Delhi District Court
Smt. Sangeeta (Aged 33 Years) vs Sh. Shamshad Ali @ Mujjasim on 16 January, 2012
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IN THE COURT OF MS.POONAM CHAUDHARY
JUDGE:MOTOR ACCIDENT CLAIMS TRIBUNAL 1 NEW DELHI
SUIT NO.: 277/11
DATE OF INSTITUTION: 26.07.2008
1. Smt. Sangeeta (Aged 33 years)
W/o Late Sh. Narender Singh
2. Sh. Vikas Kumar (Aged 14 years)
S/o Late Sh. Narender Singh
3. Ms. Komal (Aged 10 years)
D/o Late Sh. Narender Singh
4. Sh. Vishal Kumar (Aged 5 years)
S/o Late Sh. Narender Singh
Permanent R/o R253, Sangam Park,
Khora Colony, PS Indra Puram, Gaziabad(U. P.)
(Petitioners no. 2 to 4 are minors being represented through
petitioner no. 1 being his mother and natural guardian).
........... Petitioners
Versus
1. Sh. Shamshad Ali @ Mujjasim
S/o Sh. Mustafa Hussain,
R/o Village Harijona, PS Dimdoli,
District Jyotibo, Phule Nagar, UP.
2. Sh. Mohd. Mohsin,
S/o Sh. Budha,
R/o Village Nili Kheri, Amroha,
Jotibarao, Phule Nagar244221, Uttar Pardesh
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3. ICICI LOMBARD Motor Insurance Company Ltd.
Hall2, 3 Floor, Parasavnath PlazaII,
rd
Plot NO. 3, Neelgiri Commercial Centre,
Delhi Moradabad Road, HO Moradabad,
Uttar Pardesh244001. ..........Respondents
Final Arguments heard on : 09.01.2012 Award reserved for : 16.01.2012 Date of Award : 16.01.2012 AWARD
1. Vide this judgment cum award I proceed to decide the petition U/s 166 and 140 of Motor Vehicle Act, 1988, as amended up to date (hereinafter referred to as the Act) filed by the petitioner, for grant of compensation in a road accident.
2. Briefly stated the facts giving rise to the petition are that on 09.03.2008 at about 4.00 PM the deceased was riding on his bicycle as per traffic rules and regulations when he reached Kasturba Gandhi Marg, Tolstoy crossing, Connaught Place, New Delhi a Mini bus bearing no. UP21G9784 came being driven by respondent no. 1 in a rash and negligent manner at a high speed and hit the deceased from back side. It is further stated that due to impact of the accident the deceased fell down from his bicycle and become unconscious and was removed to Dr. RML hospital where despite treatment he succumbed to the injuries on 3 14.03.2008. It is further stated that the postmortem of the deceased was conducted at Lady Harding Medical College. It is also stated that the accident was caused due to rash and negligent driving of offending vehicle by respondent no. 1.
3. It is also alleged that the deceased was 35 years of age at the time of accident and he was doing a private job of Security Guard at Broadways, Security and Detective Pvt. Ltd and was drawing salary of Rs. 6,000/ per month. It is also stated that the deceased was getting annual increments and the salary of deceased would have increased much more had he been alive. It is further alleged that the deceased left behind his wife petitioner no. 1 and minor petitioners no. 2 to 4 who were totally dependent upon him. It is also alleged that petitioners have no other source of income and studies of minor children have been disturbed due to his untimely death. It is also alleged that the offending vehicle was being driven under the control and employment of respondent no. 2 being the owner of the same and the vehicle was insured with respondent no.3, thus, all the respondents were jointly and severally liable to pay compensation.
4. It is prayed that Rs. 25,00,000/(Rs. Twenty Five Lacs only) be awarded as compensation to petitioners with interest @ 12% per annum from the date of filing of petition till realization and interim award be also passed 4 under Section 140 of the Act.
