Delhi District Court
Smt. Savitri (Mother) vs . on 25 April, 2018
IN THE COURT OF SH. M. K. NAGPAL PRESIDING
OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNAL :
PATIALA HOUSE COURTS, NEW DELHI
MACP NO. 535/16 & 534/16
SAVITRI & ORS. AND RAJ KUMAR KAJLA
VS.
NARENDER KUMAR & ORS.
MACP No. 535/16
1. Smt. Savitri (Mother)
W/o Sh. Raj Kumar Kajla
2. Sh. Raj Kumar Kajla (Father)
S/o Sh. Kunwar Pal Singh
Both R/o H.No. 208 Near Shiv Mandir, Birijvihar Colony
Muradnagar, Ghaziabad, UP.
Claimants/Petitioners
Versus
1. Sh. Narender Kumar (Driver)
S/o Sh. Om Parkash
H.No. 211, Gajpur Muradnagar,
Ghaziabad, UP.
2. Smt. Saru Tyagi (Owner)
W/o Sh. Subhash Chander Tyagi,
R/o H.No. 22, Sector-18,
Faridabad, Haryana.
3. M/s Bharti AXA General Insurance Co. Ltd. (Insurer)
701, 7th Floor, Mercantile House, 15 KG Marg,
Connaught Place, New Delhi-110001.
.....Respondents.
MACP Nos. 535/16 & 534/16 Savitri & Ors. & Raj Kumar Kajla Vs. Narender Kumar & Ors. Page no.1 of 34 MACP No. 534/16 Raj Kumar Kajla S/o Sh. Kunwar Pal Singh R/o H.No. 208 Near Shiv Mandir, Birijvihar Colony, Muradnagar, Ghaziabad, UP.
......Petitioner Versus
1. Sh. Narender Kumar (Driver) S/o. Sh. Om Parkash H.No. 211, Gajpur Muradnagar, Ghaziabad, UP.
2. Smt. Saru Tyagi (Owner) W/o Sh. Subhash Chander Tyagi, R/o H.No. 22, Sector-18, Faridabad, Haryana.
3. M/s Bharti AXA General Insurance Co. Ltd. (Insurer) 701, 7th Floor, Mercantile House, 15 KG Marg, Connaught Place, New Delhi-110001.
.....Respondents.
Date of filing of claim petitions : 28.09.2016
Date of framing of issues : 04.02.2017
Date of concluding arguments : 19.04.2018
Date of decision : 25.04.2018
AWARD/JUDGMENT
1. These two connected petitions bearing MACP Nos.
534/16 & 535/16 arise out of the same accident, which took place on 29.05.2016 at about 12.30 pm, within the jurisdiction of PS Moradabad, UP and regarding which one FIR No. 402/16 MACP Nos. 535/16 & 534/16 Savitri & Ors. & Raj Kumar Kajla Vs. Narender Kumar & Ors. Page no.2 of 34 under Sections 279/338/304-A IPC was registered at the above police station. The offending vehicle involved in these petitions is stated to be one Maruti Swift car bearing registration no. HR- 51AY-5158, which at the relevant time of accident was allegedly being driven by R-1, owned by R-2 and insured with R-3.
2. The claim in MACP No. 534/16 is in respect of grievous injuries suffered by the petitioner Sh. Raj Kumar Kajla and the claim in other petition bearing MACP No. 535/16 is in respect of death of his son namely Sh. Deep Raj Kajla in the said accident. In MACP No. 534/16, the petitioner Sh. Raj Kumar Kajla is the sole claimant, whereas in the other petition, he as well as his wife Smt. Savitri are the claimants.
3. Brief facts of the case, as per the petitioners, are that on the above date of accident, the petitioner Sh. Raj Kumar Kajla was riding on pillon on one motorcycle bearing registration no. UP-13X-1090 being driven by his deceased son Sh. Deep Raj Kajla and they both were coming to Muradnagar from Rawli, when another motorcycle bearing registration no. UP-14AY-7694 coming from the opposite side from Muradnagar to Rawli was suddenly hit by the offending Swift car and the said motorcycle had then collided with the motorcycle being driven by the deceased. As a result thereof, both the petitioner Sh. Raj Kumar as well as his son had fallen down on the road and suffered injuries. They were taken to government hospital/MMG Hospital, Ghaziabad, where son of the petitioner was declared brought MACP Nos. 535/16 & 534/16 Savitri & Ors. & Raj Kumar Kajla Vs. Narender Kumar & Ors. Page no.3 of 34 dead and the nature of injuries of the petitioner was subsequently given as grievous as he was found to have suffered a fracture injury.
4. These petitions were filed before this tribunal on 28.09.2016 and on being issued notices of the petition, appearance as well as written statement/replies have been filed before this tribunal on behalf of all three respondents.
5. R-1 & R-2 in their joint written statement/reply have though admitted that the above offending car was in possession of R-1 as a driver on the relevant date and time of accident and the same was owned by R-2, but it is their submission that no accident took place with their car and the accident, if any, had taken place between the above two above motorcycles and it took place either due to rash and negligent driving of the deceased himself or due to contributory negligence of drivers of both the motorcycles. It has further been submitted by them that they had already lodged a complaint in this regard before the SSP concerned alleging their false implication in the present case. It is also submitted that their above car was duly insured with R-3 on the date of accident and besides the above, an objection regarding the territorial jurisdiction of this tribunal has also been taken by these respondents.
6. R-3/Insurance company in its reply has admitted the fact that the offending car was insured with them on the date of accident, but like the other two respondents, they have also MACP Nos. 535/16 & 534/16 Savitri & Ors. & Raj Kumar Kajla Vs. Narender Kumar & Ors. Page no.4 of 34 denied the facts alleged by the petitioners regarding the above accident and also the manner in which it has taken place, while further disputing the territorial jurisdiction of this tribunal. It is further submitted that their liability to pay compensation, if any, is only as per the terms and conditions of the insurance policy.
