Delhi District Court
Smt. Sajda Parveen @ Sanjida W/O Late Sh. ... vs Sh. Rakesh Kumar S/O Sh. Raj Singh on 22 January, 2010
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IN THE COURT OF SHRI GURVINDER PAL SINGH
JUDGE, MOTOR ACCIDENT CLAIMS TRIBUNAL(WEST)
TIS HAZARI COURTS,DELHI
(Suit No. 344/09)
1.Smt. Sajda Parveen @ Sanjida w/o Late Sh. Unush Anshari
2. Modh. Sahjad s/o Late Sh. Unush Anshari
3. Mohd. Raja s/o Late Sh. Unush Anshari
4. Mohd. Sahnawaj s/o Late Sh. Unush Anshari
5. Ms. Seema Parveen d/o Late Sh. Unush Anshari
6. Mohd. Sohrab s/o Late Sh. Unush Anshari
7. Smt. Naj Parveen w/o Mohd. Ashlam Anshari
R/o Village Safiganj, P.O.Warishganj, District Nawada (Bihar)
Petitioners No.5 & 6 are minor under Guardianship of
petitioner No.1 mother and all petitioners No.1 to 6 R/o Village
Dost Ali Bigha, H.No.17, P.O. Pakribaravo, Distt. Nawada(Bihar)
and presently r/o 215, 216, Gaurav Hardware, Rani Khera Mor,
Mundka, New Delhi 110041.
...... Petitioners
VERSUS
1. Sh. Rakesh Kumar s/o Sh. Raj Singh,
r/o G-10, near Sector-6, Patel Nagar,
Bahadurgarh, District Jhajjar(Haryana)
Also at: C/o Fore Group India r/o Plot No.236-37
M.I.E, Phase I, Bahdurgarh, District Jhajjar(Haryana) (Driver)
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2. M/s Fore Group India,
R/o Plot No.236-37, Phase-1,
M.I.E. Bahadurgarh, Distt. Jhajjar (Haryana)(owner)
3. National Insurance Co. Ltd.
Regional Office-Ist, 4th Floor,
Jeewan Bharti Building Connaught Place,
New Delhi-110001. (Insurer)
....... RESPONDENTS
Date of filing of the petition : 24/07/06 When reserved for judgment : 12/01/10 Date of final judgment/ award : 22/01/10. JUDGMENT / AWARD
Petitioners have claimed compensation of Rs. 10,00,000/-( Rupees Ten Lacs) vide claim petition u/s 166 & 140 of the Motor Vehicles Act,1988 for fatal injuries sustained by Sh. Unush Ansari on 06/05/06 at about 1 p.m near Swaran Park,Bus Stand at Rohtak Road,Delhi within area of P.S. Nangloi , when the deceased was coming on Vikram Tempo and the TATA Tempo No. HR-63-4753, driven by respondent No.1 rashly and negligently hit the vehicle Vikram of deceased from behind, causing turning turtle of the vehicle of deceased and serious injuries on the person of deceased. 3
2. Respondent No.1, 2 and 3 are the driver, owner and insurer respectively of the offending vehicle.
3. Respondents were summoned and served.
4. All the respondents filed the written statements and denied the claim of the petitioner.
5. Respondent No.3, however, admitted the fact that vehicle No. bearing No. HR-63-4753 was insured with it vide Policy No. 421700/31/05/6300001133 from 31/12/05 to 30/12/06 valid from 31/12/05 to 30/12/06.
6.Vide order dt 27/02/07 of my Ld.Predecessor petitioner No.1was awarded interim compensation of Rs. 50,000/-.Also vide ordersdt.27/02/07 of my Ld. 4 predecessor, following issues were framed:-
1. Whether the deceased Unush Ansari @ Yunish Bhai had sustained fatal injuries on 06.05.2006 at about 1 p.m near Swarn Park Bus Stand on Rohtak Road due to rash and negligent driving of respondent no.1 while driving offending vehicle no. HR-63-
4753(TATA Tempo)?
