Delhi District Court
Smt. Sunita Devi W/O Late Sh. Satya ... vs Prem Suresh Page 1 Of 32 on 31 October, 2017
IN THE COURT OF SH. AMIT BANSAL : JUDGE :
MOTOR ACCIDENTS CLAIMS TRIBUNAL :NOTH WEST
DISTRICT: ROHINI COURTS: DELHI
New No. 5022616
MACT PETITION No. : 322/07
UNIQUE ID No. : DLNW010010102013
1. Smt. Sunita Devi W/o Late Sh. Satya Narayan
Chaudhary
(Wife of deceased Satya Narayan Chaudhary)
2. Master Abhishek Chaudhary
(minor son of deceased)
3. Ms. Neha
( minor daughter of deceased)
4. Ms. Preeti
( minor daughter of deceased)
5. Shri Ram Chander Chaudhary
( father of deceased)
{ petitioners no. 2 to 4 being minors through their mother
being natural guardian }
All R/o
Jhang Bhawan, Rishi Nagar, Captain Satish Marg, Near
Central School, Opp Neelambar Appartment, Shakurbasti,
Delhi34
Also At : H. No. 70, Village Bhatauliya, PO Patahi, PS
Belsend, District Sitamarhi, Bihar.
.......PETITIONERS
V e r s u s
1. Sh. Prem Suresh S/o Sh. Dayal Suresh
R/o Village Morawali, PS & Tehsil GA Santor,
District Hoshiyarpur, Punjab.
(Driver/R1)
Suit No.32207- Smt. Sunita Devi vs Prem Suresh Page 1 of 32
2. Sh. Shailender Chauhan
R/o T510, C16E, Baljeet Nagar, Delhi18
(Owner/R2)
3. New India Assurance Company Ltd.
Jeewan Bharti Building, Canaught Circus, New Delhi
(Insurer/R3)
4. Smt. Lalita Devi W/o Late Sh. Satya Narayan
Chaudhary
5. Ms Poonam D/o Late Sh. Satya Narayan Chaudhary
(both R/o 69, Village Bhatauliya PO Patahi, PS Belsend,
District Sitamarhi, Bihar)
.......RESPONDENTS
Other details
DATE OF INSTITUTION : 17.04.2007
DATE OF RESERVING JUDGMENT : 27.10.2017
DATE OF PRONOUNCEMENT : 31.10.2017
1. COMPLIANCE OF THE PROVISIONS OF THE
MODIFIED CLAIMS TRIBUNAL AGREED
PROCEDURE TO BE MENTIONED IN THE
AWARD AS PER FORMAT REFERRED IN
CLAUSE 29 OF THE ORDER PASSED BY THE
HON'BLE HIGH COURT IN FAO 842/2003 RAJEST
TYAGI Vs. JAIBIR SINGH & ORS. VIDE ORDER
DATED 12.12.2014
Suit No.32207- Smt. Sunita Devi vs Prem Suresh Page 2 of 32
1. Date of Accident 26.03.2007
2 Date of intimation of the
accident by the investigation No provision of AIR
officer to the Claims Tribunal or DAR at that time.
(Clause 2)
3. Date of Intimation of the
accident by the investigation
officer to the insurance
company. (Clause 2)
4. Date of filing of Report under
Section 173 Cr.PC before the
Metropolitan Magistrate
5. Date of filing of Detailed
Accident Information Report
(DAR) by the Investigating
Officer before Claims Tribunal.
(Clause 10)
6. Date of service of DAR on
Insurance Company
7. Date of service of DAR on the
claimant (s). (Clause 11)
8 Whether DAR was complete in
all respects? (Clause
9. If not, state deficiencies in the
DAR
10. Whether the police has verified
the documents filed with DAR?
(Clause 4)
11. Whether there was any delay
or deficiency on the part of the
Investigating Officer? If so,
whether any action/direction
warranted?
Suit No.32207- Smt. Sunita Devi vs Prem Suresh Page 3 of 32
12. Date of appointment of the
Designated Officer by the
Insurance Company (Clause
19)
13. Name, address and contact
number of the Designated
Officer of the Insurance
Company (Clause 19)
14. Whether the Designated Officer
of the Insurance Company
submitted his report within 30
days of the DAR? (Clause 21)
15. Whether the Insurance
Company admitted the liability?
If so, whether the Designated
Officer of the Insurance
Company fairly computed the
compensation in accordance
with law (Clause 22)
16. Whether there was any delay
or deficiency on the part of
Designated Officer of the
Insurance company? If so,
whether any action/direction
warranted?
