Delhi District Court
Smt. Suresh Lata vs Shri Subhash Chand on 4 January, 2016
IN THE COURT OF MS. GEETANJLI GOEL, PO: MOTOR ACCIDENT
CLAIMS TRIBUNAL2, PATIALA HOUSE COURTS, NEW DELHI
Suit No.D69/15
Date of Institution: 09.03.2015
IN THE MATTER OF:
1. Smt. Suresh Lata
W/o Late Shri Lala Ram
R/o A/8, Road No.2
Gali No.2, Mahipalpur Extn.
New Delhi - 110037.
2. Ms. Vineeta Choudhary
D/o Late Shri Lala Ram
3. Ms. Veenu
D/o Late Shri Lala Ram
4. Ms. Seema
D/o Late Shri Lala Ram
5. Shri Kishan Pal Singh
S/o Late Shri Lala Ram ...Petitioners
Versus
1. Shri Subhash Chand
S/o Shri Om Prakash
R/o Ward No.4
Tehsil Rampura Phool
Distt. Bhatinda, Punjab.
Suit No. D69/15 Page no. 1 of 30
Suresh Lata Vs Subhash Chand & Ors.
2. Shri Navdeep Kumar
S/o Shri Dwarka Dass
R/o Village Phool
Tehsil Rampura Phool
Bhatinda, Punjab.
3. IFFCO TOKIO General Insurance Co. Ltd.
Iffco Sadan, C1
District Centre, Saket
New Delhi. ...Respondents
Final Arguments heard : 04.12.2015 Award reserved for : 04.01.2016 Date of Award : 04.01.2016 AWARD
1. Vide this judgmentcumaward, I proceed to decide the DAR which is treated as petition u/s 166 and 140 of Motor Vehicle Act, 1988, as amended uptodate (hereinafter referred to as the Act) for grant of compensation in a road accident.
2. It is the case of the petitioners that on 12.06.2014, the deceased Shri Lala Ram met with a road accident under the jurisdiction of PS IGI Airport and he succumbed to the injuries on 28.06.2014. It is submitted that the deceased was 64 years old at the time of the accident and he left behind his wife aged about 62 years, three daughters namely Vineeta Chaudhary aged about 36 years, Veenu aged about 35 years, Seema aged about 34 years and one son namely Kishan Pal Singh aged about 30 years who was 40% disabled as his Suit No. D69/15 Page no. 2 of 30 Suresh Lata Vs Subhash Chand & Ors.
only legal heirs. It is stated that the parents of the deceased had died prior to the accident and the petitioners were the only legal heirs of the deceased who were totally dependent on the income of the deceased. It is submitted that the deceased had retired from MTNL and was drawing a monthly pension of Rs. 21,000/ approximately but after his death it had been reduced to half. Besides, the deceased was taking tuitions and was earning more than Rs. 15,000/ per month from tuitions and his earnings were increasing regularly. It is averred that the deceased was getting half pension due to some departmental inquiry. It is contended that if the deceased would have been alive then his pension would be more than Rs.40,000/ per month and if he had not died in the accident then his income would have been much more. It is asserted that the deceased used to give lots of gifts and cash to his daughters regularly. Due to 40% disability of Kishan Pal Singh, he was totally dependent on the deceased. It is submitted that all the petitioners were totally dependent on the income of the deceased who was a science graduate. It is averred that from the place of accident the deceased was taken to Fortis Hospital, Sector B, Pocket1, Vasant Kunj, New Delhi where his MLC was prepared. The deceased remained admitted there till 15.06.2014 and from there he was shifted to Batra Hospital, MehrauliBadarpur road, New Delhi from 15.06.2014 to 28.06.2014 till he died. The post mortem of the deceased was conducted at Safdarjung Hospital. It is stated that the petitioners had spent more than Rs. 6,00,000/ on his medicine and treatment and Rs.1,00,000/ on his funeral and the petitioners had not taken any reimbursement of his medical bills nor he Suit No. D69/15 Page no. 3 of 30 Suresh Lata Vs Subhash Chand & Ors.
was having any mediclaim policy. It is contended that because of the death of the deceased in the road accident, the petitioners had suffered great mental agony, loss of love and affection, social loss and financial loss and they had not recovered from the trauma sustained by all of them due to the death of the deceased in the road accident. There was no one to look after all the petitioners and the losses suffered by the petitioners were irreparable.
