Delhi District Court
Ms. Neeru Relia vs Mr. Subhash @ Bablu on 2 November, 2018
IN THE COURT OF SH. S.S. MALHOTRA:
PO:MACT-1 (NORTH): ROHINI: DELHI
MACT no. 6668/16
FIR No. 475/16
PS Mukherjee Nagar
1. Ms. Neeru Relia
2. Mr. Rajeev Relia
(parent of victim Aryan Relia)
Both R/o A-100, Derawal Nagar,
Model Town, Delhi.
.........Petitioners
VERSUS
1. Mr. Subhash @ Bablu
S/o Sh. Madan Lal
R/o H. No. 392, Gali No. 6,
Mongra Nagar, Khajuri Khas,
Delhi.
2. Mr. Rambir S/o Sh. Ram Charan
R/o A-146, Gandhi Vihar,
Delhi.
3. Mr. Gurmohan Singh S/o Sh. Bhupender Singh
R/o A-59/A, Krishna Park Ext.
Tilak Nagar, Delhi.
......Respondents
Neeru Relia & Ors. Vs. Subhash @ Bablu & Ors. Suit No. 6668/16 1/23
DATE OF INSTITUTION : 08.08.2016
JUDGMENT RESERVED ON : 31.10.2018
DATE OF AWARD : 02.11.2018
FINAL ORDER : AWARD OF
RS.9,19,000/-
FORM - IV A
1. Date of accident: 13.05.2016
2. Name of deceased: Aryan Relia
3. Age of the deceased: 15 years
4. Occupation of the deceased: Student
5. Income of the deceased: N/A
6. Name, age and relationship of legal representatives of deceased:
S.No. Name Age Relation
(i) Ms. Neeru Relia 44 years Mother
(ii) Mr. Rajeev Relia 47 years Father
Computation of Compensation
S.No. Heads Awarded by the Claims
Tribunal
7. Income of the deceased (A) Compensation is awarded as
per formula applied in
Chetan Malhotra Vs. Lala
Ram etc. MAC APP. No.
Neeru Relia & Ors. Vs. Subhash @ Bablu & Ors.
Suit No. 6668/16 2/23 554/2010 etc. i.e. 15000x A(1125)/331x15. Figure of Rs. 15,000/- represents the notional income, specified in Second Schedule 'A' represents CII for the financial year in which victim died, figure 331 represents the CII for the base year and figure 10 is multiplier. 8. Add-Future Prospects (B) As per above judgment 9. Less-Personal expenses of the N/A deceased (C ) 10. Monthly loss of dependency N/A { (A+B) - C =D} 11. Annual loss of dependency As per judgement in (Dx12) Chetan Malhotra Vs. Lala Ram etc. MAC APP. No. 554/2010 etc. 12. Multiplier (E) 15 13. Total loss of dependency Rs. 5,42,604.50 (Dx12xE = F) 14. Medical Expenses (G) N/A
15. Compensation for loss of love Rs. 10,85,209/- i.e. double and affection (H) of the total loss of
16. Compensation for loss of dependency As per consortium (I) judgement in Chetan Neeru Relia & Ors. Vs. Subhash @ Bablu & Ors. Suit No. 6668/16 3/23
17. Compensation for loss of Malhotra Vs. Lala Ram etc. estate (J) MAC APP. No. 554/2010 etc. with respect to all these three heads.
18. Compensation towards funeral N/A expenses (K)
19. TOTAL COMPENSATION Rs. 7,59,646.3 (F+G+H+I+J+K =L) (10,85,209/- minus 30%) in terms of para 10 of the award
20. RATE OF INTEREST AWARDED 9% 21 Interest amount up to the date Rs. 1,59,525.72 (for 28 of award (M) months from 08.08.2016 to 08.12.2018)
22. Total amount including interest 9,19,172 rounded off to (L+M) Rs. 9,19,000/-
23. Award amount released 10% in terms of modified direction of the Hon'ble High Court
24. Award amount kept in FDRs 90% as per direction of the Hon'ble High Court
25. Mode of disbursement of the In phased manner award amount to the claimant
(s) (Clause 29)
26. Next date for compliance of the 10.12.2018 award. (Clause 31) FORM - V Neeru Relia & Ors. Vs. Subhash @ Bablu & Ors. Suit No. 6668/16 4/23
AGREED PROCEXDURE TO BE MENTIONED IN THE AWARD
1. Date of the accident 13.05.2016
2. Date of intimation of the accident by the 08.08.2016 investigating officer to the Claims Tribunal (Clause 2)
3. Date of intimation of the accident by the Vehicle was investigating officer to the insurance uninsured company. (Clause 2)
4. Date of filing of Report under section 173 Not mentioned Cr.P.C. before the Metropolitan Magistrate (Clause 10)
5. Date of filing of Detailed Accident 08.08.2016 Information Report (DAR) by the investigating Officer before Claims Tribunal (Clause 10)
