Delhi District Court
Babita Devi vs Arpit Bhargav on 3 June, 2024
IN THE COURT OF MS. MAYURI SINGH
P.O : MOTOR ACCIDENT CLAIMS TRIBUNAL
EAST DISTRICT : KARKARDOOMA COURTS: DELHI
In the matters of :
CNR No.: DLET01-004945-2019
MACP No. 589/19
Babita Devi & Ors. Vs. Arpit Bhargav & Ors.
In the matter of :
1. Babita Devi
W/o Late Pappu Yadav,
2. Vidyapati Yadav
S/o Late Pappu Yadav
3. Nayan Kumar
S/o Late Pappu Yadav
4. Chandra Kala Devi @ Indra Kala Devi
W/o Malvan Yadav @ Malvar Yadav
5. Malvar Yadav @ Malvan Yadav
S/o Sh. Avadh Yadav
All R/o H. No. 234, Chitra Vihar,
Delhi-110092 ......... Petitioners
Permanent Address : Village & PO Bhavani Pur,
District Darbhanga, Bihar
Versus
1. X (Driver-minor)
S/o Sh. SB
Through his father.
2. Mrs. D.B.
W/o Sh. O.P.B (name and addresses of R-1 and R-2 are withheld as R-1
is minor and R-2 is a relative of R-1)
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3. The New India Assurance Co. Ltd (insurer)
DRO-II, Core-1, 10th floor, Scope Minar,
Laxmi Nagar, Delhi-110092 ........Respondents
AND
MACP No. 590/19
CNR No. DLET01-004935-2019
1. Rita Devi
W/o late Vijay Kumar
2. Kishan Kumar
S/o late Vijay Kumar
3. Ratan
S/o late Vijay Kumar
4. Ishu
D/o late Vijay Kumar
5. Chander Kali
W/o Sh. Rama Shankar
6. Rama Shankar
S/o Sh. Brij Mohan
The petitioners No. 2 to 4 are minors through mother
next friend and natural guardian.
All R/o H. No. 3/27, Gali No. 3-A, Saket Block,
Mandawali, Delhi-110092
Permanent R/o Village Tela, Lala Ka pura,
Handia, Tela Khas, Allahabad ......Petitioners
Versus
1. X (Driver-minor)
2. Mrs. D.B.
3. The New India Assurance Co. Ltd (insurer)
(Details as above) ..................Respondents
Date of Institution : 01.06.2019
Date of reserve for order : Not reserved
Date of Judgment : 03.06.2024
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AWARD
1. By this common award, both the claim petitions, based on
claim petitions bearing No. 589/19 and 590/19 and arising out of same
accident, filed under section 166/140 of the Motor Vehicles Act, 1988,
would be decided. DAR was filed in connection with petitioners in
MACP No. 589/2019 and 590/19 on 18.07.2019 and the same was
merged with these claim petitions, which were filed on 01.06.2019, by
order of the Tribunal dated 04.10.2019.
2. Important facts of the case are as under: On 22.02.2019 at
about 07:00 a.m. on Vikas Marg, near Mod Geeta Colony Pushta road,
Laxmi Nagar, Delhi, the deceased Pappu Yadav alongwith Sh. Vijay
Kumar (another deceased in connected MACP No.590/19) was
travelling on bicycle after finishing their duty from Delhi Jal Board, near
Delhi Secretariat, Delhi on Vikas Marg going from ITO towards Laxmi
Nagar, Delhi. The bicycle was being plied by deceased Pappu Yadav
and Vijay Kumar was sitting on the carrier of the bicycle. When the
bicycle of the deceased reached at the Mod of Geeta Colony Pushta
road, suddenly a Swift Dzire Car bearing No. DL-2C-AK-5207 driven
by Respondent No. 1 owned by the Respondent No. 2 and insured with
Respondent No. 3 came in a rash, reckless and negligent manner with a
high and shooting speed from behind and hit the bicycle of the deceased
with a great force, without giving any horn or signal. As a forceful hit,
the bicycle fell down on the road alongwith its riders and the Vijay
Kumar and Pappu Yadav sustained dangerous grievous injuries and
bicycle got fully damaged. Sh. Vijay Kumar and Sh. Pappu Yadav died
in the accident. After the accident, the driver of the car tried to flee away
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from the spot with the car, but people gathered there caught him. It is
further stated that R1 did not keep proper look out and did not observe
due care and caution and facts of the case and scene of accident speak
volumes about negligence and speed of the offending car at the relevant
time and doctorine of Res Ipsa Loquitur is applicable. In connection with
this accident, an e-FIR No. 37/19, u/S 279/304-A r/w 4 IPC and Section
4 /181 M.V. Act was also registered at PS- Shakarpur on the complaint
of informant Pappu Yadav. Vijay Kumar died during his treatment in Dr.
Walia Nursing Home on 22.02.2019 and informant/injured Pappu Yadav
died during his treatment on 08.09.2019.
3. In response, all the respondents appeared and replies/ written
statements were filed by R-2 and R-3.
3.1 The respondent No. 1/Driver (minor) did not file his reply
and opportunity given for the same was closed on 04.10.2019 in both of
the claim petitions.
