Delhi District Court
Ms. Bershadska Tetyana vs Mr. Surender Singh (Driver) on 21 March, 2013
IN THE COURT OF SHRI ARUN BHARDWAJ
PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS TRIBUNALII,
DWARKA COURTS: NEW DELHI
MACT NO. 85/11/10
IN THE MATTER OF:
1. Ms. Bershadska Tetyana
W/o Late Mr. Mykhailo Ivanovych Bershadskyi
2. Mr. Andriy Bershadskyi
S/o Late Mr. Mykhailo Ivanovych Bershadskyi
3. Mr. Vitalii Bershadskyi
S/o Late Mr. Mykhailo Ivanovych Bershadskyi
R/o: 9 A, Mikhaylovsky Lane, 49, Kyiv,
Ukraine - 01001.
... Petitioners
Versus
1. Mr. Surender Singh (Driver)
S/o Mr. Babu Lal
R/o V. & P.O. Bawana,
Delhi - 110 039.
2. M/s. KTC India Private Limited (Owner)
Through its Managing Director,
5H, Vandana Building, Tolstoy Marg,
New Delhi 110 001.
3. M/s. Bajaj Allianz General Insurance Company Limited (Insurer)
C31/32, 1st Connaught Place,
New Delhi - 110 001.
... Respondents
MACT No. 85/11/10 Ms. Bershadska Tetyana & Ors. v. Mr. Surender Singh & Ors. Page No. 1 of 57
Vehicle No. : DL1PB7962(Bus)
Valid from : 31/08/2007 to 30/08/2008
Policy No. : OG081101181200000306
FILED ON : 31.05.2010
RESERVED ON : 16.03.2013
DECIDED ON : 21.03.2013
J U D G M E N T :
1. This is a claim petition filed under Section 166 and 140 of the Motor Vehicles Act, 1988 for grant of compensation.
2. Petitioner No. 1 is the widow, Petitioner No. 2 and 3 are the major sons of Late Mr. Mykhailo Ivanovych Bershadskyi who suffered with fatal injuries in a Road Traffic Accident on 01.06.2008.
CASE OF THE PETITIONERS:
3. It is stated in this claim petition that on 01.06.2008, at about 00:50 A.M., the deceased along with other passengers was taking out his luggage from bus bearing Registration No. DL1PC 0624 opposite departure Gate No. 3, Terminal2, IGI Airport, New Delhi. At that time, one Bus bearing No. DL1PB7962, driven by Respondent No. 1 in a rash and negligent manner, at a very high speed, in total contravention of traffic rules and regulations and without caring for others on the road came and hit / struck with the Bus No. DL1PC0624 from its back side. As a result of this huge impact, Mr. Mykhailo Ivanovych Bershadskyi (hereinafter referred as the deceased) and other occupants of the bus suffered multiple grievous injuries.
MACT No. 85/11/10 Ms. Bershadska Tetyana & Ors. v. Mr. Surender Singh & Ors. Page No. 2 of 57
4. It is stated that the deceased was taken to Indian Spinal Injuries Centre where doctors on duty declared him 'Brought Dead'.
5. It is stated that the postmortem on the body of the deceased was conducted at Safdarjung Hospital.
6. It is stated that the accident had taken place due to rash and negligent driving of Respondent No. 1 and innocent persons became the victims of the same without their fault.
7. It is stated that FIR No. 206/08 was registered at P.S. IGI Airport under Section 279/337/304A of IPC against Respondent No. 1.
8. It is stated that the deceased was 56 years of age at the time of accident (Date of Birth 28.07.1951). The deceased was head of the Board of JSC "MAVT" and he was a Physical Person Entrepreneur.
9. It is also stated that the employer of the deceased was Closed Joint Stock Company, MAVT, Suite 43, Street 28/2A, Grushevsky, Kyiv, Ukraine and his annual income was $ 1,04,243.03 USD.
10. It is further stated that the deceased was doing very well in his business and other works and as a result of this his earnings were increasing periodically at a rapid speed.
