Delhi District Court
Kanhaiya Singh & Ors. vs . Kesh Pal & Ors. on 29 September, 2018
IN THE COURT OF SH. M. K. NAGPAL, PRESIDING
OFFICER : MOTOR ACCIDENT CLAIMS TRIBUNAL
PATIALA HOUSE COURTS, NEW DELHI
IN THE MATTER OF:
KANHAIYA SINGH & ORS. VS. KESH PAL & ORS.
MACP NO. 02/17
Master Kanhaiya Singh
S/o Late Sh. Surendra Singh
Minor petitioner through his grandfather
Sh. Parshuram as guardian and next friend.
R/o Bamdoli Village,
Sector-28, Dwarka, New Delhi.
Permanent Resident of :-
Mandir Mahewa,
Chakarnagar, Etawah,
Uttar Pradesh-206128.
......Petitioner/Claimant
Versus
1. Sh. Kesh Pal (Driver)
S/o Sh. Bhagirath
R/o Faridpur Nitarra,
Gadiya Sikandra Derapur,
Kanpur Dehat-209125.
2. Sh. Sumeet (Owner)
S/o Sh. Raj Kumar,
K-840/19, Sangam Vihar,
Delhi-110062.
3. IFFCO Tokio General Insurance Co. Ltd. (Insurer)
6th Floor, Ansals Imperial Tower,
C-Block, Community Centre,
Naraina Vihar, New Delhi-110028.
.....Respondents
MACP NO. 03/17
1. Master Kanhaiya Singh S/o Late Sh. Surendra Singh MACP Nos. 02/17, 03/17 and 04/17 Page No. 1 of 34 Minor petitioner through his grandfather Sh. Parshuram as guardian and next friend.
2. Smt. Koshalya @ Koushilya W/o Sh. Parshuram
3. Sh. Parshuram S/o Sh. Motee Lal All Residents of :-
R/o Bamdoli Village, Sector-28, Dwarka, New Delhi.
Permanent Residents of :-
Mandir Mahewa, Chakarnagar, Etawah, Uttar Pradesh-206128.
......Petitioners/Claimants Versus
1. Sh. Kesh Pal (Driver) S/o Sh. Bhagirath R/o Faridpur Nitarra, Gadiya Sikandra Derapur, Kanpur Dehat-209125.
2. Sh. Sumeet (Owner) S/o Sh. Raj Kumar, K-840/19, Sangam Vihar, Delhi-110062.
3. IFFCO Tokio General Insurance Co. Ltd. (Insurer) 6th Floor, Ansals Imperial Tower, C-Block, Community Centre, Naraina Vihar, New Delhi-110028.
.....Respondents.
MACP NO. 04/17Master Kanhaiya Singh S/o Late Sh. Surendra Singh Minor petitioner through his grandfather Sh. Parshuram as guardian and next friend.
MACP Nos. 02/17, 03/17 and 04/17 Page No. 2 of 34R/o Bamdoli Village, Sector-28, Dwarka, New Delhi.
Permanent Resident of :-
Mandir Mahewa, Chakarnagar, Etawah, Uttar Pradesh-206128.
......Petitioner/Claimant.
Versus
1. Sh. Kesh Pal (Driver) S/o Sh. Bhagirath R/o Faridpur Nitarra, Gadiya Sikandra Derapur, Kanpur Dehat-209125.
2. Sh. Sumeet (Owner) S/o Sh. Raj Kumar, K-840/19, Sangam Vihar, Delhi-110062.
3. IFFCO Tokio General Insurance Co. Ltd. (Insurer) 6th Floor, Ansals Imperial Tower, C-Block, Community Centre, Naraina Vihar, New Delhi-110028.
.....Respondents.
Date of filing of claim petitions : 03.01.2017
Date of framing of issues : 01.05.2017
Date of concluding arguments : 27.09.2018
Date of decision : 29.09.2018
AWARD/JUDGMENT
1. Since, these three claim petitions MACP No. 02/17, 03/17 and 04/17 stand already consolidated with each other and also arise out of the same accident, these are being taken up together for disposal.
2. These claim petitions are in respect of accidental deaths of one Smt. Rajni Devi, her husband Sh. Surender Singh and their minor son Master Gopal respectively. Master Kanhaiya Singh is the MACP Nos. 02/17, 03/17 and 04/17 Page No. 3 of 34 sole claimant in MACP numbers 02/17 and 04/17 being son of the deceased Rajni Devi and elder brother of Master Gopal respectively, but in the MACP no. 03/17 his grand parents Smt. Kaushalya @ Kaushilya and Sh. Parshuram are also made co-petitioners with him, being parents of the deceased Surender Singh.
3. Facts of the case, briefly stated, are that on the above day of accident, all the above three deceased were going from Delhi to Oriya, UP via Yamuna Expressway, in bus no. UP 86T 0750 and when their bus had reached at a distance of around 83 kms on the said express way, it stopped due to a break down at about 2.45 am. The driver and conductor of the bus got down to locate and repair the fault and some passengers of the vehicle also got down, on being asked by the conductor and to help in moving the bus by giving a push. At this point of time, the offending truck/canter bearing no. DL 1CP 6189 had suddenly come from their back side at a fast speed and is stated to have hit the bus on its back with great force and as a result of this accident, six persons are stated to have died and eight other persons suffered injuries. The deceased and the injured included some persons who got down from the bus and also some others who were sitting in the bus. The three deceased of this case were amongst the persons who got down from the bus. It is alleged that the above accident took place due to rash and negligent driving of the said bus by R-1 and the bus at the relevant time of accident was owned by R-2 and insured with R-3.
4. These claim petitions were filed before this tribunal on 03.01.2017 and on being issued notices, R-1 & R-2 have both filed a joint reply thereto and a reply to the petitions has also been filed on behalf of R-3.
5. R-1 & R-2 in their reply have submitted that R-1 was holding a valid driving license and their vehicle was also duly insured MACP Nos. 02/17, 03/17 and 04/17 Page No. 4 of 34 with R-3 at the relevant time of accident and hence, the liability to pay compensation, if any, to the petitioners is that of R-3 only. They have also claimed these cases to be false and they having been falsely implicated in these cases and it is their case that the accident took place as the bus was standing in middle of the road without taking adequate precautions.
6. R-3/Insurance Company in its reply has not denied the existence of a valid insurance policy of the said vehicle in the name of R-2 at the time of accident, but they have taken a plea of contributory negligence on the part of driver of the said bus while submitting that the bus was standing on the road without giving proper indicators and without taking adequate precautions. It has further been claimed by it that R-1 & R-2 have been falsely implicated in these cases, while also denying the other allegations of the petitioners on merits.
7. All these claim petitions were consolidated for the purposes of trial and disposal vide order dated 01.05.2017 and MACP No. 02/17 was directed to be the lead case for recording of evidence etc. On the same day, the following consolidated issues were also framed by this tribunal for disposal of these petitions :-
1. Whether Smt. Rajni Devi, Sh. Surender Singh and Master Gopal sustained fatal injuries in the accident which occurred on 13.08.2016 at about 02.45 AM on Yamuna Expressway 83 km from Delhi to Uria, Bahad Village, Ohawa, Uttar Pradesh caused by rash and negligent driving of vehicle No. DL-1LP-6189 being driven by respondent no. 1, owned by respondent no. 2 and insured with respondent no. 3 ? OPP.
