Delhi District Court
Mst. Shahnaz W/O Late Sh. Ahmed Hussain vs Sh. Babu Lal Jat S/O Sh. Prabhu Dayal Jat on 15 February, 2014
IN THE COURT OF MS. RAVINDER BEDI : PRESIDING OFFICER,
MOTOR ACCIDENTS CLAIMS TRIBUNAL : KARKARDOOMA
COURTS : EAST DISTRICT : DELHI.
Petition No. 43/12
Date of filing of the petition 11/01/12
Date of assignment to this court 11/01/12
Date on which judgment was reserved 04/02/14
Date of award 15/02/14
1. MST. SHAHNAZ W/O LATE SH. AHMED HUSSAIN
2. MERAJ S/O LATE SH. AHMED HUSSAIN
3. GULFAM S/O LATE SH. AHMED HUSSAIN
4. GURFAN S/O LATE SH. AHMED HUSSAIN
5. MST. MOTIPHUN NISHA W/O LATE MOHD. YUNUS
ALL R/O 903, BUDHA MARG,MANDAWALI
FAZAL PUR, DELHI.
(PETITIONER NO.2 TO 4 ARE MINORS BEING REPRESENTED
THROUGH THEIR MOTHER/PETITIONER NO.1
....PETITIONERS
VERSUS
1. SH. BABU LAL JAT S/O SH. PRABHU DAYAL JAT
R/O VILL. KHATKAD, P.S AJIT GARH,
DISTT. SIKAR, RAJASTHAN. ...DRIVER CUM OWNER
2. HDFC ERGO GEN. INSURANCE CO. LTD.
OFFICE AT GROUND FLOOR,
MACT NO. 43/12 : SHAHNAZ VS. BABU LAL Page : 1/14
CORPORATE TOWER, OPP. NEHRU PLACE,
METRO STATION, NEW DELHI. ...INSURER/RESPONDENTS
A W A R D
1. Mst. Shahnaz (wife of deceased), Master Mehraj, Gulfam and Gufran (all three sons of deceased) through their mother and Mst. Motiphun Nisha (mother of deceased), all R/o 903, Budha Marg, Mandawali Fazalpur, Delhi (hereinafter referred to as the petitioner nos. 1 to 5) have filed the present petition under the provisions of Motor Vehicles Act 1988 (hereinafter referred to as Act of 1988) against Babu Lal Jat S/o Sh. Prabhu Dayal Jat, R/o village Khatkad, P.S Ajit Gargh, Distt. Sikar, Rajasthan, driver cum owner (hereinafter referred to as respondent no.1), and HDFC Ergo General Insurance Company Ltd. Office at Ground floor, Corporate Tower, Opp. Nehru Place, Metro Station, New Delhi, Insurer (hereinafter referred to as respondent no.
2) for seeking compensation in lieu of the fatal accident of Ahmed Hussain, husband of petitioner no.1, father of petitioner no.2 to 4 and son of petitioner No.5.
2. Deceased Ahmad Hussain was about 41 years old, working with M/s Carnation Auto India Pvt. Ltd. Studio 205, IHDP, Plot7 Sec.127, Shahibabad, Gaziabad, (U.P.) and earning Rs.11,500/ per month.
3. The brief facts arising out of this case are that on 15/12/2011 at about MACT NO. 43/12 : SHAHNAZ VS. BABU LAL Page : 2/14 9:30 p.m Ahmed Hussain was going on his motor cycle No. DL7SK5775 to his house at Mandawali. While he reached at road no. 56, ISBT Anand Vihar, Delhi, a truck bearing no. RJ14GB7136, driven by respondent no.1 in a rash and negligent manner hit the motorcyclist and crushed him by running over him. Injured was taken to LBS hospital where MLC bearing No. 18830/11 was prepared. The doctors declared him as "brought dead". The postmotem was got conducted vide PM Report no.458/11.