2. Whether the petitioners are entitled to any compensation, if so, to what amount and from whom?
3. Relief.
7. Petitioner No.1 as PW-1 and Sh. Kaushal Kumar as PW-2 are the examined petitioner witnesses.
8. Sh. Dhruv Nanda is the sole respondent witness examined by insurer as R3W1.
9. I have heard submissions of Ld. Counsels for the parties, perused 5 the record and given my thoughts to the contentions put forth. My issue-wise findings are as under:-
ISSUE NO.1
10. PW-2 testified that he was driving Vikram Tempo No. DL-1LF4859 at slow speed on correct left side of the road. The deceased UnushAnsari @ Yunish Bhai Laden was sitting in his tempo which was having the goods. Then TATA Tempo No. HR -63-4753, driven by respondent No.1 rashly and negligently hit the Vikram Tempo from behind, causing the Vikram Tempo/TSR turning turtle on the road and the deceased sustaining serious injuries. The deceased was taken to Sonia Hospital, Nangloi where he was declared brought dead.
11. Neither the respondent No.1 stepped into the witness box to testify in contrary to the version of PW-2 nor is there any other evidence on record to disbelieve or discredit the version of PW-2, either in toto or in particular.
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12. A driver of a mechanically propelled vehicle is under bounden duty to observe necessary caution for avoiding striking other vehicles, persons, the users of the road ahead. Having failed to observe such necessary care and caution, being oblivious of said duty, respondent No.1 was berserk locomotion since he struck the vehicle of the deceased at the spot causing him fatal injuries. Respondent No.1 was thus negligent.
13. The version of PW-2 is lent corroboration by the version and information provided in the Accident Information Report in form-54 wherein the particulars of the driver of the offending vehicle, name of respondent No.1 is written and AIR aforesaid is accompanied by the criminal case documents including FIR No. 425/06 u/s 279/304-A IPC, P.S. Nangloi.
14. As per the copy of the post mortem report, Ex. PW1/5 on the body of the deceased, the cause of death has been opined to be ' shock and Asphyxia as a result of B/L lungs injury'.
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15. Above discussion leads me to the conclusion that petitioners have been able to prove that deceased Sh. Unush Ansari @ Yunish Bhai had sustained fatal injuries due to said rash and negligent driving on the part of respondent No.1. Accordingly, issue No.1 is decided in favour of the petitioners and against the respondents.
ISSUE NO. 2
16. The appropriate method of calculating the compensation in fatal cases is multiplier method. In catena of decisions, the Hon'ble Supreme Court of India had held that in India the multiplier method is appropriate for calculation of compensation. It was so enunciated by their Lordship Wright in "Davies Vs. Powell Duffregn Associated Collieries Ltd" reported in 1942 AC601, that the appropriate method to calculate compensation is the multiplier method. In the cases of 'General Manager, Kerela State Road Transport Corporation, Trivendram Vs Susamma Thomas (Mrs.) & Ors', (1994) 2 SCC 176; ( 2 ) 'Managing Director, TNSTC Ltd. Vs K.I. Bindu & Ors'. (2005) 8SCC 473; (3) 'Gobald Motor Service Ltd. & Anr Vs RMK Veluswami & Ors', AIR 1962 SC 1 and of late, in the case of 'Syed 8 Basheer Ahamad & Ors. V Mohd Jameel and Anr'. in Civil Appeal No. 10 of 2009, decided by the Division Bench of the Hon'ble Supreme Court on 06/01/2009, also in the case of ' Smt. Sarla Verma & ors Vs. Delhi Transport Corporation & Anr, reported in III (2009) ACC 708 (SC), decided by the Division Bench of the Hon'ble Supreme Court on 15/04/09, the payment of compensation in lump-sum to legal representatives of deceased by multiplier method has been approved.
17. Starting point for calculating amount of compensation to be paid to dependents of deceased in a motor accident claim is the amount of monthly income which the deceased was earning; then there is an estimate of what was required for his personal and living expenses. The balance will generally be turned into lump sum by taking certain number of years of purchase. The choice of multiplier is ascertained by the age of the deceased or that of the claimant whichever is higher.
