Surender Kumar Khurana v. Tilak Raj Khurana

Full Judgment Text

[Cites 78 , Cited by 0 ]

Delhi District Court
Sapna Talwar W/O Late Sh.Madan Lal ... vs Sh.Raj Singh @ Nasir Ali on 16 July, 2016

IN THE COURT OF ANOOP KUMAR MENDIRATTA,
JUDGE, MACT-1 (CENTRAL), DELHI.

CASE-A

Suit No.307/11
Unique Case ID No.02401C-0674242007
1. Sapna Talwar W/o Late Sh.Madan Lal Talwar, (Wife)
2. Kamal Talwar S/o Late Sh.Madan Lal Talwar, (Son)
3. Sachin Talwar S/o Late Sh.Madan Lal Talwar, (Son)

All R/o
A-311, Pandav Nagar, New Delhi-08
........PETITIONERS
Versus
1. Sh.Raj Singh @ Nasir Ali
S/o Abdul Karim,
C/o M/s Pritpal Bus Service,
6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-110 058 (Driver)

2. Sh.Harvinder Singh, Proprietor of M/s Pritpal Bus Service,
6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-15 (Owner)

3. The New India Assurance Company Ltd.
Through its Manager, Keltron Chambers, 1st Floor,
18/7-8, Arya Samaj Road, Karol Bagh
New Delhi -110 005 (Insurer)
.........RESPONDENTS

Date of filing of Claim Petition :13.07.2007

********************
CASE-B
Suit No.309/11
Unique Case ID No.02401C-0674242007

Smt.Pooja Talwar W/o Sh.Kamal Talawar,
R/o A-311, Pandav Nagar, New Delhi-08
........PETITIONER

Page No.1 of 313
Versus
1. Sh.Raj Singh @ Nasir Ali
S/o Abdul Karim,
C/o M/s Pritpal Bus Service,
6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-110 058 (Driver)

2. Sh.Harvinder Singh, Proprietor of M/s Pritpal Bus Service,
6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-15 (Owner)

3. The New India Assurance Company Ltd.
Through its Manager, Keltron Chambers, 1st Floor,
1& 7-8, Arya Samaj Road, Karol Bagh
New Delhi -110 005 (Insurer)
...........RESPONDENTS

Date of filing of Claim Petition : 13.07.2007
********************
CASE-C
Suit No.308/11
Unique Case ID No.02401C-0674222007

Sh. Kamal Talwar, guardian/father of Ms. Riya Talwar,
R/o A-311, Pandav Nagar, New Delhi-08
........PETITIONER
Versus
1. Sh.Raj Singh @ Nasir Ali
S/o Abdul Karim,
C/o M/s Pritpal Bus Service,
6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-110 058 (Driver)

2. Sh.Harvinder Singh, Proprietor of M/s Pritpal Bus Service,
6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-15 (Owner)

3. The New India Assurance Company Ltd.
Through its Manager, Keltron Chambers, 1st Floor,

Page No.2 of 313
1& 7-8, Arya Samaj Road, Karol Bagh
New Delhi -110 005 (Insurer)
...........RESPONDENTS

Date of filing of Claim Petition : 13.07.2007
********************

CASE-D
Suit No.21/16
Unique Case ID No.02401C-0027012016
1. Sh. Ajay Tiwari S/o Lt.Sh.Kameshwar Tiwari (Son)
2. Sh. Amit Tiwari S/o Late Sh.Kameshwar Tiwari (Son)

Both R/o A-311, Pandav Nagar, New Delhi-110 008
........PETITIONERS
Versus
1. Sh.Raj Singh @ Nasir Ali
S/o Abdul Karim,
C/o M/s Pritpal Bus Service,
6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-110 058 (Driver)

2. Sh.Harvinder Singh, Proprietor of M/s Pritpal Bus Service,
6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-15 (Owner)

3. The New India Assurance Company Ltd.
Through its Manager, Keltron Chambers, 1st Floor,
18/7-8, Arya Samaj Road, Karol Bagh
New Delhi -110 005 (Insurer)

RESPONDENTS

Date of filing of Claim Petition : 05.07.2007
*************************

CASE-E
Suit No.305/11
Unique Case ID No.02401C-0674262007

Page No.3 of 313
1. Sh.Rajeev @ Rajeev Malhotra
S/o Sh.Mohinder Kumar (Husband)
2. Master Jai Malhotra S/o Sh.Rajeev Malhotra (Son)
(Petitioner No.2 through his natural guardian/father Sh.Rajeev)

Both R/o
311, Railway Colony, Patel Nagar, New Delhi

3. Smt. Sapna W/o Late Sh.Madan Lal
R/o 311, Railway Colony, Patel Nagar, New Delhi
(Mother)
........PETITIONERS
Versus
1. Sh.Raj Singh @ Nasir Ali
S/o Abdul Karim,
C/o M/s Pritpal Bus Service,
6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-110 058 (Driver)

2. Sh.Harvinder Singh, Proprietor of M/s Pritpal Bus Service,
6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-15 (Owner)

3. The New India Assurance Company Ltd.
Through its Manager, Keltron Chambers, 1st Floor,
1& 7-8, Arya Samaj Road, Karol Bagh
New Delhi -110 005 (Insurer)
..........RESPONDENTS

Date of filing of Claim Petition : 13.07.2007
********************

CASE-F
Suit No.306/11
Unique Case ID No.02401C-1059072008

Master Jai Malhotra
Through his guardian/father Shri Rajeev Malhotra
R/o A-2/65, Block-A, Pocket-2, Rohini, Sector-8,
New Delhi-110 088

Page No.4 of 313
........PETITIONER
Versus
1. Sh.Raj Singh @ Nasir Ali
S/o Abdul Karim,
C/o M/s Pritpal Bus Service,
6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-110 058 (Driver)

2. M/s Pritpal Bus Service,
Through its Proprietor,
6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-15 (Owner)

3. The New India Assurance Company Ltd.
Through its Manager, Keltron Chambers, 1st Floor,
1& 7-8, Arya Samaj Road, Karol Bagh
New Delhi -110 005 (Insurer)
..........RESPONDENTS

Date of filing of Claim Petition : 20.07.2007
********************

CASE-G
Suit No.310/11
Unique Case ID No.02401C-1059172008

1. Ms. Sunita Rao @ Jyoti Rao
D/o Sh. Rameshwar Rao
R/o BS-84A, Shalimar Bagh, DDA Flats,
Delhi-110 088
........PETITIONER
Versus
1. Sh.Raj Singh @ Nasir Ali
S/o Abdul Karim,
C/o M/s Pritpal Bus Service,
6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-110 058 (Driver)

2. Sh.Harvinder Singh, Proprietor of M/s Pritpal Bus Service,
6/1, Prem Nagar, Main Najafgarh Road,

Page No.5 of 313
Near Tilak Nagar, New Delhi-15 (Owner)

3. The New India Assurance Company Ltd.
Through its Manager, Keltron Chambers, 1st Floor,
1& 7-8, Arya Samaj Road, Karol Bagh
New Delhi -110 005 (Insurer)
...........RESPONDENTS

Date of filing of Claim Petition : 20.07.2007
********************

CASE-H
Suit No.390/11
Unique Case ID No.02401C-1058872008

Smt. Anju Mahajan
W/o Shri Sanjeev Mahajan,
R/o H.No.C-68A, M.P. Enclave, Pritam Pura, Delhi
Also At:
B-569/A, Rishi Nagar Ext. Shakur Basti, Delhi-34

(Petition filed through her husband Sh.Sanjeev Mahajan)
........PETITIONER
Versus
1. Sh.Nasir Ali @ Raj Singh
S/o Abdul Karim,
R/o C/o Sh.Sunder Chandelia,
WZ-53, 80 Gaj, Harijan Colony,
Near Valmiki Mandir, Tilak Nagar,
PS Tilak Nagar, Delhi-18
Also at:
C/o Harvinder Singh S/o Sh. Pritpal Singh,
Office-6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Driver)

2. Sh.Harvinder Singh S/o Sh. Pritpal Singh,
6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Owner)

3. The New India Assurance Company Ltd.
Office- Keltron Chambers, 1st Floor,

Page No.6 of 313
18/7-8, Arya Samaj Road, Karol Bagh
New Delhi -110 005 (Insurer)
..........RESPONDENTS

Date of filing of Claim Petition : 17.08.2007
********************

CASE-I
Suit No.279/11
Unique Case ID No.02401C-1465102008

1. Archana Rawal W/o Sh.Anil Rawal (Mother)
2. Anil Rawal S/o Late Sh.Tilak Raj (Father)

Both R/o
H.No.5/159, Subhash Nagar, Hari Nagar,
Delhi-110 018
..........PETITIONERS
Versus

1. Sh. Nasir Ali @ Raj Singh
S/o Abdul Karim,
R/o C/o Sh.Sunder Chandella,
WZ-53, 80 Gaj, Harijan Colony,
Near Valmiki Mandir, Tilak Nagar,
PS Tilak Nagar, Delhi-18
Also at:
C/o Harvinder Singh S/o Sh.Pritpal Singh,
Office 6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Driver)

2. Sh.Harvinder Singh S/o Pritpal Singh
R Office 6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Owner)

3. The New India Assurance Company Ltd.
Keltron Chambers, 1st Floor,
18/7-8, Arya Samaj Road, Karol Bagh
New Delhi -110 005 (Insurer)
..........RESPONDENTS

Page No.7 of 313
Date of filing of Claim Petition : 16.08.2007
********************

CASE-J
Suit No.325/11
Unique Case ID No.02401C-1465172008

1. Surinder Nijhawan S/o Lt. Sh.Krishan Lal, (Father)
2. Baby Diksha D/o Surinder Nijhawan, (Sister)
3. Master Akshay Nijhawan S/o Surinder Nijhawan, (Brother)

All R/o H.No.122, 1st Floor, Tihar Village, Delhi

(Petitioner No.2 & 3 being minor through their natural
guardian/father Sh.Surinder Nijhawan)
........PETITIONERS
Versus
1. Sh.Raj Singh @ Nasir Ali
S/o Abdul Karim,
C/o M/s Pritpal Bus Service,
6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-110 018 (Driver)

2. Sh.Harvinder Singh, Proprietor of M/s Pritpal Bus Service,
6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Owner)

3. The New India Assurance Company Ltd.
Through its Manager, Keltron Chambers, 1st Floor,
1& 7-8, Arya Samaj Road, Karol Bagh
New Delhi -110 005 (Insurer)
...........RESPONDENTS

Date of filing of Claim Petition :16.08.2007
********************

CASE-K
Suit No.322/11
Unique Case ID No.02401C-1465112008

1. Surinder Nijhawan S/o Lt. Sh.Krishan Lal, (Husband)

Page No.8 of 313
2. Baby Diksha D/o Surinder Nijhawan, (Daughter)
3. Master Akshay Nijhawan S/o Surinder Nijhawan, (Son)

All R/o H.No.11, 1st Floor, Tihar Village, Delhi

2. Sh.Harvinder Singh, Proprietor of M/s Pritpal Bus Service,
6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Owner)

3. The New India Assurance Company Ltd.
Through its Manager, Keltron Chambers, 1st Floor,
1& 7-8, Arya Samaj Road, Karol Bagh
New Delhi -110 005 (Insurer)
.........RESPONDENTS

Date of filing of Claim Petition : 16.08.2007
********************

CASE-L
Suit No.324/11
Unique Case ID No.02401C-1465132008

Surinder Nijhawan S/o Late Sh.Krishan Lal,
R/o H.No.122, 1st Floor, Tihar Village, Delhi
........PETITIONER
Versus
1. Sh.Nasir Ali @ Raj Singh
S/o Abdul Karim,
R/o C/o Sh. Sunder Chandelia,

Page No.9 of 313
At WZ-53, 80 Gaj, Harijan Colony.
Near Valmiki Mandir, Tilk Nagar,
PS Tilak Nagar, Delhi-18.
Also at C/o Harvinder Singh, S/o Sh.Pritpal Singh,
6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-110 018 (Driver)

2. Sh.Harvinder Singh S/o Sh.Pritpal Singh,
R Office 6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Owner)

3. The New India Assurance Company Ltd.
Through its Manager, Keltron Chambers, 1st Floor,
18/7-8, Arya Samaj Road, Karol Bagh
New Delhi -110 005 (Insurer)
.........RESPONDENTS

Date of filing of Claim Petition : 16.08.2007
********************

CASE-M
Suit No.323/11
Unique Case ID No.02401C-1465122008

Surinder Nijhawan, guardian/father of
Master Akshay
R/o H.No.122, 1st Floor, Tihar Village, Delhi
........PETITIONER
Versus
1. Sh.Nasir Ali @ Raj Singh
S/o Abdul Karim,
R/o C/o Sh. Sunder Chandelia,
At WZ-53, 80 Gaj, Harijan Colony.
Near Valmiki Mandir, Tilk Nagar,
PS Tilak Nagar, Delhi-18.
Also at C/o Harvinder Singh, S/o Sh.Pritpal Singh,
6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-110 018 (Driver)

2. Sh.Harvinder Singh S/o Sh.Pritpal Singh,
R Office 6/1, Prem Nagar, Main Najafgarh Road,

Page No.10 of 313
Near Tilak Nagar, New Delhi-18 (Owner)

3. The New India Assurance Company Ltd.
Through its Manager, Keltron Chambers, 1st Floor,
18/7-8, Arya Samaj Road, Karol Bagh
New Delhi -110 005 (Insurer)
........RESPONDENTS

Date of filing of Claim Petition : 16.08.2007
********************

CASE-N
Suit No.280/11
Unique Case ID No.02401C-1465202008

Satish Kumar Nijhawan, guardian/father of
Baby Bhawna (minor)
R/o H.No.122, 1st Floor, Village Tihar, Delhi-18
..........PETITIONER
Versus

2. Sh.Harvinder Singh S/o Pritpal Singh
R Office 6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Owner)

3. The New India Assurance Company Ltd.
Keltron Chambers, 1st Floor,
18/7-8, Arya Samaj Road, Karol Bagh
New Delhi -110 005 (Insurer)
.........RESPONDENTS

Page No.11 of 313
Date of filing of Claim Petition : 16.08.2007
********************

CASE-O
Suit No.190/11
Unique Case ID No.02401C-0819832007

Amol Bajaj S/o Rajesh Bajaj,
R/o H.No. G-17A, Double Story Quarters,
West Patel Nagar, Delhi-110 008 ........PETITIONER
Versus
1. Sh.Nasir Ali @ Raj Singh
S/o Abdul Karim,
R/o C/o Sh.Sunder Chandelia,
WZ-53, 80 Gaj, Harijan Colony,
Near Valmiki Mandir, Tilak Nagar,
PS Tilak Nagar, Delhi-18
Also at:
C/o Harvinder Singh S/o Sh. Pritpal Singh,
Office-6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Driver)

2. Sh.Harvinder Singh S/o Sh. Pritpal Singh,
6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Owner)

3. The New India Assurance Company Ltd.
Office- Keltron Chambers, 1st Floor,
18/7-8, Arya Samaj Road, Karol Bagh
New Delhi -110 005 (Insurer)
..........RESPONDENTS

Date of filing of Claim Petition : 16.08.2007
********************

CASE-P
Suit No.191/11
Unique Case ID No.02401C-0815992007

Smt. Bharti Bajaj W/o Rajesh Bajaj,

Page No.12 of 313
R/o H.No. G-17A, Double Story Quarters,
West Patel Nagar, Delhi-110 008 ........PETITIONER
Versus
1. Sh.Nasir Ali @ Raj Singh
S/o Abdul Karim,
R/o C/o Sh.Sunder Chandelia,
WZ-53, 80 Gaj, Harijan Colony,
Near Valmiki Mandir, Tilak Nagar,
PS Tilak Nagar, Delhi-18

Also at:
C/o Harvinder Singh S/o Sh. Pritpal Singh,
Office-6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Driver)

2. Sh.Harvinder Singh S/o Sh. Pritpal Singh,
6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Owner)

3. The New India Assurance Company Ltd.
Office- Keltron Chambers, 1st Floor,
18/7-8, Arya Samaj Road, Karol Bagh
New Delhi -110 005 (Insurer)
...............RESPONDENTS

Date of filing of Claim Petition : 16.08.2007
********************

CASE-Q
Suit No.194/11
Unique Case ID No.02401C-0820642007

Sunny Ahuja @ Sahil Ahuja
S/o Sh.Suraj Ahuja
R/o H.No. G-24, Double Story Quarters,
West Patel Nagar, Delhi-110 008

(Petitioner being minor through his natural guardian/next
friend/father Sh.Suraj Ahuja)
........PETITIONER

Page No.13 of 313
Versus
1. Sh.Nasir Ali @ Raj Singh
S/o Abdul Karim,
R/o C/o Sh.Sunder Chandelia,
WZ-53, 80 Gaj, Harijan Colony,
Near Valmiki Mandir, Tilak Nagar,
PS Tilak Nagar, Delhi-18
Also at:
C/o Harvinder Singh S/o Sh. Pritpal Singh,
Office-6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Driver)

2. Sh.Harvinder Singh S/o Sh. Pritpal Singh,
6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Owner)

3. The New India Assurance Company Ltd.
Office- Keltron Chambers, 1st Floor,
18/7-8, Arya Samaj Road, Karol Bagh
New Delhi -110 005 (Insurer)
........RESPONDENTS

Date of filing of Claim Petition :16.08.2007
********************

CASE-R
Suit No.196/11
Unique Case ID No.02401C-0820012007

Saroj Ahuja W/o Sh.Suraj Ahuja
R/o H.No. G-24, Double Story Quarters,
West Patel Nagar, Delhi-110 008
........PETITIONER
Versus
1. Sh.Nasir Ali @ Raj Singh
S/o Abdul Karim,
R/o C/o Sh.Sunder Chandelia,
WZ-53, 80 Gaj, Harijan Colony,
Near Valmiki Mandir, Tilak Nagar,
PS Tilak Nagar, Delhi-18

Page No.14 of 313
Also at:
C/o Harvinder Singh S/o Sh. Pritpal Singh,
Office-6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Driver)

2. Sh.Harvinder Singh S/o Sh. Pritpal Singh,
6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Owner)

3. The New India Assurance Company Ltd.
Office- Keltron Chambers, 1st Floor,
18/7-8, Arya Samaj Road, Karol Bagh,
New Delhi -110 005 (Insurer)
........RESPONDENTS

Date of filing of Claim Petition : 16.08.2007
********************

CASE-S
Suit No.195/11
Unique Case ID No.02401C-0820982007

1. Smt. Bimla Ahuja W/o Late Sh.Baldev Raj Ahuja (Wife)
2. Smt. Monika Khurana W/o Sh.Naveen Khurana (Daughter)

Both R/o H.No. G-24, Double Story Quarters,
West Patel Nagar, Delhi-110 008
........PETITIONERS
Versus
1. Sh.Nasir Ali @ Raj Singh
S/o Abdul Karim,
R/o C/o Sh.Sunder Chandelia,
WZ-53, 80 Gaj, Harijan Colony,
Near Valmiki Mandir, Tilak Nagar,
PS Tilak Nagar, Delhi-18
Also at:
C/o Harvinder Singh S/o Sh. Pritpal Singh,
Office-6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Driver)

2. Sh.Harvinder Singh S/o Sh. Pritpal Singh,

Page No.15 of 313
6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Owner)

3. The New India Assurance Company Ltd.
Office- Keltron Chambers, 1st Floor,
18/7-8, Arya Samaj Road, Karol Bagh,
New Delhi -110 005 (Insurer)
........RESPONDENTS

Date of filing of Claim Petition : 16.08.2007
******************

CASE-T
Suit No.193/11
Unique Case ID No.02401C-1465092008

1. Smt.Bimla Ahuja W/o Late Sh.Baldev Raj Ahuja (Wife)
2. Smt.Monika Khurana W/o Sh.Naveen Khurana (Daughter)

2. Sh.Harvinder Singh S/o Sh. Pritpal Singh,
6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Owner)

3. The New India Assurance Company Ltd.
Office- Keltron Chambers, 1st Floor,
18/7-8, Arya Samaj Road, Karol Bagh

Page No.16 of 313
New Delhi -110 005 (Insurer)
.........RESPONDENTS

Date of filing of Claim Petition :16.08.2007
********************

CASE-U

Suit No.192/11
Unique Case ID No.02401C-0820722007

Smt. Bimla Ahuja W/o Late Sh.Baldev Raj Ahuja
R/o H.No. G-24, Double Story Quarters,
West Patel Nagar, Delhi-110 008
........PETITIONER
Versus
1. Sh.Nasir Ali @ Raj Singh
S/o Abdul Karim,
R/o C/o Sh.Sunder Chandelia,
WZ-53, 80 Gaj, Harijan Colony,
Near Valmiki Mandir, Tilak Nagar,
PS Tilak Nagar, Delhi-18
Also at:
C/o Harvinder Singh S/o Sh. Pritpal Singh,
Office-6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Driver)

2. Sh.Harvinder Singh S/o Sh. Pritpal Singh,
6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Owner)

3. The New India Assurance Company Ltd.
Office- Keltron Chambers, 1st Floor,
18/7-8, Arya Samaj Road, Karol Bagh
New Delhi -110 005 (Insurer)

...........RESPONDENTS

Date of filing of Claim Petition : 16.08.2007

********************

Page No.17 of 313
CASE-V
Suit No.657/11
Unique Case ID No.02401C-0886142007

1. Smt.Anu Gulati W/o Lt.Sh.Sanjeev Gulati
R/o H.No.T-192, Baljeet Nagar, Delhi-110 008
........PETITIONER
Versus
1. Sh.Nasir Ali @ Raj Singh
S/o Abdul Karim,
R/o C/o Sh.Sunder Chandelia,
WZ-53, 80 Gaj, Harijan Colony,
Near Valmiki Mandir, Tilak Nagar,
PS Tilak Nagar, Delhi-18
Also at:
C/o Harvinder Singh S/o Sh. Pritpal Singh,
Office-6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Driver)

2. Sh.Harvinder Singh S/o Sh. Pritpal Singh,
R Office 6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Owner)

3. The New India Assurance Company Ltd.
Keltron Chambers, 1st Floor,
18/7-8, Arya Samaj Road, Karol Bagh
New Delhi -110 005 (Insurer)
..........RESPONDENTS

Date of filing of Claim Petition : 01.09.2007
********************

CASE-W
Suit No.658/11
Unique Case ID No.02401C-0885982007
1. Smt.Anu Gulati W/o Lt.Sh.Sanjeev Gulati (Wife)
2. Smt. Pushpa Gulati W/o Sh.Rammurti Gulati (Mother)
3. Sh.Rammurti Gulati S/o Late Sh.Diwan Chand (Father)
4. Jyoti Gulat D/o Sh.Rammurti Gulati (Sister)

Page No.18 of 313
All R/o H.No.T-192, Baljeet Nagar, Delhi-110 008
........PETITIONERS
Versus
1. Sh.Nasir Ali @ Raj Singh
S/o Abdul Karim,
R/o C/o Sh.Sunder Chandelia,
WZ-53, 80 Gaj, Harijan Colony,
Near Valmiki Mandir, Tilak Nagar,
PS Tilak Nagar, Delhi-18
Also at:
C/o Harvinder Singh S/o Sh. Pritpal Singh,
Office-6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Driver)

2. Sh.Harvinder Singh S/o Sh. Pritpal Singh,
R Office 6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Owner)

3. The New India Assurance Company Ltd.
Keltron Chambers, 1st Floor,
18/7-8, Arya Samaj Road, Karol Bagh
New Delhi -110 005 (Insurer)
RESPONDENTS

Date of filing of Claim Petition :01.09.2007
********************

CASE-X
Suit No.326/11
Unique Case ID No.02401C-0816062007

Raghav Ram S/o Late Sh. Bhikari Ram (Brother)
.......PETITIONER
Versus
1. Sh. Nasir Ali @ Raj Singh
S/o Abdul Karim,
R/o WZ-53, 80 Gaj, Harijan Colony,
Near Valmiki Mandir, Tilak Nagar,
PS Tilak Nagar, Delhi-18
Also at:
C/o Harvinder Singh S/o Sh.Pritpal Singh,

Page No.19 of 313
Office 6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Driver)

2. Sh.Harvinder Singh S/o Pritpal Singh
R Office 6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Owner)

3. The New India Assurance Company Ltd.
Keltron Chambers, 1st Floor,
18/7-8, Arya Samaj Road, Karol Bagh
New Delhi -110 005 (Insurer)
.........RESPONDENTS
1.
Date of filing of Claim Petition : 16.08.2007
********************

CASE-Y
Suit No.456/11
Unique Case ID No.02401C-0886212007

Atul Kumar Sharma S/o Late Sh.Jagdish Kumar Sharma
West Patel Nagar, Delhi-18
..........PETITIONER
Versus
1. Sh. Nasir Ali @ Raj Singh
S/o Abdul Karim,
R/o WZ-53, 80 Gaj, Harijan Colony,
Near Valmiki Mandir, Tilak Nagar,
PS Tilak Nagar, Delhi-18
Also at:
C/o Harvinder Singh S/o Sh.Pritpal Singh,
Office 6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Driver)

2. Sh.Harvinder Singh S/o Pritpal Singh
R Office 6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Owner)

3. The New India Assurance Company Ltd.
Keltron Chambers, 1st Floor,
18/7-8, Arya Samaj Road, Karol Bagh

Page No.20 of 313
New Delhi -110 005 (Insurer)
.........RESPONDENTS

Date of filing of Claim Petition : 01.09.2007
********************

CASE-Z
Suit No.457/11
Unique Case ID No.02401C-1465162008

Sanjay Kumar Jain S/o Late Sh.Deep Chan Jain (Brother)
Rakesh Kumar Jain S/o Late Sh.Deep Chan Jain (Brother)
Both R/o
H.No.11/392, Sunder Vihar,
Paschim Vihar, Delhi-110 087
........PETITIONER
Versus
1. Sh.Nasir Ali @ Raj Singh
S/o Abdul Karim,
R/o C/o Sh.Sunder Chandelia,
WZ-53, 80 Gaj, Harijan Colony,
Near Valmiki Mandir, Tilak Nagar,
PS Tilak Nagar, Delhi-18
Also at:
C/o Harvinder Singh S/o Sh. Pritpal Singh,
Office-6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Driver)

2. Sh.Harvinder Singh S/o Sh. Pritpal Singh,
R Office 6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Owner)

3. The New India Assurance Company Ltd.
Keltron Chambers, 1st Floor,
18/7-8, Arya Samaj Road, Karol Bagh
New Delhi -110 005 (Insurer)
........RESPONDENTS

Date of filing of Claim Petition : 16.08.2007
********************

Page No.21 of 313
CASE-Z1
Suit No.259/11
Unique Case ID No.02401C-0886502007

Sh. Hari Om Mahna S/o Sh. Shadi Lal Mahna
R/o H.No. 29/56, 1st Floor,
West Patel Nagar, Delhi-110 008
........PETITIONER
Versus
1. Sh.Nasir Ali @ Raj Singh
S/o Abdul Karim,
R/o C/o Sh.Sunder Chandelia,
WZ-53, 80 Gaj, Harijan Colony,
Near Valmiki Mandir, Tilak Nagar,
PS Tilak Nagar, Delhi-18
Also at:
C/o Harvinder Singh S/o Sh. Pritpal Singh,
Office-6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Driver)

2. Sh.Harvinder Singh S/o Sh. Pritpal Singh,
6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Owner)

3. The New India Assurance Company Ltd.
Office- Keltron Chambers, 1st Floor,
18/7-8, Arya Samaj Road, Karol Bagh,
New Delhi -110 005 (Insurer)
........RESPONDENTS

Date of filing of Claim Petition :01.09.2007
********************

CASE-Z2
Suit No.257/11
Unique Case ID No.02401C-0886322007

Baby Aastha Mahna D/o Sh. Hari Om Mahna,
R/o H.No. 29/56, 1st Floor,
West Patel Nagar, Delhi-110 008
........PETITIONER

Page No.22 of 313
Versus
1. Sh.Nasir Ali @ Raj Singh
S/o Abdul Karim,
R/o C/o Sh.Sunder Chandelia,
WZ-53, 80 Gaj, Harijan Colony,
Near Valmiki Mandir, Tilak Nagar,
PS Tilak Nagar, Delhi-18
Also at:
C/o Harvinder Singh S/o Sh. Pritpal Singh,
Office-6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Driver)

2. Sh.Harvinder Singh S/o Sh. Pritpal Singh,
6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Owner)

3. The New India Assurance Company Ltd.
Office- Keltron Chambers, 1st Floor,
18/7-8, Arya Samaj Road, Karol Bagh,
New Delhi -110 005 (Insurer)
........RESPONDENTS

Date of filing of Claim Petition : 01.09.2007
********************

CASE-Z3
Suit No.260/11
Unique Case ID No.02401C-088432007

Shalu Mahna W/o Sh.Hari Om Mahna
R/o H.No.29/56, 1st Floor, West Patel Nagar,
Delhi-18 ........PETITIONER
Versus

1.Sh. Nasir Ali @ Raj Singh
S/o Abdul Karim,
R/o C/o Sh.Sunder Chandella,
WZ-53, 80 Gaj, Harijan Colony,
Near Valmiki Mandir, Tilak Nagar,

Page No.23 of 313
PS Tilak Nagar, Delhi-18
Also at:
C/o Harvinder Singh S/o Sh.Pritpal Singh,
Office 6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Driver)

2. Sh.Harvinder Singh S/o Pritpal Singh
R Office 6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Owner)

3. The New India Assurance Company Ltd.
Keltron Chambers, 1st Floor,
18/7-8, Arya Samaj Road, Karol Bagh
New Delhi -110 005 (Insurer)

........RESPONDENTS

Date of filing of Claim Petition :01.09.2007
********************

JUDGMENT
1. Vide this award, I shall dispose of twenty nine
separate claim petitions arising out of accident of bus no. DL
1PC 7676 on 20.06.2007 about 11:00PM which was carrying
passengers on a pilgrimage tour from Delhi. The accident was
caused as the bus proceeded to Katra (Mata Vaishno Devi
Shrine) from Dharamshala (Kangra), HP and fell in a valley at
Kantchi More as the driver lost control of the bus. The bus is
alleged to have been driven by Respondent No.1 at a high speed
and in a rash and negligent manner in the hilly area despite
being warned by the passengers. Consequently, several
passengers suffered grievous injuries and 13 innocent lives were
lost while the driver of the bus jumped out out of the bus to save

Page No.24 of 313
himself. FIR No.125/07 U/s 279/337/304A IPC was registered
at PS: Dharamsala, District Kangra regarding the accident.

2. In the joint Written Statement filed on behalf of
Respondent No.1 & 2 (i.e. driver and owner of the offending
vehicle) in the respective cases, it was submitted that the case
had been fabricated in collusion with the police and no accident
had occurred by the vehicle of the answering respondents. It
was denied that some of the victims were travelling along with
other passengers in bus no.DL 1 PC 7676 for pilgrimage on
20.06.2007 or that the bus was involved in the accident. The
amount claimed in the respective claim petitions was further
stated to be exorbitant & excessive and other averments in the
claim petitions on the point of compensation were denied.

In the Written Statements filed on behalf of
Respondent No.3 The New India Assurance Company Ltd.,
in the respective suits, the claim was stated to be excessive and
exorbitant. It was further submitted that if the driver of the
offending vehicle was not having valid and effective driving
licence or was otherwise disqualified for obtaining the same,
the insurance company shall not be liable. The petitions were
stated to be bad for non-joinder of actual driver who was driving
the vehicle at the time of accident. It was also submitted that the
insured had willfully committed the breach of terms of policy by
carrying more passengers than the permitted carrying capacity
which contributed in the occurrence of the accident. However, it
was admitted that vehicle No.DL 1 PC 7676 was insured with
Page No.25 of 313
the respondent Insurance Company for the period 20.11.2006 to
19.11.2007. It was denied with reference to the respective
petitions that the petitioners were travelling in the bus or the
accident took place as alleged.

In the amended Written Statement filed on behalf of
insurance company it was further submitted that as per the
investigation by the Insurance Company and on the basis of
police record, it was found that no licence bearing
no.407/AG/05 was issued by Agra Road Transport Authority in
favour of Nasir Ali (driver of offending bus) covering the date of
accident. Further as per the record of RTO, Agra the licence was
issued in the name of Ravi Kumar Aggarwal and as such the
respondent/insured committed the breach of terms of policy by
employing driver, who was not having an effective and valid
driving licence.

3. At this stage itself reference may be made to order
dated 27.09.2010 whereby following observations were made by
Ld. Predecessor regarding recording of evidence.

"27.09.10
.......................................
Relating to the same incident, there are 28 separate petitions
pending. It is stated by ld. counsels that it will be difficult to
take up all the 28 cases on the same day as the testimony of
petitioners and some witnesses in each of the cases or group
of cases will be different whereas testimony of some of the
witnesses will be common. As suggested by the ld. counsels
for all the parties that in the bigger group of cases, case
bearing no.284/10 be treated as smaller group for the
purpose of consolidation and recording of evidence.
Testimony of particular witnesses which are relevant only for
this petitions may be recorded in this case whereas the
testimony of common witnesses which are common in all 28
cases may be recorded in the main case titled Sapna Talwar
Vs. Raj Singh.
............................."

Page No.26 of 313
It was further observed by ld. Predecessor vide order
dated 06.12.2012 as follows:

"............Vide orders dated 06.08.2008 of my Ld. Predecessor
as many as 28 cases arising out of the same accident were
consolidated so as to avoid any confusion. As issue No.1
was common in all the petitions the evidence was ordered to
be recorded in the main file titled as 'Sapna Talwar Vs. Raj
Singh & Ors.' to be read in all the cases on Issue No.1.
.................."

It may also be noticed that the evidence and the
documents relating to some of the claim petitions have been
placed by the counsels by clubbing in the connected files
relating to the petitioners belonging to the same family. Given
long pendency of over seven years from the filing of claim
petitions and the difficulties expressed by the counsels in
placing the certified copies of evidence/relevant exhibits in each
and every case, all the 29 cases have been taken up together for
disposal.

4. It may also be observed that issues have been
separately framed in some of the petitions while the others were
consolidated for the purpose of framing of issues from time to
time by ld. Predecessors, which have been hereinafter reflected
beneath the respective cases for sake of convenience. The first
issue in all the claim petitions in common relates to "whether
the accident had taken place due to rash and negligent driving
by Respondent No.1 (i.e. driver of bus bearing Regn. No. DL-
1PC-7676)" and the same has been dealt in lead case bearing
Suit No.307/11 titled as 'Sapna Talwar Vs. Raj Singh & Ors.'
dealing with common evidence on aforesaid issue.

Issue No.2 relating to assessment/computation of

Page No.27 of 313
compensation in the respective cases has been thereafter
separately dealt with under the respective suits along with the
relevant evidence.

Thereafter, the common issue on the point of liability
of the payment of compensation as disputed between the
registered owner of the offending vehicle and insurance
company has been dealt with along with relevant evidence led
on behalf of Respondent No.2/insured and Respondent
No.3/insurer.

*****************

5. CASE-A

Suit No.307/11
Unique Case ID No.02401C-0674242007

1. Sapna Talwar W/o Late Sh.Madan Lal Talwar, (Wife)

2. Kamal Talwar S/o Late Sh.Madan Lal Talwar, (Son)

3. Sachin Talwar S/o Late Sh.Madan Lal Talwar, (Son)
Versus
Raj Singh @ Nasir Ali & Ors.

As per the case of the petitioners, Sh.Madan Lal
Talwar (since deceased) had boarded bus no.DL 1 PC 7676 for
pilgrimage and expired in the accident on 20.06.2007. It is
further claimed that deceased Madan Lal Talwar aged about 65
years was employed as Supervisor at Jagdish Dheer & Company
and earning about Rs.5,000/- per month. The petition has been
preferred by Smt. Sapna Talwar (wife of deceased) aged about
56 yeas along with two major sons Kamal Talwar aged about 34

Page No.28 of 313
years and Sachin Talwar aged about 31 years as disclosed in the
petition.

6. On the pleadings of the parties, following issues were
framed for consideration vide order dated 31.03.2008 by ld.
Predecessor:-

(i) Whether the deceased Shri Madan Lal
Talwar died on account of rash and negligent
driving of bus bearing registration no.DL 1 PC
7676 at Kanchi Mode, Dharamshala, District
Kangra, HP by Respondent No.1?

(ii) Whether the petitioners are entitled to any
compensation, if so, how much and from
whom?

(iii) Relief.

7. In support of the claim petition two witnesses were
examined namely PW1 Smt. Sapna Talwar (wife of deceased)
and PW2 ASI Mohinder Singh. It may be observed that PW2
ASI Mohinder Singh has been examined in common to prove
the record of criminal proceedings and a copy of statement has
been placed in the respective cases.

PW1 Sapna Talwar deposed on the lines of claim
petition and proved copy of Ration Card (Ex.PW1/1),
photocopy of death certificate of deceased (Ex.PW1/2),

Page No.29 of 313
photocopy of her Election I-card (Ex.PW1/3), photocopy of
Election I-card of petitioner no.2 (Ex.PW1/4), certified copy of
postmortem report of deceased (Ex.PW1/5) and certified copy of
FIR (Ex.PW1/6).

She further deposed that petitioner no.2 Kamal
Talwar aged about 34 years is the married son of the deceased
and petitioner no.3 Sachin Talwar is unmarried son of the
deceased aged about 26-27 years and is permanently
handicapped.

On cross-examination, she clarified that she was not
travelling in the said bus and could not tell the number of
persons travelling in the bus. She further admitted that in the
petition the age of deceased was mentioned as 65 years and she
did not possess any document to show that deceased was
employed with M/s Jagdish Dheer and Company.

PW2 ASI Mohinder Singh, PS Dharamashala,
District Kangra HP proved the attested copy of criminal case
record (Ex.PW2/1-collectively 157 sheets).

On cross-examination, he clarified that he was not
the investigating officer of the case and could not say as to how
many persons expired or sustained injuries in the accident.

8. On behalf of Respondent No.2 (M/s Pritpal Bus
Service) three witnesses were examined as relied upon in all the
claim petitions, namely R2W1 Harvinder Singh
Oberoi/Proprietor Pritpal Bus Service, R2W1 Sh.Santosh Kumar
Dealing Assistant, District Transport Authority, Rajpur Road,

Page No.30 of 313
New Delhi to prove the permit and R2W3 Sh.Sampat Naik,
MLO, Transport Authority, Burari.

R2W1 Harvinder Singh Oberoi (owner of the
offending vehicle) testified that he was running travel agency in
the name of M/s New Pritpal Bus Service, situated at 6/1, Prem
Nagar, Tilak Nagar, New Delhi-18 and was holding a valid
driving licence for driving a heavy motor vehicle since 1981.
Further respondent no.1 Raj Singh approached him somewhere
in June 2006 for appointing him as a driver for bus. He had seen
the driving licence of respondent no.1 which appeared to be
genuine and respondent no.1 was authorised as per licence to
drive motorcycle/light motor vehicle, transport vehicles and
PSV. Further he had taken the driving test of respondent no.1
and on being satisfied with the driving sense, respondent no.1
was appointed as a driver. On receiving information regarding
the accident at Dharamala he had reached the site of accident.
The licence was seized by the police, PS Dharamsala in case
FIR No.125/07. He further stated that the bus was
mechanically fit to run on the road and was purchased in the
year 2005. Further he was in possession of All India Tourist
permit. He further proved the copy of RC (Ex.R2W1/1),
original Insurance policy (Ex.R2W1/2), attested copy of FIR
(Ex.R2W1/3), original receipt of road tax of Delhi
(Ex.R2W1/4), original road tax/permit of Himachal Pradesh
(Ex.R2W1/4), original road tax/permit (Ex.R2W1/5), copy of
India Tourist Permit (Mark-X), copy of fitness certificate (Mark-
Y), copy of seizure memo of DL of driver of the offending

Page No.31 of 313
vehicle (Ex.R2W1/6).

On cross-examination by counsel for The New
India Assurance Company Ltd., he deposed that he was
running the transport business since 1978 and had engaged 7-8
drivers. He used to retain the photocopy of the driving licence
of the driver employed by him. Further the driver employed by
him for the bus involved in the accident was Nasir Ali and he
had not obtained any identity proof from Nasir Ali. He further
stated that appointment letter was never issued by him and
neither he obtained verification of driving licence of the driver.
He admitted that the driving licence which was given by the
driver did not bear endorsement for driving in hilly area. He
further clarified that there is no provision in the UP Motor Rules
where by the driver is required to have endorsement to drive in
the hills on the licence. Further the vehicle was to travel from
Delhi to Chandigarh, Naina Devi, Baba Balak Nath, Chintpurni,
Jwalaji, Kangra, Chamunda, Dharamshala, Meclodganj, Katra
and finally return back to Delhi. He further proved the contract
Ex.R2W1/DX and stated that the bus owned by him was 30
seater. He proved the list of passengers Ex.R2W1/DX1 and
stated that the list was given to the insurance company at the
time of claim but did not know if any acknowledgment was
obtained.

He further admitted having filed a claim case before
the Consumer Forum seeking damages for the bus and had
placed the list Ex.R2W1/DX1. He further admitted that the bus
had carrying capacity of 29 passengers besides one driver and
conductor and the coverage was obtained for 29 passengers only.

Page No.32 of 313
He denied that Ex.R2W1/DX and R2W1/DX1 were forged and
fabricated or that he was aware that respondent no.1 was not
having a valid licence.

R2W2 Santosh Kumar, Dealing Assistant, District
Transport Authority, Rajpur Road, Delhi proved the permit
of vehicle bearing registration No.DL 1 PC 7676 and submitted
that the same was issued for the period upto 28.10.2010. He
further stated that the authorisation bearing No.AITP/0462/2005
was valid from 29.10.2005 to 28.10.2006 and the permit was for
'All India Tourist permit'. He further proved the certified copy
of the same as Ex.R2W2/1.

On cross-examination he submitted that the
authorisation as mentioned in para 12 of Ex.R2W2/1 is required
to be renewed every year. Further the said authorisation was
renewed for the period 04.11.2006 to 27.10.2007 and the sitting
capacity was mentioned as S.No.11 in Ex.R2W2/1.

Page No.33 of 313
from 29.10.2005 to 28.10.2010 (Ex.R3W3/3). He further stated
that permit no.AITP/0462/2005 was valid from 04.11.2006 to
27.10.2007. Further the original permit was issued for five
years from 29.10.2005 to 28.10.2010 and thereafter the renewal
is on yearly basis from 04.11.2006 to 27.10.2007.

On cross-examination, he denied that the record
produced by him was not correct. He further stated that the total
capacity of the aforesaid bus was for 31 persons and cannot
carry more than said capacity.

9. Respondent No.3, New India Assurance Company
Ltd. examined two witnesses as relied upon in all the claim
petitions, namely Sh.Pramod Kumar, Clerk from RTO Office,
Agra U.P. (R3W1) to prove that licence possessed by
Respondent No.1 was fake and Sh.C.N.Sharma, Administrative
Officer, The New India Assurance Company Ltd. (R3W2).

R3W1 Sh.Pramod Kumar, Clerk from RTO
Office, Agra, U.P. testified that licence bearing No.407 dated
07.01.2005 was issued in the name of Sh.Ravi Kumar Aggarwal
S/o Sh.R.C.Aggarwal, R/o Karamyogi Club, Kamla Nagar, Agra
U.P. and valid for motorcycle and LMV (Private). Further, the
licence No.407 was not issued in the name of Nasir Ali S/o
Abdul Karim in the year 2005 and also proved the extract of
register (Ex.R3W1/1). He further stated that he had also
brought the register containing the record pertaining to licence
no.2463 which was issued on 23.02.2001 in the name of Ansar
Khan S/o Sh.N. Khan, R/o Ptholi, Agra, U.P. and proved the
copy of the same as Ex.R3W1/2.

Page No.34 of 313
On cross-examination on behalf of petitioners he
denied that the DL no.407/05 was issued to Nasir Ali.

R3W2 C.N.Sharma, Administrative Officer, The
New India Assurance Company Ltd. testified that vehicle
no.DL 1PC 7676 was insured for the period 20.11.2006 to
19.11.2007 and a notice dated 30.06.2012 U/O 12 Rule 8 CPC
was issued to owner to produce the insurance policy. He further
proved on record policy issued by the Insurance Company in
favour of the insured vehicle (Ex.R3W2/1), Notice U/o 12 Rule
8 CPC issued to owner of the offending vehicle (Ex.R3W2/2),
postal receipt (Ex.R3W2/3). He further stated that another
notice U/s 12 Rule 8 was issued to driver and owner of the
offending vehicle for production of original policy, DL, fitness
and permit and proved the notice U/o 12 Rule 8 CPC
(Ex.R3W2/4), postal receipts (Ex.R3W2/5 & Ex.R3W2/6). He
further testified that another notice U/o 12 Rule 8 CPC was
given to driver and owner of the offending vehicle (Ex.R3W2/7)
and further proved the postal receipts (Ex.R3W2/8 and
Ex.R3W2/9).

He further testified that the insured vehicle was
authroised to carry 30 passengers and premium was accordingly
charged by the insurance company. However, the insured
contrary to the terms of the permit was carrying 37 passengers at
the time of the accident and committed the breach of the terms
and permit of the policy. He further proved the certified copy of
permit of the offending vehicle (Ex.R3W2/10) and copy of RC
of the offending vehicle (Ex.R3W2/11).

Page No.35 of 313
He further testified that the Investigator Sh.Ranjan
Sharma deputed by the insurance company after the
investigation submitted a report MARK-A dated 09.01.2010
whereby it was reported that 13 persons had died in the accident
and 24 were injured.

He further testified that State Government had got
detailed mechanical inspection report of the vehicle through
Manager, HRTC, Dharamsala, who pointed out that 11 persons
had died and 26 were injured. The copy of the report issued by
SHO was proved as (Ex.R3W2/12). He further testified that DL
bearing no.407/AG/05 possessed by Raj Singh @ Nasir Ali was
found to be fake on verification. The copy of the licence was
further exhibited as Ex.R2W1/13.

10. I have heard counsel for parties and perused the
record and issue-wise findings are as under :-

Issue No. (i)
Whether the petitioner sustained injuries on
account of rash and negligent driving of DL 1
PC 7676 on 20.06.2007 at Bamukan Kantchi
Mor, Dharamshala, HP by Respondent no.1?

At the outset it may be mentioned that the finding
on issue no.1, whether the accident had been caused due to
rash and negligent driving by Respondent no.1 is common in
all the cases and is dealt in the present case itself.
In Bimla Devi and Ors. V. Himachal Road

Page No.36 of 313
Transport Corporation and Ors. , (2009) 13 SC 530, it was held
that in a petition u/s 166 of the Motor Vehicles Act, 1988 the
Claim Tribunal has to decide the negligence on the touchstone
of preponderance of probability and holistic view is to be taken
while dealing with the Claim Petition. In New India Assurance
Co. Ltd. V. Sakshi Bhutani & ors , MAC APP. 550/2011 decided
on 02.07.2012 by Hon'ble Mr. Justice G.P. Mittal (Delhi High
Court), it was observed that it has to be borne in mind that the
Motor Vehicles Act does not envisage holding a trial for a
petition preferred under Section 166 of the Act. Under Section
168 of the Act, a Claims Tribunal is enjoined to hold an inquiry
to determine compensation which must appear to it to be just.
Strict rules of evidence are not applicable in an inquiry
conducted by the Claims Tribunal. Further in State of Mysore
Vs. S.S. Makapur, 1993 (2) SCR 943, Hon'ble Supreme Court
held that the Tribunals exercising quasi-judicial functions are
not courts and are not bound by strict rules of evidence. The
relevant portion of the report is extracted hereunder:

".......that tribunals exercising quasi-judicial
functions are not courts and that therefore they
are not bound to follow the procedure
prescribed for trial of actions in courts nor are
they bound by strict rules of evidence. They can
unlike courts, obtain all information for the
points under the enquiry from all sources, and
through all channels, without being fettered by
rules and procedure, which govern proceedings
in court. The only obligation which the law
casts on them is that they should not act on any
information which they may receive unless they
put it to the party against whom it is to be used
and give him a fair opportunity to explain it.
What is a fair opportunity depend on the facts
and circumstances of each case but where such

Page No.37 of 313
an opportunity has been given, the proceedings
are not open to attack on the ground that the
enquiry was not conducted in accordance with
the procedure followed in courts."

Reference may also be made to observations in
Ranu Bala Paul & Others vs. Bani Chakraborty 1999 ACJ
634 Gauhati wherein the claim was allowed after consideration
of FIR before the Tribunal.

"In deciding a matter Tribunal should bear
in mind the caution struck by the Apex Court
that a claim before the Motor Accident Claims
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
Accident Claim 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 the 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 a criminal case. After all, it is a
summary enquiry and this is a legislation for
the welfare of the society. In N.K.V. Bros. ( P)
Ltd. v. M. Marumai Ammal , 1980 ACJ 435
(SC), the Supreme Court pointed out that the
Accidents Claims Tribunal must take special
care to see that 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."

Now coming back to the present case, it may be
appropriate to refer to the evidence of the witnesses who
Page No.38 of 313
sustained injuries in the accident and survived. The testimony
of witnesses clearly reflects that the accident was caused due to
rash and negligent driving by respondent no.1.

i) In suit No.309/11 Pooja Talwar vs. Raj Singh &
Ors., petitioner Pooja Talwar (PW1) sustained grievous
injuries in the accident and testified that the accident
was caused due to rash and negligent driving of bus by
respondent no.1.

