Delhi District Court
Sh. Ram Dayal vs Tata Aig General Insurance Co on 4 February, 2019
MACP No. 4662/16 (Old No. 265/14) FIR No. 473/13.; PS Alipur DOD: 04.02.2019
IN THE COURT OF SH. VIDYA PRAKASH, PRESIDING OFFICER,
MOTOR ACCIDENT CLAIMS TRIBUNAL, ROHINI COURTS, DELHI
MAC Petition No. 4662/16 (Old MAC Petition No. 265/14)
1. Sh. Ram Dayal
S/o Sh. Budhi Ram
(Father of deceased)
2. Smt. Shakuntla
W/o Sh. Ram Dayal
(Mother of deceased)
Both R/o Village Arrana, P.O. Arrana
PS Khair, District Aligarh, U.P.
................Petitioners
VERSUS
1. Tata AIG General Insurance Co.
Agra, U.P.
And also having its Regional Office at
A2, 2nd Floor, near Kalra Hospital
Near Metro Pillar No. 329, Main Najafgarh Road
Kirti Nagar, New Delhi
(Insurer)
2. Sh Pradeep Kumar Bansal
S/o Sh. Chander Bhan Bansal
R/o Main Road, Jattari
PS Tappal,
District Aligarh, U.P.
(Regd owner)
Sh. Ram Dayal & Anr. Vs. Tata AIG Gen Ins. Co Ltd. & Ors. Page 1 of 27
MACP No. 4662/16 (Old No. 265/14) FIR No. 473/13.; PS Alipur DOD: 04.02.2019
3. Sh Kanhiya Lal
S/o Sh Chittar Singh
R/o Village Kurna, P.O Khandya,
District Aligarh, U.P.
(Driver) ...............Respondents
Date of Institution : 02.07.2014 Date of Arguments : 18.01.2019 Date of Decision : 04.02.2019
APPEARANCES: Sh. Ramneek Kumar Adv for petitioners.
Sh. V.K Gupta Adv for respondent no. 1.
None for respondent no. 2.
Sh. A.K Singla Adv for respondent no. 3.
Petition under Section 166 & 140 of M.V. Act, 1988 for grant of compensation AWARD
1. The petitioners have filed the present claim petition U/s 166/140 M.V Act seeking compensation to the tune of Rs. 20,00,000/ alongwith interest @ 12% p.a. against the respondents for the fatal injuries sustained by their son namely Rahul in Motor Vehicular Accident which occurred on 12.10.13 at 7.00 am in front of Gosai Dharam Kanta, Delhi, within the jurisdiction of PS Alipur.
2. It is averred in the claim petition that deceased Rahul was aged about 24 years old; he was working as Cleaner/Conductor and was earning Rs. 8000/ per month at the time of accident. It is further averred Sh. Ram Dayal & Anr. Vs. Tata AIG Gen Ins. Co Ltd. & Ors. Page 2 of 27 MACP No. 4662/16 (Old No. 265/14) FIR No. 473/13.; PS Alipur DOD: 04.02.2019 that on 10.10.13, the respondent no. 1 had parked the alleged offending vehicle i.e. truck bearing registration no. HR735204 under high tension electric line in front of Gosai Dharam Kanta, near the area of Bakhtawarpur, Delhi. On that day, it was raining due to which goods loaded in the aforesaid truck soaked water in it. At about 7 am, when Rahul tried to remove the cover(Tripal) on the instruction of driver/respondent no. 1, he was electrocuted and sustained burn injury while coming into contact with high tension electric wire. He was removed to LNJP Hospital. However, on 13.10.13, he ultimately succumbed to the injuries sustained by him. Postmortem on his body was conducted in the said hospital vide PMR No. 996/13. FIR No. 473/13 U/s 304A IPC was registered at PS Alipur with regard to the said accident. It is further averred that the accident occurred due to over loading of aforesaid truck by the owner of the said vehicle and by illegal parking of said vehicle by its driver. It is claimed that the alleged offending vehicle was owned by respondent no. 2 and it was insured with Tata AIG General Insurance Co Ltd/respondent no. 1 during the period in question.
3. The insurance company/R1 has raised statutory defence in terms of Section 149(2) M.V Act by claiming that no accident had taken place by the aforesaid vehicle. It has further claimed that as per the contents of FIR, the goods were loaded in the aforesaid truck beyond the permitted capacity in violation of provisions of Motor Vehicle Act/Rules.
