Delhi District Court
Sh. Sushil Kumar S/O Sh. Udey Kumar vs Sh. Jagdev Singh S/O Sh. Chandgi Ram on 21 August, 2010
IN THE COURT OF SHRI GURVINDER PAL SINGH
JUDGE,MOTOR ACCIDENT CLAIMS TRIBUNAL(WEST)
TIS HAZARI COURTS,DELHI
Suit No. 658/09
Unique ID no.02401C0405412009
1. Sh. Sushil Kumar s/o Sh. Udey Kumar
2. Smt. Neelam Devi w/o Sh. Sushil Kumar
R/o 96, Tilang Pur Kotla Village, Delhi110041
......Petitioners/Claimants
Versus
1. Sh. Jagdev Singh s/o Sh. Chandgi Ram
R/o K39, Amar Colony, Nangloi, New Delhi. (Driver)
2. Delhi Transport Corporation
B.B.M.Delhi (owner)
3. United India Insurance Co. Ltd.
th
DOXI, E85, Himalaya House, 8 Floor,
K.G. Marg, New Delhi (insurer)
.....Respondents
Date of filing of the petition : 31/08/09
When reserved for judgment : 11/08/10
Date of final judgment/award : 21/08/10
Appearances :
For claimants/ petitioners : Sh.P.G. Giri Advocate
Ch.No. 402, Western Wing,
Tis Hazari Courts, Delhi
For respondents No. 1 & 2 : Ms. Jyotsna Parashar Adv.
Ch.No. 670, Western Wing,
Tis Hazari Courts, Delhi.
For respondent No.3 : Sh. V.P. Malhotra Advocate
H.No. 365, Sec.15A, Noida
(U.P)
JUDGMENT /AWARD
Petitioners have claimed compensation of Rs. 10,00,000/( Rupees Ten Lakhs) vide claim petition under sections 166/140 Motor Vehicles Act, 1988, for fatal injuries received by their minor son Master Naini in road accident. Suit No. 658/09 Page 1/8
2. Brief resume of the facts of the case of the petitioner is as follows. On 18/07/09 at about 6.40 a.m in front of Master Bijender Farm House, Nangloi, Delhi, the deceased minor boy was on bicycle going to school. Bus No. DL1PB 6561, driven by respondent no.1 at high speed rashly and negligently, in the process of over taking another bus came from opposite side on the wrong side of the road and hit the minor deceased boy causing serious injuries on his person.
3. Respondent No.1, 2 and 3 are the driver, owner and insurer respectively of the offending vehicle.
4. Respondents were summoned and served.
5. All the respondents filed their written statements and denied the claim of the petitioners.
6. Respondent No.3 has however, admitted the fact that vehicle i.e. No. DL1PB6561 was insured with it vide Policy No. 041100/31/08/02/00002221 valid from 01/10/08 to 30/09/09.
7. Vide order dated 05/02/10 of this Tribunal, petitioners were awarded interim compensation of Rs. 50,000/, equally shared between them with interest @ 7.5 % per annum from the date of the petition till its realization. Also vide orders dated 05/02/10, following issues were framed:
1. Whether the deceased minor boy Master Naini had sustained fatal injuries on 18.07.09 at about 6:40 am in front of Master Bijender Farm House, Nangloi, Delhi due to rash and negligent driving of respondent no.1 Sh. Jagdev Singh while driving vehicle Bus bearing registration No. DL 1PB6561?
