Delhi District Court
Sh. Amrik Singh (Husband Of Deceased) vs Sh. Younesh Khan on 29 April, 2022
IN THE COURT OF SH. PRITAM SINGH:PRESIDING OFFICER:MOTOR
ACCIDENT CLAIMS TRIBUNAL:(WEST-01):THC:DELHI
MACT Case No.303/2019
CNR No.-DLWT01-003640-2019
1. Sh. Amrik Singh (Husband of deceased)
S/o Late Sh. Nanak Chand
2. Master Simar Preet Singh
Age 15 years
S/o Sh. Amrik Singh
(Being minor through his
father/natural Guardian
Sh. Amrik Singh/petitioner no.1.)
Both residents of
H. No. 224, Block B-1,
Ram Mandir, Paschim Vihar,
New Delhi-110063 .......... Petitioners
Versus
1. Sh. Younesh Khan
S/o Sh. Lal Mohammad
R/o E-365, Phase-2, Nithari,
P. S. Aman Vihar, Delhi
2. Sh. Dharmender Singh
S/o Sh. Jagdish Singh
R/o H. No. 600, Bhaiya Chowk,
Mahipalpur, New Delhi-110037
3. M/s Reliance General Insurance Co. Ltd.
At 60, Okhla Industrial Estate,
Phase-III, Opposite State Bank of India,
New Delhi
Policy Issing office at:
MACT No. 303/2019
Amrik Singh (LRs of deceased) vs. Younesh Khan & Ors. Page No. 1/28
Digitally signed
PRITAM by PRITAM
SINGH
SINGH Date: 2022.04.29
16:37:18 +0530
570, Naigaum, Cross Road,
Next Royal Industrial Estate, Wadala(W)
Mumbai-400031
Insurance Policy No.1304542340000226
Valid from 05.08.2014 to 04.08.2015 ......... Respondents
Date of Institution: : 08.05.2019
Date of reserving order/judgment : 19.04.2022
Date of pronouncement: : 29.04.2022
AWAR D
FORM-V
COMPLIANCE OF THE PROVISIONS OF THE MODIFIED CLAIMS TRIBUNAL AGREED PROCEDURE
1. Date of the accident 09.06.2015
2. Date of filing of Form-I - First FAR is not filed in the present Accident Report (FAR) case
3. Date of delivery of Form-II to the Form-II not filed in the present victim(s) case
4. Date of receipt of Form-III from the Form-III not filed in the Driver present case
5. Date of receipt of Form-IV from the Form-IV not filed in the Owner present case
6. Date of filing of the Form-V-Interim Form-V not filed in the Accident Report (IAR) present case
7. Date of receipt of Form-VIA and Form-VIA and VIB not filed Form-VIB from the Victim(s) in the present case
8. Date of filing of Form-VII - Detailed DAR not filed in the present Accident Report (DAR) matter as accident in question took place out of the MACT No. 303/2019 Amrik Singh (LRs of deceased) vs. Younesh Khan & Ors. Digitally signed Page No. 2/28 by PRITAM PRITAM SINGH Date:
SINGH 2022.04.29 16:37:26 +0530 jurisdiction of this Court.
9. Whether there was any delay or NA deficiency on the part of the Investigating Officer? If so, whether any action/ direction warranted?
10. Date of appointment of the 06.11.2019 Designated Officer by the Insurance Company
11. Whether the Designated Officer of the Yes Insurance Company submitted his report within 30 days of the DAR?
12. Whether there was any delay or NO deficiency on the part of the Designated Officer of the Insurance Company? If so, whether any action/direction warranted?
13. Date of response of the claimant(s) to Legal offer was not filed by the offer of the Insurance Company the insurance company
14. Date of the award 29.04.2022
15. Whether the claimant(s) was/were Yes directed to open savings bank account(s) near their place of residence?
16. Date of order by which claimant(s) 13.12.2021 was/were directed to open savings bank account(s) near his place of residence and produce PAN Card and Aadhaar 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
17. Date on which the claimant(s) 13.12.2021 MACT No. 303/2019 Amrik Singh (LRs of deceased) vs. Younesh Khan & Ors. Page No. 3/28 Digitally signed by PRITAM PRITAM SINGH SINGH Date:
2022.04.29 16:37:32 +0530 produced the passbook of their savings bank account near the place of their residence along with the endorsement, PAN Card and Adhaar Card?
18. Permanent Residential Address of the H. No. 224, Block B-1, Ram claimant(s) Mandir, Paschim Vihar, New Delhi-110063
19. Whether the claimant(s) savings bank Yes account(s) is near his place of residence?
20. Whether the claimant(s) was/were Yes examined at the time of passing of the award to ascertain his/their financial condition?
1. This judgment-cum-award shall decide the petition under Section 166 and 140 of Motor Vehicle Act 1988 as amended up to date (hereinafter referred to as the 'Act') filed by petitioners for grant of compensation for the death of the deceased Smt. Gurmeet Kaur in the road vehicular accident. The petitioners No.1 Amrik Singh is the husband of the deceased and Master Simar Preet Singh is the minor son of the deceased in the present petition.
