Delhi District Court
Kamlesh And Ors vs Surya Bhan Yadav on 18 November, 2023
MACP No. 531/19; FIR No. 307/19 DOD:18.11.2023
IN THE COURT OF MS. PREETI AGRAWAL GUPTA, PRESIDING
OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNAL,
NORTH DISTRICT, ROHINI COURTS, DELHI
MAC Petition No. 531/19
UID/CNR No. DLNT01-008473-2019
1. Smt. Kamlesh,
W/o Late Sh. Sanjay,
(Widow of deceased)
2. Master Harsh,
S/o Late Sh. Sanjay,
(Minor son of deceased)
3. Smt. Guddo,
W/o Sh. Satey Ram @ Sant Ram,
(Mother of deceased)
4. Satey Ram @ Sant Ram,
S/o Late Ganga Ram,
(Father of deceased)
All R/o. Gali No. 5-25,
Futa Road, Part - 2,
Mukundpur Extension,
Prahladpur, Delhi-110042.
..........Petitioners
VERSUS
1. Sh. Surya Bhan Yadav,
S/o Sh. Ghisiyan Yadav,
R/o Village Sukool Bijauli,
Tehsil Jaisinghpur,
District Sultanpur,
UP.
(Driver)
Smt. Kamlesh & Ors. Vs. Surya Bhan Yadav & Ors. Page 1 of 27
MACP No. 531/19; FIR No. 307/19 DOD:18.11.2023
2. M/s. Ant Travels Pvt. Ltd.,
R/o Raj Place,
Shop No. A1,
2nd Floor,
Atta Market, Sector-27,
Noida.
(Registered Owner)
3. The New India Assurance Co. Ltd.
12/1, 2nd Floor,
Jeevan Raksha Building,
Asaf Ali Road,
New Delhi.
(Insurer)
............Respondents
Date of Institution : 05.09.2019
Date of Arguments : 18.11.2023
Date of Judgment : 18.11.2023
APPEARENCE(S):
Sh. Kuldeep Kumar, Ld. Counsel for petitioners.
None for driver and owner (defence of owner already struck off vide order dated 12.03.2020).
Sh. Rajesh Jagirdar, Ld. Counsel for insurance company.
Petition under Section 166 & 140 of M.V. Act, 1988 for grant of compensation AWARD
1. The present petition has been filed by the petitioners U/s 166 & 140 M.V.Act seeking compensation of Rs. 50,00,000/ alongwith interest @ Smt. Kamlesh & Ors. Vs. Surya Bhan Yadav & Ors. Page 2 of 27 MACP No. 531/19; FIR No. 307/19 DOD:18.11.2023 18% per annum from the date of filing of the present claim petition till its realization being legal representatives of deceased Sanjay (married son aged 28 years) on account of death of deceased Sanjay who died in road traffic accident in question which occurred on 07.08.2019. The petitioners also prayed for compensation for irreparable monetary loss, mental agony, loss of love and affection and future prospects plus all other heads of compensation as per entitlement, caused due to accidental death of deceased.
2. The concise material facts relevant to decide the present claim petition as averred are that on 07.08.2019, deceased namely Sanjay (aged about 28 years) alongwith Vinod, Surender Singh and Ashwani Gupta, were travelling in a vehicle i.e. Car bearing registration no. DL8C-AD-3912 from Agra to Delhi. At about 5:00 AM, when they reached at Tupple Region, Yamuna Expressway, offending vehicle (Bus) bearing registration no. UP16- FT-5934 which was being driven by its driver (respondent no. 1 herein) in a rash and negligent manner, came from behind and hit against the aforesaid Car with a great force, as a result of which, deceased alongwith other occupants of the car, sustained grievous injuries. They all were immediately taken to Kailash Hospital, Jewar. Postmortem of the deceased Sanjay was conducted at the mortuary of District Hospital, Gautam Budh Nagar, Noida. A case U/s 279/337/338/304A/427 IPC was registered at PS. Tapple, District Aligarh, UP vide FIR No. 307/19 with regard to the accident in question. The petitioners have claimed that the accident has taken place due to rash and Smt. Kamlesh & Ors. Vs. Surya Bhan Yadav & Ors. Page 3 of 27 MACP No. 531/19; FIR No. 307/19 DOD:18.11.2023 negligent driving of aforementioned offending vehicle which was allegedly being driven by respondent no.1/driver. The offending vehicle was found to be owned by respondent no. 2 and was duly insured with respondent no. 3/The New India Assurance Co. Ltd., at the time of accident in question.
3. In his written statement, the respondent no.1 i.e. driver of offending vehicle has claimed that he was having valid and effective driving licence at the time of accident. On merits, the averments made in the claim petition have been denied and prayed for its dismissal.