3. Legal offer was filed on behalf of the respondent No.3 stating therein that it was alleged that on 12.06.2014 at about 05:30 a.m., when the deceased was crossing the main road, a car bearing No.PB10CW1200 coming from the side of Aero City going towards T3, IGI Airport allegedly hit the deceased, thereby causing injuries due to which the deceased died. It is submitted that the alleged offending vehicle i.e. the car bearing No.PB10CW1200 was insured with the respondent No.3 with effect from 12.12.2013 to 11.12.2014 vide policy No.86064996. It is contended that a perusal of the record shows that the alleged accident took place due to the recklessness and negligence of the deceased who was crossing the main road dangerously by violating the traffic rules. The deceased ought to have used the foot over bridge/ subway/ zebra crossing in order to cross the main road, which had been constructed for pedestrians. Further the deceased ought to have crossed the main road from the zebra crossing when the traffic signal for vehicle movement was red. However, the deceased blatantly ignored the traffic rules and crossed the main road when the traffic signal for vehicle movement was green which showed Suit No. D69/15 Page no. 4 of 30 Suresh Lata Vs Subhash Chand & Ors.
that the deceased was extremely negligent, reckless and having no regards towards the law and was solely responsible for the alleged accident. It is averred that perusal of the record shows that the deceased was aged about 64 years on the date of the alleged accident. An offer of Rs.6,78,360/ (plus medical bills) was made.
4. From the pleadings of the parties, the following issues were framed vide order dated 01.05.2015:
1. Whether the deceased sustained fatal injuries in the accident which occurred on 12.06.2014 at about 05:30 A.M. at Aero City, T3, IGI Airport Road, New Delhi, caused by rash and negligent driving of vehicle No.PB10CW1200 driven by respondent no.1, owned by respondent no.2 and insured with respondent no.3? OPP
2. Whether the LRs of the deceased are entitled for compensation? If so, to what amount and from whom?
3. Relief.
An application under Section 170 MV Act was filed on behalf of the insurance company which was allowed vide order dated 4.9.2015.
5. On behalf of the petitioners, the petitioner No.1 Smt. Suresh Lata appeared in the witness box as PW1 and led her evidence by way of affidavit which is Ex.PW1/A. Copy of Aadhar card and PAN card of the petitioner No.1 Suit No. D69/15 Page no. 5 of 30 Suresh Lata Vs Subhash Chand & Ors.
are Ex.PW1/1 and Ex.PW1/2, copy of Aadhar Card of Vineeta Chaudhary is Ex.PW1/3, copy of election ICard of Veenu is Ex.PW1/4, copy of Aadhar card of Seema is Ex.PW1/5, copy of Aadhar card of Kishan Pal Singh is Ex.PW1/6, copy of disability certificate of Kishan Pal Singh is Ex.PW1/7, educational papers of the deceased are Ex.PW1/8 to Ex.PW1/10, the pension documents of the deceased are Ex.PW1/11, DAR is Ex.PW1/12 and the medical bills are Ex.PW1/13. Copy of passbook of the deceased in which he received his pension is Ex.PW1/14 (colly) and copy of covering letter and detail of last pension cheque is Ex.PW1/15 (colly). PE was closed on 4.9.2015. RE was closed on 4.12.2015.
6. I have heard the Learned Counsel for the petitioners as well as the Learned Counsel for the respondent No.3 and perused the record. The petitioners No.1 and 5 were also examined on 4.9.2015 in terms of the judgment of the Hon'ble High Court on 11.1.2013 in MACA No.792/2006 titled Oriental Insurance Co. Ltd. v. Ranjit Pandey and Ors.
7. My findings on the specific issues are as under:
Issue No. 1
8. As the case is U/s 166 M.V Act it was incumbent upon the petitioners to prove that the deceased sustained injuries in an accident caused due to the Suit No. D69/15 Page no. 6 of 30 Suresh Lata Vs Subhash Chand & Ors.
rash and negligent driving by the driver of the offending vehicle. To determine the negligence of the driver of the offending vehicle it has been held in National Insurance Company Ltd. vs Pushpa Rana & Another 2009 Accident Claims Journal 287 as follows:
"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 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 to involvement of offending vehicle (ii) criminal record showing completion of investigation of police and issue of charge sheet under sections 279/304A, Indian Penal Code 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 deceased.
These documents are sufficient proofs to reach the 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."
It is established law that in a claim petition under Motor Vehicle Act, the standard of proof to establish rash and negligent driving by the driver of the offending vehicle is not at par with the criminal case where such rashness and negligence is required to be proved beyond all shadow of reasonable doubt. In Suit No. D69/15 Page no. 7 of 30 Suresh Lata Vs Subhash Chand & Ors.
