IN THE COURT OF SH. [ENTITY] PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNAL :(WEST-01):DELHI Old MACT No. : 190/15 New MACT [CASE NUMBER] 1. Sh. [ENTITY] s/o Sh Shiv [ENTITY] 2. Smt. [ENTITY] w/o Sh. [ENTITY] Both R/o 5C-4, Railway Colony, East Punjabi Bagh New Delhi. Petitioners Versus 1. Sh. [ENTITY] s/o Sh. Kishori Lal R/o V. P.O Jharsa, Distt. Gurgaon(Haryana) (Driver) 2. Sh. [ENTITY] s/o Sh. Amar Nath R/o 79, Dipni Apartment, DTC Colony, Road No. 44, Pitam Pura, Delhi (Owner) 3. [ENTITY]. Div. No.10, Flat No.101-106, N-1, BMC House, Connaught Place, Old [CASE NUMBER] New Delhi-110001 (insurance company) Respondents
Date of Institution: : 27/07/2015(DAR) Date of reserving order/judgment : 28/03/2017 Date of pronouncement: : 29/03/2017 AWARD INFORMATIONINTERMSOFPROVISIONSOFTHEMODIFIED CLAIMTRIBUNALAGREEDPROCEDURE(MCTAP) 1 DateofAccident 26/04/2015 2 Date of intimation of the accident by the Notprovided Investigation Officer to the Claims Tribunal (Clasuse2) 3 Date of intimation of the accident by the 30/04/2015 Investigation Officer to the Insurance Company (Clause2) 4 DateoffilingoftheReportundersection173Cr. NotprovidedbytheIO PCbeforetheMetropolitanMagistrate(Clause10) 5 Date of filing of Detailed Accident Information 27072015 Report(DAR) by the Investigation Officer before ClaimsTribunal(Clause) 6 Date of service of DAR on the Insurance Datenotmentioned Company(clause11) 7 Date of service of DAR on the claimant(s) do (Clause11) 8 Whether DAR was complete in all respects? Yes (Clause11) 9 IfnotstatedeficienciesintheDAR 10 Whether the police has verified the documents Yes filedwithDAR?(clause4) 11 Whethertherewasanydelayordeficiencyonthe No part of the Investigation Officer? If so, whether anyaction/directionwarranted?
12 DateofappointmentoftheDesignatedOfficerby Notmentioned/W.S.filedby theInsuranceCompany theinsurancecompany. 13 Name , address and contact number of the NotmentionedasW.S.filed Designated Officer of the Insurance bytheinsurer Company(Clause19) 14 WhethertheDesignatedofficeroftheinsurance Some time was taken for Company submittedhisreportwithin30daysof filing reply as defence was theDAR?(Clause21) takenbytheinsurer,butno statutorydefencewastaken by the insurance company inthepresentmatter.
15 Whether the Insurance Company admitted the Written statement was filed liability?Ifso,whethertheDesignatedOfficerof by the insurance company the Insurance Company fairly computed the asdefencewastakenbythe compensationinaccordancewithlaw.(Clause22) insurer but no statutory defence was taken by the insurance company in the presentmatter.
16 Whethertherewasanydelayordeficiencyonthe No part of the Designated officer of the Insurance Company? If so whether any action/ direction warranted?
17 Dateofresponseoftheclaimant(s)totheofferof Offer was not given by the theInsuranceCompany?(Clause23) insurance company.
Defence was taken by the insurancecompany.
18 DateofAward 29/03/2017 19 Whethertheawardwaspassedwiththeconsent Yes oftheparties?(Clause22) 20 Whethertheclaimants(s)examinedatthetimeof Yes passing of the award to ascertain his/ their financialcondition?(Clause26) 21 Whether the photographs, specimen signatures, Yes proofofresidenceandparticularsofbankaccount oftheinjured/legalheirsofthedeceased taken atthetimeofpassingoftheaward?(Clause26) 22 Modeofdisbursementoftheawardamounttothe Mentionedintheaward claimant(s)(Clause28) 23 NextDateofcomplianceoftheaward(Clause30) 29/05/2017
1. Vide this judgment- cum- award, I shall decide the petition under [SECTION] and [SECTION] of [ACT] as amended up to date (hereinafter referred as Act) filed by petitioners for grant of compensation for the death of deceased Master [ENTITY] in the road vehicular accident.
