Delhi District Court
2 vs Sandeep Kumar Gautam on 1 May, 2023
: 1:
IN THE COURT OF SH. NAVEEN KUMAR KASHYAP
ADDITIONAL DISTRICT AND SESSIONS JUDGE
PO MACT (SE), SAKET COURTS : NEW DELHI
MACT No.:701/17
FIR NO: 0575/16
U/s: 279,337,338,304A,427 IPC
PS: Sarhana, Distt Meerut, U.P.
Furkan v. Sandeep Kumar Gautam
CNR No . DLSE01-003807-2017
1. Sh. Furkan
S/o Sarwar (Father of deceased)
2. Smt. Sabetoon
W/o Sh. Furkan (Mother of deceased)
3. Ms. Tabasum
D/o Sh. Furkan (Sister of deceased)
4. Ms. Aayisha
D/o Sh. Furkan (Sister of deceased)
5. Master Amir
D/o Sh. Furkan (brother of deceased)
6. Ms. Mehjabi
D/o Sh. Furkan (Sister of deceased)
7. Ms. Mantasha
D/o Sh. Furkan (Sister of deceased)
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8. Master Sakib
S/o Sh. Furkan (Brother of deceased)
All R/o
House No. P-6, Gali no.8,
Batla House, Jamia Nagar,
New Delhi.
....Claimant/Petitioners
Versus
1. Sandeep Kumar Gautam
R/o H.No. 512, Near Giri Nagar,
Malyana, T.P. Nagar,
Meerut, U.P.
......Driver/Respondent no. 1
2. Mukesh Kumar
S/o Sh. Jai Prakash
R/o H.No. 86, Kaiser Ganj,
Meerut, U.P.
.......Owner/Respondent no. 2
3. United India Insurance Co. Ltd.
7,150, Ground Floor, BBC Complex
Ring Road, Kilokari, Maharani Bagh,
New Delhi-110014.
Also at:
24, White's Road,
Chennai-600014.
.......Insurance Company/Respondent no.3
Date of accident : 14.09.2016
Date of filing of petition : 04.08.2017
Date of Decision : 01.05.2023
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AWARD
"In a case of death, the legal heirs of the claimants cannot
expect a windfall.
Simultaneously, the compensation granted cannot be an apology
for compensation".
1. In this case a claim petition under Section 166(1)
MV Act is filed.
2. Brief facts of the case as per the claim of the
claimants/petitioners are that on 14.09.2016 at about 4 pm,
deceased Shahrukh alongwith Irshad and Abid were standing on
the side of the road near bullet motorcycle bearing no. DEW-
7721, then one offending vehicle bearing no. UP-15AT-3690
(TATA 407) being driven in rash and negligent manner by
respondent no.1 came from Meerut side and hit against stationed
motorcycle bearing no. DEW-7721, due to which deceased
Shahrukh expired on the spot and Abid sustained serious injuries.
Such injured was declared brought dead by the hospital. It is
further claimed that at the time of death, deceased was only 23
years old (although age is not visible in his election I-card which
is filed on record). It is further claimed that he was working as
motor mechanic with Mohd. Tanzeem, M/s. Asian Motors, A-
35/1, Thokar no.6, Abul Fazal Enclave-II, Jamia Nagar, New
Delhi-110025 and was earning Rs.15,000/-p.m.
3. As such, FIR as well as chargesheet u/s
279,337,338,304A, 427 IPC was filed against the R-1 and
accused.
4. It is further stated that such offending vehicle was
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driven by R-1, owned by R-2 and insured with R-3.
5. As per record, R-1 and R-2 as well as R-3/insurance
company contested the present claim.
6. In nutshell, in reply filed by R-1&R-2, it is stated
that vehicle of respondent was parked in front of house of
respondent no.2 at the time of accident and his vehicle is falsely
implicated in this case.. It is further stated that vehicle was duly
insured with R-3/insurance company. It is further stated that such
R-1 had a valid driving license at the time of accident.
7. Further, R-3/insurance company in nutshell stated in
their reply that alleged offending vehicle UP-15AT-3690 is
falsely planted in the present case, in collusion with local police.
It is further stated that deceased himself has contributed to the
alleged accident. Further, offending vehicle did not have valid
certificate of fitness. It is further stated that such vehicle has no
permit to drive the vehicle in the territory where the accident
took place. It is further stated that at the time of accident, R-1
was not holding a valid and effective driving license to drive the
offending vehicle at the time of accident. But insurance of the
offending vehicle with the insurance company is not denied.
8. From the material on record, the following issues
were framed on 02.02.2018 by my Ld. Predecessor:
1. Whether the deceased received fatal
injuries in the accident which took place on
14.09.2016 at about 4.00 PM involving
offending vehicle i.e. TATA 407 bearing No. UP
15AT 3690 due to rash and negligent driving of
respondent No.1/driver, owned by respondent
No.2/owner and insured by respondent no.
3(insurance company)? OPP
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2. To what amount of compensation the
petitioner is entitled to claim and from whom?
OPP
3. Relief.
9. As per record, petitioner no.1/Sh. Furkan, father of
deceased filed his examination-in-chief by way of affidavit as
Ex.PW1/1 dated 16.01.2019 and relied upon documents Ex. PW-
1/A to PW-1/C. Thereafter, PW-1 filed an additional
examination-in-chief by way of affidavit Ex. PW-1/2 dated
08.09.2019, and relied upon various documents Ex. PW-1/D to
Ex. PW-1/P including relating to mechanical inspection report,
MLC, panchama etc.
He was cross-examined by learned counsel for
insurance company/R-3 and learned counsel for R-1&R-2.
