Delhi District Court
Lr' Of Jitender vs Ajay Rai Page 1 Of 30 on 27 June, 2020
LR' of Jitender vs Ajay Rai Page 1 of 30
IN THE COURT OF SH. AMIT BANSAL, PRESIDING OFFICER, MOTOR
ACCIDENT CLAIMS TRIBUNAL, NORTH WEST DISTRICT, ROHINI
COURTS, DELHI
New No. 5015816
UNIQUE ID No. : DLNW010010452014
1. Smt. Hira Devi W/o Sh. Sher Ram
(mother of deceased Jatinder)
2. Sh. Sher Ram S/o Late sh. Hari Ram
( father of deceased)
Both R/o Q80D, Rajiv Nagar Extension, Begumpur, Delhi.
........ Petitioners/claimants
Vs.
1. Sh. Ajay Rai s/o Sh. Nageshwar Rai
R/o Gali No. 5, Part IInd, Mukandpur, Delhi.
....... Driver /R1
2. Sh. Neeraj
R/o A284, K. No. 17/8/9, Harit Vihar, Kamalpur Mazra, Burari, Delhi.
....... Owner /R2
3. M/s Oriental Insurance Co. Ltd
1, Legal Department, 88, Janpath, New Delhi.
..... Insurance co/R3
..... Respondents
AMIT Other details
BANSAL
DATE OF INSTITUTION : 22.08.2014
by AMIT BANSAL DATE OF RESERVING JUDGMENT : 27.06.2020
Digitally signed
15:41:54 +0530 DATE OF PRONOUNCEMENT : 27.06.2020
Date: 2020.06.27
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LR' of Jitender vs Ajay Rai Page 2 of 30
FORM - V
1. COMPLIANCE OF THE PROVISIONS OF THE MODIFIED CLAIMS
TRIBUNAL AGREED PROCEDURE TO BE MENTIONED IN THE
AWARD AS PER FORMAT REFERRED IN THE ORDER PASSED
BY THE HON'BLE DELHI HIGH COURT IN FAO 842/2003 RAJESH
TYAGI Vs. JAIBIR SINGH & ORS. VIDE ORDER DATED
07.12.2018.
1. Date of the accident 21.06.2014
2. Date of intimation of the accident by the 22.08.2014
investigating officer to the Claims Tribunal
3. Date of intimation of the accident by the 22.08.2014
investigating officer to the insurance company.
4. Date of filing of Report under section 173 Not mentioned in the
Cr.P.C. before the Metropolitan Magistrate DAR
5. Date of filing of Detailed Accident Information 22.08.2014
Report (DAR) by the investigating Officer before
Claims Tribunal
6. Date of Service of DAR on the Insurance 22.08.2014
Company
AMIT 7. Date of service of DAR on the claimant (s). 22.08.2014
8.
BANSAL Whether DAR was complete in all respects? Yes
9.
Digitally signed If not, whether deficiencies in the DAR removed N/A
by AMIT BANSAL later on?
Date: 2020.06.27
15:42:12 +053010. Whether the police has verified the documents Yes.
filed with DAR?
11. Whether there was any delay or deficiency on N/A
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the part of the Investigating Officer? If so,
whether any action/direction warranted?
12. Date of appointment of the Designated Officer 22.08.2014
by the insurance Company.
13. Name, address and contact number of the Sh. S.K. Tyagi, Ld
Designated Officer of the Insurance Company. Advocate
14. Whether the designated Officer of the Insurance No
Company submitted his report within 30 days of
the DAR? (Clause 22)
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.
16. Whether there was any delay or deficiency on N/A
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 Legal offer filed but
of the Insurance Company . not accepted.
18. Date of the Award 27.06.2020
19. Whether the award was passed with the consent No
of the parties?
20. Whether the claimant(s) were directed to open Yes
saving bank account(s) near their place of
residence?
21. Date of order by which claimant(s) were 04.04.2019
directed to open saving bank account (s) near
Digitally his place of residence and produce PAN Card
and Aadhar Card and the direction to the bank
signed by
AMIT
AMIT BANSAL
BANSAL Date:
2020.06.27
not issue any cheque book/debit card to the
15:42:33
+0530 claimant(s) and make an endorsement to this
effect on the passbook(s).
22. Date on which the claimant (s) produced the 29.08.2019
passbook of their saving bank account near the
place of their residence along with the
LR' of Jitender vs Ajay Rai Page 3 of30
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endorsement, PAN Card and Aadhar Card?
23. Permanent Residential Address of the As mentioned above
Claimant(s)
24. Details of saving bank account(s) of the Petitioner no.1 Sh.
claimant(s) and the address of the bank with Sher Ram savings
IFSC Code bank a/c No.
520402010273467
petitioner no. 2 Smt.
Hira Devi savings
bank a/c no.
520402010273465
with Union Bank of
India, Sector9,
Rohini, Delhi
IFSC : UBIN0552046
25. Whether the claimant(s) saving bank account(s) Yes
is near his place of residence?
26. Whether the claimant(s) were examined at the Yes
time of passing of the award to ascertain
his/their financial condition.