7. Vide order dated 04.02.2017, both these claim petitions were directed to be consolidated for the purposes of trial and disposal and MACP No. 535/16 was directed to be treated as the lead case for the purposes of recording of evidence. The following consolidated issues were also framed on the same day for disposal of these claim petitions :-
1. Whether Sh. Raj Kumar Kajla (injured in the MACP No. 534/16) sustained injuries and Sh. Deep Raj Kajla (deceased in the MACP No. 535/16) sustained fatal injuries in the accident which occurred on 29.05.2016 at about 12.30 pm, at near Hanuman Mandir, Rawli Road, Ghaziabad, UP caused by rash and negligent driving of vehicle No. HR-51AY-5158 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. Vide another order dated 26.07.2017, an interim award under Section 140 of the MV Act for Rs. 50,000/- was also passed in favour of the petitioners in MACP No. 535/16 pertaining to death of the deceased Sh. Deep Raj Kajla and out of this amount, Rs.
MACP Nos. 535/16 & 534/16 Savitri & Ors. & Raj Kumar Kajla Vs. Narender Kumar & Ors. Page no.5 of 34 40,000/-, along with interest, were awarded to his mother Smt. Savitri/petitioner no. 1 of the said MACP and Rs. 10,000/-, along with interest, were awarded to the petitioner no. 2 Sh. Raj Kumar Kajla, the father of the deceased. The entire amount of interim award was directed to be released and the said order stands already complied with by R-3.
9. I have heard the arguments advanced by Sh. Mohd. Rafi, Ld. Counsel for the petitioners and Sh. Kamaldeep, Ld. Counsel for R-3. However, none has turned up on behalf of R-1 & R-2 subsequent to filing of their written statement/reply to cross examine the witnesses produced by the petitioners or to address any arguments. I have also carefully perused the entire material available on record.
10. My issue-wise findings are as under:-
ISSUE No. 111. It is well settled that the procedure followed for proceedings conducted by an accident tribunal is similar to that followed by a civil court and in civil matters the facts are required to be established by preponderance of probabilities only and not by strict rules of evidence or beyond reasonable doubts as are required in a criminal prosecution. The burden of proof in a civil case is never as heavy as that is required in a criminal case, but in a claim petition under the Motor Vehicles Act, this burden is infact even lesser than that in a civil case.
12. Reference in this regard can be made to the MACP Nos. 535/16 & 534/16 Savitri & Ors. & Raj Kumar Kajla Vs. Narender Kumar & Ors. Page no.6 of 34 propositions 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 also 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).
13. The petitioners in support of their claims have examined on record total two witnesses and PW1 is the petitioner no. 1 Sh. Raj Kumar Kajla himself and PW2 is his wife Smt. Savitri, i.e. the petitioner no. 1 of MACP No. 535/16. As stated above, they are parents of the deceased Sh. Deep Raj Kajla and besides this, Sh. Raj Kumar Kajla is also the sole claimant of MACP No. 534/16. They both have duly tendered on record their examinations-in-chief by way of their respective affidavits Ex. PW1/A and Ex. PW2/A and have further tendered and relied upon certain documents in support of their claims. However, admittedly, since PW2 Smt. Savitri is not an eye witness of the accident, it is the testimony of PW1 only which is relevant for determination of the alleged rashness and negligence on the part of R-1 in driving the above offending car and causing the said accident.
14. On perusal of the evidence led on record, it is observed that in his above affidavit Ex. PW1/A, PW1 Sh. Raj Kumar Kajla has specifically stated on record that on 29.05.2016, at about 10.30 pm, he along with his son was coming to Muradnagar from Rawli on motorcycle bearing registration no. UP-13X-1090 and the MACP Nos. 535/16 & 534/16 Savitri & Ors. & Raj Kumar Kajla Vs. Narender Kumar & Ors. Page no.7 of 34 said motorcycle was being driven by his son and he himself was on pillion. He has also stated specifically that another motorcycle bearing registration no. UP-14Y-7694 was coming from Muradnagar to Rawli side and this motorcycle was suddenly hit by the offending Swift car bearing registration no. HR-51AY-5158 and due to this hitting, this motorcycle collided with the motorcycle of his son and because of this, their motorcycle as well as they both fell on the road and sustained severe injuries all over their bodies. He further stated specifically that they were taken to government/MMG Hospital, Ghaziabad and doctors of MMG Hospital attended him, but his son was declared brought dead. He further stated that he had sustained grievous injuries in the above accident. Apart from the above oral depositions, this witness has also tendered on record certified copies of some documents forming record of the above criminal case registered about this accident as Ex. PW1/4 (colly), which consist of certified copies of the FIR and charge-sheet of that case, statement of PW1 recorded by IO of the said case, mechanical inspection reports of the three vehicles, postmortem report of deceased and site plan etc.
15. Though, an opportunity was duly given to the respondents for cross-examination of the above PWs, but as already discussed, R-1 & R-2 have not come forward to avail this opportunity and to cross-examine these witnesses. Further, though PW1 was cross-examined at length on behalf of R-3, but nothing material could be extracted out from him during his such cross-
MACP Nos. 535/16 & 534/16 Savitri & Ors. & Raj Kumar Kajla Vs. Narender Kumar & Ors. Page no.8 of 34 examination to challenge or controvert his depositions made regarding the above manner of accident. He being the injured of the case is the best witness to depose in the matter as his presence at the time of accident is not under doubts. Though, he was suggested by the Ld. Counsel for R-3 that the above accident was not caused by the above offending car or that it was caused due to negligent driving of motorcycle by his deceased son, but these suggestions were specifically denied by the witness as wrong.
