Delhi District Court
Inderjeet Kaur D/O Late Sh. Jasbir Singh vs Sh. Manoj Kumar S/O Sh. Satinder Singh on 11 October, 2012
IN THE COURT OF SH SANJAY KUMAR AGGARWAL:
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNAL:
(WEST):DELHI.
Case No. 710/09
1. Inderjeet Kaur d/o Late Sh. Jasbir Singh
2. Ms. Supreet Kaur d/o Late Sh. Jasbir Singh
Permanent R/o J-4/16, Rajouri Garden,
New Delhi-110027
.......Petitioners in the First Petition
Case No. 751/09
Balwinder Kaur w/o Late Sh. Jasbir Singh (Late petitioner)
W/o Late Sh. Jasbir Singh,
R/o J-4/16, Rajouri Garden,
New Delhi-110027
1. Inderjeet Kaur d/o Late Sh. Jasbir Singh
2 .Ms. Supreet Kaur d/o Late Sh. Jasbir Singh
Permanent R/o J-4/16, Rajouri Garden,
New Delhi-110027
.......Petitioners in the Second Petition
VERSUS
1. Sh. Manoj Kumar s/o Sh. Satinder Singh
R/o Village Badh Ka Pul P.O. Ramila,
District Alwar, Rajasthan
Service also to be effected through respondent No.2 (Driver)
2. Sh.Pragat Singhs/o Sh. Pritam Singh r/o 63, NIT, Faridabad, Haryana Also at : M/s Bharat Trailor Syndicate, 42, Shyam Enclave, near Border, Ghaziabad, U.P.(owner)
3. The Oriental Insurance Company Ltd.
Registered Office: Oriental House, A-25/27, Asaf Ali Road, New Delhi-110002 (insurer) .............Respondents in all three petitions Consolidated Suit No. 710/09 & 751/09 Page no.1/13 Date of institution for first petition : 22/09/2009 Date of institution for second petition : 07/10/2009 Date of reserving judgment/order : 15/09/2012 Date of pronouncement : 11/10/2012 CONSOLIDATED JUDGMENT-CUM-AWARD:
1. By this consolidated judgment- cum- award, I shall dispose of two petitions bearing suit no. 710/09 and 751/09 (hereinafter called the first petition and the second petition respectively) filed by the petitioners u/s 166 and 140 Motor Vehicle Act 1988 amended upto date ( hereinafter referred as Act). The first petition has been filed by the L.Rs of the deceased Sh. Jasbir Singh, whereas the second petition has been filed by the injured himself. Since both the claim petitions arise out of the same motor vehicle accident, they can be conveniently disposed of together.
2. Initially the first petition was filed total four claimants. The petitioner No.1 being the wife of the deceased and the petitioner No.4 being the father of the deceased expired during the pendency of the inquiry. The first petition was taken over by the L.Rs of petitioner No.1. Similarly, the petitioner No.1 who is the wife of the deceased was also the injured in the second petition. Therefore, the second petition was also taken over by the L.Rs of the injured.
3. The case of the petitioners is that on in the intervening night of 20/07/09 & 21/07/09 a about 1200 a.m while the deceased in the first petition alongwith his wife/ late petitioner in the second petition were travelling in Santro Car bearing No. DL 8CS 0753 and while they reached near Jackson Filling Station, Panipat, in the meantime the offending vehicle bearing No. HR-47-1554(Trolla Truck) which was being driven by its driver/ respondent No.1 in rash and negligent manner hit the said Santro Car. The deceased in first petition died whereas late petitioner sustained injuries in the second petition in vehicular accident. In total, the petitioners in the first petition have claimed a total sum of Rs. 50 Lakhs on account of fatal injuries sustained by the deceased and late petitioner in the second petition claimed a total sum of Rs. 2,00,000/- on account of injury sustained by the petitioner herself in the vehicular accident. The injured in second petition who was also petitioner in first petition died during pendency of both petitions.
Consolidated Suit No. 710/09 & 751/09 Page no.2/13 4. The written statement was filed by respondent No. 1 therein he has
categorically denied the rash and negligent aspect and also termed the contents of the petition to the false one.
