CIVIL APPEAL None

IN THE HIGH COURT OF DELHI AT NEW DELHI

+FAO 842/2003

RAJESH TYAGI & ORS.

Through:None

..... Appellants

versus

JAIBIR SINGH & ORS.

..... RespondentsThrough:Mr.RahulMehra,Sr.StandingCounsel (Crl.) for GNCTD with Mr.Tushar Dahiya, Adv. along with ASIAnil.Counsel (Crl.) for GNCTD with Mr.Tushar Dahiya, Adv. along with ASIAnil.

Mr. Anoop J. Bambhani, Sr. Adv. asamicuscuriaewithMs.LakshitaSethi.Mr. Satyam Thareja, Adv. for Mr.Sidharth Luthra, Sr. Adv. as amicuscuriae.Mr. Kanwal Choudhary, Adv. forNew India Assurance Company.amicuscuriaewithMs.LakshitaSethi.Mr. Satyam Thareja, Adv. for Mr.Sidharth Luthra, Sr. Adv. as amicuscuriae.Mr. Kanwal Choudhary, Adv. forNew India Assurance Company.

CORAM:

HON'BLE MR. JUSTICE J.R. MIDHA

O R R%16.12.2016

1.Mr. Anoop J. Bhambhani and Mr. Satyam Thareja, learned amicuscuriae submit that they have examined the reports of the Claims Tribunals. Itis further submitted that fresh directions are required to be issued to theClaims Tribunals and Delhi Police for implementation of modified ClaimsTribunal Agreed Procedure (hereinafter referred to as MCTA Procedure) inits true letter and spirit. The submissions of learned amicus curiae are asunder:-

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 theMCTA Procedure.

1.3.All the Claims Tribunals are not examining the claimants beforepassing the award and the Claims Tribunals are mechanically following astraight jacket formula for disbursement of compensation amount to theclaimants.

1.4.All the Claims Tribunals are not fixing dates to follow up the depositand disbursement of the award amount.

1.5.The Investigating Officers do not ensure presence of eye-witnessesalong with claimants/victims and accused at the time of filing of DAR in allcases.

2.Mr. Rahul Mehra, learned Senior Standing Counsel for Delhi Policeseeks modification/clarification of the order dated 12[th]December, 2014.The submissions made by learned Senior Standing Counsel on behalf ofDelhi Police are as under:-

2.1In some cases, the injured, who is hospitalized or bedridden, neitherjoins the investigation nor attends Claims Tribunal at the time of filing of theDAR despite repeated requests which results in delay in filing of DAR. Insuch cases, the DAR may be accepted without the presence of theclaimant/victim.

2.2In some un-traced cases, the complainant/injured do not attend theClaims Tribunal at the time of filing the DAR. In such cases, the DAR maybe accepted without the presence of the claimant/victim.

2.3In hit and run cases, the offending vehicle is un-traced and it takes aconsiderable time to complete the investigation diligently, which causesdelay in filing the DAR.In such cases, extension of time limit may begranted.

2.4In some cases, all the stake holders (driver, owner, representatives ofinsurance company, legal heirs of deceased/injured) do not appear togetheron the date of filing DAR, despite best efforts by the Investigating Officer.In these cases, the summons may be issued by the Claims Tribunal.

2.5There is no system for on-line verification of the driving licencesissued by other States and registration certificate of vehicles registered inother States. The extension in time in such cases may be granted.

2.6The Post-mortem/MLC reports are not received on time and DAR beaccepted without these documents or the extension in time limit may begranted in such cases.

2.7In cases where victim has not attended any school, the age shown inthe voter identity card may be accepted.

2.8In some cases, the injured/legal heirs of the deceased do not providedocuments relating to the income, dependency, medical papers etc. In suchcases, DAR be accepted without the aforesaid documents.

2.9There are cases where the victim proceeds to his native place withoutsubmitting the required documents and does not return to Delhi to attend theCourt as he neither has any permanent residence and nor any family supportin Delhi. In such circumstances, securing the presence of the victim in theClaims Tribunal, at the time of filing of DAR becomes very difficult. Insuch cases, the DAR may be accepted without the presence of theclaimant/victim.

