IN THE COURT OF SH. [ENTITY], PRESIDING OFFICER-MOTOR ACCIDENT CLAIMS TRIBUNAL, SHAHDARA DISTRICT, KKD, DELHI MAC No. 924/16 (Old No. 112/13) 1. Smt. [ENTITY] (Wife) W/o Sh. [ENTITY] 2. [ENTITY] S/o Sh. [ENTITY] 3. Master [ENTITY] S/o Sh. [ENTITY] 4. [ENTITY] S/o Sh. [ENTITY] (Petitioners No. 3 & 4 minor through Mother being natural guardian) All R/o H. No. 1213-B, Gauri Pur Town, Village English, Anchal, Police Station Pranpur, District Katihar, Bihar. Petitioners Versus 1. [ENTITY] S/o Sh. Ram Khilwan Chaudhary R/o 116, First Floor, Neelam Vihar, Kaushambi, Ghaziabad, UP Also at: HDFC Bank Branch, Ansal Plaza, Vaishali, UP Owner 2. ICICI Lombard General Insurance Company Ltd. C/o 414, Veer Savarkar Marg, Near Sidhi Vinayak Temple, Prabha Devi, Mumbai -400025 Insurance Company [CASE NUMBER] [ENTITY] & Ors. Vs. [ENTITY] & Ors. 1/25 3. [ENTITY] S/o Sh. Umesh Prasad, R/o House of Kali charan, Bhowapur-II, Kaushambi, Ghaziabad, UP Also at : Krishna Prints, Bhowapur-II, Seemant Vihar, Kaushambi, Ghaziabad, UP Driver Respondents Date of Institution : 15.07.2013 Date of Arguments : 18.05.2016 Date of Judgment : 16.10.2018 JUDGMENT:
Vide this judgment I shall dispose off this petition filed by petitioners against the respondents. The facts of the case are as follows:
1. Facts: Petitioners have alleged that on 27.3.2012, at about 03.30 pm, deceased [ENTITY] and his wife Smt. [ENTITY] were going on foot towards Bhowpur, Ghaziabad, UP when suddenly a vehicle bearing No. DL-7S-BH-3258 being driven by its driver in rash and negligent manner hit against deceased and caused him fatal injuries. It is further stated that deceased was removed to Meenakshi Hospital, Kaushambi, UP, but was referred to Dr. Hedgewar Hospital and succumbed to his injuries during treatment. Postmortem was conducted on his dead body in hospital. Police lodged FIR No. 509/13 [CASE NUMBER] [ENTITY] & Ors. Vs. [ENTITY] & Ors. 2/25 u/[SECTION] [ACT] with PS Indirapuram, Distt. Ghaziabad, UP against the driver and driver was arrested and charge-sheeted. Petitioners have filed this petition for a compensation of Rs.22 Lacs with interest @ 18% per annum.
2. Written Statement: Respondents No. 1 & 3 i.e. Driver and Owner have filed their separate WS thereby stating that the offending vehicle has been falsely implicated to this case and claim is liable to be dismissed. It is further stated that the offending vehicle was insured with the Insurance Company and Insurance Company is liable to pay this compensation, if any, otherwise this claim is liable to be dismissed. Respondents have denied all the allegations of the petitioners and has prayed that this claim is liable to be dismissed.
2.1. Respondent No. 2 i.e. Insurance Company has filed its WS thereby admitting that the offending vehicle was insured with the Respondent, but it has denied all the allegations of the petitioners and has prayed that this petition is liable to be dismissed. It is further stated that this court has no territorial jurisdiction to entertain this petition and petition is liable to be dismissed. Respondent has denied all the allegations of the petitioners and has prayed that this petition is liable to be dismissed.
