Delhi District Court
Asha And Ors vs Mukesh And Ors on 14 September, 2023
IN THE COURT OF SH: JAGDISH KUMAR PO:MACT2 (SOUTH
WEST): DWARKA: NEW DELHI
MACT No. 1335/2017
FIR No. 0446
PS Rohtak Sadar, Haryana
1. Smt Asha
W/O late Sh Jai Bhagwan
2. Preeti
D/O late Sh Jai Bhagwan
3. Sagar
S/O late Sh Jai Bhagwan
4. Kirti
D/O Shri Brij Singh
5. Ishika
D/O Shri Brij Singh
6. Bhateri
W/O Late Sh Hukam Chand
All R/O H. No.583, Village & Post Mitraon,
Najafgarh,North West Delhi110043
....Petitioners
VERSUS
1. Mukesh
S/O Sh Rampal
R/O Vill Dhakla, Distt Jhajjar,
Haryana.
2. Sharmila
W/O Ajay,
Village Pinana, Sonipat,
Haryana.
3. National Insurance Co Ltd
Off124, Level4 Jeewan Bharti Building Tower2
Janpath Road, Connaught Place,
MACT no.1335/2016 Asha & Ors. Vs. Mukesh & ors. Page 1 of 16
Delhi110034
....Respondents
DATE OF INSTITUTION : 20.11.2017
ARGUMENTS HEARD ON : 14.09.2023
DATE OF AWARD : 14.09.2023
FORM - V
COMPLIANCE OF THE PROVISIONS OF THE MODIFIED CLAIMS TRIBUNAL AGREED PROCEXDURE TO BE MENTIONED IN THE AWARD
1. Date of the accident 19.09.2017
2. Date of intimation of the accident by the investigating No intimation by officer to the Claims Tribunal (Clause 2) The present police case pertains to outstation road accident.
3. Date of intimation of the accident by the investigating do officer to the insurance company. (Clause 2)
4. Date of filing of Report under section 173 Cr.P.C. Not known before the Metropolitan Magistrate (Clause 10)
5. Date of filing of Detailed Accident Information Report No DAR filed (DAR) by the investigating Officer before Claims Tribunal (Clause 10)
6. Date of Service of DAR on the Insurance Company N/A (Clause 11)
7. Date of service of DAR on the claimant(s). (Clause 11) N/A
8. Whether DAR was complete in all respects? (Clause N/A
16)
9. If not, whether deficiencies in the DAR removed later N/A on?
10. Whether the police has verified the documents filed N/A with DAR? (Clause 4)
11. Whether there was any delay or deficiency on the part N/A of the Investigating Officer? If so, whether any action/direction warranted?
MACT no.1335/2016 Asha & Ors. Vs. Mukesh & ors. Page 2 of 1612. Date of appointment of the Designated Officer by the Not known insurance Company. (Clause20)
13. Name, address and contact number of the Designated do Officer of the Insurance Company. (Clause 20)
14. Whether the designated Officer of the Insurance No Company submitted his report within 30 days of the DAR? (Clause 20)
15. Whether the insurance company admitted the liability? No If so, whether the Designated Officer of the insurance company fairly computed the compensation in accordance with law. (Clause 23)
16. Whether there was any delay or deficiency on the part No of the Designated Officer of the Insurance Company? If so, whether any action/direction warranted?
17. Date of response of the claimant (s) to the offer of the N/A Insurance Company. (Clause 24)
18. Date of the Award 14.09.2023
19. Whether the award was passed with the consent of the No parties? (Clause 22)
20. Whether the claimant(s) were directed to open saving Yes bank account(s) near their place of residence? (Clause
18)
21. Date of order by which claimant(s) were directed to 18.04.2018 open saving bank account (s) near his place of residence and produce PAN Card and Aadhar Card and the direction to the bank not issue any cheque book/debit card to the claimant(s) and make an endorsement to this effect on the passbook(s). (Clause
18)
22. Date on which the claimant (s) produced the passbook 14.09.2023 of their saving bank account near the place of their residence along with the endorsement, PAN Card and Aadhar Card? (Clause 18)
23. Permanent Residential Address of the Claimant(s) All R/O H. No.B (Clause 27) 3/408 Tara Nagar MACT no.1335/2016 Asha & Ors. Vs. Mukesh & ors. Page 3 of 16 Kakrolla, New Delhi
24. Details of saving bank account(s) of the claimant(s) and Petitioner No.1 the address of the bank with IFSC Code (Clause 27) SB A/C No. 42204413867 IFSC Code: SBIN 0011566 at SBI District Court Complex Dwarka, Delhi.