2. Brief facts of the case are that on 09.06.2015 at about 5:05 to 5:10 PM, the deceased Gurmeet Kaur along with her family, other relatives and friends were going to Maklodganj, Dharamshala, Himachal Pradesh in the Tempo Traveler bearing registration No. DL-1VC-0138 which was being driven by the respondent no.1 and they had hired the said tempo traveler for journey from Delhi to Himachal Pradesh. It has been further stated that at MACT No. 303/2019 Amrik Singh (LRs of deceased) vs. Younesh Khan & Ors. Page No. 4/28 Digitally signed by PRITAM PRITAM SINGH SINGH Date: 2022.04.29 16:37:37 +0530 about 5:10 PM, the driver of the offending vehicle was driving the said tempo traveler in a rash and negligent manner and when they reached near Hero Honda Agency, UNA (H.P), then, the respondent no.1 struck his vehicle into a truck/canter bearing registration No. HR-19A-0227 coming from the opposite side/front side. It has been further stated that as a result of forceful collusion of the tempo traveler with the truck/canter, the passengers sustained grievous injuries and the deceased Gurmeet Kaur also suffered grievous injuries. It has been further stated that the deceased Gurmeet Kaur was shifted to Fortis Hospital, Mohali, Punjab where she was declared brought dead on the night of 09/10.06.2015 and her post mortem was conducted in Fortis Hospital.
3. As a result of the abovesaid accident, as per the case of the petitioner, FIR No. 173/2015 dated 09.06.2015 U/s 279/304A IPC was registered with PS UNA Sadar District Una Himachal Pradesh against the respondent no.1.
4. It has been further stated that at the time of accident, the deceased was aged about 54 years and the deceased was a business woman and earning Rs.50,000/- per month. It has been further stated that the deceased is survived by her husband and son.
5. In total, the petitioner has claimed a sum of Rs.20,00,000/- (Rupees Twenty Lakhs Only) on account of compensation.
6. It has been further stated that the respondent no.1 being the driver of the offending vehicle, the respondent no.2 being the owner of the offending vehicle and the respondent No. 3 being the Insurer of the offending MACT No. 303/2019 Amrik Singh (LRs of deceased) vs. Younesh Khan & Ors. Page No. 5/28 Digitally signed by PRITAM PRITAM SINGH SINGH Date: 2022.04.29 16:37:43 +0530 vehicle are jointly and severally liable to pay the compensation to the petitioners.
7. A joint reply has been filed by the respondents No.1 & 2 stating therein that the driver of the offending vehicle was having valid driving license to drive the alleged offending vehicle. It has been further stated that the victim/injured was herself negligent on his part and there is no fault on the part of the respondents no.1 & 2. It has been further stated that the vehicle was fully insured with M/s Reliance General Insurance co. ltd. Vide policy no. 1304542340000226 valid upto 04.08.2015. It has been prayed that the present claim petition may kindly be dismissed.
8. Written statement has also been filed by the insurance company/respondent no.3 wherein it has been stated that the respondent no.1 was not holding a valid and effective driving license to drive the vehicle in question which was insured with the respondent no.3. It has been further stated that the respondent no.1 has been challened by the police under Section 181 of MV Act for driving the vehicle in question without holding a valid and effective driving license. It has been further stated that the present claim petition is bad for non-joinder of necessary party as driver, owner and insurer of the vehicle No. HR-19A00227(Truck/Canter) involved in the accident in question are also the necessary parties in the claim petition. It has been prayed that the present claim petition may kindly be dismissed.
9. From the pleadings of the parties, following issues were framed by the Ld. Predecessor of the court on 12.12.2019:-
1. Whether the deceased Smt. Gurmeet Kaur suffered fatal injuries in the accident that took MACT No. 303/2019 Amrik Singh (LRs of deceased) vs. Younesh Khan & Ors. Page No. 6/28 Digitally signed by PRITAM PRITAM SINGH SINGH Date: 2022.04.29 16:37:59 +0530 place on 09.06.2015 at about 5:10 AM due to rash and negligent driving of vehicle bearing no. DL-1V-
0138 by the respondent no.1 Sh. Younesh Khan, being owned by the respondent No.2 and insured with respondent no.3? OPP.
2. Whether the petitioners are entitled to compensation, if so, at what amount and from whom? OPP.
3. Relief.
10. In order to establish their claim, the petitioners have examined the petitioner no.1 as PW-1 and in his evidence by way of affidavit, he has reiterated and reaffirmed the stand taken by them in the present claim petition. PW1 has filed on record the following documents:-
1. Affidavit for evidence Ex.PW1/A
2. Copy of Aadhar Card of Amrik Singh Ex.PW1/1(OSR)
3. Copy of Aadhar card of Simar Preet Singh Ex.PW1/2(OSR)
4. Copy of Aadhar card of Ms. Gurmeet Kaur Ex.PW1/3(OSR)
5. Copy of ITRs of the deceased Mrs. Gurmeet Kaur for the assessment year 2013-14, 2014-15 and 2015-16 Ex.PW1/4 to Ex.PW1/6
