Delhi District Court
Mr. Saroj Chaudhary vs Mr. Lalu Ram (Driver Of Vehicle ... on 21 December, 2018
IN THE COURT OF MR. S. S. MALHOTRA: PO:MACT1 (NORTH):
ROHINI: DELHI
MACT No. 4369/16
FIR No. 65/09
PS Others
Mr. Saroj Chaudhary
S/o Mr. Munni Chaudhary
R/o X483, Mangolpuri, Delhi.
Also at: Village Jarde, PS Meral,
District Garhwa, State Jharkhand.
....Petitioner
VERSUS
1. Mr. Lalu Ram (driver of vehicle no.CG04J2995)
S/o Mr. Deepan Ram
R/o Village Chirai, Tehsil Semri,
District Surguja, State Chhatisgarh,
2. Mr. M/s Maharaja Road Lines (owner of vehicle no.CG04J2995)
Ring Road no.2, Banpuri,
Raipur, District Raipur, Chhatisgarh.
3. United India Insurance Company Limited
(insurer of vehicle no.CG04J2995)
Div. OfficeXVI, A1, Kirti Place,
Kirti Nagar, New Delhi.
4. Mr. Suraj Kumar Yadav (driver of vehicle no.JH14A5777)
S/o Mr. Bishnudeo Yadav
R/o Vill. & P. O. Bhawanathpur,
District Garhwa.
5. Mr. Uday Chand Prasad (owner of vehicle no.JH14A5777)
S/o Late Mr. Bhindhyachal Prasad
R/o Vill. & P. O. Meral, District Garhawa,
Jharkhand.
Suit no. 4369/16 Saroj Chaudhary Vs. Lalu Ram & ors. Page 1 of 19
6. Reliance Insurance Company Limited
(insurer of vehicle no.JH14A5777)
At Plot no.60, Okhla Industrial Area,
Okhla, New Delhi.
....Respondents
DATE OF INSTITUTION : 04.12.2010
JUDGMENT RESERVED ON : 18.12.2018
DATE OF JUDGMENT : 21.12.2018
FORM - IV A
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN DEATH CASES TO BE INCORPORATED IN THE AWARD
1. Date of accident: 13.03.2009.
2. Name of deceased: Atawaria Devi.
3. Age of the deceased: 20 years.
4. Occupation of the deceased: Maid/servant.
5. Income of the deceased: Rs.6,000/ per month as per petition (not proved)
6. Name, age and relationship of legal representatives of deceased:
S.No. Name Age Relation
(i) Mr. Saroj Chaudhary 23 years Husband
Computation of Compensation
S.No. Heads Awarded by the Claims
Tribunal
7. Income of the deceased (A) 99 x 26 = 2,574/ per month
(minimum wages in Bihar on
daily basis)
8. AddFuture Prospects (B) Rs.1,029.60 (40%)
9. LessPersonal expenses of the deceased 3063.06 per month (85% being (C) no dependent upon victim) Suit no. 4369/16 Saroj Chaudhary Vs. Lalu Ram & ors. Page 2 of 19
10. Monthly loss of dependency Petitioner is husband of { (A+B) - C =D} deceased and was not financially dependent upon the deceased but monthly loss to estate, in terms of the facts mentioned in para 11 herein after, comes to Rs.540.54 (3603.6 − 3063.06) as per judgment in Keith Rowe Vs. Prashant Sagar & Ors.)
11. Annual loss of dependency (Dx12) 6486.48 12. Multiplier (E) 18
13. Total loss of dependency (Dx12xE = F) 1,16,756.64
14. Medical Expenses (G) Nil
15. Compensation for loss of love and Nil affection (H)
16. Compensation for loss of consortium 40,000/ (I)
17. Compensation for loss of estate (J) Nil
18. Compensation towards funeral 15,000/ expenses (K)
19. TOTAL COMPENSATION 1,71,756.64 (F+G+H+I+J+K =L)
20. RATE OF INTEREST AWARDED 9% per annum 21 Interest amount up to the date of 1,26,241.13 (1,71,756.64 x compliance (M) 9/100 x 98/12) from 4.12.10 to 4.2.19
22. Total amount including interest (L+M) 2,97,997.77 (rounded as 2,98,000/)
23. Award amount released 10% to petitioner
24. Award amount kept in FDRs 90% of petitioner
25. Mode of disbursement of the award Phased manner amount to the claimant (s) (Clause 29) Suit no. 4369/16 Saroj Chaudhary Vs. Lalu Ram & ors. Page 3 of 19
26. Next date for compliance of the award. 04.02.2019 (Clause 31) FORM - V COMPLIANCE OF THE PROVISIONS OF THE MODIFIED CLAIMS TRIBUNAL AGREED PROCEXDURE TO BE MENTIONED IN THE AWARD
