Delhi District Court
(4) Sh. Babloo vs (1). Sh. Bupender Singh (Owner) on 25 January, 2021
IN THE COURT OF SH. MUKESH KUMAR GUPTA:
ADDITIONAL DISTRICT JUDGE -1 + MOTOR ACCIDENT CLAIM
TRIBUNAL (NW) ROHINI COURTS: DELHI
_____________________________________________________________
UID No./CNR No. DLNW01-0039042017
MACT CASE No. 217/19/17
Deceased: Ramdhani, Aged about-60 years.
In Re :
(1). Smt. Durgawanti (Wife )
W/o Late Sh. Ram Dhani,
R/o F-2/272, Mangol Puri, Delhi
(2). Smt. Mamta, ( Married Daughter)
W/o Sh. Sandeep Choursiya
D/o Late Sh. Ram Dhani
R/o Chak Dedvani, Bairadih Uf Gambhirpur,
Azamgarh, Gambirpur, U.P.
(3) Smt. Nisha, ( Married Daughter)
W/o Sh. Anil,
D/o Late Sh.Ram Dhani,
R/o Gram Molanapur,
post ambarpur,Azamgarh, U.P.
(4) Sh. Babloo, (Married son)
S/o Late Sh. Ram Dhani,
R/o F-271-272, Mangol Puri, Delhi
.........Petitioners
Vs.
(1). Sh. Bupender Singh (Owner)
S/o Sh. Baldev Singh,
R/o B-93, A Block, Swroop Nagar, Delhi
..........Respondent
Date of filing of the DAR : 20.04.2017
First date before the undersigned : 18.04.2019
Date of Arguments : 23.01.2021
Date of Decision : 25.01.2021
MACT No. 217/19/17 Durgawanti Vs. Bhupender Singh & Ors. Page No.1/28
APPEARANCE (S): Sh. Sanjay Rana, Advocate, Ld. Counsel for petitioner.
Sh. Manmeet Maini, Advocate, Ld. Counsel for respondent.
FORM - V COMPLIANCE OF THE PROVISIONS OF THE MODIFIED CLAIMS TRIBUNAL AGREED PROCEDURE (EFFECTIVE W.E.F. 01.01.2019) TO BE MENTIONED IN THE AWARD AS PER FORMAT REFERRED VIDE ORDER DATED 07.12.2018 PASSED BY THE HON'BLE HIGH COURT IN FAO 842/2003 RAJESH TYAGI VS. JAIBIR SINGH & ORS.
1. Date of the accident 08.10.2016
2. Date of intimation of the accident by the The offending vehicel investigating officer to the Claims was not insured at the Tribunal. time of the accident.
3. Date of intimation of the accident by the The offending vehicle investigating officer to the insurance was not insured at the company. time of the accident.
4. Date of filing of Report under section _____ 173 Cr.P.C. before the Metropolitan Magistrate.
5. Date of filing of Detailed Accident The offending vehicle Information Report (DAR) by the was not insured at the investigating Officer before Claims time of the accident. Tribunal.
6. Date of Service of DAR on the Insurance The offending vehicle Company. was not insured at the time of the accident.
7. Date of service of DAR on the 20.04.2017 claimant(s).
8. Whether DAR was complete in all Yes respects?
9. If not, whether deficiencies in the DAR ___ removed later on?
10. Whether the police has verified the Yes documents filed with DAR?
11. Whether there was any delay or No deficiency on the part of the MACT No. 217/19/17 Durgawanti Vs. Bhupender Singh & Ors. Page No.2/28 Investigating Officer? If so, whether any action/direction warranted?
12. Date of appointment of the Designated The offending vehicle Officer by the insurance Company. was not insured at the time of the accident.
13. Name, address and contact number of The offending vehicle the Designated Officer of the Insurance was not insured at the Company. time of the accident.
14. Whether the designated Officer of the The offending vehicle Insurance Company submitted his was not insured at the report within 30 days of the DAR? time of the accident. (Clause 22)
15. Whether the insurance company The offending vehicle admitted the liability? If so, whether the was not insured at the Designated Officer of the insurance time of the accident.
company fairly computed the
compensation in accordance with law.
16. Whether there was any delay or The offending vehicle
deficiency on the part of the Designated was not insured at the Officer of the Insurance Company? If so, time of the accident. whether any action/direction warranted?
17. Date of response of the claimant (s) to The offending vehicle the offer of the Insurance Company. was not insured at the time of the accident.
18. Date of the Award. 25.01.2021
19. Whether the award was passed with the No consent of the parties?
20. Whether the claimant(s) were directed to Yes open saving bank account(s) near their place of residence?
21. Date of order by which claimant(s) were directed to 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.
MACT No. 217/19/17 Durgawanti Vs. Bhupender Singh & Ors. Page No.3/2822. Date on which the claimant (s) produced the passbook of their saving bank Examination of account near the place of their petitioners to ascertain residence along with the endorsement, their financial PAN Card and Aadhar Card? condition/needs, mode of disbursement and amount to be kept in fixed deposits in terms of clause 26 (now clause 29 of MCTAP) could not be recorded for want of requisite documents and due to pandemic Covid-
19. The petitioners have failed to furnish the requisite documents in terms of clause 29 of MCTAP despite directions being given vide order dated 09.05.2019. In these circumstances and in view of the clause 29 of MCTAP, the disbursement is withheld. The Branch Manager concerned shall not release any amount to the petitioner unless compliance of clause 29 of MCTAP is made.
