Delhi District Court
129/09 Rani Devi vs Ganga Singh Page 1 Of 21 on 9 March, 2018
129/09 Rani Devi vs Ganga Singh Page 1 of 21
IN THE COURT OF SH. AMIT BANSAL , PRESIDING OFFICER, MOTOR
ACCIDENT CLAIMS TRIBUNAL, NORTH WEST DISTRICT, ROHINI
COURTS, DELHI
New No. 4996216
MACT PETITION No. : 129/09
UNIQUE ID No. : 02404C0197532009
1. Smt. Rani Devi
(wife of deceased Sh. Shyam Chander Singh)
.....Petitioner No.1.
2. Sh. Vivek Kumar Singh
(major son of deceased)
......Petitioner No.2.
3. Sh. Kumar Abhishek
( major son of deceased)
.......Petitioner No.3.
4. Sh. Ritesh Kumar
(minor son of deceased)
.......Petitioner No.4.
All R/o Vill. Areraj, PO & PS Govindganj, District Motihari, (East
Champaran), Bihar
Also At: Near Chanchal Baba Math, Ambika Nagar, Motihari, (East
Champaran), Bihar.
Versus
1. Sh. Ganga Singh S/o Sh. Tej Pal
R/o Village Mahwa Khurd,
PO Harsona, PS Dholna, Distt. Ettah, UP
.... (Driver /R1)
2. Sh. Satish Kumar Shukla S/o Sh. Maya Ram
R/o J305/2, Kartar Nangar, Ghonda, Delhi.
......... (Owner /R2)
3. M/s National Insurance Co Ltd.
Div. No. XII, 351200, 6/90, 3rd Floor, Padam Singh Road,
Karol Bagh, New Delhi.
......... (Insurance/R3)
..... Respondents
129/09 Rani Devi vs Ganga Singh Page 1 of 21
129/09 Rani Devi vs Ganga Singh Page 2 of 21
Other details
DATE OF INSTITUTION : 23.01.2009
DATE OF RESERVING JUDGMENT : 06.03.2018
DATE OF PRONOUNCEMENT : 09.03.2018
FORM - V
1. COMPLIANCE OF THE PROVISIONS OF THE MODIFIED CLAIMS
TRIBUNAL AGREED PROCEDURE TO BE MENTIONED IN THE
AWARD AS PER FORMAT REFERRED IN CLAUSE 4.3 OF THE
ORDER PASSED BY THE HON'BLE HIGH COURT IN FAO 842/2003
RAJESH TYAGI Vs. JAIBIR SINGH & ORS. & SOBAT SINGH VS
RAMESH CHANDRA GUPTA & ANR., MAC.APP 422/2009 VIDE
ORDER DATED 15.12.2017
1. Date of the accident 08.10.2008
2. Date of intimation of the accident by the No provision of DAR
investigating officer to the Claims Tribunal was there at that
(Clause 2) time.
3. Date of intimation of the accident by the No provision of DAR
investigating officer to the insurance company. was there at that
(Clause 2) time.
4. Date of filing of Report under section 173 Not mentioned in the
Cr.P.C. before the Metropolitan Magistrate record.
(Clause 10)
5. Date of filing of Detailed Accident Information No provision of DAR
Report (DAR) by the investigating Officer before was there at that
Claims Tribunal (Clause 10) time.
6. Date of Service of DAR on the Insurance No provision of DAR
Company (Clause 11) was there at that
time.
7. Date of service of DAR on the claimant (s). No provision of DAR
(Clause 11) was there at that
129/09 Rani Devi vs Ganga Singh Page 2 of 21
129/09 Rani Devi vs Ganga Singh Page 3 of 21
time.
8. Whether DAR was complete in all respects? No provision of DAR
(Clause 16) was there at that
time.
9. If not, whether deficiencies in the DAR removed No provision of DAR
later on? was there at that
time.
10. Whether the police has verified the documents No provision of DAR
filed with DAR? (Clause 4) was there at that
time.
11. Whether there was any delay or deficiency on No provision of DAR
the part of the Investigating Officer? If so, was there at that
whether any action/direction warranted? time.
12. Date of appointment of the Designated Officer No provision of DAR
by the insurance Company. (Clause20) was there at that
time.
13. Name, address and contact number of the No provision of DAR
Designated Officer of the Insurance Company. was there at that
(Clause 20) time.
14. Whether the designated Officer of the Insurance No provision of DAR
Company submitted his report within 30 days of was there at that
the DAR? (Clause 20) time.
