Delhi District Court
Ahilya Rani vs Umesh Kumar on 12 September, 2023
IN THE COURT OF MS. EKTA GAUBA MANN
PO, MACT-01 (NORTH), ROHINI COURTS, DELHI
MACT No. 723//19
FIR No. 320/19
PS Bawana
1. Ms. Ahilya Rani
2. Uttam Singh
3. Jai Singh
4. Hari Singh
5. Smt. Kalawati
(Petitioner no. 1, widow,
petitioners no. 2, 3 & 4 sons and
petitioner no. 5 mother
of deceased Saraswati)
All R/o Karahra Kalan, Mahoba,
Uttar Pradesh-210427.
.............Petitioners
VERSUS
1. Umesh Kumar
S/o Sh. Badri Parshad
R/o NJ-297, Sector-3,
DSIIDC, Bawana, Delhi.
2. Rajesh Kumar
S/o Sh. Hari Chand
R/o Village Laharana,
Sonipat, Haryana.
3. Magma HDI Gen. Ins. Co. Ltd.
Unit No. 473, Aggarwal Cyber Plaza-2,
Pitampura, Delhi.
..........Respondents
Date of Institution: 20.12.2019 Date of Award : 12.09.2023 Ahilya Rani & Ors. Vs. Umesh Kumar & Ors.
MACT no. 723/19 1FORM - XV A SUMMARY OF COMPUTATION OF AWARD AMOUNT IN DEATH CASES TO BE INCORPORATED IN THE AWARD
1. Date of accident : 13.07.2019
2. Name of deceased : Saraswati
3. Age of the deceased : 49 years
4. Occupation of the deceased : Private work
5. Income of the deceased : 18,000/- per month (not proved)
6. Name, age and relationship of legal representatives of deceased:
S.No. Name Age as on Relation
date of
accident
(i) Ahilya Rani 47 years Widow
(ii) Uttam Singh 27 years Son
(iii) Jai Singh 23 years Son
(iv) Hari Singh 21 years Son
(v) Smt. Kalawati 77 years Mother
Computation of Compensation
S.No. Heads Awarded by the Claims
Tribunal
7. Income of the deceased (A) 14,468/- as per minimum
wages unskilled worker.
8. Add-Future Prospects (B) 25% (3617)
9. Less-Personal expenses of the 1/4th (4521.25)
deceased (C )
10. Monthly loss of dependency 13,563.75
{ (A+B) - C =D}
Ahilya Rani & Ors. Vs. Umesh Kumar & Ors.
MACT no. 723/19 2
11. Annual loss of dependency (Dx12) 1,62,765/-
12. Multiplier (E) 13
13. Total loss of dependency (Dx12xE = 21,15,945/-
F)
14. Medical Expenses (G) Nil
15. Compensation for loss of love and Nil affection (H)
16. Compensation for loss of 44,000/-
consortium (I)
17. Compensation for loss of estate (J) 20,000/-
18. Compensation towards funeral 20,000/-
expenses (K)
18A Compensation on account of Nil
composite non-pecuniary damages
19. TOTAL COMPENSATION 21,99,945/-
(F+G+H+I+J+K =L)
20. RATE OF INTEREST AWARDED 9%
21 Interest amount up to the date of 7,38,631.52 (from the date of
award (M) filing the claim petition till
passing the award i.e. 44
months 23 days).
22. Total amount including interest 29,38,576.52p rounded up to
(L+M) Rs. 29,39,000/-
23. Award amount released As mentioned in para 20 of
the award
24. Award amount kept in FDRs - do -
25. Mode of disbursement of the award In terms of Clause 29 of amount to the claimant (s) (Clause MCTAP
29)
