Delhi District Court
Smt. Kamlesh Aggarwal W/O Sh. Arjun ... vs Sh. Vijay S/O Sh. Ranjit Singh Rajpur on 22 December, 2015
1
IN THE COURT OF MS. BARKHA GUPTA : JUDGE : MOTOR
ACCIDENT CLAIMS TRIBUNAL : NORTHWEST DISTRICT
ROHINI COURTS: DELHI
MACT No. : 693/09
UNIQUE ID No. : 02404C0343022009
1. Smt. Kamlesh Aggarwal W/o Sh. Arjun Aggarwal,
(Mother of deceased Ms. Neetu Aggarwal) ......(Petitioner No.1)
2. Sh. Arjun Kumar Aggarwal S/o Late Sh. Roshan Lal Aggarwal
(Father of deceased Ms. Neetu Aggarwal) ....(Petitioner No.2)
Both R/o B4, Panchwati Colony, Indra Nagar, Azadpur, Delhi.
Versus
1. Sh. Vijay S/o Sh. Ranjit Singh Rajpur,
R/o H.No. 253, Malik Colony, Near P.G.I.,
Chandigarh. .....(Driver/Respondent No. 1)
2. Sh. Sumit Sharma S/o Sh. Mukesh Sharma, R/o H.No. 3258/2, Sector41D, Chandigarh. .....(Owner/Respondent no. 2)
3. The New India Assurance Company Ltd., SCO, 104106, Sector34A, Chandigarh. ....(Insurer/Respondent No.3) MACT No.693/09 Kamlesh Aggarwal Vs. Vijay 1 of 31 2 Other details: DATE OF INSTITUTION : 23.11.2009 DATE OF RESERVING ORDER : 09.12.2015 DATE OF PRONOUNCEMENT :22.12.2015 AWARD/JUDGMENT
1. The petition under sections 166 & 140 of the Motor Vehicles Act, 1988 has been filed by the petitioners namely Smt. Kamlesh Aggarwal (petitioner No.1) & Sh. Arjun Kumar Aggarwal (petitioner No.2), who are stated to be the only legal heirs of the deceased namely Late Ms. Neetu Aggarwal, being her parents whereby they have claimed compensation to the tune of Rs. 20 lacs alongwith interest at the rate of 18% per annum from Sh. Vijay/R1, Sh. Sumit Sharma/R2, who were the driver and owner of the offending vehicle respectively at the relevant time and from The New India Assurance Company Ltd./R3, who was the insurer of the offending vehicle from the date of filing of petition till realisation of compensation amount.
2. Brief facts of the case as revealed from the petition are that on 29.01.2009, both the petitioners alongwith their daughter MACT No.693/09 Kamlesh Aggarwal Vs. Vijay 2 of 31 3 Ms. Neetu Aggarwal (hereinafter referred to as the "deceased") and their son were going to Panchkula, Haryana in their car bearing registration No.DL4CAG3978, which at the relevant time was driven by their driver namely Sh. Rampreet. Further, when at about 3:304:00 pm, when they reached at GTK Road near Kumaspur Mor, Omax City, PS Murthal, Sonipat, Haryana, suddenly an Innova car bearing registration No. CH022408 (hereinafter referred to as the "offending vehicle") which at the relevant time was driven by Sh. Vijay/R1 in a rash and negligent manner came from the opposite side at high speed which hit the car of petitioners wherein the deceased was also traveling due to which the accident occurred wherein both the petitioners, their daughter i.e. the deceased and their driver Sh. Rampreet sustained injuries. They were initially admitted in General Civil Hospital, Sonipat by the officials of traffic mobile van which arrived at the spot soon after the accident, however, on the way to hospital, the driver of their car succumbed to his injuries and expired. Thereafter, the petitioners and the deceased also took treatment from Maharaja Agrasen Hospital, Delhi, however the MACT No.693/09 Kamlesh Aggarwal Vs. Vijay 3 of 31 4 deceased succumbed to her injuries during the course of her treatment on 31.01.2009 and expired.
