Delhi District Court
Mr. Roshan Lal vs Mr. Vinod on 2 May, 2019
IN THE COURT OF MR. S. S. MALHOTRA: PO:MACT1 (NORTH):
ROHINI: DELHI
MACT No. 5856/16
FIR No. 1120/15
PS 1120/15
1. Mr. Roshan Lal
S/o Mr. Maha Singh
2. Ms. Mina
W/o Mr. Roshan Lal
3. Ms. Mamta
D/o Mr. Roshan Lal
Both R/o H. no.145, Shyam Baba Chowk,
Khera Khurd, Delhi.
....Petitioners
VERSUS
Mr. Vinod
S/o Mr. Charan Singh
R/o B130, J. J. Colony, Wazir Pur,
New Delhi.
....Respondent
The award is being passed on the basis of previous compliance which was effective from 15.01.2018 in terms of the judgment of the Hon'ble High Court and fresh direction with respect to reimbursement would be passed by converting the amount in Motor Accident Claims Annuity Deposit (MACAD) after the amount is deposited by the insurance company. It is made specifically clear that this amount would not be disbursed to the petitioner without compliance of new modified direction.
DATE OF INSTITUTION : 12.10.2015
JUDGMENT RESERVED ON : 23.04.2019
DATE OF JUDGMENT : 02.05.2019
MACT no.5856/16 Roshan Lal & anr. Vs. Vinod Page 1 of 14
FORM - IV A
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN DEATH CASES TO BE INCORPORATED IN THE AWARD
1. Date of accident: 21.09.2015.
2. Name of deceased: Rakesh Sharma
3. Age of the deceased: 26 years.
4. Occupation of the deceased: Private job
5. Income of the deceased: 30,000/ per month (Not proved)
6. Name, age and relationship of legal representatives of deceased:
S.No. Name Age Relation
(i) Mr. Roshan Lal 49 years Father
(ii) Ms. Mina 48 years Mother
(iii) Ms. Mamta 24 years Sister
Computation of Compensation
S.No. Heads Awarded by the Claims
Tribunal
7. Income of the deceased (A) Rs.22,500/ (25,000 - 2,500
towards income tax)
8. AddFuture Prospects (B) Rs.9,000/ (40%)
9. LessPersonal expenses of the deceased Rs.15,750/ (½ being only one (C) dependent)
10. Monthly loss of dependency Rs. 22500 + 9000 - 15,750 = { (A+B) - C =D} 15,750
11. Annual loss of dependency (Dx12) 1,89,000/ 12. Multiplier (E) 17
13. Total loss of dependency (Dx12xE = F) 32,13,000/
14. Medical Expenses (G) Nil
15. Compensation for loss of love and 40,000/ affection (H)
16. Compensation for loss of consortium (I) Nil MACT no.5856/16 Roshan Lal & anr. Vs. Vinod Page 2 of 14
17. Compensation for loss of estate (J) 15,000/
18. Compensation towards funeral expenses 15,000/ (K)
19. TOTAL COMPENSATION 32,83,000/ (F+G+H+I+J+K =L)
20. RATE OF INTEREST AWARDED 9% per annum 21 Interest amount up to the date of 10,83,390/ (32,83,000 x 9/100 compliance (M) x 44/12)
22. Total amount including interest (L+M) 43,66,390/ (rounded off as 43,66,000/)
23. Award amount released 10%
24. Award amount kept in FDRs 90%
25. Mode of disbursement of the award Phased manner amount to the claimant (s) (Clause 29)
26. Next date for compliance of the award. 08.06.2019 (Clause 31) FORM - V COMPLIANCE OF THE PROVISIONS OF THE MODIFIED CLAIMS TRIBUNAL AGREED PROCEXDURE TO BE MENTIONED IN THE AWARD
1. Date of the accident 21.09.2015
2. Date of intimation of the accident by the investigating 12.10.2015 officer to the Claims Tribunal (Clause 2)
3. Date of intimation of the accident by the investigating Vehicle was not officer to the insurance company. (Clause 2) insured
4. Date of filing of Report under section 173 Cr.P.C. before Not known the Metropolitan Magistrate (Clause 10)
5. Date of filing of Detailed Accident Information Report 12.10.2015 (DAR) by the investigating Officer before Claims Tribunal (Clause 10)
6. Date of Service of DAR on the Insurance Company (Clause N/A
11)
7. Date of service of DAR on the claimant(s). (Clause 11) 12.10.2015 MACT no.5856/16 Roshan Lal & anr. Vs. Vinod Page 3 of 14
8. Whether DAR was complete in all respects? (Clause 16) Yes
9. If not, whether deficiencies in the DAR removed later on? No
10. Whether the police has verified the documents filed with Yes DAR? (Clause 4)
11. Whether there was any delay or deficiency on the part of the No Investigating Officer? If so, whether any action/direction warranted?
