Delhi District Court
Smt. Manju W/O Sh. Narender Rai vs Sh. Sanjay Kumar on 17 September, 2016
IN THE COURT OF MS. SANTOSH SNEHI MANN,
JUDGE, MOTOR ACCIDENT CLAIMS TRIBUNAL02, WEST DISTRICT,
TIS HAZARI COURTS, DELHI
Common Award in Petitions No. 76589/2016 & 76467/2016
I. Petition No.: 76589/2016
1. Smt. Manju W/o Sh. Narender Rai
(Mother of the deceased Late Sh. Jitender Rai)
2. Sh. Narender Rai S/o Sh. Kalka Rai
(Father of the deceased Late Sh. Jitender Rai)
Both are R/o H. No. 76, THuts, Garib Basti,
Rama Road, Delhi110015. .......... Petitioners.
Versus
1. Sh. Sanjay Kumar
S/o Sh. Hari Singh
R/o Village Pathreri,
District Gurgaon, Haryana.
Also at :
69, KM, Mile Stone,
Delhi Jaipur Highway,
Dharuhera, District Rewari, Haryana.
(Driver)
2. M/s. Omex Autos Limited
69, KM, Mile Stone,
Delhi Jaipur Highway,
Dharuhera, District Rewari, Haryana.
(Owner)
3. Reliance General Insurance Company Limited
60, Okhla Industrial Area,
PhaseIII, New Delhi110020.
(Insurer) .......... Respondents
II. Petition No.: 76467/2016
Sh. Raju S/o Sh. Hari Dutt
R/o H. No. 104, Thuts, Garib Basti,
Rama Road, Delhi110015.
(Injured) .......... Petitioner.
Common Award in Petitions No.: 76589/2016 & 76467/2016 Page No. 1 of 22
Versus
1. Sh. Sanjay Kumar
S/o Sh. Hari Singh
R/o Village Pathreri,
District Gurgaon, Haryana.
Also at :
69, KM, Mile Stone,
Delhi Jaipur Highway,
Dharuhera, District Rewari, Haryana.
(Driver)
2. M/s. Omex Autos Limited
69, KM, Mile Stone,
Delhi Jaipur Highway,
Dharuhera, District Rewari, Haryana.
(Owner)
3. Reliance General Insurance Company Limited
60, Okhla Industrial Area,
PhaseIII, New Delhi110020.
(Insurer) .......... Respondents
Claim Petition No. 76589/2016 filed on : 14.08.2014.
Claim Petition No. 76467/2016 filed on : 14.08.2014.
Arguments heard on : 01.09.2016.
Judgment pronounced on : 17.09.2016.
COMMON AWARD:
1. By this Common Award, I shall dispose of two (02) claim petitions registered vide No. 76589/2016 and 76467/2016, both filed under Section 166 & 140 of the Motor Vehicles Act, 1988 (M. V. Act), since they arise from the same vehicular accident that took place on 14.07.2014 in which Jitender Rai S/o Sh. Narender Rai had died and Raju S/o Sh. Hari Dutt was injured, with respect to which FIR No. 438/2014 under Section 279/337/338/304A/427 IPC was registered at Police Station Kankarkheda, Sadar, Meerut, UP. Petition No. 76589/2016 has been filed by the parents of the deceased Jitender Rai and Petition No. 76467/2016 has been filed by injured Raju.
2. Both the petitions were consolidated vide order dated 26.09.2014 by Ld. Common Award in Petitions No.: 76589/2016 & 76467/2016 Page No. 2 of 22 Predecessor and the petition bearing No. 76589/2016 tilted as Manju & Ors. Vs. Sanjay Kumar & Ors. was treated as leading case in which evidence has been recorded.
3. Brief facts of the vehicular accident as averred in the claim petitions are that on 14.07.2014 deceased Jitender Rai and injured Raju along with others were going to Haridwar on Tempo bearing Regn. No. HR55M5546 for bringing kanwad. At about 2.00 AM, when the tempo reached in front of Chanderika Farm House, Kankarkheda, Meerut, UP, it was hit from behind by a Truck bearing Regn. No. HR47B1917 (offending vehicle). Consequently, Jitender Rai and Raju suffered grievous injuries, who were taken to the hospital and Jitender Rai succumbed to injuries. Allegedly, the offending vehicle was driven by Sanjay Kumar (Respondent no. 1) in a rash and negligent manner. M/s. Omex Autos Limited (Respondent no. 2) is the registered owner of the offending vehicle which was insured with Reliance General Insurance Company Limited (Respondent No. 3).
4. Respondent no. 1 and 2 did not file any written statement despite being given sufficient opportunity. They absented from the proceedings and were proceeded exparte vide order dated 10.07.2015.
5. Written statement has been filed by respondent no. 3/Insurance Co. in both the cases wherein it is admitted that the offending vehicle ie., Truck bearing Regn. No. HR47B1917 was duly insured with the Insurance Co. vide Policy No. 1304542334000434 valid from 01.06.2014 to 31.05.2015, including the date of accident. However, a general defence is taken that Insurance Co. shall not be liable if the driver was not holding a valid driving licence and owner of the offending vehicle had no permit.
