Delhi District Court
Deepak Aggarwal (Husband Of Deceased) vs Rajeev Kumar on 7 March, 2012
IN THE COURT OF SH. ARVIND KUMAR : PRESIDING OFFICER: MACT
KARKARDOOMA COURTS : DELHI
M.A.C. Petition No: 755/10
Unique Case ID No. : 02402C0086032009
1. Deepak Aggarwal (Husband of deceased)
S/o Sh. Ram Dhan Aggarwal
2. Sh. Saurabh Aggarwal (son of deceased)
S/o Sh. Deepak Aggarwal
3. Ms. Akshita Aggarwal (Daughter of deceased)
D/o Sh. Deepak Aggarwal
(Petitioner no. 2 and 3 are minor
and through their natural father / petitioner no. 1)
All R/o 9/2049, Gali No. 6,
Kailash Nagar, Delhi-110031 ......... Petitioners
VERSUS
1. Rajeev Kumar
S/o Sh. Mukesh Chand
R/o H. No. 573/22, Gali No. 3,
Vijay Park, Maujpur, Delhi (Driver)
2. Kameshwar Singh
S/o Sh. Mangal Singh
R/o 529/10, Shaheed Bhagat Singh Colony,
Karawal Nagar, Delhi-110094 (Registered Owner)
3. The New India Insurance Co. Ltd.
J-129, Kirti Nagar,
New Delhi-110015 .... Respondents
Presented on : 03.03.2009 Reserved for judgment on : 31.01.2012 Judgment delivered on : 07.03.2012 JUDG MENT
1. The petitioners have filed the present petition u/s 140 & 166 of MV Act 1988 claiming compensation of Rs. 25,00,000/- towards the death of one Smt. Rekha Aggarwal, in the road side accident, occurred on 07.10.2008.
M.A.C. Petition No: 755/10 Page No. 1/102. The brief facts as stated by petitioners are that on 07.10.2008, Smt. Rekha Aggarwal, the deceased was going to her house from Bal Mandir School, Defence Enclave, Delhi and when she reached at Thokar No. 19, Pushta Road, Gandhi Nagar, Delhi, near Sai Baba Mandir, a motorcycle make Bajaj Discover bearing no. DL-8SAC-9121 came from wrong side and hit Smt. Rekha Aggarwal. It is stated that the respondent no. 1 was driving the vehicle rashly, negligently and at a high speed without caring for the traffic rules and regulations. Smt. Rekha Aggarwal suffered head injury, abdominal injury and other internal injuries and she was taken to Shakti Medical Center, Kailash Nagar, Delhi and thereafter she was referred to Sushrut Trauma Center, 9, Metcalf Road, Delhi and she was further referred to LNJP Hospital and thereafter to Pant hospital and the deceased Smt. Rekha Aggarwal expired on 16.02.2009 at LNJP hospital. Petitioner stated that deceased was 40 years of age and she was a teacher and was earning more than Rs. 10000/- per month. It is stated that the petitioner no. 2 and 3 were the minor children.
3. The respondent no. 1 and 2 filed written statement stating that deceased met with accident due to her own negligence and the accident has not happened due to fault of the answering respondent as on 07.10.2008, the deceased wrongly crossed the road without giving attention to the other vehicles and due to her own fault she suffered injuries. It is stated that accident took place on 07.10.2008 and thereafter the deceased started enjoying normal life and expired due to some other reason. It is stated that there was no postmortem report in the present matter. It is also stated that the motorcycle was being plied at the speed of 10-15 km/hr as there was heavy busy road.
4. Respondent no. 3/ insurance company filed written statement admitting that the vehicle bearing no. DL-8S-AC-9121 was insured in the name of Sh. Kameshwar Singh vide policy no. 311701/31/08/01/00001100, valid for the period 27.05.2008 to 26.05.2009. It is further stated that the insurance company would not be liable in case the driver was not holding a valid and M.A.C. Petition No: 755/10 Page No. 2/10 effective driving licence. The respondent no. 3 stated that it was relying upon the terms and conditions of exceptions and limitations as provided.
5. On the basis of the pleadings following issues were framed:-
1. Whether Smt. Rekha Aggarwal W/o Deepak Aggarwal suffered fatal injuries in road side accident on 07.10.2008 including motorcycle no. DL-8S-
AC-9121 being driven in a rash and negligent manner by R1 driver of the same?
