Delhi District Court
Macp No.326/2019: Vijay Kumar (L.R(S) ... vs Ranvir Singh & Ors. on 16 December, 2022
MACP No.326/2019: Vijay Kumar (L.R(s) of Ms.Shweta Khatri) V/s Ranvir Singh & Ors.
MACP No.327/2019: Vijay Kumar & Anr. (L.Rs of Smt.Sudesh) V/s Ranvir Singh & Ors.
(Both in FIR No.434/2018: PS Kundli, District Sonepat, Haryana)
IN THE COURT OF VINOD YADAV: PRESIDING OFFICER:
MOTOR ACCIDENT CLAIMS TRIBUNAL: ROHINI COURTS: DELHI
MAC Petition No.326/2019 MAC Petition No.327/2019
Shri Vijay Kumar, 1. Shri Vijay Kumar,
S/o Shri Ram Mehar, S/o Shri Ram Mehar,
R/o House No.13, Village Shahpur Garhi, (Husband of deceased Smt.Sudesh)
Narela, Delhi-110040.
(Father of deceased Ms.Shweta Khatri) 2. Shri Rahul Khatri,
.....Petitioner S/o Shri Vijay Kumar,
(Son of deceased Smt.Sudesh)
Versus
Both R/o House No.13,
1. Shri Ranvir Singh, (Driver) Village Shahpur Garhi,
S/o Shri Zile Singh, Narela, Delhi-110040.
R/o Village & PO: Bhakheta, PS Sampla, .....Petitioners
District Rohtak, Haryana.
Versus
2. Major Brijendra Kumar (Regd. Owner)
S/o Shri Balraj Kishan, 1. Shri Ranvir Singh, (Driver)
R/o House No.1506, Sector-9, Faridabad, S/o Shri Zile Singh,
Haryana. R/o Village & PO: Bhakheta, PS Sampla,
Second Address: District Rohtak, Haryana.
House No.93/4, Vayu Sena Nagar,
Nagpur, Maharashtra-440007. 2. Major Brijendra Kumar (Regd. Owner)
S/o Shri Balraj Kishan,
3. HDFC Ergo General Insurance Company R/o House No.1506, Sector-9, Faridabad,
Limited, Haryana.
5th Floor, Stellar IT Park, C-25, Sector-62, Second Address:
Noida, Uttar Pradesh-201301. House No.93/4, Vayu Sena Nagar,
(Insurer) Nagpur, Maharashtra-440007.
(Insurance Company of offending vehicle/ 3. HDFC Ergo General Insurance Company
Wagon-R Car bearing Regn.No. Limited,
HR-51P-0474 vide Policy No. 5th Floor, Stellar IT Park, C-25, Sector-62,
2311 1003 1590 4900 000 Noida, Uttar Pradesh-201301.
valid from 31.05.2018 to 30.05.2019) (Insurer)
.....Respondents (Insurance Company of offending vehicle/
Wagon-R Car bearing Regn.No.
HR-51P-0474 vide Policy No.
2311 1003 1590 4900 000
valid from 31.05.2018 to 30.05.2019)
.....Respondents
Date of Decision: 16.12.2022 || Page 1 of 44
MACP No.326/2019: Vijay Kumar (L.R(s) of Ms.Shweta Khatri) V/s Ranvir Singh & Ors.
MACP No.327/2019: Vijay Kumar & Anr. (L.Rs of Smt.Sudesh) V/s Ranvir Singh & Ors.
(Both in FIR No.434/2018: PS Kundli, District Sonepat, Haryana)
PARTICULARS
1. UID/CNR Number (i) DLNT01-005183-2019
(MACP No.326/2019)
(ii) DLNT01-005185-2019
(MACP No.327/2019)
2. Under Section Petitions U/s 166 & 140 of Motor Vehicles
Act, 1988
3. Date of institution of petition(s) 03.06.2019
4. Date of Arguments 29.11.2022
5. Date of Decision/ Final Order 16.12.2022
6. Final Order Allowed
APPEARANCES:
Shri R.K Jain, Ld. Counsel for the L.Rs of deceased/petitioners.
None for R-1/Driver and R-2/Registered Owner.
Ms.Mamta Meghwal, Ld. Counsel for R-3/HDFC Ergo General Insurance
Company Limited.
Petition(s) under Section 166 & 140 of Motor Vehicle Act, 1988 for grant of compensation
16.12.2022
AWARD:
BACKGROUND PREFACE/INTRODUCTION
1. Road accidents are an unfortunate reality of our lives and a significant cause of concern in society. It destroys families and take precious lives. Losing a loved one in a road crash is a shattering and devastating experience and it is like rug having swept away from under you as we are never prepared for the changes that will come to our lives from this tragic accident. The tragedy never goes away, but one just learn how to cope with it and keep moving on. The world came crashing Date of Decision: 16.12.2022 || Page 2 of 44 MACP No.326/2019: Vijay Kumar (L.R(s) of Ms.Shweta Khatri) V/s Ranvir Singh & Ors. MACP No.327/2019: Vijay Kumar & Anr. (L.Rs of Smt.Sudesh) V/s Ranvir Singh & Ors.
(Both in FIR No.434/2018: PS Kundli, District Sonepat, Haryana) down for the petitioners on the unfortunate morning of 13.09.2018, when the fate snatched a loving wife from the husband, a charming daughter from the father, a caring mother from the son and a friend-like sister from the brother.
2. By way of this common order, I shall dispose off two claim petitions, both filed U/s 160 & 140 of Motor Vehicles Act, 1988, inter alia seeking compensation in respect of the fatal injuries sustained by Ms.Shweta Khatri, D/o Shri Vijay Kumar (being MACP No.326/2019) and Smt.Sudesh, W/o Shri Vijay Kumar (being MACP No.327/2019) in motor vehicular accident which took place in the morning of 13.09.2018, at about 11.45 AM on G.T.K Road, Kundli, District Sonepat, Haryana.
3. (i) The facts of the case in brief, as borne out from the record are that in the morning of 13.09.2018, Smt.Sudesh, W/o Shri Vijay Kumar alongwith her daughter namely Ms.Shweta Khatri were coming to their residence/house, situated at village Shahpur Garhi, Narela, Delhi from TDI Kundli via GTK Road on scooty bearing registration No.DL-8SCB-0932, which at the relevant time was being driven by Smt.Sudesh while her daughter Ms.Shweta Khatri being the pillion rider. At about 11.45 AM, when they reached on G.T road, near TDI, Kundli, suddenly a Wagon-R car bearing registration No.HR-51P-0474 (offending vehicle), being driven by its driver at a very high speed, in a rash and negligent manner, violating the traffic rules and without blowing any horn hit the aforesaid scooty from behind with great force, as a result of which both the scooty riders fell down on the road and sustained injuries all over their bodies. The scooty was also badly damaged in the accident. In the meantime, driver of offending vehicle fled away from the spot, leaving the offending vehicle behind. A huge crowd gathered at the spot and Date of Decision: 16.12.2022 || Page 3 of 44 MACP No.326/2019: Vijay Kumar (L.R(s) of Ms.Shweta Khatri) V/s Ranvir Singh & Ors. MACP No.327/2019: Vijay Kumar & Anr. (L.Rs of Smt.Sudesh) V/s Ranvir Singh & Ors.
(Both in FIR No.434/2018: PS Kundli, District Sonepat, Haryana) somebody from the public informed the police. Both the injured persons were rushed/removed to Satyawadi Raja Harish Chandra Hospital, Narela, Delhi (in short "SRHC Hospital"), where they were medically examined. Vide MLC No.5103 (Emergency Registration No.108774), injured Ms.Shweta Khatri was declared "brought dead". Her mother Smt.Sudesh was examined vide MLC No.5104 (Emergency Registration No.108775), however, opinion qua the nature of injuries suffered by her was kept reserved.
(ii) In the meantime, on coming to know of the accident, the family members/petitioners went to SRHC Hospital. Owing to the seriousness of injuries suffered by Smt.Sudesh and in order to avail better medical treatment, her husband/petitioner Shri Vijay Kumar shifted her to Santom Hospital, Prashant Vihar from where she was further shifted to Fortis Hospital, Shalimar Bagh on the same day. However, as the fate would have it, in spite of all his strenuous and untiring efforts, petitioner Shri Vijay Kumar could not save the life of his injured wife/Smt.Sudesh and she ultimately breathed her last at Fortis Hospital on 15.09.2018. Thereafter, on 15.09.2018 itself, postmortem upon the dead body of deceased Smt.Sudesh was conducted at Babu Jagjivan Ram Memorial Hospital, Jahangirpuri, Delhi (in short "BJRM Hospital") vide PM Report No.713/18, whereby the death was opined to be caused due to "hemorrhagic shock consequent to injury to abdomen, being caused by blunt force/surface impact".
4. (i) Now, coming back. Case FIR No.434/2018, dated 13.09.2018, U/s 279/337/304-A IPC was registered at PS Kundli, District Sonepat, Haryana with regard to the said accident. During the course of investigation, it came to fore that offending vehicle was being driven by respondent No.1/Ranvir Singh at the relevant time, while respondent No.2/Major Brijendra Kumar (now stated to be Colonel) was Date of Decision: 16.12.2022 || Page 4 of 44 MACP No.326/2019: Vijay Kumar (L.R(s) of Ms.Shweta Khatri) V/s Ranvir Singh & Ors. MACP No.327/2019: Vijay Kumar & Anr. (L.Rs of Smt.Sudesh) V/s Ranvir Singh & Ors.
(Both in FIR No.434/2018: PS Kundli, District Sonepat, Haryana) found to be the registered owner thereof. Furthermore, as on the date and time of accident, the offending vehicle was found to be lying insured with respondent No.3/ HDFC Ergo General Insurance Company Limited (hereinafter referred to as "insurance company") vide Policy No. 2311 1003 1590 4900 000, valid from 31.05.2018 to 30.05.2019.
(ii) It is further noteworthy that since both the claim petitions under consideration arose out of the same motor vehicular accident and considering the fact that eye witness in the said cases is same vis-à-vis common witnesses were to be examined, accordingly MACP No.327/2019, titled as, "Vijay Kumar & Anr. (L.Rs of Smt.Sudesh) V/s Ranvir Singh & Ors." is treated as the "leading case".
5. (i) Now, let us have a bird's eye view of the claim set up in both the claim petitions.
(ii) In MACP No.326/2019 (claim petition in respect of fatal injuries suffered by Ms.Shweta Khatri): It has been the case of petitioner Vijay Kumar that accident in question had occurred solely due to rash and negligent driving of offending vehicle by respondent No.1/driver. At the time of accident, his deceased daughter, i.e Ms.Shweta Khatri was aged about 22 years, possessing a sound health and good physique and had just completed General Nursing & Midwifery Course (in short "GNM Course") from Mata Sahib Kaur College of Nursing, Mohali, Chandigarh. She had further successfully completed two months' Basic Computer & English Speaking Course from Institute of Advanced Careers and also excelled in sporting activities, especially kabbadi and volleyball. It is emphasized that considering her said qualification, she would have easily fetched a job of around Rs.30,000/- to Rs.40,000/- per month, which in turn would have definitely increased with the passage of time. It has further been the case of petitioner that he had spent Date of Decision: 16.12.2022 || Page 5 of 44 MACP No.326/2019: Vijay Kumar (L.R(s) of Ms.Shweta Khatri) V/s Ranvir Singh & Ors. MACP No.327/2019: Vijay Kumar & Anr. (L.Rs of Smt.Sudesh) V/s Ranvir Singh & Ors.
