Delhi District Court
Anil Kumar & Ors. vs . Suresh & Ors. on 18 August, 2021
IN THE COURT OF SH. HARJYOT SINGH BHALLA
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNAL
PATIALA HOUSE COURTS, NEW DELHI
IN THE MATTER OF:
ANIL KUMAR & ORS. VS. SURESH & ORS.
MACP NO.85/16
1. Anil Kumar
S/o Sh. Madan Lal
2. Sunil Kumar
S/o Sh. Anil Kumar
3. Rajiv
S/o Sh. Anil Kumar
4. Rajni
D/o Sh. Anil Kumar
5. Barkha
D/o Sh. Anil Kumar
All R/o 186/22, Sadar Bazar, Delhi Cantt.
Delhi-110010.
Also at :- 1/186/22, 24 Quarter, Sadar Bazar,
Delhi Cantt., Delhi-110010.
......Petitioners/Claimants
Versus
1. Suresh (Driver)
MACP No. 85/16, MACP No. 84/16 & DAR No. 152/16 Page no.1 of 44
S/o Sh. Rajender
R/o 17/4, Friends Enclave, Sector-6 (West)
Sultanpuri, Delhi.
2. Rishi Pal (Owner)
S/o Sh. Hukam Chand
R/o H. No. 1170, Village & PO Mahipalpur,
New Delhi.
3. M/s HDFC Ergo General Insurance Co. Ltd. (Insurer)
Through its Manager
21 Ambadeep Building, K.G. Marg,
New Delhi.
.....Respondents
IN THE MATTER OF:
NITU & ORS. VS. SURESH & ORS.MACP NO. 84/16
1. Nitu W/o Late Sh. Sohan D/o Late Sh. Ramji Lal
2. Jatin S/o Late Sh. Sohan (Minor through its natural guardian/mother Smt. Nitu)
3. Sanjana D/o Late Sh. Sohan (Minor through its natural guardian/mother Smt. Nitu)
4. Sandeep S/o Late Sh. Sohan (Minor through its natural guardian/mother Smt. Nitu) All R/o 1/186/24 Qtrs, Sadar Bazaar, Delhi Cantt.
MACP No. 85/16, MACP No. 84/16 & DAR No. 152/16 Page no.2 of 44 Also at T-513, Mangolpuri, Delhi.
......Petitioners/Claimants Versus
1. Suresh (Driver) S/o Sh. Rajender R/o 17/4, Friends Enclave, Sector-6 (West) Sultanpuri, Delhi.
2. Rishi Pal (Owner) S/o Sh. Hukam Chand R/o H. No. 1170, Village & PO Mahipalpur, New Delhi.
3. M/s HDFC Ergo General Insurance Co. Ltd. (Insurer) Through its Manager 21 Ambadeep Building, K.G. Marg, New Delhi.
.....Respondents IN THE MATTER OF:
RAJIV @ RAJEEV VS. SURESH & ORS.DAR NO. 152/16
Rajiv @ Rajeev S/o Sh. Anil Kumar R/o 1/186/22, 24 Quarter, Sadar Bazar, Delhi Cantt., Delhi-110010.
......Petitioners/Claimants Versus
1. Suresh (Driver) S/o Sh. Rajender R/o 17/4, Friends Enclave, Sector-6 (West) Sultanpuri, Delhi.
2. Rishi Pal (Owner) MACP No. 85/16, MACP No. 84/16 & DAR No. 152/16 Page no.3 of 44 S/o Sh. Hukam Chand R/o H. No. 1170, Village & PO Mahipalpur, New Delhi.
3. M/s HDFC Ergo General Insurance Co. Ltd. (Insurer) Through its Manager 21 Ambadeep Building, K.G. Marg, New Delhi.
.....Respondents Date of filing of DARs : 06.01.2016 Date of filing of petitions : 01.12.2015 Date of framing of issues : 10.02.2016 Date of concluding arguments : 05.07.2021 Date of decision : 18.08.2021 AWARD/JUDGMENT
1. Since these cases are connected being arising out of the same accident, these are being taken up together for disposal.
2. The claim for compensation raised in the present claim petitions bearing MACP No. 85/16 relates to fatality suffered by the deceased Usha, W/o Sh. Anil Kumar. The claim has been preferred by her husband and four children.
3. The claim in MACP No. 84/16 relates to fatality suffered by the deceased Aniket @ Anil. The claim has been preferred by his widow sister and her three children.
4. The claim in DAR No. 152/16 relates to injuries suffered by the petitioner Rajiv in the same accident.
5. All three claims pertain to a road accident that took place on 02.11.2015 at about 01.30 pm, on parade road near Water Tank, PS Delhi Cantt., New Delhi regarding which one FIR bearing No. 0607/15 dated 02.11.2015, under Sections 279/304-A IPC was registered at PS Delhi MACP No. 85/16, MACP No. 84/16 & DAR No. 152/16 Page no.4 of 44 Cantt. The offending vehicle involved in this case is one bus bearing registration No. DL-1PB-1817, which at the relevant time of accident was being driven by respondent no. 1 (R-1), owned by respondent no. 2 (R-2) and insured with respondent no. 3 (R-3).
6. The case of petitioners, briefly stated, is that on the above said date, time and place of accident, both Usha W/o Sh. Anil Kumar and Aniket @ Anil, S/o Late Sh. Ramjilal were pillion riders on motorcycle bearing registration No. DL-6SAJ-7247, which was being driven by Rajeev, S/o Sh. Anil Kumar. When they reached Parade Road Near Water Tank, PS Delhi Cantt., New Delhi, their motorcycle was hit from behind by a speeding bus bearing registration No. DL-1PB-1817, which was being driven by R-1 in a rash and negligent manner. The offending bus kept on dragging the victims for a considerable distance even after hitting. Smt. Usha was seriously injured because of the accidental injuries and was taken to AIIMS Trauma Centre where she was declared dead by the hospital authorities. Sh. Aniket @ Anil was also declared brought dead due to accidental injuries by the DDU Hospital and Sh. Rajiv suffered grievous injuries in the said accident.
7. R-2 has filed his written statement stating that the accident took place due to negligence of petitioner Rajiv and also contributory negligence on the part of the deceased persons. It has further been claimed that the alleged vehicle was duly insured with the Insurance Company w.e.f. 19.09.2015 to 18.09.2016. It has further been claimed that the driver of offending vehicle was holding a valid and effective driving license at the relevant time of accident.
8. R-3/Insurance Company had, however, filed their legal offers for a sum of Rs.7,55,000/-, Rs. 85,000/- and Rs. 29,000/- in MACP No. 85/16, MACP No. 84/16 and DAR No. 152/16 respectively, which were not acceptable to the petitioners.
MACP No. 85/16, MACP No. 84/16 & DAR No. 152/16 Page no.5 of 44
9. On 10.02.2016, the issues were framed by the Ld. Predecessor of this tribunal for disposal of aforesaid DARs/claim petitions.
In MACP No. 85/161. Whether the deceased sustained fatal injuries in the accident which occurred on 02.11.2015 at about 13.30 hrs, on Parade Road near Water Tank, PS Delhi Cantt., New Delhi caused by rash and negligent driving of vehicle No. DL-1PB-1817 being driven by respondent no.1, owned by respondent no. 2 and insured with respondent no. 3 ? OPP.
2. Whether the LRs of the deceased are entitled for compensation? If so, to what amount and from whom?
3. Relief.
In MACP No. 84/161. Whether the deceased sustained fatal injuries in the accident which occurred on 02.11.2015 at about 13.30 hrs, on Parade Road near Water Tank, PS Delhi Cantt., New Delhi caused by rash and negligent driving of vehicle No. DL-1PB-1817 being driven by respondent no.1, owned by respondent no. 2 and insured with respondent no. 3 ? OPP.
2. Whether the LRs of the deceased are entitled for compensation? If so, to what amount and from whom?
3. Relief.
In DAR No. 152/161. Whether the petitioner sustained fatal injuries in the accident which occurred on 02.11.2015 at about 13.30 hrs, on Parade Road near Water Tank, PS Delhi Cantt., New Delhi caused by rash and negligent driving of vehicle No. DL-1PB-1817 being driven by respondent no.1, owned by respondent no. 2 and insured with respondent no. 3 ? OPP.
2. Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
3. Relief.
MACP No. 85/16, MACP No. 84/16 & DAR No. 152/16 Page no.6 of 44
10. It is necessary to mention here that vide order dated 27.08.2016, all three matters were consolidated for the purposes of trial and decision and MACP bearing No. 85/16 was made the lead case wherein the evidence was directed to be recorded and therefore, I am deciding all the three matters together.
11. I have heard the arguments advanced by Sh. Jatinder Kamra, Ld. Counsel for petitioners and Sh. Sanjeev Srivastava, Ld. Counsel for R- 3/Insurance Company. However, none has turned up on behalf of R-1 and R-2 for addressing final arguments. The case record has also been perused.
12. A perusal of the issues framed in the three cases reveals that the issue regarding involvement of vehicle No. DL-1PB-1817 and the negligence of its driver as also of contributory negligence of the victims runs common in all cases. Therefore, the issue no. 1 is being re-framed as a common issue as follows :-
1. Whether Smt. Usha (deceased in MACP No. 85/16), Sh. Aniket @ Anil (deceased in MACP No. 84/16) sustained fatal injuries and Sh.
Rajiv (injured in DAR No. 152/16) sustained injuries in the accident which occurred on 02.11.2015 at about 13.30 hrs, on Parade Road near Water Tank, PS Delhi Cantt., New Delhi caused by rash and negligent driving of vehicle No. DL-1PB-1817 being driven by respondent no.1, owned by respondent no. 2 and insured with respondent no. 3 ? OPP.
2. Whether the petitioners are entitled for compensation? If so, to what amount and from whom?
3. Relief.
13. My findings on the above issues are as under :-
MACP No. 85/16, MACP No. 84/16 & DAR No. 152/16 Page no.7 of 44 ISSUE No. 1
14. It is well settled that the procedure followed for proceedings conducted by an accident tribunal is similar to that followed by a civil court and in civil matters the facts are required to be established by preponderance of probabilities only and not by strict rules of evidence or beyond reasonable doubts as are required in a criminal prosecution. The burden of proof in a civil case is never as heavy as that is required in a criminal case, but in a claim petition under the Motor Vehicles Act, this burden is infact even lesser than that in a civil case.
15. Reference in this regard can be made to the propositions of law laid down by the Hon'ble Supreme Court in the case of Bimla Devi and others Vs. Himachal Road Transport Corporation and others, reported in (2009) 13 SC 530, which were reiterated in the subsequent judgment in the case of Parmeshwari Vs. Amir Chand and others 2011(1) SCR 1096 (Civil Appeal No.1082 of 2011) and also recently in another case Mangla Ram Vs. Oriental Insurance Co. Ltd. & Ors., 2018 Law Suit (SC) 303 etc.
16. Petitioners in support of their claim had examined on record total four witnesses and petitioner Anil Kumar of MACP No. 85/16, petitioner Nitu of MACP No. 84/16 and petitioner Rajiv of DAR No. 152/16 have themselves stepped into the witness box as PW1, PW2 and PW3 respectively. They had also examined Dr. Deepak Kumar, Associate Professor, PMR, PGIMER and Dr. RML Hospital, New Delhi as PW4 in order to prove the disability certificate of injured Rajiv of DAR No. 152/16. Since PW4 had nothing to do with the above accident or its manner, it is the testimony of petitioners only which matters for determination of present issue. The injured Rajiv is an eye witness and his testimony as PW3 is most relevant on the aspect of issue no. 1. The remaining witnesses PW1 and PW2 are not eye witnesses and therefore, their MACP No. 85/16, MACP No. 84/16 & DAR No. 152/16 Page no.8 of 44 testimony is not relevant for deciding the issue no. 1.
17. PW3 has tendered on record his examination-in-chief by way of an affidavit Ex. PW3/A and it has been observed that in the said affidavit, he has made specific depositions regarding the factum as well as manner of the said accident which had already been discussed above. During the course of cross examination of PW3, he admitted that all three persons were riding on the motorcycle which he was driving and that the deceased Aniket was not wearing any helmet. There was no further cross examination regarding the manner in which the bus was being driven nor the testimony that the bus had hit the motorcycle from behind and kept driving the victims was probed or challenged.
18. It has been observed that during such cross examination, nothing material could be extracted out from the witness which can make this tribunal to disbelieve or discard his testimony.
19. Moreover, the oral testimony of PW3 is also found to be duly corroborated by the documents filed along with the DAR by the IO, i.e. the most specifically the copy of charge-sheet containing documents and statements under Section 161 Cr.P.C. It has not been disputed that R-1 stands already charge-sheeted in the above criminal case for offences punishable under Sections 279/304-A IPC for causing fatal injuries on the person of deceased Usha of MACP No. 85/16 and Aniket @ Anil of MACP No. 84/16 and grievous injuries on the persons of petitioner Rajiv of DAR No. 152/16 by his rash and negligent driving of the above said vehicle and the same in itself is a strong circumstance to corroborate the testimony of petitioners on above aspects.
20. Apart from the above, R-1 himself was the best witness who could have stepped into the witness box to challenge the depositions being made by PW3 regarding the involvement of vehicle in the above accident, but he has not done so. Therefore, an adverse inference on this aspect is also required to be drawn against the respondents in view of the MACP No. 85/16, MACP No. 84/16 & DAR No. 152/16 Page no.9 of 44 law laid down in case of Cholamandalam M.S. General Insurance Company Ltd. Vs. Kamlesh, reported in 2009 (3) AD (Delhi) 310.
21. Therefore, in view of the above, it is held that oral evidence led on record by the petitioners on this issue is duly substantiated by the documentary evidence and it stands proved by the principle of preponderance of probabilities that the above accident resulting into death of deceased Usha of MACP No. 85/16 and Aniket @ Anil of MACP No. 84/16 and grievous injuries on the person of petitioner Rajiv of DAR No. 152/16 took place due to rash and negligent driving of the above offending bus bearing no. DL-1PB-1817, which was being driven by R-1, owned by R-2 and insured with R-3 at the relevant time of accident. Hence, this issue is accordingly decided in favour of the petitioner and against the respondents.
Compensation in MACP No. 85/16 22. ISSUE NO. 2 As rashness and negligence on part of driver of the above offending vehicle/R-1 has been satisfactorily proved, the petitioners have become entitled to be compensation for the death of their family member in the said accident, but the computation of compensation and liability to pay the same are required to be decided. The compensation to which the petitioners are entitled shall be as under the following heads:-
(i) Loss of dependency
23. Petitioner/PW1, inter-alia, has tendered on record a copy of aadhar card of his deceased wife Usha as Ex.PW1/2 and in this document, the year of birth of deceased is found mentioned as 1981 and accident in this case MACP No. 85/16, MACP No. 84/16 & DAR No. 152/16 Page no.10 of 44 took place on 02.11.2015 and going by this document, age of deceased at the relevant time of accident comes to around 34 years. Hence, in view of law laid down by the Hon'ble Supreme Court in case of Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr., (2009) 6 SCC 121, which has also been upheld by the Constitutional Bench of the Hon'ble Supreme Court in case of National Insurance Company Ltd. Vs. Pranay Sethi & Ors. SLP (Civil) No. 25590 of 2014, decided on 31.10.2017, the multiplier of '16' is held applicable in this case for calculating the loss of dependency caused to petitioners due to death of Smt. Usha.
24. Coming to earnings of deceased at the relevant time of accident, though it has been claimed by PW1 in his above affidavit Ex.PW1/A that his wife was housewife providing gratuitous services to the family. He has further deposed that the value added services of deceased ranged from housekeeping, cooking, bringing grocery, taking care of each member of family etc. However, still being a housewife, she is held entitled to the minimum wages applicable to a non-matriculate in view of law laid down by the Hon'ble High Court in the case of Royal Sundaram Alliance Ins. Co. Ltd. Vs Master Manmeet Singh & Ors., MACA No. 590/2011 decided on 30.01.2012, which has also been followed subsequently by the Hon'ble High Court in the cases of Oriental Ins. Co. Ltd. Vs. Mukesh Kumar & Ors., MAC App. 721/2013 decided on 21.01.2015 and TATA AIG General Insurance Co. Ltd. Vs. Priyanka & Ors. and Dharambir Singh & Ors., 2018 LawSuit (Del) 3635. The minimum wages of a non-matriculate at relevant of accident in the State of NCT of Delhi were Rs.10,140/- pm and the same will apply in this case as the documents tendered on record show that the deceased was residing in Delhi at that time. Thus, her annual earnings come to Rs.1,21,680/- (Rs.10,140/- X 12).
