Delhi District Court
Smt. Shweta Anand vs Sh. Anil Vishwakarma on 22 November, 2019
IN THE COURT OF SH. RAJ KUMAR
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNAL:
(WEST-01): DELHI
MACT Case No. 534/2017
1. Smt. Shweta Anand
W/o Late Sh. Tarun Anand
2. Dakshta Anand
D/o Late Sh. Tarun Anand
3. Master Raman Anand
S/o Late Sh. Tarun Anand
4. Smt. Kiran Anand
W/o Sh. Rohini Kumar Anand
5. Sh. Rohini Kumar Anand
S/o Late Sh. C. L. Anand
All R/o 5/6, Second Floor,
Gali South Side, Indira Vikas Colony,
Dr. Mukherjee Nagar, Delhi
(The petitioners no. 2 & 3 are minor
and the petition on their behalf is
filed through their mother,
the petitioner no.1 being their next friend)
....... Petitioners
Vs.
1. Sh. Anil Vishwakarma
S/o Sh. Laxmi Narayan
R/o Village Pure Keshav Ray
Post Office Bahrauli, Post Station
Pipar Pur, Distt. Sultanpur, UP
2. M/s Vijay Bharat Transport Corpn. Pvt. Ltd.
Shop No. 216, Mihart Colony
Near FX Hundai Bata More
Faridabad
MACT Case No. 534/17 Page No. 1/24
3. M/s National Insurance Co. Ltd.
17-18, Indraprastha Bhawan
Azadpur, Delhi
........ Respondents
Date of Institution: : 29.07.2017
Date of reserving order/judgment : 24.10.2019
Date of pronouncement: : 22.11.2019
AWARD
FORM-V
COMPLIANCE OF THE PROVISIONS OF THE MODIFIED CLAIMS TRIBUNAL AGREED PROCEDURE
1. Date of the accident 15.04.2017
2. Date of intimation of the accident by the 17.04.2017 Investigation Officer to the Claims Tribunal.
3. Date of Intimation of the accident by the Investigating Officer to the Insurance Company.
4. Date of filing of Report under Section 173 18.07.2017 Cr. P.C. before the Metropolitan Magistrate.
5. Date of filing of Detailed Accident 29.07.2017 Information Report (DAR) by the Investigating Officer before Claims Tribunal.
6. Date of service of DAR on the Insurance 29.07.2017 Company.
7. Date of service of DAR on the claimant 29.07.2017
(s).
8. Whether DAR was complete in all Yes respects?
9. If not, whether deficiencies in the DAR No removed later on?
10. Whether the police has verified the Yes MACT Case No. 534/17 Page No. 2/24 documents filed with DAR?
11. Whether there was any delay or Accident in question took deficiency on the part of the Investigating place on 15.04.2017 and the Officer ? If so, whether any action/ DAR was filed on 29.07.2017 direction warranted?
12. Date of appointment of the Designated Not mentioned Officer by the Insurance Company
13. Name, address and contact number of Not mentioned the Designated Officer of the Insurance Company.
14. Whether the Designated Officer of the Yes Insurance Company submitted his report within 30 days of the DAR?
15. Whether the Insurance Company No admitted the liability? If so, whether the Designated Officer of the Insurance Company fairly computed the compensation in accordance with law.
16. Whether there was any delay or No deficiency on the part of the Designated Officer of the Insurance Company? If so, whether any action/direction warranted?
17. Date of response of the claimant (s) to Legal offer was not filed by the offer of the Insurance Company. the insurance company
18. Date of the award 22.11.2019
19. Whether the award was passed with the Yes consent of the parties?
20. Whether the claimant (s) were directed to Yes open savings bank account (s) near their place of residence?
21. Date of order by which claimant (s) were 23.02.2018 directed to open savings bank account
(s) near his place of residence and produce PAN Card and Adhaar 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.
MACT Case No. 534/17 Page No. 3/2422. Date on which the claimant(s) produced 23.08.2019 the passbook of their savings bank account near the place of their residence along with the endorsement, PAN Card and Adhaar Card?
23. Permanent Residential Address of the R/o 5/6, Second Floor, Gali Claimant(s). South Side, Indira Vikas Colony, Dr. Mukherjee Nagar, Delhi
24. Details of savings bank account(s) of the The petitioner no.1 is having claimant(s) and the address of the bank A/c no. 3077000107265574 with IFSC Code. of Punjab National Bank, Sant Nirankari Colony, Delhi IFSC Code: PUNB0307700 The petitioner no.2 is having A/c no. 3077000107265936 of Punjab National Bank, Sant Nirankari Colony, Delhi IFSC Code: PUNB0307700 The petitioner no.3 is having A/c no. 3077000107265608 of Punjab National Bank, Sant Nirankari Colony, Delhi IFSC Code: PUNB0307700 The petitioner no.4 is having A/c no. 3077000107265927 of Punjab National Bank, Sant Nirankari Colony, Delhi IFSC Code: PUNB0307700 The petitioner no.5 is having A/c no. 3077000107265644 of Punjab National Bank, Sant Nirankari Colony, Delhi IFSC Code: PUNB0307700
25. Whether the claimant(s) savings bank Yes account (s) in near his place of MACT Case No. 534/17 Page No. 4/24 residence?
