Delhi District Court
Rita Devi vs Harishchander on 14 September, 2022
IN THE COURT OF JAGDISH KUMAR: PO:MACT02 (SOUTH
WEST): DWARKA COURTS: NEW DELHI
MACT No. 56/2016
FIR No. 1088/2014
PS: Najafgarh
1. Rita Devi
W/o Sh. Jairam Paswan
2. Jairam Paswan
S/o Sh. Sadhu Paswan
All R/o: H.No. RZD64, Jai Vihar Phase1,
Najafgarh, Delhi 110043.
....Petitioners
VERSUS
1. Harishchander
S/o Sh. Ganga Parsad
R/o H. No. 44, Nanagli Sakrawati Near Ram
Mandir Najafgarh Delhi.
2. Sudhbir
S/o Sh. Hazari Lal
R/o Village: Sohna Gurgaon Haryana
3. Shriram General Insurance Ltd.
10003E8, Riico, Industrial Area,
Sitapur, Jaipur Rajasthan.
....Respondents
DATE OF INSTITUTION : 02.03.2015
JUDGMENT RESERVED ON : 12.09.2022
DATE OF AWARD : 14.09.2022
MACT No. 56/2016 Rita Devi & Anr. Vs. Harishchander & Ors. Page No. 1 of 13
FORM - IV A
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN DEATH CASES
TO BE INCORPORATED IN THE AWARD
1. Date of accident: 21.11.2014
2. Name of deceased: Roshini
3. Age of the deceased: 07
4. Occupation of the deceased: Student
5. Income of the deceased: N/A
6. Name, age and relationship of legal representatives of deceased:
S.No. Name Age Relation
(i) Smt Rita Devi 46 years Father
(ii) Sh Jai Ram Paswan 52 years Mother
Computation of Compensation
S.No. Heads Awarded by the Claims Tribunal
7. Income of the deceased (A) Compensation is awarded as per
judgment in Chetan Malhotra Vs.
Lala Ram etc. MAC App.
no.554/2010 etc.
8. AddFuture Prospects (B) As per above judgment
9. LessPersonal expenses of the deceased (C) do
10. Monthly loss of dependency do
{ (A+B) - C =D}
11. Annual loss of dependency (Dx12) do
12. Multiplier (E) 10
13. Total loss of dependency (Dx12xE = F) (as discussed in para no.14)
14. Medical Expenses (G) Nil
15. Compensation for loss of love and affection As per above judgment
(H)
16. Compensation for loss of consortium (I) do
17. Compensation for loss of estate (J) do
18. Compensation towards funeral expenses (K) do
19. TOTAL COMPENSATION Rs. Rs.5,74,000/.
(F+G+H+I+J+K =L)
20. RATE OF INTEREST AWARDED 9% per annum
21 Interest amount up to the date of 3,91,800/-
compliance (M)
MACT No. 56/2016 Rita Devi & Anr. Vs. Harishchander & Ors. Page No. 2 of 13
22. Total amount including interest (L+M) Rs. 9,65,800/ from the date of
filing of the petition till the date of
compliance.
23. Award amount released 40%
24. Award amount kept in FDRs 60%
25. Mode of disbursement of the award amount NEFT/RTGS
to the claimant (s) (Clause 29)
26. Next date for compliance of the award. 13.10.2022
(Clause 31)
FORM - V
COMPLIANCE OF THE PROVISIONS OF THE MODIFIED CLAIMS TRIBUNAL
AGREED PROCEXDURE TO BE MENTIONED IN THE AWARD
1. Date of the accident 21.11.2014
2. Date of intimation of the accident by the investigating Accident occurred in Delhi
officer to the Claims Tribunal (Clause 2)
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. before do
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 16) do
9. If not, whether deficiencies in the DAR removed later on? do
10. Whether the police has verified the documents filed with do
DAR? (Clause 4)
11. Whether there was any delay or deficiency on the part of do
the Investigating Officer? If so, whether any
action/direction warranted?
