Delhi District Court
Ahasan & Ors. vs Masum Ali & Ors. on 4 July, 2022
IN THE COURT OF SHRI ATUL KUMAR GARG : PRESIDING
OFFICER : MACT : SOUTH DISTT. : SAKET COURTS :
NEW DELHI
MACT No. 48/20
Ahasan & ors. Vs Masum Ali & Ors.
1. Ahasan,
S/o Sh. Sangeera,
R/o Roshangarh, Aminagar,
Sarai District, Baghpat, Uttar Pradesh,
.......... Injured
...... Petitioner
Versus
1. Masum Ali,
S/o Sh. Basat Ali,
R/o Village Mandwar, Luhasan,
PS Budhana, District Muzaffarnagar,
Uttar Pradesh.
................. (Driver)
2. Krishan Pal,
S/o ranjeet Singh,
R/o B-38, Kh. NO. 1682, Ground Floor,
Aya Nagar Extension, Phase-IV,
New Delhi.
............( Registered Owner )
3. The Oriental Insurance Company Ltd.,
At G-8, South Extension Part-I,
South Extension-I, New Delhi.
..... (Insurance Co.)
......Respondents
MACT No. 48/20, Ahasan & Ors. Vs Masum Ali and ors.,
MACT No. 49/20, Ahasan & Ors. Vs Masum Ali and ors.,
MACT No. 205/21, Ahasan Vs Masum Ali and ors. 04.07.2022 Page No. 1 of 37
MACT No. 49/20
Ahasan & ors. Vs Masum Ali & Ors.
1. Ahasan,
S/o Sh. Sangeera,
2. Sajid Ali,
S/o Sh. Ahasan,
3. Sajida,
D/o Ahasan,
4. Tamanna,
D/o Ahasan,
All resident of.-
Village Muradgaon,
Urf Roshangarh, Aminagar,
Sarai district, Baghpat, Uttar Pradesh.
.......... Injured
...... Petitioners
Versus
1. Masum Ali,
S/o Sh. Basat Ali,
R/o Village Mandwar, Luhasan,
PS Budhana, District Muzaffarnagar,
Uttar Pradesh.
................. (Driver)
2. Krishan Pal,
S/o ranjeet Singh,
R/o B-38, Kh. NO. 1682, Ground Floor,
Aya Nagar Extension, Phase-IV,
New Delhi.
............( Registered Owner )
3. The Oriental Insurance Company Ltd.,
MACT No. 48/20, Ahasan & Ors. Vs Masum Ali and ors.,
MACT No. 49/20, Ahasan & Ors. Vs Masum Ali and ors.,
MACT No. 205/21, Ahasan Vs Masum Ali and ors. 04.07.2022 Page No. 2 of 37
At G-8, South Extension Part-I,
South Extension-I, New Delhi.
..... (Insurance Co.)
......Respondents
&
MACT No. 205/21
Ahasan & ors. Vs Masum Ali & Ors.
1. Ahasan,
S/o Sh. Sangeera,
R/o Roshangarh, Aminagar,
Sarai District, Baghpat, Uttar Pradesh,
.......... Injured
...... Petitioner
Versus
1. Masum Ali,
S/o Sh. Basat Ali,
R/o Village Mandwar, Luhasan,
PS Budhana, District Muzaffarnagar,
Uttar Pradesh.
................. (Driver)
2. Krishan Pal,
S/o ranjeet Singh,
R/o B-38, Kh. NO. 1682, Ground Floor,
Aya Nagar Extension, Phase-IV,
New Delhi.
............( Registered Owner )
3. The Oriental Insurance Company Ltd.,
At G-8, South Extension Part-I,
South Extension-I, New Delhi.
..... (Insurance Co.)
......Respondents
MACT No. 48/20, Ahasan & Ors. Vs Masum Ali and ors.,
MACT No. 49/20, Ahasan & Ors. Vs Masum Ali and ors.,
MACT No. 205/21, Ahasan Vs Masum Ali and ors. 04.07.2022 Page No. 3 of 37
Date of Institution : 07.10.2021
Date of reserving of judgment/order : 01.07.2022
Date of pronouncement : 04.07.2022
JUDGMENT:
1. By this composite order, I shall disposed off the three petitions filed under Section 166 and 140 of the Motor Vehicle Act by the claimants for the injury sustained to Ahasan and compensation for the death of Imrana and fetus child seven months (since deceased) in a road accident occurred by the rash and negligent act of driving of offending vehicle bearing no. DL-12-CC-2024 (Swift Dzire) being driven by the respondent no. 1, owned by respondent no. 2 and insured with respondent no. 3.
2. The fact of the present case need not having any big canvas:-
"On 29.05.2018, Injured Ahasan along with his wife was coming to his village Roshangarh from Badarpur on Motorcycle no. UP-17-C-2026 being driven by Injured. At about 4.00 pm, when they reached near Gas Godam, Mandola, Tronica MACT No. 48/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 49/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 205/21, Ahasan Vs Masum Ali and ors. 04.07.2022 Page No. 4 of 37 City Ghaziabad, suddenly a swift D-zire bearing no. DL-12-CC-2024 being driven by its driver in a rash and negligent manner in a high speed came from behind and hit the motorcycle of the petitioner with great force. Resulting to which, they fell down and sustained grievous injury.
