Delhi District Court
15/07 Rashmi Gupta vs Madan Lal Page 1 Of 32 on 17 February, 2018
15/07 Rashmi Gupta vs Madan Lal Page 1 of 32
IN THE COURT OF SH. AMIT BANSAL , PRESIDING OFFICER, MOTOR
ACCIDENT CLAIMS TRIBUNAL, NORTH WEST DISTRICT, ROHINI
COURTS, DELHI
New No. 5010716
MACT PETITION No. : 15/07
UNIQUE ID No. : DLNW010000212007
1. Smt. Rashmi Gupta
(wife of deceased Sh. Arun Gupta)
.....Petitioner No.1.
2. Ms. Arunima Gupta
(now major daughter of deceased)
......Petitioner No.2.
3. Sh. Alokit
(now major son of deceased)
.......Petitioner No.3.
All petitioners no. 1, 2 & 3 are R/o B502, Printer Apartment, Sector13,
Rohini, Delhi85
4. Sh. Om Prakash Gupta S/o Late Sh. Sant Lal
(father of deceased)
...........Petitioner No.4.
5. Smt. Bhagirathi Gupta W/o Sh. Om Prakash Gupta
(mother of deceased)
...........Petitioner No.5.
Both petitioners no. 4 & 5 are R/o H. No. 4, 1st Floor, Model Town, North
Ex (Near DAV Public School) Delhi9
Versus
1. Sh. Madan Lal (since deceased)
through his sole legal representative
Smt. Ghato Devi (mother)
R/o Nimari Wali, District Bhiwani (Haryana)
.... (Driver of truck no. HR193265/R1)
2. Sh. Maman Chand
R/o Nimari Wali, District Bhiwani (Haryana)
......... (Owner of truck No. HR193265/R2)
3. Sh. Satvir Lohia
R/o 236, Dharam Kunj Appartments,
Sector9, Rohini, Delhi85
........ (Owner of Indica car No. DL3CAF4739/R3)
15/07 Rashmi Gupta vs Madan Lal Page 1 of 32
15/07 Rashmi Gupta vs Madan Lal Page 2 of 32
4. Tata AIG General Insurance co
Peninsula Corporate Park,
Nicholas Piramal Tower, 9th Floor, Ganpatrao Kadam Marg, Lower
Parel, Mumbai.
.....Insurer of vehicle Indica Car no. DL3CAF4739/R4)
5. United India Insurance Co. Ltd.
24, Whites Road, Chennai600014
Divisional Office at
19, Savitri Chambers2 D13,
Local Shopping Complex, Prashant Vihar,
Delhi110085
......... (Insurer of truck No. HR193265/R5)
..... Respondents
Other details
DATE OF INSTITUTION : 04.01.2007
DATE OF RESERVING JUDGMENT : 09.02.2018
DATE OF PRONOUNCEMENT : 17.02.2018
FORM - V
1. COMPLIANCE OF THE PROVISIONS OF THE MODIFIED CLAIMS
TRIBUNAL AGREED PROCEDURE TO BE MENTIONED IN THE
AWARD AS PER FORMAT REFERRED IN CLAUSE 4.3 OF THE
ORDER PASSED BY THE HON'BLE HIGH COURT IN FAO 842/2003
RAJESH TYAGI Vs. JAIBIR SINGH & ORS. & SOBAT SINGH VS
RAMESH CHANDRA GUPTA & ANR., MAC.APP 422/2009 VIDE
ORDER DATED 15.12.2017
1. Date of the accident 25.06.2006
2. Date of intimation of the accident by the No provision of DAR
investigating officer to the Claims Tribunal was there at that
(Clause 2) time. Further, it is
outstation accident.
15/07 Rashmi Gupta vs Madan Lal Page 2 of 32
15/07 Rashmi Gupta vs Madan Lal Page 3 of 32
3. Date of intimation of the accident by the No provision of DAR
investigating officer to the insurance company. was there at that
(Clause 2) time. Further, it is
outstation accident.
4. Date of filing of Report under section 173 Not mentioned in the
Cr.P.C. before the Metropolitan Magistrate record.
(Clause 10)
5. Date of filing of Detailed Accident Information No provision of DAR
Report (DAR) by the investigating Officer before was there at that
Claims Tribunal (Clause 10) time. Further, it is
outstation accident.
6. Date of Service of DAR on the Insurance No provision of DAR
Company (Clause 11) was there at that
time. Further, it is
outstation accident.
7. Date of service of DAR on the claimant (s). No provision of DAR
(Clause 11) was there at that
time. Further, it is
outstation accident.
8. Whether DAR was complete in all respects? No provision of DAR
(Clause 16) was there at that
time. Further, it is
outstation accident.
9. If not, whether deficiencies in the DAR removed No provision of DAR
later on? was there at that
time. Further, it is
outstation accident.
10. Whether the police has verified the documents No provision of DAR
filed with DAR? (Clause 4) was there at that
time. Further, it is
outstation accident.
11. Whether there was any delay or deficiency on No provision of DAR
the part of the Investigating Officer? If so, was there at that
whether any action/direction warranted? time. Further, it is
outstation accident.
12. Date of appointment of the Designated Officer No provision of DAR
by the insurance Company. (Clause20) was there at that
time. Further, it is
outstation accident.
13. Name, address and contact number of the No provision of DAR
Designated Officer of the Insurance Company. was there at that
(Clause 20) time. Further, it is
outstation accident.
14. Whether the designated Officer of the Insurance No provision of DAR
15/07 Rashmi Gupta vs Madan Lal Page 3 of 32
15/07 Rashmi Gupta vs Madan Lal Page 4 of 32
Company submitted his report within 30 days of was there at that
the DAR? (Clause 20) time. Further, it is
outstation accident.
15. Whether the insurance company admitted the No provision of DAR
liability? If so, whether the Designated Officer of was there at that
the insurance company fairly computed the time. Further, it is
compensation in accordance with law. (Clause outstation accident.
23)
16. Whether there was any delay or deficiency on No provision of DAR
the part of the Designated Officer of the was there at that
Insurance Company? If so, whether any time. Further, it is
action/direction warranted? outstation accident.
17. Date of response of the claimant (s) to the offer No provision of DAR
of the Insurance Company .(Clause 24) was there at that
time. Further, it is
outstation accident.
18. Date of the Award 17.02.2018
19. Whether the award was passed with the consent No
of the parties? (Clause 22)
20. Whether the claimant(s) were directed to open Yes
saving bank account(s) near their place of
residence? (Clause 18)
21. Date of order by which claimant(s) were 11.01.2018
directed to open saving bank account (s) near
his place of residence and produce PAN Card
and Aadhar Card and the direction to the bank
not issue any cheque book/debit card to the
claimant(s) and make an endorsement to this
effect on the passbook(s). (Clause 18)
22. Date on which the claimant (s) produced the 24.01.2018 &
passbook of their saving bank account near the 03.02.2018
place of their residence along with the
endorsement, PAN Card and Aadhar Card?
