LR' of [ENTITY] vs [ENTITY] Page 1 of 22 IN THE COURT OF SH. [ENTITY], PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNAL, NORTH WEST DISTRICT, ROHINI COURTS, DELHI New No. 5083216 UNIQUE ID No. : DLNW010016642015 1.Smt. [ENTITY] W/o Sh. Harish Asija (mother of deceased [ENTITY]) 2.Sh. [ENTITY] s/o Sh. Om Prakash (father of deceased [ENTITY]) Both R/o C5/17A, Lawrence Road, Keshav Puram, Onkar Nagar, Delhi35 Petitioner/claimant Vs. 1. Sh. [ENTITY] S/o Sh. Ved Lal Mandal R/o Village Tardhi Rupsha, PS Amarpur, Distt. Banka, Bihar Driver/R1 2. M/s [ENTITY] At 5224, Ajmeri Gate, G.B. Road, Delhi Owner/R2. 3. [ENTITY] At: 6/90, 2nd Floor, Padam Singh Road, Karol Bagh, Delhi5 Insurance co/R3 Respondents Other details DATE OF INSTITUTION : 25.08.2015 DATE OF RESERVING JUDGMENT : 27.11.2019 DATE OF PRONOUNCEMENT : 28.11.2019 LR' of [ENTITY] vs [ENTITY] Page 1 of22 LR' of [ENTITY] vs [ENTITY] Page 2 of 22 FORM - V 1. COMPLIANCE OF THE PROVISIONS OF THE MODIFIED CLAIMS TRIBUNAL AGREED PROCEDURE TO BE MENTIONED IN THE AWARD AS PER FORMAT REFERRED IN THE ORDER PASSED BY THE HON'BLE DELHI HIGH COURT IN [PRECEDENT]. VIDE ORDER DATED 07.12.2018. 1. Date of the accident 20.05.2015 2. Date of intimation of the accident by the 25.08.2015 investigating officer to the Claims Tribunal 3. Date of intimation of the accident by the 25.08.2015 investigating officer to the insurance company. 4. Date of filing of Report under [SECTION] Not mentioned in the [ACT] before the Metropolitan Magistrate [ACT] 5. Date of filing of Detailed Accident Information 25.08.2015 Report ([ACT]) by the investigating Officer before Claims Tribunal 6. Date of Service of [ACT] on the Insurance 25.08.2015 Company 7. Date of service of [ACT] on the claimant (s). 25.08.2015 8. Whether [ACT] was complete in all respects? Yes 9. If not, whether deficiencies in the [ACT] removed N/A later on? 10. Whether the police has verified the documents Yes. filed with [ACT]? 11. Whether there was any delay or deficiency on N/A the part of the Investigating Officer? If so, whether any action/direction warranted? 12. Date of appointment of the Designated Officer 25.08.2015 by the insurance Company. 13. Name, address and contact number of the Sh. [ENTITY], Designated Officer of the Insurance Company. Ld Advocate 14. Whether the designated Officer of the Insurance No Company submitted his report within 30 days of the [ACT]? (Clause 22) 15. Whether the insurance company admitted the No liability? If so, whether the Designated Officer of LR' of [ENTITY] vs [ENTITY] Page 2 of22 LR' of [ENTITY] vs [ENTITY] Page 3 of 22 the insurance company fairly computed the compensation in accordance with law. 16. Whether there was any delay or deficiency on N/A the part 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 Legal offer not filed. of the Insurance Company . 18. Date of the Award 28.11.2019 19. Whether the award was passed with the consent No of the parties? 20. Whether the claimant(s) were directed to open Yes saving bank account(s) near their place of residence? 21. Date of order by which claimant(s) were 18.09.2019 directed to open saving bank account (s) near his place of residence and produce PAN Card and Aadhar Card and the direction to the bank not issue any cheque book/debit card to the claimant(s) and make an endorsement to this effect on the passbook(s). 22. Date on which the claimant (s) produced the 27.09.2018 passbook of their saving bank account near the place of their residence along with the endorsement, PAN Card and Aadhar Card? 23. Permanent Residential Address of the As mentioned above Claimant(s) 24. Details of saving bank account(s) of the Petitioner no.1 Smt. claimant(s) and the address of the bank with [ENTITY] savings bank IFSC Code a/c No. 1513000102419313 & petitioner no. 2 Sh. [ENTITY] a/c no. 1513000102420629 with PNB, Tri Nagar branch, Delhi IFSC :PUNB0151300 25. Whether the claimant(s) saving bank account(s) Yes is near his place of residence? 26. Whether the claimant(s) were examined at the Yes time of passing of the award to ascertain his/their financial condition. LR' of [ENTITY] vs [ENTITY] Page 3 of22 LR' of [ENTITY] vs [ENTITY] Page 4 of 22 27. Account number/CIF No, MICR number, IFSC 86143654123, Code, name and branch of the bank of the 110002427, Claims Tribunal in which the award amount is to SBIN0010323, SBI, be deposited/transferred. (in terms of order Rohini Courts, Delhi dated 18.01.2018 of Hon'ble Delhi High Court in [PRECEDENT]. JUDGMENT
1. The Detailed Accident Report (hereinafter referred to as [ACT]) was filed in this case on 25.08.2015 with reference to FIR No.277/15 U/[SECTION] [ACT] PS Aman Vihar and subsequent charge sheet u/[SECTION] [ACT] which was filed in respect of death of [ENTITY]. The ld. Predecessor of this court vide order dated 25.08.2015 treated the same as petition u/[SECTION] of the [ACT] referred to as [ACT]).
