Delhi District Court
Mr. Bhagwan Dass vs Mr. Munna Lal Sharma on 23 January, 2019
IN THE COURT OF SH. S.S. MALHOTRA
PO:MACT-1 (NORTH): ROHINI: DELHI
MACT no. 776/17
FIR no. 221/17
PS Swaroop Nagar
1. Mr. Bhagwan Dass
S/o Nand Lal
2. Mr. Raju
3. Mr. Gulshan
Both S/o Sh. Bhagwan Dass
All R/o H. No. 443, Gali No. 1,
Kaushak Road, Swaroop Nagar,
Delhi.
.........Petitioners
VERSUS
1. Mr. Munna Lal Sharma
S/o Mr. Mansa Ram Sharma
R/o H. No. 141, Main Road,
Near Pal Market Saboli,
Nanad Nagar, Delhi.
2. IFFCO TOKIO General Ins. Co. Ltd.
IFFCO Sadan C-1, District Centre,
Saket, New Delhi.
......Respondents
DATE OF INSTITUTION : 06.09.2017
Bhagwan Dass & Ors. Vs. Munna Lal & Ors.
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JUDGMENT RESERVED ON : 11.01.2019
DATE OF AWARD : 23.01.2019
FINAL ORDER : AWARD OF
RS. 82,000/-
FORM - IV A
1. Date of accident: 27.07.2017
2. Name of deceased: Smt. Shanti
3. Age of the deceased: 71 years
4. Occupation of the deceased: House wife
5. Income of the deceased: 15,000/- pm (not proved)
6. Name, age and relationship of legal representatives of deceased:
S. Name Age Relation
No
(i) Mr. Bhagwan Dass 83 years Husband
(ii) Mr. Raju 37 years son
(ii) Mr. Gulshan 40 years son
Computation of Compensation
S. Heads Awarded by the Claims
No Tribunal
7. Income of the deceased (A) Rs. 3000/- per month
The deceased was aged
about 71 years and at the
age of 71, the deceased
Bhagwan Dass & Ors. Vs. Munna Lal & Ors.
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cannot be eually compared with abled bodied person and therefore cannot be held entitled to the compensation on account of minimum wages of an unskilled person. However Rs. 3000/- is given to senior citisen as pension by Delhi Government and the same amount is taken for the purpose of calculation of compensation.
8. Add-Future Prospects (B) Nil.
9. Less-Personal expenses of the 85% being no dependent deceased (C ) upon victim
10. Monthly loss of dependency / Estate Petitioners were not { (A+B) - C =D} dependent upon the deceased but monthly loss to estate comes to Rs.
450/-
11. Annual loss of dependency (Dx12) 5,400/- 12. Multiplier (E) 5
13. Total loss of dependency (Dx12xE = Petitioners were not F) dependent upon the deceased Bhagwan Dass & Ors. Vs. Munna Lal & Ors.
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14. Medical Expenses (G) Nil.
15. Compensation for loss of love and Nil. affection (H)
16. Compensation for loss of consortium 40,000/- (I)
17. Compensation for loss of estate (J) Rs. 27,000/- (Loss of estate assessed as per judgment in Keith Rowe Vs. Prashant Sagar & Ors.)
18. Compensation towards funeral Rs. 15,000/- expenses (K)
19. TOTAL COMPENSATION Rs. 72,000 (F+G+H+I+J+K =L)
20. RATE OF INTEREST AWARDED 9% 21 Interest amount up to the date of 9,180 (17 months i.e. award (M) from 06.09.2017 to 06.3.2019 except for the period from 16.10.2018 to 14.11.2018, interest for such period was withheld vide order dated 16.10.2018)
22. Total amount including interest 81,180/- rounded off to (L+M) Rs. 82,000/-
23. Award amount released 10% subject to modified direction of the Hon'ble High Court Bhagwan Dass & Ors. Vs. Munna Lal & Ors.