5. Respondents no. 1 and 2 did not contest the petition despite service and were proceeded exparte.
6. Respondent no. 3 filed written statement contesting the petition on various grounds inter alia that the petition did not disclose any cause of action against respondent no. 1. It was submitted that the petitioners were not the legal heirs of deceased. It was admitted that the vehicle no. UP21G9784 was insured as a passenger carrying vehicle in the name of respondent no. 2 with respondent no. 3 on the date of alleged accident but it was submitted that the liability of insurance company was as per the terms and conditions of the policy. It was denied that the deceased was 35 years of age and the sole bread earned of the family and was earning Rs. 4,000/ per month. It was also denied that accident occurred on 09.03.2008 in the manner as alleged by petitioners caused by alleged offending vehicle bearing no. UP21G9784 in front of Central Point Hotel, Tolstoy Marg, New Delhi. It was further denied that the alleged offending vehicle hit the deceased from back side while being driven rashly and negligently or that deceased sustained fatal injuries in the alleged accident. It was further stated that infact the alleged offending vehicle was not involved in the accident and a false case had been registered against the driver of the said vehicle to extract compensation. It was 5 denied that respondent n o. 3 was jointly and severally liable to pay compensation to the petitioners.
7. In support of their claim petition the petitioners examined PW1 Smt. Sangeeta, wife of deceased, she filed her evidence in examination in chief by affidavit Ex. PW1/A reiterating therein the contents of petition. She also proved the certified copies of the criminal record Ex. PW1/1 to Ex. PW1/5 i.e. the charge sheet filed against respondent n o. 1 Ex. PW1/1, criminal case lodged against respondent no. 1 vide FIR no. 112/08 under Section 279/337 IPC at PS Connaught Place which is Ex. PW1/3, Site plan Ex. PW1/3, postmortem report of the deceased Ex. PW1/4 according to which cause of death was cranio cerebral damage consequent upon blunt force surface impact to head, all the injuries being antimortam in nature, identity card of deceased Ex. PW1/5, voter's identity card of PW1 Ex. PW1/6 and voter's identity card of deceased Ex. PW1/7, photocopy of progress report cards of the petitioners no. 2 to 4 which are Mark A, B and C.
8. In her crossexamination she stated that she was illiterate and was not an eye witness to the accident. She also stated that Rs. 20,000/ were spent on medicines, treatment charges of deceased when he was hospitalised for about 4 days but she did not have a receipt for the expenditure. She also stated that she had filed copy of the progress report cards of her 6 children to show that they were studying. She further stated that she did not have ration card. She also stated that the deceased was educated till th 8 standard but she did not have documentary proof to show his qualifications neither she had any documentary proof of income of deceased. She denied that the deceased was not working anywhere at the time of accident. She also denied that the deceased was not treated in RML hospital and further denied that she had not spent Rs. 30,000/ to 40,000/ on the treatment of deceased.
9. Petitioners also examined PW2 Sh. Vinod Sharma Field Supervisor from Broadways Security and Detective Private Ltd. who stated that he was authorized by the company to depose in this case vide authority letter Ex.PW2/1. He also proved the salary certificate of deceased Ex.PW2/2. His testimony has gone unchallenged.
10. Petitioner also examined a eyewitness Sh. Meghraj as PW3 who stated tendered his evidence in examinationinchief by affidavit stating therein that on 09.03.2002 at about 4.00 PM he was going towards bus stop and when he reached Tolstoy Marg crossing, Connaught Place, New Delhi he saw one person going on a bicycle and in the meantime a mini bus bearing no. UP21G9784 being driven in a rash and negligent manner hit against the cyclist from the backside due to which he fell down and became unconscious. He also stated that deceased was removed to 7 hospital by PCR Van. He further stated that accident was caused due to rash and negligent driving of respondent no. 1 who was driving the offending vehicle no. UP21G9784.