During cross-examination, she reiterated
that the driver of the bus was not driving the bus
properly as it was noticed by her during the course of
travelling. Further she was seated on the second seat
from the driver's seat and clarified that the driver of the
bus was driving in a rash and negligent manner despite
being warned by several passengers.

ii) PW1 Sh.Surender Nijhawan (petitioner in Suit
No.322/11, 323/11, 324/11 and 325/11 who lost his
wife and daughter in the accident and also himself
suffered severe injuries along with his son Master
Akashay) deposed that the accident was caused due to
rash and negligent driving by respondent no.1. On
cross-examination he clarified that he was sitting on the
front side and was awake at the time of accident.
Further the bus was driven at a high speed and the
driver was warned by a passenger sitting ahead of him
to drive slowly.

Page No.39 of 313
iii) PW1 Bimla Ahuja in Suit No.195/11, who
sustained injuries in the accident and lost her son and
husband in the accident deposed that the driver of the
bus was warned by several passengers to drive
carefully as he was driving the bus in a negligent
manner.

iv) PW1 Hari Om Mahana (in Suit No.259/11)
suffered grievous injuries/disability in the accident also
deposed that the accident had been caused due to rash
and negligent driving by Respondent No.1 and he was
seated on the front seat in the bus at the time of
accident.

v) PW4 Smt. Anu Gulati in Suit No.657/11 & 658/11
also deposed that the accident was caused due to rash
and negligent driving by Respondent No.1 as the bus
was driven at a high speed.

It may be noticed that testimony of material
witnesses could not be dented during cross-examination and the
accident stands corroborated by the site plan and mechanical
inspection report prepared during the course of criminal
proceedings. It may also be observed that respondent no.1
failed to enter the witness box to refute the testimony of material
witnesses on record and also stands chargesheeted U/s
279/337/304A IPC vide FIR No.125/07 registered at PS
Dharamsala, District Kangra. Further no complaint regarding

Page No.40 of 313
false implication was ever filed on behalf of respondent no.1.
Since negligence has to be assessed on touch stone of
preponderance of probability, it has been established that the
accident was caused due to rash and negligent driving by
Respondent No.1. Issue No. 1 is accordingly decided in
favour of the petitioners and against the respondents.

11. Issue No. (ii)
Whether the petitioners are entitled to any
compensation, if so, how much and from whom?

Admittedly, no documentary evidence has been
placed on record to prove the factum of employment of deceased
Madan Lal Talwar at Jagdish Dheer & Company at Rs.5,000/-
per month. Neither the employer of the concerned company
wherein deceased is claimed to be working was summoned. In
absence of any cogent evidence to prove the employment and
income of the deceased, the same is assessed on notional basis
on the basis of minimum wages as notified by Govt. of NCT of
Delhi of an unskilled labourer for the relevant period @
Rs.3,470/- per month.

(a) If addition in income towards future prospects is to
be made
Petitioners have claimed that addition towards future
prospects be made but the same has been vehemently opposed
by counsel for Insurance Company.

Observations in MAC Appeal No.544/07 decided on

Page No.41 of 313
06.05.2016 by Hon'ble Mr.Justice R.K.Gauba in ICICI
Lombard General Insurance Company Ltd. vs. Smt. Nagina
Begum & Anr. on the point of addition of future prospects may
be noticed.

"4. In the case reported as Sarla Verma & Ors. vs.
Delhi Transport Corporation & Anr. , (2009) 6 SCC
121, Supreme Court, inter-alia, ruled that the element
of future prospects of increase in income will not be
granted in cases where the deceased was "self
employed" or was working on a "fixed salary". Though
this view was affirmed by a bench of three Hon'ble
Judges in Reshma Kumari & Ors. vs. Madan Mohan &
Anr. , (2013) 9 SCC 65, on account of divergence of
views, as arising from the ruling in Rajesh & Ors. vs.
Rajbir & Ors., (2013) 9 SCC 54, the issue was later
referred to a larger bench, inter-alia, by order dated
02.07.2014 in National Insurance Company Ltd. vs.
Pushpa & Ors. , (2015) 9 SCC 166.

5. Against the above backdrop, by judgment dated
22.01.2016 passed in MAC Appeal No.956/2012 ( Sunil
Kumar vs. Pyar Mohd. ), this Court has found it proper
to follow the view taken earlier by a learned single
judge in MAC Appeal No.189/2014 ( HDFC Ergo
General Insurance Co. Ltd. vs. Smt. Lalta Devi & Ors. )
decided on 12.01.2015, presently taking the decision in
Reshma Kumari (Supra) as the binding precedent, till
such time the law on the subject of future prospects for
those who are "self-employed" or engaged in gainful
employment at a "fixed salary" is clarified by a larger
bench of the Supreme Court.

I am of the considered view that in view of the
aforesaid legal position as pointed out the Hon'ble High
Court and in absence of any evidence with regard to good
future prospects of deceased in the instant case, addition of
income towards future prospects cannot be made for the
purpose of compensation.

Page No.42 of 313
(b) Deduction towards personal and living expenses
of the deceased:
The elder son of the deceased namely Kamal Talwar
is married and nothing has been brought on record to show in
case he was financially dependent on the deceased. Considering
the fact that petitioner no.3 Sachin Talwar (younger son of the
deceased) is stated to be handicapped and dependent upon the
deceased, the number of dependents is taken as two for the
purpose of assessment of compensation. As per Sarla Verma
(Smt.) & Ors. vs. Delhi Transport Corporation & Anr. (2009) 6
SCC 121, the deduction towards personal and living expenses
of the deceased should be one-third (1/3rd) where the number of
dependent family members is 2 to 3, 1/4th where the number of
dependent family members is 4 to 6 and 1/5th where the number
of dependent family member exceeds 6.
In the present case considering the number of
dependents as two, the deduction towards personal and living
expenses of the deceased shall be 1/3rd as held in Sarla Verma's
case (supra).

(c) Selection of multiplier:
The deceased is stated to be aged about 65 years in
the petition. As per the copy of ration card (Mark-C) the date of
birth of deceased is reflected as 1942. In the absence of exact
date of birth of deceased and any evidence to the contrary, the
age of deceased is considered within the bracket of 60-65 years
for the purpose of applying the relevant multiplier. As per

Page No.43 of 313
Sarla Verma (Smt.) & Ors. vs. Delhi Transport Corporation &
Anr. (2009) 6 SCC 121, the multiplier of 07 is to be adopted
for the purpose of assessment of compensation.

(d) Loss of financial dependency
In the light of aforesaid facts, loss of financial
dependency of the petitioners comes to Rs.1,94,320/- [i.e.
Rs.3,470/-(notional income) X 12 (months) X 07 (multiplier) X
2/3 (dependency)].

12. Compensation under non-pecuniary heads:
Though a wide discretion in determination of
compensation is given but the amplitude of such powers has to
be exercised in consonance with settled principles. It needs to be
borne in mind that compensation is neither expected to be
windfall or bonanza or source of profit but at the same time
should not be pittance.
It has been held by the Hon'ble Apex Court in Rajesh
& Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 that the
compensation is to be awarded for a sum of Rs.1 lakh each
towards loss of love and affection and loss of consortium,
Rs.25,000/- towards funeral expenses and Rs.10,000/- towards
loss of estate.
Further, interest @ 9% per annum was awarded on
the award amount by the Hon'ble Apex Court in Municipal
Corporation of Delhi v. Association of Victims of Uphaar
Tragedy , 2012 ACJ 48 (SC).
Petitioners are accordingly entitled to Rs.1 lakh

Page No.44 of 313
towards loss of consortium to petitioner no.1 (wife), Rs.1 lakh
towards loss of love and affection, Rs.25,000/- towards funeral
expenses and Rs.10,000/- towards loss of estate.

13. Petitioners/claimants are accordingly entitled to
compensation computed as under:
Loss of financial dependency Rs.1,94,320/-
Loss of Consortium to Wife Rs.1,00,000/-
Loss of love and affection Rs.1,00,000/-
Loss of Estate Rs.10,000/-
Funeral Expenses Rs.25,000/-
________________
Total Rs.4,29,320/-
________________

(Rupees Four Lakh Twenty Nine Thousand Three Hundred and Twenty only)

The claimants/petitioners are also entitled to interest
@ 9% p.a. from the date of filing of petition w.e.f. 13.07.2007
till realization.
The amount of interim award, if any, shall however
be deducted from the above amount, if the same has already
been paid to the petitioner.

14. It has already been observed that elder son of the
deceased was admittedly married and nothing has been brought
on record if he was financially dependent upon deceased. In
view of above, petitioner no.2 Shri Kamal Talwar shall be
entitled to Rs.50,000/- out of the compensation amount for loss
of love & affection and support of his father.
Further, for the purpose of disbursement,

Page No.45 of 313
petitioner no.1 & 3 each shall be entitled to 50% of the balance
award amount with up to date interest. On realization, an
amount of Rs.50,000/-each (Rupees Fifty Thousand only) shall
be released to the petitioner no.1 & 3 and remaining amount
along with up-to-date interest shall be kept in five fixed deposits
of equal amount in their respective names for a period of one
year, two years, three years, four years and five years
respectively without the facility of advance, loan or premature
withdrawal with release of quarterly periodical interest in their
account.

*******************************

15. CASE-B

Suit No.309/11
Unique Case ID No.02401C-0674242007

Smt.Pooja Talwar W/o Sh.Kamal Talawar
Versus
Raj Singh @ Nasir Ali & Ors.

In brief, petitioner Smt. Pooja Talwar had boarded
bus no.DL 1 PC 7676 for pilgrimage on 17.06.2007 and
sustained injuries in the accident on 20.06.2007. It is further the
case of the petitioner that she is a housewife and loss of income
may be assessed on notional basis.

16. On the pleadings of the parties, following issues were
framed for consideration vide order dated 03.03.2008 by ld.
Predecessor :-

Page No.46 of 313
(i) Whether the petitioner suffered grievous
injuries on 20.06.2007 due to rash and
negligent driving of the vehicle No.DL 1 PC
7676 by Respondent No.1?

(ii) Whether the petitioner is entitled for any
compensation, if so, to what amount and from
whom?

(iii) Relief.

17. In support of the claim, petitioner was examined as
PW1.

PW1 Pooja Talwar testified on the lines of claim
petition that she was one of the passengers in bus no.DL 1PC
7676 on pilgrimage along with her relatives and friends. The
bus fell down at Kantchi Mode, PS Dharamsala, District Kangra,
HP on 20.06.2007 about 11:00PM due to rash and negligent
driving of respondent no.1 and she sustained injuries on scalp
and right foot. Further, she lost her father and Bhabhi in the
same accident. She further testified that she is a housewife and
could not resume household duty for about 03 months.

She also testified that her daughter Riya Talwar
(Minor), aged about 3 years also sustained accidental injuries
and proved photocopy of Election I-card (Ex.PW1/1), attested
copy of her MLC (Ex.PW1/2), copy of 12th certificate
(Ex.PW1/3) and attested copy of MLC of Riya Talwar

Page No.47 of 313
(Ex.PW1/4).

On cross-examination by counsel for Respondent
No.1 & 2 she clarified that the bus was plying continuously for
two hours and she was awake at the time of accident. Further
the driver of the bus was not driving the bus properly as it was
noticed by her during the course of travelling and she was seated
on the second seat from the driver seat. She further deposed that
the bus was hired by one Baldev and they had paid a fare of
Rs.2,000/-each. Further as per her estimate there were about 30-
35 passengers at the time of accident including minor children.
On further cross-examination by counsel for insurance company
she clarified that the driver of the bus was driving in a rash and
negligent manner despite being warned by several passengers.
Further her daughter was also travelling with her at the time of
accident but she had not filed any record of medical expenditure
of her daughter.

18. Issue No. (ii)
Whether the petitioner is entitled for any
compensation, if so, to what amount and
from whom?

It may be observed that for the purpose of assessment
of compensation, the nature of injuries, the parts of body
wherein the injury was sustained, surgery if any undertaken,
confinement in the hospital and duration of the treatment are
considered.

Counsel for the petitioner fairly admits that no

Page No.48 of 313
medical bills have been filed relating to the treatment. The
injuries sustained by the petitioner have been described in the
MLC as placed in suit no.307/11-Sapna Talwar's case on page
150 as follows:

"cut injury of scalp 3X2 cm in size, pain right foot,
advised X-ray".
Further, as per the case summary the patient was
discharged on the same date as no fracture was detected.

Considering the fact that the petitioner suffered
simple injuries and was not admitted as an indoor patient, there
does not appear to be any loss of income. However, considering
the fact that the petitioner remained under trauma and suffered
simple injuries in the accident, she is awarded a sum of
Rs.15,000/- towards pain and suffering for the injuries sustained
by her in the accident.

Also, a sum of Rs.5,000/- is awarded towards diet,
and conveyance for travelling from Himachal to Delhi after the
accident.

19. As discussed above, the overall compensation is
tabulated as under:

Loss of wages -NIL-
Pain and suffering Rs.15,000/-
Diet & conveyance Rs.5,000/-
Medical Bills -NIL-
___________
Total Rs.20,000/-
________________
(Rupees Twenty Thousand Only)

Page No.49 of 313
The claimant/petitioner is also entitled to interest @
9% p.a. from the date of filing of claim petiton i.e. w.e.f.
13.07.2007 till realization.

20. On realization, entire compensation amount along
with up-to-date interest shall be released to the petitioner.

*******************************

21. CASE-C

Suit No.308/11
Unique Case ID No.02401C-0674222007

Sh. Kamal Talwar, guardian/father of Ms. Riya Talwar,
Versus
Raj Singh @ Nasir Ali & Ors.

In brief, Smt. Pooja Talwar along with her
daughter/petitioner Riya Talwar aged about 03 years had
boarded bus no.DL 1 PC 7676 for pilgrimage and both had
sustained injuries in the accident on 20.06.2007.

22. On the pleadings of the parties, following issues were
framed for consideration vide order dated 03.03.2008 by ld.
Predecessor :-

(i) Whether the petitioner suffered grievous
injuries on 20.06.2007 due to rash and
negligent driving of the vehicle No.DL 1 PC
7676 by Respondent No.1?

Page No.50 of 313
(ii) Whether the petitioner is entitled for any
compensation, if so, to what amount and from
whom?

(iii) Relief.

23. Evidence in respect of injuries sustained by Pooja
Talwar and Riya Talwar was led in Suit No.309/11 and PW1
Pooja Talwar was examined in support of the claim petition.

24. Issue No. (ii)
Whether the petitioner is entitled for any
compensation, if so, to what amount and
from whom?

It may be observed that for the purpose of assessment
of compensation, the nature of injury, the parts of body wherein
the injury was sustained, surgery if any undertaken, confinement
in the hospital and duration of the treatment are considered.

Counsel for the petitioner admits that no medical
bills have been filed relating to the treatment. The injuries
sustained by the petitioner Riya Talward have been described in
the MLC (placed in suit no.307/11-on page 146) as follows:

"cut injury below right eye-2 cm in size and scratch
1X1 cm behind left ear".
Further, as per the case summary, patient was
discharged on the same day and the nature of injury is simple.

Admittedly, petitioner Riya Talwar suffered simple

Page No.51 of 313
injuries and was not admitted as an indoor patient. Considering
the fact that the petitioner simple injuries and remained under
trauma, she is awarded a sum of Rs.15,000/- towards pain and
suffering for the injuries sustained in the accident.

Also, a sum of Rs.5,000/- is awarded towards diet
and conveyance for travelling back from Himachal to Delhi.

25. As discussed above, the overall compensation is
tabulated as under:

Pain and suffering Rs.15,000/-
Diet & conveyance Rs.5,000/-
Medical Bills -NIL-
___________
Total Rs.20,000/-
________________
(Rupees Twenty Thousand Only)

The claimant/petitioner is also entitled to interest @
9% p.a. from the date of filing of claim petition i.e. w.e.f.
13.07.2007 till realization.

26. Since the injured is a minor, entire compensation
amount along with up-to-date interest shall be fixed deposited in
her name with a nationalised bank till she attains the age of
majority without the facility of loan, advance or premature
withdrawal with release of periodical interest in the account of
Shri Kamal Talwar (father of Riya Talwar) for benefit of minor.

***************************

27. CASE-D

Suit No.21/16

Page No.52 of 313
Unique Case ID No.02401C-0027012016

1. Sh. Ajay Tiwari S/o Lt.Sh.Kameshwar Tiwari (Son)

2. Sh. Amit Tiwari S/o Late Sh.Kameshwar Tiwari (Son)
Versus
Raj Singh @ Nasir Ali & Ors.

As per the case of the petitioners, deceased Kanti
Devi had boarded bus no.DL 1 PC 7676 for pilgrimage on
17.06.2007 and expired in the accident on 20.06.2007. It is
further the case of petitioners that the deceased was a widow and
is survived by her two sons namely Ajay Tiwari and Amit Tiwari
(i.e. petitioners aged about 20 years and 18 years respectively).
It is further claimed that deceased aged about 42 years was
working as a Peon with Central Social Welfare Board, Ministry
of Human Resource Development and drawing a salary of
Rs.10,000/- per month.

28. On the pleadings of the parties, following issues were
framed for consideration vide order dated 29.02.2008. This case
has been received on transfer by this Tribunal vide order dated
16.11.2015 passed by the Hon'ble High Court:

(i) Whether the deceased Smt. Kanti Devi had
sustained fatal injuries on 20.06.2007 at about
11:00PM at Kanchi Mode, PS Dharamshala,
Distt. Kangra, HP due to rash and negligent
driving of respondent no.1 Raj Singh while
driving bus bearing registration no.DL 1 PC
7676?

Page No.53 of 313
(ii) Whether the petitioners are entitled to any
compensation, if so, how much and from
whom?

(iii) Relief.

29. In support of the claim petition, three witnesses were
examined namely PW Ajay Tiwari (petitioner no.1), PW2 Pooja
Talwar and PW3 Jogender Singh Suri, UDC, Central Social
Welfare Board, Ministry of Woman & Child Development, New
Delhi.

PW1 Ajay Tiwari testified on the lines of claim
petition and stated that deceased was sole bread earner of the
family and employed as Peon at Central Social Welfare Board,
Ministry of Human Resource Development and was drawing a
salary of about Rs.10,000/- per month. PW1 and Petitioner no.2
aged about 18 years were unmarried and financially dependent
upon the deceased. He further proved copy of Ration Card
(Ex.PW1/1), copy of death certificate (Mark-X) and criminal
case record (Ex.PW1/2-collectively 13 pages).

On cross-examination, he stated that he came to
know about the accident on the next day through News Channel
and he along with his brother left the site of accident as his
father had predeceased. Further he had been given employment
on compassionate grounds.

PW2 Pooja Talwar testified that she was one of the
passengers in the bus which met with the accident due to rash

Page No.54 of 313
and negligent driving by respondent no.1. Further she had also
sustained the injuries in the accident and proved her Election I-
card (Ex.PW2/1).

In the short cross-examination she denied that she
was not travelling in the bus which met with the accident.

PW3 Sh.Joginder Singh, UDC, Central Social
Welfare Board deposed that deceased Smt. Kanti was working
in the office as Peon on monthly gross salary of Rs.10,133/- on
the date of accident i.e. June 2007 which would have increased
with the passage of time. He further proved the salary record
(Ex.PW3/1) and stated that deceased would have retired on
31.05.2023.

30. Issue No. (ii)
Whether the petitioners are entitled to any
compensation, if so, how much and from
whom?

In the present case petitioners have relied upon the
testimony of PW3 Sh.Joginder Singh, UDC, Central Social
Welfare Board who deposed that deceased Smt. Kanti was
working in the office at Peon on monthly gross salary of
Rs.10,133/- on the date of accident i.e. June 2007. He further
proved the salary record (Ex.PW3/1) and stated that deceased
would have retired on 31.05.2023. As per the pay slip for the
month of June 2007, the gross salary is reflected as Rs.10,133/-

Page No.55 of 313
on which the income tax is reflected as nil. The same has not
been disputed by counsel for insurance company and is
accordingly taken for the purpose of assessing loss of
dependency.

b) If addition in income towards future prospects is to
be made
Petitioners have claimed that addition towards future
prospects to the extent of 30% be made considering the fact that
deceased was aged about 42 years at the time of accident.

In Reshma Kumari & Ors. v. Madan Mohan & Anr. ,
(2013) 9 SCC 65 while approving the ratio with regard to future
prospects in Sarla Verma (Smt.) & Ors. (supra) and relying on
General Manager, Kerala State Road Transport Corporation,
Trivandrum v. Susamma Thomas (Mrs.) and Ors. (1994) 2
SCC 176; Sarla Dixit v. Balwant Yadav , ( 1996) 3 SCC 179 and
Abati Bezbaruah v. Dy. Director General, Geological Survey
of India & Anr. , 2003 (3) SCC 148, the Hon'ble Apex Court has
held as under:-

"38. With regard to the addition to income for future
prospects, in Sarla Verma [Sarla Verma v. DTC, (2009) 6
SCC 121 : (2009) 2 SCC (Civ) 770 :

(2009) 2 SCC (Cri) 1002], this Court has noted the ear-
lier decisions in Susamma Thomas [Kerala SRTC v.
Susamma Thomas , (1994) 2 SCC 176 : 1994 SCC (Cri)
335], Sarla Dixit [(1996) 3 SCC 179] and Abati
Bezbaruah [Abati Bezbaruah v. Geological Survey of In-
dia, (2003) 3 SCC 148 : 2003 SCC (Cri) 746] and in
para 24 of the Report held as under: ( Sarla Verma case
[Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC
(Civ) 770 : (2009) 2 SCC (Cri) 1002] , SCC p. 134):

Page No.56 of 313
"24. ... In view of the imponderables and uncertainties,
we are in favour of adopting as a rule of thumb, an addi-
tion of 50% of actual salary to the actual salary income
of the deceased towards future prospects, where the de-
ceased had a permanent job and was below 40 years.
(Where the annual income is in the taxable range, the
words „actual salary‟ should be read as „actual salary
less tax‟). The addition should be only 30% if the age of
the deceased was 40 to 50 years. There should be no ad-
dition, where the age of the deceased is more than 50
years. Though the evidence may indicate a different per-
centage of increase, it is necessary to standardise the ad-
dition to avoid different yardsticks being applied or dif-
ferent methods of calculation being adopted. Where the
deceased was self-employed or was on a fixed salary
(without provision for annual increments, etc.), the courts
will usually take only the actual income at the time of
death. A departure therefrom should be made only in rare
and exceptional cases involving special circumstances."

39. The standardization of addition to income for future
prospects shall help in achieving certainty in arriving at
appropriate compensation. We approve the method that
an addition of 50% of actual salary be made to the actual
salary income of the deceased towards future prospects
where the deceased had a permanent job and was below
40 years and the addition should be only 30% if the age
of the deceased was 40 to 50 years and no addition
should be made where the age of the deceased is more
than 50 years. Where the annual income is in the taxable
range, the actual salary shall mean actual salary less
tax. In the cases where the deceased was self-employed
or was on a fixed salary without provision for annual
increments, the actual income at the time of death with-
out any addition to income for future prospects will be
appropriate. A departure from the above principle can
only be justified in extraordinary circumstances and very
exceptional cases."

In view of the legal position as pointed out above
since the deceased in the instant case was permanently
employed and aged about 42 years, an addition of 30% is to
be made towards future prospects for the purpose of

Page No.57 of 313
compensation.

(c) Selection of multiplier and deduction towards
living and personal expenses
As per Sarla Verma (Smt.) & Ors. vs. Delhi
Transport Corporation & Anr. (2009) 6 SCC 121, the
deduction towards personal and living expenses of the deceased
should be one-third (1/3rd) where the number of dependent
family members is 2 to 3, 1/4th where the number of dependent
family members is 4 to 6 and 1/5 th where the number of
dependent family members exceeds 6.

As per Ration Card, the deceased was aged about 38
years on 20.08.2002. Accordingly the age of the deceased was
about 42 years 10 months on the date of accident. As held in
Sarla Verma (Smt.) & Ors. vs. Delhi Transport Corporation &
Anr. (2009) 6 SCC 121, multiplier of 14 would have been
normally adopted for the purpose of assessment of
compensation as per age of deceased.

However, in the present case, it may be observed that
the dependency of the petitioners, who are the sons of the
deceased aged about 20 and 18 years is not to be last the entire
lifetime but would have lasted in case of the younger son for a
period of about 07/08 years till he attained the age of 25/26
years to be fully financially independent. Further, the
dependency for the elder son aged about 20 years would have
lasted for a period of about 05/06 years. Further, the
dependency of the elder son ended as he had been provided with
compassionate appointment as admitted by PW1 during cross-

Page No.58 of 313
examination though it may be mentioned that the same cannot
be termed as a pecuniary advantage that comes under the
periphery of Motor Vehicles Act and any amount received on
such appointment is not liable for deduction. Reference may be
made to Vimal Kumar & Ors. v. Kishore Dan & Ors. , 2013
ACC 1441. As such, the financial dependency needs to be
assessed keeping in view the aforesaid peculiar circumstances as
the object remains to save the dependents from being deprived
of the source of their maintenance and as far as possible to
provide them with the means as were available to them in the
pre-accident period.

In Bajaj Allianz General Insurance Co. Ltd. v. Shri
Surender Kumar & Ors. MAC APP 1068/2013 decided by
Hon'ble Mr. Justice R.K. Gauba on 03rd May, 2016, the case
involved the death of Babu Lal aged about 58 years who was a
widower and was survived by son aged 31 years and daughter
aged 34 years. The insurer in appeal questioned the computation
of loss of dependency on the ground that the claimants son and
daughter were major and, therefore, not financially dependent
upon the father. The said contention was rejected by the Hon'ble
High Court referring to the law laid down in National
Insurance Co. Ltd. v. Meghji Naran Sortiya & Ors. 2009 ACC
289 (SC) and Devi Dutt & Ors. v. Manish Sharma & Ors.
MAC APP No.753/2010 decided by Hon'ble High Court of
Delhi on 19.04.2012.

In National Insurance Co. Ltd. v. Meghji Naran
Sortiya & Ors. 2009 ACC 289 (SC), the Hon'ble Apex Court in
Civil Appeal No. 1171 of 2002 was dealing with the claim

Page No.59 of 313
relating to death of mason aged about 58 years in motor
vehicular accident and was survived by a married son and
daughter-in-law. It was challenged by the insurance company
that there was no conclusive evidence that the married son and
daughter-in-law were dependent upon the deceased. In the facts
and circumstances of the case, it was held by the Hon'ble Apex
Court that 50% should have been deducted for personal and
living expenses of the deceased of the income of the deceased at
Rs.27,000/- per annum and not 1/3rd. Thus, the contribution to
the family (or the savings by the deceased even assuming that
claimants were fully dependent) would have been Rs.13,500/-
per annum.

In MAC APP 53/2010 Sandeep Tomar & Anr. vs.
Oriental Insurance Co. Ltd. & Others decided by Hon'ble Mr.
Justice G.P. Mittal on 25th May, 2012 (Delhi High Court),
deceased Smt. Rita Tomar died in a motor vehicular accident on
30.12.2003 and had an income of Rs.7,000/- per month as per
the Income Tax Return. The deceased was survived by two sons
aged about 21 and 18 years respectively. It was observed by the
Hon'ble High Court that even though the appellants therein were
not financially dependent upon the mother as the father had a
high income yet the surplus income of the mother would have
come to the hands of the appellants as loss to estate. In the facts
and circumstances, 50% of the deceased's income as savings to
the hands of the appellants was calculated as loss to estate.
Further, an amount of Rs.1 lakh was also awarded towards loss
of gratuitous services rendered by deceased.

I am of the considered view that considering the

Page No.60 of 313
peculiar facts and circumstances in the present case wherein the
dependency of the younger son is only to last for a period of
about 07/08 years and the elder son has been provided with the
compassionate appointment, the assessment of loss of
dependency be made considering that 50% of the savings by the
deceased would have landed in favour of the petitioners for the
remaining period for which the deceased would have
worked/survived. In view of above, instead of deduction of
1/3rd, the deduction of 1/2 is applied following National
Insurance Co. Ltd. v. Meghji Naran Sortiya & Ors. 2009 ACC
289 (SC). The loss of dependency is accordingly calculated at
Rs.11,06,524/- {Rs.10,133/- (income of the deceased) + 30%
(future prospects) X 12 (months) X 14 (multiplier) X 1/2
(deduction towards living and personal expenses}.

The gratuitous services rendered by working wife
and mother would be considerably reduced when they spent
most of their time on their profession. In the facts and
circumstances, a lumpsum compensation of Rs.1 lakh is also
awarded towards gratuitous services rendered by the deceased.

31. Compensation under non-pecuniary heads:

Page No.61 of 313
& Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 that the
compensation is to be awarded for a sum of Rs.1 lakh towards
loss of love and affection, Rs.25,000/- towards funeral expenses
and Rs.10,000/- towards loss of estate.
Further, interest @ 9% per annum was awarded
on the award amount by the Hon'ble Apex Court in
Municipal Corporation of Delhi v. Association of Victims of
Uphaar Tragedy , 2012 ACJ 48 (SC).
Considering the facts and circumstances, petitioners
are entitled to Rs.10,000/- towards loss of estate, Rs.1 lakh
(Rs.50,000/- each) towards loss of love and affection and
Rs.25,000/- towards funeral expenses.

32. The petitioners/claimants are accordingly entitled
to compensation computed as under:

Loss of financial dependency Rs.11,06,524/-
Loss of Love and affection Rs.1,00,000/
Loss of gratuitous services Rs.1,00,000/
Funeral Expenses Rs.25,000/
Loss of Estate Rs.10,000/-
________________
Total Rs.13,41,524/-
________________
(Rounded off to Rs.13,41,525/-)
(Rupees Thirteen Lakh Forty One Thousand Five Hundred & Twenty Five Only)

The claimants/petitioners are also entitled to interest
@ 9% p.a. from the date of filing of petition i.e. w.e.f.
05.07.2007 till realization.

33. For purpose of disbursement, petitioner no. 1 shall
Page No.62 of 313
be entitled to 40% & petitioner no.2 for 60% of the award
amount and proportionate interest thereon respectively.

On realization, out of the respective shares of
petitioner no. 1 & 2, a sum of Rs.50,000/- (Rupees Fifty
Thousand Only) each shall be released and remaining amount
shall be kept in seven fixed deposits of equal amount with a
nationalised bank in the names of petitioner no. 1 & 2 for a
period of one year, two years, three years, four years, five years,
six years and seven years respectively without the facility of
loan, advance or premature release with release of quarterly
periodical interest in their account.

******************************

34. CASE-E

Suit No.305/11
Unique Case ID No.02401C-0674262007

1. Sh.Rajeev @ Rajeev Malhotra
S/o Sh.Mohinder Kumar (Husband)

2. Master Jai Malhotra S/o Sh.Rajeev Malhotra (Son)
(Petitioner No.2 through his natural guardian/father Sh.Rajeev)

3. Smt. Sapna W/o Late Sh.Madan Lal
R/o 311, Railway Colony, Patel Nagar, New Delhi
Versus
Raj Singh @ Nasir Ali & Ors.

As per case of petitioners, deceased Smt. Goldy
Malhotra aged about 30 years had boarded bus no.DL 1 PC 7676
for pilgrimage on 17.06.2007 and expired in the accident on
20.06.2007. It is further the case of petitioners that the deceased
was 12th pass and besides doing household work was earning
Page No.63 of 313
Rs.5,000/- per month by way of teaching tuitions.

Master Jai Malhotra aged about 03 years (son of Smt.
Goldy Malhotra) also suffered injuries in the accident.

35. On the pleadings of the parties, following issues were
framed for consideration vide order dated 31.03.2008 by ld.
Predecessor:-

(i) Whether the petitioner suffered grievous
injuries on 20.06.07 due to rash and negligent
driving of the vehicle No. DL 1PC 7676 by R-
1?

(ii) Whether the petitioner is entitled to any
compensation, if so, how much and from
whom?

(iii) Relief.

36. In support of the claim, Shri Rajeev Malhotra
(husband of deceased) was examined as PW1.

PW1 Rajeev Malhotra testified that deceased is
survived by petitioner No.1(husband of deceased, who has since
not remarried), petitioner no.2 (minor son aged about 03 years)
and petitioner no.3 (mother of deceased aged about 56 years) .
He further testified that deceased, an income tax payee was
working as a tutor & interior designer and earning about
Rs.10,000/- per month. He further proved photocopy of Election

Page No.64 of 313
I-card (Ex.PW1/1), photocopy of Election I-card of deceased
(Ex.PW1/2), photocopy of death certificate of deceased
(Ex.PW1/3), original income tax returns of deceased for the
2003-06 (Ex.PW1/4-collectively 12 sheets), photocopies of
education qualification documents of deceased (Ex.PW1/5-
collectively 04 sheets) and attested copy of postmortem report
(Ex.PW1/6).

On cross-examination PW1 deposed that he was not
an eyewitness to the accident and his in-laws had booked the
ticket of deceased along with her kid. Further he was working
as a salesman in a furniture shop. He further denied the
suggestion that he was carrying the business in the name of
Goldy Interior in the name of his wife. He further admitted that
no document had been placed to show that deceased was
imparting tuition.

37. Issue No. (ii)
Whether the petitioners are entitled to any
compensation, if so, how much and from
whom?

The principles to assess the value of services
rendered by a homemaker so as to calculate the loss of
dependency are summed up in para 34 of Royal Sundram
Alliance Insurance Co. Ltd. vs. Manmeet Singh & Ors 2012
ACJ 721.

However, in the present case it is claimed that
deceased was earning by way of tuition and also carrying the

Page No.65 of 313
business of interior decoration. Reliance is further placed upon
the income tax return Ex.PW1/4-collectively filed by the
deceased for the assessment year 2003-04 (financial year
01.04.2002 to 31.03.2003), assessment year 2004-05 (financial
year 01.04.2003 to 31.03.2004) and assessment year 200-06
(financial year 01.04.2005 to 31.03.2005). As per return for the
assessment year 2003-04, the net income of the deceased was
Rs.82,428/- (income from business/profession Rs.83,450/-
minus tax paid Rs.1,022/-), As per return for the assessment
year 2004-05, the net income of the deceased was Rs.85,224/-
(income from business/profession Rs.86,530/- minus tax paid
Rs.1,306/-) and as per return for the assessment year 2005-06,
the net income of the deceased was Rs.1,04,780/- (income from
business/profession Rs.1,04,780/- minus tax paid Nil).

Since the returns were filed prior to the death of the
deceased there is no reason to disbelieve the same. In the facts
and circumstances for the assessment of compensation, the
income of the deceased is taken as average of returns for the last
three assessment years at Rs.90,810/-per annum (Rs.82,428/- +
Rs.85,224/- + Rs.1,04,780/- divided by 3) .

(a) If addition in income towards future prospects is to
be made
Petitioners have claimed that addition towards future
prospects to the extent of 50% be made considering the fact that
deceased was aged about 30 years but the same has been
vehemently opposed by counsel for Insurance Company.

It may be observed that in Shashikala & Ors. v.

Page No.66 of 313
Gangalakshmamma & Anr. 2015 (2) T.A.C. 867 (SC), separate
judgments were passed by Hon'ble Mr. Justice R. Banumathi
and Hon'ble Mr. Justice V. Gopala Gowda on the point of
assessment of addition to the income of the deceased towards
the future prospects in case of salaried persons vis-a-vis where
the deceased was self employed or on fixed wages. The case
was directed to be placed before the Hon'ble Chief Justice of
India for appropriate orders towards constitution of a suitable
larger Bench since the issue already stood referred to a larger
Bench in the case of National Insurance Company Ltd. v.
Pushpa S.L.P. (C) No. 16735/2014. Hon'ble Apex Court in
aforesaid case adverted to the judgements passed in Reshma
Kumar & Ors. v. Madan Mohan & Anr., VII (2013) S.L.T. 489
(rendered on 2nd April, 2013) and Rajesh vs. Rajbir Singh,
(2013) 9 S.C.C. 54 (rendered on 12th April, 2013 in which the
judgement passed in Reshma Kumari 's case was not
noticed). Reference was also made to the judgements passed
in Sarla Verma & Ors. v. Delhi Transport Corporation & Anr. ,
162 (2009) D.L.T. 278, Santosh Devi v. National Insurance Co.
Ltd. & Ors., 2012 6 S.C.C. 421, Sanjay Verma v. Haryana
Roadways , (2014) 3 S.C.C. 210, National Insurance Co. Ltd. v.
Pushpa, S.L.P. (C) No. 16735/2014 (whereby the matter in
relation to future prospects was referred to larger Bench). It
may further be noticed that Hon'ble Apex Court in Shashikala's
case did not provide addition towards future prospects pendente
lite the aforesaid issue, wherein the deceased was an income tax
payee carrying business of newspapers and had relied upon
Income Tax Returns for the Assessment Years 2005-06 and

Page No.67 of 313
2006-07.

In the aforesaid context, reliance may be further placed
upon MAC 79 of 2014 Bharti AXA General Insurance
Company Ltd. vs. Smt. Poonam & Ors. decided on 27.05.2015
by Hon'ble Mr. Justice G.P. Mittal (Delhi High Court) wherein
the judgements passed by the Hon'ble Apex Court in Munna
Lal Jain & Anr. Vs. Vipin Kumar Sharma & Ors., Civil Appeal
No.4497 of 2015 decided on 15.05.2015 {II (2015) ACC 806
(SC)} was also duly referred but the addition towards future
prospects was denied in the absence of any evidence of bright
future prospects. Reliance was therein placed upon Reshma
Kumari & Others vs. Madan Mohan & Anr. ( 2013) 9 SCC 65
and HDFC Ergo General Insurance Company Ltd. vs. Smt.
Lalta Devi & Others MAC APP No.189/2014 decided on
12.01.2015.

The observations made by the Hon'ble High Court on
the aspect of addition of future prospects as discussed in para 21
to 23 of MAC No. 79 of 2014 Bharti AXA General Insurance
Company Ltd. vs. Smt. Poonam & Ors. decided on 27.05.2015
(supra) may be beneficially quoted:

21. As far as future prospects are
concerned, there is no evidence on record
that the deceased had bright future
prospects. The question of grant of future
prospects was dealt with by this Court at
great length in HDFC Ergo General
Insurance Co. Ltd. v. Smt. Lalta Devi and
Ors., MAC APP No. 189/2014, decided on
12.01.2015. Paras 8 to 21 of the report in
Lalta Devi (supra) are extracted
hereunder:

Page No.68 of 313
8. It is no gainsaying that in
appropriate cases some addition towards
future prospects must be made in case of
death or injury of a person pursuing a
professional course. At the same time, it
cannot be laid down as a uniform
principle that every person pursuing
professional course will have a bright
future. There may be a student pursuing
engineering from the reputed engineering
colleges like Indian Institute of Technology
(IIT), Regional Engineering College or
any other reputed college. At the same
time, a number of engineering Colleges
have mushroomed where an engineering
graduate may find it difficult to secure a
job of an engineer. In the instant case,
deceased Aditya, as stated earlier was a
student of an unknown engineering
college, i.e. Echelon Institute of
Technology, Faridabad which is claimed to
be affiliated to Maharshi Dayanand
University, Rohtak. The Claimants have
placed on record result-cum-detailed
marks card of First and Second Semester.
It may be noted that the deceased had
secured just ordinary marks in seven
subjects and he had to re-appear in papers
1002 (Mathematical-I), 1006 (Foundation
of Computer & Programming) and 1008
(Basics of Mechanical Engineering).

Similarly, in the Second Semester the
deceased was absent in one of the 12
papers and out of 11 subjects for which he
had taken examination, he was to re-

appear in four subjects. Thus, it will be
difficult to say that the deceased was a
brilliant student or that he was pursuing
engineering from a well known or even
mediocre college.

"7. As far as addition towards future
prospects is concerned, the issue has been
examined at great length by this Court in
HDFC ERGO General Insurance Co. Ltd.
v. Smt. Lalta Devi & Ors. (supra). Paras 9

Page No.69 of 313
to 21 of the report in Lalta Devi are
extracted hereunder:-

9. The learned counsel for the Claimants
has referred to a three Judge Bench deci-
sion of the Supreme Court in Rajesh & Ors.

v. Rajbir Singh & Ors., (2013) 9 SCC 54 to
contend that the future prospects have to
be added in all cases where a person is get-
ting fixed wages or is a seasonal employee
or is a student.

10. It is urged by the learned counsel for
the Claimants that the law laid down in
Sarla Verma (Smt.) & Ors. v. Delhi Trans-

port Corporation & Anr., (2009) 6 SCC 121
was extended in Rajesh & Ors. v. Rajbir
Singh & Ors., (2013) 9 SCC 54 to hold that
future prospects ought to be extended in
all cases.

11. On the other hand, the learned counsel
for the Insurance Company refers to a three
Judge Bench decision of the Supreme Court
in Reshma Kumari & Ors. v. Madan Mohan
& Anr., (2013) 9 SCC 65 wherein while ap-

proving the ratio with regard to future
prospects in Sarla Verma (Smt.) & Ors.

(supra) and relying on General Manager,
Kerala State Road Transport Corporation,
Trivandrum v. Susamma Thomas (Mrs.)
and Ors. (1994) 2 SCC 176; Sarla Dixit v.

Balwant Yadav, (1996) 3 SCC 179 and
Abati Bezbaruah v. Dy. Director General,
Geological Survey of India & Anr. , 2003
(3) SCC 148, the Supreme Court held as
under:-

ala SRTC v. Susamma Thomas ,
(1994) 2 SCC 176 : 1994 SCC
(Cri) 335], Sarla Dixit [(1996) 3
SCC 179] and Abati Bezbaruah
[Abati Bezbaruah v. Geological
Survey of India , (2003) 3 SCC 148
: 2003 SCC (Cri) 746] and in
para 24 of the Report held as un-
der: ( Sarla Verma case [Sarla
Verma v. DTC, (2009) 6 SCC
121 : (2009) 2 SCC (Civ) 770 :

(2009) 2 SCC (Cri) 1002] , SCC
p. 134):

"24. ... In view of the imponder-
ables and uncertainties, we are in
favour of adopting as a rule of
thumb, an addition of 50% of actual
salary to the actual salary income of
the deceased towards future
prospects, where the deceased had a
permanent job and was below 40
years. (Where the annual income is
in the taxable range, the words „ac-
tual salary‟ should be read as „ac -
tual salary less tax‟). The addition
should be only 30% if the age of the
deceased was 40 to 50 years. There
should be no addition, where the
age of the deceased is more than 50
years. Though the evidence may in-
dicate a different percentage of
increase, it is necessary to standard-
ise the addition to avoid different
yardsticks being applied or different
methods of calculation being
adopted. Where the deceased was
self-employed or was on a fixed
salary (without provision for annual
increments, etc.), the courts will
usually take only the actual income
at the time of death. A departure
therefrom should be made only in
rare and exceptional cases involv-
ing special circumstances."

Page No.71 of 313
39. The standardization of addition
to income for future prospects shall
help in achieving certainty in arriv-

ing at appropriate compensation.

We approve the method that an ad-

dition of 50% of actual salary be
made to the actual salary income of
the deceased towards future
prospects where the deceased had a
permanent job and was below 40
years and the addition should be
only 30% if the age of the deceased
was 40 to 50 years and no addition
should be made where the age of
the deceased is more than 50 years.

Where the annual income is in the
taxable range, the actual salary
shall mean actual salary less tax. In
the cases where the deceased was
self-employed or was on a fixed
salary without provision for annual
increments, the actual income at the
time of death without any addition
to income for future prospects will
be appropriate. A departure from
the above principle can only be jus-

tified in extraordinary circum-

stances and very exceptional
cases."

12. The learned counsel for the Insurance
Company relies upon a Constitutional Bench
judgment of the Supreme Court in Central
Board of Dawoodi Bohra Community & Anr.

v. State of Maharashtra & Anr., (2005) 2
SCC 673; Safiya Bee v. Mohd. Vajahath
Hussain @ Fasi , (2011) 2 SCC 94; and
Union of India & Ors. v. S.K. Kapoor , (2011)
4 SCC 589 to contend that in case of diver-

gence of opinion in judgments of benches of
co-equal strength, earlier judgment will be
taken as a binding precedent.

13. It may be noted that in Reshma Kumari
& Ors. v. Madan Mohan & Anr. , (2013) 9
SCC 65; the three Judge Bench was dealing
with a reference made by a two Judge Bench

Page No.72 of 313
(S.B. Sinha and Cyriac Joseph, J.J.). The
two Hon'ble Judges wanted an authoritative
pronouncement from a Larger Bench on the
question of applicability of the multiplier
and whether the inflation was built in the
multiplier. The three Judge Bench approved
the two Judge Bench decision of the
Supreme Court in Sarla Verma (Smt.) & Ors.
v. Delhi Transport Corporation & Anr. ,
(2009) 6 SCC 121 with regard to the selec-

tion of multiplier. It further laid down that
addition towards future prospects to the ex-
tent of 50% of the actual salary shall be
made towards future prospects when the de-
ceased had a permanent job and was below
40 years and addition of 30% should be
made if the age of the deceased was between
40-50 years. No addition towards future
prospects shall be made where the deceased
was self-employed or was getting a fixed
salary without any provision of annual in-
crement.

14. Of course, three Judge Bench of the
Supreme Court in its later judgment in Ra-
jesh relying on Santosh Devi v. National In-
surance Company Ltd. & Ors., 2012 (6)
SCC 421 observed that there would be addi-
tion of 30% and 50%, depending upon the
age of the deceased, towards future
prospects even in the case of self-employed
persons. It may, however, be noted that in
Rajesh, the three Judge Bench decision in
Reshma Kumari (supra) was not brought
to the notice of their Lordships.

15. The divergence of opinion was noted by
another three Judge Bench of the Supreme
Court in Sanjay Verma v. Haryana Road-

ways, (2014) 3 SCC 210. In paras 14 and
15, the Supreme Court observed as under:-

"14. Certain parallel developments will now
have to be taken note of. In Reshma Kumari
v. Madan Mohan [(2009) 13 SCC 422 :
(2009) 5 SCC (Civ) 143 : (2010) 1 SCC
(Cri) 1044], a two-Judge Bench of this

Page No.73 of 313
Court while considering the following ques-
tions took the view that the issue(s) needed
resolution by a larger Bench: (SCC p. 425,
para 10)

"(1) Whether the multiplier speci-

fied in the Second Schedule ap-

pended to the Act should be scrupu-

lously applied in all the cases?

(2) Whether for determination of the
multiplicand, the Act provides for
any criterion, particularly as re-

gards determination of future
prospects?"

15. Answering the above reference a
three- Judge Bench of this Court in
Reshma Kumari v. Madan Mohan
[(2013) 9 SCC 65 : (2013) 4 SCC (Civ)
191 : (2013) 3 SCC (Cri) 826] (SCC p.

88, para 36) reiterated the view taken
in Sarla Verma [Sarla Verma v. DTC,
(2009) 6 SCC 121 : (2009) 2 SCC (Civ)
770 : (2009) 2 SCC (Cri) 1002] to the
effect that in respect of a person who
was on a fixed salary without provision
for annual increments or who was self-

employed the actual income at the time
of death should be taken into account
for determining the loss of income un-
less there are extraordinary and excep-

tional circumstances. Though the ex-

pression "exceptional and extraordi-

nary circumstances" is not capable of
any precise definition, in Shakti Devi v.
New India Insurance Co. Ltd. [(2010)
14 SCC 575 : (2012) 1 SCC (Civ) 766 :

(2011) 3 SCC (Cri) 848] there is a
practical application of the aforesaid
principle. The near certainty of the reg-
ular employment of the deceased in a
government department following the
retirement of his father was held to be a
valid ground to compute the loss of in-

come by taking into account the possi-

ble future earnings. The said loss of in-

Page No.74 of 313
come, accordingly, was quantified at
double the amount that the deceased
was earning at the time of his death."

16. Further, the divergence of opinion in
Reshma Kumari & Ors. v. Madan Mohan &
Anr., (2013) 9 SCC 65 and Rajesh & Ors. v.

Rajbir Singh & Ors., (2013) 9 SCC 54 was
noticed by the Supreme Court in another lat-
est judgment in National Insurance Com-

pany Ltd. v. Pushpa & Ors., CC
No.8058/2014, decided on 02.07.2014 and
in concluding paragraph while making
reference to the Larger Bench, the Supreme
Court held as under:-

"Be it noted, though the decision in
Reshma (supra) was rendered at earlier
point of time, as is clear, the same has
not been noticed in Rajesh (supra) and
that is why divergent opinions have been
expressed. We are of the considered
opinion that as regards the manner of
addition of income of future prospects
there should be an authoritative pro-
nouncement. Therefore, we think it
appropriate to refer the matter to a
larger Bench."

17. Now, the question is which of the judg-
ments ought to be followed awaiting answer
to the reference made by the Supreme Court
in Pushpa & Ors. (supra).

18. In Central Board of Dawoodi Bohra
Community & Anr. v. State of Maharashtra
& Anr. , (2005) 2 SCC 673 in para 12, the
Supreme Court observed as under:-

"12. Having carefully considered the
submissions made by the learned Se-
nior Counsel for the parties and hav-
ing examined the law laid down by the
Constitution Benches in the abovesaid
decisions, we would like to sum up the
legal position in the following terms:

Page No.75 of 313
(1) The law laid down by this Court in
a decision delivered by a Bench of
larger strength is binding on any sub-
sequent Bench of lesser or coequal
strength.