3. ISSUES - From the pleading of the parties following issues are framed as under:
1. Whether the deceased Sh. [ENTITY] suffered fatal injuries in the accident occurred on 27/3/2012 due to rash [CASE NUMBER] [ENTITY] & Ors. Vs. [ENTITY] & Ors. 3/25 and negligent driving of vehicle no. DL-7SBH-3258 being driven by respondent No. 1 (should be -3) OPP
2. Whether the petitioners are entitled for any compensation, if so, to what amount and from whom? OPP
3. Relief.
4. PETITIONER'S EVIDENCE: To prove the case, petitioners have examined PW1 [ENTITY] who is the wife of the deceased and is a witness of dependency of deceased as well as eye witness to this accident. She has deposed that she was with the deceased at the time of accident and witnessed this accident by the Respondent No. 3 while driving in rash and negligent manner. She has proved that deceased was working and was earning Rs. 10,500/- per month. It is further proved that postmortem was conducted on the dead body of deceased after his death. It is further proved that deceased has left behind all the petitioners as his LR's to whom he was maintaining. She has relied upon the documents i.e. Ex.PW1/1 to Ex.PW1/5 and Mark A & Mark B.
4.1. During cross examination, she has admitted that she was with the deceased at the time of this accident and they were going towards Dabur Chowk when this accident took place. It is further deposed that she removed her husband to Meenakshi Hospital by a tempo and he was treated there, but was referred to Dr. Hedgewer Hospital. It is further deposed that her husband was employed in a company with her son at the time of his death. Her son [ENTITY] is employed and two daughters are already married. It is further deposed that she was residing in a rented accommodation at the time of accident, but now [CASE NUMBER] [ENTITY] & Ors. Vs. [ENTITY] & Ors. 4/25 has vacated it. She was not aware about the particulars of the offending vehicle.
4.2. PW2 [ENTITY] is his son of the deceased. He has deposed about the mode and manner of this accident as deposed by PW1, but he was not an eye witness to this accident and came to know about this accident later on. He has admitted that they have never resided within the territory of Delhi. It is further deposed that he came to know about the offending vehicle at PS. His brother [ENTITY] was aged about 17 years and [ENTITY] was aged about 14 years at the time of accident.
4.3. PW3 [ENTITY] is Asstt. Manager of HR Department of M/s. Adroit Financial Services Ltd. He has proved the salary certificate of the deceased for the month of March, 2013 who was working with M/s Adroit Financial Services Pvt. Ltd. as Peon. Receipt is Ex.PW3/1. He has produced the attendance register of the deceased which is Ex.PW3/2. The deceased was peon and was drawing a salary of Rs. 8,500/- pm.
5. Respondent's Evidence: Respondents have not examined any RE, but Ld. Counsel for the Respondent has produced a notice u/[SECTION] [ACT] served upon the driver and owner to produce the original documents, but they failed to produce the same despite service of notice Ex.R2/A which was served vide Ex.R2/B. The investigation report is Ex.R2/C and Ex.R2/D. RE was closed vide order dated 15/11/2017.
[CASE NUMBER] [ENTITY] & Ors. Vs. [ENTITY] & Ors. 5/25
6. I have heard the arguments and perused the record. Though no issue on the point of territorial jurisdiction has been framed by the court, yet I am taking up this issue as this issue has been highlighted during the arguments before this court. Even there is an objection of Respondent No. 2 to this effect. Ld. Counsel for the insurance company has argued that this accident took place in UP and even the petitioners have been residing in UP/ Bihar and this fact has been duly admitted by the PW2 during his cross examination, due to this case is liable to be dismissed for the want of territorial jurisdiction. On the other hand, Ld Counsel for the petitioners have submitted that this court has territorial jurisdiction to entertain this case as this case was initially instituted before the Court of District East, but it was later on transferred to this court on the basis of an administrative order and this matter was also taken before the High Court, but it was not transferred back to District East, due to this court has territorial jurisdiction to entertain this claim.
