Delhi District Court
Sh. Poonam Gupta vs Himanshu Sharma on 6 June, 2018
MACP Nos. 5938/16 & 5935/16, FIR No. 1257/15, PS.Narela DOD: 06.06.18
IN THE COURT OF SHRI VIDYA PRAKASH, PRESIDING OFFICER,
MOTOR ACCIDENT CLAIMS TRIBUNAL, ROHINI COURTS, DELHI
MAC Petition No. 5938/16 (Old MAC Petition No. 546/15)
1. Sh. Poonam Gupta
W/o. Late Sh. Manoj Kumar Gupta
2. Preeti
D/o. Late Sh. Manoj Kumar Gupta
3. Shubham
S/o. Late Sh. Manoj Kumar Gupta
All R/o. H.No. Gali 4B, Sawtantra Nagar,
Narela, Delhi110040.
(Petitioners No. 2 to 3 being minor, are
represented through her mother Poonam Gupta/
Natural Guardian/petitioner No. 1).
..........Petitioners
VERSUS
1. Himanshu Sharma
S/o. Sh. Dharam Pal Sharma
R/o. H.No. 165, Sector15, Sonepat,
Haryana (Driver).
2. M/s. Bhagwati Industries
Plot No. 119, Datauri Industries Area,
Sonepat, Haryana131001 (Owner)
3. M/s. Cholamandlam MS General Insurance Co. Ltd.
Plot No. 1st Floor Near Metro Pillar No. 81,
Main, 6, Pusa Road, Karo Bagh, Delhi110085 (insurer).
............Respondents
AND
MAC Petition No. 5935/16 (Old MAC Petition No. 547/15)
1. Smt. Sanju Devi
W/o. Late Sh. Ashok Chaudhary
2. Sh. Shisham Kumar @ Akash
S/o. Late Sh. Ashok Chaudhary
Poonam Gupta & Ors. Vs. Himanshu Sharma & Ors. & Smt. Sanju Devi & Ors. Vs. Himanshu Sharma & Ors. Page 1 of 21
MACP Nos. 5938/16 & 5935/16, FIR No. 1257/15, PS.Narela DOD: 06.06.18
3. Sh. Amresh
S/o. Late Sh. Ashok Chaudhary
4. Sh. Sukhrao Chaudhari
S/o. Late Sh. Chandrika
5. Smt. Kusum Devi
W/o. Sh. Sukhrao Chaudhari
All R/o. Village Ganj Bharsara, Anchal Dinara,
District Rohtash, Bihar802218.
At present : 1B Near Bharat Mata Mandir,
Swatantar Nagar,Narela, Delhi110040.
(Petitioners No. 2 to 3 being minor, are
represented through her mother Sanju Devi/
Natural Guardian/petitioner no. 1).
............Petitioner
VERSUS
1. Himanshu Sharma
S/o. Sh. Dharam Pal Sharma
R/o. H.No. 165, Sector15, Sonepat,
Haryana (Driver).
2. M/s. Bhagwati Industries
Plot No. 119, Datauri Industries Area,
Sonepat, Haryana131001 (Owner)
3. M/s. Cholamandlam MS General Insurance Co. Ltd.
Plot No. 1st Floor Near Metro Pillar No. 81,
Main, 6, Pusa Road,
Karo Bagh, Delhi110085 (insurer). ............Respondents
Date of Institution : 03.11.2015
Date of Arguments : 23.05.2018
Date of Decision : 06.06.2018
APPEARENCES:
Sh. P.K. Mishra, Adv for petitioners.
None for Respondents No. 1 & 2.
Sh. Vikas Chuhan, Adv for respondent no. 3.
Poonam Gupta & Ors. Vs. Himanshu Sharma & Ors. & Smt. Sanju Devi & Ors. Vs. Himanshu Sharma & Ors. Page 2 of 21
MACP Nos. 5938/16 & 5935/16, FIR No. 1257/15, PS.Narela DOD: 06.06.18
Petitions under Section 166 and 140 of M.V. Act, 1988
for grant of compensation
AWARD:
1. Vide this common order, I shall dispose of both these claim
petitions with regard to fatal injuries sustained by Sh. Manoj Kumar Gupta
(MACP No. 5938/16) and by Sh. Ashok Chaudhary (MACP No. 5935/16) in
Motor Vehicular Accident which occurred on 30.09.15 at about 9.30 p.m. at 80
Foota Road, Near Munim Ji Ka Bagh, Opp.CNG Pump, Narela, Delhi,
involving Eicher bearing no. HR69B2651 (alleged offending vehicle) being
driven at very high speed and rashly and negligently by its driver i.e.
respondent no. 1.
2. Both these claim petitions were consolidated for the purpose of
recording of respondent's evidence vide order dated 27.09.2016 and MACP
No. 5938/16 titled as " Poonam Gupta & Others Vs. Himanshu Sharma"
was treated as the leading case. Accordingly, the evidence was led on behalf
of respondents in the leading case for the purpose of both the matters.