1. Date of the accident 13.03.2009 The present case pertains to outstation road accident.
2. Date of intimation of the accident by the investigating No intimation by officer to the Claims Tribunal (Clause 2) police
3. Date of intimation of the accident by the investigating do officer to the insurance company. (Clause 2)
4. Date of filing of Report under section 173 Cr.P.C. Not known before the Metropolitan Magistrate (Clause 10)
5. Date of filing of Detailed Accident Information Report No DAR filed (DAR) by the investigating Officer before Claims Tribunal (Clause 10)
6. Date of Service of DAR on the Insurance Company N/A (Clause 11)
7. Date of service of DAR on the claimant(s). (Clause 11) do
8. Whether DAR was complete in all respects? (Clause 16) do
9. If not, whether deficiencies in the DAR removed later do on?
10. Whether the police has verified the documents filed do with DAR? (Clause 4)
11. Whether there was any delay or deficiency on the part do of the Investigating Officer? If so, whether any action/direction warranted?
12. Date of appointment of the Designated Officer by the Not known insurance Company. (Clause 20) Suit no. 4369/16 Saroj Chaudhary Vs. Lalu Ram & ors. Page 4 of 19
13. Name, address and contact number of the Designated do Officer of the Insurance Company. (Clause 20)
14. Whether the designated Officer of the Insurance No Company submitted his report within 30 days of the DAR? (Clause 20)
15. Whether the insurance company admitted the liability? No If so, whether the Designated Officer of the insurance company fairly computed the compensation in accordance with law. (Clause 23)
16. Whether there was any delay or deficiency on the part N/A of the 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 N/A Insurance Company. (Clause 24)
18. Date of the Award 21.12.2018
19. Whether the award was passed with the consent of the No parties? (Clause 22)
20. Whether the claimant(s) were directed to open saving Yes bank account(s) near their place of residence? (Clause
18)
21. Date of order by which claimant(s) were directed to 23.04.2018 open saving bank account (s) near his place of residence and produce PAN Card and Aadhar Card and the direction to the bank not issue any cheque book/debit card to the claimant(s) and make an endorsement to this effect on the passbook(s). (Clause 18)
22. Date on which the claimant (s) produced the passbook 05.11.2018 of their saving bank account near the place of their residence along with the endorsement, PAN Card and Aadhar Card? (Clause 18)
23. Permanent Residential Address of the Claimant(s) X483, (Clause 27) Mangolpuri, Delhi.
Also at: Village Jarde, PS Meral, Suit no. 4369/16 Saroj Chaudhary Vs. Lalu Ram & ors. Page 5 of 19 District Garhwa, State Jharkhand.
24. Details of saving bank account(s) of the claimant(s) and Petitioner has a the address of the bank with IFSC Code (Clause 27) saving bank account with V. G. Bank, Garhwa Branch, having account no.
84025798584.
25. Whether the claimant(s) saving bank account(s) is near Yes his/her place of residence? (Clause 27)
26. Whether the claimant(s) were examined at the time of Yes passing of the award.
AWARD
1. This is a claim petition U/s 166 & 140 of The Motor Vehicle's Act, 1988, filed by petitioners with respect to accident outside Delhi. Coming to the facts of the case, it is stated that on 13.03.2009 the deceased Atawaria Devi was going alongwith her brother by travelling in a magic van no.JH14A 5777 (legal for carrying passengers) to Railway Station Rehala (Garhwa Road) for going to Delhi and at about 08:00 am when magic van reached near Khajuri Gaon Lagma, suddenly one truck bearing no.CG04J2995 which was being driven by its driver/respondent no.1 at a high speed, in a rash and negligent manner came from front side and hit the magic van in which Atawaria Devi was travelling. The travellers of magic van sustained grievous injuries and they were removed to Sadar Hospital Garhwa, from where injured Atawaria Devi was referred to R. I. M. S. Ranchi but she expired during her treatment at R. I. M. S. Ranchi on 18.03.2009.