25. Now coming to the dependency aspect, this claim petition has MACP No. 85/16, MACP No. 84/16 & DAR No. 152/16 Page no.11 of 44 been filed by five petitioners, i.e. P-1 to P-5, who are husband and children of deceased. All the petitioners are considered dependent upon the deceased. Hence, in terms of law laid down by the Hon'ble Supreme Court in the cases of Sarla Verma and Pranay Sethi & Ors. (Supra), only 1/4th of earnings of deceased shall be deducted towards her personal and living expenses.
26. Further, in view of the law laid down in the case of Pranay Sethi & Ors. (Supra), the petitioners are also held entitled to an addition of 40% of the above amount of her earnings towards future prospects since the deceased was below 40 years of age at the time of accident.
27. Thus, the loss of dependency qua deceased in the present case comes to Rs.20,44,224/- (Rs.10,140/- X 3/4 X 140/100 X 16 X 12) and the said amount is being awarded to the petitioners under this head.
(ii) COMPENSATION UNDER NON-PECUNIARY HEADS
28. In terms of propositions of law laid down by the Hon'ble Supreme Court in case of Pranay Sethi (Supra), the petitioners are also held entitled to amounts of Rs.15,000/-, each under the heads of loss of estate and funeral expenses, i.e. a total amount of Rs.30,000/- under both these heads.
29. In view of the recent Full Court judgment dated 30.06.2020 in case United India Insurance Co. Vs. Satinder Kaur @ Satwinder Kaur & Ors. (2020) 06 SC CK 0036 in Civil Appeal Nos. 2705 and 2706 of 2020 and the Division Bench judgment dated 07.09.2020 in case New India Assurance Co. Ltd. Vs. Somwati & Ors. (2020) 09 SC CK 0012 in Civil Appeal Nos. 3093-3099 of 2020 pronounced by the Hon'ble Supreme Court after discussing the law laid down in Pranay Sethi's case (supra), MACP No. 85/16, MACP No. 84/16 & DAR No. 152/16 Page no.12 of 44 compensation under the head 'loss of love and affection' cannot be separately granted and has to be considered within the head 'loss of consortium'. Therefore, the petitioners are entitled to an amount of Rs.40,000/- each only towards 'loss of consortium', besides the above amount of Rs.30,000/- granted under the general and conventional heads towards 'loss of estate' and 'funeral expenses.
30. Further, it has been noticed that the Constitutional Bench judgment in case of Pranay Sethi (Supra) was given by the Hon'ble Supreme Court on 31.10.2017 and it was also laid down by their Lordships in the said case that compensation awarded under the conventional heads shall be enhanced at the rate of 10% in every three years and a period of 3 years since then stands already expired. Hence, the petitioners in this case are also entitled to an increase @ 10% on the amounts awarded under the conventional heads of 'loss of estate', 'funeral charges' and 'loss of consortium'.
31. Hence, the petitioners are being awarded a total sum of Rs. 2,53,000/- [(Rs.30,000 + 10% of 30,000= 33,000) + (40,000 X 5 + 10% of 40,000 X 5 = 2,20,000/-)] under this head.
ISSUE NO.3/RELIEF
32. The petitioners are thus held entitled to a sum of Rs. 22,97,224/- (Rs. 20,44,224/- + Rs. 2,53,000/-) (Rupees Twenty Two Lakhs Ninety Seven Thousand Two Hundred Twenty Four only) along with interest from the date of filing of DAR. However, it is directed that the amount of interim award and interest for the suspended period, if any, during the course of this inquiry, shall be liable to be excluded from the above amount and calculations of compensation.
MACP No. 85/16, MACP No. 84/16 & DAR No. 152/16 Page no.13 of 44 APPORTIONMENT
33. As discussed above, all the petitioners are considered as dependent upon the deceased. Therefore, out of the awarded amount along with proportionate interest, 20% share each is given to P-1 to P-5.
RELEASE
34. Out of amount awarded to P-1, 75% amount is directed to be kept with UCO Bank, Patiala House Court, New Delhi in the Motor Accident Claims Annuity Deposit (MACAD) in form of 40 monthly fixed deposit receipts (FDRs) of equal amounts for a period of 1 to 40 months in succession, as per scheme formulated by the Hon'ble Delhi High Court vide order dated 01.05.2018 in FAO No. 842/2003, titled as Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors. and as implemented vide subsequent order dated 07.12.2018 passed in the said case. The amount of FDRs on maturity would be released in his savings/MACT Claims SB Account bearing No. 6383101000454, having IFSC Code CNRB0006383, being maintained with Canara Bank, Delhi Cantt., New Delhi and the remaining 25% amount is also directed to be released into his above said account, which can be withdrawn through withdrawal form and utilized by him.
35. Out of amount awarded to P-2, 75% amount is directed to be kept with UCO Bank, Patiala House Court, New Delhi in the Motor Accident Claims Annuity Deposit (MACAD) in form of 40 monthly fixed deposit receipts (FDRs) of equal amounts for a period of 1 to 40 months in succession, as per scheme formulated by the Hon'ble Delhi High Court vide order dated 01.05.2018 in FAO No. 842/2003, titled as Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors. and as implemented vide subsequent order dated 07.12.2018 passed in the said case. The amount of FDRs on MACP No. 85/16, MACP No. 84/16 & DAR No. 152/16 Page no.14 of 44 maturity would be released in his savings/MACT Claims SB Account bearing No. 6383101000450, having IFSC Code CNRB0006383, being maintained with Canara Bank, Delhi Cantt., New Delhi and the remaining 25% amount is also directed to be released into his above said account, which can be withdrawn through withdrawal form and utilized by him.
36. Out of amount awarded to P-3, 75% amount is directed to be kept with UCO Bank, Patiala House Court, New Delhi in the Motor Accident Claims Annuity Deposit (MACAD) in form of 40 monthly fixed deposit receipts (FDRs) of equal amounts for a period of 1 to 40 months in succession, as per scheme formulated by the Hon'ble Delhi High Court vide order dated 01.05.2018 in FAO No. 842/2003, titled as Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors. and as implemented vide subsequent order dated 07.12.2018 passed in the said case. The amount of FDRs on maturity would be released in his savings/MACT Claims SB Account bearing No. 6383101000452, having IFSC Code CNRB0006383, being maintained with Canara Bank, Delhi Cantt., New Delhi and the remaining 25% amount is also directed to be released into his above said account, which can be withdrawn through withdrawal form and utilized by him.
37. Out of amount awarded to P-4, 75% amount is directed to be kept with UCO Bank, Patiala House Court, New Delhi in the Motor Accident Claims Annuity Deposit (MACAD) in form of 40 monthly fixed deposit receipts (FDRs) of equal amounts for a period of 1 to 40 months in succession, as per scheme formulated by the Hon'ble Delhi High Court vide order dated 01.05.2018 in FAO No. 842/2003, titled as Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors. and as implemented vide subsequent order dated 07.12.2018 passed in the said case. The amount of FDRs on maturity would be released in her savings/MACT Claims SB Account bearing No. 6383101000453, having IFSC Code CNRB0006383, being maintained with Canara Bank, Delhi Cantt., New Delhi and the remaining MACP No. 85/16, MACP No. 84/16 & DAR No. 152/16 Page no.15 of 44 25% amount is also directed to be released into her above said account, which can be withdrawn through withdrawal form and utilized by her.
38. Out of amount awarded to P-5, 75% amount is directed to be kept with UCO Bank, Patiala House Court, New Delhi in the Motor Accident Claims Annuity Deposit (MACAD) in form of 40 monthly fixed deposit receipts (FDRs) of equal amounts for a period of 1 to 40 months in succession, as per scheme formulated by the Hon'ble Delhi High Court vide order dated 01.05.2018 in FAO No. 842/2003, titled as Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors. and as implemented vide subsequent order dated 07.12.2018 passed in the said case. The amount of FDRs on maturity would be released in her savings/MACT Claims SB Account bearing No. 6383101000449, having IFSC Code CNRB0006383, being maintained with Canara Bank, Delhi Cantt., New Delhi and the remaining 25% amount is also directed to be released into her above said account, which can be withdrawn through withdrawal form and utilized by her.
