Delhi District Court
Smt. Bharti W/O Late Sh. Brahm Prakash vs Sh. Swaroop Singh on 19 November, 2016
IN THE COURT OF MS. SANTOSH SNEHI MANN,
JUDGE, MOTOR ACCIDENT CLAIMS TRIBUNAL02, WEST DISTRICT,
TIS HAZARI COURTS, DELHI
Petition No.: 76891/2016
1. Smt. Bharti W/o Late Sh. Brahm Prakash
(Wife of the deceased)
2. Baby Nandika S/o Late Sh. Brahm Prakash
(Daughter of the deceased)
3. Master Chirag S/o Late Sh. Brahm Prakash
(Son of the deceased)
(Petitioners No. 2 & 3 are minor through their mother
and natural guardian Smt. Bharti, Petitioner No. 1)
All are R/o: H. No. 754, NBlock,
Mangol Puri, Delhi.
Also at :
H. No. 805, Gali No. 5, Adarsh Nagar,
Near Old Power House Rewari, Haryana - 123401. .......... Petitioners.
Versus
1. Sh. Swaroop Singh
S/o Sh. Bhagirath
R/o Vill. Kankri, PO Didwin,
Tehsil & District Hamirpur, Himachal Pradesh.
(Driver)
2. Sh. Rajesh Kumar
S/o Sh. Ishwar Dass
R/o H. No. 69, Teeka Bassi,
Tehsil - Bhoranj, District Hamirpur, Himachal Pradesh.
(Owner)
3. Magma HDI General Insurance Company Limited
Magma House No. 8, Sant Nagar,
East of Kailash, New Delhi65.
(Policy No. P0015100002/4193/106532
valid from 04.06.2014 to 03.06.2015)
(Insurer) ....... Respondents.
Date of Institution : 23.12.2014.
Arguments heard on : 15.11.2016.
Judgment pronounced on : 19.11.2016.
Petition No.: 76891/2016 Page No. 1 of 17
AWARD
1. This is a claim petition under Section 166 & 140 of the Motor Vehicles Act, 1988 (M. V. Act) filed by the wife and minor children of the deceased Brahm Prakash, who died in a vehicular accident on 24.11.2014 with respect to which FIR No. 890/2014 under Section 279/304A IPC was registered at Police Station Mianwali Nagar and chargesheet has been filed under Section 279/304A IPC against Swaroop Singh (Respondent No.
1), driver of the offending vehicle.
2. Detailed Information Report (DAR) has been filed by the Investigating Officer (IO) along with copies of the criminal proceedings including FIR and chargesheet.
3. Brief facts of the vehicular accident as averred in the Claim Petition and DAR are that on 24.11.2014 at about 10.50 PM at Railway over bridge, Outer Ring Road from Peeragarhi to Mangolpuri, Mianwali Nagar, Delhi, deceased Brahm Prakash was going on motorcycle bearing Regn. No. DL 4SAU4033, which was hit from behind by a Truck bearing Regn. No. HP 19B2677(offending vehicle). Consequently, he suffered grievous injuries and died during treatment on 25.11.2014. Allegedly, the offending vehicle was driven by Swaroop Singh(Respondent no. 1) in a rash and negligent manner. Sh. Rajesh Kumar (Respondent No. 2) is the registered owner of the offending vehicle which was insured with Magma HDI General Insurance Company Limited (Respondent no. 3).
4. In the joint written statement filed by Respondents no. 1 & 2, it is admitted that Respondent no. 2 is the registered owner of the vehicle which was driven by Respondent no. 1 at the time of accident. It is claimed that the accident took place due to negligence of the deceased himself who while overtaking the truck from wrong side lost control & fell and then was hit by a car which came from behind. It is averred that the car fled away and the Respondent no. 1 has been falsely implicated.
5. In the written statement filed by the respondent No. 3/Insurance Co., it is Petition No.: 76891/2016 Page No. 2 of 17 admitted that the offending vehicle ie., Truck bearing Regn. No. HP19B 2677 was insured vide Policy No. P0015100002/4193/106532 valid from 04.06.2014 to 03.06.2015, including the date of accident. Though, no statutory defence has been taken, it is claimed that the Insurance Co. shall not be liable in case of breach of policy condition by the driver and owner of the offending vehicle.
