Delhi District Court
Smt. Deepika vs Sh. Manoj Sharma on 18 July, 2023
IN THE MOTOR ACCIDENT CLAIMS TRIBUNAL,
NORTH WEST, ROHINI COURTS, DELHI
PRESIDED BY SH. GAGANDEEP JINDAL,
==============================================
UID No. / CNR No. DLNW01-009299-2022 MACT CASE No. 315/2021 and 199/2021 FIR No. 402 / 2020, PS South Rohini In the matter of :
1. Smt. Deepika Wife of deceased Mukesh Shokeen aged about 24 years
2. Master Nakul Deceased Son of Late Mukesh Shokeen aged about 04 years
3. Sh. Layak Ram Shokeen Father of deceased Mukesh Shokeen aged about 63 years
4. Smt. Roshani W/o Late Sh. Layak Ram Shokeen Mother of deceased Mukesh Shokeen aged about 60 years All R/o H. no. 165, Panna Mohalla, Mangolpur Kalan, Delhi-110085.
.....Petitioners Vs.
1. Sh. Manoj Sharma S/o Sh. Dori Lal Sharma R/o B-5/282-283, Sector-3, Rohini, New Delhi-110085 & Gali No. 1, Kirari Suleman Nagar, Nithari, Delhi-110086 MACT Case No.315/2021 (FIR no. 402/2020) Smt. Deepika & Ors. v. Manoj Sharma & Ors.
Page no. 1 of 21 ....Driver/R1
2. Smt. Sonam, W/o Sh. Manoj Sharma R/o B-5/282-283, Sector-3, Rohini, New Delhi-110085 & Gali No. 1, Kirari Suleman Nagar, Nithari, Delhi-110086 ....Owner/R2
3. The New India Assurance Company Ltd.
R/o IIIrd Floor, LSC Block-B,
Lawrence Road, Delhi-35
....Insurer/R3
Date of institution of the DAR : 06.10.2021
Date of final Arguments : 07.07.2023
Date of Decision : 18.07.2023
Appearance (s) : Sh. R. K. Jain, Ld. Counsel for petitioner no. 1.
Sh. Varun Deswal, Ld. Counsel for petitioner no. 2, 3 and 4.
Sh. Murli Manoharan, Ld. Counsel for R1 & R2 Sh. Chaitanya Jain and Sh. Ajay Singh Yadav, Ld. Counsel for R3 J U D G M E NT /AWAR D PLEADINGS:
1. A DAR was filed on 18.11.2021 by Investigating Officer in the presence of all the parties in this case. The said DAR was related to Motor Vehicular Accident dated 19.11.2020 in which one Sh.
Mukesh Shokeen S/o Layak Ram Shokeen (herein after referred as MACT Case No.315/2021 (FIR no. 402/2020) Smt. Deepika & Ors. v. Manoj Sharma & Ors.
Page no. 2 of 21 deceased) lost his life. A petition U/s 166 and 140 of the Motor Vehicles Act (in short, M.V. Act) was also filed by Petitioner no. 2 to 4 (LRs of deceased Sh. Mukesh Shokeen) seeking compensation of Rs. 1 crore in respect of untimely death of deceased in motor vehicle accident which took place on 19.11.2020. As per the petition, on 19.11.2020 at about 1:45 AM, the deceased Mukesh Shokeen along with his friend Bhavya were coming from Zim Park to their home on motorcycle bearing Regn. No. DL-8SBV-0433 (in short, motorcycle). Deceased Mukesh Shokeen was driving a motorcycle while Bhavya was a pillion rider. When they reached near Sector 2-3 Divider, Kumar Dairy, Sector-3, Rohini, a car bearing Regn. No. DL-1CZ-9672 (in short, offending car) came from wrong side in high speed at hit the motorcycle. Due to which deceased and Bhavya sustained injuries. Both Injureds were taken to Dr. Baba Sahab Ambedkar Hospital, Rohini. During the course of treatment, Mukesh died on 01.11.2020 at about 8:22 AM. An FIR bearing No. 402/2020, PS South Rohini was registered. It is stated that the accident had occurred due to rash and negligent driving of offending Car by Sh. Manoj Sharma (Respondent no. 1, inshort R1). Smt. Sonam, W/o Manoj Sharma (Respondent no. 2, inshort R2) is the registered owner of the offending car. New India Assurance Company Ltd. (Respondent no. 3, inshort R3) is the insurer of the offending car.
