Delhi District Court
Smt. Laxmi Bisht (Mother) vs Asgar Ali on 9 July, 2018
IN THE COURT OF SH. DEVENDER KUMAR, PRESIDING
OFFICER-MOTOR ACCIDENT CLAIMS TRIBUNAL, SHAHDARA
DISTRICT, KKD, DELHI
MAC No. 1157/16
1. Smt. Laxmi Bisht (mother)
W/o Sh. Harish Singh Bisht
2. Sh. Harish Singh Bisht (Father)
S/o Late Sh. G.S. Bisht
Both R/o Flat No. 564, Pocket D,
Dilshad Garden,
Delhi-110095 ....Petitioners
Versus
1. Asgar Ali
S/o Sh. Maqsood Ali,
R/o 20 Foota Road, Prem Nagar,
PS Loni, Distt. Ghaziabad,
UP.
Also at C/o M/s. Sardar Transport Company,
Near Delhi Bus stand, Ambala Road,
PS Qutub Sher, Distt. Saharanpur, UP Driver
2. M/s Sardar Transport Company
Though Sh. Bhupinder Singh
S/o Sh. Major Singh
C/o A-8, Ashok Nagar,
Ghaziabad, UP
Also at
Near Delhi Bus Stand,
Ambala Road, PS Qutub Sher,
Distt. Saharanpur, UP. Owner
MAC No.1157/16 Laxmi Bisht & Anr. Vs. Asgar Ali & Ors. 1/27
3. National Insurance Co. Ltd.
C/o DO-27, C-6, Krishna Plaza,
Nyay Khand-1, Indrapuram,
Ghaziabad, UP-201010 Insurance Company
...Respondents
Date of Institution : 20.07.2013
Date of Arguments : 04.07.2018
Date of Judgment : 09.07.2018
JUDGMENT:
Vide this judgment I shall dispose off this petition Under Section 166 & 140 of Motor Vehicle Act, 1988 filed by the Petitioners. The facts of the case are as follows;
1. Facts: Petitioners have alleged that on 09.06.2013, at about 09:30 am, deceased Balwant Singh Bisht was going by his motorcycle bearing No. TH-09F 6681 from Dilshad Garden to Ghaziabad, UP and reached at Apsara Border, when suddenly one bus bearing No. UP-15AT 4990, being driven by its driver in rash and negligent manner, struck against him and caused him fatal injuries. It is further stated that the deceased was declared dead during treatment after removal to GTB Hospital. Postmortem was conducted on the dead body of the deceased. Police lodged one Crime case No. 744/13 u/s 279/338/304A/427 IPC against driver of the offending vehicle with PS Sahibabad, UP and driver was arrested and charge-sheeted. It is further stated that the deceased was aged about 26 years and was bachelor. It is further stated that he was working as Lecturer with MAC No.1157/16 Laxmi Bisht & Anr. Vs. Asgar Ali & Ors. 2/27 Lovely Professional University and was drawing a salary of Rs. 30,435/- pm with bright future prospects. It is further stated that the parents of deceased have suffered mental shock by the untimely death of deceased. Petitioners have filed this petition for the compensation of Rs. 42 Lacs with interest @ 9 % per annum.
2. Written Statements: Respondents No. 1 i.e. Driver has failed to appear despite service and was proceeded ex-parte vide order dated 06/11/2013.
2.1. Respondent No. 2 i.e. Owner has filed written statement thereby stating that no accident took place by the offending vehicle and the offending vehicle has been falsely implicated in this case just to export money. It is further stated that the offending vehicle was insured with the respondent no.3 and offending vehicle was carrying all necessary documents including DL of the driver and insurance company is liable to pay compensation if any, but it is prayed that this petition is liable to be dismissed.
2.2. Respondent No. 3 is the Insurance Company and has filed reply thereby stating that the offending vehicle was insured with the company vide Policy No. 361600/31/12/6300003530 for the period from 15.10.12 to 14.10.13, in the name of Sardar Transport, but it is alleged that insurance company is not liable to pay this compensation. It is alleged that deceased was also driving the vehicle negligently and no accident was caused by the offending vehicle due to insurance company is not liable to pay any compensation. It is denied that this MAC No.1157/16 Laxmi Bisht & Anr. Vs. Asgar Ali & Ors. 3/27 accident took place due to rash and negligent driving of the offending vehicle and has prayed that this case is liable to be dismissed. (Defense- No statutory defense).
