Delhi District Court
Kavita & Ors., Jasram, Ritesh And Shyam ... vs . Swarn Singh & Anr. on 28 July, 2021
MACP No. 5193/16
Kavita & Ors., Jasram, Ritesh and Shyam (four claims) Vs. Swarn Singh & Anr.
IN THE COURT OF SH. DEVENDER KUMAR JANGALA,
PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNAL,
ROHINI COURTS, DELHI
MAC Petition No. 5193/16
Kavita & Ors. Vs. Swarn Singh & Anr.
1. Smt.Kavita Chauhan ..... Widow
W/o Sh. Ashok Chauhan
2. Mr. Monti Chauhan
S/o Late Sh. Ashok Chauhan
3. Mr. Lovely Chauhan
S/o Late Sh. Ashok Chauhan
4. Kumari Tanu Chauhan
D/o Late Sh. Ashok Chauhan
(Petitioner no.4 being minor through her mother and
natural guardian petitioner No. 1 Smt. Kavita Chauhan)
All R/o House no. 190, Bank Wali Gali
VPO Palla, Delhi. ................Petitioners
Jasram Vs. Swarn Singh & Anr.
Sh. Jasram .... Father of deceased
S/o Sh. Nain Singh
R/o House no.322, Master Ramdhan Wali Gali
Village Palla, Delhi110036
Ritesh Vs. Swarn Singh & Anr.
Sh. Ritesh .........Injured
S/o Sh. Ram Narayan
R/o House no. 199, Bank Wali Gali,
Village Palla, Delhi.
Shyam Vs. Swarn Singh & Anr.
Sh.Shyam .........Injured
S/o Sh.Rajinder
C/o Senser Pal
R/o Bank Wali Gali,
Village Palla, Delhi.
Page no.1 of total 28
MACP No. 5193/16
Kavita & Ors., Jasram, Ritesh and Shyam (four claims) Vs. Swarn Singh & Anr.
VERSUS
1. Sh. Swarn Singh ....... Driver cum owner
S/o Late Sh. Gurdeep Singh
R/o C6/175, Lawrance Road, Keshav Puram
Delhi
2. Reliance General Insurance Company Ltd. ........ Insurer
60, Okhla Industrial Area,
PhaseIII, Opposite State Bank of India
Delhi. ...............Respondents
Date of Institution : 19.02.2013
Date of Arguments : 23.02.2021
Date of Decision : 28.07.2021
APPEARANCES: Ms. Veena Goswami, Ld.counsel for petitioners/Lrs of
deceased Sh. Ashok Chauhan.
Sh. Arvind Vats, Ld.counsel for LR of deceased Sh. Vinod Kumar and also for the injured persons Sh. Ritesh and Sh. Shyam.
Respondent no.1 driver cum owner is already exparte vide order dated 09.05.2013.
Sh. Sujit Jaiswal, Ld.counsel for insurance company.
Petition under Section 166 & 140 of M.V. Act, 1988 for grant of compensation AWARD
1. The present four claims of the claimants i.e. Lrs of deceased Ashok and Vinod Kumar and the injured persons Sh. Ritesh and Shyam are arising out of the Detailed Accident Report (DAR) filed in the FIR no.496/12, PS S. P. Badli. In the present Detailed Accident Report (DAR), the petitioners i.e. Lrs of deceased Sh.Ashok Chauhan and Vinod Kumar and the injured persons Ritesh and Shyam are seeking compensation for the fatal injuries suffered by the deceased Sh.Ashok Chauhan and Vinod Kumar and grievous injuries suffered by injured Sh.Ritesh and Shyam in the Motor Vehicular Accident which occurred on 23.12.2012 at about Page no.2 of total 28 MACP No. 5193/16 Kavita & Ors., Jasram, Ritesh and Shyam (four claims) Vs. Swarn Singh & Anr.
11.22 PM in front of Swaroop Nagar Bus Stand, Delhi, within the jurisdiction of PS S. P. Badli, Delhi involving the truck bearing registration no.RJ14GA8915(alleged offending vehicle) being driven by respondent no.1 in rash and negligent manner. Detailed Accident Report (hereinafter called DAR) filed by police, was treated as claim petition under Section 166(4) of Motor Vehicles Act, 1988 (hereinafter referred to as 'MV Act'). Thereafter the claim petitions filed by the Lrs of deceased Sh. Ashok Chauhan and Vinod Kumar were also clubbed with the DAR.
2. Brief facts of the case are that on 23.12.2012 at about 11.22 PM the deceased Sh. Ashok Chauhan alongwith his covillagers was coming back to their residence in tempo bearing no. DL1LE8228 and when they reached near Saroop Nagar Bus Stand, their tempo stopped plying. In the meantime other tempos bearing no. DL1LP2160 and DL1LS1112 of their village also came and stopped in front of them and they tried to make tempo bearing no. DLLE8228 to carry forward and for that purpose Sh. Ashok Chauhan (since deceased), Vinod (since deceased), Shyam and Ritesh (injured persons) were doing work, in the meantime one truck bearing No.RJ14GA8915 being driven in a rash and negligent manner by respondent no.1 Swarn Singh hit the tempos in a row. Due to impact of hitting the tempos, Sh. Ashok Chauhan and Sh. Vinod were crushed between the tempos and died at the spot whereas Sh. Ritesh and Shyam suffered injuries. Case vide FIR No. 496/12, under Section 279/337/304A IPC was registered against the respondent no.1 at PS S. P. Badli. The deceased and the injured persons were taken to SRHC hospital where Sh. Ashok Chauhan and Vinod were declared brought dead and the injured Ritesh and Shyam were found to have suffered grievous injuries. It is stated that the accident was caused solely due to negligence of respondent no.1 Sh. Swarn Singh who is also the registered owner of the offending vehicle. That the said vehicle was insured with respondent no.2 Reliance General Insurance Company Ltd. at the relevant time of accident.
