Delhi District Court
Nusrat Jahan vs Akhilesh Kumar Page 1 Of 21 on 30 January, 2019
Nusrat Jahan vs Akhilesh Kumar Page 1 of 21
IN THE COURT OF SH. AMIT BANSAL, PRESIDING OFFICER, MOTOR
ACCIDENT CLAIMS TRIBUNAL, NORTH WEST DISTRICT, ROHINI
COURTS, DELHI
New No. 4959116
MACT Petition : 35713
UNIQUE ID No. : DLNW01004162013
1. Ms. Nusrat Jahan w/o Late Sh. Bhure Miya (wife of deceased)
2. Farmood ( major son of deceased)
3. Irfan (major son of deceased)
4. Salman Khan (minor son of deceased)
5. Salma (major daughter of deceased)
6. Farman (major son of deceased)
7. Subhan (minor son of deceased)
All R/o H. No. 18A, Village Sahipur, Shalimar Bagh, Delhi.
........ Petitioners/claimants
Vs.
1. Sh. Akhilesh Kumar S/o Sh. Subedar Singh
R/o Vill. Bawali, PO Angodpur, Etah, UP
.....(owner/Respondent No.1)
2. Sh. Chabi Nath Singh Yadav S/o Gyadeen Singh Yadav
R/o Bhudnagaria, Rajinder Nagar, Farukabad, UP
.....(driver/Respondent no. 2)
3. Cholamandlam MS General Insurance Co.,
No. 81, Pusa Road, Metro Pillar No. 6,
First Floor, (Opp. HP Petrol) New Delhi.
......(Insurer/Respondent no. 3)
..... Respondents
Other details
DATE OF INSTITUTION : 30.07.2013
DATE OF RESERVING JUDGMENT : 28.01.2019
DATE OF PRONOUNCEMENT : 30.01.2019
FORM - V
1. COMPLIANCE OF THE PROVISIONS OF THE MODIFIED CLAIMS
TRIBUNAL AGREED PROCEDURE TO BE MENTIONED IN THE
AWARD AS PER FORMAT REFERRED IN THE ORDER PASSED BY
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THE HON'BLE DELHI HIGH COURT IN FAO 842/2003 RAJESH
TYAGI Vs. JAIBIR SINGH & ORS. VIDE ORDER DATED 07.12.2018.
1. Date of the accident 18.05.2012
2. Date of intimation of the accident by the It is outstation
investigating officer to the Claims Tribunal accident of
(Clause 2) Moradabad, UP.
3. Date of intimation of the accident by the It is outstation
investigating officer to the insurance company. accident of
(Clause 2) Moradabad, UP
4. Date of filing of Report under section 173 It is outstation
Cr.P.C. before the Metropolitan Magistrate accident of
(Clause 10) Moradabad, UP
5. Date of filing of Detailed Accident Information It is outstation
Report (DAR) by the investigating Officer before accident of
Claims Tribunal (Clause 10) Moradabad, UP
6. Date of Service of DAR on the Insurance It is outstation
Company (Clause 11) accident of
Moradabad, UP
7. Date of service of DAR on the claimant (s). It is outstation
(Clause 11) accident of
Moradabad, UP
8. Whether DAR was complete in all respects? It is outstation
(Clause 16) accident of
Moradabad, UP
9. If not, whether deficiencies in the DAR removed It is outstation
later on? accident of
Moradabad, UP
10. Whether the police has verified the documents It is outstation
filed with DAR? (Clause 4) accident of
Moradabad, UP
11. Whether there was any delay or deficiency on It is outstation
the part of the Investigating Officer? If so, accident of
whether any action/direction warranted? Moradabad, UP
12. Date of appointment of the Designated Officer It is outstation
by the insurance Company. (Clause20) accident of
Moradabad, UP
13. Name, address and contact number of the Sh. S.K. Tyagi
Designated Officer of the Insurance Company. Advocate
(Clause 20)
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14. Whether the designated Officer of the Insurance It is outstation
Company submitted his report within 30 days of accident of
the DAR? (Clause 20)Without insurance Moradabad, UP
15. Whether the insurance company admitted the It is outstation
liability? If so, whether the Designated Officer of accident of
the insurance company fairly computed the Moradabad, UP
compensation in accordance with law. (Clause
23)
16. Whether there was any delay or deficiency on It is outstation
the part of the Designated Officer of the accident of
Insurance Company? If so, whether any Moradabad, UP
action/direction warranted?
