Delhi District Court
Lrs Of Prem Shankar vs Santosh Kumar on 3 December, 2024
LRs of Prem Shankar Kumar vs. Santosh Kumar
IN THE COURT OF MS. SHAMA GUPTA, PRESIDING
OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNAL,
NORTH WEST DISTRICT, ROHINI COURTS, DELHI
MACT no. 199/17
UNIQUE ID No.: DLNW01-000951-2017
LRs of Prem Shankar Kumar:
1. Geetanjali Gond W/o Sh. Prem Shankar Kumar
R/o C-29, Chander Shekhar Marg,
Shalimar Village, Shalimar Bagh, North West,
Delhi-110088.
2. Priyanshi D/o Sh. Prem Shankar Kumar
3. Aditya Ray S/o Late Sh. Prem Shankar Kumar
Both R/o Village Baha Chowki, Post Baha Chowki,
Munger, Bihar-811202.
4. Anshuya Devi (mother) w/o Sh. Wakil Mandal
R/o Baha Chowki, Munger, Bihar-811202.
........ Petitioners/claimants
Versus
1. Santosh Kumar
S/o Sh. Chhote Lal
R/o D-39, Sharadhanand
Colony, Swaroop Nagar, Delhi
....... Driver/R1
2. Maa Anapurna Transport Agency
84/1B, Topsia Road, Kolkatta.
........Owner/R2
3. Universal Sampo General Insurance
Company Ltd. IT Park, Plot no. EL-94
TTC Industrial Area, MIDC, Mahape
Navi Mumbai.
....... Insurance Company/R3
..... Respondents
MACT no. 199/17 Page 1 of31
LRs of Prem Shankar Kumar vs. Santosh Kumar
DATE OF INSTITUTION : 02.02.2017
DATE OF RESERVING JUDGMENT : 30.11.2024
DATE OF PRONOUNCEMENT : 03.12.2024
FORM - V
COMPLIANCE OF THE PROVISIONS OF THE MODIFIED
CLAIMS TRIBUNAL AGREED PROCEDURE TO BE
MENTIONED IN THE AWARD AS PER FORMAT
REFERRED IN THE ORDER PASSED BY THE HON'BLE
DELHI HIGH COURT IN FAO 842/2003 RAJESH TYAGI Vs.
JAIBIR SINGH & ORS. VIDE ORDER DATED 07.12.2018.
1. Date of the accident 07.09.2016
2. Date of intimation of the accident by the 02.02.2017
investigating officer to the Claims
Tribunal
3. Date of intimation of the accident by the 02.02.2017
investigating officer to the insurance
company.
4. Date of filing of Report under section Not mentioned in
173 Cr.P.C. before the Metropolitan the DAR
Magistrate
5. Date of filing of Detailed Accident 02.02.2017
Information Report (DAR) by the
investigating Officer before Claims
Tribunal
6. Date of Service of DAR on the 02.02.2017
Insurance Company
7. Date of service of DAR on the claimant 02.02.2017
(s).
8. Whether DAR was complete in all Yes
respects?
9. If not, whether deficiencies in the DAR No
removed later on?
MACT no. 199/17 Page 2 of31
LRs of Prem Shankar Kumar vs. Santosh Kumar
10. Whether the police has verified the Yes
documents filed with DAR?
11. Whether there was any delay or Yes
deficiency on the part of the
Investigating Officer? If so, whether
any action/direction warranted?
12. Date of appointment of the Designated 02.02.2017
Officer by the insurance Company.
13. Name, address and contact number of Sh. Ankit Kalra,
the Designated Officer of the Insurance Ld. Counsel for
Company. the insurance
company
14. Whether the designated Officer of the No
Insurance Company submitted his
report within 30 days of the DAR?
(Clause 22)
15. Whether the insurance company No
admitted the liability? If so, whether the
Designated Officer of the insurance
company fairly computed the
compensation in accordance with law.
16. Whether there was any delay or No
deficiency on the part of the Designated
Officer of the Insurance Company? If
so, whether any action/direction
warranted?
17. Date of response of the claimant (s) to N/A
the offer of the Insurance Company .
18. Date of the Award 03.12.2024
19. Whether the award was passed with the No
consent of the parties?
20. Whether the claimant(s) were directed Yes
to open saving bank account(s) near
their place of residence?
21. Date of order by which claimant(s) were 29.03.2019
directed to open saving bank account (s)
near his place of residence and produce
MACT no. 199/17 Page 3 of31
LRs of Prem Shankar Kumar vs. Santosh Kumar
PAN Card and Aadhar Card and the
direction to the bank not issue any
cheque book/debit card to the
claimant(s) and make an endorsement to
this effect on the passbook(s).
22. Date on which the claimant (s) 06.06.2023
produced the passbook of their saving
bank account near the place of their
residence along with the endorsement,
PAN Card and Aadhar Card?
23. Permanent Residential Address of the As mentioned
Claimant(s) above
24. Details of saving bank account(s) of the Petitioner
claimant(s) and the address of the bank Geetanjali Gond
with IFSC Code savings bank A/c
No.