26. Next date for compliance of the 12.10.2023 award. (Clause 31) Ahilya Rani & Ors. Vs. Umesh Kumar & Ors.
MACT no. 723/19 3FORM - XVII COMPLIANCE OF THE PROVISIONS OF THE SCHEME TO BE MENTIONED IN THE AWARD
1. Date of the accident 13.07.2019
2. Date of filing of Form-I First Accident Report Not available (FAR)
3. Date of delivery of Form-II to victim(s) Not available
4. Date of receipt of Form-III from the driver Not available
5. Date of receipt of Form-IV from the owner Not available
6. Date of filing of the Form-V Interim Accident Not available Report(IAR)
7. Date of receipt of Form-VIA and Form VI B from Not available the victim(s)
8. Date of filing of Form-VII Detailed Accident 20.12.2019 Report(DAR)
9. Whether there was any delay or deficiency on the No. part of the Investigating Officer? If so, whether any action/direction warranted?
10. Date of appointment of the Designated Officer by Not appointed the insurance Company.
11. Whether the designated Officer of the Insurance No Company submitted his report within 30 days of the DAR?
12. Whether there was any delay or deficiency on the Not appointed part of the Designated Officer of the Insurance Company? If so, whether any action/direction warranted?
13. Date of response of the claimant to the offer of the No offer was filed Insurance Company .
14. Date of the Award 12.09.2023
15. Whether the claimant(s) was/were directed to Yes Ahilya Rani & Ors. Vs. Umesh Kumar & Ors.
MACT no. 723/19 4open saving bank account near his/her place of residence?
16. Date of order by which claimant(s) was/were 17.09.2022 directed to open saving bank account near his/her place of residence and produce PAN Card and Aadhar Card and the direction to the bank not issue any cheque book/debit card to the claimant and make an endorsement to this effect on the passbook(s).
17. Date on which the claimant(s) produced the 04.09.2023 & passbook of their saving bank account near the 05.09.2023 place of his/her residence along with the endorsement, PAN Card and Aadhar Card?
18. PAN Card Number of claimant EINPR1882Q (Ahilya Rani) MAWPS7522P (Uttam Singh) MAWPS7524M (Jai Singh) KXUPS9573R (Hari Singh) MHKPK7720A (Kalavati)
19. Permanent Residential Address of the Claimant(s) As mentioned above
20. Whether the claimant(s) saving bank account(s) is Yes. near his/her place of residence?
21. Whether the claimant was examined at the time of Yes. passing of the award.
AWARD
1. IO filed 'Detailed Accident Report' (DAR) with respect to accident before this tribunal on 20.12.2019. Copy of DAR was supplied to both the parties.
Ahilya Rani & Ors. Vs. Umesh Kumar & Ors.
MACT no. 723/19 52. Brief facts of the case are that on 13.07.2019, victim was sitting in a trolley attached with tractor bearing registration no. HR10Y 5239 and going to his work, its driver (respondent no. 1) was driving the same at a very high speed and without following the traffic rules and paid no heed to request to slowdown the speed and as a result, at about 8.30 a.m. when they reached at B-Block Sector-4, DSIIDC, Bawana, Delhi the trolly disconnected from the tractor. The victim fell down on road and left wheel of the trolley rammed over him and victim sustained grievous injuries all over his body. Public persons gathered there and someone from the crowd informed the police. The victim was taken to Maharishi Valmiki Hospital, Pooth Khurd, Delhi where, the victim was declared 'brought dead' by the doctors.
3. Respondents no. 1 & 2 (driver & owner of offending vehicle) have not filed any reply / written statement and their right to file the same stands closed by court order dated 31.05.2022.
4. Although, respondent no. 3 / Ins. Co. in its written statement has admitted that the offending vehicle was duly insured with it on the date of accident, but it has taken the plea that victim was gratuitous / unauthorized passenger and the offending vehicle was goods carrying vehicle and not authorized to carry any passengers in any manner. It has further taken the plea that victim was travelling in a trolley at the time of accident and trolley was not covered under insurance policy whereas the insurance is of a tractor, hence there is breach of terms & conditions of its insurance policy and therefore not liable to indemnify the insured / owner. It has taken certain other technical grounds and denied its liability.
