Delhi District Court
Lrs Of Kishan vs Sambhu Tanti Page 1 Of 21 on 26 April, 2018
LRs of Kishan vs Sambhu Tanti Page 1 of 21
IN THE COURT OF SH. AMIT BANSAL , PRESIDING OFFICER, MOTOR
ACCIDENT CLAIMS TRIBUNAL, NORTH WEST DISTRICT, ROHINI
COURTS, DELHI
New No. 4925416
MACT PETITION No. : 197/14
UNIQUE ID No. : DLNW010000532014
1. Smt. Asha Sharma
(wife of deceased Sh. Kishan)
.....Petitioner No.1.
2. Ms. Manisha Sharma
(major daughter of deceased)
......Petitioner No.2.
3. Ms. Sapna Sharma
( major daughter of deceased)
.......Petitioner No.3.
4. Harsh Sharma
( minor son of deceased)
.......Petitioner No.4.
5. Smt. Chanderkala W/o Sh. Banwari Lal
( mother of deceased)
.......Petitioner No.5.
6. Sh. Banwari Lal S/o Late Sh. Tika Ram
( father of deceased)
.......Petitioner No.6.
All R/o A3/39, Utsav Vihar, Karala, Delhi81
Versus
1. Sh. Sambhu Tanti S/o Sh. S.K. Tanti
R/o 1/3, Bally Gunge Place,
Kolkata700019
.... (Driver /R1)
2. Sh. Sita Ram S/o Sh. Bajo Yadav
R/o B18, Block B, Vikas Vihar, Delhi12
......... (Owner /R2)
3. M/s Bharti Axa General Insurance Co Ltd.
7th Floor, Prakashdeep Building,
7, Tolstoy Marg, New Delhi1
......... (Insurance/R3)
..... Respondents
LRs of Kishan vs Shabhu Tanti Page 1 of 21
LRs of Kishan vs Sambhu Tanti Page 2 of 21
Other details
DATE OF INSTITUTION : 16.01.2014
DATE OF RESERVING JUDGMENT : 12.04.2018
DATE OF PRONOUNCEMENT : 26.04.2018
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 CLAUSE 4.3 OF THE
ORDER PASSED BY THE HON'BLE HIGH COURT IN FAO 842/2003
RAJESH TYAGI Vs. JAIBIR SINGH & ORS. & SOBAT SINGH VS
RAMESH CHANDRA GUPTA & ANR., MAC.APP 422/2009 VIDE
ORDER DATED 15.12.2017
1. Date of the accident 17.09.2013
2. Date of intimation of the accident by the 06.05.2014
investigating officer to the Claims Tribunal
(Clause 2)
3. Date of intimation of the accident by the 06.05.2014
investigating officer to the insurance company.
(Clause 2)
4. Date of filing of Report under section 173 Not mentioned in the
Cr.P.C. before the Metropolitan Magistrate record.
(Clause 10)
5. Date of filing of Detailed Accident Information 06.05.2014
Report (DAR) by the investigating Officer before
Claims Tribunal (Clause 10)
6. Date of Service of DAR on the Insurance 06.05.2014
Company (Clause 11)
7. Date of service of DAR on the claimant (s). 06.05.2014
(Clause 11)
8. Whether DAR was complete in all respects? Yes.
(Clause 16)
9. If not, whether deficiencies in the DAR removed N/A
LRs of Kishan vs Shabhu Tanti Page 2 of 21
LRs of Kishan vs Sambhu Tanti Page 3 of 21
later on?
10. Whether the police has verified the documents Yes
filed with DAR? (Clause 4)
11. Whether there was any delay or deficiency on No.
the part of the Investigating Officer? If so,
whether any action/direction warranted?
12. Date of appointment of the Designated Officer 06.05.2014
by the insurance Company. (Clause20)
13. Name, address and contact number of the Adv. Sh. M. Awasthi
Designated Officer of the Insurance Company.
