Delhi District Court
Smt. Sushma (Wife Of The Deceased) vs Sh. Deepak (Driver) on 22 September, 2018
IN THE COURT OF SH. RAJ KUMAR
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNAL:
(WEST-01):DELHI
MACT Case No. 476676/16
1. Smt. Sushma (Wife of the deceased)
W/o Late Sh. Prakash Chand
Aged about 37 years
2. Ms. Mamta (Daughter of the deceased)
D/o Late Sh. Prakash Chand
aged about 19 years
3. Ms. Poonam (Daughter of the deceased)
D/o Late Sh. Prakash Chand
aged about 15 years
4. Baby Kumkum (Daughter of the deceased)
D/o Late Sh. Prakash Chand
aged about 13 years
5. Baby Anju (Daughter of the deceased)
D/o Late Sh. Prakash Chand
aged about 9 years
(Petitioners No. 3 to 5 being minors are represented through their mother
petitioner No.1 being natural guardian and next friend)
6. Sh. Ramkirpal (Father of the deceased)
S/o Sh. Dwarka Prasad Ojha
aged about 80 years
7. Smt. Mina Devi (Mother of the deceased)
W/o Sh. Ramkirpal
aged about 75 years
All Resident Of:
V-131, Tripathi Enclave, Prem Nagar-2,
Kirari Suleman Nagar,
Sultanpuri C-Block,
MACT Case No. 476676/16 Page No. 1/21
Delhi-110086
........Petitioners
Versus
1. Sh. Deepak (Driver)
S/o Sh. Krishan
R/o 138, Kavita Colony,
Nangloi, Delhi
2. Sh. Yogesh Bagaria (Regd. Owner)
S/o Sh. Ram Singh
R/o E-141, E-Block,
DDA Flats, New Ranjit Nagar,
Delhi
3. Sh. Santosh Kumar (Present Owner)
S/o Sh. Mohan lal
R/o B-4/171, J.J. Colony,
Samaypur, Bhalswa,
Delhi-110033
......... Respondents
Date of Institution: : 16.03.2016
Date of reserving order/judgment : 13.09.2018
Date of pronouncement: : 22.09.2018
AWARD
FORM-V
COMPLIANCE OF THE PROVISIONS OF THE MODIFIED CLAIMS TRIBUNAL AGREED PROCEDURE
1. Date of the accident 21.11.2015
2. Date of intimation of the accident by the Not mentioned Investigation Officer to the Claims Tribunal. (Clause 2)
3. Date of Intimation of the accident by the Offending vehicle was uninsured MACT Case No. 476676/16 Page No. 2/21 Investigating Officer to the Insurance at the time of accident Company. (Clause 2)
4. Date of filing of Report under Section Date not mentioned 173 Cr. P.C. before the Metropolitan Magistrate. (Clause 10)
5. Date of filing of Detailed Accident 16.03.2016 Information Report (DAR) by the Investigating Officer before Claims Tribunal. (Clause 10)
6. Date of service of DAR on the N.A. Insurance Company. (Clause 11)
7. Date of service of DAR on the claimant 16.03.2016
(s). (Clause 11)
8. Whether DAR was complete in all Yes respects? (Clause 16)
9. If not, whether deficiencies in the DAR ---
removed later on?
10. Whether the police has verified the Yes documents filed with DAR? (Clause 4)
11. Whether there was any delay or No deficiency on the part of the Investigating Officer ? If so, whether any action/ direction warranted?
12. Date of appointment of the Designated Offending vehicle was uninsured Officer by the Insurance Company.
(Clause 20)
13. Name, address and contact number of N.A. the Designated Officer of the Insurance Company. (Clause 20)
14. Whether the Designated Officer of the N.A. Insurance Company submitted his report within 30 days of the DAR?
(Clause 22)
15. Whether the Insurance Company N.A. admitted the liability? If so, whether the Designated Officer of the Insurance Company fairly computed the compensation in accordance with law.
MACT Case No. 476676/16 Page No. 3/21(Clause 23)
16. Whether there was any delay or N.A. deficiency on the 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 N.A. the offer of the Insurance Company.
