Delhi District Court
Smt. Sayara Khatoon vs 2 on 6 February, 2013
1
IN THE COURT OF SH.HARISH DUDANI
JUDGE:MOTOR ACCIDENT CLAIMS TRIBUNAL 1 NEW DELHI
SUIT NO.:59/12
DATE OF INSTITUTION: 13.3.2012
1. Smt. Sayara Khatoon
W/o Late Sh. Abdul Latif
2. Ms. Sahida
D/o Late Sh. Abdul Latif
3. Afsana
D/o Late Sh. Abdul Latif
4. Shamima
D/o Late Sh. Abdul Latif
5. Shakila
D/o Late Sh. Abdul Latif
6. Zafar Hussain
S/o Late Sh. Abdul Latif
7. Shabhana
D/o Late Sh. Abdul Latif
8. Chandini
D/o Late Sh. Abdul Latif
9. Najjum
D/o Late Sh. Abdul Latif
All R/o
35/249, Block 35,
Trilokpuri Delhi ............Petitioners
Versus
2
1. Sh. Sandeep Kukreja ................ Driver
S/o Sh. Manjit Singh
R/o H15/1, Malviya Nagar,
New Delhi.
2. Sh. Manjeet Singh ....................Owner
S/o Sh. Sardar Singh
R/o H15/1, Malviya Nagar,
New Delhi
..........Respondents
Final Arguments heard on : 22.1.2013 Award reserved for : 6.2.2013 Date of Award : 6.2.2013 AWARD
1. The DAR in case FIR no. 236/2011 under Section 279/304A IPC, PS Tilak Marg was filed by IO/ASI Amarbir Singh on 13.3.2012. The facts as disclosed in the DAR are that on 30.12.2011 an information was received vide DD no. 29A regarding accident at Mathura Road from Bhairon Road to Geological park and the said DD no. 29A was handed over to SI Ramji Lal who alongwith constable Harish reached the spot of accident and found TSR no. DL1RK7136 in accidental condition and came to know that injured has been removed to RML hospital. Ct. Harish was left at the spot and SI Ramji Lal reached RML hospital where Sh. Abdul Latif was found admitted in the hospital vide MLC no. E215500/11 and the injured 3 was declared unfit for statement. Thereafter IO SI Ramji Lal got registered the case under Section 279/337 IPC and the TSR was taken in police possession. IO recorded the statement of witnesses and injured Sh. Abdul Latif expired during treatment at RML hospital and the case was converted under Section 304A IPC. During investigation IO met Sh. Mohd. Moinuddin S/o Sh. Mohd. Hadis who was an eye witness and his statement under Section 161 Cr. PC was recorded in which he informed that accident had taken place with vehicle no. DL1TW9358. Notice under Section 133 Motor Vehicle Act was given to owner of said vehicle Sh. Manjit Singh who produced the offending vehicle and driver Sh. Sandeep Kukreja S/o Sh. Manjit Singh and Sh. Manjeet Singh stated that at the time of accident the vehicle bearing no. DL1TW9358 was being driven by Sh. Sandeep Kukreja. Sh. Manjit Singh could not produce the RC and insurance of the vehicle.
2. Driver and owner did not file reply/ written statement despite opportunities.
3. Vide order dated 2.4.2012 case was fixed for evidence on the point of negligence and quantum of compensation.
4. Ms. Sayara Khatoon, wife of deceased appeared in the witness box as PW1. She tendered her examination in chief by affidavit Ex.PW1/A. PW1 proved the death certificate of her husband as Ex. PW1/1, her election 4 identity card as Ex. PW1/3, election identity card of her husband as Ex. PW1/4, her ration card as Ex. PW1/5, attested copies of the DAR alongwith criminal record Ex.PW1/6(colly), copy of driving licence of deceased Ex. PW1/7 and postmortem report of deceased Mark X.
5. On 30.5.2012 PE was closed and case was fixed for RE. As per order dated 22.8.2012 driver/respondent no. 1 stated that he does not want to lead any evidence and closed RE. Owner/respondent no. 2 was proceeded exparte on 2.4.2012. On 25.8.2012 owner filed an application for setting aside the exparte order and same was allowed subject to cost of Rs. 1,000/. On 27.8.2012 the owner Sh. Manjit Singh/respondent no. 2 filed an application to summon the record from RTO. My Ld. Predecessor was pleased to dismiss the said application.
