Delhi District Court
Savita vs Sunil Kumar on 10 November, 2023
IN THE COURT OF SH.SHAILENDER MALIK, PRESIDING
OFFICER: MOTOR ACCIDENT CLAIMS TRIBUNAL-02,
SHAHDARA, KARKARDOOMA COURTS, DELHI
MACT No.1552/2016
(1)Savita
w/o Late Sh.Rajesh Kumar Sharma
(2)Rajbala
w/o Sh.Kali Ram
(3)Ruchi
d/o Late Sh.Rajesh Kumar Sharma
(4)Rakhi
d/o Late Sh.Rajesh Kumar Sharma
(5)Vishal
s/o Late Sh.Rajesh Kumar Sharma
(6)Rohit
s/o Late Sh.Rajesh Kumar Sharma
All R/o 47, Navin Puri, Loni
Loni Dehat, Loni, Ghaziabad, UP-201102. ...Petitioners
Versus
(1)Sunil Kumar
s/o Sh.Hari Singh
R/o C-68, Pocket-C, LIG Flats,
GTB Enclave, Delhi-110093.
(2)Rajneesh
s/o Sh.Jeevan Ram
R/o 29, Daya Nagar, Near Jain Mandir,
60ft Road, Alwar, Rajasthan
(3)National Insurance Company Ltd.
MACT No.1552/2016 Page 1
10, Flat No.101-106, N-1 BMC House,
Connaught Place, New Delhi-110001. ...Respondents
Date of Institution : 01.06.2015
Date of Arguments : 27.10.2023
Date of pronouncement : 10.11.2023
AWAR D
1. This is claim petition filed u/s 166 and 140 M.V. Act for claim of compensation regarding death of deceased Rajesh Kumar Sharma. As per the facts on 19.02.2015 at about 9.30 p.m. deceased was going to his house after finishing work by a motorcycle bearing registration no. DL- 13SB-0611 with due caution and correct side of road. At the same time a car bearing registration no. RJ-02CB-8286 came from back side and hit the deceased with great force being driven by its driver in rash and negligent manner and at a very high speed. Due to such impact deceased fell down on the road along with his motorcycle and sustained multiple injuries to his head and various other injuries to his body. Deceased died on the spot and police officials preserved the dead body of deceased at Hindon mortuary where post mortem on his dead body was conducted. In respect of accident in question, FIR No.177/2015 was registered in PS Sahibabad, Ghaziabad, UP, for offence under Section 279, 337, 304A IPC. As per police report offending vehicle i.e. car no. RJ-02CB-8286 was being driven by respondent no.1 and owned by respondent no.2. Offending vehicle was found to be insured with National Insurance Company Ltd. (respondent no.3).
2. A joint WS was filed by respondent no.1 and 2 to the claim petition taking an objection that respondent no.1 has been falsely implicated in the accident case and that no accident has been caused by MACT No.1552/2016 Page 2 respondent no.1. As such the present claim petition is without any cause of action against respondent no.1 and 2. It is stated that respondent no.1 had valid driving licence therefore insurance company is liable to pay compensation to petitioners. It is stated that FIR has been registered on wrong information. It is stated that no accident as alleged has taken place and R1 and R2 have been falsely implicated as they have nothing to do with the said accident while the police on wrong information implicated them in the present case.
3. Respondent no.3/National Insurance Company Limited filed the WS taking the objection that this Tribunal has no jurisdiction to entertain the present petition as accident took place at Uttar Pradesh, FIR was lodged at Sahibabad (Ghaziabad), UP and petitioners/deceased were also residents of UP, driver, owner and insurance company are also of out o Delhi. It is stated that R3 is not liable to pay the compensation unless it is proved that driver of the offending vehicle was holding valid and effective licence at the time of alleged accident. It is stated that accident happened due to negligence of driver of motorcycle no.DL-13SV-0611. It is stated that offending vehicle no. RJ-02CB-8286 was duly insured with it in the name of Rajnish vide policy no.35101031146135307851 for the period 21.08.2014 to 20.08.2015. It is stated that manner in which alleged accident is stated to have occurred is wrong and concocted.
