Delhi District Court
Lr'S Of Om Prakash vs . Gaurav Mandotia & Ors. Page 1 Of 32 on 28 February, 2022
LR's of Om Prakash Vs. Gaurav Mandotia & Ors. Page 1 of 32
IN THE COURT OF MS. JASJEET KAUR, PRESIDING OFFICER, MOTOR
ACCIDENT CLAIMS TRIBUNAL, NORTH WEST DISTRICT, ROHINI COURTS,
DELHI
New No.3792018
UNIQUE ID No. : DLNW010056182018
1. Smt. Sheela W/o Late Sh. Om Prakash
(Widow of deceased)
2. Sh. Hemant S/o Late Sh. Om Prakash
(Son of deceased)
........ Petitioners/claimants
Both R/o H.No. JIII/186, Wazirpur, J.J. Colony,
Ashok Vihar, Delhi110052.
Vs.
1.Sh. Gaurav Mandotia S/o Sh. Satish Chand,
R/o B211, Ground FloorI,
Rajveer Colony, Delhi110096.
....... Drivercumowner/R1
2. The Oriental Insurance Company Limited,
Mandaliy Karyalaya25,
Maruti Model Office88,
New Delhi110001.
....... Insurance Co./R2
Other details
DATE OF INSTITUTION : 22.05.2018
DATE OF RESERVING JUDGMENT : 19.02.2022
DATE OF PRONOUNCEMENT : 28.02.2022
FORM - V
COMPLIANCE OF THE PROVISIONS OF THE MODIFIED CLAIMS TRIBUNAL
AGREED PROCEDURE TO BE MENTIONED IN THE AWARD AS PER FORMAT
REFERRED IN THE ORDER PASSED BY THE HON'BLE DELHI HIGH COURT IN
FAO 842/2003 RAJESH TYAGI Vs. JAIBIR SINGH and ORS. VIDE ORDER DATED
07.12.2018.
1. Date of the accident 02.04.2018
2. Date of intimation of the accident by the 22.05.2018
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investigating officer to the Claims Tribunal
3. Date of intimation of the accident by the 22.05.2018
investigating officer to the insurance company.
4. Date of filing of Report under section 173 Cr.P.C. Not mentioned in the
before the Metropolitan Magistrate DAR
5. Date of filing of Detailed Accident Information 22.05.2018
Report (DAR) by the investigating Officer before
Claims Tribunal
6. Date of Service of DAR on the Insurance Company 22.05.2018
7. Date of service of DAR on the claimant (s). 22.05.2018
23.11.2017
8. Whether DAR was complete in all respects? Yes
9. If not, whether deficiencies in the DAR removed N/A
later on?
10. Whether the police has verified the documents filed Yes.
with DAR?
11. Whether there was any delay or deficiency on the N/A
part of the Investigating Officer? If so, whether any
action/direction warranted?
12. Date of appointment of the Designated Officer by 22.05.2018
the insurance Company.
13. Name, address and contact number of the Sh. Sunil Mohan,
Designated Officer of the Insurance Company. Advocate
14. Whether the designated Officer of the Insurance No
Company submitted his report within 30 days of the
DAR? (Clause 22)
15. Whether the insurance company admitted the Not fairly computed the
liability? If so, whether the Designated Officer of the compensation
insurance company fairly computed the
compensation in accordance with law.
16. Whether there was any delay or deficiency on the N/A
part 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 Legal offer not filed
the Insurance Company .
18. Date of the Award
19. Whether the award was passed with the consent of No
the parties?
20. Whether the claimant(s) were directed to open Yes
saving bank account(s) near their place of
residence?
21. Date of order by which claimant(s) were directed to 18.03.2019
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).
22. Date on which the claimant (s) produced the 19.02.2020
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passbook of their saving bank account near the
place of their residence along with the endorsement,
PAN Card and Aadhar Card?
23. Permanent Residential Address of the Claimant(s) As mentioned above
24. Details of saving bank account(s) of the claimant(s) Petitioners Smt.Sheela
and the address of the bank with IFSC Code Devi savings bank a/c
No.37817584698,
and Sh. Hemant
saving bank a/c
No.20160105954, both
SBI, Kamla Nagar
Branch, Delhi,
IFSC : SBIN0001155
25. Whether the claimant(s) saving bank account(s) is Yes
near his place of residence?
26. Whether the claimant(s) were examined at the time Yes
of passing of the award to ascertain his/their
financial condition.
27. Account number/CIF No, MICR number, IFSC 86143654123,
Code, name and branch of the bank of the Claims 110002427,
Tribunal in which the award amount is to be SBIN0010323, SBI,
deposited/transferred. (in terms of order dated Rohini Courts, Delhi
18.01.2018 of Hon'ble Delhi High Court in FAO
842/2003 Rajesh Tyagi vs Jaibir Singh.
JUDGMENT
1. The present claim proceedings have emanated from a Detailed Accident Report (hereinafter referred to as DAR) filed on 22.05.2018 with reference to FIR No.122/18 registered for the commission of offences of causing hurt by rash and negligent driving of a motor vehicle on a public road punishable U/s 279/337 of Indian Penal Code 1860 (hereinafter referred to as IPC) at PS Bharat Nagar wherein subsequent charge sheet for the alleged commission of offences of causing death not amounting to culpable homicide by rash and negligent driving punishable u/s 279/304A IPC against one Gaurav Mandotia (hereinafter referred to as respondent No.1/R1) was also filed in respect of death of one Sh. Om Parkash (hereinafter referred to as the deceased/the victim). The learned Predecessor Court had vide order dated 22.05.2018 treated the DAR as petition u/s 166(4) of the Motor Vehicles Act, 1988 (in short referred to as 'M.V. Act').
2. The brief facts of the case as discernible from the DAR and the documents of the Legal Heirs of the deceased (hereinafter referred to as the petitioners/the claimants or the "LRs of the deceased) are that on 01.04.2018, victim Sh. Om LR's of Om Prakash Vs. Gaurav Mandotia & Ors. Page 3 of32 LR's of Om Prakash Vs. Gaurav Mandotia & Ors. Page 4 of 32 Prakash was returning to his residence at Bunkar Colony, Bharat Nagar, Delhi on his rehri which was being peddled by him at a normal speed and on correct side of the road and at about 10:45 pm, upon reaching near Community Center of Nimri Colony, Opposite Bharat Nagar Main Road, Delhi, a Wagon R car bearing registration No. UP16ET0058 (hereinafter referred to as 'the offending vehicle') coming from the side of J.J. Colony, Wazirpur being driven by its driver/R1 Gaurav Mandotia at a very high speed and in a rash and negligent manner without blowing any horn in violation of the traffic rules had hit against the rehri of the victim with a great force as a consequence of which victim Om Prakash had fell down on the road and had sustained grievous injuries. It is further the case of the petitioners that the victim was immediately removed by the public persons to Deep Chand Bandhu Hospital (hereinafter referred to as DCB Hospital), Ashok ViharIV, Delhi, where upon medical examination vide MLC no.6221/18 he was referred to higher centre for treatment and NCCT examination of head due to head injuries sustained by him (the victim). The victim was accordingly shifted to Dr. Ram Manohar Lohia Hospital (hereinafter referred to as RML Hospital), New Delhi for further treatment where he had expired during the course of treatment on 05.04.2018.
2.1 The postmortem on the body of the deceased was conducted by Dr. Shalini Girdhar, Associate Professor, Department of Forensic Medicine, RML Hospital, New Delhi vide Postmortem Report(PMR) No.262/18/SG Ref. No.5/4 dated 06.04.2018, wherein the cause of death had been opined as shock due to multiple injuries sustained by the victim including sub scalp haematoma on the left frontal region, bilateral parietal bone fracture horizontally placed of size 5cm on left side and 3cm on right side with associated haematoma and subarachnoid haemorrhage caused by blunt force impact which could be possible in a road traffic accident. Besides, as per the report of the autopsy surgeon all injuries detected on the body of the deceased were antemortem in nature, that is, had occurred immediately prior to his death.