FACTS OF THE CASES
3. According to the claim petitions preferred by petitioners in both the cases, on 30.09.2015 at about 9.30 p.m., Sh. Manoj Kumar Gupta and Sh. Ashok Chaudhari (since expired) were coming to their house on foot on correct side of the road from their duty along with few more passersby. When they reached at 80 Foota Road, Munimji Ka Bagh, Opp. CNG Pump, Narela, Delhi, in the meanwhile, one vehicle bearing no. HR69B2651 (Eicher) which was being driven by its driver/Respondent No. 1 at very high speed and in rash and negligent manner; without taking necessary precautions; without proper lookouts; violating the traffic rules and without blowing any horn, came from back side and hit against them with great force. As a result thereof, Manoj Poonam Gupta & Ors. Vs. Himanshu Sharma & Ors. & Smt. Sanju Devi & Ors. Vs. Himanshu Sharma & Ors. Page 3 of 21 MACP Nos. 5938/16 & 5935/16, FIR No. 1257/15, PS.Narela DOD: 06.06.18 Kumar Gupta and Ashok Chaudary got struck between the offending vehicle HR69B 2651 and another vehicle bearing no. HR67A9623 which was lying parked at the corner of the said road and sustained grevious/fatal injuries. Sh. Manoj Kumar Gupta was removed to SRHC Hospital, Narela, Delhi, from where he was referred to Trauma Centre, Delhi. He died during treatment in the said Centre. Sh. Ashok Chaudhari was removed to BJRM Hospital, Jahangir Puri, Delhi, where he declared brought dead. FIR No. 1257/15 U/s 279/337/304A IPC was registered at PS. Narela with regard to the accident in question.
4. It is averred in MACP No. 5938/16 that deceased Sh. Manoj Kumar Gupta was aged about 35 years old; he was Labour Contractor at A 197, Bhorgarh, Narela, Delhi and was earning approximately Rs. 30,000/ per month at the time of accident in question. He was the only bread earner of his family and his whole family was dependent upon him. It is further averred that the offending vehicle was owned by respondent no. 2 and same was insured with respondent no. 3/insurance company during the period in question. On the basis of these averments, the petitioners have claimed compensation to the tune of Rs. 50,00,000/ (under pecuniary as well as non pecuniary heads) alongwith interest @ 12% per annum from date of filing of petition till its realization, against all the respondents on the ground that they are jointly and severally liable to pay the compensation amount.
5. It is averred in MACP No. 5935/16 that deceased Ashok Chaudhari was aged 27 years old; he was working as Supervisor at Jai Balaji Shoes Factory, A197, Bhor Garh, Narela, Delhi and was earning approximately Rs. 15,000/ per month at the time of accident. Petitioners have claimed compensation to the tune of Rs. 40,00,000/ (under pecuniary as well as non pecuniary heads) alongwith interest @ 12 p.a. against all the respondents from the date of accident till its realization.
Poonam Gupta & Ors. Vs. Himanshu Sharma & Ors. & Smt. Sanju Devi & Ors. Vs. Himanshu Sharma & Ors. Page 4 of 21MACP Nos. 5938/16 & 5935/16, FIR No. 1257/15, PS.Narela DOD: 06.06.18
6. The respondents no. 1 & 2 i.e. driver and registered owner failed to file their WS in both these matters despite grant of repeated opportunities and consequently, their defence was struck off vide order dt. 27.09.16 passed by my Ld Predecessor. However, record shows that respondent no. 1 filed his WS on 24.08.17 alongwith an application U/o 8 rule 1 read with Section 151 CPC. In his said WS, he claimed that he was having valid DL as on the date of accident. He also filed copy of said DL alongwith proposed WS, copy of which was supplied to counsel for insurance company. Copy of said DL was also got verified through IO. As per report of IO, said DL was found to be valid and effective as on the date of accident.
7. Respondent no. 3/insurance company has filed separate but identical written statements in both the claim petitions on 14.07.2016, raising statutory defence as provided in Section 149(2) M.V. Act by claiming that the respondent no. 1 was driving the alleged offending vehicle without any valid and effective DL as on the date of accident and he was also charge sheeted for offences punishable U/s 467/471 IPC by the investigating agency. Hence, there is breach in the terms and conditions of insurance policy on the part of insured. However, it has not denied that the aforesaid vehicle was insured with it in the name of M/s. Bhagwati Industries (R2), vide policy no. 3379/01049693/000/01 for the period from 29.05.15 to 28.05.2016. On merits, the averments made in the claim petitions have been denied for want of knowledge and prayer has been made to dismiss the claim petitions.
