Delhi District Court
Rahul vs . Amit Kumar And Another on 10 May, 2012
-:1:-
Rahul Vs. Amit Kumar and another
0IN THE COURT OF SH. AMAR NATH
PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS
TRIBUNAL,DWARKA COURTS, NEW DELHI
IN THE MATTER OF :
RAHUL VS. AMIT KUMAR AND ANOTHER
MACT NO. 135/11
1 Sh. Rahul S/o Late Sh. Dharamjit
2 Pankaj S/o Late Sh. Dharamjit
3 Chahi W/o Late Inder Singh
( Petitioner No. 2 is minor through his grandmother and natural
guardian petitioner no. 3 )
All are residence of: VPO Mundela Kalan, New Delhi110072
.......... Petitioners
Versus
1 Amit Kumar
Badge no. GHD 122,
Through Depot Manager
Ghumanhera, Depot, Delhi
2 The Chairman
Delhi Transport Corporation.
I.P. Depot, New Delhi.
3 United India Insurance Company Ltd.
E85, Himalaya House, 23, K.G. Marg,
New Delhi110001
.......... Respondents
Rahul Vs. Amit Kumar and another MACP No. 135/11 ( Page no 1 to Page no. 14) -:2:- Rahul Vs. Amit Kumar and another
1. Date of institution : 19/04/2011
2. Date of framing of issues: 15/09/2011
3.Reserved for orders: 01/05/2012
4. Date of decision: 10/05/2012 AWARD/ JUDGEMENT:
(FATAL CASE)
1. The present claim petition was filed by two children (petitioners no. 1 & 2) and mother (petitioner no. 3) of the deceased. The offending vehicle was being driven by respondent no. 1 (in short R1) which was owned by respondent no. 2 (in short R2) and the same was insured with the respondent no. 3 (in short R3).
2. FIR bearing no. 22/11 u/s 279/304A IPC was registered with the police station Jaffar Pur Kalan on the statement of one Dayanand S/o Sh.
Dharambir R/o Vill. & PO Mundela Kalan, New Delhi stated inter alia that he resides at the aforesaid address and doing the private job. On 2/4/2012, he left the house for strolling towards Dhansa main road. On reaching Higher Secondary School near Samadhi of Smt. Prakashwati then he saw coming a DTC bus bearing registration no. DL1PB 2743 (hereinafter the offending vehicle) which was being driven by R1 at a fast speed in rash & negligent manner and hit against the motorcyclist Dharamjeet Singh (hereinafter the deceased) hailed form his village. As a result of which the motorcyclist fell Rahul Vs. Amit Kumar and another MACP No. 135/11 ( Page no 1 to Page no. 14) -:3:- Rahul Vs. Amit Kumar and another down on the road and sustained severe injuries including grievous which ultimately proved to be fatal.
3 Pursuant to the service of notice, respondents appeared and filed their respective written statements. A joint written statement was filed by R1 and R2 wherein the deceased was blamed to cause the accident pleading that he being drunken had lost the control over the motorcycle driven by him at a very fast speed without wearing helmet and hit the bus from its front right head light side and hence, they are not liable to pay any amount of compensation. 4 A separate written statement has been filed by R3 whereby insurance company has pleaded that deceased was himself negligent while driving his motorcycle and respondent no. 1 was not at fault. However, it has been admitted that the offending vehicle was insured with it vide policy no. 0411003110P0017686697 which was valid from 2/1/2011 to 1/1/2012 subject to the conditions of the policy of the insured. A highly excessive amount is claimed without any justification.
