Delhi District Court
Manju Devi Sharma vs Ramesh And Ors on 30 May, 2024
IN THE COURT OF SH.SHAILENDER MALIK, PRESIDING OFFICER:
MOTOR ACCIDENT CLAIMS TRIBUNAL-02, SHAHDARA,
KARKARDOOMA COURTS, DELHI
MACT No.1633/2016
Smt.Manju Devi Sharma
w/o Sh.Radhey Shyam Sharma
r/o H.No.1/11, Behta Hajipur,
Loni, Ghaziabad, U.P. ...Petitioner
Versus
(1)Ramesh (driver)
At: A-350, Gali No.5,
Meet Nagar, Wazirabad Road,
Shahdara, Delhi-110032.
(2)M/s B.A. Alloya Pvt. Ltd. (owner)
Registered office at
A-350, Gali No.5, Meet Nagar,
Wazirabad Road, Shahdara,
Delhi-110032.
Also at: Industrial Area,
Village Vikrampu Bannak Head
Udham Nagar, Dehradun-248003, U.K.
(3)M/s Magma HDI General Insurance Co. Ltd. (insurer)
Delhi office at:
9, Raja Dhirsain Marg,
Sant Nagar, East of Kailash,
New Delhi-110065.
Also at:
(1)Unit No.473, 4th Floor,
Agarwal Cyber Plaza-2,
Pitampura, Delhi-34.
(2)A-193, Okhla Industrial Area
Phase-I, New Delhi-110020.
Digitally signed by
MACT No.1633/2016 SHAILENDER Page 1
SHAILENDER MALIK
MALIK Date: 2024.05.30
16:41:31 +0530
Head office at:
Block-3B, B201-202,
Ecospace Business Park,
Ambuja Realty Campus,
Action Area-2, New Town,
Kolkata-700165.
Registered office at:
24, Park Street,
Kolkata-700016. ... Respondents
Date of Institution : 25.01.2016
Date of Arguments : 30.05.2024
Date of pronouncement : 30.05.2024
AWAR D
1. Present claim petition has been filed by the petitioner being legal heir of deceased Ajay Sharma. Facts in brief are that on 05.11.2014 at about 11.50 p.m. deceased Ajay Kumar was going towards Loni from Sewa Dham Road, Kabadi Market Chungi, Mandoli by motorcycle along with one Sandeep at a normal speed on left side of the road. When deceased reached Khasra no.15/24/2, Sewa Dham Road, KD Arya Store, in front of Mandoli, in the meanwhile a truck bearing registration no.UK-06CA-3002 being driven by its driver/respondent no.1 at very high speed, rashly and negligently came and hit the motorcycle of deceased with great force. As a result motorcycle fell down on the road and deceased sustained grievous injuries and taken to GTB Hospital where his MLC No.4605/2014 was prepared and doctor declared him 'brought dead'. Post mortem on the dead body of deceased was conducted in the mortuary of GTB Hospital. It is stated that accident occurred due to rash and negligent driving of respondent no.1. It is stated that offending vehicle was owned by MACT No.1633/2016 Digitally signed by Page 2 SHAILENDER SHAILENDER MALIK MALIK Date: 2024.05.30 16:41:43 +0530 respondent no.2 and it was insured with respondent no.3/insurance company.
2. It is stated that at the time of accident deceased Ajay Sharma was 24 years old and was working as Maintenance Supervisor in Golden Petal Banquet at Shiv Puri, Delhi and was earning Rs.17,000/- per month.
3. It is matter of record that initially the claim petition has been filed with the claim that the offending vehicle was insured with HDFC ERGO General Insurance company. However during the course of proceedings an application under Order 1 Rule 10 CPC was moved by said insurance company. Said application was allowed by ld. Predecessor of this Tribunal vide order dated 24.04.2017 and respondent no.3 herein i.e. Magma HDI General Insurance Company Limited has been impleaded as party.
4. Despite service of notice by way of publication, respondent no.1 and 2 did not appear before the Tribunal, therefore they were proceeded exparte on 04.10.2018.