8. From pleading of the parties, the following identical issues were framed in both the petitions by Ld. Predecessor vide order dated 27.09.2016 :
1) Whether the deceased Manoj Kumar Gupta and Sh. Ashok Chaudhari suffered fatal injuries in the roadside accident occurred on 30.09.15 at about 9.30 p.m. Opp. CNG Petrol Pump, Near Poonam Gupta & Ors. Vs. Himanshu Sharma & Ors. & Smt. Sanju Devi & Ors. Vs. Himanshu Sharma & Ors. Page 5 of 21 MACP Nos. 5938/16 & 5935/16, FIR No. 1257/15, PS.Narela DOD: 06.06.18 Munim Ji Bagh, 80 Foota Road, Narela, Delhi due to rash and negligent driving of R1/driver of offending vehicle no. HR69B2651 owned by M/s.
Bhgwati Industries/R2 and insured with Cholamandalm Insurance Co. Ltd./R3? OPP.
2) Whether the petitioners/Lrs of deceased are entitled to compensation as prayed for, if so to what extent and from which of the respondents?
OPP.
3) Relief.
9. In order to establish their respective claim, the petitioners in both the cases have examined three witnesses namely PW1 Ms. Poonam Gupta (widow of deceased Manoj Kumar), PW2 Ms. Sanju Devi (widow of deceased Ashok Chaudhary) and PW3 Sh Sonu Pandey (alleged eye witness). They closed their PE on 23.05.18.
10. At this juncture, it may be noted here that respondents no. 1 & 2 stopped appearing during the course of inquiry and consequently, both of them were proceeded against exparte on 23.05.18. Both the said respondents have also not led any evidence during the course of inquiry.
11. It may also be noted here that the only defence raised by R3/insurance company in its WS filed before framing of issues was that respondent no. 1 was not holding valid and effective DL as on the date of accident in question. As already noted above, the respondent no. 1 filed copy of DL issued by the office of DTO, Nagaland and claimed that there was valid and effective DL in his favour as on the date of accident. In pursuance to directions issued to IO who had filed the DAR, he submitted his report alongwith DL verification report of DTO, Tuensang, Nagaland. According to said report, DL No. NL0320100009764 was issued in the name of Himanshu Sharma in respect of Transport Vehicle and was having validity upto 01.10.15. In view of the legal position as discussed by Hon'ble Delhi High Court in the matter titled as " New India Assurance Co Ltd. Vs. Shish Ram & Ors.", Poonam Gupta & Ors. Vs. Himanshu Sharma & Ors. & Smt. Sanju Devi & Ors. Vs. Himanshu Sharma & Ors. Page 6 of 21 MACP Nos. 5938/16 & 5935/16, FIR No. 1257/15, PS.Narela DOD: 06.06.18 MAC APP No. 294/10 decided on 13.09.17, Insurance company was directed to file its legal offer in FormIII vide order dated 30.01.18 passed by this Claims Tribunal. Despite repeated directions, it failed to file its legal offer and consequently, cost of Rs. 10,000/ was imposed upon it vide order dt. 08.05.18 and it was granted last and final opportunity to file the legal offer by next date of 23.05.18. Although, insurance company sought to file its legal offer on 23.05.18 but it failed to pay the previous cost and consequently, its legal offer was not taken on record and its defence was struck off on 23.05.18. As a consequence thereof, it was not allowed to lead any evidence towards RE. Even otherwise, no evidence was to be led by it in the backdrop of the fact that it had sought to file legal offer on 23.05.18 meaning thereby that no statutory defence was available to it in these cases. It is also pertinent to note here that there were five connected claim petitions including these two claim petitions and other three connected claim petitions with regard to injuries sustained by three persons including Sonu Pandey ( PW3) have been settled by the insurance company on 23.05.18.
12. I have already heard the arguments addressed by ld counsels for the parties and have also perused the record. Both the sides were directed to submit their respective submissions in Form IV A, vide order dated 23.05.2018. However, none of them submitted the same on record till date. My findings on the issues are as under: ISSUE NO. 1 ( IN BOTH THE CASES)
13. For the purpose of this issue, the testimony of PW3 Sh Sonu Pandey is relevant. He is claimed to be an eye witness of the accident in question. He deposed in his evidence by way of affidavit ( Ex. PW3/A) that on 30.09.15 at 9.30 pm, he alongwith Sh Ashok Chaudhary was going to his house on foot on correct side of the road after finishing official work/duty, alongwith few more passersby. When they reached at 80 Foota Road, Munim Poonam Gupta & Ors. Vs. Himanshu Sharma & Ors. & Smt. Sanju Devi & Ors. Vs. Himanshu Sharma & Ors. Page 7 of 21 MACP Nos. 5938/16 & 5935/16, FIR No. 1257/15, PS.Narela DOD: 06.06.18 Ji Ka Bagh, opposite CNG Pump, Narela, Delhi, one Eicher vehicle bearing registration no. HR69B2651 which was being driven by respondent no. 1 at very high speed; in rash and negligent manner; without taking necessary precautions; while violating the traffic rules and without blowing any horn, came from back side and hit all of them with great force. Due to impact of said accident, Ashok Chaudhary and Manoj Gupta got sandwiched between Eicher vehicle bearing registration no. HR69B2651 and another vehicle bearing registration no. HR67A9623 which was parked at the corner of the road. He further deposed that he had also sustained grievous injuries and he was removed to SRHC Hospital, where his MLC was also prepared. He categorically deposed that the accident occurred due to rash and negligent driving of Eicher vehicle bearing registration no. HR69B2651 by its driver. He relied upon copy of his Aadhar Card as Ex. PW3/1. During his cross examination on behalf of insurance company, he admitted that he was an eye witness of the accident in question. He deposed that five persons were injured in the accident, out of which two persons namely Manoj Gupta and Ashok had expired. He further deposed that the accident in question occurred on 30.09.15 and the accident was caused by vehicle bearing registration no. HR 69B2651.
