Delhi District Court
Smt.Malti vs Sh.Rakesh Kumar Pandey on 27 January, 2015
1
IN THE COURT OF SH.HARISH DUDANI
JUDGE:MOTOR ACCIDENT CLAIMS TRIBUNAL 1 NEW DELHI
SUIT NO.488/13
DATE OF INSTITUTION:23.09.2013
1. SMT.MALTI
W/O SH.HEERA LAL
2. SH.HEERA LAL
S/O LATE SH.SHIV PRASAD
3. SH.BHANU
S/O SH.HEERA LAL
4. MS.MONI
D/O SH.HEERA LAL
5. MS.SALONI
D/O SH.HEERA LAL
ALL R/O H.NO.329
VILLAGE POORE KOYALI
MOHALLA JOHAVA NATKI
P.O.DALMAU,DISTT.RAE BARELI
UTTAR PRADESH. PETITIONERS
Versus
1. SH.RAKESH KUMAR PANDEY
S/O SH.JANARDHAN PANDEY
R/O VILLAGE BALIYA MOHRA
P.S.BAKKA, DISTT.BAKKA,BIHAR.
2. LATE SH.RAKESH KUMAR
S/O SH.GANGA RAM
REPRESENTED THROUGH LRS
(i)SMT.GEETA
2
W/O LATE SH.RAKESH KUMAR
(ii)MS.SHWETA
D/O LATE SH.RAKESH KUMAR
REPRESENTED THROUGH HER MOTHER
SMT.GEETA
(iii)MS.SAKSHI
D/O LATE SH.RAKESH KUMAR
REPRESENTED THROUGH HER MOTHER
SMT.GEETA
(iv)MASTER RAKSHIT
S/O LATE SH.RAKESH KUMAR
REPRESENTED THROUGH HIS MOTHER
SMT.GEETA
ALL R/O H.NO.93,VILLAGE KAKROLA
NEW DELHI.
ALSO AT:747/1,WARD NO.35
JANTA COLONY, ROHTAK,HARYANA.
3. IFFCO TOKIO GENERAL INSURANCE COMPANY LTD.
R/O FAI BUILDING, 10 SHAHEED JEET SINGH MARG
QUTUB INSTITUTIONAL AREA
NEW DELHI. RESPONDENTS
Final Arguments heard on : 15.01.2015. Award reserved for : 27.01.2015. Date of Award : 27.01.2015. AWARD
1. Vide this judgment cum award I proceed to decide the petition filed U/s 166 and 140 of Motor Vehicle Act, 1988, as amended up to date 3 (hereinafter referred to as the Act) for grant of compensation in a road accident.
2. Briefly stated the facts giving rise to the petition are that in the night of 25/26.07.2013 Sh.Raanu Sharma was sitting as pillion rider on scooter no.DL9SG6534 which was being driven by his employer Sh.Hira Lal and at about 12 midnight they reached near petrol pump, Priya Cinema, Vasant Vihar and in the meantime dumper no.HR46C4021 being driven by respondent no.1 in rash and negligent manner hit their scooter as a result of which they fell down and both the occupants of the scooter sustained injuries. It is stated that Sh.Raanu Sharma was taken to JPN Apex Trauma Centre, AIIMS, New Delhi where he expired on 26.07.2013.
3. It is stated that the deceased Sh.Raanu Sharma was 22 years of age at the time of accident and he was working as helper on the pan shop of Sh.Hira Lal and also used to supply pan material to other vendors and was earning a gross salary of Rs.10,000/ per month i.e. Rs.4,000/pm from the employer and Rs.6,000/pm from other vendors. It is stated that the accident took place due to rash and negligent driving of the offending vehicle being driven by respondent no.1, owned by respondent no. 2(being represented by his LRs) and insured with respondent no.3 and as such all the respondents are jointly and severally liable to pay compensation to the petitioners. It is prayed that Rs.Seventeen Lacs only 4 @ interest of Rs.15% per annum be awarded as compensation in favour of petitioners and against the respondents.
