Delhi District Court
Prabha Wati Widow Of Late Kamla Prasad vs Harnarayan S/O Kanhaiya Lal on 20 April, 2007
1
IN THE COURT OF V.K. MAHESHWARI:
PRESIDING OFFICER
MOTOR ACCIDENT CLAIM TRIBUNAL,
PATIALA HOUSE COURTS: NEW DELHI
Suit no.481/00
Date of institution:20.12.00.
1.Prabha Wati Widow of Late Kamla Prasad.
2.Neelam D/O Late Kamla Prasad.
3.Surindere S/O Late Kamla Prasad.
4.Chunni Lal S/O Late Bhawani Prasad
Petitioner No.2 and 3 being minor through their
mother, next friend and natural guardian .
All residents of :
B-29,Kusum Pur Pahari, Vasant Kunj,New Delhi
Permanent residents of Village Sehmuhi deeh,
Post Office Ram Pur,Tehsil Marhiyahoo, District
Jone Pur, U.P.
..........PETITIONER
VERSUS
1.Harnarayan S/O Kanhaiya Lal.
R/o Village and Police Station Bagh Dola,P.S
Dwarka,
Delhi
2.Braham Prakash S/O Kanhaiya Lal.
R/o Village and Police Station Bagh Dola,P.S
Dwarka,
Delhi.
.........RESPONDENTS
Compensation Claimed-Rs.15,00,000/-
II.Suit no.483/2000.
Date of Institution:20.12.2000
1.Shiv Devi Widow of Late Om Parkash.
2.Shyam Sunder ( Minor ) D/O Late Om Parkash.
3.Triloki Nath S/O Raja Ram (Petitioner no. 2 born posthumously to the deceased on 02.03.2001 and substituted by name vide the orders of Hon'ble Court dated 18.09.2001) All residents of :
B-29,Kusum Pur Pahari, Vasant Kunj,New Delhi Permanent residents of Village Sehmuhi deeh, Post Office Ram Pur,Tehsil Marhiyahoo, District Jone Pur, U.P. ..........PETITIONER 1/21 2 VERSUS
1.Harnarayan S/O Kanhaiya Lal.
R/o Village and Police Station Bagh Dola,P.S Dwarka, Delhi
2.Braham Prakash S/O Kanhaiya Lal. R/o Village and Police Station Bagh Dola,P.S Dwarka, Delhi.
.........RESPONDENTS Arguments heard on 10.4.2007.
Date of order 20.4.2007.
Compensation claimed-Rs.15,00,000/-
AWARD :
Vide this order I shall dispose of two petitions bearing no. 481/00 titled Prabhawati Vs. Har Naryan, and petition no. 483/00 titled Shiv Devi Vs. Har Naryan as both these petitions arise out of same accident dated 3.9.2000. Both these cases have also been consolidated vide order dated 19.5.2003. Petition no. 481/00 titled Prabhawati Vs. Har Naryan, has been treated as main petition.
2. According to petitioner Prabhawati on 3.9.2000 at about 5:40 p.m deceased Kamla Prasad was sitting on the pillion seat of cycle peddled by Om Parkash, who had also died in this accident on the National High Way No.8, going from side of Gurgaon towards Delhi. They were going on their correct side of the road. When they reached opposite H.P. Petrol Pump near Rang Puri suddenly a tractor having No registration No being driven rashly and negligently by R.1 came from behind and 2/21 3 hit the bicycle. As a result of which one of the deceased sustained fatal injuries and died on the spot whereas pillion rider Kamla Prasad sustained fatal injuries and died in hospital.
3. Petition No 483/2000 titled Shiv Devi Vs. Har Naryan has been filed by Shiv Devi on the same grounds, claiming compensation on account of death of her husband Om Parkash in this accident.
4. Notices of these petitions were issued to both the respondents. None appeared on behalf of respondent No.2 hence on 25.11.2002 he was proceeded exparte. Initially Respondent No.1 appeared and filed his WS but on 19.5.2003 he was proceeded exparte.