2. Whether the petitioners are entitled for compensation ? If so, to what amount and from whom ?
3. Relief.
8. On the same day, an interim award for a sum of Rs.
MACP Nos. 02/17, 03/17 and 04/17 Page No. 5 of 3450,000/- in each petition was also passed in favour of the petitioner
(s) under Section 140 of the Motor Vehicle Act and the entire amount of interim award in MACP No. 2/17 & 4/17 was directed to be kept in FDR till the sole minor claimant attains majority and even in third MACP No. 3/17, his share of Rs. 30,000/- out of the interim award amount was directed to be kept in FDR till attainment of majority by him, though the shares of Rs. 10,000/- each of P-2 & P-3 of the said petition were directed to be released.
9. I have heard the arguments advanced by Sh. Atul Rathi, Ld. Counsel for the petitioners and Sh. Sanjay Rawat, Ld. Counsel for R-3/Insurance Company. I have also carefully perused the entire material available on record. However, Ld. Counsel for R-1 & R-2 has not come forward subsequently to address any arguments. My issue-wise findings are as under:-
ISSUE NO. 1It 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.
In case Bimla Devi and others Vs. Himachal Road Transport Corporation and others (2009) 13 SC 530, it has been observed by the Hon'ble Supreme Court that in a road accident case, the strict principles of proof as in a criminal case are not attracted. Relevant portion of the said judgment is reproduced as under:-MACP Nos. 02/17, 03/17 and 04/17 Page No. 6 of 34
"15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. For the said purpose, the High Court should have taken into consideration the respective stories set forth by both the parties."
10. These observations were also quoted with approval in the subsequent judgment of the Hon'ble Supreme Court in case Parmeshwari Vs. Amir Chand and others 2011 (1) SCR 1096 (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.
11. The petitioners in support of their cases have examined on record total four witnesses. PW1 Sh. Parshuram is one of the petitioners of MACP No. 03/17 and father of the deceased Surender Singh, father-in-law of deceased Rajni and grandfather of the deceased Master Gopal, as already stated above. PW2 Sh. Vicky Kalra is the proprietor of M/s Kalra Tempo Transport Services, Shahdara, Delhi, who was employer of the deceased Surender Singh and PW3 Sh. Devender Singh is from the office of Jain Snacks, Dariba Kalan, Chandni Chowk, Delhi, where the deceased Rajni Devi is alleged to have been employed at the time of accident. However, none of the above three witnesses is an eye witness of the accident and it is the testimony of PW4 only, who is alleged to be an eye witness of the accident, which is relevant for the disposal of the present issue.
12. It is observed that PW4 Sh. Sunil Singh in his statement made on record has duly supported the case of the petitioners on this issue. He has claimed himself to be one of the passengers of MACP Nos. 02/17, 03/17 and 04/17 Page No. 7 of 34 the above bus and has almost deposed on record on the above lines of the story being put forward by the petitioners. He has specifically stated on record that on the above date and at around the above time of accident, their bus went out of order and the bus driver stopped it in the fourth lane near the kucha side of the road and the parking light of the bus was on at that time. He has also stated specifically that the driver and conductor got down from the bus in order to ascertain fault or reasons for the breakdown and the conductor and driver had also called some of the passengers from inside the bus to help them in pushing and starting the bus. He has further stated specifically that in the meanwhile, the offending canter came from behind at a fast speed and hit some of the passengers, including the above three deceased, and as a result of this accident, the bus was pushed forward upto a distance of 20 to 25 feet. He has also stated specifically that six people died on the spot and eight- nine other persons suffered grievous injuries. He claims that he made a call to the police at 100 number and the above criminal case regarding the accident was registered on the basis of his statement. He further stated in clear and specific terms that the said accident was caused due to negligence of the driver of canter.
13. Though, this witness is found to have been cross examined at length by the Ld. Counsels for the respondents, but it is observed that nothing material could be extracted out from him during his such cross-examination to challenge or controvert his testimony and the claim of his being an eye witness of the said accident. During his cross-examination, he has clarified that he had seen the offending canter coming just before the said accident, when it was 5ft away from the bus and at that time, he himself was standing on side of the road. He has also stated that the deceased Rajni and Gopal were behind the bus at the time when they were hit MACP Nos. 02/17, 03/17 and 04/17 Page No. 8 of 34 by the offending canter and they were coming back after answering the call of nature. However, he was nowhere suggested that the bus was standing in middle of the road at the time of accident or that the indicators thereof were not on or adequate precautions were not taken by the driver and conductor thereof and the same resulted into accident and rather, even during his cross-examination, he is found to have specifically stated that the parking light of the bus was on when it was hit by the canter. He has also specifically denied the suggestion given to him that the accident took place as the driver of canter could not see the indicators because the view of the bus was blocked by the passengers who were standing behind the bus on road. Though, this witness has not been able to say if the driver or conductor of the bus were also responsible equally for the said accident and further though, he has also not been able to furnish any documentary proof in the form of ticket etc. for his travelling in the said bus, but the same do not in any way affect the credibility of his testimony as his testimony is found to be free from any material discrepancies or contradictions etc. His presence at the spot cannot be doubted as he is the person on whose statement the FIR of the above criminal case about this accident was registered by the local police shortly after the accident. He is even not related to the deceased persons, as has also been clarified by him during his cross-examination, though he was related to one other deceased Mintu of the said accident. Even otherwise, his testimony is found to be duly corroborated by the documents filed on record in the form of certified copies of various documents of the said case like FIR, challan, site plan, mechanical inspection reports of the two vehicles, postmortem and panchnama reports of the three deceased as Ex. PW1/11 to Ex. PW1/19.
14. Moreover, R-1 was the best witness who could have MACP Nos. 02/17, 03/17 and 04/17 Page No. 9 of 34 challenged or controverted the testimony of this witness on the above aspects, but for the reasons best known to him, he has not done so and has not stepped into the witness box. For his failure to do so, an adverse inference can also be drawn against the respondents on this aspect, in view of the law laid down in the case of Cholamandalam M.S. General Insurance Company Ltd. Vs. Kamlesh, reported in 2009 (3) AD (Delhi) 310.
15. Hence, in view of the above factual and legal discussion, it is held that the oral evidence led on record by the petitioners is duly substantiated by the documentary evidence and it stands proved that the above accident resulting into death of the deceased persons was caused due to rash and negligent driving of the above offending canter bearing registration no. DL-1LP-6189 by R-1, which was owned by R-2 and insured with R-3. This issue is accordingly decided in favour of the petitioners and against the respondents.
