Delhi District Court
Smt. Geeta Devi vs Sanjeev Kumar & Ors. 1/33 on 19 October, 2022
MACP No. 7106/16; FIR No. 416/16; PS. Alipur DOD: 19.10.2022
IN THE COURT OF SHRI VINOD YADAV, PRESIDING OFFICER,
MOTOR ACCIDENT CLAIMS TRIBUNAL, NORTH DISTRICT,
ROHINI COURTS, DELHI
MAC Petition No. 7106/16
UID/CNR No. DLNT010144222016
1. Smt. Geeta Devi,
W/o Late Sh. Deepak Sah
(Widow of deceased)
2. Gunjan Kumari,
D/o Late Sh. Deepak Sah
(Minor daughter of deceased)
3. Dipanshu Kumar,
S/o Late Sh. Deepak Sah
(Minor son of deceased)
4. Sangam Kumari,
D/o Late Sh. Deepak Sah
(Minor daughter of deceased)
5. Krishana Raj,
S/o Late Sh. Deepak Sah
(Minor son of deceased)
6. Smt. Sita Devi,
W/o Late Sh. Tilaiti Sah
(Mother of deceased)
All R/o Ward No. 5,
Village & PS. Cheriya,
Bariyarapur, Siripur,
District Begu Sarai,
Bihar.
..........Petitioners
Deepak Sah Vs. Sanjeev Kumar & Ors. 1/33
MACP No. 7106/16; FIR No. 416/16; PS. Alipur DOD: 19.10.2022
VERSUS
1. Sh. Sanjeev Kumar @ Sh. Rajesh,
S/o Ilaichi Shah,
R/o H.No. E463,
A Block, Part 1,
Mukundpur, Delhi.
(Driver)
2. Smt. Aarti Paswan,
W/o Sh. Budhan Paswan,
R/o H.No. 344,
Mukhmelpur, Delhi.
(Registered owner)
3. The National Insurance Co. Ltd.
2E/9, Jhandewalan Extension,
New Delhi.
(Insurer)
.........Respondents
Date of Institution : 22.12.2016
Date of Arguments : 13.10.2022
Date of Award : 19.10.2022
APPEARANCES:
Sh. R.K. Jain, Ld. Counsel for petitioners.
None for driver and registered owner.
Sh. Sameer K Tiwary, Ld. Counsel for insurance co.
Deepak Sah Vs. Sanjeev Kumar & Ors. 2/33
MACP No. 7106/16; FIR No. 416/16; PS. Alipur DOD: 19.10.2022
Petition under Section 166 and 140 of M.V. Act, 1988 for grant of compensation AWARD
1. The petitioners have sought compensation to the tune of Rs. 40,00,000/ with interest @ 12% per annum from the date of filing of petition till the date of realization, for the fatal injury sustained by Sh. Deepak Sah in Motor Vehicular Accident which occurred in the night intervening 07/08.07.2016 at about 4:20 AM just ahead of Singhu Border Red Light, G.T. Road, Delhi, involving Wagon R Car bearing registration no. DL1CQ2548(offending vehicle) being driven by respondent no. 1 in a rash and negligent manner.
2. It is averred in the claim petition that in the night intervening 07/08.07.2016, Sh. Deepak Sah(deceased herein) and his brother in law Sh. Heera Lal were travelling in the offending vehicle after attending the marriage ceremony of their relative at Village Tikri, Alipur, Delhi. The deceased was sitting on the rear seat and his brother in law was sitting on the left front seat of the offending vehicle. The offending vehicle was being driven by the respondent no. 1 in a rash and negligent manner. The deceased and his brother in law had requested the respondent no.1 to drive the offending vehicle at normal speed and with due care and caution but he did not pay heed towards their request. At about 4:20 AM, when the offending vehicle reached just ahead of Singhu Border Red Light, GTK Road going towards Haryana, respondent no. 1 suddenly applied sharp Deepak Sah Vs. Sanjeev Kumar & Ors. 3/33 MACP No. 7106/16; FIR No. 416/16; PS. Alipur DOD: 19.10.2022 brakes and could not control the speed of offending vehicle, as a result of which, he hit the same against the left side footpath and then again hit the back portion of a truck going ahead of the offending vehicle. Due to forceful impact, Sh. Deepak Sah sustained grievous injuries. He was immediately taken to SRHC Hospital, Narela, Delhi, wherefrom, he was referred to Lok Nayak Jai Parkash Narayan Hospital and on the next day i.e. 09.07.2016, he was shifted to Ardent Hospital, Palam Colony, Delhi and was discharged from there on 28.07.2016 after operation. FIR No. 416/16, u/s. 279/338 IPC was registered at PS. Alipur with regard to the said accident. It is further averred that the deceased was aged about 28 years; he was labourer and was earning Rs. 10,000/ per month at the time of accident. The offending vehicle was found to be owned by respondent no. 2 and insured with respondent no. 3/The National Insurance Company Limited during the period in question.
3. In their joint written statement, the respondents no. 1 & 2 raised preliminary objection that accident did not take place due to rash and negligent driving of respondent no. 1. They claimed that one truck which was going ahead of offending vehicle suddenly applied emergency brakes due to which accident had taken place. They admitted that the offending vehicle was insured with respondent no. 3 at the time of accident. It is claimed that the respondent no. 3 is liable to pay compensation, if any to the petitioners. On merits, they denied the averments made in the claim petition and prayed for its dismissal.
Deepak Sah Vs. Sanjeev Kumar & Ors. 4/33
MACP No. 7106/16; FIR No. 416/16; PS. Alipur DOD: 19.10.2022
4. Respondent no. 3/insurance company filed its legal offer, whereby it offered to pay a sum of Rs. 83,704/ alongwith the medical expenses incurred by Sh. Deepak Sah on his treatment as compensation towards full and final satisfaction of the claim raised by petitioner for the injury sustained by him in the accident in question. However, the said offer was not acceptable to the petitioner in the present case.
