Delhi District Court
Lr'S Of Manish Gupta vs . Rais Ahmad & Ors. Page 1 Of 37 on 21 June, 2022
LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 1 of 37
IN THE COURT OF MS. JASJEET KAUR, PRESIDING OFFICER, MOTOR
ACCIDENT CLAIMS TRIBUNAL, NORTH WEST DISTRICT, ROHINI COURTS,
DELHI
New No.4282017
UNIQUE ID No. : DLNW010021892017
1. Smt. Reet Gupta (Wife of deceased Manish Gupta)
2. Master Vardan Gupta (son of deceased Manish Gupta)
3. Sh. Virat Gupta (son of deceased Manish Gupta)
All R/o H. No.A1/18A,
Lawrence Road,
Keshav Puram,
New Delhi35.
........ Petitioners/claimants
Vs.
1. Sh. Rais Ahmad, S/o Sh. Shafiq Ahmad,
R/o H.No.252, Sahpura2,
Tehsil Tanda,
District Rampur, U.P.
....... Driver /R1
2. Sh. Shakir Hussain,
S/o Shri Shadik Hussain,
R/o village Sarver Kheda,
Kashipur, Uttar Pradesh.
........ Owner/R2
3. The New India Insurance Company Limited,
Divisional Office:(340600)
Kashipur, Hotel Kumon Plaza Building,
Bazpur Road, Kahsipur244713,
U.S. Nagar.
........ Insurance Co./R3
........Respondents
Other details
DATE OF INSTITUTION : 22.03.2017
DATE OF RESERVING JUDGMENT : 18.06.2022
DATE OF PRONOUNCEMENT : 21.06.2022
FORM - V
COMPLIANCE OF THE PROVISIONS OF THE MODIFIED CLAIMS
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LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 2 of 37
TRIBUNAL AGREED PROCEDURE TO BE MENTIONED IN THE
AWARD AS PER FORMAT REFERRED IN THE ORDER PASSED BY
THE HON'BLE DELHI HIGH COURT IN FAO 842/2003 RAJESH TYAGI
Vs. JAIBIR SINGH and ORS. VIDE ORDER DATED 07.12.2018.
1. Date of the accident 26.05.2016
2. Date of intimation of the accident by the 22.03.2017
investigating officer to the Claims Tribunal
3. Date of intimation of the accident by the 22.03.2017
investigating officer to the insurance company.
4. Date of filing of Report under section 173 Cr.P.C. Not mentioned in the
before the Metropolitan Magistrate DAR
5. Date of filing of Detailed Accident Information 22.03.2017
Report (DAR) by the investigating Officer before
Claims Tribunal
6. Date of Service of DAR on the Insurance Company 22.03.2017
7. Date of service of DAR on the claimant (s). 22.03.2017
8. Whether DAR was complete in all respects? Yes
9. If not, whether deficiencies in the DAR removed later N/A
on?
10. Whether the police has verified the documents filed Yes.
with DAR?
11. Whether there was any delay or deficiency on the N/A
part of the Investigating Officer? If so, whether any
action/direction warranted?
12. Date of appointment of the Designated Officer by the 22.03.2017
insurance Company.
13. Name, address and contact number of the Sh. S.C. Sharma,
Designated Officer of the Insurance Company. Advocate
14. Whether the designated Officer of the Insurance No
Company submitted his report within 30 days of the
DAR? (Clause 22)
15. Whether the insurance company admitted the Not fairly computed
liability? If so, whether the Designated Officer of the the compensation in
insurance company fairly computed the accordance with law.
compensation in accordance with law.
16. Whether there was any delay or deficiency on the N/A
part of the Designated Officer of the Insurance
Company? If so, whether any action/direction
warranted?
LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 2 of37
LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 3 of 37
17. Date of response of the claimant (s) to the offer of N/A
the Insurance Company .
18. Date of the Award 21.06.2022
19. Whether the award was passed with the consent of No
the parties?
20. Whether the claimant(s) were directed to open Yes
saving bank account(s) near their place of residence?
21. Date of order by which claimant(s) were directed to 01.04.2019
open saving bank account (s) near his place of
residence and produce PAN Card and Aadhar Card
and the direction to the bank not issue any cheque
book/debit card to the claimant(s) and make an
endorsement to this effect on the passbook(s).
22. Date on which the claimant (s) produced the 06.01.2020
passbook of their saving bank account near the place
of their residence along with the endorsement, PAN
Card and Aadhar Card?
23. Permanent Residential Address of the Claimant(s) As mentioned above
24. Details of saving bank account(s) of the claimant(s) Petitioner Smt. Reet
and the address of the bank with IFSC Code Gupta, savings bank
a/c
no.6580000100042910
, Master Vardan Gupta,
saving bank a/c
no.6580000100042886
and Master Virat
Gupta, saving bank a/c
no.
6580000100042895 all
with PNB Bank, Sector
11, Rohini Branch,
Delhi and IFSC
No.PUNB065800
25. Whether the claimant(s) saving bank account(s) is Yes
near his place of residence?
26. Whether the claimant(s) were examined at the time Yes
of passing of the award to ascertain his/their
financial condition.
27. Account number/CIF No, MICR number, IFSC Code, 86143654123,
name and branch of the bank of the Claims Tribunal 110002427,
in which the award amount is to be SBIN0010323, SBI,
deposited/transferred. (in terms of order dated Rohini Courts, Delhi
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18.01.2018 of Hon'ble Delhi High Court in FAO
842/2003 Rajesh Tyagi vs Jaibir Singh.
JUDGMENT
1. The present claim proceedings have emanated from the Detailed Accident Report (hereinafter referred to as DAR) filed on 22.03.2017 with reference to FIR No.0384/16 registered for the commission of offences of causing death not amounting to culpable homecide by rash and negligent driving of a motor vehicle on a public road punishable U/s 279/304A of Indian Penal Code 1860 (hereinafter referred to as IPC) at PS Keshav Puram wherein subsequent charge sheet for the commission of aforementioned offences punishable u/s 279/304A IPC against driver, namely, Rais Ahmad was also filed in respect of fatal injuries sustained by deceased Manish Gupta in a road traffic accident. Subsequently, a claim petition under Section 166 and 140 of Motor Vehicles Act, 1988 was also filed on 15.05.2018 by legal heirs of deceased Manish Gupta (hereinafter referred to as the victim or the deceased) for seeking compensation in the sum of Rs.1,50,00,000/ (Rupees One Crore Fifty Lakhs Only) along with interest at the rate of 9% per annum in respect of death of said Manish Gupta in the case accident. The learned Predecessor court had vide order dated 29.04.2017 clubbed the claim petition under sections 166(4) and 140 of the M.V. Act with the DAR.
