Delhi District Court
Parninder Kaur And Ors vs Umesh on 15 April, 2024
MACP No. 343/18; FIR No. 485/17; PS. Alipur DOD: 15.04.2024
IN THE COURT OF MS. RICHA MANCHANDA, PRESIDING
OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNAL,
NORTH DISTRICT, ROHINI COURTS, DELHI
MAC Petition No. 343/18
UID/CNR No. DLNT01-004797-2018
1. Smt. Parninder Kaur,
W/o Late Sh. Harman Preet Singh,
R/o 10417, Street No. 8, Back Side Rajindra College,
Kikkar Dass Mohalla,
Bathinda, Punjab.
(Widow of deceased)
2. Smt. Gurvinder Kaur,
W/o Late Sh. Satpal Singh,
(Mother of deceased)
3. Baby Japleen Kaur,
D/o Late Sh. Harman Preet Singh,
(Minor daughter of deceased)
Petitioners no. 2 & 3 R/o. WZ-73,
Gali No. 27, Sant Garh,
Tilak Nagar,
New Delhi.
..........Petitioners
VERSUS
1. Sh. Umesh Kumar,
S/o Sh. Satya Narayan,
R/o B-64, Phase I,
Ashok Vihar,
Delhi.
(Driver)
Smt. Parninder Kaur & Ors. Vs. Umesh Kumar & Ors. Page 1 of 29
MACP No. 343/18; FIR No. 485/17; PS. Alipur DOD: 15.04.2024
2. M/s. K.H.I. Cold Storage Pvt. Ltd.,
6644, Khari Baoli,
New Delhi.
(Registered Owner)
3. Reliance General Insurance Co. Ltd.
Plot No. 10-15, 14th Floor,
Vijaya Building, 17,
Barakhamba Road,
Connaught Place,
New Delhi.
(Insurer)
............Respondents
Date of Institution : 19.05.2018
Date of Arguments : 27.03.2024
Date of Judgment : 15.04.2024
APPEARENCE(S):
Sh. Vikram Mann and Sh. Sandeep Kumar, Ld. Counsels for petitioners.
Ms. Kamakshi Garg, Ld. Counsel for driver and owner(defence struck off vide order dated 28.09.2018).
Sh. M. Awasthi, Ld. Counsel for insurance company.
Petition under Section 166 & 140 of M.V. Act, 1988 for grant of compensation AWARD
1. The present petition has been filed by the petitioners U/s 166 & 140 M.V.Act seeking compensation of Rs. 2,00,00,000/ alongwith interest @ 18% per annum from the date of filing of the present claim petition till its Smt. Parninder Kaur & Ors. Vs. Umesh Kumar & Ors. Page 2 of 29 MACP No. 343/18; FIR No. 485/17; PS. Alipur DOD: 15.04.2024 realization being legal representatives of deceased Sh. Harman Preet Singh (married, aged 31 years) on account of death of deceased Sh. Harman Preet Singh who died in road traffic accident in question which occurred on 30.10.2017. The petitioners also prayed for compensation for irreparable monetary loss, mental agony, loss of love and affection and future prospects plus all other heads of compensation as per entitlement, caused due to accidental death of deceased.
2. The concise material facts relevant to decide the present claim petition as averred are that on 30.10.2017, deceased Harman Preet Singh (aged about 31 years) was going to his office at Nathupur, District Sonepat, Haryana on his motorcycle bearing registration no. DL9S-BD-6179. At about 11:14 AM, when he reached at Singhu Border Road, near Singhu Gaon Chowk, one car bearing registration no. DL8C-AL-7186 (offending vehicle) which was being driven by its driver (respondent no. 1 herein) at a high speed in a rash and negligent manner, came from Singhu Border to Singhola Gaon side in a wrong direction and hit against the aforesaid motorcycle with a great force, as a result of which, deceased sustained grievous injuries. He was immediately taken to SRHC Hospital, Narela, Delhi. Postmortem of the deceased was conducted at the mortuary of BJRM Hospital, Jahangir Puri, Delhi. A case U/s 279/304A IPC was registered at PS. Alipur vide FIR No. 485/17 with regard to the accident in question. The petitioners have claimed that the accident has taken place due to rash and negligent driving of Smt. Parninder Kaur & Ors. Vs. Umesh Kumar & Ors. Page 3 of 29 MACP No. 343/18; FIR No. 485/17; PS. Alipur DOD: 15.04.2024 aforementioned offending vehicle which was allegedly being driven by respondent no.1/driver. The offending vehicle was found to be owned by respondent no. 2 and was duly insured with respondent no. 3/Reliance General Insurance Co. Ltd., at the time of accident in question.
3. The respondents no. 1 & 2 i.e. driver and registered owner have failed to file their WS despite grant of sufficient time and opportunities and accordingly, their defence was struck off vide order dated 28.09.2018 passed by Ld. Predecessor of this Court.
4. Respondent no. 3/insurance company filed its legal offer, whereby it had offered to pay a sum of Rs. 23,14,581/- (after deduction @ 6% on account of contributory negligence on the part of deceased) as compensation towards full and final satisfaction of the claim raised by petitioners for the fatal injury sustained by deceased in the accident in question. However, the said offer was not acceptable to the petitioners.
