Delhi District Court
Smt. Suman Gupta vs Sh. Kausar Ali on 28 March, 2023
fIN THE COURT OF DR. VIJAY KUMAR DAHIYA,
PRESIDING OFFICER : MOTOR ACCIDENT CLAIMS
TRIBUNAL & ADDITIONAL DISTRICT JUDGE 01, NORTH
WEST : ROHINI COURTS, DELHI
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UID No. / CNR No. DLNW01 0090542018 MACT CASE No. 548 / 2018 FIR No. 227/2017, PS Debai Bulandshahar, UP In the matter of :
1. Smt. Suman Gupta, W/o late Sh. Jugal Kishore aged about 34 years
2. Kumari Kavita, D/o late Sh. Jugal Kishore aged about 13 years
3. Kumari Khushbu, D/o late Sh. Jugal Kishore aged about 08 years
4. Master Titu, S/o late Sh. Jugal Kishore aged about 06 years
5. Master Prince, S/o late Sh. Jugal Kishore aged about 04 years All R/o : T1 / 71, Budh Vihar, PhaseI, Sultan Puri C Block, North West, Delhi - 110 086 .....Petitioners vs.
1. Sh. Kausar Ali S/o Sh. Sabbir Ali MACT Case No. 548/2018 (FIR no. 227/2017) Suman Gupta & ors. v. Kausar Ali & Anr.
Page no. 1 of 28 R/o 239, JalpuraII, PS Bisrakh, Tehsil Dadri, Distt. Gautam Budh Nagar, UP ....Driver/Owner/R1
2. The New India Assurance Co. Ltd., level - 4, Jeewan Bharti Building, TowerII, Janpath Road, Connaught Place, New Delhi 110 001 ....Insurer/R3 Date of institution of the petition : 18.08.2018 Date of final Arguments : 28.03.2023 Date of Decision : 28.03.2023 Appearance (s) :Sh. Anoop Kumar Pandey, Ld. Counsel for petitioner None for R1 Sh. Rajesh Jagirdar, Ld. Counsel for R2 JUDGMENT/AWARD
1. Vide this judgment/award, I shall dispose off the petition u/s 166 & 140 of the Motor Vehicles Act. (in short, the Act) filed by the LRs of the deceased Jugal Kishore (in short, the deceased), who died in a road vehicular accident on 05.07.2017.
2. It is submitted that on 05.07.2017 at about 05.30 AM, the deceased was going from Bhimpur Dauraha on motorcycle no. DL 85AF5416 (in short the said motorcycle) to Delhi. One Sh. Suraj Pal was driving the said motorcycle and the deceased and her minor daughter Khushbu were the pillion riders. Sh. Suraj pal was driving the said motorcycle at a moderate speed, with full care and caution on the left side of the road. When the said motorcycle reached near at MACT Case No. 548/2018 (FIR no. 227/2017) Suman Gupta & ors. v. Kausar Ali & Anr.
Page no. 2 of 28 about 05.30 am on Debai Sikarpur Road, District Bulandshahar, at the same time, from the opposite direction a vehicle i.e. Tata Indigo Car bearing number UP16ET2563 (in short, the offending vehicle) driven by respondent no.1 in a rash and negligent manner, carelessly, in a zigzag manner and at a highspeed come and respondent no.1 carelessly turned the offending vehicle to the right side of the road and hit the said motorcycle from front side. The deceased due to said collision, jumped in the air and fell down on the road with his head downwards, and he sustained multiple injuries, and the deceased succumbed to his injuries on 02.02.2018 during his medical treatment. The driver of the said motorcycle escaped narrowly and suffered minor injuries.
3. It is stated that the respondent no.1/driver of the offending vehicle fled away from the spot leaving behind the offending vehicle. At the time of the said accident, the said motorcycle was being driven by Sh. Suraj Pal on left side of the road at a slow speed with full care and caution. The accident took place due to the sole negligence of respondent no.1.
4. It is stated that in respect of the said accident, the FIR bearing no. 227/2017 was lodged on 09.07.2017 at about 09.10 pm in PS Debai, District Bulandshahar UP under Section 279/337/338 IPC. It is stated that the petitioners were fully dependent on the income of the deceased and none of the petitioners have their own income and the petitioners are in financial distress. It is stated that the present MACT Case No. 548/2018 (FIR no. 227/2017) Suman Gupta & ors. v. Kausar Ali & Anr.
Page no. 3 of 28 petition has been filed seeking compensation to the tune of Rs. 53,05,000 along with interest @12% per annum from the date of filing of this petition till its realisation.
5. Written statement has been filed on behalf of respondent no.1/driver of the offending vehicle and, it is, interalia submitted that the present petition is liable to be rejected since the offending vehicle was not responsible for the said accident, and the said accident has not been caused due to the fault of respondent no.1. It is submitted that present petition filed by the petitioners is false, frivolous, vexatious and malafide as the petitioners have not placed on record any document in support of the allegations levelled in the present petition, and the petition is liable to be rejected for the lack of material particulars details. It is also submitted that the amount claimed is very much excessive, exorbitant and without any basis, therefore, the present petition is liable to be dismissed.
