Delhi District Court
Prem Lata Singh And Ors (Lrs Of Ashish) vs Mohammed Yaseen And Ors on 4 April, 2024
MACP No. 362/19; FIR No. 131/19; PS. Adarsh Nagar DOD:04.04.2024
IN THE COURT OF MS. RICHA MANCHANDA, PRESIDING
OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNAL,
NORTH DISTRICT, ROHINI COURTS, DELHI
MAC Petition No. 362/19
UID/CNR No. DLNT01-005540-2019
1. Smt. Prem Lata Singh,
W/o Late Sh. Ashish Kumar Singh,
R/o H.No. 361-A, Dheerpur,
Nirankari Colony,
Delhi.
(Widow of deceased)
2. Smt. Vidyawati,
W/o Sh. Ghanshyam Singh,
(Minor son of deceased)
3. Sh. Ghanshyam Singh,
W/o Sh. Ramjee Singh,
(Mother of deceased)
Both R/o. H.No. 34,
Mainabhagar,
Near Shiv Mandir,
District Gorakhpur,
Gorakhpur, UP.
..........Petitioners
VERSUS
1. Mohammed Yaseen,
S/o Mohammed Naseem,
R/o 52, New No. 2871,
Near Masjid, Kewal Park Extn.,
Azadpur, Delhi.
(Driver)
Smt. Prem Lata Singh & Ors. Vs. Mohammed Yaseen & Ors. Page 1 of 31
MACP No. 362/19; FIR No. 131/19; PS. Adarsh Nagar DOD:04.04.2024
2. M/s. Anmol Products,
C-47, New Sabzi Mandi,
Azadpur,
New Delhi.
(Registered Owner)
3. IFFCO Tokio General Insurance Co. Ltd.
I-107A, First Floor,
Kirti Nagar, Delhi.
(Insurer)
............Respondents
Date of Institution : 01.07.2019
Date of Arguments : 04.04.2024
Date of Judgment : 04.04.2024
APPEARENCE(S):
Sh. U.C. Rai, Ld. Counsel for petitioner no. 1.
Sh. Manoj Bhandari, Ld. Counsel for petitioners no. 2 & 3. Sh. Parvez Alam, Ld. Counsel for driver and owner.
Sh. S.K. Tyagi, Ld. Counsel for insurance company.
Petition under Section 166 & 140 of M.V. Act, 1988 for grant of compensation AWARD
1. The present petition has been filed by the petitioners U/s 166 & 140 M.V.Act seeking compensation of Rs. 50,00,000/ alongwith interest @ 12% per annum from the date of filing of the present claim petition till its realization being legal representatives of deceased Ashish Kumar Singh, who died in road traffic accident in question which occurred on 05.05.2019. The Smt. Prem Lata Singh & Ors. Vs. Mohammed Yaseen & Ors. Page 2 of 31 MACP No. 362/19; FIR No. 131/19; PS. Adarsh Nagar DOD:04.04.2024 petitioners also prayed for compensation for irreparable monetary loss, mental agony, loss of love and affection and future prospects plus all other heads of compensation as per entitlement, caused due to accidental death of deceased.
2. The concise material facts relevant to decide the present claim petition as averred are that on 05.05.2019, deceased Ashish Kumar Singh (aged about 30 years) was going on foot and as he reached near Azadpur Mandi, Near Metro Pillar No. 86, one motorcycle bearing temporary registration no. DL9TC-1831(Permanent registration no. DL9S-BU-3122) which was being driven by its driver (respondent no. 1 herein) in a rash and negligent manner, came from Model Town side to GTK Road and hit against the deceased with a great force, as a result of which, deceased sustained grievous injuries. He was immediately taken to BJRM Hospital, Jahangir Puri, Delhi, where he was declared dead. Postmortem of the deceased Sanjay was conducted at the mortuary of BJRM Hospital, Jahangir Puri, Delhi. A case U/s 279/304A IPC was registered at PS. Adarsh Nagar vide FIR No. 131/19 with regard to the accident in question. The petitioners have claimed that the accident has taken place due to rash and negligent driving of aforementioned offending vehicle which was allegedly being driven by respondent no.1/driver. The offending vehicle was found to be owned by respondent no. 2 and was duly insured with respondent no. 3/IFFCO Tokio General Insurance Co. Ltd., at the time of accident in question.
Smt. Prem Lata Singh & Ors. Vs. Mohammed Yaseen & Ors. Page 3 of 31MACP No. 362/19; FIR No. 131/19; PS. Adarsh Nagar DOD:04.04.2024
3. In their joint written statement, the respondent no.1 and 2 i.e. driver and registered owner have claimed that on 05.05.2019 at about 8:30 AM, the respondent no. 1 was going to Rohini on his motorcycle and he was driving the vehicle following the rules of driving and suddenly the deceased who was running behind the DTC bus as he wanted to catch the bus, came in front of his motorcycle, due to which deceased sustained injuries. It has been claimed that the respondent no.1 has also sustained injuries and got medical treatment from Babu Jagjivan Ram Hospital. It has been further claimed that there was no pedestrian road to cross the road, zebra line and underpass at the place of accident. It has also been claimed that one person namely Mohammed Salim had seen the accident and he approached the IO to record his statement but IO did nothing. It has been claimed that police official was a planted witness and there was no liability of respondent no. 1 & 2 as offending vehicle was insured with respondent no.3.
4. Respondent no. 3/insurance company filed its legal offer, whereby it had offered to pay a sum of Rs. 24,62,320/- as compensation towards full and final satisfaction of the claim raised by petitioners for the fatal injury sustained by deceased in the accident in question. However, the said offer was not acceptable to the petitioners.