6.1. I have gone through the record. Before deciding the argument of the respondents, it is necessary to go through the legal proposition to the effect of territorial jurisdiction to entertain a petition by this court. [SECTION] of [ACT] has prescribed the parameters of invoking jurisdiction of the Tribunal. This section is only determining section to this effect being a special law. [SECTION] of [ACT] is as under:
[SECTION]. Application for Compensation.- (1) xxxxxxxxxx [(2) Every application under sub-section(1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred, or to [CASE NUMBER] [ENTITY] & Ors. Vs. [ENTITY] & Ors. 6/25 the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed:
Provided that where no claim for compensation under [SECTION] is made is such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant.] [3xxxx] [(4) xxxxxxxxx]
7. As per this section, it is clear that the places where any accident occurred or the claimant resides or carries on his / her business, or the defendant / respondent resides shall determine the territorial jurisdiction of the tribunal to entertain an application / petition of claim arising out of an accident. The claimants are well aware about this legal proposition and they have invoked the jurisdiction of this tribunal on the basis of this section only. Petitioners have alleged that the address of Respondent No 1 [ENTITY] is pertaining to the jurisdiction of District East which has been changed subsequently to Kaushambi, UP. Ld. Counsel for the claimants has vehemently argued that this case was filed before District Court, East Delhi, but it was assigned to the court of District Shahdara by administrative order, due to this court has jurisdiction to entertain this case. Even similar argument was led before the Hon'ble High Court of Delhi in a transfer petition vide [CASE NUMBER] titled [ENTITY] v. Sunil Kumar Chowdhary which was disposed off vide order dated 06/04/18. This petition was followed by another application for clarification but again it [CASE NUMBER] [ENTITY] & Ors. Vs. [ENTITY] & Ors. 7/25 was dismissed on 09/10/2018. The Hon'ble High Court has observed as under:
"Since the claim petition was filed in East District, Karkardooma Court, it being later transferred on administrative instructions to the Tribunal of Shahdara District, Karkardooma Court does not mean the Tribunal does not have requisite jurisdiction to justify prayer for withdrawal of the case from the Shahdara District which would be duty bound to proceed ahead and adjudicate upon the case.
The petition and the application filed therewith are disposed off with these observations."
The above said observation of the Hon'ble High Court has proved that the petitioner made to believe that the case was filed before the Tribunal of District East, Delhi, but was assigned to the Tribunal of District Shahdara by an administrative order, however this argument of petitioners has no substance and is also against the record. This case was filed on 15/07/2013, whereas 11 Districts had already formed in the year 2012 itself. The perusal of the petition shows that it was filed before the filing section on 12/07/2013 and assigned to the Ld. Predecessor of this court. This petition was filed with the jurisdiction of PS Anand Vihar, which was admittedly falling within the jurisdiction of Shahdara, Delhi itself. Though District East was mentioned in the memo of parties and Index, yet it was of no use as the PS Anand Vihar was determining factor to assigning territorial jurisdiction of the court to assign the petition. In fact, petitioners themselves created a confusion about the territorial jurisdiction of the [CASE NUMBER] [ENTITY] & Ors. Vs. [ENTITY] & Ors. 8/25 court thereby mentioning two contradictory facts, firstly mentioning of District East on the top of the Index and memo of parties, secondly by mentioning PS Anand Vihar pertaining to District Shahdara. In fact, this case was was assigned to Shahdara District by the fault of the petitioners only and not by an inadvertent mistake of the filing section. Even it is assumed for the sake of arguments that it was administrative fault of the filing section to assign this case to District Shahdara, then the petitioners were supposed to be get it re-transferred to District East for further trial, however it was not done by them till trial was not over. As such, the objection of the respondents about territorial jurisdiction has substance as none of the parties are residing or carrying of their business within the territorial jurisdiction of this court.
8. However, the respondent No.1 [ENTITY] is resident of Pandav Nagar, East Delhi as per the RC of the vehicle. This RC is yet to be transferred to other address of the respondent as mentioned in the petition and this address has proved that East District Court has territorial jurisdiction to entertaining this case in view of [SECTION] of [ACT]. Trial of this case has already been concluded and it would be injustice to the petitioners if this petition is returned at this stage after a trial of more than 5 years. Ld. Counsel for the petitioners has relied upon a judgment titled Dr. [PRECEDENT] to prove that a judgment cannot be reversed on the ground of territorial jurisdiction unless there is failure of justice, but this judgment is not applicable on the facts of this case, as in that case, the decree had already been passed and objection of jurisdiction was taken at [CASE NUMBER] [ENTITY] & Ors. Vs. [ENTITY] & Ors. 9/25 appellant stage, whereas in this case provisions of [ACT] are not applicable and case is to be decided in terms of [SECTION], [SECTION] and [SECTION] of [ACT]. This aspect of territorial jurisdiction is this case is of not much importance as even if this case is returned for the want of territorial jurisdiction, then also it would be filed before the Court of District East situated within the same premises. As such, in view of peculiar facts and circumstances of the case, I found the objection of the respondents regarding territorial jurisdiction of no use and this court has territorial jurisdiction to entertain this case.
