Delhi District Court
Smt. Parvesh Sharma vs Sh. Pinku Pal (Driver) on 19 April, 2022
IN THE COURT OF Dr. KAMINI LAU : JUDGE (MACT)01
(CENTRAL) TIS HAZARI COURTS, DELHI
MACT No. 650/2020
CNR No. DLCT010092702020
Ajay @ Abhay (Deceased - Through LRs)
1. Smt. Parvesh Sharma
W/o Sh. Parveen Sharma
2. Sh. Parveen Sharma,
S/o Sh. Brij Bihari
Both residents of:
B84 P674, Near Shiv Mandir,
Punjabi Basti, Baljeet Nagar,
Patel Nagar, New Delhi110008.
......Petitioners
Versus
1. Sh. Pinku Pal (Driver)
S/o Sh. Nathu Lal,
R/o Village Ram Marhiya,
P.S. Pachdevra, District Hardoi,
Uttar Pradesh.
2. Sh. Dharambir Sharma,
S/o Sh. Harkeram Sharma,
R/o H. No. 14, Balak, Block1,
Tehsil & District Hisar, Haryana
Also at: VPO Kotputli, Jaipur,
Rajasthan303108.
Ajay @ Abhay (Deceased - Through LRs) Vs. Pinku Pal & Ors. MACT No. 650/2020
Award dated 19.04.2022 Page No. 1 of 32
3. Universal Sompo General Insurance Co. Ltd.,
Unit No. 903904, GDITL Tower,
9th Floor, Netaji Subhash Place,
Delhi.
..........Respondents
Date of filing of DAR: 16.12.2020
Date of filing of Claim Petition: 17.02.2021
Arguments concluded on: 28.03.2022
Date of Award: 19.04.2022
A W A R D:
(1) The present Detail Accident Report (DAR) has been filed on
16.12.2020 and has been registered as Motor Accident Claim Petition
in respect of an accident which took place on 06.08.2020 at 8:00 PM, at
TPoint near Ram Dharam Kanta, Street No. 10, Industrial Area,
Anand Parbat, Delhi wherein Ajay @ Abhay sustained fatal injuries.
Later, on 17.02.2021 a Clam Petition was also filed by the Legal Heirs
of the deceased which was the DAR (Detailed Accident Report) was
clubbed along with the claim petition.
BRIEF FACTS:
(2) The Facts in brief as emerged from the Claim Petition are that on 06.08.2020, the father of the deceased Ajay @ Abhay handed over his motorcycle bearing registration No. DL1SX5943 i.e. Hero Splender to one Sh. Amit who is the son of his tenant and requested to bring the mobile phone of his son Ajay @ Abhay from the shop situated Ajay @ Abhay (Deceased - Through LRs) Vs. Pinku Pal & Ors. MACT No. 650/2020 Award dated 19.04.2022 Page No. 2 of 32 at Harijan Basti, Sarai Rohilla, Delhi which was given for repair. The deceased Ajay @ Abhay also accompanied Sh. Amit on the said motorcycle and motorcycle was plying at a normal speed by obeying the traffic rules and regulations and at about 8:00 PM when they reached at TPoint, New Ram Dharam Kanta, Street No. 10, Industrial Area, Anand Parbat, Delhi. In the meantime, the offending truck bearing registration No. RJ32GB9267 driven by the respondent no.1 in a rash and negligent manner came and hit the said motorcycle as a result of which the said motorcycle came under the front wheel of the said offending truck and both the riders of the motorcycle fell down on the road and Ajay @ Abhay received injuries. The injured Ajay @ Abhay was brought to Jeewan Mala Hospital, where he was declared brought dead. On the basis of statement of the Amit an FIR bearing No. 188/2020 under Section 279/304 A IPC was registered at Police Station Anand Parbat against the driver of the offending vehicle i.e. respondent no.1.
(3) A common detailed reply/ written statement has been filed on behalf of the respondent no.1 Pinku Pal & respondent no.2 Dharambir Sharma wherein preliminary objections have been raised that the claim DAR is vague, concocted, false and incorrect. It is pleaded that the driver i.e. respondent no.1 had parked his vehicle (Truck) bearing registration No. RJ32GB9267 in left side by leaving the road as per traffic rules whereas the deceased Ajay @ Abhay was driving his motorcycle in high speed, rashly and negligently and hit the Ajay @ Abhay (Deceased - Through LRs) Vs. Pinku Pal & Ors. MACT No. 650/2020 Award dated 19.04.2022 Page No. 3 of 32 truck/vehicle of the respondent no.1 due to which reason the accident took place. It is further pleaded that the accident has not been caused by the respondent no.1 but the same was caused due to the negligence of the deceased who was driving his motorcycle bearing No. DL1SX 5943 in rash and negligent manner. It is further pleaded that the deceased Ajay @ Abhay was not having driving license as he was minor at the time of the accident and therefore, he had no right to drive the vehicle i.e. motorcycle and the owner of the vehicle is responsible for this accident because he should not have given the motorcycle to Ajay @ Abhay. It is pleaded that the respondent no.1 Pinku Pal is a Driver by profession and has valid driving license. It is further pleaded that the vehicle of the respondents bearing registration No. RJ32GB9267 is insured with the Insurance Company and the Insurance Company is liable to pay the compensation, if any to the petitioner. (4) In so far as the respondent no.3 Universal Sompo General Insurance Co. Ltd. is concerned, a detailed reply has been filed wherein it is pleaded that the respondent no.3 shall not be liable to pay the compensation if the policy was obtained nondisclosure of any material fact or by representation of any fact, which was false in the some material particular or Driving License/ Permit/ Fitness / Registration Certificate were found in violation. It is further pleaded that the respondent no.3 Insurance Company shall not be liable to indemnify the insured or pay the compensation to the claimant if there is nonreceipt of premium under Section 64 VB of the Insurance Act, Ajay @ Abhay (Deceased - Through LRs) Vs. Pinku Pal & Ors. MACT No. 650/2020 Award dated 19.04.2022 Page No. 4 of 32 1938. It is also pleaded that the respondent no.3 takes all defenses available under Section 170 of the M.V. Act if at any point of time it appears that driver / owner colluded with the claimant or abstains from the proceedings. It is pleaded that as per the facts of the case there was a Head on Collision and the deceased was a minor aged 16 years only and was driving the motorcycle without any valid and effective driving license on a public road and collided with the alleged offending truck. It is further pleaded that there was a sheer violation of Motor Vehicles Act on the part of the deceased himself as well as the owner of the motorcycle who handed over the said motorcycle to the minor to ply on the public way which resulted in to unfortunate death of the minor driver of the motorcycle or would be dangerous for personal safety of general public. It is further pleaded that in the present case the deceased and his father both have violated the law and were at fault and hence, they may not be permitted to take benefit of their own wrong and are not entitled for any compensation. It is also pleaded that the present case does not fall under the tortuous liability and the principle of 'Res ipsa loquitur' does not apply in the present case as per judgment of Hon'ble High Court Delhi passed in MAC. APP No. 954/2017 under the title Rehmani Begum & Ors. Vs. Krishan Pal & Ors.