14. It is quite evident from the aforesaid discussion that the respondents were not able to impeach the testimonies of aforesaid witness through litmus test of cross examination. The presence of said witness at the place of accident, is not disputed from the side of respondents inasmuch as respondent no. 3 itself has given suggestion in affirmative to him that he was eye witness of the accident in question. Even otherwise, this witness himself is also shown to have sustained injuries due to the accident in question and his claim has already been settled by insurance company, as already noted above. There is nothing on record to suggest as to why this witness would depose falsely against respondent no. 1 and /or would falsely implicate him in the criminal case. Moreover, the respondents no. 1 & 2 preferred to stay away Poonam Gupta & Ors. Vs. Himanshu Sharma & Ors. & Smt. Sanju Devi & Ors. Vs. Himanshu Sharma & Ors. Page 8 of 21 MACP Nos. 5938/16 & 5935/16, FIR No. 1257/15, PS.Narela DOD: 06.06.18 from the proceedings and did not lead any evidence to controvert the testimony of this witness. Thus, there is no reason to disbelieve the uncontroverted testimony of this witness made on oath.
15. Apart from the aforesaid witness, the respondent no. 1/driver of the alleged offending vehicle was the other material witness, who could have thrown sufficient light as to how and under what circumstances, the accident in question took place. However, he did not enter into witness box and also did not examine any other witness in order to rebut the case of petitioners. Thus, an adverse inference is liable to be drawn against him for not entering into the witness box, to the effect that the accident occurred due to his rash and negligent driving of Eicher vehicle bearing registration no. HR69B2651.
16. The MLCs (which are part of DAR Ex PW1/6 colly) of both the deceased prepared at SRHC Hospital, would show that they had been removed to said hospital on 01.10.15 at 12.05 am ( accident had occurred on 30.09.15 at 9.30 pm) with alleged history of RTA. Moreover, copies of PM Reports of both the deceased prepared at BJRM Hospital ( which are part of DAR Ex. PW1/6 colly) would show that cause of death of Manoj Kumar is opined due to complications of head injury, sustained as a result of blunt force trauma to the head, consistent with the history provided, whereas the cause of death of Ashok Chaudhary is opined due to crush injury over the head produced by blunt force impact. All these documents have not been disputed by the respondents during the course of inquiry and corroborate the ocular testimony of PW3 as discussed above.
17. Not only this, mechanical inspection report dated 04.10.15 (which is part of DAR Ex PW1/6 colly) of Eicher vehicle bearing registration no. HR 69B2651, would show fresh damages i.e. its front side body and cabin frame was found damaged; its both head light were found damaged; its both side door dash window were found damaged; its front side wind screen glass was Poonam Gupta & Ors. Vs. Himanshu Sharma & Ors. & Smt. Sanju Devi & Ors. Vs. Himanshu Sharma & Ors. Page 9 of 21 MACP Nos. 5938/16 & 5935/16, FIR No. 1257/15, PS.Narela DOD: 06.06.18 found broken; its dash board and electric wiring was found damaged; its front side all wheel brake horse was found broken; its wheel and steering shaft was found dislocated etc. Likewise, mechanical inspection report dated 04.10.15 (which is part of DAR Ex. PW1/6 colly) of Truck No. HR67A9623 would show that its rear side body was found scratched; its right lower side portion was found bended; its rear right side tail light was found missing and its rear side (dala) door was found scratched and slightly bended. Both these reports have also gone unchallenged from the side of respondents and corroborate the ocular testimony of PW3 to the aforesaid extent. Furthermore, Eicher vehicle bearing registration no. HR69B2651 is found to have been seized from the place of accident as per copy of its seizure memo dt. 01.10.15 ( which is also part of DAR Ex PW1/6 colly). Same clearly shows that the accident was caused by this vehicle only.
18. Apart from above, the notice u/s. 133 M.V. Act (which is part of DAR Ex. PW1/6 colly) was served upon respondent no. 2/registered owner of the aforesaid vehicle. In reply thereto, Sh. Vikas who is the owner of M/s. Bhagwati Industries (R2), mentioned that the said vehicle was being driven by his driver namely Himanshu S/o Sh Dharam Pal (R1) on 30.09.2015 and his driver had telephonically informed him about the accident in question having taken place. Said reply also corroborates the ocular testimony of PW3 to the extent that the aforesaid vehicle was being driven by R1 at the time of accident in question.