17. Date of response of the
claimant (s) to the offer of the
Insurance Company. (Clause
23)
18. Date of the Award 31.10.2017
19. Whether the award was passed Award on merits of
with the consent of the parties? the case
(Clause 22)
20. Whether the claimant (s) Yes.
Suit No.32207- Smt. Sunita Devi vs Prem Suresh Page 4 of 32
examined at the time of the
award to ascertain his/their
financial condition? (Clause 26)
21. Whether the photographs Yes.
specimen signatures, proof of
residence and particulars of
bank account of the
injured/legal heirs of the
deceased taken at the time of
passing of the award? (Clause
26)
22. Mode of disbursement of the As per award
award amount to the claimant
(s). (Clause 28)
23. Next Date for compliance of the As per award
award (Clause 30)
JUDGMENT
1. Present claim petition has been preferred under Section 166 and 140 of Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act') claiming compensation for a sum of Rs.30,00,000/ (Rupees Thirty Lakhs Only) with interest @ 18% p.a. in respect of accidental death of Sh. Satya Narayan Chaudhary in a motor vehicular accident.
2. As per the case of petitioners/LR's of deceased Satya Narayan Chaudhary, on 26.03.2007 at Suit No.32207- Smt. Sunita Devi vs Prem Suresh Page 5 of 32 about 12:30 pm, the deceased (Satya Narayan Chaudhary) was going to sell coconuts by cycle rikshaw rehri along with his brother Sh. Deep Narayan S/o Ram Chander. When they reached at Mahendra Park Red light, Rishi Nagar, Delhi, a truck bearing registration No. DL 1GA0433 (offending vehicle) being driven by R1 in reckless, negligent and rash manner hit the deceased due to which deceased sustained multiple fatal injuries on all over his body and was immediately shifted to Bhagwan Mahavir Hospital where he succumbed to his injuries. Later on his postmortem was conducted at BJRM Hospital. Petitioners have submitted that the deceased was just 35 years of the age, was the only source of bread earner for his entire family and was self employed as he was the driver and owner of TSR no. DL1RF9158 and was earning handsomely an income of Rs. 15,000/ per month, Rs. 10,000/ from TSR and Rs. 5000/ from the selling of coconuts.
It was mentioned the petition that the accident did not occur due to any omission or negligence of deceased but happened due to sole rash and negligent act of R1. R2 is stated to be the owner of the offending vehicle.
Respondent no. 4 and 5 are also stated to be the wife and daughter of deceased. It has been stated in the Suit No.32207- Smt. Sunita Devi vs Prem Suresh Page 6 of 32 petition that the petitioners and R4 and R5 were maintaining a good life style due to support provide by the deceased.
The claim of consortium has been prayed for petitioner no. 1 and R4 both being wives of deceased.
It has been mentioned in the petition that all the respondent no.1 to 3 are liable to pay the compensation jointly and severally to the petitioners. It has further been mentioned that respondent no. 4 and 5 are proforma respondents, hence the petitioners have no claim against them.
FIR No. 337/2007, U/s 279/304A IPC was registered at PS Saraswati Vihar against R1.
3. As per record, Sh. Prem Suresh/R1/driver and Sh. Shailender Chauhan/R2/owner of the offending vehicle have filed their written statement jointly wherein they have stated that no accident had taken place with the vehicle no. DL1GA0433. They stated that the said vehicle was having valid insurance for that particular point of time.
4. In the written statement filed on behalf of R3/New India Assurance Company Ltd. (insurer of the offending vehicle), it was admitted that the offending vehicle was insured with R3 vide policy No.323401/31/06/02/00001352 w.e.f 19.09.2006 to Suit No.32207- Smt. Sunita Devi vs Prem Suresh Page 7 of 32 16.09.2007 in the name of Sh. Shailender Chauhan/R2 i.e covering the date of accident (26.03.2007). It has been stated that the accident was occurred due to the rash and negligent act on the part of the deceased himself.
5. As per record, R4 and R5 did not file any written statement and ultimately R5 was proceeded against exparte vide order dated 18.03.2009.
6. From the pleadings of the parties, following issues were framed for consideration by the Ld. Predecessor of this court on 18.03.2009: (1) Whether on 26.03.07 at about 12:30 pm vehicle no. DL1GA0433 which was being driven rashly and negligently hit cycle rickshaw rehri of Satya Narayan Chauhdary and caused his death? OPP (2) Whether deceased himself was guilty of negligence? OPR3 (3) Whether the petitioners are entitled to compensation, if so, to what amount and from whom? OPP (4) Relief.