2. It is stated that the deceased was the sole bread earner of family. At the time of said accident, he was working as a Business Development Executive in Agility Diagnostic Private Ltd. And MACT Case No.315/2021 (FIR no. 402/2020) Smt. Deepika & Ors. v. Manoj Sharma & Ors.
Page no. 3 of 21 getting salary of Rs. 25,000/- per month.
3. Written statement has been filed on behalf of respondent no.1 and respondent no.2 and, it is, inter alia, submitted that the deceased and his friends were themselves under the state of alcohol and it has also been mentioned in the FIR. The respondents respondent no.1 and R2 are not responsible for the injuries of the deceased. The present petition has been filed to extort money from the answering respondents. The vehicle owned by R2 was fully insured with New India Insurance Company.
4. R3 in its legal offer has stated that deceased was an alcoholic and has no future prospects. Deceased was driving the motor vehicle after the consumption of alcohol. Therefore, 50 % deduction has to be made for contributing negligence. No violation of police condition has been found by the insurer.
ISSUES:
5. After completion of pleadings, following issues were framed by this Tribunal on 01.04.2022: -
1. Whether deceased Mukesh Shokeen S/o Sh. Layak Ram expired due to injuries suffered in a road traffic accident on dt. 19.11.2020 at about 1:45 A.M. at Rohini Sector 2/3 Divider, Near Kumar Dairy, Sector-3, Rohini, Delhi, due to rash and negligent driving of offending vehicle i.e. Car bearing no. DL-
1CZ-9672 which was being driven by driver Sh. Manoj Sharma S/o Sh. Dori Lal Sharma on the said date, time and place ? OPP.
2. Whether the petitioners are entitled to compensation, if so, to what amount and from whom? OPP MACT Case No.315/2021 (FIR no. 402/2020) Smt. Deepika & Ors. v. Manoj Sharma & Ors.
Page no. 4 of 21
3. Relief.
PETITIONER'S EVIDENCE
9. Thereafter, matter was listed for recording of petitioner's evidence. In order to prove its case, petitioner no. 4 Smt. Roshini has been examined as PW1, who has deposed in terms of her affidavit of evidence Ex. PW1/A and has relied on following documents:
a) The photocopies of Aadhar Card of are Ex.
PW-1/2 to Ex. PW-1/6 (OSR).
b) Copy of MLC No. 8558/2020 of Sh. Bhavya is Ex. PW 1/2
c) Copy of MLC No. 8559/2020 of deceased Ex. PW 1/3.
d) Attested copy of post morterm report of deceased is Ex.
PW 1/4.
e) Copy of FIR No. 402/2020, PS South Rohini Ex. PW 1/5.
f) Copy of appointment letter and salary certificate of deceased issued by Agility Diagnostic Pvt. Ltd. are Ex. PW 1/6 and Ex. PW 1/7 respectively.
g) Copy of qualification certificate of deceased is Ex. PW 1/8.
10. In cross-examination, PW1 testified that she is not eye- witness of the accident. Her son (deceased) was earning an amount Rs. 25,000/- to Rs. 30,000/- per month. Her husband was working in DDA and now he has retired and getting pension.
MACT Case No.315/2021 (FIR no. 402/2020) Smt. Deepika & Ors. v. Manoj Sharma & Ors.
Page no. 5 of 21
11. Petitioner no. 1 Smt. Deepika has examined herself as PW2, who has deposed in terms of her affidavit of evidence Ex. PW 2/A and has relied on following documents:
a) The photocopies of her Aadhar Card which are Ex. PW-
2/1.
b) Copy of her complaint and FIR No. 759 dated 19.11.2019, PS Samalkha, Panipat is Ex. PW 2/2.
