Delhi District Court
Lrs Of Deepu vs . Gian Chand & Ors. Page 1 Of 38 on 27 August, 2022
LRs of Deepu Vs. Gian Chand & Ors. Page 1 of 38
IN THE COURT OF MS. JASJEET KAUR, PRESIDING OFFICER, MOTOR
ACCIDENT CLAIMS TRIBUNAL, NORTH WEST DISTRICT, ROHINI COURTS,
DELHI
New No.493252016
UNIQUE ID No. : DLNW010000392011
1. Ms. Munni Devi, W/o Late Sh. Gore Lal
(Mother of deceased Deepu)
R/o C1/58, Jagdamba Market, Sultan Puri,
Delhi
Also at: H. No.57, C1 Block, Sultan Puri, Delhi.
2. Sh. Neeraj, S/o Late Sh. Gore Lal
(brother of deceased Deepu)
R/o Village Dharampur, District Kanpur, U.P.
Also at : C1/16, Sultan Puri, Delhi.
At present : H. No.57, C1 Block, Sultan Puri, Delhi.
........ Petitioners/claimants
Vs.
1. Sh. Gian Chand S/o Sh. Devi Ram,
R/o Village Jakhol, PO Dharmana,
PO Nalagarh, District Solan
Himachal Pradesh.
....... Drivercumowner /R1
2. Reliance General Insurance,
Anil Dhirubhai Ambani Group,
Registered Office: Reliance Centre,
19, Walchand Hirachand Marg,
Ballard Estate, Mumbai400 001.
........ Insurance Co./R2
....... Respondents
LRs of Deepu Vs. Gian Chand & Ors. Page 1 of38
LRs of Deepu Vs. Gian Chand & Ors. Page 2 of 38
Other details
DATE OF INSTITUTION : 24.10.2011
DATE OF RESERVING JUDGMENT : 27.08.2022
DATE OF PRONOUNCEMENT : 27.08.2022
FORM - V
COMPLIANCE OF THE PROVISIONS OF THE MODIFIED CLAIMS
TRIBUNAL AGREED PROCEDURE TO BE MENTIONED IN THE
AWARD AS PER FORMAT REFERRED IN THE ORDER PASSED BY
THE HON'BLE DELHI HIGH COURT IN FAO 842/2003 RAJESH TYAGI
Vs. JAIBIR SINGH and ORS. VIDE ORDER DATED 07.12.2018.
1. Date of the accident 30.08.2011
2. Date of intimation of the accident by the investigating 24.10.2011
officer to the Claims Tribunal
3. Date of intimation of the accident by the investigating 24.10.2011
officer to the insurance company.
4. Date of filing of Report under section 173 Cr.P.C. Not mentioned in the
before the Metropolitan Magistrate DAR
5. Date of filing of Detailed Accident Information Report 24.10.2011
(DAR) by the investigating Officer before Claims
Tribunal
6. Date of Service of DAR on the Insurance Company 24.10.2011
7. Date of service of DAR on the claimant (s). 24.10.2011
8. Whether DAR was complete in all respects? Yes
9. If not, whether deficiencies in the DAR removed later N/A
on?
10. Whether the police has verified the documents filed Yes.
with DAR?
11. Whether there was any delay or deficiency on the N/A
part of the Investigating Officer? If so, whether any
action/direction warranted?
12. Date of appointment of the Designated Officer by the 24.10.2011
insurance Company.
13. Name, address and contact number of the Designated Sh. Sujit Kumar
Officer of the Insurance Company. Jaiswal
14. Whether the designated Officer of the Insurance No.
LRs of Deepu Vs. Gian Chand & Ors. Page 2 of38
LRs of Deepu Vs. Gian Chand & Ors. Page 3 of 38
Company submitted his report within 30 days of the
DAR? (Clause 22)
15. Whether the insurance company admitted the Legal offer was filed
liability? If so, whether the Designated Officer of the but it was not fairly
insurance company fairly computed the compensation computed.
in accordance with law.
16. Whether there was any delay or deficiency onthe part N/A
of the Designated Officer of the Insurance Company?
If so, whether any action/direction warranted?
17. Date of response of the claimant (s) to the offer of the Petitioner denied the
Insurance Company . legal offer
18. Date of the Award 27.08.2022
19. Whether the award was passed with the consent of No
the parties?
20. Whether the claimant(s) were directed to open saving Yes
bank account(s) near their place of residence?
21. Date of order by which claimant(s) were directed to 21.01.2020
open saving 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 an
endorsement to this effect on the passbook(s).
22. Date on which the claimant (s) produced the 17.09.2021
passbook of their saving bank account near the place
of their residence along with the endorsement, PAN
Card and Aadhar Card?
23. Permanent Residential Address of the Claimant(s) As mentioned above
24. Details of saving bank account(s) of the claimant(s) Petitioner Smt.
and the address of the bank with IFSC Code MunniDevi, savings
bank a/c
no.59165694583,
and Sh. Niraj, saving
bank a/c
no.59178124302
both with Allahabad
Bank, Village Mangol
Pur Kalan Branch,
Delhi.
IFSC :ALLA0210648
25. Whether the claimant(s) saving bank account(s) is Yes
near his place of residence?
26. Whether the claimant(s) were examined at the time Yes
LRs of Deepu Vs. Gian Chand & Ors. Page 3 of38
LRs of Deepu Vs. Gian Chand & Ors. Page 4 of 38
of passing of the award to ascertain his/their financial
condition.
27. Account number/CIF No, MICR number, IFSC Code, 86143654123,
name and branch of the bank of the Claims Tribunal 110002427,
in which the award amount is to be SBIN0010323, SBI,
deposited/transferred. (in terms of order dated Rohini Courts, Delhi
18.01.2018 of Hon'ble Delhi High Court in FAO
842/2003 Rajesh Tyagi vs Jaibir Singh.
JUDGMENT
1. The present claim proceedings have emanated from the Detailed Accident Report (hereinafter referred to as DAR) filed on 24.10.2011 with reference to FIR No.289/11 registered at PS Maurya Enclave in respect of commission of offences of causing hurt by rash and negligent driving of a motor vehicle on a public road punishable U/s 279/337 of Indian Penal Code, 1860 (hereinafter referred to as IPC) wherein subsequent charge sheet for the commission of offences of causing death not amounting to culpable homicide by rash and negligent driving punishable u/s 279/304A IPC against driver, namely, Gian Chand was also filed in respect of fatal injuries sustained by victim Deepu in a road traffic accident. The learned predecessor Court had vide order dated 24.10.2011 treated the DAR as a petition u/s 166(4) of the Motor Vehicles Act, 1988 (in short referred to as 'M.V. Act').
2. The brief facts of the case as discernible from the DAR as well as the documents of the legal heirs of the deceased (hereinafter referred to as the petitioners/ the claimants or the "LRs of the deceased) are that on 30.08.2011 , victim Deepu was travelling on his scooter bearing registration No.DL8SU7182 and at about 09:15 pm, upon reaching near left turn of Power House on Outer Ring Road, Pitam Pura, Delhi, a truck bearing registration No. HR12B5721 (hereinafter referred to as the 'offending vehicle') being driven by Gian Chand (hereinafter referred to as the driver of the offending vehicle/respondent no.1/R1) LRs of Deepu Vs. Gian Chand & Ors. Page 4 of38 LRs of Deepu Vs. Gian Chand & Ors. Page 5 of 38 at a very high speed and in a rash and negligent manner had hit the scooter of the victim, as a consequence of which, the victim had sustained serious injuries for treatment of which he had been removed to Dr. Baba Sahib Ambedkar Hospital(Dr. BSA Hospital), Rohini, where he was declared dead during course of treatment vide MLC No.8235/11 dated 30.08.2011.
