Delhi District Court
Prem Lata & Ors. vs . Rajbir & Ors. on 26 February, 2020
MORE THAN FIVE YEARS OLD & SR. CITIZEN CASE
IN THE COURT OF SH. M. K. NAGPAL
PRESIDING OFFICER : MOTOR ACCIDENT CLAIMS TRIBUNAL
PATIALA HOUSE COURTS, NEW DELHI
IN THE MATTER OF:
Prem Lata & Ors. Vs. Rajbir & Ors.
MACP No. 400/2014
1. Smt. Prem Lata (wife)
W/o. Late Sh. Ajit Kumar
2. Baby Jyotshana Singh (minor daughter)
D/o. Late Sh. Ajit Kumar
3. Sh. Bisheshwar Singh (father)
S/o. Late Sh. Gopi Singh
4. Smt. Kismato Devi (mother)
W/o. Sh. Bisheshwar Singh
P-2 being minor represented through
her mother and natural guardian Smt. Prem Lata/P-1.
Office of P-1: R.K.G. Library, Supreme Court of India
Tilak Marg, New Delhi.
All R/o. 6/61-C, Block 6, Double Story,
Moti Nagar, New Delhi-15.
Also at:-
Village Dharupur, Post Dharupur, PS Bikaram Gang,
District Rohtash, Bihar.
......Petitioners/claimants
Versus
1. Sh. Rajbir (driver of truck)
S/o. Sh. Bhuni
R/o. Shop No.1, Lal Quan,
MACP No. 400/2014 Page no.1 of 29
District Ghaziabad, U.P.
2. Sh. Narender Singh (owner of truck)
S/o. Sh. Jagmal
R/o. Village Khanak The Tosham,
District Bhiwani, Hayana.
3. M/s. HDFC Ergo General (insurer of truck)
Insurance Co. Ltd.
C-25, Sector 62, Stellar Park, 5th Floor,
Tower-1, Noida-201301, U.P.
4. Sh. Amar Anil Singh (driver of car)
S/o. Sh. SRS Bhuneshwar
R/o. Village Renia, Post Office Telari,
District Rohtas Sasaram, Bihar.
5. Sh. Ajay Kumar Singh (owner of car)
S/o. Sh. Dadan Singh
R/o. 6/61, Moti Nagar,
New Delhi.
6. M/s National Insurance Company Ltd. (insurer of car)
At 124, Jeevan Bharti Building
Connaught Place, New Delhi-11001.
.....Respondents
Date of filing of claim petition : 19.03.2014 Date of framing of issues : 23.09.2019 Date of concluding arguments : 22.02.2020 Date of decision : 26.02.2020 AWARD/JUDGMENT
1. The claim for compensation raised in this petition relates to the death of one Sh. Ajit Kumar, a particising lawyer of the Hon'ble Supreme Court, who was traveling in a TATA Indica Manza car bearing registration no. DL-2CQ-7813 with his friend's family and was on way to Delhi from Sasaram, Bihar. The above car met with an accident on 28.10.2012, at around 03.15 am, at Yamuna Expressway, Chenen No. 70 + 900 R.H.S., within the jurisdiction of PS Naujhil, District Mathura, U.P. MACP No. 400/2014 Page no.2 of 29 with a truck bearing registration no. HR-55C-2546 loaded with iron garters, which was being plied ahead of the said car. It is case of the petitioners that driver of above truck suddenly applied brakes and due to this, the above car forcefully collided with the truck on its backside resulting into multiple injuries to occupants of the said car. It has been alleged that the deceased Ajit Kumar had suffered injuries all over his body, including head injury and multiple fractures, and he was removed to Kailash Hospital at Greater Noida and got admitted there. However, he is stated to have expired in the said hospital on 01.11.2012 as a result of the above injuries.
2. This claim petition was filed by petitioners on 19.03.2014 before this tribunal against only three respondents and besides, Sh. Rajbir and Sh. Narender impleaded as R-1 & R-2 being driver and owner of the above truck respectively, insurance company of the said truck namely L & T General Insurance Co. Ltd. was also impleaded as R-3. Record reflects that though, appearance on behalf of R-3/Insurance Co. was duly filed, but notices sent to R-1 & R-2 could not be served as their given addresses were either found incomplete or the same could not be traced out and repeated directions were given to the petitioners to furnish fresh addresses of R-1 & R-2 and to take fresh steps for service of said respondents. However, despite the above, the petitioners failed to comply with such directions of this tribunal and even failed to deposit the costs imposed for their failure to do the same and hence, vide order dated 06.04.2015, this tribunal had directed that the petitioners shall not entitled to any interest on the award, if any, from the date of filing of petition till framing of issues in the matter.
3. On perusal of records, it has further been observed that an application under Order 1 Rule 10 CPC was also filed on behalf of L & T General Insurance Co. Ltd. (R-3 at that time) for impleading legal heirs of MACP No. 400/2014 Page no.3 of 29 deceased driver as well as owner and insurance company of the car in which the deceased was traveling on the ground that it was a case of composite negligence as admittedly driver of the car had hit the offending truck from behind and he himself also expired in the above accident. This application was allowed by this tribunal on the above date itself, i.e. 06.04.2015, and legal heirs of driver of above car and owner as well as insurance company of said car were directed to be impleaded as respondents and steps were directed to be taken for service of the newly impleaded respondents, besides filing fresh memo of parties and service of the existing R-1 & R-2 in the matter as they were yet to be served. However, the petitioners again failed to take any steps for compliance of the above directions of this tribunal and even defaulted in appearance in the matter with the result that this claim petition was subsequently directed to be adjourned sine-die vide order dated 17.08.2015.
