Delhi District Court
Joginder vs . M/S. Vikas Road Carriers on 16 November, 2012
-:1:-
Joginder vs. M/s. Vikas Road Carriers
IN THE COURT OF SH. AMAR NATH
PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS TRIBUNAL01,
DWARKA COURTS, NEW DELHI
MACP No 18/2009
1. Joginder S/o Sh. Roop Chand,
2. Savita D/o Sh. Joginder - Aged 10 years
3. Ajay S/o Sh. Joginder - Aged - 8 years
(Petitioner no.2 and 3 are minor children through father and natural
Guardian petitioner no.1)
R/o 210A, Dinpur Village, Shyam Vihar, Phase - I, New Delhi 43
.................Petitioners
Versus
1. M/s. Vikas Road Carriers Ltd.
R/o 64, National Highway no. 10, Mundka, Delhi 41
2. M/s. National Insurance Co. Ltd.
4th Floor, Palmohan House
5/67, Padam Singh Road, Karol Bagh,
New Delhi (Insurer)
3. Sh. Inder Shekher S/o Bankey Lal
R/o 2/135, Rani Khera, Delhi
.......Respondents
MACP No. 18/09
( Page no 1 of 1) -:2:- Joginder vs. M/s. Vikas Road Carriers
1.Date of institution: 20.01.2009
2.Date of framing of issues: 24.07.2009
3.Date of hearing arguments :16.11.2012
4.Date of decision: 16.11.2012 AWARD/ JUDGEMENT:
1. This petition was filed by the husband and two children (petitioners herein) of the deceased. The offending vehicle was driven by Respondent no. 3 (in Short R3) which was owned by the Respondent no.1( in short R1) and the same was insured with respondent no 2 ( in short R2).
2. Brief facts of the case are that on 10.12.2008, Smt. Poonam (hereinafter as deceased) was the pillion rider on the Motorcycle being driven by her husband (petitioner no.1) while proceedings from Dinpur Village to Najafgarh. At about 05.15 p.m on that day when they reached in front of Manav Sewa Hospital Chhawla Road, Najafgarh, a tanker bearing no. HR38C0131 ( hereinafter the offending vehicle) which was driven by R3 with a high speed in a rash and negligent manner had hit the motorcyclist from behind. As a result of which the petitioner and deceased fell down on the road and deceased was crushed by the wheels of the offending vehicle. R3 ran away from the place of accident after leaving the tanker there.
3. Pursuant to service of the notice, R1 and R3 never appeared and they were proceeded exparte vide order dated 13.04.2009 and 12.07.2011 respectively. Initially R2 was also set to exparte, however, its order of exparte was recalled vide order dated13.04.2009 by taking written statement on behalf of the insurance company on MACP No. 18/09 ( Page no 2 of 2) -:3:- Joginder vs. M/s. Vikas Road Carriers record.
4. This petition had been resisted by Insurance company/R2 where in denied the factum/ manner of the accident. It is pleaded that alleged accident had occured due to own negligent driving of the motorcyclist. However, it has been admitted the fact that the offending vehicle was insured in the name of R1 vide policy no.
354500/31/07/6300004925 valid from 31.03.2008 to 30.03.2009 subject to the terms and condition of the policy.
5. From the pleadings of the parties, the issues were framed on 24.07.2009. An interim award was also passed on the same date.
6. Having heard arguments advanced on behalf of both the sides and after perusal the material including the evidence on record, my issuewise findings are as under: ISSUE NO. 1 Whether, wife of petitioner no.1 namely Smt. Poonam had sustained fatal injuries on her person in an accident caused due to negligent driving of the vehicle i.e. a tanker bearing registration number HR38C0131, being owned by respondent no.1 and insured with respondent no.2 on 10.02.2008 ? ....OPP
7. The onus to prove the aforesaid issue was on the petitioners. In order to substantiate the aforesaid issue petitioner no.1 filed his examination in chief by way of affidavit Ex. PW1/A. He during the course of his deposition had narrated the events of MACP No. 18/09 ( Page no 3 of 3) -:4:- Joginder vs. M/s. Vikas Road Carriers the accident in details in para no.1 of his affidavit. His deposition has not been controverted by R1 & R3 as they chose to stay away from the proceedings and hence, no question was put to him on the aspect of the negligence, however, he was cross examined by the counsel for the insurance company/R2 but nothing adverse came out during his crossexamination so as to discredit the version given by him with regard to the negligent driving of the offending vehicle. Furthermore, his deposition assumes an importance for disposal of issue as the FIR was registered on his statement and the said FIR finds mentioned the number of the offending vehicle so, I find no reason to disbelieve his testimony and hence, his statement has to be relied upon.
