Delhi District Court
Shri Rajender Kumar vs Shri Raj Kumar on 8 April, 2015
IN THE COURT OF MS. GEETANJLI GOEL, PO: MOTOR ACCIDENT
CLAIMS TRIBUNAL2, PATIALA HOUSE COURTS, NEW DELHI
Suit No.510/14
Date of Institution: 27.08.2014
IN THE MATTER OF:
1. Shri Rajender Kumar
S/o Shri Sitam Ram
2. Smt. Daya @ Dayawati
W/o Shri Rajender Kumar
Both R/o:
H. No.D72, Shakurpur
Saraswati Vihar
Delhi 110034. ...Petitioners
Versus
1. Shri Raj Kumar
S/o Shri Ram Narayan
R/o H.No.B412, H4, N30
Jahangirpuri, Delhi.
Also Permanent R/o:
Badamtala, Burdwan
West Bengal.
2. Pushpa
W/o Shri Praveen Sehrawat
R/o H.No.823, Dada Rishi Wali Gali
Mahipal Pur
Suit No. 510/14 Page no. 1 of 35
Rajender Kumar Vs Raj Kumar & Ors.
New Delhi 110037.
3. The New India Assurance Co. Ltd.
Jeewan Raksha Building
Asaf Ali Road
New Delhi 110002. ...Respondents
Final Arguments heard : 11.03.2015 Award reserved for : 08.04.2015 Date of Award : 08.04.2015 AWARD
1. Vide this judgmentcumaward, I proceed to decide the petition filed 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 26.02.2014 at about 02:30 P.M, the deceased Amit Kumar was going on motorcycle bearing No.DL4S BN9823 at a normal speed and on his correct portion of the road. When the deceased reached at Ring Road Naraina near Barar Square Bus Stop, suddenly a Canter bearing No.DLIM7548 which was being driven by its driver/ the respondent No.1 at a very high speed, rashly, negligently, without blowing any horn in contravention of the Traffic rules came in zigzag manner and hit the motorcycle along with the deceased with a great force. It is averred that with the sudden and forceful impact, the deceased along with the motorcycle fell down on the road and sustained fatal injuries on his body. It is Suit No. 510/14 Page no. 2 of 35 Rajender Kumar Vs Raj Kumar & Ors.
averred that after the accident, the deceased was removed to DDU Hospital, Hari Nagar from the accident place, where the concerned doctor declared the deceased as brought dead. It is averred that the accident took place due to the sole rash and negligent driving of the respondent No.1 who was driving the offending vehicle at a very high speed and in a rash and negligent manner. It is averred that the respondent No.1 could have avoided and averted the accident, if he had driven the offending vehicle at a slow speed, carefully and cautiously. It is averred that the respondent No.1 had driven the offending vehicle in violation of the traffic rules and was entirely responsible for the accident. It is stated that in respect of the accident FIR No.77/2014 under Sections 279/304A IPC was registered at PS Naraina. It is averred that the respondent No.2 is vicariously liable to pay the compensation being the owner of the offending vehicle and driver was driving the offending vehicle under the employment, instruction, control and supervision of the respondent No.2. It is averred that the respondent No.3 is also liable to pay the compensation being the insurance company of the offending vehicle. It is averred that an amount of Rs.50,000/ was incurred on the medical and funeral rites of the deceased.
3. It is averred that the deceased was an unmarried boy of 23 years with sound health and physique and he was not the victim of any disease whatsoever. It is averred that the deceased would have survived in all probabilities upto the age of 90 years as there was a history of longevity of life in the family of the deceased. It is averred that the deceased was doing Suit No. 510/14 Page no. 3 of 35 Rajender Kumar Vs Raj Kumar & Ors.
private service as an Executive with Oasis Distilleries Ltd. at HD8, Pitampura, near Madhuban Chowk, New Delhi and was getting salary of Rs.15,000/ per month and besides he was 10th class pass and was doing 12th from National Institute of Open School. It is averred that the deceased was paying the whole of his income to the petitioners for household expenses and he was the only son of his parents. It is averred that due to the death of the deceased, the petitioners have lost their both times meal and the death of the deceased had also adversely affected the future of the family. It is averred that his death had resulted in serious consequences for the petitioners for their whole life apart from suffering sorrow and loss of love and affection, guidance, status and financial support. It is averred that the deceased was an unmarried young boy of simple habits and a teetotaler. It is averred that the parents are the only legal heirs of the deceased and totally dependent upon the income of the deceased. It is prayed that an amount of Rs.30,00,000/ be awarded as compensation in favour of the petitioners and against the respondents.
4. Written statement was filed on behalf of the respondents No.1 and 2 taking the preliminary objections that the alleged accident was not caused because of the rash and negligent driving of the respondent No.1 of the alleged vehicle bearing No.DL1YVD1722 (as per the petition the number of the offending vehicle is DL1M7548) in any manner whatsoever as stated in the present petition but the driver of the other vehicle No.HR20R8998 (though the other vehicle in the instant case is a motorcycle bearing Suit No. 510/14 Page no. 4 of 35 Rajender Kumar Vs Raj Kumar & Ors.