4. The record further reflects that an application seeking revival of the petition was then moved on behalf of P-1 & P-2 after a long gap of around three years and this application was taken up by this tribunal on 07.06.2018 and notice thereof was directed to be issued to all the respondents and P-3 & P-4 also, i.e. parents of the deceased. It was also brought to the notice of this tribunal by Ld. Counsel for R-3 during the course of proceedings conducted on above application on 04.10.2018 that the said L & T General Insurance Co. now stands merged with HDFC Ergo General Insurance Co. and details of the new company were then directed to be furnished to Ld. Counsel for the petitioners, who was directed to move an appropriate application seeking amendment of the memo of parties or petition, as the case may be. An amended memo of parties on behalf of the petitioners impleading HDFC Ergo General Insurance Co. as R-3, legal heirs of driver of car Late Sh. Shiv Mangal as R-4, Sh. Ajay Kumar, owner of the said car as R-5 and insurer of the car MACP No. 400/2014 Page no.4 of 29 namely National Insurance Co. Ltd. as R-6 was also subsequently filed on record by Ld. Counsel for the petitioners. Further, during the course of proceedings on the above application, one Special Power of Attorney (SPA) executed by P-3 & P-4 in favour of one Sh. Harender Singh, along one vakalatnama executed by said attorney were also filed on record.
5. As already stated above, R-1 & R-2 were both yet to be served in the main petition itself and as their addresses could not be found or were reported to be incomplete, they both were directed to be served by way of publication in the Hindi National Daily 'Veer Arjun' and the publication is found to have been effected on 12.07.2019 for 16.07.2019 and since none had appeared on their behalf on this date, they both were proceeded exparte in the matter.
6. However, though appearance in the proceedings was filed on behalf of brother/legal heir of deceased driver Shiv Mangal impleaded as R-4, and also by the newly impleaded R-5 & R-6, and brother of deceased R-4 was directed to furnish complete details of all the legal heirs of said respondent, but in the meanwhile, another application under Order 1 Rule 10 CPC was moved on behalf of the petitioners seeking impleadment of one Amar Anil Singh as R-4 being driver of the said car in place of above Shiv Mangal on the ground that above said car was actually being driven by him and not by Late Sh. Shiv Mangal. Some documents in support of the said application and statements made therein were also filed on record, which included certain documents of the criminal case registered about the accident and certified copies of a judgment dated 12.12.2018 pronounced by Ld. PO-MACT, North-West District, Rohini Courts, New Delhi in MACT No. 449828/16 filed in respect of death of above Shiv Mangal in the same accident and also some documents pertaining to settlement of Case no.76608/16 qua injured Ajay Kumar (R-5 herein), Case no. 77051/16 in respect of his wife Smt. Vinita MACP No. 400/2014 Page no.5 of 29 and Case no.76607/16 in respect of their minor child Master Sher Singh before the Ld. P.O., MACT-02 (West), Tis Hazari Courts, Delhi, on the basis of settlement arrived in the Mediation Centre, Tis Hazari Courts, Delhi. On the basis of replies filed on behalf of R-3 HDFC Ergo General Insurance Co. as well as proposed R-4 namely Amar Anil Singh, to whom also notice of above application was issued, and on no objection of the other contesting respondents, the said application was allowed vide a detailed order dated 09.09.2019 passed by this tribunal and in place of Late Sh. Shiv Mangal through his legal heirs, the above Amar Anil Singh was permitted to be substituted as R-4 and amended memo of parties to this effect was also taken on record subsequently.
7. It has also been observed by this tribunal now that due to above complexity of facts and frequent developments, no formal order for revival of the claim petition appears to have been passed on the above application moved on behalf of P-1 & P-2, but for all means and purposes the said application shall be deemed to have been allowed and the petition restored back to its original number and position by the said order dated 09.09.2019 itself as only thereafter, the above application under Order 1 Rule 10 CPC moved on behalf of the petitioners could have been taken up for disposal and allowed.
8. As already stated above, appearance on behalf of Insurance Co. of the truck namely L & T General Insurance Co., which subsequently stood merged with HDFC Ergo General Insurance Co., was filed long back and even their written statement was filed on record in the year 2014 itself and written statements/replies of the newly impleaded R-3 Amar Anil Singh, R-5 Ajay Kumar and R-6 National Insurance Co. Ltd. were also filed subsequent to their impleadment as a party in this case. R-1 & R-2, however, could never be served with notice of the petition and were ultimately proceeded exparte, as already discussed above.
MACP No. 400/2014 Page no.6 of 29
9. L & T General Insurance Co. Ltd. (the then R-3), i.e insurance company of the offending truck, had admitted the issuance of an insurance policy by them in respect of the offending truck in name of R-2, but they had also submitted in their reply that their liability in the present case was only as per terms and conditions of the said policy. They had also submitted therein that the above accident took place due to rash and negligent driving of driver of the car in which the deceased was traveling and hence, driver, owner and insurer of the said car were necessary parties to this claim petition. As already stated above, they all were also subsequently impleaded on record as parties in the present case formally. It is necessary to mention here that after substitution of HDFC Ergo General Insurance Co. in place of L & T General Insurance Co. Ltd. as R-3, no fresh reply to the claim petition had been filed on record.
10. R-4, i.e. Amar Anil Singh, being driver of the said car in his reply had claimed that the above accident took place due to gross negligence of driver of the offending truck and not due to rash or negligent driving of the car by him. In the said reply, he had specifically admitted that he was driving the said car and had also claimed that the driver Shiv Mangal of said car was sitting besides him on the front seat with other occupants of the car, including the deceased Ajit Kumar, R-5 Ajay Kumar Singh and family members of R-5. He further stated therein that the above accident took place only due to sudden application of brakes of the offending truck by its driver in an attempt to change the lane. He also stated in his reply that R-1 was driving the offending truck at a high speed, in a zig-zag and negligent manner.
