Delhi District Court
Sh. Nafe Singh (Mact vs Sh. Pawan Kumar on 16 January, 2018
IN THE COURT OF SH. RAJ KUMAR
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNAL:
(WEST-01):DELHI
New MACT Case No. 477475/16 and 477474/16
1. Sh. Nafe Singh (MACT Petitioner No. 477475/16)
S/o Shriram
2. Smt. Santra Devi
W/o Sh. Nafe Singh
3. Master Aayush Beniwal
S/o Late Sh. Sh. Sanjeev Beniwal
4. Master Vansh Beniwal
S/o Late Sh. Sanjeev Beniwal
All Resident of :-
41/6, Madan Park, East Punjabi Bagh,
Delhi-110026
........Petitioners
&
1. Sh. Nafe Singh (MACT Petitioner No. 477474/16)
S/o Shriram
2. Smt. Santra Devi
W/o Sh. Nafe Singh
3. Master Aayush Beniwal
S/o Late Sh. Sh. Sanjeev Beniwal
4. Master Vansh Beniwal
S/o Late Sh. Sanjeev Beniwal
All Resident of :-
41/6, Madan Park, East Punjabi Bagh,
Delhi-110026
........ Petitioners
New MACT Case Nos. 477475/16 & 477474/17
pages 1/36
Versus
1. Sh. Pawan Kumar
S/o Sh. Phool Kumar
R/o VPO Katwal Teh. Gohana,
Sonipat, Haryana-131001
2. Sh. Shri Pal
S/o Sh. Sher Singh
R/o A-1/99, Block-A,
Rajeev Nagar,
Delhi-110081
3. SBI General Insurance Co.
7B, Ground Floor, Pusa Road,
Opposite to Rachna Cinema
& Metro Pillar No. 153 Rajendra Park,
New Delhi-110060
........ Respondents
Date of Institution : 02.02.2016
Date of reserving order/judgment : 05.01.2018
Date of pronouncement : 16.01.2018
A W A R D:
FORM-V
COMPLIANCE OF THE PROVISIONS OF THE MODIFIED CLAIMS
TRIBUNAL AGREED PROCEDURE
1. Date of the accident 29.03.2015
2. Date of intimation of the accident by the Not mentioned
Investigation Officer to the Claims
Tribunal. (Clause 2)
3. Date of Intimation of the accident by the Not mentioned
Investigating Officer to the Insurance
Company. (Clause 2)
4. Date of filing of Report under Section 08.04.2015
New MACT Case Nos. 477475/16 & 477474/17
pages 2/36
173 Cr. P.C. before the Metropolitan
Magistrate. (Clause 10)
5. Date of filing of Detailed Accident DAR was not filed in the
Information Report (DAR) by the present case as the
Investigating Officer before Claims present case pertains to
Tribunal. (Clause 10) out of station
6. Date of service of DAR on the N.A
Insurance Company. (Clause 11)
7. Date of service of DAR on the claimant N.A.
(s). (Clause 11)
8. Whether DAR was complete in all N.A.
respects? (Clause 16)
9. If not, whether deficiencies in the DAR N.A
removed later on?
10. Whether the police has verified the N.A.
documents filed with DAR? (Clause 4)
11. Whether there was any delay or No
deficiency on the part of the
Investigating Officer ? If so, whether
any action/ direction warranted?
12. Date of appointment of the Designated Not mentioned
Officer by the Insurance Company.
(Clause 20)
13. Name, address and contact number of Not mentioned
the Designated Officer of the Insurance
Company. (Clause 20)
14. Whether the Designated Officer of the Legal offer was not filed
Insurance Company submitted his by the insurance
report within 30 days of the DAR? company as defence
(Clause 22) was taken by the
insurance company
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.
(Clause 23)
16. Whether there was any delay or Legal offer was not filed
New MACT Case Nos. 477475/16 & 477474/17
pages 3/36
deficiency on the part of the Designated by the insurance
Officer of the Insurance Company? If company.
so, whether any action/direction
warranted?
17. Date of response of the claimant (s) to Legal offer was not filed
the offer of the Insurance Company. by the insurance
(Clause 24) company
18. Date of the award 16.01.2018
19. Whether the award was passed with Yes
the consent of the parties? (Clause 22)
20. Whether the claimant (s) were directed Yes
to open savings bank account (s) near
their place of residence? (Clause 18)
21. Date of order by which claimant (s) The petitioners have
were directed to open savings bank filed on record their bank
account (s) near his place of residence details
and produce PAN Card and Adhaar
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 12.01.2018
the passbook of their savings bank
account near the place of their
residence along with the endorsement,
PAN Card and Adhaar Card? (Clause
18)
23. Permanent Residential Address of the 41/6 Madan Park, East
Claimant(s) (Clause 27) Punjabi Bagh, Delhi
24. Details of savings bank account(s) of Petitioner No.2 having
the claimant(s) and the address of the saving bank account No.
bank with IFSC Code. (Clause 27) 915010036629228 of
Axis Bank Ltd., East
Punjabi Bagh Branch,
Delhi, IFSC Code
UTIB0002497
Petitioner No.3 having
New MACT Case Nos. 477475/16 & 477474/17
pages 4/36
saving bank account No.
915010032979884 of
Axis Bank Ltd., East
Punjabi Bagh Branch,
Delhi, IFSC Code
UTIB0002497
Petitioner No.4 having
saving bank account No.
915010033514785 of
Axis Bank Ltd., East
Punjabi Bagh Branch,
Delhi, IFSC Code
UTIB0002497
25. Whether the claimant(s) savings bank Yes
account (s) in near his place of
residence? (Clause 27)
26. Whether the claimant (s) were Yes
examined at the time of passing of the
award to ascertain his/their financial
condition? (Clause 27)
PART-A
BRIEF FACTS OF ACCIDENT
1. Vide this common Judgment-cum-Award, I shall decide both the petitions bearing MACT No. 477475/16 titled as Nafe Singh vs. Pawan Kumar & Ors., and MACT No. 477474/16 titled as Nafe Singh vs. Pawan Kumar & Ors., under Section 166 and 140 of Motor Vehicle Act 1988 as amended up to date (hereinafter referred as the 'Act') filed by the petitioners for grant of compensation for the death of the deceased Sh. Sanjeev Kumar and Smt. Sameena Devi in the road vehicular accident.
