Delhi District Court
Lucie Nayak vs . Ram Prakash on 17 August, 2013
Lucie Nayak Vs. Ram Prakash
IN THE COURT OF SHRI SANJIV JAIN PRESIDING OFFICER : MACT02
SOUTH DISTRICT : SAKET COURTS : NEW DELHI
In Petition No. 347/10
Unique Case ID : 02403C0035892010
1. Ms. Lucie Nayak @ Vidya
D/o of Late Anand Nayak ....... Daughter
2. Mr. Jeremie Nayak @ Siddhartha
S/o Late Anand Nayak ....... Son
Both R/o Impasse Beausejour 29,
CH1762, Givisiez, Suisse
3. Master Mael Dupraz (Swiss name)
or Mael Nayak (French name) ....... Son
Petitioner no. 3 being minor is represented through
natural guardian his mother Nicole Dupraz
Both R/o CHEMIN DES ROCHES 15,
CH 1700 FRIBOURG, SUISSE
...... Petitioners
Versus
1. Ram Prakash
S/o Sh. Jagmohan
R/o H. No. 280, Gali No.6,
Kaushik Transport, Shiv Puri,
Ghaziabad, U.P. ....... Driver of Truck
2. Sanju Maheshwari
W/o Sh. Om Prakash
R/o H. No. 1366, Jaipuria Mohalla,
Nassirabad, Distt. Ajmer,
Rajasthan ....... Owner of Truck
Suit No. 347/10 Page No.1/30
Lucie Nayak Vs. Ram Prakash
3. HDFC ERGO General Insurance Co. Ltd.
Ground Floor, Amandeep Building
14, Kasturba Gandhi Marg,
New Delhi ....... Insurer of Truck
4. Tribhuwan Shah
S/o Sh. Bideshwari Shah
R/o 60C, C/o Rajender,
Sarita Vihar, New Delhi ....... Driver of TSR
5. Jyoti Parkash
S/o Sh. Vikdram Singh
R/o C73, Jaitpur Ext. ....... Owner of TSR
6. United India Insurance Co. Ltd.
909A/1st Floor, Govind Puri,
Kalkaji, New Delhi - 110 019 ....... Insurer of TSR
......Respondents
Date of Institution : 30.01.2010
Date of reserving of judgment/order : 22.07.2013
Date of pronouncement : 17.08.2013
J U D G M E N T :
1. Ms. Lucie Nayak @ Vidya & Others being the legal heirs of the deceased Anand Nayak filed a petition U/s 166 & 140 of the Motor Vehicles Act against the respondents Ram Parkash & Others for claiming compensation of Rs. 5,00,00,000/ for untimely death of Anand Nayak in an accident on 04.09.09 at about 3.15 AM at IIT Gate Flyover, Opp. Police Colony, Hauz Khas, New Delhi. Suit No. 347/10 Page No.2/30
Lucie Nayak Vs. Ram Prakash
2. Briefly, the facts are that on the aforesaid date and time, the deceased was travelling in a TSR bearing no. DL 1K 2506 and was going on outer Ring Road. A Truck Trailer bearing no. HR 47 A 0986 loaded with heavy weight iron rods without any indicator on them was going ahead of the TSR. When the TSR reached IIT Gate Flyover, near Police Colony, the TSR driver i.e. respondent no.4 gave horn to the truck driver for giving side for going ahead. The truck driver i.e. respondent no.1 firstly, gave the side to the TSR but suddenly took a sharp turn unexpectedly towards right as a result, the respondent no.1 had to stop his TSR but the iron rods which were hanging 810 ft. out from the back side of the truck (Dala) rammed into the TSR from the left side of the TSR and hit the deceased sitting in the TSR. The deceased was removed to AIIMS Trauma Centre by the driver of the TSR. A case was registered at the police station Hauz Khas vide FIR U/s 279/337/304A IPC. During treatment he expired. His postmortem was conducted. The doctor opined the cause of death as Hyporalemic shock as a result of trauma to abdominal and thesaic organs which could be possible in road traffic accident. He was 67 years of age. He was survived by his daughter and two sons who were unmarried and financially dependent on him. He was Professor with Fribourg Switzerland University and used to get 13902,20 CHF per month (equal to Rs. 6,41,197.26). It was alleged that the accident had occurred due to the negligence of the drivers of the truck and the TSR as they were driving their vehicles without taking care of traffic rules Suit No. 347/10 Page No.3/30 Lucie Nayak Vs. Ram Prakash and in a rash and negligent manner.