15. Whether the insurance company admitted the No provision of DAR
liability? If so, whether the Designated Officer of was there at that
the insurance company fairly computed the time.
compensation in accordance with law. (Clause
23)
16. Whether there was any delay or deficiency on No provision of DAR
the part of the Designated Officer of the was there at that
Insurance Company? If so, whether any time.
action/direction warranted?
17. Date of response of the claimant (s) to the offer No provision of DAR
of the Insurance Company .(Clause 24) was there at that
time.
18. Date of the Award 09.03.2018
19. Whether the award was passed with the consent No
of the parties? (Clause 22)
20. Whether the claimant(s) were directed to open Yes
saving bank account(s) near their place of
residence? (Clause 18)
21. Date of order by which claimant(s) were 08.01.2018
directed to open saving bank account (s) near
his place of residence and produce PAN Card
129/09 Rani Devi vs Ganga Singh Page 3 of 21
129/09 Rani Devi vs Ganga Singh Page 4 of 21
and Aadhar Card and the direction to the bank
not issue any cheque book/debit card to the
claimant(s) and make an endorsement to this
effect on the passbook(s). (Clause 18)
22. Date on which the claimant (s) produced the 20.02.2018
passbook of their saving bank account near the
place of their residence along with the
endorsement, PAN Card and Aadhar Card?
(Clause 18)
23. Permanent Residential Address of the As mentioned above
Claimant(s) (Clause 27)
24. Details of saving bank account(s) of the Petitioner no. 1 Smt.
claimant(s) and the address of the bank with Rani Devisavings
IFSC Code (Clause 27) bank a/c no.
23980110071311,
Petitioner no. 2 Sh.
Vivek Kumar savings
bank a/c no.
23980110071335,
Petitioner no. 3 Sh.
Kumar Abhishek
savings bank a/c
23980110071342 ,
petitioner no. 4 Sh.
Ritesh Kumar savings
bank a/c
23980110071366
with UCO Bank,
Main Road Motihari
Branch, East
Champaran, Bihar
IFSC : UCBA0002398
25. Whether the claimant(s) saving bank account(s) Yes
is near his place of residence? (Clause 27)
26. Whether the claimant(s) were examined at the Yes
time of passing of the award. (Clause 27)
27. Account number/CIF No, MICR number, IFSC 86143654123,
Code, name and branch of the bank of the 110002427,
Claims Tribunal in which the award amount is to SBIN0010323, SBI,
be deposited/transferred. (in terms of order Rohini Courts, Delhi
dated 18.01.2018 of Hon'ble Delhi High Court in
FAO 842/2003 Rajesh Tyagi vs Jaibir Singh.
129/09 Rani Devi vs Ganga Singh Page 4 of 21
129/09 Rani Devi vs Ganga Singh Page 5 of 21
JUDGMENT
1. Present claim petition has been preferred under Section 166 and 140 of Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act') claiming compensation for a sum of Rs. 55,00,000/ (Rupees fifty five Lakhs Only) along with interest @ 18% in respect of accidental death of Sh. Shyam Chander Singh S/o Late Raja Singh in a motor vehicular accident.
2. The petitioners have averred in the petition that on 08.10.2008 at about 10:00 pm, the deceased Mr. Shyam Chander Singh was going to take a bus at Britania Chowk but when the deceased was crossing the road, then one tanker bearing registration no. DL1LE8016 (hereinafter referred to as 'offending vehicle') being driven by respondent no. 1 in rash and negligent manner and in high speed came from Punjabi Bagh side and hit the deceased with great force. As a result of the said accident deceased fell down on the road and sustained grievous injuries/fatal injuries.
From the place of the accident, the deceased was removed to Dr BSA hospital, Rohini where he was declared dead by the doctors and his postmortem was conducted by doctors of BJRM hospital, Delhi vide P.M. No. 1036/08.
It has been mentioned in the petition that FIR No. 634/2008 dated 09.10.2008 u/s 279/304 A IPC was registered at PS Saraswati Vihar.
It was mentioned in the petition that at the time of the death, the age of the deceased was about 49 years, he was a LIC Agent and was earning about Rs. 50,000/ per month.
On the basis of these averments, the petitioners/claimants have claimed compensation to the tune of Rs. 55,00,000/ along with interest @ 18% per annum against the respondents.