2. The abovesaid claim petitions have arisen out of the same FIR bearing No. 143/2015 dated 29.03.2015; PS Kharkhoda, New MACT Case Nos. 477475/16 & 477474/17 pages 5/36 District Sonipat, Haryana; u/s 279/304A IPC and the factual matrix involved in both the claim petitions is the same. Both the abovesaid claim petitions have been consolidated vide orders dated 04.03.2017.
Facts of the petition no. 477475/16 titled as Nafe Singh vs. Pawan Kumary & Ors.
3. Brief facts of the case of the petitioners are that on 29.03.2015, the deceased Late Sh. Sanjeev Kumar S/o Sh. Nafe Singh along with his wife Smt. Sameena Devi were travelling in his Dezire Car bearing No. DL-3CB-2673. It has been further stated that they were coming from Rohtak towards Kharkhoda. It has been further stated that suddenly, a truck bearing registration No. HR-69A- 9451 came at a very high speed and hit straight into the car of the deceased at Sisana Roa, Khorkhoda, Haryana. It has been further stated that after the accident, Sh. Sanjeev Kumar and Smt. Sameena Devi were taken to PGIMS Hospital where the doctors declared Sameena Devi brought dead.
4. Perusal of the death certificate Ex. PW3/15 of deceased Sh. Sanjeev Kumar reveals that he also expired on 29.03.2015 at PGIMS Hospital, Rohtak.
5. It has been further stated that at the time of accident, the deceased Sh. Sanjeev Kumar was 39 years of age. It has been further stated that the deceased was working as Manager Operation in Jai Balaji Service and getting a salary of Rs.36,000/- per month.
6. It has been further stated that the deceased is survived by his parents and two sons. It has been further stated that the petitioner No.1 is the father of the deceased, the petitioner No.2 is the mother of the deceased and the petitioners No. 3 & 4 are the sons of New MACT Case Nos. 477475/16 & 477474/17 pages 6/36 the deceased.
7. The petitioners have claimed compensation under various heads and in total the petitioners have claimed the amount of Rs. 72,10,000/- (Rupees Seventy Two Lakhs and Ten Thousand Only) along with the interest upto date.
8. As a result of the abovesaid accident, as per the case of the petitioner, FIR No. 143/2015; dated 29.03.2015; PS Kharkhoda, District Sonipat, Haryana; u/s 279/304A IPC was registered.
9. It has been further stated that the respondent no.1 being the owner of the offending vehicle, the respondent no.2 being the Driver and the respondent no.3 being the Insurer of the offending vehicle are jointly and severally liable to pay the compensation to the petitioner.
PART-B DEFENCE OF DRIVER AND OWNER RESPONDENT No. 1 & 2
10. Written statement has been jointly filed by the respondents No.1 & 2 wherein it has been stated that the deceased himself was responsible for the said accident as he was driving his car in a rash and negligent manner. It has been further stated that there was no negligence on the part of the respondent no.2. It has been further stated that suddenly, the deceased lost his control over the car and consequently, he came on the wrong side of the road and hit the truck of the respondent which was parked on the extreme side of the road from the front side. It has been further stated that at the time of alleged accident, the respondent No.2 was having valid driving license. It has been further stated that the offending vehicle was duly insured with the respondent No.3 vide policy No. 0000000001690626 New MACT Case Nos. 477475/16 & 477474/17 pages 7/36 valid from 30.03.2014 to 29.09.2015. It has been further stated that the respondent No.2 was also having valid road permit issued by the concerned Transport Authority for the period of 24.04.2012 to 18.04.2017. It has been prayed that the present claim petition be dismissed.
PART-C DEFENCE OF INSURANCE COMPANY RESPONDENT No. 3
11. Written statement has been filed on record by the Insurance Company i.e. by the respondent no.3 wherein it has been admitted that the offending vehicle bearing No. HR-69A-9451 (Truck- HGV) was insured with it at the time of accident vide policy No. 1690626 valid from 30.03.2014 to 29.03.2015 issued in the name of Sh. Pawan Kumar. The insurance company, in the reply/written statement has stated that its liability is subject to the terms and conditions of the insurance policy. It has been prayed that the present claim petition be dismissed.
Facts of MACT No. 477474/16 titled as Nafe Singh vs. Pawan Kumar & Ors
12. The factual matrix concerning the date, time and manner of the accident in the present claim petition is the same as is in the above stated MACT No. 477475/16. The defence of the respondents is also the same. The present claim petition has been filed by the petitioners for grant of compensation for the death of the deceased Smt. Sameena Devi in the road vehicular accident.
New MACT Case Nos. 477475/16 & 477474/17 pages 8/36
13. In the present claim petition, It has been further stated that the deceased Smt. Sameena Devi was 31 years of age at the time of accident. It has been further stated that the deceased was a house wife.
14. The petitioners have claimed an amount of Rs. 22,91,680/- (Rupees Twenty Two Lakhs Ninety One Thousand and Six Hundred Eighty Only) in the present claim petition.
PART-D ISSUES
15. From the pleadings of the parties, the following common issues were framed by the Ld. Predecessor of this Tribunal on 16.09.2016 in both the matters:-
1. Whether Sanjeev Kumar and Sameena Devi suffered fatal injuries in an accident that took place on 29.03.2015 at about 2:00 PM., due to rash and negligent driving of respondent No.1 of the vehicle No. HR-69A-9451 (Truck), owned by respondent No.2 and insured with respondent No.3? OPP.
