Delhi District Court
Naina Bhatia & Ors. vs . Kunwar Pal & Ors. on 4 May, 2019
IN THE COURT OF SH. M. K. NAGPAL
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNAL :
PATIALA HOUSE COURTS, NEW DELHI
MACP No. 17/15
Naina Bhatia & Ors. Vs. Kunwar Pal & Ors.
1. Smt. Naina Bhatia
W/o. Sh. Naresh Bhatia
2. Sh. Naresh Bhatia
S/o. Sh. Vijay Kumar Bhatia
3. Ms. Prerna Bhatia
D/o. Sh. Naresh Bhatia
(P-3 being minor through her mother/natural
guardian/P-1 Smt. Naina Bhatia)
All R/o. RZ-51B, B-Block,
Gali No. 7, Raghu Nagar, Delhi-110045.
Also at:-
RZ-32, I-Block, Gali No.6,
West Sagarpur, Delhi-110046.
Also at:-
C-121-123, Khasra No.61/1,
Gali No.25, Harphool Vihar, Jai Vihar,
Phase-3, Nangli Vihar, Najafgarh,
Baprola West, Delhi-110043.
......Petitioners/Claimants.
AND
MACP No. 18/15
Urmila Devi & Anr. Vs. Kunwar Pal & Ors.
1. Smt. Urmila Devi
W/o. Sh. Vinod Kumar
2. Sh. Vinod Kumar
S/o. Sh. Manohar Lal
Both R/o. RZ-K-26/233, J-Block,
MACP Nos.17/15 & 18/15 Page no. 1 of 29
Gali No. 63, West Sagarpur, Delhi-110046.
Also at:-
RZ-K-35, West Sagarpur, Delhi-110046.
......Petitioners/Claimants.
Versus
1. Sh. Kunwar Pal
S/o. Sh. Babu Singh,
R/o. Village Nagla Lufatalipur,
Bohich Shikarpur,
Bulandshar, U.P.
2. Sh. Nazim
S/o. Sh. Yusuf
R/o. Vilage Manesar,
Gurugram, Haryana.
3. M/s. HDFC Ergo General Insurance Co. Ltd.
1St Floor, 165-166, Backbay Reclamation,
H.T. Parekh Marg, Churchgate,
Mumbai.
.....Respondents
Date of filing of DAR : 19.12.2014
Date of filing of claim petitions : 22.01.2015
Date of framing of issues : 19.02.2015
Date of concluding arguments : 01.05.2019
Date of decision : 04.05.2019
AWARD/JUDGMENT
1. These two claim petitions bearing MACP Nos.17/15 and 18/15 are connected to each other as both arise out of the same accident and hence, these are being taken up and disposed off together through this common judgment/award.
2. The claim for compensation in MACP No. 17/15 pertains to death of one Amokesh Bhatia @ Amoksh Bhatia and the other MACP No.18/15 is in respect of death of one Deepak Kumar. The petitioners in MACP No. 17/15 are parents and younger sister of the deceased Amokesh Bhatia and in MACP No. 18/15 they are parents MACP Nos.17/15 & 18/15 Page no. 2 of 29 of the deceased Deepak Kumar. Both these petitions arise out of an accident that took place on 10.09.2014 at about 2.00 AM, at NH-8, Opposite Dee Marks Hotel, towards Dhaula Kuan, Rangpuri, New Delhi, regarding which one FIR No.883/14, under Sections 279/337/304A IPC was registered at PS Vasant Kunj (South). The offending vehicle involved in this case is a truck bearing no. HR-55- K-3040, which at the relevant time of accident was driven by R-1, owned by R-2 and insured with R-3.
3. The case of petitioners, in brief, is that on the date of accident, both the deceased were returning back to their respective homes from Gurugram on a motorcycle make Honda Stunner bearing registration no. DL-9SAB-9364, which was being driven by the deceased Amokesh Bhatia with his friend/deceased Deepak Kumar on pillion. It is alleged that the offending truck came being driven by R-1 at a very fast speed from behind and after overtaking various vehicles, R-1 had suddenly applied brakes of the truck, due to which the above motorcycle struck against the offending vehicle on its back and resulted into injuries on the persons of both its riders. The deceased Deepak Kumar was removed to Indian Spinal Injuries Centre (ISIC) and was declared brought dead, whereas the other injured/deceased Amokesh Bhatia was removed to AIIMS Trauma Centre for treatment. He also subsequently expired due to the said injuries on 06.10.2014. It is alleged that the above accident resulting into death of above two deceased persons was caused due to rash and negligent driving of the offending truck by R-1.
4. Two connected Detailed Accident Reports (DARs) bearing no. 516/15 qua the deceased Amokesh Bhatia and No.517/15 qua the deceased Deepak Kumar were filed before this tribunal on 19.12.2014 and these claim petitions were also MACP Nos.17/15 & 18/15 Page no. 3 of 29 subsequently filed on their behalf on 22.01.2015 and on the same day, the DARs were clubbed with their respective petitions for further proceedings.
5. R-1 & R-2 have both filed a joint reply in these matters, while taking a plea that R-1 was holding a valid driving licence (DL) and the offending truck was duly insured with R-3 in the name of R-2 at the relevant time of accident. They have flatly denied the factum of accident or involvement of their truck in the said accident, while alleging the FIR to have been registered on false and fabricated facts.
