Delhi District Court
Ghamandi vs Sh. Subhash (Driver) on 16 December, 2020
IN THE COURT OF SH. RAJ KUMAR
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNAL:
(WEST-01):DELHI
MACT Case No. 427/2017
1. Ghamandi
S/o Late Sh. Gopali
Aged about 50 years
2. Smt. Krishana
W/o Sh. Ghamandi
Aged about 43 years
Both R/o 198, Haiderpur, Distt. Hapur(UP)
P.S. Gadh Mukteshwar
........Petitioners
Versus
1. Sh. Subhash (Driver)
S/o Sh. Ved Praksh
R/o Village Thuian,
Tehsil & P.O. Rail Bhattu Kalan,
District Fatehabad, Haryana
2. Sh. Gurvinder Singh (Owner)
S/o Sh. Harcharan Singh
R/o H. No. 4, Sector-13, Part-II,
Hisar, Haryana
3. United India Insurance Co. Ltd. (Insurer)
At 1st Floor, Akash Plaza,
Near Jindal Chowk,
Hissar-125001, Haryana
......... Respondents
Date of Institution: : 03.07.2017
Date of reserving order/judgment : 28.07.2020
Date of pronouncement: : 16.12.2020
MACT Case No. 427/17 Page No. 1/23
AWARD
FORM-V
COMPLIANCE OF THE PROVISIONS OF THE MODIFIED CLAIMS TRIBUNAL AGREED PROCEDURE
1. Date of the accident 03.05.2017
2. Date of intimation of the accident by the Date not mentioned Investigation Officer to the Claims Tribunal.
3. Date of Intimation of the accident by the 12.05.2017 Investigating Officer to the Insurance Company.
4. Date of filing of Report under Section 173 Not mentioned Cr. P.C. before the Metropolitan Magistrate.
5. Date of filing of Detailed Accident 03.07.2017 Information Report (DAR) by the Investigating Officer before Claims Tribunal.
6. Date of service of DAR on the Insurance 03.07.2017 Company.
7. Date of service of DAR on the claimant 03.07.2017
(s).
8. Whether DAR was complete in all Yes respects?
9. If not, whether deficiencies in the DAR ------
removed later on?
10. Whether the police has verified the Yes documents filed with DAR?
11. Whether there was any delay or Accident in question took deficiency on the part of the Investigating place on 03.05.2017 and the Officer ? If so, whether any action/ DAR was filed on record on direction warranted? 03.07.2017.
12. Date of appointment of the Designated Date not mentioned Officer by the Insurance Company
13. Name, address and contact number of Not mentioned the Designated Officer of the Insurance MACT Case No. 427/17 Page No. 2/23 Company.
14. Whether the Designated Officer of the Yes Insurance Company submitted his report within 30 days of the DAR?
15. Whether the Insurance Company No admitted the liability? If so, whether the Designated Officer of the Insurance Company fairly computed the compensation in accordance with law.
16. Whether there was any delay or No deficiency on the part of the Designated Officer of the Insurance Company? If so, whether any action/direction warranted?
17. Date of response of the claimant (s) to Legal offer was not given by the offer of the Insurance Company. the insurance company
18. Date of the award 16.12.2020
19. Whether the award was passed with the Yes consent of the parties?
20. Whether the claimant (s) were directed to Yes open savings bank account (s) near their place of residence?
21. Date of order by which claimant (s) were 12.01.2018 directed to open savings bank account
(s) near his place of residence and produce PAN Card and Adhaar 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.
22. Date on which the claimant(s) produced 14.01.2020 the passbook of their savings bank account near the place of their residence along with the endorsement, PAN Card and Adhaar Card?
23. Permanent Residential Address of the Both petitioners R/o 198, Claimant(s). Haiderpur, District Hapur, PS Gadh, Mukteshwar, Uttar Pradesh-245205 MACT Case No. 427/17 Page No. 3/23
24. Details of savings bank account(s) of the The petitioner No.1 is having claimant(s) and the address of the bank A/c No.38692515205 of with IFSC Code. State Bank of India, Garh Mukteshwar, Subhash Gate District, Ghaziabad. IFSC Code:-SBIN0004340 The petitioner No.2 is having A/c No.39056422157 of State Bank of India, Garh Mukteshwar, Subhash Gate District, Ghaziabad. IFSC Code:-SBIN0004340
25. Whether the claimant(s) savings bank Yes account (s) in near his place of residence?
26. Whether the claimant (s) were examined Yes at the time of passing of the award to ascertain his/their financial condition?