3.2 R2/Owner (names of R1 & R2 are concealed as R1 is a minor
and R2 is aunt of R1). R2 has filed reply and stated that there was a
ceremony at R2's home and all the relatives had come to stay at her
home. R1 is nephew of R2. R1 in the wee morning of 22 nd , took out the
car of R2 without her permission and this fact is clear from DAR as well
as statement of R1 made before the police. Deceased/injured were also
negligent to ply on the bicycle without proper head gear on a busy road
and bicycle is meant for single riding and there was negligence on part
of the deceased as both were riding on the same bicycle. Deceased were
working as security guard with a private firm in New Delhi and were
unskilled labour and would not get Rs.20,000/- per month. No medical
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bills are annexed with the claim petitions or DARs. There is no vicarious
liability of R2 as she did not authorize R1 to driver her vehicle. There is
no receipt filed of any expenses for last rites of the deceased victims and
no documents in support of their skill and age proof is filed (In both of
the claim petitions, averments in written statement of R2 are the same).
3.3 R3/New India Insurance Company Ltd. has filed written
statement and stated that the entire negligence was of the deceased
pillion rider (who was sitting on carrier of the bicycle) and the person
plying the bicycle. R1 & R2 have invoked for offence under Section
4/181 M.V. Act and 5/181 M.V. Act as R1 did not have valid driving
licence and was a minor and hence, R3 is not liable to pay
compensation. It is further stated that the facts regarding occurrence and
manner of occurrence appear to be concocted.
4. On the basis of pleadings, following issues were framed on
19.03.2020 :-
In MACP No. 589/19 :
i). Whether Pappu Yadav died in a motor vehicular accident which
happened on 22.02.2019 at about 07:00 p.m. near Geeta Colony
mor, Pushta Road, Vikas Marg, Laxmi Nagar, Delhi, within
jurisdiction of PS Shakarpur due to rash and negligent driving of
car bearing registration No. DL-2CAK-5207( car) driven by the
respondent No. 1/Arpit Bhargav?(OPP)
ii). Whether the respondent No. 1 was holding valid and effective
driving licence at the time of accident? If not, its effect? (OPR 1 &
2)
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iii). Whether the petitioners are entitled to compensation on account
of said death and if yes, to what extent and from whom?(OPP)
iv). Whether the petitioners are entitled to interest on the award
amount, if so, at what rate of interest and for which period? (OPP)
In MACP No. 590/19 :
i) Whether Vijay Kumar died in a motor vehicular accident which
happened on 22.02.2019 at about 07:00 p.m. near Geeta Colony
mor, Pushta Road, Vikas Marg, Laxmi Nagar, Delhi, within
jurisdiction of PS Shakarpur due to rash and negligent driving of
car bearing registration No. DL-2CAK-5207( car) driven by the
respondent No. 1/Arpit Bhargav?(OPP)
ii) Whether the respondent No. 1 was holding valid and effective
driving licence at the time of accident? If not, its effect? (OPR 1 &
2)
iii) Whether the petitioners are entitled to interest on the award
amount, if so, at what rate of interest and for which period?
(OPP)
(iv) Whether the petitioners are entitled to compensation on account
of said death and if yes, to what extent and from whom?
(OPP)
(The issue on account of compensation was inadvertently left
out to be framed at the time of framing of issues and hence
the same was framed as an additional issue on 20.03.2024.
Evidence on this issue is already led on record).
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5. In order to establish their claim, petitioners in MACP
No.589/19 have examined two witnesses.
5(i) PW1 is Babita Devi(Petitioner No.1), who is wife of the
deceased injured Pappu Yadav. She tendered her evidence by way of
affidavit Ex.PW1/A and deposed regarding the date, time and manner of
accident and also deposed that her husband was working with M/s.
Gaurav Enterprises, Delhi and drawing salary of Rs.20,000/- per month
and left behind her, two minor sons and parents as the legal
representatives and deceased used to spend his entire income on these
petitioners for their maintenance and upkeep. She relied upon the
following document:
a. Ex.PW1/1 are the photocopies of Aadhar cards of petitioner no. 1 to 3.
b. Ex.PW1/2 is the photocopy of Voter ID card of deceased Pappu
Yadav.
c. Ex. PW1/3 is the salary certificate of the deceased.
d. EX. PW1/4 is DAR.
e. Photocopies of aadhar card of petitioner no. 4 & 5 and the deceased
are Mark A to Mark C.
5(ii) PW2 Sh. Ghanshyam has tendered his evidence by way of
affidavit Ex.PW2/A and relied on copy of his aadhar card Ex.PW2/B.
He deposed as an eye-witness and testified regarding rash and negligent
manner of driving of the offending vehicle by R1, resulting in the
accident. He deposed that injured Vijay Kumar had died on the spot
while the other injured Pappu yadav died during the period of treatment.
6. In order to establish their claim, petitioners in MACP No.
590/19 have examined two witnesses.
