Delhi District Court
Minati Pasupalak & Ors vs Mahesh Yadav & Ors on 30 November, 2021
IN THE COURT OF DR. SUMEDH KUMAR SETHI, PO : MACT01
(SOUTHWEST DISTRICT), DWARKA COURTS: NEW DELHI
MACP No. 1894/16
Minati Pasupalak & Ors Vs Mahesh Yadav & Ors
CNR No.DLSW010051082016
1. Smt. Minati Pasupalak (Wife)
W/o Late Sh. G. P. Pasupalak
Mobile No. 8860486214
PAN : ASBPP8564B
2. Chinmay Kumar Pasupalak (Son)
S/o Late Sh. G. P. Pasupalak
Mobile No. 8860486214
PAN : CESPP6406B
3. Vismay Kumar Pasupalak (Son)
S/o Late Sh. G. P. Pasupalak
Mobile No. 9871788782
PAN : CJDPP3311F
All above resident of :
H. No. H389D, Raj NagarII
Gali no. 4, Palam Colony,
Delhi. .... Petitioners
Vs.
1. Mahesh Yadav (Driver cum Owner)
S/o Sh. Daulat Ram Yadav
R/o A27, Siddharth Kunj Appt.
Plot no. 17, Sector7,
Dwarka, Delhi75
Mobile No. 9868655584
MACP No. 1894/16 Minati Pasupalak & Ors. vs Mahesh Yadav & Ors. 1 of 25
2. United India Insurance Company Ltd. (Insurer)
Having its Office at :
251, LSCIII, Vardhman City Complex
Sec - 7, Dwarka South West Delhi 110075.
Nodal Officer : Nirmal Arvind Kerketta
Mobile No. 9643606193
[email protected]
....Respondents
Date of institution of the case 03.08.2016
Date on which, judgment have been reserved 18.11.2021
Date of pronouncement of judgment 30.11.2021
JUDGMENT:
1. The present claim petition u/s 166 of Motor Vehicle Act, 1988 for grant of compensation qua the death of deceased Ganesh Prasad Pasupalak caused in a road accident on 15.05.2016 has been filed on behalf of petitioners Smt. Minati Pasupalak & Ors. against respondents Mahesh Yadav & Ors.
2. CLAIM a. Brief facts as made out from the material on record are that on 15.05.2016 at about 07.45 am, Sh. Ganesh Prasad Pasupalak (since deceased) was riding on his scooty bearing no. DL9SN9870 and going towards Sector9, Dwarka.
b. When he reached at red light near DTC Depot, Sec8, Dwarka, Delhi and was taking right turn with giving proper indicator, then all of sudden a car bearing No. CH04J4668 which was being driven by its driver namely Mahesh Yadav in a very rash and negligent manner, hit the scooty of deceased with great force. Due to this accident, deceased G. P. Pasupalak fell from his scooty on the road and sustained grievous / fatal injuries.
MACP No. 1894/16 Minati Pasupalak & Ors. vs Mahesh Yadav & Ors. 2 of 25 c. After the accident, deceased was first evacuated to ARTEMIS Hospital, Sector20, Dwarka, New Delhi, where the doctors of the said hospital declared that he has received injuries in his head. Thereafter, he was shifted to its main branch at Gurgaon where he could not survive and succumbed on 19.05.2016 during the course of treatment.
d. In this regard a FIR no. 302/2016, u/s 279/337 IPC ( 304A IPC was added to chargesheet) was lodged on 15.05.2016 in PS Dwarka South against respondent no. 1 Mahesh Yadav.
e. It is further stated that accident was caused solely due to rash and negligent driving of respondent no. 1, who was driving the offending vehicle and the said vehicle was insured with respondent no. 2 Insurance Company. f. It is stated that deceased was 55 years of age at the time of accident and was working as Senior Manager with M/s Genpact India Pvt. Ltd and was getting gross salary of ₹1,86,377/ per month. g. It is stated by petitioner No. 1 i.e. wife of the deceased in her statement regarding financial status, needs and liabilities that she is house wife having no source of income. Further, petitioner no. 2 was studying M. Tech and was not having any source of income. Further, petitioner no. 3 Vismay Kumar Pasupalak was preparing for competitive examinations and was also not having any source of income. It is also stated that all the petitioners were totally dependent upon the income of deceased and due to the sudden death of deceased, entire family has suffered a great mental, physical and financial loss. h. It has been prayed that an award for a sum of ₹10,00,00,000/ alongwith interest @ 18% p.a. from the date of filing of the present petition till realization may be passed in favour of the petitioners and against the respondents.