4. A case u/s 279/304A IPC was registered vide FIR No. 390/11 at PS Madhu Vihar.
5. It is further alleged that due to untimely death of deceased all the petitioners and other relatives faced mental shock, great pain and agony. It is further averred that R1 is the driver cum owner and R2 is the insurer of the offending vehicle, therefore, they both are jointly and severally liable to make the payment of compensation to the petitioners and R2 is liable to indemnify R1. Petitioners have claimed Rs.50,000/ as interim compensation and Rs.45,00,000/ with interest towards all the heads. It is averred that the funeral expenses incurred were Rs.50,000/.
6. Notice of the petition was served upon both respondents. Pursuant to the service of notice, respondents appeared. It is pertinent to mention MACT NO. 43/12 : SHAHNAZ VS. BABU LAL Page : 3/14 that R1 did not file written statement.
7. R2 in its written statement controverted all the allegations in the petition and took many preliminary objections such as the R1 was not holding an effective driving licence at the time of alleged accident and insurance company therefore not liable to pay any compensation. Rest of the allegations in the petition are also denied as wrong and it is prayed that petitioners are not entitled for claim and thus petition be dismissed.
8. After hearing arguments and on the basis of the pleadings from both the parties, following issues were framed by my Ld. Predecessor vide order dated 05.11.2012 :
i) Whether petitioners prove that they are the legal heirs of deceased Ahmed Hussain?
ii) Whether petitioners prove that deceased Ahmed Hussain suffered fatal injuries in road side accident on 15.12.2011 involving vehicle no. RJ14GB7136 being driven in a rash and negligent manner by R1?
iii) To what amount of compensation, if any, the petitioners are entitled to and from whom?
iv) Relief.
9. After framing of issues case was posted for petitioner's evidence. Mst. Shahnaz, wife of deceased appeared as PW1 and filed her affidavit Ex.PW1/A stating therein all the facts as averred by her in her petition. MACT NO. 43/12 : SHAHNAZ VS. BABU LAL Page : 4/14 She relied upon the documents Ex.PW1/1 to PW1/9 and document Mark X which is the appointment letter issued in favour of deceased by his employer. During her cross examination by counsel for insurance company, PW1 stated that she was not the eye witness to the accident. She stated that her husband used to earn Rs.11,500/ p.m. She stated that she had three sons aged about 18 years, 15 years and 3 years respectively. She stated that her father in law has expired 56 years back.
10.Petitioners also examined Mr. Gaurav Shukla, Sr. Manager from HR Carnation Auto India Pvt. Ltd. as PW2. He deposed that deceased was employed with his company as permanent employee. PW2 has proved letter of appointment Ex.PW2/A and the salary certificate as Ex.PW2/B (from date of appointment 11.10.10 till December 2011 Colly. In 14 sheets). PW3 Mohd. Taslim has filed his examination in chief by way of affidavit Ex.PW3/A. He stated that he was the eye witness of the occurrence. On 15.12.11, he alongwith Pradeep Sharma was going towards Karkardooma Village from Pushpanjali Hospital. At about 9.30 PM, when they reached Road no.56, Opp. Anand Vihar ISBT, they saw the accident wherein the offending truck driven by its driver in rash and negligent manner had hit the cyclist from behind with great impact.
MACT NO. 43/12 : SHAHNAZ VS. BABU LAL Page : 5/14
11.It is pertinent to mention that respondents despite opportunity did not opt to lead any evidence. Hence, the respondents' evidence was closed by order.
12.I have heard Ld. Counsels for parties, perused the entire material carefully in the light of relevant statutory provisions of law and my observations on the issues are as follows : ISSUE NO.1 Whether petitioners prove that they are the legal heirs of deceased Ahmed Hussain?