6. It is submitted that the respondent no.1 was having valid and effective driving license at the time of the said accident and the offending vehicle was registered with respondent no.2 vide policy number 12220031160350026323. It is submitted that respondent no.1 has been falsely implicated in the present case as no such accident has occurred on the said date, time and place.
7. Written statement has also been filed on behalf of respondent no.2/New India Assurance Co. Ltd., and, it is, interalia MACT Case No. 548/2018 (FIR no. 227/2017) Suman Gupta & ors. v. Kausar Ali & Anr.
Page no. 4 of 28 submitted that the respondent no.2 has taken all the pleas under
section 149 of the Act available to it, and the petition is liable to be dismissed. It is submitted that, in case, if it is found that there is contravention of the provisions of Section 149 of the Act, the respondent no.2 denies all the liabilities in this accident. Respondent no.2 has admitted that the offending vehicle was insured with it and was being used contrary to the terms of the insurance policy, without a valid permit, fitness and was being driven by its owner without holding a proper and valid driving license.
8. It is submitted that the owner of the offending vehicle having knowledge that the same is not having the permit, fitness allowed it to be driven by the driver of the offending vehicle, therefore, had willfully breached the terms and conditions of the insurance policy. It is submitted that the petitioners have not filed the chargesheet under section 173 Cr.P.C, site plan of the accident, seizure memo of the offending vehicle, arrest memo, mechanical inspection report, postmortem report and other relevant documents, therefore, the respondent no.2 reserves its right to amend the written statement. It is submitted that the petition is bad for nonjoinder of the necessary parties as the owner, driver and insurer of the said motorcycle are necessary parties, hence, the petition is also liable to be dismissed.
9. After completion of pleadings, following issues were framed by this Tribunal on 22.11.2019 : MACT Case No. 548/2018 (FIR no. 227/2017) Suman Gupta & ors. v. Kausar Ali & Anr.
Page no. 5 of 28
1. Whether deceased Jugal Kishore S/o Sh. Sohan Lal expired due to injuries suffered in road traffic accident on 05.07.2017 at about 05.30 am at Village Daulatpur on Debai Shikarpur Road in District Bulandshahar, due to rash and negligent driving of offending vehicle bearing registration no. UP 16ET2563, which was being driven by driver Sh. Kausar Ali s/o Sh. Sabbir Ali, on the said date, time and place? OPP.
2. Whether the petitioners are entitled to compensation, if so, to what amount and from whom? OPP
3. Relief.
10. Thereafter, matter was listed for recording of petitioners evidence. In order to prove its case, Smt. Suman Gupta, has been examined as PW1, who has deposed in terms of affidavit of evidence Ex. PW1/A and has relied on :
(i) The original Discharge cards of Geetanjali Hospital as Ex.
PW1/1,
(ii) Copy of death certificate of deceased as Ex. PW1/2,
(iii) The original Medical bills as Ex. PW1/3,
(iv) Copy of Aadhar card of deceased as Ex. PW1/4,
(v) Copy of Aadhar card of petitioner no.1 as Ex. PW1/5
(vi) Copy of Aadhar card of petitioner no.2/Kavita Gupta as Ex. PW1/6
(vii)Copy of birth certificate of petitioner n.3/Khushbu as Ex.
PW1/7,
(viii)Copy of birth certificate of petitioner no.4 Titu as Ex. PW1/8,
(ix) Copy of date of birth of petitioner no.5 Prince as Ex. PW1/9,
(x) Certified copy of criminal court record as Ex. PW1/10.
11. In crossexamination, PW1 testified that she is aware about the contents of affidavit Ex. PW1/A. She testified that the accident occurred on 05.07.2017, however, she had not seen the accident and MACT Case No. 548/2018 (FIR no. 227/2017) Suman Gupta & ors. v. Kausar Ali & Anr.
Page no. 6 of 28 she do not know anything about the accident. She testified that the deceased was admitted in the hospital for about seven months, however, she was not aware about the date of his admission in Hospital. She testified that she had spent an amount of Rs. 9 lakhs on the treatment of deceased, however, she do not have the bills of Rs. 9 lakhs. She testified that deceased was running a "chat" shop prior to the said accident and was earning Rs. 20,000/ per month, however, there is no documentary proof regarding the said income as deceased was not filing any ITR. She testified that the deceased expired on 02.02.2018, however, she did not gave any information regarding the death of deceased to the police. She also testified that postmortem of the deceased was not conducted. She denied that the death of deceased occurred due to said accident. She denied that death of deceased was not natural, however, it was due to said accident. She testified that she has four children and all are minors. She denied that the bills have no connection with the present accident and the same are fake.
12. Sh. Sita Ram Gupta, brother of the deceased has been examined as PW2, who has deposed in terms of affidavit of evidence Ex. P2.
13. In crossexamination, PW2 testified that accident occurred on 05.07.2017, however, he had not seen the accident, and he do not know anything about the said accident. He testified that deceased was admitted in the hospital for about seven months, however, he do not MACT Case No. 548/2018 (FIR no. 227/2017) Suman Gupta & ors. v. Kausar Ali & Anr.
