Delhi District Court
Bajeet Kaur vs Murli Kushwaha on 22 September, 2023
IN THE COURT OF SH: JAGDISH KUMAR PO:MACT2 (SOUTH
WEST): DWARKA: NEW DELHI
MACT No. 1277/17
FIR No. 372/16
PS Najafgarh, Delhi
1. Smt Baljeet Kaur
W/O late Sh Ravinder Pal
2. Husanpreet Kaur
D/O late Sh Ravinder Pal
3. Jaismeen Kaur
D/O late Sh Ravinder Pal
Petitioner No.2 and 3 are being minor through his mother and Natural
Guardian Smt Baljeet Kaur Petitioner No.1.
All R/O VPO Macharai Sri Hargobindpur,
Gurdaspur, Punjab143515.
....Petitioners
VERSUS
1. Murali Kushwaha
S/O Sh Dev Sharan Kushwaha
R/O Village: Akauri Siddi,
Sidhi, M.P
2. K.R Anand
S/O Late Shri A.N. Anand
M/S K.R Anand, C57 & 59,
GF Ramesh Nagar, (Double Storey)
New Delhi
3. Oriental Insurance Co Ltd
DO19, Pankaj Plaza, Plot No.4,
SF Sector4, Dwarka New Delhi
MACT no.1277/17 Baljeet Kaur & Ors. Vs. Murli Kushwaha ors. Page 1 of 15
....Respondents
DATE OF INSTITUTION : 08.11.2017
ARGUMENTS HEARD ON : 22.09.2023
DATE OF AWARD : 22.09.2023
FORM - V
COMPLIANCE OF THE PROVISIONS OF THE MODIFIED CLAIMS TRIBUNAL AGREED PROCEXDURE TO BE MENTIONED IN THE AWARD
1. Date of the accident 08.09.2016
2. Date of intimation of the accident by the investigating 08.11.2017 officer to the Claims Tribunal (Clause 2)
3. Date of intimation of the accident by the investigating do officer to the insurance company. (Clause 2)
4. Date of filing of Report under section 173 Cr.P.C. Not known before the Metropolitan Magistrate (Clause 10)
5. Date of filing of Detailed Accident Information Report 08.11.2017 (DAR) by the investigating Officer before Claims Tribunal (Clause 10)
6. Date of Service of DAR on the Insurance Company 08.11.2017 (Clause 11)
7. Date of service of DAR on the claimant(s). (Clause 11) 08.11.2017
8. Whether DAR was complete in all respects? (Clause Yes
16)
9. If not, whether deficiencies in the DAR removed later N/A on?
10. Whether the police has verified the documents filed Yes with DAR? (Clause 4)
11. Whether there was any delay or deficiency on the part No of the Investigating Officer? If so, whether any action/direction warranted?
12. Date of appointment of the Designated Officer by the Not known insurance Company. (Clause20) MACT no.1277/17 Baljeet Kaur & Ors. Vs. Murli Kushwaha ors. Page 2 of 15
13. Name, address and contact number of the Designated do Officer of the Insurance Company. (Clause 20)
14. Whether the designated Officer of the Insurance No Company submitted his report within 30 days of the DAR? (Clause 20)
15. Whether the insurance company admitted the liability? No If so, whether the Designated Officer of the insurance company fairly computed the compensation in accordance with law. (Clause 23)
16. Whether there was any delay or deficiency on the part Not known 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 the do Insurance Company. (Clause 24)
18. Date of the Award 22.09.2023
19. Whether the award was passed with the consent of the No parties? (Clause 22)
20. Whether the claimant(s) were directed to open saving Yes bank account(s) near their place of residence? (Clause
18)
21. Date of order by which claimant(s) were directed to 17.05.2018 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). (Clause
18)
22. Date on which the claimant (s) produced the passbook 20.07.2019 of their saving bank account near the place of their residence along with the endorsement, PAN Card and Aadhar Card? (Clause 18)
23. Permanent Residential Address of the Claimant(s) R/O VPO Macharai (Clause 27) Sri Hargobindpur, Gurdaspur,Punjab 143515.