16. It is the argument of Ld. Counsel for R-3 that even if the depositions of this witness are believed for a moment, the same are not sufficient to prove that the said accident took place due to rash and negligent driving of the above offending car by R-1 as his testimony is directly in conflict and contradiction to the documentary evidence which the petitioners themselves have led on record. It is his submission that as per the certified copies of the FIR of the criminal case, statement of PW1 recorded by the IO, on which the said FIR was registered, as well as that of the mechanical inspection reports of the above three vehicles, the said accident took place between the above two motorcycles only and it also took place due to rash and negligent driving of the other motorcycle bearing registration no. UP-14AY-7694 being driven by some other person. It is so because in the above FIR and statement of PW1/complainant, he himself stated so and further in the mechanical inspection reports of the above three vehicles, no MACP Nos. 535/16 & 534/16 Savitri & Ors. & Raj Kumar Kajla Vs. Narender Kumar & Ors. Page no.9 of 34 damage is shown to have been caused to the offending car, though, extensive damages are shown to be there on the two motorcycles. As stated above, the certified copies of all these documents have been tendered on record by the petitioner no.1/PW1 himself as part of the documents Ex. PW1/4 (colly) and are their relied upon documents.
17. However, apart from the above documents, these documents also consist of a certified copy of the charge-sheet ultimately prepared and filed in the above criminal case and it is found that this charge-sheet has been filed against R-1 only and the offending vehicle finally implicated in the above criminal case is the above car bearing registration no. HR-51AY-5158 and not the other motorcycle bearing registration no. UP-14AY-7694. FIR always does not contain the true picture or reflection of the events and even the complainant/PW1 may have been under an impression that the said accident was caused due to rash and negligent driving of driver of the other motorcycle as it was the other motorcycle which had ultimately collided with the motorcycle being driven by his son and the offending car did not directly hit or struck against their motorcycle. However, his above impression has been subsequently found to be false as the investigation of the said case, which finally culminated in filing of a charge-sheet or final report under Section 173 Cr.P.C, admittedly implicates the above car as the offending vehicle and R-1 as the offender. The petitioner/PW1 could have well been confronted with the contents MACP Nos. 535/16 & 534/16 Savitri & Ors. & Raj Kumar Kajla Vs. Narender Kumar & Ors. Page no.10 of 34 of his above statement made to the IO about the manner of accident, but it has not been done and in absence of that no weightage to the same can be given by this tribunal. Hence, the contents of the above charge-sheet duly corroborate the oral testimony of PW1 brought on record on this aspect and the other documents or discrepancies being pointed out by the Ld. Counsel for R-3 can be safely ignored. It is so because the legal position on this aspect has already been discussed above and it is to the effect that the facts in this inquiry are not required to be proved by strict rules of evidence and the same are required to be proved by preponderance of probabilities only.
18. Recently also, in one other case Mangla Ram Vs. Oriental Insurance Co. Ltd., 2018 Law Suit (SC) 303, decided on 06.04.2018, the Division Bench of the Hon'ble Supreme Court has again upheld and reiterated the above legal position while making the following observations :-
"21.Another reason which weighed with the High Court to interfere in the First Appeal filed by respondent Nos.2 & 3, 26 was absence of finding by the Tribunal about the factum of negligence of the driver of the subject jeep. Factually, this view is untenable. Our understanding of the analysis done by the Tribunal is to hold that Jeep No. RST4701 was driven rashly and negligently by respondent No.2 when it collided with the motorcycle of the appellant leading to the accident. This can be discerned from the evidence of witnesses and the contents of the chargesheet filed by the police, naming respondent No.2. This Court in a recent decision in Dulcina Fernandes (supra), noted that the key of negligence on the part of the driver of the offending vehicle as set up by the claimants was required to be decided by the Tribunal on the touchstone of preponderance of probability and certainly not by standard of proof beyond reasonable doubt. Suffice it to observe that the exposition in the judgments already adverted to by us, filing of chargesheet against respondent No.2 prima facie points towards his complicity in driving the vehicle MACP Nos. 535/16 & 534/16 Savitri & Ors. & Raj Kumar Kajla Vs. Narender Kumar & Ors. Page no.11 of 34 negligently and rashly. Further, even when the accused were to be acquitted in the criminal case, this Court opined that the same may be of no effect on the assessment of the liability required in respect of motor accident cases by the Tribunal. Reliance placed upon the decisions in Minu B Mehta (supra) and Meena Variyal (supra), by the respondents, in our opinion, is of no avail. The dictum in these cases is on the matter in issue in the concerned case. Similarly, even the dictum in the case of Surender Kumar Arora (supra) will be of no avail. In the present case, considering the entirety of the pleadings, evidence and circumstances on record and in particular the finding recorded by the Tribunal on the factum of negligence of the respondent No.2, the driver of the offending jeep, the High Court committed manifest error in taking a contrary view which, in our opinion, is an error apparent on the face of record and manifestly wrong."
19. Moreover, R-1 was the best witness who could have challenged the testimony of PW1 with regard to the above manner of accident, but for the reasons best known to him, he has chosen not to do so and an adverse inference can also be drawn against the respondents on this aspect, in view of the law laid down in the case of Cholamandalam M.S. General Insurance Company Ltd. Vs. Kamlesh, reported in 2009 (3) AD (Delhi) 310. R-1 & R-2 have even not come forward to substantiate their defence of false implication and to prove the complaint allegedly made by them to the local police about their false implications.
20. Hence, in view of the above factual and legal discussion, it is held that the oral evidence led on record by the petitioners is duly substantiated by the documentary evidence and it stands proved that the above accident resulting into death of deceased Sh. Deep Raj Kajla was caused due to rash and negligent driving of R-1 in driving the above offending car bearing registration no. HR-51AY-5158, which was owned by R-2 and MACP Nos. 535/16 & 534/16 Savitri & Ors. & Raj Kumar Kajla Vs. Narender Kumar & Ors. Page no.12 of 34 insured with R-3. This issue is accordingly decided in favour of the petitioners and against the respondents.
