Delhi District Court
Smt. Omwati W/O Late Sh. Rajinder Prasad vs Sh. Vijay S/O Shriram Jaggi (Owner) on 10 December, 2013
IN THE COURT OF SH. ARVIND KUMAR: PRESIDING OFFICER MOTOR
ACCIDENT CLAIM TRIBUNAL KARKARDOOMA COURTS: DELHI
M.A.C. Petition No.: 511/10
Unique Case I.D No: 02402C019026010
1. Smt. Omwati W/o Late Sh. Rajinder Prasad
2. Mamta W/o Sh. Mukesh Gupta
3. Shailesh Maheshwari S/o Late Sh. Rajinder Prasad
4. Brijesh Kumar S/o Late Sh. Rajinder Prasad
5. Rashmi W/o Sh. Vikram
Petitioner no. 1 to 5 are r/o K-6/12, Gali no. 23,
West Ghonda Bhajanpura, Delhi-110053.
6. Sangeeta W/o Sh. Vijay Prakash
F-61C, Subhash Vihar, North Ghonda,
Gali no. 5, Delhi-110053. ... Petitioner
VERSUS
1. Sh. Vijay S/o Shriram Jaggi (owner)
R/o Shendi Pakhardi,
Tehsil & Distt. Ahmed Nagar,
Maharashtra.
2. The New India Assurance Company Ltd.
12/1, Jeevan Raksha Building,
Asaf Ali Road, New Delhi-110002
3. Sh. Ravinder Bor S/o Sh. Bhaskar Bor (Driver)
R/o Village Borwarhi, P.S. Nagar, Distt. Ahmed Nagar,
Maharashtra.
....Respondents
M.A.C. Petition No. 512/10
Unique Case I.D. No. :02402C019222010
1. Smt. Kamlesh Devi W/o Late Sh. Ranbir
2. Varsha Kumari D/o Late Sh. Ranbir
3. Jai Prakash S/o Late Sh. Ranbir
4. Robin Kumar S/o Late Sh. Ranbir
5. Jeetam Singh S/o Mata Prasad
6. Ram Beti W/o Sh. Jeetam Singh All R/o H.No. 281/2, Plot No. 54, Khara No. 1053, Ground Floor, Narayan Vihar, Prem Nagar-2, Delhi.
(Petitioner no. 2 to 4 are minor, through their mother and natural guardian, Smt. Kamlesh Devi of petitioner no. 1.) ... Petitioner M.A.C. Petition No: 511/10, 512/10, 515/10, 573/10 and 574/10 Page No. 1/28 VERSUS
1. Sh. Vijay S/o Shriram Jaggi (owner) R/o Shendi Pakhardi, Tehsil & Distt. Ahmed Nagar, Maharashtra.
2. The New India Assurance Company Ltd.
12/1, Jeevan Raksha Building, Asaf Ali Road, New Delhi-110002
3. Sh. Ravinder Bor S/o Sh. Bhaskar Bor (Driver) R/o Village Borwarhi, P.S. Nagar, Distt. Ahmed Nagar, Maharashtra.
......Respondents M.A.C. Petition No. 515/10 Unique Case I.D. No. :02402C0190252010
1. Sh. Shyam Sunder S/o Sh. Gautam Singh R/o Plot No. 17, Khasra No. 215, Narain Vihar, Prem Nagar, Delhi-110041. ... Petitioner VERSUS
1. Sh. Vijay S/o Shriram Jaggi (owner) R/o Shendi Pakhardi, Tehsil & Distt. Ahmed Nagar, Maharashtra.
2. The New India Assurance Company Ltd.
12/1, Jeevan Raksha Building, Asaf Ali Road, New Delhi-110002
3. Sh. Ravinder Bor S/o Sh. Bhaskar Bor (Driver) R/o Village Borwarhi, P.S. Nagar, Distt. Ahmed Nagar, Maharashtra.
......Respondents M.A.C. Petition No. 573/10 Unique Case I.D. No. :02402C0200572010
1. Sh. Khayali Ram Chaturvedi S/o Late Sh. Moti Ram Chaturvedi R/o D-149, Gali no. 7, Sanjay Mohall, Bhajan Pura, Delhi-110063. ... Petitioner VERSUS M.A.C. Petition No: 511/10, 512/10, 515/10, 573/10 and 574/10 Page No. 2/28
1. Sh. Vijay S/o Shriram Jaggi (owner) R/o Shendi Pakhardi, Tehsil & Distt. Ahmed Nagar, Maharashtra.
2. The New India Assurance Company Ltd.
12/1, Jeevan Raksha Building, Asaf Ali Road, New Delhi-110002
3. Sh. Ravinder Bor S/o Sh. Bhaskar Bor (Driver) R/o Village Borwarhi, P.S. Nagar, Distt. Ahmed Nagar, Maharashtra.
......Respondents M.A.C. Petition No. 574/10 Unique Case I.D. No. :02402C0200522010