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7(i) PW1 is Rita Devi(Petitioner No.1), who is wife of the
deceased injured Vijay Kumar @ Vijay Kumar Verma. She tendered her
evidence by way of affidavit Ex.PW1/A and deposed regarding the date,
time and manner of accident and also deposed that her husband was
working with M/s. Gaurav Enterprises Delhi and drawing salary of
Rs.20,000/- per month and left behind her, two minor sons, one minor
daughter and parents as the legal representatives and deceased used to
spend his entire income on these petitioners for their maintenance and
upkeep. She relied upon the following document:
a. Ex.PW1/1 are the photocopies of Aadhar cards of all petitioners
except petitioner no.6.
b. Ex.PW1/2 is the photocopy of aadhar card of deceased Vijay Kumar
@ Vijay Kumar Verma.
c. Ex. PW1/3 is the school certificate issued by Headmaster, Primary
School, Bhelsi, Handiya, Prayagraj, U.P. regarding date of birth of the
deceased.
d. EX. PW1/4 is salary certificate of deceased.
e.Ex.PW1/5 is DAR.
f. Photocopy of Aadhar Card of petitioner no. 6 is Mark A.
7(ii) PW2 Sh. Ghanshyam has tendered his evidence by way of
affidavit Ex.PW2/A and relied on copy of his aadhar card Ex.PW2/B.
He deposed as an eye-witness and testified regarding rash and negligent
manner of driving of the offending vehicle by R1, resulting in the
accident. He deposed that injured Vijay Kumar had died on the spot
while the other injured Pappu yadav died during the period of treatment.
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8. The respondent nos. 1 & 2 did not examine any witness in
defence. R3/Insurer chose to lead evidence in defence.
8.1 R3W1, Pranav Mahay, Assistant Manager, The New India
Assurance Company Limited deposed that the insurance policy issued in
the name of R2 (registered owner of the offending vehicle) i.e. document
Ex.R3W1/1 was valid from 08.07.2018 to 07.07.2019. Notice under
Order XXII Rule 8 CPC Ex.R3W1/2 was sent to R2 to produce RC and
insurance policy and copy of postal receipt regarding the same is
Ex.R3W1/3. No reply was sent to the said notice by R2. R3W1 also
relied on DAR Ex.PW1/4 and deposed that R1, a minor, was driving the
offending vehicle at the time of accident in violation of the terms and
conditions of the insurance policy as well as the provisions of Motor
Vehicles Act and charge-sheet was filed also for offence under Section
4/181 M.V. Act. Insurance Company/R3 is not liable to pay any
compensation as there is violation of terms and conditions of the
insurance policy and R2 permitted a minor to drive the offending vehicle
in violation of the terms and conditions of the insurance policy.
9. I have heard Sh. GS Bisht, Ld. Counsel for petitioners; Sh.
Rajnesh Kumar, Ld. Counsel for respondent no.3/ The New India Ass.
Co. Ltd. Other respondents did not make final submissions. Record of
the case has also been perused.
ISSUE No.1 :
10. This issue being common in both of the cases, is being dealt
with in succeeding paragraphs.
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11. In an action founded on the principle of fault liability, the
proof of rash and negligent driving of the offending vehicle is sine qua
non. However, the standard of proof is not as strict as applied in criminal
cases and evidence is tested on the touchstone of principle of
preponderance of probabilities.
12. The involvement of aforesaid car in the accident is not in
dispute. Admittedly, the FIR was registered without any delay on the
date of accident itself and offending vehicle was seized from the spot
immediately after the accident. In the site plan, which is attached to the
DAR, IO has mentioned Mark B at the place where the offending car
was stopped by public persons after the accident. The seizure memo of
the offending Swift Dzire Car shows that the vehicle was seized in an
accidental condition on 22.02.2019 i.e. date of accident itself. The
eye-witness/injured Ghanshyam (PW2) deposed that on the day of
accident i.e. 22.02.2019 at about 07:00 a.m., he was plying his bicycle
and going towards his home after finishing his duty. Deceased Pappu
Yadav and Sh. Vijay Kumar Verma were also going ahead of him on
one bicycle after finishing their duty from Delhi Jal Board, near Delhi
Secretariat, Delhi on Vikas Marg and going from ITO to Laxmi Nagar,
Delhi. Bicycle was being plied by Pappu Yadav and Sh. Vijay Kumar
Verma was sitting on the carrier of the bicycle. When bicycle of the
deceased reached at Geeta Colony, Pushpa Road mod, suddenly a Swift
Dzire Car bearing No.DL-2CAK-5207 being driven by R1 came from
behind of PW2 and overtook him in a rash, reckless and negligent
manner at a high and shooting speed and hit the bicycle of the deceased
with a great force without giving any horn or signal. Due to this, the
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bicycle fell down on the road with the rider and got fully damaged.
Riders sustained dangerous and grievous injuries and while Vijay Kumar
died on spot, Pappu Yadav died during the course of treatment. During
cross-examination, testimony of this witness could not be shattered in
both of the claim petitions. Insurance company has argued that there is
negligence on the part of the both of the deceased as cycle is meant for
one person whereas deceased Vijay was sitting on the carrier of the cycle
and thus both of the deceased were negligent. I find no merit in such a
plea and there cannot even be a presumption of contributory negligence
in the facts and circumstances of this case merely because two person
were seated on a single bicycle. The bicycle was hit from behind and
PW2 has denied that the accident was caused due to negligence of both
of the deceased. The driver of car never stepped into witness box to
suggest that he was not negligent or that rider of the bicycle was not
driving properly.
13. After investigation, the police filed the charge-sheet against
respondent no. 1/Master X, the driver-cum-owner of the offending truck.
Filing of charge-sheet against the driver of offending vehicle prima-facie
points to his culpability. ( New India Assurance Company Ltd vs Smt.