6. Date of Service of DAR on the Insurance Vehicle was Company (Clause 11) uninsured
7. Date of Service of DAR on the 08.08.2016 complainant(s) (Clause 11)
8. Whether DAR was complete in all No. respects? (Clause 16)
9. If not, whether deficiencies in the DAR Yes.
removed later on?
10. Whether the police has verified the No. documents filed with DAR? (Clause 4)
11. Whether there was any delay or Yes.
Neeru Relia & Ors. Vs. Subhash @ Bablu & Ors. Suit No. 6668/16 5/23
deficiency on the part of the Investigating Officer? If so, whether any action/direction warranted?
12. Date of appointment of the Designated Vehicle was Officer by the insurance Company. uninsured (Clause20)
13. Name, address and contact number of the Vehicle was Designated Officer of the Insurance uninsured Company. (Clause 20)
14. Whether the designated Officer of the Vehicle was Insurance Company submitted his report uninsured within 30 days of the DAR? (Clause 20)
15. Whether the insurance company admitted Vehicle was the liability? If so, whether the uninsured Designated Officer of the insurance company fairly computed the compensation in accordance with law.
(Clause 23)
16. Whether there was any delay or Vehicle was deficiency o the part of the Designated uninsured Officer of the Insurance Company? If so, whether any action/direction warranted?
17. Date of response of the claimant (s) to Vehicle was the offer of the Insurance Company . uninsured (Clause 24)
18. Date of the Award 02.11.2018
19. Whether the award was passed with the Parties contested consent of the parties? (Clause 22) the case Neeru Relia & Ors. Vs. Subhash @ Bablu & Ors. Suit No. 6668/16 6/23
20. Whether the claimant(s) were directed to Yes. open saving bank account(s) near their place of residence? (Clause 18)
21. Date of order by which claimant(s) were 04.06.2018 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). (Clause 18)
22. Date on which the claimant (s) produced 31.10.2018 the passbook 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 Both R/o A-100, Claimant(s) (Clause 27) Derawal Nagar, Model Town, Delhi.
24. Details of saving bank account(s) of the P-1, account no. claimant(s) and the address of the bank 6645658022 with IFSC Code (Clause 27) P-2 account no.
6688280990
both with Indian
Bank, Branch Kundli
IFSC 2642
25. Whether the claimant(s) saving bank Yes.
account(s) is near his place of residence? (Clause 27) Neeru Relia & Ors. Vs. Subhash @ Bablu & Ors. Suit No. 6668/16 7/23
26. Whether the claimant(s) were examined Yes. at the time of passing of the award.
AWARD
1. Vide this order I shall dispose of the "detailed Accident Report" (DAR) filed by the police with respect to road traffic accident occurred on 13.05.2016.
2. Brief facts of the case, as per DAR are that on victim was going to his school on a scooty (two wheeler) and at about 6.50 a.m. when he was in front of Batra Cinema, Signature Apptt. Mukherjee Nagar Delhi, an auto (TSR) bearing registration no. DL1RK 5065, which was being driven by its driver (respondent no. 1 ) in a rash and negligent manner, without following the traffic came from Mukherjee Nagar, Batra Cinema side and took a sharp turn towards road from Parmanand Chowk and hit the scooty of victim. Due to such forceful impact, the injured fell down and sustained grievous injuries. He was removed to Sushruta Trauma Centre for treatment. However, victim Neeru Relia & Ors. Vs. Subhash @ Bablu & Ors. Suit No. 6668/16 8/23
was declared "brought dead" by the doctors.
