Delhi District Court
Smt.Reena W/O Late Sh.Anand Singh vs Satyawan S/O Sh.Lokman R/O Vill. ... on 3 January, 2007
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IN THE COURT OF SHRI D.K. SHARMA; JUDGE
MACT; NEW DELHI
Suit No.434/06
Smt.Reena w/o late Sh.Anand Singh
resident of Vill. Bijwasan, New Delhi.
.... Petitioner.
Versus
1. Satyawan s/o Sh.Lokman r/o Vill. Malukpur
PO Anup Shahar, Distt Bulandshahar, U.P
2. Surender Kumar s/o Sh. Om Parkash r/o
Vill. Paprawat Najafgaqrh,New Delhi.
3. The United India Ins. Co. Ltd.,
329,Ph-II Udyog Vihar, Dundahera,
Gurgaon, Haryana
4 Rishal Singh s/o Kehari
5. Murti Devi w/o Rishal ,
( Both r/o Vill.Bijwasan, New Delhi).
... Respondents.
Date of filing of petition : 22.10.99
Date of assignment to this court : 25.11.2006
Date of award : 3.1.2007
A WA R D
Facts in brief are that on 1.7.99 while deceased was
going towards Brijwasan in his Maruti car, he was hit by the half body truck no. HR 29 C 9285. Allegedly, the offending vehicle was being driven by Sh Satyawan (R1) in a rash 2 and negligent manner. The deceased succumbed to accidental injuries on 4.7.99. A case Fir No. 114/99 U/s 279/337 IPC was lodged at P.S. Kapashera. The deceased was 26 years of age at the time of accident. He left behind petitioner and petitioner no. 4 to 8 as his legal representatives. The offending vehicle was owned by Sh Surender Kumar, R2 and it was insured with M/s United India Insurance Company R3. Upon the petition being filed, the summons were sent to respondents.
2. Respondent no. 1 and 2 in their written statement denied all the allegations. Respondent no. 3 Insurance Company in its written statement admitted that the offending vehicle was duly insured with them vide cover note no. 911497 for the period 21.1.99 to 20.1.2000 vide policy No. 221403/31/021/11/02067/98 in the name of Sh Surender Kumar.
3. R4 to R8 in their written statement stated that petitioner has re-married after the death of Sh Anand Singh and therefore, she is not entitled for any compensation. It has been stated that R4 and R5 being the father and mother of the deceased are entitled for compensation. It has also been stated that they incurred the whole expenses towards treatment and medical aid to 3 the deceased during the period of his treatment in the sum of Rs 1,50,000/-.
4. Vide order dated 26.2.02, an interim award in the sum of Rs 50,000/- was awarded. It is worthwhile to mention here that at the stage of interim award, it was admitted by the petitioner that she has remarried on 29.6.01. On the pleadings of the parties, the following issues were framed:-
1. Whether the deceased Anand Singh sustained fatal injuries in a road accident dated 1.7.99 because of rash and negligent driving of truck no. HR 29 C 9285 by respondent no.1 as alleged ? OPP
2. If issue no.1 is proved in the affirmative, to what amount of compensation is petitioner and R4 and R5 are entitled to and from whom ? OPP
3. What is the effect of re-marriage by the petitioner after the death of the deceased? OPP
4. Whether R1 was not holding a valid and effective driving licence to drive the said truck 4 at the time of accident. If so, to what effect ? OPP -3.
5. Relief.
5. Petitioner examined herself as PW1 and tendered her evidence by way of affidavit. PW 2 Sh Randhir Singh is the father of the petitioner. R4 Sh Rishal Singh ie., father of the deceased appeared as RW 1 and tendered his evidence by way of affidavit.
6. I have heard Dr. J.S. Sangwan Ld. Counsel for the petitioner, Sh B.K. Sharma Ld. Counsel for Insurance company and Sh Rakesh Sharma Ld. Counsel for R4 and R5. I have gone through the record.