The petitioners have examined Smt. Sunita Devi, petitioner no.1 as PW1 and Sh. Deep Narayan (eye Suit No.32207- Smt. Sunita Devi vs Prem Suresh Page 8 of 32 witness) as PW2.
Insurance co/R3 has also examined Sh. N.K. Saxena, Assistant of the Insurance co. as R3W1 and Sh. Pramod Kumar, Enforcement Senior Clerk, RTO Office, Transport Nagar, Agra, UP as R3W2.
R1, R2, R4 and R5 have not lead any evidence in support of their case.
6. I have heard arguments addressed on behalf of ld counsel for petitioner and ld counsel for insurance co./R3. None has appeared on behalf of remaining respondents to advance final arguments. I have carefully perused the record. Now, I proceed to discuss the issues in the succeeding paragraphs.
7. Issue wise findings are as under: Issue No. (1) & (2) Issue no 1 and 2 being interrelated and interconnected are being taken up together and would be disposed of by common order.
PW1 Smt. Sunita Devi (wife of deceased) testified by her evidence by way of affidavit Ex. PW1/A. She proved on record copy of her election card as Ex. PW1/1, the death certificate of deceased as Ex. PW1/2, copy of NCR is Mark X, copy of election identity card of deceased as Mark X1, photographs of marriage are Ex.
Suit No.32207- Smt. Sunita Devi vs Prem Suresh Page 9 of 32PW1/3 (colly), copies of birth certificates of children Neha, Preeti and Abhishek as Ex. PW1/4 to Ex. PW1/6 respectively, copy of death certificate of Smt. Sita Devi who was mother of deceased is Ex. PW1/7 and copies of the agreement and transfer documents of the agriculture land is Ex. PW1/8.
She has deposed in her evidence by way of affidavit Ex. PW1/A that her husband had died in a road accident on 26.03.2007. Further, she has deposed about the family members of the deceased and earning of deceased etc. which is not relevant to the present issues.
She was only cross examined on behalf of insurance co/R3 wherein no question pertaining to the said issues were put to her.
PW2 Sh. Deep Narayan has proved his evidence by way of affidavit as Ex. PW2/A wherein he has deposed that he was the eye witness of this case. He deposed that in the accident dated 26.03.2007 his elder brother Mr. Satya Narayan had died. He deposed that on 26.03.2007 at about 12:30 pm he along with his brother (deceased) were coming from Rani Bagh Chowk and were proceeding towards Shakurpur by pulling their rehriesrickshaw as they both used to sell coconuts on them. He deposed that his brother (since deceased) was ahead of him, was Suit No.32207- Smt. Sunita Devi vs Prem Suresh Page 10 of 32 pulling rehririckshaw and he along with his rickshaw was little behind his brother. He deposed that the deceased had taken turn at Mahindra Park Red Light for Sri Nagar, when all of a sudden the driver of truck no. DL1GA0433 who was driving the said truck at high speed, rashly and negligently hit the middle right side of the rehririckshaw of the deceased due to which the handle of rehririckshaw was inserted into the stomach of the deceased and he fell down. He deposed that somebody dialed 100 number, called the police and someone took his brother to Bhagwan Mahavir Hospital where he was declared 'brought dead'. He further deposed that the driver of the said offending vehicle/truck had caused the accident while driving it at a high speed and in a rash and negligent manner. He deposed that the police had recorded his statement upon which the FIR was registered against R1 i.e. driver of the offending vehicle. He further deposed that the accused/R1 was also arrested in his presence and he had identified the accused.
PW2 was only cross examined by ld counsel for R3/Insurance co. wherein he admitted that deceased was his real brother and he along with other persons namely Nand Kishore went to the hospital. He deposed that he told the doctor that injured was his brother. He admitted Suit No.32207- Smt. Sunita Devi vs Prem Suresh Page 11 of 32 that MLC was prepared of an unknown person. He denied the suggestion that neither he was present at the time of accident nor he had seen the accident.
Nothing has appeared in the cross examination of PW1 and PW2 to discredit their above said testimonies.
PW1 and PW2 were not cross examined by R1 and R2 and hence, they shall be deemed to admit the above said testimony.