6. From the pleadings of the parties, contentions raised and material on record, the following issues were framed separately in both the claim petitions vide order dated 11.03.2016 :
Issues in Petition No. 76589/2016 :
1. Whether the deceased Jitender Rai suffered fatal injuries on Common Award in Petitions No.: 76589/2016 & 76467/2016 Page No. 3 of 22 14.07.2014 at about 2.00 AM in front of Chanderika Farm House, Kankarkhera, Meerut, UP, in a vehicular accident involving a Truck bearing Regn. No. HR47B1917, due to wrongful act or negligence of respondent no. 1 Sanjay Kumar, who was driving the vehicle? OPP
2. Whether the petitioner/petitioners is entitled for compensation?
If yes, what would be the amount and who would liable to pay?
3. Relief Issues in Petition No. 76467/2016:
1. Whether the petitioner Raju suffered injuries on 14.07.2014 at about 2.00 AM in front of Chanderika Farm House, Kankarkhera, Meerut, UP, in a vehicular accident involving a Truck bearing Regn. No. HR47B1917, due to wrongful act or negligence of respondent no. 1 Sanjay Kumar, who was driving the vehicle? OPP
2. Whether the petitioner is entitled for compensation? If yes, what would be the amount and who would liable to pay?
3. Relief
7. Smt. Manju, mother of the deceased Jitender Rai has been examined as PW1, who has deposed on affidavit Ex. PW1/A. She produced her voter I card as Ex. PW1/1, voter Icard of Sh. Surender Kumar (petitioner no. 2) as Ex. PW1/2 and voter Icard of deceased as Ex. PW1/3.
Injured Sh. Raju has been examined as PW2 and has deposed on affidavit Ex. PW2/A. He produced his voter Icard as Ex. PW2/1 and treatment papers & medical bills collectively as Ex. PW2/2.
Petitioners have filed the certified copies of the criminal proceedings.
8. Respondent No. 3/Insurance Co. has examined Sh. R. Ashwin Kumar, its Legal Executive as R3W1 who deposed on affidavit Ex. R3W1/A. He has filed on record the copy of notice U/o 12 Rule 8 CPC given to the respondents no. 1 and 2 as Ex. R3W1/1, postal receipts as Ex. R3W1/2 to Ex. R3W1/4 and insurance policy as Ex. R3W1/5.
9. No witness has been examined by Respondents no. 1 and 2.
Common Award in Petitions No.: 76589/2016 & 76467/2016 Page No. 4 of 22
10. I have heard Sh. Palvinder Singh, Counsel for petitioners in both the cases and Sh. A. C. Mittal, Counsel for respondent no. 3/Insurance Co. I have carefully perused the record.
11. My findings on the issues are as under:
Issue no. 1 in Petition No. 76589/2016 :
1. Whether the deceased Jitender Rai suffered fatal injuries on 14.07.2014 at about 2.00 AM in front of Chanderika Farm House, Kankarkhera, Meerut, UP, in a vehicular accident involving a Truck bearing Regn. No. HR47B1917, due to wrongful act or negligence of respondent no. 1 Sanjay Kumar, who was driving the vehicle? OPP Issue no. 1 in Petition No. 76467/2016:
1. Whether the petitioner Raju suffered injuries on 14.07.2014 at about 2.00 AM in front of Chanderika Farm House, Kankarkhera, Meerut, UP, in a vehicular accident involving a Truck bearing Regn. No. HR47B1917, due to wrongful act or negligence of respondent no. 1 Sanjay Kumar, who was driving the vehicle? OPP
12. In a claim petition filed by the LRs of deceased or by the injured for compensation under Section 166 of M. V. Act, onus is on the petitioners to prove that injuries were caused in a vehicular accident due to wrongful act or negligence of the driver of the offending vehicle.
13. PW2 Sh. Raju (Petitioner in claim petition No. 76467/2016) has deposed on affidavit Ex. PW2/A that on 14.07.2014 at about 2.00 AM he along with Jitender Rai (deceased) and other persons was going on a tempo to Haridwar for bringing 'Kanwad' and when the tempo reached in front of Chanderika Farm House, Kankarkhera, Meerut, UP, a truck bearing Regn. No. HR47B1917 came from behind at a very high speed, driven in a rash and negligent manner and hit the tempo. As a result of which he got injured and deceased Jitender Rai suffered fatal injuries.
14. In the cross examination of PW2 by the Counsel for respondent no. 3/Insurance Co., he stated that the tempo was standing on the road side Common Award in Petitions No.: 76589/2016 & 76467/2016 Page No. 5 of 22 when it was hit by the offending vehicle. PW2 has not been crossexamined by the respondents no. 1 and 2.
15. It is a settled legal position that while deciding a petition under Section 166 of the M. V. Act, the Claims Tribunal has to decide negligence on the touch stone of preponderance of probabilities. Reference in this regard is made to the observations of the Hon'ble Supreme Court of India in Kaushnumma Begum and Others v/s New India Assurance Company Limited, 2001 ACJ 421 SC, wherein it was held that the issue of wrongful act or omission on the part of the driver of motor vehicle involved in the accident is of secondary importance and mere use or involvement of motor vehicle in causing bodily injuries or death to a human being or damage to property would make the petition maintainable under Section 166 & 140 of the M. V. Act.