(Both in FIR No.434/2018: PS Kundli, District Sonepat, Haryana) more than Rs.9,00,000/- on his daughter's fees, boarding, lodging, transportation and other miscellaneous expenses for pursuing GNM Course from Mohali, Chandigarh. In view of the above, grant of compensation @ Rs.60,00,000/- (Rupees Sixty Lakhs Only) alongwith requisite interest quotient has been prayed for.
(iii) In MACP No.327/2019 (claim petition in respect of fatal injuries suffered by Smt.Sudesh): It has been the case of petitioners that at the time of accident, deceased Smt.Sudesh (wife of petitioner No.1/Vijay Kumar and mother of petitioner No.2/Rahul Khatri) was aged about 42 years, possessing a sound health and good physique and besides working as a housewife/homemaker, she was also helping her husband in Kiryana Shop, being run from her residence at Village Shahpur Garhi, Narela, Delhi. The deceased was skilled in her work and her services were of great value to the petitioners. It has been emphasized that deceased Smt.Sudesh being a homemaker used to cook food, buy clothes, wash and iron them for her family members and used to do every other household chores which a housewife does in routine and as such, the notional income for the services rendered by her has been assessed as Rs.17,000/- per month. It has further been averred that petitioner No.1/Vijay Kumar had incurred an expenditure of more than Rs.5,00,000/- on the medical treatment, conveyance, transportation of dead body and funeral expenses/last rites of her deceased wife Smt.Sudesh. As such, grant of compensation @ Rs.50,00,000/- (Rupees Fifty Lakhs Only) alongwith requisite interest quotient has been prayed for.
6. Respondents No.1 & 2, i.e driver and registered owner by way of their common written statement filed in the matter did not dispute either the accident or the fatal injuries suffered by both the deceased persons. But, both of them, especially respondent No.1/driver did not accept the blame for any of these.
Date of Decision: 16.12.2022 || Page 6 of 44MACP No.326/2019: Vijay Kumar (L.R(s) of Ms.Shweta Khatri) V/s Ranvir Singh & Ors. MACP No.327/2019: Vijay Kumar & Anr. (L.Rs of Smt.Sudesh) V/s Ranvir Singh & Ors.
(Both in FIR No.434/2018: PS Kundli, District Sonepat, Haryana) For him, the scooty driver, i.e Smt.Sudesh's negligence was solely responsible for the accident in question as the scooty driven by her suddenly came in front of offending vehicle. It has further been averred that both the respondents have been falsely implicated in the matter in collusion with the local police with a view of extort money from them. It has further been categorically stated that respondent No.1 was having a valid Driving Licence to drive the alleged offending vehicle and the same was lying insured with respondent No.3 and as such, respondent No.3/insurance company is liable to pay compensation/claim, if any, to the petitioners. Both the respondents aforesaid vehemently denied the averments made in the claim petition(s) and prayed for their dismissal.
7. (i) Respondent No.3/Insurance Company by way of its reply/written statement denied its liability in the matter inter alia taking preliminary objection(s) to the effect that investigation and verification of requisite documents in the matter had not been carried out properly. It is emphasized that offending vehicle has been "planted" in the matter for extorting money from the insurance company; respondent No.1/driver was not carrying a valid and effective driving licence to drive offending vehicle on the date of accident; the scooty was being driven on the wrong side of the road and moreover both the scooty riders were not wearing any helmet at the time accident all of which contribute to patent breach of the terms and conditions of motor vehicle insurance policy and as such, the insurance company is not liable to pay any claim/compensation to the petitioners.
(ii) However, it has been admitted that the offending vehicle, i.e Wagon-R car bearing registration No.HR-51P-0474 was duly lying insured with it vide Policy No. 2311 1003 1590 4900 000, valid from 31.05.2018 to 30.05.2019.
Date of Decision: 16.12.2022 || Page 7 of 44MACP No.326/2019: Vijay Kumar (L.R(s) of Ms.Shweta Khatri) V/s Ranvir Singh & Ors. MACP No.327/2019: Vijay Kumar & Anr. (L.Rs of Smt.Sudesh) V/s Ranvir Singh & Ors.
(Both in FIR No.434/2018: PS Kundli, District Sonepat, Haryana)
8. Before proceeding further, it is pertinent to mention here that during the interregnum, petitioners prayed for passing/grant of Interim Award under Section 140 M.V Act. It is noted that vide order(s) dated 10.12.2019 (passed separately in both the claim petitions), interim Award @ Rs.50,000/- each alongwith interest @ 9% per annum from the date of filing of petition till the date of its realization was passed in both the claim petitions in favour of petitioners. As per the report of Nazir, cheque(s) of the aforesaid Interim Award amount alongwith requisite interest quotient were duly deposited by respondent No.3/insurance company, which vide order(s) dated 29.07.2022 (passed separately in both the claim petitions) were ordered to be released to the L.Rs of deceased/petitioner(s).
9. (i) Now, I am required to enquire into the following aspects. First: "What happened, and how did it happen". Second: "How to compensate the L.Rs of deceased/petitioners".
(ii) For deciding the aforesaid three aspects, it would be appropriate to have a glimpse of the issues framed in the matter. From the pleadings of the parties, following issues were framed in both the aforesaid matters vide order dated 10.12.2019:
Issues framed in MACP No.326/2019 Issues framed in MACP No.327/2019
1. Whether the deceased Ms.Shweta 1. Whether the deceased Smt.Sudesh Khatri suffered fatal injuries in road suffered fatal injuries in road traffic traffic accident on 13.09.2018, at about accident on 13.09.2018, at about 11.45 AM
11.45 AM on GTK Road, Kundli, near on GTK Road, Kundli, near TDI, Sonepat, TDI, Sonepat, Haryana, within the Haryana, within the jurisdiction of PS jurisdiction of PS Kundli, District Kundli, District Sonepat, Haryana, due to Sonepat, Haryana, due to rash and rash and negligent driving of vehicle negligent driving of vehicle bearing bearing registration No.HR-51P-0474, Date of Decision: 16.12.2022 || Page 8 of 44 MACP No.326/2019: Vijay Kumar (L.R(s) of Ms.Shweta Khatri) V/s Ranvir Singh & Ors. MACP No.327/2019: Vijay Kumar & Anr. (L.Rs of Smt.Sudesh) V/s Ranvir Singh & Ors.
(Both in FIR No.434/2018: PS Kundli, District Sonepat, Haryana) registration No.HR-51P-0474, being being driven by respondent No.1 Shri driven by respondent No.1 Shri Ranvir Ranvir Singh, owned by respondent No.2 Singh, owned by respondent No.2 Major Major Brijendra Kumar and insured with Brijendra Kumar and insured with HDFC Ergo General Insurance Company HDFC Ergo General Insurance Company Limited/respondent No.3? OPP. Limited/respondent No.3? OPP. 2. Whether the L.Rs of deceased are
2. Whether the L.Rs of deceased are entitled to any compensation, if so, to what entitled to any compensation, if so, to amount and from whom? OPP. what amount and from whom? OPP. 3. Relief.
3. Relief.
EVIDENCE ADDUCED Petitioners' Evidence:
10. (i) Shri Vijay Kumar, father of deceased Ms.Shweta Khatri and husband of deceased Smt.Sudesh examined himself as PW-1 in both the claim petitions. In his evidence by way of affidavit(s) (Ex.PW1/A separately in both the claim petitions), this witness has reiterated the averments made by him in the respective claim petitions. Further, he has proved on record the following documents:
Documents proved on record by PW- Documents proved on record by PW- 1/Vijay Kumar in MACP No.326/2019 1/Vijay Kumar in (claim petition in (claim petition in respect of fatal respect of fatal injuries suffered by injuries suffered by Ms.Shweta Smt.Sudesh) Khatri)
(a) Photocopies of Matriculation (a) Original medical bills and receipts Certificate and Aadhar Card of his thereof, issued by Santom Hospital, deceased daughter as Ex.PW1/1 (Colly) Prashant Vihar and Fortis Hospital, Date of Decision: 16.12.2022 || Page 9 of 44 MACP No.326/2019: Vijay Kumar (L.R(s) of Ms.Shweta Khatri) V/s Ranvir Singh & Ors.
MACP No.327/2019: Vijay Kumar & Anr. (L.Rs of Smt.Sudesh) V/s Ranvir Singh & Ors.
(Both in FIR No.434/2018: PS Kundli, District Sonepat, Haryana) (02 sheets); Shalimar Bagh qua the medical treatment
(b) Photocopy of combine marksheet of of deceased Smt.Sudesh and chart/list of "General Midwifery & Nursing medical bills (total amounting to Course" from Mata Sahib Kaur College Rs.3,55,898/-) as Ex.PW1/1 (Colly) (32 of Nursing, Mohali, Chandigarh as sheets) and Ex.PW1/2 respectively; Ex.PW1/2 (Colly) (OSR); (b) Copy of his Aadhar Card as
(c) Few original receipts of payment Ex.PW1/3 (OSR);
made by PW-1 to Mata Sahib Kaur (c) Copy of Aadhar Card of his son College of Nursing, Mohali Chandigarh Rahul Khatri as Ex.PW1/4 (OSR); as Ex.PW1/3 (Colly). Connected with (d) Copy of Identity Card of his son aforesaid, the chart/table depicting the Rahul Khatri, issued by Padmshree Ajit amount paid towards fee to Mata Sahib Wadekar Sharirik Shikshan Kaur College by PW-1 (total amounting Mahavidyalaya, Nagpur, Maharashtra as to Rs.3,21,500/-) as Mark A (Colly) (02 Ex.PW1/5 (OSR);
pages). (e) Copies of Aadhar Card and PAN Card
(d) Photocopies of Certificate of Merit of deceased Smt.Sudesh as Ex.PW1/6 and Computer Course done by (Colly) (OSR);
Ms.Shweta Khatri as Ex.PW1/4 (Colly) (f) Certified copy of criminal case record, (04 sheets) (OSR). i.e judicial record in respect of FIR No.434/2018, PS Kundli, Sonepat as Ex.PW1/7 (Colly).
(ii) In his cross-examination by insurance company, this witness categorically stated that his deceased daughter had just completed her General Midwifery & Nursing Course, however, she had not started earning. He reiterated that he was having a valid insurance policy qua his scooty at the time of accident.
Date of Decision: 16.12.2022 || Page 10 of 44MACP No.326/2019: Vijay Kumar (L.R(s) of Ms.Shweta Khatri) V/s Ranvir Singh & Ors. MACP No.327/2019: Vijay Kumar & Anr. (L.Rs of Smt.Sudesh) V/s Ranvir Singh & Ors.
(Both in FIR No.434/2018: PS Kundli, District Sonepat, Haryana) He further stated that he had not claimed any amount from the R-3/insurance company, as the scooty was lying registered in the name of his son Rahul Khatri.
