Delhi District Court
Lata Sharma vs Pappu on 7 June, 2018
IN THE COURT OF SH. DEVENDER KUMAR, PO-MACT,
SHAHDARA DISTRICT, KARKARDOOMA COURTS, DELHI
MAC No. 354/16 (Old No. 139/12)
1. Lata Sharma
D/o Sh. Ravi Prakash Sharma
2. Divya Sharma
D/o Sh. Ravi Prakash Sharma
3. Ekta Sharma
D/o Sh. Ravi Prakash Sharma
4. Anuj Sharma
S/o Sh. Ravi Prakash Sharma
(Through Petitioner Nos. 1 to 3 being minor)
All R/o House No. 570,
Jawala Nagar, Shahdara,
Delhi-110093. ....Petitioners
Versus
1. Pappu
S/o Sh. Wahid,
R/o Village & Post Masoori,
Distt. Ghaziabad, UP. Driver
2. Khushi Mohd.
S/o Sh. Asgar Ali,
R/o 1135, Sector-9,
Vijay Nagar, Ghaziabad, UP Owner
3. HDFC Agro General Insurance Co. Ltd.
C/o N-22, 2nd Floor, Sector 18,
Noida, UP. Insurance Company
....Respondents
MAC No.354/16 Lata Sharma & Ors Vs. Pappu & Ors.
MAC No.353/16 Lata Sharma Vs. Pappu & Ors.
MAC No.352/16 Ekta Sharma Vs. Pappu & Ors.
MAC No.351/16 Ramji Vs. Pappu & Ors. 1/41
AND
MAC No. 353/16 (Old No. 138/12)
Lata Sharma
D/o Sh. Ravi Prakash Sharma
R/o House No. 570,
Jawala Nagar, Shahdara,
Delhi-110093. ....Petitioner
Versus
1. Pappu
S/o Sh. Wahid,
R/o Village & Post Masoori,
Distt. Ghaziabad, UP. Driver
2. Khushi Mohd.
S/o Sh. Asgar Ali,
R/o 1135, Sector-9,
Vijay Nagar, Ghaziabad,
Uttar Pradesh
3. HDFC Agro General Insurance Co. Ltd.
C/o N-22, 2nd Floor, Sector 18,
Noida, UP. Insurance Company
....Respondents
MAC No.354/16 Lata Sharma & Ors Vs. Pappu & Ors.
MAC No.353/16 Lata Sharma Vs. Pappu & Ors.
MAC No.352/16 Ekta Sharma Vs. Pappu & Ors.
MAC No.351/16 Ramji Vs. Pappu & Ors. 2/41
AND
MAC No. 352/16 (Old No. 140/12)
Ekta Sharma
D/o Sh. Ravi Prakash Sharma
R/o House No. 570,
Jawala Nagar, Shahdara,
Delhi-93. ....Petitioner
Versus
1. Pappu
S/o Sh. Wahid,
R/o Village & Post Masoori,
Distt. Ghaziabad, UP. Driver
2. Khushi Mohd,
S/o Sh. Asgar Ali,
R/o 1135, Sector-9,
Vijay Nagar, Ghaziabad,
Uttar Pradesh Owner
3. HDFC Agro General Insurance Co. Ltd.
C/o N-22, 2nd Floor, Sector 18,
Noida, UP. Insurance Company
....Respondents
MAC No.354/16 Lata Sharma & Ors Vs. Pappu & Ors.
MAC No.353/16 Lata Sharma Vs. Pappu & Ors.
MAC No.352/16 Ekta Sharma Vs. Pappu & Ors.
MAC No.351/16 Ramji Vs. Pappu & Ors. 3/41
AND
MAC No. 351/16 (Old No. 141/12)
Ramji
S/o Sh. Ram Avtar
R/o House No. 570,
Jawala Nagar, Shahdara,
Delhi-93. ....Petitioner
Versus
1. Pappu
S/o Sh. Wahid,
R/o Village & Post Masoori,
Distt. Ghaziabad, UP. Driver
2. Khushi Mohd,
S/o Sh. Asgar Ali,
R/o 1135, Sector-9,
Vijay Nagar, Ghaziabad, UP Owner
3. HDFC Agro General Insurance Co. Ltd.
C/o N-22, 2nd Floor, Sector 18,
Noida, UP. Insurance Company
....Respondents
Date of Institution : 11.09.2012
Date of Arguments : 02.06.2018
Date of Judgment : 07.06.2018
MAC No.354/16 Lata Sharma & Ors Vs. Pappu & Ors.
MAC No.353/16 Lata Sharma Vs. Pappu & Ors.
MAC No.352/16 Ekta Sharma Vs. Pappu & Ors.
MAC No.351/16 Ramji Vs. Pappu & Ors. 4/41
JUDGMENT:
1. Vide this judgment I shall dispose off four cases filed by the petitioners with the facts that on 04.12.2011 at about 5.00 pm, deceased Avantika Sharma @ Varsha along with other injured was waiting for a vehicle at Village Anwar Pur mor, Distt. Punchsheel Nagar, UP to go to Pilkhuwa, Distt. Punchsheel, UP, in the meanwhile, one tempo bearing No. UP-17A 7644 being driven by its driver in rash and negligent manner hit against deceased and other persons waiting there and all of them sustained injuries. It is further stated that the deceased was removed to Saraswati Institute of Medical Sciences, Anwar Pur, Distt. Punchsheel Nagar, UP, but was referred to Safdarjung Hospital where she was declared dead during treatment on 06.12.2011. It is further stated that Post Mortem was conducted on the dead body of deceased. During the same accident, other injured namely Ekta Sharma, Lata Sharma and Ramji also sustained injuries. All the injured/ petitioners have filed four separate claims qua injury / death of deceased arising out of this accident.
1.1. The LR's of deceased Avantika Sharma @ Varsha have alleged that she was aged about 28 years and was earning Rs. 10,000/- pm by taking tuitions and a compensation of Rs. 20 Lakhs is claimed along with interest @ 18% per annum.
1.2. Injured Lata Sharma has alleged that she was aged about 23 years at the time of accident and was earning Rs. 5,000/- pm by taking MAC No.354/16 Lata Sharma & Ors Vs. Pappu & Ors.
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tuitions and has claimed a compensation of Rs. 5 Lakhs along with interest @ 18% p.a. 1.3. Injured Ekta Sharma has alleged that she was aged about 20 years at the time of accident and was earning Rs. 4,000/- pm by her private job. Injured has claimed a compensation of Rs. 5 Lacs along with interest @ 18 %p.a. 1.4. Injured Ramji has alleged that he was aged about 58 years at the time of accident and was earning Rs. 16,640/- pm by his job as Primary Teacher with Basic Primary School, Pilkhuwa, UP. Injured has claimed a compensation of Rs. 10 Lacs along with interest @ 18% p.a.
2. Respondents No. 1 & 2 i.e. Driver and Owner were served by the way of publication in newspaper 'Maha Medha', but failed to appear and were proceeded ex-parte on 16.08.2014.
