Delhi District Court
Smt. Veenita Devi vs Sh. Baiju Kumar (Driver & Owner) on 6 November, 2019
IN THE COURT OF SH. RAJ KUMAR
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNAL:
(WEST-01):DELHI
MACT Case No. 47665/14
1. Smt. Veenita Devi
W/o Late Sh. Raj Kishor
2. Sharwan Kumar
S/o Late Sh. Raj Kishor
Aged about 13 years
3. Kajal
D/o Late Sh. Raj Kishor
aged about 10 years
4. Anjali
D/o Late Sh. Raj Kishor
aged about 5 years
5. Ashish
S/o Late Sh. Raj Kishor
aged about 1 year
(all petitioners no.2 to 5 are minors
and through their natural guardian and mother)
All R/o V.P.O. Akaur,
P.S. Benipatti, Madhuwani, Bihar
........Petitioners
Versus
1. Sh. Baiju Kumar (Driver & Owner)
S/o Sh. Ram Chander Lal
R/o G-2/16, Sai Enclave,
Mohan Garden, Uttam nagar,
Delhi-110059
2. The New India Assurance Co. Ltd. (Insurer)
38-39, Navyug Market,
Uttar Pradesh
......... Respondents
Date of Institution: : 15.02.2010.
Date of reserving order/judgment : 19.10.2019
Date of pronouncement: : 06.11.2019
MACT Case No. 47665/14 Page No. 1/23
AWARD
FORM-V
COMPLIANCE OF THE PROVISIONS OF THE MODIFIED CLAIMS TRIBUNAL AGREED PROCEDURE
1. Date of the accident 13.10.2009
2. Date of intimation of the accident by the No intimation was given Investigation Officer to the Claims Tribunal.
3. Date of Intimation of the accident by the Date not mentioned Investigating Officer to the Insurance Company.
4. Date of filing of Report under Section 173 Date not mentioned Cr. P.C. before the Metropolitan Magistrate.
5. Date of filing of Detailed Accident DAR was not filed in the Information Report (DAR) by the present matter as the Investigating Officer before Claims present matter pertains to Tribunal. the year 2009.
6. Date of service of DAR on the Insurance N.A. Company.
7. Date of service of DAR on the claimant N.A.
(s).
8. Whether DAR was complete in all N.A. respects?
9. If not, whether deficiencies in the DAR ----
removed later on?
10. Whether the police has verified the N.A. documents filed with DAR?
11. Whether there was any delay or N.A. deficiency on the part of the Investigating Officer ? If so, whether any action/ direction warranted?
12. Date of appointment of the Designated Not mentioned Officer by the Insurance Company
13. Name, address and contact number of N.A. the Designated Officer of the Insurance Company.
MACT Case No. 47665/14 Page No. 2/2314. Whether the Designated Officer of the Yes Insurance Company submitted his report within 30 days of the DAR?
15. Whether the Insurance Company No admitted the liability? If so, whether the Designated Officer of the Insurance Company fairly computed the compensation in accordance with law.
16. Whether there was any delay or No deficiency on the part of the Designated Officer of the Insurance Company? If so, whether any action/direction warranted?
17. Date of response of the claimant (s) to N.A. the offer of the Insurance Company.
18. Date of the award 06.11.2019
19. Whether the award was passed with the Yes consent of the parties?
20. Whether the claimant (s) were directed to Yes open savings bank account (s) near their place of residence?
21. Date of order by which claimant (s) were directed to open savings bank account
(s) near his place of residence and produce PAN Card and Adhaar Card and the direction to the bank not issue any cheque book/debit card to the claimant(s) and make an endorsement to this effect on the passbook.
22. Date on which the claimant(s) produced 19.10.2019 the passbook of their savings bank account near the place of their residence along with the endorsement, PAN Card and Adhaar Card?
23. Permanent Residential Address of the R/o Ward-10, Akaur, Claimant(s). Benipatti Madhubani, Bihar
24. Details of savings bank account(s) of the The petitioner no.2 is having claimant(s) and the address of the bank A/c bearing No. with IFSC Code. 425510110013654 of Bank of India, I.N. Mukherjee Road, Raghunathpur, West Bengal IFSC Code: BKID0004255 MACT Case No. 47665/14 Page No. 3/23 The petitioner no.3 Kajaj is having A/c bearing no.
36253054484, SBI Bank, Dist. Madhubani, Bihar IFSC Code: SBIN0006163 The petitioner no.4 Anjali is having A/c bearing no.
38082445841, SBI Bank, Dist. Madhubani, Bihar IFSC Code: SBIN0006163
25. Whether the claimant(s) savings bank Yes account (s) in near his place of residence?
26. Whether the claimant (s) were examined Yes at the time of passing of the award to ascertain his/their financial condition?