21. ISSUE NO.2 "Whether the petitioners are entitled for compensation? If so, to what amount and from whom? OPP As the rashness and negligence on the part of driver of the above offending vehicle/R-1 has been satisfactorily proved, the petitioners in both the claim petitions have become entitled to be compensated for the death of the deceased Deep Raj Kajla and for injuries to Sh. Raj Kumar Kajla in the above accident, but the computation of compensation and liability to pay the same are still required to be decided.
Before proceeding further, it is necessary to mention here that Ld. Counsel for R-3 has also challenged the territorial jurisdiction of this tribunal on the ground that the accident in this case took place at Muradnagar, the petitioners are also resident of Muradnagar, R-1 & R-2 are also not residing within the jurisdiction of this tribunal and even the insurance policy of the offending vehicle was issued from their office at Faridabad, Haryana. However, this objection of Ld. Counsel for R-3 is held not tenable in view of propositions of law laid down in the case of Malati Sardar Vs. National Insurance Company Limited & Ors.,Civil Appeal No. 10 of 2016 (arising out of SLP (Civil) No. 27243 of 2015) as this tribunal is not expected to adopt a hyper technical approach in the MACP Nos. 535/16 & 534/16 Savitri & Ors. & Raj Kumar Kajla Vs. Narender Kumar & Ors. Page no.13 of 34 matter and no prejudice is going to be caused to R-3 if these petitions have been tried or are to be disposed off by this tribunal as one of the offices of R-3 is situated within the territorial jurisdiction of this tribunal.
The compensation to which the petitioner (s) is/are entitled shall be as under:-
22. COMPENSATION IN MACP No. 535/2016
(i) LOSS OF DEPENDENCY The deceased was admittedly unmarried at the time of accident. Though, PW1 in his above affidavit Ex. PW1/A is silent with regard to age of his deceased son at the time of accident, but the mother of the deceased/PW2 in her affidavit Ex. PW2/A has stated that her son was aged about 21 years at the time of accident and his date of birth is 24.08.1995. She has also stated that he was 12th pass and was pursuing BBA course at the relevant time and she further tendered on record some documents regarding the educational qualifications of the deceased as Ex. PW1/3 and Ex. PW1/4, which consist of copies of his 10th & 12th class certificates and marksheets and marksheets of passing 2nd and 5th semester examinations of BBA by the deceased. The date of birth of the deceased as mentioned in his 10th class certificate and marksheet is also the same as stated by this witness. The date of accident in this case is 29.05.2016 and hence, going by the oral and documentary evidence led on record, the age of deceased at the time of accident comes to around 21 years. Hence, in terms MACP Nos. 535/16 & 534/16 Savitri & Ors. & Raj Kumar Kajla Vs. Narender Kumar & Ors. Page no.14 of 34 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 been approved in the Constitution Bench decision of 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 again 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 in case of an unmarried deceased shall be as per the age of the deceased himself and not according to the age of his parents. Hence, the multiplier of '18' is applicable in the present case as the deceased was aged around 21 years at the time of his death.
As stated above, the deceased was 12th class pass and it has also been specifically stated by both the PWs that he was pursuing BBA course at the relevant time, which is stated to be a 3 years degree course (6 semesters). As stated above, the petitioners have also placed on record copies of a marksheet of the deceased showing that he had passed 5th semester examination of the said course. This marksheet is of the year 2014-15 and the accident took place in May 2016, but still the MACP Nos. 535/16 & 534/16 Savitri & Ors. & Raj Kumar Kajla Vs. Narender Kumar & Ors. Page no.15 of 34 petitioners have not filed on record any marksheet or certificate showing that their deceased son had actually completed the said course. In the absence of that, it is the contention of Ld. Counsel for R-3 that the earnings of the deceased should be taken only equivalent the minimum wages fixed for unskilled workers in Uttar Pradesh (U.P.) at the relevant time of accident. He has also relied upon a judgment of the Hon'ble Delhi High Court in case of HDFC Ergo General Insurance Co. Ltd. Vs. Lalta Devi & Ors., MAC. Appeal No. 640/2014, and has submitted that if the course being pursued or done by a claimant is not from any good institute or academic performance of a claimant/deceased is not good, then this tribunal should only take the minimum wages as earnings of the claimant or deceased and should not fix or conclude for any higher earnings notionally. It is necessary to mention her that as per the documents brought on record, the deceased was pursuing/pursued the above course of BBA from one HLM College, Ghaziabad, which is affiliated to Chaudhary Charan Singh University, Meerut and is not an institute of repute. It is also necessary to mention here that the total minimum wages, including Dearness Allowance (DA) as applicable on the basis minimum wages, for unskilled workers in the State of U.P., which is the native State of the deceased, are Rs.7107.64 (Rs.5750/- + 1357.64/-).
However, this tribunal is not satisfied with the above arguments or submissions being made by Ld. Counsel for R-3 and MACP Nos. 535/16 & 534/16 Savitri & Ors. & Raj Kumar Kajla Vs. Narender Kumar & Ors. Page no.16 of 34 is of the view that the above minimum wages cannot be taken or adopted for the purposes of calculations in the present case as a person who has done a professional course like BBA or was on the verge of its completion cannot be treated as par with a totally unskilled person involved in a labour work. Even the above judgment in case of Lalta Devi (supra), being relied upon by the Ld. Counsel for R-3 does not say or hold it and all that which can be gathered from the above judgment is that the notional income of the deceased in such a case has to be fixed reasonably while taking note of all the attending facts and circumstances, including nature of the course being pursued by the deceased, the institution from where it was being done and his future prospects with the said course etc. Ultimately, the basic cardinal principle which this tribunal has to keep in mind in every case is that the compensation which is to be granted to a claimant in such a case has to be just and reasonable. Hence, considering the entirety of facts and circumstances, this tribunal considers it just and reasonable to take the notional earnings of the deceased as Rs. 12,000/- per month.
