Delhi District Court
Jawala Mukhi vs Arun Yadav on 18 July, 2024
IN THE COURT OF HARVINDER SINGH, DISTRICT
JUDGE-CUM-PRESIDING OFFICER : MOTOR ACCIDENT
CLAIMS TRIBUNAL-01, (WEST), TIS HAZARI COURTS,
DELHI
AWARD/JUDGMENT
MACT Case No.1163/2022
CNR No. DLWT010084622022
1. Jawala Mukhi W/o Late Sh. Gaya Nanad Jha
2. Manoj Jha D/o Late Sh. Gaya Nanad Jha
3. Mithlesh Kumar Jha D/o Late Sh. Gaya Nanad Jha
All R/o 90, P/1 Block, Sultan Puri, North West, Delhi-
110086.
..............Applicant/Petitioner
Versus
1. Arun Yadav
S/o Sh. Gango Yadav
R/o Village Neyampur, Post Hayaghat, Bilaspur,
Dharbhanga Bihar
2. Rajender Singh
S/o Sh. Himmat Singh
R/o A-56, New Multan Nagar,
Paschim Vihar, New Delhi
3. The Oriental Insurance Co. Ltd. (Insurer)
7678 Singh Sabha Road, Near Amba Cinema Road,
Delhi
Date of Institution : 31.08.2022
Date of reserving order/judgment : 18.07.2024
Date of pronouncement : 18.07.2024
Jawala Mukhi (LR) vs Arun Yadav & Ors.
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Digitally signed by
HARVINDER
HARVINDER SINGH
SINGH Date: 2024.07.19
FORM-XVII
COMPLIANCE OF THE PROVISIONS OF THE MODIFIED
CLAIMS TRIBUNAL AGREED PROCEDURE
1. Date of the accident 17.05.2022
2. Date of filing of Form-I - 31.08.2022
First Accident Report (FAR)
3. Date of delivery of Form-II to 31.08.2022
the victim(s)
4. Date of receipt of Form-III 31.08.2022
from the Driver
5. Date of receipt of Form-IV 31.08.2022
from the Owner
6. Date of filing of the Form-V- 31.08.2022
Interim Accident Report
(IAR)
7. Date of receipt of Form-VIA 31.08.2022
and Form-VIB from the
Victim(s)
8. Date of filing of Form-VII - 31.08.2022
Detailed Accident Report
(DAR)
9. Whether there was any delay No
or deficiency on the part of
the Investigating Officer? If
so, whether any action/
direction warranted?
10. Date of appointment of the 20.10.2022
Designated Officer by the
Insurance Company
11. Whether the Designated No
Officer of the Insurance
Company submitted his report
within 30 days of the DAR?
12. Whether there was any delay No
or deficiency on the part of
the Designated Officer of the
Jawala Mukhi (LR) vs Arun Yadav & Ors.
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HARVINDER HARVINDER SINGH
SINGH Date: 2024.07.19
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Insurance Company? If so,
whether any action/direction
warranted?
13. Date of response of the Legal offer was not filed in
claimant(s) to the offer of the this case
Insurance Company
14. Date of the award 18.07.2024
15. Whether the claimant(s) Yes
was/were directed to open
savings bank account(s) near
their place of residence?
16. Date of order by which 31.08.2022
claimant(s) 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) 28.05.2024
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 R/o 90, P/1 Block, Sultan
Address of the claimant(s). Puri, North West Delhi,
Delhi-110086
19. Whether the claimant(s) Yet to be filed
savings bank account(s) is/are
near his/her/their place of
residence?
20. Whether the claimant(s) Yes
was/were examined at the
time of passing of the award
Jawala Mukhi (LR) vs Arun Yadav & Ors.
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Digitally signed
by HARVINDER
HARVINDER SINGH
SINGH Date: 2024.07.19
15:30:33 +0530
to ascertain his/her/their
financial condition?
FACTUAL POSITION & PLEADINGS
1. Vide this judgment/award, this Tribunal shall decide
DAR for compensation on account of death of Sh. Gaya Nand
Jha in a road vehicular accident which took place on 17.05.2022
at about 8:40 AM at between Pillar No. 158-157, Rohtak Road,
towards Punjabi Bagh, New Delhi.
CASE OF PETITIONER SIDE
2. Succinctly, the case put forth by DAR is that
deceased Gayanand Jha sustained fatal injuries in the incident
which took place on 17.05.2022 at about 8:40 AM due to rash
and negligent of the offending vehicle bearing registration no.
DL1GC3338 by respondent no.1. FIR No. 384/2022 was
registered at PS Punjabi Bagh against the respondent no.1. The incident happened solely due to rash and negligent driving of respondent no.1. All the petitioners were dependent upon deceased.
MISCELLANEOUS PROCEEDINGS
3. Notice of the application/petition was issued to the respondents, they appeared and filed their WS/reply to the present petition/application.
RESPONSE OF RESPONDENT NO.01 & 024. In gist, the response of the respondent no.01 & 02 as discernible from their separate reply/written statement is that the petitioners have not come before this Tribunal with clean hands and has suppressed material facts. No incident has taken place with the alleged offending vehicle. Vehicle bearing registration Jawala Mukhi (LR) vs Arun Yadav & Ors.