Petitioner Ahasan received grievous injury, Imrana, the wife of Ahasan and her seven months unborn child sustained fatal injury."
3. Respondent no. 1 and 2 have filed the written statement wherein it has been stated that the respondents are not liable to pay any compensation to the petitioner. At the time of accident, the respondent no. 1 was having valid and effective driving license to drive the vehicle and the vehicle bearing n. DL-12-CC-2204 was fully insured with the Oriental Insurance Company vide policy bearing no. 211200/31/2018/48310 valid for the period from 28.07.2017 to 27.07.2018. It has been further submitted that there is no breach of contract on the part of answering respondent no. 1 MACT No. 48/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 49/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 205/21, Ahasan Vs Masum Ali and ors. 04.07.2022 Page No. 5 of 37 and 2, if there is any liability in that event the insurance company is liable to indemnify the respondent no. 1 and 2.
4. Written statement has also been filed on behalf of the respondent no. 3 wherein it has been submitted that the present claim is not verified in accordance of law. The liability of the answering respondent is subject to the driver of the offending vehicle and the victim's vehicle holding a valid and effective driving license at the time of accident. It has been further submitted that the accident has been taken place due to rash and negligence of the victim as the main rider of the motorcycle was not obeying the traffic rules and regulations while plying his motorcycle on the road at the time of accident. However, it has admitted that the offending vehicle Maruti Swift D-Zire no. DL-12-CC-2204 was insured with the answering respondent vide policy no. 211200/31/2018/49310 from the period from 28.07.2017 to 27.07.2018 in the name of the respondent no. 2.
5. After completion of the pleadings of the parties, vide order dated MACT No. 48/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 49/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 205/21, Ahasan Vs Masum Ali and ors. 04.07.2022 Page No. 6 of 37 19.03.2021, following issues have been framed in case death case of Imrana and her seven months unborn child:-
1. Whether the deceased Imrana and her unborn child succumbed to the fatal injuries in a road accident on 29.05.2018 at about 4.00 pm near Gas Godam, Mandola Tronica City, Ghaziabad due to rash and negligent driving of the vehicle bearing registration number DL-12-CC-2024 being driven by the respondent no. 1, owned by the respondent no. 2 and insured with the respondent no. 3?....OPP.
2. In case, issue no. 1 is decided in affirmative then to what amount of compensation, the petitioner is entitled and from whom? OPP
3. Relief.
6. Vide order dated 15.11.2021, following issues have been framed in injury case of Ahasan:-
1. Whether the injured Ahasan sustained grievous injury and his wife deceased Imrana along with her unborn child seven months old succumbed to the injuries sustained in a road accident occurred on 29.05.2018 at around 4.00 pm near gas Godam, Mandola, Tronica City Ghaziabad due to rash and negligent driving of Swift D-Zire bearing no. DL-12-CC-2024 MACT No. 48/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 49/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 205/21, Ahasan Vs Masum Ali and ors. 04.07.2022 Page No. 7 of 37 being driven by Masum Ali/ respondent no. 1, owned by Krishan Pal/ respondent no. 2 and insured with respondent no. 3 (The Oriental Insurance Company Ltd.) ?...OPP.
2. To what amount of compensation the injured Ahasan and LRs of deceased Imrana are entitled and from whom? ..OPP
3. Relief.
7. In order to substantiate his claim, the claimant has examined two common witnesses including himself as PW 1 and PW2 Gulfam in all the three petitions.
8. PW 1 in his affidavit of evidence deposed that on 29.05.2018, Imrana since deceased with the deponent was coming to her village Muradgaon @ Roshangarh from Badarpur on motorcycle bearing no. UP-17C-2026. At about 4.00 pm, when they reached near Gas Godam, Mandola, Tronica City Ghaziabad suddenly a swift D-Zire bearing no. DL-12-Cc-2204 being driven in a rash and negligent manner had hit his motorcycle from behind with great force. Resulting to which they both fell down and his wife and seven months unborn child had succumbed to the fatal MACT No. 48/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 49/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 205/21, Ahasan Vs Masum Ali and ors. 04.07.2022 Page No. 8 of 37 injuries. He has relied upon the following documents:-
1. Ex. PW 1/1 is the copy of the aadhar card (OSR).
2. Ex. PW ½ is the copy of his driving license (OSR).
3. Ex. PW 1/3 is de-exhibited and the copy of the aadhar card of the deceased Imrana and marked as Mark X.
4. Ex. PW ¼ (colly) (3 pages) is the copy of Aadhar card of children Tamanna, Sajida and Sajid Ali (OSR).
5. Ex. PW 1/5 (colly) (12 pages) is the certified copy of criminal record.
6. Ex. PW 1/6 is the copy of the pass book of bank account of deceased Imrana for date of birth (OSR).
7. Ex. PW 1/7 (2 pages) is the certified copy of his MLC.
8. Ex. PW 1/8 (9 pages) is the treatment record.
9. This witness was put to the test of cross examination whereby he admitted that they are permanent resident of Uttar Pradesh. He admitted that his wife was working and was also a housewife before the accident. His wife was working as a tailor at home. He work as labourer. He further deposed that he was holding a valid MACT No. 48/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 49/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 205/21, Ahasan Vs Masum Ali and ors. 04.07.2022 Page No. 9 of 37 and effective driving license at the time of accident and the same has been exhibited as Ex. PW ½. The site plan was prepared at his instance. He further deposed that he and his wife were traveling on the motorcycle and there was no other person on the motorcycle.