2. Whether petitioners are the only legal heirs of the deceased and if so, to what amount of compensation if any they are entitled to?
3. Relief.
6. The petitioner no. 1 examined himself as PW1. Petitioners also examined Dr. Sunil Bansal, Sr. Resident, Lok Nayak Hospital as PW-2. On the other hand, respondents did not lead any evidence.
7. I have heard counsels for the parties and gone through the material on record. Ld. counsel for insurance company contended that the Smt. Rekha Aggarwal did not die because of the injuries suffered in the accident therefore compensation could not be granted towards the death of Smt. Rekha Aggarwal. On the other hand, counsel for petitioner contended that Smt. Rekha Aggarwal died due to the injuries suffered in the accident and therefore petitioners are entitled for compensation for the death of Smt. Rekha Aggarwal. My findings on issues are as under : -
ISSUE NO. 18. The PW-1, Sh. Deepak Aggarwal deposed that on 07.10.2008, Smt. Rekha Aggarwal, the deceased was going to her house from Bal Mandir M.A.C. Petition No: 755/10 Page No. 3/10 School, Defence Enclave, Delhi and when she reached at Thokar No. 19, Pushta Road, Gandhi Nagar, Delhi, near Sai Baba Mandir, a motorcycle make Bajaj Discover bearing no. DL-8SAC-9121 came from wrong side and hit Smt. Rekha Aggarwal. PW-1 stated that the respondent no. 1 was driving the vehicle rashly, negligently and at a high speed without caring for the traffic rules and regulations. Smt. Rekha Aggarwal suffered head injury, abdominal injury and other internal injuries and she was taken to Shakti Medical Center, Kailash Nagar, Delhi and thereafter she was referred to Sushrut Trauma Center, 9, Metcalf Road, Delhi and she was further referred to LNJP Hospital and thereafter to Pant hospital and the deceased Smt. Rekha Aggarwal was expired on 16.02.2009 at LNJP hospital. Petitioner exhibited the attested copy of FIR as PW-1/A, site plan as PW-1/C, original death certificate as PW-1/D. During cross-examination, he stated that he was not present at the place of accident.
9. PW-2 Dr. Sunil Bansal, Sr. Resident, Lok Nayak Hospital exhibited the treatment document as PW-2/1. During cross-examination, PW-2 stated that Smt. Rekha Aggarwal remained under his treatment for less than 24 hrs. on 16.02.2009. PW-2 stated that on 15.02.2009 when the patient was admitted she was complaining pain in her abdomen and stated about roadside accident but did not tell them that pain in abdomen related to the injuries suffered in the accident and the patient did not provide them any document with regard to earlier injuries, if any, suffered in the accident. PW-2 stated that provisional diagnosis was perforation peritonitis with septicemic shock and the patient died during treatment on 16.02.2009. PW-2 stated that he could not tell the cause of death as autopsy was not performed and the patient died before operation. PW-2 stated that perforation peritonitis with septicemic shock could be cause of death and he could not say if Smt. Rekha Aggarwal died because of perforation peritonitis with septicemic shock. He further stated that he could not say if the perforation peritonitis with septicemic shock was relating to the injuries suffered, if any, in the accident.
M.A.C. Petition No: 755/10 Page No. 4/1010. I have gone through the material on record. The OPD ticket issued by LNJP hospital on 17.01.2009 shows that deceased suffered numbness on lateral aspect of right lower thigh. The case history sheet progress note issued by Sushruta Trauma Centre shows that petitioner suffered multiple abrasions over B/L knee, right lan and right side face. The petitioner suffered injuries on 17.10.2008 and died on 16.02.2009. There is nothing on record to infer that Smt. Rekha Aggarwal died because of the injuries suffered in the accident. Postmortem was not conducted on the body of Smt. Rekha Aggarwal. The PW-2 Dr. Sunil Bansal also stated that he could not say if the Smt. Rekha Aggarwal died due to the perforation peritonitis with septicemic shock and he further stated that he could not say if perforation peritonitis with septicemic shock was relating to the injuries, if any suffered in the accident. He also stated that patient did not tell them that pain in the abdomen related to the injuries suffered in the accident. Under these facts and circumstances, it cannot be said that Smt. Rekha Aggarwal died due to the injuries suffered in the accident.