5. On the pleadings of parties, following issues were framed in both the Petitions by my learned Predecessor vide order dated 19.5.2003 :
i) Whether the deceased Kamla Parsad and Om Parkash sustained fatal injuries in road accident dated 3.9.2000 because of rash and negligent driving of tractor bearing Chessis No.CBSN 226280 and Engine No.ENXC 228653 by respondent no. 1, owned by R2 as alleged?
...OPP
ii) If issue no.1 is proved in affirmative, to hat amount of compensation petitioners would be entitled to and from whom?
...OPP
iii) Relief.
3/21 46. In order to prove their case petitioner Triloki Nath appeared as PW1 and Petitioner Chunni Lal appeared as PW2. They have also produced PW3 R.K. Garg, PW4 HC Maha Singh. Respondents have not produced any evidence as they were exparte.
7. Arguments heard. File perused. My issuewise findings are as under:
ISSUE NO.1 IN BOTH THE PETITIONS :
8. Petitioners in their statement have specifically deposed that deceased was their sons who died in this road accident. PW 4 has proved FIR which is Ex PW4/A. These witness have not been cross examined on behalf of respondent as respondent have already been proceeded exparte. As statement of PWs remained unrebutted and unchallenged hence there is no reason to disbelieve the statements of these witnesses.
9. Hon. Supreme Court in the recent case titled Khushnuma Begum and others vs. New India Assurance Company ltd. Reported as 2001 ACJ 428 has held in para no. 10 and 11 as follows:-
"It must be noted that the jurisdiction of the Tribunal is not restricted to decide claims arising out of negligence in the use of motor vehicles. Negligence is only one of the species of the causes of action for making a claim for compensation in respect of accident 4/21 5 arising out of the use of motor vehicles. There are other premises for such cause of action.' ' Even if there is no negligence on the part of the driver or owner of the motor vehicle, but accident happens while the vehicle was in use, should not the owner be made liable for damages to the person who suffered on account of such rule in Ryland V. Fletcher, 1861-73 All ER, 1 can apply in motor accident cases. The said rule is summarised by Blackburn J. Thus:
" The true rule of law is that the person who for his own purposes , brings on his land, and collects and keeps there anything likely to do mischief if escapes must keep it at his peril and , if he does not do so, he is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape can owing to the plaintiff's default, or perhaps, that the escape was the consequence of vis major, or the act of God; but as nothing of this sort exists here. It is unnecessary to inquire what excuse would be sufficient.
10. Hon. Supreme Court further observed in para 18 as follows:-
'' Like any other common law principle, which is acceptable to our jurisprudence , the rule in Rylands V. Flectcher, 1861-73 All ER, 5/21 6 1 can be followed at least until any other new principle which excels the former can be evolved, or until legislation provides different. Hence, we are disposed to adopt the Rule in claims for compensation made in respect of motor accidents.''
11. Hon. Supreme Court in another case titled N.K.V Brothers (P) Ltd. vs. M. Karumai Ammal reported as 1980 ACJ 435 has held as follows:-
"Motor Vehicles Act, 1939, sections 110-B and 110-C-Law reforms-Claims Tribunals-Powers and procedure-Tribunals must take special care to see that the innocent victims do not suffer and drivers do not escape liability merely became of some doubt here or some obscurity there-Save in plain cases culpability must be inferred from the circumstances where it is fairly reasonable-Supreme Court suggested the State must seriously consider no fault liability by legislation and State must appoint sufficient number of Tribunals for quick disposal."
