Delhi District Court
Pragati Kharel vs Apurva Halder on 17 April, 2026
IN THE COURT OF SH. ABHILASH MALHOTRA
PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS
TRIBUNAL-02,PATIALA HOUSE COURTS, NEW DELHI
In the matter of:
SMT. MITHLESH & Ors. Vs. MUKESH KUMAR
& ORS.
DAR NO. 424/2021
1. Ms. Pragati Kharel (Wife)
W/o Late Sh. Yogesh
2. Ms. Trisha Adhikari (Daughter)
D/o Late Sh. Yogesh
3. Tanishka Adhikari (Daughter)
D/o Late Sh. Yogesh
All Resident of:
C-20 E, Railway Colony, Lajpat Nagar,
New Delhi -110024.
4. Smt. Poonam Adhikari (Mother)
W/o Late Sh. Him Lal Adhikari
5. Him Lal Adhikari (Father)
Both R/o: 5D, Railway Board Servant Qtr,
Sarojini Nagar, New Delhi-110023.
... Petitioners
Versus
1. Sh. Apurva Halder
DAR No. 466/2021 Page. 1 of 46
Smt. Mithlesh & Ors. Vs Mukesh Kumar & Anr.
S/o Sh. Nami Halder
Village - J-29, Arjun Vihar, Jaitpur,
Badarpur, Delhi. ... Driver/
Respondent no. 1
2. Ms. Apurva Halder
D/o Sh. Om Prakash Dhyani
R/o H. No. 65, Type-II,
NCRT Campus, Hauz Khas, New Delhi … Owner/
Respondent no. 2
3. Tata AIG General Insurance Co. Ltd.
Date of accident 02.02.2021
Date of filing of DAR 29.10.2021
Date of framing of issues 28.09.2022
Date of concluding arguments 08.04.2026
Date of decision 17.04.2026
AWARD/JUDGMENT
Index to the Judgment
I. BRIEF FACTS/CASE OF THE CLAIMANT(s)...........................................4
II. FRAMING OF ISSUES……………………………………………………………………….5
III. ARGUMENTS OF COUNSELS OF THE PARTIES……………………………….9
IV. ISSUE WISE ANALYSIS & FINDINGS THERETO…………………………….12
(a) Issue No.1: Whether the deceased died as a consequence of negligence
of respondent No. 1 Apurva Halder in driving the offending vehicle bearing
DAR No. 466/2021 Page. 2 of 46
Smt. Mithlesh & Ors. Vs Mukesh Kumar & Anr.
registration No. DL-eSER-1470, owned by respondent no. 2 and insured by
respondent no. 3? OPP…………………………………………………………………………12
i. Presumption qua complicity upon filing chargesheet:……………….13
ii. The evidence on record qua negligence…………………………………..14
iii. Preponderance of probabilities:………………………………………………18
iv. Finding:……………………………………………………………………………… 19
(b) Issue No.2: Whether claimant is entitled to compensation, and to what
amount ?……………………………………………………………………………………………. 20
i. Principles qua assessment of compensation:…………………………….20
ii. Monthly Income of the deceased:…………………………………………..22
iii. Future prospects:………………………………………………………………….25
iv. Personal expenses of the deceased:…………………………………………26
v. Monthly & Annual Loss of dependency:…………………………………27
vi. Total Loss of Dependency:…………………………………………………….28
vii. Other Heads:………………………………………………………………………..28
viii. Medical Expenses:………………………………………………………………..29
ix. Compensation for Loss of Consortium:…………………………………..30
x. Compensation for Loss of Estate:…………………………………………..31
xi. Compensation towards Funeral Expenses:……………………………….32
xii. Total Compensation:……………………………………………………………..32
(c) Issue No.3: Relief………………………………………………………………………. 32
i. Amount of Award:………………………………………………………………..32
ii. Rate of Interest:……………………………………………………………………33
V. DEPOSIT OF AWARD& RELEASE/APPORTIONMENT…………………….34
i. Deposit of Award:…………………………………………………………………34
ii. Disbursement of the award amount & protection thereof:………….36
VI. LIABILITY………………………………………………………………………………………38
VII.. SUMMARY OF COMPUTATION OF AWARD AMOUNT IN CASES OF
DEATH…………………………………………………………………………………………………..40
DAR No. 466/2021 Page. 3 of 46
Smt. Mithlesh & Ors. Vs Mukesh Kumar & Anr.
VIII…………………………COMPLIANCE QUA PROVISIONS OF THE SCHEME
42
I. BRIEF FACTS/CASE OF THE CLAIMANT(s)
1. In present case, FIR bearing no. 13/2021 was registered in PS
Connaught Place, Delhi. A charge sheet was filed by the police
against the driver Mr. Apurva Haldar(R-1) under Section
279/304A IPC, on the charges of rash driving of vehicle no.
DL-3SER-1470.
2. It is stated in the DAR as well charge sheet that on 02.02.2021 Sh.
Yogesh/deceased was the pillion rider on a scooty bearing No.
DL-3SER-1470 which was driven by R-1/driver Mr. Apurva
Halder. The said scooty was driven in a rash manner and at a high
speed which lost control and hit a divider. Due to the accident, the
scooty rider i.e. R-1/driver Sh. Apurva Halder received injuries
and pillion rider Sh. Yogesh died.
3. As per the charge sheet, the vehicle was driven by respondent no.
1 driver, owned by respondent no.2 and insured by respondent no.
3.
4. During the proceedings issues were framed on 28.09.2022. Written
submissions were filed by the parties in the prescribed format.
II. FRAMING OF ISSUES
5. Vide order dated 28.09.2022, following issues were framed by this
Tribunal:-
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Smt. Mithlesh & Ors. Vs Mukesh Kumar & Anr.
1.Whether the deceased died as a consequence of
negligence of respondent no. 1 Apurva Halder in
driving the offending vehicle bearing registration
no. DL-3SER-1470(offending vehicle) owner by
respondent no. 2 and insured by respondent no. 3?
OPP.
2. Whether the petitioners were entitled to any
compensation ? If so, to what extent and from
whom ? OPP
3. Relief.
Recording of evidence:
6. In the present case, PW-1 Smt. Pragati Kharel examined herself
and tendered her evidence by way of affidavit as Ex. PW 1/1.
She also exhibited the following documents viz., Ex.PW-1/1 –
Copy of my Aadhar Card (OSR), Ex.PW-1/2 – Copy of my PAN
Card (OSR), Ex.PW-1/3 – Copy of Aadhar card of P-2 – Trisha
Adhikari (OSR), Ex.PW-1/4 – Copy of PAN card of P-2 – Trisha
Adhikari (OSR), Ex.PW-1/5 – Copy of Aadhar card of P-3 –
Tanishka Adhikari (OSR), Ex.PW-1/6 – Copy of PAN card of
P-3 – Tanishka Adhikari (OSR), Ex.PW-1/7 – Copy of Aadhar
card of P-4 – Poonam (OSR), Ex.PW-1/8 – Copy of PAN card
of P-4 – Poonam (OSR), Ex.PW-1/9 – Copy of Aadhar card of
P-5 – Himlal (OSR), Ex.PW-1/10 – Copy of PAN card of P-5 –
Himlal (OSR), Ex.PW-1/11 – Copy of Aadhar card of deceased
(Yogesh) (OSR), Ex.PW-1/12 – Copy of PAN card of deceased
(Yogesh) (OSR), Ex.PW-1/13 (Colly) 1-5 pages – Copy of
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Smt. Mithlesh & Ors. Vs Mukesh Kumar & Anr.
qualification documents of deceased (Yogesh) (OSR),
Ex.PW-1/14 – Copy of Death Certificate of deceased (Yogesh)
(OSR), Ex.PW-1/15 – Copy of I.D. card issued by Railway
Department in favour of deceased (Yogesh) filed by the I.O.
with DAR. (Objected to by the counsel of the insurance
company as the said document is a photocopy and is not verified
by the I.O. and hence ought to have been marked, therefore the
same is now de-Exhibited and is marked as ‘A’ mark),
Ex.PW-1/16 – Verified copy of salary slip issued by Railway
Department in favour of deceased (Yogesh) filed by the I.O.
with DAR.
7. In her affidavit-in-chief she stated that on 02.02.2021 her
husband Sh. Yogesh was travelling as a pillion rider in scooty
no. DL-3SER-1470, driven by R-1 Mr. Apoorv Haldar. The
scooty was driven in rash manner at a high speed and met with
an accident. The pillion rider Mr Yogesh suffered injuries and
died.