11. It is further stated that prior to this accident, the deceased was awarded a tender to the tune of $ 16 million dollars but due to his death, the same was cancelled and a fresh tender was awarded to their organization to the tune of $ 3 million dollars only.
12. It is stated that the earlier tender was awarded to MACT No. 85/11/10 Ms. Bershadska Tetyana & Ors. v. Mr. Surender Singh & Ors. Page No. 3 of 57 their organization only on the basis of expertise, speciality and qualifications of the deceased.
13. It is stated that the earnings / income of the deceased would have increased with the passage of time as he was doing very well in his profession and was a talented and specialized expert in his field.
14. In these circumstances, petitioners have prayed for a compensation of Rs. 10 Crores along with interest @ 12% per annum from the date of filing of this claim petition till its realization.
CASE OF THE DRIVER AND OWNER OF THE OFFENDING VEHICLE:
15. The driver and the owner of the offending vehicle have filed a common written statement stating therein that the police has registered a false case against the alleged offending vehicle and the involvement of the alleged offending vehicle in the accident was denied.
16. The stand of Respondent No. 1 and 2 is that the petitioners have created a false and frivolous story just to get the compensation and the petitioners have claimed an exorbitant and exaggerated compensation without any justification.
17. They have also stated that the vehicle was insured with Respondent No. 3 and they are not liable to pay any compensation to the petitioners.
MACT No. 85/11/10 Ms. Bershadska Tetyana & Ors. v. Mr. Surender Singh & Ors. Page No. 4 of 57 CASE OF THE INSURANCE COMPANY:
18. The insurance company in its written statement has taken all the statutory defences available to an insurer.
19. Without admitting factum of accident and its liability, it is also stated by the insurance company that the liability of the answering respondent, if any, is as per the terms, conditions and exceptions of the insurance policy and as per the provisions of the Motor Vehicles Act.
20. Without admitting factum of accident, it is also stated that the accident, if any, has occurred solely due to the negligence of the deceased who violated traffic rules and regulations and under these circumstances, answering respondent is not liable to pay any compensation to the petitioners for the negligence of the deceased.
21. It is also stated that the petition is bad for non joinder of necessary parties inasmuch the owner and the insurer of vehicle bearing No. DL1PC0624 bus have not been impleaded as party respondents as the said vehicle was also involved and used in the alleged accident and its driver and the owner are necessary parties being joint tortfeasor.
22. On merits, the contents of the claim petition were denied but it was admitted that the vehicle bearing No. DL1PB7962 (Bus) was insured with the answering respondent in the name of M/s. KTC India Pvt. Ltd. vide Policy No. OG081101181200000306 w.e.f. 31.08.2007 to 30.08.2008 subject to the terms, conditions, exceptions and limitations of the insurance MACT No. 85/11/10 Ms. Bershadska Tetyana & Ors. v. Mr. Surender Singh & Ors. Page No. 5 of 57 policy.
23. Finally, it was prayed that the claim petition and claim for interim relief be dismissed with cost. ISSUES:
24. From the pleadings of parties, following issues were framed: i. Whether Mykhalio Ivanovych Bershadski, had sustained fatal injuries on his person in an accident which took place on 01.06.2008 due to negligent driving of vehicle bearing registration no. DL1PB7962 which was being driven by respondent no. 1, owned by respondent no. 2 & insured with respondent no. 3? ... OPP.
ii. In case, issue no. 1 is decided in favour of the petitioner, to what amount of compensation he is entitled to and from whom? ... OPP.
iii. Relief.
EVIDENCE ON BEHALF OF THE PETITIONERS:
25. One Mr. Satish Kumar, an eye witness to the accident, was the first witness examined by the petitioners to prove their case, as PW1.
26. PW1 filed his evidence by way of affidavit stating therein that on the date of accident, i.e. 01.06.08, at about 12.30 a.m., he was helping the passengers to take out their luggage from back portion of the bus bearing No. DL1PC0624, opposite Departure Gate No. 3, Terminal 2, IGI Airport, P.S. IGI Airport, New Delhi and at that time, the offending vehicle bus bearing No. MACT No. 85/11/10 Ms. Bershadska Tetyana & Ors. v. Mr. Surender Singh & Ors. Page No. 6 of 57 DL1PB7962, driven by Respondent No. 1 in a rash and negligent manner, at a high speed, in total contravention of traffic rules and regulations and without caring for others on the road, came and hit/struck with the bus bearing No. DL1PC0624 at its back side and due to this huge impact, he and other bus passengers sustained multiple grievous injuries.
