Delhi District Court
Lr'S Of Baljeet Singh vs . Zorawar Singh & Ors Page 1 Of 36 on 31 January, 2022
LR's of Baljeet Singh Vs. Zorawar Singh & Ors Page 1 of 36
IN THE COURT OF MS. JASJEET KAUR, PRESIDING OFFICER, MOTOR
ACCIDENT CLAIMS TRIBUNAL, NORTH WEST DISTRICT, ROHINI COURTS,
DELHI
New No.492017
UNIQUE ID No. : DLNW010099492016
1. Sh. Pritam Singh S/o Sh. Gurdeep Singh,
R/o WZN22/A, Vishnu Garden,
Delhi.
(Father of the deceased)
2. Smt. Sarabjit Kaur W/o Late Sh. Pritam Singh,
R/o WZN22/A, Vishnu Garden,
Delhi.
(Mother of the deceased)
3. Smt. Harpret Kaur W/o Late Sh. Baljeet Singh
R/o WZN22/A, Vishnu Garden,
Delhi.
(Wife of the deceased)
........ Petitioners/claimants
Vs.
1. Sh. Zorawar Singh S/o Sh. Mohinder Singh,
R/o H.No. A118, Uday Vihar, Niloth Extension,
Nangloi, Delhi.
....... Drivercumowner/R1
2. National Insurance Company Limited,
2nd Floor, 9 Jhandewalan, Extension,
New Delhi.
........ Insurance Co./R2
Other details
DATE OF INSTITUTION : 09.12.2016
DATE OF RESERVING JUDGMENT : 31.01.2022
DATE OF PRONOUNCEMENT : 31.01.2022
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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 FAO 842/2003 RAJESH TYAGI Vs. JAIBIR SINGH
and ORS. VIDE ORDER DATED 07.12.2018.
1. Date of the accident 17.07.2016
2. Date of intimation of the accident by the 09.12.2016
investigating officer to the Claims Tribunal
3. Date of intimation of the accident by the 09.12.2016
investigating officer to the insurance company.
4. Date of filing of Report under section 173 Cr.P.C. Not mentioned in the
before the Metropolitan Magistrate DAR
5. Date of filing of Detailed Accident Information 09.12.2016
Report (DAR) by the investigating Officer before
Claims Tribunal
6. Date of Service of DAR on the Insurance Company 09.12.2016
7. Date of service of DAR on the claimant (s). 09.12.2016
8. Whether DAR was complete in all respects? Yes
9. If not, whether deficiencies in the DAR removed N/A
later on?
10. Whether the police has verified the documents filed Yes.
with DAR?
11. Whether there was any delay or deficiency on the N/A
part of the Investigating Officer? If so, whether any
action/direction warranted?
12. Date of appointment of the Designated Officer by 09.12.2016
the insurance Company.
13. Name, address and contact number of the Sh. S.K. Tyagi,
Designated Officer of the Insurance Company. Advocate
14. Whether the designated Officer of the Insurance No
Company submitted his report within 30 days of the
DAR? (Clause 22)
15. Whether the insurance company admitted the No
liability? If so, whether the Designated Officer of the
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insurance company fairly computed the
compensation in accordance with law.
16. Whether there was any delay or deficiency on the N/A
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 of Legal offer filed
the Insurance Company .
18. Date of the Award 31.01.2022
19. Whether the award was passed with the consent of No
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 directed to 28.03.2019
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 On 18.03.2021, the
passbook of their saving bank account near the petitioner number 2
place of their residence along with the produced her required
endorsement, PAN Card and Aadhar Card? documents.
The petitioner No. 3
and the LRs of
petitioner No.1 have
not produced any
documents till date.
23. Permanent Residential Address of the Claimant(s) As mentioned above
24. Details of saving bank account(s) of the claimant(s) Petitioners Smt.
and the address of the bank with IFSC Code Sarabjit Kaur, saving
bank a/c No.
37576905364 with
SBI, Meera Bagh
Branch, Delhi
IFSC : SBIN0009112
25. Whether the claimant(s) saving bank account(s) is Yes
near his place of residence?
26. Whether the claimant(s) were examined at the time Yes
of passing of the award to ascertain his/their
financial condition.
27. Account number/CIF No, MICR number, IFSC 86143654123,
Code, name and branch of the bank of the Claims 110002427,
Tribunal in which the award amount is to be SBIN0010323, SBI,
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deposited/transferred. (in terms of order dated Rohini Courts, Delhi
18.01.2018 of Hon'ble Delhi High Court in FAO
842/2003 Rajesh Tyagi vs Jaibir Singh.
JUDGMENT
1. The present claim proceedings have emanated from a Detailed Accident Report (hereinafter referred to as DAR) filed on 09.12.2016 with reference to FIR No.753/16 registered for the commission of offences of causing hurt to himself (Zorawar Singh) and death of victim Baljeet Singh not amounting to culpable homicide by rash and negligent driving of a motor vehicle on a public road punishable U/s 279/337/304A of Indian Penal Code 1860 (hereinafter referred to as IPC) at PS Mangol Puri wherein subsequent charge sheet for the alleged commission of offences punishable u/s 279/304A IPC against one Zorawar Singh (hereinafter referred to as respondent No.1/R1) was also filed in respect of death of one Sh. Baljeet Singh (hereinafter referred to as the deceased/ the victim). The learned Predecessor Court had vide order dated 09.12.2016 treated the DAR as petition u/s 166(4) of the Motor Vehicles Act, 1988 (in short referred to as 'M.V. Act').
2. The brief facts of the case as discernible from the DAR and the documents of the Legal Heirs of the deceased (hereinafter referred to as the petitioners/ claimants or the LRs of the deceased) are that on 17.07.2016, the victim along with his friend/R1 was going to Pitampura on one motorcycle make Honda bearing registration No.DL4SCJ0974 (hereinafter referred to as the offending vehicle) and was sitting as a pillion rider on the said motorcycle being driven by R1 at a very high speed and in a rash and negligent manner in violation of the traffic rules and without blowing any horn and at about 9:45 pm, upon reaching opposite MCD Office, Mangol Puri on Ring Road, Delhi, the offending vehicle had hit against a truck/dumper/trolla bearing registration No. RJ52GA1114 from behind which was being signaled to be parked towards left side of the road by three officials of Delhi Traffic police, namely, SI Baldev Singh, Ct. Dinesh and Ct. Nikhil. It is further the LR's of Baljeet Singh Vs. Zorawar Singh & Ors Page 4 of 36 LR's of Baljeet Singh Vs. Zorawar Singh & Ors Page 5 of 36 case of the LRs of the deceased that the speed of the offending motorcycle was such that it had hit against the slowly moving truck with a great force and due to the impact of collision with the slowly moving truck, the said motorcycle got struck beneath the body of the truck and thereby fatal injuries had been sustained by victim Baljeet Singh who was immediately taken to Jaipur Golden Hospital where he was medically examined and declared "brought dead" vide MLC No.13391/16.
2.1 The postmortem on the body of the deceased was conducted by Dr. Munish Wadhawan, Specialist, Forensic Medicine, Sanjay Gandhi Memorial Hospital(hereinafter referred to as SGMH), Mangol Puri, Delhi vide Postmortem Report (PMR) No.691/2016 dated 18.07.2016, wherein the cause of death had been opined as hemorrhagic shock as a result of lung injury due to blunt force impact and it had been further opined that all the injuries detected on the body of the deceased were antemortem in nature and could have possibly been caused in a road traffic accident as alleged.
3. R1/Zorawar Singh S/o Mohinder Singh, who was the drivercumowner of the offending vehicle had not filed his written statement despite sufficient time being granted to him for filing of the same and upon lapse of the statutory period fixed for filing of written statement, the defence of R1 was struck off vide order dated 18.01.2018. Subsequently, R1 had also failed to appear in Court on several dates of hearing and was eventually proceeded exparte vide order dated 09.01.2020.
