Delhi District Court
Smt. Chameli Devi W/O Sh. Hari Chand vs Shri Virender Kumar S/O Sh. Dhan Singh on 14 February, 2008
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IN THE COURT OF
DR. T. R. NAVAL: PRESIDING OFFICER
MOTOR ACCIDENTS CLAIMS TRIBUNAL
KARKARDOOMA COURTS: DELHI
Date of Institution : 23rd September 2004
Date of Arguments : 11th February, 2008
Date of Order : 14th February, 2008
SUIT No. 359/04
IN MATTER OF
1. Smt. Chameli Devi W/o Sh. Hari Chand
2. Sh. Hari Chand S/o Sh. Bishnath
3. Smt. Kanchan W/o Late Sh. Om Prakash
4. Master Gaurav S/o Late Sh. Om Prakash
5. Kumari Anshika D/o Late Sh. Om Prakash
(All R/o H.No. 253, HBlock, Old Seemapuri, Delhi110095).
(Petitioner Nos. 4 & 5 being minors are represented through their
mother Smt. Kanchan/Natural Guardian).
PETITIONERS
V E R S U S
1. Shri Virender Kumar S/o Sh. Dhan Singh
Plot No. 25A, SiteII, Nangloi Extension,
Delhi - 110041.
II Add: CWS1, B.B. Marg, Mukherjee Nagar, Delhi.
2. Delhi Transport Corporation, CWS1, B.B. Marg
Mukherjee Nagar, Delhi.
II Add: I.P. Depot, I.P. Extension, New Delhi.
3. National Insurance Company Ltd.
DO22, Flat No. 101106, First Floor, N1,
2
BMC House, Connaught Place,
New Delhi 110001
RESPONDENTS
A W A R D This award will dispose off a petition bearing under Sections 166/140 of the Motor Vehicle Act, 1988, (herein after referred to as Act) filed by the petitioners.
2. The brief facts of the petitioners case are that on 06.08.2004 at about 12.40 P.M., Sh. Om Prakash (herein after referred to as the deceased) was returning from his office of BSES Yamuna Power Ltd, 66 KV Grid Station, Patparganj Industrial Area, Delhi, after finishing his training on his motorcycle No. DL5SN7478. When he was passing TJunction crossing at Sidheshwar Sai Baba Mandir, at that time, a DTC Bus No. DL1PB3338 (herein after referred to as offending vehicle) being driven by respondent No. 1 rashly and negligently and also in very high speed came from the byelane infront of Sidheshwar Sai Baba Mandir and entered the TJunction and in the process of the same struck against the deceased. As a result of the impact, Sh. Om Prakash sustained grievous injuries and was firstly removed to GTB Hospital and then he was taken to Metro Hospital where he remained admitted till his death i.e. 12.08.2004. The petitioners claimed compensation of Rs. 50 lacs from the respondents being driver, 3 owner and insurer of the offending vehicle.
3. Respondent Nos. 1 & 2 contested their case on the grounds interalia, that respondent No. 1 was not at fault at the time of alleged accident. They denied rest of the allegations and prayed for dismissal of petition.
4. Respondent No. 3 admitted that offending vehicle was insured with it vide insurance policy No. 351000/3103/6705106 which was valid from 03.03.2004 to 02.03.2005. It also denied remaining allegations and prayed for dismissal of petition.
5. On the pleadings of the parties, following issues were framed :
1. Whether deceased Om Prakash received fatal injuries due to the rash and negligent driving of offending vehicle No. DL1PB3338 being driven by R1?
2. Whether the petitioners are entitled for any compensation, if so, of what amount and from whom?
3. Relief.
6. In support of their case counsel for the petitioners examined HC Dinesh Pal as PW1, Girish Chand, Medical Attendant at GTB 4 Hospital as PW2, Sh. Manmeet Singh, Assistant at BSES Yamuna Power Ltd as PW3, Shri Khazan Singh, an employee of BSES Yamuna as PW4, Sh. Amrish Kumar, PRO Metro Hospital, Noida as PW5 and Sh. Hari Chand, petitioner No. 2 as PW6. Besides, criminal court record was tendered in evidence as Ex.P1 to Ex.P6.
Since no evidence was led by the respondents, R.E. was closed.
7. After closing of evidence of the parties, I heard arguments of Ld. Counsels for parties and perused file including written arguments.
8. On perusal of pleadings of parties; examination of evidence on record; and considering the arguments oral as well as written of Ld. Counsels for the parties, I formed my views which are discussed herein below issue wise.