16. ISSUE NO.2 "Whether the petitioners are entitled for compensation? If so, to what amount and from whom?"
As the rashness and negligence on the part of driver of the above offending vehicle/R-1 has been satisfactorily proved, the petitioners have become entitled to be compensated for the death in the above accident, but the computation of compensation and liability to pay the same are still required to be decided. The compensation to which the petitioners are entitled shall be as under
the following heads:-
17. COMPENSATION IN MACP NO. 02/2017
i) Loss of dependency As per the depositions made by PW1 Sh. Parshuram @ MACP Nos. 02/17, 03/17 and 04/17 Page No. 10 of 34 Parshu Ram in his affidavit Ex.PW1/A, the deceased Smt. Rajni Devi of this case was aged around 29 years at the time of accident and he has also tendered on record, inter-alia, a copy of her election identity card as Ex.PW1/6, in which the year of her birth is found to be recorded as 1987. Since the accident of this case took place on 13.08.2016, the age of deceased at the time of accident even as per this document also comes between 29-30 years and therefore, in view of the law laid down by the Hon'ble Supreme Court in case of Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr., (2009) 6 SCC 121, which has also been upheld by the Constitutional Bench of the Hon'ble Supreme Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi & Ors. SLP (Civil) No. 25590 of 2014, decided on 31.10.2017, the multiplier of '17' is applicable in this case for calculating the loss of dependency caused to the petitioner in respect of death of the deceased Smt. Rajni Devi.
In his above affidavit PW1 Parshuram has claimed that the deceased Smt. Rajni Devi was working with Jain Snacks, 1472 Fountain Chowk, Chandni Chowk, Delhi-6, as a cook and getting a salary of Rs.11,500/- per month. He has also tendered on record one certificate issued by employer of the deceased as PW1/7 and has further examined on record one witness namely Sh. Devender Singh as PW3 from the office of her employer for proving the said certificate. This witness has identified the signatures of one Amit Jain on the above certificate.
However, the above oral and documentary evidence led on record by the petitioner is not found to be satisfactory to prove the factum of employment of the deceased Rajni Devi in Delhi or her earnings being Rs.11,500/- from the said job. Admittedly, no other record in the form of any salary or wages payment register etc. in respect of the deceased has been produced before this tribunal and MACP Nos. 02/17, 03/17 and 04/17 Page No. 11 of 34 the documentary evidence led on record rather suggests that the deceased was not residing in Delhi and was residing in their native village itself in Etawha, U.P. as in almost all the documents like copy of their ration card Ex.PW1/8, her election identity card Ex.PW1/6 as well as certified copies of documents constituting record of the above criminal case Ex.PW1/11 to Ex.PW1/19, the deceased is shown to be a resident of Etawha, U.P. Again as per PW1, she was working as a cook, but as per PW3 and the above certificate Ex.PW1/7, she was working as a helper only. There is also no document on record to show her cooking skills or even her residence in Delhi at the time of accident. Hence, her salary is to be taken only as per the minimum wages prevailing in the State of U.P. at the time of accident and in view of the judgment dated 18.07.2018 of the Hon'ble Delhi High Court in the case of TATA AIG General Insurance Co. Ltd. Vs. Priyanka & Ors.; Dharambir Singh & Ors., 2018 LawSuit (Del) 3635 being relied upon by Ld. Counsel for the petitioners, the minimum wages of skilled workers are to be applied, which at the relevant time of accident were Rs.8,757.85 per month (Rs.7,085/- basic wages + Rs. 1,672.85 as variable dearness allowance).
Since the deceased was a married lady and mother of the petitioner/claimant, 1/3rd of earnings of the deceased shall be deducted towards her personal and living expenses. Further, in view of the law laid down in the case of Pranay Sethi & Ors. (Supra), even those who are "self-employed" or working on "fixed salary" are entitled to future prospects and keeping in view the age of the deceased, the petitioner is also held entitled to the addition of 40% of the above amount of her salary towards future prospects.
Thus, the loss of dependency qua the deceased Smt. Rajni Devi in MACP No.02/17 comes to Rs.16,67,494.64 MACP Nos. 02/17, 03/17 and 04/17 Page No. 12 of 34 (Rs.8,757.85 X 2/3 X 140/100 X 12 X 17) and the said amount is being awarded to the petitioners under this head.
(ii) COMPENSATION UNDER NON-PECUNIARY HEADS The compensation to be granted in case of a death arising from a road accident under the non-pecuniary heads of loss of estate, loss of consortium, funeral expenses etc. came for active consideration before the Hon'ble Supreme Court in the above Constitution Bench judgment in the case of Pranay Sethi (Supra). Since the petitioner is minor son of the deceased, in terms of the propositions laid down by the Hon'ble Supreme Court in the said case, the petitioner is not entitled to any compensation towards loss of consortium and is held entitled only to amounts of Rs.15,000/- each under the heads of loss of estate and funeral expenses. Even no compensation can be awarded to him under any other head like loss of love and affection etc. being claimed by Ld. Counsel for the petitioners, in view of the law laid down in the above judgment and also followed by the Hon'ble Delhi High Court in its various judgments including the judgment dated 02.11.2017 in MACA No.798/2011 titled Bajaj Allianz General Ins. Co. Ltd. Vs. Pooja & Ors. Hence, the petitioner is also awarded a total sum of Rs. 30,000/- under the above two heads.
18. The petitioner in MACP No.02/17 is thus held entitled to the compensation as given in the following summary of computation in the prescribed format:-
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN FORM IV-A
1. Date of accident :
13.08.2016
2. Name of the deceased :
Smt. Rajni Devi
3. Age of the deceased :
Between 29-30 years
4. Occupation of the deceased :
Housewife
5. Income of the deceased :
Minimum wages for skilled workers
6. Name, age and relationship of legal representative of deceased:-
MACP Nos. 02/17, 03/17 and 04/17 Page No. 13 of 34 Srl. No. Name Age Relation
(i) Kanhaiya Singh 10 years Son Computation of Compensation Srl. No. Heads Amount Awarded 7 Income of the deceased (A) Rs.8,757.85 8 Add-Future Prospects (B) Rs.3,503.14 9 Less-Personal expenses of the Rs.4,086.99 deceased (C) 10 Monthly loss of dependency Rs.8,173.99 [(A+B) - C = D] 11 Annual loss of dependency (D x Rs.98,087.91
12) 12 Multiplier (E) 17 13 Total loss of dependency (D x 12 Rs.16,67,494.64 x E = F) 14 Medical Expenses (G) Nil 15 Compensation for loss of love Nil and affection (H) 16 Compensation for loss of Nil consortium (I) 17 Compensation for loss of estate Rs.15,000.00 (J) 18 Compensation towards funeral Rs.15,000.00 expenses (K) 19 TOTAL COMPENSATION Rs.16,97,494.64 (F + G + H + I + J+K =L) 20 RATE OF INTEREST AWARDED 9% pa from date of filing of petition i.e. 03.01.2017 within 30 days and 12% thereafter.
21 Interest amount up to the date of Rs.2,65,367.24 award (M) 22 Total amount including interest (L+M) Rs.19,62,861.88 being rounded off to Rs.19,63,000/-
23 Award amount released Nil 24 Award amount kept in FDRs Entire amount after excluding amount of interim award granted to the petitioner vide MACP Nos. 02/17, 03/17 and 04/17 Page No. 14 of 34 order dated 01.05.2017 and the amount deducted on account of TDS on the interest amount, if any.
