Delhi District Court
Dharamvir Sharma vs . Rahul Kapoor & Ors. on 13 March, 2018
IN THE COURT OF SH. RAJ KUMAR CHAUHAN, PRESIDING OFFICER:
MOTOR ACCIDENT CLAIMS TRIBUNAL: SOUTH EAST
DISTRICT/SAKET COURTS COMPLEX/NEW DELHI
MACT No. 128/17
FIR No. 651/16
Police Station - Lajpat Nagar
Dharamvir Sharma Vs. Rahul Kapoor & Ors.
Fatal Case
Shri Dharamvir Sharma S/o Late Shri Sukh Ram (Father of deceased)
R/o C57, Harkesh Nagar, Okhla, Ph3, New Delhi
............Petitioner/claimant
Verses
1. Shri Rahul Kapoor S/o Shri Rajeev Kapoor (Driver)
R/o 39, Kailash Hills, Amar Colony, New Delhi
2. Smt Meenu Kapoor W/o Shri Rajeev Kapoor (Owner)
R/o 39, Kailash Hills, Amar Colony, New Delhi
3. ICICI Lombard General Insurance Co. Ltd. (Insurer)
315, 3rd Floor, Agarwal City Mall, Pitampura,
New Delhi34
......................Respondents
Date of Institution : 16.01.2017
Date of reserving judgment/order : 26.02.2018
Date of Pronouncement : 13.03.2018
JUDGMENT:
1. Present claim proceedings were initiated on the basis of Detailed Accident Report (DAR) filed by the police for the fatal injuries suffered by deceased Yogesh Sharma @ Sonu (hereinafter referred to as deceased) in a road accident.
MACT No. 128/17 Dharamvir Sharma Vs. Rahul Kapoor & Ors. Page No. 1/ 252. Brief facts of the case are that on 28/29.09.2016 at about 12.15 AM (night), when deceased was crossing the BRT Road towards Chirag Delhi, offending Maruti Car bearing registration No. DL1CU4111, being driven in a rash and negligent manner and with high speed by respondent No. 1, hit deceased and went towards Moolchand Flyover. Deceased was rushed to Moolchand Hospital where he was declared 'brought dead'.
3. FIR No. 651/16 under Section 279/304A IPC was got registered at PS Lajpat Nagar. Police conducted investigation. After due investigation, police found respondent No. 1/Rahul Kapoor accused of rash and negligent driving and chargesheeted him for commission of offence punishable under Section 279/304A of Indian Penal Code.
4. During proceedings, respondent No. 1/ driver and respondent No. 2/owner filed their joint written statement asserting that no accident took place with the alleged offending vehicle as falsely alleged in the DAR. It is asserted that respondent No. 1 was not driving alleged offending vehicle on the date of accident and he has been falsely implicated in the present matter. It is asserted that respondent No. 1 was sleeping at his house and alleged offending vehicle was parked at his house at the time of alleged accident. It is asserted that respondent No. 2 is the owner of vehicle and she got her vehicle insured from ICICI Lombard General Insurance Co. Ltd. It is asserted that alleged offending vehicle was not involved in the accident.
5. During proceedings, respondent No. 3/Insurance Company filed its reply/ legal offer in the sum of Rs.2,11,290/ (after deducting 50% towards contributory negligence) for settling the claim of petitioner while admitting the insurance of offending vehicle. It is asserted that deceased was walking on road MACT No. 128/17 Dharamvir Sharma Vs. Rahul Kapoor & Ors. Page No. 2/ 25 negligently due to which accident occurred.
6. Following issues were framed by the learned predecessor of this Tribunal on 22.02.2017 :
1. Whether deceased Yogesh Sharma @ Sonu suffered fatal injuries in a road accident which took place on 29.09.2016 due to rash and negligent driving of offending vehicle bearing registration No. DL1CU4111 which was driven by respondent No. 1, owned by respondent No. 2 and insured with respondent No. 3? OPP
2. To what amount of compensation petitioners are entitled to and from whom?
3. Relief.
7. During proceedings, learned predecessor of this Tribunal passed directions on 18.04.2017 that petitioner is not entitled for any interest from the date of framing of issues till the conclusion of PE. Issues were framed on 22.02.2017 and PE was concluded on 17.05.2017. Thus, petitioner is not entitled for any interest from 22.02.2017 to 17.05.2017.
8. During evidence, petitioner No. 1/ Shri Dharamvir Sharma, father of deceased examined himself as PW1. He tendered his affidavit of evidence as Ex. PW1/A and relied upon the employment certificate of deceased issued by The Panchal Engineers & Fabricators as Ex. PW1/1.
9. Petitioners have got examined PW2 Rahul Bhati, as an eyewitness to the accident, who tendered his affidavit of evidence as Ex. PW2/A and relied upon copy of his driving licence as Ex. PW2/1 and his statement recorded under MACT No. 128/17 Dharamvir Sharma Vs. Rahul Kapoor & Ors. Page No. 3/ 25 Section 161 Cr.P.C. as Ex. PW2/2. Detailed testimony of this witness shall be discussed subsequently.