2. Whether the petitioners are entitled to compensation being sole LRs of the deceased persons? If so, to what amount and from whom? OPP
3. Relief.
PART-E PETITIONER'S EVIDENCE New MACT Case Nos. 477475/16 & 477474/17 pages 9/36
16. In order to establish their claim, the petitioners have examined the Sh. Neeraj Kumar Sinha, Inspector from Income Tax Department as PW-1 and this witness has filed on record the Income Tax returns filed by Sh. Sanjeev Kumar S/o Sh. Nafe Singh bearing PAN No. AOEPK0465M for the year 2011-12, 2013-14 and 2014-15 as Ex. PW1/1(colly). PW-1 has also filed on record the certificate u/s 65B of the Indian Evidence Act as Ex. PW1/B and his authorization letter as Ex. PW1/C.
17. In the cross examination done by Ld. Counsel for the Insurance company, PW-1 has stated that the income tax record of the assessment year 2012-2013 was not available in their system. PW-1 has further stated that it might be possible that deceased had not filed the same. PW-1 has further stated that the assessee might have filed the income tax return for the assessment year 2015-16 but the same is not reflected in their system.
18. The petitioners have further examined Sh. Sanjeev Kumar S/o Sh. Brij Ran Singh as PW-2 and this witness has filed on record his affidavit as PW-2/A. PW-2 has also brought on record the original salary voucher slips of the deceased Sh. Sanjeev Kumar for the period 21.04.2013 to 08.04.2015 as Ex. PW2/1 (colly); ledger account maintained by M/s Jai Bala Ji Security Services pertaining to deceased Sh. Sanjeev Kumar for the period from 01.04.2013 to 31.03.2014 and another from the period from 01.04.2014 to 31.03.2015 as Ex. PW2/2.
19. In the cross examination done by Ld. Counsel for the insurance company, PW-2 has admitted it to be correct that the petitioner No.1 Sh. Nafe Singh is the proprietor of Jai Bala Ji Security Service. PW-2 has further stated that the firm is registered with the appropriate authority but he had not brought the registration certificate New MACT Case Nos. 477475/16 & 477474/17 pages 10/36 of the firm. PW-2 has stated that the firm M/s Jai Balaji Security Services is an Income tax assessee having a proper income tax number. PW-2 has further stated that the firm is income tax assessee for last 10 years. PW-2 has further stated that their firm is not deducting the TDS. PW-2 has further stated he is looking after the accounts department but the salary is being looked after by the Chartered Accountant.
20. PW-2 has further stated that he had not brought any report to show that he was working with the said firm. PW-2 has further stated that Sh. Lalit Kumar is the Chartered Accountant in their firm. PW-2 has admitted it to be correct that Ex. PW2/2 is not a complete certificate u/s 65B of Indian Evidence Act. PW-2 has further stated that the payment of the salary of each employee has been reflected in the income tax return of the firm.
21. PW-2 has stated that the said firm is a proprietorship firm of Sh. Nafe Singh and the photocopy of PAN Number of Sh. Nafe Singh which has already been placed on record as Ex. PW2/X1(OSR). PW-2 has further stated that he has also placed on record the registration declaration of ownership of the said firm and the photocopy of the same has been exhibited as Ex. PW2/X2(OSR).
22. PW-2 has further stated that he has also brought the income tax returns for the assessment year 2015-16 and 2016-2017 and the photocopies of the abovesaid income tax returns together with the associated documents has been exhibited as Ex. PW2/X3. PW-2 has admitted it to be correct that the income tax returns for the assessment year 2016-17 and 2015-2016 do not specifically state the amount of the salary which was being paid to the deceased. By way of volunteer, PW-2 states that the copies of the Ledger account have already been placed on record. PW-2 has further stated that he New MACT Case Nos. 477475/16 & 477474/17 pages 11/36 maintained the ESI and Provident Fund account of his employees. PW-2 has further stated that the deceased Sh. Sanjeev Kumar was not falling under ESI and PF Scheme as his salary was more than that. PW-2 has further stated that ESI and PF is being deducted for the salary which is being paid as per the Minimum Wages Act.
23. PW-2 has further stated that as per the vouchers placed on record, the salary has been shown twice as the deceased used to receive the advance at one time and at the second time, his full salary was paid. PW-2 has further stated that at the time of handing over the advance amount, the signatures were not used to be taken on the revenue stamp.
24. The petitioners have examined the petitioner No.1 Sh. Nafe Singh as PW-3 and in his evidence by way of affidavit, he has reiterated and reaffirmed the stand as taken by the petitioners in the present claim petition. He has filed on record his affidavit as Ex. P-3; the photocopy of Aadhar Card of Sh. Sanjeev Kumar as Ex. PW3/1(OSR); the photocopy of Aadhar Card of Smt. Santra Devi as Ex. PW3/2(OSR); the photocopy of Aadhar Card of petitioner No.3 master Aayush Bheniwal as Ex. PW3/3(OSR); the photocopy of Aadhar of petitioner No.4 Master Vansh Bheniwal as Ex. PW3/4(OSR); the photocopy of PAN Card of Sh. Sanjeev Kumar as Ex. PW3/5(OSR); the photocopy of mark-sheet issued by CBSE pertaining to the Secondary School Examination of the deceased which shows his date of birth as 15.08.1976 as Ex. PW3/6 (OSR); the increment letter issued by Jai Balaji Security Services as Ex. PW3/7; the income tax returns for the assessment year 2013-2014; 2014- 2015 and 2015-2016 as Ex. PW3/8(colly); the salary vouchers for the year 2014-2015 as Mark A; certified copy of the FIR No. 143/2015 as Ex. PW3/9; certified copy of the entire challan pertaining to FIR no.
New MACT Case Nos. 477475/16 & 477474/17 pages 12/36 143/15 as Ex. PW3/10(colly); photocopy of the DL of the respondent No.2 Shri Pal as Mark A; photocopy of the registration certificate as Mark B; photocopy of the insurance policy as Mark C; photocopy of the DL of the deceased Sh. Sanjeev Kumar as Ex. PW3/14; copy of death certificate of deceased as Ex. PW3/15.
25. In the cross examination done by ld. Counsel for the insurance company; PW-3 has stated that he was not the eye witness to the accident in question. PW-3 has further stated that the Car in which the deceased was going was registered in the name of M/s Jai Balaji Security Register and he is the proprietor of the said firm. PW-3 has further stated that he has not taken any claim from the insurer of the car with regard to the death of his son and his daughter-in-law.