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No. DL1GC3338 was duly insured with respondent no.3 at the time of incident vide policy No. 271500/31/2022/2212 valid from 07.11.2021 to 06.11.2022. Respondent no.1 was having a valid driving license bearing No. BR0720030014478 valid till 06.12.2031. With these averments, respondent no.01 & 02 have prayed for dismissal of the DAR/petition.
RESPONSE OF RESPONDENT NO.03
5. In gist, the response of the respondent no.03 as discernible from its reply/written statement is that respondent no.1 was not having valid and effective driving license to drive the offending vehicle at the time of incident. There is no endorsement for hazardous goods on the driving license of the respondent no.1. Vehicle bearing No. DL01GC3338 was insured with it vide policy no. 271500/31/2022/2212 for period 07.11.2021 to 06.11.2022. With these averments, respondent no.3/Insurance company has prayed for dismissal of the same. ISSUES 6.1 After completion of pleadings, on 06.03.2023, this tribunal framed following issues: -
1. Whether the deceased Sh. Gayanand Jha suffered fatal injuries in the accident that took place on 17.05.2022 at about 8:40 AM at in between Metro Pillar No. 157-158, Rohtak Road, Towards Punjabi Bagh, New Delhi due to rash and negligent driving of vehicle bearing registration number DL1GC3338 by respondent no.01, being owned by respondent no.02 and being insured with respondent no.03? OPP
2. Whether the applicant(s) is/are entitled to compensation, if yes, of what amount and from whom? OPP
3. Relief.
6.2 Thereafter, matter was fixed for evidence of Jawala Mukhi (LR) vs Arun Yadav & Ors.[MACT No.1163/2022] Page No.5 of 30 Digitally signed by
HARVINDER HARVINDER SINGH SINGH Date: 2024.07.19 15:30:45 +0530 petitioner side.
PETITIONER SIDE EVIDENCE 7.1 The petitioner(s)/claimant(s) examined petitioner No.3 Mithlesh Kumar Jha as PW-1 to establish their claim. He tendered his evidence by way of affidavit Ex.PW1/A reiterating and supporting the contents of their application/petition. He replied upon copy of FIR No. 0384/2022 dated 17.04.2022 Ex.PW1/1, Charge sheet Ex.PW1/2, post mortem report Ex.PW1/3, mechanical inspection report Ex.PW1/4, Aadhaar Card of deceased Ex.PW1/5, copy of his Aadhar Card Ex.PW1/6 and MLC of deceased Ex.PW1/7 in his evidence. PW1 was examined, cross-examined and was discharged. 7.2 No other witness was examined by petitioner side. RESPONDENT SIDE EVIDENCE 8.1 Respondent no.1 examined himself as R1W1 and tendered his evidence by way of affidavit Ex.R1W1/A reiterating and supporting their stand. RW1 in gist has deposed that on 17.05.2022 at about 8:50 hours deceased was struck by a motorcycle due to which he fell down in front of his vehicle. He tried to stop the truck but could not immediately apply brakes as the truck was loaded with gas cylinders. Incident happened due to rash and negligent driving of motorcycle which stuck the deceased. He relied upon copy of his driving license Ex.R1W1/1, insurance policy Ex. R1W1/2 and copy of his Aadhar Card Ex. R1W1/3 in his evidence. He was examined, cross-examined and was discharged.
8.2 Respondent no.2 also examined himself as R2W1 and tendered his evidence by way of affidavit Ex.R1W1/A Jawala Mukhi (LR) vs Arun Yadav & Ors.
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reiterating and supporting their stand. He relied upon copy of RC, permit, fitness certificate and insurance certificate Ex. R2W1/1 and photocopy of certificate of respondent no.1 Mark R2W1/2 in his evidence. He was examined, cross-examined and was discharged.
8.3 Respondent no.2 also examined Sh. Sanjeev Kumar, Field Executive from M/s Om Sai Motor Driving Training School, A-041, Sector 69, TPT Nagar, Noida as R2W2. He has exhibited his authority letter Ex. R2W2/A, copy of gazette notification of Government of UP along with notification of M/s Om Sai Motor Driving Training School to be granted recognization and permission for parting training in driving of hazardous goods vehicles Ex.R2W2/C, attested copy of Form 11 issued by office of Transport Commissioner Meerut to their training School Ex.R2W2/D, attested copy of training certificate dated 19.02.2020 issued to Sh. Arun Yadav qua his having attended training program of safe transportation of hazardous goods from 19.02.2020 to 21.02.2020 Ex. R2W2/E and attested copy of latest certificate issued by office of Deputy Transport Commissioner, Meerut qua licence to their school for permission qua imparting training in driving dangerous/hazardous goods vehicles dated 08.02.2024 Ex. R2W2/F in his evidence. He was examined, cross-examined and discharged. 8.4 Respondent no.3/Insurance Company has examined its Deputy Manager Ms. Bharti Meena as R3W1. R3W1 has exhibited copy of insurance policy of vehicle bearing registration No. DL01GC3338 Ex.R3W1/1 and her authority letter Ex. R3W1/B in her evidence. She was examined and was discharged.
Jawala Mukhi (LR) vs Arun Yadav & Ors.