5. After completion of the pleadings, following issues were framed vide Ahilya Rani & Ors. Vs. Umesh Kumar & Ors.
MACT no. 723/19 6order dated 31.05.2022: -
1. Whether Sarswati (victim) died due to vehicular accident occurred on 13.07.2019 at 8.30 am at B-C Block Road, Sector-4, DSIIDC Bawana, Delhi due to rash and negligent driving of vehicle i.e. Tractor registration no. HR10Y 5239 by respondent no. 1 (Umesh)? OPP
2. Whether petitioners are LRs of said victim and entitled to compensation, if yes, what amount and from whom of respondents? OPP
3. Relief.
6. In compliance of directions contained in the judgment titled as Gohar Mohammad vs Uttar Pradesh State Road Transport Corporation decided on 15 December, 2022 by the Hon'ble Supreme Court, with respect to recording of evidence by the Local Commissioner, so, Sh. Prateek Bazad, Advocate was appointed as Local Commissioner for recording evidence in the present matter. Accordingly, after concluding the evidence of both the parties, Ld. LC filed his report along with evidence recorded by him, on 17.08.2023.
7. As per report of Ld. Local Commissioner, petitioner no. 1 has examined herself as PW1. Respondents no. 1 and 2 have not led any evidence whereas respondent no. 3 / Ins. Co. examined Sh. Sandeep Kapoor, its Legal Manager, as R3W1.
8. I have heard ld. counsel appearing on behalf of both the parties and gone through the file thoroughly.
My issue-wise findings are as under:-
ISSUE No.1:-
Whether Sarswati (victim) died due to vehicular accident occurred on 13.07.2019 at 8.30 am at B-C Block Road, Sector-4, DSIIDC Bawana, Ahilya Rani & Ors. Vs. Umesh Kumar & Ors.MACT no. 723/19 7
Delhi due to rash and negligent driving of vehicle i.e. Tractor registration no. HR10Y 5239 by respondent no. 1 (Umesh)? OPP
9. The onus to prove this issue was upon the petitioners and to prove the same, petitioner no. 1, widow of deceased as well as eye witness examined herself as PW1 and tendered her affidavit Ex.PW1/A in evidence. She deposed that on 13.07.2019 she was sitting on tractor Umesh (offending vehicle) and her husband (victim) was sitting on trolley attached with the said tractor bearing registration no. HR10Y 5239 and going to work, its driver (respondent no. 1) was driving the said tractor at a very high speed and rashly and without following the traffic rules and paid no heed to their request to slowdown the speed and as a result, at about 8.30 a.m. when they reached at B-Block Sector-4, DSIIDC, Bawana, Delhi the trolly disconnected from the tractor. Her husband (victim) fell down on road and left wheel of the trolley rammed over him and victim sustained grievous injuries all over his body. Public persons gathered there and someone from the crowd informed the police. She with the help of other labourers immediately had taken her husband to Maharishi Valmiki Hospital, Pooth Khurd, Delhi for treatment, where, the victim was declared 'brought dead' by the doctors. In her cross examination, PW1 denied the suggestion that no accident was committed by the offending vehicle. No suggestion put to PW1 regarding the manner in which the accident had occurred. Despite specific suggestion put to PW1 with regard to false implication of respondent no. 1 and 2, neither respondent no. 1 nor respondent no. 2 has examined any witness nor themselves particularly respondent no. 1 to prove that there was no rash or negligent on his part or that as to why he has been falsely implicated in the present case. Even, Respondent no.1 has been Ahilya Rani & Ors. Vs. Umesh Kumar & Ors.
MACT no. 723/19 8chargesheeted for offences punishable U/S 279/304A IPC as per DAR. Further, There is nothing on record which shows that respondent no. 1 / driver of the offending vehicle have ever approached to any higher authority with respect to his implication in the present case. The fact that deceased suffered fatal injuries in that accident, is duly supported by his postmortem report filed along with DAR. Further, relying upon the judgment of Mahila Dhanvanti and Ors Vs. Phulwant Mahendra Singh, Miscellaneous Appeal no.239/1992 decided by Hon'ble Madhya Pradesh High Court on 29.07.1993 in which it is held as under: -
"The plaintiff can prove the accident but cannot prove how it happened to establish negligence. This hardship is to be avoided by applying the principle of res ipsa loquitur. The general purport of the words res ipsa loquitur is that the accident speaks for itself or tells its own story".