15281000000961
Petitioner
Priyanshi-152810
00001720,
Petitioner-Aditya
Ray
15281000001742
, Petitioner-
Anshuya Devi-
15281000001707
all with Punjab &
Sind Bank,
Branch Betwan
Bazar,
Molsaritala
Kaura Maidan,
Near Arya Bazar,
Munger, Bihar
IFSC :
PSIB0021528
25. Whether the claimant(s) saving bank Yes
account(s) is near his place of
residence?
26. Whether the claimant(s) were examined Yes
MACT no. 199/17 Page 4 of31
LRs of Prem Shankar Kumar vs. Santosh Kumar
at the time of passing of the award to
ascertain his/their financial condition.
27. Account number/CIF No, MICR 41065170303,
number, IFSC Code, name and branch 110002427,
of the bank of the Claims Tribunal in SBIN0010323,
which the award amount is to be SBI, Rohini
deposited/transferred. (in terms of order Courts, Delhi
dated 18.01.2018 of Hon'ble Delhi High
Court in FAO 842/2003 Rajesh Tyagi vs
Jaibir Singh.
JUDGMENT
1. The present claim proceedings have emanated from Detailed Accident Report (hereinafter referred to as DAR), as filed on 02.02.2017, with reference to FIR No. 492/16, registered at PS Subhash Place, Delhi, in respect of commission of offence of causing death, not amounting to culpable homicide, by rash and negligent driving of a truck, bearing registration number HR-38Q-1663, on a public road, punishable under Section 279/304A of Indian Penal Code (hereinafter referred as IPC). Subsequently, a final report under Section 173 of Code of Criminal Procedure, 1973 (herein afterwards referred as Cr.P.C), was filed against respondent no. 1, namely Santosh Kumar, for the alleged commission of offence under Section 279/304A of IPC.
2. The brief facts of the case, as discernible from the DAR and documents of the legal heirs/legal representatives of the deceased (hereinafter referred as LR's of the deceased/ MACT no. 199/17 Page 5 of31 LRs of Prem Shankar Kumar vs. Santosh Kumar petitioners/ claimants), are that, on 07.09.2016, at about 4:15 p.m., when the deceased was going on his Scooty, bearing registration no. DL-8SBJ-9254, (herein after referred as victim's vehicle) and he reached in front of WZ-411, Village Shakur Pur, Delhi, he was hit from behind, by a truck, bearing registration no. HR-38Q-1663 (herein after referred as offending vehicle). It was further averred that the offending vehicle was driven by its driver Santosh Kumar (herein after referred as respondent no.1/R1), in a rash and negligent manner and without caring traffic rules. It was further averred that as a result of the said impact, the deceased fell down on the road and sustained fatal injuries, after which, the deceased was taken to Bhagwan Mahavir Hospital, where he was declared 'brought dead', vide MLC No. 2983/2016.
3. It was further stated that the postmortem on the body of the deceased was conducted at Dr. Baba Saheb Ambedkar Hospital, Rohini, Delhi, vide PMR No. 637/16, dated 08.09.2016, wherein cause of death was stated to be due to subdural and subarachnoid haemorrhage, secondary to head injury and all the injuries were stated to be ante- mortem in nature, fresh in duration, prior to death and could be sustained during run over, in a road traffic accident.
4. As per DAR, at the time of accident, the offending vehicle was driven by R1, and it was registered in the name of MACT no. 199/17 Page 6 of31 LRs of Prem Shankar Kumar vs. Santosh Kumar Maa Anapurna Transport Agency (hereinafter referred as registered owner of the offending vehicle/R2). Further, as per DAR, the offending vehicle was insured with Universal Sompo General Insurance Company Ltd. (hereinafter referred as the insurance company/R3), vide policy number 2315/55869707/00/000, valid for the period 19.02.2016 till 18.02.2017.
5. The respondent no.1/driver of the offending vehicle and R2/owner failed to file written statement on record therefore, they deemed to have admitted the contents of the DAR. Further, R1 and R2 were proceeded Ex-parte, vide order dated 02.04.2018.
6. In the written statement filed by R3/insurance company, it was averred that wrong FIR was registered against the driver of the offending vehicle, in collusion with the police officials and the petitioners. It was further averred that the offending vehicle has been falsely implicated in the case accident and it was the victim/deceased, who was rash and negligent, in driving his vehicle hence, R3 is not liable to pay any compensation to the petitioners.
7. From the pleadings of the parties, following issues were framed by the Learned Predecessor, vide order dated 02.04.2018:-
MACT no. 199/17 Page 7 of31 LRs of Prem Shankar Kumar vs. Santosh Kumar
1. Whether on 07.09.2016 at about 4:10 p.m. at Ring Road towards Punjabi Bagh, in front of WZ-411, Shakurpur Village, Delhi, one truck bearing registration no. HR-38Q-1663, which was being driven rashly and negligently by Santosh Kumar and hit the scooty bearing registration no. DL-8SBJ-9254, and caused death of Prem Shankar ? OPP.
2. Whether petitioners are entitled to compensation, if so, to what amount and from whom? OPP.
3. Relief.
8. After framing of issues, opportunities were given to all the parties, to prove their respective averments, by leading evidence in support of the same.