4. In its written statement, the respondent no. 2 i.e. registered owner of offending vehicle has claimed that the accident was occurred due to rash and negligent driving of car bearing registration no. DL8C-AD-3912 by its driver as he had applied the brake of his vehicle suddenly, due to which accident in question had occurred. It has been further claimed that driver/R1 was having valid and effective DL at the time of accident. It has also been claimed that offending vehicle was having valid permit at the time of accident. It has been claimed that the offending vehicle was insured with respondent no. 3 at the time of accident. On merits, the averments made in the claim petition have been denied and prayed for its dismissal.
5. In its WS, the respondent no.3 i.e. insurance company has not taken any statutory defence, as available U/s 149(2) MV Act. It has been Smt. Kamlesh & Ors. Vs. Surya Bhan Yadav & Ors. Page 4 of 27 MACP No. 531/19; FIR No. 307/19 DOD:18.11.2023 claimed that present case is bad on account of non-joinder of necessary parties as driver, owner and insurer of vehicle no. DL8C-AD-3912 were not made parties in the present claim petition and thus, the same is liable to be dismissed. It has been admitted that offending bus was insured with it at the time of accident. On merits, it has denied the averments made in the claim petition and prayed for its dismissal.
6. From the pleadings of the parties and the documents, the following issues were framed vide order dated 12.03.2020:-
1) Whether the deceased Sanjay suffered fatal injuries in road traffic accident on 07.08.2019 at 5:00 pm at Yamuna Expressway, 55 KM Delhi, within the jurisdiction of PS. Tapple, District Aligarh UP, due to rashness and negligence on the part of Sh. Surya Bhan Yadav who was driving vehicle Bus bearing registration no. UP16-FT-5934, owned by M/s. Ant Travels Pvt. Ltd.
and insured with New India Assurance Co. Ltd./R-3?
OPP.
2) Whether the LRs of deceased are entitled to any compensation if so to what amount and from whom?
OPP.
3) Relief.
7. To substantiate their claim, petitioner no. 1 (widow of deceased) examined herself as PW-1. She deposed on the lines of averments made in the claim petition.
Smt. Kamlesh & Ors. Vs. Surya Bhan Yadav & Ors. Page 5 of 27MACP No. 531/19; FIR No. 307/19 DOD:18.11.2023
8. In defence, no evidence has been adduced by any of the respondents despite grant of sufficient time and opportunities.
9. This Tribunal has carefully perused DAR/claim petition, evidence led by parties has been duly appreciated. All documents and material relied upon & proved considered. Arguments addressed by respective counsels considered. Legal position, both statutory and binding applicable precedents, has been appreciated. The issue wise determination is as under:-
ISSUE NO. 110. The onus to prove, the aforesaid issue was placed on the petitioners. To prove the said issue, petitioner no. 1 Smt. Kamlesh (widow of deceased) examined herself as PW-1. She has relied upon the following documents:
S.No. Description of documents Remarks
1. Copy of her Aadhaar Card Ex PW1/1
2. Copy of Aadhaar Card of son of Ex. PW1/2
deceased
3. Copy of Aadhaar Card of mother of Ex. PW1/3
deceased
4. Copy of Aadhaar Card of father of Ex. PW1/4
deceased
Smt. Kamlesh & Ors. Vs. Surya Bhan Yadav & Ors. Page 6 of 27
MACP No. 531/19; FIR No. 307/19 DOD:18.11.2023
5. Copy of Aadhaar Card of deceased Ex. PW1/5
6. Certified copy of criminal case Ex. PW1/6(colly) record
11. PW1 Smt. Kamlesh (widow of deceased) in her testimony by way of affidavit (Ex. PW1/A) deposed that the deceased was her husband who met with an accident on 07.08.2019 with Bus bearing registration no. UP16-FT-5934 and died on account of injuries sustained by him in the said accident. The aforesaid witness (PW1) was duly cross examined by the Ld. Counsel for insurance company on the aspect of issue under consideration where she deposed that she was not an eyewitness to the accident in question.
12. During the arguments, Ld. Counsel for petitioners heavily relied upon criminal case record (Ex. PW1/6 colly) in support of case of petitioners in order to bring home that the accident in question had taken place due to the rash and negligent driving of offending vehicle i.e. bus bearing Registration No.UP16-FT-5934, by its driver/respondent no. 1. It has been contended that respondent no. 1 Sh. Surya Bhan Yadav was also chargesheeted by police for offences punishable U/s 279/337/338/304A/427 IPC, which clearly establishes that the accident had taken place due to rash and negligent driving of offending vehicle by respondent no. 1. Per contra, it is contended on behalf of insurance company that PW1 Smt. Kamlesh is not an eyewitness of the accident, as such her testimony should not be considered on this issue. It Smt. Kamlesh & Ors. Vs. Surya Bhan Yadav & Ors. Page 7 of 27 MACP No. 531/19; FIR No. 307/19 DOD:18.11.2023 is further counter argued that the accident in question was occurred due to sole negligence of the driver of the car in which deceased alongwith other injured persons were travelling as the same was being driven by him at a very high speed, in a rash and negligent manner.