3. R1/Sh. Ganga Singh who is the driver of the offending vehicle filed written statement wherein he admitted that the tanker bearing no. DL1LE8016 (offending vehicle) caused the accident but he was not aware as to who was 129/09 Rani Devi vs Ganga Singh Page 5 of 21 129/09 Rani Devi vs Ganga Singh Page 6 of 21 the owner of the said vehicle. He has stated that he was not the driver of the offending vehicle and one Vinod was driving the said tanker at the time of accident who ran away from the spot after causing accident. He further stated that he was sleeping in the cabin of the offending vehicle at that time. He has stated that he has been falsely implicated in the present case. He has stated that he took lift in the tanker driven by Vinod to go to his sister's house at Mukandpur as she was not feeling well. He stated that he was employed with M/s Sahni Enterprises with name of his owner as Mr. Sanjeev Sahni and that he also drives a truck to carry poly pack milk from Delhi Milk Scheme Plant, Shadipur Depot, Delhi. He stated that offending vehicle/tanker caused accident just after 1520 minutes of leaving the DMS plant and the IN and OUT entries of DMS plant of offending vehicle would show the name of the driver as Vinod.
4. R2/Sh. Satish Kumar who is the owner of the offending vehicle has filed his written statement and stated that all the allegations made by the petitioners are false and fabricated. He stated that the offending vehicle has been wrongly implicated in the said accident by petitioners in connivance with the local police as the driver was driving the same in accordance with the traffic rules and regulations. He admitted that he is the owner of the offending vehicle. He has stated that offending vehicle was duly insured with insurance co/R3 and if any compensation is awarded to the petitioners, only R3 shall be liable to pay the same.
5. R3/National Insurance co. Ltd filed its written statement and submitted that the vehicle bearing no. DL1LE8016 (offending vehicle) was insured with it vide policy no. 351200/31/07/6300004194 valid from 23.02.2008 to 22.02.2009 i.e. covering the date of accident dated 08.10.2008. It was further interalia submitted that the accident was caused due to negligence on the part of the deceased himself while crossing the road without caring for the traffic moving on the road.
6. From the pleadings of the parties, the following issues were finally framed 129/09 Rani Devi vs Ganga Singh Page 6 of 21 129/09 Rani Devi vs Ganga Singh Page 7 of 21 by Ld. Predecessor of this court vide order dated 14.12.2010: (1) Whether on 08.10.2008 at about 10:00 pm at Britania Chowk Vehicle No. DL1LE8016 (offending vehicle) which was being driven rashly and negligently hit Sh. Shyam Chander Singh and caused his death?
(2). Whether deceased had contributed to the accident? (3). Whether petitioners are entitled to compensation, if so, to what amount and from whom? OPP (4). Relief.
7. The petitioners in support of their case have examined total two witnesses in all i.e. Smt. Rani Devi (petitioner no.1/wife of deceased) as PW1 and Sh. Kumar Abhishek (petitioner no. 3/son of deceased) as PW2.
On the other hand, respondents did not lead any evidence in support of their respective case.
8. I have heard the arguments addressed on behalf of ld counsel for petitioners, ld counsel for R1 and ld counsel for R3. Now, I proceed to discuss the issues in the succeeding paragraphs.
9. Issue wise findings are as under: ISSUES NO. 1 & 2 Issue No. (1) & (2) being inter related and inter connected are being taken up together and shall be decided together .
The onus to prove issue no. 1 beyond preponderance of probabilities is upon the petitioners, whereas, the onus to prove issue no. 2 beyond preponderance of probabilities is upon R3/insurance co.
PW1 Smt. Rani Devi (petitioner no. 1) and PW2 Kumar Abhishek (petitioner no. 3) both are eye witnesses and have examined themselves in support of the petition. They have filed and proved their evidence by way of affidavits as Ex. PW1/A and Ex. PW2/1 respectively. They deposed that on 08.10.2008 at about 10:00 pm they were coming from K Block, Shakurpur to 129/09 Rani Devi vs Ganga Singh Page 7 of 21 129/09 Rani Devi vs Ganga Singh Page 8 of 21 Britania Chowk to board the bus with the deceased. It was deposed that PW1 , PW2, their younger brother and maternal uncle of PW2 cross the road from CNG Pump side to Britania Chowk. They have deposed that the deceased was waiting at the side of the road for crossing the road and in the meantime tanker bearing registration no. DL1LE8016 (offending vehicle) came from Britania Flyover Punjabi Bagh side being driven by R1 in a rash and negligent and zig zag manner at high speed and hit the deceased.