3. DEFENCES a. The perusal of the record reveals that no WS has been filed on behalf of R1.
MACP No. 1894/16 Minati Pasupalak & Ors. vs Mahesh Yadav & Ors. 3 of 25 b. WS was filed on behalf of Respondent No. 2 / United India Insurance Co. Ltd. wherein it was stated that the deceased was not wearing helmet and the cause of death was severe traumatic brain injury. Thus, he died due to his own negligence. It was further averred that amount of Rs.10,00,00,000/ was highly exaggerated. However, the offending vehicle i.e. CH04J4668 (Ford Fiesta Car) was insured with the respondent Insurance Company Vide Private Car Package Policy no. 0425823115P103986259 Valid From 19.07.2015 to 18.07.2016. It is further averred that liability, if any, is subject to terms and conditions of the policy.
c. In the written submissions filed on behalf of R3, it was added that as per the site plan, deceased was turning his Scooty from the wrong lane side and the deceased himself was negligent when he was driving his scooty without helmet. The postmortem report also revealed that deceased had died due to head injury and this fact shows that he was not wearing helmet at the time of alleged accident and it was a case of contributory negligence on the part of the deceased. Further, it is submitted that if any compensation award is passed in favour of the petitioner, then atleast 25% of a contributory negligence should be taken against the deceased and may kindly be deducted from the offered amount. d. It has been further contended that petitioner no. 2 & 3 are major sons of the deceased as well as are highly qualified and self dependent, hence, both the sons are not entitled to get any compensation from the insurance company. Further, while assessing personal expenses, since major son cannot be considered as dependent, 50% of the total income of the deceased has to be deducted towards personal expenses. R2 / insurance company has relied upon the case titled as Reliance General Insurance Co. Ltd. Vs M. Jayalakshmamma & Ors1, in support of its contention.
e. Later on, R2 /insurance company has filed additional written submissions showing the guidelines of R.B.I. with regard to the interest of fixed deposit i.e. about 5.1 per annum. It is contended that in this regard, the Hon'ble 1 2018 ACJ1730 MACP No. 1894/16 Minati Pasupalak & Ors. vs Mahesh Yadav & Ors. 4 of 25 Supreme Court of India had passed an order reducing the interest rate from 12% to 6% per annum in the case titled Inayath Raasab Attar Vs. Shatavva2
4. On the basis of the pleadings of the parties, the following issues were framed on 14.12.2016 by one of the Ld. Predecessors of this court.
ISSUES :
1. Whether Sh. Ganesh Prasad Pasupalak sustained fatal injuries in a motor vehicle accident dt.15.05.2016 caused due to rash or negligent driving of vehicle (Car) No. CH 04AJ4668 being driven & owed by Respondent No. 1 Mahesh Yadav and insured by Respondent No. 2 United India Insurance Company Ltd.? ...OPP
2. Whether the petitioners are entitled to claim compensation, if so, what amount and from whom ? ...OPP
3. Relief.
5. In support of their case, petitioners have examined petitioner no. 1 Smt. Minati Pasupalak as PW1, SI Sumer Singh as PW2 and Ms. Seema Bhola, Sr. Manager (HR), Genpact, Haryana as PW3. Thereafter, PE was closed on behalf of petitioners.
6. In their evidence, respondents have not examined any witness on their behalf. Accordingly, RE was closed on behalf of respondents vide order dated 05.08.2019 passed by the Ld. Predecessor of this court.
7. Arguments have been heard. Material on record perused. Submissions considered.
It is pertinent to mention here that arguments have not been addressed in this case on behalf of R1, despite opportunity being given.
2 Civil appeal no. 2526 of 2012 held on 19.02.2020.
MACP No. 1894/16 Minati Pasupalak & Ors. vs Mahesh Yadav & Ors. 5 of 25
8. The issuewise findings are as under :
ISSUE No. 1Whether Sh. Ganesh Prasad Pasupalak sustained fatal injuries in a motor vehicle accident dt.15.05.2016 caused due to rash or negligent driving of vehicle (Car) No. CH 04AJ4668 being driven & owed by Respondent No. 1 Mahesh Yadav and insured by Respondent No. 2 United India Insurance Company Ltd.? ...OPP a. The onus to prove this issue was upon the petitioners and in order to discharge the said onus, the petitioners have examined PW2 SI Sumer Singh who was an eye witness in the present case. He deposed that on 15.05.2016, at about 07.45 am, when he was going on his motorcycle to Sector09, Dwarka and reached near Baghdola DTC Depot at Sector8, Dwarka, he saw one scooterist was going ahead of him and was hit by a car driver from behind. As a result of impact, the scooterist fell down on the road. Later on, he came to know that the injured was Ganesh and used to reside in his colony. He, thereafter, made a call at 100 number from his mobile and took the injured to the Artemis Hospital alongwith the driver of the offending vehicle. He then, went to the house of the injured for information.
b. In his cross examination, PW2 admitted that FIR was not registered on his statement. Further, he denied that injured / deceased was his relative or that he was not eye witness to the accident. c. Firstly, no suggestion has been given to this witness on behalf of the insurance company regarding the manner in which the accident took place. Therefore, there is no reason to disbelieve the version of witness and the same remains uncontroverted. Mere blanket suggestions have been given to the witness that he was not present on the spot and that he is not eye witness to the accident. However, it is not as if the insurance company has tried to lead any evidence by calling the duty record of the eye witness from his superior authorities which would show his presence elsewhere at the time of the accident. In this regard, it is MACP No. 1894/16 Minati Pasupalak & Ors. vs Mahesh Yadav & Ors. 6 of 25 noteworthy that the witness being a police officer, such record would have been easily available. Moreover, even if it is apparent that the scooty of the deceased was hit while he was going to make turn, as is seen from the site plan, then also, it is apparent that negligence was on part of the driver of offending vehicle only as near a turn, any vehicle driver should as it is drive more cautiously and should slow down which does not appear to be the case in the present matter. d. Thus, the involvement of the offending vehicle and the manner in which the accident took place as alleged by the petitioners remains undisputed. Nothing material has come on record which could assail the credibility or trustworthiness of the petitioners' version. e. Hence, in view of the above discussion & observations and having regard to the fact and circumstances of the present case, it is evident that deceased Ganesh Prasad Pasupalak sustained fatal injuries in a motor vehicle accident dated 15.05.2016 due to use or involvement of vehicle no. CH04AJ 4668, which was being driven & owned by R1 Mahesh Yadav. and insured with R2 United India Insurance Co. Ltd. at the time of accident. Accordingly, issue no.1 is decided in favour of the petitioner and against the respondents.
