Delhi District Court
Birjesh And Ors vs Ashfaq And Ors on 21 November, 2024
IN THE COURT OF MS. VRINDA KUMARI
PRESIDING OFFICER : MOTOR ACCIDENT CLAIMS
TRIBUNAL, PATIALA HOUSE COURTS, NEW DELHI
IN THE MATTER OF:
BIRJESH & ORS. VS. ASHFAQ & ORS.
MACP NO. 165/19
1. Smt. Birjesh (Wife of deceased)
W/o Late Sh. Jitendra Singh
2. Ms. Vishakha (Daughter of deceased)
D/o Late Sh. Jitendra Singh
3. Kumari Pooja (Daughter of deceased)
D/o Late Sh. Jitendra Singh
4. Lakshya Kumar Saroha (Son of deceased)
S/o Late Sh. Jitendra Singh
All R/o H.No. RZF778/13, S-F, Gali No.17,
Block F, Brahaman Dharmshala Marg, Raj Nagar
Part-II, Palam Colony, South West, Delhi-110077.
......Petitioners
Versus
1. Sh. Ashfaq (Driver)
S/o Sh. Sher Mohammad
R/o Village Jabalpur Nuh, PS & Tehsil Nagina,
District Mewat, Haryana-122108.
2. Sh. Rajesh Kumar Dixit (Owner)
S/o Sh. Devi Prakash Dixit,
R/o 680, F Block, Mangolpuri, Delhi-110083.
Also at H.No. 87-88, Pocket-11B, Sector-23,
Rohini, Delhi.
3. IFFCO Tokio General Insurance Co. Ltd. (Insurer)
IFFCO Sadan, C-1, District Centre,
Saket, New Delhi-110017.
.........Respondents
MACP No. 165/19
Birjesh & Ors. Vs. Ashfaq & Ors. 21.11.2024 Page 1 of 31
Date of filing of claim petition : 28.09.2019
Date of framing of issues : 18.01.2022
Date of concluding arguments : 23.10.2024
Date of decision : 21.11.2024
AWARD/JUDGMENT
1. The claim for compensation raised in the present
claim petition is in respect of fatal injuries alleged to have been
sustained by the deceased Sh. Jitendra Singh in a motor accident
that took place on 13.11.2018, at about 07:20 am, U/GGR over
bridge near Majar Jherara Village on RTR Marg, Delhi,
regarding which one FIR No.295/2018, under
Sections186/353/304 IPC & Sections 66(1)/192 MV Act was
registered at PS Delhi Cantt. The offending vehicle involved in
this case is a truck bearing registration No. DL-1LX-3092, which
at the relevant time of accident was being driven by respondent
no.1 (R1) Sh. Ashfaq, owned by respondent no. 2 (R2) Sh.
Rajesh Kumar Dixit and insured with respondent no. 3 (R3)
IFFCO General Insurance Co. Ltd.
2. It is the case of the petitioners that the deceased was
working with Delhi Traffic Police as a Zonal Officer and posted
at Delhi Cantt. Circle. On 13.11.2018, the deceased was on his
duty on NH-8 Dhaula Kuan to Mahipalpur Road for managing
and controlling traffic due to VIP movements and he along with
three other police officials were checking the vehicle going on
road under the foot over bridge near Mazar Jharera Village on
NH-8 Dhaula Kuan to Mahipalpur Road. At about 7:20 am, the
deceased saw a truck bearing registration No. DL-1LX-3092
coming in first lane from Dhaula Kuan side in no entry, being
MACP No. 165/19
Birjesh & Ors. Vs. Ashfaq & Ors. 21.11.2024 Page 2 of 31
driven by its driver at a very high speed and negligent manner
due to which the deceased flagged down the driver of speeding
truck to slow down and indicated the driver to stop the vehicle at
the side of road and noted down the registration number of said
truck. All of a sudden, the driver of said truck accelerated the
truck and hit against the deceased with great force due to which
the deceased grabbed the wipers and clung onto the vehicle to
save his life and requested the driver of said truck to stop but the
driver of said truck did not pay any attention to his request. The
colleagues of deceased along with nearby petrol team started
chasing the said truck but the driver of truck drove in a zig zag
manner and tried to ram the petrol bikes and around 600 meter
ahead from the spot, the driver of truck suddenly applied brakes
near T point Sanjay Flyover due to which the deceased fell down
on the road and sustained fatal injuries. It is further stated that the
deceased was removed to Indian Spinal Injuries Centre, Vasant
Kunj, New Delhi for treatment where his MLC was prepared and
he was brought declared dead by the doctors.
3. Respondent no. 1 did not file reply to the claim
petition despite opportunity.
4. Respondent no. 2 has filed his reply to the claim
petition wherein it is submitted that the respondent no. 1 had
stolen the vehicle bearing registration No. DL-1LX-3092 which
was stationed infront of goods Transport Company viz. Network
Tempo Transport, shop No. 20 CSC Market, Transport Centre,
Punjabi Bagh, New Delhi between 23.30 pm and 00:30 on
13.11.2018. He tried to trace out the vehicle, but he could not
find the same. Later on, he came to know that the said vehicle
MACP No. 165/19
Birjesh & Ors. Vs. Ashfaq & Ors. 21.11.2024 Page 3 of 31
was stolen by alleged driver Ashfaq. It is further submitted that
the respondent no. 1 is a thief who had stolen the vehicle and
caused the accident intentionally.
5. It is pertinent to mention that respondent no. 1 and 2
were proceeded against ex-parte vide Order dated 21.07.2022.
6. Respondent no. 3/Insurance Company filed its
written statement to the claim petition wherein it is submitted
that the present case was not maintainable and was liable to be
dismissed as the death of deceased was not caused by an accident
but by a deliberated act of respondent no. 1. It is further
submitted that the FIR was registered under Sections
186/353/304 IPC and Sections 66(1)/192 MV Act against the
driver of alleged offending vehicle. It is further submitted that it
was a case of murder and hence, the petition deserves dismissal
on this ground alone. It is further submitted that the driver of
alleged offending vehicle did not have a valid and effective
driving license and hence, the Insurance Company was not liable
to pay any compensation to the petitioners. It is further submitted
that the alleged offending vehicle was duly insured with them in
the name of respondent no. 2 w.e.f. 12.08.2018 to 11.08.2019.
