Delhi District Court
Asha & Anr. vs . Pratap Singh & Ors. on 28 November, 2018
IN THE COURT OF SH. M. K. NAGPAL
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNAL :
PATIALA HOUSE COURTS, NEW DELHI
MACP No. 73/16
ASHA & ANR. VS. PRATAP SINGH & ORS.
1. Smt. Asha (Mother)
W/o. Sh. Hans Raj
2. Sh. Hans Raj (Father)
S/o Sh. Ram Bishan
Both R/o. H. No.152, Mochi Bagh Village,
Delhi-110021.
......Petitioners/Claimants.
AND
MACP No. 74/16
NILAM & ANR. VS. PRATAP SINGH & ORS.
1. Smt. Nilam (Mother)
W/o. Sh. Daya Kishan
2. Sh. Daya Kishan (Father)
S/o. Sh. Rarnal Singh
Both R/o. H. No. 19, Moti Bagh Village,
Chankya Puri, Moti Bagh-II,
South West Delhi-110021.
......Petitioners/Claimants.
AND
MACP No. 75/16
RAJ & ANR. VS. PRATAP SINGH & ORS.
1. Smt. Raj (Mother)
W/o. Sh. Shadi Lal
2. Sh. Shadi Lal (Father)
MACP Nos.73/16, 74/16 & 75/16 Page no. 1 of 36
S/o Sh. Prem Sukh
Both R/o. H. No.135, Mochi Bagh Gaon,
Chankya Puri, South West Delhi-110021.
......Petitioners/Claimants.
Versus
1. Sh. Pratap Singh Baghel (Driver of truck)
S/o. Sh. Ram Swaroop Baghel,
R/o. Nagla Karondha,
Firozabad, U.P.
2. M/s. Nissin ABC Logistics Pvt. Ltd. (Owner of truck)
Plot No.2B/3, Udyog Kendra Industrial Area
Ecotech-III, Phase-II, Kulesra, G.B. Nagar,
Dadri-201306, U.P.
2nd Address:- C/o. Laxmi Shanker Shukla,
S/o. Sh. Braham Dev Shukla,
R/o. Plot No.2B/3, Indl. Ekcotal,
Greater Noida, U.P.
3. M/s.Reliance General Ins. Co. Ltd. (Insurer of truck)
60, Okhla Industrial Area,
Phae-III, New Delhi.
4. Smt. Asha Bisht (Owner of Swift Car)
W/o. Sh. Pratap Singh,
R/o. 1057, Sector-7, R.K. Puram,
New Delhi.
.....Respondents
Date of filing of MACP No.73/16 : 20.08.2015 Date of filing of MACP No.74/16 & 75/16 : 30.07.2015 Date of filing of DARs : 20.08.2015 Date of framing of issues : 10.06.2016 Date of concluding arguments : 20.11.2018 Date of decision : 28.11.2018 AWARD/JUDGMENT
1. These three claim petitions bearing MACP Nos.73/16, 74/16 and 75/16 are connected to each other as they arise out of the same accident and hence, the same are being taken up and MACP Nos.73/16, 74/16 & 75/16 Page no. 2 of 36 disposed off together through this common judgment/award. The above accident took place on 02.03.2015 at about 1.50 AM, i.e. the night of 01/02.03.2015, near Dhaula Kaun Flyover, on the road leading from Moti Bagh towards Naraina, Delhi Cantt., New Delhi between a truck bearing registration No. HR-38Q-3729 and one car bearing registration No. DL-5CF-0226. These petitions have been filed by legal representatives (LRs) of the deceased Shiva, Yatish and Prateek respectively and they all were traveling in the above said car at the time of accident.
2. Three separate DARs bearing No. D-304/15, 305/15 and 306/15 in respect of the above accident were filed before this tribunal on 20.08.2015 and these claim petitions were also filed by the LRs of the three deceased separately on different dates and the DARs were directed to be clubbed with the respective claim petitions for further proceedings.
3. It is observed that one FIR bearing No. 96/2015 was registered about the above accident against R-1, who is driver of the above truck, for offences punishable under Sections 279/337/304-A IPC and it finally culminated in filing of a charge-sheet against him for the said offences. In the DARs also R-1, R-2 and R-3 were impeaded by the Investigating Officer (IO) as the driver, owner and insurer respectively of the offending truck and even these claim petitions were filed by the petitioners against them only. However, on an application under Order 1 Rule 10 read with Section 151 CPC moved subsequently on behalf of R-3, i.e. insurer of above truck, the driver, owner and insurer of the above car were also directed to be impleaded as necessary parties to these petitions vide an order dated 12.10.2015 passed by this tribunal.
4. It is also observed from record that subsequent thereto, MACP Nos.73/16, 74/16 & 75/16 Page no. 3 of 36 an application dated 09.11.2015 under Section 151 CPC was filed on behalf of the petitioners intimating that the said car was owned by one Smt. Asha Bisht and it was not insured and further that the driver of said car died in the same accident and hence, it was requested that only Smt. Asha Bisht be impleaded as a respondent and vide order dated 09.11.2015, the said application was allowed and only Smt.Asha Bisht was impleaded as R-4 in these petitions.
5. R-3 i.e. Insurance Co. of the above truck in its WS to these claim petitions has specifically admitted that on the date of accident the above truck was insured with them in the name of R-2 Company. However, they have denied the facts alleged by the petitioners and also the alleged rashness or negligence on the part of driver of the said truck in causing the accident and it is their submission that the accident took place as driver of the car was driving it at high speed and in a careless and negligent manner.
6. Though appearance was also filed on behalf of R-1 & R-2 in these proceedings, but they had neither filed any WS/reply to the petitions or DARs nor they subsequently turned up to contest the proceedings.
7. Since R-4 could not be served in the ordinary manner, she was served by way of publication in the Hindi daily 'Veer Arjun' dated 10.02.2016, but even she did not turn up to file any WS/reply and to contest the proceedings.
8. Vide order dated 10.06.2016 of this tribunal, these claim petitions were consolidated for the purposes of trial and disposal and MACP No.73/16 was directed to be the lead case for the purposes of recording of evidence.
9. I have heard the arguments advanced by Sh.Avneesh Rai, Ld. Counsel for the petitioners and Ms. Manu Kushwaha, Ld. MACP Nos.73/16, 74/16 & 75/16 Page no. 4 of 36 Counsel for R-3. I have also perused the entire material available on record. However, none has turned up for the remaining respondents to address any arguments. My issue-wise findings are as under:-
ISSUE NO.1 "Whether Sh. Shiva (deceased in the Suit no.73/16), Sh. Prateek (deceased in the Suit no.74/16) and Sh. Yatish (deceased in the Suit no.75/16) sustained fatal injuries in the accident which occurred on 02.3.2015 at about 01.50 am, at Moti Bagh to Narina Ring Road near D.K. Flyover, Delhi Cantt., New Delhi caused by rash and negligent driving of vehicle No. HR 38Q 3729 driven by respondent no.1, owned by respondent no.2 and insured with respondent no.3? OPP."