(Clause 18)
23. Permanent Residential Address of the As mentioned above
Claimant(s) (Clause 27)
24. Details of saving bank account(s) of the Petitioner no. 1 Smt.
claimant(s) and the address of the bank with Rashmi Gupta
IFSC Code (Clause 27) savings bank a/c no.
520402010274791,
petitioner no.3 Sh.
Alokit savings bank
a/c no.
520402010274790,
15/07 Rashmi Gupta vs Madan Lal Page 4 of 32
15/07 Rashmi Gupta vs Madan Lal Page 5 of 32
with Union Bank of
India, Sector9,
Rohini, Delhi
petitioner no. 4 Sh.
Om Prakash Gupta
Savings bank A/c No.
419002010579682,
petitioner no. 5 Smt.
Bhagirathi Gupta,
savings bank a/c no.
419002010579681
with Union Bank of
India, Model Town2
Branch, Delhi
IFSC : UBIN0541907
(Union Bank of India,
Model Town2,
Delhi)
UBIN0552046
(Union Bank Sector
9, Rohini, Delhi)
25. Whether the claimant(s) saving bank account(s) Yes
is near his place of residence? (Clause 27)
26. Whether the claimant(s) were examined at the Yes
time of passing of the award. (Clause 27)
27. Account number/CIF No, MICR number, IFSC 86143654123,
Code, name and branch of the bank of the 110002427,
Claims Tribunal in which the award amount is to SBIN0010323, SBI,
be deposited/transferred. (in terms of order Rohini Courts, Delhi
dated 18.01.2018 of Hon'ble Delhi High Court in
FAO 842/2003 Rajesh Tyagi vs Jaibir Singh.
JUDGMENT
1. Present claim petition has been preferred under Section 166 and 140 of Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act') claiming compensation for a sum of Rs. 1,25,00,000/ (Rupees One Crore Twenty Five Lakhs Only) along with interest @ 18% in respect of accidental death of Sh. Arun Gupta @ Bunty S/o Sh. Om Prakash Gupta in a motor vehicular accident.
15/07 Rashmi Gupta vs Madan Lal Page 5 of 32 15/07 Rashmi Gupta vs Madan Lal Page 6 of 322. The petitioners have averred in the petition that the deceased Arun Gupta @ Bunty was having a good experience in the trade and business of wholesale trading of cereals and grains with more than 20 years experience in the said business. For further good prospects, he shifted to Delhi with his family in the year 2005 and joined services with Aakriti Shrinkpack Inc. at Samaipur Industrial Area dealing in the same business.
On 25.06.2006 the deceased who was about 39 years died at the spot in a head on collision of two vehicles while he was going to Sirsa from Delhi. At that time, the deceased was sitting on the back seat of the Indica Car of R3 bearing registration no. DL3CAF4739 along with his friend Sh. Dharamveer (since also deceased) along with the real brother of R3. The said Indica car was driving at a high speed by one Mr. Subhash (also deceased). When the said Indica car reach outside/crossing of the bus terminal at Dariyapur, District Fatehbad, Haryana, a truck bearing registration no. HR193265 belonging to R2 and being driven by R1 came at a very high speed from the opposite direction and heavily collided head on with the said Indica car. It has been averred in the petition that even the driver of the said Indica car could not avert the said head on collision of the vehicles, since he was driving the same at a high speed and was rash.
It has been averred in the petition that due to head on collision of the said vehicles and its heavy impact on account of the composite acts of rash and negligent driving of R1 at one hand and deceased driver Subhash of Indica car on the other hand, all the occupants of the said Indica car of R3, including the deceased, died at the spot. It was averred that the death of the deceased occurred due to composite acts of rash and negligent driving of both the vehicles, therefore, R2 being the owner of the offending truck and R3 being the owner of the offending car would be jointly and severally liable to pay compensation to petitioners/claimants. It has been averred that respondent no. 4 being the insurer of the said Indica car and respondent no. 5 being the insurer of the said truck would also be jointly and severally liable to pay the compensation.
15/07 Rashmi Gupta vs Madan Lal Page 6 of 32 15/07 Rashmi Gupta vs Madan Lal Page 7 of 32It has been mentioned in the petition that the accident took place within the jurisdiction of PS Sadar, Fatehabad and FIR No. 348/06 dated 25.06.2006 u/s 279/304A/427 IPC was registered.
On the basis of these averments, the petitioners/claimants have claimed compensation to the tune of Rs. 1,25,00,000/ along with interest @ 18% per annum against the respondents.
4. R1 Mr. Madan Lal (since expired) through LR filed the written statement and admitted that the vehicle no. HR193265 (truck) was involved in an accident. It was also admitted that Mr. Maman Chand/R2 is the owner of the said truck. It was submitted that the said truck was insured from M/s United India Insurance Co. Ltd/R5. It was averred in the said written statement that R2 had made the payment of said policy in cash for getting the vehicle insured with the said company on 20.06.2006 much prior to last policy. It was averred that the receipt of the same which was issued by the employee/agent of the insurance co. was lying in the truck at the time of accident but he did not find the same from the vehicle after the accident. He submitted that R5 deliberately and wrongly issued the policy w.e.f 29.06.2006 instead of 20.06.2006. He further submitted that the driver of the truck was driving the vehicle at a normal speed in his lane by observing all rules and regulations and rather it was the driver of the said Indica car who was driving it in a rash and negligent manner. It was averred that the said accident occurred due to rash and negligent driving of the said Indica car. R1 was ultimately proceeded against exparte on 19.08.2017.
5. R2 filed his written statement and admitted that his abovesaid truck was involved in an accident and that he was the owner of the said truck. He also submitted that the said truck was insured with R5. He stated that he had made the payment of the policy in cash on 20.06.2016 much prior to the expiry of the last policy. He has stated that receipt of the same which was issued by the employee of insurance company was lying in the truck at the time of accident and could not be found. He stated that R5 wrongly issued the policy w.e.f.
15/07 Rashmi Gupta vs Madan Lal Page 7 of 32 15/07 Rashmi Gupta vs Madan Lal Page 8 of 3229.06.2006 instead of 20.06.2006. He denied that the above said truck was being driven by R1 in a rash and negligent manner. He stated that rather the driver of the said Indica car was driving it in a rash and negligent manner due to which the case accident occurred. He submitted that the driver of the said truck was driving the vehicle at a normal speed in his name by observing all rules and regulations. R2 was ultimately proceeded against exparte on 19.08.2017.
6. R3 who is the registered owner of the said Indica car did not put in his presence despite service and was proceeded against exparte on 15.10.2007.
