Delhi District Court
Devaki Devi vs Anil Kumar Chaudhary (Driver) on 24 May, 2023
IN THE COURT OF HARVINDER SINGH, PRESIDING
OFFICER : MOTOR ACCIDENT CLAIMS TRIBUNAL-01,
(WEST), TIS HAZARI COURTS, DELHI
AWARD/JUDGMENT
MACT Case No. 377/2020
CNR No.-DLWT01-006681-2020
1. Devaki Devi
W/o Sh. Mahesh Kumar
2. Khusbu D/o Late Mahesh Kumar (Minor)
3. Kanahiya S/o Late Mahesh Kumar (Minor)
4. Lakchmi D/o Late Mahesh Kumar (Minor)
5. Khushi D/o Late Mahesh Kumar (Minor)
All R/o Village-Susayat Kalan
Mahamayanagar, Hathras
U. P.-204216
..............Applicant/Petitioner
Versus
1. Anil Kumar Chaudhary (Driver)
S/o Sh. Prakash Chaudhary
R/o Karmi Gosai (Kandhusra)
PO-Unji, PS-Dubauliya
District-Basti, UP
2. M/s Triveni Road Carriers Pvt. Ltd.
Office at-8, GF, Transport Centre
Rohtak Road, Delhi-110035
Also at-Near HPC Petrol Pump
Sikandra Rao Road,
Hathras Junction, Hathras
3. United India Insurance Company Ltd.
Office at-9, Transport Centre,
Devki Devi & ors. vs. Anil Kumar Chaudhary & ors.
[MACT No.377/2020] Page No.1 of 27
Digitally signed by
HARVINDER HARVINDER SINGH
SINGH Date: 2023.05.24
16:37:31 +0530
Punjabi Bagh, New Delhi-110035
Date of Institution : 24.12.2020
Date of reserving order/judgment : 22.05.2023
Date of pronouncement : 24.05.2023
FORM-XVII
COMPLIANCE OF THE PROVISIONS OF THE
MODIFIED CLAIMS TRIBUNAL AGREED PROCEDURE
1. Date of the accident 21.08.2019
2. Date of filing of Form-I - Form-1 (FAR) was not filed
First Accident Report (FAR) in the present matter
3. Date of delivery of Form-II Form-II was not filed in the
to the victim(s) present matter
4. Date of receipt of Form-III Form-III was not filed in the
from the Driver present matter
5. Date of receipt of Form-IV Form-IV was not filed in the
from the Owner present matter
6. Date of filing of the Form-V- Form-V (IAR) was not filed
Interim Accident Report in the present matter
(IAR)
7. Date of receipt of Form-VIA Form VIA & VIB were not
and Form-VIB from the filed in the present matter
Victim(s)
8. Date of filing of Form-VII - DAR not filed in the present
Detailed Accident Report case as incident took place
(DAR) at Sasni Kotwali District
Hathras, Uttar Pradesh
9. Whether there was any delay N.A.
or deficiency on the part of
the Investigating Officer? If
so, whether any action/
direction warranted?
10. Date of appointment of the 05.03.2021
Designated Officer by the
Insurance Company
11. Whether the Designated Yes
Officer of the Insurance
Devki Devi & ors. vs. Anil Kumar Chaudhary & ors.
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Digitally signed
HARVINDER by HARVINDER
SINGH
SINGH Date: 2023.05.24
16:37:36 +0530
Company submitted his report
within 30 days of the DAR?
12. Whether there was any delay No
or deficiency on the part of
the Designated Officer of the
Insurance Company? If so,
whether any action/direction
warranted?
13. Date of response of the Legal offer was not given in
claimant(s) to the offer of the the present case
Insurance Company
14. Date of the award 24.05.2023
15. Whether the claimant(s) Yes
was/were directed to open
savings bank account(s) near
their place of residence?
16. Date of order by which 12.12.2022
claimant(s) was/were directed
to open savings bank
account(s) near his place of
residence and produce PAN
Card and Aadhaar 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.
17. Date on which the claimant(s) 18.05.2023
produced the passbook of
their savings bank account
near the place of their
residence along-with the
endorsement, PAN Card and
Adhaar Card?
18. Permanent Residential R/o Village-Susayat Kalan
Address of the claimant(s). Mahamayanagar, Hathras,U.
P-204216
19. Whether the claimant(s) Yes
savings bank account(s) is/are
Devki Devi & ors. vs. Anil Kumar Chaudhary & ors.
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Digitally signed
HARVINDER by HARVINDER
SINGH
SINGH Date: 2023.05.24
16:37:42 +0530
near his/her/their place of
residence?
20. Whether the claimant(s) Yes
was/were examined at the
time of passing of the award
to ascertain his/her/their
financial condition?
FACTUAL POSITION & PLEADINGS
1. Vide this judgment/award, this Tribunal shall decide
claim of compensation on account of death of Sh. Mahesh
Chandra in a road vehicular accident which took place on
21.08.2019 at about 11:40 AM at near Samamai Petrol Pump,
Police Station Sasni Kotwali, District Hathras, UP.