10. Thus, Claims Tribunal while dealing with the law of torts in motor accident cases applies the principle of "res ipsa loquitur". Considering all this, it stands proved that accident in question occurred due to rash and negligent driving of offending vehicle by the respondent no. 1 and victim suffered fatal injuries in the said accident. This issue is therefore decided in favour of the petitioners and against respondents by holding that victim suffered fatal injuries in the vehicular accident occurred on 13.07.2019 at 8.30 am at B-C Block Road, Sector-4, DSIIDC Bawana, Delhi due to rash and negligent driving of offending vehicle by respondent no. 1. ISSUE No.2:-
Whether petitioners are LRs of said victim and entitled to compensation, if yes, what amount and from whom of respondents? OPP
11. Petitioner no. 1 as PW1 has deposed that her deceased husband has Ahilya Rani & Ors. Vs. Umesh Kumar & Ors.MACT no. 723/19 9
left behind his only legal heirs i.e. herself i.e. widow (petitioner no. 1), petitioner no. 2, Uttam Singh, petitioner no. 3, Jai Singh & petitioner no. 4 Hari Singh (sons) and petitioner no. 5, Smt. Kalawati (mother). There is no dispute with regard to the LRs of deceased. However, Smt. Ahilya Rani, widow of deceased as PW1 in her cross examination admitted that her son namely Uttam is married and earning by agriculture. Hence, being earning independently, petitioner no. 2 Uttam Singh (son of the deceased) cannot be considered dependent on the income of deceased. So, only petitioner no. 1, 3, 4 & 5 are considered to be dependent upon the deceased. Now coming to the quantum of compensation.
12. Ms. Ahilya Rani, petitioner no. 1 / widow of deceased, as PW1 in her affidavit Ex. PW1/A though deposed that her husband (victim) Sarswati was earning Rs. 18,000/- per month. However, except deposition of PW1 / petitioner no. 1, there is no document proved or placed on record to show that victim was earning such amount, neither any witness has been examined to prove the same nor any document with regard to educational qualification has been placed on record. Hence, minimum wages of unskilled worker at the relevant time has to be taken, which was Rs. 14,468/- per month.
13. As per the judgment in the case of National Insurance Company Limited Vs. Pranay Sethi and others, of Hon'ble Supreme Court the net income of the deceased is to be counted after deduction of tax and future benefit have to be given @ 25% as the deceased was self employed. Apparently the salary of the deceased which is stated to be not taxable and since the deceased was a self employed and more than 40 years old, at the time of accident, 25% of enhancement of salary be also given to the Ahilya Rani & Ors. Vs. Umesh Kumar & Ors.
MACT no. 723/19 10petitioners.
14. Since the victim was more than 40 years of age at the time of accident, a multiplier of 13 is taken, as per judgment in the case of Smt. Sarla Verma (Supra). As stated above, having four dependents upon him, victim is presumed to be spending 1/4th of his income towards his personal expenses. Counting in this way, loss of dependency comes to Rs. 21,15,945 (14468 + (25%) 3617 = 18085 - 1/4th (4521.25) = 13,563.75 x 12 x 13). This amount of Rs.21,15,945/- is allowed to the petitioners, as loss of dependency.
15. As per judgment in the case of Shree Ram General Ins. Co. Ltd. Vs. Bhagat Singh Rawat & Ors. Civil Appeal Nos. 2410-241 2/2023 decided by the Hon'ble Supreme Court of India on 27.03.2023, apart from amount mentioned above, petitioners are granted a sum of Rs.20,000/-for funeral expenses, Rs.20,000/- for loss of estate and Rs. 44,000/- to only widow for loss of consortium, making a total sum of Rs. 21,99,945/-, detail of which is well mentioned in the above proforma.
