty Five Thousand only), including interest @ 9% per annum from the date of filing of claim petition, i.e. 22.08.2013, till date and interest at the same rate till 30 days from today or till notice of deposit is given to the petitioners, whichever is earlier and 12% per annum after expiry of 30 days from today. 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 above amount and calculations of compensation.
APPORTIONMENT Out of the total compensation amount, 80% amount is being awarded in favour of P-1 and remaining 20% amount is being awarded in favour of P-2.
RELEASE Out of the compensation amount awarded to P-1, 10% share, with upto date interest till deposit and after deducting proportionate tax & amount of interim compensation, if any, is directed to be released to her by transferring it into her savings MACP Nos.53/16, 54/16 & 55/16 Page no. 33 of 50 account bearing no.6717000100018766 being maintained at Punjab National Bank, Sector 63 Noida Branch, U.P. with IFSC Code No.PUNB0671700 and remaining 90% share is directed to be kept in 30 equal annual FDRs for a period of 1 year to 30 years in succession with cumulative interest. The amount of FDRs on maturity would also be released in her same account.
Entire share of P-2/minor daughter of the deceased shall be kept in FDR for the period till she attains 21 years of age or till her marriage, whichever is earlier. However, the monthly interest thereon shall be released in the above bank account of her mother/P-1 in order to meet her educational and other expenses and amounts of the FDR on maturity would be released in the saving bank account of P-2 opened/to be opened near the place of her residence in terms of the orders passed by this tribunal on 08.03.2018.
The bank (s) shall not permit any joint name to be added in the above savings bank accounts or fixed deposit accounts of the claimants/petitioners i.e. the savings bank accounts of the claimants shall be individual savings bank account and not a joint account.
The original fixed deposits shall be retained by the UCO Bank, PHC, NDD in safe custody. However, the statement containing FDR numbers, FDR amounts, dates of maturity and maturity amounts shall be furnished by the bank to the claimants.
The maturity amounts of the FDRs be credited by Electronic Clearing System (ECS) in the above savings bank accounts of the claimants.
The monthly interest be credited by Electronic Clearing System (ECS) in the above savings bank account of P-1.
No loan, advance or withdrawal or pre-mature discharge be allowed on the fixed deposits without permission of the Court.
P-1 has already produced before this tribunal her original MACP Nos.53/16, 54/16 & 55/16 Page no. 34 of 50 passbook with requisite endorsements/letter of the Bank Manager concerned that no cheque book or ATM card shall be issued to her above said account and she also filed copies thereof on record alongwith copies her aadhar card and PAN card of P-1. It is directed that the concerned bank shall not issue any cheque book and/or debit card to the petitioners in future also. However, these documents qua P-2 have not been filed and the same are directed to be filed on or before the date fixed for compliance and Nazir is directed to ensure compliance in this regard.
44. COMPENSATION IN MACP No. 55/16
i) Loss of dependency PW1 Sh.Kailash Chand Kainthola, who is father of the deceased Deepak Kainthola, in his affidavit Ex.PW1/A filed by way of his examination in chief has stated that his deceased son was unmarried and aged around 33 years at the time of accident. He has also tendered on record, inter-alia, copies of the passport, mark- sheet of High School examination, election identity card and PAN card of the deceased as Ex.PW1/4, Ex.PW1/5, Ex.PW1/13 and Ex.PW1/15 respectively. It is observed that in these documents, the date of birth of the deceased is found to be recorded as 22.04.1979 and going by this date, his age at the time of accident comes to 33 years and around 8 months. Hence, in view of the law already discussed, the multiplier of '16' shall be applicable in the present case.