27. Account number/CIF No, MICR number, IFSC 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.
JUDGMENT
1. The Detailed Accident Report (hereinafter referred to as DAR) was filed in this case on 22.08.2014 with reference to FIR No.409/14 U/s Digitally signed by 279/337 IPC PS North Rohini and subsequent charge sheet u/s 279/304A AMIT AMIT IPC which was filed in respect of death of Jitender Kumar. The ld. BANSAL BANSAL Date:
2020.06.27 15:42:52 +0530 Predecessor of this court vide order dated 22.08.2014 treated the same as LR' of Jitender vs Ajay Rai Page 4 of30 LR' of Jitender vs Ajay Rai Page 5 of 30 petition u/s 166(4) of the Motor Vehicles Act, 1988(hereinafter referred to as M.V. Act).
2. The facts mentioned in the DAR/file are that on 21.06.2014 at about 01:20 am, Sh. Jitender Kumar (hereinafter referred to as 'deceased') was going towards his residence on his motorcycle No. DL11SF0466 at a normal speed. At about 01:20 am, when he reached at pillar no. 418, Opposite D15, Near Geeta Ratan Jindal Public School main road, Rohini, Delhi, then a dumper/truck bearing registration no. HR69A0577 (hereinafter referred to as "offending vehicle") which was being driven by its driver at a very high speed, in a rash and negligent manner came and hit the motorcycle of deceased. Due to said impact, the deceased sustained grievous injuries. The deceased was removed to Dr. BSA Hospital, Delhi and he ultimately expired at 5:40 am on the same day.
2.1 The postmortem on the dead body of the deceased was conducted by doctors of Dr. BSA Hospital, Delhi vide PMR No. 404/14 wherein the cause of death was opined as due to hemorrhagic shock consequent upon trauma to the abdomen and pelvis, all injuries were antemortem, fresh before death, caused by blunt force/surface and could be sustained in a road traffic accident.
3. R1/Ajay Rai who was the driver and Sh. Neeraj/R2 who was the owner of the offending vehicle have not filed their written statement and were ultimately proceeded against exparte vide order dated 12.10.2017. AMIT BANSAL 4. R3/ Oriental Insurance Co. Ltd has filed legal offer of Rs. 7,68,536/.
The claimants/petitioners rejected the said legal offer. It was stated that the Digitally signed by AMIT BANSAL Date: insurance policy of the offending vehicle i.e. dumper/truck no. HR69A 2020.06.27 15:43:06 +0530 LR' of Jitender vs Ajay Rai Page 5 of30 LR' of Jitender vs Ajay Rai Page 6 of 30 0577 was valid for the period 31.12.2013 to 30.12.2014 which was issued in the name of R2.
5. From the pleadings of the parties, the following issues were framed by the ld predecessor of this court vide order dated 16.11.2015: (1) Whether on 21.06.2014 at about 1:30 am, at pillar no. 418, near D 15, Geeta Ratan Jindal Public School, main road, Delhi, one truck bearing registration no. HR69A0577 which was being driven rashly and negligently by Ajay Rai/R1 hit motorcycle bearing registration no. DL11SF0466 and caused the death of Jitender? (2). Whether petitioners are entitled to compensation, if so, to what amount and from whom?
(3). Relief.
6. Petitioners have examined Sh. Sher Ram (father of deceased) as PW1, Sh. Sharwan Kumar as PW2 and Sh. Kapil Kashyap (eye witness) as PW3 in support of their case.
6.1 Oriental Insurance co/R3 has examined one witness namely Ms. Neelam Rani, its Assistant, as R3W1. R1 and R2 did not lead any evidence in support of their case.
7. I have heard the arguments addressed on behalf of ld counsel for petitioners and ld counsel for insurance co/R3 through video conferencing due to Covid 19 situation. Now, I proceed to discuss the issues in the succeeding paragraphs.
AMIT BANSAL8. Issue wise findings are as under: Digitally signed by AMIT BANSAL ISSUES NO. 1 Date: 2020.06.27 15:43:20 +0530 The onus to prove this issue beyond preponderance of LR' of Jitender vs Ajay Rai Page 6 of30 LR' of Jitender vs Ajay Rai Page 7 of 30 probabilities is upon the petitioners.
8.1 Petitioners/claimants have examined Sh. Kapil Kashyap as PW3. He deposed that he did not know the deceased. He deposed that on 21.06.2014 at about 1:20 am, he was coming in a private cab after attending a marriage at Nangloi and at that time when he reached Pillior no. 418, Opposite D15 near Geeta Ratan Jindal Public School, Main Road, Rohini, Delhi, he saw that a person had already met with an accident, he had fallen from his bike and was bleeding. He deposed he did not remember the registration number of the said bike. He deposed that he got stopped his cab, he went to the injured who disclosed his name as Jitender and told him that one truck/dumper which was standing a bit ahead on the side of the road had hit the bike of the injured. He deposed that he did not remember the registration number of the said truck, however, he could identify the driver of the said offending truck who was standing there and making a call on his mobile phone. He deposed that the said driver was not present in the court on that day. A court observation was recorded to the effect that R1 and R2 were already exparte vide order dated 12.10.2017.
