Delhi District Court
Smt. Maya vs ) Mr. Yagya Dev (Driver) on 24 February, 2015
IN THE COURT OF MS. SUKHVINDER KAUR, PRESIDING OFFICER,
MOTOR ACCIDENT CLAIMS TRIBUNAL, ROHINI COURTS, DELHI
(MACT Case no. 1180/10)
1. Smt. Maya
Widow of deceased Pawan
2. Smt. Gando Devi - mother
3. Master Madan - son
4. Kumari Kajal - daughter
5. Baby Kumkum - daughter
Petitioner no. 5 being represented
through petitioner no. 1 mother / natural guardian
All R/o A-1031/1, Gali No. 1, A Block,
Khajoori Khas, Delhi-110094.
----Petitioners
Versus
1) Mr. Yagya Dev (Driver)
S/o Sh. Ram Kishor
R/o E-1070, Jahangirpuri, Delhi
2) M/s Delhi MSW Solutions Ltd. (Owner)
6-3-1089/10 & 11,
Gulmohar Avenue, Rajbhawan Road,
Somaji Gudda, Hyderabad-500082
Through Authorized Representative
Sh. Binod Kumar
S/o Sh. Deenanath
R/o D.N. 155-56, 1st Floor,
Gandhi Vihar, Delhi-110089.
3) HDFC ERGO General Insurance Company Ltd. (Insurer)
14, Ambadeep Building,
K.G. Marg, New Delhi.
........Respondents
Date of institution ......05.10.2010
Date of decision........24.02.2015
Smt. Maya V. Yagya Dev
MACT no. 1180/10 1 of 15
Claim petition under Section 166 & 140 of the Motor Vehicles Act.
JUDGMENT:-
1. Petitioners/LRs of the deceased filed claim petition under Section 166 & 140 of the Motor Vehicles Act (hereinafter referred to as 'MV Act') on 05.10.2010 for claiming a compensation of Rs. 20 lacs for the death of Sh. Pawan in the accident. Police has filed the detailed accident report (DAR) on 24.11.2010 in respect of road accident which occurred on 28.06.2010 at about 12.30 midnight in between SGT Nagar Red Light and CNG Pump for which a criminal case vide FIR no. 173/10 under Section 279/304-A IPC PS Samaypur Badli was registered against Yagya Dev, driver of offending vehicle i.e MCD truck bearing registration no. DL1GB-6924 which was ordered to be merged with claim petition vide order dated 22.01.2011. The case of the petitioners is that on 28.06.2010 deceased was coming to his home in a TSR. At about 12.30 midnight when he reached in between SGT Nagar Red Light and CNG Pump, the driver of TSR parked it by the side of road for urinating and the deceased also got down for urinating. In the meanwhile MCD truck bearing registration no. DL-1GB 6924 which was driven by its driver at a very high speed, rashly, negligently came and hit the TSR due to which the TSR ran over the deceased. Someone called the police and PCR van removed the deceased to BSA hospital where he was treated vide MLC no. 5295 dated 28.06.2010, however he could not survive and succumbed to the injuries sustained in the accident. The accident had occurred due to rash and negligent driving of the offending truck driven by its driver. The deceased was young person and possessing sound mind, health and earning Rs.
Smt. Maya V. Yagya Dev MACT no. 1180/10 2 of 15
12000/- to 15000/- per month and maintaining his entire family. Respondent no. 1 being the driver, respondent no. 2 being owner and respondent no. 3 being insurer of the offending vehicle are jointly and severally liable to pay compensation to the petitioners. Hence, a compensation of Rs. 20 lacs has been claimed.
2. The claim of petitioners has been contested by all the respondents.
Respondents no. 1 in his written statement has taken the preliminary objection inter alia that that accident had taken place due to the negligence of deceased himself and the petitioners have filed the petition on false and baseless ground. On merit, all the other contents of petition have been denied. Respondent no. 2 in his written statement has taken the preliminary objection that petitioners have concealed the material and vital facts and petition is bad for misjoinder and non- joinder of necessary parties and deserves dismissal. It is pleaded that the vehicle of respondent no. 2 was duly insured at the time of accident and driver of the offending vehicle was holding valid driving licence for plying the vehicle. On merits, the contents of petition have been denied generally. Respondent no. 3 in its written statement has not disputed the fact that the offending vehicle was insured with it on the date of accident. However it has taken preliminary objection that the driver of the offending vehicle was not holding valid and effective driving licence at the time of accident. On merit, factum of accident has been denied for want of knowledge.
