Delhi District Court
Lr'S Of Sanjay vs . Mahender & Ors. Page 1 Of38 on 28 May, 2022
LR's of Sanjay Vs. Mahender & Ors. Page 1 of38
IN THE COURT OF MS. JASJEET KAUR, PRESIDING OFFICER, MOTOR
ACCIDENT CLAIMS TRIBUNAL, NORTH WEST DISTRICT, ROHINI COURTS,
DELHI
New No.5652017
UNIQUE ID No. : DLNW010069772017
1. Smt. Pooja Devi W/o Late Sh. Sanjay,
(wife of deceased)
2. Sh. Arpit Kumar S/o Late Sh. Sanjay,
(son of deceased)
3. Sh. Puneet Kumar S/o Late Sh. Sanjay,
(son of deceased)
4. Sh. Jagdish Rai S/o Sh. Udho Das
(father of deceased)
5. Smt. Krishna Devi W/o Sh. Jagdish Rai
(mother of deceased)
All R/o C6/153C, Keshav Puram, Delhi.
........ Petitioners/claimants
Vs.
1. Sh. Mahender Kumar,
R/o Village Sironj, Tehsil Kishangarh,
District Ajmer, Rajasthan.
....... Driver /R1
2. Sh. Chhaju Lal Choudhary,
R/o Dhani Dabasowali,
Ward No.25, Shahpura, Rajasthan.
........ Owner/R2
3. United India Insurance Company Limited,
Delhi.
........ Insurance Co./R3
Other details
DATE OF INSTITUTION : 17.07.2017
DATE OF RESERVING JUDGMENT : 28.05.2022
DATE OF PRONOUNCEMENT : 28.05.2022.
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FORM - V
COMPLIANCE OF THE PROVISIONS OF THE MODIFIED CLAIMS
TRIBUNAL AGREED PROCEDURE TO BE MENTIONED IN THE
AWARD AS PER FORMAT REFERRED IN THE ORDER PASSED BY
THE HON'BLE DELHI HIGH COURT IN FAO 842/2003 RAJESH TYAGI
Vs. JAIBIR SINGH and ORS. VIDE ORDER DATED 07.12.2018.
1. Date of the accident 15.04.2016
2. Date of intimation of the accident by the 17.07.2017
investigating officer to the Claims Tribunal
3. Date of intimation of the accident by the 17.07.2017
investigating officer to the insurance company.
4. Date of filing of Report under section 173 Cr.P.C. Not mentioned in the
before the Metropolitan Magistrate DAR
5. Date of filing of Detailed Accident Information 17.07.2017
Report (DAR) by the investigating Officer before
Claims Tribunal
6. Date of Service of DAR on the Insurance Company 17.07.2017
7. Date of service of DAR on the claimant (s). 17.07.2017
8. Whether DAR was complete in all respects? Yes
9. If not, whether deficiencies in the DAR removed later N/A
on?
10. Whether the police has verified the documents filed Yes.
with DAR?
11. Whether there was any delay or deficiency on the N/A
part of the Investigating Officer? If so, whether any
action/direction warranted?
12. Date of appointment of the Designated Officer by the 17.07.2017
insurance Company.
13. Name, address and contact number of the Ms. Rita Jain, Advocate
Designated Officer of the Insurance Company.
14. Whether the designated Officer of the Insurance No
Company submitted his report within 30 days of the
DAR? (Clause 22)
15. Whether the insurance company admitted the Not fairly computed
liability? If so, whether the Designated Officer of the the compensation in
insurance company fairly computed the accordance with law.
compensation in accordance with law.
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16. Whether there was any delay or deficiency onthe N/A
part of the Designated Officer of the Insurance
Company? If so, whether any action/direction
warranted?
17. Date of response of the claimant (s) to the offer of Legal offer filed
the Insurance Company .
18. Date of the Award 28.05.2022
19. Whether the award was passed with the consent of No
the parties?
20. Whether the claimant(s) were directed to open Yes
saving bank account(s) near their place of residence?
21. Date of order by which claimant(s) were directed to 13.05.2019
open saving bank account (s) near his place of
residence and produce PAN Card and Aadhar Card
and the direction to the bank not issue any cheque
book/debit card to the claimant(s) and make an
endorsement to this effect on the passbook(s).
22. Date on which the claimant (s) produced the 02.08.2019
passbook of their saving bank account near the place
of their residence along with the endorsement, PAN
Card and Aadhar Card?
23. Permanent Residential Address of the Claimant(s) As mentioned above
24. Details of saving bank account(s) of the claimant(s) Petitioner Smt. Pooja,
and the address of the bank with IFSC Code savings bank a/c
no.38630718514, Arpit
Kumar, saving bank
a/c no.38631484288,
Puneet Kumar, saving
bank a/c
no.38580086519, Smt.
Krishna Devi, saving
bank a/c
no.38570225296 and
Jagdish Rai, saving
bank a/c
no.38557256549,
all with SBI, Keshav
Puram Branch, Delhi.
IFSC :SBIN0006813
25. Whether the claimant(s) saving bank account(s) is Yes
near his place of residence?
26. Whether the claimant(s) were examined at the time Yes
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of passing of the award to ascertain his/their
financial condition.
27. Account number/CIF No, MICR number, IFSC Code, 86143654123,
name and branch of the bank of the Claims Tribunal 110002427,
in which the award amount is to be SBIN0010323, SBI,
deposited/transferred. (in terms of order dated Rohini Courts, Delhi
18.01.2018 of Hon'ble Delhi High Court in FAO
842/2003 Rajesh Tyagi vs Jaibir Singh.
JUDGMENT
1. The present claim proceedings have emanated from the Detailed Accident Report (hereinafter referred to as DAR) filed on 17.07.2017 with reference to FIR No.88/17 registered for the commission of offences of causing hurt by rash and negligent driving punishable U/s 279/337 of Indian Penal Code (in short IPC) at PS Rani Bagh wherein subsequent charge sheet for the commission of offences of causing death not amounting to culpable homicide by rash and negligent driving of a motor vehicle on a public road punishable u/s 279/304A IPC against driver Mahender was also filed in respect of fatal injuries sustained by deceased Sanjay in a road traffic accident. The Ld. Predecessor of this court had vide order dated 09.01.2018 treated the DAR as petition u/s 166(4) of the Motor Vehicles Act, 1988 (in short referred to as 'M.V. Act').
2. The brief facts of the case as discernible from the DAR and the documents of the legal heirs of the deceased (hereinafter referred to as the petitioners/ the claimants or the "LRs of the deceased) are that on 15.04.2017, while travelling on his two wheeler scooter bearing registration No. DL6SD4564 at about 11:45 pm, upon reaching on Road No.43, near Haryana Maitri Bhawan, Rani Bagh, Delhi, the scooter of victim Sanjay had been hit by one truck bearing registration No.RJ52GA4354 (hereinafter referred as the 'offending vehicle'), which was being driven rashly and negligently by its driver/Mahender Kumar (hereinafter referred to as driver of the offending vehicle/respondent no.1/'R1') LR's of Sanjay Vs. Mahender & Ors. Page 4 of38 LR's of Sanjay Vs. Mahender & Ors. Page 5 of38 and as a consequence of a forceful hit by the offending truck, the deceased alongwith his two wheeler scooter had fell down on the road and he had sustained serious/grievous injuries all over his body. Thereafter public persons present at the spot had shifted the injured immediately to Bhagwan Mahavir Hospital, Pitampura, Delhi where from after first aid he was referred to Safdarjung Hospital at New Delhi. After some treatment, the victim was again shifted from Safdarjung Hospital to Moolchand Hospital, New Delhi and was subsequently taken to Dr. Ram Manohar Lohia Hospital, where he had expired during the course of treatment on 21.04.2017 at about 3:30 am.
2.1 The postmortem on the body of the deceased was conducted by Dr. Anshul Saxena, Senior Resident (Forensic Medicine) of Babu Jagjivan Ram Memorial Hospital(hereinafter referred to as BJRM Hospital), Delhi vide Postmortem Report (PMR) No.355/17 dated 22.04.2017 wherein the cause of death had been opined as septicemia.
