Delhi District Court
Sushila vs . Keertan & Ors. on 28 February, 2022
MACP Nos. 4825/16, 4826/16, 5449/16, 5450/16 and 4910/16, FIR No. 669/12; PS.Narela
IN THE COURT OF SHRI DEVENDER KUMAR JANGALA,
PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNAL,
ROHINI COURTS, DELHI
MAC Petition No. 4825/16
Sushila Vs. Keertan & Ors.
1. Smt. Sushila(since deceased being
represented through her legal heirs/petitioners no.2 to 6)
W/o Late Sh. Moti Chand
2. Smt. Urmila
W/o Chhathu lal
3. Sh. Shankar
S/o Late Sh. Moti Chand
4. Bhuttan
S/o Late Sh. Moti Chand
5. Nirmala
W/o More Ram
6. Parmila
W/o Murari
All R/o A973, PhaseI, Metro Vihar,
Holambi Kalan, Delhi.
.......Petitioners
VERSUS
1. Sh. Keertan .....Driver
S/o Sh. Tej Ram
R/o RRE, Fatehgarh, District Farrukhabad, UP
Sushila, Subhash Chand, Krishna, Ashok Shah and Hanuman Vs. Keertan & Ors. Page 1 of 45
MACP Nos. 4825/16, 4826/16, 5449/16, 5450/16 and 4910/16, FIR No. 669/12; PS.Narela
2. Sh. Ranbir Singh ........Owner
S/o Sh. Jagat Singh Khatri
R/o VPO Shahpur Garhi,
Narela, Delhi110040
3. The Oriental Insurance Company Ltd. .......Insurer
19A, Second Floor, Sarti Complex,
Jwala Heri Market, Paschim Vihar,
Delhi110063
4. Sh. Hanuman Prasad ......Driver
S/o Sh. Ram Singh
R/o C118, PhaseII, Metro Vihar,
Holambi Kalan, Delhi.
5. Sh. Jeet Lal Yadav ......Owner
S/o Sh. Sant Ram Yadav
R/o 16/69, Block H16, Bapa Nagar,
Karol Bagh, Delhi. ........Respondents
MAC Petition No. 4826/16
Subhash Chand Vs. Keertan & Ors.
1. Sh. Subash Chand
S/o Sh. Bhim Chand,
R/o A906, PhaseII, Metro Vihar,
Holambi Kalan, Delhi.
.......Petitioner
VERSUS
1. Sh. Keertan .....Driver
S/o Sh. Tej Ram
R/o RRE, Fatehgarh, District Farrukhabad, UP
Sushila, Subhash Chand, Krishna, Ashok Shah and Hanuman Vs. Keertan & Ors. Page 2 of 45
MACP Nos. 4825/16, 4826/16, 5449/16, 5450/16 and 4910/16, FIR No. 669/12; PS.Narela
2. Sh. Ranbir Singh ......Owner
S/o Sh. Jagat Singh Khatri
R/o VPO Shahpur Garhi,
Narela, Delhi110040
3. The Oriental Insurance Company Ltd. ......Insurer
19A, Second Floor, Sarti Complex,
Jwala Heri Market, Paschim Vihar,
Delhi110063
4. Sh. Hanuman Prasad .....Driver
S/o Sh. Ram Singh
R/o C118, PhaseII, Metro Vihar,
Holambi Kalan, Delhi.
5. Sh. Jeet Lal Yadav ......Owner
S/o Sh. Sant Ram Yadav
R/o 16/69, Block H16, Bapa Nagar,
Karol Bagh, Delhi. ........Respondents
MAC Petition No. 5449/16
Krishna Vs. Keertan & Ors.
1. Sh. Krishna
S/o Sh. Lal Bahadur
R/o A101, Metro Vihar,
Holambi Kalan, Delhi
.......Petitioner
VERSUS
1. Sh. Keertan .....Driver
S/o Sh. Tej Ram
R/o RRE, Fatehgarh, District Farrukhabad, UP
Sushila, Subhash Chand, Krishna, Ashok Shah and Hanuman Vs. Keertan & Ors. Page 3 of 45
MACP Nos. 4825/16, 4826/16, 5449/16, 5450/16 and 4910/16, FIR No. 669/12; PS.Narela
2. Sh. Ranbir Singh .......Owner
S/o Sh. Jagat Singh Khatri
R/o VPO Shahpur Garhi,
Narela, Delhi110040
3. The Oriental Insurance Company Ltd. ......Insurer
19A, Second Floor, Sarti Complex,
Jwala Heri Market, Paschim Vihar,
Delhi110063
4. Sh. Hanuman Prasad ......Driver
S/o Sh. Ram Singh
R/o C118, PhaseII, Metro Vihar,
Holambi Kalan, Delhi.
5. Sh. Jeet Lal Yadav .......Owner
S/o Sh. Sant Ram Yadav
R/o 16/69, Block H16, Bapa Nagar,
Karol Bagh, Delhi. ........Respondents
MAC Petition No. 5450/16
Ashok Shah Vs. Keertan & Ors.
1. Smt. Asha Devi(since deceased through her legal heir/petitioner
no.2)
W/o Sh. Ashok Shah
Through Lrs. Sh. Jai Ram Shah(Son)
Sh. Jai Shankar Kumar(son)
Smt. Sita Kumari(daughter)
Sh. Ashok Shah(Husband)
2. Sh. Ashok Shah
S/o Sh. Bhola Shah
Both R/o A1305, Metro Vihar,
Holambi Kalan, Delhi. .......Petitioners
Sushila, Subhash Chand, Krishna, Ashok Shah and Hanuman Vs. Keertan & Ors. Page 4 of 45
MACP Nos. 4825/16, 4826/16, 5449/16, 5450/16 and 4910/16, FIR No. 669/12; PS.Narela
VERSUS
1. Sh. Keertan .....Driver
S/o Sh. Tej Ram
R/o RRE, Fatehgarh, District Farrukhabad, UP
(Driver)
2. Sh. Ranbir Singh .....Owner
S/o Sh. Jagat Singh Khatri
R/o VPO Shahpur Garhi,
Narela, Delhi110040
3. The Oriental Insurance Company Ltd. ....Insurer
19A, Second Floor, Sarti Complex,
Jwala Heri Market, Paschim Vihar,
Delhi110063
4. Sh. Hanuman Prasad .....Driver
S/o Sh. Ram Singh
R/o C118, PhaseII, Metro Vihar,
Holambi Kalan, Delhi.
5. Sh. Jeet Lal Yadav .....Owner
S/o Sh. Sant Ram Yadav
R/o 16/69, Block H16, Bapa Nagar,
Karol Bagh, Delhi. ........Respondents
MAC Petition No. 4910/16
Hanuman Vs. Keertan & Ors.
1. Sh. Hanuman Prasad
S/o Sh. Ram Singh
R/o C118, PhaseII, Metro Vihar,
Holambi Kalan, Delhi.
.......Petitioner
Sushila, Subhash Chand, Krishna, Ashok Shah and Hanuman Vs. Keertan & Ors. Page 5 of 45
MACP Nos. 4825/16, 4826/16, 5449/16, 5450/16 and 4910/16, FIR No. 669/12; PS.Narela
VERSUS
1. Sh. Keertan ......Driver
S/o Sh. Tej Ram
R/o RRE, Fatehgarh, District Farrukhabad, UP
2. Sh. Ranbir Singh .....Owner
S/o Sh. Jagat Singh Khatri
R/o VPO Shahpur Garhi,
Narela, Delhi110040
3. The Oriental Insurance Company Ltd. ....Insurer
19A, Second Floor, Sarti Complex,
Jwala Heri Market, Paschim Vihar,
Delhi110063
........Respondents
Date of filing in MACP no.4825/16 and 4826/16 : 16.04.2013
Date of filing in MACP no. 5449/16 and 5450/16 : 04.04.2014
Date of filing in MACP no. 4910/16 : 16.04.2013
Date of arguments : 14.02.2022
Date of judgment : 28.02.2022
APPEARENCES
Sh.Avaneesh Rai and Sh. Kuldeep Kumar, Ld.counsel for petitioners
in MACP no. 4825/16 and 4826/16.
Sh. Ramesh Chander, Ld.counsel for petitioners in MACP no.
5449/16 and 5450/16.
Sh. Suraj Prakash Sharma, Ld.counsel for petitioner in MACP
no.4910/16.
Respondent no.1 is already exparte.