4. On the basis of pleadings of parties, ld. Predecessor of this Tribunal framed following issues on 27.11.2015 :
1)Whether respondent no.1 was driving vehicle bearing no.RJ-
02CB-8286 on 19.02.2015 at 9.30 pm in front of Koyal Enclave, PS Sahibabad, Distt. Ghaziabad in a high speed and in a rash and negligent manner and hit against motorcycle bearing no. DL-13SB- 0611 as a result motorcycle rider i.e. Rajesh Kumar Sharma fell MACT No.1552/2016 Page 3 down and sustained injuries and succumbed to the injuries? OPP (2)Whether the petitioner is entitled for any compensation, if so and for what amount? OPP (3)Relief.
5. By order dated 27.11.2015 itself ld. Predecessor of this Court awarded interim amount of compensation of Rs.50,000/- with interest @ 9% to the petitioners. As reflected from order dated 25.05.2016 amount of interim award was received and same was ordered to be released to the petitioners.
6. In order to substantiate its case petitioners examined two witnesses. PW1 is Smt.Savita wife of deceased and PW2 is Mahendra Singh who is stated to be an eye witness of the accident. Respondent no.3/insurance company has examined one witness R3W1 retired SI Om Prakash, IO of criminal case.
7. I have heard Ms.Sulekha Thakur, ld. Counsel for petitioner, Sh.Rahul Tomar, ld. counsel for respondent no.1 and 2 as well as Sh.S.C. Sharma, ld. Counsel for respondent no.3/insurance company. I have also gone through written submissions filed on behalf of R3/insurance company. Issue No.1
8. It is the settled proposition of law that an action founded on the principle of fault liability, the proof of rash and negligent driving of the offending vehicle is sine qua non. However, the standard of proof is not as strict as applied in criminal cases and evidence is to be tested on the touchstone of preponderance of probabilities. Holistic view is to be taken while dealing with the Claim Petition based upon negligence. Strict rules of evidence are not applicable in an inquiry conducted by the Claims Tribunal. Reference may be made to the judgments titled as New India Assurance MACT No.1552/2016 Page 4 Co. Ltd. v. Sakshi Bhutani & Others., MAC APP. No. 550/2011 decided on 02.07.2012, Bimla Devi & Others v. Himachal Road Transport Corporation & Others (2009) 13 SC 530, Parmeshwari v. Amirchand & Others 2011 (1) SCR 1096 & Mangla Ram v. Oriental Insurance Company Ltd. & Others 2018, Law Suit (SC) 303.
9. In the facts of the present case PW1 Smt.Savita in her deposition has testified that her husband met with a road side accident on 19.02.2015 with car no.RJ-02-CB-8286. PW1 was obviously not an eye witness. PW1 however in her evidence proved certified copy of criminal case record as Ex.PW1/C (colly.).
10. Petitioner examined PW2 Mahender Singh as an eye witness who deposed that on 19.02.2015 he was riding his motorcycle no.UP-14- CB-1653 and was going from Gagan Vihar to his house. PW2 stated that at about 9-9.15 pm, he reached near Koya enclave, just ahead of Bhopura, one motorcycle was going ahead of him and one car bearing no.RJ-02CB-8286 was trying to overtake the said motorcycle from left side, as a result car hit against the motorcycle going ahead of PW2. PW2 stated that the car driver accelerated the speed at the time of overtaking the motorcycle and bike rider fell down, sustained injuries and succumbed to injuries on the spot. PW2 stated that car driver fled from the spot along with car. PW2 informed the police at Chowky Tila More, near Bhopura. He stated that accident has taken place due to negligence of the car driver.