17. Date of response of the claimant (s) to the offer It is outstation
of the Insurance Company .(Clause 24) accident of
Moradabad, UP
18. Date of the Award 30.01.2019
19. Whether the award was passed with the consent No
of the parties? (Clause 22)
20. Whether the claimant(s) were directed to open Yes
saving bank account(s) near their place of
residence? (Clause 18)
21. Date of order by which claimant(s) were 20.04.2018
directed to open saving bank account (s) near
his place of residence and produce PAN Card
and Aadhar Card and the direction to the bank
not issue any cheque book/debit card to the
claimant(s) and make an endorsement to this
effect on the passbook(s). (Clause 18)
22. Date on which the claimant (s) produced the 19.10.2018
passbook of their saving bank account near the
place of their residence along with the
endorsement, PAN Card and Aadhar Card?
(Clause 18)
23. Permanent Residential Address of the As mentioned above
Claimant(s) (Clause 27)
24. Details of saving bank account(s) of the Petitioner no.1 Smt.
claimant(s) and the address of the bank with Nusrat Jahan savings
IFSC Code (Clause 27) bank a/c No.
3690052993,
petitioner no. 2 Sh.
Farmood Khan
savings bank a/c no.
3682776712,
petitioner no. 3 Sh.
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Irphan savings bank
a/c no. 3672840240,
petitioner no. 4 Ms.
Salma savings bank
a/c no. 3689222112,
petitioner no. 5
Mohd. Farman Khan
savings bank a/c no.
3672828868,
petitioner no. 6
Salman Khan savings
bank a/c no.
3690055246 and
petitioner no. 7
Subhan savings bank
a/c no. 3690055597
with Central Bank of
India, Shalimar Bagh
Branch, Delhi.
IFSC : CBIN0283503
25. Whether the claimant(s) saving bank account(s) Yes
is near his place of residence? (Clause 27)
26. Whether the claimant(s) were examined at the Yes
time of passing of the award to ascertain
his/their financial condition. (Clause 27)
27. Account number/CIF No, MICR number, IFSC 86143654123,
Code, name and branch of the bank of the 110002427,
Claims Tribunal in which the award amount is to SBIN0010323, SBI,
be deposited/transferred. (in terms of order Rohini Courts, Delhi
dated 18.01.2018 of Hon'ble Delhi High Court in
FAO 842/2003 Rajesh Tyagi vs Jaibir Singh.
JUDGMENT
1. Present claim petition has been preferred under Section 166 and 140 of Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act') claiming compensation for a sum of Rs. 50,00,000/ (Rupees Fifty lakhs Only) along with interest @ 18% p.a. in respect of accidental death of Sh. Bhure Miya S/o Late Sh. Shubrati in a motor vehicular accident.
2. The facts mentioned in the petition/file are that on 18.05.2012 at about 8:30 am, Sh. Bhure Miya (hereinafter referred to as 'deceased') was going by driving Wagon R car bearing no. DL2CAA4313 from his house to Nusrat Jahan vs Akhilesh Kumar Page 4 of21 Nusrat Jahan vs Akhilesh Kumar Page 5 of 21 village Mehmudpur Maafitath, Bilari, Muradabad, UP. When he reached near Gram Yusufpur, near Nagalia Petrol Pump, Delhi, suddenly a Truck bearing registration no. UP82T0089 (hereinafter referred to as "offending vehicle") which was being driven by its driver/R2 in a rash and negligent manner hit the car of deceased. Due to said impact, deceased expired on the spot. It has been stated that driver of the offending vehicle fled away from the spot.
The postmortem on the dead body of the deceased was conducted by doctors of CHC Sambhal, UP.
3. R1/ Sh. Akhilesh owner and Sh. Chabi Nath/driver/R2 of the offending vehicle haves not filed their written statement and were ultimately proceeded against exparte vide order dated 08.08.2017.
4. The Cholamandlam MS Insurance Company Ltd./R3 has also filed its written statement, wherein it was admitted that the offending vehicle was duly insured with it vide cover note no. 8773588, which was valid w.e.f 20.03.2012 to 19.03.2013 in the name of R1 i.e. covering the date of accident 18.05.2012.