5. Reply/WS to the claim petition has been filed by respondent no.3 wherein objections have been taken that claim petition does not disclose any cause of action as the vehicle in question was not at all involved in the accident for the reasons FIR has been registered against some unknown vehicle. It is pleaded that present case is a 'hit and run' case wherein some unknown vehicle caused the accident and ran away from the spot, however later on vehicle in question has been falsely involved. It is pleaded that in the absence of any eye witness or other cogent evidence no negligence can be attributed to driver of insured vehicle. R3/insurance company reserved its right in terms of Section 170 of M.V. Act. R3 has also taken the plea in terms of Section 158(6) and all MACT No.1633/2016 Digitally signed by Page 3 SHAILENDER SHAILENDER MALIK MALIK Date: 2024.05.30 16:41:52 +0530 the defences u/s 147, 149, 157 and 170 of M.V. Act. It is denied that the vehicle in question was involved in the alleged accident. However it is admitted that vehicle no.UK-06CA-3002 was insured with R3 under policy no.P0014100026/ 4103/252198 valid from 22.11.2013 to 21.11.2014 in the category of Commercial Vehicle Class (GCV) package policy. Contents of claim petition have been denied in totality.
6. On the basis of pleadings of parties following issues were framed by my Ld. Predecessor on 04.10.2018 :
(1)Whether respondent no.1 was driving the offending vehicle no.UK-06CA-3002 on 05.11.2014 at about 11.50 PM at Khasra No.1/24/2, Sewa Dham Road, KD Arya Store in front of Mandoli Road, Delhi, in rash and negligent manner and caused the death of deceased Ajay Sharma? OPP (2)Whether the petitioners are entitled for any compensation, if so and for what amount? OPP (3)Relief.
7. Vide order dated 25.01.2019, ld. Predecessor ordered that petitioner shall not be entitled for interest till next date i.e. 13.05.2019.
8. In order to substantiate her case petitioner has examined two three witnesses. PW1 is petitioner no.1 Manju Devi (mother of the deceased), PW2 is Deepak, who proved employment and salary record of deceased and PW3 is Sandeep, stated to be eye witness of the accident.
9. No evidence has been led on behalf of respondent no.1 and 2. On behalf of respondent no.3, one witness R3W1 Rahul Kumar Sharma, Deputy Manager of insurance company has been examined.
10. I have heard Sh.Anu Prakash, ld. counsel for petitioner and as well as Sh.Indrajeet Singh, ld. counsel for respondent no.3/insurance company. I have gone through their submissions and entire material Digitally signed MACT No.1633/2016 SHAILENDER by SHAILENDER Page 4 MALIK MALIK Date: 2024.05.30 16:42:01 +0530 available on record.
Issue No.1
11. It is settled proposition of law that an action founded on the principle of fault liability, the proof of rash and negligent driving of the offending vehicle is sine qua non. However, the standard of proof is not as strict as applied in criminal cases and evidence is to be tested on the touchstone of preponderance of probabilities. Holistic view is to be taken while dealing with the Claim Petition based upon negligence. Strict rules of evidence are not applicable in an inquiry conducted by the Claims Tribunal. Reference may be made to the judgments titled as New India Assurance Co. Ltd. v. Sakshi Bhutani & Others (MAC APP. No. 550/2011 decided on 02.07.2012), Bimla Devi & Others v. Himachal Road Transport Corporation & Others (2009) 13 SC 530, Parmeshwari v. Amirchand & Others 2011 (1) SCR 1096 & Mangla Ram v. Oriental Insurance Company Ltd. & Others 2018 Law Suit (SC) 303.
12. PW1 Smt.Manju Devi though deposed in her deposition regarding the occurrence of accident, however it is matter of record that she was not present at the time of accident.