9. Now I proceed to decide my findings on merit of the case. First issue in petition is pertaining to rash and negligent driving of the offending vehicle and my findings on issue No. 1 in petition are as under:
Issue No. 1: Admittedly, the onus to prove this rash and negligent driving of the offending vehicle by its driver was on the petitioners who have brought the law into motion; however, this fact is not to be proved beyond doubt or in the similar manner as a fact is to be proved in a civil case. Rather it has to be proved on the touchstone of preponderance of probability and holistic view is to be taken while dealing with the Claim Petition based upon negligence. In fact, a Claims Tribunal is enjoined to hold an inquiry to determine compensation which must appear to it to be just. Strict rules of evidence are not applicable in an inquiry conducted by the Claims Tribunal as observed in [PRECEDENT] decided on 02.07.2012 and [CASE NUMBER] [ENTITY] & Ors. Vs. [ENTITY] & Ors. 10/25 [PRECEDENT]. It is further held in [PRECEDENT] that tribunal should not succumb to niceties, technicalities and mystic maybes. The court is bound to take broad view of the whole matter. As such, the case of the petitioners has to be decided in view of the above said legal proposition.
10. In fact, PW1 [ENTITY] is the wife as well as eye witness of this accident and has duly proved that on 27.3.2013 at about 3.30 pm, she alongwith her deceased husband was going on foot towards Bhowpur, UP when the offending vehicle bearing No. DL-7S-BH-3258 being driven by the Respondent No. 3 in rash and negligent manner caused this accident by striking against the the deceased from behind. It is further proved that deceased was removed by her to Meenakshi Hospital, Kaushambi, but was referred to Dr. Hedgewer Hospital where he was treated but declared dead. It is further proved that postmortem was conducted on the dead body of the deceased. As such, MLC of the deceased is on record and has proved that he sustained the accidental injuries. Thereafter, deceased received treatment his post- mortem report has proved the cause of death which was anti-mortem injuries which were possible during this accident. Police was informed after the death of the deceased and Local Police of Anand Vihar transferred the postmortem documents of the deceased to the local police where criminal case was registered i.e. PS Indira Puram. As such, there is no room of doubt that the death of the deceased [ENTITY] was result of this accident and PW1 witnessed it.
[CASE NUMBER] [ENTITY] & Ors. Vs. [ENTITY] & Ors. 11/25
11. Besides it, PW1 also lodged this FIR and FIR has corroborated the mode and manner of accident including number of offending vehicle which caused this accident. PW1 is also an eye witness of this accident in the charge sheet filed by police against Respondent no. 3. Respondent No.3 was driving the offending vehicle at the time of accident and ran away with the vehicle after causing this accident and police seized the vehicle during investigation and respondent No. 3 was also arrested and released on bail. Respondent No. 3 has also not disputed this fact that he was arrested and charge sheeted for causing this accident. Rather he has not disputed his presence at the spot of accident during this accident. Police prepared site plan of the spot of accident which has proved the actual spot of accident. The mechanical inspection report of the offending vehicle has proved the corresponding damage to the vehicle and its front mudguard was found damaged as deposed by the PW1 that offending vehicle hit against the deceased from behind. The investigation proceedings have also proved that the driver was not holding a valid DL to drive the vehicle and some negligence by such driver may be expected. As such, there is no contradiction in the testimony of eye witness about the mode and manner of this accident and has duly proved that this accident had taken place by the rash and negligent driving of the offending vehicle by the respondent No. 3.
12. Further, PW2 has also corroborated the version of PW1 about this accident. The testimonies of PW1 and PW2 have duly proved that the Respondent No.1 was driving the offending vehicle in rash and negligent manner and caused this accident. As such, all the facts have [CASE NUMBER] [ENTITY] & Ors. Vs. [ENTITY] & Ors. 12/25 duly proved that this accident was caused by rash and negligent driving of Respondent No.3 and petitioners have discharged the onus to prove this Issue No. 1, accordingly, this issue in DAR is decided in favour of petitioners and against the respondents.