1. Sh. Khayali Ram Chaturvedi S/o Late Sh. Moti Ram Chaturvedi
2. Triveni Chaturvedi S/o Khayali Ram Chaturvedi
3. Rajender Prasad S/o Khayali Ram Chaturvedi
4. Deep Chand S/o Khayali Ram Chaturvedi
5. Kastubha Nand S/o Sh. Khayali Ram Chaturvedi
6. Laxmi Narayan S/o Sh. Khayali Ram Chaturvedi ... Petitioner VERSUS
1. Sh. Vijay S/o Shriram Jaggi (owner) R/o Shendi Pakhardi, Tehsil & Distt. Ahmed Nagar, Maharashtra.
2. The New India Assurance Company Ltd.
12/1, Jeevan Raksha Building, Asaf Ali Road, New Delhi-110002
3. Sh. Ravinder Bor S/o Sh. Bhaskar Bor (Driver) R/o Village Borwarhi, P.S. Nagar, Distt. Ahmed Nagar, Maharashtra.
......Respondents
M.A.C. Petition No: 511/10, 512/10, 515/10, 573/10 and 574/10 Page No. 3/28
Presented on : 14.07.2010
Reserved for judgment : 12.11.2013
Judgment delivered on : 10.12.2013
JUDG MENT
1. By a common judgment, I am disposing of these five petitions as the claims are arising from the same accident involving the same vehicle. In MAC Petition No. 511/10, the petitioners put up a claim for Rs. 30,00,000/- (Rs. Thirty Lacs) towards the death of Sh. Rajinder Prashad. In MAC Petition No. 512/10, the petitioners put a claim of Rs. 30,00,000/- (Rs. Thirty Lacs) towards the death of Sh. Ranbir. In MAC Petition no. 515/10, the claimant, Sh. Shyam Sunder put up a claim for Rs. 10,00,000/- (Rs. Ten Lacs) towards the injuries suffered by him. In MAC Petition no. 573/10, the claimant, Sh. Khayali Ram Chaturvedi put up a claim of Rs. 10,00,000/- (Rs. Ten Lacs) towards the injuries suffered by him. In MAC Petition no. 574/10, the petitioners put a claim of Rs. 30,00,000/- (Thirty Lacs) towards the death of Smt. Gayatri Chaturvedi in road accident dt. 10.5.2010.
2. The brief facts, as stated by petitioners, are that on 10.5.2010, Sh. Rajender Prashad, Sh. Ranveer, Sh. Khyali Ram, Sh. Shyam Sunder, Smt. Gayatri Chaturvedi and some other persons were going to Amritsar from Mata Vaishno Devi in a bus bearing no. UP-17C-7066 and when the said bus reached at bypass chowk, Bariar, Gurdaspur, a tempo truck bearing no. MH-16Q-8215, driven at a high speed, rashly and negligently came from the side of bypass, on the wrong side and hit the bus as a result the bus no. UP-17C-7066 overturned and Sh. Rajinder Parshad, Ranveer and Smt. Gayatri Chaturvedi suffered fatal injuries. Sh. Shyam Sunder and Sh. Khayali Ram Chaturvedi suffered grievous injuries.
3. The petitioners, in petition no. 511/10, stated that Sh. Rajender Prashad suffered injuries and died on the way to the hospital. The M.A.C. Petition No: 511/10, 512/10, 515/10, 573/10 and 574/10 Page No. 4/28 petitioners stated that the deceased was 59 years of age and was earning Rs. 40,000/- per month.
4. The petitioners, in petition no. 512/10, stated that Sh. Ranveer suffered grievous injuries due to the accident and died on the way to the hospital. It is stated that the deceased, Sh. Ranvir was 35 years of age at the time of accident and was doing of work of Halwai (sweetmeat maker) earning Rs. 9,000/- per month.
5. The petitioner, in petition no. 515/10, stated that he suffered grievous injuries and was taken to civil hospital, Gurdaspur and had spent Rs. 80,000/- on treatment, medicine, conveyance and special diet. It is stated that petitioner suffered fracture of ribs, left hand, left shoulder besides head injuries. It is stated that petitioner was 27 years of age and was working as a Halwai (sweetmeat maker) and was earning Rs. 300/- per day.
6. The petitioner, in petition no. 573/10, stated that he suffered injuries and was taken to District Hospital, Gurdaspur Punjab, thereafter shifted to St. Stephens Hospital, Delhi. It is stated that petitioner incurred Rs. 80,000/- on treatment. It is stated that petitioner was 60 years of age at the time of accident and was doing private service and was earning Rs. 10,000/- per month.
7. The petitioners, in petition no. 574/10, stated that Smt. Gayatri Chaturvedi suffered grievous injuries and died on the way to the Hospital. It is stated that the deceased was 50 years of age and was a house wife.
8. The respondent no. 1/owner of the vehicle no. MH-16Q-8215 (initially respondent no. 4) filed written statement stating that he had sold the vehicle no. MH-16Q-8125 to Mr. Ishwar Chandra Kant Dhoka on 07.12.2009 and the possession was given to Sh. Ishwar C. Dhoka and as such the answering respondent was not responsible for the accident. The M.A.C. Petition No: 511/10, 512/10, 515/10, 573/10 and 574/10 Page No. 5/28 respondent no. 1 stated that he was neither the owner nor driver of the said vehicle and hence, had nothing to do with the accident.
9. The respondent no. 2 (initially respondent no. 5/Insurane company) filed written statement admitting that the vehicle no. MH-16Q-8215 was insured by respondent no. 1/owner vide policy no. 215400/31/2010/8782, for the period 25.3.2010 to 24.3.2011. It is further stated that claim petition was bad for non-joinder of the necessary parties as the driver of the vehicle no. MH-16Q-8215 had not been made party. It is also stated that there was negligence on part of the driver of bus no. UP-17C-7066 as the accident had taken place due to collision between the vehicle no. MH-16Q-8215 and bus no. UP-17C-7066. It is stated that vehicle no. MH-16Q-8215 was being used in violation of permit rules and regulations and the driver of the said vehicle was driving without holding any driving licence.
10. The respondent no. 3/driver of vehicle no. MH-16Q-8215 (initially respondent no. 6) did not contest the case and was proceeded ex-parte.
11. On the basis of the pleadings following issues were framed in petition no. 511/10 :-
1. Whether the deceased Sh. Rajinder Prasad suffered fatal injuries in the accident occurred on 10.05.2010 due to rash and negligent driving of vehicle no. MH-16Q-8215 (Tempo Truck) being driven by respondent no. 6 respectively? OPP
2. Whether the petitioners are entitled for any compensation, if so, to what amount and from whom?
3. Relief.
Following issues were framed in petition no. 512/10 M.A.C. Petition No: 511/10, 512/10, 515/10, 573/10 and 574/10 Page No. 6/28
1. Whether Sh. Ranbir suffered fatal injuries in the accident occurred on 10.05.2010 due to rash and negligent driving of vehicle No. MH-16Q-8215 (Tempo Truck) being driven by the respondent no. 6? (OPP)
2. Whether the petitioners are entitled for any compensation, if so, to what amount and from whom? (OPP)
3. Relief.
Following issues were framed in petition no. 515/10
1. Whether the petitioner suffered injuries in the accident occurred on 10.05.2010 due to rash and negligent driving of vehicle no. MH-16Q-8215 (Tempo Truck) being driven by respondent no. 6 respectively? OPP.
