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Delhi District Court

Smt. Madhu Jain (Age 50 Yrs. ­ Widow) vs Sh. Jagmeet Singh (Driver) on 14 December, 2012

         IN THE COURT OF SH. ARUN BHARDWAJ
PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS TRIBUNAL­II, 
             DWARKA COURTS, NEW DELHI

                                         MACT NO. 03/11/10

IN THE MATTER OF : 

   1. Smt. Madhu Jain  (Age 50 yrs. ­ Widow)
      W/o late Sh. Ashok Kumar 
       
   2. Sh. Punit Jain  (Age 26 yrs. ­ Son)
      S/o late Sh. Ashok Kumar 
       
   3. Sh. Umesh Jain (Age 24 yrs. ­ Son)
      S/o late Sh. Ashok Kumar

       All Residents of:
       K­86­B, New Mahavir Nagar
       New Delhi. 

                                                                                ...... Petitioners
                                             Versus

   1. Sh. Jagmeet Singh (Driver) 
      S/o Sh. Rajender Singh
      R/o Ward No. 06, Giddarbaho
      Distt. Muktsar, Punjab 152026.
       
   2. M/s. Golden Temple Road Lines (Owner)
      5­D, Sutlej Market, Jalandhar
      Punjab.

                                                                             ........ Respondents

FILED ON                                                      :    04.06.2010
RESERVED ON                                                   :    01.12.2012
DECIDED ON                                                    :    14.12.2012



MACT No. 03/11/10             Smt. Madhu Jain & Ors. v. Sh. Jagmeet Singh & Ors.       Page 1 of 16
                            ­:      J U D G M E N T     :­

1. This is a claim petition filed under Section 166 and 140 of the Motor Vehicles Act, 1988.

2. Petitioner No. 1 is the widow and Petitioner No. 2 and 3 are sons of late Sh. Ashok Kumar who suffered fatal injuries in a road traffic accident.

3. Respondent no.1 is the driver and respondent no.

2 is the owner. Unfortunately the offending vehicle was not insured on the date of accident.

Case of Petitioners:­

4. It is stated in the claim petition that on 17.03.10, at about 7.45 hrs., the deceased was riding motorcycle bearing no. DL­4S­BC­7899 Pulsar.

5. It is stated that at that time at Dabri Crossing Bus Stand, a speeding canter bearing no. PB­08­AZ­9708 came from Dabri Crossing side and hit the motorcycle driven by the deceased who as a result of it fell down and sustained accidental injuries due to rash and negligent driving of Respondent No. 1.

6. It is also stated that deceased was taken to Deen Dayal Upadhyay Hospital immediately after the accident but he was declared as 'Brought Dead' by the doctors.

7. It is stated that police has registered FIR No. 66/10 at P.S. Dabri Southwest, Delhi against Respondent No. 1.

8. It is also stated that deceased was 52 years of age at the time of accident and was Production Manager at M/s.

Richa & Company and was earning Rs. 20,000/­ per month.

9. It is also stated that deceased was an income tax payee. Before joining M/s. Richa & Company, deceased was doing business of property dealing and was arranging summer camps and tours and before that he was doing business of fabrication in the name and style of M/s. Puneet Exports.

10. It is stated that the deceased was head of family and sole bread earner who used to contribute towards house hold expenses.

11. In these circumstances, petitioners have prayed for a compensation of Rs. 50 lacs alongwith interest @ 18% p.a. Case of Respondent No. 1 and 2:­

12. A common written statement was filed by Respondent No. 1 and 2 where they have stated that alleged accident is not caused with the alleged vehicle of answering respondents and claim petition is without any cause of action.

13. It is also stated that the deceased himself was negligent as he was plying his motorcycle bearing no. DL­4S­ BC­7899 in a rash and negligent manner, at a high speed, in a zig zag manner in middle of the road and that too without holding a valid and effective driving license, in contravention of traffic rules.

14. It is stated that the accident, if any, took place only due to negligence on the part of the deceased and hence MACT No. 03/11/10 Smt. Madhu Jain & Ors. v. Sh. Jagmeet Singh & Ors. Page 3 of 16 present petition of the petitioner is liable to be dismissed and answering respondents are not liable to pay anything to the petitioners on account of compensation.