5. From the pleadings of the parties and the documents, the following issues were framed vide order dated 09.01.2020:-
Smt. Prem Lata Singh & Ors. Vs. Mohammed Yaseen & Ors. Page 4 of 31MACP No. 362/19; FIR No. 131/19; PS. Adarsh Nagar DOD:04.04.2024
1) Whether the deceased Sh. Ashish Kumar Singh suffered fatal injuries in road traffic accident on 05.05.2019 at 8:30 AM at Azadpur Mandi Gate, Near Pillar No. 86, Azadpur, Delhi, within the jurisdiction of PS Adarsh Nagar due to rashness and negligence on the part of the driver Mohd. Yaseem/R-1 who was driving the motorcycle bearing registration no. DL9TC-1831, owned by M/s. Anmol Products/R-2 and insured with IFFCO Tokio General Insurance Co. Ltd./R-3?OPP.
2) Whether the LRs of deceased are entitled to any compensation if so to what amount and from whom?
OPP.
3) Relief.
6. In order to establish his claim, the petitioners have examined three witnesses. PW1 Smt. Vidyawati Devi(widow of deceased), PW2 Shri Kishan Mahto(official from employer of deceased) and PW3 Ct. Abhishek(complainant). On the other hand, respondents did not lead any evidence and respondent's evidence was closed vide order dated 01.05.2023.
7. This Tribunal has carefully perused DAR/claim petition, evidence led by parties has been duly appreciated. All documents and material relied upon & proved considered. Arguments addressed by respective counsels considered. Legal position, both statutory and binding applicable precedents, has been appreciated. The issue wise determination is as under:-
Smt. Prem Lata Singh & Ors. Vs. Mohammed Yaseen & Ors. Page 5 of 31MACP No. 362/19; FIR No. 131/19; PS. Adarsh Nagar DOD:04.04.2024 ISSUE NO. 1
8. For the purpose of this issue, the testimony of PW3 Ct. Abhishek (eyewitness) is relevant. He deposed that he had seen the certified copy of his statement/evidence dated 15.12.2022, recorded in case FIR No. 131/2019, PS. Adarsh Nagar before the court of Ms. Neha Pandey, Ld. MM-06, North District, Rohini Courts, Delhi and exhibited the same as Ex. PW3/1. In his cross examination by Ld. counsel for insurance company, he deposed that he was on duty at Panchwati red light on the date of accident and the distance between place of accident and red light signal was about 70-80 meter. He further deposed that the spot of accident was neither a T- point nor a crossing. He deposed that red light was in the working condition at the time of accident and he was controlling the traffic at the red light from both the sides. He further deposed that at the time of accident, he was standing on the side of Azadpur Mandi and was keeping a watch on the traffic which was coming by way of U-turn towards Azadpur Mandi From Jahangirpuri side as well as the traffic coming from Model Town side towards Azadpur Mandi. He deposed that there was no zebra crossing at the spot of accident. He further deposed that when he heard the sound of accident, he immediately saw the accident. He further deposed that the spot of accident was almost middle of the road. He deposed that he did not see the deceased crossing the road.
Smt. Prem Lata Singh & Ors. Vs. Mohammed Yaseen & Ors. Page 6 of 31MACP No. 362/19; FIR No. 131/19; PS. Adarsh Nagar DOD:04.04.2024
9. The careful perusal of testimony of aforesaid witness i.e. PW2 would go to show that the respondents have not been able to impeach his testimony through litmus test of cross-examination. Even otherwise, the testimony of aforesaid witness inspires confidence with regard to his presence at the spot at the time of accident as his name also finds mentioned in the list of witnesses filed alongwith the chargesheet by the IO in the criminal case. Moreover, FIR in the present case bearing No. 131/19 u/s 279/304A IPC was registered at PS. Adarsh Nagar with regard to accident in question on the statement of aforesaid witness only i.e. PW3 Ct. Abhishek on 05.05.2019 i.e. on the date of accident itself. Thus, FIR is shown to have been registered promptly and without any delay. Hence, there is no possibility of false implication of respondent no. 1 and/or false involvement of offending vehicle at the instance of petitioners herein.
10. During the arguments, Ld. Counsel for petitioners heavily relied upon criminal case record (Ex. PW1/10 to Ex. PW1/15 colly) in support of case of petitioners in order to bring home that the accident in question had taken place due to the rash and negligent driving of offending vehicle i.e. Motorcycle bearing registration No. DL9S-BU-3122, by its driver/respondent no. 1. It has been contended that respondent no. 1 Mohd. Yaseen was also chargesheeted by police for offences punishable U/s 279/304A IPC, which clearly establishes that the accident had taken place due to rash and negligent driving of offending vehicle by respondent no. 1. Per contra, it is argued by Smt. Prem Lata Singh & Ors. Vs. Mohammed Yaseen & Ors. Page 7 of 31 MACP No. 362/19; FIR No. 131/19; PS. Adarsh Nagar DOD:04.04.2024 Ld. Counsel for insurance company that the accident in question had occurred due to the negligence of deceased as the accident had occurred in the middle of the road where there was no zebra crossing.
11. The facts of the case, arguments of the Ld. Counsels, evidence, material on record and duly verified documents of the criminal case, have been carefully examined and scrutinized. Respondent no. 1 namely Mohd. Yaseen has been charge sheeted for offences punishable U/s. 279/304A IPC by the investigating agency after arriving at the conclusion on the basis of investigation carried out by it that the accident in question has taken place due to rash and negligent driving of offending vehicle/motorcycle. A case U/s 279/304A IPC was registered at PS. Adarsh Nagar vide FIR No. 131/19 soon after the accident in question, without any inordinate delay as deceased unfortunately did not survive due to the fatal injuries suffered by him, despite being immediately taken to the nearby hospital i.e.BJRM Hospital, Jahangir Puri, Delhi.
