Delhi District Court
Smt. Anita Chawla vs Ram Bhool Singh on 20 December, 2022
IN THE COURT OF HARVINDER SINGH, PRESIDING
OFFICER : MOTOR ACCIDENT CLAIMS TRIBUNAL-01,
(WEST), TIS HAZARI COURTS, DELHI
AWARD/JUDGMENT
MACT Case No. 688/2019
CNR No.-DLWT01-007861/2019
1. Smt. Anita Chawla
W/o Late Sh. Jatinder Chawla
R/o A-2B/39-B, MIG Flats,
Ekta Apartments, Paschim Vihar,
New Delhi
....... Applicant/Petitioner/Claimant
Versus
1. Ram Bhool Singh
S/o Sh. Chander Bhan
R/o House No. 659-A, Saini Mohalla,
Nangloi, Delhi
(Driver of the vehicle)
2. Mayank
S/o Sh. Rajinder Kumar
R/o M-125, Third Floor,
Guru Hari Kishan Nagar,
Sunder Vihar West,
Paschim Vihar, New Delhi
(owner of the vehicle)
3. Oriental Insurance Company
19-A, Third Floor,
D O 26, Jawala Hari market,
Paschim Vihar, New Delhi-110063
........Respondents
Date of Institution : 25.09.2019 Date of reserving order/judgment : 17.12.2022 Date of pronouncement : 20.12.2022 Anita Chawla vs. Ram Bhool Singh & Ors. MACT No.688/2019 Page No.1 of 25 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2022.12.20 16:05:19 +0530 FORM-XVII COMPLIANCE OF THE PROVISIONS OF THE MODIFIED CLAIMS TRIBUNAL AGREED PROCEDURE 1. Date of the accident 29.10.2018 2. Date of filing of Form-I - First Not Applicable Accident Report (FAR) 3. Date of delivery of Form-II to the Not Applicable victim(s) 4. Date of receipt of Form-III from Not Applicable the Driver 5. Date of receipt of Form-IV from Not Applicable the Owner 6. Date of filing of the Form-V- Not Applicable Interim Accident Report (IAR) 7. Date of receipt of Form-VIA and Not Applicable Form-VIB from the Victim(s) 8. Date of filing of Form-VII - 25.09.2019 Detailed Accident Report (DAR)
9. Whether there was any delay or Accident took place on deficiency on the part of the 29.10.2018, however, Investigating Officer? If so, whether the DAR was filed on any action/direction warranted? 25.09.2019
10. Date of appointment of the Date not mentioned Designated Officer by the Insurance Company.
11. Whether the Designated Officer of NO the Insurance Company submitted his report within 30 days of the DAR?
12. Whether there was any delay or WS has been filed on deficiency on the part of the 18.01.2020 Designated Officer of the Insurance Company? If so, whether any action/direction warranted?
13. Date of response of the claimant(s) Legal offer has not to the offer of the Insurance given in the present Company matter Anita Chawla vs. Ram Bhool Singh & Ors. MACT No.688/2019 Page No.2 of 25 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2022.12.20 16:05:25 +0530
14. Date of the award 20.12.2022
15. Whether the claimant(s) was/were Yes directed to open savings bank account(s) near their place of residence?
16. Date of order by which claimant(s) 25.09.2019 was/were directed to open savings bank account(s) near his place of residence and produce PAN Card and Aadhaar 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
17. Date on which the claimant(s) 22.09.2022 produced the passbook of their savings bank account near the place of their residence along with the endorsement, PAN Card and Adhaar Card?
18. Permanent Residential Address of A-2B/39-B, MIG the claimant(s) Flats, Ekta Apartments, Paschim Vihar, New Delhi
19. Whether the claimant(s) savings Yes bank account(s) is near his place of residence?
20. Whether the claimant(s) was/were Yes examined at the time of passing of the award to ascertain his/their financial condition?
FACTUAL POSITION & PLEADINGS
1. Vide this judgment/award, this Tribunal shall decide the petition filed by the petitioners (second petitioner Smt. Kamla Chawla died during pendency) under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred as to MV Act) vide which they have prayed for passing an award of Anita Chawla vs. Ram Bhool Singh & Ors. MACT No.688/2019 Page No.3 of 25 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2022.12.20 16:05:32 +0530 Rs.70,00,000/- (Rupees Seventy Lakhs Only) as compensation on account of death of Sh. Jatinder Chawla who died in a road vehicular accident which took place on 29.10.2018 at Near Gate No. 2, Shubham Enclave, Paschim Vihar, New Delhi. CASE OF THE PETITIONER SIDE
2. In gist, the case of the petitioners as discernible from their petition is that deceased Jatinder Chawla was going on his scooty Honda Activa bearing registration No. DL-3S- CD-4697 (White Colour) on 29.10.2018 and when he reached at gate of Shubham Enclave at about 4:15 PM, then, the offending vehicle bearing registration No. DL-1LS-8766 came in a rash and negligent manner and hit the deceased. Due to collision, the deceased received grievous injuries. After the incident, the deceased was moved to the hospital where he was brought dead. The incident in question took place due to rash and negligent driving of the offending vehicle by respondent no.1. Deceased was a businessman and an LIC agent also. He was earning Rs.45,000/- to Rs.50,000/- per month. The respondent no.1 being driver, the respondent no.2 being owner and the respondent No. 3 being the insurer of the offending vehicle are jointly and severally liable to pay the compensation to the petitioners. The petitioner(s)/claimant(s) have sought compensation of Rs.70,00,000/- (Rupees Seventy Lakhs Only) from the respondents.