6. R-3/Insurance Co. in its reply has specifically admitted the existence and issuance of a valid policy of insurance by them in the name of R-2, but it is their submission that the above accident took place due to fault of the motorcycle riders. They have also alleged that from the facts stated in charge-sheet, it was not clear as who was driving the said motorcycle and further the motorcycle riders were neither wearing any helmet nor holding any valid DL.
7. Since both these petitions arose out of the same accident, these were consolidated for the purposes of trial and disposal and the following consolidated issues were framed by this tribunal on 19.02.2015:-
1. Whether Sh.Amokesh Bhatia @ Amoksh Bhatia(deceased in suit no.17/15) and Sh.Deepak Kumar(deceased in suit no.18/15) sustained fatal injuries in the accident which occurred on 10.9.2014 at about 2.00 AM at Main road NH-8, Opposite Dee Marks Hotel, Towards Dhaula Kuan, Rangpuri, New Delhi caused by rash and negligent driving of vehicle No. HR-55K-3040 being driven by respondent no.1, owned by respondent no. 2 and insured with respondent no. 3? OPP.
2. Whether the petitioners are entitled for compensation? If so, to what amount and from whom?
3.Relief.
8. I have heard the arguments advanced by Sh.Manoj Goel, MACP Nos.17/15 & 18/15 Page no. 4 of 29 Ld. Counsel for the petitioners and Sh. M.P. Shahi & Ms. Manu Kushwaha, Ld. Counsels for R-3. I have also perused the entire material available on record, including the written submissions filed on behalf of the parties. However, none has turned up for the remaining two respondents to address any arguments. My issue- wise findings are as under:-
9. ISSUE NO.1 The petitioners in support of their case have examined on record total four witnesses. PW1 Smt. Urmila Devi is mother of the other deceased Deepak Kumar of MACP No. 18/15, PW2 Smt. Naina Bhatia is mother of the deceased Amokesh Bhatia of MACP No. 17/15, PW3 Sh. Apoorva Sharma is an alleged eye-witness of accident and PW4 Sh. Vikas Sharma is a witness from the office of the deceased Amokesh Bhatia. However, since admittedly, neither PW1 or PW2 nor PW4 had witnessed the above accident, it is the testimony of PW3 only, which is relevant for disposal of this issue and for proving the alleged rashness and negligence on the part of R-1 in driving the above offending truck.
10. PW3 has tendered on record his examination in chief by way of an affidavit Ex.PW3/A and it is observed that in the said affidavit, he has made specific depositions regarding the factum as well as manner of the accident. He has deposed therein that the above accident took place at around 2 am on 10.09.2014 and at that time, he was coming back to his home at Delhi from Gurugram by driving his car. He further stated specifically in the above affidavit that when he reached at the above place of accident, the above offending truck being driven rashly and negligently and at a very high speed came from behind and driver of the truck brought the said truck ahead of the above motorcycle, after overtaking many other vehicles.
MACP Nos.17/15 & 18/15 Page no. 5 of 29 He also stated specifically that driver of the offending truck suddenly applied brakes without any indicators and as a result of sudden application of brakes of the said truck, the motorcycle dashed against the offending truck with force and due to this, both boys sitting on the motorcycle fell down on road and sustained grievous injuries and became unconscious. He further claimed that he had made a call at no. 100 regarding the accident and further that he also subsequently joined the investigation of this case and site plan of the spot of accident was got prepared at his instance. He also tendered on record, a copy of his DL in proof of his identity.
11. PW3 was extensively cross examined on behalf of the respondents. He though stated in his cross-examination that there was ample space towards right as well as left side of the truck for movement of vehicles and also that there was another truck ahead of the offending truck when the accident took place, but he further volunteered that driver of the offending truck overtook another truck and when he noticed that there was another vehicle ahead of his truck, he had applied sudden brakes of the truck and motorcyclists had also applied brakes in order to avoid collision. He further stated that speed of the motorcycle was around 30-40 km/hour and speed of the offending truck prior to application of brakes by its driver was around 70-80 km/hour. He also stated that both the motorcycle riders wearing helmets. He also denied the suggestions that the motorcyclist was at a fast speed and both were not wearing helmets; site plan was not prepared at his instance; the motorcyclist was not driving motorcycle in his lane and that the above accident took place due to negligence of the motorcycle riders.
12. When the statement made by this witness is read in entirety, it inspires confidence and there is no reason or ground MACP Nos.17/15 & 18/15 Page no. 6 of 29 available to this tribunal to discard the same. He is found to be an independent witness of the accident as there is nothing on record to suggest that he was related to any of the two deceased or petitioners herein. His claim of witnessing of above accident is further substantiated by documents of the criminal case as he is found to be one of the witnesses cited in charge-sheet of the criminal case, copy of which has been enclosed with the DAR. Hence, simply because he appeared before this tribunal on his own or on being asked by the petitioners and without any summons is not a ground to discard his testimony.