10. No other witness was examined by petitioner.
11. Respondent No. 1/ Rahul Kumar got himself examined as R1W1 and tendered his affidavit of evidence as Ex. R1W1/A. He has claimed that at the time of accident he was at his home and vehicle in question was parked at his home. He has deposed that he has been falsely implicated in the present case. Detailed testimony of this witness shall be discussed subsequently.
12. Respondent No. 2/ Smt Meenu Kapoor got herself examined as R2W1 and tendered her affidavit of evidence as Ex. R2W1/A. She has also denied the involvement of offending vehicle in the accident. She has deposed that vehicle in question was parked at her residence at the time of alleged accident. Detailed testimony of this witness shall be discussed subsequently.
13. Respondent No. 2/ Smt Meenu Kapoor also got examined Shri Rajeev Kapoor, who is father of respondent No. 1 and husband of respondent No. 2, as R2W2. R2W2 Rajeev Kapoor tendered his affidavit of evidence as R2W2/A and relied upon color photographs alongwith CD of vehicle in question as Ex. R2W2/1 and copy of RTI reply dated 17.02.2017 alongwith two PCR Forms as Ex. R2W2/2. Detailed testimony of this witness shall be discussed subsequently.
14. Respondent No. 3/ Insurance Company got examined Shri Saurabh Aggarwal, Nodal Officer, Vodafone Mobile Service Ltd. as R3W1. Detailed testimony of this witness shall be discussed subsequently.
MACT No. 128/17 Dharamvir Sharma Vs. Rahul Kapoor & Ors. Page No. 4/ 2515. Respondent No. 3/ Insurance Company also got examined Shri Surender Kumar, Nodal Officer, Bharti Airtel Ltd. as R3W2. Detailed testimony of this witness shall be discussed subsequently.
16. Respondent No. 3/ Insurance Company also got examined SI Amit Bhati as R3W3 who is the IO of connected criminal case. Detailed testimony of this witness shall be discussed subsequently.
17. No other witness was examined by any of the respondents.
18. After hearing the arguments and considering the material on record, my issue wise findings are as follows: Issue No. 1 (Negligence):
19. PW2 Rahul Bhati (eyewitness) has deposed that in the intervening night of 28/29.09.2016, he alongwith his friends namely Yogesh @ Sonu (deceased), Amit @ Kalu, Amit and Rinku went to take food from Moolchand in his car bearing registration No. DL7CT4698. After finishing food, they went towards Defence Colony Flyover. When they were going towards Defence Colony Flyover and got down from Moolchand Flyover, he stopped his car and deceased alongwith his other friends namely Amit @ Kalu and Rinku got out of the car to meet their friend. Thereafter, he took uturn to return back. Thereafter, Rinku called him and asked him where he is and asked him to come towards Lajpat Nagar Side. Thereafter, he saw that Rinku and Amit @ Kalu have safely crossed the road, but when deceased (Yogesh @ Sonu) was crossing the road, offending car bearing registration No. DL1CU4111, being driven by its driver in rash and negligent manner and with high speed, hit MACT No. 128/17 Dharamvir Sharma Vs. Rahul Kapoor & Ors. Page No. 5/ 25 deceased and did not stop. Thereafter, he alongwith his friends chased the offending car and noted down its number, but despite chasing said offending car disappeared. He has deposed that offending car was being driven with high speed and in a zigzag manner. During his crossexamination, PW2 Rahul Bhati has clarified that on the day of accident, he alongwith his friends were going from Moolchand Flyover to Defence Colony. Deceased alongwith Kalu & Rinku got down from the car to meet some friend. Thereafter, they took u turn from the Nizamuddin Circle and stopped the car about 100 meters before Moolchand Hospital. Thereafter, Rinku called him. He told them to cross the road and come to their side. Suddenly car bearing No. DL1CU4111 came with high speed and hit deceased and ran away from the spot. Nothing came in the crossexamination of PW2 which could create doubt on his version regarding the manner of accident.
20. Learned counsel for respondent No. 1/ driver and respondent No. 2 2/owner has argued that offending vehicle was not involved in the accident and respondent No. 1 was not driving alleged offending vehicle on the date of accident. Learned counsel for respondent No. 3/Insurance Company has also argued that there is foulplay in the investigation done by the police as neither the offending vehicle nor the respondent No. 1 was involved in the accident and for the same reason, respondent No. 3/Insurance Company is not liable to pay compensation.