6. From the pleadings of the parties, contentions raised and material on record, the following issues were framed by the Ld. Predecessor vide order dated 27.03.2015 :
1. Whether the deceased Sh. Brahm Prakash suffered fatal injuries in an accident that took place on 24.11.2014 at about 10.50 PM involving Truck bearing Regn. No. HP19B 2677 driven by Respondent no. 1, owned by Respondent No. 2 and insured with respondent no. 3/Insurance Company? OPP
2. Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
3. Relief.
7. PW1 Smt. Bharti, wife of the deceased (petitioner no. 1) has deposed on affidavit (Ex. PW1/A) and filed copy of death certificate of the deceased as Ex. PW1/1, copies of certificates of educational qualification of the deceased collectively as Ex. PW1/2, copy of driving licence of the deceased as Ex. PW1/3, copy of Voter Icard of the deceased as Ex. PW1/4, copy of her own Voter Icard as Ex. PW1/5, copy of birth certificate of petitioner no. 2 as Ex. PW1/6, copy of school ID Card of petitioner no. 2 as Ex. PW1/7, copies of school fee receipts are collectively as Ex. PW1/8, copy of birth certificate of petitioner no. 3 as Ex. PW1/9, copy of school ID Card of petitioner no. 3 as Ex. PW1/10 and copy of National Food Security Card as Ex. PW1/11.
PW2 Sh. Ravi Kumar is eye witness who has deposed on affidavit Ex. PW2/A and filed copy of his Aadhar Card as PW2/1.
PW3 Sh. Raj Kumar is the Proprietor of Ashutosh Medicos who has filed Petition No.: 76891/2016 Page No. 3 of 17 attested pay bills of his employees (from April, 2013 to March, 2015) collectively as Ex. PW3/1 and attested copy of attendance register of employees (from January, 2014 to November, 2015) collectively as Ex. PW3/2.
8. No witness has been examined by any of the Respondents despite being given opportunity.
9. I have heard Sh. Upender Singh, Counsel for the petitioners and Sh. M. Awasthi, Counsel for respondent no. 3/Insurance Co. None appeared on behalf of Respondents no. 1 and 2 to address arguments. I have carefully perused the record.
10. My findings on the issues are as under:
Issue No. 1:
1. Whether the deceased Sh. Brahm Prakash suffered fatal injuries in an accident that took place on 24.11.2014 at about 10.50 PM involving Truck bearing Regn. No. HP19B2677 driven by Respondent no. 1, owned by Respondent No. 2 and insured with respondent no. 3/Insurance Company?
OPP
11. In a claim petition filed by LRs of the deceased for compensation under Section 166 of the M. V. Act, onus is on the petitioners to prove that the deceased suffered fatal injuries in a vehicular accident caused by the wrongful act or negligence of the driver of the offending vehicle.
12. PW2 Sh. Ravi Kumar is an eye witness who has deposed on affidavit Ex. PW2/A that on 24.11.2014 at about 10.15 PM he was returning home to Mangol Puri from factory at Rama Road on his motorcycle via Peeragarhi Chowk. At about 10.45 PM, when he reached at Railway over bridge, Outer Ring Road, Peeragarhi to Mangolpuri, Mianwali Nagar, Delhi, he saw a truck bearing Regn. No. HP19B2677, coming at a very fast speed, driven by its driver in a rash and negligent & zigzag manner, which hit on the back side of motorcycle bearing Regn. No. DL4SAU4033, due to which motorcyclist fell on the road and suffered grievous injuries. Witness has Petition No.: 76891/2016 Page No. 4 of 17 deposed that injured was taken to Sanjay Gandhi Memorial hospital by the driver of a Maruti van, where he succumbed to injuries.
13. In cross examination by the Counsel for Respondent no. 3/Insurance Co., PW2 stated that he is a summoned witness and that the deceased and his family members were not known to him. Though the witness stated that he cannot exactly tell the distance between the motorcycle of the deceased and his motorcycle, but stated that offending truck came later after he saw the motorcycle of the deceased which was going on his left side. Witness stated that there was a divider on the road and that the front left side of the offending truck had hit the rear side of the motorcycle of the deceased. He stated that he remained at the spot for about 10 minutes till the deceased was taken to the hospital. He further stated that he did not accompany the deceased to the hospital and that police did not reach the spot in his presence. He denied the suggestion that he had not seen the accident. Respondent no. 1 adopted the crossexamination conducted by the Counsel for Respondent no. 3/Insurance Co. and there is no cross examination by the Respondent no. 2/owner of the offending vehicle.