2.10In cases where two or more injured are involved in the accident, thevictims having simple injuries do not take interest in attending the MACT.There are eight cases where two or more persons received simple injuriesand they did not take interest in attending the Claims Tribunal.In suchcases, DAR may be accepted without their presence.

2.11In many cases, Investigating Officer seek verification report on

registration certificate, fitness and permit of the vehicle from the RoadTransport Authority whereupon the concerned officer from TransportAuthority supplies all three reports on single sheet whereas the ClaimsTribunal insist on separate report on separate sheets. When the concernedofficer of the Authority is requested for the same, he expresses his inabilityon the ground that the computer programme generates the report on singlesheet and that separate reports cannot be provided. Suitable instructions maybe given to the Claims Tribunal to accept the report on single sheet or theTransport Authorities may be directed to change the programming in thisregard.

2.12Nodal Officers of insurance companies do not appear on the first dateof hearing and instead advocates appear on their behalf.Necessaryinstructions may be passed in this regard to the insurance companies.

2.13In cases where treatment is prolonged or injured person(s) remainhospitalized for long time, treatment documents cannot be verified asdischarge summary/treatment papers are made available only at the time ofdischarge, which causes delay in filing the DAR. In such cases, the DARmay be accepted without the presence of the complainant.

2.14The Claims Tribunals accept DAR only after filing of chargesheet inCourt. However, prosecution branch often takes some time in scrutiny ofchargesheet, thereby causing delay in filing of DAR.3.Directions

The Court has considered the submissions of the learned amicus curieas well as learned Senior Standing Counsel for Delhi Police. The directionsto the Claims Tribunals and Delhi Police are as under: -

3.1The Claims Tribunals shall incorporate Form IV of the ModifiedClaims Tribunal Agreed Procedure in all its awards.

3.2The Claims Tribunals shall ensure that the Nazir maintains the record

in Form V of the Modified Claims Tribunal Agreed Procedure.

3.3The Tribunal shall examine the claimants before passing directionsfor disbursement of compensation amount in phased manner and passorders after considering the needs of the claimants, as prescribed in Para 26of 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 ClaimsTribunal shall examine the claimants to ascertain theirfinancial condition/needs to determine their share, mode ofdisbursement, amount to be kept in fixed deposit and period offixed deposit. The Claims Tribunals shall also ascertain thecomplete address and Bank Account details of the claimants.The Claims Tribunal shall take on record the followingdocuments 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 theclaimants.”claimants.”

3.4Disbursement of the award amount in phased manner

This Court is of the view that the award amount should be disbursed to theclaimants in phased manner. For example, in case of disbursement of theaward amount of Rs.5 lakh in favour of the widow who has no source oflivelihood and her expenditure is Rs.5,000/- per month, it would beappropriate to keep Rs.5 lakh in 100 FDRs of Rs.5,000/- with cumulativeinterest.The benefit of such disbursement would be that the maturityamount of FDR will keep on increasing every month and by the time the100[th]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 ofthe inflation as well as the growing needs of the claimant.The ClaimsTribunal 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 theannual financial exigencies such as admission of children, repair of house

etc. If the monthly expenditure of the deceased is Rs.10,000/-, the ClaimsTribunal may direct Rs.5,00,000/- to be kept in 50 FDRs of Rs.10,000/-instead of 100 FDRs.

3.5The Claims Tribunal shall fix the case for reporting the compliance interms of Clause 30 of the MCTAP (See order dated 12.12.2014) which readsas follows –

“30.Claims Tribunal shall fix date for reporting compliancei.The Claims Tribunal shall fix date for reportingcompliance in the award itself. The Claims Tribunal shallalso direct the Insurance Company and/or driver or ownerto place on record the proof of deposit of the awardamount, the notice of deposit and the calculation ofinterest on the date fixed. Upon such proof being filed, theClaims Tribunal shall ensure that the interest upto date ofnotice of deposit has been deposited by all concerned.i.The Claims Tribunal shall fix date for reportingcompliance in the award itself. The Claims Tribunal shallalso direct the Insurance Company and/or driver or ownerto place on record the proof of deposit of the awardamount, the notice of deposit and the calculation ofinterest on the date fixed. Upon such proof being filed, theClaims Tribunal shall ensure that the interest upto date ofnotice of deposit has been deposited by all concerned.ii.If the award amount is not deposited within the stipulatedperiod, the Claims Tribunal shall attach the bank accountof the insurance company in terms of principles laid downin New India Assurance Company Ltd. v. Kashmiri Lal,(2005) 125 DLT 571.period, the Claims Tribunal shall attach the bank accountof the insurance company in terms of principles laid downin New India Assurance Company Ltd. v. Kashmiri Lal,(2005) 125 DLT 571.