27. Account number, MICR number, IFSC ADJ/MACT/Parking Account Code, name and branch of the bank of of SBI Tis Hazari Courts, the Claims Tribunal in which the award Delhi as informed by the amount is to be deposited/transfered. Chief Manager, SBI Tis Hazari Courts, Delhi MICR:- 110002126, IFSC Code:- SBIN0000726
1. This judgment -cum- award shall decide the petition under Section 166 and 140 of Motor Vehicle Act 1988 as amended up to date (hereinafter referred to as the 'Act') filed by petitioners for grant of compensation for the death of the deceased Raj Kishore in the road vehicular accident.
2. Brief facts of the case are that on 13.10.2009, the injured/deceased was going on foot to Bus Stand at Maya Puri Chowk Ring Road, Delhi. It has been further stated that the injured/deceased was coming from his Jhuggi and when he reached at NDPL office, Rama Road, Maya Puri Chowk, then, all a sudden, a Truck bearing Registration No. HR-55J-6253 which was being driven by the respondent no.1 at a very high speed and in a rash and negligent manner, hit the injured/deceased from back side. It has been further stated that hip of the injured was crushed by the front wheel of the truck. It has been further stated that as a result of the aforesaid accident, the injured/deceased sustained grievous injuries in the accident in question. It has been further stated that after the MACT Case No. 47665/14 Page No. 4/23 accident, the injured/deceased was removed to Deen Dayal Upadhyay Hospital, New Delhi.
3. As a result of the abovesaid accident, as per the case of the petitioners, FIR No. 288/2009 dated 13.10.2009: P.S. Kirti Nagar u/s 279/337A IPC was registered against the respondent No.1/Driver of the offending vehicle.
4. It has been further stated that at the time of accident, the injured/deceased was 32 years of age possessing good health and physique. It has been further stated that at the time of accident, the deceased was self employed and earning Rs.8,000/- per month.
5. It has been further stated that the deceased is survived by his wife and four minor children.
6. In total, the petitioners have claimed a sum of Rs. 5,00,000/- (Rupees Five Lacs Only) on account of compensation.
7. It has been further stated that the respondent no.1 being the driver- cum-owner of the offending vehicle and the respondent no.2 being the present insurer of the offending vehicle are jointly liable to pay the compensation to the petitioners.
8. Despite grant of opportunities, no written statement was filed on record by the respondent no.1.
9. Written statement has been filed on record by the insurance company stating therein that the respondent no.1 was not having any valid DL at the time of accident. It has been admitted that the alleged offending vehicle i.e. Truck bearing No. HR-55J-6253 was insured with it vide policy no. 321600/31/09/01/000200044 valid w.e.f. 10.08.2009 to 09.08.2010 in the name of the respondent no.1 Sh. Baiju. It has been prayed that the present claim petition be dismissed.
10. After hearing the arguments and going through the pleadings of the parties, the following issues were framed by the ld. Predecessor of this Tribunal on 27.11.2010:-
1. Whether petitioner (Sh. Raj Kishore since deceased) had received injuries during course of accident which took MACT Case No. 47665/14 Page No. 5/23 place on 13.10.09 by being hit by the offending vehicle No. HR-55J-6253 which was being driven at a fast speed and in a rash and negligent manner by its driver respondent No.1?
2. Whether LR's of deceased petitioner Shri Raj Kishore are entitled to the claim amount and if so in what share and by whom the same shall be payable?
3. Relief.
11. In order to establish their claim, the petitioners have examined Dr. V. K. Goyal, Senior Orthopaedic Surgeon and Head of Department (Ortho), DDU Hospital, New Delhi as PW-1 and this witness has stated that as per record i.e. discharge summary sheet of Raj Kishore 32 Male, bearing CR No. 45091 and MLC No. 20705 was admitted in Surgery Ward on 13.10.2009 in DDU Hospital. PW-1 further states that as per records, the patient had blunt trauma abdomen and fracture both pubic rami and fracture left lateral malleolus. PW-1 further states that as per records, exploratory laprotomy was done on 14.10.2009 by surgery. PW-1 further states that for bonny injury, patient was treated by plaster. PW-1 further states that as per records, the patient was discharged on 05.11.2009 by surgery department, Unit-1 and was advised to attend surgery as well as orthopedics OPD on Tuesday, Thursaday and Saturday. PW-1 further states that for Orthopedics treatment, patient Raj Kishore was under his unit care i.e. unit-2 Dr. V. K. Goyal. PW-1 further states that Ortho OPD record dated 07.11.2009 shows that on 12.11.2009, patient was referred from surgery department for dressing of bedshores besides orthopedics care. PW-1 has exhibited the discharged summary as Ex. PW1/A and OPD ticket of his unit as Ex. PW1/B.
12. The petitioners have also examined Sh. Om Prakash, PRO Ashray Medical Center, WHS 2/24, Timber Market, Kirti Nagar, Delhi as PW-2 and this witness has identified the bills Ex. PW2/A and PW2/B which was issued by their medical center in the name of Sh. Raj Kishore.
