Delhi District Court
Lalit Sharma (Lrs Of Rajrati Devi) vs Mohammad Akram on 22 April, 2024
MACP No. 308/21; FIR No. 664/20; PS. S.P. Badli DOD: 22.04.2024
IN THE COURT OF MS. RICHA MANCHANDA, PRESIDING
OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNAL,
NORTH DISTRICT, ROHINI COURTS, DELHI
MAC Petition No. 308/21
UID/CNR No. DLNT01-006959-2021
1. Sh. Lalit Sharma,
S/o Late Sh. Rajender Sharma,
(Son of deceased)
2. Sh. Sanam Sharma,
S/o Late Sh. Rajender Sharma,
(Son of deceased)
Both R/o H.No. 1032,
Gali No. 12, Libaspur,
Delhi.
3. Smt. Rekha Joshi,
W/o Sh. Madan Mohan Joshi,
R/o Y-530, Nangloi,
Janta Market,
Delhi.
(Daughter of deceased)
4. Smt. Pinky Sharma,
W/o Sh. Parveen,
R/o WZ-673,
Badiyal, Palam Village,
Delhi.
(Daughter of deceased)
..........Petitioners
VERSUS
Lalit Sharma & Ors. Vs. Mohd. Akram & Ors. Judge MACT 02(North) Page 1 of 27
MACP No. 308/21; FIR No. 664/20; PS. S.P. Badli DOD: 22.04.2024
1. Mohd. Akram,
S/o Jainuddin,
R/o Village Asara,
PS. Baghpat,
UP.
(Driver)
2. Sh. Sanjeev Malik,
S/o Sh. Shripal Malik,
R/o Gali No. 5,
Teacher Colony Mohalla,
Shamli,
UP.
(Registered owner)
3. The New India Assurance Co. Ltd.
DO No. 311200,
Connaught Place,
New Delhi.
(Insurer)
............Respondents
Date of Institution : 28.09.2021
Date of Arguments : 20.04.2024
Date of Judgment : 22.04.2024
APPEARENCE(S):
Sh. Sanjay Kumar, Ld. Counsel for petitioners.
Sh. R.R. Raju, Ld. Counsel for driver and owner.
Sh. R.K. Gupta, Ld. Counsel for insurance company.
Lalit Sharma & Ors. Vs. Mohd. Akram & Ors. Judge MACT 02(North) Page 2 of 27MACP No. 308/21; FIR No. 664/20; PS. S.P. Badli DOD: 22.04.2024 Petition under Section 166 & 140 of M.V. Act, 1988 for grant of compensation AWARD
1. By way of present judgment/award, I shall dispose of the DAR filed by the investigating agency which has been converted into a claim petition under section 166(4) of M. V. Act 1988 for grant of compensation to the petitioners who are Lrs of deceased victim namely Smt. Rajrati, aged about 51 years in the road accident on 07.10.2020 at about 8:15 AM at Siraspur to Libaspur Main Road Kh. No. 635, in front of Pal Auto Repairing Shop, Delhi. Claimants are the four major children of the deceased.
2. The concise material facts relevant to decide the present claim are that on 07.10.2020, deceased namely Rajrati Devi alongwith her brother namely Ajit Kumar was going to Libaspur, Delhi from Katlu Pur, Haryana by scooty bearing registration no. HR79B-7878. The said scooty was being driven by Ajit Kumar and deceased was sitting as pillion on it. At about 8:15 AM, when they reached at Main Road at Kh. No. 635, Pal Auto Repairing & Service, the driver of offending vehicle bearing no. UP19T-6096 which was being driven by him at a very high speed, in a rash and negligent manner, came and hit the aforesaid scooty with a great force, as a result of which, both the riders of scooty fell down on the road and Smt. Rajrati Devi received fatal injuries in the said accident. She was immediately taken to BSA Hospital, Rohini, Delhi where she was medically examined and declared 'brought dead'. A case U/s 279/304A IPC was registered at PS. S.P. Badli Lalit Sharma & Ors. Vs. Mohd. Akram & Ors. Judge MACT 02(North) Page 3 of 27 MACP No. 308/21; FIR No. 664/20; PS. S.P. Badli DOD: 22.04.2024 vide FIR No. 664/20 with regard to the accident in question. The petitioners (children of deceased) have claimed that the accident has taken place due to rash and negligent driving of aforementioned offending vehicle which was allegedly being driven by respondent no.1/driver. The offending vehicle was found to be owned by respondent no. 2 and was duly insured with respondent no. 3/New India Assurance Co. Ltd., at the time of accident in question.