3. ISSUES - From the pleading of the parties following issues are framed as under:
1. Whether Balwant Singh Bisht suffered fatal injuries in the accident occurred on 09/06/2013 due to rash and negligent driving of vehicle no. UP-15-AT 4990 (Tata Bus) being driven by respondent no. 1? OPP
2. Whether the petitioners are entitled for any compensation, if so, to what amount and from whom? OPP
3. Relief.
4. PETITIONER'S EVIDENCE: To prove the case, PW1 Harish Singh Bist has repeated his allegations that on 9.6.2013, at about 09:30 am, his deceased son Balwant Singh Bisht was going by his motorcycle bearing No. TH-09F 6681 from Dilshad Garden to Ghaziabad, UP and reached at Apsara border when suddenly offending bus bearing No. UP-15AT-4990 being driven by respondent no. 1 in rash and negligent manner struck against deceased and caused him fatal injuries. It is further deposed that the deceased expired during treatment after removal to GTB Hospital and postmortem was conducted on the dead body of deceased. It is further deposed that the police lodged case Crime No. 744/13 u/s 279/338/304A/427 IPC against the respondent no. 1 with PS Sahibabad, UP and he was arrested and charge-
MAC No.1157/16 Laxmi Bisht & Anr. Vs. Asgar Ali & Ors. 4/27 sheeted. It is further deposed that the deceased was aged about 26 ½ years and post graduate in chemistry from Delhi University and was working with Lovely Professional University and was drawing a salary of Rs. 30,100/- pm at the time of his death. It is further deposed that the deceased was bachelor and has left behind the petitioners as sole LR's who were dependent upon him. He has relied upon the documents Ex.PW1/1 to Ex.PW1/23 and Mark A. During cross examination, he has admitted that he did not witness this accident.
4.1. PW2 Krishan Lal from Lovely Professional University has proved his Authority Letter as Ex.PW2/1 and copy of his ID as Ex.PW2/2. He has proved the salary slip of the deceased for the month of Sept., 2009 which is Ex.PW2/3, Salary slip for the month of May, 2013 as Ex.PW2/4, and salary slip for the 8 days of the month of June 2013. He has further proved the salary security of deceased for two months including interest as Ex.PW2/5. He has further proved the certificate dated 11/3/14 is Ex.PW2/6 and as per this certificate, salary of deceased would be Rs. 34,300/- w.e.f. 01/08/2013. Form 16 qua tax is Ex.PW2/7.
4.1.1. During cross examination, he has admitted that he has not brought the bank statement regarding the transfer of salary of the deceased. He has not produced the terms and conditions of employment of deceased to show that deceased was entitled for increment in salary as a matter of right but has admitted that it was discretion of the management.
MAC No.1157/16 Laxmi Bisht & Anr. Vs. Asgar Ali & Ors. 5/27 4.2. PW3 SI Vimal Kumar is the IO of the case FIR Ex.PW3/1 and has deposed that during investigation he found that the deceased was hit by the offending vehicle from behind and driver left behind the vehicle and ran away from the spot. It is further deposed that the motorcycle of deceased was found under the front wheel of the vehicle. He arrested the driver and filed the charge sheet Ex. PW3/3 against him. He prepared site plan of the spot of accident. He has proved the post mortem report Ex.PW3/4 and MLC is Ex.PW3/5 of deceased. It is further deposed that the offending vehicle was released on superdari vide order Ex.PW3/6. It is further deposed that this accident took place due to rash and negligent driving of the vehicle, but it is admitted that no witness disclosed that the respondent No. 1 was driving the offending vehicle. It is admitted that he cannot say as to whether this accident took place by the fault of the respondent No. 1 or the deceased, but owner disclosed that the respondent No. 1 was driving the offending vehicle at the time of accident, however it is admitted that he has no document to this effect that the owner disclosed this fact. It is denied that the respondent No. 1 was not driving the offending vehicle or did not cause this accident.
5. RESPONDENT'S EVIDENCE: Respondents have not led any Respondent's Evidence and closed RE.
6. I have heard the arguments and perused the record. First issue is pertaining to rash and negligent driving of the offending vehicle and my findings on issue No. 1 are as under:
MAC No.1157/16 Laxmi Bisht & Anr. Vs. Asgar Ali & Ors. 6/27 ISSUE NO 1 - The onus to prove this issue was upon the Petitioners. To discharge this onus, Petitioners have examined witnesses including father of deceased as PW1 and IO as PW3. PWs have repeated their allegations leveled in the petition.
