Delhi District Court
)Sh. Bablu Sahni S/O Sh. Mental Sahni vs ) Sh. Nand Kishore S/O Vidhachal ... on 31 May, 2012
1
IN THE COURT OF SH. D.K. MALHOTRA, ADDL. DISTRICT & SESSIONS
JUDGE CUM PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNAL,
ROHINI COURTS, DELHI
(MACT No. 227/11)
1)Sh. Bablu Sahni S/o Sh. Mental Sahni
2)Baby Khushbu D/o Sh. Bablu Sahni
Both resident of Vill. & PO Parna,
PS Chanpura, Distt. Begu Sarai,
Bihar. --------------Petitioners
Versus
1) Sh. Nand Kishore S/o Vidhachal Parjabati
R/o Bardka Sisvar Kalan, Distt. Ballia.
2) Suresh Kumar S/o Rameshwar Dutt,
R/o H. No.10, VPO Chopal Mohalla,
Badali, North-West, Delhi.
3) HDFC Ergo General Insurance Co. Ltd.
DD Plot no.C-9, 3rd Floor, Perl Best,
Netaji Subhash Palace, Pitampura, Delhi - 34. -----------Respondents
Date of institution------20.07.2011
Date of decision---------31.05.2012
(APPLICATION U/S 166 AND 140 OF MOTOR VEHICLES ACT
FOR GRANT OF COMPENSATION)
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JUDGMENT:-
As per averments made in the petition, on 03.06.2011 at about 2.08pm Sh. Deepak Sahni (hereinafter referred to as deceased) aged about 07 years alongwith his parents were going in TSR when the TSR reached Badli Nahar, near 2 Khera Kalan Village, Samaipur Badli, Outer District, Delhi. When a Eicher Tempo bearing no. DL-1LC-2470 came at a very high speed driven most rashly and negligently and hit the TSR as a result of which the all the occupants of the TSR were grievously injured where deceased died due to the fatal injuries received in the accident. Thereafter, a criminal case was registered against respondent no.1 vide FIR No.215/11 u/s 279/337/304AIPC in police station Samaipur Badli, Delhi. It is further averred that accident took place due to rash and negligent driving on the part of the respondent no.1.
Petitioners being Legal heirs of the deceased alleged that the deceased was aged about 07 years and was enjoying excellent health. It is further averred that deceased was a brilliant student. They claimed sum of Rs.50lakhs as compensation from respondents being driver, owner and insurance company of the offending vehicle.
Respondents no. 1 and 2 have filed a joint written statement denying the averments averred in the plaint and stated that alleged accident had not caused due to the fault and negligence of respondent no.1. They further averred that respondent no.1 was having a valid driving licence and offending vehicle was duly insured with respondent no.3. Respondent no.3/Insurance Company has filed the written statement admitting that the offending vehicle was insured with it but tried to avoid its liability on various technical grounds.
On the basis of pleadings of the parties, following issues were framed on 16.09.2011 by my ld. Predecessor:
1). Whether Sh. Deepak Sahni S/o Sh. Bablu Sahni died due to road accident on 03.06.2011 at about 2.08pm at Badli Nahar, near Khera Kalan Village, Samaipur Badli, Outer District, Delhi, within the jurisdiction of PS: Samaipur, Badli, due to rash and negligent driving of Eicher Tempo bearing no. DL-1IC-2470 being driven by respondent no.1 ? OPP 3
2). Whether the petitioners are entitled to compensation, if so, to what an extent and from which of the respondents? OPP
3). Relief.
Vide order dated 02.02.2012 petitioner / eye witness Sh. Babloo Sahani as PW2 was examined in connected case no. M.No.3H/12, whose statement was directed to be read in all the cases, who proved on record photocopy of his election I-card as Ex.PW1/1, photocopy of election I-card of his wife Smt. Phula Devi as Ex.PW1/2, residence and age proof of deceased as Ex.PW1/3. Further petitioner / PW2 Bablu Sahni being travelling in the same TSR, narrated about the factum of the accident, the way it has taken place.