3. Respondent No. 3 i.e. HDFC Agro General Insurance Company Ltd. has filed a reply in all petitions thereby stating that all the petitions are bad for non-joinder / mis-joinder of necessary parties as driver, owner and insurer of Tempo No. UP-14CT-3727 have not been impleaded to these cases whereas they were necessary parties and these petitions are not maintainable. It is further stated that this court has no territorial jurisdiction to entertain this petition as this accident took place outside the jurisdiction of this court and even claimants were also not residing at Delhi at the time of accident and these cases MAC No.354/16 Lata Sharma & Ors Vs. Pappu & Ors.
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are liable to be dismissed. Respondent has denied all the allegations of the petitioners in all cases and has prayed that all petitions are liable to be dismissed.
4. From the pleading of the parties following issues are framed as under:
MAC No. 354/16 (Old No. 139/12)
1. Whether the deceased Avantika Sharma @ Varsha suffered fatal injuries in the accident occurred on 04.12.2011 due to rash and negligent driving of vehicle No. UP-17A-7644 being driven by respondent No. 1? OPP
2. Whether the petitioners are entitled for any compensation, if so, to what amount and from whom? OPP
3. Relief.
MAC No. 353/16 (Old No. 138/12)
1. Whether the petitioner suffered injuries in the accident occurred on 04.12.2011 due to rash and negligent driving of vehicle No. UP-17A 7644 being driven by respondent No. 1? OPP
2. Whether the petitioner is entitled for any compensation, if so, to what amount and from whom? OPP
3. Relief.
MAC No.354/16 Lata Sharma & Ors Vs. Pappu & Ors.
MAC No.353/16 Lata Sharma Vs. Pappu & Ors. MAC No.352/16 Ekta Sharma Vs. Pappu & Ors. MAC No.351/16 Ramji Vs. Pappu & Ors. 7/41 MAC No. 352/16 (Old No. 140/12)
1. Whether the petitioner suffered injuries in the accident occurred on 04.12.2011 due to rash and negligent driving of vehicle No. UP-17A 7644 being driven by respondent No. 1? OPP
2. Whether the petitioner is entitled for any compensation, if so, to what amount and from whom? OPP
3. Relief.
MAC No. 351/16 (Old No. 141/12)
1. Whether the petitioner suffered injuries in the accident occurred on 04.12.2011 due to rash and negligent driving of vehicle No. UP-17A 7644 being driven by respondent No. 1? OPP
2. Whether the petitioner is entitled for any compensation, if so, to what amount and from whom? OPP
3. Relief.
5. Total four petitions were filed against the accident and all were clubbed together vide order dated 16.08.2014 and petition No. 354/16 (Old MAC No. 139/12) was treated as main petition to lead evidence. All these petitions are being decided together being arising out of same accident and filed with similar set of facts. It is also necessary to avoid any conflict of legal opinion of this court.
MAC No.354/16 Lata Sharma & Ors Vs. Pappu & Ors.
MAC No.353/16 Lata Sharma Vs. Pappu & Ors. MAC No.352/16 Ekta Sharma Vs. Pappu & Ors. MAC No.351/16 Ramji Vs. Pappu & Ors. 8/41
6. To prove all the cases, petitioners have examined PW1 Ekta Sharma who has deposed that on 04.12.2011 at about 4.00 pm, she along with other injured and deceased was standing at village Anwar Pur Mor, NH 24, Distt. Hapur, UP to board a vehicle to go her home and one vehicle bearing No. UP-CT 3727 reached the spot, but suddenly the Respondent No. 1 while driving his TATA 407 tempo bearing No. UP-17C 7644 in rash and negligent manner hit against the vehicle being boarded by her along with other injured and caused all of them injuries. It is further deposed that she along with other injured was removed to Saraswati Institute of Medical Sciences, Anwarpur, Hapur, UP, but, thereafter, shifted to Dr. Hedgewar Hospital where received entire treatment. It is further deposed that the Police lodged an FIR No. 425/11 u/s 279/337/338/304A/427 IPC with PS Pilkhuwa, UP and respondent is facing trial in that case. It is further deposed that she has spent Rs. 10,000/- on her medical treatment. It is further deposed that she was working with Private Company and was earning Rs. 4,000/- pm and could not do work for long and suffered loss of earnings. She has relied upon the document i.e. rent agreement Ex.PW1/1, copy of FIR as Ex.PW1/2, medical bills as Ex.PW1/3. She was not subjected to cross examination by the respondents and her testimony is un-rebutted.
6.1. PW2 Lata Sharma has corroborated the testimony of PW1 about the mode and manner of this accident and has deposed that she also sustained injuries during this accident caused by the offending vehicle MAC No.354/16 Lata Sharma & Ors Vs. Pappu & Ors.
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being driven by the respondent No. 1 and has spent Rs. 15,000/- on her medical expenses besides suffering loss of earnings @ Rs. 5,000/- pm by his tuition earning. She has relied upon the documents i.e. medical bills as Ex. PW2/A. 6.2. PW2/1A Lata Sharma has also corroborated the testimonies of PW1 and PW2 about the mode and manner of accident caused by the respondent No.1 while driving the offending vehicle in rash and negligent manner and resulted into sustaining fatal injuries by her sister Avantika Sharma @ Varsha. She has further deposed that her sister sustained injuries during this accident and was initially removed to Saraswati Institute of Medical Sciences and then referred to Safadarjung Hospital, Delhi where she died during treatment on 06.11.2012. It is further deposed that the deceased was working as tutor and was earning Rs. 10,000/- pm. It is further deposed that an amount of Rs. 50,000/- was spent as the treatment of deceased prior to her death.
6.3. PW3 Ramji is another injured of this accident and has corroborated the mode and manner of accident as proved by other witnesses. He has deposed that he also sustained injuries during this accident and has spent Rs. 2 lacs on his treatment. It is further deposed that he was earning Rs. 16,640/- pm by his salary as primary teacher with Basic Primary School, Pilkhuwa, UP and suffered loss of earning by his permanent disability. He has relied upon the documents MAC No.354/16 Lata Sharma & Ors Vs. Pappu & Ors.
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i.e. salary slip as Ex.PW3/1, certified copy of FIR as Ex.PW3/2, voter ID Mark A, medical bills as Ex.PW3/A and treatment record as Ex.PW3/4.
6.4. PW4 Dr. Upender Kishore has proved the Post Mortem report of the deceased Varsha as Ex.PW4/A.
7. R3W1 Dependra Singh is Legal Manager of Insurance Company and has deposed that this accident took place thereby involving two vehicles i.e. the offending vehicle No. UP-17A-7644 and another vehicle No. UP-14CT-3727, but other vehicle has not been impleaded. It is further deposed that on 04.12.2011, the offending vehicle was parked in road side and was not in running condition, but was hit by vehicle No. UP-14T 3727 but petitioners have raised this claim against the vehicle which was not at fault, whereas the another vehicle which caused this accident has not been impleaded to this case and all claim petitions are liable to be dismissed. It is further deposed that respondent No. 2 was not carrying any permit to ply the vehicle and even has failed to produce the same despite service of legal notice u/o 12 rule 8 CPC, due to it amounts to violation of insurance policy and insurance company is not liable to pay this compensation. He has relied upon the documents i.e. copy of notice u/o 12 rule 8 CPC as Mark A, copy of Insurance policy as Ex.R3W1/1, copy of site plan as Mark B, copy of mechanical inspection report of vehicle bearing No. UP-17A 7644 as Mark C, copy of mechanical inspection report of MAC No.354/16 Lata Sharma & Ors Vs. Pappu & Ors.
