Delhi District Court
Smt. Basanti vs Sh. Bijender Panchal (Driver) on 10 July, 2013
IN THE COURT OF SH. ARUN BHARDWAJ
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNALII,
DWARKA COURTS, NEW DELHI
MACT Nos. 77/11/10, 58/11/10, 59/11/10, 60/11/10, 61/11/10,
62/11/10, 63/11/10, 71/11/10, 74/11/10, 75/11/10 & 76/11/10
IN THE MATTER OF :
(i) MACT No. 77/11/10
1. Smt. Basanti
W/o late Sh. Rohtash Kumar
2. Ms. Chander Prabha
D/o late Sh. Rohtash Kumar
3. Ms. Kusum
D/o late Sh. Rohtash Kumar
4. Ms. Tripti
D/o late Sh. Rohtash Kumar
5. Mr. Krishan Kumar
S/o late Sh. Rohtash Kumar
6. Kumari Leesa
D/o late Sh. Rohtash Kumar
7. Sh. Hardwari Lal
S/o Sh. Bhoja Ram
8. Smt. Luxmi Devi
W/o Sh. Hardwari Lal
(Petitioner No. 6 is minor through her mother
and natural guardian Smt. Basanti Petitioner No.1)
All are residents of:
766, Dichaon Kalan, Najafgarh, Delhi110043.
MACT No.77/11/10, 58/11/10, 59/11/10, 60/11/10, 61/11/10, 62/11/10, 63/11/10, 71/11/10, 74/11/10, 75/11/10 & 76/11/10 Page 1 of 40
...... Claimants
Versus
1. Sh. Bijender Panchal (Driver)
S/o Sh. Kamal Singh,
R/o H.No. 2/A, Gali No. 2,
Dharampura Extn., Najafgarh,
New Delhi.
2. Sh. Bipin Pandey (Owner)
S/o Sh. R.S. Pandey,
R/o H.No. RZ7A/14,
Gali No. 14, Pooran Nagar,
Palam Colony, New Delhi110044.
3. ICICI Lombard Gen. Insurance Co. Ltd. (Insurer)
5th Floor, Birla Towers,
Barakhamba Road, New Delhi.
.........Respondents
FILED ON : 10.08.2010
RESERVED ON : 08.07.2013
DECIDED ON : 10.07.2013
(ii) MACT No. 58/11
1. Smt. Sabita Biswas
W/o late Sh. Shambhu Biswas
2. Ms. Ivy Biswas
D/o late Sh. Shambhu Biswas
Both R/o Barasat 22, Barasat North 24,
Krishna Nagar Road, Noapara Pargana700125
West Bengal.
...... Claimants
Versus
1. Sh. Bijender Panchal (Driver)
MACT No.77/11/10, 58/11/10, 59/11/10, 60/11/10, 61/11/10, 62/11/10, 63/11/10, 71/11/10, 74/11/10, 75/11/10 & 76/11/10 Page 2 of 40
S/o Sh. Kamal Singh,
R/o H.No. 2/A, Gali No. 2,
Dharampura Extn., Najafgarh,
New Delhi.
2. Sh. Bipin Pandey (Owner)
S/o Sh. R.S. Pandey,
R/o H.No. RZ7A/14,
Gali No. 14, Pooran Nagar,
Palam Colony, New Delhi110044.
3. ICICI Lombard Gen. Insurance (Insurer)
Policy issuing office: Zenith House,
Keshwar Rao, Khade Marg,
Mahalaxmi Mumbai400034.
.........Respondents
FILED ON : 28.07.2010
RESERVED ON : 08.07.2013
DECIDED ON : 10.07.2013
(iii) MACT No. 59/11
Sh. Shishir Kumar Rout
S/o Sh. Vasudev Rout
Permanent R/o Village Radha Nagar,
P.S. Aul, District Kendrapara,
Orissa.
Also at:
C/o Home Tech Services Pvt. Ltd.
A263, Defence Colony, New Delhi.
...... Claimant
Versus
1. Sh. Bijender Panchal (Driver)
S/o Sh. Kamal Singh,
R/o H.No. 2/A, Gali No. 2,
Dharampura Extn., Najafgarh,
New Delhi.
MACT No.77/11/10, 58/11/10, 59/11/10, 60/11/10, 61/11/10, 62/11/10, 63/11/10, 71/11/10, 74/11/10, 75/11/10 & 76/11/10 Page 3 of 40
2. Sh. Bipin Pandey (Owner)
S/o Sh. R.S. Pandey,
R/o H.No. RZ7A/14,
Gali No. 14, Pooran Nagar,
Palam Colony, New Delhi110044.
3. ICICI Lombard Gen. Insurance Co. Ltd. (Insurer)
5th Floor, Birla Towers,
Barakhamba Road, New Delhi.
.........Respondents
FILED ON : 18.12.2010
RESERVED ON : 08.07.2013
DECIDED ON : 10.07.2013
(iv) MACT No. 60/11
Sh. Krishna Mohan
S/o Sh. Rajendar Singh
Permanent R/o 19, Village Theprubajwar
P.S. & P.O. Pingalaon, Tehsil Garur
Distt. Bageshwar, Uttranchal
Pin263635.
Also at:
RZ3, D75, Mahavir Enclave
PartII, New Delhi.
...... Claimant
Versus
1. Sh. Bijender Panchal (Driver)
S/o Sh. Kamal Singh,
R/o H.No. 2/A, Gali No. 2,
Dharampura Extn., Najafgarh,
New Delhi.
2. Sh. Bipin Pandey (Owner)
S/o Sh. R.S. Pandey,
R/o H.No. RZ7A/14,
MACT No.77/11/10, 58/11/10, 59/11/10, 60/11/10, 61/11/10, 62/11/10, 63/11/10, 71/11/10, 74/11/10, 75/11/10 & 76/11/10 Page 4 of 40
Gali No. 14, Pooran Nagar,
Palam Colony, New Delhi110044.
3. ICICI Lombard Gen. Insurance Co. Ltd. (Insurer)
5th Floor, Birla Towers,
Barakhamba Road, New Delhi.
.........Respondents
FILED ON : 18.12.2010
RESERVED ON : 08.07.2013
DECIDED ON : 10.07.2013
(v) MACT No. 61/11
Sh. Om Prakash Tiwari
S/o Sh. Nand Kishore
Presently R/o Plot No. 13, Sector2A,
Vaishali Ghaziabad, Uttar Pradesh.
Permanent R/o 333, Cotha Toli
Village & Anchal Sasaram
District Rohtas, Bihar.
...... Claimant
Versus
1. Sh. Bijender Panchal (Driver)
S/o Sh. Kamal Singh,
R/o H.No. 2/A, Gali No. 2,
Dharampura Extn., Najafgarh,
New Delhi.
2. Sh. Bipin Pandey (Owner)
S/o Sh. R.S. Pandey,
R/o H.No. RZ7A/14,
Gali No. 14, Pooran Nagar,
Palam Colony, New Delhi110044.
3. ICICI Lombard Gen. Insurance Co. Ltd. (Insurer)
5th Floor, Birla Towers,
Barakhamba Road, New Delhi.
