Delhi District Court
Smt. Riki Devi And Ors (Lrs Of Hira Ram) vs Mahinder Kumar on 18 April, 2024
MACP No. 29/18; FIR No. 559/17; PS. Bhalswa Dairy DOD: 18.04.2024
IN THE COURT OF MS. RICHA MANCHANDA, PRESIDING
OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNAL,
NORTH DISTRICT, ROHINI COURTS, DELHI
MAC Petition No. 29/18
UID/CNR No. DLNT01-000556-2018
1. Smt. Rinki Devi,
S/o Late Sh. Hira Ram,
(Widow of deceased)
2. Master Ankush @ Chintu Kumar,
S/o Late Sh. Hira Ram,
(Minor son of deceased)
3. Baby Amrita,
D/o Late Sh. Hira Ram,
(Minor daughter of deceased)
4. Smt. Dhaneshwari Devi,
W/o Sh. Kamindra Ram,
(Mother of deceased)
5. Sh. Kamindra Ram,
S/o Sh. Ramji Ram,
(Father of deceased)
Petitioner no. 1 to 3 R/o. Village Madanpura,
Mararpura, Nalanda,
Bihar.
Petitioner no. 4 & 5 R/o Rahui Block Colony,
Rahui, Nalanda.
..........Petitioners
Rinki Devi & Ors. Vs. Mahender Kumar & Ors. Judge MACT 02(North) Page 1 of 28
MACP No. 29/18; FIR No. 559/17; PS. Bhalswa Dairy DOD: 18.04.2024
VERSUS
1. Sh. Mahender Kumar,
S/o Sh. Mohan Lal,
R/o Village Madhisha,
Atrampur,
PS. Nawab Ganj,
Allahabad,
UP.
(Driver)
2. Sh. Abhishek Rai,
S/o Sh. Devender Nath Rai,
R/o H.No. 88,
Suraj Apartment,
Prahladpur,
Delhi.
(Registered owner)
3. New India Assurance Co. Ltd.
22, Mother House,
2nd Floor, Yusuf Sarai Commercial Complex,
Delhi.
(Insurer) ............Respondents
Date of Institution : 16.01.2018
Date of Arguments : 18.04.2024
Date of Judgment : 18.04.2024
APPEARENCE(S):
Sh. Ashok Sharma, Ld. Counsel for petitioners no. 1 to 3. Sh. Amir Mohammad, Ld. Counsel for petitioners no. 4 & 5. Ms. Meena M Gupta, Ld. Counsel for driver and owner.
Sh. Lalit Dhingra, Ld. Counsel for insurance company.
Rinki Devi & Ors. Vs. Mahender Kumar & Ors. Judge MACT 02(North) Page 2 of 28MACP No. 29/18; FIR No. 559/17; PS. Bhalswa Dairy DOD: 18.04.2024 Petition under Section 166 & 140 of M.V. Act, 1988 for grant of compensation AWARD
1. By way of present judgment/award, I shall dispose of the DAR filed by the investigating agency which has been converted into a claim petition under section 166(4) of M. V. Act 1988 for grant of compensation to the petitioners who are Lrs of deceased victim namely Sh. Hira Ram, aged about 26 years in the road accident on 08.10.2017 at 4:15 AM in front of CNG Pump Station, ahead of Libaspur Bus Stand, near Delhi Bypass, involving vehicle i.e. Trailer bearing registration no. HR55K-5169 (alleged offending vehicle) being driven in a rash and negligent manner by its driver (Respondent no.1 herein).
2. The concise material facts relevant to decide the present claim are that on 08.10.2017 at 3:30 AM, deceased Sh. Hira Ram was going to Noida from Reliance Ware House, Sonepat, Haryana in his vehicle no. HR55E-9984 after loading vegetables etc in it and he was driving his vehicle at moderate speed. At about 4:15 am, when the deceased reached in front of CNG Pump Station, ahead of Libaspur Bus Stand, near Delhi Bypass, one Trailer bearing registration no. HR55K-5169(offending vehicle) which was being driven by its driver ahead of his vehicle, suddenly applied the brakes, without giving any prior indication, due to which, the vehicle of the deceased struck against the offending vehicle. Thereafter, deceased was immediately Rinki Devi & Ors. Vs. Mahender Kumar & Ors. Judge MACT 02(North) Page 3 of 28 MACP No. 29/18; FIR No. 559/17; PS. Bhalswa Dairy DOD: 18.04.2024 taken to BJRM Hospital, Jahangir Puri, Delhi, where he died during the course of treatment on 12.10.2017. Postmortem of the deceased was conducted at Maulana Azad Medical College & Lok Nayak Hospital, Delhi vide PM No. 904/17. A case U/s 279/337A IPC was registered at PS. Bhalswa Dairy vide FIR No. 559/17 with regard to the accident in question. The petitioners have claimed that the accident has taken place due to rash and negligent driving of aforementioned offending vehicle which was allegedly being driven by respondent no.1/driver. The offending vehicle was found to be owned by respondent no. 2 and was duly insured with respondent no. 3/New India Assurance Co. Ltd., at the time of accident in question.