The petitioner no. 3 was born on 24.10.2000 in Fribourg, Switzerland within the relations of the deceased (French citizen) and Nicole Dupraz (Swiss Citizen). However, he was not married to Nicole Dupraz. According to the Swiss law, he bore his mother's name Dupraz. Respondent no.2 was the owner of the truck and it was insured with respondent no.3. Respondent no.5 was the owner of the TSR and it was insured with respondent no.6.
3. An Accident Information Report was also filed by the SHO of the police station Hauz Khas and vide order dated 30.01.10 it was clubbed with the claim petition.
4. Notice of the petition was given to the respondents.
5. Respondent no.2 did not contest the petition and was proceeded Ex parte vide order dated 16.08.2010. Except the respondent no.5, other respondents contested the petition and filed their written statements.
6. Respondent no.1 denied that he was negligent or the accident had occurred due to his rash and negligent driving. He stated that his truck was falsely involved. It was at a normal speed at the time of accident. He however, stated that his vehicle was insured with respondent no.3.
Respondent no.3 in its written statement also denied its liability Suit No. 347/10 Page No.4/30 Lucie Nayak Vs. Ram Prakash and alleged that the petitioners are not the legal heirs of the deceased nor were financially dependent on him. The respondent no.1 was not holding an effective driving licence as on the date of accident, nor was qualified to hold the same. Petitioner no.3 is not the legal heir of the deceased. It also denied the averments made in the petition and alleged that the petitioners are not entitled to any amount as claimed in the petition.
7. Respondent no.4 alleged that the accident had taken place due to rash and negligent driving on the part of the Truck Trailer driver which was going ahead of the TSR loaded with lengthy iron rods which were out leaping the truck without any indication on it. At IIT Flyover near police colony, he blew horn seeking side for going ahead. The truck firstly gave him the side but all of a sudden took a sharp turn towards the right side and applied sudden brakes as a result of which he stopped his TSR but in that process iron rods which were leaping 810 ft. out from the back side of the truck rammed into the TSR from the left side and hit the passenger travelling in it. He alleged that the police lodged a false and frivolous case against him.
8. Respondent no.6 alleged that the respondent no.1 did not possess a valid driving licence for the class of vehicle at the time of accident. As per clause 3(b) of general exceptions mentioned in commercial vehicles package policy, the company is not liable in respect of the Suit No. 347/10 Page No.5/30 Lucie Nayak Vs. Ram Prakash vehicle being driven by or his for the purpose of being driven by him/her in charge of any person other than a driver as stated in the driver's clause. It stated that the TSR bearing no. DL 1K 2506 was never insured with it in the name of respondent no.5.
9. Respondent no.5 did not file its written statement.
10. From the pleadings of the parties, following issues were framed vide order dated 28.07.2011 :
1. Whether the deceased Anand Nayak succumbed to the injuries sustained in road accident on 04.09.2009 at about 3.15 AM at IIT Gate Flyover, opp. Police Colony, Hauz Khas, New Delhi while travelling in TSR DL 1R K 2506 by R4, owned by R5 and insured with R6 due to rash and negligent driving of the vehicle i.e. truck bearing no. HR 47 A 0986 by its driver R1, owned by R2 and insured with R3/insurance company?
2. To what amount of compensation, the petitioners are entitled to and from whom?
3. Relief.
11. To substantiate their claim the petitioners examined Sh. Santiagu Xavier as their attorney as PW1, Sh. Rajeev Sonkar, the eyewitness as PW2. Respondent no.6 examined its Dy. Manager Sh. Jagdish Narang as R6W1. Other respondents did not examine any witness. During the course of arguments the respondent no.3 filed the certified copy of the charge sheet of the case registered vide above FIR. Suit No. 347/10 Page No.6/30
Lucie Nayak Vs. Ram Prakash
12. I have heard the arguments advanced by Ld. counsel Sh. Gaurav Sood for the petitioners, Sh. Ganesh Pandey and Sh. M P Shahi for the respondent no.3, Ms. Parmita Kaur for respondent no.6 and respondent no.4 in person. The respondent no.3 also filed its written submissions.
13. It was submitted by the counsel for the petitioners that the deceased was travelling in a TSR. At outer ring road, IIT Gate Flyover when the TSR was trying to cross a truck which was loaded with iron bars hanging 810 ft. out, all of a sudden the truck driver took a sharp turn towards right as a result of which the TSR driver had to stop the TSR but the iron rods rammed into the TSR from the left side and hit the deceased resulting injuries on his person which ultimately proved fatal. Ld. counsel stated that the police registered the case against the drivers of both the vehicles i.e. respondent no. 1 and 4 for their rash and negligent driving. Ld. counsel stated that the deceased was a Professor and used to earn 12224,95 CHF which were equal to Rs. 5,63,717/. He was survived by his two sons and a daughter who were unmarried and financially dependent on him. He was 67 years of age. The eyewitness has fully supported the case of the petitioners.