13. Further, though, R-3/Insurance Co. has examined on record, IO of the present case namely SI Deepak Panwar as R3W1 in an attempt to doubt the presence of this witness and also to make it to be a case of contributory negligence on the part of one of the motorcycle riders driving the same, but it is observed from perusal of testimony of the IO/R3W1 that the same does not serve the purpose of defence and rather, it corroborates the case of petitioners as well as of PW3 regarding his being an eye-witness of the above accident. Again, though the statement of IO suggests that the above witness, i.e. PW3, was not present when IO arrived at the spot on receiving information on the basis of a DD entry registered at PS about this accident, on receipt of a PCR call, but the statement of IO certainly reflects that PW3 was an eye-witness of the said accident and was also the PCR caller and IO has not only recorded statement of this witness during investigation, but also got verified the place of occurrence from this witness.
14. Further, during the course of his cross-examination conducted by Ld. Counsel for the petitioners, IO has also deposed about the statement under Section 161 Cr.P.C. dated 14.09.2014 of MACP Nos.17/15 & 18/15 Page no. 7 of 29 this witness recorded by him regarding the accident as Ex.R3W1/P-1 and this also substantiates the claim of petitioners and the above witness regarding the accident having been seen by him. Again, during his above cross-examination, IO also proved some other documents of the criminal case filed alongwith the DAR as part of the charge-sheet, which include a copy of notice under Section 133 of the MV Act as Ex.R3W1/P-2, its reply given by R-2 as Ex. R3W1/ P-3 as well as the site plan of place of occurrence as Ex. R3W1/P-4 and these documents also corroborate the case of petitioners on the above aspect and also about involvement of the offending truck and R-1 as its driver in the above accident. Simply because some photographs of the place of accident taken by the IO in his mobile got deleted by his mistake or could not be preserved is not a ground to doubt the place or manner of occurrence. Non seizure of helmets of the two motorcycle riders is also not fatal to the case of the petitioners as IO has also stated specifically that he had noticed some broken pieces of helmets at the spot of accident, though he did not seize them. In any case, it is well settled that the onus placed upon the petitioners for proving their case in this inquiry is only as per the principle of preponderance of probabilities and not by strict proof of the facts alleged. 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, 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. MACP Nos.17/15 & 18/15 Page no. 8 of 29
15. Though it is the contention of Ld.Counsel for R-3 that there is a material discrepancy in case of petitioners as the documents of criminal case do not show with certainty as to which of the two deceased was driving the motorcycle at the time of accident. On this aspect, it is observed that the investigation carried by the IO established that the motorcycle was being driven by the deceased Amokesh Bhatia, which fact has also been deposed by mothers of the two deceased in their respective affidavits. Moreover, it does not in any manner found to have been affecting the claim of the petitioners.
16. It is also the contention of Ld. Counsel for R-3 that the victim/deceased Amokesh Bhatia, who driving the motorcycle, was equally responsible for the accident as he failed to apply brakes of his motorcycle in time and rammed it against the offending truck from behind. Hence, he has argued that the contribution of above deceased in causing the accident has to be taken as 50% and he has also referred to some judgments on this aspect, though copies thereof have not been made available to this tribunal. On the other hand, Ld. Counsel for the petitioners has argued that in the absence of there being any clear and cogent evidence on record to establish contributory negligence on the part of deceased, no findings of contributory negligence can be arrived at. He has also referred to various judgments on the subject and made available copies thereof for perusal.
17. After going through the judgments being referred and the rival submissions being made by Ld. Counsels on this issue, this tribunal is of the considered opinion that since no evidence at all has been led on record by the respondents to establish any such contributory negligence on the part of the deceased Amokesh Bhatia, MACP Nos.17/15 & 18/15 Page no. 9 of 29 the above argument of Ld. Counsel for R-3 is not tenable, as has been held in catena of judgments by the Hon'ble Supreme Court, including Meera Devi & Anr. Vs. HRTC & & Ors. 2014 LawSuit (SC) 168, Sarla Devi & Ors. Vs. Divisional Manager, Royal Sundaram Alliance Insurance Co. Ltd. 2014 LawSuit (SC) 698 and Yerramma & Ors. Vs. G. Krishnamurthy & Anr., 2014 LawSuit (SC) 696 as well as by the different Hon'ble High Courts in judgments including Oriental Insurance Co. Vs. Bhupinder Kaur & Ors. 2014 LawSuit (Del) 638, National Insurance Co. Ltd. Vs. Sarita & Ors., 2014 LawSuit (Delhi) 1270 and Mithlesh & Anr. Vs. Rajesh Kumar & Ors. 2017 LawSuit (Del) 3724 etc., being relied upon by Ld. Counsel for the petitioners. In the present case, the depositions made by the eye-witness, i.e. PW3 Sh. Apoorva Sharma, clearly show that it was only the driver of offending truck, i.e. R-1, who was responsible for the above accident and even R-1 has not come forward to challenge the depositions made by PW3 or to allege contributory negligence part of the deceased Amokesh Bhatia. Hence, it is held that the above accident had taken place due to rash and negligent driving on the part of R-1 only.
