Delhi District Court
Bhanu Dec. Through Lrs vs Tushar on 7 March, 2025
IN THE COURT OF DR. RUCHI AGGARWAL ASRANI
PRESIDING OFFICER, MACT-01 (CENTRAL)
TIS HAZARI COURTS, DELHI.
DLCT010115062023
MACT No. : 738/2023
FIR No. : 311/2023
PS : Ranjit Nagar
u/s : 279/304A IPC
Sh. Bhanu @ Bhanu Partap (since deceased) through his legal heirs:-
1. Smt. Neelam
W/o Late Sh. Bhanu @ Bhanu Partap
2. Ms. Seema Singh
D/o Late Sh. Bhanu @ Bhanu Partap
3. Ms. Reema
D/o Late Sh. Bhanu @ Bhanu Partap
4. Master Vishal
S/o Late Sh. Bhanu @ Bhanu Partap
5. Ms. Laxmi
D/o Late Sh. Bhanu @ Bhanu Partap
6. Master Vikas
S/o Late Sh. Bhanu @ Bhanu Partap
All R/o Kukuri, Kukura, Post Bharawan,
Hardoi, Uttar Pradesh-241202
At present: T-627/4A, Road No. 20,
Baljeet Nagar, Patel Nagar, Delhi-110008.
......Petitioners
MACT No. 738/23 Bhanu Vs. Tushar and Anr. Page 1 of 41
Versus
1. Sh. Tushar (driver-cum-owner of the offending vehicle)
S/o Sh. Vinod Kumar
R/o RZ-125, Santosh Park,
Near Sunil Dairy, Uttam Nagar, Delhi.
2. ICICI Lombard General Insurance Co. Ltd.
at 315, IIIrd Floor, Aggarwal City, Mall Road,
Road No. 44, Delhi. ......Respondents
Date of filing of DAR : 16.08.2023
Judgment reserved on : 06.03.2025
Date of Award : 07.03.2025
AWAR D
The present Detailed Accident Report (DAR) was filed on
16.08.2023 and was registered as a Motor Accident Claim Petition. The
Road Traffic Accident in question took place on 30.04.2023 at about
11:30 P.M. under Shadipur Metro Station, Patel Road, Delhi. Mr.
Bhanu @ Bhanu Partap expired in the said accident. The said accident
was allegedly caused by the vehicle bearing registration No. DL-11-
L-0404 which was owned and driven by respondent No.1, Sh. Tushar
and insured with respondent no. 2, ICICI Lombard General Insurance
Co. Ltd.
Brief facts of the case:
2. Based on the facts outlined in the DAR, it emerges that on
01.05.2023, on receipt of the information of an accident vide GD No.
0007A, ASI Virender along with Ct. Krishan Burdak went to the spot of
the accident where they were informed that one motorcycle rider whileMACT No. 738/23 Bhanu Vs. Tushar and Anr. Page 2 of 41
riding his motorcycle at a very high speed, in rash and negligent
manner, had hit one pedestrian and the said motorcycle rider himself
had taken the injured pedestrian in an auto to RML Hospital and his
motorcycle was stationed at the spot of the accident. ASI Virender left
Ct. Krishan at the spot and immediately rushed to RML Hospital where
the injured was found under treatment vide MLC No. 83487/313184/23
whereupon the alleged history was mentioned as “RTA under Shadipur
metro station.” The injured was stated to be unfit for statement by the
doctors. ASI Virender returned to the spot of the accident where no eye
witness could be found. On the basis of the place of accident and the
MLC of the injured, the offence under Section 279/337 IPC was found
to have been committed and FIR No. 311/23 was registered at P.S.
Ranjit Nagar, accordingly.
3. During the course of investigation, the IO got the medical
examination of the motorcycle rider namely Tushar and seized his blood
sample for alcohol and deposited it in the Malkhana. He also prepared
the site plan, seized the offending vehicle and deposited the same with
Malkhana of the police station.
4. During investigation, ASI Virender received the
information from RML Hospital vide DD No. 15A that the injured
Bhanu had expired during his treatment and therefore, Section 337 IPC
was replaced with Section 304A IPC. As the matter was pertaining to
fatal injury, the matter was transferred to MACT Cell for further
investigation and further investigation was assigned to SI Prasanna K.
Kumar who got the postmortem of dead body of the deceased conductedMACT No. 738/23 Bhanu Vs. Tushar and Anr. Page 3 of 41
and then, handed over the dead body to its relatives for last rites. After
postmortem, the IO seized the blood sample of the deceased for alcohol
and deposited the same in the malkhana.
5. During the course of further investigation, the IO served the
notice under Section 133 M.V. Act upon the owner of the offending
vehicle who replied in writing that at the time of the accident, he was
riding his motorcycle. The IO arrested the owner-cum-driver of the
offending vehicle. Since the offence was bailable, he was released on
police bail on furnishing of bail bonds. The owner of the offending
vehicle produced the documents relating to offending vehicle.
6. During further course of investigation, the IO got the
documents pertaining to the offending vehicle verified from the
concerned authorities. He also got conducted the mechanical inspection
of the offending vehicle and motorcycle and obtained the report. He
deposited the blood samples of the deceased and the driver with FSL.
On completion of investigation, the chargesheet for the offences u/s
279/304A IPC was filed with respect to respondent no.1, Tushar before
the concerned Ld. JMFC and the DAR was filed before this Tribunal.
Later, the IO had also filed supplementary chargesheet along with FSL
report before the court of Ld. JMFC and also filed a copy thereof in the
present petition.
Written statements:
7. Respondent no. 1 had filed his written statement on
17.10.2023 and the reply on behalf of respondent no. 2 was filed on
MACT No. 738/23 Bhanu Vs. Tushar and Anr. Page 4 of 41
03.11.2023.
ISSUES FRAMED
8. On the basis of the pleading of the parties, vide order dated
03.11.2023, this Tribunal had framed the following issues:
i. Whether deceased Bhanu suffered fatal injuries in an accident that
took place on 30.04.2023 at about 11.30 P.M. under Shadipur Metro
Station, Patel Road, Ranjit Nagar, Delhi involving vehicle bearing
registration No. DL-11-L-0404 driven rashly & negligently as well as
owned by the Respondent No.1 Tushar? OPP.
ii. Whether the petitioners are entitled for compensation? If so, to
what amount and from whom? OPP.
iii. Relief.
EVIDENCE
9. The petitioners examined Smt. Neelam as PW-1 and IO SI
Prasanna as PW-2. Petitioner’s evidence was closed vide order dated
10.07.2024. Respondent no.1 examined Mr. Kunal Raj Verma as
R1W-1 and respondent no.2 examined Ms. Diksha Manhas, Legal
Manager as R2W-1.
10. The petitioners had filed Form XIII. Financial statements of
the petitioners were recorded and final arguments were heard on behalf
of the petitioners and the respondents.
