Delhi District Court
Smt. Neeta Kapoor vs Mohd. Halim (Driver) on 28 November, 2018
IN THE COURT OF SH. RAJ KUMAR
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNAL:
(WEST-01):DELHI
New MACT Case No. 476279/16
1. Smt. Neeta Kapoor
W/o Sh. Arun Kant Kapoor
Aged about 47 years
2. Sh. Arun Kant Kapoor
S/o Sh. J. M. Kapoor
aged about 54 years
3. Ms. Sunaina Kapoor
D/o Sh. Arun Kant Kapoor
aged about 24 years
4. Ms. Mehak Kapoor
D/o Sh. Arun Kant Kapoor
aged about 18 years
All R/o C-2/370, Janakpuri, New Delhi-110058
.....Petitioners
Versus
1. Mohd. Halim (Driver)
S/o Sh. Mohd. Shamim
R/o H. No. 9H2-421, Sector 9-2,
PS Sector 20, Noida,
Gautam Budh Nagar, UP
2. Sh. Vikas Bahl (Owner)
S/o Sh. Y. D. Behl
R/o A-3/1, Janakpuri,
New Delhi-110058
3. National Insurance Company Ltd. (Insurer)
350201, 3rd Floor,
Deendayal Upadhyaya Bhawan,
7-E, Jhandewalan, New Delhi
New MACT Case No. 476279/16 Page No. 1/25
......... Respondents
Date of Institution: : 10.08.2015
Date of reserving order/judgment : 29.10.2018
Date of pronouncement: : 28.11.2018
AWARD
FORM-V
COMPLIANCE OF THE PROVISIONS OF THE MODIFIED CLAIMS TRIBUNAL AGREED PROCEDURE
1. Date of the accident 18.04.2015
2. Date of intimation of the accident by the Not mentioned Investigation Officer to the Claims Tribunal. (Clause 2)
3. Date of Intimation of the accident by the 27.04.2015 Investigating Officer to the Insurance Company. (Clause 2)
4. Date of filing of Report under Section Date not mentioned 173 Cr. P.C. before the Metropolitan Magistrate. (Clause 10)
5. Date of filing of Detailed Accident 10.08.2015 Information Report (DAR) by the Investigating Officer before Claims Tribunal. (Clause 10)
6. Date of service of DAR on the 17.08.2015 Insurance Company. (Clause 11)
7. Date of service of DAR on the claimant 10.08.2015
(s). (Clause 11)
8. Whether DAR was complete in all Yes respects? (Clause 16)
9. If not, whether deficiencies in the DAR ---
removed later on?
10. Whether the police has verified the Yes New MACT Case No. 476279/16 Page No. 2/25 documents filed with DAR? (Clause 4)
11. Whether there was any delay or The accident took place deficiency on the part of the on 18.04.2015 and the Investigating Officer ? If so, whether DAR was filed on any action/ direction warranted? 10.08.2015
12. Date of appointment of the Designated Not mentioned Officer by the Insurance Company.
(Clause 20)
13. Name, address and contact number of Not mentioned the Designated Officer of the Insurance Company. (Clause 20)
14. Whether the Designated Officer of the Insurance company was Insurance Company submitted his not filed the legal offer report within 30 days of the DAR?
(Clause 22)
15. Whether the Insurance Company No admitted the liability? If so, whether the Designated Officer of the Insurance Company fairly computed the compensation in accordance with law.
(Clause 23)
16. Whether there was any delay or No deficiency on the 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 Legal offer was not filed the offer of the Insurance Company. by the insurance (Clause 24) company
18. Date of the award 28.11.2018
19. Whether the award was passed with Yes the consent of the parties? (Clause 22)
20. Whether the claimant (s) were directed Yes to open savings bank account (s) near their place of residence? (Clause 18)
21. Date of order by which claimant (s) 20.08.2018 were directed to open savings bank account (s) near his place of residence New MACT Case No. 476279/16 Page No. 3/25 and produce PAN Card and Adhaar 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).
(Clause 18)
22. Date on which the claimant(s) produced Yet to be filed the passbook of their savings bank account near the place of their residence along with the endorsement, PAN Card and Adhaar Card? (Clause
18)
23. Permanent Residential Address of the R/o C-2/370, Janakpuri, Claimant(s) (Clause 27) Janakpuri B-1, S.O. Janakpuri B-1,West Delhi, Delhi-110058
24. Details of savings bank account(s) of Yet to be filed the claimant(s) and the address of the bank with IFSC Code. (Clause 27)
25. Whether the claimant(s) savings bank Yes account (s) in near his place of residence? (Clause 27)
26. Whether the claimant (s) were Yes examined at the time of passing of the award to ascertain his/their financial condition? (Clause 27)
1. This judgment-cum-award shall decide the petition under Section 166 and 140 of Motor Vehicle Act 1988 as amended up to date (hereinafter referred to as the 'Act') filed by petitioners for grant of compensation for the death of the deceased Sh. Sumit Kapoor in the road vehicular accident.
