Delhi District Court
Smt.Krishna Devi W/O Sh.(Late) Chander ... vs A.S.I Ram Pal Singh No.3493/D on 13 October, 2011
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IN THE COURT OF SH. J. R. ARYAN
ADDITIONAL SESSIONS JUDGE, NEW DELHI
Date of Institution: 19.12.2001
Date of judgment reserved on:13.10.2011
Date of decision: 13.10.2011
NEW MACT No. 05/11
OLD No.208/01
IN THE MATTER OF
1. Smt.Krishna Devi W/o Sh.(Late) Chander Bhan
2. Sh.Ram Prasad S/o Late Sh.Chander Bhan
3. Madan Lal S/o Late Sh.Chander Bhan
4. Km. Ashwani D/o Late Sh.Chander Bhan
All R/o E98, Madhu Vihar, Palam, New Delhi.
5. Smt.Prem W/o Sh.Anil Kumar ..... Claimants/petitioners
Versus
1.A.S.I Ram Pal Singh No.3493/D, Teen Murti Traffic Lines
New Delhi.
2. D.C.P. Traffic Police,Teen Muri Lines,
Billingdon Crescent, New Delhi.
3. U.O.I. Through its Secretary,
Ministry of Home Affairs,
South Block, New Delhi. .... Respondents
JUDGMENT/AWARD:
1. Claimants in this death claim MACT petition are Smt.Krishna Devi widow, her two sons Ram Prasad and Madan Lal and daughter Ashwani. Deceased :2: victim Chander Bhan stated to be 55 years of age and employed with Central Ordinance Depot Delhi Cantt, Delhi met with an accident on 3/5/1997. Deceased was occupant of an autorickshaw bearing No.DAR227 which he boarded from RML hospital bus stop. Autorickshaw when moving on Sardar Patel Marg reached near the gate of Taj Palace Hotel where an Ambassador car bearing No.DL1CF2209 was parked/stationery on the left side of the road. Respondent No.1 in this claim petition a police official ASI Rampal Singh occupying driver seat of that Ambassador car suddenly opened the driver side door of the car and door hit/struck TSR on its front left side whereby TSR went unbalanced and overturned on the road. Occupants of the TSR including victim deceased Chander Bhan suffered injuries and all the injured were removed to RML hospital. MLC of victim injured Chander Bhan prepared at RML hospital and now put exhibit mark Ex.CW1/A showed that victim had sustained abrasion on right dorsum of hand, tenderness on both hip joint and abrasion on right lumber region. Finally injury was found to be grievous one as it was found to be a compound fracture vide report Ex.PW3/A1 to A4.
2. It is further pleaded in the claim petition that condition of the victim deceased deteriorated and he was taken to Jeevan Nursing Home a private hospital on 17/5/1997 and there victim deceased died on 17/5/1997 itself. Death report prepared at Jeevan Nursing Home mark Ex.CW1/C showed that cause of death was cardiogenic shock, septicemic shock with metabolic aciodosus. Claimants prayed for a compensation of Rs.five lakhs on a plea that cause of accident was negligence on the part of respondent No.1 as he suddenly opened the driver side door of Ambassador car when auto rickshaw was in the process :3: of taking over that stationery ambassador car. Respondents 2 & 3 are impleaded as owner of that Ambassador car as the car belonged to DCP traffic police and respondent No.3 is the Union of India through Secretary, Ministry of Home. Claim petition filed in December 2001 left the column as regards income of victim deceased blank but then when amended petition was filed in the year 2004 that column mentioned income of deceased at Rs.6,000/ per month. This is in brief the claimants case in this petition.