8.2 PW3 further deposed that the said injured had sustained grievous injuries all over his body, he got the said injured shifted in the cab to Dr. BSA hospital, he remained at the hospital for about 2 hours, AMIT intimated the family of the injured and thereafter left the hospital. He BANSAL deposed that he received a call from police station after two days intimating Digitally signed by AMIT BANSAL him that the injured had expired.
Date: 2020.06.27 15:43:30 8.3 PW3 further deposed that the registration number of the +0530 LR' of Jitender vs Ajay Rai Page 7 of30 LR' of Jitender vs Ajay Rai Page 8 of 30
offending vehicle pertained to Haryana and its initial number was HR69A, however, he did not remember the later part of registration number. He deposed that he could neither admit nor deny if the later part of the registration number of the offending vehicle was 0577 or not. 8.4 He further deposed that his statement was recorded by the police at PS North Rohini after about one week of the accident. He admitted that in the said statement dated 23.06.2014 he had mentioned the truck/dumper no. as HR69A0577. His said statement dated 23.06.2014 u/s 161 Cr.PC has been proved as Ex. PW3/1.
8.5 PW3 was not cross examined on behalf of R1 and R2 and his cross examination by R1 and R2 was nil, opportunity given. R1 and R2 shall thus be deemed to admit the above said testimony of PW3 and the contents of Ex. PW3/1.
8.6 PW3 was cross examined by ld counsel for insurance co/R3 wherein he deposed that he was not an eye witness in the sense that he did not see the actual collision between the truck/dumper and the bike. He deposed that he did not make any call at 100 number. He denied the suggestion that he was not present at the spot even after the accident. He deposed that he did not remember the registration number of the cab in which he was traveling. He deposed that he also did not know the name of the cab driver.
8.7 As discussed above, the statement of PW3 u/s 161 Cr.PC dated 23.06.2014 has been proved as Ex. PW3/1. Perusal of said AMIT BANSALstatement would show that PW3 has stated to the police that in the intervening night of 2021.06.2014 he after attending a marriage function Digitally signed by AMIT BANSAL Date: 2020.06.27 15:43:44 +0530 LR' of Jitender vs Ajay Rai Page 8 of30 LR' of Jitender vs Ajay Rai Page 9 of 30 was going to his house in a car when at about 01:30 am in front of Jindal Public School a truck/dumper no. HR69A0577 hit motorcycle no. DL 11SF0466 which was going at the side of the road and dragged the motorcycle rider to some distance. He further stated that the truck driver parked the said offending vehicle near the side of the road in front of the motorcycle, saw the injured and fled from the spot. He further stated that he shifted the injured to BSA hospital. The ld counsel for insurance co. has not cross examined PW3 on the aspect of his said statement Ex. PW3/1. The site plan as part of DAR would also show that the accident occurred towards the left side of the road. The seizure memos of motorcycle no.DL 11SF0466 and offending vehicle i.e. dumper/truck no. HR69A0577 are also on record. Notice u/s 133 M.V. Act as given to R2 is also on record which would show that he produced R1 as the driver of the offending vehicle who cause the accident at the relevant date and time. The mechanical inspection reports of both the vehicles are on record showing fresh damages. The mechanical inspection report of the offending vehicle would show that its front bumper and body right side portion was bent and its right side HL ring was also bent. Its front windscreen glass was broken. It would show that the offending truck had hit the motorcycle of the deceased from behind with its front bumper proving that the case accident occurred due to rash and negligent driving of R1 while he was driving the said offending vehicle. It is also pertinent to note that a legal offer has already been filed by insurance co/R3 showing that it has no dispute that AMIT BANSAL the case accident was caused by the offending vehicle being driven by R1 in a rash and negligent manner.
Digitally signed by AMIT BANSAL Date: 2020.06.27 15:43:56 +0530 8.8 A charge sheet u/s 279/304A IPC in the corresponding FIR LR' of Jitender vs Ajay Rai Page 9 of30 LR' of Jitender vs Ajay Rai Page 10 of 30
No. 409/14 PS North Rohini was also filed against R1. The said criminal case record including the FIR can also be relied upon to prove the negligence on the part of R1. It is a settled law that the copy of criminal case record pertaining to involvement of the offending vehicle, criminal record showing completion of investigation by police and issuance of charge sheet u/s 279/304A IPC against the driver, copy of FIR, recovering memo and mechanical inspection report of the offending vehicle and vehicle of the deceased are sufficient proofs to reach the conclusion that the driver was negligent. It is further a settled law that the proceedings under the M.V. Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in that regard. My views are substantiated by the judgment of Hon'ble Delhi High Court in the case of National Insurance Company Ltd. Vs Smt. Pushpa Rana & Ors., MAC. APP. NO. 360/2007, date of decision 20.12.2007.
8.9 In the said circumstances, testimony of PW3 and other record including the Charge sheet against R1 and legal offer by R3, it has been 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 thereby caused the death of deceased.