5. From the pleadings of the parties and the documents, the following issues were framed vide order dated 04.05.2019:-
1) Whether the deceased Sh. Harman Preet Singh suffered fatal injuries in road traffic accident on 30.10.2017 at about 11:14 AM on GTK Road towards Singhu Border Near Singhu Village, Delhi, within the jurisdiction of PS. Alipur due to rashness and negligence on the part of the driver Umesh Kumar/R-1 who was driving the vehicle bearing registration no.Smt. Parninder Kaur & Ors. Vs. Umesh Kumar & Ors. Page 4 of 29
MACP No. 343/18; FIR No. 485/17; PS. Alipur DOD: 15.04.2024 DL8C-AL-7186, owned by M/s. K.H.I Cold Storage Pvt.
Ltd./R-2 and insured with Reliance General Insurance Co. Ltd./R-3?OPP.
2) Whether the LRs of deceased are entitled to any compensation if so to what amount and from whom?
OPP.
3) Relief.
6. In order to establish his claim, the petitioners have examined four witnesses. PW1 Smt. Parninder Kaur(widow of deceased), PW2 Dr. Mukesh Kumar, Emp. Doctor, AAMC, Mandir Mohalla, Badli, Delhi, PW3 Sh. Papinder Singh (employer of deceased) and PW4 Dr. Rajesh Kumar, CMO, Mandoli, Jail Prison, Delhi. On the other hand, respondents did not lead any evidence and respondent's evidence was closed vide order dated 21.04.2023.
7. This Tribunal has carefully perused DAR/claim petition, evidence led by parties has been duly appreciated. All documents and material relied upon & proved considered. Arguments addressed by respective counsels considered. Legal position, both statutory and binding applicable precedents, has been appreciated. The issue wise determination is as under:-
ISSUE NO. 18. The onus to prove, the aforesaid issue was placed on the petitioners. To prove the said issue, petitioner no. 1 Smt. Parninder Kaur Smt. Parninder Kaur & Ors. Vs. Umesh Kumar & Ors. Page 5 of 29 MACP No. 343/18; FIR No. 485/17; PS. Alipur DOD: 15.04.2024 (widow of deceased) examined herself as PW-1. She has relied upon the following documents:
S.No. Description of documents Remarks
1. DAR alongwith documents Ex. PW1/A(colly)
2. Income Proof, salary certificate and Ex. PW1/B(colly) proof of employment of the deceased
3. Copy of PAN Card, Aadhaar Card Ex. PW1/C to Ex.
and Driving Licence of the deceased PW1/E
4. Copy of her Aadhaar Card Ex. PW1/F
5. Copy of Aadhaar Card of petitioner Ex. PW1/G no. 2
6. Copy of Aadhaar Card of petitioner Ex. PW1/H no. 3
9. PW1 Smt. Parninder Kaur (widow of deceased) in her testimony by way of affidavit (Ex. PW1/1) deposed that on 30.10.2017, deceased Harman Preet Singh was going to his office at Nathupur, District Sonepat, Haryana on his motorcycle bearing registration no. DL9S-BD-6179. She further deposed that at about 11:14 AM, when the deceased reached at Singhu Border Road, near Singhu Gaon Chowk, a car bearing registration no. DL8C- AL-7186 (offending vehicle) which was being driven by its driver (respondent no. 1 herein) at a high speed in a rash and negligent manner, came from Singhu Border to Singhola Gaon side in a wrong direction and hit against the aforesaid motorcycle of deceased with a great force, as a result of which, he fell down on the road and sustained grievous injuries. She further Smt. Parninder Kaur & Ors. Vs. Umesh Kumar & Ors. Page 6 of 29 MACP No. 343/18; FIR No. 485/17; PS. Alipur DOD: 15.04.2024 deposed that deceased was immediately taken to SRHC Hospital, Narela, Delhi, where he was declared 'brought dead'. She further deposed that postmortem of the deceased was conducted at the mortuary of BJRM Hospital, Jahangir Puri, Delhi. She further deposed that a case U/s 279/304A IPC was registered at PS. Alipur vide FIR No. 485/17 with regard to the accident in question. She categorically deposed that the accident has taken place due to rash and negligent driving of aforementioned offending vehicle i.e. Car bearing registration no. DL8C-AL-6179 which was allegedly being driven by respondent no.1/driver.
10. The aforesaid witness (PW1) was duly cross examined by the Ld. Counsel for insurance company and the respondent no. 1 on the aspect of issue under consideration where she deposed that she was not an eyewitness to the accident.
11. During the arguments, Ld. Counsel for petitioners heavily relied upon criminal case record (which is part of DAR Ex. PW1/A colly) in support of case of petitioners in order to bring home that the accident in question had taken place due to the rash and negligent driving of offending vehicle i.e. Car bearing Registration No. DL8C-AL-7186, by its driver/respondent no. 1. It has been contended that respondent no. 1 Sh. Umesh was also chargesheeted by police for offences punishable U/s 279/304A IPC, which clearly establishes that the accident had taken place due to rash and negligent driving of offending vehicle by respondent no. 1.