2. Brief facts of the case are that on 18.04.2015 at about 03:45AM, the deceased was driving TSR bearing No. DL-1RM-0458. It has been further stated that when the deceased reached at Hari Nagar, Red Light Bus Stop, Near CNG Petrol Pump, PS Hari Nagar, New Delhi, one Road Roller (CC384 HF) which was doing repairing work on the road suddenly and abruptly hit the deceased's TSR in New MACT Case No. 476279/16 Page No. 4/25 a most rash and negligent manner. It has been alleged that the driver of the abovesaid roadroller/respondent no.1 started reversing the roadroller back in a most rash and negligent manner and at a very high speed without caring for the others on the road and in the process, the respondent no.1 hit the deceased.
3. It has been further stated that due to the forceful impact, the TSR turned turtle and the deceased sustained grievous head injuries. It has been further stated that after the accident, the deceased was taken to DDU Hospital, where the doctors on duty declared him 'Brought Dead'.
4. As a result of the abovesaid accident, as per the case of the petitioners, FIR No.580/15 dated 18.04.2015; P. S. Hari Nagar, u/s 279/336/304A IPC was registered against the respondent No.1.
5. It has been further stated that at the time of accident, the deceased was doing the permanent private job at Sunrise Embedded Solutions Pvt. Ltd. B- 30, 2nd Floor, Ram Nagar, Om Vihar, Uttam Nagar, New Delhi-110059 as Office Coordinator and getting a gross salary of Rs.1,80,000/- per annum.
6. It has been further stated that the deceased has left behind his mother, father and two younger sisters as his only legal heirs. It has been further stated that the petitioner No.1 is the mother of the deceased, the petitioner No.2 is the father of the deceased and the petitioners no.3 & 4 are the younger sisters of the deceased.
7. In total, the petitioner has claimed a sum of Rs. 35,00,000/- (Rupees Thirty Five Lacs Only) on account of compensation.
8. It has been further stated that the respondent no.1 being the driver of the offending vehicle, the respondent no.2 being the owner of the offending vehicle and the respondent No.3 being the Insurer of the offending vehicle are jointly and severally liable to pay the compensation to the petitioner.
9. Written statement has been jointly filed by the respondents No.1 & 2 stating therein that the alleged road roller was duly insured with National Insurance Company Ltd. as contractors plant and machinery. It has been further New MACT Case No. 476279/16 Page No. 5/25 stated that the alleged vehicle in question is not covered under the Motor Vehicle Act and therefore, the present petition is not maintainable. It has been further stated that no accident has been caused by the respondent no.1. It has been further stated that at the date, time and place of the accident, the respondent No.1 was driving the alleged road roller merely at the speed of 2.5 km/her hour and necessary precautions on the road were already taken.
10. It has been further stated that the deceased driver was driving his TSR bearing No. DL-1RM-0458 rashly and negligently behind the alleged road roller and crossed the barricades i.e. plastic cones and tapes which were laid as the road was being repaired. It has been further stated that when the deceased reached just close to the alleged road roller which was driven by the respondent No.1, the deceased immediately turned his TSR to his right and hit the central verge of the road. It has been further stated that as a result of which, TSR of the deceased turned turtle on his left side. It has been further stated that the deceased himself fell outside the TSR and his head hit the wheel of the alleged road roller. It has been further stated that the accident took place on account of the sole negligence of the deceased himself.
11. It has been further stated that owner of the alleged road roller is M/s Y.D. Builders and Hotel Private Ltd., 209, Second Floor, D.D.A. Building, District Centre, Janak Puri, New Delhi and not Sh. Vikas Behl as mentioned in the memo of parties by the petitioners. It has been prayed that the present claim petition be dismissed.
12. Written statement has been filed by the insurance company wherein it has been admitted that the offending vehicle i.e. Road Roller (Asphalt Compactor-CC384HFI) was insured with it in the name of M/s Y.D. Builders & Hotels Pvt. Ltd. vide policy No. 350201/44/14/5900000003 valid from 25.04.2014 to 24.04.2015 of the contractor plant and machinery. It has been further stated that the present petition does not fall under the category of Motor Vehicle Act, 1988. It has been further stated that the present accident took place due to the New MACT Case No. 476279/16 Page No. 6/25 sole negligence of deceased himself. It has been prayed that the present claim petition be dismissed.
13. After hearing the arguments and going through the pleading of the parties, the following issues were framed by this Tribunal on 22.05.2017:-
1. Whether the deceased Sh. Rohit Kapoor suffered fatal injuries in the accident that took place on 18.04.2015 at about 3.45 am due to rash and negligent driving of Road Roller (CC 384 HF) by the respondent No.1 Md. Halim, being owned by the respondent No.2 and insured with the respondent no.3? OPP.
2. Whether the present claim petition is not maintainable under MACT Act, as stated by the respondent No.3 in the reply/written statement? OPR3.