MAC No.353/16 Lata Sharma Vs. Pappu & Ors. MAC No.352/16 Ekta Sharma Vs. Pappu & Ors. MAC No.351/16 Ramji Vs. Pappu & Ors. 11/41
vehicle No. UP- 14CT 3727 as Mark D and copy of judgment of MACT Court, Ghaziabad in case titled Mohd. Ajad and Ors. Vs. Khushi Mohd. as Mark E.
8. I have heard the arguments and perused the record. I am taking up issue No. 1 in all the petitions together as this issue in all the petitions is common and similar. My Issue-wise findings are as under:
ISSUE NO. 1 in All petitions - The onus to prove this issue was fixed upon the petitioners. To discharge this onus, petitioners have examined PW1 to PW4. Petitioners are required to prove rash and negligence driving of the driver of offending vehicle to prove the compensation under Section 166 of M.V. Act. Legal proposition regarding the aspect of discharging the onus to prove this fact is well established. The law to this effect is relevant to be considered. It is held in Oriental Insurance Co. Ltd. v. Premlata Shukla & Ors. III (2007) ACC 54 (SC) that the insurer, however, would be liable to reimburse the insured to the extent of the damages payable by the owner to the claimants subject of course to the limit of its liability as laid down in the Act or the contract of insurance. Proof of rashness and negligence on the part of the driver of the vehicle, is therefore, sine qua non for maintaining an application under section 166 of the Act.
9. A similar proposition has held in case titled DTC and Another v. Rajeshwari Sankar And Ors MAC. A. No-442/2005 dated 25/5/13 that rash and negligence is supposed to be proved to claim the MAC No.354/16 Lata Sharma & Ors Vs. Pappu & Ors.
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compensation u/s 166 of M.V. Act. Even the Hon'ble High of Delhi in MAC App. No.200/2012 case titled United India Insurance Co. Ltd. V. Smt. Rinki @ Rinku & Ors dated 23/07/2012 has held that negligence is a sine qua non to a Petition under Section 166 of the Motor Vehicles Act, 1988 (the Act). Even the similar proposition has been repeated in Oriental Insurance Company Limited v. Meena Variyal and Ors., (2007) 5 SCC 428, Minu B. Mehta and Anr. v. Balkrishna Ramchandra Nayan and Anr., 1977(2) SCC 441 and Surender Kumar Arora and Anr v. Manoj Bisla and Ors., (2012)4 SCC 552.
10. The mode and manner of proving the rash and negligent driving of the offending vehicle has also been considered in various other judgments and has held that this onus to prove the rash and negligent driving is not to be discharged beyond doubt or in similar manner as a fact is to be proved in a civil case. Rather it has to be proved on the touchstone of preponderance of probability and holistic view is to be taken while dealing with the Claim Petition based upon negligence. The observation of the Hon'ble High Court made in New India Assurance Co. Ltd. V. Sakshi Bhutani & ors, MAC APP. 550/2011 decided on 02.07.2012 is relevant that it has to be borne in mind that the Motor Vehicles Act does not envisage holding a trial for a petition preferred under Section 166 of the Act. Under Section 168 of the Act, a Claims Tribunal is enjoined to hold an inquiry to determine compensation which must appear to it to be just. Strict rules of MAC No.354/16 Lata Sharma & Ors Vs. Pappu & Ors.
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evidence are not applicable in an inquiry conducted by the Claims Tribunal. Further in State of Mysore Vs. S.S. Makapur, 1993 (2) SCR 943, the Hon'ble Supreme Court has held that the Tribunals exercising quasi-judicial functions are not courts and are not bound by strict rules of evidence.
11. Further, the approach of the tribunal has also been defined by the Hon'ble Supreme Court of India in N.K.V. Bros. (P) Ltd. v. M. Marumai Ammal, 1980 ACJ 435 (SC) that the Accidents Claims Tribunal must take special care to see that innocent victims do not suffer and persons liable do not escape liability merely because of some doubt here and some obscurity there. The court should not succumb to niceties, technicalities and mystic maybes. The court is bound to take broad view of the whole matter. As such, the cases of the petitioners have to be decided in view of the above said proposition of law.
12. In the present cases, admittedly, all the PWs except PW4 are eye witnesses as well as injured of this accident and they have categorically proved that on 04.12.2011 at about 4.00 pm, they along with deceased were standing at village Anwarpur mor / turn, NH 24, Distt. Hapur, UP to go Pilkhuwa, when the offending vehicle bearing No. UP-17A-7644 being driven by its driver in rash and negligent manner struck against Tempo No. UP-14CT-3727 which resulted into sustaining injuries by them including fatal injuries by deceased Avantika @ Varsha. The testimonies of all PWs are unrebutted in the MAC No.354/16 Lata Sharma & Ors Vs. Pappu & Ors.
MAC No.353/16 Lata Sharma Vs. Pappu & Ors. MAC No.352/16 Ekta Sharma Vs. Pappu & Ors. MAC No.351/16 Ramji Vs. Pappu & Ors. 14/41
absence of cross examination by the respondents as they failed to appear for cross examine of all witnesses. With the un-rebutted testimonies of PWs 1 to 3, it stands proved that the respondent No. 1 caused this accident while driving his offending vehicle bearing No. UP- 17A 7644 in rash and negligent manner. It is further proved that an FIR No. 425/11 was registered u/s 279/37/338/304A/427 IPC against the respondent No. 1. Though petitioners have not proved criminal charge-sheet filed against respondent No. 1 in pursuance of FIR, yet in view of the unrebutted testimonies of PWs, it stands proved that the respondent No. 1 caused this accident by his rash and negligent driving. Respondent No. 3 has examined R3W1 to prove the document i.e. site plan which is Mark B which has proved the spot of accident, mechanical inspection report of both vehicles involved in this accident as Mark C and Mark D and these have corroborated the damage to both the vehicles and have proved that both the vehicles were involved in this accident and the extent of damage has proved impact of collusion which could have easily caused the injuries to the persons nearby to the spot of accident. The offending vehicle caused this accident and respondent No. 1 was driving that offending vehicle and is responsible for this accident. Respondent No.2 is the owner of this vehicle and is vicariously liable for the act of the driver who caused this accident.
13. Ld. Counsel for respondent has argued that this accident was involving another vehicle also but the driver, owner and insurance company of that Vehicle No. UP-17A-7644 have not been impleaded to MAC No.354/16 Lata Sharma & Ors Vs. Pappu & Ors.