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FINAL ARGUMENTS/SUBMISSIONS/CONTENTIONS 9.1 Submissions/contentions of the petitioner side are that the petitioner side has positively proved that the incident took place due to rash and negligent driving of the respondent no.01. Award may be passed by this Tribunal as per entitlement/claim of applicant(s)/claimant(s)/LR(s). 9.2 Submissions/contentions of the respondent no.01 & 02 are that the petitioner side has failed to prove that incident in question took place due to rash and negligent driving of respondent no.1. Incident has not happened due to rash and negligent driving of the respondent no.1. Petitioner side has failed to prove the job/business/work and income of the deceased. With these main submissions/contentions, the respondent no.01 & 02 have prayed for dismissal of the petition. 9.3 Submissions/contentions of the respondent no.03 are that the petitioner side has failed to prove that incident in question took place due to rash and negligent driving of respondent no.1. Petitioner side has failed to prove the job/business/work and income of the deceased. Respondent no.01 was not holding a valid and effective driving license to drive of vehicle carrying hazardous goods at the time of incident. Respondent no.3 be provided recovery rights against respondents no.1 & 2 in case award is passed by this Tribunal against the respondents and it is directed to pay the same. With these main submissions/contentions, the respondent no.03 has prayed for dismissal of the petition.
Jawala Mukhi (LR) vs Arun Yadav & Ors.
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SINGH Date: 2024.07.19
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ANALYSIS/FINDINGS ON ISSUES
10.1 (1) Whether the deceased Sh. Gayanand Jha
suffered fatal injuries in the accident that took place on 17.05.2022 at about 8:40 AM at in between Metro Pillar No. 157-158, Rohtak Road, Towards Punjabi Bagh, New Delhi due to rash and negligent driving of vehicle bearing registration number DL1GC3338 by respondent no.01, being owned by respondent no.02 and being insured with respondent no.03? OPP 10.2 Before adverting to the facts of the present petition for deciding the above issue, at the very outset, it would be apposite to note here that the procedure followed by an accident claim tribunal is similar to what is followed by a civil court. In civil matters the facts are required to be established by way of preponderance of probabilities only and not by strict rules of evidence or beyond reasonable doubt as is required in a criminal prosecution. The burden of proof in a civil case is not as heavy as it is in a criminal case and in a claim petition under the M. V. Act, this burden is even lesser than a civil case. Reference in this regard can be made to the prepositions of law laid down by the Hon'ble Supreme Court of India in case of "Bimla Devi and others Vs. Himachal Road Transport Corporation and Ors. "
reported in (2009) 13 SC 530, which were reiterated in the subsequent judgments in the case of "Parmeshwari Vs. Amir Chand and Ors." 2011 (1) SCR 1096 (Civil Appeal No.1082 of 2011) and "Mangla Ram Vs. Oriental Insurance Co. Ltd. & Ors.", 2018 Law Suit (SC) 303 etc. 10.3 Now keeping in mind the aforesaid legal principle/preposition for decision of the present issue, this Jawala Mukhi (LR) vs Arun Yadav & Ors.[MACT No.1163/2022] Page No.9 of 30 Digitally signed by HARVINDER
HARVINDER SINGH
SINGH Date: 2024.07.19
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Tribunal has gone through the testimony of the witnesses and entire material available on record. This Tribunal has also given thoughtful consideration to arguments addressed by Ld. Counsels for the parties. The petitioner side has not examined any eye witness to the incident in present matter, therefore, in given circumstances, it needs to decided whether the evidence brought on record is sufficient in itself to establish rashness and negligence in driving of the offending vehicle by the respondent driver upto the standard of proof required in such matters as is discussed above.
10.4 The Hon'ble Supreme Court of India in its full bench decision in matter "United India Insurance Company Limited Vs. Shila Datta & Ors." (2011) 10 SCC 509 has made following observations about inquiry contemplated under MV Act:-
"5. A claim petition for compensation in regard to a motor accident (filed by the injured or in case of death, by the dependant family members) before the Motor Accident Claims Tribunal constituted under section 165 of the Act is neither a suit nor an adversarial lis in the traditional sense. It is a proceedings in terms of and regulated by the provisions of Chapter XII of the Act which is a complete Code in itself. We may in this context refer to the following significant aspects in regard to the Tribunals and determination of compensation by Tribunals:
(i) A proceedings for award of compensation in regard to a motor accident before the Tribunal can be initiated either on an application for compensation made by the persons aggrieved (claimants) under section 166(1) or section 163A of the Act or suo moto by the Tribunal, by treating any report of accident (forwarded to the tribunal under section 158(6) of the Act as an application for compensation under section 166 (4) of the Act.(iii) In a proceedings initiated suo moto by the tribunal, the owner and driver are the respondents. The insurer is not a respondent, but a noticee under section 149(2) of the Act. Where a claim petition is filed by the injured or by the legal representatives of a person dying in a motor accident, the driver and owner have to Jawala Mukhi (LR) vs Arun Yadav & Ors.[MACT No.1163/2022] Page No.10 of 30 Digitally signed by HARVINDER
HARVINDER SINGH
SINGH Date: 2024.07.19
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be impleaded as respondents. The claimants need not inplead the insurer as a party. But they have the choice of impleading the insurer also as a party respondent.
When it is not impleaded as a party, the Tribunal is required to issue a notice under section 149(2) of the Act. If the insurer is impleaded as a party, it is issued as a regular notice of the proceedings.
(v) Though the tribunal adiudicates on a claim and determines the compensation, it does not do so as in an adversarial litigation. On receipt of an application (either from the applicant or suo motu registration), the Tribunal gives notice to the insurer under section 149(2) of the Act, gives an opportunity of being heard to the parties to the claim petition as also the insurer, holds an inquiry into the claim and makes an award determining the amount of compensation which appears to it to be just. (Vide Section 168 of the Act).