5. From the pleadings of the parties, the following issues were framed by this court vide order dated 04.09.2017: (1) Whether on 18.05.2012 at about 8:30 am, at village Yusufpur Nagila, near Petrol Pump, Muradabad, UP, one Eicher canter bearing registration no. UP82T0089, which was being driven rashly and negligently by Akhilesh Kumar hit Wagon R car bearing registration no. DL2CAA4313 and caused the death of Sh. Bhure Miya? OPP (2). Whether petitioners are entitled to compensation, if so, to what amount and from whom? OPP (3). Relief.
6. Petitioners have examined Sh. Irfan (son of deceased) as PW1 and Sh. Mehbob, eye witness as PW2.
The record would show that respondents have not examined any witness in support of their case.
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7. I have heard the arguments addressed on behalf of ld counsel for petitioners and ld counsel for insurance co/R3. Now, I proceed to discuss the issues in the succeeding paragraphs.
8. Issue wise findings are as under: ISSUES NO. 1 The onus to prove this issue beyond preponderance of probabilities is upon the petitioners.
The record would show that in issue no. 1 as framed on 04.09.2017 mentioned the name of Mr. Akhilesh Kumar as driver of the offending vehicle whereas Mr. Akhilesh Kumar is the owner of the offending vehicle and Mr. Chabi Nath Singh is the driver of the offending vehicle. It was an admitted position during final arguments that it was only a typographical error and proper evidence has already been lead on the issue. In facts, the issue no. 1 has been properly reframed as under: (1) Whether on 18.05.2012 at about 8:30 am, at village Yusufpur Nagila, near Petrol Pump, Muradabad, UP, one Eicher canter bearing registration no. UP82T0089, which was being driven rashly and negligently by Chabi Nath hit Wagon R car bearing registration no. DL 2CAA4313 and caused the death of Sh. Bhure Miya? OPP Petitioners have examined Sh. Mehboob, eye witness as PW2. He has tendered his evidence by way of affidavit as Ex. PW2/A. PW2 deposed that on 18.05.2012 he was going from Mehmudpur Mafi to Malakpur to see the ailing sister of his friend. He deposed that when he reached at village Yusufpur near Nagalia petrol pump, he saw that one truck/tempo bearing registration no. UP82T0089 (offending vehicle) was coming from Dingrapur side at very high speed and its driver was driving it in a very rash and negligent manner. He further deposed that he saw that one car bearing no. DL2CAA4319 was coming from Delhi towards village Mehmudpur Mafi side. He further deposed that he saw that the driver of the Nusrat Jahan vs Akhilesh Kumar Page 6 of21 Nusrat Jahan vs Akhilesh Kumar Page 7 of 21 offending vehicle due to very high speed could not control it and hit the above said car. He deposed that he immediately rushed to the spot and found that the driver of the car was Bhure Miya who was known to him since his birth as the deceased was his real chacha. He deposed that due to the said accident Mr. Bhure Miya who was driving the said car expired at the spot. He deposed that he himself report the matter at PS Pakbada as a result FIR bearing no. 119/12 u/s 279/304A/427 IPC was registered on his statement. He specifically deposed that case accident occurred due to negligent driving of offending vehicle by its driver which was being driven at a very high speed and in a rash and negligent manner.
PW2 was not cross examined by R1 and R2 despite opportunity given and his cross examination by R1 and R2 was nil, opportunity given. In the said circumstances, R2 shall be deemed to admit the above said testimony of PW2 to the effect that the case accident was caused on the above said date, time and place due to the rash and negligent driving of the offending vehicle by R2 whereby the deceased expired.
During his cross examination on behalf of the insurance co/R3, PW2 inter alia deposed that deceased was his uncle, FIR was registered on his statement, his statement was recorded by the police at the spot, police reached the spot after 57 minutes of the accident, the accident occurred at about 77:30 am, he did not remember the name of the police official who had recorded his statement and at the time of accident he was not accompanying the deceased but was going from his village to village Malakpur to see the sister of a friend, who was ill. He further deposed that the speed of the car being driven by the deceased was about 40 Km/hr at the time of accident and the speed of the offending tempo must be around 90 km/hr at the time of accident. He also deposed that he was coming from the direction in which the offending vehicle was coming at the time of accident and was behind it and that he saw the offended vehicle/car at a distance of about 100 meters. He denied the suggestion that he had seen the vehicles afer the accident had taken place. He volunteered that he had seen the actual accident taking Nusrat Jahan vs Akhilesh Kumar Page 7 of21 Nusrat Jahan vs Akhilesh Kumar Page 8 of 21 place. He admitted that there was a head on collision between the offending vehicle and the car. He denied the suggestion that the accident took place in the middle of the road. He further deposed that police official recorded his statement at the spot and thereafter he put his signatures on the said statement, however, he did not know what was written in it by the police official as he being an illiterate person can only sign. He denied the suggestion that he was not present at the spot at the time of accident or that FIR was not registered on his statement or that he was deposing falsely as the deceased was his real uncle or that respondent no. 2 was not driving his vehicle in a rash and negligent manner or that the accident took place due to rash and negligent driving of the deceased.