(2) [Ed.: Para 12(2) corrected vide Official
Corrigendum No. F.3/Ed.B.J./21/2005 dated
3- 3-2005.] A Bench of lesser quorum can-

not disagree or dissent from the view of the
law taken by a Bench of larger quorum. In
case of doubt all that the Bench of lesser
quorum can do is to invite the attention of
the Chief Justice and request for the matter
being placed for hearing before a Bench of
larger quorum than the Bench whose deci-

sion has come up for consideration. It will
be open only for a Bench of coequal strength
to express an opinion doubting the correct-
ness of the view taken by the earlier Bench
of coequal strength, whereupon the matter
may be placed for hearing before a Bench
consisting of a quorum larger than the one
which pronounced the decision laying down
the law the correctness of which is doubted.

(3) [Ed.: Para 12(3) corrected vide Official
Corrigendum No. F.3/Ed.B.J./7/2005 dated
17- 1-2005.] The above rules are subject to
two exceptions: (i) the abovesaid rules do
not bind the discretion of the Chief Justice in
whom vests the power of framing the roster
and who can direct any particular matter to
be placed for hearing before any particular
Bench of any strength; and (ii) in spite of the
rules laid down hereinabove, if the matter
has already come up for hearing before a
Bench of larger quorum and that Bench it-

self feels that the view of the law taken by a
Bench of lesser quorum, which view is in
doubt, needs correction or reconsideration
then by way of exception (and not as a rule)
and for reasons given by it, it may proceed
to hear the case and examine the correctness
of the previous decision in question dispens-
ing with the need of a specific reference or
the order of the Chief Justice constituting

Page No.76 of 313
the Bench and such listing. Such was the sit-
uation in Raghubir Singh [(1989) 2 SCC
754] and Hansoli Devi [(2002) 7 SCC
273]."

19. Similarly, in Safiya Bee v. Mohd. Vaja-
hath Hussain @ Fasi, (2011) 2 SCC 94 in
para 27, the Supreme Court observed as un-
der:-

"27. However, even assuming that the
decision in WP No. 35561 of 1998 did
not operate as res judicata, we are to
observe that even if the learned
Judges who decided WP No. 304 of
2001 did not agree with the view
taken by a coordinate Bench of equal
strength in the earlier WP No. 35561
of 1998 regarding the interpretation
of Section 2(c) of the Act and its ap-
plication to the petition schedule
property, judicial discipline and prac-
tice required them to refer the issue to
a larger Bench. The learned Judges
were not right in overruling the state-
ment of the law by a coordinate
Bench of equal strength. It is an ac-
cepted rule or principle that the state-
ment of the law by a Bench is
considered binding on a Bench of the
same or lesser number of Judges. In
case of doubt or disagreement about
the decision of the earlier Bench, the
well-accepted and desirable practice
is that the later Bench would refer the
case to a larger Bench."

20. In Union of India & Ors. v. S.K. Kapoor ,
(2011) 4 SCC 589 while holding that the de-
cision of the Co- ordinate Bench is binding
on the subsequent Bench of equal
strength, held that the Bench of Co-ordinate
strength can only make a reference to a
larger Bench. In para 9 of the report, the
Supreme Court held as under:-

Page No.77 of 313
"9. It may be noted that the decision
in S.N. Narula case [(2011) 4 SCC
591] was prior to the decision in T.V.
Patel case [(2007) 4 SCC 785 :
(2007) 2 SCC (L&S) 98] . It is well
settled that if a subsequent coordinate
Bench of equal strength wants to take
a different view, it can only refer the
matter to a larger Bench, otherwise
the prior decision of a coordinate
Bench is binding on the subsequent
Bench of equal strength. Since, the de-
cision in S.N. Narula case [(2011) 4
SCC 591] was not noticed in T.V. Pa-

tel case [(2007) 4 SCC 785 : (2007) 2
SCC (L&S) 98] , the latter decision is
a judgment per incuriam. The deci-

sion in S.N. Narula case [(2011) 4
SCC 591] was binding on the subse-

quent Bench of equal strength and
hence, it could not take a contrary
view, as is settled by a series of judg-

ments of this Court."

This Court in New India Assurance Co. Ltd.
v. Harpal Singh & Ors., MAC
APP.138/2011, decided on 06.09.2013, went
into this question and held that in view of the
report in S.K. Kapoor (supra), the three
Judge Bench decision in Reshma Kumari &
Ors. (supra) shall be taken as a binding
precedent."

21.In the instant case, the deceased's actual or potential income is taken
as Rs.20,000/- per month. Even if it is taken that the deceased was
working with 'Dainik Janwani Samachar Patra', there was no evidence
with regard to his good future prospects or that the deceased was in
permanent employment.

22.Thus, in absence of any evidence of good future prospects, no
addition towards future prospects ought to have been made by the
Claims Tribunal."

38. The observations in MAC Appeal No.544/07 decided
on 06.05.2016 by Hon'ble Mr.Justice R.K.Gauba in ICICI
Page No.78 of 313
Lombard General Insurance Company Ltd. vs. Smt. Nagina
Begum & Anr. on the point of addition of future prospects may
also be referred.

5. Against the above backdrop, by judgment dated
22.01.2016 passed in MAC Appeal No.956/2012 ( Sunil
Kumar vs. Pyar Mohd. ), this Court has found it proper
to follow the view taken earlier by a learned single
judge in MAC Appeal No.189/2014 ( HDFC Ergo
General Insurance Co. Ltd. vs. Smt. Lalta Devi & Ors. )
decided on 12.01.2015, presently taking the decision in
Reshma Kumari (Supra) as the binding precedent, till
such time the law on the subject of future prospects for
those who are "self-employed" or engaged in gainful
employment at a "fixed salary" is clarified by a larger
bench of the Supreme Court".

I am of the considered view that in view of
aforesaid legal position as discussed by the Hon'ble High
Court and in absence of any evidence with regard to good
future prospects or permanent employment of deceased in
the instant case, addition of income towards future prospects
cannot be made for the purpose of compensation.

(b) Deduction towards personal and living expenses of
the deceased:

Page No.79 of 313
As per Sarla Verma (Smt.) & Ors. vs. Delhi
Transport Corporation & Anr. (2009) 6 SCC 121, the
deduction towards personal and living expenses of the deceased
should be one-third (1/3rd) where the number of dependent
family members is 2 to 3, 1/4th where the number of dependent
family members is 4 to 6 and 1/5 th where the number of
dependent family member exceeds 6.
Since the deceased is survived by husband, minor son
and her mother, the deduction towards personal and living
expenses of the deceased shall be 1/3rd as held in Sarla Verma's
case (supra).

(c) Selection of multiplier:
As per High School certificate (Ex.PW1/5), the date
of birth of deceased is 03.10.1972. Accordingly, the deceased
was aged about 34 years 8 months on the date of accident. As
held in Sarla Verma (Smt.) & Ors. vs. Delhi Transport
Corporation & Anr. (2009) 6 SCC 121, the multiplier of 16 is
to be adopted for the purpose of assessment of
compensation.

(d) Loss of financial dependency
In the facts and circumstances, loss of financial
dependency of the petitioners comes to Rs.9,68,640/- [i.e.
Rs.90,810/-per annum (income of the deceased per annum) X
16 (multiplier) X 2/3 (dependency)].

Page No.80 of 313
39. Compensation under non-pecuniary heads:
Though a wide discretion in determination of
compensation is given but the amplitude of such powers has to
be exercised in consonance with settled principles and it needs
to be borne in mind that compensation is neither expected to be
windfall or bonanza or source of profit but at the same time
should not be pittance.
There cannot be any discrimination in
compensation under the non-pecuniary heads in case of
death of wife or husband relating to the heads of loss of
consortium, loss of love and affection and funeral expenses.
It has been held by the Hon'ble Apex Court in Rajesh & Ors. v.
Rajbir Singh & Ors., (2013) 9 SCC 54 that the compensation is
to be awarded for a sum of Rs.1 lakh each towards loss of love
and affection and loss of consortium, Rs.25,000/- towards
funeral expenses and Rs.10,000/- towards loss of estate.
Reference may also be made to MAC Appeal No.1036/12
HDFC Ergo General Insurance Company Ltd. vs. Bablu
Sahani decided by Hon'ble Mr. Justice G.P.Mittal 03.03.2015,
wherein the aforesaid amount was awarded towards
compensation in case of death of a homemaker.
Further, interest @ 9% per annum was awarded on
the award amount by the Hon'ble Apex Court in Municipal
Corporation of Delhi v. Association of Victims of Uphaar
Tragedy , 2012 ACJ 48 (SC).
Considering the facts and circumstances petitioner
no. 1 is entitled to Rs.1 lakh towards loss of consortium.
Petitioners are further entitled Rs.1 lakh towards loss of love and

Page No.81 of 313
affection, Rs.25,000/- are awarded towards funeral expenses and
Rs.10,000/- towards loss of estate, .

40. The petitioners/claimants are accordingly entitled
to compensation computed as under:
Loss of financial dependency Rs.9,68,640/-
Loss of Love and affection Rs.1,00,000/-
Loss of consortium to petitioner no.1 Rs.1,00,000/-
Funeral Expenses Rs.25,000/-
Loss of Estate Rs.10,000/-
________________
Total Rs.12,03,640/-
________________
(Rupees Twelve Lacs Three Thousand Six Hundred & Forty Only)

The claimants/petitioners are also entitled to interest
@ 9% p.a. from the date of filing of petition i.e. w.e.f.
13.07.2007 till realization.

41. For purpose of disbursement, petitioner no.1
Rajeev @ Rajeev Malhotra (husband of deceased) shall be
entitled to 50%, petitioner no. 2 Master Jai Malhotra (minor son
of deceased) & petitioner no.3 Smt. Sapna (mother of deceased)
shall be entitled to 25% each of the award amount along with
proportionate up-to-date interest.
On realization, out of the share of petitioner no.1,
Rs.50,000/- (Rupees Fifty Thousand Only) shall be released to
petitioner no.1 and remaining amount shall be kept in seven
fixed deposits of equal amount in his name with a nationalized
bank for a period of one year, two years, three years, four years,
five years, six years and seven years respectively without the

Page No.82 of 313
facility of advance, loan or premature withdrawal with release of
quarterly periodical interest in his account.

The share of petitioner no.2 Master Jai Malhotra
(minor son of deceased) shall be put in fixed deposit in his name
with a nationalized bank till he attains the age of 21 years
without the facility of advance, loan or premature withdrawal
with release of quarterly periodical interest in the account of
petitioner No.1 Rajeev @ Rajeev Malhotra (father) for the
benefit of minor.

Out of the share of petitioner no.3 Smt. Sapna (mother of
deceased), Rs.50,000/- (Rupees Fifty Thousand Only) shall be released to
petitioner no.3 and remaining amount shall be kept in five fixed deposits
of equal amount in her name with a nationalized bank for a period of one
year, two years, three years, four years and five years respectively without
the facility of advance, loan or premature withdrawal with release of
quarterly periodical interest in her account.

***************************

42. CASE-F

Suit No.306/11
Unique Case ID No.02401C-1059072008

Rajeev Malhotra, guardian/father of
Master Jai Malhotra
Versus
Raj Singh @ Nasir Ali & Ors.

In brief, Master Jai Malhotra, aged about 03 years
along with his mother (Smt. Goldy Malhotra) and other

Page No.83 of 313
passengers had boarded bus no.DL 1 PC 7676 for pilgrimage on
17.06.2007 and sustained injuries in the accident on 20.06.2007.
Mother of Master Jai Malhotra also suffered fatal injuries in the
accident.

43. On the pleadings of the parties, following issues were
framed for consideration vide order dated 06.08.2008 by ld.
Predecessor :-

(i) Whether the petitioner sustained injuries on
account of rash and negligent driving of DL 1
PC 7676 on 20.06.2007 at Bamukan Kantchi
mor, Dharamshala, HP by Respondent No.1?

(ii) Whether the petitioner is entitled for any
compensation, if so, to what amount and from
whom?

(iii) Relief.

44. In support of the claim petition, Rajeev @ Rajeev
Malhotra, father/guardian of minor petitioner Jai Malhotra was
examined as PW1.

PW1 Rajeev @ Rajeev Malhotra testified on the
lines of claim petition that Master Jai Malhotra along with his
mother and relative were travelling as passengers in bus no.DL 1
PC 7676. Further Master Jai Malhotra aged about 03 years
suffered grievous injuries along with fracture of right femur/leg

Page No.84 of 313
and shoulder (fracture clavicle). It was further claimed that
expenses of about Rs.30,000/- was incurred at Medical College,
Kangra and Dr.P.L. Arora Clinic, Delhi. He further proved
photocopy of his Voter's I-card (Ex.PW1/1), photocopy of birth
certificate of his son Jai Malhotra (Ex.PW1/2), attested copy of
MLC and prescription slip (Ex.PW1/3-collectively).

On cross-examination he clarified that he was not
an eyewitness to the accident. Further he had not brought any
document to show that he had incurred Rs.30,000/- on medical
treatment and Rs.25,000/- on conveyance, special diet and
attendant charges as mentioned in the affidavit. He further
stated that he had no document to show that his son had been
advised medical rest for a period of four months.

45. Issue No. (ii)
Whether the petitioner is entitled for any
compensation, if so, to what amount and
from whom?

Counsel for the petitioner admits that no medical
bills have been filed relating to the treatment. The injuries
sustained by the petitioner have been described in the MLC
Ex.PW1/3 as follows:

"scalp lacerated injury-3 cm in size, (?) fracture

Page No.85 of 313
right femur-advised X-ray. Admit Ortho ward. It was further
observed that final opinion would be given after orthopaedic
record".
It may be observed that the petitioner further annexed
a photocopy of prescription of Dr.P.L.Arora dated 22.06.2007,
wherein some treatment appears to be reflected for fracture
Clavicle along with prescription of medicines. However, no X-
Ray or any other conclusive document has been filed on record
to conclusively hold if the petitioner had suffered fracture in the
accident.

Considering the nature of injuries including the
treatment for suspected fracture clavicle as per photocopy of
prescription slip dated 22.06.2007 and the trauma suffered in the
accident petitioner is awarded a sum of Rs.40,000/- towards
pain and suffering and medical treatment. Also, a sum of
Rs.5,000/- is awarded towards diet, and conveyance. No
separate medical bills reflecting any cost of treatment/medicines
have been filed.

46. As discussed above, the overall compensation is
tabulated as under:

Pain and suffering Rs.40,000/-
Diet & conveyance Rs.5,000/-
Medical Bills -NIL-
___________
Total Rs.45,000/-
________________
(Rupees Forty Five Thousand Only)

The claimant/petitioner is also entitled to interest @

Page No.86 of 313
9% p.a. from the date of filing of claim petition i.e. w.e.f.
20.07.2007 till realization.

Since the injured is a minor, entire compensation
amount along with up-to-date interest shall be kept in a fixed
deposited in the name of injured Jai Malhotra with a
nationalized bank upto the period till he attains the age of
majority without the facility of loan, advance or premature
withdrawal with release of periodical interest in the account of
his father Shri Rajeev Malhotra for benefit of minor.

**************************

47. CASE-G

Suit No.310/11
Unique Case ID No.02401C-1059172008

Ms. Sunita Rao @ Jyoti Rao
Versus
Raj Singh @ Nasir Ali & Ors.

In brief, petitioner Sunita Rao (aged about 24 years)
had boarded bus no.DL 1 PC 7676 for pilgrimage on 17.06.2007
and sustained grievous injuries in the accident on 20.06.2007. It
is further the case of the petitioner that she was self employed
and earning Rs.5,000/- per month.

48. On pleadings of the parties, following issues were
framed for consideration vide order dated 06.08.2008 by ld.
Predecessor :-

(i) Whether the petitioner sustained injuries on

Page No.87 of 313
account of rash and negligent driving of vehicle
no.DL 1 PC 7676 on 20.06.2007 at Bamukan
Kantchi Mor, Dharamshala, HP by Respondent
No.1?

(ii) Whether the petitioner is entitled for any
compensation, if so, to what amount and from
whom?

(iii) Relief.

49. In support of the claim, petitioner was examined as
PW1.

PW1 Sunita Rao @ Jyoti Rao @ Sunaina Rao
testified on the lines of claim petition that she was one of the
passengers in Bus No.DL 1 PC 7676 on pilgrimage along with
her friends. The driver of the bus was driving at speed in the
hilly area despite repeated requests of the passengers to drive
slowly & cautiously and while taking a turn the bus hit the
parapet wall. The driver jumped out of the bus leaving the
passengers on mercy of God and the bus fell in the valley. PW1
further testified that she sustained cut on left knee and abrasion
on right knee as depicted in MLC and proved copy of her Ration
Card (Ex.PW1/1), attested copy of MLC (Ex.PW1/2), copy of
her Graduation Degree (Ex.PW1/3).

On cross-examination, she clarified that the she was
awake at the time of the accident and had noticed that the driver
was not driving the vehicle properly. Further she was sitting on

Page No.88 of 313
the second seat from the driver seat. She further deposed that as
per her estimate there were 30-35 passengers in the bus at the
time of accident including minor children.

50. Issue No. (ii)
Whether the petitioner is entitled for any
compensation, if so, to what amount and
from whom?

Counsel for the petitioner admits that no medical
bills have been filed relating to the treatment. The injuries
sustained by the petitioner have been described in the MLC
Ex.PW1/2 as follows:

"cut injury on the left knee -1 cm in size and
abrasion on right knee 1X2 cm in size".
It was further observed in the MLC therein that final
opinion would be given after surgical case summary. Further as
per the MLC the patient was discharged on the same day.

Page No.89 of 313
by her in the accident. Also, a sum of Rs.5,000/- is awarded
towards diet, and conveyance.

51. As discussed above, the overall compensation is
tabulated as under:

Loss of wages -NIL-
Pain and suffering Rs.15,000/-
Diet & conveyance Rs.5,000/-
Medical Bills -NIL-
___________
Total Rs.20,000/-
________________
(Rupees Twenty Thousand Only)

The claimant/petitioner is also entitled to interest @
9% p.a. from the date of filing of claim petition i.e. w.e.f.
20.07.2007 till realization.

52. On realization, entire compensation amount along
with up-to-date interest shall be released to the petitioner.

***************************

53. CASE-H

Suit No.390/11
Unique Case ID No.02401C-1058872008

Smt. Anju Mahajan
Versus
Raj Singh @ Nasir Ali & Ors.

As per the case of petitioner (Smt. Anju Mahajan),
she was travelling in bus bearing registration No.DL 1 PC 7676
with other passengers on a pilgrimage in Himachal Pradesh
Page No.90 of 313
since 17.06.2007 and suffered serious/grievous injuries in the
accident on 20.06.2007.

Petitioner was initially admitted at Dr. Rajender
Parsad Government Medical College Hospital, Tanda, District
Kangra, Himachal Pradesh after the accident and was
subsequently shifted to PGI, Chandigarh, Punjab on the same
day considering the grievous nature of injuries. She was further
transferred to Sir Ganga Ram Hospital, New Delhi on
23.06.2007 and remained admitted at Sir Ganga Ram Hospital,
New Delhi till 03.07.2007. Thereafter, petitioner was again
admitted at Sir Ganga Ram Hospital from 17.07.2007 to
28.07.2007.

It is further the case of petitioner that due to injuries
sustained in the accident, she is unable to move both lower
limbs. Further, there is no sensation below waist and loss of
bladder/bowel control. It is also claimed that petitioner suffered
permanent disability due to the injuries sustained in the accident.

It is also the case of the petitioner that prior to the
accident she was gainfully employed at Kamdhanu Enterprises,
M-7, DDA Market, Shakur Pur, Delhi and was earning
Rs.14,000/- per month at the time of accident. Further, due to
the injuries suffered in the accident, she had incurred a sum of
Rs.8,00,000/- on her treatment. Also, she has been unable to
take care of her child aged about 03 years and incurred
Rs.10,000/- till filing of petition for engaging a maid at salary of
Rs.5,000/- per month. Compensation is accordingly claimed for
sum of Rs.60,00,000/-.

Page No.91 of 313
54. On the pleadings of the parties, following issues
were framed for consideration vide order dated 06.08.2008 by
ld. Predecessor :-

(i) Whether the petitioner sustained injuries on
account of rash and negligent driving of DL 1 PC
7676 on 20.06.2007 at Bamukan Kantchi More,
Dharamshala, HP by Respondent no.1?

(ii) Whether the petitioner is entitled for
compensation, if so, how much and from whom?

(iii) Relief.

55. In support of the claim petition, seven witnesses were
examined on behalf of petitioner, namely PW1 Anju Mahajan;
PW2 Sh.Pyra Singh (Medical Record Officer), Sir Ganga Ram
Hospital; PW3 Dr. Kanti Kumar, Kuber Hospital, Pitampura,
Delhi; PW4 Sh. Rajbeer Singh, Medical Record Clerk, City
Hospital, New Delhi; PW5 Shri Rati Ram, Sr. Tax Assistant,
Income Tax Department; PW6 Dr.Himanshu Kataria, Professor
(Orthopaedics), Dr.R.M.L. Hospital and PW7 Dr.Ankush Garg,
Consultant (Orthopedics), City Hospital, Ganga Ram Hospital,
New Delhi.

It may be observed that ASI Mohinder Singh
examined as PW2 in connected case bearing Suit No.307/11-
Sapna Talwar Vs. Raj Singh to prove the record pertaining to the
criminal proceedings arising out of FIR No.125/07 is common to
all the claim petitions.

Page No.92 of 313
PW-1 Anju Mahajan testified on the lines of claim
petition and stated that on 20.06.2007 at about 10:00PM she
along with other passengers was travelling in bus bearing
registration No.DL 1 PC 7676 for a pilgrimage tour in Himachal
Pradesh. They were on the way to Katra Mata Vaishno Devi
Shrine from Dharamshala (Kangra) H.P. and had reached at
Kantchi More. At the aforesaid time, the driver of the
bus/Respondent No.1 was driving the bus at a high speed in a
rash and negligent manner and as a result thereof, driver lost
control over the bus and fell in the valley. Petitioner suffered
grievous injuries and was rushed to Dr.Rajender Prasad
Government Medical College Hospital, Tanda, District Kangra,
H.P. where her MLC was prepared. Thereafter, she was shifted
to PGI, Chandigarh, Punjab and later on shifted to Sir Ganga
Ram Hospital, New Delhi for further treatment on 23.06.2007,
where she remained admitted from 23.06.2007 to 03.07.2007.
She further relied upon documents Ex.PW1/1 to Ex.PW1/10
filed along with the affidavit i.e. Medical bills (Ex.PW1/1),
prescriptions and treatment record of various hospitals
(Ex.PW1/2), Voter's I-card of petitioner (Ex.PW1/3), PAN Card
of petitioner (Ex.PW1/4), Income tax returns of petitioner for
the assessment years 2002-03, 2003-04, 2004-05, 2005-06,
2006-07 2007-08 (Ex.PW1/5-collectively), disability certificate
of the petitioner (Ex.PW1/6), bills of payment to maid servants
(Ex.PW1/7), Educational/professional qualification papers
(Ex.PW1/8), attested copy of MLC (Ex.PW1/9),
certified/attested copy of FIR No.125/07 dated 21.06.2007, PS:

Page No.93 of 313
Dharamshala, Himachal Pradesh (Ex.PW1/10).
She further testified that the medical board assessed
the permanent disability at 90% qua both lower and upper limb.
Further, she has not been able to live a normal life after the
accident. She further testified that prior to the accident she was
earning Rs.14,000/- p.m. being employed at Kamdhanu
Enterprises, M-70, DDA Market, Shakarpur, Delhi and was
filing the income tax returns. She further testified that a maid
servant was hired at Rs.3,000/- per month for the household
services and another @ Rs.3,500/- per month to look after the
petitioner.
On cross-examination, she deposed that they left
Delhi on 17.06.2007 and till 20.06.2007 the journey was
comfortable. She was sitting on the right side of the bus on the
sixth seat. At the time of the accident the driver was driving at
a high speed and was requested to drive slowly. There were
about 30-35 passengers in the bus and on 19.06.2007 on the way
a few passengers deboarded the bus for their houses and gave up
further journey.
She further deposed that she took employment at
Kamdhenu Enterprises and her husband was the proprietor of
the firm in partnership with one Sh.Sushil Sharma. The said
firm was being run by her husband before her marriage and had
been issued an appointment letter. She denied the suggestion
that her husband in order to book the expenses had shown her as
an employee. She further clarified that her husband and Sushil
Sharma were running the said enterprise in partnership. She
admitted that in her affidavit she had not mentioned the name of

Page No.94 of 313
the attendant and the dates for which attendant charges were
paid. However, it was denied that the vouchers filed in this
regard were false or fabricated for purpose of compensation.
She further denied the suggestion that no loss of income had
been suffered by her and that she could still work and earn.

PW-2 Pyra Singh, Medical Record Officer, Sir
Ganga Ram Hospital, Delhi proved the original treatment
record along with discharge summary and final bill for the
period 21.07.2007 to 28.07.2007 (Ex.PW2/1).

PW-3 Dr.Kanti Kumar, Kuber Hospital, Delhi
proved the discharge summary, entire treatment record and final
bill for the period 28.07.2007 to 21.08.2007 in respect of Anju
Mahajan (Ex.PW3/1-collectively).
On cross-examination, he clarified that besides
being under his treatment the petitioner was mainly under the
treatment of Dr.Shankar Acharya and never visited their hospital
for check-up after her discharge from the hospital.

PW-4 Rajbeer Singh, Medical Record Clerk, City
Hospital, Karol Bagh, Delhi proved the discharge summary,
treatment record and final bill for the period 23.06.2007 to
02.07.2007 (Ex.PW4/1) and from 17.07.2007 to 21.07.2007
(Ex.PW4/2).

PW-5 Sh.Rati Ram, Sr. Tax Assistant, Income Tax
Department proved the income tax return filed by petitioner

Page No.95 of 313
Anju Mahajan for the assessment year 2007-08 (Ex.PW5/1).
He also proved the income tax returns for the assessment years
2002-03, 2003-04, 2004-05, 2005-06 and 2006-07 (Ex.PW1/5-
collectively).

PW-6 Dr.Himanshu Kataria, Professor
(Orthopedics), Dr.R.M.L. Hospital, New Delhi proved the
disability certificate (Ex.PW1/6) and stated that the case is of
fracture dorsolumbar spine with paraplegia with bladder/bowel
involvement. He further stated that the petitioner suffered
permanent disability to the tune of 90% in relation to whole
body.

On cross-examination, PW6 clarified that he had
examined the patient only at the time of assessing the disability.
Further both her upper limbs are functioning and she could use
the same. He further stated that it was noticed by Occupational
Department while assessing her functional disability that
petitioner requires mild assistance on shifting from bed to wheel
chair and similarly on sitting to lying down. He also clarified
that the patient has non-functional power in both her lower limbs
with bladder and bowel involvement.

PW-7 Dr. Ankush Garg, Consultant
(Orthopedics), City Hospital stated that petitioner was
admitted at Sir Ganga Ram Hospital from 21.07.2007 to
28.07.2007 with operated case of fracture D 12 vertebra with
paraplegia and discharging pus from operated side. He further
stated that petitioner was operated on 25.06.2007 and D9 to L2

Page No.96 of 313
fixation and decompression was done. Further, petitioner was
admitted at City Hospital, Pusa Road, New Delhi on 17.07.2007
and wound debridement was done on the same day and
transferred to Sir Ganga Ram Hospital on 21.07.2007. He
further stated that petitioner cannot move without assistance and
needs the attendant to move but would be able to do all the desk
work while sitting.

During cross examination he clarified that the
petitioner can use her both upper limb.

It may also be mentioned that PW-2 ASI Mohinder
Singh (examined in Suit No.307/11 Sapna Talwar v. Raj Singh
& Ors. relevant in all the cases) proved the chargesheet, MLCs,
postmortem reports, DL, RC, Insurance and other summoned
record pertaining to FIR No.125/07, PS: Dharamshala, Distt.
Kangra, H.P. (Ex.PW2/1-collectively 157 pages).

56. Issue No. (ii)
Whether the petitioner is entitled to any
compensation, if so, to what amount and
from whom?

In Raj Kumar v. Ajay Kumar & Anr. , 2011 Volume
1, ACJ 1, Hon'ble Supreme Court of India observed that the
object of awarding damages is to make good the loss suffered as
a result of the wrong done as far as money can do in a fair,
reasonable and equitable manner. Paras 4 and 5 of the judgment
are further extracted below as the same explains the various

Page No.97 of 313
heads under which the compensation is to be assessed:-

"4. The provision of the Motor Vehicles Act, 1988 ('the Act'
for short) makes it clear that the award must be just, which
means that compensation should, to the extent possible,
fully and adequately restore the claimant to the position
prior to the accident. The object of awarding damages is to
make good the loss suffered as a result of wrong done as far
as money can do so, in a fair, reasonable and equitable
manner. The court or tribunal shall have to assess the
damages objectively and exclude from consideration any
speculation or fancy, though some conjecture with reference
to the nature of disability and its consequences, is
inevitable. A person is not only to be compensated for the
physical injury, but also for the loss which he suffered as a
result of such injury. This means that he is to be
compensated for his inability to lead a full life, his inability
to enjoy those normal amenities which he would have
enjoyed but for the injuries, and his inability to earn as
much as he used to earn or could have earned. [See C.K.
Subramonia Iyer v. T. Kunhikuttan Nair , AIR 1970 SC 376,
R.D. Hattangadi v. Pest Control (India) (P) Ltd. , 1995 (1)
SCC 551 and Baker v. Willoughby, 1970 AC 467.

5. The heads under which compensation is awarded in
personal injury cases are the following:

Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalisation,
medicines, transportation, nourishing food, and
miscellaneous expenditure.

(ii) Loss of earnings (and other gains) which the injured
would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment;

Page No.98 of 313
(b) Loss of future earnings on account of permanent
disability.

(iii) Future medical expenses.

Non-pecuniary damages (General damages)
(iv) Damages for pain, suffering and trauma as a
consequence of the injuries.

(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal
longevity).

In routine personal injury cases, compensation
will be awarded only under heads (i), (ii)(a) and (iv). It is only in
serious cases of injury, where there is specific medical evidence
corroborating the evidence of the claimant, that compensation
will be granted under any of the heads (ii)(b), (iii), (v) and (vi)
relating to loss of future earnings on account of permanent
disability, future medical expenses, loss of amenities (and/or loss

of prospects of marriage) and loss of expectation of life."

Now the important factors relevant for calculation of
compensation consequent to accidental injuries sustained by the
petitioner may be considered.

LOSS OF EARNING CAPACITY
For purpose of assessing the loss of earning capacity,
the income of the petitioner/injured needs to be assessed along
with the functional disability suffered by her due to the injuries
sustained in the accident.

(a) Criteria for taking income of the petitioner

Page No.99 of 313
Counsel for the petitioner contended that petitioner
was employed with Kamdhanu Enterprises and earning about
Rs.14,000/- per month and accordingly the income be assessed
after addition of 50% towards future prospects since the
petitioner was aged about 30 years at the time of accident.
Reliance was further placed upon Income Tax Returns filed by
the petitioner for the Assessment Year 2002-03, 2003-04, 2004-
05, 2005-06, 2006-07 and 2007-08.

On the other hand, the same was opposed by counsel
for respondents and it was submitted that the petitioner had been
booked to be an employee in the concern run by her husband for
obtaining the benefit under taxation laws and the ITRs cannot be
taken as true record of reflection of her income.

I have given considered thought to the contentions
raised. It may be noticed that PW1 during cross-examination
admitted that the said concern was run in partnership by her
husband along with one Sushil Sharma. However, petitioner did
not produce the appointment letter but volunteered that she was
managing the entire office and stated that she was an income tax
payee since 2000. The Income Tax Returns filed by the
petitioner reveal that apart from the salary the Returns reflect
additional income by way of "computer job work" and
interest income from Bank and Post Office. Further, the net
income of the petitioner for the relevant Assessment Years after
deduction of tax paid as 'NIL' and other income arising out of
interest is as under :

Page No.100 of 313
Assess Gross Salary Other Interest Net
ment Income (Rs.) Income Income Income
Year (Rs.) (Rs. (Rs.) (Rs.)
2002-03 72,000/- 72,000/- 15,000/- 4,200/- 67,800/-
2003-04 72,000/- 72,180/- 15,000/- 5,500/- 66,500/-
2004-05 68,500/- 72,000/- 15,000/- 5,500/- 63,000/-
2005-06 97,920/- 72,180/- 42,000/- 7,800/- 90,120/-
2006-07 1,21,980/- 72,180/- 42,000/- 7,800/- 1,14,180/-
2007-08 1,40,025/- 1,05,600/- 54,000/- 11,625/- 1,28,400/-

Admittedly, no documents have been filed by
petitioner to corroborate the payment of salary by way of
cheque, nor any appointment letter qua her appointment was
produced. Also, the other income generated by the petitioner by
computer job work has not been corroborated by filing of
receipts/vouchers. The Income Tax Returns for the post
accident period have not been filed on record. Neither the
husband of the petitioner entered the witness box to show the
documentary proof of the actual payment of salary to the
petitioner by way of cheque or otherwise. It may also be
noticed that the last Return for the Assessment Year 2007-08
was filed only on 07.12.2007 though the accident had taken
place on 20.06.2007 and only in aforesaid Return the salary has
suddenly increased from Rs.72,180/- to Rs.1,05,600/- while for
the remaining years it has remained almost static without any
increase. In the aforesaid background since the tax paid is NIL,
the possibility cannot be ruled out that the inflated Income Tax
Return for Assessment Year 2007-08 had been filed to book the
expenses in the business run by the husband of the petitioner
and cannot be considered. Considering the facts and
circumstances, I am inclined to take the income of the petitioner

Page No.101 of 313
for the purpose of assessment as average of net income for the
last three Assessment Years (i.e. 2004-05, 20052-06 & 2006-07)
excluding the Return for the last Assessment Year i.e. 2007-
08,which comes to Rs.89,100/- per annum.

(b) If addition in income towards future prospects is to
be made
Petitioner has claimed that addition towards future
prospects to the extent of 50% be made considering the fact that
petitioner was aged about 32 years (Date of Birth as per PAN
card 12.11.1974) but the same has been vehemently opposed by
counsel for Insurance Company.

The observations in MAC Appeal No.544/07 decided
on 06.05.2016 by Hon'ble Mr.Justice R.K.Gauba in ICICI
Lombard General Insurance Company Ltd. vs. Smt. Nagina
Begum & Anr. on the point of addition of future prospects may
be referred.

5. Against the above backdrop, by judgment dated
22.01.2016 passed in MAC Appeal No.956/2012 ( Sunil
Kumar vs. Pyar Mohd. ), this Court has found it proper

Page No.102 of 313
to follow the view taken earlier by a learned single
judge in MAC Appeal No.189/2014 ( HDFC Ergo
General Insurance Co. Ltd. vs. Smt. Lalta Devi & Ors. )
decided on 12.01.2015, presently taking the decision in
Reshma Kumari (Supra) as the binding precedent, till
such time the law on the subject of future prospects for
those who are "self-employed" or engaged in gainful
employment at a "fixed salary" is clarified by a larger
bench of the Supreme Court".

In view of the aforesaid legal position pointed out
by the Hon'ble High Court, since the petitioner was not in
permanent employment and has only been shown to be
employed in the business carried by her husband, addition of
income towards future prospects cannot be made for the
purpose of compensation.

(c) Functional Disability
Counsel for petitioner urged that for purpose of
assessment of compensation, disability may be considered at
100% in view of assessment made by the Medical Board as per
Disability Certificate dated 11.02.2016.

On the other hand, counsel for insurance company
contended that functional disability of the petitioner be assessed
at 45% considering the nature of disability qua the entire body.

It may be observed that in certain cases the
permanent disability may not impact the earning capacity of the
injured/victim and in such cases the victim may not be entitled
to compensation towards loss of capacity on account of
disability. However, in other cases even on account of less
permanent disability, an injured may be completely

Page No.103 of 313
incapacitated to carry out his vocation and as such the functional
disability may be more than the actual disability suffered by the
injured/victim. Hon'ble Supreme Court of India has elucidated
with an example that if the left hand of claimant, who is driver
by profession is amputated, the actual loss of earning capacity
may be virtually 100%.

The observations of the Hon'ble Supreme Court in
the case of Raj Kumar Vs. Ajay Kumar , (supra) whereby the
methodology for determining the functional disability as
discussed in paragraph 14 may be quoted:-

Page No.104 of 313
the loss of earning capacity will not be 100% as in the
case of a driver or carpenter, nor 60% which is the
actual physical disability, but far less. In fact, there
may not be any need to award any compensation under
the head of 'loss of future earnings', if the claimant
continues in government service, though he may be
awarded compensation under the head of loss of
amenities as a consequence of losing his hand.
Sometimes the injured claimant may be continued in
service, but may not found suitable for discharging the
duties attached to the post or job which he was earlier
holding, on account of his disability, and may therefore,
be shifted to some other suitable but lesser post with
lesser emoluments, in which case there should be a
limited award under the head of loss of future earning
capacity, taking note of the reduced earning capacity.
It may be noted that when compensation is awarded by
treating the loss of future earning capacity as 100% (or
even anything more than 50%), the need to award
compensation separately under the head of loss of
amenities or loss of expectation of life may disappear
and as a result, only a token or nominal amount may
have to be awarded under the head of loss of amenities
or loss of expectation of life, as otherwise there may be
a duplication in the award of compensation. Be that as
it may."

In the instant case, as per medical record available on
record, immediately after the accident petitioner was admitted at
Dr. Rajender Prasad Government Medical College Hospital,
Tanda, Kangra on 21.06.2007 and owing to her precarious
condition was taken to PGI, Chandigarh on 22.06.2007.
Thereafter, on 23.06.2007 she was shifted to City Hospital
(affiliated with Sir Ganga Ram Hospital, New Delhi) wherein
she remained admitted from 23.06.2007 to 03.07.2007 and again
from 17.07.2007 top 21.07.2007. On 21.07.2007 she was
transferred to Sir Ganga Ram Hospital, New Delhi wherein she
remained admitted from 21.07.2007 to 28.07.2007. Petitioner

Page No.105 of 313
further remained admitted at Kuber Hospital (A Unit of Dheeraj
Hospital Ltd)., Pitampura, Delhi from 28.07.2007 to 21.08.2007.
Consequent to accidental injuries, petitioner has suffered 90%
permanent physical impairment in relation to whole body and is
unable to even manage her daily routine work.

The petitioner has relied upon Disability Certificate
dated 19.12.2008 issued by Medical Board, Dr. Ram Manohar
Lohia Hospital, Mangolpuri, New Delhi whereby it has been
observed as under:

"......is a case of Post traumatic paraplegia (0/5 power)
dorsolumbar spine with bladder/bowel involvement. She is
physically disabled and has 90% (Ninety Percent) permanent
(physical impairment) in relation to her whole body........."

Statement of PW-7 Dr. Ankush Garg, Consultant
(Orthopedics), City Hospital may also be noticed who deposed
that petitioner was admitted at Sir Ganga Ram Hospital from
21.07.2007 to 28.07.2007 with operated case of fracture D 12
vertebra with paraplegia and discharging pus from operated side.
Further, she was operated on 25.06.2007 and D9 to L2 fixation
and decompression was done. He further clarified that patient
cannot move without assistance and needs the attendant to move
but would be able to do all the desk work while sitting.

PW-6 Dr.Himanshu Kataria, Professor
(Orthopedics), Dr. R.M.L. Hospital, New Delhi who proved
the disability certificate (Ex.PW1/6) stated that the case is of
fracture dorsolumbar spine with paraplegia with bladder/bowel
involvement and the petitioner suffered permanent disability to

Page No.106 of 313
the tune of 90% in relation to whole body.

In the facts and circumstances, considering the
principles laid down in Raj Kumar Vs. Ajay Kumar , (supra), I
hold that the petitioner suffered 100% functional disability
for purpose of assessment of compensation.

(d) As per copy of PAN Card (Ex.PW1/4), date of birth
of the petitioner is 12.11.1974. As such, the age of petitioner on
the date of accident was about 32 years 07 months 08 days
approximately. In view of Sarla Verma & Ors. v/s Delhi
Transport Corporation 2009, ACJ 1298, the relevant multiplier
of 16 is applicable for the purpose of assessment.

(e) The compensation is accordingly assessed towards loss of
income/earning capacity at Rs.14,25,600/- {i.e. Rs.89,100/-
(income per annum) X 100% (functional disability) X 16
(applicable multiplier according to age)}.

(f) Loss of amenities and loss of expectation of life
due to Permanent Disability
The amount of compensation towards amenities
should be to bring amenities and restoration of health to the
petitioner. In the facts and circumstances, considering the
functional disability of 100% in relation to whole body suffered
by the petitioner, she is awarded a sum of Rs.1,50,000/- (Rupees
One Lakh Fifty Thousand Only) on account of loss of amenities
and Rs.1,00,000/- (Rupees One Lakh Only) is awarded towards
loss of expectation of life due to permanent disability.

Page No.107 of 313
(g) Pain and Suffering & Mental Agony
As the petitioner suffered permanent physical
disability of 90% and has been incapacitated from performing
normal activities throughout her life, she is awarded a sum of
Rs.1,50,000/- (Rupees One Lakh Fifty Thousand Only) towards
pain and suffering and mental agony.

(h) Medicines and Medical Treatment
Counsel for petitioner contended that an amount of
Rs.5,57,626/- has been claimed towards the medical
bills/treatment by the petitoiner which has not been disputed on
behalf of insurance company.

Accordingly, petitioner is awarded a sum of
Rs.5,57,626/- towards medical bills/treatment.

(i) Conveyance & Special Diet
Though no conveyance bills have been filed on
record by the petitioner but it can be presumed that petitioner
must have spent some amount towards conveyance during the
period of treatment. In view of above, an amount of Rs.40,000/-
(Rupees Forty Thousand Only) is awarded towards conveyance
for the period of treatment.

Petitioner is further awarded an amount of
Rs.60,000/- (Rupees Sixty Thousand Only) towards special diet.

(j) Attendant Charges

Page No.108 of 313
Hon'ble High Court of Delhi in DTC V/s Lalit AIR
1981 Delhi 558 held that the victim is entitled to compensation
even if no attendant is hired as some family member renders
gratuitous services.

Further, in the case of United India Insurance Co.
Ltd. V/s Rama Swamy and Others 2012 (2) T.A.C. 34 (Del.),
value of gratuitous services rendered by family member of the
claimant was assessed at Rs.2,000/- per month.

The petitioner/injured has suffered 90% permanent
disability qua the entire body and is substantially confined
though is able to use both her upper limbs. Since the
requirement of assistance of an attendant is implicit from the
evidence on record, I am of the considered opinion that the
petitioner is required to be awarded attendant charges incurred
during the period of treatment as well as for future on the
assumption that she would require an attendant on regular basis.
The expenditure towards this end can be computed on the basis
of minimum wages of an unskilled worker relevant to the date of
accident @ Rs.3,470/- per month. The compensation for future
attendant charges is accordingly computed at Rs.6,66,240/-
(Rupees Six Lakh Sixty Six Thousand Two Hundred & Forty
Only) apart from the attendant charges of Rs.1,00,500/- incurred
during the period of treatment. Reliance in this regard may also
be placed upon MAC APP. 952/2011 Pritam Singh v. Oriental
Insurance Co. decided by Hon'ble Mr. Justice R.K. Gauba on
28 March, 2016.

57. As discussed above, the overall compensation is

Page No.109 of 313
tabulated as under:

Loss of Income/Earning Capacity Rs.14,25,600/-
Loss of amenities Rs.1,50,000/-
Loss of expectation of life due to permanent
Disability Rs.1,00,000/-
Pain and Suffering Rs.1,50,000/-
Medicines & Medical Treatment Rs.5,57,626/-
Conveyance Charges Rs.40,000/-
Special Diet Rs.60,000/-
Attendant Charges (already incurred) Rs.1,00,500/-
Future Attendant Charges Rs.6,66,240/-
-----------------
Total Rs.32,49,966/-
(Rounded Off to Rs.32,50,000/-)
(Rupees Thirty Two Lakh Fifty Thousand Only)

Claimant/petitioner is also entitled to interest @ 9%
p.a. from the date of filing of claim petition i.e. w.e.f.
17.08.2007.

58. Disbursement
Considering the medical expenses which have
already been incurred, a sum of Rs.7 lakh be released to the
petitioner and the remaining amount be fixed deposited in
twenty fixed deposits of equal amount in her name with a
nationalised bank for a period of one year, two years, three
years, four years, five years, six years, seven years, eight years,
nine years, ten years, eleven years, twelve years, thirteen years,
fourteen years, fifteen years, sixteen years, seventeen years,
eighteen years, nineteen years and twenty years respectively
without the facility of advance, loan or premature
withdrawal with release of quarterly periodical interest in her

Page No.110 of 313
account.

*******************************

59. CASE-I

Suit No.279/11
Unique Case ID No.02401C-1465102008

1. Archana Rawal W/o Sh.Anil Rawal (Mother)

2. Anil Rawal S/o Late Sh.Tilak Raj (Father)
Versus
Raj Singh @ Nasir Ali & Ors.

In brief, Master Rahul @ Honey aged about 12 years
(son of petitioners) was travelling in bus no.DL 1PC 7676 along
with his uncle on a pilgrimage since 17.06.2007 and received
fatal injuries in the accident on 20.06.2007. Compensation is
claimed by the petitioners for Rs.15,00,000/-.

60. On the pleadings of the parties, following issues were
framed for consideration vide order dated 07.04.2008 by ld.
Predecessor:-

(i) Whether the deceased Late Master Rahul @
Honey had sustained fatal injuries on 20.06.2007
at about 11:00PM at Bamukan Kentchi More,
Police Station Dharmshala, HP due to rash and
negligent driving of respondent no.1 Sh.Nazir Ali
@ Raj Singh while driving bus bearing
registration no.DL 1 PC 7676?

(ii) Whether the petitioners are entitled to any

Page No.111 of 313
compensation? If so to what amount and from
whom?

(iii) Relief.

61. In support of the claim, petitioner no.1 was examined
as PW1.

PW1 Archana Rawal testified on the lines of claim
petition and proved copy of ration card (Ex.PW1/1), copy of
certificate of merit issued to her son along with copy of I-card
(Ex.PW1/2), cremation receipt (Ex.PW1/3), death certificate of
the deceased (Ex.PW1/4), attested copy of postmortem report
(Ex.PW1/5).

On cross-examination she deposed that she was not
an eyewitness to the accident and her son was travelling with his
maternal uncle.

62. Issue No. (ii)
Whether the petitioners are entitled to any
compensation? If so to what amount and from
whom?

Counsel for the petitioner referred to judgments
passed by MACT Tribunal, Karkardooma Courts (MAC Petition
No.391/16 decided on 06.05.2016 by Ms. Ravinder Bedi, PO
MACT & MACT Petition No.195/10 decided on 08.06.2016 by
Ms. Kiran Bansal, PO, MACT).

Page No.112 of 313
The method of calculation of compensation in
accident claim cases involving death of children in Motor
Vehicular Accident has been further clarified in MAC Appeal
No.554/10 Chetan Malhotra vs. Lala Ram along with fifteen
other appeals decided by Hon'ble Mr. Justice R.K. Gauba on
13.05.2016. Taking note of all the relevant judgments on the
issue for determination of compensation in case involving death
of children, the conclusions have been made in para 62 to 74 as
under:

"62. The tribunals and courts will have to break free
from the groove or strait-jacket of the stale, outdated and
obsolete prescription of the second schedule to M.V. Act .
Time has come, and it is the obligation of this court to do
so, to bring the benchmark in Second Schedule to M.V.
Act upto date, in the present matters for purposes of
award of compensation in the case of death of children so
as to make it "just" and "reasonable". The issue is
about the proper mode of achieving this objective.

63. As noted above, the learned single Judge of this
court, sitting in appeal over the judgments of the tribunal
in the case of R.K. Malik (supra) while assessing the
non-pecuniary damages had improved upon what was
granted in Lata Wadhwa (supra) in relation to an
accident of 1989 by applying the cost of inflation index
notified by the Government of India under Section 48 of
the Income Tax Act, 1961. The computation thus made
was eventually approved by the Supreme Court, though
with further addition towards future prospects. This holds
the key to the predicament faced.

64. A similar route was taken by another single bench of
this Court in a case for compensation arising out of an
incident of terrorism in Kamla Devi v. Govt. of NCT of
Delhi 2005 ACJ 216 (Delhi): 114 (2004) DLT 57,
wherein the value of the conventional sum awarded in
Lata Wadhwa (supra) was improved upon by applying
the consumer price index for industrial workers [CPI
(IW)]. The view in Kamla Devi (supra) was followed in a

Page No.113 of 313
number of subsequent decisions of this Court in cases
reported as Ashwani Gupta v. Government of India &
Ors. 117 (2005) DLT 112; Tasleema v. State (NCT of
Delhi) & Ors. ILR (2009) 6 Del 486 : (2009) 161 DLT
660 (DB); Nagrik Sangarsh Samiti & Ors. v. Union of
India & Ors. ILR (2010) 4 Del 293 : 2012 ACJ 1548;
Swarn Singh v. Union of India 2010 SCC Online Del
1190 and Ashok Sharma & Ors. v. Union of India & Ors.
ILR (2008) 1 Del 96 : 2009 ACJ 1063.