Petitioner No.2
SB A/C No.
42204612024 IFSC
Code: SBIN 0011566
at SBI District Court
Complex Dwarka,
Delhi.
Petitioner No.3
SB A/C No.
42204608595 IFSC
Code: SBIN 0011566
at SBI District Court
Complex Dwarka,
Delhi.
Petitioner No.4
SB A/C No.
42259627536 IFSC
Code: SBIN 0011566
at SBI District Court
Complex Dwarka,
Delhi.
Petitioner No.5
SB A/C No.
42262783716 IFSC
Code: SBIN 0011566
at SBI District Court
Complex Dwarka,
Delhi.
Petitioner No.1
SB A/C No.
MACT no.1335/2016 Asha & Ors. Vs. Mukesh & ors. Page 4 of 16
42204611279 IFSC
Code: SBIN 0011566
at SBI District Court
Complex Dwarka,
Delhi.
25. Whether the claimant(s) saving bank account(s) is near Yes
his/her place of residence? (Clause 27)
26. Whether the claimant(s) were examined at the time of Yes passing of the award.
27. Account number, MICR number IFSC Code, name and State Bank of India, branch of the bank of the Claims Tribunal in which the Branch Sector10, award amount is to be deposited/transferred Dwarka Courts, New Delhi Account No. 37665510911 MICR No. 110002483 FORM - IV A SUMMARY OF COMPUTATION OF AWARD AMOUNT IN DEATH CASES TO BE INCORPORATED IN THE AWARD
1. Date of accident: 19.09.2017
2. Name of deceased: Jai Bhagwan
3. Age of the deceased:44 years
4. Occupation of the deceased: Service in Parle Biscuit Pvt Ltd.
5. Income of the deceased:28,687/ p.m. ( As claimed in the petition.
6. Name, age and relationship of legal representatives of deceased:
S.No. Name Age Relation (i) Smt Asha 37 yrs Wife (ii) Preeti 22 yrs Daughter (iii) Sagar 20 yrs Son (iv) Kirti 12 yrs Daughter (v) Ishika 06 yrs Daughter MACT no.1335/2016 Asha & Ors. Vs. Mukesh & ors. Page 5 of 16 (vi) Bhateri 75 yrs Mother Computation of Compensation S.No. Heads Awarded by the Claims Tribunal 7. Income of the deceased (A) Rs.10,165/ 8. AddFuture Prospects (B) Rs. (30%) 9. LessPersonal expenses of the deceased Rs. (1/5th as there are six (C) dependents) 10. Monthly loss of dependency 10,571.60/ (10,165/ +3049.50/ { (A+B) - C =D} 2642.90/) per month. 11. Annual loss of dependency (Dx12) Rs. 1,26,859.20/ 12. Multiplier (E) 14
13. Total loss of dependency (Dx12xE = F) Rs.17,76,000/ ( Round off)
14. Medical Expenses (G) Rs.85,699/
15. Compensation for loss of love and Nil affection (H)
16. Compensation for loss of consortium Rs.2,64,000/-
(I) ( Rs. 44,000/ to each of the petitioner )
17. Compensation for loss of estate (J) Rs.17,000/
18. Compensation towards funeral Rs.17,000/ expenses (K)
19. TOTAL COMPENSATION Rs.21,59,699/ (F+G+H+I+J+K =L)
20. RATE OF INTEREST AWARDED 7.5% per annum 21 Interest amount up to the date of As per calculation compliance (M)
22. Total amount including interest (L+M) As per calculation
23. Award amount released 10% MACT no.1335/2016 Asha & Ors. Vs. Mukesh & ors. Page 6 of 16
24. Award amount kept in FDRs 90% equal yearly FDR's
25. Mode of disbursement of the award NEFT amount to the claimant (s) (Clause 29)
26. Next date for compliance of the award. 01.10.2023 (Clause 31) AWARD
1. As per the facts of present case, on 19.09.2017 deceased Jai Bhagwan S/O Late Hukam Chand, was driving his motor cycle while his wife was traveling as pillion rider. They were going from village Mitraon Delhi to village Makdoli, Rohtak, Haryana. When they reached near Haryana Dhaba at outer bypass Rohtak, meanwhile a tractor bearing No. HR 10Z1413 came at a very fast speed, in rash and negligent manner from the wrong side of the road and hit the motorcycle of deceased. As a result of which, the deceased alongwith his wife fell down on the road and deceased Jai Bhagwan sustained grievous injuries. The deceased was removed to PGIMS, Rohtak, Haryana for treatment. Thereafter, he was referred to Sunflag Hospital, Rohtak but he died during the treatment on 21.09.2017. The present case pertains to the death of Sh Jai Bhagwan and claim application filed accordingly.