26. PW-3 has further stated that he and his son were living together as he was having only one son. PW-3 has further stated that before the accident, his son used to do all the household expenditure and after the accident, he is maintaining the family. PW-3 has further stated that after the death of his son, he has the income tax return on 30.09.2015. PW-3 has admitted it to be correct that his deceased son was maintaining his wife and children prior to the accident.
PART-F RESPONDENT'S EVIDENCE
27. The respondents have not led any evidence in their defence.
PART-G FINDINGS/CONCLUSION New MACT Case Nos. 477475/16 & 477474/17 pages 13/36
28. I have heard arguments addressed on behalf of the ld. Counsels for the parties and perused the record. I have gone through the testimony of the witnesses; entire material available on record. The petitioner No.1 Sh. Nafe Singh has been examined under the MCTAP and I have considered the statement of the petitioners under MCTAP as well.
My Issue-wise findings are as under :-
Issue No. (I) in both the abovesaid claim petitions i.e. 477475/16 and 477474/16
(i) Whether Sanjeev Kumar and Sameena Devi suffered fatal injuries in an accident that took place on 29.03.2015 at about 2:00 PM., due to rash and negligent driving of respondent No.1 of the vehicle No. HR-69A-9451 (Truck), owned by respondent No.2 and insured with respondent No.3? OPP.
29. The present petitions have been filed by the petitioners u/s 140 & 166 M. V. Act and the onus is upon the petitioners to prove the rash and negligent act of the respondent No.1.
30. The petitioner No.1 has examined himself as PW-3 and he has well explained the mode and manner of accident. He has reaffirmed and reiterated the averments made in the petition. During his entire cross examination, nothing has come out so as to discredit his testimony.
31. The respondents No.1 & 2 have taken the defence that the accident in question took place on account of the negligence of the deceased but no evidence has been led by them. They have failed to appear in the witness box and to adduce any evidence. As New MACT Case Nos. 477475/16 & 477474/17 pages 14/36 such, I have no hesitation to hold that the respondents No.1 & 2 have utterly failed to prove on record that the accident in question was not caused on account of the negligence of the respondent no.2 or that the accident in question was caused on account of the negligence of the deceased Sh. Sanjeev Kumar.
32. In the present case, as per the case of the petitioner, FIR No. 143/2015; dated 29.03.2015; PS Kharkhoda, District Sonipat, Haryana; u/s 279/304A IPC was registered.
33. In Bimla Devi & Ors vs. Himachal Road Transport Corporation & ors (2009) 13 SC 530, in Kaushnumma Beum and others v/s New India Assurance Company Limited, 2001 ACJ 421 SC, in National Insurance Co. Ltd. vs. Pushpa Rana cited as 2009 ACJ 287, it has been held that the negligence has to be decided on the touchstone of preponderance of probabilities and a holistic view is to be taken. It has been further held that the proceedings under the Motor Vehicle Act are not akin to the proceedings in a Civil Suit and hence, strict rules of evidence are not applicable.
34. Ld. Counsel for the respondent no.3 has argued that there was a head on collision in between the car of the deceased and the offending truck and that is why the deceased must be held liable for contributory negligence. Ld. Counsel for the insurance company has relied upon the authority cited as (2003) 6 SCC 137 titled as Tamil Nadu State Transport Corporation Tanjore vs. Natarajan & Ors., and the authority cited as II (2006) SLT 651 titled as Bijoy Kumar Dugar vs. Bidyadhar Dutta & Ors.
35. But in the case in hand, no evidence has been led at all either by the respondents No.1 & 2 or by the respondent no.3. The defence of contributory negligence has not been taken by respondents No.1 & 2 even in their written statement/reply, though, New MACT Case Nos. 477475/16 & 477474/17 pages 15/36 they have taken the stand that the accident in question was caused on account of the negligence of the deceased. Nothing has been proved on record, in the considered opinion of this Tribunal, by the respondents to show that the collision in between the car and the truck occurred on account of the negligence of the deceased. As such, to my mind, the respondents have utterly failed to prove even the defence of contributory negligence.
36. In the light of the abovesaid discussion, to my mind, the petitioners have been able to prove issue No.1 in their favour and accordingly, the issue No.1 is decided in favour of the petitioners.
Issue No. (ii) in MACT Petition no. 477475/16 TITLE AS NAFE SINGH VS. PAWAN KUMAR & ORS.
(ii) Whether the petitioners are entitled to compensation being sole LRs of the deceased persons? If so, to what amount and from whom? OPP
37. The petitioners have filed on record the copy of Marksheet of Secondary School examination of the deceased as Ex. PW3/6 and copy of PAN card of the deceased as Ex. PW3/5. In both the abovesaid documents, the date of birth of the deceased has been mentioned as 15.08.1976. The date of accident is 29.03.2015. Accordingly, the age of the deceased is taken as 39 years as on the date of accident.
38 In the petition, the petitioners have claimed that the deceased was working as Manager Operation in Jai Balaji Service (Regd.) and getting a salary of Rs.36,000/- per month. In order to prove the salary of the deceased, the petitioner has examined Sh. Sanjeev Kumar, employer of the deceased who brought on record the New MACT Case Nos. 477475/16 & 477474/17 pages 16/36 original salary vouchers slips of the deceased Sh. Sanjeev kumar for the period from 21.04.2013 to 08.04.2015 as Ex. PW2/1; ledger account maintained by M/s Jai Balaji Security Services pertaining to deceased for the period from 01.04.2013 to 31.03.2015.
39. Ld. Counsel for the insurance company has vehemently argued that the entire salary record of the deceased is fake and vogue because Jai Balaji Security Services (Regd.) is the proprietorship concern of none other but of Sh. Nafe Singh who is the father of the deceased. It has been further argued that the income tax returns pertaining to the year 2015-2016 have been filed after the date of the accident. It has been further argued that certain vouchers have been issued twice for the same month.