Sh. Piyush Mittal, Ld.counsel for respondent no.2.
Sh. M. Awasthi, Ld.counsel for respondent no.3/insurance company.
Sh. Suraj Prakash, Ld.counsel for respondent no.4 in MACP no.
Sushila, Subhash Chand, Krishna, Ashok Shah and Hanuman Vs. Keertan & Ors. Page 6 of 45
MACP Nos. 4825/16, 4826/16, 5449/16, 5450/16 and 4910/16, FIR No. 669/12; PS.Narela
4825/16, 4826/16, 5449/16 and 5450/16.
None for respondent no.5 in MACP no. 4825/16, 4826/16,
5449/16 and 5450/16.
Petition under Section 166 and 140 of M.V. Act, 1988
for grant of compensation
AWARD:
1. Vide this common order, I shall dispose of all these five claim
petitions filed by the petitioners with regard to fatal injuries sustained by Sh.
Moti Chand(MACP No. 4825/16), Sh. Jai Prakash (In MACP no.5450/16)
and injuries sustained by Sh.Subhash Chand (MACP No. 4826/16), Smt.
Krishna(in MACP no.5449/16) Sh.Hanuman (MACP No 4910/16) in Motor
Vehicular Accident which occurred on 12.12.2012 at about 12.00 midnight
near Holambi More, Near Tyagi Farm House, Alipur Narela Road, Narela,
Delhi, involving tempo bearing registration no.DL1LG5256 (alleged
offending vehicle) being driven in rash and negligent manner by its driver(R
1 herein).
2. All these claim petitions were consolidated for the purpose of
recording evidence vide order dated 27.10.2017 passed by my
Ld. Predecessor and MACP No. 5450/16 titled as " Ashok Shah & Ors.
Vs. Keertan & Ors" was treated as the leading case. Accordingly, the
evidence was led on behalf of both the sides in the leading case for the
purpose of these matters.
Sushila, Subhash Chand, Krishna, Ashok Shah and Hanuman Vs. Keertan & Ors. Page 7 of 45
MACP Nos. 4825/16, 4826/16, 5449/16, 5450/16 and 4910/16, FIR No. 669/12; PS.Narela
FACTS OF THE CASES
3. Brief facts of the cases are that on 12.12.2012 the injured Sh. Subhash Chand(injured in MACP no.4826/16), Sh. Moti Chand(deceased in MACP no.4825/16), Smt. Krishna (injured in MACP no. 5449/16) and Sh. Jai Prakash (deceased in MACP no. 5450/16 were travelling in the TSR, which was being driven by Sh. Hanuman(injured in MACP no.4910/16) and at about 12.00 midnight when they reached at Holambi More, Near Tyagi Farm House Alipur Narela Road, Narela, Delhi in the meantime one tempo bearing registration no. DL1LG5256 being driven in a rash and negligent manner by respondent no.1 Sh. Keertan came from opposite side at a very high speed being driven in a most rashly and negligently came from wrong side of the road and hit the TSR with great force. Due to impact of accident all the occupants suffered injuries. They were removed to SRHC Hospital where Sh. Moti Chand and Sh. Jai Prakash were declared brought dead. The said tempo bearing registration no. DL1LG5256 was being driven by Sh. Keertan/R1 at very high speed, in rash and negligent manner. FIR No. 669/12, u/s. 279/337/304A IPC was registered at PS. Narela, Delhi with regard to the said accident. The said offending vehicle was owned by respondent no.2 and it was insured with The Oriental Insurance Co. Ltd./respondent no. 3 during the period in question. IN the claim petitions bearing no. 4825/16, 4826/16 and 5449/16 the driver and owner of the TSR have been impleaded as respondents no.4 and 5 respectively.
4. Respondent no.1/driver of tempo bearing registration no.DL Sushila, Subhash Chand, Krishna, Ashok Shah and Hanuman Vs. Keertan & Ors. Page 8 of 45 MACP Nos. 4825/16, 4826/16, 5449/16, 5450/16 and 4910/16, FIR No. 669/12; PS.Narela 01LG5256 has neither appear nor filed reply despite repeated opportunities and hence, he was proceeded exparte vide order dated 04.07.2014.
5. Respondent no.2 filed written statement thereby stating therein that the petitions are vague, evasive and lacks in material particulars and is a misuse of the court just to extort money illegally from respondent. It is stated that the vehicle was handed over to respondent no.1 for repair purposes and it was under breakdown condition and was neither permitted nor fit for carrying out any commercial activity. That at the time of accident the vehicle was not loaded with goods or carrying passengers and was empty in breakdown condition. That the accident has taken place due to negligence of TSR driver as he was driving his TSR in contravention of Motor Vehicles Act and the TSR was highly overloaded. That the petition is bad for non joinder of proper and necessary parties. The avements on merits are denied. The factum and manner of accident is denied. It is denied that respondent no.2/owner of tempo bearing no. DL01LG5256 is liable to pay compensation.
6. Respondent no.3 Oriental Insurance company filed written statement thereby stating therein that the petition is bad for mis joinder and non joinder of necessary parties. That the accident had occurred due to rash and negligent driving of TSR no. DL1RK4796. That the alleged vehicle bearing no. DL01LG5256 was being driven without valid permit. It Sushila, Subhash Chand, Krishna, Ashok Shah and Hanuman Vs. Keertan & Ors. Page 9 of 45 MACP Nos. 4825/16, 4826/16, 5449/16, 5450/16 and 4910/16, FIR No. 669/12; PS.Narela is admitted that the vehicle no. DL01LG5256 was insured with it vide policy no. 272600/31/2013/3101 valid for the period from 14.09.2012 to 13.09.2013. It is denied that the insurance company is liable to pay compensation.
7. Respondent no.4/driver of TSR has not filed reply despite opportunities and hence his defence was struck off vide order dated 16.09.2016.
8. None has appeared on behalf of respondent no.5/owner of TSR despite service by way of publication and hence his defence was also struck off vide order dated 16.09.2016.
9. The perusal of the record reveals that issues in the present cases were framed vide order dated 16.09.2016. Issues in all the claim petitions, except in claim petition bearing no. 4910/16 titled as Hanuman Vs. Keertan & ors. are almost same except the name of injured/deceased. Hence, in order to avoid repetition the issues in all the claim petitions, except in claim petition bearing no. 4910/16 titled as Hanuman Vs. Keertan & ors are consolidated as under:
1) Whether the deceased Jai Parkash and Moti Chand suffered fatal injuries and injured Krishna and Subhash suffered injuries in the road traffic accident on 12.12.2012 at 12.00 am (midnight) at Holambi Mod, Near Tyagi Farmhouse, AlipurNarela Road, Delhi within Sushila, Subhash Chand, Krishna, Ashok Shah and Hanuman Vs. Keertan & Ors. Page 10 of 45 MACP Nos. 4825/16, 4826/16, 5449/16, 5450/16 and 4910/16, FIR No. 669/12; PS.Narela the jurisdiction of PS Narela, due to composite negligence on the part of the R1 and R4 who were driving tempo bearing registration no. DL 1LG5656 and TSR no. DL1RA4796 respectively, owned by R2 and R5 respectively and tempo insured with r3? OPP.
2) Whether the Lrs of deceased and injured are entitled to any compensation if so to what amount and from whom? OPP.
3) Relief.
10. From pleading of the parties, the following issues were framed in MACP no. 4910/16 titled as Hanuman Vs. Keertan & ors. by my Ld. Predecessor vide order dated 16.09.2016:
1) Whether the Injured Hanuman Prasad suffered injuries in the road traffic accident on 12.12.2012 at 12.00 am (midnight) at Holambi Mod, Near Tyagi Farmhouse, AlipurNarela Road, Delhi within the jurisdiction of PS Narela, due to rashness and negligence on the part of the R1 who was driving tempo bearing registration no. DL1LG5256 owned by R2 and insured with R3? OPP.
2) Whether the injured is entitled to any compensation if so to what amount and from whom? OPP.
3) Relief.