4. National Insurance Company Ltd.(hereinafter referred to as respondent no. 2/R2) had filed its written statement wherein, it had been admitted that the offending vehicle was duly insured through it (R2) vide policy no.361801/31/15/6200011455 having validity period commencing from 23.12.2015 and expiring on the midnight of 22.12.2016 for vehicle bearing registration No. DL4SCJ0974 (motorcycle), issued in the name of R1 and the liability of R2 was limited subject to the terms and conditions of the said policy. Thus, it has been admitted by the respondent No.2 that the insurance policy of the offending vehicle was live and valid as on the date of occurrence of the alleged accident. However, it had been claimed in the defence of R2 that it was not liable to pay any compensation to the LRs of the deceased LR's of Baljeet Singh Vs. Zorawar Singh & Ors Page 5 of 36 LR's of Baljeet Singh Vs. Zorawar Singh & Ors Page 6 of 36 because the present case was shrouded with mystery due to shoddy investigation conducted by the IO whereby one of the victim, namely, Zorawar Singh had been arrayed as an accused or as the driver of the offending vehicle in the case accident in lieu of the real culprits, namely, one Sunil who was the driver of the actual offending vehicle, that is, a Cluster Bus bearing part registration No.0701 as well as the driver of a truck bearing registration number RJ52GA1114, who were jointly responsible for causing the alleged accident by their composite negligence. In this context, it has been further claimed in the written statement of R2 that R1 had categorically stated to police officials that one cluster bus bearing part registration No.0701 had hit against his motorcycle from behind due to which the said motorcycle had struck against the truck bearing registration No. RJ52GA1114. It had been further alleged in the written statement of R2 that a perusal of the chargesheet prima facie revealed that the above mentioned truck was in the no entry zone and was going to be challaned by the police official at the time of accident and for the purpose of being challaned upon receipt of signal by the police officials, the driver of the said truck had halted the same on the right side of the road without giving any indication and thus, the said truck had been negligently parked by its driver on wrong side of the road without giving any indication and only on being directed by the police officials, the driver of the said truck had moved it from right side to the left side of the road. Thus, it had been claimed in defence of R2 that the investigating officer had failed to implead the driver of the truck bearing registration No.RJ52GA1114 as the driver of the offending vehicle despite the fact that he had negligently parked his truck on the wrong side of the road on which there was no entry for the said truck at the relevant time. Besides, it had been further claimed in defence of R2 that the driver of Cluster bus had also not been impleaded as one of the accused persons despite the fact that he had hit against the motorcycle in question from behind and had thereby contributed to the occurrence of the case accident. It had been further claimed in the written statement of R2 that a copy of site plan had not been supplied to R2 by the IO along with the DAR and thus, R2 had suffered a prejudice in preparing its defence. R2 had further sought permission u/s 170 of Motor Vehicle Act to contest the case on all grounds available to the LR's of Baljeet Singh Vs. Zorawar Singh & Ors Page 6 of 36 LR's of Baljeet Singh Vs. Zorawar Singh & Ors Page 7 of 36 alleged driver and owner of the offending vehicle as per the provision of Chapter 5(11)(4) of the Claims Tribunal Agreed Procedure without prejudice to section 149(2) of Motor Vehicle Act, in case, the driver and the owner of the offending vehicle bearing registration No. DL4SCJ0974 (motorcycle) would fail to contest the claim or were found to be in collusion with the claimants.
5. From the pleadings of the parties, the following issues were framed by the Ld. Predecessor Court vide order dated 18.01.2018: (1) Whether Baljeet Singh, a pillion rider, died due to rash and negligent driving of motorcycle bearing registration No. DL4SCJ0974, bearing driven by Zorawar Singh on 17.07.2016, at about 9:45 pm, in front of MCD Office, Outer Ring Road, Mangol Puri, Delhi while Zorawar Singh/R1 hit the said motorcycle at the back side of Trolla bearing registration No. RJ52GA1114? OPP (2) Whether petitioners are entitled to compensation, if so, to what amount and from whom? OPP (3) Relief.
6. After the framing of issues, opportunities were given to all the parties to prove their respective versions of the case by leading evidence in support of the same. The petitioners/ LRs of the deceased had examined three witnesses in support of their case. Smt. Sarabjeet Kaur, mother of the deceased had been examined as PW1. Sh. Kushal Singh, Supervisor, Purushotam Profiles Pvt. Ltd. Optimising Structural Solutions, City Tower, 2 nd Floor, NSP, Pitampura, Delhi34 had been examined as PW2 whereas eye witness SI Baldev Singh had been examined as PW3 by the petitioners. No other witness had been examined by the petitioners/the LRs of deceased.
7. A perusal of court record reveals that all three respondents had not examined any witness in support of their version of the case.
8. I have heard the final arguments addressed by Sh. Pradeep Sharma, learned counsel for the petitioners and Sh. S.K. Tyagi, learned counsel for the respondent LR's of Baljeet Singh Vs. Zorawar Singh & Ors Page 7 of 36 LR's of Baljeet Singh Vs. Zorawar Singh & Ors Page 8 of 36 no.2. My issuewise findings based on my appreciation of the evidence led by the parties in support of their respective versions of the case are reproduced herein below.
9. Issue wise findings are as under: ISSUES No. 1 (1) Whether Baljeet Singh, a pillion rider, died due to rash and negligent driving of motorcycle bearing registration No. DL4SCJ0974, bearing driven by Zorawar Singh on 17.07.2016, at about 9:45 pm, in front of MCD Office, Outer Ring Road, Mangol Puri, Delhi while Zorawar Singh/R1 hit the said motorcycle at the back side of Trolla bearing registration No. RJ52GA1114? OPP The onus of proving this issue beyond preponderance of probabilities was upon the petitioners/ claimants.
9.1 The petitioners/claimants have examined three witnesses in support of their version of the case. Mother of the deceased, namely, Smt. Sarabjeet Kaur had been examined as PW1, Sh. Kushal Singh, Supervisor, Purushotam Profiles Pvt. Ltd. Optimising Structural Solutions, City Tower, 2 nd Floor, NSP, Pitampura, Delhi34 had been examined as PW2, whereas eye witness SI Baldev Singh had been examined as PW3 by the petitioners.
9.2 PW1 Smt. Sarabjeet Kaur had deposed by way of affidavit Ex.PW1/A wherein she had reiterated the facts narrated in the DAR. She had claimed in her evidence by way of affidavit that her son Baljeet Singh was aged about 30 years at the time of occurrence of the case accident and was gainfully employed as an Operation Executive at Purushotam Profiles Private Ltd. situated at Netaji Subhash Place, Pitampura, Delhi on a monthly salary of Rs.20,000/. She had further stated in her evidence by way of affidavit that the widow of deceased Baljeet Singh had left her matrimonial home and had remarried after the demise of Baljeet Singh. PW1 had further stated that she was the sole surviving legal heir of deceased Baljeet Singh as her husband Sh. Pritam Singh had also passed away during the pendency LR's of Baljeet Singh Vs. Zorawar Singh & Ors Page 8 of 36 LR's of Baljeet Singh Vs. Zorawar Singh & Ors Page 9 of 36 of the present case. She had relied upon the following documents in support of the case of the petitioners.
a. Photocopy of Aadhar Card slip of the deceased Ex.PW1/1.
b. Photocopy of her Aadhar Card Ex.PW1/2.
c. Photocopies of educational qualification of the deceased Ex.PW1/3
(colly).
d. Photocopy of passport of the deceased Ex.PW1/4.
e. Photographs of remarriage of wife of deceased Ex.PW1/5 (colly).
f. Death certificate of the deceased Ex.PW1/6.
g. Copy of salary certificate of the deceased Mark 'Y'.
h. DAR filed by the IO Ex.PW1/7 (colly).