7. On 18.01.2022, the following issues were framed by
this Tribunal as:-
1. Whether the deceased sustained fatal injuries
in the accident which occurred on 13.11.2018
at about 07:20 AM, U/GCR over bridge near
Majar Jherara Village on RTR Marg, Delhi
caused by rash and negligent driving of vehicle
No. DL-1LX-3092 being driven by respondent
no. 1, owned by respondent no. 2 and insured
with respondent no. 3 ? OPP.
MACP No. 165/19
Birjesh & Ors. Vs. Ashfaq & Ors. 21.11.2024 Page 4 of 31
2. Whether the petitioners are entitled for
compensation? If so, to what amount and from
whom? OPP.
3. Relief.
8. In support of their claim, the petitioner no. 1 Smt.
Birjesh, wife of deceased examined herself as PW1. Her affidavit
in evidence is Ex. PW1/A. She relied upon certain documents.
Certified copy of criminal case record is Ex. PW1/1 (colly).
Copy of PAN card of deceased is Ex. PW1/2 (OSR). Copy of
employment ID card of deceased is Ex. PW1/3 (OSR). Copy of
salary slip of deceased for the month of October, 2018 is Mark
A. Copy of educational qualification documents of petitioner no.
2 to 4 as Ex. PW1/4 (colly) (OSR). Copy of Aadhar cards and
PAN cards of petitioner no. 1 to 4 as Ex. PW1/5 (colly) (OSR).
9. The petitioners have also examined Sh. Neeraj
Kumar, Head Constable from DCP Traffic Head Quarters,
Account Branch, Todapur, New Delhi as PW2 who has placed on
record attested copy of salary slip of deceased for the month of
October, 2018 as Ex. PW2/A.
10. Sh. Vikrant Tyagi, Head Constable from DCP
Traffic Headquarters, HACR Branch, Todapur, New Delhi is
PW3 who has brought the attested copy of service record of
deceased as Ex. PW3/A.
11. Sh. Pawan Kumar, Head Constable, Delhi Police, PS
East District is PW4. He is an eye witness of the accident.
12. Respondent no. 3/Insurance Company examined one
Ms. Snigdha Chauhan, Executive Legal from their Company as
R3W1. Her affidavit in evidence is Ex.R3W1/A. She relied upon
MACP No. 165/19
Birjesh & Ors. Vs. Ashfaq & Ors. 21.11.2024 Page 5 of 31
certain documents. She proved the office copy of notice under
Order 12 Rule 8 CPC as Ex. R3W1/1, original postal receipts as
Ex. R3W1/2, Ex. R3W1/3 and Ex. R3W1/4 and copy of
insurance policy as Ex. R3W1/5.
13. The Tribunal heard the final arguments advanced by
Sh. Munish Kumar Sharma, Ld. Counsel for petitioners and Sh.
Mehtab Singh, Ld. Counsel for R-3/Insurance Company and has
carefully perused the entire case record along with written
submissions and case laws filed on behalf of petitioners and
Insurance Company.
14. The findings on the aforementioned issues are
rendered hereinafter in the succeeding paragraphs.
15. ISSUE NO. 1
1. Whether the deceased sustained fatal injuries
in the accident which occurred on 13.11.2018
at about 07:20 AM, U/GCR over bridge near
Majar Jherara Village on RTR Marg, Delhi
caused by rash and negligent driving of vehicle
No. DL-1LX-3092 being driven by respondent
no. 1, owned by respondent no. 2 and insured
with respondent no. 3 ? OPP.
16. Onus to prove this issue was upon the petitioners.
The first question that needs to be decided is whether the
accident was caused by the vehicle bearing registration No.
DL-1LX-3092.
17. In order to prove the same, the petitioners have
examined Sh. Pawan Kumar, an eye witness of the accident, as
PW4 who has narrated the incident as follows :-
"I am a summoned witness. I was posted
in Delhi Cantt. Traffic Circle. My duty
hours are starting from 07:00 AM to 3:00
PM. On the date of accident i.e.
MACP No. 165/19
Birjesh & Ors. Vs. Ashfaq & Ors. 21.11.2024 Page 6 of 31
13.11.2018, my duty were at DCC at
point no. 4, Near Mazar, Jharera Village
on NH-8. The incident took place at
about 07:20 am. At that point of time,
there was a VIP movement and we were
doing the prosecution of traffic violation
as well as controlling the traffic. At the
place of accident, there was no entry
between 07:00 am to 11:00 am for the
Commercial Vehicle i.e. LGV, MGV &
HTV. I saw a tempo bearing No.
DL1LX3092, LGV came in the first line
during the no entry hours at about 07.20
am and the speed of the said LGV was
about 60-70 Km/ph. We got slow down
the traffic moving ahead of said vehicle
and got the said vehicle bearing no.
DL1LX3092 flagged down and indicated
him to stop the said vehicle at the side
line and rest of the vehicle was allowed
to go. The driver of the said vehicle was
still in a motion and did not stop the
vehicle and drove a vehicle at a high
speed. At that point of time, ASI Jitender
Singh was in the middle of the road and
he was instructing the driver to slow
down the vehicle in a side but the driver
didn't stop his vehicle and he accelerated
the speed of the said vehicle. The ASI
Jitender Singh having no option to save
his life but hanged over the wiper of the
said vehicle because of the traffic was
running both side.The ASI Jitender Singh
was screaming and asking the driver to
stop the vehicle but he didn't stop the
vehicle and the driver drove the vehicle
continuously. I chased the said vehicle
with the help of another vehicle which
was moving at that point of time on the
road. When I reached at Sanjay T point, I
found that ASI Jitender Singh was lying
on the road. Then I informed the
Constable Vijay Pal by my mobile phone
that ASI Jitender Singh was lying at
Sanjay T point. I also requested him to
inform the control room about the same
and I continue to chase the offender
vehicle which was moving towards
Dhaula Kuan to Gurgaon. The said
MACP No. 165/19
Birjesh & Ors. Vs. Ashfaq & Ors. 21.11.2024 Page 7 of 31
offender vehicle took a U turn from
Mahipalpur Flyover towards Dhaula
Kuan. After going 200-300 mtrs ahead
towards Dhaula Kuan, the driver stopped
the said vehicle opposite SSB office,
airport side. The said driver ran away
towards the construction site of the
airport after leaving the said vehicle on
the road. I chased him the said driver but
he continued to run and came back to
NH8, towards Gurgaon to Dhaula Kuan. I
saw him standing on the road waiving
towards the general public for taking lift.