11. During cross-cross-examination PW2 stated that he can identify the driver of the car. He denied that accident has taken place due to negligence of motorcycle rider. He further stated that police recorded his statement after 4-5 days of accident. His address was taken by the police when he informed police chowki after the accident. He admitted that he MACT No.1552/2016 Page 5 left the deceased at the spot and went to inform the police. He further stated that it was night time, there was no street light and that car was in between his (PW2) motorcycle and motorcycle of deceased. The car was at a distance of 4-5 meters from his motorcycle. He denied that deceased was known to him.
12. R3/insurance company has examined R3W1 SI Om Prakash who deposed that on 20.02.2015 he got lodged the FIR and investigation was marked to him. He recorded statement of Subhash Chand and in FIR name of driver and number of offending vehicle is mentioned. He stated that on 24.02.2015 he further investigated the case but there was no clue regarding the offending vehicle. On 26.02.2015 he recorded statement of witness of punchnama. On 02.03.2015 he had taken PM report of deceased, on 18.03.2015 he got mechanical inspection of vehicle being driven by deceased. PW R3W1 stated that during investigation one informer (mukhbir) informed that the vehicle involved in accident dated 19.02.2015 was bearing no. RJ-02CV 8286, owned by Rajnish Kumar and driver of vehicle at the time of accident was Sunil. Witness further stated that he was further informed that Sunil was going go to his village and caused the accident on the way which was witnessed by one Mahender s/o Dharam Singh who was behind the offending vehicle at the time of accident. R3W1 recorded statement of Mahender on 28.04.2015. He proved copy of case diary as Ex.R3W1/A.
13. Ld. counsel for insurance company/respondent no.3 submitted that involvement of offending vehicle no. RJ-02CB-8286 came only on the basis of involvement in the criminal case and in this regard one witness R3W1 who has also stated in his evidence that on the basis of information given by informer/Mukhbir the offending vehicle was involved in the MACT No.1552/2016 Page 6 criminal case.
14. Having considered the submissions and going through the evidence of R3W1, the fact that involvement of offending vehicle has been made belatedly in the investigation of criminal case on the basis of information given by secret informer, ipso facto cannot be considered to be a reason for concoction or fraudulent involvement of vehicle when nothing has come on the judicial record. It is matter of record that driver/ respondent no.1 of the offending vehicle bearing no.RJ-02CB-8286 faced prosecution in the criminal case. Certified copy of criminal case documents are on record. Moreover PW2 is the eye witness who also deposed consistently regarding the manner in which accident taken place. Thus on the basis of evidence of PW2 coupled with documents on record, there is sufficient evidence available on record to prove that accident has taken place due to rash and negligent driving of respondent no.1. Issue thus decided in favour of petitioner and against the respondents. Issue No.2
15. In view of the finding on issue no.1, petitioners are entitled to get compensation, however, the quantum of compensation still needs to be adjudicated. Section 168 of Motor Vehicles Act, 1988 enjoins upon the claim Tribunal to hold an inquiry into the claim to make an award determining the amount of compensation, which appears to be just and reasonable. As per settled law, compensation is not expected to be windfall or a bonanza nor it should be pittance. A man is not compensated for the physical injury, he is compensated for the loss which he suffers as a result of that injury (Baker v. Willoughby (1970) Ac 467 at page 492 per Lord Reid).
MACT No.1552/2016 Page 7 COMPUTATION OF COMPENSATION
16. The present case pertains to the death of deceased Rajesh Kumar Sharma. In death cases, the guidelines for computation of compensation have been laid down by Hon'ble Supreme Court in case of Sarla Verma and Others v. Delhi Transport Corporation & Anr. (2009) 6 Supreme Court Cases 121. Further, the guidelines have been reiterated by the Constitution Bench of Hon'ble Supreme Court in a case titled as National Insurance Company vs. Pranay Sethi & Ors. Decided on 31.10.2017, laying down the general principles for computation of compensation in death cases. The relevant paras of the judgment are reproduced here as under:
"18. Basically only three facts need to be established by the claimants for assessing compensation in the case of death:
(a) age of the deceased;
(b) income of the deceased; and
(c) the number of dependents.