13.In order to decide this issue, the testimony of PW1 Mst. Shahnaz, wife of deceased is relevant. She in her affidavit deposed that her husband left behind herself (wife of deceased), three sons namely Mehraj, Gulfan and Gulfran (children of deceased) and her mother in law Mst. Motiphun Nisa (mother of deceased) as his legal heirs. She further stated that father of deceased had predeceased to him. In support of her testimony, she has produced election I card of deceased Ex.PW1/2, her own election I card Ex.PW1/3, election I card of her mother in law Ex.PW1/4, School I cards of her three children Ex.PW1/5, PW1/6 and PW1/7 and ration card Ex.PW1/8. She stated that she is wife of Late Ahmed Hussain. Her testimony is supported and corroborated by the DAR filed by IO wherein he mentioned the MACT NO. 43/12 : SHAHNAZ VS. BABU LAL Page : 6/14 names of all petitioners i.e. Petitioner no.1 to 5 as legal heirs / dependents of deceased. She has proved the election I card of deceased as Ex.PW1/2 as per which, age of deceased as on 1.1.2005 was 35 years. On the other hand, no evidence contrary to the testimony of PW1, PW2 and PW3 has been brought on record by respondents. In such circumstances, there is no reason to disbelieve the testimony of PW1 and the documents brought on record. Therefore, I hold that petitioners no.1 to 5 are the only LRs and dependents of the deceased. This issue is decided accordingly. ISSUE NO. 2 :
Whether petitioners prove that deceased Ahmed Hussain suffered fatal injuries in road side accident on 15.12.2011 involving vehicle no. RJ14GB7136 being driven in a rash and negligent manner by R1?
14.In order to prove this issue, the testimony of PW1, wife of deceased is worth mentioning and relevant. She by way of affidavit deposed in petition that on 15.12.2011 at about 9.30 PM, her husband was going towards Seemapuri boarder from Gazipur on motorcycle no. DL15K5775. As he reached Road no.56, Opp. Anand Vihar ISBT, a truck bearing no.RJ14GB7136 which was being driven by R1 in rash and negligent manner hit the motorcyclist, as a result of which, he fell down on the road and truck ran over his body. He sustained crushed MACT NO. 43/12 : SHAHNAZ VS. BABU LAL Page : 7/14 injuries and was immediately taken to LBS hospital in PCR Van where doctor declared him as 'brought dead'. Post mortem was got conducted vide PM Report no.458/11. A case U/s 279/304A IPC was registered in PS Madhu Vihar.
15.The aforesaid facts are further supported and corroborated by IO of the case who had conducted the investigation in the matter and seized the documents belonging to offending vehicle, got conducted the mechanical inspection of vehicle, took the injured to LBS Hospital where doctor declared him as "brought dead".
16.On the other hand, no contrary evidence in rebuttal to the testimony of PW1 has come up on record and in such circumstances, I am of the view that there is no reason to distrust or disbelieve the evidence of petitioners. Accordingly, I hold that petitioners have succeeded in proving that on 15.12.2011, the accident had taken place due to the rash and negligent driving of vehicle no. RJ15GB7136, which was being driven by R1. The issue stands decided in favour of petitioners and against the respondents.
ISSUE NO. 3 :
To what amount of compensation, if any, the petitioners are entitled to and from whom?
17.As regard the quantum of compensation, the petitioners have to be MACT NO. 43/12 : SHAHNAZ VS. BABU LAL Page : 8/14 compensated for the actual expenses incurred, if any before death supported by bills, loss of dependency and other general damages in addition to the above mentioned compensation which are as follows :
i) Funeral expenses
ii) Loss of consortium, if beneficiary is the spouse
iii) Loss of Estate and love and love of affection etc.
18.As regards the medical expenses no medical bills are brought on record as injured was declared brought dead by the doctors.