15. It is further stated that the alleged vehicle of answering Respondent No. 2 has been falsely implicated by the police of P.S. Dabri, Delhi.

16. Rest of the contents of claim petition were denied and it was prayed that claim petition is liable to be dismissed.

17. Perusal of record shows that petitioner no. 1 had entered in the witness box as PW­1 and on behalf of respondents two witnesses were examined. First witness was Respondent No. 1 himself and second witness was from Transport Authority Bharatpur, Rajasthan.

18. However, issues were not framed.

19. A claim petition under Section 166 of Motor Vehicles Act is in the nature of an inquiry. Technicalities do not come in the way of claimants in receiving compensation. Issues are framed as a matter of practice for the convenience of the Tribunal to decide the compensation in the inquiry but in a case where issues are not framed and parties have recorded their evidence, no prejudice will be suffered by any party in case the Tribunal is satisfied that there is rash and negligence of Respondent No. 1 in driving the vehicle and quantum of compensation is assessed on the basis of material on record.

20. Therefore, for passing award in this case the issues which will be considered by this Tribunal are as under:­ MACT No. 03/11/10 Smt. Madhu Jain & Ors. v. Sh. Jagmeet Singh & Ors. Page 4 of 16

1. Whether Sh. Ashok Kumar sustained fatal injuries in a motor vehicle accident dtd 17/03/2010 due to rash and negligent driving of vehicle i.e. Canter bearing no. PB­08­AZ­9708 driven by Respondent no. 1, owned by Respondent no. 2? ..... OPP

2. Whether the petitioners are entitled to claim compensation, if so, what amount and from whom? .... OPP

3. Relief .

21. Petitioner no. 1 has entered in the witness box as PW­1 and has stated in her evidence by way of affidavit similar facts as were already stated by claimants in the claim petition.

22. However, she also stated that after the death of deceased, she has not remarried. Petitioner no. 2 is aged 26 years and is married and Petitioner no. 3 is aged 24 years and all the petitioners were financially and emotionally dependent upon the deceased.

23. PW­1 proved death certificate of the deceased as Ex. PW1/1, ITR for assessment year 1993­94 as Ex. PW1/2, PAN Card of the deceased was also exhibited as Ex. PW1/2, copy of marks obtained at B.A. (Hons.) Part­I Examination, 1997 two years scheme, University of Rajasthan by the deceased as Ex. PW1/3, Election I­Card of petitioner no. 1 as Ex. PW1/4, Election I­Card of Petitioner No. 2 as Ex. PW1/5, driving license of Petitioner No. 3 as Ex. PW1/6 and FIR as Ex. PW1/7.

24. Counsel representing Respondent No. 1 and 2 had withdrawn his Vakalatnama in favour of Respondent No. 2 and had cross examined PW­1 only as counsel for Respondent No. 1.

25. PW­1 stated in her cross examination that she has not filed any document in support of employment of her husband with M/s. Richa & Company.

26. She stated that the deceased did not file ITR after assessment year 1996­97.

27. She deposed that her eldest son Mr. Puneet Jain at present is employed in a showroom at a salary of Rs. 8000­8500/­ per month and youngest son Mr. Umesh Jain is studying.

28. She further deposed that she had to sell her house at New Mahavir Nagar and had to shift to Uttam Nagar.

29. She came to know about the accident within 30 minutes from some property dealer namely Sh. Aggarwal.

30. She deposed that the deceased was alone on the motorcycle and she is not an eye witness to the accident.

31. She denied a suggesting that her husband did not know driving a two wheeler and stated that deceased was driving two wheeler for the last 20 years.

32. Other suggestions contrary to her case were also denied by her.

33. Respondent No. 1 entered in the witness box as R1W1 and stated in his evidence by way of affidavit that the deceased was not holding any valid and effective driving MACT No. 03/11/10 Smt. Madhu Jain & Ors. v. Sh. Jagmeet Singh & Ors. Page 6 of 16 license for plying any vehicle. Therefore, this claim petition is liable to be dismissed. He reiterated that deceased met with fatal injuries as he was driving the motorcycle in a rash and negligent manner.