13. To substantiate the deposition of the petitioners, there are two other claim petitions in the same FIR pertaining to injuries suffered by other two injured namely Vinod and Surender Singh. The other petitioners have also corroborated the testimony of PW1 in support of their respective claim petitions, as regards the mannerism and occurrence of the accident, involvement of the offending vehicle which is bus bearing registration no. UP16-FT-5934 at Tupple Region, Yamuna Expressway. It is obvious that both the injured namely Vinod and Surender Singh, being alive victims, are eye- witnesses and corroborated and persuasive testimonies in their respective cases are relevant facts which can be considered in this case being relevant. It has been brought forth that the petitioner as well as other victims were travelling in Eeco Car bearing registration no. DL8C-AD-3912 when the offending vehicle i.e. bus in question, came from behind and hit their vehicle (Eeco Car) causing all the occupants to sustain serious injuries. It is further pertinent that in an unfortunate road accident in question, four persons/passengers had died who were also travelling in the victim's vehicle i.e. Eeco Car bearing registration no. DL8C-AD-3912. Four other occupants had received injuries. However, before this court, only three claim petitions Smt. Kamlesh & Ors. Vs. Surya Bhan Yadav & Ors. Page 8 of 27 MACP No. 531/19; FIR No. 307/19 DOD:18.11.2023 are pending, out of which two pertain to injuries claim and one pertains to a fatal case. Though being an out of Delhi road accident case, the claim petition before this Court has been filed on the basis of residence of the victims. Despite cross-examination and suggestion on the alleged negligence of the driver of the victim's Eeco Car, which was being driven by injured Surender Singh Yadav, bald suggestions have been outrightly denied and no reliable evidence has been proved to justify the formal suggestions regarding the negligence of the driver of the Eeco car. The defence attributing any rashness and negligence, towards driving of the Eeco car, remains unproved. The Driving Licence of the driver of the victim's vehicle as well as Permit of the offending vehicle have been asserted as valid and no contrary evidence led on this aspect.
14. The facts of the case, arguments of the Ld. Counsels, evidence, material on record and duly verified documents of the criminal case, have been carefully examined and scrutinized. Respondent no. 1 namely Surya Bhan Yadav has been charge sheeted for offences punishable U/s. 279/337/338/304A/427 IPC by the investigating agency after arriving at the conclusion on the basis of investigation carried out by it that the accident in question has taken place due to rash and negligent driving of offending vehicle/bus. A case U/s 279/337/338/304A/427 IPC was registered at PS. Tappal vide FIR No. 307/19 soon after the accident in question, without any inordinate delay as deceased unfortunately did not survive due to the fatal Smt. Kamlesh & Ors. Vs. Surya Bhan Yadav & Ors. Page 9 of 27 MACP No. 531/19; FIR No. 307/19 DOD:18.11.2023 injuries suffered by him, despite being immediately taken to the nearby hospital i.e. District Hospital, Gautam Budh Nagar.
15. Perusal of the mechanical inspection report dated 03.10.2019 (which is the part of criminal case record Ex. PW1/6 colly) of the offending vehicle would show fresh damages i.e. its front right side head light was found damaged; its front right side body was found damaged; its front bumper was found damaged and its front glass was also found damaged. The said report also corroborates that offending vehicle/bus came from behind and hit the car in which deceased alongwith other injured persons were travelling, from its rear side. The site plan annexed with the criminal case record has been prepared during the investigation. Perusal of the same clearly reveals that offending vehicle came from behind after changing its lane. The spot of accident at point A, as per site plan, shows that offending bus hit the victim car from behind, thereby causing fatal and serious injuries to its occupants.
16. As per law, the rash and negligent driving of the offending vehicle may be proved, either by direct evidence or by circumstances, including principle by applying the res-ipsa loquitur. The nature and manner of damage to the offending vehicle i.e. Bus bearing registration no. UP16-FT- 5934 due to accident clearly points out to rash and negligent manner of driving of offending vehicle by respondent no. 1/driver, thereby causing fatal injury to the victim.
Smt. Kamlesh & Ors. Vs. Surya Bhan Yadav & Ors. Page 10 of 27MACP No. 531/19; FIR No. 307/19 DOD:18.11.2023
17. It is pertinent to note that the respondent no.1/driver of offending vehicle was the other material witness to throw light by testifying as to how and under what circumstances, the accident has taken place. However, he has preferred not to enter into the witness box. Thus, an adverse inference is liable to be drawn against him to the effect that the accident in question has taken place due to rash and negligent driving of the offending vehicle bearing registration no. UP16-FT-5934 by the respondent no. 1. There is nothing on record to show that the petitioners had any enmity with the driver of the offending vehicle so as to falsely implicate him in this case. Reliance placed on Cholamandalam MS General Insurance Co. Ltd. V. Kamlesh & Ors, MAC APP. No. 530/2008 passed by Hon'ble Delhi High Court on 11.11.2008.