39. The above disbursement to the petitioners is, however, subject to addition of future interest till deposits proportionately and also deduction of proportionate tax on the interest amount or amount of interim award, if any, to/from their above shares.
40. The bank shall not permit any joint names to be added in the savings bank account or MACAD scheme account of petitioners i.e. the above accounts of petitioners shall be individual account and not a joint account.
41. The original fixed deposits be retained by the UCO Bank, PHC, New Delhi in safe custody. However, the statement containing FDR numbers, amounts, dates of maturity and maturity amounts shall be furnished by the said bank to the petitioners and the above amounts shall be released in account of petitioners by the Manager, UCO Bank, PHC, ND through RTGS/NEFT/or any other electronic mode.
MACP No. 85/16, MACP No. 84/16 & DAR No. 152/16 Page no.16 of 44
42. The maturity amounts of the FDR (s) on monthly basis net of TDS be credited by Electronic Clearing System (ECS) in the above accounts of petitioners.
43. No loan, advance or withdrawal or pre-mature discharge be allowed on the MACAD without permission of the Court.
Compensation in MACP No. 84/16 ISSUE NO. 2
44. As rashness and negligence on part of driver of the above offending vehicle/R-1 has been satisfactorily proved, the petitioners have become entitled to be compensation for the death of their family member in the said accident, but the computation of compensation and liability to pay the same are required to be decided. The compensation to which the petitioners are entitled shall be as under the following heads:-
(i) Loss of dependency
45. Widow sister of deceased has appeared as PW2 and in her affidavit, she had deposed that her deceased brother was aged around 25 years at the relevant time of accident. She has further deposed that her deceased brother was gainfully employed in a private job at Parade Road, Delhi Cantt. as Safai Karamchari under the outsourced contract given to Ganpati Traders, Proprietor Manju Verma, Block 3-4/45, Shyam Singh Street, Gopinath Bazar, Delhi Cantt. and was getting a monthly salary of Rs. 10,000/-. She has further deposed that the deceased was unmarried and his parents had predeceased him. She has further deposed that the MACP No. 85/16, MACP No. 84/16 & DAR No. 152/16 Page no.17 of 44 petitioner being widow sister and her children were financially and emotionally dependent upon the deceased and they were residing with the deceased. In her cross examination, she has admitted that her husband died about nine years back and after the demise of her husband, she is residing in her matrimonial home. She has further deposed that previously, she was unemployed, but after the death of her brother, she is working as a house maid. Since no proof of income and occupation of the deceased has come on record, it is deemed fit that he be taken as unskilled worker since his special skill or education have also not been proved. The minimum wages have to be taken accordingly. The minimum wages for unskilled workers were Rs. 9,178/- per month at the relevant time of accident.
46. PW1, in her affidavit, has claimed the age of deceased as 25 years at the time of accident. However, not even a single document has been placed on record to show that the age of the deceased was indeed 25 years. During course of arguments, it was pointed out that the age of deceased was mentioned as 25 years. That is the only document where the age of deceased is mentioned. Therefore, this tribunal has no option but to take the age of deceased as 25 years since the respondents also have not questioned or challenged the deposition of the claimant PW2 in this regard. Hence, in terms of law laid down by the Hon'ble Supreme Court in the case of Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr., (2009) 6 SCC 121, which has also been approved in the Constitution Bench decision of the Hon'ble Supreme Court in the case National Insurance Company Ltd. Vs. Pranay Sethi & Ors. SLP (Civil) No. 25590 of 2014, decided on 31.10.2017 and also reiterated by a Three Judges Bench of the Hon'ble Supreme Court in its subsequent judgment dated 09.02.2018 in Civil Appeal No. 7176/2015 in the case of Sube Singh & Anr. Vs. Shyam Singh (Dead) & Ors. and followed by MACP No. 85/16, MACP No. 84/16 & DAR No. 152/16 Page no.18 of 44 the Hon'ble Delhi High Court in its various decisions, including the judgment dated 05.04.2018 passed in MACA No.94/18 in the case K.L. Jadhav & Ors. Vs. Abhishek & Ors., the multiplier in case of an unmarried deceased shall be as per age of the deceased himself and not according to the age of his parents and hence, the multiplier of '18' is held applicable in the present case.
47. Now coming to the dependency aspect, since it is not being claimed by petitioners that the deceased was married at the time of accident and hence, in terms of law laid down by the Hon'ble Supreme Court in the cases of Sarla Verma and Pranay Sethi & Ors. (Supra), 50% of his above earnings is required to be deducted towards his personal and living expenses and number of dependents for calculating his personal or living expenses becomes irrelevant.
48. Further, in view of the law laid down in the case of Pranay Sethi & Ors. (Supra), the petitioners, if successful, will be held entitled to an addition of 40% of the above amount of his earnings towards future prospects since the deceased was below the age of 40 years of age at the time of accident and his job/work was not permanent.
49. However, it may be pertinent to note here that during cross examination of PW2, the witness categorically admitted that after the demise of her husband, she was residing at Delhi Cantt., Sadar Bazar, which was her matrimonial home. The documents on record, i.e. copy of passbook of the deceased shows that he was residing at Mangolpuri, N Block, New Delhi, but the branch in which his account was operating, was in Delhi Cantt., Sadar Bazar, New Delhi. The oral testimony of PW2 that her brother was residing with her at her matrimonial home where her brother in law was also residing, cannot be believed in view of the address of the deceased mentioned in the bank passbook. Surprisingly, no other document, identity proof or address proof of the deceased has been MACP No. 85/16, MACP No. 84/16 & DAR No. 152/16 Page no.19 of 44 produced by PW2, which she might have been able to access in case the deceased was residing with her. The fact that as per PW2, the deceased was working at Gopinath Bazar, Delhi Cantt. explains why his bank account was opened at Delhi Cantt., Branch and yet his address was shown as of Mangolpuri, Delhi. In these circumstances, it cannot be held that that claimants were economically dependent upon the deceased. Therefore, the claimants are only entitled to be compensated under other heads, but not under the present head.
(ii) COMPENSATION UNDER NON-PECUNIARY HEADS
50. In terms of propositions of law laid down by the Hon'ble Supreme Court in case of Pranay Sethi (Supra), the petitioners are also held entitled to amounts of Rs.15,000/-, each under the heads of loss of estate and funeral expenses, i.e. a total amount of Rs.30,000/- under both these heads.
51. In view of the recent Full Court judgment dated 30.06.2020 in case United India Insurance Co. Vs. Satinder Kaur @ Satwinder Kaur & Ors. (2020) 06 SC CK 0036 in Civil Appeal Nos. 2705 and 2706 of 2020 and the Division Bench judgment dated 07.09.2020 in case New India Assurance Co. Ltd. Vs. Somwati & Ors. (2020) 09 SC CK 0012 in Civil Appeal Nos. 3093-3099 of 2020 pronounced by the Hon'ble Supreme Court after discussing the law laid down in Pranay Sethi's case (supra), compensation under the head 'loss of love and affection' cannot be separately granted and has to be considered within the head 'loss of consortium'. Therefore, the petitioners are entitled to an amount of Rs.40,000/- each only towards 'loss of consortium', besides the above amount of Rs.30,000/- granted under the general and conventional heads towards 'loss of estate' and 'funeral expenses.
MACP No. 85/16, MACP No. 84/16 & DAR No. 152/16 Page no.20 of 44
52. Further, it has been noticed that the Constitutional Bench judgment in case of Pranay Sethi (Supra) was given by the Hon'ble Supreme Court on 31.10.2017 and it was also laid down by their Lordships in the said case that compensation awarded under the conventional heads shall be enhanced at the rate of 10% in every three years and a period of 3 years since then stands already expired. Hence, the petitioners in this case are also entitled to an increase @ 10% on the amounts awarded under the conventional heads of 'loss of estate', 'funeral charges' and 'loss of consortium'.
53. Hence, the petitioners are being awarded a total sum of Rs. 2,09,000/- [(Rs.30,000 + 10% of 30,000= 33,000) + (40,000 X 4 + 10% of 40,000 X 4 = 1,76,000/-)] under this head.
ISSUE NO.3/RELIEF
54. The petitioners are thus held entitled to a sum of Rs. 2,09,000/- (Rupees Two Lakhs Nine Thousand only) along with interest from the date of filing of DAR. However, it is directed that the amount of interim award and interest for the suspended period, if any, during the course of this inquiry, shall be liable to be excluded from the above amount and calculations of compensation.