Issue no.1 is decided in favour of petitioners and against the respondents accordingly. Digitally signed by AMIT AMIT BANSAL Date:
BANSAL 2020.06.27
15:44:09
+0530
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9. Issue No. (2)
In view of my findings on issue no.1, the petitioners are entitled to compensation.
9.1 PW1 (father of the deceased) has deposed through his evidence by way of affidavit Ex. PW1/A. He deposed that his deceased son was working as a photographer with Fotocentre at Complete Digital Photo Studio at 314/B9, Sec3, Rohini, Delhi and was earning Rs. 9000/ per month at the time of his death.
9.2 PW1 was cross examined on behalf of ld counsel for R3 wherein he denied the suggestions that his son was not earning Rs. 9000/ per month or that his son was not employed with Photocentre in Rohini, Delhi. 9.3 Petitioners have also examined Sh. Sharwan Kumar as PW2. He deposed that deceased namely Late Sh. Jitender Kumar was employed at Foto Centre, Digital Photo Studio, 314/B9, Sector3, Rohini, Delhi. He deposed that he was the proprietor of the said photo centre. He deposed that the deceased worked in the said centre from the year 2012 till 21.06.2014 i.e the day on which he expired. He deposed that at the time of his death, the deceased was earning Rs. 9,000/ per month as his salary. He proved the salary certificate dt. 04.07.2014, issued by him on the letter head of Foto Centre as Ex.PW2/A, bearing his signature at point A. 9.4 PW2 was cross examined by ld counsel for insurance co/R3 wherein AMIT he inter alia deposed that he had not issued any appointment letter to the BANSAL deceased. He deposed that the salary of Rs. 9,000/ was being paid to the Digitally signed by AMIT BANSAL deceased in cash. He deposed that he was not maintaining any salary Date: 2020.06.27 15:44:31 +0530 register to show that the said salary was being paid to the deceased in cash. He deposed that on the date of recording of his testimony, he had LR' of Jitender vs Ajay Rai Page 11 of30 LR' of Jitender vs Ajay Rai Page 12 of 30 three employees in his shop and he was not maintaining any salary register qua any employee. He deposed that he did not obtain any signatures of the deceased on any document or receipt while paying him any salary. He deposed that he was not maintaining any documentary record in his office to show that deceased was working as an employee with him in his abovesaid shop. He denied the suggestions that the deceased was not working as an employee in his shop or that he was not paying Rs. 9,000/ as last salary to him. He denied the suggestion that the document Ex.PW2/A had been prepared afterwards to facilitate the compensation amount to the deceased.
9.5 The alleged salary certificate Ex. PW2/A is merely a hand written document on the letter head of the shop. The said document and the testimony of PW2 is totally unreliable as PW2 deposed in his cross examination that he had not issued any appointment letter to the deceased, he was not maintaining any salary register to show that the said salary of Rs. 9000/ was being paid to the deceased in cash, he did not obtain any signature of the deceased on any document or receipt while paying him any salary and that he was not maintaining any documentary record in his office to show that the deceased was working as an employee with him in his said shop. It cannot be believed that PW2 was paying salary to the deceased in cash and was not obtaining his signatures on any document or AMIT BANSAL receipt while paying any such salary. In the said circumstances, the testimony of PW2 and the document Ex. PW2/A are unreliable and the Digitally signed by AMIT BANSAL petitioners have failed to prove that either the deceased was working in the Date:
2020.06.27 15:44:43 said shop of PW2 at the time of his death or that he was receiving a salary +0530 of Rs. 9000/ per month at the time of his death from the said shop. In the LR' of Jitender vs Ajay Rai Page 12 of30 LR' of Jitender vs Ajay Rai Page 13 of 30 said circumstances, the petitioners have failed to properly prove the work status and monthly income of the deceased. The school leaving certificate of deceased is Mark A which mentions the date of birth of deceased as 12.03.1991. The date of accident and death of deceased was 21.06.2014(death certificate of deceased has been proved as Ex. PW1/1).
It would show that deceased was aged about 23 years & 3 months at the time of his death. Mark A also mentions that the deceased was studying in class IX. PW1 i.e. father of deceased has also deposed in his cross examination that the deceased had left his studies while he was in ninth class.
9.6 In view of the said discussion, it would be appropriate to assess the income of the deceased on the basis of minimum wages of non matriculate worker as fixed by the Govt. of NCT of Delhi under the Minimum Wages Act. The minimum wages of a non matriculate worker at the relevant time on the date of accident was Rs.9438/ p.m. Accordingly, it would be reasonable and just to consider the income of petitioner as Rs. 9438/ per month on the date of accident in question.
10. Addition of future prospects If addition in income towards future prospects is to be made 10.1 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 AMIT BANSAL (Civil) No. 25590 of 2014, date of decision 31.10.2017.