9.3 In her crossexamination by Sh. S.K. Tyagi, learned counsel for the insurance
co./R2, PW1 had admitted that she was a house wife and was not an eye witness of the case accident. She deposed that her husband, namely, Sh. Pritam Singh had expired on 31.05.2018 and during his life time, her husband used to occasionally do some work but was not having any regular income. She stated that she had two children apart from her deceased son Baljeet Singh. She deposed that her daughter was married and was living with her husband and her youngest son was 24 years of age but was unemployed. She stated that her deceased son was educated upto 12th standard and his date of birth was 20.10.1986. She deposed that after the death of her son, his wife had left her matrimonial home and had remarried and no child was born out of the wedlock of her son Baljeet Singh with his wife Ms.Harpreet Kaur. She denied the suggestion that her deceased son was not employed or that he was not earning Rs. 20,000/ as monthly salary. She further denied the suggestion that she had not spent Rs.50,000/ on the last rites and transportation of her deceased son. She also denied the suggestion that the case accident had occurred due to composite negligence of cluster bus and truck bearing No. RJ52GA0004. She was not crossexamined on behalf of R1 as none had LR's of Baljeet Singh Vs. Zorawar Singh & Ors Page 9 of 36 LR's of Baljeet Singh Vs. Zorawar Singh & Ors Page 10 of 36 appeared on behalf of R1 to cross examine PW1 and the crossexamination of PW1 was treated as "Nil. Opportunity given" on behalf of R1.
9.4 PW2 Sh. Kushal Singh, Supervisor, Purushotam Profiles Pvt. Ltd., Optimising Structural Solutions, City Tower, 2 nd Floor, NSP, Pitampura, Delhi34 was a summoned witness and had deposed that deceased Baljeet Singh was working with their company since April, 2015 as an Operations Executive on a monthly salary of Rs.20,000/. He had proved letter dated 15.07.2019 issued by the Director of his company for the purpose of authorizing him to depose in the present matter as Ex.PW2/1 and the appointment letter as well as Form16 of deceased Baljeet Singh as Ex.PW2/2(colly). He had also proved the attendance voucher of his company with effect from April, 2015 to July, 2017 reflecting the presence on duty of deceased Baljeet Singh as Ex.PW2/3 (colly).
9.5 In his crossexamination by Sh. S.K. Pandey and Sh. S.K. Tyagi, learned counsels for the insurance co./R2, PW2 had deposed that there were around 125 employees working in their company. He deposed that Biometric system had been adopted by their company for recording attendance of the employees. However, he was not in possession of the compact disc in which the attendance of employees was being maintained. He further deposed that no resolution had been passed by the Board of Directors of his company for the purpose of authorising him to depose before this Court. He denied the suggestion that he was not an authorised person or that the authorisation letter produced by him was a forged one. He further deposed that different directors were incharge of different departments in his company and they used to sign appointment letters of their respective departments. He expressed his inability to tell anything about the department in which deceased Baljeet Singh was working. He, however, clarified that the appointment letter of the deceased was signed by Sh. Sunil Kumar, one of the Directors of his company. He expressed his inability to affirm or deny as to whether employees of his company were covered under the PF and ESI rules or not. He, however, clarified that he was aware of the fact that when there were more than 10 persons employed in a company, then, the company concerned has to get itself registered under PF and LR's of Baljeet Singh Vs. Zorawar Singh & Ors Page 10 of 36 LR's of Baljeet Singh Vs. Zorawar Singh & Ors Page 11 of 36 ESI Act. He deposed that he had not brought any record of PF and ESI deduction of deceased Baljeet Singh and he was not aware of the fact as to whether any record of PF and ESI contributions was being maintained in respect of deceased Baljeet Singh by his company or not. He further deposed that at the time when the deceased was working with their company, the said company used to pay salary in cash to its employees. He clarified that their company used to pay salaries through cheques to certain employees whose monthly emoluments exceeded Rs.20,000/. He stated that he had not brought any record of cash and bank registers maintained by his company. He deposed that he had not brought any record to prove the payment of salary of deceased Baljeet Singh for any month. He further deposed that he had not brought any receipt of cash payment of salary made to Baljeet Singh. He denied the suggestion that deceased Baljeet Singh was not an employee of their company or that no salary had been paid to him. He deposed that he had not brought any leave record of the deceased. He further deposed that their company used to maintain leave record. He, however, expressed his inability to tell as to whether there was any leave lying credit into the account of deceased Baljeet Singh. He denied the suggestion that Form16 filed by him in respect of salary of the deceased was false and fabricated. He admitted that he had not brought any record through which computation of salary was being made. He was not cross examined on behalf of R1 as none had appeared on behalf of R1 to cross examine PW2 and the crossexamination of PW2 was treated as "Nil. Opportunity given" on behalf of R1.
9.6 Eye witness SI Baldev Singh was examined as PW3. He deposed that on 17.07.2016, he along with Constable Dinesh Kumar and Constable Nikhil Kumar was present in front of MCD Office at BBlock, Mangol Puri, Delhi where at about 9:45 pm, he had noticed that one traula bearing registration No. RJ1114 was coming from the side of Peera Garhi despite the fact that it was no entry for the traula on the road in question at the relevant time and accordingly, they had stopped the traula and had got the same parked towards the extreme left side of the road for no entry challan. He further deposed that in the meanwhile, one motorcycle bearing LR's of Baljeet Singh Vs. Zorawar Singh & Ors Page 11 of 36 LR's of Baljeet Singh Vs. Zorawar Singh & Ors Page 12 of 36 registration No. DL4SCJ0974 on which two persons were travelling, had come at a high speed from Peera Garhi side and had hit against the back side of the above said traula. He further deposed that both the riders of the motorcycle were not wearing helmets at the time of accident. He stated that the motorcycle along with both the riders had come beneath the traula after the accident. He deposed that both the motorcyclists had sustained injuries and were shifted to Jaipur Golden Hospital by them. He further deposed that the case accident had occurred due to rash and negligent driving of the motorcyclist.
9.7 In his crossexamination by Sh. S.K. Tyagi, learned counsel for R2, PW3 deposed that he had seen the accident. He denied the suggestion that there were three vehicles involved in the case accident including a cluster bus bearing registration No.0701. He deposed that he had no knowledge about the fact as to whether any FIR had been lodged by Zorawar Singh, that is, the driver of the motorcycle. He admitted that the traula had been made to move from right side to the left side of the road when the motorcycle had struck against the said traula. He denied the suggestion that a cluster bus bearing registration No.0701 had first struck against the motorcycle and thereafter, the motorcycle had struck against the traula. He further denied the suggestion that the motorcyclist was driving his vehicle at a proper speed at the time of accident or that he was not rash and negligent. He also denied the suggestion that there was no fault of motorcyclist in occurrence of the case accident. He stated that his statement was recorded by IO SI Laxmi Chand. He denied the suggestion that he had given wrong statement to the IO regarding the rash and negligent driving of his vehicle by the motorcyclist. He was not crossexamined on behalf of R1 as none had appeared on behalf of R1 to cross examine PW3 and the crossexamination of PW3 was treated as "Nil. Opportunity given" on behalf of R1.
9.8 The respondent No.1 was exparte and both the respondents had not availed the opportunity to examine any witness in support of their versions of the case.
9.9 No contradictions or material discrepancies have appeared in the cross examination of PW3 to discredit his above said testimony which were capable of LR's of Baljeet Singh Vs. Zorawar Singh & Ors Page 12 of 36 LR's of Baljeet Singh Vs. Zorawar Singh & Ors Page 13 of 36 demolishing the case of the petitioners to the effect that the case accident had occurred due to rash and negligent driving of the offending vehicle by R1 and the death of victim Baljeet Singh had occasioned therefrom. The testimony of PW3 is reliable and he is a trustworthy witness whose deposition has remained infallible during his lengthy crossexamination by the respondents. The circumstances in which the accident had occurred establish that it had occurred solely due to the rash and negligent driving of R1 at the above said date, time and place who had hit his vehicle against a traula/truck from behind, thereby causing fatal injuries on the person of victim Baljeet Singh.
9.10 In the facts and circumstances of the case, the charge sheet filed in FIR No.753/16 for the commission of offences punishable U/s 279/304A IPC of PS Mangol Puri against R1 in the Criminal Court can also be relied upon by this Court for the purpose of corroboration of other evidence led by the petitioners in support of their version of the case and can thus lead this Court to a finding to the effect that the case accident had occurred due to rash and negligent driving of the offending vehicle by R1. The copy of seizure memo of said offending motorcycle is also on record as part of the said chargesheet. The mechanical inspection report of the offending motorcycle bearing registration no. DL4SCJ0974 is also on record showing damages sustained by the body of the motorcycle on its front side including damages to front indicator lights, front side wheel, mudguard which was broken and damages to both shockers which had become bent as well as damage to the left side handle of the motorcycle along with front side wiring. Besides, as per the mechanical inspection report of the offending motorcycle, its right side handle portion was also found bent and thereby damages including scratches were present on the right side body and front left side fender. Moreover, the rear side number plate and the ignition key of the motorcycle in question were found missing during its mechanical inspection. Thus, the mechanical inspection report of the offending vehicle prima facie establishes that the front side of the offending motorcycle had sustained damages after it had hit against the back side of the parked truck.
