Delhi District Court
Kalyan Singh Mann vs Sudhir Kumar & Ors on 31 August, 2013
1
IN THE COURT OF SH AJAY KUMAR JAIN, PRESIDING OFFICER:
MOTOR ACCIDENT CLAIMS TRIBUNAL: NEW DELHI
Suit No. 262/10
Kalyan Singh Mann Vs Sudhir Kumar & Ors
Computer ID No. 02406C0337482010
FATAL CASE
Sh Kalyan Singh Maan (Father of deceased)
S/o Late Sh. Dharam Pal Singh
R/o H.No. 45A, Gali No. 10C,
Molarband Extn., Badarpur,
New Delhi110044
.............Petitioner/claimant
VERSUS
1. Sudhir Kumar (Driver )
S/o Sh. Malik Shah
R/o - D565, Tajpur Pahari,
PS Badarpur, New Delhi44
2. Ghanshyam Dass Goyal (Owner)
S/o Sh. Arjun Dass Goyal
R/o House no. 273, Main Bazar, Badarpur,
Village, Mathura Road, New Delhi110044
3. Bajaj Allianz General Insurance Company Ltd
st nd
Office At: C31, 1 & 2 Floor,
Connaught Place, New Delhi
......................Respondents
Date of Institution : 27.04.2010
Date of reserving judgment/order : 08.08.2013
Date of Pronouncement : 31.08.2013
JUDGMENT:
1. Present claim proceedings were initiated on the basis of Accident Kalyan Singh Mann Vs Sudhir Kumar , Suit no.262/10, Page 1 of 16 2 Information Report (AIR) filed by the police. Subsequently, a petition u/s 161/140 MV Act was also filed.
2. The claimants / petitioners in the present proceedings initially are mother and father of deceased Sidharth Mann, but during the pendency of present proceedings, petitioner no.2 Kamlesh Mann (mother of deceased) expired. Vide order dated 10.01.2013, Ld. Predecessor had deleted the name of the petitioner no.2 (mother) and only claimant left is petitioner no.1 Kalyan Singh, father of the deceased Sidharth Mann and an amended memo in this regard was filed on record.
3. Brief facts of the case is that on 07.02.2010 deceased Sidharth Mann alongwith his cousin and maternal Uncle coming from a medical store at village Sarai Julena on motorcycle bearing No. DL 3S AT 5904, when at around 10.50 am reached CNG pump, Mathura Road, Delhi the offending blue line of route no. 405 bearing registration no. DL 1PB 5686 came out of the CNG pump at very high speed and hit the motorcycle of the deceased Sidharth Mann pursuant to which he fell down from motorcycle and his helmet also fallen down from his head, consequently his head hit the road, due to which he died on spot.
4. An FIR no. 39/2010 u/s 279/304A IPC PS Sarita Vihar was registered.
Police during investigation recorded the statement of eye witness Vikas Mann and also arrested accused Sudhir Kumar, driver of the offending Kalyan Singh Mann Vs Sudhir Kumar , Suit no.262/10, Page 2 of 16 3 vehicle (Respondent no.1). Police also prepared site plan of the place of occurrence, seized the offending blue line bus,, collected the postmortem report. During investigation, the test identification parade of accused Sudhir Kumar was conducted, and he was identified by eye witness Vikas Mann amongst the eleven persons as driver of offending vehicle. On completion of investigation, police found Sudhir Mann respondent no.1 accused of rash and negligent driving, hence chargesheeted him for commission of offence u/s 279/304 A IPC.
5. During proceedings, respondent driver and owner filed WS. Respondent no.1 in WS stated that on that day the vehicle was handed over to Sh Bhudev by respondent no.2 (owner) who was plying the vehicle at the relevant time. Respondent no.2 owner also in his WS stated that on 07.02.2010 at around 7.30 am given the offending vehicle i.e, blue line bus bearing no. DL1PB5686 to Sh Bhudev. He further stated that Sh Bhudev and respondent no.1 were under his employment and plying the bus on contractual basis. Insurance company in its WS took the plea that as per owner version offending vehicle was driven by one Bhudev whereas police found Sudhir Kumar as accused driver during investigation.