(Clause 20)
14. Whether the designated Officer of the Insurance No.
Company submitted his report within 30 days of
the DAR? (Clause 20)
15. Whether the insurance company admitted the No.
liability? If so, whether the Designated Officer of
the insurance company fairly computed the
compensation in accordance with law. (Clause
23)
16. Whether there was any delay or deficiency on
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 legal offer filed
of the Insurance Company .(Clause 24)
18. Date of the Award 26.04.2018
19. Whether the award was passed with the consent No
of the parties? (Clause 22)
20. Whether the claimant(s) were directed to open Yes
saving bank account(s) near their place of
residence? (Clause 18)
21. Date of order by which claimant(s) were 12.01.2018
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). (Clause 18)
22. Date on which the claimant (s) produced the 12.04.2018
passbook of their saving bank account near the
place of their residence along with the
endorsement, PAN Card and Aadhar Card?
(Clause 18)
LRs of Kishan vs Shabhu Tanti Page 3 of 21
LRs of Kishan vs Sambhu Tanti Page 4 of 21
23. Permanent Residential Address of the As mentioned above
Claimant(s) (Clause 27)
24. Details of saving bank account(s) of the Petitioner no. 1 Smt.
claimant(s) and the address of the bank with Asha Sharmasavings
IFSC Code (Clause 27) bank a/c no.
604202010023965,
petitioner no. 2 Sh.
Manish Sharma
savings bank a/c
604202010023964,
petitioner no. 3 Ms.
Sapna Sharma,
savings bank a/c no.
604202010023963
and petitioner no.4
Harsh Sharma,
Savings bank a/c no.
604202010023966
with UBI, Sector22,
Rohini, Delhi.
IFSC : UBIN0560421
Petitioners no. 5 & 6
relinquished their
respective shares in
favour of petitioner
no. 2 & 3 vide
statement dated
23.02.2018.
25. Whether the claimant(s) saving bank account(s) Yes
is near his place of residence? (Clause 27)
26. Whether the claimant(s) were examined at the Yes
time of passing of the award. (Clause 27)
27. Account number/CIF No, MICR number, IFSC 86143654123,
Code, name and branch of the bank of the 110002427,
Claims Tribunal in which the award amount is to SBIN0010323, SBI,
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.
LRs of Kishan vs Shabhu Tanti Page 4 of 21
LRs of Kishan vs Sambhu Tanti Page 5 of 21
JUDGMENT
1. The Detailed Accident Report (hereinafter referred to as DAR) was filed in this case on 06.05.2014 with reference to FIR No.281/13 U/s 279/337 IPC PS Kanjhawala in respect of death of Kishan s/o Banwari Lal.
It is pertinent to note that petitioners have also filed a petition u/s 166/140 of M.V. Act on 16.01.2014. The record would show that vide order dated 21.05.14 ld predecessor of this court ordered that the petition be clubbed with the DAR.
2. The petitioners have averred in the petition/DAR that on 17.09.2013 at about 5:30 p.m, Sh. Kishan (hereinafter referred to as 'deceased') along with Dharam Raj @ Ramu were coming to Utsav Vihar, Karala from Bawana by Maruti Van no. DL5CJ2586 at a normal speed and correct side of the road. It was averred that when they reached near Peer Baba Mazar Qabristan, Sultanpur Karala Road, Delhi then a tempo bearing registration No. DL1LP0445 (hereinafter referred to as 'offending vehicle') which was being driven by respondent no. 1 at a very high speed, rashly and negligently came from front side/wrong side and hit the maruti van with a great force. As a result of the said accident, Sh. Kishan (deceased) sustained grievous injuries. It is averred that deceased was taken to SGM hospital, Delhi by PCR where he died during the course of treatment and his postmortem was conducted on 18.09.2013 at mortuary SGM hospital, Mangolpuri, Delhi.
It has been mentioned in the petition that FIR No. 281/13 u/s 279/337 IPC was registered at PS Kanjhawala.