10. It is well settled that the procedure followed for proceedings conducted by an accident tribunal is similar to that followed by a civil court and in civil matters the facts are required to be established by preponderance of probabilities only and not by strict rules of evidence or beyond reasonable doubts as are required in a criminal prosecution. The burden of proof in a civil case is never as heavy as that is required in a criminal case, but in a claim petition under the Motor Vehicles Act, this burden is infact even lesser than that in a civil case.
11. In case Bimla Devi and others Vs. Himachal Road Transport Corporation and others (2009) 13 SC 530, it has been observed by the Hon'ble Supreme Court that in a road accident case, the strict principles of proof as in a criminal case are not attracted. Relevant portion of the said judgment is reproduced as under:-
"15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. For the said MACP Nos.73/16, 74/16 & 75/16 Page no. 5 of 36 purpose, the High Court should have taken into consideration the respective stories set forth by both the parties."
12. These observations were also quoted with approval in the subsequent judgment of the Hon'ble Supreme Court in case Parmeshwari Vs. Amir Chand and others 2011 (1) SCR 1096 (Civil Appeal No.1082 of 2011) and also recently in another case Mangla Ram Vs. Oriental Insurance Co. Ltd. & Ors., 2018 Law Suit (SC) 303.
13. As far as death of the above deceased persons in the above accident is concerned, the same has not been disputed and even otherwise, the same stands proved from the postmortem reports of the deceased and other documents filed on record as a part of the DAR documents Ex.PW1/4 (colly).
14. The petitioners in support of their case have examined on record total four witnesses, including the petitioners Smt. Asha, Smt. Raj and Smt. Nilam examined as PW1, PW2 and PW3 respectively. However, admittedly, none of them is an eye-witness of the above accident and hence, it is only the testimony of PW4 Sh.Balbir Singh which is relevant for determination of the present issue as he is being alleged to be an eye-witness of the accident.
15. On perusal of his testimony it is found that he has specifically stated on record that on 02.03.2015 at about 1:50AM, he was going in his car from Moti Bagh to Naraina, when he saw another car going ahead of his car. He has also stated that when they reached Dhaula Kaun Flyover, Delhi Cantt., he saw that a truck no. HR-38Q-3729 was parked in middle of the road, in complete darkness, without any parking lights or indication and in a rash and negligent manner, as a result of which the car which was going ahead of his car dashed against the aforesaid truck. He further MACP Nos.73/16, 74/16 & 75/16 Page no. 6 of 36 stated that occupants of the car received serious injuries in the accident and a PCR van arrived at the spot of accident and took the injured to hospital and his statement was recorded by the police.
16. During his cross-examination, he has also stated that on the day of accident he was coming from Taj Man Singh hotel to his residence and he left the hotel at around 1:15AM and he was driving alone. He also stated that he had seen the accident from a distance of about 600-700 mtrs. and the car in which the deceased were traveling did not overtake his car. He further stated that street lights were on at the time of accident and three persons were traveling in the car and one of them who was of thin built was driving it. He also claims to have informed about the accident to the police at 100 number from his mobile phone, arrival of PCR at spot and taking of injured to hospital by the police in his presence and also his being telephonically contacted by the police about the manner of accident, though he further states that his statement was not recorded by the police at the spot. He also denied the suggestions given to him by Ld. Defence Counsel, which were contrary to the above depositions made by him.
17. It is clear from the depositions made by this witness that he is an actual eye-witness of the accident and has given a clear account of the accident and manner thereof. His presence at the spot is not in doubts as even according to records of the criminal case, which have been filed on record with the DAR and are relied upon documents of the petitioners as Ex.PW1/4 (colly), he is the person who had informed the police about the above accident after witnessing the same. Further, he is a summoned witness and has also specifically stated that he is not related to any of the deceased.
18. It is found that nothing material could be extracted out MACP Nos.73/16, 74/16 & 75/16 Page no. 7 of 36 from this witness by Ld. Counsel for R-3 during his cross examination, which could have the effect of challenging or controverting the depositions made by him before this tribunal. Though, it has been pointed out that the depositions made by him before this tribunal are not in conformity with the statement made by him under Section 161 Cr.P.C in the criminal case, wherein the witness is alleged to have stated that driver of the truck applied sudden breaks and stopped the truck in middle of the road without any indicators for stopping it, but the said statement of the witness has not been put to him during his cross-examination and he has not been confronted with the facts recorded therein with regard to manner of the accident and hence, his above statement under Section 161 Cr.P.C. cannot be seen or looked into this case. There is also no other reason to disbelieve or discard his statement as made in the court.
19. However, now it is to be seen from the evidence led on record if the said accident took place due to the sole rash or negligent act of R-1 in driving the said truck or the person who was driving the above car was also in any manner responsible for the same. It is observed that nowhere in the charge-sheet, it has been specifically disclosed as to who was driving the said car. Since PW4 was not related or known to any of the deceased persons, even he could not have identified the person driving the said car at the time of accident and it is for this reason only he appears to have stated in the court that the person with a thin built was driving it. It also observed that even the petitioners for some malafide reasons have not come forward with clean hands and have tried to conceal identity of the person who was behind wheels of the said car at the relevant time of accident as nowhere in any of the petitions they have MACP Nos.73/16, 74/16 & 75/16 Page no. 8 of 36 disclosed the name of the person driving it at the relevant time and have only stated therein that the three deceased were going in the said car at that time. However, during the cross-examinations of PW1 to PW3, it has come on record that it was the deceased Shiva of MACP No.73/16 who was driving the said car and as per his mother/PW1 he had purchased the said car from R-4 Smt. Asha Bisht around one year prior to the accident, though the car continued to be registered in the name of R-4.
20. On a careful perusal of the depositions made by PW4, it appears to this tribunal that the above accident did not take place due to the sole rashness or negligence of R-1 and the deceased Shiva was also equally responsible for the said accident. It is found that during his examination in chief, PW4 has though stated on record that the above truck was parked in middle of the road and in complete darkness, but during his cross-examination he has also specifically admitted that the street lights were on at the time of accident. He has even stated that he had seen the accident from a distance of about 600-700 mtrs. and further that the above car did not overtake his car and it had always remained ahead of his car. Once he says in his cross-examination that he had noticed and seen the above truck parked in middle of the road from a distance of around 600-700 mtrs., which is quiet a long distance, his depositions made during his examination in chief to the effect that the said truck was parked in complete darkness cannot be believed. This tribunal fails to understand from his testimony as to when he/PW4 had noticed the parked truck from such a long distance despite the fact that the accident took place at around midnight, then why the deceased Shiva could not notice it though the car of deceased was running ahead of the car of this witness.
MACP Nos.73/16, 74/16 & 75/16 Page no. 9 of 36
21. The answer to this question appears to be lying in the fact that the evidence led on record clearly shows that the deceased Shiva was heavily drunk while driving the said car at the time of accident and this fact is duly established from the FSL report dated 19.06.2015 Ex.PX on record, which makes it clear that the blood sample of deceased Shiva taken by the IO during investigation of the criminal case was found to contain methyl alcohol to the extent of 99.0mg/100ml and ethyl alcohol of level 15.80mg/100ml and blood sample of one other deceased Prateek was found to contain methyl alcohol to the extent of 20.30mg/100ml and ethyl alcohol of level 2.30mg/100ml. The alcohol level of deceased Shiva found in his blood is almost three times more of the level of alcohol permitted in Delhi. The above report Ex.PX is an admitted document of the parties and was called for by this tribunal at the final stage on request of Ld. Counsel for R-3, though it was not filed as a part of the DAR documents by the IO.