Kaushnamma Begum and others v. New India Assurance Company Limited, it was inter alia held by the Hon'ble Supreme Court that the issue of wrongful act or omission on the part of the driver of the motor vehicle involved in the accident has been left to a secondary importance and mere use or involvement of motor vehicle in causing bodily injury or death to a human being or damage to property would make the petition maintainable under Sections 166 and 140 of the Motor Vehicle Act.
9. The case of the petitioners is that on 12.6.2014 the deceased met with a road accident under the jurisdiction of PS IGI Airport and he succumbed to the injuries on 28.6.2014. From the place of accident the deceased was taken to Fortis Hospital, Sector B, Pocket 1, Vasant Kunj where his MLC was prepared. He remained admitted there till 15.6.2014 and from there he was shifted to Batra Hospital and he remained there till he died. His post mortem was conducted at Safdarjung Hospital. It was stated that in respect of the accident FIR No.191/2014 under Sections 279/304A IPC was registered at PS IGI Airport. The petitioner No.1 had deposed to that effect. However the petitioners had not stated about the manner of the accident. As per the charge sheet, the eye witness Vikas had stated that he had seen the accident take place on 12.6.2014. He stated that on that day at about 5.30 a.m. one silver colour Innova bearing No.PB10CW1200 was going from Aerocity towards T3 Airport at high speed and it hit one old person who was crossing the road from the side of the park. Due to the hit, the said person fell on the front glass of the Suit No. D69/15 Page no. 8 of 30 Suresh Lata Vs Subhash Chand & Ors.
car due to which the front glass of the vehicle cracked.
10. The IO had filed Detailed Accident Report containing the criminal record consisting of copy of charge sheet; copy of tehrir, copy of FIR; copy of site plan; copy of MLC, copy of arrest memo, copy of seizure memos; copy of post mortem report, copy of mechanical inspection report of the offending vehicle, copy of notice under section 133 MV Act, copy of verification report of the RC of the offending vehicle with the copy of the RC, copy of the insurance policy of the offending vehicle and its verification report and verification report of DL of the respondent No.1 with a copy of the DL, copies of documents in respect of the petitioners and the deceased, copies of statements under section 161 Cr.P.C. and copies of bills in respect of the deceased. As per the FIR No. 191/14 under sections 279/337 IPC, PS IGI Airport the case was registered on the basis of DD. As per the charge sheet the respondent No.1 has been charge sheeted for the offence under sections 279/304A IPC.
11. The respondents No.1 and 2 had not filed the written statement nor appeared to crossexamine PW1. During crossexamination by the learned counsel for the insurance company PW1 stated that she was not an eye witness to the accident. She stated that she was informed about the accident through an eye witness namely Vikas who had also gone to the hospital along with her husband in the offending vehicle. She stated that she used to visit the place of the accident where she met the eye witness who showed her the Suit No. D69/15 Page no. 9 of 30 Suresh Lata Vs Subhash Chand & Ors.
photograph of her deceased husband which he had taken after the accident. He had taken the photograph of the deceased in his mobile while taking him to the hospital. She stated that she met the eye witness after 34 days after the accident. She had visited the spot of accident many times in the said 34 days. She stated that both the eye witness and she were not known to each other before her first meeting. She chanced to meet the eye witness at the spot. She informed the police about the eye witness to the accident but no action was taken by the IO. She stated that her son met the police officials many times for complaining against the IO but again no action was taken immediately. IO was not interested in taking any action or investigating the case further. She stated that she was not aware about the registration number of the offending vehicle. She denied the suggestion that the accident did not take place with the alleged offending vehicle. She denied the suggestion that the eye witness had been planted to depose falsely against the offending vehicle. She denied the suggestion that she was deposing falsely in order to inflate her claim. She denied the suggestion that the accident took place due to the negligence of her deceased husband who was crossing the road at the time of the accident. Thus PW1 stated that she was not an eye witness to the accident and that she was informed about the accident through an eye witness namely Vikas. She was crossexamined on how she met the eye witness but nothing has come out in the crossexamination to show that the eye witness was planted and she stated that both the eye witness and she were not known to each other before her first meeting.
Suit No. D69/15 Page no. 10 of 30 Suresh Lata Vs Subhash Chand & Ors.