MACT No.77/11/10, 58/11/10, 59/11/10, 60/11/10, 61/11/10, 62/11/10, 63/11/10, 71/11/10, 74/11/10, 75/11/10 & 76/11/10 Page 5 of 40
.........Respondents
FILED ON : 17.02.2011
RESERVED ON : 08.07.2013
DECIDED ON : 10.07.2013
(vi) MACT No. 62/11
Sh. Rotash Kumar
S/o Sh. Juhbhu Mal
H.No. 768, Sector3,
Block No. 21, Pushp Vihar,
M.B. Road, New Delhi110017.
...... Claimant
Versus
1. Sh. Bijender Panchal (Driver)
S/o Sh. Kamal Singh,
R/o H.No. 2/A, Gali No. 2,
Dharampura Extn., Najafgarh,
New Delhi.
2. Sh. Bipin Pandey (Owner)
S/o Sh. R.S. Pandey,
R/o H.No. RZ7A/14,
Gali No. 14, Pooran Nagar,
Palam Colony, New Delhi110044.
3. ICICI Lombard Gen. Insurance Co. Ltd. (Insurer)
5th Floor, Birla Towers,
Barakhamba Road, New Delhi.
.........Respondents
FILED ON : 18.12.2010
RESERVED ON : 08.07.2013
DECIDED ON : 10.07.2013
(vii) MACT No. 63/11
Smt. Ramwati
W/o Sh. Maya Ram
MACT No.77/11/10, 58/11/10, 59/11/10, 60/11/10, 61/11/10, 62/11/10, 63/11/10, 71/11/10, 74/11/10, 75/11/10 & 76/11/10 Page 6 of 40
R/o E54, Navjeevan Camp,
Kalkaji, New Delhi110019.
...... Claimant
Versus
1. Sh. Bijender Panchal (Driver)
S/o Sh. Kamal Singh,
R/o H.No. 2/A, Gali No. 2,
Dharampura Extn., Najafgarh,
New Delhi.
2. Sh. Bipin Pandey (Owner)
S/o Sh. R.S. Pandey,
R/o H.No. RZ7A/14,
Gali No. 14, Pooran Nagar,
Palam Colony, New Delhi110044.
3. ICICI Lombard Gen. Insurance Co. Ltd. (Insurer)
5th Floor, Birla Towers,
Barakhamba Road, New Delhi.
.........Respondents
FILED ON : 18.12.2010
RESERVED ON : 08.07.2013
DECIDED ON : 10.07.2013
(viii) MACT No. 71/11
Smt. Rajwati
W/o Sh. Mahesh Kumar
R/o JhuggiCN/567,
Bhanwar Singh Camp,
Near Babu Cable, DBlock,
Vasant Vihar, New Delhi57.
...... Claimant
Versus
1. Sh. Bijender Panchal (Driver)
S/o Sh. Kamal Singh,
R/o H.No. 2/A, Gali No. 2,
MACT No.77/11/10, 58/11/10, 59/11/10, 60/11/10, 61/11/10, 62/11/10, 63/11/10, 71/11/10, 74/11/10, 75/11/10 & 76/11/10 Page 7 of 40
Dharampura Extn., Najafgarh,
New Delhi.
2. Sh. Bipin Pandey (Owner)
S/o Sh. R.S. Pandey,
R/o H.No. RZ7A/14,
Gali No. 14, Pooran Nagar,
Palam Colony, New Delhi110044.
3. ICICI Lombard Gen. Insurance Co. Ltd. (Insurer)
5th Floor, Birla Towers,
Barakhamba Road, New Delhi.
.........Respondents
FILED ON : 25.10.2010
RESERVED ON : 08.07.2013
DECIDED ON : 10.07.2013
(ix) MACT No. 74/11
1. Sh. Subhash
S/o Sh. Babu Ram
Permanent R/o 18,
Village Devaramapur
P.S. Motadhak, Distt. Pauri Garhwal,
Pin246149
Also at:
RZ3, D75, Mahavir Enclave
PartII, New Delhi.
...... Claimant
Versus
1. Sh. Bijender Panchal (Driver)
S/o Sh. Kamal Singh,
R/o H.No. 2/A, Gali No. 2,
Dharampura Extn., Najafgarh,
New Delhi.
2. Sh. Bipin Pandey (Owner)
MACT No.77/11/10, 58/11/10, 59/11/10, 60/11/10, 61/11/10, 62/11/10, 63/11/10, 71/11/10, 74/11/10, 75/11/10 & 76/11/10 Page 8 of 40
S/o Sh. R.S. Pandey,
R/o H.No. RZ7A/14,
Gali No. 14, Pooran Nagar,
Palam Colony, New Delhi110044.
3. ICICI Lombard Gen. Insurance Co. Ltd. (Insurer)
5th Floor, Birla Towers,
Barakhamba Road, New Delhi.
.........Respondents
FILED ON : 18.12.2010
RESERVED ON : 08.07.2013
DECIDED ON : 10.07.2013
(x) MACT No. 75/11/10
Sh. Anil Kumar
S/o Sh. Babu Ram
Permanent R/o 18,
Village Devaramapur
P.S. Motadhak, Distt. Pauri Garhwal,
Pin246149
Also at:
RZ3, D75, Mahavir Enclave
PartII, New Delhi.
...... Claimant
Versus
1. Sh. Bijender Panchal (Driver)
S/o Sh. Kamal Singh,
R/o H.No. 2/A, Gali No. 2,
Dharampura Extn., Najafgarh,
New Delhi.
2. Sh. Bipin Pandey (Owner)
S/o Sh. R.S. Pandey,
R/o H.No. RZ7A/14,
Gali No. 14, Pooran Nagar,
Palam Colony, New Delhi110044.
MACT No.77/11/10, 58/11/10, 59/11/10, 60/11/10, 61/11/10, 62/11/10, 63/11/10, 71/11/10, 74/11/10, 75/11/10 & 76/11/10 Page 9 of 40
3. ICICI Lombard Gen. Insurance Co. Ltd. (Insurer)
5th Floor, Birla Towers,
Barakhamba Road, New Delhi.
.........Respondents
FILED ON : 18.12.2010
RESERVED ON : 08.07.2013
DECIDED ON : 10.07.2013
(xi) MACT No. 76/11
Master Babloo
S/o Sh. Subhash Chand
Aged about 23 yrs.,
R/o 493 C/o Sh. Deepchand,
Pradhan Mohalla,
Rajokari Village, New Delhi110070.
Also at:
9Harijan Basti, Rajokari Pahari,
New Delhi70.
...... Claimant
Versus
1. Sh. Bijender Panchal (Driver)
S/o Sh. Kamal Singh,
R/o H.No. 2/A, Gali No. 2,
Dharampura Extn., Najafgarh,
New Delhi.
2. Sh. Bipin Pandey (Owner)
S/o Sh. R.S. Pandey,
R/o H.No. RZ7A/14,
Gali No. 14, Pooran Nagar,
Palam Colony, New Delhi110044.
3. ICICI Lombard Gen. Insurance Co. Ltd. (Insurer)
5th Floor, Birla Towers,
MACT No.77/11/10, 58/11/10, 59/11/10, 60/11/10, 61/11/10, 62/11/10, 63/11/10, 71/11/10, 74/11/10, 75/11/10 & 76/11/10 Page 10 of 40
Barakhamba Road, New Delhi.
.........Respondents
FILED ON : 23.09.2010
RESERVED ON : 08.07.2013
DECIDED ON : 10.07.2013
: J U D G M E N T :
1. These are eleven claim petitions which have been
filed under Section 166 and 140 of the Motor Vehicles Act,
1988 for grant of compensation.