18. Though it is also the contention of Ld. Counsel for R-3 that some contributory negligence on the part of deceased be taken as both the riders were not wearing helmets, but even this submission is not tenable as merely because of that no inference of rash and negligent driving on the part of deceased can be drawn. Reference in this regard can be made to judgment of the Hon'ble High Court in the case of India Lease Development Ltd. Vs. Savita & Ors. 2012 LawSuit (Del) 582, which has been relied upon by Ld. Counsel for the petitioners. Moreover, it has already been discussed above, the IO had noticed some broken pieces of helmets at the spot MACP Nos.17/15 & 18/15 Page no. 10 of 29 of accident, though he did not seize them in this case.
19. In view of the above, it is held that the oral and documentary evidence led on record establishes that the above said accident resulting into death of the deceased Amokesh Bhatia and Deepak Kumar was caused due to rash and negligence act of R-1 in driving the vehicle no. HR-55K-3040, which was owned by R-2 and insured with R-3 at the time of accident. This issue stands accordingly decided in favour of the petitioners and against the respondents.
20. ISSUE NO.2 In view of my findings on the above issue no.1, the petitioners of both the above petitions have become entitled to be compensated for the deaths of their above family members in the said accident, but the quantum of computation of compensation and liability to pay the same etc. are still required to be decided. The compensation to which the petitioners are entitled shall be as and under the following heads:-
21. COMPENSATION IN MACP No.17/15
(i) MEDICAL EXPENSES PW2 Smt. Naina Bhatia has tendered in her evidence, some medical bills of her deceased son as Ex.PW2/10 (colly). As already been discussed above, the accident in this case took place on 10.09.2014 and deceased Amokesh Bhatia expired on 06.10.2014. These medical bills and payment receipts Ex.PW2/10 (colly) produced by this witness are found pertaining to the said deceased and in respect of his treatment. These bills are totaling for a sum of Rs.15,016.40 only. Hence, the petitioners are held entitled to the said amount under this head.
MACP Nos.17/15 & 18/15 Page no. 11 of 29 (ii) LOSS OF DEPENDENCY
As already stated above, PW2 Smt. Naina Bhatia is the mother of deceased Amokesh Bhatia and she has tendered on record her examination in chief by way of an affidavit Ex.PW2/A. In the said affidavit, she has stated the deceased to be unmarried and his age to be 24 years and around one month and his date of birth to be 10.08.1990. She is also found to have tendered on record, inter- alia, a copy of their family ration card as Ex.PW2/1, a copy of election identity card of the deceased as Ex.PW2/7 and copies of secondary and senior secondary school examinations certificates of the deceased as Ex.PW2/8 (colly) & Ex.PW2/9 (colly). Though, in the documents Ex.PW2/1 and Ex.PW2/7, the date of birth of deceased is not mentioned, but in document Ex.PW2/8 (colly) his date of birth is also mentioned as 10.08.1990, as stated by PW2. Hence, going by the depositions made by PW2 and the document Ex.PW2/8 (colly), age of deceased at the time of accident comes to around 24 years and therefore, in terms of the law laid down by the Hon'ble Supreme Court in the case of Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr., (2009) 6 SCC 121, which has also been approved in the Constitution Bench decision of the Hon'ble Supreme Court in the case National Insurance Company Ltd. Vs. Pranay Sethi & Ors. SLP (Civil) No. 25590 of 2014, decided on 31.10.2017 and also reiterated by a Three Judges Bench of the Hon'ble Supreme Court in its subsequent judgment dated 09.02.2018 in Civil Appeal No. 7176/2015 in the case of Sube Singh & Anr. Vs. Shyam Singh (Dead) & Ors. and followed by the Hon'ble Delhi High Court in its various decisions, including the judgment dated 05.04.2018 passed in MACA No.94/18 in the case K.L. Jadhav & Ors. Vs. Abhishek & Ors., the multiplier of 18 on the MACP Nos.17/15 & 18/15 Page no. 12 of 29 basis of age of the deceased himself, and not according to the age of his parents, is held applicable in the present case.
As per the depositions made by PW2 in her above affidavit, her deceased son was working as a computer operator with M/s. Sharma Distributors at WZ-20A, Shop No.3, Asalat Pur Market, Janakpuri, New Delhi and was getting a salary of Rs.12,000/- pm. To substantiate the above claim, the petitioners have also examined one Sh. Vikas Sharma, proprietor of above firm as PW4. As per PW4, the deceased Amokesh Bhatia was working with his firm as computer operator w.e.f. July, 2012 till his accident on 09.09.2015, but as per the depositions made and documents Ex.PW4/4, Ex.PW4/5 & Ex.PW4/7 produced by him, the deceased was being paid a salary of Rs.10,000/- pm only, which were even less than the minimum wages applicable for matriculates in Delhi. As per the documents Ex.PW2/8 (colly) and Ex.PW2/9 (colly), the deceased has yet not passed his senior secondary examination and hence, he is held entitled to the minimum wages for matriculates, which at the relevant time were Rs.10,998/- pm. Hence, even despite the above evidence, the loss of dependency of the petitioners in this case is liable to be calculated at the above rate of minimum wages as no amount less than that can be legally accepted or acted upon by this tribunal.