In her cross-examination, PW2 stated that she is not the eye witness of the said incident. She admits that her son is residing with his grandparents.
12. Sh. Bhavya has been examined as PW3, who has deposed in terms of his affidavit of evidence Ex. PW 3/A and has relied upon the documents i.e. photocopy of his Aadhar Card which is Ex. PW- 3/1 and copy of FIR Ex. PW 3/2.
13. In his cross-examination, PW3 deposed that the FIR No. 402/2020 was registered on the basis of his statement. When his statement was recorded, he was discharged from hospital therefore, he was not in full sense. He denied the suggestion that deceased had also consumed alcohol before driving the motorcycle. He admits that father of deceased had retired from DDA and getting pension from DDA.
14. Thereafter, petitioner's evidence was closed and matter was listed for respondent's evidence. No evidence has been lead by MACT Case No.315/2021 (FIR no. 402/2020) Smt. Deepika & Ors. v. Manoj Sharma & Ors.
Page no. 6 of 21 the respondents.
FINDINGS:
15. I have heard Ld. Counsel for the parties and have gone through the testimony of witnesses including the pleadings and the documents and written submissions filed by ld. Counsel for parties. I have also gone through the statement of the petitioner recorded under Clause 26 MCTAP. My issue wise findings in the case are as under :-
ISSUE NO.1
16. It is well settled that the procedure followed for proceedings conducted by an accident tribunal is similar to that followed by a civil court and in civil matters the facts are required to be established by preponderance of probabilities only and not by strict rules of evidence or beyond reasonable doubts as are required in a criminal prosecution. The burden of proof in a civil case is never as heavy as that is required in a criminal case, but in a claim petition under the Motor Vehicles Act, this burden is infact even lesser than that in a civil case. Reference in this regard can be made to the propositions of law laid down by the Hon'ble Supreme Court in the case of Bimla Devi and others Vs. Himachal Road Transport Corporation and others, reported in (2009) 13 SC 530, which were reiterated in the subsequent judgment in the case of Parmeshwari Vs. Amir Chand and others 2011 (1) SCR 1096 MACT Case No.315/2021 (FIR no. 402/2020) Smt. Deepika & Ors. v. Manoj Sharma & Ors.
Page no. 7 of 21 (Civil Appeal No.1082 of 2011) and also recently in another case Mangla Ram Vs. Oriental Insurance Co. Ltd. & Ors., 2018 Law Suit (SC) 303.
17. In order to prove this issue, the petitioners have examined PW-1 Smt. Roshini, PW2 Smt. Deepika and PW3 Sh. Bhavya. PW1 and PW 2 are not eye witness of the incident. PW3 is eye witness of the accident and also he had sustained injuries in the accident. PW-3 has categorically deposed that on 19.11.2020, at about 1:45 AM h alongwith deceased were coming to their house on motorcycle from Zim Park. Deceased was drivng the motorcyce and he was pillion rider. When they reached near Kumar Dairy, Sector-3, Rohini, the offending car came from wrong side which was being driven from Respondent no. 1 in rash and negligent manner and in high speed. Respondent no. 1 struck offending car into their motorcycle and ran away from the spot. PW3 and deceased sustained injuries and were got admitted in Dr BSA Hospital. Deceased was referred to Dr. RML Hospital where he died during the course of treatment. The testimony of PW3 against the respondent no.1 is corroborated by the documentary evidence that respondent no.1 was present at the spot and driving the offending car at the time of accident. Therefore, the case does not warrant any other best evidence. Keeping in view the facts & evidence produced by the petitioners, it has proved on record that the said accident has taken place due to the rash and negligent driving of the offending car being driven by respondent no.1, as a result of which, the deceased had expired. Needless to say, MACT Case No.315/2021 (FIR no. 402/2020) Smt. Deepika & Ors. v. Manoj Sharma & Ors.