3. Respondent No.1 ASI Rampal filed written statement and took a plea that in fact cause of accident was the fault and negligence on the part of driver of the TSR who failed to see and observe opening of the door of the car and could not control his vehicle and rather TSR hit against the door of the car. It is further pleaded that in fact deceased was sharing the seat of the driver of the TSR as there were already three adult persons in the TSR passenger seat and thus driver was unable to drive TSR comfortably and that was the cause for this accident. TSR was meant for carrying three passengers and carrying four passengers was violation of Section 39 & 66/192A of the M.V Act . It is next pleaded that victim injured in this case died on 17/5/1997 but there was no evidence that cause of death was injuries suffered by him in this accident. With these pleas respondent sought to contest this claim. Almost identical plea was taken by respondents 2 & 3 in their common written statement. It is pleaded that auto rickshaw was being driven in a very high speed and vehicle Ambassador car was not at all involved in this accident.
4. While putting this claim petition on trial on issues framed on 11/10/2004, matter came up for consideration for interim no fault award. It came to be :4: observed that since there was no postmortem report of victim deceased Chander Bhan it was difficult at that stage to take a view if death was because of injuries suffered in this accident and accordingly interim no fault award was not given in claimants favour. Following issues were framed,
1. If victim Chander Bhan died due to injuries suffered on 3/5/1997 on account of negligence on the part of driver of Ambassador car DLICF2209?
2. What compensation the claimants were entitled and from whom?
5. Evidence examined from claimants side in this petition comprised affidavit evidence of claimants Smt.Krishna Devi which she tendered by her statement recorded on 16/11/2005, CW2 was a witness from COD Delhi Cantt and he proved salary of the victim deceased and further deposed that as per their record the date of birth of the victim was 1.7.1939. That brings age of victim deceased at 58 years less two months on the date of the accident.
6. Respondent ASI Rampal examined himself by filing his affidavit evidence Ex.RW1/A. Another witness examined from respondents side is a clerk from Jeevan Nursing Home who deposed from the record of the hospital that patient Chander Bhan was admitted in Jeevan Nursing Home on 16/5/1997 and he proved that medical paper as Ex.RW2/A. Third witness examined by respondent s was a clerk from RML hospital. This witness has brought MLC of the victim Chander Bhan and he proved and exhibited those medical reports Ex.RW3/A1 a4 and with that respondent evidence also stood concluded and closed. I today heard counsel Sh. Rajesh Jindal for the claimant and respondent No.1 in person and on conclusion of arguments ld counsel Sh.Dhiraj Singh also appeared on behalf of respondent No.2 & 3 and made his submissions. Findings on issues :5: are as follows:
7. Claimants placed on record certified copy of the charge sheet wherein respondent ASI Ram Pal Singh was tried for offences U/s 336 & 337 & 338 IPC in a criminal case registered as FIR 136/97, police station Chanakyapuri, New Delhi. No eye witness of this accident has been examined in this claim petition. Issue is sought to be held in favour of claimants on the basis of the charge sheet filed by the police against respondent No.1. I have considered submissions from both sides. Ld respondent counsel submitted that respondent No.1 in his affidavit evidence has specifically deposed that autorickshaw wherein victim deceased was travelling was being driven by its driver Chander Kishore Shukla in a very high speed and in a very negligent manner and that auto rickshaw over turned because of its rash and negligent driving and hit against the vehicle of the respondent. He further deposed that accident was entirely on account of fault and negligence on the part of TSR driver. In cross examination witness admitted that police had registered a criminal case against him and that was pending trial. He however refuted suggestion if accident in this case was because of his negligence. This is the evidence and material wherein the issue is to be decided.
8. It has been contented from respondents side that even as per police charge sheet the Ambassador car was in the extreme left side of the road and the road S.P.Marg was a wide enough for TSR vehicle to pass over that Ambassador car without being involved in any such accident had it been little alertness on the part of the driver of the auto rickshaw. Counsel submitted that even if claimants case as appearing from charge sheet was accepted there was :6: no evidence as to what extent the respondent driver had opened the driver side door of his car. If auto rickshaw was in such a close proximity to the Ambassador car while overtaking that stationery vehicle and the fact that a little impact to auto rickshaw by the door of the Ambassador car resulted in overturning of the auto rickshaw that reflected high speed in which auto rickshaw might be driven. Counsel argued that it was a case where auto rickshaw driver also contributed in this accident by his fault and negligent driving. Counsel submitted that if it was a case of composite negligence of two vehicles then non joining of the auto driver in this claim petition was a serious illegality in this petition and respondents should not be deprived of their right to get their liability apportioned strictly to the extent of fault or negligence on the part of respondent No.1. Claimant counsel submitted that where respondent No.1 was prosecuted by the police and where in fact criminal case had been registered on the statement of the auto driver himself then there was no flaw or illegality in this claim petition in not joining the auto driver as one of the respondents. I have considered these submissions.