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this case and this case is bad for non joinder / mis joinder of necessary parties, but this argument has no force. Two vehicles were involved in the accident and it has also proved by FIR, but it is not proved by the respondents that the other vehicle was at fault in causing this accident and rather they have preferred to abstain themselves to cross examine the PWs. The pleadings as well as FIR are clear that the offending vehicle impleaded herein was at fault in causing this accident, and it is sufficient to prove the negligence of the driver of the offending vehicle. In fact, a vehicle which was mainly responsible to cause this accident was supposed to be involved and same has been done by the injured and it cannot be said that this case is bad for mis-joinder or non-joinder of necessary parties. Besides it, no other defense has been taken by the respondents. As such, petitioners have proved that this accident was result of rash and negligent driving of the offending vehicle and Issue no. 1 in all petitions is decided in favour of petitioners and against the respondents.
14. Now the findings of the court on the Issue No. 2 in all the petitions have to be considered as under:
MAC NO. 354/16 (Old No. 139/12) ISSUE No. 2 in MAC No. 354 /16 titled Smt. Lata Sharma Vs. Pappu & ors. qua death of deceased Avantika Sharma @ Varsha: Since Issue No. 1 has been decided in favor of the petitioners that this MAC No.354/16 Lata Sharma & Ors Vs. Pappu & Ors.
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accident was caused by rash and negligent driving of the offending vehicle, accordingly it is to be decided as to what compensation is to be paid and by whom.
15. To determine the compensation in a fatal case, Petitioners are required to prove the age and income of the deceased as well as number of dependents to make necessary deductions towards the personal expenses of the deceased. The age of deceased is necessary to apply the multiplier. Petitioners have disclosed the age of the deceased Avantika @ Varsha as 28 years at the time of accident in petition, but the testimony of PW4 has proved that age of deceased was 25 years as per PM report, however petitioners have not proved any document to prove the age of deceased, accordingly the age of deceased is taken 28 years as per their admission in petition. As such, age of deceased stands proved as 28 years at the time of accident.
16. After ascertaining the age of the deceased, an appropriate multiplier has to be determined. The judgment of case titled Sarla Verma v. DTC, (2009) 6 SCC 121 is relevant to consider this multiplayer. Para 21 of the judgment has laid down the multiplier as per age as under:
MULTIPLIER AGE GROUP OF DECEASED
M-18 Age groups between 15 to 20 and 21 to 25 years)
M-17 Age groups between 26 to 30 years,
MAC No.354/16 Lata Sharma & Ors Vs. Pappu & Ors.
MAC No.353/16 Lata Sharma Vs. Pappu & Ors.
MAC No.352/16 Ekta Sharma Vs. Pappu & Ors.
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M-16 Age groups between 31 to 35 years,
M-15 Age groups between 36 to 40 years,
M-14 Age groups between 41 to 45 years,
M-13 Age groups between 46 to 50 years,
M-11 Age groups between 51 to 55 years,
M-9 Age groups between 56 to 60 years,
M-7 Age groups between 61 to 65 years
M-5 Age groups between 66 to 70 years.
In view of the above said judgment, a multiplier of 17 has to be made applicable against the age of 28 years of the deceased to determine this compensation. It is not disputed proposition of law that the multiplier as per the age of deceased or claimant whichever is higher is to be made applicable, and in this case, petitioners are the major sisters and one minor brother of the deceased as their parents have already expired. Petitioner no. 4 Anuj Sharma is minor and may be considered as dependent upon the deceased, if the other sisters of the deceased were not considered dependent being major. The age of deceased is on higher side in compassion to minor dependent, accordingly the age of deceased is considered to decide the multiplier to calculate the compensation. The age of the deceased was 28 years and appropriate multiplier against this age is 17 which is to be adopted.
17. After deciding the age and multiplier, the income of the deceased has to be determined. The deceased was stated to be doing a work of MAC No.354/16 Lata Sharma & Ors Vs. Pappu & Ors.
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taking tuitions and was earning Rs. 10,000/- pm, but no document to this effect has been proved on record. Ld. Counsel for Insurance Company has argued that the petitioners have failed to prove that the deceased was earning Rs. 10,000/- pm and this fact remained unproved. On the other hand, this argument has been opposed by the petitioners. Admittedly, PW2 Lata Sharma has failed to prove any document to prove the earning of the deceased, due to it could not be proved that the deceased was taking tuitions or was earning Rs.10,000/- pm; however, deceased was a young and healthy lady aged about 28 years at the time of accident and must be earning something to survive. Deceased was resident of UP and must be earning at least as per minimum wages prevalent in UP on the day of accident on 04.11.2011. Though the petitioners have shown their address at Delhi by the basis of rent agreement, yet it was executed on 2nd May, 2012 and was much later from the death of deceased and deceased shall be considered the permanent resident of UP. The minimum wages prevalent in UP on the day of accident was Rs. 4303.45 (rounded off Rs. 4304/- pm). As such, the monthly income of the deceased was Rs. 4304/- pm and it comes to annually as Rs.51,648/- per annum.
18. After choosing the age, multiplier and income of the deceased, necessary deductions have to be made out of the income of the deceased towards personal expenses of deceased. This claim has been filed by the claimants but only one claimant was financially MAC No.354/16 Lata Sharma & Ors Vs. Pappu & Ors.
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dependent upon the deceased being minor brother. The Hon'ble Supreme Court of India in case titled Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65, in Para 30, has laid down the necessary deductions towards personal living and expenses of deceased as under:
Number of dependents Deductions out of earning of the deceased.
Half / ½ Where dependent is 1
1/3rd Where the number of dependent family members is
2 to 3
1/4th Where the number of dependent family members is
4 to 6,
1/5th Where the number of dependent family members
exceeds 6 (six).
19. In view of the above said judgment, the Petitioner Nos. 1 to 3 are the major sisters of the deceased due to they cannot be considered as dependents of the deceased. However, Petitioner No. 4 is the minor brother of deceased and was financially dependent upon her as his parents had already expired and deceased was his eldest sister.
Though Ld. Counsel for the Insurance Company has argued that the brother and sisters are not be considered as dependents and this case is to be decided as per the minimum compensation u/s 140 of M.V. Act, yet the arguments of the Ld. Counsel for Insurance Company has no substance. It is not disputed that the parents of the minor had already expired and deceased being eldest sister of the minor claimant was supposed to maintain him and, claimant shall be considered as dependents upon the deceased. In fact, the dependent of the MAC No.354/16 Lata Sharma & Ors Vs. Pappu & Ors.
MAC No.353/16 Lata Sharma Vs. Pappu & Ors. MAC No.352/16 Ekta Sharma Vs. Pappu & Ors. MAC No.351/16 Ramji Vs. Pappu & Ors. 20/41
deceased was only 1 i.e. minor brother. Another argument of Ld. Counsel for Insurance Company also cannot be considered that this case has to be decided without dependency and fixed claim has to be paid. Petitioner No. 4 was the dependent upon the deceased and rules of dependency have to be made applicable to decide the case. As per rules of dependency, dependent was only 1, due to 1/2 earnings of the deceased has to be considered towards deductions out of her yearly earnings. As such, 1/2 amount out of annual income of Rs.51,648/- i.e. Rs. 25,824/- p.a. has to be reduced towards personal expenses out of her annual earnings and actual loss of dependency of Petitioners comes to Rs. 25,824/- per annum.
