Indian Kanoon - Search engine for Indian Law

Delhi District Court

Smt. Varsha Rani vs Sh. Rajesh Singh (Driver) on 4 March, 2014

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

                                 215/DAR/13

IN THE MATTER OF :

             1. Smt. Varsha Rani, (Widow) (Age 33 yrs.)
                W/o late Sh. Ashwani Kumar,

             2. Kumari Anamika (Daughter) (Age 13 yrs.)
                D/o late Sh. Ashwani Kumar

             3. Kumari Sanjana (Daughter) (Age 11 yrs.)
                D/o late Sh. Ashwani Kumar

             4. Master Veer (Son) (Age 6 yrs.)
                S/o late Sh. Ashwani Kumar

               All R/o R/o Village Futa Talab,
               Tehsil Rupbas, Distt. Bharatpur,
               Rajasthan.

             5. Sh. Nand Lal (Father) (Age 62 yrs.)
                S/o Sh. Tulsi Ram,

             6. Smt. Nand Rani (Mother) (Age 59 yrs.)
                W/o Sh. Nand Lal

               Both R/o Bankey Bihari Mohalla,
               Bharatpur, Rajasthan.

                                                             ...    Claimants

                                Versus


      1. Sh. Rajesh Singh (Driver)
         S/o Sh. Dharamvir Singh,
215/DAR/13          Smt. Versha Rani & Ors. v. Sh. Rajesh Singh & Ors.   Page 1 of 16
              R/o W2-890, Near Bata Chawk,
             Palam Village, New Delhi-45.

        2. DTC (Owner)
           Central Workshop-I,
           B.B. Marg, Kingsway Camp.

        3. United India Ins. Co. Ltd. (Insurer)
           D.O. No. XI, E-85, Himalaya House,
           8th Floor, Kasturba Gandhi Marg,
           New Delhi-1.


                                                             ...     Respondents

FILED ON                                   :        07.06.2013
RESERVED ON                                :        03.03.2014
DECIDED ON                                 :        04.03.2014



                      -:       JUDGMENT                         :-

1. This D. A. Report is filed by the Investigating Officer in FIR. No. 153/13 registered at P.S. Dabri under Section 279/304 A of IPC in which the claimant had suffered fatal injuries in a road traffic accident on 20.03.13.

2. Respondent No. 1 is the driver, Respondent No. 2 is the owner and Respondent No. 3 is the insurer of the offending vehicle.

3. A perusal of the charge-sheet shows that the 215/DAR/13 Smt. Versha Rani & Ors. v. Sh. Rajesh Singh & Ors. Page 2 of 16 Investigating Officer had recorded statement of one Sh. Jameel Ahmad who had stated that he is having a Tea Shop at Palam Dabri Road, near Shani Mandir, and on 20.03.13, at around 5.45 p.m., he was at his shop when he saw a yellow motorcycle coming from Dabri. At that time one DTC Bus was going towards Manglapuri side. The bus driver was driving the bus in a rash and negligent manner and hit the motorcyclist from behind. As a result of this, the motorcyclist came under the bus and his motorcycle fell on the other side. He stated that the motorcyclist was crushed under the rear tyre of the bus and the bus dragged him for nearly 15 ft. He stated that he and several other persons shouted and stopped the offending vehicle. The DTC Bus driver was caught at the site and somebody called police at No. 100 and the Investigating Officer came to the place of accident and recorded statement of this witness.

4. Notice of this report was issued to all the parties.

5. A common written statement was filed by Respondent No. 1 and 2 stating therein that the bus in question was insured with Respondent No. 3. Therefore, liability, if any, to pay the compensation is of Respondent No. 3.

6. It is further stated that Respondent No. 1 had a valid driving license and accident was not due to negligence of Respondent No. 1 and therefore, 215/DAR/13 Smt. Versha Rani & Ors. v. Sh. Rajesh Singh & Ors. Page 3 of 16 Respondent No. 1 and 2 are not liable to pay any compensation to claimants.