MACT no.1277/17 Baljeet Kaur & Ors. Vs. Murli Kushwaha ors. Page 3 of 1524. Details of saving bank account(s) of the claimant(s) and Petitioner no. 1 the address of the bank with IFSC Code (Clause 27) SB A/c No. 34018090641 IFSC Code:
SBIN0011964 at SBI , Sri Hargobindpur Gurdaspur, Punjab Petitioner no. 2 SB A/c No. 36546110198 IFSC Code:
SBIN0011964 at SBI , Sri Hargobindpur Gurdaspur, Punjab Petitioner no. 3 SB A/c No. 36545896135 IFSC Code:
SBIN0011964 at SBI , Sri Hargobindpur Gurdaspur, Punjab
25. Whether the claimant(s) saving bank account(s) is near Yes his/her place of residence? (Clause 27)
26. Whether the claimant(s) were examined at the time of Yes passing of the award.
27. Account number, MICR number IFSC Code, name and State Bank of India, branch of the bank of the Claims Tribunal in which the Branch Sector10, award amount is to be deposited/transferred Dwarka Courts, New Delhi Account No. 37665510911 MICR No. 110002483 FORM - IV A MACT no.1277/17 Baljeet Kaur & Ors. Vs. Murli Kushwaha ors. Page 4 of 15 SUMMARY OF COMPUTATION OF AWARD AMOUNT IN DEATH CASES TO BE INCORPORATED IN THE AWARD
1. Date of accident: 08.09.2016
2. Name of deceased: Ravinder Pal Singh
3. Age of the deceased:34 years
4. Occupation of the deceased: Khalasi in Hindustan Construction Co Ltd
5. Income of the deceased:29,510/ p.m ( As claimed )
6. Name, age and relationship of legal representatives of deceased:
S.No. Name Age Relation
(i) Smt Baljit Kaur 35 yrs Wife
(ii) Husanpreet Kaur ( Minor) 15 yrs Daughter
(iii) Jaismeen Kaur ( Minor) 08 yrs Daughter
Computation of Compensation
S.No. Heads Awarded by the Claims
Tribunal
7. Income of the deceased (A) Rs.10,582/
8. AddFuture Prospects (B) Rs. (50%)
9. LessPersonal expenses of the deceased Rs. (1/3rd as there are three
(C) dependents)
10. Monthly loss of dependency Rs.10,582/(10,582/+5,291/ 5291/)
{ (A+B) - C =D}
11. Annual loss of dependency (Dx12) Rs. 1,26,984/
12. Multiplier (E) 16
13. Total loss of dependency (Dx12xE = F) Rs.20,31,744/
14. Medical Expenses (G) Nil
15. Compensation for loss of love and Nil affection (H)
16. Compensation for loss of consortium Rs. 44,000/- to each of the MACT no.1277/17 Baljeet Kaur & Ors. Vs. Murli Kushwaha ors. Page 5 of 15 (I) petitioner i.e Rs.1,32,000/-
17. Compensation for loss of estate (J) Rs.17,000/
18. Compensation towards funeral Rs.17,000/ expenses (K)
19. TOTAL COMPENSATION Rs.21,97,744/ (F+G+H+I+J+K =L)
20. RATE OF INTEREST AWARDED 7.5% per annum 21 Interest amount up to the date of As per calculation compliance (M)
22. Total amount including interest (L+M) As per calculation
23. Award amount released 10%
24. Award amount kept in FDRs 90% equal yearly FDR's
25. Mode of disbursement of the award NEFT amount to the claimant (s) (Clause 29)
26. Next date for compliance of the award. 21.10.2023 (Clause 31) AWARD
1. The facts leading to pass the present award are that Police has filed a Detailed Accident Report (DAR) with respect to accident occurred on 08.09.2016. Brief facts of the present case are that on 08.09.2016, at about 11.50 A.M, at Metro Site, infront of Sai Baba Mandir, Najafgarh Delhi, deceased Ravinder Pal Singh S/O Sh Balwant Singh was working at Metro Construction site. When offending truck bearing No.HR 588703 being driven by its driver in reverse in a rash and negligent manner to its back side where the deceased alongwith other staff members were standing for their work and hit the deceased. As a result of which deceased was trapped between the bucket ( drum) and offending truck. The deceased Ravinder MACT no.1277/17 Baljeet Kaur & Ors. Vs. Murli Kushwaha ors. Page 6 of 15 Pal Singh sustained grievous injuries. The injured/deceased was removed to Action Medical Institute, Pachim Vihar, N Delhi, where his MLC No. 6277/17 was prepared. The deceased remained admitted wef 08.09.2016 to 19.09.2016 in the hosptial and he died in hospital on 19.09.2016. The present case for compensation pertains to the death of Sh Ravinder Pal Singh.