(Clause 24)
18. Date of the award 22.09.2018
19. Whether the award was passed with Yes the consent of the parties? (Clause 22)
20. Whether the claimant (s) were directed Yes to open savings bank account (s) near their place of residence? (Clause 18)
21. Date of order by which claimant (s) 15.02.2018 were directed to open savings bank account (s) near his place of residence and produce PAN Card and Adhaar 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 petitioners have already the passbook of their savings bank placed on record the copy of their account near the place of their passbooks without any residence along with the endorsement, endorsement to the effect that no PAN Card and Adhaar Card? (Clause cheque book/debit card has been
18) issued.
23. Permanent Residential Address of the All the petitioners are R/o V-131, Claimant(s) (Clause 27) Prem Nagar-2, Kirari Suleman Nagar, Nithari, North West Delhi, Delhi-110086.
24. Details of savings bank account(s) of Yet to be filed the claimant(s) and the address of the bank with IFSC Code. (Clause 27)
25. Whether the claimant(s) savings bank Yes MACT Case No. 476676/16 Page No. 4/21 account (s) in near his place of residence? (Clause 27)
26. Whether the claimant (s) were Yes examined at the time of passing of the award to ascertain his/their financial condition? (Clause 27)
1. This judgment -cum- award shall decide the petition under Section 166 and 140 of Motor Vehicle Act 1988 as amended up to date (hereinafter referred to as the 'Act') filed by the petitioners for grant of compensation for the death of the deceased Sh. Prakash Chand in the road vehicular accident.
2. Brief facts of the case are that on 21.11.2015, the deceased Sh. Prakash Chand was returning back towards his residence from his work place at Moti Nagar, Delhi on motorcycle bearing registration No. DL-8S-AH-8037 which was being driven by the deceased with due care and caution observing all the traffic rules. It has been further stated that at about 04:30 AM, when the deceased reached at Rohtak Road, Near Metro Pillar No. 229, Avtar Enclave, Paschim Vihar, New Delhi, all of a sudden, the offending vehicle I.e. Maruti Swift Car bearing registration No. DL-4C-AA-3884 which was being driven by its driver in a rash and negligent manner and also under the influence of liquor, came and hit the motorcycle of the deceased with a great force from behind. It has been further stated that after the accident, the deceased alongwith his motorcycle was dragged towards the service lane side. It has been further stated that as a result of which, the deceased was struck against the street light pole and due to that, he was squeezed in between the abovesaid street light pole and abovesaid offending vehicle which resulted in the unfortunate and premature death of the deceased on the spot.
3. It has been further stated that the body of the deceased was taken to Sanjay Gandhi Memorial Hospital for autopsy where his autopsy was conducted.
MACT Case No. 476676/16 Page No. 5/214. As a result of the abovesaid accident, as per the case of the petitioners, FIR No. 793/2015 dated 21.11.2015: P.S. Paschim Vihar u/s 279/304A IPC, Section 5/181 and 146/196 of MV Act was registered against the respondent No.1.
5. It has been further stated that at the time of accident, the deceased was 43 years of age. It has been further stated that the deceased was doing a private job with Audi Showroom at Moti Nagar Delhi and earning Rs. 15,000/- per month.
6. It has been further stated that the deceased is survived by his wife, four unmarried daughters and old age parents. It has been further stated that the petitioner no.1 is the wife of the deceased, the petitioners No.2 to 5 are the unmarried daughters of the deceased, the petitioner No. 6 is the father of the deceased and the petitioner no. 7 is the mother of the deceased.
7. In total, the petitioners have claimed a sum of Rs.30,00,000/- (Rupees Thirty Lacs Only) on account of compensation.
8. As per the DAR filed by the IO, the offending vehicle was without any insurance on the date of the accident and that is why section 5/181 and 146/196 of MV Act were added in the FIR.
9. It has been further stated that the respondent no.1 being the driver of the offending vehicle, the respondent no.2 being the registered owner of the offending vehicle and the respondent no.3 being the present owner of the offending vehicle are jointly liable to pay the compensation to the petitioner.