7. R4/Tata AIG General Insurance co. Ltd. averred that it being the insurer of above said Indica car DL3CAF4739 was not liable to pay any compensation to petitioners under the terms and conditions of the insurance policy as the deceased was an occupant in the said car and as such was not a third party. It was submitted that R3 got the said vehicle Indica car insured with R4 by claiming himself to be the owner of the said car. It was mentioned that the policy no. 0100307253 was issued by R4 in the name of R3 for a period 04.04.2006 to 03.04.2007 in respect of the vehicle no. DL3CAF4739.
It is pertinent to note that Sh. V.K. Gupta, Ld counsel for R4 made a statement on 01.12.2017 which was reduced into writing to the effect that the vehicle no. DL3CAF4739 was insured with Tata AIG General Insurance co. vide policy no. 010030725301 for a period from 04.04.2006 to 03.04.2007 in the name of Sh. Satvir Lohia and that it was a comprehensive policy.
8. R5/United India Insurance co Ltd have averred in the written statement that the above said truck no. HR193265 was not insured with it at the time of alleged accident on 25.06.2006 and that it was insured with R5 vide policy no. 221900/31/06/02/00001676 valid from 29.06.2006 to 28.06.2007. It was also submitted that the policy no. 31/05/00869 as mentioned in the petition as previous policy had been issued in favour of one Sh. Suresh Kumar for vehicle no. DL8ST9084 valid from 04.06.2005 to 03.06.2006 and that it was 15/07 Rashmi Gupta vs Madan Lal Page 8 of 32 15/07 Rashmi Gupta vs Madan Lal Page 9 of 32 never issued for the abvoe said truck bearing no. HR293265. It was submitted that the driver of the Indica car negligent while driving his vehicle and there was no negligent on the part of R1.
9.. From the pleadings of the parties, the following issues were finally framed by Ld. Predecessor of this court vide order dated 29.07.2011: (1) Whether the deceased died on 25.06.2006 at about 11:50 am at GT Road outside bus terminal at Dariyapur, District Fatehbad, Haryana, due to rash and negligent driving of vehicles no. HR19 3265 and DL3CAF4739 ?
2. Whether petitioners are entitled to compensation, if so, to what amount and from whom? OPP
3. Relief.
10. The petitioners in support of their case have examined total six witnesses in all i.e. Smt. Rashmi Gupta (wife of deceased) as PW1, Smt. Ritu Gupta, sole Proprietor of M/s Aakriti Shrinkpack Inc. as PW2, Dr. Om Prakash Dahmiwal, Sr. Medical Officer, DGHS, Haryana as PW3, Mr. Dushyant Chaudhary, Informatic Assistant in the office of DTO, Nohar, District Hanumangarh, Rajasthan as PW4, Sh. Amit Jain, Stenographer, ITO, Sirsa, Haryana as PW5 and Mr. Vijay Kumar Gupta (eye witness) as PW6.
On the other hand, R1, R2 and R3 did not lead any evidence in support of their case.
R4 examined Sh. Pankaj Soni, Sr. Tax Assistant, ITO Sirsa as R4W1. R5 also examined Mr. Deepak Sarin, its Assistant Manager, as R5W1.
11. I have already heard the arguments addressed on behalf of ld counsel for petitioners and ld counsels for R4 and R5. I have carefully perused the record including the written submissions. None had appeared for respondents no.1, 2 and 3 to advance final arguments as they were already proceeded against exparte . Now, I proceed to discuss the issues in the succeeding paragraphs.
15/07 Rashmi Gupta vs Madan Lal Page 9 of 32 15/07 Rashmi Gupta vs Madan Lal Page 10 of 3212. Issue wise findings are as under: Issue No. (1) The onus to prove this issue beyond preponderance of probabilities is upon the petitioners.
PW1 Smt. Rashmi Gupta is the widow of deceased and is admittedly not an eye witness of the accident. She admitted in her cross examination that she was deposing about the accident on hearsay basis. PW2 is the employer of the deceased. PW3 brought and proved the postmortem report of the deceased. PW4 proved the driving licence of Mr. Subhash i.e. driver of the Indica car wherein the deceased was traveling at the time of accident. PW5 was an official from ITO Sirsa, Haryana who proved the ITR of the deceased.
The petitioners have examined only one eye witness to the case accident i.e. PW6 Sh. Vijay Kumar Gupta. PW6 has filed and proved his evidence by way of affidavit as Ex. PW6/A. The testimony of PW6 is crucial to the outcome of the present issue.
PW6 deposed in Ex. PW6/A to the effect that he was the uncle of the deceased Arun Kumar @ Bunty and was aware of the facts of the fatal accident which had taken place on 25.06.2006 outside bus terminal at Dariyapur, Fatehabad, Haryana. He deposed that on 25.06.2006 his nephew i.e. the deceased came along with his one friend Sh. Dharamvir (since also deceased) in the Indica car of his friend bearing registration no. DL3CAF 4739 which was being driven by one Sh. Subhash (since also deceased). He deposed that thereafter they left for Sirsa from Hissar in their respective cars. He deposed that the deceased and his friend Mr. Dharamvir sat at the back seat of the said Indica car, whereas he (PW6) with his one other nephew Mr. Virender Kumar sat in another car. He deposed that on 25.06.2006 at about 11:30 am while they were crossing the bus terminal at Dariyapur, Fatehabad, Haryana, said Indica car which was ahead the car of PW6 met with a head on collision with the truck bearing no. HR193265 coming from the opposite 15/07 Rashmi Gupta vs Madan Lal Page 10 of 32 15/07 Rashmi Gupta vs Madan Lal Page 11 of 32 direction. He specifically deposed that the collision had taken place due to the said truck coming all of a sudden on the wrong side in front of said Indica car which was also being driven at a high speed and as such the driver of the Indica car also could not avert the said collision in time. He deposed that the said head on collision resulted into a fatal accident, claiming the lives of all occupants of the Indica car. He specifically deposed that the said fatal accident took place due to rash and negligent driving of the said truck by the deceased R1 (driver of the truck) besides the act of high speed driving of the deceased driver of the said Indica car. He further deposed that on the information given by him to the police, a FIR bearing no. 348/2006 was registered by the police on 25.06.2006 at P.S. Sadar Fatehabad u/s 279/304A/427 IPC.
In his cross examination by ld counsel for R4, PW6 interalia deposed that his car was being driven at a speed of 80 km/h and that the place of accident was a National highway. He deposed that there was a divider on the road. He deposed that the car of the deceased was going with his car for the last 5060 kms and for the last 10 kms before the accident, the car of the deceased was ahead of his car. He deposed that his car was about 200 yards behind the car of the deceased at the time of the accident. He deposed that the truck suddenly came before the car by overtaking a bus and that the car was going on the correct side of the road. He admitted that in the statement made before the police in the FIR, he had not stated that the car of the deceased was at fault.