The public caught hold off the said driver
on my shouting. I reached there and
caught hold off the driver and took him to
the offender vehicle."
18. During cross examination, PW4 deposed as
follows :-
"The vehicle moving ahead of the
offender vehicle were slow in motion
while the offender vehicle was also slow
in motion. We had gone in the middle of
the road to get the said vehicle stopped. It
is correct that the driver did not stop the
said vehicle after seeing us. He suddenly,
increased the speed of his vehicle after
seeing us. ASI Jitender Singh was 30-40
feet behind me. I had given indication to
the driver to stop his vehicle but he did
not stop his vehicle and continuously
drove the said vehicle at very high speed.
The ASI Jitender Singh came in the
middle of the road to get the said vehicle
stopped. He had also shouted for
stopping the vehicle. I can't say whether
driver said something or not but he didn't
stop the vehicle. It is wrong to suggest
that the driver did not hit his vehicle
rather he increased the speed of the
vehicle.
Voluntarily The ASI Jitender Singh in
order to save his life hanged on the said
tempo by holding the handle which was
below the wiper. It is correct that it was
not an accident rather the driver with
MACP No. 165/19
Birjesh & Ors. Vs. Ashfaq & Ors. 21.11.2024 Page 8 of 31
intention to kill the ASI Jitender Singh by
increasing the speed of said vehicle. I
can't say what was in his mind at that
point of time.
I cann't say whether any case for
accidental death has been lodged against
the driver or not.
I cann't tell whether FIR of this case has
been lodged under which provision.
I cann't say whether police had registered
a case under Section 304 of IPC against
the driver. I also do not know whether the
said driver is under judicial custody
under Section 304 IPC in this case.
It is correct that the driver had
intentionally increased the speed of his
vehicle. It is also correct that ASI
Jitender Singh was in front of the vehicle
when the driver increased the speed of
the vehicle. It is also correct that when
driver did not stop his vehicle, ASI
Jitender Singh hanged over the tempo by
holding the handle below the wiper. It is
also correct that the driver increased the
speed of the vehicle even after hanging of
the ASI Jitender Singh. I cann't say the
driver increased the vehicle speed with
intention to kill the ASI Jitender Singh. It
is wrong to suggest that I am deposing
falsely in order to help the petitioner."
19. The prime objection of Insurance Company to the
present claim petition is that it was a case of murder and
therefore, is not maintainable. The second objection is regarding
liability of Insurance Company to pay compensation as the
vehicle had been stolen by R-1 from registered owner/R-2. The
second objection shall be considered under the head 'Liability'
later in the Judgment.
20. Coming back to the testimony of PW4, it is apparent
that when the police officials on duty signaled the offending
vehicle, i.e. tempo bearing No. DL-1LX-3092 to stop on account
MACP No. 165/19
Birjesh & Ors. Vs. Ashfaq & Ors. 21.11.2024 Page 9 of 31
of there being no entry of commercial vehicles between 7 am to
11 am, he did not stop rather he fled at a high speed. He did not
slow down or stop even when the deceased clung on to the wiper
of the offending vehicle to save himself.
21. The entire gamut of event shows that the intention of
R-1/driver was to escape the Authority of State for which
purpose he drove his vehicle rashly causing death of deceased
Sh. Jitendra Singh. There is nothing on record to show that he
bore any ill will against the deceased. It was clearly a case of
accidental murder.
22. Ld. Counsel for petitioners has relied upon the
Judgment of Hon'ble Supreme Court of India in case titled as
Rita Devi & Ors. Vs. New India Assurance Co. Ltd., 2000 ACJ
801, decided on 27.04.2000 wherein it was held as under :-
"10. The question, therefore, is can a
murder be an accident in any given
case ? There is no doubt that murder, as
it is understood, in the common parlance
is a felonious act where death is caused
with intent and the perpetrators of that
act normally have a motive against the
victim for such killing. But there are also
instances where murder can be by
accident on a given set of facts. The
difference between a murder which is
not an accident and a murder which is an
accident, depends on the proximity of
the cause of such murder. In our opinion,
if the dominent intention of the Act of
felony is to kill any particular person
then such killing is not an accidental
murder but is a murder simplicitor, while
if the cause of murder or act of murder
was originally not intended and the same
was caused in furtherance of any other
felonious act then such murder is an
accidental murder.
.
.
MACP No. 165/19 Birjesh & Ors. Vs. Ashfaq & Ors. 21.11.2024 Page 10 of 31.
16. In the case of Shivaji Dayanu Patil & Anr. vs. Vatschala Uttam More (1991 (3) SCC 530) this Court while pronouncing on the interpretation of Section 92 A of the Motor Vehicles Act, 1939 held as follows : Section 92-A was in the nature of a beneficial legislation enacted with a view to confer the benefit of expeditious payment of a limited amount by way of compensation to the victims of an accident arising out of the use of a motor vehicle on the basis of no fault liability. In the matter of interpretation of a beneficial legislation the approach of the courts is to adopt a construction which advances the beneficent purpose underlying the enactment in preference to a construction which tends to defeat that purpose."
