[ENTITY].[ENTITY]. IN THE COURT OF SH. [ENTITY], JUDGE, MACT-1 (CENTRAL), THC, DELHI. Suit No. 25/2013 MACT No. 357469/2016 Unique Case ID No. DLCT01-001676-2013 1. Smt. [ENTITY] W/o Late Sh. [ENTITY] 2. Ms. [ENTITY] D/o Late Sh. [ENTITY] 3. Ms. [ENTITY] D/o Late Sh. [ENTITY] 4. Mst. [ENTITY] S/o Late Sh. [ENTITY] 5. Smt. [ENTITY] W/o Late Sh. Manphool (Mother of deceased) All R/o H. No. 659 & 660, Village Jurasi, PS Tauru, Jila Mewat, Haryana. Petitioners VERSUS 1. Sh. [ENTITY] S/o Sh. Hoshiyar Singh R/o Village Manjari Khurd, Tehsil-Behror, Alwar (Rajasthan). Respondent No.1
(Driver ) [CASE NUMBER] (Old Suit No. 25/13)PageNo.1of22 [ENTITY].[ENTITY].
2. Sh. [ENTITY] S/o Sh. Sunda Ram Yadav, R/o 89 Tekada Wala Mohalla Manchal Tehsil-Behror, Alwar (Rajasthan) Respondent No.2 (Owner)
3. The [ENTITY]
A-25/27, Asaf Ali road, New Delhi-110002.
Respondent No.3 (Insurer) Date of filing of Claim Petition : 16.01.2013 Arguments heard on : 22.02.2018 Date of passing of Award : 20.03.2018 Present: Mr. [ENTITY], Advocate, counsel for the petitioners Respondent No.1 is ex-parate
Sh. [ENTITY], Advocate, counsel for respondent No.2 Sh. [ENTITY], Advocate, counsel for respondent No.3 AWARD:
1. Present claim suit has been preferred by the petitioners under [SECTION] & [SECTION] of the [ACT] (in short MV Act) claiming a compensation of ` 80 lac in respect of fatal injuries caused to Mr. [ENTITY] in a motor vehicular accident that had taken place on 17/12/2012 within [CASE NUMBER] (Old Suit No. 25/13)PageNo.2of22 [ENTITY].[ENTITY].
the jurisdiction of PS Bilaspur, Gurgaon.
(i) Though the accident had not taken place within the jurisdiction of this Tribunal, yet claim suit has been filed before this Tribunal as respondent No.3 was working for gain in Delhi at the time of accident.
2. Facts in brief as emerged from the claim petition are that on 17/12/2012, deceased Mr. [ENTITY] was returning to home from his office on his motor cycle. It was alleged that at about 11 PM when he reached near Hanuamt petrol pump, Pathreri, Gurgaon, offending truck bearing registration No. RJ-14-GA-6230 came at high speed in a rash and negligent manner from Tauru side and hit the motor cycle of deceased. Consequently, deceased fell down and sustained fatal injuries. In this regard, an FIR No. 273/2012 for the offence punishable under [SECTION] [ACT] was also registered at PS Bilaspur, Gurgaon.
(i) It was alleged that the offending truck was being driven by respondent No.1 whereas it was registered in the name of respondent No.2 and same was insured with respondent no. 3.
3. Respondent nos. 2 & 3 contested the claim suit by filing their separate written statement.
(i) Respondent no. 2 took the plea that since the offending truck was duly insured with respondent No.3 and [CASE NUMBER] [ENTITY].[ENTITY].
respondent No.1 was having a valid licence at the time of accident, if there is any liability, respondent No.3 is liable to indemnify the said liability.
(ii) Respondent No. 3 admitted that the offending truck was duly insured with it, but took the plea that insurance company is entitled to take all statutory plea and during inquiry if it is found that there was any violation of any term and condition of the policy, insurance company would not be liable to pay any compensation.
(iii) Vide order dated 28/09/2013, respondent No.1 was proceeded ex-parate.