2. The brief facts of the case as discernible from the DAR, claim petition and the documents of the legal heirs of the deceased (hereinafter referred to as the petitioners/ the claimants or the "LRs of the deceased) are that on 26.05.2016, victim Manish Gupta was returning from his work place to his residence at Keshav Puram on his motorcycle make Pulsar bearing registration No.DL8SBD 6975 and at about 12:30 am, upon reaching near Chandni Picket at B4 Block, Keshav Puram, Delhi, one Tata Truck bearing registration No.HR50E LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 4 of37 LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 5 of 37 0115(hereafter referred to as the 'offending vehicle') being driven by its driver/Rais Ahmed (hereinafter referred to as the driver of the offending vehicle/respondent no.1/R1) at a very fast speed in a rash and negligent manner had come from back side and had hit against the motorcycle of the victim Manish Gupta(hereinafter referred to as the victim/the deceased) as a consequence of which victim Manish Gupta had sustained fatal injuries. It is the case of the petitioners that victim Manish Gupta was immediately shifted by PCR Van to Babu Jagjeevan Ram Memorial Hospital(hereinafter referred to as BJRM Hospital) wherein vide MLC No.114808/16, he was declared as "brought dead"
to the hospital.
3. The postmortem on the body of the deceased was conducted by Dr. R.P. Singh, Specialist and Head, Autopsy surgeon at BJRM Hospital, Jahangir Puri, Delhi vide Postmortem Report (PMR) No.524/16 dated 26.05.2016 wherein the cause of death had been opined as head injury suffered as a result of blunt force impact sustained by the victim.
4. R1/Rais Ahmed who was the driver of the offending vehicle and Sh. Shakir Hussain, owner of the offending vehicle (hereinafter referred to as respondent No.2/R2) had filed their joint written statement wherein they had stated that they were not liable to pay any compensation to the petitioners as the deceased had himself caused the accident with the vehicle of the R2 and that the deceased was driving his vehicle in a rash and negligent manner and at a high speed and could not apply the brakes at an appropriate stage as a consequence of which he (deceased) had himself hit his vehicle against the alleged offending truck being driven by R1 at a slow speed on an inner side road which had caused death of the victim/deceased. R1 and R2 had categorically denied the claim of the petitioners to the effect that the deceased was earning Rs.41,000/ per month. It had been further claimed in their defence by R1 and R2 that it was LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 5 of37 LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 6 of 37 midnight time and there was no one on the road when the deceased had hit the vehicle of the R1/driver. They had denied the averment of the petitioner to the effect that the PCR van had reached at the spot after the case accident and had taken the injured to the hospital. It had been further claimed in the written statement of R1 and R2 that the compensation amount sought by the petitioners was exorbitant.
5. New India Insurance Company Limited, the insurer of the offending vehicle (hereinafter referred to as Respondent no. 3/R3) had filed its written statement stating therein that the present claim petition was incomplete as the parents of the deceased had not been impleaded as parties despite the fact that they were also dependent upon the deceased. It had been further stated in the written statement of R3 that the IO had not mentioned the details regarding the marital status of the deceased and even in the postmortem report, it had been recorded that the brothers of the deceased had identified his body and that the in the column marked for recording details of the LR of the deceased in the DAR, only the name of Sh. Pankaj Gupta was mentioned. It had been admitted in the written statement of R3 that the offending vehicle was insured in the name of R2/Shakir Hussain vide policy No.34060031150100002791 having its validity period commencing from 28.07.2016 and expiring on 27.07.2017. However, it had been prayed by R3 that DAR was incomplete as authentic details of LRs of the deceased had not been filed. Besides, it had been prayed by the insurance company that the present case was a case of contributory negligence on the part of the victim, hence, the insurance company had no liability to pay any compensation to the petitioners. It had also been prayed by R3 that as and when the new facts were brought into the notice of the R3, then, liberty be granted to the insurance company to amend its written statement.
6. From the pleadings of the parties, the following issues were framed by the LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 6 of37 LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 7 of 37 learned Predecessor Court vide order dated 21.05.2018: (1) Whether on 26.05.2016 at 12.55 hours, at B4, Lawrence Road, near Metro Station Keshav Puram, Delhi, one truck bearing registration No.HR50E0115, which was being driven rash and negligently by Rais Ahmed, hit the motorcycle bearing registration No.DL8SBD 6975 and caused the death of Manish Gupta? OPP (2). Whether petitioners are entitled to compensation, if so, to what amount and from whom? OPP (3) Relief.
7. After the framing of issues, opportunities were given to all the parties to prove their respective versions of the case by leading evidence in support of the same. The petitioners/ LRs of the deceased had examined three witnesses in support of their version of the case. Smt. Reet Gupta, wife of the deceased had been examined as PW1, Sh. Anuj Kumar, Inspector of Income Tax, Ward 37(1), Civic Center, New Delhi had been examined as PW2 and SI Mahender Pratap, IO of the case FIR in the present case had been examined as PW3 by the petitioners. No other witness had been examined by the petitioners/the LRs of deceased.
7.1 All three respondents had not examined any witness in support of their respect versions of the case.
8. I have heard the final arguments addressed by Sh. Parminder Singh, learned counsel for the petitioners, Sh. S.P. Bansal, learned counsel for R1 and R2 and Sh. S.C. Sharma, learned counsel for R3. My issuewise findings based on my appreciation of the evidence led by the parties in support of their respective versions of the case are reproduced herein below.
9. Issue wise findings are as under: LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 7 of37 LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 8 of 37 ISSUES No. 1 (1) Whether on 26.05.2016 at 12.55 hours, at B4, Lawrence Road, near Metro Station Keshav Puram, Delhi, one truck bearing registration No.HR50E0115, which was being driven rash and negligently by Rais Ahmed, hit the motorcycle bearing registration No.DL8SBD 6975 and caused the death of Manish Gupta? OPP The onus of proving this issue beyond preponderance of probabilities was upon the petitioners/ claimants.
9.1 The petitioners/ LRs of the deceased had examined three witnesses in support of their version of the case. Smt. Reet Gupta, wife of the deceased had been examined as PW1, Sh. Anuj Kumar, Inspector of Income Tax, Ward 37(1), Civic Center, New Delhi had been examined as PW2 and SI Mahender Pratap, IO of the case FIR in the present case had been examined as PW3 by the petitioners. No other witness had been examined by the petitioners/the LRs of deceased.