Further, certified copies of criminal case is also proved on record which show that a final report u/s 173 Cr.PC was filed wherein R1 was prosecuted u/s 279/304 A IPC. The facts mentioned in the criminal case record would show that primafacie the accident occurred at the above said date, time and place due to rash and negligent driving of R1.
In view of the above said discussion, testimonies of PW1 and PW2 and criminal case record available on record, it is prima facie proved that deceased died as a result of injuries sustained in the accident in question due to rash and negligent driving of respondent no.1 while driving the offending vehicle.
Issue no.1 is accordingly decided in favour of the petitioners and against the respondents.
The onus of proving issue no. 2 to the effect that the Suit No.32207- Smt. Sunita Devi vs Prem Suresh Page 12 of 32 deceased himself was guilty of negligence was upon R3/Insurance co. Insurance co/R3 has not lead any evidence on that score. Further, in view of findings on issue no. 1, it stands proved that the case accident was caused by negligent driving of R1 while driving the offending vehicle.
In facts, R3 has failed to prove that deceased himself was guilty of negligence. The said issue no. 2 is accordingly decided against R3 and in favour of the petitioners.
8. Issue No. (3) In view of findings of issue no.1 petitioners and R4 and R5 are entitled to compensation.
a) Petitioners in the petition and evidence by way of affiavit Ex. PW1/A have stated that deceased was earning Rs. 15,000/ per month as he was a TSR driver and was also selling fruits.
During cross examination as conducted on behalf of insurance co/R3, PW1 has clearly deposed that she did not have any driving licence of deceased as the same had been lost during his life time. She further deposed that she did not remember whether deceased had lodged a complaint regarding the missing of his driving licence.
In facts, the petitioners have failed to prove that the Suit No.32207- Smt. Sunita Devi vs Prem Suresh Page 13 of 32 deceased was a TSR driver. Petitioners have also failed to prove on record the monthly or yearly earnings of the deceased. During final arguments, ld counsel for petitioners fairly admitted that the deceased was illiterate and even no educational certificates etc of the deceased have been placed or proved on record by the petitioners. During arguments ld counsel for petitioners and the ld counsel for insurance co/R3 fairly submitted that in the facts and circumstances of the case, the income of the petitioner would have to be assessed on the basis of minimum wages of unskilled labour/worker. In view of the said discussion, it would be appropriate to assess the income of the deceased on the basis of minimum wages of an unskilled worker as fixed by the Govt. of NCT of Delhi under the Minimum Wages Act. The minimum wages of an unskilled worker at the relevant time on the date of accident was Rs. 3,470/ p.m. Accordingly, it would be reasonable and just to consider the income of petitioner as Rs. 3,470/ per month on the date of accident in question.
(b) Addition of future prospects
If addition in income towards future
prospects is to be made
Since the deceased was admittedly not having a Suit No.32207- Smt. Sunita Devi vs Prem Suresh Page 14 of 32 fixed income and his income has been notionally assessed by taking minimum wages of unskilled labour, hence, he would not be entitled towards future prospects as per judgment in case of Rajesh & Others v. Rajbir Singh & Others 2013(6) SCALE 563.
(c) Deduction towards personal and living expenses of the deceased:
PW1 Smt. Sunita Devi (Stated to be wife of deceased) has deposed in her evidence by way of affidavit Ex. PW1/A that she got married with the deceased in the month of February 1999 in the presence of family members and relatives as evident from the photographs proved as Ex. PW1/3 (colly). She deposed that she was blessed with three children i.e. daughters namely Neha and Preeti (petitioners no. 3 & 4 respectively) and Abhishek (petitioner no. 2). The copy of birth certificates of Neha (date of birth 13.12.1999), Preeti (date of birth 22.04.2003) and Abhishek (date of birth 25.05.2006) with name of parents as Sunita (petitioner no.1) and Satnarayan (deceased) have been proved as Ex. PW1/4 to Ex. PW1/6 respectively. It was further mentioned in Ex.
PW1/A that deceased also left behind his parents i.e. petitioner no. 5 & 6, however, Smt. Sita Devi i.e. mother of deceased expired on 04.03.2009 vide death certificate Ex.