20. Besides it, a future income of the deceased is also to be considered in view of the latest judgment of the Hon'ble Apex Court titled National Insurance Company Limited vs. Praney Sethi & Ors , SLP (Civil) No. 25590 of 2014 decided on 31.10.2017 in which it is observed 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 MAC No.354/16 Lata Sharma & Ors Vs. Pappu & Ors.
MAC No.353/16 Lata Sharma Vs. Pappu & Ors. MAC No.352/16 Ekta Sharma Vs. Pappu & Ors. MAC No.351/16 Ramji Vs. Pappu & Ors. 21/41
was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.
(viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years.
21. In fact, in view of the above said judgments 40% income of the deceased has to be considered towards future earnings as the age of deceased was between 26-30 years. As such, the compensation of the petitioners has to be adjudicated on account of Loss of dependency/ contribution to the family, Loss of Estate, Funeral Charges and Future Damages.
22. I have already observed that the deceased was earning Rs. 25824/- per annum. Thereafter, this annual income has to be multiplied by multiplier of 17 as per Sarla Verma v. DTC (supra). Rs. 25824 x 17= Rs. 4,39,008/-. Thereafter, 40% income towards future income of the deceased has to be added in terms of National Insurance Co. v. Pranay Shetty (Supra) i.e. 1,75,603/- has to be added to above said amount. Rs. 4,39,008 + 1,75,603 = 6,14,611/-. Besides the above said damages / compensation, the other compensation under the unconventional heads i.e. Loss of estate and Funeral expenses also to be awarded in terms of Pranay Shetty judgment. Under all three heads, a consolidated amount of Rs. 30,000/- has to be awarded.
MAC No.354/16 Lata Sharma & Ors Vs. Pappu & Ors.
MAC No.353/16 Lata Sharma Vs. Pappu & Ors. MAC No.352/16 Ekta Sharma Vs. Pappu & Ors. MAC No.351/16 Ramji Vs. Pappu & Ors. 22/41
23. Medical Expenses: Petitioners have proved medical bills Ex.PW1/3 regarding the treatment of deceased prior to her death. Medical bills are of Rs. 3475/- alongwith a bill of ambulance for Rs.1600/-, but it is not clear from entire evidence as to when deceased was shifted to Meerut by ambulance. In the absence of any such material on record, deceased is not entitled for reimbursement of this ambulance bill, hence rejected. However, she is entitled for reimbursement of Rs. 3475/-.
24. As such, petitioners are entitled for the compensation as under:
1. Loss of dependency / Contribution Rs. 6,14,611/-
to family:
2. Loss of Estate: Rs. 15,000/-
3. Medical Expenses: Rs. 3475/-
4. Funeral Charges Rs. 15,000/-
Total = Rs. 6,48,086/-
(Rs.6,50,000/-rounded off)
25. Keeping in view of the facts and circumstances, this petition is allowed. Petitioner is entitled for compensation of Rs. 6,50.000/- from the Respondent No. 3 i.e. HDFC ERGO General Insurance Co. Ltd with interest @ 9% p.a. from the date of filing of the petition till its realization. The interim compensation, if any, shall be adjusted against MAC No.354/16 Lata Sharma & Ors Vs. Pappu & Ors.
MAC No.353/16 Lata Sharma Vs. Pappu & Ors. MAC No.352/16 Ekta Sharma Vs. Pappu & Ors. MAC No.351/16 Ramji Vs. Pappu & Ors. 23/41
this award amount along with the waiver of interest, if any as directed by the court during the pendency of this case. Respondent No. 3 is directed to give notice regarding deposit of the said amount to the petitioner and his counsel. As such, Petitioners have also successfully discharged the onus to prove the issue No. 2 and are entitled for the claim amount as above. The following award is passed as under:
AWARD This petition is allowed. Respondents No. 3 i.e. HDFC ERGO General Insurance Co. Ltd is directed to pay a compensation of Rs.6,50,000/- with interest @ 9% p.a. from the date of filing of this petition till its realization to the Petitioners and to deposit the award amount within one month from the date of this award. However, this award amount shall be subjected to adjustment of the interim award, if any and also the waiver of interest, if any as directed by this court during the pendency of this claim. Copy of Form V duly filled shall be treated as part of this award.
MAC No- 363/16 (Old No. 138/12)
26. ISSUE No. 2 in MAC No. 363/16 qua injury of Lata Sharma -
The onus to prove this issue was fixed upon the petitioner. Since the petitioner Lata Sharma has proved the Issue No. 1, accordingly she is entitled for compensation, but it is to be determined as to what compensation is to be awarded to the injured and by whom.
MAC No.354/16 Lata Sharma & Ors Vs. Pappu & Ors.
MAC No.353/16 Lata Sharma Vs. Pappu & Ors. MAC No.352/16 Ekta Sharma Vs. Pappu & Ors. MAC No.351/16 Ramji Vs. Pappu & Ors. 24/41
27. This case is pertaining to the injury sustained by the petitioner and scope of the compensation in injury cases has been discussed by the Hon'ble Supreme Court of India in case titled Mr. R.D. Hattangadi v. M/S Pest Control (India) Pvt. Ltd., 1995 AIR 755 in the following words as under:
Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which is capable of being calculated in terms of money-, whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may, include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit upto the date of trial; (iii) other material loss. So far non- pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain suffering, already suffered or likely to be suffered in future; (ii damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e. on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life.
In view of the above said law, the damages of the petitioner have to be decided under the following heads as under:
28. Reimbursement of medical expenses: Injured Lata Sharma has proved her medical bills Ex.PW2/A for Rs.225/- which are pertaining to Saraswati Institute of Medical Sciences where she was hospitalized soon after this accident, however another bill of Rs.4034/- has been issued from Shivaji Medicals, Lucknow but it is not proved as to whether she ever treated there or was residing to purchase the medicines there and that too without prescription, accordingly she is MAC No.354/16 Lata Sharma & Ors Vs. Pappu & Ors.
MAC No.353/16 Lata Sharma Vs. Pappu & Ors. MAC No.352/16 Ekta Sharma Vs. Pappu & Ors. MAC No.351/16 Ramji Vs. Pappu & Ors. 25/41
not entitled for reimbursement of medical bill of Rs.4034/-, but entitled for amount of Rs.225/- only.
29. Pain and Suffering: Petitioner has proved that she suffered injuries during this accident but it is not clear as to what type of injury she suffered in the absence of MLC, accordingly it may be considered that she suffered only simple injuries and is entitled for some compensation for pain and suffering under this head.
30. Conveyance & Special diet: Petitioner has not filed any bill of conveyance and special diet to prove that she spent any amount under these heads. She suffered only simple injuries, due to she is not entitled for any compensation under these heads.
31. Attendant charges: Petitioner has not proved that she received any assistance of any attendant or family members during her treatment and rather his bed confinement is also not proved. In fact, she is not entitled for any compensation under this head.
32. Lose of Income during treatment period: Injured has suffered only simple injuries without MLC and also discharged on the same day from Saraswati Institute of Medical Sciences, accordingly there was no loss of income, due to she is not entitled for any compensation under this head.
33. Lose on account of permanent disability: Petitioner has not suffered any permanent disability due to she is not entitled for any MAC No.354/16 Lata Sharma & Ors Vs. Pappu & Ors.