6. Certified copies of criminal case records received by way of RTI Ex.PW1/7(colly).
11. In the cross-examination done by Ld. Counsel for the respondent no.3/insurance company, PW-1 deposed that on the date of accident, they had started at about 8:00 AM from Delhi and there were about 8 persons in the offending vehicle including three ladies, two children and MACT No. 303/2019 Amrik Singh (LRs of deceased) vs. Younesh Khan & Ors. Page No. 7/28 PRITAM Digitally signed by PRITAM SINGH SINGH Date: 2022.04.29 16:38:04 +0530 three gents. PW-1 further deposed that he was sitting on the back seat of the driver of the offending vehicle. PW-1 further deposed that during the journey, the driver was dozing and inspite of their request, he did not stop the vehicle. PW-1 further deposed that during the way, they had also stopped the vehicle and allowed the driver to take rest. PW-1 further deposed that they did not complain to the owner of the driver as they were not having his contact number. PW-1 further deposed that it was a two lane road which become single lane at one place and the width of the road was about 30 feet. PW-1 further deposed that the position of offending vehicle was on the right side of the road. PW-1 further deposed that the vehicle which was coming from opposite side was visible. PW-1 further deposed that it was head on collision between offending vehicle and the vehicle which was coming from opposite side. PW-1 further deposed that after the accident, he was fully conscious. PW-1 further deposed that both the vehicles stopped at the place after the accident. PW-1 has denied the suggestion that the accident in question had taken place due to the negligence on the part of driver of the Truck/Canter No. HR-19A-0227.
12. PW-1 further deposed that his wife was graduate but he does not have any document. By way of volunteer, PW1 states that all her educational documents were damaged in the riots which took place in the year 1984. PW-1 further deposed that his wife was doing the business of manufacturing of jackets and she was in the business for the last 10-12 years prior to the accident. PW-1 further deposed that she was doing the business in a rental premises in the building owned by him and she was doing the MACT No. 303/2019 Amrik Singh (LRs of deceased) vs. Younesh Khan & Ors. Page No. 8/28 Digitally signed by PRITAM PRITAM SINGH SINGH Date:
2022.04.29 16:38:10 +0530 same at 1st Floor. PW-1 further deposed that she was paying a rent of Rs.25,000/- per month against receipt for the rental premises to him. Again said, the rent might be Rs.15,000/- to Rs.20,000/- per month. PW-1 further deposed that he must be having document with regard to the rented premises but so far he has not filed the same on the court record.
13. PW-1 further deposed that his wife was an income tax assesse for the last 6-7 years. PW-1 further deposed that the business which was being run by his wife is now closed after her death. PW-1 further deposed that he has not brought any other document regarding the business which was being run by his wife.
14. In their defence, the respodents no.1 & 2 have examined the respondent no.1 as RW1 and in his affidavit for evidence, he has reiterated and reaffirmed the stands as taken by respondents no.1 &2 in their written statement. He has relied upon the following documents:-
1. Affidavit for evidence of respondent no.1 Ex.RW1/A
2. Copy of his Aadhar Card Ex.RW1/1(OSR)
3. Copy of insurance of the offending vehicle Ex.RW1/2(OSR)
4. Copy of permit of the vehicle Mark A
5. Copy of his driving license Ex.RW1/4(OSR)
6. Copy of verification of his DL issued by District Transport Office, Tuensang, Nagaland Mark B.
15. In the cross examination done by Ld. Counsel for the petitioner, RW1 admitted it to be correct that FIR No. 173/15 U/s 279/337/304A IPC was registered against him at PS Unna Sadar. RW1 also admitted it to be MACT No. 303/2019 Amrik Singh (LRs of deceased) vs. Younesh Khan & Ors. Page No. 9/28 Digitally signed PRITAM by PRITAM SINGH SINGH Date: 2022.04.29 16:38:15 +0530 correct that he is facing trial in the court of Judicial Magistrate at Unna, Sadar. RW1 further admitted it to be correct that notice of acquisition u/s 337/338 and 304A IPC and 181 of MV Act was framed against him by the Judicial Magistrate, Unna. RW1 also admitted it to be correct that he has not lodged any complaint against the lodging of FIR No. 173/15 to any higher police authority or any other department that the same has been wrongly lodged against him. RW1 further deposed that at the time of accident, he was holding the driving license.
16. In the cross-examination done by Ld. Counsel for the respondent no.3/insurance company, RW1 admitted it to be correct that he has been driving commercial vehicle since 2010. RW1 further deposed that at the time of accident, he had foreseen the opposite vehicle from a distance at about 5-6 meters. RW1 admitted it to be correct that as per Ex.R3W1/7(Colly), in the reply of RTI application,the concerned District Transport Office has stated that the record of the D/L is not found or available in the record. RW1 has denied the suggestion that the said D/L was never issued by the concerned authority.