19. 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 on the basis of pre ponderence of probabilities that Manoj Gupta and Ashok Chaudhary had sustained fatal injuries in the road accident which took place on Opp. CNG Petrol Pump, Near Munim Ji Bagh, 80 Foota Road, Narela, Delhi due to rash and negligent driving of R1/driver of offending vehicle no. HR69B2651. Thus, issue no. 1 is decided in favour of petitioners and against Poonam Gupta & Ors. Vs. Himanshu Sharma & Ors. & Smt. Sanju Devi & Ors. Vs. Himanshu Sharma & Ors. Page 10 of 21 MACP Nos. 5938/16 & 5935/16, FIR No. 1257/15, PS.Narela DOD: 06.06.18 the respondents in both these claim petitions.
ISSUE NO. 220. 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.
COMPENSATION IN MACP NO. 5938/16 LOSS OF DEPENDENCY
21. As already stated above, the claimants are the widow and children of deceased. PW1 Smt. Poonam Gupta ( widow of deceased) has deposed in her evidence by way of affidavit (Ex. PW1/A) that deceased Manoj Kumar was aged 38 years ; he was working as a labour contractor at A197, Bhor Garh, Narela, Delhi and was earning Rs. 30,000/ per month at the time of accident. She has relied upon the following documents: Sr. No. Description of documents Remarks
1. Copy of Death Certificate of Ex PW1/1 deceased
2. Copy of educational Ex. PW1/2 certificates of deceased
3. Copy of her Aadhar Card Ex PW1/3
4. Copies of Birth Certificates of Ex. PW1/4 & Ex.
children of deceased PW1/55. Copy of DAR Ex PW1/6 (colly)
22. During the course of arguments, counsel for petitioners fairly conceded that for want of any cogent and definite evidence being led by petitioners regarding monthly income of deceased, his income should be considered as per Minimum Wages Act in order to calculate the loss of dependency. He however argued that future prospects should also be Poonam Gupta & Ors. Vs. Himanshu Sharma & Ors. & Smt. Sanju Devi & Ors. Vs. Himanshu Sharma & Ors. Page 11 of 21 MACP Nos. 5938/16 & 5935/16, FIR No. 1257/15, PS.Narela DOD: 06.06.18 awarded to the petitioners as per law.
23. Apart from bald testimony of PW1 that deceased was earning Rs. 30,000/ per month at the time of accident, no documentary proof has been brought on record to show that either deceased was working as labour contractor at Bhor Garh, Narela or that he was earning Rs. 30,000/ per month at the time of accident. However, it may be noted that deceased was 10 th class passed, in view of copies of his educational certificates Ex. PW1/2 (colly). Hence, the monthly income of deceased has to be assessed as that ofMatriculate under Minimum Wages Act applicable during the period in question. The Minimum Wages of Matriculate were Rs. 10,998/ per month. The minimum wages of Matriculate were revised to Rs. 11,154/- w.e.f. 01.10.2015. The accident in question had occurred on 30.09.2015 i.e. just one day before the date from which minimum wages were revised by the government. In these facts and circumstances, I am inclined to take the minimum wages at the rate of Rs. 11,154/- in order to calculate loss of income under this head. (Reliance placed on unreported decision in the matter titled as "THE ORIENTAL INSURANCE CO.LTD. Vs. CHHOTEY LAL & ORS. ", in MAC. APP. 1074/2016 decided on 15.05.2017 by Hon'ble Delhi High Court.).
24. PW1, who is widow of deceased, has categorically testified that age of deceased was 38 years at the time of accident. In copy of educational Certificate (Ex. PW1/2), the date of birth of deceased Manoj Kumar is recorded as 17.03.1970. The date of accident is 30.09.15. Accordingly, the age of deceased comes out to 45 years 6 months and 13 days at the time of accident. Hence, the multiplier of 13 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.
Poonam Gupta & Ors. Vs. Himanshu Sharma & Ors. & Smt. Sanju Devi & Ors. Vs. Himanshu Sharma & Ors. Page 12 of 21MACP Nos. 5938/16 & 5935/16, FIR No. 1257/15, PS.Narela DOD: 06.06.18
25. Considering the fact that deceased is claimed to be self employed and there being no cogent evidence that he was having permanent job, future prospects @ 25% 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.
26. Considering the fact that there were three dependents at the time of accident, there has to be deduction of 1/3rd as held in the case of Pranay Sethi mentioned supra. Thus, the total of loss of dependency would come out to Rs. 14,50,020/ (Rs. 11,154 X 2/3 X 125/100 X 12 X 13). Hence, a sum of Rs. 14,50,020/ is awarded under this head in favour of the petitioners.