2. Contending that said accident took place, due to rash and negligent driving Suit no. 4369/16 Saroj Chaudhary Vs. Lalu Ram & ors. Page 6 of 19 of truck bearing no.CG04J2995 by Mr. Lalu Ram (respondent no.1), which was owned by M/s Maharaja Road Lines (respondent no.2) and insured with United India Insurance Company Limited (respondent no.3) AND also attributed rash and negligent driving of magic van no.JH14A 5777 by Mr. Suraj Kumar Yadav (respondent no.4), which was owned by Mr. Uday Chand Prasad (respondent no.5) and insured with Reliance General Insurance Company Limited (respondent no.6) the petitioners have filed/amended the present claim thereby claiming a sum of Rs.10,00,000/ (Ten lacs) from respondents as compensation, alongwith interest @ 12% per annum from the date of filing of claim petition till its realization. A sum of Rs.50,000/ as interim award is also prayed for.
3. Respondents no.1, 2, 3, 4, 5 and 6 i.e. all the respondents have contested the claim by filing their respective written statements. Respondents no.1 and 2 have filed their joint written statement stating therein that the petitioner cannot be allowed to take advantage of wrongs of the deceased and the answering respondents cannot be held liable for the injuries sustained by deceased and therefore the answering respondents are not liable to pay anything to the petitioner.
4. Respondent no.3 filed its separate written statement inter alia stating therein that the accident, if any, was caused due to negligence on the part of the driver of the vehicle no.JH14A5777 (Magic Van) and the said driver was not holding a valid and effective driving licence at the time of accident, which has caused the accident and hence answering respondent is not liable to pay any compensation.
5. Respondents no.4 and 5 have filed their joint written statement denying all the averments made in the claim petition.
Suit no. 4369/16 Saroj Chaudhary Vs. Lalu Ram & ors. Page 7 of 19
6. Respondent no.6 filed its separate written statement stating therein that the deceased sustained injuries because of sole negligence on the part of the driver of the truck being driven by respondent no.1 and not because of any wrongful act or negligence on the part of the driver of the magic van. It is stated that if it is found that the driver of vehicle no.JH14A5777 was not holding a valid and effective driving licence at the time of alleged accident or that he was not driving the vehicle as per the instruction of the owner of the vehicle or that the owner of the vehicle was not having any permit to ply his vehicle on road as alleged and then the answering respondent would not be liable to pay anything to the petitioners.
7. After completion of the proceedings, following issues were framed/amended on 18.04.2016:
(i) Whether the deceased Atawaria Devi suffered fatal injuries in the road accident on 13.03.2009 at about 08:00 am near Khajuri Gaon, Garhwa with jurisdiction of PS Garhwa due to composite negligence of Truck no.
CG04J2995 and Magic Van bearing registration no. JH14A5777 which were being driven rashly and negligently by respondent no.1 and respondent no.4 respectively, owned by respondent no.2 and respondent no.5 respectively and insured with respondent no.3 and respondent no.6 respectively? OPP.
(ii) Whether the petitioners/LRs of deceased are entitled for compensation. If so, to what amount and from which of the respondents? OPP.
(iii) Relief.
8. In order to prove their claim, petitioner examined himself as PW1 and Mr. Ram Lakhan Ram as PW2. Respondent no.6 examined Mr. Rahul Chauhan as R6W1. Respondents no.1, 2, 3, 4 and 5 have not led any defence Suit no. 4369/16 Saroj Chaudhary Vs. Lalu Ram & ors. Page 8 of 19 evidence.
9. I have heard ld. counsels appearing on behalf of petitioner, respondent no.3 and respondent no.6. My issuewise findings are as under: ISSUE No.1: Whether the deceased Atawaria Devi suffered fatal injuries in the road accident on 13.03.2009 at about 08:00 am near Khajuri Gaon, Garhwa with jurisdiction of PS Garhwa due to composite negligence of Truck no. CG04J2995 and Magic Van bearing registration no. JH14A5777 which were being driven rashly and negligently by respondent no.1 and respondent no.4 respectively, owned by respondent no.2 and respondent no.5 respectively and insured with respondent no.3 and respondent no.6 respectively? OPP.