Page no. 8 of 21 the injuries mentioned in the MLC/postmortem of the deceased is consistent with the injuries which are sustained by deceased resulting into his death.
18. The FIR has been lodged against the respondent no.1 and he has faced criminal charges of causing death of the deceased in the said accident.
19. In view of the aforesaid discussion and the evidence which has come on record, it is held that the rashness and negligence on the part of driver of the offending car, which is clearly visible and as such, was responsible not only for this accident, but also for everything that followed thereafter. Accordingly issue no.1 is decided in favour of the petitioners and against the respondents.
ISSUE NO. 220. As this Tribunal has already held that R1 was responsible for the death of the deceased due to his neglect and default in driving the offending vehicle at the relevant time. Therefore, the petitioners have become entitled to be compensated for death of deceased in the above accident, but computation of compensation and liability to pay the same are required to be decided.
21. Ld. Counsel for Respondent no. 1, Respondent no. 2 and Ld. Counsel for Respondent no. 3 argued that there should be MACT Case No.315/2021 (FIR no. 402/2020) Smt. Deepika & Ors. v. Manoj Sharma & Ors.
Page no. 9 of 21 deduction of 50 % towards contributing negligence as PW3 in his statement made to the police had stated that he and deceased consumed alcohol before proceeding to their home on motorcycle. The statement made by PW3 to police shows that deceased was driving after consuming alcohol at the time of accident. On the other hand, Ld. Counsel for petitioners argued that no traces of alcohol were found in the MLC or in the post-morterm report. Therefore, there should not be in deduction towards contributing negligence.
22. PW3, in his cross-examination has categorically deposed that only he had consumed alcohol before riding the motorcycle which was being driven by the deceased. The deceased had not consumed alcohol moreover, no traces of alcohol had been found in the blood of deceased in the MLC Ex. PW 1/3 and post-morterm report Ex. PW 1/4. No evidence has been lead by the respondents to prove that the deceased was driving the motorcycle after he consumed the alcohol at the time of accident. No material is available on record to ascertain the content of alcohol in the blood stream of deceased at the relevant time. Here it would be appropriate to cite the observations made by a Division Bench, of Hon'ble Andhra Pradesh High Court in Bajaj Allianz General Insurance Company Ltd Vs Manju Devi, 2014 SCC OnLine AP
232. Relevant paragraph of the said judgment are reproduced for ready reference:-
" 21. As seen from the material available on record, the driver of the Car was in drunken state, at the time of accident, more particularly, in view of Exs. X-1 & X2-Reports, since it is not the case of the second respondent that the samples were MACT Case No.315/2021 (FIR no. 402/2020) Smt. Deepika & Ors. v. Manoj Sharma & Ors.
Page no. 10 of 21 tampered and that the blood samples were not properly analyzed. In the absence of any dispute regarding analysis, we are of the considered view that the report of RW.2, marked as Ex. X1, is to be accepted. Hence, accepting the report of RW2, marked as Ex. X1, we find that the driver was in drunken state at the time of accident.
22. The main contention of learned standing counsel for the second respondent-Insurance Company is that the Insurance Company is not liable, as driving Car by the driver in a drunken state amounts to violation of terms and conditions of the policy by the owner. In view of our finding in the earlier paragraphs, the second respondent-Insurance Company established that the driver of the Car was in drunken state, at the time of accident. However, it is the duty of this Court to find out whether entrustment of the Car to the driver, who was in drunken state, at the time of accident, amounts to violation of terms and conditions of the policy by the first respondent. Ex.B-1 is the insurance policy containing several conditions. The main condition pertaining to driver is mentioned in Ex.B- 1, which is extracted hereunder for better appreciation:
DRIVER : Any person including the insured, Provided that a person driving holds an effective driving license at the time of accident and is not disqualified from holding or obtaining such a license, Provided also that the person holding an effective Learners license may also drive the vehicle and that such a person satisfies the requirements of Rule 3 of the Central Motor Vehicles rules, 1989.