8. She stated that deceased Mr. Yogesh was the sole bread earner
of the family and his age was around 34 years 9 months at the
time of accident. He was educated till 12 th standard and was
working on the post of Tech-II in Northern Railway and was
earning a gross salary of Rs. 39,321/- p.m.
9. She stated that deceased is survived by herself, two minor
children and parents.
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Smt. Mithlesh & Ors. Vs Mukesh Kumar & Anr.
10.PW-1 in her cross-examination stated that after the death of her
husband she has got compassionate appointment in Northern
Railway and earning a gross salary of Rs. 32,000/- p.m. She
clarified that she has not remarried. She confirmed that her
husband did not posses driving license. She also admitted that
she was not present at the spot when the accident happened. She
stated that she cannot say who was driving the scooty when the
accident occurred. She clarified that no ex-gratia compensation
was awarded to her by the Northern Railways.
11.PW-2 is Mr. Deepak Kumar, Sr. Section Engineer from Northern
Railway Kishan Ganj, Delhi. He proved on record following
documents: Attested copy of his service record as Ex. PW-2/1
(colly) (15 pages), attested salary slips of December, 2020 and
January, 2021 are Ex. PW-2/2 (colly) (2paged), attested copy of
death certificate is Ex. PW-2/3, attested copy of
notice/communication dated 12.02.2021 issued after the death
of Mr. Yogesh is Ex. PW-2/4 and copy of my identity card as
Ex. PW2/R-3/A(OSR).
12.He stated that deceased Mr. Yogesh was permanent employee in
Northern Railway and was getting gross salary of Rs. 39,321/-
p.m. He stated that deceased Mr. Yogesh joined the service on
08.07.20024 and was to retire on May, 2040. In his cross-
examination he clarified that NHA in salary means National
Holiday Allowance which is paid when an employee does duty
on national and gazetted holidays and not otherwise. He
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Smt. Mithlesh & Ors. Vs Mukesh Kumar & Anr.
clarified that the travel allowance is paid to an employee for
performing official duty. He clarified that transport allowance is
given to employee for the purpose of traveling to and fro from
home to office. He stated that a compensation of Rs. 38,113/-
has been given under CGIS to the family of deceased. He
clarified that no ex-gratia compensation/ personal accident
cover is provided to the family of deceased. He stated that
compassionate appointment is granted to the wife of the
deceased. He stated that no income tax was deducted from the
salary of deceased.
13.PW-3 is SI Pramod Kumar. He stated that further investigation
of FIR NO. 13/21, PS: Connaught Place, Delhi was assigned to
him. He proved on record documents: site plan was prepared
and the same is Ex.PW-3/1, mechanical inspection of offending
scooty was got conducted and the same is Ex.PW-3/2, post-
mortem on the body of deceased was also got conducted and the
same is Ex.PW-3/3 (Colly), notice U/s 133 of MV Act was given
to registered owner of the offending scooty and the registered
owner gave her reply on the said notice and same is Ex.PW-3/4,
copy of arrest memo and bail bond are now Ex.PW-3/5 (Colly)
(two pages).
14.He stated that salary slip for the month of January, 2021 was
verified from the concerned department and was filed along
with the DAR. In his cross-examination he admitted that as per
the MLC, both Mr. Apoorv Haldar and deceased Mr. Yogesh
DAR No. 466/2021 Page. 8 of 46
Smt. Mithlesh & Ors. Vs Mukesh Kumar & Anr.
were found alcohol positive. He admitted that the blood
sample of Mr. Apurva Halder was not collected for analysis of
alcohol. He admitted that initially Mr. Apoorv Haldar who was
complainant in the FIR and had stated that Mr. Yogesh was
driving the vehicle and he was sitting as a pillion rider. He stated
that no CCTV was found installed at the site of accident. He
denied the suggestion that the vehicle was driven was deceased
Mr. Yogesh.
15.No evidence was led by R-1/driver and R-2/registered owner.
16.No evidence was also led by the R-3/insurance company.
III. ARGUMENTS OF COUNSELS OF THE PARTIES
17.Ld. Counsel for the claimant submitted that they have filed the
copy of FIR and charge sheet. He submitted that the said record
clearly shows that the offending vehicle bearing no.
DL-3SER-1470 was seized during the investigation and later on
released on Superdari. He submitted that the charge sheet in that
case was already filed against the driver Sh. Apurva Halder
under Section 279/304-A IPC which clearly establishes the rash
driving on part of the offending vehicle.
18.Ld. Counsel for the petitioners submitted that the deceased was
aged about 34 years at the time of accident and was in
permanent employment and was earning a gross salary of Rs.
39,321/- per month from the Northern Railways. He submitted
DAR No. 466/2021 Page. 9 of 46
Smt. Mithlesh & Ors. Vs Mukesh Kumar & Anr.
that the deceased is survived by his wife, two children and
parents who were dependent upon his income.
19.He submits that the petitioners are required to prove their case
by preponderance of probabilities. He submits that the charge-
sheet filed against the accused Apurva Halder clearly shows the
rash driving on his part which led to accident. He submits that
R-1/driver and R-2/registered owner failed to appear and rebut
the case. He submits that upon filing of charge-sheet, no further
evidence is required to prove the negligence. He has relied upon
the the judgments in the cases of Bajaj Allianz General
Insurance Co. Ltd. Vs. Meera Devi & Ors., 2021 LawSuit(Del)
858; Anita Sharma & Ors. Vs. New India Assurance Co. Ltd.,
2020 LawSuit(SC) 747; and M/S ICICI Lombard General
Insurance Co. Ltd. Vs. Renu Jha & Ors.(Oriental Insurance Co.
Ltd.), 2024 LawSuit (Del) 3786.
20.Ld. Counsel for the petitioner further submitted that the FIR is
not a complete code. He submits that merely because in the FIR
a different person is recorded as a driver does not dent the
conclusion arrived by the Police after discrete and thorough
investigation. He has relied upon the Judgment of Hon’ble High
Court of Delhi in the case of Bijendri W/o Nirdosh & Ors.Vs.
Shyamveer Singh S/o Bal Swaroop Singh & Ors., 2024 LawSuit
(Del) 5589.
21.He submits that the smell of alcohol cannot be concluded as
consumption of alcohol in the absence of specific test giving the
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Smt. Mithlesh & Ors. Vs Mukesh Kumar & Anr.
degree of consumption. He has relied upon the judgment of
Hon’ble High Court of Delhi in the case of United India
Insurance Co. Ltd. Vs. Raghav Singh & Ors., MAC. APP.
788/2019 decided on 17.09.2019 (DHC).
22.He submits that the insurance company has alleged contributory
negligence but the same cannot be said to be applicable in the
case of pillion rider. He has relied upon the judgments in the
cases of Isaqkhan Mustafakhan Pathan Vs. Shriram Shankarlal
Zawar: Nandkishor Shriram Zawar, 2019 LawSuit(Bom) 148
and Sunita & Ors. Vs. Shamsheer Alam & Ors (The Oriental
Insurance Co. Ltd.), MAC APP. 471/2018, decided on
20.12.2023 (DHC).
23.Ld. Counsel for petitioner further submits that the
compassionate appointment of the wife of the petitioner in
Northern Railway cannot be taken as a ground to reject the
compensation. He has relied upon the judgment in the cases of
National Insurance Co. Ltd. Vs. Rekhaben & Ors., 2017
LawSuit(SC) 558, Rajasthan State Road Transport Corporation
Vs. Danish Khan, 2019 LawSuit(SC) 1717 & Sebastiani Lakra
Vs. National Insurance Co. Ltd. & Ors., 2018 LawSuit(SC)
1039.
24.R-1/driver and R-2/registered owner were proceeded ex-parte
vide order dated 28.09.2022. Ld. Counsel for insurance
company submitted that in the FIR lodged by Apurva Halder it
is stated that the scooty was driven by deceased Yogesh and
DAR No. 466/2021 Page. 11 of 46
Smt. Mithlesh & Ors. Vs Mukesh Kumar & Anr.
complainant Apurva Halder was a pillion rider when the
accident had occurred. She submitted that Mr. Apurva Halder in
his complaint stated that the scooty was at a high speed and was
rashly driven by Mr. Yogesh due to which it got imbalanced and
collided with the divider. She submitted that deceased Mr.
Yogesh himself is a tort-feaser and his family cannot claim
compensation. She submitted that the post-mortem report of
deceased Mr. Yogesh records that a yellowish fluid with alcohol
like smell was found from his stomach.
25.She submits that the police has filed a charge-sheet against Mr.