3. In their joint written statement, the respondent no.1 & 2 i.e. driver and registered owner have claimed that alleged accident was not caused by the respondent no. 1 from his vehicle and the same has been caused by some other vehicle. It has been further claimed that respondent no. 1 was having valid and effective driving licence at the time of accident. It has also been claimed that alleged offending vehicle was insured with respondent no. 3 at the time of accident and thus, they are not liable to pay any compensation to the petitioners.
4. In its Written Statement, the respondent no. 3 i.e. insurance company has not raised any statutory defence as provided in Section 149(2) of M.V. Act. It has been claimed that present claim petition is bad on account Rinki Devi & Ors. Vs. Mahender Kumar & Ors. Judge MACT 02(North) Page 4 of 28 MACP No. 29/18; FIR No. 559/17; PS. Bhalswa Dairy DOD: 18.04.2024 of mis-joinder and non-joinder of necessary parties as the deceased was driver of the vehicle bearing no. HR55E-9984, under the employment of RG Logistics India Pvt. Ltd and the same was insured with HDFC Ergo General Insurance Co. Ltd and the owner and insurer of the said vehicle were not made parties in the present claim petition and thus, the present claim petition is liable to be dismissed. It has been also claimed that offending vehicle was insured in the name of Mr. Kuber Nath Rai and later on, it was transferred in the name of Sh. Abhishek Rai w.e.f. 12.10.2017 to 15.03.2018. On merits, it has denied the averments made in the DAR petition and prayed for its dismissal.
5. From the pleadings of the parties and the documents, following issues were framed vide order dated 21.07.2018:-
1) Whether the deceased Heera Ram suffered fatal injuries in road traffic accident on 08.10.2017 at about 4:15 am, at Libas Pur Bus Stand, near CNG Petrol Pump, Delhi, within the jurisdiction of PS. Bhalswa Dairy due to rashness and negligence on the part of driver Mahender Kumar who was driving vehicle bearing registration no. HR55K-5169, owned by Abhishek Rai and insured with The New India Assurance Co. Ltd.?OPP.
2) Whether the LRs of deceased are entitled to any compensation if so to what amount and from whom?
OPP.
3) Relief.
Rinki Devi & Ors. Vs. Mahender Kumar & Ors. Judge MACT 02(North) Page 5 of 28
MACP No. 29/18; FIR No. 559/17; PS. Bhalswa Dairy DOD: 18.04.2024
6. To substantiate their claim, petitioners have examined two witnesses i.e. Smt. Rinki Devi (widow of deceased) as PW-1 and Smt. Dhaneshwari Devi(mother of deceased) as PW-2 and closed their evidence on 02.09.2021. PW-1 & PW-2 deposed on the lines of averments made in the DAR, resulting into fatal injury causing death of the deceased. In defence, the respondent no. 1 i.e. driver has examined himself as R1W1 and respondent no. 3 i.e. insurance company has examined its official Sh. Sandeep Prashad as R3W1 and their respective evidence was closed vide order dated 17.03.2023.
7. This Tribunal has carefully perused DAR, evidence led by petitioners has been duly appreciated. All documents and material relied upon perused and considered. Arguments addressed by counsels for the petitioners and insurance company considered. Legal position, both statutory and binding applicable precedents, has been appreciated. The issue wise determination is as under:-
ISSUE NO. 18. The onus to prove, the aforesaid issue was placed on the petitioners. To prove the said issue, petitioner no. 1 Smt. Rinki Devi and Smt. Dhaneshwari Devi (widow and mother of deceased) examined themselves as PW-1 & PW-2 respectively. They both have deposed on the identical lines of Rinki Devi & Ors. Vs. Mahender Kumar & Ors. Judge MACT 02(North) Page 6 of 28 MACP No. 29/18; FIR No. 559/17; PS. Bhalswa Dairy DOD: 18.04.2024 DAR petition to the effect that on 08.10.2017 at 3:30 AM, deceased Sh. Hira Ram was going to Noida in his vehicle no. HR55E-9984 and at about 4:15 am, when the deceased reached in front of CNG Pump Station, ahead of Libaspur Bus Stand, near Delhi Bypass, one Trailer bearing registration no. HR55K-5169(offending vehicle) which was being driven by its driver ahead of his vehicle, suddenly applied the brakes, without giving any prior indication, due to which, the vehicle of the deceased struck against the offending vehicle. They further deposed that thereafter, deceased was immediately taken to BJRM Hospital, Jahangir Puri, Delhi, where he died during the course of treatment on 12.10.2017 and postmortem of the deceased was conducted at Maulana Azad Medical College & Lok Nayak Hospital, Delhi. They both have claimed that the accident has taken place due to rash and negligent driving of aforementioned offending vehicle which was allegedly being driven by respondent no.1/driver.
9. PW-1 has relied upon the following documents:-
S.No. Description of documents Remarks
1. Copy of her Aadhaar Card Ex PW1/1
2. DAR Mark PW1/2(colly)
3. Copy of Aadhaar Card of deceased Ex. PW1/3
10. PW-2 has relied upon copy of Aadhaar Card of herself and her husband and exhibited the same as Ex. PW2/1(colly) Rinki Devi & Ors. Vs. Mahender Kumar & Ors. Judge MACT 02(North) Page 7 of 28 MACP No. 29/18; FIR No. 559/17; PS. Bhalswa Dairy DOD: 18.04.2024
11. The aforesaid witnesses i.e. PW-1 & PW-2 were not cross- examined by the Ld. Counsel for respondents on the aspect of issue under consideration.