Sushila, Subhash Chand, Krishna, Ashok Shah and Hanuman Vs. Keertan & Ors. Page 11 of 45MACP Nos. 4825/16, 4826/16, 5449/16, 5450/16 and 4910/16, FIR No. 669/12; PS.Narela
11. In order to establish their claim, the petitioners have examined 6 witness. The injured Subhash Chand examined himself as PW1, claimant Sh. Ashok Shah in MACP no. 5450/16 as PW2, Sh. Bhuttan as PW3, claimant Sh. Krishna as PW4, Ms. Sapna, Medical Record Technician from Saroj Hospital as PW5, Dr. Ashutosh Gupta as PW6. No other witness was examined on behalf of petitioners and PE was closed vide order dated 02.09.2019. On the other hand respondent no.3 examined Sh. G. R. Meena, Record Incharge, Auto and Taxi Unit as R3W1, Sh. Prem Singh, Dealing Assistant from State Transport Authority as R3W2, respondent no.4 Sh. Hanuman Prasad as R3W3, Ms. Shobha Khatak, Administrative Officer of the insurance company as R3W4 and Sh. Rajendra Kumar, Head Assistant from ARTO, Farrukhabad, UP as R3W5. No other witness was examined on behalf of respondents and RE was closed vide order dated 27.03.2021.
12. I have heard the arguments advanced by Ld. Counsels for the parties. My findings on the issues are as under:
13. Before proceeding further, it is relevant to mention here that since this is a claim petition under Section 166 and 140 of Motor Vehicle Act, the petitioner is required to prove negligence on the part of driver of offending vehicle in causing the accident and that he is entitled to compensation, if any. In the connected case bearing MACP No. 4910/16 titled as Hanuman Vs. Keertan, the petitioner namely Hanuman has Sushila, Subhash Chand, Krishna, Ashok Shah and Hanuman Vs. Keertan & Ors. Page 12 of 45 MACP Nos. 4825/16, 4826/16, 5449/16, 5450/16 and 4910/16, FIR No. 669/12; PS.Narela neither himself appeared in the witness box nor examined any other witness in order to prove his case.
14. Though the Motor Vehicle Act is a benevolent legislation but it does not mean that the tribunal should ignore all basic principles of law in determining claim for compensation. The Hon'ble Supreme Court in The Oriental Insurance Company Ltd. Vs. Meena Variyal & Ors., Appeal (civil) no.5825/06 has held that:
9. Before we proceed to consider the main aspect arising for decision in this Appeal, we would like to make certain general observations. It may be true that the Motor Vehicles Act, insofar as it relates to claims for compensation arising out of accidents, is a beneficent piece of legislation. It may also be true that subject to the rules made in that behalf, the Tribunal may follow a summary procedure in dealing with a claim. That does not mean that a Tribunal approached with a claim for compensation under the Act should ignore all basic principles of law in determining the claim for compensation".
15. It is well settled law that the petitioner has to prove its case. Issues in the aforesaid cases were framed on 16.09.2016 and thereafter the matter was put for evidence of petitioner, however, petitioner Sh. Hanuman in his case has not appeared in witness box nor examined any other Sushila, Subhash Chand, Krishna, Ashok Shah and Hanuman Vs. Keertan & Ors. Page 13 of 45 MACP Nos. 4825/16, 4826/16, 5449/16, 5450/16 and 4910/16, FIR No. 669/12; PS.Narela witness in order to prove the negligence on the part of driver of offending vehicle and PE was closed vide order dated 02.09.2021. In the aforesaid case, the petitioner has fails to prove the necessary ingredients of claim for compensation under Section 166(4) of Motor Vehicles Act.
16. Though it is true that the other witnesses examined on behalf of petitioners have deposed about the manner and factum of accident and filed documents in support of their submissions but the petitioner in the present case has not examined any witness or filed documents in support of his claim. The petitioner has not filed any document to show that he suffered any injuries in the present accident. The petitioner has also not proved his avocation and income by cogent evidence. The petitioner has failed to prove any loss of income being suffered due to the injuries in the present case, as claimed. The petitioner has failed to prove his claim by cogent evidence. Hence, the claim petition bearing no. 4910/16 titled as Hanuman Vs. Keertan & Ors. is dismissed.
ISSUE NO. 1 ( IN CASES BEARING MACP NO. 4825/16, 4826/16, 5449/16 and 5450/16.
17. For the purpose of this issue, the testimony of injured Subhash Chand and Smt. Krishna is relevant. Other witnesses examined on behalf of petitioners are not eyewitness of the accident. PW1 Sh. Subhash Chand and PW4 Sh. Krishna adduced evidence by way of affidavit Ex. PW1/A and PW4/A respectively. They deposed that on 12.12.2012 at about 12.00 AM, Sushila, Subhash Chand, Krishna, Ashok Shah and Hanuman Vs. Keertan & Ors. Page 14 of 45 MACP Nos. 4825/16, 4826/16, 5449/16, 5450/16 and 4910/16, FIR No. 669/12; PS.Narela they were going in the TSR from Azadpur to Metro Vihar and when they reached at Holambi Mor, near Tyagi Farm House, Alipur Narela road, in the meantime one tempo bearing no. DL1LG5256 came from opposite direction at a very high speed, driven rashly and negligently came on the wrong side of the road and hit the TSR, as a result of which the occupants of the TSR suffered injuries. They were removed to SRHC Hospital. They relied upon the copies of criminal case record Ex. PW2/3(colly) and the DAR Ex. PW1/5(colly).
18. In his crossexamination PW1 Sh. Subhash Chand denied the suggestion that the accident took place due to the sole negligence on the part of TSR driver or that there was no negligence at all on the part of driver of tempo no. DL1LG5256. PW4 sh. Krishna also denied the suggestion the accident in question took place due to sole negligence on the part of TSR driver or that there was no negligence on the part of tempo driver. He admitted in the crossexamination that there was head on collision between the tempo and TSR. Thereafter he voluntarily stated that the driver of tempo had come on the wrong side of the road.
19. It is argued on behalf of insurance company of tempo bearing no. DL01LG5256/respondent no.3 that there was head on collision between both the vehicles and the accident took place due to composite negligence.
Sushila, Subhash Chand, Krishna, Ashok Shah and Hanuman Vs. Keertan & Ors. Page 15 of 45MACP Nos. 4825/16, 4826/16, 5449/16, 5450/16 and 4910/16, FIR No. 669/12; PS.Narela
20. It is evident from the testimony of PW1 and PW4 that the respondents could not impeach their testimony through litmus test of cross examination and said witnesses are found to have successfully withstood the test of crossexamination. Even otherwise, the testimony of said witnesses inspire confidence as they themselves are shown to have sustained injuries due to the accident. PW1 and PW4 who are injured/eyewitness of the accident have deposed that the accident took place due to rash and negligent driving of the tempo bearing no. DL1LG 5256 and he was also coming on the wrong side. From the site plan it is clear that it was tempo bearing no. DL1LG5256 which had come in the carriage way of TSR and then hit the TSR. Moreover, it is an undisputed fact that FIR No. 669/12 u/s 279/337/338/304A IPC was registered at PS. Narela with regard to accident in question. Copy of said FIR (which is part of DAR would show that same was registered on 12.12.2012 i.e. on the date of accident itself on the basis of statement of injured Krishna/PW4. Thus, FIR is shown to have been registered promptly and without any delay. Hence, there is no possibility of false implication of respondent no. 1 and/or false involvement of Tempo bearing registration no.DL1LG5256 at the instance of petitioners herein.
21. It is pertinent to note that the respondent no.1/driver of aforesaid tempo, was the other material witness to throw light by testifying as to how and under what circumstances, the accident had taken place. However, he has preferred not to enter into the witness box. Thus, an Sushila, Subhash Chand, Krishna, Ashok Shah and Hanuman Vs. Keertan & Ors. Page 16 of 45 MACP Nos. 4825/16, 4826/16, 5449/16, 5450/16 and 4910/16, FIR No. 669/12; PS.Narela adverse inference is liable to be drawn against him to the effect that the accident in question occurred due to rash and negligent driving of truck bearing no. DL1LG5256 by him.
22. Not only this, the respondent no. 1 namely Sh.
Keertan(accused in State case) has been charge sheeted for the offences punishable U/s 279/337/338/304A IPC by the investigating agency after arriving at the conclusion on the basis of investigation carried out by it that the accident in question had occurred due to rash and negligent driving of offending vehicle bearing no. DL1LG5256 by him. Same would also point out towards rash and negligent driving of tempo no. DL1LG5256 by respondent no. 1. Though insurance company has argued that the accident took place due to contributory negligence of drivers of both the vehicles, but the records of criminal including the site plan shows that the TSR was going in its lane and it was the tempo who had come in the lane of TSR and hit the TSR from front side. Mere the fact being head on collision is not sufficient enough to prove negligence on the part of TSR driver unless the same is proved by cogent evidence. There is nothing on record to corroborate the plea taken by insurance commpany regarding composite negligence of drivers of both the vehicles. Hence the plea with regard to composite negligence of the drivers of both the vehicles taken by insurance company is not tenable.