7. It is stated that the deceased was coming on his motorcycle at a very high speed which was almost out of control of the deceased and the motorcycle touched with someone as a result of which motorcyclist slipped on the road and touched back portion of the conductor side of the bus and sustained injuries.

8. Therefore, it was prayed that claim petition is liable to be dismissed.

9. On behalf of insurance company, a legal of Rs. 13,24,216/- was given.

10. This offer was not acceptable to the claimants.

11. Therefore, following issues were framed to decide the compensation payable to the claimants:-

1) Whether Shri Ashwani Kumar S/o Shri Nand Lal sustained fatal injures in a motor vehicle accident on 20.03.2013 caused due to rash or negligent driving of vehicle bearing No. DL-1PC-Q681 being driven by Respondent No. 1, owned by Respondent No. 2 and insured by Respondent No. 3? OPP

2) Whether the claimants are entitled to claim compensation, if so, what amount and from whom?

OPP

3) Relief.

12. Widow of the deceased entered in the witness box as PW-1 and stated that on 20.03.13, at about 5.45 p.m. her husband was going by his motorcycle on Palam Dabri Road when DTC Bus bearing no. DL-1PC- 7681, Route No. 721 going towards Manglapuri driven by its driver in a rash and negligent manner hit her husband who as a result of this accident suffered fatal injuries. She stated that the deceased has left behind herself as his widow and two minor daughters aged 13 and 11 years and one minor son aged 6 years, her father-in-law aged 60 years and her mother-in-law aged 55 years and all of them were financially dependent on the deceased.

13. She further stated that the age of the deceased at the time of accident was 35 years (D.O.B. 28.08.1978); he was doing business of jewellery being proprietor of M/s. Ashu Jewelers at Panchayat Shop, Tehsil Roopwas, District Bharatpur, Rajasthan; he was earning Rs. 25,000/- per month; his earnings were increasing day by day and if he was alive, he would have earned much more in future.

14. She stated that she has spent Rs. 1 lac on last rites of her husband. She proved as Ex. PW1/1 and 2 educational qualification certificates of her husband, her Voter Card as Ex. PW1/3, Voter Card of parents of the deceased as Ex. PW1/4 and 5, Birth Certificates of 215/DAR/13 Smt. Versha Rani & Ors. v. Sh. Rajesh Singh & Ors. Page 5 of 16 her three children as Ex. PW1/6, 7 and 8, documents showing that the children are studying in schools as Ex. PW1/9 and 10 and rent receipts of the shop as Ex. PW1/11.

15. In cross-examination by counsel for insurance company, she admitted that she is not an eye witness to the accident and she has no documentary evidence to show that her husband was earning Rs. 25,000/- per month. She deposed that she does not know whether deceased was maintaining statement of accounts of his business or not.

16. In cross-examination, she proved her Ration Card as Ex. PW1/D3.

17. She deposed that they had shifted to Delhi that is why their names were cut of from the Ration Card, Ex. PW1/D3.

18. Other suggestions contrary to her case were denied by her.

19. Father of the deceased entered in the witness box as PW-2 and proved ledger book maintained by deceased as Ex. PW2/1, ledger book from April, 2010 to March, 2011 was proved as Ex. PW2/2 and ledger book from April, 2011 to March, 2012 was proved as Ex. PW2/3.

20. In cross-examination, he admitted that name of the deceased is not mentioned on the exhibited documents but he stated that these ledger books are in 215/DAR/13 Smt. Versha Rani & Ors. v. Sh. Rajesh Singh & Ors. Page 6 of 16 the hand writing of the deceased himself. He admitted that he has no documentary evidence to show that his son had a jewelers shop. He stated that initially shop remained closed for four/five months but now he was running the said shop. He also stated that the deceased was not filing any ITR.

21. On the basis of pleadings of parties, evidence on record and arguments addressed, issue wise findings are as under:-

22. Burden of proving this issue is on the claimants.

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

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

25. Investigating Officer has recorded statement of an eye witness which is mentioned in the charge- sheet where he has clearly attributed allegations of negligent driving against Respondent No. 1.

