Delhi District Court
Chanderkala vs . Madan Lal on 14 September, 2011
Chanderkala Vs. Madan Lal
1
IN THE COURT OF SHRI SANJIV JAIN PO : MACT : SOUTH DISTRICTII
SAKET COURTS : NEW DELHI.
In Suit No. : 716/10
1. Chander Kala W/o S. Keshav Kumar
2. Sh. Keshav Kumar S/o Sh. Ram Swaroop
Both are residents of :
19C, Arjun Nagar, New Delhi110029
...... Petitioners
Versus
1. Madan Lal
R/o Village Bokha, P.S. Dhani Kulana
Distt. Rewari, Haryana (Driver)
2. Haryana Roadways
Through Secretary Transport
Chandigarh, Haryana
3. Haryana Roadways
Through Depot Manager,
Distt. Narnol, Haryana
4. ICICI Lombard General Insurance Co. Ltd.
Birla Tower, 5th Floor,
25th Barakhamba Road,
New Delhi (Insurer)
.......Respondents
Continued...........1/22
Chanderkala Vs. Madan Lal
2
Date of Institution : 04.08.2010
Date of reserving of judgment/order : 19.08.2011
Date of pronouncement : 14.09.2011
JUDGMENT:
1. Kapil Kumar unaware of the fact that a calamity in the form of his 'untimely death' was standing at threshold of his destiny, was going from Arjun Nagar to Lajpat Nagar on his motorcycle bearing no. DL 3S BD 2296. This journey proved unaffordable for Kapil Kumar as he lost his life in the same, leaving behind his parents.
2. It was alleged that Kapil Kumar sustained fatal injuries in the accident which took place with Haryana Roadways bus bearing registration no. HR 46 4929 being driven in a rash and negligent manner by respondent no.1, owned by respondent no.2 and insured with respondent no. 4.
3. Subsequent thereto, parents of deceased Kapil Kumar, being the legal heirs of deceased Kapil Kumar, invoked the jurisdiction this Tribunal by filing the present petition under Section 166 read with Section 140 of Motor Vehicles Act seeking compensation against the above respondents. Continued...........2/22
Chanderkala Vs. Madan Lal 3
4. Relevant facts necessary for adjudication and disposal of the present petition as emanating from the same, apart from those stated herein above are that:
(a) On 10.05.2010 at about 10.30 AM the deceased was going from Arjun Nagar to Lajpat Nagar on his motorcycle bearing no. DL 3S BD 2296. When he reached Andrews Ganj flyover, the Haryana Roadways bus HR 46 4929 came from behind being driven by respondent no.1 at a high speed rashly and negligently and hit the motorcycle with a great force. Due to this forceful impact, the motorcyclist fell down on the road and died on the spot.
(b) It was stated that the deceased was aged about 24 years at the time of accident and earning Rs. 254386/ per annum + perks. He was expected to live uptill the age of 80 years had he not died in the accident.
(c) It was stated that due to untimely death of Kapil Kumar, his parents have been under pain and agony, since they lost the affectionate company of the deceased.
(d) It is stated that petitioners be adequately compensated.
5. Notice of the petition was given to the respondents. Pursuant to the same, respondents appeared and filed their written statements.
6. Respondent No. 1 denied the allegations of the petitioners as averred in the petition however, stated that the vehicle was insured with respondent no.4. Continued...........3/22
Chanderkala Vs. Madan Lal 4 The respondent no.1 and 2 in their statement alleged that the accident was caused by the motorcyclist by rash and negligent driving. He had hit the bus from behind and struck against the wall of the flyover and fell down. It was stated that a false case was got registered against the respondent no.1 in order to claim compensation. The respondent no.4. on receipt of notice of the DAR filed by the Investigating Officer in this case of FIR No. 155/10 registered at police station Hauz Khas filed the legal offer offering a compensation of Rs.16,60,000/ to the petitioners on account of untimely death of the deceased in the accident.
9. Parties to the present petition were thereafter called upon to substantiate their case by leading evidence.
10. Petitioner no.1 Smt. Chanderkala appeared in the witness box as PW1 and tendered her affidavit Ex.PW1/A reiterating the facts as averred in the petition. She denied that the accident had occurred due to the negligence of the deceased himself or that the deceased was not earning Rs.254386/ per annum as alleged in the petition. PW2 Sh. Ganesh Venkatraman brought the employment record of the deceased. He stated that the deceased had been working in DELL International Services India Pvt. Ltd. at Gurgaon as a Senior Technical Support. He brought the copy of his employment Letter Ex.PW2/1, his salary certificate Ex.PW2/2, pay slip for the month of April and May, 2010 Ex.PW2/4 and 5. He Continued...........4/22 Chanderkala Vs. Madan Lal 5 stated that as per the rules of the company, an employee who has served the company for at least 2 years is entitled to increment of 12 % in his basic salary and the promotion avenues depend on the individual performance of the employee.