16. Nevertheless, it is also a settled legal position that in a claim petition under Section 166 of the M. V. Act, burden is on the claimants/petitioners to prove negligence. The law to this effect declared in Minu B Mehta Vs. Balkrishna Ramchandra Nayan (1977) 2 SC 441 was reiterated by the Supreme Court in Oriental Insurance Company Limited Vs. Meena Variyal 2007 (5) SCC 428, which has been followed by Hon'ble High Court of Delhi in a recent case, New India Assurance Co. Ltd. Vs. Devki & Ors., MAC APP 165/2013 decided on 29.02.2016.
17. Certified copies of criminal proceedings filed by the petitioners on record are admissible in evidence and deemed to be correct till they are proved to be contrary. Certified copies include copy of FIR, site plan, postmortem report of deceased Jitender Rai, MLC of injured Raju and chargesheet. Copies of criminal proceedings have not been challenged or controverted by any of the respondents.
18. According to certified copies of criminal proceedings, the offending vehicle ie., Truck bearing Regn. No. HR47B1917 was involved in the accident with respect to which FIR was filed at Police Station Kankarheda, Sadar, Meerut, Common Award in Petitions No.: 76589/2016 & 76467/2016 Page No. 6 of 22 UP and Sanjay Kumar (Respondent no. 1) has been chargesheeted U/s. 279/337/338/304A/427 IPC for causing this accident. The evidence about involvement of the offending vehicle in the accident and about the fact that offending vehicle was driven by Sanjay Kumar, Respondent no. 1 at the time of accident has not been controverted or disputed by any of the respondents.
19. Testimony of PW2 is very specific about the manner of accident, according to which the deceased and PW2 along with some other persons were sitting in the tempo bearing Regn. No. HR55M5546 which was parked on the road side when the stationary tempo was hit from behind by the offending vehicle. Manner of accident as deposed by PW2 has also gone unrebutted as there is no crossexamination on this fact by the Counsel for respondent no. 3/Insurance Co. and the witness has not been crossexamined by respondents no. 1 and 2 at all.
20. Site plan shows Mark A as the spot where the offending vehicle had hit the tempo bearing Regn. No. HR55M5546 from behind. Mark B is the spot where the tempo was parked and Mark B1 is the spot where the tempo had moved after being hit by the offending vehicle. Position of tempo at point B shows that tempo was standing on the extreme left side of the road. As per the direction of offending vehicle indicated in the site plan, it had abruptly turned on the left side and then hit the stationary tempo standing at point B on the road side. The site plan has not been disputed and neither the position and the direction of two vehicles indicated therein. The fact that tempo moved from point B to B1 duet to the impact shows the force of impact and the force of impact shows that the offending vehicle was moving at a very high speed. Though, in the noting at Sr. No. 4 at the bottom of site plan, it is mentioned that the offending vehicle had turned towards left side due to bursting of tyre, this fact has not been proved on record by the respondents. It is to be noticed that despite putting in appearance and due opportunity, respondents no. 1 and 2 have not filed any written statement to put on record their line of defence.
Common Award in Petitions No.: 76589/2016 & 76467/2016 Page No. 7 of 22
21. The evidence on record proves that the stationary tempo in which deceased Jitender Rai and injured Raju were sitting was hit from behind by the offending vehicle which had abruptly gone on the left side. Sudden movement of the offending vehicle on the extreme left side has not been explained by the Respondent no. 1. In the absence of any justification or explanation being brought on record by the respondent no. 1, hitting the stationary tempo parked on extreme left side of the road from behind is a rash and negligent act on the face of it.
22. According to certified copy of postmortem report of the deceased Jitender Rai, death was caused due to interacranial injury. Postmortem report has not been disputed. Neither there is any dispute about the fact that the injury resulting in death of deceased Jitender Rai was caused in the vehicular accident involving Truck bearing Regn. No. HR47B1917 (offending vehicle).
23. As per certified copy of MLC of Raju (Petitioner in claim petition No. 76467/2016) and supplementary report of Unit Incharge, Department of Orthopedic, S. V. B. P. hospital, Meerut, petitioner suffered compound fracture, dislocation of left ankle besides head injury, which is grievous in nature. MLC and nature of injury has not been rebutted.
24. On the basis of material on record, I hold that deceased Jitender Kumar suffered fatal injuries and injured Raju suffered grievous injuries in the accident involving Truck bearing Regn. No. HR47B1917, which took place due to rash and negligent conduct of its driver Sanjay Kumar, respondent No.
1. Issue No. 1 in both the cases is decided in favour of the petitioners and against the respondents.
25. Findings on Issue No. 2 in both the Claim Petitions No.: 76589/2016 & 76467/2016) Whether the petitioner(s) are entitled to any compensation? If so, to what amount and from whom?
Since the Issue No. 1 is decided in favour of the petitioner(s), they are entitled for the compensation.