40. The first question which arises for determination is as to whether can it be said that Jai Balaji Security Services (Regd.) has been created only for the purposes of the present claim petition. Again, the question which arises for consideration is as to whether the deceased himself was filing his income tax returns for the assessment years even prior to the date of his accident only with a view to claim the compensation after his death. To my mind, the answer is in negative. It has to be seen that the abovesaid proprietorship concern is registered and the registration declaration of the ownership has been placed on record in the form of Ex. PW2/X2. It has to be further seen that Ex. PW2/X2 is dated 16.10.2001. The date of accident is 29.03.2015. Furthermore, it has to be seen that the proprietor Sh. Nafe Singh has filed on record the photocopy of his PAN number in the form of Ex. PW2/X1. The income tax returns pertaining to Jai Balaji Security Services have also been placed on record in the form of Ex. PW2/X3. Furthermore, it has to be seen that Sh. Nafe Singh in his cross examination has clearly stated that the car in which the New MACT Case Nos. 477475/16 & 477474/17 pages 17/36 deceased was travelling was registered in the name of Jai Balaji Security Services. No suggestion to the contrary has been given to Sh. Nafe Singh on this aspect of the matter. As such, to my mind, it cannot be said that Jai Balaji Security Services was created only for the purposes of the present claim petition.
41. Ld. Counsel for the insurance company has argued that the income tax returns of the deceased pertaining to the year 2015- 2016 have been filed after the date of accident. A perusal of Ex. PW3/8 i.e. the income tax returns of the deceased for the assessment year 2015-16 reveals that the same bears the date as 30.09.2015 which is apparently after the date of accident which is 29.03.2015. Accordingly, to my mind, it has been rightly argued by the Ld. Counsel for the insurance company that the annual salary to the tune of Rs. 4,32,000/- which has been shown in the abovesaid income tax returns for the year 2015-2016 cannot be taken into consideration.
42. But at the same time, the witness from Income Tax Department Sh. Neeraj Kumar Sinha as PW-1 has also filed on record the income tax returns of the deceased pertaining to the year 2013- 2014 which were filed on 25.12.2014. The annual salary received from Jai Balaji Security Services in the abovesaid income tax returns pertaining to the year 2013-2014 has been shown as Rs. 308700/-. To my mind, the abovesaid income tax returns for the year 2013-2014 can be taken as the correct base for computing the income of the deceased and the same are also corresponds more or less with the ledger account pertaining to the deceased of Jai Balaji Security services in which the monthly salary of the deceased has been shown as Rs.28200/- during the year 2013-2014.
43. Accordingly, after deducting the Tax @ 10%, I hereby try the annual income of the deceased as Rs. 2,77,830/- (Rs. 3,08,700/- -
New MACT Case Nos. 477475/16 & 477474/17 pages 18/36 Rs.30870/- i.e. 10% of Rs.308700/-). Thus, the monthly salary of the deceased comes to Rs.23,153/- (after rounding off Rs. 23152.5 which has been obtained after dividing Rs.277830/- by 12).
44. In the claim petition, the petitioners have mentioned that the petitioner No.1 is the father of the deceased, the petitioner No. 2 is the mother of the deceased and the petitioners No.3 & 4 are the minor sons of the deceased.
45. The petitioner No.1 in the cross examination has stated that he is the proprietor of Jai Balaji Security Services. The income tax returns have also been placed on record by Sh. Nafe Singh. Accordingly, the petitioner No.1 Sh. Nafe Singh cannot be treated as dependent upon the deceased.
46. As such, there were only three dependents on the deceased at the time of accident. In terms of the judgment of the Hon'ble Supreme Court of India in 'Sarla Verma Vs. DTC decided on 15.4.2009 in C.A. No. 3483/08', the deceased might have been spending one- third of Rs. 23,153/- on his personal expenses as he had left behind only three dependents on the deceased. Therefore, after deducting one- third towards personal expenses, the loss of dependency per month comes out to Rs. 15,435/- after rounding off Rs.15,435.33=( Rs. 23,153/- less Rs. 7717.66).
47. The Hon'ble Apex Court of the land in the latest judgment which has arisen out of SLP (Civil) No. 25590 of 2014 titled as National Insurance Company Limited vs. Praney Sethi & ors decided on 31.10.2017 has held as under:-
"61. In view of the aforesaid analysis, we proceed to record our conclusions:-
(i) The two-Judge Bench in Santosh Devi New MACT Case Nos. 477475/16 & 477474/17 pages 19/36 should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench.
(ii) As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent.
(iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years.
In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.
(iv) In case the deceased was self-
employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.
(v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore.
(vi) The selection of multiplier shall be New MACT Case Nos. 477475/16 & 477474/17 pages 20/36 as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment.
(vii) The age of the deceased should be the basis for applying the multiplier.
(viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs.
15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years."
After going through the facts and circumstances of the present case and the aforesaid case law laid down, I hereby grant 40% future prospects on the income of the deceased.
Thus, the monthly income of the deceased comes to Rs. 21,609/- ( Rs. 15,435/- + Rs.6174/- which is 40% of Rs. 15,435/-).
The appropriate multiplier applicable is '15' ( for the age group of 36 years to 40 years) as mentioned in Sarla Verma's judgment (Supra). Hence, the total loss of dependency comes out to be Rs. 38,89,620/- = (Rs. 21,609 x 12 x 15).
48. The Hon'ble Supreme Court of India in, "National Insurance Company Ltd. vs. Pranay Sethi & Ors. in Special Leave Petition (Civil) No.25590 of 2014 has granted a sum of Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- on account of loss of estate, loss of consortium and funeral expenses respectively. The aforesaid amounts are to be enhanced at the rate of 10% in every three years.
49. In view of the abovesaid judgment, I hereby award Rs. 15,000/- towards loss of estate and Rs.15,000/- towards funeral charges. As has been argued by ld. Counsel for the insurance company, the loss on account of consortium cannot be given as New MACT Case Nos. 477475/16 & 477474/17 pages 21/36 the wife of the deceased also expired in the same accident.