It was mentioned in the petition that at the time of the death, the age of the deceased was about 45 years, he was running business under the name and style of Harsh Metal Works, Plot No. 284, Ground Floor, PocketE, Sector4, DSIDC Industrial Area Bawana, Delhi and was earning Rs. 4,25,752/ per annum.
On the basis of these averments, the petitioners/claimants LRs of Kishan vs Shabhu Tanti Page 5 of 21 LRs of Kishan vs Sambhu Tanti Page 6 of 21 have claimed compensation to the tune of Rs. 70,00,000/ along with interest @ 18% per annum against the respondents.
3. R1/Sh. Sambhu Tanti who is the driver of the offending vehicle and R2/Sita Ram who is the owner of the offending vehicle have not filed any written statement. The record would show that R1 and R2 were proceeded against exparte vide order dated 28.07.17.
4. R3/Bharti Axa General Insurance co. Ltd filed its written statement and submitted that the offending vehicle was insured with it vide policy no. FCV/S1517769/11/09/D/1111Q valid from 17.09.2013 till 16.09.2014 i.e. covering the date of accident dated 17.09.2013. It was further averred that driving license no. WB0120020586592 of R1 has not been issued by the licensing authority Kolkata as per verification of the IO in the DAR and driver has been charge sheeted by the police vide FIR No. 281/13 U/s 279/337/304A/420/468/471 IPC.
5. From the pleadings of the parties, the following issues were framed by Ld. Predecessor of this court vide order dated 08.07.2015: (1) Whether on 17.09.13, at about 5:30 pm, at Sultanpur Karala Road, near Peer Baba Mazar, Qabristan,Delhi, one tempo bearing registration no. DL1LP0445, which was being driven by Sambhu Tanti rashly and negligently hit the Maruti van bearing registration no. DL5CJ2586 and caused the death of Kishan?
2. Whether petitioners are entitled to compensation, if so, to what amount and from whom?
3. Relief.
6. The record would show that there are total two case arising out of the said case accident which are as under:
1. LR's of Kishan vs Sambhu Tanti, MACT No. 197/14 (Present case) &
2. Dharam Raj vs Sambhu Tanti, MACT No. 265/18 It is an admitted position that both the said two cases are inter LRs of Kishan vs Shabhu Tanti Page 6 of 21 LRs of Kishan vs Sambhu Tanti Page 7 of 21 related and inter connected arising out of the same accident and therefore, the evidence and documents of any file can be read in any other file. The evidence of both the cases is lying attached in the file of MACT No. 197/14.
7. The petitioners in support of their case have examined total three witnesses in all i.e. Smt. Asha Sharma (wife/petitioner no.1) as PW1, Sh. Dharam Raj @ Ramu as PW2 and Sh. Rahul Sharma, Tax Assistant, as PW3. Insurance co/R3 has examined Ms. Shreshta Kalonia, Executive Legal, Bharti Axa GIC Ltd as R3W1.
On the other hand, R1 and R2 did not lead any evidence in support of their case.
8. I have heard the arguments addressed on behalf of ld counsel for petitioners and ld counsel for R3. Now, I proceed to discuss the issues in the succeeding paragraphs.
9. Issue wise findings are as under: Issue No. (1) The onus to prove this issue beyond preponderance of probabilities is upon the petitioners.
Smt. Asha Sharma (wife of deceased) has examined herself as PW1. She has filed and proved her evidence by way of affidavit as Ex. PW1/A. She has proved the various documents as Ex. PW1/1 to Ex. PW1/9 i.e. copy of death certificate of deceased, copy of PAN card of deceased, copy of election card of deceased, copies of aadhar card and election card of petitioners and photocopy of income tax returns.
During cross examination as conducted on behalf of insurance co. she has clearly admitted that she was not an eye witness to the accident.
