Delhi District Court
Jyoti Pal And Others Lrs Of Deceased ... vs Rais on 22 May, 2024
MACP No. 448/21; FIR No. 713/21; PS. Alipur DOD: 22.05.2024
IN THE COURT OF MS. RICHA MANCHANDA, PRESIDING
OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNAL,
NORTH DISTRICT, ROHINI COURTS, DELHI
MAC Petition No. 448/21
UID/CNR No. DLNT01-009602-2021
1. Smt. Jyoti Pal,
W/o Late Sh. Mahesh Pal,
(Widow of deceased)
2. Mayank,
S/o Late Sh. Mahesh Kumar,
(Minor son of deceased)
3. Sh. Suraj Bhan,
S/o Late Sh. Chand,
(Father of deceased)
4. Smt. Jagwati,
W/o Sh. Suraj Bhan,
(Mother of deceased)
All R/o H.No. 197,
Village Khampur,
New Delhi. ..........Petitioners
VERSUS
1. Rais,
S/o Habib Khan,
R/o Village Behata Jabi,
Post Pusangus,
District Badaun,
UP.
(Driver)
Jyoti Pal & Ors. Vs. Rais & Ors. Judge MACT 02(North) Page 1 of 33
MACP No. 448/21; FIR No. 713/21; PS. Alipur DOD: 22.05.2024
2. Smt. Poonam,
W/o Sh. Pushpender,
R/o H.No. 85,
Friends Colony,
Sultanpuri,
Delhi.
(Registered owner)
3. Go Digit General Insurance Ltd.
Business Centre, 5th Floor,
B-Wing, IFCI Tower 61,
Nehru Place, Delhi.
(Insurer) ............Respondents
Date of Institution : 22.12.2021
Date of Arguments : 22.05.2024
Date of Judgment : 22.05.2024
APPEARENCE(S):
Sh. Ajay Kumar, Ld. Counsel for petitioners.
Sh. Narender Singh, Ld. Counsel for driver and owner.
Sh. A.K. Singh, Ld. Counsel for insurance company.
Petition under Section 166 & 140 of M.V. Act, 1988 for grant of compensation AWARD
1. By way of present judgment/award, I shall dispose of the DAR filed by the investigating agency which has been converted into a claim petition under section 166(4) of M. V. Act 1988 for grant of compensation to the petitioners who are Lrs of deceased victim namely Sh. Mahesh Kumar, aged about 40 years in the road accident on 25.08.2021 at about 5:30 PM at Jyoti Pal & Ors. Vs. Rais & Ors. Judge MACT 02(North) Page 2 of 33 MACP No. 448/21; FIR No. 713/21; PS. Alipur DOD: 22.05.2024 Janti Khurd Road, near Ashoka Farm House, Hamidpur, Delhi, involving vehicle i.e. Tata Ace bearing registration no. DL1LS-5503 (alleged offending vehicle) being driven in a rash and negligent manner by its driver (Respondent no.1 herein).
2. The concise material facts relevant to decide the present claim are that on 25.08.2021 at about 5:30 PM, deceased Mahesh Kumar had gone for evening walk at Hamidpur-Janti Road, Delhi. At about 7:20 PM, while returning home from the same road, he reached near Ashoka Farm House then all of a sudden, a Tata Ace vehicle bearing registration no. DL1LS-5503 which was being driven by respondent no. 1 came from Janti side and was going towards Hamidpur, Delhi. The said vehicle was being driven by its driver/Respondent no.1 at a very high speed, in a zigzag manner, as a result of which, he lost control over his vehicle and hit the same against the deceased from backside with massive force and dragged his vehicle on another side of the road and then fled away with his vehicle from the spot. Due to the aforesaid forceful impact, deceased sustained multiple severe injuries on his head and other parts of the body. He was immediately taken to SRHC Hospital by PCR Van, where he was declared 'brought dead'. Postmortem of the deceased was conducted at BJRM Hospital, Jahangir Puri, Delhi vide PM No. 776/2021. A case U/s 279/304A IPC was registered at PS. Alipur vide FIR No. 713/21 with regard to the accident in question. The petitioners have claimed that the accident has taken place due to rash and Jyoti Pal & Ors. Vs. Rais & Ors. Judge MACT 02(North) Page 3 of 33 MACP No. 448/21; FIR No. 713/21; PS. Alipur DOD: 22.05.2024 negligent driving of aforementioned offending vehicle which was allegedly being driven by respondent no.1/driver. The offending vehicle was found to be owned by respondent no. 2 and was duly insured with respondent no. 3/Go Digit General Insurance Ltd., at the time of accident in question.
3. In their joint written statement, the respondent no.1 & 2 i.e. driver and registered owner have claimed that no accident took place with the vehicle driven by respondent no. 1 and he has been falsely implicated in the criminal case in order to get false compensation in the present case. It has been further claimed that respondent no. 1 was having valid and effective driving licence at the time of accident. It has also been claimed that alleged offending vehicle was insured with respondent no. 3 at the time of accident and thus, they are not liable to pay any compensation to the petitioners. On the basis of these averments, prayer for dismissal of present DAR has been made.
4. In its Written Statement, the respondent no. 3 i.e. insurance company has not raised any statutory defence as provided in Section 149(2) of M.V. Act. It has been claimed that there was not any eyewitness to the alleged accident. However, it has been admitted that offending vehicle was insured with it at the time of accident.
Jyoti Pal & Ors. Vs. Rais & Ors. Judge MACT 02(North) Page 4 of 33MACP No. 448/21; FIR No. 713/21; PS. Alipur DOD: 22.05.2024
5. From the pleadings of the parties and the documents, following issues were framed vide order dated 26.07.2022:-
1) Whether the deceased Mahesh Kumar, S/o Shri Suraj Bhan, suffered fatal injuries in road traffic accident on 25.08.2021, between 7:00 PM to 7:20 PM, on Janti Khurd Road, near Ashoka Farm, Hamidpur, Delhi, within the jurisdiction of PS. Alipur due to rashness and negligence on the part of driver Rais Ahmad/R-1, who was driving Tata Ace truck bearing registration no. DL1LS-5503, owned by Smt. Poonam W/o Sh. Pushpender/R-2 and insured with M/s. Go Digit General Insurance Ltd.?OPP.