The petitioners have further submitted that the deceased was a young girl of 20 years of age, who was a meritorious student and was also awarded certificates of her excellent performance. They have further submitted that at the relevant time, the deceased was studying in 2nd year in B.A (Honors) Economics from Hansraj College, Delhi and she also used to give tuitions from which she used to earn Rs. 12,000/ per month. It is further submitted that with respect to the said accident, FIR No. 31/2009 U/s 279/337/338/304 IPC was registered at PS Murthal, District Sonipat, Haryana against R1 wherein he was prosecuted.
The petitioners have further submitted that due to death of their daughter, they have suffered from great mental pain, agony and torture besides financial loss as they had spent considerable amount on medical treatment of the deceased.
The petitioners/LR's of deceased have prayed that compensation in sum of Rs. 20 lacs alongwith interest at the rate MACT No.693/09 Kamlesh Aggarwal Vs. Vijay 4 of 31 5 of 18% per annum be awarded in their favour and all the respondents are liable to pay them the said compensation amount jointly as well as severally as Sh. Vijay/R1 and Sh. Sumit Sharma/R2 were the driver and owner of the offending vehicle respectively at the relevant time and the New India Assurance Company Ltd./R3, was the insurer of the offending vehicle from the date of filing of claim petition till realisation of the said amount.
3. As per record, R1 & R2, who were the driver and owner of the offending vehicle have filed their written statement, wherein they have interalia submitted that they are not liable to pay any compensation amount as prayed by the petitioners because R1 was neither at fault nor he was rash and/ or negligent in driving the offending vehicle.
They have further submitted that the said accident occurred due to sole negligence of driver of the car of petitioners wherein the petitioners alongwith the deceased were traveling. It is also submitted that the offending vehicle was duly insured with R3 and so, R1 & R2 are not liable to pay any compensation amount MACT No.693/09 Kamlesh Aggarwal Vs. Vijay 5 of 31 6 to the petitioners.
4. The New India Assurance Company Ltd./R3 has also filed its written statement wherein it has interalia submitted that the driver of car in which the petitioners alongwith their family members were traveling was himself negligent and R1 was driving the offending vehicle properly and so, it is not liable to pay any compensation amount as claimed. It has also admitted that the offending vehicle was duly insured with it vide policy No.350200/31/08/01/00005149, which was valid w.e.f 18.10.2008 to 17.10.2009 in the name of Sh. Sumit Sharma/R2.
5. As per record, after completion of pleadings of parties, following issues were framed by my Ld. Predecessor vide order dt. 28.05.2011:
1. Whether on 29.01.09 at about 3:304:00 pm at GTK Road near Kamaspur Mor, Omax City, PS Murthal, Sonipat, Haryana vehicle No. CH022408 which was being driven rashly and negligently hit the car in which deceased was traveling and caused her death?
2. Whether petitioners are entitled to compensation, if so, to MACT No.693/09 Kamlesh Aggarwal Vs. Vijay 6 of 31 7 what amount and from whom?
3. Relief.
6. The petitioners in support of their case have examined seven witnesses in all namely Sh. Arjun Kumar Aggarwal (father of deceased) as PW1, Smt. Kamlesh Aggarwal (mother of deceased) as PW2, Dr. Nirankar Singh, (CMO, SAG BSA Hospital, Delhi) as PW3, Sh. Prithvi Nath, (Administrator, Adarsh Nagar Sewa Sabha Parmarth) as PW4, Sh. Anshul Bansal, (Director, Theon Pharmaceuticals Limited) as PW5, Dr. Jitender Singh, (Specialist Orthopedic, BSA hospital) as PW6 and Dr. Arun Yadav, (HOD Ortho, Hindu Rao Hospital) as PW7.