He denied that there were three people in all riding on his motorcycle excluding the unborn child. He admitted that his wife was not wearing a helmet whereas he was wearing a helmet. He denied that no MLC was made for his accidental injuries and document Ex. PW 1/7 is forged, fabricated and procured document. He denied that he was drunk at the time of accident and he did not sustain any accidental injuries due to the accident dated 29.05.2018. He denied that the accident has taken place due to his own rash and negligent act of driving as he was not maintaining the traffic rules and regulations at the time of accident. He denied that the accident took place due to rash and negligent driving of the driver of the offending vehicle bearing no. DL-12-CC-2204.
10.PW 2 Sh. Gulfam deposed the same facts as deposed by the PW 1 in his affidavit of evidence. He is the eye witness in the present MACT No. 48/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 49/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 205/21, Ahasan Vs Masum Ali and ors. 04.07.2022 Page No. 10 of 37 case.
11.During the cross examination he deposed that he has appeared in the court at the instance of Ahasan. He did not remember the date of the accident. He only remembered the place of accident. He did not remember the day of accident also. He deposed that the offending vehicle was of light white colour. It was make Swift D- zire bearing no. ....2204. He only remembered the last four digit of the vehicle. He further deposed that the vehicle was hit by the offending vehicle which was a TVS star of red colour. He did not remember the registration number of the vehicle which was hit by the offending vehicle. He is a taxi driver. He denied that he is unemployed. He deposed that he has not called the police. Police has recorded his statement at the police station on the date of accident. His statement was recorded twice. He denied that there were three people traveling in the motorcycle at the time of accident. He knew the claimant as his distant relation.
12.Respondents have not examined any witness in their defence. MACT No. 48/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 49/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 205/21, Ahasan Vs Masum Ali and ors. 04.07.2022 Page No. 11 of 37
13.Ld. Counsel for the petitioner submits that from the testimony of the PW 1 and PW 2, it has been proved on record that the accident has been caused due to the rash and negligent act of driving of the respondent no. 1 owned by respondent no. 2 and insured with respondent no. 3. He further argued that the claimant Ahasan has sustained injury in the accident. His MLC has been prepared. The wife (since deceased) of the claimant was working as tailor at home and the claimant was working as labour at the time of accident. He made prayer that the maximum compensation be awarded to the claimant.
14.On the other hand, Ms. Vandana Kahlon, Ld. Counsel for the insurance company has rebutted the arguments stating that it is the claimant who is negligent in driving the motorcycle. PW 2 who is the eye witness, which is a procured witness. His testimony is full of doubt and can not be said to be the eye witness. She has rebutted the testimony of PW 2 where in the cross examination he admitted that he did not remember the day of accident. He further MACT No. 48/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 49/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 205/21, Ahasan Vs Masum Ali and ors. 04.07.2022 Page No. 12 of 37 admitted that he did not remember the registration number of the vehicle which was hit by the offending vehicle. He had further drawn the attention towards the cross examination of PW 2 where he deposed that he was about 15-20 meter behind the vehicle of Ahasan. He submitted that the above cross examination reveals that the witness was not present at all at the spot, rather than he is a procured witness. She further stated that the claimant has not suffered any injuries due to the accident dated 29.05.2018 which is why he has nowhere mentioned in the evidence by way of affidavit filed by him that he has suffered any injuries in the accident. She further argued that no MLC has been made on the date of accident and the purported MLC that has been exhibited is a procured document and is dated 30.05.2018 i.e., one day after the accident. It does not even mention any accidental injuries and history of RTA. Even the treatment record filed has no continuity or bearing with any injuries sustained in the accident and are a sham. She further stated that the deceased was permanent resident of Ghaziabad, Uttar Pradesh and hence minimum wage of an unskilled worker of Uttar Pradesh shall be applicable. Therefore, MACT No. 48/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 49/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 205/21, Ahasan Vs Masum Ali and ors. 04.07.2022 Page No. 13 of 37 the claimants are entitled to financial dependency for the services she would have rendered as a housewife @ 12,000/- per annum and to loss of estate as per the judgment of Delhi High court passed in MACA 601/17 in Keith Rowe Vs Prashant Sagar & Ors.
15.I have heard the arguments at bar and gone through the evidence brought and examined by the parties and my issue-wise findings are as under:-
ISSUE NO. 1
16. 1. Whether the injured Ahasan sustained grievous injury and his wife deceased Imrana along with her unborn child seven months old succumbed to the injuries sustained in a road accident occurred on 29.05.2018 at around 4.00 pm near gas Godam, Mandola, Tronica City Ghaziabad due to rash and negligent driving of Swift D-Zire bearing no. DL-12-CC-2024 being driven by Masum Ali/ respondent no. 1, owned by Krishan Pal/ respondent no. 2 and insured with respondent no. 3 (The Oriental Insurance Company Ltd.) ?...OPP.
17.It is well settled law that where petition under Section 166 of the Act is instituted, it becomes the duty of the petitioner to establish MACT No. 48/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 49/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 205/21, Ahasan Vs Masum Ali and ors. 04.07.2022 Page No. 14 of 37 rash and negligent driving by the driver. In a petition under Motor Vehicles Act, Tribunal need not go into the technicality because strict rules of procedure and evidence are not followed. Basically, in road accident cases, Tribunal has simply to quantify the compensation which is just rational and reasonable on the basis of enquiry. Though it is an admitted legal position that the negligence on the part of driver with respect to the use of vehicle needs to be established but the same is to be established on the principles of preponderance of probabilities as decided in New India Assurance Co. Ltd. vs. Harsh Mishra & Ors. III(2015) ACC 435 Delhi.