PW1 in his above affidavit has also claimed that his deceased son was highly qualified and experienced in the job of software engineer and he had worked with Sara Lee Sourcing Pvt. Ltd. Bangalore. He has also stated that the deceased was also MACP Nos.53/16, 54/16 & 55/16 Page no. 35 of 50 working as a Software Engineer cum Consultant with company namely Lamour Global Ltd., Hong Kong, 8 th Floor, Henley Building, 5 Queen's Rd. Central, Hong Kong, China and thereafter with the same company at 55, Louvain St. W. Suit 200, Montreal, Quebec, Canada as Field Executive for Asia and drawing approximately $ 57,715 per annum and it was increasing with the passage of time.
Besides the above High School certificate of his deceased son Ex.PW1/5, he is also found to have tendered on record and relied upon his Senior School certificate examination as Ex.PW1/6, one certificate of College of Vocational Education for Garment Quality Control cum Merchandiser as Ex.PW1/7, certificate of Honours Diploma in Computer Software & Hardware as Ex.PW1/8, one certificate of three years degree course in Commerce from Janardan Rai Nagar Rajasthan Vidyapeeth University as Ex.PW1/9 and a copy of the consolidated statement of mark-sheets of the said degree course as Ex.PW1/10.
To substantiate his claim about the above employment and earnings of the deceased, PW1 has also tendered on record a copy of one letter of the year 2006 offering a contract of employment for the post of Production Manager to his son in the above company named Sara Lee Sourcing Pvt. Ltd. at Bangalore as Ex.PW1/1, attested copies of the bank account of his son being maintained with HDFC Bank as Ex.PW1/2 (colly) for the period w.e.f. 09.06.2012 to 05.12.2012, copies of various credit advices and certificates of foreign inward remittances in the name of his son on account of his salary of different months during the years 2009, 2010 and 2011, except one certificate of foreign inward remittance which is found to be dated 13.05.2005, and copy of passport of his son as Ex.PW1/4 (colly-33 sheets). All these credit advices/remittances are from the MACP Nos.53/16, 54/16 & 55/16 Page no. 36 of 50 above company namely Lamour Global Ltd., Canada. He has further tendered on record copies of some letters/offers of appointment as Supervisor in respect of his deceased son w.e.f. 01.12.2008 of this company as Mark-A (colly-4 sheets), copy of his transfer/posting orders as Mark-B (4-sheets), copies of Form No.16 of the assessment years 2009-10 and 2008-09 as Marks C & D respectively, copy of statement of computation of income tax for the year 2006-07 as Mark E, copy of statement of ABN Amro Bank as Mark F and copy of statement of RBS Bank as Mark-G. It is observed that copies of the above foreign inward remittances/credit advices and bank statements of ABN Amro and RBS banks are all unattested documents and photocopies of the said statements are found to be marked only as exhibition thereof was objected too by the Ld. Counsel for R-5. However, still the oral depositions made by PW1 and other documents brought by him on record show that his deceased son had been working for the above companies in the above capacities and had been earning handsome amounts, either as a salary or remuneration or in any other form.
To substantiate above and prove his case, the petitioners are also found to have examined on record one official of the RBS Bank, Barakhamba Road Branch, New Delhi, namely Sh.Vineet Matur, as PW2 and this witness has produced in evidence the attested copies of one account statement of the deceased being maintained with their bank for the financial year 2011-12 as Ex.PW2/A (colly-16 pages). These documents clearly show that the deceased had been receiving regular amounts by way of foreign remittances in his above said account of RBS Bank from the above company named Lamour Global Ltd., Canada. It is observed that during the financial year 2011, the foreign remittances received by MACP Nos.53/16, 54/16 & 55/16 Page no. 37 of 50 the deceased from the above company in his above account were equivalent to Rs.31,45,661/- approximately, though in the financial year commencing from April 2012 till around the time of his death in the said year, he had only received an amount of Rs.1,43,253/- in the said account from the above company.