Smt. Parninder Kaur & Ors. Vs. Umesh Kumar & Ors. Page 7 of 29MACP No. 343/18; FIR No. 485/17; PS. Alipur DOD: 15.04.2024 Per contra, it is contended on behalf of insurance company that PW1 Smt. Parninder Kaur is not an eyewitness of the accident, as such her testimony should not be considered on this issue. It is further counter argued that the accident in question was occurred due to sole negligence of the deceased as he was driving his motorcycle at a very high speed, in a rash and negligent manner.
12. During the arguments, Ld. Counsel for the petitioners heavily relied upon the criminal case record (which is part of DAR Ex. PW1/A colly) in support of their case in order to bring home that the accident in question had taken place due to the rash and negligent driving of offending vehicle by respondent no. 1. It has been contended that respondent no. 1 Sh. Umesh was also charge-sheeted by police for offences punishable U/s 279/304A IPC, which clearly establishes that the accident had taken place due to rash and negligent driving of offending vehicle by respondent no. 1.
13. It is pertinent to note that the respondent no.1/driver of offending vehicle was the other material witness to throw light by testifying as to how and under what circumstances, the accident has taken place. However, he has preferred not to enter into the witness box. Thus, an adverse inference is liable to be drawn against him to the effect that the accident in question has taken place due to rash and negligent driving of the offending vehicle i.e. Car bearing registration no. DL8C-AL-7186 by the respondent no.1. There is nothing on record to show that the petitioners had any enmity with the driver Smt. Parninder Kaur & Ors. Vs. Umesh Kumar & Ors. Page 8 of 29 MACP No. 343/18; FIR No. 485/17; PS. Alipur DOD: 15.04.2024 of the offending vehicle so as to falsely implicate him in this case. Reliance placed on Cholamandalam MS General Insurance Co. Ltd. V. Kamlesh & Ors, MAC APP. No. 530/2008 passed by Hon'ble Delhi High Court on 11.11.2008.
14. Apart from above, copy of MLC (Ex. PW4/1) of deceased victim prepared at SRHC Hospital, Narela, Delhi, shows that he was taken to said hospital on 30.10.2017 at about 11:41 AM, where he was declared brought dead by the concerned doctor. On his local examination, he was found to have sustained multiple injuries as mentioned therein. The said injuries are consistent with the injuries which are sustained in a motor vehicular accident. Again, there is no challenge to the said document from the side of respondents including insurance company. Further, the postmortem report (which is part of DAR) also corroborates that cause of death of deceased was head injury. All the injuries were antemortem, produced by blunt force/surface impact, fresh in duration and could be caused in a manner as alleged. The injuries as mentioned in the relevant column of external injuries of the said report, are also consistent with the injuries which are sustained in road traffic accident. It is proved on record, by sufficient evidence as per law that the deceased succumbed to his injuries sustained in the road accident in question.
15. Further, copy of mechanical inspection report dated 01.11.2017 (which is also part of DAR) of Car bearing registration no. DL8C-AL-7186, Smt. Parninder Kaur & Ors. Vs. Umesh Kumar & Ors. Page 9 of 29 MACP No. 343/18; FIR No. 485/17; PS. Alipur DOD: 15.04.2024 would show fresh damages i.e. its front side bumper right side corner was found scratched and dislocated; its front right side wheel tyre and cap were found scratched and its front right side body fender was found damaged from front side. Likewise, copy of mechanical inspection report dated 01.11.2017 (which is also part of DAR) of motorcycle bearing no. DL9S-BD-6179 of victim, would show that its front side wheel mudguard front side portion was found scratched and cracked; its front side both shockers were found bended; its front right side leg guard was found bended and its headlight was found damaged/missing. Both these reports would also corroborate the testimony of PW1 to the effect that offending vehicle came from front side and hit the motorcycle of deceased from front side.
16. The site plan annexed with the criminal case record has been prepared during the investigation. Perusal of the same clearly reveals that offending vehicle came from front side after changing its lane. The spot of accident at point A as per site plan shows that deceased was driving his motorcycle at the correct side of the road, however, the respondent no. 1 had come from the front side at the road where the motorcycle of deceased was moving, after changing its lane and hit the motorcycle from the front side. The rash and negligent driving of the offending vehicle may be proved, either by direct evidence or by circumstances including principle by applying the res-ipsa loquitur. The nature and manner of damage to the motorcycle of deceased and the offending vehicle i.e. car due to collision clearly points out Smt. Parninder Kaur & Ors. Vs. Umesh Kumar & Ors. Page 10 of 29 MACP No. 343/18; FIR No. 485/17; PS. Alipur DOD: 15.04.2024 to rash and negligent manner of driving of offending vehicle by respondent no. 1/driver, thereby causing injuries to the deceased. Moreover, the offending vehicle is shown to have been seized from the place of accident. This fact gets strengthened from the copy of seizure memo dated 30.10.2017 (date of accident also being 30.10.2017)(which is part of DAR).
17. In view of the aforesaid discussion and the evidence which has come on record, it is held that the petitioners have been able to prove on the basis of preponderance of probabilities that deceased has sustained fatal injuries in the Motor Vehicular Accident which has occurred on 30.10.2017 at Singhu Border Road, near Singhu Gaon Chowk, due to rash and negligent driving of offending vehicle(Car) bearing registration no. DL8C-AL-7186 by respondent no. 1. Thus, issue no. 1 is decided in favour of petitioners and against the respondents.