APPORTIONMENT
55. P-1 is being awarded the amount of Rs. 77,000/-, i.e. Rs. 44,000/- granted under the head 'loss of consortium and amount of Rs.33,000/- granted under the general and conventional heads towards 'loss of estate' and 'funeral expenses along with proportionate interest. P-2 to P-4 are being awarded the amount of Rs. 44,000/- each granted under MACP No. 85/16, MACP No. 84/16 & DAR No. 152/16 Page no.21 of 44 the head 'loss of consortium' along with proportionate interest.
RELEASE
56. The above amount of Rs.77,000/- with proportionate interest granted to P-1 be released to her in her MACT/saving bank account bearing No. 6383101000451, having IFSC code CNRB0006383, being maintained with Canara Bank, Delhi Cantt., New Delhi through RTGS or any other electronic mode of transfer of money, which can be withdrawn by her through a withdrawal form.
57. The above amount of Rs.44,000/-with proportionate interest granted to P-2 be released to him in his MACT/saving bank account bearing No. 6383101000448 having IFSC code CNRB0006383, being maintained with Canara Bank, Delhi Cantt., New Delhi through RTGS or any other electronic mode of transfer of money, which can be withdrawn by him through a withdrawal form.
58. Entire shares of P-3 and P-4 are directed to be kept in FDRs till they attain the age of 21 years or for marriage whichever is earlier. However, the monthly interest accrued thereon shall also be released in the above bank account of their mother/P-1 in order to meet their educational and other expenses and amounts of their FDRs on maturity would be released in their respective MACT/saving bank accounts bearing Nos. 6383120000014 and 6383120000015 respectively having IFSC code CNRB0006383, being maintained with Canara Bank, Delhi Cantt., New Delhi.
59. To facilitate deposits in above scheme and disbursement of the awarded amount, the petitioners shall also open savings bank accounts in the UCO Bank, Patiala House Court, New Delhi in their names, if not opened earlier.
MACP No. 85/16, MACP No. 84/16 & DAR No. 152/16 Page no.22 of 44
60. The above disbursement to petitioners is, however, subject to addition of future interest till deposits proportionately and also deduction of proportionate tax on the interest amount or amount of interim award, if any.
61. The banks shall not permit any joint names to be added in the savings bank accounts or MACAD scheme accounts of the petitioners i.e. the above accounts of petitioners shall be individual accounts and not joint accounts.
62. The original fixed deposits be retained by the UCO Bank, PHC, New Delhi in safe custody. However, the statement containing FDR numbers, amounts, dates of maturity and maturity amounts shall be furnished by the said bank to the petitioners.
63. The maturity amounts of the FDR (s) on monthly basis net of TDS be credited by Electronic Clearing System (ECS) in the above accounts of petitioners.
64. No loan, advance or withdrawal or pre-mature discharge be allowed on the MACAD without permission of the Court.
Compensation in DAR No. 152/16 ISSUE NO.2
65. As the issue no.1 has been proved in affirmative and in favour of petitioner, the petitioner has become entitled to be compensated for the injuries and disability suffered in above accident, but the computation of compensation and liability to pay the same are required to be decided.
66. In terms of provisions contained in Section 168 of the MV Act the compensation which is to be awarded by this tribunal is required to be 'just'. In the injury cases a claimant is entitled to two different kinds of MACP No. 85/16, MACP No. 84/16 & DAR No. 152/16 Page no.23 of 44 compensations i.e. pecuniary as well as non-pecuniary damages. The pecuniary damages or special damages are those damages which are awarded and designed to make good the losses which are capable of being calculated in terms of money and the object of awarding these damages is to indemnify the claimant for the expenses which he had already incurred or is likely to incur in respect of the injuries suffered by him in the accident. The non-pecuniary or general damages are those damages which are incapable of being assessed by arithmetical calculations. The pecuniary or special damages generally include the expenses incurred by the claimant towards his treatment, special diet, conveyance, cost of nursing/ attendant, loss of income/earning capacity etc. and the non-pecuniary damages generally include the compensation for the mental or physical shock, pain and sufferings, loss of amenities of life, marriage prospects and disfiguration etc. The above categories falling under both the heads of compensation are not exhaustive in nature but only illustrative. It is also necessary to state here that no amount of money or compensation can put the injured/claimant exactly in the same position or place where he was before the accident and an effort is to be made only to reasonably compensate him or to put him almost in the same place or position where he could have been if the alleged accident had not taken place and this compensation is to be assessed in a fair, reasonable and equitable manner. The object of compensating him is also not to reward him or to make him rich in an unjust manner. It is also well settled that the 'just' compensation to be awarded to the claimant has to be calculated objectively and it may involve some guess work in calculating the different amounts which the claimant may be entitled under the different heads of compensation. Reference in this regard can be made on some of important judgments on the subject like the judgment in the case of R. D. Hattangadi Vs. Pest Control (India) Pvt.
MACP No. 85/16, MACP No. 84/16 & DAR No. 152/16 Page no.24 of 44 Ltd., AIR 1995, SC 755, Arvind Kumar Mishra Vs. New India Assurance Company Limited, (2010) 10 SCC 254 and Raj Kumar Vs. Ajay Kumar & Anr., (2011)1 SCC 343.
67. In light of the above legal propositions, the amount of compensation which can be considered to be 'just' in the opinion of this tribunal shall be as under:-
(i) Medical or Treatment Expenses
68. As stated above, the petitioner has suffered 9% permanent physical disability in the above accident. The nature, extent and duration of treatment taken by him and effect of above permanent disability on his earning capacity will be discussed in the succeeding head and in the present head only his claim for compensation towards treatment expenses is to be discussed.
69. It is observed that the petitioner has tendered on record his medical bills as Ex. PW3/6 which are totalling to an amount of Rs. 5,242/. There are certain bills such as one receipt dated 02.04.2016 for a sum of Rs. 1000/-, one bill dated 23.01.2016 for a sum of Rs. 1016/- and one undated receipt of Rs. 10,000/- issued by Krishna Clinic which were filed, but never exhibited. Hence, these bills are not taken into consideration for calculations under this head. Since the above medical bills and expenses of petitioner are found to be in consonance with the treatment taken and injuries suffered by him, he is being awarded the above amount of Rs.5,242/- against his medical expenses.
(ii) Loss of actual earnings
70. As stated above, the petitioner has suffered grievous injuries MACP No. 85/16, MACP No. 84/16 & DAR No. 152/16 Page no.25 of 44 resulting into 9% permanent physical disability in the above accident. As per discharge summary Ex. PW3/4, t h e petitioner was admitted in JPN Apex Trauma Centre, AIIMS Hospital, Delhi on 02.11.2015 and was discharged from the hospital on 11.11.2015. His discharge summary further reflects that he was diagnosed with "RTI + Left upper limb laceration and abrasion + left lower limb abrasion and laceration". The petitioner in his above affidavit has stated that he had suffered injuries on left knee and foot, right upper arms and left shoulder, left forearm adjacent to previous and left hand coupled with skin loss and muscle exposed. He has further stated that even after long treatment, left hand had developed scar and infection. He also took treatment from various hospitals for removal of scar on his left hand, but the scar on left hand had not vanished. The petitioner has also placed on record one photograph showing permanent scar on left hand as Ex. PW3/7.
71. In his above affidavit Ex.PW3/A, the petitioner has claimed that he was employed as support staff at Station Headquarter, Delhi Cantt. He has further claimed that he had suffered loss of earnings of Rs. 30,000/- for about three months due to the accidental injuries. During his cross examination, he has deposed that he was working with Delhi Cantt. HQ Area coming under the Ministry of Defence as Supervisor under a private contract and the salary was being credited in the bank account by the contractor amounting to Rs. 14,500/- including PF etc. He has further deposed that he was not paid his salary for a period of about three months and he was not compensated in any manner by his employer. The petitioner has neither placed on record any salary slip nor produced any bank account statement to show the credit of salary in his account. Hence, in the absence of their being any evidence, the profession and income of the petitioner has not been proved. He has also not been able to show his educational MACP No. 85/16, MACP No. 84/16 & DAR No. 152/16 Page no.26 of 44 qualification or any document showing acquisition of technical skill. Therefore, the petitioner is held entitled to be compensated only at the rates of minimum wages for unskilled workers in force in Delhi at the time of accident, which were Rs. 9,178/- per month.
