Delhi District Court
Iti Goyal & Ors. vs . Vijay Kumar & Anr . on 12 October, 2018
Iti Goyal & ors. vs. Vijay Kumar & anr .
IN THE COURT OF SH. PAWAN KUMAR JAIN,
JUDGE, MACT-1 (CENTRAL), THC, DELHI.
MACT No. 522/2017
Unique Case ID No. DLCT01-006305-2017
1. Smt. Iti Goyal
W/o Late Sh. Himanshu Goyal,
2. Baby Sanvi Goyal
D/o Late Sh. Himanshu Goyal
3. Baby Chaynika Goel,
D/o Late Sh. Himanshu Goyal
(Petitioner No. 2 & 3 being minor through their mother/natural
guardian Smt. Iti Goyal)
All resident of:
I-95, First Floor, Ashok Vihar
Phase-I, Delhi-110052.
4. Smt. Madhubala
W/o Sh. Ashok Kumar Gupta
5. Sh. Ashok Kumar Gupta
W/o Late Sh. Tejpal Goyal
Petitioner No. 4 & 5 are Resident of:
A-65, Upper Ground, Gali No. 2, Part-1,
Krishan Kunj Extension, Laxmi Nagar, Shakar Pur
Baramad, Shakarpur East Delhi, Delhi-110092.
........Petitioners
VERSUS
MACT No.522/17 Page No. 1 of 34
Iti Goyal & ors. vs. Vijay Kumar & anr .
1. Sh. Vijay Kumar
S/o Sh. Ram Phal
R/o 3/3 Block A, Kaushik Enclave,
Burari, New Delhi-110084.
...........Respondent No.1
(Driver/Owner)
2. Royal Sundaram Alliance Insurance Co. Ltd.
1505, 15th Floor, Ambadeep Building, Connaught Place, New Delhi.
...........Respondent No.2
(Insurer)
Date of filing of claim petition : 07.02.2017
Date of filing of DAR : 25.04.2017
Arguments heard on : 28.09.2018
Date of passing of Award : 12.10.2018
Present: Sh. S. K. Singh, Advocate, counsel
for the petitioners
Sh. Sanjay Aggarwal, Advocate, counsel for respondent no.1 Sh. M. P. Sahi, Advocate, counsel for respondent no.2 FORM- V COMPLIANCE OF THE PROVISIONS OF THE MODIFIED CLAIMS TRIBUNAL AGREED PROCEXDURE TO BE MENTIONED IN THE AWARD MACT No.522/17 Page No. 2 of 34 Iti Goyal & ors. vs. Vijay Kumar & anr .
1. Date of the accident 28.09.2016
2. Date of intimation of the accident by 01.10.2016 the Investigating Officer to the Claims Tribunal. (Clause 2)
3. Date of intimation of the accident by 11.11.2016 the Investigating Officer to the Insurance Company. (Clause 2)
4. Date of filing of Report under Section Not mention in 173 Cr.P.C. before the Metropolitan DAR Magistrate. (Clause 10)
5. Date of filing of Detailed Accident 25.04.2017 Information Report (DAR) by the Investigating Officer before Claims Tribunal. (Clause 10)
6. Date of service of DAR on the 25.04.2017 Insurance Company. (Clause 11)
7. Date of service of DAR on the 25.04.2017 claimant(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 10.05.2017 MACT No.522/17 Page No. 3 of 34 Iti Goyal & ors. vs. Vijay Kumar & anr .
Officer by the Insurance Company.
(Clause 20)
13. Name, address and contact number of Sh. M. P. Sahi, the Designated Officer of the Insurance Advocate Company. (Clause 20) Ch. No. 402, Lawyers Chamber, Dwarka, Court Complex Mob. No. 9910153210
14. Whether the Designated Officer of the No Insurance Company submitted his report within 30 days of the DAR?
(Clause 22)
15. Whether the Insurance Company Yes admitted the liability? If 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 No 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 -
the offer of the Insurance Company. (Clause 24)
18. Date of the award. 12.10.2018
19. Whether the award was passed with No 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) MACT No.522/17 Page No. 4 of 34 Iti Goyal & ors. vs. Vijay Kumar & anr .
21. Date of order by which claimant(s) 06.04.2018 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) Passbooks produced the passbook of their savings produced without bank account near the place of their endorsement residence along with the endorsement, PAN Card and Adhaar Card? (Clause
18)
23. Permanent Residential Address of the As mentioned in Claimant(s)(Clause 27) award
24. Details of savings bank account(s) of Iti Goyal the claimant(s) and the address of the Central Bank of bank with IFSC Code.(Clause 27) India, Sadar Bazar, Delhi A/C no.
