-1- IN THE COURT OF MS. HEMANI MALHOTRA, JUDGE, MOTOR ACCIDENT CLAIMS TRIBUNAL02, WEST DISTRICT, TIS HAZARI COURTS, DELHI Petition No:77215/2016 FIR No.327/08 PS Rajouri Garden 1. [ENTITY] (Father of deceased [ENTITY]) S/o late Sh.Puran Chand 2. Smt.[ENTITY] (Wife of deceased) 3. [ENTITY] (Daughter of deceased) 4. [ENTITY] (Daughter of deceased) 5. [ENTITY] (Son of deceased) 6. [ENTITY] (Daughter of deceased) All R/o 2/31, Sector11, Rohini, Delhi Petitioners Versus 1. [ENTITY] S/o Sh.Shyam R/o C5/16, Sector5, Rohini, Delhi (Driver of TSR bearing registration No.DL1RE2435) 2. [ENTITY] S/o Sh.S.M. Ram R/o 331, A/2, Gali No.1, Rajgarh Colony, Delhi (Registered Owner of TSR) -2- 3. The [ENTITY] At: Oriental House, A25/27, Asaf Ali Road, New Delhi (Insurer of TSR) 4. [ENTITY] S/o Sh.[ENTITY] R/o N86, Jhuggi No.7, Lowrence Road, New Delhi (Driver of [SECTION] bearing registration No.DL1LD3532) 5. [ENTITY] R/o B1/9, Yamuna Vihar, Delhi (Registered Owner of [SECTION]) 6. The [ENTITY] At: 312302, Chandna Complex, III Floor, Gurdwara Road, Karol Bagh, New Delhi (Insurer of [SECTION]) Respondents
Date of Institution : 03.12.2008 Date of concluding arguments : 14.12.2018 Date of pronouncement of judgment/award : 20.12.2018 AWARD
1. This judgmentcumaward shall decide the claim petition filed by the petitioners under [SECTION] and [SECTION] of the [ACT] (hereinafter referred to as "[ACT]") as amended up to date to claim compensation for death of [ENTITY] in a road accident that took place on 19.06.2008. An FIR No.327/08 under [SECTION] [ACT] was registered at Police Station Rajouri Garden and chargesheet was filed against [ENTITY] (Respondent No.1), driver of TSR bearing registration No.DL1RE2435.
2. Certified copies of criminal proceedings including FIR, chargesheet, site plan etc. were filed by the petitioners.
3. Brief facts of the vehicular accident as averred in the Claim Petition are that at about 06:00 am on 19.06.2008, deceased [ENTITY] was going from Sector11, Rohini to Airport in a TSR bearing registration No.DL1RE2435 which was being driven by respondent No.1/[ENTITY]. When the said TSR crossed the Raja Garden Flyover, it met with an accident with [SECTION] bearing registration No.DL1LD3532 which was parked wrongly by respondent No.4/driver [ENTITY]. Resultantly, [ENTITY] sustained grievous injuries and was removed to ESI Hospital where he succumbed to his injuries. It was claimed by the petitioners that the accident was caused due to negligence of both respondent Nos.1/[ENTITY] (driver of TSR bearing registration No.DL1RE2435) and 4/driver of [SECTION] bearing registration No.DL1LC 3532.
4. Subsequently, it transpired that the offending vehicle (TSR) was owned by respondent No.2/[ENTITY] and insured with respondent No.3/The [ENTITY], whereas, the other offending vehicle i.e. [SECTION] was owned by respondent No.5/[ENTITY] and insured with respondent No.6/The [ENTITY]
5. Vide order dated 27.08.2012 passed by Learned Predecessor, the defence of respondent Nos.1, 4 and 5 was struck off as they did not file their written statements.
6. In the Written Statement filed by respondent No.2, it was claimed that respondent No.2/[ENTITY] was not the owner of the offending TSR. It was claimed by him that the said TSR was sold by respondent No.2 to one [ENTITY] S/o Sh.[ENTITY] R/o C10/50, Sector5, Rohini, Delhi on 01.03.2007. It was further claimed that respondent No.2 had sent a written information to RTO regarding sale of offending TSR to [ENTITY] vide which he had also requested that his name be deleted as registered owner. It was also averred that [ENTITY] did not inform him about the accident and got the vehicle registered in his name after the accident. Respondent No.2 came to know of the accident subsequently. It was also averred that respondent No.1/[ENTITY] was nephew of [ENTITY] and that respondent No.1 was not his driver. It was also submitted that since [ENTITY] played a fraud with respondent No.2, hence, respondent No.2 is not liable to pay any compensation to the petitioners.
7. In the Written Statement filed by respondent No.3/The [ENTITY], it was stated that the accident was caused due to rash and negligent act of [SECTION]. It was, however, admitted that the TSR was duly insured with it vide Policy bearing [CASE NUMBER] valid from 29.09.2007 to 28.09.2008 including the date of accident.