Since the deceased was unmarried, in terms of the law laid down by the Hon'ble Supreme Court in the cases of Sarla Verma and Pranay Sethi & Ors. (Supra) etc., 50% of his earnings will be deducted towards his personal and living expenses. Further, in view of the above Constitution Bench decision in the case of Pranay Sethi (Supra) and the judgment dated 02.11.2017 of the Hon'ble Delhi High Court in MACA MACP Nos. 535/16 & 534/16 Savitri & Ors. & Raj Kumar Kajla Vs. Narender Kumar & Ors. Page no.17 of 34 No.798/2011 in the case Bajaj Allianz General Ins. Co. Ltd. Vs. Pooja & Ors., future prospects are also to be given in cases of persons working on fixed salary, those employed on contract basis and even to labourers working on minimum wages and hence, 40% of above amount of earnings is also liable to be added to earning of the deceased as future prospects since he was around 21 years of age.
Thus, the loss of dependency qua the deceased in the present case comes to Rs. 18,14,400/- (Rs.12,000/- X 140/100 X 50/100 X 12 X 18) and the said amount is being awarded to the petitioners under this head.
(ii) COMPENSATION UNDER NON-PECUNIARY HEADS The compensation to be granted in case of a death arising from a road accident under the non-pecuniary heads of loss of estate, loss of consortium, funeral expenses etc. came for active consideration before the Hon'ble Supreme Court in the above Constitution Bench judgment in the case of Pranay Sethi (Supra). Since, the deceased was unmarried, in terms of the propositions laid down by the Hon'ble Supreme Court in the said case, the petitioners are also held entitled to amounts of Rs. 15,000/- each under the heads of loss of estate and funeral expenses. However, no compensation can be awarded to the petitioners under any other head like loss of love and affection etc. being claimed by Ld. Counsel for the petitioners, in view of the law laid down in the MACP Nos. 535/16 & 534/16 Savitri & Ors. & Raj Kumar Kajla Vs. Narender Kumar & Ors. Page no.18 of 34 above judgment and also followed by the Hon'ble Delhi High Court in its various judgments, including the recent decision in the case of Pooja & Ors. (Supra). Hence, the petitioners are also awarded a total sum of Rs. 30,000/- under the above two heads, i.e. loss of estate and funeral expenses.
23. The petitioners in this MACP No. 535/16 are thus held entitled to the compensation as given in the following summary of computation in the prescribed format:-
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN FORM IV-A IN MACP No. 535/16
1. Date of accident :
29.05.2016
2. Name of the deceased :
Deep Raj Kajla
3. Age of the deceased 21 years :
4. Occupation of the deceased :
Professional
5. Income of the deceased :
Notional income taken as Rs.
12,000/- per month.
6. Name, age and relationship of legal representative of deceased:-
Srl. No. Name Age Relation
(i) Smt. Savitri 52 Mother
(ii) Sh. Raj Kumar Kajla 55 Father
Computation of Compensation
Srl. No. Heads Amount Awarded
7. Income of the deceased (A) Rs.12,000/-
8. Add-Future Prospects (B) Rs.4,800/-
9. Less-Personal expenses of Rs.8,400/-
the deceased (C)
10. Monthly loss of dependency Rs.8,400/-
[(A+B) - C = D]
MACP Nos. 535/16 & 534/16
Savitri & Ors. & Raj Kumar Kajla Vs. Narender Kumar & Ors. Page no.19 of 34
11 Annual loss of dependency (D Rs.1,00,800/-
x 12)
12 Multiplier (E) 18
13 Total loss of dependency (D x Rs.18,14,400/-
12 x E = F)
14 Medical Expenses (G) Nil
15 Compensation for loss of love Nil
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.18,44,400/-
(F + G + H + I + J+K =L)
20 RATE OF INTEREST AWARDED 9% pa from date of
filing of claim petition till
deposit in 30 days and
12% thereafter.
21 Interest amount up to the date of Rs.2,61,045.76/-
award (M)
22 Total amount including interest Rs.21,05,446/-
(L+M) (rounded off as Rs.
21,06,000/-)
23 Award amount released P-1 = Rs. 3,06,000/-
(amount of interim
award with interest to be
excluded from the above
amounts)
(see 'apportionment &
release' clauses in the
succeeding paragraphs)
24 Award amount kept in FDRs P-1 = Rs. 18,00,000/-
(see 'apportionment &
release' clauses in the
MACP Nos. 535/16 & 534/16
Savitri & Ors. & Raj Kumar Kajla Vs. Narender Kumar & Ors. Page no.20 of 34
succeeding paragraphs)
25 Mode of disbursement of the Through bank
award amount to the claimant(s)
26 Next date for compliance of the 26.07.2018
award
The claimants/petitioners of MACP No. 535/16 are thus awarded a sum of Rs.21,06,000/- (Rupees Twenty One Lacs Six Thousand only), including interest @ 9% per annum from the date of filing of claim petition, i.e. 28.09.2016, till date and interest at the same rate till notice of deposit is given to the petitioners.
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.
24. APPORTIONMENT IN MACP NO. 535/16 Petitioner no. 2 Sh. Raj Kumar Kajla has himself claimed to be doing a private job and was thus not a dependent upon the deceased at the time of accident. Even otherwise, in the absence of any strong evidence led on record in this regard, he cannot be treated as a dependent upon his deceased son in view of the law laid down in case of Sarla Verma (Supra). Hence, the entire awarded amount of Rs. 21,06,000/- (Rupees Twenty One Lacs Six Thousand Rupees only), subject to adjustment of an amount of Rs. 10,000/- earlier given to petitioner no. 2 as his share of the interim award amount, is being given to the petitioner no. 1, i.e. mother of the deceased.