FINDINGS & OBSERVATIONS
11. Before delving into the facts of the current case to decide
MACT No. 738/23 Bhanu Vs. Tushar and Anr. Page 5 of 41
the aforementioned issues, it is pertinent to highlight that it is firmly
established in legal precedents that the proceedings conducted before the
Claims Tribunal are in the nature of an inquiry. Further, procedural
approach adopted by an accident claims’ tribunal mirrors that of a civil
court (National Insurance Co. Ltd. vs. Smt. Pushpa Rana & Ors. 2009
ACJ 287). In civil proceedings, the establishment of facts hinges on a
preponderance of probabilities, rather than being bound by the strict
rules of evidence or the higher standard of beyond reasonable doubt, as
required in criminal cases. The burden of proof in civil cases is lighter
than in criminal cases, and the burden to decide claim petition under The
Motor Vehicles Act is even lesser as compared to a civil litigation. In
Bimla Devi & Ors. v. Himachal Road Transport Corporation & Ors
(2009) 13 SC 530, it has been held by Hon’ble Supreme Court of India
that negligence must be decided on the touchstone of preponderance of
probabilities and a holistic view must be adopted in reaching a
conclusion.
12. Keeping in mind the aforementioned legal principle for
adjudicating the present issue, this Tribunal has thoroughly gone through
the testimony of the witnesses and all the material available on record.
Also, careful consideration has been given to the arguments addressed
by the Learned Counsels for all the parties.
ISSUE NO. 1:
Whether deceased Bhanu suffered fatal injuries in an accident that
took place on 30.04.2023 at about 11.30 P.M. under Shadipur Metro
Station, Patel Road, Ranjit Nagar, Delhi involving vehicle bearing
registration No. DL-11-L-0404 driven rashly & negligently as well asMACT No. 738/23 Bhanu Vs. Tushar and Anr. Page 6 of 41
owned by the Respondent No.1 Tushar? OPP.
The factum of accident:
13. In this matter, to prove the occurrence of the accident, the
wife of the deceased who is the petitioner no. 1 in this case examined
herself as PW-1 who deposed in her evidence by way of affidavit
Ex.PW1/A as under:-
“1. …
2. That on 30.04.2023 Bhanu (deceased) after
complete his duty came back to his house at about
11.30 P.M. when he reached near Shadipur Metro
Station in the meantime a TVS Apache Motorcycle
bearing No. DL-11L-0404 which was being driven
by its driver in a rash and negligent manner and in
very high speed and hit my husband due to this
forceful impact my husband fell down on the road
and sustained multiple grievous injuries and he was
brought to RML Hospital by the driver of the
offending vehicle and during his treatment he was
expired on 01.05.2024 and his post mortem was
conducted by the doctors of the said hospital.
3. That the said accident was occurred due to the
rash and negligent driving of the driver of the
offending vehicle.
4. That at the time of accident my husband was
doing private job and getting salary Rs. 20,000/-
p.m. and we all the family members were fully
depend upon the salary of my husband.
5. That my husband namely Late Sh. Bhanu left
behind myself petitioner no. 1 (wife of the deceased)
and petitioners no. 2 Seema (unmarried daughter of
deceased), petitioner no. 3 Reema (unmarried
daughter of deceased, Petitioner No. 4 Vishal
(unmarried son of deceased), petitioner no. 5 Laxmi
(unmarried daughter of deceased) and petitioner no.
6 Vikas (unmarried son of deceased) and there is noMACT No. 738/23 Bhanu Vs. Tushar and Anr. Page 7 of 41
other legal heir of the deceased.
6. That due to the said accident we have suffered
great mental pain and agony, loss of future prospects
loss of love and affection loss of shelter, loss of
income, pecuniary and non-pecuniary loss.
7. That I am tendering the following documents:
i. Copy of Aadhar Card (are Ex. PW-1/1 colly. 6
sheets) (OSR)ii. Copy of PAN Card of petitioner no. 1 & 2 are Ex.
PW-1/2iii. Copy of Aadhar Card of deceased is Ex. PW-1/3
iv. Copy of complete DAR are Ex. PW-1/4 (Colly.)
8. That the said accident was occurred within the
jurisdiction of P.S. Ranjit Nagar vide FIR No.
311/2023, u/s 279/304A IPC. The concerned
IO/SHO of the case has filed the DAR before this
Hon’ble Court with attested copy of the criminal
record.
…”
14. The petitioners also examined IO SI Prasanna as PW-2 who
deposed as under:
“I am the second IO in the present case. I got
information of the accident in question from the
first IO SI Virender Kumar. In the meantime, the
first IO handed over the file and the driver of the
offending vehicle to me. Thereafter, I arrested the
driver of the offending vehicle. The driver/owner of
the offending vehicle had himself called at 112
number and informed that his vehicle had met with
an accident and hit the two wheeler i.e. motorcycle
of the deceased. The driver of the offending vehicle
had taken the injured to the hospital. I had served
notice under Section 133 M.V. Act in which he
admitted that the accident in question had taken
place with his vehicle.”
MACT No. 738/23 Bhanu Vs. Tushar and Anr. Page 8 of 41
15. PW-1 who is the wife of the deceased has categorically
deposed regarding the factum of the accident and that her husband
expired in the said accident on 30.04.2023. She testified that on
30.04.2023 at about 11:30 PM, after finishing his duty, the deceased
Bhanu was coming back to his house and when he reached near
Shadipur Metro Station, a TVS Apache Motorcycle bearing registration
no. DL-11L-0404 which was being driven by its driver in a rash and
negligent manner and at very high speed, hit her husband. She further
deposed that due to this forceful impact, her husband fell down on the
road and sustained multiple grievous injuries and he was taken to RML
Hospital by the driver of the offending vehicle. She also deposed that
during his treatment, he expired on 01.05.2024 and his post mortem was
conducted by the doctors of the said hospital.
16. Ld. Counsel for the petitioner argued that since, the
petitioner has categorically proved that respondent no. 1 was driving the
offending vehicle in a rash and negligent manner due to which the
accident took place and her husband/ the deceased suffered fatal injuries,
the claim petition be allowed. On the other hand, Ld. Counsel for
respondent no. 1 argued that the involvement of the offending vehicle is
highly doubtful and to prove that, there was no eye witness. He argued
that PW-1 has admitted that she is not the eye witness and there is no
evidence on record to prove that the accident was caused by respondent
no. 1. He also submitted that Mr. Kunal Raj Verma was accompanying
the respondent no. 1 as a pillion rider on 30.04.2023 and he has deposed
as R1W1 that no accident took place on the said date. He has deposed in
evidence by way of affidavit as follows:
MACT No. 738/23 Bhanu Vs. Tushar and Anr. Page 9 of 41
“…2. That on 30/04/2023 at about 11 p.m. [night] I
was accompanying Tushar however when we both
reached near Rajender Place Delhi the Motor Cycle
of Tushar slipped due to pothole on road and we
both fell on road resulting in injuries to us so I hired
Auto Riksha and left for my home because Motor
Cycle was damaged and non workable.”
17. Ld. Counsel for respondent no. 1 argued that there is no
document on record to prove that the offending vehicle DL-11L-0404
had caused the accident. He further pointed out that there is no CCTV
footage or eye witness to the accident in question and PW-1 and the IO
have specifically deposed so in their respective evidence.
18. Perusal of the testimony of R1W-1 shows that while he has
mentioned that respondent no. 1 and him were on the offending vehicle
on the alleged date and time of accident but he has also stated that their
motor cycle had slipped. While in his examination in chief, he has stated
that he had gone home, in his cross-examination, he has stated that he
had gone to Pahari hospital. Further, no MLC or any other medical
document has been placed on record by R1W1 to prove that he had gone
to the hospital. It cannot be denied that R1W1 is an interested witnesss
being the friend of respondent no. 1 and clearly, the discrepancy as to
whether he had gone home or to the hospital is a material discrepancy
that raises serious doubt as to the veracity of his version.