8. In the Written Statement filed by respondent No.6/The [ENTITY], it was admitted that [SECTION] bearing registration No.DL1LD3532 was duly insured with it vide Policy bearing [CASE NUMBER] valid from 13.09.2007 to 12.09.2008.
9. From the pleadings of the parties, contentions raised and material on record, the following issues were framed by the Learned Predecessor vide order dated 27.08.2012:
1. Whether the deceased Sh.[ENTITY] suffered fatal injuries in an accident that took place on 19.06.2008 at about 06:00 am involving of two vehicles i.e. TSR bearing No.DL1RE2435 and [SECTION] bearing No.DL1LD3532 respectively driven by the respondent No.1 (Driver of the TSR bearing No.DL1RE2435) and respondent No.4 (Driver of [SECTION] bearing No.DL1LD3532), owned by respondent No.2 (Owner of the TSR bearing No.DL1RE2435) and respondent No.5 (Owner of [SECTION] bearing No.DL1LD3532) respectively and insured with respondent No.3 (Insurer of TSR bearing No.DL1RE2435) and respondent No.6 (Insurer of [SECTION] bearing No.DL1LD3532) respectively? OPP
2. Whether the petitioner/petitioners is entitled for compensation? If so, to what amount and from whom?
3. Relief.
10. I have heard the arguments addressed by learned Counsels for the parties and have meticulously gone through the testimonies of the witnesses as well as the court record.
11. My findings on various issues are as under:
ISSUE NO.1 Whether the deceased Sh.[ENTITY] suffered fatal injuries in an accident that took place on 19.06.2008 at about 06:00 am involving of two vehicles i.e. TSR bearing No.DL1RE2435 and [SECTION] bearing No.DL1LD3532 respectively driven by the respondent No.1 (Driver of the TSR bearing No.DL1RE2435) and respondent No.4 (Driver of [SECTION] bearing No.DL1LD3532), owned by respondent No.2 (Owner of the TSR bearing No.DL1RE2435) and respondent No.5 (Owner of [SECTION] bearing No.DL1LD3532) respectively and insured with respondent No.3 (Insurer of TSR bearing No.DL1RE2435) and respondent No.6 (Insurer of [SECTION] bearing No.DL1LD3532) respectively? OPP
12. Since the present claim petition is filed under the provisions of [SECTION] & [SECTION] of the [ACT], it was the bounden duty of the petitioners to prove that the driver of the offending vehicle was rash and negligent in driving the offending vehicle at the time of accident.
13. In support of their claim, petitioners examined petitioner No.2/Smt.[ENTITY], wife of deceased [ENTITY] as PW1; [ENTITY], Accountant in the Proprietorship Firm of deceased as PW2 and [ENTITY], Tax Assistant, Ward 39(1), Civic Centre as PW3.
14. During the course of final arguments, it transpired that petitioners had neither examined eyewitness to the accident nor the Investigating Officer of FIR No.372/08, PS Rajouri Garden. Pursuant thereto, summons were sent to IO/ASI [ENTITY] and it was reported that he had since expired. The eyewitnesses to the accident were respondent No.1/driver of TSR bearing registration No.DL 1RE2435 and respondent No.4/driver of [ENTITY] bearing registration No.DL 1LD3532 who did not file written statement and were proceeded exparte. In view of the said circumstances, the negligence of the offending vehicles can only be assessed on the basis of the documents and facts mentioned in the AIR, FIR and chargesheet.
15. Otherwise also, it is well settled that this Tribunal has the power to arrive at a conclusion on the basis of the material placed before it. In a case titled as [PRECEDENT], it was held by the Guwahati High Court as under:
"In deciding a matter Tribunal should bear in mind the caution struck by the Apex Court that a claim before the Motor Accidents Claim 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 basis of preponderance of evidence. But in a claim before the Motor Accidents Claims Tribunal, the standard of 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 a Tribunal can arrive or decide things necessary to be decided for awarding compensation. But the Tribunal is not expected to take or to adopt the nicety of a civil or of criminal case. After all, it is a summary enquiry and this is a legislation for the welfare of the society. In [PRECEDENT], the Supreme Court pointed out that the Accidents Claims Tribunals must take special care to see that the innocent victims do not suffer and persons liable do not escape liability merely because of some doubt here and some obscurity there. The court should not succumb to niceties, technicalities and mystic maybes. The court is bound to take broad view of the whole matter that is what was not done of the whole matter."