2. It is contended that said accident took place, due to use of offending vehicle by Mukesh in negligent manner who has been impleaded as respondent no. 1. The owner of offending vehicle, Sharmila , is impleaded as respondent no. 2. And as the said vehicle was insured with National Insurance Company Ltd., it is impleaded as respondent no. 3 in the present case. By the present case, the petitioners are claiming a sum of Rs. 80,00,000/ (Rupees Eighty Lacs Only) from MACT no.1335/2016 Asha & Ors. Vs. Mukesh & ors. Page 7 of 16 respondents as compensation.
3. The respondent No.1 and 2 have filed a joint reply/W.S to the petition thereby stating that it was the deceased who was driving his motor cycle in rash and negligent manner without following the traffic norms and in zig zag manner. It is stated that in the process to reach earlier to his destination the deceased could not control over his motor cycle and sustained injuries due to his own rash and negligent driving.
4. The Respondent no.3, insurance company has admitted the fact that offending vehicle was insured with the respondent No.3 at the relevant time, in the name of respondent No.2. It is stated that at the time of alleged accident the deceased was in contravention of traffic rules and in utter disobedience of traffic rules. Hence the petitioner cannot take advantage of their own carelessness and negligence.
5. After completion of the pleadings, following issues were framed on 02.11.2018 :
(i) Whether Jai Bhagwan sustained fatal injuries in a motor vehicle accident dated 19.09.2017 due to rash and negligent driving of vehicle No. HR10Z1413 being driven by respondent No.1 Mukesh, owned by respondent No.2 Sharmila and insured by respondent no.3 National Insurance Company Ltd ? OPP.
(ii) Whether the petitioners are entitled to claim compensation, if so, what amount and from whom? OPP.
(iii) Relief.
6. In order to prove their claim, petitioners have examined petitioner No.1 Asha, wife of deceased who is also an eye witness. Sh Sajjan Singh, Assistant Manager HR Parle Biscuits Pvt Ltd . The respondent No.3 also examined R3W1 MACT no.1335/2016 Asha & Ors. Vs. Mukesh & ors. Page 8 of 16 Sh Raj Kumar in its defence.
7. I have heard ld. counsel appearing on behalf of petitioners and insurance company. None appeared on behalf of R.1 and R.2 to argue the case. I proceeded to decide the case on merits. I have given my thoughtful consideration to the submission made by them and I also perused the record. My issuewise findings are as under: ISSUE NO. 1: (i) Whether Jai Bhagwan sustained fatal injuries in a motor vehicle accident dated 19.09.2017 due to rash and negligent driving of vehicle No. HR10Z1413 being driven by respondent No.1 Mukesh, owned by respondent No.2 Sharmila and insured by respondent no.3 National Insurance Company Ltd ? OPP.
8. The onus to prove this issue was upon the petitioners. To prove this fact petitioners have examined PW1 Smt Asha , who is stated to be an eye witness. She has deposed on 19.09.2017 deceased Jai Bhagwan S/O Late Hukam Chand, was driving his motor cycle while she was traveling as pillion rider. She has deposed that when they were going from village Mitraon Delhi to village Makdoli, Rohtak, Haryana and reached near Haryana Dhaba at outer bypass Rohtak, Haryana. Meanwhile a tractor bearing No. HR 10Z1413 came at a very fast speed, in rash and negligent manner from the wrong side of the road and hit their motorcycle .She has deposed that due to impact she as well as her husband fell down on the road and her husband sustained grievous injuries. She has deposed that here husband was removed to PGIMS, Rohtak, Haryana for treatment. Thereafter he was referred to Sunflag Hospital, Rohtak, Haryana but he died during the treatment on 21.09.2017.