11. In this case the DAR was also filed as per which the case was registered against the respondent no.1 for his rash and negligent driving of Haryana Roadways bus causing the accident resulting in the death of Kapil Kumar. The Investigating Officer had also verified the policy, driving license of the respondent no.1 and collected the post mortem report of the deceased as per which the cause of the death was shock and haemurrage consequent upon the injuries caused in a road traffic accident.
11. No witness was examined by any of the respondents.
12. I have heard the arguments advanced by Sh. Umesh, Ld. Counsel for the petitioners and Sh. Varun Dhingra, Ld. Counsel for the Insurance Company as well as perused the documentary evidence on record.
13. It is contended on behalf of the petitioners that due to involvement of the vehicle driven by respondent no.1, not only deceased Kapil Kumar lost his life Continued...........5/22 Chanderkala Vs. Madan Lal 6 but the lives of the petitioners have also been ruined as the deceased was having a bright future, would be the supporting earning member of the family in near future and could serve all financial and sentimental needs of his parents in their old age. It is submitted that deceased would have gone on to live a longer life, had he not met with the accident. It is further submitted that the bus was being driven in a rash and negligent manner by respondent no.1 which fact is also clear from the DAR filed by the Investigating Officer of the case FIR no. 716/10.
14. Ld. Counsel for the Insurance Company, on the contrary, argued that the deceased was not a permanent employee and thus future prospects are not to be added while calculating the loss of dependency.
15. I have given my thoughtful consideration to the rival contentions and perused the record.
16. My finding is as under:
17. Standard of proof of negligence required in order to dispose off the claim stands on a much lesser footing than what is required in a criminal case or in a civil case. It was held in " Ranu Bala Paul and Ors. V/s Bani Chakraborty and Ors., 1999 ACJ 634 by Hon'ble Guahati High Court : Continued...........6/22
Chanderkala Vs. Madan Lal 7 "In deciding a matter Tribunal should bear in mind the caution struck by the Apex Court that a claim before the Motor Accidents Claims Tribunal is neither a criminal case nor a civil case. In a criminal case in order to have conviction, the matter is to be proved beyond reasonable doubt and in a civil case the matter is to be decided on the basis of preponderance of evidence, but in a claim before the Motor Accidents Claims Tribunal, the standard proof is much below than what is required in a criminal case as well as in a civil case. No doubt before the Tribunal, there must be some material on the basis of which the Tribunal can arrive or decide things necessary to be decided for awarding compensation. But the Tribunal is not expected to take or to adopt the nicety of a civil or of a criminal case. After all, it is a summary inquiry and this is a legislation for the welfare of the society."
18. In N.K.V.Bros(P) Ltd. V/s M.Karumai Ammal & Others, (1980) 3 SCC 457, Hon'ble Supreme Court has observed as under: "Road accidents are one of the top killers in our country, specially when bus and bus drivers operate nocturnally. This proverbial Continued...........7/22 Chanderkala Vs. Madan Lal 8 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 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."
19. In the backdrop of above case law, the evidence of the petitioners is required to be considered.
Continued...........8/22
Chanderkala Vs. Madan Lal 9
20. Petitioner no. 1 has filed her affidavit Ex.PW1/1 and deposed on the same lines as stated in the petition. The investigating officer has also filed DAR after investigation of this case which was registered vide FIR no. 155/10 U/s 279/304A IPC at police station Hauz Khas. Perusal of the FIR and the other documents reveals that the bus was being driven in a rash and negligent manner by respondent no.1 which hit the motorcycle of the deceased from behind resulting in his death. Hon'ble High Court of Delhi in case titled ''National Insurance Company Limited V/s Pushpa Rana'' reported as 2009 ACJ 287 has held that whenever criminal proceedings are placed on record on completion of investigation by the police, then that in itself is sufficient proof of the negligent driving of driver of the offending vehicle involved in the accident. Further, nothing has come in evidence that the accident had not resulted due to rash and negligent driving by respondent no.1. Even, the respondent no.4 did not dispute the manner of accident and gave the legal offer to compensate the petitioners.