27. Account number, MICR number, IFSC ADJ/MACT/Parking Account Code, name and branch of the bank of of SBI Tis Hazari Courts, the Claims Tribunal in which the award Delhi as informed by the amount is to be deposited/transfered. Chief Manager, SBI Tis Hazari Courts, Delhi MICR:- 110002126, IFSC Code:- SBIN0000726
1. This judgment -cum- award shall decide the petition under Section 166 and 140 of Motor Vehicle Act 1988 as amended up to date (hereinafter referred to as the 'Act') filed by the petitioners for grant of compensation for the death of the deceased Sh. Madhav in the road vehicular accident.
2. Brief facts of the case are that on 03.05.2017 at about 9:15PM, the deceased Sh. Madhav along with Sh. Ram Rachha (since deceased) were eating Chowmein on a Rehdi at Ganda Nala Road & Corner of RZC. It has been further stated that all of a sudden, the offending Truck bearing No. HR-39A-8828 HTV which was loaded with scrap was suddenly started by his driver/respondent No.1.
MACT Case No. 427/17 Page No. 4/23It has been further stated that the respondent No.1 i.e. the Driver of the offending vehicle instead of plying the offending truck ahead, brought it back with a great speed, rashly and negligently and hit the deceased, Sh. Ram Rachha and two other persons. It has been further stated that after the accident, the deceased was taken to DDU hospital where he was declared brought dead. It has been further stated that the postmortem of the deceased was conducted at DDU Hospital, New Delhi.
3. As a result of the abovesaid accident, as per the case of the petitioners, FIR No. 141/2017 dated 03.05.2017: P.S. Khyala u/s 279/337/304A IPC was registered against the respondent No.1.
4. It has been further stated that at the time of the accident, the deceased was 22 years of age. It has been further stated that the deceased was working as a Sofa Worker with Samkan Live Style and earning Rs.15,000/- per month.
5. It has been further stated that the deceased is survived by his father and mother. It has been further stated that the petitioner no.1 is the father of the deceased and the petitioner No.2 is the mother of the deceased.
6. In total, the petitioners have claimed a sum of Rs.80,00,000/- (Rupees Eighty Lacs Only) on account of compensation.
7. It has been further stated that the respondent no.1 being the driver of the offending vehicle, the respondent no.2 being the owner of the offending vehicle and the respondent no.3 being the insurer of the offending vehicle are jointly liable to pay the compensation to the petitioners.
8. Written statement has been jointly filed by the respondents No.1 & 2 stating therein that the respondents No.1 & 2 have been falsely implicated in the present matter. It has been further stated that accident in question took place due to own negligence of the deceased. It has been further stated that the respondent No.1 was also having a valid and effective driving license to drive the alleged offending vehicle at the time of accident. It has been further that at the MACT Case No. 427/17 Page No. 5/23 time of accident, the alleged offending vehicle was insured with the insurance company. It has been further stated that the alleged offending vehicle was not present at the spot of the accident at the time of the accident. It has been prayed that the present claim petition be dismissed.
9. Written statement has also been filed on record by the insurance company wherein it has been admitted that the alleged offending vehicle bearing No.HR-39-A-8828 (TATA Motors/2515 TC Ex) was duly insured with it vide policy No.1125003116P117071947 valid for the period from 13.03.2017 to 12.03.2018 issued in the name of Sh. Gagandeep Singh. It has been further stated that the respondents were not having any valid permit at the time of accident. It has been further stated that the respondent No.1 Sh. Subhash was not holding any driving license and he was challaned u/s 3/181 of MV Act. It has been further stated that the terms and conditions of the insurance policy have been violated and as such, the insurance company is not liable to pay any compensation. It has been prayed that the present claim petition be dismissed.
10. However, vide orders dated 07.11.2020, on the no objection of the Ld. Counsel for the petitioner, Sh. Gagandeep Singh, insured of the offending vehicle was added as respondent no.4 in the array of the parties. Thereafter, Sh. Gagandeep Singh was also served in the present matter and Sh. Abhishek Manhas, Ld. Counsel for respondent np.4 Sh. Gagandeep Singh appeared before the Court. Ld. Counsel for the respondent no.4 Sh. Gagandeep Singh has placed on record the copy of the certain documents and copy of the RC obtained from RTO, Hisar mentioning therein that Sh. Gagandeep Singh was the owner of the offending vehicle only upto 30.03.2016. Copy of the RC of the offending vehicle which has been placed on record by the Ld. Counsel for Sh. Gagandeep Singh specifically reveals that Sh. Gurvinder Singh, the respondent no.2 was the registered owner of the offending vehicle on the date and time of the accident.