12. Perusal of the mechanical inspection report dated 08.05.2019 (Ex. PW1/13) of the offending vehicle would show fresh damages i.e. its head light visor right upper side portion was broken; its left side body parts were found scratched and its engine body left side portion was also found scratched. The said report also corroborates that offending vehicle/motorcycle came from behind and hit the deceased. The site plan annexed with the criminal case record has been prepared during the Smt. Prem Lata Singh & Ors. Vs. Mohammed Yaseen & Ors. Page 8 of 31 MACP No. 362/19; FIR No. 131/19; PS. Adarsh Nagar DOD:04.04.2024 investigation. The spot of accident at point A, as per site plan, shows that offending motorcycle hit the victim from behind, thereby causing fatal injuries to deceased.
13. As per law, 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. The nature and manner of damage to the offending vehicle i.e. Motorcycle bearing registration no. DL9S-BU-3122 due to accident clearly points out to rash and negligent manner of driving of offending vehicle by respondent no. 1/driver, thereby causing fatal injury to the victim.
14. It is pertinent to note that the respondent no.1/driver of offending vehicle was the other material witness to throw light by testifying as to how and under what circumstances, the accident has taken place. However, he has preferred not to enter the witness box. Thus, an adverse inference is liable to be drawn against him to the effect that the accident in question has taken place due to rash and negligent driving of the offending vehicle bearing registration no. DL9S-BU-3122 by respondent no. 1. There is nothing on record to show that the petitioners had any enmity with the driver of the offending vehicle so as to falsely implicate him in this case. Reliance placed on Cholamandalam MS General Insurance Co. Ltd. V. Kamlesh & Ors, MAC APP. No. 530/2008 passed by Hon'ble Delhi High Court on 11.11.2008.
Smt. Prem Lata Singh & Ors. Vs. Mohammed Yaseen & Ors. Page 9 of 31MACP No. 362/19; FIR No. 131/19; PS. Adarsh Nagar DOD:04.04.2024
15. Apart from above, copy of postmortem report (Ex. PW1/12) also corroborates that cause of death of deceased was hemorrhagic shock due to injuries to liver and multiple bones produced by blunt force impact. The injuries as mentioned in the relevant column of external injuries of the said report, are also consistent with the injuries which are sustained in road traffic accident. It is established that the deceased succumbed to his injuries sustained in the road accident in question and unfortunately died due to accidental injuries.
16. In view of the aforesaid discussion and the evidence which has come on record, it is held that petitioners have been able to prove on the basis of preponderance of probability that deceased had sustained fatal injuries in the Motor Vehicular Accident which has occurred on 05.05.2019 at about 8:30 AM near Azadpur Mandi, Near Metro Pillar No. 86, due to rash and negligent driving of offending vehicle(Motorcycle) bearing registration no. DL9S-BU-3122 by respondent no. 1. Thus, issue no. 1 is decided in favour of petitioners and against the respondents.
ISSUE NO. 217. The petitioners who are claimants are the widow and parents of deceased. It is evident that the petitioners have actually suffered monetary loss and mental agony due to death of deceased. Accordingly, petitioners are entitled for just and fair compensation in the present case.
Smt. Prem Lata Singh & Ors. Vs. Mohammed Yaseen & Ors. Page 10 of 31MACP No. 362/19; FIR No. 131/19; PS. Adarsh Nagar DOD:04.04.2024
18. Section 168 of the Motor Vehicle Act 1988 enjoins upon the Claims Tribunal to hold an inquiry into the claim to make an award determining the amount of compensation which appears to it to be just and reasonable. The guiding principles for assessment of "just and reasonable compensation" in fatal case has been laid down by Hon'ble Supreme Court of India, in case titled as Smt. Anjali & Ors., Vs. Lokendra Rathod & Ors, in Civil Appeal No. 9014 of 202, decided on 06.12.2022 that: -
"The provisions of the Motor Vehicles Act, 1988 (for short, "MV Act") gives paramount importance to the concept of 'just and fair' compensation. It is a beneficial legislation which has been framed with the object of providing relief to the victims or their families. Section 168 of the MV Act deals with the concept of 'just compensation' which ought to be determined on the foundation of fairness, reasonableness and equitability. Although such determination can never be arithmetically exact or perfect, an endeavor should be made by the Court to award just and fair compensation irrespective of the amount claimed by the applicant/s. In Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr.3, this Court has laid down as under:
"16."Just compensation" is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by Smt. Prem Lata Singh & Ors. Vs. Mohammed Yaseen & Ors. Page 11 of 31 MACP No. 362/19; FIR No. 131/19; PS. Adarsh Nagar DOD:04.04.2024 applying the well settled principles relating to award of compensation. It is not intended to be a bonanza, largesse or source of profit."
19. The Hon'ble Apex Court has held that the compensation should be just and is not expected to be a windfall or a bonanza nor it should be niggardly or a pittance. Reliance is placed on 2012 (8) SLT 676 titled K. Suresh Vs. New India Assurance Co. Ltd. The aforesaid Principle of law has also been reiterated by a landmark judgment of the Hon'ble Supreme court in 2017 (13) SCALE 12 : 2017 XI AD (SC) 113 titled National Insurance Co. Ltd. Vs. Pranay Sethi and Ors. Accordingly, the quantum of appropriate and adequate compensation to the victim of road accident is to be derived after assessment of various relevant parameters, as per law. Hereinafter, assessment is divided into several criteria, as applicable to the facts of the present case.