2. Nine claimants i.e. Sh. Shishir Kumar Rout (MACT
No. 59/11/10), Sh. Krishna Mohan (MACT No. 60/11/10), Sh.
Om Prakash Tiwari (MACT No. 61/11/10), Sh. Rohtash Kumar
(MACT No. 62/11/10), Ramwati (MACT No. 63/11/10), Smt.
Rajwati (MACT No. 71/11/10), Sh. Subhash (MACT No.
74/11/10), Sh. Anil Kumar (MACT No. 75/11/10) and Master
Babloo (MACT No. 76/11/10) are claiming compensation for
injuries suffered in a road traffic accident on 29.06.10 resulting
in registration of FIR No. 351/10 under Section 279/337/304A
of IPC against Respondent No. 1. Two claimants i.e. Smt.
Sabita Biswas & Ors. (MACT No. 58/11) and Smt. Basanti &
Ors. (MACT No. 77/11) are LRs of deceased who had suffered
fatal injuries in the same accident.
3. The driver, owner and insurance company of the
offending vehicle are same in all the eleven claim petitions.
4. Vide orders dated 22.10.2011, the Ld. Predecessor
of this Tribunal had consolidated all the claim petitions and
had directed that claim petition titled as Smt. Basanti & Ors.
MACT No.77/11/10, 58/11/10, 59/11/10, 60/11/10, 61/11/10, 62/11/10, 63/11/10, 71/11/10, 74/11/10, 75/11/10 & 76/11/10 Page 11 of 40
Vs. Shri Bijender Panchal & Ors. which is MACT No. 77/11/10
shall be treated as the leading case.
5. Therefore, all these claim petitions are being
disposed of vide a common award.
Facts in the Leading case of Smt. Basanti & Ors.:
6. First facts as are stated in the leading case of Smt. Basanti & Ors. Vs. Shri Bijender Panchal & Ors. which is MACT No. 77/11/10 are being taken up for consideration.
7. It is stated in this claim petition that on 29.06.2010, at about 8:15 a.m., Shri Rohtash Kumar (the deceased) was travelling as a passenger in the offending vehicle, RTV No. DL IV8312 and he was going from Mahipalpur to IGI Airport.
8. It is stated that the vehicle was being driven in a rash and negligent manner and in spite of requests of the deceased and other passengers to the driver to drive the vehicle slowly and carefully, the driver did not pay any heed to their requests and when the offending vehicle reached near AAI Operational Office, IGI Airport, New Delhi, it overturned. As a result of this, all the passengers of RTV received grievous injuries but Shri Rohtas Kumar received fatal injuries.
9. It is stated that at P.S. IGI Airport, FIR No. 351/10 was registered under Section 279/337/304A of IPC against Respondent No. 1.
10. It is stated that the deceased was 47 years of age at the time of accident and he was doing private job at a monthly salary of Rs. 10,000/.
11. Claimants are the widow, four daughters, one son MACT No.77/11/10, 58/11/10, 59/11/10, 60/11/10, 61/11/10, 62/11/10, 63/11/10, 71/11/10, 74/11/10, 75/11/10 & 76/11/10 Page 12 of 40 and parents of the deceased. These claimants have claimed a compensation of Rs. 30,00,000/ (Rupees Thirty Lacs) with interest @ 18 % per annum from the date of filing of claim petition till its realization.
12. Respondent No. 1 and 2 did not file any written statement and they were proceeded ex parte.
13. Only insurance company filed its written statement where relevant objection taken was that the vehicle was having prescribed sitting capacity of 15 while it was having more than prescribed passengers in it at the time of accident. Therefore, insurance company stated that it is not liable to pay any compensation.
14. From the pleadings of all the parties i.e. all the 11 claimants and insurance company, following consolidated issues were framed:
1) Whether Sh. Rohtash Kumar, Sh. Shambhu Biswas sustained fatal injuries and Rajwati, Master Babloo, Anil Kumar, Shishir Kumar Rout, Rotash Kumar, Subhash, Krishna Mohan, Ramwati and Om Prakash sustained injuries on 29.06.10 due to rash or negligent driving of vehicle no. DL IV8312 by R1? ... OPP
2) Whether the petitioners are entitled to claim compensation, if so, what amount and from whom?
... OPP
3) Relief .
15. Smt. Basanti, the widow of the deceased late Sh.
MACT No.77/11/10, 58/11/10, 59/11/10, 60/11/10, 61/11/10, 62/11/10, 63/11/10, 71/11/10, 74/11/10, 75/11/10 & 76/11/10 Page 13 of 40Rohtash Kumar entered in the witness box as PW1 and stated similar facts in her evidence by way of affidavit as were already stated by her in her claim petition. PW1 proved salary slip of the deceased for the month of May, 2010 given by M/s. JAC AIR SERVICES PVT. LTD. as Ex. PW1/1. As per this, the salary of the deceased was Rs. 8,669/ per month. Ration Card of the deceased was proved as Ex. PW1/2. Voter Card of PW1, Smt. Basanti was proved as Ex. PW1/3.
16. In crossexamination by counsel for the insurance company,, PW1 stated that except for ration card, she has no other document to show the age of her deceased husband. She admitted that in the Ration Card, it is not shown that parents of the deceased were residing with him.
17. Other suggestions contrary to her case were denied by her.
18. Second witness examined by these claimants in support of their claim petition was PW5, Sh. B.S. Kaushik, Head of Operations, M/s. JAC AIR SERVICES PVT. LTD. who proved the appointment letter dated 13th April, 2002 given to the deceased Sh. Rohtash Kumar as Ex. PW5/1. Salary slip for the month of May, 2010 showing that the salary of the deceased was Rs. 8,669/ per month was proved as Ex. PW5/2. Ex. PW5/3 was filed to show bonus payment to unskilled loaders in JAC AIR SERVICES PVT. LTD. As per this, the deceased was given a bonus of Rs. 6,834/ in October, 2009. Part of Ex. PW5/3 is School Leaving Certificate filed on record by the employer as per which date of birth of the deceased was MACT No.77/11/10, 58/11/10, 59/11/10, 60/11/10, 61/11/10, 62/11/10, 63/11/10, 71/11/10, 74/11/10, 75/11/10 & 76/11/10 Page 14 of 40 08.11.1962. PW5 also produced, as part of Ex. PW5/3, details of Bharti General Insurance i.e. Group Personal Accident Insurance covering employees of JAC AIR SERVICES PVT. LTD. which had given a sum of Rs. 5,82,204/ to the widow of the deceased, on his death.
19. In crossexamination by counsel for the insurance company, PW5 deposed that the deceased was a regular employee and bonus @ 10% was given on annual salary to the deceased.
20. No other witness was examined by these claimants.
21. Smt. Rajwati claimant in Claim Petition No. 71/11/10 had entered in the witness box as PW2 and stated similar facts in her evidence by way of affidavit as were already stated by her in her claim petition. She proved discharge sheet of Safdarjung Hospital where she had remained admitted from 29.06.2010 till 30.06.2010 as Ex. PW1/1 (though it should have been exhibited as Ex. PW2/1). She had suffered fracture Right Medial Malleolous. Other treatment record shows that the treatment of the claimant continued at least till 15th April, 2011. Said record was proved as Ex. PW1/25 (though it should have been exhibited as Ex. PW2/25). Bills for treatment worth Rs. 4,927/ were proved as Ex. PW1/631 (though it should have been exhibited as Ex. PW2/631). Certificate from the employer certifying that the claimant was employed with M/s. Updater Services Pvt. Ltd. at a salary of Rs. 8,685/ per month was proved as Ex. PW1/32 (though it should have been exhibited as Ex. PW2/32). Identity Card MACT No.77/11/10, 58/11/10, 59/11/10, 60/11/10, 61/11/10, 62/11/10, 63/11/10, 71/11/10, 74/11/10, 75/11/10 & 76/11/10 Page 15 of 40 given to her by Bureau of Civil Aviation Security valid upto 29.10.2010 was proved as Ex. PW1/33 (though it should have been exhibited as Ex. PW2/33).