11. After hearing the arguments and going through the pleading of the parties, following issues were framed by this Tribunal on 08.12.2017:-
MACT Case No. 427/17 Page No. 6/231. Whether the deceased Madahv suffered fatal injuries in the accident that took place on 03.05.2017 at about 9.15 pm due to rash and negligent driving of vehicle bearing No. HR 39 A 8828 by the respondent No.1 Sh. Subhash, being owned by the respondent No.2 Sh. Gurvinder Singh and insured with the respondent No.3? OPP.
2. Whether the petitioners are entitled to compensation, if so, at what amount and from whom? OPP.
3. Relief.
12. In order to establish their claim, the petitioners have examined the petitioner No.1 Sh. Ghamandi as PW-1 and in his evidence by way of affidavit, he has reiterated and reaffirmed the stand as taken by the petitioners in the present claim petition. He has filed on record his affidavit as Ex. PW1/A; copy of his Aadhar Card as Ex.PW1/1(OSR); photocopy of Aadhar Card of Krishna as Ex.PW1/2(OSR), certificate given by the employer of the deceased as Ex.PW1/3 and complete DAR together with the documents filed on record by the IO as Ex.PW1/4(colly).
13. In the cross-examination done by Ld. Counsel for the insurance company, PW-1 admits it to be correct that his deceased son was a bachelor. PW-1 further states that the age of his deceased son was 22 years. PW-1 further states that the photocopy of the Aadhar Card of his deceased son has been placed on record and the same has been exhibited as Ex.P1. PW-1 further states that the date of birth of his deceased son as mentioned in the Aadhar Card is 01.01.1995. PW-1 further states that his deceased son was educated upto 8 th standard. PW-1 admits it to be correct that he has not placed on record any documentary proof to show the educational qualification of his deceased son. PW-1 further states that his deceased son was residing in Delhi for a period of 4 years prior to his death and Ex.PW1/3 is the proof for the same.
14. PW-1 admits it to be correct that he is not an eye witness to the accident in question. PW-1 further admits it to be correct that he is working as a MACT Case No. 427/17 Page No. 7/23 labour in his village.
15. The petitioners have further examined the eye witness Sh. Ashrafi Kushwaha as PW-2 and this witness has stated that the accident took place on 03.05.2017 at about 9PM or 9:15 PM. PW-2 has further stated that he himself along with the deceased Ramraksha went to eat Chowmein (Chinese food) on a Rehri (rickshaw). PW-2 has further stated that the offending truck bearing no. HR 39 A 8828 which was in a stationery position, all of a sudden was started by its driver and the truck started moving back in the backward direction. PW-2 has further stated that as a result, Ramraksha came under the rear wheels of the truck and was crushed at the spot. PW-2 has further stated that Ramraksha died at the spot itself. PW-2 has further stated that the accident in question took place on account of rashness and negligence of the driver of the abovesaid truck.
16. PW-2 has further stated that when the offending truck started moving back, one more person was also hit by the truck, who later on died in the hospital. PW-2 has further stated that he cannot tell as to whether the name of the other deceased who died in the hospital was Madhav.
17. In the cross examination done by Ld. Counsel for the insurance company, PW-2 has stated that he is in the job of power press at Khyala. PW-2 has further stated that on 03.05.2017, he went to his home after his duties. PW-2 has further stated that the spot of the accident was at a distance of approximately 200-300 meters from his house. PW-2 has further stated that he was knowing the deceased Ramraksha as he was his brother-in-law (Sala). PW-2 has denied the suggestion that he was not present at the spot on the date and time of the accident. PW-2 has further stated that on account of the accident with the offending truck, two persons expired and two more persons suffered injuries. PW-2 has further stated that he does not know the names of the persons, who were injured by the aforesaid truck but he does know that they were scrap dealers. PW-2 has further stated that the police had recorded his statement after calling him in the police station. PW-2 has further stated that he had not called the police telephonically at MACT Case No. 427/17 Page No. 8/23 the spot and some one else had called the police. PW-2 has further stated that he visited the hospital twice, for the first time when his sala Ramraksha was taken to the hospital immediately after the accident and for the second time for receiving the dead body of Ramraksha.
18. The petitioners have also examined the employer of the deceased Sh. Ashish Nagpal as PW-3 and he has stated that he used to know the deceased Madhav but for a very short period only i.e. approximately for a period of one and a half months. PW-3 admits it to be correct that the deceased used to work with M/s Samkan Live in Style. PW-3 further states that he came to know about the death of Madhav on the same day in the night.
