Delhi District Court
Hari Prakash Sharma And Ors vs Shiv Shankar And Ors on 16 May, 2024
Hari Prakash Sharma vs. Shiv Shankar MACT No. 497/21 Page 1 of35
IN THE COURT OF MS. SHAMA GUPTA, PRESIDING
OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNAL,
NORTH WEST DISTRICT, ROHINI COURTS, DELHI
MACT no. 497/21
UNIQUE ID No.: DLNW-01-010430-2021
LRs of Nitin Sharma:
1. Hari Prakash Sharma S/o Sh. Nivas Sharma
(father of deceased)
2. Ban Mala Sharma W/o Sh. Hari Prakash Sharma
(mother of deceased)
Both R/o H. No. D-12/94, Sector 7, Rohini, North West,
Delhi-110085.
3. Dipti Sharma W/o Sh. Nitin Sharma
(wife of the deceased)
4. Agamyaa D/o Sh. Nitin Sharma
(daughter of the deceased, represented
though natural guardian mother)
Both R/o 102, Devalachour Kham,
Manpur Paschim, Nainital, Manpur
Uttarakhand-263139
........ Petitioners/claimants
Vs.
1. Shiv Shankar S/o Sh. Meva Ram
R/o Rampura Ujhainiya Post Atanga
Chandpur, Pilibhit, Pilibhit UP-262001
...... Respondent no.1/R1
2. Mohit Babbar S/o Sh. Rakesh Babbar
R/o Ward 13, D-102, Adarsh Colony,
Rudrapur, Udham Singh Nagar,
Uttrakhand-263153. ...... Respondent no.1/R2
Hari Prakash Sharma vs. Shiv Shankar MACT No. 497/21 Page 2 of35
3. United India Insurance Company Ltd.
35 D Laxmi Niwas, Near LIC Divisional
Office Bareilly, UP-243001
Policy no. 0805023120P111671944
...... Respondent no.1/R3
DATE OF INSTITUTION : 23.12.2021
DATE OF RESERVING JUDGMENT : 04.04.2024
DATE OF PRONOUNCEMENT : 16.05.2024
FORM - V
1. COMPLIANCE OF THE PROVISIONS OF THE
MODIFIED CLAIMS TRIBUNAL AGREED
PROCEDURE TO BE MENTIONED IN THE AWARD
AS PER FORMAT REFERRED IN THE ORDER
PASSED BY THE HON'BLE DELHI HIGH COURT IN
FAO 842/2003 RAJESH TYAGI Vs. JAIBIR SINGH &
ORS. VIDE ORDER DATED 07.12.2018.
1. Date of the accident 21.09.2021
2. Date of intimation of the accident by the Petition was filed
investigating officer to the Claims
Tribunal
3. Date of intimation of the accident by the Petition was filed
investigating officer to the insurance
company.
4. Date of filing of Report under section Not available on
173 Cr.P.C. before the Metropolitan record
Magistrate
5. Date of filing of Detailed Accident Petition was filed
Information Report (DAR) by the
investigating Officer before Claims
Tribunal
Hari Prakash Sharma vs. Shiv Shankar MACT No. 497/21 Page 3 of35
6. Date of Service of DAR on the Petition was filed
Insurance Company
7. Date of service of DAR on the claimant Petition was filed
(s).
8. Whether DAR was complete in all Petition was filed
respects?
9. If not, whether deficiencies in the DAR Petition was filed
removed later on?
10. Whether the police has verified the Petition was filed
documents filed with DAR?
11. Whether there was any delay or Petition was filed
deficiency on the part of the
Investigating Officer? If so, whether
any action/direction warranted?
12. Date of appointment of the Designated Petition was filed
Officer by the insurance Company.
13. Name, address and contact number of Sh. V.K. Gupta,
the Designated Officer of the Insurance Ld. Counsel for
Company. the insurance
company
14. Whether the designated Officer of the No
Insurance Company submitted his
report within 30 days of the DAR?
(Clause 22)
15. Whether the insurance company No
admitted the liability? If so, whether the
Designated Officer of the insurance
company fairly computed the
compensation in accordance with law.
16. Whether there was any delay or No
deficiency on the part of the Designated
Officer of the Insurance Company? If
so, whether any action/direction
warranted?
17. Date of response of the claimant (s) to Legal offer not
the offer of the Insurance Company . filed
18. Date of the Award 16.05.2024
Hari Prakash Sharma vs. Shiv Shankar MACT No. 497/21 Page 4 of35
19. Whether the award was passed with the No
consent of the parties?
20. Whether the claimant(s) were directed Yes
to open saving bank account(s) near
their place of residence?
21. Date of order by which claimant(s) were 15.07.2023
directed to 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).
22. Date on which the claimant (s) 23.09.2023
produced the passbook of their saving
bank account near the place of their
residence along with the endorsement,
PAN Card and Aadhar Card?
23. Permanent Residential Address of the As mentioned
Claimant(s) above
24. Details of saving bank account(s) of the (1) Petitioners
claimant(s) and the address of the bank Hari Prakash
with IFSC Code Sharma, savings
A/c no.
42169633155,
(2) Petitioner Ban
Mala Sharma-
savings A/c no.
42169632016
(3) petitioner
Dipti Sharma-
savings A/c no.
42169119569
(4) Minor
Agamyaa-
savings A/c no.
42175542419 all
SBI, Rohini
Court Complex
Branch, IFSC
Hari Prakash Sharma vs. Shiv Shankar MACT No. 497/21 Page 5 of35
Code no.
SBIN0010323,
25. Whether the claimant(s) saving bank Yes
account(s) is near his place of
residence?
26. Whether the claimant(s) were examined Yes
at the time of passing of the award to
ascertain his/their financial condition.
27. Account number/CIF No, MICR 41065170303,
number, IFSC Code, name and branch 110002427,
of the bank of the Claims Tribunal in SBIN0010323,
which the award amount is to be SBI, Rohini
deposited/transferred. (in terms of order Courts, Delhi
dated 18.01.2018 of Hon'ble Delhi High
Court in FAO 842/2003 Rajesh Tyagi vs
Jaibir Singh.