5. From the pleadings of the parties, the following issues were framed vide order dated 12.02.2018 passed by my Ld. Predecessor:
1. Whether the deceased Deepak Shah (SicSah) suffered fatal injuries in road traffic accident on 08.07.2016 at about 4:20 am at Singhu Border Red Light, G.T. Road, Delhi within the jurisdiction of PS. Alipur due to rashness and negligence on the part of the driver Sanjiv Kumar who was driving vehicle bearing registration no. DL1CQ2548, owned by Aarti Paswan and insured with National Insurance Co. Ltd.?OPP.
2. Whether the Lrs of deceased are entitled to any compensation if so to what amount and from whom?OPP.
3. Relief.
6. Ld. counsel for insurance company very vehemently argued that present case may be treated as an injury case as the death of the deceased had no corelation with the injuries sustained by him in the accident in question. He further argued that there is no postmortem report Deepak Sah Vs. Sanjeev Kumar & Ors. 5/33 MACP No. 7106/16; FIR No. 416/16; PS. Alipur DOD: 19.10.2022 on record which could connect the death of deceased with the injuries sustained by him in accident in question. On the other hand, Ld. Counsel for petitioners submitted that deceased had expired only due to the injuries sustained by him in the accident in question during the course of treatment.
7. I have heard both the Ld. Counsels for the parties and perused the record.
8. As per the insurance company, the petitioners have placed no medical record or the postmortem report to substantiate their claim that the death of deceased had a nexus with the accident in this case. It is argued that in the absence of any postmortem report, it can not be held that the deceased had died due to accidental injuries moreso when the death had occurred after about 1 month of the accident.
9. The facts of the case as borne out from the claim petition as well as Detailed Accident Report (DAR) filed in the matter are as under.
10. In the night intervening 07/08.07.2016, deceased Deepak Shah, aged about 28 years, was returning from a family function in Maruti WagonR Car bearing registration No.DL1CQ2548 (offending vehicle) alongwith his brotherinlaw namely Shri Heera Lal Shah. The offending vehicle was being driven by its driver respondent No.1 namely Shri Sanjeev Deepak Sah Vs. Sanjeev Kumar & Ors. 6/33 MACP No. 7106/16; FIR No. 416/16; PS. Alipur DOD: 19.10.2022 Kumar in a rash and negligent manner, without following the traffic rules. He was warned by both the aforesaid occupants to drive the offending vehicle carefully, but it fell on deaf ears. At about 4.20 AM, when the offending vehicle had just crossed Singhu border red light, on GT Karnal Road, going towards Haryana side from Delhi side, the driver could not control the offending vehicle because of high speed and it rammed into footpath and then hit an unknown truck from behind. The deceased got severely injured and was taken to SRHC Hospital by some public persons. The information regarding the accident was given to the police. The case FIR in the matter was recorded on the basis of DD No.9B, which was information regarding the accident received at PS. The IO went to SRHC Hospital where the deceased was declared unfit for making statement. In the meantime, considering the condition of deceased, he was referred to LNJP Hospital on the next day, i.e 09.07.2016. Thereafter, he was taken to Ardent Hospital at Palam Colony, where he remained under treatment till 28.07.2016. Thereafter, he was taken to Safdarjung Hospital, where he remained under treatment till 10.08.2016. There, probably the treating doctors suggested the family members of deceased that he had no chance of recovery because he had developed "quadri plegia" (paralysis). The family members took the deceased to his native place in Bihar according to their limited wisdom, where he died on 12.08.2016. No postmortem on his dead body was conducted.
11. The question which arises for consideration before this Tribunal is as to whether the deceased had died due to the injuries received by him Deepak Sah Vs. Sanjeev Kumar & Ors. 7/33 MACP No. 7106/16; FIR No. 416/16; PS. Alipur DOD: 19.10.2022 in the accident in question. In this regard, the relevant record from SRHC Hospital, Ardent Hospital and Safdarjung Hospital has been duly proved which shows that the deceased was under continuous treatment. It is relevant to note here that initially the IO had not collected the medical record from Ardent Hospital as well as Safdarjung Hospital, but after passing of a detailed order by this Tribunal on 16.05.2017, the relevant record was collected by the police and filed on record of this case on 08.08.2017.
The law in this regard is fairly settled in the following judgments:
(i) Afsana & Ors. V/s Kundu Knitfab Pvt. Ltd., 2022 ACJ 754, wherein the injured had also become quadriplegic while under treatment after the accident. He remained under treatment for more than three months and died as such. It was held "a person who is confined to bed and suffering from quadriplegia cannot be for any other reason, but on account of injuries suffered by him in the accident".
(ii) Manju & Ors. V/s Naresh Kumar & Ors., decided by the Hon'ble High Court of Delhi on 26.07.2013, in MAC.APP No.693/2011, wherein the deceased had suffered motor accident on 10.07.2007. he remained in hospital till 03.08.2007, but unfortunately expired on 18.09.2007 and it was held that the death was on account of injuries suffered by the deceased in the accident.
Deepak Sah Vs. Sanjeev Kumar & Ors. 8/33
MACP No. 7106/16; FIR No. 416/16; PS. Alipur DOD: 19.10.2022
(iii) ICICI Lombard General Insurance
Company Limited V/s Munni Devi & Ors.,
decided by the Hon'ble High Court of Delhi on
16.09.2016, in MAC.APP No.884/2015, wherein the deceased had suffered motor accident on 21.11.2010. He had suffered multiple spinal injuries which rendered him quadriplegic. He remained hospitalized till 14.12.2010. He was later on taken to various other hospitals and ultimately died on 06.05.2012. The insurance company took defence that there was no proximity between the accident and the death as deceased had died after ten months of discharge from the hospital. The Hon'ble High Court was pleased to hold that the death had a direct corelation with the injuries suffered by the deceased in the accident.