2. Whether the petitioners are entitled to any compensation? If so, to what amount and from whom?
3. Relief.
8. Petitioner No.2 as PW1; Ms. Nishu, sister of deceased as PW2 are the examined petitioner(s) witnesses.
Suit No. 658/09 Page 2/8
9. On 05/08/10, respondent no.1 gave statement for not leading any respondent evidence.
10. Despite opportunity no respondent evidence was led by respondents no.2 & 3.
11. I have heard the submissions of Ld. Counsels for the parties, perused the record and given my thoughts to the rival contentions put forth. My issue wise findings are as under: ISSUE NO.1
12. PW2 Ms. Nishu testified in corroboration of the claim petition. She testified that she with her friend Ms.Suman were walking towards the school while her brother, Master Naini, now deceased was peddling the bicycle at about 6.40 a.m. When they had crossed the Bijender Farm House, took turn towards their school from a cut and were at Kachhi Patri/ pavement of the road, then all of a sudden Bus No. DL1PB6561, driven by respondent no.1, at high speed rashly and negligently in the process of overtaking another bus came on the wrong side of the road and hit Master Naini , brother of PW2. The deceased fell down on the road and the wheel of the bus crushed him. Deceased died at the spot.
13. Neither respondent No.1 has entered into the witness box to testify in contrary to the facts deposed by PW2 nor is there any evidence on record by which the testimony of PW2 could be disbelieved or discredited in toto or in particular.
14. The version of PW2 is lent corroboration by the version emanating from the Accident Information Report (AIR) with which is the copy of the FIR No. 169/09, P.S. Nangloi u/s 279/304A IPC lodged against respondent No.1, in terms of which the investigating agency opined that the respondent No.1 has committed the said offences and was responsible for the death of the minor deceased boy Master Naini caused by his rash and negligent driving. Suit No. 658/09 Page 3/8
15. 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. Having failed to observe such necessary care and caution, being oblivious of said duty, respondent No.1 was berserk locomotion since he crushed the minor boy, now deceased, at the spot causing him fatal injuries. Respondent No.1 was thus negligent.
16. As per the copy of the post mortem report conducted on the body of the deceased minor boy, the cause of death has been opined to be ' cranio cerebral damage consequent to blunt force impact to the head'.
17. Above discussion leads me to the conclusion that petitioners have been able to prove that deceased minor boy, Master Naini 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
18. No cogent evidence has been led on behalf of the petitioners claimants regarding the age of the deceased minor boy. In the post mortem report, the age of the deceased minor boy is mentioned as 8 years. I take the age of the deceased as 8 years accordingly.
19. As per the copy of the identity card of Election Commission of India, the petitioner no.1, the father of the deceased of minor boy was of age 40 years as on the date of accident.
20. As per Ex. PW1/1, the copy of identity card of Election Commission of India , petitioner No.2, the mother of the deceased of minor boy was of age 39 years as on the date of accident.
21. Relying upon the cases of (1) National Insurance Company Limited Vs. Farzana, MAC Appeal No. 13/2007, decided on 14/07/09; (2)Manju Devi Vs. Musafir Paswan, reported in VII(2005) SLT 257;(3) Sobhagya Devi Vs. Suit No. 658/09 Page 4/8 Sukhvir Singh, reported in II (2006) ACC 1997; (4)Syam Narayan Vs. Kitty Tours & Travels, reported in 2006 ACJ 320;(5) R. K. Malik Vs. Kiran Pal, reported in II(2006) ACC 261 and (6) R. K. Malik Vs. Kiran Pal, reported in 2009(8) Scale 451 (Supreme Court); it was held by Hon'ble Mr.Justice J.R. Midha in the cases of (1)Jitender Kumar & Anr Vs. The Oriental Insurance Company Ltd & Anr, MAC Appeal No. 68/2009, decided on 31/07/09 and (2) Sri Ram & Anr. Vs. Surender Yadav & Ors, MAC Appeal No. 627/08, decided on 04/09/09 that the parents of the minor deceased are entitled for Rs.2,25,000/ towards pecuniary damages(as loss of dependency) following the Second Schedule of Motor Vehicles Act,1988(after taking notional income of nonearning minor deceased as Rs. 15,000/ per annum and applying the multiplier of 15); Rs. 75,000/ towards non pecuniary damages (stated non pecuniary damages include such immeasurable elements as pain and suffering and loss of amenity and enjoyment of life) and Rs. 75,000/ towards future prospects.