Apurva Halder without giving any specific reasons as to how
the version of FIR was not found credible and insurance
company cannot be saddled with the liability. She further
submitted that deceased Mr. Yogesh was not having any license
and there as breach of policy condition as the insured vehicle
was driven by a person without driving license.
IV. ISSUE WISE ANALYSIS & FINDINGS THERETO
(a) Issue No.1: Whether the deceased died as a consequence of
negligence of respondent No. 1 Apurva Halder in driving the offending
vehicle bearing registration No. DL-3SER-1470, owned by
respondent no. 2 and insured by respondent no. 3? OPP.
i. Presumption qua complicity upon filing chargesheet:
26.Rule 21 of Annexure XIII of The Central Motor Vehicles Rules,
1989 mandates as follows:-
DAR No. 466/2021 Page. 12 of 46
Smt. Mithlesh & Ors. Vs Mukesh Kumar & Anr.
21. Claims Tribunal shall treat Dar as a claim petition for
compensation under Sub-Section (4) of Section 166 of the
Motor Vehicles Act, 1988 (1) The Claims Tribunal shall treat
the DAR filed by the Investigating Officer as a claim petition
under Section (4) of Section 166 of the Motor Vehicles Act,
1988. However, where the Investigating Officer is unable to
produce the claimant(s) on the first date of hearing the Claims
Tribunal shall register the DAR as a claim petition after the
appearance of the claimant(s).
(2) where the claimant(s) have filed a separate claim petition,
the DAR may be tagged along with the claim petition.
(3) If the Report under Section 173 of the Code of Criminal
Procedure, 1973 (2) of 1974 has not been filed at the time of
filing of the DAR, the Claims Tribunal may either wait till
filing of the Report under Section 173 of the said Code of
Criminal Procedure or record the statement of the eye
witness(es) to satisfy itself with respect to the negligence
before passing the award.
(4) The Claims Tribunal shall register the FAR as a
Miscellaneous application and the IAR as well as DAR shall
be taken on record in the same Miscellaneous application.
27. In Bajaj Allianz General Insurance Company Ltd. Vs. Meera Devi
& Ors decided on 16.02.2021, 2021 LawSuit (Del) 858 it was
held:
8. ….. In view of Delhi Motor Accident Claim Tribunal Rules,
2008, contents of DAR had to be presumed to be correct and
read in evidence without formal proof of the same unless proof
to the contrary was produced……..”.
28. In a recent order dated 25.02.2025, passed in Ranjeet & Anr v
Abdul Nayem Keb & Anr in SLP (c) 10351/2019 , it was held in
trenchant terms as thus:
“It is settled in law that once a charge sheet has been filed and
the driver has been held negligent, no further evidence is
required to prove that the bus was being negligently driven by
the bus driver. Even if the eyewitnesses are not examined, thatDAR No. 466/2021 Page. 13 of 46
Smt. Mithlesh & Ors. Vs Mukesh Kumar & Anr.
will not be fatal to prove the death of the deceased due
to negligence of the bus driver.”
ii. The evidence on record qua negligence.
29.Claimant has placed on record the certified copy of charge-sheet
in FIR no. 13/2021, PS Connaught Place, Delhi. Record shows
that the charge sheet u/s 279/304-A IPC was filed in the present
case against the driver/R-1 Mr. Apurva Halder. The charge sheet
records that the due to rash driving of the driver / (R-1) of the
offending vehicle, accident happened and death of Mr. Yogesh
occurred.
30. Perusal of the FIR shows that the complaint was lodged by Mr.
Apurva Halder/R-1. In FIR he stated that the scooty/insured
vehicle was driven by deceased Mr. Yogesh who was driving it
rashly at high speed. Mr. Yogesh lost the balance of the vehicle
and got collided with the divider and the accident happened.
31.During investigation, Mr Apurva Halder changed the version.
He stated that the scooty/insured vehicle was driven by him and
deceased was the pillion rider. His eyes got blinded due to light
of the vehicle coming from the opposite direction and he lost the
balance of the scooty/insured vehicle and the accident occurred.
During investigation police also recorded the statement of
eyewitnesses Mr. Jitmanyu Yadav and came to the conclusion
that the vehicle was driven by R-1/Apurva Halder and charge-
sheeted him for the offence U/s 279/304A IPC.
DAR No. 466/2021 Page. 14 of 46
Smt. Mithlesh & Ors. Vs Mukesh Kumar & Anr.
32.It is the settled legal position that the contents of the DAR
have to be presumed to be correct and needs to be read in
evidence without formal proof. The examination of
eyewitnesses is not particularly necessary to prove the
negligence as the standard of proof is the preponderance of
probabilities. Reference in this regard can be made in the
judgments: Bajaj Allianz General Insurance Co. Ltd. Vs. Meera
Devi & Ors., 2021 LawSuit (Del) 858,
“8. In view of Delhi Motor Accident Claim Tribunal Rules
2008, contents of DAR had to be presumed to be correct
and read in evidence without formal proof of the same
unless proof to the contrary was produced”
33.In Ranjeet & Anr. Vs. Abdul Kayam Neb & Anr., 2025 LawSuit
(SC) 327, it was held that:
“4. It is stated in law that once a charge sheet has been filed
and the driver has been held negligent, no further evidence
is required to prove that the bus was being negligently
driven by the bus driver. Even if the eyewitnesses are not
examined, that will not be fatal to prove the death of the
deceased due to negligence of the bus driver”.
34. In M/S ICICI Lombard General Insurance Co. Ltd. Vs. Renu
Jha & Ors., 2024, 2024 LawSuit (Del) 3786, it has been held
that:
“38.Upon perusal of the aforementioned case, this Court is
of the opinion that examination of eye-witnesses are not
particularly necessary to prove negligence, as the standard
of proof is that of preponderance of probabilities.
Therefore, the contention of the appellant with regards to
the same cannot be taken as conclusive.”
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Smt. Mithlesh & Ors. Vs Mukesh Kumar & Anr.
35.In the present case, police has examined an eye-witnesses and
has conducted investigation to reach the conclusion that the
vehicle was driven by R-1/Apurva Halder. DAR is also filed
against Mr. Apurva Halder as driver of the offending vehicle.
R-1 Mr. Apurva Halder and R-2/registered owner have failed to
step into the witness box to rebut the fact and plea of the
petitioner that the vehicle was driven rashly by R-1 Mr. Apurva
Halder. Insurance company has failed to lead to any positive
evidence to rebut the conclusion arrived in the charge-sheet.
36.Insurance company has taken a plea that the post mortem report
records that a fluid like substance was found in the stomach of
deceased with smell of alcohol. To appreciate this contention it
will be prudent to refer to the observation made by Hon’ble
High Court Delhi in the case of United India Insurance Co. Ltd.
Vs. Raghav Singh & Ors., MAC APP. 788/2019, decided on
17.09.2019(DHC).
“2.On a query put to the learned counsel for the appellant
whether the deceased had died on the spot and/or had been
brought to the hospital and then declared dead, the answer
is in the affirmative for the latter. In the circumstances
when there is no breath, the likelihood of detection of
alcohol in the breath is an impossibility. Even if there was
smell of alcohol near the mouth of the deceased, the
degree of the alcohol in his body should have been tested
to ascertain whether it was in excess of the permissible
limits. In the absence of any evidence in this regard, the
drunkenness of the rider cannot be presumed.
Accordingly, no culpability or negligence can be
attributed to the deceased rider. The learned counsel for
the appellant submits that MLC of the injured too
recorded detection of alcohol in his breath and a
chargesheet was filed against him. Be that as it may, for aDAR No. 466/2021 Page. 16 of 46
Smt. Mithlesh & Ors. Vs Mukesh Kumar & Anr.
rider on a motorcycle or for a passenger in motor vehicle
to have alcohol in his breath is not prohibited. It is
impairment of the driving ability of the rider or the driver
that needs to be determined. That determination was not
done and cannot be done now.”
37.The Hon’ble High Court of Rajasthan in United India Insurance
Co. Ltd. v. Jayantilal Mochi, 2024 SCC OnLine Raj 3822 held
that:
“23. Furthermore, this Court also takes into consideration
the judgment passed by the Supreme Court in the case
of Jiju Kuruvila v. Kunjujamma Mohan,, (2013) 9 SCC
166 : AIR 2013 SC 2293, wherein it was observed by the
Supreme Court that even when the Post-Mortem Report
had specifically mentioned that there was a strong smell
of spirit, however, the same cannot lead to the conclusion
that the deceased had been negligent while driving the
vehicle. The relevant para is reproduced as under:
“25. Post Mortem report, Ext.-A5 shows the condition of
the deceased at the time of death. The said report reflects
that the deceased had already taken meal as his stomach
was half full and contained rice, vegetables and meat
pieces in a fluid with strong smell of spirit.