iii.If the award of the Claims Tribunal is stayed by the HighCourt in appeal, the Claims Tribunal shall close the matterwith liberty to the claimants to revive it after the decisionof the appeal.”Court in appeal, the Claims Tribunal shall close the matterwith liberty to the claimants to revive it after the decisionof the appeal.”

3.6The Claims Tribunals, in case of any delay or deficiency on part oftheinvestigatingagencyortheinsurancecompany,mayconsiderrecommending adverse entry to be made in the service record of concernedofficer, in terms of Paragraph 29 of the MCTA Procedure (See Order dated12.12.2014) which reads as follows –

“29.Claims Tribunal shall deal with the compliance of theprovisions in the award

In order to implement the new provisions for payment ofcompensation to the victim of the road accident within 90 daysto 120 days of the accident, in true letter and spirit, the ClaimsTribunal shall deal with the compliance of the new provisions inthe award, especially as to whether there has been any delay or

deficiency on the part of the Investigating Officer of the Policeand/or the Designated Officer of the Insurance Company. In theevent of any delay or deficiency on the part of the InvestigatingOfficer of the Police, the Claims Tribunal may considerrecommending adverse entry to be made in the service record ofthe concerned officer. In case of delay or deficiency on the partof the Designated Officer of the Insurance Company, the ClaimsTribunal may consider recommending adverse entry to be madein the service record of the concerned officer or imposecost/penal interest to be recovered from the salary of the officerin default. The format of the check list of the issues required tobe dealt with by the Claims Tribunal in its award shall be inForm IV.”

3.7In cases of grievous injuries where the injured is hospitalised orbedridden and unable to join the investigation or appear before the ClaimsTribunal at the time of filing of DAR, the Claims Tribunal shall, uponapplication of the Investigating Officer, exempt the personal appearance ofthe complainant.

3.8In cases of non-cooperation of the injured/legal representatives of thedeceased, the Investigating Officer shall seek the exemption of theirpersonal appearance at the time of filing of DAR and the Claims Tribunalshall issue notice to the injured/legal representatives of the deceased. Thisaspect has already been covered in para 14 of the order dated 12[th]December,2014.

3.9In hit and run cases, where the Investigating Officer is unable to tracethe offending vehicle and he seeks extension of time to complete theinvestigation and file the DAR, the Claims Tribunal shall suitably extend thetime. This aspect has been discussed in paras 12 and 13 of the ModifiedClaims Tribunal Agreed Procedure recorded in the order dated 12[th]December, 2014.

3.10If 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 uponan application by Investigating Officer.

3.11In cases relating to verification of documents of vehicles involved inthe accident and registered in other States where online system forverification is not available, the Investigating Officer shall seek extension oftime for verification from the Claims Tribunal which shall be considered bythe Claims Tribunal.

3.12In cases where the post-mortem/MLC reports are not received ontime, the Investigating Officer shall file the DAR without these reports andseek extension of time from the Claims Tribunal for submitting the relevantdocuments.The Claims Tribunal shall suitably extend the time in suchcases.

3.13In cases where the victim has not attended any school and the date ofbirth certificate is not available, the Investigating Officer shall collect theother relevant documents, namely, voter identity card etc. and file the samealong with the Detailed Accident Report.

3.14In cases where the injured/legal representatives of the deceased do notprovide documents relating to the income, dependency, medical documentsetc., the Investigating Officer shall file the DAR and seek direction from theClaims Tribunal to the claimants in terms of para 13 of the Modified ClaimsTribunal Agreed Procedure to submit the same directly before the ClaimsTribunal.

3.15In cases where the injured/legal representatives of the deceased havegone to their native place without leaving any permanent address, theClaims Tribunal shall accept the DAR and issue notice to them in terms ofpara 14 of the Modified Claims Tribunal Agreed Procedure.