Sh. Dharam Raj has been examined by the petitioners as an eye witness to the case accident as PW2. He deposed that on 17.09.2013 at about 5:30 pm he along with deceased were coming to Utsav Vihar, Karala from Bawana by Maruti van no. DL5CJ2586 which was being driven by LRs of Kishan vs Shabhu Tanti Page 7 of 21 LRs of Kishan vs Sambhu Tanti Page 8 of 21 deceased at a normal speed and on correct side of the road. He has deposed that when they reached near Peer Baba Mazar Qabristan, Sultanpur Karala Road, Delhi then a tempo bearing registration No. DL1LP0445 (hereinafter referred to as 'offending vehicle') which was being driven by respondent no. 1 at a very high speed, rashly and negligently came from front side/wrong side and hit the Maruti van with a great force after changing its driving lane. He deposed that as a result of the said accident, Sh. Kishan (deceased) sustained grievous injuries. He has deposed that he and deceased were taken to SGM hospital, Delhi where the deceased died during the course of treatment.
PW2 was not cross examined by ld counsel for R1 and R2 and his cross examination by them was nil, opportunity given. In the said circumstances, R1 and R2 shall be deemed to admit the above said testimony of PW2, an eye witness of the accident, to the effect that the case accident was caused at the above said date, time and place by the rash and negligent driving of the above said offending vehicle by R1.
In his cross examination by ld counsel for R3/Insurance Co., PW2 inter alia deposed that he was sitting in front seat of the vehicle and the offending vehicle was coming at a very fast speed. He has deposed that there was no divider at the spot. He has denied the suggestion that the said accident occurred due to rash and negligent driving of Maruti van.
Nothing has appeared in the cross examination of PW2 to discredit his testimony on any score. PW2 from his testimony has clearly proved beyond preponderance of probabilities that the case accident was caused at the above said date, time and place and in the above said manner by the rash and negligent driving of R1 by which he drove the offending vehicle rashly and negligently and hit the van of the deceased and caused his death.
The charge sheet in the criminal case FIR No. 281/13, PS Kanjhawala was filed against R1/driver of the offending vehicle u/s LRs of Kishan vs Shabhu Tanti Page 8 of 21 LRs of Kishan vs Sambhu Tanti Page 9 of 21 279/338/304A/420/468/471 IPC.
The postmortem report no. 930/13 dated 18.09.2013 upon the deceased at SGM hospital would also show the cause of death was due to shock associated with damage for abdomen & both legs structures as a result of blunt force impact which could be possible in a RTA as alleged and that all injuries are antemortem in nature.
In view of the aforesaid discussion, the material and evidence which has come on record, it is held that the petitioners have been able to prove on the basis of preponderance of probabilities that the deceased died in the said accident due to rash and negligent driving of the offending vehicle by R1.
Issue no.1 is decided accordingly in favour of the petitioners and against the respondents.
10. Issue No. (2) In view of findings of issue no.1 petitioners are entitled to compensation.
(a) Smt. Asha Sharma (wife of deceased) has examined herself as PW1. She filed and proved her evidence by way of affidavit as Ex. PW1/A. She has proved the various documents as Ex. PW1/1 to Ex. PW1/9. The copy of PAN Card of deceased has been proved as Ex. PW1/2 wherein the date of birth of deceased has been mentioned as 16.09.1967. It would show that the deceased was aged about 46 years & 1 day at the time of his death. (date of birth is 16.09.1967 and date of death is 17.09.2013).
PW1 also deposed that her husband was a businessman and running a business under the name and style "Harsh Metal Works," Plot No. 284, Ground Floor, Pocket E, Sector4, DSIDC Industrial Area, Bawana, Delhi and was earning Rs. 4,25,752/ per annum.
Petitioners, to prove the said contention, have examined Sh.Rahul Sharma, Tax Assistant, Ward No. 37(2), CIT 13, Delhi as PW3. He LRs of Kishan vs Shabhu Tanti Page 9 of 21 LRs of Kishan vs Sambhu Tanti Page 10 of 21 has proved the authority letter in his favour as Ex. PW3/1. He has proved the income tax return of the deceased for the assessment year 201112 as Ex. PW3/2, income tax return for the assessment year 201213 as Ex. PW3/3 and assessment year 201314 as Ex. PW3/4 wherein he has deposed that for the assessment year 201213 the income of the deceased from business was Rs. 2,30,553/ and from other sources was Rs. 20,650/. He has deposed that a tax of Rs. 1000/ has been paid. The record would show that the total tax payable in Ex. PW3/3 was in fact Rs. 993/.