13. ISSUE No. 2 - The onus to prove this Issue No. 2 was fixed upon the Petitioners. Since the Petitioners have proved that the Respondent No. 1 caused this accident by his rash and negligent driving, accordingly petitioners are entitled for compensation. However, it is to be decided as to what compensation is to be paid and by whom.
13.1. Age of deceased: To determine the compensation in a fatal case, Petitioners are required to prove the age and income of the deceased as well as number of dependents to make necessary deductions towards the personal expenses of the deceased. The age of deceased is necessary to apply the multiplier. Petitioners have disclosed the age of the deceased as 48 years. As per ESI Card of the deceased, his date of birth was on 01.07.1965, whereas this accident took place on 27.03.2013. As such, the age of deceased comes to 48 years at the time of accident which is taken accordingly.
13.2. Multiplier applicable in this case to decide Compensation - After ascertaining the age of the deceased, an appropriate multiplier has to be determined. The judgment of case titled [PRECEDENT] is relevant to consider this multiplier. Para 21 of the judgment has laid down the multiplier as per age as under:
[CASE NUMBER] [ENTITY] & Ors. Vs. [ENTITY] & Ors. 13/25 MULTIPLIER AGE GROUP OF DECEASED M-18 Age groups between 15 to 20 and 21 to 25 years) M-17 Age groups between 26 to 30 years, M-16 Age groups between 31 to 35 years, M-15 Age groups between 36 to 40 years, M-14 Age groups between 41 to 45 years, M-13 Age groups between 46 to 50 years, M-11 Age groups between 51 to 55 years, M-9 Age groups between 56 to 60 years, M-7 Age groups between 61 to 65 years M-5 Age groups between 66 to 70 years.
In view of the above said judgment, a multiplier of 13 has to be applied against 48 years of age of the deceased to determine this compensation.
13.3. Determination of Income of deceased / Injured: After deciding the age and multiplier, the income of the deceased has to be determined. The deceased was a working as Peon with M/s. Adroit Financial Services Pvt. Ltd and stated to be drawing a salary of Rs.
8,500/- per month and PW3 [ENTITY] has proved salary slip as Ex.PW3/1 alongwith attendance register as Ex.PW3/2. PW3 has categorically proved that the deceased was working as Peon with the company for the last 7-8 years and there is no reason to disbelieve the testimony of PW3. As such, as per salary slip, the income of the deceased, on the day of accident, was Rs. 7700/- after deduction of transport allowance which was personal expenses and is not be [CASE NUMBER] [ENTITY] & Ors. Vs. [ENTITY] & Ors. 14/25 considered as part of salary. Annual income of the deceased comes to Rs.92,400/- per annum.
13.4. Necessary deductions out of earnings of the deceased towards personal expenses: After choosing the age, multiplier and income of the deceased, necessary deductions have to be made out of the income of the deceased towards his personal expenses. The Hon'ble Supreme Court of India in case titled [PRECEDENT], in Para 30, has laid down the necessary deductions towards personal living and expenses of deceased as under:
Number of dependents Deductions out of earning of the deceased.
Half / Where dependent is 1 1/3rd Where the number of dependent family members is 2 to 3 1/4th Where the number of dependent family members is 4 to 6, 1/5th Where the number of dependent family members exceeds 6 (six).
13.5. In view of the above said judgment, Petitioner No. 1 Smt. [ENTITY] is the wife of deceased and Petitioners No. 3 to 4 were minor children who were financially dependent upon him. Petitioner No.2 is major and was earning and other daughter was married and all of them were not financially dependent upon deceased. Even parents of the deceased were predeceased. As such, there were three dependents of the deceased and 1/3 income of the deceased has to be deducted towards his personal expenses i.e. Rs. 30,800/-, out of, Rs.92,400/-
per annum.