23. Permanent Residential Address of the As mentioned above. Claimant(s).
24. Details of saving bank account(s) of the claimant(s) and the address of the bank with IFSC Code.
25. Whether the claimant(s) saving bank Yes account(s) is near his place of residence?
MACT No. 217/19/17 Durgawanti Vs. Bhupender Singh & Ors. Page No.4/2826. Whether the claimant(s) were examined Yes at the time of passing of the award to ascertain his/their financial condition.
27. Account number, MICR number, IFSC State Bank of India, Code, name and branch of the bank of Rohini Courts, Delhi. the Claims Tribunal in which the award IFSC code no. amount is to be deposited/transferred. SBIN0010323.
MACT No. 217/19/17 Durgawanti Vs. Bhupender Singh & Ors. Page No.5/28JUDGMENT / AWARD:-
1. By way of present judgment/award, I shall conscientiously dispose of the DAR/filed by the investigating agency which has been converted into a claim petition under section 166(4) of M. V. Act 1988 for grant of compensation.
2. The brief material facts relevant to decide the present claim petition as averred are that on 08.10.2016 at about 05:30 a.m., deceased Ram Dhani along-with his nephew Sh. Kapil was going on morning walk and when they reached at Radhey Shyam Park, Mangol Puri, Delhi, suddenly one motorcycle bearing no. DL-8SBE-2863 which was being driven by its driver (unknown) in a rash and negligent manner hit the deceased from behind and fled away after leaving the motorcycle on spot. As a result, deceased Ram Dhani sustained serious injuries and got admitted in Sanjay Gandhi Memorial Hospital, Mangol Puri, Delhi and died on 09.10.2016 during treatment. A case U/s 279/304-A IPC has been registered with P.S. Mangol Puri, Delhi with respect to the accident in question vide FIR No. 959/16.
3. Reply on behalf of R-1 filed wherein it is submitted that he is the registered owner of the offending motorcycle bearing no. DL-8SBE-2863. He further submitted that the aforesaid motorcycle was stolen prior to the alleged accident from his house i.e. BG-6/256, Paschim Vihar, Delhi in intervening night of 03.10.2016-04.10.2016. He further averred that he gave a call to 100 number regarding the theft of the aforesaid offending motorcycle and pursuant to the same, the police came to his house on the same day and advised him to lodge the FIR on internet. He further asserted that according to the advise of police, he lodged the report with crime branch Delhi Police vide LR no. 947054/2016 dated 04.10.2016 (time 18:07 hrs) and MACT No. 217/19/17 Durgawanti Vs. Bhupender Singh & Ors. Page No.6/28 the FIR was registered vide e-FIR no. 029673/2016 with e-police station on 08.10.2016. He has also stated that he was not aware about the accident in question and even he was not in possession and control of the offending motorcycle at the time of the accident, he stated that respondent has nothing to do with the offending motorcycle as such he is not liable to pay anything to the petitioners. He further submitted that the offending motorcycle was recovered on 24.10.2016 as unclaimed from A Block Mangol Puri, Delhi.
4. It is pertinent to mention here that an application U/o 1 rule 10 (2) CPC read with section 151 CPC was filed on behalf of the respondent for deletion of his name from the array of respondent on the ground that at the time of the accident, the offending motorcycle was already stolen and the information regarding the theft of the aforesaid offending motorcycle was given to the police authorities. Since, the vehicle was stolen as such the respondent was not aware about the accident in question and even stated that the aforesaid offending motorcycle was not in physical position and control of the respondent Bhupinder Singh. Vide order dated 10.10.2018, the tribunal has dismissed the aforesaid application while holding that factum of the vehicle being stolen is a matter of trial and the liability of the owner including the insurance company, if any, has to be determined at the end of trial and cannot be decided at the inception. An appeal was also preferred against the aforesaid order of the tribunal before the Hon'ble High Court of Delhi vide C.M (M) 1498/2018 and the Hon'ble High Court of Delhi vide order dated 01.08.2019 has dismissed the same on the same grounds and directed this tribunal to expedite the hearing of the case.
5. On perusal of the pleadings and documents, the following issues were framed by Ld. Predecessor of the tribunal on 09.01.2018.MACT No. 217/19/17 Durgawanti Vs. Bhupender Singh & Ors. Page No.7/28
ISSUES.
1. Whether deceased Ram Dhani S/o Sh. Ram Tirth, expired due to injuries suffered in road traffic accident on dated 09.10.2016 at about 05:30 a.m., near Radhe Shyam Pakr-F2 Block, Mangol Puri, Delhi due to rash and negligent driving of offending vehicle i.e. Bike bearing no. DL-8SBE-2863 and negligent driving of offending vehicle i.e. bike bearing no.
DL-8SBE2863 which was being so driven by its driver on the said date, time and place?OPP
2. Whether the petitioners are entitled for any compensation, if so, to what amount and from whom? OPP.
3. Relief.
6. To substantiate their claim, petitioner Smt. Durgawanti (widow of the deceased) examined herself as PW-1 and Sh. Kapil Dev, S/o Sh. Bhagwan Dass as PW-2 (eye witness of the accident). No other witness was examined and PE was closed vide statement dated 24.12.2019.
7. In rebuttal, respondent Sh. Bhupender Singh examined himself as RW-1, HC Ashish Rathee, PS Paschim Vihar (East), Delhi as RW2, HC Rohit, PS Paschim Vihar as RW-3 and ASI Baljit Singh as PW-4. No other witness was examined and RE was closed by order dated 27.10.2020.