12. During the arguments, Ld. Counsel for petitioners heavily relied upon criminal case record (which is part of DAR Ex. PW1/2 colly) in support of case of petitioners in order to bring home that the accident in question had taken place due to the rash and negligent driving of offending vehicle i.e. Trailer bearing Registration No. HR55K-5169, by its driver/respondent no. 1. It has been contended that respondent no. 1 Sh. Mahendra Kumar was also chargesheeted by police for offences punishable U/s 279/304A IPC & 134/187 M.V. Act, which clearly establishes that the accident had taken place due to rash and negligent driving of offending vehicle by respondent no. 1. Per contra, it is contended on behalf of insurance company that PW1 & PW2 are not an eyewitness of the accident, as such their testimonies should not be considered on this issue. It is further counter argued that the accident in question occurred due to sole negligence of the deceased as he was driving his vehicle in a rash and negligent manner and hit the alleged offending vehicle from the back side.
13. No doubt, the respondent no.1 has examined himself as R1W1. He deposed that at the time of accident, he was having valid driving licence and exhibited the same as Ex. DW1/1. He further deposed that on 08.10.2017, deceased Hira Ram got injured by some other vehicle and at that Rinki Devi & Ors. Vs. Mahender Kumar & Ors. Judge MACT 02(North) Page 8 of 28 MACP No. 29/18; FIR No. 559/17; PS. Bhalswa Dairy DOD: 18.04.2024 time, he was passing through the alleged accident spot in vehicle bearing no. HR55K-5169 and the deceased had given a false statement against him and trapped him falsely in the present case. He further deposed that he was having valid permit, fitness certificate and insurance policy of the alleged offending vehicle at the time of accident and exhibited the same as Ex. DW1/2 to Ex. DW1/4 respectively. During his cross-examination on behalf of petitioners, he deposed that he did not know the deceased prior to the accident. He further deposed that he did not have enmity either with deceased or police officials. He further deposed that he did not make any representation to the higher police officials or any other higher authority against his false implication in the matter. He denied the suggestion that the accident had taken place because of his rashness and negligence in driving the offending vehicle. During his cross-examination on behalf of insurance company, he deposed that on the date of accident, he was driving the offending vehicle on the directions of owner Abhishek.
14. Ld. Counsel for the respondents no. 1 & 2 vehemently argued that the petitioner has failed to prove negligence on the part of respondent no. 1 in causing the accident. For this purpose, he heavily relied upon the testimony of R1W1 as discussed above. On the other hand, Ld. counsel for petitioners argued that the testimony of R1W1 should not be believed as he himself was driving the offending vehicle at the time of accident. He further submitted that FIR was registered against respondent no. 1.
Rinki Devi & Ors. Vs. Mahender Kumar & Ors. Judge MACT 02(North) Page 9 of 28MACP No. 29/18; FIR No. 559/17; PS. Bhalswa Dairy DOD: 18.04.2024
15. It may be noted that respondent no. 1 i.e. R1W1 has simply deposed that he did not cause the accident in question and some other vehicle had caused the accident but his testimony does not inspire confidence at all as FIR No. 559/09 u/s 279/337 IPC was registered at PS. Bhalswa Dairy with regard to accident in question on the statement of deceased himself on the date of accident itself i.e. 08.10.2017 who clearly mentioned the police official that the accident was caused due to rash and negligent driving of aforesaid Trailer by respondent no. 1 at the time of recording of his statement. Thus, there is no possibility of any false implication of driver of offending vehicle or false involvement of the offending vehicle in this case. The contents of said FIR would show that deceased therein has disclosed the same sequence of facts leading to the accident, as deposed by PW1 & PW2 during the course of inquiry. Even the respondent no. 1 had admitted in his cross-examination that deceased was not known to him prior to the accident. So, there was no point of petitioner falsely implicating the respondent no. 1 in the present case. It is quite obvious that respondent no. 1/R1W1 has taken the aforesaid plea in order to escape from the penal consequences as criminal case is pending trial against him for causing the accident.
16. The facts of the case, arguments of the Ld. Counsels, evidence, and material on record have been carefully examined and scrutinized. Respondent no. 1 namely Mahendra Kumar has been charge sheeted for the offences punishable U/s 279/304A IPC & 134/187 M.V. Act by the Rinki Devi & Ors. Vs. Mahender Kumar & Ors. Judge MACT 02(North) Page 10 of 28 MACP No. 29/18; FIR No. 559/17; PS. Bhalswa Dairy DOD: 18.04.2024 investigating agency after arriving at the conclusion on the basis of investigation carried out by it that the accident in question has taken place due to rash and negligent driving of offending vehicle.