(iii) He further categorically stated that his deceased wife was having a valid driving licence, which was lying in her purse, however, the same got misplaced during the accident. He further stated that he used to procure goods for his kiryana shop and his deceased wife used to sell the same.
11. The second witness examined by the petitioners in both the claim petitions is Shri Krishan Kumar, who is stated to be eye witness of the accident in question. He has been examined as PW-2 in both the claim petitions. He has proved on record copy of his Aadhar Card in respect of his identity as Ex.PW2/1 (OSR). I will deliberate upon the evidence of this witness while returning findings on Issue No.(i) in both the claim petitions.
12. Thereafter, PE in both the claim petitions was closed vide order(s) dated 30.08.2022.
Respondents' Evidence:
13. On the other hand, despite being accorded enough opportunities, none of the respondents led any evidence in both the claim petitions. As such, vide order(s) dated 26.09.2022, RE in both the claim petitions was closed. However, on 26.09.2022 itself, statement of Shri Kuldeep Verma, Advocate, learned counsel for respondents No.1 & 2 was recorded in the matter, whereby he furnished on record the copies of Driving Licence of respondent No.1, Registration Certificate and Insurance Policy qua the offending vehicle which were exhibited as Ex.R-1 (Colly).
Date of Decision: 16.12.2022 || Page 11 of 44MACP No.326/2019: Vijay Kumar (L.R(s) of Ms.Shweta Khatri) V/s Ranvir Singh & Ors. MACP No.327/2019: Vijay Kumar & Anr. (L.Rs of Smt.Sudesh) V/s Ranvir Singh & Ors.
(Both in FIR No.434/2018: PS Kundli, District Sonepat, Haryana) 14 I have heard arguments advanced at Bar by learned counsel for the L.Rs of deceased/petitioners as well as learned counsel for respondent No.3/insurance company and carefully perused the entire material on record. None appeared on behalf of respondents No.1 and 2 to advance arguments in the matter. My findings on the issues are as under.
Issue No.(1) in both the claim petitions
15. (i) The onus to prove Issue No.(1) in both the claim petitions aforesaid was upon the petitioners/claimants. Since, the finding on said issue(s) is going to be common, so they are being taken up simultaneously for consideration. For the purpose of said issue(s), the testimony of PW-2/Shri Krishan Kumar, who claimed himself to be eye witness of the accident in question is very relevant.
(ii) PW-2/Shri Krishan Kumar in his evidence by way of affidavit (Ex.PW2/A) stated that on 13.09.2018 he was going towards Nathupur, Haryana on foot and at about 11.45 AM when he reached on G.T Road, near TDI, Sonepat, he saw two ladies going on scooty bearing registration No.DL-8SCB-0932 towards Delhi from the side of TDI Kundli via GT Road. He further stated that at about 11.45 AM when the scooty of said ladies reached on G.T Road near TDI, then the offending vehicle, i.e Wagon-R car bearing registration No.HR-51-P/0474, which was being driven by its driver at a very high speed, in a rash and negligent manner, violating the traffic rules and without blowing any horn hit the said scooty from behind, as a result of which the scooty fell down and both the ladies suffered grievous injuries all over their bodies. He further stated that after causing the accident, the driver of offending vehicle fled from the spot, leaving the offending vehicle behind. The scooty was also badly damaged in the accident. He further stated that a crowd gathered at the spot and he requested someone from the public to Date of Decision: 16.12.2022 || Page 12 of 44 MACP No.326/2019: Vijay Kumar (L.R(s) of Ms.Shweta Khatri) V/s Ranvir Singh & Ors. MACP No.327/2019: Vijay Kumar & Anr. (L.Rs of Smt.Sudesh) V/s Ranvir Singh & Ors.
(Both in FIR No.434/2018: PS Kundli, District Sonepat, Haryana) inform the police and shift the injured ladies to hospital. He further stated that his statement was recorded by the police, offending vehicle seized by the police from the spot and the driver of offending vehicle was also arrested on the same day of accident. He categorically stated that accident in question had occurred due to rash and negligent driving of offending vehicle by its driver/respondent No.1.
(ii) In his cross-examination on behalf of R-3/insurance company, both the ladies were wearing helmets. He categorically stated that the offending vehicle was a silver colour Wagon-R car bearing registration No.HR-51P-0474. He stated that he had not called the police, as he was not carrying any mobile phone at that time.
(iii) None appeared for respondents No.1 and 2 to cross-examine this witness.
16. (i) The precise testimony of PW-2, the sole eye witness in the matter nails the culpability of respondent No.1/driver. Neither he, nor other respondents were able to poke any holes therein. This is more so, when respondents No.1 and 2 have not led any evidence to controvert the case of petitioner(s).
(ii) It is further an undisputed fact that case FIR No.434/2018, dated 13.09.2018, U/s 279/337/304-A IPC was registered at PS Kundli, District Sonepat, Haryana with regard to the said accident. The contents of said FIR (criminal case proved on record as Ex.PW1/7 Colly) would show that offending vehicle had hit the scooty driven by Smt.Sudesh on the date and time of accident. Not only this, respondent No.1/driver Ranveer Singh (accused in State case) has also been chargesheeted for offences punishable under Sections 279/337/304-A IPC. Same would also point out towards rash and negligent driving of the offending vehicle by respondent No.1/driver.
Date of Decision: 16.12.2022 || Page 13 of 44MACP No.326/2019: Vijay Kumar (L.R(s) of Ms.Shweta Khatri) V/s Ranvir Singh & Ors. MACP No.327/2019: Vijay Kumar & Anr. (L.Rs of Smt.Sudesh) V/s Ranvir Singh & Ors.
(Both in FIR No.434/2018: PS Kundli, District Sonepat, Haryana)
17. Further, there is no gainsaying that respondent No.1/driver of the offending vehicle was the other material witness to throw light by testifying as to how and under what circumstances, the accident had taken place. However, he has preferred not to enter the witness box. Thus, an adverse inference is liable to be drawn against him to the effect that accident had occurred due to his rash and negligent driving of the offending vehicle.
18. Apart from above, copy of MLCs of both the deceased ladies, prepared at SRHC Hospital is also available on record (being part of criminal case record), which shows that they had been removed to said hospital on 13.09.2018 at about 12.32 PM, with the alleged history of road traffic accident (RTA). Needless to say, the injuries mentioned in the said MLCs and medical treatment record are consistent with the injuries which are sustained in motor vehicular accident. Even the postmortem report of deceased Smt.Sudesh clearly points out the cause of her death to be "hemorrhagic shock consequent to injury to abdomen, being caused by blunt force/surface impact". Admittedly, the findings of said postmortem report has not been challenged by the respondents.
19. Furthermore, it is an established principle of law that in a claim petition under the Motor Vehicle Act, the standard of proof to establish rash and negligent driving by the driver of the offending vehicle is not at par with the criminal case where such rashness and negligence is required to be proved beyond all shadow of reasonable doubt. In case of "Kaushnamma Begum and others V/s New India Assurance Company Limited" reported as, (2001) 2 SCC 9, it was inter alia held by the Hon'ble Supreme Court that the issue of wrongful act or omission on the part of the driver of the motor vehicle involved in the accident has been left to a Date of Decision: 16.12.2022 || Page 14 of 44 MACP No.326/2019: Vijay Kumar (L.R(s) of Ms.Shweta Khatri) V/s Ranvir Singh & Ors. MACP No.327/2019: Vijay Kumar & Anr. (L.Rs of Smt.Sudesh) V/s Ranvir Singh & Ors.
(Both in FIR No.434/2018: PS Kundli, District Sonepat, Haryana) secondary importance and mere use or involvement of motor vehicle in causing bodily injury or death to a human being or damage to property would make the petition maintainable under Sections 166 and 140 of the Motor Vehicle Act.
20. (i) It may also be mentioned here that the standard of proof of negligence as required in a claim petition u/s 166 M.V Act is on the touchstone of preponderance of probability, as held by Hon'ble Supreme Court of India in case of "Bimla Devi V/s Himachal Road Transport Corporation [(2009) 13 SCC 530]".
(ii) The Hon'ble Gauhati High Court in case reported as, "[2012 (4) GLT 516]", titled as, "Godavari Devi Sharma and Ors/ V/s United India Insurance Company Ltd. and Ors." has been pleased to observe as under:
xxxxx (14) Moreover, while conducting the inquiry into a claim under Section 166 of the M. V. Act, the Tribunal is not expected to search for proof or evidence beyond reasonable doubt, rather it is preponderance of probability, what the tool is, for assessment of the evidence. The Tribunal can arrive at its finding on the prima facie materials, such as the First Information Report to presume existence of the certain facts, in absence of other evidence which might debase such presumption."
xxxxx
21. As discussed in preceding paragraph(s), respondents have not been able to make any dent in the testimony of eye witness PW-2/Shri Krishan Kumar, who in categorical terms has narrated as to how the accident had taken place solely on account of the rash and negligent driving of offending vehicle by respondent No.1. Therefore, the case does not warrant any other best evidence. In view of the aforesaid discussion and the evidence which has come on record, it is held that the rashness and negligence on the part of respondent No.1/driver is clearly visible and Date of Decision: 16.12.2022 || Page 15 of 44 MACP No.326/2019: Vijay Kumar (L.R(s) of Ms.Shweta Khatri) V/s Ranvir Singh & Ors. MACP No.327/2019: Vijay Kumar & Anr. (L.Rs of Smt.Sudesh) V/s Ranvir Singh & Ors.
(Both in FIR No.434/2018: PS Kundli, District Sonepat, Haryana) as such, he was responsible not only for this accident, but also for everything that followed thereafter. Accordingly, this issue is answered in favour of petitioners/claimants and against the respondents.
COMPENSATION: ASSESSMENT & DISTRIBUTION ISSUE No.(2) in MACP No.326/2019 (claim petition in respect of fatal injuries suffered by Ms.Shweta Khatri)
22. This issue is the most ticklish, yet the most important one. The reasons are obvious. The human loss suffered by petitioner(s) cannot be measured/ compensated in monetary terms, yet this Tribunal has to award just and reasonable compensation. In this regard, I am guided by Section 168 of the Act which enjoins the Claims Tribunal to hold an inquiry to the claim to make an Award determining the amount of compensation which appears to it to be just and reasonable. It has to be borne in mind that the compensation is not expected to be a windfall or a bonanza nor it should be niggardly.
23. In celebrated case of "Sarla Verma and Others Vs. Delhi Transport Corporation and Another", (2009) 6 Supreme Court Cases 121, which has been reiterated by the Constitution Bench of Hon'ble Supreme Court in case titled as "National Insurance Company Vs. Pranay Sethi & Ors." Decided on 31.10.2017 (2017) 16 SCC 680, the Hon'ble Supreme Court of India has laid down general principles for computation of compensation in death cases. The relevant paras of the judgment are reproduced here as under:
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9. Basically only three facts need to be established by the claimants for assessing compensation in the case of death: (a) Date of Decision: 16.12.2022 || Page 16 of 44 MACP No.326/2019: Vijay Kumar (L.R(s) of Ms.Shweta Khatri) V/s Ranvir Singh & Ors.
MACP No.327/2019: Vijay Kumar & Anr. (L.Rs of Smt.Sudesh) V/s Ranvir Singh & Ors.