14. Ld. counsel for respondent no.6 stated that it is a case of fake policy in the name of respondent no.5 in respect of the TSR which fact has been proved by R6W1 and therefore, respondent no.6 does not owe Suit No. 347/10 Page No.7/30 Lucie Nayak Vs. Ram Prakash any liability towards the insured of the TSR i.e. respondent no.5.
15. Ld. counsel for the respondent no.3 in its written submissions stated that the petitioners did not examine the eyewitness Parveen Kumar at whose instance the case was registered. PW2 is the stock witness of the petitioners. The accident had occurred solely due to the negligence of the TSR driver who hit the TSR on the back side of the truck. He placed reliance on the case Manu B Mehta Vs. Bal Krishna Ram Chandra Nayan 1977 ACJ 118. He also relied on the doctrine of resipsa loquitur. He submitted that the TSR driver was also arrested by the police and he was not holding a valid driving licence as is apparent from the Accident Information Report and the Charge sheet. He did not maintain a reasonable distance in order to avoid collision. He was not going on the left side of the lane which was earmarked for the commercial vehicle. The site plan shows that the Truck was on the extreme left side. He also relied on the case Raj Rani & Ors.Vs. OIC 2009 ACJ 2003 (SC), Mrs. Updesh Kaur & Ors. Vs. Jag Ram & Ors. III (2004) ACC 106 (Delhi High Court), Renuka Devi Vs. Bangalore Metropolitan Transport Corporation 2008 ACJ 1188 (SC) and Managing Director Tamilnadu State Transport Corporation Vs. Amudha Siva Prakasam 2012 ACJ 393 to contend that the liability, if any of the respondent no. 3 is 50% out of the amount being the case of composite negligence.
Ld. counsel further submitted that in the instant case none of the Suit No. 347/10 Page No.8/30 Lucie Nayak Vs. Ram Prakash petitioners appeared in the witness box. Petitioner no.1 and 2 have jointly executed Power of Attorney in favour of PW1, a Catholic priest and petitioner no.3 minor also executed Special Power Of Attorney through her mother Nicole Dupraz who was not the wife of the deceased. Ld. counsel placed reliance on the case Vidhyadhar Vs. Mannik Rao (1993) 3 SCC 573 to contend that if a party abstain from entering into the witness box, an adverse inference could taken against him since he does not offer himself for crossexamination by the other side. Ld. counsel also quoted the judgment of Smt. S Padmavathamma Vs. Sudha Rani AIR 2004 Andhra Pradesh 309 to contend that general power of attorney holder can appear as a witness in his personal capacity but he cannot appear as a witness on behalf of plaintiff in the capacity of plaintiff as he cannot speak the facts which are within personal knowledge of the parties. Ld. counsel also referred the case of Ram Parsad Vs. Hari Narain AIR 1998 Rajasthan 185 and the provisions of Order 3 Rule e(2) of CPC and section 118 of the Indian Evidence Act. Ld. counsel submitted that the petitioners no.1 and 2 are major and highly qualified and in advance countries such as Switzerland they cannot be considered as dependents.
16. I have considered the submissions and perused the entire evidence on record. My findings on the issues are as follows :
I S S U E N O. 1
17. It is well settled law that where petition under Section 166 of the Act is Suit No. 347/10 Page No.9/30 Lucie Nayak Vs. Ram Prakash instituted, it becomes the duty of the petitioner to establish rash and negligent driving. To prove rash and negligent driving in a petition under Motor Vehicles Act, Tribunal need not go into the technicality because strict rules of procedure and evidence are not followed. Basically, in road accident cases, Tribunal has simply to quantify the compensation which is just rational and reasonable on the basis of enquiry. The proceedings under Motor Vehicles Act are not akin to the proceedings in a civil suit. Further, roving enquiry is not required to prove the rashness and negligence on the part of the driver as has been held in Kaushumma Begum and others Vs New India Assurance Co. Ltd. 2001 ACJ 421 SC.