25 Mode of disbursement of the award Through bank amount to claimant(s) 26 Next date for compliance of the 03.01.2019 award RELIEF
19. The petitioner in MACP No.02/17 is thus awarded a sum of Rs.19,63,000/- (Rupees Nineteen Thousand Sixty Three Thousand Only) interest @ 9% per annum from the date of filing of the petition, i.e. 03.01.2017, till date and interest at the same rate till notice of deposit is given to grandfather/natural guardian of the petitioner or his counsel. However, it is directed that the amount of interim award granted vide order dated 01.05.2017 and interest for the suspended period, if any, during the course of this inquiry, shall be liable to be excluded from the above amount.
20. RELEASE Since petitioner Kanhiya Singh is minor, the entire awarded amount in this petition, after excluding the amount of interim award granted vide order dated 01.05.2017 and the amount deducted on account of TDS on the interest amount, if any, be kept in an FDR till he attains the age of majority, i.e. 18 years of age. However, the monthly interest accrued on the above FDR be credited in the bank account of his grandfather/natural guardian Sh. Parshuram @ Parshu Ram in his bank account bearing no. 34035515452 being maintained at State Bank of India, Mahewa Branch, IFSC Code SBIN0002572, in order to meet educational and other expenses of the minor petitioner. The amount of FDR on maturity be released in savings bank account of the above petitioner MACP Nos. 02/17, 03/17 and 04/17 Page No. 15 of 34 bearing no. 37687069152 being maintained at State Bank of India, Mahewa Branch, District Etawah, Uttar Pradesh, with IFSC Code SBIN0002572.
The bank shall not permit any joint names to be added in the savings bank account or fixed deposit account of the petitioner/ claimant i.e. the savings bank account of the claimant shall be individual savings bank account and not a joint account. However, the concerned bank shall permit the claimant to withdraw money from his above savings bank account by means of a withdrawal form.
The original fixed deposit shall be retained by the UCO Bank, PHC, New Delhi in safe custody. However, the statement containing FDR number, FDR amount, date of maturity and maturity amounts shall be furnished by bank to the claimant.
The maturity amount of the FDR be credited by ECS in the above mentioned savings bank account of the claimant. No loan, advance or withdrawal or pre-mature discharge be allowed on the fixed deposits without permission of the Court.
Original passbook containing requisite endorsements of the Bank Manager concerned that no cheque books or ATM cards shall be issued to him in the said account of the petitioner of this petition has already been produced before this tribunal and copy of his aadhar card has also been filed. It is directed that the concerned bank shall not issue any cheque books and/or debit cards etc. to the claimant in future also.
21. COMPENSATION IN MACP NO. 03/2017
i) Loss of dependency As per the depositions made by PW1 Sh. Parshuram @ Parshu Ram in his affidavit Ex.PW1/A, the deceased Surendra Singh was aged around 33 years at the time of accident. PW1 has MACP Nos. 02/17, 03/17 and 04/17 Page No. 16 of 34 also filed on record copies of the driving licence, PAN Card and Aadhar Card of this deceased as PW1/3 to Ex.PW1/5 respectively. In these documents, three different dates of birth of deceased are found to have been given as 16.03.1980, 30.07.1983 and 10.04.1975 respectively and as per these documents, his age at the time of accident comes to 36 years and around 5 months, around 33 years and 41 years and around 4 months respectively. In view of the law laid down by the Hon'ble Supreme Court in the cases of Sarla Verma & Ors. (supra) and Pranay Sethi (supra), the multiplier of '16' can be applied in case age of deceased is taken between 31 and 35 years, multiplier '15' in case age of deceased is taken between 36 and 40 years and multiplier '14' in case age of deceased is taken between 41 and 45 years. Further, in view of judgment of the Hon'ble Delhi High Court in the case New India Assurance Co. Ltd. Vs. Harsh Wardhan & Ors., MAC App. No. 521/2008 decided on 20.07.2017, the nearest multiplier is to be made applicable in case the age of a deceased is between 30-31 years, 35-36 years and 40-41 years. Going by this judgment, the multiple of '16' will have to be applied in the present case, in case the age of deceased is to be taken as per the first two documents and multiplier of '14' shall be applicable, in case his age is taken as per the third document, i.e. Aadhar Card. The Aadhar Card is the most authentic document out of these three documents and moreover, it is a document produced by the petitioners themselves and hence, this tribunal has no hesitation in taking the multiplier as per this document and therefore, multiplier of '14' is held applicable in the present case.
In his above affidavit Ex.PW1/A, PW1 has claimed that her son Surendra Singh was working as a professional driver with M/s. Radha Swami Transport Co. and M/s. Kalra Tempo Transport MACP Nos. 02/17, 03/17 and 04/17 Page No. 17 of 34 Services, 1/52, Chand Tara Building, Shahdara, Delhi and was earning Rs.14,000/- per month. He has also tendered on record, inter-alia, one employment certificate Ex.PW1/2 given by above employer M/s.Kalra Tempo Transport Services and further examined on record on Sh.Vicky Kalra, proprietor of M/s.Kalra Tempo Transport Services as PW2. PW2 in his examination-in-chief has deposed that the deceased had worked as a driver with them from 01.03.2016 till 30.06.2016 and he was being paid Rs.14,000/- per month and then he joined the above M/s. Radha Swami Transport Co. PW2 has also filed on record, inter-alia, a copy of one salary payment voucher dated 12.07.2016 as Ex.PW2/2 and copy of one register showing payment of salary and attendance of the drivers employed by him during the months of January, 2016 onwards till July, 2016 as Ex.PW2/3 (colly). The above document Ex.PW2/3 shows the name of the deceased Surendra Singh as one of their drivers during the above three months and also the salary of Rs.14,000/- paid to him.
Though PW2 has been found to have been cross examined at length, but during his cross-examination nothing material could be extracted out from him to controvert or challenge his testimony, which is found to be duly substantiated by the above documents and specially the salary/attendance register, which was being maintained by PW2 in the regular course of his business. PW2 has also denied all the contrary suggestions given to him by Ld. Counsel for R-3. Even though no record regarding subsequent employment of the deceased with M/s. Radha Swami Transport Co. from the month of July, 2016 onwards has been brought in evidence, but it is a fact that the above accident had taken place just after about 2½ months of leaving of the said job of PW2 by the deceased. Hence, even though the documents like driving licence Ex. PW1/3, MACP Nos. 02/17, 03/17 and 04/17 Page No. 18 of 34 PAN Card Ex.PW1/5, Aadhar Card Ex.PW1/4 and certified copies of documents of the above of the criminal case Ex.PW1/11 to Ex.PW/19 show the deceased to be a resident of his native village at Etawah, U.P., but from the oral and other documentary evidence led on record, it can be believed that he was working as driver in Delhi at the time of accident at the above salary and therefore, earnings of the deceased are to be taken as Rs.14,000/-.
Father of the deceased, i.e. P-3 Sh. Parshuram is of 72 years of age and hence, too old to earn his livelihood. Hence, since the deceased has left behind his minor son and parents as his legal heirs and dependents, 1/3rd of earnings of the deceased shall be deducted towards his personal and living expenses. Further, since the deceased was aged between 40-50 years, in view of the law laid down in the case of Pranay Sethi (Supra), the petitioners of this petition are also held entitled to the addition of 25% of the above amount of his earnings towards future prospects as from the evidence led on record, the nature of his employment cannot be treated as permanent and it can be taken as temporary only.