FINDINGS ON ISSUE NO. 1
9. PW4 on this aspect deposed that on 06.08.2004 at about 12 noon he completed his training. Shri Om Prakash deceased who was his colleague left Patparganj Industrial Area on his motorcycle for reaching Grid Station No. 2 through Madhu Vihar. After a gap of fifteen minutes he also left for that area on his 5 scooter. When he reached at T point opposite Sai Baba Mandir, he noticed that the motorcycle of Om Prakash was coming from the side of Preet Vihar and which was taking right turn towards the Patparganj Societies, a DTC Bus No. DL1P3338 came from wrong side of the road and it was going towards Anand Vihar and that bus hit against the motorcycle of Shri Om Prakash. That accident took place due to negligence of the driver of DTC bus. In cross examination by counsel for respondent Nos. 1 and 2 he explained that at time of accident motorcycle came under the bus and the bus driver also drive the bus in reverse gear. In cross examination by counsel for insurance company he denied the suggestion that motorcycle of the deceased was being driven on the wrong side of the road or that accident took place due to negligence of deceased himself. PW6 on this aspect deposed that his son Shri Om Prakash died in road side accident on 06.08.2004 and he sustained head injuries. Ex.P1 is attested copy of charge sheet showing that charge sheet against Shri Vijender Kumar respondent No. 1 for his trial for the offences punishable U/s 279/304A IPC was filed. Ex.P2 is copy of FIR in respect of the above referred accident. PW1 also proved copy of FIR as Ex.PW1/1. It implicates the offending bus and its driver. Ex.P3 is seizure memo of the offending bus. Ex.P4 is mechanical inspection report of the offending vehicle. It has been mentioned therein that there were scratches in the front bumper towards left 6 side. Ex.P6 is postmortem report of Shri Om Prakash deceased.
10. It has been argued on behalf of counsel for respondent Nos. 1 and 2 that there was contributory negligence on the part of the deceased because the damages on the bus were found in front side. As mentioned above the scratches on the front left side of the bus were found but PW4 has not stated that deceased was also negligent in driving the motorcycle or that deceased was liable for contributory negligence. There is no other supporting evidence in this regard on judicial file. On the basis of evidence on record and particularly discussed herein above, it stands established on record that Shri Om Prakash deceased sustained fatal injuries due to rash and negligent driving of offending vehicle by respondent No. 1. Accordingly, this issue is decided in favour of the petitioner and against the respondents.
FINDINGS ON ISSUE NO. 2
11. Since, it has been held herein above that Sh. Om Parkash deceased sustained fatal injuries due to rash and negligent driving of respondent No. 1, therefore, petitioners have became entitled to get compensation from the respondents. Let us now see as to what amount of compensation, petitioners are entitled to get and from whom?
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12. It has been argued on behalf of petitioner that after sustaining the injuries in the accident the injured was taken to GTB Hospital from where he was shifted to Metro Hospital, Noida and he died on 12.08.2004. It has been prayed that compensation in lieu of expenses of the treatment of deceased may also be awarded.
13. Counsel for the petitioner relied on a case Oriental Insurance Co. vs. K.P. Kapur & Ors. I (1997) ACC 138. In that case total loss of a car insured by the insurance company was caused in accident. The insurance company with which the car was insured paid entire amount of Rs.36,000/ for which the car was insured because of the total loss of the car. Tribunal also awarded compensation for total loss of the car. Order of the Tribunal was challenged on the ground of double enrichment. The question arose whether Rs.36,000/ should be deducted from the compensation. Delhi High Court answered it in negative and observed that in collateral matters this principle cannot be invoked for reduction of damages payable to the victim of his tort.
14. Counsel for the petitioner further relied on a case Dr. A.C. Mehra vs. Behari Lal & Another 1998 ACJ 379. In that case, a comprehensively insured car was damaged in accident. The insurance company paid charges for repair of the car to the 8 workshop. The question arose whether the right of the owner to claim compensation from the driver and owner of the offending vehicle stood subrogated. It was held that doctrine of subrogation cannot apply automatically under Motor Vehicles Act.
15. Turning to the present case PW5 on this aspect deposed that as per the record brought by him from Metro Hospital, Noida, Shri Om Prakash was admitted in his hospital on 06.08.2004 and he expired on 12.08.2004. He remained under the care of Dr. Sunita Kumar, Dr. Vivek Kumar and Dr. A. Goel. He proved original case sheet consisting of 111 pages as Ex.PW5/A. In cross examination he deposed that his hospital has raised the bill of Rs.83,456/. It was proved as Ex.PW5/R2/1. He also deposed that his hospital did not receive any amount after reimbursement from BSES. The patient did not pay any single penny. The amount raised by his hospital was sent for reimbursement to BSES.