Since the deceased is no more in this world, the reasons for such a steep fall in his earnings/remuneration from above job or work are not clear. However, the oral and documentary evidence brought in evidence clearly shows that the deceased was highly qualified and had acquired a wide range of experience while working in the above foreign company in different countries. Even a bare perusal of his passport shows that he had traveled to various countries, including Bangladesh, Pakistan, Canada and Thailand etc., on numerous occasions. Hence, it will be unjust for the petitioners if only the amounts reflected as earnings of the deceased around the month of his death or even in the financial year commencing from April 2012 till his death are taken into consideration for determining his earnings at the time of his death. It will also be unjust for the respondents if only the amounts reflected during the financial year 2011 are considered. Therefore, it appears to this tribunal that it will be just and reasonable and in the interests of justice if the average income or earnings of the deceased as reflected in his above bank statement Ex.PW2/A (colly), i.e. the financial years 2011-12 and 2012-13 ending with the day of accident is considered for determination of loss of dependency caused to the petitioners of this case due to his death. The total of the above two amounts for the period commencing from April 2011 to December 2012 (21 months) is taken into consideration and average earnings of the deceased are ascertained.
MACP Nos.53/16, 54/16 & 55/16 Page no. 38 of 50 The total of the above two amounts comes to Rs.32,88,914/- (Rs.31,45,661/- + Rs.1,43,253/-) for the period commencing from April 2011 to December 2012 and the average monthly earnings of the deceased come to Rs.1,56,615/- (Rs.32,88,914/- / 21 months) and the annual income thus come to Rs.18,79,380/- (Rs.1,56,615/- X 12). In view of the settled law on the subject, only the tax liability of the deceased, if any, is liable to be reduced from his above annual earnings as his 'income' means the actual income less than the tax paid, as was also approved in the case of Pranay Sethi (Supra). As per the income tax slab during the relevant financial year, i.e. 2012-13, for individuals below 60 years there was Nil tax upto the income of Rs.2,00,000/-, 10% tax rate was applicable from Rs.2,00,000/- to Rs.5,00,000/-, 20% tax rate was applicable from Rs.5,00,000/- to Rs.10,00,000/- and 30% tax rate was applicable from income above Rs.10,00,000/-. Apart from this education cess @ 2% and secondary & higher education cess @ 1% were chargeable. Hence, an amount of Rs.4,05,628/- is required to be reduced towards income tax from the above earnings of the deceased and the net annual earnings of the deceased thus come to Rs.14,73,752/- (Rs.18,79,380/- - Rs.4,05,628/-).
Coming to the dependency upon the deceased, it is observed that during his cross-examination, father of the deceased PW1/P-2 has admitted that he is holding a PAN card and he is also having two other sons and hence, though P-2 has claimed himself to be dependent upon the deceased, but in view of the above as well as the law laid down in the case of Sarla Verma (Supra), he cannot be treated as a dependent upon the deceased in the absence of any evidence led on record to the contrary, which the petitioners have failed to lead in the present case, and only P-1, i.e. of the mother of MACP Nos.53/16, 54/16 & 55/16 Page no. 39 of 50 the deceased can be considered as dependent upon the deceased. However, in any case, since the deceased was unmarried, in terms of the law laid down by the Hon'ble Supreme Court in the cases of Sarla Verma and Pranay Sethi & Ors. (Supra), 50% of his earnings will be deducted towards his personal and living expenses. Further, in view of the legal position already discussed, the petitioners are also held entitled to 40% of above amount of earnings as future prospects since he was below 40 years of age at the time of accident.
Thus, the loss of dependency qua deceased in the present case comes to Rs.1,65,06,022/- (rounded off) (Rs.14,73,752/- X 140/100 X 50/100 X 16) and the said amount is being awarded under this head.