10. Reply to the DAR has been filed by the respondent No.2 i.e. registered owner of the offending vehicle stating therein that the answering respondent had already sold out the offending vehicle to one Sh. Santosh Kumar s/o Sh. Mohan Lal R/o B-4/171, J.J. Colony, Samaipur, Bhalsava, North-West, Delhi on 07.10.2015. It has been further stated that at the time of selling out the offending vehicle, the respondent no.3 i.e. the present owner had also executed an affidavit to the effect that w.e.f. 07.10.2015, all the liability pertaining to the MACT Case No. 476676/16 Page No. 6/21 offending vehicle shall be that of the present owner. It has been further stated that the offending vehicle was not in the possession of the answering respondent since 07.10.2015 and the answering respondent has no liability from the said date. It has been further stated that the answering respondent has been falsely implicated in the present matter. It has been prayed that the present claim petition be dismissed.
11. The respondents No.1 & 3 have not filed any written statement/reply.
12. After hearing the arguments and going through the pleadings of the parties, the following issues were framed by this Tribunal on 27.04.2017:-
1. Whether the deceased Prakash Chand suffered fatal injuries in the accident that took place on 21.11.2015 at about 4.30 am at Service Lance, Rohtak Road, near Metro Pillar No. 229, Avtar Enclave, Paschim Vihar due to rash and negligent driving of Car bearing No. DL-4CAA 3884 by the respondent no.1 Sh. Deepak, the car being owned by the respondent No.2 i.e. Sh. Yogesh Bagari and the owner in possession of the car is respondent no.3 i.e. Sh. Santosh Kumar and insured with the respondent No.4? OPP.
2. Whether the petitioner is entitled to compensation, if so, at what amount and from whom? OPP.
3. Relief.
13. In order to establish their claim, the petitioners have examined the petitioner No.1 Smt. Sushma as PW-1 and in her evidence by way of affidavit, she has reiterated and reaffirmed the stand as taken by the petitioners in the present claim petition. She has filed on record her affidavit as Ex. PW1/A; Photocopy of Ration Card as Ex. PW1/1(OSR); photocopy of her Election ID Card as Ex. PW1/2; photocopy of Election ID of the deceased as Ex. PW1/3(OSR); photocopy of Aadhar of her daughter Mamta as Ex. PW1/4(OSR); photocopy of Aadhar Card of her daughter Poonam as Ex. PW1/5(OSR); photocopy of Aadhar Card of her daughter Kumkum as Ex. PW1/6(OSR); photocopy of Aadhar Card of her daughter MACT Case No. 476676/16 Page No. 7/21 Anju as Ex. PW1/7(OSR); Photocopy of Aadhar Card of Sh. Ram Kripal Ojha, father of the deceased as Ex. PW1/8(OSR); photocopy of election ID card of Smt. Meena Devi, mother of deceased as Mark PW1/9; photocopy of 10 th class pass certificate of her deceased husband as Ex. PW1/10.
14. In the cross examination done by ld. Counsel for the respondent No.2, PW-1 has stated that her husband was working in a showroom but she does not remember the place of working. PW-1 has further stated that her husband was earning Rs. 15,000/- per month, although, she has not placed on record any proof of the same.
15. PW-1 has further stated that the deceased has left behind her as his widow and four unmarried daughters who are the petitioners in the present claim petition. PW-1 has further stated that the deceased has also left behind his father and mother who are also the petitioners in the present petition. PW-1 has admitted it to be correct that in the ration card which has been placed on record, the name of her father-in-law and mother-in-law have not been mentioned.
16. PW-1 has further stated that her deceased husband used to go to work at about 7:00 AM and used to come to home at about 7:00PM or 11:00 PM depending upon the work. PW-1 has further stated that she was not an eye witness to the accident.
17. The respondent No.2 has examined himself as R2W1 and in his evidence by way of affidavit, Ex. R2W1/A on record, he has reiterated and reaffirmed the stand as taken by him in the written statement/reply. R2W1 has relied upon the copy of the sale and purchase affidavit dated 07.10.2015 as Ex. R2W1/1(OSR) and copy of the undertaking dated 07.10.2015 as Ex. R2W1/2(OSR).