ISSUE NO. 218. The petitioners who are claimants are the widow, minor daughter and mother of deceased. It is evident that the petitioners have actually suffered monetary loss and mental agony due to death of deceased. Accordingly, petitioners are entitled for just and fair compensation in the present case.
Smt. Parninder Kaur & Ors. Vs. Umesh Kumar & Ors. Page 11 of 29MACP No. 343/18; FIR No. 485/17; PS. Alipur DOD: 15.04.2024
19. Section 168 of the Motor Vehicle Act 1988 enjoins upon the Claims Tribunal to hold an inquiry into the claim to make an award determining the amount of compensation which appears to it to be just and reasonable. The guiding principles for assessment of "just and reasonable compensation" in fatal case has been laid down by Hon'ble Supreme Court of India, in case titled as Smt. Anjali & Ors., Vs. Lokendra Rathod & Ors, in Civil Appeal No. 9014 of 202, decided on 06.12.2022 that: -
"The provisions of the Motor Vehicles Act, 1988 (for short, "MV Act") gives paramount importance to the concept of 'just and fair' compensation. It is a beneficial legislation which has been framed with the object of providing relief to the victims or their families. Section 168 of the MV Act deals with the concept of 'just compensation' which ought to be determined on the foundation of fairness, reasonableness and equitability. Although such determination can never be arithmetically exact or perfect, an endeavor should be made by the Court to award just and fair compensation irrespective of the amount claimed by the applicant/s. In Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr.3, this Court has laid down as under:
"16."Just compensation" is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well settled principles relating to award of compensation. It is not intended to be a bonanza, largesse or source of profit."
20. The Hon'ble Apex Court has held that the compensation should be just and is not expected to be a windfall or a bonanza nor it should be niggardly or a pittance. Reliance is placed on 2012 (8) SLT 676 titled K. Smt. Parninder Kaur & Ors. Vs. Umesh Kumar & Ors. Page 12 of 29 MACP No. 343/18; FIR No. 485/17; PS. Alipur DOD: 15.04.2024 Suresh Vs. New India Assurance Co. Ltd. The aforesaid Principle of law has also been reiterated by a landmark judgment of the Hon'ble Supreme court in 2017 (13) SCALE 12 : 2017 XI AD (SC) 113 titled National Insurance Co. Ltd. Vs. Pranay Sethi and Ors. Accordingly, the quantum of appropriate and adequate compensation to the victim of road accident is to be derived after assessment of various relevant parameters, as per law. Hereinafter, assessment is divided into several criteria, as applicable to the facts of the present case.
LOSS OF DEPENDENCY
21. The claimants/petitioners are the widow, minor daughter and mother of deceased. PW1 Smt. Parninder Kaur (widow of deceased) has deposed in her evidence by way of affidavit Ex. PW1/1 that deceased was 31 years of age at the time of accident and was working as Production Supervisor in M.K. Printech Pvt. Ltd and was earning Rs. 22,500/- per month at the time of accident. She further deposed that all the petitioners were dependent upon the deceased at the time of accident. She further deposed that deceased was the only bread earner in their family.
22. During cross-examination of PW1 (widow of deceased) on behalf of respondents, she admitted that she was not an eyewitness to the accident in question. She deposed that deceased was Xth passed but she had not brought any document in this regard. She further deposed that deceased Smt. Parninder Kaur & Ors. Vs. Umesh Kumar & Ors. Page 13 of 29 MACP No. 343/18; FIR No. 485/17; PS. Alipur DOD: 15.04.2024 was working as Production Supervisor with M/s. M.K. Printech Pvt. Ltd. for the last 2-3 years prior to the accident. She further deposed that she had no knowledge whether any appointment letter was issued by employer of deceased at the time of his appointment. She deposed that she was not aware whether deceased was getting the salary by cheque or cash. She further deposed that she was not aware whether deceased was filing any income tax return or not. She denied the suggestion that deceased was not earning Rs. 22,500/- per month while working with M/s. M.K. Printech Pvt. Ltd.
23. In order to prove the employment and income of deceased, petitioners have examined PW3 Sh. Papinder Singh who produced the record in respect of employment of deceased i.e. Salary Certificates for the months of November 2016 and March 2017 and exhibited the same as Ex. PW3/1(colly). He also produced the wages register for the period from April 2017 to November 2017, showing the salary of deceased at S.No. 6 and exhibited the same as Ex. PW3/2(colly). During his cross-examination on behalf of driver and owner, he deposed that he did not remember the exact period for which Sh. Harman Preet Singh had worked in their company and used to supervise the goods. He further deposed that deceased was well known to him. During his cross-examination on behalf of insurance company, he deposed that his company was in incorporation since the year 2014. He further deposed that in his company, appointment letter used to be issued to a person at the time of his/her appointment. He further deposed that he could Smt. Parninder Kaur & Ors. Vs. Umesh Kumar & Ors. Page 14 of 29 MACP No. 343/18; FIR No. 485/17; PS. Alipur DOD: 15.04.2024 not tell whether any appointment letter was issued by their company to Harmanpreet Singh or not. He further deposed that he was the active Director of aforesaid company. He further deposed that his company was not working and it was shut down due to lockdown. He further deposed that on 30.10.2017, there were about 32-33 employees in his company. He further deposed that he could not tell the exact date of employment of the deceased. He further deposed that in his company, an attendance register was being maintained. Similarly, the salary record of the employees was also being maintained. He volunteered that the salary of employees used to be disbursed through cheque. He further deposed that in his company, the salary used to be paid by both modes i.e. cash and cheque. He further deposed that in his company, the employees were covered under ESI scheme. He further deposed that he did not know whether any amount of compensation was paid to the deceased under ESI scheme. He further deposed that he was not aware whether any ESI number was allotted to each of the employee who were covered under ESI scheme. He admitted that salary record pertaining to deceased was available in his company. He further admitted that in Ex.PW3/2 (Colly), there was no signature of any employee against the column "signature with revenue stamp". He had further produced the documents regarding appointment letter and salary certificate(s) of deceased and collectively exhibited as Ex.PW3/PX1 (Colly) (12 sheets). He deposed that except documents Ex.PW3/PX1 (Colly), he did not have any documents pertaining to salary and employment of deceased. He denied the suggestion Smt. Parninder Kaur & Ors. Vs. Umesh Kumar & Ors. Page 15 of 29 MACP No. 343/18; FIR No. 485/17; PS. Alipur DOD: 15.04.2024 that Ex.PW3/PX1 (Colly) have been falsely prepared by him for the purpose of filing of Court record. He admitted that there was no reference number on Letter of Appointment dated 01.10.2016 (sheet No.1 of Ex.PW3/PX1 Colly).
