Delhi District Court
Pushpa Devi vs . Viresh @ Parmod on 20 March, 2017
No. 06/16 (6005/16)
Pushpa Devi Vs. Viresh @ Parmod
F.I.R No. 737/15, P.S Alipur
20.03.2017
Present: Ms. Nazma Praveen counsel for Lrs of deceased alongwith Sh.
Kesri Nandan, father of deceased.
Sh. A.S Maan Adv for driver and registered owner.
Proxy counsel for Sh. Sameer K. Tiwari counsel for insurance
company.
Statements of Lrs of deceased recorded under clause 26 of MCTAP
recorded today separately.
Put up for passing of award at 4 p.m.
(Vidya Prakash)
Judge MACT-2 (North)
Rohini Courts, Delhi/20.03.2017
At 4 p.m
Present: None.
Vide separate order dictated and announced in the open Court, an
award for a sum of Rs. 15,21,800/- alongwith interest @ 9% p.a has been
passed as per Form IV of the MCTAP in favour of Lrs of deceased and against
the respondents.
Put up for filling the compliance report by the insurance company on 02.05.2017.
(Vidya Prakash) Judge MACT-2 (North) Rohini Courts, Delhi/20.03.2017 IN THE COURT OF SHRI VIDYA PRAKASH, PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNAL, ROHINI COURTS, DELHI.
No. 06/16 (6005/16) Pushpa Devi Vs. Viresh @ Parmod F.I.R No. 737/15, P.S Alipur 20.03.2017 AWARD AS PER FORM IV 1 Date of accident 18.08.15 2 Date of intimation of the accident by the Investigating Officer to the Not Claims Tribunal. (Clause 2) available 3 Date of intimation of the accident by the Investigating Officer to the 04.10.15 Insurance Company. (Clause 2) 4 Date of filing of Report under Section 173 Cr. P.C. before the Not Metropolitan Magistrate. (Clause 10) available 5 Date of filing of Detailed Accident Information Report (DAR) by the 04.01.16 Investigating Officer before Claims Tribunal (Clause 10) 6 Date of service of DAR on the Insurance Company (Clause 11) 04.01.16 7 Date of service of DAR on the claimant (s) (Clause 11) 04.01.16 8 Whether DAR was complete in all respects? (Clause 16) complete 9 If not, state deficiencies in the DAR No deficiency 10 Whether the police has verified the documents filed with DAR? yes (Clause4) 11 Whether there was any delay of deficiency on the part of the No delay Investigating Officer? If so, whether any action/direction warranted?
12 Date of appointment of the Designated Officer by the Insurance Not on the
Company (Clause 19) record
13 Name, address and contact number of the Designated Officer of the Sh.
Insurance Company. (Clause 19) Sameer
Tiwari
14 Whether the Designated Officer of the Insurance Company submitted Yes
his report within 30 days of the DAR? (Clause 21) 15 Whether the Insurance Company admitted the liability? If so, whether Yes. Not the Designated Officer of the Insurance Company fairly computed the computed compensation in accordance with law. (Clause 22) the compensat ion amount as per law.
16 Whether there was any delay of deficiency on the part of the No Designated Officer of the Insurance Company? If so, whether any action/direction warranted?
17 Date of response of the claimant(s) of the offer of the Insurance offer is
Company (Clause 23) given
18 Date of award. 20.03.17
19 Whether the award was passed with the consent of the parties? yes
(Clause 22)
20 Whether the claimant(s) examined at the time of passing of the award yes
to ascertain his/their financial condition? (Clause 26) 21 Whether the photographs, specimen signatures, proof of residence yes and particulars of bank account of the injured/legal heirs of the deceased taken at the time of passing of the award (Clause 26) 22 Mode of disbursement of the award amount to the claimant(s). (Clause Phased
28) manner 23 Next Date for compliance of the award. (Clause 30) 02.05.17 Police has filed Detailed Accident Report (DAR) in respect of accident which occurred on 18.08.15 at 7.00 a.m. near Hindustan Live Compound GateB, Alipur, Delhi, for which FIR No. 737/15, under Section 279/304A IPC was also registered in P.S Alipur against driver of the offending vehicle bearing registration no. PB12Q9766. DAR was treated as the claim petition under Section 140 & 166 of Motor Vehicles Act (hereinafter referred to as 'MV Act') for grant of compensation for the fatal injuries suffered by deceased Rajbir in the said road accident.