22. Hence, the evidence led on record establishes that the deceased Shiva was heavily under the influence of liquor at the time of driving of the said car and causing the accident. Even her mother/ PW1 during her cross-examination has specifically stated that during that night the deceased persons had gone for a party as the friends of her son were asking him to throw a party on his birthday. Further, though she also claimed that her son Shiva was holding a valid driving licence (DL) on the day of accident, but she also admitted that she was neither having the original nor a copy of the said DL and no copy of his DL has also been collected by the IO during investigation of the criminal case or filed on record of this tribunal. Hence, an inference can safely be drawn by this tribunal that the deceased Shiva was not possessing a valid DL on the day of accident.
MACP Nos.73/16, 74/16 & 75/16 Page no. 10 of 36
23. The above depositions made by PW4 regarding the manner of accident, coupled with the fact that the deceased Shiva was heavily drunk at the time of accident and also the inference that he was not holding a valid DL on the day of accident, force this tribunal to conclude that the deceased Shiva was equally responsible for the said accident and his contribution in causing the accident can be taken as 50% with that of R-1 who was driving the said truck. The judgment of the Hon'ble Supreme Court dated 09.02.2018 in Civil Appeal Nos.7300-7309 of 2016 in the case titled 'Archit Saini & Anr. Vs. The Oriental Insurance Co. Ltd. & Ors.' being relied upon by Ld. Counsel for the petitioners can be distinguished and is found to be not applicable in the present case, in view of the facts and evidence already discussed above.
24. Therefore, in view of the above, it is held that the oral and documentary evidence led on record shows that the above accident resulting into death of the above three deceased Shiva, Prateek and Yatish was caused due to contributory negligence on the part of R-1 who was driving the above truck bearing no. HR-38Q-3729, which was owned by R-2 and insured with R-3, as well as on part of the deceased Shiva who was driving the above car bearing no. DL-5CF-0226, which was registered in the name of R-4 and is stated to be have been purchased by him from R-4 prior to the accident. This issue stands accordingly decided.
25. ISSUE NO.2
2. Whether the petitioners are entitled for compensation? If so, to what amount and from whom?
In view of my findings on the above issue no.1, the petitioners have become entitled to be compensated for the deaths MACP Nos.73/16, 74/16 & 75/16 Page no. 11 of 36 of their above family members in the said accident, but the quantum of computation of compensation and liability to pay the same etc. are still required to be decided. The compensation to which the petitioners are entitled shall be as and under the following heads:-
26. COMPENSATION IN MACP No. 73/16 As already discussed above, it has been held that the above accident took place due to contributory negligence of R-1 and the deceased Shiva, who were driving the above truck and car respectively, their contribution in causing the above accident was 50:50. Hence, it is now required to be decided as to what amount of compensation, if any, the LRs of deceased Shiva are entitled in this petition and from whom.
The law with regard to contributory or composite negligence is well settled and it has been constantly held that in such a case the drivers of both the vehicles involved in the accident are the tort-feasors and LRs of the deceased or injured can claim compensation from any of them or the owners and insurers of the vehicles being driven by them. In case of Kamlesh & Ors. Vs. Attar Singh & Ors., (2015) 15 SCC 364, a two Judges Bench of the Hon'ble Supreme Court has made the following observations:-
"7. We have heard learned counsel for the parties and perused, inter alia, the evidence on record of Ram Parshad PW2 and Devender PW.3. The method and manner in which the accident has taken place leaves no room for doubt that it was a case of composite negligence of drivers of both the vehicles, that is the driver of Maruti car and driver of tempo. Though Police has registered a case against driver of the tempo Attar Singh and has filed a chargesheet but the same cannot be said to be conclusive. Though, Attar Singh has stated that it was in order to oblige the driver of the Maruti car, a case was registered against him. Be that as it may. It appears both the drivers have tried to save their liability. In such circumstances, the version of eye-witnesses, PW.2 and PW.3 assumes significance. The fact remains that car had dashed the tempo on the middle portion near footstep. Thus the method and manner in which the accident has taken place leaves no room for doubt that both the drivers were negligent.
MACP Nos.73/16, 74/16 & 75/16 Page no. 12 of 36 Man may lie but the circumstances do not is the cardinal principle of evaluation of evidence. No effort has been made by the High Court to appreciate the evidence and method and manner in which the accident has taken place. Both the aforesaid witnesses have stated Maruti Car was in excessive speed. However, it appears driver of tempo also could not remove his vehicle from the way of Maruti Car. Thus, both the drivers were clearly negligent. It appears from the facts and circumstances that both the drivers were equally responsible for the accident. Thus, it was a case of composite negligence. Both the drivers were joint 'tort- feasors', thus, liable to make payment of compensation.
8. The law in the case of an accident arising out of composite negligence has been considered by a 3 Judges' bench of this Court in Khenyei v. New India Assurance Co. Ltd. & Ors. (AIR 2015 SC 2261) wherein following propositions have been laid down :
"(i) In the case of composite negligence, plaintiff/claimant is entitled to sue both or any one of the joint tort feasors and to recover the entire compensation as liability of joint tort feasors is joint and several.
(ii) In the case of composite negligence, apportionment of compensation between two tort feasors vis a vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.
(iii) In case all the joint tort feasors have been impleaded and evidence is sufficient, it is open to the court/tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tort feasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/ extent of their negligence has been determined by the court/tribunal, in main case one joint tort feasor can recover the amount from the other in the execution proceedings.
(iv) It would not be appropriate for the court/tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tort feasors. In such a case, impleaded joint tort feasor should be left, in case he so desires, to sue the other joint tort feasor in independent proceedings after passing of the decree or award."
The above law was also followed by the Hon'ble Delhi High Court in its judgment dated 23.05.2017 in MACPs Nos.378 & 379/17 titled The National Insurance Co. Ltd. Vs. Savitri Devi & MACP Nos.73/16, 74/16 & 75/16 Page no. 13 of 36 Ors. etc. Hence, since the deceased Shiva of this case was himself was one of the tort-feasors, the claim for compensation raised by his LRs stands on different footing then that raised by LRs of the other two deceased traveling in the above car.
Since deceased Shiva was himself was a tort-feasor, his LRs cannot be granted any compensation for rash or negligent act of their own predecessor-in-interest in a petition filed under Section 166 of the MV Act, though their claim is maintainable against the other tort-feasor, i.e. driver/R-1, owner/R-2 and insurer/R-3 of the other vehicle involved in the accident. Hence, the claim for compensation raised by the petitioners in this claim petition is held maintainable only against R-1, R-2 and R-3 and not against R-4, who is stated to be registered owner of the above car.