LR's of Baljeet Singh Vs. Zorawar Singh & Ors Page 13 of 36 LR's of Baljeet Singh Vs. Zorawar Singh & Ors Page 14 of 369.11 The postmortem on the body of the deceased was conducted by Dr. Munish Wadhawan, Specialist, Forensic Medicine, SGM Hospital, Mangol Puri, Delhi vide Postmortem Report (PMR) No.691/2016 dated 18.07.2016, wherein the cause of death had been opined as hemorrhagic shock sustained as a result of lung injury due to blunt force impact and it had been further opined that all the injuries detected on the body of the deceased were antemortem in nature and could have possibly been caused in a road traffic accident as alleged.
9.12 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, criminal case record including charge sheet and testimony of PW3, it has been proved beyond preponderance of probabilities that the case accident had been caused by R1 who was driving the offending vehicle in a rash and negligent manner at the above said date, time and place and had hit the same against a traula/truck from behind thereby causing the death of victim Baljeet Singh.
Issue no.1 is accordingly decided in favour of petitioners and against the respondents.
10. Issue No. (2) Whether petitioners are entitled to compensation, if so, to what amount and from whom? OPP 10.1 In view of my findings on issue no.1 regarding negligence of R1 resulting in the occurrence of the case accident, I am of the considered opinion that the petitioners/claimants are entitled to compensation in respect of demise of the victim Baljeet Singh in the above mentioned road traffic accident, I shall now examine the entire evidence including the documents of the petitioners/claimants for the purpose of arriving at a finding about the quantum of compensation to which the petitioners/claimants are entitled.
10.2 Petitioners have examined three witnesses in support of their version of the case including PW1 Sarabjeet Kaur who was the mother of the deceased and had made deposition regarding the income of the deceased at the time of his demise as LR's of Baljeet Singh Vs. Zorawar Singh & Ors Page 14 of 36 LR's of Baljeet Singh Vs. Zorawar Singh & Ors Page 15 of 36 well as regarding the contribution of the deceased to the household expenses of his family. She has also categorically stated in her evidence by way of affidavit Ex.PW1/A that the case accident had occurred due to rash and negligent driving of the offending motorcycle by R1 and as a consequence of the same, her son Baljeet Singh had sustained grievous injuries all over his body and was declared "brought dead" by the treating doctors at Jaipur Golden Hospital, Rohini who had medically examined him vide MLC No.13391/2016. She had also deposed that the postmortem on the body of her deceased son had been conducted at SGM Hospital, Mangol Puri vide postmortem report No.691/16 which has duly established that the most immediate and proximate cause of the death of her son were the injuries sustained in the case accident. Moreover, by examining eye witness PW3 SI Baldev Singh, it has been proved by the petitioners that the accident in question had occurred due to rash and negligent driving of the offending motorcycle by R1 as PW3 SI Baldev Singh had fully supported the deposition of PW1 Sarabjeet Kaur regarding negligence of R1.
10.3 PW1 Sarabjeet Kaur had withstood her crossexamination by the learned counsels for the respondent No.2 and had reaffirmed during her crossexamination that her son was earning about Rs.20,000/ per month and out of the said amount her deceased son was also contributing towards their monthly household expenses.
10.4 The Matriculation Certificate of the deceased issued by Central Board of Secondary Education, Delhi Ex. PW1/3 prima facie establishes that his date of birth was 20.10.1986 and as per DAR, the date of the case accident is 17.07.2016. Therefore, the deceased was about 29 years 8 months and 27 days old at the time of the occurrence of the accident in question. From a perusal of the Court record, it is evident that the petitioners had led sufficient evidence to establish the nature of employment and income of the deceased. By examining PW2 Sh. Kushal Singh, Supervisor, Purushotam Profiles Pvt. Ltd., a representative of the employer of deceased Baljeet Singh, the nature of job of the deceased, his salary and his attendance record have been duly proved in this context. PW2 Sh. Kushal Singh had proved appointment letter and Form16 of deceased Baljeet Singh for the LR's of Baljeet Singh Vs. Zorawar Singh & Ors Page 15 of 36 LR's of Baljeet Singh Vs. Zorawar Singh & Ors Page 16 of 36 purpose of proving his income. In this respect, it is pertinent to mention that in the appointment letter of the deceased, his emoluments on cost to company basis had been mentioned as Rs.20,000/ per month. Besides, in the form16 of the deceased, the annual income of the deceased had been mentioned as Rs.2,36,667/ and by dividing the said amount by 12, monthly salary of the deceased can be calculated to be Rs.19,722.25/ which can be safely rounded of to approximately Rs.20,000/ per month.
10.5 Accordingly, the income of the deceased is assessed as per the appointment letter and form16 of the deceased Ex.PW2/2 produced by the representative of his employer, namely, PW2 Kushal Singh is computed to be Rs.20,000/ per month.
11 Addition of future prospects If addition in income towards future prospects is to be made 11.1 In this regard, reference should be made to the Constitutional Bench Judgment of Hon'ble Supreme Court of India in case of National Insurance Company Limited vs. Pranay Sethi and Ors, SLP (Civil) No. 25590 of 2014 decided on 31.10.2017.
11.2 In the said judgment of Pranay Sethi (Supra), the Hon'ble Apex Court inter alia held as under:
61. In view of the aforesaid analysis, we proceed to record our conclusions:
(i).........................................................................................
(ii) .....................................................................................
(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.
LR's of Baljeet Singh Vs. Zorawar Singh & Ors Page 16 of 36 LR's of Baljeet Singh Vs. Zorawar Singh & Ors Page 17 of 36(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 Sarla Verma which we have reproduced hereinbefore.
(vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma 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) 11.3 In the case in hand, the deceased was selfemployed and in terms of above said judgment, while determining his income for computing compensation, future prospects have to be added to fall within the ambit and sweep of just compensation under Section 168 of M.V. Act.
11.4 In the present case, as discussed above, the deceased was aged about 29 years 8 months and 27 days at the time of his death. In view of paragraph no. 61 (iv) of above said judgment in Pranay Sethi (Supra), the deceased would be entitled to addition of 40% as future prospects to his established income as he was above the age of 20 years but less than 40 years of age at the time of his death.LR's of Baljeet Singh Vs. Zorawar Singh & Ors Page 17 of 36 LR's of Baljeet Singh Vs. Zorawar Singh & Ors Page 18 of 36
11.5 The monthly income of the deceased is thus calculated as Rs.28,000/ (monthly income of 20,000+40% of monthly income i.e Rs.8,000/ = Rs. 28,000/).
12. Deduction towards personal and living expenses of the deceased:
12.1 At the time of his demise, victim Baljeet Singh was survived by three legal heir including his wife, mother and father. However, during the pendency of the present claim petition, father of the deceased, namely, Sh. Pritam Singh had expired on 31.05.2018 and his wife Smt. Harpreet Kaur had left her matrimonial home and had got remarried on 26.07.2018. However, the LRs of Sh. Pritam Singh, father of the deceased have not yet been taken on record and the widow of deceased, namely, Harpreet Kaur has not given any specific no objection to grant of her share in the compensation amount, if any, awarded by this Court to the other two legal heirs of the deceased. In other words, despite having remarried, the widow of Baljeet Singh has not relinquished her share in the compensation likely to be awarded by this Court in favour of the parents of the deceased. In such circumstances, this Tribunal shall have to compute the quantum of compensation by assuming that the deceased was survived by three legal heirs including father Sh.
Pritam Singh(now deceased), Smt. Sarabjeet Kaur(surviving mother) and Ms. Harpreet Kaur(widow who has remarried).