19. Also, it is the case of respondent no. 1 that he has been
falsely implicated and he had gone to RML hospital for his medical
treatment where the police officials had used his motor vehicle to fill in
the loopholes in their case. However, it is not understandable as to why
would R1W1 go to Pahari hospital and respondent no. 1 go to RML
MACT No. 738/23 Bhanu Vs. Tushar and Anr. Page 10 of 41
hospital. Further, respondent no. 1 who was the driver of the vehicle,
would have been the most crucial witness capable of refuting the
petitioner’s allegations of the occurrence of the accident and rash and
negligent driving. However, he did not step into the witness box. Thus,
adverse inference is drawn against respondent no. 1. In this regard,
reliance is placed on the judgments of Hon’ble High Court of Delhi in
the cases of Teja Singh Vs Suman & Ors., MAC. APP. 1111/2018 & CM
APPL. 52384/2018, 52386/2018, date of decision 06/12/2019; MAC.
APP. 428/2018, titled as The Oriental Insurance Co. Ltd. Vs Kamla Devi
& Ors, date of decision 08.11.2019 and MAC. APP. 690/2017 & CM
APPL. 28108/2017, titled as Reliance General Insurance Company Ltd.
Vs Mona & Ors., date of decision 15.10.2019, which had relied upon the
judgment in the case of Cholamandalam Insurance Co. Ltd. Vs Kamlesh
2009(3) AD Delhi 310.
20. Also, as far as the criminal case is concerned, it is settled
law that the standard of proof in criminal cases is much higher while in
MACT cases, it is balance of probabilities. In the case of Mangla Ram
vs. The Oriental Insurance Company Ltd. AIR 2018 SC 1900, Hon’ble
Supreme Court has opined that the key-point of negligence of the driver
as set up by the Claimants, is required to be decided on the touchstone
of preponderance of probabilities and not by the standard of proof
beyond reasonable doubt. Thus, filing of Chargesheet against the driver
of the offending vehicle prima facie, points towards the complicity in
driving the vehicle negligently and rashly.
21. Further, in the present case, the respondent no. 1 has not led
MACT No. 738/23 Bhanu Vs. Tushar and Anr. Page 11 of 41
any evidence to prove that the alleged offending vehicle was not
involved in the present accident or that he was not driving the same. On
the other hand, PW-1 has unequivocally testified that the accident was
caused by the offending vehicle which was being driven at a very high
speed, rashly and negligently without caring for the traffic rules which
led to the accident in question.
22. Moreover, the petitioner had no prior acquaintance with
respondent no. 1 before the accident, and it is undisputed that there
existed no pre-existing animosity between them. Therefore, it defies
every logic as to why the petitioner would falsely implicate respondent
no. 1 if he was not the one driving the offending vehicle. No convincing
material has been brought on record by the respondents to show that no
accident took place or that respondent no. 1 was not rash and negligent
while driving the offending vehicle.
23. It is also settled law that the petitioner cannot be expected
to prove the accident to the hilt and the principle of res ipse loquitor
should apply which means that the “accident speaks for itself”. Thus,
once it has been established in DAR and chargesheet that the accident
had taken place, the burden shifts on respondent no. 1 to prove that he
was not responsible for the accident which the respondent has clearly
failed to discharge. Also, the mechanical inspection report of the
offending vehicle shows that there was fresh damage on the vehicle.
Thus, the factum of accident and the identity of respondent no. 1 as
driver of the offending vehicle stands established. Therefore, from the
testimony of PW-1 and entire record, it stands proved that respondent
MACT No. 738/23 Bhanu Vs. Tushar and Anr. Page 12 of 41
no. 1 acted in a rash and negligent manner while driving his vehicle due
to which the petitioner suffered grievous injuries.
24. Furthermore, it was held in the case National Insurance Co.
Vs. Pushpa Rana & Ors. 2009 ACJ 287 Delhi that filing of Chargesheet
is sufficient proof of the negligence and involvement of the Offending
Vehicle. In the case at hand, charge-sheet for the offences u/s 279/304A
IPC and other relevant documents have been filed against the respondent
no.1. Therefore, keeping in view the law laid down in the case of Pushpa
Rana (supra) as well as considering the testimonies of PW-1, PW-2 and
R1W1 and other documents on record, respondent no. 1, Tushar (driver
cum owner of the offending vehicle) is held to be negligent on the basis
of preponderance of probability. From the record, it also stands
established that the offending vehicle was insured with respondent no. 2,
ICICI Lombard General Insurance Co. Ltd. vide policy no.
3005/TV-16944863/00/000 valid from 15.02.2022 to 14.02.2027. The
factum of insurance is admitted by the insurance company.
The injury:
25. The MLC no. E-83487 dated 01.05.2023 issued by Dr. Ram
Manohar Lohia Hospital shows that the alleged history has been
mentioned as road traffic accident. Further, the post mortem report no.
306/23 dated 01.05.2023 issued by Atal Bihari Vajpayee Institute of
Medical Science, Delhi reveals that the “Alleged history of RTA on
30/04/2023 at 11:30 pm nearby Shadipur metro station [vide FIR No.
0311 dated 01/05/2023, PS-Ranjit Nagar]. The deceased was brought to
Dr. RML Hospital on 01/05/2023 at 12:10 am and was admitted [vide
MACT No. 738/23 Bhanu Vs. Tushar and Anr. Page 13 of 41
MLC-E/83487. Later he expired during the course of treatment on
01/05/2023 at 03:10 am [vide MLC death summary Cr No. 20238805].
Subsequently, the body was shifted to Dr. RML Hospital mortuary for
preservation and postmortem examination. It has been further mentioned
that “The cause of death is cranio-cerebral injuries consequent upon
blunt force impact to the head.” All the injuries were opined to be ante
mortem in nature, fresh in duration, caused by blunt force impact and
possible in a road traffic accident. Thus, it stands established that
deceased Bhanu had expired on account of injuries sustained by him in
the accident in question.
Contributory negligence:
26. Ld. Counsel for respondent no. 2 argued that the accident
occurred due to the sole negligence of the deceased because he was
heavily drunk and was crossing the road without using zebra crossing.
He, therefore, submitted that the deceased is solely responsible for the
accident and the respondent is not liable to pay any compensation to the
petitioners.
27. To controvert the stand of respondent no. 2, Ld. Counsel for
the petitioners argued that the deceased was not drunk at the time of the
accident and that the accident occurred due to rashness and negligence
of respondent no.1 as he was riding his motorcycle under the influence
of alcohol. He urged that the deceased was not negligent and thus, no
negligence can be attributed upon him.
28. Respondent no. 2 has examined Ms. Diksha Manhas as
MACT No. 738/23 Bhanu Vs. Tushar and Anr. Page 14 of 41
R2W-1 who has proved the FSL report as Ex. R2W1/3 wherein it is
mentioned that 50.2 mg of alcohol content per 100 ml was found in the
blood of the petitioner. Further, PW-1 has also admitted in her cross-
examination that there was no zebra crossing from where the deceased
was crossing the road. Therefore, it is concluded that the deceased was
in an intoxicated condition at the time of the accident and had consumed
alcohol much above legally permissible limit. Therefore, considering the
entire facts and circumstances of the case, the deceased is held to be
negligent to the extent of 25% in causing the accident in question.