Therefore, in total, I hereby award a sum of Rs. 39,19,620/- (Rupees Thirty Nine Lakhs Nineteen Thousand Six Hundred Twenty Only ) =( Rs. 38,89,620/- + Rs. 30,000/-) in favour of the petitioners and against the respondents.
R E L I EF / ISSUE NO.3
50. I award Rs. 39,19,620/- (Rupees Thirty Nine Lakhs Nineteen Thousand Six Hundred Twenty Only) as compensation with interest at the rate of 9% per annum including interim award, if any from the date of filing the DAR/claim petition i.e. 02.02.2016 till the date of the payment of the award amount, in favour of the petitioners and against the respondents on account of their liability being joint and several. The petitioner No. 2 Smt. Santra Devi, the mother of the deceased shall have 20% share in the award amount and the petitioners No.3 & 4 who are the sons of the deceased shall have 40% share each in the award amount.
The petitioner No.1 has also been examined under MCTAP on 12.01.2018 and his statement has also been considered by this Tribunal.
51. This Tribunal is in receipt of the letter dated 08.11.2017 from Delhi State Legal Services Authority, which is annexed with the latest MCTAP as approved by the Hon'ble High Court of Delhi. The Hon'ble High Court of Delhi in Para no. 28 of new MCTAP has held as under:-
"Para no. 28 The Claims Tribunal shall, depending New MACT Case Nos. 477475/16 & 477474/17 pages 22/36 upon the financial status and financial need of the claimant (s), release such amount as may be considered necessary and direct the remaining amount to be kept in fixed deposits in phased manner (for example, if a sum of Rs.5,50,000/- has been awarded to the claimant, Rs.50,000/- may be released immediately and the remaining amount of Rs. 5,00,000/- may be kept in 10 fixed deposits of Rs.50,000/- each for a periods of six months, one year, one and half years, two years and so on till five years or one year, two years, three years and so on till ten years). The Claims Tribunal may also consider imposing following conditions with respect to the fixed deposits:-
(i) The interest on the fixed deposits be paid monthly to the Claimant(s).
(ii) The monthly interest be credited automatically in the saving account of the claimant (s).
(iii) Original fixed deposit receipts be retained by the bank in safe custody. However, a passbook of the FDRs be given to the claimant (s) along with the photocopy of the FDR. At the time of maturity, the fixed deposit amount shall be automatically credited in the savings bank account of the Claimant(s).
(iv) No cheque book be issued to the claimant (s) without permission of the Court. However, a photo identity card be issued to the claimant (s) and the withdrawal be permitted upon production of the identity card.
(v) No loan, advance or withdrawal be allowed on the New MACT Case Nos. 477475/16 & 477474/17 pages 23/36 fixed deposits without permission of the Court.
(vi) The Bank shall not permit any joint name (s) to be added in the savings bank account or fixed deposit accounts of the victim.
(vii) Half yearly statement of account be filed by the Bank in the Tribunal".
Since, the petitioners No.2 & 3 are minors, the amount of the FDRs shall not be released until their minority comes to an end.
Keeping in view the entirety of the facts and circumstances involved in the present case and the abovesaid guidelines laid down by the Hon'ble High Court of Delhi, the respondent no.3 is directed to deposit the amount of Rs. 39,19,620/- (Rupees Thirty Nine Lakhs Nineteen Thousand Six Hundred Twenty Only) as stated herein above with SBI, Tis Hazari Courts, Delhi, out of which the amount of Rs. 3,19,620/- shall be released to the petitioner No.2 Santra Devi keeping in view the submission of the Ld. Counsel for the petitioners and that of the respondents as well and in the entirety of the facts.
The rest of the amount of Rs. 36,00,000/- shall be kept in 72 equal FDR's for an amount of Rs. 50,000/- each for a period of six month, one year, one and a half years, two years, two and a half years, three years and so on with cumulative interest in accordance with the aforesaid shares of the petitioners.
The abovesaid conditions as laid down in MCTAP shall be adhered to by SBI, Tis Hazari Courts, Delhi in respect to the FDR's.
New MACT Case Nos. 477475/16 & 477474/17 pages 24/36 APPORTIONMENT OF LIABILITY
52. Since the offending vehicle, was admittedly insured with the respondent No.3, the respondent No.3 is hereby directed to deposit the award amount in favour of the petitioners with SBI, Tis Hazari Courts, Delhi within a period of 30 days from the date of passing of this award together with the interest as stated herein above under the intimation to this court and under intimation to the petitioners. In case of any delay, it shall be liable to pay interest at the rate of 12% per annum for the period of delay.
A separate file be prepared for compliance report by the Nazir and put up the same on 28.02.2018.
A copy of this award be given to the insurance company as well as to the petitioners free of cost.
A copy of this award be sent to the concerned Ld. Metropolitan Magistrate as well as DSLSA as per the provisions of the MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE (MCTAP).
File be consigned to Record Room.
Issue No. (ii) in MACT Petition no. 477474/16 TITLE AS NAFE SINGH VS. PAWAN KUMAR & ORS.
53. Perusal of the record reveals that the petitioners have filed on record the Aadhar Card of the deceased Smt. Sameena Devi in which the year of birth of the deceased has been mentioned as 1981. The date of accident is 29.03.2015. Accordingly, the age of the deceased is taken as 34 years as on the date of accident.
54. The petitioners in the claim petition has stated that the deceased Smt. Sameena Devi was a house wife and not earning New MACT Case Nos. 477475/16 & 477474/17 pages 25/36 anything. Nothing has been placed on record by the petitioners to show the educational qualifications of the deceased Smt. Sameena Devi.
55. The formula for assessing the loss of dependency on account of gratuitous services rendered by a housewife has been given in MAC App. No.89/2015 in case titled as Shriram General Insurance Company Ltd. vs. Shyam Sunder & Ors decided on 28.01.2015 and in MAC App. No. 590/2011 in case titled as Royal Sundaram Alliance Insurance Co. Ltd. vs. Master Manmeet Singh & Ors. Decided on 30.01.2012.
56. In these circumstances, the income of the deceased can very well be assessed on the basis of the chart available in the Minimum Wages Act. The date of accident was 29.03.2015 on which the minimum wages for Unskilled person were Rs. 8632/- p.m.