5. The written statement was filed by respondent No. 2 therein he has categorically denied the rash and negligent aspect and also termed the contents of the petition to the false one.
6. The written statement was filed by respondent no.3, insurance company wherein it was admitted that the offending vehicle was insured on the date and time of accident but categorically denied the contents of the same.
7. On the pleadings of the parties, the following consolidated issues were framed for consideration on 24/05/10 in first petition and second petition.
In First Petition
1.Whether the deceased Sh. Jasbir Singh had sustained fatal injuries in the intervening night of 20.07.09 & 21.07.0 at about 12.00 a.m at main G.T. Road near Jackson Filling Station, Panipat, Haryana due to rash and negligent driving of respondent No.1 Sh. Manoj Kumar while driving vehicle Trolla Truck bearing registration No. HR-47-1554?
2.Whether the petitioner is entitled to any compensation? If so, to what amount and from whom?
3.Relief In Second Petition
1.Whether the petitioner Mrs. Balwinder Kaur had sustained grievous injuries in the intervening night of 20.07.09 at about 12.00 a.m at main G.T. Road near Jackson Filling Station, Panipat, Haryana due to rash and negligent driving of respondent No.1 Sh. Manoj Kumar while driving vehicle Trolla Truck bearing registration no. HR-47-1554?
2.Whether the petitioner is entitled to any compensation? If so, to what amount and from whom?
3.Relief.
Consolidated Suit No. 710/09 & 751/09 Page no.3/13
8. In order to establish the case, late petitioner before her death examined herself being the wife of the deceased in first petition and injured in second petition as PW-1 for both petitions; Sh. Lala Ram as PW-2 who had brought the income tax return of the deceased; Sh. Ashok Kumar, Tax Assistant as PW-3. The respondents did not examine any witness in their defence.
9. I have thoroughly gone through the testimony of the witnesses and perused the record. I have also given thoughtful consideration to the arguments addressed by learned counsel for the insurance company. My findings on various issues are as under :-
ISSUE NO.1 IN FIRST AND SECOND PETITIONS
10. Since the present petition is under Section 166 of M V Act, it was the bounden duty of the petitioner to prove that the respondent No.1 was rash and negligent in driving the vehicle at the time of accident.
11. The police have filed the Accident Information Report (AIR) on record i.e the copy of FIR etc. bearing No. 168/09 P.S. Sadar Panipat, District Panipat Haryana under Section 279/304-A IPC.
12. PW-1 explained the mode and manner of the accident in his affidavit, Ex.
PW1/A to the effect that on the date of accident while the deceased in the first petition alongwith his wife/petitioner in the second petition were travelling in Santro Car bearing No. DL 8CS 0753 and while they reached near Jackson Filling Station, Panipat, in the meantime the offending vehicle bearing No. HR-47-1554(Trolla Truck) which was being driven by its driver/ respondent No.1 in rash and negligent manner hit the Santro Car of the petitioners. The deceased in first petition died whereas injured sustained injuries in the second petition in vehicular accident. The cross-examination carried on by the respondents are not suggestive of anything which may discard the claim of the petitioners.
13. To determine the negligence, I am being guided by the judgment of Hon'ble High Court of Delhi in 2009 ACJ 287, National Insurance Company Limited Vs. Pushpa Rana wherein in the Hon'ble High Court held that in case the petitioner files the certified copy of the criminal record or the criminal record showing the completion of the investigation by the police or the issuance of charge sheet under section 279/304 A IPC Consolidated Suit No. 710/09 & 751/09 Page no.4/13 or the certified copy of the FIR or in addition the recovery memo on the mechanical inspection report of the offending vehicle, these documents are sufficient proof to reach to the conclusion that the driver was negligent. It was further held that the proceedings under the Motor Vehicles Act are not akin to the proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Further, in Kaushnumma Begum and others v/s New India Assurance Company Limited, 2001 ACJ 421 SC the issue of wrongful act or omission on the part of driver of the motor vehicle involved in the accident has been left to a 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 made the petition maintainable under section 166 and 140 of the Act. It is also settled law that the term rashness and negligence has to be construed lightly while making a decision on a petition for claim for the same as compared to the word rashness and negligence as finds mention in the Indian Penal Code. This is because the chapter in the Motor Vehicle Act dealing with compensation is a benevolent legislation and not a penal one.