26. Whether the claimant (s) were examined Yes at the time of passing of the award to ascertain his/their financial condition?
27. Account number, MICR number, IFSC ADJ/MACT/Parking Account Code, name and branch of the bank of of SBI Tis Hazari Courts, the Claims Tribunal in which the award Delhi as informed by the amount is to be deposited/transfered. Chief Manager, SBI Tis Hazari Courts, Delhi MICR:- 110002126, IFSC Code:- SBIN0000726
1. This judgment -cum- award shall decide the petition under Section 166 and 140 of Motor Vehicle Act 1988 as amended up to date (hereinafter referred to as the 'Act') filed by the petitioners for grant of compensation for the death of the deceased Sh. Tarun Anand in the road vehicular accident.
2. Brief facts of the case are that on 15.04.2017, the deceased was driving his motorcycle bearing No. DL-8SBV-0820 on Sat Guru Ram Singh Marg, Mayapuri, Delhi cautiously. It has been further stated that when the deceased reached in front of Green Lounge Banquet Hall, in the meanwhile, the offending vehicle bearing no. HR-55R-6738 (Truck) which was being driven by the respondent no.1 in a rash and negligent manner at the very high speed approached from behind and hit the deceased with a great force. It has been further stated that due to the forceful impact, the deceased fell down on the road and the offending vehicle ran over the deceased. It has been further stated that thereafter, the respondent tried to flee away from the spot of the accident but some passerby apprehended the respondent no.1 near Dharam Kanta. It has been further stated that thereafter, the deceased was taken to DDU Hospital where the concerned doctors declared the deceased brought dead. It has been further stated that the post mortem of the deceased was conducted in DDU hospital vide PM No. 529/2017.
3. As a result of the abovesaid accident, as per the case of the MACT Case No. 534/17 Page No. 5/24 petitioners, FIR No.96/17 dated 15.04.2017: P.S. Maya Puri u/s 279/304A IPC was registered against the respondent No.1.
4. It has been further stated that at the time of accident, the deceased was 43 years of age. It has been further stated that the deceased was a graduate and working with M/s Verve Healthcare Ltd. A/43, G.T. Karnal Road Indl. Area, Delhi-110033 and earning Rs.35,000/- per month.
5. It has been further stated that the deceased is survived by his wife, two minor children and old age parents. It has been further stated that the petitioner no.1 is the wife of the deceased, the petitioner No.2 is the daughter of the deceased, the petitioner no.3 is the minor son of the deceased, the petitioner no.4 is the mother of the deceased and the petitioner no. 5 is the father of the deceased.
6. In total, the petitioners have claimed a sum of Rs.75,00,000/- (Rupees Seventy Five Lakhs Only) on account of compensation.
7. It has been further stated that the respondent no.1 being the driver of the offending vehicle, the respondent No.2 being the owner of the offending vehicle and the respondent no.3 being the insurer of the offending vehicle are jointly liable to pay the compensation to the petitioner.
8. Reply/written has been jointly filed by the respondents no.1 & 2 stating therein that the accident in question did not take place with the alleged offending vehicle. It has been further stated that the respondents no.1 & 2 have been falsely implicated in the present matter. It has been further stated that the respondent no.1 was having a valid and effective driving license at the time of the alleged accident. It has been further stated that the alleged offending vehicle was duly insured with the respondent no.3 at the time of accident. It has been prayed that the present claim petition be dismissed.
9. Written statement has been filed by the insurance company wherein it has been admitted that the offending bearing No. HR-55R-6738 was duly insured with it vide policy no. 360801311610004223 valid for the period from MACT Case No. 534/17 Page No. 6/24 28.01.2017 to 27.01.2018 in the name of M/s Vijay Bharat Transport Corporation Pvt. Ltd. It has been further stated that the respondents no.1 & 2 were not having any valid permit or fitness certificate at the time of accident and the respondent no.2 i.e. owner of the offending vehicle has also been challaned u/s 66/192 and 56/192 of MV Act. It has been further stated that the DL of the deceased has not been filed on record to show that he was competent or authorized to ride the motorcycle at the time of accident. It has been further stated that there is a evidence of contributory negligence on the part of the deceased. It has been prayed that the present claim petition be dismissed.