13. Petitioner has also examined PW3 Sandeep who deposed that he is eye witness of the accident and was accompanying the deceased at the time of accident. PW3 stated that on 05.11.2014 at about 11.50 PM deceased Ajay Kumar was going towards Loni from Sewa Dham Road Kabadi Market Chungi, Mandoli by motorcycle along with PW3 at a normal speed and on left side of road. PW3 stated that when they reached Khasra no.15/24/2, Sewa Dham Road, KD Arya Store, in front of Mandoli, Delhi, in the meanwhile a truck bearing no.UK-06CA-3002 which was being driven by its driver/respondent no.1 at very high speed and in rash MACT No.1633/2016 Digitally signed by Page 5 SHAILENDER SHAILENDER MALIK MALIK Date: 2024.05.30 16:42:10 +0530 and negligent manner by violating traffic rules came and hit the motorcycle with a great force. PW3 stated that as a result motorcycle fell down on the road and deceased sustained grievous injuries and he was taken to GTB Hospital in PCR Van where doctor declared him as "brought dead". PW3 stated that in GTB Hospital MLC No.460/52014 of deceased was prepared. PW3 proved post mortem report of the deceased as Ex.PW3/B.
14. It is argued by the counsel for the petitioner Sh.Anu Prakash that evidence of PW3 eye witness to the accident is sufficient to establish the rash and negligent driving of the offending vehicle. On the other hand Sh.Indrajeet Singh, ld. Counsel for the insurance submitted that the accident in question was in fact a hit and run case, later in order to take the compensation from insurance company, vehicle no.UK-06CA-3002 was falsely implicated in the present case. Ld. Counsel for the insurance further argued that even there are no police case documents to show that the driver of above mentioned vehicle no.UK-06CA-3002 was prosecuted for criminal case of accident in question. He submits that even the accident information report proved in the evidence of PW1 Ex.PW1/2 also mentions that local police filed the information stating that it was a hit and run case as even in the FIR, no reference of the registration number of offending vehicle was given.
15. Having considered the submissions and going through the record and evidence, at the outset it be noted that when during the inquiry before MAC Tribunal, it has to be decided whether the offending vehicle is involved in the accident and that it is due to rash and negligent driving of the offending vehicle accident occurred, such finding is to be arrived at independently. Evidence to be brought on the record must however be sufficient to prove the involvement of vehicle as well as rash and negligent MACT No.1633/2016 Digitally signed by SHAILENDER Page 6 SHAILENDER MALIK MALIK Date: 2024.05.30 16:42:18 +0530 driving of that vehicle due to which accident occurred, atleast by preponderance of probability. The assessment of evidence in an inquiry of MACT case is not like the appreciation of evidence as is required in a criminal or even in civil proceedings. There must be sufficient evidence on the record to the satisfaction of the Tribunal establishing the above said two facts by preponderance of probability, the quality and quantity of evidence may not be as much as required in a trial in criminal or civil case.
16. In the present case no doubt when FIR No.560/2014 was registered at PS Harsh Vihar, regarding accident in question, in FIR no details of offending vehicle were given. But it is again matter of record that even in that criminal case also the truck/offending vehicle no.UK- 06CA-3002 was seized during the investigation and copy of seizure memo of that truck is lying on the judicial record. It is also matter of record that said truck was later released on superdari in that criminal case. No doubt there is no report u/s 173 Cr.PC showing that police after investigation concluded to prosecute respondent no.1 being driver of vehicle no. UK- 06CA-3002 to be the one involved in the accident. However as noted above, this Tribunal has to assess the evidence independently. Tribunal cannot be dependent on the findings of police investigation this way or that way. Police documents of criminal case of the accident can at the most be corroborative nature. Tribunal has to examine the evidence led before it.