8. Besides this, the petitioners have proved the certified copies of the criminal record viz. Charge sheet Ex. PW 1/1, FIR Ex. PW1/3, site plan Ex. PW1/4, MLC Ex. PW1/5 and postmortem report of Smt. Poonam Ex.PW1/6 to establish the factum of accident.
9. In Bimla Devi and others Vs. Himachal Raod Transport Corporation and others (2009) 13 SC 5 13, it has been observed that in a road accident, the strict principles of poof as in a criminal case are not attracted. Relevant portion of the judgment is reproduced as under: "15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of MACP No. 18/09 ( Page no 4 of 4) -:5:- Joginder vs. M/s. Vikas Road Carriers preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. For the said purpose, the High Court should have taken into consideration the respective stories set forth by both the parties."
10. The aforesaid proposition of law has again upheld by the Hon'ble Apex Court in Parmeshwari Vs. Amir Chand and others 2011 (1) SCR 1096 (Civil Appeal No. 1082 of 2011)
11. Having regards to these fact and circumstances, I am of the opinion that petitioners have been able to establish on record that accident did take place due to negligence of driver of the offending vehicle at the given date, time and place.
12. In view of the above discussions, issue no. 1 is decided in favour of the petitioners and against the respondents.
ISSUE NO. 2
In case, issue no.1 is decided in affirmative then to what amount of compensation, petitioners are entitled to and from whom? .....OPP
13. As issue no.1 is decided in favor of the petitioners in affirmative and thus, petitioners are entitled for the compensation. Quantum of the compensation however, is required to be calculated.
14. Ld. Counsel for the petitioners has urged that the deceased was doing a private service and her earning was Rs.6,000/ per month and she was contributing her entire income for household expenses. She was a pivotal point of the entire family. She had left behind three legal heirs including her husband. Wife did not only take care the MACP No. 18/09 ( Page no 5 of 5) -:6:- Joginder vs. M/s. Vikas Road Carriers domestic affairs of the family but also maintains the decorum of the family. The life of petitioners being her husband and children have become miserable in her absence. He further urged that under the head of loss of dependency, compensation should be determined upon the basis of minimum wages of a nonmatriculate person after relying upon an unreported judgment of our Hon'ble High Court Royal Sundaram Alliance Insurance Co. Ltd. Vs. Master Manmeet Singh & Ors. MAC. APP. 590/2011 decided by Hon'ble Mr. Justice G. P. Mittal on 30/01/2012 wherein, it has been observed that:
23. Thus, the value of services rendered by a home maker should be taken as the minimum salary of a non matriculate, matriculate or a Graduate, (in the absence of any evidence to the contrary). In case of a young mother and a wife there should be an addition of 25% of the minimum salary/ wages as per the educational qualification i.e. Graduate, matriculate or non matriculate. There should be addition of 15% in the case of a middle aged mother and a wife and 'NIL' in case of a wife and a mother beyond the age of 50 years as the children become independent by that time. The value of gratuitous services rendered should be gradually reduced after the age of 55 years, even though mothers take care of their children (irrespective of their ages) and even when they (the children) are married.
24. The next question that falls for consideration is whether there should be any deduction towards the personal living expenses of the deceased (Home maker). While awarding damages there is balancing of the loss to the Claimants of the pecuniary benefits with the gain of the pecuniary advantages which comes to them by reason of death. In Gobald Motor service Ltd. Anr. v. R. M. K. Veluswami & Ors., AIR 1962 SC 1, it was observed as under: "........ The general rule which has always prevailed in regard to the assessment of damages under the Fatal Accidents Acts is well settled, namely, that any benefit accruing to a dependant by reason of the relevant death must be taken into account. Under those Acts the balance of loss and gain to a MACP No. 18/09 ( Page no 6 of 6) -:7:- Joginder vs. M/s. Vikas Road Carriers dependant by the death must be ascertained, the position of each dependant being considered separately."