19. PW-3 has been shown the certificate Ex.PW1/3 and asked the question that the said certificate was issued by him and he has answered the question that Ex.PW1/3 was not issued by him. PW-3 admits it to be correct that he is still working from the address at RZ99-A, Vishnu Garden, New Delhi-110018. By way of volunteer, PW-3 states that but he had taken the said premises on rent in August, 2018 and since then, he is working from the said premises.
20. PW-3 further states that earlier the said factory Samkan Live in Style was being run by Sh. Rajan Monga who was his friend and being the friend of Rajan Monga, he used to visit his factory at the said premises. PW-3 further states that he does not know as to how many employees were working under Rajan Monga at that time. PW-3 further states that he used to know Madhav by his name when he used to visit the said premises.
21. In the cross-examination done by Ld. Counsel for the insurance company, PW-3 admits it to be correct that he has not been associated with Samkan Live in Style in any manner. PW-3 further admits it to be correct that he is not in possession of any document pertaining to Samkan Live in Style.
22. The respondents no.1 & 2 have examined Sh. Arenbo Peter, DTO, Mon, Nagaland as R1W1 and this witness has brought on record the Form application for the renewal of driving license of Sh. Subhash, in Form No. 9 which MACT Case No. 427/17 Page No. 9/23 shows the digitization of the DL of Sh. Subhash. R1W1 further states that as per the record brought by him, the DL of Sh. Subhash was issued on 15 th July, 2009 and the same was endorsed for HTV, HPV(Heavy Passanger Vehicle) on 16.08.2011, valid upto 15th July, 2017. R1W1 further states that after digitization, the said DL was valid upto 11 th May, 2020 for transport and for non Transport, the said DL was valid upto 14.07.2029. R1W1 further states that as per the record brought by him, the DL of Sh.Subhash was valid on 03.05.2017. R1W1 has also exhibited the copy of the record brought by him in the court as Ex.R1W1/1(OSR) (colly).
23. In the cross-examination done by Ld. Counsel for the insurance company, R1W1 admits it to be correct that driving license of Commercial vehicle is issued for renewal for 3 years. R1W1 further admits it to be correct that starting date of renewal has not been mentioned in his record. R1W1 further states that he cannot explain as to why in Ex. R1W1/1, it has been mentioned that the endorsement was done w.e.f. 16.08.2011 to 15.07.2017 for a period of 6 years. R1W1 admits it to be correct that renewal of commercial license is done for a period of 3 years as per MV Act.
24. Ld. Counsel for the insurance company has also relied upon the testimony of Smt. Sunita Behl as R3W1 who has been examined in the connected matter titled as Santraj vs. Subhash & ors. Bearing MACT no. 426/17.
25. In the said case, Smt. Sunita Behl as R3W1 has filed on record her affidavit as Ex. R3W1/A; the notice dated 01.03.2018 as Ex. R3W1/1, three postal receipts thereof as Ex. R3W1/2 to Ex. R3W1/4, certified copy of the insurance policy as Ex. R3W1/5.
26. In the cross examination done by Ld. Counsel for the petitioners, R3W1 has stated that in para no. 4 of her affidavit that the driver of the offending vehicle was not having a valid DL and permit in respect of the insured vehicle on 03.05.2017 on the basis of Form HR No. 34 which has been marked as Mark X and which has been filed by the IO along with the DAR. R3W1 has admitted it to be MACT Case No. 427/17 Page No. 10/23 correct that Form HR No. 34 Mark X on record merely pertains to the permit and not to the driving license. R3W1 has further stated that she has stated in para no. 4 of her affidavit that the driver of the offending vehicle was not having a valid DL on the date of the accident because the IO in the DAR has challaned the driver u/s 3/181 of the MV Act.
27. R3W1 has further stated that notice was issued to the respondent No.1 u/o 12 Rule 8 of the CPC and no reply thereto was received. R3W1 has further stated that she has not placed on record any verification report or any copy of the DL alongwith his affidavit.
28. I have thoroughly gone through the testimony of the witnesses and perused the record. I have also given my thoughtful consideration to the arguments addressed by learned counsels for the parties. The petitioners have also been examined under the MCTAP and I have considered the statement of the petitioners under MCTAP as well.
My findings on various issues are as under :-
ISSUE NO. 129. The present petition has been filed by the petitioners u/s 140 & 166 M. V. Act and the onus is upon the petitioners to prove the rash and negligent act of the respondent No.1.