21. Learned counsel for respondent No. 1 and 2 has relied upon the statement of respondent No. 1/ R1W1 Rahul Kapoor (driver of offending vehicle) who has deposed that he was at home at the time of alleged incident and alleged offending vehicle was also parked at his residence at the time of alleged accident. He has deposed that he has been falsely implicated and he has not MACT No. 128/17 Dharamvir Sharma Vs. Rahul Kapoor & Ors. Page No. 6/ 25 committed any offence. During his crossexamination by respondent No. 3/Insurance Company, R1W1 Rahul Kapoor has deposed that he was at home on 29.09.2016 at about 12.00 Noon. On 28.09.2016, he had gone out at 10.00 PM and returned home at 10.30 PM. Thereafter he was at home. On 28.09.2016 to 29.09.2016 from 10.00 PM till 06.00 AM in the morning, vehicle Ciaz was parked in his house. During his crossexamination, he has also deposed that he has no knowledge about the accident and police has falsely implicated him. However, during his crossexamination by the learned counsel for petitioner, R1W1 Rahul Kapoor has admitted that a criminal case is pending against him in the concerned court of PS Lajpat Nagar. He also admitted that he came to court on 07.10.2016 for his TIP. In his entire affidavit of evidence as well as in crossexamination, respondent No. 1 has not stated as to what he has done regarding his alleged false implication by the police. He has not deposed that he has filed any complaint before any authority regarding his false implication. This conduct of respondent No. 1 compels this Tribunal to draw an adverse inference against him. In these circumstances, testimony of respondent No. 1 cannot be considered.
22. Respondent No. 2/ Meenu Kapoor (owner of offending vehicle) has deposed that accident was not caused by her vehicle which was parked at her residence at the time of alleged accident. She has deposed that Investigating Officer i.e. SI Amit Bhati had forced her to write and sign on statement on notice under Section 133 of Motor Vehicle Act by saying that if she refuse to write and sign as per his dictation, then he would not give bail to her son and they have to approach the concerned court for bail. She has further deposed that finding no other way, she had to write as per dictation of the IO and sign statement on the notice under Section 133 of Motor Vehicle Act. She has also deposed that alleged accident was not caused by her son (respondent No. 1 herein). Perusal MACT No. 128/17 Dharamvir Sharma Vs. Rahul Kapoor & Ors. Page No. 7/ 25 of notice under Section 133 of Motor Vehicle Act (Ex. R2W2/A) reveals that respondent No. 2/ Meenu Kapoor has given reply to said notice as follows :'main Meenu Kapoor yeh gaadi mere naam par hai aaj thaane mein aakar maine aap ko apni gaadi pesh ki weh 28/29.09.2016 ko meri gaadi ko diye huye samay par mera beta Rahul chala raha tha jisko aaj maine aap ke saamne pesh kiya hai'. Thus, perusal of notice under Section 133 of Motor Vehicle Act shows that respondent No. 2 has admitted that offending vehicle was involved in the accident and the same was driven by her son (respondent No. 1 herein). However, respondent No. 2 has claimed that IO of the criminal case forced her to sign on notice under Section 133 of Motor Vehicle by saying that he would not give bail to her son and they have to approach the concerned court for his bail. During her crossexamination, R2W1 Smt Meenu Kapoor has admitted that she received notice under Section 133 of Motor Vehicle Act on 01.10.2016 and replied the notice is in her own handwriting. She has also admitted that she has not made any complaint against the IO in the police station or in the court. Respondent No. 2 is claiming that she was pressurized by the IO and she wrote reply on notice under Section 133 of Motor Vehicle as per dictation of IO, but she did not made any complaint against the IO before the court or in the police station. All these depositions regarding reply under pressure and as per dictation of the IO to the notice under Section 133 of Motor Vehicle Act by respondent No. 2 i.e. owner of the vehicle is an afterthought because nothing is mentioned in the written statement on behalf of driver and owner. Further, when IO was examined as R3W3 at the request of respondents, no suggestion was given to the IO as regard to any such alleged pressure or threat given by the IO to the respondent No. 2/ owner of the vehicle. In the absence of any pleading in the written statement and in the absence of any suggestion in the crossexamination of the IO, mere deposition by respondent No. 2 that she was pressurized by the IO cannot be considered and is liable MACT No. 128/17 Dharamvir Sharma Vs. Rahul Kapoor & Ors. Page No. 8/ 25 to be discarded.
23. Respondent No. 2 also got examined Shri Rajeev Kapoor as R2W2 who is father of respondent No. 1 and husband of respondent No. 2. R2W2 Rajeev Kapoor has also deposed that alleged offending vehicle was parked at his residence at the time of accident. He has deposed that IO/ SI Amit Bhati approached his wife (respondent No. 2) on 01.10.2016 and produced notice under Section 133 of Motor Vehicle Act. At that time, he was at his shop in Nehru Place. His wife talked to him over telephone about the said notice. He also talked with IO and told him that neither the offending vehicle nor his son Rahul Kapoor is involved in the accident and they cannot accept the notice. He has deposed that IO assured him that he would take the vehicle for forensic test and if nothing material is found, then he would close the matter. He has deposed that when they refused to accept the notice under Section 133 of Motor Vehicle Act, IO threatened him that if they refuse to accept the notice, then he would bring police force and forcibly take the car and his son (respondent No. 1 herein) to the police station and would not release his son on bail and they have to take bail from the concerned court. IO assured them that if nothing is found in the forensic test, then he would not further proceed in the matter. He has deposed that his wife, his son (respondent No. 1) and his elder son and two brothersinlaw went to PS Lajpat Nagar on 05.10.2016 to hand over the car for forensic test and on his instructions, his son Rishabh clicked the photos of the vehicle alongwith IO when he inspected the vehicle outside PS Lajpat Nagar. He placed on record colored photographs of the car alongwith CD as Ex. R2W2/1. He has further deposed that in police station, IO had completely changed his tone and detained his son Raul and asked his wife to write on the notice about the involvement of Rahul in the accident otherwise, he would not release his son on police bail. On finding no other way, his wife MACT No. 128/17 Dharamvir Sharma Vs. Rahul Kapoor & Ors. Page No. 9/ 25 wrote her statement on the notice as per dictation of IO. He has deposed that he filed a RTI Application through his elder son Rishab Kapoor seeking call records of calls made to PCR 100 about the alleged accident and it is found that the police eyewitnesses and callers are different. He has placed on record copy of RTI fee receipt alongwith RTI reply and PCR Forms as Ex. R2W2/1.