1.1 The record would show that petitioners have also filed a petition u/[SECTION] of [ACT].
2. The facts mentioned in the [ACT]/file are that on 20.05.2015 at about 6:00 pm, Sh. [ENTITY] (hereinafter referred to as 'deceased') was going from his office Pinki Tour & Travels at C3, first floor, Wazirpur Industrial Area, Delhi to his home at C5/17A, Lawrence road, Keshav Puram, Onkar Nagar, Delhi35 by his scooter no. DL11SC0765. When he reached in front of Kailash Travels, Bartan Market, Wazirpur Industrial area, Delhi, then suddenly a Dumper/truck bearing registration no. DL1GB6588 (hereinafter referred to as "offending vehicle") which was being driven by its driver/R1 at a high speed, in a rash and negligent manner came from the red light, Ashok Vihar, Delhi and hit the deceased from back side. Due to said impact, the deceased suffered grievous injuries and became unconscious at the spot. One Sh. [ENTITY] and his friend [ENTITY] who were standing there, removed the deceased to Fortis hospital, Shalimar Bagh, Delhi. It was mentioned in the petition that the deceased expired on the next day of the accident and his postmortem was conducted by the doctors of BJRM hospital, Delhi.
LR' of [ENTITY] vs [ENTITY] Page 4 of22 2.1 The postmortem on the dead body of the deceased was
conducted by doctors of BJRM Hospital, Delhi vide [CASE NUMBER] wherein the cause of death was opined as due to hemorrhage as a result of polytrauma, consistent with the history provided (allegedly the deceased was driving a scooter when he was hit from behind by a truckcement roller on 20.05.2015. He was shifted to Fortis hospital, Shalimar Bagh for treatment where he expired on 21.05.2015 at 5:50 pm while under treatment).
3. R1/[ENTITY] who was the driver/R1 and Metro Concrete/Owner/R2 of the offending vehicle have not filed their written statement.
3.1 The record would show that vide order dated 12.12.2017 R1 and R2 had moved one application for permission to file WS but the same was rejected. It was clarified on 12.12.2017 that WS of R1 and R2 had not been taken on record and it could not be read accordingly.
4. R3/ [ENTITY] has filed reply/written statement wherein it has admitted that offending vehicle was insured with it vide policy bearing no. 360500/31/14/6300003639 in the name of R2 from 24.10.2014 to 23.10.2015 i.e. covering the date of accident 20.05.2015. It was stated that IO had not filed any document of fitness of the vehicle on the date of accident and that the owner is liable for action u/[SECTION] of the [ACT]. It was stated that the insurance co. was not liable to pay any amount of compensation as the offending vehicle was not having any fitness on the date of the accident. It was stated that the deceased sustained injuries due to sole negligent act on his part and not because of any wrongful act or negligence on the part of the driver of the truck.
5. From the pleadings of the parties, the following issues were framed by this court vide order dated 08.06.2017: (1) Whether on 20.05.2015 at about 6:00 pm, Kailash Travels Bartan Market, WPIA, Wazirpur, Delhi, one Mixer Truck bearing registration no. DL1GB6588 which was being driven rashly and negligently by [ENTITY]/R1 hit the scooter bearing registration LR' of [ENTITY] vs [ENTITY] Page 5 of22 no. DL11SC0765 and caused the death of Sh. [ENTITY]? OPP (2). Whether petitioners are entitled to compensation, if so, to what amount and from whom?OPP (3). Relief.