18. In the cross examination done by ld. Counsel for the petitioner, R2W1 has stated that he is 12 th pass from NIOS, Delhi. R2W1 has further stated that he is studying in B.com, 2nd year from Delhi University. R2W1 has further stated that he had purchased his alleged second hand vehicle from previous owner in the year MACT Case No. 476676/16 Page No. 8/21 2015. R2W1 has further stated that he does not remember the exact date and time period for keeping alleged offending vehicle. By way of volunteer, R2W1 states that he had kept it for about one year in his possession. R2W1 has further stated that he had read the contents of documents Ex. R2W1/1 at the time of execution of the same. R2W1 has admitted it to be correct that the contents of Ex. R2W1/1 are true and correct. R2W1 has further stated that the document Ex. R2W1/2 is in the handwriting of his cousin brother. R2W1 has further stated that he had also read the contents of Ex. R2W1/2. R2W1 has admitted it to be correct that he has received the consideration amount of Rs. 1 lac as stated in Ex. R2W1/2 but he has not filed any receipt of the same. R2W1 has also admitted it to be correct that Ex. R2W1/1 is only affidavit and not an agreement.
19. R2W1 has further stated that he has not placed on record any other documents except Ex. R2W1/1 and Ex. R2W1/2. R2W1 has admitted it to be correct that even as on date, he is the registered owner of the alleged offending vehicle. R2W1 has admitted it to be correct that at the time of handing over the possession of the alleged offending vehicle to the purchaser, i.e. the respondent No.2, he handed over the RC, pollution and other relevant documents except insurance as there was no insurance of the vehicle at the time of handing over the same.
20. R2W1, in the cross examination, has categorically admitted that even on the date of his deposition before the court, he was the registered owner of the offending vehicle.
21. The respondent no.2 has further examined IO SI Sandeep Kumar as R2W2 and this witness has stated that the investigation in the present case was done by him. R2W2 has further stated that he had reached the spot of the accident at about 5.30 in the morning. R2W2 has further stated that he met one public witness, who was a guard at the spot but the name of the public witness, he was not remembering. R2W2 has further stated that the driver of the offending vehicle also sustained injuries in the accident and he was taken to the hospital by PCR MACT Case No. 476676/16 Page No. 9/21 Van. R2W2 has further stated that the statement of the accused was not recorded by him. R2W2 has further stated that on the basis of the statement of eye witness, he came to know that the accident in question was caused on account of the negligence of the offending vehicle. R2W2 has further stated that he had tried to find out the CCTV camera etc near the spot of the accident but the same was not available. R2W2 has further stated that besides the eye witness, he was told by one more person who had helped the occupants of the vehicle to come to the conclusion that the accident in question was caused by the negligence of the offending vehicle but the name of that person, he did not remember. R2W2 has admitted it to be correct that he has shown Sh. Santosh Kumar to be the owner of the offending vehicle.
22. In the cross examination done by ld. Counsel for the petitioners, R2W2 has stated that when he reached at the spot, the offending vehicle was found by him at the spot. R2W2 has further stated that the driver of the offending vehicle was arrested by him later on when he came to the police station. R2W2 has further stated that the offending vehicle till date has not got been released on superdari. R2W2 has further stated that he has already filed the charge sheet in the criminal matter pertaining to FIR bearing No. 793/15 PS Paschim Vihar. R2W2 has further stated that he was told by the driver of the offending vehicle that Santosh was the owner of the offending vehicle. R2W2 has further stated that he had not seen any documents of ownership of the offending vehicle in favour of Santosh Kumar. R2W2 has further stated that he has filed the RC of the offending vehicle on record. R2W2 has further stated that so far as he remembers, in the RC of the offending vehicle, the name of the owner has been mentioned as Yogesh. R2W2 has admitted it to be correct that Santosh is not the owner of the offending vehicle and rather Yogesh is the owner of the offending vehicle.
23. No evidence has been led by the rest of the respondents.
24. I have thoroughly gone through the testimony of the witnesses and perused the record. I have also given my thoughtful consideration to the MACT Case No. 476676/16 Page No. 10/21 arguments addressed by learned counsel for the petitioners and Ld. Counsel for the respondent No.2 . The petitioners have also been examined under the MCTAP and I have considered the statement of the petitioners under MCTAP as well.
My findings on various issues are as under :-
ISSUE NO. 125. The present petition has been filed by the petitioners u/s 140 & 166 M. V. Act and the onus is upon the petitioners to prove the rash and negligent act of the respondent No.1.
26. The petitioners have examined the petitioner No. 1 as PW-1 and she has well explained the mode and manner of accident. She has reaffirmed and reiterated the averments made in the petition. During her entire cross examination, nothing has come out so as to discredit her testimony.