3. On the pleading of the parties following issues were framed by Ld. Predecessor of the Court for consideration vide order dated 11.07.2011:
1. Whether Sh. Pawan Kumar died due to road accident on 28.06.2010 at about 12:30 night, in between SGT Nagar Red Light and CNG Pump, Delhi within the jurisdictions of PS:
Smt. Maya V. Yagya Dev MACT no. 1180/10 3 of 15 Samaypur Badli dur to rash and negligent driving of vehicle no. DL-1GB-6924 being driven by respondent no. 1? OPP.
2. Whether the petitioners are entitled for compensation, if so to what an extent and from which of the respondents? OPP.
3. Relief.
4. In order to establish their claim, PW2 Smt. Maya Devi, widow of deceased, has filed her evidence by way of affidavit Ex. PW2/A. Mr. Rakesh Kumar, eye witness of the accident has also been examined as CW1. Respondent no. 1 has examined himself as RW1, whose evidence by way of affidavit has been tendered as R1W1/A. RW2 Mr. TV Bhaskar Reddy has been examined on behalf of respondent no. 2.
No evidence has been adduced on behalf of the respondent no. 3. Though the evidence by way of affidavit of Gando Devi, mother of deceased has also been filed in evidence which has been tendered as PW1/A however vide orders dated 09.02.2012, Smt. Gando Devi was dropped from the list of witnesses. Hence her testimony can not to be read in evidence.
I have perused the record and given thoughtful consideration to the arguments addressed by the ld. counsel for parties. My findings on the issues are as under:
5. ISSUES NO. 1.
CW1 has deposed that accident had occurred on 28.06.2010 on the service road SGT Road, near CNG Pump. On that day, at about 12:30 am (midnight) he was going towards Khazuri Khas from By-pass. One passenger was also sitting in his TSR and he stopped TSR on the service road for urination. The passenger who was sitting in the TSR also got down for the call of nature. The passenger was standing on the road side. In the meanwhile, an MCD truck bearing no. 6924, the prefix of which did not recollect, suddenly came at a fast speed and hit against the TSR at its back Smt. Maya V. Yagya Dev MACT no. 1180/10 4 of 15 and also the deceased who was standing near the TSR. As a result of impact, the passenger fell down on the road and the public gathered at the spot. Somebody from the public made call to the PCR. In the meanwhile, he went to the house of the injured to inform about the accident to his family members. The accident had occurred due to the negligence on part of the truck driver. In his cross examination, he denied the suggestion that the TSR was parked in the middle of the road. He clarified that it was parked on the road side on the service lane. He also denied the suggestion that his TSR was parked on the wrong side and that the accident had occurred due to wrong parking of the TSR by him. He has not at all been cross examined on the point that the offending truck had hit against the passenger(deceased) who was standing near the TSR meaning thereby that there is no dispute that the deceased was hit while standing on the road side by the offending vehicle. The manner in which the accident had occurred itself shows the gross rashness and negligence on the part of truck driver. Further respondent no. 1 has been chargsheeted by the police u/s 173 Cr.PC for causing the accident. Respondent no. 1 though in this written statement has taken the plea that accident was not caused due to his negligence and he has also filed his evidence by way of affidavit which has been tendered as R1W1/A, however in his cross examination, he admitted that he had no enmity with the IO and he did not file any complaint against the IO for his false implication. He also admitted that he was facing trial in the criminal case. He, in his testimony has also not explained the manner in which the accident had occurred or how the was deceased was responsible for the accident. It has been held by the Hon'ble Supreme Court in NKB Brother(P) Ltd. v. M Karumal Ammal AIR 1980 SC 1354 :
"the accident tribunals must take special care to see that Smt. Maya V. Yagya Dev MACT no. 1180/10 5 of 15 innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here and some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic maybes".
