$~56 * IN THE HIGH COURT OF DELHI AT NEW DELHI + FAO 842/2003 RAJESH TYAGI & ORS. ..... Appellants Through: None versus JAIBIR SINGH & ORS. ..... Respondents Through: Mr. Rahul Mehra, Sr. Standing Counsel (Crl.) for GNCTD with Mr. Tushar Dahiya, Adv. along with ASI Anil. Mr. Anoop J. Bambhani, Sr. Adv. as amicus curiae with Ms. Lakshita Sethi. Mr. Satyam Thareja, Adv. for Mr. Sidharth Luthra, Sr. Adv. as amicus curiae. Mr. Kanwal Choudhary, Adv. for New India Assurance Company. CORAM: HON'BLE MR. JUSTICE J.R. MIDHA O R D E R % 16.12.2016 1. Mr. Anoop J. Bhambhani and Mr. Satyam Thareja, learned amicus curiae submit that they have examined the reports of the Claims Tribunals. It is further submitted that fresh directions are required to be issued to the Claims Tribunals and Delhi Police for implementation of modified Claims Tribunal Agreed Procedure (hereinafter referred to as MCTA Procedure) in its true letter and spirit. The submissions of learned amicus curiae are as under:- 1.1. All the Claims Tribunals are not incorporating Form IV of the MCTA Procedure in the awards. 1.2. The Nazirs are not maintaining the records in terms of Form V of the MCTA Procedure. 1.3. All the Claims Tribunals are not examining the claimants before passing the award and the Claims Tribunals are mechanically following a straight jacket formula for disbursement of compensation amount to the claimants. 1.4. All the Claims Tribunals are not fixing dates to follow up the deposit and disbursement of the award amount. 1.5. The Investigating Officers do not ensure presence of eye-witnesses along with claimants/victims and accused at the time of filing of DAR in all cases. 2. Mr. Rahul Mehra, learned Senior Standing Counsel for Delhi Police seeks modification/clarification of the order dated 12th December, 2014. The submissions made by learned Senior Standing Counsel on behalf of Delhi Police are as under:- 2.1 In some cases, the injured, who is hospitalized or bedridden, neither joins the investigation nor attends Claims Tribunal at the time of filing of the DAR despite repeated requests which results in delay in filing of DAR. In such cases, the DAR may be accepted without the presence of the claimant/victim. 2.2 In some un-traced cases, the complainant/injured do not attend the Claims Tribunal at the time of filing the DAR. In such cases, the DAR may be accepted without the presence of the claimant/victim. 2.3 In hit and run cases, the offending vehicle is un-traced and it takes a considerable time to complete the investigation diligently, which causes delay in filing the DAR. In such cases, extension of time limit may be granted. 2.4 In some cases, all the stake holders (driver, owner, representatives of insurance company, legal heirs of deceased/injured) do not appear together on the date of filing DAR, despite best efforts by the Investigating Officer. In these cases, the summons may be issued by the Claims Tribunal. 2.5 There is no system for on-line verification of the driving licences issued by other States and registration certificate of vehicles registered in other States. The extension in time in such cases may be granted. 2.6 The Post-mortem/MLC reports are not received on time and DAR be accepted without these documents or the extension in time limit may be granted in such cases. 2.7 In cases where victim has not attended any school, the age shown in the voter identity card may be accepted. 2.8 In some cases, the injured/legal heirs of the deceased do not provide documents relating to the income, dependency, medical papers etc. In such cases, DAR be accepted without the aforesaid documents. 2.9 There are cases where the victim proceeds to his native place without submitting the required documents and does not return to Delhi to attend the Court as he neither has any permanent residence and nor any family support in Delhi. In such circumstances, securing the presence of the victim in the Claims Tribunal, at the time of filing of DAR becomes very difficult. In such cases, the DAR may be accepted without the presence of the claimant/victim. 2.10 In cases where two or more injured are involved in the accident, the victims having simple injuries do not take interest in attending the MACT. There are eight cases where two or more persons received simple injuries and they did not take interest in attending the Claims Tribunal. In such cases, DAR may be accepted without their presence. 