10. After hearing the arguments and going through the pleadings of the parties, the following issues were framed by this Tribunal on 20.04.2018 :-
1. Whether the deceased Sh. Tarun Anand suffered fatal injuries in the accident that took place on 15.04.2017 at about 1:30 am due to rash and negligent driving of vehicle bearing no. HR 55 R 6738 by the respondent no.1 Sh. Anil Vishwakarma, being owned by the respondent no.2 and insured with the respondent no.3? OPP.
2. Whether the petitioners are entitled to compensation, if so, at what amount and from whom? OPP.
3. Relief.
11. In order to establish their claim, the petitioners have examined the petitioner No.1 Smt. Shweta Anand (wife of the deceased) as PW-1 and in her evidence by way of affidavit, she has reiterated and reaffirmed the stand as taken by the petitioners in the present claim petition. She has filed on record her affidavit as Ex. PW1/A; copy of Aadhar Cards of the petitioners as Ex. PW1/1(OSR) (Colly running into 5 pages): copy of ITR filed by the deceased with computation pertaining to the assessment year 2014-15, 2015-16 and 2016-17 as Ex. PW1/2, Ex. PW1/3 and Ex.PW1/5; copy of PAN card of deceased as Ex. PW1/4; Salary slips of the deceased for the month of April, 2016 to March, 2017 as Ex. PW1/6 MACT Case No. 534/17 Page No. 7/24 (colly running into 12 pages); copy of the ration Card as Ex. PW1/7; the copy of the insurance policy of the offending vehicle as Ex. PW1/8; PM report of the deceased as Ex. PW1/9; FIR along with DD, MLC etc. as Ex. PW1/10(colly).
12. In the cross-examination done by the Ld. Counsel for the respondents no.1 & 2, PW-1 admits it to be correct that at the time of the accident, she was not accompanying the deceased. PW-1 further states that the deceased was given the employment letter by the company but she has not filed the same on record.
13. PW-1 further states that her husband was having the life insurance policy. PW-1 further states that some amount was received from the LIC but she does not recollect the exact amount received by them from the LIC. PW-1 further states that at the time of her marriage, her husband was working as an Assistant in some Institute.
14. In the cross-examination done on 26.07.2018, PW-1 states that she has not brought the appointment letter of her deceased husband. By way of volunteer, PW-1 states that only the salary slips are there on record. PW-1 further states that prior to the job in the company at the time of his death, her deceased husband was doing the work as Freelance Counselor. PW-1 further states that she does not know as to what was the source of the other income which has been shown in the income tax returns of her deceased husband. PW- 1 further states that her deceased husband was having the bank account in the name of Tarun Anand with Canara Bank, Kingsway Camp, Delhi. PW-1 further states that Mr. Chiranjiv Anand and her father-in-law are doing the business of packing material of auto parts. By way of volunteer, PW-1 states that now-a- days, the said business is closed.
15. PW-1 further states that her daughter aged about 12 years is studying in 8th class in Queen Merry School situated at North End and her son aged about 9 years old is studying AGDAV School situated at Model Town, North. PW-1 further states that her husband used to pay the fees of both of her MACT Case No. 534/17 Page No. 8/24 children prior to his death. PW-1 further states that now-a-days, their fees is being paid by her.
16. PW-1 further states that she is not doing any job. PW-1 further states that she does not know as to whether her deceased husband was getting any education allowance from the company in which he was in job. PW-1 further states that her husband had joined Verve Health Care Private Limited in the year 2009. PW-1 further states that she does not know as to what was the salary of her husband in the year 2009. PW-1 further states that she does not know as to when and how much increments were given to her husband by the said company.
17. PW-1 further states that she has never met the eye witnesses namely Sh. Prince and Sh. Sunil but she has seen one Sh. Sardarji who is the eye witness but whose name she does not know. PW-1 further states that she does not know the name of the hospital in which her deceased husband was treated.
18. In the cross-examination done by ld. Counsel for the insurance company, PW-1 states that she is a graduate. PW-1 further states that she did not receive any compensation from Verve Health Care Pvt. Ltd. in respect of death of her husband but her deceased husband was having three Life Insurance Policies and she has received the amount of Rs.30 lacs approximately on account of the said life insurance policies after the death of her husband.
19. PW-1 further states that she has not placed on record the abovesaid three LIC Policies of her deceased husband. PW-1 further states that she does not know as to whether the premium of the LIC policies were being paid by her deceased husband or by his employer. PW-1 further states that she does not know as to what was the kind or category of policy of her deceased husband. PW-1 further states that she does not receive any pension MACT Case No. 534/17 Page No. 9/24 from the employer of her deceased husband after his death. PW-1 further states that she did not receive any amount after the death of her husband from his employer. PW-1 further states that she has not filed on record Form 16 of her deceased husband issued by his employer.