7. I propose to give my findings on the issues as follows:
ISSUE No.1
8. The rashness or negligence has not been defined in the Motor Vehicle Act. It is a settled proposition that onus to prove rashness or negligence in the present proceeding is entirely different from the criminal proceedings. Petitioner in her affidavit has specifically stated that a criminal case in respect of the accident u/s 279/337 IPC is pending before the criminal court. On 5 perusal of the file, I have found copy of FIR which indicates the involvement of the offending vehicle and factum of accident. The copy of post mortem report also transpires that the death took place on account of shock, head injuries and other associated injuries, ante mortem in nature from an automobile impact in road traffic accident. It is an admitted fact that no eye witness has been examined in this case. It has been held in the number of judgments that simply on account of non examination of eye witness by the petitioner, the claim petition cannot be rejected. There cannot be any quarrel to the settled proposition of Law that it is for the claimants to prove the negligence on the part of the respondents. However, in some cases it is not possible for the claimant to prove the same. In such cases, the respondent or the driver of the alleged offending vehicle are the best persons to come and state the facts leading to the accident. In the present case, R1 and R2 have not come forward to make any statement to the effect that accident took place due to the negligence of the deceased himself. In the written statement also simple denial was made and nothing was brought forward so as to disbelieve the case of the petitioner. Mere denial has no value in the eyes of law. The proceedings before the tribunal is only an enquiry. In N.K.V Brothers (P.) Ltd. 6
Vs. M.Karumai Ammal and Others 1980 ACJ 435 it was inter alia observed as under:-
'' Road accidents are one of the top killers in our country, specially when truck and bus drivers operate nocturnally. This proverbial recklessness often persuades the Courts, as has been observed by us earlier in other cases, to draw an initial presumption in several cases based on the doctrine of res ipsa loquitur. Accidents Claims Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The Court should not succumb to niceties, technicalities and mystic maybes. We are emphasizing this aspect because we are often distressed by transport operators getting away with it thanks to judicial laxity, despite the fact that they do not exercise sufficient disciplinary control over the drivers in the matter of careful driving. The heavy economic impact of culpable driving of public transport must bring owner and driver to their responsibility to their neighbour. Indeed the State must seriously consider no-fault liability by legislation''. 7
9. In Paramjit and another vs. Murari Lal Shankia and others 2005 ACJ 401 the claim petition was initially rejected by the Tribunal on the ground that the claimants have failed to prove rash and negligent driving on account of non-examination of eye witness. The appellate court held that as the driver of the offending vehicle did not enter the witness box to prove that there was no negligence on his part, claimants are entitled to compensation.
In Eller vs. Selfridge (1930) 46 T.L.R 236 it has been observed as under:-
'' The normal rule is that it is for the plaintiff to prove negligence but in some cases considerable hardship is caused to the plaintiff as the true cause of the accident is not known to him but is solely within the knowledge of the defendant who caused it. The plaintiff can prove the accident but cannot prove how it happened to establish negligence on the part of the defendant. This hardship is sought to be avoided by applying the principle of res ipsa loquitor. It means the accident, speaks for itself, or, tells its own story''
10. In view of the facts and circumstances, discussion made herein above and documents placed on record, I 8 consider that the petitioner has successfully proved that the accident took place on account of rash and negligent driving of R1 while driving vehicle No. HR 29 C 9285 and Sh Anand Singh suffered fatal injuries in the same. Issue No. 2 & 3
11. I propose to dispose off issue no. 2 and 3 together. It is an admitted fact that petitioner remarried after around 2 years of the death of her husband. During arguments, Dr. J.S. Sangwan ld. Counsel for the petitioner stated at Bar that petitioner lost her second husband also.
As far as legal proposition is concerned, the fact that only because the petitioner remarried after the death of her husband. She cannot be deprived of the compensation on the ground of death of her husband. The compensation is awarded as on the date of the accident. The fact that petitioner remarried subsequently will only affect her share in the same. The Motor Vehicle Act has been enacted to serve the cause of the society. It is a beneficial legislation and has to be read in favour of the victims of the accident or their legal representatives. As per the scheme of the Act, a widow does not cease to be legal representative of the deceased and as such is entitled to compensation on account of the death of her deceased husband. This fact 9 has also to be borne in mind that unfortunately, the second husband, the person with whom the petitioner remarried has also died. In Sobha Jain & Anther Vs. Bihar State Tribal Co-op. Development Corporation Ltd., Ranchi and other 1983 ACJ 327, it was inter-alia held as under:-
''On the other hand, Learned counsel for the appellants has placed reliance on the case of R.B. Moondra & Co. V. Bhanwari. In this ruling, it has been held that in the Workmen's Compensation Act, there is no such provision that after remarriage the widow of the deceased would not be regarded as dependant. It has also been pointed out that under section 21 of the Hindu Adoptions and Maintenance act, 1956, a widow remains dependent, within the meaning of that section so long as she is not remarried, but the definition of the 'dependant' under the Act is not so restricted and the fact that she has remarried will not be dis-entitled her to claim compensation under the Act. I find from the Workmen's Compensation Act, 1923 that in section 2(1)(d) "dependant" means a widow of the deceased workman. Thus under this Act there may be conflicting view 10 whether a widow after remarriage can be said to be dependent of the deceased or not. However, under section 110-A of the said Act an application for compensation arising from an accident may be made by all or any of the legal representatives of the deceased. Thus under section 110-A of the said Act a legal representative of the deceased is entitled to the compensation and it has not been asserted at the time of arguments on behalf of respondent No.1 that the widow ceased to be legal representative of the deceased after remarriage. Under such circumstances, I hold that plaintiff no.1 even after remarriage is entitled to the compensation on account of the death of her deceased husband.''