2.1 The postmortem on the body of the deceased was conducted by Dr. J.V. Kiran Kumar, Sr. Resident, Department of Forensic Medicine, Dr. BSA Hospital, Rohini, Delhi vide Postmortem Report (PMR) No.406/2011 dated 31.08.2011 wherein the cause of death had been opined as hemorrhagic shock consequent to blunt force impact sustained by the pelvic region on the body of the deceased. It was further mentioned in the report of autopsy surgeon that all injuries detected on the body of the deceased were antemortem in nature, that is, had occurred immediately prior to his death and could have occurred in a road traffic accident as alleged.
3. R1/Gian Chand, who was the drivercumowner of the offending vehicle (hereinafter referred to as respondent No.1/R1) had not filed any written statement despite sufficient time being granted to him for filing of the same and he was accordingly proceeded against exparte vide order dated 20.11.2018.
3.1 Reliance General Insurance Company Limited, the insurer of the offending vehicle (hereinafter referred to as Respondent no. 2/R2) had filed written statementcumlegal offer to settle the matter by paying a sum of Rs.50,000/ to the petitioner. However, the said offer was not acceptable to the petitioners. It had been further claimed in the written statement of R3 that the mother of the deceased had remarried about twenty years prior to his death and as such, she was not dependent upon the deceased. It had been claimed in defence of R3 that R3 was living with his two major brothers who were married and were not dependent upon the income of the deceased.
LRs of Deepu Vs. Gian Chand & Ors. Page 5 of38 LRs of Deepu Vs. Gian Chand & Ors. Page 6 of 38
4. From the pleadings of the parties, the following issues were framed by the learned Predecessor Court vide order dated 20.11.2018: (1) Whether on 30.08.2011 at about 23:15 hours at Outer Ring Road, in front of Central Market, DBlock, Prashant Vihar, Delhi, one truck bearing registration No.HP1285721, which was being driven rashly and negligently by Gian Chand, hit the scooter bearing registration No.DL8SU7182 and caused the death of Deepu? OPP (2). Whether petitioners are entitled to compensation, if so, to what amount and from whom? OPP (3) Relief.
5. After the framing of issues, opportunities were given to all the parties to prove their respective versions of the case by leading evidence in support of the same. The petitioners/ LRs of the deceased had examined three witnesses in support of their version of the case. Smt. Munni Devi, mother of the deceased had been examined as PW1, Sh. Neeraj, younger brother of the deceased had been examined as PW2 whereas Sh. Phool Singh, step father of the deceased had been examined as PW3 by the petitioners. No other witness had been examined by the petitioners/the LRs of deceased.
6. A perusal of the Court record reveals that R1/driver cum owner had not adduced any evidence in his defence and had also failed to appear in the court on several dates of hearings, hence he had been proceeded against exparte vide order dated 20.11.2018. Also, R2/insurance company had also not led any evidence in support of its version of the case.
7. I have heard the final arguments addressed by Ms. Archana Singh, learned counsel for the petitioners and Sh. Sujit Jaiswal, learned counsel for R3/insurance company. None had appeared on behalf of R1(drivercumowner LRs of Deepu Vs. Gian Chand & Ors. Page 6 of38 LRs of Deepu Vs. Gian Chand & Ors. Page 7 of 38 of the offending vehicle) to address final arguments. My issuewise findings based on my appreciation of the evidence led by the parties in support of their respective versions of the case are reproduced herein below.
8. Issue wise findings are as under: ISSUES No. 1 (1) Whether on 30.08.2011 at about 23:15 hours at Outer Ring Road, in front of Central Market, DBlock, Prashant Vihar, Delhi, one truck bearing registration No.HP1285721, which was being driven rashly and negligently by Gian Chand, hit the scooter bearing registration No.DL8SU7182 and caused the death of Deepu? OPP The onus of proving this issue beyond preponderance of probabilities was upon the petitioners/ claimants.
8.1 The petitioners/ LRs of the deceased had examined three witnesses in support of their version of the case. Smt. Munni Devi, mother of the deceased had been examined as PW1, Sh. Neeraj, younger brother of the deceased had been examined as PW2 whereas Sh. Phool Singh, step father of the deceased had been examined as PW3 by the petitioners. No other witness had been examined by the petitioners/the LRs of deceased.
8.2 PW1 Smt. Munni Devi, mother of deceased Deepu deposed by way of affidavit Ex.PW1/A wherein she had stated that her son Deepu had died in a road traffic accident which had occurred on 30.08.2011 at about 9.42 p.m. on outer Ring Road in front of Central Market, DBlock, Prashant Vihar, Delhi had been caused by a truck bearing registration No.HP12B5721. She stated that her deceased son Deepu was unmarried at the time of the case accident and he had left behind two legal heirs including herself, that is, his mother and Sh. Neeraj, his younger disabled/handicapped brother whose right eye's vision was LRs of Deepu Vs. Gian Chand & Ors. Page 7 of38 LRs of Deepu Vs. Gian Chand & Ors. Page 8 of 38 almost nil and he was unable to see properly. She deposed that her previous husband Sh. Gore Lal had expired on 18.10.1985 leaving behind four children, namely, Sh. Pappu, Sh. Raju, Sh. Deepu and Sh. Neeraj and at the time of demise of her previous husband Sh. Gore Lal, her deceased son Deepu was aged about two years whereas her other children were between the age of 1 to 5 years. She stated that due to her poor financial condition, she had got remarried with Sh. Phool Singh. She further stated that at the time of case accident, she had been residing with her deceased son Deepu, Neeraj and her husband Sh. Phool Singh along with her other children at Sultan Puri, Delhi whereas her other two sons, namely, Pappu and Raju were married and were residing with their respective families at Village Dharampur Baba, Tehsil Ghatampur, District Kanpur, U.P. She deposed that at the time of case accident, her deceased son Deepu was 29 years old and his date of birth was 10.06.1982. She stated that at the time of occurrence of the case accident, she was aged about 50 years and her son Neeraj was aged about 25 years. She deposed that she herself, deceased Deepu, Pappu, Raju and Neeraj were permanent residents of Village Dharampur Baba, Tehsil Ghatampur, District Kanpur, U.P. and they were having joint agricultural land at their native village. She deposed that at the time of occurrence of the case accident, her deceased son Deepu was doing the job of manufacturing of frames of spectacles and he was earning about Rs.8,000/ to 10,000/ per month and had been contributing about Rs.6,000/ to Rs.8,000/ per month towards household expenses. She stated that her younger son Sh. Neeraj was doing nothing due to defect in his right eye and she along with Neeraj were totally dependent upon the income of her deceased son Deepu. She had relied upon the following documents in support of her testimony:
a) Photocopies of treatment papers of her son Neeraj Ex.PW1/1(colly) (4 sheets).
LRs of Deepu Vs. Gian Chand & Ors. Page 8 of38
LRs of Deepu Vs. Gian Chand & Ors. Page 9 of 38
b) Copy of death certificate of Sh. Gore Lal Ex.PW1/2.
c) Original certificate issued by Gram Padhan of Village, Dharampur,
PO Sham pur, District Kanpur, U.P. regarding second marriage of PW1 Munni Devi and regarding permanent residential address of Village Dharampur in respect of Munni Devi, her deceased son Deepu as well as of her other three sons Ex.PW1/3.
d) Photocopy of school certificate issued by Shri Nehru Vidya Peeth Inter College, Patara, Kanpur Nagar to prove the age of deceased Deepu Ex.PW1/4(OSR).
e) Photocopy of ration card of family members of PW1 Munni Devi to prove her age and age of her disabled son Neeraj Ex.PW1/5(OSR) (4 sheets).
f) Photocopy of Khatoni of agricultural land of herself and her four sons at Village Dharampur Ex.PW1/6(OSR).
8.3 In her crossexamination by Sh. Sujit Jaiswal, learned counsel for R2/insurance Co., PW1 stated that she had got remarried to Sh. Phool Singh after about 1½ years of the death of her earlier husband Sh. Gore Lal. She voluntarily stated that at the time of demise of her first husband Sh. Gore Lal, deceased Deepu was about two years of age. She deposed that immediately after her marriage with Sh. Phool Singh, they had shifted to Delhi along with her all her children and since then till the time of death of her deceased son Deepu, all of them were residing together in Delhi. On being confronted with document Ex.PW1/4, that is, school certificate of deceased issued from Kanpur, PW1 stated that deceased Deepu had never studied in Kanpur and had always resided with her. She denied the suggestion that deceased Deepu had studied in Kanpur and she had abandoned all her children after her second marriage.
