Delhi District Court
Smt. Shyam Kali & Ors vs Ram Kumar & Ors. Page 1 Of 31 on 11 October, 2022
MACP No. 5065/16; FIR No. 397/15; PS.S.P. Badli DOD: 11.10.2022
IN THE COURT OF SH. VINOD YADAV,
PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNAL,
NORTH DISTRICT,ROHINI COURTS, DELHI
MAC Petition No. 5065/16
UID/CNR No. DLNT010008192015
1. Smt. Shyam Kali, ,
W/o Late Sh. Lala Ram,
(Widow of deceased Lala Ram)
2. Smt. Gyanwati,
D/o Late Sh. Lala Ram,
(Married daughter of deceased)
3. Ms. Soni,
D/o Late Sh. Lala Ram,
(Daughter of deceased)
4. Ms.Shanti,
D/o Late Sh. Lala Ram,
(Daughter of deceased)
5. Ms. Neha,
D/o Late Sh. Lala Ram,
(Daughter of deceased)
6. Ms. Kumkum,
D/o Late Sh. Lala Ram,
(Daughter of deceased)
7. Ankit
S/o Late Sh. Lala Ram,
(Son of deceased)
Smt. Shyam Kali & Ors Vs.Ram Kumar & Ors. Page 1 of 31
MACP No. 5065/16; FIR No. 397/15; PS.S.P. Badli DOD: 11.10.2022
8. Smt. Chandan
W/o Late Sh. Tota Ram,
(Mother of deceased)
(Deleted from array of parties because she expired on
30.04.2018)
All R/o Village Chanjari,
PO Sursena, District Badaun,
Uttar Pradesh.
Also at H.No. 58, Gali No. 9,
Rana Park, Siraspur, Delhi.
.......Petitioners
VERSUS
1. Sh. Ram Kumar @ Lala,
S/o Sh. Pitam Singh,
R/o H.No. B11, 66 Foota Road,
Bhagat Singh Park,
Siraspur, Delhi.
(Drivercumowner)
2. The Oriental Insurance Co. Ltd.,
7678, Singh Sabha Road,
Near Amba Cinema Road,
New Delhi.
(Insurer)
.......Respondents
Date of Institution : 13.07.2015
Date of Arguments : 11.10.2022
Date of Decision : 11.10.2022
Smt. Shyam Kali & Ors Vs.Ram Kumar & Ors. Page 2 of 31
MACP No. 5065/16; FIR No. 397/15; PS.S.P. Badli DOD: 11.10.2022
APPEARANCES:
Sh. K.R. Sharma, Ld. Counsel for petitioners.
Sh. V.D. Mishra, Ld. Counsel for drivercumowner. Sh. Sunil Mohan, Ld. Counsel for insurance co.
Petition under Section 166 & 140 of M.V. Act, 1988 for grant of compensation AWARD
1. Sh. Lala Ram had suffered fatal injuries in a Motor Vehicular Accident which occurred on 30.03.2015 at time unknown in the early morning hours at a Road of Village Hamidpur, Delhi, involving Tempo bearing registration no. HR55N7498(offending vehicle) allegedly being driven in a rash and negligent manner by respondent no. 1.
2. The facts of the case which are borne out from the record are that on 31.03.2015, Smt. Shyam Kali, the petitioner no. 1 herein lodged a missing persons report in respect of her husband Sh. Lala Ram(deceased herein) which was recorded as DD No. 7A at PS. S.P. Badli. Thereafter, the details about the deceased were uploaded on Zipnet and WT Messages were flashed and efforts were made to trace him. It was later on learnt by the police that the dead body of an unknown male person had been found in the area of PS. Kundli, Haryana. The family members of deceased went to Kundli and identified the dead body of deceased. On 01.04.2015, SI Naresh from PS. Kundli came to PS. S.P. Badli and handed over a copy of Smt. Shyam Kali & Ors Vs.Ram Kumar & Ors. Page 3 of 31 MACP No. 5065/16; FIR No. 397/15; PS.S.P. Badli DOD: 11.10.2022 Zero FIR No. 03/15, u/s. 302/201/364 IPC, PS. Kundli. Thereafter, the FIR in the present case was recorded under the aforesaid provisions itself. Matter was investigated where it came to fore that the deceased was working as a labourer on the offending vehicle owned by Sh. Ram Kumar @ Lala who was the driver thereupon as well.
3. It also came to fore that on 30.03.2015 at about 6:00 AM, Sh. Ram Kumar @ Lala had called the deceased for loading and unloading debries (Malba). When till late in the night the deceased did not return home, the petitioner no. 1 got missing person report in Police Station S.P. Badli. She also made enquiries from Sh. Ram Kumar @ Lala who told her that he had left the deceased at Libaspur on 30.03.2015 itself.