5 On the basis of pleadings of parties, issues were framed on 15/09/2011 and interim of Rs. 50,000/ was passed on the same date. 6 Having heard the arguments advanced on behalf of both the sides and after perusal of evidence on record, my issuewise finding are as under: ISSUE NO 1 Rahul Vs. Amit Kumar and another MACP No. 135/11 ( Page no 1 to Page no. 14) -:4:- Rahul Vs. Amit Kumar and another Whether Sh. Dharamjit received fatal injuries on 02/04/2011 due to the rash and negligent driving of vehicle No. DL1PB2743 by R1? ......OPP 7 The onus to prove this issue was on the petitioner. In order to prove the case PW1 Rahul had averred through the affidavit Ex. PW1/A that the deceased Dharamjeet Singh was his father of 40 years at the time of accident. He had met with an accident on 2/4/11 with the offending vehicle (DTC bus) after leaving behind the petitioners including him. 8 PW2 Sh. Dayanand being an eye witness has narrated the sequence of the accident as it was taken place through his affidavit Ex. PW2/A. His deposition has not been controverted by respondent no. 1 and 2 as they chose to stay away from the proceedings and did not cross examine him on the point of negligence. However, he was cross examined by the counsel for the insurance company but nothing beneficial came out during his cross examination so as to discredit him on the version given by him with regard to the manner of the accident. Further more, he was the author of the FIR and the number of the offending vehicle finds mentioned therein. Not only this, his statement was recorded by the police and thus, it assumes importance for disposal of this issue. 9 Besides this, the petitioners have proved the certified copies of the criminal record viz. Final Report u/s 173 CrPC Ex. PW1/1, MLC of the Rahul Vs. Amit Kumar and another MACP No. 135/11 ( Page no 1 to Page no. 14) -:5:- Rahul Vs. Amit Kumar and another deceased Ex. PW1/2, statement of eye witness EX. PW1/3, FIR Ex. PW1/4, PM report Ex. PW1/5, arrest memo of R1 Ex. PW1/6, seizure memo Ex. PW1/7 vide which the offending vehicle was seized, mechanical inspection report of the offending vehicle Ex. PW1/8 which are sufficient to prove the factum of accident.
10 In Bimla Devi and others Vs. Himachal Raod Transport Corporation and others (2009) 13 SC 5 13, it has been observed that in a road accident, the strict principles of poof 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."
11 The aforesaid proposition of law has again upheld by the Hon'ble Apex Court in Parmeshwari Vs. Amir Chand and others 2011 (1) SCR 1096 (Civil Appeal No. 1082 of 2011) 12 Having regards to the aforesaid evidence, I am of the opinion that Rahul Vs. Amit Kumar and another MACP No. 135/11 ( Page no 1 to Page no. 14) -:6:- Rahul Vs. Amit Kumar and another petitioners have been able to establish on record that accident did take place due to negligent driving of the offending vehicle at the given date, time and place. 13 In view of the above discussions, this issue is decided in favour of the petitioner and against the respondents.
ISSUE NO2 Whether the petitioners are entitled to claim compensation if so, what amount and from whom?
.....OPP 14 Sh. Rahul being son of the deceased had averred through his affidavit Ex. PW1/A that Dharamjeet Singh was his father who left behind three legal heirs including him. It has been specifically averred that there is no other legal heirs of the deceased excepts the petitioners. I have no hesitation to accept the above averments of the affidavit as nothing contrary have been shown or produced.
15 It has been specifically averred that his father was doing private service and his earning was Rs. 8000/ per month. He was contributing his entire income for house hold expenses. But his statement qua the earning of the deceased needs corroboration.