3681191145, IFSC-
CBIN0280293 Sanvi Goyal Central Bank of India, Sadar Bazar, Delhi A/C no.
3681192070, IFSC-
CBIN0280293 Chaynika Goel Central Bank of India, Sadar Bazar, Delhi A/C no.
3681197056, IFSC-
CBIN0280293 MACT No.522/17 Page No. 5 of 34 Iti Goyal & ors. vs. Vijay Kumar & anr .
25. Whether the claimant(s) savings bank Yes account(s) is near his place of residence?(Clause 27) 26 Whether the claimant(s) were Yes on examined at the time of passing of the 31.05.2018 award to ascertain his/their financial condition? (Clause AWARD:
1. Detailed Accident Report (hereinafter referred to as DAR) has been filed in case FIR No.355/2016 for the offence punishable under Sections 279/304A IPC, PS Darya Ganj, Delhi in relation to fatal injuries caused to Himanshu Goyal in a motor vehicular accident that took place on 28.09.2016 within the jurisdiction of PS Darya Ganj, Delhi.
(i) Later on, petitioners also filed a claim petition u/s. 166 r/w Section 140 of Motor Vehicle Act, 1988 (in short M.V. Act) claiming a compensation of ` 1 crore.
2. Facts in brief as emerged from the DAR and claim petition are that on 28.09.2016 deceased was going on his scooter. At about 9:20 PM when he reached Delhi Gate Red Light, Darya Ganj, offending car bearing registration No. DL-1RTA-6549 came from the side of Asaf Ali Road at high speed in a rash and negligent manner and hit the scooter of deceased from behind after jumping the Red light. It was alleged that at the time of accident, car was being driven in a zig-zag manner at very high speed. Due to the accident, MACT No.522/17 Page No. 6 of 34 Iti Goyal & ors. vs. Vijay Kumar & anr .
scooterist fell down and sustained multiple injuries. Though he was taken to hospital but he succumbed to his injuries on 13.10.2016.
(ii) It was alleged that respondent no.1 is the owner and driver of the car whereas car was insured with respondent no.2.
3. Both the respondents contested the DAR/ claim petition by filing their separate written statement.
(i) Respondent no. 1 took the plea that no accident had taken place with his car. Infact the accident was caused by some unknown vehicle, but petitioners falsely implicated him in this case.
(ii) Respondent no. 2 admitted that the car was duly insured with it and filed a legal offer to the sum of ` 16,13,000/, but the same was not acceptable to the petitioners.
4. On the basis of pleadings of both the parties, vide order dated 07.09.2017, following issues were framed:-
(i) Whether the deceased Himanshu Goyal had died of injuries sustained by him in an accident which took place on 28.09.2016 within the jurisdiction of PS Darya Ganj due to rash and negligent driving of vehicle MACT No.522/17 Page No. 7 of 34 Iti Goyal & ors. vs. Vijay Kumar & anr .
bearing Regn. no. DL-1RTA-6549 driven by respondent no. 1?
(ii) Whether the petitioners are entitled to any compensation, if so, to what amount and from whom?
(iii) Relief.
5. In order to prove their case, petitioners examined following witnesses:
PW1 Smt. Iti Goyal, wife of deceased PW2 Sh. Maheshwar Prasad, eye witness PW3 Sh. Abhinev Jit Arya, Inspector from Income Tax, Delhi.
(i) In rebuttal, respondent No.1 examined himself as R1W1 whereas respondent no.2 examined Sh.
Sukhdev as R2W1.
6. On completion of evidence led by both the parties, statement of petitioners were recorded on 31.05.2018, in compliance of clause 27 of FAO No. 842 of 2003 titled Rajesh Tyagi & ors. vs. Jaivir Singh & ors. decided by Hon`ble High Court of Delhi on December 15, 2017 .
7. I have heard rival submissions advanced by counsel for petitioners and respondents, perused the record MACT No.522/17 Page No. 8 of 34 Iti Goyal & ors. vs. Vijay Kumar & anr .
carefully and gave my thoughtful consideration to their contentions.
8. My issue-wise findings are as under:-
Issue No. 1:
Whether the deceased Himanshu Goyal had died of injuries sustained by him in an accident which took place on 28.09.2016 within the jurisdiction of PS Darya Ganj due to rash and negligent driving of vehicle bearing Regn. no. DL-1RTA-6549 driven by respondent no. 1?
FINDING:-
9. Learned counsel appearing for respondent no.1 contended that no accident had taken place with the car of respondent no.1 and he has been falsely implicated in this case. However, counsel appearing for respondent no.2 did not raise any serious contention on the aspect of rashness and negligence of respondent no.1.