12. It would be argued on behalf of the respondent No.3 that PW1 was not an eye witness to the accident and the petitioners had not produced any evidence to prove the negligence of the respondent No.1 and as such the petitioners had failed to establish the negligence of the respondent No.1. However the respondents No.1 and 2 who are the driver and owner of the offending vehicle have not adduced any evidence to dispute the version put forth by the petitioners or in the criminal record. The criminal record has been placed on record which shows that the respondent No.1 has been charge sheeted for the offence under Sections 279/304A. In Basant Kaur and others v. Chattar Pal Singh and others 2003 ACJ 369 MP (DB) it was observed that registration of criminal case against the driver of the offending vehicle was enough to record a finding that the driver of the offending vehicle was responsible for causing the accident. The respondents have also not led any evidence to prove any other version of the accident. There is no evidence from the respondents to disprove the particulars of the accident or the involvement of vehicle No.PB10CW1200. In view of the testimony of PW1 and the documents on record which have remained unrebutted, the negligence of the respondent No.1 has been prima facie proved.
13. At the same time, it is seen that the accident had taken place when the deceased was crossing the road as per the statement of the eye witness which is on record and that he was crossing the road from a spot not meant for crossing the road. The site plan does not show any subway or red light or Suit No. D69/15 Page no. 11 of 30 Suresh Lata Vs Subhash Chand & Ors.
zebra crossing at the spot of the accident. As such there is nothing to show that the deceased was crossing the road at a spot meant for crossing the road. The Hon'ble High Court of Karnataka in Koosappa Poojari v. K. Sadabba & Ors. MFA No.6208 of 2002 decided on 21.11.2003 observed that the driver of the vehicle ought to have been more prudent and circumspect while driving. It was however also observed:
"But it cannot be lost sight of the fact that a duty is also cast on a pedestrian and he should use due care and caution in going upon and crossing the road and it is his duty to look out for on coming traffic. In so far as the another duty cast on the pedestrian is concerned, it is needless to say that he has to give the driver a plenty of time to see him and slow down and start before he attempts to cross or put one foot on the crossing. It is not always necessary that the vehicular traffic will have to stop for a pedestrian to cross, for the vehicle needs more time to stop in view of the speed a motor generates. Moreover, whenever a pedestrian is crossing over a roadway at any place other than which is meant for pedestrian crossing, they cannot claim any specific precedence and the responsibility for causing the accident more often than not will have to be shared by the pedestrian along with the vehicle driver. In view of this, it cannot be said that it was only the driver of the vehicle in question was solely responsible for the accident."
Reliance was placed in this judgment on the judgment of the Hon'ble Supreme Court in Pramodkumar Rasikbhai Jhaveri v. Karmasey Kunvargi Tak and others (2002) 6 SCC 455 where it was observed:
Suit No. D69/15 Page no. 12 of 30 Suresh Lata Vs Subhash Chand & Ors.
"The following observation of the High Court of Australia in Astley v. Austrust Ltd. ((1999) 73 ALJR 403) is worthy of quoting. A finding of contributory negligence turns on a factual investigation whether the plaintiff contributed to his or her own loss by failing to take reasonable care of his or her person or property. What is reasonable care depends on the circumstances of the case. In many cases, it may be proper for a plaintiff to rely on the defendant to perform its duty. But there is no absolute rule. The duties and responsibilities of the defendant are a variable factor in determining whether contributory negligence exists and, if so, to what degree. In some cases, the nature of the duty owed may exculpate the plaintiff from a claim of contributory negligence; in other cases, the nature of the duty may reduce the plaintiff's share of responsibility for the damage suffered; and in yet other cases the nature of the duty may not prevent a finding that the plaintiff failed to take reasonable care for the safety of his or her person or property. The duty owed by the defendant, although relevant, is one only of many factors that must be weighed in determining whether the plaintiff has so conducted itself that it failed to take reasonable care for the safety of its person or property."
In this case the contributory negligence of the claimant was held to be 25%. Further the Hon'ble High Court of Karnataka in Leela Bai v. The Managing Director & Ors. decided on 13.6.2012 held the contributory negligence of the deceased who was attempting to cross the road on the flyover to be 40%. Thus in view of the above discussion the deceased had also contributed to the happening of the accident and as such his contributory negligence is apportioned as 25% and the negligence of the respondent No.1 would be 75%.
Suit No. D69/15 Page no. 13 of 30 Suresh Lata Vs Subhash Chand & Ors.