24. In his entire testimony, R2W2 Rajeev Kapoor has deposed regarding four things i.e. (1) forcible reply taken from her wife on notice under Section 133 of Motor Vehicle Act, (2) his son/ respondent No. 1 is falsely implicated, (3) he placed on record CD and photographs of offending vehicle allegedly taken before giving the offending vehicle for inspection and (4) he also placed on record RTI application and PCR Forms. The entire deposition of R2W2 Rajeev Kapoor is beyond pleading as nothing is mentioned in the written statement filed on behalf of respondents in that regard. Moreover, as per own admissions of R2W2 Rajeev Kapoor, at the time of reply to notice under Section 133 of MV Act, his elder son, respondent No. 1/ driver and his two brotherinlaws were present but none of them has been examined as a witness to prove the alleged threat. The deposition of R2W2 is a mere hearsay evidence and for that reason also the same is not admissible under the Indian Evidence Act.
25. Regarding photographs and CD of offending vehicle placed on record as Ex. R2W2/1, learned counsel for petitioner has argued that there is no proof that CD & photographs placed on record by the R2W2 were taken on 05.10.2016 before giving the same for inspection and for the same reason it cannot be considered. Crossexamination of R2W2 Rajeev Kapoor shows that, on seeing photographs, he has admitted that there is no proof to say that the said photographs were taken on 05.10.2016 and volunteered to say that they were not expert of creating evidence. In the absence of any proof that CD and MACT No. 128/17 Dharamvir Sharma Vs. Rahul Kapoor & Ors. Page No. 10/ 25 photographs placed on record by R2W2 Rajeev Kapoor as Ex. R2W2/1 were taken before the inspection of vehicle, said documents cannot be considered. Regarding RTI reply and PCR Forms placed on record as Ex. R2W2/2, R2W2 Rajeev Kapoor has deposed that records of calls made to 100 number shows that police eyewitnesses and callers are different. Perusal of PCR Forms placed on record as Ex. R2W2/2 shows that two calls were made at 100 number from two mobile phones i.e. M. No. 959937814 of Saurabh Nagar and M. No. 8860506088 of Jasmeet Singh.
26. Learned counsel for Insurance Company got examined two witnesses namely R3W1 Saurabh Aggarwal, Nodal Officer, Vodafone Mobile Services Ltd and R3W2 Surender Kumar, Nodal Officer, Bharti Airtel Limited to prove call details of abovesaid two mobile phone numbers. R3W1 placed on record documents pertaining to mobile phone No. 8860506088 from Ex. R3W1/A to Ex. R3W1/D. R3W2 placed on record documents pertaining to mobile phone No. 9599937814 from Ex. R3W2/A to Ex. R3W2/D. Documents produced by both these witnesses shows that a call on 100 number was made from both these mobile phones on 29.09.2016. Learned counsel for Insurance Company has pointed out that PW2 Rahul Bhati has deposed that he called the police after the accident and police has also shown him as 'eyewitness and caller' in the charge sheet, but calls record made to PCR as well as documents produced by R3W1 and R3W2 shows that calls were made from aforementioned two mobile numbers and not by PW2 Rahul which shows that he is a planted witness. He has also argued that no eyewitness was found at the spot of accident and it was only on the next day of accident PW2 Rahul alongwith his friends approached the police officials in PS Lajpat Nagar. All the above deposition and arguments are beyond pleading as nothing is mentioned in the written statement of respondent MACT No. 128/17 Dharamvir Sharma Vs. Rahul Kapoor & Ors. Page No. 11/ 25 in that regard. IO/ SI Amit Bhati as R3W3 has proved charge sheet alongwith other documents from Ex. R3W3/A and Ex. R3W3/B, but he volunteered to say during his crossexamination that there were two calls in this case one was made by Rahul Bhati and another caller could not be contacted despite efforts. He also deposed during his crossexamination that number of the callers are mentioned in the DAR filed by him in document Ex. R3W3/D.