26. The aforesaid evidence, Ext.-A5 clearly suggests that
the deceased had taken liquor but on the basis of the same,
no definite finding can be given that the deceased was
driving the car rashly and negligently at the time of
accident. The mere suspicion based on Ext.- B2, ‘Scene
Mahazar’ and the Ext.-A5, post mortem report cannot
fake the place of evidence, particularly, when the direct
evidence like PW 3, independent eye-witness, Ext.-
Al(FIR), Ext.-A4 (charge-sheet) and Ext.-Bl (F.I.
statement) are on record.”
Therefore, in the present case too, merely a poor smell
of alcohol as determined by the Doctor cannot lead to the
conclusion that the deceased, Late Sanjay Kumar had
been negligent while driving the motorcycle at the time
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Smt. Mithlesh & Ors. Vs Mukesh Kumar & Anr.
of the accident as he was under the influence of
alcohol.”
38.From the aforesaid judgment it is clear that merely a smell of
alcohol is not a conclusive test to determine the consumption of
alcohol. A blood test should have been conducted to ascertain
quantum of alcohol consumed beyond the permissive limits.
PW-3 SI Pramod Kumar is his cross-examination admitted that
blood sample was not collected for analysis of alcohol.
Therefore, the observations regarding the smell of alcohol found
in the stomach are insignificant in the absence of any cogent
evidence regarding degree of alcohol in the blood. Moreover, as
per the charge-sheet, the deceased Mr. Yogesh was a pillion rider
and the plea regarding consumption of alcohol is irrelevant in
this case.
39.Insurance company has also taken a plea regarding contributory
negligence. As per the charge-sheet the deceased was a pillion
rider, it is a settled legal position that pillion rider cannot be said
to sharing of control in driving the vehicle and he cannot be
considered as a back seat driver. Reference in this regard can be
made in the case of Isaqkhan Mustafakhan Pathan Vs. Shriram
Shankarlal Zawar & Ors., 2019 LawSuit(Bom) 148.
40.From the aforesaid, it is clear that the accident had occurred due
to rash driving of offending / insured vehicle by R-1/ driver.
DAR No. 466/2021 Page. 18 of 46
Smt. Mithlesh & Ors. Vs Mukesh Kumar & Anr.
iii. Preponderance of probabilities:
41.It is trite law that in a proceeding before the Claims Tribunal,
the claimant does not have to establish negligence on the part of
the driver respondent beyond reasonable doubt. The standards
of establishing negligence is predicated on preponderance of
probabilities. In the present case too, negligence has been
established on this principle.
42. In this context, it would be useful to peruse Mathew Alexander
v. Mohd. Shafi, (2023) 13 SCC 510 wherein it was observed as
thus:
“In this context, we could refer to the judgments
of this Court in N.K.V. Bros. (P) Ltd. v. M.
Karumai Ammal [N.K.V. Bros. (P) Ltd. v. M.
Karumai Ammal, (1980) 3 SCC 457 : 1980 SCC
(Cri) 774] , wherein the plea that the criminal
case had ended in acquittal and that, therefore,
the civil suit must follow suit, was rejected. It
was observed that culpable rashness under
Section 304-AIPC is more drastic than
negligence under the law of torts to create
liability. Similarly, in Bimla Devi v. Himachal
RTC [Bimla Devi v. Himachal RTC, (2009) 13
SCC 530 : (2009) 5 SCC (Civ) 189 : (2010) 1
SCC (Cri) 1101] (“Bimla Devi”), it was observed
that in a claim petition filed under Section 166 of
the Motor Vehicles Act, 1988, the Tribunal has to
determine the amount of fair compensation to be
granted in the event an accident has taken place
by reason of negligence of a driver of a motor
vehicle. A holistic view of the evidence has to be
taken into consideration by the Tribunal and strict
proof of an accident caused by a particular
vehicle in a particular manner need not be
established by the claimants. The claimants have
to establish their case on the touchstone ofDAR No. 466/2021 Page. 19 of 46
Smt. Mithlesh & Ors. Vs Mukesh Kumar & Anr.
preponderance of probabilities. The standard of
proof beyond reasonable doubt cannot be applied
while considering the petition seeking
compensation on account of death or injury in a
road traffic accident. To the same effect is the
observation made by this Court in Dulcina
Fernandes v. Joaquim Xavier Cruz [Dulcina
Fernandes v. Joaquim Xavier Cruz, (2013) 10
SCC 646 : (2014) 1 SCC (Civ) 73 : (2014) 1 SCC
(Cri) 13] which has referred to the aforesaid
judgment in Bimla Devi [Bimla Devi v.
Himachal RTC (2009) 13 SCC 530.”
iv. Finding:
43.In view of foregoing discussion, it stands proved on the
touchstone of preponderance of probabilities that the aforesaid
accident took place due to rash and negligent driving of the
transgressing/offending vehicle bearing registration no.
DL-3SER-1470 and the said vehicle at that time was driven by
respondent no. 1, owned by respondent no. 2 and insured by
respondent no.3. Hence, issue no. 1 is decided in favour of the
claimant and against the respondents. It is clarified that the
finding given are limited for the purposes of this inquiry and
shall not impact the trial of the criminal case.
(b) Issue No.2: Whether claimant is entitled to compensation, and
to what amount ?
DAR No. 466/2021 Page. 20 of 46
Smt. Mithlesh & Ors. Vs Mukesh Kumar & Anr.
i. Principles qua assessment of compensation:
44.Before adverting to the submissions of the counsels in this
regard, it would be apposite to refer to the law of the land qua
this aspect. The law has been enunciated by Hon’ble Supreme
Court in Sarla Verma & Ors. v. Delhi Transport Corporation &
Ors. (2003) 6SCC 121 and National Insurance Company
Limited v. Pranay Sethi & Ors.(2017) 16 SCC 680.
45.An essential ingredient of the award is the loss of dependency.
To calculate the same, it would be of utmost significance to
peruse the following seminal directions issued in Sarla Verma
(supra):
“18.Basically only three facts need to be established by the
claimants for assessing compensation in the case of death:
(a)age of the deceased;
(b) income of the deceased; and
(c) the number of dependants
The issues to be determined by the Tribunal to arrive at the
loss of dependency are:
(i) additions/deductions to be made for arriving at the
income;
(ii) the deduction to be made towards the personal living
expenses of the deceased; and
(iii) the multiplier to be applied with reference to the age of
the deceased.
If these determinants are standardised, there will be uniformity
and consistency in the decisions. There will be lesser need for
detailed evidence. It will also be easier for the insurance
companies to settle accident claims without delay
19.To have uniformity and consistency, the Tribunals should
determine compensation in cases of death, by the following
well-settled steps:
Step 1 (Ascertaining the multiplicand)
The income of the deceased per annum should be determined.
Out of the said income a deduction should be made in regardDAR No. 466/2021 Page. 21 of 46
Smt. Mithlesh & Ors. Vs Mukesh Kumar & Anr.
to the amount which the deceased would have spent on himself
by way of personal and living expenses. The balance, which is
considered to be the contribution to the dependant family,
constitutes the multiplicand.
Step 2 (Ascertaining the multiplier)
Having regard to the age of the deceased and period of active
career, the appropriate multiplier should be selected. This does
not mean ascertaining the number of years he would have lived
or worked but for the accident. Having regard to several
imponderables in life and economic factors, a table of
multipliers with reference to the age has been identified by this
Court. The multiplier should be chosen from the said table
with reference to the age of the deceased.
Step 3 (Actual calculation)
The annual contribution to the family (multiplicand) when
multiplied by such multiplier gives the “loss of dependency”
to the family.”
46.To ascertain the ‘multiplier’ mentioned in Step 2 above, it was
further laid down in Sarla Verma (supra) as thus:
“42 We therefore hold that the multiplier to be used
should be as mentioned in Column (4) of the table
above (prepared by applying Susamma Thomas,
Trilok Chandra and Charlie) which starts with an
operative multiplier of 18 (for the age groups of 15 to
20 and 21 to 25 years,) reduced by one unit for every
years that is M-17 for 26 to 30 years, M-16 for 31 to
35 years , M-15 for 36 to 40 years, M-14 for 41 to 45
years, and M -13 for 46 to 50 years, then reduced by
two units for every five years, that is, M-11 for 51-55
years, M-9 for 56 to 60 years ,M-7 for 61 to 65 years
and M- 5 for 66 to 70 years.”