10. The onus to prove this issue was upon the petitioner. PW1 Mr. Saroj Chaudhary has deposed in his affidavit Ex.PW1/1 in terms of the claim petition.
11. PW2 Mr. Ram Lakhan Ram stated to be an eyewitness of the accident deposed that on 13.03.2009, he alongwith his brotherinlaw Inder Chand Baitha (who was also a deceased in another claim petition) was travelling in magic van no.JH14A5777 and at about 08:00 am when magic van reached near Khajuri Gaon Lagma, suddenly one truck bearing no.CG04J2995 which was being driven by its driver/respondent no.1 at a high speed, in a rash and negligent manner came from front side and hit the magic van in which he was travelling. He deposed that the travellers of magic van sustained grievous injuries and at the time of accident he was sitting on the rear seat of magic van and he also sustained simple injuries.
12. I have perused the testimony of PW1 and PW2. They have deposed on the line of petition. From all the documents, testimony of the said witnesses appear to be trustworthy as the evidence of eyewitness and PW1 are on the Suit no. 4369/16 Saroj Chaudhary Vs. Lalu Ram & ors. Page 9 of 19 same lines. PW2 Mr. Ram Lakhan Ram, who is stated to be the eye witness, in his affidavit stated that the accident took place due to rash and negligent driving of truck. Respondent no.3 has alleged about rash and negligent driving by respondent no.4 but has not led any evidence. Respondent no.1 has not led any evidence. Respondent no.6 has defended the case by filing its evidence and in response to the same respondent no.1 has not levelled any specific allegation against respondent no.4. No doubt respondent no.4 was driving the Magic vehicle. Although there is no specific evidence against the respondent no.4 and the police has not implicated respondent no.4 as an accused but this is not the end of the matter. The Court has to consider all such facts and prima facie it is clear that the driver of Magic van has been able to prove that he was having a valid driving licence on the date of accident. Once he is possessing the driving licence, negligence on his part per se cannot be presumed but as per the version of eyewitness, it was a head on collision. Although such minute details cannot be expected from the eyewitness but IO had to collect evidence on such aspects which he has not collected and here comes the role of the court from the facts as explained by the eyewitness and from such facts the rash and negligent driving on the part of Magic driver cannot be ruled out. Since it was a head on collision, it cannot be said that the respondent no.4 was totally innocent. From the facts which have come on record, it is clear that the deceased scumbed to injuries on account of accident caused by respondent no.1. Neither respondent no.1 nor respondent no.4 had approached to any higher authority or any forum against their false implication in this case and respondent no.1 and respondent no.4 have not led any evidence and as such have failed to prove Suit no. 4369/16 Saroj Chaudhary Vs. Lalu Ram & ors. Page 10 of 19 as to how exactly the accident happened or how they were not negligent. Respondents no.1 and 4 were supposed to explain as to from what distance they saw each other's vehicle coming from front side, whether it was a turn or whether there was a divider or not. All such facts which were supposed to be clarified by the respondents no.1 and 4 have not been proved by them. Although, it cannot be said in the present proceedings as to who exactly was negligent and in what ratio but keeping in view of the record / the statement of eyewitness and the preponderance of probabilities, it is clear that it was rash and negligent driving by respondent no.1 and of respondent no.4 both, which resulted into the accident, and caused the death of Ms. Atawaria Devi. Criminal case record is placed on file to show that respondent no.1 was indicted by police for offences punishable under Section 279/337/338/304A IPC but as per the evidence and facts respondent no.4 was also responsible for the accident. Apart from deposition of petitioner no.1 and eyewitness, the fact that victim died due to injuries suffered in accident in question is also supported by postmortem report of victim placed on record. In this way, the petitioner has been able to prove that Ms. Atawaria Devi died on account of accident in question and the same was caused due to composite rash and negligent driving of truck bearing no.CG04J2995 by respondent no.1 and magic van no.JH 14A5777 by respondent no.4.
13. The issue is therefore decided in favour of the petitioner and against respondents by holding that accident in question was caused due to rash or negligent driving of truck bearing no.CG04J2995 by respondent no.1 and magic van no.JH14A5777 by respondent no.4 thereby causing death of Ms. Atawaria Devi. In what ratio the compensation would be given would Suit no. 4369/16 Saroj Chaudhary Vs. Lalu Ram & ors. Page 11 of 19 be discussed hereinafter.
