Delhi District Court
31013 Rajni Devi vs Ram Prasad Page 1 Of 23 on 17 December, 2018
31013 Rajni Devi vs Ram Prasad Page 1 of 23
IN THE COURT OF SH. AMIT BANSAL , PRESIDING OFFICER, MOTOR
ACCIDENT CLAIMS TRIBUNAL, NORTH WEST DISTRICT, ROHINI
COURTS, DELHI
New No. 4920716
MACT PETITION No. : 31013
UNIQUE ID No. : DLNW010000112013
1. Smt. Rajni Devi w/o Late Sh. Parmod Chauhan
(Widow of deceased Parmod Chauhan)
.....Petitioner No.1.
2. Ms. Deepti Chauhan d/o Late Sh. Parmod Chauhan
(minor daughter of deceased Parmod Chauhan)
.......Petitioner No.2.
3. Ms. Anjali Chauhan d/o Late Sh. Parmod Chauhan
(minor daughter of deceased Parmod Chauhan)
.......Petitioner No.3.
4. Ms. Kirtika d/o Late Sh. Parmod Chauhan
(minor daughter of deceased Parmod Chauhan)
....... Petitioner no. 4.
5. Smt. Santosh Devi w/o Sh. Satish Pal
(mother of deceased Parmod Chauhan)
....... Petitioner no. 5
6. Sh. Satish Pal S/o Sh. Rich Pal
(father of deceased Parmod Chauhan)
(petitioner no. 2 to 4 are minor through their mother and natural
guardian Smt. Rajni Devi for petitioner no. 1)
R/o H. No. E158, Part Pratap Vihar, Kirari Suleman Nagar, Delhi.
Versus
1. Sh. Ram Prasad @ Ram Prakash S/o Sh. Bhure Singh
R/o Village Pavara, P.S. Jalesar, Etah, UP
.... (Driver /R1)
2. Sh. Krishna Veer S/o Sh. Jai Singh
R/o B6, Transit Camo, Ward no. 16, Rudrapur, Uttrakhand.
.... (Owner /R2)
3. The Oriental Insurance Co Ltd.
88, Janpath, Cannaught Place, New Delhi.
......... (Insurance/R3)
..... Respondents
31013 Rajni Devi vs Ram Prasad Page 1 of 23
31013 Rajni Devi vs Ram Prasad Page 2 of 23
Other details
DATE OF INSTITUTION : 02.07.2013
DATE OF RESERVING JUDGMENT : 17.12.2018
DATE OF PRONOUNCEMENT : 17.12.2018
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 15.09.2012
2. Date of intimation of the accident by the It is outstation
investigating officer to the Claims Tribunal accident i.e. Udham
(Clause 2) Singh Nagar,
Uttrakhand.
3. Date of intimation of the accident by the It is outstation
investigating officer to the insurance company. accident i.e. Udham
(Clause 2) Singh Nagar,
Uttrakhand
4. Date of filing of Report under section 173 It is outstation
Cr.P.C. before the Metropolitan Magistrate accident i.e. Udham
(Clause 10) Singh Nagar,
Uttrakhand
5. Date of filing of Detailed Accident Information It is outstation
Report (DAR) by the investigating Officer before accident i.e. Udham
Claims Tribunal (Clause 10) Singh Nagar,
Uttrakhand
6. Date of Service of DAR on the Insurance It is outstation
Company (Clause 11) accident i.e. Udham
Singh Nagar,
Uttrakhand
7. Date of service of DAR on the claimant (s). It is outstation
31013 Rajni Devi vs Ram Prasad Page 2 of 23
31013 Rajni Devi vs Ram Prasad Page 3 of 23
(Clause 11) accident i.e. Udham
Singh Nagar,
Uttrakhand
8. Whether DAR was complete in all respects? It is outstation
(Clause 16) accident i.e. Udham
Singh Nagar,
Uttrakhand
9. If not, whether deficiencies in the DAR removed It is outstation
later on? accident i.e. Udham
Singh Nagar,
Uttrakhand
10. Whether the police has verified the documents It is outstation
filed with DAR? (Clause 4) accident i.e. Udham
Singh Nagar,
Uttrakhand
11. Whether there was any delay or deficiency on It is outstation
the part of the Investigating Officer? If so, accident i.e. Udham
whether any action/direction warranted? Singh Nagar,
Uttrakhand
12. Date of appointment of the Designated Officer It is outstation
by the insurance Company. (Clause20) accident i.e. Udham
Singh Nagar,
Uttrakhand
13. Name, address and contact number of the It is outstation
Designated Officer of the Insurance Company. accident i.e. Udham
(Clause 20) Singh Nagar,
Uttrakhand
14. Whether the designated Officer of the Insurance It is outstation
Company submitted his report within 30 days of accident i.e. Udham
the DAR? (Clause 20) Singh Nagar,
Uttrakhand