CASE OF PETITIONER SIDE
2. Succinctly, the case put forward by petition is that
on 21.08.2019, deceased Mahesh Chandra along with Yogesh
Kumar were coming back from Hathras City to village-
Susayatkalan, Hathras on motorcycle bearing registration No.
UP86AA3814. It was driven by deceased Yogesh Kumar and
deceased Mahesh was pillion rider. At about 11:40AM, when
they reached near Samamai Petrol Pump, Police Station-Sasni
Kotwali, the offending Truck bearing registration No.
MP06E5073 came in rash and negligent manner and hit the
motorcycle of the deceased. Due to same, both riders of the
motorcycle died at the spot of incident. FIR No. 284/2019 was
registered at PS Sasni Kotwali, District Hathras, Uttar Pradesh
against the respondent no.1. The incident happened solely due to
rash and negligent driving of respondent no.1. It is averred that deceased was working as Mason and was earning around Rs.18,000/- per month at the time of incident. All the petitioners Devki Devi & ors. vs. Anil Kumar Chaudhary & ors.
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SINGH Date: 2023.05.24
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were dependent upon deceased. The petitioners have claimed a sum of Rs.49,09,000/- as compensation from the respondents. MISCELLANEOUS PROCEEDINGS
3. Notice of the application/petition was issued to the respondents, they appeared and filed their WS/reply to the present petition/application.
RESPONSE OF RESPONDENT NO.01 & 024. In gist, the response of the respondents no.01 & 02 as discernible from their reply/written statement is that the respondent no.1 was not driving the vehicle in question in rash and negligent manner. Incident in question took place due to negligence of the driver of the motorcycle. The vehicle in question was duly insured with respondent no.3 at the time of incident. The respondents no.1 & 2 denied all other averments of the petition and prayed for dismissal of the petition. RESPONSE OF RESPONDENT NO.03
5. In gist, the response of the respondent no.03 as discernible from its reply/written statement is that the driver of offending vehicle was not having any valid driving license to drive the vehicle at the time of incident. The offending vehicle had no permit and fitness certificate at the time of incident. The offending vehicle bearing No. MP06E5073 was insured with it vide policy no. 2227013118 P 109156189 for period 20.10.2018 to 19.10.2019 covering the date of incident. It denied all other averments of petition and prayed for dismissal of the petition. ISSUES 6.1 After completion of pleadings, the scholarly predecessor of this tribunal framed following issues on Devki Devi & ors. vs. Anil Kumar Chaudhary & ors.
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1. Whether the deceased Sh. Mahesh Chandra, suffered fatal injuries in the accident that took place on 21.08.2019 at about 11:40 AM due to rash and negligent driving of vehicle bearing registration number MP06E5073 by respondent no.01 Sh. Anil Kumar Chaudhary, being owned by M/s Triveni Road Carriers Pvt. Ltd. i.e. the respondent no.02 and being insured with respondent no.03 i.e. United India Ins. Co. Ltd? OPP
2. Whether the applicant(s) is/are entitled to compensation, if yes, of what amount and from whom? OPP
3. Relief.
6.2 Thereafter, matter was fixed for evidence of petitioner side.
PETITIONER SIDE EVIDENCE 7.1 The petitioner(s)/claimant(s) examined petitioner No.1 as PW-1 to establish their claim. She tendered her evidence by way of affidavit Ex.PW1/A reiterating and supporting the contents of their application/petition. She relied upon copy of FIR Ex.PW1/1, copy of charge-sheet Ex.PW1/2, copy of post mortem Ex.PW1/3, copy of death certificate Mark A, copy of Aadhar Card of petitioners No.1 to 5 Ex.PW1/5 to Ex.PW1/9, copy of DL of respondent no.1 Mark B, copy of RC Mark C, copy of Insurance policy Mark D, copy of goods permit Mark E and copy of fitness certificate Mark F in her evidence. PW1 was cross-examined at length by respondent side which is not reproduced herein for sake of brevity and was discharged. 7.2 The petitioner side has also examined eye witness Sh. Durga Dass as PW-2 who in gist deposed that on 21.08.2019 at about 11:40 AM, he along with Sh. Deep Chand were going to Devki Devi & ors. vs. Anil Kumar Chaudhary & ors.