16. The facts of above mentioned cases are different from the facts of the present case because in both these cases the petitioners paid some premium for insurance. There established separate contact between the insurance company and the petitioners but in the present case there is no separate contact between the petitioners and BSES.
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17. As the amount of entire bills of treatment has been received from the hospital from the employer of the deceased, therefore, the petitioner cannot get this amount again from the respondents as that would amount to double enrichment and bonanza to the petitioners.
MULTIPLIER
18. PW2 on this aspect deposed that as per his service record, date of birth of Sh. Om Prakash was 02.07.1975. Death summary Ex.P1 contained the age of the deceased Om Prakash as twenty nine years. On calculation the age of the deceased as on the date of accident comes to twenty nine years and one month. Therefore, considering the age of the deceased between 2530 years, multiplier of eighteen is applicable in the present case as per Second Schedule appended to the Act.
COMPENSATION
19. PW3 on this aspect deposed that Shri Om Prakash joined BSES Yamuna Power Ltd. as sub station attendant on 21.12.1999 and his date of retirement was 31.07.2035. Salary certificate of deceased was proved as Ex.PW3/1, Forms 16 were proved as Ex.P4, Ex.P5 and Ex.P6. On perusal of Ex.PW3/1 I find that it is 10 salary certificate for the month of July 2004. His total salary was Rs.10,241/. A sum of Rs.300/ was shown as CCA and Rs.35/ as WA. These amounts cannot be calculated for the purpose of assessment of compensation. After reducing it the amount of salary comes to Rs.9906/. One third of his income has to be reduced towards the expenses which the victim would have incurred towards maintaining himself had he been alive. On calculation the amount of compensation for loss of dependency comes to Rs.9906 - 1/3 x 12 x 18 = Rs.14,26,464.00.
20. Keeping in view the facts and circumstances and evidence on record, I am of the view that the compensation which the petitioners are entitled to get may be narrated as under:
1. Compensation for loss of dependency :Rs.14,26,464.00
2. Funeral Expenses :Rs. 2,000.00
3. Loss of Consortium :Rs. 5,000.00
4. Loss of Estate, Love & Affection :Rs. 12,500.00 Total :Rs.14,45,964.00 LIABILITY
21. Although it was pleaded on behalf of respondent Nos. 1 and 2 that accident did not take place due to rash and negligent driving by respondent No. 1, yet, respondents have failed to adduce any evidence. It was admitted by insurance company that offending vehicle was insured with it but insurance company has 11 failed to adduce any evidence to prove that there was any violation of terms and conditions of insurance policy. Nothing has been stated in the written arguments filed by insurance company on the point of liability. Therefore, in view of the evidence on record and reasons and discussion mentioned herein above I am of the view that respondent Nos. 1 and 2 are vicariously liable to pay compensation to the petitioners and Respondent No. 3 is liable to indemnify and actually pay the same to the petitioners. Issue No. 2 stands decided accordingly.
RELIEF : ORDER
22. Consequent upon the decision of issue Nos. 1 and 2 in favour of the petitioners and against the respondents petition is decided in favour of the petitioners and against the respondents and respondent No. 3, being insurer of the offending vehicle is directed to pay Rs.14,45,964.00 (Rupees Fourteen Lacs Forty Five Thousand Nine Hundred Sixty Four only) together with interest @ 7% from the date of filing of petition till the date of realization to the petitioners minus amount of interim compensation, if any, paid to the petitioners. Out of the award amount petitioner Nos. 1 and 2 being the parents will get Rs.50,000/ (Rupees Fifty Thousand only) each. Out of the remaining award amount petitioner No. 3 being the wife and main sufferer will get 50%. 50% of her share be released to her and 50% be deposited in the 12 bank of her choice for a period of five years. The remaining 50% will be equally shared by petitioner Nos. 4 and 5 and their shares be kept in FDR in the bank of choice of petitioner No. 1 or till the date of their attaining majority whichever is later.
23. Respondent No. 3 is, accordingly, directed to deposit the award amount with this Tribunal by way of crossed cheque within one month from the date of this award.
24. The award amount be released to the petitioners on deposit with this Tribunal.
File be consigned to record room.
Announced in the open court on
14th February, 2008 ( DR. T.R. NAVAL )
PRESIDING OFFICER
MACT : KKD COURTS
DELHI