22. In crossexamination, she stated that though she was sitting in the bus but same was overcrowded and some passengers were even traveling on the foot board. She denied a suggestion that the accident had taken place due to break failure/mechanical defect and reiterated that the accident was due to rash and negligent driving of Respondent No. 1.
23. Other suggestions contrary to her case were denied by her.
24. Sh. Shishir Kumar Rout, Claimant in claim petition no. 59/11/10 had entered the witness box as PW3 and in his examination in chief he proved his treatment record of Safdarjang Hospital as Ex. PW1/13, his treatment at private hospitals as Ex. PW1/45, bills for cost of treatment as Ex. PW1/610 totaling Rs. 2,375/ and wages slip of Home Tech Services Pvt. Ltd. for the month of September, 2010 as Ex. PW1/11. He also proved his Voter Card and PAN Card as Ex. PW1/1213 respectively. (All these documents should have been exhibited as Ex. PW3/113).
25. In cross examination, he deposed that he was discharged from the hospital on the same date and other suggestions contrary to his case were denied by him.
26. Smt. Sabita Biswas one of the claimants in Claim Petition No. 58/11/10, widow of late Sh. Shambhu Biswas, the deceased, had entered in the witness box as PW4 and proved MACT No.77/11/10, 58/11/10, 59/11/10, 60/11/10, 61/11/10, 62/11/10, 63/11/10, 71/11/10, 74/11/10, 75/11/10 & 76/11/10 Page 16 of 40 a certificate dated 15.07.10 given by Apex Logistics - Human Resources - Manpower Supply, as Ex. PW4/1. As per this, total wages of the said deceased were Rs. 13,857/ in the month of May, 2010.
27. These claimants also examined a witness from the office of employer of the deceased, PW7, Sh. Deen Bandhu Jha who produced register of wages from February, 2010 till June, 2010 as Ex. PW7/2. As per this, salary drawn by the deceased for the month of May, 2010 was Rs. 13,857/. As per documents produced by employer of the deceased, the date of birth of the deceased was 30.07.1958.
28. In cross examination, PW7 stated that salary to the deceased used to be given on the basis of number of days for which he worked in a month. There was no fixed salary month wise.
29. Smt. Ramwati, claimant in Claim Petition No. 63/11/10 had entered in the witness box as PW6 and during her examination in chief, she proved her treatment record at Safdarjang Hospital as Ex. PW6/1.
30. In cross examination, she stated that she has no documentary evidence to show that at the time of accident, she was an employee of M/s. Updaters Services Pvt. Ltd. Other suggestions contrary to her case were denied by her.
31. Sh. Rohtash Kumar, claimant in Claim Petition No. 62/11/10 had entered in the witness box as PW7 (this witness should have been shown as PW8) and proved his treatment record at Safdarjang Hospital as Ex. PW7/13. Pay MACT No.77/11/10, 58/11/10, 59/11/10, 60/11/10, 61/11/10, 62/11/10, 63/11/10, 71/11/10, 74/11/10, 75/11/10 & 76/11/10 Page 17 of 40 slip for the month of October, 2010 given to this claimant by the office of Commissioner of Customs (Import and General) was proved as Ex. PW7/4. He proved his service identity card and voter card as Ex. PW7/56 respectively. (These should have been exhibited as Ex. PW8/16).
32. Sh. Babloo, claimant in Claim Petition No. 76/11/10 appeared in the witness box as PW8 (in fact this witness was PW9) and proved his treatment record at Safdarjang Hospital as Ex. PW8/1.
33. These are the only witnesses which were examined by different claimants in support of their case.
34. Claimant Sh. Anil Kumar, Claim Petition No. 75/11/10, Sh. Subhash, claimant in Claim Petition No. 74/11/10, Sh. Krishna Mohan, claimant in Claim Petition No. 60/11/10 and Sh. Om Prakash Tiwari, claimant in Claim Petition No. 61/11/10 did not enter in the witness box to prove compensation payable to them.
35. On behalf of the insurance company, its Manager (Legal) had entered in the witness box as R3W1 and had proved notice under Order 12 Rule 8 of CPC issued to the driver and owner of the vehicle asking for RC, Permit, Fitness and Driving License of the driver driving the offending vehicle at the time of accident, as Ex. R3W1/1. The postal receipts as per which these notices were sent were proved as Ex. R3W1/23. CertificatecumPolicy Schedule of passenger carrying vehicle package policy of the offending vehicle with sitting capacity 15 was proved as Ex. R3W1/4. This witness MACT No.77/11/10, 58/11/10, 59/11/10, 60/11/10, 61/11/10, 62/11/10, 63/11/10, 71/11/10, 74/11/10, 75/11/10 & 76/11/10 Page 18 of 40 stated that the breach committed by the insured is that there were more passengers than prescribed in the policy in the vehicle at the time of accident.
36. Arguments were addressed by Sh. T.R. Kashyap, Sh.
R.K. Singh, Sh. Dilip Kumar Mishra, learned Counsels for the claimants and Sh. Mehtab Singh, learned Counsel for the insurance company.
ISSUE NO. 1:
37. Burden of proving this issue is on the claimants.
38. For succeeding in a claim petition filed under Section 166 of the Motor Vehicles Act, it is for the claimants to prove that the vehicle which caused the accident was being driven rashly and negligently by its driver.
39. This is sine qua non for getting the relief.
40. Claimants in claim petitions arising out of fatal injuries suffered by Sh. Rohtash Kumar and Sh. Shambhu Biswas have not examined any eye witness to prove rash and negligent driving by Respondent No. 1.
41. However, one of the claimants Smt. Rajwati who had suffered injuries in the accident has made allegations in her claim petition that the offending vehicle was being driven in a rash and negligent and zigzag manner and had run over the footpath resulting in the accident.
42. In spite of several opportunities, Respondent No. 1 did not file any written statement denying allegations of rash and negligent driving made against him.
43. When the claimant Smt. Rajwati had entered in the MACT No.77/11/10, 58/11/10, 59/11/10, 60/11/10, 61/11/10, 62/11/10, 63/11/10, 71/11/10, 74/11/10, 75/11/10 & 76/11/10 Page 19 of 40 witness box and had repeated her allegations of rash and negligent driving against Respondent No. 1, she was not cross examined by Respondent No. 1 who even did not enter in the witness box to prove his innocence.
44. Perusal of Site Plan shows that the offending vehicle had run over the foot path and had got overturned. This is prima facie evidence of negligence of Respondent No. 1 in driving the offending vehicle in a rash and negligent manner.
45. Police after investigation has filed charge sheet against Respondent No. 1 which is also prima facie suggestive of negligence of Respondent No. 1.