21. Petitioners, thus, have been able to establish that accident took place due to negligence of respondent No. 1 which resulted in the death of deceased Kapil Kumar. It is also an admitted position on record that respondent no. 2 was the owner of the offending vehicle and it was insured with respondent no. 4. Continued...........9/22
Chanderkala Vs. Madan Lal 10 Quantum of the compensation is now, to be calculated.
22. It has been held in a catena of judgments that emphasis in cases of personal injury and fatal accident should be on awarding substantial, just and fair compensation and not a token amount. General principle in calculating such sum of compensation, should be so as to put the injured or legal heirs of a deceased in case of fatal accident, in the same position as he would have been, if accident had not taken place. The amount of compensation no doubt cannot bring back the dead but it certainly helps the LR's and dependents to live life with dignity and comfort as they were living during the lifetime of the deceased. The amount of compensation is awarded on the basis of age, the earning capacity and other liabilities of the deceased. The appropriate method of calculating compensation in fatal cases is multiplier method. The Hon'ble Supreme Court in plethora of judgments has laid down that in India, the multiplier method is proper for calculation of compensation.
23. In order to calculate the amount of compensation, the sum is required to be considered under the various heads :
(a) LOSS OF DEPENDENCY :
24. Petitioner No. 1 Chander Kala during the course of her deposition as PW1 has stated that she being the mother and the petitioner no.2 being his father Continued...........10/22 Chanderkala Vs. Madan Lal 11 are the sole legal heirs of the deceased Kapil Kumar. This fact has not been controverted by the respondents and no contrary evidence to that effect has been brought on record. No one else has challenged the claim petition filed by the petitioners, therefore, deposition of PW1 is to be believed on this aspect.
25. PW1 has stated that her son was 24 years of age at the time of accident. He had been working as Sr. Technical Support Associate with Dell International Services Pvt. Ltd. on an annual package of Rs. 284188/. He had been spending all his earnings for the welfare and the benefit of the petitioners who were totally dependent on the earnings of the deceased. He was qualified Engineer in software and hardware in computer and would have earned much more in future had he not died in an unfortunate accident. PW2 proved the appointment letter of the deceased Ex.PW2/1 as per which he was given offer to join the company on or before March 15, 2010. As per the document Ex.PW2/2, he was given a package of Rs.2,84,188/ per annum. Although, the package includes TA & Conveyance but no specific amount is mentioned in the package. For computation of income for loss of dependency, Rs. 10000/ is taken as TA & Conveyance, so the net annual income comes to Rs.2,74,188/. Perusal of the pay slip reveals that Rs. 699/ per month was being deducted on account of income tax. Thus, the net annual income after deduction of income tax comes to Rs.2,65,800/. Continued...........11/22
Chanderkala Vs. Madan Lal 12
26. From the testimony of PW 1, I find that the deceased was a qualified engineer. So in these circumstances, there would not be any obstacle in the way of the deceased in attending the highest ambition in his life. Had the deceased not died in this accident, he would have earned much more.
27. Hon'ble Supreme Court in "General Manager Kerala Transport Road Corporation V/s. Susamma Thomas" reported as 1994 ACJ 1 (SC) as well as in Smt. Sarla Dixit & Ors. V/s Balwant Yadav & Ors. Reported as AIR 1996, SC1274" has held :
"As would be evident from catena of judgments of the Supreme Court, the future prospects have no correlation with the price index, inflation or denunciation of currency value. The future prospects would necessarily mean advancement in future career, earnings and progression in one's life. It could be considered by seeing, from which post a person began his career, what avenues or prospects he has while being in a particular avocation and what targets he/she would finally achieve at the end of his career. The promotional avenues, career progression, grant of selection grades etc. are some of the broad features for considering one's future prospects in one's career.Continued...........12/22
Chanderkala Vs. Madan Lal 13
28. It has also been held in catena of Judgments that future prospects of advancement of life and carrier should also be sounded in terms of money to augment the multiplicand (annual contribution to the dependent) and the Court can take note of the prospects of the future and it will be unreasonable to estimate the loss of dependency on the actual income of the deceased at the time of the death.
29. Thus, future prospects are also to be taken in the present case while calculating the dependency, which as per the Sarla Verma Vs. DTC 2009 (6) scale 129 is taken as 50 per cent of the basic salary. So, the total annual income after adding future prospects comes to Rs.2,65,800/ + 50% of Rs. 2,65,800/ = Rs. 3,98,700/.