ISSUES SETTLED:
(5) On the basis of the pleading of the parties, vide order dated 11.11.2021, this Court had settled the following issues:
Ajay @ Abhay (Deceased - Through LRs) Vs. Pinku Pal & Ors. MACT No. 650/2020 Award dated 19.04.2022 Page No. 5 of 32 i. Whether the deceased namely Ajay @ Abhay had expired in the road traffic accident which had taken place on 06.08.2020 at about 8:00 PM at TPoint, near Ram Dharam Kanta, Street No. 10, Industrial Area, Anand Parbat, Delhi, on account of rash and negligence driving by vehicle Truck bearing No. RJ 32CB9267 driven by the respondent no.1 Pinku Pal? (OPP) ii. Whether the deceased namely Ajay @ Abhay was himself guilty of contributory negligence? (OPR1) iii. Whether the LRs of deceased Ajay @ Abhay are entitled to any compensation? If yes, to what extent and from whom?
(OPP) iv. Relief.
EVIDENCE:
(6) In order to prove his case, Sh. Parveen Sharma father of the deceased Ajay @ Abhay has examined himself as his sole witness as PW1. Sh. Parveen Sharma (PW1) is the father of the deceased Ajay @ Abhay in the present case who in his examinationinchief by way of affidavit which is Ex.PW1/A has corroborated what has been earlier stated in the Claim Petition DAR. He has placed his reliance on the following documents:
1. Copy of Aadhar Card of Sh. Parveen Sharma which is Ex.PW1/1 (OSR).
2. Copy of Aadhar Card of Smt. Parvesh Sharma which is Ex.PW1/2 (OSR).
Ajay @ Abhay (Deceased - Through LRs) Vs. Pinku Pal & Ors. MACT No. 650/2020 Award dated 19.04.2022 Page No. 6 of 32
3. Complete set of DAR which is Ex.PW1/3 (running into 164 pages).
(7) This witness has not been cross examined by the Ld. Counsel for the respondent no.3 despite grant of opportunity. (8) In so far as the respondents no.1 and 2 are concerned, they have not examined any witness, rather stopped appearing before this Court/ Tribunal pursuant to which they were proceeded exparte vide order dated 16.02.2022. Here, I may note that on 16.02.2022 when case was listed for Petitioners Evidence, Sh. Gunjan Purohit Advocate/ Proxy for Sh. Siddharth Acharya Advocate had appeared for the respondent no.3 Insurance Company on the first call and sought a passover on the ground that by mistake he had carried a wrong file. Thereafter none had appeared for the Insurance Company despite repeated calls and it was only at 2:10 PM when none had appeared for the respondents, that the respondents no.1 and 2 were proceeded exparte and the examination of the witness Parveen Sharma (PW1) went uncontroverted and unrebutted The evidence of the respondent no.3 Insurance Company was also closed.
FINDINGS & OBSERVATIONS:
(9) I have heard the arguments advanced before me and considered the material on record and also considered the written memorandum of arguments filed by the petitioners. My findings on the various issues are as under:
Ajay @ Abhay (Deceased - Through LRs) Vs. Pinku Pal & Ors. MACT No. 650/2020 Award dated 19.04.2022 Page No. 7 of 32 Issue No.1: Whether the deceased namely Ajay @ Abhay had expired in the road traffic accident which had taken place on 06.08.2020 at about 8:00 PM at TPoint, near Ram Dharam Kanta, Street No. 10, Industrial Area, Anand Parbat, Delhi, on account of rash and negligence driving by vehicle Truck bearing No. RJ 32CB9267 driven by the respondent no.1 Pinku Pal?
(OPP) Issue No.2: Whether the deceased namely Ajay @ Abhay was himself guilty of contributory negligence? (OPR1) (10) Both the issues are clubbed together for the sake of convenience involving common discussion. Onus of proving the issue no.1 was upon the petitioners whereas that of the issue no.2 was upon the respondents no.1 and 2.
(11) The case of the petitioners is that on 06.08.2020 the deceased Ajay @ Abhay was going on a motorcycle make Hero Splender bearing registration No. DL1SX5943 which was being driven by Amit. At about 8:00 PM when they reached at TPoint, New Ram Dharam Kanta, Street No. 10, Industrial Area, Anand Parbat, Delhi the offending truck bearing registration No. RJ32GB9267 driven by the respondent no.1 in a rash and negligent manner came and hit the said motorcycle as a result of which the said motorcycle came under the front wheel of the offending truck and both the riders of the motorcycle fell down on the road and Ajay @ Abhay received fatal injuries. According to the petitioners, the accident in question had taken place on account of the rash and negligence driving of Truck bearing registration No. RJ32GB Ajay @ Abhay (Deceased - Through LRs) Vs. Pinku Pal & Ors. MACT No. 650/2020 Award dated 19.04.2022 Page No. 8 of 32 9267.