23. Copy of MLCs (which are part of DAR) of injured namely Sushila, Subhash Chand, Krishna, Ashok Shah and Hanuman Vs. Keertan & Ors. Page 17 of 45 MACP Nos. 4825/16, 4826/16, 5449/16, 5450/16 and 4910/16, FIR No. 669/12; PS.Narela Subhash Chand and Krishna would show that they had been removed to SRHC Hospital, Delhi with alleged history of RTA on 12.12.2012. Copy of PM Report of deceased Moti Chand and Sh. Jai Prakash(which is part of DAR) shows that the said deceased persons have expired due to the accidental injuries which is subject matter of the present accident. The injuries as mentioned in the relevant column of external injuries of the said report, are also consistent with the injuries which are sustained in road traffic accident. Again, there is no challenge to the aforesaid documents from the side of respondents including insurance company.
24. In view of the aforesaid discussion and the evidence which has come on record, it is held that the petitioners have been able to prove on the basis of pre ponderence of probabilities that Sh. Jai Prakash and Moti Chand had sustained fatal injuries, whereas petitioner Subhash Chand and Krishna had sustained injuries in the road accident which took place on 12.12.2012 at about 12.00 midnight near Holambi More, Near Tyagi Farm House, Alipur Narela Road, Narela, Delhi, due to rash and negligent driving of the tempo bearing registration no.DL1LG5256 its driver/respondent no.1 Sh. Keertan. Thus, this issue is decided in favour of petitioners and against the respondents in all the claim petitions.
ISSUE NO.2
25. Section 168 of the Act enjoins the Claims Tribunal to hold an inquiry into the claim to make an award determining the amount of Sushila, Subhash Chand, Krishna, Ashok Shah and Hanuman Vs. Keertan & Ors. Page 18 of 45 MACP Nos. 4825/16, 4826/16, 5449/16, 5450/16 and 4910/16, FIR No. 669/12; PS.Narela compensation which appears to it to be just and reasonable. It has to be borne in mind that the compensation is not expected to be a windfall or a bonanza nor it should be niggardly.
Compensation in MACP No.4825/16 (Deceased Moti Chand) LOSS OF DEPENDENCY
26. The petitioners are the son and daughter of deceased. During the course of trial the widow of deceased Smt.Sushila has expired. Sh. Bhuttan, petitioner no.4 son of deceased appeared in witness box as PW3. He deposed that at the time of accident his father was aged about 65 years and was doing private service and was earning a sum of Rs.12,000/ per month. He further deposed that the deceased used to contribute his entire amount towards household expenses.
27. It is argued on behalf of insurance company that all the petitioners are major and married and were not dependent upon the earnings of deceased. That there is no loss of dependency and hence the petitioners are not entitled to compensation.
28. Here it be noted that the petitioner no.1 Smt. Sushila, widow of deceased has expired during the course of trial. It is not in dispute that the other petitioners are major and married. Hon'ble Delhi High Court in IFFCO Tokio General Insurance Company Ltd. Vs. Anshu Munjal & ors., MAC App. No. 277/16 has held that the dependency at the time of death of Sushila, Subhash Chand, Krishna, Ashok Shah and Hanuman Vs. Keertan & Ors. Page 19 of 45 MACP Nos. 4825/16, 4826/16, 5449/16, 5450/16 and 4910/16, FIR No. 669/12; PS.Narela deceased is to be taken into consideration. The petitioners no.2 to 6 are not considered as dependent upon the deceased as they are major and married. Hence, only widow Smt.Sushila(since deceased) only is considered as dependent upon the deceased at the time of accident.
29. PW3 Sh. Bhuttan, petitioner no.4 in his affidavit Ex.PW3/A has stated that at the time of accident his father was doing private job and was earning a sum of Rs.12,000/. However, in the crossexamination he stated that he can not produce any document to show that his deceased father was doing any private job or that he was earning a sum of Rs.12,000/ per month. The petitioners have also not produced any document to prove the educational qualifications of the deceased. In view of aforesaid, the income of the deceased is taken as minimum wages of unskilled worker under Minimum Wages Act during the period in question for computation of loss of dependency. The minimum wages of unskilled worker were Rs.7254/ per month as on the date of accident which is 12.12.2012.
30. As per the case of petitioner, deceased Sh.Moti Chand was aged about 65 years at the time of accident. The petitioners have not filed any documentary proof in order to prove the age of deceased. However, alongwith DAR, copy of ration card of deceased has been filed which shows the year of birth of the deceased as 1940. hence, the deceased was aged around 72 years at the time of accident. Thus, the multiplier of 5 would be applicable in view of recent pronouncement made by Constitutional Bench Sushila, Subhash Chand, Krishna, Ashok Shah and Hanuman Vs. Keertan & Ors. Page 20 of 45 MACP Nos. 4825/16, 4826/16, 5449/16, 5450/16 and 4910/16, FIR No. 669/12; PS.Narela of Apex Court in the case titled as "National Insurance Company Ltd. Vs. Pranay Sethi & Ors." passed in SLP(Civil) No. 25590/14 decided on 31.10.17.
31. Considering the fact that deceased was aged about 72 years at the time of accident, no amount is added towards future prospects, in view of recent pronouncement made by Constitutional Bench of Apex Court in the case titled as "National Insurance Company Ltd. Vs. Pranay Sethi & Ors." mentioned supra, as well as in view of recent decision of Hon'ble Delhi High Court in appeal bearing MAC APP No. 798/2011 titled as "Bajaj Allianz General Insurance Company Ltd. Vs. Pooja & Ors", decided on 02.11.17.
32. In view of aforesaid discussions it is held that the deceased was survived by only one dependent. Hence, 1/3rd is liable to be deducted towards personal and living expenses of deceased, as held in the case of Pranay Sethi mentioned supra. Thus, the total of loss of dependency would come out to Rs. 2,90,160/(Rs.7254X 2/3 X 12 X 5). Hence, a sum of Rs. 2,90,200/(rounded off) is awarded under this head in favour of the petitioners.
LOSS OF LOVE & AFFECTION
33. After the celebrated judgment of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors.", mentioned supra, Hon'ble Delhi Sushila, Subhash Chand, Krishna, Ashok Shah and Hanuman Vs. Keertan & Ors. Page 21 of 45 MACP Nos. 4825/16, 4826/16, 5449/16, 5450/16 and 4910/16, FIR No. 669/12; PS.Narela High Court in appeal titled as "Bajaj Allianz General Insurance Company Ltd. Vs. Pooja & Ors", mentioned supra, has been pleased to observe in para 18 of the judgment that the Constitution Bench decision in Pranay Sethi (supra) does not recognize any other nonpecuniary head of damages. Hence, no amount of compensation is being awarded under this head.
LOSS OF CONSORTIUM
34. In view of the judgment of Hon'ble Supreme Court in case titled as New India Assurance Company Limited versus Somwati & Ors., Civil Appeal no. 3093 of 2020, dated 07.09.2020 I am of the considered opinion that all the petitioners i.e. widow(since deceased), three daughters and two sons of deceased are entitled for payment of Rs. 40,000/ each towards loss of consortium. Consequently, a sum of Rs.2,40,000/ is awarded to the petitioners under this head.
LOSS OF ESTATE & FUNERAL EXPENSES
35. In view of the facts and circumstances of the present case and in view of decision of Hon'ble Apex Court in the case of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors." mentioned supra, a sum of Rs. 15,000/ each is awarded in favour of petitioners on account of loss of estate and funeral expenses.
