Delhi District Court
Smt. Anita & Ors vs . Sh. Vijay & Ors on 24 August, 2013
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Smt. Anita & Ors vs. Sh. Vijay & Ors
IN THE COURT OF SH. AMAR NATH
PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS TRIBUNAL,DWARKA
COURTS, NEW DELHI
IN THE MATTER OF : SUNITA DEVI VS. JAIBIR SINGH
M.A.C.P NO. 07/10
1 Smt. Anita
W/o Late Sh. Surender Kumar
2 Master Nitin Kumar (aged about 15 years)
S/o Late Sh. Surender Kumar
3 Ms. Shivani ( aged about 16 years)
D/o Late Sh. Surender Kumar
4. Ms. Aishna (aged about 6 years)
D/o Late Sh. Surender Kumar
5. Master Jatin (aged about 5 years)
Late Sh. Surender Kumar
All residents of : 96, JBlock, Jahangirpuri, Delhi
Petitioner no. 2 to 5 through their mother Smt. Anita being natural guardian.
.........Petitioners
Through Advocate Sh. S.B Pandey,
Chamber no. 318, Western wing, Tis Hazari Courts,
Delhi 110054
Versus
1 Sh. Vijay Kr. Yadav, ( Driver)
S/o Sh. Ram Dayal Yadav,,
R/o Village & P.O. Baheri, P.S Sswash,
Distt. Darbhanga (Bihar)
Also at :
Smt. Anita & Ors vs. Vijay Kr.Yadav & Ors.
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Smt. Anita & Ors vs. Sh. Vijay & Ors
Aakash Transport Service,
Badkhalsa Mod, Main G.T Karnal Road,
Sonepat, Haryana. (Driver)
2 Sh. Rakesh Kumar, S/o Sh. Raj Pal Singh ( Owner)
R/o H. No. 20, Village Pitampura,
Distt. Sonepat, Haryana.
3 Reliance General Insurance Co. Ltd., (Insurer)
38B, Jawaharlal Nehru Road,
8th Floor,Kolkata, W.B
Insurance Policy No. 1501992334108632 .......Respondents
1. Date of institution: 11/01/10
2. Date of framing of issues: 31/07/2010
3.Date of hearing arguments :16/08/2013
4. Date of decision: 24/08/2013 AWARD/ JUDGEMENT:
1. The present petition was filed by the widow (petitioner no.1) and four minor children (petitioners no.2 to 5) of the deceased Surender Kumar who met with an accident occurred on 09.11.2009 being driven by respondent no.1 (in short R1) which was owned by respondent no.2 (in short R2) and the same was insured with the respondent no.3 (in short R3).
2. Brief facts of the case are that on 09.11.2009 Sh. Surender Kumar Smt. Anita & Ors vs. Vijay Kr.Yadav & Ors.
2 of 15 -:3:- Smt. Anita & Ors vs. Sh. Vijay & Ors (hereinafter the deceased) was boarded the Milk Van Mahindra Champion carrier bearing no. DL 1L G3191 from Rohini to reach Daula Kuan via Naraina in the course of discharging his official duties. At about 5.00 a.m, on that day when deceased along with his fellow employee reached at Naraina Ring Road Flyover, then the Canter bearing no. HR69A 0373 (hereinafter the offending vehicle) dashed against the vehicle of the deceased after coming from behind which was being driven by its driver /R1 at very fast speed in rash & negligent manner. As a result of which deceased fell down from the vehicle on the road and sustained fatal injuries. From the place of accident, he was taken to Safdarjung Hospital, New Delhi, where he was declared by the Doctors on duty as brought dead.
3. Pursuant to the service of the notice of the claim petition, R1 failed to file the written statement despite several opportunities and thus, his right to file the written statement was struck off vide order dated 30.07.2010 and he was set to exparte also vide order dated 08.11.2010. R2 in its written statement denied the factum and manner of the accident pleading that the accident did occur owing to the sole negligence of the driver of the Mahindra Champion Carrier as referred to above and as such, no liability can be fastened on him. It is not out of place to mention here that he chose to remain absent from the proceedings after filing the written statement and hence, he was also proceeded exparte vide order dated 08.11.2010.
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4. The claim petition has been resisted by the insurance company after filing a separate written statement and took the numerous preliminary objections. However, it has been admitted that the offending vehicle was insured with it in the name of R2 vide policy no. 1501992334108632 valid for the period from 03.11.2009 to 02.11.2010 subject to terms and conditions of the policy issued by it. An exorbitant amount is claimed without any justification.
5. On the basis of pleadings of parties, issues were framed on 31.07.2010. An interim award was also passed in favour of the petitioners on the same date.