9. In support of their claim petition, the petitioners examined ASI Ravinder as PW1, who deposed that on 07.09.2016, he was posted at PS Subhash Place and was performing his duty, at ERV i.e. patrolling vehicle. PW1 further deposed that at about 4:10 p.m., he was going towards Shakurpur side, from Punjabi Bagh and when he reached in front of WZ-411, Village Shakurpur, he saw that a truck bearing registration no. HR-38Q-1663, had hit a scooty bearing registration no. DL-8SDJ-9254, from behind. PW1 further deposed that the truck was driven by its driver, in a rash and negligent manner. PW1 further deposed that he caught MACT no. 199/17 Page 8 of31 LRs of Prem Shankar Kumar vs. Santosh Kumar hold the driver of the said truck and handed over R1 to PCR officials. PW1 further deposed that his statement Ex. PW1/A, was recorded by the IO at the spot.
10. PW1 was duly cross examined by Ld. Counsel for R3/insurance company, wherein he deposed that the police was not called by him but, the police was called by a public person. PW1 admitted that at the time of accident, several vehicles were moving on the road and distance between his vehicle and the spot was 15-20 feet. PW1 further deposed that the place of accident was a four lane road. He admitted that the police recorded his statement U/s 161 Cr.P.C. He further admitted that truck no. HR-38Q-1663, hit the scooty no. DL-8SBJ-9254 from behind.PW1 denied the suggestion that he had falsely stated to the police, that the offending vehicle was coming at a very fast speed, to benefit the petitioners. PW1 denied the suggestion that the accident had taken place, due to sole negligence of the deceased. PW1 further admitted that in Ex. PW1/A, there is no mention that scooty driver was wearing helmet or not. He denied the suggestion that as he was not present at the spot, that is why, he did not make any call at 100 number. He admitted that name, mobile number etc., of the person, who made call at 100 number, is mentioned in the PCR form. PW1 further deposed that PCR van shifted the injured to the hospital. He further deposed that PCR van reached at the spot, within 2-4 minutes of the accident. PW1 denied the suggestion that MACT no. 199/17 Page 9 of31 LRs of Prem Shankar Kumar vs. Santosh Kumar PCR van reached at the spot very late.
11. The petitioners further examined petitioner no. 1 namely Gitanjali Gond, as PW2. She has led her evidence by way of affidavit Ex. PW2/A. Her deposition qua the accident in question, is reiteration of the contents of the DAR. PW1 further deposed that the deceased was B.Com pass and employed as an accountant, since 2007, with Karan Metawares Pvt Ltd., at B-69/1, Wazirpur Industrial Area, Delhi. PW1 further deposed that at the time of his death, the deceased was earning of Rs. 30,000/- per month, by doing overtime, including monthly salary of Rs. 16,000/-. She further deposed that the deceased left behind her, his daughter namely Priyanshi, aged 8 years, his minor son namely Aditya Ray, aged 7 years and his mother namely Smt. Anshuya, aged 52 years, as his legal heirs. She has placed reliance upon photocopies of Aadhar cards of deceased as well as all the petitioners as Ex. PW1/1 (OSR), photocopy of educational certificate of the deceased as Ex. PW1/2 (OSR) and photocopy of salary certificate of deceased as Mark X.
12. PW2 was duly cross examined by Ld. Counsel for R3, wherein she deposed that she is a housewife and residing at Bhagalpur in Bihar. She deposed that her husband was employed with Mr. Sanjay Seth, in Wazirpur, Delhi. PW2 deposed that she has not filed any appointment letter of her husband on record. PW1 deposed that the date of accident MACT no. 199/17 Page 10 of31 LRs of Prem Shankar Kumar vs. Santosh Kumar is 07.09.2016 and she is not an eye witness of the accident. PW2 further deposed that her uncle Naval Kishore informed her about the accident. PW2 further deposed that her husband was having a saving account but, she does not know the name of branch and she has not filed any copy of pass book and statement of last three years, on record. PW1 further deposed that her husband was having a driving license, at the time of accident and same is on record. She further deposed that no one from her family, was employed on compassionate ground, by the employer of her deceased husband. PW1 further deposed that Mr. Sanjay Seth has paid two months salary and bonus for Deepawali to her. She denied the suggestion that the accident has been caused, due to negligence of the deceased. She further denied the suggestion that vehicle number as given in her affidavit, was not involved in the alleged accident. PW1 further denied the suggestion that her husband was unemployed and was not earning anything. She further denied the suggestion that they were not dependent upon the income of her deceased husband. She further denied the suggestion that documents filed by her, in the claim petition are forged and fabricated.