9. ALLEGED CONTRIBUTORY NEGLIGENCE a. It is alleged on behalf of the insurance company that no helmet was seized from the spot and therefore, it can be deciphered that the deceased was not wearing any helmet at the time of accident. So far as the helmet is concerned, there is no suggestion to the the eye witness to the effect that the deceased was not wearing helmet at the time of the accident. The insurance company has not led any evidence to the contrary. The insurance company has not even examined the IO to conclusively establish that the deceased was not wearing any helmet at the time of the accident. In this regard, it has been held by the Hon'ble Supreme Court of India in New India Assurance Co. Ltd. vs Sharda Devi & Ors3 that:
3 2013 ACJ 652.
MACP No. 1894/16 Minati Pasupalak & Ors. vs Mahesh Yadav & Ors. 7 of 25 ''4. The breach of rules in driving a two wheeler without helmet and driving it with three pillion riders, by itself cannot be treated as composite or contribution to negligence on his part.'' It has also been held by the Hon'ble Supreme Court of India in India Lease Development Ltd. vs Savita and others4 that:
''8. Simply because the deceased was not wearing a helmet and violated the terms of the Motor Vehicles Act, it cannot be said that he contributed to the accident.'' Now firstly, in the present case, merely because no helmet was seized by the police from the spot, it cannot be said that the deceased was not wearing any helmet at the time of the accident. No suggestion has been given to eye witness to this effect. Secondly, even if it is assumed for a moment that such helmet was not there, no contributory negligence can be readily inferred in the absence of any specific allegation or suggestion to this effect. It is noteworthy that contributory negligence is not something which can be implied but has to be proved expressly by the one who alleges so. The insurance company is unable to show from the circumstances in the present case any negligence on part of the deceased. Even the eye witness has not been cross examined on behalf of R1 and R2 and it is the driver of the offending vehicle who could have shed more light on the circumstances which contributed to the accident. Thus, no deduction is liable to be made on the ground of alleged contributory negligence from the compensation that may be awarded on this ground alone.10. ISSUE No. 2
Whether the petitioners are entitled to claim compensation, if so, what amount and from whom ? ...OPP a. The onus to prove this issue was upon the petitioners and in order to 4 2013 A C J 2038.
MACP No. 1894/16 Minati Pasupalak & Ors. vs Mahesh Yadav & Ors. 8 of 25 discharge the said onus the petitioners have examined PW1 Smt. Minati Pasupalak (petitioner no.1 / wife of deceased), who has filed her evidence by way of affidavit (Ex. PW1/A), wherein it has been stated that her deceased husband Sh. Ganesh Prasad Pasupalak was working as Senior Manager with M/s Genpact India Pvt. Ltd. And was getting a salary of Rs 1,86,377/ per month, which was also increasing from time to time. She has also proved Salary slips of deceased as Ex. PW1/7 and ITR certificate filed by deceased as Ex.PW1/9 in support of her averments.
b. Further, it was contended that petitioner no. 1 Minati Pasupalak as well as her sons i.e. petitioner no. 2 Chinmay Kumar Pasupalak and petitioner no. 3 Vismay Kumar Pasupalak who are unmarried were dependent upon deceased. c. PW1 further relied upon documents i.e. Ex.PW1/1 to Ex. PW1/13. d. PW1 also deposed in her financial status, needs and liabilities that she had also spent a sum of ₹1,00,000/ in the last rites of deceased. e. She denied the suggestion that she has not suffered any financial loss due to the death of her husband.
f. Thereafter, PE was closed on behalf of petitioners. g. Hence, in view of the above and in view of the material and evidence record, petitioners, being the LRs of the deceased - Ganesh Prasad Pasupalak, have become entitled to claim compensation for the death of said deceased in the abovesaid accident.
h. Quantum of compensation payable to the petitioners/LRs of deceased Ganesh Prasad Pasupalak, is ascertained as under:
11. AGE & MULTIPLIER As per the PAN card of the deceased Ganesh Prasad Pasupalak on record, his DOB is 14.09.1960. Therefore, his age at the time of the accident would have been '55'. Hence, the multiplier of '11' is taken in this case. The multiplier of 9 as contended to be applicable by the insurance company cannot be MACP No. 1894/16 Minati Pasupalak & Ors. vs Mahesh Yadav & Ors. 9 of 25 accepted for the simple reason that the deceased had not completed 56 years of age at the time of the accident.