46. In Renu Bala Paul & Ors. v. Bani Chakraborty & Ors. 1999 ACJ 634, the Hon'ble Gawhati High Court has observed as under: "In deciding a matter tribunal should bear in mind the caution struck by the Apex Court that a claim before the Motor Accidents Claims Tribunal is neither a criminal case nor a civil case. In a criminal case in order to have conviction, the matter is to be proved beyond reasonable doubt and in a civil case the matter is to be decided on the basis of preponderance of evidence, but in a claim before the Motor Accidents Claims Tribunal the standard of proof is much below than what is required in a criminal case as well as in a civil case. No doubt before the tribunal there must be some material on the basis of which the tribunal can arrive or decide things necessary to be decided for awarding compensation. But the tribunal is not expected to take or to adopt the nicety of a civil or of a criminal case. After all, it is a summary MACT No.77/11/10, 58/11/10, 59/11/10, 60/11/10, 61/11/10, 62/11/10, 63/11/10, 71/11/10, 74/11/10, 75/11/10 & 76/11/10 Page 20 of 40 inquiry and this is a legislation for the welfare of the society"
47. In the case of National Insurance Co. Ltd. v. Vijay Laxmi & Ors. MAC APP. No. 375/06 dated 05.07.12, the Hon'ble High Court of Delhi has held as under: "8. In Bimla Devi and Ors. v. Himachal Road Transport Corporation and Ors., (2009) 13 SC 530, the Supreme Court held that in a petition under Section 166 of the Act, the Claimants were merely to establish their case on the touchstone of preponderance of probability and holistic view is to be taken while dealing with the Claim Petition under the Motor Vehicles Act. Para 15 of the report is extracted hereunder: "15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was 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."
9. The report in Bimla Devi (Supra) was relied on by the Supreme Court in its latest judgments in Parmeshwari v. Amir Chand (2011) 11 SCC 635 and Kusum Lata v. Satbir, (2011) 3 SCC 646."
48. In the case of National Insurance Company Ltd. v.
Pushpa Rana & Ors.: 2009 ACJ 287, the Hon'ble High Court of Delhi has held that: "The last contention of the appellant insurance company is that the respondentsclaimants should have proved negligence on the part of the driver and in this regard the counsel has placed MACT No.77/11/10, 58/11/10, 59/11/10, 60/11/10, 61/11/10, 62/11/10, 63/11/10, 71/11/10, 74/11/10, 75/11/10 & 76/11/10 Page 21 of 40 reliance on the judgment of the Hon'ble Apex Court in Oriental Insurance Co. Ltd. v. Meena Variyal (Supra). On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced: (i) certified copy of the criminal record of criminal case in F.I.R No. 955 of 2004, pertaining to involvement of the offending vehicle; (ii) criminal record showing completion of investigation of police and issue of chargesheet under Sections 279/304A, Indian Penal Code against the driver; (iii) certified copy of F.I.R., wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of the deceased. These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under the Motor Vehicles Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Hence, this contention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on the part of the driver."
49. This case was noticed by Hon'ble High Court of Delhi in the case titled as Cholamandalam M.S. General Insurance Co. Ltd. v. Kamlesh: 2009 (3) AD (Delhi) 310 where adverse inference was drawn because the driver of the offending vehicle had not appeared in the witness box to corroborate his defence taken in the written statement. It was noted that there is nothing on record to show that the claimant had any enmity with the driver of offending vehicle so as to falsely implicate him in the case.
50. Therefore, this issue is decided in favour of claimants and against the respondents.
MACT No.77/11/10, 58/11/10, 59/11/10, 60/11/10, 61/11/10, 62/11/10, 63/11/10, 71/11/10, 74/11/10, 75/11/10 & 76/11/10 Page 22 of 40ISSUE NO. 2:
51. First, compensation payable to the legal heirs of the deceased Sh. Rohtash Kumar in Claim Petition No. 77/11/10 titled as Smt. Basanti & Ors. v. Sh. Bijender Panchal & Ors. is being taken up for consideration.
52. As per evidence of PW5, Shri B.S. Kaushik, the deceased was employed with M/s. JAC AIR SERVICES PVT. LTD. since 13th April, 2002 as a Loader. Income of the deceased in the month of May, 2010, as per Ex. PW5/2, was Rs. 8,669/ per month.
53. PW5 has stated that bonus @ 10% of annual salary is given to the employees. On 01.10.09, the deceased had received a bonus of Rs. 6,834/. Therefore, deceased had future prospects.
54. Moreover, in the case of Rajesh & Others Vs. Rajbir Singh & Others, 2013(6) SCALE 563 decided by the Hon'ble Supreme Court of India, it is held as under: "11. Since, the court in Santosh Devi's case (supra) actually intended to follow the principle in the case of salaried persons as laid down in Sarla Verma's case (supra) and to make it applicable also to the self employed and persons on fixed wages, it is clarified that the increase in the case of those groups is not always 30%; 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 below 40 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 MACT No.77/11/10, 58/11/10, 59/11/10, 60/11/10, 61/11/10, 62/11/10, 63/11/10, 71/11/10, 74/11/10, 75/11/10 & 76/11/10 Page 23 of 40 deceased was in the age group of 40 to 50 years."
55. The facts of this case are on much better footing because the deceased was a regular employee since April, 2002 and there is a provision of 10% bonus which used to be given every year to the deceased.
56. Since the deceased was more than 40 years of age, the claimants are entitled to compensation for loss of future prospects to an extent of 30% of the last drawn salary of the deceased.
57. Therefore, income of the deceased would be taken as Rs. 11,269/ per month i.e. Rs. 8,669/ + Rs. 2,600/.
58. Claimants have claimed that there were 8 dependents on the deceased.
59. In the Ration Card of the deceased, names of his parents are not shown. But absence of names in the Ration Card will not automatically result in an inference that the parents were not dependent on the deceased.
60. Even if only mother of the deceased and his widow, four daughters and one son are treated as dependents on the deceased, deduction for personal expenses will be 1/5th.
61. Therefore, financial loss for the claimants on the death of the deceased will be Rs. 9,015/ per month or Rs. 1,08,180/ p.a.
62. Next question is of multiplier.
63. Claimants have stated that the age of the deceased was 47 years at the time of his death.
64. When PW5 entered in the witness box he had MACT No.77/11/10, 58/11/10, 59/11/10, 60/11/10, 61/11/10, 62/11/10, 63/11/10, 71/11/10, 74/11/10, 75/11/10 & 76/11/10 Page 24 of 40 produced employment record of the deceased which revealed that while seeking employment the deceased had produced his school leaving certificate as per which his year of birth is 1962.
65. Therefore, for deciding the multiplier, age of the deceased would be treated as 48 years.
66. As per Smt. Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr., 2009 (6) SCALE 129, the multiplier applicable will be of 13 and Loss of Dependency for the family will be Rs. 14,06,349/ i. e. Rs. 1,08,180/ x 13.
67. So far as loss of consortium for the widow of the deceased is concerned, the Hon'ble Supreme Court of India in the case of Rajesh & Others (Supra) has held as under: "In legal parlance,'consortium' is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. That non pecuniary head of damages has not been properly understood by our Courts. The loss of companionship, love, care and protection, etc., the spouse is entitled to get, has to be compensated appropriately. The concept of non pecuniary damage for loss of consortium is one of the major heads of award of compensation in other parts of the world more particularly in the United States of America, Australia, etc. English Courts have also recognized the right of a spouse to get compensation even during the period of temporary disablement. By loss of consortium, the courts have made an attempt to compensate the loss of spouse's affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other MACT No.77/11/10, 58/11/10, 59/11/10, 60/11/10, 61/11/10, 62/11/10, 63/11/10, 71/11/10, 74/11/10, 75/11/10 & 76/11/10 Page 25 of 40 countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are of the view that it would only be just and reasonable that the courts award at least Rupees one lakh for loss of consortium."