14. Further recently the Hon'ble High of Delhi in MAC App. No.200/2012 in case titled as United India Insurance Co. Ltd. Vd. Smt. Rinki @ Rinku & Ors decided on 23/07/2012 by Hon'ble Mr. Justice G. P. Mittal, held as under:-
"The Claims Tribunal was conscious of the fact that negligence is a sine qua non to a Petition under Section 166 of the Motor Vehicles Act, 1988(the Act). It is also true that the proceedings for grant of compensation under the Act are neither governed by the criminal procedures nor are a civil suit. A reference may be made to a judgment of the Supreme Court Bimla Devi and Ors. V Himachal Road Transport Corporation and Ors, (2009) 13 SC 530 where it was held 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 any accident caused by a particular bus in a particular manner may not be possible to be done by the claimant. 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."
Consolidated Suit No. 710/09 & 751/09 Page no.5/13
15. Therefore, reading all the documents filed by the petitioners as a whole it is clear that respondent No.1 was driving the vehicle in a rash and negligent manner.
16. The issue No:1 therefore, stands in favour of the petitioners and against the respondents.
COMPENSATION IN THE FIRST PETITION(ISSUE NO.2)
17. As per the income tax return record, the date of birth of the deceased was 05/09/1955. The Higher Secondary Examination Certificate also shows the date of birth of deceased as 05/09/1955. The date of accident was in the intervening night of 20/07/09 and 21/07/09. Accordingly the deceased was 54 years of age as on the date of accident. The deceased was stated to be engaged in the business of Cloth Trading and Building Contractor and was stated to be earning Rs. 30,000/- per month.
18. The petitioners in order to substantiate the claim in first petition that deceased was earning Rs. 30,000/- have produced the income tax return filed by the deceased himself before his death. As per the income tax record brought by PW-2, the deceased himself had filed the latest income tax return for the year 2009-2010 on 14/07/09. As per the said income tax return filed on 14/07/09, the gross income of the deceased was shown to be Rs. 1,73,600/-. Perusal of the said ITR reveals that no income tax have been paid by the deceased.
19. No appreciation towards future prospects on the monthly income of deceased for balancing the inflation is required in this case as deceased was more than 50 years of age.
20. Ld. Counsel for insurer submitted that since only two dependents have been left in the first petition, deduction towards personal expenses of deceased should be made accordingly. He further submitted that now only two daughters of the deceased are surviving , they cannot be termed to be dependents as both had already got married during inquiry.
Consolidated Suit No. 710/09 & 751/09 Page no.6/13
21. I have taken care of the submission of the Ld. Counsel for insurer.
22. The deduction etc have to be taken note on the basis of status of the parties as on the date of accident. Therefore, I am not in agreement with the counsel for insurer that deduction should be made accordingly on the basis of two dependents. Moreover out of to surviving daughters of deceased, one is reported to be still unmarried.
23. It can very well be presumed in terms of the judgment of the Hon'ble Supreme Court of India in Sarla Verma Vs. DTC decided on 15.4.2009 in C.A. No. 3483/08 that the deceased might have been spending one- fourth of Rs. 1,73,600/- on his personal expenses as he had left behind four dependents . Therefore, after deducting one- fourth towards personal expenses, the loss of dependency per annual comes out to be Rs. 1,73,600/- less Rs. 43,400/- = Rs. 1,30,200/-. The appropriate multiplier applicable is 11, as mentioned in Sarla Verma's judgment (Supra). The total loss of dependency comes out to Rs. = 14,32,200/- (Rs. 1,30,200/-x 11) .
