Delhi District Court
Hemkant Kaushik vs Upender Singh And Ors on 22 April, 2026
IN THE COURT OF SH. ABHILASH MALHOTRA
PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS
TRIBUNAL-02, PATIALA HOUSE COURTS, NEW DELHI
In the matter of:
SH. HEMKANT KAUSHIK Vs. UPENDER SINGH
& ORS.
MACT NO. 90 / 2021
1. Sh. Hemkant Kaushik
S/o Sh. Bal Kishan Sharma
R/o F-35, Kilokari, Ring Road,
Jeevan Nagar, Jungpura,
Defence Colony, South Delhi,
Delhi -110014. ... Petitioner
Versus
1. Sh. Upender Singh
S/o Sh. Jaswant Singh
R/o Village Jagatpur, PS- Bichhwan,
Mainpuri, UP
.... Driver/
Respondent no.1
2. M/s Choudhary Tours & Travels Pvt. Ltd.
Permanent R/o Y-348, C/2, Sector -12, Noida, Gautam Budh Nagar, UP.
Also at: Near Shiv Temple, Ahera, Baghpat, UP.
.... Owner/ Respondent no.2
3. M/s IFFCO-TOKIO General Insurance Company Ltd.
Regional Office at - 505, 5th Floor, Kailash Building, 26, Kasturba Gandhi Marg, Connaught Place, New Delhi -110001 ....Insurance Company/ Respondent no. 3 MACT No. 90/21 Page. 1 of 41 Hemkant Kaushik Vs Upender Singh & Ors Date of accident 09.03.2021 Date of filing Claim Petition 18.08.2021 Date of framing of issues 01.09.2022 Date of concluding arguments 11.04.2026 Date of decision 22.04.2026 AWARD/JUDGMENT Index to the Judgment I. BRIEF FACTS/CASE OF THE CLAIMANT(s)...........................................4 II. FRAMING OF ISSUES..................................................................................5 III. ARGUMENTS OF COUNSELS OF THE PARTIES.....................................8 IV. ISSUE WISE ANALYSIS & FINDINGS THERETO..................................10
(a) Issue No.1: Whether the deceased Neha Kaushik sustained fatal injuries in the accident which occurred on 09.03.2021 at about 08:30a.m. near Flyover, Sector -28, Gautam Budh Nagar, UP caused by rash and negligent driving of vehicle No. UP-17-AT-7109 being driven by respondent no.1 , owned by respondent no. 2 and insured with respondent no. 3?OPP...10 i. Presumption qua complicity upon filing chargesheet:...................10 ii. The evidence on record qua negligence:........................................11 iii. Preponderance of probabilities:......................................................13 iv. Finding:.......................................................................................... 14
(b) Issue No.2: Whether claimant is entitled to compensation, and to what amount ?.......................................................................................................... 15 i. Principles qua assessment of compensation:..................................15 ii. Monthly Income of the deceased:..................................................17 iii. Future prospects:............................................................................20 MACT No. 90/21 Page. 2 of 41 Hemkant Kaushik Vs Upender Singh & Ors iv. Personal expenses of the deceased:................................................22 v. Monthly & Annual Loss of dependency:.......................................23 vi. Total Loss of Dependency:.............................................................24 vii. Other Heads:...................................................................................24 viii. Medical Expenses:..........................................................................25 ix. Compensation for Loss of Consortium:.........................................26 x. Compensation for Loss of Estate:..................................................28 xi. Compensation towards Funeral Expenses:.....................................28 xii. Total Compensation:.......................................................................28
(c) Issue No.3: Relief.................................................................................. 28 i. Amount of Award:..........................................................................28 ii. Rate of Interest:..............................................................................29 V. DEPOSIT OF AWARD& RELEASE/APPORTIONMENT.........................30 i. Deposit of Award:...........................................................................30 ii. Disbursement of the award amount & protection thereof:.............32 VI. LIABILITY...................................................................................................34 VII.. SUMMARY OF COMPUTATION OF AWARD AMOUNT IN CASES OF DEATH.................................................................................................................36 VIII..............................COMPLIANCE QUA PROVISIONS OF THE SCHEME 39 MACT No. 90/21 Page. 3 of 41 Hemkant Kaushik Vs Upender Singh & Ors I. BRIEF FACTS/CASE OF THE CLAIMANT(s)
1. In the present case, the accident had occurred out of Delhi and petition was filed. A claim petition was filed by the legal heirs of the deceased.
2. The issue regarding the jurisdiction was raised by the Insurance Company. The office of the Insurance Company is stated to be within the jurisdiction of this Tribunal and in lieu of the judgment passed by Hon'ble Supreme Court of India in the case titled as Malati Sardar v. National Insurance Company Limited and Ors. (2016) 3 SCC 43, the issue of jurisdiction is no more in dispute.
3. In present case, FIR bearing no. 0195/2021 was registered in PS- Noida, Sector-20, District Commissionerate, Gautam Budh Nagar Under Section 279/338/304A/427 IPC on the complaint made by complainant Mr. Rinku Kaushik. A charge-sheet was filed by the police against the driver Mr. Upender Singh (R-1) under Section 279/338/304A/427 IPC, on the charges of rash driving of vehicle no. UP-17-AT-7109. It is stated that deceased Smt. Neha Kaushik was a pillion rider on motorcycle no. DL-S7-BX-0530 which was driven by her husband/ petitioner. The motorcycle was hit by offending / insured vehicle bearing registration no. UP-17- AT-7109 from backside. Due to the impact, the motorcycle fell down. Pillion rider Smt. Neha Kaushik received multiple injuries and died.
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4. As per the charge sheet, the vehicle was driven by respondent no. 1 driver, owned by respondent no. 2 and insured by respondent no. 3/Insurance company.
5. During the proceedings issues were framed on 01.09.2022 Thereafter the written submissions were filed by the parties in the prescribed format. The financial statement of the legal representative of deceased was recorded on 29.10.2025.