15. Whether the insurance company admitted the It is outstation
liability? If so, whether the Designated Officer of accident i.e. Udham
the insurance company fairly computed the Singh Nagar,
compensation in accordance with law. (Clause Uttrakhand
23)
16. Whether there was any delay or deficiency on It is outstation
the part of the Designated Officer of the accident i.e. Udham
Insurance Company? If so, whether any Singh Nagar,
action/direction warranted? Uttrakhand
17. Date of response of the claimant (s) to the offer It is outstation
of the Insurance Company .(Clause 24) accident i.e. Udham
Singh Nagar,
Uttrakhand
31013 Rajni Devi vs Ram Prasad Page 3 of 23
31013 Rajni Devi vs Ram Prasad Page 4 of 23
18. Date of the Award 17.12.2018
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 19.02.2018
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 11.07.2018
passbook of their saving bank account near the
place of their residence along with the
endorsement, PAN Card and Aadhar Card?
(Clause 18)
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 Rajnisavings bank
IFSC Code (Clause 27) a/c no.
604202010024250
Petitioner no. 2 Ms .
Anjali savings bank
a/c no.
604202010024243,
petitioner no. 3 Ms.
Deeptisavings bank
account no.
604202010024244
with Union Bank of
India, Sector22,
Rohini, Delhi,
petitioner no. 4 Ms.
Kirtika savings bank
a/c no.
33049348243,
petitioner no. 5 Sh.
Satish PalSavings
bank a/c no.
37788189440 and
petitioner no. 6 Smt.
Santosh Devisavings
bank a/c no.
31013 Rajni Devi vs Ram Prasad Page 4 of 23
31013 Rajni Devi vs Ram Prasad Page 5 of 23
37788190658 with
SBI Bank, Rithala
branch, Delhi
IFSC : SBIN0007817
: UBIN0560421
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.
JUDGMENT
1. Present claim petition has been preferred under Section 166 and 140 of Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act') claiming compensation for a sum of Rs. 80,00,000/ (Rupees Eighty lakhs Only) along with interest @ 18% p.a. in respect of accidental death of Sh. Parmod Chauhan in a motor vehicular accident.
2. The petitioners have averred in the petition that on 15.09.2012 at about 3:18 pm, Sh. Parmod Chuhan (hereinafter referred to as 'deceased') along with other persons were travelling in vehicle bearing registration no. UKD7742 (hereinafter referred to as 'offending vehicle') which was being driven by its driver/R1 at a very high speed, in a rash and negligent manner. When the offending vehicle/car reached between Baajpur and Kashipur, K.M No. 50189, Phatak, District Udham Singh Nagar, Uttrakhand, then R1 lost control over the offending vehicle and hit it against the train no. 55317 with great force. As a result, the deceased received fatal injuries whereas other persons were grievously injured. It is stated that the said accident was caused due to sole negligent driving on the part of the driver of offending vehicle. It is stated in the petition that postmortem was conducted at Maulana Azad Medical College and Lok Nayak hospital, Delhi.
31013 Rajni Devi vs Ram Prasad Page 5 of 23 31013 Rajni Devi vs Ram Prasad Page 6 of 23It has been mentioned in the petition that after the accident the deceased was removed to District Hospital, Kashipur from the place of accident where first aid was given and thereafter he was shifted to Mimhans hospital, Meerut where he remained admitted from 16.09.2012 to 23.09.2012. He was shifted from there to City hospital affiliated with Sir Ganga Ram hospital, Delhi where he was admitted on 23.09.2012 and died on 30.09.2012 during the treatment due to the injuries received in the accident.
It has been mentioned in the petition that a criminal case was registered against the driver of the offending vehicle in P.S. RPF Kashipur, District Udham Singh Nagar, Uttarkhand vide FIR No. 324/12 dt. 15.09.2012 u/s 153/161 of Railway Act.