During investigation, IO had recorded the statement dt. 18.08.15 of complainant/eye witness Sh. Rupesh Kumar S/o Sh. Lallan Parsad to the effect that he was on duty as Guard on 17.08.15 from 8.00 pm till 8.00 am of 18.08.15 in the godown premises of Hindustan Liver situated at Alipur Delhi. On 18.08.15 at about 7.00 a.m while he was standing at Gate of Compound B of the godown premises, Rajbir (since expired) S/o Sh. Kesri Nandan who was driver of Tata 1109 bearing no. PB12K8870 came outside the godown and stood there. In the meantime, the driver namely Parmod (respondent no. 1 herein) came driving Tata 1109 bearing no. PB12Q9766 at very high speed and in zigzag manner from inside the godown and hit against Rajbir as a result of which Rajbir fell down on to the floor after jumping for 45 feet or so. The accident was so sudden that Rajbir did not had any chance to save himself.
Alongwith DAR, copy of charge sheet/Final Report U/s 173 Cr.PC has been filed, wherein it is mentioned that Rajbir was removed to BJRM hospital where he was declared brought dead and postmortem on his dead body was got conducted. During investigation, supplementary statement U/s 161 Cr.PC dated 18.08.15 of eye witness Rupesh Kumar was recorded, wherein he claimed that when he reached near the body of Rajbir immediately after the accident in question, he saw that the face of Rajbir had been crushed by tyre of offending truck. The driver namely Parmod had come down from the offending truck but he fled away after seeing that Rajbir had died at the spot. Post mortem report of deceased filed alongwith DAR shows that deceased has suffered crush injury over an area of 20x17 cm, involving face, eyes, nose and ears with protrusion of underlying structures and associated with multiple fractures of facial bones apart from other injuries as mentioned therein. Same also corroborates the statement of eye witness Rupesh Kumar.
Joint reply to the DAR was filed by driver and owner/respondents no. 1 & 2, wherein it is averred that no accident took place by the offending vehicle and thus, there is no question of any negligence on the part of driver/ respondent no. 1. They have claimed that they are not liable to pay any compensation as the offending vehicle was duly insured with United India Insurance/R3 vide policy no. 404701/31/14/630000009705 dt. 15.03.15 from 15.03.15 to 14.03.16. It is further claimed that R1 was having valid driving license on the date and time of accident, having validity upto 20.12.15 and the offending vehicle was having valid permit no. NP/PB/11/052015/8825 dt. 05.05.2015.
Insurance company/respondent no. 3 filed legal offer of Rs.9,07,844/. However, the same was not acceptable to the Lrs of deceased, since the amount offered under non pecuniary heads was not as per law. On 15.12.2016, counsel of insurance company gave revised offer of Rs. 1,35,000/ under n on pecuniary heads besides offer of Rs. 8,57,844/ as already given under the pecuniary heads. Same was also not acceptable to the Lrs of deceased as even revised offer was also not as per the law. Ld counsel for Lrs of deceased gave statement that Lrs of deceased did not wish to lead evidence in respect of income and future prospects of deceased and prayed for passing the award on the basis of DAR. Ld counsel for driver and owner also gave statement to the effect that without prejudice to the defence of driver to be taken in the criminal case, driver and owner did not want to lead any evidence in their defence in the present case and they had no objection if the award is passed on the basis of DAR.
Since insurance company has no statutory defence and driver and owner did not want to lead any evidence in the present case without prejudice to their rights and contentions, no triable issue is involved. Hence, award on the basis of DAR is passed as under.
As per the affidavit dated 09.09.2015 of father of deceased annexed with DAR, deceased Rajbir Singh @ Raj Veer was aged 28 years (DOB: 14/06/1986) and he was professional LMV driver and was getting gross salary of Rs. 12,000/ pm in addition to diet allowance of Rs. 100/ per day. He died as unmarried leaving behind him his father and mother as the only surviving legal heirs. Admittedly, there is no proof regarding the income of the deceased. Hence, the income of deceased is assessed on the basis of Minimum Wages Act. (Reliance placed on judgments in "ICICI Lombard General Insurance Company Ltd. Vs. Hari Singh & Ors" MAC.APP 122 05.02.11 : "New India Assurance Company Ltd. Vs. Maya Devi & Ors." MAC. APP 627/2011 and "Kiran Devi & Ors Vs. Sujeet Yadav & Ors" 11 (2010) ACC 289). Minimum wages of skilled worker (being professional driver) on the date of accident, were Rs.10,998/ p.m. As per duly verified driving license of deceased, his date of birth was 14.06.1986. Hence, the age of the deceased at the time of accident was just above 28 years. In "Reshma Kumar & Ors. Vs. Madan Mohan & Another", (2013) 9 SCC 65, Three Judge Bench of Hon'ble Apex Court has held that the multiplier is to be used with reference to the age of the deceased. Said decision was again reiterated and followed by Three Judge bench of Hon'ble Apex Court in "Munna Lal Jain & Another Vs. Vipin Kumar Sharma & others", Civil Appeal No. 4497/2015 decided on 15.05.2015. On the basis of age of the deceased, multiplier of 17 is applicable. (Reliance placed on the judgment of Hon'ble Supreme Court in Sarla Verma Vs. DTC 2009 ACJ 1298). The deceased was unmarried & has left behind two Lrs i.e. parents. Hence, one half of the income of deceased is to be deducted towards his personal living expenses. (Reliance placed on the judgment of Hon'ble Supreme Court in Sarla Verma's case supra.) Thus, total compensation is assessed as under: Heads Amount