10. Further, Mohd. Tanzeen Khan/Employer of deceased
Shahrukh was examined as PW-2. As per record, such PW-2
tendered his examination-in-chief by way of affidavit as Ex.PW-
2/1. He relied upon income certificate of deceased as Ex. PW-
2/A.
He was cross-examined by learned counsel for
insurance company/R-3.
11. Further, one alleged eye witness,Sh. Inshad
examined himself as PW-3and tendered his examination-in-chief
by way of affidavit as Ex.PW-3/A.
He was cross-examined by learned counsel for
insurance company/R-3 as well as counsel for R-1&R-2.
12. No other evidence has been led on behalf of
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petitioner.
13. Further, as per record, Respondent no.1 examined
himself as R-1W-1 and tendered his affidavit as Ex. R-1W-1/A.
He relied upon document Ex.R-1W-1/1 and Mark A.
He was cross-examined by learned counsel for
petitioner.
14. No other evidence led by respondent no.3 side.
15. Arguments in detail were addressed by counsels for
petitioner as well as respondents side. Further, R-3 filed written
arguments.
16. On the basis of material on record, evidence adduced
and arguments addressed, issue wise findings are as under :
Issue No.1
17. In Bimla Devi & Ors vs. Himachal Road Transport
Corporation & ors [(2009) 13 SC 530,[ in Kaushnumma Begum
and others v/s New India Assurance Company Limited, [2001
ACJ 421 SC[, in National Insurance Co. Ltd. vs. Pushpa Rana cited as
[2009 ACJ 287], it has been held that the negligence has to be
decided on the touchstone of preponderance of probabilities and
a holistic view is to be taken. It has been further held that the
proceedings under the Motor Vehicle Act are not akin to the
proceedings in a Civil Suit and hence, strict rules of evidence are
not applicable.
18. In the present case, police after investigation had
filed charge-sheet against respondent no.1 under section
279,337,338,304A of IPC which is also suggestive of negligence
of respondent in causing the accident. The IO has filed Detailed
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Accident Report before this Tribunal. In National Insurance Co.
Vs. Pushpa Rana 2009 ACJ 287 Delhi, it was laid down that
completion of investigation and filing of chargesheet are
sufficient proof of negligence of the driver of the offending
vehicle.
19. As far as PW-1/claimant no.1 is concerned, he
admitted during his cross-examination that he is not an eye
witness to the accident in question.
20. But PW-3 Inshad deposed on the line of his original
complaint to police, on the basis of which, FIR in question was
registered and chargesheet was filed in present case regarding the
mode and manner in which accident took place, as already noted
above.
21. Such witness was cross-examined by learned
counsel for insurance company. During cross-examination, PW-
3 deposed that he alongwith deceased Shahrukh and one Abid
alongwith one more person were talking at the spot of accident.
He further claimed that according to him, the number of the
offending vehicle is UP-15-3690. Further, stated that he has filed
the complaint with the police in this regard and gave full number
of such vehicle. But he further admitted that it is correct that in
his previous statement, complete number is not mentioned. But
he further gave the details of the accident and after effects during
such cross-examination. He further deposed that he gave details
to the police when he visited to the police station after the
accident and after 4-5 days of accident. He further denied that he
is not an eye witness to the accident. But he admitted that
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deceased was his real nephew or Bhatija.
22. Further, during his cross-examination by learned
counsel for R-1&R-2, such witness, PW-3 deposed that there was
no specific reason why they were present at the place of the
accident. He further deposed that its a common place. He
further deposed that he did not know whether truck was loaded
with good or not. He further deposed that truck driver alongwith
truck fled away after committing such accident. During such
cross-examination, he further deposed regarding where he was
standing, how many vehicles were plying there and how wide
was the road where the accident took place. He further denied
the suggestion that he was deposing falsely to help the claimant
being his relative.
23. On the other hand, respondent no.1 Sandeep Kumar
Gautam in his evidence as R-1W-1 deposed on the lines of reply
filed by him earlier stating that he was not driving the vehicle at
the time of accident. He further deposed that vehicle in question
is planted by the police merely on the basis of suspension. It is
further deposed in the examination in chief by way affidavit, the
number given to the police of the offending vehicle was
incomplete number UP-15-3690. It is further deposed that make,
model, colour or description of offending vehicle is not
mentioned in the FIR.
24. During his cross-examination, such R-1W-1
admitted that in the FIR in question he was arrested and released
on bail by concerned police officials. He further admitted that
offending vehicle UP-15 AT-3690 was taken in possession by the
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police and later on released on superdari. He denied the
suggestion that he was driving such offending vehicle. He
further denied the suggestion that he hit the motorcycle standing
at the side of the road in rash and negligent manner which
resulted in the death of such Shahrukh.
25. As such, it can be noted that there are two
conflicting versions on the record. One of claimant side and
another of respondent no.1 regarding the issue under
consideration.
26. But on perusal of evidence on record, it may be
noted that in the FIR itself, vehicle no. UP-15-3690 is mentioned.
Thus, although it is not a complete number, but substantially the
number matching with the offending vehicle. Further, during
such sudden accident when the offending vehicle run away, it is
natural that complete number could not have been noted. More
importantly, having regard to Section 11 of the Evidence Act, if
as per the R-1, he was not driving the vehicle in question or that
vehicle is not involved in such accident, no explanation given,
where else was such R-1 at that time or such vehicle. Thus, plea
of the respondent no.1 appears to be after thought in order to
build up a defence in connected criminal case. Further, even
otherwise, the evidence of eye witness Irshad is natural and
consistent even during his cross-examination. Further, ultimately
a postmortem report filed in this case which also indicates that
deceased Shahrukh expired due to road accident on the date of
accident in question.
