Delhi District Court
Mahesh Yadav vs Kuldeep on 18 October, 2023
IN THE COURT OF SH: JAGDISH KUMAR PO:MACT2 (SOUTH
WEST): DWARKA: NEW DELHI
MACT No. 179/19
FIR No.470/18
PS Dwarka North
1. Mahesh Yadav
S/O Late Sh Yogender Yadav
R/O Village Kurauni, Post Ashtua,
P.S Singhwara, Distt Darbhanga,
Bihar847104. (Father )
2. Somiya Devi
W/O Mahesh Yadav
R/O Village Kurauni, Post Ashtua,
P.S Singhwara, Distt Darbhanga,
Bihar847104. (Mother)
....Petitioners
VERSUS
1. Kuldeep
S/O Om Prakash
R/O H. No.201, Azad Nagar,
Narwana, Jind
Haryana.
2. Shiv Kumar
S/O Jhandu Ram
R/O H. No. 470, Ward No.17
Prem Nagar,Narwana, Jind
Haryana.
3. Magma HDI General Insurance Co Ltd
Ist Floor, SCO37, Sector14,
Gurgaon12001, Haryana.
....Respondents
MACT no.179/2019 Mahesh Yadav & Ors. Vs. Kuldeep ors. Page 1 of 14
DATE OF INSTITUTION : 26.02.2019
ARGUMENTS HEARD ON : 18.10.2023
DATE OF AWARD : 18.10.2023
FORM - V
COMPLIANCE OF THE PROVISIONS OF THE MODIFIED CLAIMS TRIBUNAL AGREED PROCEXDURE TO BE MENTIONED IN THE AWARD
1. Date of the accident 28.12.2018
2. Date of intimation of the accident by the investigating 26.02.2019 officer to the Claims Tribunal (Clause 2)
3. Date of intimation of the accident by the investigating d0 officer to the insurance company. (Clause 2)
4. Date of filing of Report under section 173 Cr.P.C. Not known before the Metropolitan Magistrate (Clause 10)
5. Date of filing of Detailed Accident Information Report 26.02.2019 (DAR) by the investigating Officer before Claims Tribunal (Clause 10)
6. Date of Service of DAR on the Insurance Company Not known (Clause 11)
7. Date of service of DAR on the claimant(s). (Clause 11) 26.02.2019
8. Whether DAR was complete in all respects? (Clause Yes
16)
9. If not, whether deficiencies in the DAR removed later Not known on?
10. Whether the police has verified the documents filed Yes with DAR? (Clause 4)
11. Whether there was any delay or deficiency on the part Not known of the Investigating Officer? If so, whether any action/direction warranted?
12. Date of appointment of the Designated Officer by the Not known insurance Company. (Clause20) MACT no.179/2019 Mahesh Yadav & Ors. Vs. Kuldeep ors. Page 2 of 14
13. Name, address and contact number of the Designated Not known Officer of the Insurance Company. (Clause 20)
14. Whether the designated Officer of the Insurance Not known Company submitted his report within 30 days of the DAR? (Clause 20)
15. Whether the insurance company admitted the liability? No. If so, whether the Designated Officer of the insurance company fairly computed the compensation in accordance with law. (Clause 23)
16. Whether there was any delay or deficiency on the part Not known of the Designated Officer of the Insurance Company? If so, whether any action/direction warranted?
17. Date of response of the claimant (s) to the offer of the Not known Insurance Company. (Clause 24)
18. Date of the Award 18.10.2023
19. Whether the award was passed with the consent of the No parties? (Clause 22)
20. Whether the claimant(s) were directed to open saving Yes bank account(s) near their place of residence? (Clause
18)
21. Date of order by which claimant(s) were directed to 26.02.2019 open saving bank account (s) near his place of residence and produce PAN Card and Aadhar Card and the direction to the bank not issue any cheque book/debit card to the claimant(s) and make an endorsement to this effect on the passbook(s). (Clause
18)
22. Date on which the claimant (s) produced the passbook 20.07.2022 of their saving bank account near the place of their residence along with the endorsement, PAN Card and Aadhar Card? (Clause 18)
23. Permanent Residential Address of the Claimant(s) Village Kurauni, Post (Clause 27) Ashtua,P.S Singhwara, Distt Darbhanga, MACT no.179/2019 Mahesh Yadav & Ors. Vs. Kuldeep ors. Page 3 of 14 Bihar847104.