MACT Case No. 47665/14 Page No. 6/2313. The petitioners have examined the petitioner No.1 Smt. Veenita Devi (wife of the deceased) as PW-3 and in her evidence by way of affidavit, she has reiterated and reaffirmed the stand as taken by the petitioners in the present claim petition. She has filed on record his affidavit as Ex. PW3/A; medical bills as Ex. PW3/1; treatment record as Ex. PW3/2; copy of death certificate as Ex. PW3/3(OSR); copy of Election I-card as Ex. PW3/4(OSR); attested copy of accident information report duly attested by IO as Ex. PW3/5; I-Card of deceased Raj Kishore issued by Gram Panchayat Bennipatti Madhuwani as Ex. PW3/6.
14. In the cross-examination done by Ld. Counsel for the respondent no2, PW-3 states that she is not an eye witness to the accident. PW-3 admits it to be correct that the treatment record filed by her shows that her husband Raj Kishore remained under the treatment of DDU Hospital till 22.12.2009. PW-3 admits it to be correct that she has not filed any treatment record which shows that the treatment of her husband Raj Kishore continued upto the date of his death i.e. 13.09.2010. PW-3 further states that her husband had died due to the bed shore on account of the accident. PW-3 admits it to be correct that she has not filed any document to show the losses in income of her husband due to the accidental injuries. PW-3 admits it to be correct that she has not filed any document on record to prove that her husband remained bed ridden till the date of his death i.e. 13.09.2010.
15. The petitioners have also examined Dr. Rajiv, Senior Resident, DDU Hospital, New Delhi as PW-4 and this witness has exhibited the complete treatment record of patient Raj Kishore as Ex.PW4/A(colly). PW-4 further states that he was in the unit of Dr. A. K. Mongia under which the patient Raj Kishore was treated. PW-4 further states that he can identify the signatures of Dr. A. K. Mongia as he has seen him writing and signing during the course of their duties. PW4 further states that the admission sheet on page no.4 of Ex. PW4/A bears the signatures of Dr. A. K. Mongia at point A. PW-4 further states that under the unit of Dr. A. K. Mongia, patient Raj Kishore was treated for urethral injury for which he was treated. PW-4 further states that the discharge summary Ex. PW1/A was issued by their hospital which bears the signatures of Dr. Bal Mukund at point B. MACT Case No. 47665/14 Page No. 7/23 PW-4 further states that he can identify the signatures of Dr. Bal Mukund as he has seen him writing and signing during the course of duties. PW-4 further states that OPD Ticket on page no.5 of document Ex. PW3/2 issued by their hospital. PW-4 further states that as regards the contents of OPD ticket on page no.5 of Ex. PW3/2, he cannot say who has written the same but it is mentioned therein that the injured was suffering from bed sores, his dressing was done and his catheter was removed.
16. In the cross-examination done by Ld. Counsel for the respondent no.2, PW-4 admits it to be correct that the patient Raj Kishore was admitted on 13.10.2009 and was discharged on 05.11.2009. PW-4 further states that after that the patient/injured never remained admitted in their hospital but however, he attended the hospital as an OPD patient. PW-4 admits it to be correct that the patient was treated as an OPD patient till 12.12.2009 as per their record.
17. The petitioners have further examined Sh. Kedar Prasad from Vill & P.O. Akaur, PS Benipatti, Distt. Madhuwani, Bihar as PW-4 (wrongly mentioned as PW-4) and this witness states that he is a registered Medical Practitioner under Central Govt. Act, Bihar. PW-4 has exhibited his ID Card regarding RMP in the form of Ex. PW4/A(OSR). PW-4 further states that he is presently practicing at Benipatti. PW-4 further states that he has done the dressing on the wounds of the patient Raj Kishore for the period from May 2010 to 13.09.2010. PW-4 further states that he used to charge Rs.40-50/- per dressing and in total, he charged about Rs.5000/- to Rs.6000/- from patient Raj Kishore. PW-4 further states that due to injuries caused in the accident, the patient was bedridden due to bedsores and was unable to move. PW-4 further states that he used to go to his house for dressing.
18. In the cross-examination done by Ld. Counsel for the respondent no.2, PW-4 states that he does not have any prescription or the treatment record to show that patient Raj Kishore remained under his treatment for the aforesaid period. PW-4 further states that he has no documentary proof that he charged Rs.5000 to Rs.6000/- from patient Raj Kishore on account of his treatment.
19. The petitioners have further examined Sh. Kundan Rai as PW-5 and MACT Case No. 47665/14 Page No. 8/23 in his evidence by way of affidavit, he has reiterated and reaffirmed the stand as taken by the petitioners in the claim petition. He has filed on record his affidavit as Ex. PW5/A.