It was mentioned in the petition that at the time of the death, the age of the deceased was about 35 years, he was working with Nirmal Seeds Pvt Ltd. PO Box No. 36, Bhadgaon road, Pachora, District Jalgaon, India and was earning about Rs. 20,000/ per month.
3. R1/Ram Prasad/driver of the offending vehicle has filed his written statement wherein he has stated that there was no negligence on his part and that the said accident was caused due to the negligence of Indian Railways. He has stated that the offending vehicle was insured with the Oriental Insurance Company Ltd.
4. R2/Krishan Veer/owner of the offending vehicle has filed his written statement wherein he has stated that there was no negligence on the part of R1 and that the said accident was caused due to the negligence of Indian Railways. He stated that on 15.09.2012 R1 was driving the Bolero Jeep slowly on his side, when R1 reached near railway phatak no. 36 C, KM 50/89, then suddenly a train no. 55317 came without giving any horn, there was no railway staff on the railway crossing and the offending vehicle suddenly dashed into the train. He has stated that the offending vehicle was insured with the Oriental Insurance Company Ltd.
5. R3/Oriental Insurance co. Ltd filed its written statement and submitted 31013 Rajni Devi vs Ram Prasad Page 6 of 23 31013 Rajni Devi vs Ram Prasad Page 7 of 23 that the petition is liable to be dismissed on the sole ground that this Tribunal did not have the jurisdiction. It has been submitted that the driver of the offending vehicle did not hold a valid and effective driving licence at the time of accident. It has been submitted that petition is liable to be dismissed on the ground that the accident was occurred due to negligence of the train no. 55317 at the railway gate (without human crossing). It has been stated that the FIR No. 324/12 dated 15.09.2012 has been lodged against the driver of the offending vehicle at PS RPF Kashipur, Uttarakhand U/s 153/161 of Railway Act. It has been submitted that the FIR was not registered u/s 279/337/338/304A IPC. It has been admitted that offending vehicle was insured with it vide policy no. 253800/31/2013/1209 w.e.f 16.08.2012 to 15.09.2013 in the name of Sh. Krishna Veer i.e. covering the date of accident 15.09.2012.
6. From the pleadings of the parties, the following issues were framed by Ld. Predecessor of this court vide order dated 13.04.2015: (1) Whether Sh. Parmod Chauhan died on 15.09.2012 at about 3:18 pm, at Baajpur and Kashipur, K.M. No. 50189, Phatak, Kashipur, District Udham Singh Nagar, Uttrakhand, due to rash and negligent driving of the car bearing registration no. UKD7742 driven by Ram Prasad @ Prem Prakash?
(2). Whether petitioners are entitled to compensation, if so, to what amount and from whom?
(3). Relief.
7. The petitioners in support of their case have examined Smt. Rajni Devi (petitioner no.1/ wife of deceased) as PW1, Sh. Ramesh Singh Rawat (eye witness) as PW2 and Sh. Ajeet Pathak, Liasoning Officer, Nirmal Seeds Pvt Ltd. as PW3.
Respondents did not lead any evidence in support of their respective case.
7. I have heard the arguments addressed on behalf of ld counsel for petitioner and ld counsel for insurance co/R3. Now, I proceed to discuss the issues in 31013 Rajni Devi vs Ram Prasad Page 7 of 23 31013 Rajni Devi vs Ram Prasad Page 8 of 23 the succeeding paragraphs.
8. Issue wise findings are as under: ISSUE NO. 1 The onus to prove this issue beyond preponderance of probabilities is upon the petitioners.
PW1 Smt. Rajni Devi has filed and proved her evidence by way of affidavit as Ex. PW1/A. She has also filed and proved her additional evidence by way of affidavit as Ex. PW1/B. She has proved the aadhar card and death certificate of deceased as Ex. PW1/1 to Ex. PW1/2, aadhar card and voter card of petitioners/claimants as Ex. PW1/3 to Ex. PW1/8, certified copies of complaint form u/s 180 (A) Amended Railway Act as Ex. PW1/9 (colly) and certified copy of order dated 16.11.2012 as Ex. PW1/10. She has also proved the medical bills as Ex. PW1/10 (colly).