18. PW2 has stated that on 04.09.02009 at about 3.15 AM he was coming on his motorcycle from Greater Kailash via outer Ring Road and was going towards Rohini. When he was in the process of going to IIT flyover, he saw a truck trailer bearing no. HR 47 A 0986 full of iron rods going on the flyover. A TSR was also moving and trying to get a side and was giving horn continuously. While giving side to the TSR, the truck driver took a sudden right turn and applied brakes. Similarly, the TSR driver also had to apply brakes to slow the TSR to avoid the accident but the iron rods which were hanging 810 ft. out from the back side of the truck without any indication or light on it rammed into the TSR from the left side of the TSR and hit the passenger sitting inside the TSR who received serious injuries. The TSR driver called Suit No. 347/10 Page No.10/30 Lucie Nayak Vs. Ram Prakash the PCR and he had helped the TSR driver to take the passenger to AIIMS Trauma Centre. He stated that the accident had occurred due to the negligence of the driver of the truck which was containing load of iron rods hanging outside the truck without any indication on it. He admitted that he did not know the deceased personally. The truck was on the middle of the road. The TSR was just behind the truck. He denied that from the place he could not see the accident. He admitted that road lights were lighting brightly on the road. His testimony remained unrebutted qua respondent no.1, the driver of the truck.
Nothing can be inferred from his testimony that he is a stock witness/interested witness. He has stated that he did not know the deceased personally. That being the position, his testimony is worthy of credence. In the instant case, with the Accident Information Report the copy of the FIR was filed. The respondent no.2 also filed the certified copy of the Charge Sheet which contains the FIR, site plan, postmortem report and the mechanical inspection report of both the vehicles.
On its perusal, I find that when the police party reached the spot on receipt of information, it did not meet any eyewitness. The doctor at AIIMS had declared the passenger / injured unfit for statement. It inspected the vehicles and found the blood marks on the TSR. He seized both the vehicles and got them mechanically inspected. It contacted the eyewitness Parveen Kumar and recorded his statement. He had stated that on 04.09.09 he was going to Dhaula Kuan from Suit No. 347/10 Page No.11/30 Lucie Nayak Vs. Ram Prakash Hauz Khas. At about 3.30 AM at IIT flyover, a TSR was going ahead of his car. A truck loaded with iron bars was ahead of the TSR. It was moving slowly because of heavy weight and elevation. The TSR was going at a fast speed. The TSR driver in order to save the TSR from the truck took the turn at a fast speed. The iron rods which were hanging out from the truck rammed into the chest of the passenger sitting in the TSR. However, the TSR driver jumped out of the TSR. He stopped his car and removed the injured from the TSR, called the police. The truck driver seeing the blood went away with the truck.
19. The record reveals that the truck driver was called after giving notice U/s 133 MV Act to its registered owner. Finding the negligence of both the drivers of the truck and the TSR, both of them were arrested and charge sheet was filed against both of them. The mechanical inspection report shows fresh damages on the left front side of the TSR. The truck was road worthy.
20. Ld. counsel for the respondent no.3 has stated that the truck was on the extreme left side of the road but the site plan placed with the charge sheet is contrary to this fact rather it supports the version of PW2 who has stated that the truck was on the middle of the road when it was hit by the TSR. The accident took place at point "A" as shown in the site plan. On considering the statement of Parveen Kumar, given to the police, testimony of PW2, site plan and other Suit No. 347/10 Page No.12/30 Lucie Nayak Vs. Ram Prakash documents and applying the doctrine of resipsa loquitur I find that it is a case of composite negligence in the proportion of 70:30 viz truck driver and TSR driver. It is because of the fact that the iron rods were hanging 810 ft. out from the Daala without any indication or signal on it; the truck was moving on the centre of the road though it should be on the extreme left as per the guidelines laid down in the case of M C Mehta Vs. Union of India (1997) 8 SCC 770; when the TSR was trying to cross/overtake the truck, the truck driver all of a sudden took the truck towards right and applied brakes; the TSR driver in order to stop the TSR also applied brakes but the rods hanging outside rammed into the deceased; the TSR driver was trying to cross the truck seeing that the bars were hanging out from the truck; he did not maintain reasonable distance nor anticipated the fact that the truck could move towards right; he applied sudden brakes but the bars hanging rammed into the left of the TSR and the passengers sitting thereon.
Facts and circumstances show that the TSR was also moving at a high speed without maintaining a reasonable distance and space from the truck. It had hit the truck from behind. 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. Keeping these facts into consideration, nonexamination of Suit No. 347/10 Page No.13/30 Lucie Nayak Vs. Ram Prakash Parveen is not fatal to the case of the petitioners.
21. From the abovesaid discussions, it has been established that the deceased Anand Nayak succumbed to the injuries sustained in the road accident at IIT Gate Flyover, opposite Police Colony Hauz Khas due to rash and negligent driving of the truck driver i.e. respondent no.1 and TSR driver i.e. respondent no.4 in the proportion of 70:30. Record shows that the truck was owned by the respondent no.2 and it was insured with respondent no.3. The TSR was owned by the respondent no.5.