17. The insurance company has also examined its Associate Legal Claims Manager Sh. Sayok Bandyopadhyay as R3W1 and this witness has relied upon the following documents:-
1. His affidavit for evidence Ex.R3W1/A
2. Copy of insurance policy Ex.R3W1/1
3. Copy of notice dated 05.02.2020 Ex.R3W1/2
4. Postal receipts Ex.R3W1/3 and Ex.R3W1/4
5. Copy of driving license of the respondent no.1 Ex.R3W1/6 MACT No. 303/2019 Amrik Singh (LRs of deceased) vs. Younesh Khan & Ors. Page No. 10/28 Digitally signed by PRITAM PRITAM SINGH SINGH Date: 2022.04.29 16:38:20 +0530
6. Copy of application dated 04.02.2020 filed on behalf of the respondent no.3 under RTI Act by registered post, its postal receipt and reply given by the office of District Transport Officer, Tuensang, Nagaland Ex.R3W1/7(Colly)
18. In the cross-examination done by Ld. Counsel for the petitioner, R3W1 admitted it to be correct that in the RTI report dated 19.02.2020 Ex.R3W1/7 nowhere states that the driving license Ex.R3W1/6 was fake. R3W1 also admitted it to be correct that the permit is renewed in respect of any vehicle only when the owner of the vehicle takes all fitness certificate etc. from the concerned transport authority. R3W1 also admitted it to be correct that the permit of the impugned vehicle which is at page no.26 of the petition is valid upto 31.07.2015.
19. I have gone through the testimony of the witnesses; entire material available on record. I have also given my thoughtful consideration to arguments addressed by Ld. counsels for the parties. The petitioners have also been examined under the MCTAP and I have considered the statement of the petitioners under MCTAP as well.
My Issue-wise findings are as under :-
Issue No. (I)
20. The present petition has been filed by the petitioner u/s 140 & 166 M. V. Act and the onus is upon the petitioners to prove the rash and negligent act of the respondent No.1.
21. The petitioners have examined the petitioner no.1, who is the MACT No. 303/2019 Amrik Singh (LRs of deceased) vs. Younesh Khan & Ors. Page No. 11/28 Digitally signed PRITAM by PRITAM SINGH SINGH Date: 2022.04.29 16:38:27 +0530 husband of the deceased and also an eye witness to the accident in question as PW-1 and he has well explained the mode and manner of accident. He has reaffirmed and reiterated the averments made in the petition. During his entire cross examination, nothing has come out so as to discredit his testimony.
22. Ld. Counsel for the petitioner has claimed that in the case in hand, the charge-sheet pertaining to FIR No. 173/2015 dated 09.06.2015 U/s 279/304A IPC was registered with PS UNA Sadar District Una Himachal Pradesh was registered against the respondent No.1.
23. In Bimla Devi & Ors vs. Himachal Road Transport Corporation & ors (2009) 13 SC 530, in Kaushnumma Begum and others v/s New India Assurance Company Limited, 2001 ACJ 421 SC, in National Insurance Co. Ltd. vs. Pushpa Rana cited as 2009 ACJ 287, it has been held that the negligence has to be decided on the touchstone of preponderance of probabilities and a holistic view is to be taken. It has been further held that the proceedings under the Motor Vehicle Act are not akin to the proceedings in a Civil Suit and hence, strict rules of evidence are not applicable.
24. Ld. Counsel for the respondent no.3 submitted that as per the case of the petitioners, there was head on collusion between the offending vehicle and the truck/Canter bearing registration No. HR-19A-0227. Ld. Counsel for the respondent no.3 further submitted that as there was head on collusion, therefore, the driver, owner and insurer of the truck/canter were also necessary parties and the respondent no.1 cannot be held liable to cause the accident. There is no much substance in the submissions of Ld. MACT No. 303/2019 Amrik Singh (LRs of deceased) vs. Younesh Khan & Ors. Page No. 12/28 Digitally signed PRITAM by PRITAM SINGH SINGH Date: 2022.04.29 16:38:33 +0530 Counsel for respondent no.3. R1W1, who was driving the offending vehicle at the time of the accident, admitted in his cross-examination that the FIR No. 173/2015 u/s 279/337/304A IPC was registered against him at PS Unna Sadar. R1W1 further admitted that he was facing trial in the court of Judicial Magistrate at Unna, Sadar and the notice was also framed against him for causing the accident. Thus, it is clear that as per the police, the respondent no.1 was found responsible for causing the accident in question. Therefore, the chargesheet of criminal case u/s 279/337/338/304A IPC was filed against him and notice was also framed against him by the concerned court of Judicial Magistrate. For the sake of arguments, even if it is assumed that the driver of truck/canter was also responsible for causing the accident, still it is prerogative of petitioner against whom they want to file the claim petition.
25. The Hon'ble Supreme Court of India in Khenyei Vs. New India Assurance Co. Ltd. & Ors(Date of Decision 07.05.2015) has dealt with the question whether it is open to a claimant to recover entire compensation from one of the joint tort feasors, particularly when the accident caused by composite negligence of drivers of trailor-truck and bus has been found to 2/3rd and 1/3rd extent respectively.
26. The Hon'ble Supreme Court in the said ruling further held in para no.18 as under:-
"What emerges from the aforesaid discussion is as follows:
(I) In the case of composite negligence, plaintiff/claimant is entitled to sue both or any one of the joint tort feasors and to recover the entire compensation as liability of joint tort feasors is joint and several.MACT No. 303/2019 Amrik Singh (LRs of deceased) vs. Younesh Khan & Ors. Page No. 13/28 Digitally signed
PRITAM by PRITAM
SINGH
SINGH Date: 2022.04.29
16:38:37 +0530
(ii) In the case of composite negligence, apportionment of
compensation between two tort feasors vis a vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.