6.1. Legal proposition to prove rashness and negligence of driver of offending vehicle - The onus to prove the rash and negligent driving is on the Petitioners but this fact is not to be proved beyond doubt or in the similar manner as a fact is to be proved in a civil case. Rather it has to be proved on the touchstone of preponderance of probability and holistic view is to be taken while dealing with the Claim Petition based upon negligence. The observation of the Hon'ble High Court made in New India Assurance Co. Ltd. V. Sakshi Bhutani & ors, MAC APP. 550/2011 decided on 02.07.2012 is relevant that it has to be borne in mind that the Motor Vehicles Act does not envisage holding a trial for a petition preferred under Section 166 of the Act. Under Section 168 of the Act, a Claims Tribunal is enjoined to hold an inquiry to determine compensation which must appear to it to be just. Strict rules of evidence are not applicable in an inquiry conducted by the Claims Tribunal. Further in State of Mysore Vs. S.S. Makapur, 1993 (2) SCR 943, the Hon'ble Supreme Court held that the Tribunals exercising quasi-judicial functions are not courts and are not bound by strict rules of evidence.
6.2. Further, the approach of the tribunal has also been defined by the Hon'ble Supreme Court of India in N.K.V. Bros. (P) Ltd. v. M. Marumai Ammal, 1980 ACJ 435 (SC), that the Accidents Claims MAC No.1157/16 Laxmi Bisht & Anr. Vs. Asgar Ali & Ors. 7/27 Tribunal must take special care to see that innocent victims do not suffer and persons liable do not escape liability merely because of some doubt here and some obscurity there. The court should not succumb to niceties, technicalities and mystic maybes. The court is bound to take broad view of the whole matter. As such, the case of the petitioners has to be decided in view of the above said proposition in this case.
6.3. Findings on rash and negligent driving of offending vehicle-
Admittedly, PW1 is not an eye witness to this accident and he has also admitted this fact during his cross examination. PW3 is IO and has been examined to prove the rash and negligent driving of the offending vehicle by the Respondent No. 1. However, he has admitted that he did not meet any witness at the spot who disclosed that the respondent No. 1 was driving the offending vehicle and caused this accident. IT is further deposed that this accident took place due to rash and negligent driving of the respondent no 1, but it is admitted that he is not an eye witness of this accident.
6.3.1. Ld. Counsel for the Respondents has argued that this case is based upon the testimonies of hearsay witnesses and none of the witness was an eye witness to this accident, due to their testimonies have failed to prove the rash and negligent driving of the offending vehicle by the Respondent No.1. It is prayed that this petition is liable to be dismissed.
6.3.2. On the other hand, Ld. Counsel for the Petitioners has disputed all such arguments and has argued that the testimony of PW3 has duly MAC No.1157/16 Laxmi Bisht & Anr. Vs. Asgar Ali & Ors. 8/27 proved that that this accident took place by the negligence of the respondent No. 1 and IO has sufficiently proved this fact. It is argued that this claim is liable to be awarded. Ld. Counsel for the insurance has relied upon a judgment titled Bimla Devi & Ors v. Himachal Road Transport Corp. and Ors, AIR 2009 SC 2819 to support his arguments that strict proof of accident is not possible to be given by the claimants and they have to establish their case on the touchstone of preponderance of probability which has been proved by testimony of IO and documents of criminal record. Ld. Counsel has further relied upon 184(2011) DLT 717 titled Jagdish Prashad Singh v. Umed & Ors, State of Orissa and another v. Nalini Kumari Patniak and others AIR 1987 Orissa 279 and Bishan Devi and Others v. Sirbaksh Singh and Anothers, AIR 1979 SC 1869.