6. On 4.10.2012 Sh. Satish Chandra, Record Clerk from RTO Mall Road, appeared and stated that report no.MLO/142/12/950 dated 21.9.2012 regarding registration certificate of the offending vehicle has been filed however, the said number was temporary one and the record of temporary number was destroyed as the record of temporary number is maintained for one year and thereafter weeded out. Driver and owner have not appeared for submitting arguments.
7. I have heard the Ld. counsel for the petitioner and perused the record.
8. For succeeding in this claim petition, petitioners are required to prove 5 negligence on the part of the driver of the offending vehicle and that they are entitled to the quantum of compensation as claimed.
9. As this is a claim U/s 166 M.V Act it was incumbent upon the petitioners to prove that deceased sustained injuries in an accident caused due to rash and negligent driving of offending vehicles bearing registration no. DL1TW9358 by Sh. Sandeep Kukreja.
10.To determine the negligence of driver of offending vehicle it has been held in National Insurance Company Ltd. V/s Pushpa Rana & Another, 2009 ACJ 287 as follows:
"The last contention of the appellant insurance company is that the respondentsclaimants should have proved negligence on the part of the driver and in this regard the counsel has placed reliance on the judgment of the Hon'ble Apex Court in Oriental Insurance Company Ltd. V. Meena Variyal(supra). On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced:(i) certified copy of the criminal record of criminal case in FIR no. 955 of 2004, pertaining (ii) criminal record showing completion of investigation of police and issue of charge sheet under sections 279/304A , Indian Penal Code against the driver was lodged; (iii) certified copy of FIR wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of deceased. These documents are sufficient proofs to reach conclusion that the driver was negligent. Proceedings under the Motor Vehicle Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Hence this contention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on part of the driver."6
11. The present petition has been instituted on the basis of DAR and alongwith DAR, the police has filed copy of DD no. 29A dated 30.12.2011, copy of FIR no. 236/11 under Section 279/337 IPC, PS Tilak Marg, copy of MLC of deceased prepared at Dr. RML hospital and copy of postmortem report, copy of seizure memo of TSR no. DL1RK7136, copy of seizure memo of offending vehicle bearing no. DL1TW9358, copy of seizure memo of driving licence of driver Sh. Sandeep Kukreja S/o Sh. Manjit Singh, copy of arrest memo of Sh. Sandeep Kukreja, copy of bailbond of Sh. Sandeep Kukreja as per which the owner Sh. Manjit Singh stood surety for driver Sh.Sandeep Kukreja, copy of TIP proceedings of Sh. Sandeep Kukreja, copy of verification report of driving licence of Sh. Sandeep Kukreja, copy of mechanical inspection report of TSR and copy of mechanical inspection report of offending vehicle no. DL1TW9358. As per the mechanical inspection report of the TSR it has fresh damages as front mudguard dented, head light damaged, front show dented/pressed, dash board dented/pressed, front window screen glass broken/ frame pressed, chasis pressed/damaged, hood cloth torn/ pipe framed pressed and central portion dented/pressed. As per mechanical inspection of offending vehicle it has fresh damages as rear bumper dented, rear dipper dented/pressed, rear dipper glass broken, left and right side rear quarter pannel dented and front bumper was 7 scratched.
12. IO has also filed on record copy of notice under Section 133 Motor Vehicle Act issued to Sh. Manjeet Singh and seizure memo of offending vehicle as per which the offending vehicle was produced by Sh. Manjit Singh. As per charge sheet Ex. PW1/6(colly) driver Sh. Sandeep Kukreja S/o Sh. Manjit Singh has been charged for offences under Section 279/304 IPC and Section 32/177 and 146/196 Motor Vehicle Act in case FIR no. 236/11 PS Tilak Marg. The driver and owner have not led evidence to rebut the contents of charge sheet or to prove that accident had not taken place on account of rash and negligent driving of vehicle no. DL1TW9358 by respondent no. 1. Thus in view of documents on record the negligence of driver of offending vehicle has been prima facie proved.
13.As negligence of driver of offending vehicle has been proved petitioners are entitled to compensation.
14. It is stated that deceased Sh. Abdul Latif was 43 years of age at the time of accident and was TSR driver. In order to prove the age of deceased a copy of election identity card issued in favour of deceased has been filed which is Ex. PW1/4 as per which deceased Sh. Abdul Latif was 40 years of age as on 1.1.2008 and as per copy of driving licence of deceased on record Ex. PW1/7 the date of birth of deceased is 1.1.1969. Hence the 8 age of deceased at the time of accident was 43 years. As such the multiplier applicable according to the age of deceased in view of judgment of Sarla Verma Vs DTC (2009) 6 SCC 121 is of 14.