34. To sum up, the loss of dependency on account of gratuitous services rendered by a housewife shall be :
(i) Minimum salary of a Graduate where she is a Graduate.
(ii) Minimum salary of a Matriculate where she is a Matriculate.
(iii) Minimum salary of a nonMatriculate in other cases.
(iv) There will be an addition of 25% in the assumed income in (i), (ii) and
(iii) where the age of the homemaker is upto 40 years; the increase will be restricted to 15% where her age is above 40 years but less than 50 years; there will not be any addition in the assumed salary where the age is more than 50 years.
(v) When the deceased home maker is above 55 years but less than 60 years; there will be deduction of 25%; and when the deceased home maker is above 60 years there will be deduction of 50% in the assumed income as the services rendered decrease substantially. Normally, the value of gratuitous services rendered will be NIL (unless there is evidence to the contrary) when the home maker is above 65 years.
(vi) If a housewife dies issueless, the contribution towards the gratuitous services is much less, as there are greater chances of the husband's remarriage. In such cases, the loss of dependency shall be 50% of the income as per the qualification stated in (i), (ii) and (iii) above and addition and deduction thereon as per (iv) and (v) above.
(vii) There shall not be any deduction towards the personal and living expenses.
(viii) As an attempt has been made to compensate the loss of dependency, only a notional sum which may be upto Rs. 25,000/ (on present scale of the money value) towards loss of love and affection and Rs. 10,000/ towards loss of consortium, if the husband is alive, may be awarded.
(ix) Since a homemaker is not working and thus not earning, no amount should be awarded towards loss of estate.
15. After applying the ratio of judgment (supra), it makes clear that the MACP No. 18/09 ( Page no 7 of 7) -:8:- Joginder vs. M/s. Vikas Road Carriers contribution of Smt. Poonam cannot be assessed in terms of money for the services rendered to the house by her, however, for the purpose of awarding compensation to the dependants, some pecuniary estimate has to be made of her gracious services rendered towards her husband and children. The accident took place on 10.12.2008. The regard is to be had the minimum wages of a nonmatriculate person as no documentary proof has been filed. The minimum wages of a nonmatriculate person were Rs. 3876/ as on 01/2/2008.
16. As regards the age of the deceased is concerned, I am to state that the same is undisputed. Furthermore, the petitioners have relied upon the Election I Card of the deceased Ex. PW 1/8 which finds mentioned her age 25 years as on 01.01.2008 whereas Ration Card Ex. PW 1/9 shows her born year as 1982. If the age of the deceased is calculated on that basis , then it came to 25 years and 11 months at the time of accident, thus appropriate multiplier would be 17 as per the judgment of our own Hon'ble High Court titled as Vinod & Ors vs. Babbar Bhan & Ors. bearing MAC Appl. no. 507/2012 decided on 31/05/2012 wherein observed the multiplier has to be taken as per the age of the claimant or injured/deceased which is nearer to the birth on the date of accident.
17. On the basis of principles laid down in the judgment (Supra), an addition of 25% in the wages of a nonmatriculate which comes to Rs. 4845 / .
18. Keeping in view the above discussions, following sum shall be just compensation:
1 Loss of dependency (4845*17*12) = Rs. 9,88,380/ MACP No. 18/09 ( Page no 8 of 8) -:9:- Joginder vs. M/s. Vikas Road Carriers 2 Loss of Love and affection* = Rs. 25,000/ 3 For funeral expenses = Rs. 10,000/ 4 Loss of estate = Rs. 10,000/ 5 Loss of consortium = Rs. 10,000/ ____________________________________________________________________ Total Rs. 10,43,380/ (Rupees Eleven Lakhs, Eighteen thousand, three hundred and eighty only) *Under the head of loss of love and affection only Rs.25,000/ (in total to all the claimants) is granted after relying up on the judgment of our own Hon'ble High Court in MAC APP. 137/2012 titled as New India Assurance co. Ltd. vs. Bharat Singh decided on 08.08.2012 wherein observed that when full compensation is awarded towards loss of dependency then only a nominal sum is to be awarded under the aforesaid heads. Sh.
Sunil Sharma vs. Bachittar Singh (2011) 11 SCC 425 is also relied upon.
It includes the interim award of Rs 50,000/ paid to the petitioners vide order dtd 24.07.2009.
INTEREST
19. There is no material to with hold the interest, therefore, petitioners are awarded interest @ Rs 7.5% per annum from the date of filing of petition i.e. 20.01.2009.
