Delhi District Court
Vijay Goyal vs . Shankar & Ors. on 8 January, 2007
1 Suit No. 32/06
(Old Suit No. 426/03)
Vijay Goyal Vs. Shankar & Ors.
IN THE COURT OF SH. MAHESH CHANDER GUPTA : JUDGE :
MOTOR ACCIDENT CLAIMS TRIBUNAL: DELHI
Suit No. 32/06
1. SH. VIJAY GOYAL
S/o Late Sh. Jagdish Parshad
(Now deceased through his legal heirs)
i). KM. KRITI GOYAL
D/o Late Sh. Vijay Goyal
ii). MASTER ANKIT GOYAL
S/o Late Sh. Vijay Goyal
iii). SMT. BIMLA DEVI
W/o Late Sh. Jagdish Parshad
2. KM. KRITI GOYAL
D/o Late Sh. Vijay Goyal
3. MASTER ANKIT GOYAL
S/o Late Sh. Vijay Goyal
(Petitioners Km. Kriti Goyal and Master Ankit Goyal
through their Grand mother Smt. Bimla Devi as a
Guardian and next friend being minor).
All R/o -8268, New Anaj Mandi,
Bara Hindu Rao, Delhi-110 006.
...........Petitioners
VERSUS
1. SH. SHANKAR
S/o Sh. Chinnappa
R/o Karasavadi Garibi Street,
Mandya City, P.S. Maddur,
Distt. Mandya, Banglore,
KARNATAKA.
Contd.....
2 Suit No. 32/06
2. SH. M.MAHADEVU
S/o Sh. Mahadevu
R/o 2nd Cross, No. 254,
Kavempu Nagar, Mandya,
Banglore, KARNATAKA.
3. UNITED INDIA INSURANCE CO. LTD.,
Branch Office, Code No. 072001
No. 1119/B.M.C. Road, Mandya,
Banglore, KARNATAKA.
..................Respondents
Date of Institution: 08.08.2003 Date of Order: 08.01.2007 A W A R D:-
1. The Petitioners who are the legal heirs of the deceased Smt. Illa Goyal have filed this claim petition for award of compensation Under Section 166 Motor Vehicles Act, 1988.
2. Initially the claim petition was filed by Sh. Vijay Goyal, husband and Km.
Kriti Goyal and Master Ankit Goyal, children of deceased Smt. Illa Goyal expired on 16.05.2005, his mother Smt. Bimla Devi as a legal heirs was also substituted.
3. Briefly stated the relevant facts of the case are that deceased Smt. Illa Goyal suffered fatal injuries in a road accident on 23.05.2003 at about 8.45 Contd.....
3 Suit No. 32/06A.M. at Gejjalagere KMF Centre, M.C. Road, Naddur, Mandya, Banglore when she alongwith Akanksha, Mini Nisha, Kriti Goyal and Ankit were travelling in TATA SUMO No. KA-03-MB-3855 driven by its driver Sh. Anathramu were coming from Banglore for going to Mysore then one Maxi Cab no. KA-07-3236 being driven rashly and negligently came at fast speed from opposite direction and while overtaking the Govt. Bus in a rash and negligent manner hit against Tata Sumo no. KA-03-MB-3855 and as a result of this forceful impact Smt. Illa Goyal and Akansha Goyal received fatal injuries and other occupants including its driver received serious grievous injuries.
It is further pleaded that the offending vehicle Maxi Cab no. KA-07-3236 was being driven in a rash and negligent manner at a very high speed of which Resp. No.1 Shankar (R-1) was the driver and was owned by Resp. No. 2 M.Mahadevu (R-2) and was insured with Resp. No. 3 United India Insurance Co. Ltd., (R-3). A criminal case vide FIR No. 57/03, U/s 279/337/304A IPC was registered at PS Madur, Distt. Mandya, Bangalore. It is further pleaded that the deceased was 37 years of age and was working as a tutor and typist and was earning Rs. 7,000/- p.m. at the time of the accident. Petitioners have claimed a compensation of Rs.15,00,000/- on account of the death of the deceased in the said accident on the grounds stated in the petition.
Contd.....
4 Suit No. 32/06
4. Notice of the petition was issued to all the respondents. R-1 appeared in the Court but did not file written statement and later on absented from the proceedings. R-2 despite service did not appear in the Court. Accordingly both R-1 & R-2 were proceeded ex-parte by the Ld. Predecessor.