4. Respondents no.1,the driver has filed written statement and has contested the petition. It is stated that no accident took place due to rash and negligent driving of respondent no.1 and respondent no.1 was having a valid driving license. Other averments on merits are denied.
5. LRs of respondent no.2 have filed written statement and have contested the petition. All averments on merits are denied.
6. Respondent no.3, the insurance company has filed offer of settlement and has offered Rs.3,85,000/ as compensation.
7. From the pleadings of parties following issues were framed on 03.04.2014.
1. Whether Sh.Raanu Sharma received fatal injuries in the accident which occurred on 25.07.2013 at about 11.45 PM to 12.00AM near Priya Cinema, Vasant Vihar, New Delhi caused by rash and negligent driving of vehicle no.HR46C4021 being driven by respondent no.1, owned by respondent no.2 and insured with respondent no.3?
2.) Whether the petitioners are entitled for compensation? If so, to what amount and from whom?
3.)Relief.
8. In support of their case the petitioners examined Smt.Malti petitioner no. 1/mother of deceased as PW1. PW1 tendered in evidence her affidavit Ex.PW1/A and proved the copy of ration card Ex.PW1/1, copy of her 5 election identity card Ex.PW1/2 and copy of school leaving certificate of her son mark A.
9. Petitioners examined Sh.Heera Lal, father of deceased/petitioner no.2 as PW2. PW2 tendered in evidence his affidavit Ex.PW2/A and proved the copy of his election identity card Ex.PW2/1.
10.Petitioners examined Sh.Hira Lal, an eye witness of the accident as PW3. PW3 tendered in evidence his affidavit Ex.PW3/A and proved copy of his election identity card Ex.PW3/1.Petitioners thereafter closed their evidence.
11.On the other hand respondents did not examine any witness despite opportunities and RE was closed.
12.I have heard the Ld. counsel for the parties and perused the record. My findings on specific issues are as follows.
ISSUE NO. 1
13.As the petition has been filed U/s 166 M.V Act it was incumbent upon the petitioners to prove that deceased sustained injuries in an accident caused due to rash and negligent driving of offending vehicle no.HR46C4021 by its driver.
14.To determine the negligence of driver of offending vehicle it has been held in National Insurance Company Ltd. V/s Pushpa Rana & Another, 2009 ACJ 287 as follows:
6
"The last contention of the appellant insurance company is that the respondentsclaimants 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 (ii) criminal record showing completion of investigation of police and issue of charge sheet under sections 279/304A , Indian Penal Code against the driver was lodged; (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. These documents are sufficient proofs to reach 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."
15.The case of the petitioners is that in the night of 25/26.07.2013 Sh.Raanu Sharma was sitting as pillion rider on scooter no.DL9SG6534 which was being driven by his employer Sh.Hira Lal and at about 12 midnight they reached near petrol pump, Priya Cinema, Vasant Vihar and in the meantime dumper no.HR46C4021 being driven by respondent no. 1 in rash and negligent manner hit their scooter as a result of which they fell down and both the occupants of the scooter sustained injuries. It is stated that Sh.Raanu Sharma was taken to JPN Apex Trauma Centre, AIIMS, New Delhi where he expired on 26.07.2013. It is stated that case 7 vide FIR No.279/13, u/s 279/337/304A IPC was registered at PS Vasant Vihar. The petitioner no.1 & petitioner no.2, parents of deceased appeared in the witness box as PW1 & PW2 and adduced evidence by way of affidavits Ex.PW1/A & Ex.PW2/A respectively. In the cross examination, PW1/petitioner