Digitally signed10.2 In the said judgment of Pranay Sethi (Supra), the Hon'ble by AMIT Apex Court interalia held as under: BANSAL Date:
2020.06.27 15:44:55 +0530 LR' of Jitender vs Ajay Rai Page 13 of30 LR' of Jitender vs Ajay Rai Page 14 of 30
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 AMIT personal and living expenses, the tribunals and the courts BANSAL shall be guided by paragraphs 30 to 32 of Sarla Verma which we have Digitally signed reproduced hereinbefore.
by AMIT BANSAL Date: (vi) The selection of multiplier shall be as indicated in the 2020.06.27 15:45:05 +0530 LR' of Jitender vs Ajay Rai Page 14 of30 LR' of Jitender vs Ajay Rai Page 15 of 30 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) 10.3 In the case in hand, the deceased was a self employed person 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. 10.4 The age of the deceased, as discussed above, in the present case was about 23 years & 3 months. In view of paragraph no. 61 (iv) of above said judgment in Pranay Sethi (Supra), the deceased would be entitled to an addition of 40% of the established income as he was below the age group of 40 years at the time of his death. 10.5 The monthly income of the deceased is thus calculated as Rs. 9438/+40% of 9438/ which comes to Rs. 9438/+ Rs.3775/ (after rounding of). = Rs.13,213/.
AMIT 11. Deduction towards personal and living expenses of the BANSALdeceased:
11.1 Digitally signed Deceased was unmarried at the time of accident. PW1 i.e. father by AMIT BANSAL Date:
of deceased has deposed in his cross examination that the deceased was 2020.06.27 15:45:14 +0530 LR' of Jitender vs Ajay Rai Page 15 of30 LR' of Jitender vs Ajay Rai Page 16 of 30 unmarried at the time of accident. Claimants are the parents of deceased. The father of deceased cannot be said to be dependent upon the deceased Hence, the mother of deceased is only dependent upon the deceased at the time of his death. In facts, the deduction towards personal and living expenses of the deceased should be 50% 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.
12. Selection of multiplier:
12.1 As discussed above, the age of the deceased was about 23 years & 3 months 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. Accordingly, the relevant multiplier would be "18" as per judgment in case of Sarla Verma (Supra) which has been upheld in paragraph no. 61 (vi) in case of Pranay Sethi (Supra).
13. Loss of financial dependency 13.1 In the light of aforesaid facts, loss of financial dependency of the petitioner comes to Rs. 14,27,004/ [i.e. Rs. 13,213/ ( per month income of the deceased) X12 X18 (multiplier) X1/2 (dependency)].
14. Compensation under nonpecuniary heads/conventional heads:
In view of the judgment of Constitution Bench of Hon'ble Apex AMIT Court in case of Pranay Sethi (Supra), as held in paragraph number 61 BANSAL (viii) of the said judgment, the petitioners would be entitled to Rs. 15,000/ Digitally signed towards loss of estate and Rs. 15,000/ towards funeral expenses. by AMIT BANSAL Date: 2020.06.27 15:45:31 +0530 LR' of Jitender vs Ajay Rai Page 16 of30 LR' of Jitender vs Ajay Rai Page 17 of 30
15. Filial Consortium/Consortium.
The deceased was an unmarried person and the petitioners/claimants are his parents. It is now a settled law in terms of Judgment of Hon'ble Supreme Court of India, in case of Magma General Insurance Co. Ltd vs Nanu Ram and Ors, Civil Appeal No. 9581 of 2018, date of decision 18.09.2018: 2018(8) SCJ 338:2018 SCC Online SC 1546 and the judgment of Hon'ble Delhi High Court in case of Uttrakhand Transport Corporation Vs. Jyoti Sardana, MAC.APP.920/2017, date of decision 03.04.2019 that the compensation under the head of filial consortium is required to be awarded to all the claimants to the tune of Rs. 40,000/ each. In the present case there are 2 claimants who are parents of the deceased, hence, Rs. 80,000/ (Rs. 40,000/ x 2) are being granted under the said head. My views are also substantiated by the latest judgments of Hon'ble Delhi High Court in cases United India Ins. Co. Ltd. Vs Manorama Aggarawal & Ors., MAC.APP. 250/2015, date of decision 09.01.2020 & Om Prakash & Ors vs Ved Prakash & Anr, MAC.APP 114/2019 date of decision 28.01.2020.
16. LOSS OF LOVE & AFFECTION 16.1 The Hon'ble Delhi High Court in the latest case of The Oriental Insurance Co. Ltd vs Rinku Devi & Ors, MAC.APP. 815/2019, CM APPL. 44502/2019 & CM APPL. 44503/2019 date of decision 09.10.2019 after referring to Pranay Sethi (Supra) and Magma General Insurance AMIT BANSALCo. Ltd (Supra) has given Rs. 50,000/ each to the claimants towards loss of love and affection. In view of above, Rs. 1,00,000/ (Rs. 50,000/ x 2) is Digitally signed by AMIT BANSAL granted to claimants as there are 2 claimants. My views are also Date: 2020.06.27 15:45:47 +0530 LR' of Jitender vs Ajay Rai Page 17 of30 LR' of Jitender vs Ajay Rai Page 18 of 30 substantiated by the latest judgments of Hon'ble Delhi High Court in cases United India Ins. Co. Ltd. Vs Manorama Aggarawal & Ors., MAC.APP. 250/2015, date of decision 09.01.2020 & Om Prakash & Ors vs Ved Prakash & Anr, MAC.APP 114/2019 date of decision 28.01.2020.