9. I have gone through the testimony of PW 1 ( who is eye witness) who has proved the fact of accident being occurred due to rash and negligent driving of MACT no.1335/2016 Asha & Ors. Vs. Mukesh & ors. Page 9 of 16 respondent No.1. Moreover the proof of negligence, while disposing of a claim under MACT, is not that strict as it is for the offence under Section 279/304A of IPC. The charge sheet was filed against respondent no.1 and he has not filed any complaint against the police before any higher authority against such implication.
10. The allegations levelled in the written statement howsoever strong that may be, cannot take place of proof. Therefore, the evidence which has come on the file only can be considered. It is a matter of record that there is no evidence at all to show that it was the deceased who was driving his motor cycle rashly and negligently.
11. The fact that Sh Jai Bhagwan died in that accident is also supported by his postmortem report on the dead body of victim. Considering all the evidence as discussed above, it stands proved that accident in question was caused due to rash and negligent driving Tractor bearing No. HR10Z1413 by respondent no.1 thereby causing death of Sh Jai Bhagwan. So this issue is therefore decided in favour of the petitioners and against respondents. ISSUE No.2: Whether the petitioners are entitled to compensation, if so, what amount and from whom? OPP.
12. The Petitioner no.1 is the wife , petitioner 2 to 5 are the children and petitioner No.6 is the mother of the deceased, as such LRs of victim.
13. Now coming to the extent of compensation. PW1 Smt Asha , has deposed that her husband was 44 years of age at the time of accident. He has deposed that at the time of accident, the deceased was working as worker with Parle Biscuits Pvt Ltd and was earning Rs.28,687/ p.m. His earning would have been increasing on day to day basis, if he could have alive. To prove the monthly income of the deceased petitioners have also examined PW 2 Sh Sajjan Singh, Assistant Manager HR, Parle Biscuits Pvt Ltd who has proved the last drawn MACT no.1335/2016 Asha & Ors. Vs. Mukesh & ors. Page 10 of 16 salary slip of deceased for the month of September 2017 vide Ex PW2/2. He has also proved experience certificate of deceased vide Ex PW2/3. Receipt of gratuity recerived by the wife of deceased Ex PW2/4. I have perused the salary slips Ex PW2/2. So far as allowances being paid to the deceased and as shown in the salary Slip Ex PW2/2 is concerned. Ld Counsel for the petitioner as well as Ld Counsel for the insurance company has conceded that these allowances are personal incentives of deceased and varied from time to time. So by deducting the Conveyance allowances, Washing allowances, cycle allowance, shift allowances, attendance allowances and by adding basic salary, Dearness allowances and HRA, the income for the purpose of computation of compensation is taken as Rs.10,165/ p.m. No tax have been deducted on the salary of victim. So as per the judgment, in the case Rajesh Vs Rajbir Singh 2013 ACJ 1403 SC of Hon'ble Supreme Court, the net income of the deceased is to be counted after adding future benefit @ 30%. There are six LRs of victim so he ( deceased) is presumed to be spending 1/5th of his income on his personal expenses. So the loss of dependency has to be taken as Rs. 10,571.60/ (10,165/ +3049.50/ 2642.90/) per month.
14. The age of the deceased was 44 years at the time of accident. To calculate loss of dependency, the multiplier has to be taken on the basis of age of deceased. A multiplier of 14 is thus taken in calculating loss of dependency. Counting in this way, loss of dependency comes to Rs. 17,76,028.80 ( 10,571.60/ x 12 x 14. ). This amount of Rs.17,76,000/ ( lumpsum ) is allowed to petitioners as loss of dependency.
MEDICAL EXPENSES.
15. So far as medical bills are concerned. Petitioners have placed on record medical bills for a sum of Rs.85,699/ which was spent on the medical treatment MACT no.1335/2016 Asha & Ors. Vs. Mukesh & ors. Page 11 of 16 of victim being paid to Sunflag Global Hospital. These medical bills are not disputed by the Insurance company. So an amount of Rs.85,699/ is awarded to the petitioners for the medical expenses.