He was cross examined by insurance co./R3 during which he has deposed that the summoned record had been handed over to him by the income tax officer Sh. Chet Ram Meena.
Nothing has appeared in the cross examination of PW3 by ld counsel for R3/insurance co. to discredit his testimony.
During arguments the ld counsel for petitioners fairly admitted that income tax return Ex. PW3/4 for the assessment year 201314 was in fact filed on 18.10.2013 i.e. after the death of the deceased and no basis has been shown on record for the quantum jump in the business income for the assessment year 201213 to 201314. It was further fairly admitted that the income of the deceased be computed from the income tax return of the assessment year 201213 Ex. PW3/3 which was in fact filed on 25.01.2013 i.e. before the death of the deceased which occurred on 17.09.2013. It would show the gross total income of the deceased as Rs.2,51,203/ and income tax deduction of Rs. 993/.
As per the case of petitioners and documents proved on record, deceased Sh. Kishan was aged about 46 years & 1 day and his total income was Rs. 2,50,210/per annum (Gross total income of Rs. 2,51,203/ minus net tax of Rs. 993/ as per income tax return for the assessment year 2012 2013 which has been proved as Ex. PW3/3 (colly).
Accordingly, it would be reasonable and just to consider the income of deceased as Rs. 2,50,210/ per annum on the date of accident in question. His monthly income thus comes to Rs. 20,850/ (after rounding off) (Rs.
LRs of Kishan vs Shabhu Tanti Page 10 of 21 LRs of Kishan vs Sambhu Tanti Page 11 of 212,50,210/ divided by 12).
(b) Addition of future prospects If addition in income towards future prospects is to be made In this regard, reference should be made to the latest 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.
In the said judgment of Pranay Sethi (Supra), the Hon'ble Apex Court interalia 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 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 selfemployed 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 LRs of Kishan vs Shabhu Tanti Page 11 of 21 LRs of Kishan vs Sambhu Tanti Page 12 of 21 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) In the case in hand, the deceased was self employed and in terms of above said judgment, while determining his 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.
The age of the deceased, as discussed above, in the present case was about 46 years 1 day. In view of paragraph no. 61 (iv) of above said judgment in Pranay Sethi (Supra), the deceased would be entitled to an addition of 25% of the established income as he was between the age group of 40 to 50 years at the time of his death.
The monthly income of the deceased is thus calculated as Rs. 20,850/+25% of 20,850/ which comes to Rs. 20,850/+ Rs. 5212/ = Rs. 26,062/.
(c) Deduction towards personal and living expenses of the deceased:
Petitioner no. 1 is the wife of deceased, petitioners no 2 to 4 are the daughters and son of deceased and petitioner no. 5 & 6 are the parents of deceased.
In the present case, the deceased was married and his dependent LRs of Kishan vs Shabhu Tanti Page 12 of 21 LRs of Kishan vs Sambhu Tanti Page 13 of 21 family members were 6, hence, the deduction towards personal and living expenses of the deceased should be 1/4th in view of the settled law by the Hon'ble Apex Court in cases of Sarla Verma vs. Delhi Transport Corporation, 2009 ACJ 1298: (2009) 6 SCC 121 which has been upheld by the Constitutional Bench of Hon'ble Apex Court in the case of Pranay Sethi (Supra) in paragraph no 61 (v) of the judgment.
(d) Selection of multiplier:
As discussed above, the age of the deceased was about 46 years & 1 day at the time of his death. In view of paragraph no. 61(vii) of the judgment in the case of Pranay Sethi (Supra), the age of deceased should be the basis for applying the multiplier. As per the case of Sarla Verma (Supra), the multiplier of 13 is to be adopted when the age of the victim is between 46 years to 50 years. Accordingly, the relevant multiplier would be "13" as per judgment in case of Sarla Verma (Supra) which has been upheld in paragraph no. 61 (vi) in case of Pranay Sethi (Supra).
