Delhi District Court
Pankaj Kashyap vs Pradeep Kumar on 28 March, 2023
IN THE COURT OF MS. EKTA GAUBA MANN
PO:MACT-01 (NORTH): ROHINI COURTS: DELHI
MACT No. 321/18
FIR no. 369/17
PS Swaroop Nagar
1. Pankaj Kashyap
R/o HSIDC Plot No. 93,
Sector-3, Phase-I, HGC Saha3,
Saha (93) Ambala, (Haryana)-133104.
2. Manish Kashyap
R/o 2554, Bengali Mohalla,
Ambala Cantt, Ambala, (Haryana).
(Both sons of deceased Ashok Kumar)
.........Petitioners
VERSUS
1. Pradeep Kumar
S/o Ram Dhari
R/o 6/240, Gyan Nagar,
Sonepat (HR).
2. Mukesh Kumar Gupta
S/o Sh. Om Parkash Gupta
R/o H. No. 5/73, Ward No. 23,
Aggarsain Nagar, Sonepat, (Haryana).
3. United India Insurance Co. Ltd.
RO-I, 8th Floor, Kanchanjangha Building,
Barakhamba Road, New Delhi-110001.
......Respondents
DATE OF INSTITUTION : 10.05.2018
DATE OF AWARD : 28.03.2023
Pankaj Kashyap & Anr. Vs. Pradeep Kumar & Ors.
MACT no. 321/18 1
FORM - IV A
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN DEATH
CASES TO BE INCORPORATED IN THE AWARD
1. Date of accident: 10.12.2017
2. Name of deceased: Ashok Kumar
3. Age of the deceased: 57 years
4. Occupation of the deceased: Private work.
5. Income of the deceased: 4,50,278/- per annum
6. Name, age and relationship of legal representatives of deceased: S.No. Name Age Relation (i) Pankaj Kashyap 40 years Son (ii) Manish Kashyap 38 years Son Computation of Compensation S.No. Heads Awarded by the Claims Tribunal 7. Income of the deceased (A) 3,36,400/- after tax deduction as per ITR for the assessment year 2017-18. 8. Add-Future Prospects (B) 10% (33,640 early) 9. Less-Personal expenses of the 1/4th, as son of the deceased deceased (C ) being not dependent upon income of deceased. As per Keith Rowe Vs. Prashant Sagar & Ors MAC. APP. No. 601 / 2007 decided on 15 January-2010 10. Monthly loss of dependency / Estate 7709.16 { (A+B) - C =D} 11. Annual loss of dependency / Estate 92,510/- (Dx12) 12. Multiplier (E) 9 Pankaj Kashyap & Anr. Vs. Pradeep Kumar & Ors. MACT no. 321/18 2
13. Total loss of dependency / Estate 8,32,590/-
(Dx12xE = F)
14. Medical Expenses (G) Nil.
15. Compensation for loss of love and 20,000 affection (H)
16. Compensation for loss of consortium Nil.
(I)
17. Compensation for loss of estate (J) As per Keith Rowe Vs. Prashant Sagar & Ors MAC.APP.No.601/2007 decided on 15 January-2010
18. Compensation towards funeral 20,000/-
expenses (K)
19. TOTAL COMPENSATION 8,72,590/-
(F+G+H+I+J+K =L)
20. RATE OF INTEREST AWARDED 9% per annum 21 Interest amount up to the date of award 3,83,503.30 (for 58 months and (M) 18 days i.e. from 10.05.2018 till passing the award)
22. Total amount including interest (L+M) 12,56,093.30 rounded up to Rs. 12,57,000/-
23. Award amount released 10%
24. Award amount kept in FDRs 90%
25. Mode of disbursement of the award In a phased manner amount to the claimant (s) (Clause 29)
26. Next date for compliance of the award. 28.04.2023 (Clause 31) FORM - XVII COMPLIANCE OF THE PROVISIONS OF THE SCHEME TO BE MENTIONED IN THE AWARD
1. Date of the accident 10.12.2017
2. Date of filing of Form-I First Accident Report Not available (FAR) Pankaj Kashyap & Anr. Vs. Pradeep Kumar & Ors.
MACT no. 321/18 33. Date of delivery of Form-II to victim(s) Not available
4. Date of receipt of Form-III from the driver Not available
5. Date of receipt of Form-IV from the owner Not available
6. Date of filing of the Form-V Interim Accident Not available Report(IAR)
7. Date of receipt of Form-VIA and Form VI B from Not available the victim(s)
8. Date of filing of Form-VII Detailed Accident 10.05.2018 Report(DAR)
9. Whether there was any delay or deficiency on the No. part of the Investigating Officer? If so, whether any action/direction warranted?