As such, having regard to such evidence on record,
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and the chargesheet filed against the accused/R-1, it is held that
accident in question is caused by offending vehicle in question
which was such R-1 was driving that too in a rash and negligent
manner.
Issue No.1 is decided accordingly, in favour of the
petitioner.
CONTRIBUTORY NEGLIGENCE
27. A vague plea of contributory negligence on the part
of deceased was taken by insurance company in its reply. But, on
perusal of evidence on record, it is revealed that no evidence led
by such R-3/insurance company to prove the same. In fact, not
even a suggestion is put to the claimant/petitioner side witnesses
in this regard. As such, it is held that insurance company has
failed to prove such defence.
ISSUE NO.2
28. At this stage it would be fruitful, in fact necessary, to
refer relevant case law on issue under consideration.
29. In The Landmark Case Of National Insurance
Company Limited. Petitioner; Versus Pranay Sethi And
Others (2017 Scc Online Sc 1270), decided by constitutional
bench of Hon'ble Supreme Court of India, regarding the concept
of 'just compensation' it was held :
"................55. Section 168 of the Act deals with the
concept of "just compensation" and the same has to
be determined on the foundation of fairness,
reasonableness and equitability on acceptable legal
standard because such determination can never be
in arithmetical exactitude. It can never be perfect.
The aim is to achieve an acceptable degree of
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proximity to arithmetical precision on the basis of
materials brought on record in an individual case.
The conception of "just compensation" has to be
viewed through the prism of fairness,
reasonableness and non-violation of the principle of
equitability. In a case of death, the legal heirs of the
claimants cannot expect a windfall. Simultaneously,
the compensation granted cannot be an apology for
compensation. It cannot be a pittance. Though the
discretion vested in the tribunal is quite wide, yet it
is obligatory on the part of the tribunal to be guided
by the expression, that is, "just compensation". The
determination has to be on the foundation of
evidence brought on record as regards the age and
income of the deceased and thereafter the apposite
multiplier to be applied. The formula relating to
multiplier has been clearly stated in Sarla Verma
and it has been approved in Reshma Kumari . The
age and income, as stated earlier, have to be
established by adducing evidence. The tribunal and
the courts have to bear in mind that the basic
principle lies in pragmatic computation which is in
proximity to reality. It is a well-accepted norm that
money cannot substitute a life lost but an effort has
to be made for grant of just compensation having
uniformity of approach. There has to be a balance
between the two extremes, that is, a windfall and the
pittance, a bonanza and the modicum. In such an
adjudication, the duty of the tribunal and the courts
is difficult and hence, an endeavour has been made
by this Court for standardisation which in its ambit
includes addition of future prospects on the proven
income at present..................."
30. Further about the principles relating to Assessment
of compensation in case of death, it was held in Pranay Sethi
(supra) that detailed analysis of Sarla Verma (SMT) And Others
Versus Delhi Transport Corporation And Another (2009 Scc
Online Sc 797) is necessary as in the said case, the Court
recapitulated the relevant principles relating to assessment of
compensation in case of death. In fact , Hon'ble SC in Pranay
Sethi (supra) mainly relied and approved the earlier judgment of
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Sarla Verma( Supra) read with Reshma Kumari[( 2013) 9 SCC
65 : (2013) 4 SCC (Civ) 191 : (2013) 3 SCC (Cri) 826 ], with
some modification, regarding all the aspects like aspect of
multiplier,the steps and guidelines stated in para 19 of Sarla
Verma for determination of compensation in cases of death,
future prospects, deduction to be made towards personal and
living expenses.
31. In the present case, PW-1/father of deceased
deposed that deceased was about 23 years old at the time of
accident. Further, he proved on record copy of Election card of
deceased as Ex. PW-1/P (OSR). Further, copy of death certificate
registered on 23.09.2016 also filed issued by concerned
department of U.P. Although such election card purpose is
different but it do indicates that the age of deceased also. Further,
Aadhar card of other brother and sister of deceased also placed
on record. From that also, some indications can be taken about
the age of the deceased.
But, during cross-examination, PW-1 admitted that
he has not placed on record any documentary evidence or school
certificate of deceased showing his date of birth, although PW-1
claimed that his son was 10th failed.
But at the same, it may be noted that no evidence to
the contrary apart from such suggestion is placed on record by
the respondent side.
As such, based on documents and evidence on
record, it is held that deceased was 23 years old at the time of
accident.
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32. Further, it is deposed by PW-1/petitioner no.1/father
of deceased that deceased was working as motor mechanic with
M/s. Asian Motors at A-35/1, Thokar no. 6, Abu Fazal Enclave II,
Jamia Milia, New Delhi-110025.
During his cross-examination, PW-1 admitted that
his son was resident of Village-Kulchhina, Distt-Ghaziabad, U.P.
He further admitted that his son never received his income by
banking channel/cheque. But he denied the suggestion that salary
certificate filed in this regard is fake and fabricated.
Further, such alleged employer Mohd. Tanzeen
Khan, proprietor of such Asian Motors examined in present case
as PW-2. During his examination in chief by way of affidavit, he
affirmed that deceased was working with him as motor mechanic
and was earning Rs.15,000/- p.m. Further, proved on record
income certificate Ex.PW-2/A.
During his cross-examination, PW-2 further deposed
that deceased was working with him since 2013. But he admitted
that he never deducted any PPF etc. He further admitted that no
certificate of mechanic was given by deceased to such company.
But he denied the suggestion that income certificate Ex. PW-2/A
is false and fabricated.