LOSS OF DEPENDENCY
20. The claimants/petitioners are the widow and parents of deceased. PW1 Smt. Vidyawati Devi (mother of deceased) has deposed in her evidence by way of affidavit Ex. PW1/A that deceased was 30 years of age at the time of accident and was doing private job at Sant Nirankari Mandal (Regd) and was getting monthly salary Rs. 30,000/- at the time of accident. She further deposed that deceased was survived by the petitioner no. 2 & 3 only as the petitioner no. 1 has remarried and as such, she is not entitled for any compensation. She further deposed that deceased was the only bread earner Smt. Prem Lata Singh & Ors. Vs. Mohammed Yaseen & Ors. Page 12 of 31 MACP No. 362/19; FIR No. 131/19; PS. Adarsh Nagar DOD:04.04.2024 in their family. She further deposed that petitioner no. 2 & 3 were financially dependent upon the income of deceased at the time of accident. She has relied upon the following documents:-
Serial Description of documents Remarks
No.
1. Copies of Aadhaar Cards of Ex. PW1/1 to Ex.
petitioners no. 1 to 3 and PW1/4
deceased
2. Original certificate issued by Ex. PW1/5
Gram Pradhan regarding
confirmation of second/re-
marriage of widow of
deceased
3. Photographs of second/re- Ex. PW1/6(colly)
marriage of widow of dece
4. Copy of RC, DL of Ex. PW1/7 to Ex.
respondent no. 1 and PW1/9
insurance policy of offending
vehicle
5. Copy of FIR No. 131/19, PS. Ex. PW1/10
Adarsh Nagar
6. Copy of MLC and PM report Ex. PW1/11 &
of deceased Ex. PW1/12
7. Copy of mechanical Ex. PW1/13
inspection report of offending
vehicle
8. Chargesheet alongwith entire Ex. PW1/14 &
criminal record Ex.
PW1/15(colly)
9. Salary certificate issued by Ex.
Smt. Prem Lata Singh & Ors. Vs. Mohammed Yaseen & Ors. Page 13 of 31
MACP No. 362/19; FIR No. 131/19; PS. Adarsh Nagar DOD:04.04.2024
the employer of deceased PW1/16(colly)
21. During cross-examination of PW1 (mother of deceased) on behalf of respondents, she admitted that she was not an eyewitness to the accident in question. She denied the suggestion that deceased was not doing private job at Sant Nirankari Mandal and drawing salary of Rs. 30,000/- per month. She further denied the suggestion that she had filed a false salary certificate Ex. PW1/6. She deposed that deceased was not an income tax payee. She further deposed that her husband was living at residence and he looks after the agricultural land. She deposed that deceased was doing private job and earning about Rs. 16,000/- to Rs. 17,000/- per month. She deposed that the household expenditure were borne by her husband and deceased. She denied the suggestion that she herself and her husband were not dependent upon the income of their deceased son. She deposed that deceased and his wife were residing at Delhi at the time of accident. She deposed that the photographs of the marriage of widow of deceased with another person were not clicked before her. She further deposed that she got the certificate from Gram Pradhan. She denied the suggestion that she was not present when the marriage certificate was issued by the Gram Pradhan nor she was present when Smt. Premlata got remarried.
22. In order to prove the employment and income of deceased, petitioners have examined PW2 Sh. Kishan Mahto who produced the record in respect of employment of Late Sh. Abhishek Kumar Singh i.e. a copy of Smt. Prem Lata Singh & Ors. Vs. Mohammed Yaseen & Ors. Page 14 of 31 MACP No. 362/19; FIR No. 131/19; PS. Adarsh Nagar DOD:04.04.2024 biodata of Sh. Ashish Kumar Singh available with HR Department Ex. PW2/2, copy of qualification document of Sh. Ashish Kumar Singh Ex. PW2/3(colly), copy of salary certificate of Sh. Ashish Kumar Singh Ex. PW2/4. He testified after seeing the salary certificate of deceased collected by the IO during DAR proceedings that the same have been earlier placed on record by Sant Nirankari Mandal and exhibited the same as Ex. PW2/5. He further deposed that Late Sh. Ashish Kumar Singh had been working as Helper in Homeopathic Dispensary run by Sant Nirankari Mandal since July 2005 and he was a permanent employee. He further deposed that the last drawn salary of Late Sh. Ashish Kumar Singh was Rs. 22,428/- per month which used to be credited in his bank account. He further deposed that the duty hours of late Sh. Ashish Kumar Singh were from 9:00 AM to 6:00 PM. He further deposed that deceased used to get increment in salary once in a year in the month of April. He further deposed that deceased used to get medical bill facility, insurance claim, the school fee of children and for marriage. During his cross-examination on behalf of insurance company, he deposed that he had been working with Sant Nirankari Mandal since 1996. He deposed that at the time of joining of late Sh. Ashish Kumar Singh, his monthly salary was Rs. 1200/-, however, he had not brought the record to show that from Rs. 1200/- per month in the year 2005 the salary of late Sh. Ashish Kumar Singh increased to Rs. 22,428/- in the year 2019. He further deposed that he had not brought any document to show that monthly salary of late Sh. Ashish Kumar Singh used to be credited in his bank Smt. Prem Lata Singh & Ors. Vs. Mohammed Yaseen & Ors. Page 15 of 31 MACP No. 362/19; FIR No. 131/19; PS. Adarsh Nagar DOD:04.04.2024 account. He further deposed that he had not brought the record in respect of the credit of salary in the account of late Sh. Ashish Kumar Singh. He volunteered that the said record was maintained on their computer system and every month with the single transaction salaries of 600 employees were credited to their account. He admitted that he had no knowledge about the record being maintained in respect of salaries of the employees. He further deposed that he had not brought the attendance register maintained in their office about late Sh. Ashish Kumar Singh. He deposed that he had not brought any salary voucher. He further deposed that he had not brought any record bearing signatures of late Sh. Ashish Kumar Singh about receipt of salary. He further deposed that after the death of late Sh. Ashish Kumar Singh, a sum of Rs. 3,00,000/- was paid towards his life insurance maintained by the office after deduction of the premium from his salary as reflected in the salary certificate. He denied the suggestion that late Sh. Ashish Kumar Singh was not working as helper in Sant Nirankari Mandal. He further denied the suggestion that the salary certificate produced by him was false and fabricated as he had not brought the relevant record.