14. It was stated that due to the accident, the deceased succumbed to the injuries on 28.6.2014. From the place of accident the deceased was taken to Fortis Hospital, Sector B, Pocket 1, Vasant Kunj where his MLC was prepared. He remained admitted there till 15.6.2014 and from there he was shifted to Batra Hospital and he remained there till he died. His post mortem was conducted at Safdarjung Hospital. The post mortem report of the deceased is on record. Thus it stands established that the deceased had sustained injuries in the alleged accident. This issue is decided accordingly. Issue No.2
15. In T.O. Anthony v. Karvarnan & Ors., (2008) 3 SCC 748, it was held as under:
"6. 'Composite negligence' refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrongdoers, it is said that the person was injured on account of the composite negligence of those wrongdoers. In such a case, each wrongdoer is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrongdoer separately, nor is it necessary for the court to determine the extent of liability of each wrongdoer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence of the part of the injured which contributed to the accident is referred to as Suit No. D69/15 Page no. 14 of 30 Suresh Lata Vs Subhash Chand & Ors.
his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence."
In the present case as well though the deceased is found to have contributed to the negligence the claim for compensation by the petitioners is not defeated merely by reason of the negligence on the part of the deceased but the compensation recoverable by the petitioners would stand reduced in proportion to the contributory negligence of the deceased.
16. The petitioners are the legal representatives of the deceased being his wife and children. PW1 was crossexamined on the point of dependency and during crossexamination by the learned counsel for the insurance company PW1 stated that she was a housewife. She had 3 daughters and one son and all of them were married. Her son was living with her. She stated that her son was unemployed. She stated that they were surviving after taking loan from relatives. Thus PW1 stated that she was a housewife. She also stated that she had 3 daughters and one son and all of them were married. During examination by the Tribunal, the petitioner No.1 Smt. Suresh Lata stated that she was 63 years old. She stated that she was a housewife. She stated that she had four children namely Ms. Vinita, Ms. Veenu and Seema who were married and Shri Kishan Pal. Being the wife, the petitioner No.1 would be regarded as dependent on the deceased. The Suit No. D69/15 Page no. 15 of 30 Suresh Lata Vs Subhash Chand & Ors.
petitioners No.2, 3 and 4 being married daughters would not be regarded as dependent on the deceased. PW1 had stated that her son was living with her and was unemployed. It was also contended that the petitioner No.5 had 40% disability and copy of the disability certificate was also placed on record as per which he was an orthopaedically handicapped person with a permanent partial disability of 40% in relation to both hands. Though the petitioner No.5 was a major on the date of the accident and it cannot be said that he was not in a position to work at all but considering the facts of the case, the petitioner No.5 is regarded as dependent on the deceased. Accordingly only the petitioners No.1 and 5 would be regarded as dependent on the deceased.
17. The petitioners have claimed loss of dependency on the basis that the petitioners were the only legal heirs of the deceased who were totally dependent on the income of the deceased. It was submitted that the deceased had retired from MTNL and was drawing a monthly pension of Rs.21,000/ approximately but after his death it had been reduced to half. Besides, the deceased was taking tuitions and was earning more than Rs.15,000/ per month from tuitions and his earnings were increasing regularly. It was averred that the deceased was getting half pension due to some departmental inquiry. It was contended that if the deceased would have been alive then his pension would be more than Rs.40,000/ per month and if he had not died in the accident then his income would have been much more. It was submitted that all the petitioners were totally dependent on the income of the deceased who Suit No. D69/15 Page no. 16 of 30 Suresh Lata Vs Subhash Chand & Ors.
was a science graduate. It was contended that because of the death of the deceased in the road accident, the petitioners had suffered great mental agony, loss of love and affection, social loss and financial loss and they had not recovered from the trauma sustained by all of them due to the death of the deceased in the road accident. There was no one to look after all the petitioners and the losses suffered by the petitioners were irreparable. The petitioner No.1 had also deposed to that effect. Educational papers of the deceased are Ex.PW1/8 to Ex.PW1/10, the pension documents of the deceased are Ex.PW1/11, copy of passbook of the deceased in which he received his pension is Ex.PW1/14 (colly) and copy of covering letter and detail of last pension cheque is Ex.PW1/15 (colly).
18. During crossexamination by the learned counsel for the insurance company PW1 stated that her deceased husband was a retired Government servant from MTNL. Her deceased husband was getting pension from his department post his retirement. She stated that she was entitled for family pension after her husband's demise. She had not filed any proof regarding the income of Rs.15,000/ from tuition of her deceased husband. She had not filed any proof that her deceased husband was giving tuitions. She stated that her deceased husband was not getting full pension due to some departmental inquiry which was going on during his service tenure. She stated that they received a sum of approximately Rs.2 lacs towards accidental death from which her deceased husband used to draw his pension. Her deceased Suit No. D69/15 Page no. 17 of 30 Suresh Lata Vs Subhash Chand & Ors.
husband did not have any life insurance policy. She stated that they did not receive any money from the department of her deceased husband due to the accidental death in road accident. Thus PW1 reiterated that her deceased husband was a retired Government servant from MTNL and that he was getting pension from his department post his retirement. It is pertinent that PW1 stated that she was entitled for family pension after her husband's demise. However the petitioners have not placed on record any document to show what was the family pension being received by them after the death of the deceased. It was argued that the petitioners would get only half of what the deceased was receiving which was Rs.21,720/ as per the last payment made. However there is nothing to show the exact amount which would be received by the petitioners towards family pension though it cannot be disputed that there would be some reduction in the amount receivable by the petitioners as family pension, especially after a certain period.