2) Whether the LRs of deceased are entitled to any compensation if so to what amount and from whom?
OPP.
3) Relief.
6. To substantiate their claim, petitioners have examined six witnesses i.e. Smt. Jyoti Pal (widow of deceased) as PW-1, PW-2 Sh. Mukesh Kumar, PW-3 Sh. Raj Kumar, PW-4 Sh. Aseen, PW-5 Sh. Jagdish Chander Singhal and PW-6 Sh. Nishant and closed their evidence on 14.08.2023. PW-1 & PW-3 deposed on the lines of averments made in the DAR, resulting into fatal injury causing death of the deceased. In defence, no evidence was adduced by any of the respondents and their respective evidence was closed vide order dated 09.01.2024.
7. This Tribunal has carefully perused DAR, evidence led by petitioners has been duly appreciated. All documents and material relied upon Jyoti Pal & Ors. Vs. Rais & Ors. Judge MACT 02(North) Page 5 of 33 MACP No. 448/21; FIR No. 713/21; PS. Alipur DOD: 22.05.2024 perused and considered. Arguments addressed by counsels for the petitioners and insurance company considered. Legal position, both statutory and binding applicable precedents, has been appreciated. The issue wise determination is as under:-
ISSUE NO. 18. For the purpose of this issue, the testimony of PW3 Sh. Raj Kumar (alleged eyewitness) is relevant. He deposed in his evidence by way of affidavit (Ex. PW3/A) on the lines of averments made in the DAR. He has relied upon copy of his Aadhaar Card Ex. PW3/1 and copy of complaints given by him to the police official Ex. PW3/2.
9. PW3 in his testimony by way of affidavit (Ex. PW3/A) has deposed that on 25.08.2021 in the evening, he had gone for a walk at Hamidpur-Janti Road, Delhi. He further deposed that on the same day at about 7:20 PM, while walking, when he reached about 250m away from Ashoka Farm House, situated at Hamidpur-Janti Road, Delhi, he noticed that one person was also coming walking on foot from the side of Village Janti and was going towards Village Hamidpur, Delhi. He further deposed that the said person was walking on the extreme left side of the road. He further deposed that when the said person reached in front of Ashok Farm House, a Tata Ace vehicle no. DL1LS-5503 came from Village Janti side and was going towards Village Hamidpur, Delhi. He further deposed that the driver of Jyoti Pal & Ors. Vs. Rais & Ors. Judge MACT 02(North) Page 6 of 33 MACP No. 448/21; FIR No. 713/21; PS. Alipur DOD: 22.05.2024 said vehicle was driving his vehicle at a very high speed, in a zigazag, rash and negligent manner. He further deposed that while driving the offending vehicle in such a dangerous manner, its driver lost control and hit the said person from behind with massive force and thereafter, its driver dragged said vehicle on another side of the road and then fled away with said Tata Ace from the spot. He further deposed that he tried to chase the driver of the aforesaid vehicle but he escaped from the spot. He further deposed that on 30.08.2021, he alongwith Mr. Mukesh Kumar S/o Sh. Suraj Bhan had visited the spot again. He further deposed that he also noticed that CCTV cameras were installed at the gate of said Ashoka Farm, Hamidpur-Janti Road, Delhi. He further deposed that thereafter, they met with the owner of aforesaid Ashoka Farm and seen the relevant part of CCTV Footage of the accident. He further deposed that at that time, Mr. Mukesh Kumar also recorded such relevant CCTV footage (directly from or off the CCTV screen) in his mobile phone. He further deposed that in the said CCTV footage also, it is clearly seen how the respondent no. 1 while driving the offending vehicle dangerously in a gross and negligent manner had hit the deceased Mahesh Kumar from behind great force.
10. During his cross-examination on behalf of driver and owner, he admitted that accident in question had occurred in his presence. He deposed that at time of accident in question, he was doing evening walk at the place of accident and he was alone at that time. He further deposed that after the Jyoti Pal & Ors. Vs. Rais & Ors. Judge MACT 02(North) Page 7 of 33 MACP No. 448/21; FIR No. 713/21; PS. Alipur DOD: 22.05.2024 accident, the people of nearby village were also gathered there. He deposed that he did not make a call to the police regarding the accident. He volunteered that at the time of accident, he was not having his mobile phone with him. He further deposed that after the accident, he borrowed mobile phone of someone else and called his father to inform about the accident and asked him to inform the same to the family of deceased. He deposed that the residence of deceased was at a distance of three galies from his house. He deposed that he was not related to deceased. He admitted that he knew the deceased previously because he was inhabitant of his village. He deposed that he remained at the spot of accident about 15 minutes and after arrival of police, he went to Satyawadi Raja Harish Chander Hospital with deceased in PCR. He further deposed that after information regarding the accident in question, three police officials had reached at the spot. He further deposed that he remained in the hospital about an hour after that he reached to the spot along with police officials. He deposed that after reaching the hospital, the family members of deceased had also arrived there. He admitted that no family member of the deceased accompanied with police to the spot. He deposed that when they again reached the spot with police, no public persons was there but some police officials were already present there. He deposed that he reached the spot again at about 9 or 9.30 pm and remained there hardly about 10-15 minutes. He deposed that only one or two persons were there at the spot. He further deposed that police did not make any inquiry with those person regarding the accident at that time in his presence. He Jyoti Pal & Ors. Vs. Rais & Ors. Judge MACT 02(North) Page 8 of 33 MACP No. 448/21; FIR No. 713/21; PS. Alipur DOD: 22.05.2024 further deposed that the IO did not make any document at the spot in his presence. He further deposed that after 10 minutes thereof, he went to PS with police. He further deposed that police did not record his statement. He deposed that he remained at PS for about 2 or 2 ½ hours. He deposed that some of the family members of the deceased had also came to the PS at that time and the police did not record their statement in his presence. He further deposed that he along with police kept on searching the offending vehicle whole night. He further deposed that the offending vehicle could not be traced at that time. He deposed that he did not remember the name of policeman who was there with him. He further deposed that they were in Dzire car which was belonging to his nephew, however, he did not remember its registration number that time. He denied the suggestion that the accident did not take place within his sight. He further denied the suggestion that he had not gone to the hospital along with the deceased. During his cross- examination on behalf of insurance company, he deposed that Jatti Khurd and Hamidpur were not on the same road. He denied the suggestion that at the time of accident, he was on the Hamidpur Road and did not take turn towards Jatti Khurd road. He further denied the suggestion that he was not at the spot of accident at the time of accident. He denied the suggestion that he had not seen the accident. He admitted that offending vehicle had not been apprehended at the spot. He denied the suggestion that he had falsely implicated the offending vehicle because of his professional jealousy with the respondent no. 2 (owner). He denied the suggestion that the accident had not Jyoti Pal & Ors. Vs. Rais & Ors. Judge MACT 02(North) Page 9 of 33 MACP No. 448/21; FIR No. 713/21; PS. Alipur DOD: 22.05.2024 taken place due to the negligence of respondent no. 1, driver.