12.2 PW1/mother of the deceased deposed in her crossexamination that her husband was occasionally engaged in gainful employment and had no fixed source of income during his life time. She had also deposed that on the date of recording of her deposition, that is, on 28.03.2019, she was aged about 50 years. Besides, no suggestion has been given to PW1 Sarabjeet Kaur that she was gainfully employed in any manner at the time of demise of her son. Thus, the testimony of PW1 establishes that one of the claimants, that is, father of the deceased was occasionally gainfully employed but had no regular source of income. She has even not disclosed his approximate occasional income. In such circumstances, all three legal heirs of the deceased would be considered to be dependent on the deceased LR's of Baljeet Singh Vs. Zorawar Singh & Ors Page 18 of 36 LR's of Baljeet Singh Vs. Zorawar Singh & Ors Page 19 of 36 for the purpose of livelihood and basic needs as neither the parents nor the widow of the deceased were gainfully employed at the time of his demise.
12.3 The learned counsel for R2 has opposed the claim of the petitioners on the ground that the father of the deceased was gainfully employed at the time of demise of the victim due to the case accident and therefore, both the parents of the deceased were not financially dependent upon the deceased as on the date of occurrence of the case accident because it was the duty of father of the deceased to provide maintenance to his wife, that is, to the mother of the deceased. It has been argued on behalf of R2/insurance co. that the mother of the deceased would be entitled to compensation in respect of loss to the estate of the deceased as his legal representatives and the quantum of such compensation should not be less than the liability flowing from Section 140 MV Act. Learned counsel for R2/insurance co. has thus argued that the mother of the deceased shall be entitled to compensation only to the extent of Rs.50,000/ as provided in Section 140 MV Act.
12.4 The Learned counsel for claimants/petitioners has, on the other hand, argued that as on the date of occurrence of the case accident, the deceased was not only survived by his parents but was also survived by his wife who was financially dependent on the deceased. Learned counsel for the petitioners has further argued that even otherwise, the father of the deceased had no fixed source of income and therefore, he was also financially dependent upon the deceased during his life time. In this context, learned counsel for the petitioner has relied upon the judgment of Hon'ble Apex Court passed in the case of National Insurance Company Ltd. vs. Birender, Civil Appeal No.242243 of 2020, date of judgment 13.01.2020 wherein the Hon'ble Apex Court had granted compensation to the major sons of the deceased on the basis of loss of dependency with 9% interest from the date of filing of the claim petition till payment.
12.5 I have considered the rival submissions of the parties in the light of in the law of precedents and the facts of the present case. In the case of Sarla Verma Vs. DTC (2009)6 SCC 121, the Hon'ble Apex Court had observed that when a bachelor expires in a road traffic accident, his mother would be entitled to compensation LR's of Baljeet Singh Vs. Zorawar Singh & Ors Page 19 of 36 LR's of Baljeet Singh Vs. Zorawar Singh & Ors Page 20 of 36 regarding loss of dependency even if the father of the deceased bachelor was gainfully employed as on the date of occurrence of the alleged accident and it shall be presumed that the bachelor would spent 50% of his income on his personal needs and would contribute the remaining 50% to his mother and her household needs. The relevant extract of the observations made by the Hon'ble Apex Court in para 15 of the judgment is noteworthy in this context and is reproduced hereunder:
15. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent/s and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependent and the mother alone will be considered as a dependent. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependents, because they will either be independent and earning, or married, or be dependent on the father. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependent, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where family of the bachelor is large and dependent on the income of the deceased, as in a case where he has a widowed mother and large number of younger nonearning sisters or brothers, his personal and living expenses may be restricted to onethird and contribution to the family will be taken as twothird.
12.6 It has been similarly held by the Hon'ble High Court of Delhi in the case of Indrawati & Anr. Vs. Ranbir Singh & Ors. MAC. APP No.623/2019 decided on 08.01.2021 that the parents of a deceased/victim of road traffic accident must be considered as dependents on their deceased son even if the parents were not actually dependent on the deceased child at the time of occurrence of the accident in question because after reaching a certain age, the parents of the deceased victim of road traffic accident were likely to become financially dependent upon their child due to their old age and loss of earning capacity. Observations made in paras 12, LR's of Baljeet Singh Vs. Zorawar Singh & Ors Page 20 of 36 LR's of Baljeet Singh Vs. Zorawar Singh & Ors Page 21 of 36 20 and 23 of the judgment are noteworthy in this context and are reproduced below:
12. This Court is of the view that the parents of the deceased are considered in law as dependent on their children, considering that the children are bound to support their parents in their old age, when the parents would be unable to maintain themselves and the law imposes a responsibility on the children to maintain their parents. Even if the parents are not dependent on their children at the time of the accident, they will certainly be dependent, both financially and emotionally, upon their children at the later stage of their life, as the children were dependent upon their parents in their initial years. It would therefore be unfair as well as inequitable to deny compensation for loss of dependency to a parent, who may not be dependent on his/her child at the time of accident per se but would become dependent at his/her later age.
20. In view of the law well settled by the Supreme Court in the aforesaid judgments, this Court holds that the parents of the deceased child are considered as dependents for computation of compensation. The principles laid down in Keith Rowe (supra) and Dinesh Adhlak v. Pritam Singh, ILR (2010) 5 Del 463, would not apply to the claim for compensation by the parents in respect of their child, as it is in the present case. The principles relating to the loss to the estate referred to in Keith Rowe (supra) and Dinesh Adhlak (supra) would also not apply in respect of the claim of a spouse for compensation in respect of death of his/her spouse, as well as children's claim for compensation in respect of death of their parents. In that view of the matter, the principles relating to the loss to the estate shall apply only to claimants other than parents, children and spouse.
23. Taking the income of the deceased as Rs.4,131/ per month, adding 40% towards future prospects, deducting 50% towards personal expenses and applying the multiplier of 18, the loss of dependency is computed as Rs.6,24,607.20. The Claims Tribunal has awarded Rs.40,000/ towards loss of love and affection and Rs.
15,000/ towards funeral expenses which is upheld. The total compensation is computed as Rs.6,80,000/ (Rs.6,79,607.20 rounded off) .
LR's of Baljeet Singh Vs. Zorawar Singh & Ors Page 21 of 36 LR's of Baljeet Singh Vs. Zorawar Singh & Ors Page 22 of 3612.7 Applying the ratio of above cited observations made by Hon'ble Apex Court in the case of Sarla Verma (Supra) and the Hon'ble High Court of Delhi in Indrawati and Anr. (Supra), it can be safely concluded that even if the father of the deceased/victim of the road traffic accident was gainfully employed occasionally at the time of demise of the victim, however, in advanced stage of their life, the parents of the deceased were likely to become financially as well as emotionally dependent upon the deceased and therefore the parents of the deceased are also entitled to claim compensation as dependents upon the deceased under Motor Vehicles Act. In the present case as well, the parents of the deceased shall be considered as dependent upon the deceased despite the fact that the father of the deceased was occasionally gainfully employed at the time of demise of victim Baljeet Singh due to the case accident.