3. R1/Mahender who was the driver of the offending vehicle and Sh. Chhaju Lal, owner of the offending vehicle(hereinafter referred to as respondent No.2/R2) had filed their joint written statement wherein they had claimed that the petition/DAR filed against them was not maintainable because the petitioners had not approached the Court with clean hands and had suppressed the real facts in relation to the alleged accident. They had further claimed in their defence that the alleged accident had not occurred due to their fault and negligence as R1 was driving the offending vehicle at a modest speed and was observing all traffic rules and norms. They had further averred in their written statement that the accident in question had occurred due to sole negligence and carelessness of the deceased himself. It had been further claimed in the written statement of R1 and R2 that the offending vehicle was insured on the date of occurrence of the case accident in the name of R2 with United India Insurance LR's of Sanjay Vs. Mahender & Ors. Page 5 of38 LR's of Sanjay Vs. Mahender & Ors. Page 6 of38 Company Limited/R3 vide policy bearing No.1404863116P117922888 having validity period commencing from 26.03.2017 and expiring on 27.03.2018.
4. United India Insurance Company Limited, the insurer of the offending vehicle (hereinafter referred to as Respondent no. 3/R3) had filed legal offer to settle the matter by paying a sum of Rs.14,60,224/ to the petitioners. However, the said offer was rejected by the petitioners.
5. From the pleadings of the parties, the following issues were framed by the learned Predecessor Court vide order dated 09.01.2018: (1) Whether on 15.04.2016 at about 12:00 (midnight) in front of Haryana Maitri Bhawan, Rani Bagh, Delhi Truck bearing registration No. RJ 52GA4354, which was being driven rashly and negligently by Mahender hit the scooter No.DL6SD4564 of Sh. Sanjay and caused his death? OPP (2). Whether petitioners are entitled to compensation, if so, to what amount and from whom? OPP (3) Relief.
6. After the framing of issues, opportunities were given to all the parties to prove their respective versions of the case by leading evidence in support of the same. The petitioners/ LRs of the deceased had examined four witnesses in support of their version of the case. Smt. Pooja Devi, wife of the deceased had been examined as PW1 whereas Sh. Digamber Singh, Sr. Executive from Mool Chand Hospital had been exained as PW2. Besides, Sh. Jitender Kumar, Record Assistant from R.M.L. Hospital had been examined as PW3 and eyewitness Sh. Akshay Jain S/o Sh. Vimal Jain had been examined as PW4 by the petitioners. No other witness had been examined by the petitioners/the LRs of deceased.
LR's of Sanjay Vs. Mahender & Ors. Page 6 of38 LR's of Sanjay Vs. Mahender & Ors. Page 7 of38 6.1 R1 and R2 had failed to appear before the Court on several dates of
hearing and they had been ultimately proceeded against exparte vide order dated 04.02.2019 6.2 A perusal of Court record reveals that respondents number 1 and 2 as well as respondent No.3/insurance company had not examined any witness in support of their respective versions of the case.
7. I have heard the final arguments addressed by Sh. R.K. Jain, learned counsel for the petitioners and Ms. Rita Jain, learned counsel for R3. My issue wise findings based on my appreciation of the evidence led by the parties in support of their respective versions of the case are reproduced herein below.
8. Issue wise findings are as under: ISSUES No. 1 (1) Whether on 15.04.2016 at about 12:00 (midnight) in front of Haryana Maitri Bhawan, Rani Bagh, Delhi Truck bearing registration No. RJ 52GA4354, which was being driven rashly and negligently by Mahender hit the scooter No.DL6SD4564 of Sh. Sanjay and caused his death? OPP The onus of proving this issue beyond preponderance of probabilities was upon the petitioners/ claimants.
8.1 The petitioners/ LRs of the deceased had examined four witnesses in support of their version of the case. Smt. Pooja Devi, wife of the deceased had been examined as PW1 whereas Sh. Digamber Singh, Sr. Executive from Mool Chand Hospital had been exained as PW2. Besides, Sh. Jitender Kumar, Medical Record Assistant from R.M.L. Hospital had been examined as PW3 and eyewitness Sh. Akshay Jain S/o Sh. Vimal Jain had been examined as PW4 by LR's of Sanjay Vs. Mahender & Ors. Page 7 of38 LR's of Sanjay Vs. Mahender & Ors. Page 8 of38 the petitioners. No other witness had been examined by the petitioners/the LRs of deceased.
8.2 PW1 Smt. Pooja Devi had deposed by way of affidavit Ex. PW1/A that her husband Sh. Sanjay Kumar had died in the case accident on 15.04.2017 at about 11.45 p.m. when he had been driving his Two Wheeler Scooter bearing registration No.DL6SD4564 on Road No.43, Near Haryana Maitri Bhawan, Rani Bagh, Delhi which had been hit by truck bearing registration No.RJ52GA4354 and her deceased husband was survived by five legal heirs including herself, her two sons, namely, Sh. Arpit Kumar and Sh. Puneet Kumar, her mother in law Smt. Krishna Devi and her father in law Sh. Jagdish Rai. She further deposed that after the case accident, her husband was shifted to nearby Bhagwan Mahavir Hospital, Pitam Pura, Delhi and after first aid, he was referred to Safdarjung Hospital at New Delhi wherefrom, he was further shifted to Mool Chand Hospital at New Delhi on 17.04.2017. She stated that subsequently her husband was again shifted to Dr. Ram Manohar Lohia Hospital(in short RML Hospital) where her husband had expired during the course of treatment on 21.04.2017 at about 3.30 a.m. due the grievous injuries sustained by him in the case accident. She stated that she could not collect and retain all the medical bills and receipts pertaining to the treatment of her deceased husband due to lack of knowledge. She also stated that the postmortem on the body of her deceased husband had been conducted at Babu Jagjivan Ram Memorial Hospital (in short BJRM Hospital) vide P.M. report No.355/17 dated 22.04.2017. She deposed that at the time of case accident, her son Arpit was doing B.Com. (Hons) from Shyam Lal College, Delhi University and her son Puneet Kumar was studying in class 12th from Open School, Delhi and his exams were scheduled to be held on 17.04.2017 and due to the grievous injuries sustained by his father in the case accident, her son Arpit could not clear his examination and had re LR's of Sanjay Vs. Mahender & Ors. Page 8 of38 LR's of Sanjay Vs. Mahender & Ors. Page 9 of38 appeared in the said examination in the year 2018. She stated that due the death of her husband, her son Puneet Kumar had lost his one year of study and she had spent more than Rs.50,000/ on his readmission charges, examination fees and tuition charges. She deposed at the time of case accident, her husband was aged about 44 years having date of birth 08.10.1972 and was having educational qualification of matriculation. She further deposed that her husband had also taken training in the trade of Electrical(work) from Directorate of Training and Technical Education, Government of National Capital Territory(NCT) of Delhi. She stated that her husband had enjoyed a good health and he was not having any vice or addiction. She further stated that at the time of case accident, her husband was doing the job of Electrical Contractor and was earning Rs.3,25,615/ per annum and he had been contributing about Rs.2,50,000/ per annum towards their household expenses. She had also filed on record copies of Income Tax Returns, TDS statement and Form 16 of her husband for the assessment years 20162017 and 20172018. She deposed that she along with other legal heirs of her deceased husband were financially totally dependent upon the income of the deceased. She also deposed that at the time of case accident, her deceased husband was having a valid and effective driving licence conferring authority upon him to drive a two wheeler scooter. She had relied upon the following documents in support of the case of the petitioners.
i. The original treatment papers of the deceased Sanjay running into 6 pages Ex.PW1/1.
ii. The original medical bills of the deceased running into 8 sheets Ex.PW1/2(colly).
iii. Other original medical bills and receipts filed by the IO along with DAR lying on the judicial file running 15 sheets Ex.PW1/3.