As per record, the New India Assurance Company Ltd./R3 has also examined two witnesses namely Sh. Basant Kumar Rohtagi, (Dy. Manager for New India Assurance Company Ltd New Delhi) as R3W1 and Sh. Anand Kumar Verma, (Assistant Accountant, RTO Office, Agra, U.P) as R3W2. As per record, none of the other respondents have adduced any evidence, who were proceeded exparte by my Ld. Predecessor. MACT No.693/09 Kamlesh Aggarwal Vs. Vijay 7 of 31 8
7. I have heard final arguments as advanced by Advocate Sh. Yogesh Narula, Ld. Counsel for the petitioners/LRs of deceased & Advocate Sh. R.P. Mathur, Ld. Counsel for The New India Assurance Company Ltd./R3. None on behalf of R1 & R2 has advanced final arguments. Now, I proceed to discuss the issues in the succeeding paragraphs.
8. Issue no. 1 "Whether on 29.01.09 at about 3:304:00 pm at GTK Road near Kamaspur Mor, Omax City, PS Murthal, Sonipat, Haryana vehicle No. CH022408 which was being driven rashly and negligently hit the car in which deceased was traveling and caused her death?"
9. The petitioners in support of their case have examined Sh. Arjun Kumar Aggarwal (who is father of deceased) as PW1 and her mother namely Smt. Kamlesh Aggarwal as PW2, who are the most material witnesses being eye witnesses as they were traveling in the same car in which the deceased was also traveling alongwith them.
They have adduced their evidence by way of their respective MACT No.693/09 Kamlesh Aggarwal Vs. Vijay 8 of 31 9 affidavits which are proved as Ex.PW1/A & Ex.PW2/A and they have also relied upon various documents as Ex.PW1/1 to Ex.PW1/21 as well as documents Ex.PW2/1 to Ex.PW2/8.
10. Sh. Arjun Kumar Aggarwal (who is petitioner No.2) has examined himself as PW1 who has testified by way of his affidavit Ex.PW1/A, wherein he has deposed that at the relevant date, time and place, he alongwith his wife namely Smt. Kamlesh Aggarwal (PW1), their son and the deceased (who was their daughter) was going to Punchkula in their car bearing registration No. DL4CAG3978, which at the relevant time was driven by their driver namely Sh. Rampreet and when they reached at G.T.Road, near Kamaspur Mor, Omax City, PS Murthal, Sonipat, Haryana, suddenly the offending vehicle i.e Innova Car bearing registration No.CH022408, which at the relevant time was driven by R1 in a rash and negligent manner came from the opposite side at high speed and it hit against their car due to which the accident took place wherein he alongwith his other family members including the deceased and their driver sustained injuries. They were initially admitted in MACT No.693/09 Kamlesh Aggarwal Vs. Vijay 9 of 31 10 General Civil Hopsital, Sonipat by the officials of traffic mobile van, which arrived at the spot, however, the driver of their car succumbed to his injuries on the way to hospital and expired. He has also testified that thereafter, they were also admitted in Maharaja Agrasen Hospital, Delhi, where their daughter Ms. Neetu Aggarwal expired on 31.01.2009 during the course of her treatment, due to injuries sustained by her in the said accident.
11. Smt. Kamlesh Aggarwal, (who is petitioner No.1 and is the wife of petitioner No.2) is examined as PW2, who is also an eye witness of the occurrence and was traveling in the same car along with PW1 and her deceased daughter. She had adduced her evidence by way of affidavit Ex.PW2/A and has deposed on the lines of PW1 and hence, her testimony is not repeated for the sake of brevity.
12. It would be pertinent to discuss here that no cross examination to any of these witnesses was offered by or on behalf of R1 & R2, who were the driver and owner of the offending vehicle on any aspect at all and accordingly, R1 & R2 MACT No.693/09 Kamlesh Aggarwal Vs. Vijay 10 of 31 11 have admitted in totality the entire versions of PW1 & PW2 as correct on all material aspects. It is well settled law that if a witness is not crossexamined on any aspect, then it amounts to truthfulness of the same. In the case in hand, the testimonies of PW1 & PW2 are nowhere rebutted or controverted at all by or on behalf of R1 & R2. Further, after going through the entire versions of petitioners, it seems that they have testified in a straight forward, cogent and convincing manner and there is no reason to disbelieve their versions. In the given facts and circumstances, R1 & R2 have clearly admitted that at the relevant date, time and place, R1 was driving the offending vehicle at a high speed and in a rash and negligent manner and while driving so, he struck the offending vehicle against the car of petitioners wherein the deceased was also traveling due to which the said accident took place and due to various injuries sustained in the said accident, the deceased had expired during the course of her treatment.