MACT no. 776-17 4 /24
24. Award amount kept in FDRs 90% as per direction of the Hon'ble High Court
25. Mode of disbursement of the award In phased manner amount to the claimant (s) (Clause
29)
26. Next date for compliance of the 06.03.2019 award. (Clause 31) FORM - V AGREED PROCEXDURE TO BE MENTIONED IN THE AWARD
1. Date of the accident 27.07.2017
2. Date of intimation of the accident by the 06.09.2017 investigating officer to the Claims Tribunal (Clause 2)
3. Date of intimation of the accident by the 06.09.2017 investigating officer to the insurance company. (Clause 2).
4. Date of filing of Report under section 173 Not mentioned Cr.P.C. before the Metropolitan Magistrate (Clause 10).
5. Date of filing of Detailed Accident 06.09.2017 Information Report (DAR) by the investigating Officer before Claims Tribunal (Clause 10)
6. Date of Service of DAR on the Insurance 06.09.2017 Company (Clause 11) Bhagwan Dass & Ors. Vs. Munna Lal & Ors.
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7. Date of Service of DAR on the 06.09.2017 complainant(s)(Clause 11)
8. Whether DAR was complete in all No. respects? (Clause 16)
9. If not, whether deficiencies in the DAR Yes. removed later on?
10. Whether the police has verified the No. documents filed with DAR? (Clause 4)
11. Whether there was any delay or deficiency Yes. on the part of the Investigating Officer? If so, whether any action/direction warranted?
12. Date of appointment of the Designated Not appointed Officer by the insurance Company.
(Clause20)
13. Name, address and contact number of the Not appointed Designated Officer of the Insurance Company. (Clause 20)
14. Whether the designated Officer of the Not appointed Insurance Company submitted his report within 30 days of the DAR? (Clause 20)
15. Whether the insurance company admitted No offer was filed the liability? If so, whether the Designated Officer of the insurance company fairly computed the compensation in accordance with law. (Clause 23)
16. Whether there was any delay or deficiency No designated officer Bhagwan Dass & Ors. Vs. Munna Lal & Ors.
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on the part of the Designated Officer of the was appointed Insurance Company? If so, whether any action/direction warranted?
17. Date of response of the claimant (s) to the No offer was filed offer of the Insurance Company .(Clause
24)
18. Date of the Award 23.01.2019
19. Whether the award was passed with the No. Parties contested consent of the parties? (Clause 22) the case
20. Whether the claimant(s) were directed to Yes. open saving bank account(s) near their place of residence? (Clause 18)
21. Date of order by which claimant(s) were 30.05.2018 directed to open saving bank account (s) near his place of residence and produce PAN Card and Aadhar Card and the direction to the bank not issue any cheque book/debit card to the claimant(s) and make an endorsement to this effect on the passbook(s). (Clause 18)
22. Date on which the claimant (s) produced 05.12.2018 the passbook of their saving bank account near the place of their residence along with the endorsement, PAN Card and Aadhar Card? (Clause 18)
23. Permanent Residential Address of the All R/o H. No. 443, Claimant(s) (Clause 27) Gali No. 1, Kaushak Bhagwan Dass & Ors. Vs. Munna Lal & Ors.
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Road,Swaroop Nagar, Delhi.
24. Details of saving bank account(s) of the Petitioner no. 1 a/c no. claimant(s) and the address of the bank 0392000000020137 with IFSC Code (Clause 27) Petitioner no. 2 a/c no.
0392000000027492 Petitioner no. 3 a/c no.
0392000000027487
all with the Nainital
Bank Ltd, Branch
Shalimar Bagh, Delhi
IFSC Code
NTBLODEL039
25. Whether the claimant(s) saving bank Yes
account(s) is near his place of residence? (Clause 27)
26. Whether the claimant(s) were examined at Yes the time of passing of the award.
AWARD
1. Vide this order I shall dispose of the "detail accident report' (DAR) filed by the police with respect to the accident which occurred on 27.07.2017 at 12.05 pm at Service Road Near Libaspur underpass, Swaroop Nagar, Delhi in which one Smt. Shanti Devi suffered fatal injuries., LRs of deceased, driver cum owner and Mr. Pardeep Bhagwan Dass & Ors. Vs. Munna Lal & Ors.