13. The petitioners further examined Sh. Sanjay Goel as PW3.
PW3 has placed on record original salary certificate and attested copy of salary register, of Prem Shankar Kumar, for the month of August 2016 and he exhibited the same as Ex. PW3/1 (colly.) (OSR) and Ex. PW3/2 (colly.) MACT no. 199/17 Page 11 of31 LRs of Prem Shankar Kumar vs. Santosh Kumar
14. PW3 was duly cross examined by Ld. Counsel for R3/insurance company, wherein, he deposed that he is the Director of M/s Karan Metawares Pvt. Ltd., but he has not brought the documents i.e memorandum of company and salary record of employees, for the last six months, to show that he is the Director of above said company. He deposed that mode of salary was in cash and they maintain the record regarding the same. PW3 further deposed that they were not maintaining any salary payment register, as the salary is paid in cash and no separate record was maintained for such cash payment. He further deposed that copy of salary record of deceased Ex. PW3/R3-X1, is without stamp of the company. He deposed that Ex. PW3/R3-X1 was taken by him from his accountant. He further admitted that his accountant has maintained the entire records of all employees, working in his company. He further admitted that he has not filed any certificate U/s 65 B of Indian Evidence Act, in support of Ex. PW3/R3- X1. He admitted that not even once, as per record, payment of Rs. 16,000/- per month was given to the deceased. However, he voluntarily deposed that the deceased was paid per day of his work i.e. Rs. 16,000/-, divided by 26 days in a month. PW3 further denied the suggestion that he has filed false and fabricated documents.
15. The respondents failed to lead any evidence in their MACT no. 199/17 Page 12 of31 LRs of Prem Shankar Kumar vs. Santosh Kumar defence and vide order dated 24.05.2022, evidence of respondents was closed.
16. This Tribunal has heard the final arguments as advanced by Sh. Gaurav Yadav, Learned counsel for the petitioners and Sh. Ankit Kalra, Learned counsel for R3.None has appeared on behalf of R1 and R2, to address final arguments.
17. On appreciation of evidence as adduced by the parties, in support of their respective versions, the issue-wise findings of this Tribunal are reproduced herein below:
ISSUE No. 1Whether on 07.09.2016 at about 4:10 p.m. at Ring Road towards Punjabi Bagh, in front of WZ-411, Shakurpur Village, Delhi, one truck bearing registration no. HR-38Q-1663, which was being driven rashly and negligently by Santosh Kumar and hit the scooty bearing registration no. DL-8SBJ-9254, and caused death of Prem Shankar ? OPP.
18. The onus of proving this issue, on preponderance of probabilities, was upon the petitioners/claimants. For deciding the present issue, the testimony of PW1 is relevant, being an eyewitness. PW1 deposed that on 07.09.2016, he was posted at PS Subhash Place and was performing his duty, at ERV i.e. patrolling vehicle. PW1 further deposed that at about 4:10 p.m., he was going towards Shakurpur side, from Punjabi Bagh and when he reached in front of WZ-411, Village Shakurpur, he saw that a truck bearing MACT no. 199/17 Page 13 of31 LRs of Prem Shankar Kumar vs. Santosh Kumar registration no. HR-38Q-1663, had hit a Scooty, bearing registration no. DL-8SDJ-9254, from behind. PW1 further deposed that the truck was driven by its driver, in a rash and negligent manner. PW1 further deposed that he caught hold the driver of the said truck and handed over R1 to PCR officials. PW1 further deposed that his statement Ex. PW1/A, was recorded by the IO at the spot.
19. R1 and R2 failed to appear before this Tribunal and further, no evidence has been adduced by the respondents, to prove that R1 was not negligent in driving the offending vehicle or that the accident has not taken place, due to rash and negligent driving of the offending vehicle by R1.
20. PW1 was although cross-examined by Ld. Counsel for R3/insurance company but, no suggestion was put to PW1, that no accident had taken place, with the offending vehicle, or due to rash and negligent driving of the offending vehicle by R1. Merely suggestion was given to PW1, that the accident has taken place, as the deceased was negligent, in driving his vehicle, which PW1 has denied.
21. Thus, from the cross examination of PW1, even the insurance company/R3 failed to elicit any admission, so as to negate the factum of death of the deceased Prem Shankar Kumar, in a road traffic accident, due to rash and negligent driving of the offending vehicle by R1. Mere MACT no. 199/17 Page 14 of31 LRs of Prem Shankar Kumar vs. Santosh Kumar putting suggestions do not prove the averments made by any party in the pleadings. Even otherwise also, as R1 failed to contest the present claim petition and also failed to elicit any admission, by the cross examination of PW1, therefore, the testimony of PW1 went un-rebutted and the same proves that the accident has taken place, due to rash and negligent driving of the offending vehicle by R1. The testimony of PW1 stands further corroborated by the criminal case record, which includes the charge sheet, as filed by the IO, in which R1 was charge sheeted for the commission of offence U/s 279/304A IPC.
22. In view of above said discussion, criminal case record including charge sheet and testimony of PW1 ASI Ravinder, it has been duly proved by the petitioners, on preponderance of probabilities, that the case accident had been caused by R1, who was driving the offending vehicle, bearing registration no. HR-38Q-1663, in a rash and negligent manner, at the above said date, time and place and had hit the Scooty bearing registration no. DL-8SDJ-9254, of deceased from behind, due to which, the victim Prem Shankar Kumar has sustained fatal injuries.
Issue no.1 is decided in favour of petitioners and against the respondents accordingly.
ISSUE No. 2MACT no. 199/17 Page 15 of31 LRs of Prem Shankar Kumar vs. Santosh Kumar Whether petitioners are entitled to compensation, if so, to what amount and from whom?OPP
23. In view of the findings of this Tribunal, qua issue no.1 regarding negligence of R1, resulting in the occurrence of the case accident, this Tribunal is of the considered opinion that the petitioners/claimants are entitled to compensation on the account of fatal injuries, sustained by the deceased Prem Shankar Kumar, in the above-mentioned road traffic accident. This Tribunal shall now examine the entire evidence including the documents of the petitioners/claimants, for the purpose of arriving at a finding about the quantum of compensation, to which the petitioners/claimants are entitled.