(iv) National Insurance Co. V/s Saroj & Ors., decided by the Hon'ble High Court of Delhi on 09.05.2016, in MAC.APP No.35/2014, wherein the deceased had suffered motor accident on 09.07.2007. However, he died on 08.03.2009.
The Hon'ble High Court after considering the medical record found that the deceased had remained under continuous treatment and as such, the death was on account of the injuries suffered by him in the accident.
12. The case law on the issue is endless, but suffice it to say that the ratio of all the cases is that if the deceased remained under continuous treatment, then the death is attributable to the injuries suffered during accident.
Deepak Sah Vs. Sanjeev Kumar & Ors. 9/33
MACP No. 7106/16; FIR No. 416/16; PS. Alipur DOD: 19.10.2022
13. Apart from above, it would be useful to refer to the decision in the case titled as "National Insurance Co. Ltd. Vs. Meenakshi Gupta & Ors.", in MAC APP. 1122/2017 & CM APPL. 46976/207, decided on 19.07.2019, wherein Hon'ble High Court of Delhi has held that nonfiling of postmortem report would not defeat the claimants' case. Similar view has been taken by Hon'ble High Court of Andhra Pradesh in decision in the case of " Khairullah @ Babu, Lorry Driver & another Vs. Smt. Anita @ Amruthalal Patel & Ors. ", APP against Order No. 452 of 1989, decided on 24.12.1993.
14. It is admitted position on record that the deceased was under
treatment of Ardent Hospital at the time of his death. The medical record in this regard is already on record as Ex. PW1/4(Colly) & Ex. PW1/5 which shall be discussed in succeeding paragraphs.
15. Now adverting to the facts of the present case. Undisputedly, the initial burden lies upon petitioners to prove that Sh. Deepak Sah (deceased) died due to the injuries sustained by him in the accident in question. The petitioners are required to discharge the said burden on the basis of preponderance of probabilities.
16. It is relevant to discuss the testimony of PW3 Sh. Satpal, Record Clerk, VMMC & Safdarjang Hospital, Delhi who deposed in his examination that the patient Sh. Deepak was admitted in their hospital on 08.08.2016 and discharged as LAMA. He exhibited the entire treatment Deepak Sah Vs. Sanjeev Kumar & Ors. 10/33 MACP No. 7106/16; FIR No. 416/16; PS. Alipur DOD: 19.10.2022 record as Ex. PW3/A(Colly). It is also relevant to discuss the treatment record of Ardent Hospital from where the deceased had lastly taken the treatment. As per the discharge card (which is part of Ex. PW1/4 colly) of Ardent Hospital, deceased was admitted in the hospital on 09.07.2016 and was discharged on 22.07.2016. The treatment record as well as medical bills filed on record reveal that deceased was continuously receiving the treatment from Ardent Hospital before the date of his death.
17. It is quite evident from the treatment record filed by the petitioners that Sh. Deepak Sah had suffered tear drop fracture along the anterior aspect of C5 Vertebral body with retropulsion into the spinal canal causing compression over the spinal cord and associated long segment spinal cord contusion extending from C3 to D1 vertebral levels on T2W images as described.
18. In case titled as "Klaus Mittelbachert Vs. East India Hotels Ltd., AIR 1997 Del 201, the Hon'ble High Court of Delhi has been pleased to hold as under: xxxxx "128. In words & Phrases, Permanent Edn Vol. 21 at page 448 , „ injury causing death‟ has been defined as under:
" If an employee but for an injury would not have died at the time of which and in the way in which he did die the accident though it merely hastened a deep seated disorder is regarded as resulting in an " injury Deepak Sah Vs. Sanjeev Kumar & Ors. 11/33 MACP No. 7106/16; FIR No. 416/16; PS. Alipur DOD: 19.10.2022 causing death" within the Workmen‟s Compensation Act."
129. „Death resulting from injury‟ has been defined in Vol. XI page 4647 (CAPP) ibid as follows:
"Death resulting from an injury ..... covers cases in which an injury aggravates or accelerates an existing condition so that death ensues earlier than it would in the ordinary course, even though the existing condition would have ultimately resulted fatally".
130. In Pegney v. Pointers Transport Services Ltd., 1952 (2) All England Law Reports 307 relying on Re: Polemis & Furnace, 1921 (3) KB 560, 577 LORD PILHER has said:
"if death is directly traceable to the injury in the accident for which the defendants are responsible., the chain of causation is not broken".
131. In plain words, if an injury hastens or accelerates the death, directly and not remotely, then in law the injury in one causing or resulting‟ in death."
By relying upon those paragraphs, learned counsel for the appellants submitted that any injury which forms the nucleus resulting in a death, has to be taken as cause for the death.