12. Date of appointment of the Designated Officer by the N/A insurance Company. (Clause20)
13. Name, address and contact number of the Designated do Officer of the Insurance Company. (Clause 20)
14. Whether the designated Officer of the Insurance Company do submitted his report within 30 days of the DAR? (Clause
20)
15. Whether the insurance company admitted the liability? If do 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 on the part of the do Designated Officer of the Insurance Company? If so, whether any action/direction warranted?
17. Date of response of the claimant (s) to the offer of the do Insurance Company. (Clause 24)
18. Date of the Award 02.05.2019
19. Whether the award was passed with the consent of the No parties? (Clause 22)
20. Whether the claimant(s) were directed to open saving bank Yes account(s) near their place of residence? (Clause 18)
21. Date of order by which claimant(s) were directed to open 15.01.2018 and saving bank account (s) near his place of residence and 28.11.2018 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 the passbook of 23.01.2019 MACT no.5856/16 Roshan Lal & anr. Vs. Vinod Page 4 of 14 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 Claimant(s) (Clause H. no.145, Shyam
27) Baba Chowk, Khera Khurd, Delhi.
24. Details of saving bank account(s) of the claimant(s) and the All the petitioners address of the bank with IFSC Code (Clause 27) have their saving bank accounts with Punjab National Bank, Khera Khurd Branch, Delhi having nos.
P1 4607000100056535 P2 4607000100056410 P3 4607000100056429
25. Whether the claimant(s) saving bank account(s) is near his Yes place of residence? (Clause 27)
26. Whether the claimant(s) were examined at the time of Yes passing of the award.
27. Account number, MICR number IFSC Code, name and State Bank of India, branch of the bank of the Claims Tribunal in which the Rohini Courts award amount is to be deposited/transferred Complex Branch, Delhi. MICR code 110002427. IFSC Code SBIN0010323.
AWARD
1. Police filed Detailed Accident Report (DAR) with respect to accident occurred on 21.09.2015. Brief facts of the DAR are that on 21.09.2015 on MACT no.5856/16 Roshan Lal & anr. Vs. Vinod Page 5 of 14 receipt of DD no.32PP, IO HC Rajbir Singh alongwith Ct. Anand reached at Main Kheda Village near Sakurti Public School, Delhi where they found one Tata Magic bearing no.DL1LM2968 and they came to know that the injured person had been taken to Saroj Hospital, Delhi by his family members and driver of offending vehicle had been taken to Maharishi Valmiki Hospital, Delhi. Leaving Ct. Anand on the spot, IO reached Saroj Hopital and collected MLC of injured person, where the doctor declared him brought dead. Thereafter IO reached at Maharishi Valmiki Hospital, where he met with eyewitness Anil Kumar and IO collected the MLC of driver of offending vehicle and record the statement of Anil Kumar. On an endorsement made by IO, FIR No.1120/15 was registered in PS Bawana, Delhi, about that accident.
2. After completion of investigation, police indicted respondent Vinod (drivercumowner) for offences punishable under Sections 279/304A of IPC. IO filed 'Detailed Accident Report' (DAR) before this tribunal on 12.10.2015 and produced parents of deceased and drivercumowner Mr. Vinod before this tribunal. Offending vehicle was not insured at the time of accident.