Thus, the loss of dependency qua the deceased Surendra Singh of MACP No. 03/17 comes to Rs.19,60,000/- (rounded off) (Rs.14,000/- X 2/3 X 125/100 X 12 X 14) and the said amount is being awarded to the petitioners under this head.
(ii) COMPENSATION UNDER NON-PECUNIARY HEADS As already discussed above that the compensation to be granted in case of a death arising from a road accident under the non-pecuniary heads of loss of estate, loss of consortium, funeral expenses etc. came for active consideration before the Hon'ble Supreme Court in the above Constitution Bench judgment in the case of Pranay Sethi (Supra). Since the petitioners are parents and MACP Nos. 02/17, 03/17 and 04/17 Page No. 19 of 34 minor son of the deceased, in terms of the propositions laid down by the Hon'ble Supreme Court in the said case, the petitioners are not entitled to any compensation towards loss of consortium and are held entitled only to amounts of Rs.15,000/- each under the heads of loss of estate and funeral expenses. Even no compensation can be awarded to them under any other head like loss of love and affection etc. in view of the law laid down in the above judgment and also followed by the Hon'ble Delhi High Court in its various judgments including the judgment in the case of Bajaj Allianz General Ins. Co. Ltd. Vs. Pooja & Ors. (Supra). Hence, the petitioners are of this petition are also awarded a total sum of Rs. 30,000/- under the above two heads.
22. The petitioners in MACP No.03/17 are thus held entitled to the compensation as given in the following summary of computation in the prescribed format:-
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN FORM IV-A
1. Date of accident : 13.08.2016
2. Name of the deceased : Sh. Surendra Singh
3. Age of the deceased : Between 40-45 years
4. Occupation of the deceased : Driver
5. Income of the deceased : Rs.14,000/-
6. Name, age and relationship of legal representative of deceased:-
Srl. No. Name Age Relation
(i) Master Kanhaiya Singh 10 years Son
(ii) Smt. Koshalya @ Kousilya 62 years Mother
(iii) Sh.Parshuram @ Parshu Ram 72 years Father
Computation of Compensation
Srl. No. Heads Amount Awarded
7. Income of the deceased (A) Rs.14,000.00
8. Add-Future Prospects (B) Rs.3,500.00
9. Less-Personal expenses of the Rs.5,833.33
deceased (C)
MACP Nos. 02/17, 03/17 and 04/17 Page No. 20 of 34
10. Monthly loss of dependency Rs.11,666.66
[(A+B) - C = D]
11 Annual loss of dependency (D x Rs.1,40,000/- (rounded off)
12)
12 Multiplier (E) 14
13 Total loss of dependency (D x 12 Rs.19,60,000/-
x E = F)
14 Medical Expenses (G) Nil
15 Compensation for loss of love Nil
and affection (H)
16 Compensation for loss of Nil
consortium (I)
17 Compensation for loss of estate Rs.15,000.00
(J)
18 Compensation towards funeral Rs.15,000.00
expenses (K)
19 TOTAL COMPENSATION Rs.19,90,000/-
(F + G + H + I + J+K =L)
20 RATE OF INTEREST AWARDED 9% pa from date of filing of
claim petition i.e. 03.01.2017
within 30 days and 12%
thereafter.
21 Interest amount up to the date of Rs.3,11,094.25
award (M)
22 Total amount including interest Rs.23,01,094.25
(L+M) being rounded off to
Rs.23,01,000/-
23 Award amount released P-1= Nil
P-2 = 10% of her share
P-3 = 10% of his share
24 Award amount kept in FDRs P-1= Entire share
P-2= 90% of her share
P-3= 90% of his share
(subject to adjustment of
amount of interim award
granted to the petitioners vide
order dated 01.05.2017 and
the amount deducted on
account of TDS on the
interest amount, if any.)
25 Mode of disbursement of the award Through bank
amount to claimant(s)
MACP Nos. 02/17, 03/17 and 04/17 Page No. 21 of 34
26 Next date for compliance of the 03.01.2019
award
RELIEF
23. The petitioners in MACP No.03/17 are thus awarded a sum of Rs.23,01,000/- (Rupees Twenty Three Lacs and One Thousand Only) interest @ 9% per annum from the date of filing of the petition, i.e. 03.01.2017, till date and interest at the same rate till notice of deposit is given to the petitioners or to their counsel.
However, it is directed that the amount of interim award granted vide order dated 01.05.2017 to the petitioners and interest for the suspended period, if any, during the course of this inquiry, shall be liable to be excluded from the above amount.
24. APPORTIONMENT Out of the entire above amount of compensation in this petition, 60% is being awarded to P-1 and 20% each is being awarded to P-2 and P-3.
25. RELEASE The entire share of P-1, after excluding the amount of interim award granted vide order dated 01.05.2017 and the amount deducted on account of TDS on the interest amount in proportion, if any, be kept in an FDR till he attains the age of 21 years of age. However, the monthly interest accrued on the above FDR be credited in the bank account of his grandfather/natural guardian Sh. Parshuram @ Parshu Ram in his bank account bearing no. 34035515452 being maintained at State Bank of India, Mahewa Branch, IFSC Code SBIN0002572, in order to meet educational and other expenses of the minor petitioner. The amount of FDR on maturity be released in savings bank account of the above petitioner bearing no. 37687069152 being maintained at State Bank of India, MACP Nos. 02/17, 03/17 and 04/17 Page No. 22 of 34 Mahewa Branch, District Etawah, Uttar Pradesh, with IFSC Code SBIN0002572.
Out of the share of P-2 & P-3, 90% amount of their share, after excluding the amount of interim award granted vide order dated 01.05.2017 and the amount deducted on account of TDS on the interest amount in proportion, if any, is directed to be kept in 3 annual FDRs of equal amount for a period of 1 to 3 years in succession. The amounts of FDR on maturity be released in savings bank accounts of P-2 & P-3 bearing no. 36103873246 and no. 34035515452 respectively, both being maintained at State Bank of India, Mahewa Branch, IFSC Code SBIN0002572. The remaining 10% amount be released in their above accounts.
The bank (s) shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the petitioners/claimants i.e. the savings bank account(s) of the claimant(s) shall be individual savings bank account(s) and not a joint account(s). However, the concerned bank (s) shall permit the claimant (s) to withdraw money from their above savings bank accounts by means of a withdrawal form.
The original fixed deposits shall be retained by the UCO Bank, PHC, New Delhi in safe custody. However, the statement containing FDR numbers, FDR amounts, dates of maturity and maturity amounts shall be furnished by bank to the claimant(s).
The maturity amounts of the FDR(s) be credited by Electronic Clearing System (ECS) in the above mentioned savings bank account of the claimant (s).
No loan, advance or withdrawal or pre-mature discharge be allowed on the fixed deposits without permission of the Court.