no.1 & PW2/petitioner no.2 stated that they are not eye witness of the accident. Petitioners examined Sh.Hira Lal an eye witness of the accident as PW3 who adduced evidence by way of affidavit Ex.PW3/A. In his affidavit Ex.PW3/A, PW3 has reiterated the manner of accident as stated in the claim petition. In para 1 of preliminary objection of written statement, respondent no.1 has stated that no such accident took place due to rash and negligent driving of respondent no.1. In the cross examination of PW3 Sh.Hira Lal, respondent no.1 has given suggestion to the effect that the accident took place due to negligence of driving of scooter no.DL9SG6534 which was denied by PW3. Apart from giving suggestion to PW3 in the cross examination that the accident took place due to his negligent driving of scooter no.DL9SG6534, the respondents have not adduced any evidence to prove their contention. Police has filed Detailed Accident Information Report(DAR) in this case and alongwith DAR police has filed copy of FIR No.279/13, u/s 279/337/304A IPC, PS Vasant Vihar, copy of site plan, copy of final report u/s 173 CrPC, copy of seizure memo of offending vehicle, copy of seizure 8 memo of scooter, copy of MLC of Sh.Raanu Sharma prepared at JPN Apex Trauma Centre, AIIMS, New Delhi,copy of post mortem report of Sh.Raanu prepared at JPN Apex Trauma Centre, AIIMS, New Delhi in which opinion on the cause of death is mentioned as "hemorrhagic shock as result to abdominal injuries consequent to blunt force trauma, all injuries are antre mortem in nature and could be possible in a case of road traffic accident as alleged in this case". Copy of permit verification report of offending vehicle, certificate of fitness of offending vehicle, copy of RC verification report of the offending vehicle,copy of insurance policy of offending vehicle, copy of mechanical inspection report of offending vehicle and copy of mechanical inspection report of scooter. As per copy of mechanical inspection report of offending vehicle, it had fresh damages i.e. front bumper scratched, left front corner light glass damaged, left side front arch scratched. As per mechanical inspection report of scooter, it had fresh damages i.e. front mud guard dented/fork disaligned, right side outer body scratched, right side engine cover dented/pressed/scratched and rear number plate dented/pressed. As per final report u/s 173 CrPC respondent no.1 as been charge sheeted for offences under Section 279/337/304A IPC.Thus in view of testimony of PWs and documents on record the negligence of driver of offending vehicle has been prima facie proved. Issue no.1 is accordingly decided in favour of petitioners and 9 against the respondents.
ISSUE NO.2
16.As issue no.1 is decided in favour of the petitioners, they are entitled to compensation.
COMPENSATION
17.The present petition has been filed by petitioner no.1, mother of deceased, petitioner no.2 father of deceased and petitioner no.3 to 5, brother and sisters of deceased.
18. It is stated that Sh.Raanu Sharma was only 22 years old at the time of death and was unmarried. In view of judgment of Hon'ble Delhi High Court in The Oriental Insurance Company Ltd. v. A.K.Puri & Ors, M.A.C. App. No.196/13 the multiplier shall be applicable as per age of deceased. In order to prove the age of deceased the petitioners have filed on record the copy of school leaving certificate issued by Nehru Junior High School, Johava Natki,Dalmau, Distt.Rae Bareli,UP dated 22.08.2005 as per which date of birth of deceased is 02.05.1991. Hence the deceased was around 22 years and two months of age at the time of accident and the multiplier applicable as per Sarla Verma and Ors. vs Delhi Transport Corporation and Another (2009) 6 SCC 121 shall be of 18.