In his cross examination by ld counsel for R5, PW6 interalia deposed that there was no vehicle in between the car of the deceased and his car. He admitted to be correct that the car of the deceased was also being driven at a high speed of about 100 km/h. He denied the suggestion that the deceased expired due to the negligent driving of the driver of his car. He volunteered that the entire negligence was of the driver of the truck who suddenly came in front of the car while overtakig the bus.
15/07 Rashmi Gupta vs Madan Lal Page 11 of 32 15/07 Rashmi Gupta vs Madan Lal Page 12 of 32The testimony of PW6 who is an eye witness of the case accident would prove that the case accident had taken place due to rash and negligent driving of both the drivers of the vehicles involved in the accident i.e. above said Truck and Indica car. PW6 specifically deposed that his car was being driven at the speed of 80 km/h and admitted that the car of the deceased was also being driven at a high speed at the rate of about 100 km/h. The speed of 100 km/h in the given facts and circumstances would be considered to be excessive. PW6 specifically deposed that the collision had taken place due to the said truck coming all of a sudden on the wrong side in front of said Indica car which was also being driven at a high speed and as such the driver of the Indica car also could not avert the said collision in time. He specifically deposed that the said fatal accident took place due to rash and negligent driving of the said truck by the deceased R1 (driver of the truck) besides the act of high speed driving of the deceased driver of the said Indica car.
PW6 is the complainant of FIR No. 348/2006 PS Sadar Fatehabad and the charge sheet has been collectively proved as Ex. PW1/D (colly). The site plan as prepared on the charge sheet itself would show that the accident had taken place near bus stop Dariyapur on FatehabadSirsa, G.T. Road and there are shops on all the sides. The driving of a car at the speed of about 100 km/h on such a road with bus stop on one side and several shops around it in such a manner so as to not to able to avert a collision with other vehicle even if the said other vehicle was being driven rashly and negligently would tantamount to driving of the said car also rashly and negligently. Driving at a high speed of about 100 km/h at the spot which is Fatehbad City, near bus stand and shops around itself invites the concept of Res ipsa loquitur and attributes culpable rashness also to the driver of the said Indica car. In the said circumstances, there could have been a possibility that if the said Indica car was being driven at a slow speed then its driver could have averted the said accident even if the truck had suddenly come in front of it while overtaking another vehicle. Although, PW6 has volunteered during recording of his testimony that the entire negligence was of the driver 15/07 Rashmi Gupta vs Madan Lal Page 12 of 32 15/07 Rashmi Gupta vs Madan Lal Page 13 of 32 of the truck, but reading of his testimony as a whole would amply prove that there was sufficient negligence also on the part of the driver of the Indica car as he was driving at a very high speed of 100 km/h at a road near the bus stand during the busy hours of the day, there were shops also around the place of accident and had he driven the car at a speed with which he could have controlled the vehicle, he could have averted the accident despite the fact that the said truck suddenly came in front of the said car while overtaking a bus.
The negligence of the above said truck is also self evident from the testimony of PW6 as he has deposed that the said truck came all of a sudden on the wrong side in front of the said Indica car.
It is not a disputed fact that both the above said vehicles were seized in an accidental condition by the police of PS Sadar Fatehabad.
The postmortem report of the deceased has been proved by PW3 as Ex. PW3/1 with date of death as 25.06.2006 i.e date of case accident. PW3 deposed that the cause of the death was due to hemorrhage and shock due to injuries as mentioned in the postmortem report. The injuries mentioned in the postmortem report are consistent with the injuries which are sustained in a motor vehicle accident.
Ld counsel for R4 has referred to the judgment of Hon'ble Supreme Court of India in the case of Oriental Insurance Co. Ltd. Vs Prem Lata Shukla, III(2007) ACC 54 (SC) and has argued that proof of rashness and negligence on the part of the driver of the vehicle sine qua non for maintaining an application u/s 166 of the Act.
Their cannot be any doubt over the law as laid down in the said judgment sought to be relied upon by the ld counsel for R4, however, it will not benefit R4 on the peculiar facts and circumstances of the case as it has already been held that both the drivers of the truck as well as Indica car were negligent while driving their respective vehicles leading to the case accident and the death of the deceased.
15/07 Rashmi Gupta vs Madan Lal Page 13 of 32 15/07 Rashmi Gupta vs Madan Lal Page 14 of 32In view of the aforesaid discussion and the material and evidence which has come on record, it is held that the petitioners have been able to prove on the basis of preponderance of probabilities that the deceased expired in a road accident which had taken place on 25.06.2006 at about 11:30 am near bus terminal at Dariyapur, District Fatehabad, Haryana due to rash and negligent driving of vehicles bearing no. HR393265 (Truck) and DL3CAF4739 (Indica car) by respondent no. 1 (since expired) and Subhash (since expired) respectively.
Issue no.1 is decided accordingly.
13. Issue No. (2) In view of findings of issue no.1 petitioners are entitled to compensation.
(a) PW1 (wife of the deceased) has deposed that his date of birth was 12.12.1966, he was doing business of commission agent in Anaj Mandi at the time of their marriage on 22.02.1992, in the year 200405, they shifted with children to Delhi from Sirsa and thereafter deceased started to work with Aakiriti Shirnkpack Inc. which was a family business owned by either brother in law or sister in law. The salary certificate dated 30.04.2006 is Ex. PW1/A =Ex. PW2/2. The income tax return of the deceased of assessment year 200607 has been proved as Ex. PW1/C=Ex. PW5/A. It was deposed by PW1 in her cross examination that deceased was an undergraduate.
PW2 Smt. Ritu Gupta was the proprietor of M/s Aakiriti Shrinkpack Inc. and its certificate of registration with Sales Tax Authorities has been proved as Ex. PW2/1. She deposed that prior to her death, the deceased was working with her firm as Sr. Vice President (Marketing) on a gross salary of Rs. 24,500/ and that he was paid Rs. 1,40,000/ by the said firm as net salary w.e.f 01.08.2005 till 31.03.2006 after due deduction of Rs. 56,000/ towards TDS. She also deposed that the deceased was also paid an amount of Rs. 56,000/ by the said firm towards his salary w.e.f. April 2006 to May 2006 after deduction of Rs. 14,280/ as TDS. The document in this 15/07 Rashmi Gupta vs Madan Lal Page 14 of 32 15/07 Rashmi Gupta vs Madan Lal Page 15 of 32 regard is Ex. PW1/B=Ex. PW2/3. She deposed that besides the said salary for the said period, the deceased was also paid an amount of Rs. 3,67,325/ by said firm towards commission w.e.f 01.04.2005 to 31.03.2006 after deducting Rs. 18,733/ as TDS. She deposed that deceased was also paid an amount of Rs. 8,70,040/ by the said firm as commission for the period from 01.04.2006 to 30.06.2006 after deducting Rs. 4,439/ as TDS. It was deposed by PW2 that said TDS was duly deposited by the said firm with Income Tax Department and the prescribed forms 16 and 16A were issued to the deceased by the said firm under her signatures. The said document are Ex. PW2/4 to Ex. PW2/7. In her cross examination PW2 interalia deposed that she had not issued any appointment letter to the deceased and the remuneration was being paid to him by way of cash as well as cheque. She also deposed in her cross examination that the deceased was working as a sales promoter as he had experience of sales while working as commission agent in Anaj Mandi and that he was an undergraduate.