8. I have heard Ld. Counsel for the parties at length and perused the record including the pleadings and the documents. I have given a thoughtful consideration to the same. The issue wise determination is as under:-
ISSUE NO. 1" Whether deceased Ram Dhani S/o Sh. Ram Tirth, expired due to injuries suffered in road traffic accident on dated 09.10.2016 at about 05:30 a.m., near Radhe Shyam Pakr-F2 Block, Mangol Puri, Delhi due to rash and negligent driving of offending vehicle i.e. Bike bearing no. DL-8SBE-2863 and negligent driving of offending vehicle i.e. bike bearing no. DL-8SBE2863 which was being so driven by its driver on the said date, time and place? OPP?MACT No. 217/19/17 Durgawanti Vs. Bhupender Singh & Ors. Page No.8/28
9. The onus to prove, the aforesaid issue is on the petitioners. To prove the said issue the petitioner no. 1 Smt. Durgawanti Devi examined herself as PW-1, who in her testimony by way of affidavit Ex. PW-1/A deposed on the lines of averments made in the claim petition. She deposed about the mode and the manner in which the accident has taken place resulting into death of her deceased husband Sh. Ramdhani. She relied upon the following documents: -
S. No. Description of documents Remarks
1. Copy of FIR No. 959/18, PS Mangol Puri, U/s Ex. PW-1/1 (colly.) 279/304/336 IPC
2. PM report filed by the IO with DAR Ex. PW-1/2
3. DAR Ex. PW-1/3
10. PW-1 Smt. Durgawanti was duly cross examined by the Ld. Counsel for the respondent where she has deposed that she is not an eye witness of the accident in question. She further deposed that at the time of the accident, deceased Ram Dhani was aged about-60 years and her son Babloo used to take care of all financial matters for the last 15 years.
11. PW-2 Sh. Kapil Dev in his testimony (by way of affidavit Ex. PW- 2/A) has deposed that he is an eye witness of the accident in question. He deposed that he is residing at B-702, Mangol Puri, Delhi since his birth along-with his family members and his father is the owner of the said property and at the time of the accident, he was working at Ring Road Mall, Sec-3, Rohini Delhi and his duty hours were from 10:00 a.m. to 05:00 p.m. He has further deposed that deceased Ramdhani was fit and fine person and when deceased Ram Dhani was coming from Balmiki Chowk, suddenly offending vehicle hit deceased and someone called at 100 number and he was around 50 m. away from deceased Ram Dhani. He further deposed that MACT No. 217/19/17 Durgawanti Vs. Bhupender Singh & Ors. Page No.9/28 the driver of the offending vehicle fled away from the spot after leaving the offending motorcycle. He has further deposed that offending vehicle was lying at the spot till 12:30 p.m. after the accident. He further deposed that police official told him that the offending vehicle was stolen at the time of the accident and the police official told him about the said fact after 12 days. He admitted that the police official never took him for any TIP.
12. In rebuttal, Respondent Sh. Bhupinder Singh examined himself as RW-1/A and relied upon the following documents:-
S. No. Description of documents Remarks
1. Copy of information report dated 04.10.2016 Ex. RW-1/A (OSR)
2. Copy of Aadhar Card Ex. RW-1/B (colly.)
3. Copy of e-FIR No. 029673/16 dated Ex. RW-1/C
08.01.2016
13. Respondent in his testimony has deposed that the offending motorcycle was not in his custody as the same was stolen from his house in the intervening night of 03/04.10.2016. He further deposed that he gave a call to 100 number regarding theft of the aforesaid motorcycle. He got the report lodged on internet vide LR no. 947054/2016 dated 04.10.2016 (18:07) hrs. and the FIR was registered vide FIR no. 029673/2016 dated 08.10.2016 in e-police Station.
14. RW-1 was duly cross examined by the Ld. Counsel for the petitioner, where he deposed that vehicle bearing registration no. DL-8SBE- 2863 was stolen on the intervening night of 03.10.2016 and 04.10.2016. He has further deposed that he came to know the facts of stolen in the morning of 04.10.2016 and his bike where parked amongst many other bikes. He has further deposed that at first, he called at 100 number in the afternoon of 04.10.2016 and thereafter registered complaint on computer on line. He has further deposed that he only drives his bike. He further deposed that he MACT No. 217/19/17 Durgawanti Vs. Bhupender Singh & Ors. Page No.10/28 cannot tell without seeing documents, when he has taken the insurance policy of his bike. He has denied the suggestion that he has not taken the insurance policy on 2nd terms i.e. after purchasing his bike or that he was negligent person by not taking the insurance policy of his bike as he has no document of insurance policy. He has further denied the suggestion that he is negligent person merely by not talking the insurance policy of his bike as he has no document of insurance policy. He has further denied that he has not made any efforts to search his motorcycle. He has deposed that he has intimated the fact of the theft of the offending motorcycle on 04.10.2016 to police. He has also deposed that the IO of the case has informed him regarding the involvement of his bike after 4-5 days. He has denied that he got the e-FIR registered on 08.10.2016 at the instance of the IO of the case.
15. RW-2 HC Ashish Rathee, No. 2672 OD posted at PS Paschim Vihar, Delhi by way of his testimony has proved on record the e- FIR bearing no. 029673 dated 08.10.2016, PS e-police Station - M. V. Theft of the crime branch, Delhi Police which was already exhibited as Ex. RW-1/C. During, cross examined, he has deposed that he cannot tell as to when the information was reached to police station as no time is mentioned on the FIR. He has further deposed that he did not know when the IO started investigation after receiving E-FIR regarding theft of the offending vehicle. He denied the suggestion that no investigation was carried out by the IO in the theft case of offending motorcycle.