14. It is a settled legal position that while deciding a petition under Section 166 of the M. V. Act, the Claims Tribunal has to decide negligence on the touch stone of preponderance of probabilities. Reference in this regard is made to the observations of the Hon'ble Supreme Court of India in Kaushnumma Begum and Others v/s New India Assurance Company Limited, 2001 ACJ 421 SC, wherein it was held that the issue of wrongful act or omission on the part of the driver of motor vehicle involved in the accident is of secondary importance and mere use or involvement of motor vehicle in causing bodily injuries or death to a human being or damage to property would make the petition maintainable under Section 166 & 140 of the M. V. Act.
15. Nevertheless, it is also a settled legal position that in a claim petition under Section 166 of the M. V. Act, burden is on the claimants/petitioners to prove Petition No.: 76891/2016 Page No. 5 of 17 negligence. The law to this effect declared in Minu B Mehta Vs. Balkrishna Ramchandra Nayan (1977) 2 SC 441 was reiterated by the Supreme Court in Oriental Insurance Company Limited Vs. Meena Variyal 2007 (5) SCC 428, which has been followed by Hon'ble High Court of Delhi in a recent case, New India Assurance Co. Ltd. Vs. Devki & Ors., MAC APP 165/2013 decided on 29.02.2016.
16. DAR filed by the IO includes copies of FIR, charge sheet, MLC, postmortem report of the deceased, site plan, seizure memo and mechanical inspection reports of both the vehicles involved in the accident besides other documents of offending vehicle. These documents are admissible in evidence and deemed to be correct under Rule 7 of the Motor Accidents Claims Tribunal Rules, 2008 until proved to be contrary. DAR and the documents of criminal proceedings have not been challenged by any of the respondents and they have gone unrebutted.
17. According to FIR, police did not meet eye witness at the spot. According to chargesheet, the offending vehicle was seized by the police picket near the flyover on being caught by the public persons. Seizure memo of the truck shows the circumstances in which it was stopped and seized near the spot. During the investigation, statement of eye witness Ravi Kumar (PW2) was recorded who disclosed the number of the offending vehicle to the police and on his identification site plan was prepared by the IO.
18. FIR, seizure memo of offending vehicle and chargesheet has gone unrebutted. Number of the offending vehicle was disclosed by the eye witness Ravi Kumar (PW2) to the police during investigation and he has deposed in the affidavit (Ex. PW2/A) about the number of the offending vehicle. There is no crossexamination of this witness with respect to the identity of the offending vehicle by any of the respondents and his deposition in this regard has gone unrebutted. Moreover, the seizure memo and the chargesheet show the circumstances in which the offending vehicle was seized by the police picket at Mangol Puri, according to which Petition No.: 76891/2016 Page No. 6 of 17 the offending vehicle was forced to stop by public persons and then was seized by the police. Therefore, the testimony of eye witness (PW2) and other evidence on record in the form of documents of criminal proceedings leave no doubt that Truck bearing Regn. No. HP19B2677 was involved in the accident.
19. According to reply of Rajesh Kumar, Respondent no. 2/owner of the offending vehicle to the notice under Section 133 of M. V. Act given by the IO, the offending vehicle was driven by Swaroop Singh (Respondent no. 1) at the time of accident. This document has gone unrebutted and there is no rebuttal by Respondents no. 1 and 2 in the written statement or otherwise that at the time of accident the offending vehicle was driven by Respondent no. 1.
20. On the issue of rash and negligent conduct of Swaroop Singh, Respondent no. 1, testimony of PW2 is very specific according to which offending truck had hit the motorcycle of the deceased from behind. Though, Respondents no. 1 and 2 have taken a plea in the written statement that the motorcycle of the deceased was hit by a car, surprisingly not even a suggestion to this effect has been put to the eye witness in the crossexamination.
21. Testimony of PW2 with respect to the cause and manner of accident is corroborated by the site plan and mechanical inspection reports of the two vehicles involved in the accident. The spot of accident as per site plan is on the one way road of Railway over bridge which had a road divider on which the deceased, eye witness and the offending vehicle were going in one direction. Mechanical Inspection reports show fresh damages on the right side body of the motorcycle of the deceased and left rear lower driver cabin of the offending vehicle. This kind of damages on the two vehicles would come when the offending vehicle would hit the motorcycle of the deceased while overtaking it from behind.
22. The evidence on record shows that the accident was caused when the motorcycle of the deceased was hit from behind by the offending vehicle Petition No.: 76891/2016 Page No. 7 of 17 while over taking in a rash and negligent manner.