JUDGMENT
1. The present claim petition under Section 166 and 140 of Motor Vehicle Act, 1988 (hereinafter referred to as M.V. Act) was filed on 23.12.2021, seeking compensation in the sum of Rs. 2,00,00,000/-, with interest, at the rate of 18% per annum, in respect of demise of Sh. Nitin Sharma, in a road traffic accident. A perusal of the court record reveals that FIR No. 0512/21, PS Haldwani, Nainital, was registered on 22.09.2021, for the commission of alleged offence of causing death, not amounting to culpable homicide, by rash and negligent driving of a motor vehicle, on a public road, punishable under Section 279/304A of The Indian Penal Code, 1860 (hereinafter referred as IPC). Subsequently, a final report under Section 173 of Code of Criminal Procedure, 1973 (herein afterwards referred as Cr.P.C) Hari Prakash Sharma vs. Shiv Shankar MACT No. 497/21 Page 6 of35 was filed against respondent no. 1 namely Shivam @ Shiv Shankar s/o Sh. Meva Ram (hereinafter referred as driver of the offending vehicle/respondent no. 1/R1), for the alleged commission of offence under Section 279/304A of IPC.
2. The brief facts of the case as discernible from the claim petition and documents of the legal heirs/legal representatives of the deceased (hereinafter referred as LR's of the deceased/petitioners/claimants) are that on 21.09.2021, at about 9:00 p.m, when the deceased Nitin Sharma, was going towards Sidharth City, via Rampur Road, Haldwani, with his friend, on his scooty bearing registration no. UK-04-N1246 (hereinafter referred as victim's vehicle), which was driven by the deceased Nitin Sharma, his scooty was hit by a truck bearing registration no. UK-06-CB-3081 (hereinafter referred as offending vehicle), in front of Nexa Showroom, from behind. It is further averred that the offending vehicle was driven by its driver/R1, in a rash and negligent manner and as a result of the said impact, both the victims, along with the scooty got crushed between the offending vehicle and a cemented pillar.
3. It is further averred that the deceased was removed to Government hospital, by the police and passerby, where he was declared brought dead and his PMR was conducted at Government Medical College and Sushila Tiwari Hospital, Haldwani (Nainital) Uttarakhand, vide PMR No 505/21 dated 22.09.2021, wherein cause of death of the deceased was Hari Prakash Sharma vs. Shiv Shankar MACT No. 497/21 Page 7 of35 mentioned as hemorrhagic shock, due to crush injuries over bilateral lower limbs.
4. It is further averred that at the time of accident, the deceased was 43 years old, was posted as Computer Science Teacher, in Aryaman Vikram Birla Institute of Learning (Uttarakhand) and earning Rs. 97,155/- per month.
5. Shivam @ Shiv Shankar/R1 and owner of the offending vehicle namely Mohit Babbar (hereinafter referred as respondent no. 2/R2), failed to appear and contest the case of the petitioners, by filing any written statement (herein afterwards referred as WS).
6. In the WS filed by the respondent no. 3/insurance company (hereinafter referred as R3), R3 admitted that at the time of accident, the offending vehicle was insured with R3, vide policy no. 0805023120P111671944, in the name of R2.
7. From the pleadings of the parties, following issues were framed by the Learned Predecessor Court, vide order dated 04.11.2022:-
(1) Whether deceased Nitin Sharma s/o Sh. Hari Prakash Sharma expired due to injuries suffered in road traffic accident on 21.09.2021 at about 9:00 P.M. in front of Nexa Show Room, Rampur Road, Haldwani, District Uttarakhand due to rash and negligent driving of offending vehicle i.e. Truck bearing no.
UK-06CB-3081 which was being driven by driver Shiv Shankar Hari Prakash Sharma vs. Shiv Shankar MACT No. 497/21 Page 8 of35 S/o Sh. Meva Ram on the said date, time and place?OPP (2). Whether the petitioners are entitled to compensation, if so, to what amount and from whom? OPP (3) Relief.
8. After framing of issues, opportunities were given to all the parties to prove their respective averments, by leading evidence in support of the same.
9. In support of their claim petition, the petitioner no. 1, namely Hari Prakash Sharma, got himself examined as PW1. He has led his evidence by way of affidavit Ex. PW1/A. PW1 deposed that his son/deceased met with an accident on 21.09.2021 and at that time, his son was 43 years old. He deposed that after the accident, the deceased was removed to Government hospital, by the police as well as passerby, where he was declared brought dead and post mortem on his body was conducted at Government Medical College and Sushila Tiwari Hospital Haldwani (Uttrakhand). PW1 further deposed that the deceased was posted as Computer Science Teacher, at Aryaman Vikram Birla Institute of Learning (Uttarakhand) and was earning Rs. 97,155/- per month. He further deposed that the deceased used to spend all his income on his family. He further deposed that the deceased was the sole bread earner in the family. PW1 further deposed that he has incurred Rs. 50,000/- on conveyance as well as on funeral and other religious ceremonies. PW1 deposed that the legal heirs of the deceased includes PW1(father), deceased's mother, wife and minor daughter. Hari Prakash Sharma vs. Shiv Shankar MACT No. 497/21 Page 9 of35
10. In his evidence, PW1 has placed reliance upon copy of death certificate of the deceased Ex. PW1/1 (OSR), Copy of driving license of the deceased Ex. PW1/2(OSR), Copy of salary slip of the deceased Ex. PW1/3, the exhibition of which, was objected to by Ld. Counsel for R3, on mode of proof therefore, the said document/salary slip was de-exhibited and marked as Mark X, Copy of Aadhar card of petitioner no. 1 Ex. PW1/4 (OSR), Copy of Aadhar card of petitioner no. 2 Ex. PW1/5 (OSR), Certified copy of FIR Ex. PW1/6, Certified copy of chargesheet U/s 173 Cr.P.C. Ex. PW1/7, Certified copy of postmortem report of the deceased Ex. PW1/8, Certified copy of site plan Ex. PW1/9, Certified copy of superdarinama Ex. PW1/10, Copy of Aadhar card of petitioner no. 3 and 4 as Mark A and B.