33. It is argued by learned counsel for insurance
company that in any case, place of accident is of U.P. Even as
per evidence by father of deceased/PW-1, it is proved on record
that such deceased was resident of House no. 25, village
Kalchhina, Distt-Ghaziabad, U.P. It is further argued that in
order to claim falsely the income in Delhi in the claim petition
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and otherwise, address of Delhi is mentioned of the claimants. It
is further pointed out in this regard that address of claimant no. 2
mother of the deceased as well as other claimants/brother and
sister of the deceased is of Ghaziabad, U.P. itself. Even the death
certificate is issued by Meerut, U.P. Administration. It is further
argued that claimant side failed to prove any documentary
evidence regarding working of the deceased in Delhi. It is
further argued that as such, any case at best minimum wages for
10th fail be allowed, if so at all.
34. On the the other hand, it is argued by claimant side
that particularly by evidence of PW-2/employer it is proved that
deceased was working in Delhi. It is further proved that he was
earning Rs.15,000/- p.m. by working as Motor Mechanic.
35. Although, it is correct that even such employer/PW-
2 failed to place on record any documentary proof including his
own account books as well as proof of salary to the deceased.
Further, no bank statement is proved on record. But at the same
time, it may further be noted that even the best case of the
claimant side itself is that deceased was working as a motor
mechanic in Delhi. Further, place of work falls under the
unorganized sector. Further, the nature of business of such
employer of PW-2 is sole proprietorship firm. Thus, hardly any
proof of salary by banking channel is expected for such work of
motor mechanic. Thus, on the basis of evidence on record,
particularly of PW-2, it is held that deceased was working in
Delhi as motor mechanic.
36. But having held so, it may further be noted that
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claimant side has failed to prove that deceased was earning
Rs.15,000/- p.m. regularly. Thus, in any case, having regard to
nature of job, it is held that deceased was a skilled worker
working in Delhi. Accordingly, it is deemed and held that he was
earning at least the salary of a skilled worker in Delhi at the time
of accident on 14.09.2016. Same is Rs.11,622/- p.m. As such, it
is held that deceased was earning Rs.11,622/- p.m. at the time of
accident.
37. At this stage, it may be noted that Hon'ble High
Court Delhi in the case of "The New India Assurance Co. Ltd. v.
Farzana Rahat & Ors., MAC.APP. 555/13 decided on
24.11.2022 held regarding future prospect for employees working
in private sector:
"52. This Court recently in MAC Appeal
448/2015 titled as Surya Sharma Vs Anil Kumar
Sharma & Ors, decided on 17.10.2022 examined the
issue of multiplier to be applied to an employee
working in a private sector and held as follows:
"With respect to the consideration of the future
prospects, admittedly the deceased was 29 years of
age at the time of the alleged incident. As rightly
pointed out by learned counsel for Respondent No.3,
permanent employment refers to those wherein the
employee cannot be terminated in ordinary course,
i.e., employees of Central and State Government.
Whereas in this case, the deceased was employed in
a private company namely, M/s Fun Foods Private
Limited, hence he was under a contractual
obligation, thereby making him an employee under
"fixed salary‟ which employment can be terminated
by giving notice. Hence, the deceased can be treated
as a person with "fixed salary‟ as provided in para
59.4 of Pranay Sethi (Supra) judgment. Therefore,
the future prospects of 40% can be awarded to the
deceased who was a salaried employee and was
below the age of 40 at the time of his accident.
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53. Hence applying the same ratio in the present
matter, in view of the observations of Hon‟ble
Supreme Court in National Insurance Co. Ltd v.
Pranay Sethi & Ors reported as (2017) 16 SCC 680
at Para 59.4, future prospects at the rate of 40% of
the income are to be added to the income of a person
where the deceased had a fixed salary and was
below the age of 40 years.
38. It is accordingly held that the deceased fall in the
category of ''person with fixed salary'', as he was working in a
private sector job.
39. Further, having regard to ratio and direction in
Pranay Sethi (Supra) and other case laws the percentage towards
future prospect is @40 % where the deceased was below 40
years, (at the time of accident).
Step No- 1 : Ascertainment of Multiplicand:
40. As already noted above, the income of the deceased
at the time of accident was Rs.11,622/- p.m.
41. As per evidence on record, deceased was unmarried.
42. Accordingly, as it is held in Sarla Verma (Supra) that
deduction towards personal and living expenses of the deceased
should be 1/2nd where the deceased was unmarried. Thus
accordingly, in the present case, the deduction for personal
expenses will be 1/2nd (kindly see para 32 of Sarla Verma
(Supra)).
Step No- -2 : Ascertainment of Multiplier:
43. In the present case age of the deceased was 23 years
as per record. Thus, having regard to the table mentioned in
para - 40 of Sarla Verma (supra), it is held that multiplier of 18 is
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applied.
Step No- -3 : Actual Calculation ( actual loss/loss of
dependency):
44. In view of the above discussion of law, the calculation in
the present case is as under:
44.1. Annual income of the deceased
(Rs.11,622X 12). = Rs.1,39,464/-
44.2. Future prospect (40 % of Rs.1,39,464/-) = Rs.55,786/-/-
------------------
44.3. Total = Rs.1,95,250/-
===========
44.4. Deduction for personal expenses (1/2nd of Rs.1,95,250/-) = (-)Rs.97,625/- 44.5. Multiplicand ( Rs.1,95,250/- (-) Rs.,97,625/-) =Rs.97,625/- 44.6. As such, the total loss of dependency is:
Rs.97,625/-(multiplicand)x 18 (multiplier) = Rs.17,57,250/-
Grant Of Loss Of Estate, Loss Of Consortium And Funeral Expenses:
45. In this regard in Pranay Sethi (supra) it was held :
''...............46. Another aspect which has created confusion pertains to grant of loss of estate, loss of consortium and funeral expenses..... .
