Delhi District Court
Shanti Devi vs Amit on 26 September, 2023
Shanti Devi Vs. Amit & Ors. Page 1 of 42
IN THE COURT OF MS. JASJEET KAUR, PRESIDING OFFICER,
MOTOR ACC1IDENT CLAIMS TRIBUNAL, NORTH WEST
DISTRICT, ROHINI COURTS, DELHI
New No.49904-2016
UNIQUE ID No.: DLNW01-000378-2011
Smt. Sita W/o Sh. Manoj,
R/o Kh. No. 269, 272-273,
Ground Floor, Block-J,
Bhagat Singh Park, Near Chandi Mandir,
Village Siraspur, North West,
Delhi.
........ Petitioner/Claimant
Vs.
1. Sh. Amit S/o Sh. Ram Chander,
R/o H.No. 288/24, Krishanpura,
Panipat, Haryana.
....... Driver/R1
2. Sh. Tilak Raj S/o Sh. Mange Ram,
R/o H.No. 2358, Shivaji Nagar,
Teachers Colony, Narela,
Delhi.
....... Owner/R2
3. Reliance General Insurance Company,
....... Insurance/R3
..... Respondents
Other details
DATE OF INSTITUTION : 13.07.2011
DATE OF RESERVING JUDGMENT : 26.09.2023
DATE OF PRONOUNCEMENT : 26.09.2023
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FORM - V
1. COMPLIANCE OF THE PROVISIONS OF THE MODIFIED
CLAIMS TRIBUNAL AGREED PROCEDURE TO BE
MENTIONED IN THE AWARD AS PER FORMAT REFERRED IN
THE ORDER PASSED BY THE HON'BLE DELHI HIGH COURT
IN FAO 842/2003 RAJESH TYAGI Vs. JAIBIR SINGH & ORS.
VIDE ORDER DATED 07.12.2018.
1. Date of the accident 28.05.2011
2. Date of intimation of the accident by the 13.07.2011
investigating officer to the Claims Tribunal
3. Date of intimation of the accident by the 13.07.2011
investigating officer to the insurance company.
4. Date of filing of Report under section 173 Not mentioned in
Cr.P.C. before the Metropolitan Magistrate the DAR
5. Date of filing of Detailed Accident Information 13.07.2011
Report (DAR) by the investigating Officer
before Claims Tribunal
6. Date of Service of DAR on the Insurance 13.07.2011
Company
7. Date of service of DAR on the claimant (s). 13.07.2011
8. Whether DAR was complete in all respects? Yes
9. If not, whether deficiencies in the DAR N/A
removed later on?
10. Whether the police has verified the documents Yes.
filed with DAR?
11. Whether there was any delay or deficiency on N/A
the part of the Investigating Officer? If so,
whether any action/direction warranted?
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12. Date of appointment of the Designated Officer 13.07.2011
by the insurance Company.
13. Name, address and contact number of the Sh. A.K. Singh, Ld.
Designated Officer of the Insurance Company. Counsel for the
insurance company
14. Whether the designated Officer of the No
Insurance Company submitted his report
within 30 days of the DAR? (Clause 22)
15. Whether the insurance company admitted the Legal offer filed, but
liability? If so, whether the Designated Officer not fairly computed
of the insurance company fairly computed the
compensation in accordance with law.
16. Whether there was any delay or deficiency on No
the part of the Designated Officer of the
Insurance Company? If so, whether any
action/direction warranted?
17. Date of response of the claimant (s) to the offer No response has
of the Insurance Company . given by the legal
heirs of the deceased
18. Date of the Award 26.09.2023
19. Whether the award was passed with the No
consent of the parties?
20. Whether the claimant(s) were directed to open Yes
saving bank account(s) near their place of
residence?
21. Date of order by which claimant(s) were 19.03.2019
directed to open saving bank account (s) near
his place of residence and produce PAN Card
and Aadhar Card and the direction to the bank
not issue any cheque book/debit card to the
claimant(s) and make an endorsement to this
effect on the passbook(s).
22. Date on which the claimant (s) produced the 19.04.2022
passbook of their saving bank account near the
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place of their residence along with the
endorsement, PAN Card and Aadhar Card?
23. Permanent Residential Address of the As mentioned above
Claimant(s)
24. Details of saving bank account(s) of the Petitioner Smt. Sita
claimant(s) and the address of the bank with W/o Sh. Manoj,
IFSC Code savings bank a/c
No.3328810001763
4 with Bank of
Baroda, Jahangirpuri
Branch, Delhi
IFSC :
BARBOJAHANG
25. Whether the claimant(s) saving bank Yes
account(s) is near his place of residence?
26. Whether the claimant(s) were examined at the Yes
time of passing of the award to ascertain
his/their financial condition.
27. Account number/CIF No, MICR number, IFSC 41065170303,
Code, name and branch of the bank of the 110002427,
Claims Tribunal in which the award amount is SBIN0010323, SBI,
to be deposited/transferred. (in terms of order Rohini Courts, Delhi
dated 18.01.2018 of Hon'ble Delhi High Court
in FAO 842/2003 Rajesh Tyagi vs Jaibir Singh.
JUDGMENT
1. The present claim proceedings have emanated from a Detailed Accident Report (hereinafter referred to as DAR) filed on 13.07.2011 with reference to FIR No.90/2011 registered at PS Bhalswa Dairy in respect of commission of offences of causing hurt by rash and negligent driving of a motor vehicle on a public road punishable U/s 279/337 of Indian Penal Code, 1860 (hereinafter referred to as IPC) wherein subsequent charge sheet Shanti Devi Vs. Amit & Ors. Page 4 of42 Shanti Devi Vs. Amit & Ors. Page 5 of 42 for the commission of offences of causing grievous hurt by rash and negligent driving of a motorcycle vehicle on a public road punishable u/s 279/338 IPC against driver, namely, Amit was also filed in respect of grievous injuries sustained by injured/petitioner Shanti Devi and her friend Maya Devi (hereinafter referred to as the petitioner/injured) in a road traffic accident. The learned predecessor Court had vide order dated 13.07.2011 treated the DAR as a petition u/s 166(4) of the M.V. Act).
2. The brief facts of the case as discernible from the DAR are that on 28.05.2011 the petitioner/injured Shanti Devi along with her friend, namely, Smt. Maya Devi were going on foot and at about 8:50 am, while crossing the road in front of Libaspur Bus Stand, Delhi, a car bearing registration No. DL7C-B-8388 (hereinafter referred to as the offending vehicle), which was being driven rashly and negligently by its driver, namely, Amit (hereinafter referred as to the driver of the offending vehicle/respondents no.1/R1) had hit the petitioner/injured Smt. Shanti Devi along with her friend Smt. Maya Devi from behind due to which the petitioner/injured Shanti Devi had sustained severe head injury and had also sustained various abrasions, wounds and other grievous injuries all over her body for treatment of which she was shifted to Babu Jagjiwan Ram Memorial Hospital, Delhi (hereinafter referred to as BJRM Hospital) where she was medically examined vide MLC No.26082/2011 whereby she was referred to High Center for NCCT Head after giving an opinion to the effect that she had sustained grievous injuries from the neurological point of view. Subsequently, the petitioner had remained admitted at Sushruta Trauma Centre, Delhi with effect from 28.05.2011 and was discharged therefrom on Shanti Devi Vs. Amit & Ors. Page 5 of42 Shanti Devi Vs. Amit & Ors. Page 6 of 42 04.06.2011 after conservative treatment for management of subarachnoid hemorrhage (SAH) in left temporal region alongwith hemorrhagic contusion in right temporal frontal region. Subsequently, the petitioner was again admitted at Sushrut Trauma Center on 10.06.2011 and was discharged therefrom on 15.06.2011 after conservative treatment for the above mentioned neurological injuries. Thereafter, the petitioner had been admitted on 17.06.2011 at Guru Nanak Eye Centre, New Delhi where during her treatment, NCCT Head was conducted, which showed SAH in left temporal region along with hemorrhagic contusions in right temporal frontal region for treatment of which she was referred to Neurosurgery Department of Govind Ballabh Pant Hospital. After the required treatment, she was discharged (G B Pant) hospital on 21.06.2011. Thereafter, on 22.06.2011, again the injured/petitioner was admitted in Sushruta Trauma Centre, Delhi, where during her treatment NCCT Head was again conducted and she was managed conservatively before being discharged on 20.07.2011 with the advice for review in OPD. Subsequently, on 21.07.2011, due to eye swelling, the petitioner/injured was referred to Guru Nanak Eye Centre, New Delhi where NCCT Head, where MRI Brain & Orbit were conducted, and the petitioner had undergone evisceration surgery in right eye under local anesthesia for management of pan ophthalmitis and pthisis bulbi of left eye with severe upper lip swelling, severe proptosis, restricted eye movement in all gazes and conjectivital kimosis and nuco purulent discharge as well as corneal melt and after the required treatment, she was discharged on 22.07.2011 with advice for review in OPD. However, thereafter on 26.07.2011, the injured had expired.