24. Section 168 of the Act enjoins the Claims Tribunal to hold an inquiry into the claim to make an award determining the amount of compensation, which appears to it to be just and reasonable. It has to be borne in mind that the compensation is not expected to be a windfall or a bonanza nor it should be niggardly.
LOSS OF DEPENDENCY
25. To prove this aspect, Smt. Gitanjali Gond, wife of the deceased, got herself examined as PW2. PW2 deposed that the deceased left behind her, his minor daughter namely MACT no. 199/17 Page 16 of31 LRs of Prem Shankar Kumar vs. Santosh Kumar Priyanshi, his minor son namely Aditya Ray and his mother Anshuya, as his only legal heirs. PW1 further deposed that at the time of accident, the deceased was gainfully employed with Karan Metawares Pvt. Ltd., at B-69/1, Wazirpur Industrial Area, Delhi, as an accountant and earning Rs. 30,000/- per month, by doing over time, inclusive of salary of Rs. 16,000/ p.m. She has placed reliance upon the salary certificate of the deceased as Mark X, issued by the employer of the deceased, as per which, the deceased was employed with the concerned company, from 2007 till now, and was drawing salary of Rs. 16,000/- per month, at the time of accident.
26. Further, the petitioners has examined Mr. Sanjay Goel, S/o Late Sh. Jai Kishan Goel, as PW3. In his evidence, PW3 has placed reliance upon the salary certificate Ex. PW3/1 and payment record of the deceased Prem Shankar Kumar, for the month of August 2016 Ex. PW3/2 (colly.), wherein the monthly salary of the deceased was mentioned as Rs. 16,000/- per month.
27. During the course of arguments, it was argued by Ld. Counsel for R3/insurance company, that since variable amount was paid to the deceased in each month, by the concerned company therefore, income of the deceased should be determined, as per the amount, which was actually paid to the deceased. However, perusal of the MACT no. 199/17 Page 17 of31 LRs of Prem Shankar Kumar vs. Santosh Kumar record as brought by PW3, prima facie reveals that the monthly salary of the deceased was fixed at Rs. 16,000/- per month and the amount, which was actually paid to the deceased, was after taking into consideration his actual number of working days, after deduction of pay, for the period of leaves, taken by him. Thus, for the purpose of determining monthly income of the deceased, consolidated salary of the deceased, as fixed by the concerned company, is required to be taken into consideration, because if the deceased works for 26 days, then as per the testimony of PW3, he was entitled for complete salary of Rs. 16,000/- per month.
28. The salary record as brought by PW3 i.e. Ex. PW3/2 stands corroborated by certificate Ex PW3/1, issued by Authorized Signatory of Karan Metawares P. Ltd., as per which, the employer of the deceased has certified that the deceased was employed with him, as an accountant since 2007, till the date of accident, on salary of Rs. 16,000/- per month. Thus, it would be reasonable and just to consider the income of the deceased as Rs. 16,000/- per month, on the date of occurrence of the case accident i.e. on 07.09.2016.
29. As per the case of the petitioners, the deceased was aged about 33 years, at the time of accident. It is pertinent to note that along with DAR, copy of Aadhar Card of the deceased has been filed, wherein date of birth of the MACT no. 199/17 Page 18 of31 LRs of Prem Shankar Kumar vs. Santosh Kumar deceased is mentioned as 05.02.1985. The date of accident in the present case is 07.09.2016. Thus, the age of the deceased is accepted as 31 years, 07 days and 02 days, at the time of accident. Hence, the multiplier of 16 would be applicable, in view of pronouncement made by Constitutional Bench of Apex Court in the case titled as "Sarla Verma Vs. DTC 2009 ACJ 1298 SC".
30. Considering the age of the deceased, at the time of accident, future prospects @ 40% has to be awarded in favour of petitioners, in view of pronouncement made by Constitutional Bench of Apex Court in the case titled as "National Insurance Company Ltd. Vs. Pranay Sethi & Ors.",SLP (Civil) No. 25590 of 2014, date of decision 31.10.2017, as well as in view of decision of Hon'ble High Court of Delhi in appeal bearing MAC APP No. 798/2011 titled as "Bajaj Allianz General Insurance Company Ltd. Vs. Pooja & Ors", decided on 02.11.2017.
31. PW2 has deposed in her evidence by way of affidavit Ex.
PW2/A, that all the petitioners were totally dependent upon the deceased. During the course of cross-examination of PW2, by Ld. Counsel for the insurance company/R3, R3 failed to elicit any admission, to the effect, that the petitioners were gainfully employed and not dependent upon the deceased. Therefore, all the legal heirs of the deceased, at the time of accident, which includes his wife, daughter, son and mother are entitled to receive MACT no. 199/17 Page 19 of31 LRs of Prem Shankar Kumar vs. Santosh Kumar compensation, being dependent upon the deceased. In such circumstances, the deceased was likely to spare 1/4th of his income, for his personal and living expenses and to contribute the remaining 3/4th of his income, towards household expenses/maintenance of his family members.