30. The deceased was a bachelor and the claimants are the parents. It was held in the case of Sarla Verma (supra) that in regard to the bachelor, normally 50 per cent is deducted as personal and living expenses because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there was a possibility of his getting marriage in a short time, in which time the contribution to the parents and siblings would be cut drastically. It was also held that even if the deceased is survived by parents and siblings, only the mother would be considered as dependent and 50 per cent would be treated as personal and Continued...........13/22 Chanderkala Vs. Madan Lal 14 living expenses of the bachelor and 50 per cent as the contribution to the family. It was also held that while calculating the dependency, the multiplier is to be applied with reference to the age of the mother in the case of a bachelor. In the present case, as evident from the copy of voter ICard, the age of the mother of the deceased as on 01.01.2008 was 40 years. The date of accident is 10.05.2010. Thus, the age of the mother comes to 42 years at the time of accident. Hence, a multiplier of '14' is taken for calculating the loss of dependency.
31. In view thereof, the gross annual income of the deceased would come to Rs. 3,98,700 - 50% of Rs. 3,98,700 = Rs. 1,99,350/. Thus, the total loss of dependency taking the multiplier as '14' comes to Rs. 27,90,900/ (1,99,350 x 14).
32. I therefore, award a sum of Rs. 27,90,900/ to the petitioners towards "Loss of Dependency".
(b) LOSS OF LOVE AND AFFECTION :
33. Petitioner No. 1 Chander Kala at this stage of her life has lost her son on whom she was financially and emotionally dependent. Care, love and affection which old and feeble parents of deceased had required from their son at the fag end of their lives can not be measured or assessed. It has been held by Hon'ble Continued...........14/22 Chanderkala Vs. Madan Lal 15 High Court of Delhi in the case titled as Kailash Kaur vs. New India Insurance Company bearing M.A.C. Pet.. No. 318/08 decided on 24.03.2009 that compensation towards loss of love and affection should be granted at the rate of Rs. 25,000/ per petitioner.
34. In view thereof, I award a sum of Rs. 50,000/ i.e. Rs. 25,000 x 2 to the petitioners towards "Loss of Love and Affection".
(c) FUNERAL EXPENSES
35. I award a sum of Rs. 10,000/ to the petitioners on account of "Funeral Expenses" .
(d) LOSS OF ESTATE :
36. I award a sum of Rs. 10,000/ to the petitioners on account of "Loss to Estate".
: LIABILITY :
37. As the offending vehicle was being driven by respondent No. 1 therefore primary liability to compensate the petitioner is that of respondent No. 1. As the offending vehicle was owned by respondent No. 2 therefore, he becomes Continued...........15/22 Chanderkala Vs. Madan Lal 16 vicariously liable to compensate the petitioner. It is an admitted position on record that the offending vehicle was insured with respondent No. 4 insurance company. Therefore, respondent No. 4 Insurance Company becomes contractually liable to indemnify the petitioner for the above mentioned awarded amount to the extent of liability of the insured.
R E L I E F
38. In view of my findings petitioners are entitled to the following compensation :
1) LOSS OF DEPENDENCY = Rs.27,90,900/
2) LOSS OF LOVE AND AFFECTION = Rs. 50,000/
3) FUNERAL EXPENSES = Rs. 10,000/
4) LOSS OF ESTATE = Rs. 10,000/
__________________________________________________ Total = Rs.28,60,900/
39. Petitioners are thus awarded a sum of Rs. 28,60,900/ alongwith interest @ 9% per annum from the date filing of petition till realization of the amount.
: RELEASE OF THE AWARDED AMOUNT : In the share of Petitioner No. 1 and 2 (parents of deceased Late Sh. Kapil Kumar).
Continued...........16/22
Chanderkala Vs. Madan Lal 17
40. A sum of Rs. 14,30,450/ each alongwith the proportionate interest thereon, is awarded to petitioner No. 1 and 2 being parents of deceased Kapil Kumar.
41. Out of this awarded amount, a sum of Rs. 12,50,000/ be deposited in the form of FDR in the name of petitioner No. 1 and 2 in the following phased manner :
(a) A sum of Rs. 2,50,000/ for a period of 2 years
(b) A sum of Rs. 2,50,000/ for a period of 3 years.
(c) A sum of Rs. 2,50,000/ for a period of 4 years.
(d) A sum of Rs. 2,50,000/ for a period of 5 years.
(e) A sum of Rs. 2,50,000/ for a period of 6 years.
Deposition of awarded amount with STATE BANK OF INDIA,
Saket Court Branch, New Delhi.