9.2 PW1 Ms. Reet Gupta deposed by way of affidavit Ex.PW1/A that she was the legally wedded wife of late Sh. Manish Gupta and their marriage had been solemnized on 25.08.2004 and out of their wedlock, two children, namely, Vardhan Gupta and Virat Gupta were born on 05.03.2007 and on 12.09.2009 respectively. She further deposed that at the time of preparation of her evidence by way of affidavit, that is, on 11.06.2019, her son Vardhan Gupta was studying in 7th standard and her another son Virat Gupta was studying 4 th standard in Prudence School at Ashok Vihar, New Delhi. She had reiterated the facts as mentioned in the claim petition by stating that on 25.05.2016 her husband Sh. Manish Gupta was returning to his residence at Keshav Puram on his motorcycle bearing registration No.DL08SBD6975 and at about 12.30 a.m. upon reaching near Metro Station of Keshav Puram, New Delhi, the offending vehicle bearing LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 8 of37 LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 9 of 37 registration No.HR50E0115 coming from the back side being driven by R1 in a rash and negligent manner and at a high speed had hit the motorcycle of her husband while wrongly crossing her husband as a consequence of which her husband along with his motorcycle had come under the front right wheel of the offending truck and had sustained fatal injuries. She deposed that after the case accident, the police officials had taken her husband to BJRM Hospital, Jahangir Puri, Delhi where her husband was declared "brought dead" and thereafter, the postmortem of the body of her husband was conducted. She stated that her husband was 34 years of age the time of his death and was having a good health and physique. She deposed that her husband was a businessman and had been running his business of Real Estate, that is, sale and purchase of property and he was an income tax payee having income of more than Rs.80,000/ per month from his aforesaid business. She stated that her husband was contributing most of his income towards the household expenses of his family comprising of herself and their two children all of whom were fully dependent upon the deceased for their all needs and requirements. She deposed that her deceased husband had left behind five legal heirs including herself, her two children as well as his parents. She further deposed that the parents of deceased Manish Gupta had debarred him and had also severed all their relations with him by way of public notice dated 21.12.2003 published in "Dainik Jagran" Newspaper and since then, her deceased husband along with herself and their two children had been living separately from his parents till his death and for this reason, the parents of her deceased husband had no right to claim any share in the amount of compensation, if any, awarded by this Tibunal. She stated that despite all that, still to avoid any dispute and unpleasant situation, she had paid a sum of Rs.6 lacs to the parents of the deceased, that is, Rs.1,00,000/ at their residence and Rs.5,00,000/ in the Court and thus, she along with her children were only LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 9 of37 LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 10 of 37 entitled to receive the entire compensation amount arising out of the death of Sh. Manish Gupta. She deposed that R1 was solely responsible for causing death of her husband by driving the offending vehicle in a rash and negligent manner and due to the death of her husband, she and her children had suffered huge financial losses as her husband had died in young age and he would have lived for at least about 80 years during which he would have earned huge income and built huge estate. She stated that due the death of her husband in the case accident, the education and lives of her children had suffered adversely and their chances of rising in their future had been diminished to a great extent. She deposed that the petitioners were entitled to a sum of Rs.1,50,00,000/ as compensation from the respondents. She had relied upon the following documents in support of the case of the petitioners:
i. Photocopy of her Aadhar card Ex.PW1/1.
ii. Photocopy of Aadhar card of deceased Manish Gupta Ex.PW1/2.
iii. Photocopy of Aadhar card of Virat Gupta Ex.PW1/3.
iv. Photocopy of Aadhar card of Vardaan Gupta Ex.PW1/4.
v. Photocopy of fee receipt of Vardaan Gupta Ex.PW1/5.
vi. Photocopy of fee receipt of Virat Gupta Ex.PW1/6.
vii. Photocopy of PAN card of Late Manish Gupta Ex.PW1/7.
viii.DAR filed by the IO Ex.PW1/8(colly).
ix. Newspaper cutting regarding debarring of Manish Gupta by his parents Ex.PW1/9.
9.3 In her crossexamination by Sh. S.C. Sharma, learned counsel for insurance co./R3, PW1 stated that she was not an eye witness to the case accident. She stated that she had not filed any document regarding employment LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 10 of37 LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 11 of 37 and income of her deceased husband except his ITRs. She deposed that after the death of her husband, she had not remarried. She stated that her deceased husband was not having any insurance policy and FDRs. She deposed that her deceased brother, namely, Ravneet Singh was the registered owner of the motorcycle which was being driven by her deceased husband Manish Gupta at the time of occurrence of the case accident. She clarified that deceased Manish Gupta was having a valid driving licence. She stated that she had received the information about the occurrence of the case accident through some unknown person by way of a phone call. She deposed that her deceased husband was having two other brothers, namely, Pankaj Gupta and Rohit Gupta and her in laws had been living with Sh. Rohit Gupta and Sh. Pankaj Gupta. She denied the suggestions that the contents of her affidavit were wrong and that she had filed false and fabricated documents. She further denied the suggestion that she had not suffered any monetary loss due to death of her husband. She also denied the suggestion that the ITRs filed by her were regarding the ancestral property of her deceased husband. She denied the suggestion that the offending vehicle had been falsely implicated in the present case just to claim compensation. She denied the suggestion that her deceased husband had died due to his own negligence or that the case accident had taken place with some other vehicle.
9.4 In her crossexamination by Sh. S.P. Bansal, learned counsel for R1 and R2, PW1 expressed her inability to recall the date when her evidence by way of affidavit Ex.PW1/A was got attested. However, she clarified that the said affidavit was got prepared by her counsel upon her instructions and thereafter, she had put her signatures on the same. She admitted that she was not an eye witness of the case accident. She also admitted that she was not aware about the manner in which the case accident had occurred and that the facts LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 11 of37 LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 12 of 37 mentioned in para No.4 of her evidence by way of affidavit were hearsay evidence. She denied the suggestions that R1 was driving the offending vehicle at the time of accident at a slow speed or that R1 was not driving his vehicle in a rash and negligent manner at the time of case accident. She denied the suggestion that she had claimed compensation on a higher side.
9.5 PW2 Sh. Anuj Kumar, Inspector of Income Tax, Ward 37(1) situated at Civic Center, New Delhi had proved on record the ITRs of Sh. Manish Gupta for the assessment year 20132014, 20142015 and 20152016 as Ex.PW2/1(colly).
9.6 In his crossexamination by Sh. S.C. Sharma, learned counsel for insurance company/R3, PW2 had deposed that he had no personal knowledge regarding the documents filed by him in the Court on the day of recording of his deposition in the Court.
9.7 Sh. S.P. Bansal, learned counsel for R1 and R2 had not availed the opportunity given to him by the Court to cross examine PW2 and hence, the crossexamination of PW2 was treated as nil on behalf of R1 and R2 despite opportunity being given to them to crossexamine PW2.
9.8 PW3 SI Mahender Pratap was the IO of the case who had reiterated the facts as mentioned in the chargesheet by stating that on 26.05.2016, he was posted as Sub Inspector at PS Keshav Puram and on that day at about 1.00 am, on receipt of DD entry No.4A dated 26.05.2016, recorded at PS Keshav Puram, he along with Ct. Tejpal had reached at the place of occurrence of the case accident, that is, near Chandni Picket, B4 Block, Keshav Puram, Delhi where two vehicles including offending truck bearing registration No.HR50E0115 and Bajaj Pulsar Motorcycle of the victim bearing registration No.DL8SBD6975 were found lying in accident condition. He stated that on being informed about the fact that the injured person had already been taken to BJRM Hospital by a LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 12 of37 LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 13 of 37 PCR van, he had proceeded to BJRM Hospital, wherefrom he had collected MLC bearing No.114808/16 of one Sh. Manish Gupta S/o Sh. A.K. Gupta whereby the said Manish Gupta had been declared by the treating doctors as "brought dead"
to the hospital. He stated that the personal belongings of deceased Manish Gupta were handed over to him by the doctors and he had seized the same vide seizure memo and after shifting the body of the deceased to the mortuary of BJRM Hospital through Ct. Tejpal for preservation, he had returned to the place of occurrence of case accident where no eye witness was found present and therefore, he had prepared the rukka and had sent Ct. Vikram to the concerned police station for getting the FIR registered for the commission of offences punishable u/s 279/304A IPC. PW3 deposed that he had conducted the investigation of the present case and had prepared the site plan at the instance of the eyewitness Jitender Kumar. He clarified that he had seized both the vehicles involved in the case accident vide separate seizure memos and had recorded the statements of eyewitness Jitender Kumar and Ct. Vikram. He deposed that he had deposited the case property in malkhana and after completion of investigation, he had prepared and filed the chargesheet before the concerned Court. He further deposed that the had also filed the DAR Ex.PW1/8 (colly) in the present case. He stated that the case accident had occurred due to rash and negligent driving of the offending truck by its driver.