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2.1 The postmortem on the dead body of the deceased was conducted by
Dr. Vivek Rawat, Senior Resident, BJRM Hospital, Jahangir Puri, Delhi vide Postmortem Report (PMR) No. 683/2011 dated 27.07.2011 wherein the cause of death was bilateral consolidation of lungs, a natural cause of death.
3. R1/Amit S/o Sh. Ram Chander, who was the driver of the offending vehicle (hereinafter referred to as the driver of the offending vehicle/respondent no.1/R1) and Sh. Tilak Raj S/o Sh. Mange Ram, who was the owner of the offending vehicle (hereinafter referred to as the respondent no.2/R2) have not filed their written statement in support of their version of the case.
4. Reliance General Insurance Company Limited, the insurer of the offending vehicle (hereinafter referred to as the insurance company/R3 of the offending vehicle) had filed its legal offer to settle the matter by paying a sum of Rs.24,000/- to the petitioner (legal heirs of deceased) apart from reimbursing her medical bills, however, the said offer was not acceptable to the petitioner.
5. At the stage of final arguments, it had come to the notice of this court that inadvertently learned Predecessor Court had failed to frame issues in the present matter. Accordingly, on the basis of pleadings of the parties, the following issues were framed by this court vide order dated 26.09.2023:-
(1) Whether on 28.05.2011 at about 8:50 am at the crossing of Main G.T. Karnal Road, in front of Libaspur Bus Stand, Delhi, one Car bearing registration No. DL7C-B-8388 being driven by R1 Amit Kumar S/o Ram Chander in a rash and negligent manner, at a very high speed had hit Smt. Shanti Devi and caused her death? OPP (2) Whether petitioners are entitled to compensation, if so, to what amount and Shanti Devi Vs. Amit & Ors. Page 7 of42 Shanti Devi Vs. Amit & Ors. Page 8 of 42 from whom? OPP (3) Relief.
6. Petitioners/claimants had examined five witnesses including Dr. Vivek Rawat, Senior Resident, BJRM Hospital, Jahangir Puri, Delhi as PW1, Smt. Sita W/o Sh. Manoj Kumar as PW2, Smt. Maya Devi W/o Sh. Prem Bahadur as PW3, Sh. Sanjay Sharma S/o Late Sh. Khacheru Singh as PW4 and Dr. P.N. Pandey, HOD (Neuro), LNJP Hospital, New Delhi as PW5 in support of their case. No other witness has been examined by the petitioners/claimants in support of their version of the case.
6.1 A perusal of the court record reveals that R1 and R2 have not examined any witness in support of their respective versions of the case.
6.2 A perusal of the court record reveals that R3/insurance company has also not examined any witness in support of its version of the case.
6.3 I have heard the final arguments addressed by Sh. B.K. Poddar, learned counsel for the petitioners and Sh. A.K. Singh, learned counsel for the insurance company/R3. None had appeared on behalf of R1 and R2 for addressing final arguments. My issue-wise findings based on my appreciation of the evidence led by the parties in support of their respective versions of the case are reproduced herein below.
7. Issue wise findings are as under:-
ISSUES No. 1(1) Whether on 28.05.2011 at about 8:50 am at the crossing of Main G.T. Karnal Road, in front of Libaspur Bus Stand, Delhi, one Car bearing registration No. DL7C-B-8388 being driven by R1 Amit Kumar S/o Ram Chander in a rash and negligent manner, at a very high speed had hit Smt. Shanti Devi and caused her death? OPP Shanti Devi Vs. Amit & Ors. Page 8 of42 Shanti Devi Vs. Amit & Ors. Page 9 of 42 The onus to prove this issue beyond preponderance of probabilities is upon the petitioners/claimants.
7.1 Petitioners/claimants had examined Dr. Vivek Rawat, Senior Resident, Babu Jagjiwan Ram Memorial Hospital, Jahangirpuri, Delhi as PW1, who had stated that he had conducted the postmortem on the body of the victim Smt. Shanti Devi, 43 year old, female on 27.07.2011 at the request of SI Kamlesh Kumar of PS Bhalswa Dairy. He further deposed that on external examination, no apparent antemortem injuries had been noticed by him in the body of the deceased. He stated that on internal examination, brain of the deceased was found to be edematous with bilateral subdural hygroma over both parieto temporal lobes and cortical atrophy was also noticed by him in both parietal lobes. He further stated that bilateral consolidation of lower lobes of lungs had also been observed by him with red heaptisation. He also stated that according to his opinion, the cause of death of victim Shanti Devi was bilateral consolidation of lungs which was a natural cause. He deposed that the case accident had taken place on 28.05.2011 and NCCT of Head of the deceased was found to be abnormal on 28.05.2011, that is, on the date of accident. He stated that repeat NCCT Head performed on 16.06.2011 was normal, however, MRI brain conducted on 28.06.2011 showed sub dural hygroma with tuberculoma. He clarified that the case accident had taken place on 28.05.2011 in which victim had suffered head injury associated with subarachnoid hemorrhage which had subsequently developed into hygroma. He further deposed that patient had become non ambulatory and developed complication of immobility with diseased brain, that is, hypostatic consolidation of lungs (most commonly Shanti Devi Vs. Amit & Ors. Page 9 of42 Shanti Devi Vs. Amit & Ors. Page 10 of 42 seen).
7.2 In his cross-examination by learned counsel for the insurance company, PW1 admitted that death of the victim had occurred due to natural cause.