4. On the basis of pleadings of the parties, vide order dated 28/09/2013, following issues were framed:-
(i) Whether the deceased Shri [ENTITY] had died of injuries sustained by him in an accident which took place on 17.12.2012 at 11:00 PM within the jurisdiction of PS Bilaspur due to rash and negligent driving of vehicle bearing registration no.
RJ-14-GA-6230 by respondent no. 1?
(ii) Whether the petitioners are entitled to any compensation, if so, for what amount and from whom?
[CASE NUMBER] (Old Suit No. 25/13)PageNo.4of22 [ENTITY].[ENTITY].
(iii) Relief.
5. In order to prove their case, petitioners examined following witnesses:
PW1 Smt. [ENTITY], wife of deceased PW2 Sh. [ENTITY], proved the service/salary record of deceased PW3 Sh. [ENTITY], eye witness
(i) In rebuttal, respondent 2 examined himself as R2W1. Respondent No.3 did not examine any witness in rebuttal.
6. On completion of evidence led by both the parties, statement of petitioners were recorded on 23/08/2017 in compliance of clause 26 of [CASE NUMBER] titled [ENTITY] Tyagi & ors. vs. Jaivir Singh & ors. decided by Hon`ble High Court of Delhi on December 12, 2014 wherein petitioner No.1 testified that she needs between ` 35,000/- to ` 40,000/- per month for her household expenses; petitioner no.2 testified that she is pursuing her graduation and lives in a hostel and her monthly expenses is between ` 7,000/- to ` 8,000/- whereas petitioner No.5 testified that she needs between ` 10,000/- to ` 15,000/- per month. Petitioner No. 3 & 4 are still minor.
7. I have heard rival submissions advanced by [CASE NUMBER] (Old Suit No. 25/13)PageNo.5of22 [ENTITY].[ENTITY].
counsel for petitioners and respondent no. 2 & 3, perused the record carefully and gave my thoughtful consideration to their contentions.
8. My issue-wise findings are as under:-
Issue No. 1:
Whether the deceased Shri [ENTITY] had died of injuries sustained by him in an accident which took place on 17.12.2012 at 11:00 PM within the jurisdiction of PS Bilaspur due to rash and negligent driving of vehicles bearing registration no. RJ-14-GA-6230 by respondent no. 1?
FINDING:-
9. Learned counsel appearing for respondent No.2 contended that since respondent no.1 had been acquitted in criminal matter, it cannot be said that the alleged accident had taken place due to rashness and negligence of respondent No.1. However, this contention is opposed by counsel for the petitioners.
(i) Perusal of acquittal judgment Ex. R2W1/1 reveals that respondent no.1 was acquitted for want of sufficient evidence on the point of identity. There is nothing in the said judgment, which may show that there was no [CASE NUMBER] (Old Suit No. 25/13)PageNo.6of22 [ENTITY].[ENTITY].
rashness or negligence on the part of respondent No.1. Moreover, it is well settled law that standard of proof in claim matters is not as strict as in criminal matters; rather standard of proof in claim matters is less than that is required even in civil matters. Thus, mere fact that respondent no.1 had been acquitted in criminal matter is no ground to exonerate the respondents in this matter.
(ii) In order to prove rashness and negligence on the part of respondent No.1, petitioners examined PW3 Sh. [ENTITY].
(iii) PW3 testified in his examination-in-chief that on 17/12/2012, he and deceased were returning from office on their separate motor cycle. Deceased was some paces ahead to him. He testified that at about 11 PM, when they reached near Hanumat Petrol pump, Pahteri, the offending truck came at fast speed in a rash and negligent manner and hit the motor cycle of deceased. Consequently, he fell down and sustained injuries. In his cross-examination, he testified that the he was behind the deceased and distance between him and deceased was about 100 metres. He further deposed that there was a head on collision between the deceased and the truck. He clarified that though he was behind the deceased and distance was about 100 metres, but he had seen the accident and the same had taken place due to rashness and negligence of truck driver.