2. Whether the petitioners are entitled for any compensation, if so, to what amount and from whom? (OPP)
3. Relief.
Following issues were framed in petition no. 573/10
1. Whether the petitioner suffered injuries in the accident occurred on 10.05.2010 due to rash and negligent driving of vehicle no. MH-16Q-8215 (Tempo Truck) being driven by respondent no. 6 respectively? OPP
2. Whether the petitioners are entitled for any compensation, if so, to what amount and from whom? (OPP)
3. Relief.
M.A.C. Petition No: 511/10, 512/10, 515/10, 573/10 and 574/10 Page No. 7/28 Following issues were framed in petition no. 574/10
1. Whether the deceased Smt. Gayatri Chaturvedi suffered fatal injuries in the accident occurred on 10.05.2010 due to rash and negligent driving of vehicle no. MH-16Q-8215 (Tempo Truck) being driven by respondent no. 6 respectively ? OPP.
2. Whether the petitioners are entitled for any compensation, if so, to what amount and from whom? (OPP)
3. Relief.
12. All the cases were consolidated for recording common evidence. Smt. Kamlesh Devi (petitioner in petition no. 512/10) examined herself as PW 1, Smt. Omwati (petitioner in petition no. 511/10) examined herself as PW 2, Sh. Khayali Ram Chaturvedi (petitioner in petition no. 573/10), examined himself as PW 3 and Sh. Shyam Sunder (petitioner in petition no. 515/10) examined himself as PW 4. On the other hand, respondent no. 2/Insurance company examined Sh. Sunil Kumar Verma, A.O., as R5W1. The respondent no.1 & 3 did not lead any evidence.
13. I have heard counsels for the parties. My findings on issues are as under:
ISSUES NO. 1 in all the cases are connected hence are taken together
14. The PW 1, Smt Kamlesh Devi (petitioner in petition no. 512/10) stated that Sh. Ranveer suffered grievous injuries in the accident and died on the way to the hospital. It is stated that the deceased, Sh. Ranvir was 35 years of age at the time of accident and was doing the work of Halwai (sweetmeat maker) earning Rs. 9,000/- per month. The PW 1 exhibited the ration card as Ext. PW 1/1, death certificate of Ranveer Singh M.A.C. Petition No: 511/10, 512/10, 515/10, 573/10 and 574/10 Page No. 8/28 as Ext. PW 1/2, Election I-Card of Ranvir Singh as Ext. PW 1/3, her Election I-Card as Ext. PW 1/4. During cross-examination PW 1 stated that she did not witness the accident.
15. The PW 2, Smt. Omwati (petitioner in petition no. 511/10) stated that Sh. Rajender Prashad suffered grievous injuries and died on the way to the hospital. The PW 2 stated that the deceased was 59 years of age and was earning Rs.40,000/- per month. The PW2 exhibited the Voter I- Card as Ext. P-1, Voter I-Cards of Brijesh, Shailesh and Sangeeta as Ext. P-2, P-3 and P-4 respectively and criminal case record as Ext. PW 2/1. During cross-examination the PW 2 stated that she did not witness the accident.
16. The PW 3, Sh. Khayali Ram Chaturvedi (petitioner in petition no. 573/10) stated that he suffered injuries and was taken to District Hospital, Gurdaspur Punjab, thereafter he was shifted to St. Stephens Hospital, Delhi and the petitioner suffered injuries due to the accident. It is stated that petitioner incurred Rs. 80,000/- on treatment. It is stated that petitioner was 60 years of age at the time of accident and was doing private service and was earning Rs. 10,000/- per month. The PW 3 exhibited the Voter I- Card as Ext. P-1, his PAN card as Ext. P-2, Voter I-Card of Smt. Gayatri Chaturvedi as Ext. P-3, Ration Card as Ext. PW 3/1, treatment record and bills as Ext. PW 3/2. During cross examination the PW 3 stated that he was sitting on conductor seat that was just behind the cabin and front door and the speed of their bus was around 80 km per hour. The PW 3 stated that driver of the bus was also negligent to some extent and also stated that he was asleep when the accident had taken place and his wife had told him that an accident had taken place. The PW 3 stated that speed of the truck was around 100 km per hour and he had told the speed of the truck on the basis of assessment that their bus was overturned because of the accident. The PW 3 stated that he could not see the truck or its registration number as he was not conscious after the accident.
M.A.C. Petition No: 511/10, 512/10, 515/10, 573/10 and 574/10 Page No. 9/28
17. The PW 4, Sh. Shyam Sunder, (petitioner in petition no. 515/10) stated that on 10.5.2010, at about 1.00 am he alongwith other passengers was coming from Mata Vaishno Devi to Amritsar in bus bearing no. UP-17C-7066 and when the said bus reached bypass chowk, barier, Gurdaspur, a tempo truck bearing no. MH-16Q-8215 came from opposite side at a very high speed, rashly and negligently and hit the conductor side of the bus due to which the said bus overturned and three passengers died and other passengers including him were grievously injured. The PW 4 stated that he suffered fracture of ribs, left hand, left shoulder besides serious head injuries. The PW 4 exhibited his Election I-Card as Ext. PW 4/1 and treatment record including bills as Ext. PW 4/2. During cross- examination the PW 4 stated that he was sitting in the cabin of the bus and there were 45 passengers in the bus and there was head on collision between the truck and the bus. The PW 4 stated that the street lights were on and there was no divider on the road. The PW 4 stated that he was not sleeping at the time of accident. The PW 4 stated that the speed of the bus was around 80 km per hour and there was no negligence on the part of the driver of the bus and the whole negligence was on the part of the truck driver who was driving at 100 km per hour.