10. Date of appointment of the Designated Officer by Not appointed the insurance Company.
11. Whether the designated Officer of the Insurance No Company submitted his report within 30 days of the DAR?
12. Whether there was any delay or deficiency on the Not appointed part of the Designated Officer of the Insurance Company? If so, whether any action/direction warranted?
13. Date of response of the claimant to the offer of the No offer was filed. Insurance Company .
14. Date of the Award 28.03.2023
15. Whether the claimant(s) was/were directed to Yes open saving bank account near his/her place of residence?
16. Date of order by which claimant(s) was/were 4.11.2022 directed to open saving bank account near his/her 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 Pankaj Kashyap & Anr. Vs. Pradeep Kumar & Ors.
MACT no. 321/18 4and make an endorsement to this effect on the passbook(s).
17. Date on which the claimant(s) produced the 17.03.2023 passbook of their saving bank account near the place of his/her residence along with the endorsement, PAN Card and Aadhar Card?
18. PAN Card Number of claimant ATRPK9614L (Pankaj Kashyap) DAAPK5164E (Manish Kashyap)
19. Permanent Residential Address of the Claimant(s) As mentioned above
20. Whether the claimant(s) saving bank account(s) is Yes. near his/her place of residence?
21. Whether the claimant was examined at the time of Yes. passing of the award.
AWARD
1. IO filed 'Detailed Accident Report' (DAR) with respect to accident before this tribunal on 10.05.2018. Copy of DAR was supplied to both the parties.
2. Brief facts of the accident are that on 10.12.2017, at about 11 pm, the victim Ashok and Manoj (injured in connected case) were crossing the road on foot at Jain Mandir, GT Karnal Raod and one vehicle came from Sonepat and going towards Aazadpur by-pass and hit them due to which they suffered injuries and were taken to Fortis Hospital, Shalimar Bagh, Delhi and during the investigation vehicle i.e. Innova car bearing registration no. HR10 AB 4099 was found involved and causing the accident. IO also recorded statement of eye-witness Sandeep Sharma and accordingly, the DAR was filed.
3. Respondents no. 1 and 2, driver and owner of the offending vehicle Innova car bearing registration no. HR10AB 4099 have not filed any reply / written statement to the DAR and their right to file reply / written statement was closed vide order dated Pankaj Kashyap & Anr. Vs. Pradeep Kumar & Ors.
MACT no. 321/18 503.07.2018.
4. Respondent no. 3 / Ins. Co. in its written statement has not disputed that offending vehicle was insured with it on the date of accident, however it has disputed the involvement of the alleged offending vehicle. It has further denied its liability on technical grounds as well.
5. From the pleadings of parties, following issues were framed vide order dated 03.07.2018: -
1. Whether victim (Ashok Kumar) died due to vehicular accident on occurred on 10.12.2017 at 23 hrs. opposite Jain Mandir GT Karnal Road, Nanglipuna, Nain Mandir Road, Swaroop Nagar, Delhi. due to rash and negligent driving of vehicle no. HR10AB 4099 by respondent no. 1 (Pardeep Kumar)? OPP
2. Whether petitioners are entitled to compensation, if yes, what amount and from whom of respondents? OPP Relief.
6. Since IO has filed his supplementary statement, one additional following issue was framed vide order dated 20.07.2018: -
Whether the present claim has been filed in collusion with the eye-witness, if so, to what effect?
7. In order to prove the claim, petitioner no. 1 examined himself as PW1 and filed his evidence by way of affidavit Ex. PW1/A. As stated above, one Manoj also suffered injuries in the present accident and injured in connected case bearing no.