[CASE NUMBER] (Old Suit No. 25/13)PageNo.7of22 [ENTITY].[ENTITY].
(iii) From the testimony of PW3, it can safely be culled out that accident had taken place due to rashness or negligence of respondent No.1. Accordingly, issue no. 1 is decided in favour of petitioners and against the respondents.
Issue No.2 Whether the petitioners are entitled to any compensation, if so, for what amount and from whom?
10. Before proceeding further, I deem it appropriate to refer the judgment titled National Insurance Company Ltd. vs. [ENTITY] & ors. SLP (Civil) No. 25590 of 2014 decided by the Constitution Bench of Supreme Court on October 30, 2017. Hon`ble Bench reconsidered all the previous judgments relating to just compensation under [ACT] including [ENTITY] & ors. vs. DTC & another, 2009 (6) SCC 121; [ENTITY] & others vs. Madan Mohan & anr. (2013) 9 SCC 65 and [ENTITY] & others vs. Rajbir Singh & ors. (2013) 9 SCC
(i) After analyzing all the precedents, Hon`ble Bench held as under:-
61. In view of the aforesaid analysis, [CASE NUMBER] (Old Suit No. 25/13)PageNo.8of22 [ENTITY].[ENTITY].
we proceed to record our conclusions:-
(i) The two-Judge Bench in [ENTITY] should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in [ENTITY], a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench.
(ii) As [ENTITY] has not taken note of the decision in [ENTITY], which was delivered at earlier point of time, the decision in [ENTITY] is not a binding precedent.
(iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made.
The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.
(iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.
[CASE NUMBER] (Old Suit No. 25/13)PageNo.9of22 [ENTITY].[ENTITY].
(v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of [ENTITY] which we have reproduced herein-
before.
(vi) The selection of multiplier shall be as indicated in the Table in [ENTITY] read with paragraph 42 of that judgment.
(vii) The age of the deceased should be the basis for applying the multiplier.
(viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be ` 15,000/-, ` 40,000/- and ` 15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years.
11. In the light of aforesaid case law, facts of the case at hand shall be analysed to assess just compensation.
Loss Income of Deceased:
(i) Petitioners have filed the appointment letter and salary slip of deceased and Identity card of the deceased and same are Ex. PW2/1 to Ex.PW2/4 respectively. From the appointment letter Ex. PW2/1, it is clear that deceased had joined the company on 01/09/2010 as Incharge. From the salary slip Ex. PW2/3, it is clear that in November 2012, his gross salary was 18,068/- per month. Accordingly, annual [CASE NUMBER] (Old Suit No. 25/13)PageNo.10of22 [ENTITY].[ENTITY].
salary of deceased is assessed at ` 2,16,816/- ( ` 18,068/- X 12) Addition towards Future Prospects:-
(i) As per driving licence, date of birth of deceased was 01/01/1974. Since, the accident had taken place on 17/12/2012, it means that deceased was about 38 years old at the time of accident.
(ii) Since, deceased was below 40 years at the time of his death and working in private company and there is no evidence that he was a permanent employee and getting regular increments, in view of law laid down in [ENTITY]'s case (supra), petitioners are entitled 40% addition in the income of the deceased towards future prospects. In other words, petitioners are entitled for the addition of ` 86,726/-
in the income of deceased towards future prospects.
Deduction towards personal and living expenses of the deceased:-
(i). As per claim petition, deceased left behind 5 persons i.e. his wife (petitioner No.1), his minor children (petitioner No. 2 to 4) and his mother (petitioner No.5). There is nothing on record, which may show that mother of the deceased had any source of income. Accordingly, all are considered financially dependent on the income of the [CASE NUMBER] [ENTITY].[ENTITY].
deceased.
(i). Since five persons were dependent on the income of the deceased, in view of law laid down in [ENTITY]'s case and approved by the Apex Court in [ENTITY]'s case, 1/4rd income of the deceased is liable to be deducted towards personal and living expenses of the deceased.