Nothing material has appeared in the cross examination of PW2 to discredit his testimony regarding the date, time and place and the manner in which the case accident was caused by the driver of the offending vehicle by driving it in a rash and negligent manner. The testimony of PW2 is trustworthy and can be relied upon.
The copy of criminal case record would show that the case FIR No. 119/12 u/s 279/304A/427 IPC PS Pakwara was registered and that the charge sheet u/s 279/304A/427 IPC was also filed against R2/driver of the offending vehicle.
In the facts and circumstances of the case, the charge sheet u/s 279/304A/427 IPC against R2 can be relied upon to show that the case accident was caused due to rash and negligent driving of R2 while driving the offending vehicle.
The postmortem report of the deceased is also on record. The copy of mechanical inspection report of both the said vehicles is also on record mentioning damages suffered by the both vehicles in the accident. The death certificate of deceased is also on record as Ex. PW1/3 mentioning his date of death as 18.05.2012 (date of accident).
The issue no. 1 is only to be proved by claimants beyond Nusrat Jahan vs Akhilesh Kumar Page 8 of21 Nusrat Jahan vs Akhilesh Kumar Page 9 of 21 preponderance of probabilities as distinguished from beyond reasonable doubt. In view of above said discussion, it has been proved beyond preponderance of probabilities that the case accident was caused by R2 while driving the offending vehicle in a rash and negligent manner.
In the said circumstances, testimony of PW2 and other record including the FIR and Charge sheet against R2, it has been clearly proved beyond preponderance of probabilities that the case accident was caused at the above said date, time and place and in the above said manner by the rash and negligent driving of R2 by which he drove the offending vehicle rashly and negligently and hit the car of deceased and thereby causing his death.
Issue no.1 is decided in favour of petitioner and against the respondents to the effect that the case accident was caused at the above said date, time and place due to the rash and negligent driving by R2 of the offending vehicle.
Issue no. 1 is accordingly decided in favour of the petitioner and against the respondents.
9. Issue No. (2) In view of my findings on issue no.1, the petitioners are entitled to compensation.
(a) PW1 Irfan ( son of the deceased) has deposed through his evidence by way of affidavit Ex. PW1/A. He has proved his the copy of FIR as Ex. PW1/1, copy of postmortem report as Ex. PW1/2, death certificate of deceased as Ex. PW1/3, copy of passport of deceased as Ex. PW1/4, copy of passport of Smt. Nusrat Jahan/petitioner no.1 as Ex. PW1/5, copy of DL of deceased as Mark X and copy of RC of car with registration number DL2CAA4313 in the name of the deceased as Mark Y. During cross examination as conducted by insurance co/R3 he deposed that he was not an eye witness to the case accident.
The copy of passport of deceased has been proved as Ex. PW1/4 which shows the date of birth of deceased as 01.05.1964 , hence, on the date Nusrat Jahan vs Akhilesh Kumar Page 9 of21 Nusrat Jahan vs Akhilesh Kumar Page 10 of 21 of accident (18.05.2012), deceased was aged about 48 years.
PW1 deposed that at the time of accident his father was running a cotton sale and retail shop and was earning about Rs. 50,000/ per month.
During his cross examination as conducted on behalf of respondent no. 3/insurance co, PW1 deposed that he was not eye witness of the accident. He deposed that his father was an income tax payee. He further admitted that he had not filed any document to show that his deceased father was earning Rs. 50,000/ per month from his business. During his cross examination, PW1 filed the certificate issued by Pardhan of Gram Panchayat of Mehmudpur Mafi, attested copy of Parivar register and photocopy of PAN card of deceased which were proved as Ex. PW1/R3X1, Ex. PW1/R3X2 and Ex. PW1/R3X3. He admitted that as per said documents they were the permanent residents of Village Mehmudpur Mafi, District Moradabad, UP. He however, volunteered that the PAN card and ID card of the deceased were of village Sahipur, Shalimar Bagh, Delhi. He admitted that he had not filed any document to show that the deceased was working in Delhi.