322/18 titled as "Manoj Kumar Vs. Pardeep Kumar" and being offshoot of the same accident, both the cases were clubbed together for the purpose of evidence and present case MACT no. 321/18 (present case) treated as leading case. Petitioner Manoj also examined himself in his case as PW1 and filed his evidence by way of affidavit Ex. PW1/A. Petitioners in the present case also examined PW2 Ms. Neena Nangla, Inspector, Income Tax Department and PW3 Sandeep Sharma-eye witness.
Pankaj Kashyap & Anr. Vs. Pradeep Kumar & Ors.
MACT no. 321/18 6Despite given number of opportunities, no evidence has been led by the respondents no. 1 and 2 well as by the respondent no. 3 / Ins. Co. hence, respondents' evidence was closed by court order dated 24.02.2023.
8. I have heard the arguments of Ld. counsels for petitioners and respondent no. 3 / Ins. Co. Since none has appeared on behalf of respondent no.1 & 2, so right of respondent no.1 & 2 to advance final arguments stands closed vide order dated 24.03.2023.
My findings issues wise are as under: -
Since the additional issue i.e. whether the present claim has been filed in collusion with the eye-witness, if so, to what effect? is with regard to collusion is taken up first.
9. Onus to prove this issue was upon the respondents no. 1 and 2 as well as of respondent no. 3 / Ins. Co. as respondent no. 3 / Ins. Co. has not disputed the fact that offending vehicle was insured with it on the date of accident. I have carefully perused the entire record. Petitioners has examined PW3 Sandeep Sharma, stated to be eye-witness of accident. PW3 deposed that on 10.12.2017 at about 11 pm he was going to his house from Singhu Boarder on his bike and when he reached opposite Jain Mandir, one vehicle make Innova bearing No. HR10AB 4099 came from back side i.e. Sonipat side in a zigzag manner, at a very high speed and going towards Azadpur side, in meanwhile two persons were crossing the road and the said Innova hit them. Many public persons gathered there and driver of the Innova ran away from the spot. In his cross examination, PW3 denied the suggestion that he has not seen the accident or that he was not present at the spot or that he is interested witness. In his cross examination, nothing material come on record to prove that he is not eye-witness of accident. This witness / PW3 is an independent witness and has no relation to the victim / injured as well as to the respondents no. 1 and 2, no Pankaj Kashyap & Anr. Vs. Pradeep Kumar & Ors.MACT no. 321/18 7
question put to the witness in this regard to show that PW3 is deposing to favour the petitioners or that he is an interested witness in whatsoever manner. Further, IO has specifically mentioned in the DAR that during the investigation the offending vehicle was found involved in the present case and accordingly charge sheet under Section 279/338/304A IPC was filed against the accused (respondent no. 1) after recording the statement of Sandeep Sharma / PW3 / eyewitness. Nither, respondents no. 1 and 2 and respondent no. 3 / Ins. Co. have led any evidence nor any document has been placed on record by them in this regard, which inter alia means that they are relying upon the DAR filed by the IO and as per Hon'ble High Court of Delhi, the DAR perse is admissible. This issue is accordingly decided in favour of petitioners holding that PW3 is an independent witness and has no collusion in any manner.
ISSUE NO. 1Whether victim (Ashok Kumar) died due to vehicular accident occurred on 10.12.2017 at 23 hrs. opposite Jain Mandir GT Karnal Road, Nanglipuna, Nain Mandir Road, Swaroop Nagar, Delhi. due to rash and negligent driving of vehicle no. HR10AB 4099 by respondent no. 1 (Pardeep Kumar)? OPP
10. Onus to prove this issue was upon the petitioner and to prove that accident has been caused due to rash and negligent driving by respondent no. 1 and victim died due to the fatal injuries suffered in this accident. Petitioner no. 1 Pankaj Kashyap, son of deceased filed his affidavit Ex. PW1/A in evidence and reiterated the facts as per the DAR and relied upon the DAR collectively Ex. PW1/4. PW1 deposed that his father Ashok Kumar met with road accident on 10.12.2017 at about 11 pm and admitted in Fortis Hospital, Shalimar Bagh, Delhi, where he was declared brought dead by the doctors. As stated above, PW3 Sandeep Sharma,eye-witness deposed that on 10.12.2017 at about 11 pm he was going to his house from Singhu Boarder on his bike and when he reached opposite Jain Mandir, one vehicle make Innova Pankaj Kashyap & Anr. Vs. Pradeep Kumar & Ors.