11. R-5, i.e. Ajay Kumar Singh, in his reply to the petition had submitted that he himself was victim having suffered injuries in the above accident and hence, he was wrongly impleaded as a respondent in this MACP No. 400/2014 Page no.7 of 29 case. He also stated therein that claims for compensation raised qua the injuries suffered by him, his wife Smt. Vinita and their minor son Master Sher Singh stood already settled with the insurance company of offending truck, i.e. L & T General Insurance Co. Ltd., for a sum of Rs.6,00,000/-, Rs.3,00,000/- and Rs.1,05,000/- respectively before the Ld. P.O. MACT-02 (West), Tis Hazari Courts, Delhi, on the basis of settlements arrived at in the Mediation Centre, Tis Hazari Courts, Delhi and hence, insurance company of the offending truck was now not justified in their attempt to shift liability for the said accident upon driver, owner and insurer of the above car. He had also tendered on record certified copies of the above settlement/proceedings alongwith his above reply.
12. R-6/National Insurance Co. Ltd. in its reply had admitted the fact that on the date of accident, above car was insured with them, but it is also their case that their liability was only as per the terms and conditions of policy issued by them. Further, it had also submitted in the said reply that they were not liable to pay compensation in the present case as the offending vehicle was the above truck and not the car insured by them.
13. On the basis of pleadings of the parties, this tribunal had framed the following issues on 23.09.2019 for disposal of the case:-
1. Whether the deceased Sh. Ajit Kumar sustained fatal injuries in the accident which occurred on 28.10.2012 at about 3.15 AM, Yamuna Expressway (Agra-Greater Noida Expressway), Chenen No. 74+900 R.H.S., PS Naujhil, District Mathura, U.P. between the truck bearing No. HR-55C-2546 being driven by R-1, owned by R-2 and insured with R-3 and the car bearing registration No. DL-2CQ-7813 driven by R-4 (as per the amended memo of parties), owned by R-5 and insured with R-6? OPP.
2 (a). Whether the above accident took place due to rash and negligent driving of R-1 ? (OPP).
or 2 (b). Whether the above accident took place due to rash and negligent driving of R-4 or due to contributory negligence of R-1 MACP No. 400/2014 Page no.8 of 29 and R-4 and its proportion ? (OPR3).
3. Whether the petitioners are entitled for compensation? If so, to what amount and from whom?
4. Relief.
14. I have heard the arguments advanced by Sh. Madhur Bhushan, Ld. Counsel for the petitioners, Ms. Manu Kushwaha, Ld. Advocate appearing on behalf of Sh. M.P. Shahi, Ld. Counsel for R-3, Sh. Vikas Rai, Ld. Counsel for R-4, Sh.Vipin Tiwari, Ld. Counsel for R-5 and Sh. Dwapayan Gupta, Ld. Counsel for R-6. However, none has turned up on behalf of R-1 & R-2 to address any arguments. I have also carefully perused entire records of the case. My findings on the above issues are as under:-
15. ISSUE NO. 1As is clear from the language of this issue, the petitioners under this issue have only to prove that death of deceased Ajit Kumar had taken place in the above accident between the truck being driven by R-1, owned by R-2 and insured with R-3 and the above car in which deceased was traveling, which was being driven by R-4, owned by R-5 and insured with R-6. None of these respondents in their replies/written statements had denied the above facts and they all had rather admitted the factum of above accident between the two vehicles as well as death of deceased Ajit Kumar of this case in the said accident.
Further, as also discussed above, R-4 & R-5 in their respective replies had even supported the case of petitioners on this issue to the extent that the said accident took place only due to fault and negligence of R-1 being driver of the offending truck. Again, the petitioners are also found to have tendered in evidence and relied upon, through depositions contained in affidavit Ex.PW1/A of P-1 Smt. Prem Lata/PW1 containing her examination-in-chief, the attested/certified MACP No. 400/2014 Page no.9 of 29 copies of certain documents of the criminal case registered about this accident and these include a copy of FIR of said case as Mark PW1/7, a copy of charge-sheet of the case along with site plan of place of accident as Ex.PW1/16 and postmortem report of the deceased conducted in Kailash Hospital, Greater Nodia as Ex.PW1/3. The contents of these documents also duly substantiate the other evidence led on record with regard to above facts. Besides the above, R-4 Amar Anil Singh had also been examined on record by the petitioners in support of their claim being an eye-witness of the said accident and even he had made specific depositions to the same effect.
Hence, in view of the above, it stands proved on record by the petitioners that the deceased Ajit Kumar succumbed to injuries suffered in the above accident, which took place between the above said two vehicles on 28.10.2012, at around 03.15 am, at the above said place being on the Yamuna Expressway, U.P. Therefore, this issue is accordingly decided in favour of the petitioners and against respondents.
16. ISSUE Nos. 2 (a) & (b) It is well settled that the procedure followed for proceedings conducted by an accident tribunal is similar to that followed by a civil court and in civil matters the facts are required to be established by preponderance of probabilities only and not by strict rules of evidence or beyond reasonable doubts, as are required in a criminal prosecution. The burden of proof in a civil case is never as heavy as that is required in a criminal case, but in a claim petition under the M.V. Act, this burden is infact even lesser than that in a civil case. Reference in this regard can be made to the prepositions of law laid down by the Hon'ble Supreme Court in the case of Bimla Devi and others Vs. Himachal Road Transport Corporation and others, reported in (2009) 13 SC 530, MACP No. 400/2014 Page no.10 of 29 which were reiterated in the subsequent judgment in the case of Parmeshwari Vs. Amir Chand and others 2011 (1) SCR 1096(Civil Appeal No.1082 of 2011) and also recently in another case Mangla Ram Vs. Oriental Insurance Co. Ltd. & Ors., 2018 Law Suit (SC) 303 etc. In these issues, the petitioners are required to prove as to who was responsible for the said accident, i.e. as to whether the said accident took place due to rash and negligent driving of the above truck by R-1, or it took place due to rash and negligent driving of R-4, who was driving the above car, or both the drivers of these two vehicles were responsible for the said accident and also the proportion or ratio of their contribution in the said accident, if any.
It has been observed that the petitioners had examined on record a total number of two witnesses in support their case and besides, P-1 Smt. Prem Lata who had stepped into the witness box as PW1, the other witness examined on record is R-4 Amar Anil Singh as PW2, being an eye-witness of the accident. Admittedly, P-1/PW1 herself is not an eye-witness of the above accident and hence, it is the testimony of PW2 only which matters for disposal of these issues, besides the other documentary evidence led on record.