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Sasni Town to purchase some goods on the motorcycle. He further deposed that offending vehicle i.e. Truck bearing registration No. MP06E5073 was driven by its driver in rash and negligent manner at a very high speed and it hit the motorcycle bearing Mo. UP86AA3814. Due to same, both the occupants of said motorcycle sustained grievous injuries. He relied upon the copy of his Aadhar card Ex. PW2/1 in his evidence. PW1 was cross-examined at length by respondent no.3 Insurance company which is not reproduced herein for sake of brevity, was not cross- examined by respondent no.1 & 2 and was discharged. 7.3 Thereafter, petitioner evidence was closed on 10.06.2022 and matter was fixed for respondent side evidence. RESPONDENT SIDE EVIDENCE 8.1 The respondent no.01 examined himself as RW-1 who in gist has deposed that he was driver of vehicle bearing registration No. MP06E5073 (Gas Truck of Bharat Petroleum) in May, 2019. He took vehicle bearing registration No. MP06E5073 from Gas Plant Rati ka Nagla, Hathras UP to Aligarh District. After unloading the filled gas cylinders and loading empty gas cylinders, he started his journey back to Aligarh District. He had reached near Sasni at about 11:00 AM. He was driving his vehicle at about 25-30 km/hrs. The road was single road and one truck was coming from front side. One bike which was coming behind said truck and on which two persons were riding without helmet tried to overtake it. They failed to overtake it and due to bike being in speed, the rider of the bike took his bike to the side of the vehicle driven by him. He was driving his vehicle on his own side and lane at the time of incident. The rider of bike Devki Devi & ors. vs. Anil Kumar Chaudhary & ors.
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collided with left front side of his vehicle and died at the spot. The pillion rider fell on the road, rolled upon the road and came under the rear wheel of his truck. He deposed that incident has not happened due to his negligence and instead it happened due to rash driving of the rider of the bike. RW1 was cross-examined by petitioner side, was cross-examined by Ld. Counsel for respondent No.3 Insurance Company and was discharged. 8.2 The respondent no.03/Insurance Company examined Sh. Raju as R3W1 who tendered his evidence by way of affidavit Ex.R3W1/A wherein in gist, he has deposed that respondent No.1 was not having any valid driving license to drive the Hazardous goods vehicle. He relied upon copy of insurance policy Ex.R3W1/1, Investigation Report of Surveyor Ex. R3W1/2 and driving license verification report of respondent no.1 Ex.R3W1/3 in his evidence. R3W1 was not cross-examined by petitioner side, was cross-examined by respondent no.1 & 2 and was discharged.
8.3 Evidence of respondents was closed vide order dated 12.12.2022 and matter was then fixed for final arguments. FINAL ARGUMENTS/SUBMISSIONS/CONTENTIONS 9.1 Submissions/contentions of the petitioner side are that the petitioner side has positively proved that the incident took place due to rash and negligent driving of the respondent no.01. The deceased was 34 years of age, was working as Mason and was earning around Rs.18,000/- per month. Award may be passed by this Tribunal as per entitlement/claim of applicant(s)/claimant(s)/LR(s).
9.2 Submissions/contentions of the respondent no.01 & Devki Devi & ors. vs. Anil Kumar Chaudhary & ors.
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02 are that the petitioner side has failed to prove that incident in question took place due to rash and negligent driving of respondent no.1. Incident in question took place due to sole negligence of driver of the motorcycle. With these contentions, respondent no.03 has prayed for dismissal of the present claim petition.
9.3 Submissions/contentions of the respondent no.03 are that the petitioner side has failed to prove that incident in question took place due to rash and negligent driving of respondent no.1. Petitioner side has failed to prove the job and income of the deceased. Respondent no.01 was not holding a valid driving license to drive hazardous goods vehicle. Respondent no.3 be provided recovery rights against respondents no.1 & 2 in case award is passed by this Tribunal against the respondents. With these main submissions/contentions, the respondent no.03 has prayed for dismissal of the petition. ANALYSIS/FINDINGS ON ISSUES 10.1 (1) Whether the deceased Sh. Mahesh Chandra, suffered fatal injuries in the accident that took place on 21.08.2019 at about 11:40 AM due to rash and negligent driving of vehicle bearing registration number MP06E5073 by respondent no.01 Sh. Anil Kumar Chaudhary, being owned by M/s Triveni Road Carriers Pvt. Ltd. i.e. the respondent no.02 and being insured with respondent no.03 i.e. United India Ins. Co. Ltd? OPP 10.2 Before adverting to the facts of the present petition for deciding the above issue, at the very outset, it would be apposite to note here that the procedure followed by an accident claim tribunal is similar to what is followed by a civil court. In civil matters the facts are required to be established by way of Devki Devi & ors. vs. Anil Kumar Chaudhary & ors.
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preponderance of probabilities only and not by strict rules of evidence or beyond reasonable doubt as is required in a criminal prosecution. The burden of proof in a civil case is not as heavy as it is in a criminal case and in a claim petition under the M. V. Act, this burden is even lesser than a civil case. Reference in this regard can be made to the prepositions of law laid down by the Hon'ble Supreme Court of India in case of "Bimla Devi and others Vs. Himachal Road Transport Corporation and Ors." reported in (2009) 13 SC 530, which were reiterated in the subsequent judgments in the case of "Parmeshwari Vs. Amir Chand and Ors." 2011 (1) SCR 1096 (Civil Appeal No.1082 of 2011) and "Mangla Ram Vs. Oriental Insurance Co. Ltd. & Ors.", 2018 Law Suit (SC) 303 etc. 10.3 Now keeping in mind the aforesaid legal principle/preposition for decision of the present issue, this Tribunal has gone through the testimony of the witnesses and entire material available on record. This Tribunal has also given thoughtful consideration to arguments addressed by Ld. Counsels for the parties.