23. Rita Devi's Judgment has also been reiterated by the Hon'ble High Court of Delhi in Judgment dated 06.11.2003 in FAO Nos. 473, 474 & 475 of 2001 titled as New India Assurance Co. Ltd. Vs. Alexander M.P. & Ors.
24. Reliance is also being placed upon the Judgment of Hon'ble Delhi High Court in case titled as Royal Sundram General Insurance Co. Ltd. Vs. Shivani & Ors., MAC APP No. 320/2021, decided on 27.08.2024, wherein it was held as under :-
"35. Upon perusal of the aforesaid, it is observed that as per the settled position of law, when the dominant intent of an act is to kill a particular individual, such an act would be considered as a murder simpliciter, and in such cases the insurance company cannot be made liable to pay compensation and the liability would fall upon the driver or the owner of the offending vehicle. However, when the dominant intent to kill is missing and the death occurs in the course of any other felonious act, not originally intended to result into a MACP No. 165/19 Birjesh & Ors. Vs. Ashfaq & Ors. 21.11.2024 Page 11 of 31 murder, such a case would come under the purview of accidental murder. In such cases, the insurance company is held liable for compensation as the murder is a byproduct of another criminal act and is caused accidentally. .
.
.
43. It is a settled position of law, as held by the Hon‟ble Supreme Court in Sunita v. Rajasthan SRTC, (2020) 13 SCC 486, that mere registration of an FIR under Sections 302/307 of the Indian Penal Code, 1860, does not mean that the accused against whom the FIR is registered had murdered the deceased or had any intention to kill such person."
25. In light of above said case laws, the Tribunal is convinced that the present case falls within the purview of the Motor Vehicles Act, 1988 and that the accident was caused on account of rash driving of a motor vehicle by R-1.
26. It is well settled that the procedure followed for proceedings conducted by an accident tribunal is similar to that followed by a Civil Court and in Civil matters, the facts are required to be established on preponderance of probabilities and not beyond reasonable doubt, as are required in a criminal prosecution. Reference in this regard is made to the judgment of Hon'ble Apex Court reported as (2009) 13 SC 530 in Bimla Devi and others Vs. Himachal Road Transport Corporation and others, wherein it has been observed that strict proof of an accident caused by a particular vehicle in a particular manner may not be possible to be done by the petitioners and the petitioners were merely to establish their case on the touchstone of preponderance of probability.
27. Pertinently, respondent no. 1 himself was the best MACP No. 165/19 Birjesh & Ors. Vs. Ashfaq & Ors. 21.11.2024 Page 12 of 31 witness who could have stepped into the witness box to rebut his involvement in the aforesaid accident, which he has failed to do. Therefore, an adverse inference is drawn against the respondent no.1/driver in terms of judgment of Hon'ble High Court of Delhi passed in the case of Cholamandalam M.S. General Insurance Company Ltd. Vs. Kamlesh, reported in 2009 (3) AD (Delhi)
310.
28. In view of foregoing discussion, it stands proved on preponderance of probability that the aforesaid accident took place due to rash driving of the offending vehicle bearing registration no. DL-1LX-3092 and the said vehicle at that time was driven by respondent no. 1, owned by respondent no. 2 and insured with respondent no. 3. Hence, this issue is decided in favour of the petitioners and against the respondents.
29. ISSUE NO. 22. Whether the petitioners are entitled for compensation? If so, to what amount and from whom? OPP.
30. As rashness and negligence on part of driver of the offending vehicle/respondent No. 1 has been proved, the petitioners have become entitled to be compensated for death of their family member in the said accident, but the computation of compensation and liability to pay the same are required to be decided. The compensation to which the petitioners are entitled shall be under the heads as discussed hereinafter.
(i) Loss of dependency
31. The petitioner no. 1 being wife of the deceased MACP No. 165/19 Birjesh & Ors. Vs. Ashfaq & Ors. 21.11.2024 Page 13 of 31 stepped into the witness box as PW1 and filed her evidence by way of affidavit as Ex. PW1/A wherein she claimed that her deceased husband was working with Delhi Traffic Police as a Zonal Officer and posted at Traffic Circle Delhi Cantt. and was getting salary of Rs.65,000/- per month along with other service benefits. PW1 has tendered on record copy of employment ID card of deceased as Ex. PW1/3 (OSR) and copy of salary slip of deceased for the month of October, 2018 as Mark A.
32. In order to prove the same, the petitioners have examined Head Constable Neeraj Kumar from DCP Traffic Headquarters, Account Branch, Todapur, New Delhi as PW2 who has placed on record attested copy of salary slip of deceased for the month of October, 2018 as Ex. PW2/A. During cross examination, PW2 deposed that he maintained salary record of all the employees. He had taken out the print out of salary slip from the system and the same is signed and attested by DDO ACP Indrawati. He further deposed that he cannot tell whether any group accidental insurance policy was taken by the department for the coverage of risk of Delhi Police employees.
33. The petitioners have also examined Head Constable Vikrant Tyagi from DCP Headquarters, HACR Branch, Todapur, New Delhi as PW3 who has placed on record attested copy of service record of deceased as Ex. PW3/A. During cross examination, he deposed that at the time of death of deceased, his family was getting monthly pension of Rs.21,400/- w.e.f. 14.11.2018. He further deposed that a sum of Rs.4,66,520/- was paid to family of deceased towards leave encashment, Rs.30,000/- towards CGHS and Rs.38,704/- towards other heads.
MACP No. 165/19 Birjesh & Ors. Vs. Ashfaq & Ors. 21.11.2024 Page 14 of 31He further deposed that he did not know whether any group accidental insurance policy was taken by the department or not.
34. Perusal of attested copy of salary slip of deceased for the month of October, 2018 as Ex. PW2/A reflects that the deceased was working on the post of Head Constable (Ex) and was getting gross salary of Rs.64,061/- per month. Accordingly, the annual gross salary of deceased comes out to be Rs.7,68,732/- (Rs.64,061/- X 12).