The total compensation is assessed as under:
1. Loss of dependency Rs. 2,90,200/
2. Loss of consortium Rs. 2,40,000/ Sushila, Subhash Chand, Krishna, Ashok Shah and Hanuman Vs. Keertan & Ors. Page 22 of 45 MACP Nos. 4825/16, 4826/16, 5449/16, 5450/16 and 4910/16, FIR No. 669/12; PS.Narela
3. Loss of Estate & Funeral Rs. 30,000/ Expenses Total Rs. 5,60,200/ Compensation in MACP No. 4826/17(Injured Subhash Chand) MEDICAL EXPENSES
36. PW1 i.e. injured Sh.Subhash Chand has deposed in his evidence by way of affidavit (Ex. PW1/A) that he had sustained grievous injuries in the accident in question. He further deposed that immediately after the accident he was removed to SRHC Hospital and thereafter he was shifted to Saroj Hospital where he remained admitted from 12.12.2012 and was discharged on 22.12.2012. he further deposed that he had suffered fracture in left hand, fracture in right leg, head and face injuries and other multiple injuries all over his body. He also deposed that he was again admitted in Saroj hospital on 09.03.2017 for removal of plates. He deposed that he spent a sum of Rs.15,00,000/ on his medical treatment. The ocular testimony of the petitioner regarding his medical treatment and expenditure incurred on treatment is duly supported with his medical treatment record and medical bills Ex. PW1/3(colly).The petitioner is also stated to have suffered 66% permanent physical impairment in relation to his left upper limb and right lower limb which is evident from the disability certificate dated 10.04.2015 issued by SRHC Hospital.
37. In order to prove the expenditure on medical treatment the Sushila, Subhash Chand, Krishna, Ashok Shah and Hanuman Vs. Keertan & Ors. Page 23 of 45 MACP Nos. 4825/16, 4826/16, 5449/16, 5450/16 and 4910/16, FIR No. 669/12; PS.Narela petitioner has also examined PW5 Ms. Sapna, Medical Record Technician from Saroj Hospital who deposed that the petitioner Sh. Subhash was admitted in their hospital on 12.12.2012 and he was discharged on 22.12.2012. She proved on record the final bill dated 27.12.2012 Ex.PW1/3(colly) and stated that the said bill was issued by their hospital.
38. The petitioner has filed on record the medical bills amounting to Rs.2,91,081/. It is quite evident that the respondents have not disputed the authenticity and genuineness of the said medical bills during the course of inquiry. Respondents have also not led any evidence in rebuttal so as to create any doubt on the geuineness of said bills. Accordingly, a sum of Rs.2,91,081/ is awarded to the petitioner under this head.
LOSS OF INCOME
39. Injured namely Subhash(PW1) has categorically deposed in his evidence by way of affidavit(Ex PW1/A) that at the time of accident he was working as labourer. In the crossexamination on behalf of respondent no.5 he stated that he was getting monthly salary of Rs.12,000/ at the time of accident. However, the petitioner has not filed any documentary proof of his employment and income. The petitioner has also not filed documentary proof of his educational qualifications. Hence, the income of the injured is taken as minimum wages of an unskilled worker. As per Minimum Wages Act, minimum wages of an unskilled worker were Rs. 7254/ per month at the time of accident.
Sushila, Subhash Chand, Krishna, Ashok Shah and Hanuman Vs. Keertan & Ors. Page 24 of 45MACP Nos. 4825/16, 4826/16, 5449/16, 5450/16 and 4910/16, FIR No. 669/12; PS.Narela
40. Petitioner has failed to file any document to show that he was advised bed rest for any specific period. Nevertheless, it can not be overlooked that the petitioner had sustained dangerous injuries and consequent disability as discussed above. Considering the nature of injuries sustained by the petitioner, it is presumed that he would not have been able to work at all atleast for a period of six months or so. Thus, a sum of Rs. 43,524/(rounded off) (Rs.7254x 6) is awarded in favour of petitioner under this head and against the respondents.
PAIN AND SUFFERING
41. Hon'ble Delhi High Court in the matter titled as " Vinod Kumar Bitoo Vs. Roshni & Ors." passed in appeal bearing no. MAC.APP 518/2010 decided on 05.07.12, has held as under: " It is difficult to measure the pain and suffering in terms of money which is suffered by a victim on account of serious injuries caused to him in a motor vehicle accident. Since the compensation is required to be paid for pain and suffering an attempt must be made to award compensation which may have some objective relation with the pain and suffering underwent by the victim. For this purpose, the Claims Tribunal and the Courts normally consider the nature of injury; the part of the body where the injuries were sustained, surgeries, if any, underwent by the victim, confinement in the hospital and the duration of treatment".
42. Injured himself as PW1 has deposed in his evidence by way of affidavit(Ex PW1/A) that he had sustained grievous injuries in the accident. As already noted above, his MLC as available on file, would corroborate Sushila, Subhash Chand, Krishna, Ashok Shah and Hanuman Vs. Keertan & Ors. Page 25 of 45 MACP Nos. 4825/16, 4826/16, 5449/16, 5450/16 and 4910/16, FIR No. 669/12; PS.Narela said part of his testimony, which has gone unchallenged and unrebutted from the side of respondents. The petitioner is also stated to have suffered 66% permanent disability as discussed above. Thus, injured would have undergone great physical sufferings and mental shock on account of the accident in question. Keeping in view the medical treatment record of petitioner available on record, I hereby award a sum of Rs.60,000/ towards pain and sufferings to the petitioner.
LOSS OF GENERAL AMENITIES & ENJOYMENT OF LIFE
43. As already mentioned above, there is sufficient evidence on record to establish that the petitioner had suffered grievous injuries in the accident. The petitioner is also stated to have suffered 66% permanent disability as discussed above. Thus, he would not have been able to enjoy general amenities of life after the accident in question for considerable period and his quality of life has been definitely affected. In view of the nature of injuries suffered by him, I award a notional sum of Rs. 40,000/ towards loss of general amenities and enjoyment of life to the petitioner.
CONVEYANCE, SPECIAL DIET & ATTENDANT CHARGES
44. The petitioner has failed to lead any cogent evidence on record in respect of amount incurred by him on conveyance, special diet and attendant charges. At the same time, it cannot be overlooked that the petitioner has suffered permanent physical impairment to the extent of 66% as discussed above. Thus, he would have taken special rich protein diet for Sushila, Subhash Chand, Krishna, Ashok Shah and Hanuman Vs. Keertan & Ors. Page 26 of 45 MACP Nos. 4825/16, 4826/16, 5449/16, 5450/16 and 4910/16, FIR No. 669/12; PS.Narela his speedy recovery and would have also incurred considerable amount towards conveyance charges while commuting to the concerned hospital as OPD patient for his regular check up & follow up during the period of his medical treatment. He would have been definitely helped by some person either outsider or from his family, to perform his daily activities as also while visiting the hospital during the course of his medical treatment. In these facts and circumstances, I hereby award a sum of Rs.10,000/ each(Total Rs.30,000/) for conveyance, special diet and attendant charges to the petitioner.
LOSS OF FUTURE INCOME
45. As already stated above, the petitioner is shown to have sustained 66% permanent physical impairment in relation to his left upper limb and right lower limb. Same is quite evident from Disability Certificate dated 10.04.2015 of Medical Board of SRHC Hospital, Delhi.
46. In order to prove the extent of disability the petitioner has also examined Dr. Ashutosh Gupta, Specialist Orthopedic, SRHC Hospital as PW6. He deposed that he alongwith other Members examined injured Sh. Subhash Chand and issued disability certificate dated 10.04.2015. He proved the disability certificate Ex. PW1/4. He deposed that the injured was found to have suffered 66% permanent disability in relation to his left upper limb and right lower limb and the same is not likely to improve. He deposed that the injured was a case of compound fracture of both bones forearm left Sushila, Subhash Chand, Krishna, Ashok Shah and Hanuman Vs. Keertan & Ors. Page 27 of 45 MACP Nos. 4825/16, 4826/16, 5449/16, 5450/16 and 4910/16, FIR No. 669/12; PS.Narela side with deformity left wrist with operated compound fracture both bones right leg. He also deposed that due to the disability suffered the injured would have mild difficulty in writing, in eating, in combing, in putting on clothes, in drinking water, in buttoning etc and he would also have moderate difficulty in lifting overhead objects.
47. The disability certificated dated 10.04.2015 issued by the Medical Board of SRHC Hospital shows that the petitioner has suffered 66% permanent physical impairment in relation to his left upper limb and right lower limb. The petitioner is stated to be labourer. Keeping in view the deposition of PW6 Dr. Ashutosh Gupta and extent of disability, his functional disability is taken as 35% with regard to whole body.