6.4. I have heard the arguments of both parties and perused the record. Petitioners have examined PW3 IO Vimal Kumar to prove the rash and negligent driving of the offending vehicle by the Respondent No. 1 in causing this accident. Ld. Counsel for the insurance has argued that the testimony of the PW3 is not reliable as he was not an eye witness to this accident and was just part of investigation and even his presence also could not be proved at the spot of accident. However, it is not disputed that the rash and negligent driving of the offending vehicle may be proved either by direct evidence or by circumstances including principle by applying the res-ipsa loquitur. Admittedly, PW3 is the IO who has filed the chargesheet in criminal case after visiting the spot of accident soon after the accident. Though he was not a witness of rash and negligent driving of the offending MAC No.1157/16 Laxmi Bisht & Anr. Vs. Asgar Ali & Ors. 9/27 vehicle, yet he has deposed that the offending vehicle is involved in this accident and it came into his investigation that respondent No. 1 caused this accident by his rash and negligent manner driving. He has further deposed that the owner of the offending vehicle disclosed that the Respondent No. 1 was driving the vehicle at the time of accident and arrested the respondent No. 1 in this case. Respondent No. 1 has been chargesheeted and this fact is not disputed. Even Respondent No. 2 has admitted during his cross examination that respondent no. 1 was his driver. As such, it is not disputed that Respondent No. 1 was driving the offending vehicle at the time of accident. On the other hand, the driver has preferred not to contest this case to prove that he has been falsely implicated in this case. Insurance company has disputed this accident in its WS but stated that this accident took place by the fault of the deceased which has proved that the accident is not disputed. The postmortem report has also corroborated that the deceased sustained blunt injuries which were possible by the impact of the offending vehicle and MLC has corroborated the alleged history of this accident. The offending vehicle was seized and got released on superdari which proves the involvement of vehicle in this case. Though mechanical inspection reports of the offending vehicle as well as vehicle of victim have not proved any much damage to vehicles in comparison of testimony of PW3 who has deposed that motorcycle was found under the wheels of offending vehicle, but it is of no use as damage was detected to the motorcycle of deceased, however other facts have proved that this accident took place by the negligence of Respondent No. 1. The judgment relied upon by the Ld. Counsel for the petitioners is relevant to be considered. It is held that MAC No.1157/16 Laxmi Bisht & Anr. Vs. Asgar Ali & Ors. 10/27
12. While dealing with a claim petition in terms of section 166 of the Motor Vehicle Act, 1988, a Tribunal strict sensu is not bound by the pleadings of the parties, the function being to determine the of fair compensation in the event an accident has taken place by reason of negligence of that driver of a motor vehicle. It is true that occurrence of an accident having regard the provisions contained in section 166 of M. V. Act is sine qua non for entertaining a claim petition but that would not mean that despite evidence to the effect that death of the claimant's predecessor had taken place by reason of an accident caused by a motor vehicle, the same would be ignored only on the basis of post mortem vis a vis the averments made in a claim petition.
In view of this judgment, the court discarded the deficiencies in the testimony of the PWs and considered the FIR and PM report coupled with other circumstances to grant the compensation u/s 166 of MV Act. In the present case also, the testimony of IO, who visited the spot of accident first and also investigated the matter to file chargesheet, is sufficient to prove the rash and negligent driving of the offending vehicle especially when no other witness is available to prove the facts. No doubt the eye witness Chandan Kumar is cited as eye witness in the chargesheet and even was served initially, but later on, the petitioners gave up him as he left the last known address. As such, it was not deliberate on the part of the petitioners to drop the eye witness to draw an adverse inference.
MAC No.1157/16 Laxmi Bisht & Anr. Vs. Asgar Ali & Ors. 11/27 6.5. In such type of cases, the assistance of principle of res ipsa loquitur may be taken to determine the negligence of the respondent no 1. The principle has been discussed in Pushpabai Purshottam Udeshi and Ors. v. Ranjit Ginning & Pressing Co. (P) Ltd. and Anr., AIR 1977 SC 1735 as under:
"6. The normal rule is that it is for the plaintiff to prove negligence but as in some cases considerable hardship is caused to the plaintiff as the true cause of the accident is not known to him but is solely within the knowledge of the defendant who caused it, the plaintiff can prove the accident but cannot prove how it happened to establish negligence on the part of the defendant. This hardship is sought to be avoided by applying the principle of res ipsa loquitur. The general purport of the words res ipsa loquitur is that the accident "speaks for itself" or tells its own story. There are cases in which the accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and nothing more. It will then be for the defendant to establish that the accident happened due to some other cause than his own negligence. Salmond on the Law of Torts (15th Ed.) at p. 306 states : "The maxim res ipsa loquitur applies whenever it is so improbable that such an accident would have happened without the negligence of the defendant that a reasonable jury could find without further evidence that it was so caused". In Halsbury's Laws of England, 3rd Ed., Vol. 28, at page 77, the position is stated thus: "An exception to the general rule that the burden of proof of the alleged negligence is in the first instance MAC No.1157/16 Laxmi Bisht & Anr. Vs. Asgar Ali & Ors. 12/27 on the plaintiff occurs wherever the facts already established are such that the proper and natural inference arising from them is that the injury complained of was caused by the defendant's negligence, or where the event charged a negligence 'tells its own. story' of negligence on the part of the defendant, the story so told being clear and unambiguous". Where the maxim is applied the burden is on the defendant to show either that in fact he was not negligent or that the accident might more probably have happened in a manner which did not connote negligence on his part......."