MACP Nos. 535/16 & 534/16 Savitri & Ors. & Raj Kumar Kajla Vs. Narender Kumar & Ors. Page no.21 of 34 25. RELEASE IN MACP NO. 535/16 Out of the above awarded amount, an amount of Rs. 3,06,000/-, (subject to adjustment of the amount of interim award with interest already granted vide order dated 26.07.2017) with upto date interest till deposit, is directed to be released to her by transferring it into her savings account bearing no.02732121056571 being maintained at Oriental Bank of Commerce, Ukhlarsi, Near Muradnagar Bus Stand, Ukhlarsi, Uttar Pradesh, IFSC Code:
ORBC0100273 and remaining amount of Rs.18,00,000/- is directed to be kept in 90 FDRs of Rs.20,000/- each for a period of 1 to 90 months in succession with cumulative interest. The amount of FDRs on maturity would be released in her above saving bank account.
It has been observed that though, the petitioner no. 1 has opened her bank account in terms of the order 31.01.2018 of this tribunal, but the necessary endorsements regarding non issuance of cheque books and ATM card etc. in the said account have yet not been made by the concerned Bank. Therefore, it is directed that the amounts as directed above shall be released/ disbursed to her only upon furnishing a copy of her passbook of the above said bank account with necessary endorsements. It is also directed that the concerned bank (s) shall not issue any cheque books and/or debit cards to claimant(s) in future also.
The banks shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the MACP Nos. 535/16 & 534/16 Savitri & Ors. & Raj Kumar Kajla Vs. Narender Kumar & Ors. Page no.22 of 34 claimant(s) i.e. the savings bank account(s) of the claimant(s) shall be individual savings bank account(s) and not a joint account(s).
The original fixed deposits shall be retained by the UCO Bank, PHC, New Delhi in safe custody. However, the statement containing FDRs numbers, FDRs amounts, dates of maturity and maturity amounts shall be furnished by bank to the claimant(s).
The maturity amounts of the FDR(s) be credited by Electronic Clearing System (ECS) in the above savings bank account of the claimant(s) opened near the place of his/her/their residence.
No loan, advance or withdrawal or pre-mature discharge be allowed on the fixed deposits without permission of the Court.
26. COMPENSATION IN MACP NO. 534/16 In terms of provisions contained in Section 168 of the MV Act the compensation which is to be awarded by this tribunal is required to be 'just'. In the injury cases a claimant is entitled to two different kinds of compensations i.e. pecuniary as well as non-
pecuniary damages. The pecuniary damages or special damages are those damages which are awarded and designed to make good the losses which are capable of being calculated in terms of money and the object of awarding these damages is to indemnify the claimant for the expenses which he had already incurred or is likely to incur in respect of the injuries suffered by him in the accident. The non-pecuniary or general damages are those damages which are incapable of being assessed by arithmetical calculations. The pecuniary or special damages generally include the expenses MACP Nos. 535/16 & 534/16 Savitri & Ors. & Raj Kumar Kajla Vs. Narender Kumar & Ors. Page no.23 of 34 incurred by the claimant towards his treatment, special diet, conveyance, cost of nursing/attendant, loss of income/earning capacity etc. and the non-pecuniary damages generally include the compensation for the mental or physical shock, pain and sufferings, loss of amenities of life, marriage prospects and disfiguration etc. The above categories falling under both the heads of compensation are not exhaustive in nature but only illustrative. It is also necessary to state here that no amount of money or compensation can put the injured/claimant exactly in the same position or place where he was before the accident and an effort is to be made only to reasonably compensate him or to put him almost in the same place or position where he could have been if the alleged accident had not taken place and this compensation is to be assessed in a fair, reasonable and equitable manner. The object of compensating him is also not to reward him or to make him rich in an unjust manner. It is also well settled that the 'just' compensation to be awarded to the claimant has to be calculated objectively and it may involve some guess work in calculating the different amounts which the claimant may be entitled under the different heads of compensation. Reference in this regard can be made some of the important judgments on the subject like the judgment in the case of R.D.Hattangadi Vs. Pest Control(India) Pvt. Ltd., AIR 1995, SC 755, Arvind Kumar Mishra vs. New India Assurance Company Limited, (2010) 10 SCC 254 and Raj Kumar Vs. Ajay Kumar & Anr.,(2011) 1 SCC
343. MACP Nos. 535/16 & 534/16 Savitri & Ors. & Raj Kumar Kajla Vs. Narender Kumar & Ors. Page no.24 of 34 In light of the above legal propositions and the fact that the petitioner has not suffered any disability in the accident, the 'just' compensation shall be as under:-
(i) Medical or treatment expenses As stated above, the claimant Sh. Raj Kumar Kajla of this petition had suffered grievous injuries in the above accident and he has, inter-alia, tendered on record some documents as Ex. PW1/1 to Ex. PW1/4 (colly). However, it is observed that besides the other documents, these consist of only a copy of his MLC as Ex. PW1/3 and few OPD cards as Mark X (colly) and though, in his affidavit, he has claimed that the medical bills are also part of these documents, but it is not found to be so. Hence, in the absence of their being any satisfactory evidence on record to substantiate his claims of spending Rs. 1,00,000/- on his treatment or bearing of any actual expenses by him on his treatment in respect of the above injuries, he is held not entitled to any amount under the present head.