30. The petitioners have examined the petitioner No. 1 as PW-1 and he has well explained the mode and manner of accident. He has reaffirmed and reiterated the averments made in the petition. During his entire cross examination, nothing has come out so as to discredit his testimony.
31. The petitioners have also examined PW-2 Sh. Ashrafi Kushwaha, the eye witness to the accident in question also who has corroborated the testimony of PW-1. PW-2 has given the minute details of the accident in question. PW-2 has elaborately spoken about the rash and negligent driving of the offending vehicle by MACT Case No. 427/17 Page No. 11/23 the respondent No.1 and the causing of the accident on account of the rash and negligent driving of respondent No.1, but during the entire cross examination of Sh. Ashrafi Kushwaha, nothing has come out so as to discredit his testimony. I have no hesitation to hold that the testimony of PW-2 Sh. Ashrafi Kushwaha is streamlined, reliable and trustworthy and the same has not been shaken at all during his entire cross-examination.
32. The respondents No. 1 & 2 i.e. the Driver and the Owner of the offending vehicle have not led any evidence in their defence and in the considered opinion of this Court, they have utterly failed to prove on record that the accident in question was not caused on account of rash and negligent driving of the offending vehicle by the driver of the offending vehicle. To my mind, the respondents have utterly failed to prove on record that there was no negligence on the part of the respondent No.1 or that the offending vehicle was not present at the spot of the accident at the time of the accident. I have also no hesitation to hold that the respondents have also failed to prove on record that the accident in question was caused on account of the own negligence of the deceased.
33. Ld. Counsel for the petitioners has claimed that in the case in hand, the charge-sheet pertaining to FIR No. 141/2017 dated 03.05.2017: P.S. Khyala u/s 279/337/304A IPC was registered against the respondent No.1.
34. The post mortem report of the deceased categorically states that the cause of death of the deceased is due to haemorrhagic shock due to multiple injuries to the vital organs of body sustained in road traffic accident. All injuries sustained by the body of deceased are ante mortem in nature. The post mortem report corroborates the stand of the petitioners that the deceased was crushed under the offending vehicle when the respondent No.1 rashly and negligently moved the offending vehicle in the backward direction.
35. In Bimla Devi & Ors vs. Himachal Road Transport Corporation & ors (2009) 13 SC 530, in Kaushnumma Begum and others v/s New India Assurance Company Limited, 2001 ACJ 421 SC, in National Insurance Co. Ltd. vs. Pushpa MACT Case No. 427/17 Page No. 12/23 Rana cited as 2009 ACJ 287, it has been held that the negligence has to be decided on the touchstone of preponderance of probabilities and a holistic view is to be taken. It has been further held that the proceedings under the Motor Vehicle Act are not akin to the proceedings in a Civil Suit and hence, strict rules of evidence are not applicable.
36. In the light of the abovesaid discussion, to my mind, the petitioners have been able to prove issue No.1 in their favour and accordingly, the issue No.1 is decided in favour of the petitioners.
COMPENSATION / ISSUE NO. 237. The petitioner no.1, in his cross-examination, has filed on record the copy of Aadhar Card of his deceased son as Ex. P1. Perusal of the Ex.P1 reveals that the date of birth of the deceased has been mentioned as 01.01.1995. The date of accident is 03.05.2017. Accordingly, the age of the deceased is taken as 22 years at the date of accident.
38. As per the petition, the deceased was as a Sofa Worker and earning Rs.15,000/- per month. In order to prove the salary of the deceased, the petitioners have examined Sh. Ashish Nagpal, the witness from the side of employer of the deceased as PW-3 and this witness has stated that Ex.PW1/3 i.e. the salary certificate of the deceased was not issued by him.
39. In the cross-examination, PW-3 admits it to be correct that he has not been associated with Samkan Live in Style in any manner. PW-3 further admits it to be correct that he is not in possession of any documents pertaining to Samkan Live in Style. As such, the petitioners have miserably failed to prove on record the salary of the deceased.
40. Accordingly, to my mind, the income of the deceased can very well be assessed on the basis of the chart available in the Minimum Wages Act of an unskilled person. The date of accident is 03.05.2017 on which the minimum wages for an Unskilled person for the relevant period were Rs. 13,584/-.
MACT Case No. 427/17 Page No. 13/2341. The petitioners have been examined on 14.01.2020 under MCTAP and their statement has also been considered by this Tribunal.