7.3 Smt. Sita W/o Sh. Manoj Kumar has been examined as PW2, who had tendered her evidence by way of affidavit Ex.PW2/A. She deposed that on 28.05.2011 at about 8:50 am, her mother Smt. Shanti Devi and her mother's friend, namely, Smt. Maya Devi were crossing the Main G.T. Karnal Road, in front of Libaspur Bus Stand, Delhi, on foot and in the meanwhile a Car bearing registration No.DL7C-B-8388, which was being driven by its driver had come from the side of Alipur, at a very high speed, carelessly, in rash and negligent manner, in violation of all traffic rules and norms had hit her mother and her mother's friend Smt. Maya Devi, with forceful impact and had thereby caused a dreadful accident. PW2 further deposed that as a result of the case accident, her mother had sustained severe head injury and had also sustained abrasions, wounds and other grievous injuries all over her body. She also deposed that after the case accident her mother was immediately removed to Babu Jagjiwan Ram Hospital, Delhi where her MLC bearing No.26082/11 was prepared, however, due to her critical condition, after conducting her tests and X-rays, her mother was referred to some other hospital. She further deposed that thereafter on 28.05.2011, her mother was admitted in Sushruta Trauma Centre, Delhi, where during her treatment, several tests, X-rays and, NCCT Head were conducted, which showed some hemorrhagic problems and after required treatment, she was discharged on 04.06.2011 with the advice for review in neurosurgery Shanti Devi Vs. Amit & Ors. Page 10 of42 Shanti Devi Vs. Amit & Ors. Page 11 of 42 department. She stated that on 10.06.2011, her mother was again admitted in Sushruta Trauma Centre, Delhi, where during her treatment several tests and X-rays were again conducted and after the required treatment, she was discharged on 15.06.2011 with the advice for review in OPD. PW2 deposed that on 17.06.2011, her mother was admitted at Guru Nanak Eye Centre, New Delhi, where during her treatment, NCCT Head was conducted, which showed SAH in left temporal region along with hemorrhagic contusions in right temporal frontal region for treatment of which she was referred to Neurosurgery department of G.B.Pant Hospital and was discharged therefrom on 21.06.2011. She also deposed that on 22.06.2011, her mother was admitted at Sushruta Trauma Centre, Delhi, where during her treatment, NCCT Head was again conducted and she was managed conservatively before being discharged on 20.07.2011 with advice for review in OPD.
7.4 PW2 deposed that on 21.07.2011 due to eye swelling, her mother was referred to Guru Nanak Eye Centre, New Delhi, where NCCT Head and MRI Brain and Orbit were also conducted after which she was also operated on 21.07.2011. She further deposed that after the required treatment, her mother was discharged on 22.07.2011 with the advice for review in OPD. PW2 stated that her mother could not fight the battle of her life, during her stay at her residence and after about 3-4 days of discharge from the hospital, her mother had expired on 26.07.2011. She stated that she had incurred a lot of expenses on the treatment of her mother as well as on special diet, conveyance and medicines procured by her for her mother. She further stated that her deceased mother used to supply Jaundice Medicine to patients of the said disease by visiting them door to door and she was earning around Shanti Devi Vs. Amit & Ors. Page 11 of42 Shanti Devi Vs. Amit & Ors. Page 12 of 42 Rs. 7000/- to Rs. 8000/- per month and her mother used to give all her income to her to meet out their household expenses as she was living with her mother. She stated that she had spent an amount of Rs.30,000/- on the transportation and last rituals of her deceased mother. She had relied upon the following documents:-
1. MLC of the injured Ex.PW2/1.
2. Original discharge summary dated 04.6.2011 of injured/petitioner Ex.PW2/2.
3. Another original discharge summary of injured/petitioner dated 15.06.2011 Ex.PW2/3.
4. Another original discharge summary of injured/petitioner dated 21.06.2011 Ex.PW2/4.
5. Another original discharge summary of injured/petitioner dated 20.07.2011 Ex.PW2/5.
6. Another original discharge summary of injured/petitioner dated 22.07.2011 Ex.PW2/6.
7. X-ray report of the injured/petitioner Ex.PW2/7 (colly).
8. Original death certificate of the injured/petitioner Ex.PW2/8.
9. Postmortem of the injured/petitioner Ex.PW2/9.
10. Medical bills of the injured/petitioner Ex.PW2/10.
11. Photographs showing the injured/petitioner with her husband Ex.PW2/11.
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7.5 She stated that Ex.PW2/5 and Ex.PW2/10 were not on record. She
also rely upon the mark A transfer summary.
7.6 In her cross-examination by Ms. Pooja, learned counsel for R1/driver-
cum-owner, PW2 stated that she was not an eye witness of the accident. She denied the suggestion that the case accident had occurred due to own fault of deceased. She admitted that the MLC of the deceased was not prepared in her presence.
7.7 In her cross-examination by Sh. A.K. Singh, learned counsel for the insurance company, PW2 stated that she was not the eye witness of the case accident. She admitted that she had given a statement before the police officials to the effect that her mother used to earn Rs. 2,000/- per month.
She further admitted that her mother had no other source of income. She denied the suggestion that her mother had not die due to the case accident. She also denied the suggestion that she had not spent Rs. 30,000/- on the treatment of her late mother. She stated that she had got married in the year 2010. She also stated that she was living with her husband, who was working in a hotel and used to earn Rs. 9,000-10,000/- per month.
7.8 Smt. Maya Devi W/o Sh. Prem Bahadur, who has been examined as PW3 had tendered her evidence by way of affidavit Ex.PW3/A stating therein that on 28.05.2011 at about 8:50 am, she and her friend Smt. Shanti Devi were crossing the Main G.T. Karnal Road, in front of Libaspur Bus Stand, Delhi and in the meanwhile a Car bearing registration No. DL7C-B- 8388, which was being driven by driver/R1 had come from the side of Alipur at a very high speed carelessly, in a rash and negligent manner, in Shanti Devi Vs. Amit & Ors. Page 13 of42 Shanti Devi Vs. Amit & Ors. Page 14 of 42 violation of all traffic rules and norms and had hit her apart from hitting her friend Smt. Shanti Devi with forceful impact. She further deposed that as a result of the aforesaid accident, she had sustained fracture of superior and inferior pubic rami in both hips/legs, swelling around left eye as well as abrasions, wounds and other grievous injuries all over her body for treatment of which, she was removed to BJRM Hospital, Delhi, where she was medically examined vide MLC No.26083/2011 and during treatment several test including X-Rays were performed on her body after which she was referred to surgery department where she had been advised to take complete bed rest and to use a pelvic binder as treatment of fracture of superior and inferior pubic rami sustained by her. She proved on record her original casualty card as Ex.PW3/2. She clarified that she had remained under follow up treatment in out patient department of the said hospital till 18.07.2011 and proved on record her OPD cards as well as her test report as Ex.PW3/3. She stated that she had spent Rs. 30,000/- on her special diet, conveyance and medicines procured for her treatment. She deposed that she had filed on record her medical bills in the sum of Rs. 550/-. She stated that she was earning Rs. 7,000/- to Rs. 8,000/- per month by her job of supply of jaundice medicine to patients by way of door to door visit of residences of patients suffering from jaundice, however, her income had been adversely affected due to injuries sustained in the case accident.
7.9 In her cross-examination by Ms. Pooja, learned counsel for R1/driver- cum-owner of the offending vehicle, PW3 deposed that she was working as a labourer at the time of accident and was walking from Swaroop Nagar to Libaspur bus stand along with deceased Shanti Devi. She deposed that the Shanti Devi Vs. Amit & Ors. Page 14 of42 Shanti Devi Vs. Amit & Ors. Page 15 of 42 distance between Swaroop Nagar and Libaspur bus stand was about 2½ Km and she was waiting to cross the road when suddenly a car coming from Alipur side had hit her and caused injuries on her person. She deposed that she and her friend Shanti Devi were crossing the road after taking due care of traffic rules. She stated that the car was being driven at a normal speed. She denied the suggestion that the accident in question had occurred due to her own fault.