Common Award in Petitions No.: 76589/2016 & 76467/2016 Page No. 8 of 22 Guidelines and criteria for assessment of compensation in death cases
26. In Sarla Verma (Smt) and Others vs. Delhi Transport Corporation and Another, (2009) 6 Supreme Court Cases 121, Hon'ble Supreme Court of India laid down general principals for computation of compensation in death cases. The relevant paras of the judgment are reproduced as under:
18. Basically only three facts need to be established by the claimants for assessing compensation in the case of death:
(a) age of the deceased;
(b) income of the deceased; and
(c) the number of dependents.
This issues to be determined by the Tribunal to arrive at the loss of dependency are:
(i) additions/deductions to be made for arriving at the income;
(ii) the deduction to be made towards the personal living expenses of the deceased; and
(iii) the multiplier to be applied with reference to the age of the deceased.
If these determinations are standardized, there will be uniformity and consistency in the decisions. There will be lesser need for detailed evidence. It will also be easier for the Insurance Companies to settle accident claims without delay.
19. To have uniformity and consistency, the Tribunals should determine compensation in cases of death, by the following wellsettled steps:
Step1 (Ascertaining the multiplicand) The income of the deceased per annum should be determined. Out of the said income a deduction should be made in regard to the amount which the deceased would have spent on himself by way of personal and living expenses. The balance, which is considered to be the contribution to the dependent family, constitutes the multiplicand.
Step2 (Ascertaining the multiplier) Having regard to the age of the deceased and period of active career, the appropriate multiplier should be selected. This does not mean ascertaining the number of years he would have lived or worked but for the accident. Having regard to several imponderables in life and economic factors, a table of multiplier with reference to the age has been identified by this Court. The multiplier should be chosen from the said table with reference to the age of the deceased. Step3 (Actual Calculation) The annual contribution to the family (multiplicand) when multiplied by such multiplier gives the 'loss of dependency' to the family. Thereafter, a conventional amount in the range of Rs. 5,000/ to Rs. 10,000/ may be added as loss of estates. Where the deceased is survived by his widow, another conventional amount in the range of Rs. 5,000/ to Rs. 10,000/ should be added under the head of loss of consortium. But no amount is to be awarded under the head of pain, suffering or hardship caused to the legal heirs of the deceased.
The funeral expenses, cost of transportation of the body (if incurred) and the cost of any medical treatment of the deceased before death (if incurred) should also be added.
Guidelines and criteria for assessment of compensation in injury cases
27. In Raj Kumar vs. Ajay Kumar & Another (2011) 1 SCC 343, Hon'ble Supreme Court of India has laid down general principles for computation of Common Award in Petitions No.: 76589/2016 & 76467/2016 Page No. 9 of 22 compensation in injury cases. The relevant paras of the judgment are reproduced as under:
5 The provision of the Motor Vehicles Act, 1988 ("the Act", for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or the Tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with ref erence to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to en joy those normal amenities which he would have enjoyed but for the in juries, and his inability to earn as much as he used to earn or could have earned.
6 The heads under which compensation is awarded in personal injury cases are the following:
Pecuniary damages (special damages)
(i) Expenses relating to treatment, hospitalization, medicines, trans portation, nourishing food and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent dis ability
(iii) Future medical expenses.
Nonpecuniary damages (general damages)
(iv) Damages to pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage)
(vi) Loss of expectation of life (shortening of normal longevity).
In routine personal injury cases, compensation will be awarded only under heads (i), (ii), (a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii), (b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent dis ability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life.
Common Award in Petitions No.: 76589/2016 & 76467/2016 Page No. 10 of 22 CASE WISE COMPUTAITON OF COMPENSATION I. Claim Petition No. 76589/2016 (Manju & Others Vs. Sanjay Kumar & Others) Age of the deceased Jitender Rai
28. PW1 Smt. Manju, mother of the deceased has placed on record Voter Icard of deceased as Ex. PW1/3, according to which he was 18 years old on 01.01.2014. This document has not been disputed and there is no reason to disbelieve the age of deceased mentioned in this document. Accident took place on 14.07.2014. Accordingly, age of the deceased was 18 years and 6 months at the time of accident.
Income of deceased Jitender Rai
29. PW1 Smt. Manju, mother of the deceased has deposed in the affidavit that his son was doing private job and was earning Rs. 15,000/ per month. However, no evidence is led to prove this fact. There is no evidence about educational qualification of the deceased also.
30. In the above facts and circumstances, monthly income of the deceased Jitender Rai is assessed on the basis of minimum wages rate of an unskilled worker prevailing in Delhi at the time of accident. Accident took place on 14.07.2014 when the minimum wages rate of an unskilled worker in Delhi was Rs. 8,554/. Accordingly, annual income of the deceased is assessed as Rs. 1,02,648/ (Rs. One Lac Two Thousand Six Hundred Forty Eight Only) (Rs. 8,554/ X 12).