2. Brief facts of the case of the petitioners are that on 26/04/2015, the deceased Master [ENTITY] alongwith his friend [ENTITY] was going towards Transport Centre, Punjabi Bagh, Delhi on Scooty bearing No. DL-8S-BS-0733 being driven by the deceased. It has been further alleged that at about 6.00 p.m when the said Scooty reached near underpass, New Rohtak Road, Punjabi Bagh, New Delhi, then all of a sudden, the offending Bus bearing registration No. DL -1PC-2894 which was being driven by its driver /the respondent no.1 in a rash and negligent manner, hit the scooty of the deceased with great force. Resultantly, the deceased alongwith his scooty fell down on the road and he came under the left front wheel of the offending vehicle and sustained fatal injuries.
3. As a result of the abovesaid accident, as per the case of the petitioners, FIR No. 467/15 u/s [SECTION] [ACT], P. S, Punjabi Bagh was registered. The petitioners have further stated that the deceased died at the spot and his post mortem was conducted by the doctor of Sanjay Gandhi Memorial Hospita, Delhi. It has been further stated that the deceased was a minor being aged about 16 years( born on 27/09/1999) and was a student of class [ENTITY]. It has been further stated that the deceased was doing tuition work for his gain in nearby area and was earning Rs 10,000/- per month. It has been further stated that deceased used to contribute towards his family about Rs. 10,000/- per month. The petitioner No.1 is the father of the deceased and the petitioner No.2 is the mother of the deceased.
In total the petitioners have claimed a total sum of Rs. 30,00,000/- (Rupees Thirty Lacs Only) on account of compensation.
4. Written statement has been filed by the respondent No.1 wherein he has stated that the driver of the offending vehicle was not negligent. He has further stated that the deceased was minor and he was not authorized to drive any vehicle. He has further stated that the accident has taken place due to rash and negligent driving of the deceased himself. It has been further stated that the deceased himself lost the balance of the scooty and struck with the bus. It has been further stated that alleged offending vehicle was fully insured in the name of the respondent No.2 Sh. [ENTITY] vide policy [CASE NUMBER] for the period from 07/06/2014 to 06/06/2015. It has been further stated that the respondent No.1 was having a valid and effective driving license at the time of alleged accident. Hence, the present petition is liable to be dismissed.
5. Written statement has been filed by the respondent No.2 wherein he has stated that the driver of the offending vehicle was not negligent. He has further stated that the deceased was minor and he was not authorized to drive any vehicle. He has further stated that the vehicle was comprehensively insured with the insurance company as on the date of accident. He has further stated that the driver of the offending vehicle was holding a valid and effective driving licence as on the date of accident and all the concerned documents have been handed over to the IO. The respondent No.2 has prayed that the present petition be dismissed with exemplary costs.
6. Written statement has been filed by respondent no.3, insurance company wherein it has been admitted that the offending vehicle was insured with it as on the date and time of accident and denied the other contents of the petition.
7. The following issues were framed by the Ld Predecessor of this Tribunal on 10/02/2016.
1.Whether the deceased Master [ENTITY] suffered injuries in an accident that took place on 26/04/2015 at about 6.00 p.m due to rash and negligent driving of Bus No. DL 1P-2894, driven by the Respondent No.1, owned by the Respondent No.2 and insured with the Respondent No.3? OPP
2. Whether the petitioner/s is /are entitled fore compensation ? If so, to what amount and from whom?OPP
3. Relief.
8. In order to establish its claim, the petitioner No.1 Sh. [ENTITY] has examined himself as PW-1.
9. The respondents have not led any evidence in their defence.
10. Ld. Counsel for the petitioners has filed on record the citation in [PRECEDENT] dated 20/12/2007.
11. I have gone through the material available on record and given thoughtful consideration to the arguments addressed by Ld. Counsel for the petitioners and Ld. Counsel for the insurance company.