19. The petitioners had also contended that the deceased was taking tuitions and earning Rs.15,000/ per month from the same. However the petitioners have not filed any documentary proof of the same and PW1 herself stated that she had not filed any proof regarding the income of Rs.15,000/ from tuition of her deceased husband nor that her deceased husband was giving tuitions. Even the names and particulars of none of the students to whom the deceased was purportedly giving tuitions have been stated and no such student or his parents have been produced in the witness box. As such Suit No. D69/15 Page no. 18 of 30 Suresh Lata Vs Subhash Chand & Ors.
there is nothing to show that the deceased was indeed taking tuitions or to show the amount which he was earning from the same. PW1 also stated that they received a sum of approximately Rs.2 lacs towards accidental death. She stated that her deceased husband did not have any life insurance policy and they did not receive any money from the department of her deceased husband due to the accidental death in road accident. However the same would be immaterial while computing the compensation to be awarded in view of the judgment of the Hon'ble Supreme Court in Vimal Kanwar & Ors. v. Kishore Dan & Ors. (2013) 7 SCC 476.
20. It is thus seen that the deceased was drawing pension and on his death the petitioners would only be entitled to family pension. The learned counsel for the petitioners had placed reliance on the judgment of the Hon'ble High Court of Delhi in Anita Devi and others v. United India Assurance Company Ltd. MAC Appeal No.653/2010 decided on 15.7.2011 wherein the pension was taken into account while computing the loss of dependency. The law in this regard is well settled. However in the instant case, no document has been proved to show what would be the family pension actually receivable by the petitioners on the death of the deceased. Further the petitioners had contended that the deceased was taking tuitions but no document has been produced to show the same or to show how much amount the deceased was earning. The documents placed on record show that the deceased had done LLB though there is nothing to show that he was practicing as an Advocate. At Suit No. D69/15 Page no. 19 of 30 Suresh Lata Vs Subhash Chand & Ors.
the same time, it would not be appropriate to compute the income of the deceased on the basis of minimum wages for a graduate prevalent on the date of the accident. Considering the facts and circumstances of the case and the difference in pension that would be receivable by the petitioners, the income of the deceased from all sources for computation of loss of dependency is taken as Rs.25,000/ per month.
21. It is the case of the petitioners that the deceased was 64 years of age at the time of the accident and PW1 had also deposed to that effect. During crossexamination by the learned counsel for the insurance company PW1 stated that her deceased husband was aged about 64 years at the time of the accident. His DOB was 03.01.1950. Copy of the documents on record show that the date of birth of the deceased was 3.1.1950. Thus the age of the deceased would be more than 64 years on the date of the accident i.e. 12.6.2014. As per the judgment of the Hon'ble Supreme Court in Sarla Verma and others v. Delhi Transport Corporation and others 2009 ACJ 1298 (SC) the multiplier of 7 applies for calculating the loss of income where the age of the deceased is 61 to 65 years.
22. As observed above the dependents on the deceased are his wife and one son. As per the judgment of the Hon'ble Supreme Court in Sarla Verma's case as there were only two dependents there would be 1/3rd deduction towards personal and living expenses of the deceased. As regards the future Suit No. D69/15 Page no. 20 of 30 Suresh Lata Vs Subhash Chand & Ors.
prospects a 3judge bench of the Hon'ble Supreme Court in a recent judgment in Munna Lal Jain and another v. Vipin Kumar Sharma and others Civil Appeal No.4497 of 2015 decided on 15.5.2015 has relied on the judgment in Rajesh and Ors. v Rajbir Singh and Ors. 2013 (6) SCALE 563 where in the Hon'ble Supreme Court held as under (in the case decided on 15.5.2015 the question was of grant of future prospects to selfemployed victim below 40 years):
"11. Since, the Court in Santosh Devi's case (supra) actually intended to follow the principle in the case of salaried persons as laid in Sarla Verma's case (supra) and to make it applicable also to the self employed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30% always; it will also have a reference to the age. In other words, in the case of selfemployed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an addition of 50% to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any. Addition should be 30% in case the deceased was in the age group of 40 to 50 years."