No.DL4SBN9823) himself somehow was responsible for the accident as he was driving the car in a very rash and negligent manner and in a zigzag manner without obeying traffic rules and regulations and suddenly came in front of the vehicle of the respondent No.1 from the wrong side. On the other hand the respondent No.1 tried his level best to avoid the accident but due to the sole negligence and improper driving of the driver of the car the respondent No.1 could not avoid the accident, however, if there was any liability that was totally of the insurance company with whom the vehicle was insured. It is averred that the petitioners have not come before the court with clean hands and are guilty of stating wrong facts. It is averred that the amount of compensation claimed is highly misconceived. It is averred that the alleged offending vehicle was duly insured with the respondent No.3 and if anyone was liable it was the respondent No.3 which is the insurance company of the offending vehicle. It is averred that the respondent No.1 was having a valid driving license at the time of the accident. The averments made in the claim petition were denied. It is admitted that the accident took place on 26.2.2014 at about 2.30 P.M but it is averred that the accident did not take place due to the rash and negligent driving of the respondent No.1 and there was no fault on the part of the respondent No.1.
5. Written statement was filed on behalf of the respondent No.3 taking the preliminary objections that if it is held that the deceased had sustained fatal injuries in the alleged accident then he had sustained the fatal injuries Suit No. 510/14 Page no. 5 of 35 Rajender Kumar Vs Raj Kumar & Ors.
because of the sole negligence on his part and not because of any wrongful act of the driver of the offending vehicle. The averments made in the claim petition were denied. It is averred that the vehicle bearing No.DL1M7548 was insured with the respondent No.3, subject to the terms and conditions and stipulations contained in the policy No.35020031130100017368 from 25.01.2014 to 24.01.2015 issued in the name of Pushpa. It is averred that the claimants are not entitled to claim any amount by way of compensation from the respondent No.3 because the fatal injury, if any, sustained by the deceased was due to his negligence and not because of the negligence on the part of the driver of the insured vehicle. It is averred that the contents of the FIR as to the negligence of the driver of the insured vehicle are wrong. The allegations with regard to the factum of the alleged accident and cause thereof, the involvement of the insured vehicle/ injuries sustained by the injured, negligence on the part of the insured vehicle were denied.
6. Initially Detailed Accident Report was filed by the IO on 2.8.2014 and thereafter the claim petition was filed on 27.8.2014. From the pleadings of the parties, the following issues were framed vide order dated 15.10.2014:
1. Whether the deceased sustained fatal injuries in the accident which occurred on 26.02.2014 at about 02:30 pm at Ring Road Naraina near Barar Square Bus Stop, caused by rash and negligent driving of Canter bearing no.DL 1M 7548, driven by respondent no.1, owned by respondent no.2 and insured with respondent no.3? OPP Suit No. 510/14 Page no. 6 of 35 Rajender Kumar Vs Raj Kumar & Ors.
2. Whether the LRs of the deceased are entitled for compensation? If so, to what amount and from whom?
3. Relief.
An application was filed on behalf of the respondent No.3 under Section 170 MV Act which was allowed vide order dated 5.11.2014.
7. On behalf of the petitioners, the petitioner No.1 appeared in the witness box as PW1 and led his evidence by way of affidavit which is Ex.PW1/A. He deposed that the deceased Amit Kumar was his son who met with an accident on 26.02.2014 and died on the same day. He stated that the deceased was secondary school examination pass from National Institute of Open Schooling and besides this he was doing 10+2 from National Institute of Open Schooling and his date of birth was 04.08.1991 according to his qualification certificate. He stated that the deceased was having a valid driving license. He stated that the date of birth of his wife Daya @ Dayawati was 08.12.1971 according to the ration card. He stated that the deceased was hale and hearty. The copy of salary certificate is Ex.PW1/1, copy of qualification certificates is Ex.PW1/2, copy of student identity card is Ex.PW1/3 and copy of admission confirmation letter is Ex.PW1/4, copy of DL of the deceased is Ex.PW1/5, copy of ration card is Ex.PW1/6 and copies of Aadhar cards of the petitioners are Ex.PW1/7 (Colly). He was not cross examined on behalf of the respondent No.1.
Suit No. 510/14 Page no. 7 of 35 Rajender Kumar Vs Raj Kumar & Ors.
8. Ct. Naveen Kumar was produced in the witness box as PW2 and he deposed that on 26.02.2014, he was posted at PS Naraina and at about 2.30 p.m. he was on duty at Ring Road, Barar Square to Maya Puri. On that day, he saw that one canter No.DL1M7548 hit one Pulsar motorcycle bearing No.DL1SMN7823. He stated that he was on his bike and he went ahead and stopped the canter. Another Constable called at 100 number. He gave information at the PS and the IO came from there and he handed over the driver of the canter to the IO. He stated that the driver of the canter was driving the same at speed and in a rough manner. He stated that the IO had recorded his statement. He was not crossexamined on behalf of the respondent No.1.