My findings on various issues are as under :-
12. The present petition has been filed by the petitioners u/[SECTION] & [SECTION] [ACT] and the onus is upon the petitioners to prove the rash and negligent act of the respondent No.1.
13. PW-1 has proved his Voter I Card and Aadhar Card as Ex.PW1/1 and PW1/2. He has proved the Votor I Card and Aadhar Card of his wife / the petitioner No.2 as Ex. PW1/3 and PW1/4. He has also proved the School Identity Card of his son as Ex. PW1/5. He has deposed that his son was a brilliant student and active participant in co-curricular/ sports activities. He has proved of the certificate of appreciation as Ex. PW1/6. He has also relied upon the DAR coupled with other documents filed by the police as Ex. PW1/7 (colly.).
During the cross-examination by the insurance company , PW-1 has stated that he was not the eye witness to the accident.
14. Ld. Counsel for the insurance company has argued that as per the contents of the FIR, no negligence is made out against the respondent No.1 and the deceased himself was rash and negligent at the time of accident. It has been further argued that the deceased was a minor who himself lost control of his scooty and hit the alleged offending vehicle. Ld. Counsel for the respondent No.3 has also argued that the deceased atleast contributed towards the cause of accident and the minor deceased was driving the scooty without any driving license.
15. Ld. Counsel for petitioners has argued that since the charge -sheet has been filed against the respondent No.1 for the offence u/s [SECTION] [ACT], no contributory negligence is made out on the part of the injured person.
16. I have considered the submissions of the rival parties and gone through the record.
17. So far as, the defence raised by the insurance company regarding the fact that minor deceased was driving the vehicle without Driving License at the time of accident is concerned, I am being guided by the judgment of Hon'ble Supreme Court of India in case titled as ' National Insurance Co. Ltd Vs. [ENTITY] & Ors, reported in 2004 ACJ 1 in which it has been held in para no.'102' thereof that insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches of the conditions of policy are so fundamental as are found to have contributed to the cause of the accident. It was further held that Tribunals in interpreting the policy conditions would apply 'the rule of main purpose' and the concept of 'fundamental breach' to allow defences available to the insurer u/[SECTION] of the Act.
18. In the present matter, the insurer has also failed to prove the said fact by leading any specific evidence that the said breach was so fundamental in nature as was found to have contributed to the very cause of accident in terms of the judgment of Hon'ble Supreme Court of India in [ENTITY] case(supra). The [ACT] being a benevolent legislation, the rule of the main purpose has to apply. Further, the driver of the offending vehicle / respondent No.1 has already been charge sheeted for the offence u/s [SECTION] [ACT]. The respondent No.1 has even not filed any complaint against the police for his false implication in the criminal case before any higher authority. The respondents No. 1 & 2 have also not examined themselves as they have failed to appear as a witness in the present matter. Further more, it has to be seen that no other independent witness has been examined by the respondents to prove their defences raised by them in their written statements. Hence, the aforesaid pleas raised by the respondents No.1 & 2 as well as by the respondent No.3 stand rejected.
19. In the present case, the police have filed the Detailed Accident Report (DAR) on record pertaining to FIR No. 272/13; P. S. Kirti Nagar u/s [SECTION] [ACT].
20. In the absence of the examination of the eye witness by the petitioners in the present case, to determine negligence, I am being guided by the judgment of Hon'ble High Court of Delhi in [PRECEDENT] [PRECEDENT] wherein in the Hon'ble High Court held that in case the petitioner files the certified copy of the criminal record showing the completion of the investigation by the police or the issuance of charge sheet under [SECTION] A [ACT] or the certified copy of the FIR or in addition the recovery memo on the mechanical inspection report of the offending vehicle, these documents are sufficient proof to reach to the conclusion that the driver was negligent.
It was further held that the proceedings under the [ACT] are not akin to the proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard.
Further, in [PRECEDENT] the issue of wrongful act or omission on the part of driver of the motor vehicle involved in the accident has been left to a secondary importance and mere use or involvement of motor vehicle in causing bodily injuries or death to a human being or damage to property would made the petition maintainable under [SECTION] and [SECTION] of the Act.