Page no. 7 of 28 know the date of admission of the deceased in hospital He testified that they have spent Rs. 9 lakhs on the treatment of deceased, however, they do not have the bills of Rs. 9 lakhs. He testified that deceased was running a "chat" shop and was earning Rs. 20,000/ per month however, there is no documentary proof regarding the said income as deceased was not filing any ITR. PW2 testified that the deceased expired on 02.02.2018. He testified that he did not gave any information regarding the death of deceased to the police. He also testified that postmortem of the deceased was not conducted. He denied that death of the deceased had not occurred due to said accident. He denied that death of the deceased was not natural, however, it was due to said accident. He testified that the deceased has left behind four minor children. He denied that the bills have no connection with the present accident and the same are fake.
14. Dr. Sanjeev Kumar Sharma, Geetanjali Hospital, Aligarh has been examined as PW3 who has testified that he can identify the treatment record of deceased, who had sustained head injury, fracture (Right Tempro Parietal Bones alongwith underline extra dura heamatoma with dural tear and subdural haemotoma with temporal heamotoma) in a road traffic accident. He testified that deceased was admitted in Geetanjali Hospital on 05.07.2017 and he was a visiting Doctor on call, and had seen the patient/deceased on 06.07.2017 and patient/deceased was admitted in different Hospitals i.e. Jeevan Sujata Hospital on 07.07.2017 where deceased was operated on 08.07.2017. The deceased was discharged from that hospital on 18.07.2017 and MACT Case No. 548/2018 (FIR no. 227/2017) Suman Gupta & ors. v. Kausar Ali & Anr.
Page no. 8 of 28 was again admitted in Geetanjali Hospital on 19.07.2017. As per record patient/deceased was discharged from Geetanjali Hospital on 26.07.2017. As per record of discharge summary dated 26.07.2017, the deceased was unconscious and on ryles tube to feeding with tracheostomy tube present in situ. Witness testified that after seeing the record of the deceased, he can say that the condition of deceased was serious and injuries were dangerous. He testified that he could not say that how much chances of survival of the deceased were there, however, the same were very minimum.
15. In crossexamination, witness testified that deceased was re admitted in Geetanjali Hospital after 26.07.2017 as per record and he was discharged on 14.08.2017. He has no record regarding re admission of the deceased in his hospital except the material already on record. He has brought the photocopy of the same which is Ex. PW3/1. He testified that he has no information regarding the death of the deceased. He testified that at the time of the admission the patient was having grievous injuries. He denied that the condition of the patient was not serious.
16. Thereafter petitioners evidence was closed and matter was listed for recording of respondents evidence. However, on the statement of ld. Counsel for respondent no.2, respondents evidence was closed.
MACT Case No. 548/2018 (FIR no. 227/2017) Suman Gupta & ors. v. Kausar Ali & Anr.
Page no. 9 of 28
17. I have heard Ld. Counsel for the parties and have gone through the testimony of witnesses including the pleadings and the documents and written submissions filed by ld. Counsel for parties. My issue wise findings in the case are as under: ISSUE NO.1
18. The present petition has been filed against the respondents and onus is upon the petitioners to prove rash and negligent act of respondents. The wife of deceased has been examined as PW1 and brother of the deceased has been examined as PW2, who have proved on record the mode and manner in which the said accident took place. They have reaffirmed and reiterated the averments made in petition.
19. Keeping in view the facts & evidence produced by the petitioners, it has proved on record that the said accident has taken place due to the rash and negligent driving of the offending vehicle driven by respondent no.1 as a result of which the deceased has expired. Needless to say, the injuries mentioned in the postmortem of the deceased are consistent with the injuries which are sustained by deceased resulting into his death.
20. Furthermore, it is an established principle of law that in a claim petition under the Act, the standard of proof to establish rash and negligent driving by the driver of the offending vehicle is not at par with the criminal case where such rashness and negligence is MACT Case No. 548/2018 (FIR no. 227/2017) Suman Gupta & ors. v. Kausar Ali & Anr.
Page no. 10 of 28 required to be proved beyond all shadow of reasonable doubt. In case of Kaushnamma Begum and others v. New India Assurance Company Limited" (2001) 2 SCC 9, it was inter alia held by the Hon'ble Supreme Court that the issue of wrongful act or omission on the part of the driver of the motor vehicle involved in the accident has been left to a secondary importance and mere use or involvement of motor vehicle in causing bodily injury or death to a human being or damage to property would make the petition maintainable under Sections 166 and 140 of the Act.
21. The deceased was victim of accident and the testimony of the witness against the driver of offending vehicle has been corroborated by the documentary evidence that respondent no.1 was present on the spot at the time of accident, therefore, the case does not warrant any other best evidence.
22. In Bimla Devi & Ors vs. Himachal Road Transport Corporation & ors (2009) 13 SC 530, in Kaushnumma Begum and others v/s New India Assurance Company Limited, 2001 ACJ 421 SC, in National Insurance Co. Ltd. vs. Pushpa Rana cited as 2009 ACJ 287, it has been held that the negligence has to be decided on the touchstone of preponderance of probabilities and a holistic view is to be taken. It has been further held that the proceedings under the Act are not akin to the proceedings in a civil suit and hence, strict rules of evidence are not applicable.