[CASE NUMBER] [ENTITY] & Ors. Vs. [ENTITY] & Ors. 15/25 13.6. Determination of future earnings: Besides it, a future income of the deceased is also to be considered in view of the latest judgment of the Hon'ble Apex Court titled [PRECEDENT] decided on 31.10.2017 in which it is observed as under:-
(iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.
(iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.
(viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years.
In fact, in view of the above said judgment, 25% amount is to be considered towards future income of the deceased who was aged about 48 years.
14. Calculation of Loss of Dependency / Estate of Petitioners:
I have already observed that the deceased was earning Rs.61,600/-
[CASE NUMBER] [ENTITY] & Ors. Vs. [ENTITY] & Ors. 16/25 p.a. after 1/3 deductions. Thereafter, this annual income has to be multiplied by multiplier of 13 as per [PRECEDENT] (supra). Rs. 61,600 x 13 = Rs. 8,00,800/-. The 25% future income of the deceased has to be added in terms of National Insurance Co. v. [ENTITY] (Supra) i.e. Rs. 2,00,200/-. As such, loss of income of dependency / estate comes to Rs. 8,00,800 + Rs. 2,00,200 = Rs. 10,01,000/-.
14.1. Loss of consortium- The claimants are wife and children of deceased. Petitioner No. 1 is wife of the deceased and shall be entitled for compensation of Rs. 40,000/- under this head of loss of consortium.
14.2. Loss of Estate- In view of [ENTITY] case (supra), petitioners are also entitled for Rs.15,000/- towards loss of estate.
14.3. Funeral Charges- Petitioners are also entitled for Rs 15,000/- towards funeral expenses in terms of [ENTITY] case (supra).
14.4. Medical Expenses: It is not disputed that petitioners are also entitled for medical treatment expenses of the deceased prior to his death. However, in this case, Petitioners have not proved any medical bill due to they are not entitled for any reimbursement of bills.
15. As such, petitioners are entitled for the compensation as under:
1. Loss of dependency / Contribution to family: Rs. 10,01,000/-
2. Loss of Estate: Rs. 15,000/-
3. Loss of consortium : Rs. 40,000/-
[CASE NUMBER] [ENTITY] & Ors. Vs. [ENTITY] & Ors. 17/25
4. Funeral Charges Rs. 15,000/-
5. Medical Bills: NIL Total = Rs. 10,71,000/-
16. Liability: The offending vehicle was insured with insurance company. Respondents No. 1 & 3 are owner and driver of the offending vehicle and have no defense. Respondent No. 2 is Insurance Company and has raised a statutory defense that the Respondent No. 3 was driving the offending vehicle with fake DL which amounts to violation of the terms of insurance policy. Admittedly, the offending vehicle was insured and insurance policy is Mark B and is not disputed. The driver's clause of the policy has proved that it was essential that the driver must have a valid DL to drive the vehicle to pay compensation to third party by Insurance Company. However, the investigation report of the police which is Ex.PW1/1 has also proved that the DL of the driver/ Respondent no.3 was fake. Even the verification report of the investigator is also to part of record to this effect. Though the insurance company has proved this investigation report and notice u/[SECTION] [ACT] through counsel on without oath statement, which is not an evidence, yet it has corroborated the findings of the IO about the fakeness of the DL of Respondent No. 3. Respondent No.3 was well aware that his DL was fake and even filed his WS but did not prefer to file DL. He was supposed to prove it, but has preferred not to prove it and has proved that he had no DL to drive the offending vehicle.
[CASE NUMBER] [ENTITY] & Ors. Vs. [ENTITY] & Ors. 18/25 16.1. Ld. Counsel for the respondents have relied upon United India Insurance Co. Ltd. v. [ENTITY] & Ors MAC App. 188/2013 to prove that merely fake DL of driver is not a ground to grant recovery rights to the insurance company unless it is proved that driver contributed to this accident on account of this fake DL, due to Insurance Company is not liable for recovery rights. On the other hand, Ld. Counsel for the insurance company has argued that insurance company has already proved a notice u/[SECTION] [ACT] duly served upon the driver and owner to produce the DL of the driver and even report of the investigator was also proved due to insurance company is entitled for recovery rights.