II. FRAMING OF ISSUES
6. Vide order dated 01.09.2022, following issues were framed by this Tribunal:-
"1. Whether the deceased Neha Kaushik sustained fatal injuries in the accident which occurred on 09.03.2021 at about 08:30a.m. near Flyover, Sector -28, Gautam Budh Nagar, UP caused by rash and negligent driving of vehicle No. UP-17- AT-7109 being driven by respondent no.1 , owned by respondent no. 2 and insured with respondent no. 3?OPP
2. Whether the petitioners are entitled to any compensation? If so, to what amount and from whom? OPP
3. Relief."
7. Recording of evidence: in present case, PW-1 is Mr. Hemkant Kaushik. He tendered his affidavit in chief by way of evidence as Ex. PW 1/A. He has relied upon the following documents viz., Copy of Aadhar Card as Ex. PW 1/1; Copy of PAN Card as MACT No. 90/21 Page. 5 of 41 Hemkant Kaushik Vs Upender Singh & Ors Ex. PW 1/2; Copy of Aadhar Card of deceased as Ex. PW 1/3; Copy of Death Certificate of deceased as Ex. PW 1/ 4; Copy of education document of deceased as Ex. PW 1/5 (Colly); Certified copy of Panchayat Nama of deceased as Ex. PW 1/6; Certified copy of Charge sheet/ Final report as Ex. PW 1/7; Certified copy of FIR as Ex. PW 1/8; Certified copy of Site Map as Ex. PW 1/9; Certified copy of PMR as Ex. PW 1/10; Certified copy of MLC as Ex. PW 1/11; Certified copy of Technical Inspection of offending vehicle as Ex. PW 1/12; Certified copy of Technical Inspection of vehicle bearing registration no. DL- S7-BX-0530 as Ex. PW 1/13.
8. PW-1 in his testimony stated that on 09.03.2021 he along with his wife Smt. Neha Kaushik was going on motorcycle bearing no. DL-S7-BX-0530. At about 8:30 p.m. when they reached near flyover of Sector -28, Gautam Budh Nagar, a bus bearing registration no. UP-17-AT-7109 hit the motorcycle from behind at high speed in rash manner. Due to the impact, pillion rider Smt. Neha Kaushik fell on the road and received multiple injuries. PW-1 and his wife / deceased Smt. Neha Kaushik were taken to Kailash Hospital and Heart Institute, Sector - 27, Noida where Smt. Neha Kaushik died during her treatment on 09.03.2021.
9. PW-1 stated that his wife / deceased Smt. Neha Kaushik was imparting tuition to the students at her residence and was earning around Rs.20,000/- per month.
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10.In his cross examination, PW-1 reiterated that the impact was caused by the bus from backside. After the impact the bike slipped around 100-150 meters. He clarified that he as well his wife were wearing helmets. He stated that he suffered fractured and his wife died. He clarified that no speed breaker was there at the spot. He denied rash driving on his part. He denied that he has suddenly come in front of bus. He stated that his wife had come under the tyre of the offending bus on the driver side and he removed her with the help of 2-3 persons present at the spot.
11.PW-1 stated that he was living in Delhi at the time of accident.
He stated that his wife was imparting tuition but no proof of income is filed.
12.RW-1 / driver Mr. Upender Singh examined himself as a witness. He tendered his affidavit in chief by way of evidence as Ex. RW1/A. He proved on record copy of his Aadhar Card as Ex. RW1/1.
13.RW-1 in his affidavit in chief stated that the FIR in the present case is registered in connivance with the police. It is stated that the driving license of the petitioner is not filed on record as he was not having any valid driving license. It is stated that no eye witness is cited. It is stated that the vehicle was insured with R-3 on the date of accident.
14.RW-1 in his cross examination stated that he is not aware what is written in his affidavit. Later on, he stated that his affidavit MACT No. 90/21 Page. 7 of 41 Hemkant Kaushik Vs Upender Singh & Ors was explained to him in Hindi by his Advocate. He stated that he was driving at the speed around 40 KMPH. He accepted the suggestion that the bike driven by petitioner suddenly came in front of bus driven by him. He stated that bike first hit the swift car going in front of bus and then fell in front of the bus. He stated that the petitioner as well as deceased pillion rider were not wearing helmets at the time of accident. He accepted the suggestion that the accident took place due to negligence of petitioner / bike rider.
15.R-2 Registered owner and R-3 Insurance company did not lead any evidence.
III. ARGUMENTS OF COUNSELS OF THE PARTIES
16.Ld. Counsel for the claimant submitted that they have filed the copy of FIR and charge sheet. He submitted that the said record clearly shows that the offending vehicle bearing no. UP-17- AT-7109 was seized during the investigation and later on released on Superdari. He submitted that the charge sheet in that case was already filed against the driver Mr. Upender Singh u/s 279/338/304-A/427 IPC which clearly establishes the rash driving on part of the offending vehicle.
17.Ld. counsel for the petitioner submitted that RW1 driver Mr. Upender Singh has stepped into the witness box and in his cross examination has admitted the accident. He submitted that thought RW1 in his cross examination has accepted the MACT No. 90/21 Page. 8 of 41 Hemkant Kaushik Vs Upender Singh & Ors suggestion of insurance company that the accident was caused due to negligence of petitioner / bike rider, but RW1 has not stated anything in this regard in the examination in chief. He submitted that RW-1 has not led any concrete evidence to show that petitioner / bike rider was negligent. He submitted that in the investigation it was concluded that the bus driven by RW1 was being rashly driven and there is nothing on record to rebut the findings of the investigation.
18.During the course of arguments, Ld. Counsel for petitioner submitted that though PW-1 in his testimony has stated that deceased was earning Rs.25,000/- per month from tuition but they have 'No Objection' in case minimum wages for skilled worker during the relevant time as applicable to house wife be considered in this case.
19.No one has appeared for R-1 /driver and R-2/ owner to address final arguments. Ld. Counsel for Insurance company submitted that R-1 did not intimate about the accident to the insurance company as per the terms of the policy. It is submitted that the driving license of bike driver / petitioner is not filed on record. The insurance of offending vehicle is admitted by the insurance company.
MACT No. 90/21 Page. 9 of 41 Hemkant Kaushik Vs Upender Singh & Ors IV. ISSUE WISE ANALYSIS & FINDINGS THERETO (a) Issue No.1: Whether the deceased Neha Kaushik sustained
fatal injuries in the accident which occurred on 09.03.2021 at about 08:30a.m. near Flyover, Sector -28, Gautam Budh Nagar, UP caused by rash and negligent driving of vehicle No. UP-17-AT-7109 being driven by respondent no.1 , owned by respondent no. 2 and insured with respondent no. 3?OPP i. Presumption qua complicity upon filing chargesheet:
20. Rule 21 of Annexure XIII of The Central Motor Vehicles Rules, 1989 mandates as follows:-
21. Claims Tribunal shall treat Dar as a claim petition for compensation under Sub-Section (4) of Section 166 of the Motor Vehicles Act, 1988 (1) The Claims Tribunal shall treat the DAR filed by the Investigating Officer as a claim petition under Section (4) of Section 166 of the Motor Vehicles Act, 1988. However, where the Investigating Officer is unable to produce the claimant(s) on the first date of hearing the Claims Tribunal shall register the DAR as a claim petition after the appearance of the claimant(s).
(2) where the claimant(s) have filed a separate claim petition, the DAR may be tagged along with the claim petition. (3) If the Report under Section 173 of the Code of Criminal Procedure, 1973 (2) of 1974 has not been filed at the time of filing of the DAR, the Claims Tribunal may either wait till filing of the Report under Section 173 of the said Code of Criminal Procedure or record the statement of the eye witness(es) to satisfy itself with respect to the negligence before passing the award.