(iii) In case all the joint tort feasors have been impleaded and evidence is sufficient, it is open to the court/tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tort feasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of the payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/extent of their negligence has been determined by the court/tribunal, in main case one joint feasor can recover the amount from the other in the execution proceedings.
(iv) It would not be appropriate for the court/tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tort feasors. In such a case, impleaded joint tort feasor should be left, in case he so desires, to sue the other joint tort feasor in independent proceedings after passing of the decree or award.
27. The ruling Khenyei Vs. New India Assurance Co. Ltd. & Ors(supra) was relied upon by the Hon'ble Supreme Court of India in Kamlesh & Ors. Vs. Attar Singh & Ors, Date of Decision 27.10.2015.
28. The Hon'ble Supreme Court of India has laid the controversy at rest by holding that the claimant is entitled to sue both, all or any one of the joint tort feasors and to recover the entire compensation as liability of joint fort feasors is joint and several. Thus, the petitioner is not bound to implead the drivers, owners and insurers of the other vehicles as respondents and it is his wish from whom he wants to seek the compensation though it may be for his own peril. The Hon'ble Supreme Court has also held that in case of composite negligence of more than one vehicle, one joint tort feasor can file MACT No. 303/2019 Amrik Singh (LRs of deceased) vs. Younesh Khan & Ors. Page No. 14/28 Digitally signed by PRITAM PRITAM SINGH Date: SINGH 2022.04.29 16:38:43 +0530 the separate proceedings against the other joint tort feasors after passing of the award. Hence, the respondent no.3 being one joint tort feasor can file separate proceedings against the driver, owner and insurer of the other vehicles, who may be other joint tort feasors relating to the present accident after passing of the award in the present petition.
29. In the light of the abovesaid discussion, to my mind, the petitioners have been able to prove issue No.1 in their favour and accordingly, issue No.1 is decided in favour of the petitioners.
Issue No. (ii)
30. The petitioners, in the claim petition have claimed that the deceased was aged about 54 years on the date of the accident. The petitioner no.1 has exhibited the photocopy of the Aadhar Card of the deceased Ex.PW1/3. As per the Aadhar Card of the deceased, the year of birth of the deceased is 1955. The date of accident is 09.06.2015. Accordingly, the age of the deceased is taken as 60 years on the date of accident.
31. In the claim petition, it has been stated that the petitioner was a business woman and earning Rs.50,000/- per month. In order to prove the salary of the deceased, the petitioner no.1 has filed on record copy of income tax rturns for the assessment years 2013-14, 2014-15 and 2015-16 Ex.PW1/4 to Ex.PW1/6 respectively.
32. Perusal of ITRs of the deceased reveals that she was having income from house property and income from other sources. I find MACT No. 303/2019 Amrik Singh (LRs of deceased) vs. Younesh Khan & Ors. Page No. 15/28 Digitally signed PRITAM by PRITAM SINGH SINGH Date: 2022.04.29 16:38:49 +0530 substance in the submissions of Ld. Counsel for respondent no.3 that there is no loss of income to the petitioners from house property of the deceased as the house property was inherited by the petitioners and they would have started getting income from the said house property. Therefore, the income from house property should be deducted while calculating the net loss of income to the petitioners on account of death of the deceased.
33. As per the ITR for the assessment years 2013-14, 2014-15 and 2015-16, the net income of the deceased was Rs.4,65,820/-, Rs.4,20,270/- and Rs.2,68,550/-respectively. The average net income of the deceased from the last three ITRs for the assessment years 2013-14, 2014-15 and 2015-16 after deducting income from house property, comes to Rs.2,29,713/- (after rounding off Rs.2,29,713.33/- per annum) [ (Rs.4,65,820/- +Rs.4,20,270/- + Rs.2,68,550/-) - (Rs.1,68,000/- + Rs.1,68,000/- + Rs.1,29,500/- income from house property) divided by 3].
34. Accordingly, the monthly salary of the deceased has to be taken as Rs.19,143/- [after rounding off Rs.19,142.75/-(Rs.2,29,713/12)] per month on the date of the accident.
35. The petitioners, in the claim petition have stated that the deceased left behind her husband and minor son.
36. The petitioner no.1 has been examined on 13.12.2021 under MCTAP and he has stated that he is having manufacturing and trading of readymade garments and earning Rs.1 Lakh per month. As per their own claim of the petitioners, the petitioner no.1 is doing the manufacturing and trading of readymade garments work and earning Rs.1 Lakh per month. As MACT No. 303/2019 Amrik Singh (LRs of deceased) vs. Younesh Khan & Ors. Page No. 16/28 Digitally signed by PRITAM PRITAM SINGH SINGH Date: 2022.04.29 16:38:54 +0530 such, petitioner no.1 cannot be taken as dependent upon the deceased at the time of accident. Accordingly, the petitioner no.2 i.e. son of the deceased is hereby taken as only dependent upon the deceased at the time of accident.
37. In terms of the judgment of the Hon'ble Supreme Court of India in 'Sarla Verma Vs. DTC decided on 15.4.2009 in C.A. No. 3483/08', the deceased might have been spending one-half of Rs.19,143/- on his personal expenses as she had left behind only one dependent on the deceased. Therefore, after deducting one-half towards personal expenses, the loss of dependency per month comes out to Rs.9572/- (after rounding of Rs.9571.5/-)=(Rs. 19,143/- less Rs.9571.5/-).