3. R1/Gaurav Mandotia who was the drivercumowner of the offending vehicle had filed his written statement wherein he had claimed that the present DAR was based on the suppressed statement of facts and did not disclose any cause of action against him and therefore, the same was liable to be dismissed. It had been further stated in written statement of R1 that the petitioners had not approached this Court with clean hands and had concealed the material facts from this tribunal with a view LR's of Om Prakash Vs. Gaurav Mandotia & Ors. Page 4 of32 LR's of Om Prakash Vs. Gaurav Mandotia & Ors. Page 5 of 32 to extort an exaggerated sum of money from the respondents. It had been further averred in the written statement that of R1 that his vehicle was insured with Oriental Insurance Company Ltd. vide policy No. 215700/31/2018/120163 having its validity period commencing with effect from 20.09.2017 and expiring on the midnight of 19.09.2018 and thus, the insurance policy of his vehicle was live and valid as on the date of occurrence of the case accident. It had also been claimed in the written statement of R1 that he was holding a valid driving licence bearing No. DL 0720080239301 issued by Transport Department of Government of NCT of Delhi which was valid for driving Light Motor Vehicle (LMV) upto 23.04.2016 and thus, he was authorised to drive a light motor vehicle including car on a public road. It had been thus claimed in the written statement of R1 that he was not liable to pay any compensation to the LRs of the deceased and the liability to pay compensation, if any, would be that of the insurance company with which his vehicle was duly insured at the time of occurrence of the case accident.
4. The Oriental Insurance Company Limited (hereinafter referred to as Respondent no. 2/R2) had filed its written statement wherein, it had been admitted that the offending vehicle was duly insured through it (R2) vide policy no.215700/31/2018/120163 having its validity period commencing from 20.09.2017 and expiring on midnight of 19.09.2018. The respondent no.2 had claimed in its written statement that it was not liable to pay any compensation to the LRs of the deceased because R1 had consumed liquor at the time of occurrence of the accident in question and R1 was thus driving the offending vehicle under the influence of liquor as per his MLC in breach of terms and conditions of the insurance policy. However, the investigating officer had deliberately not mentioned the factum of commission of offence punishable u/s 185 M.V. Act by the driver of the offending vehicle either in the FIR or in the chargesheet. It had been further claimed in the written statement of R2 that the amount claimed by the petitioner on account of accident was exaggerated and the medical bills as well as the medical record of the deceased had not been filed alongwith the DAR. The insurance company has also sought permission to invoke all defences and to contest the matter under the provisions of chapter5(11)(4) of the Claims Tribunal Agreed Procedure and Section 149(2) as well as Section 170 of Motor Vehicle Act in case, the driver of the offending vehicle would fail to contest the present petition or was found to be in collusion with the petitioner. It had been prayed in the written statement of R2 that, LR's of Om Prakash Vs. Gaurav Mandotia & Ors. Page 5 of32 LR's of Om Prakash Vs. Gaurav Mandotia & Ors. Page 6 of 32 in fact, there appeared to be some collusion between R1 and petitioner and, if it was otherwise established during the trial of the present matter that the accident in question had occurred due to the negligence of the deceased himself, then, no liability be affixed on the insurance company to pay compensation to the LRs of the petitioner. Besides, it had been averred in the written statement of R2 that the DAR itself was not reliable and maintainable and the petitioners must be put to strict proof of all the facts mentioned in the DAR.
5. From the pleadings of the parties, the following issues were framed by the learned Predecessor Court vide order dated 29.08.2018: (1) Whether on 02.04.2018 at about 10:45 pm, at Community Center Nimri, in front of Bharat Nagar, Main Road, Delhi, one Wagon R Car bearing registration No. UP16ET0058, which was being driven rashly and negligently by Gaurav, hit a handcart and caused the death of Om Prakash?OPP (2). Whether petitioners are entitled to compensation, if so, to what amount and from whom? OPP (3) Relief.
6. After the framing of issues, opportunities were given to all the parties to prove their respective versions of the case by leading evidence in support of the same. The petitioners/ LRs of the deceased had examined two witnesses in support of their case. Smt. Sheela, wife of the deceased had been examined as PW1, whereas eye witness Avinash had been examined as PW2 by the petitioners. No other witness had been examined by the petitioners/the LRs of deceased.
7. A perusal of court record reveals that R1 had not examined any witness in support of his version of the case whereas R2/insurance co. had examined two witnesses in support of its case. Ms. Neelam Rani, Assistant, Oriental Insurance Company Limited had been examined as R2W1 and another witness, namely, Sh. Basant Chauhan, Junior Assistant, Transport Department, 5/9, Under Hill Road, Delhi110054 had been examined as R2W2. No other witness had been examined by the insurance co./R2 in support of its case.
8. I have heard the final arguments addressed by Sh. Anoop Pandey, learned counsel for the petitioners and Sh. Sunil Mohan, learned counsel for the respondent no.2. My issuewise findings based on my appreciation of the evidence led by the parties in support of their respective versions of the case are reproduced herein LR's of Om Prakash Vs. Gaurav Mandotia & Ors. Page 6 of32 LR's of Om Prakash Vs. Gaurav Mandotia & Ors. Page 7 of 32 below.
9. Issue wise findings: ISSUES No. 1 Whether on 02.04.2018 at about 10:45 pm, at Community Center Nimri, in front of Bharat Nagar, Main Road, Delhi, one Wagon R Car bearing registration No. UP16ET0058, which was being driven rashly and negligently by Gaurav, hit a handcart and caused the death of Om Prakash?OPP The onus of proving this issue beyond preponderance of probabilities was upon the petitioners/ claimants.
10. The petitioners/claimants have examined two witnesses in support of their case. Wife of the deceased, namely, Smt. Sheela Devi has been examined as PW1, whereas Sh. Avinash, an eye witness of the case accident has been examined as PW2.
10.1 PW1 had deposed by way of affidavit Ex. PW1/A, wherein she had reiterated the facts mentioned in the DAR by deposing that the rehri being peddled by her husband Sh. Om Prakash aged about 59 years had been hit by the offending vehicle being driven in a rash and negligent manner on 01.04.2018 at about 10.45 p.m. near Community Centre, Nimri, Opposite Bharat Nagar, Main Road, Delhi. She stated that her husband was street food seller engaged in the business of selling Gol Gappe, Tikki piece and Dahi Bhalley etc. and his monthly income was between Rs.15,000/ to Rs.20,000/. She claimed that her husband had left behind eight legal heirs including herself and seven children, namely, Jitender aged 42 years, Bharti Singh aged 38 years, Neelam aged 37 years, Rekha aged 36 years, Yashu aged 34 years, Mamta aged 32 years and Hemant aged 30 years, all of whom were married except Hemant. PW1 had further deposed that all the legal heirs of the deceased were dependent upon the deceased for income and guidance. She had also claimed that she had spent Rs.50,000/ on transportation and last rites of the deceased. She had relied upon the following documents in support of the case of the petitioners.
a. Photocopy of election identity card of deceased Ex.PW1/1.
b. Photocopy of her PAN Card Ex.PW1/2.
c. Photocopy of her Aadhar Card Ex.PW1/3.
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d. Photocopy of Aadhar Card of Jitender Ex.PW1/4.
e. Photocopy of Aadhar Card of Bharati Singh Ex.PW1/5.
f. Photocopy of Aadhar Card of Neelam Ex.PW1/6.
g. Photocopy of Aadhar Card of Rekha Ex.PW1/7.
h. Photocopy of Aadhar Card of Yashu Ex.PW1/8.
i. Photocopy of Aadhar Card of Mamta Ex.PW1/9.
j. Photocopy of PAN card of Hemant Ex.PW1/10.
k. Photocopy of Aadhar Card of Hemant Ex.PW1/11.
l. Attested copy of DAR Ex.PW1/12 (colly).