65. Having regard to the fluctuating trends in CPI (IW),
this court finds the Cost Inflation Index (CII) determined
and notified by the Ministry of Finance in Government of
India under Section 48 of Income Tax Act, 1961 for each
financial year, to be a better method to off-set the effect
of inflation on the real value of money. This approach, if
followed, would ensure that there is no inconsistency in
the awards of compensation in cases of death of children.
[ R.K.Malik (supra) and Balram Prasad v. Kumar Saha
(2014) 1 SCC 384]. Since the amount which requires to
be subjected to correction was determined by decision in
R.K.Malik wherein cause of action had arisen on
10.11.1997, the financial year 1997-98 is taken as the
"base year".

66. For ready reference, the rates of Cost Inflation
Index (CII) notified by the government till date, to the
extent necessary, are reproduced in the table given below

Financial CII Financial CII
Year Year
Before 100 2004-05 480
1/4/1981
1981-82 100 2005-06 497
1982-1983 109 2006-07 519
XXX XXX 2007-08 551
1997-98 331 2008-09 582
1998-99 351 2009-10 632
1999-2000 389 2010-11 711
2000-01 406 2011-12 785
2001-02 426 2012-13 852
2002-03 447 2013-14 939

Page No.114 of 313
2003-04 463 2014-15 1024
2015-16 1081

CONCLUSIONS

67. In the considered view of this Court, the cases for
compensation on account of death of children in motor
vehicular accident cases ought to be dealt with by
considering the claim towards pecuniary damages
(towards loss to estate), in accordance with the age-
group wise categories as in R.K.Malik (supra); the first
category being of children less than 10 years‟ in age, the
second category being of children more than 10 years‟
and up to 15 years‟ in age, and the third category of
children more than 15 years‟ but not having attained the
age of majority (18 years). The children in the third
category would ordinarily be of such age group as is
generally receiving formal school education or those that
are (being) imparted special training so as to be
equipped with requisite skills to be gainfully employed in
a variety of trades. They are after all nearing adulthood
and thus, on the threshold of becoming self-reliant. In
such cases, the prospects of their employability and
earnings in future or present, based on evidence adduced
about their academic track record or training in special
talents or skills, would need to be borne in mind. As in
Lata Wadhwa (supra), the claim for pecuniary damages
arising out of death of children of this age group cannot
be at par with the lower age groups falling in the first
and second category. Therefore, the pecuniary loss to
estate due to their death would deserve to be worked out
by applying a higher multiplier on the notional income
(of non-earning persons) unless, of course, case is
properly made out for higher considerations. Noticeably,
in Sarla Verma (supra) the Supreme Court specified the
multiplier of 18 for cases where the deceased was in the
age-group of 15 years‟ to 20 years‟ old. For the first
and second category, however, the multiplier of 10 and
15 respectively, as used in R.K. Malik (supra), would
hold good.

68. Since in the claims arising out of death of children,
generally speaking, (non-earning hands), the income is
to be notionally assumed on the basis of the second
schedule to the MV Act , the general practice of deduction
of one-half (50%) towards personal & living expenses, as

Page No.115 of 313
applied in case of bachelors above the age of 18 years
would be unfair. Pertinently, the notional income
specified for non-earning persons in the second schedule
is very low as compared to the rates of minimum wages.
Therefore, the deduction of one-third (1/3 rd) on this
account, as provided by the first note below the second
schedule would only be appropriate.

69. The award of compensation must necessarily take
into account non-pecuniary damages. In R.K. Malik
(supra), 75,000/- awarded by this Court as the
"conventional compensation" was enhanced by the
Supreme Court by further similar amount ( 75,000/-) as
the "compensation for future prospects". For the reasons
set out earlier, in the context of pecuniary loss to estate,
the composite sum of non-pecuniary damages of
1,50,000/- [as awarded in R.K. Malik (supra)] would
deservedly be added, but with suitable correction so as to
ensure that the deficiency in the real value of money is
made good. As noted (in para 46) earlier, the Supreme
Court justified the addition of `75,000/- towards
compensation for "future prospects" by noting that the
said amount was "roughly half of the amount given on
account of pecuniary damages". Since the court had also
upheld the award of similar sum (`75,000/-) by this court
as "conventional compensation", both amounts of non-
pecuniary damages, put together, account for roughly an
amount equivalent to the sum computed as pecuniary
loss to estate. Thus, this court is of the view that a
composite sum equal to the amount computed as
pecuniary loss to estate may be added as non-pecuniary
damages (inclusive of conventional compensation and
for future prospects), in such cases as at hand to arrive at
the appropriate figure of „just compensation‟.

70. It has been noticed by this Court that the
tribunals have been assessing the compensation and
awarding it to the last rupee, at times even in the fraction
of a rupee, not bothering to follow the practice of
rounding off. Awards in at least two of the cases from
which the appeals at hand arise provide ready
illustration. This seems to be not correct. It must be
added here that human misery cannot be calculated with
such mathematical precision. Even otherwise for
convenience of accounting, it is desirable that the
amount of award is rounded off to the nearest (if not

Page No.116 of 313
next) thousands of rupees.

71. Subject to all other requisite conditions being
fulfilled, for the foregoing reasons, in order to bring
about consistency and uniformity in approach to the
issue, it is held that claims for compensation on account
of death of children shall be determined as follows :

(i). Till such time as the law is amended by the
legislature, or the Central Government notifies the
amendment to the Second Schedule in exercise of the
enabling power vested in it by Section 163-A (3) of the
Motor Vehicles Act, 1988, and except in cases wherein
the prospects of employability and earnings (in future or
present) of the deceased child are proved by cogent and
irrefutable evidence, this having regard, inter alia, to the
academic record or training in special talents or skills,
for computing the pecuniary damages on account of the
loss to estate, the notional income of non-earning
persons (`15000/-p.a.) as specified in the Second
Schedule (brought in force from 14.11.1994), shall be
assumed to be the income of the deceased child, and
taken into account after it is inflation-corrected with the
help of Cost Inflation Index (CII) as notified by the
Government of India from year to year under Section 48
of the Income Tax Act, 1961, by applying the formula
indicated hereinafter.

(ii) For inflation-correction, the financial year of 1997-
1998 shall be treated as the "base year" and the value of
the notional income relevant to the date of cause of
action shall be computed in the following manner :-

` 15,000/- x A ÷331

[wherein the figure of „`15,000/-‟ represents the notional
income specified in the second schedule requiring
inflation-correction; „A‟ represents the CII for the
financial year in which the cause of action arose (i.e. the
accident / death occurred); and the figure of „331‟
represents the CII for the „base year‟]

(iii). After arriving at an appropriate figure of the present
equivalent value of the notional income (i.e. inflation-
corrected amount), it shall be rounded off to a figure in
next thousands of rupees.

Page No.117 of 313
(iv). The amount of notional income thus calculated shall
be reduced to two-third, the deduction to the extent of
one-third being towards personal & living expenses of
the deceased, the balance taken as the annual loss to
estate (hereinafter also referred to as "the
multiplicand").

(v). For assessment of the pecuniary damages on account
of the death of children upto the age of 10 years, the loss
to estate shall be calculated, capitalizing the
multiplicand, by applying the multiplier of ten (10).

(vi). For children of the age-group of more than 10 years
upto 15 years, the loss to estate shall be calculated by
applying the multiplier of fifteen (15).

(vii). For children of the age-group of more than 15 years
but less than 18 years, the loss to estate shall be
calculated by applying the multiplier of eighteen (18).

(viii). After the pecuniary loss to estate has been worked
out in the manner indicated above, an amount equivalent
to the amount thus computed shall be added to it as the
composite non-pecuniary damages taking care of not
only
the conventional heads but also towards future prospects
as awarded in R.K. Malik v. Kiran Pal (2009) 14 SCC 1.

(ix). The final sum thus arrived at, appropriately rounded
off, if so required to the nearest (if not next) thousands of
rupees, shall be awarded as compensation for the death
of the child.

72. The ruling in National Insurance Company
Ltd. v. Farzana (2009 ACJ 2763) was rendered by a
learned single Judge of this Court on 14.07.2009.
Though it had built upon the dispensation in R.K.Malik
(supra), given the effect of inflation elaborately discussed
above, it has outlived its utility for cases relating to later
years. At the same time, it must be noted, that the view in
Farzana (supra) has governed the field till date,
inasmuch as it has been followed by other single benches
of this Court as also by tribunals in various cases. Given
the modified method of calculation as is being
determined by this judgment, it is possible that in some of
the earlier decided cases, the compensation computed on
revised lines may fall below the amount of 3,75,000/-

Page No.118 of 313
computed in Farzana (supra). Since the awards in such
earlier decided cases were granted with reference to the
ratio in Farzana (supra), it will not be fair to order any
modification in cases that relate to the period on or after
10.05.2000 (the date of cause of action in Farzana) so as
to reduce the awards below the said amount of
3,75,000/-, particularly as some of such awards may
already have been satisfied, including on account of
interim orders of this Court.

73. Thus, in cases founded on cause of action arising on
or after 10.05.2000, the amount of compensation shall
not in any case be less than 3,75,000/- which was
awarded in the case of National Insurance Co. Ltd. v.
Farzana (2009 ACJ 2763).

74. Case-wise decisions taken hereinafter shall provide
necessary illustrations for applying the above-directed
method of computation."

63. It may further be observed that MAC Appeal
No.250/13 decided along with MAC Appeal No.554/10 Chetan
Malhotra vs. Lala Ram (supra) involved death of a 11 years old
child namely Mukesh in an accident on 24.09.20007. Para 82 of
the judgment referred to above gives a clear illustration for
calculation of compensation and may be beneficially quoted.

" There is no case for any higher consideration. The
death had occurred on 24.09.2007 and therefore, the CII
for the financial year 2007-2008 (i.e. 551) would apply.
As the age of the deceased child will 11 years, the
multiplier of 15 would be appropriate. The inflation-
corrected notional income thus comes to (Rs.15,000/- X
551/331) Rs.24,969/-, rounded off to Rs.25,000/-. After
deducting 1/3rd and on the multiplier of 15, the pecuniary
loss to estate is computed as (Rs.25,000/-X 2/3 X 15)
Rs.2,49,999/- rounded off to Rs.2,50,000/-. Adding the
similar amount towards composite non-pecuniary
damages, the total compensation payable in this case
comes to Rs.5,00,000/-. Following the reasons set out in
the context of the preceding cases, the rate of interest is
increased to 9% p.a."

Page No.119 of 313
64. It may be noticed that the present case is not a case
for assessment of higher consideration in respect of deceased
Master Rahul @ Honey on account of any exceptional
qualifications though a certificate relating to painting
competition as awarded by Bhartiya Art Education Society
(Ex.PW1/2) has been filed. The death had occurred on
20.06.2007 and therefore, the CII for the financial year 2007-
2008 (i.e. 551) would apply. The age of the deceased was 12
years as per the year of birth 1994 reflected in the copy of
Ration Card (Ex.PW1/1) as well as the age reflected in the
postmortem report. The same is not disputed by the insurance
company and the multiplier of 15 would be appropriate as
applicable in cases for children in between bracket of 10 to 15
years. The inflation-corrected notional income thus comes to
(Rs.15,000/- X 551/331) Rs.24,969/-, rounded off to
Rs.25,000/-. After deducting 1/3rd and on the multiplier of 15,
the pecuniary loss to estate is computed as (Rs.25,000/-X 2/3 X

15) Rs.2,49,999/- rounded off to Rs.2,50,000/-. Adding the
similar amount towards composite non-pecuniary damages, the
total compensation payable in this case comes to Rs.5,00,000/-.
The petitioners shall be further entitled to interest @ 9% from
the date of filing of claim petition i..e. 16.08.2007 till
realization.

65. On realization, both the petitioners shall be entitled to
50% of the compensation amount. Further, out of the same
Rs.75,000/- each shall be released to petitioner No.1 Archana

Page No.120 of 313
Rawal and petitioner No.2 Anil Rawal (parents of deceased) and
remaining amount along with proportionate up-to-date interest
shall be kept in five fixed deposits of equal amount in their
names with a nationalized bank for a period of one year, two
years, three years, four years and five years without the facility
of advance, loan or premature withdrawal with release of
quarterly periodical interest in their respective accounts.

*************************

66. CASE-J

Suit No.325/11
Unique Case ID No.02401C-1465172008

1. Surinder Nijhawan S/o Lt. Sh.Krishan Lal, (Father)

2. Baby Diksha D/o Surinder Nijhawan, (Sister)

3. Master Akshay Nijhawan S/o Surinder Nijhawan, (Brother)

(Petitioner No.2 & 3 being minor through their natural
guardian/father Sh.Surinder Nijhawan)
Versus
Raj Singh @ Nasir Ali & Ors.

In brief, Baby Dolly aged about 16 years (wrongly
typed as 13 years in the petition) was travelling in bus no.DL
1PC 7676 along with her parents on a pilgrimage since
17.06.2007 and received fatal injuries in the accident on
20.06.2007. Petitioner no.1 is father of deceased and petitioner
no.2 & 3 are the minor sister and brother of the deceased who
were aged about 15 and 09 years at the time of filing of claim
petition. Petitioner No.1 and 3 also received injuries in the
accident while mother of the deceased Smt. Barkha Nijhawan

Page No.121 of 313
expired in the accident. Compensation is claimed for
Rs.15,00,000/-.

67. On the pleadings of the parties, following issues were
framed for consideration vide order dated 07.04.2008 by ld.
Predecessor:-

(i) Whether the deceased Late Baby Dolly had
sustained fatal injuries on 20.06.2007 at about
11:00 p.m. at Bamukan Kentchi More, Police
Station Dharmshala, HP due to rash and negligent
driving of respondent no.1 Sh.Nazir Ali @ Raj
Singh while driving bus bearing registration
no.DL-1 PC-7676?

(ii) Whether the petitioners are entitled to any
compensation? If so to what amount and from
whom?

(iii) Relief.

68. In support of the claim common evidence of
Surender Nijhwan was led as PW1, as placed in Suit No.324/11.
He testified in respect of the accidental injuries received by him
(in Suit No.324/11), injuries received by his son Master Akshay
(in Suit No.323/11), fatal injuries received by his daughter Baby
Dolly (in present Suit No.325/11) and fatal injuries received by
his wife Smt. Barkha Nijhawan (in Suit No.322/11).

Page No.122 of 313
PW1 Surender Nijhwan testified that he had filed
separate petitions in respect of death of his wife Late Smt.
Barkha Nijhwan, daughter Late Baby Dolly and in respect of
injuries suffered by him and his son Master Akshay. He further
testified that on 20.06.2007 they were travelling in bus no.DL 1
PC 7676 on pilgrimage in Himachal Pradesh since 17.06.2007.
The bus was driven by respondent no.1 at a high speed in a rash
and negligent manner in hilly area despite being warned by the
passengers. Consequent to the accident Barkha Nijhwan and
Baby Dolly suffered fatal injures while he along with Master
Akshay suffered grievous injuries.

He further testified that Barkha Nijhwan aged about
35 years was self employed and earning about Rs.6,000/- per
month as she was running lady boutique-cum-parlour at 122,
Subhash Nagar, Delhi.

He further testified that deceased Baby Dolly was a
good student and used to attain good percentage of marks.

He further testified that Master Akshay suffered
grievous injuries in the accident and after being initially taken to
RPGMC Hospital, Tanda, District Kangra on 20.06.2007 was
shifted to PGI, Chandigarh and discharged on 29.06.2007.
Further he was under treatment at Appollo Hospital as his left
side was paralysed.

He further testified that PW1 sustained severe
injuries and was discharged on 22.06.2007 from Dr.RPGMC
Hospital to perform last rites of his wife and daughter. Further
he was proprietor of Neelam Digital Photo Studio and earning
about Rs.10,000/- per month.

Page No.123 of 313
He further relied upon documents Ex.PW1/1 to
PW1/17 filed along with affidavit i.e. his medical bills
(Ex.PW1/1), prescriptions (Ex.PW1/2), Ration card
(Ex.PW1/3), burial receipt of both deceased (Ex.PW1/4), death
certificate of both deceased (Ex.PW1/5), education papers of
both deceased (Ex.PW1/6), medical bills of treatment of Master
Akshay (Ex.PW1/7-collectively), prescription and treatment
record and hospital record of Master Akshay (Ex.PW1/8), his
Election I-card and Election I-card of deceased Barkha
(Ex.PW/9), MLC of Akshay (Ex.PW1/10), MLC of deponent
(Ex.PW1/11), attested copy of FIR No.125/07 dated 21.06.2007.
PS Dharamshala, HP (Ex.PW1/12), postmortem report of Baby
Dolly (Ex.PW1/13), postmortem report of Barkha Nijhawan
(Ex.PW1/14), MLC of Barkha Nijhawan (Ex.PW1/15), attested
insurance policy, registration certificate, driving licence of
driver of bus (Ex.PW1/16) , MLC of Master Akshay
(Ex.PW1/17).

On cross-examination on behalf of respondent no.3
he deposed that tour was organised by Sh.Baldev Ahuja and
there were 23 adults and six children travelling in the bus. He
was sitting on the front side and awake at the time of accident.
He denied that the owner of the bus contrary to the terms of
permit was carrying more passengers than the capacity of the
bus. He further deposed that the bus was driven at a high speed
and the driver was warned by a passenger sitting ahead of them
to drive slowly. He had no other document except the Voter's
Card to show the age of his wife. Further he had not placed any
document to show income, profession as well as educational

Page No.124 of 313
qualification of his wife.

He admitted that he had not filed any document to
show that his son Akshay could not study and had been further
advised rest as mentioned in the affidavit. Further there was no
specific document from any doctor to show that Master Akshay
is not well to perform any work.

He further stated that he did not have any document
to show his employment and income.

69. Issue No. (ii)
Whether the petitioners are entitled to any
compensation? If so to what amount and from
whom?

The method of calculation of compensation in
accident claim cases involving death of children in Motor
Vehicles Accident has been clarified in MAC Appeal No.554/10
Chetan Malhotra vs. Lala Ram along with fifteen other appeals
decided by Hon'ble Mr. Justice R.K.Gauba on 13.05.2016 which
have been quoted earlier in para 62 and are not repeated herein
for sake of brevity.

70. It may further be observed that MAC Appeal
No.175/2014 decided along with MAC Appeal No.554/10
Chetan Malhotra vs. Lala Ram (supra) involved death of a 17
years old child namely Hussain Haider in an accident on
17.07.2010. In the aforesaid case, the appeal presented by the
insurance company which had been fastened with the liability to

Page No.125 of 313
pay the compensation assailed the judgment of the tribunal
pronounced on 31.10.2013 whereby compensation in the sum of
Rs.12,02,075/- was awarded in favour of the claimants. The
amount of compensation awarded included Rs.4,88,248/-
towards medical expenses, the compensation towards loss of
dependency and other non-pecuniary heads being in the sum of
Rs.7,13,827/-. It was conceded at the time of hearing that the
child was born on 02.05.1993 and thus at the time of his death
on 17.07.2010, he was a little over 17 years in age. The tribunal
calculated the loss of dependency assuming the income of the
deceased at Rs.6,448/- adopting the minimum wages of a
matriculate and applying the multiplier of 13, going by the age
of the mother (46 years).

However, the Hon'ble High Court in appeal in para
91, assessed the compensation as follows:

"91. Since the death occurred on 17.07.2010, the CII for the
financial year 2010-2011 would apply (i.e. 711). Therefore, the
notional income comes to (Rs.15,000/- x 711/331) Rs.32,220/-,
rounded off to Rs.33,000/-. After deducting 1/3 rd towards
personal and living expenses and applying the multiplier of 18,
the pecuniary loss to estate comes to (Rs.33,000 x 2/3 x 18)
Rs.3,96,000/-. Adding an equivalent amount towards composite
non-pecuniary damages and Rs.4,88,248/-incurred as medical
expenses, the total compensation in the case comes to
Rs.12,80,248/-, rounded off to Rs.12,81,000/-. Thus, the
compensation is accordingly enhanced. It shall carry interest as
levied by the tribunal. The balance lying in deposit made by the
insurer in terms of the interim order shall be released to the
claimants. The insurer shall deposit the balance of its liability
under the modified award with the tribunal within 30 days of this
judgment making it available to be released to the claimants."

Further, MAC Appeal No.100/2013 decided along
with MAC Appeal No.554/10 Chetan Malhotra vs. Lala Ram

Page No.126 of 313
(supra) involved death of a 17 years old child namely Mohd.
Asif in an accident on 14.05.2011. The assessment was made by
Hon'ble High Court in para 95 as follows:

"95. The death having occurred on 14.05.2011, the
calculations with regard to the annual loss to estate
would be same as in the preceding case (i.e. 24,000/-).
Since the deceased was 17 years old, the multiplier of 18
would apply. Therefore, the total pecuniary loss to estate
is calculated as ( 24,000/- x 18) 4,32,000/-. Adding an
equivalent amount towards composite non-pecuniary
damages, the total compensation payable in this case
comes to ( 4,32,000/- x 2) 8,64,000/-. As in the earlier
cases, the rate of interest is increased to 9% p.a. The
award is modified accordingly. The insurer is directed to
deposit the requisite amount under the modified award
within 30 days. The tribunal shall release it accordingly
to the claimants."

71. It may be noticed that the instant case is not a case
for assessment of higher consideration in respect of deceased
Baby Dolly on account of any exceptional qualifications. The
death of deceased had occurred on 20.06.2007 and therefore, the
CII for the financial year 2007-2008 (i.e. 551) would apply. As
the age of the deceased was 16 years 01 month on the date of
accident as per the date of birth 23.04.1991 reflected in the 10 th
class certificate (Ex.PW1/6) though the same was mentioned as
13 years in the petition. The multiplier of 18 would be
applicable. The inflation-corrected notional income thus comes
to (Rs.15,000/- X 551/331) Rs.24,969/-, rounded off to
Rs.25,000/-. After deducting 1/3rd and on the multiplier of 18,
the pecuniary loss to estate is computed as (Rs.25,000/-X 2/3 X

18) Rs.3,00,000/-. Adding the similar amount towards
composite non-pecuniary damages, the total compensation

Page No.127 of 313
payable in this case comes to Rs.6,00,000/-. The petitioners
shall be further entitled to interest @ 9% from the date of filing
of claim petition i..e. 16.08.2007 till realization.

72. For purpose of disbursement, petitioner no.1 shall
be entitled to Rs.3,00,000 with upto date proportionate interest
and petitioner no.2 and 3 minor brother and sister of the
deceased shall be entitled to Rs.1,50,000/-each with upto date
proportionate interest.

On realization, 20% shall be released to petitioner
no.1 Surender Nijhwan (father of deceased) and remaining 80%
along with proportionate up-to-date interest shall be kept in
seven fixed deposits of equal amount in his name with a
nationalized bank for a period of one year, two years, three
years, four years and five years respectively without the facility
of advance, loan or premature withdrawal with release of
quarterly periodical interest in his account.

Amount of the share of petitioner no.2 and 3 shall be
fixed deposited with a nationalized bank till they attain the age
of 21 years without the facility of advance, loan or premature
withdrawal with release of quarterly periodical interest in
favour of petitioner no.1 Surinder Nijhawan (father) for the
benefits of minors.

****************************************

73. CASE-K

Suit No.322/11

Page No.128 of 313
Unique Case ID No.02401C-1465112008

1. Surinder Nijhawan S/o Lt. Sh.Krishan Lal, (Husband)

2. Baby Diksha D/o Surinder Nijhawan, (Daughter)

3. Master Akshay Nijhawan S/o Surinder Nijhawan (Son)

(Petitioner No.2 & 3 being minor through their natural
guardian/father Sh.Surinder Nijhawan)
Versus
Raj Singh @ Nasir Ali & Ors.

In brief, Smt. Barkha Nijhawan aged about 35 years
(wife of petitioner no.1) was travelling in bus no.DL 1PC 7676
along with her husband Shri Surinder Nijhawan and kids on a
pilgrimage since 17.06.2007 and received fatal injuries in the
accident on 20.06.2007. Petitioner no.1 is the husband of
deceased and petitioner no.2 & 3 are the minor daughter and son
of the deceased who were aged about 15 and 09 years at the time
of filing of claim petition. Baby Dolly daughter of petitioner
no.1 also expired in the accident while petitioner No.1 Surinder
Nijhawan and petitioner No.3 Master Akshay Nijhawan
sustained injuries in the accident. It is further the case of
petitioner that the deceased was running a ladies boutique and
earning about Rs.6,000/- per month. Compensation is
accordingly claimed for Rs.20,00,000/-.

74. On the pleadings of the parties, following issues were
framed for consideration vide order dated 11.02.2008 by ld.
Predecessor:-

(i) Whether the deceased Barkha Nijhawan

Page No.129 of 313
had sustained fatal injuries on 20.06.2007 at
about 11:00PM at Bamukan Kentchi More,
Police Stattion Dharmshala, HP due to rash
and negligent driving of respondent no.1
Sh.Nasir Ali @ Raj Singh while driving bus
bearing registration no.DL 1 PC 7676?

(ii) Whether the petitioners are entitled to any
compensation? If so to what amount and from
whom?

(iii) Relief.

75. In support of the claim petition common evidence of
Surinder Nijhwan was led as PW1 as placed in Suit No.324/11.
He testified in respect of the accidental injuries received by him
(in Suit No.324/11), injuries received by his son Master Akshay
(in Suit No.323/11), fatal injuries received by his daughter Baby
Dolly (in Suit No.325/11) and fatal injuries received by his wife
Smt. Barkha Nijhawan (in present Suit No.322/11).

PW1 Surender Nijhwan testified that he had filed
separate petitions in respect of death of his wife Late Smt.
Barkha Nijhwan, daughter Late Baby Dolly and in respect of
injuries suffered by him and his son Master Akshay. He further
testified that on 20.06.2007 they were travelling in bus no.DL 1
PC 7676 on pilgrimage in Himachal Pradesh since 17.06.2007.
The bus was driven by respondent no.1 at a high speed in a rash

Page No.130 of 313
and negligent manner in hilly area despite being warned by the
passengers. Consequent to the accident Barkha Nijhwan and
Baby Dolly suffered fatal injures while he along with Master
Akshay suffered grievous injuries.

He further testified that Barkhas Nijhwan aged about
35 years was self employed and earning about Rs.6,000/- per
month as she was running lady boutique cum parlor at 122,
Subhash Nagar, Delhi.

He further testified that deceased Baby Dolly was a
good student and used to attain good percentage of marks.

Page No.131 of 313
record of Master Akshay (Ex.PW1/8), his Election I-card and
Election I-card of deceased Barkha (Ex.PW/9), MLC of Akshay
(Ex.PW1/10), MLC of deponent (Ex.PW1/11), attested copy of
FIR No.125/07 dated 21.06.2007. PS Dharamshala, HP
(Ex.PW1/12), postmortem report of Baby Dolly (Ex.PW1/13),
postmortem report of Barkha Nijhawan (Ex.PW1/14), MLC of
Barkha Nijhawan (Ex.PW1/15), attested insurance policy,
registration certificate, driving licence of driver of bus
(Ex.PW1/16) , MLC of Master Akshay (Ex.PW1/17).

He further stated that he did not have any document
to show his employment and income.

Page No.132 of 313
76. Issue No. (ii)
Whether the petitioners are entitled to any
compensation? If so to what amount and
from whom?

Counsel for petitioners contended that the income of
the deceased be assessed at Rs.6,000/- per month as she was
self-employed and running a boutique.

However, the same was opposed by counsel for
Insurance Company and it was urged that the income be
assessed on the basis of minimum wages of a unskilled labourer.

Admittedly in the present case no documentary
evidence has been filed by the petitioners to prove that the
deceased was running a boutique as claimed. Neither any
evidence has been led to show in case any products for running
the boutique were purchased by the deceased, nor any other
documents have been produced to infer that the deceased was
running the business and earning about Rs.6,000/- per month. In
view of above the bald statement of petitioner cannot be
accepted that the deceased was earning Rs.6,000/- per month. In
the facts and circumstances, I am inclined to assess the
compensation on the basis of gratuitous services rendered as a
homemaker which are more beneficial to the petitioners than
assessing the compensation on minimum wages of a skilled
worker for the relevant period.

77. The principles to assess the value of services

Page No.133 of 313
rendered by a homemaker so as to calculate the loss of
dependency in case of death in road accident as summed up in
para 34 of Royal Sundaram Alliance Insurance Co. Ltd. vs.
Manmeet Singh & Others 2012 ACJ 721 may be quoted:

"34. To sum up, the loss of dependency on account of
gratuitous services rendered by a housewife shall be:-
(i)Minimum salary of a Graduate where she is a Graduate.

(ii)Minimum salary of a Matriculate where she is a
Matriculate.

(iii)Minimum salary of a non-Matriculate in other cases.

(iv)There will be an addition of 25% in the assumed income
in (i), (ii) and (iii) where the age of the homemaker is upto
40 years; the increase will be restricted to 15% where her
age is above 40 years but less than 50 years; there will not
be any addition in the assumed salary where the age is more
than 50 years.

(v)When the deceased home maker is above 55 years but less
than 60 years; there will be deduction of 25%; and when the
deceased home maker is above 60 years there will be
deduction of 50% in the assumed income as the services
rendered decrease substantially. Normally, the value of
gratuitous services rendered will be NIL (unless there is
evidence to the contrary) when the home maker is above 65
years.

(vi)If a housewife dies issueless, the contribution towards the
gratuitous services is much less, as there are greater
chances of the husband‟s re-marriage. In such cases, the
loss of dependency shall be 50% of the income as per the
qualification stated in (i), (ii) and (iii) above and addition
and deduction thereon as per (iv) and (v) above.

(vii)There shall not be any deduction towards the personal
and living expenses.

(viii)As an attempt has been made to compensate the loss of
dependency, only a notional sum which may be upto
Rs.25,000/- (on present scale of the money value) towards
loss of love and affection and Rs. 10,000/- towards loss of
consortium, if the husband is alive, may be awarded.

Page No.134 of 313
Since a homemaker is not working and thus not earning, no
amount should be awarded towards loss of estate."

78. In the present case, no document regarding the
educational qualification of deceased has been brought to my
notice. Since the deceased was a housewife, the compensation
has to be assessed on the basis of notional income of a non-
matriculate as per the principles laid out in the case of Royal
Sundaram Alliance Insurance Co. Ltd. vs. Manmeet Singh &
Others (supra). The minimum wages of a non matriculate as on
20.06.2007 were Rs.3,663/- per month. Further, an addition of
25% is required to be made as per the principles laid down in the
aforesaid judgment. The notional income of the deceased for the
purpose of assessment of compensation is accordingly
considered as Rs.4,578.75 per month {Rs.3,663/- (minimum
wages of non matriculate as on 20.06.2007) plus Rs.915.75
(25% addition of assumed income).

Selection of multiplier:

PW-1 Surender Nijhawan (husband of deceased)
testified that the deceased was aged about 35 years and further
proved the Ration Card (Ex.PW1/3) issued on 20.04.2005
wherein year of birth of deceased is reflected as 1972. In view
of above the age of the deceased as on 20.06.2007 was above
35 years. As per Sarla Verma (Smt.) & Ors. vs. Delhi
Transport Corporation & Anr. (2009) 6 SCC 121, the relevant
multiplier of 15 is applicable for purpose of assessment.

Page No.135 of 313
There shall not be any deduction towards personal
and living expenses as per principles laid down in Royal
Sundram (Supra).

The loss of dependency accordingly works out to
Rs.8,24,175/- { Rs.3,663/- (minimum wages of non matriculate
as on 20.06.2007) plus Rs.915.75 (25% addition of assumed
income)x 12 x 15 (multiplier)}.

79. Compensation under non-pecuniary heads:

Though a wide discretion in determination of
compensation is given but the amplitude of such powers has to
be exercised in consonance with settled principles and it needs
to be borne in mind that compensation is neither expected to be
windfall or bonanza or source of profit but at the same time
should not be pittance.
There cannot be any discrimination in
compensation under the non-pecuniary heads in case of
death of wife or husband relating to the heads of loss of
consortium, loss of love and affection and funeral expenses.
It has been held by the Hon'ble Apex Court in Rajesh & Ors. v.
Rajbir Singh & Ors., (2013) 9 SCC 54 that the compensation is
to be awarded for a sum of Rs.1 lakh each towards loss of love
and affection and loss of consortium. Rs.25,000/- towards
funeral expenses and Rs.10,000/- towards loss of estate.
Reference may also be made to MAC Appeal No.1036/12
HDFC Ergo General Insurance Company Ltd. vs. Bablu
Sahani decided by Hon'ble Mr. Justice G.P.Mittal 03.03.2015,
wherein the aforesaid amount was awarded towards

Page No.136 of 313
compensation in case of death of a homemaker.
Further, interest @ 9% per annum was awarded on
the award amount by the Hon'ble Apex Court in Municipal
Corporation of Delhi v. Association of Victims of Uphaar
Tragedy , 2012 ACJ 48 (SC).
Considering the facts and circumstances petitioner
no.1 is entitled to Rs.1 lakh for loss of consortium. Petitioners
are further entitled to Rs.1 lakh towards loss of love and
affection and Rs.25,000/- towards funeral expenses of deceased.
Since deceased was a homemaker, no amount is awarded
towards loss of estate as held in Royal Sundram (supra).

80. Petitioners/claimants are accordingly entitled to
compensation computed as under:

Loss of financial dependency Rs.8,24,175/-
Loss of love and affection Rs.1,00,000/-
Loss of consortium to husband Rs.1,00,000/-
Funeral Expenses Rs.25,000/-
________________
Total Rs.10,49,175/-
___________
(Rupees Ten Lakh Forty Nine Thousand One Hundred & Seventy Five Only)

The claimants/petitioners are also entitled to interest
@ 9% p.a. from the date of filing of claim petition w.e.f.
16.08.2007 till realization.
The amount of interim award, if any, shall however
be deducted from the above amount, if the same has already
been paid to the petitioners.

Page No.137 of 313
81. For purpose of disbursement, petitioner no.1
Surender Nijhwan (husband of deceased) shall be entitled to
60% and petitioner petitioner No.2 Baby and petitioner No.3
Master Akshay (children of the deceased) shall be entitled to
20% each of the award amount along with proportionate up-to-
date interest.

On realization, out of the share of petitioner no.1,
Rs.1,00,000/- shall be released to the petitioner and remaining
amount shall be kept in seven fixed deposits of equal amount in
his name with a nationalized bank for a period of one year, two
years, three years, four years, five years, six years and seven
years respectively without the facility of advance, loan or
premature withdrawal with release of quarterly periodical
interest in his account.

The share of petitioner no.2 and 3 (children of the
deceased) shall be put in fixed deposit in their respective names
till they attain the age of 21 years without the facility of
advance, loan or premature withdrawal with release of quarterly
periodical interest in the account of petitioner No.1 Surinder
Nijhawan (father) for the benefit of minors.

************************************

82. CASE-L

Suit No.324/11
Unique Case ID No.02401C-1465132008

Surinder Nijhawan S/o Late Sh.Krishan Lal,

Page No.138 of 313
Versus
Raj Singh @ Nasir Ali & Ors.

In brief, petitioner was travelling in bus no.DL 1PC
7676 along with his wife Smt. Barkha Nijhawan, daughter Baby
Dolly and son Master Akshay on a pilgrimage since 17.06.2007
and received grievous injuries in the accident on 20.06.2007.
Wife of petitioner namely Barkha Nijhawan and daughter Baby
Dolly received fatal injuries in the accident while Master
Akshay suffered grievous injuries. Petitioner was admitted at
Dr.Rajender Prasad Government College Hospital, Tanda,
District Kangra, HP on 20.06.2007 after the accident and was
discharged on 22.06.2007. It is further the case of petitioner that
he was running a Photo Studio, at Hari Nagar, Delhi and
earning Rs.10,000/- per month. Compensation is claimed for a
sum of Rs.5,00,000/-.

83. On the pleadings of the parties, following issues were
framed for consideration vide order dated 07.04.2008 by ld.
Predecessor:-

(i) Whether the petitioner had sustained
injuries on 20.06.2007 at about 11:00PM at
Kentchi More, Police Station Dharmshala, HP
due to rash and negligent driving of respondent
no.1 while driving vehicle No.DL 1 PC 7676?

(ii) Whether the petitioner is entitled to any
compensation? If so to what amount and from

Page No.139 of 313
whom?

(iii) Relief.

84. In support of the claim petition common evidence of
Surender Nijhwan was led as PW1 as placed in Suit No.324/11.
He testified in respect of the accidental injuries received by him
(in present Suit No.324/11), injuries received by his son Master
Akshay (in Suit No.323/11), fatal injuries received by his
daughter Baby Dolly (in Suit No.325/11) and fatal injuries
received by his wife Smt. Barkha Nijhawan (in Suit No.322/11).

PW1 Surinder Nijhwan testified that he had filed
separate petitions in respect of death of his wife Late Smt.
Barkha Nijhwan, daughter Late Baby Dolly and in respect of
injuries suffered by him and his son Master Akshay. He further
testified that on 20.06.2007 they were travelling in bus no.DL 1
PC 7676 on pilgrimage in Himachal Pradesh since 17.06.2007.
The bus was driven by respondent no.1 at a high speed in a rash
and negligent manner in hilly area despite being warned by the
passengers. Consequent to the accident Barkha Nijhwan and
Baby Dolly suffered fatal injures while he along with Master
Akshay suffered grievous injuries.

He further testified that Barkhas Nijhwan aged about
35 years was self employed and earning about Rs.6,000/- per
month as she was running lady boutique cum parlor at 122,
Subhash Nagar, Delhi.

He further testified that deceased Baby Dolly was a

Page No.140 of 313
good student and used to attain good percentage of marks.

He further testified that PW1 himself sustained severe
injuries and was discharged on 22.06.2007 from Dr.RPGMC
Hospital to perform last rites of his wife and daughter. Further
he was proprietor of Neelam Digital Photo Studio and earning
about Rs.10,000/- per month. He further relied upon
documents Ex.PW1/1 to PW1/17 filed along with affidavit i.e.
his medical bills (Ex.PW1/1), prescriptions (Ex.PW1/2), Ration
card (Ex.PW1/3), burial receipt of both deceased (Ex.PW1/4),
death certificate of both deceased (Ex.PW1/5), education papers
of both deceased (Ex.PW1/6), medical bills of treatment of
Master Akshay (Ex.PW1/7-collectively), prescription and
treatment record and hospital record of Master Akshay
(Ex.PW1/8), his Election I-card and Election I-card of deceased
Barkha (Ex.PW/9), MLC of Akshay (Ex.PW1/10), MLC of
deponent (Ex.PW1/11), attested copy of FIR No.125/07 dated
21.06.2007. PS Dharamshala, HP (Ex.PW1/12), postmortem
report of Baby Dolly (Ex.PW1/13), postmortem report of
Barkha Nijhawan (Ex.PW1/14), MLC of Barkha Nijhawan
(Ex.PW1/15), attested insurance policy, registration certificate,
driving licence of driver of bus (Ex.PW1/16) , MLC of Master
Akshay (Ex.PW1/17).

Page No.141 of 313
On cross-examination on behalf of respondent no.3
he deposed that tour was organised by Sh.Baldev Ahuja and
there were 23 adults and six children travelling in the bus. He
was sitting on the front side and awake at the time of accident.
He denied that the owner of the bus contrary to the terms of
permit was carrying more passengers than the capacity of the
bus. He further deposed that the bus was driven at a high speed
and the driver was warned by a passenger sitting ahead of them
to drive slowly. He had no other document except the Voter's
Card to show the age of his wife. Further he had not placed any
document to show income, profession as well as educational
qualification of his wife.

He further stated that he did not have any document
to show his employment and income.

85. Issue No. (ii)
Whether the petitioner is entitled to any
compensation? If so to what amount and from
whom?

It may be observed that for the purpose of assessment
of compensation, the nature of injury, the parts of body wherein
the injury was sustained, surgery if any undertaken, confinement

Page No.142 of 313
in the hospital and duration of the treatment are considered.

The injuries sustained by the petitioner have been
described in the MLC Ex.PW1/16 as follows:

"cut injury on the scalp 7 cm in size, stitches
applied. Advised X-ray skull".

Further, as per X-ray report dated 02.08.2007 of
Sidharth Medi Services it was observed as under:

"Wedging of T8 vertebrae is seen suggestive
of fracture T8 Psoas shadows are normal".

It may be noticed that though doctor has not been
examined to prove the nature of injuries but the medical
documents relied by the petitioner reflect suggestive fracture of
T8 vertebrae as observed above. It also needs to be considered
that the petitioner was under immense trauma due to loss of his
wife and daughter and his son had also suffered grievous
injuries, who had to be looked after. Considering the nature of
injuries and the treatment papers, the period for which the
petitioner may not have been able to work on account of injuries
sustained by him may be assumed as four months.

Since no cogent evidence has been led regarding the
income of the petitioner, the same may be assessed on notional
basis as notified by the Government of NCT of Delhi @
Rs.3,894/-per month for a skilled worker since the petitioner
was running a photo studio.

Petitioner is accordingly awarded a sum of

Page No.143 of 313
Rs.15,576/- (Rs.3,894/- X 04 months) towards loss of income on
account of injuries sustained in the accident.

86. Pain and suffering
Considering the nature of injuries suffered by
petitioner, he is awarded compensation of Rs.40,000/- (Rupees
Forty Thousand only) towards pain and suffering.

87. Medicines and Medical Treatment
Counsel for petitioner contended that an amount of
Rs.969/- has been claimed towards the medical bills/treatment
by the petitoiner which has not been disputed on behalf of
insurance company.

Accordingly, petitioner is awarded a sum of Rs.969/-
towards medical bills/treatment.

88. Conveyance & Special Diet
Though no conveyance bills have been filed on
record by the petitioner but it can be presumed that petitioner
must have spent some amount during the period of treatment as
well as on account of being shifted from District Kangra to
Delhi. In view of above, an amount of Rs.15,000/- (Rupees
Fifteen Thousand Only) is awarded towards conveyance.

Petitioner is further awarded an amount of
Rs.15,000/- (Rupees Fifteen Thousand Only) towards special
diet.

Page No.144 of 313
89. Attendant Charges
Hon'ble High Court of Delhi in DTC V/s Lalit AIR
1981 Delhi 558 held that the victim is entitled to compensation
even if no attendant is hired as some family member renders
gratuitous services.

I am of the considered view that even if the
gratuitous services were rendered by some or the other family
members, the claimant cannot be deprived of its benefit on the
gain of the tortfeasor. The period of active treatment wherein
the petitioner must have required the care and services on
account of suggestive fracture suffered of T8 vertebrae has to be
assumed for a period of four months. Considering the nature of
injuries and period of treatment, compensation of Rs.12,000/- is
awarded in lump-sum towards the attendant charges/gratuitous
services rendered by the family members (i.e. Rs.3,000/- X 4
months).

90. As discussed above, the overall compensation is
tabulated as under:

Loss of income Rs.15,576/-
Pain and suffering Rs.40,000/-
Special Diet Rs.15,000/-
conveyance Rs.15,000/-
Medical Bills Rs.969/-
Attendant Charges Rs.12,000/-

Page No.145 of 313
___________
Total Rs.98,545/-
________________
(Rupees Ninety Eight Thous and Five Hundred and Forty Five Only)

Petitioner shall be further entitled to interest @ 9%
from the date of filing of claim petition i..e. 16.08.2007 till
realization.

91. On realization, 40% of the compensation amount
shall be released to the petitioner while the remaining amount
along with proportionate up-to-date interest shall be kept in
fixed deposit in the name of petitioner with a nationalized
bank for a period of three years (03 years) without the facility
of advance, loan or premature withdrawal with release of
quarterly periodical interest in his account.

***************************************

92. CASE-M

Suit No.323/11
Unique Case ID No.02401C-1465122008

Surinder Nijhawan, guardian/father of
Master Akshay
Versus
Raj Singh @ Nasir Ali & Ors.

In brief, Master Akshay (a student) aged about 09
years was travelling in bus no.DL 1PC 7676 along with his
parents and sister Baby Dolly on a pilgrimage since 17.06.2007

Page No.146 of 313
and received grievous injuries in the accident on 20.06.2007.
Mother of petitioner namely (Smt. Barkha Nijhawan) and his
sister (Baby Dolly) suffered fatal injuries in the accident while
his father Shri Surinder Nijhawan sustained severe injuries.
Master Akshay was admitted at Dr.Rajender Prasad Government
College Hospital, Tanda, District Kangra, HP on 20.06.2016
after the accident and was thereafter shifted to PGI Chandigarh
on the same day considering the grievous nature of injuries.
Thereafter, he was treated at Apollo Hospital, Delhi. It is further
the case of petitioner that a sum of Rs.2,00,000/- was incurred
till filing of petition and the studies of Master Akshay were also
adversely affected due to injuries suffered in the accident.
Compensation is accordingly claimed for sum of Rs.10,00,000/-.

93. On the pleadings of the parties, following issues were
framed for consideration vide order dated 07.04.2008 by ld.
Predecessor:-

(i) Whether the petitioner had sustained
injuries on 20.06.2007 at about 11:00PM at
Kentchi More, Police Stattion Dharmshala, HP
due to rash and negligent driving of respondent
no.1 while driving vehicle No.DL 1 PC 7676?

(ii) Whether the petitioner is entitled to any
compensation? If so to what amount and from
whom?

Page No.147 of 313
(iii) Relief.

94. In support of the claim petition common evidence of
Surender Nijhwan was led as PW1 as placed in Suit No.324/11.
He testified in respect of the accidental injuries received by him
(in Suit No.324/11), injuries received by his son Master Akshay
(in present Suit No.323/11), fatal injuries received by his
daughter Baby Dolly (in Suit No.325/11) and fatal injuries
received by his wife Smt. Barkha Nijhawan (in Suit No.322/11).

PW1 Surender Nijhawan testified that he had filed
separate petitions in respect of death of his wife Late Smt.
Barkha Nijhawan, daughter Late Baby Dolly and in respect of
injuries suffered by him and his son Master Akshay. He further
testified that on 20.06.2007 they were travelling in bus no.DL 1
PC 7676 on pilgrimage in Himachal Pradesh since 17.06.2007.
The bus was driven by respondent no.1 at a high speed in a rash
and negligent manner in hilly area despite being warned by the
passengers. Consequent to the accident Barkha Nijhwan and
Baby Dolly suffered fatal injures while he along with Master
Akshay suffered grievous injuries.

He further testified that Barkha Nijhwan aged about
35 years was self employed and earning about Rs.6,000/- per
month as she was running lady boutique cum parlor at 122,
Subhash Nagar, Delhi.

He further testified that deceased Baby Dolly was a
good student and used to attain good percentage of marks.

He further testified that Master Akshay suffered

Page No.148 of 313
grievous injuries in the accident and after being initially taken to
RPGMC Hospital, Tanda, District Kangra on 20.06.2007 was
shifted to PGI, Chandigarh and discharged on 29.06.2007.
Further he was under treatment at Appollo Hospital as his left
side was paralysed.

He further testified that PW1 also sustained severe
injuries and was discharged on 22.06.2007 from Dr.RPGMC
Hospital to perform last rites of his wife and daughter. Further
he was proprietor of Neelam Digital Photo Studio and earning
about Rs.10,000/- per month.

He further relied upon documents Ex.PW1/1 to
PW1/17 filed along with affidavit i.e. his medical bills
(Ex.PW1/1), prescriptions (Ex.PW1/2), Ration card
(Ex.PW1/3), burial receipt of both deceased (Ex.PW1/4), death
certificate of both deceased (Ex.PW1/5), education papers of
both deceased (Ex.PW1/6), medical bills of treatment of Master
Akshay (Ex.PW1/7-collectively), prescription and treatment
record and hospital record of Master Akshay (Ex.PW1/8), his
Election I-card and Election I-card of deceased Barkha
(Ex.PW/9), MLC of Akshay (Ex.PW1/10), MLC of deponent
(Ex.PW1/11), attested copy of FIR No.125/07 dated 21.06.2007.
PS Dharamshala, HP (Ex.PW1/12), postmortem report of Baby
Dolly (Ex.PW1/13), postmortem report of Barkha Nijhawan
(Ex.PW1/14), MLC of Barkha Nijhawan (Ex.PW1/15), attested
insurance policy, registration certificate, driving licence of
driver of bus (Ex.PW1/16) , MLC of Master Akshay
(Ex.PW1/17).

On cross-examination on behalf of respondent no.3

Page No.149 of 313
he deposed that tour was organised by Sh.Baldev Ahuja and
there were 23 adults and six children travelling in the bus. He
was sitting on the front side and awake at the time of accident.
He denied that the owner of the bus contrary to the terms of
permit was carrying more passengers than the capacity of the
bus. He further deposed that the bus was driven at a high speed
and the driver was warned by a passenger sitting ahead of them
to drive slowly. He had no other document except the Voter's
Card to show the age of his wife. Further he had not placed any
document to show income, profession as well as educational
qualification of his wife.

He further stated that he did not have any document
to show his employment and income.

95. Issue No. (ii)
Whether the petitioner is entitled to any
compensation? If so to what amount and from
whom?

It may be observed that for the purpose of
assessment of compensation, the nature of injury, the parts of
body wherein the injury was sustained, surgery if any
undertaken, confinement in the hospital and duration of the

Page No.150 of 313
treatment are considered.