Sh. Ram Dayal & Anr. Vs. Tata AIG Gen Ins. Co Ltd. & Ors. Page 3 of 27MACP No. 4662/16 (Old No. 265/14) FIR No. 473/13.; PS Alipur DOD: 04.02.2019 Hence, the owner is guilty of violation of terms and conditions of the insurance policy and provisions of Motor Vehicle Act/Rules. Thus, it is not liable to pay any compensation amount in this case. On merits, it has admitted that the alleged offending vehicle was duly insured with it in the name of Sh. Pradeep Kumar Bansal (Respondent no. 2) for the period from 29.03.13 to 28.03.14, vide policy no. 0100752073. On merits, it has simply denied the averments made in the claim petition and has prayed for its dismissal.
4. In his WS, the respondent no. 2/registered owner has raised preliminary objections that there is no cause of action to file the present claim petition against him. Alternatively, he has claimed that the aforesaid truck no. HR735204 was insured with respondent no. 1 and the respondent no. 3 was having valid and effective DL at the time of accident. Thus, he is not liable to pay any compensation amount to the petitioners. On merits, he has simply denied the averments made in the claim petition and has prayed for its dismissal.
5. In his WS, the respondent no. 3/driver has raised preliminary objections that the petitioners have concealed the material facts from the Court and has claimed that the accident occurred due to negligence of deceased himself. He has also claimed that he had got the FIR lodged against the owner of the vehicle in the present case. He further claimed that Sh. Ram Dayal & Anr. Vs. Tata AIG Gen Ins. Co Ltd. & Ors. Page 4 of 27 MACP No. 4662/16 (Old No. 265/14) FIR No. 473/13.; PS Alipur DOD: 04.02.2019 the owner of the vehicle had loaded the vehicle 45 feet above the body of said truck. He also claimed that he had taken the deceased to LNJP Hospital. He claimed that he was having valid and effective DL at the time of accident. Thus, he is not liable to pay any compensation to the petitioners. On merits, he has simply denied the averments made in the claim petition and has prayed for its dismissal.
6. From pleadings of the parties, the following issues were framed by Ld Predecessor vide order dt. 17.07.2015:
1) Whether the deceased Rahul suffered fatal injuries in road traffic accident on 12.10.2013 at about 7.00 am, near in front of Gosai Dharam Kanta, Delhi within the jurisdiction of PS Alipur due to negligence on the part of the R2 who had overloaded his truck bearing registration no. HR73 5204,driven by R3 and insured with R1?
OPP.
2) Whether the petitioners/ Lrs of deceased is entitled to any compensation, if so to what amount and from whom?OPP
3) Relief.
7. In support of their claim, the petitioners have examined only one witness i.e. PW1 Sh Ram Dayal (father of deceased). They closed their evidence through their counsel on 15.12.2016. On the other hand, no Sh. Ram Dayal & Anr. Vs. Tata AIG Gen Ins. Co Ltd. & Ors. Page 5 of 27 MACP No. 4662/16 (Old No. 265/14) FIR No. 473/13.; PS Alipur DOD: 04.02.2019 evidence was adduced by the respondents no. 1 & 2. Respondent no. 1 closed evidence on 02.11.2017 through its counsel. RE of respondent no. 2 was closed vide order dated 21.07.17. The respondent no. 3 has examined only one witness i.e. himself as R3W1 and closed evidence on 21.07.17 through his counsel.
8. I have already heard the arguments addressed by ld counsels for the parties. I have also gone through the record. Both the sides were directed to submit their respective submissions in Form VI A vide order dated 18.01.2019. However, none of the parties submitted the same on record till date. My findings on the issues are as under: Issue No. 1
9. For the purpose of this issue, the testimony of PW1 Sh. Ram Dayal (father of deceased) is relevant. He deposed in his evidence by way of affidavit (Ex. PW1/A) that his son Rahul(deceased) was employed with respondent no. 2 as Cleaner/Conductor on monthly salary of Rs. 8,000/ beside other benefits (food etc.) just one month prior to the accident in question. He further deposed that on 10.10.2013, his son had received burn injuries while he was removing the cover/tripal form the loaded truck no. HR735204, due to electrocution. His son was got admitted in the hospital by driver Sh. Kanahiya Lal and said driver informed him about the accident.
Sh. Ram Dayal & Anr. Vs. Tata AIG Gen Ins. Co Ltd. & Ors. Page 6 of 27MACP No. 4662/16 (Old No. 265/14) FIR No. 473/13.; PS Alipur DOD: 04.02.2019 He further deposed that his son Rahul had died on 13.10.13 in LNJP Hospital during the course of treatment. He categorically deposed that the accident occurred due to overloading of aforesaid truck by its owner Pradeep Bansal. He has relied upon the following documents: Sr. No. Description of documents Remarks
1. Certified copies of criminal Ex PW1/1(colly) case record
2. Copy of his Aadhaar Card Ex. PW1/2
3. Copy of Aadhaar Card of Ex. PW1/3 mother of deceased
10. During his crossexamination on behalf of respondents no. 1 & 3, he denied the suggestion that no such accident took place out of use of vehicle no. HR735204. Respondent no. 2 did not crossexamine this witness at all.