9.9 In his crossexamination by Sh. S.P. Bansal, learned counsel for R1 and R2, PW3 deposed that he had reached at the spot at about 1.10 am. He admitted that at that time, no eye witness was found present at the spot. He stated that he had returned at the spot of occurrence from BJRM Hospital at about 2.30 a.m. and at that time as well no eyewitness was found present at the spot. He deposed that he had prepared a tehrir and had sent the same to police station for getting an FIR registered in the present matter and a copy of the said LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 13 of37 LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 14 of 37 FIR was received by him at about 4.00 am from Ct. Vikram. He stated that during the course of investigation, one neighbour (residing in the vicinity of the spot of occurrence), namely, Jitender Kumar had come forward and had stated that he was an eyewitness of the case accident. He further stated that he had prepared the site plan at the instance of said Jitender Kumar and had recorded the statement of eyewitness Jitender Kumar at about 5.00 am. He deposed that he had recorded the statement of Ct. Vikram at the spot and had seized the two vehicles involved in the case accident. He stated that probably the residential address of eyewitness Jitender Kumar was B4 Block, Keshav Puram, Delhi and the same was situated at a distance of about 10 meters from the place of occurrence of the case accident. He stated that he (IO) had personally visited the residence of eyewitness Jitender Kumar. He expressed his inability to recall the place of work of eyewitness Jitender Kumar as well as timings of his duty. He also expressed his inability to recall as to whether he had mentioned this fact in the statement of eyewitness u/s 161 Cr.PC or not. He stated that Ct. Vikram had not told him about the whereabouts of the witness as well as about the fact as to whether the eye witness was present at the site or not. He also deposed that he was not told by anyone about the presence of eyewitness Jitender Kumar. He expressed his inability to tell as to whether eyewitness Jitender Kumar was related to the deceased or not. He denied the suggestion that the eyewitness was not present at the place of occurrence of the case accident or that the eyewitness was not found present at the spot by him at about 4:005:00 am. He also denied the suggestion that he had not recorded the statement of eyewitness at the spot. He admitted that he was not an eyewitness of the case accident. He denied the suggestion that he had wrongly come to the conclusion in his investigation that the case accident had occurred due to rash driving of the truck driver.
LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 14 of37 LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 15 of 37 9.10 In his crossexamination by Sh. S.C. Sharma, learned counsel for insurance company/R3, PW3 had deposed that he had not found any helmet at the place of accident and he had only seized a motorcycle. He admitted that the accident had occurred due to a head on collision. He stated that the eyewitness was immediately not available at the place of accident. He deposed that he had also seized the driving licence of deceased and insurance papers of the motorcycle of the deceased. He stated that in column No.19 of the DAR, he had mentioned the details of LRs of the deceased. He denied the suggestion that both the vehicles involved in the accident were equally liable for causing the accident or that he had filed a false chargesheet against the truck driver.
9.11 R1/driver, R2/owner of the offending vehicle and R3/insurance company had failed to lead any evidence in support of their respective versions of the case.
9.12 No contradictions or material discrepancies have appeared in the cross examination of PW1 Reet Gupta and PW3 IO SI Mahender Pratap to discredit their above said testimonies which were capable of demolishing the case of the petitioners to the effect that the case accident had occurred due to rash and negligent driving of the offending vehicle by R1 and the death of victim Manish Gupta had occasioned therefrom. The testimonies of PW1 Reet Gupta and PW3 SI Mahender Pratap are reliable and they are the trustworthy witnesses whose deposition have remained infallible during their lengthy crossexamination by the respondents. The circumstances in which the accident had occurred establish that it had occurred solely due to the rash driving of R1 on the relevant date, time and place who had hit his truck against the motorcycle of the deceased make Bajaj Pulsar and had thereby caused fatal injuries on the person of victim Manish Gupta.
9.13 In the facts and circumstances of the case, the charge sheet filed in FIR LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 15 of37 LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 16 of 37 No. 384/16 registered at PS Keshav Puram U/s 279/337/304A of IPC against R1 in the Criminal Court can also be relied upon by this court for the purpose of corroboration of other evidence led by the petitioners in support of their version of the case and can thus lead this court to a finding to the effect that the case accident had occurred due to rash and negligent driving of the offending vehicle by R1. The copy of seizure memo of offending truck is on record as part of the said chargesheet. Besides, the mechanical inspection report of the offending truck is also on record and a perusal of the same reveals that the front side external fitted foot board of the offending vehicle was slightly bended whereas its bumper was scratched on the right side portion and the front middle side of the number plate of the truck in question was scratched. Also, as per the report of mechanical inspector the engine, brake, horn and steering wheel of the offending truck were in working condition.
Besides even the motorcycle of the victim had sustained fresh damages on its front side and front side speedometer, right side indicator light of the said motorcycle were damaged whereas the right side handle portion of the motorcycle of the victim was scratched and bended and the right side body and head light wiser were scrambled. Also as per the report of mechanical inspector, the right side leg guard of the offending vehicle were scratched and banded.
9.14 The postmortem on the body of the deceased was conducted by Dr. R.P. Singh, Specialist and Head, Autopsy surgeon at BJRM Hospital, Jahangir Puri, Delhi vide Postmortem Report (PMR) No.524/16 dated 26.05.2016 wherein the cause of death had been opined as head injury suffered as a result of blunt force impact sustained by the victim.
10. The petitioners had unfortunately not examined eye witness, namely, Jitender Kumar S/o Sh. Gurnam Chand R/o B4/94A, Lawrence Road, Delhi, during trial of the present matter. However, the statement u/s 161 Cr.P.C. made LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 16 of37 LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 17 of 37 by said Jitender Kumar before the IO during investigation of the present matter is on record as part of the DAR filed by the IO wherein the said eye witness had categorically stated that on 26.05.2015 at about 12:30 am while taking a walk on the main road near his house he had witnessed the occurrence of the accident in question in which the offending truck bearing registration no. HR50E0115 being driven in a rash and negligent manner and at a high speed had come from the side of Hathoda Ram Park and while being driven on the wrong side of the road, the said truck had hit against a black coloured motorcycle bearing registration No. DL8SBD6975, thereby dragging and crushing the motorcyclist under its front right side wheel. The said statement made by eye witness Jitender Kumar during investigation of the present case can also be relied upon by this court for the purpose of arriving at a finding of negligence against R1. In the context, it has been held by Hon'ble Apex Court in the decided case of Sunita vs Rajasthan State Road Transport Corporation, Civil Appeal No. 166/2019, date of decision 14.02.2019 that non examination of eye witness in the proceedings before Motor Accident Claims Tribunal cannot be treated as fatal to the case of the petitioners particularly when there was sufficient evidence available on record to establish that the offending vehicle was being driven in a rash and negligent manner by its driver. The Hon'ble Apex Court had inter alia held as follows: "It is thus well settled that in motor accident claim cases, once the foundational fact, namely, the actual occurrence of the accident, has been established, then the Tribunal's role would be to calculate the quantum of just compensation if the accident had taken place by reason of negligence of the driver of a motor vehicle and, while doing so, the Tribunal would not be strictly bound by the pleadings of the parties. Notably, while deciding LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 17 of37 LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 18 of 37 cases arising out of motor vehicle accidents, the standard of proof to be borne in mind must be of preponderance of probability and not the strict standard of proof beyond all reasonable doubt which is followed in criminal cases."