12.In Sarla Verma's case (supra), it has been stated that in the case of those above 50 years, there shall be no addition. Having regard to the fact that in the case of those selfemployed or on fixed wages, where there is normally no age of superannuation, we are of the view that it will only be just and equitable to provide an addition of 15% in the case where the victim is between the age group of 50 to 60 years so as to make the compensation just, equitable, fair and reasonable. There shall normally be no addition thereafter."
Suit No. D69/15 Page no. 21 of 30 Suresh Lata Vs Subhash Chand & Ors.
As such the petitioners would not be entitled to any addition towards future prospects as the deceased was more than 60 years old.
Accordingly the loss of dependency as per the monthly income i.e. Rs. 25,000/ is calculated as under :
Rs.25,000/ X 12 (annual) = Rs.3,00,000/ - Rs.1,00,000/ (i.e. 1/3rd towards personal expenses) = Rs.2,00,000/ X 7 (multiplier) = Rs.
14,00,000/. As the negligence of the deceased has been apportioned as 25%, the petitioners would be entitled to 75% of Rs.14,00,000/ i.e. Rs.10,50,000/.
23. The petitioners are also entitled to compensation for loss of love and affection, loss of consortium, loss of estate and funeral expenses. PW1 had deposed that the petitioners had spent more than Rs.6,00,000/ on the medicine and treatment of the deceased and Rs.1,00,000/ on his funeral and the petitioners had not taken any reimbursement of his medical bills nor he was having any mediclaim policy. During crossexamination by the learned counsel for the insurance company PW1 stated that her deceased husband was entitled to medical reimbursement since he was a retired government servant. She stated that they had deposited the medical bills in MTNL that had been incurred on the treatment of her deceased husband after his accident.
However, they had not received any money till date. On following up with Suit No. D69/15 Page no. 22 of 30 Suresh Lata Vs Subhash Chand & Ors.
MTNL she was informed that they would be reimbursed as per the scheduled hospital expenses. Thus PW1 stated that her deceased husband was entitled to medical reimbursement since he was a retired government servant. She stated that they had deposited the medical bills in MTNL but they had not received any money till date and that she was informed that they would be reimbursed as per the scheduled hospital expenses. However there is nothing on record to show how much amount had been reimbursed to the petitioners towards the medical bills. The petitioners had placed on record bills for an amount of Rs.5,80,824/. Considering the other expenses which would have been incurred by the petitioners during the treatment of the deceased, an amount of Rs.6,00,000/ is awarded towards the treatment of the deceased. The total compensation is determined as under:
Loss of dependency : Rs.10,50,000/
Love and affection : Rs.1,00,000/
Loss of Consortium : Rs.1,00,000/
Loss of Estate : Rs.10,000/
Treatment expenses : Rs.6,00,000/
Funeral expenses : Rs.25,000/
Total : Rs.18,85,000/
Thus, the total compensation would amount to Rs.18,85,000/.
Suit No. D69/15 Page no. 23 of 30 Suresh Lata Vs Subhash Chand & Ors. RELIEF
24. The petitioners are awarded a sum of Rs.18,85,000/ (Rs.Eighteen Lacs Eighty Five Thousand only) along with interest @ 9% per annum from the date of filing the DAR till its realization including, interim award, if any already passed against the respondents and in favour of the petitioners. Since the medical bills were still submitted for reimbursement by the petitioners from the office of the deceased, it is directed that an amount of Rs.6,00,000/ out of the awarded amount would be kept in fixed deposit in the name of the UCO Bank, Patiala House Court, New Delhi initially for a period of two years and as and when the petitioners got reimbursement of the bills or were informed that the bills would not be reimbursed, they would thereafter meet the concerned officer of the respondent No.3 who shall see the documents produced by the petitioners and shall confirm the same to the bank whereupon the UCO Bank, Patiala House Court, New Delhi shall release the amount in favour of the petitioner No.1 after deducting the amount that stood reimbursed or the entire amount in case there was no reimbursement and the interest on the fixed deposit earned by that time shall be transferred to the saving bank account of the petitioner No.1 and the amount reimbursed to the petitioners would be refunded back by the UCO Bank, Patiala House Court, New Delhi to the respondent No.3 along with interest thereon. The petitioners No.2, 3 and 4 Smt. Vineeta Choudhary, Smt. Veenu and Smt. Seema would be entitled to 10% share each in the awarded amount minus the amount of Rs.6,00,000/.