PW2 Sh. Kumar Abhishek has further deposed that after the said accident, the driver of the offending vehicle tried to run away without vehicle but his maternal uncle caught hold of him and some person called 100 number. He has deposed that the PCR took the deceased to Ambedkar hospital where his father was declared dead. He has deposed that IO had recorded his statement in the hospital and postmortem of deceased was conducted in BJRM hospital, Delhi.
PW2 was cross examined on behalf of R1 wherein he has deposed that neither there was any red light nor any zebra crossing at the spot. He deposed that he did not know whether any CCTV camera was installed at the spot or not. He has admitted that after calling the PCR he accompanied the injured to the hospital in PCR van. He has denied the suggestion that he was not an eye witness of the accident.
He was not cross examined on behalf of R2 and R3.
PW1 in her cross examination by ld counsel for R3 admitted that she was also accompanying her deceased husband at the time of accident. She admitted that they all had crossed from the same point of the road to cross it on the other side including the deceased. She did not know if at the place of her crossing the road, a bridge(Pul) was coming down. She did not understand the meaning of zebra crossing and also did not know the meaning of slope of the flyover from where the deceased and they had crossed the road. She denied the suggestion that accident had occurred due to self negligence of the deceased as he had crossed the road without caring for the 129/09 Rani Devi vs Ganga Singh Page 8 of 21 129/09 Rani Devi vs Ganga Singh Page 9 of 21 traffic coming from the flyover side leading to Wazirpur side where there was no Zebra crossing on the crossing point.
10. It has been argued that the deceased was also negligent while crossing the road at a point where there was no Zebra crossing and thus also contributed to the cause of accident. It was further argued that if the deceased would have been careful/vigilant then the said accident would not have occurred.
Both PW1 and PW2 who were eye witnesses of the accident have deposed to the effect that the case accident was caused by the offending vehicle being driven by R1 in a rash and negligent manner, in a zig zag way and at a high speed. The certified copies of criminal case record Ex. PW1/1 (colly) would also show that the case FIR No. 634/08 u/s 279/304A IPC PS Saraswati Vihar was registered against Ganga Singh/R1. The charge sheet u/s 279/304A IPC was also filed against R1/driver of the offending vehicle. R1 was also caught at the spot. There is no contradiction in the said testimonies of PW1 and PW2 and the charge sheet against R1. The postmortem report no. 1036/08 dated 09.10.2008 upon the deceased at BJRM hospital would also show the cause of death in the case was haemorragic shock due to multiple bony and visceral injuries produced by heavy blunt force impact. The said cause of death is in consonance with the injuries which a person can sustain in a road traffic accident. The brief history in the said postmortem report would mention that it was case of road traffic accident near CNG Pum at Britania flyover for which the deceased was taken to BSA hospital where he was declared brought dead on 08.10.2008 at 10:25 pm. Nothing has also appeared in the cross examination of PW1 and PW2 to discredit their testimonies. In the said circumstances, it has been clearly proved beyond preponderance of probabilities that the case accident was caused at the above said date, time and place and in the above said manner by the rash and negligent driving of R1 by which he drove the offending vehicle rashly and negligently at a fast speed and hit the deceased thereby causing his death.
129/09 Rani Devi vs Ganga Singh Page 9 of 21 129/09 Rani Devi vs Ganga Singh Page 10 of 21In view of the aforesaid discussion and the material and evidence which has come on record, it is held that the petitioners have been able to prove on the basis of preponderance of probabilities that the deceased expired on 08.10.2008 due injuries sustained by him in a road accident which had taken place on 08.10.2008 at about10:00 pm at ring road near CNG pump, while coming down from Britania flyover due to rash and negligent driving of the offending vehicle by R1.
11. As far as issue no. 2 regarding contributory negligence of deceased is concerned, the testimony of PW1, PW2, attending circumstances of the accident and the certified copy of charge sheet Ex. PW1/1 on record have to be analyzed.