22. The deceased in the present case was 8 years old boy . This case is also squarely covered by the ratio decisis of the judgments of Hon'ble Mr. Justice J. R. Midha, elicited above, which in the case of Jitender Kumar & Anr. (supra) related to the death of road accident victim who was 3 years old child. In the case of Sri Ram & Anr.(supra), the age of the claimant, father of the deceased minor, was 58 years at the time of accident. Therein the Tribunal had applied the multiplier of 8 which was enhanced to 15 by the Appellate Court.
23. In terms of above said law laid, the petitioners/ claimants viz., parents of the deceased minor boy in this case are also accordingly entitled for Rs. 2,25,000/ as pecuniary damages( as loss of dependency) following the Second Schedule of the Motor Vehicles Act(after taking notional income of nonearning minor deceased as Rs. 15,000/ per annum and applying the multiplier of 15); Rs. 75,000/ towards non pecuniary damages and Rs. Suit No. 658/09 Page 5/8 75,000/ towards future prospects of the deceased child. The total compensation for which the petitioners/claimants are entitled, comes to Rs. 3,75,000/ accordingly. Out of the same, interim award sum of Rs. 50,000/ has to be reduced. Balance payable compensation sum is Rs. 3,25,000/.
24. In view of the above discussions, issue No.2 is decided in favour of the petitioners and against the respondents. Petitioners are thus, entitled to Rs. 3,25,000/,as compensation alongwith interest @ 7.5% per annum from the date of filing of the petition till the date of notice of deposit to the claimants with a copy to their counsel against receipt from the respondents, payable by the respondent No.3,insurer.
RELIEF
25. In view of the aforesaid discussions, it is hereby held that petitioners are entitled to a sum of Rs. 3,25,000/, to be equally shared between them alongwith interest @ 7.5% per annum from the date of filing of the present petition till the date of notice of deposit to the claimants with a copy to their counsel against receipt from the respondents, payable by the respondent No.3,insurer.
26. 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 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 Suit No. 658/09 Page 6/8 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.
27. In terms thereof, out of the award amount, 50% payable to petitioners be invested in shape of two FDRs of equal (almost) sum in the name of the said claimants / petitioners for a period of seven years in State Bank of India.
28. State Bank of India,Tis Hazari, has agreed to open Special Fixed deposit Accounts for the victims of road accidents.
29. 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. The fixed deposits shall be automatically renewed till the period prescribed by the court.
(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/petitioners after due verification and the Bank shall issue photo identity Card /Pass Books with attested photographs to claimants to facilitate their identity.
(4) No cheque book be issued to the claimants/petitioners without the permission of this Court.
(5) Half yearly statement of account be filled by the Bank in this Court.
(6) The original FDRs shall be retained by the Bank in the Safe Suit No. 658/09 Page 7/8 custody. However, the original Pass Book shall be given to the claimants/ petitioners 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.
(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.
30. In terms of directions contained in case of UOI Vs. Nanisiri, in MAC Appeal No. 682/2005, order dated 13/01/2010, of Hon'ble Mr. Justice J. R. Midha,Respondent No.3 is directed to directly deposit the award sum with , State Bank of India (SBI), Tis Hazari within 30 days through its nodal officer Mr. H.S. Rawat, Relationship Manager, Tis Hazari Branch (Mb: 09717044322) and the Manager concerned of SBI, Tis Hazari Court to keep the specified amount aforesaid in fixed deposit in terms of the award and release the balance amount by transferring the same to the Saving Bank Accounts of the victim(s)/ claimant
(s). Insurance Company to also file proof of deposit of award sum, also within said period. Manager SBI, Tis Hazari to also furnish compliance report within 15 days of deposit of award sum. Claimants to do the necessary formalities in respect of the bank accounts. Ahlmad to keep the copy of Award in a miscellaneous file for awaiting compliance report from all concerned, which be put up on 04/10/10.Inquiry file be consigned to Record Room.
Announced in open court (Gurvinder Pal Singh)
today i.e. 21/08/10 Judge, MACT(West)
Delhi.
Suit No. 658/09 Page 8/8