PW1 deposed that her husband Pramod Chauhan/deceased met with an accident on 15.09.2012 with car bearing no. UKD 7742 and died due to the injuries received in the accident.
PW1 was cross examined by respondents wherein she has inter alia deposed that she was not an eye witness of the accident.
Petitioners have examined PW2/Sh. Ramesh Singh Rawat who has tendered his evidence by way of affidavit as Ex. PW2/A. He deposed that on 15.09.2012 at about 3:18 pm he along with the deceased and other persons were going in car bearing no. UKD7742 (offending vehicle) and the said car was being driven by its driver at a very high speed, rashly and negligently. He deposed that when the offending vehicle reached between Baajpur and Kashipur, K.M. No. 501/89, Phatak, Kashipur, District Udham Singh Nagar, Uttrakhand, the driver of the offending vehicle due to high speed lost control over it and hit it against the train no. 55317 with great force. He deposed that due to forceful impact all the persons of the offending vehicle/car received grievous injuries whereas deceased received fatal injuries in the accident. He deposed that the said accident was caused due to sole negligent driving on 31013 Rajni Devi vs Ram Prasad Page 8 of 23 31013 Rajni Devi vs Ram Prasad Page 9 of 23 the part of the driver of offending vehicle.
The said witness was cross examined on behalf of R1 and R2 wherein he denied the suggestion that on the day of accident, he was not travelling in the vehicle with the deceased or that he was not an eye witness of the accident. He deposed that he was not aware if any criminal proceedings pertaining to the said accident were pending.
PW2 was also cross examined on behalf of insurance co/R3 wherein he denied the suggestions that he was not present at the time of accident or that he was not an eye witness or that the said accident was caused by the driver of train. He volunteered that it was caused by driver of the car. He deposed that he did not know whether his name was mentioned as a witness by the police or not and volunteered that he was sitting in the vehicle. He deposed that he did not know the name of the driver of vehicle in which he was travelling at the time of accident. He deposed that he was going to Rudarpur from the surrounding area of Kashipur and he was traveling in the car with two persons. He deposed that except the driver of the car, he along with Sh. Pramod Chauhan were travelling in the car and he was sitting in the car from the beginning. He deposed that nobody was present at the crossing of the railway and volunteered that despite his repeated requests to the driver of the car to drive the car at slow speed and in proper manner, he did not pay any attention to his instructions. He deposed that the car, in which he was travelling along with Sh. Pramod Chauhan was on hire basis. He denied the suggestions that the driver of the car was not arrested at the spot by the concerned police or that his statement was not recorded by the concerned police.
The postmortem report of deceased is also on record which would show that the cause of death was due to cerebral damage consequent upon blunt force trauma to the head, all injuries were antemortem in nature about 2 weeks old in duration caused by blunt force and possible in road traffic accident.
31013 Rajni Devi vs Ram Prasad Page 9 of 23 31013 Rajni Devi vs Ram Prasad Page 10 of 23The testimony of PW2 seems to be truthful and reliable. Nothing has appeared in his cross examination to discredit his testimony. It has been proved by the testimony of PW2 and postmortem report that the deceased was traveling in offending vehicle which was being driven rashly and negligently and on 15.09.2012 at about 3:18 pm at the above mentioned place, the driver of the offending vehicle while driving it rashly and negligently hit it against a train due to which he sustained injuries and expired on 30.09.2012. It is pertinent to note that R1 in his written statement has not denied the factum of accident of the offending vehicle which he was driving with a train. R1 and R2 have preferred not to lead any evidence to substantiate their contention that the accident occurred due to negligence of Railways. It has thus been proved that the accident was caused due to sole negligence on part of R1.
In the said circumstances, 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.
It is also pertinent to note that the ld counsel for R3 argued that this Tribunal was not having a jurisdiction in the matter, whereas, the ld counsel for petitioners/claimants argued that this Tribunal has jurisdiction as the accident arose out of the use of a motor vehicle. He also referred to the judgment of Hon'ble Apex Court in case of Union of India (UOI) vs Bhagwati Prasad, AIR 2002 SC 1301:2002(2)SCALE 487.