23. After referring to the testimonies of PW1 & PW2 and the documents filed by the said witnesses, Ld. counsel for petitioners vehemently argued that monthly salary of deceased may be taken as Rs. 22,428/- as per the document Ex. PW2/4 at the time of accident in order to calculate the loss of dependency.
Smt. Prem Lata Singh & Ors. Vs. Mohammed Yaseen & Ors. Page 16 of 31MACP No. 362/19; FIR No. 131/19; PS. Adarsh Nagar DOD:04.04.2024
24. On the other hand, Ld. Counsel for the insurance company argued that there is no concrete evidence led by petitioners to establish the monthly income of deceased at the time of accident. Thus, loss of dependency should be calculated on the basis of notional income as per Minimum Wages Act applicable during the relevant period.
25. As per the document Ex. PW2/4, deceased was working with Sant Nirankari Mandal, Delhi on total maintenance allowance @ Rs. 22,428/- per month. It may be noted here that PW2 during his examination in chief admitted that document Ex. PW2/4 have which was earlier placed on record was collected by the IO during DAR proceedings and the same was handed over to the IO by Sant Nirankari Mandal which itself proves the authenticity of the said document. It is quite clear that if the aforesaid document was procured one by the petitioners, it would have been filed by the petitioners during recording of their evidence not at the time of investigation of case. Moreover, it has been specifically stated by PW2 during his examination that deceased had been working with Sant Nirankari Mandal as Helper in Homeopathic Dispensary since July 2005 and he was a permanent employee and his last drawn salary was Rs. 22,428/-. From the documents Ex. PW2/1 , Ex. PW2/2 & Ex. PW2/4, it is apparent that deceased Sh. Ashish Kumar Singh was working as Sewadar with Sant Nirankari Mandal (Regd.), Sant Nirankari Colony, Delhi at the time of accident. As per the document Ex. PW2/4, the deceased had withdrawn last salary of Rs. 22,428/- in the month Smt. Prem Lata Singh & Ors. Vs. Mohammed Yaseen & Ors. Page 17 of 31 MACP No. 362/19; FIR No. 131/19; PS. Adarsh Nagar DOD:04.04.2024 of April 2019. The date of accident in the present case is 05.05.2019. In view of the aforesaid discussion, I deem it fit to accept the monthly salary of deceased as Rs. 22,428/- per month as on the date of accident. I am fortified in my view with the decision of Hon'ble Supreme Court passed in case titled "Mohammed Siddique & Anr. Vs. National Insurance Co. Ltd. & Ors.", Civil Appeal No. 79 of 2020, decided on 08.01.2020. The relevant paragraphs from S.No. 16 to 18 of the aforesaid decision are reproduced as under:-
xxxxx "16. But unfortunately the High Court thought that the employer should have produced salaryvouchers and other records including income tax returns, to substantiate the nature of the employment and the monthly income. On the ground that in the absence of other records, the salary certificate and the oral testimony of the employer could not be accepted, the High Court proceeded to take the minimum wages paid for the unskilled workers at the relevant point of time as the benchmark.
17. But we do not think that the approach adopted by the High court could be approved. To a specific question in cross−examination, calling upon PW−2 to produce the salary vouchers, he seems to have replied that his business establishment had been wound up and that the records are not available.
This cannot be a ground for the High Court to hold that the testimony of PW−2 is unacceptable.
18. The High Court ought to have appreciated that the Court of first instance was in a better position to appreciate the oral testimony. So long as the oral Smt. Prem Lata Singh & Ors. Vs. Mohammed Yaseen & Ors. Page 18 of 31 MACP No. 362/19; FIR No. 131/19; PS. Adarsh Nagar DOD:04.04.2024 testimony of PW−2 remained unshaken and hence believed by the Court of first instance, the High Court ought not to have rejected his evidence. After all, there was no allegation that PW−2 was set up for the purposes of this case. There were also no contradictions in his testimony. As against the testimony of an employer supported by a certificate issued by him, the High Court ought not to have chosen a theoretical presumption relating to the minimum wages fixed for unskilled employment.
Therefore, the interference made by the High Court with the findings of the Tribunal with regard to the monthly income of the deceased, was uncalled for.
Xxxxx
26. In order to consider the age of deceased, the relevant document is his High School Certificate (which is part of Ex. PW2/3 colly), wherein his recorded date of birth is 08.09.1988. Date of accident being 05.05.2019, the age of deceased was more than 30 years but less than 31 years as on the date of accident. Hence, the multiplier of 17 would be applicable in view of the case "Sarla Verma Vs. Delhi Transport Corporation", 2009 ACJ 1298 SC which has been reaffirmed by the pronouncement made by Constitutional Bench of Apex Court in the case titled as "National Insurance Company Ltd. Vs. Pranay Sethi & Ors.", passed in SLP(Civil) No. 25590/14 decided on 31.10.17.