(12) On the other hand, the case of the respondents no.1 and 2 is that the respondent no.1 Pinku Pal had parked his vehicle (Truck) bearing registration No. RJ32GB9267 in left side by leaving the road as per traffic rules whereas the deceased Ajay @ Abhay was driving his motorcycle in high speed, rashly and negligently and hit the truck/ vehicle of the respondent no.1 due to which reason the accident took place. It has been alleged that the accident in question had taken place solely due to the rashness and negligence driving of motorcycle bearing No. DL1SX5943 by the deceased Ajay @ Abhay who was a minor at the time of accident.
(13) In order to prove their case the Sh. Praveen Sharma (father of the deceased) has examined himself as his sole witness as PW1 whereas the respondents no.1 and 2 have not examined any witness and stopped appearing before this Court/ Tribunal pursuant to which they were proceeded exparte.
(14) I have considered the arguments advanced before me and perused the record including the DAR and the documents attached along with the same. I have also considered the written memorandum of arguments filed by the petitioners. My findings and observations are as under:
Identity of the respondent no.1 as Driver of the offending vehicle: (15) Coming first to the identity of the respondent no.1 Pinku Pal as the Driver of the offending vehicle i.e. Truck bearing No. RJ32GB Ajay @ Abhay (Deceased - Through LRs) Vs. Pinku Pal & Ors. MACT No. 650/2020 Award dated 19.04.2022 Page No. 9 of 32 9267, I may note that the respondent no.1 Pinku Pal has admitted in his written statement that he was the driver of the Truck bearing No. RJ 32GB9267 and has taken a defence that the accident in question had taken place on account of rash and negligent driving of the deceased himself. This being the background, I hold that the identity of the respondent no.1 Pinku Pal as driver of the offending vehicle i.e. Truck bearing No. RJ32GB9267 stands established.
Rashness and Negligence attributed to the respondent no.1: (16) Now coming to the aspect of Rashness and Negligence, the case of the petitioners who are the parents of the deceased Ajay @ Abhay is that while Amit son of their tenant was driving the motorcycle bearing No. DL1SX5943 and their son namely Ajay @ Abhay was the pillion rider, the accident in question had taken place on account of rash and negligent driving of Truck bearing No. RJ32GB9267 by the respondent no.1 Pinku Pal wherein Ajay @ Abhay had expired. On the other hand, the respondent no.1 has alleged that it was the deceased Ajay @ Abhay who was a minor aged 16 years and was himself driving the motorcycle and the accident in question had taken place on account of the rash and negligent driving of the deceased himself. (17) It is a settled law that a claim before the Motor Accident Claims Tribunal is neither a criminal case nor a civil case. In a criminal case in order to have conviction, the matter is to be proved beyond reasonable doubt and in a civil case the matter is to be decided on the Ajay @ Abhay (Deceased - Through LRs) Vs. Pinku Pal & Ors. MACT No. 650/2020 Award dated 19.04.2022 Page No. 10 of 32 basis of preponderance of evidence but in a claim before the Motor Accidents Claims Tribunal, the standard proof is much below than what is required in a criminal case as well as in a civil case. No doubt before the Tribunal there must be some material on the basis of which the Tribunal can arrive or decide things necessary to be decided for awarding compensation. In a criminal case the rashness and negligence against the accused has to be proved beyond reasonable doubt whereas in a civil case or MACT claim for grant of compensation the principle involved is preponderance of probability. It would be sufficient if the surrounding circumstances and the material on record establishes the allegations of rashness and negligence made against the driver of the offending vehicle.
(18) I have considered the rival contentions and I may note that the present case has been registered on the basis of statement of Amit S/o Mani Ram who is the son of the tenant of the petitioners. In his statement Amit had stated that it was Ajay @ Abhay who was driving the motorcycle at the time of accident and when they reached Ram Dharam Kanta, T Point Gali No.10, Anand Parbat, Delhi a truck bearing No. RJ32GB9267 was stationed on the left side of the road and when Ajay @ Abhay tried to pass his motorcycle from the right side of the truck, the driver of the truck drove the truck towards its right side as a result of which their bike hit the truck and he fell down whereas Ajay @ Abhay got struck under the truck after which the truck driver dragged the motorcycle for about 20 meters and then hit another scooty.
Ajay @ Abhay (Deceased - Through LRs) Vs. Pinku Pal & Ors. MACT No. 650/2020 Award dated 19.04.2022 Page No. 11 of 32 According to Amit, the public persons gathered at the spot and apprehended the driver of the truck whose name was later on revealed as Pinku Pal.