3. Whether the petitioner is entitled to compensation, if so, at what amount and from whom? OPP.
4. Relief.
14. In order to establish their claim, the petitioners have examined the petitioner No.1 Smt. Neeta Kapoor as PW-1 and in her evidence by way of affidavit, she has reiterated and reaffirmed the stand as taken by the petitioners in the present claim petition. She has filed on record her affidavit as Ex. PW1/A, copies of Educational documents of the deceased as Ex. PW1/1(colly running into 5 pages) (OSR); copy of appointment letter of the deceased as Ex. PW1/2 (OSR); copy of driving license and Batch of the deceased as Mark A & B; photocopy of her Election ID card as Ex. PW1/3 (OSR); photocopy of Election ID card of petitioner No.2 as Ex. PW1/4(OSR); photocopy of Election ID Card of petitioner No.3 as Ex. PW1/5 (OSR); copy of Aadhar Card of petitioner No.4 as Ex. PW1/6; the DAR as Ex.
New MACT Case No. 476279/16 Page No. 7/25PW1/7 (colly).
15. In the cross-examination done by Ld. Counsel for the respondents No.1 & 2, PW-1 has stated that she was not an eye witness to the accident. PW-1 has further stated that she does not have any documentary proof regarding the joining of the job by the deceased.
16. PW-1 has further stated that she is not working. PW-1 has further stated that apart from the deceased, she has two daughters. PW-1 has further stated that her elder daughter was a Graduate and she is 26 years old. PW-1 has further stated that her younger daughter namely Mahek is 18 years old and she is doing graduation.
17. The petitioners have further examined Sh. Shamim Ahmad, the eye witness to the accident in question as PW-2 and this witness has stated that on 18.04.2015 at 3:30 to 3:45AM, he was standing in the opposite side of Hari Nagar Bus Depot (DTC) with his Cab and was waiting for passengers. PW-2 has further stated that he had seen that on the opposite side of the road, the roller was doing repair work. PW-2 has further stated that the roller was being put forward and back by the Driver of the roller in order to smoothen the road, then, all of a sudden, a Auto rammed into the roller from the back side. PW-2 has further stated that thereafter, the auto got overturned. PW-2 has further stated that thereafter, they ran to the spot of the accident only to find that the auto driver had expired at the spot.
18. PW-2 has further stated that at that time, he was driving a Taxi by the brand name Meru. PW-2 has further stated that after reaching the spot of the accident and after finding out that the auto driver was dead, he left for his duties. PW-2 has further stated that on the display of the disc which was installed in the said taxi, he was assigned his duties. PW-2 has further stated that after 1- 1 ½ hours after performing his duties, he came to the spot of accident back and thereafter at that time, his statement was recorded by the police official. PW-2 has further stated that he cannot tell as to on account of whose negligence, the New MACT Case No. 476279/16 Page No. 8/25 accident in question was caused.
19. In the cross-examination done by Ld. Counsel for the insurance company, PW-2 has stated that he does not know as to by whom the police was called at the spot. By way of volunteer, PW-2 states that someone from the public had called the police. PW-2 has further stated that the police had not recorded the statement of anyone else at the spot besides him. By way of volunteer, PW-2 states that as none was ready to give his/her statement. PW-2 has admitted it to be correct that the speed of the road roller was very low at the time of the accident. PW-2 has admitted it to be correct that at the spot of the accident, signs were put at the spot and barricading was also done by the authorities who were laying the road from which it was visible that the making of the road was in progress . PW-2 has also admitted it to be correct that the trucks containing the charcoal were stationed there and it was visible even from a distance that one had to refrain himself from going there as the road making was in progress. PW-2 has admitted it to be correct that the auto driver failed to see the signs and rammed into the road roller. PW-2 has further stated that he cannot tell as to whether the auto driver was driving the auto at a high speed. PW-2 has further stated that till date, he has not received any summons from the court of Ld. MM where the criminal case is pending. PW-2 has further stated that the police did not take him at the spot again for preparation of the site plan. PW-2 has further stated that the police had recorded his statement at about 7 or 7:30 AM when he reached back at the spot after performing his duties. PW-2 has further stated that his statement was recorded by the police at the spot of the accident only.
20. The petitioners have further examined IO SI Sunil Kumar as PW-3 and this witness has stated that he has filed the DAR in the present matter which has already been exhibited as Ex. PW1/7 (colly) during the examination of PW-1. PW-3 has further stated that the accident in question took place because the driver of the road roller started moving the roadroller in the backward direction in a rash and negligent manner as stated by him in the investigation in the final report u/s New MACT Case No. 476279/16 Page No. 9/25 173 Cr. PC and in the present DAR also. PW-3 has further stated that he had recorded the statement of the eye witness Sh. Shamim Ahmad u/s 161 Cr. PC on 18.04.2015 and his statement is already a part of the DAR. PW-3 has exhibited his statement as Ex. PW3/1 and he has identified his signatures at point A encircled in red on the said statement. PW-3 has further stated that at the instance of Shamim Ahmad, the FIR was lodged by him. PW-3 has further stated that the strips were placed at a distance of 200 meters from the place of the accident and the same were not placed at the place of the accident. PW-3 has further stated that the abovesaid strips were not having any effect on the movement of the traffic and rather when he reached the spot, he had diverted the traffic for the purposes of carrying out the investigation.