34. The witness was cross examined by counsel for petitioner and Respondent No. 1 stated in his cross examination that on 17.03.10, he himself was driving the vehicle bearing registration no. PB­08­AZ­9708. He admitted that FIR No. 66/10 was registered in this case at P.S. Dabri against him. He also admitted that offending vehicle was taken into possession and he was arrested.

35. R1W1 admitted that a charge sheet was filed by the police against him and he is facing trial.

36. He stated that on the date of accident, the vehicle was not insured and deceased was not known to him prior to 17.03.10.

37. Rest of the suggestions contrary to his case were denied.

38. Second witness summoned by Respondent No. 1 was a witness from Transport Authority Bharatpur, Rajasthan.

39. This witness Sh. Shyam Lal, R1W2 exhibited Authority letter in his favour as Ex. R1W2/1, office record of driving license issued to the deceased by Office of DDO Rajasthan was proved as Ex. R1W2/2. He deposed that as per their record, Sh. Ashok Kumar Jain had a driving license to drive motorcycle with gears as well as LMV. Attested copy of driving license of Sh. Ashok Kumar Jain was proved as Ex.

R1W2/3.

40. Arguments were addressed by learned Counsel for petitioner as well as learned Counsel for Respondent No. 1.

41. On the basis of pleadings of parties, evidence on record and arguments addressed, issuewise findings are as under:­ ISSUE NO. 1:­

42. Burden of proving this issue is on the petitioners.

43. For succeeding in a claim petition filed under Section 166 of Motor Vehicles Act, it is for the petitioners to prove that the vehicle which caused the accident was being driven rashly and negligently by its driver.

44. This is sine qua non for getting the relief.

45. Petitioners have not examined an eye witness. However, certified copy of final form report under Section 173 of Cr.P.C., FIR, statement of witnesses recorded by the police under Section 161 of Cr.P.C., site plan, arrest memo of Respondent No. 1, Personal Search Memo of Respondent No. 1, Seizure Memo of driving license of Respondent No. 1, Seizure Memo of RC of offending vehicle, Pollution under control certificate, certified copy of RC, Mechanical Inspection Report of motorcycle driven by the deceased as well as offending vehicle, request for post mortem and post mortem, death report, MLC and order passed by Ld. Magistrate admitting Respondent No. 1 on bail are on record.

46. Perusal of certified copy of charge sheet reveals that case was registered on the complaint of Ct. Ashok Kumar MACT No. 03/11/10 Smt. Madhu Jain & Ors. v. Sh. Jagmeet Singh & Ors. Page 8 of 16 who stated that on 17.03.10 he was on night duty and while patrolling, around 7.45 a.m., near Dabri Crossing Bus Stand, he saw motorcycle bearing no. DL­4S­BC­7899 Pulsar, Black colour and also saw Eicher Canter bearing registration no. PB­08­AZ­9708 driven by its driver in a rash and negligent manner came from Dabri Crossing side and hit the motorcycle from one side as a result of which the motorcyclist fell down on the road and suffered grievous injuries.

47. He had stated that he had caught driver of the offending vehicle at the site of accident itself.

48. The above is sufficient to return a finding of rash and negligent driving against Respondent No. 1 because the test of rash and negligent driving is neither of preponderance of probabilities nor beyond all reasonable doubts. The test is rather much simpler.

49. Although Respondent No. 1 appeared in the witness box but he could not prove anything in his defence to show that he was innocent and not responsible for the accident.

50. In Ranu Bala Paul & Ors. v. Bani Chakraborty & Ors. 1999 ACJ 634, the Hon'ble Gawhati High Court has observed as under:­ "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 MACT No. 03/11/10 Smt. Madhu Jain & Ors. v. Sh. Jagmeet Singh & Ors. Page 9 of 16 is to be decided on the basis of preponderance of evidence, but in a claim before the Motor Accidents Claims Tribunal the 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"

51. In the case of National Insurance Co. Ltd. v. Vijay Laxmi & Ors. MAC APP. No. 375/06 dated 05.07.12, the Hon'ble High Court of Delhi has held as under:­ "8. In Bimla Devi and Ors. v. Himachal Road Transport Corporation and Ors., (2009) 13 SC 530, the Supreme Court held that in a petition under Section 166 of the Act, the Claimants were merely to establish their case on the touchstone of preponderance of probability and holistic view is to be taken while dealing with the Claim Petition under the Motor Vehicles Act. Para 15 of the report is extracted hereunder:­ "15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied."

