Delhi District Court
Kamla Devi W/O Roshan Lal vs Vinay Kumar S/O Sh Rameshwar Verma on 2 August, 2023
IN THE COURT OF SH: JAGDISH KUMAR PO:MACT2 (SOUTH
WEST): DWARKA: NEW DELHI
MACT No. 258/2016
GD No.23 dt 30.05.2014
PS Sureer Mathura U.P.
1.Kamla Devi W/O Roshan Lal
2.Roshan Lal S/O Bishan Lal
Both R/O B743, BlockB, DDA
Flats, Bindapur, Delhi110059
....Petitioners
VERSUS
1. Vinay Kumar S/O Sh Rameshwar Verma
R/O C16, Ram Nagar Om Vihar,
Uttam Nagar,Delhi
2. IFFCO Tokio General Insurance Co Ltd
10, FAI Building 1st Floor Shaheed Jit Singh Marg,
Qutub Industrial Area,
Delhi.
....Respondents
DATE OF INSTITUTION : 05.09.2014 ARGUMENTS HEARD ON : 02.08.2023 DATE OF AWARD : 02.08.2023
Petition under Section 163A of M.V. Act, 1988 for grant of compensation FORM - V COMPLIANCE OF THE PROVISIONS OF THE MODIFIED CLAIMS TRIBUNAL AGREED PROCEXDURE TO BE MENTIONED IN THE AWARD MACT no.258/2016 Kamla Devi & Ors. Vs. Vinay Kumar ors. Page 1 of 12
1. Date of the accident 25.05.2014
2. Date of intimation of the accident by the investigating N/A officer to the Claims Tribunal (Clause 2) ( Outstation case)
3. Date of intimation of the accident by the investigating d0 officer to the insurance company. (Clause 2)
4. Date of filing of Report under section 173 Cr.P.C. do before the Metropolitan Magistrate (Clause 10)
5. Date of filing of Detailed Accident Information Report do (DAR) by the investigating Officer before Claims Tribunal (Clause 10)
6. Date of Service of DAR on the Insurance Company do (Clause 11)
7. Date of service of DAR on the claimant(s). (Clause 11) do
8. Whether DAR was complete in all respects? (Clause do
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?
12. Date of appointment of the Designated Officer by the Not known insurance Company. (Clause20)
13. Name, address and contact number of the Designated Not known Officer of the Insurance Company. (Clause 20)
14. Whether the designated Officer of the Insurance Not known 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) MACT no.258/2016 Kamla Devi & Ors. Vs. Vinay Kumar ors. Page 2 of 12
16. Whether there was any delay or deficiency on the part N/A 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 Not known Insurance Company. (Clause 24)
18. Date of the Award 02.08.2023
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 07.04.2018 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 Not furnished. 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) R/O B743, BlockB, (Clause 27) DDA Flats, Bindapur, Delhi110059
24. Details of saving bank account(s) of the claimant(s) and Not furnished the address of the bank with IFSC Code (Clause 27)
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. MACT no.258/2016 Kamla Devi & Ors. Vs. Vinay Kumar ors. Page 3 of 12 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: 25.05.2014
2. Name of deceased: Rahul
3. Age of the deceased: 26 years
4. Occupation of the deceased: Private Service
5. Income of the deceased: Rs. 40,000/p.a (as per the claim).
6. Name, age and relationship of legal representatives of deceased:
S.No. Name Age Relation
(i) Kamla Devi 47 yrs Mother
(ii) Roshan Lal 51 yrs Father
Computation of Compensation
S.No. Heads Awarded by the Claims
Tribunal
7. Income of the deceased (A) Rs. 40,000/ p.a
8. AddFuture Prospects (B) (40%) N/A
9. LessPersonal expenses of the deceased Rs.13,333/ (1/3rd) (C)
10. Monthly loss of dependency { (A+B) - C =D}
11. Annual loss of dependency (Dx12) Rs. 26,667/ 12. Multiplier (E) 17
13. Total loss of dependency (Dx12xE = F) Rs. 4,53,339/
14. Medical Expenses (G) Nil MACT no.258/2016 Kamla Devi & Ors. Vs. Vinay Kumar ors. Page 4 of 12
15. Compensation for loss of love and Nil affection (H)
16. Compensation for loss of consortium Rs. 10,000/-
(I)
17. Compensation for loss of estate (J) Rs.2,500/
18. Compensation towards funeral Rs.2,000/ expenses (K)
19. TOTAL COMPENSATION Rs. 4,67,839/ (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 calulation
23. Award amount released 10%
24. Award amount kept in FDRs 90% equal monthly 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. 1.09.2023 (Clause 31) AWARD
1. In the present claim petition being filed under Section 163A of Motor Vehicles Act, the petitioners are seeking compensation for the fatal injuries suffered by Rahul S/O Sh Roshan Lal in the motor vehicular accident which was occurred on 25.05.2014 at Mathura Toll Tax at 87 KM Sureer,Mathura, U.P involving the motorcycle bearing no. DL4SAF6044 being driven and owned by respondent No.1. It is averred that when the aforesaid motor cycle reached at Mathura Toll Tax at 87 K.M, Sureer MACT no.258/2016 Kamla Devi & Ors. Vs. Vinay Kumar ors. Page 5 of 12 Mathura U.P, the suddenly struck against divider. As a result of which both the occupants of motor cycle fell down. The deceased received serious injuries, he was taken to Kailash hospital Greater Noida but the deceased expired during the treatment. The present matter pertains to deceased Rahul.