5. R-3 filed a detailed written statement and contested the claim of the petitioners and admitted that the vehicle in question bearing no. KA-07-3236 was insured with it vide Policy/Cover Note no. 072601/31/02/01817 valid from 28.09.2002 to 27.09.2003 in the name of Sh. M. Mahadevu, but denied its liability to pay any compensation until it was proved that the driver of the vehicle in question was holding a valid and effective driving licence at the time of the accident and was not otherwise disqualified by the concerned authority to hold the licence. R-3 also controverted the other allegations of the petitioners.
6. On the pleadings of the parties following issues were framed:
ISSUES:
I). Whether Smt. Illa Goel died of the fatal injuries caused in a road accident which took place on 23rd March, 2003 at about 8.45 a.m. At Gajjalagere KMF Centre, MC Road, Naddur, Madya Contd.....5 Suit No. 32/06
Bangalore due to rash and negligent driving of Maxi Cab no. KA- 07-3236 being driven by Resp. no.1 Shanker?
II).Whether petitioner is entitled to any compensation, if so, from whom and to what amount?
III).Relief.
7. In support of its case petitioners have produced and examined two witnesses namely PW 1 Kriti Goyal, D/o Late Sh. Vijay Goyal, PW-2 Smt. Bimla Devi W/o Late Sh. Jagdish Parsad.
PW 1 Kriti Goyal, who is one of the petitioners, who deposed on the lines of the averments made in the petition and is the alleged eye-witness to the accident.
PW 2 Smt. Bimla Devi, who is also one of the petitioners, who deposed on the lines of the averments made in the petition and also proved her affidavit of evidence Ex.P-2 and tendered the copies of the income tax returns of the deceased Smt. Illa Goyal collectively Ex.PW-2/1 to Ex.PW-2/3, certified copies of FIR Ex.PW-2/4, chargesheet Ex.PW-2/5, postmortem report Ex.PW-2/6, certificate of the ownership of the offending vehicle Ex.PW-2/7, copy of the ration card Ex. PW-2/8, photocopy of the election card of Late Sh. Vinod Goyal Ex.PW-2/9, photocopy of the house tax Ex.PW-2/10, photocopy of the Contd.....
6 Suit No. 32/06insurance policy of the offending vehicle Ex.PW-2/11, photocopy of the PAN Card (Permanent Account Number) of the deceased Smt. Illa Goyal Ex.PW-2/12, photocopy of the election card of the deceased Smt. Illa Goyal Ex.PW-2/13, photocopy of the graduation certificate of the deceased Smt. Illa Goyal Ex.PW- 2/14. During her cross-examination she also produced the photocopies of her ration card and election card Ex.PW-2/X1 & Ex.PW-2/X2 respectively.
8. No evidence was led by R-3 despite grant of opportunity.
9. I have heard the Ld. Counsel for the parties and have also carefully perused the entire record and relevant provisions of the law.
My findings issue wise are as under:-
ISSUE NO. 1:-
On careful perusal and analysis of the entire evidence on record I find that the petitioners have proved that due to rash and negligent driving of Maxi Cab No. KA-07-3236 which struck against Tata Sumo no. KA-03-MB-3855 in which deceased Smt. Illa Goyal alongwith other members was travelling and had caused her (Smt. Illa Goyal) death.
Contd.....7 Suit No. 32/06
The testimony of PW-1 Kriti Goyal clearly shows that the accident was caused by the rash and negligent driving of the Maxi Cab No. KA-07-3236 due to which deceased Smt. Illa Goyal suffered fatal injuries.
PW-1 Kriti Goyal in her examination-in-chief has deposed that "The accident has occurred on 23.03.2003 at about 8.45 A.M. We were going from Bangalore to Mysore in Tata Sumo. We reached M.C. Road, KMF Centre, Maddur, Mandya. A mini bus having registration no. KA-07-3236 came from opposite side in rash and negligent manner at a fast speed and hit against TATA Sumo No. KA-03-MB-3856 and with the result of forceful impact, my mother Illa Goyal and my cousin sister Akansha received fatal injuries. Injureds were taken to the hospital. My mother expired on the spot while my cousin sister died in the hospital. My statement was recorded by the police in the hospital. Accident was caused due to fault of the driver of mini bus."
There is nothing in her cross-examination so as to impeach her creditworthiness. Inspite of incisive cross-examination nothing material has been brought out on the record to discredit the testimony of the said witness. Her testimony is based on actual observations than otherwise. Her testimony is unblemished, convincing and trustworthy. There is nothing in her statement to suggest that she had any animus against the said vehicle or its driver to falsely implicate them in the case.