Addition in the income towards future prospects:
31. The issue was considered recently by the Hon'ble High Court of Delhi in MAC. Appeal No. 622/2014 (The Oriental Insurance Co. Ltd. Vs. Lekharaj @ Lekh Raj & Ors.) decided on 27.01.2016. Relevant paras of the judgment are reproduced for reference:
"4. In the case reported as Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr., (2009) 6 SCC 121, Supreme Court interalia, ruled that the element of future Common Award in Petitions No.: 76589/2016 & 76467/2016 Page No. 11 of 22 prospects of increase in income will not be granted in cases where the deceased was "self employed" or was working on a "fixed salary". Though this view was af firmed by a bench of three Hon'ble Judges in Resham Kumari & Ors. Vs. Madan Mohan & Anr. (2013) 9 SCC 65, on account of divergence of views, as arising from the ruling in Rajesh & Ors. Vs. Rajbir & Ors., (2013) 9 SCC 54, the issue was later referred to a larger bench, interalia, by order dated 02.07.2014 in National In surance Company Ltd. Vs. Pushpa & Ors., (2015) 9 SCC 166.
5. Against the above backdrop, by judgment dated 22.01.2016 passed in MAC Appeal No. 956/2012 Sunil Kumar Vs. Pyar Mohd & Ors., this court has found it proper to follow the view taken earlier by a learned single judge in MAC Appeal No. 189/2014 (HDFC Ergo General Insurance Co. Ltd. Vs. Smt. Lalta Devi & Ors.) decided on 12.01.2015, presently taking the decision in Reshma Kumari (Supra) as the bind ing precedent, till such time the law on the subject of future prospects for those who are "self employed" or engaged in gainful employment at a "fixed salary" is clarified by a larger bench of the Supreme Court. This applies to the matter at hand because the claimant here pleaded about gainful employment at a fixed salary and has not led any evidence showing the salary was subject to any periodic increase."
32. In view of the above legal position, no addition can be made towards future prospects in the income of the deceased Jitender Rai, as there is no proof of employment and income has been assumed on the basis of minimum wages rate of an unskilled worker.
Number of dependents
33. Petitioners are the parents of the deceased. It is claimed by them that they were dependent on their deceased son. There is no dispute about their identity and relationship with the deceased. In the absence of any evidence to show or suggest that petitioner no. 1 Smt. Manju has any independent source of income, being mother, she is a dependent LR of the deceased. According to voter Icard (Ex. PW1/2) of petitioner no. 2 Sh. Narender Rai, father of deceased, his age was 46 years on 01.01.2008. Accordingly, at the time of accident he was 52 years and 06 months old. In the absence of any evidence to show that he is unable to work or suffering from any ailment, he is not considered to be a dependent LR of the deceased.
34. In the facts and circumstances, Smt. Manju (petitioner no. 1), mother of the deceased is the sole dependent LR of the deceased Jitender Rai. Deduction towards personal living expenses of the deceased:
35. In view of Reliance General Insurance Company Limited Vs. Murun & Others (Supra) and Sarla Verma (Supra), since the deceased is survived by Common Award in Petitions No.: 76589/2016 & 76467/2016 Page No. 12 of 22 one dependent LR, half (1/2) of the income of the deceased would be deducted towards his personal living expenses. Therefore, annual contribution to the petitioner, who is the dependent LR of the deceased would be Rs. 51,324/ { Rs. 1,02,648/ (annual income) X 1/2 }, which is ascertained as Multiplicand.
Selection of multiplier:
36. Since the deceased was unmarried, in view of Vijay Laxmi & Anr. vs. Binod Kumar Yadav & Ors. ILR (2012) 6 DEL 447 and HDFC Ergo General Insurance Company Limited vs. Smt. Lalta Devi & Others (Supra), the multiplier applicable to calculate total loss of dependency shall be as per the age of the mother of the deceased.
37. As per the voter Icard (Ex. PW1/1) of Smt. Manju (petitioner no. 1) mother of the deceased, she was 45 years old on 01.01.2008. Accident took place on 14.07.2014. Accordingly, she was 51.6 years old at the time of the accident and multiplier applicable would be 11 as per the criteria laid down in Sarla Verma (Smt) and Others (Supra).
Loss of financial dependency:
38. On the basis of facts and circumstances of this case and the material on record, total loss of financial dependency of the LRs of the deceased would be Rs. 5,64,564/ (Rs. Five Lacs Sixty Four Thousand Five Hundred Sixty Four Only) {Rs. 51,324/ (Multiplicand) X 11 (Multiplier)} Compensation under nonpecuniary heads:
39. Issue of adequacy of the amount of compensation under nonpecuniary heads, in terms of just and fair, came into consideration before the Delhi High Court recently in MAC APP No. 160/2015 & CM No. 2915/2015 titled Shriram General Insurance Company Limited Vs. Usha & Ors., decided on 05.05.2016, wherein while referring to the judgment of Rajesh & Others Vs. Rajbir Singh & Others (2013) 9 SCC 54 in the context of an accident that had occurred on 05.10.2007, it was held that the amount given under Common Award in Petitions No.: 76589/2016 & 76467/2016 Page No. 13 of 22 nonpecuniary heads cannot remain same after elapse of a decade. Relevant paras of the judgment are reproduced as under:
8. The contention of the claimants as to the nonpecuniary heads of damages is correct. The award on account of loss of consortium and loss of love and affection and funeral expenses as granted in Rajesh Vs. Rajbir (Supra) in the context of an accident that had occurred on 05.10.2007 was adopted by the Supreme Court in a case later decided reported as Shashikala Vs. Gangalakshmamma (2015) 9 SCC 150 wherein the fatal accident had oc curred on 14.12.2006.Similar award were made in Kala Devi (Supra) per taining to cause of action of 15.12.2003. The assessment of nonpecuniary damages under these heads with reference to cause of action that has arisen in 20032007 cannot remain the same even after elapse of almost a decade. The value of money has substantially eroded over the period on account of effect of inflation. It is the duty of this court to periodically re assess the awards on nonpecuniary heads of damages so as to bring in suitable correction to restore the value of money.