24. Details of saving bank account(s) of the claimant(s) and Petitioner No.1 the address of the bank with IFSC Code (Clause 27) A/c No. 255201000008388 IFSC Code:
IOBA0002552 at Indian Overseas Bank, Branch Simri, Near Simri Thana, District Darbhanga Bihar.
Petitioner No.2 A/c No. 255201000008389 IFSC Code:
IOBA0002552 at Indian Overseas Bank, Branch Simri, Near Simri Thana, District Darbhanga Bihar.
25. Whether the claimant(s) saving bank account(s) is near Yes his/her place of residence? (Clause 27)
26. Whether the claimant(s) were examined at the time of Yes passing of the award.
27. Account number, MICR number IFSC Code, name and State Bank of India, branch of the bank of the Claims Tribunal in which the Branch Sector10, award amount is to be deposited/transferred Dwarka Courts, New Delhi Account No. 37665510911 MICR No. 110002483 FORM - IV A SUMMARY OF COMPUTATION OF AWARD AMOUNT IN DEATH CASES TO BE INCORPORATED IN THE AWARD MACT no.179/2019 Mahesh Yadav & Ors. Vs. Kuldeep ors. Page 4 of 14
1. Date of accident: 28.12.2018
2. Name of deceased: Subodh Kumar
3. Age of the deceased: 18 years
4. Occupation of the deceased: Labour
5. Income of the deceased: Rs. 17,000/ per month (as per the claim).
6. Name, age and relationship of legal representatives of deceased:
S.No. Name Age Relation
(i) Mahesh Yadav 57 yrs Father
(ii) Somiya Devi 53 yrs Mother
Computation of Compensation
S.No. Heads Awarded by the Claims
Tribunal
7. Income of the deceased (A) Rs. 14,000/
8. AddFuture Prospects (B) (40%) Rs.5600/-
9. LessPersonal expenses of the deceased Rs.9800/ (50%) as deceased (C) was bachelor at the time of accident.
10. Monthly loss of dependency Rs. 9800/ { (A+B) - C =D}
11. Annual loss of dependency (Dx12) Rs. 1,17,600/ 12. Multiplier (E) 17
13. Total loss of dependency (Dx12xE = F) Rs. 19,99,200/
14. Medical Expenses (G) Nil
15. Compensation for loss of love and Nil affection (H)
16. Compensation for loss of consortium Rs. 44,000/-
(I)
17. Compensation for loss of estate (J) Rs.17,000/ MACT no.179/2019 Mahesh Yadav & Ors. Vs. Kuldeep ors. Page 5 of 14
18. Compensation towards funeral Rs.17,000/ expenses (K)
19. TOTAL COMPENSATION Rs. 22,38,800/ (F+G+H+I+J+K =L)
20. RATE OF INTEREST AWARDED 7.5% per annum 21 Interest amount up to the date of As per calculation compliance (M)
22. Total amount including interest (L+M) As per calulation
23. Award amount released 10%
24. Award amount kept in FDRs 90% equal monthly FDR's
25. Mode of disbursement of the award NEFT amount to the claimant (s) (Clause 29)
26. Next date for compliance of the award. 30.08.2023 (Clause 31) AWARD
1. The present Detailed Accident Report was filed qua the accident dated 28.12.2018. As per the facts of the present case on 28.12.2018, the deceased Subodh Yadav S/O Mahesh Yadav, alongwith one Sajjan Yadav had gone to Jonapuri Delhi for deloading Tuda ( husk) from tractor bearing No. HR32H 0966 being driven by respondent No.1. When they were returning back from there at about 05.00 A.M and reached in front of IP University, Sector16B, Dwarka N Delhi. And as deceased was sitting on the bonnet side of the tractor. The tractor was being driven by respondent No.1 at high speed, despite the fact that there was speed breaker on the road. The respondent No.1 did not slow down, the speed of tractor and as a result of which deceased fell down from the tractor and was crushed under rear tyre of tractor. He was firstly taken to DDU Hospital Delhi. Thereafter he was taken to Safdarjung Hospital, Delhi where he was MACT no.179/2019 Mahesh Yadav & Ors. Vs. Kuldeep ors. Page 6 of 14 declared as dead.