11. The careful perusal of testimony of aforesaid witness i.e. PW3 would go to show that respondents have not been able to impeach his testimony through litmus test of cross-examination, he being cross-examined at length by the counsels for respondents. On the other hand, respondents have not examined any witness in order to rebut the testimony of PW3 during the course of inquiry. Hence, there is no reason to disbelieve his uncontroverted testimony on the point of accident in question being caused by respondent no. 1 while driving the offending vehicle. Hence, there is no possibility of any false implication of driver of offending vehicle or false involvement of the said vehicle in this case. Furthermore, said FIR is shown to have been registered on 26.08.2022(accident being caused on 25.08.2022 at about 5:30 PM). Thus, there is no possibility of false implication of respondent no. 1 and / or false involvement of offending vehicle at the instance of the petitioners.
12. During the arguments, Ld. Counsel for petitioners heavily relied upon criminal case record (which is part of DAR) in support of case of petitioners in order to bring home that the accident in question had taken place due to the rash and negligent driving of offending vehicle i.e. Tata Ace bearing Registration No. DL1LS-5503, by its driver/respondent no. 1. It has been contended that respondent no. 1 Sh. Rais Ahmad was also Jyoti Pal & Ors. Vs. Rais & Ors. Judge MACT 02(North) Page 10 of 33 MACP No. 448/21; FIR No. 713/21; PS. Alipur DOD: 22.05.2024 chargesheeted by police for offences punishable U/s 279/304A IPC, which clearly establishes that the accident had taken place due to rash and negligent driving of offending vehicle by respondent no. 1. Per contra, it is contended on behalf of insurance company that PW3 is not an eyewitness of the accident, as such his testimony should not be considered on this issue.
13. The facts of the case, arguments of the Ld. Counsels, evidence, material on record and duly verified documents of the criminal case, have been carefully examined and scrutinized. Respondent no. 1 namely Rais Ahmad has been charge sheeted for offences punishable U/s. 279/304A IPC by the investigating agency after arriving at the conclusion on the basis of investigation carried out by it that the accident in question has taken place due to rash and negligent driving of offending vehicle.
14. The rash and negligent driving of the offending vehicle may be proved, either by direct evidence or by circumstances including principle of res-ipsa loquitur. Further, it has not been disputed by any of the parties that the owner of the offending vehicle (Tata Ace) has disclosed pursuant to the notice U/s 133 of M. V. Act that at the time of alleged accident, the respondent no. 1/driver of the offending vehicle was driver of the said vehicle. It is also an undisputed fact that FIR No. 713/21 u/s 279/304A IPC was registered at PS. Alipur with regard to accident in question.
Jyoti Pal & Ors. Vs. Rais & Ors. Judge MACT 02(North) Page 11 of 33MACP No. 448/21; FIR No. 713/21; PS. Alipur DOD: 22.05.2024
15. It is pertinent to note that the respondent no.1/driver of offending vehicle was the other material witness to throw light by testifying as to how and under what circumstances, the accident has taken place. However, he has preferred not to enter into the witness box. Thus, an adverse inference is liable to be drawn against him to the effect that the accident in question has taken place due to rash and negligent driving of the offending vehicle by the respondent no. 1. There is nothing on record to show that the petitioners had any enmity with the driver of the offending vehicle so as to falsely implicate him in this case. Reliance placed on Cholamandalam MS General Insurance Co. Ltd. V. Kamlesh & Ors, MAC APP. No. 530/2008 passed by Hon'ble Delhi High Court on 11.11.2008.
16. Copy of MLC of deceased filed would show that after the accident, he was taken to SRHC Hospital, Narela, Delhi with alleged history of RTA on 25.08.2021 at 8:15 pm. He is shown to have sustained multiple injuries as mentioned therein. Not only this, postmortem was got conducted on the body of deceased. The copy of PM Report (which is part of DAR) of deceased, would show that cause of death of deceased was opined due to craniocerebral damage as a result of blunt force impact. All injuries were ante-mortem in nature and possible in manner as alleged. The external injuries as mentioned in the relevant column correspond with the injuries which occur in Motor Vehicular Accident. These documents have not been disputed from the side of respondents.
Jyoti Pal & Ors. Vs. Rais & Ors. Judge MACT 02(North) Page 12 of 33MACP No. 448/21; FIR No. 713/21; PS. Alipur DOD: 22.05.2024
17. In view of the aforesaid discussion and the evidence which has come on record, it is held that the petitioners have been able to prove on the basis of preponderence of probabilities that Sh. Mahesh Kumar had sustained fatal injuries in road accident which took place on 25.08.2021 at about 5:30 PM at Janti Khurd Road, near Ashoka Farm House, Hamidpur, Delhi, due to rash and negligent driving of Tata Ace bearing registration no. DL1LS-5503 by respondent no.1. Thus, issue no. 1 is decided in favour of petitioners and against the respondents.