15.In para 3 of affidavit Ex. PW1/A, PW1 has stated that deceased was an Auto driver and was earning a sum of Rs. 15,000/ per month. A copy of the learner's licence issued in favour of deceased has been filed on record which is Ex. PW1/7 and the same was valid from 25.11.2011 to 24.5.2012. Although it has been pleaded that deceased was earning a sum of Rs. 15,000/ per month however, no documents have been filed on record to prove the income of deceased. The contention of counsel for petitioner is that in the absence of any proof of income, the income of deceased shall be taken as minimum wages of a skilled worker as he was TSR driver. However the deceased was in possession of learner's licence Ex. PW1/7 which was issued on 25.11.2011 and was valid till 24.5.2012. No permanent driving licence of deceased has been filed on record which can prove that deceased was a TSR driver. However, as per learner's licence Ex. PW1/7 the deceased can be treated as semi skilled worker and his wages can be taken as minimum wages of a semi skilled worker as on 1.10.2011 which was Rs. 7,358/.
16.However 30% has to be added to this assumed income on account of inflation as held by Hon'ble Supreme Court in Santosh Devi Vs National 9 Insurance Company Ltd. & ors MANU/SC/0322/2012 as under:
"14.............it would be reasonable to say that a person who is selfemployed or is engaged on fixed wages will also get 30 per cent increase in his total income over a period of time and if he/she becomes victim of accident then the same formula deserves to be applied for calculating the amount of compensation".
17.In view of the above judgment of Hon'ble Supreme Court, a person who is getting fixed salary or self employed as a skilled or unskilled labourer would also be entitled to 30% on account of inflation in cases where the deceased or victim is upto 50 years. After adding 30% the income of the deceased comes to Rs.9565.4/ per month which is rounded of as Rs. 9,565/pm.
18. In para 4 of affidavit Ex. PW1/A it is stated that deceased was survived by his wife and 8 children. It is stated that an affidavit of Smt. Sayara Khatoon wife of deceased has been filed alongwith DAR containing the names of 8 dependant children of deceased. A copy of ration card Ex. PW1/5 has been filed on record. In column 14 of form 54 which has been filed by IO, it has been mentioned that deceased is survived by 9 LR's i.e his wife and petitioners no. 2 to 9 his children. In column 12 of format of check list filed by IO also petitioners no. 1 to 9 have been mentioned as LR's of deceased.
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19.As deceased is survived by 9 dependents i.e. his wife and 8 children th 1/5 is to be deducted for personal and living expenses of the deceased.
th After deduction of 1/5 out of Rs.9,565/, the contribution of the deceased to his family would have been Rs.7,652/ and applying the multiplier of 14, the total loss of dependency is computed to be as Rs. 7,652/x12 x14=Rs.12,85,536/. Petitioners are also awarded Rs.25,000/ for loss of love and affection and Rs.10,000/each for funeral expenses, loss of estate and loss of consortium.
The total compensation is determined as under:
Loss of dependency : Rs. 12,85,536/
Funeral Expenses : Rs. 10,000/
Loss of Estate : Rs. 10,000/
Loss of Love and Affection : Rs. 25,000/
Loss of consortium : Rs. 10,000/
TOTAL : Rs. 13,40,536/
RELIEF
20.The petitioners are thus awarded Rs.13,40,536/(Rs. Thirteen Lacs Forty Thousand Five Hundred Thirty Six only) with interest at the rate of 9% per annum from the date of filing of DAR till realization including interim award, if any already passed in favour of the petitioner against the respondents. The liability of both the respondents being joint and several. 11 Out of the award amount petitioner no. 1 wife of deceased shall have a share of 40% and petitioners no. 2 and 9 shall have a share of 7.5% each. Entire share of petitioners no. 2 to 9 be kept in FDR for the period of 5 years or till they attain majority whichever is later.