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3. Notice of the DAR was issued to the respondents by the investigating officer. Respondents appeared in response to the notice of DAR. Respondent no.1 driver cum owner has filed reply to the DAR stating therein that on the day of the accident there was dense fog on the road and respondent was driving his vehicle slowly and observing every due care and caution but there were few trucks negligently parked at the extreme right side of the road without any parking lights and despite the due diligence of respondent no.1, his vehicle collided with the truck negligently parked on the road. That a false case has been registered against respondent no.1. It is stated that the vehicle of respondent no.1 was duly insured with respondent no.2 and respondent no.1 is having no liability. However, defence of respondent no.1 with regard to claim petition was struck off vide order dated 17.09.2013.
4. Respondent no.2 insurance company filed written statement stating therein that the petition is bad for non joinded of necessary parties as three tempos were also involved in the present accident and their drivers, owners and insurers have not been impleaded as party. That the accident took place due to wrong and negligent parking of the three tempos on the road. That the petitioners have not suffered any loss of income as the agriculture land is still in possession of claimants. That the insurance company will not be liable in case of violation of terms and conditions of insurance policy. The averments on merits are denied. It is admitted that the vehicle bearing no. RJ14GA8915 was insured with it at the time of acident. It is denied that the insurance company is liable to pay compensation.
5. From pleadings of the parties, the following issues were framed by my Ld. Predecessor vide order dated 15.10.2015:
1. Whether the deceased Ashok and Vinod suffered fatal injuries and injured Ritesh and Shyam suffered injuries in Page no.4 of total 28 MACP No. 5193/16 Kavita & Ors., Jasram, Ritesh and Shyam (four claims) Vs. Swarn Singh & Anr.
road traffic accident on 23.12.2012 at about 11.22 PM in front of Swroop Nagar Bus Stand, Delhi within the jurisdiction of PS S. P. Badli due to rashness and negligence on the part of the R1, driver of the offending vehicle who was driving the truck bearing registration no.RJ14GA8915, owned by R2 and insured with R3?
OPP
2. Whether the LRs of deceased and injured are entitled to any compensation? if so to amount and from whom? OPP
3. Relief.
6. It be noted that in the issue no.1 it has been wrongly mentioned that the offending vehicle was owned by respondent no.2 whereas respondent no.2 is the insurance company and the vehicle was owned by respondent no.1 himself. There is no respondent no.3 in the present claims. Therefore the said typographical error is corrected and be read accordingly.
7. In support of their claim, the petitioners have examined nine witnesses i.e. petitioner no.1 Smt. Kavita Chauhan as PW1, Sh. Jasram, Lr of deceased Vinod as PW2, Sh. Satish the eyewitness of the accident as PW3, Sh. Sohan Pal as PW4, Sh. Subhash Chand Tawar as PW5, injured Sh. Shyam as PW6, injured Ritesh as PW7, Dr. Deepa Dash as PW8 and Dr. Hitesh Kumar, Assistant Professor, Department of Neuro Surgery, AIIMS, Delhi as PW9. The petitioners evidence was closed vide order dated 11.09.2017. On the other hand respondent no.1 driver cum owner was proceeded exparte during the course of proceedings and respondent no.2 insurance company has not examined any witness despite opportunities and RE was closed vide order dated 11.09.2017.
8. I have already heard the arguments addressed by Ms. Veena Goswami, Ld.counsel for Lrs of deceased Sh. Ashok Chauhan, Sh. Arvind Vats, Ld.counsel for Lrs of deceased Vinod and also for the injured persons Ritesh and Page no.5 of total 28 MACP No. 5193/16 Kavita & Ors., Jasram, Ritesh and Shyam (four claims) Vs. Swarn Singh & Anr.
Shyam and Sh. Sujit Jaiswal, Ld.counsel for insurance company. I have carefully gone through the record. My findings on the issues are as under: ISSUE NO. 1(IN ALL FOUR CLAIMS).
9. In order to prove the negligence on the part of driver of offending vehicle, the testimonies of PW3 Sh. Satish, PW6 injured Sh. Shyam and PW7 injured Sh. Ritesh are relevant. They adduced evidence by way of affidavits Ex. PW3/A, Ex. PW6/A and Ex. PW7/A respectively. They deposed that the accident has taken place due to rash and negligent driving of the offending truck bearing registration no. RJ14GA8915 as he had hit the stationary tempos from behind. PW3 deposed that on the basis of his complaint the FIR no.496/12, under Section 279/337/338/304 A IPC was registered against respondent no.1 on the day of accident itself. PW3 further deposed that he alongwith other persons took the injured to SRHC Hospital. In order to prove the negligence on the part of driver of offending vehicle the petiltioners have relied upon the documents i.e. FIR, Charge sheet, site plan, mechanical inspection reports etc., filed alongwith the DAR Ex. PW1/1(colly).
10. PW3 Sh. Satish stated in the crossexamination on behalf of insurance company that at the time of accident he was standing behind tempo no. DL1LE8228 and was indicating the vehicles coming to divert. He further deposed that at the time of accident the highway was duly lighted and fog was very little. He denied the suggestion that the accident did not take place due to negligence on the part of respondent no.1. Further the PW6 Sh. Shyam and PW7 injured Ritesh have also denied the suggestion that there was no negligence on the part of respondent no.1 or that the accident took place due to wrong parking of the other vehicles.
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11. It is evident from the testimonies of PW3, PW6 and PW7 that the respondents could not impeach their testimony through litmus test of cross examination and said witnesses are found to have successfully withstood the test of crossexamination. Even otherwise, PW6 and PW7 themselves are the injured persons having sustained injuries due to the accident in question. There is no reason as to why he would depose falsely against respondent no.1. Moreover, the respondents have not led any evidence to rebut the testimony of aforesaid witness on the aspect of accident in question being caused due to rash and negligent driving of alleged offending vehicle. Thus, there is no reason to disbelieve the uncontroverted testimony of this witness made on oath.