11. After referring to the facts of the case as emerging on record showing that it was stationary truck when Rahul reached to the top of the loaded goods in the rear portion of said truck for removing tripal and got electrocuted, counsel for insurance company vehemently argued that the present claim petition is not maintainable under the law as it does not fall within the purview of Section 165 M.V. Act inasmuchas there is no use of vehicle involved in it. On the other hand, counsel for petitioners argued that Sh. Ram Dayal & Anr. Vs. Tata AIG Gen Ins. Co Ltd. & Ors. Page 7 of 27 MACP No. 4662/16 (Old No. 265/14) FIR No. 473/13.; PS Alipur DOD: 04.02.2019 Rahul had gone to the top of loaded truck on the instructions of respondent no. 3(driver) in order to remove the tripal and due to that reason only, he got electrocuted as the said vehicle was parked under high tension electric wires and thus, there is use of vehicle in the accident and present claim petition is very well maintainable under the law.
12. The factual matrix of the case has already been noted hereinabove and said facts are admitted from both the sides. It is also beyond dispute that it was raining on the day of accident i.e. 12.10.13 and despite that the truck no. HR735204 had been parked under high tension electric wires by its driver i.e. respondent no. 3. It is also pertinent to note that the said truck was got over loaded on the instructions of respondent no. 2(owner) to the extent of 45 feet above the permissible limit under the law. In this backdrop, one has to see as to whether the factum of Rahul having got electrocuted while going to top of the loaded goods for removing the tripal/cover, would include within its sweep the expresssion 'use of motor vehicle' as employed by legislature in the relevant provision. The aforesaid question directly came up for consideration before various High Courts from time to time and it was held that same would amount to negligence on the part of driver of vehicle and would be termed as arising out of use of Motor Vehicle. To cite few cases in this regard would be appropriate for the clarity on the point in issue. In the case titled as "New India Assurance Co. Ltd. Vs. Unnmalai & Ors.", 2012 ACJ 504(Mad), Cleaner came in contact with Sh. Ram Dayal & Anr. Vs. Tata AIG Gen Ins. Co Ltd. & Ors. Page 8 of 27 MACP No. 4662/16 (Old No. 265/14) FIR No. 473/13.; PS Alipur DOD: 04.02.2019 live electric wire and was electrocuted while unloading grinders from the roof of the vehicle. It was held that accident had taken place because of negligence of driver who stopped the vehicle near high intensity electric wire and allowed the cleaner to go to roof top for unloading those grinders. Claim petition filed u/s. 166/140 M.V. Act was held to be maintainable in said case. In another case titled as " Sushila & Anr. Vs. Rampal Singh & Ors.", 2007 ACJ 1958 (MP), facts were almost similar to the facts of the present case as driver had parked the truck touching an electric pole. One passerby touched door knob of the said vehicle and got electrocuted. The claim petition was resisted by insurance company on the ground that there was no use of vehicle involved therein. However, the said plea was rejected and it was held that accident occurred on account of driver parking the truck in negligent manner in a public place touching electric pole with the result that anyone who touched metallic part of said truck, was electrocuted. It was also held that deceased would be termed as third party having died due to negligence of truck driver and insurance company was accordingly held liable. Similar views have been taken in other cases titled as "UPSRTC & Anr. Vs. Rajendra Kumar Gupta & Ors.", 2013 ACJ 2307(Allahabad), " Somwati & Ors. Vs. Pankaj Kumar & Ors.", 2005 ACJ 6(MP) and "Manorama Nath Vs. Union of India", 2013 ACJ 1503(Orrisa).
Sh. Ram Dayal & Anr. Vs. Tata AIG Gen Ins. Co Ltd. & Ors. Page 9 of 27MACP No. 4662/16 (Old No. 265/14) FIR No. 473/13.; PS Alipur DOD: 04.02.2019
13. Having judged the facts of the present case on the touchstone of the legal position as discussed by various Hon'ble High Courts in the above referred decisions, there is not even an iota of doubt in my mind to hold that there was use of truck no. HR735204 in the occurrence of accident in question. It was solemn duty of driver of said truck not to have asked deceased to go to roof top of the said vehicle for removing tripal when driver was very well aware of the fact that the loaded goods were already wet and it had rained on that day and the goods were already overloaded and there was every possibility of deceased having come into contact with high tension electric wire when he would be removing the tripal. There was equal negligence on the part of owner (R2) of the said truck in getting the vehicle overloaded to the extent of 45 feet above the permissible limit. Hence, it is held that the present claim petition is very much maintainable u/s. 166/140 M.V. Act.