4. When police interrogated Sh. Ram Kumar, he confessed his guilt to the effect that on the date of incident, he had hired the services of deceased Sh. Lala Ram as a loader to load and unload debries (Malba) on the offending vehicle. They collected the debries from PU Block, Pitam Pura, Delhi and emptied the same in a plot at Village Hamidpur, Delhi through several trips. In the late evening, they had made last trip at about 8:00 PM and when he was reversing the offending vehicle in the presence of Sh. Deepak and Sh. Chenu, the other labourers in another truck which was lying stuck there, he accidentally hit the deceased. The deceased bled profusely. He became perplexed and he got the deceased placed in the offending vehicle on the pretext of taking him to the hospital but noticing the Smt. Shyam Kali & Ors Vs.Ram Kumar & Ors. Page 4 of 31 MACP No. 5065/16; FIR No. 397/15; PS.S.P. Badli DOD: 11.10.2022 condition of deceased, he dumped his body in an open field near Nasha Mukti Kendra, Village Jatti Khurd, Kundli, Haryana. After conclusion of the investigation, Sh. Ram Kumar @ Lala was chargesheeted for offences punishable u/s. 279/304/201/34 IPC.
5. A Detailed Accident Report(DAR) was filed in the matter. It is claimed that the accident had taken place due to rash and negligent driving of offending vehicle by its driver Sh. Ram Kumar/Lala(respondent no. 1). It is further claimed that the offending vehicle was owned by respondent no. 1 himself and was insured with Oriental Insurance Company Limited/Respondent no.2 for the period in question.
6. Although, the drivercumowner put his appearance before this Tribunal at the time of filing of DAR on 13.07.2015, however, he failed to file his written statement despite grant of sufficient time and opportunities. Consequently, his defence was struck off vide order dated 16.11.2015.
7. In its WS, the respondent no. 2/insurance company raised preliminary objection that FIR No. 397/2015 was initially lodged for offence u/s. 302/201/364 IPC in the present case. As per said FIR, the incident had occurred on account of murder and abduction. Later on, IO had filed the final report u/s. 279/304/201 IPC before the court of Ld. MM. It has been claimed that the accused had intentionally committed the offence of causing bodily injury to the deceased. It has been further claimed that the deceased Smt. Shyam Kali & Ors Vs.Ram Kumar & Ors. Page 5 of 31 MACP No. 5065/16; FIR No. 397/15; PS.S.P. Badli DOD: 11.10.2022 had not died due to the accident. However, it has been admitted that the offending vehicle was insured with it in the name of respondent no. 1 having validity from 17.07.2014 to 16.07.2015. It has denied the averments made in the DAR and prayed for its dismissal.
8. From the pleadings of the parties, the following issues were framed by Ld Predecessor vide order dt. 16.11.2015:
1) Whether the deceased Sh. Lala Ram suffered fatal injuries in road traffic accident on 30.03.2015 at unknown time at Village Hamidpur, Delhi within the jurisdiction of PS. S.P. Badli due to rashness and negligence on the part of Ram Kumar @ Lala who was driving tempo bearing registration No. HR55N7498, owned by him and insured with The Oriental Insurance Co. Ltd./R3? OPP
2) Whether the Lrs of deceased are entitled to any compensation if so to what amount and from whom?OPP
3) Relief.
9. Before proceeding further, it may be noted that vide order dated 10.01.19 passed by my Ld. Predecessor, it was directed that the petitioners shall not be entitled to any interest w.e.f. 10.01.2019 till conclusion of PE. Record shows that PE was concluded on 01.07.2019.
Smt. Shyam Kali & Ors Vs.Ram Kumar & Ors. Page 6 of 31MACP No. 5065/16; FIR No. 397/15; PS.S.P. Badli DOD: 11.10.2022 Thus, their right to claim interest, if any, has been curtailed from 10.01.19 till 01.07.2019.
10. In support of their claim, the petitioners have examined two witnesses i.e. PW1 Smt. Shyam Kali (widow of deceased) and PW2 Inspector Naresh Malik (IO of the case) and their evidence was closed vide order dated 01.07.2019. On the other hand, no evidence was adduced by any of the respondents and their evidence was closed vide order dated 23.10.2019.