22. It was submitted by Ld. counsel for respondent no.6 that the TSR was not insured with it. In support of her contention, she relied on the testimony of R6W1. He has stated that the cover note collected by the police from the TSR driver/owner is a fake document and was not issued from the company. The logo of the company was misused on the cover note and further the company did not have any office as mentioned in the cover note. He also placed on record the specimen copy of the cover note bearing the name of the company as well as registered office address Ex.R6W1/1. He stated that the action has been taken by the company and the matter is subjudice. Despite opportunity given respondent no.4 did not crossexamine him. It is thus proved that the policy in respect of the TSR was fake and the vehicle was not insured with the respondent no.6 at the time of accident.
Suit No. 347/10 Page No.14/30
Lucie Nayak Vs. Ram Prakash
23. Issue no.1 is accordingly, decided in favour of the petitioners and against the respondents.
I S S U E No. 2
24. The present petition has been filed by the petitioners Ms. Lucie Nayak @ Vidya, Jeremie Nayak @ Siddhartha in their personal capacity and Master Mael Dupraz (Swiss name) @ Mael Nayak (French name) through his mother Nicole Dupraz. Petitioner no.1 and 2 are the daughter and the son of the deceased Anand Nayak. It has come in the petition that the petitioner no.3 was born in Switzerland within the relations of Anand Nayak and Nicole Dupraz. The deceased had owned him his child though he was not married to his mother (Nicole Dupraz). Legally, the child whether legitimate or illegitimate would be considered as the legal heir of his biological father. There is no dispute about the fact that all the three petitioners were born from their biological father i.e. the deceased Anand Nayak. They being the legal heirs are entitled to claim compensation for untimely death of Anand Nayak in the accident.
25. Though the petition discloses that the petitioner no.1 was doing Doctorate in two Universities of France and Switzerland and petitioner no.2 was doing Pharmacy from the University at Switzerland but it has come on record that they were financially dependent on the deceased as he used to spend his entire earnings on them. No evidence contrary to this fact has been led by the respondent no.3. Suit No. 347/10 Page No.15/30
Lucie Nayak Vs. Ram Prakash
26. In the instant case, beside petition an Accident Information Report was filed by the SHO of the police station Hauz Khas which vide order dated 30.01.10 was clubbed with the claim petition. Alongwith the petition, the petitioners have filed their copy of Passport duly notarised showing their relations with the deceased. The income proof of the deceased has also been filed showing the total salary of the deceased in August, 2009 as 13,902,20 Swiss Francs with deductions of 1677,25 Swiss Francs towards various insurance with net salary as 12224,95 Swiss Francs. BioData of the deceased has also been placed which was loaded from the Internet. PW1 has been given Special Power of Attorney by the petitioners. He has stated that the deceased was 67 years of age who died in the road accident which occurred on 04.09.09. This fact is also mentioned in the Accident Information Report and the Charge Sheet. He has further stated that the deceased was a Professor in Fribourg Switzerland University and had been earning 13902,20 Swiss Francs which fact is also evident from the documents which have been notarised. He has further stated that the petitioners are the daughter and sons of the deceased which fact is also evident from the documents placed with the petition. He did not state any fact which was not in his personal knowledge or of which the Court cannot take judicial notice. In his crossexamination, he has given the reasons as to why the petitioners could not come in India for evidence. He has stated that the petitioners are the students and due to financial constraints they could not come. He has stated that he had Suit No. 347/10 Page No.16/30 Lucie Nayak Vs. Ram Prakash arranged the dead body of the deceased to be sent to Switzerland.
27. In the instant case PW1 has deposed the facts which are general and supported with the documents. In the case of Janki Vashdeo Bhojwani Vs. Indusind Bank Ltd. AIR 2005 SC 439 it was held that if power of attorney holder has rendered some acts in pursuance to power of attorney, he may depose for the principal in respect of such acts but he cannot depose for the principal for the acts done by the principal and not by him. In the instant case the petitioners / principals are the beneficiaries only. Further, the deposition by PW1 was only in respect of the facts which are supported with documents.
28. In the case of Saramma Scaria Vs. Mathai 2003 ACJ 213, the Kerala High Court observed that Motor Accident Claim Tribunals are constituted under the Act so as to advance speedy remedy to the injured as well as the legal heirs of the deceased. Claimants are not seeking any charity but their legitimate right to get justice and adequate compensation for the tragedy befallen on them not due to their fault but due to the negligence of the other side. The Tribunal is bound to mitigate the hardship to save the family from penury. In the case of N K V Bros. (P) Ltd. Vs. M Karumai Ammal AIR 1980 SC 1354, the Supreme Court has held that the Accident 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 and Suit No. 347/10 Page No.17/30 Lucie Nayak Vs. Ram Prakash some obscurity there. The Court should not succumb to niceties, technicalities and mistique maybes.