The petitioners/claimants have not proved any document to prove the work or monthly income of the deceased. Petitioners have also not proved any income tax return of the deceased. Petitioners have thus failed to properly prove the monthly income of the deceased.
Petitioners have also failed to prove any educational qualification document on record.
The passport of the deceased Ex. PW1/4 would show that he was a resident of H. No. 18A, Village Sahipur, Shalimar Bagh, Delhi. PW1 has also deposed that to the effect that on 18.05.2012 his father/deceased was going from his house at above mentioned address in his car. It would primafacie show that the deceased was a resident of Delhi at the time of his death.
In view of the said discussion, it would be appropriate to assess the income of the deceased on the basis of minimum wages of an unskilled worker as fixed by the Govt. of NCT of Delhi under the Minimum Wages Act. The minimum wages of an unskilled worker at the relevant time on the date of Nusrat Jahan vs Akhilesh Kumar Page 10 of21 Nusrat Jahan vs Akhilesh Kumar Page 11 of 21 accident was Rs. 7020/ p.m. Accordingly, it would be reasonable and just to consider the income of deceased as Rs. 7020/ per month on the date of accident in question.
(b) Addition of future prospects If addition in income towards future prospects is to be made In this regard, reference should be made to the latest Constitutional Bench Judgment of Hon'ble Supreme Court of India in case of National Insurance Company Limited vs. Pranay Sethi & Ors, SLP (Civil) No. 25590 of 2014, date of decision 31.10.2017.
In the said judgment of Pranay Sethi (Supra), the Hon'ble Apex Court interalia held as under:
61. In view of the aforesaid analysis, we proceed to record our conclusions:
(i).........................................................................................
(ii) .....................................................................................
(iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30% , if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.
(iv) In case the deceased was selfemployed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.
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(v) For the 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 future expenses should be Rs. 15,000/, Rs. 40,000/ and Rs. 15,000/ respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years. "
(.... Emphasis Supplied) In the case in hand, the deceased was a self employed person and in terms of above said judgment, while determining his income for computing compensation, future prospects have to be added to fall within the ambit and sweep of just compensation under Section 168 of M.V. Act.
The age of the deceased, as discussed above, in the present case was about 48 years. In view of paragraph no. 61 (iv) of above said judgment in Pranay Sethi (Supra), the deceased would be entitled to an addition of 25% of the established income as he was between the age group of 40 to 50 years at the time of his death.
The monthly income of the deceased is thus calculated as Rs. 7020/+25% of 7020/ which comes to Rs. 7020/+ Rs.1755/ = Rs. 8,775/.
(c) Deduction towards personal and living expenses of the deceased:
Claimants are the wife and children of the deceased. PW1 admitted in his cross examination that petitioner no. 2 Farmud Khan was doing service and was already married. He further deposed that petitioner no. 5 Salma i.e. daughter of deceased was also married. He Nusrat Jahan vs Akhilesh Kumar Page 12 of21 Nusrat Jahan vs Akhilesh Kumar Page 13 of 21 deposed that he himself was also married and that petitioner no. 4 Salman Khan was studying. He admitted that now he and Farmud Khan were looking after their respective families.
In the present case, hence the deceased was having four dependents i.e. petitioner no. 1 who was wife of deceased and petitioners no 4, 6 & 7 being the sons of deceased. In view of testimony of PW1, the petitioners no 2, 3 and 5 are not dependents upon the deceased being already married.
In the present case, there were four dependents upon the deceased. Hence, the deduction towards personal and living expenses of the deceased should be 1/4th in view of the settled law by the Hon'ble Apex Court in cases of Sarla Verma vs. Delhi Transport Corporation, 2009 ACJ 1298: (2009) 6 SCC 121 which has been upheld by the Constitutional Bench of Hon'ble Apex Court in the case of Pranay Sethi (Supra) in paragraph no 61
(v) of the judgment.
(d) Selection of multiplier:
As discussed above, the age of the deceased was about 48 years at the time of his death. In view of paragraph no. 61(vii) of the judgment in the case of Pranay Sethi (Supra), the age of deceased should be the basis for applying the multiplier. As per the case of Sarla Verma (Supra), the multiplier of 13 is to be adopted when the age of the victim is between 46 years to 50 years. Accordingly, the relevant multiplier would be "13" as per judgment in case of Sarla Verma (Supra) which has been upheld in paragraph no. 61 (vi) in case of Pranay Sethi (Supra).