12. Our Hon. Supreme in Pushpa Bai Purshotam Dass vs. Ranjeet Ginning and Pressing company 6/21 7 (1977) 3 S.C.R 372 has held as follows:
"The car was being driven rashly and negligently . Although no eye witness was examined P.W.1 the brother of the deceased who went to the spot soon after the accident was examined. He deposed that the car dashed against a tree. The tree was on the right hand side of the road, 4ft away from the right-hand side of the main metalled road. The road was 15 ft. wife and was a metalled road. On other side of the road there were field at lower level. The tree against which the car dashed was uprooted about 9to 10 from the ground. The car dashed so violently that the machine of the car went back about a foot from its original position. The steering wheel of the engine of the car receded back on the driver's side and the said impact on the driver's side and by the said impact the occupants died and front seat also moved back. The witness was not cross-examined on these facts. The maxim of "Res ipsa loquitor" clearly applies in the present case. In view of the proved facts the burden was on the respondents to prove the inevitable accident.''
13. It has been observed as follows in Eller Vs. Selfridge (1930) 46 T.L.R 236:
" The normal rule is that it is for the plaintiff to prove negligence but in some cases considerable hardship is caused to the plaintiff as the true cause of the accident is not known to him but is solely within the knowledge of the defendant who caused it. The plaintiff can prove the accident but cannot prove how it happened to establish negligence on the part of the defendant. This hardship is sought to be avoided by applying the principle of res ipsa loquitor. It means the accident "speaks for itself" or "tells its own story."7/21 8
14. Hon'ble High Court of Karnataka in Mallamma Vs Balaji & Ors II (2003) ACC 257 has held as under:-
"Held: It is a well settled law that the strict rules of Evidence Act need not be applied in a case of motor vehicle accident to prove its negligence in para 11 of the judgment of the Tribunal has observed that the claimant has not proved the negligence of the driver of the vehicle."
15. Hon'ble High Court of Andhra Pradesh in Pillutla Savitri & Ors VS Gogineni Kamalendra Kumar & Ors I (2001) ACC 263 has observed as follows:-
"Torts: Res Ipsa Loquitur: Applicability - It is not always necessary that direct proof of negligence should be adduced by plaintiffs-
circum-stances from which reasonable inference of negligence on defendants can be drawn is enough- Negligence is not a question of but inference to be drawn from proved facts-
General purport of 'res ipsa loquitur' is that accident' speaks for itself'- Burden of proof 8/21 9 on defendant to explain and show that accident occurred without any on his part- It is not a rule of law but evidence- Defendants failed to establish specific plea put forward by them that construction was made by after obtaining due sanction from Municipality- They failed to sanctioned plan or order of approval from Municipality- Adverse inference drawn against defendants."
16. Hon'ble High Court of Madhya Pradesh in Basant Kaur Vs. Chatterpal Singh 2003 ACJ-369 has held as follows:-
Negligence -Accident between truck 'A' and truck 'B' resulting in death of driver of truck 'A'-Widow of the deceased was informed by owner of truck 'A' that driver of truck 'B' was driving his truck rashly and negligently and caused the accident- Criminal case has been registered against driver of truck 'B' - Tribunal held that negligence of driver of truck 'B' is not proved and it dismissed the claim petition- Whether the facts are enough to record a finding that driver of truck 'B' was responsible for casing the accident- Held: Yes.
17. Our Hon'ble High Court in Veena Kumari Vs Jasveer Singh 2003 VII AD (Delhi) 598 has held as 9/21 10 follows:-
"Motor. Vehicles Act-
Sections 140, 163A-Death in accident-Tribunal dismissed the petition on the ground that the appellants were not able to prove that the accident was caused due to the rash and negligent driving of the offending vehicle by its driver-Hence the present appeal against the judgment of the Tribunal by the claimants-
Principles laid down in S.Kaushnuma Begum Vs New India Assurance Co. Ltd be applied."