10.2 In her crossexamination by Sh. Dinesh Kumar, learned counsel for the
respondent no. 1, PW1 had admitted that she was aged about 65 years and was not an eye witness of the case accident. She deposed that she had been informed by someone about the fact that her husband had met with an accident. She denied the suggestion that her deceased husband was earning Rs. 15,000/ to Rs. 20,000/ per month. She deposed that that she had no documentary proof to establish that she had incurred Rs. 50,000/ as expenses on conveyance and last rites of her deceased husband. She further deposed that she was living with her children. She denied the suggestion that she was not dependent upon her deceased husband at the time of occurrence of the case accident.
10.3 In her crossexamination by Sh. Sunil Mohan, learned counsel for the Insurance Company/R2, PW1 deposed that she was not an eye witness of the case accident. She denied the suggestion that her deceased husband was aged about 75 years at the time of occurrence of the alleged accident. She further denied the suggestion that her deceased husband was neither working nor earning anything at the time of the case accident. She also denied the suggestion that her deceased husband was not an income tax payee. She deposed that she had seven children, out of whom all were married except one, namely, Hemant, who was aged about 40 years. She denied the suggestion that the averments made by her regarding financial loss, loss of consortium, loss of love and affection suffered by her as well as the averments made by her regarding the income and contribution in household expenses by her deceased husband and the expenses incurred by her on LR's of Om Prakash Vs. Gaurav Mandotia & Ors. Page 8 of32 LR's of Om Prakash Vs. Gaurav Mandotia & Ors. Page 9 of 32 transportation and last rites of her deceased husband in paragraph No. 6,7 and 8 of her evidence by way of affidavit were false and fabricated and she had not spent any amount on conveyance and funeral expenses. She further denied the suggestion that she had filed false and fabricated documents in support of her case.
10.4 PW2 Avinash deposed by way of affidavit Ex. PW2/A, wherein, he had supported the petitioner's version of the case by stating that on 01.04.2018, he was coming towards his residence at J.J. Colony from Bunker Colony on foot and at about 10:45 pm, upon reaching near Community Center Nimri, Opp. Bharat Nagar Main Road, Delhi, he had noticed that a car bearing registration No.UP16ET0058 (WagonR) being driven by its driver at a very high speed, in a rash and negligent manner and without blowing any horn had come from the side of J.J. Colony, Wazirpur and hit had against a rehri with a great force as a consequence of which the Rehri had got over turned whereas the victim had fell down on the road and had thereby sustained grievous injuries on his person. He further deposed that he along with other public persons present at the spot had immediately taken the victim to Deep Chand Bandhu Hospital, Ashok ViharIV, Delhi where the victim was medically examined vide MLC No.6221/18 and was referred to Dr. Ram Manohar Lohia Hospital, New Delhi, where he had died during the course of treatment on 05.04.2018. He further deposed by way of affidavit that the case accident had occurred solely due to negligence of driver of Car bearing registration No. UP16ET 0058 (WagonR).
10.5 In his crossexamination by Sh. Dinesh Kumar, learned counsel for R1, PW2 deposed that he was working as Labourer at Shastri Nagar and was returning home by foot from his working place at Shastri Nagar at about 9:30 pm. He further deposed that at the time of accident, he was well behind the deceased and was at the distance of about 1520 feet from the deceased, when the vehicle bearing registration No.UP16ET0058 had come from front side and had hit Mr.Om Prakaskh due to which the said Om Prakash had fell down on the road and had sustained grievous injuries. He denied the suggestion that the alleged accident had not been caused by the aforesaid vehicle. He further denied the suggestion that the driver of the offending vehicle had stopped his car only to help the injured by shifting him to the hospital to save his life. He also denied the suggestion that the accident in question had been caused by some other vehicle.
LR's of Om Prakash Vs. Gaurav Mandotia & Ors. Page 9 of32 LR's of Om Prakash Vs. Gaurav Mandotia & Ors. Page 10 of 32 10.6 In his crossexamination by Sh. Sunil Mohan, learned counsel for insurance company/R2, PW2 deposed that he was running the business of ready made garments which he used to purchase from Tank Road, Delhi. He further deposed that he had not maintained any record regarding his business. He further deposed that he was going to his residence situated at J.J. Colony from Nimri Colony by foot on the day of accident and when he had reached at Barat Ghar of Nimri Colony, he had noticed that one Wagon R car had hit a handcart. He clarified that the PCR had not been called by him. He further deposed that he had accompanied the injured at the time of his hospitalization and his statement was recorded by the police. He stated that R1 was not present in the hospital whereas he himself was present in the hospital at the time of death of the injured. He deposed that driver/R1 was under the influence of liquor at the time of accident. He further deposed that he had no concern (relation) with the family of the deceased. He denied the suggestion that he was not present at the spot of accident. He also denied the suggestion that his statement had not been recorded by the police.
10.7 A perusal of court record reveals that R1/drivercumowner had not examined any witness in support of his case.
10.8 A perusal of court record reveals that R2/insurance co. has examined two witnesses, namely, Ms. Neelam Rani, Assistant, Oriental Insurance Company Limited, F14 & 20, First & Third Floor, United India Life Building, Connaught Place, Delhi as R2W1 and Sh. Basant Chauhan, Junior Assistant, Transport Department, 5/9, Under Hill Road, Delhi110054 as R2W2. No other witness has examined by R2 in support of its case.
10.9 R2W1 Ms. Neelam Rani, Assistant, Oriental Insurance Company Limited, has deposed by way of affidavit as Ex.R2W1/A, wherein she had reiterated the facts narrated in the written statement of R2 by claiming that although the offending vehicle was insured in favour of R1 vide policy No. 215700/31/2018/120163 having validity period commencing from 20.09.2017 and expiring on 19.09.2018. However, the R1 was driving the offending vehicle under the influence of alcohol at the time of occurrence of the case accident and therefore the insurance co./R2 was not liable to pay any compensation to the petitioners and the compensation, if any, was supposed to be paid by R1. She further deposed that driving licence no.0720080239301 dated 05.04.2008 possessed by R1 at the time of accident was LR's of Om Prakash Vs. Gaurav Mandotia & Ors. Page 10 of32 LR's of Om Prakash Vs. Gaurav Mandotia & Ors. Page 11 of 32 valid for LMV(NT), however, R1 was driving a commercial vehicle carrying passengers at the time of accident and therefore he was not holding a valid driving licence for the purpose of authorising him to drive a commercial vehicle and thus he had committed a breach of the terms and conditions of the insurance policy. She stated that in view of violation of terms and conditions of insurance policy the respondent number 2 was not liable to pay any compensation to the victim. She further deposed that despite issuance of notice U/o XII Rule 8 CPC dated 02.07.2019 R1 had failed to produce his commercial licence. R2W1 relied upon the following documents in support of the averments made in her evidence by way of affidavit: a. Insurance policy Ex.R2W1/1.
b. Notice U/o XII Rule 8 CPC, issued by R2 Ex.R2W1/2. c. Post receipt of dispatch of notice U/o XII Rule 8 CPC to the address of R1 Ex.R2W1/3.
10.10 In her crossexamination by Sh. Anoop Kumar Pandey, learned counsel for the petitioners, R2W1 had admitted that the offending vehicle was insured with the insurance company as on the date of occurrence of the case accident. 10.11 R2W1 was also crossexamined by Sh. Dinesh Kumar, learned counsel for R1/drivercumowner of the offending vehicle, wherein she deposed that she was not an eye witness of the case accident. She further deposed that she had only deposed on the basis of DAR report. She further deposed that averments made in para no.5 of her affidavit Ex.R2W1/A regarding use of LMV(NT) by the R1 for driving a commercial vehicle were based on the report of IO. She denied the suggestion that driver/R1 was having valid driving licence at the time of accident or that R1 was not using the offending vehicle for commercial purpose. 10.12 The R2/insurance co. has also examined another witness, namely, Sh. Basant Chauhan, Junior Assistant, Transport Department, 5/9, Under Hill Road, Delhi110054 as R2W2, who produced the summoned record, that is, extracts of driving licence of Gaurav Mandotia, Ex.R2W2/1. He further deposed that the licence holder of the above mentioned licence was authorized to drive an LMV, however, the said licence was not for driving commercial vehicles.