18. I have gone through the material on record. An FIR is registered against respondent no. 1/ driver of tempo truck no. MH-16Q-8215 and charge sheet has been filed against him. The PW 3 stated that to some extent bus driver was also negligent but also stated that he was asleep when accident had taken place and became unconscious after the accident. The testimony of PW 3 on this aspect is not reliable. The PW 4 clearly stated that he was awake when accident had taken place. The PW 4 stated that there was no fault on the part of bus driver. The FIR, site plan, Charge sheet, PM reports and testimony of PWs taken together fully establish that the death of Smt. Gayatri Devi, Sh. Ranvir and Sh. Rajinder Prasad occurred due to injuries sustained by them in the accident involving the vehicle bearing registration No. MH-16Q-8215, in a road accident There is nothing on record to dispel the inference that Smt. Gayatri Devi, Sh. Ranvir and Sh. Rajinder Prasad died in the accident due to the injuries sustained M.A.C. Petition No: 511/10, 512/10, 515/10, 573/10 and 574/10 Page No. 10/28 by them in a road accident which occurred on 10.05.2010 because of negligence of driver of the vehicle no. MH-16Q-8215. Sh. Khayali Ram and Sh. Shyam Sunder suffered injuries because of negligent driving of respondent no.
1. There is no evidence in rebuttal. Issues no. 1 are accordingly decided in favour of petitioner and against the respondents.
ISSUE NO. 2 in petition no. 511/10 (Omwati Vs Rajesh & Others. )
19. The petitioner no. 1, Smt. Omwati examined herself as PW 2 and stated that her husband was a shop keeper and was earning Rs. 40,000/- per month. The PW 2 stated that her husband was 59 years of age at the time of accident. The PW 2 exhibited the Voter I-Card as Ext. P-1, Voter I-Cards of Brijesh, Shailesh and Sangeeta as Ext. P-2, P-3 and P-4 respectively and criminal case record as Ext. PW 2/1. During cross-examination the PW 2 stated that she had no documentary proof with regard to the occupation of Rajender Prashad as shopkeeper or having earning Rs. 40,000/- per month. The PW 3 stated that all her daughters namely Mamta, Rashmi and Sangeeta were married and living in their matrimonial homes and her two sons namely Shailesh and Brijesh were also married and were living with her. The PW 2 stated that her both sons were doing business and earning livelihood out of that.
20. I have gone through the material on record. The PW 2 stated that the deceased was a shopkeeper and was earning Rs. 40,000/- per month. There is no material on record with regard to the earning and avocation of the deceased. Therefore, in the absence of any reliable material on record, the minimum wages of unskilled workman at the time of accident can be taken into consideration. The petitioner has not placed on record any document with regard to the age of the deceased. Therefore, under the facts and circumstances, the age of the deceased is taken as 60 years (as mentioned in PM report). The minimum wages of unskilled workman as on the date of accident were Rs. 5,278/-. Therefore, the monthly income of the deceased is taken to be Rs. 5,278/-.
M.A.C. Petition No: 511/10, 512/10, 515/10, 573/10 and 574/10 Page No. 11/28
21. In the judgment of "Rajesh & Others Vs Rajbir Singh & Others" 2013 (6) Scale in C.A. No. 3860/2013 (Arising out of SLPC) No. 24825/2010) Hon'ble Supreme Court observed 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 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 30% always; it will also have a reference to the age. In other words, in the case of self-employed or persons with fixed wages, in case, the deceased victim was 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 deceased was in the age group of 40 to 50 years".
"12 In Sarla Verma's case (supra), it has been stated that in the case of those above 50 years, there shall be no addition. Having regard to the fact that in the case of those self- employed or on fixed wages, where there is normally no age of superannuation, we are of the view that it will only be just and equitable to provide an addition of 15% in the case where the victim is between the age group of 50 to 60 years so as to make the compensation just, equitable, fair and reasonable. There shall normally be no addition thereafter."
"20 .......Unlike the compensation awarded in other 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."
"21 .........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 M.A.C. Petition No: 511/10, 512/10, 515/10, 573/10 and 574/10 Page No. 12/28 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/-."
22. In the present case as noted above, the monthly salary of the deceased at the time of death is taken to be Rs. 5,278/- per month. Adding 15% of the amount, the monthly income comes to Rs. 6,070/- (5278 + 791). The annual income of the deceased would be Rs. 72,840/- (6,070 x 12).
23. The petitioner 1 is the wife and petitioner no. 2, 3, 4, 5 and 6 are the major children of the deceased. The petitioner no. 2 to 6 failed to establish that they have no source of income, hence they cannot be taken as dependent upon the deceased. Interest of justice, in the present case would be met if 1/3rd (as there is only one dependent on the income of the deceased) i.e. Rs. 24,280/- is deducted towards personal and living expenses of the deceased. After such deduction the contribution to the family (dependant) is determined as Rs. 48,560/- (72,840 - 24,280). The PM report shows the age of the deceased as 60 years at the time of accident. The multiplier applicable would be 9. Therefore, the total loss on dependency would be Rs. 48,560/- x 9 = Rs. 4,37,040/- .
24. The claimants are entitled to a sum of Rs. 1,00,000/- towards the head of love and affection, Rs. 10,000/- towards loss of estate and Rs. 25,000/- towards funeral expenses. The petitioner no. 1, being the wife of the deceased is also entitled to Rs. 1,00,000/- towards loss of consortium. Thus, the compensation will be Rs. 6,72,040/- .
25. Therefore, in my opinion the petitioner is entitled to Rs. 6,72,040/- which shall be the just compensation to petitioner.
M.A.C. Petition No: 511/10, 512/10, 515/10, 573/10 and 574/10 Page No. 13/28 ISSUES NO. 2 in petition no. 512/10 ( Kamlesh Devi Vs Rajesh & Others. )
26. The petitioner no. 1 deposed that deceased was 35 years of age and was working as a Halwai (sweetmeat maker) and was earning Rs. 9,000/- per month. The PW 1 stated that deceased Sh. Ranveer had left behind herself (wife) and two sons, a daughter and his parents who were residing in native village separately and caring for the other family members. The PW 1 exhibited the ration card as Ext. PW 1/1, death certificate of Ranveer Singh as Ext. PW 1/2, Election I-Card of Ranvir Singh as Ext. PW 1/3, her Election I- Card as Ext. PW 1/4. During cross-examination the PW 1 stated that deceased left behind three children namely Varsha aged 17 years, Jai Prkash, aged 15 years and Robin aged 12 years. The PW 1 stated that she was working as a tailor and earning her livelihood and she had not remarried. The PW 1 stated that she had no documentary proof regarding occupation and avocation of the deceased.