It is also settled law that the rashness and negligence has to be construed lightly while making a decision on a petition for claim for the same as compared to the word rashness and negligence as finds mention in the [ACT]. This is because the chapter in the [ACT] dealing with compensation is a benevolent legislation and not a penal one.
Further the Hon'ble High of Delhi in [CASE NUMBER] in case titled as [PRECEDENT] decided on 23/07/2012 had held as under:
"The Claims Tribunal was conscious of the fact that negligence is a sine qua non to a Petition under [SECTION] of the [ACT] Act). It is also true that the proceedings for grant of compensation under the Act are neither governed by the criminal procedures nor are a civil suit. A reference may be made to a judgment of the Supreme Court [ENTITY] and Ors. V [ENTITY] [PRECEDENT] where it was held as under:
"15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of any accident caused by a particular bus in a particular manner may not be possible to be done by the claimant. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied."
After going through all the documents filed by the petitioner as well as the DAR filed by the police containing the documents i.e. final report u/[SECTION] [ACT]; Rukka; FIR; site plan; MLC / post- mortem report of the deceased; site plan; mechanical inspection report of both the vehicle involved in the accident; seizure memo of the DL and RC and its verification; death certificate of the deceased as a whole it is clear that respondent no. 1 was driving the vehicle in rash and negligent manner and caused fatal injury to the deceased.
The issue No. 1 , therefore, stands decided in favour of the petitioners and against the respondents.
21. The School Identity Card of the deceased Sh. [ENTITY] as Ex. PW1/5 issued by the Sarvodaya Co-ed. Sr. Sec. School, Jaidev Park, New Delhi suggests his date of birth as 27/09/1999 and was studying in 9 th class. The date of accident is 26/04/2015. Accordingly, the deceased was 16 years of age as on the date of accident.
22. As per the petition, the deceased was studying in 9 th class and was also doing tuition work at the time of accident. The deceased was stated to be earning Rs. 10,000/- per month. The petitioners have neither led any evidence to prove that he was doing tuition work nor proved his monthly income at the time of accident.
In these circumstances, the income of the deceased can very well be assessed on the basis of the chart available in the [ACT]. The date of accident is 26/04/2015 on which the minimum wages for non-matriculate person were Rs. 10,010/-.
23. Ld. Counsel for petitioners have requested for balancing the income of the victim on the basis of inflation trends and requested that 50% increase be made in the income of the victim on the basis of judgment of Hon'ble Supreme Court of India in "[PRECEDENT] , but per contra Ld. counsel for the insurer objected the same and argued that in terms of judgment of Hon'ble High Court of Delhi in '[PRECEDENT]' in MAC. [CASE NUMBER] & [CASE NUMBER] decided on 29/01/2016 by Hon'ble Mr. Justice [ENTITY], future prospect in the income of the deceased be not added in the income of deceased. On this aspect, the Hon'ble High Court of Delhi in the aforesaid judgment has held as under:-
"5. The law is well settled that in case of compensation on account of death, loss of dependency is to be computed by adopting the multiplier having regard to the age of the deceased or the claim whichever is higher[ [PRECEDENT] and General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Mrs. [ENTITY] & ors, (1994) 2SCC 176]
6. In the case reported as [ENTITY] & Ors. Vs. Delhi Transport Corporation & Anr, (2009) 6SCC 121, Supreme Court, inter-alia, ruled that the element of future prospects of increase in income will not be granted in cases where the deceased was " self employed" or was working on a "fixed salary". Though this view as affirmed by a bench of three Hon'ble Judges in [ENTITY] & Ors Vs. Madan Mohan & Anr, (2013) 9SCC 65, on account of divergence of views, as arising from the ruling in [PRECEDENT] the issue was later referred to a larger bench, inter alia by order dated 02/07/2014 in [PRECEDENT].
7. Against the above back drop by judgment dated 22/01/2016 passed in [CASE NUMBER]. ), the court has found it proper to follow the view taken earlier by a learned single judge in MAC Appeal no.