MACT Case No. 548/2018 (FIR no. 227/2017) Suman Gupta & ors. v. Kausar Ali & Anr.
Page no. 11 of 28
23. Though not quoted, reliance is placed upon Sunita & Ors. v. Rajasthan State Road Transport Corporation & Anr., 2019 SCC Online SC 195, wherein, it has been observed as under :
"20.....
11. While dealing with a claim petition in terms of Section 166 of the Motor Vehicles Act, 1988, a tribunal stricto sensu is not bound by the pleadings of the parties; its function being to determine the amount of fair compensation in the event an accident has taken place by reason of negligence of that driver of a motor vehicle. It is true that occurrence of an accident having regard to the provisions contained in Section 166 of the Act is a sine qua non for entertaining a claim petition but that would not mean that despite evidence to the effect that death of the claimant's predecessor had taken place by reason of an accident caused by a motor vehicle, the same would be ignored only on the basis of a postmortem report visavis the averments made in a claim petition.
XXXXX
14. Some discrepancies in the evidence of the claimant's witnesses might have occurred but the core question before the Tribunal and consequently before the High Court was as to whether the bus in question was involved in the accident or not. For the purpose of determining the said issue, the Court was required to apply the principle underlying the burden of proof in terms of the provisions of Section 106 of the Evidence Act, 1872 as to whether a dead body wrapped in a blanket had been found at the spot at such an early hour, which was required to be proved by Respondents 2 and 3.
15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. For the said purpose, the High Court should have taken into consideration the respective stories set forth by both the parties." (emphasis supplied) The Court restated the legal position that the claimants were merely to establish their case on the touchstone of preponderance of probability and standard of proof beyond reasonable doubt cannot be applied by the Tribunal while dealing with the motor accident cases. Even in that case, the view taken by MACT Case No. 548/2018 (FIR no. 227/2017) Suman Gupta & ors. v. Kausar Ali & Anr.
Page no. 12 of 28 the High Court to reverse similar findings, recorded by the Tribunal was set aside."
24. As already discussed above, the petitioner/deceased was got admitted in the hospital w.e.f. 05.07.202017 to 14.08.2017 (i.e. for about 38 days approx) and had expired on 02.02.2018 and, thereafter, his legal heirs filed the present claim petition for the fatal injury suffered by the injured due to the said accident
25. It is the contention of ld. counsel for the petitioners that the deceased has died due to the grievous injuries sustained by him due to the said said accident, therefore, the petitioner be compensated for the fatal injuries. In support of his contentions, reliance has been placed on Manager New India Assurance Co. Ltd. v. Bhagvathi Amma & Ors. 2020 ACJ 249, New India Assurance Co. Ltd. v. Meenakshi & Ors., 2020 ACJ 587, Phusa Ram v. Gurdev Singh & Ors., 2020 ACJ 2201, O Thiraviam v. Sri Vairavan Roadways & Ors., 2018 ACJ 2201, National Insurance Co. Ltd. v. Goswami Lilaben Dashrathbhai & ors., Sushil Devi v. Hira Lal judgment passed in first Appeal no. 4593/2006 by the Hon'ble High Court of Gujarat.
26. ld. Counsel for the petitioners has further submitted that though the petitioner/deceased has suffered grievous head injuries and was got admitted in Hospital w.e.f. 05.07.2017 to 14.08.2017, and was lateron expired on 02.02.2018, however, the deceased had expired due to the said injuries suffered in the said accident. Ld. Counsel for the petitioners has further submitted that as per the MACT Case No. 548/2018 (FIR no. 227/2017) Suman Gupta & ors. v. Kausar Ali & Anr.
Page no. 13 of 28 opinion of PW3 Dr. Sanjeev Sharma, there are minimum chances of survival of the petitioner/deceased. He has further submitted that in view of the judgments cited above, the petitioners are entitled to the compensation as in fatal injury case.
27. Per contra, ld. Counsel for respondent no.3 has submitted that the petitioners are not liable for the compensation as in fatal injury cases as, primarily the chargesheet has been filed by the IO for the offence under Section 279/337/338 IPC and thereafter, the chargesheet has not been amended till date. It is also submitted that the deceased was admitted in Hospital on 05.07.2017 and discharged on 14.08.2017. Thereafter, deceased had expired on 02.02.2018 i.e. after about six months and the petitioner no.1 had neither informed the police about the death of the deceased nor intimated the police about the death of the said accident nor has has filed an application seeking amendment in chargesheet.
28. It is further contention of ld. Counsel for respondent no.3 that there is no cogent evidence on record to show that death of the deceased occurred due to injuries sustained by him on account of the accident. Hence, it was urged on its behalf that since death of the deceased could not be related with the injuries suffered by him in the accident, his legal heirs are only entitled to loss of estate.
29. Undisputedly, no postmortem was got conducted on the body of the deceased, at the time of his death, and there is nothing on MACT Case No. 548/2018 (FIR no. 227/2017) Suman Gupta & ors. v. Kausar Ali & Anr.