42. In terms of the directions given by Hon'ble High Court in case titled "
Rajesh Tyagi Vs. Jaibir Singh and Ors." bearing FAO number 842/2003 decided on 08.06.20009, UCO Bank/ State Bank of India has agreed to open a Special Fixed Deposit Account for the victims of road accidents.Continued...........17/22
Chanderkala Vs. Madan Lal 18
43. As per orders of Hon'ble High Court in case titled " New India Assurance Co. Ltd Vs. Ganga Devi & Ors bearing MAC. App. 135/2008" as well as in another case titled as " Union of India V/s Nanisiri" bearing M.A.C. Appeal No. 682/2005 dated 13.01.2010, directions were given to the Claims Tribunal to deposit part of the awarded amount in fixed deposit in a phased manner depending upon the financial status and financial needs of the claimants.
44. In consonance to the idea by which part of the awarded amount is ordered to be kept in fixed deposit / savings account by Hon'ble high Court, Insurance Company is directed to deposit the awarded amount in favour of the petitioners with State Bank of India, Saket Courts Complex Branch, against account of petitioner no.1 and 2.
within a period of 30 days from today, failing which respondent No. 4 Insurance Company shall be liable to pay future interest @ 12% per annum till realization (for the delayed period)
45. Upon the aforesaid amount being deposited, the State Bank fo India, Saket Court Complex, New Delhi, is directed to keep the awarded amount in the "fixed deposit / saving account'' in the following manner: Continued...........18/22 Chanderkala Vs. Madan Lal 19
(i) The interest on the fixed deposit be paid to the petitioners / claimants by Automatic Credit of interest of their saving bank accounts with State Bank of India, Saket Court Branch, New Delhi.
(ii) Withdrawal from the aforesaid account shall be permitted to claimants / petitioners after due verification and the Bank shall issue photo identity Card to claimants / petitioners to facilitate identity.
(iii) No cheque book be issued to claimants / petitioners without the permission of this Court.
(iv) The original fixed deposit receipts shall be retained by the Bank in safe custody. However, the original Pass Book shall be given to the claimants / petitioners alongwith the photocopy of the FDR's .
(v) The original fixed deposit receipts shall be handed over to claimants / petitioners at the end of the fixed deposit period.
(vi) No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the permission of this Court.
(vii) Half yearly statement of account be filed by the Bank in this Court.
(viii) On the request of claimants / petitioners, the Bank shall transfer the Savings Account to any other branch of State Bank of India, according to their convenience.
(ix) Claimants / petitioners shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit Account to Branch Manager, Continued...........19/22 Chanderkala Vs. Madan Lal 20 State Bank of India, Saket Courts Complex Branch, New Delhi DIRECTIONS FOR THE INSURANCE COMPANY
46. The Respondents no. 4 is directed to file the compliance report of their having deposited the awarded amount with State Bank of India, Saket Court Branch in this tribunal within a period of 30 days from today.
47. The Insurance Company is directed to furnish a copy of this award alongwith the cheques of the awarded amount to the Manager of State Bank of India, Saket Court Branch, so as to facilitate the Manager of State Bank of India, Saket Court Branch to have the identification of the claimants/ petitioners in whose favour the award has been passed.
48. The Respondent no. 4 is further directed to furnish the claim petition number and name of the parties at the back side of the cheques of the awarded amount, so that the same be not misplaced.
49. The Insurance Company shall intimate to the claimants / petitioners about Continued...........20/22 Chanderkala Vs. Madan Lal 21 their having deposited the cheques in favor of the petitioners in terms of the award, at the address of the petitioners mentioned at the title of the award, so as to facilitate them to withdraw the same.
50. Copy of this award / judgment be given to the petitioners who are directed to furnish the same to the Manager of State Bank of India, Saket Court Branch for necessary compliance after their having received the notice of the deposit of awarded amount from the Insurance company.
51. Copy of this Award / Judgment be given to counsel for the Insurance Company for necessary compliance.
52. File be consigned to record room after receipt of the compliance report from the Insurance company.
Announced in the open court on 14th Day of September, 2011 (SANJIV JAIN) PO : MACT/SOUTH 14.09.2011 Continued...........21/22 Chanderkala Vs. Madan Lal 22 Chander Kala Vs. Madan Lal Suit No. 716/10 14.09.2011 Present : Ld. counsel for the parties.
Vide separate order of even date a compensation of Rs. 28,86,100/ with interest @ 9% is passed in favour of petitioners. Copy of the award be given to the parties.
File be consigned to Record Room.
(SANJIV JAIN) PO : MACT/SOUTH 14.09.2011 Continued...........22/22