(ii) Loss of actual earnings The claimant in his above affidavit Ex. PW1/A has stated that he was doing a private job and earning Rs. 15,000/- per month and he could not join his work for a period of around 6 to 8 months due to the said accident. He has also tendered on record a photocopy of one salary certificate in his name as Mark Y, which is found to be given by a partner of Narendra Plast Industries and it is stated therein that he was drawing a salary of Rs. 18,000/- per MACP Nos. 535/16 & 534/16 Savitri & Ors. & Raj Kumar Kajla Vs. Narender Kumar & Ors. Page no.25 of 34 month from the said firm while working as a supervisor in the firm since 01.12.2015. However, this certificate has not been proved on record as per law and the petitioner has also not called for any records or witness from the office of the above said firm to prove his above employment or salary. Moreover, it is also observed that even the above salary of Rs. 18,000/- of the claimant as per this certificate is against his oral depositions made in his above affidavit Ex. PW1/A, wherein he has stated that his earnings from the above private job are Rs. 15,000/- only and it is also found that though, the certificate is dated 20.01.2017, but the above affidavit of the petitioner is dated 26.07.2017, i.e. subsequent to the above certificate. He could not clarify the above discrepancy even during his cross-examination. Hence, in the absence of their being any satisfactory evidence on record about the earnings or education of the petitioner, his claim for actual earnings is required to be governed by the minimum wages for unskilled workers in force in U.P. at the relevant time of accident.
It is gathered from the records that the petitioner had suffered fracture of distal radius of his right wrist in the above accident and he had been under treatment for a considerable time. Thus, even in the absence of there being any specific evidence on record regarding the actual loss of salary or earnings of the petitioner, it is felt just and reasonable to award him an amount of Rs. 21,323/- (rounded off) (Rs.7107.64/- X 3) under this head, which is equivalent to two months earnings of an unskilled labourer MACP Nos. 535/16 & 534/16 Savitri & Ors. & Raj Kumar Kajla Vs. Narender Kumar & Ors. Page no.26 of 34 in U.P., including the DA, as per the rates prevalent at the relevant time.
(iii) Mental and Physical Shock, Pain and Sufferings, loss of amenities Since the petitioner had suffered fracture of distal radius of his right wrist, it is natural for the petitioner to have undergone severe mental and physical shock & pain and sufferings due to the above injury. Though, it is not possible to exactly compensate him for the mental and physical shock & pain and sufferings resulting from the above said injuries, but as already discussed above, an effort has to be made to compensate him for the same in a just and reasonable manner. Hence, it is felt just and reasonable to award him an amount of Rs. 15,000/- each under these two heads, i.e. mental and physical shock & pain and sufferings. Besides this, another amount of Rs. 5,000/- is also awarded to him towards loss of amenities during the above said period of his immobility and treatment. Therefore, a total amount of Rs.35,000/- is awarded to the petitioner under this head.
(iv) Conveyance, special diet and attendant charges In his above affidavit Ex.PW1/A, the petitioner has claimed that he spent Rs.50,000/- on special diet, Rs.50,000/- on conveyance and Rs. 30,000/- on attendant, but he has not brought on record any other evidence to corroborate his above said claims. However, still, it can be legitimately inferred by this tribunal that the petitioner might have required and taken good and nutritious diet MACP Nos. 535/16 & 534/16 Savitri & Ors. & Raj Kumar Kajla Vs. Narender Kumar & Ors. Page no.27 of 34 for early recovery from the injuries sustained in the above accident and he also might have spent a considerable amount in visiting the doctors frequently in connection with his treatment. Hence, the petitioner is also awarded an amount of Rs.10,000/- towards special diet and Rs. 5,000/- towards conveyance. It is also felt that payment of a lump-sum amount of Rs.10,000/- to the petitioner towards attendant charges or for the gratuitous services done by his family members during the period of his immobility shall be sufficient to meet the ends of justice. Hence, a consolidated amount of Rs.25,000/- is also being awarded to him under this head.
27. The petitioner in this MACP No. 534/16 is thus held entitled to the compensation as given in the following summary of computation in the prescribed format :-
SUMMARY OF THE COMPUTATION OF AWARD IN INJURY CASES IN FORM-IVB IN MACP No.534/16
1. Date of accident : 29.05.2016
2. Name of the injured : Sh. Raj Kumar Kajla
3. Age of the injured : 55 years
4. Occupation of the injured: unskilled labour
5. Income of the injured : As per minimum wage
6. Nature of injury : Grievous
7. Medical treatment taken by the injured : MMG Hospital, Ghaziabad.
8. Period of hospitalization : Nil
9. Whether any permanent disability? If yes, give details : Nil
10. Computation of Compensation Sr.No. Heads Amount awarded
11. Pecuniary Loss MACP Nos. 535/16 & 534/16 Savitri & Ors. & Raj Kumar Kajla Vs. Narender Kumar & Ors. Page no.28 of 34
(i) Expenditure on treatment Rs. Nil
(ii) Expenditure on conveyance Rs. 5,000/-
(iii) Expenditure on special diet Rs. 10,000/-
(iv) Cost of nursing/attendant Rs. 10,000/-
(v) Loss of earning capacity Nil
(vi) Loss of Income Rs.21,323/-
(rounded off)
(vii) Any other loss which may require Nil
any special treatment or aid to the
injured for the rest of his life
12. Non-pecuniary Loss:
(i) Compensation for mental and Rs. 15,000/-
physical shock
(ii) Pain and suffering Rs. 15,000/-
(iii) Loss of amenities of life Rs. 5,000/-
(iv) Disfiguration Nil
(v) Loss of marriage prospects Nil
(vi) Loss of earning, inconvenience, Nil
hardships, disappointment,
frustration, mental stress,
dejectment and unhappiness in
future life etc.
13. Disability resulting in loss of
earning capacity
(i) Percentage of disability assessed Nil
and nature of disability as
permanent or temporary
(ii) Loss of amenities or loss of Nil
expectation of life span on account
of disability.
(iii) Percentage of loss of earning Nil
relation to disability
(iv) Loss of future income Rs. Nil
MACP Nos. 535/16 & 534/16
Savitri & Ors. & Raj Kumar Kajla Vs. Narender Kumar & Ors. Page no.29 of 34
14. Total Compensation Rs. 81,323/-
15. Interest Awarded 9% per annum from
the date of filing of
claim petition till
deposit in 30 days
and 12% thereafter.