(Both in FIR No.434/2018: PS Kundli, District Sonepat, Haryana) age of the deceased; (b) income of the deceased; and (c) the number of dependents. These issues to be determined by the Tribunal to arrive at the loss of dependency are: (i) additions/deductions to be made for arriving at the income;
(ii) the deduction to be made towards the personal living expenses of the deceased; and (iii) the multiplier to be applied with reference to the age of the deceased. If these determinations are standardized, there will be uniformity and consistency in the decisions. There will be lesser need for detailed evidence. It will also be easier for the insurance companies to settle accident claims without delay. To have uniformity and consistency, the Tribunals should determine compensation in cases of death, by the following well-settled steps:
Step-1 (Ascertaining the multiplicand) The income of the deceased per annum should be determined. Out of the said income a deduction should be made in regard to the amount which the deceased would have spent on himself by way of personal and living expenses. The balance which is considered to be the contribution to the dependent family, constitutes the multiplicand.
Step-2 (Ascertaining the multiplier) Having regard to the age of the deceased and period of active career, the appropriate multiplier should be selected. This does not mean ascertaining the number of years he would have lived or worked but for the accident. Having regard to several mponderables in life and identified by this Court. The multiplier should be chosen from the said table with reference to the age of the deceased.
Step-3 (Actual Calculation) The annual contribution to the family(multiplicand) when multiplied by such multiplier gives the 'loss of dependency' to the family. Thereafter, a conventional amount in the range of Rs.5,000/- to Rs.10,000/- may be added as loss of estates. Where the deceased is survived by his widow, another conventional amount in the range of Rs.5,000 to Rs.10,000 should be added under the head of loss of consortium. But no amount is to be awarded under the head of pain, suffering or hardship caused to the legal heirs of the deceased. The Date of Decision: 16.12.2022 || Page 17 of 44 MACP No.326/2019: Vijay Kumar (L.R(s) of Ms.Shweta Khatri) V/s Ranvir Singh & Ors. MACP No.327/2019: Vijay Kumar & Anr. (L.Rs of Smt.Sudesh) V/s Ranvir Singh & Ors.
(Both in FIR No.434/2018: PS Kundli, District Sonepat, Haryana) funeral expenses, cost of transportation of the body (if incurred) and the cost of any medical treatment of the deceased before death (if incurred) should also be added."
xxxxx LOSS OF FINANCIAL DEPENDENCY
24. (i) For ascertaining the loss of financial dependency, the evidence of PW- 1/Shri Vijay Kumar (father of deceased Ms.Shweta Khatri) is very relevant. This witness in his evidence by way of affidavit (Ex.PW1/A) categorically stated that his deceased daughter, i.e Ms.Shweta Khatri was aged about 22 years, possessing a sound health and good physique and had just completed General Nursing & Midwifery Course (in short "GNM Course") from Mata Sahib Kaur College of Nursing, Mohali, Chandigarh. She had further successfully completed two months' Basic Computer & English Speaking Course from Institute of Advanced Careers and also excelled in sporting activities, especially kabbadi and volleyball. He/PW-1 further stated that considering the qualification of her deceased daughter, she would have easily fetched a job of around Rs.30,000/- to Rs.40,000/- per month, which in turn would have definitely increased with the passage of time.
QUANTUM
25. (i) I, must first opine upon the age of deceased Ms.Shweta Khatri at the time of accident. In this regard, it is noted that PW-1 (father of deceased) has proved on record the copies of Matriculation Certificate and Aadhar Card of his deceased daughter as Ex.PW1/1 (Colly) (OSR), wherein her Date of Birth (DOB) is being reflected as 16.02.1997. The authenticity or otherwise of the said documents has nowhere been disputed on behalf of respondent(s). The date of accident in the matter is 13.09.2018. As such, deceased Ms.Shweta Khatri was aged 21 years 06 months and 10 days as on the date of accident.
Date of Decision: 16.12.2022 || Page 18 of 44MACP No.326/2019: Vijay Kumar (L.R(s) of Ms.Shweta Khatri) V/s Ranvir Singh & Ors. MACP No.327/2019: Vijay Kumar & Anr. (L.Rs of Smt.Sudesh) V/s Ranvir Singh & Ors.
(Both in FIR No.434/2018: PS Kundli, District Sonepat, Haryana)
(ii) Though, PW-1 has stated in his evidence that considering the educational qualification of her deceased daughters, she would have easily earned about Rs.30,000/- to Rs.40,000/- per month, however, he has also admitted in his cross-examination on behalf of insurance company that deceased was not earning anything on the date of accident. Accordingly, the learned counsel for R-3/insurance company has prayed for taking the minimum wages applicable in the State of Delhi for a graduate. Per contra, learned counsel for the petitioners has very emphatically argued that instead of taking minimum wages, this Tribunal should take into consideration the earning capacity of a student having completed a professional course like GNM. In this regard, the learned counsel has placed strong reliance upon the observations made by Hon'ble High Court of Delhi in following two cases:
(a) MAC.APP No.136/2017, titled as, "New India Assurance Co. Ltd.
V/s Dilip Kumar & Ors." (Date of Decision: 25.05.2018) and;
(b) MAC.APP No.376/2017, titled as, "Bharti AXA General Insurance Company Limited V/s Upender Kumar Shastri & Ors." (Date of Decision: 07.03.2018).
(iii) In case of New India Assurance Co.Ltd. V/s Dilip Kumar (supra), one Prateek, who had passed Class 12th with 82% marks and was pursuing B.Sc.
(Nautical Sciences) six semsester course had met with a road traffic accident on 01.03.2012 and suffered 100% disability relating to post-traumatic paraplegia with B/B in involvement and loss of vision (left). Prateek was aged about 22 years at the time of accident. He ultimately succumbed to his injuries on 04.07.2014. The Hon'ble High after considering his professional qualification refused to take the Date of Decision: 16.12.2022 || Page 19 of 44 MACP No.326/2019: Vijay Kumar (L.R(s) of Ms.Shweta Khatri) V/s Ranvir Singh & Ors. MACP No.327/2019: Vijay Kumar & Anr. (L.Rs of Smt.Sudesh) V/s Ranvir Singh & Ors.
(Both in FIR No.434/2018: PS Kundli, District Sonepat, Haryana) minimum wages and instead went on to take the earning capacity of Prateek as Rs.25,500/- per month. The observations of Hon'ble High Court in this regard are re-produced hereunder:
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16. The Claims Tribunal has taken the earning capacity of the deceased as Rs.40,000/- per month which is under challenge in this appeal. The law with respect to the earning capacity of a student pursuing a professional course is well-settled that the Claims Tribunal has to assess the earning capacity of the deceased considering the nature of the professional course being pursued by the deceased and the prospects of his income after completing the course. The relevant judgments on this principle are as under:
16.1 In Oriental Insurance Company Ltd. v. Deo Patodi, (2009) 13 SCC 123, the accident dated 12th June, 2003 resulted in the death of a 22 year old brilliant student who had completed Business Administration Course and had an offer of job from a US based company at the time of the accident. The Claims Tribunal took his earning capacity as Rs.18,000/- per month. The Supreme Court enhanced the earning capacity of the deceased from Rs.18,000/- per month to Rs.25,000/- per month.
16.2 In New India Assurance Company Limited v. Ganga Devi, MANU/DE/3623/2009, the accident dated 12th August, 2003 resulted in the death of an MBBS graduate who was doing internship and was getting a stipend of Rs.5,000/- per month. The Claims Tribunal took minimum wages of Rs.3,543/- per month in respect of a graduate. This Court rejected the principle of minimum wages applied by the Claims Tribunal and took the earning capacity of the deceased as Rs.18,000/- per month and added 50% was towards future prospects. This Court enhanced the compensation from Rs.9,60,352/- to Rs.21,36,000/-.
16.3 In Ramesh Chand Joshi v. New India Assurance Company Limited MAC. APP. 212-13/2006 decided on 20th January, 2010, the accident dated 30th July, 2004 resulted in the death of a first year student of B. Tech in Delhi College of Engineering. The Claims Tribunal took the minimum wages of Date of Decision: 16.12.2022 || Page 20 of 44 MACP No.326/2019: Vijay Kumar (L.R(s) of Ms.Shweta Khatri) V/s Ranvir Singh & Ors. MACP No.327/2019: Vijay Kumar & Anr. (L.Rs of Smt.Sudesh) V/s Ranvir Singh & Ors.
(Both in FIR No.434/2018: PS Kundli, District Sonepat, Haryana) Rs.1,875/- per month which was challenged before this Court. This Court again rejected that principle of the minimum wages applied by the Claims Tribunal. Following the Supreme Court judgment in Deo Patodi, (supra), this Court assessed the earning capacity of the deceased after completing the graduation course to be Rs.38,333/- per month and the compensation was enhanced from Rs.3,25,000/- to Rs.22,78,980/-. The relevant portion of the judgment is as under:
"7. The learned Tribunal has taken the notional income of the deceased as Rs.22,500/- per annum i.e. Rs.1,875/- per month which is less than even the minimum wages of a daily wager. The approach and finding of the learned Tribunal is absurd and without any basis. The law in this regard is well settled by catena of judgments. The minimum wages are permissible to be taken where the deceased is illiterate and does not possess any professional or technical qualification. Where the deceased is educated or is pursuing the professional course, income has to be taken on the basis of his earning. Reference in this regard may be made to judgment of Oriental Insurance Company Ltd. v. Deo Pataudi, 2009 (8) Scale 194, in which case the deceased aged 22 years was a student having a brilliant career and offer of employment from a US Based Company at the time of accident. The learned Tribunal took his earning capacity to be Rs.18,000/- per month. The High Court in appeal upheld the earning capacity of the deceased at 18,000/- per month. The Hon'ble Supreme Court enhanced the earning capacity of the deceased from Rs.18,000/- to Rs.25,000/- per month.
8. Section 168 of the Motor Vehicles Act provides that the learned Tribunal shall conduct an inquiry into the claim petition. Section 169 of the Motor Vehicles Act provides that the learned Tribunal shall follow such summary procedure as it deem fit to conduct such an inquiry. The inquiry stipulated in Section 168 of the Motor Vehicles Act is different from the civil trial. The learned Tribunal has not conducted any inquiry whatsoever for assessing the earning capacity of the deceased. Be that as it may, this Court in appellate Date of Decision: 16.12.2022 || Page 21 of 44 MACP No.326/2019: Vijay Kumar (L.R(s) of Ms.Shweta Khatri) V/s Ranvir Singh & Ors. MACP No.327/2019: Vijay Kumar & Anr. (L.Rs of Smt.Sudesh) V/s Ranvir Singh & Ors.