29. It is well settled law that the proceedings in the MACT claim are the enquiry proceedings and strict rule of evidence is not followed like in normal civil suits. Till June, 2009, the victims of road accident were not given compensation without filing a claim petition before the Tribunal even if, the vehicle was validly insured.
Various legitimate changes and judicial decisions of various courts have created procedures and principles to deal with the range of issues relating to Motor Accident Claims. Section 158 (6) was incorporated by an amendment in the Motor Vehicles Act in 1994 which provides that the SHO shall submit an Accident Information Report to the Motor Accident Claim Tribunals within 30 days of the accident and the claim Tribunal shall treat the said report as a claim petition and conduct an enquiry into the same. On 13.07.09 the Govt. of NCT of Delhi also notified the Delhi Motor Accident Claim Tribunal Rules, 2008. An agreed procedure was deviced vide which the insurance companies were required to computate the compensation within 30 days thereafter, and inform the Tribunal. If the offer is not acceptable or Tribunal finds it not fare it shall decide within 30 days. It is to be mentioned that the compensation is calculated by the insurer on the basis of the information contained in the information report submitted by the SHO and the claimants are not required to lead evidence. Suit No. 347/10 Page No.18/30
Lucie Nayak Vs. Ram Prakash
30. For the reasons, stated above, I am of the view that petitioners are entitled to compensation in view of the information supplied by the SHO in the Accident Information Report and the documents placed on record. PW1 in the enquiry proceedings has stated certain facts which are supported with the documents. That being the position, the information given by him in his testimony can be taken into consideration for deciding the claim of the petitioners.
31. As issue no. 1 is decided in favour of the petitioners in affirmative, petitioners thus become entitled for the compensation. Quantum of the compensation however is required to be calculated.
32. 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 Suit No. 347/10 Page No.19/30 Lucie Nayak Vs. Ram Prakash Hon'ble Supreme Court in plethora of judgments has laid down that in India, the multiplier method is proper for calculation of compensation.
33. In order to calculate the amount of compensation, the sum is required to be considered under the various heads :
LOSS OF DEPENDENCY
34. From the documents placed on record and the testimony of PW1, I find that the deceased was 67 years of age at the time of accident. He was a Professor at Fribourg Switzerland Univeristy. He was survived by his two sons and one daughter who were unmarried and dependent on the deceased. No evidence contrary to this fact has been brought on record by the respondents. PW1 was highly educated and used to earn 13902,20 Swiss Francs per month as evident from his salary statement Ex.PW1/3. On 12.11.2009 1.00 CHF was equivalent to 46.1220 INR. His net monthly salary comes to CHF 1,66,826.40 (13902,20 x 12). Multiplying with the conversion rate, the annual salary in Indian currency comes to Rs. 76,94,367.22. Following the income tax slab prevalent in India, the income tax on this income comes to Rs. 23,76,342/. The net salary of the deceased after deducting income tax comes to Rs. 53,18,025/. The deceased was survived by his two sons and one daughter. As per law laid down in the case of Sarla Verma Vs. DTC 2009 (6) Scale 129, onethird is required to be deducted towards personal and living expenses. After deducting one Suit No. 347/10 Page No.20/30 Lucie Nayak Vs. Ram Prakash third, the net income for calculating the loss of dependency comes to Rs. 35,45,350/. The deceased was 67 years of age. It was held in the case of Sarla Verma Vs. DTC 2009 (6) Scale 129 that while calculating the dependency, the multiplier is to be applied with reference to the age of the deceased since he was married. Hence, a multiplier of '5' is taken for calculating the loss of dependency. Using multiplier of '5', the total loss of dependency comes to Rs. 35,45,350 x 5 = 1,77,26,750/. I therefore, award Rs. 1,77,26,750/ to the petitioners towards loss of dependency.
LOVE AND AFFECTION
35. Petitioners at this stage of their life have lost their father. The love and care which they could have got from her cannot be measured in terms of money. I therefore, award a sum of Rs. 25,000/ to the petitioners towards "Love and Affection".
FUNERAL EXPENSES
36. It was held in the case of "Rajesh & Ors. Vs. Rajbir Singh & Ors.
2013 (6) Scale 563" that the 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 the 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 expense. It will be just, fair and equitable Suit No. 347/10 Page No.21/30 Lucie Nayak Vs. Ram Prakash 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/. Following the case law (Supra), I award a sum of Rs. 25,000/ to the petitioners towards "Funeral Expenses".