11. I have heard the arguments addressed by ld counsels for the parties. I have also gone through the record. My findings on the issues are as under: ISSUE NO. 1
12. For the purpose of this issue, the testimony of PW2 Inspector Naresh Malik is relevant. He deposed in his evidence that on 31.03.2015, Smt. Shyam Kali, widow of deceased Lala Ram had lodged a missing persons report in respect of her husband Lala Ram and the same was entrusted to ASI Virender Kumar vide DD No. 7A. He further deposed that ASI Virender had uploaded the details of Lala Ram on Zipnet and made efforts to trace him and in the meanwhile, it came to his knowledge that one dead body had been found in the area of PS. Kundli, Sonepat, Haryana Smt. Shyam Kali & Ors Vs.Ram Kumar & Ors. Page 7 of 31 MACP No. 5065/16; FIR No. 397/15; PS.S.P. Badli DOD: 11.10.2022 which was identified as that of Lala Ram by his family members. He further deposed that on 01.04.2015, SI Naresh Kumar from PS. Kundli came to PS. S.P. Badli and handed over a copy of zero FIR to the Duty Officer HC Rajesh Kumar and made his endorsement on the said zero FIR and a regular case vide FIR No. 397/15 u/s. 302/364/201 IPC was registered at PS. S.P. Badli and investigation of the said case was taken up by him. He further deposed that during investigation, statements of Roop Chand and Shyam Kali were recorded u/s. 161 Cr. P.C by him. He further deposed that Ram Kumar(Respondent no.1) was also examined by him who stated that deceased Lala Ram had been working as labourer on offending vehicle and on 30.03.2015, he had transported construction waste material from Pitam Pura to a vacant plot at Village Hamidpur, Alipur, Delhi. He further deposed that respondent no. 1 further disclosed him that on that day at about 8 pm, when they had ferried the last round and he was reversing his tempo to unload the construction waste inside the said plot, deceased Lala Ram sustained major injuries due to hit by his tempo. He further deposed that respondent no. 1 further disclosed him that Deepak and Chainu @ Chenpal were also present there and they all noticed the injuries and bleeding of deceased Lala Ram and he (Ram Kumar) asked them to help him in shifting Lala Ram into his tempo. He further deposed that respondent no. 1 alongwith other labourers Suresh left the spot with deceased Lala Ram on the pretext of taking him to the hospital and on the way, he and Suresh got paniced as deceased Lala Ram had suffered deep injuries on his face due Smt. Shyam Kali & Ors Vs.Ram Kumar & Ors. Page 8 of 31 MACP No. 5065/16; FIR No. 397/15; PS.S.P. Badli DOD: 11.10.2022 to which they dumped the body of Lala Ram in an open plot in the area of PS. Kundli, Sonepat. He further deposed that offending vehicle was found parked near the house of Ram Kumar(Respondent no.1) which was taken into possession vide seizure memo which was already part of DAR. He also deposed that Ram Kumar(Respondent no.1) accompanied them to the place of incident and identified the open plot in which construction waste material was lying. He further deposed that the construction waste was removed and blood stained earth material and other exhibits were lifted therefrom and seized. He further deposed that offending vehicle was also got inspected by FSL team and blood stains were also lifted therefrom and the same were also seized. He further deposed that statement of witnesses including eyewitnesses namely Deepak and Chenpal were recorded by him. He deposed that the eyewitnesses in their statements stated that deceased Lala Ram had sustained injuries due to hit by the offending vehicle driven by Ram Kumar(Respondent no. 1) and thereafter, he was arrested. He further deposed that during investigation, section 279 IPC was added and section 302 IPC was amended to Section 304 IPC and section 364A was also removed. He further deposed that after completion of investigation, the chargesheet in FIR No.397/15 was filed u/s. 279/304/201/34 IPC against Ram Kumar. He also deposed that after completion of investigation, he had filed Detailed Accident Report(DAR) before this Tribunal.
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13. During his crossexamination by insurance company, he deposed that the dead body of deceased Lala Ram had been recovered by official of PS. Kundli, Haryana. He admitted that the dead body of deceased Lala Ram had not been recovered by him. He denied the suggestion that he had filed the chargesheet u/s. 279/304/201 IPC against Ram Kumar(Respondent No.1) by manipulating the facts. He further denied the suggestion that both the eyewitnesses namely Deepak and Chenpal were manipulated and planted witnesses. He further deposed that the cause of death was mentioned in postmortem report, however, a subsequent opinion was obtained about the injuries. He further deposed that the postmortem of the deceased was got conducted by the police official of PS. Kundli, Haryana. He further deposed that during investigation, the name of eyewitnesses namely Deepak and Chenpal emerged through the interrogation of Ram Kumar(Respondent No.1) and they himself corroborated the facts in their respective statements. He denied the suggestion that he had prepared the site plan as per his own will. He further denied the suggestion that he had filed the chargesheet in connivance with Ram Kumar(Respondent no.1) to save him from the henious charge of offence u/s. 302 IPC.