21. In the cross-examination done by Ld. Counsel for the respondents No.1 & 2, PW-3 has stated that he got the complaint through DD Entry 12A about the accident in question at 4:00 AM. PW-3 has further stated that he reached at the spot within 10 minutes after receipt of the DD entry. PW-3 has further stated that when he reached at the spot, only Shamim Ahmad, the eye witness stayed there at the spot of the accident while the other taxi drivers left the spot despite the fact that they were present at the time when he reached at the spot. PW-3 has further stated that he started writing down the statement of Shamim Ahmad at about 5:00 AM and the same may have been concluded by 5:30 AM. PW-3 has further stated that he sent the Rukka for lodging the FIR at 5:45AM through Constable Ram Singh.
22. PW-3 has admitted it to be correct that the job of construction of the road was going on at the spot of the accident. PW-3 has further stated that the road was being constructed from the side of Tilak Nagar Water Tank and the same was approaching towards Delhi Cantt. PW-3 has further stated that Tilak Nagar Water Tank was approximately at a distance of 2 kilometers back from the spot of the accident. PW-3 has further stated that he cannot admit or deny the suggestion that the road was being constructed from Tilak nagar Flyover to Lajwanti Flyover. PW-3 New MACT Case No. 476279/16 Page No. 10/25 has further stated that he has not filed the photographs alongwith the DAR.
23. PW-3 has admitted it to be correct that the strips were not confiscated by him. By way of volunteer, PW-3 has stated that as the same were 200 meters away from the spot of the accident and the same had not contributed to the accident.
24. In the cross-examination done by Ld. Counsel for the insurance company, PW-3 has admitted it to be correct that when he reached at the spot, the accident in question had already taken place. PW-3 has also admitted it to be correct that he had enquired the matter only from Shamim Ahmad.
25. PW-3 has admitted it to be correct that the accident in question had already been taken place prior to his reaching at the spot but from the scene of the occurrence, it was apparently visible that the roadroller was at fault.
26. The petitioners have further examined Sh. Priya Ranjan, Manager Accounts with Sunrise Embedded Solutions Pvt. Ltd. as PW-4 and this witness has stated that Sh. Sumit Kapoor was given an offer by their company but he had not joined. PW-4 has further stated that Ex. PW1/2 i.e. the offer dated 25.03.2015 was given by him to Sh. Sumit Kapoor and the same was bearing his signatures at point A encircled in red. PW-4 has further stated that the said letter was prepared by him. PW-4 has further stated that in the said letter, Sh. Sumit Kapoor was offered the job at a monthly salary of Rs.15,000/-.
27. In the cross examination done by Ld. Counsels for the respondents, PW-4 has stated that he had not brought any record pertaining to Sh. Sumit Kapoor either educational or any other record. PW-4 has further stated that he had also not brought in the court any application which might have been given by Sh. Sumit Kapoor for seeking employment. PW-4 has admitted it to be correct that Sh. Sumit Kapoor never joined their company.
28. The insurance company has examined its Divisional Manager, Sh. Sandeep Kumar Goel as R3W1 in the present matter and this witness has filed on record his affidavit as Ex. R3W1/1; notice u/o 12 Rule 8 CPC as Ex. R3W1/A;
New MACT Case No. 476279/16 Page No. 11/25postal receipts as Ex. R3W1/B (colly); office copy of the insurance policy as Ex. R3W1/C; dasti notice u/o 12 rule 8 of the CPC alongwith the receipt as Ex. R3W1/D; attested copy of the General Rules & Regulation in respect to the policy as Ex. R3W1/E.
29. In the cross-examination done by Ld. Counsel for the respondents No.1 & 2, R3W1 has admitted it to be correct that they have not filed the complete 36 pages which are mentioned in index Ex. R3W1/E. By way of volunteer, R3W1 has stated that he has filed the relevant page which is required in the present case. R3W1 has further stated that the insurance policy was not issued in his presence as he was not posted at that time in the branch office. R3W1 has further stated that he is not a member of Tariff Advisory Committee. R3W1 has further stated that prior to issuance of insurance policy, the company had received the duly filled proposal form from proposed seller Y. D. Builders & Hotels (insured). R3W1 has further stated that he has not filed the proposal form of the insurance policy alongwith his affidavit.
30. R3W1 has further stated that the present policy Ex. R3W1/C is the renewal of the subsequent policy and subsequent policy was issued from the HDFC Ergo.