PW2 during his examination in chief had specifically stated on record that he was driving the above said car bearing no. DL-2CQ- 7813 with the deceased Ajit Kumar, driver Shiv Mangal and R-5 Ajay Kumar Singh with his family traveling therein. He also stated on record that the said car belonged to R-5 and when they reached at Yamuna Expressway within the jurisdiction of PS Naujhil, District Mathura, U.P., then all of a sudden a long truck bearing registration no. HR-55C-2546, which was being driven by above Rajbir at a very high speed, zig zag & negligent manner and was loaded with iron garters, applied sudden brakes without any signal and tried to change the lane of road. He had MACP No. 400/2014 Page no.11 of 29 also stated that due to above, his car had forcefully collided with said truck and they all suffered serious injuries. He further stated therein that Shiv Mangal was shifted to Mathura District Government Hospital and he himself with the other injured persons was shifted to Kailash Hospital at Greater Noida, but doctors of said hospital could not save the life of Ajit Kumar as he died on 01.11.2012. He further stated on record that even the above driver Shiv Mangal, who was seated besides him, died in Mathura District Government Hospital.
During the course of his cross-examination conducted by Ld. Counsel for R-3 also, PW2 had stated that the above accident took place in early morning and even he himself had suffered injuries on his forehead in the said accident and his MLC was prepared at Kailash Hospital. He had again reiterated during his cross-examination that the above car was being driven by him and not by driver Shiv Mangal as he took over the said car for driving from Shiv Mangal about 2-3 hours before accident as the above driver was feeling sleepy. He denied the suggestion given by Ld. Counsel for R-3 to the effect that driver Shiv Mangal was not holding a valid driving licence, though he was not suggested by Ld. Counsel that this was the reason as to why the witness was claiming himself to be driver of the said vehicle in place of Shiv Mangal. PW2 is also found to have denied the other specific suggestions given by Ld. Counsel for R-3 to the effect that he himself was to be blamed for the said accident as he was feeling sleeping and drowsy; that the said accident took place due to his sole negligence only and further that he had falsely implicated driver of the offending truck as it was not involved in the said accident. As already discussed above, R-1 & R-2 i.e. driver & owner of the offending truck, have not come forward to contest the claim of petitioners and hence, this witness is not found to have been cross examined on their behalf.
MACP No. 400/2014 Page no.12 of 29 Thus, it is observed from the above that PW2 has successfully stood the test of cross-examination in this case and has stood to his version of accident as narrated by him in his examination-in- chief and has, therefore, corroborated the case of petitioners with regard to manner of above accident. There is also no other ground or reason made out before this tribunal as to why this tribunal should discard the testimony of this witness, which appears to be otherwise also trustworthy and convincing.
Moreover, apart from PW2/R-4 Amar Anil Singh being driver of the car, R-5 Ajay Kumar Singh being one of the injured and his wife or minor child, it was only the driver of said truck i.e. R-1 or its helper, who could have in a position to depose about the manner of above said accident being witnesses thereof. However, since R-1 has chosen not to join the proceedings and has not come forward to file any reply to the present claim petition, the entire depositions made by PW2 on record regarding the manner of said accident have to be accepted and acted upon by this tribunal. For failure of R-1 to join this inquiry and to depose on record regarding the manner of accident, an adverse inference is also required to be drawn against R-1 to R-3 on these aspects in view of the law laid down in the case of Cholamandalam M.S. General Insurance Company Ltd. Vs. Kamlesh, reported in 2009 (3) AD (Delhi) 310.
Further, as already stated, the petitioners/PW1 has also tendered on record, inter-alia, copies of FIR and charge-sheet with certain other documents of the above criminal case registered about this accident as Mark PW1/7 and Ex.PW1/16 respectively. The above FIR is found to have been registered on the basis of rukka sent by one Bhule Singh, In-charge, Route Patrolling Officer, Sector 3, Jay Pee Infratech, Yamuna Expressway and the rukka itself, it is found recorded that on inquiry conducted at the spot of accident, he came to a conclusion that MACP No. 400/2014 Page no.13 of 29 the above accident took place due to fault of driver of the truck which was loaded with iron garters and though the truck was found stopped at the spot of accident, but its driver managed to flee away. Further, copy of site plan of the place of accident filed as part of the documents of charge- sheet also contains a specific endorsement made by IO to the effect that said accident took place due to fault of driver of the truck as he had suddenly changed his lane from lane no.3 and came in lane no.2 and in the process, it had collided with a car which was going in lane no.2.
Though, a plea of contributory negligence on the part of R-4 was also raised in this case by R-3/Insurance Co. of the truck in its reply and subsequently, on their application moved under Order 1 Rule 10 CPC, the driver, owner and insurer of the said car, i.e R-4, R-5 & R-6 respectively, were formally impleaded as respondents in this case, but as already discussed above, there is no oral or documentary evidence on record to corroborate or substantiate their above plea of contributory negligence. This is an admitted case that the criminal case about this accident was registered against R-1 only and he has already been charge-sheeted in the said case for offences punishable under Sections 279/337/338/427/304A IPC and R-1 himself has not come forward to challenge the facts recorded in FIR or charge-sheet and the conclusions drawn by Investigating Officer (IO) of the criminal case holding him responsible for causing the above said accident.
Apart from all the above, R-5 Ajay Kumar Singh in his reply has also stated on record that he as well as his wife Smt. Vinita and their minor son Sher Singh had also suffered injuries in the same accident, besides fatal injuries suffered by the above driver Shiv Mangal and the deceased Ajit Kumar of this case, and their claims were settled by the previous Insurance Co. of truck namely L & T General Insurance Co. in the Mediation Centre, Tis Hazari Courts, Delhi and ultimately, before the MACP No. 400/2014 Page no.14 of 29 Ld. P.O. MACT-02 (West), Tis Hazari Courts, Delhi on the basis of said settlements. He had even tendered on record certified copies of the proceedings conducted in the Mediation Centre on 20.02.2018 and the order dated 22.02.2018 of Ld. PO MACT concerned disposing of their above claims. These documents have not been challenged on behalf of R-3/HDFC Ergo General Insurance Co., which had taken over the business of previous insurance company, i.e. L & T General Insurance Company which was insurance company of the offending truck on the date of accident.