27. Mechanical inspection report of offending vehicles shows damages sustained by offending vehicle in the accident as follows: "front bumper scratched, front number plate dented, left front head light scratched, left front fender scratched, front bonnet right side dented/ pressed". The mechanical inspection report was part of DAR and has been supplied to the respondents before filing of the written statement. Nothing is mentioned in the written statement that there were no fresh damages on the offending vehicle and the mechanical inspection report is not correct. Nothing is suggested to the investigating officer R3W3 in his crossexamination by the respondents regarding the correctness of mechanical inspection report which has found fresh damages on the offending vehicle. While replying to notice under Section 133 of Motor Vehicle Act, respondent No. 2 has already admitted that his son (respondent No. 1) was driving offending vehicle. Furthermore, after due investigation by the police, respondent No. 1/driver of offending vehicle was found accused of rash and negligent driving and he was chargesheeted for commission of offence punishable under Section 279/304A of Indian Penal Code.
28. To determine the negligence of the driver of the offending vehicle, I am also being guided by the judgment of Hon'ble High Court (MP) in case titled as "Basant Kaur & Ors Vs. Chattar Pal Singh and Ors" [2003 ACJ 369 MP (DB)], wherein it has been held that registration of a criminal case against the MACT No. 128/17 Dharamvir Sharma Vs. Rahul Kapoor & Ors. Page No. 12/ 25 driver of the offending vehicle is enough to record the finding that the driver of offending vehicle is responsible for causing the accident. Further it has been held in catena of cases that the proceedings under the Motor Vehicles Act are not akin to the proceedings as in civil suit and hence strict rules of evidence are not required to be followed in this regard. I am also being guided by the judgment of Hon'ble High Court of Delhi in "National Insurance Company Limited Vs. Pushpa Rana" (2009 ACJ 287), wherein it was held that in case the petitioner files the certified copy of the criminal record or the criminal record showing the completion of the investigation by the police or the issuance of charge sheet under Section 279/304 A IPC or the certified copy of the FIR or in addition the recovery memo or the mechanical inspection report of the offending vehicle, these documents are sufficient proof to reach to the conclusion that the driver was negligent. It is also settled law that the term rashness and negligence has to be constructed lightly while making a decision on a petition for claim for the same as compared to the word rashness and negligence as finds mention in the Indian Penal Code. This is because the chapter in the Motor Vehicle Act dealing with compensation is a benevolent legislation and not a penal one.
29. As per above discussion, it is proved on record that deceased suffered fatal injuries due to rash and negligent driving of offending vehicle by respondent No. 1. Accordingly, issue No. 1 is decided in favour of the petitioner and against the respondents.
Issue No. 2 (Compensation):
30. Apex Court in Sarla Verma Vs. DTC (AIR 2009 SC 3104) comprehensively dealt with the relevant principals relating to the assessment of compensation in death cases. Apex Court in this case observed that in fatal accident, the MACT No. 128/17 Dharamvir Sharma Vs. Rahul Kapoor & Ors. Page No. 13/ 25 measure of damage is pecuniary loss suffered or is likely to be suffered by each of dependent as a result of death, and basically only three facts need to be established by the claimants for assessing compensation in case of death : (a) age of the deceased or claimant whichever is higher, (b) income of the deceased and (c) number of dependents. Hon'ble Apex Court in case titled 'National Insurance Company Ltd. Vs. Pranay Sethi & Ors.' (Special Leave Petition (Civil) No. 25590/2014, decided on 31.10.2017) has dealt with the concept of 'just compensation'. Paragraph No. 57 of abovesaid Judgment is reproduced as under:
"57. Section 168 of the Act deals with the concept of 'just compensation' and the same has to be determined on the foundation of fairness, resonableness and equability on acceptable legal standard because such determination can never be in arithmetical exactitude. It can never be perfect. The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case.................. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and nonviolation of the principle of equability....... The determination has to be on the foundation of evidence brought on record as regards the age and income of the deceased and thereafter the apposite multiplies to be applied....... It is a well accepted norm that money cannot substitute a life lost but an effort has to be made for grant of just compensation having uniformity of approach. There has to be a balance between the two extremes, that is, a windfall and the pittance, a bonanza and the modicum.
31. In the light of aforesaid guidelines and parameters, this Tribunal has to assess the compensation to be awarded to the claimants/petitioners.
32. Age of deceased: As per Election ID No. SJL0043489, deceased was aged about 24 years on 01.01.2008 which implies that he was aged about 22 years on the date of accident. In Pranay Sethi (supra), Hon'ble Apex Court has held MACT No. 128/17 Dharamvir Sharma Vs. Rahul Kapoor & Ors. Page No. 14/ 25 that the age of the deceased should be the basis for applying multiplier. Appropriate multiplier, as per 'Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr.' [(2009) 6 SCC 121], is 18.
33. Income of deceased: PW1 Dharamvir has deposed in his affidavit of evidence that his son was earning Rs.16,000/ per month from his job in The Panchsheel Engineers & Fabricators and he was also earning extra income of Rs.10,000/ from his own work of welding iron. The petitioner has, thus, claimed that his son was earning Rs.26,000/ per month and was making payment of Rs.10,000/ per month to him. Petitioner has filed on record one Certificate Ex. PW1/1 issued from The Panchsheel Engineers & Fabricators showing monthly income of deceased as Rs.16,000/ per month. In the said certificate, deceased is shown tot be working as welder and fitter w.e.f. 02.11.2015. In the crossexamination, it was simply suggested by the learned counsel for Insurance Company that certificate Ex. PW1/1 is false and fabricated and the said suggestion has been denied by PW1. Nothing was suggested in the crossexamination that the deceased was not working as welder and fitter since 02.11.2015. Hence, the deposition of PW1 regarding his son earning Rs.16,000/ per month while working as welder and fitter since 02.11.2015 with The Panchsheel Engineers and Fabricators remained unchallenged and unrebutted. Further, the deposition of PW1 to the effect that his son was giving Rs.10,000/ per month to him for taking care of all household expenses remained unchallenged and unrebutted. Monthly income of deceased is taken as Rs.16,000/ per month or Rs.1,92,000/ per annum.