38. The Hon'ble Apex Court of the land in the latest judgment which has arisen out of SLP (Civil) No. 25590 of 2014 titled as National Insurance Company Limited vs. Pranay Sethi & ors decided on 31.10.2017 has held as under:-
"61. In view of the aforesaid analysis, we proceed to record our conclusions:-
(i) The two-Judge Bench in Santosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench.
(ii) As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent.
(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 MACT No. 303/2019 Amrik Singh (LRs of deceased) vs. Younesh Khan & Ors. Page No. 17/28 Digitally signed by PRITAM PRITAM SINGH SINGH Date:
2022.04.29 16:39:00 +0530 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 computation. The established income means the income minus the tax component.
(v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore.
(vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment.
(vii) The age of the deceased should be the basis for applying the multiplier.
(viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years."
39. The Hon'ble High Court of Delhi in MAC Appeal No. 798/2011 titled as Bajaj Allianz General Insurance company Ltd. vs. Pooja & ors decided on 02.11.2017 has held that even in the cases where the income of the deceased is calculated on the basis of the minimum wages, the benefit of future prospects is to be given in accordance with the abovesaid guidelines issued by the Hon'ble Supreme Court of India in the abovestated authority as per the rule applicable to self employed or privately employed persons.
40. Going by the ratio of the abovestated two authorities, the MACT No. 303/2019 Digitally Amrik Singh (LRs of deceased) vs. Younesh Khan & Ors. signed byPage No. 18/28 PRITAM PRITAM SINGH SINGH Date:
2022.04.29 16:39:22 +0530 multiplier has to be selected as per the age of the deceased which is 60 years in the case in hand, accordingly, the multiplier of 09 as per Sarla Verma vs. DTC 2009 ACJ 1298 SC shall be applicable.
41. An addition of 10% on account of the future prospects has to be given as the age of the deceased was 60 years. Accordingly, the monthly income of the deceased has to be calculated as Rs.10,530/- after rounding off Rs.10529.2/-(Rs.9572/- + Rs.957.2/- which is 10% of Rs.9572/-).
42. The appropriate multiplier applicable is '09' (for the age group of 56 years to 60 years) as mentioned in Sarla Verma's judgment (Supra). Hence, the total loss of dependency comes out to Rs.11,37,240/- = (Rs.10,530x 12 x 9).
43. The Hon'ble Supreme Court of India in, "National Insurance Company Ltd. vs. Pranay Sethi & Ors. in Special Leave Petition (Civil) No.25590 of 2014 has granted a sum of Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- on account of loss of estate, loss of consortium and funeral expenses respectively. The aforesaid amounts are to be enhanced at the rate of 10% in every three years.
44. In view of the abovesaid judgment, I hereby award Rs. 15,000/- towards loss of estate; Rs.80,000/- towards loss of consortium (Rs.40,000/- x 2) and Rs.15,000/- towards funeral charges.
45. Therefore, in total, I hereby award a sum of Rs.12,47,240/- (Rupees Twelve Lakhs Forty Seven Thousand Two Hundred and Forty Only) = (Rs.11,37,240/- + Rs. 1,10,000/-) in favour of the petitioners and against the respondents.
Digitally
signed by
PRITAM
MACT No. 303/2019 PRITAM SINGH
Amrik Singh (LRs of deceased) vs. Younesh Khan & Ors. SINGH Date: Page No. 19/28
2022.04.29
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R E L I EF / ISSUE NO.3
46. I passed an award of Rs.12,47,240/- (Rupees Twelve Lakhs Forty Seven Thousand Two Hundred and Forty Only) as compensation with interest at the rate of 6% per annum including interim award, if any from the date of filing the DAR/claim petition i.e. 08.05.2019 till the date of the payment of the award amount, in favour of the petitioner no.2 being only dependent upon the deceased at the time of the accident and against the respondents on account of their liability being joint and several.
47. The petitioner no.1 has also been examined under MCTAP on 13.12.2021 and his statement has also been considered by this Tribunal. MODE OF DISBURSEMENT OF THE AWARD AMOUNT TO THE CLAIMANTS AS PER THE PROVISIONS OF THE 'MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE' (MCTAP).
48. This court is in receipt of the orders dated 07.12.2018 passed by the Hon'ble High Court of Delhi in FAO no. 842/2003 titled as Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors whereby the Hon'ble High Court of Delhi has formulated MACAD(Motor Accident Claims Annunity Deposit Scheme) which has been made effective from 01.01.2019. The said orders dated 07.12.2018 also mentions that 21 banks including State Bank of India is one of such banks which are to adhere to MACAD. The State Bank of India, Tis Hazari Courts, Delhi is directed to disburse the amount in accordance with MACAD formulated by the Hon'ble High Court of Delhi.