23. According to MLC of deceased Brahm Prakash from Sanjay Gandhi Memorial Hospital, he was brought to the hospital in unconscious state with the alleged history of Road Traffic Accident. According to postmortem report, death was caused due to 'craniocerebral damages as a result of blunt force impact' possible in a road traffic accident. The postmortem report is not disputed by any of the respondents with respect to cause of death.
24. On the basis of the evidence on record, above observations and discussion, I hold that the accident involving Truck bearing Regn. No. HP 19B2677, took place due to rash and negligent driving of its driver Swaroop Singh, respondent No. 1 and further that deceased Brahm Prakash died of fatal injuries suffered in this accident.
Issue No. 1 is decided in favour of the petitioners and against the respondents.
25. Findings on Issue No. 2:
Whether the petitioners are entitled to any compensation? If so, to what amount and from whom?
Since, Issue No. 1 is decided in favour of the petitioners, they are entitled for compensation.
26. In Sarla Verma (Smt) and Others vs. Delhi Transport Corporation and Another, (2009) 6 Supreme Court Cases 121, Hon'ble Supreme Court of India laid down general principals for computation of compensation in death cases. The relevant paras of the judgment are reproduced as under:
18. Basically only three facts need to be established by the claimants for assessing compensation in the case of death:
(a) age of the deceased;
(b) income of the deceased; and
(c) the number of dependents.
This issues to be determined by the Tribunal to arrive at the loss of dependency are:
(i) additions/deductions to be made for arriving at the income;
(ii) the deduction to be made towards the personal living expenses of the deceased; and Petition No.: 76891/2016 Page No. 8 of 17
(iii) the multiplier to be applied with reference to the age of the deceased.
If these determinations are standardized, there will be uniformity and consistency in the decisions. There will be lesser need for detailed evidence. It will also be easier for the Insurance Companies to settle accident claims without delay.
19. To have uniformity and consistency, the Tribunals should determine compensation in cases of death, by the following well settled steps:
Step1 (Ascertaining the multiplicand) The income of the deceased per annum should be determined. Out of the said income a deduction should be made in regard to the amount which the deceased would have spent on himself by way of personal and living expenses. The balance, which is considered to be the contribution to the dependent family, constitutes the multiplicand. Step2 (Ascertaining the multiplier) Having regard to the age of the deceased and period of active career, the appropriate multiplier should be selected. This does not mean ascertaining the number of years he would have lived or worked but for the accident. Having regard to several imponderables in life and economic factors, a table of multiplier with reference to the age has been identified by this Court. The multiplier should be chosen from the said table with reference to the age of the deceased. Step3 (Actual Calculation) The annual contribution to the family (multiplicand) when multiplied by such multiplier gives the 'loss of dependency' to the family.
Thereafter, a conventional amount in the range of Rs. 5,000/ to Rs. 10,000/ may be added as loss of estates. Where the deceased is survived by his widow, another conventional amount in the range of Rs. 5,000/ to Rs. 10,000/ should be added under the head of loss of consortium. But no amount is to be awarded under the head of pain, suffering or hardship caused to the legal heirs of the deceased.
The funeral expenses, cost of transportation of the body (if incurred) and the cost of any medical treatment of the deceased before death (if incurred) should also be added. Age of the deceased
27. Petitioners have filed on record documents of educational qualification of deceased Brahm Prakash collectively as Ex. PW1/2 which includes matriculation certificate (Sr. No. 2), according to which date of birth of the deceased is 28.09.1980. The document with respect to age has not been disputed by any of the respondents and there is no reason to disbelieve the same. Accident took place on 24.11.2014. On the basis of matricualtion certificate, age of the deceased was 34 years and 2 months at the time of accident.Petition No.: 76891/2016 Page No. 9 of 17
Income of the deceased
28. PW1 Smt. Bharti, wife of the deceased has deposed in affidavit Ex. PW1/A that her deceased husband was working as a Manager with M/s. Ashutosh Medicos, Shop No. 19, A3, DDA Market, Paschim Vihar, New Delhi on monthly salary of Rs. 19,000/. PW3 Sh. Raj Kumar, Proprietor of Ashutosh Medicos has testified that Brahm Pakash S/o Late Sh. Ram Babu was a permanent employee and was working as a Manager since 13 years and was getting salary of Rs. 18,600/ per month. He has filed on record pay bills showing payment of salary to the deceased collectively as Ex.
PW3/1 besides attested copy of attendance register showing attendance of the deceased collectively as Ex. PW3/2. PW3 stated that registration number of Ashuhtosh Medicos is 9 (2227) 20, 21 & TIN No. is 0711037565.