27. The respondent no.1 who is the Driver of the offending vehicle has not led any evidence. The respondent No.3 also has not led any evidence. To my mind, the testimony of PWs, remain uncontroverted and unchallanged so far as respondent No.1 & 3 are concerned.
28. The respondent No.2 has led the evidence but in the reply filed on record he states that he is not aware as to by whom, the offending vehicle was being driven on the date of the accident. His sole defence is that prior to the date of the accident, he had sold the offending vehicle to the respondent no.3. As such, the testimony of R2W1 also is not of any help to the respondents so far as the negligence aspect of the matter is concerned. I have no hesitation to hold that the respondents have utterly failed to prove on record that there was no negligence on the part of the respondent No.1 and that the accident in question was caused on account of the own negligence of the deceased.
29. Ld. Counsel for the petitioners has claimed that in the case in hand, the charge-sheet pertaining to FIR No. 793/2015 dated 21.11.2015: P.S. Paschim MACT Case No. 476676/16 Page No. 11/21 Vihar u/s 279/304A IPC and Section 5/181 and 146/196 of MV Act was registered against the respondent No.1.
30. In Bimla Devi & Ors vs. Himachal Road Transport Corporation & ors (2009) 13 SC 530, in Kaushnumma Begum and others v/s New India Assurance Company Limited, 2001 ACJ 421 SC, in National Insurance Co. Ltd. vs. Pushpa Rana cited as 2009 ACJ 287, it has been held that the negligence has to be decided on the touchstone of preponderance of probabilities and a holistic view is to be taken. It has been further held that the proceedings under the Motor Vehicle Act are not akin to the proceedings in a Civil Suit and hence, strict rules of evidence are not applicable.
31. In the light of the abovesaid discussion, to my mind, the petitioners have been able to prove issue No.1 in their favour and accordingly, the issue No.1 is decided in favour of the petitioners.
COMPENSATION / ISSUE NO. 232. The petitioner No.1 has filed on record copy of 10 th class certificate of the deceased as Ex. PW1/10(OSR) in which the date of birth of the deceased has been mentioned as 05.02.1972. The date of accident is 21.11.2015. Accordingly, the age of the deceased is taken as 43 years on the date of accident.
33. As per the petition, the deceased was doing the private job with Audi Showroom, Moti Nagar, New Delhi and earning Rs.15,000/- per month. But the petitioner No.1 i.e. PW-1 in her cross-examination has stated that she has not filed on record any proof regarding the salary of the deceased. As such, to my mind, the income of the deceased can very well be assessed on the basis of the chart available in the Minimum Wages Act of a Matriculate person. The petitioners have filed on record the copy of the 10th class pass certificate of the deceased in the form of Ex. PW1/10. The date of accident is 21.11.2015 on which the minimum wages for a Matriculate person for the relevant period were Rs 11,154/- per month.
34. The petitioners have been examined on 13.09.2018 under MCTAP MACT Case No. 476676/16 Page No. 12/21 and their statements have also been considered by this Tribunal.
35. In the claim petition and in the DAR also, it has been mentioned that the petitioner no.1 is the wife of the deceased, the petitioners No.2 to 5 are the unmarried daughters of the deceased, the petitioner No. 6 is the father of the deceased and the petitioner no. 7 is the mother of the deceased. No dispute has been raised by the respondents so far as the abovesaid seven legal heirs of the deceased are concerned.
36. As such, there were only seven legal heirs / dependents on the deceased at the time of accident. In terms of the judgment of the Hon'ble Supreme Court of India in 'Sarla Verma Vs. DTC decided on 15.4.2009 in C.A. No. 3483/08', the deceased might have been spending one- fifth of Rs. 11,154/- on his personal expenses as he had left behind seven dependents on the deceased. Therefore, after deducting one- fifth towards personal expenses, the loss of dependency per month comes out to Rs. 8923/- = [ Rs. 11,154/- less Rs.2231( after rounding of Rs. 2230.8) ].
37. The Hon'ble Apex Court of the land in the latest judgment which has arisen out of SLP (Civil) No. 25590 of 2014 titled as National Insurance Company Limited vs. Pranay Sethi & ors decided on 31.10.2017 has held as under:-
"61. In view of the aforesaid analysis, we proceed to record our conclusions:-
(i) The two-Judge Bench in Santosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench.