(Both in FIR No.434/2018: PS Kundli, District Sonepat, Haryana) jurisdiction has the same power of conducting such an enquiry into this matter and, therefore, vide order dated 26th November, 2009, this Court issued a notice to the Dean of Delhi College of Engineering, Bawana to place on record the average salary of a fresh Engineering graduate of Delhi College of Engineering, in pursuance to which the Joint Registrar of Delhi College of Engineering (now known as Delhi Technological University) has filed an affidavit along with the chart of average salary drawn by a fresh engineering graduates of Delhi College of Engineering. The chart contains the names of different Companies and salaries offered by them in the year 2009 to fresh graduates in Bio- Technology from Delhi College of Engineering.
xxx xxx xxx
9. The average salary of a graduate in Bio-Technology from Delhi College of Engineering during 2009 is 4.6 lacs per annum. The chart further shows that there were 18 eligible students who all got the job offers and the placement was 100%. The chart further shows that the minimum salary offered was Rs.3. lacs per annum and highest salary offered to an Engineering graduate in Bio-Technology was Rs.9 lacs per annum. 10. From the inquiry conducted by this Court as to the earning capacity of the deceased, it is held that the earning capacity of the deceased after completing graduation course would have been Rs.4.6 lacs per annum i.e. Rs.38,333/- per month." (Emphasis Supplied) 16.4 In HDFC Ergo General Insurance Co. Ltd. v. Rattan Kumar Dwivedi, 2017 SCC OnLine Del 9874, the accident dated 21st July, 2008 resulted in the death of a national level sportsperson who was a student of B. Com. (Hons.). The Claims Tribunal awarded Rs.10,40,000/- by taking the earning capacity of the deceased as Rs.10,000/- per month which was challenged on the ground that minimum wages should have been applied by the Claims Tribunal. Applying the principles laid down by the Supreme Court in Municipal Corporation of Delhi v. Association of Victims of Uphaar Tragedy, AIR 2012 SC 100, this Court rejected the application of minimum wages to such cases. Considering the brilliant Date of Decision: 16.12.2022 || Page 22 of 44 MACP No.326/2019: Vijay Kumar (L.R(s) of Ms.Shweta Khatri) V/s Ranvir Singh & Ors. MACP No.327/2019: Vijay Kumar & Anr. (L.Rs of Smt.Sudesh) V/s Ranvir Singh & Ors.
(Both in FIR No.434/2018: PS Kundli, District Sonepat, Haryana) record of the student as a sportsperson, this Court determined the earning capacity of the deceased as Rs.25,000/- per month and enhanced the compensation from Rs.10,40,000/- to Rs.24,50,000/-. The relevant portion of the judgment is as under:
"14. In the present case, the deceased Apoorva Dwivedi was a student of B.Com (Hons.) at Bharti College, Delhi University. She was a sports person having won 86 prizes/certificates in athletics, track and field, gymnastics, baseball, soft ball, basketball, cricket etc. The deceased had secured second place in team event at 40th Delhi State Gymnastics Championship, 2001; best athlete of the year 2003-2004 at school and zonal level and first position in baseball in 52nd National School Games conducted by School Games Federation of India held from 23rd December to 28th December, 2006. The deceased was sports captain of Holy Child Senior Secondary School, Tagore Garden, New Delhi for the academic year 2007-08. Judicial notice is taken of the notifications for government job for sports persons as well as advertisements in private jobs for sports persons, under which a graduate sports person can secure a job with a job in the pay scale of Rs.30,000/- to Rs.40,000/- per month. Considering that the deceased was a sports person with an extraordinary talent in various sports, namely, athletics, track and field, gymnastics, baseball, soft ball, basketball, cricket etc. and having been awarded 86 prizes/certificates, it is presumed that the deceased would have earned Rs.25,000/- per month after completing her graduation. Deducting 50% towards the personal expenses of the deceased and applying the multiplier of 14 according to the age of her mother, the loss of dependency is computed as Rs.21,00,000/- [(Rs.25,000- 50%)x12x14]. The compensation for loss of love and affection is enhanced from Rs.25,000/- to Rs.1,00,000/-; and compensation for pain and suffering is enhanced from Rs.25,000/- to Rs.1,00,000/-. Adding Rs.1,30,000/- towards medical expenses and Rs.20,000/- towards funeral expenses, total compensation is computed as Rs.24,50,000/- [21,00,000/- + 1,00,000/- + 1,30,000/- + 1,00,000/- + 20,000/-]. The Claims Tribunal has awarded interest @ 7.5% Date of Decision: 16.12.2022 || Page 23 of 44 MACP No.326/2019: Vijay Kumar (L.R(s) of Ms.Shweta Khatri) V/s Ranvir Singh & Ors. MACP No.327/2019: Vijay Kumar & Anr. (L.Rs of Smt.Sudesh) V/s Ranvir Singh & Ors.
(Both in FIR No.434/2018: PS Kundli, District Sonepat, Haryana) per annum which is on a lower side considering that the Supreme Court as well as this Court are consistently awarding interest @ 9% per annum. The rate of interest is enhanced from 7.5% to 9% per annum."
16.5 In HDFC Ergo General Insurance Co. Ltd. v. Lalta Devi, 2015 ACJ 2526, the accident dated 19th June, 2011 resulted in the death of a third year student of B. Tech. The Claims Tribunal awarded compensation of Rs.19,50,000/- by taking the earning capacity of the deceased as Rs.25,000/- per month. The insurance company and the claimants both challenged the award before this Court. This Court held the earning capacity of the deceased to be Rs.26,815/- per month by relying on the basic pay of a junior engineer and the compensation amount was enhanced from Rs.19,50,000/- to Rs.22,94,871/-.
16.6 In United India Insurance Company Limited v. Anita, 2017 SCC OnLine Del 11152, the accident dated 16th June, 2009 resulted in the death of a 21 year old student of B. Tech. (Mechanical and Automation Engineering). The Claims Tribunal awarded Rs.34,65,689/- by taking the earning capacity of the deceased as Rs.26,815/- per month and 50% future prospects thereon, which was challenged by the insurance company. This Court upheld the award of the Claims Tribunal and dismissed the appeal. The relevant portion of the judgment is as under:
"5. The Claims Tribunal took the income of the deceased as Rs.26,851/- following the judgment of this Court in HDFC Ergo General Insurance Co. Ltd. v. Lalta Devi, 2015 ACJ 2526 in which this Court took the income of a B.Tech third year student in a similar university as Rs.26,851/- according to the salary drawn by a Junior Engineer. The learned Tribunal has also taken into consideration that the deceased had passed the 5 th semester in December 2008 and had received the approval for six weeks industrial training with Indian Airlines. The Claims Tribunal also considered the mark sheets of the deceased for 3rd, 4th and 5th semester along with certificate of excellence for 3rd semester and Date of Decision: 16.12.2022 || Page 24 of 44 MACP No.326/2019: Vijay Kumar (L.R(s) of Ms.Shweta Khatri) V/s Ranvir Singh & Ors. MACP No.327/2019: Vijay Kumar & Anr. (L.Rs of Smt.Sudesh) V/s Ranvir Singh & Ors.
(Both in FIR No.434/2018: PS Kundli, District Sonepat, Haryana) deceased had stood first in the 3 rd semester examination in December, 2007. The Claims Tribunal also considered the statement of PW-2 who was a class fellow of the deceased and had initially joined Maxim Group in 2011 at a monthly salary of Rs.16,000/- as Production Engineer and thereafter, another company with a package of Rs.4,34,000/- per annum with 18% increment in the salary. 6. This Court is of the view that the income of the deceased computed by the Claims Tribunal and the future prospects added thereon are fair and reasonable and does not warrant any interference."
16.7 In Bharti AXA General Insurance Co. Ltd. v. Upender Kumar Shastri, 2018 SCC OnLine Del 7855, the accident dated 01st September, 2014 resulted in the death of an 18 years old student of B.A. (Hons.) in Kamla Nehru College, Delhi University. The Claims Tribunal awarded compensation of Rs.30,05,000/- by taking the earning capacity as Rs.40,000/- per month. This Court held that the earning capacity of Rs.40,000/- per month was on higher side and reduced the earning capacity of the deceased to Rs.27,600/-. The relevant portion of the judgment is as under:
"2. The accident dated 01st September, 2014 resulted in the death of Deepti. The deceased was aged 18 years at the time of the accident and was a student of B.A. (Hons) in Kamla Nehru College, Delhi University. The Claims Tribunal took the earning capacity of the deceased as Rs.40,000/- considering her brilliant academic record and her aspiration to join Indian Police Service. Relevant portion of the award is reproduced hereunder: -
"As far as the income of the deceased is concerned, admittedly she was a student when she met with an accident and died. In order to assess her notional income her academic record is required to be seen. PW-1 in his affidavit has alleged that he deceased was doing BA hon. 1st year course from Kamla Nehru College, she was brilliant in her studies and extraordinary in sport and since her childhood she was maintaining a good academic record and was doing Date of Decision: 16.12.2022 || Page 25 of 44 MACP No.326/2019: Vijay Kumar (L.R(s) of Ms.Shweta Khatri) V/s Ranvir Singh & Ors. MACP No.327/2019: Vijay Kumar & Anr. (L.Rs of Smt.Sudesh) V/s Ranvir Singh & Ors.
(Both in FIR No.434/2018: PS Kundli, District Sonepat, Haryana) very well at sports at state and national level and secured top positions. It is stated that the deceased has secured 90% marks in her XIIth class and she secured 99% marks in Geography and secured all India top position, she was congratulated by the then HRD Minster Smt. Smriti Zuben Irani vide letter dated 02.06.2014 i.e. Ex.PW1/5. It is stated that the deceased was sincere, hard working student and she was preparing for civil services examination as she wanted to join Indian Police Services. Her educational and sports record were proved as Ex.PW1/6 (Colly) which shows that the deceased was a brilliant student, both in education as well as in sports and it can be safely assumed that she was having a bright future. Her various certificates of merits have been proved on record with respect to her various achievements in sports and education. But it is known to all that life is full of probabilities and improbabilities and nothing can be said with certainly about anyone's future and the same is with the deceased also but having regard to her achievements in her educational carrier as well as in supports and the fact that she was studying in well reputed college of Delhi University, it can be said with certainly that had she lived longer she must have achieved success in her life. In the totality of facts and circumstances, of the case, the evidence on record and having regard to the uncertainities of life and the fact that the deceased was a girl and she would have married after completing her education and establishing in her carrier in all probabilities and the fact that her parents were not financially dependent upon her at the time of her death, I am of the opinion that it cannot be assumed at this stage that she in all circumstances, would have cleared civil services examination in future, but it can be said with some certainly that even if she would not have cleared he civil services examination, she would have had a great future. Even if she would have worked in a private sector or even if she would have cleared a clerical exam in Govt. Sector, after completing her education she must have got an initial salary of Rs.40,000/- per month. Therefore, the loss of estate would come to Rs.40,000/- x 12 x 18 = Rs.86,40,000/-. (Emphasis supplied)"Date of Decision: 16.12.2022 || Page 26 of 44
MACP No.326/2019: Vijay Kumar (L.R(s) of Ms.Shweta Khatri) V/s Ranvir Singh & Ors. MACP No.327/2019: Vijay Kumar & Anr. (L.Rs of Smt.Sudesh) V/s Ranvir Singh & Ors.