3. In their joint written statement, the respondent no. 1 & 2 i.e. driver and registered owner have claimed that the alleged accident was not caused by respondent no. 1 and alleged offending vehicle has been falsely implicated in the present case. It has been further claimed that respondent no. 1 was having valid and effective driving licence at the time of accident. On merits, they have denied the averments made in the DAR and prayed for its dismissal.
4. The insurance company had filed its legal offer, whereby it offered to pay a sum of Rs. 7,64,812/- as compensation towards full and final satisfaction for the claim raised by petitioners for the fatal injuries suffered by Smt. Rajrati in the accident in question. However, the said offer was not acceptable to the petitioners in the present case. Accordingly, the DAR has been proceeded further for trial for ascertainment of the just and proper compensation, that may be granted in favour of the petitioners, for loss of precious life of their mother in the unfortunate road accident in question.
Lalit Sharma & Ors. Vs. Mohd. Akram & Ors. Judge MACT 02(North) Page 4 of 27MACP No. 308/21; FIR No. 664/20; PS. S.P. Badli DOD: 22.04.2024
5. From the pleadings of the parties and the documents, following issues were framed vide order dated 24.05.2022:-
1) Whether the deceased Smt. Rajrati Devi, W/o Late Sh. Rajender Singh suffered fatal injuries in road traffic accident on 07.10.2020 at about 8:15 AM, in front of Pal Auto Repairing Shop, Siraspur-Libaspur main Road, Khasra No. 635, within the jurisdiction of PS. Samaipur Badli due to rashness and negligence on the part of the driver Mohammad Akram/R-1, who was driving Tata LPT Canter Truck bearing registration no. UP19T-6096, owned by Sh. Sanjeev Malik/R-2 and insured with The New India Assurance Company Limited/R-3?OPP.
2) Whether the LRs of deceased are entitled to any compensation if so to what amount and from whom?
OPP.
3) Relief.
6. To substantiate their claim, petitioners have examined four witnesses i.e., Sh. Lalit Sharma (son of deceased) as PW-1, PW2 Sh. Ajit Kumar (eyewitness), PW3 Sh. Sonpal Singh, Officer, Bank of Baroda and PW4 Sh. Vikas, Sr. Accountant, Department of Telecommunication. On the other hand, no evidence was adduced by any of the respondents and RE in the matter was closed vide order dated 17.10.2022.
7. This Tribunal has carefully perused DAR, evidence led by petitioners has been duly appreciated. All documents and material relied upon perused and considered. Arguments addressed by counsels for the petitioners and insurance company considered. Legal position, both statutory and Lalit Sharma & Ors. Vs. Mohd. Akram & Ors. Judge MACT 02(North) Page 5 of 27 MACP No. 308/21; FIR No. 664/20; PS. S.P. Badli DOD: 22.04.2024 binding applicable precedents, has been appreciated. The issue wise determination is as under:-
ISSUE NO. 18. For the purpose of this issue, the testimony of PW2 Sh. Ajit Kumar (injured herein) is relevant. He deposed in his evidence by way of affidavit (Ex. PW2/1) on the lines of averments made in the DAR. He has relied upon copy of FIR and exhibited the same as Ex. PW2/1.
9. PW2 in his testimony, by way of affidavit of chief-examination (PW2/1) deposed that 07.10.2020, he alongwith deceased namely Rajrati Devi was going to Libaspur, Delhi from Katlu Pur, Haryana by scooty bearing registration no. HR79B-7878 which was being driven by him and deceased was sitting as pillion on it. He further deposed that at about 8:15 AM, when they reached at Main Road at Kh. No. 635, Pal Auto Repairing & Service, the driver of offending vehicle bearing no. UP19T-6096 which was being driven by him at a very high speed, in a rash and negligent manner, came and hit their aforesaid scooty with a great force, as a result of which, Smt. Rajrati Devi received fatal injuries. He further deposed that thereafter, he made a call at 100 number, police came and brought Smt. Rajrati Devi to BSA Hospital for treatment, where she was medically examined vide MLC No. 6471/20. A case U/s 279/304A IPC was registered against the respondent no. 1 at PS. S.P. Badli vide FIR No. 664/20 with regard to the accident in Lalit Sharma & Ors. Vs. Mohd. Akram & Ors. Judge MACT 02(North) Page 6 of 27 MACP No. 308/21; FIR No. 664/20; PS. S.P. Badli DOD: 22.04.2024 question. He categorically deposed that the accident occurred due to sole negligence of driver of offending vehicle as he was driving his vehicle in a rash and negligent manner.