(4) The Claims Tribunal shall register the FAR as a Miscellaneous application and the IAR as well as DAR shall be taken on record in the same Miscellaneous application.
MACT No. 90/21 Page. 10 of 41 Hemkant Kaushik Vs Upender Singh & Ors
21. In Bajaj Allianz General Insurance Company Ltd. Vs. Meera Devi & Ors decided on 16.02.2021, 2021 LawSuit (Del) 858 it was held :
8. ..... In view of Delhi Motor Accident Claim Tribunal Rules, 2008, contents of DAR had to be presumed to be correct and read in evidence without formal proof of the same unless proof to the contrary was produced........".
22.In a recent order dated 25.02.2025, passed in Ranjeet & Anr v Abdul Nayem Keb & Anr in SLP (c) 10351/2019, it was held in trenchant terms as thus:
"It is settled in law that once a charge sheet has been filed and the driver has been held negligent, no further evidence is required to prove that the bus was being negligently driven by the bus driver. Even if the eyewitnesses are not examined, that will not be fatal to prove the death of the deceased due to negligence of the bus driver."
ii. The evidence on record qua negligence:
23.Claimant has placed on record the certified copy of charge sheet in FIR no. 195/2021, PS Noida, Sector -20, District Commissionerate Gautam Budh Nagar, UP under Section 279/338/304-A/427 IPC. Record shows that the charge sheet u/s 279/338/304-A/427 IPC was filed in the present case against the driver Sh. Upender Singh. The charge sheet records that the due to rash driving of the driver /(R-1) of the offending vehicle bearing no. UP-17-AT-7109 accident occurred in which Smt. Neha Kaushik suffered multiple injuries and died.
MACT No. 90/21 Page. 11 of 41 Hemkant Kaushik Vs Upender Singh & Ors
24.R-1 driver Mr. Upender Singh has appeared in the witness box. R-1 in his affidavit in chief did not dispute the factum of accident. He stated that the petitioner / bike rider was not having any driving license and the case is registered in collusion with the police.
25.RW1 in his cross examination stated that the accident had occurred due to negligent driving of bike rider / petitioner. In his cross examination he stated that bike driver firstly hit a swift car going in front of the bus due to which the bike fell down. The said version is neither stated in the affidavit in chief of RW-1 and nor mentioned in the written statement of R-1 and R-2. It is clear that the said statement in the cross examination is an afterthought. Investigation by the police does not mention anything like that. The testimony of PW-1 bike rider has remained consistent before the police as well as in the evidence before this Tribunal. RW-1 stated that his bike was hit from backside by the offending/ insured vehicle. The said fact is also recorded in the FIR. The improved afterthought testimony of RW1 in cross examination by Ld. counsel for Insurance cannot dent the cogent sequence of events which is also confirmed by the investigation.
26.R-2 registered owner and R-3 insurance company failed to lead any evidence to rebut the fact that the accident was occurred due to rash driving on the part of the R-1 driver.
MACT No. 90/21 Page. 12 of 41 Hemkant Kaushik Vs Upender Singh & Ors
27.Insurance company has taken a plea that the biker / petitioner was not holding any driving license. The said plea does not go to the root of the matter. Firstly, because the deceased in the present case was a pillion rider. Secondly, even if the bike rider was not having any driving license that does not dilute the rash driving on the part of the insured / offending vehicle driver. Reference in this regard can be made to decision in the case titled as Mohd. Siddique v. National Insurance Co. Ltd., (2020) 3 SCC 57.
28.From the aforesaid, it is clear that the accident had occurred due to rash driving of offending/insured vehicle driven by R-1/driver.
iii. Preponderance of probabilities:
29.It is trite law that in a proceeding before the Claims Tribunal, the claimant does not have to establish negligence on the part of the driver respondent beyond reasonable doubt. The standards of establishing negligence is predicated on preponderance of probabilities. In the present case too, negligence has been established on this principle.
30.In this context, it would be useful to peruse Mathew Alexander v. Mohd. Shafi, (2023) 13 SCC 510 wherein it was observed as thus:
"In this context, we could refer to the judgments of this Court in N.K.V. Bros. (P) Ltd. v. M. Karumai Ammal [N.K.V. Bros. (P) Ltd. v. M. Karumai MACT No. 90/21 Page. 13 of 41 Hemkant Kaushik Vs Upender Singh & Ors Ammal, (1980) 3 SCC 457 : 1980 SCC (Cri) 774] , wherein the plea that the criminal case had ended in acquittal and that, therefore, the civil suit must follow suit, was rejected. It was observed that culpable rashness under Section 304-AIPC is more drastic than negligence under the law of torts to create liability. Similarly, in Bimla Devi v. Himachal RTC [Bimla Devi v. Himachal RTC, (2009) 13 SCC 530 : (2009) 5 SCC (Civ) 189 : (2010) 1 SCC (Cri) 1101] ("Bimla Devi"), it was observed that in a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, the Tribunal has to determine the amount of fair compensation to be granted in the event an accident has taken place by reason of negligence of a driver of a motor vehicle. A holistic view of the evidence has to be taken into consideration by the Tribunal and strict proof of an accident caused by a particular vehicle in a particular manner need not be established by the claimants. The claimants have to establish their case on the touchstone of preponderance of probabilities. The standard of proof beyond reasonable doubt cannot be applied while considering the petition seeking compensation on account of death or injury in a road traffic accident. To the same effect is the observation made by this Court in Dulcina Fernandes v. Joaquim Xavier Cruz [Dulcina Fernandes v. Joaquim Xavier Cruz, (2013) 10 SCC 646 : (2014) 1 SCC (Civ) 73 : (2014) 1 SCC (Cri) 13] which has referred to the aforesaid judgment in Bimla Devi [Bimla Devi v. Himachal RTC (2009) 13 SCC 530."
iv. Finding:
31.In view of foregoing discussion, it stands proved on the touchstone of preponderance of probabilities that the aforesaid accident took place due to rash and negligent driving of the transgressing/offending vehicle bearing registration no. UP-17-
MACT No. 90/21 Page. 14 of 41 Hemkant Kaushik Vs Upender Singh & Ors AT-7109 and the said vehicle at that time was driven by respondent no. 1, owned by respondent no. 2 and insured by respondent no.3. Hence, issue no. 1 is decided in favour of the claimant and against the respondents.
32.It is clarified that the findings given are limited for the purposes of this inquiry and shall not impact the trial of the criminal case.