16. The bare perusal of the FIR and the chargesheet reveals that FIR No.372/08 was registered on the First Information Statement of [ENTITY]/driver of [SECTION]/respondent No.4. It was stated by him that at about 6:00 am on 19.06.2008, he had parked his [ENTITY] on left side of the Ring Road after getting off the flyover of Raja Garden as the same had got punctured. In the meantime, one TSR bearing registration No.DL1RE2435 came at a high speed in a rash and negligent manner and dashed his TSR into [ENTITY]. Resultantly, the passenger sitting in TSR sustained injuries. PCR arrived at the spot and the passenger was removed to ESI Hospital.
17. The sequence of events as narrated in the First Information Statement of respondent No.4/[ENTITY], driver of [ENTITY] were neither controverted nor challenged by respondent Nos.3 and 6 ([ENTITY] and New India Assurance Company). Also, the Insurance Companies i.e. respondent Nos.3 and 6 did not examine any witness to disprove the contents of the FIR.
18. It is apparent from the First Information Statement of respondent No.4/[ENTITY] that he had parked his [ENTITY] on the Ring Road without any indicator and he was in the process of replacing the punctured tyre. From the contents of the FIR and chargesheet, it is also apparent that respondent No.1/driver of TSR was speeding on the slope of Raja Garden flyover and had dashed against the rear side of [ENTITY]. From the said fact, it can be safely inferred that the TSR driver/respondent No.1 could not control the TSR due to high speed. Thus, in my opinion, both the vehicles contributed equally in the accident in question in which the deceased [ENTITY] lost his life.
19. In view of my aforesaid discussion, it is held that death of deceased [ENTITY] was caused due to rash and negligent act of both respondent Nos.1 and 4. Hence, Issue No.1 is, thus, decided in favour of the petitioners and against the respondents.
20. Finding on Issue No.2:
Whether the petitioner/petitioners is entitled for compensation? If so, to what amount and from whom?
21. Since issue No.1 is decided in favour of the petitioners, they are entitled for compensation.
22. In [ENTITY] AND OTHERS VS. DELHI TRANSPORT CORPORATION AND ANOTHER, (2009) 6 SUPREME COURT CASES 121 , which has been reiterated by the Constitution Bench of Hon'ble Supreme Court in a case titled as NATIONAL INSURANCE COMPANY VS. [ENTITY] & ORS. decided on 31.10.2017, the Hon'ble Supreme Court of India laid down general principals for computation of compensation in death cases. The relevant paras of the judgment are reproduced here as under:
"18. Basically only three facts need to be established by the claimants for assessing compensation in the case of death:
(a) age of the deceased;
(b) income of the deceased; and
(c) the number of dependents.
This issues to be determined by the Tribunal to arrive at the loss of dependency are:
(i) additions/deductions to be made for arriving at the income;
(ii) the deduction to be made towards the personal living expenses of the deceased; and
(iii) the multiplier to be applied with reference to the age of the deceased.
If these determinations are standardized, there will be uniformity and consistency in the decisions. There will be lesser need for detailed evidence. It will also be easier for the Insurance Companies to settle accident claims without delay.
19. To have uniformity and consistency, the Tribunals should determine compensation in cases of death, by the following wellsettled steps:
Step1 (Ascertaining the multiplicand) The income of the deceased per annum should be determined. Out of the said income a deduction should be made in regard to the amount which the deceased would have spent on himself by way of personal and living expenses. The balance, which is considered to be the contribution to the dependent family, constitutes the multiplicand. Step2 (Ascertaining the multiplier) Having regard to the age of the deceased and period of active career, the appropriate multiplier should be selected. This does not mean ascertaining the number of years he would have lived or worked but for the accident. Having regard to several imponderables in life and economic factors, a table of multiplier with reference to the age has been identified by this Court. The multiplier should be chosen from the said table with reference to the age of the deceased.
Step3 (Actual Calculation) The annual contribution to the family (multiplicand) when multiplied by such multiplier gives the 'loss of dependency' to the family.
Thereafter, a conventional amount in the range of Rs. 5,000/ to Rs. 10,000/ may be added as loss of estates. Where the deceased is survived by his widow, another conventional amount in the range of Rs. 5,000/ to Rs. 10,000/ should be added under the head of loss of consortium. But no amount is to be awarded under the head of pain, suffering or hardship caused to the legal heirs of the deceased.
The funeral expenses, cost of transportation of the body (if incurred) and the cost of any medical treatment of the deceased before death (if incurred) should also be added."
Therefore, in view of the aforecited judgment, it is essential to take into consideration the following parameters: Age of the deceased
23. PW1/Smt.[ENTITY], wife of deceased [ENTITY], in her evidence by way of affidavit (Ex.PW1/A) testified that her deceased husband was aged 40 years. But no identity or age proof of deceased was placed on record. However, as per Income Tax Return for the Assessment Year 200809 placed on record by the petitioners, date of birth of deceased was 01.01.1965. Since the accident took place on 19.06.2008, hence, deceased was aged 43 years at the time of accident.