LOSS OF LOVE & AFFECTION
27. After the celebrated judgment of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors.", mentioned supra, 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
28. In view of celebrated judgment of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors.", mentioned supra delivered by Constitutional Bench of Hon'ble Apex Court, a sum of Rs. 40,000/ is awarded in favour of petitioner no. 1 Smt. Poonam Gupta (being widow of deceased) towards loss of consortium.
Poonam Gupta & Ors. Vs. Himanshu Sharma & Ors. & Smt. Sanju Devi & Ors. Vs. Himanshu Sharma & Ors. Page 13 of 21MACP Nos. 5938/16 & 5935/16, FIR No. 1257/15, PS.Narela DOD: 06.06.18 LOSS OF ESTATE & FUNERAL EXPENSES
29. 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. 14,50,020/
2. Loss of Consortium Rs. 40,000/
3. Loss of Estate & Funeral Expenses Rs. 30,000/ Total Rs. 15,20,020/ Rounded Off to Rs. 15,20,500/ COMPENSATION IN MACP NO. 5935/16 LOSS OF DEPENDENCY
30. As already stated above, the claimants are the parents, widow and children of deceased. PW2 Smt. Sanju Devi ( widow of deceased Ashok Chaudhary) has deposed in her evidence by way of affidavit (Ex. PW2/A) that deceased Ashok Chaudhary was aged 27 years ; he was working as a supervisor in Nitin Footwear factory situated at A197, Bhor Garh, Narela, Delhi and was earning Rs. 15,500/ per month at the time of accident. She has relied upon the following documents: Sr. No. Description of documents Remarks
1. Copy of Death Certificate of Ex PW2/1 deceased
2. Salary Certificate dt. 30.10.15 Ex. PW2/3 of deceased
3. Copy of her Aadhar Card Ex PW2/4
4. Copy of Birth Certificate of Ex. PW2/5 petitioner no. 2
5. Copies of Voter I Cards of Ex PW2/6 and Ex.
petitioners no. 4 & 5 PW2/7 Poonam Gupta & Ors. Vs. Himanshu Sharma & Ors. & Smt. Sanju Devi & Ors. Vs. Himanshu Sharma & Ors. Page 14 of 21MACP Nos. 5938/16 & 5935/16, FIR No. 1257/15, PS.Narela DOD: 06.06.18
6. Copy of DAR Ex PW/8 (colly)
31. During the course of arguments, counsel for petitioners fairly conceded that for want of any cogent and definite evidence being led by petitioners regarding monthly income of deceased, his income should be considered as per Minimum Wages Act in order to calculate the loss of dependency. He however argued that future prospects should also be awarded to the petitioners as per law.
32. Apart from bald testimony of PW2 that deceased was earning Rs. 15,500/ per month at the time of accident, no documentary proof has been brought on record to show that either deceased was working as Supervisor in any such factory or that he was earning Rs. 15,500/ per month at the time of accident. Although, one Salary Certificate dated 30.10.15 purportedly issued by Proprietor of Nitin Footwear ( Ex. PW2/3) is relied by petitioners but they have failed to examine the author of said document. The petitioners have failed to furnish any reason for not examining the said witness for proving the said Salary Certificate. Hence, the said document cannot be considered while assessing the monthly income of deceased in order to calculate the loss of dependency. It is also relevant to note that the petitioners have not filed any document concerning educational qualification if any of deceased. Hence, the monthly income of deceased has to be assessed as that of unskilled worker under Minimum Wages Act applicable during the period in question. The Minimum Wages of unskilled worker were Rs. 9048/ per month. The minimum wages of unskilled were revised to Rs. 9178/- w.e.f. 01.10.2015. The accident in question had occurred on 30.09.2015 i.e. just one day before the date from which minimum wages were revised by the government. In these facts and circumstances, I am inclined to take the minimum wages at the rate of Rs. 11,154/- in order to calculate loss of income under this head. (Reliance placed on unreported decision in the matter titled as "THE ORIENTAL INSURANCE CO.LTD. Vs. CHHOTEY LAL & ORS. ", in MAC. APP. 1074/2016 decided on 15.05.2017 by Hon'ble Delhi High Court.).
Poonam Gupta & Ors. Vs. Himanshu Sharma & Ors. & Smt. Sanju Devi & Ors. Vs. Himanshu Sharma & Ors. Page 15 of 21MACP Nos. 5938/16 & 5935/16, FIR No. 1257/15, PS.Narela DOD: 06.06.18
33. PW2, who is widow of deceased, has categorically testified that age of deceased was 27 years at the time of accident. Said part of her testimony remained unchallenged from the side of respondents. Even in the copy of PM Report of deceased Ashok Chaudhary ( which is part of DAR Ex. PW1/6 colly), his age is mentioned as 28 years. For want of any evidence to the contrary being led from the side of respondents, I am inclined to accept the age of deceased to be 28 years as on the date of accident. Hence, the multiplier of 17 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.