57. In the claim petition, the petitioners have mentioned that the petitioner No.1 is the father-in-law of the deceased, the petitioner No. 2 is the mother-in-law of the deceased and the petitioners No.3 & 4 are the minor sons of the deceased.
58. It has already been discussed herein above that the petitioner No.1 cannot be treated as the dependent upon the deceased. As such, there were only three dependents on the deceased at the time of accident.
59. Ld. Counsel for the insurance company has relied upon the orders dated 25.02.2016 passed in MAC App. No. 1177/2014 & CM Appl. 21175/2014 titled as Reliance General Insurance Co. ltd. vs. Murgan & Ors. wherein, in para no. 5, the hon'ble High Court of Delhi has held as under:-
New MACT Case Nos. 477475/16 & 477474/17 pages 26/36 "5. It is noted that in taking above view in Royal Sundaram Alliance Insurance Co. Ltd. (supra), the learned single judge did not consider the dictum in Sarla Verma (supra). Therefore, there is no reason why in calculation of loss of dependency in a case arising out of death of housewife there should be no deduction towards personal and living expenses. The general rule will have to apply to such cases as well."
In terms of the ratio of the said authority and in terms of the judgment of the Hon'ble Supreme Court of India in 'Sarla Verma Vs. DTC decided on 15.4.2009 in C.A. No. 3483/08', the deceased might have been spending one- third of Rs. 8632/- on her personal expenses as she had left behind only three dependents on the deceased. Therefore, after deducting one- third towards personal expenses, the loss of dependency per month comes out to Rs. 5755/- after rounding off Rs.5754.67= (Rs. 8632/- less Rs. 2877.33).
60. The ratio of the authority titled as National Insurance Company Limited vs. Praney Sethi & ors decided on 31.10.2017 by Hon'ble Apex Court of the land has already been discussed herein above.
61. After going through the facts and circumstances of the present case and the aforesaid case law laid down, I hereby grant 40% future prospects on the income of the deceased.
62. Thus, the monthly income of the deceased comes to Rs. 8057/- (Rs. 5755/- + Rs.2302/- which is 40% of Rs. 5755/-).
New MACT Case Nos. 477475/16 & 477474/17 pages 27/36
63. The appropriate multiplier applicable is '16' ( for the age group of 31 years to 35 years) as mentioned in Sarla Verma's judgment (Supra). Hence, the total loss of dependency comes out to be Rs. 15,46,944/- = (Rs. 8057 x12 x 16).
64. The Hon'ble Supreme Court of India in, "National Insurance Company Ltd. vs. Pranay Sethi & Ors. in Special Leave Petition (Civil) No.25590 of 2014 has granted a sum of Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- on account of loss of estate, loss of consortium and funeral expenses respectively. The aforesaid amounts are to be enhanced at the rate of 10% in every three years.
65. In view of the abovesaid judgment, I hereby award Rs. 15,000/- towards loss of estate and Rs.15,000/- towards funeral charges. The compensation on account of loss of consortium is not being awarded as the husband of the deceased also expired in the same accident.
Therefore, in total, I hereby award a sum of Rs. 15,76,944/- (Rupees Fifteen Lakhs Seventy Six Thousand Nine Hundred and Forty Four Only ) =( Rs. 15,46,944/- + Rs. 30,000/-) in favour of the petitioners and against the respondents.
R E L I EF / ISSUE NO.3
66. I award Rs. 15,76,944/- (Rupees Fifteen Lakhs Seventy Six Thousand Nine Hundred and Forty Four Only ) as compensation with interest at the rate of 9% per annum including interim award, if any from the date of filing the DAR/claim petition i.e. 02.02.2016 till the date of the payment of the award amount, in favour of the petitioners and against the respondents on account of their liability being joint and several. The petitioner No. 2 shall have 20% New MACT Case Nos. 477475/16 & 477474/17 pages 28/36 share in the award amount, the petitioners No.3 & 4 shall have 40% share each in the award amount.
67. The petitioner No.1 has also been examined under MCTAP on 12.01.2018 and his statement has also been considered by this Tribunal.
68. Para no. 28 of the new MCTAP has already been reproduced herein above while awarding the compensation in the claim petition bearing No. 477475/16.
69. Keeping in view the entirety of the facts and circumstances involved in the present case and the abovesaid guidelines laid down by the Hon'ble High Court of Delhi, the respondent no.3 is directed to deposit the amount of Rs. 15,76,944/- (Rupees Fifteen Lakhs Seventy Six Thousand Nine Hundred and Forty Four Only ) as stated herein above with SBI, Tis Hazari Courts, Delhi, out of which the amount of Rs. 1,76,944/- shall be released to the petitioner No.2 Smt. Santra Devi keeping in view the submission of the Ld. Counsel for the petitioners and that of the respondents as well and in the entirety of the facts.
70. The rest of the amount of Rs. 14,00,000/- shall be kept in 28 equal FDR's for an amount of Rs. 50,000/- each for a period of six month, one year, one and a half years, two years, two and a half years, three years and so on till 14 years with cumulative interest in accordance with the aforesaid shares of the petitioners.
71. The abovesaid conditions as laid down in MCTAP shall be adhered to by SBI, Tis Hazari Courts, Delhi in respect to the FDR's. As stated herein above, since the petitioners no. 3 & 4 are minors, the amount of their FDRs shall not be released until they reach the age of majority.
New MACT Case Nos. 477475/16 & 477474/17 pages 29/36 APPORTIONMENT OF LIABILITY
72. Since the offending vehicle, was admittedly insured with the respondent No.3, the respondent No.3 is hereby directed to deposit the award amount in favour of the petitioners with SBI, Tis Hazari Courts, Delhi within a period of 30 days from the date of passing of this award together with the interest as stated herein above under the intimation to this court and under intimation to the petitioners. In case of any delay, it shall be liable to pay interest at the rate of 12% per annum for the period of delay.
A separate file be prepared for compliance report by the Nazir and put up the same on 28.02.2018.