12. It is pertinent to note that the respondent no.1/driver of aforesaid truck bearing registration no.RJ14GA8915 was the other material witness to throw light by testifying as to how and under what circumstances, the accident had taken place. However, he has preferred not to enter into the witness box. Thus, an adverse inference is liable to be drawn against him to the effect that the accident in question occurred due to rash and negligent driving of alleged truck bearing registration no.RJ14GA8915 by him.
13. Moreover, the respondent no. 1 namely Sh. Swarn Singh(accused in State case) has been charge sheeted for offences punishable U/s 279/337/338/304A IPC by the investigating agency after arriving at the conclusion on the basis of investigation carried out by it that the accident in question had occurred due to rash and negligent driving of offending truck bearing registration no.RJ14GA8915 by him. Same would also point out towards rash and negligent driving of aforesaid truck by respondent no.1.
14. Furthermore, the postmortem report of the deceased Ashok Page no.7 of total 28 MACP No. 5193/16 Kavita & Ors., Jasram, Ritesh and Shyam (four claims) Vs. Swarn Singh & Anr.
Kumar and Sh. Vinod prepared at BJRM Hospital shows that they were declared brought dead. All injuries were ante mortem in nature, fresh and could be caused by blunt force impact and they were taken to said hospital with the history of RTA, immediately after the accident in question. Further the MLC of the injured Ritesh prepared at SRHC hospital shows that he has suffered simple injuries and the MLC of the injured Shyam prepared at SRHC hospital and his subsequent treatment record shows that he has suffered grievous hurt. The said documents have also gone unchallanged on the part of respondents.
15. In view of the aforesaid discussion and the evidence which has come on record, it is held that the petitioners have been able to prove that the deceased Sh.Ashok Chauhan and Sh. Vinod sustained fatal injuries and the injured Sh.Ritesh and Sh.Shyam suffered injuries in road accident which took place on 23.12.2012 at about 11.22 PM in front of Swaroop Nagar Bus Stand, Delhi, within the jurisdiction of PS S. P. Badli, Delhi due to rash and negligent driving of the truck bearing registration no.RJ14GA8915 by respondent no.1 Sh. Swarn Singh. Thus, issue no. 1 is decided in favour of petitioners and against the respondents.
ISSUE NO. 2.
16. Section 168 of the Act enjoins the Claims Tribunal to hold an inquiry into the claim to make an award determining the amount of compensation which appears to it to be just and reasonable. It has to be borne in mind that the compensation is not expected to be a windfall or a bonanza nor it should be niggardly.
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COMPENSATION WITH RESPECT TO THE DEATH OF SH. ASHOK CHAUHAN LOSS OF DEPENDENCY
17. The claimants are the widow, two major sons and one minor daughter of deceased. The petitioner no. 1 widow of deceased appeared in witness box as PW1 and adduced evidence by way of affidavit Ex. PW1/A. She deposed in her affidavit that the deceased Sh. Ashok Chauhan was holding agriculture land of 3 acres and he was growing 34 vegetables in one season of year and the said vegetables give him income of Rs.one lac per acre every two months for six months in an year and for the remaining period, the deceased used to cultivate wheat and rice for six months which would give him income of Rs.60,000/ per acre. She further stated that the deceased was earning a sum of Rs.1,80,000/ in six months and from vegetable cultivation he was earning around Rs.9,00,000/ in other six months. She deposed that the monthly income of the deceased was around 90,000/. She also deposed that all the petitioners were financially dependent upon the deceased and he was sole bread earner of the family. In order to prove the income of the deceased the petitioners have relied upon the receipts of sale of crops Ex. PW1/4(colly). In order to prove the said receipts the petitioners have also examined PW5 Sh. Subhash Chand Tawar who deposed that he is a Commission Agent in Azadpur Mandi and running shop in the name of Giriraj Fruit Company. He also deposed that the receipts Ex. PW1/4(colly) have been issued by their firm.
18. In order to prove the income of the deceased, the petitioners have also examined PW4 Sh. Sohan Pal who adduced evidence by way of affidavit Ex. PW4/A. In his affidavit Ex. PW4/A, the PW4 has deposed on the same lines regarding income of deceased as stated by PW1 in her affidavit Ex. PW1/A. He also relied upon the sale receipts Ex. PW1/4.
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19. The petitioners have claimed that the deceased was earning a sum of Rs.90,000/ per month working as a farmer and in order to prove the income of deceased, the petitioners have also relied upon the sale receipts Ex. PW1/4(colly) and examined PW4 Sh. Sohan Pal and PW5 Sh. Subhash Chand Tawar. It be noted that except the sale receipts Ex. PW1/4(colly), the petitioners have not filed any documentary proof of income of deceased. Further, PW1 admitted in the crossexamination that her husband was not filing income tax returns. The sale receipts Ex. PW1/4(colly) are not sufficient enough to prove the earnings of the deceased without any other supporting document i.e. ITRs or bank passbook. Furthermore, the PW4 Sh. Sohan Pal has stated in his cross examination that he is also working as farmer and further stated that he is earning Rs.10,000/ to Rs. 12,000/ per month and his last ITR was for Rs.2,60,000/. The income of the deceased as claimed by the petitioners i.e. Rs.90,000/ per month appears to be much higher and I am not inclined to accept the same. Furthermore, the agriculture land is still in the possession of the petitioners which can be cultivated by them or with the help of labour. The petitioners have not filed any documentary proof of educational qualifications of the deceased. In view of aforesaid, the income of deceased is taken as minimum wages of an unskilled worker, prevalent at the time of accident i.e. on 23.12.2012, which were Rs.7254/ per month.
20. It is stated that the deceased was aged about 37 years at the time of accident. The copy of ration card Ex. PW1/8 shows the year of birth of deceased as 1976. Hence the deceased was around 37 years of age at the time of accident. Thus, the multiplier of 15 would be applicable in view of recent pronouncement made by Constitutional Bench of Apex Court in the case titled as "National Insurance Company Ltd. Vs. Pranay Sethi & Ors." passed in SLP(Civil) No. 25590/14 Page no.10 of total 28 MACP No. 5193/16 Kavita & Ors., Jasram, Ritesh and Shyam (four claims) Vs. Swarn Singh & Anr.
decided on 31.10.17.