.
52. As far as the conventional heads are concerned, we find it difficult to agree with the view expressed in Rajesh . It has granted Rs MACT No. 701/17 Furkan v. Sandeep Kr. Gautam Page No. 17 of 34 BK : 18 : 25,000 towards funeral expenses, Rs 1,00,000 towards loss of consortium and Rs 1,00,000 towards loss of care and guidance for minor children. The head relating to loss of care and minor children does not exist. Though Rajesh refers to Santosh Devi , it does not seem to follow the same. The conventional and traditional heads, needless to say, cannot be determined on percentage basis because that would not be an acceptable criterion. Unlike determination of income, the said heads have to be quantified. Any quantification must have a reasonable foundation.
There can be no dispute over the fact that price index, fall in bank interest, escalation of rates in many a field have to be noticed. The court cannot remain oblivious to the same. There has been a thumb rule in this aspect. Otherwise, there will be extreme difficulty in determination of the same and unless the thumb rule is applied, there will be immense variation lacking any kind of consistency as a consequence of which, the orders passed by the tribunals and courts are likely to be unguided. Therefore, we think it seemly to fix reasonable sums. It seems to us that reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs 15,000, Rs 40,000 and Rs 15,000 respectively. The principle of revisiting the said heads is an acceptable principle. But the revisit should not be fact-centric or quantum-centric. We think that it would be condign that the amount that we have quantified should be enhanced on percentage basis in every three years and the enhancement should be at the rate of 10% in a span of three years. We are disposed to hold so because that will bring in consistency in respect of those heads.
.
.
59.8. Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and MACT No. 701/17 Furkan v. Sandeep Kr. Gautam Page No. 18 of 34 BK : 19 : funeral 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...............''
46. Thus in view of such finding in Pranay Sethi (Supra), in Which Hon'ble Supreme Court wanted to avoid immense variations and instead ensure consistency, the claimants are also entitled to certain sums towards grant of loss of estate, loss of consortium and funeral expenses.
47. In Magma General Insurance Co. Ltd. v. Nanu Ram & Ors. (2018) 18 SCC 130, the Hon'ble Supreme Court of India held as under:
This Court interpreted "consortium" to be a compendious term, which encompasses spousal consortium, parental consortium, as well as filial consortium. The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse.
Parental consortium is granted to the child upon the premature death of a parent, for loss of parental aid, protection, affection, society, discipline, guidance and training.
Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love and affection, and their role in the family unit.
Modern jurisdictions world-over have recognized that the value of a child's consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions MACT No. 701/17 Furkan v. Sandeep Kr. Gautam Page No. 19 of 34 BK : 20 : permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is the compensation for loss of love and affection, care and companionship of the deceased child.
The Motor Vehicles Act, 1988 is a beneficial legislation which has been framed with the object of providing relief to the victims, or their families, in cases of genuine claims. In case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of Filial Consortium.
Parental Consortium is awarded to the children who lose the care and protection of their parents in motor vehicle accidents.
The amount to be awarded for loss consortium will be as per the amount fixed in Pranay Sethi (supra).
At this stage, we consider it necessary to provide uniformity with respect to the grant of consortium, and loss of love and affection. Several Tribunals and High Courts have been awarding compensation for both loss of consortium and loss of love and affection. The Constitution Bench in Pranay Sethi (supra), has recognized only three conventional heads under which compensation can be awarded viz. loss of estate, loss of consortium and funeral expenses.
In Magma General (supra), this Court gave a comprehensive interpretation to consortium to include spousal consortium, parental consortium, as well as filial consortium. Loss of love and affection is comprehended in loss of consortium.
The Tribunals and High Courts are directed to award compensation for loss of consortium, which is a legitimate conventional head. There is no justification to award compensation towards loss of love and affection as a separate head.
48. It may further be noted that the date of judgment of Pranay Sethi (supra) is 31/10/2017. Further it was stated in such MACT No. 701/17 Furkan v. Sandeep Kr. Gautam Page No. 20 of 34 BK : 21 : judgment itself that the amount that Hon'ble SC have quantified should be enhanced on percentage basis in every three years and the enhancement should be at the rate of 10% in a span of three years. As such a sum of Rs.16,500/- for cremation expenses; and Rs.16,500/- towards loss of estate is also payable.
49. Further, on the date of accident, deceased had left behind 8 petitioners, who are father, mother, brother and sisters. As such in view of the judgments of the Hon'ble Supreme Court as noted above, each 8 of them would further be entitled Rs. 44,000/- each towards loss of consortium.
Total Award Amount
50. Thus the total award amount comes to Rs.17,57,250/- (+) Rs 16,500/-( Loss to estate) + Rs. 16,500/- ( funeral expenses) + Rs.3,52,000/-( loss of consortium) = Rs. 21,42,250/-.
LIABILITY:-
51. Initially, in his reply, insurance company raised the defeence that there is no valid driving licence/permit to ply such offending vehicle at the place of accident, but it appears that later on R-1&R-2 placed on record certain documents in this regard. Further, thereafter in any case including in written statement, no statutory defence is raised or proved.
52. Since there is no statutory defence, therefore, the compensation will be payable by the insurance company of offending vehicle with simple interest @ 9% p.a. from the date of filing of petition i.e. 04.08.2017 till actual realization.