17. In the present case eye witness has been examined as PW3 who as per the case of the petitioner was accompanying and riding with deceased on the same motorcycle which was being driven by the deceased, at the time of accident. Examination in chief of PW3 has already been discussed above. PW3 was cross examined at length, however to the assessment of this Tribunal nothing substantive came in the cross MACT No.1633/2016 Digitally signed Page 7 by SHAILENDER SHAILENDER MALIK MALIK Date: 2024.05.30 16:42:27 +0530 examination to render the testimony of PW3 to be unreliable. Rather PW3 remained consistent, cogent and specific in his entire deposition. In cross examination PW3 testified that on the day of accident he had closed his shop and he knew deceased as he was his friend and he was accompanying with him at the time of accident. PW3 stated that he was a pillion rider. PW3 denied the suggestion that he or deceased were not wearing the helmet. Witness further stated that he also received injuries in the accident. PW3 says that he noted down the registration number of offending vehicle being no.UP-06CA-3002. PW3 further says that the driver of the offending vehicle fled away from the place of accident along with the vehicle. PW3 says that he did not make the call the police after the accident. PW3 says that police reached at the spot and took the deceased to the hospital and he accompanied with the police officials till the hospital. PW3 says that police made inquiries from him regarding the accident but he is not aware if his statement was recorded or not at that time.
18. Thus from the above discussed deposition of PW3, nothing came in cross examination to show that witness was not present at the place of accident or that he is unworthy of any reliance. No doubt witness had not called the police, or that FIR has not been registered at his instance mentioning the details of vehicle in question but such aspects are very natural and normal. Every person has different tendencies to react to any situation. In this case PW3 has nowhere suggested in his entire cross examination that he was not accompanying with the deceased or that he was not the eye witness. Only suggestion given to PW3 is that accident has not occurred by rash and negligent driving of truck no.UK-06CA-3002. Another suggestion is that accident occurred due to negligence of deceased. Both these suggestions/defences are apparently unsustainable in the facts Digitally signed MACT No.1633/2016 by SHAILENDER Page 8 SHAILENDER MALIK MALIK Date: 2024.05.30 16:42:36 +0530 and circumstances of the case.
19. When the presence of the PW3 and that he was accompanying with the deceased at the time of accident has not been disputed in the entire evidence of PW3, when the evidence of PW3 is otherwise cogent and believable, there is no reason why this Tribunal should not rely upon the testimony of PW3. Evidence of PW3 not only establish the manner in which accident occurred, further establish that accident occurred due to rash and negligent driving of respondent no.1 while driving vehicle no.UK- 06CA-3002. Important in this context is to also note that PW3 was not cross examined at all on behalf of driver, owner of the offending vehicle. No witness has been examined on behalf of respondent no.1 and 2. In the opinion of this Tribunal this aspect assumes importance when otherwise insurance is taking the plea that vehicle no.UK-06CA-3002 was not involved in he accident. It was all the more necessary for respondent no.1 or 2 to examine the driver or atleast insurance company/respondent no.3 to summon the driver of the offending vehicle as a witness to substantiate its plea/defence which has not been done. Thus there is sufficient material available establishing that accident occurred due to rash and negligent driving of respondent no.1 while driving offending vehicle no.UK-06CA- 3002.
Issue No.2
20. In view of the finding on issue no.1, petitioner is entitled to get compensation, however, the quantum of compensation still needs to be adjudicated. Section 168 of Motor Vehicles Act, 1988 enjoins upon the claim Tribunal to hold an inquiry into the claim to make an award determining the amount of compensation, which appears to be just and reasonable. As per settled law, compensation is not expected to be windfall MACT No.1633/2016 Digitally signed by SHAILENDER Page 9 SHAILENDER MALIK MALIK Date: 2024.05.30 16:42:44 +0530 or a bonanza nor it should be pittance. A man is not compensated for the physical injury, he is compensated for the loss which he suffers as a result of that injury (Baker v. Willoughby (1970) Ac 467 at page 492 per Lord Reid).
COMPUTATION OF COMPENSATION
21. The present case pertains to the death of deceased Ajay Sharma. In death cases, the guidelines for computation of compensation have been laid down by Hon'ble Supreme Court in case of Sarla Verma and Others v. Delhi Transport Corporation & Anr. (2009) 6 Supreme Court Cases 121. Further, the guidelines have been reiterated by the Constitution Bench of Hon'ble Supreme Court in a case titled as National Insurance Company vs. Pranay Sethi & Ors. Decided on 31.10.2017, laying down the general principles for computation of compensation in death cases. The relevant paras of the judgment are reproduced here as under:
"18. Basically only three facts need to be established by the claimants for assessing compensation in the case of death:
(a) age of the deceased;
(b) income of the deceased; and
(c) the number of dependents.