Washeema Bano (2022) SCC OnLine All 403 and Mangla Ram vs
Oriental Insurance Company Ltd (2018) 5SCC 656).
14. In New India Assurance Company Ltd vs Pazhaniammal
(2011) (2) KLT 648, the Hon'ble High Court of Kerala has held that as a
general rule, it can be accepted that production of charge-sheet is prima-
facie sufficient evidence of negligence for the purpose of claim under
section 166 MV Act. If any party does not accept such charge-sheet, the
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burden must be on such party to adduce evidence. If the Tribunal feels
that charge-sheet is collusive, it can record that charge-sheet cannot be
accepted and call upon the parties at any stage to adduce oral evidence
of accident and alleged negligence. In such cases, issue of negligence
must be decided on other evidence ignoring the charge-sheet.
15. Respondent no.2 is the owner of the offending vehicle and
she did not lead any evidence to prove anything contrary to the claim of
the petitioner. In the case of Cholamandalam MS General Insurance
Company Ltd vs Smt. Kamlesh and Others2009 (3) AD Delhi 310 it was
held that an adverse inference can be drawn when the driver of the
offending vehicle does not enter into the witness box.
16. Further, the postmortem report of deceased Vijay Kumar,
filed along with the DAR reflects that he died because of "Shock as a
result of antemortem injury to head and abdomen of deceased produced
by blunt force impact". Further, postmortem of deceased Pappu Yadav,
filed alongwith DAR reflects that cause of death is cerebral damage and
its sequelae, consequent upon blunt force trauma to head and are
possible in road traffic accident.
17. In view of this Tribunal, aforesaid materials is found
sufficient to establish that the accident had occurred due to rash and
negligent driving of offending vehicle i.e. Swift Dzire car by respondent
no.1, resulting into death of Pappu Yadav and Vijay Kumar Verma.
Therefore, issue no.1 is decided in favour of the petitioners.
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ISSUE NO. 2 :
18. The onus to prove this issue was on the respondent No.1 and
2. Though no specific evidence was led on behalf of the respondent
No.3 on this issue, however, it is clear from the PIR filed by the IO
(which is attached with the case file) that R-1 was a minor on the date of
accident i.e. 22.02.2019, his date of birth being 04.07.2001. R-1 was
about 17 years old on the date of accident and was not qualified to hold a
driving licence for the offending vehicle (car). In the PIR, it is
mentioned that as the driver / R-1 was found to be a minor, section 4/181
M.V. Act was added in the case. R-1 & R-2 have not disputed that R-1
was a minor and not qualified to have a driving licence. Thus, it is
concluded the R-1 was not holding a valid and effective driving licence
at the time of accident and as an effect of it, he was not competent to
drive and there was a breach of terms and conditions of the insurance
policy.
ISSUE REGARDING COMPENSATION (Issue No.3 in case MACP
No. 589/19 and Issue No. 4 in MACP No. 590/19)
19. Section 168 of the Act enjoins the Claims Tribunal to hold an
inquiry into the claim to make an award determining the amount of
compensation which appears to be just and reasonable. It has to be borne
in mind that the compensation is not expected to be a windfall or a
bonanza nor it should be pittance.
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(MACP No. 589/19 : In re- Babita Devi & Ors.)
ASSESSMENT OF INCOME OF THE DECEASED:
20. PW1 (wife of deceased) in her evidence, has testified that her
deceased husband was working with M/s Gaurav Enterprises, Delhi and
was drawing a salary of Rs.20,000/- per month. In support of her claim,
she also proved the salary certificate of deceased Ex.PW1/3. In the
DAR, address of deceased has been mentioned as that of Delhi and it is
specified that he was working in Delhi Jal Board. However, IO has
himself attached the payslip of deceased Pappu Yadav showing that he
was working with Gaurav Enterprises. In the FIR itself, it is mentioned
by the informant / since deceased Pappu Yadav that both he and the
other injured deceased Vijay Kumar were working as security guard and
on the date of accident, they were returning after night duty from Delhi
Jal Board near Secretariat. Ld. Counsel for petitioners submitted during
oral arguments that both of the deceased were employed with Gaurav
Enterprises but giving their services in Delhi Jal Board. The salary slip
of the deceased which is part of DAR is duly verified and attested by
SHO concerned. In the MLC of injured Pappu, his address is mentioned
as that of Delhi. In the election I.D. card of deceased Pappu Yadav, his
address is mentioned as that of Delhi, showing that he was resident of
and voter in Delhi. The said salary slip for the month of January 2019 is
seemed to have been issued by Gauarv Enterprises in favour of deceased
Pappu Yadav. No serious dispute has been raised on behalf of
respondents with respect to the said salary certificate Ex. PW1/3. As per
the said salary slip, the gross salary was being drawn by the deceased on
the date of accident, as reflected in it, is Rs.14,150/-. Therefore, for the
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purpose of compensation, the monthly income of the husband of the
petitioner No.1 is to be considered as Rs.14,150/-.