Selection of multiplier:
(i) Since deceased was 38+ years at the time of his death, in view of law laid down in [ENTITY]'s case and approved by the Apex Court in [ENTITY]'s case, multiplier of 15 shall apply in this case.
Loss of income:-
(i) In view of the above, loss of income is calculated as under:
NAME OF THE HEAD AMOUNT (IN `) Annual Income of deceased 2,16,816 40% addition of towards future prospects 86,726 Total 3,03,542 Less 1/4rd deduction towards personal and 75,885 living expenses Total 2,27,657 [CASE NUMBER] (Old Suit No. 25/13)PageNo.12of22
[ENTITY].[ENTITY].
Total loss of income 34,14,855
12. Compensation under non-pecuniary heads:-
(i) In view of the law laid down in [ENTITY]'s case (supra), a sum of ` 15,000/- is awarded towards loss of estate; ` 40,000/- is awarded towards loss of consortium and ` 15,000/- is awarded towards funeral expenses. In total ` 70,000/- is awarded to the petitioners under the above said three heads.
(ii) Since, interest @ 9% per annum was awarded by the Apex Court in [PRECEDENT], it is held that claimants shall be entitled to interest @ 9% per annum from the date of filing of claim petition i.e. 16/01/2013 till realization of the amount.
(iii) Accordingly, claimants are entitled to compensation in respect of the death of deceased as under:
NAME OF THE HEAD AMOUNT (IN ` ) Loss of Income 34,14,855 Loss of estate 15,000 Loss of consortium 40,000 Funeral expenses 15,000 Total 34,84,855 [CASE NUMBER] (Old Suit No. 25/13)PageNo.13of22
[ENTITY].[ENTITY].
Round off: ` 34,85,000/-
(Rupees Thirty Four Lac & Eighty Five Thousands Only)
(iv) The claimants shall also be entitled to interest @ 9% per annum from the date of filing of claim petition i.e. 16/01/2013 till realization of the amount.
Apportionment of Award:
13. Since petitioner no. 1 is the wife of deceased, she will get 40% of the award amount. Petitioner no. 2 to 4 being the children of deceased and petitioner no. 5 being the mother of deceased shall get 15% each of the award amount. Their individual share is tabulated as under:
Name of the Relation Percentage Amount claimant with of (In ` ) deceased award amount Smt. [ENTITY] Wife 40% 13,94,000 Ms. [ENTITY] Daughter 15% 5,22,750 Ms. [ENTITY] Daughter 15% 5,22,750 Mr. [ENTITY] 15% 5,22,750 Mrs. [ENTITY] Mother 15% 5,22,750 DISBURSEMENT:
14. In view of statement of petitioners recorded in terms of clause 26 of [CASE NUMBER] titled [ENTITY] Tyagi v. Jaibir Singh and others decided by the High Court [CASE NUMBER] (Old Suit No. 25/13)PageNo.14of22 [ENTITY].[ENTITY].
of Delhi, on realization of the award amount, a sum of ` 94,000/- plus entire shall be released to petitioner No.1 and balance amount of her share i.e. ` 13,00,000/-, in terms of the directions contained in [CASE NUMBER] dated December 15, 2017, shall be put in 13 fixed deposits in her name in a nationalized bank of equal amount of ` 1,00,000/- each for a period of six months, one year, one and half year, two years, two and half years and so on. Besides the above said amount, amount of FDRs on maturity, shall automatically be transferred in her saving account maintained in a nationalized bank near the place of her residence without the facility of cheque book and ATM card. It is clarified that the amount shall be released to her only on submitting the copy of passbook of such saving account with endorsement of the bank that no cheque book facility and ATM card has been issued or if has been issued, same has been withdrawn and same shall not be issued without the prior permission of this Tribunal.