(vi) The Tribunal is required to follow such summary procedure as it thinks fit. It may choose one or more persons possessing special knowledge of and matters relevant to inquiry, to the assist it in holding the enquiry (vide section 169 of the Act).
We have referred to the aforesaid provisions to show that an award by the tribunal cannot be seen as an adversarial adjudication between the litigating parties to a dispute, but a statutory determination of compensation on the occurrence of an accident, after due enquiry, in accordance with the statute."
10.5 The Hon'ble Supreme Court of India in matter of "Dulcina Fernandes & ors. Vs. Joaquim Xavier Cruz & Anr." (2013) 10 SCC 646 while relying upon the above full bench decision has held/observed as under:- .
"8. However, there are certain other features of the case which are more fundamental and, therefore, have to be specifically noticed. CW-2, who was at the relevant time working as the Head Constable of Main Eurtorim, Police Station, had deposed that a criminal case was registered against the first respondent in connection with the accident and that after investigation he was chargesheeted and sent up for trial. Though it is submitted at the Bar that the first respondent was acquitted in the said case what cannot be overlooked is the fact that upon investigation of the case registered against the first respondent, prime facie, materials Jawala Mukhi (LR) vs Arun Yadav & Ors.
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showing negligence were found to put him on trial.. "
10.6 The Hon'ble High Court of Delhi in matter "National Insurance Company Ltd. Vs. Smt. Pushpa Rana & ors." 2009 ACJ 287 has held/observed as under:-
"11. The last contention of the appellant insurance company is that the respondents claimants should have proved negligence on the part of the driver and in this regard the counsel has placed reliance on the Judgment of the Hon'ble Supreme Court in Oriental Insurance Co. Ltd. v. Meena Variyal. On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced (i) certified copy of the criminal record of criminal case in FIR NO. 955/2004, pertaining to involvement of the offending vehicle, (ii) criminal record showing completion of investigation of police and issue of charge sheet under Section 279/304-A, IPC against the driver; (iii) certified copy of FIR, wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of the deceased. These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under Motor Vehicles Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Hence, this contention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on the part of the driver.
10.7 In view of the abovecited case law, it is clear that the Motor Accident Claims Tribunals only hold inquiry for determination of compensation on occurrence of an accident and they do not sit in a suit or adversarial lis in traditional sense. The factum of the driver of offending vehicle being chargesheeted by police after investigation of the criminal matter is also prima facie sufficient to infer that he was negligent and responsible for the incident in question. A Tribunal can certainly rely upon the records of the case of criminal matter to reach such Jawala Mukhi (LR) vs Arun Yadav & Ors.
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a conclusion.
10.8 In this matter to prove the rashness and negligence,
the petitioner side has examined PW-1 who has specifically deposed that deceased was hit by Truck bearing registration NO. DL1GC3338. He has also specifically deposed that the incident happened due to rash and negligent driving of respondent no.1 in driving the said vehicle. PW-1 has also exhibited FIR No. 0384/2022 as Ex.PW1/1, copy of chargesheet as Ex.PW1/2, Post Mortem report as Ex.PW1/3, mechanical inspection report as Ex.PW1/4 and MLC of deceased as Ex.PW1/7 in his evidence. Copy of chargesheet consists of site plan of place of incident, the mechanical inspection report of vehicle, copy of final report filed under Section 173 Cr. PC after conclusion of investigation, the recovery/seizure memo(s), photographs etc etc. The factum that driver of vehicle in question i.e. respondent No.1 was challaned under Section 279/304A IPC after conclusion of investigation also supports and affirms the case of the petitioner side that incident happened due to his rash and negligent driving of respondent no.1. Though respondents no.1 & 2 have deposed that the deceased was hit by another motorcycle before being hit by their vehicle and respondent no.1 had no negligence in the incident in question, but same is not acceptable given the fact that neither the make, colour and registration number of said motorcycle is provided nor they have agitated their false implication by IO before any authority/court. It appears to this Tribunal that said defence has been taken only for the purpose of taking defence without much sincerity. Hence, stands rejected. Perusal of site plan and copies of photographs reveals that Jawala Mukhi (LR) vs Arun Yadav & Ors.
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incident took place almost in the middle of the one side of road and it is main road divided by divider. The deceased was certainly crossing the road at a point which was not meant for crossing as there is no zebra crossing or traffic light at the spot to cross the road. In given circumstances, it is clear that the deceased has also contributory negligence in the incident and the incident has not happened solely due to rash and negligent driving of respondent no.1. Such pedestrian crossing the road cannot claim any specific precedence and responsibility for accident has to be shared by such pedestrian along with the driver of the offending vehicle. Reliance can be place upon the decision of Hon'ble High Court of Delhi in matter of New India Assurance Company Limited & Ors vs. Sunit Devi & Ors. MAC App. 609/2013/409/2014 decided on 31.10.2022 on the said issue/aspect.
10.9 So, in the given circumstances, the petitioner side has been able to establish on record that incident happened due to rash and negligent driving of vehicle bearing registration No. DL1GC3338 by respondent no.1, however, it cannot be said that the driver of the offending vehicle/respondent no.1 was solely responsible for the incident in question. In the opinion of this Tribunal, the deceased has also contributed to the incident in question. In the light of the aforesaid discussion, issue no.1 is partly decided in favour of the petitioner(s)/claimant(s) and is partly decided in favour of respondent No.01 to 03. Deceased and driver of the offending vehicle i.e. respondent no.1 are held liable for the incident in the ratio of 20:80 respectively. Issue No.(ii) : - Whether the applicants are entitled to compensation, if yes, of what amount and from whom? OPP.