Suit No.32207- Smt. Sunita Devi vs Prem Suresh Page 15 of 32PW1/7 i.e. She died after the death of deceased. It was further deposed in Ex. PW1/A that at the time of her marriage with the deceased, it was told to her by the deceased and his family members that he was married with one Ms. Lalita Devi (R4) but at that time he was living separately from her(R4) due to some disputes between them, litigations were also pending between them and efforts for separation were in process. It was further deposed that on 30.06.2001 a settlement was arrived at between deceased and R4 by way of which the mother of the deceased i.e. Smt. Sita Devi (since expired) shall transfer agriculture land situated at village Kathor, District Sitamarhi, Bihar and accordingly Smt. Sita Devi had transferred said land in the name of R4 towards her full and final claims/settlement. It has been deposed that it was further agreed by R4 that she shall have no right, title or claim in any of the properties of the deceased forthwith. Copy of said agreement dated 30.06.2001 on record is Ex. PW1/8. It was further deposed that R5 Ms. Poonam is the married daughter of the deceased from his first marriage with R4.
PW1 was only cross examined by ld counsel for R3/Insurance co., however, nothing has come on record in the said cross examination to discredit the testimony of PW1 on above said score.
Suit No.32207- Smt. Sunita Devi vs Prem Suresh Page 16 of 32The Hon'ble Karnataka High Court in case of Lalitha vs Sunil Kumar & Ors, I(2016) ACC 576 (DB)(Kar.) has interalia held as follows : "46....... It is held that a dependent of the deceased should not be denied the right to claim compensation without any justification in consonance with the principles of justice, equity and good conscience. The law is fairly settled..........
Definition of legal representative includes a wife but not the second wife whose marriage is void. But a second wife who is dependent upon the deceased, also becomes a legal representative under the act who is entitled to compensation payable on account of the death of the deceased................................................................. ...........
50. Therefore, in the instant case, on facts it is established that the deceased was living with the second wife; and the second wife and children were depending solely on the income of the deceased. Having regard to the provisions contained in Section 168 of the 1988 Act, it cannot be said that the second wife is not entitled to any Suit No.32207- Smt. Sunita Devi vs Prem Suresh Page 17 of 32 maintenance or that she has to be excluded from the compensation payable by the Tribunal. Therefore, we are of the view having regard to the intention of legislature as reflected in Section 168 of the 1988 Act, where it is a legal representative of the deceased and not a legal heir who is entitled to maintain a petition and when the definition of the term 'legal representative' includes intermeddler, the second wife, as she would be intermeddling with the estate of the deceased by virtue of the fact that she was living with him at the time of his death, would be entitled to maintain a petition. She also would be entitled to compensation, as a dependent as she was depending on him for her living and sustained loss on account of his death. At the same time the first wife, who had been living separately, for whatever reason and even if she was not dependent on the deceased, would be entitled to compensation, as a legally wedded wife and also as a person entitled to the estate of the deceased. Similarly the daughter of the second wife, though illegitimate, by virtue of Section 16(1) of Hindu Marriage Act, is to be treated as legitimate child. She would be Suit No.32207- Smt. Sunita Devi vs Prem Suresh Page 18 of 32 entitled to a share in the estate of the father as Class I heir and the petition filed by her cannot be dismissed nor she can be denied for compensation. In the light of aforesaid discussion, we are of the view that in the facts of the case, the order passed by the Tribunal holding that petition filed by the second wife is not maintainable is not correct and, therefore, it has to be set aside. The second wife, as dependent on the deceased and an intermeddler of his estate and who has sustained loss is entitled to compensation along with the first wife and her own daughter. Therefore, all of them are entitled to compensation..............................................". The above said judgment is squarely applicable on the facts of the present case. In the case in hand, the second wife (petitioner no.1) and her children (petitioners no. 2 to 4) who are the dependent upon the deceased also become the legal representative under the act who would be entitled to compensation along with R4(1st wife) and R5(daughter from 1st wife/R4) In the said circumstances, it can be safely held that the deceased was having eight legal representatives at the time of his death i.e. Sh. Ram Chander Chaudhary Suit No.32207- Smt. Sunita Devi vs Prem Suresh Page 19 of 32 (Petitioner no. 5/father), Smt. Sita Devi (mother who has since expired after the death of deceased), Smt. Sunita Devi (petitioner no. 1/2nd wife of the deceased), Abhishek Chaudhary, Ms. Neha and Ms. Preeti (petitioners no 2, 3 and 4 respectively i.e. children of deceased from petitioner no. 1/2nd wife), Smt. Lalita Devi (R4/1st Wife of deceased) and Smt. Poonam (R5/married daughter of deceased from R4/1st Wife).