ISSUE No.2: Whether the petitioners/LRs of deceased are entitled for compensation. If so, to what amount and from which of the respondents? OPP.
14. It is not disputed during arguments that petitioner is LR of victim.
Moreover, this fact is established by statement of Mr. Saroj Chaudhary (PW1) husband of victim. Being LR of deceased, petitioner is well within his rights to claim compensation from respondents.
15. Now coming to the extent of compensation. It is deposed by PW1 Mr. Saroj Chaudhary that at the time of accident deceased was about 19 years of age and was earning Rs.9,500/ per month. However there is no evidence except deposition of petitioner to verify that his wife was earning Rs.9,500/.
16. As there is no proof that the deceased was residing at Delhi and it is admitted by the PW1 that he has not filed any document regarding residential proof of Delhi and he was residing at Mangolpuri, Delhi and his ration card and voter Icard were also issued at the address of Jharkhand and even otherwise, the facts with respect to jurisdiction have been raised by respondent no.3 but since it has not led any evidence on this aspect and therefore the court is not rejecting the petition on the ground of having no territorial jurisdiction, but simultaneously it cannot be held nor it has been proved that deceased was residing in Delhi and it is presumed that she was residing in her native place and therefore, minimum wages of Bihar is being taken for calculating the extent of compensation with respect to her loss of dependency. The minimum wages at the prevalent time in Bihar was Rs.99/ per day which means 99 x 26 = 2,574/ per month at that time.
Suit no. 4369/16 Saroj Chaudhary Vs. Lalu Ram & ors. Page 12 of 19
17. As per the judgment in the case of National Insurance Company Limited Vs. Pranay Sethi and others of Hon'ble Supreme Court, 40% of the salary is added. Apparently the salary of the deceased which is stated to be not taxable. Keeping in view the fact that deceased was 19 years old, therefore the income for the purpose of loss of dependency has to be taken as Rs.3,603.60 (2,574/ + 1,029.60) per month. It is pointed out by ld. counsel for petitioner that victim was married, survived by her husband.
18. As stated above, it is admitted fact that deceased was the husband of petitioner and except the petitioner, there is only one legal heir of deceased and in terms of the judgment in Sarla Verma Vs. DTC 2009 ACJ 1298 SC, petitioner is not financially dependent upon deceased and therefore he would be entitled to the compensation for loss of estate only in terms of the judgment in Keith Rowe Vs. Prashant Sagar & Ors MAC.APP.No.601/2007 decided on 15 January2010 wherein the Hon'ble High Court has summarised the law with respect to such cases where LRs is/are not financially dependent upon the deceased as under:
"(i) The law contemplates two categories of damages on the death of a person. The first is the pecuniary loss sustained by the dependent members of his family as a result of such death. The second is the loss caused to the estate of the deceased as a result of such death. In the first category, the action is brought by the legal representatives, as trustees for the dependents beneficially entitled. In the second category, the action is brought by the legal representatives, on behalf of the estate of the deceased and the compensation, when recovered, forms part of the assets of the estate. In the first category of cases, the Tribunal in exercise of power under Section 168 of the Act, can specify the persons to whom compensation should be paid and also specify how it should be distributed.
(ii) Where the claim is by the dependents, the basis for award of compensation is the loss of dependency, that is loss of what was contributed by the deceased to such claimants. A conventional amount is awarded towards loss of expectation of life, under the head of loss to Suit no. 4369/16 Saroj Chaudhary Vs. Lalu Ram & ors. Page 13 of 19 estate.
(iii) Where the claim by the legal representatives of the deceased who were not dependents of the deceased, then the basis for award of compensation is the loss to the estate, that is the loss of savings by the deceased. A conventional sum for loss of expectation of life, is added.
(iv) The procedure for determination of loss to estate is broadly the same as the procedure for determination of the loss of dependency. Both involve ascertaining the multiplicand and capitalising it by multiplying it by an appropriate multiplier. But, the significant difference is in the figure arrived at as multiplicand in cases where the claimants who are dependents claim loss of dependency, and in cases where the claimants who are not dependents, claim loss to estate. The annual contribution to the family constitutes the multiplicand in the case of loss of dependency, whereas the annual savings of the deceased becomes the multiplicand in the case of loss to estate. The method of selection of multiplier is however the same in both cases."