Jawala Mukhi (LR) vs Arun Yadav & Ors.
[MACT No.1163/2022] Page No.14 of 30 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2024.07.19 15:31:36 +0530 11.1 The petitioner(s) is/are certainly entitled for compensation in view of decision of above issue. Before
proceeding further to decide the present issue, it would be apposite to encapsulate the law laid down by Hon'ble Supreme Court of India in its guiding lamp post judgments qua methodology and considerations for assessing/ascertaining just compensation in road vehicular death cases. 11.2 Hon'ble Supreme Court of India in matter of "Sarla Verma & Ors. Vs. Delhi Transport Corporation & Ors." (2003) 6 SCC 121 has held : -
QUA BASIC PRINCIPLES "9. 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 the
(c) the number of dependents. The 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 of the age of the deceased. If these determinants are standardized, there will be uniformity and consistency in the decisions.
There will lesser need for detailed evidence. It will also be easier for the insurance companies to settle accident claims without delay. To have uniformity and consistency, 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 balance, 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.
Jawala Mukhi (LR) vs Arun Yadav & Ors.
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Thereafter, a conventional amount in the range of Rs. 5,000/- to Rs.10,000/- may be added as loss of estate. Where the deceased is survived by his widow, another conventional amount in the range of 5,000/- to 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 cost of any medical treatment of the deceased before death (if incurred) should also added."
QUA ADDITIONS "11. ..................... In view of imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. [Where the annual income is in the taxable range, the words `actual salary' should be read as `actual salary less tax']. The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardize the addition to avoid different yardsticks being applied or different methods of calculations being adopted. Where the deceased was self-employed or was on a fixed salary (without provision for annual increments etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances."
QUA DEDUCTIONS "14. Having considered several subsequent decisions of this court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependant family members is 4 to 6, and one-fifth (1/5th) where the number of dependant family members exceed six.
15. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself.
Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent/s and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependent and the mother alone will be considered as a dependent. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependents, because they will either be independent and earning, or married, or be dependent on the father. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependent, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where family of the bachelor is large and dependent on the income of the deceased, as in a case where he has a widowed mother and large number of Jawala Mukhi (LR) vs Arun Yadav & Ors.
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younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third."
QUA MULTIPLIER "21. We therefore hold that the multiplier to be used should be as mentioned in column (4) of the Table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years."
11.3 Hon'ble Supreme Court of India in its constitution bench decision in matter of "National Insurance Company Limited Vs. Pranay Sethi & Ors." (2017) 16 SCC 680 held as under : -
"58. To lay down as a thumb rule that there will be no addition after 50 years will be an unacceptable concept. We are disposed to think, there should be an addition of 15% if the deceased is between the age of 50 to 60 years and there should be no addition thereafter. Similarly, in case of self- employed or person on fixed salary, the addition should be 10% between the age of 50 to 60 years. The aforesaid yardstick has been fixed so that there can be consistency in the approach by the tribunals and the Courts.
59. 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 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% Jawala Mukhi (LR) vs Arun Yadav & Ors.
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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.
11.4 In view of the above law laid down by Hon'ble Supreme Court of India, this Tribunal needs to ascertain the age of deceased/victim, the appropriate multiplier, income of the deceased at the time of incident, the educational qualification of deceased, the number of dependents, whether deceased was married or unmarried, whether deceased was having permanent employment or private job etc. etc. to workout just compensation in this case. Award also needs to be passed qua non-pecuniary heads as envisaged and in terms of above judgments. Hence, this Tribunal now proceeds further to decide the compensation/award under different heads applicable to the present matter in light of above prepositions.
DETERMINATION OF AGE & MULTIPLIER 11.5 The date of incident is 17.05.2022. As per PAN Card of deceased Ex.PW1/8, the date of birth of the deceased is 01.01.1946. Hence, deceased was 76 years of age at the time of incident and his age is considered accordingly. He fell in age bracket of above 65. Hence, the multiplier applicable to this case Jawala Mukhi (LR) vs Arun Yadav & Ors.
[MACT No.1163/2022] Page No.18 of 30 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2024.07.19 15:31:54 +0530 would be 05.
DETERMINATION OF EDUCATIONAL QUALIFICATION 11.6 No documentary proof has been filed by the petitioner side to prove the educational qualification of deceased. Hence, he shall be considered uneducated for purpose of present decision.
DETERMINATION OF MONTHLY INCOME 11.7(i) Petitioner side has claimed that deceased was working as security guard. But no documentary proof has been filed by the petitioner side to show the business/job/work and income of the deceased. Hence, the petitioner side has miserably failed to prove the employment/business/job and earnings of the deceased, therefore, the income of deceased has to be assessed on the basis of chart available in Minimum Wages Act of an Unskilled person of State of NCT of Delhi. The minimum wages for an Unskilled person of State of NCT of Delhi on the date of accident i.e. 17.05.2022 were Rs.16,506/- per month. 11.7(ii) Accordingly, the monthly income of the deceased needs to be considered as Rs.16,506/- per month on the date of accident.