(b) Issue No.2: Whether claimant is entitled to compensation, and to what amount ?
i. Principles qua assessment of compensation:
33.Before adverting to the submissions of the counsels in this regard, it would be apposite to refer to the law of the land qua this aspect. The law has been enunciated by Hon'ble Supreme Court in Sarla Verma & Ors. v. Delhi Transport Corporation & Ors. (2003) 6SCC 121 and National Insurance Company Limited v. Pranay Sethi & Ors.(2017) 16 SCC 680.
34.An essential ingredient of the award is the loss of dependency.
To calculate the same, it would be of utmost significance to peruse the following seminal directions issued in Sarla Verma (supra):
"18.Basically only three facts need to be established by the claimants for assessing compensation in the case of death:
(a)age of the deceased;
(b) income of the deceased; and
(c) the number of dependants MACT No. 90/21 Page. 15 of 41 Hemkant Kaushik Vs Upender Singh & Ors The issues to be determined by the Tribunal to arrive at the loss of dependency are:
(i) additions/deductions to be made for arriving at the income;
(ii) the deduction to be made towards the personal living expenses of the deceased; and
(iii) the multiplier to be applied with reference to the age of the deceased.
If these determinants are standardised, there will be uniformity and consistency in the decisions. There will be lesser need for detailed evidence. It will also be easier for the insurance companies to settle accident claims without delay
19.To have uniformity and consistency, the Tribunals should determine compensation in cases of death, by the following well-settled steps:
Step 1 (Ascertaining the multiplicand) The income of the deceased per annum should be determined. Out of the said income a deduction should be made in regard to the amount which the deceased would have spent on himself by way of personal and living expenses. The balance, which is considered to be the contribution to the dependant family, constitutes the multiplicand.
Step 2 (Ascertaining the multiplier) Having regard to the age of the deceased and period of active career, the appropriate multiplier should be selected. This does not mean ascertaining the number of years he would have lived or worked but for the accident. Having regard to several imponderables in life and economic factors, a table of multipliers with reference to the age has been identified by this Court. The multiplier should be chosen from the said table with reference to the age of the deceased. Step 3 (Actual calculation) The annual contribution to the family (multiplicand) when multiplied by such multiplier gives the "loss of dependency"
to the family."
35.To ascertain the 'multiplier' mentioned in Step 2 above, it was further laid down in Sarla Verma (supra) as thus:
MACT No. 90/21 Page. 16 of 41 Hemkant Kaushik Vs Upender Singh & Ors "42 We therefore hold that the multiplier to be used should be as mentioned in Column (4) of the table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie) which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years,) reduced by one unit for every years that is M-17 for 26 to 30 years, M-16 for 31 to 35 years , M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M -13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51- 55 years, M-9 for 56 to 60 years ,M-7 for 61 to 65 years and M- 5 for 66 to 70 years."
36.Further, in terms of the mandate of Rajesh Tyagi v Jaibir Singh FAO 842/2003, which is the cause célèbre qua cases pertaining to motor accident claims, the claimant filed Form XIII of the Scheme for Motor Accident Claims qua compensation under various heads which have been elucidated in the paragraphs hereafter..
ii. Monthly Income of the deceased:
37. PW-1 in his affidavit in chief stated that his wife was imparting tuition and was earning about Rs.20,000/- per month. In the calculation sheet filed on record the petitioner has claimed income of the deceased as Rs.18,797/- as per skilled minimum wages in Delhi.
38.In the present case, the petitioner has failed to place on record any documents to show the income of the deceased from tuition. In such circumstances, to calculate the notional income of the deceased who was a house wife, it would be relevant to refer to MACT No. 90/21 Page. 17 of 41 Hemkant Kaushik Vs Upender Singh & Ors the observations of the Hon'ble Supreme Court of India in the case titled as Kirti v. Oriental Insurance Co. Ltd., (2021) 2 SCC 166 which are as under:
33. Apart from the above, scholarship around this issue could provide some guidance as to other methods to determine the notional income for a homemaker. [See Ann Chadeau, "What is Households' Non-Market Production Worth", OECD ECONOMIC STUDIES No. 18 (1992); Also see United Nations Economic Commission for Europe, "Guide on Valuing Unpaid Household Service Work" (2017).] Some of these methods were highlighted by a Division Bench of the Madras High Court in Deepika [National Insurance Co.
Ltd. v. Deepika, 2009 SCC OnLine Mad 828] which held as follows : (SCC OnLine Mad para 10) "10. The Second Schedule to the Motor Vehicles Act gives a value to the compensation payable in respect of those who had no income prior to the accident and for a spouse, it says that one-third of the income of the earning surviving spouse should be the value. Exploration on the internet shows that there have been efforts to understand the value of a homemaker's unpaid labour by different methods. One is, the opportunity cost which evaluates her wages by assessing what she would have earned had she not remained at home viz. the opportunity lost. The second is, the partnership method which assumes that a marriage is an equal economic partnership and in this method, the homemaker's salary is valued at half her husband's salary. Yet another method is to evaluate homemaking by determining how much it would cost to replace the homemaker with paid workers. This is called the replacement method."
(emphasis supplied)
34. However, it must be remembered that all the above methods are merely suggestions. There can be no exact calculation or formula that can magically ascertain the true value provided by an individual gratuitously for those that they are near and dear to. The attempt of the court in such matters should therefore be towards determining, in the best manner possible, the truest approximation of the value MACT No. 90/21 Page. 18 of 41 Hemkant Kaushik Vs Upender Singh & Ors added by a homemaker for the purpose of granting monetary compensation.
35. Whichever method a court ultimately chooses to value the activities of a homemaker, would ultimately depend on the facts and circumstances of the case. The court needs to keep in mind its duty to award just compensation, neither assessing the same conservatively, nor so liberally as to make it a bounty to claimants [National Insurance Co. Ltd. v. Pranay Sethi [National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680 : (2018) 3 SCC (Civ) 248 : (2018) 2 SCC (Cri) 205] ; Kajal v. Jagdish Chand [Kajal v. Jagdish Chand, (2020) 4 SCC 413 : (2020) 3 SCC (Civ) 27 : (2020) 2 SCC (Cri) 577] ].
39.The petitioner has placed on record the Aadhar card of deceased Smt. Neha Kaushik which show her address of Ballabhgarh, Haryana. No proof is placed on record to show that the deceased was working in Delhi. In such circumstances, the deceased needs to be considered as resident of Haryana for the purposes of calculating of her notional income.
40.PW-1 petitioner has placed on record the High School Certificate of deceased / Smt. Neha Kaushik. Certificate of Computer Basic Course of Tally Software is also placed on record. In view of the observations made in the case titled as Kirti v. Oriental Insurance Co. Ltd., (Supra), it would be prudent to consider the income of deceased as per the minimum wages for a skilled worker which was prevalent in Haryana at the time of accident.