11. PW1 was duly cross-examined by Ld. Counsel for R3/ insurance company, wherein he admitted that he is not an eye witness of the case accident and he does not know any person by the name of Pawan Kumar. PW1 further deposed that at the time of accident, he was residing at Delhi and he had received information regarding the accident of his son, on 21.09.2021, at 10:00 p.m., through the neighbor of the deceased on telephone. PW1 denied the suggestion that his son had not died in the accident or that the offending vehicle has been roped by him, in connivance with the police, driver and owner of the vehicle. He denied the suggestion that the deceased was not employed and was not earning. PW1 denied the suggestion that he is a pensioner and deposed that his wife is a housemaker. He further Hari Prakash Sharma vs. Shiv Shankar MACT No. 497/21 Page 10 of35 deposed that he has not placed on record any document to show that his wife is a housemaker and handicapped. PW1 further denied the suggestion that he along with his wife were not financially dependent upon the deceased. He deposed that his son was born on 02.10.1977. He denied the suggestion that no amount was incurred by him on various heads, as mentioned by him in paragraph no. 6 of his affidavit. He deposed that all his children were residing separately at the time of accident. He deposed that all his children who are alive, are working and earning. He denied the suggestion that his three children, who are alive, are residing with him.
12. The petitioner has further examined the eye witness of the case accident as PW2, who has led his evidence by way of affidavit Ex. PW2/A. In proof of his identity, PW2 has placed on record his Aadhar card Ex. PW2/1. He deposed that on 21.09.2021, when he was going to his residence at Goraparaw Haripur Shivdutt, from his office at Manpur Pachim Haldawni, via Rampur Road, in his Maruti Swift Car, then at about 9:00 p.m., when he was in front of Nexa Show Room, he saw that two persons, who were travelling on a scooty bearing no. UK-04-N- 1246, were hit by a truck bearing registration no. UK-06-CB- 3081, from behind. He further deposed that the driver of the truck was driving the truck at a very high speed, rashly and negligently and as a result of the said impact, both the persons/victims, along with their scooty got crushed, between the said offending vehicle and a cemented pillar. He further deposed that after hitting the scooty, the said offending truck got turtle at the side of the road. Hari Prakash Sharma vs. Shiv Shankar MACT No. 497/21 Page 11 of35 He deposed that after the accident, one victim was removed to Government Hospital Haldwani, Nainital by him and other was removed by the police where, both the victims were declared brought dead. He deposed that the accident had occurred due to sole rash and negligent driving of the driver of the truck bearing no. UK-06-CB-3081. He deposed that his statement was recorded and FIR no. 0512/21, PS Haldwani, District Nainital, Uttarakhand was registered against the driver of the offending vehicle.
13. PW2 was also cross examined by Ld. Counsel for R3/insurance company, wherein he deposed that he is a summoned witness and he has appeared before the Court on receipt of telephone from the counsel of the petitioner. He deposed that he is in the business of sale and purchase of car, as an DSA from Mahindra Dealer, from Haldwani and about 9:00 p.m., on 21.09.2021, he was going from his office to his residence and when he reached near Nexa showroom, one truck came from behind, overtook his vehicle and hit one scooty, which was going ahead of him, from behind. He deposed that it was slightly raining at that time. He deposed that left portion of the truck struck against the right portion of the scooty. He denied the suggestion that the victims were not wearing helmets. He deposed that the rider of the scooty had died on the spot, while the pillion rider had sustained serious injury and due to darkness, he did not notice the injuries on the body of the deceased and pillion rider however, there were blood on the spot. He deposed that he was having mobile phone in working condition and he did Hari Prakash Sharma vs. Shiv Shankar MACT No. 497/21 Page 12 of35 not lodge complaint to the police from his mobile phone. He deposed that to save the life of pillion rider, he took him to Sushila Tiwari Hospital in his car and informed the incident to Transport Nagar Chowki and his statement was recorded by the police officials of Transport Nagar Chowki. He denied the suggestion that he was not an eye witness of the accident. He denied the suggestion that no accident took place by the offending vehicle or that the offending vehicle has been falsely implicated in collusion with the police, R1 and R2.
14. PW3 Sh. Sanjay Singh Bisht s/o Sh. G.S. Bisht, office Assistant, Aryaman Vikram Birla Institute of Learning, Raja Rani Vihar, Post office Anandpur, Haldwani, Uttrakhand, was a summoned witness, who had brought the original record pertaining to service record of Late Mr. Nitin Sharma. PW3 deposed that the deceased has been working as Computer teacher in the said institute from 01.04.2009 till the date of accident. He deposed that at the time of accident, the salary of the deceased was to the tune of Rs. 97,155/- per month. He has placed reliance upon his authority letter Ex. PW3/1 colly, acknowledgment of receiving of final payment, which includes gratuity, provident fund and left over deed Ex. PW3/2 (OSR), salary slip of the deceased Ex. PW3/3 colly., attendance sheet of the deceased from April 2021 to September 2021 Ex. PW3/4 colly. (OSR), details of provident fund, joining and nominee details Ex. PW3/6 colly.
15. PW3 was duly cross examined by Ld. Counsel for Hari Prakash Sharma vs. Shiv Shankar MACT No. 497/21 Page 13 of35 R3/insurance company, wherein he denied the suggestion that he has no personal knowledge about the record. He admitted that except the attendance sheet, all the records filed by him is computerized record and computer from which the said record has been brought, remains in the control of Vishal Kumar Saxena, Accountant. PW3 deposed that he has not brought certificate U/s 65 B of Indian Evidence Act in support of the computerized documents. He deposed that signature of the deceased are appearing on nomination and declaration form but, he has never seen the deceased writing and signing however, he again said that he saw the deceased writing and signing. He deposed that no appointment letter was given to the deceased and further payment of the deceased was made through bank transfer. He deposed that he has not brought any record regarding the payment to the deceased. He further deposed that no amount except mentioned in the full and final settlement, was given to LRs of the deceased after his death. He denied the suggestion that the deceased was not employed in Aryaman Vikram Birla Institute of Learning or that he was not earning any amount on the date of accident. He denied the suggestion that documents filed by him are false and fabricated.