14. This brings me down to the next limb of argument raised on behalf of insurance company that the petitioners have not examined any eyewitness of the accident in question and hence, they have failed to prove that accident occurred due to rash and negligent act on the part of respondents no. 2 & 3. Counsel for insurance company vehemently argued that PW1 Sh. Ram Dayal is undisputedly not an eye witness of the accident in question.
Sh. Ram Dayal & Anr. Vs. Tata AIG Gen Ins. Co Ltd. & Ors. Page 10 of 27MACP No. 4662/16 (Old No. 265/14) FIR No. 473/13.; PS Alipur DOD: 04.02.2019
15. Counsel for petitioners in this regard, heavily relied upon the criminal case record (Ex. PW1/1 colly) in order to bring home his point that the accident in question had occurred due to rash and negligent driving of Truck bearing registration no. HR735204. He further argued that FIR No. 473/13 was registered at PS. Alipur against respondent no. 2 and respondent no. 2 was also chargesheeted by police for offence punishable U/s 304A IPC, which clearly establish that the accident had occurred due to negligent act on the part of respondent no. 2.
16. Instead of referring to the series of decisions on the point in issue, it may be noted that it is well settled legal position as laid down by Hon'ble Apex Court as well as by various High Courts in plethora of judgments delivered from time to time that in claim petitions preferred U/s 160/144 M.V Act, the claimants have to prove on the basis of preponderance of probabilities that accident was caused due to rash and negligent driving of alleged offending vehicles by its drivers. Same is the essence of legal position discussed by Hon'ble Apex Court in celebrated case of Meena Variyal. At the same time, it is no more resintegra that claim petition filed under relevant provisions of M.V Act, is the outcome of social welfare legislation and the proceedings are summary in nature and do not require strict compliance of rules of evidence and pleadings. It needs no emphasis that in case replies filed by respondents, are Sh. Ram Dayal & Anr. Vs. Tata AIG Gen Ins. Co Ltd. & Ors. Page 11 of 27 MACP No. 4662/16 (Old No. 265/14) FIR No. 473/13.; PS Alipur DOD: 04.02.2019 evasive then it is deemed that they have admitted the averments made by the claimants. The purpose of granting compensation is to ameliorate the sufferings of the victims of Motor Vehicle Accidents and the niceties, hyper technicalities, procedural wrangles and tangles and mystic maybes have no role to play and same should not be any ground to dismiss the claim petitions and to defeat the rights of the claimants. While saying so, I am fortified by the decisions rendered by Hon'ble Apex Court in the cases titled as " N.KV. Bros (P) Ltd Vs. M. Karumai Ammal", 1980 ACJ 435 (SC); "
Sohan Lal Passi Vs. P. Sesh Reddy", 1996 ACJ 1044 (SC) and "
Dulcina Fernandes Vs. Joaquim Xavier Cruz", 2013 ACJ 2712 (SC). It is also relevant to mention here that while deciding claim petition under M.V Act, it is the duty of Claims Tribunal to follow the principles of justice, equity and good conscience and to adopt more realistic, pragmatic and liberal approach.
17. The aforesaid issue recently came up for discussion before Hon'ble Apex Court in the case of "Vimla Devi & Ors. Vs. National Insurance Company Limited & Ors.", Civil Appeal No. 11042 of 2018, decided on 16.11.18. After referring to the previous judicial precedents on the point in issue and the fact that M.V. Act is a social welfare legislation, Hon'ble Apex Court held in para 29 of its judgment as under: "xxxxx
29. In our view, what more documents could be Sh. Ram Dayal & Anr. Vs. Tata AIG Gen Ins. Co Ltd. & Ors. Page 12 of 27 MACP No. 4662/16 (Old No. 265/14) FIR No. 473/13.; PS Alipur DOD: 04.02.2019 filed then the documents filed by the appellants to prove the factum of the accident and the persons involved therein.
xxxxx"
18. In the above cited decision, the facts were similar and the claimants had not examined any eyewitness. Still, Hon'ble Apex Court held that in view of filing of criminal case record including chargesheet showing that driver of alleged offending vehicle had been chargesheeted for causing the accident due to rash and negligent driving of said vehicle and the driver himself did not enter into witness box, claimants were able to prove the issue of accident being caused due to rash and negligent driving of said vehicle by said driver on the basis of preponderance of the probabilities.