(ii) COMPENSATION UNDER NON-PECUNIARY HEADS The compensation to be granted in case of a death arising from a road accident under the non-pecuniary heads of loss of estate, loss of consortium, funeral expenses etc. came for active consideration before the Hon'ble Supreme Court in the above Constitution Bench judgment in the case of Pranay Sethi (Supra). Since, the deceased was unmarried, in terms of the propositions laid down by the Hon'ble Supreme Court in the said case, the petitioners are also held entitled to amounts of Rs. 15,000/- each under the heads of loss of estate and funeral expenses. However, no compensation can be awarded to the petitioners under any other head like loss of love and affection etc. being claimed by Ld. Counsel for the petitioners, in view of the law laid down in the above judgment and also followed by the Hon'ble Delhi High Court in its various judgments including the recent decision in the case of Bajaj Allianz General Insurance Co. Ltd. Vs. Pooja & Ors. (Supra). Hence, the MACP Nos.53/16, 54/16 & 55/16 Page no. 40 of 50 petitioners are also awarded a total sum of Rs. 30,000/- under the above two heads.
The petitioners of MACP No.55/16 are thus held entitled to the compensation as given in the following summary of computation in the prescribed format:-
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN FORM IV-A
1. Date of accident : 29.12.2012
2. Name of the deceased : Deepak Kainthola
3. Age of the deceased : 33 years and around 8 months
4.Occupation of the deceased : Project Manager/Field Executive
5. Income of the deceased : Rs.18,79,380/- pa
6.Name, age and relationship of legal representative of deceased:-
Srl. No. Name Age Relation
(i) Smt. Siddheshvari 65 years Mother
(i) Sh.Kailash Chand Kainthola 66 years Father
Computation of Compensation
Srl. No. Heads Amount Awarded
7. Income of the deceased (A) Rs.1,22,812.66 pm
(after deducting tax)
8. Add-Future Prospects (B) Rs.49,125.06
9. Less-Personal expenses of Rs.85,968.86
the deceased (C)
10. Monthly loss of dependency Rs.85,968.86
[(A+B) - C = D]
11 Annual loss of dependency Rs.10,31,626.34
(D x 12)
12 Multiplier (E) 16
13 Total loss of dependency (D Rs. 1,65,06,022/- (rounded
x 12 x E = F) off)
14 Medical Expenses (G) Nil
15 Compensation for loss of Nil
love and affection (H)
16 Compensation for loss of Nil
consortium (I)
17 Compensation for loss of Rs.15,000/-
estate (J)
MACP Nos.53/16, 54/16 & 55/16 Page no. 41 of 50
18 Compensation towards Rs.15,000/-
funeral expenses (K)
19 TOTAL COMPENSATION Rs.1,65,36,022/-
(F + G + H + I + J+K =L)
20 RATE OF INTEREST 9% pa from date of filing of
AWARDED petition i.e. 22.08.2013 till
30 days from today and
12% pa thereafter.
21 Interest amount up to the date Rs.77,42,935.67
of award (M)
22 Total amount including interest Rs.2,42,78,957.67
(L+M) being rounded off to
Rs.2,42,79,000/-
23 Award amount released P-1 = 10% out of entire
compensation
24 Award amount kept in FDRs P-1 = 90% out of entire
compensation
25 Mode of disbursement of the Through bank
award amount to claimant(s)
26 Next date for compliance of the 07.02.2019
award
RELIEF
The petitioners of MACP No.55/16 are thus awarded a sum of Rs.2,42,79,000/- (Rupees Two crores Forty Two Lacs and Seventy Nine Thousand only), including interest @ 9% per annum from the date of filing of claim petition, i.e. 22.08.2013, till date and interest at the same rate till 30 days from today or till notice of deposit is given to the petitioners, whichever is earlier and 12% per annum after expiry of 30 days from today. 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 above amount and calculations of compensation.
APPORTIONMENT As discussed above, P-2 is not considered as dependent upon the deceased at the time of his death, the entire compensation MACP Nos.53/16, 54/16 & 55/16 Page no. 42 of 50 amount is being awarded in favour of P-1 Smt. Siddheshvari. RELEASE Out of the entire compensation amount, 10% amount, alongwith interest till deposit and after deducting tax on the interest amount or amount of interim award, if any, is directed to be released to P-1 by transferring it into her savings bank account bearing no.3678473577 being maintained at Central Bank of India, Sector 22 Noida Branch, U.P. with IFSC Code No. CBIN0283523 and remaining 90% amount is directed to be kept in 15 equal annual FDRs for a period of 1 year to 15 years in succession with cumulative interest. The amount of FDRs on maturity would also be released in her same account.