Original passbooks containing requisite endorsements of the Bank Manager concerned that no cheque books or ATM cards MACP Nos. 02/17, 03/17 and 04/17 Page No. 23 of 34 shall be issued to the claimants in their above said accounts have already been produced before this tribunal and copy of their aadhar cards and PAN Cards of P-2 & P-3 have also been filed. It is directed that the concerned banks shall not issue any cheque books and/or debit cards etc. to the claimants in future also.
26. COMPENSATION IN MACP No.04/17 As stated above, the deceased Master Gopal was a child at the time of accident and the law with regard to grant of compensation in respect of cases of children stands now well settled by the Hon'ble Delhi High Court in the case of Chetan Malhotra Vs. Lala Ram & Ors., MAC App. No. 554/10, decided on 13.05.2016, wherein not only the entire existing law on the subject was discussed, but it was also laid down that such notional earnings to be presumed or taken in respect of children should also take into calculations the effect of Cost Inflation Index (CII) as well as the composite non pecuniary damages taking care of not only of the conventional heads but also the future prospects as awarded in the celebrated case of R.K. Malik Vs. Kiran Pal (2009) 14 SCC 1, which should be added to the pecuniary loss of estate calculated on the basis of said notional income in respect of death of a child in a road accident. The relevant observations made by his lordship and the formula given for calculation of compensation in case of death of a child in the above said case is as under :-
"65.Having regard to the fluctuating trends in CPI (IW), this court finds the Cost Inflation Index (CII) determined and notified by the Ministry of Finance in Government of India under Section 48 of Income Tax Act, 1961 for each financial year, to be a better method to off-set the effect of inflation on the real value of money. This approach, if followed, would ensure that there is no inconsistency in the awards of compensation in cases of death of children. [R.K.Malik (supra) and Balram Prasad v. Kumar Saha (2014) 1 SCC. Since the amount which requires to be subjected to correction was determined by decision in R.K.Malik wherein cause of action had arisen on 10.11.1997, the financial year 1997-98 is taken as the "base year".
67. In the considered view of this Court, the cases for compensation on account of death of children in motor vehicular accident cases ought to be MACP Nos. 02/17, 03/17 and 04/17 Page No. 24 of 34 dealt with by considering the claim towards pecuniary damages (towards loss to estate), in accordance with the age-group wise categories as in R.K.Malik (supra); the first category being of children less than 10 years‟ in age, the second category being of children more than 10 years ‟ and up to 15 years‟ in age, and the third category of children more than 15 years‟ but not having attained the age of majority (18 years). The children in the third category would ordinarily be of such age group as is generally receiving formal school education or those that are (being) imparted special training so as to be equipped with requisite skills to be gainfully employed in a variety of trades. They are after all nearing adulthood and thus, on the threshold of becoming self-reliant. In such cases, the prospects of their employability and earnings in future or present, based on evidence adduced about their academic track record or training in special talents or skills, would need to be borne in mind. As in Lata Wadhwa (supra), the claim for pecuniary damages arising out of death of children of this age group cannot be at par with the lower age groups falling in the first and second category. Therefore, the pecuniary loss to estate due to their death would deserve to be worked out by applying a higher multiplier on the notional income (of non-earning persons) unless, of course, case is properly made out for higher considerations. Noticeably, in Sarla Verma (supra) the Supreme Court specified the multiplier of 18 for cases where the deceased was in the age-group of 15 years‟ to 20 years‟ old. For the first and second category, however, the multiplier of 10 and 15 respectively, as used in R.K. Malik (supra), would hold good.
2. Since in the claims arising out of death of children, generally speaking, (non-earning hands), the income is to be notionally assumed on the basis of the second schedule to the MV Act, the general practice of deduction of one-half (50%) towards personal & living expenses, as applied in case of bachelors above the age of 18 years would be unfair. Pertinently, the notional income specified for non-earning persons in the second schedule is very low as compared to the rates of minimum wages. Therefore, the deduction of one-third (1/3rd) on this account, as provided by the first note below the second schedule would only be appropriate.
69. The award of compensation must necessarily take into account non- pecuniary damages. In R.K. Malik (supra), ₹75,000/- awarded by this Court as the "conventional compensation" was enhanced by the Supreme Court by further similar amount (₹75,000/-) as the "compensation for future prospects". For the reasons set out earlier, in the context of pecuniary loss to estate, the composite sum of non- pecuniary damages of ₹1,50,000/- [as awarded in R.K. Malik (supra)] would deservedly be added, but with suitable correction so as to ensure that the deficiency in the real value of money is made good. As noted (in para 46) earlier, the Supreme Court justified the addition of `75,000/- towards compensation for "future prospects" by noting that the said amount was "roughly half of the amount given on account of pecuniary damages". Since the court had also upheld the award of similar sum (`75,000/-) by this court as "conventional compensation", both amounts of non-pecuniary damages, put together, account for roughly an amount equivalent to the sum computed as pecuniary loss to estate. Thus, this court is of the view that a composite sum equal to the amount computed as pecuniary loss to estate may be added as non- pecuniary damages (inclusive of conventional compensation and for future prospects), in such cases as at hand to arrive at the appropriate figure of „just compensation‟.
70. It has been noticed by this Court that the tribunals have been assessing the compensation and awarding it to the last rupee, at times even in the fraction of a rupee, not bothering to follow the practice of rounding off. Awards in at least two of the cases from which the appeals at hand arise provide ready illustration. This seems to be not correct. It must be added here that human misery cannot be calculated with such mathematical MACP Nos. 02/17, 03/17 and 04/17 Page No. 25 of 34 precision. Even otherwise for convenience of accounting, it is desirable that the amount of award is rounded off to the nearest (if not next) thousands of rupees.
71. Subject to all other requisite conditions being fulfilled, for the foregoing reasons, in order to bring about consistency and uniformity in approach to the issue, it is held that claims for compensation on account of death of children shall be determined as follows :
3. Till such time as the law is amended by the legislature, or the Central Government notifies the amendment to the Second Schedule in exercise of the enabling power vested in it by Section 163-A (3) of the Motor Vehicles Act, 1988, and except in cases wherein the prospects of employability and earnings (in future or present) of the deceased child are proved by cogent and irrefutable evidence, this having regard, inter alia, to the academic record or training in special talents or skills, for computing the pecuniary damages on account of the loss to estate, the notional income of non-earning persons (`15000/- p.a.) as specified in the Second Schedule (brought in force from 14.11.1994), shall be assumed to be the income of the deceased child, and taken into account after it is inflation- corrected with the help of Cost Inflation Index (CII) as notified by the Government of India from year to year under Section 48 of the Income Tax Act, 1961, by applying the formula indicated hereinafter.
(ii) For inflation-correction, the financial year of 1997- 1998 shall be treated as the "base year" and the value of the notional income relevant to the date of cause of action shall be computed in the following manner :-
[15,000/- x A ÷331 [wherein the figure of „`15,000/-‟ represents the notional income specified in the second schedule requiring inflation-correction; „A‟ represents the CII for the financial year in which the cause of action arose (i.e. the accident / death occurred); and the figure of „331‟ represents the CII for the "base year‟]
7. After arriving at an appropriate figure of the present equivalent value of the notional income (i.e. inflation- corrected amount), it shall be rounded off to a figure in next thousands of rupees.