12. NUMBER OF DEPENDENTS a. In the present case, in view of the material/evidence on record, it is evident that at the time of accident, the deceased - Ganesh Prasad Pasupalak was married and has left behind three LRs i.e. petitioner no.1 Smt. Minati Pasupalak(wife), petitioner no. 2 Chinmay Kumar Pasupalak (son), petitioner no. 3 Vismay Kumar Pasupalak (son).
b. So far as both sons of the deceased are concerned, both sons are major and as per their statement regarding financial status, needs and liabilities, Petitioner no. 3 Chinmay was studying M. Tech whereas petitioner no. 4 Vismay was preparing for competitive exams and are not working anywhere. In this regard, reliance has been placed by the insurance company on the judgment of the Karnataka High Court in Reliance General Insurance Co. Ltd. Vs M. Jayalakshmamma & Ors, to contend that the major sons of the petitioner should not be considered as dependent upon the deceased. c. However, the Tribunal is of the opinion that dependency is a relative term and may include much more than mere survival. A person having his own earning can also be dependent upon another who is having higher income for running their household as it is natural for a household having higher earning to have higher expenditure as well. Likewise, where children in the household are involved in higher studies till an advance stage, they remain dependent upon their parents till they become established in their careers. In the present case also, it is not as if the children of the deceased are studying in advance courses then they cannot be dependent upon their father who is the earning member of their family whereas they are unemployed for the time being. Even if the sons are considered employment worthy, then in such cases where the father is having much more income, then the sons could not have been the main contributor to the household. To hold otherwise would be an aversion to all parents who do not push their MACP No. 1894/16 Minati Pasupalak & Ors. vs Mahesh Yadav & Ors. 10 of 25 children into employment the moment they attained majority and keep the responsibility of running their households on their own shoulders while giving time and resources to their children to get qualified and establish the careers of their own choice. In National Insurance Company Limited vs Birender and Ors.5, it was held that :
"It is thus settled by now that the legal representatives of the deceased have a right to apply for compensation. Having said that, it must necessarily follow that even the major married and earning sons of the deceased being legal representatives have a right to apply for compensation and it would be the bounden duty of the Tribunal to consider the application irrespective of the fact whether the concerned legal representative was fully dependant on the deceased and not to limit the claim towards conventional heads only".
It was also observed by the Hon'ble Apex Court that in the said case, the evidence on record would suggest that the claimants were working as agricultural labourers on contract basis and were earning meagre income between Rs.1,00,000/ and Rs.1,50,000/ per annum. In that sense, they were largely dependent on the earning of their mother and in fact, were staying with her, who met with an accident at the young age of 48 years. It was also observed that if the dependent family members are 2 to 3, as in this case, the deduction towards personal and living expenses of the deceased should be taken as one third (1/3rd). d. If an analogy was to be drawn with the facts of the present case, then it is discernible from the material on record that one of the sons of the petitioner was pursuing M. Tech course at the time of his examination regarding needs and liabilities in 2019 and the other was preparing for competitive examinations. It goes without saying that their level of dependency on their father would have been much more when the accident occurred in 2015. They are still 5 CIVIL APPEAL NOs. 242243 with 240 OF 2020 decided by Hon'ble Supreme Court of India on 13.01.2020.
MACP No. 1894/16 Minati Pasupalak & Ors. vs Mahesh Yadav & Ors. 11 of 25 residing at the address of their late father. The income - worthiness of the sons is minuscule as compared to what was being earned by their father. The insurance company has not led any evidence through any investigator to show that the sons of the petitioner were having independent income. Therefore, this contention of the insurance company is liable to be rejected. Thus, the total number of dependents in the present case would be 3.
e. In these circumstances, in view of the law/guidelines laid down in the case titled as Sarla Verma & Ors. Vs. DTC & Anr 6 one third (1/3rd) of the income of the deceased is liable to be deducted from the total income towards personal and living expenses of the deceased.
13. INCOME AND PROFESSION a. In the instant case, PW1 Smt. Minati Pasupalak (wife /LR of deceased) deposed that at the time of accident, her deceased husband was working as Senior Manager with M/s Genpact India Pvt. Ltd at Gurgaon and was getting a salary of Rs.1,86,377/ per month, which was also increasing from time to time. Further, she has also placed on record Appointment letter of deceased as Ex. PW1/5, I Card issued by the employer as Ex. PW1/6, Salary Slips of her husband as Ex. PW1/7, Pan Card as Ex. PW1/8 and ITR Certificate as Ex. PW1/9 of the petitioner.