Coming to the quantum of compensation, the petitioners being LRs of deceased Shiva are entitled to compensation under the following heads:-
i) Loss of dependency As per the depositions made by Smt. Asha, i.e. mother of deceased Shiva, her son was unmarried and aged about 20 years at the time of accident. She has also tendered on record, inter-alia, a copy of the school leaving certificate of her deceased son as Ex.PW1/1 and in this document, the date of birth of the deceased is found to be recorded as 01.10.1995 and as per this document, the age of the deceased at the time of accident, i.e. 02.03.2015, comes to 19 years and around 5 months. In terms of the law laid down by the Hon'ble Supreme Court in the case of Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr., (2009) 6 SCC 121, which has also been approved in the Constitution Bench decision of the Hon'ble MACP Nos.73/16, 74/16 & 75/16 Page no. 14 of 36 Supreme Court in the case National Insurance Company Ltd. Vs. Pranay Sethi & Ors. SLP (Civil) No. 25590 of 2014, decided on 31.10.2017 and further reiterated by a three Judges Bench of the Hon'ble Supreme Court in its subsequent judgment dated 09.02.2018 in Civil Appeal No. 7176/2015 in the case of Sube Singh & Anr. Vs. Shyam Singh (Dead) & Ors. and followed by the Hon'ble Delhi High Court in its various decisions, including the judgment dated 05.04.2018 passed in MACA No.94/18 in the case K.L. Jadhav & Ors. Vs. Abhishek & Ors., the multiplier in case of an unmarried deceased shall be as per the age of the deceased himself and not according to the age of his parents and hence, the multiplier of '18' is held applicable in the present case.
Though in her affidavit Ex.PW1/A, PW1 has claimed that her deceased son was doing private service and earning Rs.20,000/- per month, but admittedly no document has been placed on record to substantiate her these claims. The above school leaving certificate Ex.PW1/1 produced by PW1, however, shows that the deceased was still studying in class 9 th when the above certificate was issued on 05.07.2013. Though, during her cross-examination, PW1 has also claimed that her deceased son had studied upto class 11 th, but no document has been produced or filed on record of this tribunal by hr to show that the deceased continued his studies thereafter or even passed class 10th.
In view of the above and further since the deceased was a resident of Delhi at the time of accident, this claim for compensation is required to be calculated only as per the minimum wages for workers as applicable in Delhi at the relevant time of accident. It is observed that in Delhi at the relevant time accident, the minimum wages for an unskilled worker were Rs.8,632/- and for non-
MACP Nos.73/16, 74/16 & 75/16 Page no. 15 of 36 matriculates the same were Rs.9,542/-. Since there is nothing on record to show that the deceased was engaged in any work and further since this is a beneficial legislation, the minimum wages for non-matriculates are held applicable in this case.
Coming to the dependency upon the deceased, it is found that this petition has been filed only by parents of the deceased. During cross examination, PW1 has admitted that P-2, i.e. father of the deceased, is employed as a Safaikaramchari in MCD and hence, in view of the above, as well as the law laid down by the Hon'ble Supreme Court in the case of Sarla Verma (Supra), he cannot be treated as a dependent upon the deceased. Further, though PW1 has also stated that she is having one daughter aged around 21 years and son aged around 16 years, but even they cannot be treated as dependents upon the deceased. In any case, in view of the law laid in the cases of Sarla Verma and Pranay Sethi & Ors. (Supra), 50% of his earnings will be deducted towards his personal and living expenses as he was unmarried.
Further, in view of the above Constitution Bench decision in the case of Pranay Sethi (supra) and judgment dated 02.11.2017 of the Hon'ble Delhi High Court in MACA No.798/2011 in the case Bajaj Allianz General Ins. Co. Ltd. Vs. Pooja & Ors., future prospects are also to be given in cases of persons working on fixed salary, those employed on contract basis and to labourers working on minimum wages and hence, 40% of the above amount of earnings is also liable to be added to earning of the deceased as future prospects since he was below 40 years of age at the time of accident.
Thus, the loss of dependency qua deceased Shiva in the present case comes to Rs.14,42,750.40 (Rs.9,542/- X 140/100 X MACP Nos.73/16, 74/16 & 75/16 Page no. 16 of 36 50/100 X 12 X 18) and the said amount is awardable to the petitioners under this head.
(ii) COMPENSATION UNDER NON-PECUNIARY HEADS The compensation to be granted in case of a death arising from a road accident under the non-pecuniary heads of loss of estate, loss of consortium, funeral expenses etc. came for active consideration before the Hon'ble Supreme Court in the above Constitution Bench judgment in the case of Pranay Sethi (Supra). Since, the deceased was unmarried, in terms of the propositions laid down by the Hon'ble Supreme Court in the said case, the petitioners are also held entitled to amounts of Rs. 15,000/- each under the heads of loss of estate and funeral expenses. However, no compensation can be awarded to the petitioners under any other head like loss of love and affection etc. being claimed by Ld. Counsel for the petitioners, in view of the law laid down in the above judgment and also followed by the Hon'ble Delhi High Court in its various judgments including the recent decision in the case of Bajaj Allianz General Insurance Co. Ltd. Vs. Pooja & Ors. (Supra). Hence, the petitioners are also entitled to a sum of Rs.30,000/- under the above two heads.
Thus, in view of above, the total amount of compensation under the above two heads in the present case comes to Rs.14,72,750.40 (Rs.14,42,750.40 + Rs.30,000/-). However, it has already been discussed above in detail that the deceased Shiva was equally responsible for the above accident and his contribution in causing the accident was taken as 50% with that of R-1, who was driving the said truck. Hence, the claimants of this case are held entitled to only 50% of the above amount, i.e. Rs.7,36,375.20 as compensation.
MACP Nos.73/16, 74/16 & 75/16 Page no. 17 of 36 The petitioners of MACP No.73/16 are thus held entitled to the compensation as given in the following summary of computation in the prescribed format:-
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN FORM IV-A
1. Date of accident : 02.03.2015
2. Name of the deceased : Shiva
3. Age of the deceased : 19 years & around 5 months
4. Occupation of the deceased : Non-matriculate
5. Income of the deceased : As per Minimum wages
6. Name, age and relationship of legal representative of deceased:-
Srl. No. Name Age Relation
(i) Smt. Asha 43 years Mother
(ii) Sh. Hans Raj 42 years Father
Computation of Compensation
Srl. No. Heads Amount Awarded
7. Income of the deceased (A) Rs. 9,542/-
8. Add-Future Prospects (B) Rs. 3,816.80
9. Less-Personal expenses of Rs. 6,679.40
the deceased (C)
10. Monthly loss of dependency Rs. 6,679.40
[(A+B) - C = D]
11 Annual loss of dependency Rs.80,152.80
(D x 12)
12 Multiplier (E) 18
13 Total loss of dependency (D Rs.14,42,750.40
x 12 x E = F)
14 Medical Expenses (G) Nil
15 Compensation for loss of Nil
love and affection (H)
16 Compensation for loss of Nil
consortium (I)
17 Compensation for loss of Rs.15,000/-
estate (J)
18 Compensation towards Rs.15,000/-
funeral expenses (K)
19 TOTAL COMPENSATION Rs.14,72,750.40, but
(F + G + H + I + J+K =L) awarded Rs.7,36,375.20
MACP Nos.73/16, 74/16 & 75/16 Page no. 18 of 36
(50% deducted towards
contributory negligence)
20 RATE OF INTEREST 9% pa from date of filing of
AWARDED DAR i.e. 20.08.2015 till 30
days from today and 12%
pa thereafter.