ISSUE NO. 218. The petitioners who are claimants are the widow, minor children and parents of deceased. It is evident that the petitioners have actually suffered monetary loss and mental agony due to death of deceased. Accordingly, petitioners are entitled for just and fair compensation in the present case.
19. Section 168 of the Motor Vehicle Act 1988 enjoins upon the Claims Tribunal to hold an inquiry into the claim to make an award determining the amount of compensation which appears to it to be just and reasonable. The guiding principles for assessment of "just and reasonable compensation" in fatal case has been laid down by Hon'ble Supreme Court of India, in case titled as Smt. Anjali & Ors., Vs. Lokendra Rathod & Ors, in Civil Appeal No. 9014 of 202, decided on 06.12.2022 that: -
Jyoti Pal & Ors. Vs. Rais & Ors. Judge MACT 02(North) Page 13 of 33MACP No. 448/21; FIR No. 713/21; PS. Alipur DOD: 22.05.2024 "The provisions of the Motor Vehicles Act, 1988 (for short, "MV Act") gives paramount importance to the concept of 'just and fair' compensation. It is a beneficial legislation which has been framed with the object of providing relief to the victims or their families. Section 168 of the MV Act deals with the concept of 'just compensation' which ought to be determined on the foundation of fairness, reasonableness and equitability. Although such determination can never be arithmetically exact or perfect, an endeavor should be made by the Court to award just and fair compensation irrespective of the amount claimed by the applicant/s. In Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr.3, this Court has laid down as under:
"16."Just compensation" is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well settled principles relating to award of compensation. It is not intended to be a bonanza, largesse or source of profit."
20. The Hon'ble Apex Court has held that the compensation should be just and is not expected to be a windfall or a bonanza nor it should be niggardly or a pittance. Reliance is placed on 2012 (8) SLT 676 titled K. Suresh Vs. New India Assurance Co. Ltd. The aforesaid Principle of law Jyoti Pal & Ors. Vs. Rais & Ors. Judge MACT 02(North) Page 14 of 33 MACP No. 448/21; FIR No. 713/21; PS. Alipur DOD: 22.05.2024 has also been reiterated by a landmark judgment of the Hon'ble Supreme court in 2017 (13) SCALE 12 : 2017 XI AD (SC) 113 titled National Insurance Co. Ltd. Vs. Pranay Sethi and Ors. Accordingly, the quantum of appropriate and adequate compensation to the victim of road accident is to be derived after assessment of various relevant parameters, as per law. Hereinafter, assessment is divided into several criteria, as applicable to the facts of the present case.
LOSS OF DEPENDENCY
21. The claimants/petitioners are the widow, minor son and parents of deceased. PW1 Smt. Jyoti Pal (widow of deceased) has deposed in her evidence by way of affidavit Ex. PW1/A that deceased was aged about 40 years, 3 months and 24 days; he was employed with M/s. Sumeet Corporation as an Office Assistant and was getting monthly salary of Rs. 35,000/- per month at the time of accident. She further deposed that deceased was also the owner of goods vehicle Mahindra Champion bearing registration no. DL1LJ-2100 and the same was used to be driven by his brother namely Sh. Mukesh Kumar who was paid monthly salary by deceased. She deposed that deceased used to give the aforesaid vehicle on hire and from the said business, he used to earn Rs. 20,000/- per month. She further deposed that deceased was graduate and had also passed his LLB degree. She deposed that at the time of accident, deceased was survived by herself as his widow, his minor son and his parents and they all were Jyoti Pal & Ors. Vs. Rais & Ors. Judge MACT 02(North) Page 15 of 33 MACP No. 448/21; FIR No. 713/21; PS. Alipur DOD: 22.05.2024 dependent upon the deceased at the time of accident. She deposed that during his lifetime, deceased was contributing and spending entire income of Rs. 55,000/- per month for the welfare of all his dependants. She has relied upon the following documents:-
Serial Description of documents Remarks
No.
1. Copies of her Aadhaar Card, Ex. PW1/1(colly)
PAN Card, Bank Account
details as well as copies of
Aadhaar Card, Birth
Certificate, Report Card and
fee receipt of minor son of
deceased
2. Copies of Aadhaar Card, PAN Ex. PW1/2(colly)
Card and Bank Passbook of
parents of deceased
3. Copies of Aadhaar Card, PAN Ex. PW1/3(colly)
Card and Driving Licence of
deceased
4. Copies of educational Ex. PW1/4(colly)
documents of deceased i.e.