(e) Loss of financial dependency In the light of aforesaid facts, loss of financial dependency of the petitioner comes to Rs. 30,49,254/ [i.e. Rs. 26,062/ ( per month income of the deceased) X12 X13 (multiplier) X3/4 (dependency)].
11. Compensation under nonpecuniary heads/conventional heads:
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 of estate and Rs. 15,000/ towards funeral expenses. Petitioner no. 1 who is the wife of deceased would be entitled to Rs. 40,000/ towards loss of consortium.
12. LOSS OF LOVE & AFFECTION The Hon'ble Delhi High Court in the latest case of Bajaj Allianz General Insurance Company Ltd. Vs Pooja & Ors, MAC Appeal 798/2011, date of decision 02.11.2017 after referring to the judgment of "National LRs of Kishan vs Shabhu Tanti Page 13 of 21 LRs of Kishan vs Sambhu Tanti Page 14 of 21 Insurance Company Ltd. Vs. Pranay Sethi & Ors.", passed in SLP(Civil) No. 25590/14 decided on 31.10.17 delivered by Constitutional Bench of Hon'ble Apex Court, accepted the submissions of the ld counsel for the insurer that nonpecuniary heads of damages would have to be restricted to the total of Rs. 70,000/ only, in view of the dispensation in Pranay Sethi (Supra). The Hon'ble Delhi High Court in the said case further held that the Constitution Bench decision did not recognize any other nonpecuniary head of damages (except loss of estate, loss of consortium and funeral expenses).
In view of above said discussion, the petitioners would not be entitled to any amount under the said head of loss of love and affection.
13. Petitioners/claimants are accordingly entitled to compensation computed as under:
Loss of financial dependency Rs. 30,49,254/ Loss of Estate Rs. 15,000/ Loss of Consortium Rs. 40,000/ Funeral Expenses Rs. 15,000/ ________________ Total Rs. 31,19,254/ ________________ Rounded off to Rs. 31,19,300/ (Rupees Thirty One Lakhs Nineteen Thousand Three Hundred Only) The claimants/petitioners are also entitled to interest @ 9% p.a. for the date of filing of petition i.e. w.e.f 16.01.2014 till realisation of the compensation amount. The said interest @ 9% p.a. was awarded on the award amount by the Hon'ble Apex Court in case Municipal Corporation of Delhi vs. Association of Victims of Uphaar Tragedy, 2012 ACJ 48 (SC) .
The amount of interim award, if any, shall however be deducted from the above amount, if the same has already been paid to the petitioners.
14. Liability Bharti Axa General Insurance company/R3 has examined Ms. Shreshta Kalonia, Executive Legal, Bharti Axa GIC as R3W1. She has LRs of Kishan vs Shabhu Tanti Page 14 of 21 LRs of Kishan vs Sambhu Tanti Page 15 of 21 tendered her evidence by way of affidavit as Ex. R3W1/A. She has proved the copy of insurance policy as Ex. R3W1/1, copy of notice u/o XII rule 8 CPC as Ex. R3W1/2 and postal receipt as Ex. R3W1/3. She has also deposed that driver/R1 did not hold driving licence and she has proved the investigation report of IO as filed in the DAR as Ex. R3W1/4 wherein it is mentioned that DL No. WB0120020586592 has not been issued by Licensing Authority Kolkata and no record was found in that regard.
The said witness was cross examined by ld counsel for petitioners wherein it was admitted that insurance covers the date of accident. She was not cross examined on behalf of R1 and R2.
In view of testimony of R3W1 and material on record, it is ample clear that R1 was having only a fake licence as the said licence was never issued by the said Kolkata Authority by which it is purported to be issued and as such R1 was not legally authorised to drive the offending vehicle at the relevant time.