These issues to be determined by the Tribunal to arrive at the loss of dependency are:
(i) additions/ deductions to be made for arriving at the income;
(ii) the deduction to be made towards the personal living expenses of the deceased; and
iii) the multiplier to be applied with reference to the age of the deceased.
If these determinations are standardized, there will be uniformity and consistency in the decisions.
MACT No.1633/2016 Digitally signed by
Page 10
SHAILENDER SHAILENDER
MALIK
MALIK Date: 2024.05.30
16:42:53 +0530
There will be lesser need for detailed evidence. It will also be easier for the insurance companies to settle accident claims without delay.
19. To have uniformity and consistency, the Tribunals should determine compensation in cases of death, by the following well-settled steps:
Step-1 (Ascertaining the multiplicand) The income of the deceased per annum should be determined. Out of the said income a deduction should be made in regard to the amount which the deceased would have spent on himself by way of personal and living expenses. The balanc expired e which is considered to be the contribution to the dependent family, constitutes the multiplicand.
Step-2 (Ascertaining the multiplier) Having regard to the age of the deceased and period of active career, the appropriate multiplier should be selected. This does not mean ascertaining the number of years he would have lived or worked but for the accident. Having regard to several imponderables in life and economic factors, a table of multipliers with reference to the age has been identified by this Court. The multiplier should be chosen from the said table with reference to the age of the deceased.
Step-3 (Actual Calculation) The annual contribution to the family(multiplicand) when multiplied by such multiplier gives the 'loss of dependency' to the family.
Thereafter, a conventional amount in the range of Rs.5,000/- to Rs.10,000/- may be added as loss of estates. Where the deceased is survived by his Digitally signed MACT No.1633/2016 by SHAILENDER Page 11 SHAILENDER MALIK MALIK Date: 2024.05.30 16:43:00 +0530 widow, another conventional amount in the range of Rs.5,000 to Rs.10,000 should be added under the head of loss of consortium. But no amount is to be awarded under the head of pain, suffering or hardship caused to the legal heirs of the deceased.
The funeral expenses, cost of transportation of the body (if incurred) and the cost of any medical treatment of the deceased before death (if incurred) should also be added."
22. Therefore, in view of the aforesaid judgment, it is essential to take into consideration the following parameters:-
PECUNIARY DAMAGES:
Age of deceased :
23. Petitioner (PW1) in her evidence has proved secondary school certificate of deceased Ajay as Ex.PW1/5 wherein age of deceased is mentioned as 15.12.1990. As per educational certificate of deceased, his age on the date of accident i.e. 05.11.2014 was 23 years 10 months. This document in the opinion of this Tribunal is conclusive proof of age of deceased. Thus, age of deceased as on the date of accident was 23 years 10 months.
Assessment of Income of deceased :
24. Petitioner (PW1) in her deposition stated that her deceased son was unmarried and working as Maintenance Supervisor in Golden Petal Banquet at Shiv Puri, Delhi and he was earning Rs.17,000/- per month.
PW1 proved salary certificate of the deceased as Ex.PW1/7. To prove the employment and salary of deceased, petitioner has also examined PW2 Deepak, Manager of Golden Petal Banquet. PW2 stated that certificate Ex.PW1/7 has been issued from Golden Petal Banquet in favour of Ajay Digitally signed MACT No.1633/2016 by SHAILENDER Page 12 SHAILENDER MALIK MALIK Date: 2024.05.30 16:43:12 +0530 Sharma who was working as Maintenance Supervisor since April 2013. PW2 stated that Ajay Sharma was drawing salary of Rs.17,000/- per month.
25. Counsel for the petitioner submits that evidence of PW1 gets corroboration from evidence of PW2 proving the salary of the deceased to be Rs.17,000/- while he was working as Maintenance Supervisor in a banquet.