9. Shri Inderjeet Chauhan, Accountant, Oasis Distilleries Ltd. Corp. was produced in the witness box as PW3 and the authority letter in his favour is Ex.PW3/A. He had brought the record in respect of the deceased Shri Amit Kumar i.e. copy of attendance register, salary record, appointment letter and the same are Ex.PW3/1 (colly). He was not crossexamined on behalf of the respondent No.1. PE was closed on 24.12.2014. It was stated by the learned counsel for the insurance company that no RE was to be led. RE was closed on 21.1.2015.
10. 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 were also examined on 5.11.2014 in terms of the judgment of the Suit No. 510/14 Page no. 8 of 35 Rajender Kumar Vs Raj Kumar & Ors.
Hon'ble High Court on 11.1.2013 in MACA No.792/2006 titled Oriental Insurance Co. Ltd. v. Ranjit Pandey and Ors.
11. My findings on the specific issues are as under: Issue No. 1
12. As the petition has been filed 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 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.
Suit No. 510/14 Page no. 9 of 35 Rajender Kumar Vs Raj Kumar & Ors.
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 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.
13. The case of the petitioners is that on 26.02.2014 at about 02:30 P.M, the deceased Amit Kumar was going on motorcycle bearing No.DL4SBN9823 at a normal speed and on his correct portion of the road. When the deceased reached at Ring Road Naraina near Barar Square Bus Stop, suddenly a Canter bearing No.DLIM7548 which was being driven by its driver/ the respondent No.1 at a very high speed, rashly, negligently, without blowing any Suit No. 510/14 Page no. 10 of 35 Rajender Kumar Vs Raj Kumar & Ors.
horn in contravention of the traffic rules came in zigzag manner and hit the motorcycle along with the deceased with a great force. It was averred that with the sudden and forceful impact, the deceased along with the motorcycle fell down on the road and sustained fatal injuries on his body. It was averred that after the accident, the deceased was removed to DDU Hospital, Hari Nagar from the accident place, where the concerned doctor declared the deceased as brought dead. It was averred that the accident took place due to the sole rash and negligent driving of the respondent No.1 who was driving the offending vehicle at a very high speed and in a rash and negligent manner. It was averred that the respondent No.1 could have avoided and averted the accident, if he had driven the offending vehicle at a slow speed, carefully and cautiously. It was averred that the respondent No.1 had driven the offending vehicle in violation of the traffic rules and was entirely responsible for the accident. It was stated that in respect of the accident FIR No.77/2014 under Sections 279/304A IPC was registered at PS Naraina. In para 2 of his affidavit Ex.PW1/A the petitioner No.1 had deposed that his deceased son met with an accident on 26.2.2014 and died on the same day. The petitioners in support of their case had examined PW2 who had reiterated the mode and manner of the accident as stated in the claim petition.
14. 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 and post mortem report, copy of arrest memo, copy of Suit No. 510/14 Page no. 11 of 35 Rajender Kumar Vs Raj Kumar & Ors.
seizure memos; 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, copy of certificate of fitness with its verification report and copy of permit with its verification report. As per the FIR No.77/14 under sections 279/304A IPC, PS Naraina the case was registered on the basis of complaint of Ct. Naveen who has been examined as PW2 in the present case wherein he had stated about the manner of the accident. As per the charge sheet the respondent No.1 has been charge sheeted for the offence under sections 279/304A IPC.
15. The respondents No.1 and 2 had filed the written statement averring that the alleged accident was not caused because of the rash and negligent driving of the respondent No.1 of the alleged vehicle bearing No.DL1Y VD1722 (as per the petition the number of the offending vehicle is DL1M7548) in any manner whatsoever as stated in the present petition but the driver of the other vehicle No.HR20R8998 (though the other vehicle in the instant case is a motorcycle bearing No.DL4SBN9823) himself somehow was responsible for the accident as he was driving the car in a very rash and negligent manner and in a zigzag manner without obeying traffic rules and regulations and suddenly came in front of the vehicle of the respondent No.1 from the wrong side. On the other hand the respondent No.1 tried his level best to avoid the accident but due to the sole negligence and improper driving Suit No. 510/14 Page no. 12 of 35 Rajender Kumar Vs Raj Kumar & Ors.
of the driver of the car the respondent No.1 could not avoid the accident, however, if there was any liability that was totally of the insurance company with whom the vehicle was insured. It was admitted that the accident took place on 26.2.2014 at about 2.30 P.M but it was averred that the accident did not take place due to the rash and negligent driving of the respondent No.1 and there was no fault on the part of the respondent No.1. During cross examination by the learned counsel for the Insurance Company PW1 admitted that he was not an eye witness. Thus PW1 stated that he was not an eye witness.