27. For the purpose of future prospects, Hon'ble Supreme Court of India in Pranay Sethi's case (supra) has been pleased to discuss the applicable aspects of law pertaining to "additions" in the minimum wages on Smt. Prem Lata Singh & Ors. Vs. Mohammed Yaseen & Ors. Page 19 of 31 MACP No. 362/19; FIR No. 131/19; PS. Adarsh Nagar DOD:04.04.2024 account of "inflation" for computation of compensation. It has been held by Hon'ble Apex Court in the afore-cited case that aspect of future prospects shall be a relevant consideration in computation of just and proper compensation even in cases where the deceased was self- employed. The guiding parameters laid down in Pranay Sethi's case (supra) have been reiterated by Hon'ble High Court of Delhi in appeal bearing MAC APP No. 798/2011 titled as Bajaj Allianz General Insurance Company Ltd. V. Pooja & Ors., decided on 02.11.17, allowing the addition of 40% on account of future prospects in such cases where the deceased was below the age of 40 years, if self-employed category. The addition on account of future prospects shall be 40% of the income of deceased.
28. In the peculiar facts of the case, the widow of deceased remarried after lapse of more than 1 ½ years from the death of the deceased. As regards the dependency rights of a widow re-marrying are concerned, the settled position of law is that after the death of her husband, if the widow re-marries, there is no hindrance for the Tribunal to give the dependent widow, as on the date of accident, such share in the Award, which is her due by treating her as one of the entitled claimants. It is well-settled that the fact of re-marriage is not considered as a ground to deny, refuse or even reduce the Award of compensation. Our own Hon'ble High Court of Delhi in the case of "Dincy Devassy Vs. United India Insurance Co. & Ors.", MAC. APP. 26/19, decided on 12.12.2019, has been pleased to lay down the Smt. Prem Lata Singh & Ors. Vs. Mohammed Yaseen & Ors. Page 20 of 31 MACP No. 362/19; FIR No. 131/19; PS. Adarsh Nagar DOD:04.04.2024 guiding principles in case of remarriage of a dependent widow for the purpose of a MACT case, wherein it has been held as under: -
"Para-3 The calculation of loss of dependency was on the basis of her dependency on her deceased husband; her loss is equal to the loss of dependency suffered by her parents-in-law. Her decision to re-marry was entirely her personal choice,over which nobody can have any say. Her right to claim compensation crystallized upon her husband‟s life being tragically snatched away in the motor accident. Therefore, simply because she has now re- married, her claim does not abate or lessen. Who can judge whether the second marriage was not a compromise because of her personal circumstances and whether it would have the same value emotionally and psychologically as the first marriage. Her entitlement fructified when the dependency was calculated. Therefore, as an aggrieved widow, she would be entitled to a share of compensation apropos 'loss of dependency' of equal amount of her parents-in-law, who had lost their son...."
29. The present case is well guided by the pronouncement of Hon'ble High Court of Delhi in Dincy Devassy case (Supra). There is no bar under M.V Act against a widow from claiming compensation on account of her re-marriage. After the death of her husband, the widow continues to represent his estate, irrespective of her re-marriage, because she inherits part of the estate of her deceased husband. Motor Vehicle Act is a socio-welfare Smt. Prem Lata Singh & Ors. Vs. Mohammed Yaseen & Ors. Page 21 of 31 MACP No. 362/19; FIR No. 131/19; PS. Adarsh Nagar DOD:04.04.2024 legislation and therefore, it is to be interpreted so as to fulfill its objective with which it was enacted. In the present case, mother of the deceased is the sole testifying witness for the purposes of proving the dependency upon the deceased for herself as well as other dependent claimant, who is father of the deceased. It is worth mentioning that although PW1/mother of the deceased claimed that since the petitioner no. 1 has remarried after the death of deceased, she shall not be entitled for compensation in the present case. The collective facts truly demonstrates the circumstances in which the widow of the deceased may have decided to remarry and the said fact shall not preclude her from inheriting the estate of her first husband, as she would have been entitled on the date of accident.
30. The monthly income of the deceased has been computed herein- above in para no. 25 of this judgment. As discussed, the deceased had three dependents i.e. parents and widow of deceased, whom he left behind. Accordingly, as per law, one third is to be deducted towards personal and living expenses of the deceased from his income as held in the case of Sarla Verma mentioned supra. Thus, the total of loss of dependency would come out to Rs. 42,70,291.20p (Rs. 22,428/- X 2/3 X 140/100 X 12 X 17). Hence, a sum of Rs. 42,70,000/- (rounded off) is awarded under this head in favour of the petitioners.