2.11 In many cases, Investigating Officer seek verification report on registration certificate, fitness and permit of the vehicle from the Road Transport Authority whereupon the concerned officer from Transport Authority supplies all three reports on a single sheet whereas the Claims Tribunal insist on separate report on separate sheets. When the concerned officer of the Authority is requested for the same, he expresses his inability on the ground that the computer programme generates the report on a single sheet and that separate reports cannot be provided. Suitable instructions may be given to the Claims Tribunal to accept the report on single sheet or the Transport Authorities may be directed to change the programming in this regard. 2.12 Nodal Officers of insurance companies do not appear on the first date of hearing and instead advocates appear on their behalf. Necessary instructions may be passed in this regard to the insurance companies. 2.13 In cases where treatment is prolonged or injured person(s) remain hospitalized for long time, treatment documents cannot be verified as discharge summary/treatment papers are made available only at the time of discharge, which causes delay in filing the DAR. In such cases, the DAR may be accepted without the presence of the complainant. 2.14 The Claims Tribunals accept DAR only after filing of chargesheet in Court. However, prosecution branch often takes some time in scrutiny of chargesheet, thereby causing delay in filing of DAR. 3. Directions The Court has considered the submissions of the learned amicus curie as well as learned Senior Standing Counsel for Delhi Police. The directions to the Claims Tribunals and Delhi Police are as under: - 3.1 The Claims Tribunals shall incorporate Form IV of the Modified Claims Tribunal Agreed Procedure in all its awards. 3.2 The Claims Tribunals shall ensure that the Nazir maintains the record in Form V of the Modified Claims Tribunal Agreed Procedure. 3.3 The Tribunal shall examine the claimants before passing directions for disbursement of compensation amount in a phased manner and pass orders after considering the needs of the claimants, as prescribed in Para 26 of the MCTAP (See order dated 12.12.2014) which reads as follows – “26.Examination of the claimants before passing of the award Before or at the time of passing of the award, the Claims Tribunal shall examine the claimants to ascertain their financial condition/needs to determine their share, mode of disbursement, amount to be kept in fixed deposit and period of fixed deposit. The Claims Tribunals shall also ascertain the complete address and Bank Account details of the claimants. The Claims Tribunal shall take on record the following documents from the claimants: i. Proof of residence; ii. Details of the Bank Account of the Claimants; and iii. Two sets of photographs and specimen signatures of the claimants.” 3.4 Disbursement of the award amount in a phased manner This Court is of the view that the award amount should be disbursed to the claimants in a phased manner. For example, in a case of disbursement of the award amount of Rs.5 lakh in favour of the widow who has no source of livelihood and her expenditure is Rs.5,000/- per month, it would be appropriate to keep Rs.5 lakh in 100 FDRs of Rs.5,000/- with cumulative interest. The benefit of such disbursement would be that the maturity amount of FDR will keep on increasing every month and by the time the 100th FDR is matured, the maturity amount would be more than Rs.8,000/-. The gradual increase of the maturity amount every month would take care of the inflation as well as the growing needs of the claimant. The Claims Tribunal may also consider keeping one annual FDR for higher amount e.g. three or four times of the monthly FDR to enable the claimant to bear the annual financial exigencies such as admission of children, repair of house etc. If the monthly expenditure of the deceased is Rs.10,000/-, the Claims Tribunal may direct Rs.5,00,000/- to be kept in 50 FDRs of Rs.10,000/- instead of 100 FDRs. 3.5 The Claims Tribunal shall fix the case for reporting the compliance in terms of Clause 30 of the MCTAP (See order dated 12.12.2014) which reads as follows – “30.Claims Tribunal shall fix a date for reporting compliance i. The Claims Tribunal shall fix a date for reporting compliance in the award itself. The Claims Tribunal shall also direct the Insurance Company and/or driver or owner to place on record the proof of deposit of the award amount, the notice of deposit and the calculation of interest on the date fixed. Upon such proof being filed, the Claims Tribunal shall ensure that the interest upto date of notice of deposit has been deposited by all concerned. ii. If the award amount is not deposited within the stipulated period, the Claims Tribunal shall attach the bank account of the insurance company in terms of principles laid down in New India Assurance Company Ltd. v. Kashmiri Lal, (2005) 125 DLT 571. iii. If the award of the Claims Tribunal is stayed by the High Court in appeal, the Claims Tribunal shall close the matter with liberty to the claimants to revive it after the decision of the appeal.” 