LR's of Sanjay Vs. Mahender & Ors. Page 9 of38 LR's of Sanjay Vs. Mahender & Ors. Page 10 of38 iv. List of medical bills Mark A. v. Photocopy of her Aadhar Card Ex.PW1/4(OSR).
vi. Photocopy of Aadhar Card of her son Arpit Kumar Ex.PW1/5(OSR).
vii. Photocopy of Aadhar Card of her son Puneet Kumar Ex.PW1/6(OSR).
viii.Photocopy of Aadhar Card of her parents in law running into two sheets Ex.PW1/7 and Ex.PW1/8.
ix. Photocopy of identity card issued from Shyam Lal College and admit card issued by Delhi University of her son Arpit running into two pages Ex.PW1/9.
x. Photocopies of Class XIIth examination Admit card of both years of her son Puneet Kumar running into two sheets Ex.PW1/10(colly).
xi. Photocopy of voter card and Aadhar card of her deceased husband running into two sheets Ex.PW1/11(colly).
xii. Photocopy of matriculation certificate of her deceased husband to prove his age Ex.PW1/12.
xiii. Photocopy of certificate of training issued by Government of National Capital Territory of Delhi directorate of Training and Technical Education Ex.PW1/13.
xiv.Copies of Income Tax Return for the assessment year 201617 and 201718 of her deceased husband running into 7 sheets and 9 sheets respectively Ex.PW1/14(colly and Ex.PW1/15(colly).
xv. Income Tax Assessment orders for both the abovementioned years Ex.PW1/16 and Ex.PW1/17 respectively.
xvi. Photocopies of PAN card of her deceased husband Ex.PW1/18.
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xvii. Photocopy of driving licence of her husband Ex.PW1/19.
xviii. Ten receipts of tuition fees and readmission of her son Puneet Kumar Ex.PW1/20(colly).
xix. DAR running into ten pages Ex.PW1/21(colly).
8.3 In her crossexamination by Ms. Rita Rani Jain, learned counsel for R3, PW1 had admitted that some of the documents which she had filed along with the affidavit had not been handed over to the IO at the time of investigation by the IO. She deposed that she had got married with her deceased husband in the year 1995 and at that time also, he was doing electrical work. She stated that her husband was doing private job as well as electrical work. She denied the suggestion that she had not told about the business of her husband to the IO and that is why IO had not mentioned about the business of the deceased in the DAR. She stated that the ITR had been filed through CA by her father in law and that she had not accompanied her father in law to the office of CA, however, she was aware of the contents of ITR. She deposed that the CA had calculated the income of her deceased husband as per the documents provided to him. She stated that her husband also used to get salary to the tune of Rs.15,000/ Rs.20,000/ per month from an office situated at Karol Bagh being run by one person, namely, Sh. Gautam Gambhir. She expressed her inability to tell whether she had filed any documents to prove the salary of her husband to the tune of Rs.15,000/ Rs.20,000/ per month. She deposed that her husband had not told her about his complete source of income etc. She stated that her father in law had gone to CA for calculation qua ITR and she had not accompanied him and as such, she was not in a position to tell the documents handed over to CA and whether those documents had been filed on record or not. She admitted that the ITRs Ex.PW1/14 and Ex.PW1/15 had been filed on the same day and had been signed by her on 10.07.2017. She also admitted that both the ITRs LR's of Sanjay Vs. Mahender & Ors. Page 11 of38 LR's of Sanjay Vs. Mahender & Ors. Page 12 of38 had been filed after the death of her husband. She expressed her inability to tell whether her husband used to file any ITR during his life time or not. She denied the suggestion that as the income of her husband was very less, as such, he had never filed any ITR. She also denied the suggestion that she had filed the two ITRs showing excessive income just to extract money from the insurance company. She denied the suggestion that she had not incurred Rs.4,00,000/ etc. on various heads as mentioned in para no.2 of her affidavit, as such, she was not a position to explain the said amount. She further denied the suggestion that she had got prepared the fee receipt of her son Ex.PW1/20(colly)(running into ten pages) on one and the same day.
8.4 R1 and R2 had failed to cross examine PW1 despite opportunity being granted to them by the Court to cross examine PW1. Hence, the cross examination of PW1 on behalf of R1 and R2 had been treated as Nil.
8.5 PW2 Sh. Digamber Singh, Sr. Executive from Mool Chand Hospital, New Delhi proved on record letter Ex.PW2/1 authorising him to depose before the Court. He had also proved on record an attested copy of the treatment record of deceased Sanjay Kumar Ex.PW2/2 to prove that deceased Sanjay Kumar had been admitted at their hospital on 16.04.2017 and discharged therefrom on 17.04.2017. He had also proved on record copy of the medical bills and receipts of deceased Sanjay Kumar Ex.PW2/3(colly). He deposed that the entire payment of Rs.2,03,605/ had been received by their hospital from the patient.
8.6 In his crossexamination by Ms. Rita Rani Jain, learned counsel for R3/insurance company, PW2 admitted that he had no personal knowledge of the case. He deposed that Ex.PW2/2 and Ex.PW2/3 had been certified by Dr. Madhu Handa, Medical Administrator.
8.7 R1 and R2 had failed to cross examine the PW2 despite opportunity being LR's of Sanjay Vs. Mahender & Ors. Page 12 of38 LR's of Sanjay Vs. Mahender & Ors. Page 13 of38
granted to them by the Court to cross examine PW2. Hence, the cross examination of PW2 on behalf of R1 and R2 had been treated as Nil.
8.8 PW3 Sh. Jitender Kumar, Medical Record Assistant from R.M.L. Hospital, Delhi had produced the summoned treatment record of patient Sanjay Kumar who had been admitted in their hospital on 17.04.2017 and had expired during the course of treatment on 21.04.2017. He had proved the treatment record of deceased Sanjay Kumar running into 68 sheets and 12 Xray plates Ex.PW3/1(colly).
8.9 In his crossexamination by Ms. Rita Rani Jain, learned counsel for R3/insurance company, PW3 admitted that he had no personal knowledge of the case.
8.10 R1 and R2 had failed to cross examine PW1 despite opportunity being granted to them by the Court to cross examine PW1. Hence, the cross examination of PW1 on behalf of R1 and R2 had been treated as Nil.
8.11 PW4 Sh. Akshay Jain S/o Sh. Vimal Jain had deposed by way of affidavit Ex.PW4/A, wherein he had reiterated the facts narrated in the claim petition by deposing that on 15.04.2017 after attending a function at Hotel Hyatt at Vasant Kunj, New Delhi, he was returning to his residence at Budh Vihar via Britannia Chowk on his motorcycle and at about 11.45 p.m., upon reaching on Road No.43, near Haryana Maitri Bhawan at Rani Bagh, Delhi, he had noticed that a truck bearing registration No.RJ52GA4354 being driven by its driver Mahender Kumar/R1 at a very high speed, rashly, and negligently in violation the traffic rules and without blowing any horn coming from behind had over taken him and had hit the back portion of a two wheeler scooter bearing registration No. DL 6SD4564 going ahead of him on the left front side of the said scooter as a consequence of which, Sh. Sanjay Kumar had fell down on the road and had LR's of Sanjay Vs. Mahender & Ors. Page 13 of38 LR's of Sanjay Vs. Mahender & Ors. Page 14 of38 sustained grievous injuries all over his body. He deposed that after the case accident, R1 had tried to flee from the spot of accident and he had chased the offending truck to some distance before the said truck had disappeared after entering into Patthar Market, Mangol Pur Village, Delhi, however, he had noted down the registration number of the offending ruck and had called police at 100 number before returning to his residence. He further deposed that at about 2.00 p.m, after receiving call from police, he had reached the spot of accident where ASI Sanwar Mal had met him and he (PW4) had informed IO ASI Sanwar Mal about the entire sequence of the accident apart from aprising him about the number of the offending truck. He stated that the IO had also recorded his statement. He deposed that the case accident had occurred solely and entirely due to rash and negligent driving of the offending vehicle by R1.