72. During his cross examination, the petitioner has deposed that he was unable to do work for about 2.5-3 months due to accidental injuries and he was not paid his salary for a period of three months. Hence, considering the nature of injury, the medical documents and procedure undergone by the claimant, it can safely be inferred that the claimant would not have been in a position to go to work for atleast three months.
73. Therefore, under this head, he is being awarded an amount of Rs. 27,534/- (Rs. 9,178/- X 3).
(iii) Loss of future earnings due to disability
74. The nature of injuries suffered by petitioner as well as the extent and duration thereof have already been discussed in detail. It has also been stated above that the petitioner has suffered 9% permanent physical disability in the above accident.
75. It is well settled that the physical disability and functional disability of a person are not one and the same things and functional disability of a person refers to his loss of earning capacity due to the said disability. This functional disability or loss of earning capacity of a person is required to be assessed separately by the claims tribunal with reference to nature of work or profession etc. of the said person and it has no reference to the percentage of permanent disability given in his disability certificate. The law with regard to grant of MACP No. 85/16, MACP No. 84/16 & DAR No. 152/16 Page no.27 of 44 compensation due to permanent disability and determination of functional disability etc. was well settled by the Hon'ble Supreme Court in the case of Raj Kumar Vs. Ajay Kumar & Anr., (2011) 1 SCC 343.
76. As stated above, the petitioner had suffered permanent disability to the extent of 9% in above accident. The petitioner had examined PW4 Dr. Deepak Kumar, Associate Professor, PMR Department, Dr. RML Hospital, New Delhi for proving the disability certificate of injured Rajeev as Ex. PW4/A. As per disability certificate, the patient is a case of road traffic accident with upper limb laceration with abrasions over left forearm flexor aspect and his permanent physical disability is 9%. PW4 in his examination in chief, upon being asked by the Court, has deposed that the overall percentage of disability of patient is only with respect to left upper limb and not with respect to whole body. He has further deposed that out of the above disability, only 3% is related to movement/functioning of the said limb and the remaining 6% is due to disfigurement of said limb.
77. Thus, on the basis of oral and documentary evidence led on record and the legal position discussed above, the functional disability of petitioner resulting from the above accident is taken as 5%, i.e. around half of the given percentage of his disability.
78. The petitioner has also brought on record a copy of his Aadhar card as Ex. PW3/1 and copy of his driving license as Ex. PW3/2. In aadhar card, the year of birth is mentioned as 1993 whereas in driving license, the age of petitioner is found recorded as 10.01.1989. Hence, going by the copy of driving license Ex. PW3/2, the date of birth is 10.01.1989. The accident in this case took place on 02.11.2015 and thus, the age of petitioner on the date of accident comes to 26 years, 9 months and around 23 days. Hence, in MACP No. 85/16, MACP No. 84/16 & DAR No. 152/16 Page no.28 of 44 view of the law laid down by the Hon'ble Supreme Court in case of Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr., (2009) 6 SCC 121, which has also been upheld by the Constitution Bench of the Hon'ble Supreme Court in a recent judgment dated 31.10.2017 given in the case of National Insurance Company Ltd. Vs. Pranay Sethi & Ors. SLP (Civil) No. 25590 of 2014 and further in view of provisions laid down by Delhi High Court in case New India Assurance Co. Ltd. Vs. Harsh Vardhan & Ors., MACA No. 521/2008, decided on 20.07.2017, the multiplier of 17 is held applicable for calculating the loss of future earnings of the petitioner arising out of his above disability.
79. Further, the petitioner is also held entitled to 40% addition in his income towards future prospectus in view of the law laid down by the Hon'ble Delhi High Court in the cases of Bajaj Alliance Gen. Insurance Co. Ltd. Vs. Rajeshwar Prasad & Ors., MACA 858/15 decided on 19.07.2017 and Faiyaz Ahmad Khan Vs. Chandra Pal Singh & Ors., MACA No.351/17 decided on 08.08.2017 as well as in the Constitution Bench Decision of the Hon'ble Supreme Court in case of Pranay Sethi (Supra) as he was below 40 years of age at the time of accident.
80. Thus, the loss of future earnings and prospects caused to the petitioner due to his above injury and permanent disability comes to Rs.1,31,062/- (rounded off) (Rs.9,178/- X 140/100 X 5/100 X 12 X
17) and the same is being awarded to him under this head.
(iv) Mental and Physical Shock, Pain and Sufferings & Loss of Amenities.
81. The nature of injuries and disability suffered by the petitioner, its extent and duration of his treatment etc. have already been discussed in MACP No. 85/16, MACP No. 84/16 & DAR No. 152/16 Page no.29 of 44 detail. Though, it is not possible to exactly compensate him for the shock, pain and sufferings etc. which he had actually suffered because of the above injuries and disability, but as stated above, an effort has to be made to compensate him for the same in a just and reasonable manner. Hence, keeping in view the extent and nature of the injuries suffered by petitioner and duration of the treatment taken by him etc., an amount of Rs.20,000/- each is being awarded to him towards mental and physical shock & pain and sufferings and besides this, an amount of Rs.20,000/- is also awarded to him towards the loss of amenities suffered during the said period of his treatment and immobility. Thus, he is awarded a total amount of Rs.60,000/- under this head.
(v) Conveyance, Special Diet and Attendant Charges
82. In his affidavit Ex. PW3/A, though the petitioner has claimed that he had spent Rs. 40,000/- towards special diet, conveyance and attendant, but there is no documentary evidence to substantiate his above claims. Still this tribunal can very well take note of the requirement of conveyance for petitioner for frequently visiting the hospitals and doctors in connection with his treatment and hospitalization and also that of the special diet for his early recovery from the injuries suffered because of the above accident. Hence, an amount of Rs.10,000/- is being awarded to the petitioner towards the requirements of conveyance and Rs. 3000/- per month for three months towards the requirement of special diet.
83. Besides this, an amount of Rs. 3,000/- per month for three months is also being granted to him towards attendant charges or for the gratuitous services rendered by his family members during the MACP No. 85/16, MACP No. 84/16 & DAR No. 152/16 Page no.30 of 44 period of hospitalization and immobility.
84. Therefore, a total amount of Rs.28,000/- is being awarded to him under this head.
Issue No.3/Relief
85. The petitioner is thus awarded a sum of Rs. 2,51,838/- (Rs. 5,242/- + 27,534/- + 1,31,062/- + 60,000/- + 28,000/-) (Rupees Two Lakhs Fifty One Thousand Eight Hundred Thirty Eight only) along with interest. However, it is directed that the amount of interim award and interest for the suspended period, if any, during the course of this inquiry, shall be liable to be excluded from the above amount and calculations of compensation.
RELEASE
86. Out of the awarded amount, 70% amount is directed to be kept in 2 annual FDRs of equal amounts for a period of 1 and 2 years in succession with UCO Bank, Patiala House Court, New Delhi and the remaining 3 0 % amount is directed to be released into his saving bank account bearing No. 6383101000452 being maintained with Canara Bank, Delhi Cantt., New Delhi having IFSC Code CNRB0006383, which can be withdrawn by a withdrawal form and utilized by him. The amount of FDRs on maturity would be released in his above saving bank account.
87. To facilitate deposits in the above scheme and disbursement of the awarded amount, the petitioner shall also open a savings bank account in the UCO Bank, Patiala House Court, New Delhi, if not opened earlier.
MACP No. 85/16, MACP No. 84/16 & DAR No. 152/16 Page no.31 of 44
88. The above disbursement to the petitioner is, however, subject to addition of future interest till deposits proportionately and also deduction of proportionate tax on the interest amount or amount of interim award, if any.
89. The bank shall not permit any joint name (s) to be added in the savings bank account or MACAD scheme account of the petitioner i.e. the above account (s) of the petitioner shall be individual account (s) and not a joint account (s).
90. The original fixed deposits be retained by the UCO Bank, PHC, New Delhi in safe custody. However, the statement containing FDR numbers, amounts, dates of maturity and maturity amounts shall be furnished by the said bank to the petitioner and the above amounts shall be released in account of the petitioner by the Manager, UCO Bank, PHC, ND through RTGS/NEFT/or any other electronic mode.
91. The maturity amounts of the FDR (s) on monthly basis net of TDS be credited by Electronic Clearing System (ECS) in the above account of the petitioner.