19. Now, turning back to the facts of the present case. No doubt, the petitioners have not examined any eye witness to prove the negligence on the part of driver of the alleged offending vehicle described above but nevertheless, there is ample material brought on record during the course of inquiry, which is sufficient to establish that the accident occurred due to negligent act on the part of driver and owner of Truck no bearing registration no. HR735204. As already noted above, it was the duty of driver of said truck to take necessary precautions while asking deceased to go to roof top of the said vehicle for removing tripal when he was very well aware of the fact that the loaded goods were already wet and it had rained Sh. Ram Dayal & Anr. Vs. Tata AIG Gen Ins. Co Ltd. & Ors. Page 13 of 27 MACP No. 4662/16 (Old No. 265/14) FIR No. 473/13.; PS Alipur DOD: 04.02.2019 on that day and the goods were already overloaded and truck was standing under high tension electric wire, due to which there was every possibility of deceased having come into contact with those electric wire when he would be removing the tripal. There was equal negligence on the part of owner (R2) of the said truck in getting the vehicle overloaded to the extent of 45 feet above the permissible limit.
20. R3W1 is the driver of aforesaid truck. He deposed in his evidence by way of affidavit (Ex. R3W1/A) that on 10.10.13, he had parked his loaded vehicle on side of road near the area of Bakhtawarpur, in front of Gosai Dharam Kanta. He further deposed that on that day, it had rained due to which goods loaded in his vehicle, soaked water. He further deposed that cleaner/conductor had tried to remove cover/tripal without his permission and instructions. He deposed that the accident in question occurred due to negligence of registered owner namely Pradeep Bansal who had got the goods loaded in the aforesaid truck 45 feet above the permitted height. He also deposed that he had objected to the aforesaid act of registered owner but registered owner did not pay any heed towards it.
During his crossexamination on behalf of petitioners, he admitted that he had warned several times to owner of vehicle not to load the same 45 feet above the body of truck but he did not listen. He also admitted that Rahul had expired due to negligence on the part of owner of said vehicle. He has not been crossexamined at all on behalf of registered owner despite grant Sh. Ram Dayal & Anr. Vs. Tata AIG Gen Ins. Co Ltd. & Ors. Page 14 of 27 MACP No. 4662/16 (Old No. 265/14) FIR No. 473/13.; PS Alipur DOD: 04.02.2019 of opportunity. During cross on behalf of insurance company, he denied the suggestion that he was not working as driver on the said vehicle or that no such incident took place or that he had lodged false FIR or that deceased was not working as a cleaner on the said vehicle at that time.
21. It is quite evident from the aforesaid discussion that even respondent no. 3 is also admitting that the accident had taken place due to negligence on the part of owner of the aforesaid truck. It is also interesting to note that the said respondent nowhere specifically whispered that the truck was not parked by him under high tension electric wire. Same would be sufficient to infer negligence on his part as well as it was his duty to take necessary precautions by not parking the overloaded vehicle just below high tension electric wire and that too at the time when there was raining on that day and loaded goods had soaked water in them.
22. Moreover, it is an undisputed fact that FIR No. 473/13 u/s 304A IPC was registered at PS. Alipur with regard to accident in question. Copy of said FIR (which is part of criminal case record Ex. PW1/1 colly), would show that same was registered on 13.10.2013 on the basis statement of complainant. The contents of said FIR would show that complainant has stated therein that his owner namely Pradeep Bansal i.e. respondent no. 2 forcibly got the said vehicle overloaded to the extent of 4 5 feet above the permissible height on 10.10.13, despite his repeated Sh. Ram Dayal & Anr. Vs. Tata AIG Gen Ins. Co Ltd. & Ors. Page 15 of 27 MACP No. 4662/16 (Old No. 265/14) FIR No. 473/13.; PS Alipur DOD: 04.02.2019 requests made to him and despite the fact that he had told the owner that loaded goods may come in contact with electricity wires passing above the road.
23. Moreover, it is an undisputed fact that FIR No. 473/13 (supra) was registered at PS. Alipur with regard to accident in question. Copy of said FIR (which is part of criminal case record Ex. PW1/1 colly) would show that same was registered on 13.10.2013(accident had occurred on 12.10.13). Thus, FIR is shown to have been registered promptly and without any delay. Hence, there is no possibility of false implication of respondent no. 2 and/or false involvement of Truck bearing registration no. HR735204 at the instance of petitioners herein.
24. Copy of MLC of deceased (which is part criminal case record Ex. PW1/1 colly) prepared at SRHC hospital, would show that he had been removed to said hospital on 12.10.2013 at 8.30 am with alleged history of electrocution. He was found to have sustained multiple injuries as mentioned therein. Said injuries are consistent with the injuries which are sustained due to electrocution. Apart from above, copy of PM Report (which is part criminal case record Ex. PW1/1 colly) of deceased, would show that his cause of death was on account of shock consequent upon burn injuries. All the injuries were antemortem in nature, fresh in duration and could be caused by passage of electric current. The injuries as noted in the relevant Sh. Ram Dayal & Anr. Vs. Tata AIG Gen Ins. Co Ltd. & Ors. Page 16 of 27 MACP No. 4662/16 (Old No. 265/14) FIR No. 473/13.; PS Alipur DOD: 04.02.2019 column with regard to external injuries, as mentioned therein, are consistent with the injuries which are sustained due to electrocution. Again, there is no challenge to the aforesaid documents from the side of respondents.