29. It has come in the crossexamination of PW3 by the Counsel for Respondent no. 3/Insurance Co. that he is the sole Proprietor of M/s. Ashutosh Medicos and that formal appointment letter is not issued to the employees. The witness stated that he is filing ITR in the name of M/s. Ashutosh Medicos.
30. Testimony of PW3 Raj Kumar is reliable with respect to the fact that he is the sole Proprietor of M/s. Ashutosh Medicos as he gave Registration number of the business concern in his deposition and has stated that ITRs are filed by him in which he shows the salaries paid to the employees. Just because the witness did not file the ITRs, is no reason for disbelieving his deposition because no opportunity was given to him to produce the ITRs as has been stated by him specifically in the crossexamination. Considering the scope of enquiry, the fact that the Registration number of M/s. Ashutosh Medicos has been disclosed by the witness in his deposition, which has not been rebutted by the Respondent no. 3/Insurance Co., is sufficient to establish the capacity of PW3 as sole Proprietor of M/s. Ashutosh Medicos.
31. Ex. PW3/1 are pay bills of the employees of M/s. Ashutosh Medicos shop Petition No.: 76891/2016 Page No. 10 of 17 from April, 2013 to March, 2015 which show payment of salary to the deceased Brahm Prakash from April, 20 13 to November, 2014. Pay bills show break up of the salary paid under different heads as basic pay, 20% D. A., Washing Allowance, Medical allowance, Transport Allowance. It also shows receipt of salary by the deceased Brahm Prakash and other employees of M/s. Ashutosh Medicos by signing on the revenue stamp. There is no reason to disbelieve the record produced about the fact that deceased Brahm Prakash was an employee of M/s. Ashutosh Medicos who was regularly paid monthly salary in cash.
32. Ex. PW3/2 is the attested copy photocopy of attendance register of M/s. Ashutosh Medicos from January, 2014 to November, 2015 which shows attendance of the deceased Brahm Prakash as an employee along with other employees from January, 2014 till 24.11.2014 ie., the date of accident.
33. Testimony of PW1, PW3 and documents produced by PW3 are sufficient to discharge initial burden of the petitioners to prove the employment and salary of the deceased. The pay bills (Ex. PW3/1) and attendance record (Ex. PW3/2) show that deceased was an employee of M/s. Ashutosh Medicos as Manager and was drawing monthly salary of Rs. 18,600/ at the time of accident. Accordingly, annual income of the deceased would be Rs. 2,23,200/ (Rs. 18,600/ X 12 months). Addition in the income towards future prospects:
34. Counsel for petitioners has argued that addition in income of the deceased towards future prospects be considered as the salary of the deceased was increased regularly. On the other hand, Counsel for the Respondent no. 3/Insurance Co. has contended that since the deceased was in the private employment, in the absence of proof of permanent employment, no addition can be considered towards future prospects.
35. This issue was considered recently by the Hon'ble High Court of Delhi in MAC. Appeal No. 622/2014 (The Oriental Insurance Co. Ltd. Vs. Petition No.: 76891/2016 Page No. 11 of 17 Lekharaj @ Lekh Raj & Ors.) decided on 27.01.2016. Relevant paras of the judgment are reproduced for reference:
"4. In the case reported as Sarla Verma & Ors. Vs. Delhi Transport Corpo ration & Anr., (2009) 6 SCC 121, Supreme Court interalia, ruled that the element of future prospects of increase in income will not be granted in cases where the deceased was "self employed" or was working on a "fixed salary". Though this view was affirmed by a bench of three Hon'ble Judges in Resham Kumari & Ors. Vs. Madan Mohan & Anr. (2013) 9 SCC 65, on account of divergence of views, as arising from the ruling in Rajesh & Ors. Vs. Rajbir & Ors., (2013) 9 SCC 54, the issue was later referred to a larger bench, interalia, by order dated 02.07.2014 in Na tional Insurance Company Ltd. Vs. Pushpa & Ors., (2015) 9 SCC 166.
5. Against the above backdrop, by judgment dated 22.01.2016 passed in MAC Appeal No. 956/2012 Sunil Kumar Vs. Pyar Mohd & Ors., this court has found it proper to follow the view taken earlier by a learned sin gle judge in MAC Appeal No. 189/2014 (HDFC Ergo General Insurance Co. Ltd. Vs. Smt. Lalta Devi & Ors.) decided on 12.01.2015, presently taking the decision in Reshma Kumari (Supra) as the binding precedent, till such time the law on the subject of future prospects for those who are "self employed" or engaged in gainful employment at a "fixed salary" is clarified by a larger bench of the Supreme Court. This applies to the mat ter at hand because the claimant here pleaded about gainful employment at a fixed salary and has not led any evidence showing the salary was subject to any periodic increase."