ISSUE No. 2
Whether the petitioners are entitled for compensation? If
so, to what amount and from whom? (OPP.)
29. The petitioners are certainly entitled for compensation in
view of the decision of issue No.1 above. They are claiming a total
compensation to the tune of Rs. 37,72,616/- (as per form XIII) from the
respondents. I have considered the evidence on record and perused the
entire record.
30. The general principles relating to computation of
compensation in MACT cases were laid down by the Hon’ble Supreme
Court in the case of Sarla Verma & Others Vs. Delhi Transport
Corporation & Another (2009) 6 Supreme Court Cases 121 which were
reiterated by the Constitution Bench of Hon’ble Supreme Court in the
case of National Insurance Company Vs. Pranay Sethi & Ors. decided
on 31.10.2017. The same are as under:
“…18. Basically only three facts need to be
MACT No. 738/23 Bhanu Vs. Tushar and Anr. Page 15 of 41
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.
The 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 well settled steps:
Step 1
(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.
Step 2
(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 beMACT No. 738/23 Bhanu Vs. Tushar and Anr. Page 16 of 41
chosen from the said table with reference to the age
of the deceased.
Step 3
(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…..” .
Age determination of the deceased:
31. Applying the principles settled in the case of Sarla Verma
(supra) and Pranay Sethi (supra) to the facts of the present case, the first
aspect to be determined is the age of the deceased. According to the
petitioners, the deceased Bhanu was aged 42 years old at the time of the
accident. The Aadhar card bearing no. 8198 4131 5353 of the deceased
Bhanu shows that his date of birth is 01.01.1981. Thus, the deceased
Bhanu was aged 42 years 03 months and 29 days at the time of accident
on 30.04.2023. Thus, it is concluded that the age of the deceased was
more than 42 years old at the time of accident but less than 43 years.
Hence, applying the criteria laid down in the case of Sarla Verma Vs.
DTC (Supra) the multiplier applicable according to the age of deceased,
MACT No. 738/23 Bhanu Vs. Tushar and Anr. Page 17 of 41
would be fourteen (14) as he was within the age bracket of 41 to 45
years.
Income of the deceased:
32. The petitioners have claimed that the deceased Bhanu was
working as a cook in a hotel and was earning Rs. 18,993/- per month.
However, the petitioners have not filed any document to show that the
deceased used to work as a cook or that he was earning Rs. 18,993/- per
month. Thus, the income of the deceased will have to be assessed as per
the minimum wages. As per the Aadhar card of the deceased Bhanu, he
was a resident of Uttar Pradesh but no educational qualification or
special skill has been placed on record. Therefore, in the absence of
proof of employment and income and considering his address to be of
Uttar Pradesh, the minimum wages for an unskilled labour prevalent in
Uttar Pradesh at the time of the accident (on 30.04.2023) i.e. Rs.
10,089/- is taken as the income of the deceased Bhanu. Therefore, it is
held that the monthly income of the deceased Bhanu at the time of the
accident i.e. on 30.04.2023 was Rs. 10,089/-.
Personal deductions:
33. As regards the aspect of deduction towards personal living
expenses of the deceased is concerned, it is an admitted case of the
petitioners and also evident from the DAR that the deceased Bhanu had
left behind his six legal heirs i.e. his wife, Neelam (aged about 50
years); unmarried daughter, Seema Singh (aged about 23 years);
unmarried daughter, Reema (aged about 16 years); unmarried son,
MACT No. 738/23 Bhanu Vs. Tushar and Anr. Page 18 of 41
Vishal (aged about 15 years); unmarried daughter, Laxmi (aged about
13 years); and unmarried son, Vikas (aged about 10 years). It is also
claimed that all the petitioners were fully dependent upon the income of
the deceased as all the children were studying. Since, all the children
were studying and unmarried, they are considered as dependents upon
the income of the deceased. Thus, in view of the settled proposition of
law as laid down in the case of Sarla Verma & Others Vs. Delhi
Transport Corporation & Another (Supra), the deductions in the income
of the deceased towards his living and personal expenses would be one
fourth of his income (there being six dependents of the deceased).
34. Further, by adopting the principles laid down in the case of
National Insurance Co. Ltd. Vs. Pranay Sethi & Ors. 2017 ACJ 2700
(SC), the future prospects of the deceased Bhanu shall be 25% as he was
above the age of 40 years and less than 50 years at the time of accident
on 30.04.2023.
Compensation under non-pecuniary heads:
35. The case of National Insurance Co. Ltd. Vs. Pranay Sethi &
Ors. 2017 ACJ 2700 (SC) was considered and clarified by the Hon’ble
Apex Court in the case of Magma General Insurance Company Ltd. Vs.
Nanu Ram @ Chuhru Ram & Ors. Civil Appeal No. 9581/2018 decided
on 18.09.2018 whereby after considering the case of Pranay Sethi’s
(supra), Hon’ble Supreme Court was pleased to award loss of
consortium of Rs. 40,000/- to each dependent of the deceased and
further pleased to award a compensation of Rs.50,000/- to each
MACT No. 738/23 Bhanu Vs. Tushar and Anr. Page 19 of 41
dependent of the deceased towards loss of love and affection. The
relevant portion is as under:
“…… A Constitution Bench of this Court in Pranay
Sethi (supra) dealt with the various heads under
which compensation is to be awarded in a death
case. One of these heads is Loss of Consortium.
In legal parlance, “consortium” is a compendious
term which encompasses ‘spousal consortium’,
‘parental consortium’, and ‘filial consortium’.
The right to consortium would include the company,
care, help, comfort, guidance, solace and affection of
the deceased, which is a loss to his family. With
respect to a spouse, it would include sexual relations
with the deceased spouse.
Spousal consortium is generally defined as rights
pertaining to the relationship of a husband wife
which allows compensation to the surviving spouse
for loss of “company, society, cooperation, affection,
and aid of the other in every conjugal relation.”
Parental consortium is granted to the child upon the
premature death of a parent, for loss of “parental aid,
protection, affection, society, discipline, guidance
and training.”
Filial consortium is the right of the parents to
compensation in the case of an accidental death of a
child. An accident leading to the death of a child
causes great shock and agony to the parents and
family of the deceased. The greatest agony for a
parent is to lose their child during their lifetime.
Children are valued for their love, affection,
companionship and their role in the family unit.
Consortium is a special prism reflecting changing
norms about the status and worth of actual
relationships. Modern jurisdictions world-over have
recognized that the value of a child’s consortium far
exceeds the economic value of the compensation
awarded in the case of the death of a child. Most
jurisdictions therefore permit parents to be awarded
compensation under loss of consortium on the death
MACT No. 738/23 Bhanu Vs. Tushar and Anr. Page 20 of 41
of a child. The amount awarded to the parents is a
compensation for loss of the love, affection, care and
companionship of the deceased child.
The Motor Vehicles Act is a beneficial legislation
aimed at providing relief to the victims or their
families, in cases of genuine claims. In case where a
parent has lost their minor child, or unmarried son or
daughter, the parents are entitled to be awarded loss
of consortium under the head of Filial Consortium.