14. Ld. Counsel for petitioners has heavily relied upon the criminal case record (which is part of DAR Ex. PW1/1 colly) in order to bring home his point that the accident in question had occurred due to the negligent act Smt. Shyam Kali & Ors Vs.Ram Kumar & Ors. Page 10 of 31 MACP No. 5065/16; FIR No. 397/15; PS.S.P. Badli DOD: 11.10.2022 of respondent no. 1. He further argued that respondent no. 1 was also chargesheeted by police for offences punishable U/s 279/304/201/34 IPC, which clearly establishes that the accident had occurred due to rash and negligent driving of offending vehicle by respondent no. 1. Ld. Counsel for petitioners also relied upon copy of judgment passed in the criminal case, wherein respondent no. 1 has been convicted for offences punishable u/s. 279/304A/201 IPC by the court of Ld. ASJ - 02 (North), Rohini, Delhi on 29.07.2022.
15. On the other hand, Ld. counsel for insurance company vehemently argued that PW2 Inspector Naresh Malik is undisputedly not an eye witness of the accident in question and no eye witness has been examined by petitioners during the course of inquiry. He, therefore, contended that the petitioners have failed to prove that the accident in question had been caused due to rash and negligent driving of offending vehicle by respondent no. 1. He further argued that since FIR in the present case was filed u/s. 302/364/201 IPC, present DAR is not maintainable as it is the case of murder not road traffic accident.
16. Instead of referring to the series of decisions on the point in issue, it may be noted that it is well settled legal position as laid down by Hon'ble Apex Court as well as by various High Courts in plethora of judgments delivered from time to time that in claim petitions preferred U/s Smt. Shyam Kali & Ors Vs.Ram Kumar & Ors. Page 11 of 31 MACP No. 5065/16; FIR No. 397/15; PS.S.P. Badli DOD: 11.10.2022 160/144 M.V Act, the claimants have to prove on the basis of preponderance of probabilities that accident was caused due to rash and negligent driving of alleged offending vehicles by its drivers. At the same time, it is no more resintegra that claim petition filed under relevant provisions of M.V Act, is the outcome of social welfare legislation and the proceedings are summary in nature and do not require strict compliance of rules of evidence and pleadings. It needs no emphasis that in case replies filed by respondents, are evasive then it is deemed that they have admitted the averments made by the claimants. The purpose of granting compensation is to ameliorate the sufferings of the victims of Motor Vehicle Accidents and the niceties, hyper technicalities, procedural wrangles and tangles and mystic maybes have no role to play and same should not be any ground to dismiss the claim petitions and to defeat the rights of the claimants. While saying so, I am fortified by the decisions rendered by Hon'ble Apex Court in the cases titled as " N.KV. Bros (P) Ltd Vs. M. Karumai Ammal", 1980 ACJ 435 (SC); " Sohan Lal Passi Vs. P. Sesh Reddy", 1996 ACJ 1044 (SC) and " Dulcina Fernandes Vs. Joaquim Xavier Cruz", 2013 ACJ 2712 (SC). It is also relevant to mention here that while deciding claim petition under M.V Act, it is the duty of Claims Tribunal to follow the principles of justice, equity and good conscience and to adopt more realistic, pragmatic and liberal approach.
Smt. Shyam Kali & Ors Vs.Ram Kumar & Ors. Page 12 of 31MACP No. 5065/16; FIR No. 397/15; PS.S.P. Badli DOD: 11.10.2022
17. The aforesaid issue also came up for discussion before Hon'ble Apex Court in the case of "Vimla Devi & Ors. Vs. National Insurance Company Limited & Ors.", Civil Appeal No. 11042 of 2018, decided on 16.11.18. After referring to the previous judicial precedents on the point in issue and the fact that M.V. Act is a social welfare legislation, Hon'ble Apex Court held in para 29 of its judgment as under: "xxxxx
29. In our view, what more documents could be filed then the documents filed by the appellants to prove the factum of the accident and the persons involved therein.
xxxxx"
18. In the above cited decision, the claimants had not examined any eyewitness. Still, Hon'ble Apex Court held that in view of filing of criminal case record including chargesheet showing that driver of alleged offending vehicle had been chargesheeted for causing the accident due to rash and negligent driving of said vehicle and the driver himself did not enter into witness box, claimants were able to prove the issue of accident being caused due to rash and negligent driving of said vehicle by said driver on the basis of preponderance of the probabilities.