These issues to be determined by the Tribunal to arrive at the loss of dependency are:
(i) additions/ deductions to be made for arriving at the income;
(ii) the deduction to be made towards the personal living expenses of the deceased; and
iii) the multiplier to be applied with reference to the age of the deceased.
If these determinations are standardized, there will be uniformity and consistency in the decisions. There will be lesser need for detailed evidence. It will also be easier for the insurance companies to settle accident claims without delay.
19. To have uniformity and consistency, the Tribunals should determine compensation in cases of death, by MACT No.1552/2016 Page 8 the following well-settled steps:
Step-1 (Ascertaining the multiplicand) The income of the deceased per annum should be determined. Out of the said income a deduction should be made in regard to the amount which the deceased would have spent on himself by way of personal and living expenses. The balanc expired e which is considered to be the contribution to the dependent family, constitutes the multiplicand.
Step-2 (Ascertaining the multiplier) Having regard to the age of the deceased and period of active career, the appropriate multiplier should be selected. This does not mean ascertaining the number of years he would have lived or worked but for the accident. Having regard to several imponderables in life and economic factors, a table of multipliers with reference to the age has been identified by this Court. The multiplier should be chosen from the said table with reference to the age of the deceased.
Step-3 (Actual Calculation) The annual contribution to the family(multiplicand) when multiplied by such multiplier gives the 'loss of dependency' to the family.
Thereafter, a conventional amount in the range of Rs.5,000/- to Rs.10,000/- may be added as loss of estates. Where the deceased is survived by his widow, another conventional amount in the range of Rs.5,000 to Rs.10,000 should be added under the head of loss of consortium. But no amount is to be awarded under the head of pain, suffering or hardship caused to the legal heirs of the deceased.
The funeral expenses, cost of transportation of the body (if incurred) and the cost of any medical treatment of the deceased before death (if incurred) should also be added."
MACT No.1552/2016 Page 9
17. Therefore, in view of the aforesaid judgment, it is essential to take into consideration the following parameters:-
PECUNIARY DAMAGES:
Age of deceased :
18. In claim petition age of the deceased is mentioned as 42 years at the time of his death. PW1 Savita wife of deceased in her affidavit has proved copy of PAN card of deceased as Ex.PW1/B. Perusal of copy of PAN card Ex.PW1/B shows that date of birth of deceased was 15.08.1972.
This fact is not much of any dispute either in pleadings or in evidence. Thus PAN Card Ex.PW1/B of deceased duly establishes that deceased at the time of his death was 42 years 06 months of age.
Assessment of Income of deceased :
19. Petitioner (PW1) in her deposition stated that her deceased husband was a carpenter, working as a self employed and used to earn Rs.25,000/- per month.
20. Ld. counsel for respondent no.3/insurance company has submitted that no evidence has been led by petitioner in support of her claim that deceased used to earn Rs.25,000/- per month and was working as carpenter as claimed. He further submitted that even petitioners have not brought any evidence on record to show that deceased was resident of Delhi.
21. Having taken into consideration the evidence of PW1 on record, PW1 though claims that her husband was earning Rs.25,000/- per month at the time of accident and was working as carpenter being self employed. During cross-cross-examination PW1 stated that her husband was carpenter and he had a shop of furniture on rent. But she admits that she has not filed any document regarding income proof of her husband.
MACT No.1552/2016 Page 10 Though she stated that her husband used to give her Rs.15-20,000/- per month for household expenses. She also stated that she has not filed any documentary proof regarding rented shop of her husband. She stated that she has not filed any documentary proof regarding the expenses.
22. The petitioners have filed the instant claim petition being residents of Ghaziabad, UP. PW1 in her examination in chief has also proved documents of residence i.e. copy of Aadhar cards Ex.PW1/A. Perusal of these documents show that all the petitioners are residents of Ghaziabad UP. No document has been placed on record to show that deceased was residing in Delhi or that he was working in Delhi. Present claim petition has been filed within the jurisdictional courts of Delhi on the ground that registered office of R3/insurance company is in Delhi. In the absence of any proof of residence of deceased in Delhi or that he was employed or working in Delhi, this Tribunal finds that income of the deceased would be considered to be at the parity with minimum wages for unskilled labour as prevalent in the State of U.P. as accident took place in UP. Thus the income of the deceased found to be Rs.246.75 per day i.e. Rs.7402.50 per month.