26. Counsel for the insurance on the other hand submitted that document Ex.PW1/7 ought not to have been exhibited as it has not been proved by alleged subscriber of the same, he further submits that evidence of PW2 is also not of any value when the witness has not proved very employment of deceased in the said banquet.
27. PW1 Smt.Manju Devi though stated in her examination in chief that her son was working as Maintenance Supervisor in Golden Petal Banquet at Shiv Puri Delhi and was earning Rs.17,000/- per month. PW1 though exhibits a salary certificate of deceased as Ex.PW1/7, but in the opinion of this Tribunal mere exhibition of such document is not proof of the same, firstly because document was neither pertaining to PW1, nor was subscribed by her. The subscriber of that document has never appeared in the witness box. Thus document does not prove the factum of salary of the deceased. Another aspect to note in this context is that if at all according to the claim of the petitioner deceased was drawing salary of Rs.17,000/- per month, best evidence for proving such income of the deceased was bank statement of the deceased showing credit of such amount in his bank account which has not been proved.
28. Now coming to evidence of PW2 Deepak Kumar who is stated to be working in Golden Petal Banquet. This witness has not proved as in which capacity he is working in that banquet and has not proved any MACT No.1633/2016 Digitally signed by SHAILENDER Page 13 SHAILENDER MALIK MALIK Date: 2024.05.30 16:43:25 +0530 authority letter for giving evidence on behalf of owner/firm of that banquet. PW2 further admits in cross examination that he do not have any documents regarding employment of deceased Ajay Sharma in the banquet. PW2 though mechanically refers to same salary certificate Ex.PW1/7, but has also not proved this document as he has not even mentioned that this document bears the signatures of whom, as perusal of that document show that someone has signed in the capacity of partner of the firm, detail of partnership firm and detail of the partners has also not been given by PW2. Thus, this Tribunal finds that there is insufficient evidence for proving the salary of the deceased to be Rs.17,000/-. However it is matter of record that secondary school examination certificate of the deceased is on record which is Ex.PW1/5 and there is no dispute on the record that deceased was matriculate. In such situation this Tribunal would take the income of the deceased notionally at parity with minimum wages of matriculate worker at the time of accident which is Rs.10,478/- per month. Application of Multiplier:
29. As held above, deceased was aged 23 years 10 months at the time of accident. An appropriate multiplier has to be determined for computation of compensation. The judgment titled as Sarla Verma v. DTC (2009) 6 SCC 121 is relevant to consider the multiplier. In Para 21 of the judgment, the guidelines for the multiplier were laid down in accordance with age are as under:
MULTIPLIER AGE GROUP OF DECEASED
M-18 Age group between 15 to 20 &
21 to 25 years)
M-17 Age group between 26 to 30 yrs
M-16 Age group between 31 to 35 yrs
Digitally signed
MACT No.1633/2016 by SHAILENDER
SHAILENDER MALIK Page 14
MALIK Date: 2024.05.30
16:43:33 +0530
M-15 Age group between 36 to 40 yrs
M-14 Age group between 41 to 45 yrs
M-13 Age group between 46 to 50 yrs
M-11 Age group between 51 to 55 yrs
M-9 Age group between 56 to 60 yrs
M-7 Age group between 61 to 65 yrs
M-5 Age group between 66 and
above
30. In view of the above, multiplier of 18 has to be applied against the age bracket of 21 to 25 years to determine the compensation. Future Prospects:
31. This issue was considered by the Hon'ble Supreme Court in the case of Pranay Sethi & Others (Supra). Relevant parts of the judgment are reproduced here as under:
"(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.
(iv) In case, the deceased was self-employed 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 MACT No.1633/2016 Digitally signed Page 15 by SHAILENDER SHAILENDER MALIK MALIK Date: 2024.05.30 16:43:40 +0530 computation. The established income means the income minus the tax component."
32. Since on the day of accident deceased was aged around 24 years of age and was self employed, in view of said fact this Tribunal finds that 40% of the income of deceased (aged below 40 years) has to be considered towards future prospects.