16. RW-3 HC Rohit PS Paschim Vihar, Delhi, who is the MHC (R) was examined through e-mode. In his testimony, RW-3 has also proved on record the FIR bearing no. 29673 dated 08.10.2016 Ex. RW-3/1. The witness has further deposed that DD bearing no. 31A dated 04.10.2016 was received on phone through Head Constable Ram Avtar at 04:55 p.m. on 04.10.2016 from the mobile no. 9999898095 regarding the theft of the motorcycle MACT No. 217/19/17 Durgawanti Vs. Bhupender Singh & Ors. Page No.11/28 bearing registration no. BL-8SBE-2863 (black color, CEO-42571/ME 121COE 9C 2042411). he has further deposed that report of theft has informed to the duty officer is for the period between 03.10.2016 and 04.10.2016 from 10:00 a.m. in the morning to 03:00 p.m. During cross examined, he has deposed that he cannot tell the owner of the mobile number i.e. 9999898095. He has further deposed that he has verified from the rojnamcha about the details of DD No. 31A . He has further deposed that SI Hari Prakash was the IO to investigate the DD no. 31A dated 04.10.2016 and further deposed that he cannot tell about the investigation carried out by SI Hari Prakash as the same is not on the record. He has further deposed that e-FIR Ex. RW-3/1 was received in the police station on the same day when it was lodged through e-mode.
17. PW-4 ASI Baljit Singh, PS Mundka, Delhi has deposed in his testimony that he was posted in PS Paschim Vihar, Delhi on 04.10.2016 and his duty hours were from 04:00p.m. to 12:00 p.m. he has further deposed that at 04:55 p.m., he received a telephonic information through W50 (Control Room) regarding theft of the motorcycle no. 2863 make Yamaha from mobile no. 9999898095 of Ct. Ram Avtar number 1165/PCR. Thereafter, on receiving the call, the DD entry no. 31A, dated 04.10.2016 was recorded and was marked to SI Hari Prakash for investigation. He proved on the record the same as Ex. RW-4/1. The aforesaid witness was also subjected to cross examination where he has deposed that he recorded all the information as received by him during the day of his duty and no addition or subtraction was done by him while recording the information in the rojnamcha in the DD entry books. He has further deposed that he has no knowledge about the investigation carried out by the IO with respect to the aforementioned DD.
18. Now adverting to the statutory position, describing the nature of MACT No. 217/19/17 Durgawanti Vs. Bhupender Singh & Ors. Page No.12/28 proceedings before a claims tribunal the Hon'ble Supreme court in State of Mysore Vs. S.S. Makapur, 1993 (2) SCR 943 has held :
"That tribunal exercising Quasi-Judicial function are not bound to follow the procedure prescribed for trial of actions in courts nor are they bound by strict rules of evidence. They can unlike courts, obtain all information for the points under the inquiry from all sources and through all channels, without being fettered by rules and procedure, which govern proceedings in court. The only obligation which the law casts on them is that they should not act on any information which they may receive unless they put it to the party against whom it is to be used and give him a fair opportunity to explain it. What is a fair opportunity depend on the facts and circumstances of each case but where such an opportunity has been given, the proceedings are not open to attack on the ground that the inquiry was not conducted in accordance with the procedure followed in Courts"
19. Needless to mention here that the petitioners are required to prove the rashness and negligence on the part of the driver of offending vehicle on the touch stone of preponderance of probabilities and the standard of proof beyond reasonable doubt does not apply to the proceedings before the tribunal.
20. In Bimla Devi and Ors. Vs. Himachal Road Transport Corporation and Ors (2009) 13 SC 530, Supreme Court held that:-
" In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied."
21. In National Insurance Company Pvt. Vs. Smt. Pushpa Rana & Ors., 2008 II AD (DELHI) 269. Hon'ble Delhi High court observed that "...on perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced (1) certified copy of the criminal record of criminal case in FIR No. 955/2001, MACT No. 217/19/17 Durgawanti Vs. Bhupender Singh & Ors. Page No.13/28 pertaining to involvement of the offending vehicle, (ii) criminal record showing completion of investigation of police and issue of charge sheet under Section 279/304-A, IPC against the driver, (iii) certified copy of FIR, wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of the deceased. These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under Motor Vehicles Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Hence, this contention of the counsel for the appellant also falls face down."
22. It may be seen that FIR No.959/16, U/s 279/304-A IPC PS:
Mangol Puri was registered with regard to the accident in question. Record shows that the FIR was registered on 09.10.2016, the very next day of the date of the accident. The medico legal report of deceased bearing no. 19042 dated 08.10.2016 at about 06:25 a.m. of Sanjay Gandhi Memorial Hospital, Mangol Puri, Delhi (part of DAR Ex. PW-1/3) shows that the deceased Ramdhani was brought to the hospital by PCR and the during treatment he was expired on 09.10.2016. The MLC further shows the history of RTA (Road Traffic Accident). The postmortem report of deceased bearing no. No.1016/16 (Ex. PW-1/2) clearly shows that the cause of death is due to shock as a result of abdominal injury due to blunt force impact. Further, as per the mechanical inspection report of offending motorcycle bearing no. DL- 8SBE-2863, the same is found to have been damaged from front side including the damage of headlight, left side cover missing, battery missing, vehicle key missing. Further, the site plan also shows point A where the accident took place. Further, the testimony of PW-2 who is eye witness of the accident in question also corroborates and proves that the accident has taken place due to the rash and negligent driving of the driver (unknown) of the offending vehicle, who fled away from the spot after leaving the offending motorcycle. Since, the driver was fled away and not traced yet being a thief as the vehicle was stolen from its owner as on the date of the accident, IO of the case filed untraced report before the concerned Ld. M. M. and the MACT No. 217/19/17 Durgawanti Vs. Bhupender Singh & Ors. Page No.14/28 petitioner's/claimants has even filed the protest petition against the untraced report. Thus, taken on the yardstick of preponderance of probabilities there is sufficient evidence to cumulatively prove that the offending vehicle bearing registration no. DL-8SBE-2863 was being driven by its driver (unknown) in a rash and negligent manner and caused the unfortunate accident, resulting into the death of the deceased Ram Dhani on the aforesaid date, time and place.