27. I have gone through the material on record. The PW 2 stated that deceased was working as a Halwai (sweetmeat maker) and was earning Rs. 9,000/-. There is no material on record with regard to the earning and avocation of the deceased. Therefore, in the absence of any reliable material on record, the minimum wages of unskilled workman at the time of accident can be taken into consideration. The deceased was 35 years of age at the time of accident as per the ration card Ext. PW 1/1. The minimum wages of unskilled workman as on the date of accident were Rs. 5,278/-. Therefore, the monthly income of the deceased is taken to be Rs. 5,278/-.
28. As per the judgment, Rajbir & Others V/s Rajesh Singh & Others, 2013 (6) Scale in C.A. No. 3860/2013 (Arising out of SLPC) No. 24825/2010) of Hon'ble Supreme Court, the petitioners are entitled to 50% addition in the income of the deceased towards the future prospects.
M.A.C. Petition No: 511/10, 512/10, 515/10, 573/10 and 574/10 Page No. 14/28
29. In the present case as noted above, the monthly salary of the deceased at the time of death is taken to be Rs. 5,278/- per month. Adding 50% of the amount, the monthly income comes to Rs. 7,917/- (5278 + 2639). The annual income of the deceased would be Rs. 95,004/- /- (7,917 x 12).
30. The petitioner 1 is the wife and petitioner no. 2, 3 and 4 are the minor children of the deceased and petitioner no. 5 and 6 are the father and mother of the deceased. The petitioner no. 5 failed to establish that he has no source of income, therefore, the petitioner no. 5 cannot be taken as dependent on the earning of the deceased. The PW 1, wife of the deceased stated that she was doing tailoring work and earning her livelihood. It cannot be lost sight that after death of bread earner, the family need to do some work to sustain themselves. Hence, the wife of the deceased is also taken as dependant. Interest of justice, in the present case would be met if 1/4th (as there were five dependents on the income of the deceased) i.e. Rs. 23,751/- is deducted towards personal and living expenses of the deceased. After such deduction the contribution to the family (dependants) is determined as Rs. 71,253/- (95,004 - 23751). The Ration card, Ext. PW 1/1 shows that the deceased was 35 years of age at the time of accident. The multiplier applicable would be 16. Therefore, the total loss on dependency would be Rs. 71,253/- x 16 = Rs. 11,40,048/-.
31. The claimants are entitled to a sum of Rs. 1,00,000/- towards the head of love and affection, Rs. 10,000/- towards loss of estate and Rs. 25,000/- towards funeral expenses. The petitioner no. 1, being the wife of the deceased is also entitled to Rs. 1,00,000/- towards loss of consortium. Thus, the compensation will be Rs. 13,75,048/-.
32. Therefore, in my opinion the petitioners are entitled to Rs.
M.A.C. Petition No: 511/10, 512/10, 515/10, 573/10 and 574/10 Page No. 15/28 13,75,048/- which shall be the just compensation to petitioner.
ISSUES NO. 2 in petition no. 515/10 (Shyam Sunder Vs Rajesh & Others. )
33. The petitioner, Sh. Shyam Sunder, the PW 4 deposed that he sustained fracture of ribs, left hand, left shoulder besides serious head injuries and was taken to District Hospital, Gurdaspur, Punjab and thereafter shifted to Ishwari Devi Memorial Hospital, Agra where he remained admitted from 11.9.2010 to 13.5.2010 and during hospitalization an operation was done and a rod was inserted in his left hand. The PW 4 stated that he was working as a Halwai (sweetmeat maker) and was earning Rs. 10,000/- per month. The PW 4 stated that he spent Rs. 60,00/- on medical treatment, conveyance and special diet. The PW 4 exhibited Election I-Card as Ext. PW 4/1 and treatment record including bills as Ext. PW 4/2. During cross-examination the PW 4, stated that he did not have any documentary proof regarding his employment and earning.
34. I have gone through the material on record. The assessment form issued by Ishwari Devi Memorial Hospital, Agra shows that petitioner was admitted on 11.5.2010 and was discharged on 13.5.2010. Bills are for Rs. 26,641/-. However, the treatment record Ext. PW 4/2 shows that some medicines were prescribed but there is no treatment record to cast light on the nature of the injuries suffered by the petitioner. The petitioner failed to prove the nature of injuries suffered by him. Under the facts and circumstances, I consider the amount of Rs. 25,000/- to be just compensation on all allowable heads.
ISSUES NO. 2 in petition no. 573/10 (Khayali Ram Vs Rajesh & Others. )
35. The petitioner examined himself as PW 3 and stated that he was grievously injured and suffered fracture involving anterior ends of third, fourth, fifth ribs and posterior ends of seventh, eighth and ninth side of ribs on left side. The petitioner stated that he also suffered dislocation of right proximal M.A.C. Petition No: 511/10, 512/10, 515/10, 573/10 and 574/10 Page No. 16/28 humerus besides other injuries and he was removed to District Hospital Gurdaspur, Punjab and thereafter he remained under treatment of Doctor Sunil Saxena. The PW 3 stated that at the time of accident he was doing service and was earning Rs. 10,000/- per month. The PW 3 stated that he spent Rs. 80,000/- on medical treatment, Rs. 30,000/- on conveyance and Rs. 40,000/- on special diet. The PW 3 exhibited the Voter I-Card as Ext. P-1, his PAN card as Ext. P-2, Ration Card as Ext. PW 3/1, treatment record and bills as Ext. PW 3/2. During cross-examination the PW 3 stated that he did not have any document regarding his occupation and income.