27. PW1 deposed that from the place of accident, he and other injured were removed to Indian Spinal Injuries Centre and he later on came to know that one passenger who had sustained grievous injuries in this accident had succumbed to those injuries.
28. PW1 deposed that the accident was caused solely due to the rash and negligent driving of Respondent No. 1 /Mr. Surender Singh who was driving the offending vehicle/bus bearing No. DL1PB7962 at the time of accident and innocent persons became the victims of the same without their own fault.
29. PW1 was cross examined by counsel for Respondent No. 1 and 2 and PW1 deposed in his cross examination that he is working with M/s. Panikar Travels as a helper and is assigned duties with the bus bearing Registration No. 0624. He deposed that he is working with M/s. Panikar Travels since last two/three years. He deposed that he does not remember the date and month of the accident but the accident had taken place about two years ago, around 12 midnight. He deposed that he himself had also sustained injuries in this accident.
30. PW1 further deposed that besides himself one foreigner and two/three other passengers had sustained injuries MACT No. 85/11/10 Ms. Bershadska Tetyana & Ors. v. Mr. Surender Singh & Ors. Page No. 7 of 57 and the offending vehicle had come from the back side bearing Registration No. 7962. He deposed that he does not remember the complete registration number of the offending vehicle and he was also taken to a nursing home but he does not remember the name of the said nursing home as he was unconscious at that time.
31. Other suggestions contrary to his examination in chief were denied by him.
32. Second witness examined by petitioners was Mr. Andriy Bershadskyi, Petitioner No. 2, one of the two sons of the deceased, who entered in the witness box as PW2.
33. PW2 filed his evidence by way of affidavit and deposed that his father, Mr. Mykhailo Ivanovych Bershadskyi, had met with a road accident on 01.06.08 and he succumbed to the injuries. The deceased was 56 years old (DOB 28.06.51) and left behind claimants, as his only LRs.
34. PW2 deposed that his grand parents had died prior to the accident. He deposed that the deceased was a professionally qualified and was head of the Board of the Closed Joint Stock Company "MAVT" which was formed on 22.03.1996 and was also a Physical Person Entrepreneur as Commercial and Managerial Consultant. He was getting monthly salary from Closed Joint Stock Company "MAVT" to the tune of 26,568.54 UAH from 01.01.08 to 31.05.08 and had also earned 4,99,858.77 UAH as Physical Person Entrepreneur for a period from 01.01.08 to 31.05.08. He further stated that the deceased was doing very well in his business, as a result of which his earnings were increasing periodically at a rapid speed. He deposed that prior to this accident, MACT No. 85/11/10 Ms. Bershadska Tetyana & Ors. v. Mr. Surender Singh & Ors. Page No. 8 of 57 the deceased was awarded a contract to the tune of $ 13 million but due to his death, the same was canceled and a fresh contract was awarded to their organisation to an extent of $ 1,50,000 USD which was further reduced to $ 1,00,000 USD by a new contract and ultimately even this last contract was also terminated.
35. PW2 stated that the earlier contract was awarded to their organisation only on the basis of expertise, specialty and qualifications of the deceased. The earnings of the deceased would have increased much more with the passage of time as he was doing very well in his profession and was a very talented and specialised person in his field.
36. In his examination in chief, this witness exhibited following documents:
PW2/1 : Copy of certificate of State (1)Ex.
Registration of Legal Entity of Closed Joint Stock Company "MAVT".
PW2/2 : Attested translated copy in (2)Ex.
English of Certificate of State Registration of Legal Entity of Closed Joint Stock Company "MAVT".
(3)Ex. PW2/3 : Copy of Charter of the Closed Joint Stock Company "MAVT".