3. Respondent has contested the claim by filing his written statement stating therein that no accident was caused by the alleged offending vehicle or the respondent has been falsely implicated in the present case with ulterior motive to extort money. It is stated that on 21.09.2015 at about 09:30 pm when answering respondent reached near Gurukul Road, Delhi then there was huge jam due to closer of railway crossing barricade and in the meanwhile four unknown persons came there and restrained the way of respondent and told him that he had caused an accident. It is stated that all the said four persons threatened the answering respondent with dire MACT no.5856/16 Roshan Lal & anr. Vs. Vinod Page 6 of 14 consequences and put pressure upon him to go behind alongwith them where some accident caused by one vehicle and when he refused to go with them, they started beating him, snatched the key of his vehicle and did not allow the respondent to cross the railway crossing barricade. It is stated that the abovesaid four persons forcefully took him in his auto around one kilometer behind i.e. Chote Kheda near bus stand Village Kheda, Delhi and they gave beating to the respondent and number of passerby tried to save him but the four persons did not hear anyone. It is stated that meanwhile a police gypsy came at the spot and to see the police persons all the four persons ran away from the spot alongwith belongings of respondents and the police officials rescued the respondent and seeing the condition of respondent, they took him to the hospital where the doctor treated him and after the treatment respondent was taken to PS Shahbad Dairy where he narrated the entire facts to the police. It is stated that thereafter 2530 persons had gathered in the police station and started abusing, threatening him and tried to beat the respondent in presence of police and in order to save the life of respondent they allowed him to stay in the police station and on the next day all the persons again gathered in the police station and made false statement against the respondent and later on he has been falsely implicated in the present case.
4. After completion of the proceedings, following issues were framed on 30.10.2015:
(i) Whether Mr. Rakesh Sharma died in a vehicular accident occurred on 21.09.2015 at 09:10 pm at Main Kheda Village Road near Sakurti Public School, Delhi due to rash or negligent driving of vehicle no. DL1LM2968 (Tata Magic) by respondent Vinod? OPP.
(ii) Whether petitioners are entitled to compensation, if yes, what amount MACT no.5856/16 Roshan Lal & anr. Vs. Vinod Page 7 of 14 and from whom? OPP.
(iii) Relief.
5. In order to prove their claim, petitioners have examined petitioner no.1 Mr. Anil Kumar as PW1, Mr. Roshan Lal as PW2, Ms. Mina as PW3 and Mr. Sushil Kumar as PW4. Respondent has not examined any witness.
6. I heard ld. counsels appearing on behalf of petitioners and respondent. My issuewise findings are as under: ISSUE No.1: Whether Mr. Rakesh Sharma died in a vehicular accident occurred on 21.09.2015 at 09:10 pm at Main Kheda Village Road near Sakurti Public School, Delhi due to rash or negligent driving of vehicle no. DL1LM2968 (Tata Magic) by respondent Vinod? OPP.
7. The onus to prove this issue was upon the petitioners. To prove this fact PW1 Mr. Anil Kumar deposed in his affidavit Ex.PW1/A that on 21.09.2015, he alongwith Rakesh Sharma was walking on the main road through their village from Bada Khera on feet after taking the meal and at about 09:10 pm when they reached at Sukriti School suddenly vehicle bearing no.DL1LM2968 which was being driven by its driver, in drunken condition, in a high speed and in a rash and negligent manner and it hit Rakesh Sharma from behind, due to such impact, his son fell down on road and sustained injuries. He deposed that driver of offending vehicle was chased and caught by the public persons and the driver was beaten by the public persons and thereafter he alongwith his friends took Rakesh Sharma to Saroj Hospital, and PCR took the respondent to Maharishi Valmiki Hospital, Delhi where they came to know about the death of Rakesh Sharma.
8. PW2 Mr. Roshan Lal and PW3 Ms. Mina deposed on the lines of PW1. In the crossexamination they deposed that they were not present at the spot at MACT no.5856/16 Roshan Lal & anr. Vs. Vinod Page 8 of 14 the time of accident.