Further, the petitioners/P-1 have also tendered and relied upon a certified copy of the judgment dated 12.12.2018 pronounced by Ld. PO-MACT, North-West District, Rohini Courts, New Delhi in MACT No. 449828/16 filed in respect of death of above Shiv Mangal as Mark PW1/17 and it has been observed that in the said petition only the driver, owner and insurance company of offending truck were impleaded as a party and insurance company of the truck at that time was L & T General Insurance Co. Ltd. and an award was also passed against them in the said case for an amount of Rs.15,55,000/- with interest and the insurance company was directed to deposit the above award amount as they failed to prove any violation of the terms and conditions of insurance policy. It is not the case of R-3 that they had challenged the above said award before the Hon'ble High Court as no evidence to this effect is found to have been led in the present matter.
Therefore, in view of the above discussion, this tribunal holds that the oral evidence led on record is duly substantiated by the documentary evidence and it stands proved on record that the above accident was caused only due to rash and negligent driving of the offending truck bearing no. HR-55C-2546, which was being driven by R-1 Rajbir, owned by R-2 Narender Singh and insured with R-3 HDFC Ergo MACP No. 400/2014 Page no.15 of 29 General Insurance Co. Ltd. and R-4 Sh. Amar Anil Singh was not at all responsible for the said accident in any manner or proportion. The above issues are, therefore, decided accordingly in favour of the petitioners and against the respondents no.1, 2 and 3.
17. ISSUE NO. 3As the rashness and negligence on part of driver of the above offending truck has been satisfactorily proved, the petitioners have become entitled to be compensated for death of deceased in the above accident. However, computation of compensation and liability to pay the same are still required to be decided.
COMPENSATION The compensation to which the petitioners are entitled shall be under the following heads:-
(i) Medical treatment expenses As already discussed above, immediately after the accident, the deceased Ajit Kumar was removed to Kailash Hospital, Greater Noida by the Expressway Authority officials and he expired there during the course of treatment on 01.11.2012. PW1/P-1, i.e. wife of the deceased, is also found to have tendered on record, inter-alia, copies of some original medical bills and payment receipts with regard to expenses borne in respect of treatment of her husband as Ex.PW1/2 (colly). Though, she has claimed in her affidavit that they had spent around Rs.5,30,000/- during treatment of her husband, but the medical bills and payment receipts Ex.PW1/2 (colly) are found to be totaling to a sum of Rs.3,27,505/- and hence, the petitioners are being awarded this amount of Rs.3,27,505/- under this head.
(ii) Loss of dependency As per the depositions made by PW1/P-1 in her above affidavit Ex.PW1/A, her deceased husband was aged around 31 years at MACP No. 400/2014 Page no.16 of 29 the time of accident and his date of birth was 01.03.1981. She is also found to have tendered on record certain documents pertaining to age of her husband, which include copy of his aadhar card as Ex.PW1/1, copy of his election identity card as Ex.PW1/5 and copy of his PAN card as a part of the documents Ex.PW1/18 (colly). Though in the documents Ex. PW1/1 & Ex.PW1/5, date of birth of deceased is not found mentioned, but the same is found specifically recorded as 01.03.1981 in his PAN card and going by this document, his age at the time of accident comes between 31-32 years. Hence, in view of law laid down by the Hon'ble Supreme Court in case of Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr., (2009) 6 SCC 121, which has also been upheld by the Constitutional Bench of the Hon'ble Supreme Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi & Ors. SLP (Civil) No. 25590 of 2014, decided on 31.10.2017, the multiplier of '16' is held applicable for calculating the loss of dependency caused to the petitioners in the present case.
Now coming to earnings of the deceased, it has already been stated above that the deceased was a practising advocate of Hon'ble Supreme Court. P-1/PW1 has also placed on record a copy of Law Degree of the deceased as Ex.PW1/22, copy of his membership card of Supreme Court Bar Association with certificate of membership as Ex.PW1/18 (colly) and copy of his Bar Council enrollment certificate as Ex.PW1/21. As per these documents, the deceased was enrolled as an advocate with Bar Council of Delhi as a member on 08.07.2005 and as a member of the Supreme Court Bar Association w.e.f. 23.08.2006. Thus, he was having a practice as an advocate with the above said association for a period of around 6 years at the time of accident and experience as an advocate for an overall period of around 7 years.
Further, the petitioner/PW1 is also found to have tendered on MACP No. 400/2014 Page no.17 of 29 record by way of additional evidence, one certificate regarding earnings of her deceased husband as Ex.PW1/28 and as per this certificate, the deceased was associated with one Sh. Sanjeev K. Pabbi, Advocate of the Hon'ble Supreme Court and he was being paid an amount of Rs.25,000/- pm as a remuneration. Though the above certificate has not been formally got proved by summoning the above Advocate in evidence, but this tribunal can see that earnings or remuneration shown in this certificate for an advocate enrolled with Bar Association of the highest court of this country and having a standing of around 6-7 years are not unreasonable or unjustified. Hence, claim of the petitioners regarding earnings of the deceased being Rs.25,000/- pm at the time of accident is being accepted and thus, the annual earnings of deceased are taken as Rs.3,00,000/-
In view of the settled law on subject, only the tax liability, if any, of the deceased is to be reduced from his above annual earnings as his 'income' means the actual income less than the tax paid, as was also approved in the case of Pranay Sethi (Supra). As per the income tax rates prevailing at the time of accident, an amount of Rs.10,300/- is liable to be deducted as income tax liability of deceased from his above annual earnings. Hence, the net annual earnings of deceased for the computation of loss of dependency come to Rs.2,89,700/- (Rs.3,00,000/-
- Rs.10,300/-).