35. In view of the settled law on subject, the tax liability of the deceased, if any, is to be reduced from his above annual earnings as his 'income' means the actual income less the tax paid, as was also approved in the case of National Insurance Company Ltd. Vs. Pranay Sethi & Ors. (2017) 16 SCC 680. After giving the benefits, an amount of Rs.29,376/- is required to be reduced towards income tax from earnings of the deceased. The net annual earnings of the deceased thus come to Rs.7,39,356/- (Rs.7,68,732/- - Rs. 29,376/-) and the monthly income of deceased comes out to be Rs.61,613/-.
36. In order to prove the age of deceased, PW1 has tendered on record copy of PAN card of deceased as Ex. PW1/2 (OSR) as well as employment ID card of deceased as Ex. PW1/3 (OSR). In both these documents, the date of birth of deceased is found recorded as 06.01.1970. Hence, going by this document, the age of deceased as on the date of accident i.e. on 13.11.2018 was around 48 years, 10 months and 7 days. In terms of law laid down by the Hon'ble Supreme Court in the case of Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr., (2009) 6 SCC 121, which has also been approved by the Constitution Bench of MACP No. 165/19 Birjesh & Ors. Vs. Ashfaq & Ors. 21.11.2024 Page 15 of 31 the Hon'ble Apex Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi & Ors. (2017) 16 SCC 680, the multiplier of '13' is applicable in the present case.
37. Now coming to calculation of loss of dependency, the present claim petition has been filed by four petitioners i.e. wife and children of deceased. There is no dispute to the assertion that all the petitioners were dependent upon the deceased at the time of accident. Hence, in terms of law laid down by the Hon'ble Supreme Court in the case of Sarla Verma & Ors. (Supra) and Pranay Sethi & Ors. (Supra), 1/4th of earnings of deceased shall be deducted towards his personal and living expenses.
38. Further, in view of the law laid down in the case of Pranay Sethi & Ors. (Supra), the petitioners are held entitled to 30% addition towards future prospects. Thus, the loss of dependency in the petitioners case comes to Rs.93,71,337/- (rounded off) {(Rs.61,613/-X 12 X 13 X 3/4 X 130/100)}.
(ii) COMPENSATION UNDER NON-PECUNIARY HEADS
39. In terms of propositions of law laid down by the Hon'ble Supreme Court in case of National Insurance Company Ltd. Vs. Pranay Sethi (Supra), the petitioners are also held entitled to amount of Rs.15,000/- each under the head of loss of estate and funeral expenses, i.e. Rs.30,000/- under both heads. Further, in view of Full Court judgment dated 30.06.2020 passed by Hon'ble Apex Court in United India Insurance Co. Vs. Satinder Kaur @ Satwinder Kaur & Ors. (2020) 06 SC CK 0036 (Civil Appeal Nos. 2705 and 2706 of 2020), the petitioners are MACP No. 165/19 Birjesh & Ors. Vs. Ashfaq & Ors. 21.11.2024 Page 16 of 31 entitled to Rs.40,000/- each towards 'loss of consortium', in addition to Rs.30,000/- granted under the conventional head of 'loss of estate' and 'funeral expenses'.
40. Pertinently, the Hon'ble Apex Court has also held in National Insurance Company Ltd. Vs. Pranay Sethi (Supra) that compensation awarded under the conventional heads shall be enhanced at the rate of 10% in every three years and a period of 6 years since then stands already expired. Hence, the petitioners in this case are also entitled to an increase @ 10% on the amount awarded under the conventional head of 'loss of estate', 'funeral charges' and 'loss of consortium' after expiry of three years and further 10% after expiry of another three years. The petitioners are thus awarded a total sum of Rs.2,29,900/- [(Rs.40,000/- + 10% of Rs.40,000/-= Rs. 44,000/- + 10% of Rs. 44,000/- = Rs. 48,400/- X 4 = Rs.1,93,600/-) + (Rs. 30,000/- + 10% of Rs.30,000/- = Rs.33,000/- + 10% of Rs. 33,000/- = Rs. 36,300/-)] under this head.
ISSUE NO.3/RELIEF
41. In view of finding on issue number 2, the petitioners are held entitled to a sum of Rs.96,01,237/- (Rupees Ninety Six Lakh One Thousand Two Hundred Thirty Seven only) (Rs.93,71,337/- + Rs.2,29,900/-) along with interest @ 7.5% per annum from the date of filing of claim petition. However, it is directed that the amount of interim award and interest for the suspended period, if any, during the course of this inquiry, shall be liable to be excluded from the award amount.
APPORTIONMENT MACP No. 165/19 Birjesh & Ors. Vs. Ashfaq & Ors. 21.11.2024 Page 17 of 31
42. Out of the awarded amount, 70% share is being awarded to petitioner no. 1, i.e. wife of deceased and the remaining 10% share each is being awarded to petitioners no. 2 to 4, i.e. children of deceased.
RELEASE
43. Out of amount awarded to petitioner no. 1, 90% amount is directed to be kept with UCO Bank, Patiala House Court, New Delhi in the Motor Accident Claims Annuity Deposit (MACAD) in form of 200 monthly fixed deposit receipts (FDRs) of equal amounts for a period of 1 to 200 months in succession, as per scheme formulated by the Hon'ble Delhi High Court vide order dated 01.05.2018 in FAO No. 842/2003, titled as Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors. and as implemented vide subsequent order dated 07.12.2018 and order dated 08.01.2021 passed in the said case. The amount of FDRs on maturity would be released in her saving/MACT Claims SB Account bearing No. 7697000100055901, having PAN No. ARLPB5612R and IFSC Code PUNB0769700, being maintained with Punjab National Bank, Ramphal Chowk, Sector-7, New Delhi-110075 and the remaining 10% amount each is also directed to be released into her above said account, which can be withdrawn through withdrawal form and utilized by her.