MACT No. 701/17 Furkan v. Sandeep Kr. Gautam Page No. 21 of 34 BK : 22 :
53. It may be noted that in the judgment of Ram Charan & Ors. Vs. The New India Assurance Co. Ltd., MAC Appeal no. 433/2013, decided on 18.10.2022 it was noted regarding rate of interest:
"25 to evaluate the submission made by counsel for the applicants, it is imperative to examine the guiding principles for the grant of interest. In Abati Bezbaruah Vs. Geological Survey of India, (2003) 3 SCC 148, the following was held while interpreting section 171 of the MV Act, 1988:-
Three decisions were cited before us by Mr. A. P. Mohanty, learned counsel appearing on behalf of the Appellant, in support of his contentions. No ratio has been laid down in any of the decisions in regard to the rate of interest and the rate of interest was awarded on the amount of compensation as a matter of judicial discretion. The rate of interest must be just and reasonable depending upon the facts and circumstances of each case and taking all relevant factors including inflation, change of economy, policy being adopted by Reserve Bank of India from time to time, how long the case is pending, permanent injuries suffered by the victim, enormity of suffering, loss of future income, loss of enjoyment of life etc. into consideration. No rate of interest is fixed under Section 171 of the MV Act 1988.
Varying rates of interest are being awarded by Tribunals, High Courts and the Supreme Court. Interest can be granted even if a claimant does not specifically plead for the same as it is consequential in the eye of the law. Interest is compensation for forbearance or detention of money and that interest being awarded to a party only for being kept out of the money which ought to have been paid to him. No principle could be deduced nor can any rate of interest be fixed to have a general application in motor accident provision under Section 171 giving discretion to the Tribunal in such matter. In other matters, awarding of interest depends upon the statutory provisions mercantile usage and doctrine of equity. Neither Sec. 34 CPC nor Sec. 4-A(3) of MACT No. 701/17 Furkan v. Sandeep Kr. Gautam Page No. 22 of 34 BK : 23 : Workmen's Compensation Act are applicable in the matter of fixing are of interest in a claim under the Motor Vehicles Act. The courts have awarded the interest at different rates depending upon the facts and circumstances of each case. Therefore, in my opinion, there cannot be any hard and fast rule in awarding interest and the award of interest is solely on the discretion of the Tribunal of the High Court as indicated above."
54. Having regard to the prevailing rate of interest and the judgments of Hon'ble Supreme Court of India, including in the case of Erudhaya Priya vs State Express Transport decided on 27 July, 2020, Civil Appeal Nos. 2811-2812 OF 2020 [Arising out of SLP (C) Nos.8495-8496 of 2018], which is three Judges Bench judgment of Hon'ble Supreme Court, such interest @ 9% per annum is deemed fit and accordingly granted in the present case.
55. Accordingly, it is directed insurance company shall deposit such Award amount of Rs.21,42,250/- from the date of filing of petition till its actual realization.
56. The award amount shall be deposited with State Bank of India, Saket Court Branch, New Delhi by way of RTGS/NEFT/IMPS in account of MACT FUND PARKING, A/c No. 35195787436, IFS Code SBIN0014244 and MICR code 110002342 under intimation to the Nazir along with calculation of interest and to the Counsel for the petitioner. Respondent side shall also furnish TDS certificate, if any to the petitioner.
Directions Regarding Deposit of Award Amount in Bank:
57. In compliance of directions issued vide order dated MACT No. 701/17 Furkan v. Sandeep Kr. Gautam Page No. 23 of 34 BK : 24 : 16.11.2021 by Hon'ble Supreme Court of India in Writ Petition Civil No.534/2020 titled as Bajaj Allianz General Insurance Co. Pvt. Ltd. Vs. Union of India the award amount shall be deposited with State Bank of India, Saket Court Branch, New Delhi by way of RTGS/NEFT/IMPS in account of MACT FUND PARKING, A/c No. 35195787436, IFS Code SBIN0014244 and MICR code 110002342 under intimation to the Nazir in the prescribed format i.e. MCOP Number on the file of (Claims Tribunal Name) Date of award, Compensation Amount, Income Tax Deduction at Source, Bank Transaction Reference No./Unique Transaction Reference (UTR) Number. In turn, the State Bank of India, Saket Courts Branch shall receive the deposited sum and capture the above information and furnish a statement of account on a daily basis to the Nazir of this Tribunal to reconcile the deposits of compensation and the respective MCOPs towards which such deposits are made. On such deposits being made, the insurance company shall submit a letter to the Nazir of this Tribunal enclosing a copy of the said bank advice, in prescribed format as above, as per which the deposit made to the bank account of this Tribunal, to enable this Tribunal to keep tab on the deposits made and the MCOPs for which they were made. The Payment advice for remittance of compensation is as under:
PAYMENT ADVICE FOR REMITTANCE OF
COMPENSATION :
............ Bank ................... To:
............... Court ........................
MACT No. 701/17 Furkan v. Sandeep Kr. Gautam Page No. 24 of 34 BK : 25 : We confirm remittance of compensation as follows on instructions of ................................... (insurance company):-
MCOP Number On the file of (Claims Tribunal Name), Place Date of award Amount Deposited, Income Tax Deduction at Source, if any Unique Transaction Reference (UTR) Number. Insurance company of offending vehicle, on deposit, shall also send a copy of the payment advice in above format to this Tribunal and serve a copy of the same on the claimants or their counsel as the case may be.
MODE OF DISBURSEMENT OF THE AWARD AMOUNT TO THE CLAIMANTS AS PER THE PROVISIONS OF THE 'MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE' (MCTAP).
