Delhi District Court
Kiran Tripathi vs . Islam Khan & Ors. on 12 December, 2022
IN THE COURT OF MS. SHEFALI BARNALA TANDON
PRESIDING OFFICER : MOTOR ACCIDENT CLAIMS
TRIBUNAL, NEW DELHI DISTRICT, PATIALA HOUSE COURTS,
NEW DELHI
IN THE MATTER OF:
KIRAN TRIPATHI VS. ISLAM KHAN & ORS.
DAR NO. 229/18
1. Smt. Kiran Tripathi (Mother of deceased) (Since deceased)
W/o Late Sh. Akhilesh Tripathi
2. Sh. Shivam Tripathi (Brother of deceased)
S/o Late Sh. Akhilesh Tripathi
Both R/o V-823, Gali No. 8A, Vijay Park,
Maujpur, Delhi-110053.
......Petitioners/claimants being
LRs of deceased Ms. Shweta Tripathi
Versus
1. Sh. Islam Khan (Driver of offending vehicle)
S/o Sh. Feli Khan
R/o Village Rabhana, Tehsil Tijara,
District Alwar, Rajasthan.
2. Sh. Tula Ram (Owner of offending vehicle)
S/o Sh. Mahavir
R/o H.No. 13, Village Nikhri, Rewari,
Haryana.
3. M/s New India Assurance Co. Ltd. (Insurer)
3/10-11, Laxman House, IInd Floor, Asaf Ali Road,
DAR No. 229/18 Page no.1 of 29
New Delhi.
4. Anil Kumar (Purchaser of offending vehicle)
S/o Sh. Rajender Singh
R/o V&PO Masani, Tehsil & District Rewari,
Haryana.
.....Respondents
Date of filing of DAR : 20.03.2018
Date of framing of issues : 23.05.2018
Date of concluding arguments : 28.11.2022
Date of decision : 12.12.2022
AWARD/JUDGMENT
1. The claim for compensation raised in this Detailed Accident
Report (DAR) is in respect of fatal injuries alleged to have been sustained
by the deceased Ms. Shweta Tripathi in a road accident that took place on
21.09.2017, at about 11.50 pm, at NH-8 towards Delhi, infront of City Park
Hotel, Service Road, New Delhi, regarding which one FIR No.453/17,
under Sections 279/304-A IPC was registered at PS Vasant Kunj South. The
vehicle involved in this case is a truck bearing registration No. HR-55M-
3562, which at the relevant time of accident was being driven by respondent
no.1 (R1), owned by respondent no. 2 (R2), insured with respondent no. 3
(R3) and alleged to have purchased by respondent no. 4 (R-4).
2. The claimants are the mother and brother of the deceased.
Succinctly put, facts of case, as per DAR, are that on the above said date
and time, the deceased Ms. Shweta Tripathi was riding her scooty bearing
registration No. DL-10ST-5779. When she reached service road of NH-8
towards Delhi, infront of City Park Hotel, New Delhi at around 11.50 pm,
DAR No. 229/18 Page no.2 of 29
the offending truck bearing registration No. HR-55M-3562 which was
being driven by respondent no. 1 at a very high speed and in rash and
negligent manner, came from behind and hit the scooty of deceased due to
which the deceased fell down on the road and sustained grievous injuries. It
is further stated that after the accident, the deceased was removed to Indian
Spinal Injuries Centre where her MLC was prepared and thereafter, the
deceased was shifted to Maharaja Agrasen Hospital, Punjabi Bagh, New
Delhi and lateron shifted to JPNA Trauma Centre where the deceased
succumbed to her injuries during the course of her treatment.
3. Respondent no. 1 has filed his written statement to the DAR
wherein it is stated that he was holding a valid and effective driving license
at the time of accident. It is further sated that the FIR was registered against
him on false and baseless grounds as no such accident had taken place. It is
further stated that the offending vehicle was duly insured with M/s New
India Assurance Co. Ltd. w.e.f. 05.02.2017 to 04.02.2017 and hence, he is
not liable to pay any compensation to the petitioner.
4. Respondent no. 3/Insurance Company has filed its written
statement to the DAR wherein it is admitted that the offending vehicle stood
duly insured with them in the name of respondent no. 2 w.e.f. 05.02.2017 to
04.02.2018. It is further stated that as per DL verification report filed by the
IO along with the DAR, the respondent no. 1 was not having valid driving
license to drive the offending vehicle at the time of accident and he was
only authorized to drive LMV(NT).
5. Respondent no. 4 has filed his written statement to the DAR
wherein it is stated that the respondent no. 1 was holding a valid and
DAR No. 229/18 Page no.3 of 29
effective driving license at the time of accident. It is further stated that he
had seen the original driving license and checked the driving skills of
respondent no. 1 before giving him employment. It is further stated that he
has no liability to pay any compensation to the petitioners as the offending
vehicle was duly insured with M/s New India Assurance Co. Ltd. w.e.f.
05.02.2017 to 04.02.2017.