MACT no. 776-17 8 /24
Seharawat, Advocate for Ins. Co., were present on the day of filing the DAR. Copy of DAR was supplied to all the parties.
2. Brief facts of the accident as per DAR are that on 27.07.2017 at about 12.05 pm, victim Smt. Shanti along with Mr. Rahul was going to hospital for a regular check-up and when they reached at GT Karnal service road near Libaspur underpass, New Delhi, meanwhile an E-rickshaw, which was being driven by respondent no. 1 (driver cum owner) in a rash and negligent manner and without proper lookouts came from behind and hit the victim. Due to such impact, she fell down on road and suffered injuries. She was taken to Patliputra Nursing Home from where she was shifted to Babu Jagjeevan Ram Memorial Hospital, for treatment, however she was declared 'brought dead' by the doctors.
3. No written statement / reply to the DAR was filed by respondent no.
1 (driver cum owner). Respondent no. 2 (Ins. Co.) in its written Bhagwan Dass & Ors. Vs. Munna Lal & Ors.
MACT no. 776-17 9 /24
statement has not disputed the fact that offending vehicle was insured with it on the date of accident, however it has taken the plea that respondent no. 1 was not having valid DL at the time of accident and therefore it is not liable to indemnify the insured / owner and to pay compensation to the petitioners. It has denied its all liabilities on technical grounds as well.
4. From the pleadings of parties following issues were framed vide order dated 11.10.2017 :-
1. Whether Smt. Shanti Devi (deceased) suffered fatal injuries in a vehicular accident occurred on 27.07.2017 at 12.05 pm due to rash or negligent driving of e-rickshaw bearing registration no. DL1ERA 8963 by respondent no. 1(Munna Lal Sharma)?
OPP.
2. Whether the petitioners are LRs of deceased and entitled to compensation if so, what amount and from which of the respondents? OPP.
3. Relief.
Bhagwan Dass & Ors. Vs. Munna Lal & Ors.
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5. In order to prove the claim, petitioner Mr. Bhagwan Dass (husband of deceased), filed his affidavit Ex. PW1/A in evidence and examined himself as PW1. PW2 Mr. Rahul, stated to be eyewitness of the accident has also been examined. Respondent no. 1 opted not the lead any evidence. Respondent no. 2 (Ins. Co.) has examined Mr. Anshuman as R2W1.
I have heard ld. counsels appearing on behalf of parties and gone through the record. My findings issue wise are as under:- ISSUE NO. 1
Whether Smt. Shanti Devi (deceased) suffered fatal injuries in a vehicular accident occurred on 27.07.2017 at 12.05 pm due to rash or negligent driving of e-rickshaw bearing registration no. DL1ERA 8963 by respondent no. 1(Munna Lal Sharma)? OPP.
6. Onus to prove this issue was upon the petitioners. To prove that victim suffered fatal injuries on account of rash and negligent driving Bhagwan Dass & Ors. Vs. Munna Lal & Ors.
MACT no. 776-17 11 /24
by respondent no. 1, petitioner (PW1) filed his affidavit (Ex. PW1/A) in evidence and reiterated the facts as per DAR. Petitioners have also examined Mr. Rahul, stated to be eyewitness of the accident. Nothing material has come on record to disbelieve testimony of PWs. No suggestion was given to PW2, in his cross examination by Ld. Counsel for respondent no. 2, regarding the manner in which the accident took place. PW2 has not at all been cross examined by respondent no. 1. Respondent no. 1 even has not examined himself to prove that he was not negligent or that he was not at fault or that he has been falsely implicated in criminal case or that accident had occurred due to negligence on the part of victim. Criminal case record filed on recored show that respondent no. 1 was indicted by police for offences punishable under Section 283/337/304A IPC read with Section 3 /181 of M.V. Act. Nothing has filed on record which shows that respondent no. 1 has approached to any higher Bhagwan Dass & Ors. Vs. Munna Lal & Ors.