9THE MULTIPLICAND
18. PW-1, testified that her husband was in private service and earning Rs. 5000/- per month as salary.
19. Petitioners have neither placed on record any document for employment or monthly earnings or qualification of deceased nor have proved the same. In absence of any cogent evidence of monthly earnings of the deceased, the monthly income of the deceased is determined on the basis of the minimum wages notified under the Minimum Wages Act by the Delhi Government in the category of an unskilled person, which was Rs. 3271/- on the day of accident.
20. Noting that to neutralize increase in cost of living and price index, minimum wages are increased from time- to-time. Minimum wages tend to increase by 100% every 10 years.
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21. It is now well settled that while estimating future loss of income, the Court has to take into account increase in minimum wages due to inflation and rise in price index. [ See (1) K. Narsimha Murthi V. The Manager, Oriental Insurance Co. Ltd. & Anr.,reported in 2004 ACJ 1109; (2)Oriental Insurance Co. Ltd. Vs. Vijay Kumar Mittal, reported in III(2007)ACC 676 and (3) Santosha Devi Vs. Abdul Kareem & ors, in MAC Appeal No.440/2009, decided on 08/10/09 by Hon'ble Mr. Justice J. R. Midha]
22. Thus, Tribunal has to consider future increase in minimum wages of deceased while awarding compensation to dependents of deceased.
23. Benefit of future increase in the income of the deceased is to be given. Thus mean average income of the deceased is determined as Rs. 4906/50 p. per month [{minimum wage+ double the minimum wage} divided by 2] for purpose of computation of compensation in this case. 11
24. Since petitioner No.1 the widow of the deceased; petitioners No. 2 to 7, the children of the deceased, six in number are stated to be dependent on the earnings of the deceased as on the date of accident,in all there are seven dependents on the earnings of the deceased.
25. In terms of law laid by the Apex Court in the case of Smt. Sarla Verma & Ors (Supra), since there were seven dependents on the earnings of the deceased, the deduction towards personal and living expenses of the deceased, would be one-fifth (1/5th ), out of his monthly earnings. The deduction towards the personal and living expenses of the deceased out of his said monthly income would be Rs. 981/30 p.( Rs. 4906/50 p. divided by
5). The loss of monthly dependency to the legal representatives of the deceased accordingly is Rs. 3925/20.p(Rs. 4906/50 p minus Rs.981/30 p.). MULTIPLIER
26. As per the copy of Identity Card of Election Commission of India, petitioner No.1 was of age 35 years as on 01/01/02. She was accordingly of 12 age 39 yars as on the date of accident.
27. As per PW-1, petitioners No.2 to petitioner No.7 were of ages 23 years; 21 years; 19 years; 18 years; and 12 years and 25 years respectively as on the date of accident.
28. As per, Ex. PW1/2, the copy of Identity Card of Election Commission of India, the deceased was of age 40 years as on 01/01/04. As on the date of accident,accordingly petitioner was of age 42 years plus. I take the age of deceased as on the date of accident as 43 years accordingly.
29. In terms of the law laid by the Apex Court in case of 'Sarla Verma & Ors (Supra) and considering the age 43 years of deceased, the multiplier of 14( for the age group of 41 to 45 years), is to be applied.
30. The total loss of dependency of the petitioners would accordingly be Rs. 6,59, 500/-(Rs. 3925/20 p.x 12x 14).
13COMPENSATION FOR LOSS OF CONSORTIUM
31. In terms of law laid by the Apex Court in the case of Smt. Sarla Verma & Ors (Supra), the claimant, the widow of deceased, petitioner No.1 is entitled to sum of Rs. 10,000/- under the head of loss of consortium. COMPENSATION FOR LOSS OF ESTATE 32 In terms of law laid by the Apex Court in the case of Smt. Sarla Verma & Ors (Supra), the claimants are entitled to sum of Rs. 10,000/- under the head of loss of estate.
COMPENSATION TOWARDS FUNERAL EXPENSES
33. In view of the law laid by the Apex Court in the case of Smt. Sarla Verma & Ors (Supra) , the claimants are entitled to Rs. 5,000/- under this head.
COMPENSATION FOR LOSS OF LOVE AND AFFECTION.