92. No loan, advance or withdrawal or pre-mature discharge be allowed on MACAD without permission of the Court.
Contributory Negligence in all three cases and its effect
93. Considering that the claimant Rajeev of DAR No. 152/16 was riding a motorcycle with two pillion riders which would have definitely affected his balance and ability to handle the motorcycle as also the same was against the law, the claim that he was guilty of contributory negligence has to be accepted and 25% amount out of the compensation granted in DAR No. 152/16 is liable to be deducted.
MACP No. 85/16, MACP No. 84/16 & DAR No. 152/16 Page no.32 of 44
94. Similarly, the victim Usha Devi of MACP No. 85/16 must have knowledge that she was triple riding on a motorcycle and she chose to continue to ride on the same, her conduct also shows contributory negligence. However, contributory negligence on her part cannot be equated with contributory negligence on the part of driver. Therefore, 15% deductions ought to be made out of the compensation granted on her death in MACP No. 85/16.
95. Lastly, though there was contributory negligence on the part of deceased Aniket, since only a small amount of compensation under the non pecuniary heads has been granted, the tribunal is of the view that no deduction is required to be made from the compensation granted in MACP No. 84/16.
LIABILITY IN ALL THREE CASES
96. All the respondents are though both being held jointly and severally liable to pay the awarded amount of compensation to petitioners, but R-3 being insurer of offending vehicle is directed to deposit the above award amount with UCO Bank, Patiala House Court Branch, along with interest @ 6% per annum, considering the low rate of interest, from the date of filing of the DARs either by way of crossed cheques/DDs in name of the petitioners or by way of deposit in any e- form in bank account being maintained in the above said bank in name of this tribunal within 30 days from today. In case even after passage of 90 days from today, R-3 fails to deposit this compensation with interest, in that event R-3 shall be liable to pay interest at the rate of 9% per annum for the period of delay beyond 90 days from today and in light of judgment of the Hon'ble High Court in the case of New India MACP No. 85/16, MACP No. 84/16 & DAR No. 152/16 Page no.33 of 44 Assurance Company Limited Vs. Kashmiri Lal2007 ACJ 688, this compensation shall be recovered by attaching the bank account of R-3 with a cost of Rs.5,000/.
97. R-3 shall inform the petitioners and their counsels through registered posts that the cheques/DDs of the awarded amount is being deposited so as to facilitate them to collect their cheques/DDs.
98. The copy of this award be given to the parties free of cost. Ahlmad is directed to send the copy of the award to Ld. Metropolitan Magistrate concerned and Delhi Legal Services Authority in view of Judgment titled as Rajesh Tyagi Vs. Jaibir Singh & Ors. passed in FAO no.842/2003 dated 12.12.2014.
99. Further Nazir is directed to maintain the record in Form XVIII as per the directions given by the Hon'ble Delhi High Court in the above case on 08.01.2021.
100. The particulars of Form-V of the Modified Claims Tribunal Agreed Procedure, in terms of directions given by the Hon'ble Delhi High Court in the above case on 15.12.2017, are as under:-
1 Date of the accident 02.11.2015 2 Date of intimation of the accident by Not given the Investigation Officer to the Claims Tribunal.
3 Date of intimation of the accident by the Investigating Officer to the Insurance Not given company.
4 Date of filing of Report under Section Not given 173 Cr.PC before the Metropolitan Magistrate.
5 Date of filing of Details Accident Report (DAR) by the Investigating Officer before 06.01.2016 Claims Tribunal.
6 Date of service of DAR on the 06.01.2016 Insurance Company.
MACP No. 85/16, MACP No. 84/16 & DAR No. 152/16 Page no.34 of 44 7 Date of service of DAR on the 06.01.2016 claimant(s).
8 Whether DARwas complete Yes in all respects?
9 If not, state deficiencies in the DAR No 10 Whether the police has verified Yes the documents file with DAR?
11 Whether there was any delay or deficiency on the part of the Investigating DARs have been filed Officer? If so, whether any after around two months action/direction warranted? of accident 12 Date of appointment of the Designated Not given Officer by the Insurance Company.
13 Name, address and contact number of the Designated Officer of the Insurance Not given Company.
14 Whether the Designated Officer of the Insurance Company submitted his report No within 30 days of the DAR?
15 Whether the Insurance Company admitted the liability? If so, whether the Designated Officer of the Insurance Yes, Legal offers in all three Company fairly computed the cases have been filed. compensation in accordance with law.
16 Whether there was any delay or
deficiencies on the part of the
Designated Officer of the Insurance No
Company? If so, whether any
action/direction warranted?
17 Date of response of the claimant(s) of Legal offers filed, but not
the offer of the Insurance Company. acceptable to the
petitioners.
18 Date of the award 18.08.2021
19 Whether the award was passed with
No
the consent of the parties?
20 Whether the claimant(s) were directed to
open savings bank account(s) near their Yes
place of residence?
21 Date of order by which claimant(s) were
directed to open savings bank account(s) near his place of residence and produce PAN Card and Adhaar Card and the 07.05.2018 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).
MACP No. 85/16, MACP No. 84/16 & DAR No. 152/16 Page no.35 of 44 22 Date on which the claimant(s) produced the passbook of their savings bank account near the place of their 10.01.2020 residence along with the endorsement, PAN Card and Adhaar Card?
23 Permanent Residential Address of the All petitioners of MACP No.
Claimant(s) 85/16 are residents of
186/22, Sadar Bazar, Delhi
Cantt., New Delhi-110010.
All petitioners of MACP No.
84/16 are residents of
1/186/24 Quarters, Sadar
Bazar, Delhi Cantt., New
Delhi and also at T-513,
Mangolpuri, Delhi.
Petitioner of DAR No.
152/16 are resident
1/186/22, 24 Quarter, Sadar
Bazar, Delhi Cantt., Delhi-
110010.
24 Details of savings bank account (s) of In MACP No. 85/16
the claimant(s) and the address of the
bank with IFSC Code.
P-1 = A/c No. 6383101000
454, being maintained with
Canara Bank, Delhi Cantt.,
New Delhi, having IFSC
Code CNRB0006383.
P-2 = A/c No. 6383101000
450, being maintained with
Canara Bank, Delhi Cantt.,
New Delhi, having IFSC
Code CNRB0006383.
P-3 = A/c No. 6383101000
452, being maintained with
Canara Bank, Delhi Cantt.,
New Delhi, having IFSC
Code CNRB0006383.
P-4 = A/c No. 6383101000
453, being maintained with
Canara Bank, Delhi Cantt.,
New Delhi, having IFSC
Code CNRB0006383.
P-5 = A/c No. 6383101000
MACP No. 85/16, MACP No. 84/16 & DAR No. 152/16 Page no.36 of 44
449, being maintained with
Canara Bank, Delhi Cantt.,
New Delhi, having IFSC
Code CNRB0006383.
In MACP No. 84/16
P-1 = A/c No. 6383101000
451, being maintained with
Canara Bank, Delhi Cantt.,
New Delhi, having IFSC
Code CNRB0006383.
P-2 = A/c No. 6383101000
448, being maintained with
Canara Bank, Delhi Cantt.,
New Delhi, having IFSC
Code CNRB0006383.
P-3=A/c No. 6383120000014,
being maintained with Canara
Bank, Delhi Cantt., New
Delhi, having IFSC Code
CNRB0006383.
P-4 = A/c No.
6383120000015, being
maintained with Canara
Bank, Delhi Cantt., New
Delhi, having IFSC Code
CNRB0006383.
In DAR No. 152/16
Petitioner having A/c No.
6383101000452, being
maintained with Canara
Bank, Delhi Cantt., New
Delhi, having IFSC Code
CNRB0006383.
25 Whether the claimant(s) savings
Yes
bank account(s) is near his place of
residence?
26 Whether the claimant(s) were examined
at the time of passing of the award to Yes
ascertain his/their financial condition?
MACP No. 85/16, MACP No. 84/16 & DAR No. 152/16 Page no.37 of 44
101. Files be consigned to Records after necessary formalities. Separate files be prepared for compliance report and be put up on 19.11.2021.