31. In the cross-examination done by Ld. Counsel for the petitioner, R3W1 has stated that the written statement in the present case was signed by him. R3W1 has further stated that the contents of his written statement are true and correct. R3W1 has further stated that as per the policy, they used to supply terms and conditions to the insured alongwith the policy and in the present case, they have done the same. R3W1 has further stated that the Ex. R3W1/C is not a complete policy which was issued to the insured. By way of volunteer, R3W1 states that the Ex. R3W1/C is not a complete policy only for want of terms and conditions, otherwise, the same is complete.
32. R3W1 has further stated that according to the present policy, the insurance company is liable to compensate the insured for own damage of New MACT Case No. 476279/16 Page No. 12/25 roadroller, 10% third party liability upto sum assured Rs.2lacs. R3W1 has further stated that apart from these two heads, as per the present policy, the insurance company is not liable to indemnify the insured.
33. R3W1 has further stated that in the present case, they received the intimation regarding the accident for the first time when they received the summons from the MACT court/DAR in the present case. R3W1 has admitted it to be correct that the index filed by him i.e. page no. 12 is reflecting all the rules and regulations in respect of CPM insurance.
34. I have thoroughly gone through the testimony of the witnesses and perused the record. I have also given my thoughtful consideration to the arguments addressed by the learned counsels for the parties. The petitioners have also been examined under the MCTAP and I have considered the statement of the petitioners under MCTAP as well.
My Issue-wise findings are as under :-
Issue No. (i)
35. The present petition has been filed by the petitioners u/s 140 & 166 M. V. Act and the onus is upon the petitioners to prove the rash and negligent act of the respondent No.1.
36. The petitioners have examined the eye witness namely Sh. Shamim Ahmad as PW2. The IO of the case has also been examined as PW-3. The testimony of the IO is fully corroborative of the version which has been mentioned in the DAR. The IO has categorically stated that the respondent No.1 was at fault as he started reversing the road roller in the backward direction at a high speed without any precaution and the strips which were laid were 200 meters away from the spot of the accident. The IO has categorically stated that the statement of the IO Sh. Shamim Ahmad was recorded under Section 161 of the Cr. PC and the said statement was exhibited as Ex. PW3/1.
New MACT Case No. 476279/16 Page No. 13/2537. In the statement Ex. PW3/1, the abovesaid eye witness has corroborated the stand of the IO and the contents of the DAR but in the testimony of the abovesaid eye witness which has been recorded as PW-2, there is a shift in his stand. PW-2 has tried to say that he cannot tell as to on account of whose negligence, the accident in question was caused.
38. To my mind, the testimony of PW-2 cannot be relied upon but the testimony of PW-3 who is the IO of the case is absolutely trustworthy and reliable.
39. The respondents No.1 & 2 have not care to appear in the witness and to examine themselves. No evidence has been led by the insurance company also on the negligence aspect of the matter.
40. As such, I have no hesitation to hold that the petitioners have been able to prove that the accident in question was caused on account of the rash and negligent driving of the offending road roller by the respondent No1 and the same was not caused by the negligence of the deceased.
41. Ld. Counsel for the petitioner has claimed that in the case in hand, the charge-sheet pertaining to FIR No.580/15 dated 18.04.2015; P. S. Hari Nagar, u/s 279/336/304A IPC was registered against the respondent No.1.
42. In Bimla Devi & Ors vs. Himachal Road Transport Corporation & ors (2009) 13 SC 530, in Kaushnumma Beum and others v/s New India Assurance Company Limited, 2001 ACJ 421 SC, in National Insurance Co. Ltd. vs. Pushpa Rana cited as 2009 ACJ 287, it has been held that the negligence has to be decided on the touchstone of preponderance of probabilities and a holistic view is to be taken. It has been further held that the proceedings under the Motor Vehicle Act are not akin to the proceedings in a Civil Suit and hence, strict rules of evidence are not applicable.
43. In the light of the abovesaid discussion, to my mind, the petitioners have been able to prove issue No.1 in their favour and accordingly, issue No.1 is decided in favour of the petitioners.
New MACT Case No. 476279/16 Page No. 14/25Issue No. (ii)
44. Now, coming to issue No.II, the respondent has contained that the abovesaid roadroller was not falling under the definition of Motor Vehicle Act and in fact, the said roadroller was a machine known as Asphat Compactor. It has been further argued that under the insurance policy also, the same has been shown as contractor machinery. Ld. Counsel for the insurance company has relied upon an authority cited as 1998 ACJ 783 titled as Mohni Kumar & Ors vs. Punjab State and Ors decided by the Hon'ble High Court of Punjab & Haryana situated at Chandigarh wherein, it was held that earth moving machine was not a vehicle under the Motor Vehicles Act as the same was not able to move on the road and the same could work in Kacha field.