DETERMINATION OF FUTURE PROSPECTS APPLICABLE 11.8(i) 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 has to be given in accordance with guidelines issued by Hon'ble Supreme Court of India as applicable to self employed or Jawala Mukhi (LR) vs Arun Yadav & Ors.
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privately employed persons.
11.8(ii) The deceased was aged more than 65 years,
therefore, no future prospects/benefits would be applicable to the present case.
DETERMINATION OF DEDUCTIONS 11.9 There is no dispute that the deceased is survived by his wife (petitioner no.1) and two married sons. Petitioner No.2 & 3 cannot be taken as dependent upon the deceased as they are major and no special case/circumstances pleaded and proved. Hence, only petitioner no.1(wife of the deceased) has to be considered as dependent upon the deceased. Deduction towards personal and living expenses of deceased needs to be taken 1/2nd in this matter. Hence, 1/2nd would be deducted towards personal and living expenses of the deceased.
DETERMINATION OF MULTIPLICAND 11.10 The monthly income of the deceased needs to be taken as Rs.16,506/-. A deduction of 1/2nd needs to be made towards personal and living expenses of the deceased. So, in this matter, monthly loss of dependency would come out to be Rs.8253/-(after deducting 1/2nd of Rs.16,506/-). This product needs to be multiplied by 12 to workout multiplicand/annual loss of dependency. Hence, multiplicand for this matter would be Rs.99,036/- (Rs.8253/- x 12).
AWARD TOWARDS LOSS OF DEPENDENCY 11.11 The total loss of dependency would come out to be Rs.4,95,180/- (Rs.99,036x 05), hence, so awarded. COMPENSATION QUA NON-PECUNIARY HEADS COMPENSATION QUA LOSS OF ESTATE Jawala Mukhi (LR) vs Arun Yadav & Ors.
[MACT No.1163/2022] Page No.20 of 30 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2024.07.19 15:32:04 +0530 11.12 The loss of estate is awarded as Rs.18,000/- (15,000/- + 20% enhancement). COMPENSATION QUA LOSS OF CONSORTIUM 11.13 Since, there are three claimants who are wife and
two sons of the deceased entitled to award under this head, hence, an amount of Rs.48,000/- (Rs.40,000 + 20% enhancement) is awarded under this head.
COMPENSATION QUA FUNERAL EXPENSES 11.14 An amount of Rs.18,000/- (15,000/- + 20% enhancement) is awarded towards funeral expenses. TOTAL AWARD AMOUNT OF ALL HEADS 11.15 In view of above discussions and awards passed under different heads, this Tribunal hereby pass an award of sum of Rs.4,63,344/- (Rupees Four Lakhs Sixty Three Thousand Three Hundred and Forty Four Only) [after deducting 20% on account of contributory negligence of the deceased] [Rs.5,79,180/- - Rs.1,15,836/-(20%)] in favour of petitioner(s) and against the respondents.
R E L I EF / ISSUE NO.03
12. This Tribunal hereby pass an award of Rs.4,63,344/- (Rupees Four Lakhs Sixty Three Thousand Three Hundred and Forty Four Only) as compensation along-with interest @ 7% per annum (including interim award, if any) from the date of filing the DAR/claim petition i.e. 31.08.2022 till the date of the payment of award amount, in favour of the petitioner(s) and against the respondents on account of their liability being joint and several.
Jawala Mukhi (LR) vs Arun Yadav & Ors.
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SINGH Date: 2024.07.19
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APPORTIONMENT OF LIABILITY
13.1 It is the contention of the respondent Insurance
Company that the respondent No.1 was not holding any valid and effective driving license at the time of the accident. The insurance company has examined its Deputy Manager, Ms. Bharti Meena as R3W1 in the present matter. She has filed copy of insurance policy of vehicle bearing registration No. DL01GC3338 Ex.R3W1/1 and her authority letter Ex. R3W1/B in her evidence. She has deposed that respondent no.1 had no endorsement upon his driving license Ex.C1 authorizing him to drive a vehicle carrying hazardous goods. The vehicle in question at the time of incident was carrying LPG gas cylinders. 13.2 On the other hand, respondent no.2 has examined Sh. Sanjeev Kumar, Field Executive from M/s Om Sai Motor Driving Training School, A-041, Sector 69, TPT Nagar, Noida as R2W2. He has exhibited his authority letter Ex. R2W2/A, copy of gazette notification of Government of UP along with notification of M/s Om Sai Motor Driving Training School to be granted recognization and permission for parting training in driving vehicles carrying hazardous goods Ex.R2W2/C, attested copy of Form 11 issued by office of Transport Commissioner Meerut to their training School Ex.R2W2/D, attested copy of training certificate dated 19.02.2020 issued to Sh. Arun Yadav qua his having attended training program of safe transportation of hazardous goods from 19.02.2020 to 21.02.2020 Ex. R2W2/E, attested copy of latest certificate issued by office of Deputy Transport Commissioner, Meerut qua licence to their school for permission qua imparting training in driving Jawala Mukhi (LR) vs Arun Yadav & Ors.
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dangerous/hazardous goods vehicles dated 08.02.2024 Ex. R2W2/F in his evidence.