(ii) As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent.
(iii) While determining the income, an addition of 50% of actual salary to the income of the deceased MACT Case No. 476676/16 Page No. 13/21 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 self-employed or on a fixed salary, an addition 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 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 hereinbefore.
(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 funeral 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."
The Hon'ble High Court of Delhi in MAC Appeal No. 798/2011 titled as Bajaj Allianz General Insurance company Ltd. vs. Pooja & ors decided on 02.11.2017 has held that even in the cases where the income of the deceased is calculated on the basis of the minimum wages, the benefit of future prospects is to be given in accordance with the abovesaid guidelines issued by the Hon'ble Supreme Court of India in the abovestated authority as per the rule applicable to self employed or privately employed persons.
After going through the facts and circumstances of the present case MACT Case No. 476676/16 Page No. 14/21 and the aforesaid case law laid down, I hereby grant 25% future prospects on the income of the deceased.
Thus, the monthly income of the deceased comes to Rs. 11,154/- (Rs. 8923/- + Rs.2231/- (after rounding off Rs. 2230.75/-) which is 25% of Rs. 8923/-).
The appropriate multiplier applicable is '14' ( for the age group of 41 years to 45 years) as mentioned in Sarla Verma's judgment (Supra). Hence, the total loss of dependency comes out to be Rs. 18,73,872/- = (Rs. 11,154x 12 x 14).
38. The Hon'ble Supreme Court of India in, "National Insurance Company Ltd. vs. Pranay Sethi & Ors. in Special Leave Petition (Civil) No.25590 of 2014 has granted a sum of Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- on account of loss of estate, loss of consortium and funeral expenses respectively. The aforesaid amounts are to be enhanced at the rate of 10% in every three years.
39. In view of the abovesaid judgment, I hereby award Rs. 15,000/- towards loss of estate; Rs.40,000/- towards loss of consortium and Rs.15,000/- towards funeral charges.
40. Therefore, in total, I hereby award a sum of Rs. 19,43,872/- (Rupees Nineteen Lacs Forty Three Thousand Eight Hundred and Seventy Two Only) =( Rs. 18,73,872/- + Rs. 70,000/-) in favour of the petitioners and against the respondents.
R E L I EF / ISSUE NO.3
41. I award Rs. 19,43,872/- (Rupees Nineteen Lacs Forty Three Thousand Eight Hundred and Seventy Two Only) as compensation with interest at the rate of 9% per annum including interim award, if any from the date of filing the DAR/claim petition i.e. 16.03.2016 till the date of the payment of the award amount, in favour of the petitioners and against the respondents MACT Case No. 476676/16 Page No. 15/21 on account of their liability being joint and several. The petitioner No. 1, the wife of the deceased shall have 40% share in the award amount, the petitioner No.2 to 5 are the unmarried daughters of the deceased shall have 10% each share in the award amount and the petitioners No. 6 & 7 are the old age parents of the deceased shall have 10% each share in the award amount.
41. This Tribunal is in receipt of the letter dated 08.11.2017 from Delhi State Legal Services Authority, which is annexed with the latest MCTAP as approved by the Hon'ble High Court of Delhi. The Hon'ble High Court of Delhi in Para no. 28 of new MCTAP has held as under:-
"Para no. 28 The Claims Tribunal shall, depending upon the financial status and financial need of the claimant (s), release such amount as may be considered necessary and direct the remaining amount to be kept in fixed deposits in phased manner (for example, if a sum of Rs.5,50,000/- has been awarded to the claimant, Rs.50,000/- may be released immediately and the remaining amount of Rs. 5,00,000/- may be kept in 10 fixed deposits of Rs.50,000/- each for a periods of six months, one year, one and half years, two years and so on till five years or one year, two years, three years and so on till ten years). The Claims Tribunal may also consider imposing following conditions with respect to the fixed deposits:-
(i) The interest on the fixed deposits be paid monthly to the Claimant(s).
(ii) The monthly interest be credited automatically in the saving account of the claimant (s).