6. Petitioners have examined Sh. [ENTITY] (eye witness) as PW1, Smt. [ENTITY] (mother of deceased) as PW2 and Sh. [ENTITY], Accountant of M/s Pinki Tour & Travels (Regd) as PW3 in support of their case.
6.1 The record would show that respondents have not examined any witness in support of their case.
7. I have heard the arguments addressed on behalf of petitioners and also on behalf of ld counsel for insurance co/R3. I have also perused the record including the written arguments filed by the insurance co/R3. Now, I proceed to discuss the issues in the succeeding paragraphs.
8. Issue wise findings are as under: The onus to prove this issue beyond preponderance of probabilities is upon the petitioners.
8.1 Petitioners/claimants have examined Sh. [ENTITY] as PW1. He has tendered his evidence by way of affidavit as Ex. PW1/A. He deposed that e was an eye witness of an accident which occurred on 20.05.2015 at about 6:00 pm. He deposed that on 20.05.2015 at about 6:00 pm the deceased [ENTITY] who was working in his office Pinki Tour and Travels, C3, First Floor, WPIA, Wazirpur, Delhi was going to his home by his scooter no. DL11SC0765. He deposed that all of a sudden the offending vehicle i.e. dumper/truck bearing no. DL1GB6588 which was coming from red light, Ashok Vihar, Delhi side being driven by R1 in a very rash and negligent manner and high speed hit the deceased from back side in front of Kailash Travels, Bartan Market, Wazirpur Industrial Area, Delhi. He deposed that he and his friend [ENTITY] were standing there, they rushed towards the offending LR' of [ENTITY] vs [ENTITY] Page 6 of22 vehicle, caught the driver/R1 and handed over R1 to the police. He deposed that they also removed the deceased to Fortis Hospital, Delhi. He deposed that the deceased had expired on the next day of the accident.
8.2 PW1 was cross examined by ld counsel for R1 and R2 wherein he inter alia deposed that he was standing at a distance of about 1015 steps from the spot at the time of accident and that the place of incident was near his office. He deposed that he was standing at the spot since about 10 minutes and had come from his office to bring the computer accessories. He deposed that he was not aware whether the deceased had left the office on that day of accident. He deposed that after the accident, driver of the offending vehicle did not stop the offending vehicle and volunteered that he along with his friend [ENTITY] caught hold of the driver of the offending vehicle. He deposed that the speed of the offending vehicle was about 4045 Kms per hour at the time of accident. He denied the suggestions he and his friend [ENTITY] were not present at the spot or that he and his friend [ENTITY] did not catch hold of the driver of the offending vehicle.
8.3 PW1 was also cross examined by ld counsel for insurance co/R3 wherein he deposed that FIR was lodged by him and his friend [ENTITY]. He denied the suggestion that FIR was not lodged on behalf of himself as well as for his friend [ENTITY].
8.4 The FIR No. 277/15 PS Ashok Vihar u/[SECTION] [ACT] was registered upon the statement of Sh. [ENTITY] i.e. PW1 of the present case. Nothing had appeared in the cross examination of PW1 to discredit his above said testimony which would show that the case accident had occurred due to rash and negligent driving of R1 while driving the offending vehicle leading to the death of deceased. The testimony of PW1 is reliable and trustworthy.
8.5 The postmortem on the dead body of the deceased was conducted by doctors of RJRM Hospital, Delhi vide [CASE NUMBER] wherein the cause of death was opined as due to hemorrhage as a result of LR' of [ENTITY] vs [ENTITY] Page 7 of22 polytrauma, consistent with the history provided (allegedly the deceased was driving a scooter when he was hit from behind by a truckcement roller on 20.05.2015. He was shifted to Fortis hospital, Shalimar Bagh for treatment where he expired on 21.05.2015 at 5:50 pm while under treatment).
8.6 A charge sheet u/[SECTION] [ACT] in the corresponding FIR No. 277/15 PS Ashok Vihar was also filed against R1. The said criminal case record including the FIR can also be relied upon to prove the negligence on the part of R1.