42. The Hon'ble Apex Court of the land in the latest judgment which has arisen out of SLP (Civil) No. 25590 of 2014 titled as National Insurance Company Limited vs. Praney Sethi & ors decided on 31.10.2017 has held as under:-
"61. In view of the aforesaid analysis, we proceed to record our conclusions:-
(i) The two-Judge Bench in Santosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench.
(ii) As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent.
(iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.
(iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.
(v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore.
MACT Case No. 427/17 Page No. 14/23(vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment.
(vii) The age of the deceased should be the basis for applying the multiplier.
(viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years."
43. The Hon'ble High Court of Delhi in MAC Appeal No. 798/2011 titled as Bajaj Allianz General Insurance company Ltd. vs. Pooja & ors decided on 02.11.2017 has held that even in the cases where the income of the deceased is calculated on the basis of the minimum wages, the benefit of future prospects is to be given in accordance with the abovesaid guidelines issued by the Hon'ble Supreme Court of India in the abovestated authority as per the rule applicable to self employed or privately employed persons.
44. Going by the ratio of the abovestated authority, the multiplier has to be selected as per the age of the deceased which is 23 years in the case in hand, accordingly, the multiplier of 18 as per Sarla Verma vs. DTC 2009 ACJ 1298 SC shall be applicable.
45. An addition of 40% on account of the future prospects has to be given as the age of the injured was 23 years. Accordingly, the monthly income of the injured has to be calculated as Rs.19,018/- (Rs.13,584/- + Rs.5434/- (after rounding off Rs.5433.6) which is 40% of Rs.13,584/-).
46. The deceased was a bachelor. In the case of the bachelor, only the mother alone has to be considered as dependent upon the deceased as per Sarla Verma's Judgment.
47. As per Sarla Verma (Smt.) & Ors. vs. Delhi Transport Corporation & Anr. (2009) 6 SCC 121, the deduction towards personal and living expenses of the deceased who was a bachelor should be one-half (½).
MACT Case No. 427/17 Page No. 15/2348. Hence, the total loss of dependency comes out to be Rs. 20,53,944/- = (Rs. 19,018x12x18x1/2).
49. The Hon'ble Supreme Court of India in, "National Insurance Company Ltd. vs. Pranay Sethi & Ors. in Special Leave Petition (Civil) No.25590 of 2014 has granted a sum of Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- on account of loss of estate, loss of consortium and funeral expenses respectively. The aforesaid amounts are to be enhanced at the rate of 10% in every three years.
50. In view of the abovesaid judgment, I hereby award Rs. 15,000/- towards loss of estate, Rs.40,000/- towards consortium and Rs.15,000/- towards funeral charges.
51. Therefore, in total, I hereby award a sum of Rs. 21,23,944/- (Rupees Twenty One Lakhs Twenty Three Thousand Nine Hundred and Forty Four Only) =( Rs. 20,53,944/- + Rs. 70,000/-) in favour of the claimants and against the respondents.
R E L I EF / ISSUE NO.3
52. I award Rs. 21,23,944/- (Rupees Twenty One Lakhs Twenty Three Thousand Nine Hundred and Forty Four Only) as compensation with interest at the rate of 9% per annum including interim award, if any from the date of filing the DAR/claim petition i.e. 03.07.2017 till the date of the payment of the award amount, in favour of the claimants/petitioners and against the respondents on account of their liability being joint and several.
53. As stated herein above, only the mother alone is entitled in the case of a bachelor's death as per Sarla Verma's judgment. Accordingly, Smt. Krishna Devi/Mother of the deceased is held entitled for the abovesaid award amount. However, Sh. Ghamandi who is the father of the deceased shall be given only a sum of Rs. 1 Lakh out of the abovesaid award amount and the petitioner No.2 Smt. Krishna Devi is held entitled for the entire remaining award amount.
MACT Case No. 427/17 Page No. 16/2354. The petitioners have also been examined under MCTAP on 14.01.2020 and their statement has also been considered by this Tribunal.
MODE OF DISBURSEMENT OF THE AWARD AMOUNT TO THE CLAIMANTS AS PER THE PROVISIONS OF THE 'MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE' (MCTAP).
55. This court is in receipt of the orders dated 07.12.2018 passed by the Hon'ble High Court of Delhi in FAO no. 842/2003 titled as Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors whereby the Hon'ble High Court of Delhi has formulated MACAD(Motor Accident Claims Annunity Deposit Scheme) which has been made effective from 01.01.2019. The said orders dated 07.12.2018 also mentions that 21 banks including State Bank of India is one of such banks which are to adhere to MACAD. The State Bank of India, Tis Hazari Courts, Delhi is directed to disburse the amount in accordance with MACAD formulated by the Hon'ble High Court of Delhi.