41.As per Circular No. IR-2/2021/12771-913/dated 15.06.2021 issued by the Office of the Commissioner, (Labour), Haryana, MACT No. 90/21 Page. 19 of 41 Hemkant Kaushik Vs Upender Singh & Ors the minimum wages in the category of skilled worker was Rs.11,794/- p.m. at that relevant juncture. Thus, the monthly income of the deceased is quantified as Rs. 11,794/-.
iii. Future prospects:
42.To factor into account future prospects, it would be apt to refer to National Insurance Co Ltd v Pranay Sethi & Ors. (2017) 16 SCC 680 wherein it was laid down as thus:
"59. In view of the aforesaid analysis, we proceed to record our conclusions:
59.3 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.
59.4 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. 59.5 For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paras 30 to 32 of Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] which we have reproduced hereinbefore.
59.6 The selection of multiplier shall be as indicated in the Table in Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 read with para 42 of that judgment MACT No. 90/21 Page. 20 of 41 Hemkant Kaushik Vs Upender Singh & Ors 59.7 The age of the deceased should be the basis for applying the multiplier.
59.8 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."
43.The Hon'ble Supreme Court of India in the case titled as Kirti v. Oriental Insurance Co. Ltd., (Supra) has also emphasized that future prospects needs to be considered in case of house wife also as it is component or just compensation. The relevant extract is reproduced blow:-
40. When it comes to the second category of cases, relating to notional income for non-earning victims, it is my opinion that the above principle applies with equal vigour, particularly with respect to homemakers. Once notional income is determined, the effects of inflation would equally apply.
Further, no one would ever say that the improvements in skills that come with experience do not take place in the domain of work within the household. It is worth noting that, although not extensively discussed, this Court has been granting future prospects even in cases pertaining to notional income, as has been highlighted by my learned Brother, Surya Kant, J., in his opinion (Hem Raj v. Oriental Insurance Co. Ltd. [Hem Raj v. Oriental Insurance Co. Ltd., (2018) 15 SCC 654 : (2019) 1 SCC (Civ) 293 : (2019) 2 SCC (Cri) 864] ; Sunita Tokas v. New India Insurance Co. Ltd. [Sunita Tokas v. New India Insurance Co. Ltd., (2019) 20 SCC 688 : (2020) 4 SCC (Cri) 436] ).
41.5. The granting of future prospects, on the notional income calculated in such cases, is a component of just compensation.
MACT No. 90/21 Page. 21 of 41 Hemkant Kaushik Vs Upender Singh & Ors
44.To determine the age of the deceased, the claimants has filed on record the Aadhar Card which shows date of birth of the deceased as 10.05.1995. Deceased was 25 years and 09 months old on the date of death. As per mandate in Sarla Verma (Supra) and Pranay Sethi (Supra), no future prospects is available for a person having age more than 40 years. Therefore, 40% of the notional income is considered towards the future prospects i.e. Rs. 4,717/-.
iv. Personal expenses of the deceased:
45.The Expenses incurred by the deceased on herself are deducted while calculating the loss of dependency. To calculate the personal expenses, recourse can be had to the following instructions of Sarla Verma (supra) which were approved by the Constitutional Bench in Pranay Sethi(supra):
"30.Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra [(1996) 4 SCC 362] , the general practice is to apply standardised deductions. Having considered several subsequent decisions of this Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one- third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceeds six.
31.Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event MACT No. 90/21 Page. 22 of 41 Hemkant Kaushik Vs Upender Singh & Ors the contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependent on the father.
32.Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where the family of the bachelor is large and dependent on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third."
46.As per financial statement given by PW-1 Mr. Hemkant Kaushik, deceased is survived by her husband. Ld. counsel for petitioner clarified that deceased Smt. Neha Kaushik was not having any children from her wedlock and her husband is the sole surviving member. Accordingly, in view of the mandate of Sarla Verma (supra) the deductions towards personal and living expenses is considered as 50 percent.
47. Thus, the net deduction in the present case is (Rs.11,794 + 4,717 = Rs. 16,511 = divided by 1/2 i.e. Rs. 8,255/-.
v. Monthly & Annual Loss of dependency:
48.The monthly loss of dependency would be Rs.8,256/-. The annual loss of dependency Rs. 8,256/- X 12 = Rs. 99,072/-.
MACT No. 90/21 Page. 23 of 41 Hemkant Kaushik Vs Upender Singh & Ors vi. Total Loss of Dependency:
49.Since the deceased was 25 years and 09 months old, the applicable multiplier in terms of the verdict of Sarla Verma(supra) is 18. The total loss of dependency is thus Rs.99,072 X 18 = Rs. 17,83,296/-.
vii. Other Heads:
50.In Sarla Verma (supra) it was also laid down that after calculating the 'Loss of Dependency', certain amounts were to be added under conventional heads such as loss of estate, loss of consortium etc. The relevant paragraphs of the judgment are extracted hereunder:
"Thereafter, a conventional amount in the range of Rs 5000 to Rs 10,000 may be added as loss of estate. Where the deceased is survived by his widow, another conventional amount in the range of 5000 to 10,000 should be added under the head of loss of consortium. But no amount is to be awarded under the head of pain, suffering or hardship caused to the legal heirs of the deceased.
The funeral expenses, cost of transportation of the body (if incurred) and cost of any medical treatment of the deceased before death (if incurred) should also be added."
51.The amount qua the above heads were further quantified in Pranay Sethi(supra), which clarified as thus:
"52. As far as the conventional heads are concerned, we find it difficult to agree with the view expressed in Rajesh [Rajesh v. Rajbir Singh, (2013) 9 SCC 54 : (2013) 4 SCC (Civ) 179 : (2013) 3 SCC (Cri) 817 : (2014) 1 SCC (L&S) 149] . It has granted Rs 25,000 towards funeral expenses, Rs 1,00,000 towards loss of consortium and Rs 1,00,000 towards loss of care and guidance for minor children. The head relating MACT No. 90/21 Page. 24 of 41 Hemkant Kaushik Vs Upender Singh & Ors to loss of care and minor children does not exist. Though Rajesh [Rajesh v. Rajbir Singh, (2013) 9 SCC 54 :
(2013) 4 SCC (Civ) 179 : (2013) 3 SCC (Cri) 817 : (2014) 1 SCC (L&S) 149] refers to Santosh Devi [Santosh Devi v. National Insurance Co. Ltd., (2012) 6 SCC 421 :
(2012) 3 SCC (Civ) 726 : (2012) 3 SCC (Cri) 160 : (2012) 2 SCC (L&S) 167] , it does not seem to follow the same. The conventional and traditional heads, needless to say, cannot be determined on percentage basis because that would not be an acceptable criterion. Unlike determination of income, the said heads have to be quantified. Any quantification must have a reasonable foundation. There can be no dispute over the fact that price index, fall in bank interest, escalation of rates in many a field have to be noticed. The court cannot remain oblivious to the same. There has been a thumb rule in this aspect. Otherwise, there will be extreme difficulty in determination of the same and unless the thumb rule is applied, there will be immense variation lacking any kind of consistency as a consequence of which, the orders passed by the tribunals and courts are likely to be unguided. Therefore, we think it seemly to fix reasonable sums. It seems to us that 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 principle of revisiting the said heads is an acceptable principle. But the revisit should not be fact-centric or quantum-centric. We think that it would be condign that the amount that we have quantified should be enhanced on percentage basis in every three years and the enhancement should be at the rate of 10% in a span of three years. We are disposed to hold so because that will bring in consistency in respect of those heads."