24. After referring to the testimonies of PW1 & PW3 and the documents filed by the said witnesses, Ld. counsel for petitioners vehemently argued that monthly salary of deceased may be taken as Rs. 22,500/- as per the document Ex. PW3/1 at the time of accident in order to calculate the loss of dependency.
25. On the other hand, Ld. Counsel for the insurance company argued that there is no concrete evidence led by petitioners to establish the monthly income of deceased at the time of accident. Thus, loss of dependency should be calculated on the basis of notional income as per Minimum Wages Act applicable during the relevant period.
26. As per the document i.e. Salary Certificate(which is part of Ex. PW3/1), deceased was working with M.K. Printech Pvt. Ltd, Delhi as Sales Executive at the monthly salary of Rs. 22,500/- at the time of accident. It may be noted here that salary certificate (which is part of Ex. PW3/1) dated 30.11.2017 of deceased has already been placed on record by the petitioners at the time of investigation by the IO and the same was handed over to IO by them during investigation which itself proves the authenticity of the said Smt. Parninder Kaur & Ors. Vs. Umesh Kumar & Ors. Page 16 of 29 MACP No. 343/18; FIR No. 485/17; PS. Alipur DOD: 15.04.2024 document. It is quite clear that if the aforesaid document was procured one by the petitioners, it would have been filed by the petitioners during recording of their evidence not at the time of investigation of case. Moreover, it has been specifically stated by PW3 during his cross-examination by driver and owner that deceased had been working as a Supervisor in their company and used to supervise the goods. From the documents Ex. PW3/1(colly), Ex. PW3/2(colly) & Ex. PW3/PX1, it is apparent that deceased Sh. Harman Preet Singh was working as Sales Executive with M.K. Printech Pvt. Ltd., 25, Eklavya Vihar, Sector - 13, Rohini, Delhi at the time of accident. As per the document Ex. PW3/1, the gross salary of deceased was Rs. 22,500/- in the month of September 2017. The date of accident in the present case is 30.10.2017. In view of the aforesaid discussion, I deem it fit to accept the monthly salary of deceased as Rs. 22,500/- per month as on the date of accident. I am fortified in my view with the decision of Hon'ble Supreme Court passed in case titled "Mohammed Siddique & Anr. Vs. National Insurance Co. Ltd. & Ors.", Civil Appeal No. 79 of 2020, decided on 08.01.2020. The relevant paragraphs from S.No. 16 to 18 of the aforesaid decision are reproduced as under:-
xxxxx "16. But unfortunately the High Court thought that the employer should have produced salaryvouchers and other records including income tax returns, to substantiate the nature of the employment and the monthly income. On the ground that in the absence of other records, the salary certificate and the oral testimony of the Smt. Parninder Kaur & Ors. Vs. Umesh Kumar & Ors. Page 17 of 29 MACP No. 343/18; FIR No. 485/17; PS. Alipur DOD: 15.04.2024 employer could not be accepted, the High Court proceeded to take the minimum wages paid for the unskilled workers at the relevant point of time as the benchmark.
17. But we do not think that the approach adopted by the High court could be approved. To a specific question in cross−examination, calling upon PW−2 to produce the salary vouchers, he seems to have replied that his business establishment had been wound up and that the records are not available. This cannot be a ground for the High Court to hold that the testimony of PW−2 is unacceptable.
18. The High Court ought to have appreciated that the Court of first instance was in a better position to appreciate the oral testimony. So long as the oral testimony of PW−2 remained unshaken and hence believed by the Court of first instance, the High Court ought not to have rejected his evidence. After all, there was no allegation that PW−2 was set up for the purposes of this case. There were also no contradictions in his testimony. As against the testimony of an employer supported by a certificate issued by him, the High Court ought not to have chosen a theoretical presumption relating to the minimum wages fixed for unskilled employment. Therefore, the interference made by the High Court with the findings of the Tribunal with regard to the monthly income of the deceased, was uncalled for.