10.4 The petitioner/applicant side has examined one eye- witness Sh. Durga Dass as PW2 who in gist has deposed that on 21.08.2019 at about 11:40 AM, he was going to Sasni to purchase some goods on his bike with one Sh. Deep Chand. At the same time, deceased Yogesh Kumar was riding a bike bearing registration No. UP86AA3814 with Mahesh Chandra being pillion rider on it. He saw the offending truck bearing registration NO. MP06E5073 being driven in rash and negligent and in very high speed had hit the bike of the deceased Yogesh Devki Devi & ors. vs. Anil Kumar Chaudhary & ors.
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Kumar and Mahesh Chandra. They both sustained grievous injuries and diet on the spot. He promptly denied the suggestion in his cross-examination that deceased persons have not died due to rash and negligent driving of truck driver. He also denied the suggestion in his cross-examination that incident happened due to the fault of rider of the motorcycle. So nothing substantial supporting the case of the respondents as to manner of incident or negligence came on record in lengthy and skillful cross- examination done of said witness by respondents. 10.5 The respondent no.01/driver has examined himself as RW1. RW1 in his cross-examination has admitted that he has been arrayed as accused in FIR NO. 0284/2019 PS Sasni Kotwali, District Hathras, UP qua said accident. He has not filed any complaint against IO or any other police officials for false implication in the FIR in question. The fact that respondent no.1 has been arrayed as accused in said FIR also supports and affirms the case of petitioner side.
10.6 In totality of circumstances, this Tribunal is of the opinion that the claimant side has been able to bring on record such facts which proves almost at the scales of preponderance of probabilities that the incident in question took place due to rash and negligent driving of offending vehicle bearing registration number MP06E5073 by its driver/respondent no.01 on the date and time of the incident. Accordingly, issue no.01 is decided in favour of the petitioner(s)/claimant(s)/applicant(s) and against the respondents.
Issue No.(ii) : - Whether the applicants are entitled to compensation, if yes, of what amount and from whom? OPP.
Devki Devi & ors. vs. Anil Kumar Chaudhary & ors.
[MACT No.377/2020] Page No.11 of 27 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2023.05.24 16:38:31 +0530 11.1 The petitioner(s) is/are certainly entitled for compensation in view of decision of above issue. Before
proceeding further to decide the present issue, it would be apposite to encapsulate the law laid down by Hon'ble Supreme Court of India in its guiding lamp post judgments for ascertaining just compensation in road vehicular death cases. 11.2 Hon'ble Supreme Court of India in matter of "Sarla Verma & Ors. Vs. Delhi Transport Corporation & Ors." (2003) 6 SCC 121 has held : -
QUA BASIC PRINCIPLES "9. Basically only three facts need to be established by the claimants for assessing compensation in the case of death :-
(a) age of the deceased; (b) income of the deceased; and the
(c) the number of dependents. The issues to be determined by the Tribunal to arrive at the loss of dependency are (i) additions/deductions to be made for arriving at the income; (ii) the deduction to be made towards the personal living expenses of the deceased; and (iii) the multiplier to be applied with reference of the age of the deceased. If these determinants are standardized, there will be uniformity and consistency in the decisions.
There will lesser need for detailed evidence. It will also be easier for the insurance companies to settle accident claims without delay. To have uniformity and consistency, Tribunals should determine compensation in cases of death, by the following well settled steps : -
Step 1 (Ascertaining the multiplicand) The income of the deceased per annum should be determined. Out of the said income a deduction should be made in regard to the amount which the deceased would have spent on himself by way of personal and living expenses. The balance, which is considered to be the contribution to the dependent family, constitutes the multiplicand.
Step 2 (Ascertaining the multiplier) Having regard to the age of the deceased and period of active career, the appropriate multiplier should be selected. This does not mean ascertaining the number of years he would have lived or worked but for the accident. Having regard to several imponderables in life and economic factors, a table of multipliers with reference to the age has been identified by this Court. The multiplier should be chosen from the said table with reference to the age of the deceased.
Step 3 (Actual calculation) The annual contribution to the family (multiplicand) when multiplied by such multiplier gives the `loss of dependency' to the family. Thereafter, a conventional amount in the range of Rs. 5,000/- to Rs.10,000/- may be added as loss of estate. Where the deceased is survived by his widow, another conventional amount in the range of 5,000/- to 10,000/-
Devki Devi & ors. vs. Anil Kumar Chaudhary & ors.
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should be added under the head of loss of consortium. But no amount is to be awarded under the head of pain, suffering or hardship caused to the legal heirs of the deceased.
The funeral expenses, cost of transportation of the body (if incurred) and cost of any medical treatment of the deceased before death (if incurred) should also added."
QUA ADDITIONS "11. ..................... In view of imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. [Where the annual income is in the taxable range, the words `actual salary' should be read as `actual salary less tax']. The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of deceased is more than 50 years.
Though the evidence may indicate a different percentage of increase, it is necessary to standardize the addition to avoid different yardsticks being applied or different methods of calculations being adopted. Where the deceased was self-employed or was on a fixed salary (without provision for annual increments etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances."