In view of this judgment, the circumstances leading to this accident may be considered to determine rash and negligence of Respondent No. 1. This first and foremost circumstance besides the testimony of PW3 is the site plan Ex. PW3/3 proved by the PW3. The site plan, which is not disputed from the side of respondents, has proved that the deceased was driving the offending vehicle in his correct lane and in extreme left of the road, whereas the respondent No. 1 was driving his vehicle in right side to the vehicle of the deceased but suddenly turn to the side of the deceased to hit his motorcycle after crossing his lane and caused this accident. The point X in the site plan is the spot of accident and that is in the extreme left and has proved that this accident took place by the negligence of the respondent No. 1. The FIR was lodged by the PW1 with number of offending vehicle and the same was seized and got released which has also proved the involvement of the offending vehicle. The chargesheet has been filed u/s 279/304A IPC against the respondent MAC No.1157/16 Laxmi Bisht & Anr. Vs. Asgar Ali & Ors. 13/27 No. 1 after due investigation and has a presumption that police conducted investigation in due course and concluded that the respondent No. 1 caused this accident by his rash and negligent driving. As such, the entire facts have proved that this accident was result of the rash and negligent driving of the respondent No. 1 and petitioners have discharged the onus to prove this issued and is decided in favor of the petitioners and against the respondents.
7. ISSUE NO. 2 - The onus to prove this Issue No. 2 was fixed upon the Petitioners. Since the Petitioners have proved that the Respondent No. 1 caused this accident by his rash and negligent driving, due to petitioners are entitled for this compensation. However, it is to be decided as to what compensation is to be paid and by whom.
7.1. Admittedly, the offending vehicle was insured with the Respondent No. 3 and there is not contest on the part of Insurance Company regarding violation of any terms and conditions of the insurance policy except raising a vague defense that the driver of the vehicle did not cause this accident which could not be proved. As such, the Petitioners are entitled for compensation on the vehicular death of the deceased.
7.2. Age of deceased/dependent: To determine the compensation in a fatal case, Petitioners are required to prove the age, income of the deceased and number of dependents to make necessary deductions towards the personal expenses of the deceased. The age of deceased is necessary to apply the multiplier. Petitioners have disclosed the age of the deceased as 26½ years in petition which has been duly proved by document Ex.PW1/10, as per which, date of birth of deceased was MAC No.1157/16 Laxmi Bisht & Anr. Vs. Asgar Ali & Ors. 14/27 on 06.11.1986, whereas this accident took place on 09.6.2013. As such, age of deceased comes to about 27 years on the day of accident. However, both the claimants in this case are parents of deceased and Ld. Counsel for Insurance has argued that the age of claimant has to be considered to determine the compensation in case of bachelor deceased. The Law laid down in Bharti Axa General Insurance Co. Ltd. and Ors. v. Poonam And Ors MAC App. No. 79/2014 NS 413/15, New India Assurance Company Ltd. V. Shanti Pathak (Smt) (2007) 10 SCC 1 and National Insurance Co. Ltd. V. Shyam Singh (2011) 7 SCC 65 has been cited to support the contentions, which is opposed by petitioners. However, in the recent judgment of the Hon'ble Supreme Court in case titled Ramrao Lala Borse and anr. v. New India Assurance Company Ltd. Civil Appeal No 418/2018 dated 19/1/2018, it is held that age of the deceased is to be considered to determine the compensation even in case of bachelor and not the age of the dependents/parents. In view of latest law, the age of deceased is considered to determine the compensation. The age of deceased was about 27 years which is taken accordingly.
7.3. Multiplier applicable in this case to decide multiplier- After ascertaining the age of the deceased, an appropriate multiplier has to be determined. The judgment of case titled Sarla Verma v. DTC, (2009) 6 SCC 121 is relevant to consider this multiplayer. Para 21 of the judgment has laid down the multiplier as per age as under:
MAC No.1157/16 Laxmi Bisht & Anr. Vs. Asgar Ali & Ors. 15/27 MULTIPLIER AGE GROUP OF DECEASED M-18 Age groups between 15 to 20 and 21 to 25 years) M-17 Age groups between 26 to 30 years, M-16 Age groups between 31 to 35 years, M-15 Age groups between 36 to 40 years, M-14 Age groups between 41 to 45 years, M-13 Age groups between 46 to 50 years, M-11 Age groups between 51 to 55 years, M-9 Age groups between 56 to 60 years, M-7 Age groups between 61 to 65 years M-5 Age groups between 66 to 70 years.
In view of the above said judgment, a multiplier of 17 has to be applied against 27 years of age of the deceased to determine this compensation.