16. Interest amount up to the date of Rs.11,509.99/-
award
17. Total amount including interest Rs.92,833/-
(rounded off as Rs.
93,000/-)
18. Award amount released Entire amount released.
19. Award amount kept in FDRs Nil
20. Mode of disbursement of the Through bank award amount to the claimant (s)
21. Next date for compliance of the 26.07.2018 award The petitioner Sh. Raj Kumar Kajla of MACP No. 534/16 is thus awarded a sum of Rs. 93,000/- (Rupees Ninety Three Thousand only), including interest @ 9% per annum from the date of filing of claim petition, i.e. 28.09.2016, till date and interest at the same rate till notice of deposit is given to the petitioner. However, it is directed that 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.
28. RELEASE IN MACP NO. 534/16Entire awarded amount is directed to be released to him MACP Nos. 535/16 & 534/16 Savitri & Ors. & Raj Kumar Kajla Vs. Narender Kumar & Ors. Page no.30 of 34 by transferring it into his savings account bearing no. 02732010056750 being maintained at Oriental Bank of Commerce, Ukhlarsi, Near Muradnagar Bus Stand, Ukhlarsi, Uttar Pradesh, IFSC Code: ORBC0100273.
29. LIABILITY Though all the respondents are jointly and severally liable to pay the compensation, but R-3/Insurance Co. has not proved any violation of the terms and conditions of insurance policy and hence, being insurer of the offending vehicle, it is directed to deposit the above award amounts with UCO Bank, Patiala House Court Branch, alongwith interest @ 9% per annum, by way of crossed cheque/DD in name of the claimant (s) within 30 days from today failing which it is 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, Insurance Co. 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.5000/-.
Insurance Co. shall inform the claimant (s) and their counsels through registered post that the cheques of the awarded amounts are being deposited so as to facilitate them to collect their cheques.
MACP Nos. 535/16 & 534/16 Savitri & Ors. & Raj Kumar Kajla Vs. Narender Kumar & Ors. Page no.31 of 34 A copy of this award be given to the parties free of cost. Ahlmad is directed to send a copy of the award to Ld. Metropolitan Magistrate concerned and Delhi Legal Services Authority in view of Judgment titled as Rajesh Tyagi Vs. Jaibir Singh & Ors. passed in FAO no.842/2003 dated 12.12.2014.
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.
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 29.05.2016
2. Date of intimation of the accident by the NA as it is an outstation Investigation Officer to the Claims Tribunal. matter.
3. Date of intimation of the accident by the Investigating Officer to the Insurance NA company.
4. Date of filing of Report under Section 173 NA Cr.PC before the Metropolitan Magistrate.
5. Date of filing of Details Accident Report (DAR) by the Investigating Officer before Claims NA Tribunal.
6. Date of service of DAR on the Insurance NA Company.
7. Date of service of DAR on the claimant(s). NA
8. Whether DAR was complete in all respects? NA
9. If not, state deficiencies in the DAR ......
10. Whether the police has verified the documents NA file with DAR?
MACP Nos. 535/16 & 534/16 Savitri & Ors. & Raj Kumar Kajla Vs. Narender Kumar & Ors. Page no.32 of 34
11. Whether there was any delay or deficiency on the part of the Investigating Officer? If so, NA whether any action/direction warranted?
12. Date of appointment of the Designated Officer Not given by the Insurance Company.
13. Name, address and contact number of the Not given Designated Officer of the Insurance Company.
14. Whether the Designated Officer of the Insurance Company submitted his report NA within 30 days of the DAR?
15. Whether the Insurance Company admitted the liability? If so, whether the Designated Officer Legal offer not given of the Insurance Company fairly computed the compensation in accordance with law.
16. Whether there was any delay or deficiencies on the part of the Designated Officer of the NA Insurance Company? If so, whether any action/direction warranted?
17. Date of response of the claimant(s) of the offer No legal offer given of the Insurance Company.
18. Date of the award 25.04.2018
19. Whether the award was passed with the No consent of the parties?
20. Whether the claimant(s) were directed to open savings bank account(s) near their place of Yes 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 the 31.01.2018 bank not issue any cheque book/debit card to the claimant (s) and make an endorsement to this effect on the passbook(s).
22. Date on which the claimant(s) produced the 19.04.2018 passbook of their savings bank account near but endorsements have the place of their residence along with the not been made and endorsement, PAN Card and Adhaar Card? same have been directed to be made MACP Nos. 535/16 & 534/16 Savitri & Ors. & Raj Kumar Kajla Vs. Narender Kumar & Ors. Page no.33 of 34
23. Permanent Residential Address of the R/o H.No. 208 Near Shiv Claimant(s) Mandir, Birijvihar Colony, Muradnagar, Ghaziabad, UP.
24. Details of savings bank account (s) of the P-1 =02732121056571 claimant(s) and the address of the bank with P-2 = 02732010056750 IFSC Code. (Both at Oriental Bank of Commerce, Near Muradnagar Bus stand, Ukhlarsi, Uttar Pradesh IFSC Code:
ORBC0100273)
25. Whether the claimant(s) savings bank Yes account(s) is near his place of residence?
26. Whether the claimant(s) were examined at the time of passing of the award to ascertain No his/their financial condition?
30. Both the main files be consigned to Records after necessary formalities and the separate files be prepared for compliance report and be put up on 26.07.2018 for reporting compliance of the award.
Announced in the open court. (M.K.Nagpal) on 25.04.2018 PO/MACT, New Delhi MACP Nos. 535/16 & 534/16 Savitri & Ors. & Raj Kumar Kajla Vs. Narender Kumar & Ors. Page no.34 of 34