19. Now coming to the multiplier aspect. As discussed herein above, petitioner is entitled to compensation on account of loss of estate only and in Keith Rowe Vs. Prashant Sagar & ors. MAC appeal no.601 of 2007 decided on 15.01.2010, it has also been settled that multiplier would however remain same and it is only the head under which the petitioner would likely to succeed would change.
20. Since the victim was stated to be 19 years of age at the time of accident, a multiplier of 18 is taken. In case, where the petitioners / claimants were not financially dependent upon the victim, the illustration given in Keith Rowe Vs. Prashant Sagar & ors. MAC appeal no.601 of 2007 decided on 15.01.2010, by the Hon'ble Court are helpful which reads as under:
l........
ll..........
lll..............
iv.................
(v) if the deceased was a bachelor and the claimants are two non dependent brothers / sisters aged 47 years and 45 years with independent Suit no. 4369/16 Saroj Chaudhary Vs. Lalu Ram & ors. Page 14 of 19 income, the position would be different. As the deceased did not have a 'family', the tendency would be to spend more on oneself and the saving would be hardly 15%. If the saving is taken as 15% (Rs. 1350/ per month), the annual saving would be Rs. 16,200/ which would be the multiplicand.
The multiplier will be 13 with reference to the age of the claimants and the loss of estate would be Rs. 2,10,600/ per annum. The above will apply where the family consists of nondependent spouse/children/parents. Where the claimants are nondependent brothers/sisters claiming on behalf of the estate, the saving can be taken as 15% of the income. The above percentage, one of course, subject to any specific evidence to the contrary led by the claimants.
21. Therefore, loss to estate is taken as 15% of the income i.e. Rs.2,574/ + 1,029.60 (40%) = 3,603.60 x 18 x 12 = 7,78,377.60, 15% of which comes to Rs.1,16,756.64 and after adding Rs.15,000/ towards funeral expenses and Rs.40,000/ towards loss of consortium, it comes to Rs.1,71,756.64 and after adding 98 months interest @ 9% per annum, a total compensation of Rs.2,97,997.77, rounded off to Rs.2,98,000/ is awarded to the petitioner, details of which are mentioned in the above proforma.
22. It has already been held that the deceased had expired due to rash and negligent driving of respondents no.1 and respondent no.4. The petitioner has made the respondents no.3 and 6 (insurance companies) as the party and prayed that the respondents no.3 and 6 jointly are directed to pay the compensation to the petitioner. It is not in dispute that the offending vehicles were insured with the respondents no.3 and 6 on the date of accident.
23. Respondent no.3 is the insurance company of offending vehicle no.CG04J 2995 and it has contended that it is not liable to pay any compensation as the accident, if any, was caused due to negligence on the part of the driver of the vehicle no.JH14A5777 and he was not holding a valid and effective Suit no. 4369/16 Saroj Chaudhary Vs. Lalu Ram & ors. Page 15 of 19 driving licence at the time of accident, which has caused the accident but respondent no.3 has not led any evidence to prove the said facts. The allegations levelled in the written statement howsoever strong that may be cannot take place of proof particularly therein when insurance company despite having raised this issue has not led any positive evidence on this aspect. In view of the above and since the respondent no.3 has no statutory defence, respondent no.3 is liable to pay compensation to the petitioner.
24. Respondent no.6 is the insurance company of offending vehicle no.JH 14A5777 and has contended that it is not liable to pay compensation, as the driver (respondent no.4) was not holding valid driving licence at the time of accident.
25. Respondent no.6 has also examined Mr. Rahul Chauhan as R6W1 who deposed that notice under Order 12 Rule 8 of CPC was got issued to the respondents no.4 and 5 to produce the driving licence, original insurance policy, permit and registration certificate of vehicle no.JH14A5777 which were valid on the date of accident and he proved copy of notice as Ex.R6W1/1 and Ex.R6W1/2, its postal receipts as Ex. R6W1/3 and Ex.R6W1/4, copy of insurance policy as Ex.R6W1/6, tracking report as Ex.R3W1/5 and returned envelope as Ex.R3W1/6. He deposed that the owner has deliberately violated the terms and conditions of the policy by handing over the vehicle to a person who was not having valid driving licence to drive the vehicle and respondents no.4 and 5 failed to produce the said documents. During the course of investigation, the police officials seized the driving licence of respondent no.4 which was valid upto 01.11.2010 in the name of Suraj Kumar for LMV and the date of accident was 13.03.2009 thereby meaning that the said driving licence was valid on Suit no. 4369/16 Saroj Chaudhary Vs. Lalu Ram & ors. Page 16 of 19 the date of accident. In the case of Mukund Dewangan Vs. Oriental Insurance Company Limited, Civil Appeal no.5826 of 2011 it was held that a person having a valid driving licence can drive transport vehicle as well. Therefore this contention of counsel for respondent no.6 does not have any force.