18. Apart from above, copy of postmortem report (which is part of criminal case record Ex. PW1/6 colly) also corroborates that cause of death of deceased was hemorrhage and shock due to antemortem injury. The injuries as mentioned in the relevant column of external injuries of the said report, are also consistent with the injuries which are sustained in road traffic accident. It is established that the deceased succumbed to his injuries sustained in the road accident in question and unfortunately died due to accidental injuries.
19. In view of the aforesaid discussion and the evidence which has come on record, the petitioners have been able to duly prove that deceased Smt. Kamlesh & Ors. Vs. Surya Bhan Yadav & Ors. Page 11 of 27 MACP No. 531/19; FIR No. 307/19 DOD:18.11.2023 has sustained fatal injuries in the Motor Vehicular Accident which has occurred on 07.08.2019 at about 5:00 AM at Tupple Region, Yamuna Expressway, due to rash and negligent driving of offending vehicle(Bus) bearing registration no. UP16-FT-5934 by respondent no. 1. Thus, issue no. 1 is decided in favour of petitioners and against the respondents.
ISSUE NO. 220. The petitioners who are claimants are the widow, minor son and parents of deceased, wherein petitioner no. 1 namely Smt. Kamlesh is the widow of deceased, petitioner no. 2 Master Harsh is the minor son of deceased, petitioner no. 3 Smt. Guddo is the mother of deceased and petitioner no. 4 Sh. Satey Ram @ Sant Ram is the father of deceased. It is admitted in her own chief examination vide Ex.PW1/A that petitioner no. 1 Smt. Kamlesh/widow of deceased remarried on 28.04.2021 i.e. after the death of her husband who is the victim of the road accident in question and expired on 07.08.2019, due to fatal injuries sustained by him. The other LRs are the parents of deceased and minor son of deceased. All the petitioners being dependents of the deceased victim, as on the date of accident, have suffered monetary loss and mental agony due to death of the victim namely Sanjay in the road accident in question. Accordingly, petitioners are entitled for just and fair compensation in the present case.
Smt. Kamlesh & Ors. Vs. Surya Bhan Yadav & Ors. Page 12 of 27MACP No. 531/19; FIR No. 307/19 DOD:18.11.2023
21. Section 168 of the Motor Vehicle Act 1988 enjoins upon the Claims Tribunal to hold an inquiry into the claim to make an award determining the amount of compensation which appears to it to be just and reasonable. The guiding principles for assessment of "just and reasonable compensation" in fatal case has been laid down by Hon'ble Supreme Court of India, in case titled as Smt. Anjali & Ors., Vs. Lokendra Rathod & Ors, in Civil Appeal No. 9014 of 202, decided on 06.12.2022 that: -
"The provisions of the Motor Vehicles Act, 1988 (for short, "MV Act") gives paramount importance to the concept of 'just and fair' compensation. It is a beneficial legislation which has been framed with the object of providing relief to the victims or their families. Section 168 of the MV Act deals with the concept of 'just compensation' which ought to be determined on the foundation of fairness, reasonableness and equitability. Although such determination can never be arithmetically exact or perfect, an endeavor should be made by the Court to award just and fair compensation irrespective of the amount claimed by the applicant/s. In Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr.3, this Court has laid down as under:
"16."Just compensation" is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well settled principles relating to award of compensation. It is not intended to be a bonanza, largesse or source of profit."
22. The Hon'ble Apex Court has held that the compensation should be just and is not expected to be a windfall or a bonanza nor it should be niggardly or a pittance. Reliance is placed on 2012 (8) SLT 676 titled K. Smt. Kamlesh & Ors. Vs. Surya Bhan Yadav & Ors. Page 13 of 27 MACP No. 531/19; FIR No. 307/19 DOD:18.11.2023 Suresh Vs. New India Assurance Co. Ltd. The aforesaid Principle of law has also been reiterated by a landmark judgment of the Hon'ble Supreme court in 2017 (13) SCALE 12 : 2017 XI AD (SC) 113 titled National Insurance Co. Ltd. Vs. Pranay Sethi and Ors. Accordingly, the quantum of appropriate and adequate compensation to the victim of road accident is to be derived after assessment of various relevant parameters, as per law. Hereinafter, assessment is divided into several criteria, as applicable to the facts of the present case.