19. While advancing the arguments, Ld. counsel for petitioners vehemently relied upon the decision passed by Hon'ble Karnataka High Court in the case of "Manjula & Ors. Vs. Srinivas & Ors.", M.F.A No. Smt. Shyam Kali & Ors Vs.Ram Kumar & Ors. Page 13 of 31 MACP No. 5065/16; FIR No. 397/15; PS.S.P. Badli DOD: 11.10.2022 4212 of 2011(MV), decided on 18.06.2013 in order to bring home his point that present case is maintainable even if the FIR in the present case was initially filed u/s. 302/364/201 IPC. On the other hand, Ld. counsel for insurance company argued that since it is the case of murder, insurance company can not be saddled with the liability to pay the compensation amount to the petitioners.
20. In order to appreciate the aforesaid rival submissions made on behalf of both the sides, it would be appropriate to refer to the provision contained in Section 165(1) of the Motor Vehicles Act, which reads as under: "165(1) A State Government may, by notification in the Official Gazette, constitute one or more Motor Accidents Claims Tribunals (hereafter in this Chapter referred to as Claims Tribunal) for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both "
21. Furthermore, under Section 165 of the Act, Tribunals are constituted to adjudicate upon claims for compensation in respect of accidents involving the death of or bodily injury to persons arising out of the use of motor vehicles. The intention of user of motor vehicle is not relevant to decide a claim petition filed u/s. 166 of the Act.
Smt. Shyam Kali & Ors Vs.Ram Kumar & Ors. Page 14 of 31MACP No. 5065/16; FIR No. 397/15; PS.S.P. Badli DOD: 11.10.2022
22. Somewhat similar issue come up for consideration before Hon'ble Patna High Court in the matter "Ranju Devi & Ors. Vs. Pawan Kumar Patwari & Ors.", M.A. No. 347 of 1999, decided on 09.10.2002. In the said case, the deceased was killed by criminals who tried to snatch his bag while he was travelling in a bus. The FIR in the said matter was recorded for offences under Dacoity and Murder. A petition seeking compensation under M.V. Act was dismissed by the Ld. MACT as not maintainable, however, the Hon'ble High Court was pleased to hold as under: xxxxxx
5. In view of the principle laid down in the case of Rita Devi v. New India Assurance Co.
Ltd., 2000 ACJ 801 (SC), learned counsel for respondent insurance company has not been able to defend the impugned order. The stand of the company before the learned Tribunal was that the deceased did not die in the motor accident rather he was killed by the criminals, who tried to snatch his bag while he was travelling in the bus. The F.I.R.
was also lodged under Sections 394/302, Indian Penal Code and Section 27 of the Arms Act. It is nobody's case that the Smt. Shyam Kali & Ors Vs.Ram Kumar & Ors. Page 15 of 31 MACP No. 5065/16; FIR No. 397/15; PS.S.P. Badli DOD: 11.10.2022 dominant intention of the act of felony in the present case was to kill the deceased. The cause of murder or act of murder was originally not intended and the same was caused in furtherance of commission of dacoity, which, according to the Apex Court, is an accidental murder, and covered by the provisions of the Motor Vehicles Act for award of compensation.
xxxxx
23. In Manjula & Ors. Vs. Sri Niwas & Ors., reported as IV (2014) ACC 598, a claim petition under M.V. Act was filed before MACT on the ground that the deceased was run over by a Bus intentionally after altercation but the same was dismissed by the Tribunal on the ground of maintainability. However, in an appeal filed against the said order, The Hon'ble Karnataka High Court has been pleased to hold as under:
xxxxxx Para 12: Under section 165 of the Act, Tribunals are constituted to adjudicate upon claims for compensation in respect of accidents involving Smt. Shyam Kali & Ors Vs.Ram Kumar & Ors. Page 16 of 31 MACP No. 5065/16; FIR No. 397/15; PS.S.P. Badli DOD: 11.10.2022 the death of or bodily injury to persons arising out of the use of motor vehicles.
The intention of user of motor vehicle is not relevant to decide a claim petition filed under section 166 of the Act.
It is needless to state that Motor Vehicles Act is a species of law of torts enacted to provide compensation to injured/victims of tortuous liability, arising out of use of motor vehicle. The tort is a civil wrong independent of contract. The facts producing it may or may not also constitute an offence punishable by public authority. The same set of circumstances will, in fact, from one point of view, constitute a tort, while, from another point of view, amount to a crime.
Para 13: The learned counsel for Insurance Company would submit that in the absence of proof of rash and negligent act, Insurance Company cannot be called upon to satisfy Smt. Shyam Kali & Ors Vs.Ram Kumar & Ors. Page 17 of 31 MACP No. 5065/16; FIR No. 397/15; PS.S.P. Badli DOD: 11.10.2022 liability though such liability had arisen by user of motor vehicle on public road.
Para 14: In my considered opinion, this submission is not tenable. An act may be a tort or a crime. An act may give raise to civil or criminal liability. If tort is made punishable under penal code, it does not absolve tortfeasors of their liability under common law. In order to claim damages under section 166 of the Act, it is not necessary to prove that there was no criminal intent behind user of motor vehicle.