68. Therefore, for Loss of Consortium, widow of the deceased is granted a compensation of Rs. 1,00,000/.
69. Further, referring to the funeral expenses, the Hon'ble Supreme Court has held in para 21 as under: "21. We may also take judicial notice of the fact that the Tribunals have been quite frugal with regard to award of compensation under the head of 'Funeral Expenses'. The 'Price Index', it is a fact has gone up in that regard also. The head 'Funeral Expenses' does not mean the fee paid in the crematorium or fee paid for the use of space in the cemetery. There are many other expenses in connection with funeral and, if the deceased is follower of any particular religion, there are several religious practices and conventions pursuant to death in a family. All those are quite expensive. Therefore, we are of the view that it will be just, fair and equitable, under the head of Funeral Expenses', in the absence of evidence to the contrary for higher expenses, to award at least an amount of Rs. 25,000/."
70. Therefore, Rs. 25,000/ is awarded for Funeral Expenses.
71. In the case of Rajesh (Supra), compensation of Rs.
1,00,000/ is awarded for loss of care and guidance for minor children. Therefore, these claimants are also entitled to a compensation of Rs. 1,00,000/ for Loss of Care and MACT No.77/11/10, 58/11/10, 59/11/10, 60/11/10, 61/11/10, 62/11/10, 63/11/10, 71/11/10, 74/11/10, 75/11/10 & 76/11/10 Page 26 of 40 Guidance.
72. Hence, total compensation payable to the claimants would be Rs. 16,31,349/ which shall be payable with interest @ 7.5% per annum from the date of filing of the petition, which is 10.08.2010 till its realization.
73. Compensation granted vide interim award shall be deducted from this compensation which is finally awarded in favour of claimants now.
74. The argument of counsel for insurance company to deduct insurance amount received by LRs of the deceased as a result of Group Personal Accident Insurance is rejected relying on the judgments of Hon'ble Supreme Court of India in the case of Helen C. Rebello (Mrs.) & Ors. v. Maharashtra State Road Transport Corporation & Anr. reported in (1999) 1 SCC 90 which is followed by the Hon'ble Supreme Court again in the case of Vimal Kumar & Ors. v. Kishore Dan & Ors., C.A. No. 5513/12 dated 03.05.13.
75. Financial needs of the claimants were noted and the widow of the deceased had stated that she has to solemnize marriages of her two daughters. She had stated that she has no source of income and she works as a farm labourer. Therefore, she had requested that entire compensation be released in her favour.
76. Considering financial needs expressed by the widow of the deceased, the compensation shall be released in favour of the claimants without any precondition of FDRs. However, compensation of minor claimants shall not be MACT No.77/11/10, 58/11/10, 59/11/10, 60/11/10, 61/11/10, 62/11/10, 63/11/10, 71/11/10, 74/11/10, 75/11/10 & 76/11/10 Page 27 of 40 released till the time they attain age of 21 years.
77. The compensation shall be apportioned in following manner: i. 35%, out of the total compensation awarded, with proportionate interest shall be payable in favour of Claimant No. 1, widow of the deceased, Basanti.
ii. 5% out of the total awarded compensation with proportionate interest shall be payable in favour of Claimant No. 2 daughter of the deceased, Chandraprabha.
iii. 5% out of the total awarded compensation with proportionate interest shall be payable in favour of Claimant No. 3 daughter of the deceased, Kusum.
iv. 15% out of the total awarded compensation with proportionate interest shall be payable in favour of Claimant No. 4 daughter of the deceased, Tripti.
v. 20% out of the total awarded compensation with proportionate interest shall be payable in favour of Claimant No. 5 son of the deceased, Krishan Kumar.
vi. 15% out of the total awarded compensation with proportionate interest shall be payable in favour of Claimant No. 6 daughter of the deceased, Leesa.
vii. 5% out of the total awarded compensation with proportionate interest shall be payable in favour of Claimant No. 8 mother of the deceased, Luxmi Devi.
78. Next, compensation payable to claimants in the MACT No.77/11/10, 58/11/10, 59/11/10, 60/11/10, 61/11/10, 62/11/10, 63/11/10, 71/11/10, 74/11/10, 75/11/10 & 76/11/10 Page 28 of 40 case titled as Smt. Sabita Biswas & Anr. which is MACT No. 58/11 which is also a fatal injury case is being taken up.
79. These claimants have stated in their claim petition that Sh. Shambhu Biswas (the deceased) was employed with L & T at a salary of Rs. 12,000/ per month and he was 52 years of age at the time of his death. These claimants have claimed a compensation of Rs. 30 lacs with interest @ 18% p.a.
80. As per evidence of PW7 Sh. Deen Bandhu Jha, salary of the deceased in the month of May, 2010 was Rs. 13,857/.
81. Since the deceased was more than 50 years of age and since he was in a private employment and would have retired one day, the claimants are not entitled to any compensation for loss of future prospects.
82. There are two dependents i.e. widow and the daughter. Therefore, deduction will be 1/3rd for personal expenses of the deceased. After 1/3rd deduction, financial loss for the family will be Rs. 9,238/ per month or Rs. 1,10,856/ p.a.
83. Claimants have stated that the deceased was 52 years of age at the time of his death.
84. In cross examination, no suggestion was given to the witness that the deceased was not 52 years of age. Once age of deceased is 52 years, multiplier of 11 will apply and Loss of Dependency for the family will be Rs. 12,19,416/ i.e. Rs. 1,10,856/ x 11.
85. Again relying on Rajesh (supra), a compensation of MACT No.77/11/10, 58/11/10, 59/11/10, 60/11/10, 61/11/10, 62/11/10, 63/11/10, 71/11/10, 74/11/10, 75/11/10 & 76/11/10 Page 29 of 40 Rs. 25,000/ is awarded towards Cremation Charges.
86. Rs. 1,00,000/ is awarded towards Loss of Consortium for the widow of the deceased.
87. Rs. 1,00,000/ is awarded towards Loss of Love and Affection Care and Guidance for the daughter of the deceased.
88. Therefore, total compensation payable to the claimant would be Rs. 14,44,416/ which will be paid with interest @ 7.5% p.a. from the date of filing of this claim petition which is 28.07.10 till its realisation.
89. While recording financial needs the widow of this deceased had stated that she has to marry her daughter and she has no source of income. Therefore, compensation shall be released in favour of claimants without any precondition of FDRs.
90. In view of this, the entire compensation shall be released in equal proportion in favour of two claimants.
91. Next, compensation payable to Sh. Shishir Kumar Rout who is claimant in MACT No. 59/11 is being taken up for consideration.
92. This claimant has stated that he had suffered grievous injuries on his face and in his eye in the accident. He has stated that at the time of accident he was employed with Home Tech Services Pvt. Ltd. at a salary of Rs. 8,100/. He has claimed a compensation of Rs. 5 lacs with interest @ 12% p.a. from the date of claim petition till its realization.