34. Considering the fact that deceased is claimed to be self employed and there being no cogent evidence that he was having permanent job, future prospects @ 40% (the aged of deceased being less than 40 years at the time of accident) 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.
35. Considering the fact that there were four dependents ( there being no cogent evidence showing that petitioner no. 4 i.e. father of deceased was also dependent upon him at the time of accident), there has to be deduction of 1/4th as held in the case of Pranay Sethi mentioned supra. Thus, the total of loss of dependency would come out to Rs. 19,65,930/ (rounded off) (Rs. 9178/ X 3/4 X 140/100 X 12 X 17). Hence, a sum of Rs. 19,65,930/ is awarded under this head in favour of the petitioners.
Poonam Gupta & Ors. Vs. Himanshu Sharma & Ors. & Smt. Sanju Devi & Ors. Vs. Himanshu Sharma & Ors. Page 16 of 21MACP Nos. 5938/16 & 5935/16, FIR No. 1257/15, PS.Narela DOD: 06.06.18 LOSS OF LOVE & AFFECTION
36. After the celebrated judgment of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors.", mentioned supra, 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
37. In view of celebrated judgment of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors.", mentioned supra delivered by Constitutional Bench of Hon'ble Apex Court, a sum of Rs. 40,000/ is awarded in favour of petitioner no. 1 Smt. Sanju Devi (being widow of deceased) towards loss of consortium.
LOSS OF ESTATE & FUNERAL EXPENSES
38. 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. 19,65,930/
2. Loss of Consortium Rs. 40,000/
3. Loss of Estate & Funeral Expenses Rs. 30,000/ Total Rs. 20,35,930/ Rounded Off to Rs. 20,36,000/
39. Now, the question which arises for determination is as to which of the respondents is liable to pay the compensation amount. Respondent no. 3/insurance company did not adduce any evidence since it had no statutory defence and its defence was struck off for the reasons already noted above. It Poonam Gupta & Ors. Vs. Himanshu Sharma & Ors. & Smt. Sanju Devi & Ors. Vs. Himanshu Sharma & Ors. Page 17 of 21 MACP Nos. 5938/16 & 5935/16, FIR No. 1257/15, PS.Narela DOD: 06.06.18 is nowhere the case of insurance company that any term or condition of insurance policy was breached/violated by insured. Keeping in view the existence of valid insurance policy, respondent no. 3/insurance company becomes liable to pay the compensation amount, as insurance company is liable to indemnify the insured. Issue no. 2 is decided in favour of the petitioners and against the respondents in both these claim petitions.
ISSUE NO. 3 RELIEF
40. In view of my finding on issues no. 1 and 2, I award a sum of Rs. 15,20,500/ (including interim award amount if any) in MACP No. 5938/16 alongwith interest @ 9% per annum w.e.f date of filing petition i.e. 03.11.2015 in favour of petitioners and against the respondents jointly and severally. I also award a sum of Rs. 20,36,000/ (including interim award amount if any) in MAC Petition no. 5935/16, alongwith interest @ 9% per annum w.e.f. date of filing of petitions i.e. 03.11.2015 till the date of realization, in favour of the petitioners and against the respondents jointly and severally. Issue no. 3 is decided accordingly. (Reliance placed on judgment "Oriental Insurance Company Ltd. Vs. Sangeeta Devi & Ors" bearing MAC. APP. 165/2011 decided on 22.02.2016).
APPORTIONMENT
41. Statements of Lrs of deceased/petitioners in terms of Clause 27 MCTAP were recorded on 23.05.18. Having regard to the facts and circumstances of the case and in view of their statements, it is hereby ordered that out of the awarded amount in MACP No. 5938/16, the petitioner no. 1 namely Smt. Poonam Gupta shall be entitled to share amount of Rs. 8,20,500/ alongwith proportionate interest and the petitioners no. 2 & 3 shall be entitled to remaining share amount of Rs. 7,00,000/ alongwith proportionate interest in equal shares.
42. Out of share amount of petitioner no. 1, a sum of Rs. 1,00,000/ (One Lakh Only) is directed to be immediately released to her through her Poonam Gupta & Ors. Vs. Himanshu Sharma & Ors. & Smt. Sanju Devi & Ors. Vs. Himanshu Sharma & Ors. Page 18 of 21 MACP Nos. 5938/16 & 5935/16, FIR No. 1257/15, PS.Narela DOD: 06.06.18 Saving Bank Account No. 058602101660107 with Corporation Bank, Bawana Road Narela Branch and remaining amount is directed to be kept in the form of FDRs in the multiples of Rs.50,000/ each for one year, two years three years and so on and so forth.
43. The entire share amounts of petitioners no. 2 & 3 shall be kept in the form of FDRs till they attain the age of majority. However, monthly interest is allowed to be withdrawn by them through their mother/natural guardian to be used for their welfare and upbringment.