2. After investigation, investigating agency contended that said accident took place, due to rash and negligent driving of Tractor bearing No. HR32 H0966 being driven by Kuldeep (driver), who has been made respondent no. 1. Sh Shiv Kumar (owner) has been made as respondent no. 2 . Since the vehicle was insured Magma HDL General Insurance Company Ltd it was made as respondent no. 3. The present DAR has been filed by the IO. The DAR has been considered as claim application.
3. The respondent No.1 and 2 have not filed any reply/WS to the DAR.
4. The respondent no. 3 (insurance company) has filed its written statement stating therein the insurance company is not liable to pay compensation as there were violation of terms and conditions of the insurance policy as the deceased was unauthorized passenger and his risk was not covered under the policy.
5. After completion of the proceedings, following issues were framed on 24.04.2019 as under:
(i) Whether Subodh Kumar sustained fatal injuries in a motor vehicle accident dated 28.12.2018 due to rash and negligent driving of vehicle No. HR32 H 0966 being driven by Respondent 1 Kuldeep owned by Respondent No.2 Shiv Kumar and insured by respondent No.3 Magma HDL General Insurance Company Ltd ? OPP.
(ii) Whether the petitioner is entitled to claim compensation, if so, what amount and from whom? OPP.
(iii) Relief.
6. In order to prove their claim, petitioners have examined Petitioner No.1 as PW1. Sh Sajjan Yadsav as an eye witness as PW2. The respondent No.3 has examined Sh Sandeep Kumar,Manager Legal as R3W1 in support of its case.
MACT no.179/2019 Mahesh Yadav & Ors. Vs. Kuldeep ors. Page 7 of 147. I have heard ld. Cousnel for the petitioner as well as Ld Counsel for the Insurance company. None has appeared on behalf of R.1 and R.2 to argue the case. I have given my thoughtful consideration to the submission made by them and I also perused the record. My issuewise findings are as under:
(i) (i) Whether Subodh Kumar sustained fatal injuries in a motor vehicle accident dated 28.12.2018 due to rash and negligent driving of vehicle No. HR 32 H0966 being driven by Respondent 1 Kuldeep owned by Respondent No.2 Shiv Kumar and insured by respondent No.3 Magma HDL General Insurance Company Ltd ? OPP.
8.During the course of argument a question has been raised before this Tribunal by Ld Counsel for the Insurance company that as per FIR ( DAR Ex PW1/2) the victim was sat on the bonnet of the offending tractor while Ld Counsel for petitioner submits that victim was sat on the mud guard and not on the bonnet of alleged offending tractor.
9.To arrive at a conclusion whether the victim was sat on the mud guard or bonnet of offending Tractor. The evidence has to be appreciated which has been brought on record. As per FIR which was registered on the statement of one Sajjan Yadav, which is also attached with the DAR, it reveals that he ( informer) sat on one side of the bonnet and victim was sat on other side of bonnet. During the evidence, a fact has been cleared in the cross examination of PW 2 ( informer) being conducted by the Insurance Company that he was sat on the mudguard. It is worth to mention here that there is distinguishable between mudguard and bonnet. The mudguard is the part of the tractor which cover the tyre while bonnet is the part of tractor which cover engine. The bonnet in simple language is head of the Tractor ( which cover the engine). Person can sat on the mudguard which situates on both side of driver seat. So it is clear that the victim was sat on the mudguard of the MACT no.179/2019 Mahesh Yadav & Ors. Vs. Kuldeep ors. Page 8 of 14 alleged offending vehicle.
10. In order to prove this issue, petitioners have examined PW 2 Sh Sajjan Yadav , an eye witness. He has deposed that on 28.12.2018, he alonwith the deceased had gone to Jonapuri Delhi for deloading Tuda ( husk ) from tractor bearing No. HR32H0966. The tractor was being driven by respondent No.1. He has deposed that when they were returning back from Jonapur, Delhi at about 05.00 A.M and reached in front of IP University, Sector16B, Dwarka N Delhi. And as deceased was sitting on the bonnet ( mudguard) side of the tractor,the tractor was being driven by respondent No.1 at high speed, despite the fact that there was speed breaker on the road. The respondent No.1 did not slow down the speed of tractor and as a result of which deceased fell down from the tractor and was crushed under rear tyre of tractor. He has deposed that injured was firstly taken to DDU Hospital Delhi. Thereafter, he was taken to Safdarjung Hospital, Delhi where he was declared as dead. He has deposed that the said accident took place due to rash and negligent driving of respondent No.1. The aforesaid witness has been duly crossexamined by respondent No.3 but the testimony of this witness could not be impeached. Moreover the proof of negligence, while disposing of a claim application under MACT, is not that strict as it is under Section 279/338/304A of IPC.