MAC No.353/16 Lata Sharma Vs. Pappu & Ors. MAC No.352/16 Ekta Sharma Vs. Pappu & Ors. MAC No.351/16 Ramji Vs. Pappu & Ors. 26/41 compensation under this head
34. Damages for inconvenience, hardship, discomfort, frustration and mental stress in life: Petitioner has not proved that she has suffered grievous or serious injuries but she must have suffered some loss of amenities and enjoyment in life on account of this accident. As such, injured is entitled for the compensation for mental shock and stress under these heads.
35. As such, petitioner Lata Sharma is entitled for the compensation as under:
1. Reimbursement of medical expenses: Rs. 225/-
2. Pain and Suffering: Rs.25,000/-
3. Attendant charges: NIL
4. Lose of Income during treatment period; NIL
5. Loss of earning capacity including future NIL due to this disability
6. Conveyance & special diet: NIL
7. Compensation for mental and physical Rs. 10,000/-
shock :
8. Loss of amenities in life: Rs. 5,000/-
9. Damages for inconvenience, hardship, Rs. 5,000/-
frustration and permanent disfigurement.
Total = Rs.45,225/-
(rounded off
Rs.46,000/-
MAC No.354/16 Lata Sharma & Ors Vs. Pappu & Ors.
MAC No.353/16 Lata Sharma Vs. Pappu & Ors.
MAC No.352/16 Ekta Sharma Vs. Pappu & Ors.
MAC No.351/16 Ramji Vs. Pappu & Ors. 27/41
36. Keeping in view of the facts and circumstances, this petition is allowed. Petitioner is entitled for compensation of Rs. 46,000/- from the Respondent No. 3 i.e. HDFC ERGO General Insurance Co. Ltd. with interest @ 9% p.a. from the date of filing of the petition till its realization. The interim compensation, if any, shall be adjusted against this award amount along with the waiver of interest, if any as directed by the court during the pendency of this case. Respondent No. 3 is directed to give notice regarding deposit of the said amount to the petitioner and his counsel. As such, Petitioner has also successfully discharged the onus to prove the issue No. 2 and is entitled for the claim amount as above. The following award is passed as under:
AWARD This petition is allowed. Respondents No. 3 i.e. HDFC ERGO General Insurance Co. Ltd is directed to pay a compensation of Rs.46,000/- with interest @ 9% p.a. from the date of filing of this petition till its realization to the Petitioners and to deposit the award amount within one month from the date of this award. However, this award amount shall be subjected to adjustment of the interim award, if any and also the waiver of interest, if any as directed by this court during the pendency of this claim. Copy of Form V duly filled shall be treated as part of this award.
MAC No.354/16 Lata Sharma & Ors Vs. Pappu & Ors.
MAC No.353/16 Lata Sharma Vs. Pappu & Ors.
MAC No.352/16 Ekta Sharma Vs. Pappu & Ors.
MAC No.351/16 Ramji Vs. Pappu & Ors. 28/41
MAC No- 352/16 (Old No. 140/12)
37. ISSUE No. 2 in MAC No. 352/16 qua injury of Ekta Sharma -
Injured Ekta Sharma is also entitled for compensation as she also suffered injuries during the accident as suffered by Lata Sharma. Her claim is considered under the following heads as under:
38. Reimbursement of medical expenses: Injured Ekta Sharma has proved her medical bills dated 04/12/11 for Rs.225/- which are pertaining to Saraswati Institute of Medical Sciences where she was hospitalized soon after this accident, however another bill of Rs.15708/- has been issued from Aparna Medicals, Lucknow, but it is not proved as to whether she ever treated there or was residing to purchase the medicines from that chemist and that too without prescription, accordingly she is not entitled for reimbursement of medical bill of Rs.15708/-, but is entitled for an amount of Rs.225/-
only.
39. Pain and Suffering: Petitioner has proved that she suffered injuries during this accident but it is not clear as to what type of injury she suffered in the absence of MLC, accordingly it may be considered that she suffered only simple injuries and is entitled for some compensation for pain and suffering under this head.
MAC No.354/16 Lata Sharma & Ors Vs. Pappu & Ors.
MAC No.353/16 Lata Sharma Vs. Pappu & Ors. MAC No.352/16 Ekta Sharma Vs. Pappu & Ors. MAC No.351/16 Ramji Vs. Pappu & Ors. 29/41
40. Conveyance & Special diet: Petitioner has not filed any bill of conveyance and special diet to prove that she spent any amount under these heads. She suffered only simple injuries, due to she is not entitled for any compensation under these heads.
41. Attendant charges: Petitioner has not proved that she received any assistance of any attendant or family members during her treatment and rather his bed confinement is also not proved. In fact, she is not entitled for any compensation under this head.
42. Lose of Income during treatment period: Injured has suffered only simple injuries without MLC and also discharged on the same day from Saraswati Institute of Medical Sciences, accordingly there was no loss of income, due to she is not entitled for any compensation under this head.
43. Lose on account of permanent disability: Petitioner has not suffered any permanent disability due to she is not entitled for any compensation under this head
44. Damages for inconvenience, hardship, discomfort, frustration and mental stress in life: Petitioner has not proved that she has suffered grievous or serious injuries but she must have suffered some loss of amenities and enjoyment in life on account of this accident. As such, injured is entitled for the compensation for mental shock and stress under these heads.
MAC No.354/16 Lata Sharma & Ors Vs. Pappu & Ors.
MAC No.353/16 Lata Sharma Vs. Pappu & Ors. MAC No.352/16 Ekta Sharma Vs. Pappu & Ors. MAC No.351/16 Ramji Vs. Pappu & Ors. 30/41
45. As such, petitioner Ekta Sharma is entitled for the compensation as under:
1. Reimbursement of medical expenses: Rs.225/-
2. Pain and Suffering: Rs.25,000/-
3. Attendant charges: NIL
4. Lose of Income during treatment period; NIL
5. Loss of earning capacity including future NIL due to this disability
6. Conveyance & special diet: NIL
7. Compensation for mental and physical Rs. 10000/-
shock :
8. Loss of amenities in life: Rs. 5,000/-
9. Damages for inconvenience, hardship, Rs. 5,000/-
frustration and permanent disfigurement.
Total = Rs.45,225/-
(rounded off
Rs.46,000/-
46. Keeping in view of the facts and circumstances, this petition is allowed. Petitioner is entitled for compensation of Rs. 46,000/- from the Respondent No. 3 i.e. HDFC ERGO General Insurance Co. Ltd with interest @ 9% p.a. from the date of filing of the petition till its realization. The interim compensation, if any, shall be adjusted against this award amount along with the waiver of interest, if any as directed by the court during the pendency of this case. Respondent No. 3 is MAC No.354/16 Lata Sharma & Ors Vs. Pappu & Ors.