58. This Tribunal is in receipt of the orders dated 07.12.2018 passed by the Hon'ble High Court of Delhi in FAO no. 842/2003 titled as Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors whereby the Hon'ble High Court of Delhi has formulated MACAD (Motor Accident Claims Annunity Deposit Scheme) which has been made effective from 01.01.2019. The said orders dated 07.12.2018 also mentions that 21 banks including State Bank of India is one of such banks which are to adhere to MACAD. The State Bank of India, Saket Courts, Delhi is directed to disburse the amount in accordance with MACAD formulated by the Hon'ble High Court of Delhi.
Apportionment:-
59. At this stage, it is relevant to the refer to the judgment of A. V. Padma & Ors. Vs., R. Venugopal & Ors.
(2012) 3 Supreme Court Cases 378:
"......In the case of Susamma Thomas (supra), this Court issued certain guidelines in order to MACT No. 701/17 Furkan v. Sandeep Kr. Gautam Page No. 25 of 34 BK : 26 : "safeguard the feed from being frittered away by the beneficiaries due to ignorance, illiteracy and susceptibility to exploitation".
Even as per the guidelines issued by this Court Court, long term fixed deposit of amount of compensation is mandatory only in the case of minors, illiterate claimants and widows. In the case of illiterate claimants, the Tribunal is allowed to consider the request for lumpsum payment for effecting purchase of any movable property such as agricultural implements, rickshaws etc. to earn a living. However, in such cases, the Tribunal shall make sure that the amount is actually spent for the purpose and the demand is not a ruse to withdraw money. In the case of semi-illiterate claimants, the Tribunal should ordinarily invest the amount of compensation in long term fixed deposit. But if the Tribunal is satisfied for reasons to be stated in writing that the whole or part of the amount is required for expanding an existing business or for purchasing some property for earning a livelihood, the Tribunal can release the whole or part of the amount of compensation to the claimant provided the Tribunal will ensure that the amount is invested for the purpose for which it is demanded and paid. In the case of literate persons, it is not mandatory to invest the amount of compensation in long term fixed deposit.
The expression used in guideline No. (iv) issued by this Court is that in the case of literate persons also the Tribunal may resort to the procedure indicated in guideline No. (i), whereas in the guideline Nos.
(i), (ii), (iii) and (v), the expression used is that the Tribunal should. Moreover, in the case of literate persons, the Tribunal may resort to the procedure indicated in guideline No. (i) only if, having regard to the age, fiscal background and strata of the society to which the claimant belongs and such other considerations, the Tribunal thinks that in the larger interest of the claimant and with a view to ensure the safety of the compensation awarded, it is necessary to invest the amount of compensation in long term fixed deposit.
Thus, sufficient discretion has been given to the MACT No. 701/17 Furkan v. Sandeep Kr. Gautam Page No. 26 of 34 BK : 27 : Tribunal not to insist on investment of the compensation amount in long term fixed deposit and to release even the whole amount in the case of literate persons. However, the Tribunals are often taking a very rigid stand and are mechanically ordering in almost all cases that the amount of compensation shall be invested in long term fixed deposit. They are taking such a rigid and mechanical approach without understanding and appreciating the distinction drawn by this Court in the case of minors, illiterate claimants and widows and in the case of semiliterate and literate persons. It needs to be clarified that the above guidelines were issued by this Court only to safeguard the interests of the claimants, particularly the minors, illiterates and others whose amounts are sought to be withdrawn on some fictitious grounds. The guidelines were not to be understood to mean that the Tribunals were to take a rigid stand while considering an application seeking release of the money.
The guidelines cast a responsibility on the Tribunals to pass appropriate orders after examining each case on its own merits. However, it is seen that even in cases when there is no possibility or chance of the feed being frittered away by the beneficiary owing to ignorance, illiteracy or susceptibility to exploitation, investment of the amount of compensation in long term fixed deposit is directed by the Tribunals as a matter of course and in a routine manner, ignoring the object and the spirit of the guidelines issued by this Court and the genuine requirements of the claimants. Even in the case of literate persons, the Tribunals are automatically ordering investment of the amount of compensation in long term fixed deposit without recording that having regard to the age or fiscal background or the strata of the society to which the claimant belongs or such other considerations, the Tribunal thinks it necessary to direct such investment in the larger interests of the claimant and with a view to ensure the safety of the compensation awarded to him.
The Tribunals very often dispose of the claimant's application for withdrawal of the amount of MACT No. 701/17 Furkan v. Sandeep Kr. Gautam Page No. 27 of 34 BK : 28 : compensation in a mechanical manner and without proper application of mind. This has resulted in serious injustice and hardship to the claimants. The Tribunals appear to think that in view of the guidelines issued by this Court, in every case the amount of compensation should be invested in long term fixed deposit and under no circumstances the Tribunal can release the entire amount of compensation to the claimant even if it is required by him. Hence a change of attitude and approach on the part of the Tribunals is necessary in the interest of justice....."
60. In this background of legal position it is ordered as follows :
(I) Share of claimant/Petitioner No. 1/Father of the deceased: Out of compensation amount, claimant no.1/father is awarded Rs.50,000/-. (II) Share of claimant/Petitioner No.2/Mother of the deceased: Out of the compensation amount petitioner no.2 is awarded Rs.17,92,250/- alongwith all the interest on whole of such Award amount.
Out of such amount, Rs.15 lacs is kept in form of monthly FDRs of Rs.20,000/- each. Remaining amount is released to the petitioner no.2 in her bank account near her place of residence as per rule/ directions. (III) Share of Petitioner No.3 to 8/brother and sisters of the deceased: Out of the compensation amount petitioner no.3 to 8 are awarded Rs.50,000/-each.