10.13 Sh. Anoop Kumar Pandey, learned counsel for the petitioners had not availed the opportunity given to him by the court to crossexamine this witness.
LR's of Om Prakash Vs. Gaurav Mandotia & Ors. Page 11 of32 LR's of Om Prakash Vs. Gaurav Mandotia & Ors. Page 12 of 32 R2W1 was crossexamined by Sh. Dinesh Kumar, learned counsel for R1/driver cumowner of the offending vehicle, wherein he had admitted that as per Ex.R2W1/1, R1 can drive WagonR Car as his DL was for LMV. He also admitted that as per the latest judgment of Hon'ble Supreme Court of India, a person having a D.L valid for LMV can also drive LMV commercial vehicles. 10.14 No contradictions or material discrepancies have appeared in the cross examination of PW2 to discredit his above said testimony which were capable of demolishing the case of the petitioners to the effect that the case accident had occurred due to rash and negligent driving of the offending vehicle by R1 and the death of victim Om Prakash had occasioned therefrom. PW2 Avinash was an independent eye witness who had no reason to depose falsely against R1. The testimony of PW2 is reliable and he is a trustworthy witness whose deposition has remained infallible and unwaivered during his lengthy crossexamination by the respondents. The circumstances in which the accident had occurred establish that it had occurred solely due to the rash driving of R1 at the above said date, time and place who had hit his vehicle against the rehdi of the victim, thereby causing fatal injuries on the person of victim Om Prakash.
10.15 In the facts and circumstances of the case, the charge sheet filed in FIR No. 122/18 U/s 279/304A IPC of PS Bharat Nagar against R1 in the Criminal Court can also be relied upon by this court for the purpose of corroboration of other evidence led by the petitioners in support of their version of the case and can thus lead this court to a finding to the effect that the case accident had occurred due to rash and negligent driving of the offending vehicle by R1. The copy of seizure memo of said offending car is also on record as part of the said chargesheet. The mechanical inspection report of the said offending Wagon R car bearing registration no. UP16ET0058 is also on record showing that there were fresh damages on the front side body fender and head lights as well as front side bumper of the offending car with scratches and dislocation on the right side portion. Besides, there were scratches on the right side bonnet and damage to right side mirror as well as right side driver door which was found bent. Also, the front side wind screen glass of the offending vehicle was found broken and right side body and bumper of the said car were found damaged, whereas the glass of its rear side diggi door was found broken. Moreover, the left rear side door glass (window) of the car in question was also found borken in the mechanical inspection of the offending vehicle. However, LR's of Om Prakash Vs. Gaurav Mandotia & Ors. Page 12 of32 LR's of Om Prakash Vs. Gaurav Mandotia & Ors. Page 13 of 32 the report of the inspector also mentioned that the vehicle in question was found fit for road test.
10.16 The postmortem on the body of the deceased was conducted by Dr. Shalini Girdhar, Associate Professor, Department of Forensic Medicine, RML Hospital, New Delhi vide Postmortem Report(PMR) No.262/18/SG Ref. No.5/4 dated 06.04.2018, wherein the cause of death had been opined as shock due to multiple injuries including sub scalp haematoma on the left frontal region, bilateral parietal bone fracture horizontally placed of size 5cm on left side and 3cm on right side with associated haematoma and subarachnoid haemorrhage caused by blunt force which could have been possibly caused in a road traffic accident and all injuries detected on the body of the deceased were antemortem in nature, that is, had occurred immediately prior to his death.
10.17 The issue no. 1 is only to be proved by claimants beyond preponderance of probabilities as distinguished from beyond reasonable doubt. In view of above said discussion, criminal case record including charge sheet and testimony of PW2, it has been proved beyond preponderance of probabilities that the case accident had been caused by R1 who was driving the offending vehicle in a rash and negligent manner at the above said date, time and place and had hit the same against the rehdi of victim thereby causing the death of victim Om Prakash.
Issue no.1 is accordingly decided in favour of petitioners and against the respondents.
11. Issue No. (2) Whether petitioners are entitled to compensation, if so, to what amount and from whom? OPP 11.1 In view of my findings on issue no.1 regarding negligence of R1 resulting in the occurrence of the case accident, I am of the considered opinion that the petitioners/claimants are entitled to compensation in respect of demise of the victicm Om Prakash in the above mentioned road traffic accident, I shall now examine the entire evidence including the documents of the petitioners/claimants for the purpose of arriving at a finding about the quantum of compensation to which the petitioners/claimants are entitled.
11.2 Petitioners have examined two witnesses in support of their version of LR's of Om Prakash Vs. Gaurav Mandotia & Ors. Page 13 of32 LR's of Om Prakash Vs. Gaurav Mandotia & Ors. Page 14 of 32 the case including PW1 Smt. Sheela Devi who was the wife of the deceased and had made deposition regarding the income of the deceased at the time of his demise as well as regarding the contribution of the deceased to the household expenses of their family. She has also categorically stated in her evidence by way of affidavit Ex. PW1/A that the case accident had occurred due to rash and negligent driving of the offending car by R1 and as a consequence of the same her husband Om Prakash had sustained grievous injuries and was medically examined at Deep Chand Bandhu Hospital, Ashok ViharIV, Delhi vide MLC no.6221/18. She had also deposed that her husband had subsequently expired during treatment at Dr. RML Hospital, New Delhi and his postmortem was conducted vide postmortem report No.262/18/SG Ref. No.15/4, whereby it had been duly established that the most immediate and proximate cause of the death of her husband were the injuries sustained in the case accident. The deposition of PW1 regarding the rash and negligent driving of the offending vehicle by R1 causing fatal injuries on the person of her husband Om Prakash has been duly corroborated with the deposition of eye witness PW2 Avinash, who has categorically stated that R1 was driving his vehicle at a high speed and in a rash and negligent manner in violation of the traffic rules at the time of collision of the said vehicle with the rehdi of deceased Om Prakash.
11.3 PW1 Smt. Sheela Devi had withstood her crossexamination by the learned counsels for all the respondents and had reaffirmed during her crossexamination that her husband was earning about Rs.15,000/ to Rs. 20,000/ per month and out of the said amount her deceased husband was also contributing towards their monthly household expenses. However, PW1 has not produced any documentary evidence in the form of ITR etc. to establish that her husband was in fact earning Rs. 15,000/ to Rs. 20,000/ per month. She has also not produced the documents in support of her monthly household expenses such as electricity bill, grossery bill etc. whereby a finding can be indirectly arrived at to the effect that the monthly income of the deceased was between Rs. 15,000/ to Rs. 20,000/ per month. Besides, no document has been filed by PW1 to prove the educational qualifications of her deceased husband as well as to establish as to whether her deceased husband had undergone any skill training such as that of cook carpenter, mason etc. and therefore as such from the material available on record it can be safely concluded that the deceased was an unskilled labourer.
LR's of Om Prakash Vs. Gaurav Mandotia & Ors. Page 14 of32 LR's of Om Prakash Vs. Gaurav Mandotia & Ors. Page 15 of 32 11.4 In view of my foregoing discussion, it would be appropriate to assess the income of the deceased on the basis of minimum wages of an unskilled labourer. Besides, the year of birth of the deceased was mentioned as 1950 on the Aadhar Card of the deceased and the case accident had occurred on 02.04.2018, therefore, the age of the deceased at the time of occurrence of the alleged accident was 69 years and the deceased was a permanent resident of 186, J3, J.J. Colony, AShok Vihar, Ashok Vihar North West, Delhi. Therefore, the deceased is entitled to minimum wages of unskilled labourer at the relevant time as applicable on the date of occurrence of the case accident in NCT of Delhi which was Rs.13,896/ per month. Accordingly, it would be reasonable and just to consider the income of petitioner as Rs.13,896/ per month on the date of occurrence of the case accident in question, that is on 02.04.2018..