MACT no. 321/18 8bearing No. HR10AB 4099 came from back side i.e. Sonipat side in a zigzag manner, at a very high speed and going towards Azadpur side, in meanwhile two persons were crossing the road and the said Innova hit them. PW3 Sandeep Sharma further deposed that the injured persons were removed in a cab. The driver of the said Innova car ran away from the spot and the accident had occurred due to rash and negligent driving of Innova vehicle by its driver. Further, PW3 / eye-witness has not at all been cross examined by the respondents no. 1 and 2 nor respondent no. 1 examined himself to prove that he was not rash or negligent or that he was not at fault or that he has been falsely implicated in criminal case or that accident had occurred due to negligence on the part of victim or that he was not the driver of the offending vehicle at the time of accident. As stated above, criminal case record filed on record shows that respondent no. 1 was indicted / charge sheeted by police for offences punishable under Section 279/338/304A IPC. There is nothing on record which shows that respondent no. 1 approached to any higher authority or any forum against his alleged false implication, if any, in this case. Apart from deposition of PWs, the fact that victim suffered fatal injuries in the accident is also supported from his postmortem report filed along with DAR. Respondent no. 1 has not placed on record any document to disprove the factum of rash and negligent driving by him. Further, relying upon the judgment of Mahila Dhanvanti and Ors Vs. Phulwant Mahendra Singh, Miscellaneous Appeal no.239/1992 decided by Hon'ble Madhya Pradesh High Court on 29.07.1993 in which it is held as under: -
"The plaintiff can prove the accident but cannot prove how it happened to establish negligence. This hardship is to be avoided by applying the principle of res ipsa loquitur. The general purport of the words res ipsa Pankaj Kashyap & Anr. Vs. Pradeep Kumar & Ors.MACT no. 321/18 9
loquitur is that the accident speaks for itself or tells its own story".
Thus, Claims Tribunal while dealing with the law of torts in motor accident cases applies the principle of "res ipsa loquitur". Considering all this, it stands proved that accident in question occurred due to rash and negligent driving of offending vehicle by the respondent no. 1 and victim suffered fatal injuries in the said accident. Issue no. 1 is accordingly decided in favour of petitioners and against the respondents.
ISSUE NO. 2Whether petitioners are entitled to compensation, if yes, what amount and from whom of respondents? OPP
11. It is not disputed that the petitioners are sons of deceased, therefore, petitioners who are sons of deceased are well within their rights to claim compensation.
NOW COMING TO THE QUANTUM OF COMPENSATION
12. It is matter of record that petitioners are son of deceased and being sons, who are major in age and earning independently. So, they are not entitled to the compensation on account of loss of dependency. In terms of Sarla Verma Vs. DTC 2009 ACJ 1298 SC, as such there is no dependent upon the deceased and the petitioners therefore would be entitled to the compensation for loss of estate only. In Keith Rowe Vs. Prashant Sagar & Ors MAC. APP. No. 601 / 2007 decided on 15 January-2010 the Hon'ble High Court has summarized the law with respect to such cases where LRs is/are not financially dependent upon the deceased as under:
"(i) The law contemplates two categories of damages on the death of a person. The first is the pecuniary loss sustained by the dependent members of his family as a Pankaj Kashyap & Anr. Vs. Pradeep Kumar & Ors.MACT no. 321/18 10
result of such death. The second is the loss caused to the estate of the deceased as a result of such death. ................ In the second category, the action is brought by the legal representatives, on behalf of the estate of the deceased and the compensation, when recovered, forms part of the assets of the estate.
(ii) Where the claim is by the dependents, the basis for award of compensation is the loss of dependency, that is loss of what was contributed by the deceased to such claimants. A conventional amount is awarded towards loss of expectation of life, under the head of loss to estate.