(iv). The amount of notional income thus calculated shall be reduced to two-third, the deduction to the extent of one- third being towards personal & living expenses of the deceased, the balance taken as the annual loss to estate (hereinafter also referred to as "the multiplicand").
(v). For assessment of the pecuniary damages on account of the death of children upto the age of 10 years, the loss to estate shall be calculated, capitalizing the multiplicand, by applying the multiplier of ten (10).
(vi). For children of the age-group of more than 10 years upto 15 years, the loss to estate shall be calculated by applying the multiplier of fifteen (15).
(vii). For children of the age-group of more than 15 years but less than 18 years, the loss to estate shall be calculated by applying the multiplier of eighteen (18).
(viii). After the pecuniary loss to estate has been worked out in the manner indicated above, an amount equivalent to the amount thus computed shall be added to it as the composite non-pecuniary damages taking care of not only the conventional heads but also MACP Nos. 02/17, 03/17 and 04/17 Page No. 26 of 34 towards future prospects as awarded in R.K. Malik v. Kiran Pal (2009) 14 SCC 1.
(ix). The final sum thus arrived at, appropriately rounded off, if so required to the nearest (if not next) thousands of rupees, shall be awarded as compensation for the death of the child.
72. The ruling in National Insurance Company Ltd. v. Farzana (2009 ACJ 2763) was rendered by a learned single Judge of this Court on 14.07.2009. Though it had built upon the dispensation in R.K.Malik (supra), given the effect of inflation elaborately discussed above, it has outlived its utility for cases relating to later years. At the same time, it must be noted, that the view in Farzana (supra) has governed the field till date, inasmuch as it has been followed by other single benches of this Court as also by tribunals in various cases. Given the modified method of calculation as is being determined by this judgment, it is possible that in some of the earlier decided cases, the compensation computed on revised lines may fall below the amount of ₹3,75,000/- computed in Farzana (supra). Since the awards in such earlier decided cases were granted with reference to the ratio in Farzana (supra), it will not be fair to order any modification in cases that relate to the period on or after 10.05.2000 (the date of cause of action in Farzana) so as to reduce the awards below the said amount of ₹3,75,000/-, particularly as some of such awards may already have been satisfied, including on account of interim orders of this Court. 73. Thus, in cases founded on cause of action arising on or after 10.05.2000, the amount of compensation shall not in any case be less than ₹3,75,000/- which was awarded in the case of National Insurance Co. Ltd. v. Farzana (2009 ACJ 2763).
27. Coming to the facts of the present case, PW1 Parshuram @ Parshu Ram in his affidavit Ex.PW1/A has stated that the deceased Master Gopal was aged around 7 years at the time of accident and he was a student of second standard at Gyan Model Public School, Gali No.4, Chauhan Patti, Delhi-94. Copy of the ration card issued in name of Sh. Surender Singh, father of the deceased, has also been filed on record by PW1 as Ex.PW1/8 (colly). The age of deceased in this document is shown as 1 year and date of issuance of this ration card is given as 15.08.2011. No other documents, like copy of his aadhar card, school certificate of above school, date of birth certificate etc., in support of age of the deceased have been filed on record by PW1. Therefore, going by Ex.PW1/8, the age of the deceased at the time of accident comes to around 5 years, 11 months and 29 days, i.e. just below 6 years. Hence, as per the law laid down in the case of Chetan Malhotra MACP Nos. 02/17, 03/17 and 04/17 Page No. 27 of 34 (supra), the multiplier of '10' is applicable for calculating the loss of estate in respect of his death and 1/3 rd of his notional earnings is required to be deducted towards his personal and living expenses.
28. In view of the law laid down in the case of Chetan Malhotra (supra), the annual notional earnings of the deceased Master Gopal come to Rs.50,981.87 (Rs.15,000 X 1125/331), which are rounded off as Rs.51,000/-. (The figure '15,000/-' represents the notional income specified in the Second Schedule requiring inflation- correction; the figure '1125' represents the CII for the relevant financial year in which the cause of action arose/accident occurred and the figure of '331' represents the CII for the base year 1997-78 as per the above judgment). After deducting 1/3rd of the above earnings towards personal and living expenses of the deceased and after applying the multiplier of 10, the pecuniary loss to estate is computed as Rs.3,40,000/- (Rs.51,000/- X 2/3 X 10) and after adding a similar amount towards composite non-pecuniary damages, the total compensation to which the petitioner of this claim petition is entitled comes to Rs.6,80,000/- (Rs.3,40,000/- + Rs.3,40,000/-) and this amount is accordingly awarded to the petitioner.
29. The petitioner in MACP No.04/17 is thus held entitled to the compensation as given in the following summary of computation in the prescribed format:-
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN FORM IV-A
1. Date of accident : 13.08.2016
2. Name of the deceased : Master Gopal
3. Age of the deceased : Just below 6 years
4. Occupation of the deceased : Student
5. Income of the deceased : Notional income of Rs.15,000/-
6. Name, age and relationship of legal representative of deceased:-
Srl. No. Name Age Relation
(i) Kanhaiya Singh 10 years brother
MACP Nos. 02/17, 03/17 and 04/17 Page No. 28 of 34
Computation of Compensation
Srl. No. Heads Amount Awarded
7. Income of the deceased (A) Rs. 51,000/- per annum
(rounded off)
8. Add-Future Prospects (B) Nil as the compensation has
been computed as per the
structured formula in
Second Schedule of the Act.
9. Less-Personal expenses of the 1/3rd of Rs.51,000/-
deceased (C)
10. Monthly loss of dependency N/A (see column no.8)
[(A+B) - C = D]
11 Annual loss of dependency (D x N/A (see column no.8)
12)
12 Multiplier (E) 10
13 Total loss of dependency (D x N/A (see column no.8)
12 x E = F)
14 Medical Expenses (G) N/A (see column no.8)
15 Compensation for loss of love N/A (see column no.8)
and affection (H)
16 Compensation for loss of N/A (see column no.8)
consortium (I)
17 Compensation for loss of estate Rs.3,40,000/- + Rs.3,40,000/-
(J) towards composite non-
pecuniary damages
18 Compensation towards funeral N/A (see column no.8)
expenses (K)
19 TOTAL COMPENSATION Rs. 6,80,000/-
(F + G + H + I + J+K =L)
20 RATE OF INTEREST AWARDED 9% pa from date of filing of
petition, i.e. 03.01.2017, till
deposit and 12% thereafter.
21 Interest amount up to the date of Rs.1,06,303.56
award (M)
22 Total amount including interest Rs.7,86,303.56
(L+M) (rounded off to
Rs.7,87,000/-)
23 Award amount released Nil
24 Award amount kept in FDRs Entire amount after
excluding the amount of
interim award granted to the
petitioner vide order dated
MACP Nos. 02/17, 03/17 and 04/17 Page No. 29 of 34
01.05.2017 and the amount
deducted on account of
TDS on the interest
amount, if any.