34. No amount would suffice to compensate the loss of love and affection to petitioners. Yet, relying upon the pronouncements of Hon'ble Mr. Justice J. R. Midha in case of ' Rajesh Tyagi & ors Vs. Jaibir Singh & Ors as 14 FAO No. 842/2003, orders dated 08/05/09, the claimants, seven in number, are entitled to sum of Rs. 10,000/- each i.e., totalling Rs. 70,000/- as loss of love and affection.
REIMBURSEMENT OF CHARGES OF TRANSPORTATION OF BODY OF DECEASED.
35. The petitioners are entitled for reimbursement of ambulance charges of Rs. 500/- as per Ex. PW1/3, for the money spent on transportation of body of deceased.
36. In view of the above discussion, the total compensation to which the petitioners are entitled to comes as under:-
1. Compensation for Loss of dependency Rs. 6,59,500/-
2. Compensation for loss of consortium Rs. 10,000/-
3. Compensation for loss of estate Rs. 10,000/-
4. Compensation for funeral expenses Rs. 5,000/-
5. Compensation for loss of love and affection Rs. 70,000/-
6. Reimbursement of money spent on transportation of body of deceased Rs. 500/-
_____________ Rs. 7,55,000/-
Less Interim Compensation - Rs. 50,000/-
Balance payable sum ______________
Rs. 7,05,000/-
______________
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LIABILITY
37. Ld. counsel for insurer argued that since the vehicle in question was plied without any permit, insurer was not liable to pay the compensation sum.
38. R3W1 testified that he was Record Clerk of Insurance Company Limited. He stated that despite notices, Ex. R3W1/1 and Ex. R3W1/2, sent vide postal receipts, Ex. R3W1/3 and Ex. R3W1/4 neither the owner nor the driver submitted the documents sought to be produced and since the vehicle in question was plied by the owner without any permit, insured committed violation of the terms and conditions of the policy, Ex. R3W1/5.
39. R3W1 categorically admitted that his work in the company was for maintaining the record, while issuance of policy, issuance of directions to counsels appointed was not his work. Such work was of Sh. Narender Wadhavan his Administrative Officer. R3W1 in the cross-examination 16 admitted that he had not instructed the insurer counsel for issuance of notice to the driver or insured and they were not having any proof of service of the notices on the addressees.
40. Alongwith the Accident Information Report filed by the officers of the Investigating Agency in form-54, the attested copy of the receipt of transport department, Govt. of NCT of Delhi 5/9, Underhill Road, Delhi has been filed with receipt No. 1611173 dated 18/01/06 of Rs. 1000/-, having C. S. No. 79624 and permit no. 136/J/2005 of vehicle No. HR-63 4753, counter signed for Delhi State w.e.f. 18/01/06 to 17/05/06.
41. In terms of law laid in the case of National Insurance Company Ltd Vs Swaran Singh & Ors reported in 2004 A CJ 1, it is trite that where the insurers relying upon the violations of the provisions of law by the assured takes an exception to pay the assured or third party , they must prove a willful violation of the law by the assured.
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42. The insurer has not summoned any official of the transport department for production of any permit record. In terms of Rule 7 of the Motor Accidents Claims Tribunal Rules, 2008, the information provided in the Accident Information Report in form-54 is presumed to be correct till proved to the contrary. Accordingly, since the insurer has not examined any official from the transport department of Govt. of NCT of Delhi with permit record of the vehicle in question, so as to prove any breach of any term and condition of the policy, it cannot be said that either insurer can be exonerated from the liability or the insurer is entitled for any recovery rights. Accordingly insurer is liable to pay the compensation sum to the claimants/ petitioners.
43. In view of the aforesaid discussions, it is hereby held that petitioners are entitled to Rs. 7,05,000/-as compensation alongwith interest @ 7.5 % per annum from the date of filing of the petition till its realization from the respondents, payable by the insurer, respondent No.3 Relief
44. In view of the above discussions, issue No.3 is decided in favour 18 of the petitioners and against the respondents. Petitioners are thus, entitled to Rs. 7,05,000/- as compensation alongwith interest 7.5% per annum from the date of filing of the petition till its realization from the respondents, payable by insurer, respondent No.3.