xxxxx
19. In case titled as "Ramathal V. Managing Director, Cheran Transport Corporation AIR 2004 SC 3445:(2003) 10 SCC 53, the Hon'ble Apex Court has been pleased to hold as under: Deepak Sah Vs. Sanjeev Kumar & Ors. 12/33 MACP No. 7106/16; FIR No. 416/16; PS. Alipur DOD: 19.10.2022 xxxxx In that case, the deceased was originally injured on 14.1.1991 and was hospitalized for one week and subsequently, he was discharged from the hospital. Thereafter, after one year he died on 26.2.1992. Originally, the victim filed the claim for compensation. Since, he subsequently died, the dependants filed amendment application and sought for a sum of Rs. 5,33,000/ as compensation. The Tribunal awarded Rs. 3,59,508/. On appeal, this Court reduced the compensation of Rs. 76,000/. The claimants therein preferred appeal before the Honorable Supreme Court enhanced the compensation of Rs. 2,00,000/ . While reversing the judgment of the High Court, the Honorable Supreme Court in paragraph 15 of the judgment stated as follows:
"15 Unfortunately, the High Court did not discuss the materials on record in detail. It is not in dispute that the deceased was an indoor patient from 1401.1991 to 21.1.1991. fie thereafter was being treated in Government Hospital, Palladama. He died there. The medical certificate shows that the cause of death was due to the primary disease hypoxic encephalopathy and immediate cause of death was due to cardiorespiratory arrest. The doctor examined on behalf of the claimants categorically stated that the accident might have been the cause of death of the deceased. The doctor examined on behalf the behalf of the deceased. The respondent did not bring any material on record to show that there was no link between the accident and the death. The finding of the High Court that there was no proper medical treatment and, therefore, cause of death is Deepak Sah Vs. Sanjeev Kumar & Ors. 13/33 MACP No. 7106/16; FIR No. 416/16; PS. Alipur DOD: 19.10.2022 not attributable to the accident does not appear to be based on any material on record. In any event, it cannot be said to be the correct approach adopted by the High Court particularly when the Tribunal on the basis of the materials brought on record by the parties came to a contrary finding. No strong and cogent reason has been assigned by the High Court in support of its judgment reversing the findings of the Tribunal. It accepted the submission made on behalf of the respondent herein without analysing the materials and without arriving at a clear finding of fact."
xxxxx
20. In case titled as "Abdul Rahim & Anr. vs. Sundaresan & Anr. C.M.A. (MP) No. 898 of 2008 decided on 30.07.2009, the Hon'ble High Court of Madras has been pleased to hold as under: xxxxx "In Abdul Rahim (supra) the Court had also referred to the decision of the Andhra Pradesh High Court in Khairullah vs. Amita 1994 ACJ 1017, wherein the injured died 25 days after the accident but no post mortem was done, yet it was held that the accident could be deduced as the cause of death from the Death Certificate as well as evidence of the public witnesses. In effect, failure of the doctors to either perform a postmortem or the same not being issued by the hospital for any reason, cannot be a ground to stop a claim for compensation"
xxxxx
21. There is no substance in the contention raised on behalf of insurance company that since no postmortem was conducted on the body Deepak Sah Vs. Sanjeev Kumar & Ors. 14/33 MACP No. 7106/16; FIR No. 416/16; PS. Alipur DOD: 19.10.2022 of deceased, present case can not be treated as death case and the same should be decided as injury case.
22. In the matter titled as "National Insurance Co. Ltd. Vs. Meenakshi Gupta & Ors." (supra), it has been held by Hon'ble High Court of Delhi in para no. 2 as under: xxxxxxx " It was argued on behalf of insurance company that in the absence of any postmortem report, it cannot be held that the injured died due to the accidental injuries, more so when the death took place after about six months of the accident. This argument is bereft of merit. It is true that there is no postmortem report on record to show that the death took place due to accidental injuries but the widow of the deceased has stated on oath that the said death was due to the accidental injuries. The insurance company was free to bring any evidence on record contrary to this averment but no such evidence was brought on record by the insurance company and hence, the version of widow of the deceased that the death of her husband took place due to accidental injuries cannot be disbelieved, particularly in the absence of any evidence to the contrary, it, is thus, held that the deceased died as a result of injuries sustained by him in the accident."
xxxxxx
23. The purpose of granting compensation is to ameliorate the sufferings of the victims of Motor Vehicle Accidents and the niceties, hyper technicalities, procedural wrangles and tangles and mystic maybes have no role to play and same should not be any ground to dismiss the claim petitions and to defeat the rights of the claimants. While saying so, I am Deepak Sah Vs. Sanjeev Kumar & Ors. 15/33 MACP No. 7106/16; FIR No. 416/16; PS. Alipur DOD: 19.10.2022 fortified in my view by the decision rendered by Hon'ble Courts in the cases mentioned supra. It is also relevant to mention here that while deciding claim petition under M.V Act, it is the duty of Claims Tribunal to follow the principles of justice, equity and good conscience and to adopt more realistic, pragmatic and liberal approach. Moreover, Section 166(5) of M.V. Act also says the same thing which is reproduced as under: xxxxxx "[(5) Notwithstanding anything in this Act or any other law for the time being in force, the right of a person to claim compensation for inquiry in an accident shall, upon the death of the person injured, survive to his legal representatives, irrespective of whether the cause of death is relatable to or had any nexus with the injury or not.]"
xxxxxx (emphasis supplied to underlying which is mine)
24. The aforesaid provision has been added by way of recent amendment, however, the same appears to be clarificatory in nature and it has just removed the impediment which was felt in the unamended Act because of ambiguity. The real intention of the Legislature appears to be very clear and categorical that if by preponderance of probabilities, the death in an accident case is relatable to or has nexus with the accidental injuries then the same has to be dealt with as a case for compensation in case of death and not of merely injury.
25. In the light of aforesaid discussion and in view of the treatment record filed on record, I find substance in the submissions made by Deepak Sah Vs. Sanjeev Kumar & Ors. 16/33 MACP No. 7106/16; FIR No. 416/16; PS. Alipur DOD: 19.10.2022 Ld. Counsel for petitioners. Hence, I am inclined to decide this case as a death case.
26. In support of their claim, the petitioners have examined three witnesses i.e. PW1 Smt. Geeta Devi (widow of deceased), PW2 Sh. Heera Lal (eyewitness) and PW3 Sh. Satpal (record clerk from Safdarjang Hospital) and closed their evidence on 18.10.2021. On the other hand, no evidence has been adduced by any of the respondents and their respective evidence was closed vide order dated 14.12.2021.