11. The law is well settled as laid down in "National Insurance Company Ltd. Vs.Smt. Pushpa Rana and others, MAC APP. No. 360/2007, decided on 20.12.2007", Hon'ble Delhi High Court observed :-
" 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. 955/2004, pertaining to involvement of the offending vehicle, (ii) criminal record showing completion of investigation of the police and issue of charge sheet under section 279/304-A, IPC against the driver;
(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 the deceased. These documents are sufficient proofs to reach the conclusion that the driver was negligent.
Proceedings under 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".
M.A.C. Petition No: 755/10 Page No. 5/1012. The FIR, MLC of Rekha Aggarwal, site-plan and the testimony of the PW-1, taken together fully establish that Smt. Rekha Aggarwal sustained injuries involving vehicle bearing registration No. DL-8SAC-9121 in a road accident. There is nothing on record to dispel the inference that deceased Smt. Rekha Aggarwal, suffered injuries on account of road accident which occurred on 07.10.2008 because of rash and negligent driving of vehicle bearing No. DL-8SAC-9121 being driven by respondent no. 1. There is no evidence in rebuttal. Issue no. 1 is accordingly decided.
ISSUE NO. 213. PW-1 deposed that he was the husband of the deceased. The PW-1 had placed on record copy of the ration card, Ex.PW-1/F, which clearly shows that petitioner no. 1 is the husband of the deceased and petitioner no. 2 and 3 are the son and daughter of the deceased. PW-1 deposed that Smt. Rekha Aggarwal suffered head injuries, abdominal injuries and other internal injuries and was admitted in Shakti Medical Center, Kailash Nagar, Delhi and first aid treatment was given and she was referred to Sushrut Trauma Center, 9, Metcalf Road, Delhi-110054 and was further referred to LNJP hospital and thereafter to Pant Hospital and Smt. Rekha Aggarwal expired on 16.02.2009. PW-1 stated that deceased was teacher by profession and was also giving private tuitions to the locality children and was earning more than Rs. 10,000/- per month. During cross-examination, PW-1 admitted that his wife was house wife and also stated that she was giving home tuitions. PW-1 stated that his wife was not an income tax payee and he had not filed any document to show that his wife was earning Rs.10,000/- per month. PW-1 stated that after 15 days of death of his wife he informed to the police about her death. PW-1 admitted that no postmortem was conducted on the dead body of his wife.
14. PW-2 Dr. Sunil Bansal, Sr. Resident, Lok Nayak Hospital exhibited the M.A.C. Petition No: 755/10 Page No. 6/10 treatment document as PW-2/1. During cross-examination, PW-2 stated that Smt. Rekha Aggarwal remained under his treatment for less than 24 hrs. on 16.02.2009 and PW-2 stated that on 15.02.2009 when the patient was admitted she was complaining pain in her abdomen and stated about roadside accident but did not tell them that pain in abdomen related to the injuries suffered in the accident and the patient did not provide them any document with regard to earlier injuries, if any, suffered in the accident. PW-2 stated that provisional diagnosis was perforation peritonitis with septicemic shock and the patient died during treatment on 16.02.2009. PW-2 stated that he could not tell the cause of death as autopsy was not performed and the patient died before operation. PW-2 stated that perforation peritonitis with septicemic shock could be cause of death and he could not say if Smt. Rekha Aggarwal died because of perforation peritonitis with septicemic shock. He further stated that he could not say if the perforation peritonitis with septicemic shock was relating to the injuries suffered, if any, in the accident.
15. I have gone through the material on record. The Medico Legal Report of Sushruta Trauma Centre shows that deceased suffered multiple abrasions B/L knee, right lan and right side face. The OPD ticket issued by LNJP hospital on 17.01.2009 shows that deceased suffered numbness on lateral aspect of right lower thigh. The case history sheet progress note issued by Sushruta Trauma Centre shows that petitioner suffered multiple abrasions over B/L knee, right lan and right side face. The petitioner suffered injuries on 17.10.2008 and died on 16.02.2009. It has already been observed that petitioner failed to establish that Smt. Rekha Aggarwal died due to the injuries suffered in the accident.