16. The petitioners in support of their case had examined PW2 on whose statement the FIR was registered and during crossexamination by the learned counsel for the insurance company PW2 denied the suggestion that he was not present at the spot of the accident or that he went to the spot after being informed by the public about the accident. He denied the suggestion that the accident had not occurred due to the negligence of the driver of the canter or that the driver of the canter was driving the same at a normal speed but the deceased was driving the motorcycle in a zig zag manner due to which the accident took place. He had not brought any document to show that he was on duty at the said spot on the said date. He denied the suggestion that he was not on duty on the date of accident at the spot of accident or that he had given a false statement at the behest of the IO and the petitioners. Thus mainly suggestions were put to PW2 which he denied. He had not brought any Suit No. 510/14 Page no. 13 of 35 Rajender Kumar Vs Raj Kumar & Ors.
document to show that he was on duty at the said spot on the said date but there is nothing to dispute the same and no reason has been brought forth why he would depose falsely in favour of the petitioners. The respondents No. 1 and 2 had not disputed the accident but it was their contention that the accident had taken place due to the negligence of the deceased but there is nothing to suggest the same. Further PW2 had stated and it is also mentioned in the FIR that PW2 had stopped the offending vehicle after following it soon after the accident. 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 IPC. 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.DL1M7548. In view of the testimony of PW1 and PW2 and the documents on record which have remained unrebutted, the negligence of the respondent No.1 has been prima facie proved.
Suit No. 510/14 Page no. 14 of 35 Rajender Kumar Vs Raj Kumar & Ors.
17. It was stated that due to the sudden and forceful impact of the offending vehicle hitting the motorcycle and the deceased, the deceased along with the motorcycle fell down on the road and sustained fatal injuries on his body. It was averred that after the accident, the deceased was removed to DDU Hospital, Hari Nagar from the accident place, where the concerned doctor declared the deceased as brought dead. Copy of the post mortem report of the deceased is on record as per which cause of death was due to head injury (cranio cerebral injury) followed by road traffic accident and the manner of death was accidental and all injuries were ante mortem in nature and same in duration. Thus it stands established that the deceased had sustained injuries in the alleged accident due to which he died. This issue is accordingly decided in favour of the petitioners and against the respondents. Issue No.2
18. Since issue No.1 has been decided in favour of the petitioners they would be entitled to compensation as per the provisions of the Act. The petitioners are the legal representatives of the deceased being his parents. PW1 was crossexamined on the point of dependency and during cross examination by the learned counsel for the Insurance Company PW1 stated that he was working as a tailor. He stated that his wife was a housewife. He denied the suggestion that his claim petition was exaggerated. Thus PW1 stated that he was a tailor and his wife was a housewife. During examination Suit No. 510/14 Page no. 15 of 35 Rajender Kumar Vs Raj Kumar & Ors.
by the Tribunal, the petitioner No.1 Shri Rajender Kumar stated that he was 47 years old. He stated that apart from the deceased he had one daughter who had been married off. He stated that he was doing tailoring work and at present he was not earning. Being the father the petitioner No.1 would not be regarded as dependent on the deceased. The petitioner No.2 Smt. Dayawati stated that she was 42 years old and that she was a housewife. Being the mother the petitioner No.2 would be regarded as dependent on the deceased. Accordingly only the petitioner No.2 would be regarded as dependent on the deceased.
19. The petitioners have claimed loss of dependency on the basis that the deceased was an unmarried boy of 23 years with sound health and physique and he was not the victim of any disease whatsoever. It was averred that the deceased would have survived in all probabilities upto the age of 90 years as there was a history of longevity of life in the family of the deceased. It was averred that the deceased was doing private service as an Executive with Oasis Distilleries Ltd. at HD8, Pitampura, near Madhuban Chowk, New Delhi and was getting salary of Rs.15,000/ per month and besides he was 10th class pass and was doing 12th from National Institute of Open School. It was averred that the deceased was paying the whole of his income to the petitioners for household expenses and he was the only son of his parents. It was averred that due to the death of the deceased, the petitioners had lost their both times meal and the death of the deceased had also adversely Suit No. 510/14 Page no. 16 of 35 Rajender Kumar Vs Raj Kumar & Ors.
affected the future of the family. It was averred that his death had resulted in serious consequences for the petitioners for their whole life apart from suffering sorrow and loss of love and affection, guidance, status and financial support. It was averred that the deceased was an unmarried young boy of simple habits and a teetotaler. It was averred that the parents were the only legal heirs of the deceased and totally dependent upon the income of the deceased. PW1 in paras 3, 4, 9 and 10 of his affidavit Ex.PW1/A had deposed to that effect. He stated that the deceased was secondary school examination pass from National Institute of Open Schooling and besides that he was doing 10+2 from National Institute of Open Schooling and his date of birth was 04.08.1991 according to his qualification certificate. He stated that the deceased was hale and hearty. The copy of salary certificate is Ex.PW1/1, copy of qualification certificates is Ex.PW1/2, copy of student identity card is Ex.PW1/3 and copy of admission confirmation letter is Ex.PW1/4 and copy of DL of the deceased is Ex.PW1/5.