Deduction towards Personal Living Expenses:
33. After choosing the age, multiplier and income of the deceased, necessary deductions have to be made out of the income of the deceased towards his personal expenses. Hon'ble Supreme Court in case titled as Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65, in para 30, laid down the necessary deductions towards personal living and expenses of deceased as under :
Deductions out of earning of the Number of
deceased dependents
Where dependent is 1 Half
Where the number of dependent family 1/3rd
members is 2 to 3
Where the number of dependent family 1/4th
members is 4 to 6
Where the number of dependent family 1/5th
members exceeds 6 (six)
34. Instant claim petition has been filed by only one petitioner i.e. mother of the deceased. Since, the deceased was survived by one dependent, half of the income of the deceased is to be deducted towards his Digitally signed MACT No.1633/2016 by SHAILENDER SHAILENDER MALIK Page 16 MALIK Date: 2024.05.30 16:43:47 +0530 personal living expenses.
NON-PECUNIARY DAMAGES:
35. In case of Pranay Sethi (Supra), a compensation of Rs.40,000/-, 15,000/- and Rs.15,000/- respectively has been fixed on account of loss of consortium, loss of estate and funeral expenses. Therefore, a compensation of Rs.40,000/-, 15,000/- and Rs.15,000/- respectively on account of loss of consortium, loss of estate and funeral expenses is required to be granted and further, it is required to be enhanced @ 10% in every three years. Therefore, a compensation of Rs.48,000/-, 18,000/- and Rs.18,000/- respectively on account of loss of consortium, loss of estate and funeral expenses is required to be granted. Further, in view of recent decision of Hon'ble Supreme Court in the case titled as United India Insurance Co. Ltd. Vs. Satinder Kaur @ Satwinder Kaur & Ors., Civil Appeal no. 2705 of 2020, decided on 30.06.2020, loss of consortium has to be fixed for each of the LRs. Since, the deceased was survived by seven legal heirs, therefore, the claimants are entitled to a sum of Rs.84,000/- (48,000 + 18,000 + 18,000) under this head.
36. Considering the aforementioned factors, the total compensation is calculated as under:
S. No. Head Amount Awarded 1. Monthly income of deceased (A) Rs.10,478/- 2. Add future prospect @ 40% (B) Rs.4,191/-
3. Less half towards personal and living Rs.7,334.50 expenses of the deceased (C)
4. Monthly loss of dependency (A+B)- Rs.7,334.50 C=D
5. Annual loss of dependency (Dx12) Rs.88,014/-
Digitally signedMACT No.1633/2016 by SHAILENDER
SHAILENDER MALIK
Page 17
MALIK Date: 2024.05.30
16:43:54 +0530
6. Multiplier (E) 18
7. Total loss of dependency Rs.15,84,252/-
(Dx12xE=F)
8. Compensation for loss of consortium Rs.48,000/-
(G)
9. Compensation for loss of estate (H) Rs.18,000/-
10. Compensation for funeral expenses Rs.18,000/-
(I) Total compensation (F + G + H + I) Rs.16,68,252/-
37. Thus, petitioners in this case shall be entitled to a total compensation of Rs.16,68,252/- only.
INTEREST ON AWARD
38. Petitioner shall also be entitled to interest @ 8% per annum on the award amount from the date of filing of the petition till realization. LIABILITY
39. Now, the question arises as to which of the respondent is liable to pay the compensation amount. It is argued by ld. counsel for insurance company that at the time of accident respondent no.1 was not holding valid licence and despite issuing notice to driver/owner to produce DL, they failed to do so and thus insurance company is liable to pay any amount of compensation.