(19) I may further note that as per the chargesheet, copy of which is placed on record, the Investigating Officer had examined an eye witness to the accident namely Azim Ahmed S/o Yasin who informed the IO that on 06.08.2020 at about 8:00 PM while he was sitting on a Takhat at Tempo Stand, Gali No.10, Ram Dharam Kanta, Industrial Area, Anand Parbat, Delhi he saw that a truck was coming from the slope of T Point which truck first hit a motorcycle, dragged the same to some distance and then hit his scooty bearing No. DL6SN4423 and thereafter stopped after hitting a Chabutra. The relevant portion of the statement of Azim Ahmed recorded under Section 161 Cr.P.C. is reproduced as under:
".... Dinank 06.08.2020 ko samay karib 8:00 PM par Gali No. 10, Ram Dharam Kanta, Industrial Area, anand Parbat, Delhi tempo Stand ke takhat par baitha tha or apni scooty ko stand ke paas dhalan ki taraf ke pas side me khadi kar rakhi thi. Jo isi dauran ek truck T point dhlan ki taraf se ek motorcycle wale ko hit kiya va motorcycle ko ghaseettay huey meri scooty DL7SN4423 ko bhi damage kar diya. Maine takhat se bhaggh kar apni jaan bachai or truck no. RJ32GB9267 chabutre se takra kar ruk gya or motorcycle No. DL1SX5943 va scooty dono truck ke niche fans gyi. Yeh accident truck uprokt ke chalak ne tez raftari gaflat laparwahi se chalakar kiya hai or maine anya logon ki madad se truck chalak ko Ajay @ Abhay (Deceased - Through LRs) Vs. Pinku Pal & Ors. MACT No. 650/2020 Award dated 19.04.2022 Page No. 12 of 32 moka par hi pakad liya tha jiska naam baad puchtach Pinku Pal S/o Nathu Lal R/o Vill. Ram Marhya, PS Pachdevra, Distt. Hardoi, UP maloom hua va public ki madad se injured Ajay @ Abhay Sharma ko uthakar dekha juiske muh va naak se khoon nikal raha tha ko private auto me baithakar hospital bhej diya tha. Uske sath ek or ladka tha veh bhi auto me his hospital chla gya tha..".
(20) Though the witness Nazim Ahmed has not been examined before this Tribunal/ Court yet a judicial notice of the same can be taken particularly when the circumstantial evidence on record corroborates his version. The copy of the chargesheet filed along with the DAR shows that apart the scooty of Nazim Ahmed bearing No. DL7SN4423 was also taken into possession and seized.
(21) The Mechanical Inspection Report of the Motorcycle bearing No. DL1SX5943 reflect the following fresh damages:
1. Tail light and rear side body broken.
2. Rear both side indicator light broken.
3. Left rear side shocker bended.
4. Rear both side body broken.
5. Left side both foot rest and both stand damaged.
6. Petrol tank damaged.
7. Gear lever bended.
8. Right side petrol tank damaged.
9. Right side frame body part scratched.
Ajay @ Abhay (Deceased - Through LRs) Vs. Pinku Pal & Ors. MACT No. 650/2020 Award dated 19.04.2022 Page No. 13 of 32
10.Handle bent.
11.Head light and speedometer broken.
(22) Further, the Mechanical Inspection Report of the Honda Active Scooty bearing No. DL6SN4423 reflect the following fresh damages:
1. Front side body damaged.
2. Front inside body broken.
3. Head light and speedometer broken.
4. Rear both side body damaged.
5. Center side body broken.
6. Front frame damaged and dislocated.
7. Chamber damaged.
8. Silencer damaged & dislocated.
9. Front mudguard dented and bended.
(23) Now coming to the Mechanical Inspection Report of the offending Truck bearing No. RJ32GB9267 shows that there were following fresh damages:
1. Front lower side bodyguard scratched.
2. Front side number plate bended.
3. Front bumper left side dented and scratched.
(24) The above Mechanical Inspection Reports confirm and corroborate the version of eye witness Nazim Ahmed who is an Ajay @ Abhay (Deceased - Through LRs) Vs. Pinku Pal & Ors. MACT No. 650/2020 Award dated 19.04.2022 Page No. 14 of 32 independent witness and not related to the victim of his family in any manner. The said Mechanical Inspection Reports confirm that the offending vehicle i.e. Truck bearing No. RJ32GB9267 not only hit the motorcycle of the deceased but also hit another scooty bearing No. DL6SN4423. The corresponding damages to the offending truck i.e. dent on Front bumper of left side show after hitting and dragging the motorcycle as well as the scooty, the offending truck then hit a Chabutra and stopped.
(25) Further, the photographs of the accidental site were clicked/ taken by the initial Investigating Officer which are on record. The said photographs reveal the presence of the Chabutra and also the presence of motorcycle and scooty under the front left side tyre. The dragging marks are also visible in the photographs (Ex.PW1/3 collectively). Also, the blood was also found lying at the spot and the registration number of the truck and registration number of the scooty are clearly visible in the said photographs.
(26) The respondent no.1 Pinku Pal has taken a defence that the deceased Ajay @ Abhay was a minor aged 16 years and was driving his motorcycle rashly and negligently. On the other hand case of the petitioners is that it was Amit son of their landlord who was driving the motorcycle at the time of accident. In this regard, I may observe that it stands established from the FIR registered on the basis of statement of Amit that the deceased Ajay @ Abhay was himself driving the motorcycle at the time of accident and he (Amit) was the pillion rider Ajay @ Abhay (Deceased - Through LRs) Vs. Pinku Pal & Ors. MACT No. 650/2020 Award dated 19.04.2022 Page No. 15 of 32 and it is for this reason that Ajay @ Abhay sustained fatal injuries whereas Amit fell down and escaped. However, the circumstantial evidence on record in the form of Mechanical Inspection Reports, photographs of the spot of accident and statements of the eye witnesses recorded under Section 161 Cr.P.C. confirm the following aspects:
1. That on 08.06.2020 Ajay @ Abhay was driving the motorcycle whereas Amit was the pillion rider.
2. That when they reached Ram Dharam Kanta, T Point Gali No.10, Anand Parbat, Delhi a truck bearing No. RJ32GB 9267 was stationed on the left side of the road.
3. That when Ajay @ Abhay tried to overtake from the right side of the truck, the driver of the truck drove the truck towards its right side as a result of which the motorbike was hit by the truck.
4. That Amit fell down whereas Ajay @ Abhay got struck under the truck after which the truck driver dragged the motorcycle for about 20 meters.
5. That the offending truck then hit another scooty bearing No. DL6SN4423 belonging to Azim Ahmed.
6. That thereafter the truck hit a Chabutra and stopped.
7. That the public persons gathered at the spot and apprehended the driver of the truck whose name was revealed as Pinku Pal.