18.In the present case, though the insurance company has disputed the accident as well as the manner of the accident and argued that the PW 2 is a procured witness. Be that it may be that PW 2 is a procured witness but the fact of accident and the fatal injury sustained to Imrana and her unborn child cannot be overlooked. Moreover, that is no need to examine the witness particularly when the PW 1, the victim himself appeared in the witness box and MACT No. 48/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 49/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 205/21, Ahasan Vs Masum Ali and ors. 04.07.2022 Page No. 15 of 37 narrated the manner of accident. Insurance company has not examined any witness contrary to the fact that the accident was occurred due to the negligence of the petitioner also so that it can claim any contributory negligence and deduct the amount. Therefore, it has been proved on record that the accident was caused by the respondent no. 1 while driving the vehicle in a rash and negligent manner. Hence, the issue no. 1 stands proved in favour of the petitioners and against the respondent. ISSUE NO. 2
19. Now, the court has to assess as to how much compensation be awarded to the claimant and by whom? First of all the court has to decide as to whom the liability to pay the compensation is fastened. First of all this court has to assess as to whom liability to pay the compensation is fastened. As it is an admitted fact that the respondent no. 1 was driving the offending vehicle, therefore primary liability to compensate the petitioner is that of respondent no.1. As the offending vehicle was owned by respondent no.2, so, it is vicariously liable to compensate the petitioner. It is an MACT No. 48/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 49/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 205/21, Ahasan Vs Masum Ali and ors. 04.07.2022 Page No. 16 of 37 admitted position on record that the offending vehicle was insured with respondent no. 3, therefore, respondent no.3 becomes contractually liable to pay the compensation towards the liability of the insured.
PETITION NO. 48/2020, AHASAN & ORS. VS MASUM ALI AND ORS. (DEATH CASE OF UNBORN CHILD)
20.To decide whether a child in the womb of the mother can be called as a person, it is pertinent to discuss different stages of birth of a child in the womb of a mother. Technically the term developing ovum is used for the first seven to ten days after conception i.e. until implantation occurs. It is called an 'embryo' from one week to the end of the second month and later it is called 'fetus'. It becomes an infant only when it is completely born. The life may enter immediately on the date of conception in the form of a small cell, which gets multiplied, but physically a mother can feel the movement of child only when the foetus is twenty weeks old i.e., five months, as the cell changes its structures and texture to become an eye, legs, bones, blood, head etc. and only when the MACT No. 48/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 49/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 205/21, Ahasan Vs Masum Ali and ors. 04.07.2022 Page No. 17 of 37 child makes movements touching the internal walls of the womb, then the actual life does take its physical form, therefore, there may be controversy as regards the exact date of life entering the foetus but there cannot be any controversy as regards the life of the unborn child if a woman is carrying seven months pregnancy, as in many instances premature delivery takes place during the seventh month of pregnancy and the child still survives. An unborn child aged five months onwards in the mother's womb till its birth can be treated as equal to a child in existence. The unborn child to whom the live birth never comes can be held to be a 'person' who can be the subject of an action for damages for his death. As already stated above a person means a human being regarded as an individual and an individual's body : concealed on his person'. Therefore, human fetus to whom person hood could be attributed was also destroyed in the accident in the instant case; had the accident not occurred the unborn child would have survived and seen the light of the day. An unborn child in the womb of a mother, if it is in the pregnancy of five months duration, it can safely be accepted to be a child who is yet to take MACT No. 48/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 49/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 205/21, Ahasan Vs Masum Ali and ors. 04.07.2022 Page No. 18 of 37 birth and he can therefore be regarded as a human foetus who can be regarded as individual and if that foetus meets an end due to an accident involving a motor vehicle before it is actually born to live, a claim petition for grant of compensation can certain be maintained by mother or father or both, because, if the accident had not taken place, it would have certainly seen the light of day as a human being and different part of the family.
21. Here, in the present case, the child was seven months unborn. PW 1 has deposed that he along with his wife were coming to their village Roshangarh from Badarpur on motorcycle. When they reached near Gas Godam, Mandola, Tronica City, Ghaziabad, the offending vehicle bearing no. DL-12-CC-2024 being driven by its driver in a rash and negligent manner had hit their motorcycle from behind. Resulting to which claimant and his wife Imrana fell down. Wife of the claimant was seven months pregnant and she and her seven months unborn child succumbed to the injuries.
22.Ld. counsel for the insurance company submitted that the compensation has to be given following the guidelines as laid MACT No. 48/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 49/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 205/21, Ahasan Vs Masum Ali and ors. 04.07.2022 Page No. 19 of 37 down by Hon'ble Supreme Court in National Insurance Company Ltd. Vs Kusuma and ors. in Civil Appeal No. 7212 of 2011 arising out of SLP (Civil) no. 17905 of 2008 decided on 23.08.2011, according to which the compensation has been limited / fixed upto Rs. 1,80,000/- in death case of unborn child.