PW2/4: Attested translated copy in (4)Ex.
English of Charter of the Closed Joint Stock Company "MAVT".
(5)Ex.PW2/5 : Copy of certificate of tax payer registration of JSC MAVT.
(6)Ex.PW2/6 : Attested translated copy in English of certificate of tax payer registration MACT No. 85/11/10 Ms. Bershadska Tetyana & Ors. v. Mr. Surender Singh & Ors. Page No. 9 of 57 of JSC "MAVT".
(7)Ex.PW2/7 : Copy of Protocol No. 5 dated 10.04.1997 of Joint Meeting of the Joint Stock Company "MAVT".
PW2/8 : Attested translated copy in (8)Ex.
English of Protocol No. 5 dated 10.04.1997 of Joint Meeting of the Joint Stock Company "MAVT".
PW2/9 : Copy of Protocol No. 3 dated (9)Ex.
27.10.04 of Joint Meeting of the Joint Stock Company "MAVT".
(10)Ex.PW2/10 : Attested translated copy in English of Protocol No. 3 dated 27.10.04 of Joint Meeting of the Joint Stock Company "MAVT".
(11)Ex.PW2/11 : Copy of Protocol No. 2 dated 16.06.08 of Joint Meeting of the Joint Stock Company "MAVT".
(12)Ex.PW2/12 : Attested translated copy in English of Protocol No. 2 dated 16.06.08 of Joint Meeting of the Joint Stock Company "MAVT".
(13)Ex.PW2/13 : Copy of Protocol No. 8 dated 10.10.11 of Joint Meeting of the Joint Stock Company "MAVT".
(14)Ex.PW2/14 : Copy of certificate about gross payroll deducting insurance contributions of income tax issued to the deceased Mr. Bershadskyi Mykhailo Ivanovych from January, 07 to December, 07.
(15)Ex.PW2/15 : Attested translated copy in MACT No. 85/11/10 Ms. Bershadska Tetyana & Ors. v. Mr. Surender Singh & Ors. Page No. 10 of 57 English certificate about gross payroll deducting insurance contributions and income tax issued to the deceased Mr. Bershadskyi Mykhailo Ivanovych from January, 07 to December, 07.
(16)Ex.PW2/16 to Ex.PW2/39 : Copies of salary payroll for the month of January, 07 to December, 07 alongwith attested copies in English.
(17)Ex.PW2/40 to Ex.PW2/65 : Copies of tax receipts for the month of January, 07 to December, 07 alongwith attested translated copy in English.
(18)Ex.PW2/66 : Copy of certificate about gross payroll deducting insurance contributions and income tax issued to deceased Sh.
Bershadskyi Mykhailo Ivanovych from January, 08 to May, 08.
(19)Ex.PW2/67 : Attested translated copy in English of certificate about gross payroll deducting insurance contributions of income tax issued to deceased Sh. Bershadskyi Mykhailo Ivanovych from January, 08 to May, 08. (20)Ex.PW2/68 to Ex.PW2/79 : Copies of salary payroll for the month of January, 08 to June, 08 alongwith attested translated copy in English.
(21)Ex.PW2/8091 : Copy of tax receipts for the month of January, 08 to June, 08 alongwith attested translated copies in English.
(22)Ex.PW2/92 copy of certificate for State Registration of Physical Person -
MACT No. 85/11/10 Ms. Bershadska Tetyana & Ors. v. Mr. Surender Singh & Ors. Page No. 11 of 57 Entrepreneur.
(23)Ex.PW2/93 : Attested translated copy in English of certificate for State Registration of Physical Person - Entrepreneur.
(24)Ex.PW2/94113 : Copy of statement of Physical Person Entrepreneur from the third quarter of the year 2007 to the second quarter of the year 2008 alongwith the Tax receipts and the attested translated copy in English in respect of deceased Mr. Bershadskyi Mykhailo Ivanovych.
(25)Ex.PW2/114 & Ex.PW2/115 : Copies of Decree of the President of Ukraine vide No. 746/99 dt. 28.06.99 alongwith translated copy in English.