Coming to dependency upon the deceased, it is found that this petition has been filed by the parents and younger sister of the deceased. During her cross examination, PW2 has submitted that she is a housewife and her husband/P-2 is a driver by profession, but she was not aware about income of her husband. However, in her examination conducted by this tribunal in terms of the directions given by the Hon'ble High Court on 11.01.2013 in MACA No.792/2006 titled as Oriental Insurance Co. Ltd. Vs Ranjit Pandey and MACP Nos.17/15 & 18/15 Page no. 13 of 29 Ors., she stated the income of her husband from profession of driver to be Rs.15,0000/- pm. Hence, in view of the above as well as the law laid down by the Hon'ble Supreme Court in the case of Sarla Verma (Supra), the father of deceased cannot be treated as a dependent. Though strictly speaking, even P-3 should be treated primarily a dependent upon her father only, i.e. P-2, but keeping in view the fact that she was younger sister of deceased and further that their father was not earning enough, she is also being treated as a dependent upon the deceased at the time of accident. In any case, in view of the law laid in the cases of Sarla Verma and Pranay Sethi & Ors. (Supra), 50% of earnings of the deceased will have to be deducted towards his personal and living expenses as he was unmarried. Further, in view of the law already discussed above, 40% of the above amount of earnings is also liable to be added as future prospects since he was below 40 years of age at the time of accident.
Thus, the loss of dependency qua deceased Amokesh Bhatia in the present case comes to Rs.16,62,897.60 (Rs.10,998/- X 140/100 X 50/100 X 12 X 18) and the said amount is awarded to the petitioners of this claim petition under this head.
(iii) COMPENSATION UNDER NON-PECUNIARY HEADS Since, the deceased was unmarried, in terms of the propositions of law already discussed above, the petitioners are also held entitled to amounts of Rs.15,000/- each under the heads of loss of estate and funeral expenses only and no compensation can be awarded to the petitioners under any other head like loss of love and affection etc. Hence, the petitioners of this petition are also entitled to a sum of Rs.30,000/- under the above two heads.
22. RELIEF MACP Nos.17/15 & 18/15 Page no. 14 of 29 The petitioners of MACP No.17/15 are thus awarded a sum of Rs.17,07,914/- (Rupees Seventeen Lacs Seven Thousand Nine Hundred and Fourteen only), alongwith interest @ 9% per annum, from the date of filing of DAR till deposit within 30 days from today or till notice of deposit is given to the petitioners, whichever is earlier, and 12% per annum if the deposit is made beyond 30 days from today. However, it is directed that the amount of interim award and interest for the suspended period, if any, during the course of this inquiry, shall be liable to be excluded from the above amount and calculations of compensation.
23. APPORTIONMENT As discussed above, since P-1/father of deceased is not considered as a dependent upon the deceased at the time of accident, the entire compensation amount is being awarded in favour of P-1 and P-3. Hence, out of the awarded amount, 80% amount is given to P-1 and remaining amount 20% amount is given to P-3.
24. RELEASE Out of share of P-1, 90% amount is directed to be kept with UCO Bank, Patiala House Court, New Delhi in MACAD in the form of monthly fixed deposit receipts (FDRs) payable in equal amounts for a period of 1 to 150 months in succession, as per the scheme formulated by the Hon'ble Delhi High Court vide order dated 01.05.2018 in FAO No. 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. The amount of FDRs on maturity would be released in the savings/MACT Claims SB Account No. 198301000003836 being maintained at Indian overseas Bank, D-Block, Janakpuri, New Delhi having IFSC No. IOBA0001983 and remaining 10% amount is directed to be released into her above MACP Nos.17/15 & 18/15 Page no. 15 of 29 said account.
Since P-3 has already attained majority, out of her share also, 90% amount is directed to be kept in an FDR for a period of 5 years or till her marriage, whichever is earlier, and the amount of said FDRs on maturity would be released in her savings/MACT Claims SB Account no. 198301000003837 being maintained at Indian overseas Bank, D-Block, Janakpuri, New Delhi having IFSC No. IOBA0001983 and remaining 10% amount is directed to be released into her above said account.
To facilitate deposits in the above scheme and disbursement of the awarded amount, P-1 & P-3 shall also open savings bank accounts in the UCO Bank, Patiala House Court, New Delhi in their names, if not opened earlier.
The above disbursement to the petitioners is, 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 their above shares.
The banks shall not permit any joint name (s) to be added in the savings bank accounts or MACAD scheme accounts of the petitioners i.e. the above account (s) of the petitioners shall be individual account (s) and not a joint account (s).
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.
The maturity amounts of the FDR (s) on monthly basis net of TDS be credited by Electronic Clearing System (ECS) in the above accounts of the petitioners near the place of their residence.
No loan, advance or withdrawal or pre-mature discharge MACP Nos.17/15 & 18/15 Page no. 16 of 29 be allowed on the MACAD without permission of the Court.
Petitioners have already produced before this tribunal their original passbooks of the above bank accounts near the place of their residences with requisite endorsements regarding non- issuance of ATM cards/cheque books in the said accounts. They have also filed copies thereof on record along with their aadhar cards and PAN cards. It is directed that the concerned banks shall not issue any cheque books and/ or ATM cards/debit cards to the petitioners in future also. However, the concerned banks shall permit the petitioners to withdraw money from their savings bank accounts by means of withdrawal forms or biometric authentication. 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.