(i). Learned counsel appearing for petitioners refuted the contention raised by counsel for respondent no.1 by arguing that there are ample evidence on record to prove rashness or negligence on the part of respondent no.1.
(ii). In this regard, testimony of PW2 and R1W1 MACT No.522/17 Page No. 9 of 34 Iti Goyal & ors. vs. Vijay Kumar & anr .
are relevant.
(iii). PW2 in his examination-in-chief reiterated the version of petitioners by testifying that on 28.09.2016, he was going on foot and when at about 9.20 PM, he reached Delhi Gate Red Light Darya Ganj, he saw that offending car came from Asaf Ali Road, which was going towards Raj Ghat side, at fast speed in a rash or negligent manner and after jumping the red light, car hit the scooter of deceased from behind. Consequently, scooterist fell down and sustained multiple injuries. In his cross-examination, he clarified that the accident had taken place in the extreme right lane of the road and scooterist was wearing helmet. No doubt, PW2 did not inform the police, but this itself is not sufficient to discard his testimony. He categorically deposed that 3-4 police officials came there and they took the injured to hospital. This shows that someone else informed the police. He further testified that after one week of the accident, police official contacted him and recorded his statement. During cross-examination, nothing could be extracted, which may raise reasonable suspicion over his presence at the spot. In the absence of any cogent evidence, this Tribunal has no reason to disbelieve the deposition of PW2.
(iv). R1W1 (respondent no.1) in his examination- in-chief testified that no accident was caused by his car and since unknown vehicle fled away from the spot, he took the injured to hospital in his car.
MACT No.522/17 Page No. 10 of 34Iti Goyal & ors. vs. Vijay Kumar & anr .
(v). In his cross-examination, he admitted that FIR was registered against him and he was chargesheeted for causing the accident and he is facing criminal trial. He also admitted that he had not made any complaint against the police official to the effect that he has been falsley implicated in this case.
(vi). From the testimony of R1W1, it is clear that he was present at the spot at the time of accident and if the accident was not caused by his car, he would have disclosed the vehicle by which the accident was caused but he failed to do so. Further, after the investigation, police concluded that the accident was caused by his car. During mechanical inspection, fresh damages were found on the front portion of the car, which corroborates the version of PW2. During inquiry, respondent no.1 did not explain how damages were found in his car when no accident was caused by his car. In these circumstances, the testimony of R1W1 to the extent that no accident was caused by his car does not inspire any confidence.
(v). In view of the above discussion, I am of the opinion that testimony of PW2 is sufficient to hold that the accident had taken place due to the rashness or negligence of respondent no.1. Accordingly, Issue no.1 is decided in favour of the petitioners and against the respondents.
MACT No.522/17 Page No. 11 of 34Iti Goyal & ors. vs. Vijay Kumar & anr .
Issue No. 2:
Whether the petitioners are entitled to any compensation, if so, to what amount and from whom?
10. Before proceeding further, I deem it appropriate to refer the judgment titled National Insurance Company Ltd. vs. Pranay Sethi & ors. SLP (Civil) No. 25590 of 2014 decided by the Constitution Bench of Supreme Court on October 30, 2017. Hon`ble Bench reconsidered all the previous judgments relating to just compensation under Motor Vehicle Act including Sarla Verma & ors. vs. DTC & another, 2009 (6) SCC 121; Reshma Kumari & others vs. Madan Mohan & anr (2013) 9 SCC 65 and Rajesh & others vs. Rajbir Singh & ors. (2013) 9 SCC
54.
(i) After analyzing all the precedents, Hon`ble Bench 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 MACT No.522/17 Page No. 12 of 34 Iti Goyal & ors. vs. Vijay Kumar & anr .
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 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 herein-
before.
(vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of MACT No.522/17 Page No. 13 of 34 Iti Goyal & ors. vs. Vijay Kumar & anr .
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 ` 15,000/-, ` 40,000/- and ` 15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years.
(ii) Now, I proceed to examine the facts of the case at hand.
Income of Deceased:
(i) Learned counsel appearing for petitioners contended that as per ITR for the assessment year 2016-2017 (Ex. PW3/A), gross income of the deceased was ` 3,82,378/- and on the said income he had paid a tax of ` 6,060/-. Accordingly, it was urged that his annual income is liable to be assessed at ` 3,76,318/.
(ii) It was further submitted that since the deceased was running a small shop, loss of dependency is liable to be assessed on the basis of income of deceased from business. In support of his submission, counsel placed reliance on the judgment Geeta & Ors. vs. Dinesh Chander & Ors. MAC Appeal No. 23/2013 decided on 13.01.2015 by the Hon`ble High Court of Delhi.MACT No.522/17 Page No. 14 of 34
Iti Goyal & ors. vs. Vijay Kumar & anr .