7.10 In her cross-examination by Sh. A.K. Singh, learned counsel for the insurance company, PW3 deposed that she had no documentary proof regarding her income. She admitted that she had stated before the police officials that she used to earn Rs. 2,000/- to Rs.3,000/- per month. She denied the suggestion that she had not spent Rs. 30,000/- on her treatment, special diet and conveyance etc. 7.11 PW4 Sh. Sanjay Sharma S/o Late Sh. Khacheru Singh, an eye witness deposed by way of affidavit Ex.PW4/A, wherein he had reiterated the facts mentioned in the DAR by stating that on 28.05.2011 at about 8:00 am, while waiting for a bus to go to Uttam Nagar at Libaspur bus stand, he had noticed that two ladies were crossing the main G.T. Karnal Road from just in front of the bus stand when a car bearing registration No. DL7C-B-8388 had come from the side of Alipur in a rash and negligent manner and had hit the said ladies with a forceful impact thereby causing a dreadful accident. He deposed that the driver of the offending car had stopped his car about 100 steps ahead of the spot of occurrence and after reaching the spot he himself with the help of the driver of the offending vehicle/car had removed the injured ladies to the side of the road, however, thereafter taking advantage of Shanti Devi Vs. Amit & Ors. Page 15 of42 Shanti Devi Vs. Amit & Ors. Page 16 of 42 the crowd of public persons which had gathered at the spot, the driver of the offending vehicle had fled away from the spot of occurrence along with his car. He deposed that he had immediately made a telephonic call to one of the relatives of the injured ladies and upon arrival of police officials at the spot, he had left the spot. He reiterated that the case accident had taken place due to high speed and rash as well as negligent driving of the offending car by its driver in violation of traffic rules.
7.12 In his cross-examination by Sh. Deepak Sharma, learned counsel for R1, PW4 deposed that he was a plumber by profession and he used to leave his house at about 7:00 -8:00 am in the morning for going to his work and he used to generally return at about 8:00-9:00 pm in the evening. He stated that he did not know any lady by the name of Maya Devi. He admitted that police officials had never recorded his statement in the present case. He denied the suggestion that when police officials had reached at the spot he was not present at the spot. He admitted that he had not talked/spoken to the police officials when they had reached the spot at the time of accident. He deposed that he had studied upto 8th standard and was capable of reading and writing Hindi language. He deposed that his evidence by way of affidavit Ex.PW4/A was read over to him by his counsel Sh. B.L. Khurana, who had prepared the said affidavit in his presence at Tis Hazari Courts and had got the same signed from him at his chamber (chamber of the counsel). He deposed that the distance between the spot and the bus stand where he was standing was about 30-35 feet and about 15-20 other persons were present at the bus stand at the time of incident. He clarified that the place of accident was not much crowded. He deposed that perhaps in the year 2006 on 20 th Shanti Devi Vs. Amit & Ors. Page 16 of42 Shanti Devi Vs. Amit & Ors. Page 17 of 42 November above named counsel Sh. B.L. Khurana had called him regarding the accident. He admitted that neither the police officials nor the injured ladies had noted down his name, address and telephone number. He deposed that he had not reduced into writing the registration number of the offending vehicle and he was able to recall D.L 8388 as part registration number of the said offending vehicle. He stated that after the accident, he had never met the injured ladies till the date of recording of his deposition in this court and he had never appeared as a witness in any other case prior to his appearance in the present case as a witness. He denied the suggestion that he was a planted witness and he had actually never witnessed the case accident. He further denied the suggestion that R1 had not caused the present accident or that R1 was not driving the offending vehicle in a rash and negligent manner on the date of accident.
7.13 Sh. A.K. Singh, learned counsel for the insurance company/R2 had adopted the cross-examination of PW4 as conducted by learned counsel for R1.
7.14 PW5 Dr. P.N. Pandey, HOD (Neuro), LNJP Hospital, New Delhi deposed that victim Shanti Devi had remained admitted in neuro surgery department of LNJP Hospital with effect from 28.05.2011 to 04.06.2011 and 10.06.2011 to 15.06.2011 as a case of road traffic accident with severe head injury. He stated that after discharge from LNJP Hospital, injured Shanti Devi had remained admitted in Guru Nanak Eye Center with effect from 17.06.2011 to 21.06.2011 for retro bulbar hemorrhage of right eye. He proved on record the postmortem report of deceased Shanti Devi already Ex.PW2/9. On being asked as to whether patient Shanti Devi had expired Shanti Devi Vs. Amit & Ors. Page 17 of42 Shanti Devi Vs. Amit & Ors. Page 18 of 42 on 26.07.2011 due to injuries sustained in the case accident or not, PW5 deposed that the death of injured was trauma related as she had initially met with a road traffic accident. He stated that injured Shanti Devi had been managed conservatively in hospital setup with repeated admissions in the department concerned as well as in other hospitals like Guru Nanak Eye Center (GNEC) for treatment of injury of the eye which was detected subsequently. He deposed that injured Shanti Devi had developed multiple complications of her injuries like infection of the lungs in the form of collapse which had caused adult respiratory distress syndrome leading to her death.
7.15 In his cross-examination by Sh. Deepak Sharma, learned counsel for R1, PW5 admitted that lung collapse can occur due to various reasons like pneumonia etc. He further clarified that in the present case as the victim was a known case of severe head injury, therefore her lungs had collapsed due to head injuries suffered in the road traffic accident. He stated that he had no recorded health history of the patient prior to her accident available with him and he was aware about the history as told by the patient or her relatives. He denied the suggestion that the lungs of the victim had not collapsed due to head injuries sustained in road traffic accident.
7.16 In his cross-examination by Sh. A.K. Singh, learned counsel for the insurance company/R3, PW5 expressed his inability to show any specific record whereby he had personally treated patient Shanti Devi with effect from 10.06.2011 to 15.06.2011. He, however, clarified that all treatment had been given to the patient under his supervision only. He stated that every patient of head injury admitted in LNJP Hospital was generally treated under Shanti Devi Vs. Amit & Ors. Page 18 of42 Shanti Devi Vs. Amit & Ors. Page 19 of 42 his supervision. He denied the suggestion that he did not supervise or physically medically examine the patient. He denied the suggestion that there was no connection between head injury and lungs collapse. He perused the postmortem report and clarified that bilateral consolidation of the lungs meant the same thing as collapse of lungs. He expressed his inability to comment upon the cause of death mentioned as natural cause by the doctor who had conducted postmortem report of the deceased. He, however, reiterated that it was evident that the patient had expired due to severe head injuries sustained in a road traffic accident. He denied the suggestions that patient Shanti Devi had expired due to medical negligence the patient had expired due to natural death and her death was not related to the head injury suffered in the road traffic accident. He admitted that the postmortem report did not mention anything about the head injury. He denied the suggestion that nothing had been mentioned about the head injury in the postmortem report on account of the fact that the petitioner had expired due to natural death.
7.17 No contradictions or material discrepancies have appeared in the cross examination of PW3 Smt. Maya Devi to discredit her testimony which were capable of demolishing the case of the petitioner to the effect that the case accident had occurred due to rash and negligent driving of the offending vehicle by R1 and the injuries sustained by victim Shanti Devi had occasioned therefrom.
7.18 It is a defence of the insurance company that victim Shanti Devi had expired due to a natural cause as per the postmortem report Ex.PW2/9 and the cause of death in said postmortem report was mentioned as bilateral consolidation of lungs which had no connection with the injuries sustained Shanti Devi Vs. Amit & Ors. Page 19 of42 Shanti Devi Vs. Amit & Ors. Page 20 of 42 by the victim in the case accident. It has thus been prayed on behalf of the insurance company that the present matter be treated as an injury case and not as a case of death by rash and negligent driving of a motor vehicle on a public road. In this context, a perusal of court record reveals in that postmortem report of deceased Shanti Devi Ex.PW2/9, it has been categorically mentioned that victim Shanti Devi had expired due to bilateral consolidation of lungs a natural cause, however, thereafter the petitioners had examined PW5 Dr. P.N. Pandey from neuro surgery department of LNJP Hospital, who had supervised the treatment of the petitioner during her admission in the above named hospital.
7.19 PW5 Dr. P.N. Pandey had categorically stated in his examination-in- chief that the death of victim/injured was trauma related as she had initially met with a road traffic accident and was conservatively managed in hospital setup with repeated admission in the department concerned. He had further deposed in his testimony recorded in the court that deceased had developed multiple complication of her injuries such as infection of lungs in the form of collapse which had caused adult respiratory distress syndrome leading to her death.