Ajay @ Abhay (Deceased - Through LRs) Vs. Pinku Pal & Ors. MACT No. 650/2020 Award dated 19.04.2022 Page No. 16 of 32 (27) The sequence of events as above, speaks about the rashness and negligence so attributed to the respondent no.1 Pinku Pal. Though the deceased Ajay @ Abhay was a minor at the time of accident, yet there was no negligence on his part, rather it was the respondent no.1 Pinku Pal who was solely responsible for the accident in question. (28) In the present case it is apparent from the circumstantial evidence on record i.e. Mechanical Inspection Reports of the offending Truck, Motorcycle & Scooty; photographs of the spot of accident and the statements of eye witness recorded by the IO clearly establish the rashness and negligence so attributed to the respondent no.1 Pinku Pal. (29) By application of the principles of Preponderance of Probability, I hereby hold that the respondent no.1 Pinku Pal was negligent in driving the truck RJ32GB9267.
Nature of Injuries caused to the deceased:
(30) Now coming to the aspect of injuries caused to the deceased Ajay @ Abhay. I have gone through the copy of MLC of Ajay @ Abhay prepared at Jeewan Mala Hospital which shows that the injured Ajay (Abhay) was brought to the hospital on 06.08.2020 at 8:20 PM by Amit with alleged history of Road Traffic Accident as told by "Brought By" Amit. After examination the patient was declared Brought Dead at 8:28 PM. Further, I have also gone through the photocopy of the postmortem report of the deceased according to which the cause of death has been opined as Brain damage consequent upon blunt force trauma to head, all injuries are antemortem in nature, caused by blunt Ajay @ Abhay (Deceased - Through LRs) Vs. Pinku Pal & Ors. MACT No. 650/2020 Award dated 19.04.2022 Page No. 17 of 32 force trauma, fresh in duration and are possible in road traffic accident. The factum of death of the deceased Ajay @ Abhay has not been disputed by the respondents nor any evidence to the contrary has come on record.
(31) In view of the above and coupled with the fact that the respondent no.1 Pinku Pal has been made an accused in FIR No. 188/2020, PS Anand Parbat under Section 279/304A wherein he has been arrested, I hereby hold that Ajay @ Abhay had expired on account of the injured sustained by him in a road traffic accident which took place on 06.08.2020 at 8:00 PM at TPoint, near Ram Dharam Kanta, Gali No. 10, Industrial Area, Anand Parbat, Delhi on account of rash and negligent driving of truck bearing No. RJ32GB9267 by the respondent no.1 Pinku Pal.
(32) Both the issue no.1 and issue no.2 are disposed off accordingly.
Issue No.3: Whether the LRs of deceased Ajay @ Abhay are entitled to any compensation? If yes, to what extent and from whom? (OPP) (33) Onus of proving the above issue was upon the petitioners. The case of the petitioners is that the deceased Ajay @ Abhay was a young 16 years boy whose date of birth is 14.07.2004 and he had passed his 10th class examination and was providing tuitions to small children and was earning about Rs.8,000/ per month. It is also the case of the petitioners that both the petitioners were partly dependent upon their Ajay @ Abhay (Deceased - Through LRs) Vs. Pinku Pal & Ors. MACT No. 650/2020 Award dated 19.04.2022 Page No. 18 of 32 deceased son and due to the unfortunate accident the petitioners have lost the present, past and future income of the deceased. The case of the petitioners is that the respondent no.1 to 3 i.e. driver, owner and Insurance Company of the offending vehicle are liable to pay a compensation of Rs.60,00,000/ alongwith interest @ 18% per annum. (34) In so far as the respondent no.3 Universal Sompo General Insurance Co. Ltd. is concerned, no written memorandum of arguments have been filed on its behalf nor the counsel for the Insurance Company had appeared at the time of final arguments. Therefore, this Court/ Tribunal is proceeding on the basis of the material on record. (35) At the very Outset I may observe that the date of birth of the deceased is 14.07.2004 and hence, at the time of accident on 06.08.2020 he was 16 years of age. The Hon'ble Delhi High Court has in the case of Chetan Malhotra Vs. Lala Ram reported in II (2016) ACC 896 (Del.) formulated the guidelines for grant of compensation in case of death of children and held as under:
"..... 71. Subject to all other requisite conditions being fulfilled, for the foregoing reasons, in order to bring about consistency and uniformity in approach to the issue, it is held that claims for compensation on account of death of children shall be determined as follows :
(i). Till such time as the law is amended by the legislature, or the Central Government notifies the amendment to the Second Schedule in exercise of the enabling power vested in it by Section 163A (3) of the Motor Vehicles Act, 1988, and except in cases wherein the prospects of employability and earnings (in future or present) of the deceased child are proved by cogent and Ajay @ Abhay (Deceased - Through LRs) Vs. Pinku Pal & Ors. MACT No. 650/2020 Award dated 19.04.2022 Page No. 19 of 32 irrefutable evidence, this having regard, inter alia, to the academic record or training in special talents or skills, for computing the pecuniary damages on account of the loss to estate, the notional income of nonearning persons (Rs.15000/ p.a.) as specified in the Second Schedule (brought in force from 14.11.1994), shall be assumed to be the income of the deceased child, and taken into account after it is inflation corrected with the help of Cost Inflation Index (CII) as notified by the Government of India from year to year under Section 48 of the Income Tax Act, 1961, by applying the formula indicated hereinafter.
(ii) For inflationcorrection, the financial year of 1997 1998 shall be treated as the "base year" and the value of the notional income relevant to the date of cause of action shall be computed in the following manner : 15,000/ x A ÷331 [wherein the figure of 'Rs.15,000' represents the notional income specified in the second schedule requiring inflationcorrection; A represents the CII for the financial year in which the cause of action arose (i.e. the accident / death occurred); and the figure of 331 represents the CII for the base year]
(iii). After arriving at an appropriate figure of the present equivalent value of the notional income (i.e. inflation corrected amount), it shall be rounded off to a figure in next thousands of rupees.
