Delhi District Court
Poonam Devi & Others vs . Kewal Krishan & Others on 19 July, 2014
MACP No.331/10
Poonam Devi & others Vs. Kewal Krishan & others
IN THE COURT OF SHRI DEEPAK JAGOTRA, PRESIDING
OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNAL (01),
DWARKA COURTS, NEW DELHI
In the matter of: Poonam Devi & others Vs. Kewal Krishan &
others
MACT NO.331/10
1. Smt. Poonam Devi W/o Late Sh. Rakesh Shokeen
2. Himanshi Shokeen D/o Late Sh. Rakesh Shokeen
3. Pranjal S/o Late Sh. Rakesh Shokeen
All R/o House No.1000, Village Chhawla, New Delhi
.......... Petitioners
Versus
1. Kewal Krishan S/o Shri Tara Chand (Driver)
R/o Subhan Pur, District Bhagpat, UP
2. Naveen Dutt Sharma (Owner)
S/o Shri Kishan Dutt Sharma
R/o 195, Gharonda Neemka Bangar,
Patparganj Village, Delhi91
3. IFFCOTOKIO General Insurance Company Ltd.
FAI Building, 10, Shaheed Jeet Singh Marg,
New Delhi110067
(Insurance Company)
........ Respondents
Date of institution: 24122010 Issues framed on:20102012 Reserved for judgment on: 24052014 Date of judgment: 19072014 Page No. 1 /14 MACP No.331/10 Poonam Devi & others Vs. Kewal Krishan & others (FATAL CASE) AWARD/ JUDGMENT:
1. In the present case, the petitioners Poonam Devi (Wife), Himanshi (Daughter) and Pranjal (Son) of deceased Rakesh Shokeen are claiming compensation from the respondents under the provisions of Motor Vehicles Act, 1988.
2. The brief facts relevant for the disposal of the present case may now be indicated.
3. On 30062009 Shri Rakesh Shokeen met with an accident with offending vehicle bearing registration no.DL13SB 3083 being driven by its driver R1 in rash and negligent manner and hit the deceased. As a result of the impact, the deceased fell down on the road and sustained fatal injuries.
4. I have heard both the sides and carefully perused the record of the case.
5. It is submitted on behalf of the petitioners that deceased was the husband of petitioner no.1, who was the sole bread earner of the family. It is further submitted that he was doing government job and earning about Rs.30,000/ per month. It is further submitted that suitable amount may be awarded in favour of the petitioners and against the respondents.
6. On the other hand, learned counsel for the insurance company has opposed the submissions made by the learned counsel for the petitioners and prays for dismissal of the case.Page No. 2 /14 MACP No.331/10
Poonam Devi & others Vs. Kewal Krishan & others
7. Recapitulation of the sequence of events would be appropriate at this stage.
8. This petition was filed on 24122010. Despite service, R2 has not appeared and he was proceeded ex parte on 19022011 and despite service through publication, R1 has not appeared and he was proceeded ex parte on 20102012. Insurance company (R3) has filed its Written Statement on 19022011. Issues were framed on 20 102012.
9. In order to prove their case, the claimants have examined as many as three witnesses. PW1 Smt.Poonam Devi W/o deceased Rakesh Shokeen, PW2 Shri Surender Kumar, who is the eye witness of the incident and PW3 Ct. Sandeep Chaudhary from DCP Office, PS Parliament Street, New Delhi and they closed their evidence on 25012014.
10. No evidence was led on behalf of the respondents/ insurance company.
11. On the pleadings of the parties, following issues were framed:
(1). Whether deceased Rakesh Shokeen sustained fatal injuries in a motor vehicle accident dtd.30/06/2009 due to rash and negligent driving of vehicle no.DL13SB3083 by R1?... OPP (2). Whether the petitioners are entitled to claim compensation, if so, what amount and from whom? ... OPP (3). Relief.