Vide order dated 18.02.2012 counsel for the insurance company has closed his evidence stating that after verification it is found that there is no breach of permit and the driving licence of the respondent no.1 was found to be O.K.. Hence, the matter was fixed for final arguments.
I have heard counsel for the parties and gone through the record of the case. My decision on the above mentioned issues is as under;
ISSUE NO. 1:-
The principles to be followed in the case of motor accident claim have been laid down by the Hon'ble High Court of Guwahati in case cited as Renu Bala Paul and Ors. vs. Bani Chakraborty and Ors. 1999 ACJ 634 by Hon'ble Guahati High Court that:
"In deciding a matter Tribunal should bear in mind the caution struck by the Apex Court that a claim before the Motor Accidents Claims Tribunal is neither a criminal case nor a civil case. In a criminal case in order to have conviction, the matter is to be proved beyond reasonable doubt and in a civil case the matter is to be decided on the basis of preponderance of evidence, but in a claim before the Motor Accidents Claims Tribunal, the 4 standard of proof is much below than what is required in a criminal case as well as in a civil case. No doubt before the Tribunal, there must be some material on the basis of which the Tribunal can arrive or decide things necessary to be decided for awarding compensation. But the Tribunal is not expected to take or to adopt the nicety of a civil or of a criminal case. After all, it is a summary inquiry and this is a legislation for the welfare of the society.
N.K.V. Bros (P) Ltd. vs. M.Karumai Ammal & Ors. (1980) 3 SCC 475, Hon'ble Supreme Court has observed as under:-
"In Road accidents are one of the top killers in our country, especially when truck and bus drivers operate nocturnally. This proverbial recklessness often persuades the courts, as has been observed by us earlier in other cases, to draw an initial presumption in several cases based on the doctrine of res ipsa loquitur. Accidents Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or 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. We are emphasizing this aspect because we are often distressed by transport operators getting away with it thanks to judicial laxity, despite the fact that they do not exercise sufficient disciplinary control over the drivers in the matter careful driving. The heavy economic impact of culpable driving of public transport must bring owner and driver to their responsibility to their "neighbour".
Hence the standard of proof though lesser than civil and criminal case, but some evidence is required to brought on record to show that the accident was caused due to rash and negligent driving of offending vehicle. The petitioner / eye witness has been examined as PW-2. He, in his affidavit in evidence has disclosed how and in which manner accident took place and entirely blamed driver of offending Tempo in causing the accident. Nothing adverse could come in the cross- examination of the witness to discard his version. It is not the case of the respondent no.1 that he knew either the deceased or the eye witness before hand or that IO has any grudge against him, though he is facing prosecution. There is nothing on record 5 to show that respondent no.1 had lodged any complaint to any higher authority regarding alleged false implication in criminal case. There is also no evidence on record to point out that respondent no.1 had any enmity with deceased or his family members or eye witnesses or investigation officer to create possibility of false implication of respondent no.1 in criminal case. Respondent no.1 & 2 have not came forward to cross-examine the eye witness PW2 nor led their own evidence and had chosen to remain out of the court from which it can be presumed that they had no defence and are indirectly admitting all the allegations. Both eye witness and the criminal case record have corroborated the story of the accident having being caused by the driver of the offending vehicle by driving the vehicle in a rash and negligent manner. In view of the above discussions it is crystal clear that accident took place due to the sole negligence on the part of driver by driving the offending vehicle in a rash and negligent manner and there was no negligence on the part of the deceased. In view of the above discussions, this issue is decided in favour of petitioners and against the respondents.
ISSUE NO. 2:-
Petitioners are entitled to both pecuniary and non pecuniary damages. As per document Ex.PW 1/3 issued by Principal of the Govt. School, Parna Begusarai, Bihar, deceased Deepak Kumar son of Babloo Sahni and Phoola Devi, was student of that school and his date of birth was 11.04.2004.