10
19.In the claim petition, it is stated that Sh.Raanu Sharma was working as helper in the pan shop of Sh.Hira Lal. It is further stated in the claim petition that deceased used to earn Rs.10,000/pm out of which he was getting Rs.4,000/pm from his employer and Rs.6000/pm from other vendors. Sh.Heera Lal PW2 has stated in para 2 of his affidavit Ex.PW2/A that his son used to work at different shops and stores and was earning a total salary of more than Rs.10,000/pm and he used to send Rs.8000/pm to them. Smt.Malti PW1 stated in cross examination that she has not filed any document of income of Sh.Raanu and they have also not filed any document to the effect that Sh.Raanu used to send them money. PW2 also stated in cross examination that he has not filed any document of income of deceased and he has also not filed any document to the effect that deceased used to send them money. The contention of counsel for respondent no.3 is that alongwith the DAR IO has filed statement of Sh.Hira Lal in which he has stated that Sh.Raanu was working as helper with him and was earning Rs.4000/pm and in addition he was providing food and residence, on that account income of deceased be take as Rs.4000/pm. Sh.Hira Lal who was employer of deceased appeared in the witness box as PW3 and stated in cross examination that he used to pay Rs.4000/ to Rs.5000/pm to Sh.Raanu and he was providing free food, clothing, shelter and conveyance to 11 deceased and he further stated that deceased used to work in a flower shop also where he used to earn Rs.5000/ to Rs.6000/pm. It is to be noted that as per the testimony of PW3, PW3 was paying Rs.4000/ to Rs.5000/pm to the deceased and in addition deceased was being given food, clothing, shelter and conveyance and the amenities as provided by PW3 cannot be said to be of no value. Petitioners have not filed any document to the effect that deceased was earning Rs.10,000/pm. In the circumstances the income of deceased shall be taken as per his qualification/avocation. PW1&PW2 stated in cross examination that deceased was a matriculate however during the course of arguments, it is th contended on behalf of petitioners that deceased was educated upto 8 standard. The petitioners have filed copy of school leaving certificate issued by Nehru Junior High School, Johava Natki,Dalmau, Distt.Rae th Bareli,UP dated 22.08.2005 as per which deceased had passed 8 standard examination and thereafter he had left the school. No document has been filed to the effect that deceased was a matriculate. Deceased was stated to be working as helper. In the circumstances, the income of deceased shall be taken as Rs.7722/pm which were minimum wages of unskilled worker w.e.f.01.04.2013.
20.The deceased was a bachelor. In Sarla Verma and Ors. vs Delhi Transport Corporation and Another (2009) 6 SCC 121 it was held by 12 Hon'ble Supreme Court that :
"31.Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent/s and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependant on the father."
21.In view of the above judgment, 50% is to be deducted towards personal and living expenses and after deduction of 50% , the income of deceased would be Rs.772250% of Rs.7722/=Rs.3861/ per month.
22.In Rajesh and others V.Rajbir Singh and others, 2013 ACJ 1403, it has been held by Hon'ble Supreme Court that :
"11.Since the court in Santosh Devi's case, 2012 ACJ 1428(SC), actually intended to follow the principle in the case of salaried persons as laid down in Sarla Verma's case, 2009 ACJ 1298(SC) and to make it applicable also to selfemployed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30 percent always; it will also have a reference to the age. In other words, in the case of selfemployed or 13 persons with fixed wages, in case the deceased victim was below 40 years, there must be an addition of 50 percent to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax,if any. Addition should be 30 percent in case the deceased was in the age group of 40 to 50 years."
23. The age of the petitioner has been taken as 22 years and two months at the time of accident. Hence after addition of 50% income of deceased would be Rs.3861/+50% of 3861/=Rs.5791.5/per month which is rounded of as Rs.5792/pm. After applying the multiplier of 18, the total loss of dependency is computed to be as Rs.5792x12x18=Rs. 12,51,072/. In Rajesh and others V.Rajbir Singh and others, 2013 ACJ 1403, Hon'ble Supreme Court has held that funeral expenses should be Rs.25,000/. Petitioners are also awarded Rs.25,000/for loss of love and affection and Rs. 10,000/ towards loss of estate. The total compensation is determined as under:
Loss of dependency : Rs. 12,51,072/
Funeral Expenses : Rs. 25,000/
Loss of Estate : Rs. 10,000/
Loss of Love and Affection : Rs. 25,000/
TOTAL : Rs. 13,11,072/
RELIEF
24.The petitioners are thus awarded Rs.13,11,072/(Rs. Thirteen Lacs Eleven Thousand Seventy Two only) with interest at the rate of 7.5% per 14 annum in view of judgment of Rajesh and others V.Rajbir Singh(supra) from the date of filing of petition till its realisation including, interim award, if any already passed in favour of the petitioner and against the respondents. Petitioner no.2, the father of deceased can not be considered a dependent on deceased in view of judgment of Sarla Verma and Ors. vs Delhi Transport Corporation and Another (supra). Moreover, petitioner no.1/mother of deceased stated in cross examination that her husband is an agriculturist and owns about 5 biswas of land. Petitioner no.2/father of deceased stated during the course of examination in the court on 15.01.2015 that he is 41 years of age and is an agriculturist and is able to earn Rs.3000/ to Rs.4000/m. No evidence has been adduced to the effect that father of deceased is not earning and is not capable of supporting his family. Petitioner no.3 to 5 i.e. brother and sisters of deceased also cannot be considered as dependent on the deceased as their father is working and earning. In the circumstances entire amount is awarded in favour of petitioner no.1, mother of deceased.