7.4. Determination of Income of deceased / Injured: After deciding the age and multiplier, the income of the deceased has to be determined. The deceased was a lecturer with Lovely Professional University and PW2 has proved his salary slip for the month of May, 2013, as per which, he was drawing a salary of Rs.30,435/- pm including Laptop Allowance of Rs. 335/-. PW2 has also proved the job documents of deceased Ex.PW2/2 to Ex.PW2/7 to prove the job record. Document Ex.PW2/6 has proved that the deceased was likely to receive his assured increment of Rs.4200/- w.e.f 01/08/2013 which is also liable to be included. Though it was discretion of management, MAC No.1157/16 Laxmi Bisht & Anr. Vs. Asgar Ali & Ors. 16/27 yet there is no record that it was not likely to be granted. As such, it is considered and to be added to his income. Form 16 of deceased which is Ex.PW2/7 has proved that the annual income of the deceased was Rs. 3,56,905/- per annum after deducting the conveyance allowance of Rs. 9600/- per annum for the financial years 2012-2013. However, an amount of Rs. 4200/- pm has to be added to the salary of the deceased in view of his assured increment and his net salary comes to Rs. 34,300/- pm. Annual income comes to Rs. 4,07,305/- per annum after deducting his conveyance allowance. The income of the deceased was covered under 10% income tax slab and 10% earning of the deceased has to be deducted towards his tax liability after deduction of standard exempted earning of Rs. 2,00,000/- per annum.
The total tax liability of deceased comes to Rs 25680/- which is to be deducted out of his earning. As such, annual income comes to Rs. 3,81,625/- per annum.
7.5. Necessary deductions out of earnings of the deceased towards personal expenses: After choosing the age, multiplier and income of the deceased, necessary deductions have to be made out of the income of the deceased towards his personal expenses. The Hon'ble Supreme Court of India in case titled Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65, in Para 30, has laid down the necessary deductions towards personal living and expenses of deceased as under:
MAC No.1157/16 Laxmi Bisht & Anr. Vs. Asgar Ali & Ors. 17/27 Number of dependents Deductions out of earning of the deceased.
Half / ½ Where dependent is 1
1/3rd Where the number of dependent family members is
2 to 3
1/4th Where the number of dependent family members is
4 to 6,
1/5th Where the number of dependent family members
exceeds 6 (six).
7.6. In view of the above said judgment, the Petitioner No. 1 Smt. Laxmi Bisht is the mother of deceased and was dependent upon him, but Petitioner No. 2 is the father of the deceased and is not to be considered as dependent. As such, the dependents of the deceased was 1 and 1/2 earnings of the deceased has to be considered towards deductions out of his yearly earning. As such, 1/2 amount out of annual income of Rs. 381625 i.e. Rs. 1,90,812/- p.a. has to be reduced towards personal expenses out of annual earnings of deceased and actual loss of dependency of Petitioners comes to Rs. 1,90,812/- per annum.
7.7. Determination of future earnings: Besides it, a future income of the deceased is also to be considered in view of the latest judgment of the Hon'ble Apex Court titled National Insurance Company Limited vs. Praney Sethi & Ors, SLP (Civil) No. 25590 of 2014 decided on 31.10.2017 in which it is observed as under:-
(iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, 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 MAC No.1157/16 Laxmi Bisht & Anr. Vs. Asgar Ali & Ors. 18/27 addition should be 15%. Actual salary should be read as actual salary less tax.
(iv) In case the deceased was self-employed 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.
(viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral 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.
In fact, in view of the above said judgments 50% income of the deceased has to be considered towards future earnings as the age of deceased was between 26-30 years and he was present employee as proved by PW2.
8. Calculation of Loss of Dependency of Petitioners: I have already observed that the deceased was earning Rs. Rs. 190812/- p.a. Thereafter, this annual income has to be multiplied by multiplier of 17 as per Sarla Verma v. DTC (supra). Rs. 190812/- x 17 = Rs. 3243804/-. Thereafter, 50% income towards future income of the deceased has to be added in terms of National Insurance Co. v. Pranay Shetty (Supra) i.e. 16,21,902/- has to be added to above said amount. Rs. 32,43,804 + 16,21,902 = 48,65,706/-.
MAC No.1157/16 Laxmi Bisht & Anr. Vs. Asgar Ali & Ors. 19/27 8.1. Loss of consortium- The claimants are parents due to no amount under this head is to be awarded.
8.2. Loss of Estate- In view of Pranay Shetty judgment, petitioners are also entitled for Rs.15,000/- towards loss of estate.
8.3. Funeral Charges- Petitioners are also entitled for Rs 15,000/- towards funeral expenses in terms of Pranay Shetty judgment.
8.4. Medical Expenses: It is not disputed that petitioners are also entitled for medical treatment expenses of the deceased regarding his treatment prior to his death, but there is no medical bill of the deceased prior to his death due to petitioners are not entitled for reimbursement of any medical bill.