The injuries sustained by Master Akshay have been
described in the MLC Ex.PW1/17 as follows:

"crush injury on right side of scalp 5 X 5 cm and
lacerated wound on left forearm % X 6 cm in size".

Master Akshay was further referred to PGI,
Chandigarh wherein the discharge summary Ex.PW1/8 reflects
that he was admitted on 24.06.2007 and discharged on
29.06.2007 from Department of Neurosurgery. The final
diagnosis further reflects bifrontal small contusion with # frontal
bone. The brief history and clinical findings also refer to #
clavicle. Master Akshay also appears to have further undergone
treatment as a follow-up case at Brain and Spine Clinic, Kirti
Nagar, New Delhi and prescription upto 23.06.2009 have been
filed on record.

However, it may be noticed that neither any doctor
has been examined nor there is any evidence regarding any
permanent disability suffered by Master Akshay. Considering
the grievous nature of injuries suffered by Master Akshay
wherein the follow-up treatment has continued for considerable
period, he is awarded compensation of Rs.1,00,000/- (Rupees
One Lac only) towards pain and suffering and injuries sustained
in the accident.

Medicines and Medical Treatment
Counsel for petitioner contended that an amount of
Rs.18,708.25 has been claimed towards the medical

Page No.151 of 313
bills/treatment by the petitoiner which has not been disputed on
behalf of insurance company.

Accordingly, petitioner is awarded a sum of
Rs.18,708/- towards medical bills/treatment.

Conveyance & Special Diet
Though no conveyance bills have not been filed on
record by the petitioner but it can be presumed that petitioner
must have spent some amount during the period of treatment as
he was shifted to PGI, Chandigarh from District Kangra and
thereafter shifted to Delhi. In view of above, an amount of
Rs.20,000/- (Rupees Twenty Thousand Only) is awarded
towards conveyance for the period of treatment.

Petitioner is further awarded an amount of
Rs.20,000/- (Rupees Twenty Thousand Only) towards special
diet considering the period of treatment and nature of injuries.

Attendant Charges
Hon'ble High Court of Delhi in DTC V/s Lalit AIR
1981 Delhi 558 held that the victim is entitled to compensation
even if no attendant is hired as some family member renders
gratuitous services.

I am of the considered view that even if the
gratuitous services were rendered by some or the other family

Page No.152 of 313
members, the claimant cannot be deprived of its benefit on the
gain of the tortfeasor. The period of active treatment wherein
the petitioner must have required the continuous care and
services has to be assumed for a period of six months though the
petitioner undertook follow-up treatment till 2009. Considering
the nature of injuries, period of treatment and the fact that the
mother of petitioner had expired in the same accident and father
had also sustained injuries, the compensation of Rs.18,000/- is
awarded in lump-sum towards the attendant charges/gratuitous
services rendered by the family members (i.e. Rs.3,000/- X 6
months).

Loss of Academics
Though there is no specific evidence regarding loss
of academic year but definitely the studies of the petitioner had
been adversely affected due to extensive injuries sustained in the
accident. Petitioner is accordingly awarded a sum of
Rs.30,000/- for loss of studies.

96. As discussed above, the overall compensation is
tabulated as under:

Pain and suffering Rs.1,00,000/-
Special Diet Rs.20,000/-
conveyance Rs.20,000/-
Medical Bills Rs.18,708/-
Attendant Charges Rs.18,000/-
Loss of academics Rs.30,000/-
___________
Total Rs.2,06,708/-
_________________
(Rupees Two Lakh Six Thousand Seven Hundred and Eight Only)

Page No.153 of 313
The petitioners shall be further entitled to interest @
9% from the date of filing of claim petition i..e. 16.08.2007 till
realization.

97. On realization, considering the medical expenses
incurred by the father of injured, 30% of the compensation
amount shall be released to the father of the injured for the
benefit and welfare of the minor son and the remaining amount
along with proportionate up-to-date interest shall be kept in
fixed deposit in the name of petitioner with a nationalized
bank till he attains the age of 21 years without the facility of
advance, loan or premature withdrawal with release of
quarterly periodical interest in the bank account of Surinder
Nijhawan (father) for the benefit of minor.

***********************************

98. CASE-N

Suit No.280/11
Unique Case ID No.02401C-1465202008

Satish Kumar Nijhawan, guardian/father of
Baby Bhawna (minor)
Versus
Raj Singh @ Nasir Ali & Ors.

In brief, Baby Bhawna (a student )aged about 13
years was travelling in bus no.DL 1PC 7676 along with her
uncle on a pilgrimage since 17.06.2007 and received grievous

Page No.154 of 313
injuries in the accident on 20.06.2007. She was admitted at
Dr.Rajender Prasad Government College Hospital, Tanda,
District Kangra, HP on 20.06.2016 after the accident and was
thereafter shifted to PGI Chandigarh on the same day
considering the grievous nature of injuries and was discharged
on 27.06.2007. It is further claimed that thereafter petitioner
was treated at Delhi and a sum of Rs.1,00,000/- had been
incurred till filing of petition. The studies of the petitioner are
also stated to have been adversely affected due to injuries
suffered in the accident and compensation is claimed for sum of
Rs.10,00,000/-.

99. On the pleadings of the parties, following issues were
framed for consideration vide order dated 07.04.2008 by ld.
Predecessor:-

(i) Whether the petitioner had sustained injuries
on 20.06.2007 at about 11:00PM, Kentchi More,
Police Station Dharmshala, HP due to rash and
negligent driving of respondent no.1 while driving
vehicle no.DL 1 PC 7676?

(ii) Whether the petitioner is entitled to any
compensation? If so to what amount and from
whom?

(iii) Relief.

100. In support of the claim petition, PW1 Satish Kumar

Page No.155 of 313
was examined.

PW1 Satish Kumar testified on the lines of claim
petition and proved medical bills (Ex.PW1/1-collectively 17
pages), original medical treatment record (Ex.PW1/2-
collectively 15 sheets), copy of further medical treatment record
(Mark-A and Mark-B), copy of Ration Card (Ex.PW1/3),
attested copy of MLC (Ex.PW1/4) and attested copy of FIR
(Ex.PW1/5).

On cross-examination, PW1 deposed that his
daughter was travelling with his elder brother and was aged
about 12 years at the time of accident.

101. Issue No. (ii)
Whether the petitioner is entitled to any
compensation? If so to what amount and from
whom?

It may be observed that for the purpose of
assessment of compensation, the nature of injury, the parts of
body wherein the injury was sustained, surgery if any
undertaken, confinement in the hospital and duration of the
treatment are considered.

The injuries sustained by the petitioner have been
described in the MLC Ex.PW1/4 as follows:

"# right femur.
# left femur
# Tibia"
Baby Bhawna was further referred to PGI,

Page No.156 of 313
Chandigarh wherein the discharge summary collectively Mark-
B reflects that she was admitted on 21.06.2007 and discharged
on 27.06.2007. PW1 also placed the treatment documents with
regard to further medical treatment at Delhi till November 2008.

It may be noticed that neither any doctor has been
examined nor there is any evidence regarding any permanent
disability suffered by Baby Bhawna. Considering the grievous
nature of injuries suffered by Baby Bhawna wherein the follow-
up treatment has continued for considerable period petitioner is
awarded compensation of Rs.1,00,000/- (Rupees One Lac only)
towards pain and suffering and injuries sustained in the accident.

Medicines and Medical Treatment
Counsel for petitioner contended that an amount of
Rs.29,660/- has been claimed towards the medical
bills/treatment by the petitoiner which has not been disputed on
behalf of insurance company.

Accordingly, petitioner is awarded a sum of
Rs.29,660/- towards medical bills/treatment.

Conveyance & Special Diet
Though conveyance bills have not been filed on
record by the petitioner but it can be presumed that petitioner
must have spent some amount during the period of treatment as
she was shifted to PGI, Chandigarh from District Kangra and
thereafter to Delhi. In view of above, an amount of Rs.20,000/-
(Rupees Fifteen Thousand Only) is awarded towards
conveyance for the period of treatment.

Page No.157 of 313
Petitioner is further awarded an amount of
Rs.20,000/- (Rupees Twenty Thousand Only) towards special
diet considering the period of treatment and nature of injuries.

I am of the considered view that even if the
gratuitous services were rendered by some or the other family
members, the claimant cannot be deprived of its benefit on the
gain of the tortfeasor. The period of active treatment wherein
the petitioner must have required the continuous care and
services has to be assumed for a period of one year though the
petitioner remained under some treatment on follow-up till
November 2008. Considering the nature of injuries, period of
treatment, the compensation of Rs.36,000/- is awarded in lump-
sum towards the attendant charges/gratuitous services rendered
by the family members (i.e. Rs.3,000/- X 12 months).

Loss of Academics
Though there is no specific evidence regarding loss
of academic year but definitely the studies of the petitioner have

Page No.158 of 313
been adversely affected due to extensive injuries sustained in the
accident. Petitioner is accordingly awarded a sum of
Rs.30,000/- for loss of studies.

102. As discussed above, the overall compensation is
tabulated as under:

Pain and suffering Rs.1,00,000/-
Special Diet Rs.20,000/-
conveyance Rs.20,000/-
Medical Bills Rs.29,660/-
Attendant Charges Rs.36,000/-
Loss of academics Rs.30,000/-
___________
Total Rs.2,35,660/-
________________
(Rupees Two Lakh Thirty Five Thousand Six Hundred & Sixty Only)

The petitioner shall be further entitled to interest @
9% from the date of filing of claim petition i..e. 16.08.2007 till
realization.

103. On realization, considering the medical expenses
incurred by the father of injured, 25% of the compensation
amount shall be released to the father of injured for the benefit
and welfare of Baby Bhawna and the remaining amount along
with proportionate up-to-date interest shall be kept in fixed
deposit in the name of Baby Bhawna with a nationalized
bank for a period of three years (03 years) without the facility
of advance, loan or premature withdrawal with release of
quarterly periodical interest in her account as she must have

Page No.159 of 313
presently attained the age of majority.

*********************************

104. CASE-O

Suit No.190/11
Unique Case ID No.02401C-0819832007

Amol Bajaj S/o Rajesh Bajaj
Versus
Raj Singh @ Nasir Ali & Ors.

As per case of petitioner, he was travelling in bus
no.DL 1PC 7676 along with other passengers on a pilgrimage
tour in Himachal Pradesh since 17.06.2007 and received injuries
in the accident on 20.06.2007. Petitioner was admitted at Dr.
Rajinder Prasad Medical College at Tanda District Kangra after
the accident and discharged on the same day. It is further the
case of petitioner that he sustained severe injuries as stated in
the petition and spent a sum of Rs.40,000/- on his treatment.
Compensation is accordingly claimed for Rs.5,00,000/-.

105. On the pleadings of the parties, following issues were
framed for consideration vide order dated 09.01.2008 by ld.
Predecessor :-

(i) Whether the petitioner Baldev Raj, Sanjeev
Gulati, Sita Ram and Jatin Ahuja sustained
fatal injuries. Sh.Baldev Raj Ahuja, Master
Sunny Ahuja, Smt. Saroj Ahuja, Sh.Hari Om

Page No.160 of 313
Mahna, Sh.Atul Kumar Sharma, Baby Astha
Mahna, Smt.Shalu Mahna, Sh.Amol Bajaj,
Smt.Bharti Bajaj and Smt. Anu Gulati
sustained injuries as put forth in the petitions
and medical records of the case took place on
account of rash and negligent driving of
Respondent No.1 of bus bearing registration
no.DL 1 PC 7676?

(ii) To what amount of compensation the
claimants are entitled to and from whom?

(iii) Relief.

106. Issue No. (ii)
To what amount of compensation the claimants
are entitled to and from whom?

Counsel for petitioner admits that evidence of the
petitioner has not been led but prays that compensation be
assessed on the basis of injuries as reflected in the MLC as
placed on record since the fact that the petitioner was travelling
in the ill-fated bus is not disputed.

107. I am of the considered view that the fact that
petitioner was travelling in the bus at the time of accident stands
corroborated in the light of evidence led in the connected cases
on record and common evidence of PW2 ASI Mohinder Singh

Page No.161 of 313
who proved the record of criminal proceedings arising out of the
accident. Further, the fact that petitioner received injures in the
accident cannot be disputed in view of the attested copy of MLC
filed on record. In the facts and circumstances, it may not be
appropriate to dismiss the claim petition for want of
examination of petitioner but the compensation be assessed
considering the nature of injuries as reflected in the MLC.

108. It may be observed that for the purpose of assessment
of compensation, the nature of injury, the parts of body wherein
the injury was sustained, surgery if any undertaken, confinement
in the hospital and duration of the treatment are considered.

Admittedly, neither the medical bills towards the
expenses if any incurred by the petitioner have been proved nor
the petitioner entered the witness box. As per MLC prepared at
Dr. Rajender Prasad Government Hospital and associated
hospital, Kangara the petitioner had complained of pain in lower
back but no further report on the basis of advised X-rays has
been placed/proved on record. Petitioner was not admitted as an
indoor patient and was discharged on the same day. However,
judicial notice can be taken of the fact that the petitioner must
have remained under trauma and suffered pain and suffering as a
result of falling of the bus in the valley. Also expenses must
have been incurred on conveyance from Kangra to Delhi.
Considering the facts and circumstances petitioner is awarded
compensation of Rs.15,000/- towards pain and suffering and
injuries sustained in the accident. Also, a sum of Rs.5,000/- is
awarded towards diet and conveyance.

Page No.162 of 313
109. As discussed above, the overall compensation is
tabulated as under:

Loss of wages -NIL-
Pain and suffering Rs.15,000/-
Diet & conveyance Rs.5,000/-
Medical Bills -NIL-
___________
Total Rs.20,000/-
________________
(Rupees Twenty Thousand Only)

The claimant/petitioner is also entitled to interest @
9% p.a. from the date of filing of claim petition i.e. w.e.f.
16.08.2007 till realization.

110. On realization, entire compensation amount along
with up-to-date interest shall be released to the petitioner.

***********************************

111. CASE-P

Suit No.191/11
Unique Case ID No.02401C-0815992007

Smt. Bharti Bajaj W/o Rajesh Bajaj,
Versus
Raj Singh @ Nasir Ali & Ors.

As per case of petitioner, she was travelling in bus
no.DL 1PC 7676 along with other passengers on a pilgrimage
tour in Himachal Pradesh since 17.06.2007 and received injuries

Page No.163 of 313
in the accident on 20.06.2007. Petitioner was admitted at Dr.
Rajinder Prasad Medical College, at Tanda District Kangra after
the accident. It is further the case of petitioner that the she
sustained severe injuries as stated in the petition and spent a sum
of Rs.40,000/- on her treatment and an expense of Rs.4,000/-
was incurred for employing a maid servant. Compensation is
accordingly claimed for Rs.5,00,000/-.

112. On the pleadings of the parties, following issues were
framed for consideration vide order dated 09.01.2008.

(i) Whether the petitioner Baldev Raj, Sanjeev Gulati,
Sita Ram and Jatin Ahuja sustained fatal injuries.
Sh.Baldev Raj Ahuja, Master Sunny Ahuja, Smt. Saroj
Ahuja, Sh.Hari Om Mahna, Sh.Atul Kumar Sharma,
Baby Astha Mahna, Smt.Shalu Mahna, Sh.Amol
Bajaj, Smt.Bharti Bajaj and Smt. Anu Gulati
sustained injuries as put forth in the petitions and
medical records of the case took place on account of
rash and negligent driving of Respondent No.1 of bus
bearing registration no.DL 1 PC 7676?

(ii) To what amount of compensation the claimants are
entitled to and from whom?

(iii) Relief.

113. Issue No. (ii)
To what amount of compensation the claimants

Page No.164 of 313
are entitled to and from whom?

I am of the considered view that the fact that
petitioner was travelling in the bus at the time of accident stands
corroborated in the light of evidence led in the connected cases
on record and common evidence of PW2 ASI Mohinder Singh
who proved the record of criminal proceedings arising out of the
accident. Further, the fact that petitioner received simple injures
in the accident cannot be disputed in view of the attested copy of
MLC filed on record. In the facts and circumstances, it may not
be appropriate to dismiss the claim petition for want of
examination of petitioner but the compensation can be assessed
considering the nature of injuries as reflected in the MLC since
the same is not disputed by respondents.

It may be observed that for the purpose of
assessment of compensation, the nature of injury, the parts of
body wherein the injury was sustained, surgery if any
undertaken, confinement in the hospital and duration of the
treatment are considered.

Page No.165 of 313
Hospital, Kangara the petitioner was admitted at Ortho Ward
since she was unable to move due to several back ache but no
external injury was seen. It further appears as per the photocopy
of documents placed on record that the petitioner got herself
examined at Dr.RML Hospital, New Delhi wherein no bony
injury was observed after X-Ray of pelvis. Judicial notice can
be taken of the fact that the petitioner must have remained under
trauma and suffered pain and suffering as a result of falling of
the bus in the valley. Also, expenses must have separately been
incurred on conveyance from Kangra to Delhi and during course
of treatment. Considering the facts and circumstances petitioner
is awarded compensation of Rs.15,000/- towards pain and
suffering and injuries sustained in the accident. Also, a sum of
Rs.5,000/- is awarded towards diet and conveyance.

The petitioner has failed to enter the witness box and
prove any other expenses/medical bills and as such no expenses
towards medical bills/treatment are awarded.

114. As discussed above, the overall compensation is
tabulated as under:

Loss of wages -NIL-
Pain and suffering Rs.15,000/-
Diet & conveyance Rs.5,000/-
Medical Bills -NIL-
___________
Total Rs.20,000/-
________________
(Rupees Twenty Thousand Only)

The claimant/petitioner is also entitled to interest @
9% p.a. from the date of filing of claim petition i.e. w.e.f.

Page No.166 of 313
16.08.2007 till realization.

115. On realization, entire compensation amount along
with up-to-date interest shall be released to the petitioner.

********************************

116. CASE-Q

Suit No.194/11
Unique Case ID No.02401C-0820642007

Sunny Ahuja @ Sahil Ahuja
(Petitioner being minor through his natural guardian/next friend/
father Sh.Suraj Ahuja)
Versus
Raj Singh @ Nasir Ali & Ors.

In brief, petitioner Sunny Ahuja @ Sahil was
travelling in bus no.DL 1PC 7676 along with other passengers
on a pilgrimage tour in Himachal Pradesh since 17.06.2007 and
received injuries in the accident on 20.06.2007. Petitioner was
admitted at Dr. Rajinder Prasad Medical College at Tanda
District Kangra after the accident and discharged on the same
day. It is further claimed that petitioner sustained severe injuries
as stated in the petition and spent a sum of Rs.10,000/- on his
treatment. Compensation is claimed for Rs.5,00,000/-.

117. Vide order dated 09.01.2008 following consolidated
issues were framed by the ld. Predecessor :

(i) Whether the petitioner Baldev Raj, Sanjeev
Gulati, Sita Ram and Jatin Ahuja sustained

Page No.167 of 313
fatal injuries. Sh.Baldev Raj Ahuja, Master
Sunny Ahuja, Smt. Saroj Ahuja, Sh.Hari Om
Mahna, Sh.Atul Kumar Sharma, Baby Astha
Mahna, Smt.Shalu Mahna, Sh.Amol Bajaj,
Smt.Bharti Bajaj and Smt. Anu Gulati
sustained injuries as put forth in the petitions
and medical records of the case took place on
account of rash and negligent driving of
Respondent No.1 of bus bearing registration
no.DL 1 PC 7676?

(ii) To what amount of compensation the
claimants are entitled to and from whom?
(iii) Relief.

118. Issue No. (ii)
To what amount of compensation the
claimants are entitled to and from whom?

119. I am of the considered view that the fact that
petitioner was travelling in the bus at the time of accident stands
corroborated in the light of evidence led in the connected cases

Page No.168 of 313
on record and common evidence of PW2 ASI Mohinder Singh
who proved the record of criminal proceedings arising out of the
accident. Further, the fact that petitioner received simple injures
in the accident cannot be disputed in view of the attested copy of
MLC filed on record. In the facts and circumstances, it may not
be appropriate to dismiss the claim petition for want of
examination of petitioner but the compensation can be assessed
considering the nature of injuries as reflected in the MLC since
the same is not disputed by respondents.

Admittedly, neither the medical bills towards the
expenses, if any, incurred by the petitioner have been proved nor
the petitioner entered the witness box. As per MLC prepared at
Dr. Rajender Prasad Government Hospital and Associated
Hospital, Kangara which is not disputed, the petitioner had
sustained abrasion below right elbow about 3X4 cm in size, red
in colour. Further, as per the MLC the injury over right elbow
was simple in nature and no fracture was detected. Petitioner
was not admitted as an indoor patient and was discharged on the
same day. Judicial notice can be taken of the fact that the
petitioner must have remained under trauma and suffered pain
and suffering as a result of falling of the bus in the valley. Also
expenses must have been incurred on conveyance from Kangra
to Delhi. Considering the facts and circumstances petitioner is
awarded compensation of Rs.15,000/- towards pain and

Page No.169 of 313
suffering and injuries sustained in the accident. Also, a sum of
Rs.5,000/- is awarded towards diet, and conveyance.

120. As discussed above, the overall compensation is
tabulated as under:

Loss of wages -NIL-
Pain and suffering Rs.15,000/-
Diet & conveyance Rs.5,000/-
Medical Bills -NIL-
___________
Total Rs.20,000/-
________________
(Rupees Twenty Thousand Only)

The claimant/petitioner is also entitled to interest @
9% p.a. from the date of filing of claim petition i.e. w.e.f.
16.08.2007 till realization.

121. On realization, entire compensation amount along
with up-to-date interest shall be released to the petitioner as he
was a minor aged about 16 years at the time of filing of petition
but has since attained majority.

***********************************

122. CASE-R

Suit No.196/11
Unique Case ID No.02401C-0820012007

Saroj Ahuja W/o Sh.Suraj Ahuja
Versus
Raj Singh @ Nasir Ali & Ors.

Page No.170 of 313
As per case of petitioner, she was travelling in bus
no.DL 1PC 7676 along with other passengers on a pilgrimage
tour in Himachal Pradesh since 17.06.2007 and received injuries
in the accident on 20.06.2007. Petitioner was admitted at Dr.
Rajinder Prasad Medical College, at Tanda District Kangra after
the accident and discharged on the same day. Further,
subsequent treatment continued at Bhatia Medical Centre, Delhi.
It is further the case of the petitioner that she was self employed
as tutor and earning about Rs.5,000/- per month and spent a sum
of Rs.20,000/- on her treatment. Compensation is accordingly
claimed for Rs.5,00,000/-.

123. Vide order dated 09.01.2008 following
consolidated issues were framed by the ld. Predecessor:

(i) Whether the petitioner Baldev Raj, Sanjeev
Gulati, Sita Ram and Jatin Ahuja sustained
fatal injuries. Sh.Baldev Raj Ahuja, Master
Sunny Ahuja, Smt. Saroj Ahuja, Sh.Hari Om
Mahna, Sh.Atul Kumar Sharma, Baby Astha
Mahna, Smt.Shalu Mahna, Sh.Amol Bajaj,
Smt.Bharti Bajaj and Smt. Anu Gulati
sustained injuries as put forth in the petitions
and medical records of the case took place on
account of rash and negligent driving of
Respondent No.1 of bus bearing registration
no. DL 1PC 7676?

Page No.171 of 313
(ii) To what amount of compensation the
claimants are entitled to and from whom?

(iii) Relief.

124. In support of the claim, Smt. Saroj Ahuja was
examined as PW1.

PW1 Smt. Saroj Ahuja testified on the lines of the
claim petition and stated that the accident had been caused due
to rash and negligent driving of Respondent No.1. She further
testified regarding the injuries suffered in the accident and stated
that a maid servant was engaged at Rs.1,000/- per month since
July, 2007. She further proved the original medical bills
(Ex.PW1/1 colly 2 sheets), medical record (Ex.PW1/2 colly 5
pages), her election I-card (Ex.PW1/3) and copy of MLC
(Ex.PW1/4).

On cross-examination, PW1 stated that she was
conscious at the time of accident but did not have any ticket to
prove that she was travelling in the offending bus. She further
deposed that she is a housewife and the wound on her neck had
not healed.

125. Issue No. (ii)
Whether the petitioner is entitled to any
compensation? If so to what amount and from
whom?

It may be observed that for the purpose of assessment

Page No.172 of 313
of compensation, the nature of injury, the parts of body wherein
the injury was sustained, surgery if any undertaken, confinement
in the hospital and duration of the treatment are considered.

The injuries sustained by the petitioner have been
described in the MLC Ex.PW1/4 as follows:

"1. cut injury on left side of forehead,
superfacial. No bleeding,.
2.Bruises on left shoulder.
3. Swelling right ankle joint. Advised X-Ray
right ankle.
The final opinion was reserved to be given after
surgical record summary & radiologist opinion
is received."

It may be noticed that doctor has not been examined
to prove the nature of injuries and the treatment record does not
reflect any grievous injury. Judicial notice can be taken of the
fact that the petitioner must have remained under trauma and
suffered pain and suffering as a result of falling of the bus in the
valley. Also expenses must have separately been incurred on
conveyance from Kangra to Delhi. Considering the facts and
circumstances petitioner is awarded compensation of
Rs.15,000/- towards pain and suffering and injuries sustained in
the accident. Also, a sum of Rs.5,000/- is awarded towards diet
and conveyance.

Petitioner is also awarded a sum of Rs.3,860/-
towards medical treatment as per the bills placed on record,
which have not been disputed on behalf of the respondents. The

Page No.173 of 313
total amount is rounded off to Rs.4,000/- for purpose of
compensation.

However, I am not inclined to separately award
attendant charges since it has not been proved on record that the
petitioner suffered any grievous injuries.

126. As discussed above, the overall compensation is
tabulated as under:

Loss of wages -NIL-
Pain and suffering Rs.15,000/-
Diet & conveyance Rs.5,000/-
Medical Bills Rs.3,860/-
(rounded off to Rs.4,000/-)
___________
TOTAL Rs.24,000/-
____________
(Rupees Twenty Four Thousand Only)

The claimant/petitioner is also entitled to interest @
9% p.a. from the date of filing of claim petition i.e. w.e.f.
16.08.2007 till realization.

127. On realization, entire compensation amount along
with up-to-date interest shall be released to the petitioner.

***********************************

128. CASE-S

Suit No.195/11
Unique Case ID No.02401C-0820982007

1. Smt. Bimla Ahuja W/o Late Sh.Baldev Raj Ahuja (Wife)

Page No.174 of 313

2. Smt. Monika Khurana W/o Sh.Naveen Khurana (Daughter)
Versus
Raj Singh @ Nasir Ali & Ors.

In brief, Smt. Bimla Ahuja along with her husband
Late Sh.Baldev Raj Ahuja and son Late Sh.Jatin Ahuja were
travelling in bus no.DL 1PC 7676 along with other passengers
on a pilgrimage since 17.06.2007. Sh.Jatin Ahuja as well as
Baldev Raj Ahuja received fatal injuries in the accident while
Bimla Ahuja suffered grievous injuries. Suit No.195/11 has
been preferred claiming compensation in respect of death of
Late Sh.Baldev Raj Ahuja, Suit No.193/11 in respect of death of
Late Sh.Jatin Ahuja and Suit No.192/11 in respect of injuries
sustained by Smt. Bimla Ahuja.

It is further the case of claimants that Late Sh.Baldev
Raj Ahuja was employed as Assistant at Central Social Welfare
Board, Government of India at the relevant time while Smt.
Bimla Ahuja was employed as UDC at PWD. Further, Sh.Jatin
Ahuja (son of Smt. Bimla Ahuja and Baldev Raj Ahuja) aged
about 23 years was self-employed and earning about Rs.6,000/-
per month by running a juice corner shop at 57, Baird Lane
Area. Compensation has been claimed for Rs.40,00,000/- in
respect of death of Late Sh.Baldev Raj Ahuja; Rs.20,00,000/- in
respect of death of Late Sh.Jatin Ahuja and Rs.5,00,000/- in
respect of injuries sustained by Bimla Ahuja.

129. Vide order dated 09.01.2008 the following issues
were framed by the ld. Predecessor in all the three Suits:

Page No.175 of 313
(i) Whether the petitioner Baldev Raj, Sanjeev
Gulati, Sita Ram and Jatin Ahuja sustained
fatal injuries. Sh.Baldev Raj Ahuja, Master
Sunny Ahuja, Smt. Saroj Ahuja, Sh.Hari Om
Mahna, Sh.Atul Kumar Sharma, Baby Astha
Mahna, Smt.Shalu Mahna, Sh.Amol Bajaj,
Smt.Bharti Bajaj and Smt. Anu Gulati
sustained injuries as put forth in the petitions
and medical records of the case took place on
account of rash and negligent driving of
Respondent No.1 of bus bearing registration
no.DL 1 PC 7676?

(ii) To what amount of compensation the
claimants are entitled to and from whom?

(iii) Relief.

130. Evidence of PW1 Smt. Bimla Ahuja as placed in Suit
No. 195/11 in respect of death of Late Sh.Baldev Raj Ahuja is
relied in all the three claim petitions i.e. 195/11, 192/11 and
193/11. Further statement of PW2 Sh.Joginder Singh Suri and
PW3 Sh.S.C.Ahuja has been placed in Suit No.195/11 to prove
the income/salary of Late Sh.Baldev Raj Ahuja, who was
employed as Assistant in Central Social Welfare Board. No
separate evidence has been led in Suit No.192/11 and 193/11.
The documents proved by PW1 Bimla Ahuja in her statement as
placed in Suit No.195/11 are filed in Suit No.192/11, 193/11 and

Page No.176 of 313
195/11. The same is recorded to avoid any confusion and ensure
the linkage of documents as placed in separate files by Ld.
Predecessor.

PW1 Smt.Bimla Ahuja testified on the lines of
claim petition and stated that she was complainant in FIR No.
195/07 dated 21.06.2007 PS: Dharamshala. She further proved
copy of her Ration Card (Ex.PW1/1), copy of Bank passbook of
deceased Baldev Raj Ahuja (Ex.PW1/2), original receipt
regarding funeral of Baldev Raj Ahuja (Ex.PW1/3), attested
copy of death certificate of Baldev Raj Ahuja (Ex.PW1/4), copy
of death certificate of her son Jatin Ahuja (Ex.PW1/5), copy of
pay slip of Baldev Raj Ahuja for the month of April 2007
(Ex.PW1/6), documents regarding education qualification of
Baldev Raj Ahuja (Ex.PW1/7), documents regarding educational
qualification of deceased Jatin Ahuja (Ex.PW1/8), copy of
Voter's I-card of Baldev Raj Ahuja (Ex.PW1/9), attested copy of
postmortem report of deceased Baldev Raj Ahuja (Ex.PW1/10-
tagged in Suit No.195/11), attested copy of pay slip of deceased
Baldev Raj for the month of May 2007 (Ex.PW1/11-tagged in
Suit No.195/11), attested copy of FIR (Ex.PW1/12-tagged in
Suit No.195/11), attested copy of postmortem report of
deceased Jatin Ahuja (Ex.PW1/13-tagged in Suit No.193/11),
attested copy of her MLC (Ex.PW1/14-tagged in Suit
No.192/11), her original medical treatment record (Ex.PW1/15-
colly./tagged in Suit No.192/11).

On cross-examination, PW1 deposed that she was
travelling along with her husband & son. Further the driver of
the bus was warned by several passengers to drive carefully as

Page No.177 of 313
he was driving the bus in negligent manner. She further deposed
that the bus had been hired by her husband but no individual
tickets were issued. She further stated that she and her husband
were Government employees and further denied the suggestion
that she was not financially dependent on her husband and son.

PW2 Joginder Singh Suri proved the
employment/salary of deceased Baldev Raj Ahuja who was a
permanent employee of Central Social Welfare Board under the
Ministry of Human and Child Development. He further proved
the attested copy of appointment letter of Baldev Raj Ahuja,
copies of increment orders, attested copies of pay bill register,
attested copy of arrears of 6th pay commission and pay certificate
from 01.01.2006 to 20.06.2007 (Ex.PW2/1-collectively 23
sheets). He further clarified that last drawn gross salary of
deceased for the moth of June 2007 was Rs.25,115/- calculated
on the basic salary of Rs.17,220/-.

On cross-examination he clarified that income tax
of the deceased was not deducted by the office since the salary
of the deceased did not come within the taxation limit.

PW3 Sh.S.C.Ahuja, Assistant, Central Social
Welfare Board proved the appointment letter in respect of
deceased Baldev Raj Ahuja, Assistant (Ex.PW3/1), increment
orders (Ex.PW2/2-collectively-16 sheets), pay bill register
9Ex.PW2/3), arrears of 6th pay commission (Ex.PW3/4), salary
certificate (Ex.PW3/5) and pay slip for the month of May-2007
(Ex.PW3/6).

Page No.178 of 313
On cross examination he clarified that during the
relevant period the salary was paid to the employees in the
company in cash but he had not brought the cash receipts since
the same were not summoned.

131. Issue No. (ii)
To what amount of compensation the
claimants are entitled to and from whom?

Counsel for petitioners contended that deceased Late
Sh.Baldev Raj Ahuja was working as Assistant in Central Social
Welfare Board and the last drawn salary for May-2007 was
Rs.25,115/- as per statement of PW2 Joginder Singh after the 6 th
pay commission. Further pay slip for the month of May-2007
reflects the total gross earning Rs.17,912/- since the
arrears/fixation of salary was made subsequently. As such it is
urged that for purpose of compensation the gross salary be taken
as Rs.25,115/- and also 30% be added toward future prospects.
It is further urged that the loss of dependency be calculated after
making deduction of 1/3rd towards personal expenses and
applying the relevant multiplier of 13.

In the present case, it may be noticed that Petitioner
No.2 Monika Khurana W/o Naveen Khurana who is stated to be
the daughter of deceased was married and as such she cannot be
considered as a dependent upon the deceased. It may also be
observed that the son of the deceased Late Sh.Jatin Ahuja who
expired in the same accident was also financially independent
since it is claimed that he was running a Juice Corner and

Page No.179 of 313
earning about Rs.6,000/- per month. The wife of the deceased
namely Smt. Bimla Ahuja is also employed as UDC with PWD
and was not financially dependent upon the deceased. In the
aforesaid circumstances, I am of the considered opinion that
the compensation has to be calculated for loss to estate and
not for loss of dependency as held in Dinesh Adhlak vs.
Pritam Singh & Ors. ILR (2010) V Delhi 463 (MAC Appeal
No.253/07 decided on 15.01.2010 by Hon'ble Mr. Justice J.R.
Midha).

In Dinesh Adhlak (supra), deceased (wife of the
petitioner) aged about 31 years was working as a teacher while
her husband aged 34 years was working as a teacher at Jesus and
Merry College and was not financially dependent upon the
deceased. It was held by the Hon'ble High Court that the
husband is entitled to compensation for loss to estate and not for
loss of dependency since he was not financially dependent upon
the deceased. It may also be appropriate to quote the relevant
principles as settled in A. Manavalagan vs. A. Krishnamurthy
& Ors. , 2005 ACJ 1992 by the Hon'ble Karnataka High Court as
also referred in Dinesh Adhlak (supra).

Page No.180 of 313
same in both cases".

" 20 (v)........Though the quantum of savings will vary
from person to person, there is a need to standardise the
quantum of savings for determining the loss to estate
(where the claimants are not dependents) in the absence
of specific evidence to the contrary. The quantum of
savings can be taken as one-third of the income of the
deceased where the spouses are having a common
establishment and one-fourth where the spouses are
having independent establishments. The above will
apply where the family consists of non-dependent
spouse/children/parents. Where the claimants are non-
dependent brothers/sisters claiming on behalf of the
estate, the savings can be taken as 15% of the income.
The above percentages, one of course, subject to any
specific evidence to the contrary led by the claimants."

132. In the light of aforesaid principles, the loss to estate
is assessed as under :

(a) Income of Deceased
The compensation is to be decided with the pay scale
applicable at the time of death and since the 6 th Pay Commission
had been implemented since 2006. The gross-salary of deceased
for purpose of assessment of compensation is taken as
Rs.25,115/- as proved by PW2.

(b) If addition in income towards future prospects is to
be made
Petitioners have claimed that addition towards future
prospects to the extent of 30% be made considering the fact that
deceased was aged about 50 years at the time of accident.

In Reshma Kumari & Ors. v. Madan Mohan & Anr. ,
(2013) 9 SCC 65 while approving the ratio with regard to future

Page No.181 of 313
prospects in Sarla Verma (Smt.) & Ors. (supra) and relying on
General Manager, Kerala State Road Transport Corporation,
Trivandrum v. Susamma Thomas (Mrs.) and Ors. (1994) 2
SCC 176; Sarla Dixit v. Balwant Yadav , ( 1996) 3 SCC 179 and
Abati Bezbaruah v. Dy. Director General, Geological Survey
of India & Anr. , 2003 (3) SCC 148, the Hon'ble Apex Court
held as under:-

"38. With regard to the addition to income for future
prospects, in Sarla Verma [Sarla Verma v. DTC,
(2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 :

(2009) 2 SCC (Cri) 1002], this Court has noted the
earlier decisions in Susamma Thomas [Kerala SRTC
v. Susamma Thomas, (1994) 2 SCC 176 : 1994 SCC
(Cri) 335], Sarla Dixit [(1996) 3 SCC 179] and Abati
Bezbaruah [Abati Bezbaruah v. Geological Survey of
India, (2003) 3 SCC 148 : 2003 SCC (Cri) 746] and
in para 24 of the Report held as under: (Sarla Verma
case [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009)
2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] , SCC p.
134):

"24. ... In view of the imponderables and uncertain-
ties, we are in favour of adopting as a rule of thumb,
an addition of 50% of actual salary to the actual
salary income of the deceased towards future
prospects, where the deceased had a permanent job
and was below 40 years. (Where the annual income is
in the taxable range, the words „actual salary‟
should be read as „actual salary less tax‟). The addi -
tion should be only 30% if the age of the deceased
was 40 to 50 years. There should be no addition,
where the age of the deceased is more than 50 years.
Though the evidence may indicate a different percent-
age of increase, it is necessary to standardise
the addition to avoid different yardsticks being ap-
plied or different methods of calculation being
adopted. Where the deceased was self-employed or
was on a fixed salary (without provision for annual
increments, etc.), the courts will usually take only the
actual income at the time of death. A departure there-

Page No.182 of 313
from should be made only in rare and exceptional
cases involving special circumstances."

39. The standardization of addition to income for fu-
ture prospects shall help in achieving certainty in ar-
riving at appropriate compensation. We approve the
method that an addition of 50% of actual salary be
made to the actual salary income of the deceased to-
wards future prospects where the deceased had a per-
manent job and was below 40 years and the addition
should be only 30% if the age of the deceased was 40
to 50 years and no addition should be made where the
age of the deceased is more than 50 years. Where the
annual income is in the taxable range, the actual
salary shall mean actual salary less tax. In the cases
where the deceased was self-employed or was on a
fixed salary without provision for annual incre-
ments, the actual income at the time of death without
any addition to income for future prospects will be
appropriate. A departure from the above principle can
only be justified in extraordinary circumstances and
very exceptional cases."

In the present case, the date of birth of deceased is
11.03.1957 as per the matriculation certificate (Ex.PW1/7-
collectively). As such on the date of accident deceased was aged
about 50 years and 03 months.

Having regard to the dicta in Sarla Varma 's case
(supra) since the deceased was aged about more than 50 years,
15% of the salary is to be added towards future prospects for
computation of income of deceased.

(c) As held in Dinesh Adhlak vs. Pritam Singh & Ors.
(supra) since the deceased and petitioner no.1 were having a
common establishment, therefore, the savings of the
deceased have to be taken as 1/3 rd of his income. The
petitioner shall be accordingly entitled to 1/3 rd of the income

Page No.183 of 313
of the deceased as loss of estate.

(d) Selection of multiplier:

Since the deceased was aged about 50 years & 03
months on the date of accident, as per per Sarla Verma (Smt.)
& Ors. vs. Delhi Transport Corporation & Anr. (2009) 6 SCC
121, multiplier of 11 is to be adopted for the purpose of
assessment of compensation.

(e) Loss of Estate
In the light of aforesaid facts, loss of estate as 1/3 rd
of the income of the deceased and applying the multiplier of 11
is computed as Rs.12,70,819/- [Rs.25,115/- (pay) + 15% (future
prospect) X 12 (months) X 11 (multiplier) X 1/3rd].

133. Compensation under non-pecuniary heads:

Page No.184 of 313
Apex Court in Municipal Corporation of Delhi v. Association
of Victims of Uphaar Tragedy , 2012 ACJ 48 (SC).
Considering the facts and circumstances, petitioners
are entitled to Rs.1 lakh towards loss of love and affection,
Rs.1,00,000/- towards loss of consortium to wife and
Rs.25,000/- are awarded towards funeral expenses.

134. The petitioners/claimants are accordingly entitled
to compensation computed as under:

Loss of estate Rs.12,70,819/-
Loss of Love and affection Rs.1,00,000/-
Loss of consortium Rs.1,00,000/-
Funeral Expenses Rs.25,000/-
________________
Total Rs.14,95,819/-
________________
(Rupees Fourteen Lacs Ninety Five Thousand Eight Hundred & Nineteen Only)

The claimants/petitioners are also entitled to interest
@ 9% p.a. from the date of filing of petition i.e. w.e.f.
16.08.2007 till realization.

The amount of interim award, if any, shall however
be deducted from the above amount, if the same has already
been paid to the petitioners.

135. It may be observed that though married daughters are
not strictly dependent on their father but are conventionally
awarded some percentage out of the compensation for the loss
of love & affection and the care & support which the father
customarily extends to his daughters throughout the lifetime.

Page No.185 of 313
Accordingly on realization, petitioner No.1 shall be entitled to
90% of the award amount and petitioner no.2, who is the
married daughter of the deceased shall be entitled to 10% of the
award amount along with proportionate up-to-date interest. Out
of the share of petitioner no.1, Rs.1,00,000/- shall be released to
her and remaining amount shall be kept in ten fixed deposits of
equal amount in her name with a nationalized bank for a period
of one year, two years, three years, four years, five years, six
years and seven years, eight years, nine years and ten years
respectively without the facility of advance, loan or premature
withdrawal with release of quarterly periodical interest in her
account.

Out of the share of petitioner no.2, 50% shall be
released and 50% shall be put in fixed deposit with a
nationalized bank for a period of two years without the facility
of advance, loan or premature withdrawal with release of
quarterly periodical interest in her account.

******************************

136. CASE-T

Suit No.193/11
Unique Case ID No.02401C-1465092008

1. Smt.Bimla Ahuja W/o Late Sh.Baldev Raj Ahuja (Wife)

2. Smt.Monika Khurana W/o Sh.Naveen Khurana (Daughter)
Versus
Raj Singh @ Nasir Ali & Ors.

137. The present case relates to the assessment of

Page No.186 of 313
compensation in respect of death of late Shri Jatin Ahuja (son of
Smt. Bimla Ahuja & late Shri Baldev Raj Ahuja) and the facts
and evidence have already been detailed above in Suit
No.195/11.

138. Issue No. (ii)
To what amount of compensation the
claimants are entitled to and from whom?

In the present case it may be noticed that Petitioner
No.2 Monika Khurana W/o Naveen Khurana who is stated to be
the sister of deceased was married and as such she cannot be
considered as a dependent upon the deceased. The mother of
the deceased namely Smt. Bimla Ahuja (Petitioner No.1) is also
employed as UDC with PWD and was not financially dependent
upon the deceased. In the aforesaid circumstances, I am of
the considered opinion that the compensation has to be
calculated for loss to estate and not for loss of dependency as
held in Dinesh Adhlak vs. Pritam Singh & Ors. ILR (2010) V
Delhi 463 (MAC Appeal No.253/07 decided on 15.01.2010 by
Hon'ble Mr. Justice J.R. Midha).

Page No.187 of 313
the deceased. Further, in MAC APP 1145/2012 decided on 29th
April, 2015 by Hon'ble Mr. Justice G.P. Mittal (R. Murgadass &
Ors. v. Satyapal & Anr.), the appellants were not financially
dependent upon the deceased, it was observed that even if the
legal representatives of the deceased victims of a motor
vehicular accidents are not financially dependent upon the
deceased, they are entitled to compensation towards loss to
estate only and the principles laid down by the Hon'ble Division
Bench of Karnataka High Court in A. Manavalagan v. A.
Krishnamurthy & Ors. , 2005 ACJ 1992 were relied for
calculating the loss of estate. It may be appropriate to quote the
relevant principles as settled in A. Manavalagan v. A.
Krishnamurthy & Ors. , 2005 ACJ 1992 by the Hon'ble
Karnataka High Court:

"19. We may summarise the principles enunciated, thus:
(i) The law contemplates two categories of
damages on the death of a person. The first is the
pecuniary loss sustained by the dependant
members of his family as a result of such death.
The second is the loss caused to the estate of the
deceased as a result of such death. In the first
category, the action is brought by the legal
representatives, as trustees for the dependants
beneficially entitled. In the second category, the
action is brought by the legal representatives, on
behalf of the estate of the deceased and the
compensation, when recovered, forms part of the
assets of the estate. In the first category of cases,
the Tribunal in exercise of power under Section
168 of the Act, can specify the persons to whom
compensation should be paid and also specify how
it should be distributed (Note: for example, if the
dependants of a deceased Hindu are a widow aged
35 years and mother aged 75 years, irrespective of
the fact that they succeed equally under Hindu
Succession Act , the Tribunal may award a larger

Page No.188 of 313
share to the widow and a smaller share to the
mother, as the widow is likely to live longer). But
in the second category of cases, no such
adjustments or alternation of shares is permissible
and the entire amount has to be awarded to the
benefit of the estate. Even if the Tribunal wants to
specify the sharing of the compensation amount, it
may have to divide the amount strictly in
accordance with the personal law governing
succession, as the amount awarded and recovered
forms part of the estate of the deceased.

(ii) Where the claim is by the dependants, the
basis for award of compensation is the loss of
dependency, that is loss of what was contributed by
the deceased to such claimants. A conventional
amount is awarded towards loss of expectation of
life, under the head of loss to estate.

(iii) Where the claim by the legal
representatives of the deceased who were not
dependants of the deceased, then the basis for
award of compensation is the loss to the estate,
that is the loss of savings by the deceased.

A conventional sum for loss of expectation of life,
is added.

(iv) The procedure for determination of loss to
estate is broadly the same as the procedure for
determination of the loss of dependency. Both
involve ascertaining the multiplicand and
capitalising it by multiplying it by an appropriate
multiplier. But, the significant difference is in the
figure arrived at as multiplicand in cases where
the claimants who are dependants claim loss of
dependency, and in cases where the claimants who
are not dependents claim loss to estate. The annual
contribution to the family constitutes the
multiplicand in the case of loss of dependency,
whereas the annual savings of the deceased
becomes the multiplicand in the case of loss to
estate. The method of selection of multiplier is
however the same in both cases.

20. The following illustrations with reference to the
case of a deceased who was aged 40 years with a

Page No.189 of 313
monthly income of Rs. 9000/ will bring out the
difference between cases where claimants are
dependents and cases were claimants are not
dependents.

(i) If the family of the deceased consists of a
dependant wife and child, normally one-third will
be deducted towards the personal and living
expenses of the deceased. The balance of Rs.
6000/- per month (or Rs. 72000/- per annum) will
be treated as contribution to the dependent family.
The loss of dependency will be arrived by applying
a multiplier of 14. The loss of dependency will be
Rs. 10,08,000/- plus Rs. 10,000/- under the head of
loss of Estate.

(ii) If the family of the deceased was larger, say
consisting of dependent parents, wife and two
children, necessarily the deceased would spend
more on his family and the deduction towards
personal and living expenses of the deceased will
shrink to one-fifth instead of one-third (Note: In
Gulam Khader v. United India Insurance Co., Ltd. ,

- ILR 2000 Kar 4416 details of this illustration
have been given). Therefore the deduction toward
personal and living expense would be Rs. 1800/-
per month
(one-fifth of Rs.9000/-) and contribution to the
family would be Rs. 7200/- per month or Rs.
86,400/- per annum. Thus loss of dependency will
be Rs. 12,09,600/- (by applying the multiplier of

14). The award under the head of loss of estate
would be Rs. 10000/-.

(iii) If the deceased was a bachelor with dependent
parents aged 65 and 60 years, normally 50% will
be deducted towards personal and living expenses
of the deceased. This is because a bachelor will be
more care free as he had not yet acquired a wife or
child and therefore would tend to spend more on
himself. There was also a possibility of the
bachelor getting married in which event the
contribution to parents will get reduced. Therefore
the contribution to the family (parents) will be Rs.
4500/- per month or Rs. 54000/ - per annum. As

Page No.190 of 313
the multiplier will be 10 with reference to age of
the mother, the loss of dependency will be Rs.
5,40,000/-. Loss of Estate would be a conventional
sum of Rs. 10,000/-.

Note: The above three illustrations relate to cases
where the claimants are dependants. The said
illustration demonstrate that even though the
income of the deceased and age of the deceased
are the same, the 'loss of dependency' will vary,
having regard to the number of dependants, age of
the dependants and nature of dependency. The
ensuing illustrations relate to cases where the legal
heirs of the deceased are not dependants.