21 Interest amount up to the date Rs.2,17,160.07
of award (M)
22 Total amount including interest Rs.9,53,535.27
(L+M) being rounded off to
Rs.9,54,000/-
23 Award amount released P-1 = 10% out of entire
compensation
24 Award amount kept in FDRs P-1 = 90% out of entire
compensation
25 Mode of disbursement of the Through bank
award amount to claimant(s)
26 Next date for compliance of the 02.03.2019
award
RELIEF
The petitioners of MACP No.73/16 are thus awarded a sum of Rs.9,54,000/- (Rupees Nine Lacs and Fifty Four Thousand only), including interest @ 9% per annum from the date of filing of DAR, i.e. 20.08.2015, till date and interest at the same rate till 30 days from today or till notice of deposit is given to the petitioners, whichever is earlier and 12% per annum after expiry of 30 days from today. However, it is directed that the amount of interim award and interest for the suspended period, if any, during the course of this inquiry, shall be liable to be excluded from the above amount and calculations of compensation.
APPORTIONMENT As discussed above, since P-2 is not considered as a dependent upon the deceased at the time of his death, the entire compensation amount is being awarded in favour of P-1 Smt. Asha.
MACP Nos.73/16, 74/16 & 75/16 Page no. 19 of 36 RELEASE Out of the entire compensation amount, 10% amount is directed to be released to P-1 by transferring it into her savings bank account bearing no. 37595078442 being maintained at State Bank of India, Moti Bagh, New Delhi-21 with IFSC Code No. SBIN0001967 and remaining 90% amount is directed to be kept in 15 equal annual FDRs for a period of 1 year to 15 years in succession with cumulative interest. The amount of FDRs on maturity would also be released in her same account. This is, however, subject to addition of future interest till deposits and deduction of tax on the interest amount or amount of interim award, if any, to/from her above share.
The bank shall not permit any joint name (s) to be added in the above savings bank accounts or fixed deposit accounts of P-1 i.e. the savings bank account of the claimant shall be individual savings bank account and not a joint account (s). However, the concerned bank shall permit the claimant to withdraw money from her above savings bank account by means of a withdrawal form.
The original fixed deposits shall be retained by the UCO Bank, PHC, New Delhi in safe custody. However, the statement containing FDR numbers, FDR amounts, dates of maturity and maturity amounts shall be furnished by bank to the claimant.
The maturity amounts of the FDRs be credited by Electronic Clearing System (ECS) in the above mentioned savings bank account of the claimant.
No loan, advance or withdrawal or pre-mature discharge be allowed on the fixed deposits without permission of the Court.
P-1 has already produced before this tribunal her original passbook with requisite endorsements/certificate/letter of the Bank Manager concerned that no cheque books or ATM cards shall be MACP Nos.73/16, 74/16 & 75/16 Page no. 20 of 36 issued to her in the said account and she has also filed copies thereof on record, alongwith copies of her aadhar card and PAN card. It is directed that the concerned bank shall not issue any cheque book and/or debit card etc. to the claimant in future also.
27. COMPENSATION IN MACP No. 74/16
i) Loss of dependency As per depositions made by Smt. Nilam, i.e. mother of deceased Prateek, her son was also unmarried and aged about 21 years at the time of accident. She has also tendered on record, inter- alia, copies of the school identity card & aadhar card of her deceased son as Ex.PW3/1 & Ex.PW3/2 and some of his educational documents as Ex.PW3/5 to Ex.PW3/7. Though in aadhar card of the deceased only his year of birth is mentioned as 1994, but in his other educational documents/certificates his date of birth is also found to be recorded as 28.11.1994 and as per this document, the age of the deceased at the time of accident, i.e. 02.03.2015, comes to 20 years and around 3 months and hence, in terms of the law already discussed above, the multiplier of '18' is also held applicable in the present case.
Though in her affidavit Ex.PW3/A, PW3 has also claimed that her deceased son was doing private service and earning Rs.20,000/- per month, but admittedly, no document has been placed on record by her also to substantiate her these claims. As per the educational documents/certificates brought on record, the deceased was a student of senior secondary during the academic year 2014- 15, i.e. at the time of accident.
Since the deceased Prateek was also a resident of Delhi at the time of accident, his claim for compensation is also required to MACP Nos.73/16, 74/16 & 75/16 Page no. 21 of 36 be calculated only as per the minimum wages of workers in Delhi at the relevant time of accident. It is observed that at the relevant time of accident, the minimum wages for an unskilled worker in Delhi were Rs.8,632/- and for matriculates were Rs.10,478/-. Since there is also nothing on record to show that this deceased was engaged in any work and further since this is a beneficial legislation, the minimum wages for matriculates are held applicable in this case.
Coming to the dependency upon the deceased, it is found that this petition has also been filed only by parents of the deceased. During cross examination, PW3 has admitted that P-2, i.e. father of the deceased, is doing private work and earning around Rs.11,000/- to Rs.12,000/- per month and hence, in view of the above as well as the law laid already discussed, he cannot be treated as a dependent upon the deceased. Further, though PW3 has also stated that she is having one other son aged around 20 years, but even he cannot be treated as a dependent upon the deceased. In any case, in view of the law discussed above, 50% of his earnings will be deducted towards his personal and living expenses as he was unmarried and 40% of above amount is also liable to be added to earning of the deceased as future prospects.
Thus, the loss of dependency qua deceased Prateek in the present case comes to Rs.15,84,273.60 (Rs.10,478/- X 140/100 X 50/100 X 12 X 18) and the said amount is being awarded to the petitioners under this head.
(ii) COMPENSATION UNDER NON-PECUNIARY HEADS The compensation to be granted in case of a death arising from a road accident under the non-pecuniary heads of loss of estate, loss of consortium, funeral expenses etc. came for active consideration before the Hon'ble Supreme Court in the above MACP Nos.73/16, 74/16 & 75/16 Page no. 22 of 36 Constitution Bench judgment in the case of Pranay Sethi (Supra). Since, the deceased was unmarried, in terms of the propositions laid down by the Hon'ble Supreme Court in the said case, the petitioners are also held entitled to amounts of Rs. 15,000/- each under the heads of loss of estate and funeral expenses. However, in view of the law already discussed, no compensation can be awarded to the petitioners under any other head like loss of love and affection etc. Hence, the petitioners are also awarded a total sum of Rs.30,000/- under the above two heads.