48. The copy of Aadhar card of injured shows his date of birth to be 04.04.1992. No other document with regard to age of injured has been filed. The date of accident is 12.12.2012. In view of said document, his age was about 20 years as on the date of accident. Hence, the appropriate multiplier would be 18 in view of recent pronouncement made by Constitutional Bench of Apex Court in the case titled as "National Insurance Company Ltd. Vs. Pranay Sethi & Ors.", passed in SLP(Civil) No. 25590/14 decided on 31.10.17. The monthly notional income of petitioner has been taken as Rs.7254/ per month as discussed above. Thus, the loss of monthly future income would be Rs.2538.9/ (rounded of Rs.2540/)(Rs.7254x35/100 ). The total loss of future income Sushila, Subhash Chand, Krishna, Ashok Shah and Hanuman Vs. Keertan & Ors. Page 28 of 45 MACP Nos. 4825/16, 4826/16, 5449/16, 5450/16 and 4910/16, FIR No. 669/12; PS.Narela would be Rs.7,68,096/(rounded off Rs.7,68,100) (Rs.2540x140/100x 12 x18). (Reliance placed on Jagdish Vs. Mohan & Ors. (2018) 4 SCC 571 and unreported decision of Hon'ble Delhi High Court in " The New India Assurance Co. Ltd. Vs. Deepak Arora & Ors.", MAC APP No. 320/2013 decided on 28.09.18). Thus, a sum of Rs.7,68,100/ is awarded in favour of petitioner under this head.
Thus, the total compensation is assessed as under:
1. Medical Expenses Rs. 2,91,081/
2. Loss of income Rs. 43,524/
3. Pain and suffering Rs. 60,000/
4. Loss of general amenities and Rs. 40,000/ enjoyment of life
5. Conveyance, special diet and Rs. 30,000/ attendant charges
6. Loss of future income Rs. 7,68,100/ Total Rs. 12,32,705/ Rounded off as Rs. 12,32,700/ Compensation in MACP No. 5449/16(Injured Krishna) MEDICAL EXPENSES
49. PW4 i.e. injured Sh.Krishna has deposed in his evidence by way of affidavit (Ex. PW4/A) that he had sustained grievous injuries in the accident in question. He further deposed that immediately after the accident he was removed to SRHC Hospital and was medically examined there. He deposed that he spent a sum of Rs.50,000/ on his medical treatment. He relied upon his medical treatment record and medical bills Ex. PW4/5(colly).
Sushila, Subhash Chand, Krishna, Ashok Shah and Hanuman Vs. Keertan & Ors. Page 29 of 45MACP Nos. 4825/16, 4826/16, 5449/16, 5450/16 and 4910/16, FIR No. 669/12; PS.Narela The copy of MLC of the petitioner prepared at SRHC Hospital shows that he has suffered grievous injuries. As per certificate issued by SRHC Hospital the petitioner has suffered fracture mandible right side. The ocular testimony of the petitioner regarding his medical treatment and expenditure incurred on treatment is duly supported with his medical treatment record and medical bills .
50. The petitioner has not filed original medical bills on record. Photocopies of certain medical bills have been filed on record. In the absence of original medical bills, the possibility of reimbursement of the same by any other authority can not be ruled out. Hence, no amount is awarded under this head.
LOSS OF INCOME
51. Injured namely Krishna(PW4) has categorically deposed in his evidence by way of affidavit(Ex PW4/A) that at the time of accident he was working as labourer and was earning a sum of Rs.10,000/ per month . However, the petitioner has not filed any documentary proof of his employment and income. The petitioner has also not filed documentary proof of his educational qualifications. Hence, the income of the injured is taken as minimum wages of an unskilled worker. As per Minimum Wages Act, minimum wages of an unskilled worker were Rs. 7254/ per month at the time of accident.
Sushila, Subhash Chand, Krishna, Ashok Shah and Hanuman Vs. Keertan & Ors. Page 30 of 45MACP Nos. 4825/16, 4826/16, 5449/16, 5450/16 and 4910/16, FIR No. 669/12; PS.Narela
52. Petitioner has failed to file any document to show that he was advised bed rest for any specific period. Nevertheless, it can not be overlooked that the petitioner had sustained grievous injuries. Considering the nature of injuries sustained by the petitioner, it is presumed that he would not have been able to work at all atleast for a period of three months or so. Thus, a sum of Rs. 21,762/(Rs.7254x 3) is awarded in favour of petitioner under this head and against the respondents.
PAIN AND SUFFERING
53. Hon'ble Delhi High Court in the matter titled as " Vinod Kumar Bitoo Vs. Roshni & Ors." passed in appeal bearing no. MAC.APP 518/2010 decided on 05.07.12, has held as under: " It is difficult to measure the pain and suffering in terms of money which is suffered by a victim on account of serious injuries caused to him in a motor vehicle accident. Since the compensation is required to be paid for pain and suffering an attempt must be made to award compensation which may have some objective relation with the pain and suffering underwent by the victim. For this purpose, the Claims Tribunal and the Courts normally consider the nature of injury; the part of the body where the injuries were sustained, surgeries, if any, underwent by the victim, confinement in the hospital and the duration of treatment".
54. Injured himself as PW4 has deposed in his evidence by way of affidavit(Ex PW4/A) that he had sustained grievous injuries in the accident. As already noted above, his MLC as available on file, would corroborate said part of his testimony, which has gone unchallenged and unrebutted Sushila, Subhash Chand, Krishna, Ashok Shah and Hanuman Vs. Keertan & Ors. Page 31 of 45 MACP Nos. 4825/16, 4826/16, 5449/16, 5450/16 and 4910/16, FIR No. 669/12; PS.Narela from the side of respondents. Thus, injured would have undergone great physical sufferings and mental shock on account of the accident in question. Keeping in view the medical treatment record of petitioner available on record, I hereby award a sum of Rs.30,000/ towards pain and sufferings to the petitioner.
LOSS OF GENERAL AMENITIES & ENJOYMENT OF LIFE
55. As already mentioned above, there is sufficient evidence on record to establish that the petitioner had suffered grievous injuries in the accident. Thus, he would not have been able to enjoy general amenities of life after the accident in question for considerable period and his quality of life has been definitely affected. In view of the nature of injuries suffered by him, I award a notional sum of Rs.30,000/ towards loss of general amenities and enjoyment of life to the petitioner.
CONVEYANCE AND SPECIAL DIET & ATTENDANT CHARGES
56. The petitioner has failed to lead any cogent evidence on record in respect of amount incurred by him on conveyance, special diet and attendant charges. At the same time, it cannot be overlooked that the petitioner has suffered grievous injuries as discussed above. Thus, he would have taken special rich protein diet for his speedy recovery and would have also incurred considerable amount towards conveyance charges while commuting to the concerned hospital as OPD patient for his regular check up & follow up during the period of his medical treatment. He Sushila, Subhash Chand, Krishna, Ashok Shah and Hanuman Vs. Keertan & Ors. Page 32 of 45 MACP Nos. 4825/16, 4826/16, 5449/16, 5450/16 and 4910/16, FIR No. 669/12; PS.Narela would have been definitely helped by some person either outsider or from his family, to perform his daily activities as also while visiting the hospital during the course of his medical treatment. In these facts and circumstances, I hereby award a sum of Rs.10,000/ each(Total Rs.30,000/) for conveyance, special diet and attendant charges to the petitioner.
Thus, the total compensation is assessed as under:
1. Medical Expenses Rs. NIL
2. Loss of income Rs. 21,762/
3. Pain and suffering Rs. 30,000/
4. Loss of general amenities and Rs. 30,000/ enjoyment of life
5. Conveyance, special diet and Rs. 30,000/ attendant charges Total Rs. 1,11,762/ Rounded of Rs. 1,11,800/ Compensation in MACP No.5450/16 (Deceased Jai Prakash) LOSS OF DEPENDENCY
57. The claim petition was filed by petitioner no.1 Smt. Asha Devi/mother and petitioner no.2 Sh. Ashok Shah father of deceased. It is stated that the deceased was unmarried. During the course of trial the petitioner no.1/mother of deceased has expired and vide order dated 23.02.2022, her Lrs were brought on record. The petitioner Sh. Ashok Shah father of deceased appeared in witness box as PW1 and he deposed that at the time of accident his son was aged about 21 years and he was Sushila, Subhash Chand, Krishna, Ashok Shah and Hanuman Vs. Keertan & Ors. Page 33 of 45 MACP Nos. 4825/16, 4826/16, 5449/16, 5450/16 and 4910/16, FIR No. 669/12; PS.Narela working as labourer and was earning a sum of Rs.10,000/ per month and he was also a student of B. A. 1 st year. He further deposed that the deceased used to contribute his entire amount towards household expenses.