9. Though no eye witness has been examined in this claim petition but then standard whereby the issue of fault and negligence is to be seen and examined is not as strict as is expected in a criminal prosecution. Claimants in a MACT petition may rely upon material where from reasonable inference of fault and negligence could be drawn against respondent driver. Admittedly in the present case respondent No.1 was chargesheeted by the police. His own plea in the written statement is that auto driver ought to have been careful and cautious while overtaking the stationery vehicle of the respondent by keeping a safe :7: distance. Here comes the proposition of law that even if two vehicles are involved by their composite negligence and if claimants legal heirs of a victim of such composite negligence of two vehicles seek to prosecute their claim only against one vehicle, can it be possible for court to apportion liability against driver, owner and insurer of one such vehicle. The answer is negative and in this regard we may rely upon Madhya Pradesh High Court judgment in Sandhya & Ors Vs Ganshyam Singh & Ors 2010 ACJ 1679 wherein while relying upon a full court judgment reported as 2005 ACJ 831. It came to be held as under:
''A Full Bench of this court in the case of Sushila Bhadoriya V. M.P. State Road Trans. Corpn., 2005 ACJ 831 (MP), has held that it is the choice of the claimant to implead as respondents the owner, driver and insurance company of both the vehicles or any one vehicle in the case of joint tortfeasors and held as under:
''(i) Owner, driver and insurer of one of the vehicles can be sued and it is not necessary to sue owner, driver and insurer of both the vehicles. The claimant may implead the owner, driver and insurer of both the vehicles or anyone of them.
(ii)There cannot be apportionment of the liability of joint tortfeasors are impleaded as party and if there is sufficient material on record, then the question of apportionment can be considered by the Claims Tribunal. However, on general principles of law, there is no necessity to apportion the inter se liability of joint tortfeasors.''
10. We may refer to another Madhya Pradesh High Court judgment reported as Gajanand & Ors Vs Virender Singh & Ors 2010 ACJ 145 on this very proposition of law.
11. Where Ambassador car of the respondents was parked and stationery on the left side of the road then opening of its driver side door by the driver of the car must have been ensured that there was no vehicle or any person in the close :8: proximity of the car which may result in any such kind of an accident as has occurred in this case. It was thus negligence on the part of respondent No.1. Going in to the aspect of composite negligence on the part of driver of the auto rickshaw will be of a little use when auto rickshaw driver owner are not a respondent party in this petition. In light of the law referred to above claimants are entitled to prosecute claim against one of two vehicles involved in accident by their composite negligence. Accordingly the issue is to be held in favour of claimants.
12. Another point argued from respondents side was that accident occurred on 3/5/1997 but then victim died on 17/5/1997 and cause of death has been observed as Cardiogenic shock and septicemic shock. Claimants examined a doctor as PW3 on 30/3/2011. Dr. Ved Vrat stated on the basis of the MLC of the victim and on the basis of medical reports from Jeevan Nursing Home that Septicemia was a toxic and septic material in the body which could be the cause of death. Testimony of the doctor thereby suggested that if cause of death was septicemic shock and death was in a close proximity of time since injuries suffered by the victim in accident then the death of the victim could be found reasonably relatable to the injuries suffered in this accident. It is a matter of record that Dr.Ved Vrat has not been cross examined on behalf of the respondents to seek any clarification that septicemic shock could not have been possible at all from the injuries recorded in the MLC of the victim. Issue is decided in claimants favour.
Then comes the assessment of compensation.