44. Out of amount awarded to petitioner no. 2 to 4 each, 90% amount is directed to be kept with UCO Bank, Patiala House Court, New Delhi in the Motor Accident Claims Annuity Deposit (MACAD) in form of 100 monthly fixed deposit receipts (FDRs) of equal amounts for a period of 1 to 100 months in MACP No. 165/19 Birjesh & Ors. Vs. Ashfaq & Ors. 21.11.2024 Page 18 of 31 succession, as per scheme formulated by the Hon'ble Delhi High Court vide order dated 01.05.2018 in FAO No. 842/2003, titled as Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors. and as implemented vide subsequent order dated 07.12.2018 and order dated 08.01.2021 passed in the said case. The amount of FDRs on maturity would be released in their respective savings/MACT Claim SB Accounts bearing No. No.7697000100055938,7697000100055910and76970001000559 56, having PAN Nos. ASHPV6063F, DOJPP2301M and KJSPS7892P and IFSC Code PUNB0769700, being maintained with Punjab National Bank, Ramphal Chowk, Sector-7, New Delhi-110075 and the remaining 10% amount each is also directed to be released into their above said accounts, which can be withdrawn through withdrawal form and utilized by them.
45. The disbursement to the petitioners is, however, subject to addition of future interest till deposit proportionately and also deduction of proportionate tax on the interest amount or amount of interim award, if any, to/from their shares.
46. The bank shall not permit any joint names to be added in the savings bank accounts or MACAD scheme accounts of petitioners i.e. the bank account of petitioners shall be individual account and not a joint account.
47. The original fixed deposits shall be retained by the UCO Bank, PHC, New Delhi in safe custody. However, the statement containing FDR numbers, amounts, dates of maturity and maturity amounts shall be furnished by the said bank to the petitioners and the above amount shall be released in account of petitioners by the Manager, UCO Bank, PHC, ND through MACP No. 165/19 Birjesh & Ors. Vs. Ashfaq & Ors. 21.11.2024 Page 19 of 31 RTGS/NEFT/or any other electronic mode.
48. The monthly interest be credited by Electronic Clearing System (ECS) in the saving bank accounts of the petitioner(s) near the place of their residence.
49. The maturity amount of the FDR (s) on monthly basis net of TDS be credited by Electronic Clearing System (ECS) in the above accounts of petitioners.
50. No loan, advance or withdrawal or pre-mature discharge be allowed on the MACAD without permission of the Court.
51. The concerned bank shall not issue any cheque book and/or debit card to petitioner(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 petitioner(s) so that no debit card be issued in respect of the account of the petitioner(s) from any other branch of the bank.
52. The bank shall make an endorsement on the passbook of the petitioner(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 petitioner(s) shall produce the passbook with the necessary endorsement before the Court on the next date fixed for compliance.
53. 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 petitioner(s) is sufficient compliance of clause above.
LIABILITY MACP No. 165/19 Birjesh & Ors. Vs. Ashfaq & Ors. 21.11.2024 Page 20 of 31
54. The Insurance Company has examined one Ms. Snigdha Chauhan, Executive Legal from their Company as R3W1 who deposed that the alleged offending vehicle was duly insured with them in the name of respondent no. 2 w.e.f. 12.08.2018 to 11.08.2019 subject to terms and conditions of the insurance policy and placed on record copy of insurance policy as Ex. R3W1/5. She further deposed that notice under Order 12 Rule 8 CPC Ex. R3W1/1 was sent to the driver and owner for production of original permit, fitness and driving license of the alleged offending vehicle. She has placed on record original postal receipts Ex. R3W1/2, Ex. R3W1/3 and Ex. R3W1/4. She further deposed that the respondent no. 1 was not holding a valid and effective driving license at the time of accident and he was chargesheeted under Section 3/181 of the MV Act by the police. She further deposed that the death of deceased was not caused due to accident but by an intentional act of respondent no. 1.
55. It is also the contention of the Insurance Company that since R-1 had stolen the vehicle of R-2/registered owner, neither the registered owner/R-2 nor the Insurance Company was liable to pay the compensation amount.
56. In this regard, I shall refer to the Judgment of Hon'ble Delhi High Court in case titled as United India Insurance Co. Ltd. Vs. Anita Devi & Ors., MAC Appeal No. 15 of 2022, decided on 17.01.2022 wherein it was held as under :-
"6. The question that arises for consideration is as to whether the insurance company is absolved of the liability to pay the amount in a case where the vehicle is stolen and unauthorisedly being driven by somebody else.MACP No. 165/19 Birjesh & Ors. Vs. Ashfaq & Ors. 21.11.2024 Page 21 of 31
7. The Supreme Court of India in United India Insurance Company vs. Lehru and Ors, 2003(3) SCC 338 has held that in order to avoid the liability, the insurer must establish that there was a willful breach on the part of the insured.
8. Admittedly in the present case the insurance company has not been able to show any breach on the part of the insured to avoid its liability.
9. The judgment in the case of Lehru (supra) was also considered by the High Court of Karnataka in MFA No. 5342 of 2010 (MV) order dated 05.07.2018 titled Sri Sathish Kini vs. Smt. Jnaneshwari M.H.Nutan wherein, in similar circumstances, the Court has held that MAC.APP.15/2022 Digitally Signed 2 By:JUSTICE SANJEEV Digitally Signed By:KUNAL SACHDEVA MAGGU Signing Date:17.01.2022 Signing Date:17.01.2022 23:32:45 22:00 This file is digitally signed by PS to HMJ Sanjeev Sachdeva.
the judgment in Lehru (Supra) is complete answer to the contention of the insurance company and the insurance company may have a claim for contribution from the driver.
10. I am in respectful disagreement with the said judgment of the Madras High Court in New India Assurance Co Ltd vs. Selvarajamani & Ors, 1998 ACJ 547 relied on by learned counsel appearing for the appellant. Said judgment does not consider the proposition as laid down by the Supreme Court in Lehru (supra) as to whether there is a willful breach on the part of the insured or not so as to entitle the insurer to avoid the liability.