Parental Consortium is awarded to children who lose
their parents in motor vehicle accidents under the
Act.
A few High Courts have awarded compensation on
this count. However, there was no clarity with
respect to the principles on which compensation
could be awarded on loss of Filial Consortium.
The amount of compensation to be awarded as
consortium will be governed by the principles of
awarding compensation under ‘Loss of Consortium’
as laid down in Pranay Sethi (supra).
In the present case, we deem it appropriate to award
the father and the sister of the deceased, an amount
of Rs.40,000 each for loss of Filial Consortium…..”.
36. However, in the case of United India Insurance Company
Ltd. Vs. Satinder Kaur @ Satwinder Kaur 2020 SCC Online SC 410 the
Hon’ble Supreme Court has observed that there is no justification to
award compensation towards loss of love and affection as a separate
head. The relevant portion of the observations are reproduced as under:
“…… The amount to be awarded for loss consortium
will be as per the amount fixed in Pranay Sethi
(supra). At this stage, we consider it necessary to
provide uniformity with respect to the grant of
consortium, and loss of love and affection. Several
Tribunals and High Courts have been awarding
compensation for both loss of consortium and loss of
love and affection. The Constitution Bench inMACT No. 738/23 Bhanu Vs. Tushar and Anr. Page 21 of 41
Pranay Sethi (supra), has recognized only three
conventional heads under which compensation can
be awarded viz. loss of estate, loss of consortium
and funeral expenses.
In Magma General (supra), this Court gave a
comprehensive interpretation to consortium to
include spousal consortium, parental consortium, as
well as filial consortium. Loss of love and affection
is comprehended in loss of consortium.
The Tribunals and High Courts are directed
to award compensation for loss of consortium, which
is a legitimate conventional head. There is no
justification to award compensation towards loss of
love and affection as a separate head…”.
37. In the Pranay Sethi case (supra), the Hon’ble Supreme
Court had held that the 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, with
enhancement at the rate of 10% in a span of three years. By applying
the said principles and law laid down in Satinder Kaur @ Satwinder
Kaur case (supra), a sum of Rs. 18,150/- is awarded under each head of
Loss of Estate and funeral expenses and a sum of Rs. 48,400/- each is
awarded to all the petitioners towards Loss of Consortium.
Computation of compensation:
38. Applying the settled guidelines in the various judgments,
the compensation payable to the petitioners is calculated as under:
Sr. Head Awarded by the Claims
No. Tribunal
1 Monthly Income of deceased (A) Rs. 10,089/-
MACT No. 738/23 Bhanu Vs. Tushar and Anr. Page 22 of 41
2 Add future prospect (B) @ 25%= 2,522.25/-
3 Less 1/4 deductions towards (10,089 + 2,522.25) 1/4=
personal and living expenses of Rs. 3,152.81/-
the deceased (C)
4 Monthly loss of dependency (10,089 + 2,522.25) - 3,152.81
[(A+B) - C = D] = Rs. 9,458.44/-
5 Annual loss of Dependency 9,458.44 x 12=
(D x 12) Rs. 1,13,501.28/-
6 Multiplier (E) 14
7a Total loss of dependency 1,13,501.28 x 14=
DxE=F Rs. 15,89,017.92/-
(rounded off to Rs.
15,89,018/-)
7b Less: contributory negligence (-) 25% = 3,97,254.50/-
7c Total loss of dependency 15,89,018 - 3,97,254.50 =
Rs. 11,91,763.50/-
(rounded off to Rs.
11,91,764/-)
8 Medical Expenses (G) Nil.
9 Compensation for loss of love Nil.
and affection (H)
10 Compensation for loss of 48,400 x 6=2,90,400/-
consortium (I) to all the 06 (with 10% enhancement in
petitioners terms of Pranay Sethi’s judg-
ment).
11 Compensation for loss of Estate Rs. 18,150/-
(J)
12 Compensation for funeral Rs. 18,150/-
expenses (K)
13 Total Compensation (F+I+J+K) Rs. 15,18,464/-
MACT No. 738/23 Bhanu Vs. Tushar and Anr. Page 23 of 41
39. Further, in view of the judgment of Benson George V.
Reliance General Insurance Co. Ltd. in Civil Appeal No. 1540 of 2022
decided on 25.02.2022, the claimants are held entitled to interest @ 6 %
per annum from the date of DAR. Therefore, the petitioners will be
entitled to interest w.e.f. 16.08.2023 till realization.
Apportionment:
40. It is evident from the record that the deceased Bhanu had
left behind his six legal heirs i.e. his wife, Neelam; unmarried daughter,
Seema Singh; unmarried daughter, Reema; unmarried son, Vishal;
unmarried daughter, Laxmi; and unmarried son, Vikas. For the sake of
convenience, the individual shares of the dependents of the deceased are
tabulated as under:-
S.No. Name of the Relation with Percentage of Amount in (Rupees)
claimant deceased share
1. Neelam Wife 11,91,764 x 50% Rs. 5,95,882
+ Rs. 48,400
+Rs. 18,150
+ Rs. 18,150
= Rs. 6,80,582/-
2. Seema Singh Daughter 11,91,764 x 10% Rs. 1,19,176.40
+ Rs. 48,400
= Rs. 1,67,576.40/-
3. Reema Daughter 11,91,764 x 10% Rs. 1,19,176.40
+ Rs. 48,400
= Rs. 1,67,576.40/-
4. Vishal Son 11,91,764 x 10% Rs. 1,19,176.40
+ Rs. 48,400
= Rs. 1,67,576.40/-
5. Laxmi Daughter 11,91,764 x 10% Rs. 1,19,176.40
+ Rs. 48,400
= Rs. 1,67,576.40/-
6. Vikas Son 11,91,764 x 10% Rs. 1,19,176.40
MACT No. 738/23 Bhanu Vs. Tushar and Anr. Page 24 of 41
+ Rs. 48,400
= Rs. 1,67,576.40/-
Disbursement
Ms. Neelam:-
41. On realization of the award amount, a sum of
Rs. 1,80,582/-(Rupees One Lac Eighty Thousand Five Hundred and
Eighty Two only) along with entire interest amount be released to the
petitioner no. 1 Ms. Neelam (wife of the deceased) and her balance
amount of Rs. 5,00,000/- (Rupees Five Lakhs only) shall be put in 20
(Twenty) monthly fixed deposits in her name in MACAD account of
equal amount of Rs. 25,000/- (Rupees Twenty Five Thousand only) each
for a period of 01 month to 20 months respectively, with cumulative
interest in terms of the directions contained in FAO No. 842/2003 dated
07.12.2018 & 08.01.2021. Besides the above said amount, amount of
FDRs on maturity, shall automatically be transferred in her saving
account maintained in a nationalized bank situated near the place of her
residence without the facility of cheque book and ATM card.