12.8 In respect of issue of the deduction towards personal and living expenses of the deceased, it is noteworthy that at the time of filing of the DAR, the deceased was survived by three legal heirs including his wife Ms. Harpreet Kaur, his father Sh. Pritam Singh and his mother Smt. Sarabjeet Kaur, and therefore, a 1/3 rd deduction in the established income of the deceased should be made as per the dictum of Hon'ble Apex Court in the case of Smt. Sarla Verma and Ors. vs. Delhi Transport Corporation and Anr., Civil Appeal No.3483 of 2008, date of judgment 15.04.2009 as upheld in the case of Pranay Sethi (supra) in view of the fact that if the deceased was alive, then, he would have to support three dependents, namely, his father, his mother and his wife and his wife would not have remarried if he had not died in the case accident. The demise of father of the deceased during pendency of the present claim proceedings would have no bearing upon the number of dependents of the deceased as well as the quantum of deduction in his established income towards his personal and living expenses. 12.9 The issue pertaining to share of a predeceased parent in the award amount and the determination of number of dependents in cases where one or more of the legal heirs of deceased happen to expire during the pendency of claim petition had come up for consideration before the Hon'ble High Court of Delhi in the case of LR's of Baljeet Singh Vs. Zorawar Singh & Ors Page 22 of 36 LR's of Baljeet Singh Vs. Zorawar Singh & Ors Page 23 of 36 Oriental Insurance Company Ltd. Vs. Lata Punjani, MAC Appeal No.355/2018 decided on 26.09.2019 where at the time of his demise in a road traffic accident, the victim was survived by five legal heirs and subsequently, the parents of the deceased had predeceased the award of compensation and only three legal heirs were surviving at the time of passing of the award. Therefore, Oriental Insurance Company Ltd. had contended before the Hon'ble High Court that the Tribunal had erroneously deducted 1/4th of the established income of the deceased towards personal expenses of the deceased whereas only three legal heirs of the deceased were surviving at the time of passing of the award a onethird of his income should have been deducted towards his personal and living expenses. The Hon'ble High Court of Delhi had dismissed the appeal of the insurance company and had categorically observed that since there were five dependents of the deceased at the time of filing of claim petition, therefore, their right to claim dependency had already been established and placed before the Tribunal at the time of institution of the claim proceedings and the factum of demise of parents of the deceased during pendency of the litigation would make no difference to the substance of the claim as well as the number of persons who had filed the claim. Observations made in para 2 of the judgment are noteworthy in this context and are reproduced herein below:
"2. The aforesaid argument is untenable for the reason that at the time of filing of the claim petition, there were five dependents and their right to claim dependency had already been placed before the learned Tribunal. Whatever is subsequently awarded to them would be a part of their estate to be shared by the surviving dependents and/or legal heirs. The predeceased parents would not make a difference to the substance of the claim or the number of persons who had filed the claim. Therefore, in view of the above, the said argument is rejected."
12.10 In the light of aforecited observations made by Hon'ble High Court of Delhi in the decided case of Oriental Insurance Company Ltd. Vs. Lata Punjani, it can be safely concluded that the number of dependents who had been arrayed as parties or petitioners at the time of filing of the claim petition would remain unaltered at the time of passing of award and mere fact that one or more of the legal heirs of the deceased had predeceased the passing of the award would have no impact upon LR's of Baljeet Singh Vs. Zorawar Singh & Ors Page 23 of 36 LR's of Baljeet Singh Vs. Zorawar Singh & Ors Page 24 of 36 the number of dependents to be taken into account at the time of passing of the award as well as on the deduction to be made in the established income of the deceased towards his personal and living expenses. Accordingly, this Tribunal is of the considered opinion that the fact that Sh. Pritam Singh, father of the deceased, who was a dependent of the deceased at the time of filing of DAR, had subsequently expired during pendency of the claim proceedings would have no impact on the number of dependents to be considered by this Tribunal for the purpose of computing deduction to be made towards personal and living expenses of the deceased at the time of passing of the award. Thus, the number of dependents of the deceased will have to be considered as three by this Court despite the fact that Sh. Pritam Singh has already expired because he was a surviving dependent of the deceased at the time of filing of DAR.
13. Selection of multiplier:
13.1 As discussed above, the age of the deceased was about 29 years, 8 months and 27 days at the time of his death. In view of paragraph no. 61(vii) of the judgment in the case of Pranay Sethi (Supra), the age of deceased should be the basis for applying the multiplier. Accordingly, the relevant multiplier would be "17" as per judgment in case of Sarla Verma (Supra) which has been upheld in paragraph no. 61 (vi) in case of Pranay Sethi (Supra).
14. Loss of financial dependency In the light of aforesaid facts, loss of financial dependency of the petitioners comes to Rs.38,08,000/ [i.e. Rs.28,000/ (per month income of the deceased inclusive of future prospects) X12 X17 (multiplier) X 2/3 rd (1/3rd deduction towards personal and living expenses of deceased)].
15. Compensation under nonpecuniary heads/conventional heads:
In view of the judgment of Constitution Bench of Hon'ble Apex Court in case of Pranay Sethi (Supra), as held in paragraph number 61 (viii) of the said judgment, the petitioners would be entitled to Rs. 15,000/ towards loss to the estate of the deceased and Rs. 15,000/ towards funeral expenses.LR's of Baljeet Singh Vs. Zorawar Singh & Ors Page 24 of 36 LR's of Baljeet Singh Vs. Zorawar Singh & Ors Page 25 of 36
16. Consortium {Spousal Consortium/Parental Consortium/Filial Consortium} The deceased was married and the petitioners/claimants are his parents as well as his wife. It is now a settled law in terms of Judgment of Hon'ble Supreme Court of India, in case of Magma General Insurance Co. Ltd vs Nanu Ram and Ors, Civil Appeal No. 9581 of 2018, 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 Uttrakhand Transport Corporation Vs. Jyoti Sardana, MAC.APP.920/2017, date of decision 03.04.2019 that the compensation under the head of consortium is required to be awarded to all the claimants to the tune of Rs.40,000/ each. In the present case, there were three surviving legal heirs of the deceased at the time of his marriage, including father Pritam Singh, mother Ms. Sarabjeet Kaur and wife of the deceased, namely, Ms.Harpreet Kaur and therefore, all the legal heirs of the deceased, that is, mother, father and wife of the deceased would be entitled to a sum of Rs.40,000/ each towards Parental/Filial Consortium and Spousal Consortium respectively. Accordingly, a sum of Rs.1,20,000/ (Rs. 40,000/ x 3) is being granted under the said head. My views in this regard are also substantiated by the latest judgments of Hon'ble Delhi High Court in cases titled as United India Ins. Co. Ltd. Vs Manorama Aggarawal and Ors., MAC.APP. 250/2015, decided on 09.01.2020 and Om Prakash and Ors vs Ved Prakash and Anr, MAC.APP 114/2019 date of decision 28.01.2020. My views are also fortified by the latest judgments of Hon'ble Supreme Court of India in cases titled as The New India Assurance Company Limited Vs. Smt. Somwati and Ors., Civil Appeal Nos. 30933099 of 2020, decided on 07.09.2020 and United India Insurance Company Ltd. Vs. Satinder Kaur alias Satvinder Kaur and Ors., (2020) SCC Online 410.
17. LOSS OF LOVE AND AFFECTION 17.1 The Hon'ble Supreme Court of India in the latest case of The New India Assurance Company Limited Vs. Smt. Somwati and Ors., Civil Appeal LR's of Baljeet Singh Vs. Zorawar Singh & Ors Page 25 of 36 LR's of Baljeet Singh Vs. Zorawar Singh & Ors Page 26 of 36 Nos. 30933099 of 2020, decided on 07.09.2020 after referring to its another decision of threejudge bench in case titled as United India Insurance Company Ltd. Vs. Satinder Kaur alias Satvinder Kaur and Ors., (2020) SCC Online 410 inter alia held as follows :
"34. The ThreeJudge Bench in the above case approved the comprehensive interpretation given to the expression 'consortium' to include spousal consortium, parental consortium as well as filial consortium. Three Judge Bench however further laid down that 'loss of love and affection' is comprehended in 'loss of consortium', hence, there is no justification to award compensation towards 'loss of love and affection' as a separate head.
35. The Constitution Bench in Pranay Sethi has also not under conventional head included any compensation towards 'loss of love and affection' which have been now further reiterated by threeJudge Bench in United India Insurance Company Ltd. (supra). It is thus now authoritatively well settled that no compensation can be awarded under the head 'loss of love and affection'. ......................................................................................... ......................................................................................... .........................................................................................
47. In result, all the appeals are partly allowed. The award of compensation under the conventional head 'loss of love and affection' is set aside........................"
17.2 In view of the abovesaid discussion and the latest judgments of Hon'ble Supreme Court of India in the cases of The New India Assurance Company Limited Vs. Smt. Somwati and Ors., Civil Appeal Nos. 30933099 of 2020, decided on 07.09.2020 and United India Insurance Company Ltd. Vs. Satinder Kaur alias Satvinder Kaur and Ors., (2020) SCC Online 410, no amount of compensation can be awarded under the said head of 'loss of love and affection'. Hence, no amount is being granted under the said head.