Application of Multiplier:
23. As held above, deceased was 42 years of age at the time of accident. An appropriate multiplier has to be determined for computation of compensation. The judgment titled as Sarla Verma v. DTC (2009) 6 SCC 121 is relevant to consider the multiplier. In Para 21 of the judgment, the guidelines for the multiplier were laid down in accordance with age are as under:
MULTIPLIER AGE GROUP OF DECEASED
MACT No.1552/2016 Page 11
M-18 Age group between 15 to 20 & 21
to 25 years)
M-17 Age group between 26 to 30 yrs
M-16 Age group between 31 to 35 yrs
M-15 Age group between 36 to 40 yrs
M-14 Age group between 41 to 45 yrs
M-13 Age group between 46 to 50 yrs
M-11 Age group between 51 to 55 yrs
M-9 Age group between 56 to 60 yrs
M-7 Age group between 61 to 65 yrs
M-5 Age group between 66 and above
24. In view of the above, multiplier of 14 has to be applied against 42 years of age of the deceased to determine the compensation. Future Prospects:
25. This issue was considered by the Hon'ble Supreme Court in the case of Pranay Sethi & Others (Supra). Relevant parts of the judgment are reproduced here as under:
"(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 MACT No.1552/2016 Page 12 method of computation. The established income means the income minus the tax component."
26. The deceased can be considered a temporary employee. In view of the above said judgment, an addition of 25% of the income of deceased (aged 42 years) has to be considered towards future prospects. Deduction towards Personal Living Expenses:
27. After choosing the age, multiplier and income of the deceased, necessary deductions have to be made out of the income of the deceased towards his personal expenses. Hon'ble Supreme Court in case titled as Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65, in para 30, laid down the necessary deductions towards personal living and expenses of deceased as under :
Deductions out of earning of the Number of
deceased dependents
Where dependent is 1 Half
Where the number of dependent family 1/3rd
members is 2 to 3
Where the number of dependent family 1/4th
members is 4 to 6
Where the number of dependent family 1/5th
members exceeds 6 (six)
28. Instant claim petition has been filed by six petitioners i.e. widow and children as well as mother of deceased. Since, the deceased was survived by six dependents, one-fourth of the income of the deceased is to be deducted towards his personal living expenses.
MACT No.1552/2016 Page 13 NON-PECUNIARY DAMAGES:
29. In case of Pranay Sethi (Supra), a compensation of Rs.40,000/-, 15,000/- and Rs.15,000/- respectively has been fixed on account of loss of consortium, loss of estate and funeral expenses and further, it is required to be enhanced @ 10% in every three years. Therefore, a compensation of Rs.44,000/-, 16,500/- and Rs.16,500/- respectively on account of loss of consortium, loss of estate and funeral expenses is required to be granted. Further, in view of recent decision of Hon'ble Supreme Court in the case titled as United India Insurance Co. Ltd. Vs. Satinder Kaur @ Satwinder Kaur & Ors., Civil Appeal no. 2705 of 2020, decided on 30.06.2020, loss of consortium has to be fixed for each of the LRs. Since, the deceased was survived by six legal heirs, therefore, the claimants are entitled to a sum of Rs.2,97,000/- (44,000 X 6 + 16,500 + 16,500) under this head.