8.7 The issue no. 1 is only to be proved by claimants beyond preponderance of probabilities as distinguished from beyond reasonable doubt. In view of above said discussion, it has been proved beyond preponderance of probabilities that the case accident was caused by R1 while driving the offending vehicle in a rash and negligent manner.
8.8 In the said circumstances, testimony of PW1 and other record including the Charge sheet against R1, it has been clearly proved beyond preponderance of probabilities that the case accident was caused at the above said date, time and place and in the above said manner by the rash and negligent driving of R1 by which he drove the offending vehicle rashly and negligently and thereby caused the death of deceased.
Issue no.1 is decided in favour of petitioners and against the respondents accordingly.
9. Issue No. (2) In view of my findings on issue no.1, the petitioners are entitled to compensation.
9.1 PW2 ( mother of the deceased) has deposed through her evidence by way of affidavit Ex. PW2/A. She deposed that her deceased son was working as Ticketing Executive with M/s Pinki Tour & Travels (Regd.) C3, First Floor, Wazirpur Industrial Area, Delhi and was getting salary of Rs. 14,000/ per month. She has proved the salary slip of deceased as Ex. PW2/7.
9.2 Petitioners have also examined Sh. [ENTITY], Accountant of M/s LR' of [ENTITY] vs [ENTITY] Page 8 of22
Pinki Tour & Travels (Regd.) as PW3. He has also proved the salary slip Ex. PW2/7 bearing the signature of Proprietor Mr. [ENTITY] at point X. 9.3 PW3 was cross examined by ld counsel for insurance co/R3 wherein he admitted that he had not brought the salary register. He volunteered that he had brought the attendance register of the employee. He denied the suggestion that Ex. PW2/7 was a false and fabricated document. 9.3.1 The salary slip of the deceased for the month of May 2015 issued by Pinki Tour & Travels (Regd.) mentioning the deceased as Ticketing Executive has been proved as Ex. PW2/7. PW3 was an accountant with M/s Pinki Tour & Travels (Regd.) and nothing has appeared in his cross examination to discredit his testimony. It is thus evident that the salary Ex. PW2/7 can be relied upon to calculate the monthly income of the deceased. It mentions that the deceased was having a total monthly salary of Rs. 14,000/. In facts, the monthly salary of the deceased is taken as Rs. 14,000/. 9.4 The copy of grade sheet of the deceased issued by CBSE for Secondary School examination has been proved as Ex. PW2/4. It mentions his date of birth as 26.05.1995. It would show that he was aged about 19 years & 11 months on the date of accident i.e. 20.05.2015.
10. Addition of future prospects If addition in income towards future prospects is to be made 10.1 In this regard, reference should be made to the latest Constitutional Bench Judgment of Hon'ble Supreme Court of India in case of National Insurance Company Limited vs. [ENTITY] & Ors, SLP (Civil) No. 25590 of 2014, date of decision 31.10.2017.
In the said judgment of [ENTITY] (Supra), the Hon'ble Apex Court interalia held as under:
61. In view of the aforesaid analysis, we proceed to record our conclusions:
(iii) While determining the income, an addition of 50% of actual LR' of [ENTITY] vs [ENTITY] Page 9 of22 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 selfemployed 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.
(v) For the determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of [ENTITY] which we have reproduced hereinbefore.
(vi) The selection of multiplier shall be as indicated in the Table in [ENTITY] read with paragraph 42 of that judgment.
(vii) The age of the deceased should be the basis for applying the multiplier.
(viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and future 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. "
( Emphasis Supplied) 10.2 In the case in hand, the deceased was a self employed person and in terms of above said judgment, while determining his income for computing LR' of [ENTITY] vs [ENTITY] Page 10 of22 compensation, future prospects have to be added to fall within the ambit and sweep of just compensation under [SECTION] of [ACT]. 10.3 The age of the deceased, as discussed above, in the present case was about 19 years & 11 months. In view of paragraph no. 61 (iv) of above said judgment in [ENTITY] (Supra), the deceased would be entitled to an addition of 40% of the established income as he was below the age of 40 years at the time of his death.
10.4 The monthly income of the deceased is thus calculated as Rs. 14,000/+40% of 14,000/ which comes to Rs. 14,000/+ Rs.5600/. = Rs.19,600/.
11. Deduction towards personal and living expenses of the deceased:
11.1 The deceased seemed to be unmarried at the time of his death.
Claimants are the parents of deceased. The father of deceased cannot be said to be dependent upon the deceased.