MAC No.353/16 Lata Sharma Vs. Pappu & Ors. MAC No.352/16 Ekta Sharma Vs. Pappu & Ors. MAC No.351/16 Ramji Vs. Pappu & Ors. 31/41
directed to give notice regarding deposit of the said amount to the petitioner and his counsel. As such, Petitioner has also successfully discharged the onus to prove the issue No. 2 and is entitled for the claim amount as above. The following award is passed as under:
AWARD This petition is allowed. Respondents No. 3 i.e. HDFC ERGO General Insurance Co. Ltd is directed to pay a compensation of Rs.46,000/- with interest @ 9% p.a. from the date of filing of this petition till its realization to the Petitioners and to deposit the award amount within one month from the date of this award. However, this award amount shall be subjected to adjustment of the interim award, if any and also the waiver of interest, if any as directed by this court during the pendency of this claim. Copy of Form V duly filled shall be treated as part of this award.
MAC No- 351/16 (Old No. 141/12)
47. ISSUE No. 2 in MAC No. 352/16 qua injury of Ramji - Injured Ramji is also entitled for compensation as he also suffered injuries during the accident as suffered by other injured. His claim is considered under the following heads as under:
MAC No.354/16 Lata Sharma & Ors Vs. Pappu & Ors.
MAC No.353/16 Lata Sharma Vs. Pappu & Ors. MAC No.352/16 Ekta Sharma Vs. Pappu & Ors. MAC No.351/16 Ramji Vs. Pappu & Ors. 32/41
48. Reimbursement of medical expenses: Injured Ramji has proved his medical bills Ex.PW3/3 which are pertaining to Saraswati Institute of Medical Sciences and also other hospitals. As per his medical bills, he remained under treatment between the period from 04.12.2011 to 11.4.2012, but there is no medical prescription to support these medical bills. However, he is hailing from village background and may be not aware to maintain a record, due to he is entitled for reimbursement of these medical bills. However, he has also relied upon the ambulance charges but these are similar to the other injured without any record of treatment there due to he is not entitled for reimbursement of this bill. His address is also pertaining to Delhi due to his medical bills issued from chemist at Delhi are allowed. As such, injured is entitled for reimbursement of medical bills under this head for Rs. 22,233/-.
49. Pain and Suffering: Petitioner has proved that he suffered injuries during this accident but it is not clear as to what type of injuries was suffered by him as there is no MLC on record to prove the nature of injuries, due to it may be presumed that he suffered only simple injuries and must have suffered some pain and sufferings and is entitled for compensation under this head.
50. Conveyance & Special diet: Petitioner has not filed any bill of conveyance and special diet to prove that he spent any amount under these heads. He suffered simple injuries but duration of his treatment is long between 04.12.2011 to 11.4.2012, due he must have spent MAC No.354/16 Lata Sharma & Ors Vs. Pappu & Ors.
MAC No.353/16 Lata Sharma Vs. Pappu & Ors. MAC No.352/16 Ekta Sharma Vs. Pappu & Ors. MAC No.351/16 Ramji Vs. Pappu & Ors. 33/41
some amount on his conveyance and special diet due to he is entitled for a consolidated compensation of Rs.10,000/- under these heads.
51. Attendant charges: Petitioner has not proved that he received any assistance of any attendant or family members during his treatment and even he suffered simple injuries, due to he is not entitled for any compensation under this head.
52. Lose of Income during treatment period: Injured suffered only simple injuries without MLC and was discharged on the same day form Saraswati Institute of Medical Sciences, but he remained under treatment during on 04.12.2011 to 11.4.2012, however, he was primary teacher with Basic Primary School and must be on leave, but no leave record has been proved on record. As such, injured was in job and without proving any leave record, there was no loss of income and is not entitled for any compensation under this head.
53. Lose on account of permanent disability: Petitioner has not suffered any permanent disability due to he is not entitled for any compensation under this head
54. Damages for inconvenience, hardship, discomfort, frustration and mental stress in life: Petitioner has not proved that he has has suffered any serious injuries but he must have suffered some amount of loss of amenities and enjoyment in life on account of this accident, due to he is entitled for some compensation for his mental shock and MAC No.354/16 Lata Sharma & Ors Vs. Pappu & Ors.
MAC No.353/16 Lata Sharma Vs. Pappu & Ors. MAC No.352/16 Ekta Sharma Vs. Pappu & Ors. MAC No.351/16 Ramji Vs. Pappu & Ors. 34/41 stress on account of this accident.
55. As such, petitioner Ramji is entitled for the compensation as under:
1. Reimbursement of medical expenses: Rs. 22,233/-
2. Pain and Suffering: Rs.40,000/-
3. Attendant charges: NIL
4. Lose of Income during treatment period; NIL
5. Loss of earning capacity including future NIL due to this disability
6. Conveyance & special diet: Rs.10000/-
7. Compensation for mental and physical Rs.15000/-
shock :
8. Loss of amenities in life: Rs. 10,000/-
9. Damages for inconvenience, hardship, Rs. 5,000/-
frustration and permanent disfigurement.
Total = Rs.1,02,233/-
(rounded off
Rs.1,03,000/-
56. Keeping in view of the facts and circumstances, this petition is allowed. Petitioner is entitled for compensation of Rs. 1,03,000/- from the Respondent No. 3 i.e. HDFC ERGO General Insurance Co. Ltd with interest @ 9% p.a. from the date of filing of the petition till its realization. The interim compensation, if any, shall be adjusted against this award amount along with the waiver of interest, if any as directed MAC No.354/16 Lata Sharma & Ors Vs. Pappu & Ors.
MAC No.353/16 Lata Sharma Vs. Pappu & Ors. MAC No.352/16 Ekta Sharma Vs. Pappu & Ors. MAC No.351/16 Ramji Vs. Pappu & Ors. 35/41
by the court during the pendency of this case. Respondent No. 3 is directed to give notice regarding deposit of the said amount to the petitioner and his counsel. As such, Petitioner has also successfully discharged the onus to prove the issue No. 2 and is entitled for the claim amount as above. The following award is passed as under:
AWARD This petition is allowed. Respondents No. 3 i.e. HDFC ERGO General Insurance Co. Ltd is directed to pay a compensation of Rs.1,03,000/- with interest @ 9% p.a. from the date of filing of this petition till its realization to the Petitioners and to deposit the award amount within one month from the date of this award. However, this award amount shall be subjected to adjustment of the interim award, if any and also the waiver of interest, if any as directed by this court during the pendency of this claim.
57. Liability: Petitioners have proved that the offending vehicle was insured with the insurance company i.e. HDFC ERGO General Insurance Co. Ltd. and insurance policy is already on record. Respondent No. 3 has admitted that the offending vehicle was insured with the Respondent No. 3 on the day of accident, but it is argued that it was a case of violation of insurance policy as the offending vehicle was not carrying a permit and Respondent No. 3 has served a legal notice U/O 12 rule 8 CPC upon the Respondent No 2 to produce permit of the vehicle but he has failed to produce the same despite MAC No.354/16 Lata Sharma & Ors Vs. Pappu & Ors.