It is an admitted position that the accident in the present matter arose out of the use of a motor vehicle i.e. offending vehicle. The Hon'ble Apex Court in the case of Bhagwati Prasad(Supra) has inter alia held as follows:
" ................... The crucial expression conferring jurisdiction upon the Claims Tribunal constituted under the Motor Vehicles Act is the 31013 Rajni Devi vs Ram Prasad Page 10 of 23 31013 Rajni Devi vs Ram Prasad Page 11 of 23 accident arising out of use of Motor Vehicle, and therefore, if there has been a collision between the motor Vehicle and Railway train then all those persons injured or died could make application for compensation before the Claims Tribunal not only against the owner, driver or insurer of the Motor Vehicle but also against the Railway Administration. Once such an application is held to be maintainable and the Tribunal entertains such an application, if in course of enquiry the Tribunal comes to a finding that it is the other joint tortfeasor connected with the accident who was responsible and not the owner or driver of the Motor Vehicle then the Tribunal cannot be held to be denuded of its jurisdiction which it had initially. In other words, in such a case also the Motor Vehicle Claims Tribunal would be entitled to award compensation against the other joint tortfeasor, and in the case in hand, it would be fully justified to award compensation against the Railway Administration if ultimately it is held that it was the sole negligence on the part of the Railway Administration........................."
In view of the law as settled in the above said judgment and facts of the case, it is evident that this Tribunal has jurisdiction under the M.V. Act as the accident arose out of the use of a Motor Vehicle (offending vehicle).
Issue no.1 is decided in favour of petitioners and against the respondents accordingly.
9. Issue No. (2) In view of my findings on issue no.1, the petitioners are entitled to compensation.
(a) PW1 Smt. Rajni Devi (wife of the deceased) has deposed through her evidence by way of affidavits Ex. PW1/A & Ex. PW1/B. The copy of Secondary School Examination certificate of the deceased is on record which shows his date of birth as 04.05.1978. It would show that the deceased was aged about 34 years 04 months at the time of his accident. ( date of 31013 Rajni Devi vs Ram Prasad Page 11 of 23 31013 Rajni Devi vs Ram Prasad Page 12 of 23 accident is 15.09.2012 ).
PW1 deposed that her husband was doing service with Nirmal Seeds Pvt Ltd PO Box No. 63, Bhadgaon Road, Pachora, District Jalgaon, India and was earning about Rs. 20,000/ per month as a salary.
Petitioners have examined Sh. Ajeet Pathak, Liasioning Officer, Nirmal Seeds Pvt Ltd as PW3 who has proved his authority/resolution letter to depose as Ex. PW3/1 and his identity card as Ex. PW3/2. He has also proved the appointment letter and joining letter of deceased as Ex. PW3/3 (colly) and bank voucher through which salary was paid to deceased as Ex. PW3/4 (colly) (for the month of July to Sept).
The said witness was cross examined by respondents wherein he inter alia deposed that the name of deceased was Parmod Kumar and his name appeared at sl. no. 205 at Ex. PW3/4. He deposed that he had not brought muster roll concerning the deceased. He admitted that he had not brought the original of Ex. PW3/3. He volunteered that he had been authorised to depose in this court on that behalf. He denied the suggestions that deceased was not working with organization or that he was not getting Rs. 15,000/ per month. He deposed that the company used to maintain the salary record of Parmod Kumar and other employee. He deposed that he had brought the salary record of Parmod Kumar issued by the company as a computerised copy. He denied the suggestions that all the three salary record have not been authenticated by any of authorised persons or that all the documents brought by him were forged and fabricated.
The document Ex. PW3/4 shows that deceased was getting a salary of Rs. 15,000/ per month and his name has also been mentioned. The copy of the appointment letter of the deceased for the post of Seed Production Officer from Nirmal Seeds Pvt Ltd with consolidated salary of Rs. 15,000/ per month has also been proved as Ex. PW3/3 (colly). It would prove that the deceased was working as a Seed Production Officer with Nirmal Sees Pvt Ltd and was earning Rs. 15,000/ per month as his salary. Accordingly, it would be reasonable and just to consider the income of petitioner as Rs.15,000/ per 31013 Rajni Devi vs Ram Prasad Page 12 of 23 31013 Rajni Devi vs Ram Prasad Page 13 of 23 month on the date of accident in question.
(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 31013 Rajni Devi vs Ram Prasad Page 13 of 23 31013 Rajni Devi vs Ram Prasad Page 14 of 23 personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore.
(vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment.
(vii) The age of the deceased should be the basis for applying the multiplier.
(viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and future expenses should be Rs. 15,000/, Rs. 40,000/ and Rs. 15,000/ respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years. "
(.... Emphasis Supplied) 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.
The age of the deceased, as discussed above, in the present case was about 34 years & 4 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.
The monthly income of the deceased is thus calculated as Rs. 15,000/+40% of 15,000/ which comes to Rs.15,000/+ Rs. 6000/. = Rs. 21,000/.
(c) Deduction towards personal and living expenses of the deceased:
Deceased was married and petitioners being his LRs were dependents upon the deceased. Petitioner no. 1 is the wife of the deceased 31013 Rajni Devi vs Ram Prasad Page 14 of 23 31013 Rajni Devi vs Ram Prasad Page 15 of 23 and petitioners no 2 to 4 are the minor children of the deceased. Petitioner no. 5 is the mother of the deceased and petitioner no. 6 is the father of the deceased. In the absence of any other evidence on record, the petitioner no. 6 being father of deceased would not be considered as a dependent upon the deceased. In view of said discussion, there were total 5 dependents upon the deceased at the time of his death.
In the said circumstances, 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 34 years 4 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. As per the case of Sarla Verma (Supra), the multiplier of 16 is to be adopted when the age of the victim is between 31 years to 35 years. Accordingly, the relevant multiplier would be "16" 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. 30,24,000/ [i.e. Rs. 21,000/ ( per month income of the deceased) X12 X16 (multiplier) X3/4 (dependency)].
10. 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, Rs. 15,000/ towards funeral expenses and Rs. 40,000/ is also granted towards loss of consortium.31013 Rajni Devi vs Ram Prasad Page 15 of 23 31013 Rajni Devi vs Ram Prasad Page 16 of 23
11. 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 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.
12. Medical Expenses PW1 Smt. Rajni has proved the original medical bills qua the deceased as Ex. PW1/10 (colly). Other medical bills being only photocopy have not been properly proved on record. The original medical bills are to the tune of Rs. 2,98,598/. Therefore, the said amount of Rs. 2,98,598/ is granted to the petitioners towards medical bills/expenses.
13. Petitioners/claimants are accordingly entitled to compensation computed as under:
Loss of financial dependency Rs. 30,24,904/
Loss of Estate Rs. 15,000/
Funeral Expenses Rs. 15,000/
Loss of Consortium Rs. 40,000/
Medical Expenses Rs. 2,98,598/
________________
Total Rs. 33,93,502/
________________
[Rounded off to Rs. 33,93,500/]
(Rupees Thirty Three lakhs Ninety Three Thousand Five 31013 Rajni Devi vs Ram Prasad Page 16 of 23 31013 Rajni Devi vs Ram Prasad Page 17 of 23 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 02.07.2013 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 In the case in hand, the Oriental Insurance company/R3 has not been able to show anything on record that R1, who was the driver of the offending vehicle was not having any valid driving licence to drive the offending vehicle or that the permit of offending vehicle was not valid and 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.
15. 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 company/R3 is directed to deposit the awarded amount of Rs.33,93,500/ 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 31013 Rajni Devi vs Ram Prasad Page 17 of 23 31013 Rajni Devi vs Ram Prasad Page 18 of 23 of the cheque.
APPORTIONMENT
16. 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. 5,00,000/ each be given to petitioners namely Smt. Santosh Devi and Sh. Satish Pal who are parents of deceased and from the same an amount of Rs. 1,00,000/ each be released to them in their savings bank account a/c no. 37788190658 (in the name of Smt.Santosh Devi) and in saving bank a/c no. 37788189440 (in the name of Sh. Satish Pal) with SBI, Rithala Branch, Delhi as per rules i.e. the branch near their place of residence (as mentioned in statement recorded under clause 27 MCTAP) and remaining amount be kept in his name in 36 FDRs of equal amount for a period of one month to 36 months with cumulative interest without the facility of advance, loan and premature withdrawal without the prior permission of the Tribunal.