27. I have heard the arguments addressed by Ld. counsels for the parties. I have also gone through the record. My findings on the issues are as under.
ISSUE NO. 1.
28. For the purpose of this issue, the testimony of PW2 Sh. Heera Lal Sah is relevant. In his evidence by way of affidavit (Ex. PW1/A), he has deposed on the lines of averments made in claim petition.
29. During his crossexamination on behalf of respondents, he deposed that he was travelling in the Maruti Wagon R car in which deceased was also travelling. He further deposed that he had also sustained minor injuries in the present accident whereas deceased had sustained grievous injuries. He deposed that he was conscious after the Deepak Sah Vs. Sanjeev Kumar & Ors. 17/33 MACP No. 7106/16; FIR No. 416/16; PS. Alipur DOD: 19.10.2022 accident. He denied the suggestion that he was not present in the offending vehicle. He deposed that his statement was recorded by the police in the hospital. He admitted that FIR was not recorded at his instance. He denied the suggestion that the offending vehicle was not being driven by respondent no. 1 at very high speed. He further deposed that he had requested the driver/respondent no. 1 to drive his vehicle slowly and in a proper manner. He further deposed that after his advise, the respondent no. 1 for sometime slowed down the speed of offending vehicle but after sometime, he again started driving the offending vehicle rashly and negligently.
30. Ld. Counsel for petitioners heavily relied upon the criminal case record (which is part of DAR) in order to bring home his point that the accident in question had occurred due to rash and negligent driving of offending vehicle by respondent no. 1. He further argued that respondent no. 1 Sh. Sanjeev Kumar was also chargesheeted by police for offences punishable U/s 279/338 IPC, which clearly establish that the accident had occurred due to rash and negligent driving of offending vehicle by respondent no. 1.
31. Moreover, the testimony of PW2 is also corroborated by documentary evidence brought on record. As already mentioned above, FIR No. 416/16 (supra) was registered at PS. Alipur with regard to accident in question. Copy of said FIR alongwith copy of chargesheet filed before Ld. Magistrate in State case, has been annexed alongwith DAR. Copy of said Deepak Sah Vs. Sanjeev Kumar & Ors. 18/33 MACP No. 7106/16; FIR No. 416/16; PS. Alipur DOD: 19.10.2022 FIR, would show that same was registered on 08.07.2016 i.e. on the date of accident itself on the basis of DD Entry No. 9B with regard to accident call received in PS. Alipur on 08.07.2016. Thus, FIR is shown to have been registered promptly and without any delay. The respondents no. 1 & 2 have failed to substantiate the plea that petitioner had any kind of ill will or enmity against them so as to falsely implicate respondent no. 1 in criminal case or to depose falsely against them during the course of inquiry. Hence, there is no possibility of false implication of respondent no.1 and/or false involvement of offending vehicle at the instance of petitioners herein.
32. It is pertinent to mention here that statement of deceased u/s. 161 Cr. P.C was also recorded by the IO during the investigation. A bare perusal of said statement would show that deceased had disclosed therein the same sequence of facts leading to the accident as deposed by PW2 in the present case. Thus, there is no reason to disbelieve the testimony of PW2 made on oath.
33. It is pertinent to note that the respondent no.1/driver of offending vehicle, was the other material witness to throw light by testifying as to how and under what circumstances, the accident had taken place. However, he has preferred not to enter into the witness box. Thus, an adverse inference is liable to be drawn against him to the effect that the accident in question had occurred due to rash and negligent driving of offending vehicle by respondent no. 1.
Deepak Sah Vs. Sanjeev Kumar & Ors. 19/33
MACP No. 7106/16; FIR No. 416/16; PS. Alipur DOD: 19.10.2022
34. Apart from above, copy of MLC (which is part of DAR) of injured prepared at SRHC Hospital, Delhi shows that he had been removed to said hospital on 08.07.2016 at about 4:17 am with alleged history of RTA. On his local examination, he was found to have sustained multiple injuries as mentioned therein. The said injuries are consistent with the injuries which are sustained in motor vehicular accident.
35. In view of the aforesaid discussion and the evidence which has come on record, it is held that the petitioners have been able to prove on the basis of pre ponderence of probabilities that Sh. Deepak Sah had sustained injuries in road accident which took place in the night interveningof 07/08.07.2016 at about 4:20 AM just ahead of Singhu Border Red Light, G.T. Road, Delhi due to rash and negligent driving of offending vehicle by respondent no. 1. Thus, issue no. 1 is decided in favour of petitioners and against the respondents.
ISSUE NO. 236. Section 168 of the Act enjoins the Claims Tribunal to hold an inquiry into the claim to make an award determining the amount of compensation which appears to it to be just and reasonable. It has to be borne in mind that the compensation is not expected to be a windfall or a bonanza nor it should be niggardly.