10. During his cross-examination on behalf of respondents, he deposed that the accident had taken place at about 8-8:15 AM. He further deposed that there was market on both the sides of the road where the accident had taken place. He further deposed that people were coming and going from the spot of accident at the time of accident. He further deposed that there were no red light signal at the place of accident. He denied the suggestion that the accident took place due to rash and negligent driving of his scooty as he was trying to overtake the offending vehicle from the wrong side. He deposed that he himself made a call to the police at 100 number after the accident.
11. The careful perusal of testimony of aforesaid witness i.e. PW2 would go to show that the respondents have not been able to impeach his testimony through litmus test of cross-examination. Even otherwise, the testimony of aforesaid witness inspires confidence as he himself has sustained injuries due to the accident and is an eyewitness to the accident. Moreover, it is an undisputed fact that FIR No. 664/20 u/s 279/304A IPC was registered at PS. S.P. Badli with regard to accident in question. Copy of said FIR (Ex. PW2/1), would show that same was registered on 07.10.2020 i.e. on Lalit Sharma & Ors. Vs. Mohd. Akram & Ors. Judge MACT 02(North) Page 7 of 27 MACP No. 308/21; FIR No. 664/20; PS. S.P. Badli DOD: 22.04.2024 the date of accident itself on the statement of PW2 Sh. Ajit Kumar. Thus, FIR is shown to have been registered promptly and without any delay. 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.
12. Not only this, the respondent no. 1 namely Mohd. Akram (accused in State case) has been charge sheeted for the offences punishable U/s 279/304A IPC by the investigating agency after arriving at the conclusion on the basis of investigation carried out by it that the accident in question had taken place due to rash and negligent driving of offending vehicle by him. Same would also point out towards rash and negligent driving of offending vehicle by respondent no. 1.
13. 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 has 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 has taken place due to rash and negligent driving of the offending vehicle i.e. Canter bearing registration no. UP19T-6096 by the respondent no.1. There is nothing on record to show that the petitioners had any enmity with the driver of the offending vehicle so as to falsely implicate him in this case. Reliance placed on Cholamandalam MS General Insurance Co. Ltd. V. Kamlesh Lalit Sharma & Ors. Vs. Mohd. Akram & Ors. Judge MACT 02(North) Page 8 of 27 MACP No. 308/21; FIR No. 664/20; PS. S.P. Badli DOD: 22.04.2024 & Ors, MAC APP. No. 530/2008 passed by Hon'ble Delhi High Court on 11.11.2008.
14. Copy of MLC (which is part of DAR) of deceased filed would show that deceased Rajrati taken to BSA Hospital, Rohini, Delhi with alleged history of RTA on 07.10.2020 at 10:52 AM. She is shown to have sustained multiple injuries as mentioned therein. This document has not been disputed from the side of respondents.
15. Further, copy of mechanical inspection report dated 08.10.2020 (which is also part of DAR) of Canter bearing registration No. UP19T-6096 would show fresh damages i.e. its goods body left side safety guard middle lower side small portion was found scratched. Likewise, copy of mechanical inspection report dated 08.10.2020 (which is also part of DAR) of motorcycle bearing no. HR79B-7878 of victim, would show that its right front side body middle small portion was scratched; its left side body slightly scratched; its left side hand brake lever end slightly scratched. These documents have not been disputed by the respondents. Both these reports would also corroborate the testimony of PW2 to the effect that offending vehicle came and hit the scooty of victims.
16. The rash and negligent driving of the offending vehicle may be proved, either by direct evidence or by circumstances including principle of Lalit Sharma & Ors. Vs. Mohd. Akram & Ors. Judge MACT 02(North) Page 9 of 27 MACP No. 308/21; FIR No. 664/20; PS. S.P. Badli DOD: 22.04.2024 res-ipsa loquitur. The nature and manner of damage to the motorcycle of victims and the offending vehicle Canter due to collision clearly points out to rash and negligent manner of driving of offending vehicle by respondent no. 1/driver, thereby causing injuries to the deceased.
17. 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 preponderance of probabilities that deceased has sustained fatal injuries in the Motor Vehicular Accident which has occurred on 07.10.2020 at about 8:15 AM at Siraspur to Libaspur Main Road Kh. No. 635, in front of Pal Auto Repairing Shop, Delhi, due to rash and negligent driving of offending vehicle(Canter) bearing registration no. UP19T-6096 by respondent no. 1. Thus, issue no. 1 is decided in favour of petitioners and against the respondents.
ISSUE NO. 218. The petitioners who are claimants are the four major children of deceased. It is evident that the petitioners have actually suffered monetary loss and mental agony due to death of deceased. Accordingly, petitioners are entitled for just and fair compensation in the present case.