11. In his crossexamination he stated that he received information of case from one person related to petitioner. He further stated that he signed the affidavit in court premises and it was attested in his presence. He also stated that at the time of accident he was going to Tilak Bridge Railway station to board a train. He denied that accident was caused due to the negligence of the cyclist. He also stated that at the time of accident he was employed at Transport Bhawan near Parliament Circle. He stated that he saw the accident from the front side. He also stated that he did not inform the police neither police officials recorded his statement. He also stated that police official did not take him to the spot. He further stated that he was not present in the vehicle in which deceased was removed to hospital but he went to hospital on a motorcycle of another person who was also present at the spot. He further stated that deceased was not known to him. He denied that he was deposing falsely as deceased was known to him. He also stated that he give his address to the relatives of the deceased who came to the hospital but he could not tell the name of the relatives. The petitioners thereafter closed their evidence.
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12.On the other hand Respondents no. 1 and 2 did not appear despite service and were proceeded exparte.
13. Respondent no. 3 examined one witness Sh. Vivek Yadav Manager (Legal), Insurance company who proved that Insurance policy no. 3004/A/53176457/00000 for the vehicle bearing no. UP21G9712 was valid from 27.12.2007 to 26.12.2008 in the name Mohd Mohsin as Ex.R3W1/1. He also stated that their counsel had sent a notice to the driver and owner U/o 12 rule 8 CPC to produce the driving licence, policy and permit of the insured vehicle. The copy of the notice was proved as Ex.R3W1/2 and Ex.R3W1/3, its postal receipts were proved Ex.R3W1/4 and Ex.R3W1/5, the AD card was proved as Ex.R3W1/6. He further stated that vehicle was insured under the category of passenger carrying vehicle and was being used by U.P Congress Committee for carrying passengers from U.P to Delhi. He also placed on record a letter received from U.P Congress Committee Ex.R3W1/7. He stated that permit of the insured vehicle was not seized by the police neither the owner produced the same. He further stated that insured had committed breach of terms and conditions of the policy as he was using the vehicle without permit in contravention of the Central Motor Vehicle Rules, as such respondent no. 3 was not liable. Respondents thereafter closed their evidence.
14. I have heard the Ld. counsel for the parties and perused the record. 9
15. As the petition has been filed U/s 166 Motor Vehicle Act it was incumbent upon the petitioner to prove that the accident was caused due to the rash and negligent driving of the vehicle by respondent no. 1.
16. As regards negligence of the driver it has been held in 2009 ACJ 289 National Insurance Ltd. Vs. Pushpa Rana and Ors as follows:
"Negligence evidence admissibility of document certified copy of criminal court, such as FIR recovery memo and mechanical inspection report of vehicle are documents of sufficient prove to reach the conclusion that driver was negligent. Proceedings under Motor Vehicles Act are not akin to proceedings in a civil and hence strict rules of evidence are not required to be followed in this regard".
17. Ld. Counsel for respondent no. 3 contended that PW3 had witnessed the accident, he would have informed the police but he stated in his crossexamination that he did not inform the police neither police officials recorded his statement. Ld. Counsel for respondent no. 3 also stated that PW3 stated that he had not accompanied the deceased to the hospital therefore his presence at the spot at the time of accident is doubtful. In am in agreement of the contentions of Ld. Counsel for respondent no. 3 as in case PW3 witnessed the accident he would have informed the police and police would have taken him for preparation of site plan and recorded his statement.
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18.To establish the negligence of respondent no. 1, petitioner proved the certified copies of the chargesheet filed against respondent no. 1 U/s 279/337/304A IPC and the FIR lodged against respondent no. 1 vide no 112/08 U/s 279/337 IPC registered at PS Connaught Place. Petitioner also proved the postmortem report of the deceased according to which death was due to road traffic accident and the cause of death was due to Cranio Cerebral damage consequent to the blunt force impact to the head. Moreover, no other version of the accident was brought on record by respondent no. 1 and 2. Thus, above documents are sufficient proof to reach the conclusion that the deceased sustained fatal injuries in the accident caused due to the rash and negligent driving of respondent no.1.