(26)Ex.PW2/116 to Ex.PW2/131 : Copies of bank statements of deceased Mr. Bershadskyi Mykhailo Ivanovych alongwith attested translated copies in English.
(27)Ex.PW2/132 : Copy of Diploma in Mechanized Infantry Officer and Armoured Vehicle Engineer awarded to deceased Mr. Bershadskyi Mykhailo Ivanovych.
(28)Ex.PW2/133 : Copy of Diploma in Mechanized Infantry Officer and Armoured Vehicle Engineer awarded to deceased Mr. Bershadskyi Mykhailo Ivanovych.
(29)Ex.PW2/134 : Copy of Diploma in Degree Officer awarded to deceased Mr. Bershadskyi Mykhailo Ivanovych.
(30)Ex.PW2/135 : Copy of Diploma in Degree Officer awarded to deceased Mr. Bershadskyi MACT No. 85/11/10 Ms. Bershadska Tetyana & Ors. v. Mr. Surender Singh & Ors. Page No. 12 of 57 Mykhailo Ivanovych.
(31)Ex.PW2/136 & Ex.PW2/137 : Copies of Marriage Certificate dated 20.09.1973 alongwith its attested translated copy in English.
(32)Ex.PW2/138 to Ex.PW2/141 : Copies of Birth Certificate of PW2 and his brother, Petitioner No. 2 dated 07.06.1984 algonwith their attested translated copies in English.
(33)Ex.PW2/142 to Ex.PW2/144 : Copies of passport of Petitioner No. 1 and PW2.
(34)Mark A and B : Copies of passport of Petitioner No. 3 and the deceased.
(35)Ex.PW2/145 : Copy of Power of Attorney dated 10.10.2011.
(36)Ex.PW2/146 : Copy of Agreement
amounting $ 14,100,000/ USD.
(37)Ex. PW2/147 : Copy of Agreement
amounting $ 16,100,000/ USD.
(38)Ex.PW2/148 : Copy of Termination
Agreement.
(39)Ex.PW2/149 : Copy of Termination
Agreement.
(40)Ex.PW2/150 : Copy of Agreement
amounting $ 1,50,000/ USD for Mining
Construction Works, Installation and Pre Commissioning of Equipment and Commissioning of Coal Mine.
(41)Ex.PW2/151 : Copy of Termination MACT No. 85/11/10 Ms. Bershadska Tetyana & Ors. v. Mr. Surender Singh & Ors. Page No. 13 of 57
Agreement for Mining Construction Works, Installation and Precommissioning of equipment and Commissioning of coal mine.
(42)Ex.PW2/152 : Copy of Agreement amounting $ 1,00,000/ USD for Mining Construction Works, Installation and Pre Commissioning of Equipment and Commissioning of Coal Mine.
(43)Ex.PW2/153 : Copy of Termination Agreement for Mining Construction Works, Installation and PreCommissioning of Equipment and Commissioning of Coal Min.
(44)Ex.PW2/154 : Certified copy of charge sheet.
(45)Ex. PW2/155 : Certified copy of FIR.
(46)Ex. PW2/156 : Certified copy of site plan.
(47)Ex. PW2/157 : Certified copy of Postmortem report.
37. At the time of exhibiting these documents, the learned counsel for the insurance company had raised objections qua the exhibition of these documents on account of mode of proof. The objection was kept open to be decided at the relevant time.
38. In the case of Bipin Shanti Lal Panchal v. State of Gujarat & Anr., a judgment of the Hon'ble Supreme Court of India dated 22.02.2001 in SLP No. 223/2000, it was held as under: "Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the MACT No. 85/11/10 Ms. Bershadska Tetyana & Ors. v. Mr. Surender Singh & Ors. Page No. 14 of 57 objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable the judge or magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.) The above procedure, if followed, will have two advantages. First is that the time in the trial court, during evidence taking stage, would not be wasted on account of raising such objections and the court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior court, when the same objection is recanvassed and reconsidered in appeal or revision against the final judgment of the trial court, can determine the correctness of the view taken by the trial court regarding that objection, without bothering to remit the case to the trial court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses.