Further, I rely on the judgment of Hon'ble Supreme Court in Bimla Devi (2009) 13 SC 530 wherein Hon'ble Supreme Court held "It was necessary to be born in mind that strict proof of accident caused by a particular bus in a particular manner may not be possible to be done by the claimant. The claimant were merely to establish their case on the touchstone of preponderance. The standard of proof beyond reasonable doubt could not have been applied"
In view of the above discussion, testimony of eye witness and certified copies of the criminal case record, the preponderance of probability is that the deceased had died due to injuries received by him in the accident which occurred on 28.06.2010 at about 12:30 night, in between SGT Nagar Red Light and CNG Pump, Delhi due to rash and negligent driving of vehicle no. DL-1GB-6924 being driven by respondent no. 1. Issue no. 1 is thus decided in favor of petitioners / LRs of deceased and against the respondents.6. ISSUE NO. 2
LOSS OF DEPENDENCEY PW2 testified that her husband late Sh. Pawan was 23 years old and working as motor mechanic and was earning Rs. 12,000-15,000p.m. He was sole bread earner of the entire family and left behind his widow, Smt. Maya V. Yagya Dev MACT no. 1180/10 6 of 15 a female child(delivered after his death), widow mother, one minor brother and minor sister as his LRs. He was running his own business near marginal road, Khajuri Chowk, Delhi and maintaining the entire family. In her cross examination, she testified that her husband was 5th / 6th standard pass. She denied the suggestion that he was not working as motor mechanic and not running a work shop on road side. There is no documentary evidence on record in proof of income of the deceased or to establish that he was working as mechanic. In the absence of any documentary evidence, the income of the deceased is assessed on the Minimum Wages Act. The minimum wages of un-skilled worker on the date of accident were Rs. 5,278/-p.m. Though Ld counsel for the petitioner has relied on judgment by Hon'ble Supreme Court Rajesh Vs. Rajbir Singh & ors 2013 (6) SCALE 563, in support of his arguments that the LRs are also entitled to future prospects to the extent of the 50% of the income of the deceased, however in view of law laid down by Hon'ble High Court in HDFC Ergo General Insurance Ltd. Vs. Smt. Lalta Devi and others pronounced by Hon'ble High Court on 12.01.2015 in MAC APP 189/2014 wherein Hon'ble High Court discussed the divergent judgments given by Hon'ble Supreme Court in Sarla Verma & Ors Vs. DTC(2009)6SCC121, Reshma Kumari & Ors Vs. Madan Mohan & Another(2013)9SCC65, Rajesh Vs. Rajbir Singh & Ors(2013)9SCC54, since the deceased was not the salaried person, his LRs are not entitled to future prospects. In para-16 of the judgment Hon'ble High Court held:
"16 Further the divergence of opinion in Reshma Kumar & Ors Vs Madan Mohan & Another(2013)9SCC65 and Rajesh & Ors Vs. Rajbeer Singh & Ors(2013)9SCC54 was noticed by the Supreme Court in Smt. Maya V. Yagya Dev MACT no. 1180/10 7 of 15 another latest judgment in National Insurance Company Ltd. Vs. Pushpa & Ors : CC No. 8058/2014 decided on 02.07.2014 and in concluding paragraph while making reference to the larger bench, the Supreme Court held has under-
"be it noted though the decision in Reshma(Supra) was rendered at the earlier point of time, as is clear, the same has not been noticed in Rajesh(Supra) and that is why the divergent opinion has been expressed. We are of the considered opinion that as regard the manner of addition of income of future prospects, there should be an authoritative pronouncement. Therefore, we think it appropriate to refer the matter to larger bench."
In para 17 & 18 Hon'ble High Court further held "17 now, the question is which of the judgment ought to be followed awaiting answer to the reference to the Supreme Court in Pushpa & Ors (Supra)".
"18 In Central Board of Dawoodi Bohra Community & Another Vs. State of Maharashtra & Another (2005)2SCC673 in Para 12, the Supreme Court observed as under:-
"12- having carefully considered the submissions made by Ld Senior Counsel for parties and having examined the law laid down by the constitution benches in the aforesaid decisions, we would like sum up the legal position in following terms"-
1. The law laid down in this court in a decision delivered by bench of larger strength is binding on any subsequent bench of lesser or co- equal strength.
2.[Ed.: Para 12(2) corrected vide Official Corrigendum No. F. 3/Ed.B.J./21/2005 dated 3-3-2005.] Smt. Maya V. Yagya Dev MACT no. 1180/10 8 of 15 A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.