12. Date of appointment of the Designated Officer by the do
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 do
Company submitted his report within 30 days of the
DAR? (Clause 20)
15. Whether the insurance company admitted the liability? If do
MACT No. 56/2016 Rita Devi & Anr. Vs. Harishchander & Ors. Page No. 3 of 13
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 of do
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
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 open 26.07.2018
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 of 25.03.2022
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) H.No. RZD64, Jai
(Clause 27) Vihar Phase1,
Najafgarh, Delhi
110043.
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) Punjab National Bank , Nai
Bazar, District Gaya, Biar
having no.
174100010014924
Petitioner no. 2:
Union Bank of India,
Najafgarh,Branch Delhi
having
no.697502010013983
.
25. Whether the claimant(s) saving bank account(s) is near Yes his place of residence? (Clause 27) MACT No. 56/2016 Rita Devi & Anr. Vs. Harishchander & Ors. Page No. 4 of 13
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 SBI, Dwarka Courts, branch of the bank of the Claims Tribunal in which the Sector10 Branch in the award amount is to be deposited/transferred Account No. 37665510911 of 'MACT (SouthWest) Dwarka Courts, New Delhi.
IFSC Code SBIN0011566
and MICR Code
110002483
AWARD
1. As per the facts of the present case, on 21.11.2014 at 08:00 am Shri Pintu Paswan along with his younger sister Roshni aged 7 years were going on a motorcycle No. DL10 SA5471 to drop her to her school. And when they reached at Shamshan Ghat Nagli Sakrawati near Bijli Pole No. 285, in the meanwhile a truck bearing No. HR569608 (Truck), which was being driven by its driver at a very high speed in a rash and negligent manner without taking necessary precautions, without proper lookouts, violating the traffic rules and without blowing any horn came from back side and hit the motorcycle with a great force. As a result of this they fell down on the road and Baby Roshni sustained fatal injury. She was immediately taken to Rao Tula Ram Memorial, Hospital Jaffar Pur Delhi, where Baby Roshni was declared as brought dead.
2. Harishchander, the driver was impleaded as respondent no. 1 in the present case, Sudhbir, owner of the offending vehicle, was impleaded as respondent no. 2 in the present case and the said vehicle was MACT No. 56/2016 Rita Devi & Anr. Vs. Harishchander & Ors. Page No. 5 of 13 insured with Shriram General Insurance Ltd. it was impleaded as respondent no. 3 in the present case. By the present case, the petitioners are claiming a sum of Rs. 15,00,000/ (Rupees Fifteen Lakhs Only) from respondents along with interest @ 12% and an interim award of Rs. 50,000/ along with interest @ 12% p.a..
3. Respondents contested the claim.
4. Respondent no. 3 in a written statement had submitted that the amount of compensation of Rs. 15,00,000/ claimed by the petitioners is very excessive, exorbitant and as such the claim petition is liable to be dismissed. Since no intimate, as required u/s 134 (c) of The Motor Vehicles Act, was ever given to respondent no, 3 of alleged accident involving vehicle no. HR569608 as such the claim petition is liable to be dismissed on this ground alone. The alleged accident occurred due to sole negligence of Sh. Pintu Paswan who himself was negligent while driving the motorcycle on the road. Thus the answering respondent is not liable to pay any amount of compensation. The defence is also taken by R.3 that the petition is false, frivolous and the same has been based on concocted facts and has been filed with a view to extort money and as such the same is liable to be dismissed with costs.
5. After completion of the proceedings, issues were framed on 11.07.2016:
1. Whether Roshni sustained fatal injuries in a motor vehicle accident dtd. 21.11.2014 due to use and involvement of vehicle (Truck) no. HR MACT No. 56/2016 Rita Devi & Anr. Vs. Harishchander & Ors. Page No. 6 of 13 56 9608 by R1? ...OPP
2. Whether the petitioners are entitled to claim compensation , if so , what amount and from whom? ...OPP
3. Relief.
6. In order to prove their claim, petitioners have examined Smt. Rita Devi as PW1 and Sh. Pintu Paswan as PW2.
7. The respondent no. 3 has examined Sh. Rama Raman, Legal Officer of Shri Ram General Insurance Company Ltd. with its Branch Office at Karol Bagh, New Delhi as R3W1. The Respondent no.3 has admitted the fact that the offending vehicle was insured with the respondent No.3 at the relevant time in the name of Sudhir . It is stated that R2 has violated the terms and condition of insurance policy and allowed R.1 to drive the offending vehicle without permit and valid driving licence.