8.12 In his crossexamination by Ms. Rita Rani Jain, learned counsel for R3/insurance company, PW4 deposed that he was a Software Developer by profession and had been working in Wise Think Information Solutions Pvt. Ltd. situated at Gurgaon for the last one year and his working hours were from 10.00 am to 7.00 pm. He deposed that the accident in question had taken place on 15.04.2017 at about 11.45 pm. He stated that he was not a summoned witness and had come to depose in the Court at the request of the parents of the deceased. He deposed that he was not previously known to the family of the deceased and in fact he was neither aware about the family of the deceased nor about their financial status, educational status as well as their family income etc. He further deposed that there was a street light at the spot of accident and the number of the offending truck was RJ52GA4354. He stated that after the accident, he had chased the offending vehicle for about 2.5 kms and had noted down its registration number before making a call at 100 number. He deposed that he had not gone to the deceased for his help. He voluntarily stated that LR's of Sanjay Vs. Mahender & Ors. Page 14 of38 LR's of Sanjay Vs. Mahender & Ors. Page 15 of38 there were several persons present near the injured at the spot. He deposed that on 16.04.2017 at about 2.00 am(night), the police officials had called him and he had informed the police officials about the case accident and the registration number of the offending vehicle. He stated that he had never appeared in any other Court to give evidence except on the day of recording of his deposition in the present case. He deposed that his statement was recorded twice by the police officials and he had signed 34 pages. He denied the suggestion that he was not present at the spot at the time of occurrence of the case accident or that he had come to the court to depose in favour of the LRs of the deceased.
8.13 R1 and R2 had failed to cross examine PW4 despite opportunity being granted to them by the Court to cross examine PW4. Hence, the cross examination of PW4 on behalf of R1 and R2 had been treated as Nil.
8.14 R1/driver, R2/owner of the offending vehicle and R3/insurance company had failed to lead any evidence in support of respective versions of their case.
8.15 No contradictions or material discrepancies had appeared in the cross examination of PW1 Smt. Pooja Devi and eyewitness PW4 Akshay Jain to discredit their above said testimonies which were capable of demolishing the case of the petitioners to the effect that the case accident had occurred due to rash and negligent driving of the offending vehicle by R1 and the death of victim Sanjay Kumar had occasioned therefrom. The testimonies of PW1/Pooja Devi and PW4/Akshay Jain are reliable and they are trustworthy witnesses whose depositions had remained infallible during their lengthy crossexamination by the respondents. The circumstances in which the accident had occurred establish that it had occurred solely due to the rash driving of R1 at the above said date, time and place who had hit his vehicle against the scooter of the deceased from behind, thereby causing fatal injuries on the person of victim Sanjay Kumar.
LR's of Sanjay Vs. Mahender & Ors. Page 15 of38 LR's of Sanjay Vs. Mahender & Ors. Page 16 of38 8.16 In the facts and circumstances of the case, the charge sheet filed in FIR
No.1018/15 of PS Rani Bagh for the commission of offences punishable U/s 279/304A IPC against R1 in the Criminal Court can also be relied upon by this Tribunal for the purpose of corroboration of other evidence led by the petitioners in support of their version of the case and can thus lead this court to a finding to the effect that the case accident had occurred due to rash and negligent driving of the offending vehicle by R1. The copy of seizure memo of said offending vehicle make Maruti Ecco Car is also on record as part of the said chargesheet. A perusal of the mechanical inspection report of the said offending Ecco Car bearing registration No.DL1LS6512 reveals that the front bumper and left side body portion as well as left side head light, fander, bonnet and grill of the said car were damaged from the front side and were dislocated. It was also mentioned in the report of mechanical inspector that radiator bracket of the offending car was damaged and front wind screen glass of the said car was found broken. Also, as per the report of Mechanical Inspector, the engine of the offending car and its brakes as well as steering wheel were found to be in working condition and as such the offending vehicle was found to be fit for road test. Therefore, from a perusal of damages sustained by the offending vehicle on its front side, it can be safely concluded that the offending vehicle had hit against the vehicle of the victim from behind.
8.17 The postmortem on the body of the deceased was conducted by Dr. Anshul Saxena, Senior Resident (Forensic Medicine) of Babu Jagjivan Ram Memorial Hospital(hereinafter referred to as BJRM Hospital), Delhi vide Postmortem Report (PMR) No.355/17 dated 22.04.2017 wherein the cause of death had been opined as septicemia.
8.18 The issue no. 1 is only to be proved by claimants beyond preponderance of probabilities as distinguished from beyond reasonable doubt. In view of above LR's of Sanjay Vs. Mahender & Ors. Page 16 of38 LR's of Sanjay Vs. Mahender & Ors. Page 17 of38 said discussion, criminal case record including charge sheet and testimony of PW1 and PW4, it has been proved beyond preponderance of probabilities that the case accident had been caused by R1 who was driving the offending truck in a rash and negligent manner at the above said date, time and place and had hit the same against the scooter of the victim from behind thereby causing the death of victim Sanjay.
Issue no.1 is accordingly decided in favour of petitioners and against the respondents.
9. Issue No. (2) Whether petitioners are entitled to compensation, if so, to what amount and from whom? OPP 9.1 In view of my findings on issue no.1 regarding negligence of R1 resulting in the occurrence of the case accident, I am of the considered opinion that the petitioners/claimants are entitled to compensation in respect of demise of the victim Sanjay Kumar in the above mentioned road traffic accident, I shall now examine the entire evidence including the documents of the petitioners/claimants for the purpose of arriving at a finding about the quantum of compensation to which the petitioners/claimants are entitled.
9.2 Petitioners have examined four witnesses in support of their version of the case including PW1 Smt. Pooja Devi, who was the wife of the deceased and has made deposition regarding the income of the deceased at the time of his demise as well as regarding the contribution of the deceased towards the household expenses of her family by stating that the deceased was doing the job of Electrical Contractor and was earning Rs.3,25,615/ per annum and the deceased had been contributing about Rs.2,50,000/ per annum towards their household expenses. She had also filed on record copies of Income Tax Returns, TDS statement and Form 16 of her husband for the assessment years LR's of Sanjay Vs. Mahender & Ors. Page 17 of38 LR's of Sanjay Vs. Mahender & Ors. Page 18 of38 20162017 and 20172018. She deposed at the time of case accident, her husband was aged about 44 years having date of birth 08.10.1972 and was having educational qualification of matriculation. 9.3 PW1 Smt. Pooja Devi had withstood her crossexamination by the learned counsels for all three respondents.
9.4 The Matriculation marksheet of the deceased issued by Central Board of Secondary Education Ex.PW1/12 relied upon by the petitioners prima facie establishes that his date of birth was 08.10.1972 and as per DAR, the date of the case accident is 15.04.2017. Therefore, the deceased was about 44 years 6 months and 7 days old at the time of the occurrence of the accident in question.
9.5 From a perusal of court record it is evidence that PW1/Pooja Devi had relied upon income tax return of deceased, namely, Sanjay Kumar for the assessment year 20162017 filed on 10.07.2017 after the demise of the victim in order to prove the income of the victim. Learned counsel for the petitioner has submitted that although, the above said income tax returns had been filed after the demise of the victim, however, the same has been filed on 10.07.2017 within the period of limitation prescribed for filing of the same and accordingly the same are admissible in evidence of the petitioner. Learned counsel for petitioner has relied upon the observations made by the Hon'ble High Court of Delhi in the decided case of Dalvinder Kaur & Ors. Vs. United India Insurance Company Limited, 2011 ACJ 2133, decided by Hon'ble High Court of Delhi 25.03.2010 in support of his submission that the income tax returns of the deceased filed after the demise of the deceased can also be relied upon by this tribunal for computing the income of deceased.