40. In support of its plea, respondent no.3 examined one witness R3W1 Rahul Kumar Sharma who by way of his affidavit deposed that the truck no.UP-06CA-3002 was insured by the insurance company under policy Ex.R3W1/2. Witness says that DL of the driver, permit and fitness of the vehicle has not been brought on record by respondent no.1 and 2. Therefore R3 sent a notice to owner under Order 12 rule 8 CPC for Digitally signed MACT No.1633/2016 by SHAILENDER Page 18 SHAILENDER MALIK MALIK Date: 2024.05.30 16:44:03 +0530 producing DL, permit and fitness vide notice Ex.R3W1/3 and Ex.R3W1/4, however despite receipt of notice R2 has not produced DL which clearly shows that the insured committed breach of terms and conditions of insurance policy by entrusting the vehicle to respondent no.1 who was not having a valid DL at the time of accident.
41. Having considered the evidence of R3W1, this Tribunal is of considered view that mere exhibition of a document is not a proof in itself, there must be a document proved on the record showing the correct address of the owner, driver of the offending vehicle on which the notice has been duly delivered. In the absence of same, no presumption can be drawn regarding due service of notice only by exhibiting postal receipts. Postal receipts do not specifically mention the correct address of respondent no.1 and 2. Even no tracking report showing due service of such notice uponder respondent no.1 and 2 has been placed on record. Thus no assumption can be drawn regarding service of notice. As a consequence thereof the amount of compensation is ordered to be paid by respondent no.3 i.e. insurance company.
Relief
42. This Tribunal awards a compensation of Rs.16,68,252/- to the petitioner along with interest @ 8% per annum from the date of filing of petition till realization to be paid by respondent no.3. Amount of interim award, if any, be deducted from the compensation amount along with the waiver of interest, if any, as directed by the Tribunal during the pendency of this case. The respondent no.3 is directed to deposit the award amount in A/c no.20780110171912 (IFSC Code UCBA0002078), UCO Bank, Karkardooma, Delhi, of PO MACT, Shahdara, through RTGS/ NEFT, Digitally signed MACT No.1633/2016 SHAILENDER by SHAILENDER Page 19 MALIK MALIK Date: 2024.05.30 16:44:10 +0530 within 30 days from today. Respondent no.3 is also directed to give notice regarding deposit of the said amount to the petitioners. Disbursement and Apportionment of Award Amount
43. The awarded amount is proportioned as under:
(i) A sum of Rs.1,66,252/- is directed to be released into the saving account of petitioner (mother of deceased) and amount of Rs.15,02,000/- along with interest on entire awarded amount is directed to be kept in her name with UCO Bank, Karkardooma Courts, Delhi in Motor Accident Claims Annuity Deposit (MACAD) in the form of 60 monthly FDRs (fixed deposit receipts), payable in equal amounts for a period of 1 to 60 months in succession, as per the scheme formulated by Hon'ble Delhi High Court vide order dated 07.12.2018 in FAO No. 84/2003, titled as Rajesh Tyagi & Others v.
Jaibir Singh & Others.
44. The amount of FDRs on maturity shall directly be released in petitioner's MACT Saving Bank Account.
Direction to the petitioners
45. The petitioner shall open a saving bank account near the place of her residence. Further, the bank of petitioner is directed to comply with 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 i.e., the savings bank account of the claimant 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.
(c) The monthly interest be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant near the place of their residence.
(d) The maturity amounts of the FDR be credited by
MACT No.1633/2016 Digitally signed Page 20
by SHAILENDER
SHAILENDER MALIK
MALIK Date: 2024.05.30
16:44:17 +0530
Electronic Clearing System (ECS) in the savings bank account of the claimant 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.
(f) The concerned bank shall not issue any cheque book and/or debit card to claimant. 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 so that no debit card be issued in respect of the account of the claimant from any other branch of the bank.
(g) The bank shall make an endorsement on the passbook of the claimant 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 shall produce the passbook with the necessary endorsement before the Court on the next date fixed for compliance.
46. File be consigned to Record Room.
Digitally signed by SHAILENDER SHAILENDER MALIK
MALIK Date: 2024.05.30
16:44:25 +0530
Announced in the open Court ( Shailender Malik )
on 30.05.2024 PO MACT-02/SHD/KKD
MACT No.1633/2016 Page 21