17. Copy of MLC of deceased filed would show that after the accident, he was taken to BJRM Hospital, Jahangir Puri, Delhi with alleged history of RTA on 08.10.2017. He is shown to have sustained multiple injuries as mentioned therein. Not only this, postmortem was got conducted on the body of deceased Sh. Hira Ram. The copy of PM Report (which is part of DAR) of deceased, would show that cause of death of deceased was opined due to fat embolism leading to brain damage consequent upon blunt force trauma to both lower limbs. All the injuries were ante-mortem in nature, consistent with being about four days in duration and were caused by blunt force trauma and were possible in road traffic accident. The external injuries as mentioned in the relevant column correspond with the injuries which occur in Motor Vehicular Accident. These documents have not been disputed from the side of respondents.
18. Further, copy of mechanical inspection report dated 27.10.2017 (which is also part of DAR) of Trailer No. HR55K-5169, would show fresh damages i.e. its rear side body steel angle was scratched; its rear side safety rod was damaged and its both headlights were missing. Likewise, copy of mechanical inspection report dated 27.10.2017 (which is also part of DAR) Rinki Devi & Ors. Vs. Mahender Kumar & Ors. Judge MACT 02(North) Page 11 of 28 MACP No. 29/18; FIR No. 559/17; PS. Bhalswa Dairy DOD: 18.04.2024 of Truck bearing no. HR55E-9984 of victim, would show that its front side body, driver cabin and both headlights were damaged; its dashboard and electric wiring was damaged; its steering bracket was damaged and its steering wheel was bended; its clutch and brake pedal bracket were bended and its pedal system was damaged; its steering pull and push rod was dislocated; its grill radiator was damaged and engine system was damaged; its gear shift lever system was damaged and its front side both wheel suspension system was damaged. These documents have not been disputed by the respondents and corroborate the fact that the driver of the offending vehicle suddenly applied the brakes, due to which the vehicle of victim struck against the offending vehicle from behind.
19. In view of the aforesaid discussion and the evidence which has come on record, it is held that the petitioners have been able to prove on the basis of preponderence of probabilities that Sh. Hari Ram had sustained fatal injuries in road accident which took place on 08.10.2017 at 4:15 AM in front of CNG Pump Station, ahead of Libaspur Bus Stand, near Delhi Bypass, due to rash and negligent driving of Trailer bearing registration no. HR55K-5169 by respondent no.1. Thus, issue no. 1 is decided in favour of petitioners and against the respondents.
ISSUE NO. 220. The petitioners who are claimants are the widow, minor children and parents of deceased. It is evident that the petitioners have actually Rinki Devi & Ors. Vs. Mahender Kumar & Ors. Judge MACT 02(North) Page 12 of 28 MACP No. 29/18; FIR No. 559/17; PS. Bhalswa Dairy DOD: 18.04.2024 suffered monetary loss and mental agony due to death of deceased. Accordingly, petitioners are entitled for just and fair compensation in the present case.
21. Section 168 of the Motor Vehicle Act 1988 enjoins upon the Claims Tribunal to hold an inquiry into the claim to make an award determining the amount of compensation which appears to it to be just and reasonable. The guiding principles for assessment of "just and reasonable compensation" in fatal case has been laid down by Hon'ble Supreme Court of India, in case titled as Smt. Anjali & Ors., Vs. Lokendra Rathod & Ors, in Civil Appeal No. 9014 of 202, decided on 06.12.2022 that: -
"The provisions of the Motor Vehicles Act, 1988 (for short, "MV Act") gives paramount importance to the concept of 'just and fair' compensation. It is a beneficial legislation which has been framed with the object of providing relief to the victims or their families. Section 168 of the MV Act deals with the concept of 'just compensation' which ought to be determined on the foundation of fairness, reasonableness and equitability. Although such determination can never be arithmetically exact or perfect, an endeavor should be made by the Court to award just and fair compensation irrespective of the amount claimed by the applicant/s. In Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr.3, this Court has laid down as under:Rinki Devi & Ors. Vs. Mahender Kumar & Ors. Judge MACT 02(North) Page 13 of 28
MACP No. 29/18; FIR No. 559/17; PS. Bhalswa Dairy DOD: 18.04.2024 "16."Just compensation" is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well settled principles relating to award of compensation. It is not intended to be a bonanza, largesse or source of profit."
22. The Hon'ble Apex Court has held that the compensation should be just and is not expected to be a windfall or a bonanza nor it should be niggardly or a pittance. Reliance is placed on 2012 (8) SLT 676 titled K. Suresh Vs. New India Assurance Co. Ltd. The aforesaid Principle of law has also been reiterated by a landmark judgment of the Hon'ble Supreme court in 2017 (13) SCALE 12 : 2017 XI AD (SC) 113 titled National Insurance Co. Ltd. Vs. Pranay Sethi and Ors. Accordingly, the quantum of appropriate and adequate compensation to the victim of road accident is to be derived after assessment of various relevant parameters, as per law. Hereinafter, assessment is divided into several criteria, as applicable to the facts of the present case.
LOSS OF DEPENDENCY
23. The claimants/petitioners are the widow, minor children and parents of deceased. PW1 Smt. Rinki Devi (widow of deceased) has deposed in her evidence by way of affidavit Ex. PW1/A that deceased was working as Rinki Devi & Ors. Vs. Mahender Kumar & Ors. Judge MACT 02(North) Page 14 of 28 MACP No. 29/18; FIR No. 559/17; PS. Bhalswa Dairy DOD: 18.04.2024 Truck driver with L-G Logistic Reliance, situated at 401, Rai, Sonepat, Haryana and was getting monthly salary of Rs. 20,000/-. She further deposed that deceased was having driving licence of heavy vehicle. She further deposed that deceased was the only earning member in his family and all the petitioners were financially dependent upon the income of deceased at the time of accident.