20. During crossexamination by the learned counsel for the Insurance Company PW1 admitted that Ex.PW1/1 did not bear any date and stamp. He denied the suggestion that the salary certificate was fake and fabricated or that his son was not working anywhere or that his son was not getting a salary of Rs.15,000/ p.m. He admitted that he had not produced any document prior to the accident of his son which showed that he was working in OASIS Ltd. Company. He denied the suggestion that because his son was not working Suit No. 510/14 Page no. 17 of 35 Rajender Kumar Vs Raj Kumar & Ors.
anywhere that is why he was unable to produce any document regarding the employment of his son. Thus PW1 admitted that Ex.PW1/1 did not bear any date and stamp. He admitted that he had not produced any document prior to the accident of his son which showed that he was working in OASIS Ltd. Company.
21. The petitioners in support of their case had examined PW2 who had brought the record in respect of the deceased Shri Amit Kumar i.e. copy of attendance register, salary record, appointment letter and the same are Ex.PW3/1 (colly). During crossexamination by the learned Counsel for the insurance company PW3 admitted that the appointment letter did not bear the signatures of the deceased in acceptance of appointment volunteered the signatures were not there in the office copy. He denied the suggestion that he had produced a fake and fabricated appointment letter which had been made on that day to help the case of the petitioners. He stated that the deceased was not covered under ESI. He stated that TDS was also not applicable to the deceased so no Form 16 was issued. He stated that Rs.3500/ towards allowances was not included in the salary. He denied the suggestion that he had produced fake and fabricated record. Thus PW3 admitted that the appointment letter did not bear the signatures of the deceased in acceptance of appointment and volunteered that the signatures were not there in the office copy. However there is no reason to doubt the record produced by PW3. He stated that the deceased was not covered under ESI. PW3 had Suit No. 510/14 Page no. 18 of 35 Rajender Kumar Vs Raj Kumar & Ors.
produced the salary sheets for the months of January, 2014 and February, 2014 which show that the gross salary payable was Rs.18,500/. PW3 had stated that TDS was not applicable to the deceased so no Form 16 was issued. He also stated that Rs.3500/ towards allowances was not included in the salary. However only transport allowance (Rs.1000) and special allowance (Rs.1000) would not be included for computation of salary of the deceased and the HRA (Rs.1500) would be included. As such the income of the deceased for the computation of loss of dependency is taken as Rs. 16,500/ p.m.
22. It is the case of the petitioners that the deceased was 23 years of age and it was so stated in the claim petition and PW1 had deposed that his son was 22 years old. Copy of the educational certificates of the deceased is on record as Ex.PW1/2 as per which the date of birth of the deceased was 4.8.1991. Accordingly the deceased would have been more than 22 years old on the date of the accident i.e. 26.2.2014. 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 18 applies for calculating the loss of income where the age of the deceased is 16 to 20 years and 21 to 25 years. However as per the law in the case of death of a child, the multiplier would be as per the age of the mother and not as per the age of the deceased. In the case of Mohd. Hasnain & Ors. Vs. Jagram Meena & Ors. bearing MAC. APP. No. 152/2014, decided on 24.03.2014 and in MAC.APP.
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1227/2012 NEW INDIA ASSURANCE CO LTD. V. S.SHAMIM FATIMA & ORS decided on 1.4.2014 the multiplier was taken as per the age of the deceased. However In HDFC ERGO General Insurance Co. Ltd. v. Smt. Lalta Devi & Ors. MAC. APP. 189/2014 decided on 12.1.2015 the question of multiplier i.e. whether it has to be as per the age of the Claimant or as per the age of the deceased was gone into and relying upon the judgments in U.P. SRTC v. Trilok Chandara, (1996) 4 SCC 362; General Manager, Kerala State Road Transport Corporation, Trivandrum v. Susamma Thomas (Mrs.) and Ors. (1994) 2 SCC 176; New India Assurance Company Ltd. v. Shanti Pathak (Smt.) & Ors., (2007) 10 SCC 1; Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121 and National Insurance Company Ltd. v. Shyam Singh & Ors., (2011) 7 SCC 65, it was held that the multiplier will be as per the age of the deceased or the Claimant whichever is higher. It was observed:
"23. It is urged by the learned counsel for the Claimants that multiplier has to be as per the age of the deceased and not as per the age of the Claimants. In support of his contention, the learned counsel for the Claimants places reliance on Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121 and Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65; wherein it was held that the multiplier has to be taken as per the age of the deceased.
24. This issue was gone into detail by this Court wherein the history of awarding reasonable compensation was gone into.
This Court referred to a three Judge Bench decision in U.P. SRTC v. Trilok Chandara, (1996) 4 SCC 362; General Manager, Suit No. 510/14 Page no. 20 of 35 Rajender Kumar Vs Raj Kumar & Ors.