PW1 has deposed that her husband was crossing the road when the offending vehicle hit him. PW2 on the other hand has deposed that the deceased was waiting at the side of the road for crossing the road when the offending vehicle hit him. There is variation in the said testimony of PW1 and PW2. It is pertinent to note that the case FIR was registered on the statement of PW2 (complainant/informant) wherein he has stated that on 08.10.2008 he along with his parents and younger brother had gone to meet his maternal uncle at K238239 Shakurpur JJ Colony, Delhi. He further stated that after taking the dinner they at about 9:40 pm left for catching a bus from Britania chowk to Khanpur. He stated that at about 10:00 pm that when he, his mother, his father, his younger brother and maternal uncle were trying to cross the road from in front of CNG pump near Britania flyover towards Britania then he, his mother, his brother and maternal uncle crossed the road but his father (since deceased) was left somewhat behind them and while he was crossing the road then the offending vehicle which was coming from Punjabi Bagh side on the Britania Flyover came at a fast speed and hit his father who was at that time crossing the road. The said statement is in contradiction to the testimony of PW2 as in his testimony he has deposed that at the time of accident his father was waiting at the side of the road for crossing the road, whereas, in his statement on which the case FIR was registered, he has categorically stated 129/09 Rani Devi vs Ganga Singh Page 10 of 21 129/09 Rani Devi vs Ganga Singh Page 11 of 21 that his father was hit by the offending vehicle when he was in fact crossing the road. The site plan which is a part of charge sheet Ex. PW1/1 (colly) would also show that the accident occurred at point A i.e. the place near the middle of the flyover.
PW2 has categorically admitted in his cross examination that neither there was any red light at the spot nor there was any Zebra crossing at the road. It was thus illegal for him to cross the road and that to at a flyover where traffic moves at a fast speed to cross the road without there being any red light to stop the traffic or without there being any Zebra crossing entitling him to cross the road. It would show that although R1 being the driver of the offending vehicle cannot escape culpable negligence being primarily responsible for the accident but at the same time, if the deceased had been fully cautious, he could have also averted the accident. In the said circumstances, it can be safely held that the deceased was also having a contributory negligence in the cause of the accident.
In view of the aforesaid discussion and the circumstances in which the accident took place, the negligence on the part of R1 is assessed at 90% and the contributory negligence on the part of deceased in causing the accident is assessed at 10%.
Issue no.1 & 2 are decided accordingly.
12. Issue No. (3) In view of my findings on issue no.1, the petitioners are entitled to compensation.
(a) PW1 (wife of the deceased) has deposed through her evidence by way of affidavit Ex. PW1/A and has proved various documents Ex. PW1/1 to Ex. PW1/7. She has proved the income tax return of the deceased for the financial years 200506, 200607 and 200708 as Ex. PW1/4 (colly) wherein the date of birth of deceased has been mentioned as 08.01.1960. It would show that the deceased was aged about 48 years and 9 months at the time of his death. (date of birth is 08.01.1960 and date of death is 129/09 Rani Devi vs Ganga Singh Page 11 of 21 129/09 Rani Devi vs Ganga Singh Page 12 of 21 08.10.2008).
PW1 deposed that her husband was a LIC agent and was earning Rs. 50,000/ per month on commission basis.
As discussed above, the income tax returns of the deceased have been proved as Ex. PW1/4 (colly). Ex. PW1/4 show the latest income tax return of the deceased for the financial year 200708 (assessment year 2008 2009). This return was filed by Smt. Rani Devi i.e. legal heir of the deceased and was admitted during arguments as the ITR to be taken into consideration for calculating the income of the deceased. It would show the gross total income of the deceased as Rs. 1,69,100/ and total taxes of Rs. 37,545/. This document also shows a refund of tax of Rs. 35,916/. Therefore, total tax comes to Rs. 1629/ (37,545/ minus Rs. 35,916/) which was paid by the petitioners. Hence, the net income of deceased comes to Rs. 1,67,471/ p.a. (Rs. 1,69,100/ minus tax of Rs. 1629/) and monthly income comes to Rs.13,955/ (after rounding off) (1,67,471/ divided by 12).
(b) Addition of future prospects If addition in income towards future prospects is to be made In this regard, reference should be made to the latest Constitutional Bench Judgment of Hon'ble Supreme Court of India in case of National Insurance Company Limited vs. Pranay Sethi & Ors, SLP (Civil) No. 25590 of 2014, date of decision 31.10.2017.
In the said judgment of Pranay Sethi (Supra), the Hon'ble Apex Court interalia held as under:
61. In view of the aforesaid analysis, we proceed to record our conclusions:
(i).........................................................................................
(ii) .....................................................................................
(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 129/09 Rani Devi vs Ganga Singh Page 12 of 21 129/09 Rani Devi vs Ganga Singh Page 13 of 21 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 selfemployed 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 the 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 future 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. "
(.... Emphasis Supplied) In the case in hand, the deceased was a self employed person who was a LIC agent and in terms of above said judgment, while determining his income for computing compensation, future prospects have to be added to fall within the ambit and sweep of just compensation under Section 168 of M.V. 129/09 Rani Devi vs Ganga Singh Page 13 of 21 129/09 Rani Devi vs Ganga Singh Page 14 of 21 Act.