45. Ld. Counsel for the insurance company has further relied upon an authority cited as 1975 AIR 17 titled as Bolani Ores Ltd. Etc. vs. State of Orissa Etc. decided on 24.09.1974 wherein it has been held as under:-
"...Held: Dumpers and rockers though registrable under the Motor Vehicles Act are not taxable under the Taxation Act as long as they are working solely within the premises of the respective owners. So far as the tractairs are concerned they are neither registrable under the Motor Vehicles Act nor taxable under the Taxation Act. [160 F] A motor vehicle which is not "adapted for use' upon roads to which public have no right of access is not a motor vehicle within the meaning of s. 2(18) of the Act. The words "is or "is fit" for use on the roads. The meaning of the word adopted" in s. 2(18) of the Act is itself indicated in entry 57 of List If of the 7 th Schedule to the Constitution which confers powers on the State to New MACT Case No. 476279/16 Page No. 15/25 tax vehicles whether propelled mechanically or not and uses the words "suitable" in relation to its use on the roads. The words "adapted for use" must, therefore, be constructed as "suitable for use". The words "adapted for use"
46. It has to be seen that even the respondents no. 1 & 2, in the reply to the present DAR/claim petition have not denied that the roadroller was being plied on the road for the purposes of repairing the road on the date and time of the accident. It has to be seen that in the authority cited as AIR 1995 Allahabad 253 titled as State of UP & Ors vs. Suresh Chandra, it has been held as under:-
"...Mr. Bisaria, learned Standing Counsel made a submission that road roller not being a motor vehicle, claim under the Motor Vehicles Act is not admissible and the application ought to have been rejected on that ground. In view of the definition of the motor vehicle in the Act we have no doubt that road roller comes within the definition and accordingly this contention of the appellant has no force.
In the light of the abovesaid authority, to my mind, the road roller falls within the definition of a Motor Vehicle and accordingly, the contentions of the respondents to the effect that the present DAR is not maintainable as the roadroller was not a vehicle under the MV Act cannot be upheld. Accordingly, the issue No.2 is decided against the respondents and in favour of the petitioners.
Issue No. (iii)
47. The petitioners, in the claim petition have claimed that the deceased New MACT Case No. 476279/16 Page No. 16/25 was doing the permanent private job at Sunrise Embedded Solutions Pvt. Ltd. B- 30, 2nd Floor, Ram Nagar, Om Vihar, Uttam Nagar, New Delhi-110059 as Office Coordinator and getting a gross salary of Rs.1,80,000/- per annum.
48. In order to prove the case, the petitioner No.1 has filed on record the copy of the appointment letter of the deceased as Ex. PW1/2(OSR). The petitioners have also examined Sh. Priya Ranjan Singh as PW-4 from the side of his employer and this witness has stated that Ex. PW1/2 i.e. the offer letter dated 25.03.2015 was given by him to Sh. Sumit Kapoor and the same bears his signatures at point A encircled in red. PW-4 has stated that in the said letter, Sh. Sumit Kapoor was offered the job at a monthly salary of Rs.15,000/-. But in the cross examination, PW-4 has admitted it to be correct that Sh.Sumit Kapoor never joined their company.
49. As such, to my mind, the petitioners have utterly failed to prove on record the income of the deceased.
50. Accordingly, the income of the deceased can very well be assessed on the basis of the chart available in the Minimum Wages Act of a Graduate person as the petitioners have placed on record copy of educational documents of the deceased which includes the marksheet of B.Com pass as Ex. PW1/1(colly). The date of accident was 18.04.2015 on which the minimum wages for a Graduate person for the relevant period were Rs. 11,986/- per month.
51. Now, coming to the age of the deceased, the age of the deceased in the claim petition has been mentioned as 26 years. The petitioner No.1 i.e. mother of the deceased has filed on record the educational documents of the deceased which include the Higher School examination certificate of the deceased as Ex. PW1/1 and DL of the deceased as mark A. In both the documents, the date of birth of the deceased has been mentioned as 22.01.1989. The date of accident is 18.04.2015. As such, the age of the deceased has to be taken as approximately 26 years of age on the date of the accident.
52. The Hon'ble Apex Court of the land in the latest judgment which has New MACT Case No. 476279/16 Page No. 17/25 arisen out of SLP (Civil) No. 25590 of 2014 titled as National Insurance Company Limited vs. Pranay Sethi & ors decided on 31.10.2017 has held as under:-
"61. In view of the aforesaid analysis, we proceed to record our conclusions:-
(i) The two-Judge Bench in Santosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench.
(ii) As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent.
(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 self-employed 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 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.
New MACT Case No. 476279/16 Page No. 18/25(vii) The age of the deceased should be the basis for applying the multiplier.
(viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years."
The Hon'ble High Court of Delhi in MAC Appeal No. 798/2011 titled as Bajaj Allianz General Insurance company Ltd. vs. Pooja & ors decided on 02.11.2017 has held that even in the cases where the income of the deceased is calculated on the basis of the minimum wages, the benefit of future prospects is to be given in accordance with the abovesaid guidelines issued by the Hon'ble Supreme Court of India in the abovestated authority as per the rule applicable to self employed or privately employed persons.