2. In the claim petition being filed under Section 163A of the Motor Vehicles Act, the petitioners have just claimed the compensation from the driver cum owner and insurance company, with whom the motorcycle bearing no. DL4SAF6044 is insured, under Section 163A of the Motor Vehicles Act.
3. Contending that said accident took place, and deceased Rahul succumbed to injury sustained due to use of motorcycle bearing no.DL 4SAF6044 , which was owned by respondent No.1 and insured with IFFCO TOKIO General Insurance Company Limited (respondent no.2), the petitioners have filed the present claim thereby claiming compensation U/S 163A of M.V Act, from respondents from the date of filing of claim petition till its realization.
4. The respondent No.1 has not filed any reply to the petition and was proceeded exparte vide order dated 27.01.2018.
5. The respondent no.2 (insurance company) has filed its written statement stating therein that the Insurance Company is not liable to pay compensation as policy No.42926904 relied upon by the petitioners in the present petition is a fake document as the aforesaid insurance policy is in respect of vehicle bearing No.DL9SS2843, for a period starting from 24.05.2009 to 23.05.2010 and same is issued in the name of Abdul MACT no.258/2016 Kamla Devi & Ors. Vs. Vinay Kumar ors. Page 6 of 12 Shakur.
6. After completion of the proceedings, following issues were framed on 02.07.2018:
(i) Whether Rahul sustained fatal injuries in a motor vehicle accident dated 25.05.2014 due to rash or negligent driving of vehicle No. DL4S AF6044 being driven and owned by Respondent No.1, and insured by Respondent No.2 IFFCO Tokio General Insurance Co Ltd ? OPP.
(ii) Whether the petitioners are entitled to claim compensation, if so,what amount and from whom? OPP.
(iii) Relief.
7. In order to prove their claim, petitioners have examined petitioner no.1 Sh. Kamla Devi as PW1 and Respondent No.2, Insurance company has examined Sh Roshan Kumar Thakur as R2W1.
8. I have heard ld. counsels appearing on behalf of petitioners and respondent No.2. None appeared on behalf of R.1 to argue the case. My issuewise findings are as under: ISSUE No.1: (i) Whether Rahul sustained fatal injuries in a motor vehicle accident dated 25.05.2014 due to rash or negligent driving of vehicle No. DL4S AF6044 being driven and owned by Respondent No.1, and insured by Respondent No.2 IFFCO Tokio General Insurance Co Ltd ? OPP.
9. The onus to prove this issue was upon the petitioners. To prove this fact petitioners examined petitioner no.1 Smt Kamla Devi as PW1 and in MACT no.258/2016 Kamla Devi & Ors. Vs. Vinay Kumar ors. Page 7 of 12 her evidence by way of affidavit (Ex.PW1/A), she reiterated the facts of the claim petition.
10. PW 1 Smt Kamla Devi has been duly crossexamined but testimony of PW1 with respect to accident while driving of the offending vehicle by respondent no.1 could not be impeached. Respondents no.1( driver cum owner ) has not filed any reply nor led any evidence in his defence. The fact that Rahul died in that accident is also supported by his postmortem report on the dead body of victim. A GD No.23 dt 30.05.2014 PS Sureer Mathura U.P was recorded in respect of accident. However, no eyewitness was found at the accident spot. In case titled R.P. Gautam Vs R.N.M Singh & Anr AIR 2008 MP 68 it has been held that FIR is not a condition precedenet for awarding claim. So the claim petition can be filed on the basis of G.D entry being made at P.S Sureer Mathura U.P. Now on perusal of evidence, it has been proved on record that the accident occurred due to use of offending vehicle bearing No.DL4S AF6044.
11. This issue is therefore decided in favour of the petitioners and against the respondents.
ISSUE No.2: Whether the petitioners are entitled to claim compensation, if so, what amount and from whom? OPP.
12. Petitioners No.1 and 2 are the parents of deceased and are the only LRs of deceased Rahul.
13. Now coming to the extent of compensation. According to the petitioners, at the time of accident, the deceased Rahul doing private service and earning Rs.40,000/ per annum. On the other hand, no contrary evidence being produced by respondents that deceased was not earning Rs.40,000/ per annum.