LOSS OF DEPENDENCY
23. The claimants/petitioners are the widow, minor son and parents of deceased. The sole witness PW1 Smt. Kamlesh (widow of deceased) has deposed in her evidence by way of affidavit Ex. PW1/A that deceased was 28 years of age at the time of accident and was doing private job and was earning Rs. 20,000/- per month at the time of accident. She further deposed that deceased has left behind his four legal heirs i.e. widow, minor son and parents. She further deposed that deceased was contributing his entire income for household expenses. She further deposed that her second husband is earning Rs. 15,000/- per month and she is living with him. During cross- examination of PW1 (widow of deceased) on behalf of insurance company, she deposed that she has remarried on 28.04.2021 with Sh. Mahendra Sharma. She admitted that her son Harsh, mother in law and father in law were not residing with her. She further deposed that no child was born out Smt. Kamlesh & Ors. Vs. Surya Bhan Yadav & Ors. Page 14 of 27 MACP No. 531/19; FIR No. 307/19 DOD:18.11.2023 from her wedlock with Sh. Mahendra Sharma. During further cross- examination, PW1 testified that she did not have any proof to show that deceased was earning Rs. 20,000/- per month, as claimed. She, however, denied the suggestion that deceased was not earning Rs. 20,000/- per month.
24. It is considered that the petitioners have failed to furnish any concrete material to show any definite income of deceased or to show that he was working as a driver with any employer. There is no material tendered in regard to education or vocational skills of the deceased. So much so, it is not proved if the deceased was having any driving licence. There is nothing on record to prove the authenticity or justify the claim of petitioners regarding the employment of deceased, as a driver at the time of road accident in question. Accordingly, it is deemed appropriate to assess the monthly income of deceased, as per applicable schedule of minimum wages for an unskilled person, as on the date of accident i.e. 07.08.2019. The minimum wages of an unskilled person, were Rs. 14,468/- per month, as per the prevalent notification issued by Government of NCT of Delhi, which is being considered as income of the deceased, as on the date of accident.
25. In order to consider the age of deceased, the relevant document is his Aadhaar Card which is proved as Ex.PW1/5, wherein his recorded year of birth is 1991. Date of accident being 07.08.2019, the age of deceased is taken as 28 years as on the date of accident. Hence, the multiplier of 17 would be applicable in view of the case "Sarla Verma Vs. Delhi Transport Smt. Kamlesh & Ors. Vs. Surya Bhan Yadav & Ors. Page 15 of 27 MACP No. 531/19; FIR No. 307/19 DOD:18.11.2023 Corporation", 2009 ACJ 1298 SC which has been reaffirmed by the pronouncement made by Constitutional Bench of Apex Court in the case titled as "National Insurance Company Ltd. Vs. Pranay Sethi & Ors.", passed in SLP(Civil) No. 25590/14 decided on 31.10.17.
26. For the purpose of future prospects, Hon'ble Supreme Court of India in Pranay Sethi's case (supra) has been pleased to discuss the applicable aspects of law pertaining to "additions" in the minimum wages on account of "inflation" for computation of compensation. It has been held by Hon'ble Apex Court in the afore-cited case that aspect of future prospects shall be a relevant consideration in computation of just and proper compensation even in cases where the deceased was self- employed. The guiding parameters laid down in Pranay Sethi's case (supra) have been reiterated by Hon'ble High Court of Delhi in appeal bearing MAC APP No. 798/2011 titled as Bajaj Allianz General Insurance Company Ltd. V. Pooja & Ors., decided on 02.11.17, allowing the addition of 40% on account of future prospects in such cases where the deceased was below the age of 40 years, if self-employed category. The addition on account of future prospects shall be 40% of the income of deceased. Accordingly, the monthly income of the deceased comes out to Rs. 20,000/- per month(rounded off)(Rs. 14,468/- plus 40% of 14,468/- = 20,255.20p).
Smt. Kamlesh & Ors. Vs. Surya Bhan Yadav & Ors. Page 16 of 27MACP No. 531/19; FIR No. 307/19 DOD:18.11.2023
27. In the peculiar facts of the case, the widow of deceased remarried after lapse of more than 1 ½ years from the death of the victim. As regards the dependency rights of a widow re-marrying are concerned, the settled position of law is that after the death of her husband, if the widow re-marries, there is no hindrance for the Tribunal to give the dependent widow, as on the date of accident, such share in the Award, which is her due by treating her as one of the entitled claimants. It is well-settled that the fact of re-marriage is not considered as a ground to deny, refuse or even reduce the Award of compensation. Our own Hon'ble High Court of Delhi in the case of "Dincy Devassy Vs. United India Insurance Co. & Ors.", MAC. APP. 26/19, decided on 12.12.2019, has been pleased to lay down the guiding principles in case of remarriage of a dependent widow for the purpose of a MACT case, wherein it has been held as under: -
"Para-3 The calculation of loss of dependency was on the basis of her dependency on her deceased husband; her loss is equal to the loss of dependency suffered by her parents-in-law. Her decision to re-marry was entirely her personal choice,over which nobody can have any say. Her right to claim compensation crystallized upon her husband‟s life being tragically snatched away in the motor accident. Therefore, simply because she has now re- married, her claim does not abate or lessen. Who can judge whether the second marriage was not a compromise because of her personal circumstances and whether it would have the same value emotionally and Smt. Kamlesh & Ors. Vs. Surya Bhan Yadav & Ors. Page 17 of 27 MACP No. 531/19; FIR No. 307/19 DOD:18.11.2023 psychologically as the first marriage. Her entitlement fructified when the dependency was calculated. Therefore, as an aggrieved widow, she would be entitled to a share of compensation apropos 'loss of dependency' of equal amount of her parents-in-law, who had lost their son...."