APPORTIONMENT OF COMPENSATION
1.Smt. Sajda Parveen @ Sanjida (wife) Rs. 3,05,000/-
2.Modh. Sahjad (son) Rs. 50,000/-
3.Mohd. Raja (son) Rs. 50,000/-
4. Mohd. Sahnawaj (son) Rs. 50,000/-
5. Ms. Seema Parveen (unmarried daughter) Rs. 1,00,000/-
6. Mohd. Sohrab (minor son) Rs. 1,00,000/-
7. Smt. Naj Parveen ( daughter) Rs. 50,000/-
45. Since the amount awarded should not be frittered away by beneficiaries owing to the ignorance, illiteracy etc., the Hon'ble Supreme Court of India in a case titled 'G. M. Kerala State Road Transport Corporation Vs. Susamma Thomas' reported in 1994(2) SCC 176, has laid guidelines pronouncing that in a case of compensation for death, it is appropriate that Tribunals do keep in mind the principles enunciated by this court in 'Union Carbide Corporation Vs. Union of India', 1991(4) SCC 584, in the matter of appropriate investments to safeguard the feed from being 19 frittered away by the beneficiaries owing to ignorance, illiteracy and susceptible to exploitation. Guidelines inter alia included of investment of share of the claimants in FDRs in nationalized banks with conditions that bank will not permit any loan or advance on the fixed deposits and interest on the amount invested is paid monthly / periodically directly to the claimant and such investment may be made in more than one fixed deposit. In case of any exigency, claimants are at liberty to apply to Tribunal for withdrawal of such investment.
46. In terms thereof, out of the award amount, 50% amount of petitioner No. 1 be invested in shape of two FDRs of equal (almost) in the name of the said claimant/ petitioner for a period of 7 years in State Bank of India. Out of the award amount, 50% amount of petitioners No. 2,3,4,5 & 7 be invested in shape of one FDR each in the name of the said claimants/ petitioners for a period of 3 years in State Bank of India. The award amount of petitioner No. 6(minor son of deceased) be invested in shape of FDR in the name of the said claimant / petitioner till he attains the age of majority in 20 State Bank of India. The FDRs shall have no facility of loan or advance. Petitioners can withdraw the interest monthly. Minor petitioner can so withdraw interest through her guardian mother, petitioner No.1. However, petitioners/claimants are at liberty to take steps for premature encashment in case of exigency, as per law laid before this Tribunal.
47. State Bank of India,Tis Hazari, has agreed to open Special Fixed Deposit Accounts for the victims of road accidents.
48. Aforesaid fixed deposits are to be made by State Bank of India, Tis Hazari in the following manner:-
(1) The State Bank of India,Tis Hazari, shall open separate Savings Accounts in the name of claimants and the entire interest on the aforesaid fixed deposits be credited in the said accounts.21
(2) The interest on the aforesaid fixed deposits shall be paid monthly by automatic credit of interest in the Savings Accounts. (3) Withdrawal from the aforesaid account shall be permitted to the claimants after due verification and the Bank shall issue photo identity Card /Pass Books with attested photographs to claim to facilitate their identity.
(4) No cheque book be issued to the claimants without the permission of this Court.
(5) Half yearly statement of account be filed by the Bank in this Court.
(6) The original FDRs shall be retained by the Bank in the Safe custody. However, the original Pass Book shall be given to the claimants alongwith the photocopy of the FDRs. (7) The original Fixed Deposit Receipts shall be handed over to the claimants at the end of the fixed deposit period. (8) No loan, advance or withdrawal shall be allowed on the said FDRs without the permission of this Court. 22 (9) On the request of the claimants, the Bank shall transfer the Savings Account to any other branch of State Bank of India according to the convenience of the claimants.
49. Respondent No.3, The National Insurance Co. Ltd is directed to deposit the cheques in the names of the petitioners/claimants within 30 days.
File be consigned to Record Room.
Announced in open court (Gurvinder Pal Singh)
today i.e. 22/01/10 Judge, MACT(West)
Delhi.