12. Addition of future prospects 12.1 In respect of entitlement of the petitioner to addition of future prospects in his income computed as per minimum wages applicable to unskilled labourer in NCT of Delhi, reference should be made to the latest Constitutional Bench Judgment of Hon'ble Supreme Court of India passed in the case of National Insurance Company Limited vs. Pranay Sethi & Ors, SLP (Civil) No. 25590 of 2014, date of decision 31.10.2017, wherein, the Hon'ble Apex Court interalia held as under:
61. In view of the aforesaid analysis, we proceed to record our conclusions:
(i).........................................................................................
(ii) .....................................................................................
(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 selfemployed or on a fixed salary, an addition LR's of Om Prakash Vs. Gaurav Mandotia & Ors. Page 15 of32 LR's of Om Prakash Vs. Gaurav Mandotia & Ors. Page 16 of 32 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 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.
(v) For the determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced herein before.
(vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment.
(vii) The age of the deceased should be the basis for applying the multiplier.
(viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and future 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. "
(.... Emphasis Supplied) 12.2 From a perusal of above cited observations made by the Hon'ble Apex Court in the decided case of National Insurance Company Limited vs. Pranay Sethi & Ors.(supra), it can be safely concluded that while computing income of victims of motor vehicular accidents, although an addition of future prospects is necessary to compensate the LR's of the victim for loss of future earning capacity due to untimely demise of the victim in a road traffic accident and the said future prospects are determined according to the age of the victim. However, the Hon'ble Apex Court was mindful of the fact that income of senior citizens was not likely to increase after the age of 60 years which is generally the age of superannuation in India, and therefore, the Hon'ble Apex Court had observed that after the age of 60 years, no addition be made to the established income of victim of a road traffic accident for the purpose of computation of loss of future earning capacity.
12.3 In the light of aforementioned opinions expressed by the Hon'ble Supreme Court of India in case of National Insurance Company Limited vs. Pranay Sethi & LR's of Om Prakash Vs. Gaurav Mandotia & Ors. Page 16 of32 LR's of Om Prakash Vs. Gaurav Mandotia & Ors. Page 17 of 32 Ors, SLP (Civil) No. 25590 of 2014, date of decision 31.10.2017, it can be safely concluded that the petitioner/LR's of the deceased are not entitled to grant of elements of future prospects of increase in his income/earning capacity in view of the fact that the petitioner was a senior citizen aged about 69 years and the income of senior citizen is not likely to increase after the age of 60 years.
12.4 The age of the deceased, as discussed above, in the present case was about 69 years and he was a self employed unskilled labourer. In view of paragraph no. 61(iv) of above said judgment of Pranay Sethi (Supra), the petitioners would not be entitled to any addition of future prospects to the established income of the deceased as he was above the age of 60 years at the time of his accident.
12.5 The annual income of petitioner is thus calculated as Rs.1,66,752/ in terms of judgment of Hon'ble Supreme Court in case of Pranay Sethi (supra).
12.6 The monthly income of the deceased is thus calculated as Rs.13,896/ (monthly income of 13,896+ future prospects nil, as deceased was senior citizen, aged about 69 years = Rs.13,896/)
13. Deduction towards personal and living expenses of the deceased:
13.1 Claimants are the mother and seven children of the deceased. PW1/ wife of the deceased deposed in her examinationinchief that all her sons and daughters were dependent upon the deceased for income and guidance. In her cross examination she has reiterated that her husband would earning Rs. 15,000/ to Rs.
20,000/ per month and 6 out of her 7 children were married at the time of accident of the deceased and only one son, namely, Hemant, aged about 40 years was not married. However, as per the Aadhar Card of Hemant his date of birth is 08.06.1989 and therefore he was about 28 years 9 months old at the time of demise of his father in the case accident. It is the admitted case of the petitioners that all the children of the deceased, except Hemant were married at the time of the case accident and therefore as such the married and major children of deceased cannot be considered to be totally financially dependent upon the deceased. Nevertheless, they are entitled to claim compensation as legal representative of the deceased in terms of trite law laid down by Hon'ble Supreme Court of India in a catena of judgments.
13.2 In the case of National Insurance Company Ltd. vs. Birender, Civil Appeal LR's of Om Prakash Vs. Gaurav Mandotia & Ors. Page 17 of32 LR's of Om Prakash Vs. Gaurav Mandotia & Ors. Page 18 of 32 No.242243 of 2020, date of judgment 13.01.2020 the Hon'ble Apex Court had granted compensation to the major sons of the deceased on the basis of loss of dependency with 9% interest from the date of filing of the claim petition till payment while observing that all the legal representative of a deceased/victim of road traffic accident had a right to apply for compensation and it would be duty of the tribunal to consider their application irrespective of the fact as to whether they were fully dependent on the income of the deceased at the relevant time or not. Relevant extract of the observations made in para No.15 of the judgment is reproduced herein below:
15. It is thus settled by now that the legal representatives of the deceased have a right to apply for compensation. Having said that, it must necessarily follow that even the major married and earning sons of the deceased being legal representatives have a right to apply for compensation and it would be the bounden duty of the Tribunal to consider the application irrespective of the fact whether the concerned legal representative was fully dependant on the deceased and not to limit the claim towards conventional heads only. The evidence on record in the present case would suggest that the claimants were working as agricultural labourers on contract basis and were earning meagre income between Rs.1,00,000/ and Rs.1,50,000/ per annum. In that sense, they were largely dependant on the earning of their mother and in fact, were staying with her, who met with an accident at the young age of 48 years.
13.3 In the light of aforecited observation made by Hon'ble Supreme Court of India in the case of National Insurance Company Ltd. vs. Birender (supra), it can be safely concluded that it is settled law that all the legal representatives of the deceased had a right to apply for compensation in respect of loss of dependency on account of demise of deceased Om Prakash in a road traffic accident and it is a duty of the tribunal to consider their claim irrespective of the fact that they were not fully dependent on the income of the deceased. However, the fact that the legal representatives of the deceased were not fully dependent on his income is of great value in determining the quatum of income which the deceased was likely to spend LR's of Om Prakash Vs. Gaurav Mandotia & Ors. Page 18 of32 LR's of Om Prakash Vs. Gaurav Mandotia & Ors. Page 19 of 32 on his personal and living expenses and as well as for determining the share of his income which he would contribute towards his household expenses. In this context, it has been time and again reiterated by Hon'ble Apex Court and various High Court that where the children/legal heirs of the deceased were major and were not financially dependent on the deceased then the deceased was likely to save more major portion of his income for personal expenses and was likely to contribute much less portion of his income towards household expenses.
13.4 Similar observations were made iby Hon'ble Apex Court in the case of National Insurance Company vs Meghji Naran Soratiya & Ors CIVIL APPEAL NO. 1171 OF 2002 decided on 26 February, 2009, wherein while dealing with the matter pertaining to demise of 58 years old mason whose income had been assessed at Rs. 27,000/ per annum, the Hon'ble Apex Court had observed that sons and daughtersinlaw of the deceased were major and therefore, the deceased was likely to utilise his 50% of income towards personal and living expenses instead of only 1/3. The relevant extracts of observations made in paras Nos. 11 and 12 of the judgement passed in this case are noteworthy in this context and are reproduced herein below:
11. The claim related to the death of a mason aged 58 years in a motor accident which occurred in the year 1991. His son and daughterinlaw were the claimants and claimed a compensation of Rs. 3 lakhs. The Tribunal after considering the evidence, held that the deceased was aged 55 to 58 years, that his income was Rs. 2,250/ per month and that he was contributing Rs.1500/ per month to the family. It however restricted the annual loss of dependency to Rs.15,000/ instead of Rs.18000/ and by applying a multiplier of 10, arrived at the loss of dependency as Rs. 1,50,000/. It awarded Rs. 15,000/ towards loss of estate, Rs. 5,000/ for funeral expenses, Rs.5,000/ towards medicines/treatment (as the deceased underwent treatment for a short period in a hospital before death). Thus it determined the compensation payable as Rs. 1,75,000/ and awarded the same with interest @ 15% per annum from the date of petition.