16. In the matter "V. Mepherson vs Shiv Charan Singh" MANU/DE/0798, Hon'ble High Court observed that "but so far as other claims under other heads those would not come to an end on the death of the objector. The right to sue would survive even on the death of the objector. As a matter of fact claim on M.A.C. Petition No: 755/10 Page No. 7/10 account of special diet, medicine, conveyance etc. are such which related to the loss of the property, Therefore, right to sue would not abet on the death of the objector. It would survive to his legal heirs as held by the High court of Punjab & Haryana in the case of Joti Ram and Ors. V. Chaman Lal and Ors. MANU/PH/0111/1985."
17. The PW-1 stated that deceased was giving tuitions and was earning Rs. 10,000/- per month but there is no material on record with regard to the deceased giving tuitions and earning Rs. 10,000/- per month. In the absence of any material on record the minimum wages for unskilled workman as prevailing at the time of accident can be taken into consideration. The minimum wages for unskilled workman were Rs. 3700/-(appox.) per month. The deceased remained under treatment from 07.10.2008 till her death. Therefore the total loss on this account comes to Rs. 14,800/- (Rs. 3700/- x 4 months). The petitioners are the husband and two children of the deceased and hence are entitled for loss of estate. It can be easily gauzed that deceased must have saved 1/3 of her income. Therefore loss of estate is taken to be 1/3 rd of income of the deceased. Medical bills are for Rs. 3,648/-. Keeping in view the facts and circumstances, I consider the following amount to be the just compensation for the injuries suffered by deceased:-
1 Loss of earning of deceased (1/3rd of Rs. 14,800/-) Rs. 4,933/- 2 Expenses towards medical bills Rs. 3,648/-
3 Compensation towards conveyance and special diet Rs. 15,000/- 4 Attendant charges for one month Rs. 3,000/-
Therefore, in my opinion the petitioners are entitled to Rs.26,581/- (rounded off to Rs.26,600/-) which shall be the just compensation to the petitioner for injuries suffered by deceased.
M.A.C. Petition No: 755/10 Page No. 8/10LIABILITY
18. Since Insurance company has admitted the policy as on date of accident therefore respondent no. 3, insurance company is liable to pay the compensation amount.
19. There being no evidence of violation of the policy condition and there being no evidence to support the permitted defence U/s. 149(2) of the M.V. Act, I am unable to grant the recovery rights. Therefore, insurance company shall make good the compensation in terms of the accepted policy.
RELIEF
20. While granting the relief to petitioner, I am also to award the interest @ 7.5% p.a (except for the period not specifically allowed) on the above said amount of Rs. 26,600/-, from the date of filing of petition till realization of the amount.
21. In view of the above, the respondent No. 3 / insurance company is liable to pay the compensation of Rs. 26,600/-. The respondent No. 3, insurance company is hereby directed to pay a compensation of Rs. 26,600/-, within one month. The respondent no. 3 shall also pay interest @ 7.5% p.a. (except for the period not specifically allowed) on the total compensation amount from the date of petition till realization to the petitioner.
22. For the aforesaid reasons, I pass the following award :-
AWARD
23. In view of the above the petition is allowed. the respondent No. 3/ insurance company is liable to pay the compensation of Rs. 26,600/-. The respondent No. 3, insurance company is hereby directed to pay a M.A.C. Petition No: 755/10 Page No. 9/10 compensation of Rs. 26,600/-, within one month. The respondent no. 2 shall also pay interest @ 7.5% p.a. (except for the period not specifically allowed) on the total compensation amount from the date of petition till realization to the petitioner. The claimants are entitled to the compensation in the following proportions along with corresponding interest :-
(a) Petitioner No. 1 shall get Rs. 16,600/- along with corresponding interest.
(b) Petitioner No. 2 and 3 shall get Rs. 5,000/- (each) along with corresponding interest.
24. List for reporting compliance on 07.05.2012
25. A copy of this order be given dasti to concerned parties.
ANNOUNCED IN THE OPEN ( Arvind Kumar )
COURT ON 07.03.2012 Presiding Officer: MACT:
Karkardooma Court
Delhi
M.A.C. Petition No: 755/10 Page No. 10/10