36. It has come in the testimony of PW3 that deceased was a permanent em ployee of M/s. Ashutosh Medicos who was working since past 13 years. At the time of accident, the deceased was working as a Manager. According to pay bills (Ex. PW3/1) filed on record, monthly salary of the deceased in April, 2013 was Rs. 16,800/ which increased to Rs. 18,600/ in the month of April, 2014, which was the salary drawn by the deceased in November, 2014 when he died in the accident. Break up of salary in the pay bills shows that increase in the monthly salary of the deceased is on account of in crease in his basic pay which was Rs. 12,500/ in April, 2013 and was en hanced to Rs. 14,000/ in April, 2014.
37. It is a matter of common knowledge that employment in small establish ments and private firms as in this case are not through appointment letters. Still such employments have element of continuity and permanency, which can be inferred from the books of account produced, as in this case by way of pay bills and attendance record. Jobs of this nature also have annual in crements as is shown by the record produced (Ex. PW3/1).
Petition No.: 76891/2016 Page No. 12 of 1738. In view of the evidence on record, in the natural course of continuity in the employment, salary of the deceased would have continued to increase in due course. Keeping in view the criteria laid down in Sarla Verma (Smt) and Others vs. Delhi Transport Corporation and Another (Supra) hav ing regard to the age of deceased, 50% income of deceased is required to be added towards future prospects.
Number of dependents
39. PW1 Smt. Bharti, wife of the deceased has deposed in her affidavit Ex. PW1/A that parents of the deceased are no more alive and that all the three (03) petitioners were dependent on her deceased husband. Petitioner no. 1 is the wife and petitioners no. 2 & 3 are the minor children of the deceased. National Food Security Card (Ex. PW1/11) shows names of petitioner no. 1 and petitioners no. 2 & 3 as family members. According to DAR, all the petitioners are LRs of the deceased. There is no contest to the number of LRs of the deceased by the respondents and there is no reason to disbelieve the claim of the petitioners about their dependency on the deceased, in the absence of any evidence to the contrary.
40. In the light of above facts, for the purpose of present claim petition, it is held that deceased is survived by three dependent LRs, which include his wife Smt. Bharti (Petitioner no. 1) and his two minor children namely Baby Nandika and Master Chirag (Petitioners no. 2 and 3). Deduction towards personal living expenses of the deceased:
41. Deceased Brahm Prakash was married at the time of accident. He is survived by his wife and two (02) minor children. On the basis of the criteria laid down in Sarla Verma case (supra), deduction in the income of the deceased towards his personal and living expenses would be 1/3 rd of his income. Therefore, annual contribution to the family by the deceased would be Rs. 2,23,200/ {(Rs. 2,23,200/ (annual salary)+ Rs. 1,11,600/ (50% of annual income as Future prospects)X 2/3 rd) which is ascertained as multiplicand.
Petition No.: 76891/2016 Page No. 13 of 17Selection of multiplier:
42. Age of the deceased was 34 years and 2 months on the date of the accident. He was married. Keeping in view the criteria laid down in Sarla Verma case (supra), multiplier applicable according to age of deceased would be 16.
Loss of financial dependency:
43. On the basis of facts and circumstances of this case and the material on record, total loss of financial dependency of the LRs of the deceased would be Rs. 35,71,200/ {Rs. 2,23,200/ (multiplicand) X 16 (multiplier)}. (Rupees Thirty Five Lacs Seventy One Thousand Two Hundred Only). Compensation under nonpecuniary heads:
44. Issue of adequacy of the amount of compensation under nonpecuniary heads, in terms of just and fair, came into consideration before the Delhi High Court recently in MAC APP No. 160/2015 & CM No. 2915/2015 titled Shriram General Insurance Company Limited Vs. Usha & Ors., decided on 05.05.2016, wherein while referring to the judgment of Rajesh & Others Vs. Rajbir Singh & Others (2013) 9 SCC 54 in the context of an accident that had occurred on 05.10.2007, it was held that the amount given under nonpecuniary heads cannot remain same after elapse of a decade. Relevant paras of the judgment are reproduced as under:
8. The contention of the claimants as to the nonpecuniary heads of dam ages is correct. The award on account of loss of consortium and loss of love and affection and funeral expenses as granted in Rajesh Vs. Rajbir (Supra) in the context of an accident that had occurred on 05.10.2007 was adopted by the Supreme Court in a case later decided reported as Shashikala Vs. Gangalakshmamma (2015) 9 SCC 150 wherein the fa tal accident had occurred on 14.12.2006.Similar award were made in Kala Devi (Supra) pertaining to cause of action of 15.12.2003. The as sessment of nonpecuniary damages under these heads with reference to cause of action that has arisen in 20032007 cannot remain the same even after elapse of almost a decade. The value of money has substan tially eroded over the period on account of effect of inflation. It is the duty of this court to periodically reassess the awards on nonpecuniary heads of damages so as to bring in suitable correction to restore the value of money.