APPLICATION OF MULTIPLIER:
21. As per the aadhar card of deceased Pappu Yadav mark C, his
year of birth is 1985. As per his, election I.D. Card Ex. PW1/2 as issued
on 05.10.2004, his age as on 01.01.2004 was 20 years and hence he was
35 years old on the date of accident. No dispute has been raised on
behalf of the respondents to this document. Thus, age of the deceased is
being considered as per election I.D card. The date of accident is
22.02.2019. Hence, the age of deceased was 35 years at the time of
accident. Therefore, the multiplier of 16 which is applicable to age group
between 31-35 years shall be applicable in this case. The deceased was
survived by his wife, two minor children and parents and all of them
were dependents on the deceased on the date of accident. The judgment
titled as Sarla Verma v. DTC (2009) 6 SCC 121 is relevant to consider
the multiplier. In Para 21 of the judgment, the guidelines for the
multiplier were laid down in accordance with age are as under:-
MULTIPLIER AGE GROUP OF
DECEASED
M-18 Age group between 15 to 20 &
21 to 25 years)
M-17 Age group between 26 to 30
yrs
M-16 Age group between 31 to 35
yrs
M-15 Age group between 36 to 40
yrs
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M-14 Age group between 41 to 45
yrs
M-13 Age group between 46 to 50
yrs
M-11 Age group between 51 to 55
yrs
M-9 Age group between 56 to 60
yrs
M-7 Age group between 61 to 65
yrs
M-5 Age group between 66 and
above
22. In view of the above, multiplier of 16 shall be applicable in the
present case.
Future Prospects:
23. This issue was considered by the Hon'ble Supreme Court in
the case of Pranay Sethi & Others (Supra). Relevant parts of the
judgment are reproduced here as under:
"(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
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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."
24. The deceased can be considered as self-employed. In view of
the above said judgment, the deceased, who was 35 years of age, an
addition of income of deceased to the extent of 40% has to be considered
in view of decision of a Constitution Bench of the Supreme Court in the
case, National Insurance Company Ltd. Vs. Pranay Sethi and Ors .
(Supra) for the benefit of future prospects.
Deduction towards Personal Living Expenses:
25. After choosing the age, multiplier and income of the deceased,
necessary deductions have to be made out of the income of the deceased
towards his personal expenses. Hon'ble Supreme Court in case titled as
Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65, in
para 30, laid down the necessary deductions towards personal living and
expenses of deceased as under :
Deductions out of earning of the Number of
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deceased dependents
Where dependent is 1 Half
Where the number of dependent 1/3rd
family members is 2 to 3
Where the number of dependent 1/4th
family members is 4 to 6
Where the number of dependent 1/5th
family members exceeds 6 (six)
26. All the five petitioners are considered as dependents upon the
deceased. Accordingly, one fourth of the income of the deceased is to
be deducted towards his personal living expenses.
27. Thus, the loss of dependency is computed as Rs 28,52,640/-
(14,150/-x 3/4 x 140/100 x 12x 16).
NON-PECUNIARY DAMAGES:
28. In case of Pranay Sethi (supra), a compensation of Rs.40,000/-,
15,000/- and Rs.15,000/- respectively has been fixed on account of loss
of consortium, loss of estate and funeral expenses and further, it is
required to be enhanced @ 10% in every three years. Therefore, a
compensation of Rs.48,000/-, 18,000/- and Rs.18,000/- respectively on
account of loss of consortium, loss of estate and funeral expenses is
required to be granted. Further, in view of recent decision of Hon'ble
Supreme Court in the case titled as United India Insurance Co. Ltd. Vs.
Satinder Kaur @ Satwinder Kaur & Ors., Civil Appeal no. 2705 of 2020,
decided on 30.06.2020, loss of consortium has to be fixed for each of the
MACP No.589/19; Babita Devi & Ors Vs. Arpit Bhargava & Ors.
MACP No.590/19; Rita Devi & Ors Vs. Arpit Bhargava & Ors. Page 18 of 31
LRs. In this case, there are five legal heirs of the deceased. Thus,
claimants are entitled to a sum of Rs.2,76,000/-
(48,000x5+18,000+18,000) under this head.
29. Considering the aforementioned factors, the total
compensation is calculated as under:
S. No. Head Amount
Awarded
1. Monthly income of deceased (A) Rs.14,150/-
2. Add future prospect (B) @ 40% of 14,150
= 5660
3. Less 1/3rd towards personal and living Rs 4952.5 =
expenses of the deceased (C) 1/4th of
19,810
( 14,150+5660
).
4. Monthly loss of dependency (A+B)- Rs.14857.5/-
C=D
5. Annual loss of dependency (Dx12) Rs. 1,78,290/-
6. Multiplier (E) 16
7. Total loss of dependency (Dx12xE=F) Rs.28,52,640/-
8. Medical expenses (G) --
9. Compensation for loss of consortium Rs.2,40,000/-
(I) (48,000x5)
10. Compensation for loss of estate (J) Rs.18,000/-
11. Compensation for funeral expenses Rs.18,000/-
(K)
12. Total compensation Rs.31,28,640/-
MACP No.589/19; Babita Devi & Ors Vs. Arpit Bhargava & Ors.
MACP No.590/19; Rita Devi & Ors Vs. Arpit Bhargava & Ors. Page 19 of 31
rounded off to
Rs.31,29,000/-
30. Thus, petitioners i.e. wife, children and parents of deceased
in the instant case, shall be entitled to a total compensation of
Rs.31,29,000/-only.
(MACP No. 590/19 : In re- Rita Devi & Ors.)