23. In view of this condition, a person who is competent to hold and not disqualified from obtaining driving license to drive the Car, at the time of accident, is competent to drive the Car, but the terms and conditions of the policy regarding third party liability contained in Ex.B-1 are as follows:
"1. Subject to the Limits of Liability as laid down in the Schedule hereto, the Company, will indemnify the Insured in the event of an accident caused by or arising out of the Motor Car, against all sums which the Insured shall become legally liable to pay in respect of:
a. death of or bodily injury to any person including occupants carried in the Motor Car (provided such occupants are not carried for hire or reward) but except so far as it is necessary to meet the requirements of Motor Vehicles Act the Company shall not be liable where such death or injury arises out of and in the course of the employment of such person by the insured.
MACT Case No.315/2021 (FIR no. 402/2020) Smt. Deepika & Ors. v. Manoj Sharma & Ors.
Page no. 11 of 21
24. But, in the said condition, the driver of Car in drunken state is not a ground to disown the liability by the Insurance Company, but however, in Section 3 of terms and conditions regarding personal accident cover for the owner driver, there are clauses which enables the second respondent-
Insurance Company to avoid its liability, which is extracted hereunder, for better appreciation:
1. The Company undertakes to pay compensation as per the following scale for bodily injury/death sustained by the owner driver of the vehicle, in direct connection with the vehicle insured or whilst driving or maintaining into/dismounting from the vehicle insured or whilst travelling in it as a co-driver, caused by violent accidental external and visible means which independent of any other cause shall within six calendar months of such injury result in:
(i) .. (ii) .. (iii) .. (iv) .. (a) ..
(b) No compensation shall be payable in respect of death or bodily injury directly or indirectly, wholly or in part arising or resulting from or traceable to (1) Intentional self injury suicide or attempted suicide physical defect or infirmity or (2) an accident happening whilst such person is under the influence of intoxicating liquor or drugs.
25. From a bare look at the conditions contained in Ex.B1-policy, drunk and drive exonerates the second respondent-Insurance Company for personal accident cover of the owner and driver, but not the third parties. The conditions specified under the policy with regard to liability to pay compensation for third party risk and driving the vehicle by the driver of the Car in drunken state would not exonerate the second respondent- Insurance company from payment of compensation. However, Insurance Company is not liable when the vehicle was driven by driver in drunken state, in view of the terms and conditions extracted above, in personal injury claims. Perhaps, the third party is not supposed to know about the intoxicated state of driver, when he was proceeding on the road. Therefore, policy conditions did not exonerate the Insurance Company from payment of compensation to third parties, though MACT Case No.315/2021 (FIR no. 402/2020) Smt. Deepika & Ors. v. Manoj Sharma & Ors.
Page no. 12 of 21 the Car was driven by a driver in drunken state. However, the ill- affects of intoxication have to be looked into while driving the vehicle".
23. It may be noted that R-3/ Insurance Company has not bothered to place on record a copy of the terms and conditions of the insurance policy of offending vehicle. Only a 'Policy Schedule- cum-Certificate of Insurance' running into two pages is available as an annexure of the DAR. The terms and conditions mentioned therein don't seem dissimilar to the terms and conditions referred in the above judgment.
24. The Hon'ble High Court of Karnataka has held in National Insurance Company Ltd Vs Mallikarjuna and Ors, MANU/KA/6179/2019 as well as The Divisional Manager, National Insurance Company Ltd Vs Chinnamma and Ors, MANU/KA/5967/2019 that the liability of insurance company does not cease in case the driver of the offending vehicle is convicted u/s 185 of the MV Act as the defence of the "drunkardness" is not available either u/s 147 or Section 149 of the MV Act. Hon'ble Delhi High Court has also ruled so in a case titled as Universal Sompo General Insurance Company Ltd Vs Vijay & Vicky and Anr in MAC.App. 678/2011 decided on 9th July, 2012. In the facts and circumstances, the above defence regarding 'inebriated state' of deceased at the relevant time stands rejected.