The record and testimony of PW1 including the agreement Ex. PW1/8 would show and prove that R4 and R5 i.e. first wife of the deceased and her daughter respectively were living separately from the deceased for quite a long time and thus were not dependents upon him. In the said circumstances, the petitioners was thus having 6 dependents upon him at the time of his death i.e. petitioners no. 1 to 5 and Smt. Sita Devi (mother of deceased who expired subsequently).
It is a settled law that the number of the claimants at the time of arising of cause of action have to be seen. My views are substantiated by the judgment of Hon'ble Delhi High Court in case of Iffco Tokio General Insurance Co. Ltd. Vs Ashu Munjal, MAC. APP 277/2016, Date of decision 19.07.2017 wherein the Hon'ble Delhi High Court has held as under: Suit No.32207- Smt. Sunita Devi vs Prem Suresh Page 20 of 32 " 9. It is noted that when the accident claim was brought before the Tribunal, the mother of the deceased was alive. She having later died her name stood struck off. The fact remains that on the date of action arose there were four claimants. In this view, the deduction on account of personal and living expenses would be to the extent one fourth. ....."
In the present case, on the date the cause of action arose there were six claimants/dependents. In this view, the deduction on account of personal and living expenses would be to be extent of 1/4th as per judgment of Hon'ble Apex Court in case of Sarla Verma vs. Delhi Transport Corporation, 2009 ACJ 1298.
(d) Selection of multiplier:
PW1 has deposed that the deceased who was her husband was aged about 35 years at the time of his death. The photocopy of identity card of deceased issued by Election Commission of India (Mark X1) mentions his age as 30 years on 01.01.2002. In the said circumstances and in view of Mark X, his age as on his date of death i.e. 06.03.2007 would be around 35 years. It is a settled law that the Motor Vehicles Act, 1988 is a beneficial legislation and accordingly, the relevant multiplier would be taken as Suit No.32207- Smt. Sunita Devi vs Prem Suresh Page 21 of 32 "16" by taking the age of deceased as 35 years as per judgment in case of Sarla Verma (Supra).
(e) Loss of financial dependency In the light of aforesaid facts, loss of financial dependency of the petitioner comes to Rs. 4,99,680/ [i.e. Rs.3,470/ (per month income of the deceased) X 16 (multiplier) X 12 (months) X 3/4 (after deducting 1/4th dependency)]
9. Compensation under nonpecuniary heads:
Considering the facts and circumstances and date of accident, petitioners are entitled to Rs. 50,000/ towards loss of estate.
The petitioners would also be entitled to Rs. 1,50,000/ towards loss of love and affection and Rs.50,000/ towards funeral expenses of deceased. Petitioner no. 1 Smt. Sunita Devi is also entitled to Rs. 1,50,000/ towards loss of consortium. My views are substantiated by the judgments of Hon'ble Delhi High Court in the case if Shriram General Insurance Co. Ltd. V Usha, MAC.APP No. 160/2015 decided on 05.05.2016 and The New India Assurance Co. Ltd v Sanjeev Jain & Ors, MAC.APP No. 889/2014 decided on 23.05.2016.Suit No.32207- Smt. Sunita Devi vs Prem Suresh Page 22 of 32
10. Petitioners/claimants are accordingly entitled to compensation computed as under:
Loss of financial dependency Rs.4,99,680/ Loss of love and affection Rs.1,50,000/ Loss of Estate Rs. 50,000/ Loss of Consortium Rs. 1,50,000/ Funeral Expenses Rs. 50,000/ ________________ Total Rs.8,99,680/ ________________ (Rupees Eight Lakhs Ninety Nine Thoushand Six Hundred Eighty Only) The claimants/petitioners are also entitled to interest @ 9% p.a. for the date of filing of petition i.e. w.e.f 17.04.2007 till realisation of the compensation amount. The said interest @ 9% p.a. was awarded on the award amount by the Hon'ble Apex Court in case Municipal Corporation of Delhi vs. Association of Victims of Uphaar Tragedy, 2012 ACJ 48 (SC).
The amount of interim award, if any, shall however be deducted from the above amount, if the same has already been paid to the petitioners.
11.Liability In the case in hand, the insurance Suit No.32207- Smt. Sunita Devi vs Prem Suresh Page 23 of 32 company/R3 has examined Sh. N.K. Saxena, Assistant, New India Assurance co. as R3W1. He has deposed that policy no. 323401/31/06/02/1352 was issued to vehicle bearing registration no. DL 1GA0433 (offending vehicle) and the same has been proved as Ex. R3W1/1. He further deposed that the insurance co. had verified the driving licence no. 21858AG/03 through Sh. Jai Singh investigator from Agra Transport Authority and the report issued from Agra Transport Authority has been proved as Ex. R3W1/2 (colly). He deposed that driver was not holding a valid and effective driving licence on the date of accident.