2. After completion of investigation, the police found the offending vehicle Truck bearing No. HR 588703, being driven by its driver rashly and negligently and indicated respondent No.1 Murli Kushwah as driver. The Truck is owned by K.R Anand so he is indicated as respondent No.2 . And the offending vehicle was insured with the Oriental Insurance Company Ltd , hence it is indicated/made as respondent No.3 in the DAR. IO filed 'Detailed Accident Report' (DAR) before this tribunal on 08.11.2017 and produced driver and owner before this tribunal. The DAR has been considered as application for claim.
3. The respondent No.1 and 2 have not filed any reply/W.S to the DAR/petition.
4. The respondent no.3, insurance company has filed its WS/reply stating therein that the alleged offending vehicle was a commercial vehicle which was running without renewal of Registration certificate and Fitness on the date of accident. It is stated that IO of the DAR has also charge sheeted R.1 for the offence U/S 39/192 and 56/192 of M.V Act. Hence insurance company is not liable to pay compensation to the petitioner.
5. After completion of the pleadings, following issues were framed on 15.01.2018 :
(i) Whether Ravinder Pal sustained fatal injuries in a motor vehicle MACT no.1277/17 Baljeet Kaur & Ors. Vs. Murli Kushwaha ors. Page 7 of 15 accident which took place during the intervening night of 08.09.2016 due to rash and negligent driving of vehicle ie No. HR588703 being driven by respondent No.1 Murali Kushwaha owned by Respondent No2 K.R Anand and insured by Respondent No.3 The Oriental Insurance Co Ltd ? OPP.
(ii) Whether the petitioners are entitled to claim compensation, if so, what amount and from whom? OPP.
(iii) Relief.
6. In order to prove their claim, petitioners have examined petitioner No.1 Baljit Kaur as PW1. Sh Jai Parkash Verma as PW2. Sh Deepak Kumar as an eye witness as PW3.Sh Abhishek Puri as PW4. ( again mentioned as PW3). The respondent No.3 has examined Sh Anil Kumar Vij, its Assistant Manager as R3W1.
7. I have heard ld. counsel appearing on behalf of petitioners and Ld Counsel for respondent No.1 to 3. I have given my thoughtful consideration to the submission made by them and I also perused the record. My issuewise findings are as under: ISSUE NO. 1: (i) Whether Ravinder Pal sustained fatal injuries in a motor vehicle accident which took place during the intervening night of 08.09.2016 due to rash and negligent driving of vehicle ie No. HR588703 being driven by respondent No.1 Murali Kushwaha owned by Respondent No2 K.R Anand and insured by Respondent No.3 The Oriental Insurance Co Ltd ? OPP
8. The onus to prove this issue was upon the petitioners. To prove this fact petitioners have examined PW3 Sh Deepak Kumar , who is stated to be an eye witness. He has deposed that on 08.09.2016 at about 11.50 A.M at Metro Site, infront of Sai Baba Mandir, Najafgarh Delhi, he alonwith deceased Ravinder Pal MACT no.1277/17 Baljeet Kaur & Ors. Vs. Murli Kushwaha ors. Page 8 of 15 Singh were working at Metro Construction site. When offending truck bearing No.HR 588703 being driven by its driver in reverse gear in a rash and negligent manner to its back side where the deceased alongwith him and other staff members were standing for his work and hit the deceased. He has depsoed that as a result of which deceased was trapped between the bucket ( drum) and offending truck. He has deposed that Ravinder Pal Singh( deceased) sustained grievous injuries. He has deposed that accident took place due to wrongful parking on the part of driver/R.1 of offending Truck No.HR588703.