ASSESSMENT OF INCOME OF THE DECEASED:
31. PW1 (wife of deceased) in her evidence, has testified that her
deceased husband was working with M/s Gaurav Enterprises, Delhi and
was drawing a salary of Rs.20,000/- per month. In support of her claim,
she also proved the salary certificate of deceased Ex.PW1/4. The said
salary slip for the month of January 2019 seems to have been issued by
Gauarv Enterprises in favour of deceased Vijay Kumar Verma. No
serious dispute has been raised on behalf of respondents with respect to
the said salary certificate Ex. PW1/4. In the DAR, address of victim
Vijay Kumar Verma is mentioned as that of Allahabad, U.P, but in
MLC, his local address is stated to be that of Mandawali, Delhi. In the
FIR itself, it is stated that both of the deceased injured were working as
security guard and on the date of accident, they were returning after
night duty from Delhi Jal Board near Secretariat. Ld. Counsel for
petitioners submitted during oral arguments that both of the deceased
were employed with Gaurav Enterprises but giving their services in
Delhi Jal Board. The salary slip of the deceased which is part of DAR is
duly verified and attested by SHO concerned. As per the said salary slip,
MACP No.589/19; Babita Devi & Ors Vs. Arpit Bhargava & Ors.
MACP No.590/19; Rita Devi & Ors Vs. Arpit Bhargava & Ors. Page 20 of 31
the gross salary was being drawn by the deceased on the date of
accident, as reflected in it, is Rs.14,600/-. Therefore, for the purpose of
compensation, the monthly income of the husband of the petitioner No.1
is to be considered as Rs.14,600/-.
APPLICATION OF MULTIPLIER:
32. As per the aadhar card of deceased Vijay Kumar Ex. PW1/2,
his date of birth 12.08.1994. As per the school certificate of the deceased
Ex. PW1/3, the date of birth of the deceased is 10.05.1986. It can be
very well be assumed that aadhar card was prepared subsequent to the
school record, as school certificate reflects that deceased Vijay Kumar
studied in Handiya Prayagraj (earlier called as Allahabad), whereas in
the election I.D. card, photograph shows him as a grown up man. No
dispute has been raised on behalf of the respondents as well as petitioner
to the school certificate and date of birth of Vijay Kumar @ Vijay
Kumar Verma mentioned therein. Thus, age of the deceased is being
considered as per school certificate. The date of accident is 22.02.2019.
Hence, the age of deceased was 32 years and 8 months at the time of
accident. Therefore, the multiplier of 16 which is applicable to age group
between 31-35 years shall be applicable in this case. The deceased was
survived by his wife, three minor children and parents and all of them
were dependents on the deceased on the date of accident. The judgment
titled as Sarla Verma v. DTC (2009) 6 SCC 121 is relevant to consider
the multiplier. In Para 21 of the judgment, the guidelines for the
multiplier were laid down in accordance with age are as under:-
MULTIPLIER AGE GROUP OF
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MACP No.590/19; Rita Devi & Ors Vs. Arpit Bhargava & Ors. Page 21 of 31
DECEASED
M-18 Age group between 15 to 20 &
21 to 25 years)
M-17 Age group between 26 to 30
yrs
M-16 Age group between 31 to 35
yrs
M-15 Age group between 36 to 40
yrs
M-14 Age group between 41 to 45
yrs
M-13 Age group between 46 to 50
yrs
M-11 Age group between 51 to 55
yrs
M-9 Age group between 56 to 60
yrs
M-7 Age group between 61 to 65
yrs
M-5 Age group between 66 and
above
33. In view of the above, multiplier of 16 shall be applicable in the
present case.
MACP No.589/19; Babita Devi & Ors Vs. Arpit Bhargava & Ors.
MACP No.590/19; Rita Devi & Ors Vs. Arpit Bhargava & Ors. Page 22 of 31
Future Prospects:
34. This issue was considered by the Hon'ble Supreme Court in
the case of Pranay Sethi & Others (Supra). Relevant parts of the
judgment are reproduced here as under:
"(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
income means the income minus the tax
component."
35. The deceased can be considered as self-employed. In view of
the above said judgment, the deceased, who was 32 years and 8 months
of age, an addition of income of deceased to the extent of 40% has to be
considered in view of decision of a Constitution Bench of the Supreme
Court in the case, National Insurance Company Ltd. Vs. Pranay Sethi
and Ors. (Supra) for the benefit of future prospects.
MACP No.589/19; Babita Devi & Ors Vs. Arpit Bhargava & Ors.
MACP No.590/19; Rita Devi & Ors Vs. Arpit Bhargava & Ors. Page 23 of 31
Deduction towards Personal Living Expenses:
36. After choosing the age, multiplier and income of the deceased,
necessary deductions have to be made out of the income of the deceased
towards his personal expenses. Hon'ble Supreme Court in case titled as
Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65, in
para 30, laid down the necessary deductions towards personal living and
expenses of deceased as under :
Deductions out of earning of the Number of
deceased dependents
Where dependent is 1 Half
Where the number of dependent 1/3rd
family members is 2 to 3
Where the number of dependent 1/4th
family members is 4 to 6
Where the number of dependent 1/5th
family members exceeds 6 (six)
37. All the six petitioners are considered as dependents upon the
deceased. Accordingly, one fourth of the income of the deceased is to
be deducted towards his personal living expenses.