LR's of Om Prakash Vs. Gaurav Mandotia & Ors. Page 19 of32 LR's of Om Prakash Vs. Gaurav Mandotia & Ors. Page 20 of 32
12. The learned counsel for the appellant submitted that when there was no clear and conclusive evidence that the married son and daughterinlaw were dependent on the deceased, the Tribunal erred in restricting the deduction towards the living/personal expenses of the deceased to only onethird. He also submitted that award of Rs. 15,000/ towards loss of estate was excessive. There is some merit in the said contentions. We will therefore reassess the compensation. The Tribunal found that the income of the deceased was Rs. 2,250/ per month or Rs.27,000/ per annum. There is no serious challenge to this finding. On the facts and circumstances of the case, 50% should have been deducted towards the personal and living expenses of the deceased and not onethird. Thus, the contribution to the family (or the saving by the deceased even assuming that the claimants were fully dependant) would have been Rs. 13,500/ per annum. There is nothing wrong in the multiplier applied (that is 10) as it is in consonance with the principles laid down in General Manager, Kerala State Road Transport Corpn. v. Susamma Thomas [1994 (2) SCC 176] and U.P. State Road Transport Corpn. v. Trilok Chandra [1996 (4) SCC 362]. Therefore, the total loss of dependency would be Rs. 1,35,000/. By adding Rs.5,000/ each under the heads of loss of estate, funeral expenses and cost of treatment, the total compensation is determined as Rs. 1,50,000/.
13.5 In another decided case of New India Assurance Co. Ltd vs Vinish Jain And Ors Etc Etc SLP (C) NO(S).13931 OF 2017 and Civil Appeal No.2445/2018 decided on 23 February, 2018 pertaining to death of a 78 years old victim of RTA, the Hon'ble Apex Court had observed that 1/3 deduction towards personal and living expenses was very low in view of the fact that claimants were two major financially independent sons of the deceased and two grand daughters of the deceased who were not financially dependent upon the deceased and were rather dependent on their respective fathers. The Hon'ble Apex Court had deemed it fit to enhance the deduction towards personal and living expenses to 1/2 from 1/3 in respect of the LR's of Om Prakash Vs. Gaurav Mandotia & Ors. Page 20 of32 LR's of Om Prakash Vs. Gaurav Mandotia & Ors. Page 21 of 32 deceased. Observations made in paras nos. 7 and 8 by the Hon'ble Apex Court are noteworthy in this context and are reproduced herein below:
7. This case relates to death of one A.P. Jain. He was 78 years of age. At the time of death, his annual income was assessed at Rs.3,64,500/. The deduction made for personal expenses at 1/3 is very low keeping in view the fact that the claimants are his two major sons and two granddaughters. The major sons have their own source of income and were not dependent on the deceased and the two granddaughters are primarily dependent on their father and not on their grandfather. We are also of the view that the High Court has erred in granting Rs. 50,000/ as loss of love and affection to each of the claimants. The total compensation granted is Rs.14,39,980/ along with interest at the rate of 7.5% per annum.
8. We feel that 50% deduction is called for and if this factor is taken into consideration then the loss of dependency is Rs.1,82,250/ and if multiplier of 5 is used, the compensation works out to Rs.9,11,250/. In addition, the claimants would be entitled to Rs.70,000/ for love and affection and funeral expenses etc. as per the judgment of this Court passed in the case of Pranay Sethi (supra).
Accordingly, the amount of compensation is reduced to Rs.9,81,250/ along with interest awarded by the Tribunal.
13.6 In the light of aforesaid opinion expressed by Hon'ble Apex Court in the cases of National Insurance Company ... vs Meghji Naran Soratiya & Ors CIVIL (supra) and New India Assurance Co. Ltd vs Vinish Jain And Ors Etc (supra) it can be safely concluded that in cases where the legal representative of a deceased/victim have attained the age of majority and are not totally financially dependent upon the deceased then the deceased is likely to spare more of his income for his personal and living expenses and to contribute next towards household expenses. In the present matter, deceased Om Prakash is survived by his wife and two major son as well as five major daughters. All the children of the LR's of Om Prakash Vs. Gaurav Mandotia & Ors. Page 21 of32 LR's of Om Prakash Vs. Gaurav Mandotia & Ors. Page 22 of 32 deceased except his son Hemant were married at the time of the alleged case accident and in these circumstances the primary duty of the deceased was to provide maintenance to his wife, namely, Sheela Devi and his umarried son, namely, Hemant. Although, Hemant the only unmarried son of the deceased was also major and was aged about 28 years. However, it is the case of the petitioners that said Hemant was dependent on the income of the deceased. Despite being cross examined at length PW1 Sheela, wife of the deceased had maintained her stand to the effect that her son Hemant was dependent on the income of her deceased husband. Thus, in view of the fact that only two of the legal representative of the deceased were financially dependent upon the deceased. This court is of the opinion that 1/3 of the income of the deceased should be deducted towards his personal and living expenses and the remaining 2/3 should be considered to be his contribution towards maintenance of his wife and unmarried son Hemant.
14. Selection of multiplier:
14.1 As discussed above, the age of the deceased was about 69 years at the time of his death. In view of paragraph no. 61(vii) of the judgment in the case of Pranay Sethi (Supra), the age of deceased should be the basis for applying the multiplier.
Accordingly, the relevant multiplier in the present case would be "5" as per judgment passed in case of Sarla Verma (Supra) which has been upheld in paragraph no. 61 (vii) in case of Pranay Sethi (Supra).
15. Loss of financial dependency 15.1 In the light of aforesaid facts, loss of financial dependency of the petitioners nos. 1 and 2 comes to Rs.5,55,840/ [i.e. Rs.13,896/ (per month income of the deceased) X12 X 5 (multiplier) X 2/3 (dependency after deduction of 1/3 towards personal and living expenses of the deceased).
16. Compensation under nonpecuniary heads/conventional heads:
16.1 In view of the judgment of Constitution Bench of Hon'ble Apex Court in case of Pranay Sethi (Supra), as held in paragraph number 61 (viii) of the said judgment, the petitioners would be entitled to Rs. 15,000/ towards loss to the estate of the deceased and Rs. 15,000/ towards funeral expenses.
17. Consortium {Spousal ortium/Parental Consortium/Filial Consortium} LR's of Om Prakash Vs. Gaurav Mandotia & Ors. Page 22 of32 LR's of Om Prakash Vs. Gaurav Mandotia & Ors. Page 23 of 32
17.1 The deceased was married and is survived by wife and seven children. It is now a settled law in terms of Judgment of Hon'ble Supreme Court of India, in case of Magma General Insurance Co. Ltd vs Nanu Ram and Ors, Civil Appeal No. 9581 of 2018, date of decision 18.09.2018: 2018(8) SCJ 338:2018 SCC Online SC 1546 and the judgment of Hon'ble Delhi High Court in case of Uttrakhand Transport Corporation Vs. Jyoti Sardana, MAC.APP.920/2017, date of decision 03.04.2019 that the compensation under the head of consortium is required to be awarded to all the claimants to the tune of Rs. 40,000/ each. In the present case, there are eight claimants who are the wife and children of the deceased, hence, Rs. 3,20,000/ (Rs. 40,000/ x 8) is being granted under the said head. My views in this regard are also substantiated by the latest judgments of Hon'ble Delhi High Court in cases titled as United India Ins. Co. Ltd. Vs Manorama Aggarawal and Ors., MAC.APP. 250/2015, decided on 09.01.2020 and Om Prakash and Ors vs Ved Prakash and Anr, MAC.APP 114/2019 date of decision 28.01.2020. My views are also substantiated by the latest judgments of Hon'ble Supreme Court of India in cases titled as The New India Assurance Company Limited Vs. Smt. Somwati and Ors., Civil Appeal Nos. 30933099 of 2020, decided on 07.09.2020 and United India Insurance Company Ltd. Vs. Satinder Kaur alias Satvinder Kaur and Ors., (2020) SCC Online 410.