(e) Loss of financial dependency In the light of aforesaid facts, loss of financial dependency of the petitioner comes to Rs.10,26,675/ [i.e. Rs. 8775/ ( per month income of the deceased) X12 X13 (multiplier) X3/4 (dependency)].
10. Compensation under nonpecuniary heads/conventional heads:
In view of the judgment of Constitution Bench of Hon'ble Apex Court in case of Pranay Sethi (Supra), as held in paragraph number 61 (viii) Nusrat Jahan vs Akhilesh Kumar Page 13 of21 Nusrat Jahan vs Akhilesh Kumar Page 14 of 21 of the said judgment, the petitioners would be entitled to Rs. 15,000/ towards loss of estate, Rs. 15,000/ towards funeral expenses. Petitioner no. 1 is also entitled to Rs. 40,000/ towards loss of consortium.
11. LOSS OF LOVE & AFFECTION The Hon'ble Delhi High Court in the latest case of Bajaj Allianz General Insurance Company Ltd. Vs Pooja & Ors, MAC Appeal 798/2011, date of decision 02.11.2017 after referring to the judgment of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors.", passed in SLP(Civil) No. 25590/14 decided on 31.10.17 delivered by Constitutional Bench of Hon'ble Apex Court, accepted the submissions of the ld counsel for the insurer that nonpecuniary heads of damages would have to be restricted to the total of Rs. 70,000/ only, in view of the dispensation in Pranay Sethi (Supra). The Hon'ble Delhi High Court in the said case further held that the Constitution Bench decision did not recognize any other nonpecuniary head of damages (except loss of estate, loss of consortium and funeral expenses). In view of above said discussion, the petitioners would not be entitled to any amount under the said head of loss of love and affection.
12. Petitioner/claimant is accordingly entitled to compensation computed as under:
Loss of financial dependency Rs. 10,26,675/ Loss of Estate Rs. 15,000/ Funeral Expenses Rs. 15,000/ Loss of Consortium Rs. 40,000/ ________________ Total Rs. 10,96,675/ ________________ [Rounded off to Rs. 10,97,000/] (Rupees Ten Lakhs Nineteen Seven Thousand only) The claimants/petitioners are also entitled to interest @ 9% p.a. for the date of filing of petition i.e. w.e.f 03.07.2013 till realisation of the compensation amount. The said interest @ 9% p.a. was awarded on the award amount by the Hon'ble Apex Court in case Municipal Corporation of Delhi vs. Nusrat Jahan vs Akhilesh Kumar Page 14 of21 Nusrat Jahan vs Akhilesh Kumar Page 15 of 21 Association of Victims of Uphaar Tragedy, 2012 ACJ 48 (SC) .
The amount of interim award, if any, shall however be deducted from the above amount, if the same has already been paid to the petitioners.
13. Liability In the case in hand, the Cholamandlam MS General Insurance co./R3 has not been able to show anything on record that R1 and R2, who were the owenr and driver of the offending vehicle were not having any valid driving licence to drive the offending vehicle or that the permit of offending vehicle was not valid and as per settled law, since the offending vehicle was duly insured with the insurance company/R3, hence R3 is liable to pay the entire compensation amount to the petitioner as per law.
14. Accordingly, in the case in hand, in terms of order dated 16.05.2017 of Hon'ble High Court by Hon'ble Mr. Justice J.R. Midha in case of Rajesh Tyagi Vs. Jaibir Singh and Ors., Cholamandlam MS General Insurance co./R3 is directed to deposit the awarded amount of Rs. 10,97,000/ within 30 days from today within the jurisdiction of this Tribunal i.e. State Bank of India, Rohini Courts Branch, Delhi alongwith interest at the rate of 9 % per annum from the date of filing of the petition till notice of deposition of the awarded amount to be given by R3/Insurance co to the petitioners and their advocates and to show or deposit the receipt of the acknowledgement with the Nazir as per rules. R3/insurance co further directed to deposit the awarded amount in the above said bank by means of cheque drawn in the name of above said bank alongwith the name of the claimants mentioned therein. The said bank is further directed to keep the said amount in fixed deposit in its own name till the claimants approach the bank for disbursement, so that the awarded amount starts earning interest from the date of clearance of the cheque.