16. PW3 was further cross examined before Ld. Local Commissioner, wherein PW3 has produced Form 16 of the deceased of the financial year 2021-22 and 2022-23 Ex. PW3/7 and Ex. PW3/8, Certificate U/s 65 B Indian Evidence Act Ex. PW3/9, issued by Sh. Inderjeet Singh Cheema, Principal, Attested true copy of statement of bank account of the deceased Hari Prakash Sharma vs. Shiv Shankar MACT No. 497/21 Page 14 of35 for the period 01.04.2021 to 26.03.2022 Ex. PW3/10.
17. The respondents failed to lead any evidence in their defence hence, the matter was listed for final arguments.
18. This Tribunal has heard the final arguments as advanced by Sh. Gaurav Sood, Learned counsel for the petitioners and Sh. V.K. Gupta, Learned counsel for R3. Ld. Counsel for the petitioners as well as Ld. Counsel for R3 has placed on record written submissions. None has appeared on behalf of R1 and R2 to address final arguments.
19. On appreciation of evidence as adduced by the parties, in support of their respective versions, the issue-wise findings of this Tribunal are reproduced herein below:
ISSUE No. 1Whether deceased Nitin Sharma s/o Sh. Hari Prakash Sharma expired due to injuries suffered in road traffic accident on 21.09.2021 at about 9:00 P.M. in front of Nexa Show Room, Rampur Road, Haldwani, District Uttarakhand due to rash and negligent driving of offending vehicle i.e. Truck bearing no.
UK-06CB-3081 which was being driven by driver Shiv Shankar S/o Sh. Meva Ram on the said date, time and place? OPP
20. The onus of proving this issue on preponderance of probabilities was upon the petitioners/claimants. For deciding the present issue, the testimony of PW2 Sh. Pawan Kumar is relevant, being an eyewitness. PW2 Sh. Pawan Kumar has proved his identity, by placing reliance on copy of his Aadhar Card Ex. Hari Prakash Sharma vs. Shiv Shankar MACT No. 497/21 Page 15 of35 PW2/1. PW2 deposed that on 21.09.2021, when he was going to his residence at Goraparaw Haripur Shivdutt, from his office at Manpur Pachim Haldawni, via Rampur Road, in his Maruti Swift Car, then at about 9:00 p.m., when he was in front of Nexa Show Room, he saw that two persons who were travelling on a scooty bearing no. UK-04N-1246, were hit by a truck bearing registration no. UK-06-CB-3081 from behind. He further deposed that driver of the truck was driving the truck at a very high speed, rashly and negligently and as a result of the said impact, both the persons/victims, along with their scooty got crushed, between the said offending vehicle and a cemented pillar. He further deposed that after hitting the scooty, the said offending truck got turtle at the side of the road. He deposed that after the accident, one victim was removed to Government Hospital Haldwani, Nainital, by him and other was removed to the Hospital by the police where, both the victims were declared brought dead. He deposed that the accident had occurred due to sole rash and negligent driving of the driver of the truck bearing no. UK-06-CB-3081. He deposed that his statement was recorded and FIR no. 0512/21, PS Haldwani, District Nainital, Uttarakhand was registered against the driver of the offending vehicle.
21. Both R1 and R2, who are driver and owner of the offending truck respectively, failed to contest the case of the petitioners, by filing any written statement. Thus, they both deemed to have admitted that the accident in question has taken place due to rash and negligent driving of the offending vehicle Hari Prakash Sharma vs. Shiv Shankar MACT No. 497/21 Page 16 of35 by R1. Even the insurance company/R3, failed to raise any statutory defence in their WS, so as to deny their liability. However, Ld. Counsel for R3 had cross-examined the eye witness and during the course of cross-examination of PW2, R3 had put questions to PW2, that the accident had not taken place due to rash and negligent driving of the offending vehicle by R1 and that PW2 was not an eye witness of the case accident, which PW2 denied. Ld. Counsel for R3 has asked PW2, as to why he has not made any call to the police, from the spot, though he was having a mobile phone in working condition, to which PW2 replied that though he was having a mobile phone but, he has not made any call to the police through his mobile phone, as after the accident, the passerby, who had gathered at the spot, were trying to call the police. He further deposed that in order to save the life of pillion rider, he had taken the pillion rider to Sushila Tiwari Hospital in his car and while taking him to the hospital, he had informed about the incident, at Transport Nagar Chowki. He further deposed that in the hospital, the police met him and on the next day, he was again called at PS Transport Nagar Chowki where his statement was recorded.
22. Since PW2 was reasonably able to explain, as to why he has not made any call to the police immediately and since his evidence also stands corroborated by the chargesheet, as per which, he was cited as an eye witness to the case accident, thus, it can be safely concluded that R3 failed to elicit any admission from the testimony of PW2, so as to impeach his credibility and to prove that he was not an eye witness of the case accident. The Hari Prakash Sharma vs. Shiv Shankar MACT No. 497/21 Page 17 of35 insurance company/R3 also failed to lead any evidence during the course of respondent's evidence, so as to prove that the accident has not taken place with the offending vehicle or there was no negligence on the part of the driver of the offending vehicle, in causing the alleged accident.
23. Mere putting suggestions do not prove the averments made by any party in the pleadings. Even otherwise also, as R1 failed to contest the case of the petitioners, therefore, he also deemed to have admitted that there was rashness and negligence on his part, in causing the accident.
24. Further, there is nothing on record which shows that the driver of the offending vehicle/R1 has ever approached to any higher authority, with respect to his false implication in the present case. The fact that the deceased Nitin Sharma suffered fatal injuries in the case accident, is also duly corroborated by the post mortem report of the deceased, as per which, the cause of death of the deceased was mentioned as hemorrhagic shock, due to crush injuries over bilateral lower limbs.
25. In view of above said discussion, criminal case record including charge sheet and testimony of PW2 Sh. Pawan Kumar, it has been duly proved by the petitioners, on preponderance of probabilities, that the case accident had been caused by R1, who was driving the offending truck bearing no. UK-06CB 3081, in a rash and negligent manner, at the above said date, time and place Hari Prakash Sharma vs. Shiv Shankar MACT No. 497/21 Page 18 of35 and had hit the victim's scooty, bearing no. UK-04N 1246, due to which, the victim Nitin Sharma had sustained fatal injuries.