The bank shall not permit any joint name (s) to be added in the above savings bank accounts or fixed deposit accounts of P-1 i.e. the savings bank account of the claimant shall be individual savings bank account and not a joint account (s). However, the concerned bank shall permit the claimant to withdraw money from her above savings bank account by means of a withdrawal form.
The original fixed deposits shall be retained by the UCO Bank, PHC, New Delhi in safe custody. However, the statement containing FDR numbers, FDR amounts, dates of maturity and maturity amounts shall be furnished by bank to the claimant.
The maturity amounts of the FDRs be credited by Electronic Clearing System (ECS) in the above mentioned savings bank account of the claimant.
No loan, advance or withdrawal or pre-mature discharge be allowed on the fixed deposits without permission of the Court.
P-1 has already produced before this tribunal her original passbook with requisite endorsements of the Bank Manager MACP Nos.53/16, 54/16 & 55/16 Page no. 43 of 50 concerned that no cheque books or ATM cards shall be issued to her in the said account and she has also filed copies thereof on record, alongwith copies of her aadhar card and PAN card. It is directed that the concerned bank shall not issue any cheque book and/or debit card etc. to the claimant in future also.
45. LIABILITY As stated above R-3, R-4 & R-5 are the driver, owner and insurer respectively of the above offending tractor and as per law they are jointly and severally liable to pay compensation to the petitioners unless there are any grounds or reasons to exonerate any of them from the said liability. It is the contention of Ld. Counsel for R-5 that even if the said tractor is taken to be insured with them at the time of accident, they are still not liable to pay any compensation to the petitioners as it has come on record that on the date of accident, i.e. 29.12.2012, the said tractor was not registered with the concerned transport authority and was not bearing any number plate. It is a matter for record that it came to be registered in the name of R-4 only on 18.03.2013 vide registration certificate available on page no.12 of the documents Ex.R5W1/C (colly), i.e. after around 2½ months of the accident. He has also relied upon the judgment of a Division Bench of the Hon'ble Supreme Court in the case of Narinder Singh Vs. New India Assurance Co. Ltd., 2014 (4) TAC (SC) and also a judgment of the Hon'ble Punjab & Haryana High Court in the case of Taranjit Kaur Vs. Subhash Chand & Ors., 2015 ACJ 550.
However, the facts of above two cases can be differentiated from these cases and the same are held not applicable to the present case. It is observed that in the case of Narinder Singh (supra), the vehicle was having a temporary registration number MACP Nos.53/16, 54/16 & 55/16 Page no. 44 of 50 which expired and the accident took place thereafter within the period of insurance, and the claim raised against the Insurance Co. in that case was by the insured himself in respect of damages caused to his insured vehicle. It is in this context that the Hon'ble Supreme Court has observed in the said case that the absence of a permanent registration of the vehicle by the owner shall constitute a fundamental breach of the insurance policy. However, in the present case, it is an admitted fact that no registration number was alloted or issued to the vehicle when it was insured by R-5 initially for the period from 23.09.2011 to 22.09.2012 and even no registration number was alloted to the vehicle when it was again insured for the second term commencing from 07.11.2012 to 06.11.2013. It cannot be ignored that the vehicle was purchased by R-4 on 25.07.2011 and the insurance policy should not have been issued by the company on 23.09.2011 without getting the said vehicle registered, either in the name of PNB or in name of R-4 with an endorsement of hypothecation in favour of the concerned bank. It is also observed that without insisting for and ensuring the availability of a registration number of the said vehicle, R-5 has again issued the second insurance policy for the period commencing 07.11.2012 to 06.11.2013 and even this policy is found to have been issued after a gap of around 1½ month from expiry of the first/initial policy. By issuing two successive policies of insurance, without getting and ensuring registration of the said vehicle, and after accepting the premium, R-5 cannot now be permitted to put the entire blame on R- 4 and to avoid their liability under the said policies.