16 As there is no corroborative / cogent documentary evidence with respect to the income of the deceased on record, therefore, it would be Rahul Vs. Amit Kumar and another MACP No. 135/11 ( Page no 1 to Page no. 14) -:7:- Rahul Vs. Amit Kumar and another appropriate and just to calculate the loss of dependency after applying the minimum wages prevailing at the time of accident. 17 The accident had taken place on 2/4/11. As per the schedule of the minimum wages effective from 1/2/2011 applicable to an unskilled, the minimum wages were Rs 6089/ per month. The minimum wages also go on increasing. Reliance in this regard can be placed on the latest judgment of Apex Court passed in civil appeal No. 3723 of 2012 titled as Santosh Devi Vs. National Insurance Company Ltd. and Ors" arising out of SLP ( C ) No. 24489 of 2010 decided on 23.04.2012. Their Lordship were pleased to make the following observations in paragraph 14: "We find it extremely difficult to fathom any rationale for the observation made in paragraph 24 of the judgment in Sarla Verma's case that where the deceased was self employed or was on a fixed salary without provision for annual increment, etc., the Courts will usually take only the actual income at the time of death and a departure from this rule should be made only in rare and exceptional cases involving special circumstances. In our view, it will be naive to say that the wages or total emoluments/income of a person who is selfemployed or who is employed on a fixed Rahul Vs. Amit Kumar and another MACP No. 135/11 ( Page no 1 to Page no. 14) -:8:- Rahul Vs. Amit Kumar and another salary without provision for annual increment, etc., would remain the same throughout his life. The rise in the cost of living affects everyone across the board. It does not make any distinction between rich and poor. As a matter of fact, the effect of rise in prices which directly impacts the cost of living is minimal on the rich and maximum on those who are self employed or who get fixed income/emoluments. They are the worst affected people. Therefore, they put extra efforts to generate additional income necessary for sustaining their families. The salaries of those employed under the Central and State Governments and their agencies/instrumentalities have been revised from time to time to provide a cushion against the rising prices and provisions have been made for providing security to the families of the deceased employees. The salaries of those employed in private sectors have also increased manifold. Till about two decades ago, nobody could have imagined that salary of class IV employee of the Government would be in five figures and total emoluments of those in higher echelons of service will cross the figure of rupees one lac. Although, the wages/income of those Rahul Vs. Amit Kumar and another MACP No. 135/11 ( Page no 1 to Page no. 14) -:9:- Rahul Vs. Amit Kumar and another employed in unorganized sectors has not registered a corresponding increase and has not kept pace with the increase in the salaries of the Government employees and those employed in private sectors but it cannot be denied that there has been incremental enhancement in the income of those who are self employed and even those engaged on daily basis, monthly basis or even seasonal basis. We can take judicial notice of the fact that with a view to meet the challenges posed by high cost of living, the persons falling in the latter category periodically increase the cost of their labour. In this context, it may be useful to give an example of a tailor who earns his livelihood by stitching cloths. If the cost of living increases and the prices of essentials go up, it is but natural for him to increase the cost of his labour. So will be the cases of ordinary skilled and unskilled labour, like, barber, blacksmith, cobbler, mason etc. Therefore, we do not think that while making the observations in the last three lines of paragraph 24 of Sarla Verma's judgment, the Court had intended to lay down an absolute rule that there will be no addition in the income of Rahul Vs. Amit Kumar and another MACP No. 135/11 ( Page no 1 to Page no. 14) -:10:- Rahul Vs. Amit Kumar and another a person who is selfemployed or who is paid fixed wages. Rather, it would be reasonable to say that a person who is selfemployed or is engaged on fixed wages will also get 30% increase in his total income over a period of time and if he/she becomes victim of accident then the same formula deserves to be applied for calculating the amount of compensation."
18 After applying the ratio of judgment (SUPRA) the average income of the deceased can be taken as Rs 6089/ plus 30 % of Rs 6089/. It comes to Rs. 7915.7/. The deceased was married and left behind his two sons and mother as his wife was pre deceased, therefore, 1/3rd towards the personal expenses has to be made. I find support of my view from Sarla Verma Vs. DTC and another (2009) 6 SCC 121 . The loss of dependency of the petitioners, thus, comes to Rs 5277.2/ per month, rounded of to Rs. 5277/ after deducting of amount of personal living expenses.