6. During inquiry following issues were framed:
(1) Whether the deceased suffered fatal injuries in the accident which took place on 07.02.2010 at 10:50 AM involving Bus bearing No. DL 1PB5686 due to rash and negligent driving of R1, owned by R2 and Kalyan Singh Mann Vs Sudhir Kumar , Suit no.262/10, Page 3 of 16 4 insured with R3? (OPP) (2) Whether the petitioners are liable for compensation. If so, to what amount and against which of the respondents? (3) Relief.
7. During inquiry, petitioner Kalyan Singh Mann examined himself as PW1.
Sh Vikas Mann eye witness as PW2. PW2 in his affidavit of evidence categorically stated that respondent no.1 was driving the offending blue line bus at the time of accident and his statement was also recorded by the police. In cross examination, nothing is suggested on behalf of the driver that he was not driving the same or the said vehicle was driven by one Bhudev. Ld. counsel for owner and insurance company also not cross examined this witness on this aspect.
8. Driver Sudhir (respondent no. 1) has not examined himself before the court, however owner Ghanshyam Dass (respondent no 2) examined himself as R2W1. In this statement owner stated that he has handed over the said vehicle to Sh Bhudev Singh for driving on that day and both respondent no.1 and Bhudev were working under him on contractual basis. In cross examination by insurance company he stated that Bhudev was employed with him as a driver and Sudhir Kumar was employed as conductor on aforesaid vehicle, however stated that he do not know whose name he had given in transport authority.
Kalyan Singh Mann Vs Sudhir Kumar , Suit no.262/10, Page 4 of 16 5
9. Respondent no.3 insurance company examined R3W1 Sh Naveen Kumar LDC from State Transport Authority stated that with every permit there is an authorization card in respect of the driver and in the present case, the authorization is in name of one Sukhdeep Singh and if any other person found to be driving vehicle it amounts to violation of terms and conditions of the permit. R3W2 Ms. Ramnique Sachar Sr. Executive of the Insurance company exhibited the insurance policy, notice under order 12 Rule 8 CPC , letter written by Bhudev Singh to SHO etc.
10. After hearing the arguments and considering the material on record, my issuewise finding is as under:
Issue no.1 (Negligence ):
11. Petitioner during evidence examined PW2 Vikas Mann, eye witness of the accident who, in his affidavit of evidence Ex. PW2/A categorically stated that on 07.02.2010 when the deceased Sidharth Mann driving his motorcycle and reached near CNG Pump, the offending blue line bus bearing No. DL 1P B 5686 after filling the CNG came out of CNG pump and hit the motorcycle, pursuant to which deceased lost his balance and fell down on the road and died at the spot. He categorically stated that the said vehicle was driving by respondent no.1 in rash and negligent manner. In cross examination, nothing came out to discredit his evidence. It was not even suggested to him that respondent no.1 was not driving the vehicle at Kalyan Singh Mann Vs Sudhir Kumar , Suit no.262/10, Page 5 of 16 6 the time of accident. PW1 Kalyan Singh though not eye witness also deposed on the same lines.
12. Testimony of PW2 Vikas Mann is duly corroborated by police investigation. Police during investigation and after conducting TIP of respondent no. 1 through PW2, arrested him. On conclusion of investigation, further found him accused of rash and negligent driving and chargsheeted him u/s 279/304 A IPC. Thus, no weight could be attached to plea of driving by Bhudev.
13. To determine the negligence of the driver of the offending vehicle, I am being guided by the judgment of Hon'ble High Court in case titled "Basant Kaur & Ors Vs. Chattar Pal Singh and Ors" [2003 ACJ 369 MP (DB)], wherein it has been held that registration of a criminal case against the driver of the offending vehicle is enough to record the finding that the driver of offending vehicle is responsible for causing the accident. Further it has been held in catena of cases that the proceedings under the Motor Vehicles Act are not akin to the proceedings as in civil suit and hence strict rules of evidence are not required to be followed in this regard. I am also being guided by the judgment of Hon'ble High Court of Delhi in "National Company Limited Vs. Pushpa Rana" (2009 ACJ 287), wherein it was held that in case the petitioner files the certified copy of the criminal record or the criminal record showing the completion of the investigation by the police or the issuance of charge sheet under Section 279/304 A IPC or the Kalyan Singh Mann Vs Sudhir Kumar , Suit no.262/10, Page 6 of 16 7 certified copy of the FIR or in addition the recovery memo or the mechanical inspection report of the offending vehicle, these documents are sufficient proof to reach to the conclusion that the driver was negligent. It is also settled law that the term rashness and negligence has to be constructed lightly while making a decision on a petition for claim for the same as compared to the word rashness and negligence as finds mention in the Indian Penal Code. This is because the chapter in the Motor Vehicle Act dealing with compensation is a benevolent legislation and not a penal one.