COMPENSATION
25. Basically only three facts need to be established by the MACT Case No.315/2021 (FIR no. 402/2020) Smt. Deepika & Ors. v. Manoj Sharma & Ors.
Page no. 13 of 21 claimants for assessing compensation in the case of death :
(a) age of the deceased;
(b) income of the deceased; and the
(c) the number of dependents.
26. The issues to be determined by the Tribunal to arrive at the loss of dependency are
(i) additions/deductions to be made for arriving at the income;
(ii) the deduction to be made towards the personal living expenses of the deceased; and
(iii) the multiplier to be applied with reference of the age of the deceased.
27. If these determinants are standardized, there will be uniformity and consistency in the decisions. There will be lesser need for detailed evidence. In this regard, though not quoted, reliance is placed upon, Sarla Verma & Ors. v. Delhi Transport Corporation & Anr. (2009) 6 SCC 121.
28. As already stated above, the claimants/petitioner no.1 is the wife, petitioner no.2 is son, petitioner no.3 is the father and petitioner no. 4 is the mother of deceased. PW1 deposed that the deceased was working as a business developer executive in Agility Diagnostic Pvt. Ltd and was withdrawing salary of Rs. 25,000/- per month. PW 1 relied upon the appointment letter Ex. PW 1/6 and salary slip Ex PW 1/7 to prove the salary of deceased. However, no witness have been examined from Agility Diagnostic Pvt Ltd. The MACT Case No.315/2021 (FIR no. 402/2020) Smt. Deepika & Ors. v. Manoj Sharma & Ors.
Page no. 14 of 21 appointment letter Ex. PW 1/6 does not bear any date, nor it bears the complete name of the person who had signed it on behalf of the Agility Diagnostics Pvt Ltd. As per appointment letter, deceased was offered to join the position of Business Development Executive from 01.11.2020. No joining letter has been placed on record. As per salary certificate EX. PW1/7, father of deceased was asked to collect one month salary of deceased for the month of November 2020 but there is no evidence on record to prove that the said salary was given by Agility Diagnostics Pvt. Ltd. And received by the parents of the deceased. Thus, the petitioners have failed to prove that deceased was working in Agility Diagnostic Private Ltd and drawing monthly salary of Rs. 25,000/- before his death in the accident.
29. Therefore, the income of the deceased, as on the date of the accident, has been treated as that of "unskilled person". As per the evidence led by petitioners, the deceased has passed 12 th class and the mark-sheet of 12th class issued by the National Institute of Open School is Ex.PW-1/8 (colly) has been placed on record. Therefore, on the date of accident i.e 19.11.2020, the minimum wages of unskilled labour having matriculation certificate in Delhi is Rs.15,492/- per month.
30. The ld. Counsel for the petitioners further argued that future prospects should also be awarded to the petitioners as per law. Ld. Counsel for the petitioners has submitted that the deceased was MACT Case No.315/2021 (FIR no. 402/2020) Smt. Deepika & Ors. v. Manoj Sharma & Ors.
Page no. 15 of 21 the sole earning member of the family and all the petitioners/claimants were dependent upon him for their livelihood. The ld. Counsel for the petitioners further argued that future prospects should also be awarded to the petitioners as per law.
31. Accordingly, on the basis of aforementioned documents, age of the deceased is taken as 24 years as on the date of accident. Hence, the multiplier of "18" would be applicable in view of pronouncement made in case titled as Sarla Verma (supra).
32. Considering the fact that deceased was aged about 24 years of age at the time of accident and was not having a permanent job at that time, future prospects @ 40% has to be awarded in favour of petitioners in view of recent pronouncement made by Constitutional Bench of Apex Court in the case titled as National Insurance Company Ltd. v. Pranay Sethi & Ors., (2017) 16 SCC 680, as well as in view of recent decision of Hon'ble Delhi High Court in appeal Bajaj Allianz General Insurance Company Ltd. Vs. Pooja & Ors, in MAC APP No. 798/2011.