9. The report in Bimla Devi (Supra) was relied on by the Supreme Court in its latest MACT No. 03/11/10 Smt. Madhu Jain & Ors. v. Sh. Jagmeet Singh & Ors. Page 10 of 16 judgments in Parmeshwari v. Amir Chand (2011) 11 SCC 635 and Kusum Lata v. Satbir, (2011) 3 SCC 646."

52. In the case of National Insurance Company Ltd. v. Pushpa Rana & Ors.: 2009 ACJ 287, the Hon'ble High Court of Delhi has held that:­ "The last contention of the appellant insurance company is that the respondents­ claimants 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 Co. 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 F.I.R No. 955 of 2004, pertaining to involvement of the offending vehicle; (ii) criminal record showing completion of investigation of police and issue of charge­sheet under Sections 279/304­A, Indian Penal Code against the driver; (iii) certified copy of F.I.R., wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of the deceased. These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under the Motor Vehicles 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 the part of the driver."

53. Therefore, this issue is decided in favour of MACT No. 03/11/10 Smt. Madhu Jain & Ors. v. Sh. Jagmeet Singh & Ors. Page 11 of 16 petitioners and against the respondents. ISSUE NO. 2:­

54. Date of birth of the deceased, as per Ex. PW1/2 is 07.12.1955. The date of accident is 17.03.2010.

55. Therefore, age of the deceased at the time of accident was slightly more than 54 years.

56. As per judgment of Hon'ble Supreme Court in the case of Smt. Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr., 2009 (6) SCALE 129, the multiplier applicable in this case will be of 11.

57. There is no documentary evidence of income of the deceased.

58. The petitioners had filed ITR of the deceased of assessment year, 1993­94 which is Ex. PW1/2. There is a photocopy of ITR for assessment year, 1996­97 but the accident had taken place in the year, 2010. What was the income of the deceased in these 13 years or on the date of accident is not available on record.

59. So far as educational qualification of the deceased is concerned, there is only copy of marks obtained at B.A. (Hon.) Part­I Examination in 1997 of University of Rajasthan. As per this, the deceased had only passed Part­I Exam whereas the course of was of two years duration. There is no evidence that deceased had successfully graduated.

60. Therefore, for assessing compensation, deceased shall be treated as a matriculate.

61. Salary of a matriculate as on 17.03.2010 was Rs.

6,448/­ per month.

62. Petitioners have stated that all the three petitioners were dependent on the deceased at the time of accident.

63. At the time of recording evidence i.e. on 25.02.2011, more than 9 months of death of the deceased his eldest son had got on employment but younger son of the deceased was still studying.

64. As all the petitioners were dependent on the deceased, the deduction for personal expenses of the deceased will be 1/3rd.

65. Since deceased was more than 50 years of age, no compensation is to be awarded for loss of future prospects.

66. Once 1/3rd is deducted from Rs. 6,448/­, contribution to the family would be Rs. 4,298.66 per month or Rs. 51,584/­ per annum.

67. As multiplier of 11 is to be applied, Loss of Dependency for petitioners will be Rs. 5,67,424/­.

68. So far as loss of love and affection is concerned, Hon'ble High Court of Delhi in the case of New India Assurance Company Ltd. Vs. Bharat Singh: MAC Appeal No. 137/12, dated 08.08.2012 has held that when full compensation towards loss of dependency is granted, only a nominal sum is to be awarded towards loss of Love and Affection.

69. It was further held that the trend of the Hon'ble High Courts and the Hon'ble Supreme Court is to grant a MACT No. 03/11/10 Smt. Madhu Jain & Ors. v. Sh. Jagmeet Singh & Ors. Page 13 of 16 compensation of Rs. 25,000/­ for Loss of Love and Affection. Such compensation was granted by the Hon'ble Supreme Court in the case of Sunil Sharma Vs. Bachitar Singh Singh:

2011 (11) SCC 425 and in the case of Baby Radhika Vs. Oriental Insurance Company Limited: 2009 (17) SCC 627.