MACT no. 776-17 12 /24
authority or any forum against his implication in this case. Apart from deposition of PWs, the fact that victim suffered fatal injuries in the accident is also supported from her postmortem report etc. Considering all this, it stands proved that accident in question occurred due to rash or negligence driving of offending vehicle by respondent no. 1 and victim suffered fatal injuries in that accident. Issue no. 1 is decided accordingly in favour of petitioners and against the respondents.
ISSUE NO. 2
Whether the petitioners are LRs of deceased and entitled to compensation if so, what amount and from which of the respondents? OPP.
7. It is not disputed the petitioners are husband and sons of deceased, therefore, being LRs of deceased, petitioners who are husband and sons of deceased are well within their rights to claim compensation from the respondents.
Bhagwan Dass & Ors. Vs. Munna Lal & Ors.
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NOW COMING TO QUANTUM OF COMPENSATION
8. As stated above, it is admitted fact that deceased 71 years old at the time of accident and petitioners are husband and two married sons of deceased and in terms of the judgment in Sarla Verma Vs. DTC 2009 ACJ 1298 SC petitioners were not financially dependent upon deceased and therefore they would be entitled to the compensation for loss of estate only in terms of the judgment in Keith Rowe Vs. Prashant Sagar & Ors MAC.APP.No.601/2007 decided on 15 January-2010 wherein the Hon'ble High Court has summarised the law with respect to such cases where LRs is/are not financially dependent upon the deceased as under:
"(i) The law contemplates two categories of damages on the death of a person. The first is the pecuniary loss sustained by the dependent members of his family as a result of such death. The second is the loss caused to the estate of the deceased as a result of such death. In the first category, the action is brought by the legal representatives, as trustees for the dependents beneficially entitled.
In the second category, the action is brought by the legal representatives, on behalf of the estate of the deceased and the Bhagwan Dass & Ors. Vs. Munna Lal & Ors.
MACT no. 776-17 14 /24
compensation, when recovered, forms part of the assets of the estate. In the first category of cases, the Tribunal in exercise of power under Section 168 of the Act, can specify the persons to whom compensation should be paid and also specify how it should be distributed.
(ii) Where the claim is by the dependents, the basis for award of compensation is the loss of dependency, that is loss of what was contributed by the deceased to such claimants. A conventional amount is awarded towards loss of expectation of life, under the head of loss to estate.
(iii) Where the claim by the legal representatives of the deceased who were not dependents of the deceased, then the basis for award of compensation is the loss to the estate, that is the loss of savings by the deceased.
A conventional sum for loss of expectation of life, is added.
(iv) The procedure for determination of loss to estate is broadly the same as the procedure for determination of the loss of dependency. Both involve ascertaining the multiplicand and capitalising it by multiplying it by an appropriate multiplier. But, the significant difference is in the figure arrived at as multiplicand in cases where the claimants who are dependents claim loss of dependency, and in cases where the claimants who are not dependents, claim loss to estate. The annual contribution to the family constitutes the multiplicand in the case of loss of dependency, whereas the annual savings of the deceased becomes the multiplicand in the case of loss to estate. The method of selection of multiplier is however the same in both cases."
9. Now coming to the multiplier aspect. As discussed herein above, Bhagwan Dass & Ors. Vs. Munna Lal & Ors.
MACT no. 776-17 15 /24
petitioners are entitled to compensation on account of loss of estate only and in Keith Rowe Vs. Prashant Sagar & ors. MAC appeal no.601 of 2007 decided on 15.01.2010, it has also been settled that multiplier would however remain same and it is only the head under which the petitioners would likely to succeed would change.