LOSS OF LOVE & AFFECTION Smt. Prem Lata Singh & Ors. Vs. Mohammed Yaseen & Ors. Page 22 of 31 MACP No. 362/19; FIR No. 131/19; PS. Adarsh Nagar DOD:04.04.2024
31. Now considering the prayer of petitioners for grant of compensation on account of "Loss of Love & Affection" the binding legal position has been laid down by the celebrated judgment of Pranay Sethi's case (supra) and recent judgment titled New India Assurance Company Limited V. Somwati & Ors., Civil Appeal no. 3093 of 2020 dated 07.09.2020 of Supreme Court of India wherein it has been held that the petitioners are not entitled to be compensated under this head. Further, the Hon'ble High Court of Delhi in appeal titled as Pooja's case (supra), has been pleased to observe in para 18 of the judgment that the constitution bench decision in Pranay Sethi's case (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
32. In view of the judgment of Hon'ble Supreme Court of India in case titled as, Pranay Sethi case (supra), the Tribunal considers that both the petitioners i.e. parents of deceased are entitled for payment of Rs. 40,000/- each towards "loss of consortium". By way of pronouncement of Pranay Sethi case (supra), the Hon'ble Supreme Court of India has been pleased to hold that there shall be an increase of 10% on account of 'inflation' after a period of three years. Applying, the afore-cited binding law the The Hon'ble Smt. Prem Lata Singh & Ors. Vs. Mohammed Yaseen & Ors. Page 23 of 31 MACP No. 362/19; FIR No. 131/19; PS. Adarsh Nagar DOD:04.04.2024 High Court of Delhi in National Insurance Co. Ltd. Ltd. V. LR's of Sukhbir Singh, MAC. APP. 518/2013 vide judgment pronounced on 13.07.2023 has been pleased to direct the entitlement of dependents to 10% increase under this head, though, the date of accident was of 2011 and the date of impugned award was of 2013. Accordingly, all the petitioners are entitled to a sum of Rs. 44,000/- (40,000+10%) each towards "loss of consortium".
LOSS OF ESTATE & FUNERAL EXPENSES
33. 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 Pranay Sethi (supra) which has been re-enforced in LR's of Sukhbir Singh (supra), the Tribunal considers that all the petitioners are also entitled for payment of Rs. 16,500/- (15,000+10%) on account of "loss of estate" and for equal payment of Rs. 16,500/- (15,000+10%) towards "funeral expenses".
The total compensation is assessed as under:-
1. Loss of dependency Rs. 42,70,000/-
2. Loss of Consortium Rs. 1,32,000/-
3. Loss of Estate & Funeral Rs. 33,000/-
Expenses Total Rs. 44,35,000/-
Smt. Prem Lata Singh & Ors. Vs. Mohammed Yaseen & Ors. Page 24 of 31MACP No. 362/19; FIR No. 131/19; PS. Adarsh Nagar DOD:04.04.2024
34. Now, the question which arises for determination is as to which of the respondents is liable to pay the compensation amount. Respondent no. 3/insurance company did not adduce any evidence since it had no statutory defence. However, counsel for insurance company submits that there was contributory negligence on the part of deceased as he was crossing the road, where there was no zebra crossing. There is no substance in the said argument for the simple reason that no such plea is raised by insurance company in its Written Statement. Rather, the insurance company had given legal offer in the present case without any deduction on account of contributory negligence on the part of deceased.
35. Counsel for petitioners repelled the aforesaid contention on the ground that neither there was any contributory negligence on the part of deceased nor any evidence has been led by insurance company in this regard.
36. As already noted above, the respondent no. 3/insurance company did not adduce any evidence in this matter. Rather, the insurance company had given legal offer in the present case without any deduction on account of contributory negligence on the part of deceased. The onus to prove this plea was upon insurance company which was required to prove the same by leading cogent evidence on this issue. However, no evidence whatsoever has been led on behalf of insurance company despite grant of opportunity.
Smt. Prem Lata Singh & Ors. Vs. Mohammed Yaseen & Ors. Page 25 of 31MACP No. 362/19; FIR No. 131/19; PS. Adarsh Nagar DOD:04.04.2024 Moreover, it is duly established from the testimony of PW3 that the accident occurred entirely due to rash and negligent driving of offending vehicle by its driver/R1. The contributory negligence on the part of deceased, cannot be inferred merely from the fact that he was crossing the road or that there was no zebra crossing at the particular place wherefrom he was crossing the road at the time of accident. In order to succeed to establish the plea of contributory negligence, there has to be some cogent and definite evidence being brought on record from the side of respondent, from which it can be proved or shown that there was any act on the part of deceased, which contributed in the occurrence of road accident. No such evidence whatsoever is available on record in the present case. Thus, there is no question of any contributory negligence on the part of deceased Ashish Kumar Singh. Hence, the contention raised on behalf of insurance company in this regard, is hereby rejected.
37. It is admitted case of insurance company that there is no violation or breach of any of the terms or conditions of insurance policy of the offending bus, for the relevant period. Keeping in view the existence of valid insurance policy and in the absence of any statutory defences available to the insurance company, respondent no. 3/insurance company concerned is legally liable to pay the compensation amount. Issue no. 2 is decided accordingly.
ISSUE NO. 3 RELIEF Smt. Prem Lata Singh & Ors. Vs. Mohammed Yaseen & Ors. Page 26 of 31 MACP No. 362/19; FIR No. 131/19; PS. Adarsh Nagar DOD:04.04.2024
38. In view of my finding on issues no. 1 & 2, I award a sum of Rs. 44,35,000/- (including interim award amount, if any) alongwith interest @ 7.5% per annum w.e.f date of filing the claim petition i.e. 01.07.2019 till the date of its realization, in favour of Lrs of deceased/petitioners and against the respondents. (Reliance placed on United India Insurance Co. Ltd. V. Baby Raksha & Ors, MAC APP. No. 36/2023 passed by Hon'ble Delhi High Court on 21.04.2023).