Selection of multiplier
24. As the deceased was aged 43 years at the time of the accident, keeping in view the criteria laid down in [ENTITY] (SUPRA), multiplier applicable according to age of deceased would be 14 (fourteen).
Income of the deceased
25. It was claimed by PW1/Smt.[ENTITY] that her deceased husband was running a business of manufacturing and trading of cotton canvas bags and cotton fabric under the name & style of M/s S.K. Traders and earning Rs.50,000/ per month. To support her version, she placed on record Income Tax Returns of the deceased for Assessment Years 200506 (F.Y. 200405);
200607 (F.Y. 200506); 200708 (F.Y. 200607) and 200809 (F.Y. 200708). To prove these ITRs, petitioners examined [ENTITY], Munim/Accountant of M/s S.K. Traders as PW2 and [ENTITY], Tax Assistant, Income Tax Deptt. as PW3. PW3/[ENTITY] proved Income Tax Returns of the deceased pertaining to Assessment Years 200506 (F.Y. 200405); 200607 (F.Y. 200506); 200708 (F.Y. 200607) and 200809 (F.Y. 200708) as Ex.PW3/1 (colly). As per Ex.PW3/1 (colly), the gross taxable income of the deceased for Assessment Year 200506 was Rs.1,19,157/ (Rs.1,09,798/ after deducting income tax); for Assessment year 200607, it was Rs.1,41,425/ (Rs.1,37,199/ after deducting income tax) and for Assessment Year 200708, it was Rs.99,434/. He also testified that the Income Tax Return for the Assessment Year 200809 was filed by the LRs of the deceased after the death of the deceased.
26. The bare perusal of the Income Tax Returns of the deceased for the F.Y. 2008 2009 reflects that the income of deceased in the year 200708 was Rs.3,90,461/. It was very vehemently argued by learned counsel for the petitioners that to assess the income of the deceased, this Tribunal should consider the net annual income of the deceased for the F.Y. 200708 as well. It was also urged that although, the deceased expired on 19.06.2008 and Income Tax Returns were filed subsequent to the death of the deceased, since the F.Y. 200708 ended on 31.03.2008, he had already earned/generated a gross income of Rs.3,90,461/ in the F.Y. 200708. It was also claimed that the deceased [ENTITY] had taken a substantial amount of loan in lakhs of rupees from various banks to meet the demands of his business and due to the said reason, there was a spurt in his income in the F.Y. 200708 which was reflected in the Income Tax Returns. The argument of learned counsel for the petitioners was resisted by the insurance companies by relying upon the judgments titled as [PRECEDENT]; [ENTITY] Vs. Pazhaniammal and Ors., 2012 ACJ 1370; [PRECEDENT] and [ENTITY] Vs. Ramilaben & Ors., 2018 ACJ 1986. It was thus, asserted that even if the income of the deceased had increased substantially in the F.Y. 200708, his income in the F.Y. 200708, same cannot be considered to assess his annual income, before this Forum.
27. The arguments of the learned counsels for the insurance companies not only find favour with this Tribunal but are also supported by the judgments cited by the insurance companies. In [PRECEDENT]. in [CASE NUMBER] (Arising Out of [CASE NUMBER]) , the Hon'ble Supreme Court upheld the observation of the Hon'ble High Court of Madras that the Income Tax Returns for the F.Y. 199697 should not be considered as the accident had taken place on 07.05.1997 and Income Tax Returns were filed on 23.06.1997. Subsequently, in [PRECEDENT] decided on 12.01.2017, it was held as under: "7. The question to be determined is with regard to loss of income to the claimants on account of death of [ENTITY]. In support of the claim for compensation, the claimants had placed on record income tax return for the year 19992000 at Exh. 31, in which the net income was shown as Rs.1,58,415. Subsequently as per Exh. 37, income tax returns for the years 199798 and 199899 were placed on record. It is not in dispute that the income tax return for the year 19992000 dated 6.9.1999 (Exh. 31) was filed after the death of [ENTITY]. In [PRECEDENT], the view taken by the High Court of not relying upon income tax returns that were filed after the death of the victim while determining his income has been approved. Similar view has been taken by Madhya Pradesh High Court in [ENTITY]; [ENTITY] and [PRECEDENT] (supra). Considering the aforesaid position of law, the submission made on behalf of the appellant that the income tax return for the year 19992000 ought to be excluded from consideration on the ground that the return was filed after the death of [ENTITY] deserves to be accepted. Therefore, the loss of income would have to be assessed on the basis of the income returns filed during the lifetime of [ENTITY]."