18. Petitioners/claimants are accordingly entitled to compensation computed as under:
Loss of financial dependency Rs.38,08,000/ Loss of Estate Rs.15,000/ LR's of Baljeet Singh Vs. Zorawar Singh & Ors Page 26 of 36 LR's of Baljeet Singh Vs. Zorawar Singh & Ors Page 27 of 36 Funeral Expenses Rs.15,000/ Loss of Consortium Rs.1,20,000/ Loss of Love and Affection Nil. ______________ Total Rs.39,58,000/ ________________ [Rounded off to Rs. 39,58,000/] (Rupees Thirty Nine Lacs Fifty Eight Thousand only). 18.1 In respect of entitlement of the petitioner to interest on the awarded amount,
it is noteworthy that the Hon'ble Apex Court had in the case of Municipal Corporation of Delhi vs. Association of Victims of Uphaar Tragedy, 2012 ACJ 48 (SC) had observed that the victims of Uphaar Tragedy be awarded compensation with interest @ 9% per annum. The present matter is pending trial since 09.12.2016 and the rate of interest of fixed deposits in Nationalized banks has fluctuated/dropped several times during the pendency of the present proceedings. Therefore, in the interest of justice, in the present case, this court is of the opinion that the claimant/petitioner is entitled to interest at the prevailing bank rate of 6% per annum from the date of filing of DAR/petition, that is, with effect from 09.12.2016 till realisation of the compensation amount.
18.2 The amount of interim award, if any, shall however be deducted from the above amount, if the same has already been paid to the petitioner.
19. Liability 19.1 In the case in hand, the National Insurance Co./R3 has not been able to show anything on record to the effect that R1 who was the driver of the offending vehicle was not having any valid driving licence to drive the offending vehicle. 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 petitioner as per law.
19.2 Accordingly, in the case in hand, in terms of order dated 16.05.2017 of Hon'ble High Court by Hon'ble Mr. Justice J.R. Midha in case of Rajesh Tyagi LR's of Baljeet Singh Vs. Zorawar Singh & Ors Page 27 of 36 LR's of Baljeet Singh Vs. Zorawar Singh & Ors Page 28 of 36 Vs. Jaibir Singh and Ors., National Insurance co/R2 is directed to deposit the awarded amount of Rs.39,54,192/ within 30 days from today within the jurisdiction of this Tribunal at State Bank of India, Rohini Courts Branch, Delhi along with interest at the rate of 6% per annum from the date of filing of the petition/DAR till notice of deposition of the awarded amount to be given by R2 to the petitioner and his advocates and to show or deposit the receipt of the acknowledgement with the Nazir as per rules. R2 is further directed to deposit the awarded amount in the above said bank by means of cheque drawn in the name of above said bank along with 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. In respect of disbursal of award amount amongst the legal heirs of the deceased, it has been submitted by the learned counsel for the petitioners that the entire award amount be disbursed in favour of parents of the deceased, that is, petitioner No.1 Pritam Singh and petitioner No.2 Smt. Sarabjeet Kaur because the wife of the deceased, namely, Ms. Harpreet Kaur has remarried on 26.07.2018 during the pendency of the present proceedings and the factum of remarriage of Ms. Harpreet Kaur has been confirmed by Sh. Guljar Singh, her father. Ld. Counsel for the petitioners has further argued that he had also made a statement at bar before this Court on 13.12.2018 regarding the factum of remarriage of Ms. Harpreet Kaur. With these submissions, learned counsel for the petitioners has argued that the share of Ms. Harpreet Kaur be transferred in favour of petitioner No.1 and 2. 20.1 I respectfully disagree with the submissions of learned counsel for the petitioners to the effect that the petitioner No.3 Ms. Harpreet Kaur was not entitled to any share in the awarded amount on account of her remarriage on 26.07.2018 because the decision of the petitioner No.2 to remarry consequent upon untimely demise of her husband is her personal choice and would have no bearing upon her LR's of Baljeet Singh Vs. Zorawar Singh & Ors Page 28 of 36 LR's of Baljeet Singh Vs. Zorawar Singh & Ors Page 29 of 36 entitlement to receive compensation for unfortunate demise of her husband in a road traffic accident.
20.2 The issue of determination of share of a widow of deceased victim of road traffic accident after her remarriage had also come up for consideration before the Hon'ble High Court of Delhi in the case of Dincy Devassy v/s United India Insurance Co. & Others, MAC.APP. No. 26 of 2019 Decided On, 12 December 2019, wherein it had been categorically held by Hon'ble High Court of Delhi that the right of a widow to claim her share in the compensation award likely to be awarded by MACT in respect of demise of her husband in a road traffic accident would not abate upon her remarriage and she would have all rights to claim compensation for the demise of her spouse despite having remarried unless she herself relinquishes her share in compensation in favour of some other legal heir of her deceased husband. Relevant extract of the observation made in para 3 of the judgment is noteworthy in this context and is reproduced herein below:
"3. The calculation of loss of dependency was on the basis of her dependency on her deceased husband; her loss is equal to the loss of dependency suffered by her parentsinlaw. Her decision to remarry was entirely her personal choice, over which nobody can have any say. Her right to claim compensation crystallized upon her husband's life being tragically snatched away in the motor accident. Therefore, simply because she has now remarried, her claim does not abate or lessen. Who can judge whether the second marriage was not a compromise because of her personal circumstances and whether it would have the same value emotionally and psychologically as the first marriage. Her entitlement fructified when the dependency was calculated. Therefore as an aggrieved widow, she would be entitled to a share of compensation apropos "loss of dependency" of equal amount to her parentsinlaw, who had lost their son. The learned counsel for the parents of the deceased, has nothing to say to the contrary."
20.3 In the light of aforecited opinion expressed by Hon'ble High Court of Delhi in the case of Dincy Devassy v/s United India Insurance Co. & Others, it can be safely concluded that the second marriage of a widow upon demise of her husband in a road traffic accident would not terminated her entitlement to receive compensation in respect of demise of her husband in a road traffic accident and her share would have to be calculated considering her as one of the dependents of the LR's of Baljeet Singh Vs. Zorawar Singh & Ors Page 29 of 36 LR's of Baljeet Singh Vs. Zorawar Singh & Ors Page 30 of 36 deceased without taking into the factum of her remarriage particularly in cases where such widow had not relinquished her share in favour of her in laws or other legal heirs of her deceased husband.
20.4 It is also pertinent to mention that even if petitioner No.3 Harpreet Kaur had specifically appeared before the Court and had statement before this Court for the purpose of relinquishing her share in the compensation likely to be awarded by this Court in favour of other legal heirs of the deceased, then also, the same would have no bearing upon the number of dependents to be considered by this Court while passing the award as well as on the quantum of share of each dependent at the time of disbursal or apportionment of the award amount amongst the legal heirs of the deceased. My view in this regard are fortified by the opinion expressed by the Hon'ble Apex Court in the decided case of Renu Rani Shrivastava VS. New India Assurance Company Ltd. & Ors., Civil Appeal No. 8248/2019 @ SLP(C) No3660/2017 wherein the Hon'ble Apex Court had observed that the relinquishment of her share in the award amount by the widow of the deceased in favour of her in law could at best be and at internal family arrangement of the parties and the grant of compensation by the MACT or by the Court in respect of accidental death of a person will not be affected by the family arrangement of the parties inasmuch as the compensation as per law has to be awarded by the Court in favour of the dependants. The relevant extract of observation made by the Hon'ble Apex Court in its order dated 23.10.2019 is reproduced herein below:
"...The argument of the learned counsel for the respondent/Insurance Company with regard to the relinquishment of her share in favour of the other claimants and consequently she is not entitled to compensation, cannot be accepted. It is in between the family members to make arrangement with regard to the family affairs. The grant of compensation by the MACT or by the Court in respect of accidental death of a person will not be affected by the family arrangement of the parties inasmuch as the compensation as per law has to be awarded by the Court in favour of the dependants. The internal family matter of the parties will not affect the award of compensation. Accordingly, the arguments of the respondent/Insurance Company are not sustainable. Compensation of Rs.2,06,75,000/ in toto is awarded. The same LR's of Baljeet Singh Vs. Zorawar Singh & Ors Page 30 of 36 LR's of Baljeet Singh Vs. Zorawar Singh & Ors Page 31 of 36 shall be shared by the family members of the deceased in the same proportion as is awarded by the MACT."