The age of the deceased, as discussed above, in the present case was about 48 years 9 months. In view of paragraph no. 61 (iv) of above said judgment in Pranay Sethi (Supra), the deceased would be entitled to an addition of 25% of the established income as he was between the age group of 40 to 50 years at the time of his death.
The monthly income of the deceased is thus calculated as 13,955/+25% of 13,955/ which comes to Rs. 13,955+ Rs. 3488/(after rounding off). = Rs. 17,443/.
(c) Deduction towards personal and living expenses of the deceased:
Petitioner no. 1 is the wife of deceased, petitioners no 2 to 3 are the major sons of deceased and petitioners no. 4 is the minor son of the deceased.
In the present case, the deceased was married and his dependent family members were 4, hence, the deduction towards personal and living expenses of the deceased should be 1/4th in view of the settled law by the Hon'ble Apex Court in cases of Sarla Verma vs. Delhi Transport Corporation, 2009 ACJ 1298: (2009) 6 SCC 121 which has been upheld by the Constitutional Bench of Hon'ble Apex Court in the case of Pranay Sethi (Supra) in paragraph no 61 (v) of the judgment.
(d) Selection of multiplier:
As discussed above, the age of the deceased was about 48 years 9 months at the time of his death. In view of paragraph no. 61(vii) of the judgment in the case of Pranay Sethi (Supra), the age of deceased should be the basis for applying the multiplier. As per the case of Sarla Verma (Supra), the multiplier of 13 is to be adopted when the age of the victim is between 46 years to 50 years. Accordingly, the relevant multiplier would be "13" as per judgment in case of Sarla Verma (Supra) which has been upheld in paragraph no. 61 (vi) in case of Pranay Sethi (Supra).129/09 Rani Devi vs Ganga Singh Page 14 of 21 129/09 Rani Devi vs Ganga Singh Page 15 of 21
(e) Loss of financial dependency In the light of aforesaid facts, loss of financial dependency of the petitioner comes to Rs. 20,40,831/ [i.e. Rs. 17,443/ ( per month income of the deceased) X12 X13 (multiplier) X3/4 (dependency)].
13. Compensation under nonpecuniary heads/conventional heads:
In view of the judgment of Constitution Bench of Hon'ble Apex Court in case of Pranay Sethi (Supra), as held in paragraph number 61 (viii) of the said judgment, the petitioners would be entitled to Rs. 15,000/ towards loss of estate and Rs. 15,000/ towards funeral expenses. Petitioner no. 1 who is the wife of deceased would be entitled to Rs. 40,000/ towards loss of consortium.
14. LOSS OF LOVE & AFFECTION The Hon'ble Delhi High Court in the latest case of Bajaj Allianz General Insurance Company Ltd. Vs Pooja & Ors, MAC Appeal 798/2011, date of decision 02.11.2017 after referring to the judgment of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors.", passed in SLP(Civil) No. 25590/14 decided on 31.10.17 delivered by Constitutional Bench of Hon'ble Apex Court, accepted the submissions of the ld counsel for the insurer that nonpecuniary heads of damages would have to be restricted to the total of Rs. 70,000/ only, in view of the dispensation in Pranay Sethi (Supra). The Hon'ble Delhi High Court in the said case further held that the Constitution Bench decision did not recognize any other nonpecuniary head of damages (except loss of estate, loss of consortium and funeral expenses).
In view of above said discussion, the petitioners would not be entitled to any amount under the said head of loss of love and affection.
15. Petitioners/claimants are accordingly entitled to compensation computed as under:
Loss of financial dependency Rs. 20,40,831/ Loss of Estate Rs. 15,000/ Loss of Consortium Rs. 40,000/ Funeral Expenses Rs. 15,000/ 129/09 Rani Devi vs Ganga Singh Page 15 of 21 129/09 Rani Devi vs Ganga Singh Page 16 of 21 ________________ Total Rs. 21,10,831/ ________________ [Rounded off to Rs. 21,10,850/]
16. In view of my findings on issues no. 1 & 2, 10% has to be deducted on account of contributory negligence of the deceased in causing the accident, which comes to Rs. 18,99,765/ (Rs. 21,10,850/ minus Rs. 2,11,085/). (Rounded off to Rs. 19,00,000/) (Rupees Nineteen lakhs only) The claimants/petitioners are also entitled to interest @ 9% p.a. for the date of filing of petition i.e. w.e.f 23.01.2009 till realisation of the compensation amount. The said interest @ 9% p.a. was awarded on the award amount by the Hon'ble Apex Court in case Municipal Corporation of Delhi vs. Association of Victims of Uphaar Tragedy, 2012 ACJ 48 (SC) .