Deepak Sah Vs. Sanjeev Kumar & Ors. 20/33
MACP No. 7106/16; FIR No. 416/16; PS. Alipur DOD: 19.10.2022
MEDICAL EXPENSES
37. PW1 Smt. Geeta Devi (widow of deceased injured) has deposed in her evidence by way of affidavit(Ex. PW1/A) that after the accident, her husband was taken to SRHC Hospital, Delhi and thereafter, on the same day, he was referred to Lok Nayak Jai Prakash Narayan Hospital and on the next day i.e. on 09.07.2016, he was shifted to Ardent Hospital and was discharged on 28.07.2016. She further deposed that on 07.08.2016, her husband was again taken in the OPD of Ardent Hospital where the doctors after checking him referred him to Higher Centre for further management. She deposed that on 08.08.2016, her husband was again taken in the OPD of Safdarjang Hospital and got him admitted there and on 09.08.2016, the treating doctor informed them about the worst condition of her husband and discharged him on 09.08.2016. She further deposed that she had incurred more than Rs. 5,00,000/ on treatment, conveyance, special diet, attendant charges and on the last rites of her deceased husband. For this she has relied upon medical bills Ex. PW1/7(colly) and list of medical bills marked as Mark B. She has relied upon the following documents: S.No. Description of documents Remarks
1. Copy of statement of deceased Ex PW1/1
2. DAR Ex. PW1/2(colly)
3. Copy of death certificate of Ex. PW1/3 deceased
4. Original treatment record Ex. PW1/4 Deepak Sah Vs. Sanjeev Kumar & Ors. 21/33 MACP No. 7106/16; FIR No. 416/16; PS. Alipur DOD: 19.10.2022
5. Treatment record of Safdarjang Mark A Hospital
6. Original OPD Card of Ardent Ex. PW1/5 Hospital
7. Original medical bills Ex. PW1/6(colly)
8. Original medical bills Ex. PW1/7(colly)
9. List of medical bills Mark B
10. Copy of death certificate of Ex. PW1/8 father of deceased
11. Copies of Aadhaar Cards of Ex. PW1/9(colly) children of deceased
12. Copy of acknowledgment slip Mark C of Gunjan Kumar
13. Copy of school I Card of Ex. PW1/10 Gunjan Kumari
14. Copy of school I Card of Ex. PW1/11 Deepanshu Kumar
15. Copy of Voter I Card deceased Ex. PW1/12
38. During her crossexamination on behalf of respondents, she denied the suggestion that she had not incurred more than Rs. 5 lakhs on treatment, conveyance, special diet, attendant charges and on the last rites of her husband.
39. It is relevant to note that petitioners have filed medical bills to the tune of Rs. 2,12,288.40 only. It is quite evident that the respondents have not disputed the authenticity and genuineness of the said medical bills during the course of inquiry. They have also not led any evidence in Deepak Sah Vs. Sanjeev Kumar & Ors. 22/33 MACP No. 7106/16; FIR No. 416/16; PS. Alipur DOD: 19.10.2022 rebuttal so as to create any doubt on the genuineness of said bills. Accordingly, a sum of Rs. 2,12,000/(rounded off) is awarded to the petitioner under this head.
LOSS OF DEPENDENCY
40. As already stated above, the claimants are the widow, four minor children and mother of deceased. PW1 Smt. Geeta Devi has deposed in her evidence that deceased was 28 years old at the time of accident. She further deposed that she was working as labourer in Delhi and was earning Rs. 10,000/ per month. She further deposed that deceased was contributing about Rs. 9,000/ per month towards household expenses. She also deposed that all the petitioners were financially dependent upon the income of deceased at the time of accident.
41. During his crossexamination on behalf of respondents, she denied the suggestion that deceased was not working and earning RS. 10,000/ per month. She further denied the suggestion that deceased was not contributing about Rs. 9,000/ per month towards household expenses. She denied the suggestion that she had not suffered any financial loss due to the death of her husband. She deposed that her family was not having agricultural income.
Deepak Sah Vs. Sanjeev Kumar & Ors. 23/33
MACP No. 7106/16; FIR No. 416/16; PS. Alipur DOD: 19.10.2022
42. During the course of arguments, Ld. counsel for petitioners fairly conceded that for want of any cogent and definite evidence being led by petitioners regarding monthly income of deceased, his income should be considered as per Minimum Wages Act in order to calculate the loss of dependency. He however argued that future prospects may also be awarded to the petitioners as per law.
43. As already noted above, PW1 Smt. Geeta Devi, who is widow of deceased deposed in her evidence that deceased was earning Rs. 10,000/ per month at the time of accident. However, she has not filed any documentary evidence in this regard. Petitioners have also failed to file any educational qualification documents of deceased. Hence, it is held that the petitioners have failed to prove that deceased was employed or earning any amount at the time of accident. For want of cogent and definite evidence being led by petitioners with regard to actual monthly income of deceased, her notional monthly income is being taken as equivalent to that of an unskilled worker under Minimum Wages Act applicable during the relevant period. The minimum wages of an unskilled worker were Rs. 9,568/ per month as on the date of accident which is 07/08.07.2016.
44. As per the case of petitioners, deceased Sh. Deepak Sah was aged about 28 years at the time of accident. It is pertinent to note that petitioners have relied upon copy of Voter I Card (Ex. PW1/12) of deceased wherein his date of birth is mentioned as 01.01.1988. Thus, he was aged about 28 years at the time of accident(date of accident being Deepak Sah Vs. Sanjeev Kumar & Ors. 24/33 MACP No. 7106/16; FIR No. 416/16; PS. Alipur DOD: 19.10.2022 07/08.07.2016). Thus, the age of deceased is accepted as 28 years at the time of accident. Hence, the multiplier of 17 would be applicable in view of pronouncement made by Constitutional Bench of Apex Court in the case titled as "Sarla Verma Vs. DTC" 2009 ACJ 1298 SC.
45. Considering the fact that deceased was not having permanent job at that time, future prospects @ 40% has to be awarded in favour of petitioners in view of pronouncement made by Constitutional Bench of Apex Court in the case titled as "National Insurance Company Ltd. Vs. Pranay Sethi & Ors." Civil Appeal No. 6961/2015 decided on 31.10.2017, as well as in view of decision of Hon'ble High Court of Delhi in appeal bearing MAC APP No. 798/2011 titled as "Bajaj Allianz General Insurance Company Ltd. Vs. Pooja & Ors", decided on 02.11.17.