7.20 In his cross-examination by learned counsel for R1 and R2, PW5 had reiterated that victim was a known case of severe head injury and hence her lungs had collapsed due to head injury suffered in the alleged road traffic accident. He had further clarified that bilateral consolidation of lungs meant collapse of lungs. He deposed that he was not in a position to comment upon cause of death mentioned as natural cause by the doctor concerned in the postmortem report. He, however, reiterated that the deceased had Shanti Devi Vs. Amit & Ors. Page 20 of42 Shanti Devi Vs. Amit & Ors. Page 21 of 42 expired due to severe head injuries suffered in RTA. The relevant extract of the deposition made by PW5 in his cross-examination is reproduced hereinbelow.
It is correct that lung collapse can occur due to various other reasons like pneumonia etc., however, in the present case as the victim was a known case of severe head injury, hence, her lung collapse was due to the head injuries suffered in the RTA.
I cannot comment upon the cause of death mentioned as 'natural cause' by the doctor giving the postmortem report, however, it is evident that the patient had expired due to severe head injuries suffered in RTA.
7.21 In view of the abovesaid extract of testimony of Dr. P.N. Pandey, it can be safely concluded that victim Shanti Devi had suffered severe head injuries in the case accident and due to this reason she had developed complication such as infection in lungs on account of which her lungs had collapsed during the course of her treatment leading to her death.
7.22 A similar situation had come up for consideration before the Hon'ble Supreme Court of India in the decided case of Ghulam Hassan Beigh Vs. Mohammad Maqbool Magrey & Ors. Arising out of S.L.P. (Criminal ) No.4599 of 2021, wherein the trial court had discharged the accused for the commission of offence of murder punishable under section 302 IPC and had framed charges against the accused for the commission of offence punishable under section 304 IPC in lieu of 302 IPC on the ground that in the postmortem report the cause of death has been mentioned as cardio Shanti Devi Vs. Amit & Ors. Page 21 of42 Shanti Devi Vs. Amit & Ors. Page 22 of 42 respiratory failure. The Hon'ble Supreme Court of India had while setting aside the order of discharge observed that a postmortem report by itself was not substantive evidence and whether cardio respiratory failure suffered by the victim had any nexus with the injuries sustained by the victim in the alleged assault would have to be determined on the basis of oral evidence of eye witness as well as the testimony of the doctor concerned. The Hon'ble Apex Court had emphasized that the statement of the doctor recorded in the court was the only substantive evidence and a postmortem report could only be used to corroborate the testimony of the doctor recorded in the court as a previous statement of the said doctor.
29. "What did the trial court do in the case on hand?
We have no doubt in our mind that the trial court could be said to have conducted a mini trial while marshalling the evidence on record. The trial court thought fit to discharge the accused persons from the offence of murder and proceeded to frame charge for the offence of culpable homicide under Section 304 of the IPC by only taking into consideration the medical evidence on record. The trial court as well as the High Court got persuaded by the fact that the cause of death of the deceased as assigned in the post mortem report being the "cardio respiratory failure", the same cannot be said to be having any nexus with the alleged assault that was laid on the deceased.
Such approach of the trial court is not correct and cannot be countenanced in law. The post mortem report, by itself, does not constitute substantive evidence. Whether the "cardio respiratory failure"
had any nexus with the incident in question would have to be determined on the basis of the oral evidence of the eye witnesses as well as the medical office concerned i.e. the expert witness who may be Shanti Devi Vs. Amit & Ors. Page 22 of42 Shanti Devi Vs. Amit & Ors. Page 23 of 42 examined by the Prosecution as one of its witnesses. To put it in other words, whether the cause of death has any nexus with the alleged assault on the deceased by the accused persons could have been determined only after the recoding of oral evidence of the eye witnesses and the expert witness along with the other substantive evidence on record. The post mortem report of the doctor is his previous statement based on his examination of the dead body. It is not substantive evidence. The doctor's statement in court is alone the substantive evidence. The post moretm report can be used only to corroborate his statement under Section 157, or to refresh his memory under Section 159, or to contradict his statement in the witness-box under section 145 of the Evidence Act, 1872. A medical witness called in as an expert to assist the Court is not a witness of fact and the evidence given by the medical officer is really of an advisory character given on the basis of the symptoms found on examination. The expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the Court on the technical aspect of the case by explaining the terms of science so that the Court although, not an expert may form its own judgment on those materials after giving due regard to the expert's opinion because once the expert's opinion is accepted, it is not the opinion of the medical officer but of the Court.
7.23 A similar situation had come up for consideration before National Consumer Dispute Redressal Commission (NCDRC), wherein the victim of a road traffic accident had expired due to heart attack during the course of treatment and no postmortem had been conducted on his body. The concerned insurance company had refused to grant compensation to the Shanti Devi Vs. Amit & Ors. Page 23 of42 Shanti Devi Vs. Amit & Ors. Page 24 of 42 legal heirs of the deceased for accidental death. However, the Hon'ble NCDRC had clarified that although death of victim in medical terms had occurred due to heart attack but the main cause of heart attack were the injuries sustained in the case accident which had resulted in chest pain followed by heart attack and thus Hon'ble NCDRC had directed LIC to pay compensation to the legal heirs of the victim as per their entitlement. The relevant extract of observations made by NCDRC in the decided case of Krishna Wati vs. LIC of India, 1(200) CPJ 21 NC decided on 22.11.2005 in paras 8 and 9 of the judgment are noteworthy in this context and are reproduced below:-
8. After analysing all the evidence, he gave an opinion that the death of the insured was caused because of the accident, which resulted into injuries (not visible) to the insured and his subsequent death.
(d)This report is signed by Shri S.C. Mehta, Managing Director, Strategic Security Consociates and is dated 20th November, 1994. This report dispels any iota of doubt about the health of the insured and the proximate ard the ultimate cause of death the insured. Though this agency was engaged by Oriental Insurance Company, the investigation conducted by this agency pertains to the same accident which caused the demise of Shri Bhagat Ram, the complainant in this case. Further, the learned counsel or the Life Insurance Corporation, the respondent in this case, has also quoted the extracts from the report of this agency particularly relating to the inquiry made from Dr. S.C. Garg of Kurukshetra Nursing Home. Hence this report is reliable. In our view, from the record as it is, it is apparent that first the accident took place, resulted in injuries and chest pain which ultimately resulted in 'death'. May be, the death in the medical terms be described as 'due to heart-attack, but the main Shanti Devi Vs. Amit & Ors. Page 24 of42 Shanti Devi Vs. Amit & Ors. Page 25 of 42 cause for leading to heart attack was injury caused due to accident. Accident is the basis for Causing chest pain and thereafter heart attack. Therefore, the orders passed by the lower Fora deserve to be set aside.
9. Accordingly, while allowing the revision petition, we set aside the order passed by the Fora below and direct the respondent LIC to pay the balance amount of Rs.
55,000/- with 9% interest from the date of the complaint. It is also ordered that Rs. 5,000/- be paid as cost by the respondent to the petitioner".