34. Annual income of deceased i.e. Rs.1,92,000/ is not liable for any tax deduction as tax on annual income upto Rs.2,50,000/ is Nil for the assessment year 2017
18. MACT No. 128/17 Dharamvir Sharma Vs. Rahul Kapoor & Ors. Page No. 15/ 25
35. Dependents & deduction for personal and living expenses: Deceased was unmarried. Thus, per Sarla Verma's case (supra), 1/2 (half) of income of the deceased is to be deducted towards personal and living expenses. Hence, income of deceased is taken as (Rs.16,000/ minus 1/2 of Rs.16,000/) Rs.8,000/ per month.
36. Future prospects: In 'Santosh Devi Vs. National Insurance Co. Ltd.' [(2012) 6 SCC 421], Hon'ble Apex Court has not accepted as a principle that a selfemployed person remains on a fixed salary throughout his life. It has taken note of the rise in the cost of living which affects everyone without making any distinction between the rich and the poor. In Pranay Sethi (supra), it is held that 'to state that the legal representatives of a deceased who was on a fixed salary would not be entitled to the benefit of future prospects for the purpose of computation of compensation would be inapposite'. Hon'ble Apex Court has also discussed as to what should be the addition in the income of deceased towards the future prospects and concluded that 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. Since deceased was aged less than 40 years on the date of accident, there should be an increase of 40% in the income of deceased as per mandate of Pranay Sethi (supra). Hence, income of deceased after increasing the same by 40% comes out to be (Rs.8,000/ + 40% of Rs.8,000/) Rs.11,200/ per month.
37. Loss of Dependency: In view of the above, the calculation of loss of MACT No. 128/17 Dharamvir Sharma Vs. Rahul Kapoor & Ors. Page No. 16/ 25 dependency is as follows : Rs.11,200/ X 12 X 18 = Rs.24,19,200/. In addition, legal heirs of deceased is awarded amount of Rs.15,000/ each towards loss of estate and funeral expenses. The total compensation comes out to Rs.24,49,200/ (Rs. Twenty Four Lac Forty Nine Thousand Two Hundred Only).
RELIEF:
38. I hereby award an amount of Rs.24,49,200/ (Rs. Twenty Four Lac Forty Nine Thousand Two Hundred Only) as compensation with interest @ 9% per annum, from the date of filing of present petition (excluding interest from 22.02.2017 to 17.05.2017) till the date of realization of the amount in favour of the petitioners and against the respondents. Respondent No. 3/Insurance Company, being the insurer of offending vehicle is directed to discharge the liability of the award amount within a period of 30 days from today along with the interest @ 9% per annum, failing which interest @ 12% per annum shall be charged for the period of delay.
39. Release of awarded amount:
(i) A sum of Rs.24,49,200/ alongwith proportionate interest thereon, is awarded to the petitioner being father of deceased. Out of said amount, Rs.3,49,200/ alongwith proportionate interest be immediately released to him on realization. And for balance amount of Rs.21,00,000/ alongwith proportionate interest thereon be kept in form of FDRs in the following phased manner :
1. Rs.1,50,000/ for period of 1 year. 7.Rs.1,50,000/ for period of 7 yrs.
2. Rs.1,50,000/ for period of 2 yrs. 8.Rs.1,50,000/ for period of 8 yrs.
3. Rs.1,50,000/ for period of 3 yrs. 9.Rs.1,50,000/ for period of 9 yrs.
4. Rs.1,50,000/ for period of 4 yrs. 10.Rs.1,50,000/ for period of 10 yrs.
5. Rs.1,50,000/ for period of 5 yrs. 11.Rs.1,50,000/ for period of 11 yrs.MACT No. 128/17 Dharamvir Sharma Vs. Rahul Kapoor & Ors. Page No. 17/ 25
6. Rs.1,50,000/ for period of 6 yrs. 12.Rs.1,50,000/ for period of 12 yrs.
13.Rs.1,50,000/ for period of 13 yrs.
14.Rs.1,50,000/ for period of 14 yrs.
40. Deposition of awarded amount with STATE BANK OF INDIA, Saket Court Branch, New Delhi.
41. In terms of the directions given by Hon'ble High Court in case titled "Rajesh Tyagi Vs. Jaibir Singh and Ors." bearing FAO number 842/2003 decided on 08.06.2009, UCO Bank/State Bank of India has agreed to open a Special Fixed Deposit Account for the victims of road accidents.