17. Medical Bills/Expenses PW1 has proved the entire DAR as Ex. PW1/5. It contains 3 payment receipts of Rs. 4600/ each of Saroj Hospital and Heart Institute, Rohini. The total of said bills/receipts comes to Rs. 13,800/. Hence, Rs. 13,800/ are being given under the said head.
17.1 Petitioners/claimants are accordingly entitled to compensation computed as under:
Loss of financial dependency Rs. 14,27,004/ Loss of Estate Rs. 15,000/ Funeral Expenses Rs. 15,000/ Loss of Consortium/Filial Consortium Rs. 80,000/ Loss of Love and Affection Rs. 1,00,000/ Medical Bills/expenses Rs. 13,800/ ________________ Total Rs. 16,50,804/ ________________ [Rounded off to Rs. 16,51,000/] (Rupees Sixteen Lakhs Fifty one Thousand only) 17.2 The claimants/petitioners are also entitled to interest @ 9% p.a. for the date of filing of DAR/petition i.e. w.e.f 22.08.2014 till realisation of AMIT the compensation amount. The said interest @ 9% p.a. was awarded on BANSALthe award amount by the Hon'ble Apex Court in case Municipal Digitally signed by AMIT Corporation of Delhi vs. Association of Victims of Uphaar Tragedy, BANSAL Date: 2020.06.27 15:45:57 +0530 LR' of Jitender vs Ajay Rai Page 18 of30 LR' of Jitender vs Ajay Rai Page 19 of 30 2012 ACJ 48 (SC) .
17.3 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.
18. Liability
18.1 In the case in hand, the Oriental Insurance co./R3 has examined Ms. Neelam Rani, its Assistant as R3W1. She deposed that the company got the Dasti notice through its counsel for the service upon DTO Muzaffarpur, Bihar. She deposed that the same had been served on 24.05.2019 and the same was Ex. R3W1/1. She deposed that the insurance company got the DL no. 1886G106 issued in the name of Sh. Ajay Ray, S/o Sh. Nageshwar Ray, R/o Village Salimpur, PS Triyani, Distt. Sheohar, Bihar verified through its investigator Sh. Rakesh Kumar and his report dated 20.08.2018 is Ex. R3W1/2. She deposed that the said investigator has also supplied the verification report of District Transport Office, Muzaffarpur dated 09.08.2018 with regard to DL no. 1886G/06 which is Ex. R3W1/3. She proved the receipt of payment of fees in DTO Muzaffarpur, dated 04.08.2018 is Ex. R3W1/4. She deposed that as per the report of DTO, the DL bearing no. 1886G/06 had not been issued from that office. She has proved the certified copy of the insurance policy as Ex. R3W1/5.
18.2 R3W1 was cross examined by ld counsel for petitioner wherein she admitted that she had personally not visited the office of DTO, Muzaffarpur AMIT BANSALfor verification of the license. She deposed that the same was verified through investigator Sh. Rakesh Kumar.
Digitally signed by AMIT BANSAL Date: 2020.06.2718.3 The DAR Ex. PW1/5 would show that the driving licence of R1 was 15:46:06 +0530LR' of Jitender vs Ajay Rai Page 19 of30 LR' of Jitender vs Ajay Rai Page 20 of 30 seized by the police vide seizure memo dated 21.06.2014 during investigation of the case FIR no. 409/14 PS North Rohini. It would further show that its no. was DL50/09 valid for LMV & HGV issued 08.06.2009 till 07.01.2015. The DAR would further show that the IO had also verified the same from DTO Sheohar. The said verification report would show that the old DL no. of R1 was 1886G/06 from DTO Muzzafarpur and that the new DL no. 50/09 was valid from 07.01.2012 to 07.01.2015 for LMV & HGV only. The insurance co/R3 through the testimony of R3W1 has proposed to prove that the old DL no. 1886G/06 was not issued from the office of DTO Muzaffarpur. The insurance co/R3 has filed one report of its investigator Rakesh Kumar along with one letter from DTO Muzaffarpur in that regard as Ex. R3W1/2 and Ex. R3W1/3 respectively. It is pertinent to note that neither said investigator Sh. Rakesh Kumar nor DTO Muzaffarpur have been examined by R3 on record. R3W1 in her cross examination has fairly admitted that she had personally not visited the office of DTO Muzaffarpur. R3 has failed to explain as to why even its investigator Sh. Rakesh Kumar could not be examined by it in support of its case. In the said circumstances, no reliance can be placed upon the report of Sh. Rakesh Kumar investigator which is Ex. R3W1/2 and the report Ex. R3W1/3 which also bears the stamp of said Sh. Rakesh Kumar. On the other hand, as discussed above, the DAR contains the verification report by the IO from DTO Sheohar mentioning the new DL no. 50/09 and previous DL no. 1886G/06 of DTO Muzaffarpur of R1 with validity period from 07.01.2012 to AMIT BANSAL07.01.2015 for LMV & HGV only. It is further pertinent to note that as Digitally signed discussed above, R3 has already filed its legal offer in favour of the by AMIT BANSAL Date: petitioners wherein no such defence has been taken by it. In the said 2020.06.27 15:46:17 +0530LR' of Jitender vs Ajay Rai Page 20 of30 LR' of Jitender vs Ajay Rai Page 21 of 30 circumstances, the Insurance co/R3 has not been able to prove on record that R1, who was the driver of the offending vehicle was not having a valid driving licence to drive the offending vehicle. There is no dispute regarding the permit of the offending vehicle as on the date of the accident. In view of said discussion, the plea of insurance co./R3 regarding recovery rights as raised during final arguments is without any merits and is thus rejected. As per settled law, since the offending vehicle was duly insured with the insurance company/R3, hence R3 is liable to pay the entire compensation amount to the petitioner as per law.