36. I have gone through the material on record. The petitioner has not filed any document regarding his admission in District Hospital, Gurdaspur, Punjab. However, petitioner has filed a X-Ray report issued by Focus Imaging East, Delhi dated 12.5.2010 Ext. PW 3/1 which shows that the petitioner suffered fracture of anterior ends of third, fourth and fifth ribs and posterior of ends 7th, 8th and 9th ribs. It can be easily deduced that the petitioner must have remained out of work for about 1-2 months. The bills are for Rs. 24,649/-. The petitioner stated that he was doing service and was earning Rs. 10,000/- per month but there is no document on record with regard to the earning of the petitioner. Therefore, in the absence of any reliable material on record, the minimum wages can be taken into consideration. The minimum wages of unskilled workman were Rs 5,278/- as on the date of accident. Under the facts and circumstances, I consider the following amount to be just compensation :-
1 Compensation towards pain and sufferings Rs. 30,000/- 3 Compensation towards conveyance and Rs. 3,000/-
special diet (without bills) 4 Compensation towards medical bills Rs. 24,649/- 5 Compensation towards loss of earning Rs. 10,556/-
of 2 months @ minimum wages i.e. 5,278/-
Total Rs. 68,205/- M.A.C. Petition No: 511/10, 512/10, 515/10, 573/10 and 574/10 Page No. 17/28
Therefore, in my opinion the petitioner is entitled to Rs. 68,205/- which shall be the just compensation to petitioner.
ISSUES NO. 2 in petition no. 574/10 (Khayali Ram Chaturvedi Vs Rajesh & Others. )
37. The petitioner no.1, Sh. Khayali Ram Chaturvedi examined himself as PW 3 and stated that his wife Smt. Gayatri Chaturvedi died in the said accident and has left behind petitioner no.1 (husband) and petitioner no. 2 to 6 (sons). It is stated that deceased was housewife. The PW 3 exhibited the Voter I-Card as Ext. P-1, his PAN card as Ext. P-2, Voter I-Card of deceased as Ext. P-3, Ration Card as Ext. PW 3/1, treatment record and bills as Ext. PW 3/2. During cross-examination the PW 3 stated that he was having five sons and all were major. The PW 3 stated that his sons namely Triveni and Rajender Prashad were married and Sh. Deep Chand Kasturba and Laxmi Narayan were unmarried and Triveni and Rajender Prashad were doing jobs and were residing with him. The PW 3 stated that Sh. Deep chand was not doing any job and Kasturba and Laxmi Narayan were studying.
38. I have gone through the material on record. The petitioner, PW 3 has stated that deceased was a housewife. As per the judgment titled as "Royal Sundaram Alliance Insurance Company Ltd. V/s Master Manmeet Singh & Ors. MAC Appeal No. 590/2011, decided on 30.01.2012", of Hon'ble High Court, the minimum wages of non-matriculate workman at the time of accident can be taken into consideration. The minimum wages of non- matriculate workman at the time of accident was 5,850/-. The annual income comes to Rs. 70,200/- (5850 X 12). The deceased was less that 51 years of age at the time of accident (as per Election I- Card Ext. P-3). After multiplying the amount with multiplier of 13, the amount comes to Rs. 9,12,600/- (70,200 x 13).
M.A.C. Petition No: 511/10, 512/10, 515/10, 573/10 and 574/10 Page No. 18/28
39. As per the judgment of Rajbir & Others V/s Rajesh Singh & Others, 2013 (6) Scale in C.A. No. 3860/2013 (Arising out of SLPC) No. 24825/2010) of Hon'ble Supreme Court, the claimants are entitled to a sum of Rs. 1,00,000/- towards the head of love and affection, Rs. 25,000/- towards funeral expenses. The petitioner no. 1, being the husband of the deceased is also entitled to Rs. 1,00,000/- towards loss of consortium. Thus, the compensation will be Rs. 11,37,600/-.
40. Therefore, in my opinion the petitioners are entitled to Rs. 11,37,600/- which shall be the just compensation to petitioners.
LIABILITY
41. The Insurance company has examined Sh. Sunil Kumar Verma as R5W1. The R5W1 stated that a notice under Order 12 Rule 8 CPC was sent to the driver and owner for producing original RC, permit and fitness certificate in respect of vehicle no. MH-16Q-8215 by registered post AD and there was no response to the notice, from driver and owner regarding producing or submitting the original documents mentioned therein. The R5W1 stated that the aforesaid vehicle was insured in the name of Sh. Vijay for the period 05.1.2010 to 04.1.2011. The R5W1 stated that as the effective and valid permit of the vehicle and driving licence of the driver concerned, had not been made available by the driver and owner despite of giving notice under 12 Rule 8 CPC, the same amounted to violation of terms and conditions of policy. Therefore, no liability could be fastened on the Insurance company. The R5W1 exhibited the copy of notice as R5W1/A, postal receipts as R5W1/B and C and copy of the policy as R5W1/D.
42. I have gone through the material on record. The Hon'ble High Court in the judgment "New India Assurance Company Ltd. Vs. Sanjay Kumar and others, ILR 2007(II) Delhi 733 MAC" observed as under: -
" Where the assured chooses to run away from the M.A.C. Petition No: 511/10, 512/10, 515/10, 573/10 and 574/10 Page No. 19/28 battle i.e. fails to defend the allegation of having breached the terms of the insurance policy by opting not to defend the proceedings, a presumption could be drawn that he has done so because of the fact that he has no case to defend. It is trite that a party in possession of best evidence, if he withholds the same, an adverse inference can be drawn against him that had the evidence been produced, the same would have been against said person. As knowledge is personal to the person possessed of the knowledge, his absence at the trial would entitle the insurance company to a presumption against the owner".
That apart, what more can the insurance company do other than to serve a notice under order 12 Rule 8 of the Code of Civil Procedure calling upon the owner as well as the driver to produce a valid driving licence. If during trial such a notice is served and proved to be served, non response by the owner and the driver would fortify the case of the insurance company".
43. The Insurance company has proved the policy as Ext R5W1/D. A notice under Order 12 Rule 8 CPC was sent to the driver as well as owner of the vehicle no. MH-16Q-8215 but despite the said notice the owner and driver did not produce the driving licence and copy of the permit. The notice is sent by registered post at correct addresses. Therefore, there is presumption that notice is served upon the driver and owner of the aforesaid vehicle. The respondent no. 1 and 3 have failed to produce the copy of the driving licence and permit, therefore, it can be inferred that the driver and owner were not having the valid driving licence and permit, hence, no liability can be fastened on Insurance company. The respondent no. 1 has stated in written statement that he had sold the vehicle no. MH-16Q-8215 to Sh. Ishwar Chandrakant Dhoka. The respondent no. 1 did not lead any evidence. The registration certificate is in the name of respondent no. 1. Therefore, it is clear that as on the date of accident, respondent no. 1 was the registered owner of the vehicle. Further, the Insurance policy is also in the name of respondent no.1. The Insurance company having admitted the policy with initially satisfy the award and shall be entitled to recover the awarded amount from respondent no. 1 and 3.