30. Considering the aforementioned factors, the total compensation is calculated as under:
S. No. Head Amount Awarded 1. Monthly income of deceased (A) Rs.7402.50 2. Add future prospect (B) @ 25% Rs.1,851/-
3. Less 1/4th towards personal and living Rs.2,313/-
expenses of the deceased (C)
4. Monthly loss of dependency (A+B)- Rs.6,940.50 C=D
5. Annual loss of dependency (Dx12) Rs.83,286/-
6. Multiplier (E) 147. Total loss of dependency (Dx12xE=F) Rs.11,66,004/-
8. Compensation for loss of consortium Rs.2,64,000/-
MACT No.1552/2016 Page 14
(44,000 X 6) (G)
9. Compensation for loss of estate (H) Rs.16,500/-
10. Compensation for funeral expenses (I) Rs.16,500/-
11. Total compensation (F + G + H + I) Rs.14,63,004/-
31. Thus, petitioners in this case shall be entitled to a total compensation of Rs.14,63,004/- only.
INTEREST ON AWARD
32. Petitioners shall also be entitled to interest @ 8% per annum on the award amount from the date of filing of the petition till realization. LIABILITY
33. Now, the question arises as to which of the respondent is liable to pay the compensation amount. It is an admitted fact that the offending vehicle was duly insured with respondent no.3/insurance company. In view of my findings on above issues, it is held that respondent no.3/insurance company shall be liable to pay compensation to the petitioner. Relief
34. This Tribunal awards a compensation of Rs.14,63,004/- (Rupees Fourteen Lakh Sixty Three Thousand and Four Only) to the petitioners along with interest @ 8% per annum from the date of filing of petition till realization to be paid by respondent no.3/insurance company. Amount of interim award be deducted from the compensation amount along with the waiver of interest, if any, as directed by the Tribunal during the pendency of this case. The respondent no.3 is directed to deposit the award amount in A/c no.20780110171912 (IFSC Code UCBA0002078), UCO Bank, Karkardooma, Delhi, of PO MACT, Shahdara, through RTGS/ MACT No.1552/2016 Page 15 NEFT, within 30 days from today. The respondent no.3 is also directed to give notice regarding deposit of the said amount to the petitioners. Disbursement and Apportionment of Award Amount
35. Out of awarded amount, a sum of Rs.65,752/- is directed to be released into the saving account of petitioner no.1 Smt.Sunita and a sum of Rs.3,00,000/- along with interest on entire awarded amount is ordered to be kept in the name of petitioner no.1 Smt.Sunita with UCO Bank, Karkardooma Courts, Delhi in Motor Accident Claims Annuity Deposit (MACAD) for a period of 05 years with direction for release of monthly interest on the said amount in her saving account. Out of the awarded amount, a sum of Rs.73,150/- is ordered to be kept in the form of FDR in the name of petitioner no.2 Smt.Rajbala for a period of 05 years. Out of the awarded amount, a sum of Rs.2,56,025.50 each is ordered to be kept in the name of petitioner no.3 Ruchi, petitioner no.4 Rakhi, petitioner no.5 Vishal and petitioner no.6 Rohit with UCO Bank, Karkardooma Courts, Delhi in Motor Accident Claims Annuity Deposit (MACAD) for a period of 07 years or till they attain age of majority whichever is later. The amount of FDRs on maturity would be released in petitioners Saving/ MACT Claims SB Account.
Direction to the petitioners
36. The petitioners shall open a saving bank account near the place of their residence. Further, the bank of petitioners is directed to comply with 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 i.e., the savings bank account of the claimant 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 MACT No.1552/2016 Page 16 custody. However, the statement containing FDR number, FDR amount, date of maturity and maturity amount shall be furnished by bank to the claimant.
(c)The monthly interest be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant near the place of their residence.
(d)The maturity amounts of the FDR be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant 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 issue any cheque book and/or debit card to claimant. 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 so that no debit card be issued in respect of the account of the claimant from any other branch of the bank.
(g)The bank shall make an endorsement on the passbook of the claimant 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 shall produce the passbook with the necessary endorsement before the Court on the next date fixed for compliance.
37. File be consigned to Record Room.
Announced in the open Court ( Shailender Malik ) on 10.11.2023 PO MACT-02/SHD/KKD MACT No.1552/2016 Page 17