28. In view of the law laid down by the Apex Court and the High Courts, the Income Tax Returns of the deceased pertaining to the F.Y 200708 cannot be considered to assess the income of the deceased, as the same were filed on 31.08.2008 and the deceased expired on 19.06.2008. However, in view of the judgment titled as [ENTITY] Vs. Rekha Gupta, reported as 1996 (ACJ) 266 Delhi, average income on the basis of Income Tax Returns has to be taken into consideration. Since the net income of deceased for the Financial Years 200405, 200506 and 200607 was Rs.1,09,798/ ; Rs.1,37,199/ and Rs.99,434/ respectively, the average income of the deceased is assessed as Rs.1,15,477/ (Rupees One Lakh Fifteen Thousand Four Hundred and Seventy Seven) per annum.
Number of Dependants
29. PW1/Smt.[ENTITY] testified that all the petitioners namely [ENTITY] (father of deceased), [ENTITY] (wife of deceased), [ENTITY], [ENTITY] and [ENTITY] (daughters of the deceased) and [ENTITY] (son of deceased) were solely dependent upon her deceased husband. This fact was neither controverted nor contested by the insurance companies. Hence, for the purpose of ascertaining financial dependency on the deceased, all the petitioners are held to be the surviving dependant LRs of the deceased as on date of the accident.
30. Applying the criteria laid down in [ENTITY] (SUPRA), deduction in the income of the deceased towards his personal and living expenses would be 1/4th (onefourth) of his income.
Addition in the income towards future prospects
31. This issue was considered by the Hon'ble Supreme Court in the case of [ENTITY] & ORS.(SUPRA). Relevant paras of the judgment are reproduced here as under:
"58. The seminal issue is the fixation of future prospects in cases of deceased who is selfemployed or on a fixed salary. [ENTITY] (supra) has carved out an exception permitting the claimants to bring materials on record to get the benefit of addition of future prospects. It has not, per se, allowed any future prospects in respect of the said category.
59. Having bestowed our anxious consideration, we are disposed to think when we accept the principle of standardization, there is really no rationale not to apply the said principle to the selfemployed or a person who is on a fixed salary. To follow the doctrine of actual income at the time of death and not to add any amount with regard to future prospects to the income for the purpose of determination of multiplicand would be unjust. The determination of income while computing compensation has to include future prospects so that the method will come within the ambit and sweep of just compensation as postulated under [SECTION] of the Act. In case of a deceased who had held a permanent job with inbuilt grant of annual increment, there is an acceptable certainty. But to state that the legal representatives of a deceased who was on a fixed salary would not be entitled to the benefit of future prospects for the purpose of computation of compensation would be inapposite. It is because the criterion of distinction between the two in that event would be certainty on the one hand and staticness on the other. One may perceive that the comparative measure is certainty on the one hand and uncertainty on the other but such a perception is fallacious. It is because the price rise does affect a selfemployed person; and that apart there is always an incessant effort to enhance one's income for sustenance. The purchasing capacity of a salaried person on permanent job when increases because of grant of increments and pay revision or for some other change in service conditions, there is always a competing attitude in the private sector to enhance the salary to get better efficiency from the employees. Similarly, a person who is selfemployed is bound to garner his resources and raise his charges/fees so that he can live with same facilities. To have the perception that he is likely to remain static and his income to remain stagnant is contrary to the fundamental concept of human attitude which always intends to live with dynamism and move and change with the time.
Though it may seem appropriate that there cannot be certainty in addition of future prospects to the existing income unlike in the case of a person having a permanent job, yet the said perception does not really deserve acceptance. We are inclined to think that there can be some degree of difference as regards the percentage that is meant for or applied to in respect of the legal representatives who claim on behalf of the deceased who had a permanent job than a person who is selfemployed or on a fixed salary. But not to apply the principle of standardization on the foundation of perceived lack of certainty would tantamount to remaining oblivious to the marrows of ground reality.
And, therefore, degreetest is imperative. Unless the degreetest is applied and left to the parties to adduce evidence to establish, it would be unfair and inequitable. The degreetest has to have the inbuilt concept of percentage. Taking into consideration the cumulative factors, namely, passage of time, the changing society, escalation of price, the change in price index, the human attitude to follow a particular pattern of life, etc., an addition of 40% of the established income of the deceased towards future prospects and where the deceased was below 40 years an addition of 25% where the deceased was between the age of 40 to 50 years would be reasonable.
60. The controversy does not end here. The question still remains whether there should be no addition where the age of the deceased is more than 50 years. [ENTITY] thinks it appropriate not to add any amount and the same has been approved in [ENTITY]. Judicial notice can be taken of the fact that salary does not remain the same. When a person is in a permanent job, there is always an enhancement due to one reason or the other.