M.A.C. Petition No: 511/10, 512/10, 515/10, 573/10 and 574/10 Page No. 20/28 RELIEF in M.A.C. Petition No. 511//10 (Omwati V/s Rajesh & Anr.)
44. The respondent no. 2/Insurance company having admitted the policy, is hereby directed to pay a compensation of Rs. 6,72,040/-, within one month. The accident occurred on 05.4.2010, therefore following judgment Smt. Bishekha Devi & Anr. Vs. Mohd. Afsar & Ors. MAC. APP. 1087/2012 passed by Hon'ble Delhi High Court, I direct that the respondent No. 2/Insurance company shall also pay interest @ 9% p.a. on the total compensation amount from the date of petition till realization to the petitioners. The respondent no. 2/Insurance company shall be entitled to recover the awarded amount from the respondent no. 1 and 3.
For the aforesaid reasons, I pass the following award :-
AWARD IN M.A.C. Petition No. 511/10
45. In view of the above the petition is allowed. The respondent no. 2/Insurance company having admitted the policy, is hereby directed to pay a compensation of Rs. 6,72,040/-, within one month. The respondent No. 2/Insurance company shall also pay the interest @ 9% p.a. on the total compensation amount from the date of petition till realization to the petitioners. The respondent no. 2/Insurance company shall be entitled to recover the awarded amount from the respondent no. 1 and 3. The claimants are entitled to the compensation in the following proportions along with corresponding interest :-
46. Upon the aforesaid amount being deposited, the UCO Bank is directed to keep the amount awarded to petitioners in fixed deposit in the following manner:-
(a) Petitioner No. 1 shall get Rs. 4,03,224/- (60%) along with corresponding interest.
M.A.C. Petition No: 511/10, 512/10, 515/10, 573/10 and 574/10 Page No. 21/28
(b) Petitioner No. 2 to 6 shall get Rs. 53,763/-(8% each) along with corresponding interest.
Petitioner no. 1 i. Fixed deposit of Rs. 50,000/- each for a period of two years, four years, six years, eight years respectively and rest of the amount shall be released to the petitioner no. 1 with immediate effect by transferring the same to her saving bank account.
Petitioner no. 2 to 6 :-
i. The amount awarded to the petitioners no. 2 to 6 shall be released.
RELIEF in M.A.C. Petition No. 512/10 (Kamlesh Devi Vs Surinder Singh & Anr.)
47. The respondent no. 2 having admitted the policy, is hereby directed to pay a compensation of Rs. 13,75,048/-, within one month. The accident occurred on 30.12.2009, therefore following judgment Smt. Bishekha Devi & Anr. Vs. Mohd. Afsar & Ors. MAC. APP. 1087/2012 passed by Hon'ble Delhi High Court, I direct that the respondent No. 2/Insurance company shall also pay interest @ 9% p.a. on the total compensation amount from the date of petition till realization to the petitioners. The respondent no. 2/Insurance company shall be entitled to recover the awarded amount from the respondent no. 1 and 3.
For the aforesaid reasons, I pass the following award :-
AWARD IN M.A.C. Petition No. 512/10
48. In view of the above the petition is allowed. The respondent no. 2/Insurance company having admitted the policy, is hereby directed to pay a compensation of Rs. 13,75,048/-, within one month. The respondent No. M.A.C. Petition No: 511/10, 512/10, 515/10, 573/10 and 574/10 Page No. 22/28 2/Insurance company shall also pay the interest @ 9% p.a. on the total compensation amount from the date of petition till realization to the petitioners. The respondent no. 2/Insurance company shall be entitled to recover the awarded amount from the respondent no. 1 and 3.
49. Upon the aforesaid amount being deposited, the UCO Bank is directed to keep the amount awarded to petitioners in fixed deposit in the following manner:-
(a)Petitioner No. 1 shall get Rs. 4,12,514/- (30%) along with corresponding interest.
(b)Petitioner No. 2 to 4 & 6 shall get Rs. 2,06,257/-(15% each) along with corresponding interest.
(b)Petitioner No. 5 shall get Rs. 1,37,505/-(10%) along with corresponding interest.
Petitioner no. 1 ii. Fixed deposit of Rs. 50,000/- each for a period of two years, years, four years, six years and eight years respectively and rest of the amount shall be released to the petitioner no. 1 with immediate effect by transferring the same to her saving bank account.
Petitioner no. 2 to 4 i. The share of minor petitioners no. 2 to 4 shall be kept in FDR till their attaining age of majority.
Petitioner no. 5 & 6 :-
ii. The amount awarded to the petitioners no. 5 & 6 shall be shall be released.
RELIEF in M.A.C. Petition No. 515/10 (Shyam Sunder Vs Rajesh & Ors.)
50. The respondent no. 2 having admitted the policy, is hereby directed to pay a compensation of Rs. 25,000/-, within one month. The accident occurred on 30.12.2009, therefore following judgment Smt. Bishekha M.A.C. Petition No: 511/10, 512/10, 515/10, 573/10 and 574/10 Page No. 23/28 Devi & Anr. Vs. Mohd. Afsar & Ors. MAC. APP. 1087/2012 passed by Hon'ble Delhi High Court, I direct that the respondent No. 2/Insurance company shall also pay interest @ 9% p.a. on the total compensation amount from the date of petition till realization to the petitioners. The respondent no. 2/Insurance company shall be entitled to recover the awarded amount from the respondent no. 1 and 3.