16. Apart from amount mentioned above, petitioners no. 1 is also granted a sum of Rs.17,000/ for funeral expenses, Rs.17,000/ for loss of estate and Rs. 2,64,000/ (Rs. 44,000/ each to all the petitioners) for loss of consortium, making a total sum of compensation as Rs.21,59,699/ The Detail of the whole award amount is: i. Loss of dependency Rs. 17,76,000/ ii Medical expenses Rs. 85,699/ ii. Funeral expenses Rs. 17,000/ iii. Loss of Estate Rs. 17,000/ v. Loss of consortium Rs.44,000/ to each petitioner Rs. 2,64,000/ Total Rs. 21,59,699/
17. Ld Cousnel for the insurance company has argued that the offending Tractor on the date of accident, was used other than the agricultural purpsoes for which insurance policy was bought by R.2. And it was used by Kesari Nandan Material Supplier, Gohana Road, Rohtak. Ld Counsel for the insurance company submits that Kesari Nandan Material Supplier be considered that it was used for non agriculture purposes.
18. Having considered the submissions being made by Ld Counsel for the Insurance company and Ld Cousnel for the petitioners. Firstly, the accident occured by the Tractor ie machine and not with trolly. Secondly, there is no iota of MACT no.1335/2016 Asha & Ors. Vs. Mukesh & ors. Page 12 of 16 evidence on record being produced on behalf of the insurance company that Kesari Nandan Material Supplier is not using any agricultural material. And the word material cannot by itself be considered that it was material other than agriculture product. Moreover, the seizure memo placed on record Ex R3W1/1, vide which the offending vehicle was seized, does not find mentioned that any material was there in the dumper/trolly attached with the Tractor. Even other wise there is no evidence on record that on the date of accidenet the trolly was also having a specific material. So, this Tribunal cannot accept the submissions of Ld Counsel for the Insurance Company that word 'material' dipicts in the document Ex R3W1/1 is synonymous of material other than the agricultural material. So the submission of Ld Counsel for the insurance company has no force and the same is discarded.
19. Now coming to the extent of liability. It has already been held herein above that the deceased died due to rash and negligent driving of respondent no.1. He is primarily liable to make payment. However, the petitioners have made the respondent no. 3 (insurance company) as one of the party seeking direction to respondent no.3 that it be directed to pay the compensation to the petitioners. It is not in dispute that the offending vehicle was insured with the Respondent no.3 on the date of accident. Moreover, the evidence of the petitioner fully supports his case, therefore, this issue is decided in favour of the petitioners and against respondents by holding that petitioners are entitled for compensation from Respondent no.3 ISSUE NO.3 (RELIEF)
20. Petition in hands is allowed. Respondent no.3 is directed to pay a sum of Rs. 21,59,699/ alongwith interest @ 7.5% p.a from the date of filing of claim petition i.e. 20.11.2017 till the date of compliance i.e., 13.10.2023. Amount of MACT no.1335/2016 Asha & Ors. Vs. Mukesh & ors. Page 13 of 16 interim compensation (if any) be deducted from this amount. The awarded amount shall remain as tax free in view of the judgment of Hon'ble High Court in case in R/Special Civil Application No.4800 of 2021 titled The Oriental Insurance Co Ltd Vs Chief Commissioner of Income Tax (TDS) decided on 05.04.2022. APPORTIONMENT:
21. Petitioner No.1 is the wife ( Second wife ) of deceased. Petitioner No.2 and 3 are son and daughter of the deceased who are now major. Petitioner No.3 to 5 are minor daughters of deceased who are totally dependent upon their mother ie petitioner No.1. Petitioner No.6 is old aged mother of deceased. In view of the facts and circumstances the compensation to the Petitioner(s) be distributed as follows: S Name of Age Relation with Amount of Amount to Amount kept Period of FDR Mode:- Cash/ N Petitioner/Claimant (yrs) Injured/ Award be released in FDR Cheque/DD Deceased
1. Asha About Wife Rs.6,47,909.70 Rs.64,790.98/- Rs.5,83,118.72/- Five FDRs of RTGS alongwith 37 years ie 30% of total alongwith interest @ equal amount each interest @ 7.5% from the awarded amount 7.5% from date of filing for a period of one the date of of the petition ( As she has to filing of the till the date of year to five years petition till deposit of the date of award amount maintain her with cumulative deposit of minor children) award interest amount alongwith interest @ 7.5% from the date of filing of the petition till the date of deposit of award amount