Kerala State Road Transport Corporation, Trivandrum v. Susamma Thomas (Mrs.) and Ors. (1994) 2 SCC 176; another three Judge Bench decision of the Supreme Court in New India Assurance Company Ltd. v. Shanti Pathak (Smt.) & Ors., (2007) 10 SCC 1, Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121 and National Insurance Company Ltd. v. Shyam Singh & Ors., (2011) 7 SCC 65, and in paras 4 to 8 observed as under: "4. As far as the selection of multiplier is concerned, the law is settled that the choice of multiplier is determined by the age of the deceased or that of the claimants whichever is higher. There is a three Judges Bench judgment of the Supreme Court in U.P. State Road Transport Corporation & Ors. v. Trilok Chandra & Ors., (1996) 4 SCC 362, where the Supreme Court relied on G.M., Kerala SRTC v. Susamma Thomas, (1994) 2 SCC 176 and reiterated that the choice of the multiplier is determined by the age of the deceased or that of the claimants whichever is more. Para 12 of the report is extracted hereunder: "12. For concluding the analysis it is necessary now to refer to the judgment of this Court in the case of General Manager, Kerala State Road Transport, v.
Susamma Thomas: (1994) 2 SCC 176. In that case this Court culled out the basic principles governing the assessment of compensation emerging from the legal authorities cited above and reiterated that the multiplier method is the sound method of assessing compensation. The Court observed:
"The multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and Suit No. 510/14 Page no. 21 of 35 Rajender Kumar Vs Raj Kumar & Ors.
capitalizing the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased (or that of the claimants, whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumedup over the period for which the dependency is expected to last.
The principle was explained and illustrated by a mathematical example:
"The multiplier represents the number of Years' purchase on which the loss of dependency is capitalised. Take for instance a case where annual loss of dependency is Rs. 10,000. If a sum of Rs. 1,00,000 is invested at 10% annual interest, the interest will take care of the dependency, perpetually. The multiplier in this case works out to
10. If the rate of interest is 5% per annum and not 10% then the multiplier needed to capitalise the loss of the annual dependency at Rs.10,000 would be 20. Then the multiplier i.e., the number of Years' purchase of 20 will yield the annual dependency perpetually. Then allowance to scale down the multiplier would have to be made taking into account the uncertainties of the future, the allowances for immediate lump sum payment, the period over which the dependency is to last being shorter and the capital feed also to be spent away over the period of dependency is to last etc. Usually in English Courts the operative multiplier Suit No. 510/14 Page no. 22 of 35 Rajender Kumar Vs Raj Kumar & Ors.
rarely exceeds 16 as maximum. This will come down accordingly as the age of the deceased person (or that of the dependents, whichever is higher) goes up."
6.There is another three Judges‟ decision of the Supreme Court in New India Assurance Company Ltd. v. Shanti Pathak (Smt.) & Ors., (2007) 10 SCC 1, where in the case of the death of a bachelor, who was aged only 25 years, the multiplier of 5 was applied according to the age of the mother of the deceased, who was about 65 years at the time of the accident. Para 6 of the report is extracted hereunder: "6. Considering the income that was taken, the foundation for working out the compensation cannot be faulted. The monthly contribution was fixed at Rs.3,500/. In the normal course we would have remitted the matter to the High Court for consideration on the materials placed before it. But considering the fact that the matter is pending since long, it would be appropriate to take the multiplier of 5 considering the fact that the mother of the deceased is about 65 years at the time of the accident and age of the father is more than 65 years. Taking into account the monthly contribution at Rs.3,500/ as held by the Tribunal and the High Court, the entitlement of the claim would be Rs.
2,10,000/. The same shall bear interest @ 7.5% p.a. from the date of the application for compensation. Payment already made shall be adjusted from the amount due."
2. Learned counsel for the Appellant referred to Sarla Verma (supra) in support of the proposition that age of the Suit No. 510/14 Page no. 23 of 35 Rajender Kumar Vs Raj Kumar & Ors.
deceased is to be taken into consideration for selection of the multiplier. As an example the multiplier taken in various cases such as in Susamma Thomas (supra), U.P. SRTC v. Trilok Chandara, (1996) 4 SCC 362 as clarified in New India Assurance Co. Ltd. v. Charlie, (2005) 10 SCC 720 and the multiplier as mentioned in Second Schedule to the Motor Vehicles Act were compared and it was held that the multiplier as per Column No.4 in the said table was appropriate for application. Sarla Verma (supra) related to the death of one Rajinder Prakash who had left behind his widow, three minor children apart from his parents and the grandfather. Obviously, the age of the deceased was taken into consideration for the purpose of selection of the multiplier as the deceased left behind a widow younger to him, apart from three minor children. It was not laid down as a proposition of law that irrespective of the age of the claimants, the age of the deceased is to be taken into consideration for selection of the multiplier for calculation of the loss of dependency. It is true that in Mohd. Ameeruddin (supra 2) and P.S. Somanathan (supra
3) and National Insurance Company Ltd. v. Azad Singh (supra 5), the Hon'ble Supreme Court applied the multiplier according to the age of the deceased, yet in view of Trilok Chandra (supra) and Shanti Pathak (supra) decided by the three Judges of the Supreme Court, the judgment in Mohd. Ameeruddin (supra 2), P.S. Somanathan (supra 3) and Azad Singh (supra 5) cannot be taken as a precedent for selection of the multiplier.