This petition has been filed by total four claimants, i.e. wife (P-1), minor daughter (P-2), father (P-3) and mother (P-4) of the deceased. The date of birth of P-2 as stated in the petition and also shown in her identity documents, i.e. her aadhar card Ex.PW1/24 and birth certificate Ex.PW1/20, is 12.02.2013 and thus, she actually is found to have been born after the accident. As per the marriage card Ex.PW1/19, marriage between deceased and P-1 was performed on MACP No. 400/2014 Page no.18 of 29 24.02.2012 and thus, the accident took place just after around 8 months from their marriage and P-2 was in womb of her mother at that time at an advance stage of pregnancy and has to be treated as a dependent. Though, it has also been brought on record that subsequent to the above accident, P-1 Smt. Prem Lata has been given the job of an assistant librarian in the office of Supreme Court Bar Association Library, but admittedly she was dependent upon her deceased husband on the day of accident and has got the above job only on compassionate grounds. Hence, her dependency upon deceased cannot be permitted to be questioned. As far as P-2 & P-4 are concerned, their dependency upon deceased has not been challenged from the side of respondents.
However, it is the contention of Ld. Counsel for R-3 that father of deceased i.e. P-3 is not to be treated as a dependent upon the deceased in this case in view of the law already discussed. On this aspect, it has been observed by this tribunal that in copy of aadhar card of P-3 filed on record as a part of documents Ex.PW1/8 (colly), his date of birth is found recorded as 01.03.1937 and hence, as per this document, his age at the time of accident comes to around 75½ years. Copy of ration card of family of deceased is also found placed on record as Mark PW1/6 and as per this document, the family consisted of only the deceased and his parents and since marriage between the deceased and P-1 took place only few months before the accident, this tribunal can have a reason to infer that name of P-1 was yet not got recorded in the above ration card. Though, it is otherwise settled that father of a deceased is not ordinarily to be treated as a dependent, but it is not an absolute rule and in an appropriate case, even father can be treated as a dependent if some evidence to this effect is available on record.
As already stated above, father of deceased i.e. P-3 is very old and was aged around 75½ years at the time of accident and as per MACP No. 400/2014 Page no.19 of 29 the above ration card, he appears to be not having any other child to maintain or look after him and even if he might be having some son or daughter, but atleast it can be said that nobody else was residing with him and P-4 at the relevant time. It is also a matter of record that they both are residing at their native village at Dharupur, District Rohtas, Bihar. Hence, in view of the above facts, even P-3 is being treated as a dependent and therefore, only 1/4th of earnings of deceased shall be deducted towards his personal and living expenses. Further, in view of the law laid down in the case of Pranay Sethi & Ors. (Supra), the petitioners are also held entitled to addition of 40% of the above amount of his earnings towards future prospects as he was below 40 years of age at the time of accident.
Thus, the loss of dependency qua the deceased Ajit Kumar comes to Rs.48,66,960/- (Rs.2,89,700/- X 140/100 X 3/4 X 16) and the said amount is being awarded to the petitioners under this head.
(iii) COMPENSATION UNDER NON-PECUNIARY HEADS In terms of the propositions laid down by the Hon'ble Supreme Court in case of Pranay Sethi (Supra), the petitioners are also held entitled to amounts of Rs. 15,000/- each under the heads of loss of estate and funeral expenses. Further, in view of the subsequent judgment of the Hon'ble Supreme Court in the case of Magma General Insurance Co. Ltd. Vs. Nanu Ram @ Chuhru Ram & Ors., 2018 SCC OnLine SC 1546, which has been consistently followed by the Hon'ble High Court of Delhi in many cases including the cases of Sangram Pal & Ors. vs. Furkan Ansari & Ors, (2019) 08 DEL CK 0174 decided on 21.08.2019 and in MACA No.747/2019 titled The Oriental Insurance Co. Ltd. Vs. Harpreet Kaur & Ors. decided on 27.08.2019, each of the petitioners are also awarded Rs.40,000/- towards 'loss of consortium' and Rs.50,000/- towards 'loss of love & affection'.
MACP No. 400/2014 Page no.20 of 29 Hence, the petitioners are also awarded a total sum of Rs. 3,90,000/- (Rs.15,000 + 15,000 + 40,000 X 4 + 50,000 X 4) under this head.
18. ISSUE NO.4/RELIEF The petitioners are thus awarded a sum of Rs.55,84,465/- (Rupees Fifty Five Lacs Eighty Four Thousand Four Hundred and Sixty Five only) (Rs.3,27,505 + 48,66,960 + 3,90,000/-), along with interest. However, it is directed that the amount of interim award, if any, and interest in terms of the order dated 06.04.2015 from the date of filing of petition till framing of issues, i.e. from 19.03.2014 till 23.09.2019, or interest for any other suspended period in view of any other order, shall be liable to be excluded from the above amount and calculations of compensation.
19. APPORTIONMENT Out of the total amount of compensation, 50% is being awarded to P-1/wife, 20% each is being awarded to P-2/daughter and P- 4/mother and remaining 10% is being awarded to P-3/father, which shall include their shares granted under the heads of 'loss of consortium' and 'loss of love and affection'.
20. RELEASE Out of share of P-1, only 10% amount is directed to be released in her saving bank account bearing no. 38639541502 being maintained at State Bank of India, Moti Nagar Branch, New Delhi having IFSC Code No. SBIN0001277 and remaining 90% amount is directed to be kept with UCO Bank, Patiala House Court, New Delhi in the Motor Accident Claims Annuity Deposit (MACAD) in the form of 250 monthly fixed deposit receipts (FDRs) payable in equal amounts for a period of 1 to 250 months in succession, as per the scheme formulated by the Hon'ble Delhi High Court vide order dated 01.05.2018 in FAO No. MACP No. 400/2014 Page no.21 of 29 842/2003, titled as Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors. and as implemented vide subsequent order dated 07.12.2018 passed in the said case.