Para 15: The learned Judge of Tribunal without noticing distinction between proceedings under section 166 of the Act and proceedings before the Criminal Court has erroneously held that findings recorded by Tribunal may interfere with criminal trial pending against accused. The proceedings under Section 166 of the Act are summary proceedings. The findings recorded by the Tribunal are not binding on Criminal Court.
xxxxxx
24. In view of the law laid down in the aforesaid judgments, it is abundantly clear that even for want of invocation of Section 304A, the petition for claim is maintainable if the death is caused by the use of motor vehicle in a rash and negligent manner.
Smt. Shyam Kali & Ors Vs.Ram Kumar & Ors. Page 18 of 31MACP No. 5065/16; FIR No. 397/15; PS.S.P. Badli DOD: 11.10.2022
25. After following the principles of law discussed in the aforecited decisions and taking guidance from these decisions, I am of the view that present case is very much maintainable.
26. Moreover, the respondent no.1 was the other material witness to throw light by testifying as to how and under what circumstances, the accident had taken place. However, he preferred not to enter into witness box during the course of inquiry. Thus, an adverse inference is liable to be drawn against him to the effect that the accident in question occurred due to rash and negligent driving of offending vehicle by him.
27. It is an undisputed fact that FIR No. 397/15 (supra) was registered at PS. S.P. Badli with regard to accident in question. Copy of said FIR as also the copy of charge sheet arising out of said FIR(which are part of DAR), would show that FIR was registered on 01.04.2015 (accident being caused on 30.03.2015).
28. Not only this, the respondent no. 1 has been convicted for offences punishable U/s 279/304A/201 IPC by the Ld. ASJ02, North, Rohini, after arriving at the conclusion on the basis of investigation carried out by police and evidence lead in the matter that the accident in question had occurred due to rash and negligent driving of offending vehicle by him.
Smt. Shyam Kali & Ors Vs.Ram Kumar & Ors. Page 19 of 31MACP No. 5065/16; FIR No. 397/15; PS.S.P. Badli DOD: 11.10.2022
29. Further, copy of PM Report (which is also part of DAR) of deceased, would show that cause of death of deceased was shock and haemorrhage due to the injuries described in the PMR which were antemortem in nature and sufficient to cause death in normal course of nature. The external injuries as mentioned in the relevant column correspond with the injuries which occur in Motor Vehicular Accident. Said documents have not been disputed from the side of respondents and corroborate the ocular testimony of PW2 as discussed above.
30. 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 preponderance of probabilities that Lala Ram had sustained fatal injuries in road accident which took place on 30.03.2015 at time unknown in the early morning hours at a Road of Village Hamidpur, Delhi, due to rash and negligent driving of offending vehicle by respondent no. 1. Thus, issue no.1 is decided in favour of petitioners and against the respondents.
ISSUE NO. 231. Section 168 of the Act enjoins the Claims Tribunal to hold an inquiry into the claim to make an award determining the amount of Smt. Shyam Kali & Ors Vs.Ram Kumar & Ors. Page 20 of 31 MACP No. 5065/16; FIR No. 397/15; PS.S.P. Badli DOD: 11.10.2022 compensation which appears to it to be just and reasonable. It has to be borne in mind that the compensation is not expected to be a windfall or a bonanza nor it should be niggardly.
LOSS OF DEPENDENCY
32. The claimants/petitioners are the widow and children of deceased. PW1 Smt. Shyam Kali has deposed in her evidence by way of affidavit Ex. PW1/A that her husband was aged about 40 years; he was working as labourer with Respondent no. 1 and was earning about Rs. 15,000/per month at the time of accident. She further deposed that all the petitioners were dependent upon the deceased at the time of accident. She has relied upon the DAR exhibited as Ex. PW1/1(colly).
33. During her cross examination on behalf of insurance company, she denied the suggestion that her husband was not aged about 40 years at the time of accident. She further denied the suggestion that her husband was not earning Rs. 15,000/ per month.
34. 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 in order to calculate the loss of dependency. He however argued that future prospects may also be awarded to the petitioners as per law.
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35. As already noted above, PW1 Smt. Shyam Kali, who is widow of deceased has failed to file any document in her evidence to show that her deceased husband was earning Rs. 15,000/ per month at the time of accident. 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 an unskilled worker under Minimum Wages Act applicable during the relevant period. The minimum wages of an unskilled worker were revised as Rs. 9,048/ w.e.f. 01.04.2015. The accident in question had occurred on 30.03.2015 i.e. just 1 day before the date from which minimum wages were revised by the government. In these facts and circumstances, I am inclined to take the minimum wages at the rate of Rs. 9,048/in order to calculate loss of income under this head. (Reliance placed on unreported decision in the matter titled as "THE ORIENTAL INSURANCE CO.LTD. Vs. CHHOTEY LAL & ORS. ", in MAC. APP. 1074/2016 decided on 15.05.2017 by Hon'ble Delhi High Court.)