9. For these reasons, it is held that in the present case where the death had occurred on 02.09.2013, the award under the heads of loss of love and Petition No.: 76891/2016 Page No. 14 of 17 affection and loss of consortium shall be Rs. 1,50,000/ each. Similarly, the awards on account of funeral expenses and loss of estate deserve to be increased to Rs. 50,000/ each. The awards are directed to be en hanced to the abovesaid levels in the case at hand.
45. In view of the above, Smt. Bharti (Petitioner No. 1) is entitled to a sum of Rs. 1,50,000/ (Rupees One Lac Fifty Thousand Only) towards loss of consortium and petitioners no. 2 & 3 are entitled to a sum of Rs. 1,50,000/ (Rs. One Lac Fifty Thousand Only) towards loss of love & affection. They are also entitled to Rs. 50,000/ (Rs. Fifty Thousand Only) towards funeral expenses and Rs. 50,000/ (Rs. Fifty Thousand Only) towards loss of estate.
Computation of compensation:
46. The total compensation is assessed as under:
Sl. No. Heads Amount
1. Loss of Financial Dependency 35,71,200.00
2. Loss of Love & Affection 1,50,000.00
3. Funeral Expenses 50,000.00
4. Loss of Estate 50,000.00
5. Loss of Consortium 1,50,000.00
Total 39,71,200.00
Accordingly, total compensation is assessed as Rs. 39,71,200/ (Rupees Thirty Nine Lacs Seventy One Thousand Two Hundred Only). Liability:
47. Respondent No. 1 Swaroop Singh is liable to pay compensation, being the driver of the offending vehicle ie., Truck bearing Regn. No. HP19B2677, as the accident took place due to his rash and negligent driving. Respondent no. 2 Rajesh Kumar is vicariously liable for the conduct of respondent no. 1, being the owner of the offending vehicle.
48. It is admitted by the Respondent no. 3/Insurance Co. that offending vehicle ie., Truck bearing registration No. HP19B2677 was insured with Insurance Company vide Policy No. P0015100002/4193/106532 valid from 04.06.2014 to 03.06.2015, including the date of accident. There is no Petition No.: 76891/2016 Page No. 15 of 17 statutory defence pleaded. Therefore, all the respondents are jointly and severally liable to pay compensation to the petitioners. However, since the offending vehicle was duly insured to cover the third party risk, respondent No. 3/Insurance Company is under the statutory liability to pay the compensation to the petitioners.
Relief:
49. In view of above findings on Issues No. 1 & 2, I award an amount of Rs.
39,71,200/ (Rupees Thirty Nine Lacs Seventy One Thousand Two Hundred Only) as compensation to the petitioners. Petitioners are also entitled to get interest @ 9% pa from the date of filing of the claim petition i.e., 23.12.2014 till realisation. Amount of Interim Award, if paid any, shall be deducted from the compensation amount.
Apportionment:
50. Share of petitioners in the award amount shall be as under: Sr. Name Relationship Share in the No. with the award amount deceased
1. Smt. Bharti Wife 30% (Petitioner No. 1)
2. Baby Nandika Minor daughter 35% (Petitioner No. 2)
3. Master Chirag Minor son 35% (Petitioner No. 3) Mode of payment and disbursement:
51. Respondent No. 3/Insurance Company shall deposit the award amount within 30 days from the date of Award in the State Bank of India, Tis Hazari Branch, Delhi in the name of the petitioners under intimation to the petitioners and the Tribunal. In default of payment within the prescribed period, respondent/Insurance Company shall be liable to pay interest @ 12% p.a. for the period of delay till its realisation.
52. While making the deposit, Insurance Company shall mention the particulars of this case, name of the Tribunal and the date of decision on the back side of the cheque. Insurance Company shall also file copy of the award Petition No.: 76891/2016 Page No. 16 of 17 attested by its responsible officer in the bank at the time of deposit.