70. Therefore, the petitioners are entitled to a sum of Rs.25,000/­ for Loss of Love & Affection.

71. Petitioners are also entitled to a sum of Rs. 10,000/­ for Cremation Charges and Rs.10,000/­ for Loss of Estate.

72. Petitioner No. 1 is also entitled to a sum of Rs. 10,000/­ for Loss of Consortium.

73. Therefore, total compensation payable to the petitioners would be Rs. 6,22,424/­ which shall be payable with interest @ 7.5% per annum (this is the rate of interest which is being awarded by the Hon'ble High Court of Delhi at present) from the date of filing of this claim petition which is 04.06.2010 till its deposit.

74. Therefore, compensation would be deposited by Respondent No. 1 and 2 who are jointly and severally liable to pay the compensation within 30 days from today under intimation to the petitioners by registered post.

75. For apportionment of compensation, following directions are passed:­ (1) 50%/­, out of the total compensation awarded, with proportionate interest shall be payable in favour of Petitioner No. 1, Smt. Madhu Jain, widow of the deceased. This MACT No. 03/11/10 Smt. Madhu Jain & Ors. v. Sh. Jagmeet Singh & Ors. Page 14 of 16 payment shall be deposited by the insurance company directly with State Bank of India, Dwarka Courts, New Delhi and the cheque will be in the name of SBI A/c Smt. Madhu Jain. Out of this, 10% shall be released in her Saving Bank Account to be opened in State Bank of India, Dwarka Courts, New Delhi. Balance compensation will be kept in 10 FDRs of equal amount for a period of 1 to 5 years. Monthly interest will be credited in her Saving Bank Account regularly.

(2) 25%, out of the total compensation awarded, with proportionate interest shall be payable in favour of Petitioner No. 2, Shri Punit Jain, son of the deceased. This payment shall be deposited by the insurance company directly with State Bank of India, Dwarka Courts, New Delhi and the cheque will be in the name of SBI A/c Shri Punit Jain. Out of this, 10% shall be released in his Saving Bank Account to be opened in State Bank of India, Dwarka Courts, New Delhi. Balance compensation will be kept in 3 FDRs of equal amount for a period of 1 to 3 years. Monthly interest will be credited in his Saving Bank Account regularly.

(3) 25%, out of the total compensation awarded, with proportionate interest shall be payable in favour of Petitioner No. 2, Shri Umesh Jain, son of the deceased. This payment shall be deposited by the insurance company directly with State Bank of India, Dwarka Courts, New Delhi and the cheque will be in the name of SBI A/c Shri Umesh Jain. Out of this, 10% shall be released in his Saving Bank Account to be opened in State Bank of India, Dwarka Courts, New Delhi. Balance compensation will be kept in 3 FDRs of equal MACT No. 03/11/10 Smt. Madhu Jain & Ors. v. Sh. Jagmeet Singh & Ors. Page 15 of 16 amount for a period of 1 to 3 years. Monthly interest will be credited in his Saving Bank Account regularly.

(4) No Cheque Book will be given to the petitioners.

(5) They will be given passbook and photocopies of FDRs.

(6) Original FDRs shall remain with the Bank.

(7) Petitioners shall cooperate with the bank by providing required documents and by completing necessary formalities for opening of bank account.

(8) Petitioners shall be at liberty to seek transfer of FDR Accounts and Saving Bank Accounts to any other Branch of SBI, if so desired.

76. Copy of this order be given dasti to all the parties and a copy be also sent to the State Bank of India, Dwarka Courts, New Delhi.

77. File be consigned to the Record Room.

Announced in the open Court On the 14th Day of December, 2012 (ARUN BHARDWAJ) PRESIDING OFFICER MOTOR ACCIDENTS CLAIMS TRIBUNAL­II DWARKA COURTS: NEW DELHI MACT No. 03/11/10 Smt. Madhu Jain & Ors. v. Sh. Jagmeet Singh & Ors. Page 16 of 16