23. It was held that "6. Applying the principle indicated by this Court in New India Assurance Company Ltd. Vs. Satender & Ors.1, in relation to assessment of quantum of compensation on the death of a child in an accident, the High Court, by a short judgment allowed the appeal in part and enhanced the compensation to a consolidated amount of `1,80,000/- with interest @ 6% per annum from the date of the petition till the date of payment.
"9. Thus, under the given circumstances, the question that survives for our consideration is whether the quantum of compensation determined by the High Court, at a lump sum amount of `1,80,000/-, for the loss of still born child, treating it as a child, and towards pain and sufferings to the respondent-claimant awarded by the Tribunal at `50,000/- and `10,000/- respectively, warrants interference by this Court.
In Satender & Ors. (supra), relied upon by the High Court, while dealing with a claim for compensation under the Act in relation to the death of a nine year old child in a truck accident, this Court had observed as follows :
MACT No. 48/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 49/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 205/21, Ahasan Vs Masum Ali and ors. 04.07.2022 Page No. 20 of 37 "9. There are some aspects of human life which are capable of monetary measurement, but the totality of human life is like the beauty of sunrise or the splendor of the stars, beyond the reach of monetary tape-measure. The determination of damages for loss of human life is an extremely difficult task and it becomes all the more baffling when the deceased is a child and/or a non- earning person. The future of a child is uncertain.
Where the deceased was a child, he was earning nothing but had a prospect to earn.
The question of assessment of compensation, therefore, becomes stiffer. The figure of compensation in such cases involves a good deal of guesswork. In cases, where parents are claimants, relevant factor would be age of parents."
It was further observed that:
"In cases of young children of tender age, in view of uncertainties abound, neither their income at the time of death nor the prospects of the future increase in their income nor chances of advancement of their career are capable of proper determination on estimated basis. The reason is that at such an early age, the uncertainties in regard to their academic pursuits, achievements in career and thereafter advancement in life are so many that nothing can be assumed with reasonable certainty. Therefore, neither the income of the deceased child is capable of assessment on estimated basis nor the financial loss suffered by the parents is capable of mathematical computation."
13. It is quite true, as observed in Satender & Ors. (supra), that the question of assessment of compensation in a case where the deceased MACT No. 48/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 49/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 205/21, Ahasan Vs Masum Ali and ors. 04.07.2022 Page No. 21 of 37 is an infant involves a good deal of guesswork but in our view it cannot be a wild guesswork. As aforesaid, some material has to be adduced by the claimants to prove that they entertained a reasonable expectation of pecuniary advantage from the deceased. There are quite a few precedents providing guidelines for determination of compensation in such cases but because of nature of the order we propose to pass on facts in hand, we deem it unnecessary to burden the judgment by making a reference to all these cases, except to note that in Lata Wadhwa & Ors.
Vs. State of Bihar & Ors.3 as also in M.S. Grewal & Anr. Vs. Deep Chand Sood & Ors.4, wherein a large number of young school going children had lost their lives, respectively in fire and by drowning, multiplier method was adopted and applied for assigning value of future dependency to determine the quantum of compensation.
14. Having examined the instant case on the touchstone of the aforestated broad principles, we are of the opinion that neither the Tribunal nor the High Court applied any principle for determination of the amount of compensation on account of the death of a still born child. It is clear from a bare reading of the orders of the Tribunal and the High Court that no reasons have been indicated by the Tribunal while awarding a lump sum amount of `50,000/- towards the loss of unborn child and `10,000/- towards pain and suffering to the mother and by the High Court enhancing the said amounts to a consolidated amount of `1,80,000/-."
MACT No. 48/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 49/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 205/21, Ahasan Vs Masum Ali and ors. 04.07.2022 Page No. 22 of 37
24. In the case in hand, this court would be bound by the judgment of Hon'ble Supreme Court in National Insurance Company Ltd. Vs Kusuma and ors. in Civil Appeal No. 7212 of 2011 arising out of SLP (Civil) no. 17905 of 2008 decided on 23.08.2011, where certain amount has been fixed. Therefore, I award Rs 1,80,000/- towards the loss of still born child. PETITION NO. 205/20201 AHASAN & ORS. VS MASUM ALI AND ORS. (INJURY CASE OF AHASAN)
25.In the present case, the petitioner/ injured Ahasan has examined himself as PW 1. He deposed about the manner of accident. However, in his testimony, nowhere he has mentioned about his injury sustained to him in the present accident on 29.05.2018. The MLC bearing no. 1462/18 does not mention about the road traffic accident. Moreover, the MLC has been prepared on 30.05.2018 at about 12.25 pm, however the accident occurred on 29.05.2018. Injuries mentioned on the MLC has been opined to be simple in nature. Moreover, the medical documents placed on record are of MACT No. 48/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 49/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 205/21, Ahasan Vs Masum Ali and ors. 04.07.2022 Page No. 23 of 37 much later to the accident i.e., there is a gap of more than one year. These documents placed on record do not corroborate the injuries sustained to the claimant in the accident. The period is of such that anything could have happened with him during this period which has no relevance to this accident. Hence, looking into the injury which is opined to simple in nature and the fact that in the accident, he lost his wife and unborn child and he was driving the motorcycle which was hit by the offending vehicle, I award a lump-sum amount of Rs. 15,000/- as compensation to him. PETITION NO. 49/2020, AHASAN & ORS. VS MASUM ALI AND ORS. (DEATH CASE OF IMRANA)
26.Admittedly, deceased Imrana was died because of the injuries suffered by him in the accident which was occurred due to the negligence of respondent no.1. Hence, the LRs of deceased are entitled for compensation for the financial loss suffered by them on account of the death of Imrana. The petitioners, being the legal representatives of the deceased, shall be entitled for the following reliefs as per the law discussed in National Insurance Co. Ltd. MACT No. 48/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 49/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 205/21, Ahasan Vs Masum Ali and ors. 04.07.2022 Page No. 24 of 37 vs. Pranay Sethi & Ors. decided in Special Leave Petition Civil no. 25590 of 2014 wherein the extent of the claim under different heads was discussed in detail and it was held that following amounts shall be considered as just and reasonable award under the following heads i.e., Loss of Consortium, Funeral expenses and loss of Estate. Loss of funeral expenses and loss of estate has been limited to the extent of Rs. 15,000/- each subject to enhancement of Rs. 10% of every three year since the judgment in the above said judgment (Supra).