28. The present case is well guided by the pronouncement of Hon'ble High Court of Delhi in Dincy Devassy case (Supra). There is no bar under M.V Act against a widow from claiming compensation on account of her re-marriage. After the death of her husband, the widow continues to represent his estate, irrespective of her re-marriage, because she inherits part of the estate of her deceased husband. Motor Vehicle Act is a socio-welfare legislation and therefore, it is to be interpreted so as to fulfill its objective with which it was enacted. In the present case, widow of the deceased is the sole testifying witness for the purposes of proving the dependency upon the deceased for herself as well as other dependent claimants, who are parents and minor son of the deceased. It is worth mentioning that PW1/widow of the deceased, has not concealed any material fact and has honestly conceded that her minor son was in custody of his paternal grand parents, subsequent to her remarriage. It is also relevant that she does not have any child from her second marriage. The collective facts truly demonstrates the circumstances in which the widow of the deceased may have decided to remarry and the said fact shall not preclude her from inheriting the estate of her first husband, as she would have been entitled on the date of accident.
Smt. Kamlesh & Ors. Vs. Surya Bhan Yadav & Ors. Page 18 of 27MACP No. 531/19; FIR No. 307/19 DOD:18.11.2023
29. The monthly income of the deceased has been computed herein- above in para 24 of this judgement. As discussed, the deceased had four dependents, whom he left behind. Accordingly, as per law, one fourth is to be deducted towards personal and living expenses of the deceased from his income. The monthly contribution of the deceased to his family is calculated @ Rs. 15,000/- (Reliance placed on 2017 (13) SCALE 12 : 2017 XI AD (SC) 113 titled National Insurance Co. Ltd. Vs. Pranay Sethi and Ors & Sarla Verma Vs. Delhi Transport Corporation, 2009 ACJ 1298 SC. 2009 ACJ 1298 SC. Loss of dependency of the petitioners is, therefore, calculated @ Rs. 30,99,45.6p/- (Rs. 15,191.4p X 12 X 17). Hence, a sum of Rs. 30,99,100/- (rounded off) is awarded under this head, in favour of the petitioners.
LOSS OF LOVE & AFFECTION
30. Now considering the prayer of petitioners for grant of compensation on account of "Loss of Love & Affection" the binding legal position has been laid down by the celebrated judgment of Pranay Sethi's case (supra) and recent judgment titled New India Assurance Company Limited V. Somwati & Ors., Civil Appeal no. 3093 of 2020 dated 07.09.2020 of Supreme Court of India wherein it has been held that the petitioners are not entitled to be compensated under this head. Further, the Hon'ble High Court of Delhi in appeal titled as Pooja's case (supra), has Smt. Kamlesh & Ors. Vs. Surya Bhan Yadav & Ors. Page 19 of 27 MACP No. 531/19; FIR No. 307/19 DOD:18.11.2023 been pleased to observe in para 18 of the judgment that the constitution bench decision in Pranay Sethi's case (supra) does not recognize any other non-pecuniary head of damages. Hence, no amount of compensation is being awarded under this head.
LOSS OF CONSORTIUM
31. In view of the judgment of Hon'ble Supreme Court of India in case titled as, Pranay Sethi case (supra), the Tribunal considers that both the petitioners i.e. parents of deceased are entitled for payment of Rs. 40,000/- each towards "loss of consortium". By way of pronouncement of Pranay Sethi case (supra), the Hon'ble Supreme Court of India has been pleased to hold that there shall be an increase of 10% on account of 'inflation' after a period of three years. Applying, the afore-cited binding law the The Hon'ble High Court of Delhi in National Insurance Co. Ltd. Ltd. V. LR's of Sukhbir Singh, MAC. APP. 518/2013 vide judgment pronounced on 13.07.2023 has been pleased to direct the entitlement of dependents to 10% increase under this head, though, the date of accident was of 2011 and the date of impugned award was of 2013. Accordingly, all the petitioners are entitled to a sum of Rs. 44,000/- (40,000+10%) each towards "loss of consortium".