25.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 15 view of the directions contained in the above judgments the award amount is to be disbursed as follows:
26. 10% of the award amount shall be released to petitioner no.1 by transferring it into her savings account and remaining amount be kept in FDR in UCO Bank, Patiala House Court, New Delhi in following manner:
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.
9. Fixed deposit in respect of 10% for a period of nine years.
27.The cheque be deposited in UCO Bank, Patiala House Court, New Delhi in the name of UCO Bank, Patiala House Court, New Delhi A/c Smt.Malti.
28.The interest on the fixed deposits shall be paid monthly by automatic credit in the saving accounts of the claimants/beneficiary.
29.Original fixed deposit receipt shall be retained by the Bank in safe custody. However, the original pass book shall be given to the claimant 16 along with the photocopy of the FDR. Upon the expiry of period of FDR the bank shall automatically credit the maturity amount in the saving account of beneficiary.
30.The original fixed deposit receipt shall be handed over to the claimant at the end of the fixed deposit period and shall automatically credit the maturity amount in the savings account of the beneficiary.
31.No cheque book shall be issued to the claimant without permission of the court. No loan, advance or withdrawal shall be allowed on the fixed deposit without permission of the court.
32.Withdrawal from the aforesaid accounts shall be permitted to the beneficiary after due verification and the Bank shall issue photo identity card to the beneficiary to facilitate identity.
33.Bank shall transfer Savings Account to any other branch/bank according to her convenience.
34.The beneficiary 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.
35.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.
17
36.The respondent no.3,insurance company shall deposit the award amount directly in bank account of the petitioner no.1 at UCO Bank,Patiala House Court,New Delhi within 30 days of the passing of the award failing which it is liable to pay interest at the rate of 12% per annum for the period of delay.
37.The petitioner no.1 shall file two sets of photographs along with her 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 petitioner no.1 shall also file the proof of residence and furnish the details of the bank account with the Nazir within a week. The petitioner no.1 shall file her complete address as well as address of her counsel for sending the notice of deposit of the award amount.
38.The respondent no.3, the insurance company shall deposit the award amount alongwith interest upto the date of notice of deposit to the claimant with a copy to her counsel and the compliance report shall be filed in the court alongwith proof of deposit of award amount, the notice of deposit and the calculation of interest on 20.04.2015. 18 APPORTIONMENT OF LIABILITY:
39. Respondents have not led evidence inspite of opportunity being granted. Thus respondent no.1 being the driver, respondent no.2 (being represented through his LRs) being the owner and respondent no.3 being the insurer are held jointly and severally liable. Respondent no.3 is directed to deposit the award amount within 30 days with interest at the rate of 7.5% from the date of filing of petition till its realisation. In case of any delay, it is liable to pay interest @ 12% per annum for the period of delay. 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.
40.An attested copy of award be given to the parties(free of cost). File be consigned to Record Room.
Announced in the open court. (Harish Dudani) on 27.01.2015. PO/MACT01, New Delhi.