QUA DEDUCTIONS "14. Having considered several subsequent decisions of this court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependant family members is 4 to 6, and one-fifth (1/5th) where the number of dependant family members exceed six.
15. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent/s and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependent and the mother alone will be considered as a dependent. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependents, because they will either be independent and earning, or married, or be dependent on the father. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependent, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where family of the bachelor is large and dependent on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third."
Devki Devi & ors. vs. Anil Kumar Chaudhary & ors.
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"21. We therefore hold that the multiplier to be used should be as mentioned in column (4) of the Table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years."
11.3 Hon'ble Supreme Court of India in its constitution bench decision in matter of "National Insurance Company Limited Vs. Pranay Sethi & Ors." (2017) 16 SCC 680 held as under : -
"58. To lay down as a thumb rule that there will be no addition after 50 years will be an unacceptable concept. We are disposed to think, there should be an addition of 15% if the deceased is between the age of 50 to 60 years and there should be no addition thereafter. Similarly, in case of self- employed or person on fixed salary, the addition should be 10% between the age of 50 to 60 years. The aforesaid yardstick has been fixed so that there can be consistency in the approach by the tribunals and the Courts.
59. 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 Devki Devi & ors. vs. Anil Kumar Chaudhary & ors.
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(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.
(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.
11.4 In view of the above law laid down by Hon'ble Supreme Court of India, this Tribunal needs to ascertain the age of deceased/victim, ascertain the appropriate multiplier, income of the deceased at the time of incident, the educational qualification of deceased, the number of dependents whether deceased was married or unmarried, whether deceased was having permanent employment or private job etc. etc. to workout just compensation in this case. Award also needs to be passed qua non-pecuniary heads as envisaged and in terms of above judgments. Hence, this Tribunal now proceeds further to decide the compensation/award under different heads applicable to the present matter in light of above prepositions. DETERMINATION OF AGE & MULTIPLIER 11.5 The petitioner(s), in the claim petition has/have claimed that the deceased was aged about 34 years on the date of accident. The date of incident is 21.08.2019. The date of birth of deceased as per his Aadhar Card available on record is 01.01.1985. Hence, deceased was around 34 years of age at the time of incident. Accordingly, the age of deceased is taken as 34 years on the date of accident. Since, he falls in age bracket of 31- Devki Devi & ors. vs. Anil Kumar Chaudhary & ors.
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35, so, the multiplier applicable in this case would be 16. DETERMINATION OF EDUCATIONAL QUALIFICATION 11.6 No documentary proof has been filed by the petitioner side to prove the educational qualification of deceased. Hence, he shall be considered uneducated for purpose of present decision.
DETERMINATION OF MONTHLY INCOME 11.7 It is claimed that deceased was working as Mason and was earning around Rs.18,000/- per month at the time of incident but no documentary proof has been filed by the petitioner side to show that he was working as Mason and was earning Rs.18,000/- per month. Hence, the petitioner side has miserably failed to prove the employment and earning of the deceased. Since, there is no reliable proof filed with respect to the income of deceased, therefore, the income of deceased has to be assessed on the basis of chart available in Minimum Wages Act of an unskilled person of State of Uttar Pradesh. The minimum wages for an unskilled person of State of Uttar Pradesh on the date of accident i.e. 21.08.2019 were Rs.8013/-
(after rounding off Rs.8012.73/-) DETERMINATION OF FUTURE PROSPECTS APPLICABLE 11.8 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 has to be given in accordance with guidelines issued by Hon'ble Devki Devi & ors. vs. Anil Kumar Chaudhary & ors.
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Supreme Court of India as applicable to self employed or privately employed persons.
11.9 The deceased was aged less than 40 years at the time of incident and had no permanent job, so the future prospects/benefits applicable to the present case would be 40%. ASSESSMENT/DETERMINATION OF ENHANCED MONTHLY INCOME 11.10 As has already been held, income of deceased as Rs.8013/- per month would be applicable in this case and an addition of 40% needs to be made qua future prospects. Accordingly, the monthly income of the deceased needs to be taken as Rs.11,218/- (after rounding off Rs.11,218.2/-) (Rs.8013/- + Rs.3205.2/- which is 40% of Rs.8013/-).
DETERMINATION OF DEDUCTIONS 11.11 There is no dispute that the deceased was married, is survived by wife (petitioner no.01), minor daughters (petitioner no.02, 04 & 05) and minor son (petitioner no.03). Deduction towards personal and living expenses of a deceased needs to be taken 1/4th in this matter. Hence, 1/4th would be deducted towards personal and living expenses of the deceased. DETERMINATION OF MULTIPLICAND 11.12 The monthly income of the deceased after enhancement needs to be taken as Rs.11,218/-. A deduction of 1/4th needs to be made towards personal and living expenses of the deceased. So, in this matter, monthly loss of dependency would come out to be Rs.8414/- (after rounding off Rs.8413.5) (after deducting 1/4th of Rs.11,218/-). This product needs to be multiplied by 12 to workout multiplicand/annual loss of Devki Devi & ors. vs. Anil Kumar Chaudhary & ors.