For the aforesaid reasons, I pass the following award :-
AWARD IN M.A.C. Petition No. 515/10
51. In view of the above the petition is allowed. The respondent no. 2/Insurance company having admitted the policy, is hereby directed to pay a compensation of Rs. 25,000/-, within one month. The respondent No. 2/Insurance company shall also pay the interest @ 9% p.a. on the total compensation amount from the date of petition till realization to the petitioners. The respondent no. 2/Insurance company shall be entitled to recover the awarded amount from the respondent no. 1 and 3.
52. The amount awarded to the petitioner shall be released to him.
RELIEF in M.A.C. Petition No. 573/10 (Khayali Ram Chaturvedi Vs Rajesh & Ors.)
53. The respondent no. 2 having admitted the policy, is hereby directed to pay a compensation of Rs. 68,205/-, within one month. The accident occurred on 30.12.2009, therefore following judgment Smt. Bishekha Devi & Anr. Vs. Mohd. Afsar & Ors. MAC. APP. 1087/2012 passed by Hon'ble Delhi High Court, I direct that the respondent No. 2/Insurance company shall also pay interest @ 9% p.a. on the total compensation amount from the date of petition till realization to the petitioners. The respondent no. 2/Insurance company shall be entitled to recover the awarded amount from the respondent no. 1 and 3.
M.A.C. Petition No: 511/10, 512/10, 515/10, 573/10 and 574/10 Page No. 24/28 For the aforesaid reasons, I pass the following award :-
AWARD IN M.A.C. Petition No. 573/10
54. In view of the above the petition is allowed. The respondent no. 2/Insurance company having admitted the policy, is hereby directed to pay a compensation of Rs. Rs. 68,205/-, within one month. The respondent No. 2/Insurance company shall also pay the interest @ 9% p.a. on the total compensation amount from the date of petition till realization to the petitioners. The respondent no. 2/Insurance company shall be entitled to recover the awarded amount from the respondent no. 1 and 3.
55. The amount awarded to the petitioner shall be released to him.
RELIEF in M.A.C. Petition No. 574/10 (Khayali Ram Chaturvedi Vs Rajesh & Ors.)
56. The respondent no. 2 having admitted the policy, is hereby directed to pay a compensation of Rs. 11,37,600/-, within one month. The accident occurred on 30.12.2009, therefore following judgment Smt. Bishekha Devi & Anr. Vs. Mohd. Afsar & Ors. MAC. APP. 1087/2012 passed by Hon'ble Delhi High Court, I direct that the respondent No. 2/Insurance company shall also pay interest @ 9% p.a. on the total compensation amount from the date of petition till realization to the petitioners. The respondent no. 2/Insurance company shall be entitled to recover the awarded amount from the respondent no. 1 and 3.
For the aforesaid reasons, I pass the following award :-
AWARD IN M.A.C. Petition No. 574/10
57. In view of the above the petition is allowed. The respondent no.
M.A.C. Petition No: 511/10, 512/10, 515/10, 573/10 and 574/10 Page No. 25/28 2/Insurance company having admitted the policy, is hereby directed to pay a compensation of Rs. 11,37,600/-, within one month. The respondent No. 2/Insurance company shall also pay the interest @ 9% p.a. on the total compensation amount from the date of petition till realization to the petitioners. The respondent no. 2/Insurance company shall be entitled to recover the awarded amount from the respondent no. 1 and 3.
58. Upon the aforesaid amount being deposited, the UCO Bank is directed to keep the amount awarded to petitioners in fixed deposit in the following manner:-
(a)Petitioner No. 1 shall get Rs. 5,68,800/- (50%) along with corresponding interest.
(b)Petitioner No. 2 to 6 shall get Rs. 1,13,760/- (10% each) along with corresponding interest.
Petitioner no. 1 iii. Fixed deposit of Rs. 50,000/- each for a period of two years, years, four years, six years and eight years respectively and rest of the amount shall be released to the petitioner no. 1 with immediate effect by transferring the same to her saving bank account.
Petitioner no. 2 to 6 i. The share of petitioners no. 2 to 6 shall be released.
59. In petition no. 511/10, 512/10 & 574/10, the award amount along with interest be deposited by respondents with UCO Bank, Nodal Officer through Nodal Officer, Karkardooma Branch, within 30 days in the petitioners' accounts.
60. The interest on the aforesaid FDR shall be paid monthly by automatic credit of interest in the savings account of petitioners.
61. Withdrawal from the aforesaid account shall be permitted to the M.A.C. Petition No: 511/10, 512/10, 515/10, 573/10 and 574/10 Page No. 26/28 petitioner after due verification and the bank shall issue photo identity card of petitioner to facilitate identity.
62. No cheque book be issued to the petitioners without the permission of the court.
63. The original fixed deposit receipts shall be retained by the bank in the safe custody. However, the original pass book shall be given to the appellant along with photocopy of the FDRs.
64. The original fixed deposit receipts shall be handed over to the petitioner on the expiry of the period of the FDRs.
65. No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the permission of the court.
66. Half yearly statement of account be filed by the bank in the court.
67. On the request of the petitioner, the bank shall transfer the saving account to any other branch of UCO bank according to the convenience of the petitioners.
68. The petitioners shall furnish all the relevant documents for opening of the saving bank account and fixed deposit account to Nodal Officer, UCO Bank, Karkardooma Court, Delhi.
69. The compensation amount shall be deposited by respondents within 30 days, in the court.
70. The insurance company is directed to give notice regarding the deposit of the amount to the petitioners at the address mentioned in the memo of parties and will also send copy of notice to the counsel for petitioners at the address mentioned in the vakalatnama.
M.A.C. Petition No: 511/10, 512/10, 515/10, 573/10 and 574/10 Page No. 27/28
71. List for reporting compliance on 10.02.2014. The insurance company is directed to place on record the proof of deposit of the award amount, notice of the deposit and calculation of interest on the next date of hearing.
72. The insurance company shall deposit the award amount with interest up to the date of notice of deposit to the claimants with copy to their counsel. A copy of this order be given dasti to concerned parties.
Announced in the (Arvind Kumar)
open court on 10.12.2013 Presiding Officer: MACT
Karkardooma Court
Delhi
M.A.C. Petition No: 511/10, 512/10, 515/10, 573/10 and 574/10 Page No. 28/28