24. Regarding loss of love and affection, I am guided by the judgment of Hon'ble High Court of Delhi in MAC APP.757/11 in case titled as 'Cholamandalam MS General Insurance Co. Ltd. Vs Ram Kumar & ors' decided on 19/07/2012 by Hon'ble Mr. Justice G. P. Mittal wherein it was held as under:-
"8. It is urged that the compensation of Rs. 1,00,000/- awarded towards loss of love and affection is excessive. Normally, when full compensation towards loss of dependency is granted only a nominal sum is awarded towards loss of love and affect. The trend of the High Court and the Supreme Court is to grant a sum of Rs.25,000/- under this head. Such a sum was granted by the Supreme Court in Sunil Sharma V Bachitar Singh(2011)11 SCC 425 and in Baby Radhika Gupta v. Oriental Insurance Company Limited(2009) 17 SCC 627 towards love and affection. However, in a later judgment in Amrit Bhanu Shali & Ors. v. National Insurance Company Ltd. & Ors(2012) 6 SCALE 1, in case of a death of bachelor, a compensation of Rs. 1,00,000/- was awarded by the Supreme Court. In the circumstances, I am not inclined to interfere in the award of compensation of Rs 100,000/- towards love and affection.
9. The Claims Tribunal awarded a sum of Rs. 25,000/- towards funeral expenses, which in the absence of any evidence as to the actual expenditures is on the higher side. The same is reduced to Rs. 10,000/-. The Claims Tribunal did not award any compensation towards loss to estate. I make a provision for a sum of Rs. 10,000/-".
Consolidated Suit No. 710/09 & 751/09 Page no.7/13
25. In terms of the aforesaid judgment passed by the Hon'ble High Court of Delhi, I award Rs. 10,000/- towards funeral charges; Rs. 1,00,000/- towards love and affection; Rs. 10,000/- for loss of consortium and Rs. 10,000/- towards loss of estate. Therefore, in total, I hereby award a sum of Rs. 15,62,200/- in favour of the petitioners and against the respondents.
RELIEF:
26. I award Rs. 15,62,200/- ( Rupees Fifteen Lakhs Sixty Two Thousand Two Hundred Only) as compensation with interest at the rate of 7.5% per annum including interim award, if any from the date of filing the petition i.e. 22/09/09 till the notice under Order 21 Rule 1 is given by the insurance company, in favour of the petitioners No.1 to 4 and against the respondents on account of their liability being joint and several. Both petitioners shall have equal share in the award amount.
27. Acting on the guidelines issued by Hon'ble Supreme Court of India G.M Kerala State Road Transport Corporation v/s S. Susamma Thomas (1994) 2 SCC 176 in order to avoid the money being frittered away, fifty percent(50%) of the amount awarded to petitioner No.1 (wife of deceased) shall be kept in 5 FDRs of almost equal amount in a Nationalized Bank for a period of 1,2,3,4 & 5 years. In case any petitioner/petitioners is/ are minor/minors, the entire amount awarded to petitioner/ petitioners shall be kept in FDRs in a nationalized bank till he/she attain/ attains the age of majority or for a period of five years whichever is later. No loan or advance shall be allowed against the said fixed deposit. Petitioner No.1 can withdraw the interest quarterly from the said FDRs. The minor petitioners, if any can withdraw the interest quarterly through their mother/ petitioner No.1.
COMPENSATION IN SECOND PETITION (ISSUE NO.2) (Suit No. 751/09) NATURE OF INJURIES AND REIMBURSEMENT OF MEDICAL BILLS:
28. The OPD Card issued by Sushruta Trauma Centra Ex. P-15, the late petitioner had got tenderness and got dressing wound over left third toe and ring finger of hand.
Since, no medical bills have been filed the legal heirs of late petitioner, they are not entitled for any compensation towards reimbursement of medical bills.
Consolidated Suit No. 710/09 & 751/09 Page no.8/13 PAIN AND SUFFERINGS :
29. The injured has expired during the pendency and the L.Rs of the petitioner were impleaded as party after the death of the injured.