Her testimony further finds corroboration from the criminal case record FIR Ex.PW-2/4, chargesheet Ex.PW-2/5 and postmortem report Ex.PW-2/6. The perusal of the FIR Ex.PW-2/4 shows that it has been recorded on the statement Contd.....8 Suit No. 32/06
of an eye-witness Sh. S. Anathramu in which the number of the offending vehicle has been specifically mentioned. The chargesheet Ex.PW-2/5 shows that accused Shankar (R-1) has been challaned by the police U/s 279/337/304A IPC and has been sent up for trial, besides detailing the investigation carried out by the police.
The careful perusal and analysis of the cross-examination of PW-1 Kriti Goyel indicates that the factum of the accident has not been disputed by R-3.
The documents of the police prepared during investigation are admissible in evidence without formal proof and these documents are evidence of rash and negligent driving. It was held to be so in a judgment reported in 2004 ACJ 1498.
In "Girdhari Lal Vs. Radhey Shyam & Ors". Vol. II PLR Page 109 it was held that when a driver is being tried on account of rash and negligent driving and there is no denial that the driver was being tried on account of rash and negligent driving, it is prima facie safe to conclude that the accident occurred on account of rash and negligent driving of the driver.
In "Basent Kaur and others V. Chatarpal Singh & Ors." 2003 ACJ 369 it was held that when a criminal case U/s 304-A IPC has been registered againt the driver of the offending vehicle by the police, this fact was relevant U/s 158 (6) of the Motor Vehicles Act and these facts were enough to record the findings that Contd.....9 Suit No. 32/06
the offending vehicle was responsible for committing the accident.
The fact that the deceased Smt. Illa Goyal suffered fatal injuries has been proved by postmortem report Ex.PW-2/6. The postmortem report Ex.PW-2/6 inter-alia reads that death is due to cardio- respriatory failure as a result of injury sustained to vital organs.
In view of above and in the circumstances, it stands established that Smt. Illa Goyal suffered fatal injuries due to the rash and negligent driving of the offending vehicle, Maxi Cab no. KA-07-3236 by R-1/ Shankar.
Accordingly, issue no. 1 is decided in favour of the petitioners and against the respondents.
ISSUE NO.2 :-
PW 2 Smt. Bimla Devi in her affidavit of examination-in-chief Ex.P-2 has deposed that deceased Smt. Illa Goyal was working as tutor and typist and was earning about Rs. 7,000/- p.m and she was income tax assessee and proved her income tax returns for the Assessment Year 2000-2001 for Rs. 62,756/- Ex.PW- 2/1; for the Assessment Year 2001-2002 for Rs. 82,758/- Ex.PW-2/2 and for the Assessment Year 2002-2003 for Rs. 85,248/- Ex.PW-2/3 and also proved the permanent account no. (PAN Card) Ex.PW-2/12 and the graduation certificate Contd.....10 Suit No. 32/06
Ex.PW-2/14 of the deceased Smt. Illa Goyal.
In the absence of any evidence to the contrary on the record, I take that deceased Smt. Illa Goyal was earning Rs. 7,000/- per month and accordingly I take the income of the deceased Smt. Illa Goyal as Rs. 7,000/- per month and Rs. 84,000/- per annum (Rs. 7,000/- X 12) at the time of the accident.
The Hon'ble Supreme Court in case titled as Sarla Dixit Versus Balwant Yadav & Others, 1996 III AD SC 13 has held that future prospects and income of the deceased should be taken into consideration to augment the multiplier. This can be done by taking the mean of the two incomes i.e. the income on the date of the death of the deceased and his assumed increased income with the passage of time, of which he survived in the accident.
The Hon'ble Supreme Court in case titled as Bijoy Kumar Dugar Vs. Bidyadhar Dutta & Others, 2006 (1) TAC 969 (S.C.) has held the necessity of evidence on record to show the future prospects of deceased for the purpose of quantum of compensation.
Following the said judgments of the Hon'ble Supreme Court and keeping in view the inflationary trends and rise in prices, I assume that income of the deceased would have become Rs. 90,000/- per annum with the passage of time had she survived the accident. Thus the average income of the deceased after Contd.....11 Suit No. 32/06
taking the mean of her two incomes comes to Rs.87,000/- per annum {(Rs. 84,000 + Rs. 90,000/-)/ 2 = Rs. 87,000/-}.