Per contra, learned counsel for the insurance company has opposed the contention of learned counsel for the petitioner to the effect that the income tax returns filed after demise of the victim cannot be relied upon on the ground that LR's of Sanjay Vs. Mahender & Ors. Page 18 of38 LR's of Sanjay Vs. Mahender & Ors. Page 19 of38 the same had been deliberately filed with an intention to inflate the income of the deceased so as to compel the insurance company to pay out a higher amount of compensation. It has been thus submitted on behalf of the insurance company that the income of the deceased has been deliberately inflated to extort money from the insurance company towards compensation in respect of demise of the victim in the case accident. Learned counsel for the insurance company has further submitted that the present case is distinct in facts from the above cited case of the Dalvinder Kaur Vs United India Insurance Company(supra) wherein the deceased had been regularly paying income tax prior to his death and only the last income tax return of the deceased has been filed after his death. The Hon'ble High court of Delhi had found the said income tax return to be reliable because the same was part of a series of income tax returns which depicted a gradual increase in the income of the deceased and as such there was no reason to suspect its authenticity. It has been further submitted on behalf of the insurance company that in the present case both the income tax returns of the deceased had been filed after his death and there is no material on record to establish that the deceased had been filing income tax returns prior to his death.
9.6 I have considered the rival submissions of the parties in the light of law of precedents. In this context, it has been observed by Hon'ble Supreme Court of India in the case of V. Subbulakshmi & Ors Vs.Lakshmi & Anr on February 2008 Civil appeal No. 990 of 2008 decided on 05/02/2008 that the claims tribunal had rightly not relied upon the income tax return of the deceased filed after his death in a case pertaining to road traffic accident. Relevant extract of observations made in para 17 of the judgement passed in this case of V.Subbulakshmi & Ors Vs.Lakshmi & Anr(supra) is reproduced below in this context: LR's of Sanjay Vs. Mahender & Ors. Page 19 of38 LR's of Sanjay Vs. Mahender & Ors. Page 20 of38 "So far as the question in regard to the quantum of compensation awarded in favour of the appellants is concerned. We are of the opinion that the High Court has taken into consideration all the relevant evidences brought on record. The accident took place on 07.05.1997. Income tax returns were filed on 23.06.1997. The Income Tax Returns (Exp.P14), therefore, have rightly not been relied upon."
Although in the above cited case, Hon'ble Supreme Court of India had upheld the rejection of income tax returns filed after the demise of a victim of a road traffic accident, however, the Apex Court had nowhere observed in its judgment that income tax returns filed after demise of a victim of a road traffic accident can never be relied upon for the purpose of determination of income of the victim. In this context, while dealing with the issue of income tax returns filed after the demise of a victim of road accident, the Hon'ble High Court of Delhi had observed in the case of Oriental Insurance Company Ltd. Vs. Kanika Arora and others, MACT Appeal No.141/2012 decided on 27 th August, 2012 that although in the case of V.Subbulakshmi & Ors Vs.Lakshmi & Anr., the Hon'ble Apex Court had upheld the judgement Motor Accident Claims Tribunal whereby the Income tax returns filed after the demise of the victim had been rejected. However, the Hon'ble High Court of Delhi had clarified that the reliability of income tax returns filed after the demise of a victim of road traffic accident depends on the facts and circumstances of a case as well as the genuineness of the documents including income proofs filed in support of determination income and tax due on the same relied upon by the legal heirs of the victim at the time of filing his income tax return. The Hon'ble High Court had further clarified when tax had been deducted at source by the clients of the deceased prior to his death and advance tax had also been deposited by the deceased before his death. Then there was no ground to suspect the veracity of the income tax return filed after demise of the victim. Observations made in para 5 of the judgement LR's of Sanjay Vs. Mahender & Ors. Page 20 of38 LR's of Sanjay Vs. Mahender & Ors. Page 21 of38 passed in this case of Oriental Insurance Co. Ltd. vs. Kanika Arora and Others decided on 27th August, 2012 is reproduced below in this context: "5. I have before me the Income Tax Return for the A.Y. 2006 07 (for previous year 200506) Ex.PW1/9. It contains the details of the income tax returned. A perusal of the document Ex.PW1/10 (the details filed with the Income Tax Return) shows that a sum of `10,675/ was deducted at source by Essco Sanitation and a sum of `10,940/ was deducted as TDS by M/s. Jaquar & Co. Ltd. Advance Tax of `2,500/ was deposited by the deceased on 15.12.2005. Only a tax of `3,403/, out of a total tax of `27,518/ was deposited on 03.11.2006, that is, after the death of the deceased. In the circumstances, it could not have been said that the income was inflated by the legal representatives of the deceased after the death and thus the Claims Tribunal rightly granted the loss of dependency on the basis of Income Tax Return filed on 03.11.2006. In V. Subbulakshmi, it was not laid down as a proposition that the Income Tax Return filed after the death of the deceased cannot be taken into consideration at all. Since there is nothing to suspect the income returned in the Income Tax Return Ex.PW1/9, the Claims Tribunal rightly granted the loss of dependency on the basis of the aforementioned Income Tax Return. There is no ground to interfere with the impugned judgment."
9.7 In the case of Geeta and Others vs. Dinesh Kumar and others, 2015 Law Suit (DEL) 428, it was similarly observed by the Hon'ble High Court of Delhi that the income tax returns for a period of five years filed before the demise of the victim were depicting a gradual increase in his income and as such, there was no ground to suspect the last income tax returns filed by the legal representative of the deceased after his demise. Observations made in paras 10 and 11 of the judgement passed in this case of Geeta and Others vs. Dinesh Kumar and others(supra) are noteworthy in this context and are reproduced herein below: LR's of Sanjay Vs. Mahender & Ors. Page 21 of38 LR's of Sanjay Vs. Mahender & Ors. Page 22 of38 "10. In Oriental Insurance Company Limited v. Kanika Arora & Ors., MAC APP.141/2012, decided on 27.08.2012, this Court referred to the judgment of the Supreme Court in V. Subbulakshmi & Ors. v. S. Lakshmi & Anr.,(supra), and held that it was not laid down as a proposition of law that the ITRs filed after the death of the deceased cannot be taken into consideration at all.
11. In the instant case, the deceased filed ITRs for a period of about five years before his death and his income was gradually increasing. In the Assessment Year 20072008, he returned the income of Rs.1,51,250/. In the Assessment Year 20092010, he returned the income of Rs.1,80,370/ and for the Assessment Year 20102011, he returned the income of Rs.2,20,950/. The last ITR for the relevant period was filed on 29.07.2010 on behalf of the deceased by his legal representatives."
9.8 Likewise, it was also observed by the Hon'ble High Court of Delhi in the case of Dalvinder Kaur Vs. United India Insurance Company Limited 2011 ACJ 2133 DEL in para No.5 of the judgment that the filing of income tax return after the demise of deceased was no ground for disregarding the same particularly in view of the fact that the said income tax return had been filed within the prescribed period of limitation for filing the same and no evidence had been led in rebuttal by the respondents to show that the contents of the said income tax return were false or incorrect. Relevant extracts of observations made in para no.5 of the said judgment is reproduced herein below in this context: "5. The IncomeTax Return, PW2/7 filed on 30th September, 1999 has been perused. The said IncomeTax Return relates to the period 1st April, 1998 to 31st March, 1999 and the same was filed on 30th September, 1999 within the prescribed period of limitation for filing the IncomeTax Return. There is no rebuttal evidence by the LR's of Sanjay Vs. Mahender & Ors. Page 22 of38 LR's of Sanjay Vs. Mahender & Ors. Page 23 of38 respondent to show that the contents of the said Income Tax Return were not correct. The Claims Tribunal was in error in not taking the last IncomeTax Return of the deceased into account. The filing of IncomeTax Return after the death of the deceased is no ground for disregarding the same. The income of the deceased is taken to be Rs.1,54,800/ per annum as per the Ex.PW2/7. The deceased paid IncomeTax of Rs.20,440/ and after deducting the same from Rs.1,54,800/, the income of the deceased is taken to be Rs.1,34,360/ per annum."