1) Loss of dependency Rs.10,998X12X17X1/2= Rs. 11,21,796/ (rounded off)
2) Loss of Love and affection Rs. 1,50,000/
3) Loss of consortium Rs. 1,50,000/
3) Funeral expenses Rs. 50,000/
4) Loss of estate Rs. 50,000/ Total Rs. 15,21,796/ Rounded off to Rs. 15,21,800/ (For awarding amount under nonpecuniary heads reliance is placed on the judgment of Hon'ble Delhi High Court in Shri Ram General Insurance Company Ltd. Vs. Usha & other, MAC. APP 160/15 and C.M No. 2915/2015 pronounced on 05.05.2016) Accordingly, an award for a sum of Rs. 15,21,800/ alongwith interest @ 9% p.a (including interim award if any) w.e.f date of filling of the DAR i.e 04.01.16 till its realization, is passed in favour of Lrs of deceased and against the respondents.
Out of the total award amount, the petitioner no. 1 namely Smt. Pushpa Devi shall have 60% of the total compensation amount alongwith proportionate interest and petitioner no. 2 namely Sh. Kesri Nandan shall have 40% of the total compensation amount alongwith proportionate interest. Statements of both the parents of deceased have been recorded under clause 26 of MCTAP.
In view of statements under clause 26 of MCTAP of both the legal heirs, a sum of Rs. 1,50,000/ out of the total share amount of petitioner no. 1 shall be released to her immediately by transferring the said amount directly in her savings account and a sum of Rs. 1,00,000/ out of the total share amount of petitioner no. 2 shall be released to him immediately by transferring the said amount directly in his savings account and rest of their respective share amounts be kept in fixed deposit in the following manner: Serial Petitioner no. Petitioner no. 2 Amount Rs. Period No. 1 namely namely Sh. Kesri Smt. Pushpa Nandan Devi
1. 5% of share amount One year with commulative interest
2. 5% of share amount Two years with commulative interest
3. 5% of share amount Three years with commulative interest
4. 5% of share amount Four years with commulative interest
5. 5% of share amount Five years with commulative interest
6. 5% of share amount Six years with commulative interest
7. 5% of share amount Seven years with commulative interest
8. 5% of share amount Eight years with commulative interest
9. 5% of share amount Nine years with commulative interest
10. 5% of share amount Ten years with commulative interest
11. 5% of share amount Eleven years with commulative interest
12. 5% of share amount Twelve years with commulative interest
(i) The interest on the fixed deposits be paid monthly to both the claimants.
(ii) The monthly interest be credited automatically in the saving accounts of both the claimants.
(iii) Original fixed deposit receipts be retained by the bank in safe custody. However, a passbook of the FDR be given to both the claimants alongwith the photocopy of the FDR be given to both the claimants along with the photocopies of the FDR. At the time of maturity, the fixed deposit amount shall be automatically credited in the savings bank accounts of the Claimants.
(iv) No cheque book be issued to the claimants without permission of the Court. However, a photo identity cards be issued to the claimants and the withdrawal be permitted upon production of the identity cards.
(v) No loan, advance or withdrawal be allowed on the fixed deposits without permission of the court.
(Vi) The Bank shall not permit any joint name to be added in the savings bank accounts or fixed deposit accounts of the victims.
(viii) Half yearly statements of accounts be filed by the Bank in the Tribunal.
Concerned Branch Manager is directed to transfer the balance of the share amount of both the petitioners directly in their saving bank accounts.
Insurance company is directed to deposit the award amount directly in the bank accounts of the Lrs of deceased/petitioners within 30 days as per above order after giving notice to Lrs of deceased/petitioners. Copy of Order be given in dasti to counsel for insurance company alongwith one set of photographs, specimen signatures/thumb impression, copy of bank passbooks and copy of residence proofs of the LRs of deceased for compliance. Copy of order be also sent to concerned M.M and DLSA as per clause 31 and 32 of MCTAP.
ANNOUNCED IN THE OPEN COURT ON 20.03.2017. (VIDYA PRAKASH) Judge MACT2 (North) Rohini Courts, Delhi/20.03.2017