LOSS OF ESTATE & FUNERAL EXPENSES
32. In view of the facts and circumstances of the present case and in view of decision of Hon'ble Apex Court in the case of Pranay Sethi (supra) Smt. Kamlesh & Ors. Vs. Surya Bhan Yadav & Ors. Page 20 of 27 MACP No. 531/19; FIR No. 307/19 DOD:18.11.2023 which has been re-enforced in LR's of Sukhbir Singh (supra), the Tribunal considers that all the petitioners are also entitled for payment of Rs. 16,500/- (15,000+10%) on account of "loss of estate" and for equal payment of Rs. 16,500/- (15,000+10%) towards "funeral expenses".
33. Therefore, on the basis of the above discussion, the compensation is quantified as below:
HEAD AMOUNT
A. Loss of dependency Rs. 30,99,100/-
a. Rs. 14,468/- +40% of Rs. 14,468/- =
Rs. 20,255.20p
b. Rs. 20,255.20p minus ¼ of Rs. 20,255.20p
(i.e. Rs. 5,063.8p) = Rs. 15,191.4/-
c. Rs. 15,191.4p- X 12 X 17 = Rs. 30,99,045.6p/-
(rounded off to Rs. 30,99,100/-)
B. Loss of consortium (Rs. 44,000/- X 4) Rs. 1,76,000/-
C. Loss of estate Rs.16,500/-
D. Funeral Expenses Rs.16,500/-
(A+B+C+D) Rs. 33,08,100/-
Rounded off to Rs. 33,08,000/-
34. Now, the question which arises for determination is as to which of the respondents is liable to pay the compensation amount. The respondent Smt. Kamlesh & Ors. Vs. Surya Bhan Yadav & Ors. Page 21 of 27 MACP No. 531/19; FIR No. 307/19 DOD:18.11.2023 no. 1 & 2 who are the offending driver and registered owner of the offending vehicle respectively, have neither lead any defence evidence nor cross- examined or rebutted the affirmative evidence on behalf of the petitioners. Respondent no. 3/insurance company also did not adduce any evidence. In defence to the claim, as per its reply, contributory negligence was claimed at the ends of the victim car in which the deceased was travelling. However, the insurance company has failed to lead any evidence in defence to support its vague objections. Admittedly, the insurer has no statutory defence as available u/s149(2) MV Act. It is admitted case of insurance company that there is no violation or breach of any of the terms or conditions of insurance policy of the offending bus, for the relevant period. Keeping in view the existence of valid insurance policy and in the absence of any statutory defences available to the insurance company, respondent no. 3/insurance company concerned is legally liable to pay the compensation amount. Issue no. 2 is decided accordingly.
ISSUE NO. 3 RELIEF
35. In view of my finding on issues no. 1 & 2, I award a sum of Rs. 33,08,000/- (including interim award amount, if any) alongwith interest @ 7.5% per annum w.e.f date of filing the claim petition i.e. 30.08.2019(except for the period of delay w.e.f. 03.05.2023 till 18.11.2023) till the date of its realization, in favour of Lrs of deceased/petitioners and against the respondents. (Reliance placed on United India Insurance Co.
Smt. Kamlesh & Ors. Vs. Surya Bhan Yadav & Ors. Page 22 of 27MACP No. 531/19; FIR No. 307/19 DOD:18.11.2023 Ltd. V. Baby Raksha & Ors, MAC APP. No. 36/2023 passed by Hon'ble Delhi High Court on 21.04.2023).
APPORTIONMENT
36. It is pertinent to mention here that petitioners have failed to get their statements recorded in terms of clause 29 of MCTAP despite grant of sufficient time and opportunities. It is relevant to mention here that since, the petitioner no. 1 Smt. Kamlesh has re-married after about one and half year of the death of deceased and also keeping in view the fact petitioner no. 2 namely master Harsh who is minor son of deceased is residing with parents of deceased, it is hereby ordered that out of the awarded amount along with proportionate interest; the petitioner no. 1 namely Smt. Kamlesh (widow of deceased) shall be entitled to 20% share amount out of the total compensation amount, the petitioner no. 2 namely Master Harsh (minor son of deceased) shall be entitled to 50% share amount out of the total compensation amount, the petitioner no. 3 namely Smt. Guddo (mother of deceased) shall be entitled to 20% share amount out of the total compensation amount and the petitioner no. 4 namely Sh. Satey Ram (father of deceased) shall be entitled to 10% share amount out of the total compensation amount,
37. Out of share amount of petitioner no. 1, a sum of Rs. 2,00,000/- (Rupees Two Lakhs Only) is directed to be immediately released to her through her MACT bank account only and remaining amount Smt. Kamlesh & Ors. Vs. Surya Bhan Yadav & Ors. Page 23 of 27 MACP No. 531/19; FIR No. 307/19 DOD:18.11.2023 is directed to be kept in the form of FDRs in the multiples of Rs. 20,000/- each for three months, six months, nine months, one year and so on and so forth, having cumulative interest.