11.2 Hence, there was only 1 dependent upon the deceased i.e. his mother Smt. [ENTITY]/petitioner no.1. In facts, the deduction towards personal and living expenses of the deceased should be 50% in view of the settled law by the Hon'ble Apex Court in cases of [ENTITY] vs. Delhi Transport Corporation, 2009 ACJ 1298: (2009) 6 SCC 121 which has been upheld by the Constitutional Bench of Hon'ble Apex Court in the case of [ENTITY] (Supra) in paragraph no 61 (v) of the judgment.
12. Selection of multiplier:
12.1 As discussed above, the age of the deceased was about 19 years & 11 months at the time of his death. In view of paragraph no. 61(vii) of the judgment in the case of [ENTITY] (Supra), the age of deceased should be the basis for applying the multiplier. Accordingly, the relevant multiplier would be "18" as per judgment in case of [ENTITY] (Supra) which has been upheld in paragraph no. 61 (vi) in case of [ENTITY] (Supra).
13. Loss of financial dependency In the light of aforesaid facts, loss of financial dependency of the LR' of [ENTITY] vs [ENTITY] Page 11 of22 petitioner comes to Rs. 21,16,800/ [i.e. Rs. 19,600/ ( per month income of the deceased) X12 X18 (multiplier) X1/2 (dependency)].
14. Compensation under nonpecuniary heads/conventional heads:
14.1 In view of the judgment of Constitution Bench of Hon'ble Apex Court in case of [ENTITY] (Supra), as held in paragraph number 61 (viii) of the said judgment, the petitioners would be entitled to Rs. 15,000/ towards loss of estate and Rs. 15,000/ towards funeral expenses.
15. Filial Consortium/Consortium.
15.1 The deceased was unmarried person and the petitioners/claimants are his parents. It is now a settled law in terms of Judgment of Hon'ble Supreme Court of India, in case of [PRECEDENT], date of decision 18.09.2018: 2018(8) SCJ 338:2018 SCC Online SC 1546 and the judgment of Hon'ble Delhi High Court in case of [PRECEDENT] date of decision 03.04.2019 that the compensation under the head of filial consortium is required to be awarded to all the claimants to the tune of Rs. 40,000/ each. In the present case there are two claimants who are parents of the deceased, hence, Rs. 80,000/ (Rs. 40,000/ x 2) are being granted under the said head.
16. LOSS OF LOVE & AFFECTION 16.1 The Hon'ble Delhi High Court in the latest case of The [PRECEDENT], CM APPL.
44502/2019 & [CASE NUMBER] date of decision 09.10.2019 after referring to [ENTITY] (Supra) and Magma General Insurance Co. Ltd (Supra) has given Rs. 50,000/ each to the claimants towards loss of love and affection. In view of above, 1,00,000/ (Rs. 50,000/ x 2) are granted to claimants as there are 2 claimants.
17. Medical Bills 17.1 PW2 i.e. mother of deceased deposed that the petitioners paid Rs. 1,00,494/ to Fortis hospital, Shalimar Bagh, Delhi for the treatment/operation LR' of [ENTITY] vs [ENTITY] Page 12 of22 of the deceased.
17.2 In that regard reference was made by the ld counsel for the claimants and the ld counsel for insurance co to the Bill no. 1003/15/I/Cr/0000399 dated 22.05.2015 of Fortis hospital, Shalimar Bagh, Delhi regarding the deceased which was part of the [ACT] Ex. PW2/3 (colly). It was an admitted position during arguments that the total of said bill was Rs. 2,86,686/ out of which patient share was mentioned as Rs. 86,686/ and Rs. 2,00,000/ was the share of Bajaj AllianzPune (Insurance co.). It was thus an admitted position that the claimants paid total Rs. 86,686/ towards the said bill at Fortis hospital, Shalimar Bagh, Delhi.
17.3 In view of above said discussion, Rs. 86,686/ are granted under the present head.
18. Petitioners/claimants are accordingly entitled to compensation computed as under:
Loss of financial dependency Rs. 21,16,800/ Loss of Estate Rs. 15,000/ Funeral Expenses Rs. 15,000/ Loss of Consortium/Filial Consortium Rs. 80,000/ Loss of Estate Rs. 1,00,000/ Medical Bills Rs. 86,686/ Total Rs. 24,13,486/ [Rounded off to Rs. 24,13,500/]
(Rupees Twenty Four Lakhs Thirteen Thousand Five hundred only) 18.2 The claimants/petitioners are also entitled to interest @ 9% p.a. for the date of filing of [ACT]/petition i.e. w.e.f 25.08.2015 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 [PRECEDENT] . 18.3 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.