21. Considering the fact that deceased was below 40 years of age and was doing his own business at that time, future prospects @ 40% has to be awarded in favour of petitioners in view of recent pronouncement made by Constitutional Bench of Apex Court in the case titled as "National Insurance Company Ltd. Vs. Pranay Sethi & Ors." mentioned supra, as well as in view of recent decision of Hon'ble Delhi High Court in appeal bearing MAC APP No. 798/2011 titled as "Bajaj Allianz General Insurance Company Ltd. Vs. Pooja & Ors", decided on 02.11.17.
22. It is stated that the deceased was survived by four dependents. PW1/widow of deceased has categorically deposed that all the petitioners were financially dependent upon the earnings of deceased. No evidence to the contrary has been adduced by respondents. Hence, it is held that the deceased was survived by four dependents and hence 1/4th is liable to be deducted towards personal and living expenses of deceased. Thus, the total of loss of dependency would come out to Rs.13,71,006/(rounded of Rs.13,71,000/) (Rs.7254x3/4 X 140/100 X12X 15). Hence, a sum of Rs.13,71,000/ is awarded under this head in favour of the petitioners.
LOSS OF LOVE & AFFECTION
23. After the celebrated judgment of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors. mentioned supra and recent judgment titled New India Assurance Company Limited versus Somwati & Ors., Civil Appeal no. 3093 of 2020 dated 07.09.2020 the petitioners are not entitled to be compensated under this head. Further Hon'ble Delhi High Court in appeal titled as "Bajaj Allianz General Insurance Company Ltd. Vs. Pooja & Ors", mentioned Page no.11 of total 28 MACP No. 5193/16 Kavita & Ors., Jasram, Ritesh and Shyam (four claims) Vs. Swarn Singh & Anr.
supra has been pleased to observe in para 18 of the judgment that the constitution bench decision in Pranay Sethi (supra) does not recognize any other nonpecuniary head of damages. Hence, no amount of compensation is being awarded under this head.
LOSS OF CONSORTIUM
24. In view of the judgment of Hon'ble Supreme Court in case titled as New India Assurance Company Limited versus Somwati & Ors., Civil Appeal no. 3093 of 2020, dated 07.09.2020 I am of the considered opinion that the petitioner no.1/widow of deceased, petitioners no.2 and 3 son of deceased and petitioner no.4 daughter of deceased are entitled for payment of Rs.40,000/ each towards loss of consortium. Consequently a sum of Rs.1,60,000/ is awarded to the petitioners under this head.
LOSS OF ESTATE & FUNERAL EXPENSES
25. In view of the facts and circumstances of the present case and in view of decision of Hon'ble Apex Court in the case of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors." mentioned supra, a sum of Rs. 15,000/ each is awarded in favour of petitioners on account of loss of estate and funeral expenses.
The total compensation is assessed as under:
1. Loss of dependency Rs. 13,71,000/
2. Loss of Love and affection Rs. NIL
3. Loss of Consortium Rs. 1,60,000/
3. Loss of Estate &Funeral Rs. 30,000/ Expenses Total Rs. 15,61,000/ Page no.12 of total 28 MACP No. 5193/16 Kavita & Ors., Jasram, Ritesh and Shyam (four claims) Vs. Swarn Singh & Anr.
COMPENSATION WITH RESPECT TO THE DEATH OF SH. VINOD LOSS OF DEPENDENCY
26. The claimant is the father of deceased. It is stated that the deceased Sh. Vinod was unmarried at the time of accident. The petitioner/father of deceased appeared in witness box as PW2. He adduced evidence by way of affidavit Ex. PW2/A. In his affidavit he deposed that the deceased was born on 08.07.1989 but unfortunately mother of the deceased expired in the year 1997 when the deceased Sh. Vinod was just eight years of age. He further deposed that the deceased had passed Electrician Trade from ITI securing 80% marks. That after the marriage the elder brother of deceased started living separately and all responsibility of the family came on the shoulders of the deceased and he started farming and was earning a sum of Rs.45,000/ per month. That the deceased was a successful farmer and he was awarded as SAFAL KISAN by Agricultural Department, Delhi. He deposed that he was financially dependent upon the deceased. In order to prove the income of the deceased the petitioner has relied upon the crops sale receipts Ex. PW2/1(colly). In order to prove the said receipts the petitioner has also examined PW5 Sh. Subhash Chand Tawar who deposed that he is a Commission Agent in Azadpur Mandi and running shop in the name of Giriraj Fruit Company. He also deposed that the receipts Ex. PW2/1(colly) have been issued by their firm.
27. The petitioner has claimed that the deceased was earning a sum of Rs.45,000/ per month working as a farmer and in order to prove the income of deceased the petitioner has also relied upon the crop sale receipts Ex. PW2/1(colly). It be noted that except the Crops sale receipts Ex. PW2/1(colly), the petitioners have not filed any other documentary proof of income of deceased. Further, PW2 admitted in the crossexamination that the deceased was not an Page no.13 of total 28 MACP No. 5193/16 Kavita & Ors., Jasram, Ritesh and Shyam (four claims) Vs. Swarn Singh & Anr.
income tax payee. The crops sale receipts Ex. PW2/1(colly) are not sufficient enough to prove the earnings of the deceased without any other supporting document i.e. ITRs or bank passbook. The income of the deceased as claimed by the petitioner i.e. Rs.45,000/ per month appears to be much higher and I am not inclined to accept the same. Furthermore, the agriculture land is still in the possession of the petitioner which can be cultivated by him or with the help of labour. As per material on record the deceased was 12 th pass and has done ITI in Electrician Trade. In view of aforesaid, the income of deceased is taken as minimum wages of a matriculate, prevalent at the time of accident i.e. on 23.12.2012, which were Rs.8814/ per month.