The petitioners of MACP No.74/16 are thus held entitled to the compensation as given in the following summary of computation in the prescribed format:-
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN FORM IV-A
1. Date of accident : 02.03.2015
2. Name of the deceased : Prateek
3. Age of the deceased : 20 years & around 3 months
4. Occupation of the deceased : Matriculate
5. Income of the deceased : As per Minimum wages
6. Name, age and relationship of legal representative of deceased:-
Srl. No. Name Age Relation
(i) Smt. Nilam 42 years Mother
(ii) Sh. Daya Kishan 53 years Father
Computation of Compensation
Srl. No. Heads Amount Awarded
7. Income of the deceased (A) Rs.10,478/-
8. Add-Future Prospects (B) Rs.4,191.20
9. Less-Personal expenses of Rs.7,334.60
the deceased (C)
10. Monthly loss of dependency Rs.7,334.60
[(A+B) - C = D]
11 Annual loss of dependency Rs.88,015.20
(D x 12)
12 Multiplier (E) 18
MACP Nos.73/16, 74/16 & 75/16 Page no. 23 of 36
13 Total loss of dependency (D Rs.15,84,273.60
x 12 x E = F)
14 Medical Expenses (G) Nil
15 Compensation for loss of Nil
love and affection (H)
16 Compensation for loss of Nil
consortium (I)
17 Compensation for loss of Rs.15,000/-
estate (J)
18 Compensation towards Rs.15,000/-
funeral expenses (K)
19 TOTAL COMPENSATION Rs.16,14,273.60
(F + G + H + I + J+K =L)
20 RATE OF INTEREST 9% pa from date of filing of
AWARDED claim petition i.e.
30.07.2015 till 30 days
from today and 12% pa
thereafter.
21 Interest amount up to the date Rs.4,84,414.76
of award (M)
22 Total amount including interest Rs.20,98,688.36
(L+M) being rounded off to
Rs.20,99,000/-
23 Award amount released P-1 = 10% out of entire
compensation
24 Award amount kept in FDRs P-1 = 90% out of entire
compensation
25 Mode of disbursement of the Through bank
award amount to claimant(s)
26 Next date for compliance of the 02.03.2019
award
RELIEF
The petitioners of MACP No.74/16 are thus awarded a sum of Rs.20,99,000/- (Rupees Twenty Lacs and Ninety Nine Thousand only), including interest @ 9% per annum from the date of filing of claim petition, i.e. 30.07.2015, till date and interest at the same rate till 30 days from today or till notice of deposit is given to the petitioners, whichever is earlier and 12% per annum after expiry MACP Nos.73/16, 74/16 & 75/16 Page no. 24 of 36 of 30 days from today. However, it is directed that the amount of interim award and interest for the suspended period, if any, during the course of this inquiry, shall be liable to be excluded from the above amount and calculations of compensation.
APPORTIONMENT As discussed above, since P-2 is not considered as dependent upon the deceased at the time of his death, the entire compensation amount is being awarded in favour of P-1 Smt. Nilam. RELEASE Out of the entire compensation amount, 10% amount is directeds to be released to P-1 by transferring it into her savings bank account bearing no. 37605319915 being maintained at State Bank of India, Moti Bagh, New Delhi-21 with IFSC Code No. SBIN0001967 and remaining 90% amount is directed to be kept in 20 equal annual FDRs for a period of 1 year to 20 years in succession with cumulative interest. The amount of FDRs on maturity would also be released in her same account. This is, however, subject to addition of future interest till deposits and deduction of tax on the interest amount or amount of interim award, if any, to/from her above share.
The bank shall not permit any joint name (s) to be added in the above savings bank accounts or fixed deposit accounts of P-1 i.e. the savings bank account of the claimant shall be individual savings bank account and not a joint account (s). However, the concerned bank shall permit the claimant to withdraw money from her above savings bank account by means of a withdrawal form.
The original fixed deposits shall be retained by the UCO Bank, PHC, New Delhi in safe custody. However, the statement containing FDR numbers, FDR amounts, dates of maturity and MACP Nos.73/16, 74/16 & 75/16 Page no. 25 of 36 maturity amounts shall be furnished by bank to the claimant.
The maturity amounts of the FDRs be credited by Electronic Clearing System (ECS) in the above mentioned savings bank account of the claimant.
No loan, advance or withdrawal or pre-mature discharge be allowed on the fixed deposits without permission of the Court.
P-1 has already produced before this tribunal her original passbook with requisite endorsements/certificate/letter of the Bank Manager concerned that no cheque books or ATM cards shall be issued to her in the said account and she has also filed copies thereof on record, alongwith copies of her aadhar card and PAN card. It is directed that the concerned bank shall not issue any cheque book and/or debit card etc. to the claimant in future also.
28. COMPENSATION IN MACP No. 75/16
i) Loss of dependency As per the depositions made by Smt.Raj, i.e. mother of deceased Yatish, her son was unmarried and aged about 19 years at the time of accident. She has also tendered on record, inter-alia, a copy of aadhar card of his deceased son as Ex.PW2/4 and some of his educational documents as Ex.PW2/5 and Ex.PW2/6. Though in the aadhar card of deceased only his year of birth is mentioned as 1997, but in his other educational documents/certificates his date of birth is also found to be recorded as 07.10.1997 and going by these documents, age of the deceased at the time of accident, i.e. 02.03.2015, comes to 17 years and around 5 months. Hence, in terms of the law already discussed above, the multiplier of '18' is also held applicable in the present case.
Though in her affidavit Ex.PW2/A, PW2 has also claimed MACP Nos.73/16, 74/16 & 75/16 Page no. 26 of 36 that her deceased son was doing private service and earning Rs.20,000/- per month, but admittedly, no document has been placed by her also on record to substantiate her these claims. As per the educational documents/certificates brought on record, the deceased had not passed even his senior school examination for the year 2014, i.e. at the relevant time of accident.
Since this deceased was also a resident of Delhi at the time of accident, this claim for compensation is also required to be calculated as per the minimum wages fixed for workers in Delhi at the relevant time of accident. As already discussed above, the minimum wages for an unskilled worker were Rs.8,632/- and for matriculates the same were Rs.10,478/-. Since there is nothing on record to show that the deceased was engaged in any work and further since this is a beneficial legislation, the minimum wages for matriculates are held applicable in this case.
Coming to the dependency upon the deceased, it is found that this petition has also been filed only by parents of the deceased. During cross examination PW2 has admitted that P-2, i.e. father of the deceased, is a tailor and earning around Rs.11,000/- to Rs.12,000/- per month and hence, in view of the above as well as the law already discussed, he cannot be treated as a dependent upon the deceased. Further, though PW2 has also stated that she is having one daughter aged around 23 years and one other son aged around 18 years, but even they cannot be treated as dependents upon the deceased. In any case, in view of the law already discussed, 50% of his earnings will be deducted towards his personal and living expenses as he was unmarried and 40% of above amount is also liable to be added to earning of the deceased as future prospects.
MACP Nos.73/16, 74/16 & 75/16 Page no. 27 of 36 Thus, the loss of dependency qua deceased Yatish in the present case comes to Rs.15,84,273.60 (Rs.10,478/- X 140/100 X 50/100 X 12 X 18) and the said amount is being awarded to the petitioners under this head.