20. PW-1 further states that she cannot tell about two deposits of Rs.35,000/- each dated 10.03.2017 and 24.04.2017 in her bank account. PW-1 has exhibited her bank statement as Ex. PW1/P1. PW-1 further states that she does not know as to from where her father-in-law received the bank deposit of Rs.8 lacs in his bank account on 18.08.2017. PW-1 has also exhibited the copy of the bank statement of her father-in-law as Ex. PW1/P2.
21. PW-1 further states that her husband was a commerce graduate.
22. The petitioners have also Sh. Dinesh Joshi, Manager Administrative from Verve Health Care Ltd. as PW-2 and this witness has brought on record the summoned record i.e. the record of employment of the deceased Sh. Tarun Anand. PW-2 has exhibited his authority letter as Ex. PW2/1; the documents relating to the employment of deceased Sh. Tarun Anand as Ex. PW2/2(colly) and the photocopy of his Aadhar Card as Ex. PW2/3(OSR).
23. PW-2 in the cross-examination states that he has been working with the said company since 01.06.2010 and he was not in the employment of the said company when the deceased had joined. PW-2 has denied the suggestion that the appointment letter Ex. PW2/1 is forged and fabricated. PW- 2 has further stated that the salary of the deceased was not subject to deduction on account of PF & ESI. PW-2 further states that their company does not have any group personal accident policy for its employees. PW-2 further states that the consolidated salary of the deceased for the month of March, 2017 was Rs.35,000/-. PW-2 further states that he has not brought the confirmation letter of the deceased.
MACT Case No. 534/17 Page No. 10/2424. The petitioners have also examined Sh. Prince, the eye witness to the accident in question as PW-3 and this witness states that he does not remember the date of the accident but however, the accident took place around 1 year back. PW-3 further states that he was working with DD Motors on the date of the accident. PW-3 further states that he was standing outside his office looking after the vehicles of the company. PW-3 further states that in the meantime, he saw that some vehicles were passing on the road. PW-3 further states that one of the vehicles caused the accident with one motor cyclist but he cannot tell who actually had caused the accident. PW-3 further states that there is Green Lounge ahead of their office and a person from the Lounge told him to stop the vehicle. PW-3 further states that he did not see the occurrence and he went to the spot where the vehicle was stopped. PW-3 further states that the driver of the offending vehicle had fled away from the spot. PW-3 further states that he did not see the driver of the offending vehicle. PW-3 further states that the police officials came at the spot and they enquired from him about the occurrence and he told them that he had reached after the accident. PW-3 further states that he did not witness the occurrence.
25. In the cross-examination done by Ld. Counsel for the respondents no.1 & 2, PW-3 states that he cannot tell as to which had caused the accident as some other vehicles were also passing from both the sides.
26. The insurance company has examined its Assistant Sh. Vineet Kumar as R3W1 and this witness has filed on record the notice issued to the respondents no.1 & 2 u/o 12 Rule 8 of CPC as Ex. R3W1/A; the original postal receipts of the notice sent to the respondent no.1 as Ex. R3W1/B; the original postal receipt of the notice sent to the respondent no.2 on its Delhi and Faridabad addresses as Ex. R3W1/C and Ex. R3W1/D; office copy of the policy as Ex. R3W1/E.
27. R3W1 states that in the present case, the insured vehicle was MACT Case No. 534/17 Page No. 11/24 being driven at the time of the accident by the respondent no.1 without having any valid permit and fitness certificate. R3W1 has exhibited the relevant condition of the policy as Mark A to A in Ex. R3W1/E. R3W1 further states that the police has filed the report regarding action taken against the insured vehicle no. HR 55 R 6738 and the copy of the said report has been exhibited as Ex. R3W1/F (colly, running into three sheets).
28. In the cross-examination done by Ld. Counsel for the petitioners, R3W1 states that the vehicle was covered under the policy for third party claims at the time of the accident. R3W1 further states that the offending vehicle was covered by the insurance policy at the time of the accident.
29. I have thoroughly gone through the testimony of the witnesses and perused the record. I have also given my thoughtful consideration to the arguments addressed by learned counsels for the parties. The petitioner No.4 has also been examined under the MCTAP and I have considered the statement of the petitioner no.4 under MCTAP as well.
My findings on various issues are as under :-
ISSUE NO. 130. The present petition has been filed by the petitioners u/s 140 & 166 M. V. Act and the onus is upon the petitioners to prove the rash and negligent act of the respondent No.1.
31. The petitioners have examined the petitioner No.1 as PW-1. PW-1 has been cross-examined by the respondents in detail but to my mind, even in the cross examination, so far as the material particulars of the accident in question are concerned, PW-1 has stuck to the point that the accident in question was caused on account of the rash and negligent driving of the offending vehicle by the respondent No.1.