26. Respondent No. 1 and 2 have filed their written statement alleging that the accident was due to negligence of deceased himself but Respondent No. 1 did not enter in the witness box to prove the defence taken by him in his written statement.

27. Police after investigation has filed charge- sheet against Respondent No. 1 under Section 279 and 304 A of IPC which is also prima facie suggestive of negligence of Respondent No. 1 in driving the vehicle at the time of accident.

28. 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 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"

29. 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 215/DAR/13 Smt. Versha Rani & Ors. v. Sh. Rajesh Singh & Ors. Page 8 of 16 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 judgments in Parmeshwari v. Amir Chand (2011) 11 SCC 635 and Kusum Lata v.

Satbir, (2011) 3 SCC 646."

30. 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 215/DAR/13 Smt. Versha Rani & Ors. v. Sh. Rajesh Singh & Ors. Page 9 of 16 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 charge- sheet under Sections 279/304-A, 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."

31. This judgment was again followed by the Hon'ble High Court of Delhi in the case of New India Assurance Co. Ltd. Vs. Sakshi Bhutani & Ors., 2013 (2) TAC 331 Delhi and in the case of New India Assurance Co. Ltd. Vs. Dayal Singh & Ors., MAC App. No. 419/2010 dated 07.03.2013.

32. This case was noticed by Hon'ble High Court of Delhi in the case titled as Cholamandalam M.S. General Insurance Co. Ltd. v. Kamlesh: 2009 (3) 215/DAR/13 Smt. Versha Rani & Ors. v. Sh. Rajesh Singh & Ors. Page 10 of 16 AD (Delhi) 310 where adverse inference was drawn because the driver of the offending vehicle had not appeared in the witness box to corroborate his defence taken in the written statement. It was noted that there is nothing on record to show that the claimant had any enmity with the driver of offending vehicle so as to falsely implicate him in the case.

33. Therefore, this issue is decided in favour of claimants and against the respondents.

34. Learned Counsel for claimants argued that the fact that deceased had a jewelers shop is sufficient to show that he must be earning Rs. 25,000/- per month.

35. However, in alternate he argued that claimant was a Matriculate and wages of a Matriculate on the date of accident were Rs. 8,814/-.

36. In absence of evidence of income of the deceased, his income shall be considered as Rs. 8,814/- per month.

37. Claimant has left behind six claimants.

38. Even if father of the deceased is not treated as a dependent, still there are five claimants and deduction for personal expenses would be 1/4th. Once Rs. 2,203.5 is deducted from Rs. 8,814/-, loss for the claimants would be Rs. 6,610.50 per month.

39. Since deceased was less then 40 years of 215/DAR/13 Smt. Versha Rani & Ors. v. Sh. Rajesh Singh & Ors. Page 11 of 16 age, compensation to an extent of 50% of his earnings is also to be given for loss of future prospects.

40. For granting compensation for loss of future prospects, reliance can be placed on ICICI Lombard General Insurance Co. Ltd. v. Angrez Singh & Ors., MAC APP. No. 846/11 dated 30.09.13.

41. Once 50% is added to this amount, the monthly loss for the claimants would be Rs. 9,915.75 which can be rounded of to Rs. 10,000/- per month or Rs. 1,20,000/- p.a.

42. As claimant was 35 years of age, multiplier of 16 will apply and total loss for the claimants would be Rs. 19,20,000/-.

43. Additionally, relying on Rajesh & Others Vs. Rajbir Singh & Others, 2013(6) SCALE 563 widow of the deceased is awarded a compensation of Rs.1,00,000/- for Loss of Consortium, minor children of the deceased are awarded a compensation of Rs. 1,00,000/- for Loss of Care and Guidance and claimants are also awarded a compensation of Rs. 25,000/- for Cremation Charges. The claimants are also awarded a compensation of Rs. 10,000/- for Loss of Estate.

44. Thus, total compensation payable to the claimants would be Rs. 21,55,000/- which shall be payable within 30 days with interest @ 7.5% per annum from the date of filing of this claim petition i.e. 215/DAR/13 Smt. Versha Rani & Ors. v. Sh. Rajesh Singh & Ors. Page 12 of 16 07.06.2013 till its realization.