47. Further, in terms of the mandate of Rajesh Tyagi v Jaibir Singh
FAO 842/2003, which is the cause célèbre qua cases pertaining
to motor accident claims, the claimant filed Form XIII of the
Scheme for Motor Accident Claims qua compensation under
DAR No. 466/2021 Page. 22 of 46
Smt. Mithlesh & Ors. Vs Mukesh Kumar & Anr.
various heads which have been elucidated in the paragraphs
hereafter.
ii. Monthly Income of the deceased:
48.PW-2 Mr. Deepak Kumar was Mr. Sr. Section Officer from
Northern Railway. In his testimony, he stated that deceased Mr.
Yogesh was permanent employee of Northern Railway. He
joined services on 08.07.2004 and was to retire on May 2046 and
he was getting a gross salary of Rs. 39,321/- and proved on
record his salary slip for Jan, 2021 which records his gross
salary.
49. In his cross-examination he clarified that national holiday
allowance is paid once an employee performs duty on gazetted
holidays and not otherwise. He stated that travel allowance is
paid when an employee goes anywhere during the course of duty.
He clarified that transport allowance is paid for traveling to and
fro from office to home. He stated that a compensation of Rs.
38,113/- was provided under CGIS to the family of the deceased.
He stated that a job is provided to wife of the deceased on
compassionate grounds. He clarified that no income tax was
deducted from the salary of the deceased.
50. The salary slip for the month of Jan, 2021 shows the salary of
Rs. 39,321/- which includes Rs. 477/- towards the national
holiday allowance. As per the clarification given by PW-2 in his
testimony, NHA is given only on performing duty on
DAR No. 466/2021 Page. 23 of 46
Smt. Mithlesh & Ors. Vs Mukesh Kumar & Anr.
gazetted/national holidays and therefore the same cannot be
considered as a regular component of the salary. Accordingly, the
salary of the deceased Sh. Yogesh is considered as Rs. 38,844/-.
51. The insurance company has taken a plea that as PW-1 Smt.
Pragati Kharel/wife of the deceased has got a compassionate
appointment, therefore plea of compensation cannot be
considered. To understand this issues it would be relevant to
reproduce the mandate given by Hon’ble Supreme Court of India
in case of: Rajasthan State Road Transport Corporation Vs.
Danish Khan & Ors., 2019 LawSuit(SC) 171.
“10.It is useful to refer to a judgment of this Court in
National Insurance Company Limited v. Rekhaben and
Others, 2017 13 SCC 547. The question that arose for
consideration of this Court related to the deduction of salary
that was earned by the claimant therein after being
appointed on compassionate grounds while calculating the
compensation payable to her under the Act for the death of
her husband. It was held that the salary earned by
compassionate appointment cannot be deducted from the
compensation which the claimant is entitled under the Act.
However, it was made clear that the salary which flowed
from the compassionate appointment that was provided by
the tortfeasor was liable to be deducted if the employer was
the owner of the offending vehicle and thus liable to pay
compensation under the Act. In other words, the employer
who has provided compassionate appointment can claim
deduction of the salary of the dependent while calculating
if he is liable to pay compensation under the Act, being the
owner of the offending vehicle.”
52.The Hon’ble Supreme Court of India in the case of National
Insurance Co. Ltd. Vs. Rekhaben & Ors., 2017 LawSuit(S) 558
held as:
DAR No. 466/2021 Page. 24 of 46
Smt. Mithlesh & Ors. Vs Mukesh Kumar & Anr.
“18.In the present cases, the claimants were offered
compassionate employment. The claimants were not
offered any sum of money equal to the income of the
deceased. In fact, they were not offered any sum of money
at all. They were offered employment and the money they
receive in the form of their salary, would be earned from
such employment. The loss of income in such cases cannot
be said to be set off because the claimants would be
earning their living. Therefore, we are of the view that the
amount earned by the claimants from compassionate
appointments cannot be deducted from the quantum of
compensation receivable by them under the Act.”
53.The Hob’ble Supreme Court of India in case of Sabestian Lakra
Vs. National Insurance Co. Ltd., 2018 LawSuit(SC) 1039 held
that:
“12.The law is well settled that deductions cannot be
allowed from the amount of compensation either on
account of insurance, or on account of pensionary benefits
or gratuity or grant of employment to a kin of the
deceased. The main reason is that all these amounts are
earned by the deceased on account of contractual relations
entered into by him with others. It cannot be said that
these amounts accrued to the dependents or the legal heirs
of the deceased on account of his death in a motor
accident. The Claimants/dependents are entitled to ‘just
compensation’ under the Motor Vehicles Act as a result of
the death of the deceased in a motor vehicle accident.
Therefore, the natural corollary is that the advantage
which accrues to the estate of the deceased or to his
dependents as a result of some contract or act which the
deceased performed in his life time cannot be the outcome
or result of the death of the deceased even though these
amounts may go into the hands of the dependents only
after his death.”
54.From the aforesaid judgments it is clear that the
claimants/defendants are entitled to just compensation under
Motor Vehicles Act. The salary earned by the kin of the deceased
DAR No. 466/2021 Page. 25 of 46
Smt. Mithlesh & Ors. Vs Mukesh Kumar & Anr.
from compassionate appointment cannot be deducted from the
compensation. In the present case, the compassionate
appointment is given by Northern Railway and not by the
registered owner of the vehicle and therefore the compassionate
appointment does not act any hurdle in grant of compensation to
the family of the deceased. Thus, the monthly income of the
deceased is quantified as Rs. 38,844/-.
iii. Future prospects:
55.To factor into account future prospects, it would be apt to refer
to National Insurance Co Ltd v Pranay Sethi & Ors. (2017) 16
SCC 680 wherein it was laid down as thus:
“59. In view of the aforesaid analysis, we proceed to
record our conclusions:
59.3 While determining the income, an addition of
50% of actual salary to the income of the deceased
towards future prospects, where the deceased had a
permanent job and was below the age of 40 years,
should be made. The addition should be 30%, if the age
of the deceased was between 40 to 50 years. In case the
deceased was between the age of 50 to 60 years, the
addition should be 15%. Actual salary should be read
as actual salary less tax.
59.4 In case the deceased was self-employed or on a
fixed salary, an addition of 40% of the established
income should be the warrant where the deceased was
below the age of 40 years. An addition of 25% where
the deceased was between the age of 40 to 50 years and
10% where the deceased was between the age of 50 to
60 years should be regarded as the necessary method
of computation. The established income means the
income minus the tax component.
59.5 For determination of the multiplicand, the
deduction for personal and living expenses, the
tribunals and the courts shall be guided by paras 30 toDAR No. 466/2021 Page. 26 of 46
Smt. Mithlesh & Ors. Vs Mukesh Kumar & Anr.
32 of Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC
121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri)
1002] which we have reproduced hereinbefore.
59.6 The selection of multiplier shall be as indicated in
the Table in Sarla Verma [Sarla Verma v. DTC, (2009)
6 SCC 121 read with para 42 of that judgment
59.7 The age of the deceased should be the basis for
applying the multiplier.
59.8 Reasonable figures on conventional heads,
namely, loss of estate, loss of consortium and funeral
expenses should be Rs 15,000, Rs 40,000 and Rs
15,000 respectively. The aforesaid amounts should be
enhanced at the rate of 10% in every three years.”
56.To determine the age of the deceased, the claimants has filed on
record the Aadhar Card and PAN Card which shows date of birth
as 25.05.1986. The deceased was around 34 years and 8 months
old on the date of death. As per mandate in Sarla Verma (Supra)
and Pranay Sethi (Supra) the future prospects for a person who
is permanently employed and aged less than 40 years is 50%
and accordingly the same is calculated as Rs. 19,422/-.
iv. Personal expenses of the deceased:
57.The Expenses incurred by the deceased in himself are deducted
while calculating the loss of dependency. To calculate the
personal expenses, recourse can be had to the following
instructions of Sarla Verma (supra) which were approved by the
Constitutional Bench in Pranay Sethi(supra):
“30.Though in some cases the deduction to be made towards
personal and living expenses is calculated on the basis of units
indicated in Trilok Chandra [(1996) 4 SCC 362] , the general
practice is to apply standardised deductions. Having considered
several subsequent decisions of this Court, we are of the viewDAR No. 466/2021 Page. 27 of 46
Smt. Mithlesh & Ors. Vs Mukesh Kumar & Anr.
that where the deceased was married, 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, one-fourth (1/4th) where the number of dependent
family members is 4 to 6, and one-fifth (1/5th) where the
number of dependent family members exceeds six.