25. In view of the aforesaid discussion and the evidence which has come on record, it is held that the petitioners have been able to prove on the basis of pre ponderence of probabilities that Rahul had sustained burn injuries in accident which took place on 12.10.13 at 7.00 am in front of Gosai Dharam Kanta, Delhi, due to negligent act on the part of driver and owner of Truck bearing registration no. HR735204. Thus, issue no. 1 is decided in favour of petitioners and against the respondents.
ISSUE NO. 226. Section 168 of the Act enjoins the Claims Tribunal to hold an inquiry into the claim to make an award determining the amount of compensation which appears to it to be just and reasonable. It has to be borne in mind that the compensation is not expected to be a windfall or a bonanza nor it should be niggardly.
LOSS OF DEPENDENCY
27. As already stated above, the claimants are the parents of deceased. PW1 Sh. Ram Dayal (father of deceased) has deposed in his evidence by way of affidavit (Ex. PW1/A) that deceased was unmarried and Sh. Ram Dayal & Anr. Vs. Tata AIG Gen Ins. Co Ltd. & Ors. Page 17 of 27 MACP No. 4662/16 (Old No. 265/14) FIR No. 473/13.; PS Alipur DOD: 04.02.2019 he was employed with respondent no. 2 as Cleaner/Conductor at monthly salary of Rs. 8,000/ besides other benefits(food etc.) at the time of accident. During his cross examination on behalf of respondents no. 1 & 3, he deposed that he did not file any document to show that deceased was employed as Cleaner on vehicle no. HR735204 or that he was earning any amount as on the date of accident. He denied the suggestion that deceased was not employed or that he was not earning any amount as on the date of accident. He deposed that he was aged about 7576 years as on the date of recording of his testimony, however he did not remember his date of birth. His wife is 1 or 2 years younger than him. He also deposed that he and his wife were having one buffalo and they were earning their livelihood by selling the milk, at the time of making testimony during the course of inquiry. He denied the suggestion that the petitioners were not financially dependent upon the deceased. Respondent no. 2 did not crossexamine this witness at all.
28. During the course of arguments, counsel for petitioners fairly conceded that for want of any cogent and definite evidence being led by petitioners regarding monthly income of deceased, his income should be considered as per Minimum Wages Act in order to calculate the loss of dependency. He however argued that future prospects should also be awarded to the petitioners as per law.
Sh. Ram Dayal & Anr. Vs. Tata AIG Gen Ins. Co Ltd. & Ors. Page 18 of 27MACP No. 4662/16 (Old No. 265/14) FIR No. 473/13.; PS Alipur DOD: 04.02.2019
29. As already noted above, PW1 Sh. Ram Dayal who is father of deceased, admitted during his cross examination that he did not have any documentary proof to show that deceased was earning any amount at the time of accident. However, the petitioners have filed copy of Scholar's Register & Transfer Certificate Form of Shir Long Shri Devi Inter College in respect of deceased on record. The said certificate reveals that deceased had studied upto 10th class in the said institution. In case, the monthly income of deceased has to be assessed as that of Matriculate under Minimum Wages Act applicable during the period in question, the Minimum Wages of Matriculate were Rs. 9,802/ per month as on the date of accident i.e. 10.10.13. Hence, I am inclined to take the monthly income of deceased to be Rs. 8,000/ as claimed by the petitioners themselves.
30. PW1, who is father of deceased, has categorically testified that age of deceased was 24 years at the time of accident. The copy of Scholar's Register & Transfer Certificate Form of Shir Long Shri Devi Inter College in respect of deceased, is filed alongwith claim petition. According to said document, the date of birth of deceased as mentioned therein is 25.08.1990. The date of accident is 12.10.13. Accordingly, the age of deceased comes out to somewhere between 2324 years at the time of accident. Hence, the multiplier of 18 would be applicable in view of recent pronouncement made by Constitutional Bench of Apex Court in the case Sh. Ram Dayal & Anr. Vs. Tata AIG Gen Ins. Co Ltd. & Ors. Page 19 of 27 MACP No. 4662/16 (Old No. 265/14) FIR No. 473/13.; PS Alipur DOD: 04.02.2019 titled as "National Insurance Company Ltd. Vs. Pranay Sethi & Ors." passed in SLP(Civil) No. 25590/14 decided on 31.10.17.