189/2014 ([PRECEDENT]) decided on 12.01.2015, presently taking the decision in [ENTITY] (supra) as the binding precedent, till such time the law on the subject of future prospects for those who are " self -employed" or engaged in gainful employment at a " fixed- salary" is clarified by a larger bench of the Supreme Court"
Further, the Hon'ble High Court of Delhi in its recent decision in ' [CASE NUMBER] and [CASE NUMBER] in the [PRECEDENT] decided on 13/05/2016 by Hon'ble Mr. Justice [ENTITY] wherein it has been held as under:
"6. In the case reported as [ENTITY] & Ors vs Delhi Transport Corporation & Anr, (2009) 6 SCC 121, Supreme Court, inter -alia, ruled that the element of future prospects of increase in income will not be granted in cases where the deceased was " self employed" or was working on a " fixed salary".
Though this view was affirmed by a bench of three Hon'ble Judges in [ENTITY] & Ors vs. Madan Mohan & Anr. (2013) 9 SCC 65, on account of divergence of views, as arising from the ruling in [PRECEDENT], the issue was later referred to a larger bench, inter -alia , by order dated 02.07.2014 in [PRECEDENT].
7. Against the above backdrop by judgment dated 22.01.2016 passed in [PRECEDENT], this court has found it proper to follow the view taken earlier by learned single judge in [PRECEDENT] decided on 12.01.2015, presently taking the decision in [ENTITY]) as the binding precedent, till such time the law on the subject of future prospects of those who are " self-employed" or engaged in gainful employment at a " fixed salary" is clarified by a larger bench of the Supreme Court."
After going through the facts and circumstances of the present case and the aforesaid case laws laid down, I am not inclined to grant future prospects on the income of the deceased in this case.
24. Ld. Counsel for petitioners submitted that deceased have left behind two dependents and 50% of the income of the deceased be deducted towards personal and living expenses.
25. As per the judgment of Hon'ble Supreme Court of India in '[ENTITY] & Ors. Vs. DTC & Anr. decided on 15.4.2009 in C.A. No. 3483/08' 50% of the income of the deceased is directed to be deducted towards personal and living expenses as the deceased was bachelor and has left behind two dependents in view of the aforesaid discussion. After deducting one- half towards personal expenses, the monthly loss of dependency comes out to be (Rs. 10,010/- less Rs. 5005/-) = Rs. 5005/-
26. For the purposes of determining the multiplier in case of death of bachelor, I am being guided by the directions to the Tribunals contained in the judgment of Hon'ble High Court of Delhi in a case titled as [PRECEDENT] in [CASE NUMBER] decided on 24/03/2014. In paras No. 20 and 21 thereof, the Hon'ble High Court of Delhi in the said judgment has held as under:
"20. I note in [ENTITY], the Apex Court has not applied or adopted the concept of selection of multiplier as per [ENTITY], in turn; the multiplier has been selected on the basis of the age of deceased. The above legal proposition has been further affirmed by the Supreme Court in the case of [PRECEDENT] held as under:
15. The Tribunal adopted the multiplier of 17 and the High Court determined the multiplier as 12 on the basis of the age of the parents/claimants. This Court in the decision in [PRECEDENT] held as follows:
15. The Selection of multiplier is based on the age of the deceased and not on the basis of the age of the dependent. There may be a number of dependents of the deceased whose age may be different and, therefore, the age of the dependents has no nexus with the computation of compensation.
16. In the decision in [ENTITY] Case(supra) this court held that the multiplier to be used should be as mentioned in column(4) of the table of the said judgment which starts with an operative multiplier of
18. As the age of the deceased at the time of the death was 24 years, the multiplier of 18 ought to have been applied. The Tribunal taking into consideration the age of the deceased wrongly applied the multiplier of 17 and the High Court committed a serious error by bringing it down to the multiplier of
21. The maximum value of the multiplier is fixed at '18' which fairly representing the purchasing capacity of a victim in a stable economy. In the ascertainment of purchasing capacity of the victim, the age of the claimant has no relevance because of the fact that it has no nexus with the assessment of the loss of dependency".