Xxxxx
27. In order to consider the age of deceased, the relevant document is his Aadhaar Card (Ex. PW1/D), wherein his recorded year of birth is 1986.
Petitioners have also filed copy of PAN Card (Ex. PW1/C) of deceased, wherein his date of birth is mentioned as 01.02.1986. Date of accident being Smt. Parninder Kaur & Ors. Vs. Umesh Kumar & Ors. Page 18 of 29 MACP No. 343/18; FIR No. 485/17; PS. Alipur DOD: 15.04.2024 30.10.2017, the age of deceased was more than 31 years as on the date of accident. Hence, the multiplier of 16 would be applicable in view of the case "Sarla Verma Vs. Delhi Transport Corporation", 2009 ACJ 1298 SC which has been reaffirmed by the pronouncement made by Constitutional Bench of Apex Court in the case titled as "National Insurance Company Ltd. Vs. Pranay Sethi & Ors.", passed in SLP(Civil) No. 25590/14 decided on 31.10.17.
28. For the purpose of future prospects, Hon'ble Supreme Court of India in Pranay Sethi's case (supra) has been pleased to discuss the applicable aspects of law pertaining to "additions" in the minimum wages on account of "inflation" for computation of compensation. It has been held by Hon'ble Apex Court in the afore-cited case that aspect of future prospects shall be a relevant consideration in computation of just and proper compensation even in cases where the deceased was self- employed. The guiding parameters laid down in Pranay Sethi's case (supra) have been reiterated by Hon'ble High Court of Delhi in appeal bearing MAC APP No. 798/2011 titled as Bajaj Allianz General Insurance Company Ltd. V. Pooja & Ors., decided on 02.11.17, allowing the addition of 40% on account of future prospects in such cases where the deceased was below the age of 40 years, if self-employed category. The addition on account of future prospects shall be 40% of the income of deceased.
Smt. Parninder Kaur & Ors. Vs. Umesh Kumar & Ors. Page 19 of 29MACP No. 343/18; FIR No. 485/17; PS. Alipur DOD: 15.04.2024
29. In the peculiar facts of the case, the widow of deceased remarried after lapse of more than 4 ½ years from the death of the deceased. It is relevant to mention here that widow of deceased was examined by this court under order X CPC, wherein she admitted the fact of remarried with Sh. Parminder Singh on 10.07.2022. It is also relevant to mention here that petitioner no. 1/widow of deceased had already handed over the legal custody of petitioner no. 3 who is minor daughter of deceased to petitioner no. 2 who is her mother in law vide Settlement Award dated 12.11.2022 passed by the competent bench of National Lok Adalat, Bathinda and exhibited the certified copy of said award as Ex. P-1(colly). She also gave affidavit dated 04.07.2022 in this regard and marked the same as Mark A.
30. As regards the dependency rights of a widow re-marrying are concerned, the settled position of law is that after the death of her husband, if the widow re-marries, there is no hindrance for the Tribunal to give the dependent widow, as on the date of accident, such share in the Award, which is her due by treating her as one of the entitled claimants. It is well-settled that the fact of re-marriage is not considered as a ground to deny, refuse or even reduce the Award of compensation. Our own Hon'ble High Court of Delhi in the case of "Dincy Devassy Vs. United India Insurance Co. & Ors.", MAC. APP. 26/19, decided on 12.12.2019, has been pleased to lay down the guiding principles in case of remarriage of a dependent widow for the purpose of a MACT case, wherein it has been held as under: -
Smt. Parninder Kaur & Ors. Vs. Umesh Kumar & Ors. Page 20 of 29MACP No. 343/18; FIR No. 485/17; PS. Alipur DOD: 15.04.2024 "Para-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 parents-in-law. Her decision to re-marry 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 re-married, 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 of her parents-in-law, who had lost their son...."
31. The present case is well guided by the pronouncement of Hon'ble High Court of Delhi in Dincy Devassy case (Supra). There is no bar under M.V Act against a widow from claiming compensation on account of her re-marriage. After the death of her husband, the widow continues to represent his estate, irrespective of her re-marriage, because she inherits part of the estate of her deceased husband. Motor Vehicle Act is a socio-welfare legislation and therefore, it is to be interpreted so as to fulfill its objective with which it was enacted. In the present case, widow of the deceased is the sole testifying witness for the purposes of proving the dependency upon the deceased for herself as well as other dependent claimants, who is mother and minor daughter of deceased. It is worth mentioning that although Smt. Parninder Kaur & Ors. Vs. Umesh Kumar & Ors. Page 21 of 29 MACP No. 343/18; FIR No. 485/17; PS. Alipur DOD: 15.04.2024 PW1/widow of deceased has remarried after the death of deceased but still she shall be entitled for compensation in the present case. The collective facts truly demonstrates the circumstances in which the widow of the deceased may have decided to remarry and the said fact shall not preclude her from inheriting the estate of her first husband, as she would have been entitled on the date of accident.
32. The monthly income of the deceased has been computed herein- above in para no. 26 of this judgment. As discussed, the deceased had three dependents i.e. widow, minor daughter and mother of deceased, whom he left behind. Accordingly, as per law, one third is to be deducted towards personal and living expenses of the deceased from his income as held in the case of Sarla Verma mentioned supra. Thus, the total of loss of dependency would come out to Rs. 40,32,000/- (Rs. 22,500/- X 2/3 X 140/100 X 12 X
16). Hence, a sum of Rs. 42,70,000/- (rounded off) is awarded under this head in favour of the petitioners.