9. For these reasons, it is held that in the present case where the death had occurred on 02.09.2013, the award under the heads of loss of love and af fection and loss of consortium shall be Rs. 1,50,000/ each. Similarly, the awards on account of funeral expenses and loss of estate deserve to be in creased to Rs. 50,000/ each. The awards are directed to be enhanced to the abovesaid levels in the case at hand.
40. In view of the above, petitioners are entitled to a sum of Rs. 1,50,000/ (Rs. One Lac Fifty Thousand Only) towards loss of love & affection, Rs. 50,000/ (Rs. Fifty Thousand Only) towards funeral expenses and Rs. 50,000/ (Rs. Fifty Thousand Only) towards loss of estate. Computation of compensation:
41. The total compensation is assessed as under:
Sl. No. Heads Amount
1. Loss of financial dependency 5,64,564.00
2. Loss of Love and Affection 1,50,000.00
3. Funeral Expenses 50,000.00
4. Loss of Estate 50,000.00
Total 8,14,564.00
Accordingly, the total compensation is assessed as Rs. 8,14,564/ (Rs. Eight Lacs Fourteen Thousand Five Hundred Sixty Four Only).
Common Award in Petitions No.: 76589/2016 & 76467/2016 Page No. 14 of 22
II. Claim Petition No. 76467/2016
(Raju Vs. Sanjay Kumar & Others)
PECUNIARY DAMAGES
Expenses relating to treatment, hospitalization and medicines
42. PW2 Sh. Raju, petitioner has deposed in the affidavit (Ex. PW2/A) that after the accident he was taken to District hospital, Meerut, UP from where he was shifted to Acharyashree Bhikshu Govt. Hospital, Delhi, where he was admitted on 19.07.2014 and was discharged on 20.07.2014. Thereafter, he was admitted in Dr. R. M. L. hospital on 20.07.2014 and was discharged on 21.07.2014. He has deposed that he has spent around Rs. 1,00,000/ on treatment.
43. Certified copy of MLC along with supplementary report of doctor has been filed on record according to which petitioner suffered compound fracture, dislocation of left ankle besides head injury. The medical treatment record has been collectively filed as Ex. PW2/2 which includes discharge card of the petitioner from Acharyashree Bhikshu hospital and Dr. R. M. L. hospital, which corroborate the deposition of PW2 about his admissions in these two hospitals. Diagnosis about the nature of injury in MLC and discharge cards are on the same line. The treatment record also includes OPD card of Dr. R. M. L. hospital, according to which petitioner lastly visited the hospital as an OPD patient on 10.09.2014. The entire treatment record has gone unrebutted which has been filed in original and there is no reason to disbelieve the credibility.
44. PW2 has filed two medical bills along with treatment record collectively Ex. PW2/2 amounting to Rs. 941/. The bills coincide with the period of treatment and there is nothing on record to create any doubt about genuineness of bills.
45. Therefore, petitioner Raju is entitled to claim Rs. 941/ (Rs. Nine Hundred Forty One Only) towards expenses relating to treatment, hospitalization and medicines.
Common Award in Petitions No.: 76589/2016 & 76467/2016 Page No. 15 of 22 Expenses towards Conveyance and Food (Special Diet)
46. As per the medical treatment record, the petitioner remained under treatment as an OPD patient at Dr. R. M. L. hospital till 10.09.2014, which is the date mentioned in the OPD card filed. There is no reason to disbelieve the record which shows petitioner remained under active treatment for about 02 months after the accident. He not only required special diet for speedy recovery during this period but also incurred expenditure towards conveyance for hospital visits.
47. Keeping in view the period of treatment, an amount of Rs. 10,000/ (Rupees Ten Thousand Only) towards Special Diet and Rs. 5,000/ (Rupees Five Thousand Only) towards conveyance would be just and fair compensation under this head.
Loss of earning during the period of treatment
48. Petitioner has deposed in affidavit (Ex. PW2/A) that at the time of accident he was doing private job and was earning Rs. 15,000/ per month. However, there is no evidence to prove this fact. There is no document on record to show the educational qualification of the petitioner. In these circumstances, income of the petitioner can be assessed on the basis of Minimum Wages Rate of an unskilled worker prevailing in Delhi at the time of accident. The accident took place on 14.07.2014 when the minimum wages rate of an unskilled worker in Delhi was Rs. 8,554/.