Page no. 14 of 28 documentary record to establish the exact cause of his death.
30. It may be noted that that in Bhagavathi Amma (supra), the ld.
Tribunal has granted compensation without the postmortem of the deceased being conducted and in appeal, in para no. 9, it has been observed as under :
"9.Perusal of the impugned judgment discloses that though an attempt had been made by the appellant to contend that no postmortem was conducted and it is fatal to the case, the Tribunal relying upon the decision reported in 2012 (7) MLJ 357 New India Assurance Co. Ltd., Chennai vs. R.Santhi and others, held that merely because postmortem not conducted, it cannot be said that the death was not due to the injuries sustained in the road accident. The Tribunal also held that there is no contra evidence to show that the deceased not died due to the injuries sustained in the accident happened on 06.08.2008 and there is no evidence to show that the deceased died due to cardiac problem. Since there is a specific admission by RW1 that the deceased was admitted second time in the hospital for removing the screws, the Tribunal held that the deceased died due to the injuries sustained in the accident on 06.08.2008. In my considered opinion, there is no infirmity in the finding of the Tribunal regarding liability of the appellant and therefore, the said finding is confirmed."
31. In the same manner, in Meenakshi (supra), the ld. Tribunal has awarded the compensation to the petitioner (therein) for the death of the deceased, however, no post mortem was conducted and the said findings has been upheld by the Hon'ble High Court of Madras by observing that though the cause of death was "COPD, pulmonary tuberculosis and polytrauma with sepsis", however, the injuries would go to show that the injuries sustained by the deceased in the said accident have also been cause of his death.
32. Similarly in Phusa Ram (supra), the death of the deceased/ MACT Case No. 548/2018 (FIR no. 227/2017) Suman Gupta & ors. v. Kausar Ali & Anr.
Page no. 15 of 28 Ratnaram was found not to have occurred on account of road accident, however, the said findings has been set aside by the Hon'ble High Court of Rajasthan at Jodhpur, and in para no. 11, it has been observed as under :
"11. Keeping in view the above, if the statement of Vijay Kumar, who is a Government Ayurvedic Doctor living in the village is considered, this Court finds that he has sufficiently proved through his statement that the death of Ratnaram was caused on account of injuries in his legs. Injuries are those, which are noticed in the discharge certificate Exhibit19. Hence, the view taken by the MACT is found to be erroneous. The learned Tribunal has failed to examine the Exhibit19 and wrongly denied the claim of the claimants. "
33. In O. Thiraviam (supra), in para no. no. 8, it has been observed as under :
"8.The learned counsel appearing for the appellant relied on the decision of this court reported in Abdul Rahim v. Sundaresan 2011 ACJ 2197 (Madras). It has been held in the said decision that non doing of postmortem on the body of the deceased would not be a ground to deny compensation to the claimant. When it has been established that deceased was taking continual treatment and the doctor, who gave the treatment also deposed that the death was directed relatable to the accident, this Court has no hesitation in coming to the conclusion that the death of the deceased occurred only due to the injuries caused to her in the said accident. The Tribunal erred in awarding compensation only for the injuries suffered in the accident. It ought to have awarded compensation by holding that the death was due to the accident. Therefore, this Court has no hesitation in setting aside the award dated 09.11.2004 in MCOP No.238 of 1999 and allowing this appeal. The court below had awarded a sum of Rs.25,000/. The claim was for Rs.1,00,000/. Hence the value of the CMA was restricted to Rs.75,000/ "
34. In the same manner, in Goswami Lilaben Dasrathbhai (supra), the deceased met with an accident on 09.08.1993 and he MACT Case No. 548/2018 (FIR no. 227/2017) Suman Gupta & ors. v. Kausar Ali & Anr.
Page no. 16 of 28 sustained injuries on 09.08.1993 and died on 11.02.1996 and the Tribunal awarded the compensation to the LRs of the deceased (therein) and in Appeal the Hon'ble High Court of Gujarat at Ahmedabad, upheld the said findings in as much as the evidence of the Doctor, who had diagnosed the deceased when admitted in Hospital had categorically stated that the deceased was suffering from acute hemorrhagic disseminated encephalomyelitis.
35. In Sushila Devi (supra), it has been observed that :
"that on account of the fractures, the patient develops fat embolism, which results in sudden heart attack and can result in death of the patient. However, the said statement of the doctor was wrongly brushed aside by the Tribunal based on the certificate Exhibit20 given by him indicating the 'Cardiorespiratory Arrest' as the cause of death....
XXXX "....that though the cause of death indicated was 'Cardiorespiratory Arrest', on account of multiple fractures resulting in fat embolism, which appears to the cause and denied that fat embolism has anything to do the shock and reiterated that the same occurred on account of the fractures including pelvis fracture, which was suffered by the deceased......"
It was further observed that as per the expert opinion the deceased died on account of fat embolism.
36. With the above said proposition of law, I would like to advert to the facts of the present case. From the mandate of law laid down by superior courts, it can be safely concluded that the deceased died on account of injuries sustained by him in the said accident in as MACT Case No. 548/2018 (FIR no. 227/2017) Suman Gupta & ors. v. Kausar Ali & Anr.