MISCELLANEOUS PROCEEDINGS
3. Notice of the petition was issued to the respondents, they appeared and filed their written statements/replies to the present petition.
RESPONSE OF THE RESPONDENTS NO. 1 Anita Chawla vs. Ram Bhool Singh & Ors. MACT No.688/2019 Page No.4 of 25 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2022.12.20 16:05:37 +0530
4. In gist, the response of the respondent no.01 as discernible from his reply(s)/written statement(s) is that the respondent no.1 was having a valid driving license and police obtained false and fabricated report of his DL being fake. With these main averments/statement of facts, the respondent no.1 has prayed for dismissal of the petition of the petitioner(s).
RESPONSE OF THE RESPONDENTS NO. 025. In gist, the response of the respondent no.02 as discernible from his reply(s)/written statement(s) is that deceased was liable for the accident. The averred offending vehicle was duly insured with respondent no.3. The respondent no.2 has verified antecedents of the respondent no.1 from his erstwhile employers who verified his driving to be genuine one. With these main averments/statement of facts, the respondent no.2 has prayed for dismissal of the petition of the petitioner(s). RESPONSE OF RESPONDENT NO.3
6. In gist, the response of the respondent no.3 as discernible from its written statement/reply is that the vehicle bearing registration No. DL-1LS-8766 was duly insured with it vide policy No. 272600/31/19/1751 valid for 03.10.2018 to 02.10.2019. The respondent no.01 was having a fake driving license at the time of incident so he was also challaned/charge- sheeted under Section 468/471 of The Indian Penal Code, 1860. The respondents no.1 & 2 were also not having any valid fitness certificate on the date and time of the incident. With these main averments/statement of facts, the respondent no.3 has prayed for dismissal of the petition of the petitioners/claimants.
Anita Chawla vs. Ram Bhool Singh & Ors. MACT No.688/2019 Page No.5 of 25
Digitally signed by
HARVINDER HARVINDER SINGH
SINGH Date: 2022.12.20
16:05:42 +0530
ISSUES
7.1 After completion of pleadings, the Scholarly
Predecessor of this Tribunal framed following issues on 13.02.2020:-
(1). Whether the deceased Sh.
Jatinder Chawla suffered fatal injuries in the accident that took place on 29.10.2018 at about 4.15 pm due to rash and negligent driving of vehicle bearing registration No. DL-1LS 8766 by the respondent no.1 Sh. Ram Bhool Singh, being owned by the respondent no.2 and insured with the respondent no.3? OPP.
(2). Whether the petitioners are entitled to compensation, if so, for what amount and from whom? OPP.
(3). Relief. 7.2 Thereafter, matter was fixed for evidence of petitioner side. PETITIONER SIDE EVIDENCE 8.1(a) The petitioner examined herself as PW-1 to
establish their claim. She tendered her evidence by way of affidavit Ex. PW1/A reiterating and supporting the contents of their petition particularly the fact that incident in question took place due to rash and negligent driving of the vehicle bearing registration No. DL-1LS-8766.
8.1(b) She relied upon the following documents in support of their claim:-
1. Certified copy of Final Report u/s 173 Cr. PC along with other Anita Chawla vs. Ram Bhool Singh & Ors. MACT No.688/2019 Page No.6 of 25 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2022.12.20 16:05:47 +0530 documents Ex.PW1/1
2. Certified copy of MLC of deceased Ex.PW1/2
3. Certified copy of death certificate of deceased Ex.PW1/3
4. Certified copy of death certificate of deceased issued by Sanjay Gandhi Memorial Hospital, Mangolpuri, Delhi Ex.PW1/4
5. Certified copy of vehicle valuation report Ex.PW1/5
6. Certified copy of RC of vehicle TATA 407 Ex.PW1/6
7. Certified copy of DL of driver Ram Bhool Ex.PW1/7
8. Certified copy of insurance policy of offending vehicle Ex.PW1/8
9. Certified copy of statements u/s 161 Cr. PC along with seizure memo Ex. PW1/9
10. Certified copy of Mechanical Inspection report of vehicle bearing No. DL-1S-8766 TATA 407 (offending vehicle) Ex.PW1/10