(iv) If the deceased is survived by an educated
employed wife earning an amount almost equal to
that of her husband and if each was maintaining a
separate establishment, the question of 'loss of
dependency' may not arise. Each will be spending
from his/her earning towards his living and
personal expenses. Even if both pool their income
and spend from the common income pool, the
position will be the same. In such a case the
amount spent for personal and living expenses by
each spouse from his/her income will be
comparatively higher, that is three-fourth of his/her
income. Each would be saving only the balance,
that is one fourth (which may be pooled or
maintained separately). If the saving is taken as
one -fourth (that is 25%), the loss to the estate
would be Rs. 2250/-per month or Rs. 27000/- per
annum, By adopting the multiplier of 14, the loss
to estate will be Rs. 3,78,000/-.

Note: The position would be different if the
husband and wife, were both earning, and living
together under a common roof, sharing the
expenses. As stated in BURGESS v. FLORENCE
NIGHTINGALE HOSPITAL (1955(1) Q.B. 349),
'when a husband and wife, with separate incomes
are living together and sharing their expenses,
and in consequence of that fact, their joint living
expenses are less than twice the expenses of each

Page No.191 of 313
one living separately, then each, by the fact of
sharing, is conferring a benefit on the other'. This
results in a higher savings, say, one-third of the
income; In addition each spouse loses the benefit
of services rendered by the other in managing the
household, which can be evaluated at say Rs.
1,000/- per month or Rs. 12,000/- per annum). In
such a situation, the claimant (surviving spouse)
will be entitled to compensation both under the
head of loss of dependency (for loss of services
rendered in managing the household) and loss to
estate (savings to an extent of one-third of the
income that is Rs. 3,000/- per month or Rs.
36000/- per annum). Therefore, the loss of
dependency would be 12000x14=168,000/- and
loss to estate would be 36000x14=504,000/-. In
all Rs. 6,72,000/- will be the compensation.

(v) If the deceased was a bachelor and the
claimants are two non-dependent brothers/sisters
aged 47 years and 45 years with independent
income, the position would be different. As the
deceased did not have a 'family', the tendency
would be to spend more on oneself and the
savings would be hardly 15%. If the saving is
taken as 15% (Rs. 1350/- per month), the annual
savings would be Rs. 16,200/- which would be the
multiplicand. The multiplier will be 13 with
reference to the age of the claimants and
the loss of estate would be Rs. 2,10,600/-per
annum.

Though the quantum of savings will vary from
person to person, there is a need to standardise
the quantum of savings for determining the loss
to estate (where the claimants are not
dependants) in the absence of specific evidence
to the contrary. The quantum of savings can be
taken as one-third of the income of the deceased
where the spouses are having a common
establishment and one-fourth where the spouses
are having independent establishments. The
above will apply where the family consists of
non-dependant spouse/children/parents. Where
the claimants are non-dependant brothers/sisters
claiming on behalf of the estate, the savings can
be taken as 15 % of the income. The above

Page No.192 of 313
percentages, one of course, subject to any
specific evidence to the contrary led by the
claimants."

In view of above, since the petitioner no.1 was not
financially dependent upon the deceased, the question of
awarding any amount under the head of loss of dependency
would not arise as there was no financial dependency. Therefore
the savings of the deceased have to be taken as 1/3 rd of his
income and the petitioner shall be accordingly entitled to
1/3rd of the income of the deceased as loss of estate.

139. In the light of aforesaid principles, the loss to estate
is assessed as under:

(a) Income of Deceased

Counsel for the petitioners submits that deceased
Jatin Ahuja, aged about 23 years was running a shop of Juice
Corner at 57, Barid Lane, New Delhi and was earning about
Rs.6,000/- per month. However, it is admitted by the counsel
for petitioners that in the absence of any cogent evidence to
prove the income of deceased the same may be calculated on the
basis of minimum wages of matriculate since the matriculation
certificate (Ex.PW1/8) of deceased is placed in Suit No.195/11.

Considering the facts and circumstances for the

Page No.193 of 313
purpose of assessment of compensation, the notional income of
the deceased is assessed at minimum wages of a matriculate as
notified by Govt. of NCT of Delhi for the relevant period @
Rs.3,918/- per month.

(b) If addition in income towards future prospects is to
be made

Petitioners have claimed that addition towards future
prospects to the extent of 50% be made considering the fact that
deceased was aged about 23 years but the same has been
vehemently opposed by counsel for Insurance Company.

Page No.194 of 313
Kumari & Ors. vs. Madan Mohan & Anr., (2013)
9 SCC 65, on account of divergence of views, as
arising from the ruling in Rajesh & Ors. vs.
Rajbir & Ors., (2013) 9 SCC 54, the issue was
later referred to a larger bench, inter-alia, by
order dated 02.07.2014 in National Insurance
Company Ltd. vs. Pushpa & Ors., (2015) 9 SCC
166.

5. Against the above backdrop, by judgment
dated 22.01.2016 passed in MAC Appeal
No.956/2012 ( Sunil Kumar vs. Pyar Mohd. ), this
Court has found it proper to follow the view
taken earlier by a learned single judge in MAC
Appeal No.189/2014 ( HDFC Ergo General
Insurance Co. Ltd. vs. Smt. Lalta Devi & Ors. )
decided on 12.01.2015, presently taking the
decision in Reshma Kumari (Supra) as the
binding precedent, till such time the law on the
subject of future prospects for those who are
"self-employed" or engaged in gainful
employment at a "fixed salary" is clarified by a
larger bench of the Supreme Court".

In view of the legal position as discussed by the
Hon'ble High Court since the deceased was self-employed
and income has been assessed on notional basis on minimum
wages, addition of income towards future prospects cannot

Page No.195 of 313
be made for the purpose of compensation.

Since the deceased was aged about 23 years and the
assessment of compensation is to be computed for loss of estate
and not loss of dependency, multiplier of 18 would be applicable
as per Sarla Verma (Smt.) & Others vs. Delhi Transport
Corporation & Another (2009) 6 SCC 121.

(d) Loss of Estate

In the light of aforesaid facts, loss of estate as 1/3 rd of
the income of the deceased and applying the multiplier of 18 is
computed as Rs.2,82,096/- [Rs.3,918/- (income) X 12 (months)
X 18 (multiplier) X 1/3rd].

140. Compensation under non-pecuniary heads:

Hon'ble Apex Court in Rajesh & Ors. v. Rajbir
Singh & Ors., (2013) 9 SCC 54 awarded a sum of Rs.1 lakh

Page No.196 of 313
towards loss of love and affection and Rs.25,000/- towards
funeral expenses. Further, interest @ 9% per annum was
awarded on the award amount by the Hon'ble Apex Court in
Municipal Corporation of Delhi v. Association of Victims of
Uphaar Tragedy , 2012 ACJ 48 (SC).

Considering the facts and circumstances, petitioners
are entitled to Rs.1 lakh towards loss of love and affection and
Rs.25,000/- are awarded towards funeral expenses.

141. The petitioners/claimants are accordingly entitled
to compensation computed as under:

Loss of estate Rs.2,82,096/--
Loss of Love and affection Rs.1,00,000/-
Funeral Expenses Rs.25,000/-
________________
Total Rs.4,07,096/-
________________
(Rounded off to Rs.4,07,100/-)
(Rupees Four Lakh Seven Thousand & One Hundred Only)

The claimants/petitioners are also entitled to interest
@ 9% p.a. from the date of filing of petition i.e. w.e.f.
16.08.2007 till realization.

The amount of interim award, if any, shall however
be deducted from the above amount, if the same has already
been paid to the petitioners.

142. It may be observed that though married sisters are
not strictly dependent on their brothers but are conventionally
Page No.197 of 313
awarded some percentage out of the compensation for the loss
of love and affection and the care which the brothers
customarily extend to their sisters. Accordingly on realization,
petitioner No.1 shall be entitled to 90% and petitioner no.2, who
is the married daughter of the deceased shall be entitled to 10%
of the award amount along with proportionate up-to-date interest
thereon.

Out of the share of petitioner no.1, Rs.1,00,000/-
shall be released to her and remaining amount shall be kept in
Ten fixed deposits of equal amount in her name with a
nationalized bank for a period of one year, two years, three
years, four years, five years, six years and seven years, eight
years, nine years and ten years respectively without the facility
of advance, loan or premature withdrawal with release of
quarterly periodical interest in her account.

Out of the share of petitioner no.2, 50% shall be
released and 50% shall be put in fixed deposit with a
nationalized bank for a period of one year without the facility of
advance, loan or premature withdrawal with release of quarterly
periodical interest in her account.

************************************

143. CASE-U

Suit No.192/11
Unique Case ID No.02401C-0820722007

Smt. Bimla Ahuja W/o Late Sh.Baldev Raj Ahuja
Versus 1.

Raj Singh @ Nasir Ali & Ors.

Page No.198 of 313
The present case relates to the assessment of
compensation in respect of injuries suffered by Smt. Bimla
Ahuja (wife of late Shri Baldev Raj Ahuja) and the facts and
evidence have already been detailed above in Suit No.195/11.

144. Issue No.(ii)
To what amount of compensation the
claimants are entitled to and from whom?

Common evidence led on behalf of petitioner has
already been referred in Suit No.195/11. Counsel for petitioner
submits that the petitioner Bimla Ahuja sustained simple injuries
as referred in the MLC. It is further urged that expenses for
Rs.3,800/- as per prescription/bill Ex.PW1/15 is placed in suit
no.192/11.

As per MLC (Ex.PW1/14) prepared at Dr. Rajender
Prasad Government Hospital and associated hospital, Kangara
the petitioner had suffered 'swelling left side of forehead'. Final
opinion was reserved to be given after surgical record. Further
prescription/bills regarding treatment at Delhi have been placed
on record. Petitioner also appears to have been advised medical
rest for some days though no evidence from the office of the

Page No.199 of 313
petitioner has been led in case she availed medical leave on
account of injuries suffered in the accident. However, judicial
notice can be taken of the fact that the petitioner must have
remained under trauma and suffered pain and suffering as a
result of falling of the bus in the valley. Also expenses has
separately been incurred on conveyance from Kangra to Delhi.
Considering the facts and circumstances petitioner is awarded
compensation of Rs.20,000/- towards pain and suffering and
injuries sustained in the accident. Also, a sum of Rs.5,000/- is
awarded towards diet, and conveyance.

Medical Bills
Petitioner is also awarded a sum of Rs.3,800/-
towards medical bills which has not been disputed by counsel
for respondents. The amount is rounded off to Rs.4,000/- for
purpose of compensation.

145. As discussed above, the overall compensation is
tabulated as under:

Loss of wages -NIL-
Pain and suffering Rs.20,000/-
Diet & conveyance Rs.5,000/-
Medical Bills Rs.3,800/-
(rounded off to Rs.4,000/-
___________
Total Rs.29,000/-
________________

(Rupees Twenty Nine Thousand Only)

The claimant/petitioner is also entitled to interest @
9% p.a. from the date of filing of claim petition i.e. w.e.f.

Page No.200 of 313
16.08.2007 till realization.

146. On realization, entire compensation amount along
with up-to-date interest shall be released to the petitioner.

******************************

147. CASE-V

Suit No.657/11
Unique Case ID No.02401C-0886142007

Smt.Anu Gulati W/o Lt.Sh.Sanjeev Gulati
Versus
Raj Singh @ Nasir Ali & Ors.

As per case of petitioner (Anu Gulati), she was
travelling in bus no.DL 1PC 7676 along with her husband late
Shri Sanjeev Gulati @ Sanjay on a pilgrimage since 17.06.2007
in bus No DL 1PC 7676 and received grievous injuries in the
accident on 20.06.2007. Shri Sanjeev Gulati @ Sanjay (husband
of the petitioner) also suffered fatal injuries in the accident and
expired on 20.06.2007. Petitioner was admitted at Dr.Rajender
Prasad Government College Hospital, Tanda, District Kangra,
HP on 20.06.2007 after the accident. She was thereafter shifted
to Indian Spinal Injuries Centre, Delhi wherein she remained
admitted from 22.06.2007 to 07.07.2007 with the final diagnosis
of "fracture left transverse process of L1, L2, L3; fracture of
right superior, inferior, pubic rami; fracture right sacralm-LC
type I". Further, as per the discharge summary, the patient was
managed conservatively considering the nature of injuries. It is

Page No.201 of 313
further the case of petitioner that she was employed as a
beautician at Sidico Boutique and Beauty Parlour, Moti Nagar
and earning about Rs.5,000/- per month. Compensation is
claimed for Rs.15,00,000/-.

148. On the pleadings of the parties, following issues were
framed for consideration vide order dated 09.01.2008 by ld.
Predecessor:-

(i) Whether the petitioner Baldev Raj, Sanjeev
Gulati, Sita Ram and Jatin Ahuja sustained
fatal injuries. Sh.Baldev Raj Ahuja, Master
Sunny Ahuja, Smt. Saroj Ahuja, Sh.Hari Om
Mahna, Sh.Atul Kumar Sharma, Baby Astha
Mahna, Smt.Shalu Mahna, Sh.Amol Bajaj,
Smt.Bharti Bajaj and Smt. Anu Gulati
sustained injuries as put forth in the petitions
and medical records of the case took place on
account of rash and negligent driving of
Respondent No.1 of bus bearing registration
no.DL 1 PC 7676?

(ii) To what amount of compensation the
claimants are entitled to and from whom?

(iii) Relief.

149. In support of the claim petition, four witnesses were
examined namely PW1 Smt. Sunita, PW2 Rakesh Kumar and

Page No.202 of 313
PW3 Dr. Pushkar Chawla as per the statement placed in Suit
No.657/11. Also, petitioner Anu Gulati (PW4) led her evidence
in common in respect of Suit No.657/11 as well as 658/11 (claim
petition in respect of her deceased husband) as per the statement
placed in Suit No.658/11.

PW1 Smt. Sunita who was engaged as an attendant
deposed that she had been looking after the petitioner as injured
was unable to look after herself after the accident. Further, she
attended the petitioner from 15.07.2007 to 31.01.2008 for day
and night at a salary of Rs.5,000/- per month in cash.

During cross-examination, she clarified that she had
been doing the attendant work but had for the first time worked
as an attendant to a patient. Further, during the aforesaid period
she had not done any work for her own family and denied the
suggestion that she had not worked as an attendant.

PW2 Shri Rakesh Kumar, Senior Technician,
Indian Spinal Injuries Centre proved the bills of the petitioner
for Rs.26,647/- (Ex.PW2/2) and the discharge summary of the
petitioner for the period 22.06.2007 to 07.07.2007 (Ex.PW2/3).
Nursing notes were further produced during cross-examination
(Ex.PW2/R1).

PW3 Dr. Pushkar Chawla proved the discharge
summary prepared by him at Indian Spinal Injuries Centre
(Ex.PW2/3). He further deposed that patient was suffering from

Page No.203 of 313
fracture left transverse process L1, L2, L3; fracture of right
superior inferior pubic rami; fracture right sacralm as detailed in
the discharge summary. He further stated that multiple fractures
were grievous in nature but no surgery was performed and the
patient was advised for continuous physiotherapy for 3-4
months. He further stated that due to injuries sustained by the
patient she may have pain here and there in later part of her life
as the backbone injury cannot be cured perfectly and would have
discomfort.

During cross-examination, he clarified that he had
examined the patient in last week in October, 2007.

PW4 Anu Gulati led her evidence on the lines of
claim petition regarding the injuries sustained by her and in
respect of death of her husband Sanjeev Gulati. She further
stated that her husband was self employed/running handloom
shop in the name and style of JMD Handloom at T-192, Baljeet
Nagar and was earning about Rs.8,000/- per month. She further
relied upon documents Ex.PW4/1 to Ex.PW4/19 as detailed in
the affidavit i.e. attested copy of MLC of the petitioner
(Ex.PW4/1), medical bills of the petitioner (Ex.PW4/2),
prescriptions/treatment record of petitioner (Ex.PW4/3 &
Ex.PW4/4), copy of ration card (Ex.PW4/5), death certificate of
her deceased husband Sanjeev Gulati (Ex.PW4/6), Voter I-card
of her deceased husband (Sanjeev Gulati) Ex.PW4/7, surviving
members certificate for the petitioners (Ex.PW4/8), educational
papers of her deceased husband Sanjeev Gulati (Ex.PW4/9),
wedding card of the petitioner (Ex.PW4/10), bills of conveyance

Page No.204 of 313
(Ex.PW4/11), copy of master card of her deceased husband
Sanjeev Gulati (Ex.PW4/12), attested copy of insurance policy
of the offending bus (Ex.PW4/13), attested copy of RC of the
offending bus (Ex.PW4/14), attested copy of driving licence of
the driver of the offending bus (Ex.PW4/15),, attested copy of
the permit of the offending bus (Ex.PW4/16), certified copy of
FIR No.125/07 dated 21.06.2007 PS Dharamshala, Himachal
Pradesh (Ex.PW4/17), postmortem report of her deceased
husband Sanjeev Gulati (Ex.PW4/18) and Election I-cards of the
petitioners (Ex.PW4/19).

On cross-examination, she deposed that the tour
was organised by Shri Baldev Ahuja and there were 23 elders,
06 children and two other babies. Further, one of the seats might
be empty in the bus. She further stated that she was awake at the
time of the accident and the driver of the offending bus was
driving at high speed. She denied the suggestion that the bus
was overcrowded and there were more passengers than its
capacity. She further admitted that she had not filed any
document to show that her husband was a graduate or that she
was employed in Sibaca Boutique and was earning about
Rs.5,000/- per month. She further denied that a maid was not
employed at Rs.5,000/- per month or that the accident had taken
place due to overloading of bus.

150. Issue No. (ii)
To what amount of compensation the claimants
are entitled to and from whom?

Page No.205 of 313
Counsel for petitioner submitted that immediately
after the accident on 20.06.2007, petitioner was admitted at Dr.
Rajender Prasad Government Medical College Hospital, Tanda,
District Kangra, Himachal Pradesh and due to her precarious
condition was shifted to Indian Spinal Injuries Centre, Delhi on
22.06.2007 wherein she remained admitted till 07.07.2007. It
was further contended that petitioner was employed with Sibaca
Boutique and earning about Rs.5,000/- per month.

151. It may be observed that for the purpose of assessment
of compensation, the nature of injury, the parts of body wherein
the injury was sustained, surgery if any undertaken, confinement
in the hospital and duration of the treatment are considered.

As per discharge summary of Indian Spinal Injuries
Centre, Delhi, petitioner was admitted therein on 22.06.2007
and discharged on 07.07.2007. Further, the petitioner is
reflected to have suffered fracture transverse processes of L1, L2
& L3, fracture right superior, inferior pubic rami and fracture
right sacralm-LC type I and was managed conservatively.
Further, testimony of PW3 Dr. Pushkar Chawla reflects that
petitioner was advised continuous physiotherapy for 3-4 months
as she required active exercises for 3-4 months. It may also be
noticed that as per statement of PW1 Smt. Sunita who was
engaged as an attendant the petitioner was completely unable to
look after herself and PW1 was engaged to look after the
petitioner for the period 15.07.2007 to 31.01.2008. Considering
the nature of injuries and the evidence on record, it can be

Page No.206 of 313
presumed that the petitioner may not have been able to carry her
vocation for a period of about 09 months.

However, admittedly no documentary/cogent
evidence has been led to prove either the employment or the
income of the petitioner. In the facts and circumstances, income
of the petitioner is assessed on notional basis as per the
minimum wages of an unskilled labourer as notified by the
Government of NCT of Delhi for the relevant period @
Rs.3,470/- per month.

Considering the fact that petitioner suffered fracture
transverse processes of L1, L2 & L3, fracture right superior,
inferior pubic rami and fracture right sacralm-LC type I and was
managed conservatively, petitioner is awarded a sum of
Rs.31,230/- {i.e. Rs.3,470/- (notional income per month) X 09
(months)} towards loss of income for a period of 09 months.

Special Diet and Conveyance
Petitioner is further awarded an amount of
Rs.30,000/- towards special diet and Rs.20,000/- towards
conveyance for shifting from Kangra to Delhi and amount spent
during the period of treatment.

Pain and Suffering
It may be noticed that immediately after the accident
on 20.06.2007, petitioner was admitted at Dr. Rajender Prasad
Government Medical College Hospital, Tanda, District Kangra,
Himachal Pradesh and shifted to Indian Spinal Injuries Centre,
Delhi on 22.07.2007 and remained admitted therein till

Page No.207 of 313
07.07.2007. Further, as per per discharge summary of Indian
Spinal Injuries Centre, Delhi, petitioner suffered fracture
transverse processes of L1, L2 & L3, fracture right superior,
inferior pubic rami and fracture right sacralm-LC type I and was
managed conservatively.

Considering the nature of injuries suffered by the
petitioner and record of treatment, petitioner is awarded a sum of
Rs.1,00,000/- towards pain and suffering for injuries sustained
by her in the accident.

Claim towards Medical Bills
Petitioner has placed and proved on record medical
bills amounting to Rs.29,554/- which have not been disputed on
behalf of the respondents. Petitioner is accordingly awarded a
sum of Rs.29,554/- towards medical bills.

In the present case, PW1 Smt. Sunita who was
engaged as an attendant deposed that she had been looking after
the petitioner as the petitioner was unable to look after herself

Page No.208 of 313
after the accident. Further, she attended the petitioner from
15.07.2007 to 31.01.2008 for day and night at a salary of
Rs.5,000/- per month in cash.

During cross-examination, she clarified that since
she was required to stay for the whole day, she charged
Rs.5,000/- per month.

It may be noticed that the minimum wages for a
unskilled worker during the relevant period were Rs.3,470/-.
However, since the attendant (PW1) was required to stay for 24
hours a day, the charges for Rs.5,000/- are not exaggerated and
are allowed for the period 15.07.2007 to 31.01.2008.
Accordingly, a sum of Rs.32,500/- is awarded to the petitioner
towards attendant charges.

Also, a sum of Rs.2,500/- is granted to the family
members towards gratuitous services rendered by them during
the period 20.06.2007 till 14.07.2007. Total amount of
Rs.35,000/- is accordingly granted to petitioner towards the
attendant charges

152. As discussed above, the overall compensation is
tabulated as under:

Loss of Income Rs.31,230/-
Pain & Suffering Rs.1,00,000/-
Conveyance Rs.20,000/-
Special Diet Rs.30,000/-
Medical Expenses Rs.29,554/-
Attendant Charges Rs.35,000/-
---------------------
Total Rs.2,45,784/-
-------------------------------
(Rounded off to Rs.2,46,000/-)
(Rupees Two Lakh Forty Six Thousand Only)

Page No.209 of 313
The claimant/petitioner is also entitled to interest @
9% p.a. from the date of filing of petition i.e. w.e.f. 01.09.2007
till realization.

153. On realization, 30% shall be released to the
petitioner and remaining 70% shall be equally fixed deposited in
her name with a nationalized bank for a period of one year, two
years, three years, four years and five years respectively without
the facility of loan, advance or premature withdrawal with
release of quarterly interest in her account.

**************************************

154. CASE-W

Suit No.658/11
Unique Case ID No.02401C-0885982007

1. Smt.Anu Gulati W/o Lt.Sh.Sanjeev Gulati (Wife)

2. Smt. Pushpa Gulati W/o Sh.Rammurti Gulati (Mother)

3. Sh.Rammurti Gulati S/o Late Sh.Diwan Chand (Father)

4. Jyoti Gulat D/o Sh.Rammurti Gulati (Sister)
Versus
Raj Singh @ Nasir Ali & Ors.

As per the case of petitioners (who are the wife,
parents and sister of the deceased Sanjeev Gulati @ Sanjay),
petitioner no. 1 along with her husband Sanjeev Gulati (since
deceased) were travelling in bus no.DL 1PC 7676 on a
pilgrimage since 17.06.2007. Sanjeev Gulati received fatal
injuries in the accident on 20.06.2007 while petitioner no.1 Smt.
Anu Gulati (wife of deceased) sustained grievous injuries and

Page No.210 of 313
has separately preferred Suit No.657/11. It is further the case of
petitioners that deceased was running a handloom shop in the
name and style of M/s J.M.D. Handloom at T-192, Baljeet
Nagar, New Delhi-08 and earned about Rs.8,000/- per month.
Compensation is claimed for a sum of Rs.20,00,000/-.

155. On the pleadings of the parties, following issues were
framed for consideration vide order dated 09.01.2008 by ld.
Predecessor:-

(i) Whether the petitioner Baldev Raj, Sanjeev
Gulati, Sita Ram and Jatin Ahuja sustained
fatal injuries. Sh.Baldev Raj Ahuja, Master
Sunny Ahuja, Smt. Saroj Ahuja, Sh.Hari Om
Mahna, Sh.Atul Kumar Sharma, Baby Astha
Mahna, Smt.Shalu Mahna, Sh.Amol Bajaj,
Smt.Bharti Bajaj and Smt. Anu Gulati
sustained injuries as put forth in the petitions
and medical records of the case took place on
account of rash and negligent driving of
Respondent No.1 of bus bearing registration
no.DL 1 PC 7676?

(ii) To what amount of compensation the
claimants are entitled to and from whom?

(iii) Relief.

156. In support of the claim petition bearing Suit

Page No.211 of 313
No.657/11 (in respect of injuries sustained by Anu
Gulati/petitioner no.1) and present Suit No.658/11 (in respect of
death of Sanjeev Gulati @ Sanjay) four witnesses were
examined. PW1 Smt. Sunita, PW2 Rakesh Kumar and PW3 Dr.
Pushkar Chawla are relevant in respect of injuries sustained by
Anu Gulati as per the statements placed in Suit No.657/11.
Petitioner Anu Gulati (PW4) led her evidence in common in
respect of Suit No.657/11 as well as present Suit No. 658/11 as
per the statement placed in Suit No.658/11.

PW4 Anu Gulati led her evidence on the lines of
claim petition in respect of injuries sustained by her and death of
her husband Sanjeev Gulati. She further stated that her husband
was self employed/running handloom shop in the name and style
of JMD Handloom at T-192, Baljeet Nagar and was earning
about Rs.8,000/- per month. PW4 further relied upon
documents Ex.PW4/1 to Ex.PW4/19 as detailed in the affidavit
i.e. attested copy of MLC of the petitioner (Ex.PW4/1), medical
bills of the petitioner (Ex.PW4/2), prescriptions/treatment record
of petitioner (Ex.PW4/3 & Ex.PW4/4), copy of ration card
(Ex.PW4/5), death certificate of her deceased husband Sanjeev
Gulati (Ex.PW4/6), Voter I-card of her deceased husband
(Sanjeev Gulati) Ex.PW4/7, surviving members certificate for
the petitioners (Ex.PW4/8), educational papers of her deceased
husband Sanjeev Gulati (Ex.PW4/9), wedding card of the
petitioner (Ex.PW4/10), bills of conveyance (Ex.PW4/11), copy
of master card of her deceased husband Sanjeev Gulati
(Ex.PW4/12), attested copy of insurance policy of the offending

Page No.212 of 313
bus (Ex.PW4/13), attested copy of RC of the offending bus
(Ex.PW4/14), attested copy of driving licence of the driver of
the offending bus (Ex.PW4/15),, attested copy of the permit of
the offending bus (Ex.PW4/16), certified copy of FIR No.125/07
dated 21.06.2007 PS Dharamshala, Himachal Pradesh
(Ex.PW4/17), postmortem report of her deceased husband
Sanjeev Gulati (Ex.PW4/18) and Election I-cards of the
petitioners (Ex.PW4/19).

157. Issue No. (ii)
To what amount of compensation the claimants are
entitled to and from whom?

(a) Income of Deceased
Counsel for the petitioners contended that deceased

Page No.213 of 313
Sanjeev Gulati, aged about 27 years was running business in the
name of M/s JMD Handloom at T-192 Baljeet Nagar and
earning about Rs.8,000/- per month.

Admittedly, no documentary evidence has been
placed on record to prove that deceased was running business at
aforesaid premises and earning Rs.8,000/- per month. The bald
statement of petitioner no.1 cannot be accepted in absence of
any corroborating evidence to prove the running of business and
income of deceased.

I am of the considered opinion that in the absence of
any cogent evidence, income of the deceased may be assumed
on notional basis as per minimum wages as notified by Govt. of
NCT of Delhi for the relevant period for a matriculate @
Rs.3,918/- per month in view of copy of secondary school
certificate of deceased placed on record.

(b) If addition in income towards future prospects is to
be made
Petitioners have claimed that addition towards future
prospects to the extent of 50% be made considering the fact that
deceased was aged about 27 years but the same has been
vehemently opposed by counsel for Insurance Company.

"4. In the case reported as Sarla Verma & Ors. vs.

Page No.214 of 313
Delhi Transport Corporation & Anr. , (2009) 6 SCC
121, Supreme Court, inter-alia, ruled that the element of
future prospects of increase in income will not be
granted in cases where the deceased was "self
employed" or was working on a "fixed salary". Though
this view was affirmed by a bench of three Hon'ble
Judges in Reshma Kumari & Ors. vs. Madan Mohan &
Anr. , (2013) 9 SCC 65, on account of divergence of
views, as arising from the ruling in Rajesh & Ors. vs.
Rajbir & Ors., (2013) 9 SCC 54, the issue was later
referred to a larger bench, inter-alia, by order dated
02.07.2014 in National Insurance Company Ltd. vs.
Pushpa & Ors. , (2015) 9 SCC 166.

5. Against the above backdrop, by judgment dated
22.01.2016 passed in MAC Appeal No.956/2012 ( Sunil
Kumar vs. Pyar Mohd. ), this Court has found it proper
to follow the view taken earlier by a learned single
judge in MAC Appeal No.189/2014 ( HDFC Ergo
General Insurance Co. Ltd. vs. Smt. Lalta Devi & Ors. )
decided on 12.01.2015, presently taking the decision in
Reshma Kumari (Supra) as the binding precedent, till
such time the law on the subject of future prospects for
those who are "self-employed" or engaged in gainful
employment at a "fixed salary" is clarified by a larger
bench of the Supreme Court".

In the present case, in view of aforesaid legal
position as laid by the Hon'ble High Court since the
deceased was self-employed and income has been assessed on
notional basis as per minimum wages, addition of income
towards future prospects cannot be made for the purpose of
compensation.

As per Sarla Verma (Smt.) & Ors. vs. Delhi
Transport Corporation & Anr. (2009) 6 SCC 121, the

Page No.215 of 313
deduction towards personal and living expenses of the deceased
should be one-third (1/3rd) where the number of dependent
family members is 2 to 3, 1/4th where the number of dependent
family members is 4 to 6 and 1/5 th where the number of
dependent family member exceeds 6.
Normally, the father is not considered as dependent
upon son. There is no cogent evidence on record to presume
that petitioner no. 3 Rammurti Gulati aged about 56 years at the
time of accident was financially dependent upon the deceased.
In view of the same, number of dependents for the purpose of
assessment of compensation is taken as 3.
Considering the number of dependents as three, the
deduction towards personal and living expenses of the deceased
shall be 1/3rd as held in Sarla Verma 's case (supra).

(d) Selection of multiplier:
The date of birth of deceased is reflected as
10.06.1980 in the tenth class certificate and the age is also
corroborated by the copy of ration card as well as voter's identity
card (Ex.PW4/7) placed on record. The deceased was
accordingly aged about 26 years on the date of accident.
As per Sarla Verma (Smt.) & Ors. vs. Delhi
Transport Corporation & Anr. (2009) 6 SCC 121, multiplier of
17 would be applicable for the purpose of assessment of
compensation.

(e) Loss of financial dependency
In the facts and circumstances, loss of financial

Page No.216 of 313
dependency of the petitioners comes to Rs.5,32,848/- [i.e.
Rs.3,918/- (notional income) X 12 (months) X 17 (multiplier) X
2/3 (dependency)]. The same is rounded off to Rs.5,33,000/-.

158. Compensation under non-pecuniary heads:

Though a wide discretion in determination of
compensation is given but the amplitude of such powers has to
be exercised in consonance with settled principles. It needs to be
borne in mind that compensation is neither expected to be
windfall or bonanza or source of profit but at the same time
should not be pittance.
It has been held by the Hon'ble Apex Court in Rajesh
& Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 that the
compensation is to be awarded for a sum of Rs.1 lakh each
towards loss of love and affection and loss of consortium,
Rs.25,000/- towards funeral expenses and Rs.10,000/- towards
loss of estate.
Hon'ble Apex Court further awarded a sum of
Rs.50,000/- to each parent for loss of love and affection in M.
Mansoor v. United India Insurance Co. Ltd. , 2013 ACJ 2849
(SC). Interest @ 9% per annum was also awarded on the award
amount by the Hon'ble Apex Court in Municipal Corporation
of Delhi v. Association of Victims of Uphaar Tragedy , 2012
ACJ 48 (SC).
Petitioner no. 1 is accordingly awarded Rs.1 lakh for
loss of consortium and petitioner no. 1 & 4 are also granted Rs.1
lakh towards loss of love and affection. Petitioner no. 2 & 3
shall be further entitled to Rs.50,000/- each on account of loss of

Page No.217 of 313
love and affection as held in M. Mansoor v. United India
Insurance Co. Ltd. (supra). Petitioners are also awarded
Rs.25,000/- towards funeral expenses and Rs.10,000/- towards
loss of estate.

159. Petitioners/claimants are accordingly entitled to
compensation computed as under:

Loss of financial dependency Rs.5,32,848/-
(Rounded off to Rs.5,33,000/-)
Loss of Consortium to Wife Rs.1,00,000/-
Loss of love and affection to wife Rs.1,00,000/-
Loss of love and affection to parents Rs.1,00,000/-
Loss of Estate Rs.10,000/-
Funeral Expenses Rs.25,000/-
________________
Total Rs.8,68,000/-
________________

(Rupees Eight Lakh Sixty Eight Thousand only)

The claimants/petitioners are also entitled to interest
@ 9% p.a. from the date of filing of petition w.e.f. 01.09.2007
till realization.
The amount of interim award, if any, shall however
be deducted from the above amount, if the same has already
been paid to the petitioner.

Disbursement
160. Having suffered the perpetual loss and affection of a
brother, petitioner no. 4 who is the sister of the deceased shall
be entitled to Rs.50,000/- out of Rs.8,68,000/- with
proportionate up-to-date interest thereon.

Page No.218 of 313
Out of the share of petitioner no.4 (sister of
deceased), an amount of Rs.25,000/- (Rupees Twenty Five
Thousand Only) shall be released to her and remaining amount
of shall be kept in FDR with a nationalised bank for a period of
one year without the facility of advance, loan or premature
withdrawal with release of quarterly periodical interest in her
account.

Further, out of balance amount of Rs.8,18,000/-,
petitioner no.1 Anu Gulati (wife of deceased) shall be entitled to
70% and petitioner no. 2 & 3 (parents of deceased) shall be
entitled to 15% each along with proportionate up to date interest
thereon.

On realization, an amount of Rs.1,00,000/- (Rupees
One Lakh only) shall be released to petitioner no. 1 Anu Gulati
(wife of deceased) and remaining amount of her share shall
be kept in seven fixed deposits of equal amount in her name
with a nationalised bank for a period of one year, two years,
three years, four years, five years, six years and seven years
respectively without the facility of advance, loan or
premature withdrawal with release of quarterly periodical
interest in her account.

Further, out of the share of petitioner no.2 & 3
(parents of deceased), an amount of Rs.30,000/- (Rupees Thirty
Thousand Only) each shall be released to petitioner no. 2 & 3
and remaining amount of their share shall be kept in five
fixed deposits of equal amount in their respective names with a
nationalised bank for a period of one year, two years, three
years, four years and five years respectively without the facility

Page No.219 of 313
of advance, loan or premature withdrawal with release of
quarterly periodical interest in their account.

************************************

161. CASE-X

Suit No.326/11
Unique Case ID No.02401C-0816062007

Raghav Ram S/o Late Sh. Bhikari Ram (Brother)
Versus
Raj Singh @ Nasir Ali & Ors.

As per case of petitioner, his brother late Shri Sita
Ram aged about 39 years was travelling in bus no.DL 1PC
7676 along with other passengers on a pilgrimage since
17.06.2007 and received fatal injuries in the accident on
20.06.2007. It is further the case of petitioner that the deceased
was self employed as a caterer/halwai on contract basis for
parties in the name of Nanakchand Jatu Halwai, Ranjeet Nagar
and was earning about Rs.8,000/- per month. It was further
claimed that the petitioner is younger brother of the deceased
and was dependent on the deceased for day-to-day needs.
Compensation is claimed for a sum of Rs.20,00,000/-.

It may be clarified at this stage itself that during cross-
examination petitioner admitted that the deceased was his elder
brother and there appears to be some mishmash while drafting
the facts in the petition.

162. Vide order dated 09.01.2008 following issues were

Page No.220 of 313
framed by the ld. Predecessor:

(i) Whether the petitioner Baldev Raj, Sanjeev
Gulati, Sita Ram and Jatin Ahuja sustained
fatal injuries. Sh.Baldev Raj Ahuja, Master
Sunny Ahuja, Smt. Saroj Ahuja, Sh.Hari Om
Mahna, Sh.Atul Kumar Sharma, Baby Astha
Mahna, Smt.Shalu Mahna, Sh.Amol Bajaj,
Smt.Bharti Bajaj and Smt. Anu Gulati
sustained injuries as put forth in the petitions
and medical records of the case took place on
account of rash and negligent driving of
Respondent No.1 of bus bearing registration
no.DL 1 PC 7676?

(ii) To what amount of compensation the
claimants are entitled to and from whom?

(iii) Relief.

163. PW1 Raghav Ram testified on the lines of the claim
petition and further proved copy of ration card (Ex.PW1/1),
death certificate of deceased Sita Ram (Ex.PW1/2), certificate
regarding his permanent residence (Mark A), copy of
postmortem report of deceased (Ex.PW1/3), ration card of
present address (Ex.PW1/4).

During cross examination, he stated that wife of
petitioner and his parents had expired prior to death of his

Page No.221 of 313
brother. Further, the deceased was 39 years old but no proof
had been filed regarding his age except the ration card. He
further clarified that the deceased was 11-12 years younger to
him and the petitioner was aged about 50 years. He further
stated that he was living along with his brother in Delhi but had
no proof thereof. Further, he had no proof to show that deceased
was earning Rs.8,000/- per month. He further stated that he was
a rickshaw puller by profession while the deceased was a cook.

164. Issue No. (ii)
To what amount of compensation the
claimants are entitled to and from whom?

Counsel for petitioner contended that the income of
the deceased be assessed at Rs.8,000/- per month and further the
loss of dependency be calculated after making deduction of 1/2
towards personal expenses and applying the relevant multiplier.

In the present case, it may be noticed that the claim
has been filed by the elder brother of the deceased (who was a
bachelor aged about 39 years at the time of accident). Petitioner
clarified during cross-examination that the deceased was his
younger brother and working as a cook/halwai while the
petitioner himself is a rickshaw puller and aged about 45 years
at the time of filing of petition. There is no cogent evidence on
record to infer that the petitioner was financially dependent upon
the deceased. In the aforesaid circumstances, I am of the
considered opinion that the compensation has to be
calculated for loss to estate and not for loss of dependency as

Page No.222 of 313
held in Dinesh Adhlak vs. Pritam Singh & Ors. ILR (2010) V
Delhi 463 (MAC Appeal No.253/07 decided on 15.01.2010 by
Hon'ble Mr. Justice J.R. Midha).

"19 (iv). The procedure for loss of estate is broadly the
same as procedure for determination for loss of
dependency. Both involve ascertaining the
multiplicand and capitalising it by multiplying it by an
appropriate multiplier. But the significant difference is
in the figure arrived at as multiplicand in cases where
the claimants who are dependents claim loss of
dependency, and in cases where the claimants who are
not dependents claim loss to estate. The annual
contribution to the family constitutes the multiplicand
in the case of loss of dependency, whereas the annual
savings of the deceased becomes the multiplicand in the
case of loss to estate. The method of selection of
multiplier is however the same in both cases".

" 20 (v)........Though the quantum of savings will vary
from person to person, there is a need to standardise
the quantum of savings for determining the loss to
estate (where the claimants are not dependents) in the
absence of specific evidence to the contrary. The
quantum of savings can be taken as one-third of the
income of the deceased where the spouses are having a
common establishment and one-fourth where the

Page No.223 of 313
spouses are having independent establishments. The
above will apply where the family consists of non-
dependent spouse/children/parents. Where the
claimants are non-dependent brothers/sisters
claiming on behalf of the estate, the savings can be
taken as 15% of the income. The above percentages,
one of course, subject to any specific evidence to the
contrary led by the claimants."

165. In the light of aforesaid principles, the loss to estate
is assessed as under:

(a) Income of Deceased
No cogent evidence has been led on record to prove
that the deceased was earning about Rs.8,000/- per month as a
halwai. I am of the considered opinion that bald statement of the
petitioner cannot be accepted to hold that deceased was earning
Rs.8,000/- per month. In the facts and circumstances, for the
purpose of compensation, income of the deceased is assessed on
notional basis as per the minimum wages notified for an
unskilled worker by the Govt. of NCT of Delhi for the relevant
period @ Rs.3,470/- per month.

(b) If addition in income towards future prospects is to
be made
Counsel for petitioner claimed that addition towards
future prospects to the extent of 50% be made considering the
fact that deceased was aged about 39 years at the time of
accident.

The observations in MAC Appeal No.544/07 decided
on 06.05.2016 by Hon'ble Mr.Justice R.K.Gauba in ICICI

Page No.224 of 313
Lombard General Insurance Company Ltd. vs. Smt. Nagina
Begum & Anr. on the point of addition of future prospects may
be referred.

"4. In the case reported as Sarla Verma & Ors. vs.
Delhi Transport Corporation & Anr. , (2009) 6 SCC
121, Supreme Court, inter-alia, ruled that the element of
future prospects of increase in income will not be
granted in cases where the deceased was "self
employed" or was working on a "fixed salary". Though
this view was affirmed by a bench of three Hon'ble
Judges in Reshma Kumari & Ors. vs. Madan Mohan &
Anr. , (2013) 9 SCC 65, on account of divergence of
views, as arising from the ruling in Rajesh & Ors. vs.
Rajbir & Ors., (2013) 9 SCC 54, the issue was later
referred to a larger bench, inter-alia, by order dated
02.07.2014 in National Insurance Company Ltd. vs.
Pushpa & Ors. , (2015) 9 SCC 166.

5. Against the above backdrop, by judgment dated
22.01.2016 passed in MAC Appeal No.956/2012 ( Sunil
Kumar vs. Pyar Mohd. ), this Court has found it proper
to follow the view taken earlier by a learned single
judge in MAC Appeal No.189/2014 ( HDFC Ergo
General Insurance Co. Ltd. vs. Smt. Lalta Devi & Ors. )
decided on 12.01.2015, presently taking the decision in
Reshma Kumari (Supra) as the binding precedent, till
such time the law on the subject of future prospects for
those who are "self-employed" or engaged in gainful
employment at a "fixed salary" is clarified by a larger
bench of the Supreme Court".

In the present case, in view of aforesaid legal
position as settled by the Hon'ble High Court, since the deceased
was self-employed and income has been assessed on notional
basis on minimum wages, addition of income towards future
prospects cannot be made for the purpose of compensation.

Page No.225 of 313
Deceased was aged about 39 years at the time of
accident as per testimony of PW1. In the absence of any
evidence to the contrary, the age of deceased is taken as 39
for the purpose of assessment of compensation and as per
Sarla Verma (Smt.) & Ors. vs. Delhi Transport Corporation &
Anr. (2009) 6 SCC 121, multiplier of 15 would be applicable
for the purpose of assessment of compensation.

(d) Keeping in view the principles as referred in the case
of A. Manavalagan vs. A. Krishnamurthy & Ors. , 2005 ACJ
1992 (supra), since the petitioner is the non-dependent brother
claiming on behalf of the estate, the savings has to be taken 15%
of the income of the deceased for purpose of assessment of
compensation.

(e) Loss of Estate
In the facts and circumstances, loss of estate of the
15% of the income of the deceased applying the multiplier of 15
is computed as Rs.93,690/- {Rs.3,470/- (monthly income) X 12
(months) X 15 (multiplier) X 15%}.

166. Compensation under non-pecuniary heads:

Though a wide discretion in determination of
compensation is given but the amplitude of such powers has to
be exercised in consonance with settled principles and it needs
to be borne in mind that compensation is neither expected to be
windfall or bonanza or source of profit but at the same time
should not be pittance.

Page No.226 of 313
It has been held by the Hon'ble Apex Court in Rajesh
& Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 that the
compensation is to be awarded for a sum of Rs.1 lakh each
towards loss of love and affection and loss of consortium,
Rs.25,000/- towards funeral expenses and Rs.10,000/- towards
loss of estate.
Hon'ble Apex Court awarded a sum of Rs.50,000/- to
each parent for loss of love and affection in M. Mansoor v.
United India Insurance Co. Ltd. , 2013 ACJ 2849 (SC).
Further, interest @ 9% per annum was awarded on
the award amount by the Hon'ble Apex Court in Municipal
Corporation of Delhi v. Association of Victims of Uphaar
Tragedy , 2012 ACJ 48 (SC).
Considering the facts and circumstances since
petitioner lost his brother, he is awarded Rs.50,000/- towards
loss of love and affection and Rs.25,000/- towards funeral
expenses. Further, the petitioner shall be entitled to interest @
9% per annum on the award amount as held by the Hon'ble Apex
Court in Municipal Corporation of Delhi v. Association of
Victims of Uphaar Tragedy , 2012 ACJ 48 (SC).

167. The petitioner/claimant is accordingly entitled to
compensation computed as under:

Loss of estate Rs.93,690/-
Loss of Love and affection Rs.50,000
Funeral Expenses Rs.25,000/-
________________
Total Rs.1,68,690/-
________________
(Rupees One Lakh Sixty Eight Thousand Six Hundred & Ninety Only)

Page No.227 of 313
The claimant/petitioner is also entitled to interest @
9% p.a. from the date of filing of petition i.e. w.e.f. 16.08.2007
till realization.

The amount of interim award, if any, shall however
be deducted from the above amount, if the same has already
been paid to the petitioners.

168. On realization, 25% shall be released to the petitioner
and remaining 75% shall be kept in five equal FDRs with a
nationalised bank for a period of one year, two years, three
years, four years and five years respectively without the facility
of loan, advance or premature withdrawal with release of
quarterly periodical interest in his account.

*******************************************

169. CASE-Y

Suit No.456/11
Unique Case ID No.02401C-0886212007

Atul Kumar Sharma S/o Late Sh.Jagdish Kumar Sharma
Versus
Raj Singh @ Nasir Ali & Ors.

In brief, petitioner was travelling in bus no.DL 1PC
7676 along with other passengers on a pilgrimage tour in
Himachal Pradesh since 17.06.2007 and received injuries in the
accident on 20.06.2007. Petitioner was admitted at Dr. Rajinder
Prasad Medical College, at Tanda District Kangra after the
accident and discharged on the same day. It is further the case of

Page No.228 of 313
the petitioner that subsequent treatment continued at Delhi. It is
further claimed that petitioner was self employed/running a taxi
business in the name of Skylark Services at B-36 West Patel
Nagar and earning about Rs.10,000/- per month. Compensation
is claimed for Rs.5,00,000/-.

170. Vide order dated 09.01.2008 following
consolidated issues were framed by the ld. Predecessor:

(i) Whether the petitioner Baldev Raj, Sanjeev
Gulati, Sita Ram and Jatin Ahuja sustained
fatal injuries. Sh.Baldev Raj Ahuja, Master
Sunny Ahuja, Smt. Saroj Ahuja, Sh.Hari Om
Mahna, Sh.Atul Kumar Sharma, Baby Astha
Mahna, Smt.Shalu Mahna, Sh.Amol Bajaj,
Smt.Bharti Bajaj and Smt. Anu Gulati
sustained injuries as put forth in the petitions
and medical records of the case took place on
account of rash and negligent driving of
Respondent No.1 of bus bearing registration
no. DL 1PC 7676?

(ii) To what amount of compensation the
claimants are entitled to and from whom?

(iii) Relief.

171. In support of the claim, petitioner was examined as
PW1.

Page No.229 of 313
PW1 Atul Kumar sharma testified on the lines of
the claim petition and proved copy of his election I-card
(Ex.PW1/1) and attested copy of MLC (Ex.PW1/2).

During cross-examination, he deposed that driver of
the bus was driving the vehicle at a high speed in a rash and
negligent manner despite being warned by several passengers to
drive carefully. Further, he was awake at the time of the
accident and had sustained injuries on head and lips. He further
stated that he had not filed any proof regarding his income.

172. Issue No. (ii)
To what amount of compensation the claimants are
entitled to and from whom?

The injuries sustained by the petitioner have been
described in the MLC (Ex.PW1/2) as follows:

"1. cut injury on left side of forehead and scalp, 5-6
cm. in length fresh bleeding.
2.C/o pain in chest and back.
Advised X-Ray Chest and dorsolumbar spine
Final opinion to be given after surgical consultation
and Radiologist opinion."

It may be noticed that neither doctor has been

Page No.230 of 313
examined to prove the nature of injuries nor any other treatment
paper has been filed to assess if the nature of injuries was
grievous. However, judicial notice can be taken of the fact that
the petitioner must have remained under trauma and suffered
pain and suffering as a result of injuries sustained in the
accident. Also, expenses must have been incurred on
conveyance from Kangra to Delhi. Considering the facts and
circumstances petitioner is awarded compensation of
Rs.15,000/- towards pain and suffering and injuries sustained in
the accident. Also, a sum of Rs.5,000/- is awarded towards diet
and conveyance.