25. COMPENSATION IN MACP No.18/15
(i) LOSS OF DEPENDENCY As already stated above, PW1 Smt. Urmila Devi is the mother of deceased Deepak Kumar and she has tendered on record her examination in chief by way of an affidavit Ex.PW1/A. In the said affidavit, she has stated the deceased to be unmarried and his age to be 17 years and around 5 months and his date of birth to be 07.04.1997. She is also found to have tendered on record, inter-alia, copies of their family ration card as Ex.PW1/1 and aadhar card, birth certificate & school leaving certificate of the deceased as Ex.PW1/4, Ex.PW1/5 and Ex.PW1/6 respectively. Though, in the documents Ex.PW1/1 and Ex.PW1/4 the date of birth of deceased is not MACP Nos.17/15 & 18/15 Page no. 17 of 29 mentioned, but in the documents Ex.PW1/5 & Ex.PW1/6 his date of birth is found mentioned as 07.04.1997. Hence, going by the depositions made by PW1 and the documents Ex.PW1/5 & Ex.PW1/6, the age of deceased at the time of accident comes to 17 years, 5 months and around 3 days. Hence, in terms of the law already discussed above, the multiplier of 18 is also held applicable in this petition.
As per the depositions made by PW1 in her above affidavit, her deceased son was working as a kitchen cook helper with M/s. Pummy Sweets, Mahipalpur, New Delhi and was getting a salary of Rs.12,000/- pm. However, no evidence to substantiate her above claim has been brought before this tribunal and during her cross examination, PW1 also admitted that she has not filed on record any income proof of her deceased son. Hence, earnings of the deceased Deepak Kumar are to taken as per the minimum wages prevailing at the time of accident for unskilled workers because he had left the school in 8 th standard and there is no other document on record to show as to whether he resumed his studies or not. The minimum wages for unskilled workers in Delhi at the time of accident were Rs. 9,048/- pm. Coming to dependency upon the deceased, it is found that this petition has been filed only by parents of the deceased. During her cross examination, PW1 submits that she is a housewife and her husband/P-2 is in private employment and earning a sum of Rs.5,000/- to Rs.6,000/- pm. However, during the course of their examination conducted by this tribunal in terms of the directions given by the Hon'ble High Court in the case of Ranjit Pandey (supra), they claimed that P-2 was not doing any working since demonetization and they both were entirely dependent upon earnings of their other son MACP Nos.17/15 & 18/15 Page no. 18 of 29 who is married. Hence, in view of the above as well as the law already discussed above, P-2 cannot be treated as a dependent upon the deceased. Since the deceased was unmarried, 50% of earnings of deceased will have to be deducted towards his personal and living expenses. Further, in view of the law already discussed above, 40% of the above amount of earnings is also liable to be added as future prospects since he was below 40 years of age at the time of accident.
Thus, the loss of dependency qua the deceased Deepak Kumar in the present case comes to Rs.13,68,057.60 (Rs.9,048/- X 140/100 X 50/100 X 12 X 18) and the said amount is awarded to the petitioners of this claim petition under this head.
(ii) COMPENSATION UNDER NON-PECUNIARY HEADS Since, the deceased was unmarried, in terms of the propositions of law already discussed above, the petitioners are also held entitled to amounts of Rs. 15,000/- each under the heads of loss of estate and funeral expenses only and no compensation can be awarded to the petitioners under any other head like loss of love and affection etc. Hence, the petitioners of this petition are also entitled to a sum of Rs.30,000/- under the above two heads.
26. RELIEF The petitioners of MACP No.18/15 are thus awarded a sum of Rs.13,98,058/- rounded off (Rupees Thirteen Lacs Ninety Eight Thousand and Fifty Eight only), alongwith interest @ 9% per annum, from the date of filing of DAR till deposit within 30 days from today or till notice of deposit is given to the petitioners, whichever is earlier, and 12% per annum if the deposit is made beyond 30 days from today. However, it is directed that the amount of interim award and interest for the suspended period, if any, during the course of this MACP Nos.17/15 & 18/15 Page no. 19 of 29 inquiry, shall be liable to be excluded from the above amount and calculations of compensation.
27. APPORTIONMENT As discussed above, since P-2/father of the deceased is not considered as a dependent upon the deceased at the time of accident, the entire compensation amount is being awarded in favour of P-1, i.e. mother of deceased.
28. RELEASE Out of the awarded amount, 90% amount is directed to be kept with UCO Bank, Patiala House Court, New Delhi in MACAD in the form of monthly fixed deposit receipts (FDRs) payable in equal amounts for a period of 1 to 200 months in succession, as per the scheme formulated by the Hon'ble Delhi High Court vide order dated 01.05.2018 in FAO No. 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. The amount of FDRs on maturity would be released in the savings/MACT Claims SB Account No. 532802010013353 being maintained at Union Bank of India, Janakpuri Branch, New Delhi having IFSC No. UBIN0553280 and remaining 10% amount is directed to be released into her above said account.
To facilitate deposits in the above scheme and disbursement of the awarded amount, P-1 shall also open savings bank account in the UCO Bank, Patiala House Court, New Delhi in her name, if not opened earlier.
The above disbursement to P-1, 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 from the awarded amount.