6. On 23.05.2018, the following issues were framed by this
tribunal:-
1. Whether Ms. Shweta Tiwari sustained injuries in the
accident which occurred on 21.09.2017 at about 11.50 pm,
at NH-8 towards Delhi, infront of City Park Hotel, Service
Road, New Delhi caused by rash and negligent driving of
vehicle No. HR-55M-3562 driven by R-1 Sh. Islam Khan,
owned by R-2 Sh. Tula Ram, subsequently purchased by
R-4 Sh. Anil Kumar and insured with R-3 M/s New India
Assurance Co. Ltd. ? OPP.
2. Whether the petitioners are entitled to compensation?
If so, to what amount and from whom? OPP
3.Relief.
7. The Tribunal has heard the arguments advanced by Sh. Manoj
Goel, Advocate for the petitioners and Sh. S.C. Sharma, Advocate for the
respondent no. 3/Insurance Company and has perused the entire record,
including the written submissions and case laws filed on record. It is
pertinent to mention that R-2 was proceeded ex-parte vide order dated
23.05.2018.
8. Perusal of record reveals that the petitioner no. 1 had expired
during the course of trial and vide order dated 11.10.2021, the application
DAR No. 229/18 Page no.4 of 29
under Order 22 Rule 2 CPC filed on behalf of remaining petitioner was
allowed by the Ld. Predecessor of the Tribunal.
9. During the course of final arguments, Ld. Counsel for
Insurance Company has argued that the petitioner no. 1 Smt. Kiran Tripathi
has expired during the course of proceedings and hence, the DAR deserves
to be dismissed. However, per contra, Ld. Counsel for petitioners has
argued that there were two claimants on the date of accident and therefore,
subsequently, any change in the number of claimants on account of demise
of any of the claimants does not give any effect to the same. In this regard,
Ld. Counsel for petitioners has relied upon the judgment of Hon'ble
Supreme Court in case titled as "Kirti & Anr. Etc. Vs. Oriental Insurance
Co. Ltd., LawSuit (SC) 6, decided on 05.01.2021, wherein it was held as
under :-
"10. We have thoughtfully considered the rival submissions. It cannot
be disputed that at the time of death, there in fact were four dependents
of the deceased and not three. The subsequent death of the deceased's
dependent mother ought not to be a reason for reduction of motor
accident compensation. Claims and legal liabilities crystallise at the
time of the accident itself, and changes post thereto ought not to
ordinarily affect pending proceedings. Just like how appellant-claimants
cannot rely upon subsequent increases in minimum wages, the
respondent-insurer too cannot seek benefit of the subsequent death of a
dependent during the pendency of legal proceedings."
Accordingly, placing reliance upon the aforesaid judgment, the
present DAR cannot be dismissed as the surviving petitioner is pursuing the
same.
DAR No. 229/18 Page no.5 of 29
10. Now, the Tribunal proceeds to give findings on the issues
framed in the succeeding paragraphs:
ISSUE NO. 1
1. Whether Ms. Shweta Tiwari sustained injuries in the
accident which occurred on 21.09.2017 at about 11.50 pm,
at NH-8 towards Delhi, infront of City Park Hotel, Service
Road, New Delhi caused by rash and negligent driving of
vehicle No. HR-55M-3562 driven by R-1 Sh. Islam Khan,
owned by R-2 Sh. Tula Ram, subsequently purchased by
R-4 Sh. Anil Kumar and insured with R-3 M/s New India
Assurance Co. Ltd. ? OPP.
Onus to prove this issue was upon the petitioners. The first
question that needs to be decided is whether the accident was caused by
vehicle bearing registration No. HR-55M-3562. In order to prove the same,
the petitioners have examined eye witness on record Sh. Vinay Kumar as
PW2 who deposed that on the date of accident, he was posted at Traffic
Circle, Kapashera and was on duty of night checking vehicles at NH-8,
New Delhi. He further deposed that during the process of checking the
vehicles at about 11.45 pm, one truck bearing registration No. HR-55M-
3562, which was being driven by its driver in a rash and negligent manner
and at a high speed, came from behind and hit the scooty of deceased due to
which she fell down on the road and sustained injuries. He further deposed
that the driver of truck ran away from the spot of accident leaving behind
his truck at the left side of the road. He further deposed that his statement
under Section 161 Cr.P.C. was recorded by the police and the site plan was
prepared at his instance. He further deposed that the accident took place due
to absolute negligence on the part of driver of the offending truck.
DAR No. 229/18 Page no.6 of 29
During cross examination, he deposed that the speed of
offending truck was around 65-70 km per hour and speed of scooty was
around 30 km per hour at the time of accident. He admitted that the front
left side portion of truck had hit the scooty from behind and the said fact is
mentioned in his statement recorded under Section 161 Cr.P.C. PW2 was
confronted with his statement recorded under Section 161 Cr.P.C. which has
been proved on record as Mark PW2/R3/A to which he admitted that the
above fact is not recorded in his statement rather it is mentioned that the left
rear portion of the truck had hit the scooty of victim when the driver of the
offending truck turned it towards left. He denied the suggestion that the
accident took place due to negligence of scooty driver.