7.24 The facts of the present case are akin to the facts of the above cited cases Ghulam Hassan Beigh Vs. Mohammad Maqbool Magrey & Ors. (supra) and Krishna Wati vs. LIC of India (supra), decided by Hon'ble Apex Court and Ld. NCDRC respectively and in the present case also the victim had sustained severe head injuries for treatment of which she had remained admitted at LNJP Hospital as well as at Guru Nanak Eye Center from time to time, however, during the course of treatment she had expired due to bilaterial consolidation of lungs. Although, in the postmortem report of the deceased, the cause of her death had been mentioned as a natural cause, however, it has been categorically deposed by PW5 Dr. P.N. Pandey that the consolidation of lungs in the case of the petitioner had occurred due to complication of severe head injuries sustained by the victim in the case accident. Thus, as observed by Hon'ble Apex Court in the decided case of Ghulam Hassan Beigh Vs. Mohammad Maqbool Magrey & Ors. (supra), it can be safely concluded that postmortem report is not a substantive evidence and the testimony of PW5 Dr. P.N. Pandey being substantive evidence discloses the real cause of death of victim Shanti Devi, who according to Dr. P.N. Pandey had expired due to collapse of her lungs caused Shanti Devi Vs. Amit & Ors. Page 25 of42 Shanti Devi Vs. Amit & Ors. Page 26 of 42 by severe head injuries sustained in the case accident. Hence, I find no merit in submissions of learned counsel for the insurance company to the effect that the deceased had suffered a natural death due to bilateral consolidation of her lungs and the present case should not be treated as a case of causing death not amounting to culpable homicide by rash and negligent driving of a motor vehicle on a public road and the LR's of the deceased should rather be compensated merely for injuries sustained by the victim in the case accident.
7.25 The issue no. 1 is only to be proved by the claimant beyond preponderance of probabilities as distinguished from beyond reasonable doubt. In view of above said discussion, criminal case record including charge sheet filed against R1, it has been proved beyond preponderance of probabilities that the case accident had been caused by R1 who was driving the offending vehicle in a rash and negligent manner at the above said date, time and place and had hit the same against of the victim who was crossing the road thereby causing fatal injuries on the person of victim Shanti Devi.
Issue no.1 is accordingly decided in favour of petitioners and against the respondents.
8. Issue No. (2) (2). Whether petitioners are entitled to compensation, if so, to what amount and from whom? OPP In view of my findings on issue no.1, the petitioners are entitled to compensation.
8.1 In view of my findings on issue no.1 regarding negligence of R1
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resulting in the occurrence of the case accident, I am of the considered opinion that the petitioner/claimant is entitled to compensation in respect of demise of the victim Smt. Shanti Devi in the above mentioned road traffic accident, I shall now examine the entire evidence including the documents of the petitioners/claimants for the purpose of arriving at a finding about the quantum of compensation to which the petitioner/claimant is entitled.
8.2 Petitioners has examined only five witnesses in support of her version of the case including PW3 Maya Devi, who has claimed to be an eye witness of the case accident and had categorically stated that the accident in question had occurred due to rash and negligent driving of the offending vehicle by R1.
8.3 Besides, petitioner Smt. Sita, daughter of the deceased had examined herself as PW2 and had proved the age of the deceased Smt. Shanti Devi as 43 years at the time of accident. Although, the daughter of the deceased had made a categoric deposition regarding the nature of employment of the deceased and her monthly income by stating that the deceased was earning Rs.7,000/- to Rs.8,000/- per month through her private employment as a supplier of Jaundice medicine to the patients affected the said disease by visiting them door by door. Besides, she had not filed any income proof of her deceased mother including ITR or statement of bank account of her deceased mother reflecting credit of her mother's salary therein. 8.4 Moreover, the petitioner had also not filed any proof of educational qualification or skill training, if any, acquired by the deceased during her life time, so as to facilitate a finding from this court regarding the earning capacity of the deceased on the basis of her educational attainment.
Shanti Devi Vs. Amit & Ors. Page 27 of42 Shanti Devi Vs. Amit & Ors. Page 28 of 42 Therefore, the deceased can at best be deemed to be entitled to minimum wages payable to an unskilled labourer or workman. 8.5 As per the DAR filed by the IO, the deceased was a resident of H.No.69/14, Old Chandrawal, Near Civil Line, Delhi. In such circumstances, the income of the deceased has to be determined in accordance with the minimum wages payable to an unskilled labourer in the National Capital Territory of Delhi as on the date of occurrence of the case accident, that is, on 28.05.2011 which comes to Rs.6,422/-.
9. Addition of future prospects If addition in income towards future prospects is to be made 9.1 In this regard, reference should be made to the Constitutional Bench Judgment of Hon'ble Supreme Court of India in case of National Insurance Company Limited vs. Pranay Sethi & Ors, SLP (Civil) No. 25590 of 2014, date of decision 31.10.2017.
9.2 In the said judgment of Pranay Sethi (Supra), the Hon'ble Apex Court inter alia held as under:-
61. In view of the aforesaid analysis, we proceed to record our conclusions:-
(i).........................................................................................
(ii) .....................................................................................
(iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30% , if the age Shanti Devi Vs. Amit & Ors. Page 28 of42 Shanti Devi Vs. Amit & Ors. Page 29 of 42 of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%.
Actual salary should be read as actual salary less tax.
(iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.
(v) For the determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore.
(vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment.
(vii) The age of the deceased should be the basis for applying the multiplier.
(viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and future expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years. "
(.... Emphasis Supplied) Shanti Devi Vs. Amit & Ors. Page 29 of42 Shanti Devi Vs. Amit & Ors. Page 30 of 42 9.3 In the case in hand, the deceased was self-employed and in terms of above said judgment, while determining her income for computing compensation, future prospects have to be added to fall within the ambit and sweep of just compensation under Section 168 of M.V. Act.
9.4 As per copy of postmortem report of the deceased, the deceased was aged about 43 years old at the time of accident. Accordingly, the deceased was aged about 43 years at the time of occurrence of the case accident. In view of paragraph no. 61 (iv) of above said judgment in Pranay Sethi (Supra), the deceased would be entitled to 25% addition towards future prospects to her established as she was above the age of 40 years but below the age of 50 years at the time of her death.
9.5 The monthly income of the deceased is thus calculated as Rs.8,027.5/- (monthly income of 6,422/- + 25% of monthly income i.e Rs.1605.5/- = Rs.8,027.5/-).
10. Deduction towards personal and living expenses of the deceased:
10.1 Claimant is the only daughter of the deceased, who has claimed to be financially dependent upon the income of the deceased at the time of occurrence of the case accident. PW2/daughter of the deceased deposed in her evidence by way of affidavit that deceased was earning Rs.7,000/- to Rs.
8,000/- per month from her job as supplier of jaundice medicines to the patients and she herself of the deceased was financially dependent upon the income of the deceased. In this context, a perusal of court record reveals the case of the petitioners that she was the only surviving legal heir of the Shanti Devi Vs. Amit & Ors. Page 30 of42 Shanti Devi Vs. Amit & Ors. Page 31 of 42 deceased Smt. Shanti Devi was aged about 21 years at the time of occurrence of case accident. As such there is no material on record to establish as to whether the petitioner was financially dependent on her mother. However, petitioner Sita was married and the deceased was not only residing with the petitioner but was also contributing her entire income towards the household expenses of the petitioner.
10.2 Accordingly, this Tribunal is of the opinion that the deceased was survived by only one legal heirs, that is, Smt. Sita, who was partially dependent on the income of the deceased. In such circumstances, the deceased was likely to contribute 50% of her income towards maintenance of her family member and to spare remaining 50% of her income towards her personal and living expenses.
11. Selection of multiplier:
11.1 As discussed above, the age of the deceased was 43 years at the time of his death as mentioned in her postmortem report. In the said circumstances, the relevant multiplier has to be calculated as per the judgment passed by Hon'ble Supreme Court of India in the case of Sarla Verma vs Delhi Transport Corporation, 2009 ACJ 1298. As per the guidelines laid down in Sarla Verma case by Hon'ble Supreme Court of India, multiplier of 14 is to be applied for computing compensation payable to a deceased victim of Road Traffic Accident aged between 41 to 45 years.