45. Compensation awarded vide interim award, if any, shall also be deducted from this amount.

46. Insurance company has not proved any statutory defence.

47. Therefore, compensation shall be deposited by the Insurance Company within 30 days from today under intimation to claimants as well as to their counsel by registered post.

48. In case even after passing of 90 days Insurance Company fails to deposit this compensation, it shall be recovered by attaching its bank account with a cost of Rs. 5,000/- as per directions of the Hon'ble High Court of Delhi in the case of New India Assurance Co. Ltd. v. Kashmiri Lal & Ors., 2007 ACJ 688.

49. Financial needs of the widow of the deceased were noted. Therefore, following directions are given for apportionment of compensation:-

(1) Rs. 5 lacs, out of the total compensation awarded with proportionate interest, shall be payable in favour of Claimant No. 1, widow of the deceased. This amount shall be deposited by the insurance company with SBI, Dwraka Courts, New Delhi in the name of Smt. Varsha Rani. The compensation shall be released immediately without any precondition of FDR.

(2) Rs. 5 lacs, out of the total awarded compensation with proportionate interest, 215/DAR/13 Smt. Versha Rani & Ors. v. Sh. Rajesh Singh & Ors. Page 13 of 16 shall be payable in favour of Claimant No. 2, minor daughter of the deceased. This payment shall be deposited by the Insurance Company with SBI, Dwarka Courts, New Delhi in the name of Anamika.

This compensation will be kept in an FDR till the time she attains the age of 21 years. Monthly interest will be credited in the Saving Bank Account of Claimant No. 1 so that she can use it for maintenance of Claimant No. 2.

(3) Rs. 5 lacs, out of the total awarded compensation with proportionate interest, shall be payable in favour of Claimant No. 3, minor daughter of the deceased. This payment shall be deposited by the Insurance Company with SBI, Dwarka Courts, New Delhi in the name of Sanjana. This compensation will be kept in an FDR till the time she attains the age of 21 years. Monthly interest will be credited in the Saving Bank Account of Claimant No. 1 so that she can use it for maintenance of Claimant No. 3.

(4) Rs. 5 lacs, out of the total awarded compensation with proportionate interest, shall be payable in favour of Claimant No. 4, minor son of the deceased. This payment shall be deposited by the Insurance Company with SBI, Dwarka Courts, New Delhi in the name of Veer. This compensation will be kept in an FDR till the time he attains the age of 21 years. Monthly interest will be credited in the Saving Bank Account of Claimant No. 1 so that she can use it for maintenance of Claimant No. 4.

(5) Rs. 1,55,000/-, with proportionate interest out of the total compensation awarded, shall be payable in favour of Claimant No. 6, Mother of the deceased. This amount shall be deposited by the insurance company with SBI, Dwraka Courts, New Delhi in the name of Smt. Nand Rani. This compensation shall be released forthwith considering the fact that husband of Claimant No. 6 is a well informed person and there is no apprehension of this compensation being dissipated or exploited.

(6) All the original FDRs shall remain with the bank. Only copies thereof will be given to the claimants. However, pass book will be given to the claimants. No cheque book shall be issued to the claimants.

(7) No loan or advance will be given against these deposits.

(8) FDRs shall not be prematurely encashed without leave of this Tribunal.

50. Nazir of this court will also send intimation of deposit of compensation to the claimants as well as to their counsel.

51. Address of Counsel for Claimants is as under:-

Sh. Manoj Kumar Rai, Advocate, Chamber No. 604, Dwarka Court, New Delhi. Ph.No. 9868049072

52. Ahlmad will put up this file with report from 215/DAR/13 Smt. Versha Rani & Ors. v. Sh. Rajesh Singh & Ors. Page 15 of 16 Nazir regarding deposit of compensation again on 01.06.2014.

53. Copy of this order be given to all the parties.

54. File be consigned to the Record Room.

Announced in the Open Court.

On the 04th day of March, 2014 (ARUN BHARDWAJ) PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNAL-II DWARKA COURTS, NEW DELHI.