10. Certified copy of Mechanical Inspection report of vehicle bearing No. DL-3SCD-4697 Ex.PW1/11
12. Letter of Appointment of deceased Mark 1
13. Original Appointment-cum-renewal Letter of deceased Ex.PW1/13
14. Photocopy of certificate of computer course of deceased Ex.PW1/14
15. Photocopy of Graduation Certificate of deceased issued by University of Delhi Ex.PW1/15
16. Copy of Avon ID card of deceased Mark 2.
8.1(c). PW-1 was cross-examined at length by Ld. Counsels for the respondents which is not reproduced herein for the sake of brevity, however, it is worth mentioning here that she admitted in her cross-examination to not have witnessed the incident in question. She does not know whether her husband was filing Income Tax Returns or not. She has not placed any document on record in respect to income of her deceased husband. She however denied the suggestion that her husband Anita Chawla vs. Ram Bhool Singh & Ors. MACT No.688/2019 Page No.7 of 25 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2022.12.20 16:05:53 +0530 was not earning income of Rs.45,000/- to Rs.50,000/- per month. She also denied the suggestion that her husband was not doing any business, was not a LIC agent and cloth merchant.
8.1(d) The petitioner side also examined Sh. Praveen Kumar, Assistant Branch Manager, Sales, LIC of India as PW-2 who has brought on record the Agency status and earning record of deceased namely Sh. Jatinder Chawla as Ex.PW2/1 and Ex.PW2/2 respectively.
8.1(e) PW-2 was cross-examined by Ld. Counsel for the respondent no.3 and the same was adopted by the respondents no.1 &2. In his cross-examination, he admitted that agency status and earning record of deceased Jatinder Chawla brought by him are computerized and no certificate under Section 65B of Indian Evidence Act has been filed in support of Ex.PW2/1 and Ex.PW2/2.
9. Thereafter, PE was closed on the submissions of Ld. Counsel for petitioner side vide order dated 10.03.2022 and the matter was fixed for respondent side evidence. RESPONDENT SIDE EVIDENCE 10.1(a). The respondent no.2 examined himself as R2W1 and tendered his evidence by way of affidavit Ex.R2W1/A reiterating the averments/statement of facts made by him vide their written statement/reply to the petition. 10.1(b). R2W1 was cross-examined by the petitioner side and Ld. Counsel for the respondent no3 side in length which is not reproduced herein for the sake of brevity, however, it is worth mentioning that he admitted in his cross-examination that he has not personally visited RTO Allahabad to verify DL of Anita Chawla vs. Ram Bhool Singh & Ors. MACT No.688/2019 Page No.8 of 25 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2022.12.20 16:05:59 +0530 respondent no.1 and he does not know whether the DL of respondent no.1 is fake or genuine. 10.1(c). The respondent no.3 examined Ms. Bharti Meena, A.M. of respondent no.3 as R3W1 who tendered her evidence by way of affidavit Ex.R3W1/A reiterating and reaffirming the contents/stand taken by them vide their written statement. She relied upon the policy issued of the offending vehicle as Ex.
R3W1/1. She deposed that DL of respondent no.1 has not been issued by RTO, Allahabad, is fake, so he was chargesheeted for offences under section 468/471 IPC by IO. R3W1 was examined, not cross-examined by petitioner side and respondents no.1 &2 despite opportunity given and was discharged.
10.1(d). Evidence of respondents was closed vide order dated 03.08.2022 and thereafter, the matter was fixed for final arguments.
FINAL ARGUMENTS/SUBMISSIONS/CONTENTIONS 11.1. Submissions/contentions of the petitioner side are that the petitioner side has positively proved that the incident took place due to rash and negligent driving of the respondent no.1. The deceased was 52 years of age. It is submitted/contended by the petitioner side that award may be passed by this Tribunal as per claim made by the petitioners side.
11.2. Submissions/contentions of the respondents no.1 & 2 are that the petitioner side has failed to prove that incident took place due to rash and negligent driving of respondent no.1. The incident in question took place due to negligence of deceased himself.
Anita Chawla vs. Ram Bhool Singh & Ors. MACT No.688/2019 Page No.9 of 25
Digitally signed by
HARVINDER HARVINDER SINGH
SINGH Date: 2022.12.20
16:06:04 +0530
11.3. Submissions/contentions of the respondent no.3 are that the petitioner side has failed to prove that incident took place due to rash and negligent driving of the respondent no.1. It is clear from the statement of IO SI Imran Khan and the photographs submitted by him on record that the deceased has taken his vehicle towards the side of the canter/truck, otherwise his scooty could not have collided with the oil tank of the canter/truck in question. The incident happened due to rash and negligent driving of the deceased himself. The respondent no.03 is also not liable to pay compensation in this matter as the respondent no.01 was not having valid driving license to drive the canter/truck. It is further submitted/contended that in case the respondent no.03 is directed to pay any compensation to the petitioner/claimant then, recovery rights be given to the respondent no.03 to recover the amount paid from the respondent no.01 and 02.