It was further held by Hon'ble Apex Court in the said case of Sunita (Supra) that instead of finding fault with the case of the claimants due to non examination of best eye witness, a claims tribunal should focus on analysis of the available evidence so as to ascertain whether the said evidence is sufficient to establish the case of the claimants on the touchstone of preponderance of probabilities. The relevant extract of observations made by the Hon'ble Supreme Court of India in the said case is reproduced as under: " Similarly the issue of nonexamination of the pillion rider, Rajulal Khateek, would not be fatal to the case of the appellants. The approach in examining the evidence in accident claim cases is not to find fault with non examination of some "best" eye witness in the case but to analyse the evidence already on record to ascertain whether that is sufficient to answer the matters in issue on the touchstone of preponderance of probability. This court, in Dulcina Fernandes (supra), faced a similar situation where the evidence of claimant's eye witness was discarded by the Tribunal and the respondent was acquitted in criminal case concerning the accident. This court, however, took the view that the material on record was prima facie sufficient to establish that the respondent was negligent. In the present case, therefore, the Tribunal was right in accepting the claim of the appellants even LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 18 of37 LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 19 of 37 without the deposition of the pillion rider, Rajulal Khateek, since the other evidence on record was good enough to prima facie establish the manner in which the accident had occurred and the identity of the parties involved in the accident."
10.1 Similar observations were made by Hon'ble High Court of Delhi in the decided case of New India Assurance Company Limited Vs Dayal Singh Ors MACT Appeal No. 419/2010 decided on 7th March, 2013 wherein the Hon'ble High Court of Delhi had upheld the award passed by the Motor Accident Claim Tribunal based on police record and statement u/s 161 Cr.P.C. made by the eye witness. The observations made by Hon'ble High Court in para 15 of the judgement passed in this case are noteworthy in this context and are reproduced below: "15In view of the above position, while relying upon the police record and the statement of Surender Pal Singh recorded U/s 161 Cr.P.C., the learned Tribunal has come to the conclusion that an Eicher Truck bearing No.DL1M 1098, the offending vehicle was involved in the accident. Resultantly, the claimants/ respondents had proved the negligence on the part of the driver."
10.2 It was similarly held by Hon'ble High Court of Delhi in the case of National Insurance Company Limited Vs Shri Mati Pushpa Rana and Ors. MAC App. No.360/2007 decided on 20.12.2007 that the certified copy of criminal case record including charge sheet filed against the driver of the offending vehicle, certified copy of FIR, recovery memo and mechanical inspection report of the offending vehicle relied upon by the petitioners were sufficient proof to arrive at a conclusion regarding negligence of the driver of the offending vehicle LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 19 of37 LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 20 of 37 because the proceedings under the Motor Vehicle Act, 1988 were not akin to a civil suit and as such strict rules of evidence were not supposed to be followed in such proceedings. Relevant extract of observations made in the said judgement is reproduced as under: "The last contention of the appellant insurance company is that the respondents claimants should have proved negligence on the part of the driver and in this regard the counsel has placed reliance on the judgement of the Hon'ble Supreme Court in Oriental Insurance Co. Ltd. Vs. Meena Variyal; 2007 (5) SCALE 269. On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced (I) certified copy of the criminal record of criminal case in FIR No.955/2004, pertaining to involvement of the offending vehicle, (ii) criminal record showing completion of investigation of police and issue of charge sheet under Section 279/304A, IPC against the driver; (iii) certified copy of FIR, wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of the deceased. These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under Motor Vehicles Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Hence, this contention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on the part of the driver."
LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 20 of37 LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 21 of 37 10.3 In another case decided by Hon'ble High Court of Delhi titled as New India Assurance Company Vs Smt. Sakshi Bhutani and Ors. MACT App. No.550/2011 decided on 2nd July, 2012 it had been similarly reiterated by the Hon'ble High Court of Delhi that negligence was not required to be proved beyond reasonable doubt in a MACT case and a certified copy of report u/s 173 Cr.P.C. supported by the mechanical inspection report of the offending vehicle were sufficient to depict the manner in which the accident in question had occurred.
"Admittedly, she was not an eye witness to the accident. Possibly she could not have deposed as to the manner of the accident. At the same time, she placed on record the certified copy of the report under Section 173 Cr.P.C., copy of the FIR, copy of the site plan, mechanical inspection report, arrest memo of the driver, etc. Mere filing of a criminal case may not necessarily be proof of negligence on the part of the person accused of an offence. However, while dealing with a petition under Section 166 of the Act, the Claims Tribunal and the Courts are required to analyse the evidence produced as proof of negligence. Admittedly, negligence is not required to be established beyond reasonable doubt as is expected to be done in a criminal trial. A certified copy of the report under Section 173 Cr.P.C. depicted the manner of the accident which was supported by the mechanical inspection report in respect of offending vehicle No.HR47D 3785 and Scooty No.HR51AB7654."
10.4 In the light of afore cited opinion expressed by Hon'ble Apex Court in the decided case of Sunita vs Rajasthan State Road Transport Corporation, (Supra), as well as in the light of the opinions expressed by the Hon'ble Apex Court of Delhi in the decided cases of New India Assurance LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 21 of37 LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 22 of 37 Company Limited Vs Dayal Singh Ors (Supra), National Insurance Company Limited Vs Shri Mati Pushpa Rana and Ors. (Supra), New India Assurance Company Vs Smt. Sakshi Bhutani and Ors. (Supra). It can be safely concluded that the proceedings before the MACT cannot be rejected merely on account of non examination of eye witness by the petitioner and even if the eye witness turns hostile in a connected criminal case resulting in the passing of a judgment of acquittal in favour of the driver of the offending vehicle then also the MACT can arrive at a finding of negligence against the driver of the offending vehicle on the basis of other reliable evidence produced by the petitioner.
10.5 In the present matter, although eye witness Jitender Kumar has not been examined in this court, however, his statement u/s 161 Cr.P.C. recorded by the IO during investigation of the present case wherein he had fully supported the case of the petitioners by making categoric statement regarding negligence of the driver of the offending vehicle is on record as part of the DAR. Moreover, this statement U/s 161 Cr. PC made by eye witness Jitender Kumar has been corroborated by the mechanical inspection report of the offending vehicle depicting damages sustained by the offending vehicle on its front side. In such circumstances, the case of the petitioners herein cannot be completely rejected due to non examination of the eye witness.