Now coming to the aspect of liability.
16. It is already held above that accident has been caused due to rash and negligent driving by the respondent no. 1 and admittedly, the offending vehicle was insured with respondent no. 3 / Ins. Co. However, respondent no. 3 / Ins. Co. has taken the plea that victim was travelling in the trolley attached with tractor, which is not authorized for carrying any passenger, therefore, the deceased was travelling as a gratuitous passenger and respondent no. 1 was not having valid driving licence to drive the tractor. Though, respondent no. 3 / Ins. Co. has examined R3W1 Sandeep Kapoor, its Assistant Legal Manager, who deposed that policy issued by respondent no. 3 / Ins. Co. was in respect of goods vehicle and does not allow the Ahilya Rani & Ors. Vs. Umesh Kumar & Ors.
MACT no. 723/19 11insured to take any passenger travelling in tractor and trolley but in his cross examination R3W1 has failed to show his authorization to depose in the present matter. Admittedly, R3W1 has not placed any authorization letter nor he sent any letter to concerned RTO Hamirpur with regard to verification of DL of respondent no. 1. R3W1 admitted that he has no personal knowledge of the case nor he personally inquired the facts of the present case, site inspection, local inspection, inquiry from petitioner, driver, owner, police and even from RTO office regarding the driving licence of respondent no. 1. Rather, he admitted that he has appeared in the court first time in the present matter. He further admitted that he has not submitted on record the proof of delivery of the notice u/s 134 (c) M.V. Act, order 12 Rule 8 CPC read with Section 106 Evidence Act dated 17.05.2023, Ex. R3W1/5, as it was sent on date of his testimony only i.e. 20.05.2023 at 12.41 p.m. by his counsel. All this shows, that notice has not been served and this witness is has deposed in a very casual manner, without having any knowledge about the present case. No other witness has been examined by respondent no. 3 / Ins. Co.. The contention of Ld. counsel for respondent no. 3 / Ins. Co. with regard to the driving licence of the respondent no. 1 is not well found as there is specifically written on the said document Ex. R3W1/3 i.e. 'Form of Driving Licence', duly verified by IO through RTO, Hamirpur, filed along with DAR that "The licence to drive a Motor Vehicle other than Transport Vehicle is valid from 08.09.2011 to 07.09.2031" and as per document Ex. R3W1/2 i.e. vehicle particulars, duly verified by Registrar Authority, Sonipat, Haryana the offending vehicle is agricultural tractor and not Transport Vehicle. Hence, this contention of Ld. counsel for respondent Ahilya Rani & Ors. Vs. Umesh Kumar & Ors.
MACT no. 723/19 12no. 3 / Ins. Co. is not well proved on record as respondent no. 1 was driving agricultural tractor and not transport vehicle. As far as, the other contention of Ld. counsel for respondent no. 3 / Ins. Co. that when the accident had occurred, the trolley was attached to the tractor and since the attached trolley was not insured, the insurance company is not liable to pay any compensation to the victim is concerned. Admittedly, the insurance policy which was issued by the insurance company for commercial purposes. It is also admitted fact that the tractor by itself and in absence of any trolley/trailer cannot be used for commercial purposes. Contention of accepting the premium by the insurance company for tractor for commercial purposes without trolley/trailer is just an attempt to mislead the insured. Even, R3W1 Sandeep Kapoor in his cross examination admitted that he has received the premium of trolley & was insured. Therefore, for all practical purposes, the tractor is deemed to have been insured by the insurance company including trolley/trailer which would be attached to the tractor. Thus, it is proved that insurance of trolley is included in the premium for the insurance of tractor for commercial purposes. Not only this, in view of the judgment of Hon'ble High Court of Allahabad (Lucknow Bench) passed in Liyakat Ali Vs. Smt. Chunni Devi, FAFO no.600/2009 decided on 16.07.2010 in which it was held as under:
"Hence insurance of trailer is not a mandatory requirement under the provisions of Section 146 of Motor Vehicles Act and if the prime mover/motor vehicle/tractor is insured and the negligence of the driver of the said motor vehicle is established, the compensation is payable by the owner of the tractor and insurer irrespective of the fact whether the victim Ahilya Rani & Ors. Vs. Umesh Kumar & Ors.MACT no. 723/19 13
suffers injury with the tractor or with the trailer. Therefore, we are of the view that in such cases, the insurance company is also liable alongwith the owner of the tractor/trailer to pay compensation."