As per the latest judgment of Hon'ble Justice J. R. Midha of Hon'ble Delhi High Court titled National Insurance Co. Ltd Vs Gaje Singh & Ors, in MAC. App. 311/2005 following the judgment of Hon'ble Supreme Court in case MCD Vs Association of Victims of Uphaar Tragedy reported in AIR 2012 SC 100, it has been held that :
(v) CA no.6748 of 2004 is allowed in part and the judgment of the High Court in modified as under:6
(a) The compensation awarded by the High Court in the case of death is reduced from Rs.18lacs to Rs.10lacs (in the case of those aged more than 20years) and Rs.15lacs to Rs.7.5lacs (in the case of those aged 20 years and less). The said sum is payable to legal representatives of the deceased to be determined by a brief and summary enquiry by the Registrar General (or nominee of learned Chief Justice / Acting Chief Justice of the Delhi High Court).
(b) The compensation of Rs. One Lakh awarded by the High Court in the case of each of the 103 injured persons is affirmed.
(c) The interest awarded from the date of the writ petition on the aforesaid sums at the rate of 9% per annum is affirmed.
(d) If the legal representatives of any deceased victim are not satisfied with the compensation awarded, they are permitted to file an application for compensation with supporting documentary proof (to show the age and the income), before the Registrar General, Delhi High Court. If such an application if filed within three months, it shall not be rejected on the ground of delay. The Registrar General or such other Member of Higher Judiciary nominated by the learned Chief Justice / Acting Chief Justice of the High Court shall decide those applications in accordance with paras above and place the matter before the Division Bench of the Delhi High Court for consequential formal orders determining the final compensation payable to them."
In MCD Vs Association of Victims of Uphaar Tragedy reported in AIR 2012 SC 100, the Supreme Court has awarded Rs.10 lakhs to the victims aged more than 20 years and Rs.7.5 lakhs to the victims aged less than 20years. In that case, the multiplier of 15 was applied and 1/3rd was deducted towards the personal expenses which means that the Court has assumed the income of the victims aged more than 20years to be Rs.8,333/- per month and that of victims aged less than 20years to be Rs.6,249/- per month. The calculation of the compensation would be as under:-
For victims aged more than 20 years:
(Rs.8,333/- less 1/3rd ) x12x15 = Rs.10lakhs 7 For victims aged less than 20years:-
(Rs.6249/- less 1/3rd ) x 15= Rs.7.5lakhs It is relevant to note that the Uphaar Tragedy took place on 13th June, 1997 and the minimum wages at the relevant time ranged from Rs.1677/- for unskilled workers to Rs.2437/- for graduates. It is thus clear that although there was no proof of the income of the victims, the Supreme Court did not find it proper to apply the minimum wages.
In United India Insurance Co. Vs Kanwar Lal, MAC. APP. No.385/2007 decided on 27th April, 2012, this court following the judgment of the Supreme Court in MCD Vs Association of Victims of Uphaar Tragedy reported in AIR 2012 SC 100, awarded Rs.10lakhs in respect of the death of a 18years old child. The finding of this Court are reproduced hereunder:-
"10. Following the judgment of the Supreme Court in Municipal Corporation of Delhi Vs Association of Victims of Uphaar Tragedy (Supra), this court assumes the income of the deceased to be Rs.10,800/- per month considering that the deceased was a student of 12 th standard in a reputed school of Delhi and was ambitious to become MBA/CA., his brother is doing engineering course and his father is working as a Superintendent in Central Excise office. The deceased was unmarried and aged 18 years at the time of the accident. The parents of the deceased were aged 37 and 44 years respectively at the time of the accident. As per the judgment of the Supreme Court in Sarla Verma Vs Delhi Transport Corporation, (2009) 6 SCC 121, the appropriate multiplier according to the age of the mother is 15 and the appropriate deduction towards personal expenses is ½.