LOSS OF LOVE & AFFECTION
33. Now considering the prayer of petitioners for grant of compensation on account of "Loss of Love & Affection" the binding legal position has been laid down by the celebrated judgment of Pranay Sethi's case (supra) and recent judgment titled New India Assurance Company Smt. Parninder Kaur & Ors. Vs. Umesh Kumar & Ors. Page 22 of 29 MACP No. 343/18; FIR No. 485/17; PS. Alipur DOD: 15.04.2024 Limited V. Somwati & Ors., Civil Appeal no. 3093 of 2020 dated 07.09.2020 of Supreme Court of India wherein it has been held that the petitioners are not entitled to be compensated under this head. Further, the Hon'ble High Court of Delhi in appeal titled as Pooja's case (supra), has been pleased to observe in para 18 of the judgment that the constitution bench decision in Pranay Sethi's case (supra) does not recognize any other non-pecuniary head of damages. Hence, no amount of compensation is being awarded under this head.
LOSS OF CONSORTIUM
34. In view of the judgment of Hon'ble Supreme Court of India in case titled as, Pranay Sethi case (supra), the Tribunal considers that both the petitioners i.e. parents of deceased are entitled for payment of Rs. 40,000/- each towards "loss of consortium". By way of pronouncement of Pranay Sethi case (supra), the Hon'ble Supreme Court of India has been pleased to hold that there shall be an increase of 10% on account of 'inflation' after a period of three years. Applying, the afore-cited binding law the The Hon'ble High Court of Delhi in National Insurance Co. Ltd. Ltd. V. LR's of Sukhbir Singh, MAC. APP. 518/2013 vide judgment pronounced on 13.07.2023 has been pleased to direct the entitlement of dependents to 10% increase under this head, though, the date of accident was of 2011 and the date of impugned award was of 2013. Accordingly, all the petitioners are Smt. Parninder Kaur & Ors. Vs. Umesh Kumar & Ors. Page 23 of 29 MACP No. 343/18; FIR No. 485/17; PS. Alipur DOD: 15.04.2024 entitled to a sum of Rs. 44,000/- (40,000+10%) each towards "loss of consortium".
LOSS OF ESTATE & FUNERAL EXPENSES
35. In view of the facts and circumstances of the present case and in view of decision of Hon'ble Apex Court in the case of Pranay Sethi (supra) which has been re-enforced in LR's of Sukhbir Singh (supra), the Tribunal considers that all the petitioners are also entitled for payment of Rs. 16,500/- (15,000+10%) on account of "loss of estate" and for equal payment of Rs. 16,500/- (15,000+10%) towards "funeral expenses".
The total compensation is assessed as under:-
1. Loss of dependency Rs. 40,32,000/-
2. Loss of Consortium Rs. 1,32,000/-
3. Loss of Estate & Funeral Rs. 33,000/-
Expenses Total Rs. 41,97,000/-
36. Now, the question which arises for determination is as to which of the respondents is liable to pay the compensation amount. Respondent no. 3/insurance company has not claimed exemption on account of any statutory breach as envisaged u/s.149(2) MV Act. Rather, it had given legal offer to the petitioners in the present case which was not acceptable to them. It is Smt. Parninder Kaur & Ors. Vs. Umesh Kumar & Ors. Page 24 of 29 MACP No. 343/18; FIR No. 485/17; PS. Alipur DOD: 15.04.2024 nowhere the case of insurance company that any term or condition of insurance policy was breached/violated by insured. Keeping in view the existence of valid insurance policy of the offending vehicle for the relevant period and in the absence of any statutory defences available to the insurance company, insurance company concerned is legally liable to pay the compensation amount, as determined hereinabove. Issue no. 2 is decided accordingly.
ISSUE NO. 3 RELIEF
37. In view of my finding on issues no. 1 & 2, I award a sum of Rs. 41,97,000/- (including interim award amount, if any) alongwith interest @ 7.5% per annum w.e.f date of filing the claim petition i.e. 19.05.2018 till the date of its realization, in favour of Lrs of deceased/petitioners and against the respondents. (Reliance placed on United India Insurance Co. Ltd. V. Baby Raksha & Ors, MAC APP. No. 36/2023 passed by Hon'ble Delhi High Court on 21.04.2023).
APPORTIONMENT
38. It is pertinent to mention here that statements of petitioners in terms of clause 29 of MCTAP were recorded on 04.08.2023 & 18.08.2023. Having regard to the facts and circumstances of the case and in view of the above discussed judgment on the point of re-marriage of widow of deceased, it is hereby ordered that out of total compensation amount, the petitioner no.
Smt. Parninder Kaur & Ors. Vs. Umesh Kumar & Ors. Page 25 of 29MACP No. 343/18; FIR No. 485/17; PS. Alipur DOD: 15.04.2024 1 Smt. Parninder Kaur shall be entitled to share amount of Rs. 13,00,000/- (Rupees Thirteen Lakhs Only) alongwith proportionate interest, the petitioner no. 2 namely Smt. Gurvinder Kaur shall be entitled to share amount of Rs. 13,00,000/- (Rupees Thirteen Lakhs Only) alongwith proportionate interest and petitioner no. 3 Baby Japleen Kaur shall be entitled to remaining amount Rs. 15,97,000/- (Rupees Fifteen Lakhs and Ninety Seven Thousand Only) alongwith proportionate interest.