30. The parameters for assessment of compensation in cases where the petitioner dies during MACT inquiry were laid down by Hon'ble High Court of Delhi in case titled as V. Mepherson & Anr Vs. Shiv Charan Singh & Ors, reported in 1998 ACJ 601 in which it was held as under:
"3. So far as the contention of Mr. Tarun Johri about the claim for damages which was on account of suffering and pain suffered by the deceased, to my mind, it would abate on the death of the injured. But so far as other claims under other heads are concerned those would not come to an end on the death of the objector. The right to sue would survive even on the death of the objector. As a matter of fact claims on account of the special diet, medicine, conveyance, etc are such which related to loss of property, therefore, right to sue would not abate on the death of the objector. It would survive to his legal heirs as held by the Punjab & Haryana High Court in the case of Joti Ram V Chaman Lal, 1984 ACJ 645(P& H)".
31. The petitioners shall not be entitled for any compensation towards pain and sufferings and loss of amenities of life.
SPECIAL DIET AND CONVEYANCE
32. Keeping in view the nature of injuries and considering all circumstances, I hereby grant Rs. 10,000/- towards special diet. Beside this, I hereby grant Rs. 3000/- towards conveyance.
LOSS OF RENDERING SERVICES TO HER REMAINING FAMILY MEMBER:
33. The late petitioner was stated to be housewife. Keeping in view the nature of injuries, she could not have rendered the services to her family members at least 2 months months. Therefore, I hereby grant lump sum Rs. 10,000/- towards loss of rendering services to her family members.
Consolidated Suit No. 710/09 & 751/09 Page no.9/13
The total compensation is assessed as under:-
Treatment expenses: ............ Nil........
Pain and sufferings: ........... Nil.........
Special diet Rs. 10,000/-
conveyance : Rs. 3,000/-
Loss of income during
treatment period Rs. 10,000/-
_____ ____________
Total: Rs. 23,000/-
RELIEF:
34. I award Rs. 23,000/-( Rupees Twenty Three Thousand Only) as
compensation with interest at the rate of 7.5% per annum including interim award, if any from the date of filing the petition i.e., 07/10/09 till the notice under Order 21 Rule 1 is given by the insurance company, in favour of the petitioners and against the respondents on account of their liability being joint and several. Both petitioners who are daughters of late petitioner shall have equal share in the award amount. APPORTIONMENT OF LIABILITY:
35. The respondent No: 3 being the insurer, its liability is joint and several with other respondents. Accordingly, respondent No.3 is directed to deposit the award amount within a period of 30 days. In case of any delay, it shall be liable to pay interest at a rate of 12% per annum for the period of delay.
36. The Hon'ble High Court of Delhi in its latest judgment in Union of India and Another Vs. Nanisari and Others MACA 682/2005 decided on 13.1.2010 have given certain guidelines and directions to the Motor Accident Tribunals to the effect that henceforth the Tribunals shall direct the insurance companies to deposit the award amount in the bank within 30 days with further direction as to the disbursement of the same in terms of the award and case be kept pending till the compliance is placed on record. The directions given by Hon'ble High Court of Delhi as mentioned and endorsed in the said order has already been re affirmed by Hon;ble Supreme Court of India in order dated 17.12.2009 in Consolidated Suit No. 710/09 & 751/09 Page no.10/13 SLP (C) No. 11801-11804/2005 which contains certain schemes initiated for the benefit of the victims of the road accidents after the award amount is passed. The para no.18 of the judgment of the Hon'ble High court of Delhi runs as under:-
"19. To protect and preserve the compensation amount awarded to the families of the deceased victim special schemes may be considered by the insurance companies in consultation with the Life Insurance Corporation of India, State Bank of India or any other Nationalized Banks under which the compensation is kept in fixed deposit for an appropriate period and interest is paid by the Bank monthly to the claimants without any need for claimants having to approach either the Court or their counsel or the Bank for that purpose. The scheme should ensure that the amount of compensation is utilized only for the benefit of the injured claimants or in case of death, for the benefit of the dependent family. We extract below the particulars of a special Scheme offered by a nationalized Bank at the instance of the Delhi High Court:
(i) The fixed deposit shall be automatically renewed till the period prescribed by the Court.