19.Before assessing the loss of dependency I also placed my reliance on the observations given by their lordships in a decided case cited as "Sarla Verma Vs. Delhi Transport Corporation 2009 ACJ 1298"
wherein following principles are laid down :
"1. MULTIPLIER Age of the deceased (in Multiplier years) 1520 18 2125 18 2630 17 3135 16 3640 15 4145 14 4650 13 5155 11 MACT NO. 43/12 : SHAHNAZ VS. BABU LAL Page : 9/14 5660 09 6165 07 Above 65 05 II DECUTION FOR PERSONAL AND LIVING EXPENSES Deceased - unmarried
(i) Deduction towards personal expenses : ½ (50%)
(ii) Deduction where the family of the bachelor is large and dependent on the income of the deceased : 1/3rd (33.33%) Deceased - married
(i) 2 to 3 dependent family members : 1/3rd
(ii) 4 to 6 dependent family members :1/4th
(iii) More than 6 family members :1/5th
(iv) Subject to the evidence to the contrary : Father, brother & sisters will not be considered as dependents III FUTURE PROSPECTS
(i) Permanent job : Actual salary tax + 50% Below 40 years of age towards future prospects
(ii)Permanent job : Actual salary - tax + 30% Between 4050 years towards future prospects
(iii)More than 50 years with : Actual salary only. Permanent job. No addition for future prospects
(iv)Deceased employed at a : Only actual income to be taken fixed Salary (without : No addition provision for Annual increments)"
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20.In assessing the loss of dependency age of the deceased, proof of his income, his educational background is a relevant fact. Regarding age of deceased, PW1/wife of deceased has placed on record election I card of deceased Ex.PW1/2 wherein the age of deceased as on 1.1.2005 is mentioned as 35 years. The accident took place on 15.12.2011, thereby it is established that on the day of accident, deceased was more than 40 years of age. No evidence contrary to the record available in the file is placed by respondents. Therefore, for the purpose of assessing the loss of dependency, the age of deceased is to be considered as more than 40 years. Regarding proof of income, the letter of appointment and salary certificates Ex.PW2/A and PW2/B establish that the last salary drawn in the month of November 2011 by the deceased was Rs.11,500/ and these certificates are proved by PW2, Sr. Manager Mr. Gaurav Shukla from Carnation Auto India Pvt. Ltd. On relying the observation given by their lordships in Rajesh and others versus Rajbir Singh and others 2013(6) Scale 563, the petitioners have also become entitled for 30% increase in the salary of deceased which comes to Rs.14,950/ (Rs.11,500/ + 30%) per month. It is also brought on record that deceased left behind five legal heirs who are the petitioners in this case, therefore, on complying the observations given in Sarla Verma's case (Supra), 1/4th of the total MACT NO. 43/12 : SHAHNAZ VS. BABU LAL Page : 11/14 salary is to be deducted towards personal expenses, thereby the total income come to around Rs.11,213/ (Rs.14,950/ minus ¼th) . It is also proved that deceased was more than 40 years old at the time of accident therefore, for assessing the loss of dependency the multiplier of 14 would be made applicable. Thus the loss of dependency comes as Rs.11,213/ X 14 x 12 = Rs.18,83,784/.
21.Keeping in view all the relevant factors, principle of law laid down in the above mentioned decided case and the evidence brought on record by the petitioners, they have also become entitled for compensation towards loss of consortium Rs.10,000/, loss of love and affection Rs. 50,000/, towards loss of estate Rs.10,000/ and towards funeral expenses Rs.10,000/.
LIABILITY
22.On the point of deciding liability by whom the amount of compensation is payable, Ld. counsel on behalf of petitioners submitted that the offending vehicle was admittedly insured with respondent no.2, respondent no.1 was the driver who was having valid D/L to drive the offending vehicle and respondent no.2 is the registered owner. The said vehicle was duly insured with respondent no.2 in the name of respondent no.1. No evidence contrary to the evidence of the petitioners is placed on record by Insurance company, MACT NO. 43/12 : SHAHNAZ VS. BABU LAL Page : 12/14 therefore, the insurance company has become liable to indemnify respondent no.1 and also to make the payment of compensation.