ANALYSIS/FINDINGS ON ISSUES Issue No. (1) Whether the deceased Sh. Jatinder Chawla suffered fatal injuries in the accident that took place on 29.10.2018 at about 4.15 pm due to rash and negligent driving of vehicle bearing registration No. DL-1LS 8766 by the respondent no.1 Sh. Ram Bhool Singh, being owned by the respondent no.2 and insured with the respondent no.3? OPP.
12.(i) Before adverting to the facts of the present application/petition/DAR for deciding the above issue, at the very outset, it would be apposite to note here that the procedure followed by an accident claim tribunal is similar to what is followed by a civil court. In civil matters the facts are required Anita Chawla vs. Ram Bhool Singh & Ors. MACT No.688/2019 Page No.10 of 25 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2022.12.20 16:06:10 +0530 to be established by way of preponderance of probabilities only and not by strict rules of evidence or beyond reasonable doubt as is required in a criminal prosecution. The burden of proof in a civil case is never heavy as it is in a criminal case. In a claim application/petition under the M.V. Act, this burden is infact lesser than that of a civil case. Reference in this context can be made to the prepositions of law laid down by the Hon'ble Supreme Court in the case of Bimla Devi and others Vs. Himachal Road Transport Corporation and others, reported in (2009) 13 SC 530, which were reiterated in the subsequent judgments in the case of Parmeshwari Vs. Amir Chand and others 2011 (1) SCR 1096(Civil Appeal No.1082 of 2011) and Mangla Ram Vs. Oriental Insurance Co. Ltd. & Ors., 2018 Law Suit (SC) 303 etc.
12.(ii) Now keeping in mind the aforesaid legal principle/preposition for decision of the present issue, this Tribunal has gone through the testimony of the witnesses and entire material available on record. This Tribunal has also given thoughtful consideration to arguments addressed by Ld. counsel for the petitioner along with the statement of the petitioner/claimant/injured recorded under MCTAP.
12.(iii) The petitioner/applicant side has examined petitioner Smt. Anita Chawla as PW-1 who has reiterated and reaffirmed the facts put forth vide application/petition/DAR. She has specifically deposed in her examination-in-chief that the offending vehicle was driven by respondent no.1 in a very high speed, in rash and negligent manner. She has exhibited certified copy of final report under section 173 Cr. PC along with other documents as Ex.PW1/1, certified copy of MLC of Anita Chawla vs. Ram Bhool Singh & Ors. MACT No.688/2019 Page No.11 of 25 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2022.12.20 16:06:15 +0530 deceased as Ex.PW1/2, certified copy of statements u/s 161 Cr. PC along with seziure memo as Ex.PW1/9, certified copy of mechanical Inspection report of vehicle bearing registration No. DL-1S-8766 TATA 407(offending vehicle) as Ex.PW1/10 and certified copy of mechanical Inspection report of vehicle bearing registration NO. DL-3SCD-4697 as Ex.PW1/10. The first IO SI Imran Khan of case FIR No. 616/2018 PS Paschim Vihar East was also summoned during present enquiry. He was examined under Section 165 of Indian Evidence Act, 1872. He produced 20 photographs of the spot of incident and of both vehicles at spot in his examination. Same were taken on record as Ex.C-1. In his examination, he revealed that the road in question No. 30 of Paschim Vihar is divided by divider and both the vehicles were going in same direction towards ring road. No traffic was coming from the opposite side. The road in question is a busy road with a busy market nearby. The points of contact of TATA canter noted by him were oil tank available on its left side and its rear left tyre. He encircled/marked the points of contact with white chalk and same are visible in photographs Ex.C1. In view of facts revealed by examination of the IO SI Imran Khan, it is clear that vehicle of victim and the offending truck were going in same direction on a busy road without any traffic coming from the opposite side. The point of impact of the canter/truck noted by the IO suggest with certainty that the canter hit the scooter of the victim from behind first with its oil tank and then with rear tyre. This Tribunal sees no force in the contention of Ld. Counsel for the respondent no.3/insurance company that the scooter must have gone towards the side of the canter Anita Chawla vs. Ram Bhool Singh & Ors. MACT No.688/2019 Page No.12 of 25 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2022.12.20 16:06:23 +0530 otherwise, it could not have been hit by the oil tank which is few inches gist inside the body of the canter/truck. This Tribunal is of opinion that such a scenario is quite impossible particularly keeping in mind the fact that the scooter was on the left side of the canter/truck and can be guessed with certainty to be going ahead of canter/truck. There appears to be no probability that the deceased scooterist was behind the canter/truck and took his scooter beneath the truck/canter as in that scenerio it would not have been hit by rear tyre also. This Tribunal is satisfied that the scooty of the deceased must have been hit from behind on its right side by the canter/truck with the portion of the oil tank available on the left side of the canter and then with the rear left tyre. The fact that deceased scooterist was on the left side of the road and the canter/truck was traveling on his right side while going in same direction also lends support to fact that deceased was traveling on his scooty following all traffic rules. In given circumstances, the preponderance of probabilities lies in the favour of the petitioner side that the incident happened due to rash and negligent driving of canter/truck by the respondent no.1.The fact that respondent no.1 was challaned for offence punishable under Section 279/304-A of The Indian Panel Code, 1860 after conclusion of investigation also supports and affirms case of petitioner side as to the manner of incident.