Page no. 17 of 28 much as the petitioner has proved the discharge slip of the hospital as Ex. PW1/1 (colly) which contains the following relevant details, which are reproduced as under :
"operated by Dr. Sanjeev Sharma Meh on 08.07.2017 at Jeevan Hospital and again readmitted in this Hospital on 19.07.2017 and treated thereafter Head injury C # Rt. Temporo ociepitio epidural hematoima overlying(R) Temporo parietal region"
37. It may be noted that the said Dr. Sanjeev Kumar Sharma, has been examined as PW3, and he has deposed as under :
"I am summoned witness. I can identify the treatment record of patient Mr. Jugal Kishore, who had sustained head injury, fracture (Right Tempro Parietal Bones alongwith underline extra dura heamatoma with dural tear and subdural haemotoma with temporal heamotoma) in a road traffic accident. He was admitted in Geetanjali Hospital on 05.07.2017. I am visited doctor and on call I saw the patient on 06.07.2017 and patient was admitted in different hospital i.e. Jeevan Sujata Hospital on 07.07.2017 and than patient was operated on 08.07.2017. Patient was discharged from that hospital on 18.07.2017 and was again admitted in Geetanjali Hospital on 19.07.2017. As per record patient was discharged from Geetanjali Hospital on 26.07.2017. As per record of discharge summary of 26.07.2017 patient was unconscious and on ryle's tube to feeding with tracheostomy tube present in situ. After seeing all the record of this patient I can say patient condition was serious and injuries were dangerous. I cannot say that how much chances of survival of the deceased were there, however, chances were very minimum."
In crossexamination nothing could be elucidated by ld. Counsel for the respondents that the deceased was not suffering from such injuries, and his chances of survival are minimum.
However, the witness Dr. Harish Kumar Sharma has categorically stated that the chances of the survival of the deceased were minimum. Therefore, in view of the impeccable evidence of MACT Case No. 548/2018 (FIR no. 227/2017) Suman Gupta & ors. v. Kausar Ali & Anr.
Page no. 18 of 28 the Doctor/PW3, this tribunal has no hesitation to observe that the deceased has died due to the injuries sustained by him in the said accident.
38. In view of the aforesaid discussion and the evidence which has come on record, it is held that the rashness and negligence on the part of respondent no.1/driver is clearly visible and as such, he was responsible not only for this accident, but also for everything that followed thereafter. Accordingly issue no.1 is decided in favour of the petitioners and against the respondents.
ISSUE NO. 2COMPENSATION
39. Basically only three facts need to be established by the claimants for assessing compensation in the case of death : (a) age of the deceased; (b) income of the deceased; and the (c) the number of dependents. The issues to be determined by the Tribunal to arrive at the loss of dependency are (i) additions/deductions to be made for arriving at the income; (ii) the deduction to be made towards the personal living expenses of the deceased; and (iii) the multiplier to be applied with reference of the age of the deceased. If these determinants are standardized, there will be uniformity and consistency in the decisions. There will be lesser need for detailed evidence. In this regard, though not quoted, reliance is placed upon, Sarla Verma & Ors. v. Delhi Transport Corporation & Anr. (2009) 6 SCC 121.
MACT Case No. 548/2018 (FIR no. 227/2017) Suman Gupta & ors. v. Kausar Ali & Anr.
Page no. 19 of 28
40. As already stated above, the claimants/petitioner no.1 is the wife of the deceased and petitioner no.2, petitioner no.3, petitioner no. 4 and petitioner no. 5 are the minor children of the deceased. PW1 Smt. Smriti Kumari, wife of the petitioner has testified that the deceased a street vendor and used to work as "chat" vendor and was earning an amount of Rs. 20,000/ per month, however, she has failed to either prove on record any document to this effect nor bring any witness from the employer of the deceased. The date of birth as per the Aadhar card of deceased is 01.01.1979 and the deceased was aged about 38 years 6 months as on the date of the accident. In view thereof, the income of the deceased, as on the date of the accident, has been treated as that of "unskilled person" and as on the date of accident i.e. 05.07.2017 the minimum wages for unskilled labour in Delhi was Rs.13,584/ per month. The ld. Counsel for the petitioners further argued that future prospects should also be awarded to the petitioners as per law.
41. Accordingly, on the basis of aforementioned documents, age of the deceased is taken as 38 years as on the date of accident. Hence, the multiplier of "15" would be applicable in view of pronouncement made in case titled as Sarla Verma (supra).
42. Considering the fact that deceased was aged about 38 years of age at the time of accident and was not having a permanent job at that time, future prospects @ 40% has to be awarded in favour of MACT Case No. 548/2018 (FIR no. 227/2017) Suman Gupta & ors. v. Kausar Ali & Anr.
Page no. 20 of 28 petitioners in view of recent pronouncement made by Constitutional Bench of Apex Court in the case titled as National Insurance Company Ltd. v. Pranay Sethi & Ors., (2017) 16 SCC 680, as well as in view of recent decision of Hon'ble Delhi High Court in appeal Bajaj Allianz General Insurance Company Ltd. v. Pooja & Ors, in MAC APP No. 798/2011.