19. As regards petitioners being the legal heirs of the deceased petitioner stated that deceased was her husband and petitioner no. 2 to 4 were their children. In her crossexamination she stated that she did not have ration card. Though the respondent no. 3 challenged the testimony of petitioner as regards the fact that they were not the legal heirs of the deceased, no evidence to the contrary was brought on record by respondent no. 3. Moreover PW1 proved her voter's identity card wherein it is mentioned that she was the wife of Narender Singh, as such her relation with the deceased stands established. Therefore I hold that petitioners are the legal heirs of the deceased.
11COMPENSATION
20. As regards the quantum of compensation PW1 stated that deceased was 35 years of age at the time of accident and was earning Rs. 6,000/ per month. In her crossexamination she stated that deceased was th educated till 8 standard but she did not have the documentary proof of his qualification. She also stated that she had not filed any documentary proof of income of the deceased. However petitioner has examined the employer PW2 who proved the salary certificate of the deceased Ex.PW2/2 according to which he was drawing a salary of Rs. 3,516/ at the time of accident which may be rounded off Rs. 3,500/. The minimum wages for a skilled worker on the date of accident was Rs. 4,057/, thus the version of PW2 can be accepted as correct. The petitioner has not led the cogent evidence regarding future prospects of increase in income of deceased. However, as the income of deceased was almost at par with Minimum wages increase in minimum wages on inflation trends can be considered, as held in II (2008) ACC 770 National Insurance Company Ltd. Vs Kailash Devi is as follows: "Once the resort has been made to the Minimum Wages Act, therefore, the increase in the future wages under the Minimum Wages Act can certainly be taken into consideration. This court has already taken a view that the increase under 12 the Minimum Wage Act is based on the price index, inflation rate and other economic factors can not be treated at par wit the future income of a victim due to promotions, advancements in career, grant of increments and special grades, etc. Perusal of the Minimum Wages Act shows that in the past within a period of 10 years, the minimum wages almost get more than double;
for instance, the minimum wages for a skilled workman in the year 1980 were Rs. 320 and the same got increased to Rs. 1043/ in the year 1990, meaning thereby that there has been an increase of 225% from the year 1980*1990, therefore, it can be safely assumed that the income of the deceased would have doubled in the next 10 years. Applying the same criteria, the income of the deceased as assessed in the year 2001 would have been increased to Rs.
6200/ and taking the average of the same it would come to Rs. 4650/ per month".
21. Thus average income of the deceased after resorting to the increase on the basis of inflation trends comes to (Rs 3,500/ x 2) + (3,500) / 2 = Rs. 5,250/.
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22. As deceased was survived by 4 dependents 1/4 is to be deducted towards the personal expenses of deceased in view of judgment of Sarla Verma (Supra). After deduction of ¼ of Rs. 5,250/ the contribution of the deceased to his family would have been Rs. 3,937/. As per voter's identity card of deceased proved as Ex.PW1/7 he was around 35 years of 13 age at the time of accident. As such the multiplier applicable is of 16. Thus the loss of dependency comes to Rs. 3,937/ x 12 x 16 = Rs. 7,55,904/. I also award Rs. 10,000/ each towards loss of love and affection, loss of estate and funeral expenses and loss of consortium. The total compensation is determined as under:
Loss of dependency : Rs. 7,55,904/
Funeral Expenses : Rs. 10,000/
Loss of consortium : Rs. 10,000/
Loss of estate : Rs. 10,000/
Loss of Love and affection : Rs. 10,000/
TOTAL : Rs. 7,95,904/
RELIEF
23.I thus award Rs. 7,95,904/ (Rs. Seven Lacs Ninety Five Thousand Nine Hundred Four only) with interest at the rate of 7.5% from the date of filing of petition till its realisation in favour of petitioners against the respondents including interim award, if any. The liability of all the respondents being joint and several. Petitioner no. 1 is entitled to a share of 70% in the awarded amount whereas petitioner no. 2 to 4 will have a share of 10% each in the award amount.