14. In view of the above discussion, further as no contrary evidence came against the petitioners, it stands proved that the deceased had suffered fatal injuries due to rash and negligent driving of the Sudhir Kumar (R1). Accordingly the issue no. 1 is decided in favour of the petitioner and against the respondent.
Issue no.2 (compensation):
15. In present case initially the petition was filed on behalf of both mother and father of the deceased however after filing of the petition, the mother of the deceased was expired. But in view of the judgment of Hon'ble Delhi High Court in case titled as "Budh Singh Vs Vijender Singh & Ors. MAC. APP. No. 326/2010, (2013 ACJ 19) , the right of compensation accrues in favour of mother on the date of accidental death. In case mother of the deceased is alive at the time of death of the deceased then the factum of her Kalyan Singh Mann Vs Sudhir Kumar , Suit no.262/10, Page 7 of 16 8 death during proceeding did not take away her right of compensation. In present case though the mother of the deceased got deleted from the array of parties after her death, however she is entitled for her share at the time of filing of the petition. As there is no other LRs of the mother, the entire share of the mother will go to the father i.e present petitioner. Thus, the present petitioner being father of deceased son and husband of deceased mother is entitled for entire share.
16. PW1 Kalyan Singh father of the deceased in his affidavit of evidence Ex.
PW1/A categorically stated that deceased was his only son and was intelligent and brilliant boy, who after completing Sr. Secondary Examination did the diploma in MS Office with internet, foundation course in Mechanical CADD. It is also stated by this witness that deceased completed 3 years animation course from Arena Multi Media Institute. He also stated that deceased was working with impact power control and drawing salary of Rs. 25000/ pm excluding other expenses. PW1 in this regard filed the birth certificate and other educational and professional qualification certificates (Ex. PW1/D, Ex. PW1/E, Ex. PW1/F, G, H). The appointment letter of deceased Ex.PW1/1 shows that deceased was working as a design executive in Impact Power Ltd. at monthly salary of Rs. 25,000/ per month.
17. PW1 in cross examination categorically stated that his son was receiving salary in cash and denied the suggestion that the deceased was not earning Rs. 25,000/ pm. PW2 Vikas Mann also stated in cross examination that Kalyan Singh Mann Vs Sudhir Kumar , Suit no.262/10, Page 8 of 16 9 deceased was technically qualified and the deceased himself told to him that he was earning Rs. 25,000/ per month. Ld. counsel for the insurance company raised a plea that the petitioner has not called any employer , therefore, petitioner unable to prove the salary of Rs. 25,000/ of the deceased. However, from the evidence and documents on record, it is clear that the deceased is technically qualified in computer field as a designer, and also shown to be working as a design executive in this company, therefore from mere non examination of employer it cannot be inferred that deceased was not working as design executive and not drawing salary of Rs. 25000/ per month, further circumstantially also considering the technical qualification of deceased income of Rs. 25,000/ per month appears genuine. Thus, income of deceased is regarded as Rs. 25,000/ per month.
18. Petitioner in his affidavit of evidence has nowhere stated that he alongwith his deceased wife were dependent upon the deceased, however casually stated in affidavit of evidence that claiming compensation on account of loss of financial support etc. PW1 in his cross examination categorically stated that he is electrical engineer by qualification and was earning Rs. 50,000/ from his service, therefore, it cannot be held that he alongwith his wife were dependent upon deceased hence, they cannot be awarded any compensation on account of loss of dependency however, they are entitled for compensation on account of loss of estate. The loss of estate is to be calculated on the basis of judgment of Delhi High Court passed in Case Kalyan Singh Mann Vs Sudhir Kumar , Suit no.262/10, Page 9 of 16 10 titled "Keith Rowe Vs. Prashant Sagar II (2010) ACC 64"
19. Loss of Estate: Deceased was earning Rs. 25000/ per month on the date of accident, further as deceased is not shown to be in permanent employment entitled for future prospects @ 30%, hence the total annual income of the deceased is {25,000 + (30% of 25,000)} X 12 = 399996/.