11. The petitioners have also examined on record HC Ravneek
Kumar/Investigating Officer as PW3 who deposed that he had filed the
chargesheet of criminal case for offences under Sections 279/304-A IPC
against the accused Islam Khan. He further deposed that he had also filed
the DAR Ex. PW3/A (colly) before Tribunal along with copy of charge-
sheet and other documents. During cross examination, he denied the
suggestion that he had not investigated the case properly or that he had
falsely implicated and driver and vehicle in collusion with the LRs of
deceased.
12. Ld. Counsel for the petitioners has relied upon the judgment of
Hon'ble Supreme Court in case titled as National Insurance Company Ltd.
Vs. Chamundeswari & Ors., LawSuit (SC) 594, decided on 01.10.2021,
wherein it was held that
".....8. It is to be noted that PW-1 herself travelled in the very car
DAR No. 229/18 Page no.7 of 29
and PW-3, who has given statement before the police, was
examined as eye-witness. In view of such evidence on record,
there is no reason to give weightage to the contents of the First
Information Report. If any evidence before the Tribunal runs
contrary to the contents in the First Information Report, the
evidence which is recorded before the Tribunal has to be given
weightage over the contents of the First Information Report. In
the judgment, relied on by the appellant's counsel in the case of
Oriental Insurance Company Limited v. Premlata Shukla and
Others, this Court has held that proof of rashness and negligence
on the part of the driver of the vehicle, is therefore, sine qua non
for maintaining an application under Section 166 of the Act. In
the said judgment, it is held that the factum of an accident could
also be proved from the First Information Report. In the judgment
in the case of Nishan Singh and Others v. Oriental Insurance
Company Limited, this Court has held, on facts, that the car of
the appellant therein, which crashed into truck which was
proceeding in front of the same, was driven negligently by not
maintaining sufficient distance as contemplated under Road
Regulations, framed under Motor Vehicles Act, 1988. Whether
driver of the vehicle was negligent or not, there cannot be any
straitjacket formula. Each case is judged having regard to facts of
the case and evidence on record. Having regard to evidence in the
present case on hand, we are of the view that both the judgments
relied on by the learned counsel for the appellant, would not
render any assistance in support of his case."
13. During the course of final arguments, Ld. Counsel for
Insurance Company has argued that there is contributory negligence on the
DAR No. 229/18 Page no.8 of 29
part of deceased. Per contra, Ld. Counsel for petitioners has argued that
none of the respondents neither adduced any cogent and reliable piece of
evidence to prove contributory negligence on the part of deceased nor chose
to examine either driver of the offending vehicle or any other independent
witness to prove the allegation of contributory negligence on the part of
deceased and hence, the Tribunal should not consider any contributory
negligence of the deceased.
In this regard, Ld. Counsel for petitioners has relied upon the
judgment of Hon'ble Supreme Court in case titled as Minu Rout & Anr.
Vs. Satya Pradyumna Mohapatra & Ors., 2013 LawSuit (SC) 787 and
upon the judgment of Hon'ble High Court in case titled as Mithlesh & Anr.
Vs. Rakesh Kumar & Ors., MAC Appeal No. 639/2015.
Ld. Counsel for petitioner has further relied upon the judgment
of Hon'ble Supreme Court in case titled as "Meera Devi & Anr. Vs.
H.R.T.C. & Ors., 2014 LawSuit (SC) 168, wherein it was held as under :-
".....10.To prove the contributory negligence, there must be cogent
evidence. In the instant case, there is no specific evidence to prove
that the accident has taken place due to rash and negligent driving of
the deceased scooterist. In the absence of any cogent evidence to
prove the plea of contributory negligence, the said doctrine of
common law cannot be applied in the present case. We are, thus, of
the view that the reasoning given by the High Court has no basis and
the compensation awarded by the Tribunal was just and reasonable
in the facts and circumstances of the case."
14. As per the testimony of PW3/IO, he has concluded that the
DAR No. 229/18 Page no.9 of 29
accident occurred due to rash and negligent driving of offending vehicle i.e.
vehicle bearing No. HR-55M-3562 and accordingly, the respondent no. 1
had been charge-sheeted in the aforesaid FIR for offences punishable under
Sections 279/304-A IPC.
15. Ld. Counsel for petitioners has relied upon the judgments in
cases National Insurance Company Ltd. Vs. Pushpa Rana, 2009 ACJ 287
and United India Insurance Co. Ltd. Vs. Deepak Goel and Ors., 2014 (2)
TAC 846 (Del.) decided by the Coordinate Bench of the Hon'ble Delhi
High Court, wherein it was held that
"......where the claimants filed either the certified copies of the
criminal record or the criminal record showing the completion of
investigation by police or issuance of charge sheet under Section
279/304A IPC or the certified copy of FIR or the recovery of the
mechanical inspection report of the offending vehicle, then these
documents are sufficient proof to reach to a conclusion that the
driver was negligent particularly when there is no defence
available from the side of driver."
Ld. Counsel for petitioners has further relied upon the
judgment of Hon'ble Delhi High Court in case Bajaj Allianz General
Insurance Co. Ltd. Vs. Meera Devi & ors., 2021 LawSuit (Del) 2021
wherein it was held that
"......in view of Delhi Motor Accident Claim Tribunal Rules,
2008, contents of DAR has to be presumed to be correct and
read in evidence without formal proof of the same unless proof
to the contrary was produced."