13.3 In view of the evidence of R2W2, it is clear that the respondent no.1 had already received training qua safe transportation of hazardous goods from a authorized training centre for the same having validity covering the date of incident. The respondent no.1 certainly had no endorsement upon his driving license Ex. C1 qua same. Hon'ble High Court of Delhi in the matter titled as "National Insurance Co. Ltd. vs. Sonia Mittal & Ors." MAC Appeal No. 1043/2016 decided on 12.10.2017 has held as under:-
"11.Coming to the defence taken by the insurance company vis-à- vis the driver and owner of the offending vehicle, what distinguishes the case at hand is that the driver of the offending vehicle had undergone the requisite training which had been duly certified. There is nothing on record to show that the insurance company raises questions about the validity of the training certificate. It is insisting merely on the fact that there was no endorsement secured from the transport authority in terms of the requirement under the rules. That, however, ought not cut any ice. What is the crucial requirement is the special training for driving a vehicle meant for transportation of hazardous goods. That requirement had been fulfilled. Securing of endorsement in wake of such certification of the special skill was more of ministerial nature. The rule of main purpose would apply [see National Insurance Company V. Swaran Singh (2004) 3 SCC 297]. The plea of insurers for recovery rights is, therefore, rejected.
13.4 R1W1/respondent no.1/driver and R2W1/respondent no.2/owner have also deposed in their cross-examination that the respondent no.1 was only carrying empty gas cylinders in the vehicle in question at the time of incident. The said depositions of R2W1 and R2W2 were not controverted by insurance company during their further cross-examination. The Hon'ble Jawala Mukhi (LR) vs Arun Yadav & Ors.
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High Court of Karnataka in matter titled as " Ninganagouda S/o Bharamagouda Co. vs. Sanju S/o Pamparao Javalkar " decided on 13.08.2019, has held as under:-
"The empty LPG Gas Cylinder is neither prohibited nor hazardous goods which require a special permission or special endorsement in the driving license".
13.5 In view of above, it is clear that the respondent no.1 had already under gone requisite training for transportation of hazardous goods, therefore, the contention of respondent Insurance Company to provide them recovery rights against respondent no.1 & 2 is hereby rejected. It is also come on record that empty gas cylinders were being carried by respondent no.1 in his vehicle at the time of incident. Hence contention of the respondent no.3 is not liable to be granted for said reason also. 13.6 As the offending vehicle was admittedly insured with the respondent no.03/Insurance company, respondent no.03/insurance company is hereby directed to deposit the award amount in favour of the petitioner(s) with State Bank of India, Tis Hazari Courts, Delhi in MACT Account of this Tribunal having Account No.40711767202, CIF No.90891362578, IFSC Code - SBIN0000726, Tis Hazari Courts, Delhi within a period of 45 days from the date of passing of this award together with the interest as stated herein above under intimation to this Tribunal and under intimation to the petitioner(s)/claimant(s)/applicant(s). In case of any delay, it shall be liable to pay interest at the rate of 9% per annum for the period of delay.
MODE OF DISBURSEMENT OF THE AWARD AMOUNT TO THE CLAIMANT(S) AS PER THE PROVISIONS OF THE Jawala Mukhi (LR) vs Arun Yadav & Ors.
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SINGH Date: 2024.07.19
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'MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE' (MCTAP).
14.1 Hon'ble High Court of Delhi in FAO No.842/2003 titled as "Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors. " has formulated MACAD (Motor Accident Claims Annuity Deposit Scheme) vide its order dated 07.12.2018. The same has been made effective from 01.01.2019. Said order provides 21 banks including State Bank of India as one of the banks which have 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 Hon'ble High Court of Delhi. 14.2 The Manager, State Bank of India, Tis Hazari Courts, Delhi is also directed to release/disburse share of the award amount of petitioners in the account to be disclosed by the petitioner side vide separate application within 15 days from today as mentioned/directed hereinafter in tabulated form. 14.3 The compensation to the petitioners shall be distributed/disbursed as follows : -
Sr. Name of Age/ Relation Award Amount of Amount kept Period of FDRs No. petitioner DOB with Amount award to be in FDRs with cumulative / injured/ released interest claimant deceased
1. Jwala 01.01.19 wife 3,97,344/- 97,344/- Rs.3,00,000/- Rs.3,00,000/- + Mukhi 49 + interest interest accrued accrued shall be kept in the form of equal monthly FDRs of Rs.15,000/- for the period of 20 months + months which comes out of division of interest accumulated by Jawala Mukhi (LR) vs Arun Yadav & Ors.[MACT No.1163/2022] Page No.25 of 30 Digitally signed by HARVINDER
HARVINDER SINGH
SINGH Date: 2024.07.19
15:32:33 +0530
Rs.15,000/-.
The remainder,
if any to be
added in the last
FDR. The
amount of
FDRs along-
with interest
after maturity
shall be released
to the
petitioner
/claimant on
monthly basis
as per above
previous orders.
2. Manoj Not Son 33,000/ 33,000/- Nil Nil
Jha mention
ed
3. Mithlesh 15.06.19 Son 33,000/ 33,000/- Nil Nil
Kumar 79
Jha
TOTAL Rs.4,63,344/-
14.4 The following conditions shall be adhered to by
SBI, Tis Hazari Delhi with respect to the fixed deposits:-
(a) The Bank shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the 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 maturity amounts of the FDR(s) be credited by Electronic Clearing System (ECS) in the MACT bank account of the claimant (s) near the place of their residence.
(d) No loan, advance, withdrawal or pre-mature discharge be allowed on the fixed deposits without permission of the Court.