He was cross examined only on behalf of petitioner wherein he has deposed that there is no document filed by them regarding the appointment of Sh. Jai Singh as an investigator. He further deposed that they have not issued any notice to the owner of the vehicle for production of insurance policy. He, however, volunteered that they had directed their counsel to issue the same. He deposed that they have confirmed from their counsel about the same and found that he had not issued the notice to owner of the vehicle.
Insurance co. has also examined Sh. Pramod Suit No.32207- Smt. Sunita Devi vs Prem Suresh Page 24 of 32 Kumar, Enforcement Senior Clerk, RTO Office, Transport Nagar, Agra, UP as R3W2 who has deposed that in the year 2003, the licences were issued from Serial No. 1 to 18272/AG/03 upto 31.12.2003 by the department and the licence no. 21858/AG/03 was not issued from the department. The report in that regard from licensing authority, Agra has been proved as Ex. R3W2/1.
He was cross examined only on behalf of petitioner wherein interalia he has deposed that the letter R3W1/2 was issued from his department. The certified copy of driving licence of R1/driver as filed on record along with criminal case record of FIR No. 337/07 P.S. Saraswati Vihar u/s 279/304A IPC would show that the driving licence number of R1 is 21858/AG/03 as issued on 31.12.2003 from licensing authority, Agra.
In view of testimonies of R3W1 and R3W2, it is ample clear that R1 was having only a fake licence as the said licence was never issued by the said Agra Authority by which it is purported to be issued and as such R1 was not legally authorised to drive the offending vehicle at the relevant time.
12. It is not out of place to discuss that in the case Suit No.32207- Smt. Sunita Devi vs Prem Suresh Page 25 of 32 of Prem Kumari & Ors. Vs Prahlad Devi & Ors. II (2008) 477 (SC), the Hon'ble Apex Court has observed that even if the license of driver is fake, still the insurer would continue to remain liable and the insurer after paying the compensation is entitled to recover the said amount from driver and owner of offending vehicle as per procedure established by law.
13. In the present case, though, it is shown on record that R1 was not having valid driving licence to drive the offending vehicle at the relevant time, yet in view of above said judgment in the case of Prem Kumari (Supra), the New India Assurance company (R3) is under statutory obligation to pay compensation to the petitioner and it can very well recover the same from R1 and R2 as per rules as procedure established by law.
Accordingly, in the case in hand, New India Assurance co. Ltd/R3 is directed to deposit the awarded amount of Rs. 8,99,680/ within 30 days from today within the jurisdiction of this Tribunal i.e. State Bank of India, Rohini Courts Complex Branch, Delhi alongwith interest at the rate of 9 % per annum from the date of filing of the Suit No.32207- Smt. Sunita Devi vs Prem Suresh Page 26 of 32 petition till notice of deposition of the awarded amount to be given by R3 to the petitioners and their advocates and to show or deposit the receipt of the acknowledgement with the Nazir as per rules. The insurance co. is further directed to deposit the awarded amount in the above said bank by means of cheque drawn in the name of above said bank alongwith the name of the claimants mentioned therein. The said bank is further directed to keep the said amount in fixed deposit in its own name till the claimants approach the bank for disbursement, so that the awarded amount starts earning interest from the date of clearance of the cheque.
APPORTIONMENT
14. Statement of petitioners in terms of clause 26 MCTAP was recorded. I have heard the petitioners and ld. counsel for the petitioners/claimants regarding financial needs of the injured/petitioner and in view of the judgment in the case of General Manager, Kerala State Road Transport Corporation Vs. Susamma Thomas & Others, 1994 (2) SC, 1631, for appropriate investments to safeguard the amount from being frittered away by the beneficiaries owing to their ignorance, illiteracy Suit No.32207- Smt. Sunita Devi vs Prem Suresh Page 27 of 32 and being susceptible to exploitation, following arrangements are hereby ordered: Keeping in view the facts and circumstances of the case, on realization, an amount of Rs. 1,00,000/ each be given to petitioners nos. 2 to 4 who are the minor children (as per copy of their birth certificates Ex. PW1/4 to Ex. PW1/6 on record) of deceased from petitioner no.1 (2nd wife) and same be kept in FDRs in their names till they attain the age of majority without the facility of advance, loan and premature withdrawal without the prior permission of the Tribunal.