28. It is stated that the deceased was born on 08.07.1989. The copy of driving licence of deceased (which is part of DAR) shows the date of birth of deceased to be 08.07.1989. Hence the deceased was around 23 years and five months of age at the time of accident. Thus, the multiplier of 18 would be applicable in view of recent pronouncement made by Constitutional Bench of Apex Court in the case titled as "National Insurance Company Ltd. Vs. Pranay Sethi & Ors." passed in SLP(Civil) No. 25590/14 decided on 31.10.17.
29. Considering the fact that deceased was below 40 years of age and was doing his own business at that time, future prospects @ 40% has to be awarded in favour of petitioners in view of recent pronouncement made by Constitutional Bench of Apex Court in the case titled as "National Insurance Company Ltd. Vs. Pranay Sethi & Ors." mentioned supra, as well as in view of recent decision of Hon'ble Delhi High Court in appeal bearing MAC APP No. 798/2011 titled as "Bajaj Allianz General Insurance Company Ltd. Vs. Pooja & Ors", decided on 02.11.17.
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30. It is stated that the deceased was unmarried at the time of accident and the petitioner/father of deceased is only dependent. PW1/father of deceased has categorically deposed that he was financially dependent upon the earnings of deceased. No evidence to the contrary has been adduced by respondents. Since the deceased was unmarried, ½ is liable to be deducted towards persons and living expenses of deceased. Thus, the total of loss of dependency would come out to Rs.13,32,676/(rounded of Rs.13,33,000/) (Rs.8814 X1/2X140/100 X12X 18). Hence, a sum of Rs.13,33,000/ is awarded under this head in favour of the petitioners.
LOSS OF LOVE & AFFECTION
31. After the celebrated judgment of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors. mentioned supra and recent judgment titled New India Assurance Company Limited versus Somwati & Ors., Civil Appeal no. 3093 of 2020 dated 07.09.2020 the petitioners are not entitled to be compensated under this head. Further Hon'ble Delhi High Court in appeal titled as "Bajaj Allianz General Insurance Company Ltd. Vs. Pooja & Ors", mentioned supra has been pleased to observe in para 18 of the judgment that the constitution bench decision in Pranay Sethi (supra) does not recognize any other nonpecuniary head of damages. Hence, no amount of compensation is being awarded under this head.
LOSS OF CONSORTIUM
32. In view of the judgment of Hon'ble Supreme Court in case titled as New India Assurance Company Limited versus Somwati & Ors., Civil Appeal no. 3093 of 2020, dated 07.09.2020 I am of the considered opinion that the petitioner/father of deceased is entitled for payment of Rs. 40,000/ towards loss of Page no.15 of total 28 MACP No. 5193/16 Kavita & Ors., Jasram, Ritesh and Shyam (four claims) Vs. Swarn Singh & Anr.
consortium. Consequently a sum of Rs.40,000/ is awarded to the petitioners under this head.
LOSS OF ESTATE & FUNERAL EXPENSES
33. In view of the facts and circumstances of the present case and in view of decision of Hon'ble Apex Court in the case of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors." mentioned supra, a sum of Rs. 15,000/ each is awarded in favour of petitioners on account of loss of estate and funeral expenses.
The total compensation is assessed as under:
1. Loss of dependency Rs. 13,33,000/
2. Loss of Love and affection Rs. NIL
3. Loss of Consortium Rs. 40,000/
3. Loss of Estate &Funeral Rs. 30,000/ Expenses Total Rs. 14,03,000/ COMPENSATION IN RESPECT OF CLAIM OF INJURED SH. RITESH.
34. Hon'ble Delhi High Court in the matter titled as " Vinod Kumar Bitoo Vs. Roshni & Ors." passed in appeal bearing no. MAC.APP 518/2010 decided on 05.07.12, has held as under: " It is difficult to measure the pain and suffering in terms of money which is suffered by a victim on account of serious injuries caused to him in a motor vehicle accident. Since the compensation is required to be paid for pain and suffering an attempt must be made to award compensation which may have some objective relation with the pain and suffering underwent by the victim. For this purpose, the Claims Tribunal and the Courts normally consider the nature of injury; the part of the body where the injuries were sustained, surgeries, if any, underwent by the victim, confinement in the hospital and the duration of treatment".
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35. The petitioner/injured Sh.Ritesh appeared in the witness box as PW7. He adduced evidence by way of affidavit Ex. PW7/A. In his affidavit Ex. PW7/A he deposed that immediately after the accident he was taken to SRHC Hospital where his MLC was prepared and thereafter he has taken treatment from some private hospital in Rohini, Delhi and incurred a sum of Rs.75,000 per month. Alongwith the DAR the copy of MLC of injured Sh. Ritesh prepared at SRHC Hospital has been filed on record which shows that he has suffered simple injuries in the present accident. No other document regarding medical treatment of injured has been filed. In the absence of any other documentary proof the nature of injuries being suffered by the petitioner are taken as Simple. The petitioner has not filed on record any medical bills. In the absence of any original medical bills, the possibility of the treatment being taken free of cost or the reimbursement of medical bills by any other authority can not be ruled out. Further though the petitioner has claimed that at the time of accident he was working as farmer and was earning a sum of Rs.15,000/ per month. But the petitioner has not proved his avocation and loss of income by cogent evidence. However, looking at the grievous nature of injuries, suffered by the petitioner, notice can be taken to the fact that he might have suffered loss of income to some extent.
36. Considering the simple nature of injuries being suffered by petitioner, I deem it appropriate a notional sum of Rs.20,000/ to the injured towards medicines and medical treatment, loss of income, pain and suffering and also for the conveyance and special diet.
COMPENSATION IN RESPECT OF CLAIM OF INJURED SH. SHYAM.
MEDICAL EXPENSES
37. PW6 Sh. Shyam i.e. injured himself, has deposed in his evidence by way of affidavit(Ex. PW6/A) that after the accident, he was taken to Page no.17 of total 28 MACP No. 5193/16 Kavita & Ors., Jasram, Ritesh and Shyam (four claims) Vs. Swarn Singh & Anr.