52.The above verdict was passed in the year 2017. Almost eight years have elapsed, and therefore the above heads would be enhanced at the rate of 20%.
viii. Medical Expenses:
53.The petitioner has placed on record Ex. PW 1/14 that are medical documents showing the expenses incurred on MACT No. 90/21 Page. 25 of 41 Hemkant Kaushik Vs Upender Singh & Ors treatment. The said documents remained unrebutted. Accordingly expenditure towards medical treatment is considered as Rs.19,249/-.
ix. Compensation for Loss of Consortium:
54.The concept of consortium was expounded in Magnum General Insurance Co Ltd v Nanu Ram 2018 18 SCC 130 in the following words:
"21.A Constitution Bench of this Court in Pranay Sethi [National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680 : (2018) 3 SCC (Civ) 248 : (2018) 2 SCC (Cri) 205] dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is loss of consortium. In legal parlance, "consortium" is a compendious term which encompasses "spousal consortium", "parental consortium", and "filial consortium". The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse : [Rajesh v. Rajbir Singh, (2013) 9 SCC 54.
21.1 Spousal consortium is generally defined as rights pertaining to the relationship of a husband-wife which allows compensation to the surviving spouse for loss of "company, society, cooperation, affection, and aid of the other in every conjugal relation". [Black's Law Dictionary (5th Edn., 1979).] 21.2 Parental consortium is granted to the child upon the premature death of a parent, for loss of "parental aid, protection, affection, society, discipline, guidance and training. 21.3 Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit.
MACT No. 90/21 Page. 26 of 41 Hemkant Kaushik Vs Upender Singh & Ors 22 .Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions world-over have recognised that the value of a child's consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensation for loss of the love, affection, care and companionship of the deceased child.
23. The Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, in cases of genuine claims. In case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of filial consortium. Parental consortium is awarded to children who lose their parents in motor vehicle accidents under the Act. A few High Courts have awarded compensation on this count [ Rajasthan High Court in Jagmala Ram v. Sohi Ram, 2017 SCC OnLine Raj 3848 : (2017) 4 RLW 3368; Uttarakhand High Court in Rita Rana v. Pradeep Kumar, 2013 SCC OnLine Utt 2435 : (2014) 3 UC 1687; Karnataka High Court in Lakshman v. Susheela Chand Choudhary, 1996 SCC OnLine Kar 74 : (1996) 3 Kant LJ 570] . However, there was no clarity with respect to the principles on which compensation could be awarded on loss of filial consortium.
24. The amount of compensation to be awarded as consortium will be governed by the principles of awarding compensation under "loss of consortium" as laid down in Pranay Sethi [National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680 : (2018) 3 SCC (Civ) 248 : (2018) 2 SCC (Cri) 205] . In the present case, we deem it appropriate to award the father and the sister of the deceased, an amount of Rs 40,000 each for loss of filial consortium."
55.The deceased is survived by her husband and there is no other legal heir. Thus, on the basis of the above verdict and mandated in Pranay Sethi'(Supra), the compensation for Consortium is hereby quantified as Rs 48,400/-.
MACT No. 90/21 Page. 27 of 41 Hemkant Kaushik Vs Upender Singh & Ors x. Compensation for Loss of Estate:
56.On the basis of the above verdict, the compensation for loss of estate is hereby quantified as Rs 18,150/-.
xi. Compensation towards Funeral Expenses:
57.On the basis of the above verdict, the compensation of funeral expenses is hereby quantified as Rs 18,150/-.
xii. Total Compensation:
58. Thus, the total amount of compensation to be awarded is calculated as follows:-
Sr. No. Head Amount
1. Total loss of dependency 17,83,296/-
2. Medical Expenses 19,249/-
3. Compensation for Loss of 48,400/-
Consortium
4. Compensation for Loss of Estate 18,150/-
5. Compensation towards Funeral 18,150/-
Expenses
6. Total Compensation Rs. 18,87,245/-
(c) Issue No.3: Relief.
i. Amount of Award:
59.Thus, the claimant is awarded as sum of Rs.18,87,245/- along with 9% interest per annum from the date of filing of claim MACT No. 90/21 Page. 28 of 41 Hemkant Kaushik Vs Upender Singh & Ors petition. The rate of interest has been calculated in terms of the succeeding paragraphs.
ii. Rate of Interest:
60.It was contended by Ld Counsel for the respondent insurance company that the amount of interest ought to at @7.5%, in accordance with the general prevalent practice in Courts. However, Ld Counsel for the claimant sought 9% as the rate of interest.
61.In order to adjudicate these rival claims, recourse can be had to Erudhaya Priya v State Transport Corporation 2020 SCC OnLine SC 601 wherein the aspect of rate of interest was categorically enunciated as thus:
(c) The third and the last aspect is the interest rate claimed as 12% "15.In respect of the aforesaid, the appellant has watered down the interest rate during the course of hearing to 9% in view of the judicial pronouncements including in the Jagdish case (supra). On this aspect, once again, there was no serious dispute raised by the learned counsel for the respondent once the claim was confined to 9% in line with the interest rates applied by this Court"
62.Ergo, the amount of compensation/award amount will be payable by the respondent insurance company with simple interest @ 9% p.a from the date of filing of the claim petition till actual realisation. The date of filing of petition is 18.08.2021 MACT No. 90/21 Page. 29 of 41 Hemkant Kaushik Vs Upender Singh & Ors therefore the amount of Interest is calculated at @ 9 % from the date of filing of petition i.e. Rs.7,92,642/- for a period of 56 months. Thus, the total amount of award is Rs.26,79,887/-.
63.It is also clarified that in case the interest of petitioner was stopped or excluded during the present inquiry proceedings, same is liable to be adjusted from the total interest calculated on the Award amount. Similarly, amount awarded and released as interim Award, if any, during pendency of the case, be deducted from the total compensation.