20. In present case 1/4th of annual income is to be taken as saving of deceased.
Age of mother is to taken into consideration for choosing multiplier in terms of Sarla Verma Case. Age of mother as per election card on record is 44 years on 01.01.2008, hence her age on the date of accident i.e 07.02.2010 is above 46 years, then applicable multiplier is 13.
Total loss of estate is Rs. 3,99,996 X ¼ X13=Rs. 12,99,987/
21. Loss of love and affection: Keeping in view of the facts that petitioner has lost young son and legal precedents, a sum of Rs. 25,000/ is granted towards loss of love and affection.
22. Funeral Expenses: Keeping in view of the facts of the current state of expenses and settled legal precedents , a sum of Rs. 25000/ is granted towards funeral expenses.
23. Thus, the total compensation to which petitioner is entitled comes as under Kalyan Singh Mann Vs Sudhir Kumar , Suit no.262/10, Page 10 of 16 11
in:
The total compensation to which petitioner entitled:
S.No Description Amount
1. Loss of estate Rs. 12,99,987
2 Loss of love and affection Rs. 25,000/
3. Funeral expenses Rs. 25000/
4 Total Rs. 13,49,987/
Hence, the petitioner is awarded a total amount of Rs. 13,49,987/. RELIEF:
24. I hereby award an amount of Rs. 13,49,987/.(Rs. Thirteen lacs, forty nine thousand, nine hundred eighty seven only) as compensation with interest @ 9% per annum, from the date of filing the present petition, i.e., till the date of realization of the amount, in favour of the petitioner and against the respondent.
25. The driver/owner, R1 is the principal tort feasor, R2 being owner vicariously liable for the acts of driver and R3 insurance company is liable to indemnify the owner.
26. Liability: The main plea of the insurance company is that the respondent no. 1 driver is not authorized to drive the offending vehicle at the time of accident. In this regard, insurance company examined R3W1 Sh. Naveen Kalyan Singh Mann Vs Sudhir Kumar , Suit no.262/10, Page 11 of 16 12 Kumar, LDC State Transport Authority who stated that as per authorization card issued with permit, authorized driver is Sukhdev Singh, and only he can drive the vehicle, otherwise its amount to violation of terms and condition of the permit. Insurance company also examined R3W2 Ms. Ramnique who stated that they have not verified the driving licence of driver Sudhir Kumar (R1) from the licencing authority.
27. The defence of the insurance company is that the offending vehicle was not driven by the authorized driver in violation of the permit condition. Record also suggests that respondent no. 1 is not the authorized driver as per permit. However, Hon'ble Delhi High Court in case titled Davinder Singh & Anr Vs Dukhi Shah & Ors, MAC. APP. 496/2009 held that section 149 (2) MV Act talks about violation of permit purpose and not other violation of permit conditions. In that case the vehicle was authorized to be driven by registered owner but the same was driven by some other person, court held that this is not violation of permit purpose as envisaged u/s 149 (2) MV Act. Hon'ble High Court of Delhi in its another judgment titled as "Bajaj Allianz General Insurance Company Ltd Vs Vibhishan Mehta @ Vibhishan Prasad & Ors, MAC APP 756/10 also held mere violation of permit condition of driving by not authorized driver do not violate permit purpose.
28. Ratio of both case is squarely applicable in the present case, though R1 not Kalyan Singh Mann Vs Sudhir Kumar , Suit no.262/10, Page 12 of 16 13 authorized to drive the vehicle as per permit condition but this is not the violation of permit purpose in terms of section 149(2) MV Act. It is not the case of the insurance company that R1 was not holding any valid and effective driving licence. Hence, insurance company is liable to indemnify the owner and not entitled for recovery rights.
29. In view of the above discussion, the insurance company is directed to discharge the liability of the award amount within a period of 30 days from today alongwith the interest @ 9% per annum, failing which interest @ 12% per annum shall be charged for the period of delay.