36. As per the case of petitioners, deceased Lala Ram was aged about 40 years at the time of accident. It is pertinent to note that petitioners have filed copy of Aadhaar Card (which is part of DAR Ex. PW1/1 colly) of deceased, wherein date of birth of deceased is mentioned as 01.01.1977. The respondents have not led any evidence in order to controvert the said Smt. Shyam Kali & Ors Vs.Ram Kumar & Ors. Page 22 of 31 MACP No. 5065/16; FIR No. 397/15; PS.S.P. Badli DOD: 11.10.2022 age of deceased as claimed by the petitioners. Thus, the age of deceased is taken as 38 years at the time of accident. Hence, the multiplier of 15 would be applicable in view of pronouncement made by Constitutional Bench of Apex Court in the case titled as "National Insurance Company Ltd. Vs. Pranay Sethi & Ors." passed in SLP(Civil) No. 25590/14 decided on 31.10.17.
37. Considering the fact that deceased was aged about 38 years at the time of accident and 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." mentioned supra, as well as in view of decision of Hon'ble Delhi High Court in appeal bearing MAC APP No. 798/2011 titled as "Bajaj Allianz General Insurance Company Ltd. Vs. Pooja & Ors", decided on 02.11.17.
38. It is relevant to note here that there were eight petitioners in the present case i.e. widow, six children and mother of deceased. However, during the course of pendency of present case, mother of deceased had expired. Thus, I am of the view that mother of deceased should also be considered as dependent upon the deceased at the time of accident. It has been fairly conceded by Ld. Counsel for petitioners that petitioner no. 2 Smt. Gyanwati was married at the time of accident. In view of the Smt. Shyam Kali & Ors Vs.Ram Kumar & Ors. Page 23 of 31 MACP No. 5065/16; FIR No. 397/15; PS.S.P. Badli DOD: 11.10.2022 aforesaid, it is held that there were seven dependents upon the deceased at the time of accident. Hence, there has to be deduction of one fifth as held in the case of Sarla Verma mentioned supra. Thus, the total of loss of dependency would come out to Rs. 18,24,076.80 paise (Rs. 9,048/ X 4/5 X 140/100 X 12 X 15). Hence, a sum of Rs. 18,24,000/ (rounded off) is awarded under this head in favour of the petitioners.
LOSS OF LOVE & AFFECTION
39. After the celebrated judgment of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors. mentioned supra and recent judgment titled New India Assurance Company Limited versus Somwati & Ors., Civil Appeal no. 3093 of 2020 dated 07.09.2020 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", mentioned 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.
LOSS OF CONSORTIUM Smt. Shyam Kali & Ors Vs.Ram Kumar & Ors. Page 24 of 31 MACP No. 5065/16; FIR No. 397/15; PS.S.P. Badli DOD: 11.10.2022
40. In view of the judgment of Hon'ble Supreme Court in case titled as New India Assurance Company Limited versus Somwati & Ors., Civil Appeal no. 3093 of 2020, dated 07.09.2020 I am of the considered opinion that the widow, six children and mother of deceased are entitled for payment of Rs. 40,000/ each towards loss of consortium. Consequently, a sum of Rs. 3,20,000/ is awarded to the petitioners under this head.
LOSS OF ESTATE & FUNERAL EXPENSES
41. 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. Vs. Pranay Sethi & Ors." mentioned supra, a sum of Rs. 15,000/ each is awarded in favour of petitioners on account of loss of estate and funeral expenses.
The total compensation is assessed as under:
1. Loss of dependency Rs. 18,24,000/
2. Loss of consortium Rs. 3,20,000/
3. Loss of Estate & Funeral Rs. 30,000/ Expenses Total Rs. 21,74,000/
42. Now, the question which arises for determination is as to which of the respondents is liable to pay the compensation amount. Respondent no. 2/insurance company did not adduce any evidence. It is nowhere the Smt. Shyam Kali & Ors Vs.Ram Kumar & Ors. Page 25 of 31 MACP No. 5065/16; FIR No. 397/15; PS.S.P. Badli DOD: 11.10.2022 case of insurance company that any term or condition of insurance policy was breached/violated by insured. Keeping in view the existence of valid insurance policy, respondent no. 2/insurance company becomes liable to pay the compensation amount, as insurance company is liable to indemnify the insured. Issue no. 2 is decided accordingly.