18. Our Hon'ble High Court in Bala and ors Vs Moti Chand Gupta 107 (2003) DLT 643 has held as follows:-
"Motor Vehicles Act, 1988-
Sections 158(6)(4), 166 (4)-Compensation:
Application may be made not only by LRS. Of deceased: Even charge-
sheet submitted by Police Officer to Tribunal to be treated as application for compensation by Claims Tribunal: Tribunal should not have taken technical view that charge-sheet and other documents should be proved by witness: Perusal 10/21 11 of charge-sheet clearly shows it was offending vehicle involved in accident and driver of that vehicle charged to face trial for offence punishable under Sections 219/304-A IPC: Tribunal should have taken recourse to Section 163-A to grant relief to appellant on ground of no fault liability: Judgment of Tribunal being perverse, set aside."
19. In these circumstances this court is of opinion that petitioners have proved their case that this accident on 3.9.2000 had taken place because of rash and negligent driving of Tractor bearing Chessis No.CBSN 226280 and Engine No.ENXC 228653 by respondent No.1 in which deceased have died, as pleaded by the petitioners in their petition. Hence this issue is decided in favour of petitioners against the respondents.
ISSUE NO.2 IN PETITION NO 481/2000:
20. Petitioner No.4 Chunni Lal has appeared in the witness box as PW2. He has stated that deceased was his son who died in this road accident on in September 2000. Petitioner No.1 is his wife.
Petitioner No.2 and 3 are his minor daughter and sons. Deceased was 30 years of age at the time of 11/21 12 his death. He was a fruit/ vegetable hawker earnings Rupees about 200/- per day.
21. Petitioners have not produced any documentary evidence with regard to earnings of deceased. In these circumstances this court is assessing earnings of deceased according to Minimum Wages Act.
22. It is argued on behalf of petitioners that deceased was a youngman of 30 years of age hence chances of advancement of his future prospects may be taken in consideration while granting compensation to the petitioners.
23. Starting point for calculating amount of compensation to be paid to dependents of deceased in a Motor Accident Claim is the amount of wages which the deceased was earning; then there is an estimate of what was required for his personal and living expenses. The balance will generally be turned into lumpsum by taking certain number of years of purchase. The choice of multiplier is ascertained by the age of the deceased or that of the claimant whichever is higher.
24. In case of Sarla Dixit Vs. Balwant Yadav AIR 1996 SC 1272 it was held by Hon. Supreme Court that while calculating dependency the chances of future prospect of advancement in life and career should be taken into consideration. The gross 12/21 13 monthly income of the deceased would shoot up at least double of that which he was earning at the time of his death had he survived. The average gross future income would be arrived at by adding actual gross income at the time of death to the maximum which he had otherwise got had he not died premature death and dividing it by two, gross monthly income spread over his entire future career had he been alive would be calculated.
25. Even a minimum wager has a future prospects of advancement which is clear from the fact that minimum wages are being revised every year by the Government. Minimum wages of an unskilled labour were Rs.240/- pm on 1.1.1980 while the minimum wages of unskilled labour were Rs.3044/- pm as on 1.2.2005. It is a matter of experience that DA is being revised every year twice by the government, hence, pension and salary of government servant increases every year twice.
26. Taking judicial notice of this fact this Court is of considered opinion that future prospects of advancement even of a minimum wager deceased should also be taken in consideration while assessing loss of dependency to the petitioners.
27. No documentary evidence with regard to age of deceased has been produced. Petitioner in her statement has given age of deceased 30 years, 13/21 14 in the post mortem report age of deceased is also mentioned as 30 years, hence this court is taking his age as 30 years at the time of his death.
28. Normal span of life in this part of country is 70 years. Thus deceased was having a long span of life of about 40 years yet to live had he not died in this accident.
29. This accident had taken place on 3.9.2000 i.e about seven years ago from today as deceased had still to live about 33 years more from today had he not died in this accident. Minimum wages increased from Rs. 240/- in the year 1980 to Rs. 3165.90 in the year 2005, thus there is an increase of about more than 12 times in the span of 25 years. Deceased had to live for about 33 years more from today onwards when this case is being decided by this court.