(iii) Where the claim by the legal representatives of the deceased who were not dependents of the deceased, then the basis for award of compensation is the loss to the estate, that is the loss of savings by the deceased. A conventional sum for loss of expectation of life, is added.
(iv) The procedure for determination of loss to estate is broadly the same as the procedure for determination of the loss of dependency. Both involve ascertaining the multiplicand and capitalising it by multiplying it by an appropriate multiplier. But, the significant difference is in the figure arrived at as multiplicand in cases where the claimants who are dependents claim loss of dependency, and in cases where the claimants who are not dependents, claim loss to estate. The annual contribution to the family constitutes the multiplicand in the case of loss of dependency, whereas the annual savings of the deceased becomes the multiplicand in the case of loss to estate. The method of selection of multiplier is however the same in both cases." Though the quantum of savings will vary from person to person, there is a need to standardise the quantum of savings for determining the loss to estate (where the claimants are not dependants) in the absence of specific evidence to the contrary. The quantum of savings can be taken as one-third of the income of the deceased where the spouses are having a common establishment and one-fourth where the spouses are having independent establishments. The above will apply where the family consists of non-dependant spouse/children/parents. Where the claimants are non-dependant brothers/sisters claiming on behalf of the estate, the savings can be taken as 15 % of the income. The above percentages, one of course, subject to any specific evidence to the contrary led by the claimants."
13. Now coming to the multiplier aspect. There is two petitioners in this matter and as it has already been discussed herein above that petitioners are entitled to compensation on account of loss of estate only. In view of the findings in Keith Rowe Vs. Prashant Sagar & ors. MAC appeal no.601 of 2007 decided on Pankaj Kashyap & Anr. Vs. Pradeep Kumar & Ors.
MACT no. 321/18 1115.01.2010, it has also been settled that multiplier would however remain same and it is only the head under which the petitioners would likely to succeed would change. Now coming to the calculation part of compensation.
14. To prove the income of victim, petitioners have examined PW2 Ms. Neena Nangla, Inspector, Income Tax Department, BC Bazar Ambala Cant, Haryana, who filed the summoned record collectively Ex. PW2/1 i.e. ITR filed by victim for the assessment year 2015-16, 2016-17 and 2017-18. As per assessment year 2017-18, the total income after deduction tax is Rs. 3,36,400/-. Being the witness of record, nothing material has come on record to disbelieve testimony of PW2. Accordingly, earnings of victim are taken to be Rs. 3,36,400/- per annum at the time of accident.
15. Further, as per the Keith Rowe Vs. Prashant Sagar & ors. MAC appeal no.601 of 2007 decided on 15.01.2010 judgement where the claimants are non- dependent spouse/childeren/ parents claiming on behalf of the estate, the saving can be taken 1/4th where the non-dependents are having independent establishments. PW1/ petitioner no. 1 in his cross examination stated that he is running a shop of surgical items under the name and style M/s M.M. Scientific and the owner of the said firm is his younger brother (petitioner no. 2). He has further stated that the firm which was being run by his deceased father is not in operation / closed. This shows that both the petitioners being the sons of the victim are having independent establishment / business which is different from that of their father / victim. Deduction is taken accordingly as 1/4th. Also, considering the age of victim as 57 years in age so 10% future prospects is added in his income and being 57 of age, a multiplier of 9 is applied, counting in this way, loss to estate comes to Rs. 8,32,590/- (3,70,040x1/4x9) and after adding Rs. 20,000/- towards funeral expenses and Rs. 20,000/- towards loss of love and affection, it comes to Rs.8,72,590/- and after adding 58 months & 18 days interest @ 9% per annum i.e. Rs. 3,83,503.30, a total Pankaj Kashyap & Anr. Vs. Pradeep Kumar & Ors.
MACT no. 321/18 12compensation comes to Rs.12,56,093.30 rounded off to Rs.12,57,000/-, details of which are mentioned in the above proforma.
Now coming to the aspect as to which of the respondent is liable to pay compensation to the petitioners.