42. As per orders of Hon'ble High Court in case titled " New India Assurance Co. Ltd. Vs. Ganga Devi & ors. Bearing MAC. App. 135/2008" as well as in another case titled as "Union of India Vs. Nanisiri" bearing MAC Appeal No. 682/2005 dated 13.01.2010, directions were given to the Claims Tribunal to deposit part of the awarded amount in fixed deposit in a phased manner depending upon the financial status and financial needs of the claimant.
43. In consonance to the idea by which part of the awarded amount is ordered to be kept in fixed deposit/ savings account by Hon'ble High Court, respondent No. 3 is directed to deposit the awarded amount in favour of the petitioner with State Bank of India, Saket Courts Complex Branch, against account of petitioner. Within a period of 30 days from today, failing which respondent No. 3 shall be liable to pay future interest @ 12% per annum till realization (for the delayed period).
44. Upon the aforesaid amount being deposited, the State Bank of India, Saket MACT No. 128/17 Dharamvir Sharma Vs. Rahul Kapoor & Ors. Page No. 18/ 25 Court Complex, New Delhi, is directed to keep the awarded amount in the "Fixed deposit/saving account" in the following manner:
(i) The interest on the fixed deposit be paid to the petitioner/claimant by Automatic Credit of interest of his saving bank accounts with State Bank of India, Saket Court Branch, New Delhi.
(ii) Withdrawal from the aforesaid account shall be permitted to claimant/ petitioner after due verification and the Bank shall issue photo identity Card to claimant/ petitioner to facilitate identity.
(iii) No cheque book or debit card be issued to claimant/ petitioner without the permission of this Court.
(iv) The original fixed deposit receipts shall be retained by the Bank in safe custody. However, the original pass Book shall be given to the claimant/ petitioner alongwith photocopy of the FDR's.
(v) The original fixed deposit receipts shall be handed over to claimant/ petitioner at the end of the fixed deposit period.
(vi) No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the permission of this Court.
(vii) Half yearly statement of account be filed by the Bank in this Court.
(viii) On the request of claimant/ petitioner, the Bank shall transfer the Savings Account to any other branch of State Bank of India, according to his convenience.
(ix) Claimant/ petitioner shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit Account to Branch Manager, State Bank of India, Saket Courts Complex Branch, New Delhi.
Directions for the respondent No. 3: Respondent No. 3 is directed to file the compliance report of their having deposited the awarded amount with the State Bank of India, Saket Court Branch in this Tribunal within a period of 30 MACT No. 128/17 Dharamvir Sharma Vs. Rahul Kapoor & Ors. Page No. 19/ 25 days from today.
45. In pursuance to the directions passed in Modified Motor Accident Claims Tribunal Agreed Procedure as approved by Hon'ble High Court of Delhi, petitioner/ claimant is directed to open a savings bank account in a nationalized bank near the place of his residence and the concerned bank is directed to not issue any cheque book and/or debit card to the claimant(s) and if the same have already been issued, the bank is directed to cancel the same and make an endorsement on the passbook of the claimant(s) to the effect that no cheque book and/ or debit card shall be issued without permission of the Court. The claimant(s) is directed to produce the copy of the order before the concerned bank whereupon the bank is directed to make the endorsement on the passbook. The claimant(s) is directed to produce the passbook with the necessary endorsement as well as Aadhar Card and PAN Card before this Tribunal on the next date of hearing.
46. Respondent No. 3 will intimate to the claimant/ petitioner about having deposited the cheque in favour of petitioner in terms of the award, at the address of the petitioners mentioned at the title of the award, so as to facilitate them to withdraw the same.
47. Copy of this Award be given to the parties free of cost and a copy be also sent to SBI, Saket Court Complex Branch for record and compliance.
FORM - IV A SUMMARY OF COMPUTATION OF AWARD AMOUNT IN DEATH CASES TO BE INCORPORATED IN THE AWARD
1. Date of accident: 29.09.2016 MACT No. 128/17 Dharamvir Sharma Vs. Rahul Kapoor & Ors. Page No. 20/ 25
2. Name of deceased: Yogesh Sharma @ Sonu
3. Age of the deceased: 22 years
4. Occupation of the deceased: Welder
5. Income of the deceased: Rs.16,000/ per month.
6. Name, age and relationship of legal representative of deceased:
S. Name Age Relation
No.
(i) Dharamvir 59 years (at the Father
time of accident)
Computation of Compensation
S. Heads Awarded by the Claims Tribunal
No.