23. Issue No. 1 is decided accordingly.
ISSUE NO.2 "Whether the petitioners are entitled for any compensation, if so, to what amount and from whom? OPP."
24. It is to be borne in mind that Motor Vehicle Act 1988 does not stipulate holdings a trial for petition preferred u/s. 166 of the Act. U/s. 168 of the MV Act, the Claims Tribunal holds an inquiry to determine compensation which must appear to it to be just and reasonable. Rules of evidence are not applicable in an inquiry conducted by the Claims Tribunal stricto sensu.
25. The guiding principles for assessment of "just and reasonable compensation" has been laid down by Hon'ble Apex Court in 2012 (10) JT 484 titled K. Suresh Vs. New India Assurance Co. Ltd.
Despite many a pronouncment in a field, it still remains a challenging situation warranting sensitive as well as dispassionate exercise how to determine the incalculable sum in calculable terms of money in cases of personal injuries. In such assessment, neither sentiments nor emotions have any role. There should be grant of "just compensation". Thus, it becomes a challenge for a court of law to determine "just compensation"
which is neither a bonanza nor a windfall, and simultaneously, should not be a pittance. However, it would involve some guesswork as there cannot be any mathematical exactitude or a precise formula to determine the quantum of compensation. In determination of compensation the fundamental criterion of "just compensation" should be inhered.MACT No. 217/19/17 Durgawanti Vs. Bhupender Singh & Ors. Page No.15/28
26. The Hon'ble Supreme Court while analyzing the entire law for grant of just compensation in fatal cases has recently in a judgment reported as 2017 (13) SCALE 12 : 2017 XI AD (SC) 113 titled National Insurance Co. Ltd.
Vs. Pranay Sethi and Ors. has held :-
57. Section 168 of the Act deals with the concept of "just compensation" and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standard because such determination can never be in arithmetical exactitude. It can never be perfect.
The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case. The conception of "just compensation" has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. In a case of death, the legal heirs of the claimants cannot expect a windfall. Simultaneously, the compensation granted cannot be an apology for compensation. It cannot be a pittance. Though the discretion vested in the tribunal is quite wide, yet it is obligatory on the part of the tribunal to be guided by the expression, that is, "just compensation". The determination has to be on the foundation of evidence brought on record as regards the age and income of the deceased and thereafter the apposite multiplier to be applied. The formula relating to multiplier has been clearly stated in Sarla Verma (supra) and it has been approved in Reshma Kumari (supra). The age and income, as stated earlier, have to be established by adducing evidence. The tribunal and the Courts have to bear in mind that the basic principle lies in pragmatic computation which is in proximity to reality. It is a well accepted norm that money cannot substitute a life lost but an effort has to be made for grant of just compensation having uniformity of approach. There has to be a balance between the two extremes, that is, a windfall and the pittance, a bonanza and the modicum.
27. The petitioners are legal heirs of deceased Sh. Ramdhani Petitioner no. 1 is wife of deceased, petitioner no. 2 and 3 are married daughters of deceased and petitioner no. 4 is married son of deceased and consequent upon the death of deceased they have suffered a lot mentally as well as monetarily. As such petitioners are required to be restituted by way of just and reasonable compensation which under the various heads is determined as under:-
MACT No. 217/19/17 Durgawanti Vs. Bhupender Singh & Ors. Page No.16/28LOSS OF DEPENDECY
28. The petitioners have claimed that the deceased Ramdhani was working at the time of the accident and was earning Rs. 10,000/- p.m. To prove the same, neither petitioners have placed on record his appointment letter, salary slip or even any statements of account or the ITRs. Petitioners have failed to examine any witness or any employer where the deceased was working to prove the occupation or monthly income of deceased. Even, the petitioners has not placed on record any educational qualification certificate of the deceased Ramdhani. In these facts and circumstances, this tribunal is left with no other yardstick to determine the monthly income of the petitioner except minimum wages of unskilled person and accordingly consider the income of deceased to be Rs.9724/-per month (minimum wages prevailing at the time of accident for unskilled person in Delhi).
29. The deceased Sh. Ramdhani survived by his wife and three children i.e. two married daughters and one married son. Since, both the daughters and the son were married at the time of the accident, therefore, it is held that there were only one dependent namely Smt. Durgawanti upon window of deceased Sh. Ram Dhani at the time of accident. Therefore, the loss of dependency is to be taken as ½ of the income of the deceased. As such a deduction of ½ is to be made from the income of the deceased accordingly and in terms of 2009 ACJ 1298 SC titled Sarla Verma & Ors. Vs. Delhi Transport Corporation & Ors.
30. The age of the deceased as per the postmortem report was 60 years. Therefore, the age of the deceased has been considered as 60 years on the basis of postmortem report and in absence of any other documents, the multiplier of 9 would be applicable as per Sarla Verma (Supra) and Pranay Sethi (Supra).
MACT No. 217/19/17 Durgawanti Vs. Bhupender Singh & Ors. Page No.17/28Further, there would be an addition of 10% on the income of deceased for the purpose of the future prospects as the deceased was self- employed. Reliance placed upon Pranay Sethi (Supra).
Therefore, the calculation for compensation shall be:-
( 9724 + 10%= 972.40) = (9724+972.40) = 10,696.40.
Monthly Loss of dependency after deductions in terms of Sarla Verma (Supra) would be Rs. = 10,969.40X1/2= 5,348.20p.