43. Since, the deceased is married and there are five claimants i.e. petitioner No.1 wife, petitioner no. 2 to petitioner no.5 minor children, there has to be deduction of "1/4", as per the mandate of Sarla Verma (supra). Thus, total loss of dependency would come out as under:
S. Head Amount Remarks
No. (Rs.)
1 Monthly Income of deceased 13,584
Sh. Jugal Kishore (A)
2 Add: Future prospects @ 40% (B) 5433.6 40% of (A)
3 Less: Personal expenses of 4754.4 [(A)+ (B)] / 4=
deceased @ (1/4th) (C) (C)
4 Monthly loss of dependency (D) 14,263.2 [(A)+(B)](C)=
(D)
5 Annual Loss of dependency (E) 1,71,158 (D) x 12 = (E)
6 Multiplier @ 15
7 Total Loss of dependency (F) 25,67,370 (E) x 15
(multiplier)=(F)
Total: 25,67,370
LOSS OF LOVE & AFFECTION
44. After the judgment passed in National Insurance Company Ltd. v. Pranay Sethi & Ors. (supra) and recent judgment titled as MACT Case No. 548/2018 (FIR no. 227/2017) Suman Gupta & ors. v. Kausar Ali & Anr.
Page no. 21 of 28 New India Assurance Company Limited v. Somwati & Ors., Civil Appeal no. 3093 of 2020 the petitioners are not entitled to be compensated under this head. Further, Hon'ble Delhi High Court in appeal titled as Bajaj Allianz General Insurance Company Ltd. Vs. Pooja & Ors, (supra) has been pleased to observe in para 18 of the judgment that the Constitution Bench decision in Pranay Sethi (supra) does not recognize any other nonpecuniary head of damages. Hence, no amount of compensation is being awarded under this head.
MEDICAL EXPENSES
45. The ld. Counsel for the petitioner has submitted that after the accident the deceased/injured was admitted in Geetanjali Hospital, Aligarh. ld. Counsel for the petitioners has submitted that during the course of his treatment, the deceased has incurred Rs. 4,48,814/ towards his medical expenses. In support of this contentions. ld. counsel for the petitioners has filed on record the medical bills of the deceased on record. In view of the submissions made and the invoices filed on record, I hereby grant an amount of Rs. 4,48,814/ (Rupees Four Lakhs Fourty Eight Thousand Eight Hundred Fourteen Only) towards medical expenses.
LOSS OF CONSORTIUM
46. In view of the judgment of Hon'ble Supreme Court in case titled as, "New India Assurance Company Limited V/s Somwati & Ors.", Civil Appeal No.3093 of 2020, I am of the considered opinion MACT Case No. 548/2018 (FIR no. 227/2017) Suman Gupta & ors. v. Kausar Ali & Anr.
Page no. 22 of 28 that the parents are entitled for payment of Rs.44,000/ each towards loss of consortium. Consequently, a sum of Rs.2,20,000/ (Rs.44,000/ x 5) is awarded to the petitioners under this head.
LOSS OF ESTATE & FUNERAL EXPENSES
47. 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 "National Insurance Company Ltd. v. Pranay Sethi & Ors." mentioned supra, a sum of Rs. 16,500/ is awarded in favour of petitioners on account of loss of estate and a sum of Rs. 16,500/ is awarded in favour of petitioners on account of funeral expenses. Thus, the total compensation is assessed as under:
S. No. Head Amount (Rs.)
1 Loss of dependency 25,67,370
2 Loss of Consortium 2,20,000
(Rs.44,000 x 5)
3 Loss of Estate & Funeral 33,000
Expenses (@ 16,500/ each)
4. Medical Expenses 4,48,814
TOTAL 32,69,184/
48. Now, the question which arises for determination is as to which of the respondents is liable to pay the compensation amount. Respondent no.1 has in his affidavit of evidence has submitted that the offending vehicle was being driven by him and the same was duly insured with respondent no.2.
49. ld. Counsel for the respondent no.2/Insurance company has though submitted that the offending vehicle was being driven by MACT Case No. 548/2018 (FIR no. 227/2017) Suman Gupta & ors. v. Kausar Ali & Anr.
Page no. 23 of 28 the respondent no.1 without proper and valid documents, however, the said arguments pales into insignificance as the record shows otherwise. In view thereof, it is clear that the offending vehicle was duly insured at the time of the said accident and it is the respondent no.2 who is liable to indemnify the petitioners. In view of the findings on issue above, issue no.2 is accordingly disposed off.
ISSUE No.3: RELIEF
50. In view of the aforesaid discussion, I award compensation of Rs. 32,69,184/ (Thirty Two Lakhs Sixty Nine Thousand One Hundred Eighty Four Only) alongwith interest @ 6.5% per annum in favour of petitioners and against the respondent no.2/insurance company from the the date of filing of the petition i.e. 18.08.2018 till the date of its realization in terms of Oriental Insurance Company Ltd. v. Sangeeta Devi & Ors. bearing MAC. APP. 165/2011.