(iii) Original fixed deposit receipts be retained by the bank in safe custody. However, a passbook of the FDRs be given to the claimant (s) along with the photocopy of the FDR. At the time of maturity, the fixed deposit amount shall be automatically MACT Case No. 476676/16 Page No. 16/21 credited in the savings bank account of the Claimant(s).
(iv) No cheque book be issued to the claimant (s) without permission of the Court. However, a photo identity card be issued to the claimant (s) and the withdrawal be permitted upon production of the identity card.
(v) No loan, advance or withdrawal be allowed on the fixed deposits without permission of the Court.
(vi) The Bank shall not permit any joint name (s) to be added in the savings bank account or fixed deposit accounts of the victim.
(vii) Half yearly statement of account be filed by the Bank in the Tribunal".
Keeping in view the entirety of the facts and circumstances involved in the present case and the abovesaid guidelines laid down by the Hon'ble High Court of Delhi, the respondents no. 1 & 2 are directed to deposit the amount of Rs. 19,43,872/- (Rupees Nineteen Lacs Forty Three Thousand Eight Hundred and Seventy Two Only) as stated herein above with SBI, Tis Hazari Courts, Delhi, out of which the amount of Rs. 1,43,872/- shall be released to the petitioner No.1 keeping in view the submissions of the Ld. Counsel for the petitioners and that of the respondents as well and in the entirety of the facts.
The rest of the amount of Rs. 18,00,000/- shall be kept in 36 equal FDR's for an amount of Rs. 50,000/- each for a period of six month, one year, one and a half years, two years, two and a half years, three years and so on till with cumulative interest in the name of the petitioners in the aforesaid shares.
The abovesaid conditions as laid down in MCTAP shall be adhered to by SBI, Tis Hazari Courts, Delhi in respect to the FDR's.
As stated herein above, since the petitioners No.3 to 5 are the minors, the amount of their FDRs shall not be released until they reach MACT Case No. 476676/16 Page No. 17/21 the age of majority.
APPORTIONMENT OF LIABILITY
43. As per the DAR, the offending vehicle was without any insurance on the date of the accident. The driver i.e. the respondent No.1 has also been challened u/s 3/181 and 146/196 of MV Act.
44. Only the registered owner is liable and the present owner is not liable, in the light of the recent law settled by the Hon'ble Apex Court of the Land. While holding so, I am fortified by the following observations of the Hon'ble Apex Court of the Land in the authority titled as Naveen Kumar Vs. Vijay Kumar and Ors. Cited as Civil Appeal no. 1427 of 2018 wherein in Para no. 12, the Hon'ble Supreme Court of India has held as under:-
Para no. 12 .... The consistent thread of reasoning which emerges from the above decisions is that in view of the definition of the expression 'owner' in Section 2(30), it is the person in whose name the motor vehicle stands registered who, for the purposes of the Act, would be treated as the 'owner'. However, where a person is a minor, the guardian of the minor would be treated as the owner. Where a motor vehicle is subject to an agreement of hire purchase, lease or hypothecation, the person in possession of the vehicle under that agreement is treated as the owner. In the situation such as the present where the registered owner has purported to transfer the vehicle but continues to be reflected in the records of the registering authority as the owner of the vehicle, he would not stand absolved of liability. Parliament has consciously introduced the definition of the expression 'owner' in Section 2(30), making a departure from the provisions of Section 2(19) in the earlier Act of 1939. The principle underlying the provisions of Section 2(3) is that the victim of a motor accident or, in the case of a death, the legal heirs of the deceased victim should not be left in a state of uncertainty. A claimant for compensation ought not to be burdened with following a trial of successive transfers, which are not registered with the registering authority. To hold otherwise would be defeat the salutary object and purpose of the Act. Hence, the interpretation to be placed must facilitate the fulfillment of the object of the law. In the present case, the First respondent was the 'owner' of the vehicle involved in the MACT Case No. 476676/16 Page No. 18/21 accident within the meaning of Section 2(30). The liability to pay compensation stands fastened upon him. Admittedly, the vehicle was uninsured. The High Court has proceeded upon a misconstruction of the judgments of this Court in Reshma and Purnya Kala Devi.
45. In the light of the ratio of the abovestated authority, to my mind, the respondent No.3 cannot be held liable. Only the respondents No.1 & 2 are liable to pay the amount of the compensation to the petitioner and the liability of the respondents No.1 & 2 is joint and several.