DAR No. 229/18 Page no.10 of 29
Reliance has been placed upon the recent judgment of Hon'ble
Delhi High Court in case Jamanti Devi & Ors. Vs. Maheshwar Rai & Ors.,
MAC Appeal No. 831/2015, decided on 19.11.2022 wherein the Hon'ble
Delhi High Court has taken the similar view as taken in the aforesaid
judgments that the charge-sheet is sufficient to prove the negligence on the
part of driver of the offending vehicle, especially when no evidence has
been led on behalf of respondents.
Reliance is placed upon the judgment of the Hon'ble Apex
Court in case titled as Mangla Ram Vs. Oriental Insurance Co. Ltd. &
Ors., 2018 Law Suit (SC) 303 wherein it has been observed that
"......filing of charge sheet against the driver prima facie points
towards his complicity in driving the vehicle rashly and
negligently. It has been further observed that even when the
accused were to be acquitted in the criminal case, the same may
be of no effect on the assessment of the liability required in respect
of motor accident cases by the Tribunal."
16. Further, as per the mechanical inspection report filed along
with the DAR, there were fresh damages found on the Honda Activa scooty
of victim, wherein it is also stated that front right side body frame, right side
plastic part etc. were found broken/damaged which also supports the
version of the eye witness as he has stated during his cross examination that
the offending truck had hit the scooty from front left side of the truck. This
also points towards the fact that the truck driver was trying to overtake the
scooty from right side, though commercial vehicles are prohibited from
overtaking as they have to ply in their own lane, i.e. specified for
commercial vehicle.
DAR No. 229/18 Page no.11 of 29
17. Pertinently, respondent no. 1 himself was the best witness who
could have stepped into the witness box to rebut his involvement in the
aforesaid accident, which he has failed to do. Therefore, an adverse
inference is drawn against the respondent no. 1/driver in terms of judgment
of Hon'ble High Court of Delhi passed in the case of Cholamandalam
M.S. General Insurance Company Ltd. Vs. Kamlesh, reported in 2009 (3)
AD (Delhi) 310.
18. It is well settled that the procedure followed for proceedings
conducted by an accident tribunal is similar to that followed by a civil court
and in civil matters, the facts are required to be established on
preponderance of probabilities and not beyond reasonable doubt, as is
required in a criminal prosecution. Reference in this regard is made to the
judgment of Hon'ble Apex Court reported as (2009) 13 SC 530 in case
titled Bimla Devi and others Vs. Himachal Road Transport Corporation
and others, wherein it has been observed that strict proof of an accident
caused by a particular vehicle in a particular manner may not be possible to
for the claimants and the claimants were required to establish their case on
the touchstone of preponderance of probability.
19. In view of foregoing reasons, it is held that the aforesaid
accident took place due to rash and negligent driving of the offending
vehicle bearing registration no. HR-55M-3562 and the said vehicle at that
time was being driven by respondent no. 1, owned by respondent no. 2,
insured with respondent no. 3 and alleged to have purchased by respondent
no. 4. Hence, this issue is decided in favour of the petitioners and
against the respondents.
DAR No. 229/18 Page no.12 of 29
ISSUE NO. 2
Whether the petitioners are entitled for compensation? If so, to
what amount and from whom?
20. As rashness and negligence on part of driver of the offending
vehicle/respondent no. 1 has been proved, the petitioners have become
entitled to compensation for death of their family member in the said
accident, but the computation of compensation and liability to pay the same
are required to be decided. The compensation to which the petitioners are
entitled shall be under the heads as discussed hereinafter.
(I) Loss of dependency
21. The petitioner no. 1 Smt. Kiran Tripathi, mother of deceased
has stepped into the witness box as PW1 and filed her evidence by way of
affidavit as Ex. PW-1/A wherein she has claimed that her deceased
daughter was a qualified physiotherapist and she has done her Bachelor of
Physiotherapy from Teerthanker Mahaveer University, Moradabad, U.P.
during the sessions 2011 to 2015. She further deposed that her deceased
daughter had done internship from Army Hospital (Research & Referral),
Delhi Cantt., New Delhi for the period w.e.f. 18.08.2015 to 19.09.2015 and
20.09.2015 to 21.03.2016. She further deposed that her deceased daughter
was working with M/s RR Health Care Consultants, A-14/1, DLF Phase-1,
Golf Course Road, Gurgaon, Haryana on the post of Junior Physiotherapist
and was getting salary of Rs. 10,000/- per month and incentives. Her
deceased daughter was also imparting services of physiotherapy to various
patients/clients and was earning more than Rs. 50,000/- per month.
DAR No. 229/18 Page no.13 of 29
The petitioner no. 1 has placed on record copy of marksheet,
provisional degree and migration certificate of her deceased daughter with
respect to Bachelor of Physiotherapy as Ex. PW1/8 (colly), copy of
certificates issued by Teerthanker Mahaveer University for participating in
Mehndi competition and short movie competition by the deceased as Ex.