3. In the latest judgment of the Supreme Court in National Insurance Company Ltd. v. Shyam Singh & Ors., (2011) 7 SCC 65, decided on 04.07.2011, the Supreme Court referred to Ramesh Singh & Anr. v. Satbir Singh & Anr., (2008) 2 SCC 667 and held that the multiplier as per the age of the deceased or the claimant whichever is higher Suit No. 510/14 Page no. 24 of 35 Rajender Kumar Vs Raj Kumar & Ors.
would be applicable. Para 9 and 10 of the report are apposite: "9. This Court in the case of Ramesh Singh & Anr. v.
Satbir Singh & Anr., (2008) 2 SCC 667, after referring to the earlier judgments of this Court, in detail, dealt with the law with regard to determination of the multiplier in a similar situation as in the present case. The said findings of this Court are as under: "6. We have given anxious consideration to these contentions and are of the opinion that the same are devoid of any merits. Considering the law laid down in New India Assurance Co. Ltd. v. Charlie, AIR 2005 SC 2157, it is clear that the choice of multiplier is determined by the age of the deceased or claimants whichever is higher. Admittedly, the age of the father was 55 years. The question of mother's age never cropped up because that was not the contention raised even before the Trial Court or before us. Taking the age to be 55 years, in our opinion, the courts below have not committed any illegality in applying the multiplier of 8 since the father was running 56th year of his life."
In our view, the dictum laid down in Ramesh Singh (supra) is applicable to the present case on all fours.
Accordingly, we hold that the Tribunal had rightfully applied the multiplier of 8 by taking the average of the parents of the deceased who were 55 and 56 years."
15.Similarly in Manam Saraswathi Sampoorna Kalavathi & Ors., v. The Manager, APSRTC, Tadepalligudem A.P. & Suit No. 510/14 Page no. 25 of 35 Rajender Kumar Vs Raj Kumar & Ors.
Anr., (2010) 5 SCC 785, decided on 26.03.2010, the multiplier of 13 was applied in case of death of a young bachelor where the mother was 47 years of age."
25.There is no manner of doubt that the appropriate multiplier while awarding compensation for death of an unmarried boy, the multiplier will be selected on the basis of age of the mother of the deceased."
This has been reiterated in Oriental insurance Co. Ltd. v. Timal & Ors. MAC. APP. 214/2013 decided on 14.1.2015; Ashok Singh v. Radhe Raman MAC. APP. 63/2015 decided on 19.1.2015 and in Reliance v. Ram Bharose MAC. APP. 1157/2014 decided on 19.1.2015 and in Shriram General Insurance Co. Ltd. v. Kusum Lata & Ors. MAC. APP. 649/2014 decided on 5.2.2015. Thus the multiplier applicable will be as per the age of the mother of the deceased in the case of an unmarried boy. The copy of the voter identity card of the petitioner No.2 is on record as per which the year of birth of the petitioner No.2 was 1971 and as per the ration card the date of birth of the petitioner No.2 was 8.12.1971. Accordingly the age of the petitioner No.1 would be more than 42 years on the date of the accident i.e. 26.2.2014. As such the multiplier applicable in the instant case would be of 14.
23. Since the deceased was unmarried there would be 50% deduction towards personal and living expenses. As regards the future prospects in HDFC ERGO General Insurance Co. Ltd. v. Smt. Lalta Devi & Ors. MAC. APP.189/2014 decided on 12.1.2015 which has been further relied on in Suit No. 510/14 Page no. 26 of 35 Rajender Kumar Vs Raj Kumar & Ors.
Shriram General Insurance Co. Ltd. v. Preeti & Ors. MAC. APP. 1145/2013 decided on 28.1.2015 and U.P. State Road Transport Corporation v. Shahida & Ors. MAC. APP. 325/2013 decided on 28.1.2015 it was held that the judgment in Reshma Kumari & Ors. v. Madan Mohan & Anr. (2013) 9 SCC 65 shall be taken as a binding precedent in which judgment the Hon'ble Supreme Court while approving the ratio with regard to future prospects in Sarla Verma (Smt.) & Ors. (supra) held as under: "38. With regard to the addition to income for future prospects, in Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002], this Court has noted the earlier decisions in Susamma Thomas [Kerala SRTC v. Susamma Thomas, (1994) 2 SCC 176 : 1994 SCC (Cri) 335] , Sarla Dixit[(1996) 3 SCC 179] and Abati Bezbaruah [Abati Bezbaruah v. Geological Survey of India, (2003) 3 SCC 148 :
2003 SCC (Cri) 746] and in para 24 of the Report held as under:
(Sarla Verma case [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002], SCC p. 134) "24. ... In view of the imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. (Where the annual income is in the taxable range, the words "actual salary‟ should be read as actual salary less tax‟). The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of the deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardise the addition to Suit No. 510/14 Page no. 27 of 35 Rajender Kumar Vs Raj Kumar & Ors.
avoid different yardsticks being applied or different methods of calculation being adopted. Where the deceased was self employed or was on a fixed salary (without provision for annual increments, etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances."