32. During the course of arguments, Ld. Counsel for the respondents no.1 & 2 has relied upon the authority titled as Surender Kumar Arora & Anr. vs. MACT Case No. 534/17 Page No. 12/24 Manoj Bisla (DR.) & Ors. Cited as II (2012) ACC 1(SC) and has argued that the onus to prove the rashness and negligence lies upon the petitioners. It has been further argued that the alleged eye witness PW-3 is not aware as to which vehicle had caused the accident in question. It has been further argued that the rashness and negligence on the part of the driver of the alleged offending vehicle has not been proved at all.
33. it is true that PW-1 is not an eye witness to the accident in question. PW-3 claims himself to be the eye witness and he has deposed about the accident in question but the crux of the testimony of PW-3 is to the effect that he is not sure about the offending vehicle. But in the FIR, the name of PW-3 has been specifically mentioned. The offending vehicle was found to be stationed near the place of the accident by the IO. No evidence has been led either by respondent no.1 or by respondent no.2 to controvert the allegations of the petitioners. No complaint is there on record filed by the respondents no.1 & 2 about their alleged false implication.
34. PM report of the deceased is there on record. As per the aforesaid PM report of the deceased, the cause of death is "hemorrhagic shock due to injury to vital organs like lung live and spleen. All the injuries are ante-mortem fresh in duration and possible in road traffic accident".
35. As such, I have no hesitation to hold the respondents no.1 & 2 have utterly failed to prove on record that they have been falsely implicated or that the accident in question was not caused by the respondent no.1 while plying the offending vehicle.
36. Ld. Counsel for the petitioners has claimed that in the case in hand, the charge-sheet pertaining to FIR No.96/17 dated 15.04.2017: P.S. Maya Puri u/s 279/304A IPC was registered against the respondent No.1.
37. In Bimla Devi & Ors vs. Himachal Road Transport Corporation & ors (2009) 13 SC 530, in Kaushnumma Begum and others v/s New India Assurance Company Limited, 2001 ACJ 421 SC, in National Insurance Co. Ltd. vs. Pushpa MACT Case No. 534/17 Page No. 13/24 Rana cited as 2009 ACJ 287, it has been held that the negligence has to be decided on the touchstone of preponderance of probabilities and a holistic view is to be taken. It has been further held that the proceedings under the Motor Vehicle Act are not akin to the proceedings in a Civil Suit and hence, strict rules of evidence are not applicable.
38. In the light of the abovesaid discussion, to my mind, the petitioners have been able to prove issue No.1 in their favour and accordingly, the issue No.1 is decided in favour of the petitioners.
COMPENSATION / ISSUE NO. 239. The petitioner no.1 has placed on record the photocopy of PAN Card of the deceased in the form of Ex. PW1/4. In which, the date of birth of the deceased has been mentioned as 04.11.1975. The date of accident is 15.04.2017. Accordingly, the age of the deceased is taken as 42 years on the date of accident.
40. In the claim petition, the petitioners have claimed that the deceased was working with M/s Verve Healthcare Ltd. and getting a salary of Rs.35,000/- per month. In order to prove the salary of the deceased, the petitioner no.1 has placed on record the copy of the ITR of the deceased alongwith computation pertaining to the assessment year 2014-15, 2015-16 and 2016-17 in the form of Ex. PW1/2, Ex. PW1/3 and Ex. PW1/5.
41. The petitioners have also examined Sh. Dinesh Joshi from the side of employer of the deceased and this witness has filed on record the documents relating to the employment of the deceased Sh. Tarun Anand as Ex. PW2/2(colly, running into 13 pages).
42. Perusal of Ex. PW2/2 reveals that the deceased Sh. Tarun Anand was getting a salary of Rs.35,000/- per month which has been mentioned in salary slip for the month of March, 2017. Further perusal of copy of the ITR for the assessment year 2016-17 reveals that the total gross income of the deceased has been mentioned as Rs.4,62,088/-.
MACT Case No. 534/17 Page No. 14/2443. The appointment letter and the salary slips of the deceased are there on record. The ledger account from 01.04.2016 to 31.03.2017 is also there on record. As per the said ledger account, the salary for the month of March, 2017 of the deceased was Rs.35,000/-. However, as per the salary slips which are there on record, the basic pay of deceased was Rs.17500/- and HRA was Rs.8750/-. DA has not been mentioned at all in the abovesaid salary slips and rather certain other allowances have been mentioned such as conveyance, CEA, medical allowance, books etc. As such, to my mind, the salary of the deceased has to be taken as Rs.17500/- + Rs.8750/- which comes to Rs.26,250/- per month.