9.9 In the light of aforecited observations made by Hon'ble High Court of Delhi in the decided cases of Oriental Insurance Co. Ltd. vs. Kanika Arora and Others(supra), Geeta and Others vs. Dinesh Kumar and others(supra) and Dalvinder Kaur Vs. United India Insurance Company Limited (supra), it can be safely concluded that the income tax return of the deceased filed by his legal heirs after his demise can be admitted in evidence of the petitioners and can also be relied upon by a Motor Accident Claim Tribunal to determine the income of the deceased provided the same is supported by genuine income proofs as well as proofs of tax deposited by the deceased prior to his death and also by proofs of income tax deposited by his legal heirs after his demise.
In the present case, the income tax returns of the deceased for the assessment years 201617 and 201718 have been filed after his demise, however, the same are supported by the documents containing details of tax deducted at source by various clients of the deceased prior to his death. A perusal of last income tax return of the deceased pertaining to the year 201718 reveals that a sum of Rs.250/ had been deducted as tax at source by one client of the deceased, namely, Vivek Lall for a transaction dated 17.05.2016 in respect of booking for 02.08.2016. Besides, tax in the sum of Rs.2,790/ had been deducted at source by another client of the deceased, namely, Yogesh Trading LR's of Sanjay Vs. Mahender & Ors. Page 23 of38 LR's of Sanjay Vs. Mahender & Ors. Page 24 of38 Company for transactions which had taken place between 30.04.2016 to 31.12.2016 in respect of bookings for various dates between 03.08.2016 to 27.01.2017. The rest of the details of bookings and tax deducted at source by clients of the deceased pertain to the period after the demise of the deceased and are not relevant for the purpose of determining the income of the deceased in the present case. However, most of the tax paid by the deceased in the assessment year 201718 for the previous year 201617 had been deducted at source by the clients of the deceased prior to his demise and as such, I find no ground to suspect the authenticity of the income tax return of the deceased.
9.10 A perusal of the said income tax returns reveals that the gross total income of the deceased for the year 20172018 has been reflected to be about Rs.3,25,615/. Besides, the tax payable by the deceased had been reflected to be Rs.2,575/. Also, Rs.615/ has been reflected as deduction under chapter VIA of the Income Tax Act being income from other sources. Accordingly, the net income of the deceased for the assessment year 20172018 comes out to be Rs.3,22,425/ where from the monthly income of the deceased can be determined to be Rs.26,868.75/ as per his ITRs.
10. Addition of future prospects If addition in income towards future prospects is to be made 10.1 In this regard, reference should be made to the Constitutional Bench Judgment of Hon'ble Supreme Court of India passed in case of National Insurance Company Limited vs. Pranay Sethi and Ors, SLP (Civil) No. 25590 of 2014, date of decision 31.10.2017.
10.2 In the said judgment of Pranay Sethi (Supra), the Hon'ble Apex Court inter alia held as under: LR's of Sanjay Vs. Mahender & Ors. Page 24 of38 LR's of Sanjay Vs. Mahender & Ors. Page 25 of38
61. In view of the aforesaid analysis, we proceed to record our conclusions:
(i).........................................................................................
(ii) .....................................................................................
(iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30% , if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.
(iv) In case the deceased was selfemployed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.
(v) For the determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore.
(vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment.
(vii) The age of the deceased should be the basis for applying the multiplier.
LR's of Sanjay Vs. Mahender & Ors. Page 25 of38 LR's of Sanjay Vs. Mahender & Ors. Page 26 of38
(viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and future expenses should be Rs. 15,000/, Rs. 40,000/ and Rs. 15,000/ respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years. "
(.... Emphasis Supplied) 10.3 In the case in hand, the deceased was selfemployed and in terms of above said judgment, while determining his income for computing compensation, future prospects have to be added to fall within the ambit and sweep of just compensation under Section 168 of M.V. Act.
10.4 In the present case, as discussed above, the deceased was aged about 44 years 6 months and 7 at the time of his death. In view of paragraph no. 61 (iv) of above said judgment in Pranay Sethi (Supra), the deceased would be entitled to addition of 25% as future prospects to his established income as he was above the age of 40 years but less than 50 years of age at the time of his death.
10.5 The monthly income of the deceased is thus calculated as Rs.33,585.93/. (monthly income of Rs.26,868.75/ +25% of monthly income i.e Rs. 6,717.18/ = Rs. 33,585.93/.
11. Deduction towards personal and living expenses of the deceased:
11.1 At the time of his demise, victim Sanjay Kumar was survived by five legal heir including his wife, mother, father and two sons.
11.2 There is no material on record to arrive at a finding to the effect that either the parents of the deceased or his wife either gainfully employed or were not dependent on the income of the deceased for their financial LR's of Sanjay Vs. Mahender & Ors. Page 26 of38 LR's of Sanjay Vs. Mahender & Ors. Page 27 of38 needs.
11.3 In the present case, as discussed above, the deceased is survived five legal heirs and had a primary duty to provide maintenance to all his legal heirs. Therefore, as per the dictum of Hon'ble Apex Court in the case of Smt. Sarla Verma and Ors. vs. Delhi Transport Corporation and Anr., Civil Appeal No.3483 of 2008, date of judgment 15.04.2009 as upheld in the case of Pranay Sethi (supra). The deceased was likely to spend 1/4th of his income on his personal and living expenses and to contribute rest of the 3/4th of his income for his household expenses.
12. Selection of multiplier:
12.1 As discussed above, the age of the deceased was about 44 years 6 months and 7 days at the time of his death. In view of paragraph no. 61(vii) of the judgment in the case of Pranay Sethi (Supra), the age of deceased should be the basis for applying the multiplier. Accordingly, the relevant multiplier would be "14" as per judgment in case of Sarla Verma (Supra) which has been upheld in paragraph no. 61 (vi) in case of Pranay Sethi (Supra).
13. Loss of financial dependency 13.1 In the light of aforesaid facts, loss of financial dependency of the petitioners comes to Rs.42,31,827.18/ [i.e. Rs.33,585.93/ (per month income of the deceased) X12 X14 (multiplier) X 3/4 (dependency after deducting 1/4th of income towards personal and living expenses)].
14. Compensation under nonpecuniary heads/conventional heads: 14.1 In view of the judgment of Constitution Bench of Hon'ble Apex Court in case of Pranay Sethi (Supra), as held in paragraph number 61 (viii) of the said judgment, the petitioners would be entitled to Rs. 15,000/ towards loss to the LR's of Sanjay Vs. Mahender & Ors. Page 27 of38 LR's of Sanjay Vs. Mahender & Ors. Page 28 of38 estate of the deceased and Rs. 15,000/ towards funeral expenses.
15. Medical Expenses 15.1 PW1 Pooja Devi had deposed that she had incurred expenses to the tune of Rs.2,04,995/ on treatment of the deceased. Besides, the petitioner had also examined Sh. Digamber Singh, Sr. Executive, Mool Chand Hospital who had proved the final medical bill of the deceased raised by Mool Chand Hospital to the tune of Rs.2,03,605/. A perusal of court record reveals that the petitioners have filed total original medical bills of the deceased to the tune of Rs.2,04,995/. Accordingly, the petitioners are granted Rs. 2,04,995/ as compensation under the said head.