33. The deceased was married and there are four claimants/ dependants upon him (i.e. petitioner no.1/wife, petitioner no.2/ minor son, petitioner no. 3/father and petitioner no. 4/mother). Ld. Counsel for petitioner no. 2 to 4 argued that petitioner No. 1 (Wife) is not entitled for any compensation as she has remarried. He further argued that petitioner no. 2 (son) is residing with his grandparents MACT Case No.315/2021 (FIR no. 402/2020) Smt. Deepika & Ors. v. Manoj Sharma & Ors.
Page no. 16 of 21 i.e. petitioner no. 3 and 4 who are looking after him. Ld. Counsel for petitioner no. 1 is that the mere fact of remarriage by petitioner no. 1 does not debar her for receiving compensation in MACT Case.
34. In Glains and Ors. Vs. Lazar Manjila and Ors., 2020 ACJ 3015, Hon'ble High Court of Kerala held as follows:
"22. It is to be noted that the 1 st appellant would not have thought of a remarriage, but for the untimely death of her husband. It was not a remarriage on account of divorce. The Court has to consider the psychological hurdles that the MACA No.1936/2008 widow will face on account of remarriage. The society is changing. The age old concept of a remarried widow cutting off all relations with the family of her ex-husband, is becoming a story of the past. Fact remains that the 1 st respondent was dependent on the deceased and would have remained so, but for the demise of her husband consequent to the accident. The death has indeed resulted in loss of dependency. After the death of husband, a widow may go for employment and become self-dependent or may opt for remarriage. Either way, the loss of dependency consequent to the death of the husband does not cease merely because she has remarried or became self-reliant. The word dependency and legal representative, therefore, should receive a pragmatic interpretation. While computing compensation for dependency of a widow on the death of her husband under Section 166 of the Motor Vehicles Act, 1988, her remarriage shall not be a decisive factor.
35. Therefore, remarriage by a widow shall not be a requisite factor while calculating the compensation in a petition U/s 166 MV Act/ DAR and she is entitled for compensation as per law.
36. Petitioner no. 3 is the father of the deceased. However, as per the testimony of PW1 and PW3, petitioner no. 3 has retired from DDA and is drawing pension. Therefore, he was not dependent on MACT Case No.315/2021 (FIR no. 402/2020) Smt. Deepika & Ors. v. Manoj Sharma & Ors.
Page no. 17 of 21 the deceased. Thus, there are only three dependants and there has to be deduction of "one third (1/3)", as per the mandate of Sarla Verma (supra). Thus, total loss of dependency would come out as under:
S. Head Amount Remarks No (Rs.) .
1 Monthly Income of deceased Sh. 15,492 Vinay Kumar (A) 2 Add: Future prospects @ 40% 6,196.8 40% of (A) (B) 3 Less: Personal expenses of 7229.6 [(A)+ (B)] / deceased @ one fourth (1/3) 3= (C) (C) 4 Monthly loss of dependency 14,459.2 [(A)+(B)]-
(D) (C)= (D)
5 Annual Loss of dependency 173510.4 (D) x 12 = (E)
(E)
6 Multiplier @ 15
7 Total Loss of dependency 31,23,187.2 (E) x
18(multiplier)
(F)
= (F)
Rounded Off to: 31,23,187
LOSS OF LOVE & AFFECTION
37. After the judgment passed in National Insurance Company Ltd. v. Pranay Sethi & Ors. (supra) and recent judgment titled as New India Assurance Company Limited v. Somwati & Ors., Civil Appeal no. 3093 of 2020 the petitioners are not entitled to be compensated under this head. Further, Hon'ble Delhi High Court in appeal titled as Bajaj Allianz General Insurance MACT Case No.315/2021 (FIR no. 402/2020) Smt. Deepika & Ors. v. Manoj Sharma & Ors.