LR' of [ENTITY] vs [ENTITY] Page 13 of22 19. Liability 19.1 The ld counsel for insurance co/R3 has argued that it is an
admitted position from the [ACT] that the offending vehicle was not having a fitness certificate at the time of accident. He argued that when a transport vehicle was not having a fitness certificate then it would be deemed that it was not having a valid permit. He argued that only after having a valid fitness certificate, the necessary permit would be issued in terms of [ACT]. He thus prayed for recovery rights in favour of the insurance co. and referred to the judgment of Hon'ble High Court of Kerala at Ernakulam in the case of [ENTITY] vs. Oriental Insurance Co. Ltd., MACA No. 2030/2015 date of decision 09.10.2018.
19.2 The [ACT] would show that the offending vehicle with registration no. DL1GB6588 was a heavy goods vehicle with type of body as a 'Mixer'. It was registered in the name of Metro Concrete Pvt. Ltd. The verification report of driving licence of R1 is also a part of [ACT] showing that it was valid as on the date of the accident. The permit particulars details of the said offending vehicle as verified by the IO in the [ACT] are also on record showing that the offending vehicle had a valid permit on the date of accident i.e. 20.05.2015. The authorisation certificate of N.P. (Goods) qua the offending vehicle is also on record as issued by Transport Department, Delhi as part of [ACT] which would show that the said National Permit qua the offending vehicle was valid as on the date of accident. The fitness certificate is however, not on record and in fact the [SECTION] of [ACT] would mention that the offending vehicle was without fitness.
19.3 The ld counsel for insurance co/R3 has argued while referring to the judgment of Hon'ble Kerala High Court at Ernakulam in the case of [ENTITY] (supra) that without a fitness certificate, a transport vehicle would not be deemed to be having a valid permit. The law regarding the permit has however, been settled by our own Hon'ble High Court of Delhi to the effect that the non possession of the fitness certificate would not be treated as a fundamental breach of terms and conditions of the policy or to have LR' of [ENTITY] vs [ENTITY] Page 14 of22 contributed to the cause for accident. My views are substantiated by the judgment of The Hon'ble Delhi High Court in the case titled as [PRECEDENT] date of decision 04.04.2016. The Hon'ble Delhi High Court in the case of [ENTITY] vs Reeta & Ors, MAC.APP.77/2017, date of decision 26.04.2018 has inter alia held as follows:
"6. Learned counsel for the appellants in [CASE NUMBER] submits that the recovery rights have been granted to the Insurance Company on the ground that there was no fitness certificate. It is submitted that the appellants had a valid permit in respect of the offending vehicle and the driver was having valid driving licence at the time of incident. It is submitted that fitness certificate is not a permissible ground for grant of recovery rights. Reliance is placed on [ENTITY]. v. Nicolleta Rohtagi, II (2002) ACC 292 (SC) and [PRECEDENT], [CASE NUMBER] decided on 13th October, 2011 in which this court has declined the recovery rights on the similar grounds. Following [ENTITY]. vs Nicolleta Rohtagi (supra) and [PRECEDENT] (supra), the recovery rights granted by the Claims Tribunal are set aside."
19.4 I rely upon the judgments of our own Hon'ble Delhi High Court in the above said case of [ENTITY] (Supra) and [PRECEDENT] (Supra). In view of the said settled law by the Hon'ble Delhi High Court no recovery rights can be granted in favour of the insurance co. and the prayer in that regard of the ld counsel for insurance co/R3 is rejected.
19.5 In facts and as per settled law, since the offending vehicle was duly insured with the insurance company/R3, hence R3 is liable to pay the entire compensation amount to the petitioners as per law.