49. Keeping in view the entirety of the facts and circumstances involved in the present case and the abovesaid guidelines laid down by the MACT No. 303/2019 Digitally signed by PRITAM Amrik Singh (LRs of deceased) vs. Younesh Khan & Ors. Page No. 20/28 PRITAM SINGH Date:
SINGH 2022.04.29
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+0530
Hon'ble High Court of Delhi, the respondent No.3/insurance company is directed to deposit the award amount of Rs.12,47,240/- (Rupees Twelve Lakhs Forty Seven Thousand Two Hundred and Forty Only) as stated herein above with SBI,Tis Hazari Court, Delhi in the MACT Account of this Tribunal having Account no. 40711767202 CIF no. 90891362578, IFSC Code. SBIN0000726 Tis Hazari Courts, Delhi in favour the petitioners as stated herein above.
The compensation to the petitioners be distributed as follows:-
Sl. Name of the Age Relation Amount Amount of Amount kept Period of FDRs no. petitioners/cl with award award to be in FDRs with aimants injured/d released cummulative eceased interest
1. Amrik Singh DOB: Husband Rs.40,000/- Rs.40,000/- Nil NIL 20.08.1947
2. Simar Preet DOB: Son Rs.12,07,240/- Rs.2,07,240/ Rs.10,00,000/- Remaining Singh 22.11. - award amount 2003 of Rs.10 Lakhs shall be kept in the form of monthly FDRs of Rs.10,000/-
each. That the interest amount shall also be kept in the form of monthly FDRs of Rs.10,000/-
each.
TOTAL Rs.12,47,240/-
45. The following conditions are to be adhered to by SBI, Tis Hazari Courts, Delhi with respect to the fixed deposits:-
Digitally signed by MACT No. 303/2019 PRITAM Amrik Singh (LRs of deceased) vs. Younesh Khan & Ors. PRITAM SINGH Page No. 21/28 SINGH Date:
2022.04.29 16:39:41 +0530
(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.
(f) The concerned bank shall not be 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 along with the duly signed and stamped by the bank official on the passbook(s) of the claimant(s) is sufficient compliance of clause (g) above.
46. In accordance with the orders dated 08.02.2019 passed by the Hon'ble High Court of Delhi in FAO no. 842/2003 in Rajesh Tyagi and others Vs. Jaibir Singh and others, Mr. Rajan Singh, Assistant General Manager has been appointed as Nodal Officer of SBI having Phone no. 022- 22741336/9414048606 and e mail ID [email protected]. In case of any MACT No. 303/2019 Amrik Singh (LRs of deceased) vs. Younesh Khan & Ors. Page No. 22/28 Digitally signed PRITAM by PRITAM SINGH SINGH Date: 2022.04.29 16:39:46 +0530 assistance or non compliance, the aforesaid Nodal Officer may be contacted to. A copy of this order be sent by e-mail to the aforesaid Nodal Officer of the aforesaid bank by the Ahlmad of the Court immediately in accordance with the directions of the Hon'ble High Court as contained in the orders dated 07.12.2018. The Nodal Officer of the bank shall ensure the disbursement of the award amount within three weeks of the receipt of the e-mail as mentioned in the orders dated 07.12.2018 passed by the Hon'ble High Court of Delhi.
APPORTIONMENT OF LIABILITY
47. It has been argued that the respondent No.1 was not holding any valid and effective driving license at the time of the accident. In order to prove its stand, the insurance company has examined its Associate Legal Claims Manager as R3W1 in the present matter who has exhibited the application dated 04.02.2020 filed on behalf of the respondent no.3 under RTI Act by registered post, its postal receipt and reply given by the office of District Transport Officer Tuensang, Nagaland Ex.R3W1/7.
48. In the reply of RTI issued by PIO & District Transport Officer, Tuensang, Nagaland, it has been mentioned that no record has been found/available in respect of Driving License No.23479/TSG/Prof in the name of Shri. Unesh in the office. The insurance company has failed to examine anyone from District Transport Officer, Tuensang, Nagaland to prove that the driving license of the respondent no.1 was not valid at the time of accident. On the other hand, the respondent no.1/driver of the MACT No. 303/2019 Digitally signed Amrik Singh (LRs of deceased) vs. Younesh Khan & Ors. by PRITAMPage No. 23/28 PRITAM SINGH Date:
SINGH 2022.04.29
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offending vehicle has also marked copy of his driving license Mark A and copy of verification of his Driving License issued by District Transport Office, Tuensang, Nagaland Mark B.
49. As per Mark B i.e. letter dated 03.11.2010 issued by District Transport Officer, Tuensang Nagland, it has been certified that driving license NO. 23479/TSG/Prof in respect of Sh. Unesh S/o Lal Mohammad has been issued from that office and valid upto 02.11.2017 and the undersigned office has no objection for renewal and authorization of the aforesaid driving license license.