2. Preeti About Daughter Rs.3,23,954.85/- Rs.32,395.48/- Rs.2,91,559.36/- Three FDRs of alongwith alongwith 22 years ie 15% of total interest @ equal amount each interest @ 7.5% from the 7.5% from the awarded amount date of filing date of filing for a period of one of the petition of the petition alongwith till the date of till the date of year to five years interest @ 7.5% deposit of deposit of from the date of award amount award amount with cumulative filing of the MACT no.1335/2016 Asha & Ors. Vs. Mukesh & ors. Page 14 of 16 petition till the interest date of deposit of award amount
3. Sagar About Son Rs.3,23,954.85/- Rs.32,395.48/- Rs.2,91,559.36/- Three FDRs of alongwith alongwith 20 years ie 15% of total interest @ equal amount each interest @ 7.5% from the 7.5% from the awarded amount date of filing date of filing for a period of one of the petition of the petition alongwith till the date of till the date of year to five years interest @ 7.5% deposit of deposit of from the date of award amount award amount with cumulative filing of the petition till the interest date of deposit of award amount
4. Kirti About Daughter Rs.3,23,954.85/- Rs.3,23,954.85/- Four FDRs of equal ( Now) ( Minor) ie 15% of total alongwith amount each for a interest @ 17 years awarded amount 7.5% from period of one year to the date of alongwith filing of the Four years with interest @ 7.5% petition till from the date of the date of cumulative interest filing of the deposit of petition till the award and first FDR shall date of deposit amount of award amount started to be paid to her when she attains her majority.
5. Ishita About Daughter Rs.3,23,954.85/- Rs.3,23,954.85/- Five FDRs of equal alongwith (Now) ( Minor) ie 15% of total amount each for a interest @ 7.5% from 13 yrs awarded amount period of five year the date of filing of the alongwith to ten years with petition till interest @ 7.5% the date of from the date of cumulative interest deposit of filing of the award petition till the and first FDR shall amount date of deposit of award amount be started to be paid to her when she attains her majority.
6. Bhateri About Mother Rs.2,15,969.90 Rs.21,596.99 Rs.1,94,372.91 Two FDRs of equal alongwith alongwith 75 years ie 10% of total interest @ amount each for a interest @ 7.5% from the 7.5% from the awarded amount date of filing date of filing period of one year to of the petition of the petition alongwith till the date of till the date of two years with deposit of MACT no.1335/2016 Asha & Ors. Vs. Mukesh & ors. Page 15 of 16 interest @ 7.5% deposit of award amount cumulative interest from the date of award amount filing of the petition till the date of deposit of award amount TOTAL Rs.21,59,699/- Rs.1,51,178.93/- Rs.20,08,520.05
22. The salient features as prescribed in the judgment in Rajesh Tyagi Vs. Ramesh Chandra Gupta FAO No. 842/2009 and MAC. App. No. 422/2009 decided on 07.11.2014 are to be applied:
(i) The fixed deposit be renewed automatically till the period prescribed by the Court.
(ii) The interest on the fixed deposit be paid monthly.
(iii) The monthly interest be credited automatically in the saving account of the claimant.
(iv) Original fixed deposit receipt be retained by the bank in safe custody.
However, the original passbook shall be given to the claimant along with the photocopy of the FDR.
(v) The original fixed deposit receipt be handed over to the claimant at the end of the fixed deposit period.
(vi) Photo identity card shall be issued to the claimant and the withdrawal shall be permitted only after due verification by the Bank of the identity card of the claimant.
(vii) No cheque book/ATM/debit card/credit card shall be issued to the claimant without permission of the Court.
(viii) No loan, advance or withdrawal or preencashment of FD amount shall be allowed on the fixed deposit without permission of the Court.
23. Respondent no.3 is directed to deposit entire amount of compensation with this tribunal, within 30 days from today, with advance notice to petitioners. File be consigned to record room.
ANNOUNCED IN THE OPEN (JAGDISH KUMAR)
COURT ON 14.09.2023 POMACT02,SOUTHWEST,
DWARKA, NEW DELHI
MACT no.1335/2016 Asha & Ors. Vs. Mukesh & ors. Page 16 of 16
MACT no.1335/2016 Asha & Ors. Vs. Mukesh & ors. Page 17 of 16