Issue no.1 is decided in favour of petitioners and against the respondents accordingly.
ISSUE No. 2Whether petitioners are entitled to compensation, if so, to what amount and from whom?OPP
26. In view of the findings of this Tribunal, qua issue no.1 regarding negligence of R1, resulting in the occurrence of the case accident, this Tribunal is of the considered opinion that the petitioners/claimants are entitled to compensation on the account of fatal injuries, sustained by the deceased Nitin Sharma in the above mentioned road traffic accident. This Tribunal shall now examine the entire evidence including the documents of the petitioners/claimants, for the purpose of arriving at a finding about the quantum of compensation, to which the petitioners/claimants are entitled.
27. Section 168 of the Act enjoins the Claims Tribunal to hold an inquiry into the claim to make an award determining the amount of compensation, which appears to it to be just and reasonable. It has to be borne in mind that the compensation is not expected to be a windfall or a bonanza nor it should be niggardly.
Hari Prakash Sharma vs. Shiv Shankar MACT No. 497/21 Page 19 of35 LOSS OF DEPENDENCY
28. Sh. Hari Prakash Sharma, father of the deceased, examined himself as PW1, by way of evidence affidavit Ex.PW1/A. He deposed that the deceased left behind him as well as his mother, wife and a minor daughter, as his only LRs. PW1 further deposed that at the time of accident, the deceased was 43 years old and was posted as Computer Science teacher at Aryaman Vikram Birla Institute of Learning, Haldwani, Uttrakhand and was earning Rs.97,155/- per month. He further deposed that he has spent Rs. 50,000/- on conveyance and on funeral and other religious ceremonies. He has exhibited the photocopies of Aadhar card of all the petitioners as Ex.PW1/4 (petitioner no.1), Ex.PW1/5 (petitioner no.2), Mark-A (Petitioner no.3) and Mark B (petitioner no.4). He has further exhibited copy of pay slips of the deceased as Ex.PW1/3 but, it was de-exhibited and marked as Mark-X, in view of the objection raised by Ld. Counsel for R3, with regard to mode of proof.
29. Thus, for proving the income of the deceased, the petitioners got examined Sh. Sanjay Singh Bisht, Office Assistant, Aryaman Vikram Birla Institute of Learning as PW3, who deposed that he is a summoned witness and he has brought original service record of Late Nitin Sharma, who was working as Computer Teacher in the said institute. He deposed that the deceased was working as a computer teacher in the said institute from 01.04.2009 till the date of accident on 21.09.2021 and at the time of accident, the salary of the deceased was Rs. 97,155/- per Hari Prakash Sharma vs. Shiv Shankar MACT No. 497/21 Page 20 of35 month. He has exhibited the salary slip of the deceased as Ex.PW3/3 (Colly). He has further exhibited his authority letter Ex.PW3/1, acknowledgement of receiving full and final payment, which includes gratuity, provident fund and left over deed as Ex.PW3/2, the attendance sheet of the deceased from April 2021 to September 2021 Ex.PW3/4. The provident fund, joining and nominee details Ex.PW3/5 and provident and pension fund last claim details as Ex.PW3/6. He was cross-examined by Ld. Counsel for the insurance company/R3, wherein he admitted that except the attendance sheet, all the records produced by him are computerized record and the computer from which, the record has been taken remains in the control of Sh. Vishal Kumar Saxena, Accountant and that he has not brought certificate U/s 65B of the Indian Evidence Act but, during the course of his further cross-examination on 20.05.2023, he has produced certificate U/s 65B of Indian Evidence Act and he exhibited the same as Ex.PW3/9. He deposed that the said certificate has been issued by Sh. Inderjeet Singh Cheema, Principal of the said Institute and that he has not brought certificate U/s 65B of Indian Evidence Act of Sh. Vishal Kumar Saxena. He denied the suggestion that the Principal of the said institute is not authorized to issue certificate U/s 65B of India Evidence Act.
30. No question was put to PW3, by Ld. Counsel for R3, as to whether Sh. Inderjeet Singh Cheema was having control over the computerized record. Merely putting the suggestion that he was not authorized to issue certificate U/s 65B of Indian Evidence Act, is not sufficient, so as to discard the entire documents as Hari Prakash Sharma vs. Shiv Shankar MACT No. 497/21 Page 21 of35 produced by the concerned witness. In the said certificate Ex.PW3/9, Sh. Inderjeet Singh Cheema has certified that the computer from which data was taken, was being used in a routine manner, for the purpose of feeding similar category of information and nothing adverse has been brought to his notice, as to any error regarding the information so fed in the computer.
31. Apart from the computerized documents, PW2 has also produced attested true copy of statement of bank account of the deceased, as provided by the petitioners, to the Institute for the period 01.04.2021 to 26.03.2022 and he got it exhibited as Ex.PW3/10. PW2 was not being cross-examined by Ld. Counsel for R3 on Ex.PW3/10. He has also brought Form No. 16 of the deceased of the financial year 2021-2022, 2022-2023 and got it exhibited as Ex.PW3/7 and Ex.PW3/8 but, no objection was raised by Ld. Counsel for R3, qua the said document also.
32. The only suggestion that was put by Ld. Counsel for R3, is that the entire document as produced by PW3 are false and fabricated but, no endeavour has been made by the insurance company/R3, so as to prove that the documents as produced by R3 are false and fabricated. Perusal of the record reveals that the salary of the deceased, as shown in the salary slips Ex.PW3/3 (Colly), is the same salary, which got credited in the bank account of the deceased Ex.PW3/10. The said amount towards salary also stands corroborated by Form No. 16 of the deceased, as produced by PW3 and exhibited by him as Ex.PW3/7 and Ex.PW3/8. As per last salary slip of the deceased for the month Hari Prakash Sharma vs. Shiv Shankar MACT No. 497/21 Page 22 of35 of August 2021, his gross pay was Rs. 97,155/- and there was deduction of Rs. 8,873/- on account of tax. Thus, it would be reasonable and just to consider the income of the deceased as Rs. 88,282/- per month, on the date of occurrence of the case accident i.e. on 21.09.2021.