13. As per record, PW1 & PW2 were crossexamined on behalf of the New India Assurance Company Ltd./R3 during which MACT No.693/09 Kamlesh Aggarwal Vs. Vijay 11 of 31 12 they have stated that they alongwith their family including the deceased had left Delhi for going to Punchkula at about 2:30 pm. They have also stated that there was a divider between the road from Delhi to Punchkula and have denied if at all, their car was on wrong side of the road. It is pertinent to mention here that rest of their crossexaminations refer to the medical treatment and regarding income and medical expenses etc. which is not relevant to discuss the issue in hand.
14. After going through the entire testimonies of PW1 & PW2, who are the most material witnesses being witnesses of the occurrence/accident, there is nothing on record to disbelieve their versions. In fact, both of them have testified before the court in a cogent and convincing manner and there is no reason to doubt either their presence at the spot or to doubt their witnessing the said occurrence. In fact, it is rather shown and proved on record that PW1 & PW2 were traveling alongwith the deceased in there car bearing registration No. DL4CAG3978 which was driven by their driver properly and R1, while driving the offending vehicle in a rash and negligent manner and at high MACT No.693/09 Kamlesh Aggarwal Vs. Vijay 12 of 31 13 speed caused the said accident as testified by PW1 & PW2 wherein apart from PW1 & PW2, the deceased also sustained injuries due to which she expired during the course of her medical treatment. The testimonies of PW1 & PW2 do not seem to suffer from any inherent infirmity or artificiality or exaggeration and there is nothing on record to raise a doubt regarding the authenticity of their depositions in as far as they have come forward with true picture of the occurrence/accident.
Further, the certified copies of the criminal case are also placed on record including the copies of FIR No.31/2009, U/s 279/337/338/304 IPC at PS Murthal, District Sonipat, Haryana and charge sheet u/s 173 Cr.P.C. which are not challenged or disputed by any of the respondents which clearly show that R1 was prosecuted in the said case regarding causing the said accident wherein the deceased Ms. Neetu Aggarwal had expired and the offending vehicle was also seized.
Admittedly R1 has not lodged any complaint to any higher authority regarding his alleged false implication in the said criminal case and has not alleged or submitted that he had any MACT No.693/09 Kamlesh Aggarwal Vs. Vijay 13 of 31 14 enmity with the deceased or his family members or with the investigating officer and so, the possibility of his false implication in criminal case does not exist.
15. It is not out of place to discuss that as per record, the attested copy of the postmortem examination report of the deceased is also filed on record, which is nowhere challenged by any of the respondents and the same is not in dispute. It is not out of place to discuss here that though the concerned doctor, who had conducted the postmortem examination of the deceased is not examined, however, it is observed in a catena of cases by superior courts and is also well settled law that if it is otherwise proved as record that the accident had resulted in death of the deceased, then even non examination of the doctor who had conducted the postmortem examination does not adversely affect the case.
18. It also needs to be noted in this regard that in the case of Reliance General Insurance Co. Ltd. v. Sushila Rathi & Ors. MAC. APP. 927/2012, as decided on 04.12.2012, the Hon'ble High Court has observed that "although postmortem MACT No.693/09 Kamlesh Aggarwal Vs. Vijay 14 of 31 15 examination was not conducted as the deceased died couple of months after the accident, yet from the medical record coupled with PW1's unchallenged testimony, it is established that the deceased died on account of injuries suffered in the accident".
In the said case, the Hon'ble High Court had considered the testimony of widow of deceased that the deceased succumbed due to the injuries suffered in the accident which was not challenged in the crossexamination.