6. Having heard the rival contentions on behalf of both the sides and after perusal the material including the evidence on record, my issuewise finding are as under: ISSUE NO.1 Whether Sh. Surender Kumar died due to rash/ negligent driving of Vehicle no. HR69A0373 by R1? OPP
7. The onus to prove the issue was on the petitioners. In order to discharge the same, PW2 Sh. Rajesh Kumar being the witness of the accident had narrated the sequence of accident on oath to show as to how and in what manner the accident did take place. His deposition has not been controverted by the respondent no.1 & 2 as they Smt. Anita & Ors vs. Vijay Kr.Yadav & Ors.
4 of 15 -:5:- Smt. Anita & Ors vs. Sh. Vijay & Ors chose to stay away from the proceedings and hence, no question was put to him on the aspect of negligence. During the crossexamination on behalf of the insurance company, he stated that their vehicle had taken little turn with the impact of the hit of the offending vehicle. The driver ran away from the spot after leaving the offending vehicle there. The deceased succumbed to his injuries immediately after the accident. He intimated to the Police in respect of the accident. Their vehicle was running at the speed of 25 KMPH. His statement assumes an importance as the FIR was registered on his statement which finds mentioned the number of the offending vehicle HR69A 0373.
8. Besides this, the petitioners have proved the certified copies of the criminal record viz. charge sheet is Ex. PW 1/3, FIR is Ex. PW1/4, site plan is Ex. PW 1/5, Mechanical Inspection Report is Ex. PW 1/7, Postmortem report is Ex. PW 1/8 to establish the factum of accident.
9. The standard of proof in a claim petition is not as rigid and as high, as is in a criminal case. In a criminal case proof beyond reasonable doubt is required, however, in a claim petition it is not so.
10. 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 Smt. Anita & Ors vs. Vijay Kr.Yadav & Ors.
5 of 15 -:6:- Smt. Anita & Ors vs. Sh. Vijay & Ors 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 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."
11. The aforesaid observations were quoted with approval by the Hon'ble Apex Court in Parmeshwari Vs. Amir Chand and others 2011 (1) SCR 1096 (Civil Appeal No. 1082 of 2011).
12. Having regards to these fact and circumstances, I am of the opinion that petitioner has been able to establish that accident did take place due to negligence of driver of the offending vehicle on the given date, time and place. Issue No.1 is decided in favor of the petitioner accordingly.
13. In view of the above discussions, this issue is decided in favour of the petitioner and against the respondents.
ISSUE NO.2 Whether the petitioners are entitled to claim compensation, if so, what amount and from whom? ...OPP Smt. Anita & Ors vs. Vijay Kr.Yadav & Ors.
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14. As issue no. 1 is decided in affirmative in favour of petitioners, therefore, the quantum of compensation is required to be calculated.
15. It has been specifically averred in the affidavit Ex PW1/A by Smt. Anita being wife of the deceased that there is no other legal heir of the deceased except the petitioners. I have no hesitation to accept the above averments of the affidavit as nothing contrary has been shown or produced.
16. In order to prove the income of the deceased, PW 1 during the course of her deposition had averred that her husband was a Salesman cum Driver and his salary was Rs.15,000/ per month at the time of accident. He was also entitled to increase the amount in salary towards future prospects on account of rise in price index. He was contributing his entire income towards house hold expenses.
17. In so far the selection of the multiplier is concerned, choice of multiplier is determined by the age of the deceased or that of the claimants whichever is higher. Our own Hon'ble High Court has dealt with this proposition in MAC Appeal bearing no. 1148 of 2011 Vijay laxmi & anr. v/s Binod Kumar Yadav & Ors. vide judgment dated 3.1.2012 after relying upon the following judgments of a bench comprises of 3 Judges of Hon'ble Supreme Court;
i) UP State Road Transport Corporation & Ors.
v/s Trilok Chandra & Ors, (1996) 4 SCC 362
ii) New India Assurance Co. Ltd v/s Shanti Pathak (Smt.) & Ors., (2007) 10 SCC
1 wherein case of the death of a bachelor who was aged only 25 years, the multiplier of Smt. Anita & Ors vs. Vijay Kr.Yadav & Ors.
7 of 15 -:8:- Smt. Anita & Ors vs. Sh. Vijay & Ors 5 was applied according to the age of the mother of the deceased who was about 65 years at the time of accident. Turning to the case in hand, the petitioners have relied upon the Ration Card Ex. PW 1/1 which finds mention the age of the deceased 27 years as on 24.06.1997. If his age is calculated on that basis, then it came to about 39 years plus. Accordingly, an operative multiplier shall be 15 as per the law laid down in Sarla Verma v/s DTC and another (2009) 6 SCC 121.