12. Therefore, the legal position which to my mind emerges that a widow cannot be deprived of her right to claim compensation. However, the fact that she has remarried shall certainly be a factor while apportioning compensation between widow and other claimants.
Reference can be made to "Rajinder Kumar and others Vs. Soma Devi and Others 2001 ACJ 307"
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13. Petitioner in her affidavit has deposed on oath that she was married to deceased in December 1995. It was further deposed that deceased was earning Rs 15,000/- per month as he was having two building material shops at Village Brijwasan. It also came in evidence that a sum of Rs 1,50,000/- was spent on the treatment of deceased though the petitioner stated that this amount was spent by her father but there q contrary evidence on this fact also. The petitioner stated that the deceased was also earning Rs 5000/- per month as Agriculture income. It was stated that petitioner was 26 years of age at the time of accident.
14. In the cross examination, the petitioner stated that her husband was the sole proprietor of business of building material. She also stated that she was pushed out of her matrimonial house after the death of her husband. It also came in his cross examination that the husband of petitioner was 12th class pass.
15. The father of deceased Sh Rishal Singh (R4) appeared as RW 1. He also stated in his affidavit that deceased was 12th pass and he was 26 years of age at the time of accident. R 1 also stated that deceased was earning around 12,000/- to 15,000/- per month. He also 12 stated that he incurred all the expenses on the treatment of deceased in the sum of Rs 1,50,000/-. It also came in his cross examination of RW 1 that even after the death of his son , the whole agricultural land which he was cultivating or having income from is still in his possession.
16. On perusal of the record, I have found that there is documentary evidence on record that deceased was 12th pass. As per certificate the date of birth of deceased was 22.10.73. Therefore, the deceased was around 26 years of age at the time of accident. Though there is no documentary evidence in regard to the income or business being run by the deceased the photocopy of passbook of the deceased placed on record indicates regular transactions in the bank. Some other documents have also been filed which indicate that the deceased was running cement business. It has also been placed on record that deceased was having an agricultural land . It is a known fact that the farmers now take cash crop on their land and earn substantially. Though there is no documentary evidence on record regarding the income of the deceased, however, taking into account the surrounding facts and circumstances and the fact that deceased was also having maruti car , I consider that the income of the deceased can be taken 13 as Rs 7500/- per month.
17. In Sarla Dixit vs. Balwant Yadav 1996 ACJ 581, it was held that the proper method of computation is the multiplier method. Any departure, except in exceptional and extraordinary cases, would introduce inconsistency of principle, lack of uniformity and element of unpredictability for the assessment of compensation. It was further held in Sarla Dixit's case (supra) that the future prospects of advancement in life and career should also be sounded in terms of money to augment the multiplicand.
18. Therefore taking into account the principle laid down in Sarla Dixit's case (supra) and taking into account the prospects of advancement in future career, the proper higher estimate of monthly income can be taken as Rs.7500/- p.m., had he survived in life and would have lived upto the normal expected span of life. The average gross future monthly income can be arrived at by adding the actual gross income at the time of death namely Rs.7500/- to the maximum which he would have otherwise earned had he not died a pre-mature death i.e Rs.15,000/- p.m and divided by 2. Thus the average gross monthly income spread over his entire future career had it 14 been available would work out to Rs.22500/- divided by 2 i.e. 11250/- and this would have been the gross monthly average income available to the family of the deceased. Out of this, 1/3rd can be deducted as the personal expenses of the deceased which will have to be deducted from the gross monthly average income and after deducting 1/3rd i.e. Rs.3750/- the figure comes to Rs.7500/- p.m. It is this figure which would be datum figure p.m which on annual basis would work out to be Rs.90000/-. This figure to my mind would be the proper multiplicand which would be available for the capitalization for computing future economic loss suffered by the petitioner on account of untimely death.