10.6 The issue no. 1 is only to be proved by claimants beyond preponderance of probabilities as distinguished from beyond reasonable doubt. In view of above said discussion it can be safely concluded that through the criminal case record including charge sheet and testimonies of PW1 and PW3, it has been proved beyond preponderance of probabilities that the case accident had been caused by R1 who was driving the offending vehicle in a rash and negligent manner at the above said date, time and place and had hit the same LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 22 of37 LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 23 of 37 against the motorcycle of the victim from front side while driving his vehicle on the wrong side of the road thereby causing the death of victim Manish Gupta.
Issue no.1 is accordingly decided in favour of petitioners and against the respondents.
11. Issue No. (2) Whether petitioner is entitled to compensation, if so, to what amount and from whom? OPP 11.1 In view of my findings on issue no.1 regarding negligence of R1 resulting in the occurrence of the case accident, I am of the considered opinion that the petitioners/claimants are entitled to compensation in respect of demise of the victim Manish Gupta in the above mentioned road traffic accident, I shall now examine the entire evidence including the documents of the petitioners/claimants for the purpose of arriving at a finding about the quantum of compensation to which the petitioners/claimants are entitled.
11.2 Petitioners have examined three witnesses in support of their version of the case including PW1 Smt. Reet Gupta, wife of the deceased who had made deposition regarding the income of the deceased at the time of his demise as well as regarding the number of legal heirs who were financially, totally dependent upon the deceased. Sh. Anuj Kumar, Inspector of Income Tax, Ward 37(1), Civic Center, New Delhi had been examined as PW2 and during such examination he had proved the ITRs of Sh. Manish Gupta. SI Mahender Pratap, IO of the case FIR in the present case had been examined as PW3 by the petitioners.
11.3 In the present case, the income tax returns of the deceased for the assessment years 20132014, 20142015 and 20152016 have been duly filed on court record. The same have also been proved as per law by examining Sh. Anuj Kumar, Inspector of Income Tax, Ward 37(1), Civic Center, New Delhi as LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 23 of37 LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 24 of 37 PW2. He has categorically stated that the income tax returns of the deceased were genuine as per the record of his department. A perusal of last income tax return of the deceased pertaining to the year 20152016 reveals that the gross annual income of the deceased had been reflected in the said income tax return as Rs. 5,26,476/ and on the said income, a tax amount of Rs.11,730/ had been paid by the victim prior to his death. Accordingly, the net annual income of the deceased can be computed as Rs. 5,14,746/. Consequently, the monthly income of the deceased is computed to be Rs. 42,895.5/. Also the date of birth of the deceased as per his driving lincence already placed on record is 20.11.1981 and the accident in question had occurred on 26.05.2016. Therefore, the age of the deceased as on the date of occurrence of the accident in question was 34 years, 6 months and 6 days.
12. Addition of future prospects If addition in income towards future prospects is to be made 12.1 In this regard, reference should be made to the Constitutional Bench Judgement of Hon'ble Supreme Court of India passed in case of National Insurance Company Limited vs. Pranay Sethi and Ors, SLP (Civil) No. 25590 of 2014, date of decision 31.10.2017.
12.2 In the said judgment of Pranay Sethi (Supra), the Hon'ble Apex Court inter alia held as under:
61. In view of the aforesaid analysis, we proceed to record our conclusions:
(i).........................................................................................
(ii) .....................................................................................
(iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 24 of37 LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 25 of 37 where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30% , if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.
(iv) In case the deceased was selfemployed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.
(v) For the determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore.
(vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment.
(vii) The age of the deceased should be the basis for applying the multiplier.
(viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and future expenses should be Rs. 15,000/, Rs. 40,000/ and Rs. 15,000/ respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years. "
(.... Emphasis Supplied) LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 25 of37 LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 26 of 37 12.3 In the case in hand, the deceased was selfemployed/salaried private sector employee and in terms of above said judgement, while determining his income for computing compensation, future prospects have to be added to fall within the ambit and sweep of just compensation under Section 168 of M.V. Act.
12.4 In the present case, as discussed above, the deceased was aged about 34 years 06 months and 06 days at the time of his death. In view of paragraph no. 61 (iv) of above said judgement in Pranay Sethi (Supra), the deceased would be entitled to addition of 40% as future prospects to his established income as he was above the age of 20 years but less than 40 years of age at the time of his death.
12.5 The monthly income of the deceased is thus calculated as Rs.60,053.7/ (monthly income of Rs.42,895.5/ +40% of monthly income i.e Rs.17,158.2/ = Rs.60,053.7/) after addition of future prospects.
13. Deduction towards personal and living expenses of the deceased:
13.1 At the time of his demise, victim Manish Gupta was survived by five legal heirs including his father, mother, wife and two minor sons.
There is no material on record to arrive at a finding to the effect that either the parents of the deceased or his wife either gainfully employed or were not dependent on the income of the deceased for their financial needs.
13.2 In the present case, as discussed above, the deceased is survived five legal heirs and he had a primary duty to provide maintenance to all his legal heirs. Therefore, as per the dictum of Hon'ble Apex Court in the case of Smt. Sarla Verma and Ors. vs. Delhi Transport Corporation and Anr., Civil Appeal No.3483 of 2008, date of judgment 15.04.2009 as upheld in the case of LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 26 of37 LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 27 of 37 Pranay Sethi (supra). The deceased was likely to spend 1/4th of his income on his personal and living expenses and to contribute rest of the 3/4th of his income for his household expenses. Accordingly, ¼th of income of the deceased is supposed to be deducted towards his personal and living expenses.
14. Selection of multiplier:
14.1 As discussed above, the age of the deceased was about 34 years 06 months and 06 days at the time of his death. In view of paragraph no. 61(vii) of the judgement passed in the case of Pranay Sethi (Supra), the age of deceased should be the basis for applying the multiplier. Accordingly, the relevant multiplier would be "16" in the present matter as per judgment in case of Sarla Verma (Supra) which has been upheld in paragraph no. 61 (vi) in case of Pranay Sethi (Supra).
15. Loss of financial dependency
15.1 In the light of aforesaid facts, loss of financial dependency of the petitioners comes to Rs.86,47,732.8/ [i.e. Rs.60,053.7/ (per month income of the deceased) X12 X16 (multiplier) X 3/4 (dependency after deducting 1/4th of income towards personal and living expenses)].
16. Compensation under nonpecuniary heads/conventional heads:
16.1 In view of the judgment of Constitution Bench of Hon'ble Apex Court in case of Pranay Sethi (Supra), as held in paragraph number 61 (viii) of the said judgment, the petitioners would be entitled to Rs. 15,000/ towards loss to the estate of the deceased and Rs. 15,000/ towards funeral expenses.