46. PW1 has categorically deposed in her evidence by way of affidavit (Ex. PW1/A) that all the petitioners were fully dependent upon the services of deceased. Considering the fact that there were six dependents, there has to be deduction of one fourth towards personal and living expenses of the deceased as held in the case of Pranay Sethi mentioned supra. There has to be addition of 40% towards element of future prospects in the monthly income of deceased(he being aged about 28 years at the time of accident), in view of pronouncement made by Constitutional Bench of Apex Court in the case titled as "National Insurance Company Ltd. Vs. Pranay Sethi & Ors.", mentioned supra as well as in view of recent Deepak Sah Vs. Sanjeev Kumar & Ors. 25/33 MACP No. 7106/16; FIR No. 416/16; PS. Alipur DOD: 19.10.2022 decision of Hon'ble Delhi High Court in appeal bearing MAC APP No. 798/2011 titled as "Bajaj Allianz General Insurance Company Ltd. Vs. Pooja & Ors", decided on 02.11.17. Thus, the total of loss of dependency would come out to Rs. 20,49,465.60 paise (Rs. 9,568/ X 3/4 X 140/100 X 12 X 17). Hence, a sum of Rs. 20,50,000/(rounded off) is awarded under this head in favour of the petitioners.
LOSS OF LOVE AND AFFECTION
47. After the celebrated judgment of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors. mentioned supra and recent judgment titled New India Assurance Company Limited versus Somwati & Ors., Civil Appeal no. 3093 of 2020 dated 07.09.2020 the petitioners are not entitled to be compensated under this head. Further Hon'ble Delhi High Court in appeal titled as "Bajaj Allianz General Insurance Company Ltd. Vs. Pooja & Ors", mentioned supra has been pleased to observe in para 18 of the judgment that the constitution bench decision in Pranay Sethi (supra) does not recognize any other nonpecuniary head of damages. Hence, no amount of compensation is being awarded under this head.
LOSS OF CONSORTIUM
48. In view of the judgment of Hon'ble Supreme Court in case titled as, "New India Assurance Company Limited V/s Somwati & Ors.", Civil Deepak Sah Vs. Sanjeev Kumar & Ors. 26/33 MACP No. 7106/16; FIR No. 416/16; PS. Alipur DOD: 19.10.2022 Appeal No.3093 of 2020, dated 07.09.2020, I am of the considered opinion that the widow, four children and mother of deceased are entitled for payment of Rs.40,000/ each towards loss of consortium. Furthermore, as per judgment of Pranay Sethi (supra), the amount awarded under this Head should be enhanced @ 10% in every three years. This judgment was passed by Hon'ble Supreme Court on 31.10.2017. Consequently, a sum of Rs.40,000/+Rs.4,000/ (10% of Rs.40,000/) = Rs.44,000/ each to each petitioner is awarded under this head. Since, there are six Lrs of deceased, therefore, a total sum of Rs.2,64,000/ (@Rs.44,000/ x 6 petitioners) is awarded to the petitioners under this head.
LOSS OF ESTATE & FUNERAL EXPENSES
49. In view of the facts and circumstances of the present case and in view of decision of Hon'ble Apex Court in the case of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors." mentioned supra, a sum of Rs.15,000/+Rs.1,500/ (enhancement @ 10% of Rs.15,000/)=Rs.16,500/ each is awarded in favour of petitioners on account of loss of estate and funeral expenses.
CONVEYANCE & ATTENDANT CHARGES
50. During the course of arguments, learned counsel for the LRs of deceased/petitioners has very vehemently argued that petitioners have Deepak Sah Vs. Sanjeev Kumar & Ors. 27/33 MACP No. 7106/16; FIR No. 416/16; PS. Alipur DOD: 19.10.2022 spent considerable amount on the conveyance. Though, the LRs of deceased/petitioners have failed to lead any cogent evidence on record in respect of amount incurred by them under the aforesaid head, however, as discussed in the preceding paragraph, during the interregnum period, i.e from the date of accident (07/08.07.2016) till his demise on 12.08.2016, the deceased was shifted between three different hospitals. The period of hospitalization of deceased has not at all been disputed by the insurance company. Considering the serious nature of injuries suffered by the deceased visàvis the period of hospitalization, it is clearly evident that he would have incurred considerable amount towards conveyance charges while commuting for his regular check up & follow up during the period of his medical treatment. He would have also incurred considerable amount towards conveyance charges while commuting to the concerned hospital as OPD patient for his regular check up & follow up during the period of his medical treatment. He would have been definitely helped by some person either outsider or from his family, to perform his daily activities as also while visiting the hospital during the course of his medical treatment. In these facts and circumstances, I hereby award a notional sum of Rs. 50,000/ for conveyance and attendant charges.
The total compensation is assessed as under:
1. Medical Expenses Rs. 2,12,000/
2. Loss of dependency Rs. 20,50,000/
3. Loss of Consortium Rs. 2,64,000/
4. Loss of Estate & Funeral Rs. 33,000/ Expenses Deepak Sah Vs. Sanjeev Kumar & Ors. 28/33 MACP No. 7106/16; FIR No. 416/16; PS. Alipur DOD: 19.10.2022
5. Conveyance & Attendant Rs. 50,000/ charges Total Rs. 26,09,000/
51. Now, the question which arises for determination is as to which of the respondents is liable to pay the compensation amount. Respondent no. 3/insurance company did not adduce any evidence as it had no statutory defence. Rather, it had given legal offer to the petitioner which was not acceptable to him. It is nowhere the case of insurance company that any term or condition of insurance policy was breached/violated by insured. Keeping in view the existence of valid insurance policy, respondent no. 3/insurance company becomes liable to pay the compensation amount, as insurance company is liable to indemnify the insured. Issue no. 2 is decided accordingly.
ISSUE NO. 3 RELIEF
52. In view of my findings on issues no. 1 and 2, I award compensation of Rs. 26,09,000/ alongwith interest @ 9% per annum in favour of petitioner and against the respondents w.e.f. date of filing of the petition i.e. 22.12.2016 till the date of its realization (Reliance placed on judgment "Oriental Insurance Company Ltd. Vs. Sangeeta Devi & Ors bearing MAC. APP. 165/2011 decided on 22.02.2016).