26. Copy of permit has not been placed on file. Therefore the insurance company i.e. respondent no.6 has been able to prove that the insured vehicle was being driven by its driver without valid permit and it is entitled to recovery rights. Since the vehicle is duly insured, respondent no.6 is thus primarily liable to pay amount of compensation to petitioner. For all this reason, respondent no.6 is held entitled to recover the amount of compensation from insured/owner/driver but after making payment to petitioner.
27. This issue is therefore decided in favour of the petitioner and against respondents by holding that respondents no.3 and respondent no.6 are liable to pay compensation to the petitioner. However in these facts and circumstances, it is ordered that respondents no.3 and 6 would pay the compensation in the ratio of 75:25. 75% of the amount payable by respondent no.3. As far as remaining 25% of the amount payable by respondent no.6 is concerned, the same is payable by respondent no.6 first, who has a right to recover it from respondents no.4 and 5. ISSUE NO.3 (RELIEF)
28. Petition in hands is allowed. Respondents no.3 and respondent no.6 are directed to pay Rs.1,71,756.64 (2,98,000/ alongwith interest upto the date of compliance) to the petitioner in the ratio of 75:25 as compensation in this case, within 30 days from today, along with interest @ 9% p.a. from Suit no. 4369/16 Saroj Chaudhary Vs. Lalu Ram & ors. Page 17 of 19 the date of filing of claim petition i.e. 04.12.2010 till realization of amount. Amount of interim compensation (if any) be deducted from this amount.
29. On 05.11.2018, petitioner gave statement about disbursement of amount of compensation.
30. Considering circumstances of petitioner and after consulting ld. counsel representing him, it is directed that 90% of the amount of compensation be invested in FDRs in any nationalized bank in his name be given to him by way of monthly FDRs/installments of Rs.10,000/ to be directly credited in his account alongwith interest accrued thereon. Remaining 10% of amount of compensation be disbursed to him by way of transferring the same in his saving bank account that too in terms of modified directions and where from the petitioner would be allowed to withdraw the same through withdrawal slip only and by no other mode/modes i.e. ATM/ debit card/credit card/letter/NEFT/RTGS etc.
31. The salient features as prescribed in the judgment in Rajesh Tyagi Vs. Ramesh Chandra Gupta FAO No. 842/2009 and MAC. App. No. 422/2009 decided on 07.11.2014 are to be applied:
(i) The fixed deposit be renewed automatically till the period prescribed by the Court.
(ii) The interest on the fixed deposit be paid monthly.
(iii) The monthly interest be credited automatically in the saving account of the claimant.
(iv) Original fixed deposit receipt be retained by the bank in safe custody.
However, the original passbook shall be given to the claimant along with the photocopy of the FDR.
(v) The original fixed deposit receipt be handed over to the claimant at the Suit no. 4369/16 Saroj Chaudhary Vs. Lalu Ram & ors. Page 18 of 19 end of the fixed deposit period.
(vi) Photo identity card shall be issued to the claimant and the withdrawal shall be permitted only after due verification by the Bank of the identity card of the claimant.
(vii) No cheque book/ATM/debit card/credit card shall be issued to the claimant without permission of the Court.
(viii) No loan, advance or withdrawal or premature encashment shall be allowed on the fixed deposit without permission of the Court.
32. Respondents no.3 and 6 are directed to deposit entire amount of compensation with this tribunal, within 30 days from today, with advance Digitally signed by notice to petitioners. SUKHVIR SUKHVIR SINGH SINGH MALHOTRA File be consigned to record room. Date: 2018.12.21 MALHOTRA 16:15:46 +0000 ANNOUNCED IN THE OPEN (S. S. MALHOTRA) Court on 21.12.2018 PO, MACT NORTH, ROHINI, DELHI Suit no. 4369/16 Saroj Chaudhary Vs. Lalu Ram & ors. Page 19 of 19