[MACT No.377/2020] Page No.17 of 27 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2023.05.24 16:39:05 +0530 dependency. Hence, multiplicand for this matter would be Rs.1,00,968/- (Rs.8414/- x 12). AWARD TOWARDS LOSS OF DEPENDENCY 11.13 The total loss of dependency would come out to be
Rs.16,15,488/- (Rs.1,00,968 x 16), hence, so awarded. COMPENSATION QUA NON-PECUNIARY HEADS COMPENSATION QUA LOSS OF ESTATE 11.14 The loss of estate is awarded as Rs.16,500/- (15,000/- + 10% enhancement).
COMPENSATION QUA LOSS OF CONSORTIUM 11.15 Since, there are five claimants who are wife and four minor children of deceased entitled to award under this head, hence, an amount of Rs.2,20,000/- (Rs.40,000 x 5 + 10% enhancement) is awarded under this head.
COMPENSATION QUA FUNERAL EXPENSES 11.16 An amount of Rs.16,500/- (15,000/- + 10% enhancement) is awarded towards funeral expenses. TOTAL AWARD AMOUNT OF ALL HEADS 11.17 In view of above discussions and awards passed under different heads, this Tribunal hereby pass an award of sum of Rs.18,68,488/- (Rupees Eighteen Lakhs Sixty Eight Thousand Four Hundred and Eighty Eight Only) (Rs.16,15,488/- + Rs.16,500/- + Rs.2,20,000/- + Rs.16,500/-) in favour of petitioner(s) and against the respondents. R E L I EF / ISSUE NO.03
12. This Tribunal hereby pass an award of Rs.18,68,488/- (Rupees Eighteen Lakhs Sixty Eight Thousand Four Hundred and Eighty Eight Only) as compensation along-
Devki Devi & ors. vs. Anil Kumar Chaudhary & ors.
[MACT No.377/2020] Page No.18 of 27 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2023.05.24 16:39:11 +0530
with interest @ 7% per annum (including interim award, if any) from the date of filing the DAR/claim petition i.e. 24.12.2020 till the date of the payment of award amount, in favour of the petitioner(s) and against the respondents on account of their liability being joint and several.
APPORTIONMENT OF LIABILITY 13.1 It has been averred that the respondent No.1 was not holding any valid and effective driving license at the time of the accident. The insurance company has examined its Manager Sh. Raju as R3W1 in the present matter. He has filed copy of insurance policy Ex.R3W1/1, Investigation Report of Surveyor Ex. R3W1/2 and driving license verification report of respondent no.1 Ex.R3W1/3 on record. He has deposed that the respondent no.1 was driving the Truck carrying Gas cylinders at the time of the accident. He was not having any endorsement upon his DL authorizing him to drive a vehicle carrying hazardous or dangerous goods.
13.2. Hon'ble High Court of Madras in matter of Nagamani & Anr. vs. Singaravelu & Anr. cited as 2010 ACJ 1912 decided on 11.06.2009 has held:-
"16...Suffice it to point out for this court that the offending lorry driver Elayasamy was not in possession of a licence/endorsement to drive the hazardous goods vehicle and that he was only possessed of a licence to drive heavy goods vehicle w.e.f. 30.10.1991 and, therefore, there was a violation of policy condition and as such, the Tribunal was quite correct in exonerating the insurance company, respondent No.2 Devki Devi & ors. vs. Anil Kumar Chaudhary & ors.
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from its liability to pay and moreover, the appellants/petitioners have not proved that the driver Elayasamy had the valid licence in regard to the type of vehicle viz., hazardous goods vehicle involved in the accident and consequently, the appeal fails and the same is hereby dismissed".
13.3. The DL of respondent No.1 was for LMV, MCWG and Trans only. There is no endorsement on the DL of respondent No.1 that he was authorized to drive the vehicle carrying hazardous goods. So, the ratio of the abovestated authority is squarely applicable as there is a breach of the terms and conditions of the insurance policy. Accordingly, the insurance company is certainly entitled for the recovery rights against the respondents No.1 & 2 but only after deposition of payment of the award amount in the account of the petitioners. 13.4 As the offending vehicle was admittedly insured with the respondent no.03/Insurance company, respondent no.03/insurance company is hereby directed to deposit the award amount in favour of the petitioner(s) with State Bank of India, Tis Hazari Courts, Delhi in MACT Account of this Tribunal having Account No.40711767202, CIF No.90891362578, IFSC Code - SBIN0000726, Tis Hazari Courts, Delhi within a period of 45 days from the date of passing of this award together with the interest as stated herein above under intimation to this Tribunal and under intimation to the petitioner(s)/claimant(s)/applicant(s). In case of any delay, it shall be liable to pay interest at the rate of 9% per annum for the period of delay.
Devki Devi & ors. vs. Anil Kumar Chaudhary & ors.
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MODE OF DISBURSEMENT OF THE AWARD AMOUNT TO THE CLAIMANT(S) AS PER THE PROVISIONS OF THE 'MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE' (MCTAP).