MACP Nos.17/15 & 18/15 Page no. 20 of 29 The banks shall not permit any joint name (s) to be added in the savings bank account or MACAD scheme account of the petitioner i.e. the above account (s) of the petitioner shall be individual account (s) and not a joint account (s).
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 petitioner.
The maturity amounts of the FDR (s) on monthly basis net of TDS be credited by Electronic Clearing System (ECS) in the above mentioned account of the petitioner near the place of her residence.
No loan, advance or withdrawal or pre-mature discharge be allowed on the MACAD without permission of the Court.
P-1 has already produced before this tribunal her original passbook of the above bank account near the place of her residence with requisite endorsements regarding non-issuance of ATM cards/cheque books in the said account. She has also filed copies thereof on record along with copies of her aadhar card and PAN card. It is directed that the concerned banks shall not issue any cheque book and/or ATM card/debit card to P-1 in future also. However, the concerned banks shall permit P-1 to withdraw money from her above savings bank account by means of withdrawal forms or biometric authentication. 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.
29. LIABILITY MACP Nos.17/15 & 18/15 Page no. 21 of 29 No violation on the part of R-2 of any terms and conditions of the insurance policy has been proved on record by R-3 to disentitle the petitioners of the above amounts of compensation. Hence, though otherwise R-1 to R-3 are all jointly and severally liable towards the petitioners, but R-3 being insurer of the offending vehicle is directed to pay and deposit the entire amount of compensation in these two petitions with the Manager, UCO Bank, Patiala House Court Branch, alongwith interest @ 9% per annum, by way of crossed cheques/DDs in name of the petitioners 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 petitioners/claimants and their counsels through registered posts that the cheques of the awarded amount are being deposited so as to facilitate them to collect their cheques/DDs.
30. The copy of this award be given to the parties free of cost. Ahlmad is directed to send the 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.
31. 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.
MACP Nos.17/15 & 18/15 Page no. 22 of 29
32. 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 10.09.2014
2. Date of intimation of the accident by Not given I.O. to the Claims Tribunal.
3. Date of intimation of the accident by Not given I.O. 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 (DAR) by IO before Claims 19.12.2014 Tribunal.
6. Date of service of DAR on Insurance 19.12.2014 Company
7. Date of service of DAR on 19.12.2014 claimant(s).
8. Whether DAR was complete in all Yes respects?
9. If not, state deficiencies in the DAR _____
10. Whether the police has verified the Yes documents file with DAR?
11. Whether there was any delay or deficiency on the part of the DARs have been filed after about 3 Investigating Officer? If so, whether months of the accident any action/direction warranted?
12. Date of appointment of Designated Not given Officer by the Insurance Company.
13. Name, address and contact number of the Designated Officer of Not given Insurance Co.
14. Whether the Designated Officer of the Insurance Company submitted his Delay in filing WS/reply report within 30 days of the DAR?
15. Whether the Insurance Company admitted the liability? If so, whether the Designated Officer of the Insurance Company fairly computed Legal offer not given 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 WS/reply Company? If so, whether any action/direction warranted?
MACP Nos.17/15 & 18/15 Page no. 23 of 29
17. Date of response of the claimant(s) of Legal offer not given the offer of the Insurance Company.
18. Date of the award 04.05.2019
19. Whether the award was passed with No the consent of the parties?
20. Whether the claimant(s) were directed to open savings bank Yes account(s) near 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 Card and the direction to 26.02.2018 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 25.02.2019 savings bank account near the place of their residence alongwith endorsement, PAN & Adhaar Cards?
23. Permanent Residential Address of the MACP No.17/15 Claimant(s) R/o. All R/o. RZ-51B, B-Block, Gali No. 7, Raghu Nagar, Delhi-110045.
Also at:-
RZ-32, I-Block, Gali No.6, West Sagarpur, Delhi-110046. Also at:-
C-121-123, Khasra No.61/1, Gali No.25, Harphool Vihar Jai Vihar, Phase-3, Nangli Vihar, Najafgarh, Baprola West, Delhi-110043.MACP No.18/15
R/o. RZ-K-26/233, J-Block, Gali No. 63, West Sagarpur, Delhi-110046. Also at:-
RZ-K-35, West Sagarpur, Delhi- 110046.
24. Details of savings bank account (s) of MACP No.17/15 the claimant(s) and the address of the P-1 = A/c. No. 198301000003836 bank with IFSC Code. P-3 = A/c. No. 198301000003837 Both being maintained at Indian overseas Bank, D-Block, Janakpuri, New Delhi having IFSC No. IOBA0001983.MACP No.18/15
P-1 = A/c No.532802010013353 being maintained at Union Bank of MACP Nos.17/15 & 18/15 Page no. 24 of 29 India, Janakpuri Branch, New Delhi having IFSC No. UBIN0553280.
25. Whether the claimant(s) savings bank account(s) is near his/her place of Yes residence?
26. Whether the claimant(s) were examined at the time of passing of Yes the award to ascertain his/their financial condition?