LOSS OF ESTATE
37. I award a sum of Rs. 10,000/ to the petitioners towards "Loss of Estate".
38. The total compensation in favour of the petitioners is calculated as under :
1) LOSS OF DEPENDENCY = Rs. 1,77,26,750/
2) LOSS OF LOVE AND AFFECTION = Rs. 25,000/
3) FUNERAL EXPENSES = Rs. 25,000/
4) LOSS OF ESTATE = Rs. 10,000/ ============= TOTAL = Rs. 1,77,86,750/ ============= L I A B I L I T Y
39. As the offending vehicles were being driven by respondent no.1 and 4 therefore, primary liability to compensate the petitioners remains with that of respondent no. 1 and 4. Since the vehicle was owned by respondent no. 2 and 5 respectively, so they become vicariously liable to compensate the petitioners. Since the Truck bearing no. HR 47 A 0986 was insured with respondent no. 3, so it alongwith the Suit No. 347/10 Page No.22/30 Lucie Nayak Vs. Ram Prakash respondent no.5 become contractually liable to compensate the petitioners.
40. Vide findings on the issue no.1 it has been held that it is a case of composite negligence. It was held in the case of UP State Road Transport Corporation Vs. Rajni & Ors. 2007 ACJ 1771 that :
when an accident takes place on account of composite negligence of two or more motor vehicles, the claimant is entitled to proceed against all or any of the joint tortfeasors for full compensation for the injuries suffered or death caused as the liability of joint tortfeasors is joint and several. In a case where all the joint tortfeasors have been brought on record, it is needless to say that Tribunal is under statutory duty to specify the amount which shall be paid by the driver or owner or insurer of the vehicles involved in the accident. The apportionment of liability amongst the individual joint tortfeasors has to be done by the Tribunal to the extent their negligence contributory to the damage caused to the victim of the accident. Thus, in case of insurers to the extent of their liability covered by insurance policy or under statute. The said provision, is only intended to the extent possible, to avoid multiplicity proceedings interse between the drivers, owners and insurers of the two vehicles and to the extent possible to give a finality to their liability.
It was further held that :
Such duty to apportion the individual liability of joint tortfeasors under the provision of Section 110 B of all Motor Vehicles Act and Section 168 (1) of New Motor Vehicles Act does not necessarily lead to a conclusion that the Tribunal cannot direct anyone of such joint tortfeasors to satisfy the entire award by making payment to the claimants and thereafter, realise the amount excess paid by him over and above of his liability from the other joint tortfeasors, to the extent of their liability determined by the Tribunal. Thus, in case of an accident caused by Suit No. 347/10 Page No.23/30 Lucie Nayak Vs. Ram Prakash composite negligence of two motor vehicles, where one vehicle is insured and another is not covered by valid insurance policy and both are impleaded as party and also heard, it is open to the Tribunal after specifying their respective liability to the extent of damage contributed, direct the owner or insurer of vehicle insured to pay entire amount of award to the claimants and recover the excess amount so paid over and above his or its liability from the owner or driver of the other vehicle involved in such accident.
41. In the case of T O Anthony Vs. Karvarnan & Others 2008 ACJ 1165 Hon'ble Supreme Court held that :
'Composite negligence' refers to the negligence on the part of the two or more persons. Where a person is injured as a result of negligence on the part of two or more wrong doers, it is said that the person was injured on account of composite negligence of those wrong doers. In such a case each wrong doer, is jointly and severally liable to the injured for payment of the entire damages and the insured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrong doer separately, nor is it necessary for the Court to determine extent of the liability of each wrong doer separately.
42. In the instant case the petitioners have impleaded both the tortfeasors as respondents. The abovesaid accident had been occurred due to composite negligence of the vehicles bearing no. HR 47 A 0986 i.e. truck and DL 1R K 2506 i.e. TSR. The truck is insured and the TSR is not covered by valid insurance policy. Vide issue no.1 it has been held that it is a case of composite negligence in the proportion of 70:30 of truck driver and TSR driver.
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Lucie Nayak Vs. Ram Prakash
43. Following the case law UP State Road Transport Corporation (Supra), I direct the insurer of the Truck bearing no. HR 47 A 0986 i.e. respondent no.3 to pay the entire amount of award to the petitioners and recover the excess amount (30% of the entire amount) so paid over and above its liability from the owner or driver of the TSR bearing no. DL 1R K 2506 jointly and severally.
R E L I E F
44. In view of my findings on the issues I award Rs. 1,77,86,750/ (Rs.
One Crore Seventy Seven Lacs Eighty Six Thousand Seven Hundred Fifty only) as compensation alongwith interest @ 9% per annum from the date of filing the petition till the date of its realization in favour of the petitioners and against the respondent no.3 with the liberty to the respondent no.3 to recover the excess amount (30% of the entire amount) so paid over and above its liability from the respondent no.4 and 5 i.e. driver or owner of the TSR bearing no. DL 1R K 2506 jointly and severally.