18. LOSS OF LOVE and AFFECTION 18.1 The Hon'ble Supreme Court of India in the latest case of The New India Assurance Company Limited Vs. Smt. Somwati and Ors., Civil Appeal Nos. 30933099 of 2020, decided on 07.09.2020 after referring to its another decision of threejudge bench in case titled as United India Insurance Company Ltd. Vs. Satinder Kaur alias Satvinder Kaur and Ors., (2020) SCC Online 410 inter alia held as follows :
"34. The ThreeJudge Bench in the above case approved the comprehensive interpretation given to the expression 'consortium' to include spousal consortium, parental consortium as well as filial consortium. ThreeJudge Bench however further laid down that 'loss of love and affection' is comprehended in 'loss of consortium', hence, there is no justification to award compensation towards 'loss of love and affection' as a separate head.
35. The Constitution Bench in Pranay Sethi has also LR's of Om Prakash Vs. Gaurav Mandotia & Ors. Page 23 of32 LR's of Om Prakash Vs. Gaurav Mandotia & Ors. Page 24 of 32 not under conventional head included any compensation towards 'loss of love and affection' which have been now further reiterated by threeJudge Bench in United India Insurance Company Ltd. (supra). It is thus now authoritatively well settled that no compensation can be awarded under the head 'loss of love and affection'.
......................................................................................... ......................................................................................... .........................................................................................
47. In result, all the appeals are partly allowed. The award of compensation under the conventional head 'loss of love and affection' is set aside........................"
18.2 In view of the abovesaid discussion and the latest judgments of Hon'ble Supreme Court of India in the cases of The New India Assurance Company Limited Vs. Smt. Somwati and Ors., Civil Appeal Nos. 30933099 of 2020, decided on 07.09.2020 and United India Insurance Company Ltd. Vs. Satinder Kaur alias Satvinder Kaur and Ors., (2020) SCC Online 410, no amount of compensation can be awarded under the said head of 'loss of love and affection'. Hence, no amount is being granted under the said head.
19. Petitioners/claimants are accordingly entitled to compensation computed as under:
Loss of financial dependency Rs. 5,55,840
Loss of Estate Rs. 15,000/
Funeral Expenses Rs. 15,000/
Loss of Consortium Rs. 3,20,000/
Loss of Love and Affection Nil.
________________
Total Rs. 9,05,840/
________________
[Rounded off to Rs. 9,05,840/]
(Rupees Nine Lacs Five Thousand Eight Hundred and Forty only). 19.1 In respect of entitlement of the petitioner to interest on the awarded amount, it is noteworthy that the Hon'ble Apex Court had in the case of Municipal Corporation of Delhi vs. Association of Victims of Uphaar Tragedy, 2012 ACJ 48 (SC) had observed that the victims of Uphaar Tragedy be awarded compensation with interest @ 9% per annum. The present matter is pending trial since 22.05.2018 and the rate of interest of fixed deposits in Nationalized banks has fluctuated/dropped several times during the pendency of the present proceedings.
LR's of Om Prakash Vs. Gaurav Mandotia & Ors. Page 24 of32 LR's of Om Prakash Vs. Gaurav Mandotia & Ors. Page 25 of 32 Therefore, in the interest of justice, in the present case, this court is of the opinion that the claimant/petitioner is entitled to interest at the prevailing bank rate of 6% per annum from the date of filing of DAR/petition, that is, with effect from 22.05.2018 till realisation of the compensation amount.
19.2 The amount of interim award, if any, shall however be deducted from the above amount, if the same has already been paid to the petitioner.
20. Liability 20.1 In the case in hand, the Oriental Insurance Co./R2 has not been able to show anything on record to the effect that R1 who was the driver of the offending vehicle was not having any valid driving licence to drive the offending vehicle. As per settled law, since the offending vehicle was duly insured with the insurance company/R2, hence, R2 is liable to pay the entire compensation amount to the petitioners as per law.
20.2 Accordingly, in the case in hand, in terms of order dated 16.05.2017 of Hon'ble High Court by Hon'ble Mr. Justice J.R. Midha in case of Rajesh Tyagi Vs. Jaibir Singh and Ors., Oriental Insurance Co./R2 is directed to deposit the awarded amount of Rs.9,05,840/ within 30 days from today within the jurisdiction of this Tribunal at State Bank of India, Rohini Courts Branch, Delhi along with interest at the rate of 6% per annum from the date of filing of the petition/DAR till notice of deposition of the awarded amount to be given by R2 to the petitioners and their advocates and to show or deposit the receipt of the acknowledgement with the Nazir as per rules. R2 is further directed to deposit the awarded amount in the above said bank by means of cheque drawn in the name of above said bank along with the name of the claimants mentioned therein. The said bank is further directed to keep the said amount in fixed deposit in its own name till the claimants approach the bank for disbursement, so that the awarded amount starts earning interest from the date of clearance of the cheque.
APPORTIONMENT
21. The court record would show that Smt. Rekha, Smt. Yashu, Smt. Mamta, Smt. Neelam, Smt. Bharti Singh and Sh. Jitender have given their NOC in favour of petitioner no.1, namely, Smt. Sheela Devi vide separate affidavits filed by them in this regard whereby they have relinquished their share of compensation in favour of their mother Smt. Sheela Devi, petitioner LR's of Om Prakash Vs. Gaurav Mandotia & Ors. Page 25 of32 LR's of Om Prakash Vs. Gaurav Mandotia & Ors. Page 26 of 32 no.1. Even otherwise, the above named six legal representatives of the deceased were all married and financially independent as on the date of occurrence of the case accident and therefore as such they were not fully dependent on the income of the deceased. Apart from his wife Sheela Devi one of the son of the deceased Om Prakash can be deemed to be financially dependent on the deceased as the said son of the deceased, namely, Hemant was unmarried and was living with his mother Sheela Devi at the time of occurred of the case accident. Moreover, no suggestion has been given to petitioner Sheela Devi in her crossexamination to the effect that her son Hemant was financially independent and was not a dependent of his deceased father at the time of occurrence of the case accident. Joint statement of petitioner no. 1 and 2 in terms of clause 29 MCTAP was recorded on 19.02.2020 regarding their savings bank a/c with endorsement of MACT Claims SB A/c.
21.1 In respect of disbursal of award amount amongst the legal heirs of the deceased, it has been submitted by the learned counsel for the petitioners that the entire award amount be disbursed in favour of widow of the deceased, that is, petitioner No.1 Smt. Sheela Devi and few amount may be released in favour of petitioner No.2 Sh. Hemant, who is unmarried son of the deceased. Accordingly, the award amount is apportioned as under:
21.2 Joint statement of petitioners in terms of clause 29 MCTAP was recorded on 19.02.2020 regarding their savings bank a/c with no loan, cheque book and ATM/debit card. I have heard the petitioners and learned counsel for the petitioners/claimants regarding financial needs of the petitioners and in view of the judgment in the case of General Manager, Kerala State Road Transport Corporation Vs. Susamma Thomas and Others, 1994 (2) SC, 1631, for appropriate investments to safeguard the amount from being frittered away by the beneficiaries owing to their ignorance, illiteracy and being susceptible to exploitation, following arrangements are hereby ordered: 21.3 It is deemed appropriate by this court after hearing learned counsels for all parties that maximum amount of compensation be kept in LR's of Om Prakash Vs. Gaurav Mandotia & Ors. Page 26 of32 LR's of Om Prakash Vs. Gaurav Mandotia & Ors. Page 27 of 32 FDRs and only a very small amount be released to the claimants. Keeping in view the facts and circumstances of the case, the statements made by the petitioners, it is hereby directed that on realization of the entire award amount, an amount of Rs.7,05,840/ be given to Smt. Sheela Devi(wife of deceased victim in the case accident) and Rs. 1,00,000/ be given to Sh. Hemant, who is son of the deceased. Out of the amount of Rs. 7,05,840/, an amount of Rs. 1,05,840/ be released to Smt. Sheela Devi and remaining amount be kept in 60 FDRs of equal amount for a period of one month to 60 months respectively with cumulative interest without the facility of advance, loan and premature withdrawal without the prior permission of the Tribunal. 21.4 An amount of Rs. 50,000/ be released to Sh. Hemant in his bank account and remaining amount be kept in 15 FDRs of equal amount for a period of one month to 15 months respectively with cumulative interest without the facility of advance, loan and premature withdrawal without the prior permission of the Tribunal.