33. Files be consigned to Records after necessary formalities. Separate files be prepared for compliance report and be Digitally signed put up on 23.08.2019. MANOJ by MANOJ KUMAR KUMAR NAGPAL Date:
NAGPAL 2019.05.10
15:42:25 +0530
Announced in the open court. (M.K.Nagpal)
on 04.05.2019 PO/MACT, New Delhi
Encl: The summary of computation in the prescribed format in both the cases MACP Nos.17/15 & 18/15 Page no. 25 of 29 SUMMARY OF COMPUTATION OF AWARD AMOUNT IN FORM IV-A IN MACP NO. 17/15
1. Date of accident : 10.09.2014
2. Name of the deceased : Amokesh Bhatia
3. Age of the deceased : Around 24 years
4. Occupation of the deceased : 10th passed
5. Income of the deceased : As per Minimum wages
6. Name, age and relationship of legal representative of deceased:-
Srl. No. Name Age at present Relation
(i) Naina Bhatia 48 years Mother
(ii) Prerna Bhatia 20 years Younger sister
Computation of Compensation
Srl. No. Heads Amount Awarded
7. Income of the deceased (A) Rs.10,998.00
8. Add-Future Prospects (B) Rs.4,399.20
9. Less-Personal expenses of Rs.7,698.60
the deceased (C)
10. Monthly loss of dependency Rs.7,698.60
[(A+B) - C = D]
11 Annual loss of dependency Rs.92,383.20
(D x 12)
12 Multiplier (E) 18
13 Total loss of dependency (D Rs.16,62,897.60
x 12 x E = F)
14 Medical Expenses (G) Rs.15,016.40
15 Compensation for loss of Nil
love and affection (H)
16 Compensation for loss of Nil
consortium (I)
17 Compensation for loss of Rs.15,000/-
estate (J)
18 Compensation towards Rs.15,000/-
funeral expenses (K)
19 TOTAL COMPENSATION Rs.17,07,914/-
(F + G + H + I + J+K =L)
20 RATE OF INTEREST 9% pa from date of filing of
AWARDED DAR i.e. 19.12.2014 till 30
days from today and 12%
pa thereafter.
MACP Nos.17/15 & 18/15 Page no. 26 of 29
21 Interest amount up to the date Rs.6,72,543.78
of award (M)
22 Total amount including interest Rs.23,80,458/-
(L+M) (rounded off)
23 Award amount released P-1 = 10% of her share
P-2 = 10% of her share
24 Award amount kept in FDRs/ P-1 = 90% of her share
Motor Accident Claims P-2 = 90% of her share
Annuity Deposit (MACAD)
25 Mode of disbursement of the Through bank
award amount to claimant(s)
26 Next date for compliance of the 23.08.2019
award
Digitally signed
MANOJ by MANOJ
KUMAR
KUMAR NAGPAL
Date:
NAGPAL 2019.05.10
15:42:38 +0530
(M.K.Nagpal)
PO/MACT, New Delhi
04.05.2019
MACP Nos.17/15 & 18/15 Page no. 27 of 29
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN FORM IV-A IN MACP NO. 18/15
1. Date of accident : 10.09.2014
2. Name of the deceased : Deepak Kumar
3. Age of the deceased : Around 17 years
4. Occupation of the deceased : unskilled worker
5. Income of the deceased : As per Minimum wages
6. Name, age and relationship of legal representative of deceased:-
Srl. No. Name Age Relation
(i) Urmila Devi 52 years Mother
Computation of Compensation
Srl. No. Heads Amount Awarded
7. Income of the deceased (A) Rs. 9,048.00
8. Add-Future Prospects (B) Rs. 3,619.20
9. Less-Personal expenses of Rs. 6,333.60
the deceased (C)
10. Monthly loss of dependency Rs.6,333.60
[(A+B) - C = D]
11 Annual loss of dependency Rs.76,003.20
(D x 12)
12 Multiplier (E) 18
13 Total loss of dependency (D Rs.13,68,057.60
x 12 x E = F)
14 Medical Expenses (G) Nil
15 Compensation for loss of Nil
love and affection (H)
16 Compensation for loss of Nil
consortium (I)
17 Compensation for loss of Rs.15,000.00
estate (J)
18 Compensation towards Rs.15,000.00
funeral expenses (K)
19 TOTAL COMPENSATION Rs.13,98,058.00
(F + G + H + I + J+K =L) (rounded off)
20 RATE OF INTEREST 9% pa from date of filing of
AWARDED DAR i.e. 19.12.2014 till 30
days from today and 12%
pa thereafter.
MACP Nos.17/15 & 18/15 Page no. 28 of 29
21 Interest amount up to the date Rs.55,0528.43
of award (M)
22 Total amount including interest Rs.19,48,586/-
(L+M) (rounded off)
23 Award amount released P-1 = 10% out of awarded
amount.
24 Award amount kept in FDRs/ P-1 = 90% out of awarded
Motor Accident Claims amount.
Annuity Deposit (MACAD)
25 Mode of disbursement of the Through bank
award amount to claimant(s)
26 Next date for compliance of the 23.08.2019
award
Digitally
signed by
MANOJ
MANOJ KUMAR
KUMAR NAGPAL
Date:
NAGPAL 2019.05.10
15:42:49
+0530
(M.K.Nagpal)
PO/MACT, New Delhi
04.05.2019
MACP Nos.17/15 & 18/15 Page no. 29 of 29