APPORTIONMENT
15. Statement of petitioners in terms of clause 29 MCTAP was recorded. I have heard the petitioners and ld. counsel for the petitioners/claimants regarding financial needs of the injured/petitioner and in view of the judgment Nusrat Jahan vs Akhilesh Kumar Page 15 of21 Nusrat Jahan vs Akhilesh Kumar Page 16 of 21 in the case of General Manager, Kerala State Road Transport Corporation Vs. Susamma Thomas & Others, 1994 (2) SC, 1631, for appropriate investments to safeguard the amount from being frittered away by the beneficiaries owing to their ignorance, illiteracy and being susceptible to exploitation, following arrangements are hereby ordered: Keeping in view the facts and circumstances of the case, on realization, an amount of Rs. 25,000/ each be given to Sh. Farmood, Sh. Irfan and Ms. Salma and the said amount be released to them in their savings bank account a/c no. 3682776712 in the name of Sh. Farmud Khan, a/c no. 3672840240 in the name of Sh. Irfan and a/c no. 3689222112 in the name of Ms. Salma with Central Bank of India, Shalimar Bagh branch, Delhi as per rules i.e. the branch near his place of residence (as mentioned in statement recorded under clause 29 MCTAP).
An amount of Rs. 1,00,000/ be given to Sh. Farman out of which an amount of Rs. 50,000/ be released to him in his savings bank account a/c no. 3672828868 with Central Bank of India, Shalimar Bagh branch, Delhi i.e. the branch near her place of residence (as mentioned in statement recorded under clause 29 MCTAP) and remaining amount be kept in his name in 12 FDRs of equal amount for a period of one month to 12 months with cumulative interest without the facility of advance, loan and premature withdrawal without the prior permission of the Tribunal.
An amount of Rs. 3,00,000/ each be given to Salman and Subhan who are minor sons of deceased and the said amount be kept in FDRs till they attain the age of majority and after maturity the said amount be released to them in their savings bank account a/c no. 3690055246 in the name of Salman and a/c no. 3690055597 in the name of Subhan with Central Bank of India, Shalimar Bagh branch, Delhi i.e. the branch near her place of residence (as mentioned in statement recorded under clause 29 MCTAP) without the facility of advance, loan and premature withdrawal without the prior permission of the Tribunal.
Remaining amount be given to Smt. Nusrat Jahan who is wife of Nusrat Jahan vs Akhilesh Kumar Page 16 of21 Nusrat Jahan vs Akhilesh Kumar Page 17 of 21 deceased, out of which an amount of Rs. 1,00,000/ be released to her in her savings bank account a/c no. 3682776712 with Central Bank of India, Shalimar Bagh branch, Delhi i.e. the branch near her place of residence (as mentioned in statement recorded under clause 29 MCTAP) and remaining amount be kept in his name in 48 FDRs of equal amount for a period of one month to 48 months with cumulative interest without the facility of advance, loan and premature withdrawal without the prior permission of the Tribunal.
It shall be subject to the following further conditions and directions in terms of order dated 07.12.2018 of Hon'ble Mr. Justice J.R. Midha in case of Rajesh Tyagi vs Jaibir Singh, FAO 842/2003 w.r.t 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 victim i.e. the saving bank account(s) of the claimant(s) shall be individual savings account(s) and not a joint account(s).
(b) The original fixed deposit shall be retained by the bank in safe custody. However, the statement containing FDR number, FDR amount, date of maturity and maturity amount shall be furnished by bank to the claimant(s).
(c) The monthly interest be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant/(s) near the place of their residence.
(d) The maturity amount of the FDR(s) be credited by Electronic Clearing System (ECS) in the saving bank account of the claimant(s) near the place of their residence i.e. above said a/c.
(e) No loan, advance or withdrawal or premature discharge be allowed on the fixed deposits without permission of the court.
(f) The concerned Bank shall not to issue any cheque book and/or 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 Nusrat Jahan vs Akhilesh Kumar Page 17 of21 Nusrat Jahan vs Akhilesh Kumar Page 18 of 21 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 pass book(s) of the claimant(s) is sufficient compliance of clause (g) above.
16. Relief As discussed above, R3/Insurance co is directed to deposit the award amount of Rs.10,97,000/ with interest @ 9% per annum from the date of filing of petition i.e. 30.07.2013 till realization within the jurisdiction of this Tribunal i.e. SBI , Rohini Court Branch, Delhi within 30 days from today under intimation of deposition of the awarded amount to be given by R2/insurance co to the petitioners and their advocates failing which the R2 shall be liable to pay interest @ 12% per annum from the period of delay beyond 30 days.