21.5 It shall be subject to the following further conditions and directions in terms of order dated 07.12.2018 of Hon'ble Mr. Justice J.R. Midha in case of Rajesh Tyagi vs Jaibir Singh, FAO 842/2003 with respect to fixed deposits :
(a) The bank shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the victim i.e. the saving bank account(s) of the claimant(s) shall be individual savings account(s) and not a joint account(s).
(b) The original fixed deposit shall be retained by the bank in safe custody. However, the statement containing FDR number, FDR amount, date of maturity and maturity amount shall be furnished by bank to the claimant(s).
(c) The monthly interest be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant/(s) near the place of their residence.
LR's of Om Prakash Vs. Gaurav Mandotia & Ors. Page 27 of32 LR's of Om Prakash Vs. Gaurav Mandotia & Ors. Page 28 of 32
(d) The maturity amount of the FDR(s) be credited by Electronic Clearing System (ECS) in the saving bank account of the claimant(s) near the place of their residence i.e. above said a/c.
(e) No loan, advance or withdrawal or premature discharge be allowed on the fixed deposits without permission of the court.
(f) The concerned Bank shall not to issue any cheque book and/or debit card to claimant(s). However, in case the debit card and/or cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount. The bank shall debit card(s) freeze the account of the claimant(s) so that no debit card be issued in respect of the account of the claimant(s) from any other branch of the bank.
(g) The bank shall make an endorsement on the passbook of the claimant(s) to the effect, that no cheque book and/or debit card have been issued and shall not be issued without the permission of the court and claimant(s) shall produce the passbook with the necessary endorsement before the court on the next date fixed for compliance.
(h) It is clarified that the endorsement made by the bank along with the duly signed and stamped by the bank official on the pass book(s) of the claimant(s) is sufficient compliance of clause (g) above.
22. Relief 22.1 As discussed above, R2 is directed to deposit the award amount of Rs.9,05,840/ with interest @ 6% per annum from the date of filing of DAR/petition, that is, 22.05.2018 till realization within the jurisdiction of this Tribunal at SBI , Rohini Court Branch, Delhi within 30 days from today under intimation of deposition of the awarded amount to be given by R2 to the petitioner and his advocate failing which the R2 shall be liable to pay interest @ 9% per annum from the period of delay beyond 30 days.
22.2 R2 is also directed to place on record the proof of deposit of the award amount, proof of delivery of notice in respect of deposit of the award amount in the above said bank to the claimants and complete details in LR's of Om Prakash Vs. Gaurav Mandotia & Ors. Page 28 of32 LR's of Om Prakash Vs. Gaurav Mandotia & Ors. Page 29 of 32 respect of calculations of interest etc in the court within 30 days from today. 22.3 A copy of this judgment/award be sent to respondent no.2 for compliance within the granted time.
22.4 Nazir is directed to place a report on record in the event of non receipt/deposit of the compensation amount within the granted time.
In terms of directions contained in the order dated 07.12.2018 and subsequent order dated 22.02.2019 of Hon'ble Mr. Justice J.R. Midha in the case of Rajesh Tyagi and Ors vs Jaibir Singh and Ors., FAO 842/2003, the copy of the award be also sent by the Ahlmad of the court to Mr. Rajan Singh, Assistant General Manager, State Bank of India (as per the list of nodal officers of 21 banks of Indian Bank's Association as circulated to the Motor Accident Claims Tribunal vide above mentioned order dated 22.02.2019 of Hon'ble Delhi High Court) who is the Nodal Officer with contact details (02222741336/9414048606) {other details th Personal Banking Business Unit (LIMA) 13 Floor, State Bank Bhawan, Madame Cama Road, Nariman Point, Mumbai400021} through email ([email protected]) through the computer branch of Rohini Courts, Delhi. Ahlmad of the court is directed to take immediate steps in that regard.
22.5 A copy of this award be forwarded to the concerned Metropolitan Magistrate and DLSA in terms of the orders passed by the Hon'ble High Court in FAO 842/2003 Rajesh Tyagi Vs. Jaibir Singh and Ors. vide order dated 12.12.2014.
A copy of this award be forwarded to the concerned Metropolitan Magistrate and DLSA in terms of the orders passed by the Hon'ble High Court in FAO 842/2003 Rajesh Tyagi Vs. Jaibir Singh & Ors. vide order dated 12.12.2014.
In view of the directions contained in order dated 18.01.2018 of Hon'ble Mr. Justice J.R. Midha in FAO no. 842/2003 titled as Rajesh Tyagi vs Jaibir Singh, joint statement of petitioners was also recorded LR's of Om Prakash Vs. Gaurav Mandotia & Ors. Page 29 of32 LR's of Om Prakash Vs. Gaurav Mandotia & Ors. Page 30 of 32 on 19.02.2020 wherein they have stated that claimants were entitled to exemption from deduction of TDS and that they would submit form 15G to insurance co. so that no TDS is deducted.
23. Form IVA which has been duly filled in has also been attached herewith. File be consigned to record room as per rules after compliance of necessary legal formalities. However, separate miscellaneous file be prepared for compliance of award in terms of clause 34 of MCTAP which is to be put up by Nazir of the tribunal alongwith his report on 29.03.2022. Copy of order be given to parties for necessary compliance as per rules.
Announced in open court (JASJEET KAUR)
on 28th February, 2022 PO MACT N/W
Rohini Courts, Delhi.
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LR's of Om Prakash Vs. Gaurav Mandotia & Ors. Page 31 of 32
FORM - IV A
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN DEATH CASES
TO BE INCORPORATED IN THE AWARD
1. Date of accident : 02.04.2018
2. Name of deceased: Sh. Om Prakash
3. Age of the deceased: About 69 years at the time of accident.
4. Occupation of the deceased: Self employed.
5. Income of the deceased: Rs.13,896/ per month
6. Name, age and relationship of legal representatives of deceased:
S.No. Name Age Relation
(i) Smt. Sheela Devi years Wife
(ii) Sh. Hemant years Son
Computation of Compensation
S.No. Heads Awarded by the Claims
Tribunal
7. Income of the deceased (A) Rs. 13,896/ (as per minimum
wages of unskilled labourer)
8. AddFuture Prospects (B) Nil.
9. LessPersonal expenses of the 1/3th
deceased (C )
10. Monthly loss of dependency Rs.9,264/
{ (A+B) - C =D}
11. Annual loss of dependency (Dx12) Rs. 1,11,168//
12. Multiplier (E) 5
13. Total loss of dependency (Dx12xE Rs. 5,55,840/
= F)
14. Medical Expenses (G) Nil
15. Compensation for loss of love and Nil
affection (H)
16. Compensation for loss of Rs. 3,20,000/ (40,000x8)
consortium (I)
17. Compensation for loss of estate (J) Rs. 15,000/
18. Compensation towards funeral Rs. 15,000/
expenses (K)
19. TOTAL COMPENSATION Rs. 9,05,840/
(F+G+H+I+J+K =L)
20. RATE OF INTEREST AWARDED 6%
21 Interest amount up to the date of Rs.2,04,711/
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LR's of Om Prakash Vs. Gaurav Mandotia & Ors. Page 32 of 32
award (M)
22. Total amount including interest Rs. 11,10,551/
(L+M)
23. Award amount released Rs.1,50,000/ to the
petitioners.
24. Award amount kept in FDRs Rs. 9,60,551/
25. Mode of disbursement of the award As per award and in terms amount to the claimant (s) (Clause of clause 29 of MCTAP.
29)
26. Next date for compliance of the award. (Clause 31) Announced in open court (JASJEET KAUR) th on 28 February, 2021 PO MACT N/W Rohini Courts, Delhi.
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