Noting substantial has appeared in the cross examination of PW1 and PW2 to discredit their testimonies. Further, PW5 i.e. official from ITO Sirsa has also proved the above said ITR of the deceased as Ex. PW5/A (colly).
As per the case of petitioners and documents proved on record, deceased Sh. Arun Kumar Gupta @ Bunty was aged about 39 years (date of birth is 12.12.1966 as mentioned in his income tax return which has been proved as Ex. PW1/C = Ex. PW5/A & date of death is 25.06.2006 in terms of postmortem report Ex. PW3/1) at the time of accident, was working with the firm M/s Aakirit Shrinkpack Inc. of PW2 as Senior Vice President (Marketing) and his total income was Rs.4,36,241/ per annum (Gross total income of Rs. 5,10,172/ minus net tax of Rs. 73,931/ as per income tax return for the assessment year 20062007 which was filed on 31.05.2006 with the income tax authority and has been proved as Ex. PW1/C= Ex. PW5/A. Accordingly, it would be reasonable and just to consider the income of petitioner as Rs. 36,353/ per month (after rounding of) (Rs. 4,36,241/ 15/07 Rashmi Gupta vs Madan Lal Page 15 of 32 15/07 Rashmi Gupta vs Madan Lal Page 16 of 32 divided by 12 months) on the date of accident in question.
(b) Addition of future prospects If addition in income towards future prospects is to be made In this regard, reference should be made to the latest Constitutional Bench Judgment of Hon'ble Supreme Court of India in case of National Insurance Company Limited vs. Pranay Sethi & Ors, SLP (Civil) No. 25590 of 2014, date of decision 31.10.2017.
In the said judgment of Pranay Sethi (Supra), the Hon'ble Apex Court interalia held as under:
61. In view of the aforesaid analysis, we proceed to record our conclusions:
(i).........................................................................................
(ii) .....................................................................................
(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 selfemployed 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 the determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall 15/07 Rashmi Gupta vs Madan Lal Page 16 of 32 15/07 Rashmi Gupta vs Madan Lal Page 17 of 32 be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore.
(vi) The selection of multiplier shall be 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 future 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. "
(.... Emphasis Supplied) In the case in hand, the deceased was having a permanent job and was not only earning a salary as sales promoter of M/s Aakiriti Shrinkpack Inc. (reference to testimony of PW2) but was also earning commission. In that regard his ITR for assessment year 200607 has been proved as Ex. PW1/C=Ex. PW5/A (colly) which would show that his income from salary was Rs. 1,29,600/ and his income from business or profession was Rs. 3,50,155/.
R4W1 Sh. Pankaj Soni, Sr. Tax Consultant, ITO, Sirsa is rendered only a formal witness as he deposed that summoned record was not traceable and produced the letter of Joint Commissioner of Income Tax in that regard Ex. R4W1/1.
In the said circumstances and in terms of above said judgment, while determining his income for computing compensation, future prospects have to be added to fall within the ambit and sweep of just compensation under Section 168 of M.V. Act.
The age of the deceased, as discussed above, in the present case was about 39 years and he had a permanent job. In view of paragraph no. 61 (iii) of above said judgment in Pranay Sethi (Supra), the deceased 15/07 Rashmi Gupta vs Madan Lal Page 17 of 32 15/07 Rashmi Gupta vs Madan Lal Page 18 of 32 would be entitled to an addition of 50% of the established income as he was below 40 years at the time of his death.
The monthly income of the deceased is thus calculated as 36,353/+50% of 36,353/ which comes to Rs. 36,353+ Rs. 18176/(after rounding off). = Rs. 54,529/
(c) Deduction towards personal and living expenses of the deceased:
Petitioner no. 1 is the wife of deceased, petitioners no 2 and 3 are the daughter and son of deceased (who have now both attained majority) and petitioners no. 4 & 5 are the parents of the deceased.
It is an admitted position in the cross examination of PW1 that her parents in law i.e. petitioners no. 4 & 5 were residing with her brother in law at the time of accident and as such they were not dependent upon him. His dependents would be thus his wife and two children who were minor at the time of accident but have now attained majority.
In the present case, the deceased was married and his dependent family members were 3, hence, the deduction towards personal and living expenses of the deceased should be 1/3rd in view of the settled law by the Hon'ble Apex Court in cases of Sarla Verma vs. Delhi Transport Corporation, 2009 ACJ 1298: (2009) 6 SCC 121 which has been upheld by the Constitutional Bench of Hon'ble Apex Court in the case of Pranay Sethi (Supra) in paragraph no 61 (v) of the judgment.
(d) Selection of multiplier:
As discussed above, the age of the deceased was about 39 years at the time of his death. In view of paragraph no. 61(vii) of the judgment in the case of Pranay Sethi (Supra), the age of deceased should be the basis for applying the multiplier. Accordingly, the relevant multiplier would be "15" as per judgment in case of Sarla Verma (Supra) which has been upheld in paragraph no. 61 (vi) in case of Pranay Sethi (Supra).
(e) Loss of financial dependency In the light of aforesaid facts, loss of financial dependency of the 15/07 Rashmi Gupta vs Madan Lal Page 18 of 32 15/07 Rashmi Gupta vs Madan Lal Page 19 of 32 petitioner comes to Rs. 65,43,480/ [i.e. Rs.54,529/ (per month income of the deceased) X 15 (multiplier) X 12 (months) X 2/3 (dependency)].
15. Compensation under nonpecuniary heads/conventional heads:
In view of the judgment of Constitution Bench of Hon'ble Apex Court in case of Pranay Sethi (Supra), as held in paragraph number 61 (viii) of the said judgment, the petitioners would be entitled to Rs. 15,000/ towards loss of estate and Rs. 15,000/ towards funeral expenses. Petitioner no. 1 who is the wife of deceased would be entitled to Rs. 40,000/ towards loss of consortium.