MACT no.258/2016 Kamla Devi & Ors. Vs. Vinay Kumar ors. Page 8 of 1214. Keeping in view the fact that the age of the deceased was 26 years old ( As per post mortem report) at the time of accident. The deceased was Bachelor at the time of accident so ( As per the Second Schedule U/S 163A of the Motor Vehicle Act, 1988, as this case pertains to the year 2014 ) deceased spending 1/3rd of his income as his personal expenses which the victim would have been incurred towards maintaining himself had he been alive. Therefore the income for the purpose of loss of dependency has to be taken as Rs. 26,667/ (40,000/ 13,333/) per annum.
15. To calculate loss of dependency, the multiplier has to be taken on the basis of age of deceased. A multiplier of 17 is thus taken in calculating loss of dependency. Counting in this way, loss of dependency comes to Rs. 4,53,339/ (26,667/ x 17). This amount of Rs.4,53,339/ is allowed to petitioners for loss of dependency.
16. Apart from amount mentioned above, petitioners are also granted a sum of Rs.2,000/ for funeral expenses, Rs.2,500/ for loss of estate and Rs. 5,000/ each for loss of consortium making a total sum of Rs. 4,67,839/ Detail of the whole award amount is: i. Loss of dependency Rs. 4,53,339/ ii. Funeral expenses Rs. 2,000/ iii. Loss of Estate Rs. 2,500/ iv. Loss of consortium Rs. 10,000/-
(Rs 5,000/ to each petitioner) MACT no.258/2016 Kamla Devi & Ors. Vs. Vinay Kumar ors. Page 9 of 12 Total Rs. 4,67,839/
17. Now, the question which arises for determination is as to which of the respondents is liable to pay the compensation amount.
18. Ld Counsel for the respondent No.2 Insurance company has argued that insurance policy relied upon by the petitioner is a fake document. In support of his submission respondent No.2 examined Sh Roshan Kumar Thakur, as R2W1/A, who has deposed that offending vehicle bearing No. DL4SAF6064 was not insured with R2 at the time of accident. He has deposed that insurance policy No. 42926904 was in respect of vehicle No.DL9SS2843 in the name of Abdul Shakur. He has deposed that the policy being relied upon by petitioners is a fake documents. He has proved copy of notice U/S 12 rule 8 CPC vide Ex R2W1/1 issued to respondent No.1, postal receipt Ex PW1/3 and copy of policy issued by the company in favour of Abdul Shakur is Ex R2W1/5. He has proved the complaint being made to SHO Naraina Delhi Ex R2W1/6.
19. So in view of the fact that Insurance policy in respect of offending vehicle was fake and the offending vehicle was not insured with insurance company, (R2) at the time of accident. Thus R.2 insurance company is not liable to pay compensation to the petitioners. Reliance is place on the judgment of Hon'ble High Court of Delhi in case titled as Shriram General Insurance Co Ltd Vs Kamlesh Jha & Ors MAC APP 25/2017 decided on 18.05.23 The respondent No.1 ( driver cum owner ) is solely directed to pay the award amount.
MACT no.258/2016 Kamla Devi & Ors. Vs. Vinay Kumar ors. Page 10 of 12ISSUE NO.3 (RELIEF)
20. Petition in hands is allowed. Respondent no.1 ( driver cum owner is directed to pay a sum of Rs.4,67,839/ alongwith interest @ 7.5% to the petitioners as compensation in this case, within 30 days from today, from the date of filing of claim petition i.e. 05.09.2014 till the date of compliance i.e., 01.09.2023.Amount of 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. In view of the fact that petitioners are the only LRs of deceased, hence the compensation to the Petitioner be distributed as follows: S Name of Age Relation with Amount of Amount to be Amount kept Period of FDR Mode:-
N Petitioner/Claimant (yrs) Injured/ Award released in FDR Cash/ Deceased Cheque/D D
1. Kamla Devi 47 yrs Mother Rs. 2,33,919.50/ Rs. 23,391.95/- Rs.2,10,527.55/- Two yearly RTGS2 FDRs of equal amount each for a period of one year to two year with cumulative interest .
2 Roshan Lal 51 yrs Father Rs. 2,33,919.50/ Rs. 23,391.95/- Rs.2,10,527.55/- Two yearly RTGS FDRs of equal amount each for a period of one year to two year MACT no.258/2016 Kamla Devi & Ors. Vs. Vinay Kumar ors. Page 11 of 12 with cumulative interest .
TOTAL Rs. 4,67,839/ Rs.46,783.90/- Rs.4,21,055.10/-
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.1 ( Driver cum owner ) 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 02.08.2023 POMACT02,SOUTHWEST,
DWARKA, NEW DELHI
MACT no.258/2016 Kamla Devi & Ors. Vs. Vinay Kumar ors. Page 12 of 12