24. For safeguarding the compensation amount from being frittered away by the beneficiaries, it has been held in G.M Kerala State Road Transport Corporation v/s S.Susamma Thomas (1994) 2 SCC 176 as follows:
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"in a case of compensation for death it is appropriate that the Tribunals do keep in mind the principles enunciated by this court in Union Carbide Corporation v. Union of India, 1991 (4) SCC 584, in the matter of appropriate investments to safeguard the feed from being frittered away by the beneficiaries owing to ignorance, illiteracy and susceptible to exploitation. In that case approving the judgment of the Gujarat High Court in Muljibhai Ajaarambhai harijan V/s United India Insurance Co. Ltd. 1983 ACJ 57 (Gujarat), this court offered the following guidelines:
"(i) The Claims Tribunal should, in the case of minors, invariably order the amount of compensation awarded to the minor invested in long term fixed deposits at least till the date of the minor attaining majority. The expenses incurred by the guardian or next friend may, however, be allowed to be withdrawn;
25. In view of the above judgment, Rs. One Lakh be released to petitioner no. 1 and her remaining amount shall be kept in Nationalised Bank, for a period of 10 years. The entire amount of petitioner no. 2 to 4 be kept in FDR in a Nationalised Bank till they attain majority. Interest to be paid quarterly/monthly. No advance or loan shall be allowed against the FDR without permission of the court.
26. Nazir to report in case the cheque is not deposited within 30 days of the 15 passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself. 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 of the Bank 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.
APPORTIONMENT OF LIABILITY:
27.Respondent no. 3 disputed its liability on the ground that vehicle was being driven without permit thus insured violated the terms and conditions of the policy. In this regard R3W1 proved the insurance policy of the offending vehicle Ex.R3W1/1 and stated that the vehicle in question was insured as passenger carrying vehicle. R3W1 also stated that notice was sent to driver and owner to produce the driving licence, policy and permit the notice was proved as Ex.R3W1/2 and Ex.R3W1/3. He proved the postal receipts were Ex.R3w1/4 and Ex.R3w1/5 and registered AD card was Ex.R3w1/6. Notice was duly served upon the driver by registered AD. R3w1 also stated that the insured vehicle was being used by U.P Congress Committee for carrying passengers from U.P to Delhi and proved a letter issued by UP Congress Committee Ex.R3w1/7 in this 16 regard. R3w1 also stated that permit was not seized by the police neither the injured produce the same. The testimony of R3w1 had gone unchallenged. Thus, respondent no. 3 has led cogent and reliable evidence to prove that vehicle was being driven without permit which was the violation of terms of the policy. However as regards the satisfaction of the award even in cases insurance company proves its defence it has been held in National Insurance Company Limited Vs. Swaran Singh, AIR 2004 SC 1531 as follows: "Motor Vehicles Act, 1988, Sections 149(2)(a)(ii) and proviso to Sub sections (4) and (5) - Third party Claims Liability of insurance company to satisfy Breach of policy - Defences for insurer - Even if the Tribunal arrives at a conclusion that the insurer has proved its defence u/s 149(2) , still it can direct the insurer to pay the amount of compensation to third party with a right to recover it from the insured."
28. Thus, respondent no. 1 and 2 are held jointly and severally liable. Respondent no. 3 being the insurer is directed to deposit the award amount within a period of 30 days with interest at the rate of 7.5% per annum from the date of filing of petition till its realisation with the right to recovery from respondent no. 2 i.e. owner. In case of delay he shall be liable to pay interest @ 12 % per annum.
29. Nazir to report in case the cheque is not deposited within 30 days of the 17 passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself.
An attested copy of the award be given to the parties. File be consigned to Record Room.
Announced in the open court.
On 16.01.2012 (POONAM CHAUDHARY)
JUDGE/MACTI, NEW DELHI