APPORTIONMENT
51. The statement of petitioner no.1/ Smt. Suman Gupta, petitioner no.1 as well as on petitioner no.2 in terms of Clause 26 MCTAP was recorded on 31.01.2023. Having regard to the facts and circumstances of the case, it is hereby ordered that out of total compensation amount, the amount is disbursed as follows :
(a) petitioner No.1/Smt. Suman Gupta (Wife of the deceased Jugal Kishore) shall be entitled to share amount of Rs.15,00,000/ (Rupees Fifteen Lakhs Only) alongwith proportionate interest;
MACT Case No. 548/2018 (FIR no. 227/2017) Suman Gupta & ors. v. Kausar Ali & Anr.
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(b) petitioner No.2/Kavita (daughter of deceased Jugal Kishore) shall be entitled to share amount of Rs.4,42,250/ (Rupees Four Lakhs Fourty Two Thousand Two Hundred Fifty Only) alongwith proportionate interest.
(c) petitioner No.3/Khushbu (minor daughter of deceased Jugal Kishore) shall be entitled to share amount of Rs.4,42,250/ (Rupees Four Lakhs Fourty Two Thousand Two Hundred Fifty Only) alongwith proportionate interest.
(d) petitioner No.4/Titu (minor son of deceased Jugal Kishore) shall be entitled to share amount of Rs.4,42,250/ (Rupees Four Lakhs Fourty Two Thousand Two Hundred Fifty Only) alongwith proportionate interest.
(e) petitioner No.5/Prince (minor son of deceased Jugal Kishore) shall be entitled to share amount of Rs.4,42,250/ (Rupees Four Lakhs Fourty Two Thousand Two Hundred Fifty Only) alongwith proportionate interest.
52. Out of share amount of petitioner No.1/Smt. Suman Gupta, a sum of Rs.5,00,000/ (Rupees Five Lakhs Only) shall be immediately released to her in her MACT Saving Bank Account No. 41441776009, State Bank of India, Rohini Court Branch, Delhi, having IFSC Code SBIN0010323 and the remaining amount alongwith interest amount is directed to be kept in the form of FDRs in the multiples of Rs.15,000/ each for a period of one month, two months, three months and so on and so forth, having cumulative interest.
53. Out of share amount of petitioner No.2/Kavita, a sum of Rs.50,000/ (Rupees Fifty Thousand Only) shall be immediately released to her in her MACT Saving Bank Account No. MACT Case No. 548/2018 (FIR no. 227/2017) Suman Gupta & ors. v. Kausar Ali & Anr.
Page no. 25 of 28 41554697742, State Bank of India, Rohini Court Branch, Delhi, having IFSC Code SBIN0010323 and the remaining amount alongwith interest amount is directed to be kept in the form of FDRs in the multiples of Rs.10,000/ each for a period of one month, two months, three months and so on and so forth, having cumulative interest.
54. The entire share amount of minor children of the deceased i.e. petitioner no.3 Khushbu, petitioner no.4 Titu and petitioner no. 5 Prince be kept in FDR(s) for the period till they attain the age of majority and, thereafter, the amount be released to them in their respective MACT Saving Bank Accounts, i.e 41621070772 (Khushbu), Prince Gupta (41627331957) and 41621069291 (Titu) along with cumulative interest. The petitioners no.2, petitioner no.3 & petitioner no.4 are at liberty to withdraw their monthly interest in order to meet their educational expenses through their mother/natural guardian/petitioner No.1.
55. 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).
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(c) The monthly interest be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant(s) near the place of their residence.
(d) The maturity amounts of the FDR(s) be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant(s) near the place of their residence.
(e) No loan, advance, withdrawal or premature discharge be allowed on the fixed deposits without permission of the Court.
(f) The concerned bank shall not 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.
56. Respondent no.2/Insurance is hereby directed to deposit the Award amount with SBI, Rohini Courts Branch within 30 days as per above order, failing which they shall be liable to pay interest @ 9% per annum for the period of delay. Concerned Manager, SBI, Rohini Court Branch is directed to transfer the respective share amounts MACT Case No. 548/2018 (FIR no. 227/2017) Suman Gupta & ors. v. Kausar Ali & Anr.
Page no. 27 of 28 immediately to aforesaid petitioners in their aforesaid saving bank accounts, on completing necessary formalities as per rules. Copy of the award be given dasti to the petitioners/claimants and respondents for information and compliance.
57. 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 no. V and Form IV A are annexed as Annexure A. Copy of order be also sent to concerned M.M and DLSA as per clause 31 and 32 of MCTAP.
58. A separate file be prepared for compliance report by the Nazir and put up the same on 01.05.2023.
File be consigned to record room after due compliance.
Digitally signed ANNOUNCED IN THE OPEN COURT VIJAY by VIJAY th KUMAR ON 28 DAY OF MARCH 2023. KUMAR DAHIYA Date: DAHIYA 2023.03.28 17:33:55 +0530 (DR. VIJAY KUMAR DAHIYA) ADJ1+MACT, NORTH WEST, ROHINI COURTS, DELHI MACT Case No. 548/2018 (FIR no. 227/2017) Suman Gupta & ors. v. Kausar Ali & Anr. Page no. 28 of 28