Entire share of P-2 shall be kept in an FDR for the period till she attains the age of majority. However, the monthly interest thereon shall be released in the above bank account of her mother/P-1 in order to meet her educational and other expenses and amount of the said FDR on maturity be released in her individual bank account bearing no. 38683450122 being maintained at State Bank of India, Bikramganj, Bihar having IFSC Code No. SBIN0003616.
Out of share of P-3, 10% amount is directed to be released in his saving bank account bearing no.73480100101232 being maintained at Madhya Bihar Gramin Bank, Bikramganj, Bihar having IFSC Code No. PUNB0MBGB06 and remaining 90% amount is directed to be kept with UCO Bank, Patiala House Court, New Delhi in the MACAD in the form of 50 monthly FDRs payable in equal amounts for a period of 1 to 50 months in succession, as per the above scheme and order dated 07.12.2018. The amount of FDRs on maturity would also be released in his above said account.
Out of share of P-4, 10% amount is directed to be released in her saving bank account bearing no. 73480100187612 being maintained at Madhya Bihar Gramin Bank, Bikramganj, Bihar having IFSC Code No. PUNB0MBGB06 and remaining 90% amount is directed to be kept with UCO Bank, Patiala House Court, New Delhi in the MACAD in the form of 100 monthly FDRs payable in equal amounts for a period of 1 to 100 months in succession, as per the above scheme and order dated 07.12.2018. The amount of FDRs on maturity would also be released in her above said account.
Petitioners/claimants shall be at liberty to withdraw and utilize MACP No. 400/2014 Page no.22 of 29 the amounts released in their above accounts through withdrawal forms or biometric authentication.
To facilitate deposits in the above scheme and disbursement of the awarded amount, petitioners shall also open savings bank accounts in the UCO Bank, Patiala House Court, New Delhi, if not opened earlier.
The above payment and disbursement to the petitioners are, however, subject to addition of future interest till deposits proportionately and also deduction of proportionate tax on the interest amount or amount of interim award, if any, to/from her above shares.
The bank (s) shall not permit any joint name to be added in the above savings bank account or MACAD scheme account of the petitioners i.e. the account of petitioners shall be individual account and not a joint account.
The original fixed deposits be retained by the UCO Bank, PHC, New Delhi in safe custody. However, the statement containing FDR numbers, amounts, dates of maturity and maturity amounts shall be furnished by the said bank to the petitioners and the above amounts shall be released in account of petitioners by the Manager, UCO Bank, PHC, ND through RTGS/NEFT/or any other electronic mode.
The maturity amounts of the FDR (s) on monthly basis net of TDS be credited by Electronic Clearing System (ECS) in account of the petitioners.
No loan, advance or withdrawal or pre-mature discharge be allowed on MACAD without permission of the Court.
Petitioners have already produced before this tribunal their original passbooks with necessary separate letters of Bank Manager (s) concerned to the effect that no cheque book (s) shall be issued to their above said accounts and they have also filed copies thereof on record MACP No. 400/2014 Page no.23 of 29 alongwith their aadhar cards and PAN cards. It is directed that the concerned bank (s) shall not to issue any cheque book and/or debit card to the claimants in future also. The Bank Managers shall also ensure that all the terms and conditions contained in Form-VIII of the Modified Claims Tribunal Agreed Procedure, as amended and implemented vide the above order dated 07.12.2018 of the Hon'ble High Court passed in the above said matter, are complied with.
21. LIABILITY Though otherwise, R-1 being the driver of offending truck and principal tort-feasor, R-2 being owner of the said truck and also vicariously liable for the acts of R-1 and R-3 being insurer of the said truck are all held jointly and severally liable to pay the awarded amount of compensation, but since R-3/Insurance Co. has failed to prove any violation of the terms and conditions of insurance policy of offending truck in this case, R-3 is directed to deposit the above award amount with UCO Bank, Patiala House Court Branch, alongwith interest @ 9% per annum from the date of filing of petition, by way of crossed cheques/DDs in names of the petitioners/claimants within 30 days from today failing which it will be liable to pay interest at the rate of 12% per annum for the period of delay. In case even after passage of 90 days from today, R-3 fails to deposit this compensation with proportionate interest, in that event, in light of the judgment of the Hon'ble High Court of Delhi in the case of New India Assurance Company Limited Vs. Kashmiri Lal, 2007 ACJ 688, this compensation shall be recovered by attaching the bank account of the insurance company with a cost of Rs.5,000/-.
R-3 shall inform the claimants and their counsel through registered posts that the cheques of the awarded amounts are being deposited so as to facilitate them to collect their cheques.
22. A copy of this award be given to the parties free of cost.
MACP No. 400/2014 Page no.24 of 29 Ahlmad is directed to send a copy of the award to Ld. Metropolitan Magistrate concerned and Delhi Legal Services Authority in view of Judgment titled as Rajesh Tyagi Vs. Jaibir Singh & Ors. passed in FAO no.842/2003 dated 12.12.2014.
23. Further Nazir is directed to maintain the record in Form VII as per the directions given by the Hon'ble Delhi High Court in the above case on 15.12.2017.
24. The particulars of Form-V of the Modified Claims Tribunal Agreed Procedure, in terms of directions given by the Hon'ble Delhi High Court in the above case on 15.12.2017, are as under:
1. Date of the accident 28.10.2012
2. Date of intimation of the accident by Not given I.O. to the Claims Tribunal.
3. Date of intimation of the accident by I.O.
Not given to the Insurance company.
4. Date of filing of Report u/s.173 Cr.PC Not given before the Metropolitan Magistrate.
5. Date of filing of Details Accident Report Outstation matter (DAR) by IO before Claims Tribunal.
6. Date of service of DAR on Insurance
-do-
Company
7. Date of service of DAR on claimant(s). -do-
8. Whether DAR was complete in all
-do-
respects?
9. If not, state deficiencies in the DAR -do-
10. Whether the police has verified the
-do-
documents file with DAR?
11. Whether there was any delay or deficiency on the part of the
-do-
Investigating Officer? If so, whether any action/direction warranted?