58. It is argued on behalf of insurance company that the mother of deceased has expired and father can not be stated to be financially dependent upon the deceased. That there is no loss of dependency and hence the petitioners are not entitled to compensation.
59. Here it be noted that the petitioner no.1 Smt.Asha Devi mother of deceased has expired during the course of trial. Hon'ble Delhi High Court in IFFCO Tokio General Insurance Company Ltd. Vs. Anshu Munjal & ors., MAC App. No. 277/16 has held that the dependency at the time of death of deceased is to be taken into consideration. Hence, in view of case law(supra) the petitioners are entitled to loss of dependency at the time of death of deceased.
60. The petitioner Sh. Ashok Shah father of deceased appeared in witness box as PW1 and he deposed that at the time of accident his son was aged about 21 years and he was working as labourer and was earning a sum of Rs.10,000/ per month and he was also a student of B. A. 1st year. As per educational qualifications documents the deceased Sh. Jai Prakash had taken admission in BA. Hons. in Veer Kunwar Singh University in the Sushila, Subhash Chand, Krishna, Ashok Shah and Hanuman Vs. Keertan & Ors. Page 34 of 45 MACP Nos. 4825/16, 4826/16, 5449/16, 5450/16 and 4910/16, FIR No. 669/12; PS.Narela year 2011. In view of aforesaid, the income of the deceased is taken as minimum wages of a matriculate worker under Minimum Wages Act during the period in question for computation of loss of dependency. The minimum wages of matriculate were Rs.8814/ per month as on the date of accident which is 12.12.2012.
61. As per the case of petitioners, deceased Sh. Jai Prakash was aged about 21 years at the time of accident. The educational documents of the deceased shows his date of birth as 25.02.1992. Hence, the deceased was aged about 20 years and 10 months at the time of accident. Thus, the multiplier of 18 would be applicable in view of recent pronouncement made by Constitutional Bench of Apex Court in the case titled as "National Insurance Company Ltd. Vs. Pranay Sethi & Ors." passed in SLP(Civil) No. 25590/14 decided on 31.10.17.
62. Considering the fact that deceased was below 40 years of age at the time of accident and was doing private job, 40% is added towards future prospects, in view of recent pronouncement made by Constitutional Bench of Apex Court in the case titled as "National Insurance Company Ltd. Vs. Pranay Sethi & Ors." mentioned supra, as well as in view of recent decision of Hon'ble Delhi High Court in appeal bearing MAC APP No. 798/2011 titled as "Bajaj Allianz General Insurance Company Ltd. Vs. Pooja & Ors", decided on 02.11.17.
Sushila, Subhash Chand, Krishna, Ashok Shah and Hanuman Vs. Keertan & Ors. Page 35 of 45MACP Nos. 4825/16, 4826/16, 5449/16, 5450/16 and 4910/16, FIR No. 669/12; PS.Narela
63. Since, the deceased was unmarried 50% is liable to be deducted towards personal and living expenses of deceased. Thus, the total of loss of dependency would come out to Rs. 13,32,676/(rounded of Rs.13,32,700)(Rs.8814X 1/2x140/100 X 12 X18). Hence, a sum of Rs.13,32,700/ is awarded under this head in favour of the petitioners.
LOSS OF LOVE & AFFECTION
64. After the celebrated judgment of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors.", mentioned supra, Hon'ble Delhi High Court in appeal titled as "Bajaj Allianz General Insurance Company Ltd. Vs. Pooja & Ors", mentioned supra, has been pleased to observe in para 18 of the judgment that the Constitution Bench decision in Pranay Sethi (supra) does not recognize any other nonpecuniary head of damages. Hence, no amount of compensation is being awarded under this head.
LOSS OF CONSORTIUM
65. In view of the judgment of Hon'ble Supreme Court in case titled as New India Assurance Company Limited versus Somwati & Ors., Civil Appeal no. 3093 of 2020, dated 07.09.2020 I am of the considered opinion that all the petitioners i.e. Smt. Asha Devi (since deceased) and petitioner no.2 Sh. Ashok Shah/father of deceased are entitled for payment of Rs. 40,000/ each towards loss of consortium. Consequently, a sum of Rs.80,000/ is awarded to the petitioners under this head.
Sushila, Subhash Chand, Krishna, Ashok Shah and Hanuman Vs. Keertan & Ors. Page 36 of 45MACP Nos. 4825/16, 4826/16, 5449/16, 5450/16 and 4910/16, FIR No. 669/12; PS.Narela LOSS OF ESTATE & FUNERAL EXPENSES
66. In view of the facts and circumstances of the present case and in view of decision of Hon'ble Apex Court in the case of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors." mentioned supra, a sum of Rs. 15,000/ each is awarded in favour of petitioners on account of loss of estate and funeral expenses.
The total compensation is assessed as under:
1. Loss of dependency Rs. 13,32,700/
2. Loss of consortium Rs. 80,000/
3. Loss of Estate & Funeral Rs. 30,000/ Expenses Total Rs. 14,42,700/
67. Now, the question which arises for determination is as to which of the respondents is liable to pay the compensation amount. In view of findings on issue no.1(supra), it has been held that there was negligence on the part of tempo bearing no. DL1LG5256 in causing the accident and there was no negligence on the part of TSR driver. Hence, respondents no.4 Sh. Hanuman Prasad/driver of TSR and respondent no.5 Sh. Jeet Lal Yadav/owner of TSR are discharged.
68. It is argued on behalf of insurance company that the offending vehicle was being driven without permit at the relevant time of accident and Sushila, Subhash Chand, Krishna, Ashok Shah and Hanuman Vs. Keertan & Ors. Page 37 of 45 MACP Nos. 4825/16, 4826/16, 5449/16, 5450/16 and 4910/16, FIR No. 669/12; PS.Narela hence, the owner of the offending vehicle has committed breach of terms and conditions of insurance policy, the insurance company is not liable to pay compensation. In order to prove the validity of permit respondent no.3 has examined Sh. Prem Singh, Dealing Assistant from STA, GNCT, Delhi who has produced the permit details in respect of offending vehicle bearing no. DL1LG5256 as Ex. R3W2/1 and deposed that the said vehicle was not having valid permit on 12.12.2012. Respondent no.3 has also examined Mrs. Shobha Khatak, Administrative Officer of the insurance company as R3W4. She adduced evidence by way of affidavit Ex. R3W4/A. In her affidavit Ex. R3W4/A she deposed that the offending vehicle was being driven without valid permit and the licence of respondent no.1 issued from Farrukhabad Transport Authority was also not valid on the date of accident. Though the insurance company has taken defence that the licence of respondent no.1 issued from Farrukhabad Transport authority was not valid as the licence fee was not deposited but Sh. Rajendra Kumar R3W5, Head Assistant from Farrukhabad Transport Authority in reply to court question stated that the Licence no. 24454/FBD/08 was issued from the office of RTO, Farrukhabad, UP in the name of respondent no.1 and said licence has not been cancelled. In the crossexamination on behalf of petitioners he also deposed that the licence no. 24454/FBD/08 in the name of Keertan was endorsed for HTV only w.e.f. 02.04.2011 to 01.04.2014. Hence, in view of aforesaid deposition of R3W5 Sh. Rajender Kumar it is held that the licence of respondent no.1 Sh. Keertan was valid on the date of accident i.e. 12.12.2012.
Sushila, Subhash Chand, Krishna, Ashok Shah and Hanuman Vs. Keertan & Ors. Page 38 of 45MACP Nos. 4825/16, 4826/16, 5449/16, 5450/16 and 4910/16, FIR No. 669/12; PS.Narela
69. Now coming to the question of validity of permit, it be noted that as per record produced by R3W2 Sh. Prem Singh the permit of the offending vehicle bearing no. DL1LG5256 was not valid on the date of accident and same was valid from 01.02.2007 to 31.01.2012 and thereafter renewed from 19.12.2012 to 31.01.2017. As per RC particulars of the offending vehicle, the offending vehicle bearing no. DL1LG5256 was a light goods vehicle.
70. At this juncture, it would be relevant to refer to the provision contained in Section 66 (1) of M.V Act which read as under: Necessity for Permits:(1) No owner of a motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place whether or not such vehicle is actually carrying any passengers or goods save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or any prescribed authority authorising him the use of the vehicle in that place in the manner in which the vehicle is being used.