The amount of interim award, if any, shall however be deducted from the above amount, if the same has already been paid to the petitioners.
17. Liability In the case in hand, the National insurance company/R3 has not been able to show anything on record that R1, who was the driver of the offending vehicle was not having any valid driving licence to drive the offending vehicle or that the permit of offending vehicle was not valid and as per settled law, since the offending vehicle was duly insured with the insurance company/R3, hence R3 is liable to pay the entire compensation amount to the petitioner as per law.
18. Accordingly, in the case in hand, in terms of order dated 16.05.2017 of Hon'ble High Court by Hon'ble Mr. Justice J.R. Midha in case of Rajesh Tyagi Vs. Jaibir Singh and Ors., R3/National Insurance co is directed to deposit the awarded amount of Rs. 19,00,000/ within 30 days 129/09 Rani Devi vs Ganga Singh Page 16 of 21 129/09 Rani Devi vs Ganga Singh Page 17 of 21 from today within the jurisdiction of this Tribunal i.e. State Bank of India, Rohini Courts Branch, Delhi alongwith interest at the rate of 9 % per annum from the date of filing of the petition till notice of deposition of the awarded amount to be given by R3/Insurance co to the petitioners and their advocates and to show or deposit the receipt of the acknowledgement with the Nazir as per rules. R3/insurance co further directed to deposit the awarded amount in the above said bank by means of cheque drawn in the name of above said bank alongwith the name of the claimants mentioned therein. The said bank is 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 awarded amount starts earning interest from the date of clearance of the cheque.
APPORTIONMENT
19. Statement of petitioners in terms of clause 27 MCTAP was recorded. I have heard the petitioners and ld. counsel for the petitioners/claimants regarding financial needs of the injured/petitioner and in view of the judgment in the case of General Manager, Kerala State Road Transport Corporation Vs. Susamma Thomas & Others, 1994 (2) SC, 1631, for appropriate investments to safeguard the amount from being frittered away by the beneficiaries owing to their ignorance, illiteracy and being susceptible to exploitation, following arrangements are hereby ordered: Keeping in view the facts and circumstances of the case, on realization, an amount of Rs. 5,00,000/ each be given to petitioners no. 2 & 3 namely Sh.Vivek Kumar Singh and Sh. Kumar Abhishek who are sons of deceased respectively and from the same an amount of Rs. 1,00,000/ each be released to them in their respective savings bank account i.e. savings bank account no. 23980110071335 with (in the name of Sh. Vivek Kumar) and savings bank a/c no. 23980110071342 with UCO Bank, Main Road Mothihari Branch, East Chamaparan, Bihar (in the name of Sh. Kumar Abhishek) as per rules i.e. the branches near their place of residence (as mentioned in statement recorded under clause 27 MCTAP) and their respective remaining amount be kept in their respective names in 60 FDRs of 129/09 Rani Devi vs Ganga Singh Page 17 of 21 129/09 Rani Devi vs Ganga Singh Page 18 of 21 equal amount for a period of one month to 60 months with cumulative interest without the facility of advance, loan and premature withdrawal without the prior permission of the Tribunal.
Further, an amount of Rs. 5,00,000/ be given to Sh. Ritesh petitioner no. 4 who is minor son of deceased and entire amount be kept in FDR in his name till he attains the age of majority. Further, remaining amount be given to Smt. Rani Devi (who is wife of deceased ) out of which an amount of Rs. 1,00,000/ be released to her in her savings bank a/c no.23980110071311 with UCO Bank, Main Road Motihari Branch, East Champaran, Bihar i.e. the branch near her place of residence (as mentioned in statement recorded under clause 27 MCTAP) and remaining amount be kept in 60 FDRs of equal amount for a period of one month to 60 months with cumulative interest without the facility of advance, loan and premature withdrawal without the prior permission of the Tribunal.
It shall be subject to the following further directions:
(a) The bank shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the victim i.e. the saving bank account(s) of the claimant(s) shall be individual savings 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 maturity amount of the FDR(s) shall be credited to the saving bank account of the claimant(s) in a nationalised bank near the place of his residence i.e. above said a/c.
(e) No loan, advance or withdrawal or premature discharge be allowed on the fixed deposits without permission of the court.