19. Section 168 of the Motor Vehicle Act 1988 enjoins upon 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 Lalit Sharma & Ors. Vs. Mohd. Akram & Ors. Judge MACT 02(North) Page 10 of 27 MACP No. 308/21; FIR No. 664/20; PS. S.P. Badli DOD: 22.04.2024 reasonable. The guiding principles for assessment of "just and reasonable compensation" in fatal case has been laid down by Hon'ble Supreme Court of India, in case titled as Smt. Anjali & Ors., Vs. Lokendra Rathod & Ors, in Civil Appeal No. 9014 of 202, decided on 06.12.2022 that: -
"The provisions of the Motor Vehicles Act, 1988 (for short, "MV Act") gives paramount importance to the concept of 'just and fair' compensation. It is a beneficial legislation which has been framed with the object of providing relief to the victims or their families. Section 168 of the MV Act deals with the concept of 'just compensation' which ought to be determined on the foundation of fairness, reasonableness and equitability. Although such determination can never be arithmetically exact or perfect, an endeavor should be made by the Court to award just and fair compensation irrespective of the amount claimed by the applicant/s. In Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr.3, this Court has laid down as under:
"16."Just compensation" is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well settled principles relating to award of compensation. It is not intended to be a bonanza, largesse or source of profit."
20. The Hon'ble Apex Court has held that the compensation should be just and is not expected to be a windfall or a bonanza nor it should be niggardly or a pittance. Reliance is placed on 2012 (8) SLT 676 titled K. Suresh Vs. New India Assurance Co. Ltd. The aforesaid Principle of law has also been reiterated by a landmark judgment of the Hon'ble Supreme Lalit Sharma & Ors. Vs. Mohd. Akram & Ors. Judge MACT 02(North) Page 11 of 27 MACP No. 308/21; FIR No. 664/20; PS. S.P. Badli DOD: 22.04.2024 court in 2017 (13) SCALE 12 : 2017 XI AD (SC) 113 titled National Insurance Co. Ltd. Vs. Pranay Sethi and Ors. Accordingly, the quantum of appropriate and adequate compensation to the victim of road accident is to be derived after assessment of various relevant parameters, as per law. Hereinafter, assessment is divided into several criteria, as applicable to the facts of the present case.
LOSS OF DEPENDENCY/LOSS TO ESTATE
21. PW1 Sh. Lalit Sharma has deposed in his evidence by way of affidavit Ex. PW1/A that deceased was aged about 51 years; she was doing tailoring work and she was getting the pension of her husband who was working in MTNL. He further deposed that deceased left behind four legal heirs i.e. two sons and two daughters and they all were already married and dependent upon the deceased.
22. During his cross examination on behalf of insurance company, he deposed that they were four siblings i.e. two brothers and two sisters including him. He further deposed that his father was predeceased to his mother. He further deposed that they all were married. He further deposed that his sisters were residing in their matrimonial home happily at the time of accident. He deposed that he was working as bike mechanic and his brother was unemployed. He further deposed that his brother has two school going children and his wife is housewife. He further deposed that his wife was also Lalit Sharma & Ors. Vs. Mohd. Akram & Ors. Judge MACT 02(North) Page 12 of 27 MACP No. 308/21; FIR No. 664/20; PS. S.P. Badli DOD: 22.04.2024 housewife. He denied the suggestion that his brother was working and gainfully employed. He deposed that his brother was 28 years old. He denied the suggestion that his deceased mother was not working at the time of accident. He further deposed that his mother was getting family pension of Rs. 25,000/- from MTNL after the death of his father. He has also filed the copy of bank statement of his deceased mother on record. He denied the suggestion that his deceased mother was not getting Rs. 25,000/- as family pension at the time of accident. He denied the suggestion that they were not financially dependent upon his deceased mother. He deposed that his mother was 7th - 8th class pass, however, he had not filed any document in this regard. He denied the suggestion that his deceased mother was illiterate. He further denied the suggestion that his deceased mother was not 55 years old at the time of accident.