44. The petitioner no.4 has been examined on 23.08.2019 under MCTAP and he states that all the petitioners are not doing any work. Ld. Counsel for the insurance company has argued that father of the deceased cannot be taken as dependent upon the deceased but to my mind, there is nothing on record to show that father of the deceased has some fixed income and that is why, the abovesaid submission of Ld. Counsel for the insurance company cannot be accepted.
45. As such, there were five dependents on the deceased at the time of accident.
46. In terms of the judgment of the Hon'ble Supreme Court of India in 'Sarla Verma Vs. DTC decided on 15.4.2009 in C.A. No. 3483/08', the deceased might have been spending one- fourth of Rs.26,250/- on his personal expenses as he had left behind five dependents on the deceased. Therefore, after deducting one- fourth towards personal expenses, the loss of dependency per month comes out to Rs. 19,688/- =[Rs. 26,250/- less Rs. 6562 (after rounding of Rs.6562.5) ]
47. The Hon'ble Apex Court of the land in the latest judgment which has arisen out of SLP (Civil) No. 25590 of 2014 titled as National Insurance Company Limited vs. Pranay Sethi & ors decided on 31.10.2017 has held as under:-
"61. In view of the aforesaid analysis, we proceed to record our conclusions:-
(i) The two-Judge Bench in Santosh Devi should have MACT Case No. 534/17 Page No. 15/24 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% 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."
MACT Case No. 534/17 Page No. 16/2448. Going by the ratio of the abovestated authorities, the multiplier has to be selected as per the age of the deceased which is 42 years in the case in hand, accordingly, the multiplier of 14 as per Sarla Verma vs. DTC 2009 ACJ 1298 SC shall be applicable.
49. An addition of 25% on account of the future prospects has to be given as the age of the deceased was 42 years. Accordingly, the monthly income of the injured has to be calculated as Rs.24,610/- (Rs.19688/- +Rs.4922/- which is 25% of Rs.19,688/-).
50. The appropriate multiplier applicable is '14' (for the age group of 41 years to 45 years) as mentioned in Sarla Verma's judgment (Supra). Hence, the total loss of dependency comes out to be Rs. 41,34,480/- = (Rs. 24610 x12 x 14).
51. The Hon'ble Supreme Court of India in, "National Insurance Company Ltd. vs. Pranay Sethi & Ors. in Special Leave Petition (Civil) No.25590 of 2014 has granted a sum of Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- on account of loss of estate, loss of consortium and funeral expenses respectively. The aforesaid amounts are to be enhanced at the rate of 10% in every three years.
52. In view of the abovesaid judgment, I hereby award Rs. 15,000/- towards loss of estate; Rs.40,000/- towards loss of consortium and Rs.15,000/- towards funeral charges.
53. Therefore, in total, I hereby award a sum of Rs.42,04,480/- (Rupees Forty Two Lacs Four Thousand Four Hundred and Eight Only) = (Rs.41,34,488/- + Rs. 70,000/-) in favour of the petitioners and against the respondents.
R E L I EF / ISSUE NO.3
54. I award Rs.42,04,480/- (Rupees Forty Two Lacs Four Thousand Four Hundred and Eight Only) as compensation with interest at the rate of 9% per annum including interim award, if any from the date of filing the DAR/claim petition i.e. 29.07.2017 till the date of the payment of the award amount, in favour MACT Case No. 534/17 Page No. 17/24 of the petitioners and against the respondents on account of their liability being joint and several. The petitioner No.1 who is the wife of the deceased shall have 40% share in the award amount, the petitioners No. 2 & 3 who are the minor daughter and son of the deceased shall have 20% each share in the award amount and the petitioners no. 4 & 5 who are the mother and father of the deceased shall have 10% each share in the award amount.
APPORTIONMENT OF LIABILITY
55. Ld. Counsel for the insurance company has argued that the respondents no.1 & 2 were not having any valid permit or fitness certificate at the date of the accident. He has relied upon the testimony of Sh. Vineet Kumar, its assistant who has been examined as R3W1.
56. Whereas on the other hand, Ld. Counsel for the respondents no.1 & 2 has relied upon an authority titled as Ketal Singh vs. Narinder Kumar & ors. cited as 2016 ACJ 2145 decided on 16.10.2015 by the Hon'ble High Court of Himachal Pradesh at Shimla and the authority titled as Surender Kumar Arora & Anr. vs. Manoj Bisla (DR.) & Ors. cited as II (2012) ACC 1(SC) decided on 20.03.2012 by the Hon'ble Supreme Court of India.
57. In the authority titled as Ketal Singh vs. Narinder Kumar & Ors., the Hon'ble High Court of Himachal Pradesh in paras no.11, 12 & 13 has held as under:-
"11. The Claims Tribunal, while discussing issue No. 9A, has held that the offending vehicle was being driven without any route permit, which fact weighed with the Tribunal in holding that the owner had committed wilful breach of the terms and conditions of the insurance policy. Copies of the insurance policy and the registration certificate have been placed on record as Exhs. RY and RW-2/A, respectively, which do disclose that the vehicle was duly registered and insured with the insurer. However, copy of the route permit has not been proved on the record.