19. 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., Oriental Insurance co./R3 is directed to deposit the awarded amount of Rs. 16,51,000/ 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 AMIT deposit in its own name till the claimants approach the bank for BANSAL disbursement, so that the awarded amount starts earning interest from the date of clearance of the cheque.
Digitally signed by AMIT BANSAL Date: 2020.06.27 15:46:26 +0530 LR' of Jitender vs Ajay Rai Page 21 of30
LR' of Jitender vs Ajay Rai Page 22 of 30
APPORTIONMENT
19.1. Joint statement of petitioners in terms of clause 29 MCTAP was recorded on 29.08.2019 regarding their savings bank a/c with endorsement of MACT claims SB A/c, no loan, cheque book & ATM/debit card. 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: 19.2 Keeping in view the facts and circumstances of the case, said statement of the petitioners and clause 32 of MCTAP regarding protection of the award amount, it is hereby directed that on realization, an amount of Rs. 6,51,000/ be given to Sh. Sher Ram and from the same an amount of Rs. 60,000/ be released to him in his MACT Claims SB A/c no.520402010273467 with Union Bank of India, Sector9, Rohini branch, Delhi as per rules i.e. the branch near his place of residence (as mentioned in statement recorded under clause 29 MCTAP) and remaining amount be kept in Motor Accident Claims Annuity Account (MACAD) so that the maximum benefits can be availed by the petitioner. In case, the AMIT MACAD scheme has not become fully operational in the concerned bank, BANSAL till the time the same becomes fully operational, the remaining amount be Digitally signed kept in 60 FDRs of equal amount for a period of one month to 60 months by AMIT BANSAL Date: respectively with cumulative interest without the facility of advance, 2020.06.27 15:46:42 +0530 LR' of Jitender vs Ajay Rai Page 22 of30 LR' of Jitender vs Ajay Rai Page 23 of 30 loan and premature withdrawal without the prior permission of the Tribunal.
19.3 Further, remaining amount be given to Smt. Hira Devi and from the same an amount of Rs. 1,00,000/ be released to her in her MACT Claims SB A/c no.520402010273465 with Union Bank of India, Sector9, Rohini branch, Delhi as per rules i.e. the branch near her place of residence (as mentioned in statement recorded under clause 29 MCTAP) and remaining amount be kept in Motor Accident Claims Annuity Account (MACAD) so that the maximum benefits can be availed by the petitioner. In case, the MACAD scheme has not become fully operational in the concerned bank, till the time the same becomes fully operational, the remaining amount be kept in 72 FDRs of equal amount for a period of one month to 72 months respectively with cumulative interest without the facility of advance, loan and premature withdrawal without the prior permission of the Tribunal.
19.4 The aforesaid award amount shall be disbursed to the claimant
(s) through the Motor Accidents Claims Tribunal Annuity Deposit (MACAD) Scheme formulated by Hon'ble Delhi High Court vide order dated 07.12.2018 in case of Rajesh Tyagi vs Jaibir Singh, FAO 842/2003. However, till the time MACAD Scheme becomes fully operational and to ensure that the petitioner is not put to any undue inconvenience, the fixed deposits shall be subject to following conditions: AMIT BANSAL (a) The bank shall not permit any joint name(s) to be added in the Digitally signed savings bank account or fixed deposit accounts of the victim i.e. the by AMIT BANSAL Date: saving bank account(s) of the claimant(s) shall be individual savings 2020.06.27 15:47:04 +0530 LR' of Jitender vs Ajay Rai Page 23 of30 LR' of Jitender vs Ajay Rai Page 24 of 30 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 monthly interest be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant/(s) near the place of their residence.
(d) The maturity amount of the FDR(s) be credited by Electronic Clearing System (ECS) in the saving bank account of the claimant(s) near the place of their residence i.e. above said a/c.
(e) No loan, advance or withdrawal or 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. 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.
AMIT (g) The bank shall make an endorsement on the passbook of the BANSAL claimant(s) to the effect, that no cheque book and/or debit card have Digitallybeen issued and shall not be issued without the permission of the signed by court and claimant(s) shall produce the passbook with the necessary AMIT BANSAL Date:
endorsement before the court on the next date fixed for compliance.
2020.06.27
15:47:13
+0530
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(h) It is clarified that the endorsement made by the bank along with the duly signed and stamped by the bank official on the pass book(s) of the claimant(s) is sufficient compliance of clause (g) above.