25 Mode of disbursement of the award Through bank
amount to the claimant(s)
26 Next date for compliance of award 03.01.2019
RELIEF
30. The petitioner in MACP No.04/17 is thus awarded a sum of Rs.7,87,000/- (Rupees Seven Lacs Eighty Seven Thousand only), including interest @ 9% per annum from the date of filing of claim petition, i.e. 03.01.2017, till date and also interest at the same rate till notice of deposit is given to the petitioner. However, it is directed that the amount of interim award granted vide order dated 01.05.2017 and interest for the suspended period, if any, during the course of this inquiry, shall be liable to be excluded from the above amount and calculations of compensation.
31. RELEASE Since petitioner Kanhiya Singh is minor, the entire awarded amount in this petition, after excluding the amount of interim award granted vide order dated 01.05.2017 and the amount deducted on account of TDS on the interest amount, if any., be kept in an FDR till he attains the age of 25 years of age. It is directed that monthly interest accrued on this FDR shall not be credited in the bank account of his grandfather/natural guardian, as the same has already been granted in the other two petitions. The amount of FDR on maturity be released in savings bank account of the above petitioner bearing no. 37687069152 being maintained at State Bank of India, Mahewa Branch, District Etawah, Uttar Pradesh, with IFSC Code SBIN0002572.
The bank shall not permit any joint names to be added in MACP Nos. 02/17, 03/17 and 04/17 Page No. 30 of 34 the savings bank account or fixed deposit account of the petitioner/ claimant i.e. the savings bank account of the claimant shall be individual savings bank account and not a joint account. However, the concerned bank shall permit the claimant to withdraw money from his above savings bank account by means of a withdrawal form.
The original fixed deposit shall be retained by the UCO Bank, PHC, New Delhi in safe custody. However, the statement containing FDR number, FDR amount, date of maturity and maturity amounts shall be furnished by bank to the claimant.
The maturity amounts of the FDR be credited by ECS in the above mentioned savings bank account of the claimant. No loan, advance or withdrawal or pre-mature discharge be allowed on the fixed deposits without permission of the Court.
Original passbook containing requisite endorsements of the Bank Manager concerned that no cheque books or ATM cards shall be issued to him in the said account of the petitioner of this petition has already been produced before this tribunal and copy of his aadhar card has also been filed. It is directed that the concerned bank shall not issue any cheque books and/or debit cards etc. to the claimant in future also.
32. LIABILITY Though, all the respondents are held jointly and severally liable to pay the awarded amount of compensation, but since R-3/ Insurance Co. has not proved any violation of the terms and conditions of insurance policy and has also failed to bring any substantive evidence showing any contributory negligence on the part of the deceased persons, R-3 is directed to deposit the above award amount with UCO Bank, Patiala House Court Branch, alongwith interest @ 9% per annum, by way of crossed cheques/DDs in name of the petitioners within 30 days from today MACP Nos. 02/17, 03/17 and 04/17 Page No. 31 of 34 failing which it will be liable to pay interest at the rate of 12% per annum for the period of delay. In case even after passage of 90 days from today, R-3 fails to deposit this compensation with proportionate interest, in that event, in light of the judgment of the Hon'ble High Court of Delhi in the case of New India Assurance Company Limited Vs. Kashmiri Lal, 2007 ACJ 688, this compensation shall be recovered by attaching the bank account of the insurance company with a cost of Rs.5,000/-.
R-3 shall inform the claimants and their counsel through registered posts that the cheques of the awarded amount is being deposited so as to facilitate them to collect their cheques.
33. The copy of this award be given to the parties free of cost. Ahlmad is directed to send the copy of the award to Ld. Metropolitan Magistrate concerned and Delhi Legal Services Authority in view of Judgment titled as Rajesh Tyagi Vs. Jaibir Singh & Ors. passed in FAO no.842/2003 dated 12.12.2014.
34. Further Nazir is directed to maintain the record in Form VII as per the directions given by the Hon'ble Delhi High Court in the above case on 15.12.2017.
35. The particulars of Form-V of the Modified Claims Tribunal Agreed Procedure, in terms of directions given by the Hon'ble Delhi High Court in the above case on 15.12.2017, are as under:
1. Date of the accident 13.08.2016
2. Date of intimation of the accident by Not applicable being outstation I.O. to the Claims Tribunal. matters
3. Date of intimation of the accident by
-do-
I.O. to the Insurance company.
4. Date of filing of Report u/s.173 Cr.PC
-do-
before the Metropolitan Magistrate.
5. Date of filing of Details Accident Report (DAR) by IO before Claims -do-
Tribunal.
MACP Nos. 02/17, 03/17 and 04/17 Page No. 32 of 34
6. Date of service of DAR on Insurance
-do-
Company
7. Date of service of DAR on
-do-
claimant(s).
8. Whether DAR was complete in all
-do-
respects?
9. If not, state deficiencies in the DAR -do-
10. Whether the police has verified the
-do-
documents file with DAR?
11. Whether there was any delay or deficiency on the part of the
-do-
Investigating Officer? If so, whether any action/direction warranted?
12. Date of appointment of Designated Not given Officer by the Insurance Company.
13. Name, address and contact number of the Designated Officer of Not given Insurance Co.
14. Whether the Designated Officer of the Insurance Company submitted his Outstation matters report within 30 days of the DAR?
15. Whether the Insurance Company admitted the liability? If so, whether the Designated Officer of the Legal offer not filed being outstation Insurance Company fairly computed matters the compensation in accordance with law.
16. Whether there was any delay or deficiencies on the part of the Designated Officer of the Insurance Not applicable Company? If so, whether any action/direction warranted?
17. Date of response of the claimant(s) of Not applicable the offer of the Insurance Company.
18. Date of the award 29.09.2018
19. Whether the award was passed with No the consent of the parties?
20. Whether the claimant(s) were directed to open savings bank Yes account(s) near their place of residence?
21. Date of order by which claimant(s) 23.04.2018 were directed to open savings bank account(s) near his place of residence and produce PAN Card and Adhaar Card and the direction to the bank not issue any cheque book/ debit card to claimants and make an endorsement to this effect on MACP Nos. 02/17, 03/17 and 04/17 Page No. 33 of 34 passbooks.
22. Date on which the claimant(s) produced the passbook of their savings bank account near the place 27.08.2018 of their residence alongwith endorsement, PAN & Adhaar Cards?
23. Permanent Residential Address of the R/o. Mandir Mahewa, Claimant(s) Chakarnagar, Etawah, Uttar Pradesh-206128.
24. Details of savings bank account (s) of P-1 = 37687069152 the claimant(s) and the address of the P-2 = 36103873246 bank with IFSC Code. P-3 = 34035515452 All being maintained at State Bank of India, Mahewa Branch, IFSC Code SBIN0002572.
25. Whether the claimant(s) savings bank account(s) is near his/her place of Yes residence?
26. Whether the claimant(s) were examined at the time of passing of Yes the award to ascertain his/their financial condition?
36. Files of all these three cases be consigned to Records after necessary formalities. Separate files be prepared for compliance report and be put up on 03.01.2019.
MANOJ Digitally signed
by MANOJ
KUMAR KUMAR NAGPAL
Date: 2018.10.03
NAGPAL 14:14:12 +0400
Announced in the open court. (M.K.Nagpal)
on 29.09.2018 PO/MACT, New Delhi
MACP Nos. 02/17, 03/17 and 04/17 Page No. 34 of 34