14.1 The applicant(s)/petitioner(s) was/were examined under MCTAP on 18.05.2023 and his/her/their statement(s) considered.
14.2 Hon'ble High Court of Delhi in FAO No.842/2003 titled as "Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors." has formulated MACAD (Motor Accident Claims Annuity Deposit Scheme) vide its order dated 07.12.2018. The same has been made effective from 01.01.2019. Said order provides 21 banks including State Bank of India as one of the banks which have to adhere to MACAD. The State Bank of India, Tis Hazari Courts, Delhi is directed to disburse the amount in accordance with MACAD formulated by Hon'ble High Court of Delhi. 14.3 The Manager, State Bank of India, Tis Hazari Courts, Delhi is directed to release/disburse award amount in favour of MACT Account bearing No. 4597001700019265 with PNB Sasni District Hathras, UP of petitioner no.1, MACT Account bearing No. 4597001700020252 with PNB Sasni District Hathras, UP of petitioner no.2, MACT Account bearing No. 4597001700020243 with PNB Sasni District Hathras, UP of petitioner no.3, MACT Account bearing No. 4597000100158554 with PNB Sasni District Hathras, UP of petitioner no.4 and MACT Account bearing No. 4597000100158651 with PNB Sasni District Hathras, UP of petitioner no.5 as mentioned/directed hereinafter in tabulated Devki Devi & ors. vs. Anil Kumar Chaudhary & ors.
[MACT No.377/2020] Page No.21 of 27 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2023.05.24 16:39:28 +0530 form. 14.4 The compensation to the petitioners shall be
distributed/disbursed as follows : -
Sr. Name of Age/ Relation Award Amount of Amount kept Period of FDRs No. petitioner DOB with Amount award to be in FDRs with cumulative / injured/ released interest claimant deceased
1. Devaki 14.02.19 Wife Rs.7,68,488/- Rs.2,68,488/- Rs.5,00,000/- Rs.5,00,000/- + Devi 92 + 1/5th 1/5th interest Interest accumulated accumulated shall be kept in the form of equal monthly FDRs of Rs.10,000/- for the period of 50 months + months which comes out of division of interest accumulated by Rs.10,000/-.
The remainder, if any to be added in the last FDR. The amount of FDRs along-
with interest
after maturity
shall be released
to the
petitioner
/claimant on
monthly basis
as per above
previous orders.
2. Khusbu 28.01.20 Daughte Rs.2,75,000/- Nil Rs.2,75,000/- Rs.2,75,000/-
11 r + 1/5th along with 1/5th
interest interest
accumulated accumulated
shall be kept in
the form of one
FDRs till
attaining the age
of majority of
the
Devki Devi & ors. vs. Anil Kumar Chaudhary & ors.
[MACT No.377/2020] Page No.22 of 27 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2023.05.24 16:39:32 +0530 petitioner/claim ant 3. Kanahiya 08.10.20 Son Rs.2,75,000/- Nil Rs.2,75,000/- Rs.2,75,000/- 12 + 1/5th along with 1/5th interest interest accumulated accumulated shall be kept in the form of one FDRs till attaining the age of majority of the petitioner/claim ant 4. Lakchmi 23.07.20 Daughte Rs.2,75,000/- Nil Rs.2,75,000/- Rs.2,75,000/- 15 r + 1/5th along with 1/5th interest interest accumulated accumulated shall be kept in the form of one FDRs till attaining the age of majority of the petitioner/claim ant 5. Khushi 08.05.20 Daughte Rs.2,75,000/- Nil Rs.2,75,000/- Rs.2,75,000/- 16 r + 1/5th along with 1/5th interest interest accumulated accumulated shall be kept in the form of one FDRs till attaining the age of majority of the petitioner/claim ant TOTAL Rs.18,68,488/- 14.5 The following conditions shall be adhered to by
SBI, Tis Hazari Delhi with respect to the fixed deposits:-
(a) The Bank shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the claimant(s) i.e. the savings bank account(s) of the claimant(s) shall be an individual savings bank account(s) and not a joint account(s).
Devki Devi & ors. vs. Anil Kumar Chaudhary & ors.
[MACT No.377/2020] Page No.23 of 27 Digitally signed HARVINDER by HARVINDER SINGH SINGH Date: 2023.05.24 16:39:38 +0530 (b) The original fixed deposit shall be retained by
the bank in safe custody. However, the statement containing FDR number, FDR amount, date of maturity and maturity amount shall be furnished by bank to the claimant(s).
(c) The maturity amounts of the FDR(s) be credited by Electronic Clearing System (ECS) in the MACT bank account of the claimant (s) near the place of their residence.
(d) No loan, advance, withdrawal or pre-mature discharge be allowed on the fixed deposits without permission of the Court.
(e) The concerned bank shall not issue any cheque book and/or debit card to claimant(s). However, in case the debit card and/or cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount. The bank shall debit card (s) freeze the account of the claimant(s) so that no debit card be issued in respect of the account of the claimant(s) from any other branch of the bank.