Page no. 18 of 21 Company Ltd. Vs. Pooja & Ors, (supra) has been pleased to observe in para 18 of the judgment that the Constitution Bench decision in Pranay Sethi (supra) does not recognize any other non- pecuniary head of damages. Hence, no amount of compensation is being awarded under this head.
LOSS OF CONSORTIUM
38. In view of the judgment of Hon'ble Supreme Court in case titled as, "New India Assurance Company Limited v. Somwati & Ors.", Civil Appeal No.3093 of 2020, dated 07.09.2020, I am of the considered opinion that the wife, mother, father and minor son of deceased are entitled for payment of Rs.40,000/- each towards loss of consortium. Consequently, a sum of Rs.1,60,000/- (Rs.40,000/- x
4) is awarded to the petitioners under this head.
LOSS OF ESTATE & FUNERAL EXPENSES
39. In view of the facts and circumstances of the present case and in view of decision of Hon'ble Apex Court in the case of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors." mentioned supra, a sum of Rs. 15,000/- is awarded in favour of petitioners on account of loss of estate and a sum of Rs. 15,000/- is awarded in favour of petitioners on account of funeral expenses. Thus, the total compensation is assessed as under:
S. No. Head Amount (Rs.)
1 Loss of dependency 31,23,187
MACT Case No.315/2021 (FIR no. 402/2020) Smt. Deepika & Ors. v. Manoj Sharma & Ors.
Page no. 19 of 21
2 Loss of Consortium (Rs.40,000 x 4) 1,60,000
3 Loss of Estate &Funeral Expenses 30,000
(@ 15,000/- each)
TOTAL 33,13,187/-
40. Hence, the petitioners are awarded total compensation of Rs. 33,13,187/- (Rupees Thirty Three Lakh Thirteen Thousand One Hundred Eighty Seven Only).
LIABILITY
41. Respondent No. 1 Driver and Respondent no. 2 being the owner of the offending car are jointly and severely liable to pay the compensation to the petitioners. However, since the offending car was insured with respondent no. 3 at the time of accident, therefore, respondent no. 3/ Insurance Company is liable to indemnify R1 and R2 in respect of above liability. As such, Respondent no. 3/ Insurance company is liable to pay the compensation to the petitioners.
ISSUE No.3: RELIEF
42. In view of the aforesaid discussion, this tribunal awards compensation of Rs. 33,13,187/- (Rupees Thirty Three Lakh Thirteen Thousand One Hundred Eighty Seven Only) alongwith interest @ 9% per annum w.e.f the date of filing of the DAR, i.e. 06.10.2021 till the date of its realization in favour of petitioners.
MACT Case No.315/2021 (FIR no. 402/2020) Smt. Deepika & Ors. v. Manoj Sharma & Ors.
Page no. 20 of 21 APPORTIONMENT
43. It is noted that statement of claimant/ petitioner no. 2 namely master Nakul in terms of Clause 26 MCTAP was not recorded, therefore, the apportionment is withheld.
44. Respondent no. 3/ Insurance Company is directed to deposit the Award amount in the SBI, Rohini Court Branch within 30 days as per above order, failing which he shall be liable to pay interest @ 9% p.a for the period of delay. Copy of the award be given dasti to petitioner/claimant as well as respondent no. 3.
45. Form V and IVB in terms of MCTAP are annexed herewith as Annexure-A. A separate file be prepared for compliance report by the Nazir and put up the same on 18.08.2023.
File be consigned to record room after due compliance.
ANNOUNCED IN THE OPEN COURT Digitally signed
ON 18th DAY OF June, 2023 by GAGANDEEP
GAGANDEEP JINDAL
JINDAL Date:
2023.07.18
(GAGANDEEP JINDAL)
16:02:22 +0530
ADJ-1+MACT, NORTH WEST,
ROHINI COURTS, DELHI
MACT Case No.315/2021 (FIR no. 402/2020) Smt. Deepika & Ors. v. Manoj Sharma & Ors.
Page no. 21 of 21