9. Defenses of Parties:
9.1. Respondent No. 1 & 2- Respondents are driver and owner of the offending vehicle but they have no defense on merit. Though Respondent No.2 has alleged in its WS that this accident was not caused by the rash and negligent driving of the respondent no 1, yet they have failed to prove this defense. Respondent No. 1 was driving the offending vehicle at the time of accident and respondent No. 2 has admitted this fact. Respondent No. 1 was duly arrested and charge-
sheeted. As such, they have no defense at all.
MAC No.1157/16 Laxmi Bisht & Anr. Vs. Asgar Ali & Ors. 20/27 9.2. Respondent No. 3 i.e. Insurance Company has no statutory defense on merit. Though Ld. Counsel for the Insurance has argued to dispute some facts of the case pertaining to the Respondents No. 1 & 2, yet these arguments cannot be considered in the absence of any permission u/s 170 of M.V. Act. As such, none of the respondents has any defense on merit.
10. As such, petitioners are entitled for the compensation as under:
1. Loss of dependency / Contribution to Rs. 48,65,706/-
family:
2. Loss of Estate: Rs. 15,000/-
3. Loss of consortium : NIL
4. Funeral Charges Rs. 15,000/-
Total = Rs. 48,95,706/-
(Rs.48,96,000/-rounded
off)
11. Keeping in view of the facts and circumstances, this petition is allowed. Petitioners are entitled for compensation of Rs. 48,96,000/-
from the Respondent No. 3 i.e. National Insurance Co. Ltd. with interest @ 9% p.a. from the date of filing of the petition till its realization. The interim compensation, if any, shall be adjusted against this award amount along with the waiver of interest, if any as directed by the court during the pendency of this case. Respondent No. 3 is directed to give notice regarding deposit of the said amount to the MAC No.1157/16 Laxmi Bisht & Anr. Vs. Asgar Ali & Ors. 21/27 petitioner and his counsel. As such, Petitioners have also successfully discharged the onus to prove the issue No. 2 and are entitled for the claim amount as above. The following award is passed as under:
AWARD This petition is allowed. Respondents No. 3 i.e. National Insurance Co. Ltd. is directed to pay a compensation of Rs. 48,96,000/- with interest @ 9% p.a. from the date of filing of this petition till its realization to the Petitioners and to deposit the award amount within one month from the date of this award. However, this award amount shall be subjected to adjustment of the interim award, if any and also the waiver of interest, if any as directed by this court during the pendency of this claim. Copy of Form V duly filled shall be treated as part of this award. Award amount be released to the claimants after deposit by Respondent No. 3 in terms of disbursement.
12. Liability: Petitioners have proved that the Respondents No. 1 and 2 are liable to pay this compensation being driver and owner of the offending vehicle. Respondent No. 3 insured the offending vehicle and has failed to prove any violation of the terms of the policy and is liable to reimburse the owner against this claim. As such, Respondent No. 3 is liable to pay this amount to the Petitioners.
13. Apportionment of Award amount: The award amount has to be distributed amongst the claimants. Petitioner No. 1 Smt. Laxmi Bisht is the mother of deceased and is entitled for 70% of the entire compensation of the award amount i.e. Rs. 34,27,200/-. Petitioner MAC No.1157/16 Laxmi Bisht & Anr. Vs. Asgar Ali & Ors. 22/27 No. 2 is the father of the deceased and shall be entitled for 30% out of the award amount i.e. Rs. 14,68,800/-. The share amount shall be with corresponding interest of the award amount.
14. Disbursal of Award amount: Now the disbursement of award amount has to be considered. The procedure of disbursement of the award amount has been provided in Clause-28 of Modified Claims Tribunal Agreed Procedure formulated by the Hon'ble High Court of Delhi in Rajesh Tyagi v. Jaibir Singh, I (2005) ACC 838 (Del.) and Tazuddin Ansari & Ors. v. Satish Kumar & Ors, 2016 SCC OnLine Del 5380 and the disbursement of the award amount is as under.