19 To ascertain in the multiplier, the age of the deceased has to be taken. To prove the same, the petitioners have relied upon the ration card Ex. PW1/13 wherein his born year has been mentioned as 1969 as on 25/2/2008 meaning thereby the deceased was around 42 years at the time of accident and Rahul Vs. Amit Kumar and another MACP No. 135/11 ( Page no 1 to Page no. 14) -:11:- Rahul Vs. Amit Kumar and another an appropriate multiplier shall be '14' . Reliance in this regard can be placed on Sarla Verma VS. DTC and another ( 2009) 6 SCC 121 . 20 Keeping in view the above discussions, following sum shall be just compensation:
1 Loss of dependency (5277X12X14) = Rs. 8,86,536/ 2 Loss of Love and affection* = Rs. 25,000/ 3 For funeral expenses = Rs. 10,000/ 4 Loss of estate = Rs. 10,000/ ____________________________________________________________ Total Rs. 9,31,536/ (Rupees Nine Lacs Thirty One Thousand Five Hundred Thirty Six only) ___________________________________________________________ *Under the head of loss of love and affection only 25,000/ (in total to all the claimants) is granted after relying up on the judgment MAC APP. 891/2010 Rashmi Devi & Ors. Vs. Sanjeev Kumar & Ors. decided on 23/01/2012.
It includes the interim award of Rs 50,000/ paid to the petitioner vide order dtd 15/9/2011.
INTEREST 21 There is no material on record to withhold the interest and as Rahul Vs. Amit Kumar and another MACP No. 135/11 ( Page no 1 to Page no. 14) -:12:- Rahul Vs. Amit Kumar and another such, the petitioners are awarded interest @ Rs. 7.5% per annum from the date of filing of petition i.e 19/4/2011 till realization. APPORTIONMENT 22 Petitioners no 1 and 2 shall get Rs 3,40,768/ each with interest whereas petitioner no. 3 shall be entitled Rs. 2,00,000/ with interest. RELEASE 23 The share of petitioner no. 2 are to be kept in his FDR till he attains the age of 18 years.
24 Half of the share of petitioner no. 3 shall be released after remaining half in her name in the shape of FDR for a period of three years. 25 From the amount awarded to petitioner no 1, an amount of Rs. 1,40,768/ with interest is ordered to be released after retaining the remaining amount in his name in the shape of FDR in the following manner: a Amount of Rs. 1,00,000/ in FD for a period of three years. b Amount of Rs.1,00,000/ in FD for a period of five years.
No loan or advance to be given against FDRs without permission of the tribunal. However, Petitioners no. 1 and 3 can withdraw monthly/quarterly Rahul Vs. Amit Kumar and another MACP No. 135/11 ( Page no 1 to Page no. 14) -:13:- Rahul Vs. Amit Kumar and another interest, if they so wish.
LIABILITY 26 Admittedly the offending vehicle was being driven by R1. It was owned by R2 and was insured with R3. R1 is the principal tort feaser. R2 and R3 are vicariously liable. All the respondents are held jointly and severally liable to pay the awarded amount. However, since the vehicle was insured with R3, therefore, it shall pay the awarded amount. 27 In view of the above discussions, issue no. 2 is decided in favour of the petitioners and against the respondents. ISSUE NO. 3
Relief.
28 In view of the findings on issues no. 1 and 2 the petitioners are awarded Rs. 9,31,536/(Rupees Nine Lacs Thirty One Thousand Five Hundred Thirty Six only) with interest including amount of interim award.
29. The awarded amount be deposited by R3 within 30 days from today, failing which interest @12% per annum shall be charged w.e.f. 11/06/2012 till realization.
30 R3 shall inform the petitioners through registered post that the cheques of the awarded amount are being deposited so as to facilitate the petitioners to collect their cheques.
Rahul Vs. Amit Kumar and another MACP No. 135/11 ( Page no 1 to Page no. 14) -:14:- Rahul Vs. Amit Kumar and another 31 Petitioners to place on record their photographs, copies of election Icards or any other documents (if not filed earlier) to establish their identities. 32 Copy of the award be supplied to both the parties. (free of cost).
33. File be consigned to Record Room.
ANNOUNCED IN OPEN COURT (AMAR NATH)
DATED: 10/05/2012 PRESIDING OFFICER,
MOTOR ACCIDENTS CLAIMS TRIBUNAL,
DWARKA COURTS, NEW DELHI.
ALL PAGES SIGNED
Rahul Vs. Amit Kumar and another MACP No. 135/11
( Page no 1 to Page no. 14)