56. Keeping in view the entirety of the facts and circumstances involved in the present case and the abovesaid guidelines laid down by the Hon'ble High Court of Delhi, the respondent No.3/insurance company is directed to deposit the award amount of Rs. 21,23,944/- (Rupees Twenty One Lakhs Twenty Three Thousand Nine Hundred and Forty Four Only) as stated herein above with SBI, Tis Hazari Courts, Delhi, out of which the amount of Rs. 2,23,944/- (Rupees Two Lakhs Twenty Three Thousand Nine Hundred and Forty Four Only) shall be released to the petitioner no.2 i.e. mother of the deceased keeping in view the submissions of the Ld. Counsel for the petitioner and that of the respondents as well and in the entirety of the facts.
57. The rest of the amount of Rs. 19,00,000/- shall be kept in 190 equal monthly FDR's for the period of one month to 190 months for an amount of Rs. 10,000/- each with cumulative interest in favour of the petitioners in their abovementioned shares. However, money can be withdrawn through withdrawl slip MACT Case No. 427/17 Page No. 17/23 only.
58. The following conditions are to be adhered to by SBI, Tis Hazari Courts, Delhi with respect to the fixed deposits:-
(a) The Bank shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the claimant(s) i.e. the savings bank account(s) of the claimant(s) shall be an individual savings bank account(s) and not a joint account(s).
(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.
(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 pre-mature discharge be allowed on the fixed deposits without permission of the Court.
(f) The concerned bank shall not be 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 passbook(s) of the claimant(s) is sufficient compliance of clause (g) above.MACT Case No. 427/17 Page No. 18/23
59. In accordance with the orders dated 08.02.2019 passed by the Hon'ble High Court of Delhi in FAO no. 842/2003 in Rajesh Tyagi and others Vs. Jaibir Singh and others, Mr. Rajan Singh, Assistant General Manager has been appointed as Nodal Officer of SBI having Phone no. 022- 22741336/9414048606 and e mail ID [email protected]. In case of any assistance or non compliance, the aforesaid Nodal Officer may be contacted to. A copy of this order be sent by e-mail to the aforesaid Nodal Officer of the aforesaid bank by the Ahlmad of the Court immediately in accordance with the directions of the Hon'ble High Court as contained in the orders dated 07.12.2018. The Nodal Officer of the bank shall ensure the disbursement of the award amount within three weeks of the receipt of the e-mail as mentioned in the orders dated 07.12.2018 passed by the Hon'ble High Court of Delhi.
APPORTIONMENT OF LIABILITY
60. Ld. Counsel for the insurance company has vehemently argued that the driver of the offending vehicle was not holding any valid driving license to drive the offending vehicle on the date and time of the accident in question. Ld. Counsel for the insurance company has further argued that the respondents no.1 & 2 were not having any valid permit at the time of the accident.
61. Ld. Counsel for the insurance company has also relied upon the examination of Smt. Sunita Behl as R3W1 who has been examined in the connected matter titled as Santraj vs. Subhash & ors. Bearing MACT no. 426/17.
62. The respondent no.1 has examined Sh. Arenbo Peter, DTO, Mon, Nagaland as R1W1. This witness has stated that as per the record brought by him, the DL of Mr. Subhash was issued on 15.07.2009 and the same was endorsed for HTV, HPV (Heavy Passenger Vehicle) on 16.08.2011, valid upto 15.07.2017. R1W1 has further stated that after digitization, the said DL was MACT Case No. 427/17 Page No. 19/23 valid upto 11.05.2020 for transport and for non transport and the said DL was valid upto 14.07.2029. R1W1 has further stated that as per the record brought by him, the DL of Subhash was valid on 03.05.2017. This witness has exhibited the record brought by him as Ex.R1W1/1(OSR).
63. Perusal of Ex.R1W1/1 reveals that the DL of the respondent no.1 was valid on the date and time of the accident. Further perusal of the record of the case reveals that the respondents were having valid permit which was issued on 19.03.2017 and valid upto 19.03.2018. As such, to my mind, the insurance company has failed to prove on record that the respondent no.1 was not having any valid DL or that the respondents were not having any valid permit on the date and time of the accident. Accordingly, the insurance company is not entitled for any recovery rights against the respondents no.1 &
2.