13. It is pleaded in the claim petition that deceased was 55 years of age and :9: was employed with COD Delhi Cantt. PW2 proved the salary certificate as Ex.CW2/1 of victim Chander Bhan and that indicates salary at Rs.3571/ for the month of April 1997. This witness PW2 deposed from record that date of birth of Chander Bhan was 1/7/1939 where from victim deceased is to be taken 58 years of age. Accepting the earnings of deceased on the basis of the salary certificate at Rs.3600/ taking amountRs.3571/ to round figure and after rd deducting 1/3 towards personal expenses of the victim deceased, dependency loss comes to Rs.2,400/ per month. Multiplier of 9 gets applicable for the age group in which victim deceased was. Compensation under this head works out to Rs.2,59,200/.
14. Claimants asked for a compensation for Rs.42,000/ towards medical expenses. Original bills towards these medical expenses brought on record in the affidavit evidence of claimant No.1 are the bills issued by blood bank Pusa Road Delhi and these bills are Ex.CW1/D1 for Rs.2,595/, bill Ex.CW1/D2 for Rs.1,730/, bill Ex.CW1/D3 for Rs.170/, bill Ex.CW1/D4 for Rs.255/, bill Ex.CW1/D5 for Rs.170/ and finally bill Ex.CW1/D6 for Rs.1,730/. Total amount comes to Rs.6,650/. Other medical bills are photocopies. Claimant Smt.Krishna Devi in her affidavit evidence stated at para 4 and to quote those lines.
''I do not reimburse the bills on which original are not available from the department of my husband where he was working'' This statement of the claimant no where clarifies if the medical bills photocopies where off have been filed were got reimbursed from the department. In the absence of original medical bills brought on record an inference can be drawn :10: that those medical bills might have been got reimbursed from the department in accordance with entitlement of victim deceased under the service rules. Accordingly those medical bills in the form of photocopy bills cannot be allowed in claimants favour. Claimants also asked for compensation for transportation which had to be arranged for taking victim to hospitals. Above stated amount of Rs.6,650/ can be taken to Rs.7,000/ by taking in to consideration the transportation expenses incurred by the claimants in the year 1997. A sum of Rs.2,000/ is awarded towards funeral expenses. A sum of Rs.5,000/ towards loss of consortium for claimants No.1 and a sum of Rs.5,000/ towards loss of estate is further awarded in claimants favour. Total compensation thereby works out to Rs.2,76,200/ and it can be taken to a round figure of 2,76,000/.
15. Then comes the grant of interest on this compensation amount. Claimant Smt. Krishna Devi examined herself by her affidavit only in the month of November 2005 and finally Dr.Ved Vrat PW3 has been examined in March 2011. Accident had occurred in May 1997 and the claim petition was filed in December 2001. In all such circumstances I find interest at 7% on the award amount where is to be granted but it be restricted to a period of 7 years in all.
16. Accordingly award in the sum of Rs.2,76,000/ is passed in claimants favour with interest at 7 % for a period of 7 years. All the respondents in this claim petition are held liable jointly and severally. Let a copy of this award be sent to the concerned department of traffic police Delhi as well to respondent No.3 to direct the respondents to make compliance of this award by depositing the award amount within a month failing the court may go for a penal cost if execution is required to be taken up by the claimants.
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17. Apportionment of award amount be made after hearing claimants.
Announced in the Open (J.R.ARYAN)
court on 13/10/2011. ADDITIONAL SESSIONS JUDGE (01)
NEW DELHI DISTRICT, NEW DELHI.
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NEW MACT No. 05/11
OLD No.208/01
Smt.Krishna Devi Vs. Rampal Singh ASI
13/10/2011
Present: Sh.Rajesh Jindal, counsel for claimant.
Sh.Dheeraj Singh, counsel for Govt. Respondent ASI Rampal in person.
Arguments heard from both side. Vide separate judgment/award passed in favour of the claimants. Let insurance company to pay this th award amount within a month. File be put up on 24 October 2011 for the apportionment of the award and further directions and file then shall be put up on 22/11/2011 for compliance.
ASJ/New Delhi 13.10.2011