APPORTIONMENT
20. From out of the awarded amount, petitioner no.1 shall be entitled for Rs.3,93,380/ (Rupees Three lakhs Ninety three thousand three hundred eighty only) with interest whereas the petitioner no.2 and 3 shall be given the remaining awarded amount (Rupees Six Lakhs) along with interest in equal proportion. MACP No. 18/09
( Page no 9 of 9) -:10:- Joginder vs. M/s. Vikas Road Carriers LIABILITY
21. Though the insurance company had examined R2W1 Sh. Inder Kumar Kanwaria who deposed that the insured had failed to produce the D/L of the driver of the offending vehicle despite the service of notice U/O 12 Rule 8 CPC but it cannot be ignored that another witness R2 W1 Sh. N.K. Pachauri Head Clerk Licensing Authority Eta U.P was also examined by the insurance company who produced the relevant record with regard to the D/L bearing number 9634/Eta/07 which was issued for the category of LMV(NT) on 03.11.2007 which was valid upto 2027. He further deposed that an endorsement was made for authorizing to drive HTV on 08.12.2008 and valid upto 07/12/2011 covering the date of accident and hence, D/L of R3 is found genuine authorizing him to drive the offending vehicle on the date of accident. Admittedly the offending vehicle was being driven by R3 which was owned by R1 and the same was insured with R2, therefore, R3, is the principal tort feasor. R1 and R2 are vicariously liable. All the respondents are held jointly and severally liable to pay the awarded amount. Since the vehicle was insured with R2, therefore, it shall pay the awarded amount.
22. In view of the above discussions, issue no. 2 is decided in favour of the petitioners and against the respondents.
ISSUE NO. 3
Relief.
23. In view of the findings on issues no. 1 and 2 the petitioners are awarded MACP No. 18/09 ( Page no 10 of 10) -:11:- Joginder vs. M/s. Vikas Road Carriers Rs. 10,43,380/ (Rupees Ten Lakhs, forty three thousand, three hundred and eighty only with interest inclusive the amount of Interim Award.
24. The awarded amount be deposited by R2 with State Bank of India, Dwarka Court Complex Branch, Sector10, New Delhi within 30 days from today with intimation to the Nazir of this Court. Upon the aforesaid amount being deposited, SBI Branch is directed to release Rs. 93,380/ with interest to the petitioner no.1 by transferring the same to his Saving Bank Account after keeping the remaining amount in a fixed deposit in the following manner in his name.
a) Rs. 1,00,000/ in his name for a period of two years.
b) Rs. 1,00,000/ in his name for a period of three years.
c) Rs. 1,00,000/ in his name for a period of five years.
The share of petitioner no. 2 and 3 be kept in fixed deposit account in their respective names till they attain the age of 18 years.
25. The interest on the aforesaid fixed deposits shall be paid monthly by automatic credit of interest in the respective Savings Account of the beneficiaries.
26. Withdrawal from the aforesaid account shall be permitted to the beneficiaries after due verification and the Bank shall issue photo Identity Card to the beneficiaries to facilitate identity.
27. No cheque book shall be issued to the beneficiaries without the permission of this Court.
28. The original fixed deposit receipts shall be retained by the Bank in the safe MACP No. 18/09 ( Page no 11 of 11) -:12:- Joginder vs. M/s. Vikas Road Carriers custody. However, the original Pass Book shall be given to the beneficiaries along with the photocopy of the FDRs. Upon the expiry of the period of each FDR, the Bank shall automatically credit the maturity amount in the Savings Account of the beneficiaries.
29. No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the prior permission of this court.
30. On the request of the beneficiaries, bank shall transfer the Savings Account to any other branch according to their convenience.
31. The beneficiaries shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit Account.
32. R2 shall inform the petitioners through registered post that the cheque of the awarded amount are being deposited so as to facilitate them to collect their cheques.
33. Copy of the award be supplied to both the parties at free of cost.
34. File be consigned to Record Room.
ANNOUNCED IN OPEN COURT (AMAR NATH)
DATED:16/11/2012 PRESIDING OFFICER,
MOTOR ACCIDENTS CLAIMS TRIBUNAL,
DWARKA COURTS, NEW DELHI.
MACP No. 18/09
( Page no 12 of 12)