11. The fact that Subodh Kumar died in that accident is also supported by his postmortem report on the dead body of victim. Considering all the evidence as discussed above, it stands proved that accident in question was caused due to rash or negligent driving of offending vehicle by respondent No.1 thereby causing death of Subodh Kumar.
12. This issue is therefore decided in favour of the petitioners and against MACT no.179/2019 Mahesh Yadav & Ors. Vs. Kuldeep ors. Page 9 of 14 respondents by holding that victim Subodh Kumar died in a motor vehicle accident due to rash negligent driving by respondent no.1. ISSUE No.2: Whether the petitioner is entitled to compensation, if so, what amount and from whom? OPP.
13. The petitioner No.1 and 2 are the only LRs of deceased Subodh Kumar as father and mother, as such as were the only legal heirs of petitioner.
14. Now coming to the extent of compensation. According to the petitioners, at the time of accident, the deceased Subodh Kumar was working as labourer ( loading and deloading Tuda ( husk) and was earning Rs.17,000/ p.m. But no documentary evidence is being produced by the petitioner to substantiate the income of the deceased. No witness produced under whose employment the deceased was working. However,Ld Counsel for the petitioner has conceded to the fact that income of the deceased may be assessed as per Minimum Wages Act of a unskilled worker. So this Tribunal has assessed the monthly income of deceased as 14,000/ pm for computation of compensation as per Minimum Wages prevalent in Delhi at the time of accident.
15. Keeping in view the fact that the age of the deceased was 18 years old ( As per post mortem report) at the time of accident. As per the judgment in the case of National Insurance Company Limited Vs. Pranay Sethi and others of Hon'ble Supreme Court the net income of the deceased is to be counted after deduction of tax and adding future income to the salary of victim @ 40% p.m.
16. The deceased was Bachelor at the time of accident. So deceased spending 50% of his income on his personal expenses. Therefore the income for the purpose of loss of dependency has to be taken as Rs. 9800/ (14,000/ + 5,600/ 9800/) per month.
MACT no.179/2019 Mahesh Yadav & Ors. Vs. Kuldeep ors. Page 10 of 1417. To calculate loss of dependency, the multiplier has to be taken on the basis of age of deceased. A multiplier of 18 is thus taken in calculating loss of dependency. Counting in this way, loss of dependency comes to Rs. 21,16,800/ ( 9800/ x 12 x 18). This amount of Rs.21,16,800/ is allowed to petitioners for loss of dependency.
18. Apart from amount mentioned above, petitioner is also granted a sum of Rs.17,000/ for funeral expenses, Rs.17,000/ for loss of estate and Rs. 88,000/ for loss of consortium making a total sum of Rs. 22,38,800/ Detail of the whole award amount is: i. Loss of dependency Rs. 21,16,800/ ii. Funeral expenses Rs. 17,000/ iii. Loss of Estate Rs. 17,000/ v. Loss of consortium Rs. 88,000/-
Total Rs. 22,38,800/
19. Now coming to the extent of liability. It has already been held herein above that the deceased died due to rash and negligent driving of respondent no.1. He is primarily liable to make payment. However, the petitioners have made the respondent no.3 (insurance company) as one of the party seeking direction to respondent no.3 to pay the compensation and to indemnify the owner.
20. The question arises who will pay the compensation amount to the claimants. It is argued that deceased /victim was unauthorized person on the offending tractor. Hence insurance company is not liabel to pay compensation to the MACT no.179/2019 Mahesh Yadav & Ors. Vs. Kuldeep ors. Page 11 of 14 petitoners. The Ld Counsel for the Insurance Company has relied upon the judgment of Hon'ble Karnataka High Court in case titled as Gadilingappa @ Gadhilinga and Ors Vs K. Guleppa &Ors decided on 20 th April, 2021. On perusal of judgment of the Hon'ble High Court it is categorically cleared by the Hon'ble High Court in para 23 and 33 that a person travelling on the mudguard of the tractor is not reqired to be covered by the statutory insurance as contemplated under subsection (1) of Section 147 of the M.V Act. The Hon'ble High Court gave this observation after relied upon various judgment of Hon'ble Supreme Court.