SRHC Hospital where his mlc was prepared. He further stated that thereafter he was taken to Shyam Hospital, Sector19, Rohini, Delhi and he spent huge amount of Rs.1,50,000/ on his medical treatment and other expenses. He relied upon the medical treatment record Ex. PW6/1(colly). The Ocular testimony of the petitioner with regard to the injuries suffered in the present accident and regarding his medical treatment is duly supported with his medical treatment record. The medical treatment record of the petitioner shows that he remained under treatment at SRHC Hospital, IHBAS, Delhi and Ishan Hospital for a considerable period. The discharge summary of the petitioner prepared at Ishan Hospital shows that he remained amditted in the said hospital from 24.12.2012 to 25.15.2012 and he was found to have sustained fracture right I/A medial condyle of femur with fracture acromian process right. The petitioner is also stated to have suffered 28.6% permanent disability in relation to his whole body. Same is evident from the disability certificate dated 15.05.2017 Ex. PW8/1 issued by IHBAS.
38. It is relevant to note that the injured has filed on record the medical bills to the tune of Rs.21,363/ only. It is quite evident that the respondents have not disputed the authenticity and genuineness of the said medical bills during the course of inquiry. Respondents have also not led any evidence in rebuttal so as to create any doubt on the genuineness of said bills. Accordingly, a sum of Rs.21,363/ is awarded to the petitioner under this head.
LOSS OF INCOME
39. The petitioner in his affidavit Ex. PW6/A has stated that at the time of accident he was working as fater and was also selling vegetables at Azadpur Mndi and was earning a sum of Rs.10,000/ per month. He further deposed that due to the accidental injuries his life has become miserable.
Page no.18 of total 28 MACP No. 5193/16 Kavita & Ors., Jasram, Ritesh and Shyam (four claims) Vs. Swarn Singh & Anr.
40. Though the petitioner has claimed that he was earning a sum of Rs. 15,000 per month but he has not filed documentary proof of his income and avocation. The petitioner has also not filed the documentary proof of his educational qualifications. In view of aforesaid position, the income of the petitioner is taken as minimum wages of an unskilled worker prevalent at the time of accident i.e. on 23.12.2012 which were Rs.7254/.
41. The petitioner has not filed any document showing that he was advised complete bed rest for any specific period. However, it can not be overlooked that the petitioner had suffered fracture injuries. Considering the nature of injuries sustained by the petitioner and in view of the treatment record brought on record, it is presumed that he would not have been able to work at all atleast for a period of 3 months or so. Thus, a sum of Rs.21,762/(7254x 3) is awarded in favour of petitioner and against the respondent under this head..
PAIN AND SUFFERING
42. Hon'ble Delhi High Court in the matter titled as " Vinod Kumar Bitoo Vs. Roshni & Ors." passed in appeal bearing no. MAC.APP 518/2010 decided on 05.07.12, has held as under: " It is difficult to measure the pain and suffering in terms of money which is suffered by a victim on account of serious injuries caused to him in a motor vehicle accident. Since the compensation is required to be paid for pain and suffering an attempt must be made to award compensation which may have some objective relation with the pain and suffering underwent by the victim. For this purpose, the Claims Tribunal and the Courts normally consider the nature of injury; the part of the body where the injuries were sustained, surgeries, if any, underwent by the victim, confinement in the hospital and the duration of treatment".
43. Injured himself as PW6 has deposed in his evidence by way of Page no.19 of total 28 MACP No. 5193/16 Kavita & Ors., Jasram, Ritesh and Shyam (four claims) Vs. Swarn Singh & Anr.
affidavit(Ex PW6/A) that he had sustained dangerous injuries in the accident in question. As already noted above, the medical treatment record of the petitioner shows that he remained under treatment for a considerable period. Apart from this, the petitioner is also shown to have sustained permanent disability to the extent of 28.5% in relation to his whole body. Thus, he would have undergone great physical sufferings and mental shock on account of the accident in question. Keeping in view the medical treatment record of petitioner available on record and the nature of injuries suffered by him, I hereby award a sum of Rs. 50,000/ towards pain and sufferings to the petitioner.
LOSS OF GENERAL AMENITIES & ENJOYMENT OF LIFE
44. As already mentioned above, there is sufficient evidence on record to establish that the petitioner remained under treatment for a considerable period. His disability certificate would also show that he had suffered 28.5% physical impairment in relation to his whole body. Thus, he would not be able to enjoy general amenities of life after the accident in question, during rest of his life and his quality of life has been definitely affected. In view of the nature of injuries including permanent disability suffered by him and his continued treatment for considerable period, I award a notional sum of Rs. 30,000/ towards loss of general amenities and enjoyment of life to the petitioner.
CONVEYANCE, SPECIAL DIET & ATTENDANT CHARGES
45. The petitioner has failed to lead any cogent evidence on record in respect of amount incurred by him on conveyance, special diet and attendant charges. At the same time, it cannot be overlooked that the petitioner has suffered fracture injuries and consequent disability of 28.5% in relation to his whole body. Thus, he would have taken special rich protein diet for his speedy recovery and would have also incurred considerable amount towards conveyance charges while Page no.20 of total 28 MACP No. 5193/16 Kavita & Ors., Jasram, Ritesh and Shyam (four claims) Vs. Swarn Singh & Anr.
commuting to the concerned hospital as OPD patient for his regular check up & follow up during the period of his medical treatment. He would have been definitely helped by some person either outsider or from his family, to perform his daily activities as also while visiting the hospital during the course of his medical treatment. In these facts and circumstances, I hereby award a sum of Rs.10,000/ each for conveyance, special diet and attendant charges to the petitioner.
LOSS OF FUTURE INCOME
46. As already stated above, the petitioner is shown to have sustained 28.5% physical impairment in relation to his whole body. Same is quite evident from Disability Certificate dated 15.05.2017 of Medical Board of AIIMS, Delhi.