10. Now coming to the calculation part of compensation. Ld. Counsel for petitioners submitted that even if the victim 71 years of age, she cannot be treated having no income of her own. At the age of 71, the deceased cannot be eually compared with abled bodied person and therefore cannot be held entitled to the compensation on account of minimum wages of an unskilled person. However Rs. 3000/- is given to senior citisen as pension by Delhi Government and the same amount is taken for the purpose of calculation of compensation. Being more than 71 years of age, a multiplier of 5 is applied. As per the judgment in the case of National Insurance Bhagwan Dass & Ors. Vs. Munna Lal & Ors.
MACT no. 776-17 16 /24
Company Limited Vs. Pranay Sethi and others of Hon'ble Supreme Court, the petitioners are not entitled for future prospects.
11. In case, where the petitioners / claimants were not financially dependent upon the victim, the illustration given in Keith Rowe Vs. Prashant Sagar & ors. MAC appeal no.601 of 2007 decided on 15.01.2010, by the Hon'ble Court are helpful which reads as under:
l........
ll..........
lll..............
iv.................
(v) if the deceased was a bachelor and the claimants are two non-
dependent brothers / sisters aged 47 years and 45 years with independent income, the position would be different. As the deceased did not have a 'family', the tendency would be to spend more on oneself and the saving would be hardly 15%. If the saving is taken as 15% (Rs. 1350/- per month), the annual saving would be Rs. 16,200/- which would be the multiplicand. The multiplier will be 13 with reference to the age of the claimants and the loss of estate would be Rs. 2,10,600/- per annum.
The above will apply where the family consists of non-dependent spouse/children/parents. Where the claimants are non-dependent brothers/sisters claiming on behalf of the estate, the saving can be taken as 15% of the income. The above percentage, one of course, subject to any specific evidence to the contrary led by the claimants. Bhagwan Dass & Ors. Vs. Munna Lal & Ors.
MACT no. 776-17 17 /24
Therefore, loss to estate is taken as 15% of the income i.e. Rs. 3000X12x5 = ,80,000/-, 15% of which comes to Rs. 27,000/- and after adding Rs. 15,000/- towards funeral expenses and Rs. 40,000/- towards loss of consortium, it comes to Rs. 72,000/- and after adding 17 months interest @ 9% per annum from the date of filing claim petition i.e. 08.01.2015 to 08.01.2019 i.e. Rs. 9180, a total compensation of Rs. 81,180/-, rounded off to Rs 82,000/- is awarded to the petitioners, details of which are mentioned in the above proforma.
This issue is thus decided in favour of petitioner and against respondents.
Now coming to the aspect as to which of the respondents is liable to pay the compensation to the petitioners.
12. It is not disputed the vehicle was duly insured with respondent no. 2 on the date of accident. The contention of Ld. Counsel for Ins. Co. is Bhagwan Dass & Ors. Vs. Munna Lal & Ors.
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that the respondent no. 1 / driver cum owner was not having a valid and effective driving licence. To prove such contention, it has examined R2W1 Mr. Anshuman, Assistant Manager, who relied upon the document i.e. legal notice under Order 12 Rule 8 CPC was was sent to the respondent no. 1 through speed post Ex. R2W1/3, R2W1/4 and R2W1/5. This witness has not at all been examined by respondent no. 1, nor any driving licence was produced by respondent no. 1. I have perused the record, the contention of Ld. Counsel for Ins. Co. is well found as DAR was also filing mentioning 'without DL case' and respondent no. 1 also challaned under Section 3/181 of M.V. Act which itself shows that respondent no. 1 was not having any DL at the time of accident. However, it is well settled that insurer is primarily liable to pay compensation. Following was mandated by Apex Court in case National Insurance Company Ltd. Vs. Chela Bharathamma & Ors. appeal (civil) 6178 of 2004 : -
Bhagwan Dass & Ors. Vs. Munna Lal & Ors.MACT no. 776-17 19 /24
"Considering the beneficial object of the Act i.e the Motor Vehicles Act , it would be proper for the insurer to satisfy the award first.