Further, in the case of New India Assurance Company Ltd., Chennai v. R. Santhi and Others, 2013(1) T.A.C. 122 (Mad.), decided on 04.09.2012, the Hon'ble High Court has clearly laid down that merely because of non conducting of postmortem, the court cannot conclude that death was not due to road accident injury and it can be decided based on other relevant material brought before the court.
Further, in the case of Union of India & Another v. Bhola Rai, 2012(3) T.A.C. 546 (Gau.), decided on 02.03.2011, the Hon'ble High Court of Gauhati opined that there is nexus between the accident and the death of the deceased as the MACT No.693/09 Kamlesh Aggarwal Vs. Vijay 15 of 31 16 deceased was knocked down by the driver of the mini bus and he suffered serious injuries on his thigh bone as well as on hip bone and remained under treatment of several hospitals and died after about three years. It also held that the cause of death as linked to the injury sustained cannot be ruled out as the deceased was under prolonged medical treatment and had never resumed duty due to his said inability and laid down that there was causal connection, even though not immediate, between the accident and eventual death of the deceased.
19. It is discussed even at the cost of repetition that in the case in hand, the postmortem examination of the deceased was conducted which is not disputed and the attested copy of the postmortem report of the deceased is also placed on record which is not under challenge. It is also shown on record that the deceased had expired due to various injuries as sustained by her in the said accident as caused by R1 by driving the offending vehicle in a rash and negligent manner as already discussed at length earlier and accordingly, in the given facts and circumstances, in considered opinion of the court, non MACT No.693/09 Kamlesh Aggarwal Vs. Vijay 16 of 31 17 examination of the doctor who had conducted postmortem examination of the deceased is not fatal to the case of petitioners/LRs of deceased.
20. Accordingly, in the given facts & circumstances, on the basis of material produced and proved before the court and in view of aforesaid discussion, in considered opinion of the court, the said accident was caused by R1 while driving the offending vehicle in a rash and negligent manner at the relevant date, time and place wherein the deceased sustained injuries and lost her life and hence, Issue No.1 is decided in favour of the petitioners/LR's of deceased and against the respondents.
21. Issue No.2 Qua Quantum of Compensation "Whether petitioners are entitled to compensation, if so, to what amount and from whom?"
22. As per record, the petitioners have also examined Sh. Anshul Bansal, (Director, Theon Pharmaceuticals Limited) as PW5 to show that the said concern had made an offer to the deceased for employment with it on salary of Rs. 3,50,000/ p.a. PW5 had brought the record pertaining to appointment of the MACT No.693/09 Kamlesh Aggarwal Vs. Vijay 17 of 31 18 deceased Ms. Neetu Aggarwal with the said concern and proved the appointment letter dated 22.12.08 issued to the deceased as Ex. PW5/1. He has further testified that the deceased had also appeared for interview conducted by the said concern and after the interview, the deceased was selected in the said firm for the post of Assistant Manager, Finance on salary of Rs. 3,50,000/ p.a. Nothing has come during his cross examination to shatter his version or to doubt of the deceased was not appointed for said post for said emoluments. As per document Ex. PW5/1 which is the appointment letter of the deceased sent by Theon Pharmaceuticals Ltd, it is shown that the said concern had offered the deceased Rs. 3,50,000/ p.a. which is not disputed by by any of the respondents. From the same, it is clearly shown and proved on record that, though, the deceased was still studying, yet she was offered a job for salary of Rs. 3,50,000/ p.a and hence, at the relevant time, in the given facts and circumstance, the only reasonable conclusion that can be drawn is that she could earn an amount of Rs. 3,50,000/ p.a. MACT No.693/09 Kamlesh Aggarwal Vs. Vijay 18 of 31 19 and hence, her income is taken as Rs. 3,50,000/ p.a.