3.16The common verification reports issued by the Road TransportAuthorities with respect to registration certificate, fitness and permit should

not be rejected on the technical ground that each report should be generatedon separate sheet.

3.17The appearance of the nominated counsel of the insurance companyon the first date of hearing is sufficient and the presence of the nodal officersof the insurance companies should not be insisted on the first date ofhearing.

3.18With respect to the delay caused by the prosecution branch in thescrutiny of the chargesheet, the Director Prosecution shall issue appropriateinstructions to the prosecution branch to expedite the scrutiny of thechargesheet to meet the deadlines of the Claims Tribunal Agreed Procedure.3.19The Investigating Officer, in case of delay in receiving document(s),shall approach the MACT for filing DAR along with an application detailingthe missing documents and request for reasonable time to be given to placethe said documents on record.

4.In Jai Prakash Vs. National Insurance Co. SLP (C) No 11801-11804/2005, vide order dated 13[th]May 2016, the Supreme Court directedthe Registrar Generals of all High Courts to ensure that the Claims TribunalAgreed Procedure is implemented by the Motor Accidents Claims Tribunalsin coordination with the Legal Service Authorities and the Director Generalof Police of the States concerned. Relevant portion of the Supreme Courtorder is reproduced hereunder:-

“Insofar as the said suggestion is concerned, learned SolicitorGeneral drew our attention to the response filed before us onbehalf of the General Insurance Council, in particular paragraph4, which states that presently the procedure suggested inParagraph 23 is being followed by the Insurance Companies inDelhi by way of Scheme called “Claims Tribunal AgreedProcedure” which was formulated by the Delhi High Court in thejudgment dated 16.12.2009 passed in FAO No.843 of 2003 inRajesh Tyagi & Ors. v. Jaibir Singh & Ors.It is also mentionedtherein that Tribunal as well as the Legal Service Authority are

taking effective steps to implement the said procedure, which isbeing carried out in the National Capital Territory of Delhi. Inparagraph 5, it is further submitted that since this procedure hasbeen successful in Delhi it can be extended on pan India basis. Theagreed procedure has also been filed as Annexure R5 with theresponse filed on behalf of the General Insurance Council.

“We have also perused the procedure, which has been placedbefore us as Annexure R5 with the response which, in our view,appears to be comprehensive one and that we can issue furtherdirections to the Registrar General of the Delhi High Court toensure that procedure is strictly followed insofar as Delhi isconcerned and also circulate the said procedure to all the otherHigh Courts and the Registrar General of all the other HighCourts are directed to ensure that the said procedure isimplemented through the Motor Accidents Claims Tribunals incoordination with the Legal Service Authorities as well as theDirector General of Police of the States concerned.

The Registry of the Supreme Court is directed to forward copy ofthis order along with Annexure R5 (pages 32 to 46 in the responsefiled on behalf of the General Insurance Council) to all the HighCourts including the Delhi High Court to ensure compliance of the”present order.

5.In view of the directions given by the Supreme Court, the RegistrarGeneral of this Court shall ensure the implementation of the Claims TribunalAgreed Procedure by all the Motor Accident Claims Tribunals incoordination with the Delhi Legal Service Authority and the Delhi Police.All the Motor Accident Claims Tribunals shall submit the monthlycompliance report to the Registrar General of this Court whereupon theRegistrar General shall examine the said reports and ensure implementationof the Claims Tribunal Agreed Procedure in its true letter and spirit. Thereport for the period 1[st]July, 2016 to 31[st]January, 2017 shall be filed by allthe Tribunals with the Registrar General by 28[th]February, 2017 along withcopies of the five awards and thereafter, every succeeding month along with

copies of the two awards.

6.List on 24[th]March, 2017 at the end of the Board.

7.The Registrar General shall submit the report with respect to theimplementation of Modified Claims Tribunal Agreed Procedure by theClaims Tribunals before the next date of hearing.

8.A status report has been handed over on behalf of Ministry of RoadTransport and Highways which is taken on record.With respect to thequeries raised by this Court, time is sought to place fresh status report onthe next date of hearing.

9.Copy of this order be given dasti to counsel for the parties under thesignature of the Court Master.

10.Copy of this order be sent to the Registrar General who shall circulateit to all the Claims Tribunals.

DECEMBER 16, 2016

J.R. MIDHA, J.