23. In order to prove the fact that deceased was getting monthly pension from the department of her deceased husband, petitioners have examined PW-3 Sh. Sonpal Singh, Officer, Bank of Baroda and PW-4 Sh. Vikas, Sr. Accountant, Department of Telecommunication, Govt. of India. PW3 produced the bank account record in respect of pension to Smt. Rajrati, widow of Sh. Rajinder for the financial year 2019-20 and exhibited the said record as Ex. PW3/2(colly), showing that Smt. Rajrati got the pension till the financial year 2020. He deposed that as per rules, if a pension holder did not file "Life Certificate" in November, the pension got discontinued. During his Lalit Sharma & Ors. Vs. Mohd. Akram & Ors. Judge MACT 02(North) Page 13 of 27 MACP No. 308/21; FIR No. 664/20; PS. S.P. Badli DOD: 22.04.2024 cross-examination on behalf of insurance company, he admitted that the aforesaid account was not pension account. He volunteered that the pension comes in ordinary saving account itself that is why the pension of Smt. Rajrati Devi was being credited in her aforesaid saving bank account. He further deposed that the amount which was being credited in the account of Smt. Rajrati Devi every month did not show that same was by way of pension. He volunteered that the said amount was being received on month to month basis from Telecommunication Department. He denied the suggestion that the word "DoT" mentioned in Ex. PW3/2 did not mean "Department of Telecommunication" as the same has not been clarified therein. He further denied the suggestion that the amount credited in the account of Smt. Rajrati Devi under the head "NEFT DoT" was not the amount of pension.
24. PW-4 Sh. Vikas has deposed that deceased Rajinder Singh was a permanent employee of MTNL and his widow namely Smt.Rajrati was drawing pension vide PPO No.PC 50626 and as per record, she was paid pension in respect of her deceased husband upto November 2020. He exhibited the letter dated 22.12.2020, written by their Department to Vijaya Bank regarding recovery of excess pension amount Rs.44,360/- released to pensioner as Ex.PW4/2, duly certified by ACCA at point A. He also exhibited the duly certified copy of Master Data of Pension in respect of Late Shri Rajinder Singh (PPO No.PC50626) as Ex.PW4/3, bearing signature of Shri Banwari Lal, ACCA at point A. He further exhibited the duly certified Lalit Sharma & Ors. Vs. Mohd. Akram & Ors. Judge MACT 02(North) Page 14 of 27 MACP No. 308/21; FIR No. 664/20; PS. S.P. Badli DOD: 22.04.2024 copy of Pension Ledger Card (Pension Type: Family Pension) for the Financial Year 2020-21 in respect of Smt.Rajrati, W/o Late Shri Rajinder Singh as Ex.PW4/4, bearing signature of Shri Banwari Lal, ACCA at point A. He further deposed that Smt. Rajrati was drawing family pension of Rs.25,003/- per month and drew the same upto November' 2020. He further exhibited the duly certified copy of Death Certificate of Smt.Rajrati Devi, W/o Late Shri Rajinder Singh as Ex.PW4/5, bearing signature of Shri Banwari Lal, ACCA at point A. During his cross-examination on behalf of insurance company, he deposed that excess payment of Rs.44,360/- had still not been received by their Department from the concerned Bank. He further deposed that except issuance of Letter Ex.PW4/2, they had not initiated any other action against the petitioner(s) or the concerned bank in this regard. He denied the suggestion that they did not initiate any other action as the aforesaid amount of Rs.44,360/- was in respect of family pension. He further denied the suggestion that the documents brought by him on that day were forged and fabricated ones. He deposed that he did not know whether the legal heirs of Late Smt.Rajrati had withdrawn the aforesaid excess amount of Rs.44,360/- from the concerned bank.
25. After referring to the ocular testimonies of PW3 & PW4 and the documents brought on record, Ld. counsel for petitioners argued that all the petitioners being married children of deceased, should be considered as financially dependent upon deceased in order to calculate the loss of Lalit Sharma & Ors. Vs. Mohd. Akram & Ors. Judge MACT 02(North) Page 15 of 27 MACP No. 308/21; FIR No. 664/20; PS. S.P. Badli DOD: 22.04.2024 dependency and appropriate amount should be awarded to them under this head. On the other hand, Ld. counsel for insurance co vehemently argued that petitioners being married and major children of deceased, cannot be termed as financially dependent upon income/pension of deceased and thus, loss to estate should be awarded in this case.
26. After bestowing my thoughtful consideration to the respectful submissions made on behalf of both the sides, I agree with the contentions made on behalf of insurance company. It is an admitted fact that petitioners no. 3 & 4 were already married prior to the date of accident and they both were living at their respective matrimonial house at the time of accident. That being so, they cannot be termed as financially dependent upon the income of deceased. Thus, they are at the most are entitled to loss to estate under the law. Now, a question arises that whether the major sons who are also married gainfully employed or earning, are entitled for compensation under the Motor Vehicles Act, 1988 or not. In case titled " National Insurance Co. Ltd. Vs. Birender & Ors.", passed in CIVIL APPEAL NOS. 242243 OF 2020 (Arising out of SLP (Civil) Nos. 976977 of 2020), decided on 13.01.2020 by Hon'ble Supreme Court, the Hon'ble Court discussed the said fact and has been pleased to hold as under:
"14. The legal representatives of the deceased could move application for compensation by virtue of clause
(c) of Section 166(1). The major married son who is also earning and not fully Dependant on the Lalit Sharma & Ors. Vs. Mohd. Akram & Ors. Judge MACT 02(North) Page 16 of 27 MACP No. 308/21; FIR No. 664/20; PS. S.P. Badli DOD: 22.04.2024 deceased, would be still covered by the expression "legal representative" of the deceased.