3.6 The Claims Tribunals, in case of any delay or deficiency on part of the investigating agency or the insurance company, may consider recommending adverse entry to be made in the service record of concerned officer, in terms of Paragraph 29 of the MCTA Procedure (See Order dated 12.12.2014) which reads as follows – “29.Claims Tribunal shall deal with the compliance of the provisions in the award In order to implement the new provisions for payment of compensation to the victim of the road accident within 90 days to 120 days of the accident, in true letter and spirit, the Claims Tribunal shall deal with the compliance of the new provisions in the award, especially as to whether there has been any delay or deficiency on the part of the Investigating Officer of the Police and/or the Designated Officer of the Insurance Company. In the event of any delay or deficiency on the part of the Investigating Officer of the Police, the Claims Tribunal may consider recommending adverse entry to be made in the service record of the concerned officer. In case of delay or deficiency on the part of the Designated Officer of the Insurance Company, the Claims Tribunal may consider recommending adverse entry to be made in the service record of the concerned officer or impose cost/penal interest to be recovered from the salary of the officer in default. The format of the check list of the issues required to be dealt with by the Claims Tribunal in its award shall be in Form IV.” 3.7 In cases of grievous injuries where the injured is hospitalised or bedridden and unable to join the investigation or appear before the Claims Tribunal at the time of filing of DAR, the Claims Tribunal shall, upon application of the Investigating Officer, exempt the personal appearance of the complainant. 3.8 In cases of non-cooperation of the injured/legal representatives of the deceased, the Investigating Officer shall seek the exemption of their personal appearance at the time of filing of DAR and the Claims Tribunal shall issue notice to the injured/legal representatives of the deceased. This aspect has already been covered in para 14 of the order dated 12th December, 2014. 3.9 In hit and run cases, where the Investigating Officer is unable to trace the offending vehicle and he seeks extension of time to complete the investigation and file the DAR, the Claims Tribunal shall suitably extend the time. This aspect has been discussed in paras 12 and 13 of the Modified Claims Tribunal Agreed Procedure recorded in the order dated 12th December, 2014. 3.10 If the Investigating Officer is unable to produce the driver, owner, claimants together at the same time before the Claims Tribunal at the time of filing of the DAR, the Claims Tribunal shall suitably extend the time upon an application by Investigating Officer. 3.11 In cases relating to verification of documents of vehicles involved in the accident and registered in other States where online system for verification is not available, the Investigating Officer shall seek extension of time for verification from the Claims Tribunal which shall be considered by the Claims Tribunal. 3.12 In cases where the post-mortem/MLC reports are not received on time, the Investigating Officer shall file the DAR without these reports and seek extension of time from the Claims Tribunal for submitting the relevant documents. The Claims Tribunal shall suitably extend the time in such cases. 3.13 In cases where the victim has not attended any school and the date of birth certificate is not available, the Investigating Officer shall collect the other relevant documents, namely, voter identity card etc. and file the same along with the Detailed Accident Report. 3.14 In cases where the injured/legal representatives of the deceased do not provide documents relating to the income, dependency, medical documents etc., the Investigating Officer shall file the DAR and seek direction from the Claims Tribunal to the claimants in terms of para 13 of the Modified Claims Tribunal Agreed Procedure to submit the same directly before the Claims Tribunal. 3.15 In cases where the injured/legal representatives of the deceased have gone to their native place without leaving any permanent address, the Claims Tribunal shall accept the DAR and issue notice to them in terms of para 14 of the Modified Claims Tribunal Agreed Procedure. 3.16 The common verification reports issued by the Road Transport Authorities with respect to registration certificate, fitness and permit should not be rejected on the technical ground that each report should be generated on a separate sheet. 