50. From this, it is clear that the insurance company has failed to establish its defence that the driver of the offending vehicle was not holding a valid and effective driving license at the time of accident. Ld. Counsel for the insurance company argued that not only Section 3/181 of MV Act was invoked in the FIR but the chargesheet was also filed u/s 3/181 of MV Act along with other Section of IPC, therefore, it is established that the respondent no.1 was not holding a valid driving license at the time of accident. On the other hand, Ld. Counsel for the respondent no.1 submitted that the respondent no.1 had lost/misplaced his driving license in the accident in question and due to which he could not produce the same to the IO, however, he found his license later on and also filed its verification report. The respondent no.1 has filed on record copy of his DL Mark A and copy of letter dated 10.11.2010 issued by District Transport Authority Tuensang, Nagaland Mark B. From Mark A and Mark B, it is established that the respondent no.1 was holding a valid MACT No. 303/2019 Amrik Singh (LRs of deceased) vs. Younesh Khan & Ors. Page Digitally No. 24/28 signed PRITAM by PRITAM SINGH SINGH Date: 2022.04.29 16:39:56 +0530 driving license on the date of the accident. The respondent no.3/insurance company applied through RTI for verification of the driving license Mark A of the respondent no.1 and got the reply that no record has been found/available in respect of driving license (Mark A) in the record. Thus, non availability of record of driving license of respondent no.1 does not mean that his driving license Mark A is fake one, particularly when the concerned Transport Authority has certified that the driving license license Mark A was issued by its office and valid upto 02.11.2017. Hence, the insurance company is not entitled for any recovery rights against the respondents no.1 & 2.
51. Since the offending vehicle was admittedly insured with the respondent No.3/Insurance company, the respondent No.3 is hereby directed to deposit the award amount in favour of the petitioners in accordance with SBI, Tis Hazari Courts, Delhi within a period of 30 days from the date of passing of this award together with the interest as stated herein above under the intimation to this court and under intimation to the petitioner. In case of any delay, it shall be liable to pay interest at the rate of 12% per annum for the period of delay.
52. A separate file be prepared for compliance report by the Nazir and put up the same on 31.05.2022.
53. A copy of this award be given to the respondents as well as to the petitioners free of cost.
54. A copy of this award be sent to the concerned Ld. Metropolitan Magistrate as well as DSLSA as per the provisions of the MODIFIED MACT No. 303/2019 Amrik Singh (LRs of deceased) vs. Younesh Khan & Ors. Page No. 25/28 Digitally signed PRITAM by PRITAM SINGH SINGH Date: 2022.04.29 16:40:07 +0530 CLAIM TRIBUNAL AGREED PROCEDURE (MCTAP).
55. File be consigned to Record Room.
Digitally signedPRITAM by PRITAM SINGH SINGH Date: 2022.04.29 16:40:12 +0530 Announced in the open court (PRITAM SINGH) On 29th of April, 2022 P.O. MACT (WEST-01) THC/Delhi (29.04.2022) MACT No. 303/2019 Amrik Singh (LRs of deceased) vs. Younesh Khan & Ors. Page No. 26/28 FORM -XV
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN DEATH CASES
1. Date of accident. : 09.06.2015
2. Name of the deceased : Smt. Gurmeet Kaur
3. Age of the deceased : 60 years
4. Occupation of the deceased : Business Woman
5. Income of the deceased : Rs.19,143/-
6. Name, age and relationship of legal representative of deceased:-
S. Name Age Relation
No.
(i) Amrik Singh DOB: Husband of deceased
20.08.1947
(ii) Simar Preet Singh DOB: Son of deceased
22.11.2003
Computation of Compensation
Sr. Heads Awarded by the Claim Tribunal
No.
7. Income of the deceased(A) Rs.19,143/-
8. Add-Future Prospects (B) 10%
9. Less-Personal expenses of the 1/2 rd deduction has been done
deceased(C)
10. Monthly loss of Rs.10,530/-
dependency[(A+B)-C=D]
11. Annual loss of dependency Rs.1,26,360/-
(Dx12) (Rs. 10,530/- x 12)
12. Multiplier(E) 9
13. Total loss of dependency Rs. 11,37,240/- (Rs.10530/-x 12 x 9)
MACT No. 303/2019
Amrik Singh (LRs of deceased) vs. Younesh Khan & Ors. Page No. 27/28
Digitally signed
PRITAM by PRITAM
SINGH
SINGH Date: 2022.04.29
16:40:22 +0530
(Dx12xE= F)
14. Medical Expenses(G) NIL
15. Compensation for loss of Rs.80,000/- (Rs.40,000/- each)
consortium(H)
16. Compensation for loss of love NIL
and affection(I)
17. Compensation for loss of Rs.15,000/-
estate(J)
18. Compensation towards funeral Rs.15,000/-
expenses(K)
19. TOTAL COMPENSATION Rs.12,47,240/-
(F+G+H+I+J+K=L)
20. RATE OF INTEREST 6% per annum
AWARDED
21. Interest amount up to the date Rs.2,22,632.27/-
of award (M) (2 years 11 months and 21 days)
22. Total amount including Rs.14,69,872.27/-
interest (L + M) (Rs.12,47,240/- + Rs.2,22,632.27)
23. Award amount released Rs.2,47,240/-
(Rs.40,000/- +Rs.2,07,240/-)
24. Award amount kept in FDRs Rs.10,00,000/-
25. Mode of disbursement of the Mentioned in the award
award amount to the claimant
(s).
26. Next date for compliance of 31.05.2022
the award.
Digitally signed by
PRITAM PRITAM SINGH
SINGH Date: 2022.04.29
16:40:28 +0530
(PRITAM SINGH)
P.O.MACT (WEST-01)
Delhi (29.04.2022)
MACT No. 303/2019
Amrik Singh (LRs of deceased) vs. Younesh Khan & Ors. Page No. 28/28