To lay down as a thumb rule that there will be no addition after 50 years will be an unacceptable concept. We are disposed to think, there should be an addition of 15% if the deceased is between the age of 50 to 60 years and there should be no addition thereafter. Similarly, in case of self employed or person on fixed salary, the addition should be 10% between the age of 50 to 60 years. The aforesaid yardstick has been fixed so that there can be consistency in the approach by the tribunals and the courts."
32. In view of the ratio of [ENTITY] (SUPRA), an addition of 25% of Rs.1,15,477/ is made towards future prospects in the income of the deceased. Thus, total annual income of the deceased after making an addition of future prospects would be Rs.28,869.25.
Loss of financial dependency
33. On the basis of facts and circumstances of this case and the material on record, total loss of financial dependency of the LRs of the deceased would be:
Rs.1,15,477 + Rs.28,869.25 (25% of Rs.1,15,477) = 1,44,346.25 Rs.1,44,436.25 x 1/4th (onefourth) = Rs.36,086.56 Rs.1,44,436.25 - 36,086.56 = Rs.108259.68 Rs.108259.68 x 14 (multiplier) = Rs.15,15,635.62 Thus, total loss of financial dependency is assessed as Rs.Rs.15,15,635.62/ (rounded off to Rs.15,16,000/) (Rupees Fifteen Lakhs Sixteen Thousand). Compensation under nonpecuniary heads:
34. In the judgment [ENTITY] (SUPRA), the Hon'ble Supreme Court did not agree with the view expressed in [PRECEDENT] and held that reasonable figures on conventional heads, namely loss of estate, loss of consortium and funeral expenses should be Rs.15,000/, Rs.40,000/ and Rs.15,000/ respectively. It also observed as under:
"The principle of revisiting the said heads is an acceptable principle. But the revisit should not be factcentric or quantumcentric. We think that it would be condign that the amount that we have quantified should be enhanced on percentage basis in every three year and the enhancement should be @ 10% in a span of three years."
35. Accordingly, petitioners are also entitled to compensation in the sum of Rs.15,000/ (Rupees Fifteen Thousand) towards funeral expenses; Rs.40,000/ (Rupees Forty Thousand) towards Consortium and Rs.15,000/ (Rupees Fifteen Thousand) towards loss of estate.
36. Total compensation is assessed as under:
SN Heads Amount (Rs.) 1 Loss of Financial Dependency 15,16,000 2 Funeral Expenses 15,000 3 Loss of Estate 15,000 4 Loss of Consortium 40,000 TOTAL 15,86,000
37. Accordingly, total compensation is assessed as Rs.15,86,000/ (Rupees Fifteen Lakhs Eighty Six Thousand).
LIABILITY
38. Admittedly, both the offending vehicles i.e. TSR bearing registration No.DL1RE 2435 and [ENTITY] bearing registration No.DL1LD3532 were duly insured by [ENTITY]/respondent No.3 and [ENTITY]/respondent No.6. However, it was claimed by respondent No.3/[ENTITY] that respondent No.1/[ENTITY], driver of TSR, did not have any valid driving licence as on the date of the accident. To substantiate its allegation, respondent No.3 examined Ms.[ENTITY], Admn.Officer, [ENTITY] as R3W1 who proved notice under [SECTION] [ACT] for production of driving licence, duly served upon respondent No.1/[ENTITY] as Ex.R3W1/A. R3W1/[ENTITY] also relied upon the certified copy of charge sheet (Ex.R6W1/8) as per which respondent No.1 was also chargesheeted under [SECTION] of [ACT] for not holding a valid driving licence. It is relevant to note here that respondent No.1 was proceeded exparte on 23.02.2016 and he neither crossexamined R3W1 nor stepped into the witness box. He also did not reply to the notice under [SECTION] [ACT] (Ex.R3W1/8) duly served upon him. In view of the said circumstances, the claim of the Insurance Company is proved that there was a conscious breach of the Insurance Policy by respondent No.2/[ENTITY] (registered owner) of the offending TSR as the driver [ENTITY]/respondent No.1 was driving the vehicle without valid Driving License.
39. The issue of liability of the Insurance Company towards third party in case of breach of the terms of Insurance Policy has been settled by the Hon'ble Supreme Court in [PRECEDENT] and [PRECEDENT] . According to the settled legal position, the liability of the Insurance Company visavis the third party is statutory and if the Insurance Company successfully proves conscious breach of the terms of the policy, then it would be entitled to recovery rights against the owner or the driver as the case may be.
40. Therefore, in view of the above legal position, liability of the respondent No.3/Insurance Company to satisfy the Award in the first instance is statutory because the offending vehicle was duly insured to cover third party risk. However, since respondent No.1/driver of the offending vehicle did not have a Driving License at the time of the accident, respondent No.3/Insurance Company, will be entitled to recover the amount of compensation (50% of total compensation amount) from respondent Nos.1 and 2 being the driver and registered owner of the offending TSR respectively by filing an execution petition in this very Award without having recourse to an independent civil proceedings.