(Both in FIR No.434/2018: PS Kundli, District Sonepat, Haryana) xxx xxx xxx
4. Learned counsel for the appellant in MAC APP. 376/2017 urged at the time of hearing that the minimum wages be taken into consideration to compute the compensation. It is submitted that the earning capacity of Rs.40,000/- per month taken by the Claims Tribunal is on a higher side.
xxx xxx xxx
6. The present case relates to an accident dated 01st September, 2014 whereas Rattan Kumar Dwivedi (supra) related to the accident of the year 2008. This Court is of the view that the earning capacity of Rs.40,000/- taken by the Claims Tribunal is on a higher side. The earning capacity of the deceased is reduced to Rs.27,600/- per month. The deceased was unmarried and, therefore, 50% has to be deducted towards her personal expenses. The deceased was 18 years of age, therefore the multiplier of 18 has to be applied according to the age of the deceased in terms of National Insurance Co. Ltd. v. Pranay Sethi 2017 SCC Online SC 1270."
(Emphasis Supplied)
17. There is no merit in the contention of the insurance company that the compensation be computed by taking the minimum wages of Rs.8,814/- per month as the income of the deceased. The law is well settled that it is not mandatory to resort to minimum wages to compute the compensation in each and every case. Reference is made to Municipal Corporation of Delhi v. Association of Victims of Uphaar Tragedy (supra), in which 59 persons died in 1997 and the Supreme Court granted compensation of Rs.10,00,000/- to the victims above 20 years of age by taking their income as Rs.8,333/- per month whereas the minimum wages at the relevant time were less than Rs.2600/- per month. The relevant portion of the judgment is as under:
"38. ... It can be by way of making monetary amounts for the wrong done or by way of exemplary damages, exclusive of any amount recoverable in a civil action based on tortuous liability. But in such a case it is improper to assume admittedly without any basis, that every person who visits a cinema theatre and purchases a balcony ticket should be of a Date of Decision: 16.12.2022 || Page 27 of 44 MACP No.326/2019: Vijay Kumar (L.R(s) of Ms.Shweta Khatri) V/s Ranvir Singh & Ors. MACP No.327/2019: Vijay Kumar & Anr. (L.Rs of Smt.Sudesh) V/s Ranvir Singh & Ors.
(Both in FIR No.434/2018: PS Kundli, District Sonepat, Haryana) high income group person. In the year 1997, Rs. 15,000 per month was rather a high income. The movie was a new movie with patriotic undertones. It is known that zealous movie goers, even from low income groups, would not mind purchasing a balcony ticket to enjoy the film on the first day itself. To make a sweeping assumption that every person who purchased a balcony class ticket in 1997 should have had a monthly income of Rs. 15,000 and on that basis apply high multiplier of 15 to determine the compensation at a uniform rate of Rs. 18 lakhs in the case of persons above the age of 20 years and Rs. 15 lakhs for persons below that age, as a public law remedy, may not be proper. While awarding compensation to a large group of persons, by way of public law remedy, it will be unsafe to use a high income as the determinative factor. The reliance upon Neelabati Behera (AIR 1993 SC 1960 : 1993 AIR SCW 2366) in this behalf is of no assistance as that case related to a single individual and there was specific evidence available in regard to the income. Therefore, the proper course would be to award a uniform amount keeping in view the principles relating to award of compensation in public law remedy cases reserving liberty to the legal heirs of deceased victims to claim additional amount wherever they were not satisfied with the amount awarded. Taking note of the facts and circumstances, the amount of compensation awarded in public law remedy cases, and the need to provide a deterrent, we are of the view that award of Rs. 10 lakhs in the case of persons aged above 20 years and Rs. 7.5 lakhs in regard to those who were 20 years or below as on the date of the incident, would be appropriate. We do not propose to disturb the award of Rs. 1 lakh each in the case of injured. The amount awarded as compensation will carry interest at the rate of 9% per annum from the date of writ petition as ordered by the High Court, reserve liberty to the victims or the LRs. of the victims as the case may be to seek higher remedy wherever they are not satisfied with the compensation. Any increase shall be borne by the Licensee (theatre owner) exclusively."
(Emphasis Supplied) xxxxx Date of Decision: 16.12.2022 || Page 28 of 44 MACP No.326/2019: Vijay Kumar (L.R(s) of Ms.Shweta Khatri) V/s Ranvir Singh & Ors. MACP No.327/2019: Vijay Kumar & Anr. (L.Rs of Smt.Sudesh) V/s Ranvir Singh & Ors.
(Both in FIR No.434/2018: PS Kundli, District Sonepat, Haryana)
26. Somewhat, similar observations has been made by Hon'ble High Court of Delhi in case of Upender Kumar Shastri (supra), wherein the Hon'ble High Court has been pleased to take the earning capacity of a girl named Deepti, who suffered fatal injuries in road traffic accident on 01.09.2014 as Rs.27,600/- per month. She was aged about 18 years as the time of accident and a student of B.A (Hons.) in Kamla Nehru College, University of Delhi.
27. In view of the above judicial precedents and considering the professional qualification of deceased Ms.Shweta Khatri, this Tribunal is inclined to take her "earning capacity" as Rs.25,000/- per month. The learned counsel for the petitioner further argued that future prospects should also be awarded to the petitioner as per law.
28. The learned counsel for the insurance company further made a strong pitch that PW-1 being father of deceased was not dependent upon the deceased and as such he is not entitled to any compensation. As regards the dependency of PW-1 upon deceased, it is noted that in "Magma General Insurance Co. Ltd. V/s Nanu Ram", (2018) 18 SCC 130, the Hon'ble Supreme Court had reaffirmed the rights of parents to compensation in case of accidental death of a child. Furthermore, in case reported as, "(2021) 276 DLT 415", titled as, "Indrawati V/s Ranvir Singh", the Hon'ble High Court of Delhi has been pleased to hold as under:
xxxxx
12. This Court is of the view that the parents of the deceased are considered in law as dependent on their children, considering that the children are bound to support their parents in their old age, when the parents would be unable to maintain themselves and the law imposes a responsibility on the children to maintain their parents. Even if the parents are not dependent on their children at the time of the accident, they will certainly Date of Decision: 16.12.2022 || Page 29 of 44 MACP No.326/2019: Vijay Kumar (L.R(s) of Ms.Shweta Khatri) V/s Ranvir Singh & Ors.
MACP No.327/2019: Vijay Kumar & Anr. (L.Rs of Smt.Sudesh) V/s Ranvir Singh & Ors.
(Both in FIR No.434/2018: PS Kundli, District Sonepat, Haryana) be dependent, both financially and emotionally, upon their children at the later stage of their life, as the children were dependent upon their parents in their initial years. It would therefore be unfair as well as inequitable to deny compensation for loss of dependency to a parent, who may not be dependent on his/her child at the time of accident per se but would become dependent at his/her later age.
xxxxx The contention of learned counsel for the insurance company in this regard accordingly stands rejected.
29. As already discussed hereinabove, the age of deceased Ms.Shweta Khatri at the time of accident was 21 years 06 months and 10 days and hence, multiplier of 18 would be applicable in view of pronouncement made by Constitutional Bench of Apex Court in the case titled as "Sarla Verma Vs. DTC." 2009 ACJ 1298 SC.
30. Considering the fact that deceased was aged about 21½ years at the time of accident, future prospects @ 40% has to be awarded in favour of petitioner/claimant in view of recent pronouncement made by Constitutional Bench of Apex Court in the case titled as "National Insurance Company Ltd. Vs. Pranay Sethi & Ors." mentioned supra, as well as in view of recent decision of Hon'ble Delhi High Court in appeal bearing MAC APP No. 798/2011 titled as "Bajaj Allianz General Insurance Company Ltd. Vs. Pooja & Ors", decided on 02.11.2017.
31. (i) Since, deceased Ms.Shweta Khatri was unmarried at the time of accident, there has to be deduction of one half (½), as held by the Hon'ble Supreme Date of Decision: 16.12.2022 || Page 30 of 44 MACP No.326/2019: Vijay Kumar (L.R(s) of Ms.Shweta Khatri) V/s Ranvir Singh & Ors. MACP No.327/2019: Vijay Kumar & Anr. (L.Rs of Smt.Sudesh) V/s Ranvir Singh & Ors.
(Both in FIR No.434/2018: PS Kundli, District Sonepat, Haryana) Court of India in case titled as "Sarla Verma Vs. Delhi Transport Corporation", 2009 ACJ 1298 SC. Thus, total loss of dependency would come out as under:
S.No. Head Amount (Rs.) Remarks
(1) Monthly Income of deceased (A) 25,000.00 Earning capacity of deceased
(2) Add: Future prospects @ 40% (B) 10,000.00 40% of (A)
(3) Less: Personal expenses of deceased (C) 17,500.00 [(A) + (B)] / 2 = (C)
@ one half (½)
(4) Monthly loss of dependency (D) 17,500.00 [(A)+(B)] - (C) = (D)
(5) Annual Loss of dependency (E) 2,10,000.00 (D) x 12 = (E)
(6) Multiplier @ 18
(7) Total Loss of dependency (F) 37,80,000.00 (E) x 18 (multiplier) = (F)
(ii) Calculating, the total loss of dependency other way also comes out to
Rs.37,80,000/- (Rs.25,000/- x ½ x 140/100 x 12 x 18). Hence, a sum of
Rs.37,80,000/- is awarded under this head in favour of the petitioner/claimant.
LOSS OF LOVE & AFFECTION
32. After the celebrated judgment of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors. mentioned supra and recent judgment titled New India Assurance Company Limited versus Somwati & Ors., Civil Appeal no. 3093 of 2020 dated 07.09.2020 the petitioners are not entitled to be compensated under this head. Further, Hon'ble Delhi High Court in appeal titled as "Bajaj Allianz General Insurance Company Ltd. Vs. Pooja & Ors", mentioned supra has been pleased to observe in para 18 of the judgment that the Constitution Bench decision in Pranay Sethi (supra) does not recognize any other non-pecuniary head of damages. Hence, no amount of compensation is being awarded under this head.
Date of Decision: 16.12.2022 || Page 31 of 44MACP No.326/2019: Vijay Kumar (L.R(s) of Ms.Shweta Khatri) V/s Ranvir Singh & Ors. MACP No.327/2019: Vijay Kumar & Anr. (L.Rs of Smt.Sudesh) V/s Ranvir Singh & Ors.
(Both in FIR No.434/2018: PS Kundli, District Sonepat, Haryana) LOSS OF CONSORTIUM
33. (i) In view of the judgment of Hon'ble Supreme Court in case titled as, "New India Assurance Company Limited V/s Somwati & Ors.", Civil Appeal No.3093 of 2020, dated 07.09.2020, I am of the considered opinion that petitioner/PW-1 being father of deceased is entitled for payment of Rs.40,000/- towards loss of consortium. It is also a matter of record that Smt.Sudesh (mother of deceased Ms.Shweta Khatri) had expired on 15.09.2018, i.e two days after the accident. As a matter of principle, Smt.Sudesh was also entitled for the loss of consortium of her deceased daughter, as she breathed her last at Fortis Hospital on 15.09.2018. I order accordingly.
(ii) Furthermore, as per judgment of Pranay Sethi (supra), the amount awarded under this Head should be enhanced @ 10% in every three years. This judgment was passed by Hon'ble Supreme Court on 31.10.2017. Consequently, a sum of Rs.40,000/-+Rs.4,000/- (10% of Rs.40,000/-) = Rs.44,000/- x 2 = Rs.88,000/- (Rs.44,000/- each for PW-1 and his wife Smt.Sudesh, since she expired on 15.09.2018) is awarded to petitioner(s)/claimant(s) under this head.