: RELEASE OF THE AWARDED AMOUNT : In the share of Petitioner no.1 and 2 : (Daughter and Son of deceased Anand Nayak)
45. A sum of Rs. 59,28,916/ each alongwith the proportionate interest thereon, is awarded to petitioner no.1 and 2 being daughter and son of deceased Anand Nayak.
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Lucie Nayak Vs. Ram Prakash
46. Out of this awarded amount, Rs. 50,00,000/ each be deposited in the form of Fixed Deposits in the name of petitioners in the following phased manner :
(a) A sum of Rs. 10,00,000/ for a period of 1 year.
(b) A sum of Rs. 10,00,000/ for a period of 2 years.
(c) A sum of Rs. 10,00,000/ for a period of 3 years.
(d) A sum of Rs. 10,00,000/ for a period of 4 years.
(e) A sum of Rs. 10,00,000/ for a period of 5 years.
In the share of Petitioner no. 3: (Minor Son of deceased Anand Nayak)
47. A sum of Rs. 59,28,918/ alongwith the proportionate interest thereon, is awarded to petitioner no. 3 being minor son of deceased Anand Nayak. Out of this awarded amount Rs. 10,00,000/ be released to Ms. Nicole Dupraz i.e. biological mother of the petitioner no.3, with the directions to spend the money for the education and welfare of the petitioner no.3 only. The remaining amount shall be kept in the form of FDR till he attains the age of 18 years.
Deposition of awarded amount :
48. 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 08.06.2009, UCO Bank/ State Bank of India has agreed to open a Special Fixed Deposit Account for the victims of road accidents.
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Lucie Nayak Vs. Ram Prakash
49. 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 Claim Tribunals 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.
50. It is stated by the counsel for the petitioners that the petitioners have an account with HDFC Bank and transfer facility is also available in the bank. In view of the submissions and 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 HDFC Bank, Saket branch, New Delhi against account of petitioners. within a period of 30 days from today, failing which the respondent no.3 shall be liable to pay future interest @ 12% per annum till realization (for the delayed period).
51. Upon the aforesaid amount being deposited, the HDFC Bank, Saket Branch, New Delhi is directed to keep the awarded amount in the "fixed deposit / saving account'' in the following manner :
(i) The interest on the fixed deposit be paid to the petitioners / claimants by Automatic Credit of interest of their saving bank accounts with HDFC Bank, Saket branch, New Delhi.
(ii) Withdrawal from the aforesaid account shall be permitted to Suit No. 347/10 Page No.27/30 Lucie Nayak Vs. Ram Prakash 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 HDFC Bank, 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, HDFC Bank, Saket Branch, New Delhi.
DIRECTIONS FOR RESPONDENT NO. 3
52. The Respondent no.3 is directed to file the compliance report of its having deposited the awarded amount with HDFC Bank, Saket Suit No. 347/10 Page No.28/30 Lucie Nayak Vs. Ram Prakash branch, New Delhi in this tribunal within a period of 30 days from today.
53. The Respondent no.3 shall intimate to the claimants / petitioners about its having deposited the cheques in favour 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.
54. Copy of this award / judgment be given to the parties.
55. Case is now fixed for compliance by the insurance company for 17.09.2013.
Announced in the open court on 17th Day of August, 2013 (SANJIV JAIN ) Presiding Officer : MACT02 South Distt. : Saket Courts New Delhi : 17.08.2013 Suit No. 347/10 Page No.29/30 Lucie Nayak Vs. Ram Prakash Lucie Nayak Vs. Ram Prakash Suit No. : 347/10 17.08.2013 Present : None.
Vide separate order of even date a compensation of Rs. 1,77,86,750/ (Rs. One Crore Seventy Seven Lacs Eighty Six Thousand Seven Hundred Fifty only) alongwith interest @ 9% p.a. from the date of filing the petition till the date of realisation of the amount is passed in favour of petitioners and against the respondent no.3 with the liberty to the respondent no.3 to recover the excess amount (30% of the entire amount) so paid over and above its liability from the respondent no.4 and 5 i.e. driver or owner of the TSR bearing no. DL 1R K 2506 jointly and severally.
Copy of the award be given to the parties.
Case is now fixed for filing compliance by insurance company for 17.09.13.
(SANJIV JAIN ) Presiding Officer : MACT02 South Distt. : Saket Courts New Delhi : 17.08.2013 Suit No. 347/10 Page No.30/30