LRs of Deepu Vs. Gian Chand & Ors. Page 9 of38 LRs of Deepu Vs. Gian Chand & Ors. Page 10 of 38 She admitted that in her ration card, name of deceased Deepu and names of her other children from her earlier marriage were not mentioned. She stated that Pooja, Komal and Sonal were her children out of her second marriage with Sh. Phool Singh. She admitted that there was a separate ration card of deceased Deepu Yadav with his younger brother, namely, Neeraj Singh. She voluntarily stated that Neeraj was still residing with her. She denied the suggestion that she had never resided in Delhi with the deceased as she had got her ration card issued from Kanpur in the year 2007. She further denied the suggestion that Certificate of Gram Pradhan Ex.PW1/3 was a forged and fabricated document procured by her to claim compensation. She admitted that the name of Village Panchayat Development Officer who had issued Certificate Ex.PW1/3 was not mentioned on the said certificate and she herself was also not aware about the name of the said officer. On being confronted with the certificate issued by Sh. Ashok Kumar, Pradhan of Gram Panchayat filed by the IO showing that she had left the deceased about 20 years ago and she had no connection with deceased Deepu, PW1 stated that she did not know who had issued the said certificate. She deposed that she had filed medical documents of Neeraj pertaining to the years 2000 and 2002 only. She denied the suggestion that the medical documents of Neeraj did not show any loss of vision of any of his eyes. She denied the suggestion that Neeraj was having his own income at the time of case accident and was not dependent upon the deceased. She expressed her inability to produce any document to show that deceased Deepu was doing the job of manufacturing frames of spectacles. She admitted that she did not have any document to show that the deceased was earning Rs.8,000/ to 10,000/ per month. She, however, denied the suggestion that deceased Deepu was neither working nor earning anything or that she was not dependent upon the deceased as she was living separately with her second husband who was maintaining her.
LRs of Deepu Vs. Gian Chand & Ors. Page 10 of38
LRs of Deepu Vs. Gian Chand & Ors. Page 11 of 38
8.4 PW2/Sh. Neeraj deposed by way of affidavit Ex.PW2/A wherein he stated
that deceased Deepu was his elder brother who had died in a road traffic accident which had been caused by a truck bearing registration No.HP12B5721 on 30.08.2011 at about 9.42 p.m. on Outer Ring Road, in front of Central Market, DBlock, Prashant Vihar, Delhi. He deposed that deceased Deepu was unmarried at the time of his death due to case accident and his deceased brother Deepu had left behind two legal heirs including himself(Neeraj) as his younger disabled/handicapped brother and his mother Smt. Munni Devi. He stated that he was unable to see properly from his right eye as its vision was almost nil. He deposed that his real father Sh. Gore Lal had expired on 18.10.1985 leaving behind four children, namely, Pappu, Raju, Deepu and Neeraj(himself) and at the time of death of his real father Sh. Gore Lal, his deceased elder brother Deepu was 2 years old whereas he himself and his other brothers were between 1 to 5 years old. He further deposed that due to their poor financial condition, his mother Smt. Munni Devi had remarried with Sh. Phool Singh so that she could get help in upbringing PW2 and his three other brothers and had started living with his(PW2's) step father Sh. Phool Singh and they were residing together at C1/15, Sultan Puri, Delhi. PW2 Neeraj stated that his two elder brothers, namely, Pappu and Raju were married and they were residing with their respective families at Village Dharampur Bamba, Tehsil Chatampur, District Kanpur, U.P. He had supported the version of PW1 in respect of age of deceased Deepu as well as the age of his mother Smt. Munni Devi at the time of accident. He further supported the testimony of PW1 regarding the income of deceased Deepu at the time of case accident. In support of his deposition, PW2 relied upon the photocopy of his Aadhar Card Ex.PW2/1 and other document already exhibited as Ex.PW1/2 to Ex.PW1/6 in the testimony of PW1.
8.5 In his crossexamination by Sh. Sujit Jaiswal, learned counsel for
LRs of Deepu Vs. Gian Chand & Ors. Page 11 of38
LRs of Deepu Vs. Gian Chand & Ors. Page 12 of 38
R2/Reliance General Insurance Co., PW2 deposed that he was not an eye witness to the case accident. He stated that he was not working at the time of recording of his deposition. He admitted that he had given his statement to the police Ex.PW2/R2. He expressed his inability to tell as to whether he had not stated in his statement given to the police that he was not working and that he was dependent on his deceased brother. He also stated that he did not know how to read and write and he had never joined any school. He deposed that his deceased brother had studied upto 8th standard and was two years elder to him. He denied the suggestion that he knew reading and writing. He further denied the suggestion that medical documents pertaining to his eye did not disclose that he was not capable of doing any work(job). He also denied the suggestion that at the time of death of his deceased brother, he was having his own income or that he was not dependent upon his deceased brother.
8.6 R1/driver cum owner had failed to appear in the court to crossexamine PW2 and as such the crossexamination of PW2 on behalf of R1/driver cum owner was treated as nil despite opportunity having been given to R1/driver cum owner to cross examine PW2.
8.7 PW3 Sh. Phool Singh deposed by way of his affidavit Ex.PW3/A wherein he had stated that he was an eye witness to the case accident. He deposed that he was the step father of deceased Deepu who was residing with him along with his mother. He stated that he used to do work of white wash in the area of Pitam Pura and in routine, Deepu used to come to take him to his house after the work hours. He deposed that on 30.08.2011, he was waiting after finishing his white wash work at the left turn near Power House at Pitam Pura on Outer Ring Road and at about 9.15 p.m. he had noticed that the scooter on which deceased Deepu was coming towards him had been hit by one truck bearing registration No.HR12B5721 being driven by its driver/R1 at a fast speed and in a rash and LRs of Deepu Vs. Gian Chand & Ors. Page 12 of38 LRs of Deepu Vs. Gian Chand & Ors. Page 13 of 38 negligent manner and the offending truck had dragged Deepu to some distance on the road upon which he had raised alarm and public persons present at the spot had stopped the truck driver. He further stated that he had taken Deepu to the hospital and from the hospital, he had gone to PS Sultan Puri to give information regarding the case accident. He had relied upon the following documents in support of his deposition:
a) Photocopy of his Aadhar Card Ex.PW3/1(OSR).
b) DAR filed by the IO Ex.PW3/2(colly).
8.8 In his crossexamination by Sh. Sujit Jaiswal, learned counsel for
R2/Reliance General Insurance Co., PW3 deposed that he had got married to mother of the deceased in or around 1990 and three children were born out of his wedlock with Munni Devi, that is, mother of the deceased. He stated that Smt. Munni Devi had four children out of her earlier marriage. He deposed that he had no document in his possession to show that deceased Deepu used to reside with him. He stated that he was the step father of deceased Deepu. He admitted that he had got his Aadhar card Ex.PW3/1 issued after the date of accident. He denied the suggestion that neither deceased used to reside with them nor the deceased used to give any household expenses to Smt. Munni Devi. He further denied the suggestion that Smt. Munni Devi or anybody else was not dependent upon deceased Deepu. He also denied the suggestion that Munni Devi was solely dependent upon him(PW3) being his wife. He admitted that the ration card filed on record contained the name of his wife Munni Devi and his own three children only. He admitted that the name of the deceased Deepu was mentioned in another ration card placed on record. He expressed his inability to recall the address where he had done work of whitewash on the date of accident, however, he voluntarily stated that it was near T.V. Tower, Pitam Pura, Delhi. He deposed that the offending truck bearing registration LRs of Deepu Vs. Gian Chand & Ors. Page 13 of38 LRs of Deepu Vs. Gian Chand & Ors. Page 14 of 38 No.HR12B5721 was coming from Madhuban Chowk side and was going towards Bypass and he was standing on the Ring Road on Prashant Vihar side which was at a distance of about 3040 steps from the spot of accident. He stated that the road on which the accident had occurred was a busy road. He further stated that the police officials had reached the spot within 1015 minutes after the accident and they had taken the deceased to Dr. BSA Hospital. He clarified that he had also accompanied the police officials to the hospital. He deposed that the police officials had inquired from him only once at PS Prashant Vihar. He further deposed that his statement was recorded by the police on the next morning following the day of accident. He denied the suggestion that he was not an eyewitness to the case accident or that he was deposing falsely to help his wife, Munni Devi in the present case.