16. Consortium {Spousal Consortium/Parental Consortium/Filial Consortium} 16.1 The deceased was unmarried and the petitioners/claimants are his parents. It is now a settled law in terms of Judgment of Hon'ble Supreme Court of India, in case of Magma General Insurance Co. Ltd vs Nanu Ram and Ors, Civil Appeal No. 9581 of 2018, date of decision 18.09.2018: 2018(8) SCJ 338:2018 SCC Online SC 1546 and the judgment of Hon'ble Delhi High Court in case of Uttrakhand Transport Corporation Vs. Jyoti Sardana, MAC.APP.920/2017, date of decision 03.04.2019 that the compensation under the head of consortium is required to be awarded to all the claimants to the tune of Rs. 40,000/ each. In the present case, there were five legal heirs of the deceased at the time of his demise who were the mother, father, the wife and two sons of the deceased, hence, Rs. 2,00,000/ (Rs. 40,000/ x 5) is being granted under the said head. My views in this regard are also substantiated by the latest judgments of Hon'ble Delhi High Court in cases titled as United India Ins. Co. Ltd. Vs Manorama Aggarawal and Ors., MAC.APP. 250/2015, LR's of Sanjay Vs. Mahender & Ors. Page 28 of38 LR's of Sanjay Vs. Mahender & Ors. Page 29 of38 decided on 09.01.2020 and Om Prakash and Ors vs Ved Prakash and Anr, MAC.APP 114/2019 date of decision 28.01.2020. My views are also substantiated by the latest judgments of Hon'ble Supreme Court of India in cases titled as The New India Assurance Company Limited Vs. Smt. Somwati and Ors., Civil Appeal Nos. 30933099 of 2020, decided on 07.09.2020 and United India Insurance Company Ltd. Vs. Satinder Kaur alias Satvinder Kaur and Ors., (2020) SCC Online 410.
17. LOSS OF LOVE and AFFECTION 17.1 The Hon'ble Supreme Court of India in the latest case of The New India Assurance Company Limited Vs. Smt. Somwati and Ors., Civil Appeal Nos. 30933099 of 2020, decided on 07.09.2020 after referring to its another decision of threejudge bench in case titled as United India Insurance Company Ltd. Vs. Satinder Kaur alias Satvinder Kaur and Ors., (2020) SCC Online 410 inter alia held as follows :
"34. The ThreeJudge Bench in the above case approved the comprehensive interpretation given to the expression 'consortium' to include spousal consortium, parental consortium as well as filial consortium. Three Judge Bench however further laid down that 'loss of love and affection' is comprehended in 'loss of consortium', hence, there is no justification to award compensation towards 'loss of love and affection' as a separate head.
35. The Constitution Bench in Pranay Sethi has also not under conventional head included any compensation towards 'loss of love and affection' which have been now further reiterated by threeJudge Bench in United India Insurance Company Ltd. (supra). It is thus now authoritatively well settled that no compensation can be awarded under the head 'loss of love and affection'.
................................................................................... ................................................................................... ...................................................................................
LR's of Sanjay Vs. Mahender & Ors. Page 29 of38 LR's of Sanjay Vs. Mahender & Ors. Page 30 of38
47. In result, all the appeals are partly allowed. The award of compensation under the conventional head 'loss of love and affection' is set aside........................"
17.2 In view of the abovesaid discussion and the latest judgments of Hon'ble Supreme Court of India in the cases of The New India Assurance Company Limited Vs. Smt. Somwati and Ors., Civil Appeal Nos. 30933099 of 2020, decided on 07.09.2020 and United India Insurance Company Ltd. Vs. Satinder Kaur alias Satvinder Kaur and Ors., (2020) SCC Online 410, no amount of compensation can be awarded under the said head of 'loss of love and affection'. Hence, no amount is being granted under the said head.
18. Petitioners/claimants are accordingly entitled to compensation computed as under:
Loss of financial dependency Rs. 42,31,827.18/
Loss of Estate Rs. 15,000/
Funeral Expenses Rs. 15,000/
Loss of Consortium Rs. 2,00,000/
Medical Expenses Rs. 2,04,995/
Loss of Love and Affection Nil.
Total Rs. 46,66,822.18/
________________
[Rounded off to Rs. 46,66,823/ (Forty Six Lakhs Sixty Six Thousand Eight Hundred Twenty Three only)] 18.1 In respect of entitlement of the petitioner to interest on the awarded amount, it is noteworthy that the Hon'ble Apex Court had in the case of Municipal Corporation of Delhi vs. Association of Victims of Uphaar Tragedy, 2012 ACJ 48 (SC) had observed that the victims of Uphaar Tragedy be awarded compensation with interest @ 9% per annum. The present matter is pending trial since 17.07.2017 and the rate of interest of fixed deposits in Nationalized banks has fluctuated/dropped several times during the pendency of LR's of Sanjay Vs. Mahender & Ors. Page 30 of38 LR's of Sanjay Vs. Mahender & Ors. Page 31 of38 the present proceedings. Therefore, in the interest of justice, in the present case, this court is of the opinion that the claimant/petitioner is entitled to interest at the prevailing bank rate of 6% per annum from the date of filing of DAR/petition, that is, with effect from 17.07.2017 till realisation of the compensation amount.
18.2 The amount of interim award, if any, shall however be deducted from the above amount, if the same has already been paid to the petitioner.
19. Liability 19.1 In the case in hand, the United India Insurance Company Limited/R3 has not been able to show anything on record to the effect that R1 who was the driver of the offending vehicle was not having any valid driving licence to drive the offending vehicle. As per settled law, since the offending vehicle was duly insured with the insurance company/R3, hence, R3 is liable to pay the entire compensation amount to the petitioner as per law.
19.2 Accordingly, in the case in hand, in terms of order dated 16.05.2017 of Hon'ble High Court by Hon'ble Mr. Justice J.R. Midha in case of Rajesh Tyagi Vs. Jaibir Singh and Ors., Oriental Insurance co/R3 is directed to deposit the awarded amount of Rs.46,66,822.18/ within 30 days from today within the jurisdiction of this Tribunal, that is, State Bank of India, Rohini Courts Branch, Delhi along with interest at the rate of 6% per annum from the date of filing of the petition till notice of deposition of the awarded amount to be given by R3 to the petitioner and his advocates and to show or deposit the receipt of the acknowledgement with the Nazir as per rules. R3 is further directed to deposit the awarded amount in the above said bank by means of cheque drawn in the name of above said bank along with the name of the claimant mentioned therein. The said bank is further directed to keep the said amount in fixed deposit in its own name till the claimant approach the bank for LR's of Sanjay Vs. Mahender & Ors. Page 31 of38 LR's of Sanjay Vs. Mahender & Ors. Page 32 of38 disbursement, so that the awarded amount starts earning interest from the date of clearance of the cheque.
APPORTIONMENT
20. Joint statement of petitioners in terms of clause 29 MCTAP was recorded on 02.08.2019 regarding their savings bank a/c with no loan, cheque book and ATM/debit card. I have heard the petitioners and Ld. counsel for the petitioners/claimants regarding financial needs of the petitioners and in view of the judgment in the case of General Manager, Kerala State Road Transport Corporation Vs. Susamma Thomas and Others, 1994 (2) SC, 1631, for appropriate investments to safeguard the amount from being frittered away by the beneficiaries owing to their ignorance, illiteracy and being susceptible to exploitation, following arrangements are hereby ordered: 20.1 It is deemed appropriate by this court after hearing learned counsels for all parties that maximum amount of compensation be kept in FDRs and only a very small amount be released to the claimants. Keeping in view the facts and circumstances of the case, the statements made by the petitioners, it is hereby directed that on realization of the entire award amount, an amount of Rs.26,66,823/ be given to Smt. Pooja and the remaining amount of Rs. 5,00,000/ each be given to Arpit Kumar and Puneet Kumar, who are the sons of the deceased and Sh. Jagdish Rai and Smt. Krishna Devi, who are the parents of the deceased respectively. From the share of Smt. Pooja, an amount of Rs.2, 66,823/ be released to her in her A/c no.38630718514 maintained in the name of Smt. Pooja, that is, the branch near her place of residence (as mentioned in statement recorded under clause 29 MCTAP) and remaining amount be kept in 70 FDRs of equal amount for a period of one month to 70 months respectively. From the share of remaining petitioners, an amount of Rs. 50,000/ each be released to them in their A/c no.38631484288 (in the name of Arpit Kumar), A/c LR's of Sanjay Vs. Mahender & Ors. Page 32 of38 LR's of Sanjay Vs. Mahender & Ors. Page 33 of38 no.38580086519 (in the name of Puneet Kumar), A/c no. 38570225296 (in the name of Krishna Devi) and A/c No. 38447256549 (in the name of Jagdish Rai) maintained in their names, that is, the branch near their place of residence (as mentioned in statement recorded under clause 29 MCTAP) in their respective accounts and remaining amount be kept in the form of 45 FDRs in their names of equal amount for a period of one month to 45 months respectively with cumulative interest without the facility of advance, loan and premature withdrawal without the prior permission of the Tribunal. 20.2 It shall be subject to the following further conditions and directions in terms of order dated 07.12.2018 of Hon'ble Mr. Justice J.R. Midha in case of Rajesh Tyagi vs Jaibir Singh, FAO 842/2003 with respect to fixed deposits :
(a) The bank shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the victim i.e. the saving bank account(s) of the claimant(s) shall be individual savings account(s) and not a joint account(s).