16. LOSS OF LOVE & AFFECTION The Hon'ble Delhi High Court in the latest case of Bajaj Allianz General Insurance Company Ltd. Vs Pooja & Ors, MAC Appeal 798/2011, date of decision 02.11.2017 after referring to the judgment of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors.", passed in SLP(Civil) No. 25590/14 decided on 31.10.17 delivered by Constitutional Bench of Hon'ble Apex Court, accepted the submissions of the ld counsel for the insurer that nonpecuniary heads of damages would have to be restricted to the total of Rs. 70,000/ only, in view of the dispensation in Pranay Sethi (Supra). The Hon'ble Delhi High Court in the said case further held that the Constitution Bench decision did not recognize any other nonpecuniary head of damages (except loss of estate, loss of consortium and funeral expenses).
In view of above said discussion, the petitioners would not be entitled to any amount under the said head of loss of love and affection.
17. Petitioners/claimants are accordingly entitled to compensation computed as under:
Loss of financial dependency Rs.65,43,480/ Loss of Estate Rs. 15,000/ Loss of Consortium Rs. 40,000/ Funeral Expenses Rs. 15,000/ ________________ Total Rs.66,13,480/ ________________ 15/07 Rashmi Gupta vs Madan Lal Page 19 of 32 15/07 Rashmi Gupta vs Madan Lal Page 20 of 32
(Rupees Sixty Six Lakhs thirteen Thousand Four hundered eighty Only) The claimants/petitioners are also entitled to interest @ 9% p.a. for the date of filing of petition i.e. w.e.f 04.01.2007 till realisation of the compensation amount. The said interest @ 9% p.a. was awarded on the award amount by the Hon'ble Apex Court in case Municipal Corporation of Delhi vs. Association of Victims of Uphaar Tragedy, 2012 ACJ 48 (SC) .
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.
18. Liability At this stage, the question arises for determination as to which of the respondents is liable to pay the aforesaid compensation amount.
Ld counsel for the petitioners argued that it is the case of composite negligence and as such each wrong doer including R1, R2, R3 and R4 would be jointly and severally liable to the claimants for the payment of entire damages and the claimants/petitioners would be having the choice of proceeding against all or any of them. In that regard he referred to the following judgments:
1. T.O. Anthony Vs. Karvarnan & Ors., (2008) 3 SCC 748
2. Khenyei vs New India Assurance Co. Ltd. & Ors., Civil Appeal no. 4244 of 2015 as decided on 07.05.2015 by the Hon'ble Supreme Court of India.
3. Yashpal Luthra & Anr. Vs United India Insurance Co. Ltd. & Anr. MAC.APP. No. 176/2009 as decided on 09.12.2009 by the Hon'ble Supreme Court of India.
Ld counsel for petitioners also argued that as the Indica car i.e. vehicle DL3CAF4739 in which the deceased was traveling at the relevant time was insured with Tata AIG General Insurance co/R4 vide policy No. 010030725301 for period from 04.04.2006 to 03.04.2007 in the name of R3 and it was a comprehensive policy, hence, even in the absence of any 15/07 Rashmi Gupta vs Madan Lal Page 20 of 32 15/07 Rashmi Gupta vs Madan Lal Page 21 of 32 negligence on part of the driver of said Indica car, R4 would be liable.
Ld counsel for R4 has argued that the said Indica car was insured comprehensively with R4 but it does not mean that the petitioners would not be required to prove the negligence of the driver of the car. He argued that firstly the petitioners would be required to prove the negligence of the driver of the car and only then the question of third party claim in respect of the occupant of the car would come into picture.
Ld counsel for R4 also referred to the following judgments:
1. Yashpal Luthra & Anr. Vs United India Insurance Co. Ltd. & Anr. MAC.APP. No. 176/2009 as decided on 09.12.2009 by the Hon'ble Supreme Court of India.
2. Reliance General Insurance Co. Ltd. Vs Nirmala Devi & Ors., MAC.APP. 20/2017, decided on 05.07.2017 by the Hon'ble Delhi High Court.
3. Oriental Insurance Co. Ltd vs Premlata Shukla, Appeal (Civil) No. 2526 of 2007, decided on 15.05.2007 by the Hon'ble Supreme Court of India.
Ld counsel for R5 has argued that the truck bearing registration no. HR193265 was insured with R5/company vide policy No. 221900/31/06/02/00001676 from 29.06.2006 to 28.06.2007 and it was not covering the date of accident i.e. 25.06.2006. He argued that the previous policy bearing no. 221900/31/05/01/00000869 as mentioned in the petition as previous policy was issued in the name of Sh. Suresh Kumar for the vehicle bearing no. DL8ST9084 valid from 04.06.2005 to 03.06.2006 and the same was never issued for the vehicle bearing no. HR193265 (truck). He also referred to the testimony of R5W1 and argued that the policy premium was also paid on 26.06.2006 whereas the policy was from 29.06.2006 till the midnight of 28.06.2007 and as such R5 would not be having any liability whatsoever qua the case accident which occurred on 25.06.2006 at 11:50 am.
The record would show that R5 has examined Mr. Deepak Sarin, its Assistant Manager as R5W1 and has filed and proved his evidence by way of affidavit as Ex. R5W1/1. R5W1 has interalia deposed that the vehicle 15/07 Rashmi Gupta vs Madan Lal Page 21 of 32 15/07 Rashmi Gupta vs Madan Lal Page 22 of 32 bearing no. HR193265 (truck) was insured with R5/Insurance co. vide policy valid from 29.06.2006 to 28.06.2007 in the name of R2 Sh. Maman Chand and the same was not covering the date of accident i.e. 25.06.2006. The copy of the policy has been proved as Ex. R5W1/C and Ex. R5W1/PX1. The said documents would indeed show that the said offending truck was insured from 00:00 hrs on 29.06.2006 to the midnight on 28.06.2007. The receipt date of the premium qua the policy is also 26.06.2006 which is the next day of the accident i.e. 25.06.2006. In the said circumstances, it is clearly proved on record by R5 that the said offending truck was not insured with R5/Insurance co. on the date of the accident i.e. 25.06.2006 and hence, R5 would not be having any liability whatsoever to pay any compensation qua the case accident.
It is an admitted position that the vehicle no. DL3CAF4739 (Indica car) was insured with Tata AIG General Insurance co/R4 vide comprehensive policy no. 010030725301 for a period of 04.04.2006 to 03.04.2007 in the name of R3/Satvir Lohia. Separate statement of ld counsel for R4Insurance co. was also recorded in that regard on 01.12.2017. The Judgment of Hon'ble Apex Court in Yashpal Luthra (Supra) has been relied upon by both the petitioners as well as ld counsel for insurance co/R4. The Hon'ble Apex Court has interalia held as follows: "27. In view of the aforesaid, it is clear that the comprehensive/package policy of a two wheeler covers a pillion rider and comprehensive/package policy of a private car covers the occupants and where the vehicle is covered under a comprehensive/package policy, there is no need for Motor Accident Claims Tribunal to go into the question whether the Insurance Company is liable to compensate for the death or injury of a pillion rider on a two wheeler or the occupants in a private 15/07 Rashmi Gupta vs Madan Lal Page 22 of 32 15/07 Rashmi Gupta vs Madan Lal Page 23 of 32 car.............................................................."