16. As stated above, the offending vehicle was duly insured at the time of accident with respondent no. 3 / Ins. Co. and it is matter of record that no witness has been examined by any of the respondents, particularly by respondent no. 3 / Ins. Co. nor any document has been filed by respondent no. 3 / Insurance Co. to show its statutory defence. Further, the allegations levelled in the written statement howsoever strong that may be, cannot take place of proof particularly when respondents despite having raised the issue has not led any positive evidence on this aspect. In view of the above and since the respondent no.3 / Ins. Co. has failed to establish any statutory defence, it is liable to indemnify the owner / insured and to pay compensation to the petitioners.
This issue is therefore decided in favour of petitioners and against the respondents by holding that respondent no. 3/Ins. Co. is liable to pay the amount of compensation to the petitioners.
ISSUE No. 3 (RELIEF).
17. Petition is allowed and keeping in view of documents available and proved on record, a compensation of Rs. 12,57,000/-, is awarded to the petitioners, details of which are mentioned in the above proforma.
18. Respondent no. 3 / Ins. Co. is accordingly directed to pay a compensation of Rs. 12,57,000/- to the petitioners within 30 days from today failing which it would pay further interest @ 9% per annum on the amount of Rs. 8,72,590/- to the petitioners from the date of award till its realization. Interim amount if any paid to the petitioners, be deducted from this amount.
Pankaj Kashyap & Anr. Vs. Pradeep Kumar & Ors.
MACT no. 321/18 13DISBURSEMENT
19. Statement of petitioners under clause 29 of MCTAP recorded vide order dated 17.03.2023. Petitioners are maintaining their following MACT SB account :-
1. Petitioner no. 1 has MACT SB account no. 38835057015 with SBI Branch Saha Ambala
2. Petitioner no. 2 has MACT SB account no. 38927718712 SBI Branch Ambala Cant.
20. Considering circumstances of petitioners and after consulting ld. counsel for petitioners, the compensation amount is equally awarded between th petitioners. Out of their share, 10% amount each would be released to them through their MACT SB account and their 90% remaining amount would be kept in MACAD annuity to be released to them in a phased manner i.e. Rs. 10,000/- each directly credited in their MACT SB account on monthly basis.
21. The petitioners would be withdrawing this amount only through withdrawal slip and by no other mode or digital mode i.e. Debit card / Credit card /ATM/NEFT/RTGS/letter etc.
22. The salient features as prescribed in the judgment in Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors. FAO No. 842/2003 decided on 08.01.2021 are to be applied:-
(a) The Bank shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the claimant(s) i.e. the savings bank account(s) of the claimant(s) shall be an individual savings bank account(s) and not a joint account(s).
(b) The original fixed deposit shall be retained by the bank in safe custody.
However, the statement containing FDR number, FDR amount, date of maturity and maturity amount shall be furnished by bank to the claimant(s).
(c) The 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 amounts of the FDR(s) be credited by Electronic Clearing Pankaj Kashyap & Anr. Vs. Pradeep Kumar & Ors.
MACT no. 321/18 14System (ECS) in the savings bank account of the claimant(s) near the place of their residence.
(e) No loan, advance, withdrawal or pre-mature discharge be allowed on the fixed deposits without permission of the Court.
(f) The concerned bank shall not issue any cheque book and/or debit card to claimant(s). However, in case the debit card and/or cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount. The bank shall debit card(s) freeze the account of the claimant(s) so that no debit card be issued in respect of the account of the claimant(s) from any other branch of the bank.
(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 date fixed for compliance.
(h) It is clarified that the endorsement made by the bank along with the duly signed and stamped by the bank official on the passbook(s) of the claimant(s) is sufficient compliance of clause above.
23. Respondent no. 3 / Ins. Co. is directed to deposit amount of compensation, as stated above, with this tribunal within 30 days, with advance notice to petitioners.
File be consigned to record room.
ANNOUNCED IN THE OPEN (EKTA GAUBA MANN)
COURT ON 28.03.2023 PO:MACT-01, NORTH, ROHINI, DELHI
Pankaj Kashyap & Anr. Vs. Pradeep Kumar & Ors.
MACT no. 321/18 15