16.2. I have gone through the record. Insurance Company has taken this defense in its WS that the driver of the offending vehicle was not holding a valid DL and thereafter a notice was also served upon the owner and driver to produce it, however, Respondents No. 1 and 3 did not prefer to deny this defence of the Insurance Company. Though the evidence of the Ld. Counsel on behalf of the Insurance Company is not liable to be considered, yet respondents No. 1 & 3 were supposed to prove that Respondent No.3 was holding a valid DL to drive vehicle, especially IO had concluded that the driver was holding a fake DL. The owner was supposed to lead RE to prove that he checked the DL of the driver before handing over the vehicle to him, but no evidence has been led on behalf of either Respondents to prove it. As such, right of recovery of claim amount have to be granted against a person having a fake DL to drive as held in [PRECEDENT], wherein similar facts were [CASE NUMBER] [ENTITY] & Ors. Vs. [ENTITY] & Ors. 19/25 existing and DL of the driver was found fake. This judgment is applicable on the facts more than the judgment relied upon by the respondents titled [ENTITY] & Ors(supra). As such, it was a case of fundamental breach of the insurance policy and insurance company is liable to pay this compensation with rights of recovery from the respondents No. 1 & 3, jointly and severally.
17. Keeping in view of the facts and circumstances, this petition is allowed. Petitioners are entitled for compensation of Rs. 10,71,000/- from the Respondent No. 2 with interest @ 9% p.a. from the date of filing of the petition till its realization, with rights of recovery from the Respondents No. 1 and 3 jointly and severally. The interim compensation, if any, shall be adjusted against this award amount along with the waiver of interest, if any, as directed by the court during the pendency of this case. Respondent Nos. 2 is directed to give notice regarding deposit of the said amount to the petitioners and their counsel. As such, Petitioners have also successfully discharged the onus to prove the Issue No. 2 and are entitled for the claim amount as above. The following award is passed as under:
AWARD This petition is allowed. Respondent No. 2 is directed to pay a compensation of Rs. 10,71,000 /- with interest @ 9% p.a. from the date of filing of this petition till its realization to the Petitioners, with rights of recovery from the Respondents No. 1 & 3, jointly and severally, and to deposit the award amount within one month from the date of this award. However, this award amount shall be subjected to adjustment [CASE NUMBER] [ENTITY] & Ors. Vs. [ENTITY] & Ors. 20/25 of the interim award, if any and also the waiver of interest, if any as directed by this court during the pendency of this claim. Award amount be released to the claimants after deposit by Respondent No. 2 in terms of disbursement.
18. Apportionment of Award amount: The award amount has to be distributed amongst the claimants. Petitioner No. 1 Smt. [ENTITY] is the wife of deceased and shall be entitled for 70% i.e. Rs. 7,49,700/- of entire award amount with corresponding interest. Petitioners No. 2 to 4 are children of the deceased and shall be entitled for 10% (each) of the award amount i.e. Rs.1,07,100/- (each). The share amounts shall be with corresponding interest.
19. Disbursal of Award amount: Now the disbursement of award amount has to be considered. The procedure of disbursement of the award amount has been provided in Clause-29 of Modified Claims Tribunal Agreed Procedure formulated by the Hon'ble High Court of Delhi in [PRECEDENT] and [PRECEDENT] and the disbursement of the award amount is as under.
19.1. Petitioner No. 1 Smt. [ENTITY] is the mother of the deceased and shall be entitled for an amount of Rs.1,49,700/- out of Rs. 7,49,700/- with corresponding interest instantly to be credited in her saving bank account nearby to her residence. The interim amount, if any already paid shall be adjusted towards the amount payable instantly. Remaining amount of Rs. 6,00,000/- shall be fixed into [CASE NUMBER] [ENTITY] & Ors. Vs. [ENTITY] & Ors. 21/25 automatically renewable FDRs till the period prescribed by this Court w.e.f. December, 2018 as under:
1. 6 Months Rs.50000/-
2. 1 Year Rs.50000/-
3. 1 Year Rs.50000/-
4. 2 Year Rs.50000/-
5. 2 Year Rs.50000/-
6. 3 Year Rs.50000/-
7. 3 Year Rs.50000/-
8. 4 Year Rs.50000/-
9. 4 Year Rs.50000/-
10. 5 Year Rs.50000/-
11. 5 Months Rs.50000/-
12. 6 Year Rs.50000/-
Total = Rs.6,00,000/-
19.2. Petitioners No. 3 & 4 namely Master [ENTITY] and [ENTITY] are minor children of the deceased and their share amount shall be fixed by the way of FDRs alongwith corresponding interest till attainment of majority. However, interest on the FDRs of the minor shall be calculated on monthly basis and shall be released to Petitioner No. 1 and shall be utilized for the benefit and welfare of minor children.