Going by the ratio of the abovestated authority, the multiplier has to be selected as per the age of the deceased which is 26 years in the case in hand, accordingly, the multiplier of 17 as per Sarla Verma vs. DTC 2009 ACJ 1298 SC shall be applicable.
An addition of 40% on account of the future prospects has to be given as the age of the deceased was 26 years. Accordingly, the monthly income of the deceased has to be calculated as Rs.16,780/- (Rs. 11,986/- + Rs. 4794/- (after rounding off Rs.4794.4/-) which is 40% of Rs.11,986/-).
The deceased was a bachelor. In the case of the bachelor, only the mother alone has to be considered as dependent upon the deceased as per Sarla Verma's Judgment.
As per Sarla Verma (Smt.) & Ors. vs. Delhi Transport Corporation & Anr. (2009) 6 SCC 121, the deduction towards personal and living expenses of the deceased who was a bachelor should be one-half (½).
Hence, the total loss of dependency comes out to be Rs. 17,11,560/- = (Rs. 16,780x12x17x1/2).
New MACT Case No. 476279/16 Page No. 19/2553. The Hon'ble Supreme Court of India in, "National Insurance Company Ltd. vs. Pranay Sethi & Ors. in Special Leave Petition (Civil) No.25590 of 2014 has granted a sum of Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- on account of loss of estate, loss of consortium and funeral expenses respectively. The aforesaid amounts are to be enhanced at the rate of 10% in every three years.
54. In view of the abovesaid judgment, I hereby award Rs. 15,000/- towards loss of estate and Rs.15,000/- towards funeral charges.
55. Therefore, in total, I hereby award a sum of Rs. 17,41,560/- (Rupees Seventeen Lacs Forty One Thousand Five Hundred and Sixty Only) =( Rs. 17,11,560/- + Rs. 30,000/-) in favour of the petitioner and against the respondents.
R E L I EF / ISSUE NO.3
56. I award Rs. 17,41,560/- (Rupees Seventeen Lacs Forty One Thousand Five Hundred and Sixty Only) as compensation with interest at the rate of 9% per annum including interim award, if any from the date of filing the DAR/claim petition i.e. 10.08.2015 till the date of the payment of the award amount, in favour of the petitioners and against the respondents on account of their liability being joint and several.
57. The court has examined the petitioners on 29.10.2018 and their statement has also been considered by this Tribunal.
58. As stated herein above, only the mother alone is entitled in the case of a bachelor's death as per Sarla Verma's judgment. Accordingly, Smt. Neeta Kapoor is held entitled for the abovesaid award amount. However, the petitioner No.2 who is the father of the deceased shall be given only a sum of Rs. 1Lac out of the abovesaid award amount and the petitioner No.1 Smt. Neeta Kapoor is held entitled to the entire remaining award amount. The petitioners no.3 & 4 are not held entitled for any award amount.
59. This Tribunal is in receipt of the letter dated 08.11.2017 from Delhi New MACT Case No. 476279/16 Page No. 20/25 State Legal Services Authority, which is annexed with the latest MCTAP as approved by the Hon'ble High Court of Delhi. The Hon'ble High Court of Delhi in Para no. 28 of new MCTAP has held as under:-
"Para no. 28 The Claims Tribunal shall, depending upon the financial status and financial need of the claimant (s), release such amount as may be considered necessary and direct the remaining amount to be kept in fixed deposits in phased manner (for example, if a sum of Rs.5,50,000/- has been awarded to the claimant, Rs.50,000/- may be released immediately and the remaining amount of Rs. 5,00,000/- may be kept in 10 fixed deposits of Rs.50,000/- each for a periods of six months, one year, one and half years, two years and so on till five years or one year, two years, three years and so on till ten years). The Claims Tribunal may also consider imposing following conditions with respect to the fixed deposits:-
(i) The interest on the fixed deposits be paid monthly to the Claimant(s).
(ii) The monthly interest be credited automatically in the saving account of the claimant (s).
(iii) Original fixed deposit receipts be retained by the bank in safe custody.
However, a passbook of the FDRs be given to the claimant (s) along with the photocopy of the FDR. At the time of maturity, the fixed deposit amount shall be automatically credited in the savings bank account of the Claimant(s).
(iv) No cheque book be issued to the claimant (s) without permission of the Court. However, a photo identity card be issued to the claimant (s) and the withdrawal be permitted upon production of the identity card.
(v) No loan, advance or withdrawal be allowed on the fixed deposits without permission of the Court.
(vi) The Bank shall not permit any joint name (s) to be added in the savings bank account or fixed deposit accounts of the victim.
(vii) Half yearly statement of account be filed by the Bank in the Tribunal".