27.So far so, the loss of consortium is concerned, it has been decided by the Apex Court on 07.09.2020 in Civil Appeal No. 3093/2020 arising out of SLP (C) No. 23478/2019 in case titled as The New India Assurance Company Limited Vs Smt. Somwati and Ors. that wife and other claimants are entitled for Loss of Consortium whether it is wife or son or daughter. Apex court had also referred to The Black's Law dictionary in this respect "word consortium"
has been defined in 10th Edition also simultaneously notices the filial consortium, parental consortium and spousal consortium."
MACT No. 48/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 49/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 205/21, Ahasan Vs Masum Ali and ors. 04.07.2022 Page No. 25 of 37 Filial consortium a child's society, affection and companionship given to a parent. Parental consortium: a parents' society, affection and companionship given to a child. Spousal consortium: A spouses' society, affection and companionship given to the other spouse. Therefore, all the four petitioners being the husband, minor son and two daughters of the deceased are entitled to consortium. Therefore, on the following heads, compensation is to be awarded:-
S. No. Head Amount (in Rs.)
1 Loss of consortium 1,60,000/-
[40,000 x 4]
2 Funeral Expenses 15,000/-
3 Loss of Estate 15,000/-
28. As far as the head of Loss of Dependency is concerned, same is to be calculated as per the multiplier method which has been adopted as a thumb rule in Sarla Verma vs. DTC [2009 (6) Scale 129] and various other judgments, unless there are exceptional circumstances which make it necessary to depart from the said rule. Further, in the judgment titled as National Insurance Co. Ltd. vs. Pranay Sethi & Ors. (Supra) it has been concluded by MACT No. 48/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 49/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 205/21, Ahasan Vs Masum Ali and ors. 04.07.2022 Page No. 26 of 37 the Hon'ble Supreme Court that in determination of the multiplicand the deduction for personal and living expenses the Tribunals shall be guided by the law as laid in Sarla Verma's case.
29. Here, the deceased was married. As per the copy of the aadhar card, the date of birth of the deceased is 01.01.1989. Hence, the age of the deceased was 29 years. Hence, the applicable multiplier would be '17'.
30.PW-1 Ahasan, the husband of the deceased deposed that the deceased was housewife and she was doing the work of tailor at home. She was earning Rs. 15000/- - 20,000/- per months. Further, for proving the salary of the deceased, petitioner has not placed on record any income proof of the deceased that she was earning Rs. 15,000/- - Rs. 20,000/- per month.
31.It is important to mention here that being the housewife she had been rendering gratuitous services to her family. One has to admit that in the long run, the services rendered by a woman in the MACT No. 48/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 49/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 205/21, Ahasan Vs Masum Ali and ors. 04.07.2022 Page No. 27 of 37 household sustain a supply of labour to the economy and keep the human societies by weaving the social fabric and keeping it in good repair.
32.The plea of the counsel for the insurance company is that in the present case the deceased was self employed and as well as housewife. She was also contributing her income upon her family. She further argued both the claimant/ husband of the deceased and deceased were contributing their income upon their family, therefore, there is no loss of dependency. Claimants are only entitled to loss of 1/4th of the income of the deceased as loss of estate to the appellant. She has relied upon the judgment of Delhi High Court passed in MACA 601/17 in Keith Rowe Vs Prashant Sagar & Ors. [page 7 [ para 20] (iv)]. However, the plea of the counsel for the insurance company is not tenable because in the para 20 of the judgment it has been stated that "if the deceased is survived by an educated employed wife earning an amount almost equal to that of her husband and if each was maintaining a separate establishment, the question of 'loss of dependency' may not arise. MACT No. 48/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 49/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 205/21, Ahasan Vs Masum Ali and ors. 04.07.2022 Page No. 28 of 37 Each will be spending from his/ her earning towards his living and personal expenses." It is a matter of fact that here the deceased was not an educated person. She was the house wife and self employed. However, there is no mention of the education in the affidavit of evidence of the PW 1 about the deceased in relation to her work nor the insurance company has put any suggestion in the cross examination of PW 1 regarding the education of the deceased. Therefore, it is assumed that this Tribunal has no option but to take the minimum wages of an 'unskilled person' as applicable in "Uttar Pradesh". The accident took place on 29.05.2018 and the minimum wages for an unskilled person as on the date of accident were Rs. 7,613/- per month applicable in Uttar Pradesh.