As it is an admitted position that the deceased was traveling in the above said Indica car which was having a comprehensive policy of R4/Tata AIG General Insurance co. covering the date of accident, hence, the insurance co/R4 would be liable to compensate for the death of the deceased.
In the case of Nirmala Devi (Supra), the Hon'ble Delhi High Court while referring to its decision in the case New India Assurance Company Limited vs Devki & Ors., MAC.APP. 165/2013, decided on 29.02.2016, held as follows:
"5. It is well settled that in proceedings arising out of a claim petition under Section 166 of MV Act based on fault liability principle, a person cannot be held liable unless he contravenes any of the duties imposed on him by the common law or by the statute. In the case of a motor accident it is imperative that the claimants show by some evidence that the driver of the motor vehicle had been negligent in relation to the said vehicle and thereby had caused an accident resulting in bodily injuries or death or damage to the property so as to be held liable as the principal tortfeasor. The owner's liability arises out of his failure to discharge a duty cast on him by the law, on the principle of vicarious liability. Proof of negligence is necessary before the owner or the insurance company may be held liable for payment of compensation in a motor accident claim case brought under Section 166 MV Act.
6. The law to above effect declared in Minu B 15/07 Rashmi Gupta vs Madan Lal Page 23 of 32 15/07 Rashmi Gupta vs Madan Lal Page 24 of 32 Mehta v. Balkrishna Ramchanra Nayan (1977) 2 SCC 441 was reiterated by Supreme Court in Oriental Insurance Company Ltd. v. Meena Variyal 2007 (5) SCC 425..................."
In view of above said settled position of law, in the present petition which is under Section 166/140 of M.V. Act, the petitioners were bound to prove negligence of the driver of the motor vehicle which had caused an accident and hence, the arguments of ld counsel for petitioners to the effect that no negligence has to be proved in case of comprehensive insurance policy are without any force.
While deciding issue no. 1, it was held and found established that there was negligence on the part of drivers of both the aforesaid vehicles i.e Truck No. HR193265 and Indica car No. DL3CAF 4739. It has already been held that both the drivers of the truck as well as Indica car were negligent while driving their respective vehicles leading to the case accident and the death of the deceased. In the said circumstances, I find substance in the contentions raised on behalf of ld counsel for petitioners that it is a case of composite negligence on the part of the drivers of both the said vehicles.
19. Without referring to the entire series of decisions on the point in issue, it would be appropriate to refer to the leading cases on this point. Hon'ble Apex Court in the matter titled as " T.O. Antony Vs. Karvarnan & Ors." reported at (2008) ACC 706 (SC): (2008) 3 SCC 748 has discussed the concept of 'composite negligence' and the apportionment of liability amongst joint tort feasors in para6 of the judgment as under: " Composite negligence" refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrongdoers, it is said that the person was injured on account of the composite negligence of those wrongdoers. In such a case, each wrongdoer, is jointly and severally liable to 15/07 Rashmi Gupta vs Madan Lal Page 24 of 32 15/07 Rashmi Gupta vs Madan Lal Page 25 of 32 the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrongdoer separately, nor is it necessary for the Court to determine the extent of liability of each wrongdoer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence on the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence. Xxxxxx"
20. Recently, Hon'ble Apex Court in the matter titled as " Khenyei Vs. New India Assurance Co. Ltd. & Ors. in Civil Appeal No. 4244/15 decided on 07.05.2015 has concluded the legal position with regard to liability of insurance company in case of composite negligence as under: " .........What emerges from the aforesaid discussion is as follows:
(i) In the case of composite negligence, plaintiff/claimant is entitled to sue both or any of the joint tort feasors and to recover the entire compensation as liability of joint tort feasors is joint and several.
(ii) In the case of composite negligence, apportionment of compensation between two tort feasors vis a vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.
(iii) In case all the joint tort feasors have been impleaded and evidence is sufficient, it is open to the court/tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tort feasors 15/07 Rashmi Gupta vs Madan Lal Page 25 of 32 15/07 Rashmi Gupta vs Madan Lal Page 26 of 32 is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/extent of their negligence has been determined by the court/tribunal, in main case one joint tort feasor can recover the amount from the other in the execution proceedings.
(iv) It would not be appropriate for the court/tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tort feasors. In such a case, impleaded joint tort feasor should be left, in case he so desires, to sue the other joint tort feasor in independent proceedings after passing of the decree or award."
21. Having judged the facts of the present case on the touch stone of the legal position as laid down by Hon'ble Apex Court in above mentioned two judgments and my findings on issue no. 1 qua the composite negligence of both the drivers of the above said truck and Indica car, it is held that R1 to R4 shall be liable to pay the entire compensation amount to the petitioners/claimants and R1 to R4 would be having joint and several liability.
22. 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., R1 to R4 are directed to deposit the awarded amount of Rs. 66,13,480/ within 30 days from today within the jurisdiction of this Tribunal i.e. State Bank of India, Rohini Courts Branch, Delhi alongwith interest at the rate of 9 % per annum from the date of filing of the petition till notice of deposition of the awarded amount to be given by R1 to R4 to the petitioners and their advocates and to show or deposit the receipt of the acknowledgement with the Nazir as per rules. R1 to R4 are further directed to deposit the awarded amount in the above said bank by means of cheque drawn in the name of above said bank alongwith 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 15/07 Rashmi Gupta vs Madan Lal Page 26 of 32 15/07 Rashmi Gupta vs Madan Lal Page 27 of 32 the bank for disbursement, so that the awarded amount starts earning interest from the date of clearance of the cheque.
APPORTIONMENT
23. Statement of petitioners in terms of clause 27 MCTAP was recorded. I have heard the petitioners and ld. counsel for the petitioners/claimants regarding financial needs of the injured/petitioner and in view of the judgment in the case of General Manager, Kerala State Road Transport Corporation Vs. Susamma Thomas & 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: Keeping in view the facts and circumstances of the case, on realization, an amount of Rs. 5,00,000/ each be given to petitioners no. 4 & 5 namely Sh. Om Prakash Gupta and Smt. Bhagirathi Gupta who are parents of deceased respectively and from the same an amount of Rs. 2,00,000/ each be released to them in their respective savings bank account i.e. savings bank account no. 419002010579682 with (in the name of Sh. Om Prakash Gupta) and savings bank a/c no. 419002010579681 with Union Bank of India, Model Town2 Branch, Delhi (in the name of Smt. Bhagirathi Gupta) as per rules i.e. the branches near their place of residence (as mentioned in statement recorded under clause 27 MCTAP) and their respective remaining amount be kept in their respective names in 60 FDRs of equal amount for a period of one month to 60 months with cumulative interest without the facility of advance, loan and premature withdrawal without the prior permission of the Tribunal.