19.3. Petitioner No. 2 [ENTITY] is the major son of the deceased and shall be entitled for share amount with corresponding interest instantly.
[CASE NUMBER] [ENTITY] & Ors. Vs. [ENTITY] & Ors. 22/25 19.4. The interest against the above said FDRs shall be calculated on monthly basis and shall be credited in the accounts of the claimant/s on monthly basis.
19.5. FDRs amount shall be paid on maturity basis in the same accounts of the petitioners against which interest amount is being credited through ECS except the FDRs of minor which shall not be released without the permission of the Court.
19.6. The Manager, UCO Bank or of any other bank as desired by the claimants shall open the saving bank account of the claimants or transfer to his /her / their existing accounts, if any, nearby to his/her/ their residence after taking relevant documents.
19.7. The withdrawal from the aforesaid bank account of the petitioners / claimants shall be after due verification by the bank and the bank shall issue photo identity card to the petitioners to facilitate the identity.
19.8. The original FDRs shall be retained by the bank in safe custody. However, statement containing FDR numbers, FDRs amount, date of maturity and maturity amount shall be furnished to claimant.
19.9. No loan, advance or withdrawal / pre-mature discharge shall be allowed on the above-said FDRs without the permission of this Tribunal. The bank shall not open any joint account of the petitioners.
[CASE NUMBER] [ENTITY] & Ors. Vs. [ENTITY] & Ors. 23/25 19.10. No cheque book or debit card shall be issued to the claimants/ petitioners without the permission of this Tribunal. In case the debit card and / or cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount. The bank shall freeze the accounts of the claimants so that no debit card be issued in respect of the account of the claimant from any other branch of the bank.
19.11. That the bank shall make an endorsement on the passbook of the claimant to this effect, that no cheque book and / or debit card have been issued and shall not be issued without the permission of the Court and claimant/s shall produce the passbook with the necessary endorsement before the court on the next date fixed for compliance.
19.12. The bank shall prepare FDRs in its own name on the receipt of the award amount from the Respondent i.e. Insurance Company till the date Petitioners approach for the release of the amount and thereafter amount along with interest shall be released to the petitioner per award of this Tribunal.
19.13. On the request of the Petitioners, the bank shall transfer the saving account to any other bank of UCO bank or any other bank according to the convenience of the petitioner. The claimants can operate the saving bank account from the nearest branch of UCO Bank and on the request of the claimants, the bank shall provide the said facility.
[CASE NUMBER] [ENTITY] & Ors. Vs. [ENTITY] & Ors. 24/25 19.14. The Petitioner/s shall furnish all the relevant documents for opening of the saving bank account and FDR to Nodal Officer, UCO Bank, KKD, Delhi.
19.15. Petitioner (s) shall file a compliance report on next date of hearing about opening of saving bank account with the nationalized bank nearby to their/his/her residence and to get endorsed from the bank that no cheque-book, debit card or any other facility like ECS/ NFTT etc. has been provided against this bank account.
20. A copy of this judgment be given free of cost to the parties concerned. Copy of Form V duly filled shall be treated as part of this award. File be consigned to RR and a separated file for compliance be maintained for 22.11.2018. Digitally signed by [ENTITY] Date:
KUMAR 2018.10.16 16:43:10 +0530 Announced in open court ([ENTITY]) On 16.10.2018 PO-MACT/SHAHDARA KARKARDOOMA COURTS, DELHI [CASE NUMBER] [ENTITY] & Ors. Vs. [ENTITY] & Ors. 25/25