64. Ld. Counsel for the insurance company has argued that in the other connected matter bearing MACT no. 426/17 titled as Santraj vs. Subhash & ors., recovery rights have been granted in favour of the insurance company.
65. It has to be seen that in the present matter, R1W1 Sh. Arenbo Peter has been examined by the respondents from Transport Authority, Nagaland. The said witness has categorically stated that the driving license of the respondent no.1 was valid on the date and time of the accident i.e. on 03.05.2017. In the said matter bearing MACT no. 426/17 titled as Santraj vs. Subhash & ors relied upon by the Ld. Counsel for the insurance company, the said witness R1W1 was not examined. As such, I find myself unable to agree with the submission of the Ld. Counsel for the insurance company.
66. Since the offending vehicle, was admittedly insured with the respondent no.3/Insurance Company, the respondent No.3/Insurance Company is hereby directed to deposit the award amount in favour of the petitioners with SBI, Tis Hazari Courts, Delhi within a period of 30 days from the date of passing of this award together with the interest as stated herein MACT Case No. 427/17 Page No. 20/23 above under the intimation to this court and under intimation to the petitioners. In case of any delay, it shall be liable to pay interest at the rate of 12% per annum for the period of delay.
A separate file be prepared for compliance report by the Nazir and put up the same on 25.01.2021.
A copy of this award be given to the parties free of cost. A copy of this award be sent to the concerned Ld. Metropolitan Magistrate as well as DSLSA as per the provisions of the MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE (MCTAP).
Digitally signed File be consigned to Record Room. RAJ by RAJ KUMAR Date: KUMAR 2020.12.21 15:52:24 +0530 Announced ( RAJ KUMAR ) On 16th of December, 2020 P.O. MACT (WEST-01) Delhi/ (16.12.2020) MACT Case No. 427/17 Page No. 21/23 FORM -IVA
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN DEATH CASES
1. Date of accident :- 03.05.2017
2. Name of the deceased :- Madhav
3. Age of the deceased :- 22 years
4. Occupation of the deceased :- Labour
5. Income of the deceased :- Rs.13,584/- per month as per Minimum Wages Act
6. Name, age and relationship of legal representative of deceased:-
S. Name Age Relation
No.
1. Ghamandi DOB: Father of the deceased
02.03.1967
2. Krishana DOB: Mother of the deceased
01.01.1969
Computation of Compensation
Sr. No. Heads Awarded by the Claim Tribunal
7. Income of the deceased(A) Rs.13,584/-
8. Add-Future Prospects (B) 40%
9. Less-Personal expenses 1/2rd has been deducted
of the deceased(C)
10. Monthly loss of Rs.9509
dependency[(A+B)-C=D]
11. Annual loss of dependency Rs.1,14,108/-
(Dx12)
12. Multiplier(E) 18
13. Total loss of dependency Rs.20,53,944/-
(Dx12xE= F)
14. Medical Expenses(G) NIL
MACT Case No. 427/17 Page No. 22/23
15. Compensation for loss of Rs.40,000/-
consortium(H)
16. Compensation for loss of Rs.15,000/-
estate(I)
17. Compensation towards Rs.15,000/-
funeral expenses(J)
18. TOTAL COMPENSATION Rs.21,23,944/-
(F+G+H+I+J+=K)
19. RATE OF INTEREST 9% per annum
AWARDED
20. Interest amount up to the Rs. 6,60,015.52(3 years 5 months and 13 date of award (L) days)
21. Total amount including Rs.27,83,959.52 interest (K + L)
22. Award amount released Rs.2,23,944/-
23. Award amount kept in Rs.19,00,000/-
FDRs
24. Mode of disbursement of Mentioned in the award the award amount to the claimant (s).
25. Next date for compliance 25.01.2021 of the award (RAJ KUMAR) P.O.MACT (WEST-01) Delhi (16.12.2020) MACT Case No. 427/17 Page No. 23/23 MACT Case No.427/2017 16.12.2020 Present: None.
Award has been passed separately.
File be consigned to Record Room.
A separate file be prepared for compliance report by the Nazir and put up the same on 25.01.2021.
A copy of this award be sent to the concerned Ld. Metropolitan Magistrate as well as DSLSA as per the provisions of the MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE (MCTAP). A copy of this award be sent by the Ahlmad on the e-mail address of the Nodal Officer of the bank immediately as mentioned in the award.
( RAJ KUMAR ) Judge, MACT (WEST-01) Delhi (16.12.2020) MACT Case No. 427/17 Page No. 24/23