Further, an amount of Rs. 20,00,000/ each be given to Ms. Arunima (daughter of deceased ) and Sh. Alokit (son of deceased) out of which an amount of Rs. 2,00,000/ each be released to them in savings bank a/c no. 520402010274791 ( this saving bank account is in the name of Smt. Rashmi Gupta who is mother of Ms. Arunima) and savings bank a/c no. 520402010274790 (in the name of Sh. Alokit) with Union Bank of India, 15/07 Rashmi Gupta vs Madan Lal Page 27 of 32 15/07 Rashmi Gupta vs Madan Lal Page 28 of 32 Sector9, Rohini, Delhi i.e. the branch near their place of residence (as mentioned in statement recorded under clause 27 MCTAP) and remaining amount be kept in 120 FDRs of equal amount for a period of one month to 120 months with cumulative interest without the facility of advance, loan and premature withdrawal without the prior permission of the Tribunal. Further, remaining amount be given to Smt. Rashmi Gupta (who is wife of deceased ) out of which an amount of Rs. 2,00,000/ be released to her in her savings bank a/c no. 520402010274791 with Union Bank of India, Sector9, Rohini, Delhi i.e. the branch near her place of residence (as mentioned in statement recorded under clause 27 MCTAP) and remaining amount be kept in 180 FDRs of equal amount for a period of one month to 180 months with cumulative interest without the facility of advance, loan and premature withdrawal without the prior permission of the Tribunal.
It shall be subject to the following further directions:
(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 maturity amount of the FDR(s) shall be credited to the saving bank account of the claimant(s) in a nationalised bank near the place of his residence i.e. above said a/c.
(e) No loan, advance or withdrawal or premature 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 15/07 Rashmi Gupta vs Madan Lal Page 28 of 32 15/07 Rashmi Gupta vs Madan Lal Page 29 of 32 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.
(g) The bank shall make an endorsement on the passbook of the claimant(s) to the effect, that no cheque book and/or debit card have been issued and shall not be issued without the permission of the court and claimant(s) shall produce the passbook with the necessary endorsement before the court on the next date fixed for compliance.
24. Relief As discussed above, R1 to R4 are directed to deposit the award amount of Rs. 66,13,480/ with interest @ 9% per annum from the date of filing of petition i.e. 04.01.2007 till realization within the jurisdiction of this Tribunal i.e. SBI , Rohini Court Branch, Delhi within 30 days from today under intimation of deposition of the awarded amount to be given by R1 to R4 to the petitioners and their advocates failing which the R1 and R4 shall be liable to pay interest @ 12% per annum from the period of delay beyond 30 days. R1 and R4 are also directed to place on record the proof of the award amount, proof of delivery of notice in respect of deposit of the amount in the above said bank to the claimants and complete details in respect of calculations of interest etc in the court within 30 days from today. A copy of this judgment/award be sent to respondent no. 3 for compliance within the granted time.
Nazir is directed to place a report on record in the event of non receipt/deposit of the compensation amount within the granted time.
A copy of this award be forwarded to the concerned Metropolitan Magistrate and DLSA in terms of the orders passed by the Hon'ble High Court in FAO 842/2003 Rajesh Tyagi Vs. Jaibir Singh & Ors. vide order dated 12.12.2014.
In view of the directions contained in order dated 18.01.2018 15/07 Rashmi Gupta vs Madan Lal Page 29 of 32 15/07 Rashmi Gupta vs Madan Lal Page 30 of 32 of Hon'ble Mr. Justice J.R. Midha in FAO no. 842/2003 titled as Rajesh Tyagi vs Jaibir Singh, the statement of ld counsel for all petitioners was also recorded wherein he had stated that the petitioners were entitled to exemption from deduction of TDS and that they would submit form 15G to the insurance co. so that no TDS is deducted.
25. Form IVA which has been duly filled in has also been attached herewith. File be consigned to record room as per rules after compliance of necessary legal formalities. Copy of order be given to parties for necessary compliance as per rules.
Announced in open court (AMIT BANSAL)
on 17th February 2018 PO MACT N/W
Rohini Courts, Delhi.
15/07 Rashmi Gupta vs Madan Lal Page 30 of 32
15/07 Rashmi Gupta vs Madan Lal Page 31 of 32
FORM - IV A
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN DEATH CASES TO BE INCORPORATED IN THE AWARD
1. Date of accident : 25.06.2006
2. Name of deceased: Arun Gupta
3. Age of the deceased: 39 years
4. Occupation of the deceased: Permanent Job.
5. Income of the deceased: 54,529/ per month
6. Name, age and relationship of legal representatives of deceased:
S.No. Name Age Relation
(i) Smt. Rashmi Gupta 46 years wife
(ii) Sh. Alokit 20 years Son
(iii) Ms. Arunima 24 years Daughter
(iv) Sh. Om Prakash Gupta 75 years Father
(v) Smt. Bhagirathi Gupta 67 years Mother
Computation of Compensation
S.No. Heads Awarded by the Claims
Tribunal
7. Income of the deceased (A) Rs. 36,353/
8. AddFuture Prospects (B) 50%= Rs. 54,529/
9. LessPersonal expenses of the 1/3rd
deceased (C )
10. Monthly loss of dependency 36,353/ (after rounding of)
{ (A+B) - C =D}
11. Annual loss of dependency (Dx12) 4,36,236/
12. Multiplier (E) 15
13. Total loss of dependency (Dx12xE 65,43,480/ = F)
14. Medical Expenses (G) Nil.
15. Compensation for loss of love and Nil affection (H)
16. Compensation for loss of Rs. 40,000/ 15/07 Rashmi Gupta vs Madan Lal Page 31 of 32 15/07 Rashmi Gupta vs Madan Lal Page 32 of 32 consortium (I)
17. Compensation for loss of estate (J) Rs. 15,000/
18. Compensation towards funeral Rs. 15,000/ expenses (K)
19. TOTAL COMPENSATION Rs. 66,13,480/ (F+G+H+I+J+K =L)
20. RATE OF INTEREST AWARDED 9% 21 Interest amount up to the date of Rs. 65,96,944/ award (M)
22. Total amount including interest Rs. 1,32,10,424/ (L+M)
23. Award amount released Rs. 2,00,000/ each to the petitioners.
24. Award amount kept in FDRs Rs. 1,22,10,424/
25. Mode of disbursement of the award As per award and in terms amount to the claimant (s) (Clause of clause 29 of MCTAP.
29)
26. Next date for compliance of the 03.04.2018.
award. (Clause 31) (AMIT BANSAL) PO MACT N/W Rohini Courts, Delhi.
17.02.2018 15/07 Rashmi Gupta vs Madan Lal Page 32 of 32