24. During cross-examination of PW1 (widow of deceased) on behalf of driver and owner, she deposed that she had been residing at Village Rai, Sonepat from the last ten years with her husband/deceased. She further deposed that at the time of accident, deceased was working with Reliance Company at Village Rai as a truck driver. She further deposed that she did not know whether any document as proof of the employment of deceased was placed on record or not. She further deposed that she had not placed on record any document regarding the income of deceased. She denied the suggestion that deceased was not the employee of the company LG Logistic Reliance situated at 401, Rai, Sonepat, Haryana. She further denied the suggestion that deceased was not getting the salary of Rs. 20,000/- per month from the said company. She further deposed that her father in law and mother in law were residing separately in a village Madanpura, District Nalanda Bihar. She admitted that her father in law had been running a business of kabadi (scrap dealer) in the said village. She further admitted that they were residing separately in the village. She deposed that she did not know the age Rinki Devi & Ors. Vs. Mahender Kumar & Ors. Judge MACT 02(North) Page 15 of 28 MACP No. 29/18; FIR No. 559/17; PS. Bhalswa Dairy DOD: 18.04.2024 of deceased. She denied the suggestion that she was gainfully employed. During her cross-examination on behalf of insurance company, she deposed that she did not have any document to show that she was residing at Rai Village. She further deposed that she did not know the date of birth of her daugther Amrita though she was having the Aadhaar Card on which the name of father Sh. Hari Ram and address of Marupura, Nalanda, Bihar was mentioned and she exhibited the same as Ex. R3X/1. She deposed that their family was not beneficiary of ESI. She denied the suggestion that neither deceased was driver nor working with LG Logistic Reliance. She further denied the suggestion that they had not incurred a sum of Rs. 1 lakh on funeral exprenses. She deposed that deceased was having driving licence. She further deposed that at that time, she was residing with her brother and not remarried and children of deceased were residing at Sonepat.
25. PW2 Smt. Dhaneshwari (mother of deceased) has deposed in her evidence by way of affidavit Ex. PW2/A that deceased was working as Truck driver and earning Rs. 20,000/- per month at the time of accident. She further deposed that deceased was having valid and effective driving licence at the time of accident. She further deposed that all the petitioners were financially dependent upon the income of deceased at the time of accident.
26. During cross-examination of PW2 (mother of deceased) on behalf of insurance company, she deposed that she was having two sons and two daughters and her both the daughters were married. She further deposed Rinki Devi & Ors. Vs. Mahender Kumar & Ors. Judge MACT 02(North) Page 16 of 28 MACP No. 29/18; FIR No. 559/17; PS. Bhalswa Dairy DOD: 18.04.2024 that her one son Hari Ram had expired and second son was Moti who was residing with them in Bihar. She deposed that Moti was unmarried and 16 years old at that time. She denied the suggestion that she was not financially dependent upon the income of deceased. She further denied the suggestion that she had not spent Rs. 50,000/- on the last rites. She further deposed that she did not have any document to show that deceased was earning Rs. 20,000/- per month. She deposed that Rinki was not residing with her permanently and she used to come occasionally in Bihar. She further deposed that she had not filed any document to show the educational qualification of deceased. During her cross-examination on behalf of driver and owner, she deposed that her husband was doing the business of scrap. She volunteered that after the surgery of her husband, he was not able to do said work. She admitted that she herself, her husband and her minor son, were residing separately in Village Madanpura, District Nalanda, Bihar. She further denied the suggestion that deceased was not sending the money to them. She deposed that she had not placed on record any document to show that deceased used to send money to her. She volunteered that she had brought her passbook in which deceased used to send the money to them.
27. During the course of arguments, Ld. counsel for petitioners fairly conceded that for want of any cogent and definite evidence being led by petitioners regarding monthly income of deceased, his income may be considered as per Minimum Wages Act applicable in the State of Haryana in Rinki Devi & Ors. Vs. Mahender Kumar & Ors. Judge MACT 02(North) Page 17 of 28 MACP No. 29/18; FIR No. 559/17; PS. Bhalswa Dairy DOD: 18.04.2024 order to calculate the loss of dependency. It is contended that the deceased was working for gain in Haryana at the relevant time. He has further prayed that future prospects be also awarded to the petitioners as he had promising future.