MAC No.353/16 Lata Sharma Vs. Pappu & Ors. MAC No.352/16 Ekta Sharma Vs. Pappu & Ors. MAC No.351/16 Ramji Vs. Pappu & Ors. 36/41
service of legal notice and insurance company is not liable to pay this compensation. It is further argued that even this lapse was noticed by the MACT Court at Ghaziabad at the time of adjudicating earlier judgment Mark E as per which it was observed that the offending vehicle was not carrying the permit and recovery rights were granted to the company. It is argued that in this case also recovery rights are ought to be granted as owner has failed to produce the permit despite service of legal notice. However, the argument of Ld. Counsel for Insurance Company has no force. In this case, Respondent no. 3 has failed to prove any violation of Insurance policy as service of legal notice u/o 12 rule 8 CPC upon the respondent no 2 could not be proved. No doubt the insurance company has relied upon the legal notice which was allegedly served upon the owner of the offending vehicle but no postal receipt of dispatch of notice or AD card of service of notice upon the respondent no. 2 has proved on record. In fact, in the absence of any proof of service or record of dispatch, it could not be proved merely by the photocopy of judgment of MACT Court that too without certified copy that it was a case of violation of terms of insurance policy. Insurance company was supposed to prove the legal notice along with service of notice upon the respondents to claim the recovery rights especially when the respondents are ex-parte before this court, but the testimony of R3W1 Depender Singh has failed to prove the violation with the help of copy of legal notice Mark A. Even no witness has examined to prove the dispatch of this legal notice to correct address and such notice is of no use. As such, it could not be MAC No.354/16 Lata Sharma & Ors Vs. Pappu & Ors.
MAC No.353/16 Lata Sharma Vs. Pappu & Ors. MAC No.352/16 Ekta Sharma Vs. Pappu & Ors. MAC No.351/16 Ramji Vs. Pappu & Ors. 37/41
proved that offending vehicle was being driven without permit. That judgment must have been decided on the basis of evidence therein, but it cannot be basis to allow similar relief as grated in that judgment without any similar evidence As such, respondent has failed to prove any violation of the insurance policy and is liable to pay entire compensation without any right of recovery.
58. Apportionment of Award amount in MAC No 354/16: The award amount has to be distributed amongst the claimants. Petitioners No. 1 to 3 are major sisters of the deceased whereas the petitioner no 4 is the minor brother who has been considered as dependent upon the deceased. As such, petitioners no 1-3 shall be entitled for 20% (each) of the entire compensation award i.e. Rs. 1,30,000/- (each). Petitioner No. 4 shall be entitled for 40% share of the award amount i.e. Rs. 2,60,000/-. The share amount shall be with corresponding interest of the award amount.
59. Disbursal of the Award amount: Now the disbursement of award amount has to be considered. The procedure of disbursement of the award amount has been provided in Clause-28 of Modified Claims Tribunal Agreed Procedure formulated by the Hon'ble High Court of Delhi in Rajesh Tyagi v. Jaibir Singh, I (2005) ACC 838 (Del.). In view of the procedure, the disbursement shall be as under:
59.1. Petitioner Nos. 1 to 3 and shall be entitled for 50% (each) of the award amount with corresponding interest instantly to be credited MAC No.354/16 Lata Sharma & Ors Vs. Pappu & Ors.
MAC No.353/16 Lata Sharma Vs. Pappu & Ors. MAC No.352/16 Ekta Sharma Vs. Pappu & Ors. MAC No.351/16 Ramji Vs. Pappu & Ors. 38/41
in their saving bank account nearby to their residences. Remaining 50% amount (each) with corresponding interest shall be fixed by the way of FDRs for a period of 2 years with accumulative interest 59.2. The award amount of the petitioner No. 4 Anuj Sharma shall be filed by the way of FDR till attainment of majority by him, but interest on quarterly basis shall be released to him so that he may utilize the same for his welfare.
59.3. FDRs amount shall be paid on maturity basis in the same account of the petitioner/s against which interest amount is/are being credited through ECS automatically.
59.4. The Manager, UCO Bank or of any other bank as desired by the claimant/s shall open the saving bank account of the claimant/s or transfer to his/her/their existing account/s, if any, nearby to his/her/their residence/s after taking relevant documents.
59.5. The withdrawal from the aforesaid bank account/s of the petitioners / claimant/s shall be after due verification by the bank and the bank shall issue photo identity card to the petitioner/s to facilitate the identity.
59.6. The original FDRs shall be retained by the bank in the safe custody. However, the statement containing FDR numbers, FDRs amount, date of maturity and maturity amount shall be furnished to the claimant/s.
MAC No.354/16 Lata Sharma & Ors Vs. Pappu & Ors.
MAC No.353/16 Lata Sharma Vs. Pappu & Ors. MAC No.352/16 Ekta Sharma Vs. Pappu & Ors. MAC No.351/16 Ramji Vs. Pappu & Ors. 39/41
59.7. No loan, advance or withdrawal / pre-mature discharge shall be allowed on the above-said FDRs without the permission of this Tribunal. The bank shall not open any joint account of the petitioner/s.
59.8. No cheque book or debit card shall be issued to the claimants/ petitioner/s without the permission of this Tribunal against the account in which amount is being credited. 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 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.
59.9. That the bank shall make an endorsement on the passbook of the claimant to this effect, that no cheque book and / or debit card have been issued and shall not be issued without the permission of the Court and claimant/s shall produce the passbook with the necessary endorsement before the court on the next date fixed for compliance.
59.10. The bank shall prepare FDRs in its own name on the receipt of the award amount from the Respondent / Insurance Company till the date petitioner/s approach for the release of the amount and thereafter amount along with interest shall be released to the petitioner/s per award of this Tribunal.
59.11. On the request of petitioner/s, bank shall transfer the saving account to any other bank of UCO bank or any other bank according to MAC No.354/16 Lata Sharma & Ors Vs. Pappu & Ors.
MAC No.353/16 Lata Sharma Vs. Pappu & Ors. MAC No.352/16 Ekta Sharma Vs. Pappu & Ors. MAC No.351/16 Ramji Vs. Pappu & Ors. 40/41
the convenience of the petitioner/s. The claimants can operate the saving bank account from nearest branch of UCO Bank and on the request of the claimant/s, the bank shall provide said facility.
59.12. The petitioners shall furnish all the relevant documents for opening of the saving bank account and FDR to Nodal Officer, UCO Bank, KKD, Delhi.
59.13. Petitioner / claimant (s) shall file a compliance report on next date of hearing about opening of saving bank account with nationalized bank nearby to their/his/her residence and to get endorsed from bank that no cheque-book, debit card or any other facility like ECS / NFTT etc. has been provided against this bank account.
60. A copy of this judgment be given free of cost to the parties concerned and also be sent to the court of Ld. MM concerned as well as DLSA, Shahdara. Copy of Form V duly filled shall be treated as part of this award. File be consigned to record room and a separated file for compliance be maintained for 10.07.2018. Digitally signed by DEVENDER DEVENDER KUMAR KUMAR Date:
2018.06.07 Announced in open court (DEVENDER KUMAR) 17:43:37 +0530 On 07.06.2018 PO-MACT/SHAHDARA KARKARDOOMA COURTS, DELHI MAC No.354/16 Lata Sharma & Ors Vs. Pappu & Ors.
MAC No.353/16 Lata Sharma Vs. Pappu & Ors. MAC No.352/16 Ekta Sharma Vs. Pappu & Ors. MAC No.351/16 Ramji Vs. Pappu & Ors. 41/41