12. In view of the above, the question is-Whether the vehicle being driven in the area, the mention of which has not been MACT Case No. 534/17 Page No. 18/24 made in the route permit, can be termed as a ground to exonerate the insurer from its liability?
13. The insurer has failed to prove that the cause of accident was the geographical conditions prevailing in the area where the vehicle was being plied at the time of accident without any route permit. On the other hand, the evidence does disclose that the offending truck was parked in the middle of the road. Thus, the accident the outcome of sheer negligence on the part of the truck driver. Therefore, by no stretch of imagination, it can be held that the owner has committed wilful breach".
58. It has to be seen that in the case in hand, not only the respondent no.1 failed to produce the valid permit but they have also failed to produce the valid fitness certificate of the offending vehicle at the time of the accident. The respondent no.2 was challaned under section 66/192 and 56/192 of the MV Act by the IO. The insurance company has examined Sh. Vineet Kumar working as Assistant with it as R3W1 on this aspect. No evidence has been led by the respondents no.1 & 2. As such, to my mind, the insurance company has been able to prove that there was breach of the terms and conditions of the insurance policy and accordingly, the insurance company is held entitled for recovery rights against the respondents no.1 & 2 but only after payment of the award amount to the petitioners.
59. Since the offending vehicle, was admittedly insured with the respondent No.3, the respondent No.3 is hereby directed to deposit the award amount in favour of the petitioners with SBI, Tis Hazari Courts, Delhi within a period of 30 days from the date of passing of this award together with the interest as stated herein above under the intimation to this court and under intimation to the petitioners. In case of any delay, it shall be liable to pay interest at the rate of 12% per annum for the period of delay.
MODE OF DISBURSEMENT OF THE AWARD AMOUNT TO THE CLAIMANTS AS PER THE PROVISIONS OF THE 'MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE' (MCTAP).
MACT Case No. 534/17 Page No. 19/2460. This court is in receipt of the orders dated 07.12.2018 passed by the Hon'ble High Court of Delhi in FAO no. 842/2003 titled as Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors whereby the Hon'ble High Court of Delhi has formulated MACAD(Motor Accident Claims Annunity Deposit Scheme) which has been made effective from 01.01.2019. The said orders dated 07.12.2018 also mentions that 21 banks including State Bank of India is one of such banks which are to adhere to MACAD. The State Bank of India, Tis Hazari Courts, Delhi is directed to disburse the amount in accordance with MACAD formulated by the Hon'ble High Court of Delhi.
61. Keeping in view the entirety of the facts and circumstances involved in the present case and the abovesaid guidelines laid down by the Hon'ble High Court of Delhi, the respondent no.3 is directed to deposit the amount of Rs.42,04,480/- (Rupees Forty Two Lacs Four Thousand Four Hundred and Eight Only) as stated herein above with SBI, Tis Hazari Courts, Delhi, out of which the amount of Rs. 4,04,480/- shall be released to the petitioner no.1 i.e. the wife of the deceased keeping in view the submissions of the Ld. Counsel for the petitioners and that of the respondents as well and in the entirety of the facts.
62. The rest of the amount of Rs.38,00,000/- shall be kept in 380 equal monthly FDR's for the period of one month to 380 months for an amount of Rs. 10,000/- each with cumulative interest in favour of the petitioners in their abovementioned shares. However, money can be withdrawn through withdrawl slip only.
63. As stated herein above, since the petitioners No. 2 & 3 are minors, the amount of their FDRs shall not be released until they reach the age of majority.
64. The following conditions are to be adhered to by SBI, Tis Hazari Courts, 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 MACT Case No. 534/17 Page No. 20/24 accounts of the claimant(s) i.e. the savings bank account(s) of the claimant(s) shall be an individual savings bank account(s) and not a joint account(s).
(b) The original fixed deposit shall be retained by the bank in safe custody. However, the statement containing FDR number, FDR amount, date of maturity and maturity amount shall be furnished by bank to the claimant(s).
(c) The monthly interest be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant(s) near the place of their residence.
(d) The maturity amounts of the FDR(s) be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant (s) near the place of their residence.
(e) No loan, advance, withdrawal or pre-mature discharge be allowed on the fixed deposits without permission of the Court.
(f) The concerned bank shall not be issue any cheque book and/or debit card to claimant(s). However, in case the debit card and/or cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount. The bank shall debit card (s) freeze the account of the claimant(s) so that no debit card be issued in respect of the account of the claimant(s) from any other branch of the bank.