9. PW1 has been duly crossexamined but the testimony of the said PW with respect to accident and rash & negligent driving of the offending vehicle by respondent could not be impeached. Even otherwise the proof of negligence while disposing off a claim under MACT, is not that strict as it is under Section 279/304A of IPC. Respondent although has denied the factum of accident but has not led any evidence to prove the same. As far as theory of falsely implicating the respondent is concerned, this contention of respondent cannot be read as if some mischief had to be done then the petitioners would have chosen such a vehicle which would have been duly insured and therefore, the contention of respondent that he and his vehicle had been falsely implicated in the present case, firstly cannot be believed and secondly has not been proved by the respondent as no evidence has been led by him. The allegations levelled in the written statement howsoever strong that may be cannot take place of proof particularly when despite having raised this issue respondent has not led any positive evidence on this aspect. It is a matter of record that there is no evidence at all to show that victim was at fault, in any way. The fact that Mr. Rakesh Sharma died in that accident is also supported by his postmortem report on the dead body of victim. After investigation, police indicted respondent for offences punishable under Sections 279/304A of IPC. The FIR has been registered against respondent and he is facing the trial as an accused is not disputed. Even otherwise strict rule that negligence is to be proved beyond reasonable doubt is not required to be proved in MACT proceedings. Considering all these facts, it stands proved that accident in question was caused on 21.09.2015 due to rash or negligent driving of motorcycle bearing no.DL1LM2968 by respondent thereby causing death of Mr. MACT no.5856/16 Roshan Lal & anr. Vs. Vinod Page 9 of 14 Rakesh Sharma.
10. This issue is therefore decided in favour of the petitioners and against respondent by holding that victim Mr. Rakesh Sharma died in a vehicular accident due to rash and negligent driving of motorcycle bearing no.DL 1LM2968 by respondent.
ISSUE No.2: Whether petitioners are LR's of said victim and entitled to compensation, if so, what amount and from whom of respondents? OPP.
11. However as far as petitioner no.3 is concerned, she cannot be said to be an LR of deceased nor she can be said to be dependent upon the brother whose father himself is alive. Thus petitioner no.3 is not the LR of deceased and she is not entitled to any compensation in MACT proceedings.
12. It is not disputed during arguments that petitioners are LR's of victim. Moreover, this fact is established by statements of PW2 Mr. Roshan Lal and PW3 Ms. Mina parents of victim. Being LR's of deceased, petitioners are well within their rights to claim compensation from respondents.
13. As far as petitioner no.1 is concerned, he cannot be said to be dependent upon the deceased in view of the case of Smt. Sarla Verma and Ors. Vs. Delhi Transport Corporation and Anr. Civil Appeal no.3483 of 2008 (Arising out of SLP (C) No. 8648 of 2007) decided by Hon'ble Supreme Court on 15.04.2009 wherein it is held that "the father is likely to have his own income and will not be considered as a dependent and the mother alone will be considered as a dependent."
14. Now coming to the extent of compensation. It is deposed by PW1 that at the time of accident deceased was 26 years of age. As per matriculation certificate of deceased, his date of birth was 01.09.1989 and as per the said document, he was more than 26 years of age at the time of accident. It is MACT no.5856/16 Roshan Lal & anr. Vs. Vinod Page 10 of 14 stated by PW2 that his deceased son was working as an accountant with M/s Daksh Tember Store at Khera Khurd, Delhi and was earning a sum of Rs.30,000/ per month.
15. Petitioners also examined PW4 Mr. Sushil Kumar, who was the proprietor of M/s Daksh Timber and he has brought the pay slips and service record of deceased Ex.PW4/1. In the crossexamination he deposed that deceased was getting a salary of Rs.25,000/ per month.
16. As per the judgment in the case of National Insurance Company Limited Vs. Pranay Sethi and others of Hon'ble Supreme Court the net income of the deceased is to be counted after deduction of tax and future benefit have to be given @ 40% as the deceased was doing private job. Apparently the salary of the deceased which is stated to be taxable and accordingly 10% tax is deducted on the said income i.e. Rs.2,500/. Similarly since the deceased was a self employed 40% of enhancement of salary be also given to the petitioners. Keeping in view the fact that deceased was more than 26 years old, therefore the income for the purpose of loss of dependency has to be taken as Rs.31,500/ (25,000 - 2,500 + 9,000) per month. It is pointed out by ld. counsel for petitioners that victim was unmarried, survived by his parents.
17. He is stated to be unmarried to calculate loss of dependency, the multiplier has to be taken on the basis of age of deceased. As per documents placed on record, the age of the deceased was more than 26 years at the time of accident. A multiplier of 17 is thus taken in calculating loss of dependency. Being unmarried, victim is presumed to be spending ½ of his income on his personal expenses. Counting in this way, loss of dependency comes to Rs.32,13,000/ (31,500 x 12 x 17 - 1/2). This amount of Rs.32,13,000/ is allowed to petitioners as loss of dependency.