R3 is also directed to place on record the proof of the award amount, proof of delivery of notice in respect of deposit of the amount in the above said bank to the claimants and complete details in respect of calculations of interest etc in the court within 30 days from today.
A copy of this judgment/award be sent to respondent no. 3 for compliance within the granted time.
Nazir is directed to place a report on record in the event of non receipt/deposit of the compensation amount within the granted time.
A copy of this award be forwarded to the concerned Metropolitan Magistrate and DLSA in terms of the orders passed by the Hon'ble High Court in FAO 842/2003 Rajesh Tyagi Vs. Jaibir Singh & Ors. vide order dated 12.12.2014.
Nusrat Jahan vs Akhilesh Kumar Page 18 of21 Nusrat Jahan vs Akhilesh Kumar Page 19 of 21 In view of the directions contained in order dated 18.01.2018 of Hon'ble Mr. Justice J.R. Midha in FAO no. 842/2003 titled as Rajesh Tyagi vs Jaibir Singh, the joint statement of petitioners was also recorded wherein they stated that they were entitled to exemption from deduction of TDS and that they shall submit form 15G to the insurance co. so that no TDS is deducted.
17. Form IVA which has been duly filled in has also been attached herewith. File be consigned to record room as per rules after compliance of necessary legal formalities. Copy of order be given to parties for necessary compliance as per rules. Insurance co. is directed to obtain the copy of PAN Card of petitioners from the court record.
Digitally signed by AMIT AMIT BANSAL
BANSAL Date:
2019.01.30
17:12:45 +0530
Announced in open court (AMIT BANSAL)
on 30 January 2019 PO MACT N/W
Rohini Courts, Delhi.
Nusrat Jahan vs Akhilesh Kumar Page 19 of21
Nusrat Jahan vs Akhilesh Kumar Page 20 of 21
FORM - IV A
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN DEATH CASES TO BE INCORPORATED IN THE AWARD
1. Date of accident : 18.05.12
2. Name of deceased: Bhure Miya
3. Age of the deceased: 48 years
4. Occupation of the deceased: Self employed
5. Income of the deceased:8775/ per month
6. Name, age and relationship of legal representatives of deceased:
S.No. Name Age Relation
(i) Smt. Nusrat Jahan 50 years Wife
(ii) Sh. Farmud Khan 30 years Son
(iii) Sh. Irfan 29 years Son
(iv) Ms. Salma 25 years Daughter
(v) Sh. Farman 24 years son
(vi) Sh. Salman 17 years Son
(vii) Sh. Subhan 13 years son
Computation of Compensation
S.No. Heads Awarded by the Claims
Tribunal
7. Income of the deceased (A) Rs. 7020/ .
8. AddFuture Prospects (B) 25%= Rs. 1755/
9. LessPersonal expenses of the 1/4
deceased (C )
10. Monthly loss of dependency Rs.6582/
{ (A+B) - C =D}
11. Annual loss of dependency (Dx12) Rs. 78,984/
12. Multiplier (E) 13
13. Total loss of dependency (Dx12xE Rs. 10,26,792/ = F)
14. Medical Expenses (G)
15. Compensation for loss of love and Nil Nusrat Jahan vs Akhilesh Kumar Page 20 of21 Nusrat Jahan vs Akhilesh Kumar Page 21 of 21 affection (H)
16. Compensation for loss of Rs. 40,000/ consortium (I)
17. Compensation for loss of estate (J) Rs. 15,000/
18. Compensation towards funeral Rs. 15,000/ expenses (K)
19. TOTAL COMPENSATION Rs. 10,97,000/ (F+G+H+I+J+K =L)
20. RATE OF INTEREST AWARDED 9% 21 Interest amount up to the date of Rs. 5,43,012/ award (M)
22. Total amount including interest Rs.16,40,012/ (L+M)
23. Award amount released Rs. 2,25,000/ to the petitioners.
24. Award amount kept in FDRs Rs. 14,15,012/
25. Mode of disbursement of the award As per award and in terms amount to the claimant (s) (Clause of clause 29 of MCTAP.
29)
26. Next date for compliance of the 18.03.2019.
award. (Clause 31)
Digitally signed
by AMIT
AMIT BANSAL
BANSAL Date:
2019.01.30
17:12:55 +0530
(AMIT BANSAL)
PO MACT N/W
Rohini Courts, Delhi.
30.01.2019
Nusrat Jahan vs Akhilesh Kumar Page 21 of21