Ms. Seema:-
42. On realization of the award amount, a sum of Rs.67,576.40/
(Rupees Sixty Seven Thousand Five Hundred and Seventy Six & Forty
Paise only) along with entire interest amount be released to the
petitioner no. 2 Ms. Seema (daughter of the deceased) and her balance
amount of Rs. 1,00,000/- (Rupees One Lac only) shall be put in 05
(Five) monthly fixed deposits in her name in MACAD account of equalMACT No. 738/23 Bhanu Vs. Tushar and Anr. Page 25 of 41
amount of Rs. 20,000/- (Rupees Twenty Thousand only) each for a
period of 01 month to 05 months respectively, with cumulative interest
in terms of the directions contained in FAO No. 842/2003 dated
07.12.2018 & 08.01.2021. Besides the above said amount, amount of
FDRs on maturity, shall automatically be transferred in her saving
account maintained in a nationalized bank situated near the place of her
residence without the facility of cheque book and ATM card.
Ms. Reema:-
43. On realization of the award amount, the entire sum of
Rs.1,67,576.40/ (Rupees One Lac Sixty Seven Thousand Five Hundred
and Seventy Six & Forty Paise only) along with entire interest amount
be put in fixed deposit in the name of petitioner no. 3 Ms. Reema
(daughter of the deceased) and upon her attaining majority, a sum of
Rs.67,576.40/ (Rupees Sixty Seven Thousand Five Hundred and
Seventy Six & Forty Paise only) along with entire interest amount be
released in favour of the petitioner Reema and her balance amount of
Rs. 1,00,000/- (Rupees One Lac only) shall be put in 05 (Five) monthly
fixed deposits in her name in MACAD account of equal amount of
Rs.20,000/- (Rupees Twenty Thousand only) each for a period of 01
month to 05 months respectively, with cumulative interest in terms of
the directions contained in FAO No. 842/2003 dated 07.12.2018 &
08.01.2021. Besides the above said amount, amount of FDRs on
maturity, shall automatically be transferred in her saving account
maintained in a nationalized bank situated near the place of her
residence without the facility of cheque book and ATM card.
MACT No. 738/23 Bhanu Vs. Tushar and Anr. Page 26 of 41
Mr. Vishal:-
44. On realization of the award amount, the entire sum of
Rs.1,67,576.40/ (Rupees One Lac Sixty Seven Thousand Five Hundred
and Seventy Six & Forty Paise only) along with entire interest amount
be put in fixed deposit in the name of petitioner no. 4 Mr. Vishal (son of
the deceased) and upon him attaining majority, a sum of Rs. 67,576.40/
(Rupees Sixty Seven Thousand Five Hundred and Seventy Six & Forty
Paise only) along with entire interest amount be released in favour of the
petitioner Vishal and his balance amount of Rs. 1,00,000/- (Rupees One
Lac only) shall be put in 05 (Five) monthly fixed deposits in his name in
MACAD account of equal amount of Rs. 20,000/- (Rupees Twenty
Thousand only) each for a period of 01 month to 05 months
respectively, with cumulative interest in terms of the directions
contained in FAO No. 842/2003 dated 07.12.2018 & 08.01.2021.
Besides the above said amount, amount of FDRs on maturity, shall
automatically be transferred in his saving account maintained in a
nationalized bank situated near the place of his residence without the
facility of cheque book and ATM card.
Ms. Laxmi:-
45. On realization of the award amount, the entire sum of
Rs.1,67,576.40/ (Rupees One Lac Sixty Seven Thousand Five Hundred
and Seventy Six & Forty Paise only) along with entire interest amount
be put in fixed deposit in the name of petitioner no. 5 Ms. Laxmi
(daughter of the deceased) and upon her attaining majority, a sum of
Rs.67,576.40/ (Rupees Sixty Seven Thousand Five Hundred andMACT No. 738/23 Bhanu Vs. Tushar and Anr. Page 27 of 41
Seventy Six & Forty Paise only) along with entire interest amount be
released in favour of the petitioner Laxmi and her balance amount of
Rs.1,00,000/- (Rupees One Lac only) shall be put in 05 (Five) monthly
fixed deposits in her name in MACAD account of equal amount of
Rs.20,000/- (Rupees Twenty Thousand only) each for a period of 01
month to 05 months respectively, with cumulative interest in terms of
the directions contained in FAO No. 842/2003 dated 07.12.2018 &
08.01.2021. Besides the above said amount, amount of FDRs on
maturity, shall automatically be transferred in her saving account
maintained in a nationalized bank situated near the place of her
residence without the facility of cheque book and ATM card.
Mr. Vikas:-
46. On realization of the award amount, the entire sum of
Rs.1,67,576.40/ (Rupees One Lac Sixty Seven Thousand Five Hundred
and Seventy Six & Forty Paise only) along with entire interest amount
be put in fixed deposit in the name of petitioner no. 6 Mr. Vikas (son of
the deceased) and upon his attaining majority, a sum of Rs. 67,576.40/
(Rupees Sixty Seven Thousand Five Hundred and Seventy Six & Forty
Paise only) along with entire interest amount be released in favour of the
petitioner Vikas and his balance amount of Rs. 1,00,000/- (Rupees One
Lac only) shall be put in 05 (Five) monthly fixed deposits in his name in
MACAD account of equal amount of Rs. 20,000/- (Rupees Twenty
Thousand only) each for a period of 01 month to 05 months
respectively, with cumulative interest in terms of the directions
contained in FAO No. 842/2003 dated 07.12.2018 & 08.01.2021.
MACT No. 738/23 Bhanu Vs. Tushar and Anr. Page 28 of 41
Besides the above said amount, amount of FDRs on maturity, shall
automatically be transferred in his saving account maintained in a
nationalized bank situated near the place of his residence without the
facility of cheque book and ATM card.
47. It is clarified that the aforesaid amounts shall be released to
all the petitioners only on submitting the copy of passbook of savings
account in a bank near to their residence with endorsement of the bank
that no cheque book facility and ATM card has been issued or if it has
been issued the said ATM Card has been withdrawn and shall not be
issued without the prior permission of this Tribunal.
48. The above FDRs shall be prepared with the following
conditions as enumerated by the Hon’ble Delhi High Court vide orders
dated 07.12.2018 & 08.01.2021 in FAO No. 842/2003 under the title
Rajesh Tyagi & Ors. v. Jaivir Singh & Ors.:
(i) The bank shall not permit any joint name to
be added in the saving account or fixed deposit
accounts of the claimants i.e. saving bank accounts
of the claimants shall be an individual saving bank
account and not a joint account.
(ii) Original fixed deposit shall be retained by the
bank in safe custody. However, the statement
containing FDR number, FDR amount, date of
maturity and maturity amount shall be furnished by
bank to the claimants.
(iii) The maturity amount of the FDRs be credited
by the ECS in the saving bank account of the
claimant near the place of their residence.
(iv) No loan, advance or withdrawal or premature
discharge be allowed on the fixed deposits without
the permission of the court.
MACT No. 738/23 Bhanu Vs. Tushar and Anr. Page 29 of 41
(v) The concerned bank shall not issue any
cheque book and/or debit card to claimants.
However, in case the debit card and/or cheque book
have already been issued, bank shall cancel the same
before the disbursement of the award amount. The
bank shall debit card(s) freeze the account of
claimants so that no debit card be issued in respect
of the account of claimants from any other branch of
the bank.
(vi) The bank shall make an endorsement on the
passbook of the claimant to the effect, that no
cheque books and/or debit card have been issued and
shall not be issued without the permission of the
Court and the claimant shall produced the passbook
with the necessary endorsement before the Court for
compliance.