38. Thus, the loss of dependency is computed as Rs.29,43,360/-
(14,600/-x 3/4 x 140/100 x 12x 16).
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MACP No.590/19; Rita Devi & Ors Vs. Arpit Bhargava & Ors. Page 24 of 31
NON-PECUNIARY DAMAGES:
39. In case of Pranay Sethi (supra), a compensation of Rs.40,000/-,
15,000/- and Rs.15,000/- respectively has been fixed on account of loss
of consortium, loss of estate and funeral expenses and further, it is
required to be enhanced @ 10% in every three years. Therefore, a
compensation of Rs.48,000/-, 18,000/- and Rs.18,000/- respectively on
account of loss of consortium, loss of estate and funeral expenses is
required to be granted. Further, in view of recent decision of Hon'ble
Supreme Court in the case titled as United India Insurance Co. Ltd. Vs.
Satinder Kaur @ Satwinder Kaur & Ors., Civil Appeal no. 2705 of 2020,
decided on 30.06.2020, loss of consortium has to be fixed for each of the
LRs. In this case, there are six legal heirs of the deceased. Thus,
claimants are entitled to a sum of Rs.3,24,000/-
(48,000x6+18,000+18,000) under this head.
40. Considering the aforementioned factors, the total
compensation is calculated as under:
S. No. Head Amount
Awarded
1. Monthly income of deceased (A) Rs.14,600/-
2. Add future prospect (B) @ 40% of 14,600
= 5840
3. Less 1/3rd towards personal and living Rs. 5110 =
expenses of the deceased (C) 1/4th of
20,440
(14,600+5840)
.
MACP No.589/19; Babita Devi & Ors Vs. Arpit Bhargava & Ors.
MACP No.590/19; Rita Devi & Ors Vs. Arpit Bhargava & Ors. Page 25 of 314. Monthly loss of dependency (A+B)- Rs.15,330/-
C=D
5. Annual loss of dependency (Dx12) Rs. 1,83,960/-
6. Multiplier (E) 167. Total loss of dependency (Dx12xE=F) Rs.29,43,360/-
8. Medical expenses (G) --
9. Compensation for loss of consortium Rs.2,88,000/-
(I) (48,000x6)
10. Compensation for loss of estate (J) Rs.18,000/-
11. Compensation for funeral expenses Rs.18,000/-
(K)
12. Total compensation Rs.32,67,360/-
rounded off to Rs.32,67,000/-
Thus, petitioners i.e. wife, children and parents of deceased in the instant case, shall be entitled to a total compensation of Rs.32,67,000/-only.
LIABILITY :
41. Next question is which of the respondents is liable to pay compensation to the claimants? Since the offending vehicle was insured with R3/The New India Assurance Company at the time of accident thus, ordinarily, respondent No.3/The New India Assurance Company would have been liable to pay the compensation amount to the petitioners. However, the insurance company has taken the plea in its written statement that the respondent No.1 / driver was minor at the time of accident and thus, there is a breach of terms and conditions of the insurance policy and insurance company is not liable to pay the compensation. It was also stated that breach was committed by R-1 in MACP No.589/19; Babita Devi & Ors Vs. Arpit Bhargava & Ors.MACP No.590/19; Rita Devi & Ors Vs. Arpit Bhargava & Ors. Page 26 of 31
active participation of R-2 and R-2 had knowledge that R-1 was minor and still she allowed her vehicle to be driven by R-1 without driving licence and competence to drive, which resulted into the accident and loss of two lives. In support of its defence, insurance company has examined R3W1. R3W1 / Sh. Pranav Mahay, Asstt. Manager, the New India Assurance Company Ltd, has tendered his evidence before the Tribunal and stated that notice under order 12 Rule 8 CPC Ex. R3W1/2 was sent to the owner to produce RC and insurance policy but no reply to the same was received. As per DAR, minor / R-1 was driving the offending vehicle at the time of accident in violation of terms and conditions of insurance policy and charge-sheet u/s 4 /181 M.V. Act was also filed. Owner of the vehicle permitted a minor to drive the vehicle and thus violated the terms and conditions of the insurance policy as well as well provisions of Motor Vehicles Act and as terms and conditions of insurance policy was violated, insurance company is not liable to pay any compensation. The insurance policy Ex. R3W1/1 was also tendered in evidence by R3W1 during his testimony.
42. The document Ex. R3W1/1 mentions that "Persons or classes of persons entitled to drive-Any person including the insured provided that a person driving holds an effective driving licence at the time of accident and is not disqualified from holding or obtaining such a licence, Provided also that the person holding an effective Leaner's licence may also drive the vehicle and that such a person satisfies the requirement of Rule 3 of Central Motor Vehicle Rule, 1989". Respondent No.1 was minor on the date of accident and did not have a valid driving licence. This is not disputed by any of the respondents and further police MACP No.589/19; Babita Devi & Ors Vs. Arpit Bhargava & Ors.