A copy of this award be given to the insurance company as well as to the petitioners free of cost.
A copy of this award be sent to the concerned Ld. Metropolitan Magistrate as well as DSLSA as per the provisions of the MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE (MCTAP).
File be consigned to Record Room.
Announced in the open court
On 16th of January, 2018 (RAJ KUMAR)
P.O.MACT (WEST-01)
Delhi (16.01.2018)
New MACT Case Nos. 477475/16 & 477474/17 pages 30/36 FORM -IVA SUMMARY OF COMPUTATION OF AWARD AMOUNT IN DEATH CASES TO BE INCORPORATED IN THE AWARD
1. Date of accident. : 29.03.2018
2. Name of the deceased : Sh. Sanjeev Kumar
3. Age of the deceased : 39 years
4. Occupation of the deceased :- Manager Operation
5. Income of the deceased : Rs.23,153/- per month
6. Name, age and relationship of legal representative of deceased:-
S. Name Age Relation
No.
(i) Smt. Santra Devi Not Mother of the deceased
mentioned
(ii) Master Aayush Not Son of the deceased
Beniwal mentioned
(iii) Master Vansh Not Son of the deceased
Beniwal mentioned
New MACT Case Nos. 477475/16 & 477474/17 pages 31/36 Computation of Compensation Sr. No. Heads Awarded by the Claim Tribunal
7. Income of the deceased(A) Rs. 23,153/-
8. Add-Future Prospects (B) 40%
9. Less-Personal expenses 1/3rd deduction has been done of the deceased(C)
10. Monthly loss of Rs.21,609/-
dependency[(A+B)-C=D]
11. Annual loss of dependency Rs.2,59,308/-
(Dx12) (Rs.21,609/- x 12)
12. Multiplier(E) 15
13. Total loss of dependency Rs. 38,89,620/- (Rs.2,59,308/- x
(Dx12xE= F) 15)
14. Medical Expenses(G) NIL
15. Compensation for loss of NIL
love and affection(H)
16. Compensation for loss of NIL
consortium(I)
17. Compensation for loss of Rs.15,000/-
estate(J)
18. Compensation towards Rs.15,000/-
funeral expenses(K)
19. TOTAL COMPENSATION Rs.39,19,620/-
(F+G+H+I+J+K=L)
20. RATE OF INTEREST 9% per annum
AWARDED
21. Interest amount up to the Rs. 6,89,863.12/- ( 23 months
date of award (M) and 14 days)
22. Total amount including Rs. 46,09,483.12/-
interest (L + M)
23. Award amount released Rs. 3,19,620/-
24. Award amount kept in Rs.36,00,000/-
FDRs
25. Mode of disbursement of Mentioned in the award
New MACT Case Nos. 477475/16 & 477474/17 pages 32/36 the award amount to the claimant (s). (Clause 29)
26. Next date for compliance 28.02.2018 of the award. (Clause 31) (RAJ KUMAR) P.O.MACT (WEST-01) Delhi (16.01.2018) New MACT Case Nos. 477475/16 & 477474/17 pages 33/36 FORM -IVA SUMMARY OF COMPUTATION OF AWARD AMOUNT IN DEATH CASES TO BE INCORPORATED IN THE AWARD
1. Date of accident. : 29.03.2018
2. Name of the deceased : Smt. Sameena Devi
3. Age of the deceased : 34 years
4. Occupation of the deceased :- Housewife
5. Income of the deceased : Rs.8632/- per month
6. Name, age and relationship of legal representative of deceased:-
S. Name Age Relation
No.
(i) Smt. Santra Devi Not Mother-in-law of the
mentioned deceased
(ii) Master Aayush Not Son of the deceased
Beniwal mentioned
(iii) Master Vansh Not Son of the deceased
Beniwal mentioned
New MACT Case Nos. 477475/16 & 477474/17 pages 34/36 Computation of Compensation Sr. No. Heads Awarded by the Claim Tribunal
7. Income of the deceased(A) Rs. 8632/-
8. Add-Future Prospects (B) 40%
9. Less-Personal expenses 1/3rd deduction has been done of the deceased(C)
10. Monthly loss of Rs.8057/-
dependency[(A+B)-C=D]
11. Annual loss of dependency Rs.96,684/-
(Dx12) (Rs.8057/- x 12)
12. Multiplier(E) 16
13. Total loss of dependency Rs. 15,46,944/- (Rs.96,684/- x
(Dx12xE= F) 16)
14. Medical Expenses(G) NIL
15. Compensation for loss of NIL
love and affection(H)
16. Compensation for loss of NIL
consortium(I)
17. Compensation for loss of Rs.15,000/-
estate(J)
18. Compensation towards Rs.15,000/-
funeral expenses(K)
19. TOTAL COMPENSATION Rs.15,76,944/-
(F+G+H+I+J+K=L)
20. RATE OF INTEREST 9% per annum
AWARDED
21. Interest amount up to the Rs. 2,77,542.14 ( 23 months
date of award (M) and 14 days)
22. Total amount including Rs. 18,54,486.14
interest (L + M)
23. Award amount released Rs. 1,76,944/-
24. Award amount kept in Rs.14,00,000/-
FDRs
25. Mode of disbursement of Mentioned in the award
New MACT Case Nos. 477475/16 & 477474/17 pages 35/36 the award amount to the claimant (s). (Clause 29)
26. Next date for compliance 28.02.2018 of the award. (Clause 31) (RAJ KUMAR) P.O.MACT (WEST-01) Delhi (16.01.2018) New MACT Case Nos. 477475/16 & 477474/17 pages 36/36 New MACT Case No. 477475/16 and 477474/16 16.01.2018 Present None Award is passed separately.
File be consigned to Record Room.
A separate file be prepared for compliance report by the Nazir and put up the same on 28.02.2018.
A copy of this award be sent to the concerned Ld. Metropolitan Magistrate as well as DSLSA as per the provisions of the MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE (MCTAP).
( RAJ KUMAR ) P.O. MACT (WEST-01) Delhi 16.01.2018 New MACT Case Nos. 477475/16 & 477474/17 pages 37/36