47. In order to prove the genuineness of the disability certificate the petitioner has examined PW8 Dr. Deepa Dash, Assistant Professor, Department of Neurology, AIIMS, Delhi and PW9 Dr. Hitesh Kumar, Assistant Professor, Department of Neurosurgery, AIIMS, Delhi.. They both deposed that the injured was examined by the medical Board constituted at AIIMS, Delhi for the assessment of disability and disability certificate Ex. PW8/1 was issued. They further stated that the injured was found to have suffered 25% intellectual impairment and 5% hand function impairment. His total disability was calculated to be 28.6% in relation to whole body. The testimonies of PW8 and PW9 has gone unchallanged.
48. In view of unchallanged testimonies of PW8 Dr. Deepa Dash and PW9 Dr. Hitesh Kumar, the functional disability of the petitioner is taken as 28% with regard to whole body.
49. The copy of driving licence of the injured shows his date of birth Page no.21 of total 28 MACP No. 5193/16 Kavita & Ors., Jasram, Ritesh and Shyam (four claims) Vs. Swarn Singh & Anr.
to be 10.05.1990. The date of accident is 23.12.2012. In view of said document, his age was about 22 years of age as on the date of accident. Hence, the appropriate multiplier would be 18 in view of recent pronouncement made by Constitutional Bench of Apex Court in the case titled as "National Insurance Company Ltd. Vs. Pranay Sethi & Ors.", passed in SLP(Civil) No. 25590/14 decided on 31.10.17. The monthly notional income of petitioner has been taken as Rs.7254/ per month as discussed above. Thus, the loss of monthly future income would be Rs.2031/ (Rs.7254x 28/100 ). The total loss of future income would be Rs.6,14,174/ (rounded off Rs.6,14,200/)(Rs.2031x 140/100 x 12 x18). (Reliance placed on Jagdish Vs. Mohan & Ors. (2018) 4 SCC 571 and unreported decision of Hon'ble Delhi High Court in " The New India Assurance Co. Ltd. Vs. Deepak Arora & Ors.", MAC APP No. 320/2013 decided on 28.09.18). Thus, a sum of Rs. 6,14,200/ is awarded in favour of petitioner under this head.
Thus, the total compensation is assessed as under:
1. Medical Expenses Rs. 21,363/
2. Loss of income Rs. 21,762/-
3. Pain and suffering Rs. 50,000/
4. Loss of general amenities and Rs. 30,000/ enjoyment of life
5. Conveyance, special diet and Rs. 30,000/ attendant charges
6. Loss of future income Rs. 6,14,200/-
Total Rs. 7,67,325/-
7,67,400/-
Roundedoff to Rs.
50. Now, the question which arises for determination is as to which of the respondents is liable to pay the compensation amount. Respondent no.2/insurance company has not proved any violation of terms and conditions of Page no.22 of total 28 MACP No. 5193/16 Kavita & Ors., Jasram, Ritesh and Shyam (four claims) Vs. Swarn Singh & Anr.
insurance policy. Respondent no.1/driver cum owner is principal tort feasor. Respondent no.2 being the insurer is liable to indemnify the insured. Hence, respondent no.2/insurance company is held liable to pay compensation amount. Issue no. 2 is decided accordingly.
ISSUE NO. 3 RELIEF: COMPENSATION IN RESPECT OF DEATH OF SH. ASHOK CHAUHAN
51. In view of my findings on issues no. 1 and 2(supra), I award a compensation of Rs.15,61,000/ alongwith interest @ 9% per annum in favour of petitioners/Lrs of deceased Sh. Ashok Chauhan and against the respondents w.e.f. date of filing of the petition i.e.19.02.2013 till the date of its realization(Reliance placed on judgment "Oriental Insurance Company Ltd. Vs. Sangeeta Devi & Ors bearing MAC. APP. 165/2011 decided on 22.02.2016).
COMPENSATION IN RESPECT OF DEATH OF SH. VINOD
52. In view of my findings on issues no. 1 and 2(supra), I award a compensation of Rs.14,03,000/ alongwith interest @ 9% per annum in favour of petitioner/LR of deceased Sh. Vinod and against the respondents w.e.f. date of filing of the petition i.e.19.02.2013 till the date of its realization.
COMPENSATION FOR THE INJURIES SUFFERED BY INJURED RITESH
53. I award a compensation of Rs.20,000/ alongwith interest @ 9% per annum w.e.f. date of filing of the petition i.e.19.02.2013 till the date of its realization, in favour of petitioner Sh.Ritesh and against the respondents.
COMPENSATION FOR THE INJURIES SUFFERED BY INJURED SHYAM
54. I award a compensation of Rs.7,67,400/ alongwith interest @ 9% per annum w.e.f. date of filing of the petition i.e.19.02.2013 till the date of its Page no.23 of total 28 MACP No. 5193/16 Kavita & Ors., Jasram, Ritesh and Shyam (four claims) Vs. Swarn Singh & Anr.
realization, in favour of petitioner Sh.Shyam and against the respondents APPORTIONMENT
55. Statements of petitioners/claimants/Lrs of deceased Sh. Ashok Chauhan in terms of Clause 29 MCTAP was recorded on 13.11.2017. Having regard to the facts and circumstances of the case and in view of the statements of claimants, it is hereby ordered that out of total compensation amount, the petitioners no. 2 and 3 sons have share amount of Rs.2,00,000/ each alongwith proportionate interest. Petitioner no.4 daughter shall have share amount of Rs.3,00,000/. Alongwith proportionate interest. Petitioner no.1 Smt. Kavita Chauhan/widow shall be entitled to remaining share amount of Rs.8,61,000/ alongwith proportionate interest.
56. Out of share amount of petitioner no.1 Smt. Kavita Chauhan, a sum of Rs.1,00,000/ (Rupees One Lakh Only) is directed to be immediately released to her through her Saving Bank Account No.30797681635 with SBI having IFSC Code nno. SBIN0006817 and remaining amount is directed to be kept in the form of FDRs in the multiples of Rs. 10,000/ each for one month, two months, three months and so on and so forth having cumulative interest.