49. Keeping in view the nature of injury and period of treatment, petitioner would not have been able to work for three (03) months after the accident, resulting in loss of income.
50. Accordingly, considering the minimum wages rate of an unskilled worker prevailing in Delhi at the time of accident, total loss of income suffered by him would be Rs. 25,662/ (Rs. Twenty Five Thousand Six Hundred Sixty Two Only) {Rs. 8,554/ (wages on 14.07.2014) X 3 months} Common Award in Petitions No.: 76589/2016 & 76467/2016 Page No. 16 of 22 Attendant Charges
51. Petitioner Raju has not led any affirmative evidence to show that he incurred expenditure for hiring the attendant to nurse him and take care of him during the period of treatment and recovery. It is a matter of common knowledge that family members take care of the injured person and it is not possible to calculate the value of those services in terms of money.
52. In DTC vs. Lalit. AIR 1981 Delhi 558, Hon'ble High Court of Delhi has held that the victim is entitled to compensation even if no attendant is hired as some family member renders gratuitous services.
53. In United India Insurance Company Limited vs. Rama Swamy and Others, 2012 (2) T. A. C. 34 (Del.), value of gratuitous services rendered by a family member of the claimant has been assessed at Rs. 2,000/ per month.
54. Keeping in view the injury suffered by the petitioner/injured, body parts involved, period of hospitalization and duration of treatment, he would have required the assistance of a family member for atleast two (02) months. Therefore, petitioner/injured is entitled for compensation of Rs. 4,000/ {(Rs. 2,000 X 2) (Rupees Four Thousand Only)} towards the attendant charges.
NONPECUNIARY DAMAGES (GENERAL DAMAGES) Pain, Sufferings & Trauma
55. While discussing the criteria to ascertain the compensation for pain and sufferings by victim of vehicular accident, observations of Hon'ble High Court of Delhi in Satya Narain vs. Jai Kishan, FAO No: 709/02, date of decision:
02.02.2007 are as under:
12. On account of pain and suffering, suffice would it be to note that it is difficult to measure pain and suffering in terms of a money value.
However, compensation which has to be paid must bear some objectives corelation with the pain and suffering.
13. The objective facts relatable to pain and suffering would be:
(a) Nature of injury.
(b) Body part affected.
(c) Duration of the treatment.
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56. Applying the above criteria to the facts of the present case where petitioner/injured suffered grievous injury, I am of the opinion that an amount of Rs. 35,000/ (Rupees Thirty Thousand Only) would be just and fair compensation for pain, sufferings and trauma suffered by the petitioner as consequences of injury.
Computation of compensation:
57. The total compensation is assessed as under:
Sl. Heads Amount
No.
1. Expenses relating to treatment, hospitalization and 941.00
medicines
2. Expenses towards conveyance and food (special diet) 15,000.00
3. Loss of earning during the period of treatment 25,662.00
3. Attendant Charges 4,000.00
4. Pain, Sufferings & Trauma 35,000.00
Total 80,603.00
Accordingly, petitioner Raju is entitled for compensation of Rs. 80,603/ (Rupees Eighty Thousand Six Hundred Three Only).
Liability:
58. Respondent No. 1 Sanjay Kumar is liable to pay compensation being the driver of the offending vehicle i.e., Truck bearing Regn. No. HR47B1917 as the accident took place due to his rash and negligent driving. M/s. Omax Au tos Limited (Respondent no. 2) is vicariously liable for the conduct of the driver, being owner of the offending vehicle.
59. It is admitted by the respondent No. 3/Reliance General Insurance Company Limited that the offending vehicle ie., Truck bearing Regn. No. HR47B1917 was duly insured with the Insurance Co. vide Policy No. 1304542334000434 valid from 01.06.2014 to 31.05.2015, including the date of accident. However, the liability is contested on the ground that neither the driver of the offending Common Award in Petitions No.: 76589/2016 & 76467/2016 Page No. 18 of 22 vehicle (Respondent no. 1) was holding driving licence nor the owner (respondent no. 2) had a permit to ply the offending vehicle.
60. Respondent no. 3/Insurance Co. has examined Sh. R. Ashwin Kumar, Legal Executive, Reliance General Insurance Company Limited as R3W1, who has deposed on affidavit Ex. R3W1/A that despite a notice under Order XII Rule 8 CPC being served on respondents no. 1 and 2 to produce the driving licence of driver of the offending vehicle and permit of the offending vehicle, the doc uments were not produced by the respondents no. 1 and 2. The witness has filed on record copy of the legal notice (Ex. R3W1/1) sent to respondents no. 1 and 2, postal receipts to prove the service of notice on respondents no. 1 and 2 (Ex. R3W1/2 to Ex. R3W1/4) and copy of insurance cover note (Ex. R3W1/5). Testimony of this witness has gone unrebutted by the respondent no. 1 and 2 who did not cross examine the witness despite being given op portunity.