3. All the respondents i.e. Mr. Subhash (driver), Mr. Rambir (possessory owner) and Mr. Gurmohan Singh (registered owner) of the offending vehicle contested the case. In his written statement filed by respondent no. 1 (driver), he has taken the plea that accident has not been caused due to his negligence rather the victim hit his scooty against back side of his TSR and sustained injuries and he has been falsely implicated in this case. He further denied all other facts of accident. Respondent no. 2 in his written statement has taken the similar plea taken by respondent no. 1, however he admitted that vehicle was not insured. He has further taken the plea that he purchased the said vehicle from respondent no. 3, however requisite documents were not given by respondent no. 3 to him and therefore the vehicle could not be transferred in his name and the registered owner of the offending vehicle is still registered in the name of respondent no. 3 and therefore respondent no. 3 is liable to pay Neeru Relia & Ors. Vs. Subhash @ Bablu & Ors. Suit No. 6668/16 9/23
compensation to the petitioners. Respondent no. 3 in his written statement has taken the preliminary objection inter alia on the ground that the offending vehicle was sold by him to respondent no. 2 and neither the respondent no. 1 nor the offending vehicle was within his control on the day of accident and he is not liable to pay compensation. He himself admitted in his WS that vehicle could not be transferred in the name of respondent no. 2 due to discontinuation of process of transfer certificate and further he denied his liability to pay compensation to the petitioner.
4. From the pleadings of the parties, following issues were framed vide order dated 08.09.2016: -
1. Whether victim Aryan S/o Sh. Rajeev Relia died in a vehicular accident on 13.05.16 at 6.50 a.m. in front of Batra Cinema, Signature Apptt., Mukherjee Nagar, Delhi due to rash and negligent driving of vehicle (TSR) no. DL1RK-5065 by respondent no. 1 (Subhash) OPP.
Neeru Relia & Ors. Vs. Subhash @ Bablu & Ors. Suit No. 6668/16 10/23
2. Whether petitioners are LRs of deceased (Aryan) or entitled to compensation. If yes, what amount and from whom of respondents? OPP
3. Relief.
5. In order to prove the claim, petitioner Mr. Rajiv Relia (father of victim), has filed his affidavit Ex. PW1/A in evidence and examined himself as PW1 and relied upon the documents Ex. PW1/1 to Ex. PW1/7. Mr. Sanjay Bajaj, stated to be eye-witness of accident has also been examined as PW2. Respondent no. 1 examined himself as R1W1, respondent no. 2 examined himself as R2W1 and respondent no. 3 examined himself as R3W1, he also examined one Mr. Atul Vadera as R3W2.
I have heard ld. counsels appearing on behalf of parties and gone through the record.
My issues wise findings are as under: -
ISSUE NO. 1
Neeru Relia & Ors. Vs. Subhash @ Bablu & Ors. Suit No. 6668/16 11/23
Whether victim Aryan S/o Sh. Rajeev Relia died in a vehicular accident on 13.05.16 at 6.50 a.m. in front of Batra Cinema, Signature Apptt., Mukherjee Nagar, Delhi due to rash and negligent driving of vehicle (TSR) no. DL1RK-5065 by respondent no. 1 (Subhash) OPP.
6. Onus to prove this issue was upon the petitioners. To prove that victim suffered fatal injuries and such injuries was caused upon him on account of rash and negligent driving by respondent no. 1, father of deceased (PW1) filed his affidavit (Ex. PW1/A) in evidence and reiterated the facts of the DAR. PW2, stated to be eye-witness has also been examined. In his testimony he deposed that o n 13.05.2016 he was going for morning walk at about 7 a.m. He saw one auto was coming from wrong side which hit a child who was driving a scooty. He further deposed that he does not remember the number of scotty but it was of white colour. Public persons were gathered there and that child was taken to hospital. The accident was caused due to the negligence of Neeru Relia & Ors. Vs. Subhash @ Bablu & Ors. Suit No. 6668/16 12/23
auto driver. His statement was also recorded by the police regarding the accident.
7. In his cross examination by Ld. Counsel for respondent no. 1 no suggestion was put to him regarding the manner in which the accident had occurred. In his cross examination by Ld. Counsel for respondent no. 2 he denied the suggestion that he is not eyewitness of accident or that he had not seen the accident or that he has been deliberately made eyewitness of this accident by the petitioners. In his cross examination by Ld. Counsel of respondent no. 3 he denied the suggestion that accident had occurred as the victim was coming from wrong side or that he could not see the accident or that accident had not occurred in his presence. He further denied the suggestion that accident had already been occurred when he reached there. From all such facts, cross of PW1 and PW2 accordingly stands proved. Nothing material has come on record to disbelieve testimony PW2. No suggestion was given to PW1, in her cross examination by Ld. Counsel for respondents, regarding the manner in which the accident took place and particularly on the aspect that the Neeru Relia & Ors. Vs. Subhash @ Bablu & Ors. Suit No. 6668/16 13/23
victim struck against the TSR from back side. Respondent no. 1 though examined himself but he has failed to prove that he was not rash and negligent and accident was not caused by him or that accident had occurred due to negligence on the part of victim itself. Record of criminal case FIR no. 475/16 IPC PS Mukherjee Nagar shows that respondent no. 1 was indicted by police for offences punishable under Section 279/304A IPC. There is nothing on record to show that respondent no. 1 approached to any higher authority or any forum against his implication in this case. Apart from deposition of PWs, the fact that victim suffered fatal injuries in the accident is also supported from postmortem report of deceased etc. Considering all this, it stands proved that accident in question occurred due to rash or negligence driving of offending vehicle by respondent no. 1 and victim died in that accident. As far as contributory negligence is concerned, or the fact that the victim himself was driving the vehicle without holding valid D/L would be Neeru Relia & Ors. Vs. Subhash @ Bablu & Ors. Suit No. 6668/16 14/23
discussed herein below while discussing the extent of contributory. This issue is accordingly decided in favour of petitioner and against the respondent.