7. Income of deceased (A) Rs.16,000/ per month
8. AddFuture Prospects (B) Rs.3,200/
9. LessPersonal expenses of the Rs.8,000/
deceased (C)
10. Monthly loss of dependency Rs.11,200/ per month [(A+B) - C = D]
11. Annual loss of dependency (D x Rs.1,34,400/
12) 12. Multiplier (E) 18
13. Total loss of dependency Rs.24,19,200/ (Dx12xE=F)
14. Medical Expenses (G) NIL
15. Compensation for loss of love NIL (as per dicta of 'Pranay Sethi' and affection (H) (supra)
16. Compensation for loss of NIL consortium (I)
17. Compensation for loss of estate Rs.15,000/ (J)
18. Compensation towards funeral Rs.15,000/ expenses (K) MACT No. 128/17 Dharamvir Sharma Vs. Rahul Kapoor & Ors. Page No. 21/ 25
19. TOTAL COMPENSATION Rs.24,49,200/ (F+G+H+I+J+K=L)
20. RATE OF INTEREST @9% per annum AWARDED
21. Interest amount up to the date of Rs.2,06,059/ (excluding interest from award (M) 22.02.2017 to 17.05.2017)
22. Total amount including interest Rs.26,55,259/ (L+M)
23. Award amount released. Out of total award amount, a sum of Rs.3,49,200/ with proportionate interest is directed to be released.
24. Award amount kept in the FDRs Out of total award amount, a sum of Rs.21,00,000/ with proportionate interest is directed to be kept in the form of FDRs.
25. Mode of disbursement of the Bank Manager, SBI, Saket Court award amount to the claimants Complex, Saket, New Delhi is directed
(s) (Clause 29) to open bank accounts in the name of petitioners and to keep the FDRs as per directions.
26. Next Date for compliance of the 16.04.2018 award (Clause 31) FORMV COMPLIANCE OF THE PROVISIONS OF THE MODIFIED CLAIMS TRIBUNAL AGREED PROCEDURE TO BE MENTIONED IN THE AWARD 1 Date of the accident. 29.09.2016 2 Date of intimation of the accident 30.09.2016 by the Investigating Officer to the Claims Tribunal.
3 Date of intimation of the accident Not available.
by the Investigating Officer to the Insurance Company.
4 Date of filing of Report under Not known.
Section 173 Cr.P.C. before the MACT No. 128/17 Dharamvir Sharma Vs. Rahul Kapoor & Ors. Page No. 22/ 25 Metropolitan Magistrate.
5 Date of filing of Detailed Accident 16.01.2017 Information Report (DAR) by the Investigating Officer before Claims Tribunal.
6 Date of service of DAR on the 16.01.2017 Insurance Company.
7 Date of service of DAR on the 16.01.2017 claimant(s).
8 Whether DAR was complete in all Yes respects?
9 If not, state deficiencies in the Not applicable DAR?
10 Whether the police has verified the Yes documents filed with DAR?
11 Whether there was any delay or DAR was not filed within
deficiency on the part of the the prescribed time period,
Investigating Officer? If so, but he filed various
whether any action/ direction applications for extension of
warranted? time in filing DAR. No
action was warranted.
12 Date of appointment of the Not available.
Designated Officer by the
Insurance Company.
13 Name, address and contact Not available.
number of the Designated Officer
of the Insurance Company.
14 Whether the Designated Officer of No.
the Insurance Company submitted
his report within 30 days of the
DAR?
15 Whether the Insurance Company Insurance Company
admitted the liability? If so, admitted liability to pay
whether the Designated Officer of compensation. the Insurance Company fairly computed the compensation in MACT No. 128/17 Dharamvir Sharma Vs. Rahul Kapoor & Ors. Page No. 23/ 25 accordance with law.
16 Whether there was any delay or Reply to DAR was not filed deficiency on the part of the within the prescribed period, Designated Officer of the but opportunity to file reply Insurance Company? If so, was granted to Insurance whether any action/direction Company by the learned predecessor of this Tribunal warranted?
on 14.02.2017 and reply was filed on the next date i.e. 22.02.2017. No action was warranted.
17 Date of response of the claimant(s) 22.02.2017 to the offer of the Insurance Company.
18 Date of the award. 13.03.2018 19 Whether the award was passed No. with the consent of the parties?
20. Whether the claimant(s) were Yes.
directed to open savings bank account(s) near their place of residence?
21. Date of order by which claimant(s) 13.03.2018 were directed to open savings bank account(s) near his place of residence and produce PAN Card and Aadhar Card and the direction to the bank not issue any cheque book/ debit card to the claimant(s) and make and endorsement to this effect on the passbook(s)
22. Date of which the claimant(s) To be produced by the produced the passbook of their petitioner on the next date savings bank account near the i.e. 16.04.2018 place of their residence alongwith the endorsement, PAN Card and Aadhar Card?
MACT No. 128/17 Dharamvir Sharma Vs. Rahul Kapoor & Ors. Page No. 24/ 2523. Permanent Residential Address of As mentioned in array of the claimant(s) parties.
24. Details of savings bank account(s) To be given by the of the claimant(s) and the address petitioner on the next date of the bank with IFSC Code. i.e. 16.04.2018
25. Whether the claimant(s) savings Petitioners is directed to bank account(s) is near his place of open bank account near his residence? residence.
26. Whether the claimant(s) examined No, but his financial at the time of passing of the award condition and needs were to ascertain his/their financial inquired.
condition?
Announced in open Court
Dated:13.03.2018 (Raj Kumar Chauhan)
POMACT02 (SE)Saket, New Delhi
13.03.2018
MACT No. 128/17 Dharamvir Sharma Vs. Rahul Kapoor & Ors. Page No. 25/ 25