23. The Hon'ble High Court in the case of HDFC Ergo General Insurance Ltd. Vs. Smt. Lalta Devi and others pronounced by Hon'ble High Court on 12.01.2015 in MAC APP 189/2014 has discussed the divergent judgments of Hon'ble Supreme Court in cases of Sarla Verma & Ors Vs. DTC(2009)6SCC121, Reshma Kumari & Ors Vs. Madan Mohan & Another(2013)9SCC65, Rajesh Vs. Rajbir Singh & Ors(2013)9SCC54, that since the deceased was not a salaried person, hence, his LRs are not entitled to future prospects. In para16 of the judgment, Hon'ble High Court has held: "16 Further the divergence of opinion in Reshma Kumar & Ors Vs Madan Mohan & Another(2013)9SCC65 and Rajesh & Ors Vs. Rajbeer Singh & Ors(2013)9SCC54 was noticed by the Supreme Court in another latest judgment in National Insurance Company Ltd. Vs. 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 has under MACT No.693/09 Kamlesh Aggarwal Vs. Vijay 19 of 31 20 "be it noted though the decision in Reshma(Supra) was rendered at the earlier point of time, as is clear, the same has not been noticed in Rajesh(Supra) and that is why the divergent opinion has been expressed. We are of the considered opinion that as regard the manner of addition of income of future prospects, there should be an authoritative pronouncement. Therefore, we think it appropriate to refer the matter to larger bench."
In para 17 & 18 Hon'ble High Court further held: "17 now, the question is which of the judgment ought to be followed awaiting answer to the reference to the Supreme Court in Pushpa & Ors (Supra)".
"18 In Central Board of Dawoodi Bohra Community & Another Vs. State of Maharashtra & Another (2005)2SCC673 in Para 12, the Supreme Court observed as under: "12 having carefully considered the submissions made by Ld Senior Counsel for parties and having examined the law laid down by the constitution benches in the aforesaid decisions, we would like sum up the legal position in following terms" MACT No.693/09 Kamlesh Aggarwal Vs. Vijay 20 of 31 21
1. The law laid down in this court in a decision delivered by bench of larger strength is binding on any subsequent bench of lesser or coequal strength.
2.[Ed.: Para 12(2) corrected vide Official Corrigendum No. F.3/Ed.B.J./21/2005 dated 332005.] A Bench of lesser quorum cannot 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 decision has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion doubting the correctness 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 1712005.] MACT No.693/09 Kamlesh Aggarwal Vs. Vijay 21 of 31 22 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 herein above, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself 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 dispensing with the need of a specific reference or the order of the Chief Justice constituting the Bench and such listing. Such was the situation in Raghubir Singh [(1989) 2 SCC 754] and Hansoli Devi[(2002) 7 SCC 273]". In Para 20, Hon'ble High Court further observed 20 "in UOI Vs. S.K. Kapoor, (2011)4SCC589 while holding that the decision of the coordinate bench is binding on the MACT No.693/09 Kamlesh Aggarwal Vs. Vijay 22 of 31 23 subsequent bench of equal strength held that the bench of coordinate strength can only make reference to the larger bench."
It is was further held Para 21 & 22:
21 "This court in New India Assurance Co. Ltd Vs. Harpal & Ors in 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". "22 Consequently it cannot be said that every person including the student would be entitled to addition of 50% towards future prospects".
24. In view of the above observations made by the superior courts in the aforesaid judgments, in the case in hand, the petitioners, who are the LR's of the deceased are not entitled for future prospects.
25. Further, as per record, the copy of the Pan Card of the deceased is filed wherein her date of birth is shown as 04.01.1989 and the date of accident is 29.01.2009 which are not MACT No.693/09 Kamlesh Aggarwal Vs. Vijay 23 of 31 24 in dispute and so, she was 20 years as on the date of the said accident. Therefore, the multiplier of '18' is applicable in the case in hand as per observations made in the case of Sarla Verma & Ors. v. DTC & Anr. Civill Appeal No. 3483 of 2008
26. Deduction of amount towards personal and living expenses: As per record, the deceased was survived by the petitioners i.e parents who are his LRs, hence, as such 50% of her income is to be deducted towards her personal and living expenses as per observations made in the case of Sarla Verma & Ors. v. DTC & Anr. Civill Appeal No. 3483 of 2008 (arising out of SLP (C) No.8648 of 2007) dated April 15, 2009.