30. Thus after taking chances of future advancement prospects of deceased in consideration, his average earnings will be assessed as Rs.2524+ 5048 =Rs.7572/2 = 3786 pm. Out of it 1/3rd amount will be deducted on account of personal expenses of the deceased. Hence the total loss of dependency of claimants will be 3786-1263=2524 p.m. Yearly dependency will be 2524 x 12 =30,288/-
31. Deceased was 30 years of age at the time of this accident. Multiplier for the age group of a 14/21 15 person between 30 yrs to 35 yrs as per second schedule of Motor Vehicle Act is 17. After considering the young age of child and widow this court is adopting this multiplier.
32. Hence the total loss of dependency of claimants will be 30288x17= 5,14,896/-. Petitioners will also be entitled for an amount of Rs 25,000/- on account of loss of love, affection and consortium and Rs 5000/- towards funeral expenses. Thus petitioners will be entitled for a total compensation of Rs 5,44,896/-( Rounded off to Rs.5,45,000/-) less the amount of interim award, if any, already received by her along with 7 % interest. This issue is decided accordingly.
ISSUE NO.2 OF PETITION NO.483/2000:
33. Petitioner No.3 Triloki Nath has appeared in the witness box as PW1 he has stated that deceased was his son who died in this road accident on in September 2000. Petitioner No.1 is his wife. Petitioner No.2 his minor son. Deceased was 22 years of age at the time of his death. He was running a tea stall earnings Rupees about 175/- to 200/- per day.
34. Petitioners have not produced any documentary evidence with regard to earnings of deceased. In these circumstances this court is assessing earnings of deceased according to Minimum 15/21 16 Wages Act.
35. It is argued on behalf of petitioners that deceased was a youngman of 22 years of age hence chances of advancement of his future prospects may be taken in consideration while granting compensation to the petitioners.
36. Starting point for calculating amount of compensation to be paid to dependents of deceased in a Motor Accident Claim is the amount of wages which the deceased was earning; then there is an estimate of what was required for his personal and living expenses. The balance will generally be turned into lumpsum by taking certain number of years of purchase. The choice of multiplier is ascertained by the age of the deceased or that of the claimant whichever is higher.
37. In case of Sarla Dixit Vs. Balwant Yadav AIR 1996 SC 1272 it was held by Hon. Supreme Court that while calculating dependency the chances of future prospect of advancement in life and career should be taken into consideration. The gross monthly income of the deceased would shoot up at least double of that which he was earning at the time of his death had he survived. The average gross future income would be arrived at by adding actual gross income at the time of death to the maximum which he had otherwise got had he not died premature death and dividing it by two, gross 16/21 17 monthly income spread over his entire future career had he been alive would be calculated.
38. Even a minimum wager has a future prospects of advancement which is clear from the fact that minimum wages are being revised every year by the Government. Minimum wages of an unskilled labour were Rs.240/- pm on 1.1.1980 while the minimum wages of unskilled labour were Rs.3044/- pm as on 1.2.2005. It is a matter of experience that DA is being revised every year twice by the government, hence, pension and salary of government servant increases every year twice.
39. Taking judicial notice of this fact this Court is of considered opinion that future prospects of advancement even of a minimum wager deceased should also be taken in consideration while assessing loss of dependency to the petitioners.
40. No documentary evidence with regard to age of deceased has been produced. Petitioner in her statement has given age of deceased 22 years, in the post mortem report age of deceased is also mentioned as 20/22 years, hence this court is taking his age 22 years at the time of his death.
41. Normal span of life in this part of country is 70 years. Thus deceased was having a long span of life of about 48 years yet to live had 17/21 18 he not died in this accident.
42. This accident had taken place on 3.9.2000 i.e about seven years ago from today as deceased had still to live about 41 years more from today had he not died in this accident. Minimum wages increased from Rs. 240/- in the year 1980 to Rs. 3165.90 in the year 2005, thus there is an increase of about more than 12 times in the span of 25 years. Deceased had to live for about 41 years more from today onwards when this case is being decided by this court.