11. Furthermore, if the proposition of the insurance company was accepted, it would militate against the very concept of a beneficial legislation for the victims of an accident. If such a finding were to be returned then the effect would be that even though a vehicle is insured but is MACP No. 165/19 Birjesh & Ors. Vs. Ashfaq & Ors. 21.11.2024 Page 22 of 31 stolen, not only would the insurance company be entitled to avoid its liability but the owner of the vehicle who has insured his vehicle against theft and accident would be saddled with a liability for no fault of his. Alternatively, the claimants would be left without any remedy to seek compensation.
12. In view of the judgment of the Supreme Court in Lehru (supra), which lays down that unless the insurance company is able to show that there is a willful breach of the policy on the part of the insured, insurance company cannot avoid its liability."
57. Ld. Counsel for petitioners has relied upon the Judgment of Hon'ble Delhi High Court in case titled as The New India Assurance Co. Ltd. Vs. Ram Murthy & Ors., MAC. APP. 434/2013, decided on 23.05.2016, wherein it was held as under :-
"21. It is well settled that the liability of the insurer to indemnify under the insurance policy against third party risk is not simpliciter contractual but primarily, rather foremost, statutory. It is not necessary that in each and every claim arising out of a motor vehicular accident, the relationship of master and servant between the owner and the driver must be established before the insurer can be called upon to satisfy the award. It is not difficult to conceive of cases where the identity of the driver may not even be known. Such cases include not only those where the motor vehicle may have been stolen but also such as where the driver deployed by the owner may have unauthorizedly passed it on in the hands of another person who, having caused the accident, runs away never to be caught. It, therefore, cannot be laid down as an unexceptional rule that an accident claim case on the fault liability principle cannot be maintained in absence of the principal tort-feasor MACP No. 165/19 Birjesh & Ors. Vs. Ashfaq & Ors. 21.11.2024 Page 23 of 31 (driver). If the identity of the driver is not known, or if such person cannot be hauled in for any other just or sufficient reason (as in a case where the driver may have also died), holding a claim petition not maintainable on account of absence of the driver from the array would be unjust and unfair.
22. Having regard to the object behind the statutory mandate for compulsory third party insurance cover, the statutory defences can be availed by the insurer only in the event of it proving willful breach on the part of the insurer. The negligent driving of the motor vehicle by a thief, if cogently and properly proved, cannot be said to be with the authority of the owner of the vehicle and, thus, would not constitute such willful breach. It is natural sequitur of these conclusions that absence of proof contrary to the assumptions that the person who had stolen the vehicle, and may have been the driver at the relevant point of time, was not holding a valid or effective driving licence, would not lead to the owner being held accountable, he himself being the sufferer on account of the theft and he having no control over the conduct of the thief. Resultantly, the liability to compensate would not fasten upon him. But, this cannot mean that the insurer gets away with its statutory responsibility to indemnify.
23. One must, however, hasten to add that if theft of the motor vehicle anterior to the accident giving rise to cause of action were to be taken as a defence by the owner, the liability of the owner to compensate would be a mixed question of fact and law. The owner must prove that after the theft had been committed and come within his knowledge, he had taken requisite steps with all promptitude including by report to police so that efforts to trace it and preclude its misuse are initiated. These steps include MACP No. 165/19 Birjesh & Ors. Vs. Ashfaq & Ors. 21.11.2024 Page 24 of 31 necessary action under Sections 48(6) and 62 of MV Act, prompting such further action as is envisaged in Section
53. The burden of proving the requisite facts concerning the theft lies squarely, and very heavily, at the door of such person (owner). Upon this onus being properly discharged, it is legitimate that the insurer (against third party risk) is called upon to satisfy the claim of the third party, on account of its statutory responsibility. It may be added that if the identity of the thief or the person at the wheel of the offending vehicle at the time of accident were to be known and established, such person (thief / driver) being the principal tort-feasor, and liable in law to compensate, the insurer called upon to satisfy the third party claim would deservedly be granted recovery rights against him. Similarly, if the identity of the driver (in case of stolen vehicle) or the thief were not to be immediately known, the insurer which is called upon to compensate the third party would have to await enforcement of its recovery rights against such principal tort-feasor till such time such identity is discovered."
58. On the other hand, Ld. Counsel for Insurance Company has relied upon the Judgment of Hon'ble Delhi High Court in case titled as IFFCO Tokio General Insurance Co. Ltd. Vs. Sajjanpati @ Sajna & Ors., MAC Appeal No. 920/18 to show that if the vehicle was stolen at the time of accident, neither the owner nor the insurance company can be made liable to pay the compensation. This case law, however, is not applicable as the Hon'ble Delhi High Court had remanded the case back to the Tribunal to hold fresh inquiry and decide the matter afresh.
59. In view of the above mentioned case laws, R-3/Insurance Company is liable to pay compensation to the MACP No. 165/19 Birjesh & Ors. Vs. Ashfaq & Ors. 21.11.2024 Page 25 of 31 claimants. R-1 is the principal tort feasor and R-3/Insurance Company is entitled to recovery rights against R-1 only.
60. Accordingly, the recovery rights are granted to R-3 against R-1/driver. Respondent no.3 being insurer of offending vehicle, is directed to first deposit the award amount with UCO Bank, Patiala House Court Branch, along with interest @ 7.5% per annum from the date of filing of claim petition by RTGS/NEFT/IMPS in bank account being maintained in the above said bank in name of this tribunal within 30 days from today, failing which it is liable to pay interest at the rate of 9% per annum for the period of delay. In case even after lapse of 90 days from today, respondent no. 3 fails to deposit this compensation with interest, in that event, in light of judgment of the Hon'ble High Court of Delhi passed in the case of New India Assurance Company Limited Vs. Kashmiri Lal 2007 ACJ 688, this compensation shall be recovered by attaching the bank account of respondent no. 3 with a cost of Rs.5,000/-.
61. The respondent no. 3 shall inform the petitioners and their counsels through registered post that the awarded amount has been deposited so as to facilitate them to collect the same.