20. In the cross-examination done by the Ld. Counsel for the respondent no.2, PW-5 states that he was on his foot and was walking towards the bus stand Maya Puri on the date of the accident. PW-5 further states that there was heavy movement of the traffic on the road at the time of accident. PW-5 further states that he saw that one person was walking on the road adjacent to the pavement. PW-5 further states that he was not under the influence of alcohol. PW-5 further states that the truck was coming from Rama Road Side. PW-5 further states that the police had not recorded his statement but the police official recorded the statement of injured in his presence. PW-5 further states that he never went to the concerned police station for getting recorded his statement to the effect that he was the eye witness to the accident in question.
21. The insurance company has examined its Assistant Sh. N. K. Saxena as R2W1 and in his evidence by way of affidavit, he has reiterated and reaffirmed the stand as taken by the insurance company in the written statement. He has filed on record his affidavit as Ex. R2W1/A; attested copy of insurance policy as Ex.R2W1/1; copy of legal notice as Ex. R2W1/2; postal receipts as Ex.R2W1/3 to Ex.R2W1/5; AD card as Ex. R2W1/6. R2W1 has also relied upon the accident information report filed by the IO and duly attested by him which shows that the respondent no.1 was not having driving license at the time of alleged accident which has already been exhibited as Ex. PW3/4.
22. In the cross-examination done by ld. Counsel for the petitioner, R2W1 states that he has not visited the office of the Transport Authority personally to enquire about the driving license. R2W1 further states that he has no personal knowledge regarding genuineness of driving license of driver. R2W1 further states that he has deposed on the basis of the record available with the insurance company.
23. The insurance company has also examined its Administrative Officer Sh. Ashok Kumar Gond as R2W2 and this witness has filed on record his affidavit MACT Case No. 47665/14 Page No. 9/23 as Ex. R2W2/A; copy of his I Card as Ex.R2W2/1(OSR); copy of DL of respondent no.1 as Mark A; DL verification report of their Investigator as Ex. R2W2/2; the original DL verification report issued by RTOP MokokChung, Nagaland received under RTI Act, 2005 as Ex.R2W2/3; photocopy of RC attested by IO and filed alongwith AIR as Ex.R2W2/4 according to which the class of the vehicle No. HR- 55J-6253 is MVT. He has also relied upon the insurance policy which has already been exhibited as Ex. R2W1/1.
24. This witness has not been cross-examined.
25. I have thoroughly gone through the testimony of the witnesses and perused the record. I have also given my thoughtful consideration to the arguments addressed by learned counsel for the petitioners. The petitioner no.2 has also been examined under the MCTAP and I have considered the statement of the petitioner no.2 recorded under MCTAP as well.
ISSUE NO. 1:-
26. The present petition has been filed by the petitioners u/s 166 & 140 M. V. Act and the onus is upon the petitioners to prove the rash and negligent act of the respondent No.1.
27. The petitioners have examined the petitioner no.1 as PW-1 and she has well explained the mode and manner of accident. She has reaffirmed and reiterated the averments made in the petition. During her entire cross examination, nothing has come out so as to discredit her testimony.
28. The petitioners have also examined the eye witness to the abovesaid accident namely Sh. Kundan Rai as PW-5. PW-5 has been cross-examined by the respondents in detail but to my mind, even in the cross examination, so far as the material particulars of the accident in question are concerned, PW-5 has stuck to the point that the accident in question was caused on account of the rash and negligent driving of the offending vehicle by the respondent No.1.
29. Furthermore, in the present case, FIR No. 288/2009 dated 13.10.2009: P.S. Kirti Nagar u/s 279/337A IPC was registered against the respondent No.1/Driver of the offending vehicle.
MACT Case No. 47665/14 Page No. 10/2330. In Bimla Devi & Ors vs. Himachal Road Transport Corporation & ors (2009) 13 SC 530, in Kaushnumma Begum and others v/s New India Assurance Company Limited, 2001 ACJ 421 SC, in National Insurance Co. Ltd. vs. Pushpa Rana cited as 2009 ACJ 287, it has been held that the negligence has to be decided on the touchstone of preponderance of probabilities and a holistic view is to be taken. It has been further held that the proceedings under the Motor Vehicle Act are not akin to the proceedings in a Civil Suit and hence, strict rules of evidence are not applicable.
31. In the light of the abovesaid discussion, to my mind, the petitioners have been able to prove issue No.1 in their favour and accordingly, the issue No.1 is decided in favour of the petitioners.
ISSUE NO. 2:-
32. During the course of arguments, Ld. Counsel for the insurance company has vehemently argued that the accident took place on 13.10.2009 but the injured expired on 13.09.2010 and as such, there was no connection in between the death of the deceased and the injuries received by him in the accident in question. Ld. Counsel for the insurance company has argued that the Ld. Predecessor of this Court had passed the orders dated 19.10.2011 on the application of the petitioners under Order 6 Rule 17 of the CPC seeking the amendment in the original claim petition as the petitioners wanted to convert the claim petition into a death claim petition from that of injury claim petition. It has been further argued that the Ld. Predecessor of this Court declined the abovesaid plea of the petitioners holding therein that there was no record to show that the deceased expired on account of injury sustained by him in the accident which took place on 13.10.2009. It has been further argued that the aforesaid orders have neither been challenged nor been set aside by any superior court leading to the finality of the said orders dated 19.10.2011.