Reliance is placed on Manjuri Bera v. Oriental Insurance Co. Ltd. & Anr., Appeal (civil) 1702 of 2007, decided on 30.03.2007. In the said case, Hon'ble Apex Court had expounded that liability to pay compensation under the Act does not cease because of absence of dependency of the concerned legal representative.
Notably, the expression "legal representative" has not been defined in the Act. In Manjuri Bera (supra), the Court observed as under:-
"9. In terms of clause (c) of subsection (1) of Section 166 of the Act in case of death, all or any of the legal representatives of the deceased become entitled to compensation and any such legal representative can file a claim petition. The proviso to said subsection makes the position clear that where all the legal representatives had not joined, then application can be made on behalf of the legal representatives of the deceased by impleading those legal representatives as respondents. Therefore, the High Court was justified in its view that the appellant could maintain a claim petition in terms of Section 166 of the Act.
10. The Tribunal has a duty to make an award, determine the amount of compensation which is just and proper and specify the person or persons to whom such compensation would be paid. The latter part relates to the entitlement of compensation by a person who claims for the same.
11. According to Section 2(11) CPC, "legal representative"
means a person who in law represents the estate of a Lalit Sharma & Ors. Vs. Mohd. Akram & Ors. Judge MACT 02(North) Page 17 of 27 MACP No. 308/21; FIR No. 664/20; PS. S.P. Badli DOD: 22.04.2024 deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued. Almost in similar terms is the definition of legal representative under the Arbitration and Conciliation Act, 1996 i.e. under Section 2(1)(g).
27. It has been also discussed in the aforesaid judgment titled National Insurance Co. Ltd. Vs. Birender(supra) in the relevant para that Section 166 of the Act provides for filing of application for compensation by persons mentioned in clauses (a) to (d) of subSection (1) thereof. Section 166 of the Act, as applicable at the relevant time, reads thus:
"Section 166. Application for compensation:-
(1) An application for compensation arising out of an accident of the nature specified in subsection (1) of section 165 may be made
(a) by the person who has sustained the injury; or
(b) by the owner of the property; or
(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or
(d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be:
28. It is relevant to mention here that petitioners have claimed that there were four dependents upon deceased i.e. four major children of deceased. As discussed above, it can be safely presume that there were only two dependants i.e. two sons of deceased at the time of accident as they were Lalit Sharma & Ors. Vs. Mohd. Akram & Ors. Judge MACT 02(North) Page 18 of 27 MACP No. 308/21; FIR No. 664/20; PS. S.P. Badli DOD: 22.04.2024 earning meagre amount at the time of accident. In view of the same, it is held that there were only two dependents upon the deceased at the time of accident and there has to be deduction of one third as held in the case of Sarla Verma mentioned supra.
29. Now, the question arises as to how to compute the income of deceased of deceased. The deceased was lastly drawing pension of Rs. 25,003/- per month at the time of accident. This fact stands proved from the testimony of PW-4. Even otherwise, this fact has not been disputed by insurance company throughout the inquiry and the documents produced by relevant witnesses i.e. PW3 & PW4 have also not been disputed from its side and no evidence in rebuttal has been led on its behalf on this aspect. It is pertinent to mention here that petitioners have not filed any document in respect of earning and income of deceased at the time of accident. In these facts and circumstances, I am inclined to take monthly pension of deceased i.e. Rs. 25,000/-(rounded off) as her income at the time of accident.
30. It is established from record that deceased was aged 51 years at the time of accident. This fact stands established from copy of Pension Form (Ex. PW4/3) of deceased, wherein her date of birth is mentioned as 01.01.1969. The date of accident is 07.10.2020. Thus, the age of deceased is accepted as 51 years as on the date of accident. Hence, the multiplier of 11 would be applicable in view of the case "Sarla Verma Vs. Delhi Transport Corporation", 2009 ACJ 1298 SC which has been reaffirmed by the Lalit Sharma & Ors. Vs. Mohd. Akram & Ors. Judge MACT 02(North) Page 19 of 27 MACP No. 308/21; FIR No. 664/20; PS. S.P. Badli DOD: 22.04.2024 pronouncement made by Constitutional Bench of Apex Court in the case titled as "National Insurance Company Ltd. Vs. Pranay Sethi & Ors.", passed in SLP(Civil) No. 25590/14 decided on 31.10.17.