(e) The concerned bank shall not issue any cheque book and/or debit card to claimant(s).
Jawala Mukhi (LR) vs Arun Yadav & Ors.
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SINGH Date: 2024.07.19
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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.
(f) 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.
(g) 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.
14.5 In accordance with the orders dated 08.02.2019 passed by Hon'ble High Court of Delhi in FAO no. 842/2003 in "Rajesh Tyagi and others Vs. Jaibir Singh and Ors." , Mr. Rajan Singh, Assistant General Manager has been appointed as Nodal Officer of State Bank of India having Phone No.022- 22741336/9414048606 and e mail ID [email protected]. In case of any assistance or non compliance, the aforesaid Nodal Officer may be contacted. 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 Hon'ble High Court of Delhi as given 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 Hon'ble High Court of Delhi.
15. The respondent no.03/Insurance Company shall deposit the award amount with the account of this Tribunal Jawala Mukhi (LR) vs Arun Yadav & Ors.
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within 45 days. Nazir of this Court shall prepare a separate file regarding the status of deposition/non-deposition of the award amount by the respondent(s) after making necessary entry on CIS on 30.08.2024.
16. A digital copy of this award be forwarded to the parties free of cost through email.
17. Ahlmad staff is directed to send the copy of award to Ld. Judicial Magistrate First Class concerned and Delhi Legal Services Authority in view of Central Motor Vehicles (fifth Amendment) Rules, 2022[(Directions at serial nos.39, 40 of Procedure for Investigation of Motor Vehicle Accidents (under Rule 150A)].
18. Ahlmad staff is also directed to e-mail an authenticated copy of the award to the insurer as directed by the Hon'ble Supreme Court of India in WP (Civil) No. 534/2020 titled as "Bajaj Allianz General Insurance Co. Pvt. Ltd. Vs. Union of India & Ors." decided on 16.03.2021. Ahlmad shall also e-email an authenticated copy of the award to Branch Manager, State Bank of India, Tis Hazari Court Complex Branch for information.
19. File be consigned to Record Room after due Digitally signed compliance. by HARVINDER HARVINDER SINGH Announced in the open Court SINGH Date: 2024.07.19 today i.e. 18th July, 2024 15:32:48 +0530 (HARVINDER SINGH) District Judge-cum-PO: MACT-01(West) THC/Delhi/18.07.2024 Jawala Mukhi (LR) vs Arun Yadav & Ors.
[MACT No.1163/2022] Page No.28 of 30FORM -XV SUMMARY OF COMPUTATION OF AWARD AMOUNT IN DEATH CASES
1. Date of accident : 17.05.2022
2. Name of the deceased : Gaya Nand Jha
3. Age of the deceased : 01.01.1946
4. Occupation of the deceased : Not proved
5. Income of the deceased : Rs.16,506/-
6. Name, age and relationship of legal representative of deceased : -
S.No. Name Age/DOB Relation
(i) Jwala Mukhi 01.01.1949 wife
(ii) Manoj Jha Not mentioned Son
(iii) Mithlesh Kumar Jha 15.06.1979 Son
Computation of Compensation : -
Sr.No. Heads Awarded by the Claim
Tribunal
7. Income of the deceased(A) Rs.16,506/-
8. Add-Future Prospects (B) Nil
9. Less-Personal expenses of the 1/2nd deduction has
deceased(C) been done
10. Monthly loss of dependency Rs.8253/-
[(A+B)-C=D]
11. Annual loss of dependency (D Rs.99,036/-
x 12)
12. Multiplier(E) 05
13. Total loss of dependency Rs.4,95,180/-
(Dx12xE= F)
14. Medical Expenses(G) NIL
15. Compensation for loss of Rs.48,000/-
consortium(H)
Jawala Mukhi (LR) vs Arun Yadav & Ors.
[MACT No.1163/2022] Page No.29 of 30
Digitally signed
by HARVINDER
HARVINDER SINGH
SINGH Date: 2024.07.19
15:32:56 +0530
16. Compensation for loss of love NIL
and affection(I)
17. Compensation for loss of Rs.18,000/-
estate(J)
18. Compensation towards funeral Rs.18,000/-
expenses(K)
19. TOTAL COMPENSATION Rs.4,63,344/-
(F+G+H+I+J+K=L)
[after deducting 20% on
account of contributory
negligence of the
deceased]
[Rs.5,79,180/- -
Rs.1,15,836/-(20%)]
20. RATE OF INTEREST 7% per annum
AWARDED
21. Interest amount up to the date Rs.61,084/-
of award (M) (w.e.f. 31.08.2022 to
18.07.2024 i.e. 1 year
10 months and 18 days)
22. Total amount including interest Rs.5,24,428/-
(L + M) (Rs.4,63,344/- +
Rs.61,084/-)
23. Award amount released Rs.1,63,344/-
24. Award amount kept in FDRs Rs.3,00,000/- along with
interest accrued.
25. Mode of disbursement of the Mentioned in the award
award amount to the claimant
(s).
26. Next date for compliance of 30.08.2024
the award.
Digitally signed by
HARVINDER HARVINDER SINGH
SINGH Date: 2024.07.19
15:33:03 +0530
(HARVINDER SINGH)
District Judge-cum-PO: MACT-01(West) THC/Delhi/18.07.2024 Jawala Mukhi (LR) vs Arun Yadav & Ors.
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