43. Thus after taking chances of future advancement prospects of deceased in consideration, his average earnings will be assessed as Rs.2524+ 5048 =Rs.7572/2 = 3786 pm. Out of it 1/3rd amount will be deducted on account of personal expenses of the deceased. Hence the total loss of dependency of claimants will be 3786-1263=2524 p.m. Yearly dependency will be 2524 x 12 =30,288/-
44. Deceased was 22 years of age at the time of this accident. Multiplier for the age group of a person between 20 yrs to 25 yrs as per second schedule of Motor Vehicle Act is 17. After considering the young age of child and widow this court is adopting this multiplier.
45. Hence the total loss of dependency of claimants will be 30288x17= 5,14,896/-.
18/21 19Petitioners will also be entitled for an amount of Rs 25,000/- on account of loss of love, affection and consortium and Rs 5000/- towards funeral expenses. Thus petitioners will be entitled for a total compensation of Rs 5,44,896/-( Rounded off to Rs.5,45,000/-) less the amount of interim award, if any, already received by her along with 7 % interest. This issue is decided accordingly.
RELIEF IN PETITION NO.481/00:
46. In view of foregoing discussion petitioners will be entitled for a total compensation of Rs.5,45,000/-(Rupees Five Lacs and Forty Five Thousand Only) less the amount of interim award, if any, already received by her along with 7 % interest from the date of filing of this petition till realization of the amount. Out of the total awarded amount Rs. 2,45,000/- shall be payable to petitioner no.1, Rs. 1,25,000/- each shall be payable to petitioners no. 2 and 3 Rs. 50,000/- shall be payable to petitioner no. 4.
47. 70% of the awarded amount of petitioners no. 1 and 4 will be deposited in the form of FDRs for a period of 7 yrs in any Nationalized bank with the provision that they may opt for awarding of periodical interest but no loan shall be granted against the said FDRs.
19/21 2048. Entire amount of petitioners no. 2 and 3 will be deposited in the form of FDRs in any Nationalized bank till they attains the age of 21 years, however Petitioner No.1 will be entitled to receive interest on the FDRs of minor petitioners for their maintenance but she will not obtain any loan against these FDRs.
49. Both the respondents will be jointly and severally liable to pay this amount, they are directed to deposit the awarded amount by way of cheques in the name of petitioners within 30 days from today.
RELIEF IN PETITION NO.483/00:
50. In view of foregoing discussion petitioners will be entitled for a total compensation of Rs.5,45,000/-(Rupees Five Lacs and Forty Five Thousand Only) less the amount of interim award, if any, already received by her along with 7 % interest from the date of filing of this petition till realization of the amount. Out of the total awarded amount Rs. 3,45,000/- shall be payable to petitioner no.1, Rs. 1,50,000/- shall be payable to petitioners no. 2 and a sum of Rs. 50,000/- shall be payable to petitioner no. 3.
51. 70% of the awarded amount of petitioners no. 1 and 3 will be deposited in the form of FDRs for a period of 7 yrs in any Nationalized bank with 20/21 21 the provision that they may opt for awarding of periodical interest but no loan shall be granted against the said FDRs.
52. Entire amount of petitioners no. 2 will be deposited in the form of FDR in any Nationalized bank till he attains the age of 21 years, however Petitioner No.1 will be entitled to receive interest on the FDRs of minor petitioners for his maintenance but she will not obtain any loan against these FDRs.
53. Both the respondents will be jointly and severally liable to pay this amount, they are directed to deposit the awarded amount by way of cheques in the name of petitioners within 30 days from today.
A copy of this award be placed on each file.
Order accordingly. File be consigned to R.R. ANNOUNCED IN OPEN COURT ON DATED 20.4.2007.
(V.K. MAHESHWARI) PRESIDING OFFICER: MACT 21/21