V. DEPOSIT OF AWARD& RELEASE/APPORTIONMENT i. Deposit of Award:
64.In terms of the mandate of order dated 08.01.2021 in Rajesh Tyagi (supra) the respondent Insurance Company/driver/owner shall deposit the award amount or transfer the same by RTGS/NEFT/IMPS directly to the bank account of the Motor Accident Claims Tribunal in UCO Bank, Patiala House Courts within 30 days of the award. The respondent(s) held liable to pay compensation by the Claims Tribunal shall give notice of deposit of the compensation amount to the claimant(s) and shall file a compliance report with the Claims Tribunal with respect to the deposit of the compensation amount within 15 days of the deposit with the interest upto the date of notice of deposit to the claimant(s) with a copy to their counsel.
MACT No. 90/21 Page. 30 of 41 Hemkant Kaushik Vs Upender Singh & Ors RELEASE
65.As per financial statement given by PW-1 Mr. Hemkant Kaushik, deceased is survived by her husband only. Ld. counsel for petitioner clarified that deceased Smt. Neha Kaushik was not having any children from her wedlock and her husband is the sole surviving member.
66.In the present matter, Rs.6,79,887/- (Rupees Six Lakhs Seventy Nine Thousand Eight Hundred Eighty Seven Only) out of the award amount be released immediately to Mr. Hemkant Kaushik (husband of the deceased) in the bank account through electronic mode to be opened near the place of their residence, as directed vide order dated 18.08.2021.
67.The remaining of the awarded amount i.e. Rs.20,00,000/-
(Rupees Twenty Lakhs Only) be invested and deposited in 60 monthly fixed deposits receipts (FDR) of equal amounts for a period of 60 months as per Motor Accident Claims Annuity Deposits Schemes in favour of Mr. Hemkant Kaushik, husband of the deceased.
68.The Nodal officer of the bank shall ensure disbursement of the award within 3 weeks of receipt thereof by email or otherwise.
69.The disbursement to the claimant is, however, subject to the addition of future interest till deposit proportionately and also deduction of proportionate tax on the interest amount or amount of interim award, if any, to/from his share.
MACT No. 90/21 Page. 31 of 41 Hemkant Kaushik Vs Upender Singh & Ors ii. Disbursement of the award amount & protection thereof:
70.The amount of award shall be disbursed through the Motor Accident Claims Tribunal Annuity Deposit (MACAD) Scheme formulated vide order dated 01.05.2018 passed in Rajesh Tyagi(supra). 21 banks, including UCO Bank, is implementing the MACAD scheme.
71.Further, to protect the award amount, the entire amount of compensation is not being released forthwith to the claimant, and part of the compensation amount has been directed to be kept in fixed deposits in a phased manner. Further, the following conditions are hereby reiterated and being imposed upon the concerned bank with respect to the fixed deposits:
(a) The bank shall not permit any joint names to be added in the savings bank account or MACAD scheme account of claimant i.e. the bank account of claimant shall be individual account and not a joint account.
(b) The original fixed deposits shall be retained by the UCO Bank, PHC, New Delhi in safe custody. However, the statement containing FDR numbers, amounts, dates of maturity and maturity amounts shall be furnished by the said bank to the claimant and the above amount shall be released in account of claimant by the Manager, UCO Bank, PHC, ND through RTGS/NEFT/or any other electronic mode.
MACT No. 90/21 Page. 32 of 41 Hemkant Kaushik Vs Upender Singh & Ors
(c) The monthly interest be credited by Electronic Clearing System (ECS) in the saving bank account of the claimant near the place of his residence.
(d) The maturity amount of the FDR(s) on monthly basis net of TDS be credited by Electronic Clearing System (ECS) in the above account of the claimant.
(e) No loan, advance or withdrawal or pre-mature discharge be allowed on the MACAD without permission of the Court.
(f) The concerned bank shall not 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 MACT No. 90/21 Page. 33 of 41 Hemkant Kaushik Vs Upender Singh & Ors passbook(s) of the claimant(s) is sufficient compliance of clause above.
VI. LIABILITY
72.All the respondents are jointly and severely liable to pay compensation. The offending vehicle was insured and the fact of the insurance is undisputed. The company has taken a plea that the bike driver was not having any driving license. That pleas is not relevant in a compensation case in respect of the pillion rider. Moreover, the law in this regard is settled. Even it is presumed that biker was not having any driving license, it is separate offence for which the biker can be prosecuted. It does not dilute rash driving on the part of insured / offending vehicle. Reference in this regard can be made in the case titled as Mohd. Siddique v. National Insurance Co. Ltd., (2020) 3 SCC 57, the relevant extract is reproduced here-in-under:-
12. But the above reason, in our view, is flawed. The fact that the deceased was riding on a motorcycle along with the driver and another, may not, by itself, without anything more, make him guilty of contributory negligence. At the most, it would make him guilty of being a party to the violation of the law.
Section 128 of the Motor Vehicles Act, 1988, imposes a restriction on the driver of a two-wheeled motorcycle, not to carry more than one person on the motorcycle. Section 194-C, inserted by Amendment Act 32 of 2019, prescribes a penalty for violation of safety measures for motorcycle drivers and pillion riders. Therefore, the fact that a person was a pillion rider on a motorcycle along with the driver and one more person on the pillion, may be a violation of the law. But such violation by itself, without anything more, cannot lead to a finding of contributory negligence, unless it is established that his very act MACT No. 90/21 Page. 34 of 41 Hemkant Kaushik Vs Upender Singh & Ors of riding along with two others, contributed either to the accident or to the impact of the accident upon the victim. There must either be a causal connection between the violation and the accident or a causal connection between the violation and the impact of the accident upon the victim. It may so happen at times, that the accident could have been averted or the injuries sustained could have been of a lesser degree, if there had been no violation of the law by the victim. What could otherwise have resulted in a simple injury, might have resulted in a grievous injury or even death due to the violation of the law by the victim. It is in such cases, where, but for the violation of the law, either the accident could have been averted or the impact could have been minimised, that the principle of contributory negligence could be invoked. It is not the case of the insurer that the accident itself occurred as a result of three persons riding on a motorcycle. It is not even the case of the insurer that the accident would have been averted, if three persons were not riding on the motorcycle. The fact that the motorcycle was hit by the car from behind, is admitted. Interestingly, the finding recorded by the Tribunal that the deceased was wearing a helmet and that the deceased was knocked down after the car hit the motorcycle from behind, are all not assailed. Therefore, the finding of the High Court that 2 persons on the pillion of the motorcycle, could have added to the imbalance, is nothing but presumptuous and is not based either upon pleading or upon the evidence on record. Nothing was extracted from PW 3 to the effect that 2 persons on the pillion added to the imbalance.
13. Therefore, in the absence of any evidence to show that the wrongful act on the part of the deceased victim contributed either to the accident or to the nature of the injuries sustained, the victim could not have been held guilty of contributory negligence. Hence, the reduction of 10% towards contributory negligence, is clearly unjustified and the same has to be set aside.