(b) The original fixed deposit shall be retained by the bank in safe custody. However, the statement containing FDR number, FDR amount, date of maturity and maturity amount shall be furnished by bank to the claimant(s).
(c) The monthly interest be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant/(s) near the place of their residence.
(d) The maturity amount of the FDR(s) be credited by Electronic Clearing System (ECS) in the saving bank account of the claimant(s) near the place of their residence i.e. above said a/c.
(e) No loan, advance or withdrawal or premature discharge be allowed on the fixed deposits without permission of the court.
(f) The concerned Bank shall not to issue any cheque book and/or debit LR's of Sanjay Vs. Mahender & Ors. Page 33 of38 LR's of Sanjay Vs. Mahender & Ors. Page 34 of38 card to claimant(s). However, in case the debit card and/or cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount. The bank shall debit card(s) freeze the account of the claimant(s) so that no debit card be issued in respect of the account of the claimant(s) from any other branch of the bank.
(g) The bank shall make an endorsement on the passbook of the claimant(s) to the effect, that no cheque book and/or debit card have been issued and shall not be issued without the permission of the court and claimant(s) shall produce the passbook with the necessary endorsement before the court on the next date fixed for compliance.
(h) It is clarified that the endorsement made by the bank along with the duly signed and stamped by the bank official on the pass book(s) of the claimant(s) is sufficient compliance of clause (g) above.
21. Relief 21.1 As discussed above, R3 is directed to deposit the award amount of Rs. 46,66,823/ with interest @ 6% per annum from the date of filing of DAR/petition i.e. 17.07.2017 till realization within the jurisdiction of this Tribunal i.e. SBI, Rohini Court Branch, Delhi within 30 days from today under intimation of deposition of the awarded amount to be given by R3 to the petitioners and their advocate failing which the R3 shall be liable to pay interest @ 9% per annum from the period of delay beyond 30 days.
21.2 R3 is also directed to place on record the proof of deposit of the award amount, proof of delivery of notice in respect of deposit of the award amount in the above said bank to the claimants and complete details in respect of calculations of interest etc in the court within 30 days from today. 21.3 A copy of this judgment/award be sent to respondent no. 3 for compliance within the granted time.
LR's of Sanjay Vs. Mahender & Ors. Page 34 of38 LR's of Sanjay Vs. Mahender & Ors. Page 35 of38 21.4 Nazir is directed to place a report on record in the event of non
receipt/deposit of the compensation amount within the granted time.
In terms of directions contained in the order dated 07.12.2018 and subsequent order dated 22.02.2019 of Hon'ble Mr. Justice J.R. Midha in the case of Rajesh Tyagi and Ors vs Jaibir Singh and Ors., FAO 842/2003, the copy of the award be also sent by the Ahlmad of the court to Mr. Rajan Singh, Assistant General Manager, State Bank of India (as per the list of nodal officers of 21 banks of Indian Bank's Association as circulated to the Motor Accident Claims Tribunal vide above mentioned order dated 22.02.2019 of Hon'ble Delhi High Court) who is the Nodal Officer with contact details (02222741336/9414048606) {other detailsPersonal Banking Business Unit (LIMA) 13th Floor, State Bank Bhawan, Madame Cama Road, Nariman Point, Mumbai400021} through email ([email protected]) through the computer branch of Rohini Courts, Delhi. Ahlmad of the court is directed to take immediate steps in that regard.
21.5 A copy of this award be forwarded to the concerned Metropolitan Magistrate and DLSA in terms of the orders passed by the Hon'ble High Court in FAO 842/2003 Rajesh Tyagi Vs. Jaibir Singh and Ors. vide order dated 12.12.2014.
In view of the directions contained in order dated 18.01.2018 of Hon'ble Mr. Justice J.R. Midha in FAO no. 842/2003 titled as Rajesh Tyagi vs Jaibir Singh, joint statement of petitioners was also recorded on 02.08.2019 wherein they had stated that they were entitled to exemption from deduction of TDS and that they would submit form 15G to insurance co. so that no TDS is deducted.
22. Form IVA which has been duly filled in has also been attached herewith. File be consigned to record room as per rules after compliance of LR's of Sanjay Vs. Mahender & Ors. Page 35 of38 LR's of Sanjay Vs. Mahender & Ors. Page 36 of38 necessary legal formalities. Copy of order be given to parties for necessary compliance as per rules.
Announced in open court (JASJEET KAUR)
on 28th May, 2022 PO MACT N/W
Rohini Courts, Delhi.
LR's of Sanjay Vs. Mahender & Ors. Page 36 of38
LR's of Sanjay Vs. Mahender & Ors. Page 37 of38
FORM - IV A
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN DEATH CASES TO BE INCORPORATED IN THE AWARD
1. Date of accident : 15.04.2016
2. Name of deceased: Sh. Sanjay
3. Age of the deceased: About 44 years 6 months and 7 days at the time of accident.
4. Occupation of the deceased: Self employed.
5. Income of the deceased: Rs.26,868.75/ per month
6. Name, age and relationship of legal representatives of deceased:
S.No. Name Age Relation
(i) Smt. Pooja 46 years Wife
(ii) Sh. Arpit 25 years Son
(iii) Sh. Puneet Kumar 23 years Son
(iv) Smt. Krishna Devi 70 years Mother
(v) Sh. Jagdish Rai 76 years Father
Computation of Compensation
S.No. Heads Awarded by the Claims
Tribunal
7. Income of the deceased (A) Rs. 26,868.75/ (as per ITR)
8. AddFuture Prospects (B) 25% = Rs. 6,717.18/
9. LessPersonal expenses of the 1/4th
deceased (C )
10. Monthly loss of dependency Rs.25,189.45/
{ (A+B) - C =D}
11. Annual loss of dependency (Dx12) Rs. 3,02,273.4/
12. Multiplier (E) 14
13. Total loss of dependency (Dx12xE = Rs.42,31,827.6/
F)
14. Medical Expenses (G) Rs.2,04,995/
15. Compensation for loss of love and Nil
affection (H)
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LR's of Sanjay Vs. Mahender & Ors. Page 38 of38
16. Compensation for loss of consortium Rs. 2,00,000/ (40,000x5)
(I)
17. Compensation for loss of estate (J) Rs. 15,000/
18. Compensation towards funeral Rs. 15,000/
expenses (K)
19. TOTAL COMPENSATION Rs.46,66,823/
(F+G+H+I+J+K =L)
20. RATE OF INTEREST AWARDED 6%
21 Interest amount up to the date of Rs. 13,61,934.42/
award (M)
22. Total amount including interest (L+M) Rs. 60,28,757/
23. Award amount released Rs. 4,66,823/
24. Award amount kept in FDRs Rs. 55,63,934/
25. Mode of disbursement of the award As per award and in terms of amount to the claimant (s) (Clause 29) clause 29 of MCTAP.
26. Next date for compliance of the award. 01.07.2022.
(Clause 31)
Announced in open court (JASJEET KAUR)
on 28th May, 2022 PO MACT N/W
Rohini Courts, Delhi.
LR's of Sanjay Vs. Mahender & Ors. Page 38 of38