Whole of such amount is released to such major petitioners in their bank account near their place of residence as per rule/ directions. But out of such petitioners, for petitioners who are minor, their Rs.50,000/-
MACT No. 701/17 Furkan v. Sandeep Kr. Gautam Page No. 28 of 34 BK : 29 : each deposited in the form of FDR till they attain the age of 18 years and thereafter only be released to them.
61. The following directions are also given to the bank for compliance:
(a) The Bank shall not permit any joint name (s) to be added in the savings bank account or fixed deposit accounts of victim i.e. the savings bank account of the claimant shall be individual savings bank account and not a joint account.
(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.
(c) The monthly interest be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant near the place of their residence.
(d) The maturity amounts of the FDR (s) be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant near the place of their residence.
(e) No loan, advance or 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 freeze the account of the claimant so that no debit card be issued in respect of the account of the claimant from any other branch of the bank.
MACT No. 701/17 Furkan v. Sandeep Kr. Gautam Page No. 29 of 34 BK : 30 :
(g) The bank shall make an endorsement on the passbook of the claimant 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 shall produce the passbook with the necessary endorsement before the Court on the next date fixed for compliance.
FORM - IVA SUMMARY OF COMPUTATION OF AWARD IN DEATH CASES TO BE INCORPORATED IN THE AWARD.
1. Date of accident 14.09.2016
2. Name of deceased Shahrukh
3. Age of the deceased 23 years
4. Occupation of the deceased Motor Mechanic
5. Income of the deceased Rs.11,622/- p.m. Name, age and relationship of legal representative of deceased:
S No. Name Age Relation (i) Furkan 46 years Father (ii) Smt. Sabetoon 44 years Mother (iii) Ms. Tabasum 19 years Sister (iv) Ms. Aayisha 15 years Sister (v) Master Amir 14 years Brother (vi) Ms. Mehjabi 13 years Sister (vii) Ms. Mantasha 10 years Sister (viii) Master Sakib 6 years Brother MACT No. 701/17 Furkan v. Sandeep Kr. Gautam Page No. 30 of 34 BK : 31 : Computation of compensation:- S. No. Heads Awarded by the Claims Tribunal 1 A. Income of the deceased per Rs.1,39,464/- year 2 B. Add-Future Prospects 40% Rs.55,786 /- of A (per year) 3 C. Total Rs.1,95,250/- 4 D. Less-Personal Expenses of Rs.97,625/- the deceased 1/ 2nd of (C) 5 E. Yearly loss of dependency [C Rs.97,625/- -D] 6 F. Multiplier. 18 7 G. Total loss of dependency (E x Rs.17,57,250/- F = G) 8 H. Medical Expenses Nil 9 I. Deduction ,if any Nil 10 J. Total loss of dependency Rs.17,57,250/- after deduction, if any 11 K. Compensation for loss of Rs.3,52,000/- consortium 12 L. Compensation for loss of Rs.16,500/- estate 13 M. Compensation towards Rs.16,500 /- funeral expenses 14 N. TOTAL COMPENSATION Rs.21,42,250/- total of J+K+L+M =N 15 Interest: Interest @ 9% is Simple interest
granted including having regard @ 9% p.a. from the MACT No. 701/17 Furkan v. Sandeep Kr. Gautam Page No. 31 of 34 BK : 32 : to the Hon'ble Supreme Court date of filing of judgment in Erudhaya Priya vs petition till actual State Express Transport realization of Award decided on 27 July, 2020, Civil amount/ Appeal Nos. 2811-2812 OF compensation. 2020 [Arising out of SLP (C) Nos.8495-8496 of 2018], which is three Judges Bench judgment of Hon'ble Supreme Court.
16 Award amount kept in FDRs Rs.16 lacs 17 Award amount released Remaining principal award PLUS interest @ 9% p.a. on total principal award amount from date of filing of petition till actual realization of principal amount awarded.
18 Mode of disbursement of the (I) Share of award amount to the claimant Petitioner No. 1/
(s). (Clause 29) father of deceased:
Out of the
compensation amount
petitioner no.1 is
awarded Rs.50,000/-.
with interest as
awarded above of the
compensation.
(II) Share of
Petitioner No. 2/
mother of deceased:
Out of the
compensation amount
petitioner no.2 is
awarded
Rs.17,92,250/- with
interest as awarded
above of the
MACT No. 701/17 Furkan v. Sandeep Kr. Gautam Page No. 32 of 34 BK
: 33 :
compensation. Out of
such compensation,
Rs.15 lacs is kept in
form of monthly FDRs
of Rs.20,000/-.
Remaining amount is
released to the
petitioner no. 2 in her
bank account near her
place of residence as
per rule/ directions.
(III) Share of
Petitioner No. 3 to 8:
Out of the
compensation amount
petitioner no.3 to 8 are
awarded Rs.50,000/-
each. Whole of such
amount be released to
such major petitioners
in their bank account
near their place of
residence as per
rules/directions. But
out of such petitioners,
for petitioners who are
minor, their
Rs.50,000/- each
deposited in the form
of FDR till they attain
the age of 18 years and
thereafter only be
released to them.
19 Next Date for compliance of the 01.06.2023
award (Clause 31)
62. Copy of this award be given to the parties free of cost. The copy of award be sent to the DLSA and Ld. MACT No. 701/17 Furkan v. Sandeep Kr. Gautam Page No. 33 of 34 BK : 34 : Metropolitan Magistrate.
63. Put up on 01.06.2023 for compliance.
Announced in open Court on 01st May,2023 (Naveen Kumar Kashyap) PO-MACT (South East)/ Saket Courts/New Delhi MACT No. 701/17 Furkan v. Sandeep Kr. Gautam Page No. 34 of 34 BK