73.The insurance company is liable to pay award amount to the petitioners. Respondent no.3 being insurer of offending vehicle, is directed to deposit the award amount with UCO Bank, Patiala House Court Branch, along with interest @ 9% per annum from MACT No. 90/21 Page. 35 of 41 Hemkant Kaushik Vs Upender Singh & Ors the date of filing of claim petition by RTGS/NEFT/IMPS in bank account being maintained in the above said bank in name of the Motor Accident Claims Tribunal within 30 days from today, failing which it is liable to pay interest at the rate of 9% per annum for the period of delay. In case even after lapse of 90 days from today, respondent no. 2 fails to deposit this compensation with interest, in that event, in light of judgment of the Hon'ble High Court of Delhi passed in the case of New India Assurance Company Limited Vs. Kashmiri Lal 2007 ACJ 688, this compensation shall be recovered by attaching the bank account of respondent no. 2 with a cost of Rs.5,000/-.
74.The respondent no. 3 shall inform the petitioner and his counsel that the awarded amount has been deposited so as to facilitate him to collect the same.
VII. SUMMARY OF COMPUTATION OF AWARD AMOUNT IN CASES OF DEATH
75.Since this is a case pertaining to death, particulars of Form-XV of the Scheme For Motor Accidents Claims Formulated by the Delhi High Court in terms of order dated 08.01.2021 in Rajesh Tyagi (supra) are as under:
1. Date of Accident 09.03.2021
2. Name of the deceased Smt. Neha Kaushik
3. Age of the deceased 25 years 09 months MACT No. 90/21 Page. 36 of 41 Hemkant Kaushik Vs Upender Singh & Ors
4. Occupation of the deceased House wife
5. Income of the deceased Rs. 11,794/-
6. Name, Age and relationship of legal representatives of the deceased:
S.NO NAME AGE RELATION
1. Sh. Hemkant Kaushik 32 Husband
COMPUTATION OF COMPENSATION
S.No. Heads Awarded by the
Claims Tribunal
7. Income of the deceased (A) Rs. 11,794/-
8. Add: Future Prospects (B) Rs.4,717/-
9. Less: Personal expenses of the Rs. 8,255/-
deceased (C)
10. Monthly loss of dependency Rs. 8,256/-
[(A+B)- C = D]
11. Annual Loss of dependency (D x Rs. 99,072/-
12)
12. Multiplier (E) 18
13. Total loss of dependency (D x 12 Rs. 17,83,296/-
x E = F)
14. Medical Expenses (G) Rs.19,249/-
MACT No. 90/21 Page. 37 of 41
Hemkant Kaushik Vs Upender Singh & Ors
15. Compensation for loss of Rs 48,400/-
consortium
16. Compensation for loss of love & NA- in terms of New
affection (I) India Assurance Co v
Somwati (2020) 9
SCC 644
17. Compensation for loss of estate (J) Rs 18,150/-
18. Compensation towards funeral Rs 18,150/-
expenses (K)
19. TOTAL COMPENSATION (F + Rs.18,87,245/-
G + H + I + J + K = L)
20. Rate of Interest Awarded @9%
21. Interest amount up to the date of Rs. 7,92,642/-
award (M) (56 months)
22. Total amount including interest (L Rs. 26,79,887/-
+ M)
23. Award amount released As per para no. 66
24. Award kept in FDRs As per para no. 67
25. Mode of disbursement of the Through Bank
award to the claimant(s)
26. Next date for compliance of the 25.05.2026
award
MACT No. 90/21 Page. 38 of 41
Hemkant Kaushik Vs Upender Singh & Ors
VIII. COMPLIANCE QUA PROVISIONS OF THE SCHEME
76.The particulars of Form XVII of the Scheme For Motor Accidents Claims Formulated by the Delhi High Court, in terms of order dated 08.01.2021 in Rajesh Tyagi (supra) are as hereunder:
1. Date of the accident 09.03.2021
2. Date of filing of Form I- First Not filed as accident took place Accident Report (FAR) out of Delhi and claim petition is filed by legal heirs.
3. Date of delivery of Form-II to the Same as above.
victim(s)
4. Date of receipt of Form-III from the Same as above.
Driver
5. Date of receipt of Form-IV from the Same as above owner
6. Date of filing of the Form-V- Same as above Interim Accident Report (IAR)
7. Date of receipt of Form-VIA and Same as above Form VIB from the Victim (s)
8. Date of filing of Form-VII-Detailed Same as above Accident Report (DAR)
9. Whether there was any delay or DAR not filed.
deficiency on the part of the Investigating Officer? If so, whether any action/direction warranted?
10. Date of appointment of the Not given Designated Officer by the Insurance Company.
11. Whether the Designated Officer of No MACT No. 90/21 Page. 39 of 41 Hemkant Kaushik Vs Upender Singh & Ors the Insurance Company submitted his report within 30 days of the DAR?
12. Whether there was any delay or No deficiencies on the part of the Designated Officer of the Insurance Company? If so, whether any action/direction warranted?
13. Date of response of the Matter was contested by the petitioner(s) of the offer of the Insurance Company. Insurance Company.
14. Date of the Award 22.04.2026.
15. Whether the petitioner(s) were Yes directed to open savings bank account(s) near their place of residence?
16. Date of order by which petitioner(s) 18.08.2021 were 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 petitioner (s) and make an endorsement to this effect on the passbook(s).
17. Date on which the petitioner(s) Not furnished. Directions issued.
produced the passbook of their savings bank account near the place of their residence along with the endorsement, PAN Card and Adhaar Card?
18. Permanent Residential Address of As mentioned above the petitioner(s) MACT No. 90/21 Page. 40 of 41 Hemkant Kaushik Vs Upender Singh & Ors
19. Whether the petitioner(s) savings bank account(s) is near his place of residence?
20. Whether the petitioner(s) were Yes.
examined at the time of passing of the award to ascertain his/their financial condition?
77.Further, in terms of the directions given vide order dated 08.01.2021 in Rajesh Tyagi (supra), the Ahlmad shall send a certified copy of this award to the concerned Criminal Court and to the Delhi State Legal Services Authority through e-mail. Copy of the award be also sent to the bank concerned. The Nazir is directed to maintain the record in Form XVIII as per the directions given in the above case.
78.File be consigned to record room after completion of necessary formalities. Separate file be prepared for compliance report and be put up on 25.05.2026. Digitally signed by Abhilash Malhotra Abhilash Date:
Malhotra 2026.04.21 15:39:03 Announced in the open court +0530 on 22.04.2026 (Dr. Abhilash Malhotra) Judge/PO, MACT-02, New Delhi/22.04.2026 DLND010044652021 MACT No. 90/21 Page. 41 of 41 Hemkant Kaushik Vs Upender Singh & Ors