33. Whereas, on the other hand, ld. Counsel for the petitioners has relied upon the testimonies of Dr. V. K. Goyal, Dr. Rajiv and Dr. Kedar Prasad and has MACT Case No. 47665/14 Page No. 11/23 argued that the injury expired on account of the bed sores which he developed because of the injuries received by him in the accident in question.
34. It is true that the abovesaid three doctors examined by the petitioners have categorically stated that the deceased was suffering from bed sores but it has to be seen that the Ld. Predecessor of this Court vide orders dated 19.10.2011 has categorically declined the abovesaid submission of the petitioners. In para no. 4 of the orders dated 19.10.2011, the Ld. Predecessor of this Court has held as under:-
"4. It appears from records that after the accident which took place on 13.10.2009, the injured had received treatment in Delhi. As was claimed on behalf of L.R.s of original petitioner, the petitioner had shifted to his nature village in the month of May 2010. Apparently, there is no medical record regarding treatment of deceased Raj Kishore thereafter. In absence of any record to that effect, it cannot be said that deceased had expired on account of injury sustained by him during course of accident on 13.10.2009. As legal heirs of deceased have already been brought on record in considered opinion of this court, no ground is made out to permit them to amend the original claim petition into one of death claim petition. The presence application under disposal is accordingly dismissed."
35. Needless to mention that the abovesaid findings recorded by the Ld. Predecessor of this Court in the orders dated 19.10.2011 have neither been challenged nor been set aside leading to the finality of the said orders. As such, to my mind, at this juncture, the petitioners cannot be allowed to argue that the injured expired on account of the injuries received by him in the accident in question.
REIMBURSEMENT OF MEDICAL BILLS:-
36. The petitioner No.1 has placed on record original medical bills of the injured/deceased in the form of Ex. PW3/1(colly) alongwith bill summary to the tune of Rs.4346.15.
MACT Case No. 47665/14 Page No. 12/2337. These bills have not been controverted by the respondents. As such, the petitioners are entitled for an amount of Rs.4346/- (after rounding of Rs.4346.15) under this head.
38. The petitioners, in the claim petition, has claimed that the deceased was 32 years of age at the time of accident. But no documentary evidence has been placed on record by the petitioners to show that the deceased was 32 years of age at the time of accident. In the discharge summary issued by DDU hospital and other medical treatment records of the injured/deceased, the age of the deceased at the time of the accident has been mentioned as 32 years. Accordingly, the age of the deceased is taken as 32 years as on the date of accident.
39. In the claim petition, the petitioners have claimed that the deceased was self employed and earning Rs.8000/- per month but nothing has been placed on record by the petitioners to show that the deceased was earning Rs.8000/- per month.
40. As such, the income of the deceased can very well be assessed on the basis of the chart available in the Minimum Wages Act of an Unskilled person. The date of accident is 13.10.2009 on which the minimum wages for an Unskilled person for the relevant period were Rs. 3953/- per month.
41. The petitioner no.2 has been examined on 19.10.2019 under MCTAP and he stated that the petitioner no.1 is the wife of the deceased has already expired on 13.10.2013. He has further stated that the petitioner no.5 Master Ashish has already expired on 28.10.2012. He further states that the petitioners no.3 & 4 are the minor daughters of the deceased.
42. As such, all the petitioners No.2 to 4 are to be taken as dependents upon the deceased at the time of the accident.
43. The Hon'ble Apex Court of the land in the latest judgment which has arisen out of SLP (Civil) No. 25590 of 2014 titled as National Insurance Company Limited vs. Pranay Sethi & ors decided on 31.10.2017 has held as under:-
"61. In view of the aforesaid analysis, we proceed to record our conclusions:-MACT Case No. 47665/14 Page No. 13/23
(i) The two-Judge Bench in Santosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench.
(ii) As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent.
(iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.
(iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.
(v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore.
(vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment.
(vii) The age of the deceased should be the basis for applying the multiplier.
(viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years."
44. The Hon'ble High Court of Delhi in MAC Appeal No. 798/2011 titled as Bajaj Allianz General Insurance company Ltd. vs. Pooja & ors MACT Case No. 47665/14 Page No. 14/23 decided on 02.11.2017 has held that even in the cases where the income of the deceased is calculated on the basis of the minimum wages, the benefit of future prospects is to be given in accordance with the abovesaid guidelines issued by the Hon'ble Supreme Court of India in the abovestated authority as per the rule applicable to self employed or privately employed persons.
45. Going by the ratio of the above stated two authorities, an addition of 40% has to be given to the income of the injured(deceased). Accordingly, the income of the injured has to be taken as Rs. 5534/- per month (after rounding off from Rs. 5534.2/- (Rs. 3953/- + Rs. 1581.2/- ie 40% of Rs. 3953/-).