12. Loss of financial dependency
12.1 In the light of aforesaid facts, loss of financial dependency of the petitioners comes to Rs.6,74,310/- [i.e. Rs.8,027.5/- (per month income of Shanti Devi Vs. Amit & Ors. Page 31 of42 Shanti Devi Vs. Amit & Ors. Page 32 of 42 the deceased) X12 X14 (multiplier) X 1/2 (dependency)].
13. Compensation under non-pecuniary heads/conventional heads:
13.1 In view of the judgment of Constitution Bench of Hon'ble Apex Court in case of Pranay Sethi (Supra), as held in paragraph number 61
(viii) of the said judgment, the petitioners would be entitled to Rs. 15,000/-
towards loss to the estate of the deceased and Rs. 15,000/- towards funeral expenses.
14. Consortium {Spousal Consortium/Parental Consortium/Filial Consortium} 14.1 The deceased was unmarried and the petitioners/claimants are his parents. It is now a settled law in terms of Judgment of Hon'ble Supreme Court of India, in case of Magma General Insurance Co. Ltd vs Nanu Ram and Ors, Civil Appeal No. 9581 of 2018, date of decision 18.09.2018: 2018(8) SCJ 338:2018 SCC Online SC 1546 and the judgment of Hon'ble Delhi High Court in case of Uttrakhand Transport Corporation Vs. Jyoti Sardana, MAC.APP.920/2017, date of decision 03.04.2019 that the compensation under the head of consortium is required to be awarded to the claimant to the tune of Rs. 40,000/-. In the present case, there is only daughter of the deceased, hence, Rs. 40,000/- (Rs. 40,000/- x 1) is being granted as compensation under the said head. My views in this regard are also substantiated by the latest judgments of Hon'ble Delhi High Court in cases titled as United India Ins. Co. Ltd. Vs Manorama Aggarawal and Ors., MAC.APP. 250/2015, decided on 09.01.2020 and Om Prakash and Ors vs Ved Prakash and Anr, MAC.APP 114/2019 date of decision 28.01.2020. My views are also Shanti Devi Vs. Amit & Ors. Page 32 of42 Shanti Devi Vs. Amit & Ors. Page 33 of 42 substantiated by the latest judgments of Hon'ble Supreme Court of India in cases titled as The New India Assurance Company Limited Vs. Smt. Somwati and Ors., Civil Appeal Nos. 3093-3099 of 2020, decided on 07.09.2020 and United India Insurance Company Ltd. Vs. Satinder Kaur alias Satvinder Kaur and Ors., (2020) SCC Online 410.
15. LOSS OF LOVE and AFFECTION 15.1 The Hon'ble Supreme Court of India in the latest case of The New India Assurance Company Limited Vs. Smt. Somwati and Ors., Civil Appeal Nos. 3093-3099 of 2020, decided on 07.09.2020 after referring to its another decision of three-judge bench in case titled as United India Insurance Company Ltd. Vs. Satinder Kaur alias Satvinder Kaur and Ors., (2020) SCC Online 410 inter alia held as follows :
"34. The Three-Judge Bench in the above case approved the comprehensive interpretation given to the expression 'consortium' to include spousal consortium, parental consortium as well as filial consortium. Three-Judge Bench however further laid down that 'loss of love and affection' is comprehended in 'loss of consortium', hence, there is no justification to award compensation towards 'loss of love and affection' as a separate head.
35. The Constitution Bench in Pranay Sethi has also not under conventional head included any compensation towards 'loss of love and affection' which have been now further reiterated by three- Judge Bench in United India Insurance Company Ltd. (supra). It is thus now authoritatively well settled that no compensation can be awarded under the head 'loss of love and affection'.
......................................................................................
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...
...................................................................................... ...
...................................................................................... ...
47. In result, all the appeals are partly allowed.
The award of compensation under the conventional head 'loss of love and affection' is set aside........................"
15.2 In view of the abovesaid discussion and the latest judgments of Hon'ble Supreme Court of India in the cases of The New India Assurance Company Limited Vs. Smt. Somwati and Ors., Civil Appeal Nos. 3093- 3099 of 2020, decided on 07.09.2020 and United India Insurance Company Ltd. Vs. Satinder Kaur alias Satvinder Kaur and Ors., (2020) SCC Online 410, no amount of compensation can be awarded under the said head of 'loss of love and affection'. Hence, no amount is being granted under the said head.
16. Petitioners/claimants are accordingly entitled to compensation computed as under:
Loss of financial dependency Rs. 6,74,310/-
Loss of Estate Rs. 15,000/-
Funeral Expenses Rs. 15,000/-
Loss of Consortium Rs. 40,000/-
Loss of Love and Affection Nil.
________________
Total Rs. 7,44,310/-
________________
(Rupees Seven Lacs Forty Four Thousand Three Hundred and Ten Only).
Shanti Devi Vs. Amit & Ors. Page 34 of42 Shanti Devi Vs. Amit & Ors. Page 35 of 42 16.1 In respect of entitlement of the petitioner to interest on the awarded amount, it is noteworthy that the Hon'ble Apex Court had in the case of Municipal Corporation of Delhi vs. Association of Victims of Uphaar Tragedy, 2012 ACJ 48 (SC) had observed that the victims of Uphaar Tragedy be awarded compensation with interest @ 9% per annum. The present matter is pending trial since 13.07.2011 and the rate of interest of fixed deposits in Nationalized banks has fluctuated/dropped several times during the pendency of the present proceedings. Therefore, in the interest of justice, in the present case, this court is of the opinion that the claimant/petitioner is entitled to interest at the prevailing bank rate of 7% per annum from the date of filing of DAR/petition, that is, with effect from 13.07.2011 till realisation of the compensation amount.
16.2 The amount of interim award, if any, shall however be deducted from the above amount, if the same has already been paid to the petitioner.
17. Liability 17.1 In the case in hand, the Reliance General Insurance Company Limited/R3 has not been able to show anything on record to the effect that R1 who was the driver of the offending vehicle was not having any valid driving licence to drive the offending vehicle. As per settled law, since the offending vehicle was duly insured with the insurance company/R3, hence, R3 is liable to pay the entire compensation amount to the petitioners as per law.
17.2 Accordingly, in the case in hand, in terms of order dated 16.05.2017 of Hon'ble High Court by Hon'ble Mr. Justice J.R. Midha in case of Shanti Devi Vs. Amit & Ors. Page 35 of42 Shanti Devi Vs. Amit & Ors. Page 36 of 42 Rajesh Tyagi Vs. Jaibir Singh and Ors., Reliance General Insurance Company Limited/R3 is directed to deposit the awarded amount of Rs.7,44,310/- within 30 days from today within the jurisdiction of this Tribunal, that is, State Bank of India, Rohini Courts Branch, Delhi along with interest at the rate of 7% per annum from the date of filing of the petition till notice of deposition of the awarded amount to be given by R3 to the petitioners and his advocates and to show or deposit the receipt of the acknowledgement with the Nazir as per rules. R3 is further directed to deposit the awarded amount in the above said bank by means of cheque drawn in the name of above said bank along with the name of the claimants mentioned therein. The said bank is further directed to keep the said amount in fixed deposit in its own name till the claimants approach the bank for disbursement, so that the awarded amount starts earning interest from the date of clearance of the cheque.