39. The standardization of addition to income for future prospects shall help in achieving certainty in arriving at appropriate compensation. We approve the method that an addition of 50% of actual salary be made to the actual salary income of the deceased towards future prospects where the deceased had a permanent job and was below 40 years and the addition should be only 30% if the age of the deceased was 40 to 50 years and no addition should be made where the age of the deceased is more than 50 years. Where the annual income is in the taxable range, the actual salary shall mean actual salary less tax. In the cases where the deceased was selfemployed or was on a fixed salary without provision for annual increments, the actual income at the time of death without any addition to income for future prospects will be appropriate. A departure from the above principle can only be justified in extraordinary circumstances and very exceptional cases."
As per the documents produced by PW3 the deceased was in job with the company since 2009. Accordingly the petitioners would be entitled to addition of 50% of the income towards future prospects as the age of the deceased was less than 40 years.
Accordingly the loss of dependency as per the monthly income i.e. Rs.16,500/ is calculated as under :
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Rs.16,500/ + Rs.8,250/ (i.e. 50% towards future prospects) = Rs.24,750/ Rs.12,375/ (i.e. 50% towards personal expenses) = Rs.12,375/ X 12 (annually) X 14 (multiplier) = Rs.20,79,000/.
24. The petitioners are also entitled to compensation for loss of love and affection, loss of estate and funeral expenses. PW1 had stated that he had spent an amount of Rs.50,000/ on cremation and funeral rites and transportation of the deceased. During crossexamination by the learned counsel for the Insurance Company PW1 denied the suggestion that he had not spent Rs.50,000/ on funeral. However there is nothing to show the same. The total compensation is determined as under:
Loss of dependency : Rs.20,79,000/
Love and affection : Rs.1,00,000/
Loss of Estate : Rs.10,000/
Funeral expenses : Rs.25,000/
Total : Rs.22,14,000/
Thus, the total compensation would amount to Rs.22,14,000/.
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25. The petitioners are awarded a sum of Rs.22,14,000/ (Rs.Twenty Two Lacs Fourteen Thousand only) with interest at the rate of 9% per annum from the date of filing the DAR till its realization, including, interim award, if any already passed in favour of the petitioners and against the respondents. The petitioner No.1 Shri Rajender Kumar would be entitled to 20% share in the awarded amount and the petitioner No.2 Smt. Daya @ Dayawati would be entitled to 80% share in the awarded amount.
26. 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) 50% of the share of the petitioner No.1 be released to him by transferring it into his savings account in UCO Bank, Patiala House Court, New Delhi and 50% be kept in FDR for a period of 2 years. 20% of the share of the petitioner No.2 be released to her by transferring it into her savings account in UCO Bank, Patiala House Court, New Delhi and the remaining amount out of her share be kept in FDRs in UCO Bank, Patiala House Court, New Delhi in the following manner:
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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.
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 Shri Rajender Kumar and Smt. Daya @ Dayawati 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.
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e) The interest on the fixed deposits shall be paid monthly by automatic credit of interest in the saving account of the petitioner No.2.
f) The withdrawal from the aforesaid account shall be permitted to the petitioner No.2 after due verification and the bank shall issue photo identity card to the petitioner No.2 to facilitate her identity.
g) No cheque book shall be issued to the petitioner No.2 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.2 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. 2 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.
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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.
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.
27. 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:
28. The respondent No.1 is the driver, respondent No.2 is the owner and the respondent No.3 is the insurer of the offending vehicle. Thus the respondents No.1, 2 and 3 are held jointly and severally liable. No evidence has been led on behalf of the respondent No.3. Respondent No.3 i.e. The New India Assurance Co. Ltd. being the insurance company in its reply had Suit No. 510/14 Page no. 33 of 35 Rajender Kumar Vs Raj Kumar & Ors.
stated that the vehicle bearing No.DL1M7548 was insured with the respondent No.3, subject to the terms and conditions and stipulations contained in the policy No.35020031130100017368 from 25.01.2014 to 24.01.2015 issued in the name of Pushpa. There is no evidence on behalf of the respondent No.3 to show that there was any violation of the terms and condition 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 by the IO with the DAR. Hence, the respondent No.3 being the insurance company in respect of the offending vehicle is liable to pay the compensation on behalf of the respondents No.1 and 2. The respondent No.3 being the insurer 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 of the claim petition till its realization failing which it is liable to pay interest at the rate of 12% per annum for the period of delay.
29. 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 14.07.2015.
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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. File be consigned to Record Room.
Announced in open court
on this 8th day of April, 2015 (GEETANJLI GOEL)
PO: MACT2
New Delhi
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Rajender Kumar Vs Raj Kumar & Ors.