MACT no.5856/16 Roshan Lal & anr. Vs. Vinod Page 11 of 1418. Apart from amount mentioned above, petitioners are granted a sum of Rs.40,000/ for loss of love and affection towards deceased, Rs.15,000/ for funeral expenses and Rs.15,000/ for loss of estate, making a total sum of Rs.32,83,000/ detail of which is given as under: i. Loss of dependency Rs. 32,13,000/ ii. Funeral expenses Rs. 15,000/ iii. Loss of Estate Rs. 15,000/ iv. Loss of love and affection Rs. 40,000/ Total Rs. 32,83,000/
19. Now coming to the aspect of liability. It has already been held herein above that the petitioner had suffered injuries due to rash and negligent driving of respondent. In view of the above and since the vehicle was not insured and respondent has no defence, respondent is liable to pay compensation to the petitioner.
20. This issue is therefore decided in favour of the petitioner and against respondent by holding that petitioner is entitled for compensation from respondent.
ISSUE NO.3 (RELIEF)
21. Petition in hands is allowed. Respondent is directed to pay Rs.32,83,000/ (Rs.43,66,000/ alongwith interest @ 9% upto the date of compliance) to the petitioners as compensation in this case, within 30 days from today, along with interest @ 9% p.a. from the date of filing of claim petition i.e. 12.10.2015 till realization of amount. Amount of interim compensation (if any) be deducted from this amount.
22. Considering circumstances of petitioners and after consulting ld. counsel MACT no.5856/16 Roshan Lal & anr. Vs. Vinod Page 12 of 14 representing them, it is directed that amount of compensation be divided between petitioners no.1 and 2 equally.
23. On 23.01.2019, petitioners gave statements about disbursement of amount of compensation.
24. Considering circumstances of petitioner and after consulting ld. counsel representing them, 10% of awarded amount be disbursed to the petitioners no.1 and 2 by way of transferring the same in their saving bank accounts where from the petitioners would be allowed to withdraw the same through withdrawal slip only and by no other mode/modes i.e. ATM/debit card/credit card/letter/NEFT/RTGS etc. Bank Manager as mentioned in column no.24 of FormV of the petitioners bank is directed to convert the said account of the petitioners in, MACT SAVING BANK ACCOUNT and after receiving the amount he would convert the amount into Motor Accident Claims Annuity Deposit (MACAD) and from that MACAD account he would release the amount in equal monthly installment of Rs.10,000/ to be directly credited in their MACT SAVING BANK ACCOUNT from where the petitioners would be allowed to withdraw the amount only by way of withdrawal slip as stated herein below that too after the specific permission of this court.
25. The salient features as prescribed in the judgment in Rajesh Tyagi Vs. Jaibir Singh FAO No. 842/2009 decided on 16.12.2009 are to be applied:
(i) The fixed deposit be renewed automatically till the period prescribed by the Court.
(ii) The interest on the fixed deposit be paid monthly.
(iii) The monthly interest be credited automatically in the saving account of the claimant.
(iv) Original fixed deposit receipt be retained by the bank in safe custody.MACT no.5856/16 Roshan Lal & anr. Vs. Vinod Page 13 of 14
However, the original passbook shall be given to the claimant along with the photocopy of the MACAD.
(v) The original fixed deposit/MACAD receipt be handed over to the claimant at the end of the fixed deposit period.
(vi) 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.
(vii) No cheque book/ATM/debit card/credit card shall be issued to the claimant without permission of the Court.
(viii) No loan, advance or withdrawal or preencashment of FD amount shall be allowed on the fixed deposit without permission of the Court.
26. Respondent is directed to deposit entire amount of compensation with this tribunal, within 30 days from today, with advance notice to petitioners.
27. Notice be also sent to the Incharge, Computer Branch (North) to send a copy of this award to Nodal officer, Punjab National Bank on his email ID Digitally signed i.e. [email protected]. by S S SS MALHOTRA File be consigned to record room. MALHOTRA Date: 2019.05.02 17:52:42 +0100 ANNOUNCED IN THE OPEN (S. S. MALHOTRA) COURT ON 02.05.2019 PO, MACT NORTH, ROHINI, DELHI MACT no.5856/16 Roshan Lal & anr. Vs. Vinod Page 14 of 14