We, therefore, make the above as a procedure to be followed by the trial courts whenever an objection is raised regarding the admissibility of any material or any item of oral evidence."
39. Therefore, objection regarding admissibility of these documents will be considered now while deciding the claim petition finally.
MACT No. 85/11/10 Ms. Bershadska Tetyana & Ors. v. Mr. Surender Singh & Ors. Page No. 15 of 57
40. PW2 was cross examined by the learned counsel for the insurance company and PW2 deposed in his cross examination that he is the eldest son of the deceased and is unmarried. He is educationally qualified being MBA, Law Graduate as well as Mechanical Engineer. He works for his own company namely M/s. MAVT since 2004.
41. He deposed that Petitioner No. 3, his younger brother, is also educationally qualified being Post Graduate in Business Management. Earlier Petitioner No. 3 was also a member of the company M/s. MAVT from where he was drawing salary till last year when he resigned.
42. So far as Petitioner No. 1, Widow of the deceased is concerned, PW2 deposed that at present she is not working anywhere and lastly she was working in M/s. MAVT but she left this company two years ago.
43. He deposed that before the death of his father, he as well as Petitioner No. 3 were living separately having separate house holds.
44. He denied a suggestion that even today all the three petitioners are drawing salary from the company MAVT.
45. He deposed that he is an income tax payee and the company MAVT is a Private Joint Stock Company and shares in the company are closely held within the family and no outsider is the share holder of this company.
46. He deposed that as per family settlement, he has inherited the share holding of his father in the company.
47. He also deposed that other petitioners are also MACT No. 85/11/10 Ms. Bershadska Tetyana & Ors. v. Mr. Surender Singh & Ors. Page No. 16 of 57 income tax payee but PW2 was not able to tell what was the income of the petitioners before the accident and after the accident.
48. He deposed that the deceased had life insurance policy for traveling abroad and the insurance policy amount was $ 30,000 approximately and this amount was split between his mother and his brother which they had received from the insurance company "Chartis". He deposed that except for policy referred above, the petitioners did not receive any monetary benefit on the death of the deceased. He deposed that the petitioners did not make any claim for payment under Social Security Coverage as the amount offered is meager.
49. He also deposed that in some cases, family pension is also given to the dependents of the deceased of road accidents in Ukraine but what are those circumstances in which this pension is given was not known to him.
50. He deposed that his mother, as a family decision, stopped getting any salary from the company after the death of his father.
51. He denied a suggestion that the petitioners were not financially dependent upon the deceased.
52. He admitted that the documents exhibited during his statement are not authenticated or attached with an apostille. However, he said that apostille is not required.
53. He deposed that Ex. PW2/1665 and Ex.
PW2/6891 are not translated by an official translator.
54. He deposed that the deceased had two military degrees in Mechanised Infantry Officer and Armoured Vehicle MACT No. 85/11/10 Ms. Bershadska Tetyana & Ors. v. Mr. Surender Singh & Ors. Page No. 17 of 57 Engineer.
55. He further deposed that in Ost West Commerce GmbH, the deceased is shown as a Power of Attorney holder in Ex. PW2/146 and Ex. PW2/147. It is a company owned by his family and was registered in Germany. Power of Attorney referred to in Ex. PW2/146 and Ex. PW2/147 was produced at the time of cross examination of this witness and was exhibited as Ex. P1.
56. He deposed that there is no clause in agreement Ex. PW2/146 and Ex. PW2/147 to show that this agreement was given to him because of expertise or specialization of his father or experience of his father in this field. He deposed that Ex. PW2/146 was terminated vide Termination Agreement Ex. PW2/148 and thereafter a fresh agreement was executed on reduced quantity on the same day with MAVT which is Ex. PW2/150 and Ex. PW2/151. He further deposed that the termination agreement and fresh agreements were executed with mutual consent of both the parties.
57. He denied suggestions that exhibited documents cannot be taken into consideration for determining the compensation or the documents are forged or fabricated or without appostille, these documents are not admissible in evidence.