(iv). The amount of notional income thus calculated shall be reduced to twothird, the deduction to the extent of one third being towards personal & living expenses of the deceased, the balance taken as the annual loss to Ajay @ Abhay (Deceased - Through LRs) Vs. Pinku Pal & Ors. MACT No. 650/2020 Award dated 19.04.2022 Page No. 20 of 32 estate (hereinafter also referred to as "the multiplicand").
(v). For assessment of the pecuniary damages on account of the death of children upto the age of 10 years, the loss to estate shall be calculated, capitalizing the multiplicand, by applying the multiplier of ten (10).
(vi). For children of the agegroup of more than 10 years upto 15 years, the loss to estate shall be calculated by applying the multiplier of fifteen (15).
(vii). For children of the agegroup of more than 15 years but less than 18 years, the loss to estate shall be calculated by applying the multiplier of eighteen (18).
(viii). After the pecuniary loss to estate has been worked out in the manner indicated above, an amount equivalent to the amount thus computed shall be added to it as the composite nonpecuniary damages taking care of not only the conventional heads but also towards future prospects as awarded in R.K. Malik v. Kiran Pal (2009) 14 SCC 1.
(ix). The final sum thus arrived at, appropriately rounded off, if so required to the nearest (if not next) thousands of rupees, shall be awarded as compensation for the death of the child.....".
(36) Here, I may note that during the course of arguments. ld. Counsel for the petitioner has submitted that he has no objection if the Cost Inflation Index (CII) of the year 20162017 i.e. 1125 is considered while calculating the compensation int eh present case. This being the background, the Cost Inflation Index (CII) for the financial Ajay @ Abhay (Deceased - Through LRs) Vs. Pinku Pal & Ors. MACT No. 650/2020 Award dated 19.04.2022 Page No. 21 of 32 year 201617 @ 1125 shall be considered to compute the compensation in terms of the observations made in the case of Chetan Malhotra Vs. Lala Ram (Supra).
(37) It is an admitted case of the petitioners that the deceased Ajay @ Abhay was aged 16 years at the time of accident. Therefore, by applying the directions issued in the case of Chetan Malhotra Vs. Lala Ram (Supra) the multiplier of Eighteen (18) would be applicable. (38) Coming now to the Inflation Corrected Notional Income of the deceased which is calculated as under:
Rs.15,000 X 1125 / 331 = Rs.50,981/ Round off: Rs.51,000/ (39) By applying the multiplier of 18 and 1/3 rd deductions of the notional income towards personal living expenses, the pecuniary loss to the estate is calculated as under:
Rs.51,000 X 2/3 X 18 = Rs.6,12,000/ (40) An equivalent amount being added towards composite non pecuniary damages, the total compensation comes to Rs.12,24,000/ (Rs.6,12,000 X 2 = 12,24,000).
(41) I may note that interest @ 9% per annum was awarded by the Hon'ble Apex Court in the case of Municipal Corporation of Delhi Vs. Association of Victims of Uphaar Tragedy reported in 2012 ACJ 48 (SC). In the interest of justice, it is held that claimant shall be entitled to interest @ 6% per annum from the date of filing of the DAR i.e. from 16.12.2020 till realization.
Ajay @ Abhay (Deceased - Through LRs) Vs. Pinku Pal & Ors. MACT No. 650/2020 Award dated 19.04.2022 Page No. 22 of 32 Apportionment:
(42) As per the DAR, there are two Legal Heirs of the deceased Ajay @ Abhay i.e. Praveen Sharma (Father) and Smt. Parvesh (Mother).
However, when the Financial Statement of the petitioner Praveen Sharma was recorded it was revealed that he had two unmarried sons namely Rishabh Sharma and Prateek Sharma who are the elder brothers of the deceased and as on date they are earning. Therefore, I hold that the entire awarded amount shall be given to the parents of the deceased in equal proportions. For the sake of convenience, the individual shares of the petitioners are tabulated as under:
Sr. Name of the claimant Relation with Percentage of Amount in No. deceased award amount (Rs.) 1 Smt. Parvesh Mother 50% 6,12,000/ 2 Praveen Sharma Father 50% 6,12,000/ Disbursement:
(43) The Financial Statement of Sh. Parveen Sharma (father of the deceased) was recorded on 28.03.2022 according to which his family consists of himself, his wife and two unmarried sons who are presently employed and earning. According to Parveen Sharma his monthly family expenses are about Rs.30,000/ per month. (44) In view of the above, I hereby direct that in so far as Smt. Parvesh (Mother of the deceased) is concerned on realization of the award amount, a sum of Rs.62,000/ plus half of the interest amount be released to her from her share and the balance amount of Ajay @ Abhay (Deceased - Through LRs) Vs. Pinku Pal & Ors. MACT No. 650/2020 Award dated 19.04.2022 Page No. 23 of 32 Rs.5,50,000/ (Rupees Five Lacs Fifty Thousand only) shall be put in Fifty Five monthly fixed deposits in her name in MACAD account of equal amount of Rs.10,000/ (Rupees Ten Thousand only) each for a period of 01 month to 55 months respectively, with cumulative interest, in terms of the directions contained in FAO No. 842/2003 dated 07.12.2018 & 08.01.2021. Besides the above said amount, amount of FDRs on maturity, shall automatically be transferred in her saving account maintained in a nationalized bank without the facility of cheque book and ATM card. It is clarified that the amount shall be released to her only on submitting the copy of passbook of such saving account with endorsement of the bank that no cheque book facility and ATM card has been issued or if has been issued, same has been withdrawn and same shall not be issued without the prior permission of this Tribunal.