32. Considering all the facts and circumstances, as on the date of accident, there were four dependents legal heirs of the deceased i.e. mother, wife, daughter and son. Hence, there has to be deduction of one fourth, as held in the case of Sarla Verma Vs. DTC 2009 ACJ 1298 SC. Thus, the total of loss of dependency would come out to Rs. 32,25,600/- (16,000 + 40% (6,400) = 22,400 - 1/4th (5,600) = 16,800 x 12 x 16). Hence, a sum of Rs. 32,25,600/-, is awarded under this head in favour of the petitioners.
LOSS OF LOVE & AFFECTION
33. After the celebrated judgment of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors. mentioned supra and recent judgment titled New India Assurance Company Limited versus Somwati & Ors., Civil Appeal no. 3093 of 2020 dated 07.09.2020, the petitioners are not entitled to be compensated under this head. Further Hon'ble Delhi High Court in appeal titled as "Bajaj Allianz General Insurance Company Ltd. Vs. Pooja & Ors", mentioned supra has been pleased to observe in para 18 of the judgment that the constitution bench decision in Pranay Sethi (supra) does not recognize any other non pecuniary MACT no. 199/17 Page 20 of31 LRs of Prem Shankar Kumar vs. Santosh Kumar head of damages. Hence, no amount of compensation is being awarded under this head.
LOSS OF CONSORTIUM
34. In view of the judgment of Hon'ble Supreme Court in case titled as New India Assurance Company Limited versus Somwati & Ors., Civil Appeal no. 3093 of 2020, dated 07.09.2020, this Tribunal is of considered opinion that mother, wife, daughter and son of the deceased are entitled for payment of Rs. 48,400/- each, towards loss of consortium. Consequently, a sum of Rs. 1,93,600/- (Rs. 48,400/- X 4) is awarded to the petitioners under this head.
LOSS OF ESTATE & FUNERAL EXPENSES
35. In view of the facts and circumstances of the present case and in view of decision of Hon'ble Apex Court in the case of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors." mentioned supra, a sum of Rs. 18,150/ each towards loss of estate and funeral expenses is awarded in favour of petitioners.
36. Petitioners/claimants are accordingly entitled to compensation computed as under:
Loss of financial dependency Rs.32,25,600/ -
Loss of Estate Rs. 18,150/-
Funeral Expenses Rs. 18,150/-
Loss of Consortium Rs. 193,600/-
Loss of Love and Affection Nil.
________________
MACT no. 199/17 Page 21 of31
LRs of Prem Shankar Kumar vs. Santosh Kumar Total Rs. 34,55,500/-
________________ (Rupees Thirty Four lakhs, Fifty Five Thousand, Five Hundred only).
37. In respect of entitlement of the petitioners to interest on the awarded amount, it is noteworthy that the Hon'ble Apex Court had in the case of Municipal Corporation of Delhi vs. Association of Victims of Uphaar Tragedy, 2012 ACJ 48 (SC) had observed that the victims of Uphaar Tragedy be awarded compensation with interest @ 9% per annum. The present matter is pending trial since 02.02.2017 and the rate of interest of fixed deposits in Nationalized banks has fluctuated/dropped several times during the pendency of the present proceedings. Therefore, in the interest of justice and keeping in view the judgment titled as United India Insurance Co. Ltd. vs. Baby Raksha & Ors MAC APP. No. 36/2023 passed by Hon'ble High Court on 21.04.2023, this court is of the opinion that the claimant/petitioner is entitled to interest at the prevailing bank rate of 7.5% per annum from the date of filing of petition, that is, with effect from 02.02.2017 till realization of the compensation amount.
38. The amount of interim award, if any, shall however be deducted from the above amount, if the same has already been paid to the petitioners.
MACT no. 199/17 Page 22 of31 LRs of Prem Shankar Kumar vs. Santosh Kumar LIABILITY
39. In the case in hand, Universal Sompo General Insurance Company Ltd./R3 has no statutory defence and since the offending vehicle was duly insured with the insurance company/R3, hence R3 is liable to pay the entire compensation amount to the petitioners as per law.
40. Accordingly, in the case in hand, in terms of order dated 16.05.2017 of Hon'ble High Court by Hon'ble Mr. Justice J.R. Midha in case of Rajesh Tyagi Vs. Jaibir Singh and Ors., Universal Sompo General Insurance Co./R3 is directed to deposit the awarded amount of Rs. 34,55,500/- within 30 days from today within the jurisdiction of this Tribunal, that is, State Bank of India, Rohini Courts Branch, Delhi along with interest at the rate of 7.5% per annum from the date of filing of the petition till notice of deposition of the awarded amount to be given by R3 to the petitioners and his advocates and to show or deposit the receipt of the acknowledgment with the Nazir as per rules. R3 is further directed to deposit the awarded amount in the above said bank by means of cheque drawn in the name of above said bank along with the name of the claimants mentioned therein. The said bank is further directed to keep the said amount in fixed deposit in its own name till the claimants approach the bank for disbursement, so that the awarded amount starts earning interest from the date of clearance of the cheque.