8. I have heard ld. counsels appearing on behalf of petitioners and respondents. My issuewise findings are as under:
9. ISSUE No. 1. Whether Roshni sustained fatal injuries in a motor vehicle accident dtd. 21.11.2014 due to use and involvement of vehicle (Truck) no. HR 56 9608 by R1? ...OPP
10. To prove their case petitioner No.1 examined herself as PW1 she has reiterated the facts of their claim petition. PW2 Sh Pintu Paswan was an eye witness to the accident. He has deposed that he was going on a motorcycle No. DL10 SA5471 to drop the deceased to her school and when they reached at Shamshan Ghat Nagli Sakrawati near Bijli MACT No. 56/2016 Rita Devi & Anr. Vs. Harishchander & Ors. Page No. 7 of 13 Pole No. 285, the offending truck No. HR569608 (Truck) which was being driven by its driver at a very high speed in a rash and negligent manner and without blowing any horn came from back side and hit the motorcycle with a great force. As a result of this he alongwith deceased fell down on the road deceased sustained fatal injury. So in in view of the statement of PW2 coupled with the criminal investigation record placed on file. Prima facie it has been proved on record that deceased has died in a road accident.
So the testimony with respect to accident and rash & negligent driving the offending vehicle by respondent no.1 could not be impeached.
11. As far as rash and negligent driving is concerned, the proof of negligence while disposing off a claim under MACT, is not that strict as it is under Section 279/304A of IPC. The fact that Roshni died in that accident is duly supported by his postmortem report on the dead body of victim. After investigation, police indicted respondent no.1 as accused for offences punishable under Sections 279/304A of IPC. The FIR has been registered against respondent no.1 and he has not approached the higher authority claiming his false implication. Considering all the evidence as discussed above, it stands proved on the basis of preponderance of probability that that accident in question was caused due to rash or negligent driving of (Truck) vehicle no. HR 56 9608 by respondent no.1 thereby causing death of Roshni.
12. It is not disputed during arguments that petitioners are not LR's of MACT No. 56/2016 Rita Devi & Anr. Vs. Harishchander & Ors. Page No. 8 of 13 victim, hence, petitioners are well within their rights to claim compensation from respondents being parents. Therefore both the petitioners are entitled for the compensation. ISSUE NO.2 Whether the petitioners are entitled to claim compensation , if so , what amount and from whom? ...OPP
13. Now come to the extent of compensation. According to PWs victim was 7 years of age at the time of accident. As per copy of postmortem report, the deceased was 7 years of age at the time of accident. Admittedly, being student, the victim had no income of her own. Schedule II annexed with Section 163A of The Motor Vehicles Act, provides for notional income of such person, as Rs.15,000/ P.A. Due to lapse of lot of time, this provision has become inadequate. The High Court of Delhi while disposing of 16 appeals through a single judgment titled as Chetan Malhotra Vs. Lala Ram etc. MAC APP. No. 554/2010 etc. decided on 13.05.2016, envisaged a formula called as "inflation correction method", taking financial year of 199798 as base year. Figure of Rs. 15,000/ represents the notional income, specified in Second Schedule 'A' represents CII for the financial year, in which victim died and figure 331 represents the CII for the base year.
14. There is no evidence about the academic record of child. The death had occurred on 21.11.2014 and therefore, CII for the financial year 20142015 ( i.e939) would apply. As the age of the deceased child was 7 years, calculation has to be made on the multiplier of 10. The MACT No. 56/2016 Rita Devi & Anr. Vs. Harishchander & Ors. Page No. 9 of 13 inflationcorrected notional income comes to (15,000 x 939/ 331) Rs.42,552/ ( Round of Rs 43,000/) (43,000/ / 2/3x10)= Rs.2,86,666/( round of 2,87,000/)Adding a Similar amount of Rs.2,87,000/ is granted to petitioners as nonpecuniary damages, including future prospect of victim, the total amount of compensation awarded in this case shall be Rs.5,74,000/.