49. In compliance of the directions given by Hon’ble High
Court in FAO No. 842/2003 dated 08.01.2021, Summary of the Award
in the prescribed Format-XV is as under:
SUMMARY OF AWARD:
Date of Accident: 30.04.2023 Name of the deceased: Bhanu Age of the deceased: 42 years old.
Occupation of deceased: Unskilled labour
Income of the deceased: Rs. 10,089/- per monthName and relationship of legal representatives of deceased:
S.No. Name of the claimant Relation with
deceased
1. Neelam Wife
2. Seema Daughter
3. Reema Daughter
MACT No. 738/23 Bhanu Vs. Tushar and Anr. Page 30 of 41
4. Vishal Son
5. Laxmi Daughter
6. Vikas Son
COMPUTATION OF COMPENSATION
Sr. Head Awarded by the Claims
No. Tribunal
1 Monthly Income of deceased Rs. 10,089/-
(A)
2 Add future prospect (B) @ 25%= 2,522.25/-
3 Less 1/4 deductions towards (10,089 + 2,522.25) 1/4=
personal and living expenses of Rs. 3,152.81/-
the deceased (C)
4 Monthly loss of dependency (10,089 + 2,522.25) - 3,152.81
[(A+B) - C = D] = Rs. 9,458.44/-
5 Annual loss of Dependency 9,458.44 x 12=
(D x 12) Rs. 1,13,501.28/-
6 Multiplier (E) 14
7a Total loss of dependency 1,13,501.28 x 14=
DxE=F Rs. 15,89,017.92/-
(rounded off to Rs. 15,89,018/-)
7b Less: contributory negligence (-) 25% = 3,97,254.50/-
7c Total loss of dependency 15,89,018 - 3,97,254.50 =
Rs. 11,91,763.50/-
(rounded off to Rs. 11,91,764/-)
8 Medical Expenses (G) Nil.
9 Compensation for loss of love Nil.
and affection (H)
10 Compensation for loss of 48,400 x 6=2,90,400/-
consortium (I) to all the 06 (with 10% enhancement in
MACT No. 738/23 Bhanu Vs. Tushar and Anr. Page 31 of 41
petitioners terms of Pranay Sethi’s judg-
ment).
11 Compensation for loss of Rs. 18,150/-
Estate (J)
12 Compensation for funeral Rs. 18,150/-
expenses (K)
13 Total Compensation (F+I+J+K) Rs. 15,18,464/-
14 Rate of Interest Awarded 6%
15 Interest amount up to the date Rs. 1,41,976.38/-
of award w.e.f. 16.08.2023 till
realization.(01 year 06 months
and 21 days)
16 Total amount including interest Rs. 16,60,440.38/-
(rounded off to
Rs. 16,60,440/-)
17 Award amount released As per paragraph Nos.41 to 46
18 Award amount kept in FDRs As per paragraph Nos.41 to 46
19 Mode of disbursement of the As per paragraph Nos.41 to 46
award amount to the
claimant(s)
20 Next Date of compliance of the 07.04.2025
award
LIABILITY:
50. The offending vehicle was being driven and owned by
respondent no.1, Tushar and insured with respondent no. 2, ICICI
Lombard General Insurance Co. Ltd.
51. On the point of liability, Ld. Counsel for respondent no. 2
argued that respondent no. 1 was under the influence of alcohol andMACT No. 738/23 Bhanu Vs. Tushar and Anr. Page 32 of 41
thus, as per the recent amendment in the Motor Vehicles Act, the
insurance company is entitled to be exonerated from making any
payment to the petitioner. Ld. Counsel for respondent no. 2 has relied
upon the FSL report exhibited as Ex. R2W1/3 wherein respondent no. 1
was found to have 46.6 mg of alcohol content per 100 ml in his blood.
On the other hand, Ld. Counsel for respondent no. 1 argued that the FSL
report has not been proved and it is possible that the alcohol content is
shown in the blood of respondent no. 1 due to consumption of cough
syrup or lozenges. He argued that in the absence of any concrete proof,
the liability to pay the award amount cannot be fastened upon
respondent no. 1.
52. Perusal of the FSL report Ex. R2W1/3 clearly shows that
46.6 mg of alochol content per 100 ml was found in the blood of
respondent no. 1. The argument that the same could have been due to
consumption of cough syrup or cough lozenges is a presumptive one and
has not been proved by respondent no. 1. The FSL report has filed by the
IO and exhibited by R2W1. There is no basis to disbelieve the said
report. Also, respondent no. 1 has not brought on record anything to
disprove the FSL report or to prove that he was not intoxicated. In view
of the above, this Tribunal is of the view that it stands proved that
respondent no. 1 had consumed alcohol measuring 46.6 mg in his 100
ml blood.
53. Section 150 (2) (a)(ii) of the amended Motor Vehicles Act,
1988 provides that the insurance company can defend the action on the
ground that the driver was “driving under the influence of alcohol or
MACT No. 738/23 Bhanu Vs. Tushar and Anr. Page 33 of 41
drugs as laid down in section 185“. Further, section 185 of the Act
makes driving punishable when driven by a person under the influence
of alcohol exceeding 30mg per 100 ml in his blood. A combined reading
of sections 150 (2) (a) (ii) and 185 MV Act implies that the insurance
company can defend its action if more than 30mg of alcohol content per
100 ml is found in the blood of the driver of the offending vehicle. In the
present case, 46.6 mg of alcohol content has been found in the blood of
respondent no. 1. Therefore, there is no doubt that respondent no. 2/
insurance company can defend its action on this ground. However,
since the quantity of alcohol content is not very high, it is held that the
insurance company shall pay 60% of the award amount to the petitioners
and respondent no. 1 shall pay 40% of the award amount to the
petitioners.
54. Ld. Counsel for respondent no. 2/ insurance company had
also sought complete exoneration from making payment. He argued that
the phenomenon of payment of compensation by the insurance company
and then grant of recovery rights has been done away with in the
Amendment Act of 2019 which came into effect on 01.04.2022 and
since the accident in the present case took place after the coming into
effect of the said amendment, the insurance company cannot be
burdened with the payment of compensation and then following up the
procedure of recovering the same from the driver and/or owner.
55. On the other hand, Ld. Counsel for the petitioner argued
that MACT provisions are formulated with a sole motive in mind and
that is welfare of the victims of road traffic accidents. He argued that if
MACT No. 738/23 Bhanu Vs. Tushar and Anr. Page 34 of 41
the legislation is interpreted in light of the submissions of Ld. Counsel
for respondent no. 2, then the whole purpose of the Act will be defeated.
He urged that respondent no. 2 be directed to pay the compensation
amount to the LRs of the deceased Bhanu.