(iii) Per contra, counsel appearing for insurance company refuted the said contention by vehemently arguing that deceased was running shop at 327 Bazar, Delhi Gate and after his death, said shop is being run by his father (petitioner no.5). It was argued that since the shop is being run by petitioner no. 5, it cannot be said that petitioners have suffered any loss of income from the business. At the most, petitioners may require one assistant in place of deceased and for that purpose salary of one skilled worker can be granted to the petitioners. In support of his contention, counsel placed reliance on the judgment New India Assurance Company Ltd. vs. Yogesh Devi & ors. CA No. 1987/2012 decided on 10.02.2012 by the Apex court.
(iv) In Yogesh Devi's case (supra), deceased was a bus driver. Besides that he had agricultural land as well as 3 mini buses. After discussing the case law, income from the agricultural land was not considered to assess just compensation on the ground that the said income was still available to the petitioners. Qua mini buses, it was observed as under:
The asset (three mini-buses) would still continue with the family and fetch income. The only difference, perhaps, would be that during his life time the deceased was managing the buses, but now, the claimants may have to engage some competent person to manage the asset, which, in turn, would require some payment to be made to such a manger. To the MACT No.522/17 Page No. 15 of 34 Iti Goyal & ors. vs. Vijay Kumar & anr .
extent of such payment, there would be a depletion in the net income accruing to the claimants out of the asset. Therefore, the amount required for engaging the service of a manager and the salary payable to a driver- as it is asserted that the deceased himself used to drive one of the three buses-would be the loss to the claimants.
(v) However, in case Geeta & ors (supra), a question arose before the Hon`ble High Court whether income from sole proprietorship concern of the deceased can be basis to determine the loss of dependency. This question was deat with by the High Court in para no. 6 and same is reproduced as under:-
"The learned counsel for the Appellants referred to the judgment in Rukmani Devi & ors. vs. Om Prakash & Ors., civil Appeal no. 4608/1984 decided on 17.01.1990 whereby the Supreme Court set aside the order of the High Court whereby the compensation was reduced from ` 1,25,000/- to ` 48,000/- on the reasoning that the benefit from the business was still enuring for the benefit of the claimants. The Supreme Court held that there was no justification whatsoever to reduce the compensation in such case. It appears that Rukmani Devi was decided on its own facts. At the same time, it may be noted that the deceased was running a small business and even if the business is continued either by the widow of the deceased or by the brother of the deceased or by employing other workers, it will be difficult to say that the loss will be only that of the wages of a skilled worker. In my view, in the peculiar circumstances of the case when the business was small, the loss of dependency ought to have been granted on the income of the deceased from the business."MACT No.522/17 Page No. 16 of 34
Iti Goyal & ors. vs. Vijay Kumar & anr .
(vi) From the above, it can safely be culled out that where deceased had permanent source of income such as agricultural land or income from the established business such as buses where income is more or less fix as the buses are supposed to ply on the fixed route on schedule. In such cases, loss of dependency cannot be calculated on the basis of total income of the business, land as in such cases, petitioners can enjoy the fruits of business/land as they were enjoying during the life time of deceased. However, where deceased was running a small business, loss of dependency is required to be calculated on the basis of income from business.
(vii) In the instant case, deceased was running a small shop at Bazar Delhi Gate. PW1 is the wife of deceased and she testified that her husband was a running General Store at Delhi Gate and after the death of her husband, she shifted to her parent's house at Ashok Vihar. In her cross- examination, she testified that she is a housewife and she did not know whether after the death of her husband, shop is still being run or not, but she is not getting anything from the said shop. She further deposed that during the life time of her husband, her father-in-law i.e. petitioner No.5 used to assist her husband.
(viii) From the testimony of PW1, it can safely be culled out that after the death of her husband she is not getting any income from the said shop.
MACT No.522/17 Page No. 17 of 34Iti Goyal & ors. vs. Vijay Kumar & anr .
(ix) No doubt, from the testimony of R2W1, it is clear that petitioner no.5 is running the said shop presently. Admittedly, petitioner no.5 is an old person of 67 years whereas deceased was just 32 years old. Thus, it cannot be said that petitioner no. 5 can run the shop as efficiently as deceased was running. From the ITRs filed by the petitioners, it is clear that deceased was earning annually from the said shop between ` 2,48,000/- to ` 2,99,000/- during the assessment year 2013-2014 and 2015-2016. This shows that he was merely earning between ` 20,000/- to ` 24,000/- per month.
(x) Assuming for the sake of arguments that PW5 is running the said shop but due to old age, to run the said business, he will require one full time qualified person. It is seldom to believe that petitioners would get a qualified and loyal person at the salary of ` 20,000/- per month.