46. During the course of final arguments, Ld. Counsel for the insurance company has vehemently argued that loss of dependency cannot be granted to the petitioners as the deceased did not die on account of the injuries received by him in the accident. It has been further argued that compensation also cannot be granted to the legal heirs of the deceased on account of the disability of the deceased as the deceased has already expired during the pendency of the DAR/claim petition.
47. It has already been held that the Ld. Predecessor of this Court has given the findings in the orders dated 19.10.2011 that the deceased did not expire on account of the injuries received by him in the accident in question and as such, to my mind, the petitioners are not entitled for loss of dependency.
48. As such, to my mind, the present petition is maintainable and loss of estate has to be granted to the petitioners.
49. It has to be seen that in the authority titled as Sampati Lal and others Vs. Hari Singh & others cited as II(1985), ACC 467 and AIR 1985 Rajasthan 174 of the Hon'ble Rajasthan High Court, the Hon'ble High Court of Rajasthan was dealing with an issue pertaining to the death of one Sh. Khem Raj. In the said case, the accident took place on 20.03.1972 and the injured suffered from crush injury of both his feet. The injured was 63 years of age and he incurred disability also. However, on 16.04.1974, the injured expired. An application was brought by the legal heirs for substitution but subsequently, MACT Case No. 47665/14 Page No. 15/23 the application for claim was dismissed on the ground that the cause of action disappear with the death of the injured applying the maxine of Actio Personalis Moritur Cum Personal. Appeal was filed. It was held "...... The application for compensation does not, therefore, abate if the applicant dies during the pendency of the application.
".....In Thailammai V. A.V. Mallayya Pillai 1981 Acc CJ 185(Mad), it was held that the cause of action in respect of damages to the estate of the deceased survives and passes over to his legal representatives. In Joti Ram V. Chamanlal 1984 Acc CJ 6545:(AIR 1985 Punj & Har 2), a Division Bench of the Punjab and Haryana High Court took the view that the right to sue survives to the legal representatives of the deceased-injured in respect of claim on account of the loss to the estate. On a careful consideration, I find myself in complete agreement with the views expressed in the above two cases. I am, therefore, of the opinion that if the claim under the Act also relates to the estate of the deceased, the action survives on the death of the claimant and passes over to his legal representatives.
In the instant case, the break-up of the compensation, as disclosed in the application, is (a) Rs. 6800/- as the amount incurred by the deceased for the treatment of his injuries caused in the accident, (b) loss of income at the rate of Rs. 300/- per month for twelve years and (c) Rs. 20,000/- on account of mental and physical pain, agony and suffering. The amount would not have been spent by him, it was to come in the hands of the claimants. Likewise, the loss of income at the rate of Rs. 300/- per month is also a loss to the estate of the deceased so far he remained alive. Had he not sustained the injuries, the loss of income would not have occurred. If I had not occurred, the claimants would have received it on the death of the injured. The loss of income for the period from the accident to the death of the injured amounts to a loss to the estate. The loss of income occuring after the death of the deceased is not a loss to the estate. The compensation for the loss of income for the period subsequent to the death of the victim cannot, therefore, be claimed. So also the amount of Rs.MACT Case No. 47665/14 Page No. 16/23
20,000/- claimed on account of mental and physical pain, agony and suffering is not a loss to the estate and the action dies on his death. It does not survive and pass over to his legal representatives. The tribunal applied the doctorine of Actio Personalis Moritur Cum Persona in respect of the entire claim without taking into consideration the loss to the estate of the deceased Khemraj. The approach the Tribunal, so far it relates to the dismissal of the claim in respect of the loss to the estate of the deceased, cannot, therefore, be maintained.
In the result, the appeal is allowed and the award dated March 5, 1975 of the Tribunal dismissing the application for compensation, is set aside. The case is sent back to the Tribunal with directions to continue further proceedings in the case and decide the claim in respect of the loss of the estate of the deceased Khemraj relating to medical expenses and the loss of income for the period from the accident to the day of the death of Khemraj."
50. Going by the ratio of the above stated authority, the petitioners are entitled for loss of income of the deceased from the date of the accident till the date of his death. The accident took place on 13.10.2009 and the injured expired on 13.09.2010. Accordingly, the petitioners are entitled for loss of income of the deceased for a period of 12 months. The monthly income of the injured has already been taken as Rs. 5534/- per month. Accordingly, the petitioners are entitled for a sum of Rs. 66,408/-(Rs. 5534/- x 12) under this head.
51. Going by the ratio of Pranay Sethi judgment, the petitioners are entitled for a sum of Rs. 15,000/- on account of funeral expenses and Rs. 15,000/- as loss of estate.
52. Accordingly, in total, the petitioners are entitled for the compensation of Rs. 1,00,754/-(Rs. 66,408/- + Rs. 30,000/- + Rs. 4346/-).