8.9 R1/driver cum owner had failed to appear in the court to crossexamine PW3 and as such the crossexamination of PW3 on behalf of R1/driver cum owner was treated as nil despite opportunity having been given to R1/driver cum owner in this respect.
8.10 R1 was exparte and had not availed the opportunity to lead evidence in his defence. Besides, R2/Insurance company had failed to lead any evidence in support of its version of the case.
8.11 No contradictions or material discrepancies have appeared in the cross examination of PW3 to discredit his above said testimony which were capable of demolishing the case of the petitioners to the effect that the case accident had occurred due to rash and negligent driving of the offending vehicle by R1 and the death of victim Deepu had occasioned therefrom. PW3 had not been cross examined on behalf of R1/drivercumowner and hence, the testimony of PW3 in respect of rash and negligent driving of the offending vehicle by R1 has remained unrebutted and unchallenged. Even otherwise, PW3 Sh. Phool Singh is a LRs of Deepu Vs. Gian Chand & Ors. Page 14 of38 LRs of Deepu Vs. Gian Chand & Ors. Page 15 of 38 trustworthy witness who has withstood his crossexamination by learned counsel for the insurance company/R3. Therefore, through the testimony of PW3, it has been proved that the accident in question had occurred due to rash and negligent driving of the offending truck by R1 and thereby fatal injuries had been sustained by victim Deepu.
8.12 The postmortem on the body of the deceased was conducted by Dr. J.V. Kiran Kumar, Sr. Resident, Department of Forensic Medicine, Dr. BSA Hospital, Rohini, Delhi vide Postmortem Report (PMR) No.406/2011 dated 31.08.2011 wherein the cause of death had been opined as hemorrhagic shock consequent to blunt force impact sustained on the pelvis on the body of the deceased. It was further mentioned in the report of autopsy surgeon that all injuries detected on the body of the deceased were antemortem in nature, that is, had occurred immediately prior to his death and could have occurred in a road traffic accident as alleged.
8.13 The issue no. 1 is only to be proved by claimants beyond preponderance of probabilities as distinguished from beyond reasonable doubt. In view of above said discussion, criminal case record including charge sheet and testimony of PW2 Sh. Phool Singh, it has been proved beyond preponderance of probabilities that the case accident had been caused by R1 who was driving the offending vehicle/truck in a rash and negligent manner at the above said date, time and place, due to which the victim had fell down on the road and had sustained fatal injuries.
Issue no.1 is accordingly decided in favour of petitioners and against the respondents.
9. Issue No. (2) Whether petitioners are entitled to compensation, if so, to what amount and from whom? OPP LRs of Deepu Vs. Gian Chand & Ors. Page 15 of38 LRs of Deepu Vs. Gian Chand & Ors. Page 16 of 38 9.1 In view of my findings on issue no.1 regarding negligence of R1 resulting in the occurrence of the case accident, I am of the considered opinion that the petitioners/claimants are entitled to compensation in respect of demise of the victim Deepu in the above mentioned road traffic accident, I shall now examine the entire evidence including the documents of the petitioners/claimants for the purpose of arriving at a finding about the quantum of compensation to which the petitioners/claimants are entitled.
9.2 Petitioners have examined three witnesses in support of their version of the case. Smt. Munni Devi, mother of the deceased had been examined as PW1 and had proved the date of birth of deceased Deepu as 10.06.1992. He had further stated that deceased Deepu was engaged in business of manufacturing frames of spectacles for monthly emoluments to the tune of Rs.8,000/ to Rs.10,000/. She had, however, failed to produce any documentary evidence regarding the nature of job and income of the deceased. 9.3 Sh. Neeraj, younger brother of the deceased had been examined as PW2 and had made deposition regarding his financial dependency on the income of deceased on account of his physical disability emanating from loss of vision in one eye whereas Sh. Phool Singh, step father of the deceased had been examined as PW3 and had proved the manner of occurrence of the case accident. He had categorically stated that the accident in question had occurred due to rash and negligent driving of offending vehicle by R1. 9.4 PW3 Sh. Phool Singh had withstood his crossexamination by the learned defence counsel for R3 and had reaffirmed during his crossexamination that the offending truck coming from the side of Madhuban Chowk was being driven in a rash and negligent manner at the time of occurrence of the case accident. 9.5 Although mother of the deceased had made a categoric deposition regarding the nature of employment of the deceased and his monthly income.
LRs of Deepu Vs. Gian Chand & Ors. Page 16 of38 LRs of Deepu Vs. Gian Chand & Ors. Page 17 of 38 However, mother of the deceased had admitted in her crossexamination that she was not in possession of any documentary evidence to establish that the deceased was, in fact, engaged in the job of manufacturing frames of spectacles and was earning Rs.8,000/ to 10,000/ per month from the said job. Besides, she has not filed any income proof of her deceased son including ITR or statement of bank account of her son or proof of monthly expenditure of her son in the form of monthly electricity bills or water bills or grocery bills, if any. However, as per the scholar registercumtransfer certificate form issued by Shri Nehru Vidyapeeth Inter College, Kanpur, the deceased had passed class 8 th examination before taking transfer certificate on 30.06.1995. In such circumstances, the income of the deceased has to be determined in accordance with the minimum wages payable to a nonmatriculate in the National Capital Territory of Delhi as on the date of occurrence of the case accident, that is, on 30.08.2011 which comes to Rs. 7,098/.
9.6 As per the scholar registercumtransfer certificate form issued by Shri Nehru Vidyapeeth Inter College, Kanpur, the date of birth of the deceased Deepu was mentioned as 10.06.1982. Accordingly, the age of the deceased on the date of the accident, that is, on 30.08.2011 is determined to be 29 years 02 months and 20 days.
10. Addition of future prospects If addition in income towards future prospects is to be made 10.1 In this regard, reference should be made to the Constitutional Bench Judgement of Hon'ble Supreme Court of India passed in case of National Insurance Company Limited vs. Pranay Sethi and Ors, SLP (Civil) No. 25590 of 2014, date of decision 31.10.2017.
10.2 In the said judgment of Pranay Sethi (Supra), the Hon'ble Apex Court LRs of Deepu Vs. Gian Chand & Ors. Page 17 of38 LRs of Deepu Vs. Gian Chand & Ors. Page 18 of 38 inter alia held as under:
61. In view of the aforesaid analysis, we proceed to record our conclusions:
(i).........................................................................................
(ii) .....................................................................................
(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 selfemployed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.
(v) For the 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 LRs of Deepu Vs. Gian Chand & Ors. Page 18 of38 LRs of Deepu Vs. Gian Chand & Ors. Page 19 of 38 multiplier.
(viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and future 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. "
(.... Emphasis Supplied) 10.3 In the case in hand, the deceased was selfemployed and in terms of above said judgment, while determining his income for computing compensation, future prospects have to be added to fall within the ambit and sweep of just compensation under Section 168 of M.V. Act.
10.4 In the present case, as discussed above, the deceased was a self employed/salaried person aged about 29 years 02 months and 20 days at the time of his death. In view of paragraph no. 61 (iv) of above said judgment in Pranay Sethi (Supra), the deceased would be entitled to addition of 40% as future prospects to his established income as he was above the age of 20 years but less than 40 years of age at the time of his death.