(xi) In view of the aforesaid discussion, I am of the considered opinion that in the instant case, loss of dependency is required to be assessed on the basis of income from the shop of deceased.
(xii) Counsel appearing for the petitioners insisted that income should be assessed on the basis of income mentioned in the ITR for the assessment year 2016- 2017 whereas counsel for the insurance company submitted MACT No.522/17 Page No. 18 of 34 Iti Goyal & ors. vs. Vijay Kumar & anr .
that since the said ITR was filed after the death of deceased, no reliance can be placed on the said ITR.
(xiv) PW3 in his cross-examination admitted that ITR for the assessment year 2016-2017 was filed on 17.03.2017 whereas the accident had taken place on 28.09.2016. It means that the ITR for the assessment year 2016-2017 had been filed much after the death of deceased. Moreover, no document has been produced in support of the income mentioned in the ITR for the assessment year 2016- 2017. In these circumstances, no reliance can be placed on the said ITR.
(xv) Since the ITR for the assessment year 2015-2016 was filed during the life time of the deceased and as per the said ITR, total income of the deceased during this period was ` 2,99,418/- and since on the said income he had paid a tax of ` 1,820/-, income of the deceased is assessed at ` 2,97,598/- per annum.
Addition towards Future Prospects:-
(i) As per driving licence and ration-card, date of birth of the deceased was 8.12.1982. Since he died on 13.10.2016, it means that he was 33 years 10 months and 5 days old. Since he was below 40 years and self employed person, in view of law laid down in Praney Sethi's case (supra), petitioners are entitled to 40% addition in the income MACT No.522/17 Page No. 19 of 34 Iti Goyal & ors. vs. Vijay Kumar & anr .
of deceased towards future prospects. Accordingly, a sum of ` 1,19,039/- is added in the income of the deceased towards future prospects.
Deduction towards personal and living expenses of the deceased:-
(i). Deceased left behind two minor children (petitioner no. 2 & 3) besides his wife (petitioner no.1). He also left behind his aged parents.
(ii). As already stated that after the death of the deceased, petitioner no. 5 is looking after the said business, thus it can not be said that he was totally financially dependent on the income of deceased. Accordingly, parents cannot be considered as dependent on the income of deceased.
(iii) Since three persons were dependent on the income of deceased, in view of law laid down in Sarla Verma case (supra) and approved by the Apex Court in Pranay Sethi's case (supra), 1/3rd of the income is liable to be deducted towards personal and living expenses of the deceased.
Selection of multiplier:
(i) Since deceased was above 33 years but less MACT No.522/17 Page No. 20 of 34 Iti Goyal & ors. vs. Vijay Kumar & anr .
than 35 years old at the time of his death, in view of law laid down in Sarla Verma case (supra) and approved by the Apex Court in Pranay Sethi's case (supra), multiplier of 16 shall be apply in this matter.
Loss of income:-
(i) In view of the above, loss of income is calculated as under:
NAME OF THE HEAD AMOUNT (IN `)
Annual Income of deceased 2,97,598/-
40 % addition of towards future prospects 1,19,039/-
Total 4,16,637/-
Less 1/3rd deduction towards personal 1,38,879/-
and living expenses
Total 2,77,758/-
Selection of multiplier 16
Total loss of income 44,44,128/-
11. Compensation under non-pecuniary heads:-
(i) Judgment of Pranay Sethi (supra) was considered and clarified by the Apex Court in Magma General Insurance Company Ltd. vs. Nanu Ram @ Chuhru Ram & ors. Civil Appeal No. 9581/2018 decided by the Apex Court on 18.09.2018. After considering the Pranay Sethi's judgment, Hon`ble Supreme Court pleased to award MACT No.522/17 Page No. 21 of 34 Iti Goyal & ors. vs. Vijay Kumar & anr .
loss of consortium of ` 40,000/- to each dependent of the deceased and further pleased to award a compensation of ` 50,000/- to each dependent of the deceased towards loss of love and affection. The relevant paragraph is reproduced as under:-
"A Constitution Bench of this Court in Pranay Sethi (supra) dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is Loss of Consortium.
In legal parlance, "consortium" is a compendious term which encompasses 'spousal consortium', 'parental consortium', and 'filial consortium'.
The right to consortium would include the com- pany, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse.
Spousal consortium is generally defined as rights pertaining to the relationship of a husband wife which allows compensation to the surviving spouse for loss of "company, society, cooperation, affection, and aid of the other in every conjugal relation."
Parental consortium is granted to the child upon the premature death of a parent, for loss of "parental aid, protection, affection, society, discipline, guidance and training."
Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during MACT No.522/17 Page No. 22 of 34 Iti Goyal & ors. vs. Vijay Kumar & anr .
their lifetime. Children are valued for their love, affection, companionship and their role in the family unit.
Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions worldover have recognized that the value of a child's consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensation for loss of the love, affection, care and companionship of the deceased child.
The Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, in cases of genuine claims. In case where a parent has lost their minor child, or unmarried son or daughter, the parents are enti- tled to be awarded loss of consortium under the head of Filial Consortium.
Parental Consortium is awarded to children who lose their parents in motor vehicle accidents under the Act.
A few High Courts have awarded compensation on this count. However, there was no clarity with respect to the principles on which compensation could be awarded on loss of Filial Consortium. The amount of compensation to be awarded as consortium will be governed by the principles of awarding compensation under 'Loss of Consortium' as laid down in Pranay Sethi (supra).
In the present case, we deem it appropriate to award the father and the sister of the deceased, an amount of Rs. 40,000 each for loss of Filial MACT No.522/17 Page No. 23 of 34 Iti Goyal & ors. vs. Vijay Kumar & anr .
Consortium."
(ii) In the said case, it was also argued before the Apex Court that High Court had wrongly awarded ` 1 lac towards love and affection. However, the view of High Court was maintained by the Apex Court by holding that "The amount awarded by High Court towards loss of love and affection, is, however, maintained." Since in the said case two persons were dependent on the deceased, Hon`ble Apex Court awarded ` 50,000/- each amounting ` 1 lac towards loss of love and affection.
(iii) Since parents (petitioner no. 4 & 5 ) were not dependent upon the income of deceased, they cannot be considered as dependent for the purpose of loss of consortium and loss of love and affection.
(iv) However, being the wife and minor children of deceased i.e. petitioner no.1, 2 & 3 are entitled for loss of love and affection as well as loss of consortium.
(v) In view of above, a sum of ` 15,000/- is awarded towards loss of estate and ` 15,000/- is awarded towards funeral expenses. Further, a sum of ` 40,000/- each towards loss of consortium and ` 50,000/- each towards loss of love and affection is awarded to petitioner no. 1 to 3.
(vi) Since, interest @ 9% per annum was MACT No.522/17 Page No. 24 of 34 Iti Goyal & ors. vs. Vijay Kumar & anr .
awarded by the Apex Court in Municipal Corporation of Delhi vs. Association of Victims of Uphaar Tragedy, 2012 ACJ 48 (SC), it is held that claimants shall be entitled to interest @ 9% per annum from the date of filing of claim petition i.e. 07.02.2017 till realization of the amount.
(vii) Accordingly, claimants are entitled to compensation in respect of the death of deceased as under:
NAME OF THE HEAD AMOUNT
(IN ` )
Loss of Income 44,44,128/-
Loss of estate 15,000/-
Funeral expenses 15,000/-
Loss of consortium (40,000 X 3) 1,20,000/-
Loss of love and affection (50,000 x 3) 1,50,000/-
Total 47,44,128/-
Round off: ` 47,45,000/-
(Rupees Forty Seven Lac & Forty Five Thousands Only)
(viii) The claimants shall also be entitled to interest @ 9% per annum from the date of filing of claim petition i.e. 07.02.2017 till realization of the amount.
Apportionment of award:-
MACT No.522/17 Page No. 25 of 34Iti Goyal & ors. vs. Vijay Kumar & anr .
(i) Being the wife of deceased, petitioner no. 1 shall get 40% of the award amount whereas petitioner no. 2 & 3 being the children shall get 20 % each of the award amount.
Since petitioner no. 4 & 5 were not dependent on the income of deceased, they shall get 10% each of the award amount. Their individual share is tabulated as under:-
Name of the Relation with Percentage Amount claimant deceased of (In ` ) award amount Smt. Iti Goyal Wife 40% 18,98,000 Baby Sanvi Goyal Daughter 20% 9,49,000 Mst. Chaynika Goyal Son 20% 9,49,000 Smt. Madhubala Mother 10% 4,74,500
5.Sh. Ashok Kr. Father 10% 4,74,500 Gupta
12. DISBURSEMENT:-
(i) Statement of petitioners were recorded on 31.05.2018, in compliance of clause 27 of FAO No. 842 of 2003 titled Rajesh Tyagi & ors. vs. Jaivir Singh & ors.
decided by Hon`ble High Court of Delhi on December 15, 2017 wherein petitioner no. 1 testified that she needs about ` 35,000/- per month for her house hold expenses; petitioner no. 4 submitted that she needs about ` 35,000/- per month for her personal expenses; petitioner no. 5 submitted that he needs about ` 30,000/- per month for his personal expenses.