28. As already noted above, PW1 & PW2, who are widow and mother of deceased deposed in their respective evidence that deceased was working as driver in Haryana and earning Rs. 20,000/- per month at the time of accident. However, they have not filed any documentary evidence in this regard. Petitioners have placed on record copies of Vaccination Cards (which are part of DAR) of both the children of deceased at the time of filing of DAR and the same were duly verified by the IO of the case. A bare perusal of said vaccination cards reveals that the address of deceased mentioned therein is of Rai, Haryana. It is pertinent to mention here that in the copy of vaccination card of daughter of deceased namely Amrita, last vaccination was given to her on 25.07.2017. The date of accident in the present matter is 08.10.2017 and the last vaccination given to the daughter of deceased was on 25.07.2017, which clearly shows that deceased was residing in Rai, Haryana at the time of accident. However, for want of cogent and definite evidence being led by petitioners with regard to actual monthly income of deceased, his notional monthly income is being taken as equivalent to that of a skilled person under Minimum Wages Act applicable in the State of Haryana during the relevant period as the petitioners have filed copy of DL(which is part of Rinki Devi & Ors. Vs. Mahender Kumar & Ors. Judge MACT 02(North) Page 18 of 28 MACP No. 29/18; FIR No. 559/17; PS. Bhalswa Dairy DOD: 18.04.2024 DAR) of deceased which clearly shows that the same was issued to deceased for driving the heavy transport vehicle. The minimum wages of a skilled person were Rs. 9,518.49p per month as on the date of accident which is 08.10.2017.
29. As per the case of petitioners, deceased Sh. Hira Ram was aged about 26 years at the time of accident. It is pertinent to note that petitioners have relied upon copy of Aadhaar Card (Ex. PW1/3) of deceased wherein his date of birth is mentioned as 01.02.1994. The petitioners have also filed the copy of driving licence(which is also part of DAR) of deceased wherein his date of birth is mentioned as 01.02.1991. Considering the fact that petitioners themselves claimed that deceased was aged about 26 years at the time of accident, the age of deceased is taken as 26 years as on the date of accident. Hence, the multiplier of 17 would be applicable in view of pronouncement made by Constitutional Bench of Apex Court in the case titled as "Sarla Verma Vs. DTC" 2009 ACJ 1298 SC.
30. Considering the age of deceased and the fact that he was not having permanent job at that time, future prospects @ 40% has to be awarded in favour of petitioners in view of pronouncement made by Constitutional Bench of Apex Court in the case titled as "National Insurance Company Ltd. Vs. Pranay Sethi & Ors." Civil Appeal No. 6961/2015 decided on 31.10.2017, as well as in view of decision of Hon'ble High Court of Delhi in Rinki Devi & Ors. Vs. Mahender Kumar & Ors. Judge MACT 02(North) Page 19 of 28 MACP No. 29/18; FIR No. 559/17; PS. Bhalswa Dairy DOD: 18.04.2024 appeal bearing MAC APP No. 798/2011 titled as "Bajaj Allianz General Insurance Company Ltd. Vs. Pooja & Ors", decided on 02.11.17.
31. PW1 & PW2 has categorically deposed in their respective evidence by way of affidavits (Ex. PW1/A & Ex. PW2/A) that all the petitioners were fully dependent upon the income of deceased. Ld. Counsel for respondents argued that father of deceased was not dependent upon the deceased at the time of accident as he was running his own scrap business. It is relevant to mention here that respondents have failed to prove the said fact by any cogent evidence in this regard. It is pertinent to mention here that PW2 has clarified during her cross-examination that father of deceased was not doing his business after his surgery. Said part of his testimony remained unchallenged and uncontroverted from the side of respondents. Further, though PW1 has stated that her father in law had been running a business of scrap dealer, however, admittedly, they were residing separately as father in law was in Bihar, whereas PW1 was residing with the deceased in Haryana. Therefore, the best witness to this fact is PW2 i.e. mother of deceased who has stated that after the surgery, her husband had stopped the said business. Further, no evidence in rebuttal has been led by respondents during the course of inquiry. Considering all these facts and circumstances, it is held that there were five dependents upon the deceased i.e. widow, two minor children and parents of deceased at the time of accident and there has to be deduction of one fourth as held in the case of Sarla Verma mentioned supra.
Rinki Devi & Ors. Vs. Mahender Kumar & Ors. Judge MACT 02(North) Page 20 of 28MACP No. 29/18; FIR No. 559/17; PS. Bhalswa Dairy DOD: 18.04.2024 Thus, the total loss of dependency would come out to Rs. 20,38,860.55 (Rs.9,518.49p X 3/4 X 140/100 X 12 X 17). Hence, a sum of Rs. 20,39,000/- (rounded off) is awarded under this head in favour of the petitioners.
LOSS OF LOVE & AFFECTION
32. Now considering the prayer of petitioners for grant of compensation on account of "Loss of Love & Affection" the binding legal position has been laid down by the celebrated judgment of Pranay Sethi's case (supra) and recent judgment titled New India Assurance Company Limited V. Somwati & Ors., Civil Appeal no. 3093 of 2020 dated 07.09.2020 of Supreme Court of India wherein it has been held that the petitioners are not entitled to be compensated under this head. Further, the Hon'ble High Court of Delhi in appeal titled as Pooja's case (supra), has been pleased to observe in para 18 of the judgment that the constitution bench decision in Pranay Sethi's case (supra) does not recognize any other non-pecuniary head of damages. Hence, no amount of compensation is being awarded under this head.