44. It is hereby ordered that out of the awarded amount in MACP No. 5935/16, the petitioner no. 1 namely Smt. Sanju Devi shall be entitled to share amount of Rs. 10,00,000/ alongwith proportionate interest and the petitioners no. 2 & 3 shall be entitled to remaining share amount of Rs. 4,00,000/ each alongwith proportionate interest, the petitioner no. 4 namely Sh Sukhri Choudhary shall be entitled to share amount of Rs. 1,00,000/ alongwith proportionate interest and the petitioner no. 5 namely Smt. Kusumi Devi shall be entitled to share amount of Rs. 1,36,000/ alongwith proportionate interest.
45. Out of share amount of petitioner no. 1, a sum of Rs. 1,50,000/ (One Lakh & Fifty Thousand Only) is directed to be immediately released to her through her Saving Bank Account No. 1139000100136636 with PNB Lilawachh, District Rohtash Branch (Bihar) having IFSC Code No PUNB 0113900 and remaining amount is directed to be kept in the form of FDRs in the multiples of Rs.50,000/ each for one year, two years three years and so on and so forth.
46. The entire share amounts of petitioners no. 2 & 3 shall be kept in the form of FDRs till they attain the age of majority. However, monthly interest is allowed to be withdrawn by them through their mother/natural Poonam Gupta & Ors. Vs. Himanshu Sharma & Ors. & Smt. Sanju Devi & Ors. Vs. Himanshu Sharma & Ors. Page 19 of 21 MACP Nos. 5938/16 & 5935/16, FIR No. 1257/15, PS.Narela DOD: 06.06.18 guardian to be used for their welfare and upbringment.
47. Out of share amount of petitioner no. 4, a sum of Rs. 25,000/ (Twenty Five Thousand Only) is directed to be immediately released to him through his Saving Bank Account No. 36148877181 with SBI Rohini Court Branch having IFSC Code No SBIN0010323 and remaining amount is directed to be kept in the form of FDRs in the multiples of Rs.25,000/ each for 6 months, 12 months, 18 months and so on and so forth.
48. Out of share amount of petitioner no. 5, a sum of Rs. 25,000/(Twenty Five Thousand Only) is directed to be immediately released to her through her Saving Bank Account No. 36148821207 with SBI Rohini Court Branch having IFSC Code No SBIN0010323 and remaining amount is directed to be kept in the form of FDRs in the multiples of Rs.25,000/ each for 6 months, 12 months, 18 months and so on and so forth.
49. All the FDRs to be prepared as per aforesaid directions, shall be subject to the following conditions:
(i) The interest on the fixed deposits be paid monthly to the claimants.
(ii) Original fixed deposit receipts be retained by the bank in safe custody. However, a passbook of the FDRs alongwith photocopies of the FDRs be given to the claimants/petitioners. At the time of maturity, the fixed deposit amount shall be automatically credited in the savings bank accounts of the Claimants/petitioners.
(iii) No cheque book/Debit Card be issued to the claimants/petitioners without permission of the Court.
(iv) No loan, advance or withdrawal be allowed on the fixed deposits without permission of the Court.
(v) The Bank shall not permit any joint name(s) to be added in the savings bank accounts or fixed deposit account of the victims.
(vi) Half yearly statement of account be filed by the Bank before the Tribunal.
Poonam Gupta & Ors. Vs. Himanshu Sharma & Ors. & Smt. Sanju Devi & Ors. Vs. Himanshu Sharma & Ors. Page 20 of 21MACP Nos. 5938/16 & 5935/16, FIR No. 1257/15, PS.Narela DOD: 06.06.18
50. During the course of hearing of final arguments, all the claimants submitted that they are entitled to exemption from deduction of TDS as their annual income do not exceed from the taxable limit prescribed under the law. They have also furnished Form Nos. 15G/15H on record.
51. Respondent no. 3, being insurer of the offending vehicle, is directed to deposit the award amount with SBI, Rohini Courts branch within 30 days as per above order, failing which insurance company 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 also to counsel for the insurance company alongwith original Form Nos. 15 G/15H of the claimants (after retaining photocopies thereof on record), for compliance. Copy of this award alongwith one photographs each, specimen signatures, copies of bank passbooks and copies of residence proof of petitioners be sent to Nodal Officer of SBI, Rohini Court, Branch, Delhi for information and necessary compliance. Form V in terms of MCTAP is annexed herewith as AnnexureA. Copy of order be also sent to concerned M.M and DLSA as per clause 31 and 32 of MCTAP. Signed copy of this Award be placed on the judicial record of MAC Petition No. 5935/16, as per the rules.
Announced in the open
Court on 06.06.2018 (VIDYA PRAKASH)
Judge MACT2 (North)
Rohini Courts, Delhi
Poonam Gupta & Ors. Vs. Himanshu Sharma & Ors. & Smt. Sanju Devi & Ors. Vs. Himanshu Sharma & Ors. Page 21 of 21