FINDINGS ON ISSUE NO.1;
Page No. 3 /14 MACP No.331/10Poonam Devi & others Vs. Kewal Krishan & others
12. In order to prove their case, PW1 Smt. Poonam Devi who is the wife of deceased in her testimony stated that on 3006 2009, her husband was coming from Barakhamba Road on his motorcycle bearing registration no.DL9SN2380. She further stated that when he reached near Syndicate Bank Village Chhawla, Delhi suddenly offending motorcycle bearing registration no.DL13SB 3083 being driven by its driver R1 at a high speed came from the wrong side in a rash and negligent manner hit the motorcycle of her deceased husband. She has further stated that one person namely Surender saw this accident who brought him to her house. She has proved the charge sheet as Ex.PW1/5, FIR Ex.PW1/6, site plan Ex.PW1/7, Mechanical Inspection Report Ex.PW1/8, arrest memo Ex.PW1/9, MLC Ex.PW1/10 and Postmortem Report Ex.PW1/11.
13. PW2 Shri Surender Kumar who is an eye witness has been examined in the court and he has given the same account of events as stated by PW1 Smt. Poonam Devi except that in the cross he has stated that the offending vehicle had hit the motorcycle of the deceased from the side. The sequence of events and the manner in which accident had taken place as narrated by the eye witness are liable to be believed.
14. During the course of arguments, learned counsel for insurance company has stressed that since it was a head on collision having equal strength and equal weight, the impact is same on both the vehicles, therefore, there is contributory negligence on the part of the deceased.
Page No. 4 /14 MACP No.331/10Poonam Devi & others Vs. Kewal Krishan & others
15. There is no force in the submissions made by the counsel for insurance company for the simple reason that eye witness Surender Kumar in his cross examination has clearly stated that the offending vehicle had hit the motorcycle of the deceased from the side. The site plan Ex.PW1/7 also does not reflect that it was a head on collision. Since the eye witness has stated that the offending vehicle had hit the deceased from side, the manner in which accident had happened cannot be doubted and it cannot be said that it was a head on collision, therefore, the question of contributory negligence does not arise.
16. Learned counsel for insurance company further argued that there is a delay in lodging FIR and the offending vehicle is planted.
17. There is no strength in the arguments advanced by the learned counsel for insurance company as the delay in lodging FIR shall not in any manner affect the present case as the present case is not to be proved beyond reasonable doubt. The question of offending vehicle being planted does not arise as firstly the eye witness has disclosed the offending vehicle and its number and secondly, the driver of the vehicle has not lodged any complaint before any forum for his wrong involvement in the case. Driver was arrested in the case and was charge sheeted. The criminal record of the case further supports and corroborates the case of the petitioner.
18. It is a settled law that in a claim petition, the claimant need not to prove the happening of events beyond reasonable doubt Page No. 5 /14 MACP No.331/10 Poonam Devi & others Vs. Kewal Krishan & others and the Rule of Preponderance of Probability would apply in such cases. The relevant portion of judgment titled as Bimla Devi & Others Versus Himachal Road Transport Corporation & Others (2009) 13 SCC 513, it has been observed that in a road accident, the strict principles of proof as in a criminal case are not attracted. Relevant portion of the judgment is reproduced as under: ''15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary 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. For the said purpose, the High Court should have taken into consideration the respective stories set forth by both the parties.''
19. Keeping in view the entire conspectus of facts and circumstances of the matter, this issue is decided in favour of the petitioners and against the respondents.
FINDINGS ON ISSUE NO.2;
20. This brings us to fixation of quantum of compensation which may be awarded in favour of the petitioners and against the respondents who are jointly or severely liable to make good the Page No. 6 /14 MACP No.331/10 Poonam Devi & others Vs. Kewal Krishan & others payment. Since the vehicle was insured with respondent no.3, therefore, they are primarily responsible to make the payment which may be awarded in the later part of the judgment.
21. During the course of the arguments, learned counsel for insurance company has raised an issue that since admittedly the petitioner/ wife of the deceased has got the employment on compassionate ground from the department of her husband, therefore, amount received as monthly salary by her shall be deducted from the claim.
22. This issue has been squarely dealt with by our own High Court in MAC Appeal No.359/04 in a case titled as Oriental Insurance Company Limited Vs. Arun Bala wherein the Hon'ble High Court has been pleased to observe that the judgment in Bhakra Beas relied upon by the learned counsel for the insurance company is not attracted rather the earlier judgment in Gobald Motor, Helen C. Rebello and Patricia Jean Mahajan are binding precedents.