MACT no. 199/17 Page 23 of31 LRs of Prem Shankar Kumar vs. Santosh Kumar APPORTIONMENT
41. Separate statement of petitioners in terms of clause 29 MCTAP was recorded on 06.06.2023 regarding savings bank account of the petitioners with no loan, cheque book and ATM/debit card. I have heard the petitioners and Ld. counsel for the petitioners/claimants regarding financial needs of the petitioners and in view of the judgment in the case of General Manager, Kerala State Road Transport Corporation Vs. Susamma Thomas and Others, 1994 (2) SC, 1631, for appropriate investments to safeguard the amount from being frittered away by the beneficiaries owing to their ignorance, illiteracy and being susceptible to exploitation, following arrangements are hereby ordered:-
42. It is deemed appropriate by this court after hearing Learned counsels for all parties that maximum amount of compensation be kept in FDRs and only a very small amount be released to the claimants. Keeping in view the facts and circumstances of the case, the statement made by the petitioners, it is hereby directed that on realization of the award amount, the compensation to the Petitioners be distributed as follows:-
Sl. Name/No. of Relationshi Share of Release of Amount Period of No. petitioner p with amount of award of kept in FDR deceased award amount. FDR 1 Geetanjali Wife 15,55,500/- Rs. 3,55,500/- Rs.12,00 50 Gond petitioner ,000/-
no. 1
2 Priyanshi Daughter 8,00,000/- - - Amount be
MACT no. 199/17 Page 24 of31
LRs of Prem Shankar Kumar vs. Santosh Kumar petitioner no. 2 kept in the form of FDR till she attains age of majority.
3 Aditya Ray Son 8,00,000/- - - Amount be
Petitioner no. 3 kept in the
form of
FDR till he
attains age
of majority.
4. Anshuya Devi, Mother 3,00,000/- Rs.3,00,000/- - Nil
petitioner no.4
43. The amount alongwith cumulative interest without the facility of advance, loan and premature withdrawal without the prior permission of the Tribunal, in terms of above mentioned schedule be credited in the saving bank accounts of petitioners i.e. petitioner no.1 Geetanjali Gond savings bank A/c No. 15281000000961, Petitioner no.2 Priyanshi-15281000001720, Petitioner no.3-Aditya Ray 15281000001742, Petitioner no.4-Anshuya Devi 15281000001707, all with Punjab & Sind Bank, Branch Betwan Bazar, Molsaritala Kaura Maidan, Near Arya Bazar, Munger, Bihar IFSC no. PSIB0021528 the branch near their place of residence (as mentioned in statement recorded under clause 29 MCTAP).
44. It shall be subject to the following further conditions and directions in terms of order dated 07.12.2018 of Hon'ble Mr. Justice J.R. Midha in case of Rajesh Tyagi vs Jaibir Singh, FAO 842/2003 with respect to fixed deposits :-
MACT no. 199/17 Page 25 of31 LRs of Prem Shankar Kumar vs. Santosh Kumar
(a) The bank shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the victim i.e. the saving bank account(s) of the claimant(s) shall be individual savings account(s) and not a joint account(s).
(b) The original fixed deposit shall be retained by the bank in safe custody. However, the statement containing FDR number, FDR amount, date of maturity and maturity amount shall be furnished by bank to the claimant(s).
(c) The monthly interest be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant/(s) near the place of their residence.
(d) The maturity amount of the FDR(s) be credited by Electronic Clearing System (ECS) in the saving bank account of the claimant(s) near the place of their residence i.e. above said a/c.
(e) No loan, advance or withdrawal or pre-mature discharge be allowed on the fixed deposits without permission of the court.
(f) The concerned Bank shall not to issue any cheque book and/or debit card to claimant(s). However, in case the debit card and/or cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount. The bank shall debit card(s) freeze the account of the claimant(s) so that no debit card be issued in respect of the account of the claimant(s) from any other branch of the bank.
(g) The bank shall make an endorsement on the passbook MACT no. 199/17 Page 26 of31 LRs of Prem Shankar Kumar vs. Santosh Kumar of the claimant(s) to the effect, that no cheque book and/or debit card have been issued and shall not be issued without the permission of the court and claimant(s) shall produce the passbook with the necessary endorsement before the court on the next date fixed for compliance.
(h) It is clarified that the endorsement made by the bank along with the duly signed and stamped by the bank official on the pass book(s) of the claimant(s) is sufficient compliance of clause (g) above.
RELIEF
45. As discussed above, Universal Sampo General Insurance Co Ltd./R3 is directed to deposit the award amount of Rs. 34,55,500/- with interest @ 7.5% per annum from the date of filing of DAR/petition that is, 02.02.2017 till realization within the jurisdiction of this Tribunal that is, SBI, Rohini Court Branch, Delhi within 30 days from today under intimation of deposition of the awarded amount to be given by R3 to the petitioner and his advocate failing which the R3 shall be liable to pay interest @ 9% per annum from the period of delay beyond 30 days.
46. R3 is also directed to place on record the proof of deposit of the award amount, proof of delivery of notice in respect of deposit of the award amount in the above said bank to the claimants and complete details in respect of calculations of interest etc. in the court within 30 days MACT no. 199/17 Page 27 of31 LRs of Prem Shankar Kumar vs. Santosh Kumar from today.