57. Out of share amount of petitioner no.2 and 3, a sum of Rs.50,000/( Rupees Fifty Thousand Only) each is directed to be immediately released to them through their respective Saving Bank Account i.e. A/c no. 37572790300 with SBI, IFSC code no. SBIN0006817 of petitioner Monti Chauhan and A/c no. 33874294116 with SBI, IFSC code no. SBIN0006817 of petitioner Lovely Chauhan and remaining amount is directed to be kept in the form of FDRs in the multiples of Rs. 10,000/each for one month, two months, three Page no.24 of total 28 MACP No. 5193/16 Kavita & Ors., Jasram, Ritesh and Shyam (four claims) Vs. Swarn Singh & Anr.
months and so on and so forth having cumulative interest.
58. Entire share amount of petitioner no.4 (minor) be kept in FDR till she attains 18 years of age and thereafter a sum of Rs.50,000/ is ordered to be released to her through her saving bank account i.e. A/c no.37184074581 with SBI, IFSC code no. SBIN0006817 and remaining amount is directed to be kept in the form of FDRs in the multiples of Rs.10,000/ each for one month, two months, three months and so on and so forth having cumulative interest. The petitioner no.1/mother of claimant is at liberty to withdraw the monthly interest on the FDR in the name of minor till she attain 18 years of age, in order to meet her educational and other expenses.
59. Out of share amount of petitioner Sh. Jasram/LR of deceased Sh. Vinod, a sum of Rs.3,00,000/ (Rupees Three Lacs Only) is directed to be immediately released to him through his Saving Bank Account No.37560676168 with SBI village Palla Branch and remaining amount is directed to be kept in the form of FDRs in the multiples of Rs. 10,000/ each for one month, two months, three months and so on and so forth having cumulative interest.
60. entire compensation amount of petitioner Sh. Ritesh alongwith interest be released to him through his savings bank account no.37555447001 with SBI having IFSC Code no. SBIN0006817.
61. Out of compensation amount of injured Sh. Shyam, a sum of Rs.1,00,000/ (Rupees One Lakh Only) is directed to be immediately released to him through his Saving Bank Account No.37561330005 with SBI having IFSC code no. SBIN0006817 and remaining amount is directed to be kept in the form of FDRs in the multiples of Rs. 10,000/ each for one month, two months, three Page no.25 of total 28 MACP No. 5193/16 Kavita & Ors., Jasram, Ritesh and Shyam (four claims) Vs. Swarn Singh & Anr.
months and so on and so forth having cumulative interest.
62. All the FDRs to be prepared as per aforesaid directions, shall be subject to the following conditions:
(a) The Bank shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the claimant(s) i.e. the savings bank account(s) of the claimant(s) shall be an individual savings bank account(s) and not a joint account(s).
(b) The original fixed deposit shall be retained by the bank in safe custody. However, the statement containing FDR number, FDR amount, date of maturity and maturity amount shall be furnished by bank to the claimant(s).
(c) The monthly interest be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant(s) near the place of their residence.
(d) The maturity amounts of the FDR(s) be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant(s) near the place of their residence.
(e) No loan, advance, withdrawal or premature discharge be allowed on the fixed deposits without permission of the Court.
(f) The concerned bank shall not to 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 alongwith the duly signed and stamped by the bank official on the passbook(s) of the claimant(s) is sufficient compliance of clause(g) above.
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(i) The petitioner is directed to open a Motor Accident Claims Annuity (Term) Deposit Account (MACAD) in terms of order dated 07.12.2018 of Hon'ble Justice J.R. Midha in case titled as Rajesh Tyagi and Others Vs. Jaibir Singh and Others F.A.O No. 842/03 as per clause 31 of MCTAP and form VIII titled as Motor Accident Claims Annuity Deposit (MACAD) Scheme as directed in the said order.
(j) Concerned Manager, SBI, Rohini Court branch is further directed to disburse the FD amount in Motor Accident Claims Annuity Deposit (MACAD) Scheme account as directed by Hon'ble Delhi High Court vide order dated 07.12.18, on completing necessary formalities as per rules.
63. Respondent no.2, insurance company is directed to deposit the award amount with SBI, Rohini Courts branch within 30 days as per above order, failing which it shall be liable to pay interest @ 12% p.a for the period of delay. Concerned Manager, SBI, Rohini Court Branch is directed to transfer the respective share amounts directed to be released immediately to aforesaid petitioners in their aforesaid saving bank accounts mentioned supra, on completing necessary formalities as per rules. He be further directed to keep the said amount in fixed deposit in its own name till the claimants approach the bank for disbursement so that the award amount starts earning interest from the date of clearance of the cheques. Copy of the award be given dasti to the petitioners and respondent no.3/insurance company for compliance. Copy of this award alongwith one photograph each, specimen signatures, copy of bank passbooks and copy of residence proof of the petitioners, be sent to Nodal Officer of SBI, Rohini Court, Branch, Delhi for information and necessary compliance. Form IV A & Form V in terms of MCTAP are annexed herewith as AnnexureA. Copy of order be also sent to concerned M.M and DLSA as per clause 31 and 32 of MCTAP.
Announced in the open Court on 28.07.2021 (DEVENDER KUMAR JANGALA) Judge MACT2 (North) Rohini Courts, Delhi Page no.27 of total 28 MACP No. 5193/16 Kavita & Ors., Jasram, Ritesh and Shyam (four claims) Vs. Swarn Singh & Anr.
Certified that above award contains 28 pages and each page is signed by Digitally signed me. DEVENDER by DEVENDER KUMAR KUMAR JANGALA Date: 2021.07.29 JANGALA 12:23:29 +0530 (DEVENDER KUMAR JANGALA) Judge MACT2 (North) Rohini Courts,Delhi Page no.28 of total 28