19. Accordingly, in the case in hand, in terms of order dated LR' of [ENTITY] vs [ENTITY] Page 15 of22 16.05.2017 of Hon'ble High Court by Hon'ble Mr. Justice [ENTITY] in case of [PRECEDENT]., National Insurance co./R3 is directed to deposit the awarded amount of Rs. 24,13,500/ within 30 days from today within the jurisdiction of this Tribunal i.e. State Bank of India, Rohini Courts Branch, Delhi alongwith interest at the rate of 9 % per annum from the date of filing of the petition till notice of deposition of the awarded amount to be given by R3/Insurance co to the petitioners and their advocates and to show or deposit the receipt of the acknowledgement with the [ENTITY] as per rules. R3/insurance co 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
20. Joint statement of petitioners in terms of clause 29 [ACT] was recorded on 18.09.2019 regarding their savings bank a/c with endorsement of MACT claims SB A/c, no loan, cheque book & ATM/debit card. 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 [PRECEDENT], for appropriate investments to safeguard the amount from being frittered away by the beneficiaries owing to their ignorance, illiteracy and being susceptible to exploitation, following arrangements are hereby ordered: 20.1 Keeping in view the facts and circumstances of the case, on realization, an amount of Rs. 9,00,000/ be given to Sh. [ENTITY] father of deceased and from the same an amount of Rs. 1,00,000/ be released to him in his savings bank account a/c no.1513000102420629 with PNB, Tri Nagar branch, Delhi as per rules i.e. the branch near his place of residence (as mentioned in statement recorded under clause 29 [ACT]) and remaining LR' of [ENTITY] vs [ENTITY] Page 16 of22 amount be kept in his name in 48 FDRs of equal amount for a period of one month to 48 months with cumulative interest without the facility of advance, loan and premature withdrawal without the prior permission of the Tribunal.
20.2 Remaining amount be given to Smt. [ENTITY] who is mother of deceased and from the same an amount of Rs.1,50,000/ be released to her in her savings bank account a/c no. 1513000102419313 with PNB, Tri Nagar branch, Delhi as per rules i.e. the branch near her place of residence (as mentioned in statement recorded under clause 29 [ACT]) and remaining amount be kept in her name in 48 FDRs of equal amount for a period of one month to 48 months with cumulative interest without the facility of advance, loan and premature withdrawal without the prior permission of the Tribunal.
20.3 It shall be subject to the following further conditions and directions in terms of order dated 07.12.2018 of Hon'ble Mr. Justice [ENTITY] in case of [PRECEDENT] with respect to fixed deposits :
(a) The bank shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the victim i.e. the saving bank account(s) of the claimant(s) shall be individual savings account(s) and not a joint account(s).
(b) The original fixed deposit shall be retained by the bank in safe custody. However, the statement containing FDR number, FDR amount, date of maturity and maturity amount shall be furnished by bank to the claimant(s).
(c) The monthly interest be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant/(s) near the place of their residence.
(d) The maturity amount of the FDR(s) be credited by Electronic Clearing System (ECS) in the saving bank account of the claimant(s) near the LR' of [ENTITY] vs [ENTITY] Page 17 of22 place of their residence i.e. above said a/c.
(e) No loan, advance or withdrawal or premature discharge be allowed on the fixed deposits without permission of the court.
(f) The concerned Bank shall not to issue any cheque book and/or debit card to claimant(s). However, 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 debit card(s) freeze the account of the claimant(s) so that no debit card be issued in respect of the account of the claimant(s) from any other branch of the bank.
(g) The bank shall make an endorsement on the passbook of the claimant(s) to the 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.
(h) It is clarified that the endorsement made by the bank along with the duly signed and stamped by the bank official on the pass book(s) of the claimant(s) is sufficient compliance of clause (g) above.
21. Relief 21.1 As discussed above, R3 is directed to deposit the award amount of Rs. 24,13,500/ with interest @ 9% per annum from the date of filing of [ACT]/petition i.e. 25.08.2015 till realization within the jurisdiction of this Tribunal i.e. SBI , Rohini Court 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 R3 shall be liable to pay interest @ 12% per annum from the period of delay beyond 30 days. 21.2 R3 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. A copy of this judgment/award be sent to respondent no. 3 for compliance within the LR' of [ENTITY] vs [ENTITY] Page 18 of22 granted time.
21.3 [ENTITY] is directed to place a report on record in the event of non receipt/deposit of the compensation amount within the granted time.
It is clarified that latest directions of Hon'ble Delhi High Court regarding opening of MACT Claims SB account by the claimants in terms of order dated 07.12.2018 of Hon'ble Justice [ENTITY] in case of [PRECEDENT]. FAO 842/2003 under the Motor Accident Claims Annuity Deposit (MACAD) Scheme have been given separately in the order sheet. It is further clarified that the present award has only been passed as the statement of the claimants under clause 29 of [ACT] had already been recorded. It is also clarified that if the claimants fail to comply with the said directions then the compensation amount shall not be disbursed to them till compliance of the aforesaid directions by them.