21. Here in the present case, in the Registration certificate of offending vehicle it is clearly find mentioned that only one person is allowed on tractor who is driver only. The respondent No.1 and 2 have violted the terms of the insurance policy and in view of judgment of Hon'ble High Cour of Karnatka in case Gadilingappa @ Gadhilinga ( Supra), the insurance company is not liable to indemnify the owner of tractor. So in view of the above discussion, this issue is therefore decided in favour of the petitioners and against respondents by holding that petitioner is entitled for compensation from respondent no.1 and 2 jointly and severally. ISSUE NO.2 (RELIEF)
22. Petition in hands is allowed. Respondent no. 1 and 2 are directed to pay a sum of Rs. 22,38,800/ alongwith interest @ 7.5% to the petitioners as compensation in this case, within 30 days from today, from the date of filing of claim petition i.e. 26.02.2019 till the date of compliance i.e., 17.11.2023. Amount of interim compensation (if any) be deducted from this amount. The awarded amount shall remain as tax free in view of the judgment of Hon'ble High Court in case in R/Special Civil Application No.4800 of 2021 titled The Oriental Insurance Co Ltd Vs Chief Commissioner of Income Tax (TDS) decided on 05.04.2022.
MACT no.179/2019 Mahesh Yadav & Ors. Vs. Kuldeep ors. Page 12 of 14APPORTIONMENT
23. In view of the fact that petitioners are the only LRs of deceased, hence the compensation to the Petitioners be distributed as follows: S Name of Age Relation with Amount of Amount to be Amount kept Period of FDR Mode:-
N Petitioner/Claimant (yrs) Injured/ Award released in FDR Cash/ Deceased Cheque/D D
1. Mahesh Kumar 57 yrs Father Rs. 11,19,400/ Rs.1,11,940/ Rs.10,07,460/- Ten yearly FDRs RTGS (50% of awarded alongwith interest alongwith interest of equal amount amount) @ 7.5% from the @ 7.5% from the alongwith interest @ each for a period of date of filing of date of filing of 7.5% from the date of petition till the petition till the one year to ten filing of petition till date of compliance. date of the date of years with compliance.
compliance.
cumulative interest .
2. 53 years Mother Rs. 11,19,400/ Rs.1,11,940/ Rs.10,07,460/- Ten yearly FDRs Somiya Devi (50% of awarded alongwith interest alongwith interest of equal amount amount) @ 7.5% from the @ 7.5% from the alongwith interest @ each for a period of date of filing of date of filing of 7.5% from the date of petition till the petition till the one year to ten filing of petition till date of compliance. date of the date of years with compliance.
compliance.
cumulative interest .
TOTAL Rs. 22,38,800/- Rs.2,23,880/- Rs.20,14,920/-
24. The salient features as prescribed in the judgment in Rajesh Tyagi Vs. Ramesh Chandra Gupta FAO No. 842/2009 and MAC. App. No. 422/2009 decided on 07.11.2014 are to be applied:
(i) The fixed deposit be renewed automatically till the period prescribed by the Court.
(ii) The interest on the fixed deposit be paid monthly.
(iii) The monthly interest be credited automatically in the saving account of the claimant.
(iv) Original fixed deposit receipt be retained by the bank in safe custody.
However, the original passbook shall be given to the claimant along with the photocopy of the FDR.
(v) The original fixed deposit receipt be handed over to the claimant at the MACT no.179/2019 Mahesh Yadav & Ors. Vs. Kuldeep ors. Page 13 of 14 end of the fixed deposit period.
(vi) Photo identity card shall be issued to the claimant and the withdrawal shall be permitted only after due verification by the Bank of the identity card of the claimant.
(vii) No cheque book/ATM/debit card/credit card shall be issued to the claimant without permission of the Court.
(viii) No loan, advance or withdrawal or preencashment of FD amount shall be allowed on the fixed deposit without permission of the Court.
25. Respondent no.1 and 2 are directed to deposit jointly and severally the entire amount of compensation with this tribunal, within 30 days from today, with advance notice to petitioner.
File be consigned to record room.
ANNOUNCED IN THE OPEN (JAGDISH KUMAR )
COURT ON 18.10.2023 POMACT02,SOUTHWEST,
DWARKA, NEW DELHI
MACT no.179/2019 Mahesh Yadav & Ors. Vs. Kuldeep ors. Page 14 of 14