LOSS OF CONSORTIUM
33. In view of the judgment of Hon'ble Supreme Court of India in case titled as, Pranay Sethi case (supra), the Tribunal considers that both the petitioners i.e. parents of deceased are entitled for payment of Rs. 40,000/- each towards "loss of consortium". By way of pronouncement of Pranay Rinki Devi & Ors. Vs. Mahender Kumar & Ors. Judge MACT 02(North) Page 21 of 28 MACP No. 29/18; FIR No. 559/17; PS. Bhalswa Dairy DOD: 18.04.2024 Sethi case (supra), the Hon'ble Supreme Court of India has been pleased to hold that there shall be an increase of 10% on account of 'inflation' after a period of three years. Applying, the afore-cited binding law the The Hon'ble High Court of Delhi in National Insurance Co. Ltd. Ltd. V. LR's of Sukhbir Singh, MAC. APP. 518/2013 vide judgment pronounced on 13.07.2023 has been pleased to direct the entitlement of dependents to 10% increase under this head, though, the date of accident was of 2011 and the date of impugned award was of 2013. Accordingly, all the petitioners are entitled to a sum of Rs. 44,000/- (40,000+10%) each towards "loss of consortium".
LOSS OF ESTATE & FUNERAL EXPENSES
34. In view of the facts and circumstances of the present case and in view of decision of Hon'ble Apex Court in the case of Pranay Sethi (supra) which has been re-enforced in LR's of Sukhbir Singh (supra), the Tribunal considers that both the petitioners are also entitled for payment of Rs. 16,500/- (15,000+10%) on account of "loss of estate" and for equal payment of Rs. 16,500/- (15,000+10%) towards "funeral expenses".
35. Therefore, on the basis of the above discussion, the compensation is quantified as below:
1. Loss of dependency Rs. 20,39,000/-
2. Loss of Consortium Rs. 2,20,000/-
3. Loss of Estate & Funeral Rs. 33,000/-Rinki Devi & Ors. Vs. Mahender Kumar & Ors. Judge MACT 02(North) Page 22 of 28
MACP No. 29/18; FIR No. 559/17; PS. Bhalswa Dairy DOD: 18.04.2024 Expenses Total Rs. 22,92,000/-
36. Now, the question which arises for determination is as to which of the respondents is liable to pay the compensation amount. Ld. Counsel for insurance company argued that the offending vehicle was not having valid permit at the time of accident. Per contra, Ld counsel for registered owner/insured vehemently argued that there was valid and effective permit at the time of accident and thus, insurance company is liable to pay the compensation amount to the petitioners. She therefore, urged that no liability should be fastened upon insured to pay the compensation amount. As noted above, the respondent no. 2 has examined one witness i.e. R1W1 Sh. Mahender Kumar(respondent no. 1/driver herein). In his evidence, he produced the computerized copy of permit record of offending vehicle and exhibited the copy of the same as Ex. DW1/2. On the other hand, insurance company has examined one witness i.e. R3W1 Sh. Sandeep Prashad, Transport Inspector, RTO, Gurugram, Haryana.
37. R3W1 is the most relevant witness for the purpose of deciding the present issue. He produced the relevant record in respect of permit of offending vehicle. A bare perusal of record Ex. R3W1/2(colly) produced by aforesaid witness reveals that permit of offending vehicle was valid as on the Rinki Devi & Ors. Vs. Mahender Kumar & Ors. Judge MACT 02(North) Page 23 of 28 MACP No. 29/18; FIR No. 559/17; PS. Bhalswa Dairy DOD: 18.04.2024 date of accident. In view of the above, it is held that the insurance company has failed to prove that there was a fundamental breach in the terms and conditions of insurance policy on the part of insured or that it is entitled to recovery rights against the insured. Consequently, it is held that insurance company is liable to pay the compensation amount so determined herein above, to the petitioners. Issue no. 2 is decided accordingly.
ISSUE NO. 3 RELIEF
38. In view of my finding on issues no. 1 & 2, I award a sum of Rs. 22,92,000/- (including interim award amount, if any) alongwith interest @ 7.5% per annum w.e.f date of filing the claim petition i.e. 16.01.2018 till the date of its realization, in favour of Lrs of deceased/petitioners and against the respondents. (Reliance placed on United India Insurance Co. Ltd. V. Baby Raksha & Ors, MAC APP. No. 36/2023 passed by Hon'ble Delhi High Court on 21.04.2023).
APPORTIONMENT
39. Statement of petitioners were recorded on 28.04.2023 and 02.06.2023 in compliance of directions of Hon'ble High Court of Delhi in FAO No. 842/2023 in case titled Rajesh Tyagi & Ors. V. Jaibir Singh & Ors., decided on 08.01.2021 as per clause 29 of MCTAP. It is pertinent to mention here that as per the vaccination cards of petitioner no. 2 & 3, the date of birth of petitioner no. 2 Master Ankush @ Chintu Kumar was 25.06.2013, Rinki Devi & Ors. Vs. Mahender Kumar & Ors. Judge MACT 02(North) Page 24 of 28 MACP No. 29/18; FIR No. 559/17; PS. Bhalswa Dairy DOD: 18.04.2024 whereas date of birth of petitioner no. 3 Baby Amrita was 14.10.2016. In view of their statements and keeping in view the facts and circumstances of the case, it is hereby ordered that out of the awarded amount along with proportionate interest; the petitioner no. 1 namely Smt. Rinki Devi (widow of deceased) shall be entitled to share amount of Rs. 6,00,000/- (Rupees Six Lakhs Only) alongwith proportionate interest, the petitioner no. 2 Master Ankush @ Chintu Kumar and petitioner no. 3 Baby Amrita (minor children of deceased) shall be entitled to share amount of Rs. 5,00,000/- each (Rupees Five Lakhs Only) alongwith proportionate interest, petitioner no. 4 Smt. Dhaneshwari Devi (mother of deceased) shall be entitled to share amount of Rs. 3,92,000/-(Rupees Three Lakhs and Ninety Two Thousand Only) alongwith proportionate interest and petitioner no. 5 Sh. Kamindra Ram shall be entitled to share amount of Rs. 3,00,000/-(Rupees Three Lakhs Only) alongwith proportionate interest.