In terms of directions contained in the order dated 07.12.2018 and subsequent order dated 22.02.2019 of Hon'ble Mr. Justice [ENTITY] in the case of [PRECEDENT], the copy of the award be also sent by the Ahlmad of the court to Mr. [ENTITY], Assistant General Manager, State Bank of India (as per the list of nodal officers of 21 banks of Indian Bank's Association as circulated to the Motor Accident Claims Tribunal vide above mentioned order dated 22.02.2019 of Hon'ble Delhi High Court) who is the Nodal Officer with contact details (02222741336/9414048606) {other details Personal Banking Business Unit (LIMA) 13th Floor, State Bank Bhawan, Madame Cama Road, Nariman Point, Mumbai400021} through email ([emailprotected]) through the computer branch of Rohini Courts, Delhi. Ahlmad of the court is directed to take immediate steps in that regard.
21.4 A copy of this award be forwarded to the concerned Metropolitan Magistrate and DLSA in terms of the orders passed by the Hon'ble High Court LR' of [ENTITY] vs [ENTITY] Page 19 of22 in [PRECEDENT]. vide order dated 12.12.2014.
In view of the directions contained in order dated 18.01.2018 of Hon'ble Mr. Justice [ENTITY] in [CASE NUMBER] titled as [PRECEDENT], joint statement of petitioners was also recorded on 18.09.2019 wherein they had stated that claimants were entitled to exemption from deduction of TDS and that they would submit form 15G to insurance co. so that no TDS is deducted.
22. Form IVA which has been duly filled in has also been attached herewith. 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. R3 is directed to obtain, if so required, the copy of necessary documents of petitioners from the court record.
[ENTITY] BANSAL Date: 2019.11.28 13:29:45 +0530 Announced in open court ([ENTITY]) on 28th November 2019 PO MACT N/W Rohini Courts, Delhi. LR' of [ENTITY] vs [ENTITY] Page 20 of22 FORM - IV A
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN DEATH CASES TO BE INCORPORATED IN THE AWARD
1. Date of accident : 20.05.2015
2. Name of deceased: Sh. [ENTITY]
3. Age of the deceased: 19 years & 11 months at the time of accident
4. Occupation of the deceased: Self employed/private job
5. Income of the deceased: 19,600/ per month
6. Name, age and relationship of legal representatives of deceased:
S.No. Name Age Relation (i) Smt. [ENTITY] 51 years mother (ii) Sh. [ENTITY] 56 years father (iii) (iv) (iv) Computation of Compensation S.No. Heads Awarded by the Claims Tribunal 7. Income of the deceased (A) Rs. 14,000/ . 8. AddFuture Prospects (B) 40%= Rs.5600/ 9. LessPersonal expenses of the 1/2nd deceased (C ) 10. Monthly loss of dependency Rs.9800/ { (A+B) - C =D} 11. Annual loss of dependency (Dx12) Rs. 1,17,600/
13. Total loss of dependency (Dx12xE Rs. 21,16,800/ = F)
14. Medical Expenses (G) Rs. 86,686/
15. Compensation for loss of love and Rs. 1,00,000/ affection (H)
16. Compensation for loss of Rs. 80,000/ LR' of [ENTITY] vs [ENTITY] Page 21 of22 consortium (I)
17. Compensation for loss of estate (J) Rs. 15,000/
18. Compensation towards funeral Rs. 15,000/ expenses (K)
19. TOTAL COMPENSATION Rs. 24,13,500/ (after (F+G+H+I+J+K =L) rounding of)
20. RATE OF INTEREST AWARDED 9% 21 Interest amount up to the date of Rs. 9,23,169/ award (M)
22. Total amount including interest Rs. 33,36,669/ (L+M)
23. Award amount released Rs. 2,50,000/ to the petitioners.
24. Award amount kept in FDRs Rs. 30,86,669/
25. Mode of disbursement of the award As per award and in terms amount to the claimant (s) (Clause of clause 29 of [ACT].
26. Next date for compliance of the 15.01.2020.
award. (Clause 31) Digitally signed by [ENTITY] Date: 2019.11.28 13:29:55 +0530 ([ENTITY]) PO MACT N/W Rohini Courts, Delhi. 28.11.2019 LR' of [ENTITY] vs [ENTITY] Page 22 of22