LOSS OF ESTATE & FUNERAL EXPENSES
34. 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 "National Insurance Company Ltd. Vs. Pranay Sethi & Ors." mentioned supra, a sum of Rs.15,000/-+Rs.1,500/- (enhancement @ 10% of Rs.15,000/-)=Rs.16,500/- each is awarded in favour of petitioner/PW-1 on account of loss of estate and funeral expenses.
35. Thus, the total compensation in MACP No.326/2019 is assessed as under:
Date of Decision: 16.12.2022 || Page 32 of 44MACP No.326/2019: Vijay Kumar (L.R(s) of Ms.Shweta Khatri) V/s Ranvir Singh & Ors. MACP No.327/2019: Vijay Kumar & Anr. (L.Rs of Smt.Sudesh) V/s Ranvir Singh & Ors.
(Both in FIR No.434/2018: PS Kundli, District Sonepat, Haryana) S.No. Head Amount (Rs.) (1) Loss of dependency 37,80,000.00 (2) Loss of Consortium (Rs.44,000/-x 2) 88,000.00 (3) Loss of Estate & Funeral Expenses 33,000.00 (Rs.16,500/- each) T OTAL 39,01,000.00 COMPENSATION: ASSESSMENT & DISTRIBUTION ISSUE No.(2) in MACP No.327/2019 (claim petition in respect of fatal injuries suffered by Smt.Sudesh) LOSS OF FINANCIAL DEPENDENCY
36. (i) The claimants in the aforesaid claim petition are husband and son of deceased Smt.Sudesh. For ascertaining the loss of financial dependency, the evidence of PW-1/Shri Vijay Kumar (husband of deceased Smt.Sudesh) is very relevant. This witness in his evidence by way of affidavit (Ex.PW1/A) categorically stated that at the time of accident, his wife Smt.Sudesh was aged about 42 years, possessing a sound health and good physique and besides working as a housewife/homemaker, she was also helping him running his Kiryana Shop from their residence at Village Shahpur Garhi, Narela, Delhi. He further stated that deceased Smt.Sudesh was skilled in her work and her services were of great value to the petitioners, as being a homemaker, she used to cook food, buy clothes, wash and iron them for her family members and used to do every other household chores which a housewife does in routine and as such, the notional income for the services rendered by her has been taken as Rs.17,000/- per month.
(ii) Though, the learned counsel for R-3/insurance company has made a strong pitch that deceased Smt.Sudesh was a simple housewife and not earning anything at the time of accident and as such, at the most minimum wages of an Date of Decision: 16.12.2022 || Page 33 of 44 MACP No.326/2019: Vijay Kumar (L.R(s) of Ms.Shweta Khatri) V/s Ranvir Singh & Ors. MACP No.327/2019: Vijay Kumar & Anr. (L.Rs of Smt.Sudesh) V/s Ranvir Singh & Ors.
(Both in FIR No.434/2018: PS Kundli, District Sonepat, Haryana) unskilled worker prevalent in the State of Delhi at the relevant time be taken as the income of deceased Smt.Sudesh. I am afraid this argument does not hold much water in as much as it is common knowledge that the services of mother/wife is available 24 hours and her duties are never fixed. Courts have time and again recognized that contribution made by the wife to the house is invaluable and that it cannot be computed in terms of money. A housewife/homemaker does not only work by the clock and she is in constant attendance of the family throughout and such services rendered by the homemaker has to be necessarily kept in view while calculating the loss of income. In my considered opinion, the income of a housewife/homemaker is to be assessed equivalent to that of a "skilled worker"
considering her multifarious role as home manager. I find support in my aforesaid view from the observations made by Hon'ble Supreme Court of India in case reported as, "Civil Appeal Nos.19-20/2021", titled as, "Kirti & Anr. Etc. V/s Oriental Insurance Company Limited" (DOD: 05.01.2021); "Civil Appeal Nos.2624/2020", titled as, "Rajendra Singh V/s National Insurance Company Limited" (DOD: 18.01.2020) as also the law laid down by Hon'ble Gauhati High Court in "MACApp.No.31/2017", titled as, "Sri Mrinal Kanti Debnath & Ors. V/s United India Insurance Company Limited & Ors." (DOD: 19.01.2022). As such, this Tribunal is inclined to assess income of deceased Smt.Sudesh taking the income of a "skilled worker" under Minimum Wages Act applicable in the State of Delhi during the period in question. The minimum wages of a skilled worker were Rs.16,858/- per month as on the date of accident, i.e 13.09.2018. Accordingly, the monthly income of deceased Smt.Sudesh is taken as Rs.16,858/-.Date of Decision: 16.12.2022 || Page 34 of 44
MACP No.326/2019: Vijay Kumar (L.R(s) of Ms.Shweta Khatri) V/s Ranvir Singh & Ors. MACP No.327/2019: Vijay Kumar & Anr. (L.Rs of Smt.Sudesh) V/s Ranvir Singh & Ors.
(Both in FIR No.434/2018: PS Kundli, District Sonepat, Haryana) QUANTUM
37. (i) I now opine upon the age of deceased Smt.Sudesh the time of accident. In this regard, it is noted that PW-1 (husband of deceased) has proved on record the copies of Aadhar Card and PAN Card of his deceased wife as Ex.PW1/6 (Colly) (OSR), wherein her Date of Birth (DOB) is being reflected as 17.08.1976. The authenticity or otherwise of the said documents has nowhere been disputed on behalf of respondent(s). The date of accident in the matter is 13.09.2018. As such, deceased Smt.Sudesh was aged 42 years and 27 days as on the date of accident and hence, multiplier of 14 would be applicable in view of pronouncement made by Constitutional Bench of Apex Court in the case titled as "Sarla Verma Vs. DTC." 2009 ACJ 1298 SC.
38. Considering the fact that deceased Smt.Sudesh was aged about 42 years at the time of accident, future prospects @ 25% has to be awarded in favour of petitioner(s)/claimant(s) in view of recent pronouncement made by Constitutional Bench of Apex Court in the case titled as "National Insurance Company Ltd. Vs. Pranay Sethi & Ors." mentioned supra, as well as in view of recent decision of Hon'ble Delhi High Court in appeal bearing MAC APP No. 798/2011 titled as "Bajaj Allianz General Insurance Company Ltd. Vs. Pooja & Ors", decided on 02.11.2017.
39. (i) Since, deceased Smt.Sudesh was married and there are two claimants/dependents upon her (i.e, husband/PW-1 + son/petitioner No.2), there has to be deduction of one third (1/3rd), as held by the Hon'ble Supreme Court of India in case titled as "Smt.Sarla Verma & Ors. V/s Delhi Transport Corporation & Anr.", 2009 ACJ 1298 SC. Thus, total loss of dependency would come out as under:
Date of Decision: 16.12.2022 || Page 35 of 44MACP No.326/2019: Vijay Kumar (L.R(s) of Ms.Shweta Khatri) V/s Ranvir Singh & Ors. MACP No.327/2019: Vijay Kumar & Anr. (L.Rs of Smt.Sudesh) V/s Ranvir Singh & Ors.
(Both in FIR No.434/2018: PS Kundli, District Sonepat, Haryana) S.No. Head Amount (Rs.) Remarks (1) Monthly Income of deceased (A) 16,858.00 As per Minimum Wages Act applicable for a "skilled person"
(2) Add: Future prospects @ 25% (B) 4,214.50 25% of (A) (3) Less: Personal expenses of deceased (C) 7,024.17 [(A) + (B)] / 4 = (C) @ one third (1/3) (4) Monthly loss of dependency (D) 14,048.33 [(A)+(B)] - (C) = (D) (5) Annual Loss of dependency (E) 1,68,579.96 (D) x 12 = (E) (6) Multiplier @ 14 (7) Total Loss of dependency (F) 23,60,119.44 (E) x 15 (multiplier) = (F) Rounded Off to: 23,60,000.00
(ii) Calculating, the total loss of dependency other way also comes out to Rs.23,60,120.00 (Rs.16,858- x 2/3 x 125/100 x 12 x 14). Hence, a sum of Rs.23,60,000/- (rounded off) is awarded under this head in favour of the petitioners/claimants.
MEDICAL EXPENSES
40. (i) The accident in this case occurred on 13.09.2018, whereas deceased Smt.Sudesh expired at Fortis Hospital, Shalimar Bagh on 15.09.2018. PW-1/Shri Vijay Kumar during this interregnum period had firstly taken her deceased wife to Santom Hospital on 13.09.2018 and thereafter on the same day shifted her to Fortis Hospital, Shalimar Bagh, Delhi. It has been the case of PW-1 that he incurred more than Rs.5,00,000/- during this period on the medical treatment of his deceased wife. PW-1 has proved on record the original medical bills and receipts thereof as Ex.PW1/1 (Colly) (32 sheets) and list/chart of medical bills as Ex.PW1/2, wherein an amount of Rs.3,55,898/- is shown to have been incurred on the medical treatment of deceased Smt.Santosh cumulatively at the aforesaid two hospitals. The said amount has not been disputed by respondent No.3/insurance company. Accordingly, as per the documents/medical bills proved by PW-1 on record, a sum of Rs.3,55,898/- is awarded to the L.Rs of deceased/petitioners under this head.
Date of Decision: 16.12.2022 || Page 36 of 44MACP No.326/2019: Vijay Kumar (L.R(s) of Ms.Shweta Khatri) V/s Ranvir Singh & Ors. MACP No.327/2019: Vijay Kumar & Anr. (L.Rs of Smt.Sudesh) V/s Ranvir Singh & Ors.
(Both in FIR No.434/2018: PS Kundli, District Sonepat, Haryana) CONVEYANCE & ATTENDANT CHARGES
41. It is a matter of record that pursuant to the accident on 13.09.2018, PW- 1 had firstly shifted his deceased wife to Santom Hospital, Prashant Vihar and thereafter on the same day shifted her to Fortis Hospital, Shalimar Bagh. Though, the L.Rs of deceased/petitioners have failed to lead any cogent evidence on record in respect of amount incurred by them under the aforesaid head, however, the period of hospitalization of deceased Smt.Sudesh in the aforesaid two hospitals has not at all been disputed by the R-3/insurance company. Considering the serious nature of injuries suffered by the deceased vis-à-vis the period of hospitalization, it is clearly evident that petitioners would have also incurred considerable amount towards conveyance charges & follow up during the period of her medical treatment. Furthermore, the deceased would have been definitely helped by some person either outsider or from his family, to perform her daily activities as also while visiting the hospital during the course of his medical treatment. In case reported as, AIR 1981 Delhi 558, titled as, "DTC V/s Lalit", Hon'ble High Court of Delhi has been pleased to hold that victim is entitled to compensation even if no attendant is hired as some family member renders gratuitous services. In these facts and circumstances, I hereby award a notional sum of Rs.25,000/- for conveyance as well as attendant charges to the L.Rs of deceased/petitioners.