Announced in the open court. (Harjyot Singh Bhalla) on 18.08.2021 PO/MACT, New Delhi
Encl: The summary of computation in the prescribed format MACP No. 85/16, MACP No. 84/16 & DAR No. 152/16 Page no.38 of 44 SUMMARY OF COMPUTATION OF AWARD AMOUNT IN FORM XV in MACP No. 85/16
1. Date of accident : 02.11.2015
2. Name of the deceased : Usha
3. Age of the deceased : 34 years
4. Occupation of the deceased : House wife.
5. Income of the deceased : Rs. 10,140/- per month
6. Name, age and relationship of legal representative of deceased:-
Srl. No. Name Age Relation
(i) Anil Kumar 43 years Husband
(ii) Sunil Kumar 24 years Son
(iii) Rajiv 22 years Son
(iv) Rajni 20 years Daughter
(v) Barkha 18 years Daughter
Computation of Compensation
Sr. Heads Amount Awarded
No.
7 Income of the deceased (A) Rs.10,140/-
8 Add-Future Prospects (B) Rs.4056/-
9 Less-Personal expenses of Rs.3,549/-
the deceased (C)
10 Monthly loss of Rs.10,647/-
dependency
[(A+B) - C = D]
11 Annual loss of dependency Rs.1,27,764/-
(D x 12)
12 Multiplier (E) 16
13 Total loss of dependency Rs.20,44,224/-
(D x 12 x E = F)
14 Medical Expenses (G) Nil
15 Compensation for loss of Nil
love and affection (H)
16 Compensation for loss of Rs.2,20,000.00
consortium (I)
17 Compensation for loss of Rs.16,500.00
estate (J)
18 Compensation towards Rs.16,500.00
funeral expenses (K)
19 TOTAL COMPENSATION Rs.19,52,640/- (rounded
(F + G + H + I + J+K =L) off) (Rs. 22,97,224/- - Rs.
3,44,583.6) (After
MACP No. 85/16, MACP No. 84/16 & DAR No. 152/16 Page no.39 of 44
deducting 15% towards
contributory negligence)
20 RATE OF INTEREST 6% pa from date of filing of
AWARDED DAR till deposit in 30 days
and 9% after 90 days.
21 Interest amount up to the date Rs.6,58,333.91
of award (M)
22 Total amount including interest Rs. 26,10,973.91 (rounded (L+M) off to Rs.26,11,000 /-) 23 Award amount released P-1 = 25% of his share.
P-2= 25% of his share.
P-3 = 25% of his share P-4 = 25% of her share P-5 = 25% of her share 24 Award amount kept in FDRs/ P-1 = 75% of his share.
MACAD P-2= 75% of his share.
P-3 = 75% of his share
P-4 = 75% of her share
P-5 = 75% of her share
25 Mode of disbursement of the Through bank award amount to claimant(s) 26 Next date for compliance of 19.11.2021 the award (Harjyot Singh Bhalla) PO/MACT, New Delhi 18.08.2021 MACP No. 85/16, MACP No. 84/16 & DAR No. 152/16 Page no.40 of 44 SUMMARY OF COMPUTATION OF AWARD AMOUNT IN FORM XV in MACP No. 84/16
1. Date of accident : 02.11.2015
2. Name of the deceased : Aniket @ Anil
3. Age of the deceased : 25 years
4. Occupation of the deceased : Minimum wage for unskilled worker
5. Income of the deceased : Rs. 9,178/- per month
6. Name, age and relationship of legal representative of deceased:-
Srl. No. Name Age Relation
(i) Nitu 37 years Husband
(ii) Jatin 20 years Son
(iii) Sanjana 13 years Son
(iv) Sandeep 15 years Daughter
Computation of Compensation
Sr. Heads Amount Awarded
No.
7 Income of the deceased (A) Rs.9178/-
8 Add-Future Prospects (B) Rs.3,671.2/-
9 Less-Personal expenses of Rs.6,424.6
the deceased (C)
10 Monthly loss of Nil
dependency
[(A+B) - C = D]
11 Annual loss of dependency Nil
(D x 12)
12 Multiplier (E) 18
13 Total loss of dependency Nil
(D x 12 x E = F)
14 Medical Expenses (G) Nil
15 Compensation for loss of Nil
love and affection (H)
16 Compensation for loss of Rs.1,76,000/-
consortium (I)
17 Compensation for loss of Rs.16,500.00
estate (J)
18 Compensation towards Rs.16,500.00
funeral expenses (K)
19 TOTAL COMPENSATION Rs.2,09,000/-
(F + G + H + I + J+K =L)
20 RATE OF INTEREST 6% pa from date of filing of
AWARDED DAR till deposit in 30 days
MACP No. 85/16, MACP No. 84/16 & DAR No. 152/16 Page no.41 of 44
and 9% after 90 days.
21 Interest amount up to the date Rs.70,464.49
of award (M)
22 Total amount including interest Rs. 2,79,464.49 (rounded (L+M) off to Rs.2,80,000/-) 23 Award amount released P-1 = Rs. 77,000/- along with interest.
P-2= Rs. 44,000/- along
with interest.
P-3 = Nil
P-4 = Nil
24 Award amount kept in FDRs/ P-1 = Nil
MACAD P-2= Nil
P-3 = Entire share
P-4 = Entire share
25 Mode of disbursement of the Through bank award amount to claimant(s) 26 Next date for compliance of 19.11.2021 the award (Harjyot Singh Bhalla) PO/MACT, New Delhi 18.08.2021 MACP No. 85/16, MACP No. 84/16 & DAR No. 152/16 Page no.42 of 44 SUMMARY OF THE COMPUTATION OF AWARD IN INJURY CASES IN FORM-
XVI in DAR No. 152/161. Date of accident : 02.11.2015
2. Name of the injured : Sh. Rajiv @ Rajeev
3. Age of the injured : 26 years, 9 months and around 23 days
4. Occupation of the injured : Unskilled worker for minimum wages
5. Income of the injured : Rs. 9,178/-
6. Nature of injury : Grievous
7. Medical treatment taken by the injured : JPNA Trauma Centre, Delhi.
8. Period of hospitalization : 02.11.2015 to 11.11.2015
9. Whether any permanent disability? : Yes, 9% permanent physical disability, but taken as 5% functional disability.
10. Computation of Compensation Sr.No. Heads Amount awarded
11. Pecuniary Loss
(i) Expenditure on treatment Rs.5,242/-
(ii) Expenditure on conveyance Rs.10,000/-
(iii) Expenditure on special diet Rs. 9,000/-
(iv) Cost of nursing/attendant Rs. 9,000/-
(v) Loss of earning capacity Nil
(vi) Loss of Income Rs.27,534/-
(vii) Any other loss which may require Nil
any special treatment or aid to the
injured for the rest of his life
12. Non-pecuniary Loss:
(i) Compensation for mental and Rs.20,000/-
physical shock
(ii) Pain and suffering Rs.20,000/-
(iii) Loss of amenities of life Rs.20,000/-
(iv) Disfiguration Nil-
(v) Loss of marriage prospects Nil
(vi) Loss of earning, inconvenience, Nil
hardships,disappointment,frustration, mental stress, dejectment and unhappiness in future life etc.
13. Disability resulting in loss of earning capacity
(i) Percentage of disability assessed Nil and nature of disability as permanent or temporary
(ii) Loss of amenities or loss of Nil expectation of life span on account of disability.
MACP No. 85/16, MACP No. 84/16 & DAR No. 152/16 Page no.43 of 44
(iii) Percentage of loss of earning Nil
relation to disability
(iv) Loss of future income 1,31,062/-
14. Total Compensation Rs.1,88,879/- (rounded off)
(Rs. 2,51,838/- -
Rs.62,959.5)
(after deducting 25%
towards contributory
negligence)
15. Interest Awarded 6% pa from date of filing of
DAR till deposit in 30 days
and 9% after 90 days.
16. Interest amount up to the date of Rs. 63,680.68
award
17. Total amount including interest Rs.2,52,559.68/- (rounded
off to Rs. 2,53,000/-)
18. Award amount released 30% of the awarded amount
19. Award amount kept in the FDRs/ 70% of the awarded amount Motor Accident Claims Annuity Deposit (MACAD)
20. Mode of disbursement of the award Through bank amount to the claimant (s)
21. Next date for compliance of the 19.11.2021 award (Harjyot Singh Bhalla) PO/MACT, New Delhi 18.08.2021 MACP No. 85/16, MACP No. 84/16 & DAR No. 152/16 Page no.44 of 44