New MACT Case No. 476279/16 Page No. 21/25Keeping in view the entirety of the facts and circumstances involved in the present case and the abovesaid guidelines laid down by the Hon'ble High Court of Delhi, the respondent No.3/Insurance company is directed to deposit the amount of Rs. 17,41,560/- (Rupees Seventeen Lacs Forty One Thousand Five Hundred and Sixty Only) as stated herein above with SBI, Tis Hazari Courts, Delhi, out of which the amount of Rs. 1,41,560/- shall be released to the petitioner No.1/Mother of the deceased keeping in view the submissions of the Ld. Counsel for the petitioner and that of the respondents as well and in the entirety of the facts.
The rest of the amount of Rs. 16,00,000/- shall be kept in 32 equal FDR's for an amount of Rs. 50,000/- each for a period of six month, one year, one and a half years, two years, two and a half years, three years and so on with cumulative interest in the name of the petitioners in their abovesaid shares.
The abovesaid conditions as laid down in MCTAP shall be adhered to by SBI, Tis Hazari Courts, Delhi in respect to the FDR's.
APPORTIONMENT OF LIABILITY
60. Since the offending vehicle, was admittedly insured with the respondent no.3, the respondent No.3 is hereby directed to deposit the award amount in favour of the petitioners with SBI, Tis Hazari Courts, Delhi within a period of 30 days from the date of passing of this award together with the interest as stated herein above under the intimation to this court and under intimation to the petitioners. In case of any delay, it shall be liable to pay interest at the rate of 12% per annum for the period of delay.
A separate file be prepared for compliance report by the Nazir and put up the same on 05.01.2019.
A copy of this award be given to the insurance company as well as to the petitioners free of cost.
New MACT Case No. 476279/16 Page No. 22/25A copy of this award be sent to the concerned Ld. Metropolitan Magistrate as well as DSLSA as per the provisions of the MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE (MCTAP).
File be consigned to Record Room
Announced in the open court ( RAJ KUMAR )
On 28th of November, 2018 P.O. MACT (WEST-01)
Delhi (28.11.2018)
Digitally
signed by
RAJ
RAJ KUMAR
KUMAR Date:
2018.12.05
17:08:50
+0530
New MACT Case No. 476279/16 Page No. 23/25
FORM -IVA
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN DEATH CASES
1. Date of accident. : 18.04.2015
2. Name of the deceased : Sh. Sumit Kapoor
3. Age of the deceased : 26 years
4. Occupation of the deceased : Private Job
5. Income of the deceased : Rs.11986/- as per Minimum Wages Act
6. Name, age and relationship of legal representative of deceased:-
S. Name Age Relation
No.
(I) Smt. Neeta Kapoor DOB: Mother of the deceased
21.02.1966
(ii) Sh. Arun Kant DOB: Father of the deceased
Kapoor 24.05.1960
Computation of Compensation
Sr. No. Heads Awarded by the Claim Tribunal
7. Income of the deceased(A) Rs.11,986/-
8. Add-Future Prospects (B) 40 %
9. Less-Personal expenses 1/2 rd deduction has been done
of the deceased(C)
10. Monthly loss of Rs.8390/-
dependency[(A+B)-C=D]
11. Annual loss of dependency Rs. 1,00,680/-
(Dx12) (Rs. 8390/- x 12)
12. Multiplier(E) 17
13. Total loss of dependency Rs. 17,11,560/- (Rs. 8390 x 12 x
New MACT Case No. 476279/16 Page No. 24/25
(Dx12xE= F) 17)
14. Medical Expenses(G) NIL
15. Compensation for loss of NIL
love and affection(H)
16. Compensation for loss of NIL
consortium(I)
17. Compensation for loss of Rs.15,000/-
estate(J)
18. Compensation towards Rs.15,000/-
funeral expenses(K)
19. TOTAL COMPENSATION Rs. 17,41,560/-
(F+G+H+I+J+K=L)
20. RATE OF INTEREST 9% per annum
AWARDED
21. Interest amount up to the Rs. 5,17,243.32/- (3 years 3 date of award (M) months and 18 days)
22. Total amount including Rs. 22,58,803.32/-
interest (L + M)
23. Award amount released Rs. 1,41,560/-
24. Award amount kept in Rs.16,00,000/-
FDRs
25. Mode of disbursement of Mentioned in the award the award amount to the claimant (s). (Clause 29)
26. Next date for compliance 05.01.2019 of the award. (Clause 31) (RAJ KUMAR) P.O.MACT (WEST-01) Delhi (28.11.2018) New MACT Case No. 476279/16 Page No. 25/25 New MACT Case No.476279/16 28.11.2018 Present: None Award has been passed separately.
File be consigned to Record Room.
A separate file be prepared for compliance report by the Nazir and put up the same on 05.01.2019.
A copy of this award be sent to the concerned Ld. Metropolitan Magistrate as well as DSLSA as per the provisions of the MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE (MCTAP).
( RAJ KUMAR ) Judge, MACT (WEST-01) Delhi (28.11.2018) New MACT Case No. 476279/16 Page No. 26/25