56. Perusal of the Motor Vehicles Act, 1988 shows that post
amendment with effect from 01.04.2022, the specific provision of
recovery rights which was granted in section 149 (4) of the Act has
been deleted. While it can be said that on one said deletion of the
provision indicates the intention of the Parliament to do away with the
phenomenon of grant of recovery rights after payment of compensation,
on the other side, it can also be said that the omission cannot mean a
change in the law. The absence of provision for recovery rights cannot
mean to strip the power of MACT Tribunals to direct the insurance
companies to pay the award amount and then recover the same. The
spirit of the MACT law is welfare of the victims of road traffic
accidents. The victims already suffer in cases where the offending
vehicles are not insured. In cases where the offending vehicles are
insured, they cannot be made to run pillar to post only to get what they
are entitled to. It cannot be denied that when the offending vehicle is
insured, the insurance company has charged premium for the same
which means that a roadworthy fully insured vehicle is plying on the
road. If there is any violation of the policy condition, then the matter
should be between the insurance company and the driver/ owner. Why
should the victim be made to suffer for it. It cannot be denied that
recovering the compensation amount from private individuals is a
herculean task and it can take many years altogether to get even a petty
MACT No. 738/23 Bhanu Vs. Tushar and Anr. Page 35 of 41
amount. Then, in a case where the amount is hefty, if the insurance
company is not made to pay, the injured/victim/petitioner will only be
left with nothing but a paper award. Therefore, the omission of the
provision of grant of recovery rights should be read in the bright light of
the spirit of MACT Act which is welfare of the victims of road traffic
accidents. The omission of the provision of recovery right does not
mean that a negative provision has been inserted according to which
grant of recovery rights has been made illegal. Thus, upholding the spirit
of MACT provisions and the underlying object of the Act which is
reasonable and quick grant of compensation to the victims of road traffic
accident, this Tribunal directs respondent no. 2 to pay the entire award
amount to the LRs of the deceased. However, respondent no. 2 is at
liberty to recover 40% of the award amount from respondent no 1.
Issue No.2 is accordingly decided in favour of the petitioner
and against the respondents.
RELIEF:
57. In view of the above, the respondent no.2 ICICI Lombard
General Insurance Co. Ltd. is directed to deposit a sum of
Rs.15,18,464/- (Rupees Fifteen Lacs Eighteen Thousand Four Hundred
& Sixty Four only) along with interest @ 6 % from the date of filing of
DAR i.e. w.e.f. 16.08.2023 till realization with the Civil Nazir of this
Tribunal within 30 days under intimation to the claimants, failing which
the respondent no. 2 shall be liable to pay interest @ 7.5 % per annum
for the period of delay beyond 30 days. Respondent no. 2 is also at
liberty to recover 40% of the amount paid from respondent no. 1.
MACT No. 738/23 Bhanu Vs. Tushar and Anr. Page 36 of 41
Ahlmad is directed to e-mail an authenticated copy of the
award to the insurance company for compliance within the time granted
as directed by the Hon’ble Supreme Court of India in WP (Civil) No.
534/2020 titled as Bajaj Allianz General Insurance Co. Pvt. Ltd. Vs.
Union of India & Ors. on 16.03.2021. The said respondent is further
directed to give intimation of deposit of the compensation amount to the
claimant and shall file a compliance report with the Claims Tribunal
with respect to the deposit of the compensation amount within 15 days
of the deposit with a copy to the Claimant and his counsel.
Ahlmad shall also e-mail an authenticated copy of the
award to Branch Manager, SBI, Tis Hazari Courts for information.
A digital copy of this award be forwarded to the parties free
of cost.
Ahlmad is directed to send the copy of the award to
Ld. Metropolitan Magistrate concerned and Delhi Legal Services
Authority in view of Central Motor Vehicles (fifth Amendment) Rules,
2022 [(Directions at serial nos. 39, 40 of Procedure for Investigation of
Motor Vehicle Accidents (under Rule 150A)].
Civil Nazir is directed to place a report on record on
07.04.2025 in the event of non-receipt/deposit of the compensation
amount within the time granted.
Further Nazir is directed to maintain the record in Form
XVIII in view of Central Motor Vehicles (fifth Amendment) Rules,
2022 [(Directions at serial no. 41 of Procedure for Investigation of
Motor Vehicle Accidents (under Rule 150A).
MACT No. 738/23 Bhanu Vs. Tushar and Anr. Page 37 of 41
Ahlmad is further directed to comply with the directions
passed by the Hon’ble High Court of Delhi in MAC APP No. 10/2021
titled as New India Assurance Company Ltd. Vs. Sangeeta Vaid & Ors.,
date of decision : 06.01.2021 regarding digitisation of the records.
File be consigned to Record Room after due compliance.
Digitally signed
by RUCHI
Announced in the open Court today RUCHI
AGGARWAL
AGGARWAL
ASRANI
on this 7th Day of March, 2025 ASRANI Date:
2025.03.07
16:07:19 +0530
(Dr. RUCHI AGGARWAL ASRANI
PO, MACT-01, Central District,
Tis Hazari Courts, Delhi.
MACT No. 738/23 Bhanu Vs. Tushar and Anr. Page 38 of 41
FORM - XVII
COMPLIANCE OF THE PROVISIONS OF THE SCHEME TO BE
MENTIONED IN THE AWARD
1 Date of Accident 30.04.2023
2 Date of filing of Form-I –
First Accident Report 02.05.2023
(FAR)
3 Date of delivery of Form-II
to the victim(s) 16.08.2023
4 Date of receipt of Form-III
from the Driver 09.06.2023
5 Date of receipt of Form-IV
from the Owner 09.06.2023
6 Date of filing of the Form-
V - Interim Accident 09.06.2023
Report (IAR)
7 Date of receipt of Form-
VIA and Form VIB from 16.08.2023
the Victim(s)
8 Date of filing of Form-VII -
Detail Accident Report 16.08.2023
(DAR)
9 Whether there was any
delay or deficiency on the
part of the Investigating No.
Officer? If so, whether any
action/direction warranted?
10 Date of appointment of the
Designated Officer by the N/A
Insurance Company
11 Whether the Designated
Officer of the Insurance N/A
MACT No. 738/23 Bhanu Vs. Tushar and Anr. Page 39 of 41
Company admitted his
report within 30 days of the
DAR?
12 Whether there was any
delay or deficiency on the
part of the Designated
Officer of the Insurance N/A.
Company? If so, whether
any action/direction
warranted?
13 Date of response of the
claimant(s) to the offer of No legal offer was filed by the
the Insurance Company. insurance company.
14 Date of award 07.03.2025
15 Whether the claimant(s)
were directed to open
savings bank account(s) Yes.
near their place of
residence?
16 Date of order by which
claimant(s) were directed to
open Savings Bank
Account(s) near his place of
residence and produce PAN
card and Aadhaar Card and 16.08.2023
the direction to the bank not
to issue any cheque
book/debit card to the
claimant(s) and make an
endorsement to this effect
on the passbook(s).
17 Date on which the
claimant(s) produced the 06.03.2025
passbook of their savings
bank account(s) near the
place of their residence
MACT No. 738/23 Bhanu Vs. Tushar and Anr. Page 40 of 41
alongwith the endorsement,
PAN card and Aadhaar
Card?
18 Permanent residential
address of the claimant(s). As per Award
19 Whether the claimant(s)
savings bank account(s) is
Yes.
near their place of
residence?
20 Whether the Claimant(s)
were examined at the time
Yes. Financial statements of the
of passing of the Award to
petitioners were recorded.
ascertain his/their financial
condition?
Digitally signed
by RUCHI
RUCHI AGGARWAL
AGGARWAL ASRANI
ASRANI Date:
2025.03.07
16:07:33 +0530
(Dr. Ruchi Aggarwal Asrani)
PO, MACT-01 (Central),
Tis Hazari Courts, Delhi.
07.03.2025
MACT No. 738/23 Bhanu Vs. Tushar and Anr. Page 41 of 41
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