30. Release of awarded amount to petitioner Sh. Kalyan Singh Mann: A sum of Rs. 13,49,987/ alongwith proportionate interest thereon, is awarded to the petitioner being the father of the deceased. Out of this amount, Rs. 49,987/ alongwith proportionate interest be immediately released to the petitioner on realization. And for balance amount of Rs. 13 lakhs alongwith proportionate interest thereon be kept in form of FDR in the following phased manner :
1. Rs. One Lac for period of 1 year
2. Rs. Two Lacs for a period of 2 years
3. Rs. Two Lacs for a period of 3 years
4. Rs. Two Lacs for a period of 4 years
5. Rs. Two lacs for a period of 5 years Kalyan Singh Mann Vs Sudhir Kumar , Suit no.262/10, Page 13 of 16 14
6. Rs. Two lacs for a period of 6 years
7. Rs. Two lacs for a period of 7 years
31. Deposition of awarded amount with STATE BANK OF INDIA, Saket Court Branch, New Delhi
32. In terms of the directions given by Hon'ble High Court in case titled "Rajesh Tyagi Vs. Jaibir Singh and Ors." bearing FAO number 842/2003 decided on 08.06.2009, UCO Bank/State Bank of India has agreed to open a Special Fixed Deposit Account for the victims of road accidents.
33. As per orders of Hon'ble High Court in case titled " New India Assurance Co. Ltd. Vs. Ganga Devi & ors. Bearing MAC. App.135/2008" as well as in another case titled as "Union of India Vs. Nanisiri" bearing MAC Appeal No. 682/2005 dated 13.01.2010, directions were given to the Claims Tribunal to deposit part of the awarded amount in fixed deposit in a phased manner depending upon the financial status and financial needs of the claimants.
34. In consonance to the idea by which part of the awarded amount is ordered to be kept in fixed deposit/ savings account by Hon'ble High Court, insurance company is directed to deposit the awarded amount in favour of the petitioners with State Bank of India, Saket Courts Complex Branch, against account of petitioners. Within a period of 30 days from today, failing which respondent no.3 Insurance company shall be liable to pay Kalyan Singh Mann Vs Sudhir Kumar , Suit no.262/10, Page 14 of 16 15 future interest @ 12% per annum till realization (for the delayed period).
35. Upon the aforesaid amount being deposited, the State Bank of India, Saket Court Complex, New Delhi, is directed to keep the awarded amount in the "Fixed deposit/saving account" in the following manner:
(i) The interest on the fixed deposit be paid to the petitioner/ claimant by Automatic Credit of interest of their saving bank accounts with State Bank of India, Saket Court Branch, New Delhi.
(ii) Withdrawal from the aforesaid account shall be permitted to claimants/ petitioners after due verification and the Bank shall issue photo identity Card to claimants/ petitioners to facilitate identity.
(iii) No cheque book be issued to claimants/ petitioners without the permission of this Court.
(iv) The original fixed deposit receipts shall be retained by the Bank in safe custody. However, the original pass Book shall be given to the claimants/ petitioners alongwith photocopy of the FDR's.
(v) The original fixed deposit receipts shall be handed over to claimants/ petitioners at the end of the fixed deposit period.
(vi) No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the permission of this Court.
(vii) Half yearly statement of account be filed by the Bank in this court.
(viii) On the request of claimant/ petitioner, the Bank shall transfer the Savings Account to any other branch of State Bank of India, according to Kalyan Singh Mann Vs Sudhir Kumar , Suit no.262/10, Page 15 of 16 16 their convenience.
(ix) Claimant/ petitioner shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit Account to Branch Manager, state Bank of India, Saket Courts Complex Branch, new Delhi.
36. Directions for the respondent No. 3 (Insurance company): The Respondents3 is directed to file the compliance report of their having deposited the awarded amount with the State Bank of India, Saket Court Branch in this tribunal within a period of 30 days from today.
37. The Respondent shall intimate to the claimants/ petitioners about it having deposited the cheques in favour of petitioner in terms of the award, at the address of the petitioners mentioned at the title of the award, so as to facilitate them to withdraw the same.
38. Copy of this award/judgment be given dasti to all concerned.
39. Put up the matter for compliance on 19.10.2013.
Announced in open Court ( AJAY KUMAR JAIN)
Dated : 31.08.2013 PO : MACT02, (SOUTH EAST DISTRICT)
SAKET COURTS/NEW DELHI
31.08.2013
Kalyan Singh Mann Vs Sudhir Kumar , Suit no.262/10, Page 16 of 16