In view of above findings insurance company is liable to pay the compensation to the petitioner, however respondent no. 2 is given liberty to recover the amount of compensation from respondent no. 1 but after making the payment to the petitioner. This issue is therefore, decided in favour of petitioner and against the respondent no. 2.
ISSUE NO. 3 (RELIFE).
13. Petition in hands is allowed. Respondent no. 2 is directed to pay Rs.
82,000/- to the petitioners failing which respondent no. 2 would pay the interest @ 9% on the amount of Rs. 72,000/- details of which are mentioned in the above proforma, till realization apart from awarded amount of Rs. 82,000/-
Bhagwan Dass & Ors. Vs. Munna Lal & Ors.
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14. Statement of petitioner about disbursement of amount of compensation was recorded. Further petitioner petitioners have got their bank account opened in terms of modified direction of Hon'ble High Court and filed photocopy of their passbook of such account. Considering circumstances of petitioners, it is directed that awarded amount be divided equally among the petitioners and out of their share, 90% amount be kept in FDRs to be released to them in a phased manner i.e. Rs. 10,000/- monthly directly crediting in their account and remaining 10% amount be released to them through their saving bank account, detail of which are mentioned in the above proforma, this amount will be withdrawn only by way of withdrawal slip and by no other mode or digital mode i.e. Debit card / Credit card /ATM/NEFT/RTGS/letter etc.
15. The salient features as prescribed in the judgment in Rajesh Tyagi Vs. Ramesh Chandra Gupta FAO No. 842/2009 and MAC. APP. Bhagwan Dass & Ors. Vs. Munna Lal & Ors.
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No. 422/2009 decided on 07.11.2014 are to be applied: -
1. The fixed deposit be renewed automatically till the period prescribed by the Court.
2. The interest on the fixed deposit be paid monthly.
3. The monthly interest be credited automatically in the saving account of the claimant.
4. Original fixed deposit receipt be retained by the bank in safe custody. However, the original passbook shall be given to the claimant along with the photocopy of the FDR.
5. The original fixed deposit receipt be handed over to the claimant at the end of the fixed deposit period.
6. Photo identity card shall be issued to the claimant and the withdrawal shall be permitted only after due verification by the Bank of the identity card of the claimant.
7. No cheque book and debit / credit card shall be issued to the Bhagwan Dass & Ors. Vs. Munna Lal & Ors.MACT no. 776-17 22 /24
claimant without permission of the Court.
8. No loan, advance or premature withdrawal or premature encashment shall be allowed on the fixed deposit without permission of the Court.
9. The amount would be directly credited in the bank account of the petitioner, without any necessity of visiting her to court, where FDRs are kept.
10. The bank of the petitioner would make necessary endorsement on the passbook of the petitioner and in its own record as "MACT case" and amount to be disbursed only in terms of the order of the court.
11. Bank manager concerned to inform the court in writing prior to releasing of any amount to the petitioner, to the effect that compliance of the order of the Hon'ble High Court has been made with respect to disbursement. In no case, amount of award can be Bhagwan Dass & Ors. Vs. Munna Lal & Ors.
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released without filing a compliance report in the court and the amount, which the respective petitioner would be withdrawing can only be allowed through withdrawal slip and by no other mode or any digital mode i.e. Debit card / Credit card /ATM/NEFT/RTGS/letter etc. Respondent no. 2 / Ins. Co. is directed to deposit entire amount of compensation with this tribunal within 30 days, with advance notice to petitioners.
File be consigned to record room.
ANNOUNCED IN THE OPEN (S.S. MALHOTRA) COURT ON 23.01.2019 PO, MACT- NORTH, ROHINI, DELHI Bhagwan Dass & Ors. Vs. Munna Lal & Ors.
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