3. Ed.: Para 12(3) corrected vide Official Corrigendum No. F. 3/Ed.B.J./7/2005 dated 17-1-2005.] The above rules are subject to two exceptions: (i) the abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and
(ii) in spite of the rules laid down herein above, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of the Chief Justice constituting the Bench and such listing.
Such was the situation in Raghubir Singh [(1989) 2 SCC 754] and Hansoli Devi[(2002) 7 SCC 273]".
Smt. Maya V. Yagya Dev MACT no. 1180/10 9 of 15
In Para 20, Hon'ble High Court further observed 20 "in UOI Vs. S.K. Kapoor, (2011)4SCC589 while holding that the decision of the coordinate bench is binding on the subsequent bench of equal strength held that the bench of coordinate strength can only make reference to the larger bench."
It is was further held Para 21 & 22:
21 "This court in New India Assurance Co. Ltd Vs. Harpal & Ors in MAC APP 138/2011 decided on 06.09.2013, went into this question and held that in view of the report in S.K. Kapoor(Supra), the three judge bench decision in Reshma Kumari & Ors (Supra) shall be taken as a binding precedent".
"22 Consequently it cannot be said that every person including the student would be entitled to addition of 50% towards future prospects".
7. It is pertinent mention here that in Reshma Kumari & Ors(Supra), the three bench of Hon'ble Supreme Court followed the earlier landmark judgment of Hon'ble Supreme Court in Sarla Verma & Ors Vs. DTC (2009) 6 SCC 121 wherein it was held that an addition of 50% of actual salary was to be added to the actual salaried income of the deceased towards the future prospects, where the deceased had a permanent job and was below 40 years. The addition should only be 30% if the age of deceased was between 40-50 years. There should be no addition where the deceased is more than 50 years. Where the deceased was self employed or on a fixed salary(without provision of annual increment etc) the courts would usually take only the actual income at the time of death. The departure therefrom shall be only in rare or exceptional cases involving special circumstances.
8. In the present case since the the deceased was not a salaried person Smt. Maya V. Yagya Dev MACT no. 1180/10 10 of 15 and was self-employed, his LRs are not entitled to future prospects in the absence of evidence.
The year of birth of deceased as per ration card Ex. PW1/B is 1986. As per the postmortem report, his age was 20 years at the time of accident and as per testimony of PW2, he was 22 years old. Thus, deceased was between 20-25 years old on the date of accident. The appropriate multiplier is 18 as Reliance placed on Sarla Verma. In view of the evidence that the deceased has left behind 5 dependents, 1/4th of his income is to be deducted towards his personal expenses. Thus, the total dependency is assessed as 5278 x ¾ x 18 x 12= 8,55,036/-.
9. LOSS OF CONSORTIUM AND FUNERAL EXPENSES.
Hon'ble Supreme Court of India in Rajesh & Ors vs. Rajbir & Ors Civil Appeal no. 3860/2013 (arising out of SLP (Civil) no. 24825/2010) has observed:
"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 Smt. Maya V. Yagya Dev MACT no. 1180/10 11 of 15 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 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".
Hence, in view of the above cited judgment, I award a sum of Rs. 1 lac for the loss of consortium to the petitioners and a lump sum of Rs. 25,000/- as funeral charges.
10.LOSS OF LOVE & AFFECTION Following the judgment in Rajesh (Supra), in Brij Kishore and other Vs. Sandeep Kumar & Ors MAC. APP. 960/2013, Hon'ble High Court vide its order dated 28.10.13 granted Rs. 1 lakh towards loss of love and affection. Accordingly I grant Rs. 1 lakh towards loss of love and affection.
11.LOSS OF ESTATE Petitioners are also entitled to Rs. 10,000/- towards loss of estate in view of judgment of Hon'ble Supreme Court in Sarla Verma's case.