129/09 Rani Devi vs Ganga Singh Page 18 of 21 129/09 Rani Devi vs Ganga Singh Page 19 of 21(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.
20. Relief As discussed above, R3/Insurance co is directed to deposit the award amount of Rs. 19,00,000/ with interest @ 9% per annum from the date of filing of petition i.e. 23.01.2009 till realization within the jurisdiction of this Tribunal i.e. SBI , Rohini Court Branch, Delhi within 30 days from today under intimation of deposition of the awarded amount to be given by R3 to the petitioners and their advocates failing which the R3 shall be liable to pay interest @ 12% per annum from the period of delay beyond 30 days. R3 is also directed to place on record the proof of the award amount, proof of delivery of notice in respect of deposit of the amount in the above said bank to the claimants and complete details in respect of calculations of interest etc in the court within 30 days from today. A copy of this judgment/award be sent to respondent no. 3 for compliance within the granted time.
Nazir is directed to place a report on record in the event of non receipt/deposit of the compensation amount within the granted time.
A copy of this award be forwarded to the concerned Metropolitan Magistrate and DLSA in terms of the orders passed by the Hon'ble High Court in FAO 842/2003 Rajesh Tyagi Vs. Jaibir Singh & Ors. vide order dated 12.12.2014.
129/09 Rani Devi vs Ganga Singh Page 19 of 21 129/09 Rani Devi vs Ganga Singh Page 20 of 21In view of the directions contained in order dated 18.01.2018 of Hon'ble Mr. Justice J.R. Midha in FAO no. 842/2003 titled as Rajesh Tyagi vs Jaibir Singh, the statement of ld counsel for all petitioners was also recorded wherein he had stated that the petitioners were entitled to exemption from deduction of TDS and that they would submit form 15G to the insurance co. so that no TDS is deducted.
21. Form IVA which has been duly filled in has also been attached herewith. File be consigned to record room as per rules after compliance of necessary legal formalities. Copy of order be given to parties for necessary compliance as per rules.
Announced in open court (AMIT BANSAL)
on 09th March 2018 PO MACT N/W
Rohini Courts, Delhi.
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FORM - IV A
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN DEATH CASES TO BE INCORPORATED IN THE AWARD
1. Date of accident : 08.10.2008
2. Name of deceased: Shyam Chander singh
3. Age of the deceased: 48 years 9 months
4. Occupation of the deceased: Self employed/private job
5. Income of the deceased: 17,443/ per month
6. Name, age and relationship of legal representatives of deceased:
S.No. Name Age Relation
(i) Smt. Rani Devi 40 years wife
(ii) Sh. Vivek Kumar Singh 29 years Son
(iii) Sh. Kumar Abhishek 27 years Son
(iv) Sh. Ritesh Kumar 15 years son
Computation of Compensation
S.No. Heads Awarded by the Claims
Tribunal
7. Income of the deceased (A) Rs. 13,955/ .
8. AddFuture Prospects (B) 25%= Rs. 3488/
9. LessPersonal expenses of the 1/4th
deceased (C )
10. Monthly loss of dependency 13,082/
{ (A+B) - C =D}
11. Annual loss of dependency (Dx12) 1,56,984/
12. Multiplier (E) 13
13. Total loss of dependency (Dx12xE 20,40,792/ = F)
14. Medical Expenses (G)
15. Compensation for loss of love and Nil affection (H)
16. Compensation for loss of Rs. 40,000/ 129/09 Rani Devi vs Ganga Singh Page 21 of 21 129/09 Rani Devi vs Ganga Singh Page 22 of 21 consortium (I)
17. Compensation for loss of estate (J) Rs. 15,000/
18. Compensation towards funeral Rs. 15,000/ expenses (K)
19. TOTAL COMPENSATION Rs. 19,00,000/ (F+G+H+I+J+K =L) (Less 10% of Rs.
21,10,850/)
20. RATE OF INTEREST AWARDED 9% 21 Interest amount up to the date of Rs.15,39,000/ award (M)
22. Total amount including interest Rs. 34,39,000/ (L+M)
23. Award amount released Rs. 3,00,000/ to the petitioners.
24. Award amount kept in FDRs Rs. 31,39,000/
25. Mode of disbursement of the award As per award and in terms amount to the claimant (s) (Clause of clause 29 of MCTAP.
29)
26. Next date for compliance of the 28.04.2018.
award. (Clause 31) (AMIT BANSAL) PO MACT N/W Rohini Courts, Delhi.
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