47. Nazir is directed to place a report on record in the event of non-receipt/deposit of the compensation amount within the granted time.
48. In terms of directions contained in the order dated 07.12.2018 and subsequent order dated 22.02.2019 of Hon'ble Mr. Justice J.R. Midha in the case of Rajesh Tyagi and Ors vs Jaibir Singh and Ors., FAO 842/2003, the copy of the award be also sent by the Ahlmad of the court to Mr. Rajan Singh, Assistant General Manager, State Bank of India (as per the list of nodal officers of 21 banks of Indian Bank's Association as circulated to the Motor Accident Claims Tribunal vide above mentioned order dated 22.02.2019 of Hon'ble Delhi High Court) who is the Nodal Officer with contact details (022-22741336/9414048606) {other details-Personal Banking Business Unit (LIMA) 13th Floor, State Bank Bhawan, Madame Cama Road, Nariman Point, Mumbai-400021} through email ([email protected]) through the computer branch of Rohini Courts, Delhi. Ahlmad of the court is directed to take immediate steps in that regard.
49. A copy of this award be forwarded to the concerned Metropolitan Magistrate and DLSA in terms of the orders passed by the Hon'ble High Court in FAO 842/2003 Rajesh MACT no. 199/17 Page 28 of31 LRs of Prem Shankar Kumar vs. Santosh Kumar Tyagi Vs. Jaibir Singh and Ors. vide order dated 12.12.2014.
50. In view of the directions contained in order dated 18.01.2018 of Hon'ble Mr. Justice J.R. Midha in FAO no. 842/2003 titled as Rajesh Tyagi vs Jaibir Singh, joint statement of petitioners was also recorded on 06.06.2023 wherein they had stated that they were entitled to exemption from deduction of TDS and that they would submit form 15G to insurance co. so that no TDS is deducted.
51. Form IVA which has been duly filled in has also been attached herewith. File be consigned to record room as per rules after compliance of necessary legal formalities. Copy of order be given to parties for necessary compliance as per rules.
Digitally signed
SHAMA by SHAMA
GUPTA
GUPTA Date: 2024.12.03
16:05:52 +0530
Announced in open court (SHAMA GUPTA)
on 03rd December 2024 P.O. MACT (N/W)
Rohini Courts, Delhi
MACT no. 199/17 Page 29 of31
LRs of Prem Shankar Kumar vs. Santosh Kumar FORM - IV A SUMMARY OF COMPUTATION OF AWARD AMOUNT IN DEATH CASES TO BE INCORPORATED IN THE AWARD
1. Date of accident : 07.09.2016
2. Name of deceased: Prem Shankar Kumar.
3. Age of the deceased: About 31 years, 07 days and 02 days at the time of accident.
4. Occupation of the deceased: Accountant
5. Income of the deceased: Rs. 16,000/- p.m.
6. Name, age and relationship of legal representatives of deceased:
S.No. Name Age Relation
(i) Smt. Gitanjali Gond 38 years Wife
(ii) Kumari Priyanshi 16 years Daughter
(iii) Master Aditya Ray 15 years Son
(iv) Anshuya Devi 63 years Mother
Computation of Compensation
S.No. Heads Awarded by the Claims
Tribunal
7. Income of the deceased (A) Rs. 16,000/-
8. Add-Future Prospects (B) 40% = Rs. 6400 /-
9. Less-Personal expenses of the 1/4
deceased (C )
10. Monthly loss of dependency Rs. 22,400 - 5,600 =
{ (A+B) - C =D}
16,800/-
11. Annual loss of dependency (Dx12) Rs. 16,800/- x 12
=2,01,600/-
12. Multiplier (E) 16
MACT no. 199/17 Page 30 of31
LRs of Prem Shankar Kumar vs. Santosh Kumar
13. Total loss of dependency (Dx12xE = 13,125 x 12 x 15 = Rs.
F) 32,25,600/-
14. Medical Expenses (G) Nil
15. Compensation for loss of love and Nil affection (H)
16. Compensation for loss of Rs. 1,93,600/- (48,400x4) consortium (I)
17. Compensation for loss of estate (J) Rs.18,150/-
18. Compensation towards funeral Rs.18,150/-
expenses (K)
19. TOTAL COMPENSATION Rs. 34,55,500/-
(F+G+H+I+J+K =L)
20. RATE OF INTEREST AWARDED 7.5% 21 Interest amount up to the date of Rs. 20,30,826.14 award (M)
22. Total amount including interest Rs. 54,86,326.14 (rounded (L+M) off to Rs. 54,86,327/-)
23. Award amount released Rs. 6,55,500/-
24. Award amount kept in FDRs Rs. 48,30,827/-
25. Mode of disbursement of the award As per award and in terms of amount to the claimant (s) (Clause clause 29 of MCTAP.
29)
26. Next date for compliance of the 02.01.2025 award. (Clause 31) Digitally signed SHAMA by SHAMA GUPTA GUPTA Date: 2024.12.03 16:05:32 +0530 Announced in open court (SHAMA GUPTA) on 03rd December 2024 P.O. MACT N/W Rohini Courts, Delhi MACT no. 199/17 Page 31 of31