12.(iv) The respondent no.1 was the best witness who could have rebutted the case of rashness and negligence of driving of the offending vehicle. But, respondent no.1 has chosen not to come in witness box to disprove the case of the petitioner side on said aspect. It is not even pleaded by any of Anita Chawla vs. Ram Bhool Singh & Ors. MACT No.688/2019 Page No.13 of 25 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2022.12.20 16:06:30 +0530 the respondents that the incident happened due to brake failure or any other mechanical defect beyond the control of the driver/respondent no.1. In the given circumstances, adverse inference also needs to be drawn against respondents. Reliance can be placed upon the decision of the matter of "Cholamandalam M.S. General Insurance Company Ltd. Vs. Kamlesh" 2009 (3) AD (Delhi) 310 on said issue/aspect.
12.(v) In totality of circumstances, this Tribunal is of the opinion that facts available on record proves almost at the scales of preponderance of probabilities that the incident in question took place due to rash and negligent driving of offending vehicle bearing No. DL-1LS-8766 by the respondent no.1 on the date and time of the incident. Accordingly, issue no.1 is decided in favour of the petitioner/claimant/LRs of the deceased and against the respondents.
Issue No. (ii) Whether the petitioner(s) is/are entitled to compensation, if so, for what amount and from whom? OPP.
13.(i) The petitioner(s) is/are certainly entitled for compensation in view of decision of above issue. The petitioner(s), in the claim petition have claimed that the deceased was aged about 52 years on the date of the accident. As per Aadhar Card of the deceased which is the part of DAR, the year of birth of the deceased was 1966. The date of accident is 29.10.2019. Accordingly, the age of the deceased is taken as 52 years on the date of accident.
13.(ii) It is claimed that the deceased was working as businessman and LIC Agent. He was earning around Rs.45,000/- to Rs.50,000/- per month. In order to prove income of the deceased, the petitioners have examined Sh. Praveen Anita Chawla vs. Ram Bhool Singh & Ors. MACT No.688/2019 Page No.14 of 25 Digitally signed HARVINDER by HARVINDER SINGH SINGH Date: 2022.12.20 16:06:40 +0530 Kumar, Assistant Branch Manager(Sales), LIC of India as PW-2 who has filed Agency Status Ex.PW2/1 and earning records of deceased Jatinder Chawla Ex.PW2/2 in his evidence. PW-2 admitted in his cross-examination that agency status and earning records of deceased Jatinder Chawla are computerized and certificate u/s 65B of Indian Evidence Act, 1872 has not been filed in support of Ex.PW2/1 and Ex.PW2/2.
13.(iii) The petitioner(s) has thus failed to prove the income of deceased from any business as any agency on record.
13.(iv) As petitioner(s) has/have failed to prove averred income of the deceased, therefore, the income of the deceased has to be assessed on the basis of the chart available in the Minimum Wages Act of a Graduate person of the State of NCT of Delhi. The minimum wages for a Graduate person of the State of NCT of Delhi on the date of accident i.e. 29.10.2018 were Rs.18,462/- per month.
13.(v) The petitioners, in the claim petition have stated that the deceased left behind his wife and mother. However, petitioner no.2 Kamla Chawla expired on 15.05.2021.
13.(vi) Considering the totality of facts and circumstances of present case, all the claimants/applicants/petitioners are taken as dependents upon the income of the deceased at the time of the accident.
13.(vii) As per judgment of the Hon'ble Supreme Court of India in the matter of 'Sarla Verma Vs. DTC 2009 ACJ 1298 SC, the deceased must have been spending one-third of Rs.18,462/- on his personal expenses as he had left behind two dependents. Therefore, after deducting one-third towards personal expenses, the loss of dependency per month comes out Anita Chawla vs. Ram Bhool Singh & Ors. MACT No.688/2019 Page No.15 of 25 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2022.12.20 16:06:46 +0530 to be Rs.12,308/- =(Rs. 18,462/- less Rs.6154/-).