(ii) COMPENSATION UNDER NON-PECUNIARY HEADS The compensation to be granted in case of a death arising from a road accident under the non-pecuniary heads of loss of estate, loss of consortium, funeral expenses etc. came for active consideration before the Hon'ble Supreme Court in the above Constitution Bench judgment in the case of Pranay Sethi (Supra). Since, the deceased was unmarried, in terms of the propositions laid down by the Hon'ble Supreme Court in the said case, the petitioners are also held entitled to amounts of Rs. 15,000/- each under the heads of loss of estate and funeral expenses. However, in view of the law already discussed, no compensation can be awarded to the petitioners under any other head like loss of love and affection etc. Hence, the petitioners are also awarded a total sum of Rs.30,000/- under the above two heads.
The petitioners of MACP No.75/16 are thus held entitled to the compensation as given in the following summary of computation in the prescribed format:-
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN FORM IV-A
1. Date of accident : 02.03.2015
2. Name of the deceased : Yatish
3. Age of the deceased : 17 years & around 5 months
4. Occupation of the deceased : Matriculate
5. Income of the deceased : As per Minimum wages
6. Name, age and relationship of legal representative of deceased:-
Srl. No. Name Age Relation
(i) Smt. Raj 42 years Mother
(ii) Sh. Shadi Lal 51 years Father
MACP Nos.73/16, 74/16 & 75/16 Page no. 28 of 36
Computation of Compensation
Srl. No. Heads Amount Awarded
7. Income of the deceased (A) Rs.10,478/-
8. Add-Future Prospects (B) Rs.4,191.20
9. Less-Personal expenses of Rs.7,334.60
the deceased (C)
10. Monthly loss of dependency Rs.7,334.60
[(A+B) - C = D]
11 Annual loss of dependency Rs.88,015.20
(D x 12)
12 Multiplier (E) 18
13 Total loss of dependency (D Rs.15,84,273.60
x 12 x E = F)
14 Medical Expenses (G) Nil
15 Compensation for loss of Nil
love and affection (H)
16 Compensation for loss of Nil
consortium (I)
17 Compensation for loss of Rs.15,000/-
estate (J)
18 Compensation towards Rs.15,000/-
funeral expenses (K)
19 TOTAL COMPENSATION Rs.16,14,273.60
(F + G + H + I + J+K =L)
20 RATE OF INTEREST 9% pa from date of filing of
AWARDED claim petition i.e.
30.07.2015 till 30 days
from today and 12% pa
thereafter.
21 Interest amount up to the date Rs.4,84,414.76
of award (M)
22 Total amount including interest Rs.20,98,688.36
(L+M) being rounded off to
Rs.20,99,000/-
23 Award amount released P-1 = 10% out of entire
compensation
24 Award amount kept in FDRs P-1 = 90% out of entire
compensation
25 Mode of disbursement of the Through bank
award amount to claimant(s)
MACP Nos.73/16, 74/16 & 75/16 Page no. 29 of 36
26 Next date for compliance of the 02.03.2019
award
RELIEF
The petitioners of MACP No.75/16 are thus awarded a sum of Rs.20,99,000/- (Rupees Twenty Lacs and Ninety Nine Thousand only), including interest @ 9% per annum from the date of filing of claim petition, i.e. 30.07.2015, till date and interest at the same rate till 30 days from today or till notice of deposit is given to the petitioners, whichever is earlier and 12% per annum after expiry of 30 days from today. However, it is directed that the amount of interim award and interest for the suspended period, if any, during the course of this inquiry, shall be liable to be excluded from the above amount and calculations of compensation.
APPORTIONMENT As discussed above, since P-2 is not considered as dependent upon the deceased at the time of his death, the entire compensation amount is being awarded in favour of P-1 Smt. Raj. RELEASE Out of the entire compensation amount, 10% amount is directed to be released to P-1 by transferring it into her savings bank account bearing no. 37603389420 being maintained at State Bank of India, Moti Bagh, New Delhi-21 with IFSC Code No. SBIN0001967 and remaining 90% amount is directed to be kept in 20 equal annual FDRs for a period of 1 year to 20 years in succession with cumulative interest. The amount of FDRs on maturity would also be released in her same account. This is, however, subject to addition of future interest till deposits and deduction of tax on the interest amount or amount of interim award, if any, to/from her above share.
The bank shall not permit any joint name (s) to be added in the above savings bank accounts or fixed deposit accounts of P-1 MACP Nos.73/16, 74/16 & 75/16 Page no. 30 of 36 i.e. the savings bank account of the claimant shall be individual savings bank account and not a joint account (s). However, the concerned bank shall permit the claimant to withdraw money from her above savings bank account by means of a withdrawal form.
The original fixed deposits shall be retained by the UCO Bank, PHC, New Delhi in safe custody. However, the statement containing FDR numbers, FDR amounts, dates of maturity and maturity amounts shall be furnished by bank to the claimant.
The maturity amounts of the FDRs be credited by Electronic Clearing System (ECS) in the above mentioned savings bank account of the claimant.
No loan, advance or withdrawal or pre-mature discharge be allowed on the fixed deposits without permission of the Court.
P-1 has already produced before this tribunal her original passbook with requisite endorsements/certificate/letter of the Bank Manager concerned that no cheque books or ATM cards shall be issued to her in the said account and she has also filed copies thereof on record, alongwith copies of her aadhar card and PAN card. It is directed that the concerned bank shall not issue any cheque book and/or debit card etc. to the claimant in future also.
29. LIABILITY IN MACP NO.73/16 It has already been discussed above that the deceased Shiva was equally responsible for the above accident and his contribution in causing the accident has been taken as 50% with that of R-1, who was driving the said truck, and further that the above claim petition filed by LRs of the deceased Shiva is maintainable against driver/R-1, owner/R-2 and insurer/R-3 of the truck involved in the accident and not against R-4, who is registered owner of the car. Hence, though R-1, R-2 and R-3 are all held jointly and severally MACP Nos.73/16, 74/16 & 75/16 Page no. 31 of 36 liable to pay compensation to the petitioners/claimants of this claim petition, but since R-3 has not proved any violation of the terms and conditions of insurance policy of the said truck issued by it on the part of R-1 & R-2, R-3 being insurer of the offending truck is directed to pay and deposit the compensation with the Manager, UCO Bank, Patiala House Court Branch, alongwith interest @ 9% per annum, by way of crossed cheque/DD in name of the claimant within 30 days from today failing which it will be liable to pay interest at the rate of 12% per annum for the period of delay. In case even after passage of 90 days from today, R-3 fails to deposit this compensation with proportionate interest, in that event, in light of the judgment of the Hon'ble High Court of Delhi in the case of New India Assurance Company Limited Vs. Kashmiri Lal, 2007 ACJ 688, this compensation shall be recovered by attaching the bank account of the insurance company with a cost of Rs.5,000/-. R-3 shall inform the claimant and her counsel through registered post that the cheque of the awarded amount is being deposited so as to facilitate her to collect the cheque.