12.Thus the total compensation is assessed as under:-
1. Loss of dependency Rs. 8,55,036/-
2. Loss of consortium Rs. 1,00,000/-
3. Funeral charge Rs. 25,000/-
4. Loss of love and affection Rs. 1,00,000/-
5 Loss of estate Rs. 10,000/-
Smt. Maya V. Yagya Dev MACT no. 1180/10 12 of 15 Total Rs. 10,90,036/-
Respondent no. 2 has filed the evidence by way of affidavit of Mr. T.V. Bhaskar Reddy, authorized representative of respondent no.2 who testified that the offending vehicle was fit to be driven and duly insured with HDFC Ergo General Insurance Co. He also proved the RC of the offending vehicle as R2W2. He further testified that respondent no. 1 was employed as driver with respondent no.2 and was driving the vehicle at the time of accident. He also proved the DL of respondent no. 1 as R2W/3. He further testified that during the course of proceedings, it was revealed that the DL of respondent no. 1 was not genuine. Pursuant thereto, show cause notice was issued to respondent no.1 though the agency M/s ADDECO FLEXI ONE WORK FORCE SOLUTION LTD which provided the said driver to respondent no. 2 w.e.f 01.07.2010. Copy of show cause notice is Ex. R2W/4. In reply to the show cause notice, it was reiterated that respondent no. 1 has a genuine licence. Copy of reply is Ex. R2W/5. He further testified that respondent no. 2 throughout the employment of respondent no.1 was under the bonafide belief that respondent no. 1 has a valid DL and as such entitled to drive the vehicle. Immediately on coming to know that respondent no.1 was not having a valid DL, he was taken off the duty by respondent no. 2 through the agency which had provided the driver. RW2 has not been cross examined on behalf of insurance company. In his cross examination by the counsel for petitioner, he admitted that respondent no. 1 had a valid DL at the time of accident. The insurance company has not adduced any evidence to establish their defence that the respondent no. 1 was not having a valid licence. Even otherwise fake licence itself does not absolve the insurance company from its Smt. Maya V. Yagya Dev MACT no. 1180/10 13 of 15 liability. RW2 categorically deposed that respondent no. 2 throughout believed respondent no. 1 had valid licence and his testimony to that effect has not been rebutted. In NIC Ltd. V. Geeta Bhatt AIR 2008 SC 1837 Hon'ble Supreme Court held that notwithstanding the fact that licence possessed by driver is fake one, the insurer would not be absolved from the liability to reimburse the insured. The owner is bound to make a reasonable enquiry of the person who is authorized to drive holds a valid licence. He is not required to verify the genuineness thereof from the transport office. Hence, insurance company being the insurer is liable to indemnify the insured u/s 149 of MV Act.
13.ISSUE NO. 3 RELIEF:-
In view of my finding on issues no. 1 and 2, I award a sum of Rs. 10,90,036/- alongwith interest @ 9% per annum in favour of petitioners / LRs of deceased and against respondents jointly and severally ( reliance place on judgment New Insurance Company Ltd. Vs. Budhia Devi & Ors. Reported in 2010 ACJ 2045).
14.APPORTIONMENT Out of the compensation amount, petitioner no. 4 & 5 shall have share of Rs. 1,50,000/- each along with proportionate interest, petitioner no. 2 & 3 shall have a share of Rs. 1,00,000/- each along with proportionate interest. Petitioner no. 1 shall have the remaining compensation amount along with proportionate interest. The share of petitioner no. 3,4 & 5 will be kept in FDR till they attain the age of 21 years and in the case of petitioner no. 4 & 5 till they get married whichever is earlier but not before they attain the age of majority. Out of share of petitioner no. 2, Rs. 25,000/- be released to her through her saving bank account and remaining amount be kept in FDR in any nationalized bank for a period Smt. Maya V. Yagya Dev MACT no. 1180/10 14 of 15 of 3 years. Out of the share of widow, Rs. 50,000/- be released to her through her saving bank account and remaining amount be kept in FDR in any nationalized bank for a period of 10 years. Widow of the deceased shall be at liberty to withdraw the interest accrued on her FDR on monthly basis to meet the day to day expenses. It is clarified that no loan, advance or ATM facility shall be granted on the said FDR without prior permission of the court.
15.Respondent no. 3, being the insurance company it is directed to deposit the award amount alongwith upto date interest @ 9% with effect from filing the petition till the notice regarding deposit the award amount is sent to the LRs of deceased/petitioners within 30 days. Respondent no. 3 is further directed to prepare separate cheques of the compensation amount as per above order.
Copy of the judgment be given to the LRs/petitioners and the counsel for the insurance company for compliance.
Announced in the open court on 24.02.2015 (SUKHVINDER KAUR) Judge MACT-2 (North) Rohini Courts, Delhi Smt. Maya V. Yagya Dev MACT no. 1180/10 15 of 15