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The petitioner No.5 Shri Kishan Pal would be entitled to 20% share and the petitioner No.1 Smt. Suresh Lata would be entitled to 50% share in the awarded amount minus the amount of Rs.6,00,000/.
25. 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 judgment the award amount is to be disbursed as follows:
a) The entire share of the petitioners No.2, 3 and 4 be released to them by transferring it into their savings account in UCO Bank, Patiala House Court;
50% of the share of the petitioner No.5 be released to him by transferring it into his savings account in UCO Bank, Patiala House Court and the remaining 50% be kept in FDR for a period of 2 years; 20% of the share of the petitioner No.1 be released to her by transferring it into her savings account and the remaining amount out of her share be kept in FDRs in UCO Bank, Patiala House Court, New Delhi in the 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.
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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.
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.
b) The respondent No.3 is directed to deposit the amount directly by way of crossed cheque in terms of the above order in UCO Bank, Patiala House Court, New Delhi in the name of UCO Bank, Patiala House Court, New Delhi A/c Smt. Suresh Lata, Smt. Vineeta Choudhary, Smt. Veenu, Smt. Seema and Shri Kishan Pal Singh within 30 days of the passing of the award.
c) Cheque be deposited within thirty days herefrom under intimation to the petitioners. In case of default, the respondent No.3 shall be liable to pay further interest @ 12% per annum for the period of delay.
d) On the deposit of the award amount, the Branch Manager of UCO Bank, Patiala House Court, New Delhi is directed to prepare Fixed Deposit Receipts as ordered above and the balance amount be released.
e) The interest on the fixed deposits shall be paid monthly by automatic credit of interest in the savings account of the petitioner No.1.
Suit No. D69/15 Page no. 26 of 30 Suresh Lata Vs Subhash Chand & Ors. f) The withdrawal from the aforesaid account shall be permitted to the
petitioner No.1 after due verification and the bank shall issue photo identity card to the petitioner No.1 to facilitate her identity.
g) No cheque book shall be issued to the petitioner No.1 without the permission of the court.
h) The original fixed deposit receipts shall be retained by the bank in safe custody. However, the original pass book shall be given to the petitioner No.1 along with the photocopy of the fixed deposit receipts. Upon the expiry of period of FDR the bank shall automatically credit the maturity amount in the saving account of the beneficiary.
i) The original fixed deposit receipts shall be handed over to the petitioner No.1 on the expiry of the period of the fixed deposit receipts.
j) No loan, advance, or withdrawal shall be allowed on the said FDRs without the permission of the court.
k) On the request of the petitioners, the bank shall transfer the saving account to any other branch/bank, according to the convenience of the petitioners.
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l) The petitioners 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, New Delhi.
26. 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, 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 their complete address as well as address of their counsel for sending the notice of deposit of the award amount.
APPORTIONMENT OF LIABILITY:
27. The respondent No.1 is the driver, the respondent No.2 is the owner and the respondent No.3 is the insurer of the offending vehicle. Thus all the respondents are held jointly and severally liable. No evidence has been led on behalf of the insurance company. The respondent No.3 i.e. IFFCO TOKIO General Insurance Co. Ltd. being the insurer in its reply had submitted that the alleged offending vehicle i.e. the car bearing No.PB10CW1200 was insured with the respondent No.3 with effect from 12.12.2013 to 11.12.2014 vide policy Suit No. D69/15 Page no. 28 of 30 Suresh Lata Vs Subhash Chand & Ors.
No.86064996. The respondent No.3 has not led any evidence to show that there was any violation of the rules and terms of the policy by the respondents No.1 and 2 and in fact the duly verified documents in respect of the offending vehicle were placed on record with the DAR. Accordingly the respondent No.3 being the insurer in respect of the offending vehicle is directed to deposit the award amount in the bank account of the claimants in UCO Bank, Patiala House Court, New Delhi within 30 days of the passing of the award with interest at the rate of 9% from the date of filing the DAR till its realization failing which it is liable to pay interest at the rate of 12% per annum for the period of delay.
28. 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. The respondent No.3 shall deposit the award amount along with 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 along with proof of deposit of award amount, the notice of deposit and the calculation of interest on 5.4.2016.
An attested copy of the award be given to the parties (free of cost) and a copy be also sent to the Nodal Officer, UCO Bank, Patiala House and to the concerned court and to Learned Secretary, NDDLSA.
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Suresh Lata Vs Subhash Chand & Ors.
File be consigned to Record Room.
Announced in open court
on this 4th day of January, 2016 (GEETANJLI GOEL)
PO: MACT2
New Delhi
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Suresh Lata Vs Subhash Chand & Ors.