33. As per the evidence of PW1, the deceased was 43 years old at the time of accident and he has placed reliance on copy of driving license of the deceased as Ex.PW1/2, in which date of birth of deceased was mentioned as 02.10.1977. The date of accident in the present case is 21.09.2021. Thus, the age of the deceased is accepted as 43 years 11 months and 19 days, at the time of accident. Hence, the multiplier of 14 would be applicable in view of pronouncement made by Constitutional Bench of Apex Court in the case titled as "National Insurance Company Ltd. Vs. Pranay Sethi & Ors." passed in SLP(Civil) No. 25590/14 decided on 31.10.17.
34. Considering the age of the deceased at the time of accident, future prospects @ 25% has to be awarded in favour of petitioners, in view of pronouncement made by Constitutional Bench of Apex Court in the case titled as "National Insurance Company Ltd. Vs. Pranay Sethi & Ors." mentioned supra, as well as in view of decision of Hon'ble High Court of Delhi in appeal bearing MAC APP No. 798/2011 titled as "Bajaj Allianz General Insurance Company Ltd. Vs. Pooja & Ors", decided on 02.11.2017.
Hari Prakash Sharma vs. Shiv Shankar MACT No. 497/21 Page 23 of35
35. PW1 has deposed in his evidence by way of affidavit (Ex. PW1/A) that all the petitioners were totally dependent upon the deceased. During the course of cross-examination of PW1, Ld. Counsel for the insurance company/R3 has failed to elicit anything on record, which reflects that the petitioners were gainfully employed and not dependent upon the deceased. Therefore, all the four legal heirs of the deceased, at the time of accident, which includes his father, mother, wife and minor daughter are entitled to receive compensation, being dependent upon the deceased. In such circumstances, the deceased was likely to spare 1/4rd of his income for his personal and living expenses and to contribute the remaining 3/4th of his income towards household expenses/maintenance of his family members.
36. During the course of arguments as well as in the written arguments, it was contended by Ld. Counsel for R3, that father of the deceased was not financially dependent upon the deceased and cannot be taken as his LR. However, no evidence has been led by R3, as to why the father of deceased was not financially dependent upon the deceased. Thus, considering all the facts and circumstances, it is held that as on the date of accident, there were four dependents i.e. father, mother, wife and minor daughter of the deceased. Hence, there has to be deduction of one fourth as held in the case of Sarla Verma Vs. DTC 2009 ACJ 1298 SC. Thus, the total of loss of dependency would come out to Rs. 1,39,04,415/- (88,282 + 25% (22070.5) = 1,10,352.5 - 1/4th (27,588.12) = 82,764.375 x 12 x 14). Hence, a sum of Rs.1,39,04,415/- is awarded under this head in favour of the Hari Prakash Sharma vs. Shiv Shankar MACT No. 497/21 Page 24 of35 petitioners.
LOSS OF LOVE & AFFECTION
37. After the celebrated judgment of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors. mentioned supra and recent judgment titled New India Assurance Company Limited versus Somwati & Ors., Civil Appeal no. 3093 of 2020 dated 07.09.2020, the petitioners are not entitled to be compensated under this head. Further Hon'ble Delhi High Court in appeal titled as "Bajaj Allianz General Insurance Company Ltd. Vs. Pooja & Ors", mentioned supra has been pleased to observe in para 18 of the judgment that the constitution bench decision in Pranay Sethi (supra) does not recognize any other non pecuniary head of damages. Hence, no amount of compensation is being awarded under this head.
LOSS OF CONSORTIUM
38. In view of the judgment of Hon'ble Supreme Court in case titled as New India Assurance Company Limited versus Somwati & Ors., Civil Appeal no. 3093 of 2020, dated 07.09.2020, this Tribunal is of considered opinion that father, mother, wife and minor daughter of deceased are entitled for payment of Rs. 44,000/- each towards loss of consortium. Consequently, a sum of Rs. 1,76,000/- (Rs. 44,000/- X 4) is awarded to the petitioners under this head.
Hari Prakash Sharma vs. Shiv Shankar MACT No. 497/21 Page 25 of35 LOSS OF ESTATE & FUNERAL EXPENSES
39. In view of the facts and circumstances of the present case and in view of decision of Hon'ble Apex Court in the case of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors." mentioned supra, a sum of Rs. 16,500/ each towards loss of estate and funeral expenses is awarded in favour of petitioners.
40. Petitioners/claimants are accordingly entitled to compensation computed as under:
Loss of financial dependency Rs. 1,39,04,415/ -
Loss of Estate Rs. 16,500/-
Funeral Expenses Rs. 16,500/-
Loss of Consortium Rs. 1,76,000/-
Loss of Love and Affection Nil.
________________
Total Rs. 1,41,13,415/-
________________
(Rupees one crore Forty one lacs thirteen thousands four hundred and fifteen only).
41. In the written arguments, it was contended by Ld. Counsel for insurance company/R3 that the ex-gratia amount, as received by the petitioners from the office of the deceased or any other place, should be deducted from the compensation amount, by placing reliance upon the decision of Hon'ble Apex Court in Reliance General Insurance Company and Ors. Vs Shashi Sharma and Ors., 2016 ACJ 2723. However, reliance on the said decision is totally misplaced, as in the said judgment, the ex- gratia amount that was deducted from the final compensation, Hari Prakash Sharma vs. Shiv Shankar MACT No. 497/21 Page 26 of35 was the amount which the dependents / claimants have received from the employer of the deceased, on compassionate ground, after the death of deceased, for the loss of pay and other allowances, for a specified period. However, it was further observed that any amount received or receivable not only on account of accidental death but, which would have come to the claimant even otherwise, could not be construed to be a pecuniary advantage liable for deduction.
42. In the present matter, as per the document produced by PW3, i.e. acknowledgment of receiving of final payment, which includes gratuity, provident fund and left over deed Ex. PW3/2, the claimants have only received the amount towards gratuity, provident fund and left over deed and no amount was given to the claimants, on compassionate grounds, for a certain period, due to the accidental death of the deceased. The amount which was given to the claimants would have come to the claimants, even apart from the accidental death. Therefore, the same cannot be deducted from the amount, as awarded to the petitioners.