(g) The bank shall make an endorsement on the passbook of the claimant(s) to the effect that no cheque book and/or debit card have been issued and shall not be issued without the permission of the Court and claimant(s) shall produce the passbook with the necessary endorsement before the Court on the next date fixed for compliance.
(h) It is clarified that the endorsement made by the bank along with the duly signed and stamped by the bank official on the passbook(s) of the claimant(s) is sufficient compliance of clause (g) above.
65. In accordance with the orders dated 08.02.2019 passed by the Hon'ble High Court of Delhi in FAO no. 842/2003 in Rajesh Tyagi and others Vs. Jaibir Singh and others, Mr. Rajan Singh, Assistant General Manager has been appointed as Nodal Officer of SBI having Phone no. 022- MACT Case No. 534/17 Page No. 21/24 22741336/9414048606 and e mail ID [email protected]. In case of any assistance or non compliance, the aforesaid Nodal Officer may be contacted to. A copy of this order be sent by e-mail to the aforesaid Nodal Officer of the aforesaid bank by the Ahlmad of the Court immediately in accordance with the directions of the Hon'ble High Court as contained in the orders dated 07.12.2018. The Nodal Officer of the bank shall ensure the disbursement of the award amount within three weeks of the receipt of the e-mail as mentioned in the orders dated 07.12.2018 passed by the Hon'ble High Court of Delhi.
A separate file be prepared for compliance report by the Nazir and put up the same on 24.12.2019.
A copy of this award be given to the parties free of cost. A copy of this award be sent to the concerned Ld. Metropolitan Magistrate as well as DSLSA as per the provisions of the MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE (MCTAP). Digitally signed by RAJ KUMAR File be consigned to Record Room. RAJ Date:
KUMAR 2019.11.28
15:18:08
+0530
Announced in the open court ( RAJ KUMAR )
On 22nd of November, 2019 P.O. MACT (WEST-01)
Delhi (22.11.2019)
MACT Case No. 534/17 Page No. 22/24
FORM -IVA
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN DEATH CASES
1. Date of accident :- 15.04.2017
2. Name of the deceased :- Sh. Tarun Anand
3. Age of the deceased :- 42 years
4. Occupation of the deceased :- Private Job
5. Income of the deceased :- Rs. 26,250/- per month
6. Name, age and relationship of legal representative of deceased:-
S. Name Age Relation No. (I) Smt. Shweta Anand Year of birth Wife of the deceased 1976 (ii) Dakshta Anand Year of birth Daughter of the deceased 2005 (iii) Master Raman DOB: Son of the deceased Anand 24.08.2009 (iv) Smt. Kiran Anand DOB: Mother of the deceased 14.10.1952 (v) Sh. Rohini Kumar DOB: Father of the deceased Anand 05.5.1946 Computation of Compensation Sr. No. Heads Awarded by the Claim Tribunal 7. Income of the deceased(A) Rs. 26,250/- 8. Add-Future Prospects (B) 25% 9. Less-Personal expenses 1/4th has been deducted of the deceased(C) 10. Monthly loss of Rs.24,610/- MACT Case No. 534/17 Page No. 23/24 dependency[(A+B)-C=D] 11. Annual loss of dependency Rs.2,95,320/- (Dx12) 12. Multiplier(E) 14 13. Total loss of dependency Rs.41,34,480/- (Dx12xE= F) 14. Medical Expenses(G) NIL 15. Compensation for loss of Rs.40,000/- consortium(H) 16. Compensation for loss of Rs.15,000/- estate(I) 17. Compensation towards Rs.15,000/- funeral expenses(J) 18. TOTAL COMPENSATION Rs.42,04,480/- (F+G+H+I+J+=K) 19. RATE OF INTEREST 9% per annum AWARDED
20. Interest amount up to the Rs.8,75,582.96 (2 years 3 months and 23 date of award (L) days)
21. Total amount including Rs.50,80,062.96/-
interest (K + L)
22. Award amount released Rs.4,04,480/-
23. Award amount kept in Rs.38,00,000/-
FDRs
24. Mode of disbursement of Mentioned in the award the award amount to the claimant (s).
25. Next date for compliance 24.12.2019 of the award (RAJ KUMAR) P.O.MACT (WEST-01) Delhi (22.11.2019) MACT Case No. 534/17 Page No. 24/24 MACT Case No. 534/17 22.11.2019 Present: None Award has been passed separately.
File be consigned to Record Room.
A separate file be prepared for compliance report by the Nazir and put up the same on 24.12.2019.
A copy of this award be sent to the concerned Ld. Metropolitan Magistrate as well as DSLSA as per the provisions of the MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE (MCTAP).
(RAJ KUMAR) P.O.MACT (WEST-01) Delhi (22.11.2019) MACT Case No. 534/17 Page No. 25/24