MACT No.522/17 Page No. 26 of 34Iti Goyal & ors. vs. Vijay Kumar & anr .
(ii) In view of statement of petitioner no. 1, on realization of award amount, a sum of ` 98,000/- plus entire interest be released to her from her share and the balance amount of ` 18 lac in terms of the directions contained in FAO No. 842/2003 dated December 15, 2017, shall be put in 18 fixed deposits in her name in a nationalized bank of equal amount of ` 1,00,000/- each for a period of six months, one year, one and a half year, two years and so on. Besides the above said amount, amount of FDRs on maturity, shall automatically be transferred in her saving account maintained in a nationalized bank near the place of her residence without the facility of cheque book and ATM. It is clarified that the amount shall be released to her only on submitting the copy of passbook of such saving account with endorsement of the bank that no cheque book facility and ATM card has been issued or if has been issued, same has been withdrawn and same shall not be issued without the prior permission of this Tribunal. However, petitioner shall have liberty to seek the release of ` 1,89,800/- from the bank located within the jurisdiction of this Tribunal itself.
(iii) On realization of the award amount, a sum of ` 74,500/- each plus entire interest be released to petitioner no. 4 & 5 and the balance amount of their share i.e. ` 4 lac each in terms of the directions contained in MACT No.522/17 Page No. 27 of 34 Iti Goyal & ors. vs. Vijay Kumar & anr .
FAO No. 842/2003 dated December 15, 2017, shall be put in 08 fixed deposits in their respective name in a nationalized bank of equal amount of ` 50,000/- each for a period of six months, one year, one and a half year and two years. Besides the above said amount, amount of FDRs on maturity, shall automatically be transferred in their saving account maintained in a nationalized bank near the place of their residence without the facility of cheque book and ATM. It is clarified that the amount shall be released to them only on submitting the copy of passbook of such saving account with endorsement of the bank that no cheque book facility and ATM card has been issued or if has been issued, same has been withdrawn and same shall not be issued without the prior permission of this Tribunal. However, petitioner no. 4 & 5 shall have liberty to seek the release of ` 47,450/- from the above said amount from the bank located within the jurisdiction of this Tribunal itself.
(iv) Since petitioner no. 2 & 3 are still minor, on realization of the award amount, entire award amount with interest upto date shall be kept in FDR in a nationalized bank till they attain the age of majority. On attaining the age of majority, 20% of the maturity amount shall be transferred in their saving account maintained in a nationalized bank near the place of their residence without the facility of cheque book and ATM and the balance 80% of the amount shall be kept in six fixed deposits of equal amount in their name MACT No.522/17 Page No. 28 of 34 Iti Goyal & ors. vs. Vijay Kumar & anr .
for period of 6 months, 12 months and 18 months and so on. It is clarified that the amount shall be released to them only on submitting the copy of passbook of such saving account with endorsement of the bank that no cheque book facility and ATM card has been issued or if has been issued, same has been withdrawn and same shall not be issued without the prior permission of this Tribunal. However, being the natural guardian, petitioner no1. Smt. Iti Goyal is permitted to draw interest on monthly or quarterly basis as she desires till to meet their educational expenses.
13. The above FDRs shall be prepared with the following conditions as enumerated by the Hon`ble High Court in MAC Appeal No. 422/2009, titled Sobat Singh vs. Ramesh Chandra Gupta & ors and FAO No. 842/2003 Rajesh Tyagi & ors vs. Jaivir Singh & ors decided on December 15, 2017:-
(i) The bank shall not permit any joint name(s) to be added in the saving account or fixed deposit account of the victims i.e. saving bank account(s) of the claimants shall be individual saving bank account and shall not a joint account.
(ii) Original fixed deposit shall be retained by the bank in safe custody. However, the statement containing FDR number, FDR amount, date of maturity and maturity amount shall be furnished by the bank to the claimants.MACT No.522/17 Page No. 29 of 34
Iti Goyal & ors. vs. Vijay Kumar & anr .
(iii) The monthly interest be credited by Electronic Clearing System(ECS) in the saving bank account of the claimants near the place of their residence.
(iv) The maturity amount of the FDR be credited by the ECS in the saving bank account of the claimants near the place of their residence.
(v) No loan, advance or withdrawal or premature discharge be allowed on the fixed deposits without the permission of the court.
(vi) The concerned bank shall not issue any cheque book and/or debit card to claimants. However, in case the debit card and/cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount. The bank shall debit card(s) freeze the account of claimants so that no debit card be issued in respect of the account of claimants from any other branch of the bank. The bank shall make an endorsement on the passbook of the claimants to the effect, that no cheque book and/or debit card have been issued and shall not be issued without the permission of the Court and claimants shall produced the passbook with the necessary endorsement before the Tribunal for compliance.