(ii) Since, petitioner No.2 has already attained the age of majority, thus, from the share of petitioner no. 2 & 5, on realization of the amount, a sum of ` 22,750/- each with entire interest shall be released to them and the balance amount of their share i.e. ` 5,00,000/- each in terms of the directions contained in [CASE NUMBER] dated December 15, 2017, shall be put in 05 fixed deposits of ` 1,00,000/- each for a period of six months, one year, one and half [CASE NUMBER] (Old Suit No. 25/13)PageNo.15of22 [ENTITY].[ENTITY].
year, two years, two and half years and so on in their name. Besides the above said amount, amount of FDRs on maturity, shall automatically be transferred in their saving account maintained in a nationalized bank near the place of their residence without the facility of cheque book and ATM card. It is clarified that the amount shall be released to them only on submitting the copy of passbook of such saving account with endorsement of the bank that no cheque book facility and ATM card has been issued or if has been issued, same has been withdrawn and same shall not be issued without the prior permission of this Tribunal.
(iii) Since petitioner no. 3 & 4 are still minor, their entire share with proportionate interest shall be kept in the form of FDRs in their name till they attain the age of majority. However, being the mother, petitioner no. 1 shall be entitled to draw interest on monthly or quarterly basis as she desires to meet the educational expenses of the petitioner no. 3 & 4. On attaining the age of majority, 20% of the maturity amount shall be released to them without any further direction from the Tribunal and the balance amount of FDR, in terms of the directions contained in [CASE NUMBER] dated December 15, 2017, shall be put in 05 FDRs of equal amount in their name for a period of six months, one year, one and half year, two years, two and half years and so on. Besides the above said amount, amount of FDRs on maturity, shall automatically be [CASE NUMBER] (Old Suit No. 25/13)PageNo.16of22 [ENTITY].[ENTITY].
transferred in their saving accounts maintained in a nationalized bank near the place of their residence without the facility of cheque book and ATM card. It is clarified that the amount shall be released to them only on submitting the copy of passbook of such saving account with endorsement of the bank that no cheque book facility and ATM card has been issued or if has been issued, same has been withdrawn and same shall not be issued without the prior permission of this Tribunal.
15. The above FDRs shall be prepared with the following conditions as enumerated by the Hon`ble High Court in [CASE NUMBER], titled Sobat Singh vs. Ramesh Chandra Gupta & ors and [CASE NUMBER] [ENTITY] Tyagi & ors vs. Jaivir Singh & ors decided on December 15, 2017:-
(i) The bank shall not permit any joint name(s) to be added in the saving account or fixed deposit account of the victims i.e. saving bank account(s) of the claimants shall be individual saving bank account and shall not a joint account.
(ii) Original fixed deposit shall be retained by the bank in safe custody. However, the statement containing FDR number, FDR amount, date of maturity and maturity amount shall be furnished by the bank to the claimants.
(iii) The monthly interest be credited by Electronic Clearing System(ECS) in the [CASE NUMBER] (Old Suit No. 25/13)PageNo.17of22 [ENTITY].[ENTITY].
saving bank account of the claimants near the place of their residence.
(iv) The maturity amount of the FDR be credited by the ECS in the saving bank account of the claimants near the place of their residence.
(v) No loan, advance or withdrawal or premature discharge be allowed on the fixed deposits without the permission of the court.
(vi) The concerned bank shall not issue any cheque book and/or debit card to claimants. However, in case the debit card and/cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount. The bank shall debit card(s) freeze the account of claimants so that no debit card be issued in respect of the account of claimants from any other branch of the bank. The bank shall make an endorsement on the passbook of the claimants 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 claimants shall produced the passbook with the necessary endorsement before the Tribunal for compliance.
16. In compliance of the directions given by Hon`ble High court in [CASE NUMBER] dated December 15, 2017, Summary of the Award in the prescribed format- IV A is as under:-
SUMMARY OF AWARD [CASE NUMBER] (Old Suit No. 25/13)PageNo.18of22 [ENTITY].[ENTITY].