53. The petitioner No.2 is the major son of the deceased and the petitioners No. 3 to 4 are the minor daughters of the deceased.
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54. I award Rs.1,00,754/- (Rupees One Lac Seven Hundred and Fifty Four Only) as compensation with interest at the rate of 9% per annum including interim award, if any from the date of filing the DAR/claim petition i.e. 22.10.2009 till the date of the payment of the award amount, in favour of the petitioners and against the respondents on account of their liability being joint and several. The petitioner No.2 shall have 40% share in the award amount and the petitioners No. 3 to 4 shall have 30% share each in the award amount.
MODE OF DISBURSEMENT OF THE AWARD AMOUNT TO THE CLAIMANTS AS PER THE PROVISIONS OF THE 'MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE' (MCTAP).
55. This court is in receipt of the orders dated 07.12.2018 passed by the Hon'ble High Court of Delhi in FAO no. 842/2003 titled as Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors whereby the Hon'ble High Court of Delhi has formulated MACAD(Motor Accident Claims Annuity Deposit Scheme) which has been made effective from 01.01.2019. The said orders dated 07.12.2018 also mentions that 21 banks including State Bank of India is one of such banks which are to adhere to MACAD. The State Bank of India, Tis Hazari Courts, Delhi is directed to disburse the amount in accordance with MACAD formulated by the Hon'ble High Court of Delhi.
56. Keeping in view the entirety of the facts and circumstances involved in the present case and the abovesaid guidelines laid down by the Hon'ble High Court of Delhi, the respondent no.2 is directed to deposit the amount of Rs.1,00,754/- (Rupees One Lac Seven Hundred and Fifty Four Only) as stated herein above with SBI, Tis Hazari Courts, Delhi, out of which the amount of Rs. 10,754/- shall be released to the petitioner no.2 i.e. major son of the deceased keeping in view the submissions of the Ld. Counsel for the petitioners and in the entirety of the facts.
57. The rest of the amount of Rs. 90,000/- shall be kept in 9 equal monthly FDR's for the period of one month to 9 months for an amount of Rs.
MACT Case No. 47665/14 Page No. 18/2310,000/- each with cumulative interest in favour of the petitioners in their abovementioned shares. However, money can be withdrawn through withdrawl slip only.
58. As stated herein above, since the petitioners No.3 to 4 are minor, the amount of their FDRs shall not be released until they reach the age of majority.
59. The following conditions are to be adhered to by SBI, Tis Hazari Courts, Delhi with respect to the fixed deposits:-
(a) The Bank shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the claimant(s) i.e. the savings bank account(s) of the claimant(s) shall be an individual savings bank account(s) and not a joint account(s).
(b) The original fixed deposit shall be retained by the bank in safe custody. However, the statement containing FDR number, FDR amount, date of maturity and maturity amount shall be furnished by bank to the claimant(s).
(c) The monthly interest be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant(s) near the place of their residence.
(d) The maturity amounts of the FDR(s) be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant (s) near the place of their residence.
(e) No loan, advance, withdrawal or pre-mature discharge be allowed on the fixed deposits without permission of the Court.
(f) The concerned bank shall not be issue any cheque book and/or debit card to claimant(s). However, in case the debit card and/or cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount.
The bank shall debit card (s) freeze the account of the claimant(s) so that no debit card be issued in respect of the account of the claimant(s) from any other branch of the bank.
(g) The bank shall make an endorsement on the passbook of the claimant(s) to the effect that no cheque book and/or debit card have been issued and shall not be issued without the permission of the Court and claimant(s) shall produce the passbook with the necessary endorsement before the Court on the next date fixed for compliance.
(h) It is clarified that the endorsement made by the bank along with the duly signed and stamped by the bank official on the passbook(s) of the claimant(s) is sufficient compliance of clause (g) above.
60. In accordance with the orders dated 08.02.2019 passed by the MACT Case No. 47665/14 Page No. 19/23 Hon'ble High Court of Delhi in FAO no. 842/2003 in Rajesh Tyagi and others Vs. Jaibir Singh and others, Mr. Rajan Singh, Assistant General Manager has been appointed as Nodal Officer of SBI having Phone no. 022- 22741336/9414048606 and e mail ID [email protected]. In case of any assistance or non compliance, the aforesaid Nodal Officer may be contacted to. A copy of this order be sent by e-mail to the aforesaid Nodal Officer of the aforesaid bank by the Ahlmad of the Court immediately in accordance with the directions of the Hon'ble High Court as contained in the orders dated 07.12.2018. The Nodal Officer of the bank shall ensure the disbursement of the award amount within three weeks of the receipt of the e-mail as mentioned in the orders dated 07.12.2018 passed by the Hon'ble High Court of Delhi.