61. It is to be noted that on service of notice of the claim petitions, Sh. Amit Yadav, AR of respondent no. 2 had appeared on behalf of respondents no. 1 and 2 on 26.09.2014, when the written statement was filed by the Insurance Co. wherein specific plea with respect to production of driving licence and permit has been taken. Thus, respondents no. 1 and 2 had due notice and onus was on them to produce these documents. Besides, Respondent no. 3/Insurance Co. has duly proved the legal notice given to respondents no. 1 and 2 under Order XII Rule 8 CPC despite which neither the driving licence nor the permit of the offending vehicle has been produced and filed by the re spondents no. 1 and 2 respectively. Since these documents are deemed to be in the possession of respective respondents and they have failed to pro duce these documents, adverse inference is drawn against them.
62. Respondent no. 3/Insurance Co. has proved on record willful breach of insurance policy by the owner of the offending vehicle (Respondent no. 2) with respect to the condition of driving licence and permit.
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63. The issue of liability of the Insurance Company towards third party even in case of breach of the terms of Insurance policy has been settled by the Hon'ble Supreme Court of India in Sohan Lal Passi Vs. P. Sesh Reddy (1996) 5 SCC 21) and National Insurance Company Vs. Swaran Singh & Ors (2004) 3 SCC 297. The settled legal position is that the liability of the Insurance Company visavis the third party is statutory and if the Insurance Company successfully proves the conscious breach of the terms of the policy, then it would be entitled to recovery rights against the owner of the driver as the case may be.
64. Therefore, in view of the above legal position, liability of the respondent no. 3/Insurance Co. to satisfy the Award in the first instance is statutory because the offending vehicle was duly insured to cover the third party risk. However, since the driver of the offending vehicle did not have valid driving licence and there was no permit to ply the offending vehicle at the time of accident, Respondent No. 3/Insurance Co., will be entitled to recover the amount of compensation from the respondents no. 1 and 2, driver and owner of the offending vehicle by filing an execution petition in this very Award without having recourse to an independent civil proceedings.
CASEWISE RELIEF
I. Claim Petition No. 76589/2016
(Manju & Others Vs. Sanjay Kumar & Others)
65. In view of the findings on Issues No. 1 & 2, I award an amount of Rs. 8,14,564/ (Rs. Eight Lacs Fourteen Thousand Five Hundred Sixty Four Only) as compensation to petitioners. Petitioners are also entitled to get in terest @ 9% pa from the date of filing of the claim petition i.e., 14.08.2014 till realisation. Amount of Interim Award, if paid any, shall be deducted from the compensation amount.
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66. Share of petitioners in the award amount shall be as under: Sr. Name Relationship with Share in the No. the deceased award amount
1. Smt. Manju Mother 80% (Petitioner No.1)
2. Sh. Narender Rai Father 20% (Petitioner No. 2) II. Claim Petition No. 76467/2016 (Raju Vs. Sanjay Kumar & Others)
67. In view of the findings on Issues No. 1 & 2, I award an amount of Rs. 80,603/ (Rupees Eighty Thousand Six Hundred Three Only) as compensation to the petitioner. Petitioner is also entitled to get interest @ 9% pa from the date of filing of the claim petition i.e 14.08.2014 till realisation. Amount of Interim Award, if paid any, shall be deducted from the compensation amount.
Mode of payment and disbursement:
68. Respondent No. 3/Insurance Company shall deposit the award amount within 30 days from the date of Award in the State Bank of India, Tis Hazari Branch, Delhi in the name of the petitioners in both the cases under intimation to the petitioners and the Tribunal. In default of payment within the prescribed period, respondent/Insurance Company shall be liable to pay penal interest @ 12% p.a. for the period of delay till its realisation.
69. While making the deposit, Insurance Company shall mention the particulars of this case, name of the Tribunal and the date of decision on the back side of the cheque. Insurance Company shall also file copy of the award attested by its responsible officer in the bank at the time of deposit. Insurance Co. is further directed to place on record proof of deposit of the award amount, proof of delivery of notice to the petitioners in respect of deposit of the award Common Award in Petitions No.: 76589/2016 & 76467/2016 Page No. 21 of 22 amount and complete details in respect of calculation of interest etc. in the Tribunal within 30 days with effect from today.
70. In order to avoid the compensation money being frittered away, 50% share of Smt. Manju (petitioner no. 1 in Petition No. 76589/2016) shall be kept in FDR in her name for five (05) years. No loan or advance shall be allowed against the deposit. However, she can withdraw the quarterly interest from the deposit.
71. Petitioners shall open account in State Bank of India, Tis Hazari Branch, Delhi. Manager of the Bank shall comply and release the award amount to the petitioners in terms of the Award.
72. Copy of the Award be given to the parties free of cost.
73. Copy of the Award be also sent to the Court of concerned Metropolitan Magistrate.
74. Nazir is directed to prepare a separate file for compliance and be put up on 24.10.2016.
75. File be consigned to Record Room.
Announced in the open Court (Santosh Snehi Mann)
on 17.09.2016 Judge, Motor Accident Claims Tribunal02,
KJC West District, Tis Hazari Courts, Delhi.
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