Thus, the total loss of dependency on account of death of deceased comes to Rs. 5348.20X12X9= 5,77,605.60p (rounded off to Rs. 5,77,600/-) (Rupees Five Lac Seventy Seven Thousand Six Hundred) Only, which is awarded as compensation under this head.
COMPENSATION ON ACCOUNT OF NON PECUNIARY LOSSES
31. Apart from above, a sum of Rs. 15,000/- (Rupees Fifteen Thousand Only) is awarded under the head of loss of estate and Rs. 15,000/- (Rupees Fifteen Thousand) is awarded towards Funeral expenses. Reliance is placed upon Praney Sethi (Supra). The petitioners are also entitled to Rs. 40,000/- each towards loss of progenial/filial consortium for loss of company, care, help, solace and affection of the deceased. There has been divergence and abashment regarding loss of love and affection in view of the judgment of Hon'ble Apex Court in Magma General Insurance Co. Ltd. Vs. Nanu Ram, 2018 SCC Online SC 1546 which has later been discussed by the Hon'ble High Court in case MAC. APP. 831/2018 titled Badal & Ors. Vs. Iffco Tokio General Insurance Company Ltd. & Ors. decided on 08.04.2019 and also in judgment passed in case MAC. APP. 729/2019 titled Navin Parcha & Ors.
Ors. decided on 06.09.2019. However, the entire controversy is set at rest by a full bench judgment of the Hon'ble Apex Court in United India Insurance Co. Ltd.
Ltd. V. Satinder Kaur, Kaur, 2020 SCC online SC 410 decided on 30.06.2020 where the Hon'ble Apex Court has held that the loss of consortium in itself is a MACT No. 217/19/17 Durgawanti Vs. Bhupender Singh & Ors. Page No.18/28 comprehensive terms to include loss of love and affection and there is no justification to award compensation towards loss of love and affection as a separate head.
32. Thus, the total compensation is assessed as under :
1. LOSS OF DEPENDENCY Rs. 5,77,600/-
2. COMPENSATION ON Rs.15,000/- + ACCOUNT OF NON- Rs.15,000/- + PECUNIARY LOSS Rs. 1,60,000/- + 1,90,000/-
Total = Rs. 7,67,600/-
33. Issue no. 2 is decided accordingly.
LIABILITY
34. Now the liability is to be fixed as to whether the respondent owner is liable to pay the amount of compensation or is required to be exonerated on account of the contention that the offending vehicle was not in power and possession of the respondent at the time of the accident. It is pertinent to note that the offending vehicle was uninsured at the time of accident, with the insurance having been expired on 26.03.2016. It is also pertinent to point out that the FIR in question i.e. FIR no. 959/16 U/s 279/304-A IPC of PS Mangol Puri, Delhi has resulted into filing of an untraced chargesheet by the investigating agency.
35. Ld. Counsel Sh. Maini has vehemently argued that the offending vheicle namely Yahama motorcycle bearing no. DL-8SBE-2863 was in fact stolen on the intervening night of 3-4/10/2016 and information to this effect was already given by the respondent to the police in the evening of MACT No. 217/19/17 Durgawanti Vs. Bhupender Singh & Ors. Page No.19/28 04.10.2016 itself vide DD entry no.31A (Ex. RW-3/1) which was given to Head Constable Ram Avatar through phone and even an e-LR no.947054/16 was recorded by Delhi Police Crime Branch at 18:07 hrs. (Ex. RW1/A). It has been further contented that an e-FIR bearing no. 029673, U/s 379 IPC, e-police station Crime Branch for M V Theft was also registered on 08.10.2016 i.e. the date of the accident itself and therefore, the respondent was in no way liable to pay for the vicarious liability for the accident and loss sustained by the petitioners on account of death of Sh. Ramdhani. Ld. Counsel has gone on to challenge the entire investigation being carried out in the most disastrous manner as the offending vehicle though left after the accident on the accident site itself by the driver was found in a unclaimed position on 24.10.2016 at C Block Park near Mother Diary after 16 days and at a place which is much away from the place of the accident. Ld. Counsel has questioned the entire investigation in the sense that the case property namely the offending motorcycle, was not seized immediately and was kept lying on the spot from 05:30 in the morning i.e. the reported time of the accident uptil 12:30 in the afternoon as per version of the the eye witness PW-2 Sh. Kapil in his testimony before the court. Ld. Counsel has even referred to the death summary of the deceased Ram Dhani (Part of DAR Ex.
PW-1/3) where the cause of death is referred to be cardiac arrest and not death due to road traffic accident.
36. Ld. Counsel for the petitioner on the other hand has vehemently opposed the contentions raised by the respondent on th ground that the same are false and result of afterthought to avoid his liability. It has been argued that the respondent's version cannot be believed since on 04.10.2016 a lost report (LR) Ex. RW1/A was lodged with the police and not an FIR for theft. It is pointed out by Ld. Counsel that the lost report clearly contains a disclaimer that the report lodged under this application is not a subject matter of enquiry/investigation and further mentions that in case of MACT No. 217/19/17 Durgawanti Vs. Bhupender Singh & Ors. Page No.20/28 loss due to theft or any other crime contact nearest police station and accordingly the respondent should have gone to the police station to register FIR rather than waiting for another four days and the unfortunate accident to happen. It has been contended that in any case the e-FIR was registered by the respondent on 08.10.2016 by using his e-mail ID. In response thereto, Ld. Counsel Sh. Maini has stated that respondent has reported the theft of the motorcycle to the police vide DD no. 31A dated 04.10.2016 (Ex. RW-3/1) and it was police to take up the matter as per law on which he had no control. Finally, Ld. Counsel for petitioner has argued that the respondent was highly negligent in not keeping the subject offending vehicle under a valid insurance thereby depriving the hapless LR's of deceased Ram Dhani of their legitimate right and liability should be clearly borne by the respondent owner only.