23. It is further observed that on the basis of the ratio in Helen C. Rebello and Patricia Jean Mahajan it can be safely concluded that only those amounts which are payable to the claimants only by reason of death or injury in an accident are liable to be deducted. In the present case also it is nowhere the case of the respondents that the deceased widow got an employment on account of accidental death. It is pointed out that there is an office memorandum no.14014/6/94Estt (D), dated 09101998 issued by the Government of India which provides for an appointment on Page No. 7 /14 MACP No.331/10 Poonam Devi & others Vs. Kewal Krishan & others compassionate ground to a dependent family member of a Govt. servant dying in harness or who has retired on medical grounds. Thus, the First Respondent got an employment not on account of accident death but for other reasons as per the policy of the government.
24. In view of the above discussion, the amount received as salary by the deceased widow is not entitled to any deduction.
INCOME & PROFESSION
25. In order to fix the quantum of compensation, the income of the deceased shall have to be assessed first which is also called Multiplicand.
26. In the present case, as per PW1 Smt. Poonam Devi, her deceased husband was working as a Constable in Delhi Police and used to earn Rs.30,000/ pm. PW3 Ct. Sandeep Chaudhary, DCP Office, PS Parliament Street has come in the witness box and proved the computer generated salary slip for the month of May, 2009 which is Ex.PW3/1. Salary slip of June, 2009 shows that the deceased was drawing a salary of Rs.15,458/ pm out of which Transport Allowance of Rs.732/, washing allowance of Rs.60/, Metro Pass Allowance of Rs.120/ and conveyance allowance of Rs.60/ shall be deducted as they are for the personal use and consumption of the deceased. Reliance is placed on judgment MAC App.No.286/2012 of our own High Court. Therefore, his salary comes to Rs.14,486/ pm which makes his annual salary as Rs.1,73,832/ (one lac seventy three Page No. 8 /14 MACP No.331/10 Poonam Devi & others Vs. Kewal Krishan & others thousand eight hundred & thirty two rupees only).
AGE
27. As per identity card of the deceased Ex.PW1/12, his date of birth has been shown as 05041981, which makes deceased 28 years of age as on the date of accident.
FUTURE PROSPECTS
28. Having regard to the age of the deceased which is 28 years at the time of accident, regard shall be had towards his future prospects as his income could have been increased due to change in the economic scenario in its entirety. Therefore, keeping in view his future prospects, there may be a 50% increase in his annual income towards the future prospects keeping in view Sarla Verma case.
NUMBER OF DEPENDENTS
29. Now out of this annual income, he would have spent on himself and his family by way of personal and living expenses. Admittedly, the deceased has left behind three legal heirs namely Smt. Poonam Devi (wife), Himanshi (Daughter) and Pranjal (son). Therefore, 1/3rd deduction has to be made on account of personal and living expenses as per Sarla Verma's case.
MULTIPIER
30. Multiplier of 17 is taken keeping in view the age of the deceased which was 28 years at the time of the accident in view of Page No. 9 /14 MACP No.331/10 Poonam Devi & others Vs. Kewal Krishan & others Sarla Verma's case.
LOSS OF DEPENDENCY
31. Now the annual contribution to the family when multiplied by a multiplier shall give us the loss of dependency to the entire family.
(a) Salary of deceased as on the date of accident,i.e.30062009 Rs. 14,486/ pm
(b) 50% addition towards future prospects Rs. 7243/ Total: Rs. 21,729/ rd
(c) 1/3 deductions on personal living expenses Rs.7243/ Total: Rs.14,486/
32. The break up of compensation that has been awarded in favour of the petitioners have been tabulated as below;
S.No. Head Amount
1. Loss of dependency (Rs.14,486/X12 X17) Rs.29,55,144/
2. Loss of love and affection* Rs.1,00,000/
3. For funeral expenses ** Rs.25,000/
4. Loss of estate *** Rs.10,000/
5. Loss of consortium Rs.1,00,000/
TOTAL Rs.31,90,144/
Under the head of loss of love and affection only 1,00,000/ (in total to the claimant) is granted. MAC appeal no. 743/2012 Chandra Kala & anr. Vs. Satpal & ors. decided on 11.09.2013 is relied upon.