39. Out of share amount of petitioner no. 1, a sum of Rs. 5,00,000/- (Rupees Five Lakhs Only), shall be immediately released to her through her bank account no. 38187779705, State Bank of India, Tis Hazari, Delhi, having IFSC SBIN0000726 and remaining amount alongwith interest amount are directed to be kept in the form of FDRs in the multiples of Rs. 25,000/- each for one month, two months, three months and so on and so forth having cumulative interest.
40. Out of share amount of petitioner no.2, a sum of Rs. 5,00,000/- (Rupees Five Lakhs Only), shall be immediately released to her through her bank account no. 20397259065, Indian Bank Allahabad, Tilak Nagar Branch, Delhi, having IFSC Code IDIB000T578 and remaining amount alongwith interest amount are directed to be kept in the form of FDRs in the multiples of Rs. 25,000/- each for one month, two months, three months and so on and so forth having cumulative interest.
Smt. Parninder Kaur & Ors. Vs. Umesh Kumar & Ors. Page 26 of 29MACP No. 343/18; FIR No. 485/17; PS. Alipur DOD: 15.04.2024
41. The entire share amount alongwith proportionate interest of petitioner no. 3 be kept in FDR for the period till she attains the age of majority and thereafter, entire amount be released to her in her bank account, as per rules. However, the said petitioner is at liberty to withdraw her monthly interest in order to meet her educational expenses through her grandmother/legal guardian Smt. Gurvinder Kaur who is petitioner no. 2 in the present case.
42. All the FDRs to be prepared as per aforesaid directions, shall be subject to the following conditions:-
(a) The Bank shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the claimant(s) i.e. the savings bank account(s) of the claimant(s) shall be an individual savings bank 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 amounts of the FDR(s) be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant(s) near the place of their residence.
(e) No loan, advance, withdrawal or pre-mature discharge be allowed on the fixed deposits without permission of the Court.
Smt. Parninder Kaur & Ors. Vs. Umesh Kumar & Ors. Page 27 of 29MACP No. 343/18; FIR No. 485/17; PS. Alipur DOD: 15.04.2024
(f) The concerned bank shall not to issue any cheque book and/or debit card to claimant(s). However, in case the debit card and /or cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount. The bank shall debit card(s) freeze the account of the claimant(s) so that no debit card be issued in respect of the account of the claimant(s) from any other branch of the bank.
(g) The bank shall make an endorsement on the passbook of the claimant(s) to the effect that no cheque book and/or debit card have been issued and shall not be issued without the permission of the Court and claimant(s) shall produce the passbook with the necessary endorsement before the Court on the next date fixed for compliance.
(h) It is clarified that the endorsement made by the bank alongwith the duly signed and stamped by the bank official on the passbook(s) of the claimant(s) is sufficient compliance of clause(g) above.
(i) The petitioner is directed to open a Motor Accident Claims Annuity (Term) Deposit Account (MACAD) in terms of order dated 07.12.2018 of Hon'ble Justice J.R. Midha in case titled as Rajesh Tyagi and Others Vs. Jaibir Singh and Others F.A.O No. 842/03 as per clause 31 of MCTAP and form VIII titled as Motor Accident Claims Annuity Deposit (MACAD) Scheme as directed in the said order.
(j) Concerned Manager, SBI, Rohini Court branch is further directed to disburse the FD amount in Motor Accident Claims Annuity Deposit (MACAD) Scheme account as directed by Hon'ble Delhi High Court vide order dated 07.12.18, on completing necessary formalities as per rules.
43. Respondent no. 3/Reliance General Insurance Co. Ltd., is directed to deposit the award amount with SBI, Rohini Courts branch within 30 days as per above order, failing which insurance company shall be liable to pay interest @ 12% p.a for the period of delay. Concerned Manager, SBI, Smt. Parninder Kaur & Ors. Vs. Umesh Kumar & Ors. Page 28 of 29 MACP No. 343/18; FIR No. 485/17; PS. Alipur DOD: 15.04.2024 Rohini Court Branch is directed to transfer the respective share amounts immediately to the aforementioned bank account of petitioners, on completing necessary formalities as per rules. He be 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 award amount starts earning interest from the date of clearance of the cheques. Copy of the award be given dasti to the petitioners and also to counsel for the insurance company for compliance. Copy of this award alongwith one photograph each, specimen signatures, copy of bank passbooks and copy of residence proof of the petitioners, be sent to Nodal Officer of SBI, Rohini Court, Branch, Delhi for information and necessary compliance. Form XV & Form XVII in terms of MCTAP are annexed herewith as Annexure-A. Copy of order be also sent to concerned M.M and DLSA as per clause 31 and 32 of MCTAP.
Digitally signed by RICHA RICHA MANCHANDA
MANCHANDA Date: 2024.04.15
Announced in the open 14:15:19 +0300
Court on 15.04.2024
(RICHA MANCHANDA)
Judge MACT-2 (North)
Rohini Courts, Delhi
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