71. As already discussed above, as per record produced by R3W2 Sh. Prem Singh the permit of the offending vehicle bearing no. DL1LG 5256 was not valid on the date of accident and same was valid from 01.02.2007 to 31.01.2012 and thereafter renewed from 19.12.2012 to 31.01.2017. As per RC particulars of the offending vehicle, the offending vehicle bearing no. DL1LG5256 was a light goods vehicle. In view of aforesaid, it is held that the offending vehicle bearing no. DL1LG5256 Sushila, Subhash Chand, Krishna, Ashok Shah and Hanuman Vs. Keertan & Ors. Page 39 of 45 MACP Nos. 4825/16, 4826/16, 5449/16, 5450/16 and 4910/16, FIR No. 669/12; PS.Narela was being driven without valid permit on the date of accident. Hence, there was willful and conscious breach of terms and conditions of insurance policy on the part of respondent no.2/registered owner. Respondent no.1/driver is principal tort feasor. Respondent no.2/owner is vicariously liable. Since, the offending vehicle was insured with respondent no.3 at the time of accident, respondent no.3/insurance company is directed to make the payment of award amount to the petitioners with right to recover the same from respondent no.2/registered owner Sh. Ranbir Singh. Issue no. 2 is decided accordingly.
ISSUE NO. 3 RELIEF
72. In view of my findings on issues no. 1 & 2, following order is passed after relying upon judgment "Oriental Insurance Company Ltd. Vs. Sangeeta Devi & Ors bearing MAC. APP. 165/2011 decided on 22.02.2016.
a) A sum of Rs.5,60,200/(Rupees Five Lacs Sixty Thousand Two Hundred only) alongwith interest @ 9% per annum from the filing of petition i.e. 16.04.2013 till realization in MAC Petition No. 4825/16 (including interim award amount if any),
b) A sum of Rs.12,32,700/(Rupees Twelve Lacs Thirty Two Thousand Seven Hundred only) alongwith interest @ 9% per annum from the filing of petition i.e. 16.04.2013 till realization in MAC Petition No. 4826/16 (including interim award amount if any).
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c) A sum of Rs.1,11,800/(Rupees One Lakh Eleven Thousand Eight Hundred only) alongwith interest @ 9% per annum from the filing of petition i.e. 04.04.2014 till realization in MAC Petition No. 5449/16 (including interim award amount if any).
d) A sum of Rs.14,42,700/(Rupees Fourteen lacs Forty Two Thousand Seven Hundred only) alongwith interest @ 9% per annum from the filing of petition i.e. 04.04.2014 till realization in MAC Petition No. 5450/16 (including interim award amount if any), Issue no. 3 is decided accordingly.
APPORTIONMENT IN MACP NO. 4825/16
73. Having regard to the facts and circumstances of the case, it is ordered that all the petitioners shall have equal share amount alongwith proportionate interest in the award. Entire share amount of the each petitioner alongwith proportionate interest be released to the petitioners through their respective saving bank account.
APPORTIONMENT IN MACP NO. 4826/16
74. Statement of injured under clause 29 MCTAP was recorded on 03.12.2021. Out of the award amount, a sum of Rs.4,00,000/ (Rupees Four Lacs, since medical bills amounting to Rs.3,00,000/ have Sushila, Subhash Chand, Krishna, Ashok Shah and Hanuman Vs. Keertan & Ors. Page 41 of 45 MACP Nos. 4825/16, 4826/16, 5449/16, 5450/16 and 4910/16, FIR No. 669/12; PS.Narela been proved) shall be immediately released to the petitioner through his saving bank account no. 51892122005117 with Oriental Bank of Commerce, IFSC No. ORBC0105189 and remaining amount alongwith interest amount are directed to be kept in the form of FDRs in the multiples of Rs. 10,000/ each for one month, two months, three months and so on and so forth having cumulative interest.
APPORTIONMENT IN MACP NO. 5449/16
75. Statement of injured under clause 29 MCTAP was recorded on 29.10.2021. Out of the award amount, a sum of Rs. 50,000/(Rupees Fifty Thousand Only) shall be immediately released to the petitioner through his saving bank account no.51892191027812 with Oriental Bank of Commerce, IFSC No. ORBC0105189 and remaining amount alongwith interest amount are directed to be kept in the form of FDRs in the multiples of Rs. 10,000/ each for one month, two months, three months and so on and so forth having cumulative interest.
APPORTIONMENT IN MACP NO. 5450/16
76. The petitioner no.2 Sh. Ashok Shah is the father of deceased and other petitioners i.e. Sh. Jai Shankar, Smt. Sita Kumari and Sh. Jai Ram Shah have been substituted as Lrs of deceased Smt. Asha Devi. Having regard to the facts and circumstances of the case, it is ordered that the petitioner Sh. Ashok Shah shall have share amount of Rs.8,00,000/ alongwith proportionate interest and remaining amount of Rs.6,42,700/ be Sushila, Subhash Chand, Krishna, Ashok Shah and Hanuman Vs. Keertan & Ors. Page 42 of 45 MACP Nos. 4825/16, 4826/16, 5449/16, 5450/16 and 4910/16, FIR No. 669/12; PS.Narela equally disbursed amongst the petitioners Sh. Jai Ram Shah, Sh. Jai Shankar Kumar and Smt. Sita Kumari, alongwith proportionate interest. Since the statements of petitioners Sh. Jai Ram Shah, Sh. Jai Shankar Kumar and Smt. Sita Kumari, under Clause 29 MCTAP not yet recorded, their entire share amount be kept in FDR and shall be disbursed after recording of their statement.
77. Statement of claimant Sh. Ashok Shah under clause 29 MCTAP was recorded on 29.10.2021. Out of his share amount, a sum of Rs. 2,00,000/(Rupees Two Only) shall be immediately released to him through his saving bank account no.30522299264 with State Bank of India and remaining amount alongwith interest amount are directed to be kept in the form of FDRs in the multiples of Rs. 10,000/ each for one month, two months, three months and so on and so forth having cumulative interest.
78. The FDRs to be prepared as per the aforesaid directions, shall be subject to the following directions:
(i) Original fixed deposit receipts be retained by the bank in safe custody. However, a passbook of the FDRs alongwith photocopies of the FDRs be given to claimants/petitioners. At the time of maturity, the fixed deposit amount shall be automatically credited in the savings bank accounts of the Claimants/petitioners.
(ii) No cheque book/Debit Card be issued to the claimants/petitioners without permission of the Court.
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(iii) No loan, advance or withdrawal be allowed on the fixed deposit(s) without permission of the Court.
(iv) The Bank shall not permit any joint name(s) to be added in the savings bank accounts or fixed deposit accounts of the victim.
(v) Half yearly statement of account be filed by the Bank before the Tribunal.
79. Respondent no. 3/Oriental Insurance Company, being insurer of offending vehicle, is directed to deposit the award amount with SBI, Rohini Courts branch within 30 days as per above order, failing which insurance company shall be liable to pay interest @ 12% p.a for the period of delay. Concerned Manager, SBI, Rohini Court Branch is directed to transfer the respective amounts in their aforesaid saving bank accounts mentioned supra, on completing necessary formalities as per rules. He be further directed to keep the said amount in fixed deposit in its own name till the claimants approach the bank for disbursement so that the award amount starts earning interest from the date of clearance of the cheques. Copy of this award be given dasti to claimants. Copy of this award be also given dasti to counsel for insurance company for compliance. Copy of this award alongwith one photograph each, specimen signatures, copy of bank passbooks and copy of residence proof of both the petitioners, be sent to Nodal Officer of SBI, Rohini Court, Branch, Delhi for Sushila, Subhash Chand, Krishna, Ashok Shah and Hanuman Vs. Keertan & Ors. Page 44 of 45 MACP Nos. 4825/16, 4826/16, 5449/16, 5450/16 and 4910/16, FIR No. 669/12; PS.Narela information and necessary compliance. Form XV, XVI & XVII in terms of MCTAP are annexed herewith as AnnexureA. Copy of order be also sent to concerned M.M and DLSA as per clause 31 and 32 of MCTAP. Announced in the open Court on 28.02.2022 (DEVENDER KUMAR JANGALA) Judge MACT2 (North) Rohini Courts, Delhi Certified that above award contains 45 pages and each page is signed by me.
(DEVENDER KUMAR JANGALA) Judge MACT2 (North) Rohini Courts, Delhi Sushila, Subhash Chand, Krishna, Ashok Shah and Hanuman Vs. Keertan & Ors. Page 45 of 45