27. The age of the deceased has already been determined as about 16 years as stated herein above as on the date of accident. In view of the aforesaid discussion and the ratio of law as laid down by the Hon'ble High Court of Delhi in the aforesaid [CASE NUMBER], the appropriate multiplier applicable is '18'. Hence, the total loss of dependency comes out to ( Rs. 5005 x 12 x 18 )= Rs. 10,81,080/-.
28. Regarding loss of love and affection, I am being guided by the judgment of Hon'ble High Court of Delhi in [PRECEDENT] , the petitioners are entitled of Rs. 1,00,000/- towards love and affection; Rs. 25,000/- towards funeral charges.
29. Accordingly, I hereby grant compensation for a sum of Rs. 1,00,000/- towards love and affection; Rs. 25,000/- towards funeral charges. I also grant compensation of Rs. 25,000/- towards loss of estate in terms of the judgment in [PRECEDENT].
Therefore, in total, I hereby award a sum of Rs. 12,31,080/- =( Rs. 10,81,080/- + Rs. 1,50,000/-) in favour of the petitioners and against the respondents.
R E L I EF / ISSUE NO.3
30. I award Rs. 12,31,080/- (Rupees Twelve Lacs Thirty One Thousand Eigjhty Only) as compensation with interest at the rate of 9% per annum including interim award, if any from the date of filing the DAR i.e. 27/07/2015 till the notice under [SECTION] is given by the insurance company, in favour of the petitioner and against the respondents on account of their liability being joint and several. Both petitioners shall have equal share in the award amount
31. In accordance with the orders dated 13.02.2017 passed in [CASE NUMBER] titled as [PRECEDENT]. by the Hon'ble High Court of Delhi, the respondent no.3 is directed to deposit the amount of Rs. 12,31,080/- (Rupees Twelve Lacs Thirty One Thousand Eighty Only) as stated herein above with SBI, Tis Hazari Courts, Delhi, out of which the amount of Rs. 2,31,080/- shall be released to the petitioners No.1 & 2 jointly keeping in view the submissions of the Ld. Counsel for the petitioners and that of the petitioners as well and in the entirety of the facts.
The rest of the amount of Rs. 10,00,000/- (Rupees Ten Lacs Only) shall be kept in 100 equal monthly [ENTITY]'s jointly in the names of both the petitioners for an amount of Rs. 10,000/- each with cumulative interest.
The following conditions shall be adhered to by SBI, Tis Hazari Courts, Delhi with respect to the [ENTITY]'s:
(i) Original fixed deposit receipts be retained by the bank in safe custody. However, a statement containing [ENTITY] number, [ENTITY] amount, date of maturity of [ENTITY] and maturity amount of the [ENTITY]s be given to the claimant.
(ii) The maturity amount of the [ENTITY] be credited in the saving account of the claimant near the place of her residence.
(iii) No cheque book be issued to the claimant in the savings bank account without permission of the Court.
(iv) No loan, advance or withdrawal be allowed on the fixed deposits without permission of the Court.
(v) The Bank shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the victims APPORTIONMENT OF LIABILITY
32. Accordingly, respondent No. 3 / insurance company is directed to deposit the award amount within a period of 30 days under the intimation to this court. In case of any delay, it shall be liable to pay interest at a rate of 12% per annum for the period of delay.
File be consigned to Record Room.
A separate file be prepared for compliance report and put up the same on 29/05/2017.
A copy of this award be sent to the concerned Ld. MetropolitanMagistrateaswellasDSLSAaspertheprovisionsof the MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE (MCTAP).
Announced in the open court ( [ENTITY] ) On of 29th of March, 2017 Judge, MACT (WEST-01) Delhi (29/03/2017) 29/03/2017 Present: None Award is passed separately. File be consigned to Record Room.
A separate file be prepared for compliance report by the Nazir and put up the same on 29/05/2017. A copy of this award be sent to the concerned Ld. MetropolitanMagistrateaswellasDSLSAaspertheprovisionsof the MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE (MCTAP).
( [ENTITY] ) Judge, MACT (WEST-01) Delhi (29/03/2017)