13.(viii). Hon'ble Supreme Court of India in its constitution bench decision in matter of "National Insurance Company Limited Vs. Pranay Sethi & Ors." (2017) 16 SCC 680 held as under : -
"58. To lay down as a thumb rule that there will be no addition after 50 years will be an unacceptable concept. We are disposed to think, there should be an addition of 15% if the deceased is between the age of 50 to 60 years and there should be no addition thereafter. Similarly, in case of self- employed or person on fixed salary, the addition should be 10% between the age of 50 to 60 years. The aforesaid yardstick has been fixed so that there can be consistency in the approach by the tribunals and the Courts.
59. In view of the aforesaid analysis, we proceed to record our conclusions:-
(i) The two-Judge Bench in Santosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench.
(ii) As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent.
(iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.
(iv) In case the deceased was 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 Anita Chawla vs. Ram Bhool Singh & Ors. MACT No.688/2019 Page No.16 of 25 Digitally signed HARVINDER by HARVINDER SINGH SINGH Date: 2022.12.20 16:06:54 +0530 income means the income minus the tax component.
(v) For 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 funeral 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.
13.(ix) The Hon'ble High Court of Delhi in MAC Appeal No. 798/2011 titled as Bajaj Allianz General Insurance company Ltd. vs. Pooja & ors decided on 02.11.2017 has held that even in the cases where the income of the deceased is calculated on the basis of the minimum wages, the benefit of future prospects has to be given in accordance with the guidelines issued by the Hon'ble Supreme Court of India applicable to self employed or privately employed persons.
13.(x) The multiplier has to be selected as per the age of the deceased which is 52 years in the case in hand, accordingly, the multiplier of 11 as per judgment of Sarla Verma vs. DTC 2009 ACJ 1298 SC shall be applicable in this case.
13.(xi) An addition of 10% on account of the future prospects has also to be made as the age of the deceased was 52 years. Accordingly, the monthly income of the deceased has to be calculated as Rs.13,539/- (after rounding off Rs.13,538.8/-) (Rs.12308/- + Rs.1230.8/- which is 10% of Rs.12308/-).
13.(xii) The appropriate multiplier applicable is '11' (for Anita Chawla vs. Ram Bhool Singh & Ors. MACT No.688/2019 Page No.17 of 25 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2022.12.20 16:07:00 +0530
the age group of 51 years to 55 years) as provided by Sarla Verma's judgment (Supra). Hence, the total loss of dependency comes out to Rs.17,87,148/- = (Rs.13,539x 12 x 11).
13.(xiii) The Hon'ble Supreme Court of India in, National Insurance Company Limited vs. Pranay Sethi & ors (2017) 16 SCC 680 has granted a sum of Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- on account of loss of estate, loss of consortium and funeral expenses respectively. The aforesaid amounts are to be enhanced at the rate of 10% every three years as per said judgment itself.
13.(xiv) In view of same, this Tribunal hereby award Rs. 16,500/- towards loss of estate; Rs.88,000/- towards loss of consortium [Rs.44,000/- x 2(wife and mother)] and Rs.16,500/- towards funeral expenses.
13.(xv) Therefore, in total, this Tribunal hereby award a sum of Rs.19,08,148/- (Rupees Nineteen Lakhs Eight Hundred One Hundred and Forty Eight Only) = (Rs.17,87,148/- + Rs. 1,21,000/-) in favour of the applicant(s)/petitioner(s)/claimant(s) and against the respondents.
R E L I EF / ISSUE NO.3
14. This Tribunal passes an award of Rs.19,08,148/- (Rupees Nineteen Lakhs Eight Hundred One Hundred and Forty Eight Only) as compensation with interest @ 6% per annum (including interim award, if any) from the date of filing the application/DAR/claim petition i.e. 25.09.2019 till the date of the payment of the award amount, in favour of the applicant(s)/petitioner(s) and against the respondents on Anita Chawla vs. Ram Bhool Singh & Ors. MACT No.688/2019 Page No.18 of 25 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2022.12.20 16:07:05 +0530 account of their liability being joint and several.
APPORTIONMENT OF LIABILITY
15.(i) Ld. Counsel for the respondent no.3 has argued that the respondent no.01 was having fake driving license and was challaned/charge-sheeted under Section 468/471 of IPC.
15.(ii) In order to prove its stand/defence, the insurance company/respondent no.3 has examined Ms. Bharti Meena, A.M Oriental Insurance Co. Ltd. as R3W1 who has proved on record the policy issued to the offending vehicle as Ex.R3W1/1. She has deposed that the DL of respondent no.1 was not issued from RTA Allahabad and is fake, so he was challaned for offences punishable under section 468/471 IPC by IO. R3W1 was not cross-examined by the respondents no.1 & 2.