27. Calculation Salary of the deceased: Rs.3,50,000/p.a. Deduction of 50% as per observations in case of Sarla Verma Rs. 3,50,000/1,75,000/= 1,75,000/ p.a Thus, the loss of dependency comes to Rs.31,50,000/ MACT No.693/09 Kamlesh Aggarwal Vs. Vijay 24 of 31 25 (Rs. 1,75,000x18)
28. Now, regarding the amount of compensation payable towards funeral expenses, it needs to be discussed that it was observed in the case of Rajesh Vs. Rajbir Singh & Ors 2013 (6) SCALE that: "We may also take judicial notice of the fact that the Tribunals have been quite frugal with regard to award of compensation under the head 'Funeral Expenses". The 'Price Index', it is a fact has gone up in that regard also. The head 'Funeral Expenses' does not mean the fee paid in the crematorium or fee paid for the use of space in the cemetery. There are many other expenses in connection with funeral and, if the deceased is follower of any particular religion, there are several religious practices and conventions pursuant to death in a family. All those are quite expensive. Therefore, we are of the view that it will be just, fair and equitable, under the head of 'Funeral Expenses', in the absence of evidence to the contrary for higher expenses, to award at least an amount of Rs. 25,000/."
Hence, in view of the above, in the case in hand, an amount of Rs. 25,000/ is granted towards funeral expenses of the MACT No.693/09 Kamlesh Aggarwal Vs. Vijay 25 of 31 26 deceased. Further, the petitioners are also entitled for an amount of Rs. 1,00,000/ towards loss of love and affection as per observations made in the case of Rajesh (Supra)
29. Now so far as loss of Estate is concerned, it needs to be discussed that in the case of Asha Verman & Ors Vs. Maharaj Singh & Ors Civil Appeal Nos. 32113212 of 2015 decided on 27.03.15 the Hon'ble Apex Court has granted an amount of Rs. 1 lac towards loss of estate to the LR's of deceased and hence, in the case in hand, an amount of Rs. 1 lac is granted as loss of Estate to the petitioners. Further, as per record, the deceased had expired during the course of her treatment and there are medical bills which are proved as Ex. PW1/15 for Rs.40,940/ which are not in dispute and the same be granted to the petitioners.
30. In view of above, the over all compensation amount thus comes to Rs.34,15,940/ which is tabulated as below: Sl. No Compensation under various heads Amount awarded
1. Loss of dependency Rs. 31,50,000/ 2 Loss of love & affection Rs. 1,00,000/ MACT No.693/09 Kamlesh Aggarwal Vs. Vijay 26 of 31 27
3. Funeral expenses Rs. 25,000/
4. Loss of estate Rs. 1,00,000/
5. Medical Bills Rs. 40,940/
6. Total Rs. 34,15,940/
31. It needs to be discussed that ld. counsel for New India Assurance company/ R3 with whom the offending vehicle was insured had submitted that R3 is not liable to pay any compensation amount because the driver of offending vehicle/R1 was not having the valid driving licence to drive the offending vehicle. In this regard, R3 has also examined two witnesses namely Sh. Basant Kr. Rastogi (Dy Manager, New India Assurance Co) as R3W1 and Sh. Anand Kumar Verma, (Assistant Accountant, RTO Office, Agra, UP) as R3W2.
Sh. Basant Kumar Rastogi (R3W1) has testified that on the instructions of R3, its advocate had issued the notices under Order 12 Rule 8 CPC to R1 and R2 through post for producing the driving licence of R1 Which are proved on record as Ex R3W1/A and the postal receipts, vide which they were sent to R1 and R2 are proved as Ex. R3W1/B to Ex. R3W1/C. MACT No.693/09 Kamlesh Aggarwal Vs. Vijay 27 of 31 28 Further, Insurance Co./R3 has also examined Sh. Anand Kumar Verma, as R3W2 who has testified that driving licence no. 2108/AG/04 was issued to one Sh. Hori Lal and not to Vijay/R1. He has also deposed that the said driving licence was issued in the year 2004 and not in the year 2003. He has further stated that the driving licence which is Ex. R3W1/D was not issued by the said office.