31. Considering the fact that deceased is claimed to be self employed and there being no cogent evidence that he was having permanent job, future prospects @ 40% has to be awarded in favour of petitioners in view of recent pronouncement made by Constitutional Bench of Apex Court in the case titled as "National Insurance Company Ltd. Vs. Pranay Sethi & Ors." mentioned supra, as well as in view of recent decision of Hon'ble Delhi High Court in appeal bearing MAC APP No. 798/2011 titled as "Bajaj Allianz General Insurance Company Ltd. Vs. Pooja & Ors", decided on 02.11.17.
32. Considering the fact that the father of deceased is shown to be aged 7576 years at the time of recording his testimony i.e. as on 15.12.16, his age would have been somewhere around 7172 years, the date of accident of being 12.10.13. Hence, he would also be termed as financially dependent upon the earning of deceased at the time of accident. Thus, there has to be deduction of one third as held in the case of Pranay Sethi mentioned supra. Thus, the total of loss of dependency would come out to Rs. 16,12,800/(rounded off) (Rs. 8,000/ X 2/3 X 140/100 X 12 X 18). Hence, a sum of Rs. 16,12,800/ is awarded under this head in favour of the petitioners.
Sh. Ram Dayal & Anr. Vs. Tata AIG Gen Ins. Co Ltd. & Ors. Page 20 of 27MACP No. 4662/16 (Old No. 265/14) FIR No. 473/13.; PS Alipur DOD: 04.02.2019 LOSS OF LOVE & AFFECTION
33. After the celebrated judgment of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors.", mentioned supra, Hon'ble Delhi High Court in appeal titled as "Bajaj Allianz General Insurance Company Ltd. Vs. Pooja & Ors", mentioned supra, has been pleased to observe in para 18 of the judgment that the constitution bench decision in Pranay Sethi (supra) does not recognize any other nonpecuniary head of damages. Hence, no amount of compensation is being awarded under this head.
LOSS OF CONSORTIUM
34. In its recent decision delivered in the case of " Magma General Insurance Co Ltd Vs. Nanu Ram @ Chuhru Ram & Ors.", Civil Appeal No. 9581/2018 decided on 18.09.2018, Hon'ble Apex Court has held that even in case of death of unmarried child, parents are entitled to filial consortium by observing that filial consortium is the right of the parents to compensation in the case of an accidental death of a child. It further held that an accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to loose their child during their life time. Children are valued for their love, affection, companionship and their role in the family unit. While following the dictum in the aforesaid decision of Hon'ble Apex Court, I Sh. Ram Dayal & Anr. Vs. Tata AIG Gen Ins. Co Ltd. & Ors. Page 21 of 27 MACP No. 4662/16 (Old No. 265/14) FIR No. 473/13.; PS Alipur DOD: 04.02.2019 hereby award a sum of Rs. 40,000/ as filial consortium to the petitioners under this head.
LOSS OF ESTATE & FUNERAL EXPENSES
35. In view of the facts and circumstances of the present case and in view of decision of Hon'ble Apex Court in the case of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors." mentioned supra, a sum of Rs. 15,000/ each is awarded in favour of petitioners on account of loss of estate and funeral expenses.
The total compensation is assessed as under:
1. Loss of dependency Rs. 16,12,800/
2. Loss of Consortium Rs. 40,000/
3. Loss of Estate & Funeral Rs. 30,000/ Expenses Total Rs. 16,82,800/ Rounded Off to Rs. 16,83,000/
36. Now, the question which arises for determination is as to which of the respondents is liable to pay the compensation amount. Respondent Sh. Ram Dayal & Anr. Vs. Tata AIG Gen Ins. Co Ltd. & Ors. Page 22 of 27 MACP No. 4662/16 (Old No. 265/14) FIR No. 473/13.; PS Alipur DOD: 04.02.2019 no. 1/insurance company did not adduce any evidence since it had no statutory defence. It is nowhere the case of insurance company that any term or condition of insurance policy was breached/violated by insured. Keeping in view the existence of valid insurance policy, respondent no. 1/insurance company becomes liable to pay the compensation amount, as insurance company is liable to indemnify the insured. Issue no. 2 is decided accordingly.
ISSUE NO. 3 RELIEF
37. In view of my finding on issues no. 1 & 2, I award a sum of Rs. 16,83,000/ (including interim award amount if any) alongwith interest @ 9% per annum w.e.f date of filing the petition i.e. 02.07.2014 till the date of its realization, in favour of Lrs of deceased/petitioners and against the respondents jointly and severally (Reliance placed on judgment "Oriental Insurance Company Ltd. Vs. Sangeeta Devi & Ors" bearing MAC. APP. 165/2011 decided on 22.02.2016).