9. I have gone through the testimony of PW 3 ( who is eye witness) who has proved the fact of accident being occurred due to negligent driving/reversing of offending vehicle by respondent No.1. Moreover the proof of negligence, while disposing of a claim under MACT, is not that strict as it is for the offence under Section 279/304A of IPC. The charge sheet was filed against respondent no.1 and he has not filed any complaint against the police before any higher authority against such implication. The allegations levelled in the written statement howsoever strong that may be, cannot take place of proof. Therefore, the evidence which has come on the file only can be considered. It is a matter of record that there is no evidence at all to show it was he deceased who was working negligently at metro construction side.
10. The fact that Sh Ravinder Pal Singh died in that accident is also supported by his postmortem report on the dead body of victim. Considering all the evidence as discussed above, it stands proved that accident in question was caused due to rash and negligent driving of truck bearing No.HR588703 by respondent no.1 thereby causing death of Sh Ravinder Pal Singh. So this issue is therefore decided in favour of the petitioners and against respondents. ISSUE No.2: Whether the petitioners are entitled to compensation, if so, MACT no.1277/17 Baljeet Kaur & Ors. Vs. Murli Kushwaha ors. Page 9 of 15 what amount and from whom? OPP.
11. The Petitioner no.1 is the wife , petitioner 2 and 3 are minor daughters of the deceased, as such LRs of victim.
12. Now coming to the extent of compensation. PW1 Baljeet Kaur, has deposed that her husband was 34 years of age at the time of accident. He has deposed that at the time of accident, the deceased was working as Khalasi with Hindustan Construction Co Ltd and earning Rs.29,510/ p.m. His earning would have been increasing on day to day basis, if he could have alive. So far as monthly income of the deceased is concerned petitioners have examined PW 3 Sh Abhishek Puri,Senior HR Assistant Hindustan Construction Ltd who has proved the salary slip of deceased for the month of August ,2015 vide Ex PW3/A( Colly). I have perused the salary slip. So far as allowances, such as OT ( over time) amount and Adhoc amount being paid to the deceased and as shown in the salary Slip Ex PW3/A is concerned. Ld Counsel for the petitioner as well as Ld Counsel for the insurance company has conceded that these allowances are personal incentives of deceased and varied from time to time. So by deducting the Adhoc Amount, project allowance and Extra OT amount and by adding basic salary, the income for the purpose of computation of compensation is taken as Rs.10,582/ p.m. No tax have been deducted on the salary of victim. So as per the judgment, in the case Rajesh Vs Rajbir Singh 2013 ACJ 1403 SC of Hon'ble Supreme Court, the net income of the deceased is to be counted after adding future benefit @50%. There are three LRs of victim so he ( deceased) is presumed to be spending 1/3rd of his income on his personal expenses. So the loss of dependency has to be taken as Rs. 10,582/ (10,582/ +5,291/ 5291/) per month.
13. The age of the deceased was 34 years, (as per Post Mortem report Ex PW1/3) at the time of accident. To calculate loss of dependency, the multiplier has MACT no.1277/17 Baljeet Kaur & Ors. Vs. Murli Kushwaha ors. Page 10 of 15 to be taken on the basis of age of deceased. A multiplier of 16 is thus taken in calculating loss of dependency. Counting in this way, loss of dependency comes to Rs. 20,31,744/ ( 10,582/ x 12 x 16. ). This amount of Rs.20,31,744/ is allowed to petitioners as loss of dependency. MEDICAL EXPENSES.