12. Date of appointment of the Designated Not given Officer by the Insurance Company.
13. Name, address and contact number of
-do-
the Designated Officer of Insurance Co.
MACP No. 400/2014 Page no.25 of 29
14. Whether the Designated Officer of the Insurance Company submitted his Outstation matter report within 30 days of the DAR?
15. Whether the Insurance Company admitted the liability? If so, whether the Designated Officer of the Insurance Legal offer not given Company fairly computed the compensation in accordance with law.
16. Whether there was any delay or deficiencies on the part of the Designated Officer of the Insurance Delay in filing reply Company? If so, whether any action/direction warranted?
17. Date of response of the claimant(s) of Legal offer not given the offer of the Insurance Company.
18. Date of the award 26.02.2020
19. Whether the award was passed with the No consent of the parties?
20. Whether the claimant(s) were directed to open savings bank account(s) near Yes their place of residence?
21. Date of order by which claimant(s) were directed to open savings bank account(s) near his place of residence and produce PAN Card and Adhaar 30.10.2018 Card and the direction to the bank not issue any cheque book/debit card to claimants and make an endorsement to this effect on passbooks.
22. Date on which the claimant(s) produced the passbook of their savings bank 20.01.2020 account near the place of their residence alongwith endorsement, PAN & Adhaar Cards?
23. Permanent Residential Address of the R/o. Office of P-1: R.K.G. Claimant(s) Library, Supreme Court of India, Tilak Marg, New Delhi.
All R/o. 6/61-C, Block 6, Double Story, Moti Nagar, New Delhi-15.
Also at:-
Village Dharupur, Post MACP No. 400/2014 Page no.26 of 29 Dharupur, PS Bikaram Gang, District Rohtash, Bihar.
24. Details of savings bank account (s) of P-1 = A/c No. 38639541502 the claimant(s) and the address of the being maintained at State Bank bank with IFSC Code. of India, Moti Nagar Branch, New Delhi having IFSC Code No. SBIN0001277.
P-2 = A/c No. 38683450122
being maintained at State Bank
of India, Bikramganj, Bihar
having IFSC Code No.
SBIN0003616.
P-3= A/c No. 73480100101232
being maintained at Madhya
Bihar Gramin Bank,
Bikramganj, Bihar having IFSC
Code No. PUNB0MBGB06.
P-4 = A/c no. 73480100187612
being maintained at Madhya
Bihar Gramin Bank,
Bikramganj, Bihar having IFSC
Code No. PUNB0MBGB06.
25. Whether the claimant (s) savings bank
account (s) is near his place of Yes
residence?
26. Whether the claimant(s) were examined
at the time of passing of the award to Yes
ascertain his/their financial condition?
25. File be consigned to Records after necessary formalities. Separate file be prepared for compliance report and be put up on 02.06.2020. Digitally signed by MANOJ MANOJ KUMAR KUMAR NAGPAL Date:
NAGPAL 2020.02.29
16:46:59 +0530
Announced in the open court. (M.K.Nagpal)
on 26.02.2020 PO/MACT, New Delhi
Encl: SUMMARY OF COMPUTATION OF AWARD AMOUNT IN FORM IV-A MACP No. 400/2014 Page no.27 of 29 SUMMARY OF COMPUTATION OF AWARD AMOUNT IN FORM IV-A
1. Date of accident : 28.10.2012
2. Name of the deceased : Sh. Ajit Kumar
3. Age of the deceased : between 31-32 years
4. Occupation of the deceased : Advocate
5. Income of the deceased : Rs.25,000/- pm
6. Name, age and relationship of legal representative of deceased:-
Srl. No. Name Age Relation
(i) Smt. Prem Lata 30 years Wife
(ii) Baby Jyotsna Singh 7 years Daughter
(iii) Sh. Bisheshwar Singh 82 years Father
(iv) Smt. Kismato Devi 79 years Mother
Computation of Compensation
Sr. No. Heads Amount Awarded
7. Annual Income of the deceased Rs. 2,89,700/- pa
(A) after deducting tax
8. Add-Future Prospects (B) Rs. 4,05,580/-
9. Less-Personal expenses of Rs. 1,01,395/-
the deceased (C)
10. Monthly loss of dependency NA
[(A+B) - C = D]
11 Annual loss of dependency (D NA
x 12)
12 Multiplier (E) 16
13 Total loss of dependency (D x Rs. 48,66,960/-
12 x E = F)
14 Medical Expenses (G) Rs. 3,27,505/-
15 Compensation for loss of love Rs. 2,00,000/-
and affection (H)
16 Compensation for loss of Rs. 1,60,000/-
consortium (I)
17 Compensation for loss of Rs.15,000/-
estate (J)
18 Compensation towards funeral Rs.15,000/-
expenses (K)
19 TOTAL COMPENSATION Rs.55,84,465/-
MACP No. 400/2014 Page no.28 of 29
(F + G + H + I + J+K =L)
20 RATE OF INTEREST AWARDED 9% pa from date of filing of
petition till deposit in 30 days
and 12% thereafter.
(interest from date of filing of
petition till date of framing of
issue is being excluded)
21 Interest amount up to the date of Rs.2,14,810.65
award (M)
22 Total amount including interest Rs.57,99,275.65
(L+M) rounded off to
Rs.58,00,000/-
23 Award amount released P-1 = 10% out of her share
P-2 = Nil
P-3 = 10% out of his share
P-4 = 10% out of her share
24 Award amount kept in FDRs P-1 = 90% out of her share
P-2 = Entire share
P-3 = 90% out of his share
P-4 = 90% out of her share
25 Mode of disbursement of the Through bank
award amount to claimant(s)
26 Next date for compliance of the 02.06.2020
award
Digitally signed
MANOJ by MANOJ
KUMAR
KUMAR NAGPAL
Date:
NAGPAL 2020.02.29
16:47:11 +0530
(M.K.Nagpal)
PO/MACT, New Delhi
26.02.2020
MACP No. 400/2014 Page no.29 of 29