Deepak Sah Vs. Sanjeev Kumar & Ors. 29/33
MACP No. 7106/16; FIR No. 416/16; PS. Alipur DOD: 19.10.2022
APPORTIONMENT
53. Statement of widow of deceased in terms of Clause 29 MCTAP was recorded on 11.07.2022 on behalf of herself as well as on behalf of remaining petitioners. It is pertinent to mention here that petitioner no. 6 Smt. Sita Devi has filed an affidavit stating therein that she does not want any compensation in the present case and her share amount, if any may be given to her daughter in law and grand children. Having regard to the facts and circumstances of the case and in view of their statements, it is hereby ordered that out of total compensation amount, the petitioner no. 1 Smt. Geeta Devi (widow of deceased) shall be entitled to share amount of Rs. 16,09,000/(Rupees Sixteen Lakhs and Nine Thousand Only) alongwith proportionate interest and the petitioners no. 2 to 5 Gunjan Kumari, Dipanshu Kumar, Sangam Kumari and Krishana Raj (minor children of deceased) shall be entitled to share amount of Rs. 2,50,000/ each(Rupees Two Lakhs and Fifty Thousand Only) alongwith proportionate interest.
54. Out of share amount of petitioner no. 1, a sum of Rs. 6,09,000/ (Rupees Six Lakhs and Nine Thousand Only) shall be immediately released to her through his saving bank account no. 40743379958 with State Bank of India, Begusarai, Nagarpalika Chowk Market, having IFSC Code. SBIN0000032 and remaining amount alongwith interest amount is directed to be kept in the form of FDRs in the multiples of Deepak Sah Vs. Sanjeev Kumar & Ors. 30/33 MACP No. 7106/16; FIR No. 416/16; PS. Alipur DOD: 19.10.2022 Rs. 25,000/ each for a period of one month, two months, three months and so on and so forth, having cumulative interest.
55. The entire share amount alongwith interest of petitioners no. 2 to 5 be kept in FDRs for the period till they attain the age of majority and thereafter a sum of Rs. 50,000/each shall be released to them and remaining amount alongwith interest be kept in the form of FDRs in the multiples of Rs. 10,000/ each for a period of one month, two months, three months and so on and so forth, having cumulative interest. The petitioners no. 2 to 5 are at liberty to withdraw their monthly interest in order to meet their educational expenses through their mother/natural guardian.
56. All the FDRs to be prepared as per aforesaid directions, shall be subject to the following conditions:
(a) The Bank shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the claimant(s) i.e. the savings bank account(s) of the claimant(s) shall be an individual savings bank account(s) and not a joint account(s).
(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 the savings bank account of the claimant(s) near the place of their residence.
Deepak Sah Vs. Sanjeev Kumar & Ors. 31/33
MACP No. 7106/16; FIR No. 416/16; PS. Alipur DOD: 19.10.2022
(d) The maturity amounts of the FDR(s) be credited by Electronic
Clearing System (ECS) in the savings bank account of the claimant(s) near the place of their residence.
(e) No loan, advance, withdrawal or premature discharge be allowed on the fixed deposits without permission of the Court.
(f) The concerned bank shall not issue any cheque book and/or debit card to claimant(s). However, in case the debit card and /or cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount.
(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 alongwith the duly signed and stamped by the bank official on the passbook(s) of the claimant(s) is sufficient compliance of clause(g) above.
(i) The petitioner is directed to open a Motor Accident Claims Annuity (Term) Deposit Account (MACAD) in terms of order dated 07.12.2018 of Hon'ble Justice J.R. Midha in case titled as Rajesh Tyagi and Others Vs. Jaibir Singh and Others F.A.O No. 842/03 as per clause 31 of MCTAP and form VIII titled as Motor Accident Claims Annuity Deposit (MACAD) Scheme as directed in the said order.
(j) Concerned Manager, SBI, Rohini Court branch is further directed to disburse the FD amount in Motor Accident Claims Annuity Deposit (MACAD) Scheme account as directed by Hon'ble Delhi High Court vide order dated 07.12.18, on completing necessary formalities as per rules.
57. Respondent no. 3/National Insurance Co. Ltd., being insurer of the offending vehicle, is directed to deposit the award amount with SBI, Deepak Sah Vs. Sanjeev Kumar & Ors. 32/33 MACP No. 7106/16; FIR No. 416/16; PS. Alipur DOD: 19.10.2022 Rohini Courts branch within 30 days as per above order, failing which insurance company shall be liable to pay interest @ 12% p.a for the period of delay. Concerned Manager, SBI, Rohini Court Branch is directed to transfer the respective share amounts immediately to aforesaid petitioners in their aforesaid saving bank accounts, on completing necessary formalities as per rules. He be 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 award amount starts earning interest from the date of clearance of the cheques. Copy of the award be given dasti to the petitioners and also to counsel for the insurance company for compliance. Copy of this award alongwith one photograph each, specimen signatures, copy of bank passbooks and copy of residence proof of the petitioners, be sent to Nodal Officer of SBI, Rohini Court, Branch, Delhi for information and necessary compliance. Form XV & XVII in terms of MCTAP are annexed herewith as AnnexureA. Copy of order be also sent to concerned M.M and DLSA as per clause 31 and 32 of MCTAP. Announced in the open Court on 19.10.2022 (VINOD YADAV) Judge MACT2 (North) Rohini Courts, Delhi Certified that above award contains 33 pages and each page is signed by me.
(VINOD YADAV)
Judge MACT2 (North)
Rohini Courts, Delhi
Deepak Sah Vs. Sanjeev Kumar & Ors. 33/33