14. So far as medical bills are concerned. PW1 has deposed in her examination in chief that a sum of Rs.8,23,479/ was spent on the medical treatment of victim. But in the cross examination, PW 1, has admitted that whole expenses of treament of her deceased husband were borne by his employer namely K.R Anand.
16. Apart from amount mentioned above, petitioners no. 1 is also granted a sum of Rs.17,000/ for funeral expenses, Rs.17,000/ for loss of estate and Rs. 1,32,000/ (Rs. 44,000/ each to all the petitioners) for loss of consortium, making a total sum of compensation as Rs.21,97,744/ The Detail of the whole award amount is: i. Loss of dependency Rs. 20,31,744/ ii. Funeral expenses Rs. 17,000/ iii. Loss of Estate Rs. 17,000/ v. Loss of consortium Rs.44,000/ to each petitioner Rs. 1,32,000/ Total Rs. 21,97,744/
15. Now question arises who will pay the compensation amount. Ld Counsel for the Insurance company has argued that Insurance Company is not liable to pay compensation to the petitioners as the registration of the offending vehicle was expired which is clear violation of Section 39 of Motor Vehicle Act. He has placed reliance on the judgment of Hon'ble Supreme Court in case titled as United India MACT no.1277/17 Baljeet Kaur & Ors. Vs. Murli Kushwaha ors. Page 11 of 15 Insurance Co Ltd Vs Sushil Kumar Godara, 2021 Lawsuit ( SC) 589. I have gone through the judgment of Hon'ble Supreme Court with utmost regard. The case United India Insurance ( Supra) was filed before the Hon'ble Supreme Court agaisnt the order of Hon'ble National Consumer Dispute Redressal Commission, in which the claim was filed by the owner of the vehicle which was got stolen and registration of the said vehicle was expired being temporary. The Hon'ble Supreme Court decline the claim for compensation against the theft of vehicle. But the said judgment is not applicable in third party liability being arose from accident. The Hon'ble High Court of Himachal Pradesh in case titled as National Insurnfe Company Limited Vs Kamal Kishore & ors 2019 SCC Onlines 932 has observed "When the vehcle was insured towards third party liability, it was done on the basis of Engine Number, Chasis number, these numbers were duly mentioned in the insurance policy. The Insurance Policy is the contract between insured and insurer. It was not insured on the basis of temporary registrtion number or permanent registration number. The Hon'ble High Court has further observed that " there is no connection between the cause of accident and the registration or non registration of the vehicle.
16. Here in the present case, though the registration number of the alleged offending vehicle was expired but the insurance policy No.214500/31/2016/6852 of offending vehicle qua indemnify the insured for third party on account of accident was valid upto 10.11.2016. The Insurance company has not given any notice to owner by revoking the insurancy policy after expiry of registration number of offending vehicle and offending vehicle was also having a valid permit till 17.03.2018. Though it is proved on record tha offending vehicle was not having vlaid registration certificater and fitness certificate on the date of accident.
17. The Hon'ble Apex Court has held in Narinder Singh Vs New India Assurance MACT no.1277/17 Baljeet Kaur & Ors. Vs. Murli Kushwaha ors. Page 12 of 15 Company Limited that " nonregistration of the vehicle is fundamental breach of policy condition, however in order to protect the third party rights, condition can be construed to be fundamental only agaisnt insured and not with regard to third party risk. Therefore, Insurance company would be entitled for application of principle of pay & recover from insured. Similarly, it has also been held in recent judgmenet in Shamanna Vs Divisional Manager, Oriental Insurance Company Limited (2018) 9 SCC 650.
18. So in view of the testimony of R3W1 and coupled with the aforesaid law laid down by Hon'ble Supreme Court. This issue is therefore decided in favour of the petitioners and against respondents by holding that petitioners are entitled for compensation from respondent no.3, who in turn has a right to recover the same jointly and severally from respondent no. 1 and 2 after making payment to the petitioners.