20. Relief 20.1 As discussed above, R3 is directed to deposit the award amount of Rs. 16,51,000/ with interest @ 9% per annum from the date of filing of DAR/petition i.e. 22.08.2014 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 petitioner and his advocate failing which the R3 shall be liable to pay interest @ 12% per annum from the period of delay beyond 30 days. 20.2 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. 20.3 A copy of this judgment/award be sent to respondent no. 3 for compliance within the granted time.
20.4 Nazir is directed to place a report on record in the event of non receipt/deposit of the compensation amount within the granted time.
In terms of directions contained in the order dated 07.12.2018 and subsequent order dated 22.02.2019 of Hon'ble Mr. AMIT Justice J.R. Midha in the case of Rajesh Tyagi & Ors vs Jaibir Singh & BANSAL Ors., FAO 842/2003, the copy of the award be also sent by the Ahlmad Digitally signed by AMIT BANSAL of the court to Mr. Rajan Singh, Assistant General Manager, State Date: 2020.06.27 15:47:22 +0530 LR' of Jitender vs Ajay Rai Page 25 of30 LR' of Jitender vs Ajay Rai Page 26 of 30 Bank of India (as per the list of nodal officers of 21 banks of Indian Bank's Association as circulated to the Motor Accident Claims Tribunal vide above mentioned order dated 22.02.2019 of Hon'ble Delhi High Court) who is the Nodal Officer with contact details (022 22741336/9414048606) {other detailsPersonal Banking Business Unit (LIMA) 13th Floor, State Bank Bhawan, Madame Cama Road, Nariman Point, Mumbai400021} through email ([email protected]) through the computer branch of Rohini Courts, Delhi. Ahlmad of the court is directed to take immediate steps in that regard. 20.5 A copy of this award be forwarded to the concerned Metropolitan Magistrate and DLSA in terms of the orders passed by the Hon'ble High Court in FAO 842/2003 Rajesh Tyagi Vs. Jaibir Singh & 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, joint statement of petitioners was also recorded on 29.08.2019 wherein they had stated that claimants were entitled to exemption from deduction of TDS and that they would submit form 15G to insurance co. so that no TDS is deducted.
Digitally
signed by
AMIT
AMIT BANSAL
BANSAL Date:
2020.06.27
15:47:33
+0530
LR' of Jitender vs Ajay Rai Page 26 of30
LR' of Jitender vs Ajay Rai Page 27 of 30
21. 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 Digitally necessary compliance as per rules. signed by AMIT BANSAL AMIT Date:
BANSAL 2020.06.27
15:48:40
+0530
Announced in open court (AMIT BANSAL)
on 27th June 2020 PO MACT N/W
Rohini Courts, Delhi.
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FORM - IV A
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN DEATH CASES TO BE INCORPORATED IN THE AWARD
1. Date of accident : 21.06.2014
2. Name of deceased: Sh. Jitender
3. Age of the deceased: 23 years 3 months at the time of accident
4. Occupation of the deceased: Self employed/private job
5. Income of the deceased: 13,213/ per month
6. Name, age and relationship of legal representatives of deceased:
S.No. Name Age Relation
(i) Smt. Hira Devi 55 years Mother
(ii) Sh. Sher Ram 70 years father
(iii)
(iv)
AMIT (v)
BANSAL
Digitally signed
by AMIT Computation of Compensation
BANSAL
Date:
2020.06.27
15:48:50 +0530
S.No. Heads Awarded by the Claims
LR' of Jitender vs Ajay Rai Page 28 of30
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Tribunal
7. Income of the deceased (A) Rs. 9438/ .
8. AddFuture Prospects (B) 40%= Rs.3775/
9. LessPersonal expenses of the 1/2th
deceased (C )
10. Monthly loss of dependency Rs.6606/
{ (A+B) - C =D}
11. Annual loss of dependency (Dx12) Rs. 79,272/
12. Multiplier (E) 18
13. Total loss of dependency (Dx12xE Rs. 14,26,896/ = F)
14. Medical Expenses (G) Rs. 13,800/
15. Compensation for loss of love and Rs. 1,00,000/ affection (H)
16. Compensation for loss of Rs. 80,000/ 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. 16,51,000/ (after (F+G+H+I+J+K =L) rounding of)
20. RATE OF INTEREST AWARDED 9% 21 Interest amount up to the date of Rs 8.66,770/ award (M)
22. Total amount including interest Rs. 25,17,770/ (L+M) AMIT BANSAL
23. Award amount released Rs. 1,60,000/ to the Digitally signed by AMIT petitioners.
BANSAL Date: 2020.06.2724. Award amount kept in FDRs Rs 23,57,770/ 15:48:59 +0530 LR' of Jitender vs Ajay Rai Page 29 of30 LR' of Jitender vs Ajay Rai Page 30 of 30
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 04.08.2020.
award. (Clause 31)
Digitally
signed by
AMIT
AMIT BANSAL
BANSAL Date:
2020.06.27
15:49:05
+0530
(AMIT BANSAL)
PO MACT N/W
Rohini Courts, Delhi.
27.06.2020
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