10.5 The monthly income of the deceased is thus calculated as Rs.9,937.2/ (monthly income of Rs.7,098/ + 40% of monthly income i.e Rs.2,839.2/ = Rs.9,937.2/).
11. Deduction towards personal and living expenses of the deceased:
11.1 Claimants are the mother and younger brother of the deceased. PW1/the mother of the deceased and PW2/younger brother of the deceased have categorically stated in their examinationinchief that they were financially dependent upon the income of the deceased. However, it is the defence of the LRs of Deepu Vs. Gian Chand & Ors. Page 19 of38 LRs of Deepu Vs. Gian Chand & Ors. Page 20 of 38 insurance company that mother of the deceased had solemnised second marriage with PW3 Phool Singh after the demise of father of the deceased in the year 1985 itself and was, therefore, financially dependent upon her second husband Phool Singh instead of deceased Deepu who was one of the four children born out of her first wedlock with Sh. Gore Lal. Moreover, it is other defence of the insurance company that younger brother of the deceased, namely, Neeraj was major at the time of occurrence of the case accident and therefore, he cannot be considered to be dependent upon the deceased. It has, thus, been prayed by learned counsel for the insurance company that LRs of deceased Deepu are not entitled to any compensation towards loss of financial dependency and they may merely be granted compensation towards loss of estate of the deceased.
11.2 I have considered the above argument advanced by learned counsel for insurance company/R3 in the light of evidence led by the parties as well as in the light of law of precedents. In this context, it has been held by Hon'ble Apex Court and Hon'ble High Court of Delhi in a catena of judgments that although parents of a bachelor deceased may not be dependent on the income of the bachelor at the time of his demise in a road traffic accident, however, with advancing age, they were likely to become financially as well as emotionally dependent on their child.
11.3 Similar observations were made by Hon'ble High Court of Delhi in case of Indrawati & Anr. Vs. Ranbir Singh & Ors. MAC. APP No.623/2019 decided on 08.01.2021 wherein the Hon'ble High Court of Delhi had observed that the parents of a deceased/victim of road traffic accident must be considered as dependents on their deceased child even if the parents were not actually dependent on the deceased child at the time of occurrence of the accident in question because after reaching a certain age, the parents of a deceased victim LRs of Deepu Vs. Gian Chand & Ors. Page 20 of38 LRs of Deepu Vs. Gian Chand & Ors. Page 21 of 38 of road traffic accident were likely to become emotionally as well as financially dependent upon their child due to their old age and loss of earning capacity.
Observations made in paras 12, 20 and 23 of the judgement are noteworthy in this context and are reproduced herein below: "12. This Court is of the view that the parents of the deceased are considered in law as dependent on their children, considering that the children are bound to support their parents in their old age, when the parents would be unable to maintain themselves and the law imposes a responsibility on the children to maintain their parents. Even if the parents are not dependent on their children at the time of the accident, they will certainly be dependent, both financially and emotionally, upon their children at the later stage of their life, as the children were dependent upon their parents in their initial years. It would therefore be unfair as well as inequitable to deny compensation for loss of dependency to a parent, who may not be dependent on his/her child at the time of accident per se but would become dependent at his/her later age.
20. In view of the law well settled by the Supreme Court in the aforesaid judgments, this Court holds that the parents of the deceased child are considered as dependents for computation of compensation.
The principles laid down in Keith Rowe (supra) and Dinesh Adhlak v. Pritam Singh, ILR (2010) 5 Del 463, would not apply to the claim for compensation by the parents in respect of their child, as it is in the present case. The principles relating to the loss to the estate referred to in Keith Rowe (supra) and Dinesh Adhlak (supra) would also not apply in respect of the claim of a spouse for compensation in respect of death of his/her spouse, as well as children's claim for compensation in respect of death of their parents. In that view of the matter, the principles relating to the loss to the estate shall apply only to claimants other LRs of Deepu Vs. Gian Chand & Ors. Page 21 of38 LRs of Deepu Vs. Gian Chand & Ors. Page 22 of 38 than parents, children and spouse.
23. Taking the income of the deceased as Rs.4,131/ per month, adding 40% towards future prospects, deducting 50% towards personal expenses and applying the multiplier of 18, the loss of dependency is computed as Rs.6,24,607.20. The Claims Tribunal has awarded Rs.40,000/ towards loss of love and affection and Rs. 15,000/ towards funeral expenses which is upheld. The total compensation is computed as Rs.6,80,000/ (Rs.6,79,607.20 rounded off)."
11.4 In the case of National Insurance Company Ltd. vs. Birender, Civil Appeal No.242243 of 2020, date of judgment 13.01.2020 the Hon'ble Apex Court had granted compensation to the major sons of the deceased on the basis of loss of dependency with 9% interest from the date of filing of the claim petition till payment while observing that all the legal representative of a deceased/victim of road traffic accident had a right to apply for compensation and it would be duty of the tribunal to consider their application irrespective of the fact as to whether they were fully dependent on the income of the deceased at the relevant time or not. Relevant extract of the observations made in para No.15 of the judgment is reproduced herein below: "15. It is thus settled by now that the legal representatives of the deceased have a right to apply for compensation. Having said that, it must necessarily follow that even the major married and earning sons of the deceased being legal representatives have a right to apply for compensation and it would be the bounden duty of the Tribunal to consider the application irrespective of the fact whether the concerned legal representative was fully dependant on the deceased and not to limit the claim towards conventional heads only. The evidence on record in the present case would suggest that the claimants were working as agricultural labourers on contract basis and were earning meagre income between Rs.1,00,000/ and Rs.1,50,000/ per annum. In that sense, they LRs of Deepu Vs. Gian Chand & Ors. Page 22 of38 LRs of Deepu Vs. Gian Chand & Ors. Page 23 of 38 were largely dependant on the earning of their mother and in fact, were staying with her, who met with an accident at the young age of 48 years."
11.5 In the light of aforecited observations made by Hon'ble Supreme Court of India in the case of National Insurance Company Ltd. vs. Birender (supra), it can be safely concluded that it is settled law that all the legal representatives of a deceased victim of a road traffic accident have a right to apply for compensation in respect of loss of dependency on account of demise of the deceased in a road traffic accident and it is a duty of the tribunal to consider their claim irrespective of the fact that they were not fully dependent on the income of the deceased. However, the fact that the legal representatives of the deceased were not fully dependent on his income is of great value in determining the quantum of income which the deceased was likely to spend on his personal and living expenses and as well as for determining the share of his income which he would contribute towards his household expenses. In this context, it has been time and again reiterated by Hon'ble Apex Court and various High Court that where the children/legal heirs of the deceased were major and were not totally financially dependent on the deceased then the deceased was likely to save major portion of his income for his personal expenses and was likely to contribute much less portion of his income towards household expenses.
11.6 Similar observations were made iby Hon'ble Apex Court in the case of National Insurance Company vs Meghji Naran Soratiya & Ors CIVIL APPEAL No. 1171 OF 2002 decided on 26 February, 2009, wherein while dealing with the matter pertaining to demise of 58 years old mason whose income had been assessed at Rs. 27,000/ per annum, the Hon'ble Apex Court had observed that sons and daughtersinlaw of the deceased were major and therefore, the deceased was likely to utilise his 50% of income towards personal and living expenses instead of only 1/3. The relevant extracts of observations LRs of Deepu Vs. Gian Chand & Ors. Page 23 of38 LRs of Deepu Vs. Gian Chand & Ors. Page 24 of 38 made in paras Nos. 11 and 12 of the judgement passed in this case are noteworthy in this context and are reproduced herein below: "11. The claim related to the death of a mason aged 58 years in a motor accident which occurred in the year 1991. His son and daughterinlaw were the claimants and claimed a compensation of Rs. 3 lakhs. The Tribunal after considering the evidence, held that the deceased was aged 55 to 58 years, that his income was Rs. 2,250/ per month and that he was contributing Rs.1500/ per month to the family. It however restricted the annual loss of dependency to Rs.15,000/ instead of Rs.18000/ and by applying a multiplier of 10, arrived at the loss of dependency as Rs. 1,50,000/. It awarded Rs. 15,000/ towards loss of estate, Rs.