The petitioner no.1 Smt. Parvesh shall have liberty to seek the release of Rs.62,000/ plus half of interest amount from the bank located within the jurisdiction of this Tribunal itself. (45) In so far as the petitioner no.2 Sh. Parveen Sharma (Father of the deceased) is concerned on realization of the award amount, a sum of Rs.62,000/ plus half of the interest amount be released to him from his share and the balance amount of Rs.5,50,000/ (Rupees Five Lacs Fifty Thousand only) shall be put in Fifty Five monthly fixed deposits in his name in MACAD account of equal amount of Rs.10,000/ (Rupees Ten Thousand only) each for a period of 01 month to 55 months respectively, with cumulative interest, in terms of the directions Ajay @ Abhay (Deceased - Through LRs) Vs. Pinku Pal & Ors. MACT No. 650/2020 Award dated 19.04.2022 Page No. 24 of 32 contained in FAO No. 842/2003 dated 07.12.2018 & 08.01.2021. Besides the above said amount, amount of FDRs on maturity, shall automatically be transferred in his saving account maintained in a nationalized bank without the facility of cheque book and ATM card. It is clarified that the amount shall be released to him only on submitting the copy of passbook of such saving account with endorsement of the bank that no cheque book facility and ATM card has been issued or if has been issued, same has been withdrawn and same shall not be issued without the prior permission of this Tribunal. The petitioner no.2 Sh. Parveen Sharma shall have liberty to seek the release of Rs.62,000/ plus half of interest amount from the bank located within the jurisdiction of this Tribunal itself.
(46) The above FDRs shall be prepared with the following conditions as enumerated by the Hon'ble Delhi High Court vide orders dated 07.12.2018 & 08.01.2021 in FAO No. 842/2003 under the title Rajesh Tyagi & Ors. Vs. Jaivir Singh & Ors.:
(i) The bank shall not permit any joint name to be added in the saving account or fixed deposit accounts of the claimants i.e. saving bank accounts of the claimants shall be an individual saving bank account and not a joint account.
(ii) Original fixed deposit shall be retained by the bank in safe custody. However, the statement containing FDR number, FDR amount, date of maturity and maturity amount shall be furnished by bank to the claimants.
(iii) The maturity amount of the FDRs be credited by Ajay @ Abhay (Deceased - Through LRs) Vs. Pinku Pal & Ors. MACT No. 650/2020 Award dated 19.04.2022 Page No. 25 of 32 the ECS in the saving bank account of the claimant near the place of their residence.
(iv) No loan, advance or withdrawal or premature discharge be allowed on the fixed deposits without the permission of the court.
(v) The concerned bank shall not issue any cheque book and/or debit card to claimants. 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. The bank shall debit card(s) freeze the account of claimants so that no debit card be issued in respect of the account of claimants from any other branch of the bank.
(vi) The bank shall make an endorsement on the passbook of the claimant to the effect, that no cheque books and/or debit card have been issued and shall not be issued without the permission of the Court and the claimant shall produced the passbook with the necessary endorsement before the Court for compliance.
(47) In compliance of the directions given by Hon'ble High court in FAO No. 842/2003 dated 07.12.2018 & 08.01.2021, Summary of the Award in the prescribed FormatXV is as under:
SUMMARY OF AWARD:
1. Date of Accident: 06.08.2020
2. Name of the deceased: Ajay @ Abhay
3. Age of the deceased: 16 years
4. Occupation of the deceased: Not Applicable
5. Income of the deceased: Not Applicable Ajay @ Abhay (Deceased - Through LRs) Vs. Pinku Pal & Ors. MACT No. 650/2020 Award dated 19.04.2022 Page No. 26 of 32
6. Name, Age and relationship of legal representatives of deceased:
Sr. No. Name Age Relation
(i) Smt. Parvesh 50 years Mother
(ii) Sh. Parveen Sharma 52 years Father
COMPUTATION OF COMPENSATION
Sr. Head Awarded by the Claims
No. Tribunal
7 Annual Income of deceased (A) Rs.15,000 X 1125 / 331
= Rs.50,981/
Round off: Rs.51,000/
8 Add future prospect (B) .....
9 Less deductions towards personal 1/ 3rd of Rs.51,000/
and living expenses of the deceased
(C)
10 Monthly loss of dependency .....
[(A+B) - C = D]
11 Annual loss of Dependency .....
(D x 12)
12 Multiplier (E) 18 (as per Chetan Malhotra
Vs. Lala Ram)
13 Total loss of dependency .....
DxE=F
14 Medical Expenses (G) .....
15 Compensation for loss of love and .....
affection (H)
16 Compensation for loss of .....
consortium (I)
Ajay @ Abhay (Deceased - Through LRs) Vs. Pinku Pal & Ors. MACT No. 650/2020 Award dated 19.04.2022 Page No. 27 of 32
17 Compensation for loss of Estate (J) Rs.51,000 X 2/3 X 18 = Rs.6,12,000/ 18 Compensation for funeral expenses .....
(K) 19 Total Compensation (F+G+H+I+J Rs.12,24,000/ = L) 20 RATE OF INTEREST 6% AWARDED 21 Interest amount upto the date of Rs.80,163/ award (L) (1 Year, 4 Months and 3 Days) 22 Total amount including interest Rs.13,04,163/ 23 Award amount released As per paragraphs no. 44 & 45 24 Award amount kept in FDRs As per paragraphs no. 44 & 45 25 Mode of disbursement of the award As per paragraphs no. 44 & amount to the claimant(s) 45 26 Next Date of compliance of the 20.05.2022 award Liability:
(48) In so far as the liability to pay the award amount is concerned, since the offending vehicle bearing No. RJ32GB9267 was being driven by respondent no.1 Pinku Pal whereas respondent no.2 Dharambir Singh is the registered owner and the offending vehicle was insured with respondent no.3 Universal Sompo General Insurance Co.