PW1/9 (colly), copy of certificate issued by Walkathon, The Indian
Association of Physiotherapists in favour of deceased as Ex. PW1/10
(OSR), copy of certificate date 08.08.2015 issued by Teerthanker Mahaveer
University as Ex. PW1/11 (OSR), copy of certificate dated 21.03.2016
issued by Army Hospital as Ex. PW1/12 (OSR), copy of certificate issued
by Army Hospital showing physiotherapy internship for the period w.e.f.
20.09.2015 to 21.03.2016 as Ex. PW1/13 (OSR), copy of course
completion certificate dated 30.03.2016 issued by Teerthanker Mahaveer
University in favour of deceased as Ex. PW1/14 (OSR), copy of conduct
certificate dated 30.03.2016 as Ex. PW1/15 (OSR), copy of internship
certificate dated 30.03.2016 issued by University in favour of deceased as
Ex. PW1/16 (OSR), copy of Form for verification of tenants showing
tenanted address of the deceased as Mark A, original treatment record of
deceased as Ex. PW1/17 (colly), original bill dated 21.09.2017 for a sum of
Rs. 2470/- as Ex. PW1/18, original certificate dated 11.10.2017 issued by
RR Health Care Consultants showing the basic monthly salary of Rs.
10,000/- and incentives of deceased as Ex. PW1/19 and original certificate
issued by Theracare showing the details and particulars of patients of
deceased as Ex. PW1/20.
During her cross examination, PW1 deposed that her
deceased daughter was not filing income tax returns and was unmarried
DAR No. 229/18 Page no.14 of 29
at the time of accident. She denied the suggestion that the documents
regarding employment and income of her deceased daughter are forged and
fabricated.
22. In order to prove the employment and income of her deceased
daughter, the petitioners have examined on record Sh. Anoop Kumar Jain
from the office of her deceased daughter as PW4 who deposed that the
deceased Ms. Shweta Tripathi was working with their clinic as Junior
Physiotherapist w.e.f. March 2017 till her accident on 20.09.2017 and was
being paid salary of Rs. 10,000/- per month apart from monthly incentives
paid on the basis of her performance. He admitted that the certificate dated
11.10.2017 showing the salary and incentives of deceased available on court
file as Ex. PW1/19 is genuine and correct and was issued under his
signatures and duly stamped. He further deposed that if the deceased had
survived and had been in service, her services would have definitely
become permanent by next month and her salary would have been revised
to more than Rs. 20,000/- per month. He further deposed that apart from
doing the said job, the deceased was also imparting services of
physiotherapy to the patients recommended by us at their respective homes
and was charging fees from the said patients directly. He further admitted
the certificate showing the details/particulars of patients and fees available
on court file as Ex. PW1/20 is correct and genuine and the same was issued
under the signatures.
PW4 has placed on record downloaded copy of Form ST2 as
Ex. PW4/1 (colly), copy of PAN card of their clinic as Ex. PW4/2, salary
slips for the period w.e.f. March, 2017 to September, 2017 as Ex. PW4/3
DAR No. 229/18 Page no.15 of 29
(colly), copy of attendance register as Ex. PW4/4 (colly).
During cross examination, PW4 admitted that he has not filed
any bank statement showing the transfer of salary of deceased into her bank
account. He further admitted that he has not filed any appointment letter
issued in favour of deceased, but he volunteered that the same may be
available with the deceased. He admitted that he has not brought any record
with regard to the patients recommended by them to the deceased except a
certificate already filed on record.
23. However, perusal of salary slips for the months of March,
April, July, August and September, 2017 issued by RR Health Care
Consultant in favour of deceased as Ex. PW4/3 reveals that the deceased
was getting salary of Rs. 10,000/- per month besides the incentives. Perusal
of certificate showing the details/particulars of patients and fees as Ex.
PW1/20 reflects that the deceased was independently visiting the patients as
per her wish and convenience and the payment was made directly by the
patients to the deceased, but the aforesaid document shows the fees receipt
for the month of August to September, 2017 which is approx. Rs. 2800/-
only, which is contrary to the statement made by mother of deceased as
PW1 that she was earning Rs. 50,000/- per month from her independent
clients. Further, admittedly, the deceased was not filing income tax returns
which is itself proof of the fact that she was earning under the slab of
income tax which is exempted from paying the tax.
24. Further, the petitioners have also placed on record copy of
marksheet, provisional degree and migration certificate of her deceased
daughter with respect to Bachelor of Physiotherapy as Ex. PW1/8 (colly)
DAR No. 229/18 Page no.16 of 29
which shows that the deceased was graduate at the time of accident.
25. From the perusal of testimony of PW4 along with exhibited
documents, it is clear that the deceased was being paid salary of Rs.
10,000/- per month apart from monthly incentives paid on the basis of her
performance. Though, the same have not specified by the employer. Further,
as already stated, the deceased was not earning handsome amount from her
independent clients as per Ex. PW1/20. Considering all the facts and
circumstances proved on record and since the deceased was graduate at the
time of accident, the tribunal deems it fit to assess the income of deceased
on the basis of minimum wages of graduates, which was Rs. 18,462/- at the
time of accident.