Further, an amount of Rs. 5,00,000/ each be given to petitioners namely Ms. Deepti Chauhan, Ms. Anjali and Ms. Kirtika who are minor daughters of deceased and same be kept in FDR in their name till they attain the age of majority and after maturity the same be released/transferred in their savings bank a/c no.604202010024243 (in the name of Ms. Anjali), A/c No. 604202010024244 (in the name of Ms. Deepti) with Union Bank of India, Sector22, Rohini Branch, Delhi and savings bank a/c no. 33049348243 with SBI, Rithala Branch, Delhi i.e. the branch near their place of residence (as mentioned in statement recorded under clause 27 MCTAP) without the 31013 Rajni Devi vs Ram Prasad Page 18 of 23 31013 Rajni Devi vs Ram Prasad Page 19 of 23 facility of advance, loan and premature withdrawal without the prior permission of the Tribunal.
Remaining amount be given to Smt. Rajni Devi who is widow of deceased, out of which an amount of Rs. 1,00,000/ be released to her in her savings bank account a/c no. 604202010024250 with Union Bank of India, Sector22, Rohini Branch, Delhi as per rules i.e. the branch near their place of residence (as mentioned in statement recorded under clause 27 MCTAP) and remaining amount be kept in his name in 48 FDRs of equal amount for a period of one month to 48 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.
(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.
31013 Rajni Devi vs Ram Prasad Page 19 of 23 31013 Rajni Devi vs Ram Prasad Page 20 of 23(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.
17. Relief As discussed above, R3/Insurance co is directed to deposit the award amount of Rs. 33,93,500/ with interest @ 9% per annum from the date of filing of petition i.e. 02.07.2013 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 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 petitioners was also recorded wherein they had stated that they were entitled to exemption from 31013 Rajni Devi vs Ram Prasad Page 20 of 23 31013 Rajni Devi vs Ram Prasad Page 21 of 23 deduction of TDS and that they would submit form 15G to the insurance co. so that no TDS is deducted.
18. 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. The insurance co./R3 is also directed to obtain the copy of PAN card of the petitioners from the record.
Digitally signedAMIT by AMIT BANSAL BANSAL Date: 2018.12.18 11:23:02 +0530 Announced in open court (AMIT BANSAL) on 17th December 2018 PO MACT N/W Rohini Courts, Delhi. 31013 Rajni Devi vs Ram Prasad Page 21 of 23 31013 Rajni Devi vs Ram Prasad Page 22 of 23 FORM - IV A
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN DEATH CASES TO BE INCORPORATED IN THE AWARD
1. Date of accident : 15.09.2012
2. Name of deceased: Parmod Chauhan
3. Age of the deceased: 34 years
4. Occupation of the deceased: Self employed/private job
5. Income of the deceased: 21,000/ per month
6. Name, age and relationship of legal representatives of deceased:
S.No. Name Age Relation
(i) Smt. Rajni Devi 33 years Wife
(ii) Smt. Santosh 58 years Mother
(iii) Sh. Satish Pal 68 years Father
(iv) Ms. Deepti 13 years Daughter
(v) Ms. Anjali 10 years Daughter
(vi) Ms. Kirtika 8 years Daughter
Computation of Compensation
S.No. Heads Awarded by the Claims
Tribunal
7. Income of the deceased (A) Rs. 15000/ .
8. AddFuture Prospects (B) 40%= Rs. 6000/
9. LessPersonal expenses of the 1/4
deceased (C )
10. Monthly loss of dependency 15,750/
{ (A+B) - C =D}
11. Annual loss of dependency (Dx12) 1,89,000/
12. Multiplier (E) 16
13. Total loss of dependency (Dx12xE Rs.30,24,000/ = F)
14. Medical Expenses (G) Rs. 2,98,598/
15. Compensation for loss of love and Nil affection (H) 31013 Rajni Devi vs Ram Prasad Page 22 of 23 31013 Rajni Devi vs Ram Prasad Page 23 of 23
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. 33,93,500/ (F+G+H+I+J+K =L)
20. RATE OF INTEREST AWARDED 9% 21 Interest amount up to the date of Rs. 16,54,330/ award (M)
22. Total amount including interest Rs. 50,47,830/ (L+M)
23. Award amount released Rs. 3,00,000/
24. Award amount kept in FDRs Rs. 47,47,830/
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 21.01.2019.
award. (Clause 31)
Digitally signed
by AMIT
AMIT BANSAL
BANSAL Date:
2018.12.18
11:23:16 +0530
(AMIT BANSAL)
PO MACT N/W
Rohini Courts, Delhi.
17.12.2018
31013 Rajni Devi vs Ram Prasad Page 23 of 23