**'Funeral expenses' in the absence to contrary for hire expenses, to award at least an amount of Rs. 25,000/ ***'loss of consortium' amounting to Rs. 1,00,000/ after applying Page No. 10 /14 MACP No.331/10 Poonam Devi & others Vs. Kewal Krishan & others the ratio of the judgment of Rajesh & ors.
INTEREST
33. There is no material on record to withhold the interest and as such, the petitioners are awarded interest @ Rs. 7.5% per annum from the date of filing of petition i.e. 24122010 till realization.
APPORTIONMENT
34. As far as wife of deceased is concerned, she is entitled to more share than others as she has full life ahead of her. As far as, children of deceased are concerned, they are minor and they are also entitled to some portion of the compensation amount.
LIABILITY
35. No evidence has been led on behalf of the respondents including the insurance company. Admittedly the offending vehicle was being driven by R1 which was owned by R2 and the same was insured with R3. R1 is the principal tort feasor and R2 & R3 are vicariously liable. All the respondents are held jointly and severally liable to pay the awarded amount. Since the offending vehicle was insured at the time of accident with R3, therefore, it shall pay the awarded amount.
36. In view of the above discussions, issue no. 2 is decided in favour of the petitioners and against the respondents.
RELIEF Page No. 11 /14 MACP No.331/10 Poonam Devi & others Vs. Kewal Krishan & others
37. In view of the foregoing reasons and discussions, the petitioners are awarded the total amount of Rs.31,90,144/(Rupees Thirty one lacs ninety thousand one hundred forty four rupees only) with interests.
38. The awarded amount be deposited by R3 with State Bank of India, Dwarka Court Complex Branch, Sector 10, Dwarka, New Delhi within 30 days from today in the respective names of the petitioners either directly or through RTGS or by NEFT mode (IFSC Code SBIN0011566) under intimation with proof of notice to the claimants & their counsel to the Nazir of this Court. Bank Manager of State Bank of India, Dwarka Court Complex, Sector10, New Delhi is directed to release and keep some amount of the petitioners in their respective accounts as shown in the following manner: S. Names Status Total Released FDR Amount Period of No. Entitlement Amount FDR amount 1 Smt.Poonam Widow Rs.16,90,144/ Rs.6,90,144/ Rs. 10,00,000/ 5 year Devi 2 Himanshi daughter Rs.7,50,000/ nil Rs. 7,50,000/ Till she attains the Shokeen age of 18 years 3 Pranjal Son Rs.7,50,000/ nil Rs.7,50,000/ Till he becomes major
39. The beneficiaries shall furnish all the relevant documents for opening of the respective saving bank accounts.
40. The interest on the aforesaid fixed deposits shall be paid monthly by automatic credit of interest in the respective Savings Page No. 12 /14 MACP No.331/10 Poonam Devi & others Vs. Kewal Krishan & others Accounts of the beneficiaries.
41. Withdrawal from the aforesaid account shall be permitted to the beneficiaries after due verification and the Bank shall issue photo Identity Cards to the beneficiaries to facilitate identities.
42. No cheque books shall be issued to the beneficiaries without their permission of this Court.
43. The original fixed deposit receipts shall be retained by the Bank in the safe custody. However, the original Pass Book shall be given to the beneficiaries along with the photocopy of the FDRs. Upon the expiry of the period of each FDR, the Bank shall automatically credit the maturity amount in the Savings Accounts of the beneficiaries.
44. No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the prior permission of this court.
45. On the request of the beneficiaries, Bank shall transfer the saving accounts to any other branch according to their convenience.
46. R3 shall inform the petitioners as well as their counsel through registered post that the cheques of the awarded amount are being deposited so as to facilitate the petitioners to know about their deposits in their accounts.
47. Copy of the award be supplied to both the parties at free of cost. Copy of this award be sent to the Nodal Officer of the Bank alongwith the Court stamped, copy of the photographs and signatures Page No. 13 /14 MACP No.331/10 Poonam Devi & others Vs. Kewal Krishan & others of the claimants.
48. Thus, the petition has been disposed of accordingly.
49. File be consigned to Record Room.
Announced in the open court on 19th July, 2014 (1+1) (DEEPAK JAGOTRA) PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNAL(01) DWARKA COURTS, NEW DELHI Page No. 14 /14