18 PW 3 Sh. Surender Singh had deposed that he knew the deceased Surender who was working in his shop in the capacity of Salesman cum Driver since November 2008. He used to pay him Rs.15,000/ per month. He proved his salary certificate Ex. PW 11/2 after identifying his signature thereon at point A. He produced the original register of employment and renumeration (Under Delhi Shops and Establishment Act & Rules) wherein the name of the deceased is mentioned. Relevant page of the said register is Ex. PW 3/A showing that the deceased did receive the salary of Rs.15,000/ on 31.10.2009 after signing upon the Revenue Stamps affixed thereon. On being cross examined by the counsel for the insurance company, he stated that he can identify the signature of Surender Singh (deceased) appearing on at point A as he did sign in his presence. Since, he had deposed in the capacity of the independent witness, therefore, his testimony has to be acted upon. Furthermore, his testimony remained uncontroverted as nothing contrary proved or shown.
19. A bench comprises of three judges of Hon'ble Supreme Court passed a Smt. Anita & Ors vs. Vijay Kr.Yadav & Ors.
8 of 15 -:9:- Smt. Anita & Ors vs. Sh. Vijay & Ors judgment of the case titled as Rajesh & others Vs. Rajbir Sijngh & others in C. A. No. 3860/2013 (Arising out of SLP (C) No. 24825/2010) on 12/04/2013 wherein their Lordships observed with regard to the future prospects of the accidental death of the victim. Relevant portion of the judgment is reproduced as under: Since, the Court in Santosh Devi's case (supra) actually intended to follow the principle in the case of Salaried person as laid in Sarla Verma's case (supra and to make it applicable also to the selfemployed and persons on fixed wages. It is clarified that the increase in the case of those groups is not 30% always; it will also have a reference to the age. In other words, in the case of self employed or persons with fixed wages, in case, the deceased victim was below40 years, there must be an addition of 50% to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any, Addition should be 30% in case the deceased was in the age group of 40 to 50 years.
In Sarla Verma's case (supra), it has been stated that in the case of those above 50 years, there shall be no addition. Having regard to the fact that in the case of those selfemployed or on fixed wages, where there is normally no age of superannuation, we are of the view that it will only be just and equitable to provide an addition of 15% in the case where the victim is between the age group of 50 to 60 years so as to make the compensation just, equitable, fair and reasonable. There shall normally be no addition thereafter.
20. The deceased has left behind his widow and four children as his legal Smt. Anita & Ors vs. Vijay Kr.Yadav & Ors.
9 of 15 -:10:- Smt. Anita & Ors vs. Sh. Vijay & Ors heirs. 1/4 deduction towards the personal living expenses have to be made. I find support of my view from the judgment of Sarla Verma ( supra). The average income of the deceased under the heads of loss of dependency is commuted as under : A) Salary of the deceased Rs. 15,000/ B) 50% Addition towards future prospects Rs. 7,500/ Rs. 22,500/ C) Less TDS @ 10% Rs. 2,250/ Rs.20,250/ D) 1/4 deductions on personal living expenses Rs.05,062.5/ Rs.15,187.5/
21. Keeping in view the above discussions, following sum shall be just compensation:
1 Loss of dependency (15,187.5 X12X15)= Rs. 27,33,750/ 2 Loss of Love and affection* = Rs. 1,00,000/ 3 For funeral expenses = Rs. 25,000/ 4 Loss of estate = Rs. 10,000/ 5 Loss of consortium = Rs. 1,00,000/ _______________________________________________________________________ Total Rs. 29,68,750/ (Rs. Twenty Nine lakhs, Sixty Eight Thousand, Seven Hundred and Fifty only.) It includes the amount of interim award also.
*Under the head of loss of love and affection only1,00,000/ (in total to all the claimants) is granted.
**'Funeral expenses' in the absence to contrary for higher expenses, to award at least an amount of Rs. 25,000/ Smt. Anita & Ors vs. Vijay Kr.Yadav & Ors.
10 of 15 -:11:- Smt. Anita & Ors vs. Sh. Vijay & Ors *** 'Loss of Consortium' judgment of Apex Court delivered in Rajesh & Ors. (Supra) is relied upon.
INTEREST
22. There is no material on record to withhold the interest and as such, the petitioners are awarded interest @ Rs. 7.5% per annum from the date of filing of petition i.e. 11/01/2010 till realization.
APPORTIONMENT
23. Rs. 2,50,000/ with interest shall be given to the petitioners no. 2 to petitioners no. 5 whereas petitioner no. 1 shall be entitled Rs.19,68,750/ with interest including the amount of interim award.