10th class, 12th class,
Graduation and LLB
Degree/Certificate
5. Copy of salary certificate of Ex. PW1/5
deceased
6. Copies of bank account Mark A
details and bank statement of
deceased
7. Death Certificate of deceased Ex. PW1/6
Jyoti Pal & Ors. Vs. Rais & Ors. Judge MACT 02(North) Page 16 of 33
MACP No. 448/21; FIR No. 713/21; PS. Alipur DOD: 22.05.2024
8. DAR Ex. PW1/7(colly)
9. Copy of application filed Mark B(colly)
seeking further investigation
in case and complete record
10. Copies of seizure memo, Mark C(colly)
fitness, PUCC, Insurance of
Mahindra Champion bearing
registration no. DL1LJ-2100
owned by deceased
22. During cross-examination of PW1 (widow of deceased) on behalf of driver and owner, she admitted that accident in question had not occurred in his presence. She deposed that she came to know about the accident in question and offending vehicle from police officials, Raj Kumar and other villagers. She denied the suggestion that respondent no. 1, driver was not driving the offending vehicle at a very high speed and in a zig zag manner. She further denied the suggestion that respondent no. 1 was never negligent while driving the offending vehicle and the offending vehicle was falsely implicated in the present case. She denied the suggestion that any MCD Toll sticker of the offending vehicle was lying at the spot or that the Raj Kumar or other police official had shifted the deceased to SRHC Hospital from spot. She further denied the suggestion that Raj Kumar narrated anything as mentioned by her in her affidavit to the IO or that he had handed over any toll sticker to the IO. She further denied the suggestion that her brother in law Mr. Mukesh had visited the Ashoka Farm and had seen & collected any CCTV footage of the accident in question. She deposed that Jyoti Pal & Ors. Vs. Rais & Ors. Judge MACT 02(North) Page 17 of 33 MACP No. 448/21; FIR No. 713/21; PS. Alipur DOD: 22.05.2024 personally, she did not have any knowledge about the accident in question. During her cross-examination on behalf of insurance company, she deposed that she was not an eyewitness of the accident in question. She further deposed that father of Raj Kumar (eyewitness) came to her house who informed family about the accident in question. She further deposed that on 25.08.2021, she went to the hospital at about 10 to 10.30 pm where she met with her brother in law and father in law. She further deposed that after reaching the hospital, she saw that Raj Kumar was talking with the police officials. She further deposed that she did not know on what date and time the police officials had taken her family members and Raj Kumar to the spot. She further deposed that her brother in law Mukesh and eyewitness Raj Kumar had gone to the spot on 30.08.2021 when they found the CCTV footage of the accident. She further deposed that she was not present at the time when the video of the CCTV footage was made by her brother in law Mukesh. She denied the suggestion that her family members did not suggest the IO to take the CCTV footage. She admitted that IO had not arrested the respondent no. 1, driver in her presence. She denied the suggestion that IO had not recorded statement of eyewitness Raj Kumar because he had not seen the accident. She denied the suggestion that her husband was not working with M/s Sumeet Corporation and was not earning Rs. 35,000/- per month. She further deposed that she did not have any document with regard to ownership and possession of Mahindra Champion in the name of deceased except a superdarinama mark-C. She deposed that she did not have any Jyoti Pal & Ors. Vs. Rais & Ors. Judge MACT 02(North) Page 18 of 33 MACP No. 448/21; FIR No. 713/21; PS. Alipur DOD: 22.05.2024 documentary evidence to prove that deceased used to earn about Rs. 20,000/- per month from the said Mahindra Champion. She denied the suggestion that deceased was not earning Rs. 55,000/- per month from all of the above said sources.
23. In order to prove the employment and income of deceased, petitioners have examined PW5 Sh. Jagdish Chander Singhal (from the office of employer of deceased) who deposed that he was the sole proprietor of M/s. Sumit Corporation, registered office at NE-22, Back Portion, Gali no. 2, Vishnu Garden, New Delhi-18. He produced the summoned record i.e. the digitally signed copy of his GST registration certificate and exhibited the same as Ex. PW5/3. He also produced the true copy of his ITR with computation sheet for the year 2019-20, 2020-21 & 2021-22 and exhibited the same as Ex. PW5/4 (colly). He also produced original salary certificate dated 16.09.2021 issued and signed by him at point A and exhibited the same as Ex. PW5/5 (a copy of the same was given to the IO at the time of preparation of DAR by the relatives of the deceased, which was part of Ex. PW1/7 (colly) (DAR). He deposed that deceased Mahesh Kumar S/o Sh. Suraj Bhan, R/o H. No. 197, Village Khampur, Delhi had remained employed with him w.e.f. 01.04.2020 to 25.08.2021 as Office Assistant. He further deposed that during the period of his employment, he used to pay him monthly salary of Rs. 35,000/- through cheque which used to be credited in his account in Bank of India. During his cross-examination on behalf of Jyoti Pal & Ors. Vs. Rais & Ors. Judge MACT 02(North) Page 19 of 33 MACP No. 448/21; FIR No. 713/21; PS. Alipur DOD: 22.05.2024 insurance company, he deposed that he had not issued any appointment letter in favour of late Sh. Mahesh Kumar. He further deposed that there was no terms of salary and other emoluments in writing which were settled at the time of appointment. He further deposed that he did not have any other document like attendance register, payment of wages register, leave register, EPF register etc. He denied the suggestion that late Sh. Mahesh Kumar was not employed in his firm. He further denied the suggestion that deceased Mahesh Kumar had landed him loan in repayment whereof he used to make monthly payment of Rs. 35,000/- to him. He denied the suggestion that he had deposed falsely in the matter with a view to facilitate the petitioner to have illegal compensation from the insurance company.
24. After referring to the testimonies of PW1 & PW5 and the documents filed by the said witnesses, Ld. counsel for petitioners vehemently argued that monthly salary of deceased may be taken as Rs. 55,000/- as per the documents produced by said witnesses in order to calculate the loss of dependency.
25. On the other hand, Ld. Counsel for the insurance company argued that there is no concrete evidence led by petitioners to establish the monthly income of deceased at the time of accident. Thus, loss of dependency should be calculated on the basis of notional income as per Minimum Wages Act applicable during the relevant period.
Jyoti Pal & Ors. Vs. Rais & Ors. Judge MACT 02(North) Page 20 of 33MACP No. 448/21; FIR No. 713/21; PS. Alipur DOD: 22.05.2024
26. PW1 has deposed in her evidence that deceased was also the owner of a goods vehicle i.e. Mahindra Champion which was being driven by his brother Sh. Mukesh Kumar for his business as he used to give the same on hire and he was earning Rs. 20,000/- per month from the said business. She further deposed that after the death of deceased, she was unable to continue with the said business and sold the aforesaid vehicle. It may be noted here that petitioners have failed to lead any cogent evidence in this regard. Even if it is considered that deceased was earning Rs. 20,000/- per month from the aforesaid business, it can not be said that after the death of deceased, petitioners would have suffered loss as the same was being driven by the brother of deceased not by the deceased himself and it can be assumed that the same was getting driven by the petitioners for the business purpose after the death of deceased also. Since, it is an admitted fact that aforesaid vehicle had been sold by the petitioners, so there is no point of loss of future income due to the death of deceased from the said business in the present case, is made out. In view of the aforesaid discussion, I am not inclined to accept the aforesaid income of Rs. 20,000/- of the deceased at the time of accident.