Deducting ½ towards personal expenses and applying the multiplier of 15, the loss of dependency is computed to be Rs.9,72,000/-. Rs.10,000/- is awarded towards loss of love and affection, Rs.10,000/- towards loss of estate and Rs.8,000/- towards funeral expenses. The total compensation is computed to be Rs.10,00,000/-. Since the driver of the offending vehicle was holding a fake driving licence, the appellant is 8 entitled to recovery rights against the owner of the offending vehicle after making the payment of the award amount to the claimants."
Aforesaid judgments are squarely applicable to the present case, hence following the aforesaid judgments, wherein the income of deceased was assumed as Rs.10,800/- per month but since in the present case the age of the deceased was only aged about 7 years on the date of accident, so I assume the income of deceased as Rs.10,000/- per month only.
As already discussed above, as per document Ex.PW1/3 the age of the deceased was approximately 07 years at the time of his death. Hence, in view of the judgment of Hon'ble Supreme Court given in Pushpa & Others Vs National Insurance Co. Ltd. & Another reported in 2011 ACJ 2140, multiplier of 16 has to be applied upon the income of the deceased, as per age of father of deceased since mother of the deceased has already expired.
Deceased had left behind two dependents i. e. his father and sister. Hon'ble Supreme Court in Sarla Verma vs. DTC 2009 (6) SCALE 129 has held that father is generally not treated as dependent upon the son, accordingly, the deduction of one half from income of deceased has to be made upon his personal expenses. Accordingly, after deducting ½ of the amount from monthly income of Rs.10,000/-, the net amount of dependency per month comes to Rs.5000/-. Accordingly, in this case, loss of dependency is assessed is assessed at Rs.9,60,096/- (5000x12x16). Hence, the petitioners are only entitled to Rs. 9,60,000/- (in round figure) on account of loss of dependency.
Petitioners have averred that they have spent substantiated amount over the last rites and rituals of the deceased as hefty and huge amount is being spent by Hindus over the last rites and rituals of the deceased. However, petitioners have not brought on record any document regarding the same. It is a judicial noticeable fact that normally some expenses are incurred upon cremation, Chotha 9 or Theharvin ceremonies etc. Hence, I deem it proper to grant lump sum amount of Rs.25,000/- as funeral charges.
Petitioners are Hindu by religion. Petitioner no.1 has lost his only son besides his wife whereas petitioner no.2 has lost her only brother besides her mother. Petitioner no.1 Bablu Sahni is a Hindu by religion and as per Hindu philosophy he will not achieve Nirwana as his only son has been lost and in Hindus, one who could put funeral fire to dead body of a Hindu, is the son only. Also according to Hindu philosophy all his pujas and other important religious ceremonies will not bring him credit as his only son has lost. Baby Khushbu has lost her only brother and she will have to live with the pain (tease) through out her life that there is nobody related to her through blood, to whom she can put Tika on Bhai Duj and and on whose hand she can tie sisterly knot of Rakhi on Raksha Bandhan festival. On every Raksha Bandhan and on every Bhai Duj / Tikka, till she lives in this world, she will have to live with this pain (tease) that she is brotherless due to the accident in question. There is nobody for petitioner no.2 to whom she can look upto in case of emergency. She will have to live with this pain (tease) through out her life every time, when all girls in the fraternity and Mohalla will celebrate the festivities of Raksha Bandhan, Bhai Duj and other festivals with their families including their brothers and sisters. She will be alone having no company except the lonely father by her side at the time of celebrations and might have to listen many Tanas (taunts) of being unlucky to the family.