31.Where the deceased was a bachelor and the claimants are
the parents, the deduction follows a different principle. In
regard to bachelors, normally, 50% is deducted as personal and
living expenses, because it is assumed that a bachelor would
tend to spend more on himself. Even otherwise, there is also the
possibility of his getting married in a short time, in which event
the contribution to the parent(s) and siblings is likely to be cut
drastically. Further, subject to evidence to the contrary, the
father is likely to have his own income and will not be
considered as a dependant and the mother alone will be
considered as a dependant. In the absence of evidence to the
contrary, brothers and sisters will not be considered as
dependants, because they will either be independent and
earning, or married, or be dependent on the father.
32.Thus even if the deceased is survived by parents and
siblings, only the mother would be considered to be a
dependant, and 50% would be treated as the personal and living
expenses of the bachelor and 50% as the contribution to the
family. However, where the family of the bachelor is large and
dependent on the income of the deceased, as in a case where he
has a widowed mother and large number of younger non-
earning sisters or brothers, his personal and living expenses
may be restricted to one-third and contribution to the family
will be taken as two-third.”
58.As per evidence on on record, the deceased is survived by his
wife, parents and two minor children. Accordingly, the
expenditure towards personal expenses is considered as 1/4th in
view of the mandate of Sarla Verma (Supra).
DAR No. 466/2021 Page. 28 of 46
Smt. Mithlesh & Ors. Vs Mukesh Kumar & Anr.
59.Thus, the 1/4nd net deduction in the present case is (Rs.38,844/-
+ Rs. 19,422/-= Rs. 58,266/- divided by 1 / 4) of total income
is calculated as i.e Rs. 14,566/-.
v. Monthly & Annual Loss of dependency:
60.The monthly loss of dependency would be Rs. 43,700/-. The
annual loss of dependency Rs.43700/- X 12 = Rs. 5,24,400/-.
vi. Total Loss of Dependency:
61.Since the deceased was 34 years and 8 months old, the
applicable multiplier in terms of the verdict of Sarla
Verma(supra) is 16. The total loss of dependency is thus Rs.
5,24,400/- X 16 = Rs.83,90,400/-)
vii. Other Heads:
62.In Sarla Verma (supra) it was also laid down that after
calculating the ‘Loss of Dependency’, certain amounts were to
be added under conventional heads such as loss of estate, loss of
consortium etc. The relevant paragraphs of the judgment are
extracted hereunder:
“Thereafter, a conventional amount in the range of Rs 5000 to
Rs 10,000 may be added as loss of estate. Where the deceased
is survived by his widow, another conventional amount in the
range of 5000 to 10,000 should be added under the head of
loss of consortium. But no amount is to be awarded under the
head of pain, suffering or hardship caused to the legal heirs of
the deceased.
The funeral expenses, cost of transportation of the body (if
incurred) and cost of any medical treatment of the deceased
before death (if incurred) should also be added.”
DAR No. 466/2021 Page. 29 of 46
Smt. Mithlesh & Ors. Vs Mukesh Kumar & Anr.
63.The amount qua the above heads were further quantified in
Pranay Sethi(supra), which clarified as thus:
“52. As far as the conventional heads are concerned, we find it
difficult to agree with the view expressed
in Rajesh [Rajesh v. Rajbir Singh, (2013) 9 SCC 54 : (2013) 4
SCC (Civ) 179 : (2013) 3 SCC (Cri) 817 : (2014) 1 SCC (L&S)
149] . It has granted Rs 25,000 towards funeral expenses, Rs
1,00,000 towards loss of consortium and Rs 1,00,000 towards
loss of care and guidance for minor children. The head relating
to loss of care and minor children does not exist.
Though Rajesh [Rajesh v. Rajbir Singh, (2013) 9 SCC 54 :
(2013) 4 SCC (Civ) 179 : (2013) 3 SCC (Cri) 817 : (2014) 1
SCC (L&S) 149] refers to Santosh Devi [Santosh
Devi v. National Insurance Co. Ltd., (2012) 6 SCC 421 : (2012)
3 SCC (Civ) 726 : (2012) 3 SCC (Cri) 160 : (2012) 2 SCC
(L&S) 167] , it does not seem to follow the same. The
conventional and traditional heads, needless to say, cannot be
determined on percentage basis because that would not be an
acceptable criterion. Unlike determination of income, the said
heads have to be quantified. Any quantification must have a
reasonable foundation. There can be no dispute over the fact
that price index, fall in bank interest, escalation of rates in many
a field have to be noticed. The court cannot remain oblivious to
the same. There has been a thumb rule in this aspect. Otherwise,
there will be extreme difficulty in determination of the same
and unless the thumb rule is applied, there will be immense
variation lacking any kind of consistency as a consequence of
which, the orders passed by the tribunals and courts are likely
to be unguided. Therefore, we think it seemly to fix reasonable
sums. It seems to us that reasonable figures on conventional
heads, namely, loss of estate, loss of consortium and funeral
expenses should be Rs 15,000, Rs 40,000 and Rs 15,000
respectively. The principle of revisiting the said heads is an
acceptable principle. But the revisit should not be fact-centric
or quantum-centric. We think that it would be condign that the
amount that we have quantified should be enhanced on
percentage basis in every three years and the enhancement
should be at the rate of 10% in a span of three years. We are
disposed to hold so because that will bring in consistency in
respect of those heads.”
DAR No. 466/2021 Page. 30 of 46
Smt. Mithlesh & Ors. Vs Mukesh Kumar & Anr.
64.The above verdict was passed in the year 2017. Almost eight
years have elapsed, and therefore the above heads would be
enhanced at the rate of 20%.
viii. Medical Expenses:
65.No amount is claimed under this head.
ix. Compensation for Loss of Consortium:
66.The concept of consortium was expounded in Magnum General
Insurance Co Ltd v Nanu Ram 2018 18 SCC 130 in the
following words:
“21.A Constitution Bench of this Court in Pranay
Sethi [National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16
SCC 680 : (2018) 3 SCC (Civ) 248 : (2018) 2 SCC (Cri) 205]
dealt with the various heads under which compensation is to be
awarded in a death case. One of these heads is loss of
consortium. In legal parlance, “consortium” is a compendious
term which encompasses “spousal consortium”, “parental
consortium”, and “filial consortium”. The right to consortium
would include the company, care, help, comfort, guidance,
solace and affection of the deceased, which is a loss to his
family. With respect to a spouse, it would include sexual
relations with the deceased spouse : [Rajesh v. Rajbir Singh,
(2013) 9 SCC 54.
21.1 Spousal consortium is generally defined as rights pertaining
to the relationship of a husband-wife which allows
compensation to the surviving spouse for loss of “company,
society, cooperation, affection, and aid of the other in every
conjugal relation”. [Black’s Law Dictionary (5th Edn., 1979).]
21.2 Parental consortium is granted to the child upon the
premature death of a parent, for loss of “parental aid, protection,
affection, society, discipline, guidance and training.
21.3 Filial consortium is the right of the parents to compensation
in the case of an accidental death of a child. An accident leading
to the death of a child causes great shock and agony to the
DAR No. 466/2021 Page. 31 of 46
Smt. Mithlesh & Ors. Vs Mukesh Kumar & Anr.
parents and family of the deceased. The greatest agony for a
parent is to lose their child during their lifetime. Children are
valued for their love, affection, companionship and their role in
the family unit.
22 .Consortium is a special prism reflecting changing norms
about the status and worth of actual relationships. Modern
jurisdictions world-over have recognised that the value of a
child’s consortium far exceeds the economic value of the
compensation awarded in the case of the death of a child. Most
jurisdictions therefore permit parents to be awarded
compensation under loss of consortium on the death of a child.
The amount awarded to the parents is a compensation for loss of
the love, affection, care and companionship of the deceased
child.
23. The Motor Vehicles Act is a beneficial legislation aimed at
providing relief to the victims or their families, in cases of
genuine claims. In case where a parent has lost their minor child,
or unmarried son or daughter, the parents are entitled to be
awarded loss of consortium under the head of filial consortium.
Parental consortium is awarded to children who lose their
parents in motor vehicle accidents under the Act. A few High
Courts have awarded compensation on this count [ Rajasthan
High Court in Jagmala Ram v. Sohi Ram, 2017 SCC OnLine Raj
3848 : (2017) 4 RLW 3368; Uttarakhand High Court in Rita
Rana v. Pradeep Kumar, 2013 SCC OnLine Utt 2435 : (2014) 3
UC 1687; Karnataka High Court in Lakshman v. Susheela
Chand Choudhary, 1996 SCC OnLine Kar 74 : (1996) 3 Kant LJ
570] . However, there was no clarity with respect to the
principles on which compensation could be awarded on loss of
filial consortium.