31. For the purpose of future prospects, Hon'ble Supreme Court of India in Pranay Sethi's case (supra) has been pleased to discuss the applicable aspects of law pertaining to "additions" in the minimum wages on account of "inflation" for computation of compensation. It has been held by Hon'ble Apex Court in the afore-cited case that aspect of future prospects shall be a relevant consideration in computation of just and proper compensation even in cases where the deceased was self- employed. The guiding parameters laid down in Pranay Sethi's case (supra) have been reiterated by Hon'ble High Court of Delhi in appeal bearing MAC APP No. 798/2011 titled as Bajaj Allianz General Insurance Company Ltd. V. Pooja & Ors., decided on 02.11.17, allowing the addition of 10% on account of future prospects in such cases where the age of deceased was between 50 to 60 years, if self-employed category. The addition on account of future prospects shall be 10% of the income of deceased.
32. The monthly income of the deceased has been computed herein- above in para no. 31 of this judgment. As discussed, the deceased had two dependents i.e. two sons of deceased. Accordingly, as per law, one third is to be deducted towards personal and living expenses of the deceased from his Lalit Sharma & Ors. Vs. Mohd. Akram & Ors. Judge MACT 02(North) Page 20 of 27 MACP No. 308/21; FIR No. 664/20; PS. S.P. Badli DOD: 22.04.2024 income as held in the case of Sarla Verma mentioned supra. Thus, the total of loss of dependency would come out to Rs. 24,20,000/- (Rs. 25,000/- X 2/3 X 110/100 X 12 X 11). Hence, a sum of Rs. 24,20,000/- is awarded under this head in favour of the petitioners no. 1 & 2.
LOSS OF LOVE & AFFECTION
33. Now considering the prayer of petitioners for grant of compensation on account of "Loss of Love & Affection" the binding legal position has been laid down by the celebrated judgment of Pranay Sethi's case (supra) and recent judgment titled New India Assurance Company Limited V. Somwati & Ors., Civil Appeal no. 3093 of 2020 dated 07.09.2020 of Supreme Court of India wherein it has been held that the petitioners are not entitled to be compensated under this head. Further, the Hon'ble High Court of Delhi in appeal titled as Pooja's case (supra), has been pleased to observe in para 18 of the judgment that the constitution bench decision in Pranay Sethi's case (supra) does not recognize any other non-pecuniary head of damages. Hence, no amount of compensation is being awarded under this head.
LOSS OF CONSORTIUM
34. In view of the judgment of Hon'ble Supreme Court of India in case titled as, Pranay Sethi case (supra), the Tribunal considers that both the petitioners i.e. parents of deceased are entitled for payment of Rs. 40,000/-
Lalit Sharma & Ors. Vs. Mohd. Akram & Ors. Judge MACT 02(North) Page 21 of 27MACP No. 308/21; FIR No. 664/20; PS. S.P. Badli DOD: 22.04.2024 each towards "loss of consortium". By way of pronouncement of Pranay Sethi case (supra), the Hon'ble Supreme Court of India has been pleased to hold that there shall be an increase of 10% on account of 'inflation' after a period of three years. Applying, the afore-cited binding law the The Hon'ble High Court of Delhi in National Insurance Co. Ltd. Ltd. V. LR's of Sukhbir Singh, MAC. APP. 518/2013 vide judgment pronounced on 13.07.2023 has been pleased to direct the entitlement of dependents to 10% increase under this head, though, the date of accident was of 2011 and the date of impugned award was of 2013. Accordingly, all the petitioners are entitled to a sum of Rs. 44,000/- (40,000+10%) each towards "loss of consortium".
LOSS OF ESTATE & FUNERAL EXPENSES
35. 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 Pranay Sethi (supra) which has been re-enforced in LR's of Sukhbir Singh (supra), the Tribunal considers that all the petitioners are also entitled for payment of Rs. 16,500/- (15,000+10%) on account of "loss of estate" and for equal payment of Rs. 16,500/- (15,000+10%) towards "funeral expenses".