38. The entire share amount alongwith proportionate interest of petitioner no. 2 be kept in FDR for the period till he attains the age of majority and thereafter, a sum of Rs. 3,00,000/- be released to him in his MACT bank account and remaining amount is directed to be kept in the form of FDRs in the multiples of Rs. 20,000/- for three months, six months, nine months and one year and so on and so forth, having cumulative interest.
39. Out of share amount of petitioner no. 3, a sum of Rs. 2,00,000/- (Rupees Two Lakhs Only) is directed to be immediately released to her through her MACT bank account only and remaining amount is directed to be kept in the form of FDRs in the multiples of Rs. 20,000/- each for three months, six months, nine months, one year and so on and so forth, having cumulative interest.
40. Out of share amount of petitioner no. 4, a sum of Rs. 1,00,000/- (Rupees One Lakh Only) is directed to be immediately released to him through his MACT bank account only and remaining amount is directed to be kept in the form of FDRs in the multiples of Rs. 10,000/- each for three months, six months, nine months, one year and so on and so forth, having cumulative interest.
Smt. Kamlesh & Ors. Vs. Surya Bhan Yadav & Ors. Page 24 of 27MACP No. 531/19; FIR No. 307/19 DOD:18.11.2023
41. All the FDRs to be prepared as per aforesaid directions, shall be subject to the following conditions:-
(a) The Bank shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the claimant(s) i.e. the savings bank account(s) of the claimant(s) shall be an individual savings bank account(s) and not a joint account(s).
(b) The original fixed deposit shall be retained by the bank in safe custody.
However, the statement containing FDR number, FDR amount, date of maturity and maturity amount shall be furnished by bank to the claimant(s).
(c) The monthly interest be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant(s) near the place of their residence.
(d) The maturity amounts of the FDR(s) be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant(s) near the place of their residence.
(e) No loan, advance, withdrawal or pre-mature discharge be allowed on the fixed deposits without permission of the Court.
(f) The concerned bank shall not to issue any cheque book and/or debit card to claimant(s). However, in case the debit card and /or cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount.
(g) The bank shall make an endorsement on the passbook of the claimant(s) to the effect that no cheque book and/or debit card have been issued and shall not be issued without the permission of the Court and claimant(s) shall produce the passbook with the necessary endorsement before the Court on the next date fixed for compliance.
Smt. Kamlesh & Ors. Vs. Surya Bhan Yadav & Ors. Page 25 of 27MACP No. 531/19; FIR No. 307/19 DOD:18.11.2023
(h) It is clarified that the endorsement made by the bank alongwith the duly signed and stamped by the bank official on the passbook(s) of the claimant(s) is sufficient compliance of clause(g) above.
(i) The petitioner is directed to open a Motor Accident Claims Annuity (Term) Deposit Account (MACAD) in terms of order dated 07.12.2018 of Hon'ble Justice J.R. Midha in case titled as Rajesh Tyagi and Others Vs. Jaibir Singh and Others F.A.O No. 842/03 as per clause 31 of MCTAP and form VIII titled as Motor Accident Claims Annuity Deposit (MACAD) Scheme as directed in the said order.
(j) Concerned Manager, SBI, Rohini Court branch is further directed to disburse the FD amount in Motor Accident Claims Annuity Deposit (MACAD) Scheme account as directed by Hon'ble Delhi High Court vide order dated 07.12.18, on completing necessary formalities as per rules.
42. Respondent no. 3/The New India Assurance Co. Ltd., is directed to deposit the award amount with SBI, Rohini Courts branch within 30 days as per above order, failing which insurance company shall be liable to pay interest @ 12% p.a for the period of delay. Concerned Manager, SBI, Rohini Court Branch is directed to transfer the respective share amounts immediately to the MACT bank account of petitioners, on completing necessary formalities as per rules. He be further directed to keep the said amount in fixed deposit in its own name till the claimants approach the bank for disbursement so that the award amount starts earning interest from the date of clearance of the cheques. Copy of the award be given dasti to the petitioners and also to counsel for the insurance company for Smt. Kamlesh & Ors. Vs. Surya Bhan Yadav & Ors. Page 26 of 27 MACP No. 531/19; FIR No. 307/19 DOD:18.11.2023 compliance. Copy of this award alongwith one photograph each, specimen signatures, copy of bank passbooks and copy of residence proof of the petitioners, be sent to Nodal Officer of SBI, Rohini Court, Branch, Delhi for information and necessary compliance. Form XV & Form XVII in terms of MCTAP are annexed herewith as Annexure-A. Copy of order be also sent to concerned M.M and DLSA as per clause 31 and 32 of MCTAP.
Announced in the open Court on 18.11.2023 (PREETI AGRAWAL GUPTA) Judge MACT-2 (North) Rohini Courts, Delhi Smt. Kamlesh & Ors. Vs. Surya Bhan Yadav & Ors. Page 27 of 27