24. The amount of compensation to be awarded as consortium
will be governed by the principles of awarding compensation
under “loss of consortium” as laid down in Pranay
Sethi [National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16
SCC 680 : (2018) 3 SCC (Civ) 248 : (2018) 2 SCC (Cri) 205] .
In the present case, we deem it appropriate to award the father
and the sister of the deceased, an amount of Rs 40,000 each for
loss of filial consortium.”
67.The deceased is survived by his wife, parents and two children.
Thus, On the basis of the above verdict and mandated in Pranay
DAR No. 466/2021 Page. 32 of 46
Smt. Mithlesh & Ors. Vs Mukesh Kumar & Anr.
Sethi‘(Supra), the compensation for Consortium is hereby
quantified as Rs 48,400 X 5 = Rs. 2,42,000/-.
x. Compensation for Loss of Estate:
68.On the basis of the above verdict, the compensation for loss of
estate is hereby quantified as Rs 18,150/-.
xi. Compensation towards Funeral Expenses:
69.On the basis of the above verdict, the compensation of funeral
expenses is hereby quantified as Rs 18,150/-.
xii. Total Compensation:
70. Thus, the total amount of compensation to be awarded is
calculated as follows:
Sr. No. Head Amount
1. Total loss of dependency 83,90,400/-
2. Medical Expenses NIL
3. Compensation for Loss of Rs. 2,42,000/-
Consortium (48,400 x 5)
4. Compensation for Loss of Estate Rs. 18,150/-
5. Compensation towards Funeral Rs. 18,150/-
Expenses
6. Total Compensation Rs.86,68,700/-
DAR No. 466/2021 Page. 33 of 46
Smt. Mithlesh & Ors. Vs Mukesh Kumar & Anr.
(c) Issue No.3: Relief. i. Amount of Award:
71.Thus, the claimant is awarded as sum of Rs.86,68,700/- along
with 9% interest per annum from the date of filing of claim
petition. The rate of interest has been calculated in terms of the
succeeding paragraphs.
ii. Rate of Interest:
72.It was contended by Ld Counsel for the respondent that the
amount of interest ought to at @7.5%, in accordance with the
general prevalent practice in Courts. However, Ld Counsel for
the claimant sought 9% as the rate of interest.
73.In order to adjudicate these rival claims, recourse can be had to
Erudhaya Priya v State Transport Corporation 2020 SCC
OnLine SC 601 wherein the aspect of rate of interest was
categorically enunciated as thus:
(c) The third and the last aspect is the interest
rate claimed as 12%
“15.In respect of the aforesaid, the appellant
has watered down the interest rate during the
course of hearing to 9% in view of the judicial
pronouncements including in the Jagdish
case (supra). On this aspect, once again, there
was no serious dispute raised by the learned
counsel for the respondent once the claim was
confined to 9% in line with the interest rates
applied by this Court”.
DAR No. 466/2021 Page. 34 of 46
Smt. Mithlesh & Ors. Vs Mukesh Kumar & Anr.
74.Ergo, the amount of compensation/award amount will be
payable by the respondent with simple interest @ 9% p.a from
the date of filing of the claim petition/DAR till actual
realisation. The date of filing of DAR is 29.10.2021 therefore
the amount of Interest is calculated at @ 9 % from the date of
filing of petition i.e. Rs. 34,45,808/- for a period of 53 months
approx.. Thus, the total amount of award is Rs.1,21,14,508/-
75.It is also clarified that in case the interest of petitioner was
stopped or excluded during the present inquiry proceedings,
same is liable to be adjusted from the total interest calculated on
the Award amount. Similarly, amount awarded and released as
interim Award, if any, during pendency of the case, be deducted
from the total compensation.
V. DEPOSIT OF AWARD& RELEASE/APPORTIONMENT i. Deposit of Award:
76.In terms of the mandate of order dated 08.01.2021 in Rajesh
Tyagi (supra) the respondent /driver/owner shall deposit the
award amount or transfer the same by RTGS/NEFT/IMPS
directly to the bank account of the Motor Accident Claims
Tribunal in UCO Bank, Patiala House Courts within 30 days of
the award. The respondent(s) held liable to pay compensation by
the Claims Tribunal shall give notice of deposit of the
compensation amount to the claimant(s) and shall file a
compliance report with the Claims Tribunal with respect to the
DAR No. 466/2021 Page. 35 of 46
Smt. Mithlesh & Ors. Vs Mukesh Kumar & Anr.
deposit of the compensation amount within 15 days of the
deposit with the interest upto the date of notice of deposit to the
claimant(s) with a copy to their counsel.
RELEASE / APPORTIONMENT
77.The deceased Mr. Yogesh is survived by his wife, two daughters
and parents. Accordingly, the award amount be apportioned
amongst the dependent legal heirs as follows:-
Sl Name Relation % of Release of awarded amount
share
1. Smt. Wife 60 % Rs.15,00,000/- (Rupees Ten Lakhs Only) out
Pragati of the 60% share of wife be released in her
Kharel bank account immediately and remaining
awarded amount be invested and deposited
in 60 monthly fixed deposits receipts (FDR)
of equal amounts for a period of 60 months
as per Motor Accident Claims Annuity
Deposits Schemes.
2. Ms. Daughter 10%
Trisha
Adhikari
Complete award amount pertaining to their
share be deposited in their FDR till the date
of their maturity. The interest amount be
released quarterly in the bank account of the
minor child for financing his education and
personal needs.
3. Ms. Daughter 10 %
Tanisha
Adhikar
Complete award amount pertaining to their
share be deposited in their FDR till the dateDAR No. 466/2021 Page. 36 of 46
Smt. Mithlesh & Ors. Vs Mukesh Kumar & Anr.
of their maturity. The interest amount be
released quarterly in the bank account of the
minor child for financing his education and
personal needs.
4. Smt. Mother 10 % 100 % of his share be released in his bank
Poonam account immediately.
Adhikari
5. Sh. Him Father 10 % 100 % of her share be released in her bank
Lal account immediately.
Adhikari
78. The Nodal officer of the bank shall ensure disbursement of the
award within 3 weeks of receipt thereof by email or otherwise.
79. The disbursement to the claimant is, however, subject to the
addition of future interest till deposit proportionately and also
deduction of proportionate tax on the interest amount or amount
of interim award, if any, to/from his share.
ii. Disbursement of the award amount & protection thereof:
80. The amount of award shall be disbursed through the Motor
Accident Claims Tribunal Annuity Deposit (MACAD)Scheme
formulated vide order dated 01.05.2018 passed in Rajesh
Tyagi(supra). 21 banks, including UCO Bank, is implementing
the MACAD scheme.
81. Further, to protect the award amount, the entire amount of
compensation is not being released forthwith to the claimant,
DAR No. 466/2021 Page. 37 of 46
Smt. Mithlesh & Ors. Vs Mukesh Kumar & Anr.
and part of the compensation amount has been directed to be
kept in fixed deposits in a phased manner. Further, the following
conditions are hereby reiterated and being imposed upon the
concerned bank with respect to the fixed deposits:
(a) The bank shall not permit any joint names to be added in the
savings bank account or MACAD scheme account of
claimant i.e. the bank account of claimant shall be individual
account and not a joint account.
(b) The original fixed deposits shall be retained by the UCO
Bank, PHC, New Delhi in safe custody. However, the
statement containing FDR numbers, amounts, dates of
maturity and maturity amounts shall be furnished by the said
bank to the claimant and the above amount shall be released
in account of claimant by the Manager, UCO Bank, PHC,
ND through RTGS/NEFT/or any other electronic mode.
(c) The monthly interest be credited by Electronic Clearing
System (ECS) in the saving bank account of the claimant
near the place of his residence.
(d) The maturity amount of the FDR(s) on monthly basis net of
TDS be credited by Electronic Clearing System (ECS) in the
above account of the claimant.
(e) No loan, advance or withdrawal or pre-mature discharge be
allowed on the MACAD without permission of the Court.
(f) The concerned bank shall not issue any cheque book and/or
debit card to claimant(s). However, in case the debit cardDAR No. 466/2021 Page. 38 of 46
Smt. Mithlesh & Ors. Vs Mukesh Kumar & Anr.
and/or cheque book have already been issued, bank shall
cancel the same before the disbursement of the award
amount. The bank shall debit card(s) freeze the account of
the claimant(s) so that no debit card be issued in respect of
the account of the claimant(s) from any other branch of the
bank.