ISSUE NO. 2
Whether petitioners are LRs of deceased (Aryan) or entitled to compensation. If yes, what amount and from whom of respondents? OPP
8. It is not disputed that petitioners are parents of victim , therefore being LR of deceased, petitioners, who are father and mother of the victim are well within their rights / entitled to claim compensation from the respondent.
Now coming to the quantum of compensation
9. The victim in this case was a student and aged about 15 years at the time of accident and therefore compensation is to be awarded in this case in terms of judgment in Chetan Malhotra Vs. Lala Ram etc. MAC APP. No. 554/2010 etc. decided on 13.05.2016, I have Neeru Relia & Ors. Vs. Subhash @ Bablu & Ors. Suit No. 6668/16 15/23
heard the arguments and gone through the record and perused the above said judgment.
10. Being a student and child of 15 years, victim had no earning of his own. Schedule II annexed with Section 163-A of the Motor Vehicle's Act provides for notional income of such person, as Rs. 15,000/- p.a. It is observed by the Hon'ble High Court that due to lapse of lot of time, this provision has become inadequate and accordingly, the High Court of Delhi speaking through Hon'ble Mr. Justice R.K. Gauba while disposing of 16 appeals through a single judgment titled as Chetan Malhotra Vs. Lala Ram etc. MAC APP. No. 554/2010 etc. decided on 13.05.2016, envisaged a formula called as "inflation correction method", taking financial year of 1997-98 as base year and same is Rs. 15,000 x A / 331. Figure of Rs.15,000/- represents the notional income, specified in Second Schedule 'A' "represents CII for the financial year in which victim died and figure 331 represents the CII for the base year. Accident in question occurred on 13.05.2016, Neeru Relia & Ors. Vs. Subhash @ Bablu & Ors. Suit No. 6668/16 16/23
when victim died. CII for the financial year 2016-2017 is Rs. 1125/-. The Apex Court in case of R. K. Malik Vs. Kiran Pal (2009) 14 SCC (1) devided child victims in three categories, the first being those, who were less than ten years of age. Second category being of children more than 10 years and upto 15 years, and in third category there are children more than 15 years of age but not having attained age of majority. The High Court of Delhi in Chetan Malhotra's case (Supra) mandated to apply multiplier of 15 for children (victims) more than 10 years of age not having attained age of majority. Victim being about 15 years of of age, a multiplier of 15 is taken. Counting in this way, loss of estate comes to Rs. P 8,13,906.75 (15000x1125/331x15). After deducting 1/3rd, the pecuniary loss to estate comes to Rs. 5,42,604.50p. An equal amount is added to it for composite non-pecuniary damages including future prospects, making a total sum of Rs. 10,85,209p.
11. However, during the arguments it is argued that admittedly victim Neeru Relia & Ors. Vs. Subhash @ Bablu & Ors. Suit No. 6668/16 17/23
was driving the scooty having no DL being minor and therefore contributory negligence on account of violation be attributed on his part as well. The contention of Ld. Counsel for respondents to that extent is well found as IO has also made a kalandra under Section 4/180 of M.V. Act agaisnt the father of victim. Accordingly, keeping in view the facts and circumstances the, 30% negligence is attributed on the part of victim himself and as per documents available on record, a compensation of Rs. 9,19,000/- (10,85,209 - 30% (325562.7) = 7,59,646.30 plus 28 months interest @ 9% per annum from the date filing claim petition i.e. from 08.08.2016 to 08.12.2018), is awarded to the petitioners, details of which are mentioned in the above proforma, Now coming to the aspect which of the respondent is laible to pay compensation to the petitionrs
12. Since it has come on record that vehicle was not insured at the time of accident and admittedly as per registration certificate of the Neeru Relia & Ors. Vs. Subhash @ Bablu & Ors. Suit No. 6668/16 18/23
offending vehicle, the registered owner of the vehicle is respondent no. 3 (Mr. Gurmohan Singh), therefore keeping in view judgment in Naveen Kumar Vs. Vijay Kumar and Ors. Civil Appeal No. 1427 of 2018 (arising out of SLP © No. 18943 of 2016) decided on February 6, 2018 wherein it was held as under: -
"The person whose name is reflected in the records of the registering authority is the owner, the owner within the meaning of Section 2(30) is liable to compensate. The mandate of the law must be fulfilled".