33. Hon'ble Supreme Court in National Insurance Ltd. vs. Pranay Sethi & Ors. (Supra) has held that future prospects have to be considered for calculating the loss of future dependency. Hon'ble Supreme Court in National Insurance Ltd. vs. Pranay Sethi & Ors. (Supra) has held that future prospects have to be considered for calculating the loss of income. The deceased was below 50 MACT No. 48/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 49/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 205/21, Ahasan Vs Masum Ali and ors. 04.07.2022 Page No. 29 of 37 years of age therefore, an addition of 40% as future prospects has to be made. After adding future prospects, the income of the deceased comes to Rs. 10,658/- (Rs. 7613/- + 7613/- x 40/ 100). Legal heirs i.e., petitioner no. 1 to 4 can be said to be dependent upon the income of the deceased being the husband, minor son, and two minor daughter of the deceased. Therefore, one-fourth is to be deducted towards personal and living expenses. After deduction, the income of the deceased comes to Rs. 7,993/-. Thus, the loss of dependency comes to Rs. 16,30,572/- (Rs. 7,993/- x 12 x 17). I therefore, award Rs. 16,30,572/- to the petitioners towards loss of dependency.
34.In view of the decision on above mentioned issues, the total compensation in favour of the petitioner is calculated as under :-
LOSS OF DEPENDENCY = Rs. 16,30,572.00
FUNERAL EXPENSES = Rs. 15,000.00
LOSS OF ESTATE = Rs. 15,000.00
LOSS OF CONSORTIUM = Rs. 1,60,000.00
=============
TOTAL = Rs. 18,20,572.00
=============
MACT No. 48/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 49/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 205/21, Ahasan Vs Masum Ali and ors. 04.07.2022 Page No. 30 of 37 R E LI EF
35. In view of my findings on the issues, I award a sum of Rs. 18,20,572/- (Rupees Eighteen Lakh Twenty Thousand Five Hundred and Seventy Two) to petitioner/ Legal Heirs Ahasan, Sajid Ali, Sajida and Tamanna as compensation along-with interest @ 6% per annum from the date of filing the claim petition till its realization.
RELEASE OF AWARD AMOUNT IN THE DEATH CASE OF IMRANA (In the share of Petitioner no. 1 i.e. husband of the deceased)
36.A sum of Rs. 9.20.572/- along-with the proportionate interest is awarded to the petitioner no.1 being wife of the deceased.
Out of this amount, an amount of Rs. 7,00,000/- is directed to be kept in the form of fixed deposit in the following phased manner :
• Rs.1,00,000/- for a period of 01 year. • Rs.1,00,000/- for a period of 02 years. • Rs.1,00,000/- for a period of 03 years. • Rs.1,00,000/- for a period of 04 years. • Rs.1,00,000/- for a period of 05 years. • Rs.1,00,000/- for a period of 06 years. • Rs.1,00,000/- for a period of 07 years.
MACT No. 48/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 49/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 205/21, Ahasan Vs Masum Ali and ors. 04.07.2022 Page No. 31 of 37 (In the share of Petitioner no. 2, 3 and 4 , the minor son and two minor daughters of the deceased)
37. A sum of Rs. 3,00,000/- each along-with the proportionate interest is awarded to the petitioner no. 2, 3 and 4 being the minor son and two minor daughters of the deceased respectively. The entire amount is directed to be kept in the shape of FDR till hey attain the age of majority.
Deposition of awarded amount with STATE BANK OF INDIA, Saket Court Branch, New Delhi.
38. In consonance to the idea conceptualized and formulated in various land mark judgments of our own Hon'ble High Court, by which part of the awarded amount is ordered to be kept in fixed deposit / savings account by Hon'ble High Court, respondent no.3/insurance company is directed to deposit the awarded amount in favour of the petitioners with State Bank of India, Saket Courts Complex Branch, against account of petitioners within a period of 30 days from today, failing which the respondent no.3/ insurance company shall be liable to pay future interest @ 12% per annum till realization (for the delayed period).
39. The respondent no. 3 is directed to credit the amount directly to the MACT account of State Bank of India, District Court, Saket branch. Details of the bank i.e. IFSC code etc. have been provided to the ld. counsel for the insurance company. MACT No. 48/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 49/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 205/21, Ahasan Vs Masum Ali and ors. 04.07.2022 Page No. 32 of 37
40. The award amount shall be deposited with State Bank of India, Saket Court Branch, New Delhi by way of RTGS/NEFT/IMPS in account of MACT FUND PARKING A/c 35195787436 IFS Code SBIN0014244 and MICR code 110002342 under intimation to the Nazir alongwith calculation of interest and to the Counsel for the petitioners.
41. MODE OF DISBURSEMENT OF THE AWARD AMOUNT TO THE CLAIMANTS AS PER PROVISIONS OF THE 'MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE'(MCTAP)
42. Upon the aforesaid amount being deposited, the State Bank of India, Saket Court Complex, New Delhi, is directed to keep the awarded amount in the "fixed deposit / saving account'' in the following manner:-
43. The interest on the fixed deposit be paid to the petitioners / claimants by Automatic Credit of interest of their saving bank accounts with State Bank of India, Saket Court Branch, New Delhi.