27. As per the document i.e. Salary Certificate(Ex. PW5/5), deceased was working with Sumeet Corporation as Office Assistant at the monthly salary of Rs. 35,000/- at the time of accident. The document i.e. copy of bank statement (Ex. PW4/1) of deceased relied upon by the Jyoti Pal & Ors. Vs. Rais & Ors. Judge MACT 02(North) Page 21 of 33 MACP No. 448/21; FIR No. 713/21; PS. Alipur DOD: 22.05.2024 petitioners shows that monthly an amount of Rs. 35,000/-had been credited in the bank account of deceased since September 2020 till August 2021 by Sumeet Corporation. It is relevant to mention here that as per the testimony of PW5 Sh. Jagdish Chander Singhal, who was the proprietor of M/s. Sumeet Corporation, deceased had remained employed with him w.e.f. 01.04.2020 to 25.08.2021 as Office Assistant. He specifically deposed that during the period of employment, he used to pay a salary of Rs. 35,000/-per month. From the aforesaid documents i.e. bank statement of deceased (Ex. PW4/1) and salary certificate (Ex. PW1/4), it can be safely presumed that deceased was working with Sumeet Corporation and was getting monthly salary of Rs. 35,000/- at the time of accident as the date of accident in the present matter is 25.08.2021. It is not out of place to mention that the aforesaid amount of Rs. 35,000/- was being credited in the bank account of the deceased by Sumeet Corporation for the payment of monthly salary to him. Furthermore, respondents have failed to lead any cogent evidence in respect of genuineness of the said documents. It is also relevant to mention here that document (Mark A) has already been placed on record by the petitioners at the time of investigation by the IO and the same was handed over to IO by them during investigation which itself proves the authenticity of the said document. It is quite clear that if the aforesaid document was procured one by the petitioners, it would have been filed by the petitioners during recording of their evidence not at the time of investigation of case. Moreover, it has been specifically stated by PW5 that he had employed the deceased as Office Jyoti Pal & Ors. Vs. Rais & Ors. Judge MACT 02(North) Page 22 of 33 MACP No. 448/21; FIR No. 713/21; PS. Alipur DOD: 22.05.2024 Assistant w.e.f. 01.04.2020 to 25.08.2021. From the documents Ex. PW1/4, Ex. PW4/1(colly) & Mark A, it is apparent that deceased Sh. Mahesh Kumar was working as Office Assistant with Sumeet Corporation at the time of accident. As per the document Ex. PW1/4, the deceased was getting monthly salary of Rs. 35,000/- at the time of accident. In view of the aforesaid discussion, I deem it fit to accept the monthly salary of deceased as Rs. 35,000/- per month as on the date of accident. I am fortified in my view with the decision of Hon'ble Supreme Court passed in case titled "Mohammed Siddique & Anr. Vs. National Insurance Co. Ltd. & Ors.", Civil Appeal No. 79 of 2020, decided on 08.01.2020. The relevant paragraphs from S.No. 16 to 18 of the aforesaid decision are reproduced as under:-
xxxxx "16. But unfortunately the High Court thought that the employer should have produced salary vouchers and other records including income tax returns, to substantiate the nature of the employment and the monthly income. On the ground that in the absence of other records, the salary certificate and the oral testimony of the employer could not be accepted, the High Court proceeded to take the minimum wages paid for the unskilled workers at the relevant point of time as the benchmark.
17. But we do not think that the approach adopted by the High court could be approved. To a specific question in cross−examination, calling upon PW−2 to produce the salary vouchers, he seems to have replied that his business establishment had been wound up and that the records are not Jyoti Pal & Ors. Vs. Rais & Ors. Judge MACT 02(North) Page 23 of 33 MACP No. 448/21; FIR No. 713/21; PS. Alipur DOD: 22.05.2024 available. This cannot be a ground for the High Court to hold that the testimony of PW−2 is unacceptable.
18. The High Court ought to have appreciated that the Court of first instance was in a better position to appreciate the oral testimony. So long as the oral testimony of PW−2 remained unshaken and hence believed by the Court of first instance, the High Court ought not to have rejected his evidence. After all, there was no allegation that PW−2 was set up for the purposes of this case. There were also no contradictions in his testimony. As against the testimony of an employer supported by a certificate issued by him, the High Court ought not to have chosen a theoretical presumption relating to the minimum wages fixed for unskilled employment. Therefore, the interference made by the High Court with the findings of the Tribunal with regard to the monthly income of the deceased, was uncalled for.
Xxxxx
28. In order to consider the age of deceased, the relevant document is his 10th class certificate (Ex. PW1/4), wherein his recorded date of birth is mentioned as 01.05.1981. Date of accident being 25.08.2021, the age of deceased was more than 40 years but less than 41 years as on the date of accident. Hence, the multiplier of 15 would be applicable in view of the case "Sarla Verma Vs. Delhi Transport Corporation", 2009 ACJ 1298 SC which has been reaffirmed by the pronouncement made by Constitutional Bench of Apex Court in the case titled as "National Insurance Company Ltd. Vs. Pranay Sethi & Ors.", passed in SLP(Civil) No. 25590/14 decided on 31.10.17.Jyoti Pal & Ors. Vs. Rais & Ors. Judge MACT 02(North) Page 24 of 33
MACP No. 448/21; FIR No. 713/21; PS. Alipur DOD: 22.05.2024
29. For the purpose of future prospects, Hon'ble Supreme Court of India in Pranay Sethi's case (supra) has been pleased to discuss the applicable aspects of law pertaining to "additions" in the minimum wages on account of "inflation" for computation of compensation. It has been held by Hon'ble Apex Court in the afore-cited case that aspect of future prospects shall be a relevant consideration in computation of just and proper compensation even in cases where the deceased was self- employed. The guiding parameters laid down in Pranay Sethi's case (supra) have been reiterated by Hon'ble High Court of Delhi in appeal bearing MAC APP No. 798/2011 titled as Bajaj Allianz General Insurance Company Ltd. V. Pooja & Ors., decided on 02.11.17, allowing the addition of 25% on account of future prospects in such cases where the deceased was above the age of 40 years and less than 50 years, if self-employed category. The addition on account of future prospects shall be 25% of the income of deceased.