In view of the said judgment, the said contention of the respondent no.3 is not tenable and the same is rejected. Since the respondent no.3 / Ins. Co. has failed to establish any statutory defence, it is liable to indemnify the owner / insured and to pay compensation to the petitioners This issue is therefore decided in favour of petitioners and against the respondents holding that respondent no. 3 / Ins. Co. is liable to indemnify the insured / owner and to pay the compensation to the petitioners. ISSUE NO. 3 (RELIEF)
17. Petition is allowed and an award of Rs. 29,39,000/- which includes 44 months & 23 days interest @ 9% per annum from the date of filing the petition till the date of award is passed in favour of petitioners and against the respondents, details of which are well mentioned in the above proforma.
18. Accordingly, respondent no. 3 / Ins. co. is directed to pay Rs.29,39,000/- to the petitioners as compensation in this case, within 30 days from today failing which, it would be liable to pay further interest @ 9% per annum on the amount of Rs. 21,99,945/- from the date of award till its realization. Interim amount, if any paid to the petitioners be deducted from this amount.
DISBURSEMENT
19. Statement of petitioners under clause 29 of MCTAP recorded vide order dated 04.09.2023 & 05.09.2023. Petitioners are maintaining their following MACT SB account with Punjab National Bank, Branch Gandhi Ahilya Rani & Ors. Vs. Umesh Kumar & Ors.
MACT no. 723/19 14Marg, Mahoba, Uttar Pradesh, Branch Kharkhoda, Sonipat: -
1. Petitioner no. 1 has MACT SB account no. 4797000100084026.
2. Petitioner no. 3 has MACT SB account no. 4797000100087519.
3. Petitioner no. 4 has MACT SB account no. 4797000100087528.
4. Petitioner no. 5 has MACT SB account no. 4797000100087908.
20. Considering circumstances of petitioners and after consulting ld. counsel for petitioners, it is directed that out of the awarded amount, 70% is awarded in favour of petitioner no. 1 (widow of deceased) and 10% each in favour of petitioners no. 3, 4 & 5. Out of the share of petitioners, 10% amount would be released to them through their above MACT SB account and their 90% remaining amount would be kept in MACAD annuity to be released to them in a phased manner i.e. Rs. 10,000/- each directly credited in their MACT SB account on monthly basis.
21. The petitioners would be withdrawing this amount only through withdrawal slip and by no other mode or digital mode i.e. Debit card / Credit card /ATM/NEFT/RTGS/letter etc.
22. The salient features as prescribed in the judgment in Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors. FAO No. 842/2003 decided on 08.01.2021 are to be applied: -
(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.
Ahilya Rani & Ors. Vs. Umesh Kumar & Ors.
MACT no. 723/19 15(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 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 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 above.
23. Respondent no. 3 / Ins. Co. is directed to deposit amount of compensation, as stated above, with this tribunal within 30 days, with advance notice to petitioners. Digitally signed File be consigned to record room.
EKTA by EKTA GAUBA
Date:
ANNOUNCED IN THE OPEN
GAUBA 2023.09.12
16:48:12
(EKTA GAUBA MANN)+0530
COURT ON 12.09.2023 PO:MACT-01, NORTH, ROHINI, DELHI
Ahilya Rani & Ors. Vs. Umesh Kumar & Ors.
MACT no. 723/19 16