37. A careful examination of the records and the contentions raised by the parties leads the tribunal to two pertinent questions in order to ascertain the liability of the respondent herein. One whether the offending vehicle was stolen on 04.10.2016 and two whether the respondent made a complaint in time so as to avoid its vicarious liability. It is to be borne in mind that in accident claim cases the primary liability to pay the damages for the tort of negligence is that principal tortfeaser i.e. the driver of the offending vehicle. The secondary or the vicarious liability falls upon the owner of the offending vehicle and if the vehicle is insured then the same falls upon the insurer as indemnifier of the insured/owner. Analysing the oral as well as documentary evidence, it may be seen that the testimony of RW-4 ASI Baljeet Singh, Duty Officer of police station Paschim Vihar is clear to the extent that the respondent has informed the loss of offending vehicle on 04.10.2016 vide DD entry no. 31A (Ex. RW-4/1) from mobile no. 999989095 from Ct. Ram Avtar, No. 1165 PCR, which was duly recorded in the rojnamcha (DD Register). A careful perusal of the same shows the use of MACT No. 217/19/17 Durgawanti Vs. Bhupender Singh & Ors. Page No.21/28 word "Chori" (theft) which means that the respondent has informed the police regarding theft of motorcycle bearing no. 2863 make Yahama from his house on 04.10.2016 itself. The testimony further shows that the DD entry was handed over to SI Hari Prakash for further investigation. The aforesaid testimony of RW-4 has been further corroborated by the testimony of RW3 Head Constable Rohit No. 1425 OD who was the MHC (R) of the police station and has clearly deposed in his testimony that the aforesaid information was received on phone through Head Constable Ram Avatar at 04:55 a.m. on 04.10.2016. He also mentions that the same was in respect of the theft of motorcycle bearing no. DL-8SBE-2863 Black Color. Though, it is not explainable as to how and why the respondent has registered a loss report on 04.10.2016 and later decided to register an e-FIR on 08.10.2016 i.e. the day of the accident itself. The respondent has even tried to shift its stand from his reply of being advised by the police officials of PCR to register the lost report and then shifting it to an e-FIR for reasons best known to him. However, for the purpose of present enquiry, it is clear and categoric that the offending vehicle in question was not in possession and control of the respondent since, 04.10.2016. Thus, the tribunal comes to the conclusion that the vehicle was actually stolen and the complaint was also made by the respondent in whatever manner. But the pertinent question before the tribunal is whether an owner of the vehicle involved in the accident resulting into a precious life being lost can be exonerated that too completely from its liability to pay the compensation. It may be seen that the offending vehicle was not insured at the time the fatal accident in question has taken place, despite the mandatory statutory provision contained in Section-146 of M. V. Act 1988 that a vehicle must be insured mandatorily against a third party risk. It is a fact which has come on record that the insurance of offending motorcycle stands expired about 7 months ago i.e. 26.03.2016 which means that the offending vehicle was plying on road for all this period without a valid insurance risking life and body of others. The same is a hard fact in respect MACT No. 217/19/17 Durgawanti Vs. Bhupender Singh & Ors. Page No.22/28 of many such vehicles plying on the roads. As per rough estimates available on the internet about 57% of two wheelers and about 38% of all four wheelers ply on the roads the fault of in the country without a mandatory insurance despite the law being in force. Is it merely a fault of the vehicle owner or equally the fault of enforcement agency also. The grant of compensation under the M. V. Act, is under a beneficial legislation and in appropriate cases, even the State even undertakes to restitute the helpless victims or their families by way of reasonable compensation where the assailant is unknown. The state, in Delhi does so by formulating laudable schemes like Delhi Victim Compensation Scheme. Recently, an amendment has been carried out in the motor vehicle act which shall be applicable through out the country by incorporating the provisions for grant compensation in hit and run cases and even an All India Motor Vehicle Accident Fund has also been created under section 164-B of the Act. The present case is a case where an untrace report has been filed by the investigating agency as a Hit and Run case, and is also a case where the owner was negligent in not discharging its statutory liability of maintaining a valid insurance for his motor vehicle for a substantial period of time. This being the position while the State should bear the liability to pay the compensation to the victims of the present fatal accident, some indicative liability should also be fastened on the negligent owner. Accordingly, the tribunal in order to balance the equities directs 10% of the compensation amount to be paid by the respondent owner while the remaining 90% be paid by the DSLSA under the Delhi Victim Compensation Scheme. It is further strongly expected from the enforcement agency like the police and the transport department to carry out special drive for eliminating the malaise of motor vehicles plying on the roads without statuary insurance.
This issue is decided accordingly.
MACT No. 217/19/17 Durgawanti Vs. Bhupender Singh & Ors. Page No.23/28ISSUE NO. 3 RELIEF
38. In view of the discussion and findings of this Tribunal on issue no. 1 and 2, this Tribunal awards a compensation of Rs. 7,67,600/- (Rupees Seven Lac Sixty Seven Thousand Six Hundred) Only, including interim award, if any, along-with interest @ 9% per annum in favour of petitioners and against respondents w.e.f. date of filing of the petition/DAR i.e. 20.04.2017 till the date of its realization. Respondent is directed to deposit its part (10%) of the award with upto date interest within 30 days from today i.e. the date of passing the award. Reliance is placed on judgment "Oriental Insurance Co. Ltd. Vs. Sangeeta Devi & Ors., bearing MAC APP 165/2011 decided on 22.02.2016. The remaining amount (90%) of compensation be disbursed by DSLSA under the Delhi Victim Compensation Scheme.