5,000/ for funeral expenses, Rs.5,000/ towards medicines/treatment (as the deceased underwent treatment for a short period in a hospital before death). Thus it determined the compensation payable as Rs. 1,75,000/ and awarded the same with interest @ 15% per annum from the date of petition.
12. The learned counsel for the appellant submitted that when there was no clear and conclusive evidence that the married son and daughterinlaw were dependent on the deceased, the Tribunal erred in restricting the deduction towards the living/personal expenses of the deceased to only onethird. He also submitted that award of Rs. 15,000/ towards loss of estate was excessive. There is some merit in the said contentions. We will therefore reassess the compensation. The Tribunal found that the income of the deceased was Rs. 2,250/ per month or Rs.27,000/ per annum. There is no serious challenge to this finding. On the facts and circumstances of the case, 50% should have been deducted towards the personal and living expenses of the deceased and not onethird. Thus, the contribution to the family (or the saving by the deceased even assuming that the claimants were fully dependant) would have been Rs. 13,500/ per annum. There is nothing wrong in the multiplier applied (that is 10) as it is in consonance with the principles laid down in General Manager, Kerala State Road Transport LRs of Deepu Vs. Gian Chand & Ors. Page 24 of38 LRs of Deepu Vs. Gian Chand & Ors. Page 25 of 38 Corpn. v. Susamma Thomas [1994 (2) SCC 176] and U.P. State Road Transport Corpn. v. Trilok Chandra [1996 (4) SCC 362]. Therefore, the total loss of dependency would be Rs. 1,35,000/. By adding Rs.5,000/ each under the heads of loss of estate, funeral expenses and cost of treatment, the total compensation is determined as Rs. 1,50,000/." 11.7 Also, in the context of the share of income of the deceased which he would have used towards his personal and living expenses, it has been categorically observed by Hon'ble Apex Court that a bachelor victim of a road traffic accident was likely to spend half of his income on his personal and living expenses and would contribute remaining half towards his household expenses. In this context, in the case of Sarla Verma Vs. DTC (2009)6 SCC 121, the Hon'ble Apex Court had observed that when a bachelor expires in a road traffic accident, his mother would be entitled to compensation regarding loss of dependency even if the father of the deceased bachelor was gainfully employed as on the date of occurrence of the alleged accident and it shall be presumed that the bachelor would spent 50% of his income on his personal needs and would contribute the remaining 50% to his mother and her household needs. The relevant extract of the observations made by the Hon'ble Apex Court in para 15 of the judgment is noteworthy in this context and is reproduced hereunder: "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 LRs of Deepu Vs. Gian Chand & Ors. Page 25 of38 LRs of Deepu Vs. Gian Chand & Ors. Page 26 of 38 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 nonearning sisters or brothers, his personal and living expenses may be restricted to onethird and contribution to the family will be taken as twothird."
11.8 Applying the ratio of above cited observations made by Hon'ble Apex Court in the cases of Sarla Verma (Supra); Indrawati and Anr. (Supra); National Insurance Company Ltd. vs. Birender (supra) and National Insurance Company vs Meghji Naran Soratiya & Ors(supra), it can be safely concluded that even if one of the parents of the deceased/victim of the road traffic accident were gainfully employed at the time of demise of the victim, then also, in advanced stage of their life the parents of the deceased were likely to become financially as well as emotionally dependent upon the deceased, and therefore, the parents of the deceased are also entitled to claim compensation as dependents upon the deceased under Motor Vehicles Act. Moreover, any other other legal representative of the deceased can also seek claim for loss of financial dependency on account of demise of the deceased in a road traffic accident and the claim of such legal representative has to be scrutinized by the Court depending upon the facts and circumstances of the case. 11.9 In the present case as well, the step father of the deceased was gainfully employed as a whitewash worker and the mother of the deceased was a home maker, who was not financially independent but was to a large extent depending upon the income of her second husband Phool Singh who was the LRs of Deepu Vs. Gian Chand & Ors. Page 26 of38 LRs of Deepu Vs. Gian Chand & Ors. Page 27 of 38 step father of the deceased. However, in the advanced age, even the step father of the deceased was likely to become financially as well as emotionally dependent upon his children. Consequently, mother of the deceased would also become financially dependent upon her children including deceased Deepu. Also, the real younger brother of the deceased has been arrayed as one of the dependents of the deceased on account of his physical disability emanating from lack of vision in one eye due corneal opacity. Treatment record of Neeraj Ex.PW1/1 prima facie reveals that Neeraj was, in fact, under regular treatment for corneal opacity and had undergone Tarsorrhaphy at Guru Nanak Eye Centre(GNEC), New Delhi. Besides, photographs of Neeraj showing substantially closed position of his right eye is also on record which prima facie establishes that Neeraj, brother of victim Deepu was facing challenge in respect of vision in one eye due to some corneal opacity. However, no evidence regarding the extent of his disability has been led by the petitioners by placing on record any disability certificate of Neeraj. Also, the other eye of Neeraj was not having any defect or disease, and therefore, as such, Neeraj cannot be considered entirely dependent upon his deceased brother for survival. Nevertheless, his vision deficient in his right eye, can be considered to have made him partially dependent upon his deceased brother Deepu.
11.10 In the light of my foregoing discussion, Smt. Munni Devi, mother and younger brother of the deceased, namely, Neeraj are entitled to compensation from this Tribunal in respect of demise of deceased in a road traffic accident. However, the deduction towards personal and living expenses of the deceased should be taken as 50% as per the dictum of Hon'ble Apex Court in the case of Smt. Sarla Verma and Ors. vs. Delhi Transport Corporation and Anr., Civil Appeal No.3483 of 2008, date of judgment 15.04.2009 as upheld in the case of Pranay Sethi (supra).
LRs of Deepu Vs. Gian Chand & Ors. Page 27 of38
LRs of Deepu Vs. Gian Chand & Ors. Page 28 of 38
12. Selection of multiplier:
12.1 As discussed above, the age of the deceased was about 29 years 02 months and 20 days at the time of his death. In view of paragraph no. 61(vii) of the judgment in the case of Pranay Sethi (Supra), the age of deceased should be the basis for applying the multiplier. Accordingly, the relevant multiplier would be "17" as per judgment in case of Sarla Verma (Supra) which has been upheld in paragraph no. 61 (vi) in case of Pranay Sethi (Supra).
13. Loss of financial dependency 13.1 In the light of aforesaid facts, loss of financial dependency of the petitioners comes to Rs.10,13,594.4/ [i.e. Rs.9,937.2/ (per month income of the deceased) X12 X17 (multiplier) X 1/2 (dependency after deducting 1/2 of income towards personal and living expenses)].
14. Compensation under nonpecuniary heads/conventional heads:
14.1 In view of the judgment of Constitution Bench of Hon'ble Apex Court in case of Pranay Sethi (Supra), as held in paragraph number 61 (viii) of the said judgment, the petitioners would be entitled to Rs. 15,000/ towards loss to the estate of the deceased and Rs. 15,000/ towards funeral expenses.