(i) Date of accident 17/12/2012 (ii) Name of the Sh. [ENTITY] deceased (iii) Age of the injured 38+ years (iv) Occupation of the Private Job deceased (v) Income of the deceased ` 2,16,816/- per annum (vi) Name, age and relationship of legal representative of deceased: S.No. Name Age Relation 1. Smt. [ENTITY] 35 Yr. Wife 2. Ms. [ENTITY] 16 Yr. Daughter 3. Ms. [ENTITY] 14 Yr. Daughter 4. Mst. [ENTITY] 09 Yr. Son 5. Smt. [ENTITY] 59 Yr Mother COMPUTATION OF COMPENSATION S.No. Heads Awarded by the Claims Tribunal (IN `) 7. Income of the deceased (A) ` 2,16,816/- 8. Less Personal expenses of the 75,885 deceased (C) (1/4) 9. Monthly Loss of dependency NA (A+B)-C= D 10. Annual Loss of dependency NA 12. Total Loss of dependency 3414,855 [CASE NUMBER] (Old Suit No. 25/13)PageNo.19of22
[ENTITY].[ENTITY].
13. Medical Expenses (G) NA
14. Add-Future Prospects (B) 86,726
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 15,000/-
expenses (K) 19 TOTAL COMPENSATION 34,85,000 (F + G + H + I + J + K = L) (Rounded off) 20. RATE OF INTEREST AWARDED 9% 21. Interest amount upto to the date of 16,23,962 award (M) 05 yrs, 02 months & 04 days 22. Total amount including interest (L + M) 51,08,962 23. Award amount released As mentioned 24. Award amount kept in FDRs As mentioned
25. Mode of disbursement of the award In the form of amount to the claimant(s). (Clause 29) FDRs as mentioned in para No.14
26. Next Date for compliance of the award. 24.04.2018 (Clause 31) LIABILITY TO PAY:-
17. Since the offending vehicle was being driven by respondent No.1 and it was registered in the name of respondent No.2 whereas same was insured with respondent No.3, all are jointly and severally liable to pay compensation to the respondents.
[CASE NUMBER] (Old Suit No. 25/13)PageNo.20of22 [ENTITY].[ENTITY].
(i) In view of above, Issue No.2 is decided in favour of petitioner and against the respondent No.1 & 2.
[ENTITY]:
18. Since, the offending vehicle was insured with respondent No.3 (The [ENTITY]), respondent No.3 is directed to deposit the award amount of ` 34,85,000/- with interest @ 9 % per annum from the date of filing of petition i.e. 16/01/2013 till realization of the amount with [ENTITY] of this Tribunal within 30 days under intimation to the petitioners failing which the Insurance Company shall be liable to pay interest @ 12 % per annum for the period of delay beyond 30 days.
(i). Insurance company, driver and owner of the offending vehicle are also directed to place on record the proof of deposit of the award amount, proof of delivery of notice in respect of deposit of the amount to the petitioner/claimant and complete detail in respect of calculation of interest etc. within 30 days from today.
(ii) A copy of this judgment be sent to Respondent No.3 (The [ENTITY]), for compliance within the time granted.
(iii) [ENTITY] is directed to place a report on record [CASE NUMBER] (Old Suit No. 25/13)PageNo.21of22 [ENTITY].[ENTITY].
on April 24, 2018 in the event of non-receipt/deposit of the compensation amount within the time granted.
(iv) In terms of clause 31 & 32 of the judgment titled [ENTITY] Tyagi & others Vs. Jaibir Singh & Ors. decided by Hon`ble High Court on December 12, 2014, copy of this award be sent to the concerned court of Ld. Metropolitan Magistrate and Secretary DLSA, Central District for information and necessary action.
(v) File be consigned to Record Room.
Announced in open court on this 20th day of March, 2018 ([ENTITY]) Judge, MACT-1 (Central), THC, Delhi/sv [ENTITY] Date: 2018.03.20 JAIN 17:13:42 +0530 [CASE NUMBER] (Old Suit No. 25/13)PageNo.22of22