b. As per the salary slip for the month of April,2016, the deceased was having gross pay of ₹1,86,377/ out of which ₹63451/ were being deducted. The break up of gross pay is as follows:
• Basic : ₹91,105/
• HRA : ₹54,663/
• SPL ALL : ₹36,442/
• Conv. Allow : ₹4,167/
The break up of deductions is as follows:
6 reported as (2009 )6SCC 121
MACP No. 1894/16 Minati Pasupalak & Ors. vs Mahesh Yadav & Ors. 12 of 25
• PF : ₹10933/
• Income Tax : ₹34,287/
• VPF : ₹18,221/
• Haryana LWF : ₹10/
c. The contention on part of insurance company is that only basic pay
and HRA of the deceased ought to be considered for calculation of loss of dependency. On the other hand, the petitioners have sought calculation on the basis of the entire gross salary. Neither view is correct. The counsel for the petitioner has rightly relied upon the case of Sebastian Lakra and others vs. National Insurance Company Limited and another7 that :
"As far as the amounts of pension and gratuity are concerned, these are paid on account of the service rendered by the deceased to his employer. It is now an established principle of service jurisprudence that pension and gratuity are the property of the deceased. They are more in the nature of deferred wages. The deceased employee works throughout his life expecting that on his retirement he will get substantial amount as pension and gratuity. These amounts are also payable on death,whatever be the cause of death. Therefore, applying the same principles, the said amount cannot be deducted".
In this regard, it has also been held that in the case of Sunil Sharma Vs Bachitar Singh8 that :
"Based on the aforementioned judgments, we are of the view that deductions made by the Tribunal on account of HRA, CCA and medical allowance are done on an incorrect basis and should have been taken into consideration in calculation of the income of the deceased. Further, deduction towards EPF and GIS should also not have been made in calculating the income of the deceased."
7AIR 2018 SC 5034.
8(2011) 11 SCC 425 MACP No. 1894/16 Minati Pasupalak & Ors. vs Mahesh Yadav & Ors. 13 of 25 It has also been held by Supreme Court in the case of Manasvi Jain Vs. Delhi Transport Corporation,9, that: "12. This Court in Shyamwati Sharma & Ors. Vs. Karam Singh & Ors., 2010(3) R.C.R. (Civil) 741 : (2010) 12 SCC 378, while considering the issues of deduction of taxes, contributions etc., for arriving at the figure of net monthly income, held that "while ascertaining the income of the deceased, any deductions shown in the salary certificate as deductions towards GPF, life insurance premium, repayments of loans etc., should not be excluded from the income. The deduction towards income tax/surcharge alone should be considered to arrive at the net income of the deceased."
d. Thus, all components of the salary of the deceased except for conveyance allowance have to be considered for the purpose of calculation of loss of dependency. Conveyance allowance cannot be considered for the simple reason that the same was personal to the deceased and its benefit would not have gone to his family. Likewise, only the deductions pertaining to income tax and Haryana Labour Welfare Fund have to be deducted for such calculation. Hence, the monthly income for calculation of loss of dependency would come out to be 91105 +54663+364423428710 = 1,47,913. Accordingly, the monthly income of deceased would be taken as ₹1,47,913/ per month. e. Further, in terms of the principles laid down in National Insurance Company Ltd., vs. Pranay Sethi10, the deceased would also have future prospects @ 15% as he was 55 years of age at the time of accident and was in permanent job as is apparent from his employment record.
9 (2014)3 SCC 22 10 2017 (13) SCALE 12 MACP No. 1894/16 Minati Pasupalak & Ors. vs Mahesh Yadav & Ors. 14 of 25
14. LOSS OF DEPENDENCY a. In view of the above and in view of the material on record, the annual contribution of the deceased to the family multiplied by a multiplier as per above guidelines shall give the loss of dependency to the entire family. b. Hence, the same is taken as criteria for calculating the loss of dependency in this case and as such, the loss of dependency to the family on account of the death of the deceased - Ganesh Prasad Pasupalak can be calculated as under: Income of the deceased (annual) ₹17,74,956/ ₹1,47,913/ X 12 After adding 15% towards future prospects ₹20,41,199.40/ ₹17,74,956/ + ₹2,66,243.40 (₹17,74,956/ X 15%) Deducting 1/3rd towards personal and living expenses of ₹13,60,799.60/ deceased (₹20,41,199.40/ ₹6,80,399.80 (20,41,199.40/X 1/3) Total loss of dependency to the family due to death of ₹1,49,68,795.60/ deceased (A X Multiplier i.e. 11) ₹13,60,799.60/ X 11 c. Hence, in view of the above, the total loss of dependency to the family on account of death of the deceased Ganesh Prasad Pasupalak comes to ₹1,49,68,795.60/ and as such, the petitioners shall be entitled to the said amount i.e. ₹1,49,68,795.60/ as compensation under the head 'loss of dependency'.
15. LOSS OF ESTATE In terms of the judgment of the Hon'ble Supreme Court of India in the case titled as Pranay Sethi (Supra), a sum of ₹15,000/ is awarded towards the head 'loss of estate'.
MACP No. 1894/16 Minati Pasupalak & Ors. vs Mahesh Yadav & Ors. 15 of 25
16. FUNERAL EXPENSES Further, in terms of the law /guidelines laid down in the case Pranay Sethi (Supra), a sum of ₹15,000/ is awarded to the petitioners towards 'funeral expenses'.