(f) The bank shall make an endorsement on the passbook of the claimant(s) to the effect that no cheque book and/or debit card have been issued and shall not be issued without the permission of the Court and claimant(s) shall produce the passbook with the necessary endorsement before the Court on the next date fixed for compliance.
(g) It is clarified that the endorsement made by the bank along with the duly signed and stamped by the bank official on the passbook(s) of the claimant(s) is sufficient compliance of clause (g) above.
14.6 In accordance with the orders dated 08.02.2019 passed by Hon'ble High Court of Delhi in FAO no. 842/2003 in "Rajesh Tyagi and others Vs. Jaibir Singh and Ors.", Mr. Rajan Singh, Assistant General Manager has been appointed as Nodal Officer of State Bank of India having Phone No.022- 22741336/9414048606 and e mail ID [email protected]. In case of any assistance or non compliance, the aforesaid Nodal Officer may be contacted. A copy of this order be sent by e- mail to the aforesaid Nodal Officer of the aforesaid bank by the Ahlmad of the Court immediately in accordance with the directions of Hon'ble High Court of Delhi as given in the Devki Devi & ors. vs. Anil Kumar Chaudhary & ors.
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orders dated 07.12.2018. The Nodal Officer of the bank shall ensure the disbursement of the award amount within three weeks of the receipt of the e-mail as mentioned in the orders dated 07.12.2018 passed by Hon'ble High Court of Delhi.
15. The respondent No.3 Insurance Company shall deposit the award amount with the account of this Tribunal within 45 days. In case, the award amount is deposited by respondent no.3 Insurance Company within 45 days, Nazir of this Tribunal shall make a report upon this award and shall also make requisite entry in the required register. In case, the award amount is not so deposited within 45 days, the Nazir of this Tribunal shall put up a report after 45 days for further needful proceedings.
16. A copy of this award be given to the insurance company as well as to the petitioner free of cost.
17. 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).
18. File be consigned to Record Room after due compliance. Digitally signed by HARVINDER HARVINDER SINGH Announced in the open Court SINGH Date: 2023.05.24 today i.e. 24.05.2023 16:39:49 +0530 (HARVINDER SINGH) PO: MACT-01(West) THC/Delhi/24.05.2023 Devki Devi & ors. vs. Anil Kumar Chaudhary & ors.
[MACT No.377/2020] Page No.25 of 27FORM -XV SUMMARY OF COMPUTATION OF AWARD AMOUNT IN DEATH CASES
1. Date of accident : 21.08.2019
2. Name of the deceased : Mahesh Chandra
3. Age of the deceased : 34 years
4. Occupation of the deceased : Not proved
5. Income of the deceased : Rs.8013/-
6. Name, age and relationship of legal representative of deceased : -
S.No. Name Age/DOB Relation
(i) Devaki Devi 14.02.1992 Wife
(ii) Khusbu 28.01.2011 Daughter
(iii) Kanahiya 08.10.2012 Son
(iv) Lakchmi 23.07.2015 Daughter
(v) Khushi 08.05.2016 Daughter
Computation of Compensation : -
Sr.No. Heads Awarded by the Claim
Tribunal
7. Income of the deceased(A) Rs.8013/-
8. Add-Future Prospects (B) 40%
9. Less-Personal expenses of the ¼ deduction has been
deceased(C) done
10. Monthly loss of dependency Rs.8414/-
[(A+B)-C=D]
11. Annual loss of dependency (D Rs.1,00,968/-
x 12)
12. Multiplier(E) 16
13. Total loss of dependency Rs.16,15,488/-
(Dx12xE= F)
14. Medical Expenses(G) NIl
Devki Devi & ors. vs. Anil Kumar Chaudhary & ors.
[MACT No.377/2020] Page No.26 of 27 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2023.05.24 16:39:54 +0530 15. Compensation for loss of Rs.2,20,000/- consortium(H) 16. Compensation for loss of love NIL and affection(I) 17. Compensation for loss of Rs.16,500/- estate(J) 18. Compensation towards funeral Rs.16,500/- expenses(K) 19. TOTAL COMPENSATION Rs.18,68,488/- (F+G+H+I+J+K=L) 20. RATE OF INTEREST 7% per annum AWARDED 21. Interest amount up to the Rs.3,16,085.88 date of award (M) (W.e.f. 24.12.2020 to 24.05.2023 i.e. 2 years and 5 months) 22. Total amount including Rs.21,84,573.88 interest (L + M) (Rs.18,68,488/- +Rs.3,16,085.88) 23. Award amount released Rs.2,68,488/- 24. Award amount kept in FDRs Rs.16,00,000/- along with accumulated interest
25. Mode of disbursement of the Mentioned in the award award amount to the claimant (s).
26. Next date for compliance of 15.07.2023 the award.
Digitally signed by
HARVINDER HARVINDER SINGH
SINGH Date: 2023.05.24
16:39:59 +0530
(HARVINDER SINGH)
PO: MACT-01(West),
THC/Delhi/24.05.2023
Devki Devi & ors. vs. Anil Kumar Chaudhary & ors.
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