(ii) The interest on the fixed deposit shall be paid monthly.
(iii) The monthly interest shall be credited automatically in the saving account of the claimant.
(iv) Original fixed deposit receipt shall be retained by the Bank in safe custody. However, the original pass book shall be given to the claimant along with the photocopy of the FDR.
(v) The original fixed deposit receipt shall be handed over to the claimant at the end of the fixed deposit period.
(vi) Photo identity card shall be issued to the claimant and the withdrawal shall be permitted only after due verification by the Bank of the identity card of the claimant.
(vii) No cheque book shall be issued to the claimant without permission of the Court.
(viii) No loan, advance or withdrawal shall be allowed on the fixed deposit without permission of the Court.
(ix) The claimant can operated the saving bank account from the nearest branch of UCO Bank on the request of the claimant, the bank shall provide the said facility."
Consolidated Suit No. 710/09 & 751/09 Page no.11/13
37. It was further held in the judgment passed by Hon'ble High Court of Delhi in Nanisiri case (Supra) that "The State Bank of India and UCO Bank have formulated special schemes for the victims of the road accident on the above terms and, therefore, the order for the deposit should be made presently to State Bank of India through its nodal officer Mr. H S Rawat, Relationship Manager, Tis Hazari Branch, Tis Hazari (Mb:
09717044322) or to UCO Bank through Mr. M M Tandon, Member-Retail Team, UCO Bank Zonal, Parliament Street, New Delhi (Mobile No.09310356400) as per the convenience of the victim /legal representatives of the victim. However, if any other bank agrees to provide the special scheme for victims of the road accident on the above terms, the deposit be permitted to be made in that Bank subject to the convenience of the victim/legal representative of the victim of the road accident".
38. Accordingly, respondent No.3 / insurer is directed to deposit the award amount in Punjab National Bank, Branch Gokhle Market Opposite Tis Hazari Court, Delhi within a period of 30 days and shall filed the compliance report. In case of any delay, it shall be liable to pay interest at a rate of 12% per annum for the period of delay.
39. It is made clear that at the time of the deposit of the award amount with the bank, the insurance company shall specifically mention the suit no. of the case, title of the case as well as date of decision with the name of court on the back side of the cheque. The insurance company shall also file the attested copy of the award attested by its own officer to the bank at the time of deposit of the amount with the bank.
40. The copy of this award be given to the insurance company as well as to the petitioner free of cost. The petitioner/ petitioners shall approach the Punjab National Bank, Branch Gokhle Market Opposite Tis Hazari Court, Delhi Delhi for opening the account.
41. The Manager of the Bank is directed to comply the award. The Bank Manager is directed to release the award amount to the petitioners. However, in case the amount is ordered to be kept in the FDR, the said amount should not be released unless the FDR is matured.
Consolidated Suit No. 710/09 & 751/09 Page no.12/13 File be consigned to Record Room.
A separate file be prepared for compliance report and put up the same on 11/12/2012 to be fixed by insurance company.
Announced in the open court
On 11th October, 2012 (SANJAY KUMAR AGGARWAL)
JUDGE: MACT (WEST):DELHI
Consolidated Suit No. 710/09 & 751/09 Page no.13/13
Suit No. 710/09 (Copy also in Suit No. 751/09)
03/10/12.
Present: None.
Put up with the connected matter on 11/10/12
(SANJAY KUMAR AGGARWAL)
PO: MACT(WEST) : DELHI
Suit No. 710/09 (Copy also in Suit No. 751/09)
11/10/12.
Present: None.
Consolidated Judgment in Suits No. 710/09 and 751/09 announced vide
separate sheets of even date.
File be consigned to Record Room.
A separate file be prepared for compliance report and put up the same on 11/12/12, to be fixed by insurance company.
(SANJAY KUMAR AGGARWAL) PO: MACT(WEST) : DELHI Consolidated Suit No. 710/09 & 751/09 Page no.14/13