15. It is not out of place to discuss that in the case of Prem Kumari & Ors. Vs Prahlad Devi & Ors. II (2008) 477 (SC), the Hon'ble Apex Court has observed that even if the license of driver is fake, still the insurer would continue to remain liable and the insurer after paying the compensation is entitled to recover the said amount from driver and owner of offending vehicle as per procedure established by law.
16. In the present case, though, it is shown on record that R1 was not having valid driving licence to drive the offending vehicle at the relevant time, yet in view of above said judgment in the case of Prem Kumari (Supra), the Bharti Axa General Insurance co (R3) is under statutory obligation to pay compensation to the petitioner and it can very well recover the same from R1 and R2 as per rules as procedure established by law.
17. 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 Rajesh Tyagi Vs. Jaibir Singh and Ors., R3/ Bharti Axa General Insurance co is directed to deposit the awarded amount of Rs. 31,19,300/ LRs of Kishan vs Shabhu Tanti Page 15 of 21 LRs of Kishan vs Sambhu Tanti Page 16 of 21 within 30 days from today within the jurisdiction of this Tribunal i.e. State Bank of India, Rohini Courts Branch, Delhi alongwith interest at the rate of 9 % per annum from the date of filing of the petition till notice of deposition of the awarded amount to be given by R3/Insurance co to the petitioners and their advocates and to show or deposit the receipt of the acknowledgement with the Nazir as per rules. R3/insurance co further directed to deposit the awarded amount in the above said bank by means of cheque drawn in the name of above said bank alongwith 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 petitioners in terms of clause 27 MCTAP was recorded. I have heard the petitioners and ld. counsel for the petitioners/claimants regarding financial needs of the injured/petitioner and in view of the judgment in the case of General Manager, Kerala State Road Transport Corporation Vs. Susamma Thomas & 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: Keeping in view the facts and circumstances of the case, on realization, an amount of Rs. 7,00,000/ each be given to petitioners no. 2 to 4 namely Manisha Sharma, Ms. Sapna Sharma and Sh. Harsh Sharma who are daughters and son of deceased respectively and from the same an amount of Rs. 1,00,000/ each be released to them in their respective savings bank account i.e. savings bank account no. 604202010023964 with (in the name of Ms. Manisha Sharma), savings bank account no. 604202010023963 with (in the name of Ms. Sapna Sharma) and savings bank a/c no. 604202010023966 with Union Bank of India, Sector22, Rohini Delhi (in the name of Sh. Harsh Sharma) as per rules i.e. the branches near their place of LRs of Kishan vs Shabhu Tanti Page 16 of 21 LRs of Kishan vs Sambhu Tanti Page 17 of 21 residence (as mentioned in statement recorded under clause 27 MCTAP) and their respective remaining amount be kept in their respective names in 72 FDRs of equal amount for a period of one month to 72 months with cumulative interest without the facility of advance, loan and premature withdrawal without the prior permission of the Tribunal.
It is pertinent to mention here that the parents of deceased/petitioner no. 5 & 6 have relinquished their share in favour of Ms. Manisha Sharma/petitioner no.2 and Ms. Sapna Sharma/petitioner no. 3 vide statement recorded on 23.02.2018, hence no amount is granted to parents of deceased namely Smt. Chanderkala and Sh. Banwari Lal.
Further, remaining amount be given to Smt. Asha Sharma (who is wife of deceased ) out of which an amount of Rs. 2,00,000/ be released to her in her savings bank a/c no.604202010023965 with Union Bank of India, Sector22, Rohini Delhi i.e. the branch near her place of residence (as mentioned in statement recorded under clause 27 MCTAP) and remaining amount be kept in 120 FDRs of equal amount for a period of one month to 120 months with cumulative interest without the facility of advance, loan and premature withdrawal without the prior permission of the Tribunal.
It shall be subject to the following further directions:
(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).
(c) The maturity amount of the FDR(s) shall be credited to the saving bank account of the claimant(s) in a nationalised bank near the place of his residence i.e. above said a/c.
LRs of Kishan vs Shabhu Tanti Page 17 of 21 LRs of Kishan vs Sambhu Tanti Page 18 of 21(e) No loan, advance or withdrawal or premature discharge be allowed on the fixed deposits without permission of the court.