43. In respect of entitlement of the petitioners to interest on the awarded amount, it is noteworthy that the Hon'ble Apex Court had in the case of Municipal Corporation of Delhi vs. Association of Victims of Uphaar Tragedy, 2012 ACJ 48 (SC) had observed that the victims of Uphaar Tragedy be awarded compensation with interest @ 9% per annum. The present matter is pending trial since 23.12.2021 and the rate of interest of fixed deposits in Nationalized banks has fluctuated/dropped several Hari Prakash Sharma vs. Shiv Shankar MACT No. 497/21 Page 27 of35 times during the pendency of the present proceedings. Therefore, in the interest of justice, in the present case, this court is of the opinion that the claimants/petitioners are entitled to interest at the prevailing bank rate of 7% per annum from the date of filing of DAR/petition, that is, with effect from 23.12.2021 till realization of the compensation amount.
44. The amount of interim award, if any, shall however be deducted from the above amount, if the same has already been paid to the petitioners.
LIABILITY
45. In the case in hand, United India Insurance Company Ltd./R3 has no statutory defence and since the offending vehicle was duly insured with the insurance company/R3, hence R3 is liable to pay the entire compensation amount to the petitioners as per law.
46. Accordingly, in the case in hand, in terms of order dated 16.05.2017 of Hon'ble High Court by Hon'ble Mr. Justice J.R. Midha in case of Rajesh Tyagi Vs. Jaibir Singh and Ors., United India Insurance Company Limited/R3 is directed to deposit the awarded amount of Rs. 1,41,13,415/- , within 30 days from today within the jurisdiction of this Tribunal, that is, State Bank of India, Rohini Courts Branch, Delhi along with interest at the rate of 7% per annum from the date of filing of the petition Hari Prakash Sharma vs. Shiv Shankar MACT No. 497/21 Page 28 of35 till notice of deposition of the awarded amount to be given by R3 to the petitioners and his advocates and to show or deposit the receipt of the acknowledgement with the Nazir as per rules. R3 is further directed to deposit the awarded amount in the above said bank by means of cheque drawn in the name of above said bank along with the name of the claimants mentioned therein. The said bank is further directed to keep the said amount in fixed deposit in its own name till the claimants approach the bank for disbursement, so that the awarded amount starts earning interest from the date of clearance of the cheque.
APPORTIONMENT
47. Separate statement of petitioners in terms of clause 29 MCTAP was recorded on 23.09.2023 regarding savings bank account of the petitioners with no loan, cheque book and ATM/debit card. I have heard the petitioners and Ld. counsel for the petitioners/claimants regarding financial needs of the petitioners and in view of the judgment in the case of General Manager, Kerala State Road Transport Corporation Vs. Susamma Thomas and Others, 1994 (2) SC, 1631, for appropriate investments to safeguard the amount from being frittered away by the beneficiaries owing to their ignorance, illiteracy and being susceptible to exploitation, following arrangements are hereby ordered:-
48. It is deemed appropriate by this court after hearing Learned counsels for all parties that maximum amount of Hari Prakash Sharma vs. Shiv Shankar MACT No. 497/21 Page 29 of35 compensation be kept in FDRs and only a very small amount be released to the claimants. Keeping in view the facts and circumstances of the case, the statement made by the petitioners, it is hereby directed that on realization of the entire award amount, an amount of Rs. 25,00,000/- each is given to petitioner no. 1 Hari Prakash Sharma and petitioner no. 2 namely Ban Mala Sharma, out of said amount, an amount of Rs. 5,00,000/- be released to petitioner no. 1 Hari Prakash Sharma and petitioner no. 2 namely Ban Mala Sharma in their bank account no. savings A/c no. 42169633155 and savings A/c no. 42169632016 respectively, both at SBI, Rohini Court Complex Branch, Rohini Court, Delhi i.e. the branch near their place of residence (as mentioned in statement recorded under clause 29 MCTAP) and remaining amount be kept in the form of FDRs of equal amount for a period of one month to 60 months of equal amount respectively with cumulative interest without the facility of advance, loan and premature withdrawal without the prior permission of the Tribunal. It is further directed that an amount of Rs. 46,13,415/- is given to petitioner no. 3 Dipti Sharma and out of the said amount, an amount of Rs. 6,13,415/- be released to petitioner no. 3 Dipti Sharma in her savings A/c no. 42169119569 at SBI, Rohini Court Complex Branch, Rohini Court, Delhi (as mentioned in statement recorded under clause 29 MCTAP) and remaining amount be kept in the form of FDRs of equal amount for a period of one month to 100 months of equal amount respectively with cumulative interest without the facility of advance, loan and premature withdrawal without the prior permission of the Tribunal. It is further directed that an amount Hari Prakash Sharma vs. Shiv Shankar MACT No. 497/21 Page 30 of35 of Rs. 45,00,000/- is given to petitioner no. 4 Agamyaa in her savings A/c no. 42175542419 at SBI, Rohini Court Complex Branch, Rohini Court, Delhi and the said amount be kept in the form of FDR till the period she attains the age of majority.
49. It shall be subject to the following further conditions and directions in terms of order dated 07.12.2018 of Hon'ble Mr. Justice J.R. Midha in case of Rajesh Tyagi vs Jaibir Singh, FAO 842/2003 with respect to fixed deposits :-
(a) The bank shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the victim i.e. the saving bank account(s) of the claimant(s) shall be individual savings account(s) and not a joint account(s).
(b) The original fixed deposit shall be retained by the bank in safe custody. However, the statement containing FDR number, FDR amount, date of maturity and maturity amount shall be furnished by bank to the claimant(s).
(c) The monthly interest be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant/(s) near the place of their residence.
(d) The maturity amount of the FDR(s) be credited by Electronic Clearing System (ECS) in the saving bank account of the claimant(s) near the place of their residence i.e. above said a/c.
Hari Prakash Sharma vs. Shiv Shankar MACT No. 497/21 Page 31 of35
(e) No loan, advance or withdrawal or pre-mature discharge be allowed on the fixed deposits without permission of the court.
(f) The concerned Bank shall not to issue any cheque book and/or debit card to claimant(s). However, in case the debit card and/or cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount. The bank shall debit card(s) freeze the account of the claimant(s) so that no debit card be issued in respect of the account of the claimant(s) from any other branch of the bank.