17. Consortium {Spousal Consortium/Parental Consortium/Filial Consortium}
17.1 The deceased was married and the petitioners/claimants are his parents, LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 27 of37 LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 28 of 37 wife and two minor sons. It is now a settled law in terms of Judgment of Hon'ble Supreme Court of India, in case of Magma General Insurance Co. Ltd vs Nanu Ram and Ors, Civil Appeal No. 9581 of 2018, date of decision 18.09.2018:
2018(8) SCJ 338:2018 SCC Online SC 1546 and the judgment of Hon'ble Delhi High Court in case of Uttrakhand Transport Corporation Vs. Jyoti Sardana, MAC.APP.920/2017, date of decision 03.04.2019 that the compensation under the head of consortium is required to be awarded to all the claimants to the tune of Rs. 40,000/ each. As already discussed above, in the present case, there were five legal heirs of the deceased at the time of his demise who were the wife, two sons and parents of the deceased, hence, Rs. 2,00,000/ (Rs. 40,000/ x 5) is being granted under the said head. My views in this regard are also substantiated by the latest judgments of Hon'ble Delhi High Court in cases titled as United India Ins. Co. Ltd. Vs Manorama Aggarawal and Ors., MAC.APP. 250/2015, decided on 09.01.2020 and Om Prakash and Ors vs Ved Prakash and Anr, MAC.APP 114/2019 date of decision 28.01.2020. My views are also substantiated by the latest judgments of Hon'ble Supreme Court of India in cases titled as The New India Assurance Company Limited Vs. Smt. Somwati and Ors., Civil Appeal Nos. 30933099 of 2020, decided on 07.09.2020 and United India Insurance Company Ltd. Vs. Satinder Kaur alias Satvinder Kaur and Ors., (2020) SCC Online 410.
18. LOSS OF LOVE and AFFECTION 18.1 The Hon'ble Supreme Court of India in the latest case of The New India Assurance Company Limited Vs. Smt. Somwati and Ors., Civil Appeal Nos. 30933099 of 2020, decided on 07.09.2020 after referring to its another decision of threejudge bench in case titled as United India Insurance Company Ltd. Vs. Satinder Kaur alias Satvinder Kaur and Ors., (2020) SCC LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 28 of37 LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 29 of 37 Online 410 inter alia held as follows :
"34. The ThreeJudge Bench in the above case approved the comprehensive interpretation given to the expression 'consortium' to include spousal consortium, parental consortium as well as filial consortium. Three Judge Bench however further laid down that 'loss of love and affection' is comprehended in 'loss of consortium', hence, there is no justification to award compensation towards 'loss of love and affection' as a separate head.
35. The Constitution Bench in Pranay Sethi has also not under conventional head included any compensation towards 'loss of love and affection' which have been now further reiterated by threeJudge Bench in United India Insurance Company Ltd. (supra). It is thus now authoritatively well settled that no compensation can be awarded under the head 'loss of love and affection'. ................................................................................... ................................................................................... ...................................................................................
47. In result, all the appeals are partly allowed. The award of compensation under the conventional head 'loss of love and affection' is set aside........................"
18.2 In view of the abovesaid discussion and the latest judgments of Hon'ble Supreme Court of India in the cases of The New India Assurance Company Limited Vs. Smt. Somwati and Ors., Civil Appeal Nos. 30933099 of 2020, decided on 07.09.2020 and United India Insurance Company Ltd. Vs. Satinder Kaur alias Satvinder Kaur and Ors., (2020) SCC Online 410, no amount of compensation can be awarded under the said head of 'loss of love and affection'. Hence, no amount is being granted under the said head.
19. Petitioners/claimants are accordingly entitled to compensation computed as under:
Loss of financial dependency Rs. 86,47,732.8/
Loss of Estate Rs. 15,000/
LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 29 of37
LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 30 of 37
Funeral Expenses Rs. 15,000/
Loss of Consortium Rs. 2,00,000/
Loss of Love and Affection Nil.
Total Rs. 88,77,732.4/
________________
[Rounded off to Rs. 88,77,733/]
(Rupees Eighty Eight Lacs Seventy Seven Thousand Seven Hundred Thirty Three only).
19.1 In respect of entitlement of the petitioners to interest on the awarded amount, it is noteworthy that the Hon'ble Apex Court had in the case of Municipal Corporation of Delhi vs. Association of Victims of Uphaar Tragedy, 2012 ACJ 48 (SC) had observed that the victims of Uphaar Tragedy be awarded compensation with interest @ 9% per annum. The present matter is pending trial since 22.03.2017 and the rate of interest of fixed deposits in Nationalized banks has fluctuated/dropped several times during the pendency of the present proceedings. Therefore, in the interest of justice, in the present case, this court is of the opinion that the claimants/petitioners are entitled to interest at the prevailing bank rate of 6% per annum from the date of filing of DAR/petition, that is, with effect from 22.03.2017 till realisation of the compensation amount.
19.2 The amount of interim award, if any, shall however be deducted from the above amount, if the same has already been paid to the petitioners.
20. Liability 20.1 In the case in hand, the New India Insurance Company Limited/R3 has not been able to show anything on record to the effect that R1 who was the driver of the offending vehicle was not having any valid driving licence to drive the offending vehicle. As per settled law, since the offending vehicle was duly insured with the insurance company/R3, hence, R3 is liable to pay the entire compensation amount to the petitioners as per law.
LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 30 of37 LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 31 of 37 20.2 Accordingly, in the case in hand, in terms of order dated 16.05.2017 of Hon'ble High Court by Hon'ble Mr. Justice J.R. Midha in case of Rajesh Tyagi Vs. Jaibir Singh and Ors., National Insurance co/R3 is directed to deposit the awarded amount of Rs.88,77,733/ within 30 days from today within the jurisdiction of this Tribunal, that is, State Bank of India, Rohini Courts Branch, Delhi along with interest at the rate of 6% per annum from the date of filing of the petition till notice of deposition of the awarded amount to be given by R3 to the petitioners and his advocates and to show or deposit the receipt of the acknowledgement with the Nazir as per rules. R3 is further directed to deposit the awarded amount in the above said bank by means of cheque drawn in the name of above said bank along with the name of the claimants mentioned therein. The said bank is 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 awarded amount starts earning interest from the date of clearance of the cheque.
APPORTIONMENT
21. Statement of petitioner in terms of clause 29 MCTAP was recorded on 06.01.2020 regarding their savings bank a/c with no loan, cheque book and ATM/debit card. I have heard the petitioners and learned counsel for the petitioners/claimants regarding financial needs of the petitioners and in view of the judgment in the case of General Manager, Kerala State Road Transport Corporation Vs. Susamma Thomas and Others, 1994 (2) SC, 1631, for appropriate investments to safeguard the amount from being frittered away by the beneficiaries owing to their ignorance, illiteracy and being susceptible to exploitation, following arrangements are hereby ordered: 21.1 It is deemed appropriate by this court after hearing learned counsels LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 31 of37 LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 32 of 37 for all parties that maximum amount of compensation be kept in FDRs and only a very small amount be released to the claimants. Keeping in view the facts and circumstances of the case, the statements made by the petitioners, it is hereby directed that on realization of the entire award amount, an amount of 88,77,733 Rs. 20,00,000/ each be given to petitioners, namely, Virta Gupta and Vardaan Gupta and the same be kept in the form of FDRs till they attain the age of majority. Entire remaining amount be given to Smt. Reet Gupta as Mr. Krishan Kumar Gupta and Smt. Sunita Gupta, who are parents of deceased had already given their no objection and do not want any share in the compensation amount. From the share of Smt. Reet Gupta, an amount of Rs. 4,77,733/ be released to her in her A/c no.6580000100042910 maintained in the name of Smt. Reet Gupta, at PNB, Sector11, Rohini Branch, Delhi, which is near her place of residence (as mentioned in statement recorded under clause 29 MCTAP) and remaining amount be kept in 170 FDRs of equal amount for a period of one month to 250 months respectively with cumulative interest without the facility of advance, loan and premature withdrawal without the prior permission of the Tribunal.