26. Further, PW1 has claimed in his affidavit that her deceased
daughter was aged about 24 years and 11 months at the time of accident. In
order to prove the same, PW1 has tendered on record copy of voter ID card
and PAN card of her deceased daughter as Ex. PW1/4 and Ex. PW1/5
respectively. In both these documents, the date of birth of deceased is found
recorded as 10.10.1992. Going by these documents, the age of deceased at
the time of accident i.e. on 21.09.2017 was about 24 years, 11 months and
11 days.
Accordingly, in terms of law laid down by the Hon'ble
Supreme Court in the case of Sarla Verma & Ors. Vs. Delhi Transport
Corporation & Anr., (2009) 6 SCC 121, which has also been approved by
a Constitution Bench of the Hon'ble Apex Court in the case of National
Insurance Company Ltd. Vs. Pranay Sethi & Ors., (2017) 16 SCC 680,
the multiplier of '18' is applicable in the present case.
DAR No. 229/18 Page no.17 of 29
27. Ld. Counsel for Insurance Company has relied upon the
judgment of Hon'ble High Court of Delhi in case Keith Rowe Vs. Prashant
Sagar & Ors., MAC Appeal No. 601/2007, decided on 15.01.2010 and has
argued that one third of the income of deceased be taken while calculating
the loss of dependency as this is a case of loss of estate only. However, Ld.
Counsel for petitioners has relied upon the judgment of Hon'ble High Court
of Delhi in case Indrawati & Anr. Vs. Ranbir Singh & Ors., 2021
LawSuit (Del) 179, decided on 08.01.2021 wherein it was held as under :-
"......4. The Claims Tribunal held that the accident occurred due to the
rash and negligent driving of the driver of the offending vehicle bearing
No. HR-63A-0270 driven by respondent No.1, owned by respondent No.2
and insured by respondent No.3. The Claims Tribunal held that PW-2,
father of the deceased, was working with the Delhi Police as Sub-
Inspector and was, therefore, not dependent upon the deceased. The
Claims Tribunal further held that petitioner No.1, mother of the
deceased, cannot be said to be dependent upon the deceased as her
husband was employed with the Delhi Police. The Claims Tribunal held
that the appellants were not entitled to compensation for loss of
dependency but only to compensation for loss of the estate in terms of the
principles laid down in Keith Rowe v. Prashant Sagar, 2011 ACJ 1734.
..............
29. Copy of this judgment be sent to the Registrar General who shall circulate it to all Motor Accident Claims Tribunals. The Claims Tribunals shall note that the principles relating to the loss to the estate in Keith Rowe (supra) and Dinesh Adhlak (supra) are not applicable to the claim of the parents in respect of the death of their child, claim of children in respect of death of their parents and claim of a spouse in respect of death of his/her spouse in a motor accident."
DAR No. 229/18 Page no.18 of 29 Accordingly, the ratio decidendi in case Keith Rowe (Supra) does not apply in the present set of facts and circumstances as the mother of deceased Smt. Kiran Tripathi was pursuing the present DAR as petitioner/claimant no. 1.
28. Now coming to calculation of loss of dependency, this DAR has been filed by two petitioners being mother and brother of deceased. PW1 in her affidavit has claimed that the deceased was unmarried at the time of accident. In terms of law laid down by the Hon'ble Supreme Court in the case of Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr. (Supra) and National Insurance Company Ltd. Vs. Pranay Sethi & Ors. (Supra), 50% of earning of the deceased shall be deducted towards her personal and living expenses.
Further, in view of the law laid down in the case of National Insurance Company Ltd. Vs. Pranay Sethi & Ors. (Supra), the petitioners are entitled to addition of 40% of earning of the deceased towards future prospects as the deceased was not having any permanent job and was aged below 40 years at the time of accident. Thus, the loss of dependency in the present case is calculated to be Rs.27,91,454/- (rounded off) (Rs. 18,462/- X 12 X 50/100 X 18 X 140/100).
(II) COMPENSATION UNDER NON-PECUNIARY HEADS
29. In terms of law laid down by the Hon'ble Supreme Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi (Supra), the petitioners are also held entitled to amount of Rs.15,000/- each under the DAR No. 229/18 Page no.19 of 29 head of loss of estate and funeral expenses, i.e. Rs.30,000/- under both heads. Further, in view of Full Court judgment dated 30.06.2020 passed by Hon'ble Apex Court in United India Insurance Co. Vs. Satinder Kaur @ Satwinder Kaur & Ors. (2020) 06 SC CK 0036 (Civil Appeal Nos. 2705 and 2706 of 2020), the petitioners are entitled to Rs.40,000/- each towards 'loss of consortium', in addition to Rs.30,000/- granted under the conventional head of 'loss of estate' and 'funeral expenses.