APPORTIONMENT
39. It is pertinent to mention here that statements of petitioners in terms of clause 29 of MCTAP were recorded on 18.05.2023, 17.07.2023 & 11.08.2023. Having regard to the facts and circumstances of the case and in view of the above discussed judgment on the point of re-marriage of widow of deceased, it is hereby ordered that out of total compensation amount, the petitioner no. 1 Smt. Prem Lata Singh shall be entitled to share amount of Rs. 15,52,250/- (Rupees Fifteen Lakhs Fifty Two Thousand Two Hundred and Fifty Only) alongwith proportionate interest, the petitioner no. 2 namely Smt. Vidyawati Devi shall be entitled to share amount of Rs. 15,52,250/- (Rupees Fifteen Lakhs Fifty Two Thousand Two Hundred and Fifty Only) alongwith proportionate interest and petitioner no. 3 Sh. Ghanshyam Singh shall be entitled to remaining amount Rs. 13,30,500/- (Rupees Thirteen Lakhs Thirty Thousand and Five Hundred Only) alongwith Smt. Prem Lata Singh & Ors. Vs. Mohammed Yaseen & Ors. Page 27 of 31 MACP No. 362/19; FIR No. 131/19; PS. Adarsh Nagar DOD:04.04.2024 proportionate interest.
40. Out of share amount of petitioner no. 1, a sum of Rs. 5,52,250/- (Rupees Five Lakhs Fifty Two Thousand Two Hundred and Fifty Only), shall be immediately released to her through her bank account no. 57320100004187, Bank of Baroda, Betia Hata, UP, having IFSC Code BARB0BETIAH and remaining amount alongwith interest amount are directed to be kept in the form of FDRs in the multiples of Rs. 30,000/- each for one month, two months, three months and so on and so forth having cumulative interest.
41. Out of share amount of petitioner no.2, a sum of Rs. 7,52,250/- (Rupees Seven Lakhs Fifty Two Thousand Two Hundred and Fifty Only)(she being senior citizen aged about 68 years), shall be immediately released to her through her MACT bank account only and remaining amount alongwith interest amount are directed to be kept in the form of FDRs in the multiples of Rs. 35,000/- each for one month, two months, three months and so on and so forth having cumulative interest.
42. Out of share amount of petitioner no.3, a sum of Rs. 7,00,000/- (Rupees Seven Lakhs Only)(he being senior citizen aged about 71 years), shall be immediately released to him through his MACT Bank account only and remaining amount alongwith interest amount are directed to be kept in the form of FDRs in the multiples of Rs. 25,000/- each for one month, two Smt. Prem Lata Singh & Ors. Vs. Mohammed Yaseen & Ors. Page 28 of 31 MACP No. 362/19; FIR No. 131/19; PS. Adarsh Nagar DOD:04.04.2024 months, three months and so on and so forth having cumulative interest.
43. All the FDRs to be prepared as per aforesaid directions, shall be subject to the following conditions:-
(a) The Bank shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the claimant(s) i.e. the savings bank account(s) of the claimant(s) shall be an individual savings bank 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).
(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 amounts of the FDR(s) be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant(s) near the place of their residence.
(e) No loan, advance, withdrawal or pre-mature 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 Smt. Prem Lata Singh & Ors. Vs. Mohammed Yaseen & Ors. Page 29 of 31 MACP No. 362/19; FIR No. 131/19; PS. Adarsh Nagar DOD:04.04.2024 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 alongwith the duly signed and stamped by the bank official on the passbook(s) of the claimant(s) is sufficient compliance of clause(g) above.
(i) The petitioner is directed to open a Motor Accident Claims Annuity (Term) Deposit Account (MACAD) in terms of order dated 07.12.2018 of Hon'ble Justice J.R. Midha in case titled as Rajesh Tyagi and Others Vs. Jaibir Singh and Others F.A.O No. 842/03 as per clause 31 of MCTAP and form VIII titled as Motor Accident Claims Annuity Deposit (MACAD) Scheme as directed in the said order.
(j) Concerned Manager, SBI, Rohini Court branch is further directed to disburse the FD amount in Motor Accident Claims Annuity Deposit (MACAD) Scheme account as directed by Hon'ble Delhi High Court vide order dated 07.12.18, on completing necessary formalities as per rules.
44. Respondent no. 3/IFFCO Tokio General Insurance Co. Ltd., is directed to deposit the award amount with SBI, Rohini Courts branch within 30 days as per above order, failing which insurance company shall be liable to pay interest @ 12% p.a for the period of delay. Concerned Manager, SBI, Rohini Court Branch is directed to transfer the respective share amounts immediately to the MACT bank account of petitioners, on completing necessary formalities as per rules. He be 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 award amount starts earning interest from the Smt. Prem Lata Singh & Ors. Vs. Mohammed Yaseen & Ors. Page 30 of 31 MACP No. 362/19; FIR No. 131/19; PS. Adarsh Nagar DOD:04.04.2024 date of clearance of the cheques. Copy of the award be given dasti to the petitioners and also to counsel for the insurance company for compliance. Copy of this award alongwith one photograph each, specimen signatures, copy of bank passbooks and copy of residence proof of the petitioners, be sent to Nodal Officer of SBI, Rohini Court, Branch, Delhi for information and necessary compliance. Form XV & Form XVII in terms of MCTAP are annexed herewith as Annexure-A. Copy of order be also sent to concerned M.M and DLSA as per clause 31 and 32 of MCTAP.
Digitally signed by RICHA RICHA MANCHANDA
MANCHANDA Date:
Announced in the open 2024.04.04
Court on 04.04.2024 13:22:41 +0300
(RICHA MANCHANDA)
Judge MACT-2 (North)
Rohini Courts, Delhi
Smt. Prem Lata Singh & Ors. Vs. Mohammed Yaseen & Ors. Page 31 of 31