LIABILITY
24. No evidence was led on behalf of the respondents including the insurance company to deny the liability. Admittedly the offending vehicle was being driven by R1 which was owned by R2 and the same was insured with R3. R1 is the principal tort feasor. R2 & R3 are vicariously liable. All the respondents are held jointly and severally liable to pay the awarded amount. Since the vehicle was insured with R3, therefore, it shall pay the awarded amount.
25. In view of the above discussions, issue no. 2 is decided in favour of the petitioners and against the respondents.
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26. Issue No.2 is decided in favor of the petitioner accordingly. ISSUE NO. 3
Relief.
27. In view of the findings on issues no. 1 and 2, the petitioners are awarded Rs. 29,68,750/ (Rs. Twenty Nine lakhs, Sixty Eight Thousand, Seven Hundred and Fifty only.) with interest which includes the amount of interim award.
28. The awarded amount of Petitioner no.1 be deposited by R3 in her Account no. 20433242304 with Allahabad Bank at Timarpur, New Delhi, Branch Code 394, IFSC code ( to be furnished) within 30 days from today either directly or through RTGS or by NEFT mode under intimation ( with proof of notice to the claimant & her counsel) to the Nazir of this Court. Upon the aforesaid amount being deposited, Allahabad Bank Branch is directed to release Rs.3,18,750/ to petitioner no. 1 with interest by transferring the same to her Saving Bank account in her name after keeping the remaining amount in the shape of FDR in the following manner:
a) Rs. 2,00,000/ in the name of petitioner no. 1 for a period of 1 years.
b) Rs. 2,00,000/ in the name of petitioner no. 1 for a period of 2 years.
c) Rs. 2,00,000/ in the name of petitioner no. 1 for a period of 3 years.
d) Rs. 2,00,000/ in the name of petitioner no. 1 for a period of 4 years.
e) Rs.2,00,000/ in the name of petitioner no. 1 for a period of 5 years.
f) Rs.2,00,000/ in the name of petitioner no. 1 for a period of 6 years.
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g) Rs.2,00,000/ in the name of petitioner no. 1 for a period of 7 years.
h) Rs.2,00,000/ in the name of petitioner no. 1 for a period of 8 years.
The amount of petitioners no. 4 and 5 shall be kept in FDR in their respective names & accounts till they attain the age of 18 years. The awarded amount of Petitioner no. 2 be deposited by R3 with Allahabad Bank, Timarpur, New Delhi in the account bearing no.50138360851 having branch code no. 394 IFSC code which is to be furnished and awarded amount of petitioner no5 be deposited with United Bank of India, 108, Banarsi Das Estate, New Delhi110007 in the account bearing no. 0320019189443 IFSC code no. UTBI0TIM7056 within 30 days from today either directly or through RTGS or by NEFT mode under intimation ( with proof of notice to the claimants & their counsel) to the Nazir of this Court. One lakh each is ordered to be released to claimants no. 2 & 3 by transferring the same in their respective saving bank account after keeping the amount of Rs.1,50,000/ in their respective names and accounts for a period of two year.
29 On the request of the beneficiaries, Bank shall transfer the Savings Account to any other branch according to their convenience.
30. The interest on the aforesaid fixed deposits shall be paid monthly by automatic credit of interest in the respective Savings Account of the beneficiaries. Smt. Anita & Ors vs. Vijay Kr.Yadav & Ors.
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31. Withdrawal from the aforesaid account shall be permitted to the beneficiaries after due verification and the Bank shall issue photo Identity Cards to the beneficiaries to facilitate identity.
32. No cheque books shall be issued to the beneficiaries without the permission of this Court.
33. The original fixed deposit receipts shall be retained by the Bank in the safe 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.
34. No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the prior permission of this court.
35. On the request of the beneficiaries, Bank shall transfer the Savings Account to any other branch according to their convenience.
36. R3 shall inform the petitioners through registered post that the cheques of the awarded amount are being deposited so as to facilitate them to know about their deposit in the bank referred to above.
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37. Copy of the award be supplied to both the parties at free of cost. Copy of this award be sent to the Nodal Officer of the Bank with Court stamped photographs of the claimant and their signatures along with identity proof documents.
38. File be consigned to Record Room.
ANNOUNCED IN OPEN COURT (AMAR NATH)
DATED: 24.08.2013 PRESIDING OFFICER,
MOTOR ACCIDENTS CLAIMS TRIBUNAL,
DWARKA COURTS, NEW DELHI
(All pages are signed)
(1+1)
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