14.1. Petitioner No. 1 Smt. Laxmi Bisht is the mother of the deceased and shall be entitled for an amount of Rs.2,27,200/- out of Rs. 34,27,200/- and corresponding interest instantly to be credited in her saving bank account nearby to her residence. Remaining amount of Rs.32,00,000/- shall be fixed into automatically renewable FDRs till the period prescribed by this court as under:Sr. No. Duration of FDR Petitioner No. 1
1. 6 Months Rs.100000/-
2. 1 Year Rs.100000/-
3. 1 ½ Year Rs.100000/-
4. 2 Year Rs.100000/-
5. 2 ½ Year Rs.100000/-
6. 3 Year Rs.100000/-
7. 3½ Year Rs.100000/-
8. 4 Year Rs.100000/-
9. 4½ Year Rs.100000/-
10. 5 Year Rs.100000/-
MAC No.1157/16 Laxmi Bisht & Anr. Vs. Asgar Ali & Ors. 23/27
11. 5½ Year Rs.100000/-
12. 6 Year Rs.100000/-
13. 6½ Year Rs.100000/-
14. 7 Year Rs.100000/-
15. 7½ Year Rs.100000/-
16. 8 Year Rs.300000/-
17. 8 ½ Year Rs.300000/-
18. 9 Year Rs.300000/-
19. 9½ Year Rs.400000/-
20. 10 Year Rs.400000/-
Total = Rs.32,00,000/-
14.2. Petitioner No. 2 is father of deceased shall be entitled for an amount of Rs. 2,68,800/- out of Rs. 14,68,800/- and corresponding interest instantly to be credited in his saving bank account nearby to his residence. Remaining amount of Rs. 12 Lacs shall be fixed in FDR in following manner as under:Sr. No. Duration of FDR Petitioner No. 2
1. 1 Year Rs.100000/-
2. 2 Year Rs.100000/-
3. 3Year Rs.100000/-
4. 4 Year Rs.100000/-
5. 5 Year Rs.100000/-
6. 6 Year Rs.100000/-
7. 7 Year Rs.100000/-
8. 8 Year Rs.100000/-
9. 9 Year Rs.100000/-
10. 10 Year Rs.300000/-
Total = Rs.12,00,000/- MAC No.1157/16 Laxmi Bisht & Anr. Vs. Asgar Ali & Ors. 24/27
14.3. The interest against the above said FDRs shall be calculated on quarterly basis and shall also be credited in the account of the claimant on quarterly basis.
14.4. FDR amount shall be paid on maturity basis in the same accounts of the petitioners against which interest amount is being credited through ECS.
14.5. The Manager, UCO Bank or of any other bank as desired by the claimants shall open the saving bank account of the claimants or transfer to his/their existing accounts, if any, nearby to his/their residence after taking relevant documents.
14.6. The withdrawal from the aforesaid bank account of the petitioners / claimants shall be after due verification by the bank and the bank shall issue photo identity card to the petitioners to facilitate the identity.
14.7. The original FDRs shall be retained by the bank in safe custody. However, statement containing FDR numbers, FDRs amount, date of maturity and maturity amount shall be furnished to claimant.
14.8. No loan, advance or withdrawal / pre-mature discharge shall be allowed on the above-said FDRs without the permission of this Tribunal. The bank shall not open any joint account of the petitioners.
14.9. No cheque book or debit card shall be issued to the claimants/ petitioners without the permission of this Tribunal. In case the debit MAC No.1157/16 Laxmi Bisht & Anr. Vs. Asgar Ali & Ors. 25/27 card and / or cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount. The bank shall freeze the accounts of the claimants so that no debit card be issued in respect of the account of the claimant from any other branch of the bank.
14.10. That the bank shall make an endorsement on the passbook of the claimant to this 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.
14.11. The bank shall prepare FDRs in its own name on the receipt of the award amount from the Respondent i.e. Insurance Company till the date Petitioners approach for the release of the amount and thereafter amount along with interest shall be released to the petitioner per award of this Tribunal.
14.12. On the request of the Petitioners, the bank shall transfer the saving account to any other bank of UCO bank or any other bank according to the convenience of the petitioner. The claimants can operate the saving bank account from the nearest branch of UCO Bank and on the request of the claimants, the bank shall provide the said facility.
14.13. The Petitioner/s shall furnish all the relevant documents for opening of the saving bank account and FDR to Nodal Officer, UCO Bank, KKD, Delhi.
MAC No.1157/16 Laxmi Bisht & Anr. Vs. Asgar Ali & Ors. 26/27 14.14. Petitioner / claimant (s) shall file a compliance report on next date of hearing about opening of saving bank account with the nationalized bank nearby to their/his/her residence and to get endorsed from the bank that no cheque-book, debit card or any other facility like ECS/ NFTT etc. has been provided against this bank account.
15. A copy of this judgment be given free of cost to the parties concerned and also be sent to the Court of Ld. MM concerned as well as DLSA, Shahdara. Copy of Form V duly filled shall be treated as part of this award. File be consigned to RR and a separated file for compliance be maintained for 08.08.2018. Digitally signed by DEVENDER KUMAR DEVENDER Date:
KUMAR 2018.07.09
16:33:02
+0530
Announced in open court (DEVENDER KUMAR)
On 09.07.2018 PO-MACT/SHAHDARA
KARKARDOOMA COURTS, DELHI
MAC No.1157/16 Laxmi Bisht & Anr. Vs. Asgar Ali & Ors. 27/27