APPORTIONMENT
18. Statement of petitioner, namely, Smt. Sita in terms of clause 29 MCTAP was recorded on 19.04.2022 regarding her savings bank a/c with no loan, cheque book and ATM/debit card. I have heard the petitioner and Ld. counsel for the petitioner/claimant regarding financial needs of the petitioners and in view of the judgment in the case of General Manager, Kerala State Road Transport Corporation Vs. Susamma Thomas and Others, 1994 (2) SC, 1631, for appropriate investments to safeguard the amount from being frittered away by the beneficiaries owing to their ignorance, illiteracy and being susceptible to exploitation, following arrangements are hereby ordered:-
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18.1 It is deemed appropriate by this court after hearing learned
counsels for all parties that maximum amount of compensation be kept in FDRs and only a very small amount be released to the claimants. Keeping in view the facts and circumstances of the case, the statement made by the petitioners, it is hereby directed that on realization of the entire award amount, an amount of Rs.94,310/- be given to Smt. Sita, the daughter of the deceased in her bank a/c no.33288100017634 with Bank of Baroda, Jahangir Puri Branch, Delhi, that is, the branch near her place of residence (as mentioned in statement recorded under clause 29 MCTAP), and remaining amount be kept in the form of FDRs of equal amount for a period of 1 month to 50 months respectively with cumulative interest without the facility of advance, loan and premature withdrawal without the prior permission of the Tribunal.
18.2 It shall be subject to the following further conditions and directions in terms of order dated 07.12.2018 of Hon'ble Mr. Justice J.R. Midha in case of Rajesh Tyagi vs Jaibir Singh, FAO 842/2003 with respect to fixed deposits :-
(a) The bank shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the victim i.e. the saving bank account(s) of the claimant(s) shall be individual savings account(s) and not a joint account(s).
(b) The original fixed deposit shall be retained by the bank in safe custody. However, the statement containing FDR number, FDR amount, date of maturity and maturity amount shall be furnished by bank to the claimant(s).
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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 amount of the FDR(s) be credited by Electronic Clearing System (ECS) in the saving bank account of the claimant(s) near the place of their residence i.e. above said a/c.
(e) No loan, advance or withdrawal or 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. The bank shall debit card(s) freeze the account of the claimant(s) so that no debit card be issued in respect of the account of the claimant(s) from any other branch of the bank.
(g) The bank shall make an endorsement on the passbook of the claimant(s) to the effect, that no cheque book and/or debit card have been issued and shall not be issued without the permission of the court and claimant(s) shall produce the passbook with the necessary endorsement before the court on the next date fixed for compliance.
(h) It is clarified that the endorsement made by the bank along with the duly signed and stamped by the bank official on the pass book(s) of the claimant(s) is sufficient compliance of clause (g) above.
19. Relief 19.1 As discussed above, R3 is directed to deposit the award amount of Rs.7,44,310/-, with interest @ 7% per annum from the date of filing of Shanti Devi Vs. Amit & Ors. Page 38 of42 Shanti Devi Vs. Amit & Ors. Page 39 of 42 DAR/petition i.e. 13.07.2011 till realization within the jurisdiction of this Tribunal i.e. SBI, Rohini Court Branch, Delhi within 30 days from today under intimation of deposition of the awarded amount to be given by R3 to the petitioners and their advocate failing which the R3 shall be liable to pay interest @ 9% per annum from the period of delay beyond 30 days. 19.2 R3 is also directed to place on record the proof of deposit of the award amount, proof of delivery of notice in respect of deposit of the award amount in the above said bank to the claimants and complete details in respect of calculations of interest etc in the court within 30 days from today. 19.3 A copy of this judgment/award be sent to respondent no.3 for compliance within the granted time.
19.4 Nazir is directed to place a report on record in the event of non- receipt/deposit of the compensation amount within the granted time.
In terms of directions contained in the order dated 07.12.2018 and subsequent order dated 22.02.2019 of Hon'ble Mr. Justice J.R. Midha in the case of Rajesh Tyagi and Ors vs Jaibir Singh and Ors., FAO 842/2003, the copy of the award be also sent by the Ahlmad of the court to Mr. Rajan Singh, Assistant General Manager, State Bank of India (as per the list of nodal officers of 21 banks of Indian Bank's Association as circulated to the Motor Accident Claims Tribunal vide above mentioned order dated 22.02.2019 of Hon'ble Delhi High Court) who is the Nodal Officer with contact details (022-22741336/9414048606) {other details- Personal Banking Business Unit (LIMA) 13th Floor, State Bank Bhawan, Madame Cama Road, Nariman Point, Mumbai-400021} through email ([email protected]) through the computer branch of Rohini Courts, Shanti Devi Vs. Amit & Ors. Page 39 of42 Shanti Devi Vs. Amit & Ors. Page 40 of 42 Delhi. Ahlmad of the court is directed to take immediate steps in that regard.
19.5 A copy of this award be forwarded to the concerned Metropolitan Magistrate and DLSA in terms of the orders passed by the Hon'ble High Court in FAO 842/2003 Rajesh Tyagi Vs. Jaibir Singh and Ors. vide order dated 12.12.2014.
In view of the directions contained in order dated 18.01.2018 of Hon'ble Mr. Justice J.R. Midha in FAO no. 842/2003 titled as Rajesh Tyagi vs Jaibir Singh, statement of petitioner Smt. Sita was also recorded on 19.04.2022 wherein she had stated that she was entitled to exemption from deduction of TDS and that she would submit form 15G to insurance co. so that no TDS is deducted.
20. Form IVA which has been duly filled in has also been attached herewith. File be consigned to record room as per rules after compliance of necessary legal formalities. Copy of order be given to parties for necessary compliance as per rules.
Announced in open court (JASJEET KAUR)
on 26th September, 2023 PO MACT N/W
Rohini Courts, Delhi.
Shanti Devi Vs. Amit & Ors. Page 40 of42
Shanti Devi Vs. Amit & Ors. Page 41 of 42
FORM - IV A
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN DEATH
CASES TO BE INCORPORATED IN THE AWARD
1. Date of accident : 28.05.2011
2. Name of deceased: Smt. Shanti Devi
3. Age of the deceased: About 43 years at the time of accident.
4. Occupation of the deceased: Self employed/supplier of medicines.
5. Income of the deceased: Rs.6,422/- per month (as per unskilled)
6. Name, age and relationship of legal representatives of deceased:
S.No. Name Age Relation
(i) Smt. Sita 33 Years Daughter
Computation of Compensation
S.No. Heads Awarded by the Claims
Tribunal
7. Income of the deceased (A) Rs.6,422/- (as per minimum
wages)
8. Add-Future Prospects (B) 25% = Rs.1,605.5/-
9. Less-Personal expenses of the 1/2 (Rs.4,013.75/-)
deceased (C )
10. Monthly loss of dependency Rs.4,013.75/-
{ (A+B) - C =D}
11. Annual loss of dependency (Dx12) Rs. 48,165/-
12. Multiplier (E) 1413. Total loss of dependency (Dx12xE = Rs.6,74,310/-
F)
14. Medical Expenses (G) Nil
15. Compensation for loss of love and Nil affection (H)
16. Compensation for loss of Rs. 40,000/- (40,000x1) Shanti Devi Vs. Amit & Ors. Page 41 of42 Shanti Devi Vs. Amit & Ors. Page 42 of 42 consortium (I)
17. Compensation for loss of estate (J) Rs. 15,000/-
18. Compensation towards funeral Rs. 15,000/-
expenses (K)
19. TOTAL COMPENSATION Rs.7,44,310/-
(F+G+H+I+J+K =L)
20. RATE OF INTEREST AWARDED 7% 21 Interest amount up to the date of Rs.6,35,785.36/-
award (M)
22. Total amount including interest Rs.13,80,095.36/- (rounded (L+M) off Rs.13,80,096/-)
23. Award amount released Rs.94,310/-
24. Award amount kept in FDRs Rs.12,85,786/-
25. Mode of disbursement of the award As per award and in terms of amount to the claimant (s) (Clause clause 29 of MCTAP.
29)
26. Next date for compliance of the 25.10.2023 award. (Clause 31) Announced in open court (JASJEET KAUR) on 26th September, 2023 PO MACT N/W Rohini Courts, Delhi.
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