(g) The bank shall make an endorsement on the passbook of the claimant(s) to the effect, that no cheque book and/or debit card have been issued and shall not be issued without the permission of the court and claimant(s) shall produce the passbook with the necessary endorsement before the court on the next date fixed for compliance.
(h) It is clarified that the endorsement made by the bank along with the duly signed and stamped by the bank official on the pass book(s) of the claimant(s) is sufficient compliance of clause (g) above.
RELIEF
50. As discussed above, United India Insurance Company Ltd./R3 is directed to deposit the award amount of Rs.1,41,13,415/- with interest @ 7% per annum from the date of filing of DAR/petition that is, 23.12.2021 till realization within Hari Prakash Sharma vs. Shiv Shankar MACT No. 497/21 Page 32 of35 the jurisdiction of this Tribunal, that is, SBI, Rohini Court Branch, Delhi within 30 days from today under intimation of deposition of the awarded amount to be given by R3 to the petitioners and his advocate failing which the R3 shall be liable to pay interest @ 9% per annum from the period of delay beyond 30 days.
51. R3 is also directed to place on record the proof of deposit of the award amount, proof of delivery of notice in respect of deposit of the award amount in the above said bank to the claimants and complete details in respect of calculations of interest etc. in the court within 30 days from today.
52. A copy of this judgment/award be sent to respondent no. 3 for compliance within the granted time.
53. Nazir is directed to place a report on record in the event of non-receipt/deposit of the compensation amount within the granted time.
54. In terms of directions contained in the order dated 07.12.2018 and subsequent order dated 22.02.2019 of Hon'ble Mr. Justice J.R. Midha in the case of Rajesh Tyagi and Ors vs Jaibir Singh and Ors., FAO 842/2003, the copy of the award be also sent by the Ahlmad of the court to Mr. Rajan Singh, Assistant General Manager, State Bank of India (as per the list of nodal officers of 21 banks of Indian Bank's Association as circulated to the Motor Accident Claims Tribunal vide above Hari Prakash Sharma vs. Shiv Shankar MACT No. 497/21 Page 33 of35 mentioned order dated 22.02.2019 of Hon'ble Delhi High Court) who is the Nodal Officer with contact details (022- 22741336/9414048606) {other details-Personal Banking Business Unit (LIMA) 13th Floor, State Bank Bhawan, Madame Cama Road, Nariman Point, Mumbai-400021} through email ([email protected]) through the computer branch of Rohini Courts, Delhi. Ahlmad of the court is directed to take immediate steps in that regard.
55. A copy of this award be forwarded to the concerned Metropolitan Magistrate and DLSA in terms of the orders passed by the Hon'ble High Court in FAO 842/2003 Rajesh Tyagi Vs. Jaibir Singh and Ors. vide order dated 12.12.2014.
In view of the directions contained in order dated 18.01.2018 of Hon'ble Mr. Justice J.R. Midha in FAO no. 842/2003 titled as Rajesh Tyagi vs Jaibir Singh, joint statement of petitioners was also recorded on 23.09.2023 wherein they had stated that they were entitled to exemption from deduction of TDS and that they would submit form 15G to insurance co. so that no TDS is deducted.
56. Form IVA which has been duly filled in has also been attached herewith. File be consigned to record room as per rules after compliance of necessary legal formalities. Copy of order be given to parties for necessary compliance as per rules.
Announced in open court (SHAMA GUPTA)
on 16th May, 2024 P.O. MACT (N/W)
Rohini Courts, Delhi
Hari Prakash Sharma vs. Shiv Shankar MACT No. 497/21 Page 34 of35
FORM - IV A
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN
DEATH CASES TO BE INCORPORATED IN THE AWARD
1. Date of accident : 21.09.2021
2. Name of deceased: Nitin Sharma
3. Age of the deceased: About 43 years 11 months and 19 days, at the time of accident.
4. Occupation of the deceased: Private Service (Computer Teacher)
5. Income of the deceased: Rs. 88,282/- p.m.
6. Name, age and relationship of legal representatives of deceased:
S.No. Name Age Relation
(i) Hari Prakash Sharma 74 Years Father
(ii) Ban Mala Sharma 70 Years Mother
(iii) Dipti Sharma 43 years Wife
(iv) Agamyaa Sharma 09 years Daughter
Computation of Compensation
S.No. Heads Awarded by the Claims
Tribunal
7. Income of the deceased (A) Rs. 88,282/-
8. Add-Future Prospects (B) 25% = Rs. 22,070.50/-
9. Less-Personal expenses of the 1/4
deceased (C )
10. Monthly loss of dependency Rs.1,10,352.5-
{ (A+B) - C =D}
27,588.12=82,764.375/-
11. Annual loss of dependency (Dx12) Rs. 82,764.375 x 12
=9,93,172.44
12. Multiplier (E) 14
13. Total loss of dependency (Dx12xE = Rs. 1,39,04,415/-
F)
14. Medical Expenses (G) Nil Hari Prakash Sharma vs. Shiv Shankar MACT No. 497/21 Page 35 of35
15. Compensation for loss of love and Nil affection (H)
16. Compensation for loss of Rs.1,76,000/- (44,000x4) consortium (I)
17. Compensation for loss of estate (J) Rs.16,500/-
18. Compensation towards funeral Rs.16,500/-
expenses (K)
19. TOTAL COMPENSATION Rs.1,41,13,415/-
(F+G+H+I+J+K =L)
20. RATE OF INTEREST AWARDED 7% 21 Interest amount up to the date of Rs. 23,68,309.44 award (M)
22. Total amount including interest Rs. 1,64,81,724.44 (rounded (L+M) off to Rs. 1,64,81,725/-)
23. Award amount released Rs. 16,13,415/-
24. Award amount kept in FDRs Rs. 1,48,68,310/-
25. Mode of disbursement of the award As per award and in terms of amount to the claimant (s) (Clause clause 29 of MCTAP.
29)
26. Next date for compliance of the 01.07.2024 award. (Clause 31) Announced in the open (Shama Gupta) Court on 16.05.2024 PO MACT/North West District Rohini Courts, Delhi.