21. For safeguarding the compensation amount from being frittered away by the claimants, directions have been given by Hon'ble Supreme Court for preserving the award amount in the case of Jai Prakash Vs. National Insurance Co. Ltd. and Others (2010) 2 Supreme Court Cases 607. In view of the directions contained in the above judgments the award amount is to be disbursed as follows:
22.It is stated that petitioner no. 1 wife of deceased has to support the family consisted of 8 children. In the circumstances, 20% of share of petitioner no. 1 be released to her and her remaining amount be kept in FDR in her name in UCO Bank, Patiala House court Branch, New Delhi in following manner:
1. Fixed deposit in respect of 10% for a period of one year.
2. Fixed deposit in respect of 10% for a period of two years.
3. Fixed deposit in respect of 10% for a period of three years.
4. Fixed deposit in respect of 10% for a period of four years.
5. Fixed deposit in respect of 10% for a period of five years.
6. Fixed deposit in respect of 10% for a period of six years.12
7. Fixed deposit in respect of 10% for a period of seven years.
8. Fixed deposit in respect of 10% for a period of eight years.
9. Fixed deposit in respect of 10% for a period of nine years.
23.The cheque be deposited in UCO Bank, Patiala House Court Branch in the name of UCO Bank, A/c Smt. Sayara Khatoon, A/c Shahida, A/c Afsana, A/c Shamima, A/c Shakila, A/c Zafar Hussain, A/c Shabana, A/c Chandini, A/c Najjum.
24.The interest on the fixed deposits shall be paid monthly by automatic credit in the saving accounts of the claimant/beneficiary.
25.Original fixed deposit receipt shall be retained by the Bank in safe custody. However, the original pass book shall be given to the claimant along with the photocopy of the FDR. Upon the expiry of period of FDR the bank shall automatically credit the maturity amount in the saving account of beneficiary.
26.The original fixed deposit receipt shall be handed over to the claimant at the end of the fixed deposit period and shall automatically credit the maturity amount in the savings account of the beneficiary.
27.No cheque book shall be issued to the claimant without permission of the court. No loan, advance or withdrawal shall be allowed on the fixed deposit without permission of the court.
28.Withdrawal from the aforesaid accounts shall be permitted to the 13 beneficiary after due verification and the Bank shall issue photo identity card to the beneficiary to facilitate identity.
29.Bank shall transfer Savings Account to any other branch according to his convenience.
30.The beneficiary shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit to Senior Manager of UCO Bank, Patiala House Court Branch, New Delhi.
31. Nazir to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself.
32.The owner/respondent no. 2 shall deposit the award amount directly in the bank account of the claimants at UCO Bank, Patiala House Court, New Delhi within 30 days of the passing of the award failing which he is liable to pay interest at the rate of 12% per annum for the period of delay.
33.The petitioners shall file two sets of photographs along with their specimen signatures, out of which one set to be sent to the Nodal Officer, UCO Bank, Patiala House Court Complex, New Delhi along with copy of the award by Nazir and the second set be retained to the court for further reference. The photographs be stamped and sent to the bank. The petitioners shall also file the proof of residence and furnish the details of the bank account with the Nazir within a week. The petitioners shall file 14 their complete address as well as address of their counsel for sending the notice of deposit of the award amount.
34.The Owner/respondent no. 2 shall deposit the award amount alongwith interest upto the date of notice of deposit to the claimants with a copy to their counsel and the compliance report shall be filed in the court alongwith proof of deposit of award amount, the notice of deposit and the calculation of interest on 18.3.2013.
APPORTIONMENT OF LIABILITY:
35.The present claim petition arises out of Detailed Accident Report filed by police in case FIR no. 236/2011 under Section 279/337 IPC PS Tilak Marg. As per DAR the vehicle was being found bearing temporary registration number DL1TW9358 and as per DAR the notice under Section 133 was given to owner of vehicle Sh. Manjit Singh who in pursuance of said notice produced the vehicle and driver of vehicle Sh.Sandeep Kukreja who is son of owner. On 27.8.2012 the owner filed an application to summon the record from RTO office however, my Ld. Predecessor was pleased to dismiss the said application as in the final report it was stated that notice under Section 133 Motor Vehicle was given to applicant/ owner Sh. Manjeet Singh who had produced the offending vehicle and seizure memo of the offending vehicle also bears the signatures of applicant/ owner and during investigation the owner has 15 not produced any document to show that he was not the owner of offending vehicle. Vide order dated 12.9.2012 my Ld. Predecessor was pleased to direct the MLO, Mall Road, Delhi to produce the registration certificate of vehicle no. DL1TW9358 and on 22.9.2012 the report no. MLO/NZ/12/950 dated 21.9.2012 was filed by the Record Clerk, RTO Mall Road stating that the vehicle no. DL1TW8358 bears a temporary registration certificate issued by the said office in the name