41. So far as liability of respondent No.6/[ENTITY] is concerned, no evidence was led to prove that respondent No.4/[ENTITY], driver of offending [ENTITY] was not holding a valid driving licence on the date of accident.
42. Since it is proved that respondent No.4/[ENTITY], was the driver of offending [ENTITY] at the time of accident, hence, he is liable to pay compensation as he is equally responsible for the accident in which [ENTITY] lost his life.
43. Admittedly, respondent No.6/Insurance Company was the insurer of the offending [ENTITY] which was insured vide Policy bearing [CASE NUMBER] valid from 13.09.2007 to 12.09.2008 including the date of accident i.e. 19.06.2008. Therefore, respondent Nos.4, 5 and 6 are jointly and severally liable to pay 50% of the total compensation to the petitioners. However, since the offending [ENTITY] was duly insured to cover the third party risk, respondent No.6/Insurance company is under statutory liability to pay compensation to the petitioner. RELIEF
44. In view of above findings on Issue Nos.1 & 2, I award an amount of Rs.15,86,000/ (Rupees Fifteen Lakhs Eighty Six Thousand) as compensation to the petitioners. Petitioners are also entitled to interest @ 9% per annum from the date of filing of claim petition i.e. 03.12.2008 till realisation. Amount of Interim Award, if paid any, be deducted from the compensation amount.
45. Consequently, interest amount be paid to the petitioners along with award amount as per the terms and conditions mentioned in succeeding paragraphs. Apportionment
46. The shares of petitioners in the award amount shall be as under:
SN Name Relationship with Share in the award deceased amount 1 [ENTITY] Father 10% 2 Smt.[ENTITY] Wife 40% 3 [ENTITY] Married Daughter 10% 4 [ENTITY] Married Daughter 10% 5 [ENTITY] Son 15% 6 [ENTITY] Unmarried Daughter 15% Mode of payment and disbursement
47. Respondent Nos.3 and 6 viz. [ENTITY] and [ENTITY] shall deposit the award amount as per their shares within 30 days from the date of Award in the State Bank of India, Tis Hazari Branch, Delhi in the name of the petitioners under intimation to the petitioners and the Tribunal. In default of payment within the prescribed period, respondent Nos.3 and 6/Insurance Companies shall be liable to pay interest @ 12% p.a. for the period of delay till its realisation.
48. While making the deposit, Insurance Companies shall mention the particulars of this case, name of the Tribunal and the date of decision on the back side of the cheque. Insurance Companies shall also file copy of the award attested by its responsible officer in the bank at the time of deposit. Insurance Companies is further directed to place on record proof of deposit of the award amount, proof of delivery of notice to the petitioners in respect of deposit of the award amount and complete details in respect of calculation of interest etc. in the Tribunal within 30 days with effect from today.
49. Out of total award amount of Rs.15,86,000/ , a sum of Rs.3,86,000/ (Rupees Three Lakhs Eighty Six Thousand), be released to the petitioners in proportion to their shares mentioned above, immediately in their savings bank accounts in a nationalised bank. However, they can withdraw the money through withdrawal slips only.
50. In order to avoid the compensation money being frittered away, balance amount of Rs.12,00,000/ (Rupee Twelve Lakhs) as per shares as mentioned above would be kept in accordance with the order dt. 01.05.2018 passed by Hon'ble Mr.Justice [ENTITY] in [ENTITY] & ORS. VS. JAIBIR SINGH & ORS. IN FAO NO.842/2003 as per details mentioned herein:
(i) An amount of Rs.1,20,000/ (Rupees One Lakh Twenty Thousand) would be kept in 02 annual [ENTITY]s for Rs.60,000/ each viz. 1st [ENTITY] for one year and 2nd [ENTITY] for two years, with monthly interest in the name of petitioner No.1/[ENTITY] (father of deceased);
(ii) An amount of Rs.4,80,000/ (Rupees Four Lakhs Eighty Thousand) would be kept in 06 annual [ENTITY]s for Rs.80,000/ (Rupees Eighty Thousand) each viz. 1st [ENTITY] for one year and 2nd [ENTITY] for two years and so on, with monthly interest in the name of petitioner No.1/Smt.[ENTITY] (wife of deceased);
(iii) An amount of Rs.1,20,000/ (Rupees One Lakh Twenty Thousand) would be kept in 02 annual [ENTITY]s for Rs.60,000/ each viz. 1st [ENTITY] for one year and 2nd [ENTITY] for two years, with monthly interest in the name of petitioner No.3/[ENTITY] (married daughter of deceased);
(iv) An amount of Rs.1,20,000/ (Rupees One Lakh Twenty Thousand) would be kept in 02 annual [ENTITY]s for Rs.60,000/ each viz. 1st [ENTITY] for one year and 2nd [ENTITY] for two years, with monthly interest in the name of petitioner No.4/[ENTITY] (married daughter of deceased);
(v) An amount of Rs.1,80,000/ (Rupees One Lakh Eighty Thousand) would be kept in 03 annual [ENTITY]s for Rs.60,000/ (Rupees Sixty Thousand) each viz. 1st [ENTITY] for one year and 2nd [ENTITY] for two years and so on, with monthly interest in the name of petitioner No.5/[ENTITY] (son of deceased);
(v) An amount of Rs.1,80,000/ (Rupees One Lakh Eighty Thousand) would be kept in 03 annual [ENTITY]s for Rs.60,000/ (Rupees Sixty Thousand) each viz. 1st [ENTITY] for one year and 2nd [ENTITY] for two years and so on, with monthly interest in the name of petitioner No.6/[ENTITY] (daughter of deceased).