Further, an amount of Rs. 1,00,000/ be given to Sh. Ram Chander Chaudhary/petitioner no.5 (who is father of deceased) out of which an amount of Rs. 25,000/ be released to him in cash and remaining amount be kept in 12 FDRs of equal amount for a period of one month to 12 months with cumulative interest without the facility of advance, loan and premature withdrawal without the prior permission of the Tribunal.
Further, an amount of Rs. 1,50,000/ be given to Smt. Lalita Devi/respondent no. 4 (who is 1 st Wife of deceased but was living separately from the Suit No.32207- Smt. Sunita Devi vs Prem Suresh Page 28 of 32 deceased) out of which an amount of Rs. 50,000/ be released to her in cash and remaining amount be kept in 12 FDRs of equal amount for a period of one month to 12 months with cumulative interest without the facility of advance, loan and premature withdrawal without the prior permission of the Tribunal.
Further, an amount of Rs. 1,00,000/ be given to Smt. Poonam/respondent no. 5 (who is daughter of deceased from R4 but was living separately from the deceased) out of which an amount of Rs. 25,000/ be released to her in cash and remaining amount be kept in 12 FDRs of equal amount for a period of one month to 12 months with cumulative interest without the facility of advance, loan and premature withdrawal without the prior permission of the Tribunal.
Further, remaining amount with interest be given to Smt. Sunita Devi/petitioner no.1 (who is second wife of deceased and was living with the deceased at the time of accident) out of which an amount of Rs. 1,50,000/ be released to her in cash and remaining amount be kept in 48 FDRs of equal amount for a period of one month to 48 months with Suit No.32207- Smt. Sunita Devi vs Prem Suresh Page 29 of 32 cumulative interest without the facility of advance, loan and premature withdrawal without the prior permission of the Tribunal in their names subject to the following directions:
(i) The interest on the fixed deposits be paid monthly to the claimants/petitioners.
(ii) The monthly interest be credited automatically in the saving account of the claimants/petitioners.
(iii) Original fixed deposit receipts be retained by the bank in safe custody. However, a passbook of the FDRs be given to the claimants/petitioners alongwith the photocopy of the FDRs be given to claimants/petitioners. At the time of maturity, the fixed deposit amount shall be automatically credited in the savings bank account of the Claimants/petitioners.
(iv) No cheque book/Debit Card be issued to the claimants/petitioners without permission of the Court.
(v) No loan, advance or withdrawal be allowed on the fixed deposits without permission of the Court.
(vi) The Bank shall not permit any joint name(s) Suit No.32207- Smt. Sunita Devi vs Prem Suresh Page 30 of 32 to be added in the savings bank account or fixed deposit accounts of the victims.
(vii) Half yearly statement of account be filed by the Bank before the Tribunal.
15. Relief Since the offending vehicle was duly insured, Respondent no 3New India Assurance co. Ltd is directed to deposit the award amount of Rs. 8,99,680/ with interest @ 9% per annum from the date of filing of petition i.e. 17.04.2007 till realization within the jurisdiction of this Tribunal i.e. SBI, Rohini Court Complex Branch, Delhi within 30 days from today under intimation of deposition of the awarded amount to be given by R3 to the petitioner and his advocate failing which the insurance co. shall be liable to pay interest @ 12% per annum from the period of delay beyond 30 days. The Insurance co. is also directed to place on record the proof of the award amount, proof of delivery of notice in respect of deposit of the amount in the above said bank to the claimants and complete details in respect of calculations of interest etc in the court within 30 days from today.
Suit No.32207- Smt. Sunita Devi vs Prem Suresh Page 31 of 32A copy of this judgment/award be sent to respondent no. 3 New India Assurance co. Ltd/R3 for compliance within the granted time. Nazir is directed to place a report on record in the event of nonreceipt/deposit of the compensation amount within the granted time.
16. A copy of this award be forwarded to the concerned Metropolitan Magistrate in terms of the orders passed by the Hon'ble High Court in FAO 842/2003 Rajesh Tyagi Vs. Jaibir Singh & Ors. vide order dated 12.12.2014.
17. File be consigned to record room as per rules after compliance of necessary legal formalities. Copy of order be given to parties for necessary compliance as per rules.
Announced in open court (AMIT BANSAL)
on 31 October 2017 PO MACT N/W
Rohini Courts, Delhi.
Suit No.32207- Smt. Sunita Devi vs Prem Suresh Page 32 of 32