17. LOSS OF CONSORTIUM In the instant case, due to the death of deceased Ganesh Prasad Pasupalak, his widow and children i.e. petitioner no. 1 Smt. Minati Pasupalak (wife), petitioner no. 2 Chinmay Kumar Pasupalak (Son) and petitioner no. 3 Vismay Kumar Pasupalak (son) have suffered loss of consortium. In these circumstances and having regard to the fact and circumstances of the present case and in view of law /guidelines laid down in the case Magma General Insurance Co. Ltd vs Nanu Ram11 and United India Insurance Co. Ltd. vs Satinder Kaur12, a sum of ₹1,20,000/ (40,000 x 3) is awarded as compensation under the head 'loss of consortium'.
18. The breakup of compensation that has been awarded in favour of the petitioners have been tabulated as below: S. HEAD AMOUNT No.
1. Loss of dependency ₹1,49,68,795.60/
2. Loss of Consortium (40,000 x 3) ₹1,20,000/
3. For funeral expenses ₹15,000/
4. Loss of estate ₹15,000/ TOTAL ₹1,51,18,795.60 Rounded off to ₹1,51,19,000/ 11 2018 SCC Online SC 1546 12 2020 SCC Online SC 410.
MACP No. 1894/16 Minati Pasupalak & Ors. vs Mahesh Yadav & Ors. 16 of 25
19. INTEREST In the instant case, there is nothing on record, which could justify the withholding of interest on the award amount. In these circumstances and having regard to the fact and circumstances of the present case, it will be just and proper to award interest @ 9% per annum on the award amount in this case in view of the law laid down in Erudhaya Priya vs State Express Transport Corporation Ltd.13 Ld. Counsel for the respondent / insurance company in his additional written submissions has relied upon the case Inayath Raasab Attar Vs. Shatavva14 wherein Hon'ble Supreme Court of India had passed an order reducing the interest rate from 12% to 6% per annum.
Here, it is pertinent to mention that Inayath Rasab (Supra) was passed on 19th February, 2020 by 2 Judges Bench whereas Erudhaya Priya (Supra) was passed on 27th July 2020 by 3 Judges Bench. Accordingly, the latter shall prevail over the authority cited by respondent /insurance company.
Hence, the petitioners are awarded interest @ 9% per annum on the abovesaid compensation / award amount i.e ₹1,51,19,000/ from the date of filing of petition i.e. 03.08.2016 till realization.
20. LIABILITY The offending vehicle bearing no. CH04J4668 was being driven & owned by R1 Mahesh Yadav and insured with R2 / United India Insurance Company Ltd. at the time of accident and as such, respondent no.2 / United India Insurance Company Ltd. shall be liable to pay the awarded amount.
Hence, in view of the above, Issue No. 2 is decided accordingly.
13 2020 SCC OnLine SC 601.
14 Supra, Note 2 MACP No. 1894/16 Minati Pasupalak & Ors. vs Mahesh Yadav & Ors. 17 of 25
21. RELIEF Thus, in view of the above discussion & observations and having regard to the fact and circumstances of the present case, an award for a sum of ₹1,51,19,000/ (Rupees One Crore Fifty One Lacs Nineteen Thousand Only) alongwith interest @ 9% p.a from the date of filing of the petition i.e 03.08.2016 till realization is passed in favour of the petitioners and against the respondents.
The abovesaid compensation amount shall be payable within 30 days by the respondent no.2/ United India Insurance Company Ltd to the petitioners.
22. APPORTIONMENT The abovesaid award amount i.e. ₹1,51,19,000/ shall be apportioned amongst the LRs of the deceasedSh. Ganesh Prasad Pasupalak in the following manner with proportionate interest.
S. Name of the petitioner/relation with deceased Amount No.
1. Petitioner no. 1 Minati Pasupalak (wife) ₹1,01,19,000/
2. Petitioner no. 2 Chinmay Kumar Pasupalak (son) ₹25,00,000/
3. Petitioner no. 3 Vismay Kumar Pasupalak (son) ₹25,00,000/ Total ₹1,51,19,000/
23. FORMIVA SUMMARY OF THE COMPUTATION OF AWARD AMOUNT IN DEATH CASES TO BE INCORPORATED IN THEAWARD
i) Date of accident : 15.05.2016
ii). Name of the deceased : Sh. Ganesh Prasad Pasupalak
iii). Age of the deceased : 55 years (at the time of accident) MACP No. 1894/16 Minati Pasupalak & Ors. vs Mahesh Yadav & Ors. 18 of 25
iv). Occupation of the deceased: Working as Senior Manager with M/s Genpact India Pvt. Ltd.