30. LIABILITY IN MACP Nos.74/16 & 75/16 As already discussed above, these claim petitions were originally filed by the petitioners against R-1, R-2 and R-3 as driver, owner and insurer of the above truck and it was only subsequently that the name of R-4 was brought on record of these petitions, on an application under Order 1 Rule 10 read with Section 151 CPC moved on behalf of R-3. However, since, it has already been held that the above accident took place due to composite/contributory negligence of drivers of both the vehicles, the driver, owner and insurer of these vehicles can be equally held liable for consequences of the same. It also been discussed above that driver of the above car namely Shiva MACP Nos.73/16, 74/16 & 75/16 Page no. 32 of 36 stood expired in the same accident and though, this car is stated to have been purchased by him from its registered owner, i.e R-4 Smt. Asha Bisht, about one year prior to the above accident, but no documentary proof of sale and purchase of said vehicle has been brought on record and R-4 continued to be its registered owner in records. Hence, as per the settled law R-4 being registered owner continues to be liable for consequences of the acts of her driver/ agent, i.e. the deceased Shiva, as well as of the above accident. Therefore, her liability to pay compensation in these two petitions filed qua the death of deceased Prateek and Yatish respectively, who both were occupants of the car driven by Shiva and owned by R-4, comes to 50% and remaining 50% liability is to be borne by R-1, R-2 and R-3 jointly, who are the driver, owner and insurer respectively of the above truck, and the liability of R-1, R-2 & R-3 inter-se is joint and several.
However, since the petitioners have made their intentions clearly manifest by filing these claim petitions against R-1 to R-3 only, hence, in view of law laid down in the cases of Kamlesh & Ors. and Savitri Devi & Ors. etc. (Supra) they are held entitled to claim and recover the awarded amount of compensation from them only and amongst R-1, R-2 and R-3 their liability is joint and several. However, since R-3 has not proved any violation of the terms and conditions of insurance policy of the said truck issued by it on the part of R-1 & R-2, R-3 being insurer of the offending truck is directed to pay and deposit the entire amount of compensation in these two petitions with the Manager, UCO Bank, Patiala House Court Branch, alongwith interest @ 9% per annum, by way of crossed cheques/ DDs in name of the claimants within 30 days from today failing which it will be liable to pay interest at the rate of 12% per annum for the MACP Nos.73/16, 74/16 & 75/16 Page no. 33 of 36 period of delay. In case even after passage of 90 days from today, R- 3 fails to deposit this compensation with proportionate interest, in that event, in light of the judgment of the Hon'ble High Court of Delhi in the case of New India Assurance Company Limited Vs. Kashmiri Lal, 2007 ACJ 688, this compensation shall be recovered by attaching the bank account of the insurance company with a cost of Rs.5,000/-. However, liberty is being given to R-3 to recover 50% of the deposited amount in these two petitions from R-4 as per law.
R-3 shall inform the claimants and their counsel through registered posts that the cheques of the awarded amount are being deposited so as to facilitate them to collect their cheques/DDs.
31. The copy of this award be given to the parties free of cost. Ahlmad is directed to send the copy of the award to Ld. Metropolitan Magistrate concerned and Delhi Legal Services Authority in view of Judgment titled as Rajesh Tyagi Vs. Jaibir Singh & Ors. passed in FAO no.842/2003 dated 12.12.2014.
32. Further Nazir is directed to maintain the record in Form VII as per the directions given by the Hon'ble Delhi High Court in the above case on 15.12.2017.
33. The particulars of Form-V of the Modified Claims Tribunal Agreed Procedure, in terms of directions given by the Hon'ble Delhi High Court in the above case on 15.12.2017, are as under:
1. Date of the accident 02.03.2015
2. Date of intimation of the accident by Not given I.O. to the Claims Tribunal.
3. Date of intimation of the accident by
-do-
I.O. to the Insurance company.
4. Date of filing of Report u/s.173 Cr.PC
-do-
before the Metropolitan Magistrate.
5. Date of filing of Details Accident 20.08.2015 Report (DAR) by IO before Claims MACP Nos.73/16, 74/16 & 75/16 Page no. 34 of 36 Tribunal.
6. Date of service of DAR on Insurance
-do-
Company
7. Date of service of DAR on
-do-
claimant(s).
8. Whether DAR was complete in all Yes respects?
9. If not, state deficiencies in the DAR No
10. Whether the police has verified the Yes documents file with DAR?
11. Whether there was any delay or deficiency on the part of the DARs have been filed after around 5 ½ Investigating Officer? If so, whether months of the accident any action/direction warranted?
12. Date of appointment of Designated Not given Officer by the Insurance Company.
13. Name, address and contact number of the Designated Officer of Not given Insurance Co.
14. Whether the Designated Officer of the Insurance Company submitted his No report within 30 days of the DAR?
15. Whether the Insurance Company admitted the liability? If so, whether the Designated Officer of the Insurance Company fairly computed Legal offer not given the compensation in accordance with law.
16. Whether there was any delay or deficiencies on the part of the Designated Officer of the Insurance Delay in filing WS/reply Company? If so, whether any action/direction warranted?
17. Date of response of the claimant(s) of Legal offer not given the offer of the Insurance Company.
18. Date of the award 28.11.2018
19. Whether the award was passed with No the consent of the parties?
20. Whether the claimant(s) were directed to open savings bank Yes account(s) near their place of residence?
21. Date of order by which claimant(s) 22.01.2018 were directed to open savings bank account(s) near his place of residence and produce PAN Card and Adhaar Card and the direction to the bank not issue any cheque book/ MACP Nos.73/16, 74/16 & 75/16 Page no. 35 of 36 debit card to claimants and make an endorsement to this effect on passbooks.
22. Date on which the claimant(s) produced the passbook of their 02.04.2018 & 04.06.2018 savings bank account near the place of their residence alongwith endorsement, PAN & Adhaar Cards?
23. Permanent Residential Address of the MACP No.73/16 Claimant(s) R/o. H. No.152, Mochi Bagh Village, Delhi-110021.MACP No.74/16
R/o. R/o. H. No. 19, Moti Bagh Village, Chankya Puri, Moti Bagh-II, South West Delhi-110021.
MACP No.75/16R/o. H. No.135, Mochi Bagh Gaon, Chankya Puri, South West Delhi-
110021.
24. Details of savings bank account (s) of MACP No.73/16 the claimant(s) and the address of the P-1 = A/c. No. 37595078442 being bank with IFSC Code. maintained at State Bank of India, Moti Bagh, New Delhi-21 with IFSC Code No. SBIN0001967 MACP No.74/16 P-1 = A/c. No. 37605319915 being maintained at State Bank of India, Moti Bagh, New Delhi-21 with IFSC Code No. SBIN0001967 MACP NO.75/16 P-1 = A/c. No. 37603389420 being maintained at State Bank of India, Moti Bagh, New Delhi-21 with IFSC Code No. SBIN0001967
25. Whether the claimant(s) savings bank account(s) is near his/her place of Yes residence?
26. Whether the claimant(s) were examined at the time of passing of Yes the award to ascertain his/their financial condition?
34. Files be consigned to Records after necessary formalities. Separate files be prepared for compliance report and be put up on 02.03.2019. MANOJ Digitally signed by MANOJ KUMAR KUMAR NAGPAL Date: 2018.11.29 NAGPAL 16:44:31 +0530 Announced in the open court. (M.K.Nagpal) on 28.11.2018 PO/MACT, New Delhi MACP Nos.73/16, 74/16 & 75/16 Page no. 36 of 36