93. As per MLC, injuries are simple. He has not MACT No.77/11/10, 58/11/10, 59/11/10, 60/11/10, 61/11/10, 62/11/10, 63/11/10, 71/11/10, 74/11/10, 75/11/10 & 76/11/10 Page 30 of 40 suffered any bony injury. As per Ex. PW1/1, his treatment record in Safdarjang Hospital he has suffered CLW on forehead, upper eye lid and nose. He had undergone suturing under local anesthesia. His treatment continued at least till 09.07.10.
94. Therefore, for Pain and Suffering he is awarded a compensation of Rs. 10,000/.
95. Medical bills worth Rs. 2,975/ are on record.
Therefore, for Cost of Treatment he is awarded a compensation of Rs. 3,000/.
96. This claimant is also awarded a compensation of Rs. 5,000/ for Special Diet and Rs. 5,000/ for Conveyance Charges.
97. The claimant has proved his salary slip for the month of September, 2010 and not of June, 2010 when the accident had taken place. Therefore, no reliance can be placed on salary slip. On the other hand, reliance is placed on minimum wages prevailing at the time of accident which were Rs. 5,278/ per month. On lump sum basis, he is awarded a compensation of Rs. 5,000/ for Loss of Wages.
98. Therefore, total compensation payable to this claimant would be Rs. 28,000/ which shall be payable with interest @ 7.5% p.a. from the date of filing of claim petition which is 18.12.2010 till its realization.
99. Now compensation payable to claimant Sh.
Krishna Mohan in case titled as Sh. Krishna Mohan v. Bijender Panchal & Ors. which is MACT No. 60/11/10 is being MACT No.77/11/10, 58/11/10, 59/11/10, 60/11/10, 61/11/10, 62/11/10, 63/11/10, 71/11/10, 74/11/10, 75/11/10 & 76/11/10 Page 31 of 40 taken up for consideration. This claimant has stated in his claim petition that he was also grievously injured in the same road traffic accident. He was doing private job at a salary of Rs. 5,898/ per month with Antelec Ltd., New Delhi. He has claimed a compensation of Rs. 2 lacs with interest @ 12% p.a.
100. As per MLC, the injuries are simple and it is noted that he has not suffered any bony injury. However, perusal of Xray shows that the injury would be grievous. Unfortunately, this witness has not entered in the witness box. Therefore, in absence of any evidence no compensation can be awarded to this claimant.
101. Next, compensation payable to claimant Sh. Om Prakash Tiwari who has filed Claim Petition No. 61/11/10 is being taken up for consideration.
102. As per MLC, injuries are grievous. He had remained admitted in the Metro Hospital and Heart Institute from 29.06.10 to 01.07.10 as a case of 'Concussion Head Injury'.
103. Unfortunately, this claimant has also not entered in the witness box. Therefore, no compensation can be given to him.
104. Next compensation payable to Sh. Rohtash claimant in Claim Petition No. 62/11/10 is being taken up for consideration.
105. This claimant has stated that he is employed in Ministry of Finance at a salary of Rs. 15,981/ and had suffered grievous injuries in the accident. He has claimed a MACT No.77/11/10, 58/11/10, 59/11/10, 60/11/10, 61/11/10, 62/11/10, 63/11/10, 71/11/10, 74/11/10, 75/11/10 & 76/11/10 Page 32 of 40 compensation of Rs. 1 lac with interest @ 12% p.a. from the date of claim petition till its realization.
106. In support of his claim petition he has relied on treatment record of Safdarjang Hospital. He was advised medical rest from 29.06.10 to 17.07.10. Although he had suffered head injury but the injuries were not grievous as fortunately he had not suffered any bony injury.
107. Therefore, claimant is entitled to Rs. 10,000/ towards Pain and Suffering.
108. Claimant is entitled to Rs. 5,000/ towards Special Diet and Rs. 5,000/ towards Conveyance Charges.
109. With the kind of injuries suffered by him it can be assumed that he would have suffered loss of wages at least for a period of 20 days. Therefore, he is awarded a compensation of Rs. 10,000/ towards Loss of Wages because his salary was around Rs. 15,981/ per month at the time of accident as per Ex. PW7/4.
110. Therefore, total compensation payable to this claimant will be Rs. 30,000/ which shall be payable @ 7.5% p.a. from the date of filing of claim petition which is 18.12.10 till its realization.
111. Now, compensation payable to Smt. Ramwati claimant in Claim Petition No. 63/11/10 is being taken up for consideration.
112. This claimant has stated in her claim petition that she was 39 years of age at the time of accident and was working as a Sweeper with M/s. Updater Services Pvt. Ltd. at a MACT No.77/11/10, 58/11/10, 59/11/10, 60/11/10, 61/11/10, 62/11/10, 63/11/10, 71/11/10, 74/11/10, 75/11/10 & 76/11/10 Page 33 of 40 salary of Rs. 8,685/ per month. She has stated that she had suffered grievous injuries in the accident and claimed a compensation of Rs. 5,00,000/ with interest @ 12% per annum.
113. As per MLC, injuries are grievous which are fracture superior pubic remi of left side.
114. Therefore, for Pain and Suffering she is awarded a compensation of Rs. 25,000/.
115. She has stated that she has spent Rs. 7,863/ on her treatment on 30.06.10, Rs. 6,955/ on her treatment on 08.07.10 and Rs. 8,316/ on her treatment on 17.07.10 and Rs. 9,520/ on her treatment on 02.08.10. A receipt for a sum of Rs. 1,319/ for purchase of medicines is on record.
116. Neither this claimant has filed any receipt for cost of treatment nor examined the doctor to prove expenses incurred on her treatment. However, she has proved that she was treated at the Heart Centre which is a private hospital. Therefore, on lump sum basis she is awarded a compensation of Rs. 15,000/ towards Cost of Treatment.
117. With the kind of injuries suffered by the claimant it can be assumed that she would have suffered loss of wages at least for three months. She has not proved her salary in accordance with law. Therefore, relying on minimum wages she is granted a compensation of Rs. 15,834/ for Loss of Wages and Rs. 10,556/ for Attendant's Charges for two months i.e. Rs. 5,278/ x 2.
118. Therefore, total compensation payable to this MACT No.77/11/10, 58/11/10, 59/11/10, 60/11/10, 61/11/10, 62/11/10, 63/11/10, 71/11/10, 74/11/10, 75/11/10 & 76/11/10 Page 34 of 40 claimant will be Rs. 66,390/ which shall be payable @ 7.5% p.a. from the date of filing of claim petition which is 18.12.10 till its realization.
119. Next, compensation payable to Smt. Rajwati who is claimant in MACT No. 71/11/10 is being taken up for consideration.
120. This claimant had remained admitted in Safdarjang Hospital from 29.06.10 till 30.06.10 as a case of fracture right medial malleolus. At the time of discharge, she was advised limb elevation. Her treatment continued atleast till 15.04.11 when she was advised to take pain killers and to review after three months.
121. Therefore, for Pain and Suffering this claimant is awarded compensation of Rs. 30,000/.
122. Medical bills worth Rs. 8,685/ are on record. She is entitled for a compensation of Rs. 8,685/ towards Cost of Treatment.
123. This claimant has placed on record certificate of employer certifying that she was drawing a salary of Rs. 8,685/ per month. She has also placed on record Identity Card issued to her by Bureau of Civil Aviation. However, she has not examined any witness from the employer's office. Therefore, her salary cannot be treated as Rs. 8,685/ as mentioned in Ex. PW1/32.