40. Out of share amount of petitioner no. 1, a sum of Rs. 2,00,000/- (Rupees Two Lakhs Only) is directed to be immediately released to her through her bank account no. 50420375312 with Indian Bank Allahabad, Main G.T Road, VPO Rai, Sonipat, Haryana, having IFSC Code IDIB000R512 and remaining amount is directed to be kept in the form of FDRs in the multiples of Rs. 20,000/- for one month, two months, three months and so on and so forth, having cumulative interest, for each of the petitioners.
Rinki Devi & Ors. Vs. Mahender Kumar & Ors. Judge MACT 02(North) Page 25 of 28MACP No. 29/18; FIR No. 559/17; PS. Bhalswa Dairy DOD: 18.04.2024
41. The entire respective share amounts alongwith proportionate interest of petitioner no. 2 & 3 be kept in FDR for the period till they attain the age of majority and thereafter, their entire respective share amounts be released to them after moving an appropriate application in this regard before this Tribunal. The said petitioners are at liberty to withdraw their monthly interest in order to meet their educational expenses through their mother/natural guardian.
42. The entire respective share amounts of petitioners no. 4 & 5 be immediately released to them through their respective bank accounts, as per rules.
43. All the FDRs to be prepared as per aforesaid directions, shall be subject to the following conditions:-
(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.
Rinki Devi & Ors. Vs. Mahender Kumar & Ors. Judge MACT 02(North) Page 26 of 28MACP No. 29/18; FIR No. 559/17; PS. Bhalswa Dairy DOD: 18.04.2024
(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 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 disbursement of the award amount.
(g) The bank shall make an endorsement on the passbook of the claimant(s) to the effect that no cheque book and/or debit card have been issued and shall not be issued without the permission of the Court and claimant(s) shall produce the passbook with the necessary endorsement before the Court on the next date fixed for compliance.
(h) It is clarified that the endorsement made by the bank alongwith the duly signed and stamped by the bank official on the passbook(s) of the claimant(s) is sufficient compliance of clause(g) above.
(i) The petitioner is directed to open a Motor Accident Claims Annuity (Term) Deposit Account (MACAD) in terms of order dated 07.12.2018 of Hon'ble Justice J.R. Midha in case titled as Rajesh Tyagi and Others Vs. Jaibir Singh and Others F.A.O No. 842/03 as per clause 31 of MCTAP and form VIII titled as Motor Accident Claims Annuity Deposit (MACAD) Scheme as directed in the said order.
(j) Concerned Manager, SBI, Rohini Court branch is further directed to disburse the FD amount in Motor Accident Claims Annuity Deposit (MACAD) Scheme account as directed by Hon'ble Delhi High Court vide order dated 07.12.18, on completing necessary formalities as per rules.
Rinki Devi & Ors. Vs. Mahender Kumar & Ors. Judge MACT 02(North) Page 27 of 28MACP No. 29/18; FIR No. 559/17; PS. Bhalswa Dairy DOD: 18.04.2024
44. Respondent no. 3/The New India Assurance Co. Ltd., is directed to deposit the award amount with SBI, Rohini Courts branch within 30 days as per above order, failing which insurance company shall be liable to pay interest @ 12% p.a for the period of delay. Concerned Manager, SBI, Rohini Court Branch is directed to transfer the respective share amounts immediately to aforesaid petitioners in their respective bank accounts, on completing necessary formalities as per rules. He be 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 award amount starts earning interest from the date of clearance of the cheques. Copy of the award be given dasti to the petitioners and also to counsel for the insurance company for compliance. Copy of this award alongwith one photograph each, specimen signatures, copy of bank passbooks and copy of residence proof of the petitioners, be sent to Nodal Officer of SBI, Rohini Court, Branch, Delhi for information and necessary compliance. Form XV & Form XVII in terms of MCTAP are annexed herewith as Annexure-A. Copy of order be also sent to concerned M.M and DLSA as per clause 31 and 32 of MCTAP.
Digitally signed by RICHA RICHA MANCHANDA
Announced in the open MANCHANDA Date: 2024.04.18
Court on 18.04.2024 15:14:23 +0300
(RICHA MANCHANDA)
Judge MACT-2 (North)
Rohini Courts, Delhi
Rinki Devi & Ors. Vs. Mahender Kumar & Ors. Judge MACT 02(North) Page 28 of 28