62. A copy of this award be given to the parties free of cost or be sent to them by email. Ahlmad is directed to send a copy of the award to Ld. Metropolitan Magistrate concerned and Delhi Legal Services Authority in view of Judgment titled as Rajesh Tyagi Vs. Jaibir Singh & Ors. passed in FAO No.842/2003 dated 12.12.2014.
63. Further, Nazir is directed to maintain the record in Form XVIII as per the directions given by the Hon'ble Delhi MACP No. 165/19 Birjesh & Ors. Vs. Ashfaq & Ors. 21.11.2024 Page 26 of 31 High Court in the above case on 08.01.2021.
64. The particulars of Form-XVII of the Modified Claims Tribunal Agreed Procedure, in terms of directions given by the Hon'ble Delhi High Court in the above case on 08.01.2021, are as under:
1. Date of the accident 13.11.2018
2. Date of filing of Form I- First N.A. Accident Report (FAR)
3. Date of delivery of Form-II to the N.A. victim(s)
4. Date of receipt of Form-III from N.A. the Driver
5. Date of receipt of Form-IV from N.A. the owner
6. Date of filing of the Form-V- N.A. Interim Accident Report (IAR)
7. Date of receipt of Form-VIA and N.A. Form VIB from the Victim (s)
8. Date of filing Form-VII-
of DAR not filed
Detailed Accident Report (DAR)
9. Whether there was any delay or No
deficiency on the part of the
Investigating Officer? If so,
whether any action/direction
warranted?
10. Date of appointment of the Not given
Designated Officer by the Insurance Company.
11. Whether the Designated Officer of No the Insurance Company submitted his report within 30 days of the DAR?
12. Whether there was any delay or No deficiencies on the part of the MACP No. 165/19 Birjesh & Ors. Vs. Ashfaq & Ors. 21.11.2024 Page 27 of 31 Designated Officer of the Insurance Company? If so, whether any action/direction warranted?
13. Date of response of the Legal offer not filed petitioner(s) of the offer of the Insurance Company.
14. Date of the award 21.11.2024
15. Whether the petitioner(s) were Yes directed to open savings bank account(s) near their place of residence?
16. Date of order by which 28.09.2019 petitioner(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 petitioner (s) and make an endorsement to this effect on the passbook(s).
17. Date on which the petitioner(s) 30.11.2023 produced the passbook of their savings bank account near the place of their residence along with the endorsement, PAN Card and Adhaar Card?
18. Permanent Residential Address of As mentioned above the petitioner(s)
19. Whether the petitioner(s) savings Yes bank account(s) is near his place of residence?
20. Whether the petitioner(s) were Yes examined at the time of passing of the award to ascertain his/their financial condition?MACP No. 165/19 Birjesh & Ors. Vs. Ashfaq & Ors. 21.11.2024 Page 28 of 31
65. File be consigned to record room after compliance of necessary formalities. Separate file be prepared for compliance report and be put up on 24.02.2025.Digitally signed
VRINDA by VRINDA KUMARI KUMARI Date: 2024.11.21 16:40:39 +0530 Announced in the open court. (Vrinda Kumari) on 21.11.2024 PO/MACT, New Delhi Encl: SUMMARY OF COMPUTATION OF AWARD AMOUNT IN FORM XV MACP No. 165/19 Birjesh & Ors. Vs. Ashfaq & Ors. 21.11.2024 Page 29 of 31 SUMMARY OF COMPUTATION OF AWARD AMOUNT IN FORM XV
1. Date of accident 13.11.2018
2. Name of the deceased Sh. Jitendra Singh
3. Age of the deceased 48 years, 10 months and 7 days
4. Occupation of the deceased HC (Ex) with Delhi Police
5. Income of the deceased Rs.61,613/- per month
6. Name, age and relationship of legal representative of deceased :
Sl. No. Name Age Relation
i) Birjesh 45 years Wife
ii) Vishakha 24 years Daughter
iii) Kumari Pooja 21 years Daughter
iv) Lakshya Kumar 18 years Son
Saroha
Sl. No. Head Amount Awarded
(Rs.)
7. Income of deceased (A) Rs. 61,613/-
8. Add : Future Prospects (B) Rs. 18,483.9/-
9. Less-Personal expenses of the Rs. 20,024.22/-
deceased (C)
10. Monthly loss of dependency Rs. 60,072.68/-
[(A+B) - C = D]
11. Annual loss of dependency Rs.7,20,872.16/-
(D x 12) 12. Multiplier 13
13. Total loss of dependency Rs.93,71,337/-
(D x 12 x E = F)
14. Medical Expenses (G) Nil MACP No. 165/19 Birjesh & Ors. Vs. Ashfaq & Ors. 21.11.2024 Page 30 of 31
15. Compensation for loss of love Nil and affection (H)
16. Compensation for loss of Rs.1,93,600/-
consortium (I)
17. Compensation for loss of estate Rs.18,150/-
(J)
18. Compensation towards funeral Rs.18,150/-
expenses (K)
19. TOTAL COMPENSATION Rs.96,01,237/-
(F + G + H + I + J+K =L)
20. RATE OF INTEREST 7.5% pa from date of AWARDED filing of claim petition till the date of award to be deposited within 30 days and 9% thereafter.
21. Interest amount up to the date of Rs.37,06,478/-
award (M)
22. Total amount including interest Rs.1,33,07,715/-
(L + M) (rounded off to
Rs.1,33,08,000/-)
23. Award amount released P-1=10% share
P-2=10% share
P-3=10% share
P-4=10% share
24. Award amount kept in FDRs/ P-1=90% share MACAD P-2=90% share P-3=90% share P-4=90% share
25. Mode of disbursement of the Through Bank award amount to petitioner(s)
26. Next date for compliance of the 24.02.2025 award VRINDA Digitally signed by VRINDA KUMARI KUMARI Date: 2024.11.21 (Vrinda Kumari) 16:40:48 +0530 PO/MACT, New Delhi 21.11.2024 MACP No. 165/19 Birjesh & Ors. Vs. Ashfaq & Ors. 21.11.2024 Page 31 of 31