20.5 In the light of aforecited opinion expressed by Hon'ble High Court of Delhi in the case of Dincy Devassy(supra) as well as the opinion expressed by Hon'ble Supreme Court of India in the case of Renu Rani Shrivastav(supra), it can be safely concluded that the remarriage of petitioner No.3 Harpreet Kaur would have no bearing upon the quantum of her share in the awarded amount. Accordingly, the award amount is apportioned as under:
20.6 Statement of petitioner No.2 in terms of clause 29 MCTAP was recorded on 18.03.2021 regarding her savings bank a/c with no loan, cheque book and ATM/debit card. The LRs of petitioner No.1 Pritam Singh have not yet been impleaded, and therefore, their statement under Clause 29 MCTAP is yet to be recorded. Besides, petitioner No.3 Ms. Harpreet Kaur has is stated to have left India and settled at United States after her remarriage and her statement under Clause 29 MCTAP is also yet to be recorded. I have heard the petitioner and ld.
counsel for the petitioner/claimant regarding financial needs of the petitioner and in view of the judgment in the case of General Manager, Kerala State Road Transport Corporation Vs. Susamma Thomas and Others, 1994 (2) SC, 1631, 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: 20.7 It is deemed appropriate by this court after hearing learned counsels for all parties that maximum amount of compensation be kept in FDRs and only a very small amount be released to the claimants. Keeping in view the facts and circumstances of the case, the statements made by the petitioners, it is hereby directed that on realization of the entire award amount, an amount of Rs.13,02,666/ be given to Smt. Sarabjeet Kaur(mother of deceased victim in the case accident) and out of the remaining amount of Rs. 13,02,666/ be given to LRs of Sh. Pritam Singh(now deceased father of the victim of case accident) after compliance of the provision of clause 29 of MCTAP by them and the remaining amount of Rs.
LR's of Baljeet Singh Vs. Zorawar Singh & Ors Page 31 of 36 LR's of Baljeet Singh Vs. Zorawar Singh & Ors Page 32 of 3613,02,666/ be granted to Ms. Harpreet Kaur(widow of the deceased Baljeet Singh) subject to compliance of the provisions of Clause 29 MCTAP by her. From the share of the mother of the deceased an amount of Rs.2,02,666/ be released to the mother of deceased in her A/c bearing No.37576905364 with SBI, Meera Bagh Branch, Delhi as per rules, that is, the branch near her place of residence (as mentioned in statement recorded under clause 29 MCTAP) and remaining amount falling in the share of the mother of the deceased be kept in 72 FDRs of equal amount for a period of one month to 72 months respectively with cumulative interest without the facility of advance, loan and premature withdrawal without the prior permission of the Tribunal.
20.8 It shall be subject to the following further conditions and directions in terms of order dated 07.12.2018 of Hon'ble Mr. Justice J.R. Midha in case of Rajesh Tyagi vs Jaibir Singh, FAO 842/2003 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 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 LR's of Baljeet Singh Vs. Zorawar Singh & Ors Page 32 of 36 LR's of Baljeet Singh Vs. Zorawar Singh & Ors Page 33 of 36 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, R2 is directed to deposit the award amount of Rs.38,08,000/ with interest @ 6% per annum from the date of filing of DAR/petition, that is, 09.12.2016 till realization within the jurisdiction of this Tribunal at SBI , Rohini Court Branch, Delhi within 30 days from today under intimation of deposition of the awarded amount to be given by R2 to the petitioner and his advocate failing which the R2 shall be liable to pay interest @ 9% per annum from the period of delay beyond 30 days.
21.2 R2 is also directed to place on record the proof of deposit of the award amount, proof of delivery of notice in respect of deposit of the award 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.
21.3 A copy of this judgment/award be sent to respondent no. 2 for compliance within the granted time.
21.4 Nazir is directed to place a report on record in the event of non receipt/deposit of the compensation amount within the granted time.
In terms of directions contained in the order dated 07.12.2018 and subsequent order dated 22.02.2019 of Hon'ble Mr. Justice J.R. Midha in the case of Rajesh Tyagi and Ors vs Jaibir Singh and Ors., FAO 842/2003, the LR's of Baljeet Singh Vs. Zorawar Singh & Ors Page 33 of 36 LR's of Baljeet Singh Vs. Zorawar Singh & Ors Page 34 of 36 copy of the award be also sent by the Ahlmad of the court to Mr. Rajan Singh, 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 (022 22741336/9414048606) {other detailsPersonal Banking Business Unit (LIMA) 13th Floor, State Bank Bhawan, Madame Cama Road, Nariman Point, Mumbai 400021} through email ([email protected]) through the computer branch of Rohini Courts, Delhi. Ahlmad of the court is directed to take immediate steps in that regard.
21.5 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 in FAO 842/2003 Rajesh Tyagi Vs. Jaibir Singh and Ors. vide order dated 12.12.2014.
In view of the directions contained in order dated 18.01.2018 of Hon'ble Mr. Justice J.R. Midha in FAO no. 842/2003 titled as Rajesh Tyagi vs Jaibir Singh, statement of petitioner No.2 was also recorded on 18.03.2021 wherein they had stated that they 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.
Announced in open court (JASJEET KAUR)
on 31st January, 2022 PO MACT N/W
Rohini Courts, Delhi.
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LR's of Baljeet Singh Vs. Zorawar Singh & Ors Page 35 of 36
FORM - IV A
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN DEATH CASES TO BE INCORPORATED IN THE AWARD
1. Date of accident : 26.06.2017
2. Name of deceased: Sh. Baljeet Singh
3. Age of the deceased: About 29 years 8 months and 27 days at the time of accident.
4. Occupation of the deceased: Salaried employee
5. Income of the deceased: Rs.20,000/ per month
6. Name, age and relationship of legal representatives of deceased:
S.No. Name Age/Date Relation
of Birth
(i) Sh. Pritam Singh(now deceased) 09.11.1965 Father
(ii) Smt Sarabjeet Kaur 24.07.1967 Mother
(iii) Smt. Harpreet Kaur 30 years at Widow
the time of
filing of
DAR
Computation of Compensation
S.No. Heads Awarded by the Claims
Tribunal
7. Income of the deceased (A) Rs.20,000/ (as per
appointment letter and Form
16)
8. AddFuture Prospects (B) 40% = Rs.8,000/
9. LessPersonal expenses of the 1/3rd , that is, Rs.9,333.3/
deceased (C )
10. Monthly loss of dependency Rs.18,666/
{ (A+B) - C =D}
11. Annual loss of dependency (Dx12) Rs.2,24,000/
12. Multiplier (E) 17
13. Total loss of dependency (Dx12xE = Rs. 38,08,000/
F)
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LR's of Baljeet Singh Vs. Zorawar Singh & Ors Page 36 of 36
14. Medical Expenses (G) Nil
15. Compensation for loss of love and Nil
affection (H)
16. Compensation for loss of consortium Rs.1,20,000/ (40,000x3)
(I)
17. Compensation for loss of estate (J) Rs. 15,000/
18. Compensation towards funeral Rs. 15,000/
expenses (K)
19. TOTAL COMPENSATION Rs. 39,58,000/.
(F+G+H+I+J+K =L)
20. RATE OF INTEREST AWARDED 6%
21 Interest amount up to the date of Rs12,21,688/
award (M)
22. Total amount including interest (L+M) Rs.51,79,688/
23. Award amount released Rs.2,02,666/ to the petitioner
No.2 Smt. Sarabjeet Kaur.
The shares of petitioners
No.1 and 3 shall be released
only after compliance of
clause 29 of MCTAP by them.
24. Award amount kept in FDRs Rs.49,77,022/
25. Mode of disbursement of the award As per award and in terms of amount to the claimant (s) (Clause clause 29 of MCTAP.
29)
26. Next date for compliance of the 02.03.2022.
award. (Clause 31)
Announced in open court (JASJEET KAUR)
on 31 January, 2022 PO MACT N/W
Rohini Courts, Delhi.
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