44.Withdrawal from the aforesaid account shall be permitted to claimants / petitioners after due verification and the Bank shall issue photo identity Card to claimants / petitioners to facilitate identity.
45.No cheque book be issued to claimants / petitioners without the permission of this Court.
MACT No. 48/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 49/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 205/21, Ahasan Vs Masum Ali and ors. 04.07.2022 Page No. 33 of 37
46.The original fixed deposit receipts shall be retained by the Bank in safe custody. However, the original Pass Book shall be given to the claimants/petitioners alongwith the photocopy of the FDRs.
47.The original fixed deposit receipts shall be handed over to claimants / petitioners at the end of the fixed deposit period.
48.No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the permission of this Court.
49.Half yearly statement of account be filed by the Bank in this Court.
50.On the request of claimants / petitioners, the Bank shall transfer the Savings Account to any other branch of State Bank of India, according to their convenience.
51.Claimants / petitioners shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit Account to Branch Manager, State Bank of India, Saket Courts Complex Branch, New Delhi.
52.The bank is also directed to get the nomination form filled by the claimants at the time of preparation of FDRs
53.The bank is also directed to keep the money received from the respondent no.3 in an FDR in the name of the bank till the FDRs are prepared in the name of the claimants, so that the benefit of better interest may be given to the claimants for the said period.
54. The Manager, State Bank of India, District Court Saket branch is directed not to release any amount to the petitioners from this branch, unless ordered by the Tribunal in terms of the order of the Hon'ble High Court in FAO No. 842/2003 and CM Applications No. 32859/2017, 41125-41127/2017 in Rajesh Tyagi & Ors. vs. Jaibir Singh & Ors. dated 09.03.2018. It is made clear that the amount including the maturity amount of the FDRs shall be released to the petitioner through RTGS/ NEFT directly in the personal bank account of the petitioners of the bank nearest to their place of residence.
DIRECTIONS FOR THE RESPONDENTS
55. The respondent no. 3 is directed to file compliance report of its having deposited the awarded amount with State Bank of India, Saket Court Branch in this Tribunal within a period of 30 days MACT No. 48/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 49/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 205/21, Ahasan Vs Masum Ali and ors. 04.07.2022 Page No. 34 of 37 from today.
56. The respondent no. 3 shall intimate the claimants / petitioners about their having deposited the amount in favor of the petitioners in terms of the award, at the address of the petitioners mentioned at the title of the award, so as to facilitate them to withdraw the same.
57. Copy of this award / judgment be given to the parties for compliance.
58. The case is now fixed for compliance by the 05.08.2022.
59. It is pertinent to mention that the husband of the deceased was granted interim award in death case of MACT No. 49/20 being the LR of the deceased Imrana vide order dated 21.03.2022.
FORM IV-A SUMMARY OF COMPUTATION OF AWARD AMOUNT IN DEATH CASES TO BE INCORPORATED IN THE AWARD Date of accident : 29.05.2018 Name of the deceased : Imrana Age of the deceased : 29 years Occupation of the : Housewife Income of the deceased : Rs. 7,993/-
Name, age and relationship of legal representatives of deceased :
S. Name Age (at the Relation
No. time of
accident)
MACT No. 48/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 49/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 205/21, Ahasan Vs Masum Ali and ors. 04.07.2022 Page No. 35 of 37 1 Ahasan 34 years Husband 2 Sajid Ali 13 years Minor Son 3 Sajida 16 years Minor daughter 4 Tamanna 9 years Minor daughter Computation of Compensation S. Heads Awarded by the Claims No. Tribunal 7 Income of the deceased (A) Rs. 7,613/-
8 Add - Future Prospects (B) Rs. 3,045/-
9 Less - Personal expenses of the Rs. 2,665/-
deceased (C) 10 Monthly loss of dependency Rs. 7,993/-
[(A+B)-C = D] 11 Annual loss of dependency (Dx12) Rs. 95,916/- 12 Multiplier (E) '17' 13 Total loss of dependency Rs. 16,30,572/-
(Dx12xE=F) 14 Medical Expenses (G) Nil 15 Compensation for Loss of Rs. 1,60,000/-
Consortium (H) 16 Compensation for loss of estate (I) Rs. 15,000/- 18 Compensation towards funeral Rs.15,000/-
expenses (J) 19 TOTAL COMPENSATION Rs. 18,20,572/-
(F+G+H+I+J= K) 20 RATE OF INTEREST AWARDED 6% MACT No. 48/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 49/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 205/21, Ahasan Vs Masum Ali and ors. 04.07.2022 Page No. 36 of 37 21 Interest amount upto the date of Rs. 80,901/-
award (M) 22 Total amount including interest Rs. 18,51,473/-
deducting the interim amount of Rs.
50,000/- (M+O) 23 Award amount released Rs. 2,51,473/-
24 Award amount kept in FDRs Rs. 16,00,000/- 25 Mode of disbursement of the award Some amount is directed to amount to the claimant (s). be released and some amount is directed to be kept in the shape of FDR 26 Next date for compliance of the 05.08.2022 award Announced in the Open Court on 04th July, 2022 ATUL KUMAR GARG) Presiding Officer : MACT (S) Saket Courts : New Delhi MACT No. 48/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 49/20, Ahasan & Ors. Vs Masum Ali and ors., MACT No. 205/21, Ahasan Vs Masum Ali and ors. 04.07.2022 Page No. 37 of 37