v). Income of the deceased : ₹1,47,913/
vi). Name, age and relationship of legal representative of deceased
S.No. Name Age Relation with deceased
(at the time of
accident)
(i) Smt. Minati Pasupalak 50 years Wife
(ii) Chinmay Kumar Pasupalak 25 years Son
(iii) Vismay Kumar Pasupalak 23 years Son
Computation of Compensation
S. No. Heads Awarded by the Claims
Tribunal
1. Income of the deceased (A) ₹1,47,913/
2. Annual Income of deceased ₹17,74,956/
3. AddFuture Prospects (A+B) (15%) ₹20,41,199.40/
₹2,66.243.40
4. LessPersonal expenses of the deceased ₹6,80,399.80/ (C) (one third)
5. Annual loss of dependency ₹13,60,799.60/ [ (A+B)C=D] 6. Multiplier (E) 11
7. Total loss of dependency (D x 12x E=F) ₹1,49,68,795.60/
8. Medical Expenses (G)
9. Compensation for loss of love and NA affection (H)
10. Compensation for loss of consortium (I) ₹1,20,000/ (40,000 x 3)
11. Compensation for loss of estate (J) ₹15,000/
12. Compensation towards funeral expenses ₹15,000/ (K)
13. TOTAL COMPENSATION ₹1,51,18,795.60/ (F+G+H+I+J+K=L) Rounded off to ₹1,51,19,000/ MACP No. 1894/16 Minati Pasupalak & Ors. vs Mahesh Yadav & Ors. 19 of 25
14. Deduction of Interim Award Nil RATE OF INTEREST AWARDED
15. Interest amount up to the date of award @ 9% per annum from the (M) date of filing of petition i.e. 03.08.2016 till realization.
16. Total amount including interest ( L+M) ₹1,51,19,000/ + @9% per annum from the date of filing of petition i.e. 03.08.2016 till realization.
17. Award amount released As per table given below
18. Award amount kept in FDRs As per table given below
19. Mode of disbursement of the award By credit in the SB amount to the claimant (s) (Clause 29) Account of the petitioners
20. Next Date for compliance of the award. 30.12.2021 (Clause 31)
24. In the instant case, the award amount shall be deposited/ transferred within 30 days by respondent no. 2/ United India Insurance Company Ltd. in the Account No. 37665510911 of 'MACT (SouthWest), Dwarka Courts, New Delhi ' at State Bank of India, District Court Complex, Sector10, Dwarka New Delhi, (IFSC Code SBIN0011566 and MICR Code 110002483) by RTGS/NEFT/IMPS under intimation, with proof of notice to the claimant/petitioners and their counsel, to the Nazir of this court .
Further, the statement of petitioner/LRs of the deceased regarding their financial status, needs and liabilities have also been recorded in this case. In view of the said statement of the petitioner/LRs of the deceased & having regard to fact and circumstances of the present case, the award amount shall be distributed as follows: MACP No. 1894/16 Minati Pasupalak & Ors. vs Mahesh Yadav & Ors. 20 of 25 S. Name Statu Age Amount of Release Amount of FDR N s (at Award Amount o pres ent
1. Smt. Wife 56 ₹1,01,19,000/ ₹5,19,000/ ₹96,00,000/ be kept Minati years in 120 FDRs of Pasupalak ₹80,000/ each for the period from 1 month to120 months in the name of petitioner no.1 Smt. Minati Pasupalak with cumulative interest.
2. Chinmay Son 30 ₹25,00,000/ ₹1,00,000/ ₹24,00,000/ be kept Kumar years in 60 FDRs of Pasupalak 40,000/ each for the period from 1 month to 60 months in the name of petitioner no.2 Chinmay Kumar Pasupalak with cumulative interest.
3. Vismay Son 28 ₹25,00,000/ ₹1,00,000/ ₹24,00,000/ be kept Kumar years in 60 FDRs of Pasupalak 40,000/ each for the period from 1 month to 60 months in the name of petitioner no.3 Vismay Kumar Pasupalak with cumulative interest.
The abovesaid award amount shall be disbursed through Motor Accident Claims Annuity Deposit Scheme (MACAD Scheme) formulated vide Orders dated 01.5.2018 and 07.12.2018 passed by the Hon'ble High Court of Delhi in FAO No. 842/2013 (Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors.).
MACP No. 1894/16 Minati Pasupalak & Ors. vs Mahesh Yadav & Ors. 21 of 25
25. In the instant case, it is being stated that a Saving Bank Account No. 38466479831 in the name of petitioner no.1- Smt. Minati Pasupalak has been opened at SBI Bank, Madhupa, Cuttack, near Patrapada, Bhuvneshwar, Odisha, Delhi (IFSC Code: SBIN0006658), PAN : ASBPP8564B wherein it has been endorsed that "No Cheque Book and Debit Card is issued in this account".
Accordingly, the Manager, SBI, District Courts Complex, Dwarka, Sector10, New Delhi is directed to transfer the abovesaid cash amount to the abovesaid saving banks account of the said petitioner and to keep the remaining amount in the form of abovementioned FDRs in terms of Motor Accident Claims Tribunal Annuity Deposit (MACAD) Scheme formulated vide orders dated 01.5.2018 and 07.12.2018 passed by the Hon'ble High Court of Delhi in FAO No. 842/2013 (Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors.).
Manager of the bank where the said petitioner is having the aforesaid saving bank account (Herein after referred to as the petitioner's bank) is directed to release the abovesaid cash amount to the said petitioner, as per rules, as prayed.
At the time of maturity, the fixed deposit amount shall be credited in the aforesaid savings bank account of petitioner.
All the original FDRs shall be retained by the concerned bank, however, the statement containing FDR number, amount, date of maturity and maturity amount shall be provided to petitioner.
Manager of the concerned bank is directed not to permit premature encashment or loan qua the abovesaid FDRs to the petitioner without the prior permission of this court.
Further, the interest on the said FDRs shall be paid monthly by automatic credit /transfer of interest amount in the aforesaid SB Account of the said petitioner.