APPORTIONMENT
39. Examination of petitioners to ascertain their financial condition/needs, mode of disbursement and amount to be kept in fixed deposits in terms of clause 26 (now clause 29 of MCTAP) could not be recorded for want of requisite documents and due to pandemic Covid-19. The petitioners have failed to furnish the requisite documents in terms of clause 29 of MCTAP despite directions being given vide order dated 09.05.2019. In these circumstances and in view of the clause 29 of MCTAP, the disbursement is withheld. The Branch Manager concerned shall not release any amount to the petitioner unless compliance of clause 29 of MCTAP is made.
40. It is made clear that at the time of deposit of award amount with the bank, the respondent and DSLSA shall specifically mention the Case No., title of the case, date of award and the name of the court on the backside of the cheque and the respondent shall also file the attested copy of the award, attested by its own officer, to the bank at the time of deposit of MACT No. 217/19/17 Durgawanti Vs. Bhupender Singh & Ors. Page No.24/28 the amount with the bank. The Manager concerned of the bank is directed to comply the award and further directed to release the award amount to all the petitioners through bank accounts. Till the amount is released through the said accounts, the concerned banks shall keep the money in FDR's to avoid any loss of interest.
41. Respondent and DSLSA is directed to deposit the award amount within 30 days after sending notice of deposit to the petitioners.
42. Copy of this judgment/award be given to petitioners and Ld. counsel for respondent for compliance. Copy of order be also sent to concerned M.M and DSLSA for compliance as per clause 35 (ii) and 36 of MCTAP.
43. File be consigned to record room after completion of necessary 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 along-with his report on 26.02.2021.
44. Copy of this award be also sent the Secretary DSLSA, Commissioner of Delhi Police (HQ), Secretary State Transport Authority, Govt. of NCT, Delhi and the Nodal Officer State Bank of India, through e-mail ID i.e. [email protected] in terms of the order dated 22.02.2019 passed by the Hon'ble High Court in case FAO No. 842/03 titled "Rajesh Tyagi & Ors. Vs. Jaibir & Ors.
Announced in the open Court today i.e. on 25.01.2021.
(MUKESH KUMAR GUPTA) ADJ-1 + MACT (N/W), ROHINI COURTS, DELHI MACT No. 217/19/17 Durgawanti Vs. Bhupender Singh & Ors. Page No.25/28 FORM - IV A SUMMARY OF COMPUTATION OF AWARD AMOUNT IN DEATH CASES TO BE INCORPORATED IN THE AWARD
1. Date of the accident: - 08.10.2016
2. Name of the deceased: - Ramdhani
3. Age of deceased: -60 years (at the time of the accident).
4. Occupation of the deceased: - Deceased Ram Dhani was working at the time of the accident.
5. Income of the deceased: - Rs. 9724/-.
6. Name, age and relationship of legal representatives of deceased:
S. No. Name Age Relation
(i) Smt. Durgawanti 59 years Wife
(ii) Smt. Mamta 34 years Daughter
(iii) Smt. Nisha 28 years Daughter
(iv) Sh. Babloo 35 years Son
Computation of Compensation
S.No. Heads Awarded by the Claims
Tribunal
7. Income of the deceased (A) 9724/- p.m.
MACT No. 217/19/17 Durgawanti Vs. Bhupender Singh & Ors. Page No.26/28
8. Add-Future Prospects (B) = 9724X10%=972.40/-
= (9724 + 972.40) = 10,696.40/-
9. Less-Personal expenses of the 1/2 deduction deceased (C) 10,696.40 X 1/2 = 5348.20p
10. Monthly loss of dependency 10,696.40 -5348.20p [(A+B) - C =D] = 5348.20p
11. Annual loss of dependency 5348.20X12 (Dx12) 12. Multiplier (E) 9
13. Total loss of dependency 5348.20X12X9= 5,77,605.6p (Dx12xE = F) (Rounded off Rs. 5,77,600/-)
14. Medical Expenses (G) Nil.
15. Compensation for loss of Rs. 1,60,000/-
consortium & loss of love and affection (H)
16. Compensation for loss of estate(I) Rs. 15,000/-
17. Compensation towards funeral Rs. 15,000/-
expenses (J)
18. TOTAL COMPENSATION Rs. 7,67,600/-
(F+G+H+I+J=K)
19. RATE OF INTEREST AWARDED 9% P. A.
20. Interest amount up to the date of Rs. 2,60,437.22p award (L) 21 Total amount including interest Rs. 10,28,037.22p (K+L) MACT No. 217/19/17 Durgawanti Vs. Bhupender Singh & Ors. Page No.27/28
22. Award amount released Examination of petitioners to ascertain their financial condition/needs, mode of disbursement and amount to be kept in fixed deposits in terms of clause 26 (now clause 29 of MCTAP) could not be recorded for want of requisite documents and due to pandemic Covid-19. The petitioners have failed to furnish the requisite documents in terms of clause 29 of MCTAP despite directions being given vide order dated 09.05.2019. In these circumstances and in view of the clause 29 of MCTAP, the disbursement is withheld. The Branch Manager concerned shall not release any amount to the petitioner unless compliance of clause 29 of MCTAP is made.
23. Award amount kept in FDRs ____
24. Mode of disbursement of the Motor Accident Claims Tribunal award amount to the claimant(s).
Annuity Deposit (MACAD) in terms of clause 32 of MCTAP.
25. Next Date for compliance of the 26.02.2021 award.
(MUKESH KUMAR GUPTA) ADJ-01+MACT (NW).
Rohini Courts, Delhi.
MACT No. 217/19/17 Durgawanti Vs. Bhupender Singh & Ors. Page No.28/28