of Sh. Vinod Kumar, R/o 142/KH, Shankracharya1, Bagpat, UP and the same was registered on 15.10.2008 and was valid till 14.11.2008 and the same was of make Ford Endour, 2008 Chasis no. 20015, Engine no. 20015. In the report dated 21.9.2012 it was further stated that records of temporary registration number are retained up to one year and thereafter the same are weeded out and in this case also the same has been weeded out. Thereafter IO ASI Amarbir Singh filed one address verification report on 4.12.2012 stating that he had gone to Bagpat, UP for verification of address of alleged owner of offending vehicle i.e. Sh. Vinod Kumar R/o 142/KH, Shankracharya1, Baghpat, UP and on enquiries it was found that no such address exists in Baghpat. In case Sh. Manjeet Singh pleads that he is not the owner of vehicle in question then it was for him to explain as to how he came in possession of the vehicle and how in pursuance of notice under Section 133 Motor Vehicle Act he produced 16 the vehicle before the police authorities and also produced the driver of vehicle who is his son. If the grievance of Sh. Manjeet Singh is that he is not the owner of offending vehicle then it was for him to prove the same. It is to be noted that the temporary registration of the offending vehicle was valid only for one month i.e. from 15.10.2008 to 14.11.2008. sh. Manjeet Singh has not proved that after expiry of period of temporary registration of the offending vehicle on 14.11.2008 he applied to the appropriate registering authority for obtaining the permanent registration number. As after 14.11.2008 permanent registration number was not obtained in respect of the offending vehicle hence, after efflux of period of temporary registration the offending vehicle was being plied as an un registered vehicle and Sh. Manjeet Singh being in possession of said un registered vehicle shall be deemed to be the owner of vehicle. Sh. Manjeet Singh has also not led any evidence to prove that he had not handed over the offending vehicle to police in pursuance of notice under Section 133 Motor Vehicle Act and that he is not owner of offending vehicle.
36. In the circumstances, respondent no. 1 being the driver, respondent no. 2 owner are held jointly and severally liable. Respondent No. 2 being the owner is directed to deposit the award amount within 30 days with interest @ 9% per annum from the date of filing of petitioner till its 17 realisation. In case of any delay, it is liable to pay interest @ 12% per annum for the period of delay. Nazir to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself.
DIRECTIONS TO REGISTERING AUTHORITY
37.Section 43 of the Motor Vehicle Act 1988 empowers the registering authorities to temporarily register a vehicle. Sub Section 2 of Section 43 Motor Vehicle Act, 1988 provides that the temporary registration made under Section 43(1) shall be valid only for a period not exceeding one month unless the time is extended as provided in the proviso to the said subsection. The Licencing Authority in its report no. MLO/NZ/12/950 dated 21.9.2012 had mentioned that the temporary registration number of the vehicle was valid from 15.10.2008 to 14.11.2008 and the records in respect of temporary registration number are retained for a period of one year and thereafter they are weeded out. This procedure of Registering Authorities in weeding out the records of temporary registered vehicles after a period of one year without verifying whether the said vehicle has taken a permanent certificate or not, is not proper and will perpetuate the tendency of getting temporary registration numbers and thereafter illegal trade in the such vehicles. As in the present case also the owner Sh. 18 Manjit Kumar has tried to take advantage of the fact that the temporary registration records of the vehicle have been weeded out and he continued using the vehicle since the date of its temporary registration i.e. 15.10.2008 without taking permanent registration certificate till the time the vehicle was seized by police. In such cases where the Registering Authority has issued temporary registration number valid for a period of one month and on expiry of the said period of one month or the extended period of temporary registration, the registering authority should immediately initiate process for cancellation of temporary registration certificate granted under Section 43(1) of the Motor Vehicle Act and initiate process for seizure of vehicle and prosecution under Section 39/192 of Motor Vehicle Act, 1988. The records of vehicles which had temporary registration number should be retained by Registering Authorities till the time the vehicle acquires a permanent registration number otherwise it would be impossible to know that which documents were submitted by the person obtaining the temporary registration number and whether the said documents were genuine or not, as in the present case also it has been found that the vehicle was registered temporarily in the name of Sh. Vinod Kumar and the address as furnished by him was not found to be existing and it has been reported by the Registering Authority that the records have been weeded out. 19
38. Copy of this judgment be sent to the Commissioner, Transport, Government of NCT of Delhi for necessary action.
An attested copy of award be given to the parties(free of cost). Announced in the open court.
On 6.2.2013 (Harish Dudani)
Judge: MACT1 : New Delhi