15. This issue is therefore decided in favour of the petitioners and against respondents by holding that the petitioners are entitled for compensation from respondents.
16. Respondent no.3 is the insurance company and has contended that it is not liable to pay any compensation as the driver of the offending vehicle was driving without permit and valid license and in any case, recovery rights be granted to the insurance company.
17. The respondent no.3 has examined Sh Rama Raman as R3W1 who deposed in his affidavit that notice under Order 12 Rule 8 of CPC was sent to the respondent no. 2 . The notice U/o 12 rule 8 CPC is as Ex. R3W1/3 and postal receipts as Ex. R3W1/4. R3W1 has deposed that as per the documents available with the insurance company the driver was not holding valid permit and driving licence at the time of accident. Accordingly, the insurance company has been able to prove that the insured vehicle was being driven by its driver without having a valid permit and driving licence and it is entitled to recovery rights. Since the vehicle was duly insured, respondent no.3 is thus primarily liable to pay amount of compensation to petitioner. For all this reason, MACT No. 56/2016 Rita Devi & Anr. Vs. Harishchander & Ors. Page No. 10 of 13 respondent no.3 is held entitled to recover the amount of compensation from owner/driver but after making due payment to the petitioner.
18. This issue is therefore decided in favour of the petitioners and against respondents by holding that petitioners are entitled to compensation from respondents.
ISSUE NO.3 ( RELIEF)
19. Petition in hands is allowed. Respondents no. 3 is directed to pay Rs. 9,65,800/ (inclusive of interest @ 9% p.a. from 02.03.2015 till 13.10.2022 (Date of compliance), in the ratio of 50:50 to the petitioners as compensation in this case, within 30 days from today. Out of the awarded amount 40% be released in equal share to both the petitioners ie 20% each of the total awarded amount and 60% of the awarded amount be kept in the form of FDRs in equal shares to both the petitioners ie 30% each of the total awarded amount. The awarded compensation amount shall remain as tax free.
20. Considering the circumstances, the amount be distributed among the petitioners no. 1 and 2 as follows:
S.No. Name of Age ( yrs Relation Amount Amount to be Amount kept Period of Mode:-
petitioners/claima with awarded released in FDR FDR Cash/cheque nt injured/dec /DD eased
1. Rita Devi 46 yrs Mother 4,82,900/- 1,93,160/- 2,89,740/- 60 monthly NEFT/RTGS FDR's of equal amount each for a MACT No. 56/2016 Rita Devi & Anr. Vs. Harishchander & Ors. Page No. 11 of 13 period of one month to 60 months in succession with cumulative interest .
2 Jai Ram 52 yrs Father 4,82,900/- 1,93,160/- 2,89,740/- 60 monthly NEFT/RTGS
Paswan
FDR's of
equal
amount
each for a
period of
one month
to 60
months in
succession
with
cumulative
interest .
Total Rs.9,65,800/- Rs.3,86,320/- Rs.5,79,480/-
21. The salient features as prescribed in the judgment in Rajesh Tyagi Vs. Jaibir Singh FAO No. 842/2009 decided on 16.12.2009 are to be applied:
MACT No. 56/2016 Rita Devi & Anr. Vs. Harishchander & Ors. Page No. 12 of 13
(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 MACAD.
(v) The original fixed deposit/MACAD 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.
22. Respondent no. 3 is directed to deposit entire amount of compensation with this tribunal, within 30 days from today, with advance notice to petitioner.
File be consigned to record room.
ANNOUNCED IN THE OPEN ( JAGDISH KUMAR )
COURT ON 14.09.2022 PO, MACT02 SOUTH
DWARKA, NEW DELHI
MACT No. 56/2016 Rita Devi & Anr. Vs. Harishchander & Ors. Page No. 13 of 13