ISSUE NO. 3 RELIEF
43. In view of my finding on issues no. 1 & 2, I award a sum of Rs. 21,74,000/ (including interim award amount if any) alongwith interest @ 9% per annum w.e.f date of filing the claim petition i.e. 13.07.2015 (except for the period of delay w.e.f. 10.01.2019 to 01.07.2019) till the date of its realization, in favour of Lrs of deceased/petitioners and against the respondents(Reliance placed on judgment "Oriental Insurance Company Ltd. Vs. Sangeeta Devi & Ors" bearing MAC. APP. 165/2011 decided on 22.02.2016).
APPORTIONMENT
44. Statements of petitioners in terms of Clause 29 MCTAP were recorded on 04.02.2021 & 16.03.2021. Having regard to the facts and circumstances of the case and in view of statement of petitioners, it is hereby ordered that out of total compensation amount, the petitioner no. 1 Smt. Shyam Kali & Ors Vs.Ram Kumar & Ors. Page 26 of 31 MACP No. 5065/16; FIR No. 397/15; PS.S.P. Badli DOD: 11.10.2022 Smt. Shyam Kali (widow of deceased) shall be entitled to share amount of Rs. 11,34,000/ (Rupees Eleven Lakhs and Thirty Four Thousand Only) alongwith proportionate interest, the petitioner no. 2 Smt. Gyanwati shall be entitled to share amount of Rs. 40,000/(Rupees Forty Thousand Only) alongwith proportionate interest and petitioners no. 3 to 7 namely Soni, Shanti, Neha, Kumkum and Ankit respectively shall be entitled to share amount of Rs. 2,00,000/each (Rupees Two Lakhs Only) alongwith proportionate interest.
45. Out of share amount of petitioner no. 1, a sum of Rs. 3,00,000/ (Rupees Three Lakhs Only) shall be immediately released to her through her saving bank account no. 3503000100230407 with Punjab National Bank, District Badaun, UP, having brach Code 3503 and remaining amount alongwith interest amount are directed to be kept in the form of FDRs in the multiples of Rs. 25,000/ each for one month, two months, three months and so on and so forth having cumulative interest.
46. The entire share amount of petitioners no. 2 to 5 is directed to be immediately released to them through their respective saving bank accounts no. saving bank account no. 7327000100123752 (of Gyanwati) with Punjab National Bank, Village Chandpur Salis, Rampur, UP, having IFSC Code PUNB0732700, no. 3503000100230416(of Soni), no. 3503000100230443(of Shanti) and no. 3503000100230434(of Neha) with Smt. Shyam Kali & Ors Vs.Ram Kumar & Ors. Page 27 of 31 MACP No. 5065/16; FIR No. 397/15; PS.S.P. Badli DOD: 11.10.2022 Punjab National Bank, Wazirganj, District Badaun, UP, having IFSC Code PUNB0350300.
47. The entire share amount alongwith proportionate interest of petitioner no. 6 & 7 be kept in FDR for the period till they attain the age of majority and thereafter a sum of Rs. 1,00,000/each shall be released to her and remaining amount alongwith interest 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. The petitioner no. 6 & 7 are at liberty to withdraw their monthly interest in order to meet their educational expenses through their mother/natural guardian.
48. 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).
Smt. Shyam Kali & Ors Vs.Ram Kumar & Ors. Page 28 of 31MACP No. 5065/16; FIR No. 397/15; PS.S.P. Badli DOD: 11.10.2022
(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 Smt. Shyam Kali & Ors Vs.Ram Kumar & Ors. Page 29 of 31 MACP No. 5065/16; FIR No. 397/15; PS.S.P. Badli DOD: 11.10.2022 (MACAD) Scheme account as directed by Hon'ble Delhi High Court vide order dated 07.12.18, on completing necessary formalities as per rules.
49. Respondent no. 2/The Oriental Insurance Co. Ltd., being insurer of the offending vehicle, 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 aforesaid saving 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 & XVII in terms of MCTAP are annexed herewith as AnnexureA. Copy of order be also sent to concerned M.M and DLSA as per clause 31 and 32 of MCTAP.
Announced in the open Court on 11.10.2022 Smt. Shyam Kali & Ors Vs.Ram Kumar & Ors. Page 30 of 31 MACP No. 5065/16; FIR No. 397/15; PS.S.P. Badli DOD: 11.10.2022 (VINOD YADAV) Judge MACT2 (North) Rohini Courts, Delhi Certified that above award contains 31 pages and each page is signed by me.
(VINOD YADAV) Judge MACT2 (North) Rohini Courts, Delhi Smt. Shyam Kali & Ors Vs.Ram Kumar & Ors. Page 31 of 31