One third (i.e. Rs. 29,000/-) of the said income is to be deducted for the personal expenses of the deceased. Thus the total yearly loss of dependency to the petitioners comes to Rs. 58,000/- per annum (Rs. 87,000/- - Rs. 29,000 = Rs. 58,000/-).
Next question arises as to what should be the multiplier applicable to the present case. PW-2 Smt. Bimla Devi in her affidavit of examination-in-chief Ex.P-2 has deposed that Smt. Illa Goyal was aged about 37 years at the time of accident and her date of birth was 01.12.1967.
The perusal of the income tax returns Ex.PW-2/1 to Ex.PW-2/3 inter-alia mentions the date of birth of deceased Smt. Illa Goyal as 01.012.1967. In the absence of any evidence to the contrary on the record to the said date of birth 01.12.1967 of the deceased shown in the income tax returns Ex.PW-2/1 to Ex.PW-2/3. I take the date of the birth of deceased as 01.12.1967. As the date of the accident is 23.03.2003 and by taking the date of birth of the deceased Smt. Illa Goyal as 01.02.1967, on simple arithmetical calculation the age of the deceased comes to 35 year 3 months and 22 days. In the circumstances accordingly, I take that deceased Smt. Illa Goyal was more than 35 years of age at the time of accident.
Contd.....
12 Suit No. 32/06Taking guidance from the Second Schedule to the Motor Vehicles Act, 1988, the proper and appropriate multiplier applicable to the present case is '16'. Thus the total loss of the dependency to the petitioners comes to Rs. 9,28,000/- (Rs. 58,000/- X 16).
The claim of the petitioners with regard to engaging of maid servant and aaya has not been proved by producing the said maid servant and aaya in the witness box or by any other documentary evidence. Hence the said claim of the petitioners is hereby rejected.
A sum of Rs. 30,000/- is awarded to the petitioners towards loss of love and affection.
A sum of Rs. 20,000/- is awarded to the petitioners on account of the loss of expectancy of the life of the deceased.
Further a sum of Rs. 10,000/- is awarded to the petitioners towards funeral expenses. Thus the petitioners are entitled to a total compensation of Rs. 9,88,000/- on account of the death of the deceased resulting from the said accident.
Contd.....
13 Suit No. 32/06Next question arises as to from whom the petitioners are entitled to receive the said awarded compensation. R-1 being the driver, R-2 being the owner and R-3 being the insurer of the said offending vehicle are jointly an vicariously liable to pay the said awarded amount of compensation to the petitioners.
Accordingly, issue no. 2 is decided in favour of the petitioners and against the respondents.
Relief:-
In view of the findings on the above issues, the petitioners are entitled to a total compensation of Rs. 9,88,000/- on account of the death of the deceased Smt. Illa Goyal in the said accident, which R-1 being the driver and R-2 being the owner of the offending vehicle are liable to pay jointly and severally. As the offending vehicle was insured with R-3, this respondent is vicariously liable to indemnify the petitioners. The petitioners are also entitled to be compensated for the delay in getting the compensation. Accordingly I allow an interest @ 7.5% p.a as per the rate of interest allowed by Hon'ble Supreme Court in a case reported as "Tamil Nadu State Transport Corporation Ltd. Vs. S Rajapriya & Others: 2005 (2) T.A.C., 205 (SC)". As such R-3 is directed to make the payment of the awarded compensation of Rs. 8,26,000/- with interest @ 7.5% p.a from the date of filing of the amended petition i.e. 08.08.2003 within 30 days Contd.....14 Suit No. 32/06
from today failing which Petitioner would be entitled to further interest at this rate till the date of payment.
Out of the awarded compensation a sum of Rs. 1,88,000/- with proportionate interest shall be paid to Petitioner No. 1 Smt. Bimla Devi. A sum of Rs. 4,00,000/- each with proportionate interest shall be paid to Petitioner no.2 Kumari Kriti Goyal and Petitioner no. 3 Master Ankit Goyal. The entire share of Petitioner no. 2 Km. Kriti and Petitioner no. 3 Master Ankit Goyal shall remain invested in FDRs in their names in any nationalised bank till they attain the age of majority.
The FDRs shall carry no facility of loan or advance, but with liberty to withdraw the interest monthly or quarterly. However, the Petitioner no. 2 Km. Kriti Goyal and Master Ankit Goyal may approach this Court for premature withdrawal of any amount in case of an emergent need. Announced in the open Court This on the 08th Day of January, 2007 (Two spare copies attached).
(MAHESH CHANDER GUPTA) ADJ, M.A.C.T. TIS HAZARI COURTS DELHI.
Contd.....