15.(iii) The respondent no.1 has also not led any evidence to controvert the stand/evidence brought on record by the insurance company. Perusal of the DAR reveals that the IO has also challaned the respondent no.1 under Section 468/471 MV Act. So, it is established on record that the respondent no.01 was not having any valid driving license to drive the vehicle in question at the time of the incident. Accordingly, the respondent no.3/insurance company is held entitled to recovery rights against the respondents no.1 & 2. The respondent no.3 shall be entitled to recover the award amount from the respondents no.1 &2, but only after deposition of the award amount in the account of this Tribunal in favour of petitioner/injured/claimant.
15.(iv) As the offending vehicle was admittedly insured with the respondent No.3/Insurance company, the respondent Anita Chawla vs. Ram Bhool Singh & Ors. MACT No.688/2019 Page No.19 of 25 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2022.12.20 16:07:12 +0530 No.3/insurance company is hereby directed to deposit the award amount in favour of the petitioner(s)/claimant(s) with SBI,Tis Hazari Court, Delhi in the MACT Account of this Tribunal having Account no. 40711767202 CIF no. 90891362578, IFSC Code. SBIN0000726 Tis Hazari Courts, Delhi in favour the petitioners as stated herein above within a period of 30 days from the date of passing of this award together with the interest as stated herein above under the intimation to this Tribunal and under intimation to the petitioner/claimant/applicant. In case of any delay, it shall be liable to pay interest at the rate of 9% per annum for the period of delay.
MODE OF DISBURSEMENT OF THE AWARD AMOUNT TO THE CLAIMANTS AS PER THE PROVISIONS OF THE 'MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE' (MCTAP).
16.(i) The applicant/petitioner was examined under MCTAP on 22.09.2022 and her statement considered.
16.(ii) The Hon'ble High Court of Delhi in FAO no. 842/2003 titled as Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors has formulated MACAD(Motor Accident Claims Annunity Deposit Scheme) vide order dated 07.12.2018 which has been made effective from 01.01.2019. The said orders provides 21 banks including State Bank of India as one of the banks which have to adhere to MACAD. The State Bank of India, Tis Hazari Courts, Delhi is directed to disburse the amount in accordance with MACAD formulated by the Hon'ble High Court of Delhi.
16.(iii) Keeping in view the entirety of the facts and circumstances of the present case and the abovesaid guidelines Anita Chawla vs. Ram Bhool Singh & Ors. MACT No.688/2019 Page No.20 of 25 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2022.12.20 16:07:18 +0530 laid down by the Hon'ble High Court of Delhi, the respondent No.3/insurance company is directed to deposit the award amount of Rs.19,08,148/- (Rupees Nineteen Lakhs Eight Hundred One Hundred and Forty Eight Only) with interest as stated herein above with SBI,Tis Hazari Court, Delhi in the MACT Account of this Tribunal having Account no. 40711767202 CIF no. 90891362578, IFSC Code. SBIN0000726 Tis Hazari Courts, Delhi in favour the petitioner(s)/applicant(s)/claimant(s) as stated herein above.
16.(iv) The Manager, SBI, Tis Hazari Delhi is directed to release/disburse award amount in favour of petitioner as mentioned/directed hereinafter.
16.(v) The compensation to the petitioner(s) shall be distributed/disbursed as follows:-
Sl. Name of Age Relatio Amount Amount of Amount kept Period of FDRs with no. the n with award of award to be in FDRs cumulative interest petitioners/ injured/ rupees released claimants decease d
1. Anita DOB: Wife 19,08,148/- 3,08,148/- Rs.16,00,00 Rs.16,00,000/- + Chawla 13.10. 0/- + interest 1966 interest accumulated accumulate shall be kept in d the form of equal monthly FDRs of Rs.10,000/- for the period of 160 months + months which comes out of division of interest accumulated by Rs.10,000/-. The FDRs shall be numbered as 1st to last. The amount of FDRs alongwith interest Anita Chawla vs. Ram Bhool Singh & Ors. MACT No.688/2019 Page No.21 of 25 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2022.12.20 16:07:24 +0530 shall be released to the petitioner on monthly basis TOTAL Rs.19,08,148/-
16.(vi) The following conditions shall be adhered to by SBI, Tis Hazari Courts, Delhi with respect to the fixed deposits:-
(a) The Bank shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the claimant(s) i.e. the savings bank account(s) of the claimant(s) shall be an individual savings bank account(s) and not a joint account(s).
(b) The original fixed deposit shall be retained by the bank in safe custody. However, the statement containing FDR number, FDR amount, date of maturity and maturity amount shall be furnished by bank to the claimant(s).
(c) The 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.
(d) No loan, advance, withdrawal or pre-
mature discharge be allowed on the fixed deposits without permission of the Court.
(e) 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. 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.
(f) 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.