14. In compliance of the directions given by Hon`ble High court in FAO No. 842/2003 dated December 15, 2017, Summary of the Award in the prescribed format- IV A is as under:-
MACT No.522/17 Page No. 30 of 34Iti Goyal & ors. vs. Vijay Kumar & anr .
SUMMARY OF AWARD
(i) Date of accident 28.09.2018
(ii) Name of the Himanshu Goyal
deceased
(iii) Age of the injured 33 + years
(iv) Occupation of the Self business
deceased
(v) Income of the ` 2,97,598/- per annum
deceased
(vi) Name, age and relationship of legal representative of
deceased:
S.No. Name Age Relation
1. Smt. Iti Goyal 33 Yr. Wife
2. Baby Sanvi Goyal 6 Yr Daughter
3 Mst. Chaynika Goel 3 Yr son
4. Smt. Madhubala 65 Yr Mother
5 Sh. Ashok Kumar Gupta 65 Yr Father
COMPUTATION OF COMPENSATION
S.No. Heads Awarded by the
Claims Tribunal
(IN `)
7. Income of the deceased (A) 2,97,598/- p.a
8. Less Personal expenses of the 1,38,879/-
deceased (C) (1/3th)
9. Monthly Loss of dependency NA
(A+B)-C= D
10. Annual Loss of dependency 2,77,758
1. Multiplier (E) 16
MACT No.522/17 Page No. 31 of 34
Iti Goyal & ors. vs. Vijay Kumar & anr .
12. Total Loss of dependency 44,44,128
13. Medical Expenses (G) -
14. Add-Future Prospects (B) 1,19,039/-
15. Compensation for loss of love and 1,50,000 affection (H)
16. Compensation for loss of consortium (I) 1,20,000/-
17. Compensation for loss of estate (J) 15,000/-
18. Compensation towards funeral 15,000/-
expenses (K) 19 TOTAL COMPENSATION 47,45,000/-
(F + G + H + I + J + K = L) (Rounded off)
20. RATE OF INTEREST AWARDED 9%
21. Interest amount upto to the date of 7,17,600
award (M)
(01 yr 08 months 05 days)
22. Total amount including interest (L + M) 54,62,600
23. Award amount released As mentioned
para No. 12
24. Award amount kept in FDRs As mentioned
para No. 12
25. Mode of disbursement of the award In the form of amount to the claimant(s). (Clause 29) FDRs as mentioned in para No.12
26. Next Date for compliance of the award. 16.11.2018 (Clause 31) LIABILITY TO PAY:-
15. Since respondent no.1 is the owner and driver of the offending vehicle and same was insured with MACT No.522/17 Page No. 32 of 34 Iti Goyal & ors. vs. Vijay Kumar & anr .
respondent no.2, both shall be severally and jointly liable to pay compensation to the petitioners.
(i) In view of aforesaid discussion, Issue No.2 is decided in favour of petitioners and against the respondents.
RELIEF:
16. Since, the offending vehicle was registered in the name of respondent no. 2, respondent No. 2 is directed to deposit the award amount of ` 47,45,000/- with interest @ 9 % per annum from the date of filing of claim petition i.e. 07.02.2017 till realization of the amount with Nazir of this Tribunal within 30 days under intimation to the petitioners failing which the respondent no. 2 shall be liable to pay interest @ 12 % per annum for the period of delay beyond 30 days.
(i). Driver-cum-owner of the offending vehicle are also directed to place on record the proof of deposit of the award amount, proof of delivery of notice in respect of deposit of the amount to the petitioners/claimants and complete detail in respect of calculation of interest etc. within 30 days from today.
(ii) A copy of this judgment be sent to Respondent No.2, for compliance within the time granted.
MACT No.522/17 Page No. 33 of 34Iti Goyal & ors. vs. Vijay Kumar & anr .
(iii) Nazir is directed to place a report on record on November 16, 2018 in the event of non-receipt/deposit of the compensation amount within the time granted.
(iv) In terms of clause 31 & 32 of the judgment titled Rajesh Tyagi & others Vs. Jaibir Singh & Ors. decided by Hon`ble High Court on December 12, 2014, copy of this award be sent to the concerned court of Ld. Metropolitan Magistrate and Secretary DLSA, Central District for information and necessary action.
(v) File be consigned to Record Room.
Announced in open court on this 12th day of October, 2018 (PAWAN KUMAR JAIN) Judge, MACT-1 (Central), THC, Delhi/sv Digitally signed by PAWAN PAWAN KUMAR JAIN KUMAR JAIN Date: 2018.10.15 13:05:52 +0530 MACT No.522/17 Page No. 34 of 34