APPORTIONMENT
38. Statements of legal heirs of deceased in terms of Clause 26 MCTAP were recorded on 02.11.2017. It is hereby ordered that out of the award amount, petitioner no. 1 namely Sh. Ram Dayal shall be entitled to share amount of Rs. 6,83,000/ (Rupees Six Lacs and Eighty Three Thousand Only) alongwith proportionate interest and petitioner no. 2 Sh. Ram Dayal & Anr. Vs. Tata AIG Gen Ins. Co Ltd. & Ors. Page 23 of 27 MACP No. 4662/16 (Old No. 265/14) FIR No. 473/13.; PS Alipur DOD: 04.02.2019 namely Smt. Shakuntala shall be entitled to remaining share amount of Rs. 10,00,000/ (Rupees Ten Lakhs Only) alongwith proportionate interest.
39. Out of share amount of petitioner no. 1, a sum of Rs. 1,00,000/ (Rupees One Lakh Only) is directed to be immediately released to him through his Saving Bank Account No. 25750100005324 with Bank of Baroda, Gaur Bandhu Comaligarh, Palwal Road, Khair, UP and remaining amount is directed to be kept in the form of FDRs in the multiples of Rs. 20,000/ each for one month, two months, three months and so on and so forth, having cumulative interest.
40. Out of share amount of petitioner no. 2, a sum of Rs. 1,50,000/ (Rupees One Lakh and Fifty Thousand Only) is directed to be immediately released to her through her Saving Bank Account No. 25750100014677 with Bank of Baroda, Gaur Bandhu Comaligarh, Palwal Road, Khair, UP and remaining amount is directed to be kept in the form of FDRs in the multiples of Rs. 20,000/ each for one month, two months, three months and so on and so forth, having cumulative interest.
41. All the FDRs to be prepared as per aforesaid directions, shall be subject to the following conditions:
(a) The Bank shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the claimant(s) i.e. the savings bank account(s) of the claimant(s) shall be an individual savings bank account(s) and not a joint account(s).
Sh. Ram Dayal & Anr. Vs. Tata AIG Gen Ins. Co Ltd. & Ors. Page 24 of 27MACP No. 4662/16 (Old No. 265/14) FIR No. 473/13.; PS Alipur DOD: 04.02.2019
(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 amounts of the FDR(s) be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant(s) near the place of their residence.
(e) No loan, advance, 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 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 alongwith the duly signed and stamped by the bank official on the passbook(s) of the claimant(s) is sufficient compliance of clause(g) above.
Sh. Ram Dayal & Anr. Vs. Tata AIG Gen Ins. Co Ltd. & Ors. Page 25 of 27MACP No. 4662/16 (Old No. 265/14) FIR No. 473/13.; PS Alipur DOD: 04.02.2019
42. During the course of hearing of final arguments, both the claimants submitted that they are entitled to exemption from deduction of TDS as their annual income do not exceed from the taxable limit prescribed under the law. They have also furnished their respective Forms No. 15H on record.
43. Respondent no. 1, being insurer of the offending vehicle, is directed to deposit the award amount with SBI, Rohini Courts branch within 30 days as per above order, failing which insurance company shall be liable to pay interest @ 12% p.a for the period of delay. Concerned Manager, SBI, Rohini Court Branch is directed to transfer the respective share amounts directed to be released immediately to aforesaid petitioners in their aforesaid saving bank accounts mentioned supra, on completing necessary formalities as per rules. He be further directed to keep the said amount in fixed deposit in its own name till the claimants approach the bank for disbursement so that the award amount starts earning interest from the date of clearance of the cheques. Copy of the award be given dasti to the petitioners and also to counsel for the insurance company alongwith original Forms No. 15H of claimants (after retaining photocopies thereof on record) for compliance. Copy of this award alongwith one photograph each, specimen signatures, copy of bank passbooks and copy of residence proof of the petitioners, be sent to Sh. Ram Dayal & Anr. Vs. Tata AIG Gen Ins. Co Ltd. & Ors. Page 26 of 27 MACP No. 4662/16 (Old No. 265/14) FIR No. 473/13.; PS Alipur DOD: 04.02.2019 Nodal Officer of SBI, Rohini Court, Branch, Delhi for information and necessary compliance. Form V & Form IVA in terms of MCTAP are annexed herewith as AnnexureA. Copy of order be also sent to concerned M.M and DLSA as per clause 31 and 32 of MCTAP.
Digitally signed by VIDYA VIDYA PRAKASH
Announced in open PRAKASH Date:
2019.02.05
11:29:04 +0530
Court on 04.02.2019
(VIDYA PRAKASH)
Judge MACT2 (North)
Rohini Courts, Delhi
Sh. Ram Dayal & Anr. Vs. Tata AIG Gen Ins. Co Ltd. & Ors. Page 27 of 27