19. It is a settled proposition that multiplier is taken according to the age of the deceased or the claimants which ever is higher. In the present case the deceased was 26 years of age at the time of accident. It is an admitted fact that petitioner i.e. widow of the deceased has re-married. Therefore the multiplier is to be taken according to the age of the father of the deceased. The father of the deceased was around 50 years of age at the time of accident. At the age of 50 I consider that proper multiplier would be of 11. Hence the compensation comes to Rs.9,0000 x 11 = Rs.9,90,000/-. A sum of 25,000/- 15 by way of loss of consortium is also awarded in favour of petitioner. In addition to it, I consider that a sum of Rs.10,000/- each for parents of deceased i.e R-4 and R-5 on account of loss of love and affection shall also meet the ends of justice. A sum of Rs.10,000/- is also awarded on account of funeral expenses.
20. The parties have also placed on record bills of Appolo Hospital in the sum of around Rs.95,000/-. However, the corresponding receipts Ex.RW1/C and RW1/D are in the sum of Rs.65000/-. It has been proved on the record that deceased remained under treatment from 1.7.1999 to 4.7.1999. In view of the receipts of payment made to Appolo Hospital, this amount is also liable to be awarded to the petitioner. Though the petitioner has stated that this amount was spent by her father, however, in this respect the testimony of the father of the deceased seems to be more reliable and credit worthy. Therefore this amount is awarded in favour of R-4. Issue No.4
21. The Insurance Company has taken a plea in their WS that driver of the offending vehicle was not holding a valid and effective driving license. However, the respondents have not lead any evidence to this effect. It 16 seems that Insurance Company took this plea only for the sake of taking the plea. There is nothing on the record to suggest that R-1 was not holding a valid and effective DL at the time of accident. This issue is decided accordingly.
Relief
22. In view of the discussion made herein above, I hereby pass an award in the sum of Rs.11,10,000/- which I consider to be just and reasonable. It is an admitted fact that petitioner re-married after about 2 years of the death of her husband. Though the petitioner might have re- married but she must have suffered a lot on account of death of her husband. As I have discussed above, it has also been stated at Bar during the arguments that the second husband of the petitioner has also died. I consider that in the totality of the facts and circumstances, out of the awarded amount i.e. Rs.9,90,000/-, let a sum of Rs.4,00000/- (rupees four lacs only) be paid to petitioner i.e. widow of the deceased. In addition to Rs.4 lacs, a sum of Rs.25,000/- is awarded on account of loss of consortium is also awarded to the petitioner. The remaining Rs.5,90,000/- (rupees five lacs ninety thousand only) be distributed equally between the parents of the deceased i.e. R-4 and R-5. As far as R-4 and R-5 are concerned, 17 their share comes as follows :-
R-4 Sh.Rishal Singh is entitled for the following amount of compensation:-
Compensation comes to : Rs.2,95,000/-
Compensation for love and affection Rs.10,000/-
Funeral expenses Rs.10,000/-
Expenses for treatment Rs.65000/-
Total Rs.3,80,000/-
Remaining amount i.e. Rs.2,95,000/- along with Rs.10,000/- for love and affection is awarded in favour of R-
5. The petition4ers are also entitled for the forbearance and detention of money. Hence an interest at the rate of 9% p.a is awarded in favour of the petitioner and against respondents No.1 to 3. R-1 to R-3 are jointly and severally liable to pay the awarded amount. However, R-3 being Insurance Company is liable to make the payment of compensation. R-3 is directed to deposit the compensation as awarded above along with proportionate interest within 30 days. Out of the amount awarded to petitioner, a sum of Rs.2,50,000/-be kept in FDR in a Nationalized Bank for a period of 7 years. The petitioner may withdraw a monthly /quarterly interest of the same. However, no advance or loan on the said FDR 18 shall be taken without permission of the court. Out of the share of R-4 and R-5, 50% of the same along with proportionate interest be also kept in DFR in a Nationalized Bank for 7 years. In case the Insurance Company fails to pay the awarded amount within 30 days, they are liable to pay interest @ 12% p.a. After the expiry of 30 days and till realization. A copy of the award be supplied to the parties. File be consigned to record room.
Announced in open court ( D.K.SHARMA ) Dated 03.1.2007 Judge; MACT: New Delhi