3.17 The appearance of the nominated counsel of the insurance company on the first date of hearing is sufficient and the presence of the nodal officers of the insurance companies should not be insisted on the first date of hearing. 3.18 With respect to the delay caused by the prosecution branch in the scrutiny of the chargesheet, the Director Prosecution shall issue appropriate instructions to the prosecution branch to expedite the scrutiny of the chargesheet to meet the deadlines of the Claims Tribunal Agreed Procedure. 3.19 The Investigating Officer, in case of delay in receiving document(s), shall approach the MACT for filing DAR along with an application detailing the missing documents and request for reasonable time to be given to place the said documents on record. 4. In Jai Prakash Vs. National Insurance Co. SLP (C) No 11801- 11804/2005, vide order dated 13th May 2016, the Supreme Court directed the Registrar Generals of all High Courts to ensure that the Claims Tribunal Agreed Procedure is implemented by the Motor Accidents Claims Tribunals in coordination with the Legal Service Authorities and the Director General of Police of the States concerned. Relevant portion of the Supreme Court order is reproduced hereunder:- “Insofar as the said suggestion is concerned, learned Solicitor General drew our attention to the response filed before us on behalf of the General Insurance Council, in particular paragraph 4, which states that presently the procedure suggested in Paragraph 23 is being followed by the Insurance Companies in Delhi by way of a Scheme called “Claims Tribunal Agreed Procedure” which was formulated by the Delhi High Court in the judgment dated 16.12.2009 passed in FAO No.843 of 2003 in Rajesh Tyagi & Ors. v. Jaibir Singh & Ors. It is also mentioned therein that Tribunal as well as the Legal Service Authority are taking effective steps to implement the said procedure, which is being carried out in the National Capital Territory of Delhi. In paragraph 5, it is further submitted that since this procedure has been successful in Delhi it can be extended on pan India basis. The agreed procedure has also been filed as Annexure R5 with the response filed on behalf of the General Insurance Council. “We have also perused the procedure, which has been placed before us as Annexure R5 with the response which, in our view, appears to be a comprehensive one and that we can issue further directions to the Registrar General of the Delhi High Court to ensure that procedure is strictly followed insofar as Delhi is concerned and also circulate the said procedure to all the other High Courts and the Registrar General of all the other High Courts are directed to ensure that the said procedure is implemented through the Motor Accidents Claims Tribunals in coordination with the Legal Service Authorities as well as the Director General of Police of the States concerned. The Registry of the Supreme Court is directed to forward a copy of this order along with Annexure R5 (pages 32 to 46 in the response filed on behalf of the General Insurance Council) to all the High Courts including the Delhi High Court to ensure compliance of the present order.” 5. In view of the directions given by the Supreme Court, the Registrar General of this Court shall ensure the implementation of the Claims Tribunal Agreed Procedure by all the Motor Accident Claims Tribunals in coordination with the Delhi Legal Service Authority and the Delhi Police. All the Motor Accident Claims Tribunals shall submit the monthly compliance report to the Registrar General of this Court whereupon the Registrar General shall examine the said reports and ensure implementation of the Claims Tribunal Agreed Procedure in its true letter and spirit. The report for the period 1st July, 2016 to 31st January, 2017 shall be filed by all the Tribunals with the Registrar General by 28th February, 2017 along with copies of the five awards and thereafter, every succeeding month along with copies of the two awards. 6. List on 24th March, 2017 at the end of the Board. 7. The Registrar General shall submit the report with respect to the implementation of Modified Claims Tribunal Agreed Procedure by the Claims Tribunals before the next date of hearing. 8. A status report has been handed over on behalf of Ministry of Road Transport and Highways which is taken on record. With respect to the queries raised by this Court, time is sought to place a fresh status report on the next date of hearing. 9. Copy of this order be given dasti to counsel for the parties under the signature of the Court Master. 10. Copy of this order be sent to the Registrar General who shall circulate it to all the Claims Tribunals. J.R. MIDHA, J. DECEMBER 16, 2016 dk