(f) The concerned Bank shall not to issue any cheque book and/or debit card to claimant(s). However, in case the debit card and/or cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount.
(g) The bank shall make an endorsement on the passbook of the claimant(s) to the effect, that no cheque book and/or debit card have been issued and shall not be issued without the permission of the court and claimant(s) shall produce the passbook with the necessary endorsement before the court on the next date fixed for compliance.
19. Relief As discussed above, R3/Insurance co is directed to deposit the award amount of Rs. 31,19,300/ with interest @ 9% per annum from the date of filing of petition i.e. 16.01.2014 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 advocates failing which the R3 shall be liable to pay interest @ 12% per annum from the period of delay beyond 30 days. R3 is also directed to place on record the proof of the award amount, proof of delivery of notice in respect of deposit of the 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. A copy of this judgment/award be sent to respondent no. 3 for compliance within the granted time.
Nazir is directed to place a report on record in the event of non receipt/deposit of the compensation amount within the granted time.
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 LRs of Kishan vs Shabhu Tanti Page 18 of 21 LRs of Kishan vs Sambhu Tanti Page 19 of 21 in FAO 842/2003 Rajesh Tyagi Vs. Jaibir Singh & 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, the statement of ld counsel for all petitioners was also recorded wherein he had stated that the petitioners were entitled to exemption from deduction of TDS and that they would submit form 15G to the 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 (AMIT BANSAL)
on 26th April 2018 PO MACT N/W
Rohini Courts, Delhi.
LRs of Kishan vs Shabhu Tanti Page 19 of 21
LRs of Kishan vs Sambhu Tanti Page 20 of 21
FORM - IV A
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN DEATH CASES TO BE INCORPORATED IN THE AWARD
1. Date of accident : 17.09.2013
2. Name of deceased: Kishan
3. Age of the deceased: 46 years
4. Occupation of the deceased: Self employed
5. Income of the deceased: 26,062/ per month
6. Name, age and relationship of legal representatives of deceased:
S.No. Name Age Relation
(i) Smt. Asha Sharma 40 years wife
(ii) Ms. Manish Sharma 25 years daughter
(iii) Ms. Sapna Sharma 22 years daughter
(iv) Sh. Harsh Sharma 17 years son
(v) Smt. Chanderkala 80 years mother
(vi) Sh. Banwari Lal 90 years father
Computation of Compensation
S.No. Heads Awarded by the Claims
Tribunal
7. Income of the deceased (A) Rs. 20,850/ .
8. AddFuture Prospects (B) 25%= Rs. 26,062/
9. LessPersonal expenses of the 1/4th
deceased (C )
10. Monthly loss of dependency 19,546/
{ (A+B) - C =D}
11. Annual loss of dependency (Dx12) 2,34,552/
12. Multiplier (E) 13
13. Total loss of dependency (Dx12xE 30,49,176/ = F)
14. Medical Expenses (G)
15. Compensation for loss of love and Nil affection (H) LRs of Kishan vs Shabhu Tanti Page 20 of 21 LRs of Kishan vs Sambhu Tanti Page 21 of 21
16. Compensation for loss of Rs. 40,000/ 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. 31,19,300/ (F+G+H+I+J+K =L)
20. RATE OF INTEREST AWARDED 9% 21 Interest amount up to the date of Rs. 11,93,130/ award (M)
22. Total amount including interest Rs. 43,12,430/ (L+M)
23. Award amount released Rs. 5,00,000/ to the petitioners.
24. Award amount kept in FDRs Rs. 38,12,430/
25. Mode of disbursement of the award As per award and in terms amount to the claimant (s) (Clause of clause 29 of MCTAP.
29)
26. Next date for compliance of the 05.06.2018.
award. (Clause 31) (AMIT BANSAL) PO MACT N/W Rohini Courts, Delhi.
26.04.2018 LRs of Kishan vs Shabhu Tanti Page 21 of 21