No separate medical bills have been filed on record
towards medical expenses/treatment.

173. As discussed above, the overall compensation is
tabulated as under:

Loss of wages -NIL-
Pain and suffering Rs.15,000/-
Diet & conveyance Rs.5,000/-
Medical Bills ---NIL---
--------------------
Total Rs.20,000/-
----------------------------

(Rupees Twenty Thousand Only)

The claimant/petitioner is also entitled to interest @
9% p.a. from the date of filing of claim petition i.e. w.e.f.
01.09.2007 till realization.

174. On realization, entire compensation amount along

Page No.231 of 313
with up-to-date interest shall be released to the petitioner.
*********************************************

175. CASE-Z

Suit No.457/11
Unique Case ID No.02401C-1465162008

Sanjay Kumar Jain S/o Late Sh.Deep Chan Jain (Brother)
Rakesh Kumar Jain S/o Late Sh.Deep Chan Jain (Brother)
Versus
Raj Singh @ Nasir Ali & Ors.

As per case of petitioners, their sister late Manjula
Jain aged about 50 years was travelling in bus no.DL 1PC
7676 along with other passengers on a pilgrimage since
17.06.2007 and received fatal injuries in the accident on
20.06.2007. It is further the case of petitioners that the deceased
was employed as Assistant in Central Social Welfare Board,
Govt. of India, B-12, Qutub Institutional Area, New Delhi - 110
016 and was drawing a salary of Rs.16,000/- per month.
Petitioners (Sanjay Kumar Jain aged about 51 years and Rakesh
Kumar Jain aged about 52 years) who are the real brothers of the
deceased claim to be wholly dependent upon the deceased
Manjula Jain. Compensation is claimed for a sum of
Rs.20,00,000/-.

176. Vide order dated 09.01.2008 following issues were
framed by the ld. Predecessor:

Page No.232 of 313
(i) Whether the deceased Manjula Jain had
sustained fatal injuries on 20.06.2007 at about
11.00PM at Bamukan Kentchi More, PS
Dharamshala, HP due to rash and negligent
driving of Respondent No.1 Shri Nasir Ali @
Raj Singh while driving bus bearing
registration no.DL 1 PC 7676?

(ii) Whether the petitioners are entitled to any
compensation? If so, to what amount and from
whom?

(iii) Relief.

177. In support of the claim petition, three witnesses were
examined, namely PW1 Rakesh Kumar Jain, PW2 ASI
Mohinder Singh, P.S. Dharamshala and PW3 Shri S.C. Ahuja,
Assistant, Central Social Welfare Board to prove the salary of
the deceased.

PW1 Rakesh Kumar Jain testified on the lines of
the claim petition and stated that petitioners were wholly
dependent upon the deceased as they are the only legal
representatives/next kith and kin of deceased and there is
nobody to look after them after the death of the deceased. PW1
further proved death certificate of the deceased Manjula Jain
(Ex.PW1/1), election I-card of deceased (Ex.PW1/2), copy of
ration card (Ex.PW1/3), copy of election I-card of deponent

Page No.233 of 313
(Ex.PW1/4), certified copy of FIR (Ex.PW1/5), attested copy of
postmortem (Ex.PW1/6), copy of funeral receipt (Ex.PW1/7),
photocopy of pay slip (Mark A).

During cross examination, he clarified that he is not
an eyewitness to the accident. Further, his other brother is a
teacher. He was residing at the ground floor while his brother
was staying at first floor. He further stated that he had not
placed on record any document that his sister had given any part
of her salary to him or the other brother. He volunteered that
deceased used to withdraw cash and then used to handover to
them. He further deposed that both the brothers are married and
having joint families. He further admitted that in the ration card
(Ex.PW1/3), there was no mention of the families of the brother
as well as deceased sister. He volunteered that in order to get
more ration, separate ration cards were prepared at the same
address. He further stated that he had joined service in 1983.

PW2 ASI Mohinder Singh, PS: Dharamshala is a
common witness examined in all the cases who proved the
attested copies of criminal case record (Ex.PW2/1 colly).

PW3 Shri S.C. Ahuja, Assistant, Central Social
Welfare Board stated that deceased was employed as an
Assistant and proved the Appointment Letter (Ex.PW3/1),
increment orders (Ex.PW3/2 - 11 sheets colly.), copies of pay-
bill register (Ex.PW3/3), arrears of 6 th pay commission
(Ex.PW3/4), salary certificate (Ex.PW3/5) and pay slip for the
month of May, 2007 (Ex.PW3/6).

Page No.234 of 313
178. Issue No. (ii)
To what amount of compensation the
claimants are entitled to and from whom?

Counsel for petitioner contended that the income of
the deceased be assessed at Rs.16,000/- per month and further
addition towards future prospects be made for purpose of
assessment of loss of dependency. Further, after deduction of
1/3 towards personal expenses, the relevant multiplier be
applied. Counsel for the petitioner also referred to judgments
passed by MACT Tribunal, Karkardooma Courts (MAC Petition
No.166F/13 decided by Ms. Ravinder Bedi, PO, MACT on
13.08.2015).

In the present case, it may be noticed that the claim
has been filed by the brothers of the deceased as the only legal
representatives of the deceased and claiming that they were fully
dependent upon the income of the deceased. The petitioners
were aged about 51 & 52 years at the time of filing of the
petition and the deceased was aged about 50 years at the time of
accident. However, it may be observed that during cross-
examination, PW1 Rakesh Kumar Jain admitted that his other
brother is a teacher while he had himself joined service in the
year 1983. He further stated that both the brothers are married
and having joint families. It appears that the ration card in the
name of petitioner no. 2 is also separately made which does not
reflect the family of the other brother. In the facts and
circumstances, it does not appear to be plausible that the

Page No.235 of 313
petitioners were dependent upon the income of the deceased.
Rather, it appears that the petitioners being independently
employed were financially independent and running their own
families after their marriage. As such, there is no cogent
evidence on record to infer that the petitioners were financially
dependent upon the deceased. In the aforesaid circumstances,
I am of the considered opinion that the compensation has to
be calculated for loss to estate and not for loss of dependency
as held in Dinesh Adhlak vs. Pritam Singh & Ors. ILR (2010)
V Delhi 463 (MAC Appeal No.253/07 decided on 15.01.2010
by Hon'ble Mr. Justice J.R. Midha).

Page No.236 of 313
in the case of loss of dependency, whereas the annual
savings of the deceased becomes the multiplicand in the
case of loss to estate. The method of selection of
multiplier is however the same in both cases".

" 20 (v)........Though the quantum of savings will vary
from person to person, there is a need to standardise
the quantum of savings for determining the loss to
estate (where the claimants are not dependents) in the
absence of specific evidence to the contrary. The
quantum of savings can be taken as one-third of the
income of the deceased where the spouses are having a
common establishment and one-fourth where the
spouses are having independent establishments. The
above will apply where the family consists of non-
dependent spouse/children/parents. Where the
claimants are non-dependent brothers/sisters
claiming on behalf of the estate, the savings can be
taken as 15% of the income. The above percentages,
one of course, subject to any specific evidence to the
contrary led by the claimants."

179. In the light of aforesaid principles, the loss to estate
is assessed as under:

(a) Income of Deceased
As per the pay slip for the month of May, 2007
(Ex.PW3/6) Kumari Manjula Jain working as Assistant,
Employee Code 166 was drawing a salary of Rs.15,312/- per
month. The fact that the deceased was working as an Assistant
is also corroborated by the Appointment Letter (Ex.PW3/1) and
other service record Ex.PW3/2 & Ex.PW3/3. The deceased is
also stated to have received arrears of 6 th pay commission as per
Ex.PW3/4 & Ex.PW3/5 for Rs.86,056/- for the period
01.01.2006 to 20.06.2007. In the facts and circumstances, the
income of the deceased for purpose of assessment of

Page No.237 of 313
compensation is taken as Rs.15,313/- as per pay slip for the
month of May, 2007 (Ex.PW3/6).

(b) If addition in income towards future prospects is to
be made
As per the voter's I-card of deceased Manjula Jain, as
on 0.01.1994 she was aged about 38 years. In view of above,
her age on the date of accident was above 51 years.

In Reshma Kumari & Ors. v. Madan Mohan & Anr. ,
(2013) 9 SCC 65 while approving the ratio with regard to future
prospects in Sarla Verma (Smt.) & Ors. (supra) and relying on
General Manager, Kerala State Road Transport Corporation,
Trivandrum v. Susamma Thomas (Mrs.) and Ors. (1994) 2
SCC 176; Sarla Dixit v. Balwant Yadav , ( 1996) 3 SCC 179 and
Abati Bezbaruah v. Dy. Director General, Geological Survey of
India & Anr. , 2003 (3) SCC 148, the Hon'ble Apex Court held
as under:-

"38. With regard to the addition to income for future
prospects, in Sarla Verma [Sarla Verma v. DTC, (2009)
6 SCC 121 : (2009) 2 SCC (Civ) 770 :

(2009) 2 SCC (Cri) 1002], this Court has noted the ear-
lier decisions in Susamma Thomas [Kerala SRTC v.
Susamma Thomas, (1994) 2 SCC 176 : 1994 SCC (Cri)
335], Sarla Dixit [(1996) 3 SCC 179] and Abati
Bezbaruah [Abati Bezbaruah v. Geological Survey of
India, (2003) 3 SCC 148 : 2003 SCC (Cri) 746] and in
para 24 of the Report held as under: (Sarla Verma case
[Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2
SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] , SCC p.

134):

"24. ... In view of the imponderables and uncertainties,
we are in favour of adopting as a rule of thumb, an ad-
dition of 50% of actual salary to the actual salary in-

Page No.238 of 313
come of the deceased towards future prospects, where
the deceased had a permanent job and was below 40
years. (Where the annual income is in the taxable
range, the words „actual salary‟ should be read as
„actual salary less tax‟). The addition should be only
30% if the age of the deceased was 40 to 50 years.
There should be no addition, where the age of the de-
ceased is more than 50 years. Though the evidence may
indicate a different percentage of increase, it is
necessary to standardise the addition to avoid different
yardsticks being applied or different methods of calcu-
lation being adopted. Where the deceased was self-em-
ployed or was on a fixed salary (without provision for
annual increments, etc.), the courts will usually take
only the actual income at the time of death. A departure
therefrom should be made only in rare and exceptional
cases involving special circumstances."

39. The standardization of addition to income for future
prospects shall help in achieving certainty in arriving
at appropriate compensation. We approve the method
that an addition of 50% of actual salary be made to the
actual salary income of the deceased towards future
prospects where the deceased had a permanent job and
was below 40 years and the addition should be only
30% if the age of the deceased was 40 to 50 years and
no addition should be made where the age of the de-
ceased is more than 50 years. Where the annual income
is in the taxable range, the actual salary shall mean ac-
tual salary less tax. In the cases where the deceased
was self-employed or was on a fixed salary without pro-
vision for annual increments, the actual income at the
time of death without any addition to income for future
prospects will be appropriate. A departure from the
above principle can only be justified in extraordinary
circumstances and very exceptional cases."

In the instant case, having regard to the dicta in Sarla
Varma 's case (supra) since the deceased aged about 51 years
was permanently employed, addition of 15% towards future
prospects is to be made for purpose of assessment of income.
The income for purpose of compensation is accordingly

Page No.239 of 313
computed as Rs.15,313/- + 15% = Rs.17,609.95/- per month
(Rounded off to Rs.17,610/-).

The deceased was aged about 51 years at the time of
accident. As per Sarla Verma (Smt.) & Ors. vs. Delhi
Transport Corporation & Anr. (2009) 6 SCC 121, multiplier of
11 would be applicable for the purpose of assessment of
compensation.

(d) Keeping in view the principles as referred in the case
of A. Manavalagan vs. A. Krishnamurthy & Ors. , 2005 ACJ
1992 (supra), since the petitioners are the non-dependent
brothers claiming on behalf of the estate, the savings has to be
taken 15% of the income of the deceased for purpose of
assessment of compensation.

(e) Loss of Estate
In the facts and circumstances, loss of estate at 15%
of the income of the deceased applying the multiplier of 11 is
computed as Rs.3,48,678/- {Rs.17,610/- (monthly income after
addition of 15% towards future prospects) X 12 (months) X 11
(multiplier) X 15%}. The same is rounded off to Rs.3,49,000/-.

180. Compensation under non-pecuniary heads:

Though a wide discretion in determination of
compensation is given but the amplitude of such powers has to
be exercised in consonance with settled principles and it needs

Page No.240 of 313
to be borne in mind that compensation is neither expected to be
windfall or bonanza or source of profit but at the same time
should not be pittance.
It has been held by the Hon'ble Apex Court in Rajesh
& Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 that the
compensation is to be awarded for a sum of Rs.1 lakh each
towards loss of love and affection and loss of consortium,
Rs.25,000/- towards funeral expenses and Rs.10,000/- towards
loss of estate.
Hon'ble Apex Court awarded a sum of Rs.50,000/- to
each parent for loss of love and affection in M. Mansoor v.
United India Insurance Co. Ltd. , 2013 ACJ 2849 (SC). Further,
interest @ 9% per annum was awarded on the award amount by
the Hon'ble Apex Court in Municipal Corporation of Delhi v.
Association of Victims of Uphaar Tragedy , 2012 ACJ 48 (SC).
Considering the facts and circumstances, petitioners
(who are the real brothers of deceased) are awarded Rs.50,000/-
each towards loss of love and affection and Rs.25,000/- towards
funeral expenses. Further, the petitioners shall be entitled to
interest @ 9% per annum on the award amount as held by the
Hon'ble Apex Court in Municipal Corporation of Delhi v.
Association of Victims of Uphaar Tragedy , 2012 ACJ 48 (SC).

181. The petitioners/claimants are accordingly entitled
to compensation computed as under:

Loss of estate Rs.3,48,678/-
(Rounded off to Rs.3,49,000/-)

Page No.241 of 313
Loss of Love and affection (Rs.50,000/- each) Rs.1,00,000/-

Funeral Expenses Rs.25,000/-
________________
Total Rs.4,74,000/-
________________
(Rupees Four Lakh Seventy Four Thousand Only)

The claimants/petitioners are also entitled to interest
@ 9% p.a. from the date of filing of petition i.e. w.e.f.
16.08.2007 till realization.

The amount of interim award, if any, shall however
be deducted from the above amount, if the same has already
been paid to the petitioners.

182. For purpose of disbursement, petitioner no. 1 & 2
shall be entitled to 50% each of the award amount along with
proportionate interest thereon.

On realization, 25% shall be released to each of the
petitioners and remaining 75% shall be kept in five equal FDRs
with a nationalised bank for a period of one year, two years,
three years, four years and five years without the facility of
loan, advance or premature withdrawal with release of
quarterly periodical interest in their respective account.

****************************************

183. CASE-Z1

Suit No.259/11
Unique Case ID No.02401C-0886502007
Sh. Hari Om Mahna S/o Sh. Shadi Lal Mahna
Versus

Page No.242 of 313
Raj Singh @ Nasir Ali & Ors.

In brief, petitioner was travelling in bus no.DL 1PC
7676 along with his wife Smt. Shalu Mahna and daughter
Aastha Mahna on a pilgrimage since 17.06.2007 and received
grievous injuries in the accident on 20.06.2007. Wife and
daughter of petitioner also suffered injuries and separate claim
petitions bearing Suit No.257/11 & 260/11 have been preferred
on their behalf. Petitioner was admitted at Dr.Rajender Prasad
Government College Hospital, Tanda, District Kangra, HP after
the accident on 20.06.2007 and thereafter shifted to Dr.RML
Hospital, New Delhi on 22.06.2007 wherein he remained
admitted till 25.06.2007. It is further the case of petitioner that
he was employed at AKM Alliance, Janakpuri, Delhi and
earning Rs.10,000/- per month. Compensation is claimed for a
sum of Rs.40,00,000/-.

184. On the pleadings of the parties, following issues were
framed for consideration vide order dated 09.01.2008 by ld.
Predecessor:-

Page No.243 of 313
and medical records of the case took place on
account of rash and negligent driving of
Respondent No.1 of bus bearing registration
no.DL 1 PC 7676?

(ii) To what amount of compensation the
claimants are entitled to and from whom?

(iii) Relief.

185. In support of the claim petition preferred in Suit
No.257/11 in respect of injuries sustained by Baby Astha
Mahna; in respect of injuries suffered by Hari Om Mahna (Suit
No.259/11) and in respect of injuries suffered by Shalu Mahna
(Suit No.258/11), four witnesses were examined as placed in
Suit No.259/11 (Hari Om Mahna) namely, PW1 Hari Om
Mahna, PW2 Shalu Mahna, PW3 Dr. Deepak Verma and PW4
Dr. Anurag Jain. PW3 Dr. Deepak Verma and PW4 Dr. Anurag
Jain proved the disability certificate in respect of injuries
sustained by Hari Om Mahna and Shalu Mahna respectively.

Page No.244 of 313
(Ex.PW1/2 colly 15 sheets), photocopy of his passport
(Ex.PW1/3), photocopy of school I-card of Astha Mahna
(Ex.PW1/4), attested copy of FIR (Ex.PW1/5), attested
photocopies of MLCs of Hari Om Mahna (Ex.PW1/6) and salary
slip (Mark A). He further proved the disability certificate issued
by Deen Dayal Upadhyay Hospital (Ex.PW1/7) and testified that
he had suffered loss of vision. He further testified that he was
employed at AKM Alliance and was earning about Rs.10,000/-
per month.

He further testified that Baby Astha Mahna, who was
a student also sustained injuries in the accident as stated in the
affidavit.

On cross-examination, he deposed that he had not
filed any record regarding appointment letter or to show his
educational qualifications. Further, he had not placed any record
of salary received by cheque. However, he clarified that he used
to receive salary by cash without any signatures. He further
admitted that he had taken maximum treatment from Dr. R.M.L.
Hospital and documents were not placed to show the expenses
incurred on maid servant/doctor. He further admitted that he
was working with the same employer after the accident and his
salary had also increased after the accident. Further, he was not
taking the help of others for doing routine work. He also
deposed that there were 29-30 passengers in the bus apart from
5-6 children and was sitting on the first seat of the bus.

PW2 Shalu Mahna testified on the lines of claim petition
(Suit No.260/11) and further relied upon original medical

Page No.245 of 313
treatment bills (Ex.PW2/1 collectively 15 sheets), discharge
summary and entire treatment record (Ex.PW2/2-collectively 19
sheets), income proof regarding employment (Ex.PW2/3),
photocopy of passport (Ex.PW2/4), attested copy of FIR
(Ex.PW2/5) and attested photocopies of MLC (Ex.PW2/6).

PW3 Dr. Deepak Verma proved the disability
certificate in respect of petitioner Hariom Mahna (Ex.PW1/7
with respect to Suit No.259/11). He further testified that the
petitioner had suffered 20% visual permanent disability.

On cross-examination, he testified that Hari Om
Mahna was not under his treatment. Further, Hari Om Mahna
can perform all normal functions but his ability to do has been
reduced as compared to a normal person. He further deposed
that he could not say about the functional disability and denied
the suggestion that petitioner had not suffered any visual
impairment and is performing all normal functions.

PW4 Dr.Anurag Jain proved the disability
certificate of Shalu Mahna (Ex.PW4/1 with respect to Suit
No.259/11) and stated that she had suffered 12% temporary
physical disability in relation to left lower limb.

On cross-examination, he stated that patient is
having pain and deformity in left ankle and has difficulty in
prolong walking. However, petitioner will not have any
problem in standing. He further clarified that the disability is
temporary at the time of examination which may change in
future and may lead to degenerative arthritis.

Page No.246 of 313
186. Issue No. (ii)
Whether the petitioner is entitled to any
compensation? If so to what amount and from
whom?

Page No.247 of 313
R.D. Hattangadi v. Pest Control (India) (P) Ltd. , 1995 (1)
SCC 551 and Baker v. Willoughby, 1970 AC 467.

5. The heads under which compensation is awarded in
personal injury cases are the following:

Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalisation,
medicines, transportation, nourishing food, and
miscellaneous expenditure.

(ii) Loss of earnings (and other gains) which the injured
would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent
disability.

(iii) Future medical expenses.

Non-pecuniary damages (General damages)
(iv) Damages for pain, suffering and trauma as a
consequence of the injuries.

(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal
longevity).

of prospects of marriage) and loss of expectation of life."

Page No.248 of 313
Now the important factors relevant for calculation of
compensation consequent to accidental injuries sustained by the
petitioner may be considered.

(a) Criteria for taking income of the petitioner
Counsel for petitioner contended that at the time of
accident, petitioner Hari Om Mahna was employed with A.K.M.
Alliance, 703 Vishal Tower, Janakpuri, Delhi and earning
Rs.10,000/- per month. Reliance was also placed upon
photocopies of payment advice for the month of January &
February, 2006 (Mark A) issued by Team HR Services Pvt. Ltd.

It may be observed that apart from filing of mere
photocopies of payment advice, no witness from the concerned
employer was examined on behalf of the petitioner to prove the
salary. Further, petitioner during his cross-examination admitted
that he had not filed any record relating to appointment letter
and educational qualifications. In the facts and circumstances,
bald statement of the petitioner on the point of income/salary
cannot be accepted and the same is assessed on notional basis as
per minimum wages of an unskilled worker as notified by
Government of NCT of Delhi for the relevant period @

Page No.249 of 313
Rs.3,470/- per month for purpose of assessment of
compensation.

(b) If addition in income towards future prospects is to
be made
Petitioners have claimed that addition towards future
prospects to the extent of 50% be made considering the fact that
deceased was aged about 38 years but the same has been
vehemently opposed by counsel for Insurance Company.

Page No.250 of 313
such time the law on the subject of future prospects for
those who are "self-employed" or engaged in gainful
employment at a "fixed salary" is clarified by a larger
bench of the Supreme Court".

In view of aforesaid legal position as settled by the
Hon'ble High Court, since the petitioner was not
permanently employed and income has been assessed on
notional basis on minimum wages, addition of income
towards future prospects cannot be made for the purpose of
compensation.

(c) Functional Disability
Counsel for petitioner urged that for purpose of
assessment of compensation, functional disability may be
considered as 50% though the same was assessed as 20% by the
Medical Board as per Disability Certificate dated 02.01.2012
(Ex.PW1/7).

On the other hand, counsel for insurance company
contended that there was no functional disability since during
cross-examination PW1 stated that he had been working with
the same employer and his salary had also increased after the
accident. Further, petitioner also deposed that he was not taking
help of others for doing all routine work.

Page No.251 of 313
permanent disability, an injured may be completely
incapacitated to carry out his vocation and as such the functional
disability may be more than the actual disability suffered by the
injured/victim. Hon'ble Supreme Court of India has elucidated
with an example that if the left hand of claimant, who is driver
by profession is amputated, the actual loss of earning capacity
may be virtually 100%.

"14. Ascertainment of the effect of the permanent
disability on the actual earning capacity involves three
steps. The Tribunal has to first ascertain what
activities the claimant could carry on in spite of the
permanent disability and what he could not do as a
result of the permanent disability (this is also relevant
for awarding compensation under the head of loss of
amenities of life). The second step is to ascertain his
avocation, profession and nature of work before the
accident, as also his age. The third step is to find out
whether (i) the claimant is totally disabled from
earning any kind of livelihood, or (ii) whether in spite
of the permanent disability, the claimant could still
effectively carry on the activities and functions, which
he was earlier carrying on, or (iii) whether he was
prevented or restricted from discharging his previous
activities and functions, but could carry on some other
or lesser scale of activities and functions so that he
continues to earn or can continue to earn his
livelihood. For example, if the left hand of a claimant
is amputated, the permanent physical or functional
disablement may be assessed around 60%. If the
claimant was a driver or a carpenter, the actual loss of
earning capacity may virtually be hundred percent, if
he is neither able to drive or do carpentry. On the
other hand, if the claimant was a clerk in government
service, the loss of his left hand may not result in loss of
Page No.252 of 313
employment and he may still be continued as a clerk as
he could perform his clerical function; and in that event
the loss of earning capacity will not be 100% as in the
case of a driver or carpenter, nor 60% which is the
actual physical disability, but far less. In fact, there
may not be any need to award any compensation under
the head of 'loss of future earnings', if the claimant
continues in government service, though he may be
awarded compensation under the head of loss of
amenities as a consequence of losing his hand.
Sometimes the injured claimant may be continued in
service, but may not found suitable for discharging the
duties attached to the post or job which he was earlier
holding, on account of his disability, and may therefore,
be shifted to some other suitable but lesser post with
lesser emoluments, in which case there should be a
limited award under the head of loss of future earning
capacity, taking note of the reduced earning capacity.
It may be noted that when compensation is awarded by
treating the loss of future earning capacity as 100% (or
even anything more than 50%), the need to award
compensation separately under the head of loss of
amenities or loss of expectation of life may disappear
and as a result, only a token or nominal amount may
have to be awarded under the head of loss of amenities
or loss of expectation of life, as otherwise there may be
a duplication in the award of compensation. Be that as
it may."

In the instant case, petitioner has relied upon
Disability Certificate dated 02.01.2012 (Ex.PW1/7) issued by
Medical Board, Deen Dayal Upadhyay Hospital, New Delhi
wherein it has been observed as under:

"..........is suffering from visual disability 20% (Twenty Percent)
Permanent.
................................"
In the aforesaid context, testimony of PW3 Dr.
Deepak Verma may also be noticed whereby he deposed that the
petitioner can perform all normal functions but his ability to do

Page No.253 of 313
has been reduced as compared to a normal person. He further
denied the suggestion that the petitioner had not suffered from
any visual impairment.

I am of the considered opinion that testimony of
PW3 in the light of Disability Certificate clearly reflects that
ability of petitioner to perform work as compared to a normal
person has been reduced even if he was performing functions
without any assistance. Further, merely because the salary in
the present employment had increased, does not lead to an
inference that the visual ability of the petitioner had not been
affected. The prospects of the petitioner to perform the jobs
requiring 100% visual ability definitely reduced by 20% which
would affect his earning capacity in any other job. In the facts
and circumstances and the principles laid down in Raj Kumar
Vs. Ajay Kumar , (supra), I am inclined to consider the
functional disability as 20% for purpose of assessment of
compensation qua the entire body.

As per copy of Passport (Ex.PW1/3), date of birth of
the petitioner is 05.12.1968. As such, the age of petitioner on
the date of accident was about 38 years 06 months 15 days
approximately. As per Sarla Verma & Ors. v/s Delhi Transport
Corporation 2009, ACJ 1298, the multiplier of 15 is applicable
for the purpose of assessment of compensation.

The loss of earning capacity is accordingly calculated
as Rs.1,24,920/- {i.e. Rs.3,470/- (notional income per month) X
12 (months) X 20% (functional disability) X 15 (applicable
multiplier according to age)}.

Page No.254 of 313
(d) Loss of Income on account of accident
As per medical record, immediately after the
accident, petitioner was admitted at Dr. Rajendra Prasad Govt.
Medical College Hospital, Kangra, Tanda (HP) on 21.06.2007
and discharged on the same day. Thereafter, petitioner was
shifted to Dr. R.M.L. Hospital, New Delhi wherein he remained
admitted from 22.06.2007 to 25.06.2007 and even thereafter
remained under continuous treatment as he suffered fracture
base of acromia right scapula, left vitrus eye # zygoma.

Considering the nature of injuries, treatment
undertaken, disability suffered by the petitioner and period of
admission as indoor patient, it can be reasonably presumed that
on account of injuries and disability, the petitioner may not have
been in a position to attend his work for a period of about eight
months as he continued to obtain medical treatment till
19.03.2008.

In the facts and circumstances, petitioner is
accordingly awarded damages of Rs.27,760/- for a period of six
months for which he was not able to perform his job i.e.
{Rs.3,470/- (notional income for one month) X 08 months}.

(e) Loss of amenities and loss of expectation of life
due to Permanent Disability
The amount of compensation towards amenities
should be to bring amenities and restoration of health to the
petitioner. In the facts and circumstances, considering the
permanent visual disability of 20% suffered by the petitioner
which is unlikely to improve, he is awarded a sum of

Page No.255 of 313
Rs.1,00,000/- (Rupees One Lakh Only) on account of loss of
amenities and loss of expectation of life due to permanent
disability.

(f) Pain and Suffering & Mental Agony
As the petitioner suffered permanent visual disability
of 20% and remained incapacitated from performing normal
activities throughout his life, he is awarded a sum of
Rs.1,00,000/- Rupees One Lakh only) towards pain and
suffering and mental agony.

(g) Medicines and Medical Treatment
Counsel for petitioner contended that an amount of
Rs.3,824/- has been claimed towards the medical bills/treatment
by the petitoiner which has not been disputed on behalf of
insurance company.

Accordingly, petitioner is awarded a sum of
Rs.3,824/- towards medical bills/treatment.

(h) Conveyance & Special Diet
Though no conveyance bills have been filed on
record by the petitioner but it can be presumed that petitioner
must have spent some amount towards conveyance during the
period of treatment and for being shifted from Kangra to Delhi.
In view of above, an amount of Rs.20,000/- (Rupees Twenty
Thousand Only) is awarded towards conveyance.

Petitioner is further awarded an amount of

Page No.256 of 313
Rs.20,000/- (Rupees Twenty Thousand Only) towards special
diet.

(i) Attendant Charges
Hon'ble High Court of Delhi in DTC V/s Lalit AIR
1981 Delhi 558 held that the victim is entitled to compensation
even if no attendant is hired as some family member renders
gratuitous services.

Since the petitioner/injured had suffered fracture as
well as visual impairment resulting in disability, he would have
required the constant aid of an attendant for the active period of
treatment which has been assessed as eight months.

I am of the considered view that even if the
gratuitous services were rendered by some or the other family
members, the claimant cannot be deprived of its benefit on the
gain of the tortfeasor. Considering the nature of injuries, the
compensation of Rs.24,000/- (Rupees Twenty Four Thousand
Only) is awarded in lump-sum towards the attendant
charges/gratuitous services rendered by the family members (i.e.
Rs.3,000/- X 08 months).

187. As discussed above, the overall compensation is
tabulated as under:

Page No.257 of 313
Loss of Earning Capacity Rs.1,24,920/-
Loss of Income on Account of accident Rs.27,760/-
Loss of amenities and loss of expectation of life Rs.1,00,000/-
Pain and Suffering Rs.1,00,000/-
Medicines & Medical Treatment Rs.3,824/-
Conveyance Charges Rs.20,000/-
Special Diet Rs.20,000/-
Attendant Charges Rs.24,000/-
-----------------
Total Rs.4,20,504/-
____________
(Rounded off to Rs.4,21,000/-)
(Rupees Four Lakh Twenty One Thousand only )

The claimant/petitioner is also entitled to interest @
9% p.a. from the date of filing of claim petition i.e. w.e.f.
01.09.2007.

188. On realization, Rs.2,00,000/- (Rupees Two Lakh
Only) shall be released to the petitioner and remaining amount
shall be fixed deposited in seven fixed deposits of equal amounts
in his name with a nationalized bank for a period of one year,
two years, three years, four years, five years, six years and seven
years without the facility of loan, advance or premature
withdrawal with release of quarterly interest in his account.

*****************************************

189. CASE-Z2

Suit No.257/11
Unique Case ID No.02401C-0886322007

Baby Aastha Mahna D/o Sh. Hari Om Mahna

Page No.258 of 313
Versus
Raj Singh @ Nasir Ali & Ors.

In brief, Baby Aastha (student) aged about 07 years
was travelling in bus no.DL 1PC 7676 along with her parents
Sh.Hariom Mahna and Smt. Shalu Mahna on a pilgrimage since
17.06.2007 and received severe injuries in the accident on
20.06.2007. Parents of the petitioner also suffered injuries and
separate claim petitions bearing Suit No.260/11 & 259/11 have
been preferred. Petitioner was admitted at Dr.Rajender Prasad
Government College Hospital, Tanda, District Kangra, HP on
20.06.2007 after the accident and discharged on the same day. It
is further claimed that petitioner was further treated at Delhi and
a sum of Rs.10,000/- had been incurred on her treatment.
Compensation is claimed for a sum of Rs.2,00,000/-.

190. On the pleadings of the parties, following issues were
framed for consideration vide order dated 09.01.2008 by ld.
Predecessor :-

(i) Whether the petitioner Baldev Raj, Sanjeev
Gulati, Sita Ram and Jatin Ahuja sustained
fatal injuries. Sh.Baldev Raj Ahuja, Master
Sunny Ahuja, Smt. Saroj Ahuja, Sh.Hari Om
Mahna, Sh.Atul Kumar Sharma, Baby Astha
Mahna, Smt.Shalu Mahna, Sh.Amol Bajaj,
Smt.Bharti Bajaj and Smt. Anu Gulati
sustained injuries as put forth in the petitions
and medical records of the case took place on

Page No.259 of 313
account of rash and negligent driving of
Respondent No.1 of bus bearing registration
no.DL 1 PC 7676?

(ii) To what amount of compensation the
claimants are entitled to and from whom?

(iii) Relief.

191. In support of the claim petition preferred in Suit
No.257/11 in respect of injuries sustained by Baby Astha
Mahna; in respect of injuries suffered by Hari Om Mahna (Suit
No.259/11) and in respect of injuries suffered by Shalu Mahna
(Suit No.258/11), four witnesses were examined as placed in
Suit No.259/11 namely, PW1 Hari Om Mahna, PW2 Shalu
Mahna, PW3 Dr. Deepak Verma and PW4 Dr. Anurag Jain. PW3
Dr. Deepak Verma and PW4 Dr. Anurag Jain proved the
disability certificate in respect of injuries sustained by Hari Om
Mahna and Shalu Mahna respectively.

PW1 Hari Om Mahna led his examination-in-chief
by way of affidavit in respect of the accidental injuries received
by him (in Suit No.259/11) and injuries received by his
daughter Baby Aastha Mahna (in Suit No.257/11). He testified
on the lines of claim petition and further proved original bills
regarding his treatment (Ex.PW1/1 colly 8 sheets), discharge
summary and entire treatment record of Hari Om Mahna
(Ex.PW1/2 colly 15 sheets), photocopy of his passport
(Ex.PW1/3), photocopy of school I-card of Astha Mahna

Page No.260 of 313
(Ex.PW1/4), attested copy of FIR (Ex.PW1/5), attested
photocopies of MLCs of Hari Om Mahna (Ex.PW1/6) and salary
slip (Mark A). He further proved the disability certificate issued
by Deen Dayal Upadhyay Hospital (Ex.PW1/7) and testified that
he had suffered loss of vision. He further testified that he was
employed at AKM Alliance and was earning about Rs.10,000/-
per month.

He further testified that Baby Astha Mahna, who was
a student also sustained injuries in the accident as stated in the
affidavit.

Page No.261 of 313
collectively 19 sheets), income proof regarding employment
(Ex.PW2/3), photocopy of passport (Ex.PW2/4), attested copy
of FIR (Ex.PW2/5) and attested photocopies of MLC
(Ex.PW2/6).

Page No.262 of 313
192. Issue No. (ii)
Whether the petitioner is entitled to any
compensation? If so to what amount and from
whom?

The injuries sustained by Baby Astha have been
described in the MLC as placed in Suit No.307/11 as follows:

"1. Abrasion on rt. thigh 3X4 cm. in size. Red in
colour.
Further, the injury was opined to be simple in
nature."

Judicial notice can be taken of the fact that the
petitioner Baby Astha must have remained under trauma and
suffered pain and suffering as a result of falling of the bus in the
valley. Also, expenses must have been separately incurred on
conveyance from Kangra to Delhi since both her parents had
suffered severe grievous injuries. Considering the facts and
circumstances, petitioner is awarded compensation of
Rs.15,000/- towards pain & suffering. Also, a sum of Rs.5,000/-
is awarded towards diet and conveyance.

193. As discussed above, the overall compensation is
tabulated as under:

Page No.263 of 313
Loss of wages -NIL-
Pain and suffering Rs.15,000/-
Diet & conveyance Rs.5,000/-
___________
TOTAL Rs.20,000/-
__________
(Rupees Twenty Thousand Only)

The claimant/petitioner is also entitled to interest @
9% p.a. from the date of filing of claim petition i.e. w.e.f.
01.09.2007 till realization.

194. Since the injured is a minor, on realization, entire
compensation amount along with up-to-date interest shall be
fixed deposited in the name of Baby Astha Mahna with a
nationalised bank upto the period till she attains the age of
majority, without facility of advance, loan or premature
withdrawal with release of periodical interest in the account of
Shri Hari Om Mahna (father of Baby Astha) for benefit of
minor.

****************************************

195. CASE-Z3

Suit No.260/11
Unique Case ID No.02401C-088432007

Shalu Mahna W/o Sh.Hari Om Mahna
Versus
Raj Singh @ Nasir Ali & Ors.

In brief, petitioner was travelling in bus no.DL 1PC

Page No.264 of 313
7676 along with her husband Hari Om Mahna and daughter
Aastha Mahna on a pilgrimage since 17.06.2007 and received
grievous injuries in the accident on 20.06.2007. Husband and
daughter of petitioner also suffered injuries and separate claim
petitions bearing Suit No.259/11 & 257/11 have been preferred
on their behalf . Petitioner was initially admitted at Dr.Rajender
Prasad Government College Hospital, Tanda, District Kangra,
HP after the accident and thereafter remained admitted at Dr.
R.M.L. Hospital, Delhi from 26.06.2007 to 29.06.2007. It is
further the case of petitioner that she was employed as a teacher
at Nava Hind Educational Society, Rohtak Road, New Delhi and
earned about Rs.5,200/- per month. Compensation is claimed for
a sum of Rs.10,00,000/-.

196. On the pleadings of the parties, following issues were
framed for consideration vide order dated 09.01.2008 by ld.
Predecessor:-

(i) Whether the petitioner Baldev Raj, Sanjeev
Gulati, Sita Ram and Jatin Ahuja sustained
fatal injuries. Sh.Baldev Raj Ahuja, Master
Sunny Ahuja, Smt. Saroj Ahuja, Sh.Hari Om
Mahna, Sh.Atul Kumar Sharma, Baby Astha
Mahna, Smt.Shalu Mahna, Sh.Amol Bajaj,
Smt.Bharti Bajaj and Smt. Anu Gulati
sustained injuries as put forth in the petitions
and medical records of the case took place on
account of rash and negligent driving of
Respondent No.1 of bus bearing registration

Page No.265 of 313
no.DL 1 PC 7676?

(ii) To what amount of compensation the
claimants are entitled to and from whom?

(iii) Relief.

197. In support of the claim petition preferred in Suit
No.257/11 in respect of injuries sustained by Baby Astha
Mahna; in respect of injuries suffered by Hari Om Mahna (Suit
No.259/11) and in respect of injuries suffered by Shalu Mahna
(Suit No.258/11), four witnesses were examined as placed in
Suit No.259/11 (Hari Om Mahna) namely PW1 Hari Om Mahna,
PW2 Shalu Mahna, PW3 Dr. Deepak Verma and PW4 Dr.
Anurag Jain. PW3 Dr. Deepak Verma and PW4 Dr. Anurag Jain
proved the disability certificate in respect of injuries sustained
by Hari Om Mahna and Shalu Mahna respectively.

Page No.266 of 313
slip (Mark A). He further proved the disability certificate issued
by Deen Dayal Upadhyay Hospital (Ex.PW1/7) and testified that
he had suffered loss of vision. He further testified that he was
employed at AKM Alliance and was earning about Rs.10,000/-
per month.

He further testified that Baby Astha Mahna, who was
a student also sustained injuries in the accident as stated in the
affidavit.

PW2 Shalu Mahna testified on the lines of claim
petition (Suit No.260/11) and further relied upon original
medical treatment bills (Ex.PW2/1 collectively 15 sheets),
discharge summary and entire treatment record (Ex.PW2/2-
collectively 19 sheets), income proof regarding employment
(Ex.PW2/3), photocopy of passport (Ex.PW2/4), attested copy

Page No.267 of 313
of FIR (Ex.PW2/5) and attested photocopies of MLC
(Ex.PW2/6).

198. Issue No. (ii)
Whether the petitioner is entitled to any

Page No.268 of 313
compensation? If so to what amount and from
whom?

5. The heads under which compensation is awarded in

Page No.269 of 313
personal injury cases are the following:

Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalisation,
medicines, transportation, nourishing food, and
miscellaneous expenditure.

(iii) Future medical expenses.

Non-pecuniary damages (General damages)
(iv) Damages for pain, suffering and trauma as a
consequence of the injuries.

(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal
longevity).

of prospects of marriage) and loss of expectation of life."

Now the important factors relevant for calculation of
compensation consequent to accidental injuries sustained by the

Page No.270 of 313
petitioner may be considered.

(a) Criteria for taking income of the petitioner
Counsel for petitioner contended that at the time of
accident, petitioner was employed at Nava Hind Educational
Society, Rohtak Road, New Delhi as a teacher and earning about
Rs.5,140/- per month. Reliance was further placed upon a
certificate issued by Nava Hind Educational Society, Rohtak
Road, New Delhi (Ex.PW2/3).

The certificate (Ex.PW2/3) filed on behalf of the
petitioner has not been disputed by the respondents. Even
otherwise, the minimum salary notified by the Govt. of NCT of
Delhi for a matriculate at the relevant time was Rs.3,918/- per
month. The salary claimed by the petitioner does not appear to
be excessive in any manner and her statement to aforesaid extent
cannot be disbelieved in the light of the certificate issued by
Nava Hind Educational Society, Rohtak Road, New Delhi
(Ex.PW2/3). In the facts and circumstances, the income of the
petitioner is assessed at Rs.5,140/- per month for purpose of
compensation.

(b) If addition in income towards future prospects is to

Page No.271 of 313
be made
Petitioner has claimed that addition towards future
prospects to the extent of 50% be made considering the fact that
deceased was aged about 31 years but the same has been
vehemently opposed by counsel for Insurance Company.

Page No.272 of 313
In the instant case, in view of aforesaid legal
position as settled by the Hon'ble High Court, since the
petitioner was not permanently employed, addition of
income towards future prospects cannot be made for the
purpose of compensation.

(c) Functional Disability
Counsel for petitioner urged that for purpose of
assessment of compensation, disability may be considered at
12% as assessed by the Medical Board as per Disability
Certificate dated 16.01.2012 (Ex.PW4/1) whereby it was
observed to be a case of post traumatic malunited bimallelor
fracture of left ankle with temporary physical disability of
12% in relation to left lower limb.

On the other hand, counsel for insurance company
contended that there was no functional disability as revealed
from cross-examination of PW Dr. Anurag Jain who deposed
that the patient is having pain and deformity in left ankle and
had difficulty in prolong walking but will not have any problem
in standing. He further pointed out that the disability was only
temporary at the time of examination.

Page No.273 of 313
disability may be more than the actual disability suffered by the
injured/victim. Hon'ble Supreme Court of India has elucidated
with an example that if the left hand of claimant, who is driver
by profession is amputated, the actual loss of earning capacity
may be virtually 100%.

Page No.274 of 313
actual physical disability, but far less. In fact, there
may not be any need to award any compensation under
the head of 'loss of future earnings', if the claimant
continues in government service, though he may be
awarded compensation under the head of loss of
amenities as a consequence of losing his hand.
Sometimes the injured claimant may be continued in
service, but may not found suitable for discharging the
duties attached to the post or job which he was earlier
holding, on account of his disability, and may therefore,
be shifted to some other suitable but lesser post with
lesser emoluments, in which case there should be a
limited award under the head of loss of future earning
capacity, taking note of the reduced earning capacity.
It may be noted that when compensation is awarded by
treating the loss of future earning capacity as 100% (or
even anything more than 50%), the need to award
compensation separately under the head of loss of
amenities or loss of expectation of life may disappear
and as a result, only a token or nominal amount may
have to be awarded under the head of loss of amenities
or loss of expectation of life, as otherwise there may be
a duplication in the award of compensation. Be that as
it may."

In the instant case, in the initial discharge card
prepared at Rajender Prasad Govt. Medical College, Kangra
dated 21.06.2007, the petitioner was stated to have suffered
fracture dislocation left ankle. The petitioner was further treated
at Dr. R.M.L. Hospital on 26.06.2007. Petitioner has further
relied upon Disability Certificate dated 16.01.2012 (Ex.PW4/1)
issued by Medical Board, Deen Dayal Upadhyay Hospital,
Govt. of NCT of Delhi wherein it has been observed as under:

"..........A case of post traumatic malunited bimalleolar fracture
of left ankle with temporary physical disability of 12% (Twelve)
in relation to left lower-limb.
This disability is temporary in nature.........."

Page No.275 of 313
In the aforesaid context, testimony of PW4 Dr.
Anurag Jain, CMO, DDU Hospital may be noticed whereby he
deposed that the patient is having pain and deformity in left
ankle and had difficulty in prolong walking but will not have
any problem in standing. Further, he deposed that the disability
was temporary at the time of examination which is likely to
change in future and may go in for degenerative arthritis.

Testimony of PW4 in the light of Disability
Certificate reflects that ability of petitioner only for prolonged
walk has been affected. The disability was observed to be '12%
temporary physical disability' in relation to left lower limb
and petitioner has not undertaken further
examination/evaluation. Accordingly, the case is not of
permanent disability and neither any further examination has
been recommended by Medical Board. The petitioner also
deposed during cross-examination that she was working with
same employer after the accident and there was no reduction of
salary/income. Counsel for petitioner also urged that the
assessment be considered on the basis of available record in the
light of testimony of PW4.

I am of the considered opinion that since the ability
of the petitioner to perform normal jobs does not appear to have
been permanently affected and only the disability was observed
to be temporary, the compensation cannot be awarded for
permanent disability/loss of amenities but only for pain and
suffering for the grievous injuries suffered in the accident.

Page No.276 of 313
(d) Loss of Income on account of accident
As per medical record, immediately after the
accident, petitioner was admitted at Dr. Rajendra Prasad Govt.
Medical College Hospital, Kangra, Tanda (HP) on 21.06.2007.
Thereafter, petitioner was shifted to Dr. R.M.L. Hospital, New
Delhi wherein she remained admitted from 26.06.2007 to
29.06.2007 and even thereafter remained under treatment as she
suffered fracture of left ankle.

Considering the nature of injuries, treatment
undertaken and period of admission as indoor patient, it can be
reasonably presumed that on account of injuries and disability,
the petitioner may not have been in a position to attend her work
for a period of about four months though she continued to obtain
medical treatment till later period without being an indoor
patient.

In the facts and circumstances, petitioner is
accordingly awarded damages of Rs.20,560/- for a period of
four months for which she was not able to perform her job i.e.
{Rs.5,140/- (income for one month) X 04 months}.

(e) Pain and Suffering & Mental Agony
As the petitioner suffered grievous injuries, she is
awarded a sum of Rs.1,00,000/-(Rupees One Lakh only)
towards pain and suffering and mental agony.

(f) Medicines and Medical Treatment

Page No.277 of 313
Counsel for petitioner contended that an amount of
Rs.5,240/- has been claimed towards the medical bills/treatment
by the petitoiner which has not been disputed on behalf of
insurance company.

Accordingly, petitioner is awarded a sum of
Rs.5,240/- towards medical bills/treatment.

(g) Conveyance & Special Diet
Though no conveyance bills have been filed on
record by the petitioner but it can be presumed that petitioner
must have spent some amount towards conveyance during the
period of treatment and for being shifted from Kangra to Delhi.
In view of above, an amount of Rs.20,000/- (Rupees Twenty
Thousand Only) is awarded towards conveyance.

Petitioner is further awarded an amount of
Rs.20,000/- (Rupees Twenty Thousand Only) towards special
diet.

(h) Attendant Charges
Hon'ble High Court of Delhi in DTC V/s Lalit AIR
1981 Delhi 558 held that the victim is entitled to compensation
even if no attendant is hired as some family member renders
gratuitous services.

Since the petitioner/injured had suffered fracture

Page No.278 of 313
resulting in temporary physical disability, she would have
required the constant aid of an attendant for the active period of
treatment which has been assessed as four months.

I am of the considered view that even if the
gratuitous services were rendered by some or the other family
members, the claimant cannot be deprived of its benefit on the
gain of the tortfeasor. Considering the nature of injuries, the
compensation of Rs.12,000/- (Rupees Twelve Thousand Only) is
awarded in lump-sum towards the attendant charges/gratuitous
services rendered by the family members (i.e. Rs.3,000/- X 04
months).

199. As discussed above, the overall compensation is
tabulated as under:

Loss of Earning Capacity Rs.NIL
Loss of Income on Account of accident Rs.20,560/-
Pain and Suffering Rs.1,00,000/-
Medicines & Medical Treatment Rs.5,240/-
Conveyance Charges Rs.20,000/-
Special Diet Rs.20,000/-
Attendant Charges Rs.12,000/-
-----------------
Total Rs.1,77,800/-
_____________
(Rounded off to Rs.1,78,000/-)
(Rupees One Lakh Seventy Eight Thousand Only)

The claimant/petitioner is also entitled to interest @
9% p.a. from the date of filing of claim petition i.e. w.e.f.
01.09.2007.

Page No.279 of 313
200. On realization, Rs.1,00,000/- (Rupees One Lakh
only) shall be released to the petitioner while the remaining
amount shall be kept in five fixed deposits in the name of
petitioner with a nationalized bank for a period of one year,
two years, three years, four years and five years respectively
without the facility of advance, loan or premature
withdrawal with release of quarterly periodical interest in her
account.