23.In view of the rival contentions of Ld. counsel for both the parties and carefully perusing the record, this court finds that respondent no.1 was having a valid D/L and himself driving the offending vehicle, the petitioners have become entitled for the total amount of compensation towards all the heads as follows : Sl.No. On Account of Amount (Rs.) 1 Loss of dependency Rs.18,83,784/ 2 Loss of Love and affection Rs. 50,000/ 3 Loss towards consortium Rs.10,000/ 4 Loss of Estate Rs. 10,000/ 5 Funeral Expenses Rs. 10,000/ Total Rs.19,63,784/
24.Accordingly I grant a compensation to the tune of Rs.19,63,784/ in favour of the petitioners with interest @ 7.5% p.a. from the date of filing of the petition till its realization minus the amount of interim compensation, if any and interest excepted, if any, with the responsibility of insurance company to make the payment of award.
25.Out of total amount of award, 50% of the same shall be awarded to petitioner no.1 and out of her share, 40% shall be released to her and remaining 60% shall be kept in FDR for a period of five years with MACT NO. 43/12 : SHAHNAZ VS. BABU LAL Page : 13/14 release of periodical interest. 10% of the award shall be awarded to petitioners no.2 to 4 (minor children of petitioner no.1) each and whole such share shall be kept in FDRs till they attain the age of majority. 20% of the award amount shall be awarded to petitioner no. 5 (mother of deceased) and out of her share, 50% shall be released to her and remaining 50% shall be kept in the separate FDR for a period of five years with release of periodical interest.
26.The HDFC Ergo General Insurance Company Ltd. is hereby directed to deposit the award amount with upto date interest in Oriental Bank of Commerce branch F21, Preet Vihar Main Vikas Marg, Delhi1 in the name of the petitioners within 30 days from the date of award under the intimation to this court and bank would keep this amount in an account in the name of Judge MACT East and would wait for the further directions as to the disbursement of the same till the compliance is reported. An attested copy of this award alongwith two recent photographs of the petitioners with court stamp be also sent to the bank for facilitating the compliance.
File be consigned to the Record Room.
Announced in the open court
on 15th February, 2014 (MS. RAVINDER BEDI)
PRERSIDING OFFICER MACT (EAST)
KARKARDOOMA COURTS , DELHI.
MACT NO. 43/12 : SHAHNAZ VS. BABU LAL Page : 14/14
Suit No.43/12
15.02.2014
Present: None.
Vide separate order announced in open court today, Final Award to the tune of Rs.19,63,784/ is passed in favour of the petitioners with interest @ 7.5% p.a. from the date of filing of the petition till its realization minus the amount of interim compensation, if any, and interest excepted if any, with the responsibility of insurance company to make the payment of the award amount.
Out of total amount of award, 50% of the same shall be awarded to petitioner no.1 and out of her share, 40% shall be released to her and remaining 60% shall be kept in FDR for a period of five years with release of periodical interest. 10% of the award shall be awarded to petitioners no.2 to 4 (minor children of petitioner no.1) each and whole such share shall be kept in FDRs till they attain the age of majority. 20% of the award amount shall be awarded to petitioner no.5 (mother of deceased) and out of her share, 50% shall be released to her and remaining 50% shall be kept in the separate FDR for a period of five years with release of periodical interest.
The HDFC Ergo General Insurance Company Ltd. is hereby directed to deposit the award amount with upto date interest in Oriental Bank of Commerce branch, F21, Preet Vihar Main Vikas Marg Delhi1 branch in the name of the petitioner within 30 days from the date of award under the intimation to this court and bank would keep this amount in an account in the name of Judge MACT East and would wait for the further directions as to the disbursement of the same till the compliance is reported.
An attested copy of this award alongwith two recent photographs of the petitioners with court stamp be also sent to the bank for facilitating the compliance.
File be consigned to the Record Room.
MACT NO. 43/12 : SHAHNAZ VS. BABU LAL Page : 15/14 (MS. RAVINDER BEDI) PO MACT/EAST DISTT./DELHI/15.02.2014 MACT NO. 43/12 : SHAHNAZ VS. BABU LAL Page : 16/14