Moreover, in the present cases, the claim for compensation is not being made against R-5 by the insured or registered owner of the said vehicle, but the present claims have MACP Nos.53/16, 54/16 & 55/16 Page no. 45 of 50 been made by some other persons, who are LRs of the three deceased of the above accident and are third parties qua the insurance co. and their claims cannot be defeated for the reason that for no fault on their part, the owner of the offending vehicle failed to get it registered with the concerned transport authority or that these policies were issued by the insurance company without ensuring the registration of the said vehicle. Reference in this regard can also be made to the judgment dated 11.08.2016 of the Hon'ble High Court of Madras in CMA No.1432/09 in the case titled M/s. New India Assurance Co. Ltd. Vs. Saraswathi wherein their Lordships, while differentiating the judgment of the Hon'ble Supreme Court in the case of Narinder Singh (supra) have held a third party claim to be maintainable against the insurance company in such a case where the offending vehicle was not having a valid registration at the time of accident. In view of the above, the judgment of the Hon'ble Punjab & Haryana High Court in the case of Taranjit Kaur (supra) is also not found to be helpful to the case of R-5.
Another contention of Ld. Counsel for R-5 is that the depositions made by R5W1 and the records produced by him clearly show that R-3 was not holding a valid DL to drive a tractor attached with a trolley. In this regard, it is observed that as per the extracts of DL of R-3 Ex.R5W1/B and the depositions made by the above witness, the licence of R-3 was valid from 01.12.2010 to 31.12.2013 for MCWG, LMV, NT categories of vehicles and not for the transport or commercial vehicles. It is also pointed out that R5W1 has even stated on record that for driving a tractor only licence is required of LMV category, but if the tractor is attached with a trolley then the licence is required for the commercial/transport category. However, in this regard, Ld. Counsel for the petitioners has rightly relied upon a MACP Nos.53/16, 54/16 & 55/16 Page no. 46 of 50 judgment of the Hon'ble Supreme Court in the case of Nagashetty Vs. United India Insurance Co. Ltd. & Ors. 2001 ACJ 1441 wherein their Lordships have held that no separate licence is required for driving a tractor attached with a trolley and if the licence is valid for driving LMV category of vehicles, it does not become invalid and a person does not become disabled to drive it merely because a trolley is attached with it.
Hence, though R-3, R-4 and R-5 are all held jointly and severally liable to pay the compensation to the petitioners/claimants, but R-5 being insurer of the offending tractor is directed to pay and deposit the compensation in all the three cases with the Manager, UCO Bank, Patiala House Court Branch, alongwith interest @ 9% per annum, by way of crossed cheques/DDs in name of the claimants within 30 days from today failing which it will be liable to pay interest at the rate of 12% per annum for the period of delay. In case even after passage of 90 days from today, R-5 fails to deposit this compensation with proportionate interest, in that event, in light of the judgment of the Hon'ble High Court of Delhi in the case of New India Assurance Company Limited Vs. Kashmiri Lal, 2007 ACJ 688, this compensation shall be recovered by attaching the bank account of the insurance company with a cost of Rs.5,000/-.
R-5 shall inform the claimants and their counsel through registered posts that the cheques of the awarded amount are being deposited so as to facilitate them to collect their cheques.
46. 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.
MACP Nos.53/16, 54/16 & 55/16 Page no. 47 of 50
47. Further Nazir is directed to maintain the record in Form VII as per the directions given by the Hon'ble Delhi High Court in the above case on 15.12.2017.
48. The particulars of Form-V of the Modified Claims Tribunal Agreed Procedure, in terms of directions given by the Hon'ble Delhi High Court in the above case on 15.12.2017, are as under:
1. Date of the accident 29.12.2012
2. Date of intimation of the accident by Outstation matters I.O. to the Claims Tribunal.
3. Date of intimation of the accident by
-do-
I.O. to the Insurance company.