The abovesaid Petitioner's bank is also directed not to issue any cheque book and/or debit card to the petitioner and if the same have already been MACP No. 1894/16 Minati Pasupalak & Ors. vs Mahesh Yadav & Ors. 22 of 25 issued, the said bank is directed to cancel the same and make an endorsement on the pass book that no cheque book or debit card shall be issued to petitioner.
The abovesaid Petitioner's bank shall permit account holder i.e. the said petitioner to withdraw money from the abovesaid saving bank account by means of a withdrawal form.
26. In the instant case, it is being stated that a Saving Bank Account No. 6063101003205 in the name of Son / petitioner no.2 - Chinmay Kumar Pasupalak has been opened at Cananra Bank, Palam Branch, Delhi (IFSC Code: CNRB0006063), PAN : CESPP6406B wherein it has been endorsed that "No Cheque Book and Debit Card is issued in this account".
Accordingly, the Manager, State Bank of India, District Courts Complex, Sector10, Dwarka, New Delhi is directed to keep the abovesaid amount awarded to the said petitioner in the form of abovementioned FDR.
At the time of maturity, the fixed deposit amount shall be credited in the aforesaid savings bank account of the said petitioner.
The original FDR shall be retained by the concerned bank, however, the statement containing FDR number, amount, date of maturity and maturity amount shall be provided to the said petitioner.
Manager of the concerned bank is directed not to permit premature encashment or loan qua the abovesaid FDR to the petitioner without the prior permission of this court.
Further, the interest on the said FDRs shall be paid monthly by automatic credit /transfer of interest amount in the aforesaid SB Account of the said petitioner.
The bank where the said petitioner is having the aforesaid saving bank account (Herein after referred to as the petitioner's bank) is also directed not to issue any cheque book and/or debit card to the said petitioner and if the same have already been issued, the said bank is directed to cancel the same and make MACP No. 1894/16 Minati Pasupalak & Ors. vs Mahesh Yadav & Ors. 23 of 25 an endorsement on the pass book that no cheque book or debit card shall be issued to the said petitioner.
The petitioner's bank shall permit account holder i.e. the said petitioner to withdraw money from the abovesaid saving bank account by means of a withdrawal form.
27. In the instant case, it is being stated that a Saving Bank Account No. 38466479886 in the name of Son / petitioner no. 3 - Vismay Kumar Pasupalak has been opened at SBI Bank, Madhupa, Cuttack, near Patrapada, Bhuvneshwar, Odisha, Delhi (IFSC Code: SBIN0006658), PAN :
CJDPP3311F, wherein it has been endorsed that "No Cheque Book and Debit Card is issued in this account".
Accordingly, the Manager, State Bank of India, District Courts Complex, Sector10, Dwarka, New Delhi is directed to keep the abovesaid amount awarded to the said petitioner in the form of abovementioned FDR.
At the time of maturity, the fixed deposit amount shall be credited in the aforesaid savings bank account of the said petitioner.
The original FDR shall be retained by the concerned bank, however, the statement containing FDR number, amount, date of maturity and maturity amount shall be provided to the said petitioner.
Manager of the concerned bank is directed not to permit premature encashment or loan qua the abovesaid FDR to the petitioner without the prior permission of this court.
Further, the interest on the said FDRs shall be paid monthly by automatic credit /transfer of interest amount in the aforesaid SB Account of the said petitioner.
The bank where the said petitioner is having the aforesaid saving bank account (Herein after referred to as the petitioner's bank) is also directed not to issue any cheque book and/or debit card to the said petitioner and if the same have already been issued, the said bank is directed to cancel the same and make MACP No. 1894/16 Minati Pasupalak & Ors. vs Mahesh Yadav & Ors. 24 of 25 an endorsement on the pass book that no cheque book or debit card shall be issued to the said petitioner.
The petitioner's bank shall permit account holder i.e. the said petitioner to withdraw money from the abovesaid saving bank account by means of a withdrawal form.
28. The insurance company shall inform the petitioners / LRs as well as their counsel through registered post that the award amount is being transferred/ deposited so as to facilitate the petitioners to know about the deposit in the account.
Certified copy of this award be sent to the concerned Manager, SBI, District Courts Complex, Sector10, Dwarka, New Delhi, for information / compliance.
Certified copy of this award be also given ''Dasti' to the petitioners/ their counsel and Ld. Counsel for the respondent/insurance company.
Certified copy of this award be also sent to the concerned Ld. Metropolitan Magistrate and Delhi State Legal Services Authority.
Ahlmad is directed to prepare a separate misc. file and put up the same for filing of the compliance report on 30.12.2021 File be consigned to the record room.
Digitally signed by SUMEDH SUMEDH KUMAR
(Announced in the open Court on KUMAR SETHI
Date: 2021.11.30
this 30th day of November, 2021) SETHI 15:45:47 +0530
(Dr. Sumedh Kumar Sethi)
PO, MACT 01, (South West District)
Dwarka Courts, New Delhi
30.11.2021
MACP No. 1894/16 Minati Pasupalak & Ors. vs Mahesh Yadav & Ors. 25 of 25