ISSUE NO.3 (RELIEF)
19. Petition in hands is allowed. Respondent no.3 is directed to pay a sum of Rs. 21,97,744/ alongwith interest @ 7.5% p.a from the date of filing of claim petition i.e. 08.11.2017 till the date of compliance i.e., 21.10.2023. Amount of interim compensation (if any) be deducted from this amount. The awarded amount shall remain as tax free in view of the judgment of Hon'ble High Court in case in R/Special Civil Application No.4800 of 2021 titled The Oriental Insurance Co Ltd Vs Chief Commissioner of Income Tax (TDS) decided on 05.04.2022
20. In view of the facts of the case, the circumstances the compensation to the Petitioner(s) be distributed as follows: S Name of Age Relation with Amount of Amount to be Amount Period of FDR N Petitioner/Claimant (yrs) Injured/ Award released kept in FDR Deceased
1. Baljit Kaur About Wife Rs.8,79,097.60/- Rs.87,909.76/- Rs.7,91,187.84- Ten FDRs of equal alongwith MACT no.1277/17 Baljeet Kaur & Ors. Vs. Murli Kushwaha ors. Page 13 of 15 28 years ie 40% of total alongwith interest @ amount each for a interest @ 7.5% from awarded amount 7.5% from the date of period of one year to filing of the the date of petition till alongwith filing of the the date of ten years with interest @ 7.5% petition till deposit of from the date of the date of award cumulative interest filing of the deposit of amount petition till the award amount date of deposit of award amount ( As she has to maintained two minor daughters)
2. Husanpreet Kaur About Daughter Rs. 6,59,323.20 Rs. 6,59,323.20/- Five FDRs of equal alongwith 15 years ( Minor) ie 30% of total interest @ amount each for a 7.5% from awarded amount the date of period of three year filing of the alongwith petition till to eight years with the date of interest @ 7.5% deposit of from the date of award cumulative interest filing of the amount petition till the and first FDR shall date of deposit of award amount be started to be paid to her when she attains her majority.
3. Jasismeen Kaur About Daughter Rs. 6,59,323.20 Rs. 6,59,323.20/- Five FDRs of equal alongwith 08 years ( Minor) ie 30% of total interest @ amount each for a 7.5% from awarded amount the date of period of ten year to filing of the alongwith petition till fifteen years with the date of interest @ 7.5% deposit of from the date of award cumulative interest filing of the amount petition till the and first FDR shall date of deposit of award amount be started to be paid to her when she attains her majority.
TOTAL Rs.21,97,744/- Rs.87,909.76/- Rs.21,09,834.24
21. The salient features as prescribed in the judgment in Rajesh Tyagi Vs. Ramesh Chandra Gupta FAO No. 842/2009 and MAC. App. No. 422/2009 decided on 07.11.2014 are to be applied:
(i) The fixed deposit be renewed automatically till the period prescribed by MACT no.1277/17 Baljeet Kaur & Ors. Vs. Murli Kushwaha ors. Page 14 of 15 the Court.
(ii) The interest on the fixed deposit be paid monthly.
(iii) The monthly interest be credited automatically in the saving account of the claimant.
(iv) Original fixed deposit receipt be retained by the bank in safe custody.
However, the original passbook shall be given to the claimant along with the photocopy of the FDR.
(v) The original fixed deposit receipt be handed over to the claimant at the end of the fixed deposit period.
(vi) Photo identity card shall be issued to the claimant and the withdrawal shall be permitted only after due verification by the Bank of the identity card of the claimant.
(vii) No cheque book/ATM/debit card/credit card shall be issued to the claimant without permission of the Court.
(viii) No loan, advance or withdrawal or preencashment of FD amount shall be allowed on the fixed deposit without permission of the Court.
22. Respondent no.3 is directed to deposit entire amount of compensation with this tribunal, within 30 days from today, with advance notice to petitioners. File be consigned to record room.
ANNOUNCED IN THE OPEN (JAGDISH KUMAR)
COURT ON 22.09.2023 POMACT02,SOUTHWEST,
DWARKA, NEW DELHI
MACT no.1277/17 Baljeet Kaur & Ors. Vs. Murli Kushwaha ors. Page 15 of 15