4. Date of filing of Report u/s.173 Cr.PC
-do-
before the Metropolitan Magistrate.
5. Date of filing of Details Accident Report (DAR) by IO before Claims -do-
Tribunal.
6. Date of service of DAR on Insurance
-do-
Company
7. Date of service of DAR on
-do-
claimant(s).
8. Whether DAR was complete in all
-do-
respects?
9. If not, state deficiencies in the DAR -do-
10. Whether the police has verified the
-do-
documents file with DAR?
11. Whether there was any delay or deficiency on the part of the
-do-
Investigating Officer? If so, whether any action/direction warranted?
12. Date of appointment of Designated Not given Officer by the Insurance Company.
13. Name, address and contact number of the Designated Officer of Not given Insurance Co.
14. Whether the Designated Officer of the Insurance Company submitted his Outstation matters report within 30 days of the DAR?
15. Whether the Insurance Company -do-
admitted the liability? If so, whether the Designated Officer of the Insurance Company fairly computed the compensation in accordance with MACP Nos.53/16, 54/16 & 55/16 Page no. 48 of 50 law.
16. Whether there was any delay or deficiencies on the part of the Designated Officer of the Insurance -do-
Company? If so, whether any action/direction warranted?
17. Date of response of the claimant(s) of
-do-
the offer of the Insurance Company.
18. Date of the award 03.11.2018
19. Whether the award was passed with No the consent of the parties?
20. Whether the claimant(s) were directed to open savings bank Yes account(s) near their place of residence?
21. Date of order by which claimant(s) were directed to open savings bank account(s) near his place of residence and produce PAN Card and Adhaar Card and the direction to 08.03.2018 the bank not issue any cheque book/ debit card to claimants and make an endorsement to this effect on passbooks.
22. Date on which the claimant(s) produced the passbook of their 16.05.2018 savings bank account near the place of their residence alongwith endorsement, PAN & Adhaar Cards?
23. Permanent Residential Address of the MACP No.53/16 Claimant(s) R/o. H. No. H-295, Sector 22, PS Noida Sector-24, District Ghaziabad, U.P. MACP No.54/16 R/o. H. No. 106, Sector 22, PS Noida Sector-24, District Gautam Budh Nagar, U.P. MACP No.55/16 R/o. H. No. 240, Sector 22, PS Noida Sector-24, District Gautam Budh Nagar, U.P.
24. Details of savings bank account (s) of MACP No.53/16 the claimant(s) and the address of the P-1 = A/c. 3678473486 being bank with IFSC Code. maintained at Central Bank of India, Sector 22 Noida Branch, U.P. with IFSC Code No. CBIN0283523.
MACP No.54/16P-1 = A/c. 6717000100018766 MACP Nos.53/16, 54/16 & 55/16 Page no. 49 of 50 being maintained at Punjab National Bank, Sector 63 Noida Branch, U.P. with IFSC Code No.PUNB0671700 P-2 = Yet to be opened MACP NO.55/16 P-1 = A/c. No. 3678473577 being maintained at Central Bank of India, Sector 22 Noida Branch, U.P. with IFSC Code No. CBIN0283523.
25. Whether the claimant(s) savings bank account(s) is near his/her place of Yes residence?
26. Whether the claimant(s) were examined at the time of passing of Yes the award to ascertain his/their financial condition?
49. Files be consigned to Records after necessary formalities. Separate files be prepared for compliance report and be Digitally signed put up on 07.02.2019. MANOJ by MANOJ KUMAR KUMAR NAGPAL Date:
NAGPAL 2018.11.05
17:06:43 +0400
Announced in the open court. (M.K.Nagpal)
on 03.11.2018 PO/MACT, New Delhi
MACP Nos.53/16, 54/16 & 55/16 Page no. 50 of 50