30. Pertinently, the Hon'ble Apex Court has also held in National Insurance Company Ltd. Vs. Pranay Sethi (Supra) that compensation awarded under the conventional heads shall be enhanced at the rate of 10% in every three years and a period of 3 years have already elapsed since the deceased had expired. Hence, the petitioners in this case are also entitled to an increase @ 10% on the amount awarded under the conventional head of 'loss of estate', 'funeral charges' and 'loss of consortium'. The petitioners are thus awarded a total sum of Rs. 1,21,000/- [(Rs.30,000 + 10% of 30,000= 33,000) + (40,000 X 2 + 10% of 80,000 = 88,000/-)] under this head.
ISSUE NO.3/RELIEF
31. In view of finding on issue number 2, the petitioners are held entitled to a sum of Rs.29,12,454/- (Rupees Twenty Nine Lakhs Twelve Thousand Four Hundred Fifty Four only) (Rs. 29,12,454/- + 1,21,000/-) along with interest @ 9% per annum from the date of filing of DAR. However, it is directed that the amount of interim award and interest for the suspended period, if any, during the course of this inquiry, shall be liable to be excluded from the award amount.
DAR No. 229/18 Page no.20 of 29
APPORTIONMENT
32. As already discussed above, the petitioner no. 1 Smt. Kiran Tripathi had expired during the course of trial. Hence, the entire awarded amount is being awarded to the petitioner no. 2 Sh. Shivam Tripathi, brother of deceased.
RELEASE
33. Out of the awarded amount, 40% amount is directed to be kept with UCO Bank, Patiala House Court, New Delhi in the Motor Accident Claims Annuity Deposit (MACAD) in form of 75 monthly fixed deposit receipts (FDRs) of equal amounts for a period of 1 to 75 months in succession, as per scheme formulated by the Hon'ble Delhi High Court vide order dated 01.05.2018 in FAO No. 842/2003, titled as Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors. and as implemented vide subsequent order dated 07.12.2018 and order dated 08.01.2021 passed in the said case. The amount of FDRs on maturity would be released in his savings/MACT Claims SB Account opened/to be opened near the place of his residence and the remaining 60% amount is also directed to be released into his above said account, which can be withdrawn through withdrawal form and utilized by him.
34. The disbursement to the petitioner is, however, subject to addition of future interest till deposit proportionately and also deduction of proportionate tax on the interest amount or amount of interim award, if any, DAR No. 229/18 Page no.21 of 29 to/from their shares.
35. The bank shall not permit any joint names to be added in the saving bank account or MACAD scheme account of petitioner i.e. the bank account of petitioner shall be individual account and not a joint account.
36. The original fixed deposits shall be retained by the UCO Bank, PHC, New Delhi in safe custody. However, the statement containing FDR numbers, amounts, dates of maturity and maturity amounts shall be furnished by the said bank to the petitioners and the above amount shall be released in account of petitioners by the Manager, UCO Bank, PHC, ND through RTGS/NEFT/or any other electronic mode.
37. 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.
38. The maturity amount of the FDR(s) on monthly basis net of TDS be credited by Electronic Clearing System (ECS) in the above account of petitioner.
39. No loan, advance or withdrawal or pre-mature discharge be allowed on the MACAD without permission of the Court.
40. The concerned bank shall not 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.
DAR No. 229/18 Page no.22 of 29
41. The bank shall make an endorsement on the passbook of the claimant(s) to the effect that no cheque book and/or debit card have been issued and shall not be issued without the permission of the Court and claimant(s) shall produce the passbook with the necessary endorsement before the Court on the next date fixed for compliance.
42. It is clarified that the endorsement made by the bank along with the duly signed and stamped by the bank official on the passbook(s) of the claimant(s) is sufficient compliance of clause above.
LIABILITY
43. Since beginning, vide written statement filed by the Insurance Company/R-3, the defence has been taken regarding non validity of driving license of the driver of offending vehicle, i.e. respondent no. 1. However, as per the verification report from the concerned Licensing Authority, the driving license of respondent no. 1 was valid upto 17.11.2021. Further, copy of driving license of respondent no. 1 at page no. 61 of DAR as per which the driving license was valid for Transport uptil 17.11.2017 and non transport till 17.11.2021. Therefore, the driving license of respondent no. 1 was valid at the time of accident.
44. In view of foregoing discussions, all the respondents are though being held jointly and severally liable to pay the awarded amount of compensation to petitioners, but respondent no. 3. being insurer of offending vehicle, is directed to deposit the award amount with UCO Bank, Patiala House Court Branch, along with interest @ 9% per annum from the date of filing of DAR by RTGS/NEFT/IMPS in bank account being DAR No. 229/18 Page no.23 of 29 maintained in the above said bank in name of this tribunal within 30 days from today, failing which it is liable to pay interest at the rate of 12% per annum for the period of delay. In case even after lapse of 90 days from today, respondent no. 3 fails to deposit this compensation with interest, in that event, in light of judgment of the Hon'ble High Court of Delhi passed in the case of New India Assurance Company Limited Vs. Kashmiri Lal2007 ACJ 688, this compensation shall be recovered by attaching the bank account of Respondent no. 3 with a cost of Rs.5,000/-.
45. The respondent no. 3 shall inform the claimants and their counsels through registered post that the awarded amount has been deposited so as to facilitate them to collect the same.
46. A copy of this award be given to the parties free of cost or be sent by email. Ahlmad is directed to send a copy of the award to the Court of 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.