30. PW1 has categorically deposed in her evidence by way of affidavit (Ex. PW1/A) that all the petitioners were fully dependent upon the income of deceased. Said part of her testimony remained unchallenged and uncontroverted from the side of respondents. Considering all these facts and circumstances, it is held that there were four dependents upon the deceased i.e. widow, one minor son and parents of deceased at the time of accident and there has to be deduction of one fourth as held in the case of Sarla Verma mentioned supra. Thus, the total loss of dependency would come out to Jyoti Pal & Ors. Vs. Rais & Ors. Judge MACT 02(North) Page 25 of 33 MACP No. 448/21; FIR No. 713/21; PS. Alipur DOD: 22.05.2024 Rs. 59,06,250/- (Rs. 35,000/- X 3/4 X 125/100 X 12 X 15). Hence, a sum of Rs. 59,06,000/- (rounded off) is awarded under this head in favour of the petitioners.
LOSS OF LOVE & AFFECTION
31. Now considering the prayer of petitioners for grant of compensation on account of "Loss of Love & Affection" the binding legal position has been laid down by the celebrated judgment of Pranay Sethi's case (supra) and recent judgment titled New India Assurance Company Limited V. Somwati & Ors., Civil Appeal no. 3093 of 2020 dated 07.09.2020 of Supreme Court of India wherein it has been held that the petitioners are not entitled to be compensated under this head. Further, the Hon'ble High Court of Delhi in appeal titled as Pooja's case (supra), has been pleased to observe in para 18 of the judgment that the constitution bench decision in Pranay Sethi's case (supra) does not recognize any other non-pecuniary head of damages. Hence, no amount of compensation is being awarded under this head.
LOSS OF CONSORTIUM
32. In view of the judgment of Hon'ble Supreme Court of India in case titled as, Pranay Sethi case (supra), the Tribunal considers that both the petitioners i.e. parents of deceased are entitled for payment of Rs. 40,000/-
Jyoti Pal & Ors. Vs. Rais & Ors. Judge MACT 02(North) Page 26 of 33MACP No. 448/21; FIR No. 713/21; PS. Alipur DOD: 22.05.2024 each towards "loss of consortium". By way of pronouncement of Pranay Sethi case (supra), the Hon'ble Supreme Court of India has been pleased to hold that there shall be an increase of 10% on account of 'inflation' after a period of three years. Applying, the afore-cited binding law the The Hon'ble High Court of Delhi in National Insurance Co. Ltd. Ltd. V. LR's of Sukhbir Singh, MAC. APP. 518/2013 vide judgment pronounced on 13.07.2023 has been pleased to direct the entitlement of dependents to 10% increase under this head, though, the date of accident was of 2011 and the date of impugned award was of 2013. Accordingly, all the petitioners are entitled to a sum of Rs. 48,400/- each (Rs. 40,000/- + 10% of Rs. 40,000/- + 10% of Rs. 44,000/-) each towards "loss of consortium".[As per the judgment Pranay Sethi(Supra), two escalations of 10% each is awarded since the date of accident in the present matter is 25.08.2021] LOSS OF ESTATE & FUNERAL EXPENSES
33. In view of the facts and circumstances of the present case and in view of decision of Hon'ble Apex Court in the case of Pranay Sethi (supra) which has been re-enforced in LR's of Sukhbir Singh (supra), the Tribunal considers that both the petitioners are also entitled for payment of Rs. 18,150/- (Rs. 15,000/- + 10% of Rs. 15,000/- + 10% of Rs. 16,500/-) on account of "loss of estate" and for equal payment of Rs. 18,150/- (Rs. 15,000/- + 10% of Rs. 15,000/- + 10% of Rs. 16,500/-) towards "funeral expenses". [As per the judgment Pranay Sethi(Supra), two Jyoti Pal & Ors. Vs. Rais & Ors. Judge MACT 02(North) Page 27 of 33 MACP No. 448/21; FIR No. 713/21; PS. Alipur DOD: 22.05.2024 escalations of 10% each is awarded since the date of accident in the present matter is 25.08.2021]
34. Therefore, on the basis of the above discussion, the compensation is quantified as below:
1. Loss of dependency Rs. 59,06,000/-
2. Loss of Consortium Rs. 1,93,600/-
3. Loss of Estate & Funeral Rs. 36,300/-
Expenses Total Rs. 61,35,900/-
Rounded off to Rs. 61,36,000/-
35. Now, the question which arises for determination is as to which of the respondents is liable to pay the compensation amount. Respondent no. 3/insurance company has not claimed exemption on account of any statutory breach as envisaged u/s.149(2) MV Act. It is nowhere the case of insurance company that any term or condition of insurance policy was breached/violated by insured. Keeping in view the existence of valid insurance policy of the offending vehicle for the relevant period and in the absence of any statutory defences available to the insurance company, insurance company concerned is legally liable to pay the compensation amount, as determined hereinabove. Issue no. 2 is decided accordingly.
Jyoti Pal & Ors. Vs. Rais & Ors. Judge MACT 02(North) Page 28 of 33MACP No. 448/21; FIR No. 713/21; PS. Alipur DOD: 22.05.2024 ISSUE NO. 3 RELIEF
36. In view of my finding on issues no. 1 & 2, I award a sum of Rs. 61,36,000/- (including interim award amount, if any) alongwith interest @ 7.5% per annum w.e.f date of filing the claim petition i.e. 22.12.2021 till the date of its realization, in favour of Lrs of deceased/petitioners and against the respondents. (Reliance placed on United India Insurance Co. Ltd. V. Baby Raksha & Ors, MAC APP. No. 36/2023 passed by Hon'ble Delhi High Court on 21.04.2023).