36. Therefore, on the basis of the above discussion, the compensation is quantified as below:
1. Loss of dependency Rs. 24,20,000/-Lalit Sharma & Ors. Vs. Mohd. Akram & Ors. Judge MACT 02(North) Page 22 of 27
MACP No. 308/21; FIR No. 664/20; PS. S.P. Badli DOD: 22.04.2024
2. Loss of Consortium Rs. 1,76,000/-
3. Loss of Estate & Funeral Rs. 33,000/-
Expenses
Total Rs. 26,29,000/-
37. 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 since it had no statutory defence. It is nowhere the case of insurance company that any term or condition of insurance policy was breached/violated by insured. During the course of arguments, counsel for insurance company fairly conceded that insurance company has no statutory defence in this case and legal offer was given to the petitioners which was not acceptable to them. Keeping in view the existence of valid insurance policy of the offending vehicle for the relevant period and in the absence of any statutory defences available to the insurance company, insurance company concerned is legally liable to pay the compensation amount to the petitioners. Issue no. 2 is decided accordingly.
ISSUE NO. 3 RELIEF
38. In view of my finding on issues no. 1 & 2, I award a sum of Rs. 26,29,000/- (including interim award amount, if any) alongwith interest @ 7.5% per annum w.e.f date of filing the claim petition i.e. 28.09.2021 (except for the period of delay w.e.f. 03.01.2023 to 11.05.2023) Lalit Sharma & Ors. Vs. Mohd. Akram & Ors. Judge MACT 02(North) Page 23 of 27 MACP No. 308/21; FIR No. 664/20; PS. S.P. Badli DOD: 22.04.2024 till the date of its realization, in favour of Lrs of deceased/petitioners and against the respondents. (Reliance placed on United India Insurance Co. Ltd. V. Baby Raksha & Ors, MAC APP. No. 36/2023 passed by Hon'ble Delhi High Court on 21.04.2023).
APPORTIONMENT
39. Statement of petitioners in compliance of directions of Hon'ble High Court of Delhi in FAO No. 842/2023 in case titled Rajesh Tyagi & Ors. V. Jaibir Singh & Ors., decided on 08.01.2021 as per clause 29 of MCTAP were recorded on 03.01.2023. In view of their statements and keeping in view the facts and circumstances of the case, it is hereby ordered that out of the award amount, the petitioner no. 1 & 2 namely Sh. Lalit Sharma and Sh. Sanam Sharma (both sons of deceased) shall be entitled to share amount of Rs. 12,64,500/- each (Rupees Twelve Lakhs Sixty Four Thousand and Five Hundred Only) alongwith proportionate interest and the petitioner no. 3 & 4 namely Smt. Rekha Joshi and Smt. Pinky Sharma (Daughters of deceased) shall be entitled to share amount of Rs. 50,000/- each (Rupees Fifty Thousand Only) alongwith proportionate interest.
40. Out of share amount of petitioner no. 1 & 2, a sum of Rs. 3,64,500/- each (Rupees Three Lakhs Sixty Four Thousand and Five Hundred Only) is directed to be immediately released to them through their respective MACT bank accounts only and remaining amount is directed to Lalit Sharma & Ors. Vs. Mohd. Akram & Ors. Judge MACT 02(North) Page 24 of 27 MACP No. 308/21; FIR No. 664/20; PS. S.P. Badli DOD: 22.04.2024 be kept in the form of FDRs in the multiples of Rs. 30,000/- each for one month, two months, three months and so on and so forth, having cumulative interest.
41. The entire share amounts of petitioner no. 3 & 4 is directed to be immediately released to them through their respective bank accounts, as per rules.
42. 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.
(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.
Lalit Sharma & Ors. Vs. Mohd. Akram & Ors. Judge MACT 02(North) Page 25 of 27MACP No. 308/21; FIR No. 664/20; PS. S.P. Badli DOD: 22.04.2024
(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.
(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.
43. Respondent no. 3/New India Assurance Co. Ltd., is directed to deposit the award amount with SBI, 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 Lalit Sharma & Ors. Vs. Mohd. Akram & Ors. Judge MACT 02(North) Page 26 of 27 MACP No. 308/21; FIR No. 664/20; PS. S.P. Badli DOD: 22.04.2024 Court Branch is directed to transfer the respective share amounts immediately to aforesaid petitioners in their respective 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 & Form XVII in terms of MCTAP are annexed herewith as Annexure-A. Copy of order be also sent to concerned M.M and DLSA as per clause 31 and 32 of MCTAP.
Digitally signed by RICHA RICHA MANCHANDA
MANCHANDA Date:
Announced in the open 2024.04.22
14:35:41 +0300
Court on 22.04.2024
(RICHA MANCHANDA)
Judge MACT-2 (North)
Rohini Courts, Delhi
Lalit Sharma & Ors. Vs. Mohd. Akram & Ors. Judge MACT 02(North) Page 27 of 27