124. Minimum wages at the time of accident were Rs.
5,278/ per month. As her treatment had continued till 15.04.11 she is granted compensation for Loss of Wages for 10 MACT No.77/11/10, 58/11/10, 59/11/10, 60/11/10, 61/11/10, 62/11/10, 63/11/10, 71/11/10, 74/11/10, 75/11/10 & 76/11/10 Page 35 of 40 months i.e. Rs. 5,278 x 10 = Rs. 52,780/.
125. With the kind of injuries suffered by her she would have needed the help of an attendant at least for a period of three months.
126. It is well settled that a victim of an accident has to be compensated in terms of money even if gratuitous services are rendered by a family member.
127. In Delhi Transport Corporation and Anr. v. Lalita:
AIR 1981 Delhi 558, the Hon'ble High Court of Delhi has held that there cannot be any deduction if domestic help is obtained from a family member. The Hon'ble High Court has observed as under: "........... A wrong doer cannot take advantage of this 'domestic element'. If the mother renders service to her, instead of a nurse, it is right and just that she should recover compensation for the value of the services that the mother has rendered to her. Mother's services were necessitated by the wrong doing and the injured should be compensated for it. (Cunnigharn v. Harrison 3 All E.R. 463) The services of a wife and mother are worth more than those of a housekeeper because she is in constant attendance and does many more things than a housekeeper. (Regan v. Williamson (1976) 2 All E.R. 241)."
128. This judgment was again relied upon by the Hon'ble High Court of Delhi in the case of Narayan Bahadur v. Sumeet Gupta and Anr., MAC APP. No. 762/11 dated 04.07.12.
129. Therefore, claimant is awarded a compensation of Rs. 15,834/ towards Attendant's Charges.
MACT No.77/11/10, 58/11/10, 59/11/10, 60/11/10, 61/11/10, 62/11/10, 63/11/10, 71/11/10, 74/11/10, 75/11/10 & 76/11/10 Page 36 of 40130. Claimant is also awarded a compensation of Rs. , 5,000/ towards Special Diet and Rs. 5,000/ towards Conveyance Charges.
131. Therefore, total compensation payable to the claimant would be Rs. 1,17,299/ which will be paid with interest @ 7.5% p.a. from the date of filing of this claim petition which is 25.10.2010 till its realisation.
132. Next, compensation payable to claimant Sh.
Subhash in Claim Petition No. 74/11/10 is being taken up for consideration.
133. This claimant has suffered simple injuries in the accident but has not adduced any evidence in support of his claim petition. Therefore, no compensation can be awarded in favour of this claimant in absence of any evidence.
134. Next, compensation payable to Sh. Anil Kumar claimant in Claim Petition No. 75/11/10 is being taken up for consideration.
135. This claimant has suffered simple injuries as per MLC and he has not adduced any evidence in support of his claim petition. Therefore, no compensation can be awarded in favour of this claimant.
136. Next compensation payable to Sh. Master Babloo, Claimant in MACT No. 76/11/10 is being taken up for consideration.
137. This claimant has stated that he was 23 years of age at the time of accident and was doing private job at IGI Airport at a monthly salary of Rs. 6,000/ per month. He has claimed MACT No.77/11/10, 58/11/10, 59/11/10, 60/11/10, 61/11/10, 62/11/10, 63/11/10, 71/11/10, 74/11/10, 75/11/10 & 76/11/10 Page 37 of 40 that he has suffered grievous injuries in the accident and therefore prayed for a compensation of Rs. 5 lacs with interest @ 18% p.a. from the date of filing of claim petition till its realization.
138. Master Babloo has stated similar facts in his evidence by way of affidavit as were stated by him in his claim petition. He relied on treatment record of Safdarjang Hospital which was proved as Ex. PW8/1. He had suffered fracture superior and inferior pubic ramy left.
139. During his treatment in Safdarjang Hospital he had reported 'no passing of urine' and pain in spine.
140. At the time of discharge he was advised 'strict bed rest' and 'foley catheter care as advised'.
141. Therefore, for Pain and Suffering he is awarded a compensation of Rs. 35,000/.
142. With the kind of injuries suffered by him he would have suffered loss of wages at least for a period of three months. Relying on minimum wages which were Rs. 5,278/ per month, he is awarded a compensation of Rs. 15,834/ towards Loss of Wages.
143. He would have needed help of an attendant during his treatment period of three months.
144. Again relying on minimum wages he is awarded a compensation of Rs. 15,834/ towards Attendant's Charges.
145. Additionally, he is awarded Rs. 5,000/ towards Special Diet and Rs. 5,000/ towards Conveyance Charges.
146. Therefore, total compensation payable to the MACT No.77/11/10, 58/11/10, 59/11/10, 60/11/10, 61/11/10, 62/11/10, 63/11/10, 71/11/10, 74/11/10, 75/11/10 & 76/11/10 Page 38 of 40 claimant would be Rs. 76,668/ which will be paid with interest @ 7.5% p.a. from the date of filing of this claim petition which is 23.09.10 till its realisation.
147. Last question is which of the respondents is liable to pay this compensation to the claimants.
148. The defence of insurance company is that the sitting capacity of the vehicle was 15 but more than 15 passengers were traveling in the vehicle. Therefore, it has no liability to pay any compensation to any claimant or to indemnify the insured.
149. To begin with, there were 22 affected parties in this accident. However, Investigating Officer could not trace where abouts of six claimants and no DAR was filed qua those injured persons. Out of remaining 16 persons, only 11 of them filed claim petitions and remaining five namely Sh. Chander Hans, Sh. Sharif Khan, Sh. Man Singh, Sh. Thomy John and Sh. Shahrukh Khan neither filed any claim petition nor appeared in D.A. Report.
150. Therefore, practically there are only 11 claimants and as noted in the judgment, relief is given only to 7 claimants.
151. At least for 15 passengers, the insurance company had liability to pay the compensation and even if there were more than 15 persons who were entitled for compensation, in that event the Tribunal should take into account, the higher of the 15 awards, add them up and direct the insurance company to deposit that lump sum amount. Thereafter, said MACT No.77/11/10, 58/11/10, 59/11/10, 60/11/10, 61/11/10, 62/11/10, 63/11/10, 71/11/10, 74/11/10, 75/11/10 & 76/11/10 Page 39 of 40 compensation is to be distributed proportionately to all the claimants and directing the claimants to recover balance compensation from the owner of the vehicle. For this proposition of law reliance can be placed on the judgment of Hon'ble Supreme Court of India in the case of National Insurance Co. Ltd. v. Anjana Sham AIR 2007 SC 2870.
152. As in this case compensation is to be given only to seven claimants, this compensation shall be deposited by insurance company which be deposited within 30 days from today under intimation to the claimants and their counsels by registered post.
153. Nazir of the court shall also inform the claimants as well as counsels for claimants when the compensation is deposited.
154. Copy of this order be given dasti to all the parties.
155. File be consigned to the Record Room.
156. Ahlmad is directed to put up this file again for ensuring compliance on 15.10.2013.
Announced in the Open Court.
On the 10th day of July, 2013 (ARUN BHARDWAJ) PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNALII DWARKA COURTS, NEW DELHI.
MACT No.77/11/10, 58/11/10, 59/11/10, 60/11/10, 61/11/10, 62/11/10, 63/11/10, 71/11/10, 74/11/10, 75/11/10 & 76/11/10 Page 40 of 40