47. Further, Nazir is directed to maintain the record in Form XVIII as per the directions given by the Hon'ble Delhi High Court in the above case on 08.01.2021.
48. The particulars of Form-XVII of the Modified Claims Tribunal Agreed Procedure, in terms of directions given by the Hon'ble Delhi High Court in the above case on 08.01.2021, are as under:
DAR No. 229/18 Page no.24 of 29
1. Date of the accident 21.09.2017
2. Date of filing of Form I- First NA
Accident Report (FAR)
3. Date of delivery of Form-II to the NA
victim(s)
4. Date of receipt of Form-III from the NA
Driver
5. Date of receipt of Form-IV from the NA
owner
6. Date of filing of the Form-V-Interim NA
Accident Report (IAR)
7. Date of receipt of Form-VIA and NA
Form VIB from the Victim (s)
8. Date of filing of Form-VII-Detailed 20.03.2018
Accident Report (DAR)
9. Whether there was any delay or
deficiency on the part of the No
Investigating Officer? If so, whether any action/direction warranted?
10. Date of appointment of the Designated Officer by the Insurance NA Company.
11. Whether the Designated Officer of the Insurance Company submitted his No report within 30 days of the DAR?
12. Whether there was any delay or deficiencies on the part of the Designated Officer of the Insurance No Company? If so, whether any action/direction warranted?
13. Date of response of the claimant(s) Legal offer not filed of the offer of the Insurance Company.
DAR No. 229/18 Page no.25 of 29
14. Date of the award 12.12.2022
15. Whether the claimant(s) were
directed to open savings bank
account(s) near their place of Yes
residence?
16. Date of order by which claimant(s) 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 20.03.2018 issue any cheque book/debit card to the claimant (s) and make an endorsement to this effect on the passbook(s).
17. Date on which the claimant(s) produced the passbook of their savings bank account near the place of their residence along with the Yet to furnish endorsement, PAN Card and Adhaar Card?
18. Permanent Residential Address of the R/o V-823, Gali No. 8A, Claimant(s) Vijay Park, Maujpur, Delhi-110053.
19. Whether the claimant(s) savings bank account(s) is near his place of Yet to furnish residence?
20. Whether the claimant(s) were examined at the time of passing of the award to ascertain his/their financial condition? Yes DAR No. 229/18 Page no.26 of 29
49. File be consigned to Record room after compliance of necessary formalities. Separate file be prepared for compliance report and be put up on 24.01.2023.
Announced in the open court. (Shefali Barnala Tandon) on 12.12.2022 PO/MACT, New Delhi
Encl: SUMMARY OF COMPUTATION OF AWARD AMOUNT IN FORM XV DAR No. 229/18 Page no.27 of 29 SUMMARY OF COMPUTATION OF AWARD AMOUNT IN FORM XV
1. Date of accident :
21.09.2017
2. Name of the deceased :
Ms. Shweta Tripathi
3. Age of the deceased :
24 years, 11 months and 11 days
4. Occupation of the deceased : Minimum wages for graduates in Delhi.
5. Income of the deceased : Rs. 18,462/- per month
6. Name, age and relationship of legal representative of deceased:-
Srl. Name Age Relation
No.
(i) Smt. Kiran - Mother
Tripathi(expired
during the course
of trial)
(ii) Sh. Shivam 31 years Brother
Tripathi
Computation of Compensation
Sr. Heads Amount Awarded
No.
7 Income of the deceased Rs.18,462/-
(A)
8 Add-Future Prospects Rs.7,384.8/-
(B)
9 Less-Personal expenses Rs.12,923.4/-
of the deceased (C)
10 Monthly loss of Rs.12,923.4/-
dependency
[(A+B) - C = D]
11 Annual loss of Rs.1,55,080.8/-
dependency (D x 12)
12 Multiplier (E) 18
DAR No. 229/18 Page no.28 of 29
13 Total loss of Rs.27,91,454/-
dependency
(D x 12 x E = F)
14 Medical Expenses (G) Nil
15 Compensation for loss Nil
of love and affection (H)
16 Compensation for loss Rs.88,000/-
of consortium (I)
17 Compensation for loss Rs.16,500.00
of estate (J)
18 Compensation towards Rs.16,500.00
funeral expenses (K)
19 TOTAL Rs.28,62,454/- (after deducting
COMPENSATION the amount of interim award)
(F+G+H+I+J+K =L)
20 RATE OF INTEREST 9% pa from date of filing of
AWARDED DAR till deposit in 30 days and
12% thereafter.
21 Interest amount up to Rs.12,19,640.67/-
the date of award (M)
22 Total amount including Rs. 40,82,094.67/- (rounded off
interest (L+M) to Rs. 40,82,100/-)
23 Award amount released 60% share
24 Award amount kept in 40% share
FDRs/ MACAD
25 Mode of disbursement Through bank
of the award amount to
claimant(s)
26 Next date for 24.01.2023
compliance of the award
(Shefali Barnala Tandon)
PO/MACT, New Delhi
12.12.2022
DAR No. 229/18 Page no.29 of 29