51. The following conditions are imposed with respect to the fixed deposits:
(a) Original [ENTITY]s be retained by the bank in its 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(s).
(a) The bank shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the victim i.e. the savings bank account(s) of the claimant(s) shall be individual savings bank account(s) and not a joint account(s).
(b) The original fixed deposits shall be retained by the bank in safe custody. However, the statement containing [ENTITY] number, [ENTITY] 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).
(d)The maturity amounts of the [ENTITY](s) be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant(s).
(e) No loan, advance or withdrawal or premature discharge be allowed on the fixed deposits without permission of the Court.
(f) The concerned nationalised bank shall not issue any cheque book and/or debit card to claimant(s). However, in case the debit card and/or cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount. The bank shall freeze the debit card(s) of the account of the claimant(s) so that no debit card be issued in respect of the account of the claimant(s) from any other branch of the bank.
(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 along with his PAN card before the Court on the next date fixed for compliance.
52. Copy of the Award be given to the parties free of costs.
53. Copy of this Award be also sent to concerned learned M.M. and DLSA.
54. [ENTITY] is directed to prepare a separate file for compliance and be put up on 04.02.2019.
55. Form IVA in accordance with order dt. 15.12.2017 in [ENTITY] (SUPRA) is annexed with the award in compliance of order of Hon'ble High Court of Delhi.
File be consigned to Record Room.
HEMANI MALHOTRA MALHOTRA Date: 2018.12.20 Announced in the open Court 15:54:34 +0530 on 20th December, 2018 ([ENTITY]) Judge, Motor Accident Claims Tribunal02, West District, Tis Hazari Courts, Delhi FORM IV A
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN DEATH CASES TO BE INCORPORATED IN THE AWARD
1. Date of accident 19.06.2008
2. Name of the deceased [ENTITY]
3. Age of the deceased 43 years
4. Occupation of the deceased Selfemployed
5. Income of the deceased Rs.1,15,477/ per annum
6. Name, age and relation of legal representatives of deceased:
SN Name Age Relation (i) [ENTITY] 75 years Father (ii) Smt.[ENTITY] 52 years Wife (iii) [ENTITY] 31 years Married daughter (iv) [ENTITY] 29 years Married daughter (v) [ENTITY] 24 years Son (vi) [ENTITY] 21 years Unmarried daughter COMPUTATION OF COMPENSATION SN Heads Awarded by the Claim Tribunal (Rs.) 7. Income of the deceased (A) 9,623.08 8. AddFuture Prospects (B) 2,405.77 9. LessPersonal expenses of the deceased (C) 3,007.21 10. Monthly loss of dependency 9,021.64 ( A+B)C = D 11. Annual Loss of dependency (D X 12) 1,08,259.68 13. Total loss of dependency (D X 12 X E = F) 15,15,635.62 (rounded off to Rs.15,16,000/) 14. Medical Expenses (G) 15. Compensation for loss of love and affection (H) 16 Compensation for loss of consortium (I) 40,000 17. Compensation for loss of estate (J) 15,000 18. Compensation towards funeral expenses (K) 15,000 19. Total Compensation (F+G+H+I+J+K = L) 15,86,000/ 20. RATE OF INTEREST AWARDED 9% p.a. 21. Interest amount up to the date of award (M) Rs.14,34,048/ 22. Total amount including interest (L+M) Rs.30,20,048/ 23. Award amount released Rs.3,86,000/ 24. Award amount kept in [ENTITY]s Rs.12,00,000/ 25. Mode of disbursement of the award amount to the [ENTITY]s claimant(s). (Clause 29) 26. Next Date for compliance of the award (Clause 31) 04.02.2019 HEMANI MALHOTRA MALHOTRA Date: 2018.12.20 15:54:42 +0530 ([ENTITY]) Judge, Motor Accident Claims Tribunal02, West District, Tis Hazari Courts, Delhi