MACP No.590/19; Rita Devi & Ors Vs. Arpit Bhargava & Ors. Page 27 of 31investigation report filed before the concerned Juvenile Justice Board clearly reflects so. There is no evidence led by respondent No.2 / registered owner to suggest that offending vehicle was taken from her possession by respondent No.1 without her knowledge and consent. Even though R-2 claimed in her written statement that the offending vehicle was taken out by R-1 for driving without her consent and knowledge, it is not proved on record by her. R-2 has claimed in the written statement that 'this fact' is clear from DAR and statement of R-1 made before the police but no evidence was led by the R-2 and such a bald assertion in written statement cannot be considered by the Tribunal and needless to say, nothing came up in the investigation of IO to show that she was not guilty for allowing a minor to drive the offending vehicle and rather PIR suggests otherwise and section 4/181 of M.V Act finds mention on the very first page of PIR. R-2 has not explained as to how could R-1 gain access to the car and its key without her knowledge. A minor driving a vehicle on road in itself poses a risk to others on road, as minor does not have requisite skill and maturity. It is too risky to hazard driving by a minor, who is without driving licence. In judgment bearing citation XXXX vs. IFFCO Tokio General Insurance Company Ltd .MAC APP no. 24/2023 and CM APPL. 1722-24 /23 decided on 13.01.2023, it was observed by Hon'ble Ms Justice, Rekha Palli that :
".. once the appellant, despite being aware that his son was a minor child, left the keys of his car at home and has failed to give any explanation as to why the keys of the car at home were left unattended when he himself was not there, the defence being taken by the appellant is apparently an afterthought in an attempt to somehow escape his MACP No.589/19; Babita Devi & Ors Vs. Arpit Bhargava & Ors.MACP No.590/19; Rita Devi & Ors Vs. Arpit Bhargava & Ors. Page 28 of 31
liablity. Even otherwise, the appellant did not lead any independent witness in support of his plea that the car was being driven by his minor son without his knowledge and permission... I may also know that as observed by the Ld. Tribunal, this plea of minor son having taken the car without his permission, was not even taken by the appellant either before the concerned authority or the Juvenile Justice Board. In a matter like this, when the parents of minor children permit him / her to drive a motor vehicle, not only they put the live of their own children in danger but also endanger the life of common citizen. In the present case, the deceased Mr Harender Kumar, a young man of 42 years lost his life only because the appellant did not take appropriate steps to ensure that his vehicle is driven only by a person holding a valid driving licence. This court, therefore, cannot condon such an act of the appellant and fasten the liability on the insurance company when it is evident that the terms of the insurance policy were breached by the appellant himself".
43. Hon'ble High Court of Delhi in the case of New India Assurance Company Ltd. v. Mohinder Singh, MAC APP. No. 482/09 dated 14.08.12 while dealing with a similar case where the driver was a minor aged 16 years has held that even if there is a conscious breach of terms and conditions of policy by the insured even then so far as third party is concerned compensation is to be given by the insurance company in the first instance with right to recover the same from the owner as per law.
44. In view of above-said discussion, it is proved that the terms and conditions of insurance policy were breached by R-1 and R-2 and same was a fundamental breach. In view of this, the insurance company MACP No.589/19; Babita Devi & Ors Vs. Arpit Bhargava & Ors.
MACP No.590/19; Rita Devi & Ors Vs. Arpit Bhargava & Ors. Page 29 of 31would be entitled for recovery of compensation payable to the petitioner from the respondent No. 2 / registered owner.
ISSUE ON INTEREST (Issue No. (iv) in MACP No. 589/19 and Issue No. 3 in MACP No. 590/19
45. The petitioners have conducted the proceedings in these cases since the year 2019. Therefore, they are entitled for interest @ 7.5% per annum on the aforesaid respective award amount from the date of filing of the petitions till realization. (Refer: "Oriental Insurance Company Ltd. Vs. Sangeeta Devi & Ors, MAC. APP. 165/2011 decided on 22.02.2016).
RELIEF:
(MACP No. 589/19 : In re- Babita Devi & Ors.)
46. This Tribunal awards a compensation of Rs.31,29,000/-
(rupees thirty one Lakhs twenty nine Thousands Only) to the petitioners along with interest @ 7.5% per annum from the date of filing of petition till realization to be paid by the respondent no.3/ insurance company which shall be recovered by the insurance company from the respondent No.2. Amount of interim award, if any, be deducted from the compensation amount along with the waiver of interest, if any, as directed by the Tribunal during the pendency of this case.
(MACP No. 590/19 : In re- Rita Devi & Ors.)
47. This Tribunal awards a compensation of Rs.32,67,000/- (rupees thirty two lakhs sixty seven thousands Only) to the petitioners MACP No.589/19; Babita Devi & Ors Vs. Arpit Bhargava & Ors.
MACP No.590/19; Rita Devi & Ors Vs. Arpit Bhargava & Ors. Page 30 of 31along with interest @ 7.5% per annum from the date of filing of petition till realization to be paid by the respondent no.3/ insurance company which shall be recovered by the insurance company from the respondent No.2. Amount of interim award, if any, be deducted from the compensation amount along with the waiver of interest, if any, as directed by the Tribunal during the pendency of this case.
48. The apportionment of the award amount shall be decided only after deposit of award amount.
49. With these observations, the claim petition is disposed of.
50. Files be consigned to Record Room.
Announced in the open (Mayuri Singh) Court on 03.06.2024 Presiding Officer-MACT (East) (Total 31 pages) Karkardooma Courts, Delhi
MACP No.589/19; Babita Devi & Ors Vs. Arpit Bhargava & Ors.
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