Insurance Company is further directed to place on record proof of deposit of the award amount, proof of delivery of notice to the petitioners in respect of deposit of the award amount and complete details in respect of calculation of interest etc. in the Tribunal within 30 days with effect from today.
53. In order to avoid the compensation money being frittered away, 50% share of Smt. Bharti (Petitioner no. 1), wife of the deceased will be kept in FDR in her name for five (05) years. Entire share of Baby Nandika and Master Chirag (Petitioners no. 2 & 3), minor children of the deceased would be kept in FDRs for the period till after 5 years of their attaining the age of majority. No loan or advance shall be allowed against these deposits. However, the quarterly interest from these deposits can be withdrawn by their mother Smt. Bharti (Petitioner no. 1).
54. Petitioners shall open account in State Bank of India, Tis Hazari Branch, Delhi. Manager of the Bank shall comply and release the award amount to the petitioners in terms of the Award.
55. Copy of the Award be given to the parties free of cost.
56. Copy of the Award be also sent to the Court of concerned Metropolitan Magistrate.
57. Nazir is directed to prepare a separate file for compliance and be put up on 21.12.2016.
58. Form IV prescribed in clause 29 of Modified Claims Tribunal Agreed Procedure is annexed with the Award in compliance of order of Hon'ble High Court of Delhi dated 12.12.2014 in FAO NO. 842/2003 titled Rajesh Tyagi Vs. Jaibir Singh & Ors.
59. File be consigned to Record Room.
Announced in the open Court (Santosh Snehi Mann) on 19.11.2016. Judge, Motor Accident Claims Tribunal02, KJC West District, Tis Hazari Courts, Delhi.
Petition No.: 76891/2016 Page No. 17 of 17FORM IV COMPLIANCE OF THE PROVISIONS OF THE MODIFIED CLAIMS TRIBUNAL AGREED PROCEDURE TO BE MONITORED IN THE AWARD
1. Date of Accident 24.11.2014.
2. Date of intimation of the accident by the Not mentioned in DAR.
Investigating Officer to the Claims Tribunal (Clause 2)
3. Date of intimation of the accident by the 29.01.2015.
Investigating Officer to the Insurance Company (Clause 2)
4. Date of filing of Report under Section 173 28.09.2015.
Cr.P.C. before the Metropolitan Magistrate (Clause 10)
5. Date of filing of Detailed Accident Information 14.10.2015.
Report (DAR) by the Investigating Officer before Claims Tribunal (Clause 10)
6. Date of Service of DAR on the Insurance 14.10.2015.
Company
7. Date of service of DAR on the Claimant(s) 14.10.2015.
(Clause 11)
8. Whether DAR was complete in all respects? Yes.
(Clause 16)
9. If not, state deficiencies in the DAR No.
10. Whether the police has verified the documents Yes. filed with DAR? (Clause 4)
11. Whether there was any delay or deficiency on No. the part of the Investigating Officer? If so, whether any action/direction warranted?
12. Date of appointment of the Designated Officer 14.10.2015. by the Insurance Company (Clause 19)
13. Name, address and contact number of the Sh. M. Awasthi, Adv.
Designated Officer of the Insurance Company Magma HDI General
(Clause 19) Insurance Co. Ltd.
14. Whether the Designated Officer of the No.
Insurance Company submitted his report within 30 days of the DAR? (Clause 21)
15. Whether the Insurance Company admitted the No. liability? If so, whether the Designated Officer of the Insurance Company fairly computed the compensation in accordance with law (Clause
22)
16. Whether there was any delay or deficiency on No. 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 the offer N.A. of the Insurance Company (Clause 23)
18. Date of Award 19.11.2016.
19. Whether the Award was passed with the Contested judgment consent of the parties? (Clause 22)
20. Whether the Claimant(s) examined at the time Yes. of passing of the Award to ascertain his/their financial condition? (Clause 26)
21. Whether the photographs, specimen Yes.
signatures, proof of residence and particulars of bank account of the injured/legal heirs of the deceased taken at the time of passing of the Award? (Clause 26)
22. Mode of disbursement of the Award amount to Through SBI Bank, Tis the Claimant(s) (Clause 28) Hazari Branch, Delhi.
23. Next date for compliance of the Award (Clause 21.12.2016.
30) (Santosh Snehi Mann) Judge, Motor Accident Claims Tribunal02, West District, Tis Hazari Courts, Delhi.
19.11.2016.