LOSS OF LOVE & AFFECTION
42. After the celebrated judgment of "National Insurance Company Ltd. V/s Pranay Sethi & Ors. mentioned supra and recent judgment titled New India Assurance Company Limited versus Somwati & Ors., Civil Appeal no. 3093 of 2020 dated 07.09.2020 the petitioners are not entitled to be compensated under this head. Further, Hon'ble Delhi High Court in appeal titled as "Bajaj Allianz General Insurance Company Ltd. Vs. Pooja & Ors", mentioned supra has been pleased to Date of Decision: 16.12.2022 || Page 37 of 44 MACP No.326/2019: Vijay Kumar (L.R(s) of Ms.Shweta Khatri) V/s Ranvir Singh & Ors. MACP No.327/2019: Vijay Kumar & Anr. (L.Rs of Smt.Sudesh) V/s Ranvir Singh & Ors.
(Both in FIR No.434/2018: PS Kundli, District Sonepat, Haryana) observe in para 18 of the judgment that the Constitution Bench decision in Pranay Sethi (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
43. In view of the judgment of Hon'ble Supreme Court in case titled as, "New India Assurance Company Limited V/s Somwati & Ors.", Civil Appeal No.3093 of 2020, dated 07.09.2020, I am of the considered opinion that husband/PW-1 and son (petitioner No.2 herein) of deceased are entitled for payment of Rs.40,000/- each towards loss of consortium. Furthermore, as per judgment of Pranay Sethi (supra), the amount awarded under this Head should be enhanced @ 10% in every three years. This judgment was passed by Hon'ble Supreme Court on 31.10.2017. Consequently, a sum of Rs.40,000/-+Rs.4,000/- (10% of Rs.40,000/-) = Rs.44,000/- each to both the claimants/petitioners is awarded under this head. Since, there are two L.Rs of deceased in MACP No.327/2019, therefore, a total sum of Rs.88,000/- (@Rs.44,000/- x 2) is awarded to the petitioners/claimants under this head.
LOSS OF ESTATE & FUNERAL EXPENSES
44. 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 "National Insurance Company Ltd. Vs. Pranay Sethi & Ors." mentioned supra, a sum of Rs.15,000/-+Rs.1,500/- (enhancement @ 10% of Rs.15,000/-)=Rs.16,500/- each is awarded in favour of petitioners on account of loss of estate and funeral expenses.
45. Thus, the total compensation in MACP No.327/2019 is assessed as under:
Date of Decision: 16.12.2022 || Page 38 of 44MACP No.326/2019: Vijay Kumar (L.R(s) of Ms.Shweta Khatri) V/s Ranvir Singh & Ors. MACP No.327/2019: Vijay Kumar & Anr. (L.Rs of Smt.Sudesh) V/s Ranvir Singh & Ors.
(Both in FIR No.434/2018: PS Kundli, District Sonepat, Haryana) S.No. Head Amount (Rs.) (1) Loss of dependency 23,60,000.00 (2) Expenditure on medical expenses 3,55,898.00 (3) Conveyance + Attendant Charges 25,000.00 (Notional Amount awarded) (4) Loss of Consortium (Rs.44,000/-x 2) 88,000.00 (5) Loss of Estate & Funeral Expenses 33,000.00 (Rs.16,500/- each) T OTAL 28,61,898.00 (Rounded off to Rs.28,62,000.00)
46. Now, the question which arises for determination is as to which of the respondents is liable to pay the compensation amount. It is a matter of record that on the date and time of accident in question, the offending vehicle, i.e Wagon-R car bearing registration No.HR-51P-0474 was lying insured with respondent No.3/HDFC Ergo General Insurance Company Limited, vide Policy No. 2311 1003 1590 4900 000, valid from 31.05.2018 to 30.05.2019. Respondent No.3/insurance company has not been able to establish on record that any term or condition of the insurance policy was breached/violated by the insured. Keeping in view the existence of valid insurance policy and valid Driving Licence of respondent No.1/driver as on the date and time of accident, respondent No.3/insurance company is liable to pay the compensation amount, as insurance company is liable to indemnify the insured. Issue No.2 in both the claim petitions is decided accordingly.
ISSUE No.3: RELIEF
47. In view of my findings on issues No.1 & 2 (in both the aforesaid claim petitions), I hereby award the compensation as under:
Date of Decision: 16.12.2022 || Page 39 of 44MACP No.326/2019: Vijay Kumar (L.R(s) of Ms.Shweta Khatri) V/s Ranvir Singh & Ors. MACP No.327/2019: Vijay Kumar & Anr. (L.Rs of Smt.Sudesh) V/s Ranvir Singh & Ors.
(Both in FIR No.434/2018: PS Kundli, District Sonepat, Haryana)
(i) In MACP No.326/2019 (claim petition in respect of fatal injuries suffered by Ms.Shweta Khatri): I award compensation of Rs.39,01,000/- (Rupees Thirty Nine Lakhs One Thousand Only) (including Interim Award, if any) alongwith interest @ 9% per annum in favour of petitioner/claimant Shri Vijay Kumar and against the respondents w.e.f the date of filing of the petition, i.e 03.06.2019 till the date of its realization (Reliance placed on judgment "Oriental Insurance Company Ltd. Vs. Sangeeta Devi & Ors bearing MAC. APP. 165/2011 decided on 22.02.2016).
(ii) In MACP No.327/2019 (claim petition in respect of fatal injuries suffered by Smt.Sudesh): I award compensation of Rs.28,62,000/- (Rupees Twenty Eight Lakhs Sixty Two Thousand Only) (including Interim Award, if any) alongwith interest @ 9% per annum in favour of petitioner(s)/claimant(s) and against the respondents w.e.f the date of filing of the petition, i.e 03.06.2019 till the date of its realization (Reliance placed on judgment "Oriental Insurance Company Ltd. Vs. Sangeeta Devi & Ors bearing MAC. APP. 165/2011 decided on 22.02.2016).
APPORTIONMENT In MACP No.326/2019
48. (i) The statement of L.R of deceased/petitioner in terms of Clause 29 MCTAP was recorded on 26.09.2022. Having regard to the facts and circumstances of the case, it is hereby ordered that petitioner/claimant Shri Vijay Kumar shall be entitled to entire claim/compensation amount of Rs.39,01,000/- (Rupees Thirty Nine Lakhs One Thousand Only) alongwith proportionate interest thereupon.
(ii) Furthermore, out of the aforesaid claim/compensation amount, a sum of Rs.15,01,000/- (Rupees Fifteen Lakhs One Thousand Only) shall be Date of Decision: 16.12.2022 || Page 40 of 44 MACP No.326/2019: Vijay Kumar (L.R(s) of Ms.Shweta Khatri) V/s Ranvir Singh & Ors. MACP No.327/2019: Vijay Kumar & Anr. (L.Rs of Smt.Sudesh) V/s Ranvir Singh & Ors.
(Both in FIR No.434/2018: PS Kundli, District Sonepat, Haryana) immediately released to PW-1/Shri Vijay Kumar in his MACT Saving Bank Account No.41288977640, State Bank of India, Khera Khurd Branch, Delhi having IFSC Code SBIN0006819 and the remaining amount alongwith interest is directed to be kept in the form of FDRs in the multiples of Rs.50,000/- each for a period of one month, two months, three months and so on and so forth, having cumulative interest.
APPORTIONMENT In MACP No.327/2019
49. The statements of L.Rs of deceased/petitioners in terms of Clause 29 MCTAP was recorded on 26.09.2022. Having regard to the facts and circumstances of the case, it is hereby ordered that out of total claim/compensation amount of Rs.28,62,000/-, petitioner No.1/Shri Vijay Kumar (husband of deceased Smt.Sudesh) shall be entitled to share amount of Rs.18,62,000/- (Rupees Eighteen Lakhs Sixty Two Thousand Only) alongwith proportionate interest while petitioner No.2/Shri Rahul Khatri (son of deceased Smt.Sudesh) shall be entitled to share amount of Rs.10,00,000/- (Rupees Ten Lakhs Only) alongwith proportionate interest.
50. Out of share amount of petitioner No.1/Shri Vijay Kumar, a sum of Rs.8,62,000/- (Rupees Eight Lakhs Sixty Two Thousand Only) shall be immediately released to him in his MACT Saving Bank Account No.41288977640, State Bank of India, Khera Khurd Branch, Delhi having IFSC Code SBIN0006819 and the remaining amount alongwith interest is directed to be kept in the form of FDRs in the multiples of Rs.50,000/- each for a period of one month, two months, three months and so on and so forth, having cumulative interest.
Date of Decision: 16.12.2022 || Page 41 of 44MACP No.326/2019: Vijay Kumar (L.R(s) of Ms.Shweta Khatri) V/s Ranvir Singh & Ors. MACP No.327/2019: Vijay Kumar & Anr. (L.Rs of Smt.Sudesh) V/s Ranvir Singh & Ors.
(Both in FIR No.434/2018: PS Kundli, District Sonepat, Haryana)
51. Out of share amount of petitioner No.2/Shri Rahul Khatri, a sum of Rs.5,00,000/- (Rupees Five Lakhs Only) shall be immediately released to him in his MACT Saving Bank Account No.41288974887, State Bank of India, Khera Khurd Branch, Delhi having IFSC Code SBIN0006819 and the remaining amount alongwith interest is directed to be kept in the form of FDRs in the multiples of Rs.50,000/- each for a period of one month, two months, three months and so on and so forth, having cumulative interest.
52. 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 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.
Date of Decision: 16.12.2022 || Page 42 of 44MACP No.326/2019: Vijay Kumar (L.R(s) of Ms.Shweta Khatri) V/s Ranvir Singh & Ors. MACP No.327/2019: Vijay Kumar & Anr. (L.Rs of Smt.Sudesh) V/s Ranvir Singh & Ors.
(Both in FIR No.434/2018: PS Kundli, District Sonepat, Haryana)
(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.
(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(s) is/are 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.
53. Respondent No.3/HDFC Ergo General Insurance Company Limited, being insurer of offending vehicle, is directed to deposit the Award amount aforesaid with State Bank of India (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 amounts in aforesaid saving bank accounts of petitioner(s)/ claimant(s) mentioned supra, 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 this Award be given dasti to claimants. Copy of this Award be also given dasti to counsel for insurance company for compliance. Copy of this Award alongwith one photograph Date of Decision: 16.12.2022 || Page 43 of 44 MACP No.326/2019: Vijay Kumar (L.R(s) of Ms.Shweta Khatri) V/s Ranvir Singh & Ors. MACP No.327/2019: Vijay Kumar & Anr. (L.Rs of Smt.Sudesh) V/s Ranvir Singh & Ors.
(Both in FIR No.434/2018: PS Kundli, District Sonepat, Haryana) each, specimen signatures, copy of bank passbooks and copy of residence proof of both the petitioners, be sent to Nodal Officer of SBI, Rohini Court, Branch, Delhi for information and necessary compliance. Form XV & 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. Signed copy of this Award be placed on the judicial record of both the claim petitions as per rules.
Announced in the open Court on 16.12.2022 (VINOD YADAV) Judge MACT-2 (North) Rohini Courts, Delhi Certified that above Award contains 44 pages and each page is signed by me.
(VINOD YADAV) Judge MACT-2 (North) Rohini Courts, Delhi Date of Decision: 16.12.2022 || Page 44 of 44