***************************************

Liability to Satisfy the Award

201. Counsel for Respondent No.3 New India Assurance
Company Ltd. contended that since driver of the offending
vehicle Raj Singh @ Nasir Ali was not in possession of a valid
driving licence to drive a bus which was further found to be
fake, the insurance company cannot be fastened with liability to
pay the compensation. It was urged that higher burden was
placed upon Respondent No.2 to ensure that the licence
possessed by the driver was valid since he had been in transport
business for long and further the vehicle was deputed to be
driven in a hilly area without the licence bearing any
endorsement from the licencing authority.

Reference was further made to Rule 185 (d) of the
Himachal Pradesh Motor Vehicles Rules which provides that the
driver shall not drive a public service vehicle on any hill road
unless his licence has been enclosed "for driving on hill roads"

by the registering authority. Further, the explanation to Rule 185

Page No.280 of 313
clarifies that the "hill road" shall mean all roads in the State
except those roads which may be declared by the government by
a notification in the official gazette.
Reliance was also placed upon statement of R3W1
Pramod Kumar, Clerk, RTO Office, Agra, UP who proved that
the driving licence bearing no.407 was issued in the name of
Ravi Kumar Aggarwal S/o R.C. Aggarwal, R/o Karamyogi,
Club, Kamla Nagar, Agra, UP which was valid for motorcycle
and LMV driving and not issued in the name of Nasir Ali S/o
Abdul Karim in the year 2005. It was further contended that
respondent no.2 committed breach of terms of policy since 37
passengers were carried exceeding the carrying capacity of the
bus which was built to carry 29 passengers apart from driver and
conductor. It was further urged that since respondent no.2
violated the terms and conditions of the policy as well as permit,
the insurance company could not be fastened with the liability to
pay the compensation. Reliance was further placed upon
National Insurance Company Ltd. vs. Anjana Shyam & Ors.
IV (2007) ACC 355 (SC); MAC APP. 172/2011 National
Insurance Co. Ltd. v. Prakash Chand & Ors. decided by
Hon'ble Mr. Justice G.P. Mittal on 9th January, 2015; Sardari
& Ors. v. Sushil Kumar & Ors., II (2008) ACC 426 (SC); New
India Assurance Co. Ltd. v. Kusum & Ors., II (2010) ACC 518
(SC) and United India Insurance Co. Ltd. v. Sujata Arora and
others, 2013 ACJ 2129.

202. On the other hand, counsel for Respondent No.2
vehemently disputed the liability of Respondent No.2/owner of

Page No.281 of 313
the offending vehicle and submitted that the forgery, if any, in
the driving licence could not have been detected by the owner of
the offending vehicle and there was no willful and conscious
default on the part of Respondent No.2. Further, it was denied
that the passengers in excess of the carrying capacity of the bus
travelled at the time of the accident.

It was also pointed out that PW4 Anu Gulati during
her cross-examination clarified that there were 23 adults and 06
children and about 02-03 seats were lying vacant. It was also
submitted that Smt.Bimla Ahuja (petitioner in Suit No.192/11,
193/11 & 195/11) in her statement also clarified that the bus had
been hired by her husband but no individual tickets were issued
and the bus did not carry passengers more than the carrying
capacity.

Reliance was further placed upon judgment passed
by Hon'ble Uttarakhand High Court in United India Insurance
Company Ltd. v. Prem Bisht and Anr. 2008 ACJ 1057 decided
on 27.02.2007 to contend that even in absence of endorsement to
drive the vehicles in hills, licence cannot be held to be invalid
and the insurance company would remain liable.

Reference was also made to Lakhmi Chand vs.
Reliance General Insurance, Civil Appeal Nos . 49-50 of 2016
decided by Hon'ble Supreme Court on 07 January, 2016
(Bench Hon'ble Mr. Justice T.S.Thakur and Hon'ble
Mr.Justice V.Gopala Gowda); Sheela Rani vs. National
Insurance Co. Ltd., MAC APP . 701/2012 decided by Hon'ble
Mr. Justice R.K. Gauba on 01st March, 2016 (Delhi High
Court); Oriental Insurance Company Ltd. vs. Smt. Devki Devi

Page No.282 of 313
and Others decided by Hon'ble Mr. Justice Servesh Kumar
Gupta (Uttaranchal High Court) on 09 May, 2016; S. Iyyapan
vs. M/s United India Insurance Company Ltd. and Another,
Civil Appeal No.4834 of 2013 passed by the Hon'ble Supreme
Court on 01 July, 2013 and Pepsu Road Transport
Corporation vs. National Insurance Company, (2013) 7 SCC

217.

203. In the instant case, Respondent No.2 M/s Pritpal Bus
Service led evidence of three witnesses namely R2W1
Harvinder Singh Oberoi/proprietor Pritpal Bus Service, R2W2
Sh.Santosh Kumar Dealing Assistant, District Transport
Authority, Rajpur Road, New Delhi and R2W3 Sh.Sampat Naik,
MLO, Transport Authority, Burari.

R2W1 Harvinder Singh Oberoi (owner of the
offending vehicle) testified that he was running travel agency in
the name of M/s New Pritpal Bus Service, situated 6/1, Prem
Nagar, Tilak Nagar, New Delhi-18 and was holding a valid
driving licence for driving a heavy motor vehicle since 1981.
Further respondent no.1 Raj Singh approached him somewhere
in June 2006 for appointing him as driver for bus. He had seen
the driving licence of respondent no.1 which appeared to be
genuine and respondent no.1 was thereby authorised to drive
motorcycle/light motor vehicle, transport vehicles and PSV. The
said licence was seized by the police, PS Dharamsala in case
FIR No.125/07. Further he had taken the driving licence of
respondent no.1 and on being satisfied with the driving sense,

Page No.283 of 313
respondent no.1 was appointed as a driver. On receiving
information regarding the accident at Dharamshala he had
reached the site of accident. He further deposed that the bus was
mechanically fit to run on the road and was purchased in the
year 2005. Further he was in possession of All India Tourist
permit. He further proved the copy of RC (Ex.R2W1/1),
original Insurance policy (Ex.R2W1/2), attested copy of FIR
(Ex.R2W1/3), original receipt of road tax of Delhi
(Ex.R2W1/4), original road tax/permit of Himachal Pradesh
(Ex.R2W1/4), original road tax/permit (Ex.R2W1/5), copy of
India Tourist Permit (Mark-X), copy of fitness certificate (Mark-
Y), copy of seizure memo of DL of driver of the offending
vehicle (Ex.R2W1/6).

On cross-examination by counsel for The New
India Assurance Company Ltd., he deposed that he was
running the transport business since 1978 and had engaged 7-8
drivers. He used to retain the photocopy of the driving licence
of the driver employed by him. Further the driver employed by
him for the bus involved in the accident was Nasir Ali and he
had not obtained any identity proof from Nasir Ali. He further
stated that appointment letter was never issued by him and
neither he obtained verification of driving licence of the driver.
He admitted that the driving licence which was given by the
driver did not bear endorsement for driving in hilly area. He
further clarified that there is no provision in the UP Motor Rules
where by the driver is required to have endorsement to drive in
the hills on the licence. Further the vehicle was sent from Delhi
to Chandigarh, Naina Devi, Baba Balak Nath, Chintpurni,

Page No.284 of 313
Jwalaji, Kangra, Chamunda, Dharamsla, Meclodganj, Katra and
was to return to Delhi. He further proved the contract
Ex.R2W1/DX and stated that the bus owned by him was 30
seater & had given the same to the hirer. He also proved the list
of passengers Ex.R2W1/DX1 and stated that the list was given
to the insurance company at the time of claim but he did not
know if any acknowledgment was obtained and denied the
suggestion that the list was not submitted to the insurance
company.

He further admitted having filed a claim case before
the Consumer Forum seeking the damages for the bus and had
placed the list Ex.R2W1/DX1. He further admitted that the bus
had carrying capacity of 29 passengers besides one driver and
conductor and the coverage was obtained for 29 passengers only.
He denied that R2W1/DX and R2W1/DX1 were forged and
fabricated or that he was aware that respondent no.1 was not
having a valid licence.

R2W2 Santosh Kumar, Dealing Assistant, District
Transport Authority, Rajpur Road, Delhi proved the permit
of vehicle bearing registration No.DL 1 PC 7676 and submitted
that the same was issued for the period upto 28.10.2010. He
further stated that the authorisation bearing No.AITP/0462/2005
was valid from 29.10.2005 to 28.10.2006. Further the permit
was valid for All India Tourist permit and proved the certified
copy of the same Ex.R2W2/1.

On cross-examination he submitted that the
authorisation as mentioned in para 12 as Ex.R2W2/1 is required

Page No.285 of 313
to be renewed every year. Further the said authorisation was
renewed for the period 04.11.2006 to 27.10.2007 and the sitting
capacity has been mentioned as S.No.11 in Ex.R2W2/1.

R2W3 Sh.Sampat Naik, MLO, Transport
Authority, Burari, Delhi proved the record regarding fitness of
vehicle bearing registration no.DL 1 PC 7676 having chassis
No.436051GUZ123782 receipt no.20088799 P valid from
28.10.2005 to 27.10.2007 (Ex.R2W3/1). He further stated that
the vehicle was fit for plying on road for the aforesaid period.
He further proved the attested copy of screen report in respect
of vehicle No.DL 1 PC 7676 showing the details of fitness,
permit number and validity, chassis number, engine number
(Ex.R2W3/2) and attested computer copy of permit
No.CC/ALL/HQ/00746/2005 valid from 29.10.2005 to
28.10.2010 (Ex.R3W3/3). He clarified that permit
no.AITP/0462/2005 was valid from 04.11.2006 to 27.10.2007.
Further the original permit was issued for five years from
29.10.2005 to 28.10.2010 and thereafter the renewal is on yearly
basis from 04.11.2006 to 27.10.2007.

On cross-examination, he denied that the record
produced by him was not correct. He further stated that the total
capacity of the aforesaid bus was 31 persons and cannot carry
more than said capacity.

204. Respondent No.3, New India Assurance Company
Ltd. examined Sh.Pramod Kumar, Clerk from RTO Office, Agra
U.P. (R3W1), Sh.C.N.Sharma, Administrative Officer, The New

Page No.286 of 313
India Assurance Company Ltd. (R3W2).

R3W1 Sh.Pramod Kumar, Clerk from RTO
Office, Agra, U.P. testified that licence bearing No.407 dated
07.01.2005 was issued in the name of Sh.Ravi Kumar Aggarwal
S/o Sh.R.C.Aggarwal, R/o Karamyogi Club, Kamla Nagar, Agra
U.P. The licence was valid for motorcycle and LMV (Private).
The licence No.407 was not issued in the name of Nasir Ali S/o
Abdul Karim in the year 2005 and proved the extract of register
(Ex.R3W1/1). He further stated that he had also brought the
register containing the record pertaining to licence no.2463
which was issued on 23.02.2001 in the name of Ansar Khan S/o
Sh.N. Khan, R/o Ptholi, Agra, U.P. and proved the copy of the
same as Ex.R3W1/2.

On cross-examination on behalf of petitioners he
denied that the DL no.407/05 was issued to Nasir Ali.

R3W2 C.N.Sharma, Administrative Officer, The
New India Assurance Company Ltd. testified that vehicle
no.DL 1PC 7676 was insured for the period 20.11.2006 to
19.11.2007. He further testified that a notice dated 30.06.2012
U/O 12 Rule 8 CPC was issued to owner to produce the
insurance policy. He further proved policy issued by the
Insurance Company in favour of the insured vehicle
(Ex.R3W2/1), Notice U/o 12 Rule 8 CPC issued to owner of the
offending vehicle (Ex.R3W2/2), postal receipt (Ex.R3W2/3).
He further stated that another notice U/O 12 Rule 8 was issued
to driver and owner of the offending vehicle for production of

Page No.287 of 313
original policy, DL, fitness and permit and proved the notice
U/o 12 Rule 8 CPC (Ex.R3W2/4), postal receipts (Ex.R3W2/5
& Ex.R3W2/6). He further testified that another notice U/O 12
Rule 8 CPC was issued to driver and owner of the offending
vehicle (Ex.R3W2/7) and further proved the postal receipts
(Ex.R3W2/8 and Ex.R3W2/9).

He further testified that the Investigator Sh.Ranjan
Sharma deputed by the insurance company after the
investigation submitted a report (Mark A) dated 09.01.2010
whereby it was reported that 13 persons had died in the accident
and 24 were injured.

Page No.288 of 313
205. The legal principles on the point of liability in case
the driver of the offending vehicle is found to possess a fake
licence as laid down in various judgments by the Hon'ble Apex
Court and High Court may be noticed in first instance.

In New India Assurance Co. Ltd. v. Ranbir Singh
Shastri and others , 2012 ACJ 2510 (Delhi High Court),
insurance company disputed liability on the ground that driving
licence produced by the driver of the offending vehicle was not
issued by the concerned licencing authority and a Licencing
Clerk was examined to prove that the driver of the offending
vehicle had not been issued the licence by the authority. It was
observed by the Hon'ble High Court "the fact that the licence of
the driver of the offending vehicle was a fake one is of no avail
to the insurance company in the instant case, for the reason that
it is an equally well settled position of law that the insurance
company in order to succeed in its defence must conclusively
establish on record that the insured had 'wilfully' committed
breach of the conditions of the insurance policy by permitting
his vehicle to be driven by a person not holding a valid and
effective driving licence." Reliance was further placed upon the
judgment passed by the Hon'ble Supreme Court in National
Insurance Co. Ltd. v. Swaran Singh , 2004 ACJ 1 (SC).

It was further held that for the purpose of willful
breach of the policy conditions by the insured the insurer must
lead evidence to prove its allegations of willful breach. If the
insurer is able to establish that the insured did not take adequate
care and caution to verify the genuineness or otherwise of the
licence by the driver the defence of the insurer must succeed. If,

Page No.289 of 313
on the other hand, the insured is able to show that he exercised
reasonable care in the matter of fulfilling the condition of the
policy regarding use of the vehicle by a duly licensed driver, the
defence of the insurer must necessarily fail. It was
further held that in the aforesaid case there was admittedly no
evidence on record to show that the insured was aware of the
fact that the driving licence of his driver was a fake one. The
inevitable conclusion therefore is that the insurance company
has failed to establish that the insured was guilty of willful
breach of the policy condition with regard to the driving licence
of his driver. Hence, the insurance company was held to be
liable to pay the amount.

206. In Oriental Insurance Co. Ltd. v. Sudhama Prasad
and others , 2012 ACJ 2797 (Delhi High Court), the liability
was disputed by the insurance company since the driver was
holding a fake licence and the recovery rights against the driver
and owner of the offending vehicle were pressed on the ground
that Motor Licencing Officer was examined to prove that the
alleged driving licence produced by the driver was fake. The
recovery rights were denied by the Tribunal on the ground that
the insurance company failed to prove that the breach on the part
of the insured was willful. The plea taken by the insurance
company was dismissed by the Hon'ble High Court on the
ground that the insurance company failed to lead any evidence
to prove that insured committed willful breach of the terms and
conditions of the policy.

Page No.290 of 313
207. Reference may be further made to judgment in the
case of National Insurance Co. Ltd. v. Swaran Singh , 2004
ACJ 1 (SC), where in para 102, the Hon'ble Apex court held as
follows:

"(102) The summary of our findings to the various issues as
raised in these petition is as follows:
xxx xxx xxx
(iii) The breach of policy conditions, i.e., disqualification
of driver or invalid driving licence of the driver, as contained
in sub-section (2) (a) (ii) of section 149 , has to be proved to
have been committed by the insured for avoiding liability by
the insurer. Mere absence, fake or invalid driving licence or
disqualification of the driver for driving at the relevant time,
are not in themselves defences available to the insurer
against either the insured or the third parties. To avoid its
liability towards insured, the insurer has to prove that the
insured was guilty of negligence and failed to exercise
reasonable care in the matter of fulfilling the condition of the
policy regarding use of vehicles by a duly licensed driver or
one who was not disqualified to drive at the relevant time.
(iv) The insurance companies, however, with a view to
avoid their liability must not only establish the available
defence(s) raised in the said proceedings but must also
establish 'breach' on the art of the owner of the vehicle, the
burden of proof wherefor would be on them.
(v) The court cannot lay down any criteria as to how the
said burden would be discharged, inasmuch as the same
would depend upon the facts and circumstances of each case.
(vi) Even where the insurer is able to prove breach on the
part of the insured concerning the policy condition regarding
holding of a valid licence by the driver or his qualification to
drive during the relevant period, the insurer would not be
allowed to avoid its liability towards insured unless the said
breach or breaches on the condition of driving licence is/are
so fundamental as are found to have contributed to the cause
of the accident. The Tribunals in interpreting the policy
conditions would apply 'the rule of main purpose' and the
concept of 'fundamental breach' to allow defences available
to the insurer under section 149 (2) of the Act.
(vii) The question as to whether the owner has taken
reasonable care to find out as to whether the driving licence
produced by the driver (a fake one or otherwise) fulfills the
requirements of law or not will have to be determined in

Page No.291 of 313
each case."

The decision of Hon'ble Supreme Court in the case of
Swaran Singh, 2004 ACJ 1 (SC), came to be considered in the
case of Laxmi Narain Dhut, 2007 ACJ 721 (SC) and in the said
judgment in para 11 (iii), it was observed as under:

"11 (iii)....Mere absence, fake or invalid driving licence or
disqualification of the driver for driving at the relevant
time are not in themselves defences available to the insurer
against either the insured or the third parties. To avoid its
liability towards the insured the insurer has to prove that
the insured was guilty of negligence and failed to exercise
reasonable care in the matter of fulfilling the condition of
the policy regarding use of vehicles by duly licensed driver
or one who was not disqualified to drive at the relevant
time."

Hon'ble Supreme Court in the case of Pepsu Road
Transport Corporation v. National Insurance Co. Ltd. , 2013
ACJ 2440 (SC), after considering the decisions of the Hon'ble
Apex Court in the case of Swaran Singh, 2004 ACJ 1 (SC), as
well as Laxmi Narain Dhut, 2007 ACJ 721 (SC), in para 8
observed and held as under:

"(8) In a claim for compensation, it is certainly open to
the insurer under section 149 (2) (a) (ii) to take a defence
that the driver of the vehicle involved in the accident was
not duly licensed. Once such a defence is taken, the onus
is on the insurer. But even after it is proved that the
licence possessed by the driver was a fake one, whether
there is liability on the insurer is the moot question. As far
as the owner of the vehicle is concerned, when he hires a
driver, he has to check whether the driver has a valid
driving licence. Thereafter he has to satisfy himself as to
the competence of the driver. If satisfied in that regard
also, it can be said that the owner had taken reasonable
care in employing a person who is qualified and competent
to drive the vehicle. The owner cannot be expected to go
beyond that,to the extent of verifying the genuineness of the
driving licence with the licensing authority before hiring

Page No.292 of 313
the services of the driver. However, the situation would be
different if at the time of insurance of the vehicle or
thereafter the insurance company requires the owner of the
vehicle to have the licence duly verified from the licensing
authority or if the attention of the owner of the vehicle is
otherwise invited to the allegation that the licence issued
to the driver employed by him is a fake one and yet the
owner does not take appropriate action for verification of
the matter regarding the genuineness of the licence from
the licensing authority. That is what is explained in
Swaran Singh 's case (supra). If despite such information
with the owner that licence possessed by his driver is fake,
no action is taken by the insured for appropriate
verification, then the insured will be at fault and, in such
circumstances, the insurance company is not liable for the
compensation."

208. The principles laid down in United India Insurance
Co. Ltd. v. Lehru , 2003 ACJ 611 (SC) in para 20 are also apt to
be quoted:

"(20) When an owner is hiring a driver he will therefore
have to check whether the driver was having a driving licence. If
the driver produces a driving licence which on the face of it looks
genuine, the owner is not expected to find out whether the licence
has in fact been issued by a competent authority or not. The owner
should then take the test of the driver. If he finds that the driver is
competent to drive the vehicle, he will hire the driver. We find it
rather strange that insurance companies expect owners to make
inquiries with RTOs, which are spread all over the country,
whether the driving licence shown to them is valid or not. Thus
where the owner has satisfied himself that eh driver has a licence
and is driving competently there would be no breach of section 149
(2) (a) (ii) . The insurance company would not then be absolved of
liability. If it ultimately turns out that the licence was fake the
insurance company would continue to remain liable unless they
prove that the owner-insured was aware or had notice that the
licence was fake and still permitted that person to drive. More
importantly even in such a case the insurance company would
remain liable to the innocent third party but it may be able to
recover from the insured. This is the law which has been laid down
in Skandia's case, 1987 ACJ 411 (SC), Sohan Lal Passi's case,
1996 ACJ 1044 (SC) and Kamla's case, 2001 ACJ 843 (SC). We
are in full agreement within the views expressed therein and see no
reason to take a different view."

209. Reliance may further be placed upon New India

Page No.293 of 313
Assurance Co.Ltd. v. Nafis Ahmed Abdul Razaq Ansari and
others, 2015 ACJ 1955 (Division Bench judgment of Hon'ble
High Court of Gujarat). In the aforesaid case, the insurance
company examined the concerned RTO to prove that the driver
was holding a fake driving licence and it was contended that in
view of violation of conditions of insurance policy the insurance
company cannot be held liable to pay the compensation. It was
noticed that neither the driver nor the owner of the offending
vehicle contested the claim petition and did not step into witness
box. Further, the insurance company did not try to examine
driver and owner of the offending vehicle as witnesses. It was
held that on the aforesaid ground alone the insurance company
cannot be absolved from its liability to pay the compensation
since the insurance company failed to prove that the owner of
the offending vehicle involved in the accident had any
knowledge that driver was holding a fake licence and despite
that he employed the driver and/or at the time of taking the
insurance, the insurance company drew the attention of the
owner that driver was having a fake driving licence and despite
the same the owner did not take the proper care to verify the
genuineness of the driving licence. Reliance was also placed
upon the judgment of Hon'ble Supreme Court in Pepsu Road
Transport Corporation v. National Insurance Co. Ltd. , 2013
ACAJ 2440 (SC).

210. Now the judgments relied by the counsel for
insurance company may be briefly discussed.

It may be observed that the judgment passed by

Page No.294 of 313
Hon'ble Mr.Justice G.P.Mittal in MAC Appeal 172/2011 decided
on 09.01.2015 National Insurance Company Ltd. vs. Prakash
Chand & Ors. as relied by the counsel for insurance company
reiterates the principles on the point of liability that the insurer is
to prove that there was a breach on the part of insured and the
onus keeps on shifting depending upon facts and circumstances
of each case. The proposition of law laid down in aforesaid case
is not disputed.

In II (2008) ACC 426 (SC) Sardari & Ors. vs.
Sushil Kumar & Ors. relied by the counsel for insurance
company, the liability of the insurer was considered in the light
of the fact that insured handed over the vehicle for being driven
by an unlicenced driver. It was held that insurer can avoid its
liability on the ground of violation of conditions of contract of
insurance. However, the present case deals with the situation
wherein the licence was subsequently found to be fake on
investigation but at the time of employment of driver the insured
had employed the driver after taking a driving test and seeing
the driving licence produced by the driver. The judgment as
such is distinguishable on facts.

In II (2010) ACC 518 (SC) New India Assurance
Company Ltd. vs. Kusum & Ors. relied by counsel for insurance
company, the Hon'ble Apex Court observed that the owner has a
duty to see that the vehicle is driven by a person having a valid
driving licence. In the aforesaid case the licence of the driver of
the bus was proved to be invalid and as such insurance company
was absolved of the liability to pay the compensation. However,
in the aforesaid case also the owner did not raise any contention

Page No.295 of 313
that he had used due diligence in allowing the driver to drive the
vehicle as observed in para 7. However, in the present case the
owner has contended that he used due diligence in allowing the
driver to drive vehicle after taking a driving test and seeing the
driving licence which has been subsequently found to be false
on investigation. The judgment relied by the counsel for
insurance company as such is distinguishable on facts.

Similarly 2013 ACJ 2129 United India Insurance
Company Ltd. vs. Sujata Arora & Ors. (SC) relied by the
counsel for insurance company involved a case wherein driver
of the offending vehicle was not holding a valid driving licence
at the time of accident and the insurance company was
exonerated. The aforesaid case also did not involve the
engagement of driver by the insured after taking a driving test
and seeing the driving licence which has subsequently been
found to be fake, as in the present case. In view of above, the
cases relied by the counsel for insurance company are
distinguishable on facts and proposition of law.

In the present case, admittedly, the evidence of
R3W1 Sh.Pramod Kumar, Clerk, RTO, Agra UP clearly points
out that the driving licence possessed by Respondent No.1 as per
the details disclosed on the licence, was not issued by the
concerned authority and was fake. No evidence to the contrary
has been brought on record by Respondent No.1 & 2. In view
of above, an adverse inference has to be drawn that the licence
possessed by Respondent No.1 was fake.

However, in order to be absolved of the liability to
pay the compensation, insurance company still needs to

Page No.296 of 313
establish on record that the insured had willfully committed
breach of the conditions of the insurance policy by permitting
his vehicle to be driven by a person not holding a valid and
effective licence. It may be noticed that there is nothing on
record to prove that owner of the offending vehicle was aware
that the driving licence possessed by respondent no.1/driver of
offending vehicle was fake at the time of engaging Respondent
No.1 or the forgery could have been detected on mere
examination of the licence. Testimony of Respondent
No.2/R2W1 Shri Harvinder Singh Obroi is categorical that he
had seen the driving licence of the driver and appeared to be
genuine. Further, he had also taken the driving test of the driver
and was satisfied with the driving skills. The testimony could
not be dented during cross-examination and there is no ground
to disbelieve the same. I am of the considered view that merely
proving that the licence was fake does not lead to an
inference that there was a willful breach on the part of the
insured with respect to the conditions of the policy due to
possession of a fake licence by the driver of the offending
vehicle or the same was to his knowledge. As held in Lehru's
case (supra), the owner of the vehicle does not have to make full
fledged inquiry with respect to the validity of the driving licence
except at the commencement of the employment unless and until
it is specifically brought to the notice of the employer that the
driver is driving with a fake driving licence or an expired
driving licence. The case is squarely covered by the judgment in
New India Assurance Co.Ltd. v. Nafis Ahmed Abdul Razaq
Ansari and others, 2015 ACJ 1955 (Division Bench judgment

Page No.297 of 313
of Hon'ble High Court of Gujarat) and the judgments of the
Hon'ble Apex Court as discussed in preceding paragraphs as
relied by counsel for Respondent No.2.

In the facts and circumstances on record, the
insurance company has failed to prove willful and conscious
breach on part of insured qua the possession of fake licence
by Respondent No.1 at the relevant time.

211. Now the contentions raised by counsel for insurance
company for being exonerated from the liability to pay the
compensation on the ground that the licence shown by
Respondent No.1 never had an endorsement to drive vehicle in
hilly area but was still deputed by Respondent No.2/insured may
be dealt with. In the aforesaid context, the judgments relied by
Respondent No.2/insured as well as insurance company may be
briefly highlighted.

United India Insurance Company Ltd. v. Prem
Bisht & Anr. 2008 ACJ 1057 (Uttarakhand High Court) relied
by counsel for Respondent No.2 dealt with a case of
compensation on account of death of one Govind Singh in a
motor vehicular accident on 02.03.2002 while travelling by Jeep
No. UP 01 3159. The vehicle was alleged to be driven by the
driver rashly and negligently and fell into a ditch resulting in
fatal injuries to Govind Singh. The insurance company admitted
the insurance of the vehicle but took a stand that the vehicle was
being plied against the terms and conditions of the insurance
policy as the driver did not possess a valid driving licence as
there was no endorsement in the driving licence regarding

Page No.298 of 313
authority to drive the vehicle in hilly areas. Further, reliance
was placed upon Rule 193 of Motor Vehicles Rules, 1998 which
provided that no person shall drive a public service vehicle or
goods vehicle on a hill road unless his licence to drive such
vehicle has been endorsed by a registering authority with a
permission to drive upon hill roads situated within the
jurisdiction of such registering authority or in case of a public
service vehicle hired by tourists, by the registering authority of
the State with which reciprocal arrangements on the point have
been agreed upon. The contention on behalf of the insurance
company was repudiated on behalf of claimants that
endorsement is applicable for public service vehicles and further
there being no such provision under Motor Vehicles Act , Rule
193 cannot be held to be applicable.

Hon'ble High Court placing reliance upon United
India Insurance Company Ltd. v. Lehru , National Insurance
Company Ltd. v. Swaran Singh and Lal Chand v. Oriental
Insurance Company Ltd. held that there shall be no breach of
Section 149(2)(a)(ii) on account of non-endorsement of hill
driving licence and the insurance company cannot be absolved
of the liability in view of defence of the owner of the vehicle in
his written statement that driver of the vehicle was an expert
driver having a valid driving licence.

212. In Rajender Singh Negi v. Oriental Insurance
Company Ltd., IV (2008) CPJ 250 (NC) decided by National
Consumer Disputes Redressal Commission, New Delhi as relied
on behalf of insurance company, the case involved a light

Page No.299 of 313
motor transport vehicle owned by the claimant in an accident in
Uttarakhand while transporting some goods from Rishikesh to
Joshimath. The vehicle was badly damaged and the insurance
company repudiated the complainant's claim on the ground that
the licence held by driver of the vehicle did not authorise him to
drive a vehicle on hill roads and as such there was violation of
the terms and conditions of the insurance policy in view of
provisions of Motor Vehicles Act, 1988 read with Uttar Pradesh
Motor Vehicles Rules, 1998. It was held by the Hon'be
National Consumer Disputes Redressal Commission that any
driving licence not in conformity with the provisions of Motor
Vehicles Act and relevant Motor Vehicles Rules would render
the driving licence ab initio invalid. If a specific rule of the
applicable Motor Vehicles Rules requires a special endorsement
on the driving licence to authorise the holder of the licence to
drive on hill roads, use of driving licence, non compliance with
this requirement would render the driving licence invalid for the
purpose, namely, driving on hill roads. It was further observed
that "hill road endorsement" on a driving licence is not a mere
formality which can be rest aside as unnecessary in a State
which is generally hilly as it is obvious that safe driving on hill
roads needs a higher level of skills on the part of the driver.

In other case relied on behalf of the insurance
company i.e. United India Assurance Company Ltd. v. M/s
Hillways Engineering Co. decided by State Consumer Disputes
Redressal Commission, Uttarakhand on 23.05.2013, the truck
owned by M/s Hillways Engineering Co. met with an accident
on 02.11.2004 and got badly damaged. The claim filed on

Page No.300 of 313
behalf of complainant was repudiated by insurance company on
the ground that driver of the truck was not holding a valid licene
at the time of accident. Referring to Rule 193 of Uttar Pradesh
Motor Vehicles Rules, 1998 it was held that the said provision
clearly shows that the requirement for 'hill road endorsement' on
the driving licence of the driver who drives the vehicle on hill
roads is mandatory and not just a formality. Further, without
such an endorsement, the driving licence cannot be said to be
valid or effective for driving public service vehicle or goods
vehicle on the hill roads. As such, if the driving licence was not
endorsed for hill roads, it would amount to breach of insurance
policy conditions and also violation of the Motor Vehicles Act .
The repudiation of "own damage insurance claim" by the
insurance company was held to be justified.

213. In the instant case, reference may also be made to
Rule 185 of the Himachal Pradesh Motor Vehicles Rules as
relied by counsel for insurance company which provides as
under:

"185. Special Provisions on hill roads :-
On all hill roads all drivers shall observe the
following special rule namely:-
(a) no motor vehicle shall overtake another, except at a
place where the whole road is clearly visible for at least
180 metres ahead;

(b) when two motor vehicles approach each other in
opposite directions at a point where they cannot meet
without danger of collusion, the vehicle proceeding down
hill shall give way to the vehicle proceeding uphill and
when such a meeting takes place in a dip or on a level
stretch of road, the vehicle on the inside of the road, that,
the side from which the hill side slopes upwards, shall
give way;

Page No.301 of 313
shall give horn; provided that it shall not be necessary to
give a horn at bend or curve near a hospital if an
indication for not giving a horn has been put at that bend
or curve;

(d) the driver shall not drive a public service vehicle on
any hill road, unless his license has been enclosed "for
driving on hill roads" by the Registering authority;

Explanation :- For the process of this rule, the expression "Hill
Road" shall mean all roads in the State except these roads which
may be declared by the Government by a notification in the official
Gazette as plain roads."

214. Apparently, the purpose of endorsement on licence in
relation to public service vehicles driven in hilly areas is to
ensure safe driving on the hill roads as it requires a higher level
of skills on the part of the driver. However, it may be noticed
that in United India Assurance Company Ltd. v. M/s Hillways
Engineering Co. & Ors. (supra) decided by State Consumer
Disputes Redressal Commission relied by counsel for insurance
company, reliance was placed upon by petitioners therein on
judgment passed by Hon'ble High Court of Uttarakhand in case
of Balbir Singh vs. Shobha Kashyap & Another , 2009 ACJ 546
to press that the non-endorsement of hill driving licence does
not absolve the insurance company from the liability to pay the
compensation but the same was distinguished on the ground that
it referred to order passed by the Workmen Compensation
Commissioner and pertained to 'third party claim' while the case
before the Hon'ble Commission pertained to 'own damage of
vehicle'. Further, reliance was placed by Hon'ble Commission
upon IV (2008) CPJ 250 (NC) Rajender Singh Negi v. Oriental
Insurance Co. Ltd. which case also related to the case of 'own
damage' to the vehicle and insurance company was absolved of

Page No.302 of 313
the liability. It is pertinent to note that United India Assurance
Co. Ltd. v. Prem Bisht & Anr as well as Balbir Singh vs.
Shobha Kashyap & Another (supra), decided by Hon'ble High
Court of Uttarakhand specifically lay down that there would be
no breach of Section 149(2)(a)(ii) on account of non-
endorsement of hill driving licence and the insurance company
cannot be absolved of the liability relying upon the judgment
passed by the Division Bench of Hon'ble High Court of
Uttarakhand in New India Assurance Co. Ltd. v. Kala Devi, AO
No.139 of 2005 decided on 31.10.2006 and the findings may be
beneficially quoted:

"9. Mr. D.S. Patni has further submitted that the driver of the
vehicle has no valid driving licence, as there is no endorsement in
the driving licence regarding authority to drive the vehicle in hill
areas. Mr. D.S. Patni has referred Rule 193 of Motor Vehicles
Rules, 1998, which reads as under:

193. Endorsement of certain licences for hill roads.--No person
shall drive a public service vehicle or a goods vehicle on a hill
road unless his licence to drive such public service vehicle or
goods vehicle has been endorsed by a registering authority with a
permission to drive upon hill roads situated within the jurisdiction
of such registering authority or in the case of a public service
vehicle hired by tourists, by the registering authority of the State
with which reciprocal arrangements on the point have been agreed
upon.

10. On the other hand, the counsel fro the respondents Mr. Kishor
Jkumar, Mr. L.K. Tiwari and Mr. P.C. Bisht have submitted that
aforesaid endorsement is only applicable for public service
vehicles and further there being no such provision under the Motor
Vehicles Act , therefore, Rule 193 cannot be held to be applicable.

I have considered the submissions in the light of the above rules
and I find that if there was no endorsement of authorisation to
drive the vehicles in hills, the licence cannot be held invalid.

11. The Supreme Court in the case of United India Insurance Co.
Ltd. v. Lehru , has held that where the driver's licence is found
fake, liability of insurance company towards third party does not
get avoided. The Apex Court has observed as under:

(17) When an owner is hiring a driver he will therefore have

Page No.303 of 313
to check whether the driver has a driving licence. IF the
driver produces a driving licence which on the face of it looks
genuine, the owner is not expected to find out whether the
licence has in fact been issued by a competent authority or
not. The owner would then take the test of the driver. If he
finds that the driver is competent to drive the vehicle, he will
hire the driver. We find it rather strange that insurance
companies expect owners to make enquiries with R.T.Os.,
which are spread all over the country, whether the driving
licence shown to them is valid or not. Thus, where the owner
has satisfied himself that the driver has a licence and is
driving competently there would be no breach of Section
149(2)(a)(ii) . The insurance company would not then be
absolved of its liability. If it ultimately turns out that the
licence was fake, the insurance company would continue to
remain liable unless they prove that the owner-insured was
aware or had noticed that the licence was fake and still
permitted that person to drive. More importantly, even in
such a case the insurance company would remain liable to
the innocent third party, but it may be able to recover from
the insured. This is the law which has been laid down in
Skandia's case 1987 ACJ 411 (SC); Sohan Lal Passi 's case
and Kamla 's case. We are in full agreement with the views
expressed therein and see no reason to take a different view.

12. In the case of National Insurance Co. Ltd. v. Swaran Singh ,
the Apex Court has held as under:

(102)(iii) The breach of policy conditions, e.g.,
disqualification of driver or invalid driving licence of the
driver, as contained in Sub-section (2)(a)(ii) of Section 149 ,
has to be proved to have been committed by the insured for
avoiding liability by the insurer. Mere absence, fake or
invalid driving licence or disqualification of the driver for
driving at the relevant time, are not in themselves defences
available to the insurer against either the insured or the third
parties. To avoid its liability towards insured, the insurer has
to prove that the insured was guilty of negligence and failed
to exercise reasonable care in the matter of fulfilling the
condition of the policy regarding use of vehicles by a duly
licensed driver or one who was not disqualified to drive at
the relevant time.
xxxxxxxxxxxxxx

(vi) Even where the insurer is able to prove breach on the
part of the insured concerning the policy condition regarding
holding of a valid licence by the driver or his qualification to
drive during therelevant period, the insurer would not be
allowed to avoid its liability towards the insured unless the
said breach or breaches of the condition of driving licence
is/are so fundamental as are found to have contributed to the
cause of the accident. Tribunals in interpreting the policy
conditions would apply 'the rule of main purpose' and the

Page No.304 of 313
concept of 'fundamental breach' to allow defences available
to the insurer under Section 149(2) of the Act.

13. The Apex Court in the case of Lal Chand v. Oriental
Insurance Co. Ltd. , after placing reliance upon the case-law
enumerated in the case of New India Assurance Co. Ltd. v. Kamla ;
United India Insurance Co. Ltd. v. Lehru and National Insurance
Co. Ltd. v. Swaran Singh , has held as under:

(9) In the instant case, the owner has not only seen and
examined the driving licence produced by the driver but also
took the test of the driving of the driver and found that the
driver was competent to drive the vehicle and thereafter
appointed him as driver of the vehicle in question. Thus, the
owner had satisfied himself that the driver had a licence and
was driving competently, there would be no breach of Section
149(2)(a)(ii) and the insurance company would not then be
absolved of its liability.

14. Owner of the vehicle has mentioned in his written statement
that the driver of the vehicle was an expert driver having valid
driving licence. He filed the copy of licence along with his
written statement. Hence, in view of the observations made
above, there would be no breach of Section 149(2)(a)(ii) on
account of the non-endorsement of hill driving licence and the
insurance company cannot be absolved from his liability.

15. Similar view has been taken by the Division Bench of this
Court in New India Assurance Co. Ltd. v. Kala Devi A.O. No.139
of 2005; decided on 31.10.2006."

The same is also the ratio laid down in United India
Insurance Company Ltd. vs. Prem Bisht & Anr. , 2008 ACJ
1057 (Uttaranchal High Court).

Similarly, in Oriental Insurance Company Ltd. vs.
Smt. Devki Devi and Others decided by Hon'ble Uttaranchal
High Court on 09 May, 2016 wherein the driving licence did not
have the endorsement to drive the vehicle on hilly roads, it was
observed:

"If the driving licence does not fulfill the requisite necessities, as
envisaged under the Act, then in such eventuality, the driver of such
vehicle may be challaned under the appropriate provisions of the
Act or his licence may be cancelled. But, at the same time, only for
a small shortcoming on the part of the driver as regards his lience,

Page No.305 of 313
the claimants/dependents cannot be made to suffer from
compensation as adumbrated under the Act. All the more, such
breaches are minor in nature."

In the present case also the evidence of the insured is
that he had taken the test of the driver at the time of employment
and was satisfied with the driving skills and further the driver of
the vehicle prior to the accident on 20.06.2007 had been
extensively driving the vehicle in the hilly area since
commencement of pilgrimage on 17.06.2007. In the facts and
circumstances, in view of judgment passed in Balbir Singh vs.
Shobha Kashyap & Anr. (supra), the insurance company cannot
be absolved of the liability on the ground of non-endorsement of
hill driving licence.

215. It is next contended by counsel for insurance
company that there has been breach of permit/conditions of
insurance policy since the offending vehicle was carrying
passengers in excess of the carrying capacity of 29 passengers
apart from driver and conductor. Reliance is further placed by
the counsel for insurance company on National Insurance
Company Ltd. vs. Anjana Shyam & Ors. IV (2007) ACC 355
(SC).

216. It may be noticed that Sub-clause (ii) of Clause (b) of
Section 147(1) of the Act obliges the owner to take out
insurance compulsorily against the death of or bodily injury to
any passengers of a public service vehicle caused by or arising
out of the use of the vehicle in a public place.

Page No.306 of 313
Further Section 58 sub-section (2) provides that a
registering authority when registering a transport vehicle shall
enter in the record of registration and in the certificate of
registration various particulars and Clause (d) provides that if
the vehicle is used or adapted to be used for carriage of
passengers, the number of passengers for whom accommodation
is provided. Thus the registration of the vehicle, which alone
makes it usable on the road, records the number of passengers to
be carried and the certificate of registration also contains that
entry. So, an insurance company insuring the passengers carried
in a vehicle in terms of Section 147 (1) (b) (ii) of the Act, can
only insure such number of passengers as are shown in the
certificate of registration.

Also Clause (vii) Sub-section (2) of Section 72 of the
Motor Vehicles Act with respect to grant of stage carriage
permits deals with conditions regarding the maximum number of
passengers that may be carried in a stage carriage. The permit is
also liable to be cancelled in case of violation of any of the
conditions U/s 86. In view of above the insurance can be taken
only in respect of the persons permitted to be carried under the
permit which in turn also corresponds to the number of
passengers for which the vehicle is built to carry. Further, the
insurance company is liable only in respect of the number of
passengers for whom insurance can be taken under the Motor
Vehicles Act and for whom insurance can be taken as a fact and
not in respect of the other passengers involved in the accident in
a case of overloading.

Page No.307 of 313
217. In National Insurance Company Ltd. vs. Anjana
Shyam & Ors. IV (2007) ACC 355 (SC) offending bus was
insured for 42 passengers while at the time of accident the bus
carried 90 passengers. The accident involved death of 26
passengers including driver and injuries were sustained by 63
passengers. It was held by the Hon'ble Apex Court that the
insurance company cannot be taken to cover more passengers
than permitted by certificate of registration and permit as a stage
carrier. Further the insurance company can be made liable only
in respect of number of passengers from whom insurance can be
taken under the act and for whom insurance can be taken as a
fact and not in respect of other passengers involved in the
accident in case of overloading. It was further held that
insurance company can be made liable only in respect of
number of passengers for whom insurance was taken and
accordingly 42 awards were to be satisfied by insurer in
descending order starting from highest award.

It was therein further held as to how to determine the
compensation payable or how to quantify the compensation
since there is no mean of ascertaining who out of the overloaded
passenger constitute the passengers covered by the insurance
policy as permitted to be carried by the permit itself. It was
therein held that the insurance company, in such a case, would
be bound to cover the higher of the amounts of compensation
awarded to the extent of the number of passengers covered by
the insurance policy i.e. in the aforesaid the 42 highest awards
out of 90 were directed to be paid by the insurance company
since the insurance could have been taken only in respect of 42

Page No.308 of 313
passengers as per carrying capacity of the vehicle. The Tribunal
was further directed to distribute the money so deposited by the
insurance company proportionately to all the 90 claimants and
leave all the claimants to recover the balance from the owner of
the vehicle.

218. In the present case, as per testimony of R2W1 the
permit was obtained which was valid for the relevant period and
further the number of passengers carried in the bus was as per
the list (R2W1/DX1). It was further submitted that as per the
list of passengers, there were no excess passengers being carried
in the bus which had the sitting capacity of 30 as per
Ex.R2W1/DX though the same has been disputed on behalf of
insurance company and it is claimed that the bus carried about
37 passengers.

Admittedly, in the present case the numbers of claim
petitions which have been filed before this Tribunal is 29 and it
has not been pointed out by the counsel for insurance company
if any other claim petition stands filed in any other
court/tribunal. Though it is claimed on behalf of insurance
company that the number of passengers travelling at the time of
accident was more than 30 on the basis of evidence of R3W2
Sh.C.N.Sharma, Administrative Officer of the Insurance
Company but the same has not been conclusively proved on
record. It needs to be noticed that the excess passengers, if any,
presumed to be travelling in the bus have not been proved to be
the contributory cause for the accident.

Reference may be made to Lakhmi Chand v.

Page No.309 of 313
Reliance General Insurance, Civil Appeal Nos. 49-50 of 2016
(Arising out of SLP (C) 37534-37535 of 2013) relied by counsel
for Respondent No.2. In the aforesaid case, the claim of
appellant towards repair of the vehicle which was involved in an
accident was dismissed by the State Commission as the
insurance company took the ground that five passengers were
travelling in the goods carrying vehicle at the time of accident
whereas the permitted capacity of the motor vehicle was only
1+1. Further, the same was upheld by the National Commission.
However, the findings of the National Commission were
reversed by the Hon'ble Apex Court relying upon B.B.
Nagaraju v. Oriental Insurance Co. Ltd. Divisional Officer,
Hassan and it was observed that mere factum of carrying more
passengers than the permitted seating capacity in the goods
carrying vehicle by the insured does not amount to fundamental
breach of the terms and conditions of the policy so as to allow
the insurer to eschew its liability. It was also observed that the
misuse of the vehicle was somewhat irregular though, but not so
fundamental in nature so as to put an end to the contract, unless
some factors existed which by themselves, had gone to
contribute to the causing of the accident. Reference was also
made to National Insurance Company Ltd. v. Swaran Singh &
Ors. , wherein it was held that "49. such a breach on the part of
the insured must be established by the insurer to show that not
only the insured used or caused or permitted to be used the
vehicle in breach of the Act but also that the damage he suffered
flowed from the breach."

In the facts and circumstances, the insurance

Page No.310 of 313
company is liable for payment of compensation to all the 29
claimants, who have filed the claim petition before this
Tribunal and cannot be absolved of its liability to pay the
compensation.

219. It is further held that Respondent No.1 (Driver),
Respondent No.2 (Owner) and Respondent No.3 (Insurer) of the
offending vehicle are jointly and severally liable to make the
payment of compensation to the petitioners/claimants.

220. The jurisdiction in the present proceedings has
been invoked u/s 166 of MV Act since some of the petitioners
are residents within jurisdiction of this Tribunal though the
accident had taken place in H.P. Since in the present case the
driving licence of the driver of the offending vehicle has been
found to be fake and resulted in several casualties and
injuries to other passengers, a copy of judgment be
forwarded to SHO, PS: Tilak Nagar, Delhi within whose
jurisdiction respondent no.1 & 2 are residing, for initiating
criminal proceedings against the driver Raj Singh @ Nasir
Ali for possession of fake licence, if the case has not been
earlier registered and the action taken report be accordingly
placed before the Tribunal within a month.

221. It may be observed that the number of casualties
and injured in the present case calls for simplification of
process of verification of licences issued by different
licencing authorities outside Delhi. For the aforesaid

Page No.311 of 313
purpose, the licences issued by different licencing authorities
outside Delhi need to be connected to a centralised server
wherein the verification report can be obtained online to
check the scam of fake licences. The same would go a long
way in curbing the number of such accidents and save some
precious lives.

A copy of this order be sent to Chief Secretary,
Govt. of NCT of Delhi and Commissioner of Police, Delhi for
taking necessary steps with the concerned Ministry in this
regard and action taken report be filed within four weeks.

218. Relief
Since the offending vehicle was duly insured,
Respondent No.3/The New India Assurance Company Ltd.
is directed to deposit the award amount as calculated in
respective cases above along with interest @ 9% per annum
from the date of filing of claim petitions till realization with
Nazir of this Court within 30 days under intimation to the
petitioner/s, failing which the Insurance Company shall be
liable to pay interest @ 12% per annum for the period of
delay beyond 30 days.

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 with the Tribunal to the
claimant/s and complete details in respect of calculations of
interest etc. in the court within 30 days from today.

A copy of this judgment be sent to Respondent No.3/

Page No.312 of 313
The New India Assurance Company Ltd. for compliance within
the time granted.

Nazir is directed to place a report on record in the
event of non-receipt/deposit of the compensation amount within
the time granted.

The order be placed in lead case bearing Suit
No.307/11 titled as Sapna Talwar & Ors. Raj Singh @ Nasir
Ali as all the cases have been disposed together and need not
be separately placed in each case considering the voluminous
award.

File be consigned to Record Room.

Announced in open court (Anoop Kumar Mendiratta)
on 16th July, 2016 Judge MACT-1 (Central),
Tis Hazari Courts, Delhi.

Page No.313 of 313

Surender Kumar Khurana v. Tilak Raj Khurana

Ratio Decidendi

Headnotes

Full Judgment Text

Our Analysis