15. Consortium {Spousal Consortium/Parental Consortium/Filial Consortium}
15.1 The deceased was unmarried and the petitioners/claimants are his parents. It is now a settled law in terms of Judgment of Hon'ble Supreme Court of India, in case of Magma General Insurance Co. Ltd vs Nanu Ram and Ors, Civil Appeal No. 9581 of 2018, date of decision 18.09.2018: 2018(8) SCJ 338:2018 SCC Online SC 1546 and the judgment of Hon'ble Delhi High Court in case of Uttrakhand Transport Corporation Vs. Jyoti Sardana, LRs of Deepu Vs. Gian Chand & Ors. Page 28 of38 LRs of Deepu Vs. Gian Chand & Ors. Page 29 of 38 MAC.APP.920/2017, date of decision 03.04.2019 that the compensation under the head of consortium is required to be awarded to all the claimants to the tune of Rs. 40,000/ each. In the present case, there were two legal heirs of the deceased at the time of his demise who were the mother and father of the deceased, hence, Rs. 80,000/ (Rs. 40,000/ x 2) is being granted under the said head. My views in this regard are also substantiated by the latest judgments of Hon'ble High Court of Delhi in cases titled as United India Ins. Co. Ltd. Vs Manorama Aggarawal and Ors., MAC.APP. 250/2015, decided on 09.01.2020 and Om Prakash and Ors vs Ved Prakash and Anr, MAC.APP 114/2019 date of decision 28.01.2020. My views are also substantiated by the latest judgments of Hon'ble Supreme Court of India in cases titled as The New India Assurance Company Limited Vs. Smt. Somwati and Ors., Civil Appeal Nos. 30933099 of 2020, decided on 07.09.2020 and United India Insurance Company Ltd. Vs. Satinder Kaur alias Satvinder Kaur and Ors., (2020) SCC Online 410.
16. LOSS OF LOVE and AFFECTION 16.1 The Hon'ble Supreme Court of India in the latest case of The New India Assurance Company Limited Vs. Smt. Somwati and Ors., Civil Appeal Nos. 30933099 of 2020, decided on 07.09.2020 after referring to its another decision of threejudge bench in case titled as United India Insurance Company Ltd. Vs. Satinder Kaur alias Satvinder Kaur and Ors., (2020) SCC Online 410 inter alia held as follows :
"34. The ThreeJudge Bench in the above case approved the comprehensive interpretation given to the expression 'consortium' to include spousal consortium, parental consortium as well as filial consortium. Three Judge Bench however further laid down that 'loss of love and affection' is comprehended in 'loss of consortium', hence, there is no justification to award compensation LRs of Deepu Vs. Gian Chand & Ors. Page 29 of38 LRs of Deepu Vs. Gian Chand & Ors. Page 30 of 38 towards 'loss of love and affection' as a separate head.
35. The Constitution Bench in Pranay Sethi has also not under conventional head included any compensation towards 'loss of love and affection' which have been now further reiterated by threeJudge Bench in United India Insurance Company Ltd. (supra). It is thus now authoritatively well settled that no compensation can be awarded under the head 'loss of love and affection'. ................................................................................... ................................................................................... ...................................................................................
47. In result, all the appeals are partly allowed. The award of compensation under the conventional head 'loss of love and affection' is set aside........................"
16.2 In view of the abovesaid discussion and the latest judgments of Hon'ble Supreme Court of India in the cases of The New India Assurance Company Limited Vs. Smt. Somwati and Ors., Civil Appeal Nos. 30933099 of 2020, decided on 07.09.2020 and United India Insurance Company Ltd. Vs. Satinder Kaur alias Satvinder Kaur and Ors., (2020) SCC Online 410, no amount of compensation can be awarded under the said head of 'loss of love and affection'. Hence, no amount is being granted under the said head.
17. Petitioners/claimants are accordingly entitled to compensation computed as under:
Loss of financial dependency Rs. 10,13,594.4/
Loss of Estate Rs. 15,000/
Funeral Expenses Rs. 15,000/
Loss of Consortium Rs. 80,000/
Loss of Love and Affection Nil.
Total Rs. 11,23,594.4/
________________
[Rounded off to Rs. 11,23,595/]
(Rupees Eleven Lacs Twenty Three Thousand Five Hundred LRs of Deepu Vs. Gian Chand & Ors. Page 30 of38 LRs of Deepu Vs. Gian Chand & Ors. Page 31 of 38 Ninety Five only).
17.1 In respect of entitlement of the petitioner to interest on the awarded amount, it is noteworthy that the Hon'ble Apex Court had in the case of Municipal Corporation of Delhi vs. Association of Victims of Uphaar Tragedy, 2012 ACJ 48 (SC) had observed that the victims of Uphaar Tragedy be awarded compensation with interest @ 9% per annum. The present matter is pending trial since 24.10.2011 and the rate of interest of fixed deposits in Nationalized banks has fluctuated/dropped several times during the pendency of the present proceedings. Therefore, in the interest of justice, in the present case, this court is of the opinion that the claimant/petitioner is entitled to interest at the prevailing bank rate of 7% per annum from the date of filing of DAR/petition, that is, with effect from 24.10.2011 till realisation of the compensation amount.
17.2 The amount of interim award, if any, shall however be deducted from the above amount, if the same has already been paid to the petitioners.
18. Liability 18.1 In the case in hand, the Reliance General Insurance Company Limited/R3 has not been able to show anything on record to the effect that R1 who was the driver of the offending vehicle was not having any valid driving licence to drive the offending vehicle. As per settled law, since the offending vehicle was duly insured with the insurance company/R3, hence, R3 is liable to pay the entire compensation amount to the petitioners as per law.
18.2. Accordingly, in the case in hand, in terms of order dated 16.05.2017 of Hon'ble High Court by Hon'ble Mr. Justice J.R. Midha in case of Rajesh Tyagi Vs. Jaibir Singh and Ors., Reliance General Insurance co/R3 is directed to deposit the awarded amount of Rs.11,23,595/ within 30 days from today within the jurisdiction of this Tribunal, that is, State Bank of India, Rohini Courts LRs of Deepu Vs. Gian Chand & Ors. Page 31 of38 LRs of Deepu Vs. Gian Chand & Ors. Page 32 of 38 Branch, Delhi along with interest at the rate of 7% per annum from the date of filing of the petition till notice of deposition of the awarded amount to be given by R3 to the petitioners and his advocates and to show or deposit the receipt of the acknowledgement with the Nazir as per rules. R3 is further directed to deposit the awarded amount in the above said bank by means of cheque drawn in the name of above said bank along with the name of the claimants mentioned therein. The said bank is further directed to keep the said amount in fixed deposit in its own name till the claimants approach the bank for disbursement, so that the awarded amount starts earning interest from the date of clearance of the cheque.
APPORTIONMENT
19. Joint statement of petitioners in terms of clause 29 MCTAP was recorded on 17.09.2021 regarding their savings bank a/c with no loan, cheque book and ATM/debit card. I have heard the petitioners and learned counsel for the petitioners/claimants regarding financial needs of the petitioners and in view of the judgment in the case of General Manager, Kerala State Road Transport Corporation Vs. Susamma Thomas and Others, 1994 (2) SC, 1631, for appropriate investments to safeguard the amount from being frittered away by the beneficiaries owing to their ignorance, illiteracy and being susceptible to exploitation, following arrangements are hereby ordered: 19.1 It is deemed appropriate by this court after hearing learned counsels for all parties that maximum amount of compensation be kept in FDRs and only a very small amount be released to the claimants. Keeping in view the facts and circumstances of the case, the statements made by the petitioners, it is hereby directed that on realization of the entire award amount, an amount of Rs. 7,23,595/ be given to Smt. Munni Devi, mother of the deceased and the remaining amount of Rs. 4,00,000/ be given to Sh. Neeraj, brother of the LRs of Deepu Vs. Gian Chand & Ors. Page 32 of38 LRs of Deepu Vs. Gian Chand & Ors. Page 33 of 38 deceased. From the share of Smt. Munni Devi, an amount of Rs.70,000/ be released to her in her A/c no.59165694583 maintained in the name of Smt. Munni Devi with Allahabad Bank, Village Mongol Pur Kalan Branch, Delhi, that is, the branch near her place of residence (as mentioned in statement recorded under clause 29 MCTAP) and remaining amount be kept in 36 FDRs of equal amount for a period of one month to 36 months respectively with cumulative interest without the facility of advance, loan and premature withdrawal without the prior permission of the Tribunal. Out of the share of Sh. Neeraj, an amount of Rs.40,000/ be released to him in his A/c no. 59178124302 maintained in the name of Sh. Neeraj, with Allahabad Bank, Village Mongol Pur Kalan Branch, Delhi, that is, the branch near his place of residence (as mentioned in statement recorded under clause 29 MCTAP) and remaining amount be kept in 30 FDRs of equal amount for a period of one month to 30 months respectively with cumulative interest without the facility of advance, loan and premature withdrawal without the prior permission of the Tribunal.