Ltd. therefore all shall be jointly and severally liable to pay Ajay @ Abhay (Deceased - Through LRs) Vs. Pinku Pal & Ors. MACT No. 650/2020 Award dated 19.04.2022 Page No. 28 of 32 compensation to the petitioners but since the vehicle was duly insured with respondent no.3 i.e. Universal Sompo General Insurance Co. Ltd. as on the day of accident, it is respondent no.3 Universal Sompo General Insurance Co. Ltd. who is ultimately held liable to indemnify the insurance and to pay the compensation amount to the petitioner under the statutory liability.
(49) Issue is accordingly decided in favour of the petitioners and against the respondents.
RELIEF:
(50) Since the offending vehicle was insured with the respondent no.3 Universal Sompo General Insurance Co. Ltd. therefore, the respondent no.3 is directed to deposit a sum of Rs.12,24,000/ (Rupees Twelve Lacs, Twenty Four Thousand only) with interest @ 6% per annum from the date of filing of the DAR i.e. 16.12.2020 till realization. The Insurance Company is directed to deposit the award amount or transfer the same by RTGS/NEFT/IMPS to the bank account of the MACT01, State Bank of India, Tis Hazari Courts Complex Branch, Delhi and while making the payment through one of the aforementioned modes, Insurance Company shall also furnish particulars of this case, name of the Tribunal and the date of decision as well. Insurance Company is further directed to submit copy of the award attested by its responsible officer in the bank along with receipt qua depositing/ transferring of award amount. Insurance Company is Ajay @ Abhay (Deceased - Through LRs) Vs. Pinku Pal & Ors. MACT No. 650/2020 Award dated 19.04.2022 Page No. 29 of 32 further directed to place on record proof of deposit of the award amount, proof of delivery of notice to petitioner(s) in respect of deposit of the award amount and complete details in respect of calculation of interest etc., if any, in the Tribunal within 30 days with effect from today failing which insurance company shall be liable to pay interest @ 12% per annum for the period of delay beyond 30 days. (51) A copy of this judgment be sent to the respondent No.3 i.e. Universal Sompo General Insurance Co. Ltd. for compliance within the time granted. Respondent No.3 Universal Sompo General Insurance Co. Ltd. is further directed to give intimation of deposit of the compensation amount to the claimant and shall file a compliance report with the Claims Tribunal with respect to the deposit of the compensation amount within 15 days of the deposit with upto date interest with a copy to the counsel for the claimant namely Sh. Manobal Gupta Advocate (Mobile No. 9310151605). (52) Civil Nazir is directed to place a report on record on 20.05.2022 in the event of nonreceipt/deposit of the compensation amount within the time granted.
(53) File be consigned to Record Room.
Announced in the open Court (Dr. KAMINI LAU)
Dated: 19.04.2022 PO, MACT01, Central District,
Tis Hazari Courts, Delhi
Ajay @ Abhay (Deceased - Through LRs) Vs. Pinku Pal & Ors. MACT No. 650/2020 Award dated 19.04.2022 Page No. 30 of 32 FORM - XVII COMPLIANCE OF THE PROVISIONS OF THE SCHEME TO BE MENTIONED IN THE AWARD 1 Date of Accident 06.08.2020 2 Date of filing of FormI - First Accident Not Applicable being a case of Report (FAR) 2020 3 Date of delivery of FormII to the Not Applicable being a case of victim(s) 2020 4 Date of receipt of FormIII from the Not Applicable being a case of Driver 2020 5 Date of receipt of FormIV from the Not Applicable being a case of Owner 2020 6 Date of filing of the FormV - Interim Not Applicable being a case of Accident Report (IAR) 2020 7 Date of receipt of FormVIA and Form Not Applicable being a case of VIB from the Victim(s) 2020 8 Date of filing of FormVIII - Detail 16.12.2020 Accident Report (DAR) Whether there was any delay or deficiency on the part of the Investigating Officer? If so, whether any action/direction No warranted?
10 Date of appointment of the Designated Officer by the Insurance Company 19.04.2021 11 Whether the Designated Officer of the Insurance Company admitted his report Yes within 30 days of the DAR?
12 Whether there was any delay or deficiency on the part of the Designated Officer of the No Insurance Company? If so, whether any action/direction warranted?
Ajay @ Abhay (Deceased - Through LRs) Vs. Pinku Pal & Ors. MACT No. 650/2020 Award dated 19.04.2022 Page No. 31 of 32 13 Date of response of the claimant(s) to the No legal offer given by the offer of the Insurance Company. Insurance Company 14 Date of award 19.04.2022 15 Whether the claimant(s) were directed to open savings bank account(s) near their Yes place of residence?
16 Date of order by which claimant(s) were 16.12.2020 directed to open Savings Bank Account(s) near his place of residence and produce PAN card and Aadhaar Card and the direction to the bank not to issue any cheque book/debit card to the claimant(s) and make an endorsement to this effect on the passbook(s).
17 Date on which the claimant(s) produced On 18.03.2022 their PAN Cards the passbook of their savings bank bearing No. BRUPP62132Q & account(s) near the place of their residence NIPPS2535L, Aadhar Cards and alongwith the endorsement, PAN card and copies of Bank PassBook with Aadhaar Card? necessary endorsements were produced.
18 Permanent residential address of the As per Award claimant(s).
19 Whether the claimant(s) savings bank Yes account(s) is near their place of residence?
20 Whether the Claimant(s) were examined at Yes, the Financial Statement of the the time of passing of the Award to petitioner was recored on ascertain his/their financial condition? 28.03.2022 (Dr. KAMINI LAU) PO, MACT01 (Central), Tis Hazari Courts, Delhi/ 19.04.2022 Ajay @ Abhay (Deceased - Through LRs) Vs. Pinku Pal & Ors. MACT No. 650/2020 Award dated 19.04.2022 Page No. 32 of 32