It is held that the registered owner and driver of the offending vehicle are jointly and severally liable to pay the compensation to the petitioner.
This issue is also therefore decided in favour of petitioners and against the respondents holding the respondents no. 1 and 3 being driver and registered owner of the offending vehicle are jointly and severally liable to pay compensation to the petitioners.. Neeru Relia & Ors. Vs. Subhash @ Bablu & Ors. Suit No. 6668/16 19/23
ISSUE NO. 3 (RELIEF)
13. Petition is allowed. Respondents no. 1 and 3 are directed to pay Rs. 9,19,000/- which includes 28 months interest @ 9% per annum to the petitioners, as compensation in this case, within 30 days from today, failing which, respondents no. 1 and 3 will be liable to pay further interest @ 9% per annum on the amount of Rs. 759646.3 from 08.12.2018, till realization of amount apart from awarded amount of Rs. 9,19,000/-. Interim award amount, if any be deducted from this amount.
14. Further petitioners have got their bank account opened in terms of modified direction of Hon'ble High Court and filed photocopy of their passbook of such account. Considering circumstances of petitioners, it is directed that awarded amount be divided equally to both the petitioners and out of the total amount of compensation coming to their share, 90% amount be kept in FDRs to be released to them in a phased i.e. Rs. 7500/- monthly directly crediting in their account and Neeru Relia & Ors. Vs. Subhash @ Bablu & Ors. Suit No. 6668/16 20/23
remaining 10% amount be released to them through their saving bank account, details of which are mentioned in the above proforma, with further direction that this amount will be withdrawn only by way of withdrawal slip and by no other mode or any digital mode i.e. Debit card / Credit card /ATM/NEFT/RTGS/letter etc.
15. 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: -
1. The fixed deposit be renewed automatically till the period prescribed by the Court.
2. The interest on the fixed deposit be paid monthly.
3. The monthly interest be credited automatically in the saving account of the claimant.
4. 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.
5. The original fixed deposit receipt be handed over to the claimant at the end of the fixed deposit period.
Neeru Relia & Ors. Vs. Subhash @ Bablu & Ors. Suit No. 6668/16 21/23
6. 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.
7. No cheque book and debit / credit card shall be issued to the claimant without permission of the Court.
8. No loan, advance or premature withdrawal or premature encashment shall be allowed on the fixed deposit without permission of the Court.
9. The amount would be directly credited in the bank account of the petitioner, without any necessity of visiting her to court, where FDRs are kept.
10. The bank of the petitioner would make necessary endorsement on the passbook of the petitioner and in its own record as "MACT case" and amount to be disbursed only in terms of the order of the court.
11. Bank manager concerned to inform the court in writing prior to releasing of any amount to the petitioner, to the effect that compliance of the order of the Hon'ble High Court has been made with respect to disbursement. In no case, amount of award can be released without filing a compliance report in the court and the amount, which the respective petitioner would be withdrawing Neeru Relia & Ors. Vs. Subhash @ Bablu & Ors. Suit No. 6668/16 22/23
can only be allowed through withdrawal slip and by no other mode or any digital mode i.e. Debit card / Credit card /ATM/NEFT/RTGS/letter etc. Respondent no. 1 and 3 is directed to deposit entire amount of compensation with this tribunal within 30 days, with advance notice to petitioner. Digitally signed by SUKHVIR SUKHVIR SINGH MALHOTRA File be consigned to record room. SINGH MALHOTRA Date:
2018.11.02 15:40:51 +0530 ANNOUNCED IN THE OPEN (S.S. MALHOTRA) COURT ON 02.11.2018 PO,MACT-NORTH,ROHINIDELHI Neeru Relia & Ors. Vs. Subhash @ Bablu & Ors. Suit No. 6668/16 23/23