Petitioner no.1 Bablu Sahni will have to live with this feeling that there is nobody to look after him during his old age to whom he can leave his heritage and on whose acts he can proudly tell amongst his friends and relatives that "Mere Bete Ne Ye Kiya, Mere Bete Ne Wo Kiya" and to boost about the achievements and to weep with the failure of his only son. Besides being deprived of his only son whenever he would have been required by him in moments of his life, whenever and where ever the help of a son would have been required not only in day to day chores 10 and important functions and at the time of his journey to the other world for the merger of his soul with almighty. He cannot forget that now there is no one left in his family who could help him in the performance of Riti-Riwaz (customs) at the time of marriage of his only daughter and the help of his only son, who could have provided the same at time visits to the family of in-laws of her only daughter at the time of each and every festivals as his only son was expired due to accident caused by rash and negligent driving by the driver of the offending vehicle. Since, such a collassal loss cannot be compensated even in millions and billions of rupees, I award a token sum of Rs.5,00,000/- towards Loss of love and affection, loss of company, guidance and encouragement, trauma and loss of other discomfort. Further petitioners are granted a sum of Rs.2,00,000/- towards loss of care, attention, expenses to be born for the performance of gratuitous services as per the latest judgment of Justice G. P. Mittal. Petitioners are also entitled to a sum of Rs.50,000/- (Rs.25,000/- each to both the petitioners), towards loss of Estate.
Respondent no.3 Insurance Company has not brought on record any evidence to point out that respondent no.1 was not having any valid driving license or permit and fitness of the offending Tempo was improper as well as failed to bring on record any evidence to point out that it is not liable to pay compensation amount as assessed by the court or any term or condition of the insurance policy was breached by the insured or it has any limited liability. In fact insurance company has admitted that after verification it is found that there is no breach of permit and the driving licence of the respondent no.1 was found to be O.K. This fact also shows that respondent no.3 Insurance Company has no defence, accordingly in such circumstances and keeping in view the existence of valid insurance policy, respondent no. 3 alone becomes entitled to pay entire compensation amount.
After considering the merits of the case, petitioners are entitled to get the following total compensation from the respondent no. 3 insurance company :
11Pecuniary Damages
a) Funeral charges =====================Rs. 25,000/-
b) Loss of dependency===================Rs. 9,60,000/-
Non Pecuniary Damages
a) Loss of love and affection etc.============Rs. 5,00,000/-
b) Loss of Care & Attention================ Rs. 2,00,000/-
b) Loss of Estate ======================= Rs. 50,000/-
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Total Rs.17,35,000/-
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Petitioners shall be entitled to interest at the rate of 12% p.a on this amount from 20.07.2011 till realization. This issue is decided accordingly in favour of petitioners and against the respondents.
ISSUE NO. 3 (Relief):-
On the basis of findings given above, present petition is disposed off and an award is passed. Respondent no. 3 insurance company is directed to pay within 30 days a sum of Rs.17,35,000/- to the petitioners along with interest at the rate of 12% p.a. as per the judgment of State Bank of Madhya Pradesh Vs Diwan Chandra Gupta, reported in 1989 ACJ 320, from 20.07.2011 till this amount is fully paid, if payment is not made within 30 days interest @ 18% will be paid by the Insurance Company.
It is ordered that entire award amount alongwith entire accrued interest on total principle amount be deposited in the joint names of petitioner no.1 & 2 in the form of FDR with State Bank of India, Rohini District Courts, Delhi, with a liberty 12 to withdraw monthly interest through savings bank account. It is made clear that FDR shall not be encashed without permission of the court. No loan or advance shall be given on the FDR except with prior permission of court. Respondent no.3 insurance company is directed to prepare the separate cheques of the compensation amount as per above order.
Insurance company is directed to make a payment of Rs.70,000/-+ Rs. 5000/- out of pocket expenses by way of cheque in favour of counsel for the petitioner Sh. U. C. Rai, Adv.-Enrl. no. D-146F/87, as per judgment of Hon'ble High Court in case titled Sat Prakash Vs Jagdish reported in II (2010) ACC 194 passed by justice J.R. Midha.
Respondent no.3 insurance company is directed to prepare the separate cheques as per above order. Copy of this judgment be given to petitioners and counsel for respondent no.3 insurance company for compliance. File be consigned to record room.
Announced in the open (D.K. MALHOTRA)
Court on 31.05.2012 JUDGE, MACT (OUTER-II)
DELHI