21.2 It shall be subject to the following further conditions and directions in terms of order dated 07.12.2018 of Hon'ble Mr. Justice J.R. Midha in case of Rajesh Tyagi vs Jaibir Singh, FAO 842/2003 with respect to fixed deposits :
(a) The bank shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the victim i.e. the saving bank account(s) of the claimant(s) shall be individual savings account(s) and not a joint account(s).
(b) The original fixed deposit shall be retained by the bank in safe custody. However, the statement containing FDR number, FDR amount, date of maturity and maturity amount shall be furnished by bank to the claimant(s).
LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 32 of37 LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 33 of 37
(c) The monthly interest be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant/(s) near the place of their residence.
(d) The maturity amount of the FDR(s) be credited by Electronic Clearing System (ECS) in the saving bank account of the claimant(s) near the place of their residence i.e. above said a/c.
(e) No loan, advance or withdrawal or premature discharge be allowed on the fixed deposits without permission of the court.
(f) The concerned Bank shall not to issue any cheque book and/or debit card to claimant(s). However, in case the debit card and/or cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount. The bank shall debit card(s) freeze the account of the claimant(s) so that no debit card be issued in respect of the account of the claimant(s) from any other branch of the bank.
(g) The bank shall make an endorsement on the passbook of the claimant(s) to the effect, that no cheque book and/or debit card have been issued and shall not be issued without the permission of the court and claimant(s) shall produce the passbook with the necessary endorsement before the court on the next date fixed for compliance.
(h) It is clarified that the endorsement made by the bank along with the duly signed and stamped by the bank official on the pass book(s) of the claimant(s) is sufficient compliance of clause (g) above.
22. Relief 22.1 As discussed above, R3 is directed to deposit the award amount of Rs. 88,77,733/ with interest @ 6% per annum from the date of filing of DAR/petition i.e. 22.03.2017 till realization within the jurisdiction of this Tribunal LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 33 of37 LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 34 of 37 i.e. SBI, Rohini Court Branch, Delhi within 30 days from today under intimation of deposition of the awarded amount to be given by R3 to the petitioners and their advocate failing which the R3 shall be liable to pay interest @ 9% per annum from the period of delay beyond 30 days.
22.2 R3 is also directed to place on record the proof of deposit of the award amount, proof of delivery of notice in respect of deposit of the award amount in the above said bank to the claimants and complete details in respect of calculations of interest etc in the court within 30 days from today. 22.3 A copy of this judgment/award be sent to respondent no. 3 for compliance within the granted time.
22.4 Nazir is directed to place a report on record in the event of non receipt/deposit of the compensation amount within the granted time.
In terms of directions contained in the order dated 07.12.2018 and subsequent order dated 22.02.2019 of Hon'ble Mr. Justice J.R. Midha in the case of Rajesh Tyagi and Ors vs Jaibir Singh and Ors., FAO 842/2003, the copy of the award be also sent by the Ahlmad of the court to Mr. Rajan Singh, Assistant General Manager, State Bank of India (as per the list of nodal officers of 21 banks of Indian Bank's Association as circulated to the Motor Accident Claims Tribunal vide above mentioned order dated 22.02.2019 of Hon'ble Delhi High Court) who is the Nodal Officer with contact details (02222741336/9414048606) {other detailsPersonal Banking Business Unit (LIMA) 13th Floor, State Bank Bhawan, Madame Cama Road, Nariman Point, Mumbai400021} through email ([email protected]) through the computer branch of Rohini Courts, Delhi. Ahlmad of the court is directed to take immediate steps in that regard.
22.5 A copy of this award be forwarded to the concerned Metropolitan Magistrate and DLSA in terms of the orders passed by the LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 34 of37 LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 35 of 37 Hon'ble High Court in FAO 842/2003 Rajesh Tyagi Vs. Jaibir Singh and Ors. vide order dated 12.12.2014.
In view of the directions contained in order dated 18.01.2018 of Hon'ble Mr. Justice J.R. Midha in FAO no. 842/2003 titled as Rajesh Tyagi vs Jaibir Singh, joint statement of petitioners was also recorded on 06.01.2020 wherein they had stated that they were entitled to exemption from deduction of TDS and that they would submit form 15G to insurance co. so that no TDS is deducted.
23. Form IVA which has been duly filled in has also been attached herewith. File be consigned to record room as per rules after compliance of necessary legal formalities. Copy of order be given to parties for necessary compliance as per rules.
Announced in open court (JASJEET KAUR)
on 21st June 2022 PO MACT N/W
Rohini Courts, Delhi.
LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 35 of37
LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 36 of 37
FORM - IV A
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN DEATH CASES TO BE INCORPORATED IN THE AWARD
1. Date of accident : 26.05.2016
2. Name of deceased: Sh. Manish Gupta
3. Age of the deceased: About 34 years 06 months and 06 days at the time of accident.
4. Occupation of the deceased: Self employed/salaried in private sector.
5. Income of the deceased: Rs.42,895.5/ per month
6. Name, age and relationship of legal representatives of deceased:
S.No. Name Age Relation
(i) Smt. Reet Gupta 37 years Wife
(ii) Master Virat Gupta 13 years Son
(ii) Master Vardaan Gupta 15 years Son
Computation of Compensation
S.No. Heads Awarded by the Claims
Tribunal
7. Income of the deceased (A) Rs.42,895.5/ (as per monthly
wages)
8. AddFuture Prospects (B) 40% = Rs. 17,158.2/
9. LessPersonal expenses of the 1/4th
deceased (C )
10. Monthly loss of dependency Rs.45,040.28/
{ (A+B) - C =D}
11. Annual loss of dependency (Dx12) Rs.5,40,483.36 12. Multiplier (E) 16
13. Total loss of dependency (Dx12xE = Rs. 86,47,733.76/ F)
14. Medical Expenses (G) Nil
15. Compensation for loss of love and Nil affection (H) LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 36 of37 LR's of Manish Gupta Vs. Rais Ahmad & Ors. Page 37 of 37
16. Compensation for loss of consortium Rs. 2,00,000/ (40,000x5) (I)
17. Compensation for loss of estate (J) Rs. 15,000/
18. Compensation towards funeral Rs. 15,000/ expenses (K)
19. TOTAL COMPENSATION Rs.88,77,733.76/ (after (F+G+H+I+J+K =L) rounding of Rs.88,77,734/)
20. RATE OF INTEREST AWARDED 6% 21 Interest amount up to the date of Rs.27,95,006.52/ award (M)
22. Total amount including interest (L+M) Rs.1,16,72,740.5/ (rounded off Rs.1,16,72,741/)
23. Award amount released Rs.4,77,734/ to the petitioner No.1/Reet Gupta
24. Award amount kept in FDRs Rs. 1,11,95,007/
25. Mode of disbursement of the award As per award and in terms of amount to the claimant (s) (Clause 29) clause 29 of MCTAP.
26. Next date for compliance of the award. 20.07.02022 (Clause 31) Announced in open court (JASJEET KAUR) on 21st June, 2022 PO MACT N/W Rohini Courts, Delhi.
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