It is pertinent to mention here that R1 and R2 have not cross examined Sh. Basant Kr. Rastogi(R3W1) and/or Sh. Anand Kumar (R3W2) on any aspect at all and they have not disputed the testimonies of these witnesses. It needs to be discussed that accordingly, R3 has been able to show on record that R1, who is driver of offending vehicle did not have valid driving licence to drive the offending vehicle and accordingly, in the given facts and circumstance, there is nothing on record to falsify the testimonies of these witnesses and it is rather shown on record in the given facts and circumstances that as such, the R1 did not possess a valid driving license to drive the offending vehicle at the relevant time.
MACT No.693/09 Kamlesh Aggarwal Vs. Vijay 28 of 31 29
32. It is not out of place to discuss here that in the case of Prem Kumari & Ors. Vs Prahlad Devi & Ors. II (2008) 477 (SC), the Hon'ble Apex Court has observed that even if the license of driver is fake, still the insurer would continue to remain liable to pay the compensation to the petitioner and the insurer is entitled to recover the said amount from the owner and the driver of offending vehicle as per rules.
33. In the present case, though, it is shown on record that Sh. Vijay/R1 was not having a valid driving licence to drive the offending vehicle as on the date of said accident at the relevant time, yet the New India insurance company/R3 is under statutory obligation to pay compensation amount to the petitioners/claimants and it can very well recover the said amount from driver Sh. Vijay/R1 and owner Sumit Mishra/R2 as per rules as per procedure established by law.
34. Accordingly, in the case in hand, The New India Assurance co. Ltd./R3 is directed to deposit with this Tribunal within 30 days from today the awarded amount of Rs.34,15,940/ alongwith interest at the rate of 9 % per annum from the date of MACT No.693/09 Kamlesh Aggarwal Vs. Vijay 29 of 31 30 filing of the petition till notice of deposition of awarded amount to be given by the New India Insurance co/R3 to the petitioners and their counsel and it recover the same from R1 and R2 as per procedure established by law.
35. I have heard LRs of deceased regarding their financial needs. In view of the submissions made and further, in view of observations made in the case of General Manager, Kerala State Road Transport Corporation Vs. Susamma Thomas & Others, 1994 (2) SC, 1631, following arrangements is hereby ordered: An amount of Rs.12,00,000/ be given to petitioner no.2 namely Sh. Arjun Aggarwal, who is the father of deceased, out of which an amount of Rs. 6,00,000/ be released to him in cash as per rules and remaining amount with interest be kept in FDR in his name for a period of 3 years in any nationalised bank as per rules.
Further, remaining amount be given to petitioner no.1 namely Smt. Kamlesh Aggarwal, who is the mother of deceased, out of which an amount of Rs. 10,00,000/ be released to her in cash as per rules and remaining amount with interest be kept in FDR in MACT No.693/09 Kamlesh Aggarwal Vs. Vijay 30 of 31 31 her name for a period of 3 years in any nationalised bank as per rules.
36. It is further directed that interest on the aforesaid fixed deposits shall be paid quarterly by automatic credit of interest in the Saving Accounts of the petitioners as per rules.
Further, the petitioners shall not have any facility of loan or advance on the FDRs, however, in case of emergent needs, they may approach this Tribunal for premature encashment of FDR's as per rules.
37. The Petition is accordingly disposed of. File be consigned to record room as per rules after compliance of necessary legal formalities as per rules.
(Barkha Gupta) Announced in the open Court Judge MACT/NW District today i.e.22.12. 2015 Rohini Courts, Delhi MACT No.693/09 Kamlesh Aggarwal Vs. Vijay 31 of 31