APPORTIONMENT OF LIABILITY
61. Ld. Counsel for the insurance company has vehemently argued that the respondent no.1 was not having any valid and effective driving license to drive the offending vehicle. In order to its stand, the insurance company has examined its Administrative Officer Sh. Ashok Kumar Gond as R2W2 and this witness has filed on record DL verification report of their Investigator as Ex. R2W2/2; original DL verification Report issued by RTO MokokChung, Nangaland received under RTI Act, 2005 as Ex. R2W2/3; photocopy of RC attested by IO and filed alongwith AIR as Ex. R2W2/4.
62. Perusal of Ex. R2W2/2 and Ex. R2W2/3 reveals that the respondent no.1 was having the driving license for the category of SC, MC, LMV only issued on 29.09.2009 and valid upto 27.09.2012 and the DL of the respondent no.1 was endorsed for MMV, HMV category w.e.f. 22.10.2013.
63. As such, to my mind, the insurance company has been able to prove that the respondent no.1 was not having any valid driving license to drive the offending vehicle on the date and time of the accident. As such, the insurance company is held entitled for the recovery rights against the respondent no.1 but only after depositing of the award amount in favour of petitioners.
MACT Case No. 47665/14 Page No. 20/2364. Since the offending vehicle was duly insured with the respondent no.2, the respondent no.2 is hereby directed to deposit the award amount in favour of the petitioners with SBI, Tis Hazari Courts, Delhi within a period of 30 days from the date of passing of this award together with the interest as stated herein above under the intimation to this court and under intimation to the petitioners. In case of any delay, it shall be liable to pay interest at the rate of 12% per annum for the period of delay.
A separate file be prepared for compliance report by the Nazir and put up the same on 19.12.2019.
A copy of this award be given to the parties free of cost. A copy of this award be sent to the concerned Ld. Metropolitan Magistrate as well as DSLSA as per the provisions of the MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE (MCTAP).
Digitally signed by RAJ File be consigned to Record Room.
RAJ KUMAR
Date:
KUMAR 2019.11.08
12:35:49
Announced in the open court +0530
On 6th of November, 2019 (RAJ KUMAR)
P.O.MACT (WEST-01)
Delhi (06.11.2019)
MACT Case No. 47665/14 Page No. 21/23
FORM -IVA
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN DEATH CASES
1. Date of accident :- 13.10.2009
2. Name of the deceased :- Sh. Raj Kishor
3. Age of the deceased :- 32 years
4. Occupation of the deceased :- Self Employed
5. Income of the deceased :- Rs. 3953/-
6. Name, age and relationship of legal representative of deceased:-
S. Name Age Relation
No.
(I) Sh. Sharwan Kumar DOB: Son of the deceased
01.01.1996
(ii) Kajal DOB: Daughter of the deceased
01.01.2003
(iii) Anjali 01.01.2006 Daughter of the deceased
Computation of Compensation
Sr. No. Heads Awarded by the Claim Tribunal
7. Income of the deceased(A) Rs.3953/-
8. Add-Future Prospects (B) 40%
9. Less-Personal expenses NIL
of the deceased(C)
10. Monthly loss of NIL
dependency[(A+B)-C=D]
11. Annual loss of dependency NIL
(Dx12)
12. Multiplier(E) NIL
13. Total loss of dependency Rs.66,408/-
(Dx12xE= F)
14. Medical Expenses(G) Rs.4346/-
15. Compensation for loss of NIL
consortium(H)
MACT Case No. 47665/14 Page No. 22/23
16. Compensation for loss of Rs.15,000/-
estate(I)
17. Compensation towards Rs.15,000/-
funeral expenses(J)
18. TOTAL COMPENSATION Rs.1,00,754/-
(F+G+H+I+J+=K)
19. RATE OF INTEREST 9% per annum
AWARDED
20. Interest amount up to the Rs.58,537.57 (6 months, 5 months and date of award (L) 14 days after deducting interest w.e.f.
29.01.2015 to 29.08.2018)
21. Total amount including Rs. 1,59,291.57 interest (K + L)
22. Award amount released Rs.10,754/-
23. Award amount kept in Rs.90,000/-
FDRs
24. Mode of disbursement of Mentioned in the award the award amount to the claimant (s).
25. Next date for compliance 19.12.2019 of the award (RAJ KUMAR) P.O.MACT (WEST-01) Delhi (06.11.2019) MACT Case No. 47665/14 Page No. 23/23 MACT Case No.47665/14 06.11.2019 Present: None The award has been passed separately.
File be consigned to Record Room.
A separate file be prepared for compliance report by the Nazir and put up the same on 19.12.2019.
A copy of this award be sent to the concerned Ld. Metropolitan Magistrate as well as DSLSA as per the provisions of the MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE (MCTAP). A copy of this award be sent by the Ahlmad on the e-mail address of the Nodal Officer of the bank immediately as mentioned in the award.
( RAJ KUMAR ) P.O. MACT (WEST-01) Delhi (06.11.2019) MACT Case No. 47665/14 Page No. 24/23