APPORTIONMENT
37. Statement of petitioners were recorded on 05.03.2024 in compliance of directions of Hon'ble High Court of Delhi in FAO No. 842/2023 in case titled Rajesh Tyagi & Ors. V. Jaibir Singh & Ors., decided on 08.01.2021 as per clause 29 of MCTAP. In view of their statements and keeping in view the facts and circumstances of the case, it is hereby ordered that out of the awarded amount along with proportionate interest; the petitioner no. 1 namely Smt. Jyoti Pal (widow of deceased) shall be entitled to share amount of Rs. 30,36,000/- (Rupees Thirty Lakhs and Thirty Six Thousand Only) alongwith proportionate interest, the petitioner no. 2 Master Mayank shall be entitled to share amount of Rs. 11,00,000/- (Rupees Eleven Lakhs Only) alongwith proportionate interest, petitioner no. 3 Sh. Suraj Bhan (father of deceased) shall be entitled to share amount of Jyoti Pal & Ors. Vs. Rais & Ors. Judge MACT 02(North) Page 29 of 33 MACP No. 448/21; FIR No. 713/21; PS. Alipur DOD: 22.05.2024 Rs. 10,00,000/-(Rupees Ten Lakhs Only) alongwith proportionate interest and petitioner no. 4 Smt. Jagwati shall be entitled to share amount of Rs. 10,00,000/-(Rupees Ten Lakhs Only) alongwith proportionate interest.
38. Out of share amount of petitioner no. 1, a sum of Rs. 5,36,000/- (Rupees Five Lakhs and Thirty Six Thousand Only) is directed to be immediately released to her through her bank account no. 7276000100031559 with Punjab National Bank, having IFSC Code PUNB0727600 and remaining amount is directed to be kept in the form of FDRs in the multiples of Rs. 50,000/-each for one month, two months, three months and so on and so forth, having cumulative interest.
39. The entire share amount alongwith proportionate interest of petitioner no. 2 be kept in FDR for the period till he attains the age of majority and thereafter, a sum of Rs. 3,00,000/- shall be immediately released to him through his MACT bank account only and remaining amount is directed to be kept in the form of FDRs in the multiples of Rs. 50,000/-each for one month, two months, three months and so on and so forth, having cumulative interest. The said petitioner is at liberty to withdraw his monthly interest till he attains the age of majorty in order to meet his educational expenses through his mother/natural guardian.
40. Out of share amount of petitioner no. 3, a sum of Rs. 5,00,000/- (Rupees Five Lakhs Only) is directed to be immediately released to him Jyoti Pal & Ors. Vs. Rais & Ors. Judge MACT 02(North) Page 30 of 33 MACP No. 448/21; FIR No. 713/21; PS. Alipur DOD: 22.05.2024 through his bank account no. 50509365372 with Allahabad Bank, having IFSC Code ALL0210164 and remaining amount is directed to be kept in the form of FDRs in the multiples of Rs. 25,000/-each for one month, two months, three months and so on and so forth, having cumulative interest.
41. Out of share amount of petitioner no. 4, a sum of Rs. 5,00,000/- (Rupees Five Lakhs Only) is directed to be immediately released to her through her bank account no. 50508299943 with Allahabad Bank, having IFSC Code ALL0210164 and remaining amount is directed to be kept in the form of FDRs in the multiples of Rs. 25,000/-each for one month, two months, three months and so on and so forth, having cumulative interest.
42. 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.
Jyoti Pal & Ors. Vs. Rais & Ors. Judge MACT 02(North) Page 31 of 33MACP No. 448/21; FIR No. 713/21; PS. Alipur DOD: 22.05.2024
(d) The maturity amounts of the FDR(s) be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant(s) near the place of their residence.
(e) No loan, advance, withdrawal or pre-mature discharge be allowed on the fixed deposits without permission of the Court.
(f) The concerned bank shall not to issue any cheque book and/or debit card to claimant(s). However, in case the debit card and /or cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount.
(g) The bank shall make an endorsement on the passbook of the claimant(s) to the effect that no cheque book and/or debit card have been issued and shall not be issued without the permission of the Court and claimant(s) shall produce the passbook with the necessary endorsement before the Court on the next date fixed for compliance.
(h) It is clarified that the endorsement made by the bank alongwith the duly signed and stamped by the bank official on the passbook(s) of the claimant(s) is sufficient compliance of clause(g) above.
(i) The petitioner is directed to open a Motor Accident Claims Annuity (Term) Deposit Account (MACAD) in terms of order dated 07.12.2018 of Hon'ble Justice J.R. Midha in case titled as Rajesh Tyagi and Others Vs. Jaibir Singh and Others F.A.O No. 842/03 as per clause 31 of MCTAP and form VIII titled as Motor Accident Claims Annuity Deposit (MACAD) Scheme as directed in the said order.
(j) Concerned Manager, SBI, Rohini Court branch is further directed to disburse the FD amount in Motor Accident Claims Annuity Deposit (MACAD) Scheme account as directed by Hon'ble Delhi High Court vide order dated 07.12.18, on completing necessary formalities as per rules.
Jyoti Pal & Ors. Vs. Rais & Ors. Judge MACT 02(North) Page 32 of 33MACP No. 448/21; FIR No. 713/21; PS. Alipur DOD: 22.05.2024
43. Respondent no. 3/Go Digit General Insurance Ltd., is directed to deposit the award amount with SBI, Rohini Courts branch within 30 days as per above order, failing which insurance company shall be liable to pay interest @ 12% p.a for the period of delay. Concerned Manager, SBI, Rohini Court Branch is directed to transfer the respective share amounts immediately to aforesaid petitioners in their respective bank accounts, on completing necessary formalities as per rules. He be further directed to keep the said amount in fixed deposit in its own name till the claimants approach the bank for disbursement so that the award amount starts earning interest from the date of clearance of the cheques. Copy of the award be given dasti to the petitioners and also to counsel for the insurance company for compliance. Copy of this award alongwith one photograph each, specimen signatures, copy of bank passbooks and copy of residence proof of the petitioners, be sent to Nodal Officer of SBI, Rohini Court, Branch, Delhi for information and necessary compliance. Form XV & Form XVII in terms of MCTAP are annexed herewith as Annexure-A. Copy of order be also sent to concerned M.M and DLSA as per clause 31 and 32 of MCTAP.
Digitally signed by RICHA RICHA MANCHANDA
Announced in the open MANCHANDA Date: 2024.05.22
16:21:51 +0300
Court on 22.05.2024
(RICHA MANCHANDA)
Judge MACT-2 (North)
Rohini Courts, Delhi
Jyoti Pal & Ors. Vs. Rais & Ors. Judge MACT 02(North) Page 33 of 33