(g) It is clarified that the endorsement made by the bank along with the duly signed and stamped by the bank official on the passbook(s) of the claimant(s) is sufficient compliance of clause (g) above.
Anita Chawla vs. Ram Bhool Singh & Ors. MACT No.688/2019 Page No.22 of 25 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2022.12.20 16:07:31 +0530 16.(vii) In accordance with the orders dated 08.02.2019
passed by the Hon'ble High Court of Delhi in FAO no. 842/2003 in Rajesh Tyagi and others Vs. Jaibir Singh and others, Mr. Rajan Singh, Assistant General Manager has been appointed as Nodal Officer of SBI having Phone no. 022- 22741336/9414048606 and e mail ID [email protected]. In case of any assistance or non compliance, the aforesaid Nodal Officer may be contacted. A copy of this order be sent by e- mail to the aforesaid Nodal Officer of the aforesaid bank by the Ahlmad of the Court immediately in accordance with the directions of the Hon'ble High Court as given in the orders dated 07.12.2018. The Nodal Officer of the bank shall ensure the disbursement of the award amount within three weeks of the receipt of the e-mail as mentioned in the orders dated 07.12.2018 passed by the Hon'ble High Court of Delhi.
16.(viii) A separate file be prepared for compliance report by the Nazir and put up the same on 27.01.2023.
16.(ix) A copy of this award be given to the insurance company as well as to the petitioners free of cost.
16.(x) A copy of this award be sent to the concerned Ld. Metropolitan Magistrate as well as DSLSA as per the provisions of the MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE (MCTAP).
17. File be consigned to Record Room.
Digitally signed byHARVINDER HARVINDER SINGH Announced in the open Tribunal SINGH Date: 2022.12.20 16:07:38 +0530 on 20.12.2022.
(HARVINDER SINGH) PO:MACT-01/West, THC/Delhi/20.12.2022 Anita Chawla vs. Ram Bhool Singh & Ors. MACT No.688/2019 Page No.23 of 25 FORM -XV SUMMARY OF COMPUTATION OF AWARD AMOUNT IN DEATH CASES
1. Date of accident. :
29.10.2018
2. Name of the deceased :
Jatinder Chawla
3. Age of the deceased :
YOB: 1966
4. Occupation of the deceased :
Not Proved
5. Income of the deceased :
Rs.18,462/- as per Minimum Wages of NCT of Delhi
6. Name, age and relationship of legal representative of deceased:-
S. Name Age Relation
No.
1. Anita Chawla DOB: 13.10.1966 Wife
Computation of Compensation
Sr. Heads Awarded by the Claim
No. Tribunal
7. Income of the Rs.18,462/-
deceased(A)
8. Add-Future Prospects (B) 10%
9. Less-Personal expenses 1/3 deduction has been done
of the deceased(C)
10. Monthly loss of Rs.13,539/-
dependency[(A+B)-C=D]
11. Annual loss of Rs.1,62,468/-
dependency (Dx12) (Rs.13,539/- x 12)
12. Multiplier(E) 11
13. Total loss of dependency Rs.17,87,148/- (Rs.13,539/- x
(Dx12xE= F) 12 x 11)
14. Medical Expenses(G) NIL
15. Compensation for loss of Rs.88,000/- (Rs.44,000/- x 2)
consortium(H)
Anita Chawla vs. Ram Bhool Singh & Ors. MACT No.688/2019 Page No.24 of 25
Digitally signed by
HARVINDER
HARVINDER SINGH
SINGH Date: 2022.12.20
16:07:44 +0530
16. Compensation for loss of NIL
love and affection(I)
17. Compensation for loss of Rs.16,500/-
estate(J)
18. Compensation towards Rs.16,500/-
funeral expenses(K)
19. TOTAL Rs.19,08,148/-
COMPENSATION
(F+G+H+I+J+K=L)
20. RATE OF INTEREST 6% per annum
AWARDED
21. Interest amount up to Rs.3,70,498.62
the date of award (M) (W.e.f. 25.09.2019 to
20.12.2022 i.e. 3 years 2
months and 25 days)
22. Total amount including Rs.22,78,646.62
interest (Rs.19,08,148+
(L + M) Rs.3,70,498.62)
23. Award amount released Rs.3,08,148/-
24. Award amount kept in Rs.16,00,000/- + interest
FDRs accumulated
25. Mode of disbursement Mentioned in the award
of the award amount to
the claimant (s).
26. Next date for 27.01.2023
compliance of the
award.
Digitally signed by
HARVINDER HARVINDER SINGH
SINGH Date: 2022.12.20
16:07:52 +0530
(HARVINDER SINGH)
P.O.MACT (WEST-01)
THC/Delhi (20.12.2022)
Anita Chawla vs. Ram Bhool Singh & Ors. MACT No.688/2019 Page No.25 of 25