19.2 It shall be subject to the following further conditions and directions in terms of order dated 07.12.2018 of Hon'ble Mr. Justice J.R. Midha in case of Rajesh Tyagi vs Jaibir Singh, FAO 842/2003 with respect to 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 victim i.e. the saving bank account(s) of the claimant(s) shall be individual savings account(s) and not a joint account(s).
(b) The original fixed deposit shall be retained by the bank in safe custody. However, the statement containing FDR number, FDR amount, date of maturity and maturity amount shall be furnished by bank to the claimant(s).
(c) The monthly interest be credited by Electronic Clearing System (ECS) in LRs of Deepu Vs. Gian Chand & Ors. Page 33 of38 LRs of Deepu Vs. Gian Chand & Ors. Page 34 of 38 the savings bank account of the claimant/(s) near the place of their residence.
(d) The maturity amount of the FDR(s) be credited by Electronic Clearing System (ECS) in the saving bank account of the claimant(s) near the place of their residence i.e. above said a/c.
(e) No loan, advance or withdrawal or premature discharge be allowed on the fixed deposits without permission of the court.
(f) The concerned Bank shall not to issue any cheque book and/or debit card to claimant(s). However, in case the debit card and/or cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount. The bank shall debit card(s) freeze the account of the claimant(s) so that no debit card be issued in respect of the account of the claimant(s) from any other branch of the bank.
(g) The bank shall make an endorsement on the passbook of the claimant(s) to the effect, that no cheque book and/or debit card have been issued and shall not be issued without the permission of the court and claimant(s) shall produce the passbook with the necessary endorsement before the court on the next date fixed for compliance.
(h) It is clarified that the endorsement made by the bank along with the duly signed and stamped by the bank official on the pass book(s) of the claimant(s) is sufficient compliance of clause (g) above.
20. Relief 20.1 As discussed above, R3 is directed to deposit the award amount of Rs.11,23,595/ with interest @ 7% per annum from the date of filing of DAR/petition i.e. 24.10.2011 till realization within the jurisdiction of this Tribunal i.e. SBI, Rohini Court Branch, Delhi within 30 days from today under intimation of LRs of Deepu Vs. Gian Chand & Ors. Page 34 of38 LRs of Deepu Vs. Gian Chand & Ors. Page 35 of 38 deposition of the awarded amount to be given by R3 to the petitioners and their advocate failing which the R3 shall be liable to pay interest @ 9% per annum from the period of delay beyond 30 days.
20.2 R3 is also directed to place on record the proof of deposit of the award amount, proof of delivery of notice in respect of deposit of the award amount in the above said bank to the claimants and complete details in respect of calculations of interest etc in the court within 30 days from today. 20.3 A copy of this judgment/award be sent to respondent no.3 for compliance within the granted time.
20.4 Nazir is directed to place a report on record in the event of non receipt/deposit of the compensation amount within the granted time.
In terms of directions contained in the order dated 07.12.2018 and subsequent order dated 22.02.2019 of Hon'ble Mr. Justice J.R. Midha in the case of Rajesh Tyagi and Ors vs Jaibir Singh and Ors., FAO 842/2003, the copy of the award be also sent by the Ahlmad of the court to Mr. Rajan Singh, Assistant General Manager, State Bank of India (as per the list of nodal officers of 21 banks of Indian Bank's Association as circulated to the Motor Accident Claims Tribunal vide above mentioned order dated 22.02.2019 of Hon'ble Delhi High Court) who is the Nodal Officer with contact details (02222741336/9414048606) {other detailsPersonal Banking Business Unit (LIMA) 13th Floor, State Bank Bhawan, Madame Cama Road, Nariman Point, Mumbai400021} through email ([email protected]) through the computer branch of Rohini Courts, Delhi. Ahlmad of the court is directed to take immediate steps in that regard.
20.5 A copy of this award be forwarded to the concerned Metropolitan Magistrate and DLSA in terms of the orders passed by the Hon'ble High Court in FAO 842/2003 Rajesh Tyagi Vs. Jaibir Singh and Ors.
LRs of Deepu Vs. Gian Chand & Ors. Page 35 of38
LRs of Deepu Vs. Gian Chand & Ors. Page 36 of 38
vide order dated 12.12.2014.
In view of the directions contained in order 10dated 18.01.2018 of Hon'ble Mr. Justice J.R. Midha in FAO no. 842/2003 titled as Rajesh Tyagi vs Jaibir Singh, joint statement of petitioners was also recorded on 17.09.2021 wherein they had stated that they were entitled to exemption from deduction of TDS and that they would submit form 15G to insurance co. so that no TDS is deducted.
21. Form IVA which has been duly filled in has also been attached herewith. File be consigned to record room as per rules after compliance of necessary legal formalities. Copy of order be given to parties for necessary compliance as per rules.
Announced in open court (JASJEET KAUR)
on 27th August, 2022 PO MACT N/W
Rohini Courts, Delhi.
LRs of Deepu Vs. Gian Chand & Ors. Page 36 of38
LRs of Deepu Vs. Gian Chand & Ors. Page 37 of 38
FORM - IV A
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN DEATH CASES TO BE INCORPORATED IN THE AWARD
1. Date of accident : 30.08.2011
2. Name of deceased: Sh. Deepu
3. Age of the deceased: About 29 years 02 months and 20 days at the time of accident.
4. Occupation of the deceased: Self employed.
5. Income of the deceased: Rs.7,098/ per month(minimum wages)
6. Name, age and relationship of legal representatives of deceased:
S.No. Name Age Relation
(i) Smt. Munni Devi 71 Years Mother
(ii) Sh. Neeraj 35 Years Father
Computation of Compensation
S.No. Heads Awarded by the Claims
Tribunal
7. Income of the deceased (A) Rs. 7,098/ (as per monthly
wages)
8. AddFuture Prospects (B) 40% = Rs. 2,839.2/
9. LessPersonal expenses of the 1/2
deceased (C )
10. Monthly loss of dependency Rs.4,968.6/
{ (A+B) - C =D}
11. Annual loss of dependency (Dx12) Rs. 59,623.2/
12. Multiplier (E) 17
13. Total loss of dependency (Dx12xE = Rs. 10,13,594.4/ F)
14. Medical Expenses (G) Nil
15. Compensation for loss of love and Nil affection (H)
16. Compensation for loss of consortium Rs. 80,000/ (40,000x2) LRs of Deepu Vs. Gian Chand & Ors. Page 37 of38 LRs of Deepu Vs. Gian Chand & Ors. Page 38 of 38 (I)
17. Compensation for loss of estate (J) Rs. 15,000/
18. Compensation towards funeral Rs. 15,000/ expenses (K)
19. TOTAL COMPENSATION Rs.11,23,594.4/ (F+G+H+I+J+K =L)
20. RATE OF INTEREST AWARDED 7% (78,651.60/) 21 Interest amount up to the date of Rs. 8,52,714.41/ award (M)
22. Total amount including interest (L+M) Rs. 19,76,308.81/
23. Award amount released Rs. 1,10,000/
24. Award amount kept in FDRs Rs. 18,66,308.81/(Rs.
18,66,309/ after rounding
of).
25. Mode of disbursement of the award As per award and in terms of amount to the claimant (s) (Clause 29) clause 29 of MCTAP.
26. Next date for compliance of the award. 27.09.2022.
(Clause 31)
Announced in open court (JASJEET KAUR)
on 27th August, 2022 PO MACT N/W
Rohini Courts, Delhi.
LRs of Deepu Vs. Gian Chand & Ors. Page 38 of38