(g) The bank shall make an endorsement on the passbook of the
claimant(s) to the effect that no cheque book and/or debit
card have been issued and shall not be issued without the
permission of the Court and claimant(s) shall produce the
passbook with the necessary endorsement before the Court
on the next date fixed for compliance.
(h) It is clarified that the endorsement made by the bank along
with the duly signed and stamped by the bank official on the
passbook(s) of the claimant(s) is sufficient compliance of
clause above.
VI. LIABILITY
82.All the respondents are jointly and severely liable to pay
compensation.
83.In the present case, insurance company has taken a plea that the
deceased was not having any driving license. From the charge-
sheet, it is clear that deceased was a pillion rider. Insurance
company has failed to lead any positive evidence to show that
deceased was driving the insured vehicle. The issue no. 1 in this
DAR No. 466/2021 Page. 39 of 46
Smt. Mithlesh & Ors. Vs Mukesh Kumar & Anr.
regard is already decided against the insurance company.
Insurance company has also failed the establish the plea
regarding the consumption of alcohol and contributory
negligence. The fact that the vehicle was insured on the date of
accident is undisputed. Accordingly, insurance company is
liable to pay the compensation amount.
84.The factum of insurance is not disputed. No breach of policy
condition / statutory defence is proved. Accordingly, insurance
company is duty bound to pay the compensation and indemnify
the insured. Respondent no.3 being insurer of offending
vehicle, is directed to deposit the award amount with UCO
Bank, Patiala House Court Branch, along with interest @ 9%
per annum from the date of filing of claim petition by
RTGS/NEFT/IMPS in bank account being maintained in the
above said bank in name of the Motor Accident Claims Tribunal
within 30 days from today, failing which it is liable to pay
interest at the rate of 9% per annum for the period of delay. In
case even after lapse of 90 days from today, respondent no. 3
fails to deposit this compensation with interest, in that event, in
light of judgment of the Hon’ble High Court of Delhi passed in
the case of New India Assurance Company Limited Vs.
Kashmiri Lal 2007 ACJ 688, this compensation shall be
recovered by attaching the bank account of respondent no. 3
with a cost of Rs.5,000/-.
DAR No. 466/2021 Page. 40 of 46
Smt. Mithlesh & Ors. Vs Mukesh Kumar & Anr.
85. The respondent no. 3 shall inform the petitioner and his counsel
that the awarded amount has been deposited so as to facilitate
him to collect the same.
VII. SUMMARY OF COMPUTATION OF AWARD AMOUNT
IN CASES OF DEATH
86. Since this is a case pertaining to death, particulars of Form-XV
of the Scheme For Motor Accidents Claims Formulated by the
Delhi High Court in terms of order dated 08.01.2021 in Rajesh
Tyagi (supra) are as under:
1. Date of Accident 02.02.2021
2. Name of the deceased Mr. Yogesh
3. Age of the deceased 36 years
4. Occupation of the deceased Government
Employee,
5. Income of the deceased Rs.38,844/-
6. Name, Age and relationship of legal representatives of
the deceased:
S.NO NAME AGE RELATION
(i) Smt. Pragati Kharel 39 years Wife
(ii) Ms. Trisha Adhikari 10 years Daughter
(minor)
(iii) Ms. Tanisha Adhikari 6 years Daughter
(Minor)
DAR No. 466/2021 Page. 41 of 46
Smt. Mithlesh & Ors. Vs Mukesh Kumar & Anr.
(iv) Smt. Poonam 57 years Mother
Adhikar
(v) Sh. Him Lal Ahikari 61 years Father
COMPUTATION OF COMPENSATION
S.No. Heads Awarded by the
Claims Tribunal
7. Income of the deceased (A) Rs.38,844/-
8. Add: Future Prospects (B) Rs.19,422/-
9. Less: Personal expenses of the Rs.14,566/-
deceased (C)
10. Monthly loss of dependency Rs.43,700/-
[(A+B)- C = D]
11. Annual Loss of dependency (D x Rs. 5,24,400/-
12)
12. Multiplier (E) 16
13. Total loss of dependency (D x 12 Rs.83,90,400/-
x E = F)
14. Medical Expenses (G) -NIL-
15. Compensation for loss of Rs.2,42,000/-
consortium (H) Rs.48,400 X 5)
16. Compensation for loss of love & NA- in terms of New
DAR No. 466/2021 Page. 42 of 46
Smt. Mithlesh & Ors. Vs Mukesh Kumar & Anr.
affection (I) India Assurance Co v
Somwati (2020) 9
SCC 644
17. Compensation for loss of estate (J) Rs.18,150/-
18. Compensation towards funeral Rs.18,150/-
expenses (K)
19. TOTAL COMPENSATION (F + Rs.86,68,700/-
G + H + I + J + K = L)
20. Rate of Interest Awarded @9%
21. Interest amount up to the date of Rs.34,45,808/-
award (M) (53 months)
22. Total amount including interest (L Rs. 1,21,14,508/-
+ M)
23. Award amount released As per para no. 78
24. Award kept in FDRs As per para no. 78
25. Mode of disbursement of the Through Bank
award to the claimant(s)
26. Next date for compliance of the 18.05.2026
award
VIII. COMPLIANCE QUA PROVISIONS OF THE SCHEME
87. The particulars of Form XVII of the Scheme For Motor
Accidents Claims Formulated by the Delhi High Court, in terms
DAR No. 466/2021 Page. 43 of 46
Smt. Mithlesh & Ors. Vs Mukesh Kumar & Anr.
of order dated 08.01.2021 in Rajesh Tyagi (supra) are as
hereunder:
1. Date of the accident 02.02.2021
2. Date of filing of Form I- First N.A.
Accident Report (FAR)
3. Date of delivery of Form-II to the Same as above.
victim(s)
4. Date of receipt of Form-III from the Same as above.
Driver
5. Date of receipt of Form-IV from the Same as above
owner
6. Date of filing of the Form-V- Same as above
Interim Accident Report (IAR)
7. Date of receipt of Form-VIA and Same as above
Form VIB from the Victim (s)
8. Date of filing of Form-VII-Detailed 29.10.2021
Accident Report (DAR)
9. Whether there was any delay or Yes.
deficiency on the part of the
Investigating Officer? If so, whether
any action/direction warranted?
10. Date of appointment of the Not given
Designated Officer by the Insurance
Company.
11. Whether the Designated Officer of No
the Insurance Company submitted
his report within 30 days of the
DAR?
12. Whether there was any delay or No
deficiencies on the part of the
DAR No. 466/2021 Page. 44 of 46
Smt. Mithlesh & Ors. Vs Mukesh Kumar & Anr.
Designated Officer of the Insurance
Company? If so, whether any
action/direction warranted?
13. Date of response of the N.A.
petitioner(s) of the offer of the
Insurance Company.
14. Date of the Award 17.04.2026.
15. Whether the petitioner(s) were Yes
directed to open savings bank
account(s) near their place of
residence?
16. Date of order by which petitioner(s) 29.10.2021
were directed to open savings bank
account(s) near his place of
residence and produce PAN Card
and Adhaar Card and the direction to
the bank not issue any cheque
book/debit card to the petitioner (s)
and make an endorsement to this
effect on the passbook(s).
17. Date on which the petitioner(s) Not furnished. Directions issued.
produced the passbook of their
savings bank account near the place
of their residence along with the
endorsement, PAN Card and Adhaar
Card?
18. Permanent Residential Address of As mentioned above
the petitioner(s)
19. Whether the petitioner(s) savings
bank account(s) is near his place of
residence?
20. Whether the petitioner(s) were Yes.
examined at the time of passing of
the award to ascertain his/their
DAR No. 466/2021 Page. 45 of 46
Smt. Mithlesh & Ors. Vs Mukesh Kumar & Anr.
financial condition?
88. Further, in terms of the directions given vide order dated
08.01.2021 in Rajesh Tyagi (supra), the Ahlmad shall send a
certified copy of this award to the concerned Criminal Court and
to the Delhi State Legal Services Authority through e-mail.
Copy of the award be also sent to the bank concerned. The Nazir
is directed to maintain the record in Form XVIII as per the
directions given in the above case.
89. File be consigned to record room after completion of necessary
formalities. Separate file be prepared for compliance report and
be put up on 18.05.2026.
Digitally signed
by Abhilash
Malhotra
Abhilash Date:
Malhotra 2026.04.17
15:31:45
Announced in the open court +0530on 17.04.2026
(Abhilash Malhotra)
Judge/PO, MACT-02,
New Delhi/17.04.2026
DLND010067692021DAR No. 466/2021 Page. 46 of 46
Smt. Mithlesh & Ors. Vs Mukesh Kumar & Anr.
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