46. The respondents No.1 & 2 are hereby directed to deposit the award amount in favour of the petitioner with SBI, Tis Hazari Courts, Delhi within a period of 30 days from the date of passing of this award together with the interest as stated herein above under the intimation to this court and under intimation to the petitioner as well. In case of any delay, it shall be liable to pay interest at the rate of 12% per annum for the period of delay.
A separate file be prepared for compliance report by the Nazir and put up the same on 30.10.2018.
A copy of this award be given to the respondents as well as to the petitioners free of cost.
A copy of this award be sent to the concerned Ld. Metropolitan Magistrate as well as DSLSA as per the provisions of the MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE (MCTAP). Digitally signed by RAJ KUMAR File be consigned to Record Room. RAJ Date:
KUMAR 2018.09.25
12:51:35
+0530
Announced in the open court ( RAJ KUMAR )
On 22nd of September, 2018 P.O. MACT (WEST-01)
Delhi (22.09.2018)
MACT Case No. 476676/16 Page No. 19/21
FORM -IVA
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN DEATH CASES
1. Date of accident. : 21.11.2015
2. Name of the deceased : Sh. Prakash Chand
3. Age of the deceased : 43 years
4. Occupation of the deceased : Private Job
5. Income of the deceased : Rs.11,154/- as per Minimum Wages.
6. Name, age and relationship of legal representative of deceased:-
S. Name Age Relation
No.
(I) Smt. Sushma 37 years Wife of the deceased
(ii) Ms. Mamta 19 years Daughter of the deceased
(iii) Ms. Poonam 15 years Daughter of the deceased
(iv) Baby Kumkum 13 years Daughter of the deceased
(v) Baby Anju 9 years Daughter of the deceased
(vi) Sh. Ramkirpal 80 years Father of the deceased
(vii) Smt. Mina Devi 75 years Mother of the deceased
Computation of Compensation
Sr. No. Heads Awarded by the Claim Tribunal
7. Income of the deceased(A) Rs. 11,154/-
8. Add-Future Prospects (B) 25%
9. Less-Personal expenses 1/5 rd deduction has been done
of the deceased(C)
10. Monthly loss of Rs.11,154/-
dependency[(A+B)-C=D]
11. Annual loss of dependency Rs.1,33,848/-
MACT Case No. 476676/16 Page No. 20/21
(Dx12) (Rs. 11,154/- x 12)
12. Multiplier(E) 14
13. Total loss of dependency Rs.18,73,872/-
(Dx12xE= F) (Rs.11,154/-x12 x 14)
14. Medical Expenses(G) NIL
15. Compensation for loss of NIL
love and affection(H)
16. Compensation for loss of Rs. 40,000/-
consortium(I)
17. Compensation for loss of Rs.15,000/-
estate(J)
18. Compensation towards Rs.15,000/-
funeral expenses(K)
19. TOTAL COMPENSATION Rs. 19,43,872/-
(F+G+H+I+J+K=L)
20. RATE OF INTEREST 9% per annum
AWARDED
21. Interest amount up to the Rs. 4,40,288.16 (2 years 6
date of award (M) months and 6 days)
22. Total amount including Rs. 23,84,160.16
interest (L + M)
23. Award amount released Rs. 1,43,872/-
24. Award amount kept in Rs.18,00,000/-
FDRs
25. Mode of disbursement of Mentioned in the award
the award amount to the
claimant (s). (Clause 29)
26. Next date for compliance 30.10.2018
of the award. (Clause 31)
Digitally signed
RAJ by RAJ KUMAR
KUMAR Date: 2018.09.25
12:51:43 +0530
(RAJ KUMAR)
P.O.MACT (WEST-01)
Delhi (22.09.2018)
MACT Case No. 476676/16 Page No. 21/21
MACT Case No. 476676/16
22.09.2018
Present: None
Award has been passed separately.
File be consigned to Record Room.
A separate file be prepared for compliance report by the Nazir and put up the same on 30.10.2018.
A copy of this award be sent to the concerned Ld. Metropolitan Magistrate as well as DSLSA as per the provisions of the MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE (MCTAP).
(RAJ KUMAR) P.O.MACT (WEST-01) Delhi (22.09.2018) MACT Case No. 476676/16 Page No. 22/21