58. Third and last witness examined on behalf of petitioners was Mr. Rama Shanker Singh, Director of M/s. Electrosteel Casting Ltd. who deposed that he was Executive Director in that company on 15.09.07 when an agreement was executed between his company and Ost West Commerce GmbH and that agreement was already exhibited as Ex. PW2/146.
59. He deposed that nature of job assigned to Ost West MACT No. 85/11/10 Ms. Bershadska Tetyana & Ors. v. Mr. Surender Singh & Ors. Page No. 18 of 57 Commerce was supply of equipment, erection and commissioning of mines as a whole with the expectation that the said company would perform its part of duty to their satisfaction. He deposed that the deceased had expertise in mining and therefore the agreement was signed with him. He deposed that the agreement was terminated as it was the discretion of the contractual parties and after the death of the deceased, they were not having confidence in capability of Ost West Commerce GmbH to perform the agreement.
60. He deposed that international companies do not disclose profits out of such agreements but profit margin in such agreements may be 1518% of the contract amount.
61. The witness was cross examined by counsel for insurance company and PW3 admitted in his crossexamination that there is no document on record where his Director Identification Number may have been mentioned. He did not remember whether any meeting of Board of Directors had taken place and any resolution was passed in his favour for signing agreement dated 15.09.07.
62. He deposed that in termination agreement, reason for termination is not given and he does not remember whether any Board of Directors meeting had taken place for terminating the agreement dated 15.09.2007. He deposed that some consideration pursuant to agreement must have been sent to Ost West Commerce but he did not remember the amount given to the supplier company by them though the payment was through cheque.
63. He denied a suggestion that for non passing of any consideration from his company to the supplier company the MACT No. 85/11/10 Ms. Bershadska Tetyana & Ors. v. Mr. Surender Singh & Ors. Page No. 19 of 57 agreement was terminated.
64. He denied suggestions that all the agreements relied upon by the petitioners between his company and Ost West Commerce are forged and fabricated.
EVIDENCE ON BEHALF OF RESPONDENT NO. 1 AND 2:
65. Respondent No. 1 and 2 did not examine any witness.
EVIDENCE ON BEHALF OF RESPONDENT NO. 3:
66. On behalf of insurance company, a witness was summoned from Transport Authority, Delhi who produced attested copy of permit of the offending vehicle which is All India Tourist Permit and the same was exhibited as Ex. R3W1/1. He deposed that on the date of accident, the permit was valid. The witness did not know whether there is a condition that only a named driver can drive the vehicle in question as provided under Rule 7 A of the Delhi Motor Vehicles Rules.
67. No other witness was examined by any other party.
68. Arguments were addressed by Mr. J.S. Yadav, learned Counsel for the petitioners assisted by Sh. Nitin Yadav, Advocate and Mr. Atul Nanda, learned Senior Advocate for the insurance company assisted by Sh. M.P. Shahi, Advocate. Learned counsel for the petitioners as well as learned Senior Advocate for the insurance company also filed their written arguments as well as MACT No. 85/11/10 Ms. Bershadska Tetyana & Ors. v. Mr. Surender Singh & Ors. Page No. 20 of 57 copies of citations in support of their rival cases.
69. No arguments were addressed on behalf of Respondent No. 1 and 2.
70. On the basis of pleadings of parties, evidence on record and arguments addressed, issuewise findings are as under: ISSUE NO. 1:
71. Burden of proving this issue is on the petitioners.
72. For succeeding in a claim petition filed under Section 166 of the Motor Vehicles Act, 1988 it is for the petitioners to prove that the vehicle which caused the accident was being driven rashly and negligently by its driver.
73. This is rather sine qua non for getting the relief.
74. Petitioners have examined an eye witness to the accident, Mr. Satish Kumar, PW1 who has stated in his evidence by way of affidavit that on 01.06.08, at about 12.30 a.m., he was helping the passengers in taking out their luggage from back portion (dickey) of the bus bearing no. DL1PC0624, opposite Departure Gate No. 3, Terminal 2, IGI Airport, P.S. IGI Airport, New Delhi and at that time the offending vehicle bearing No. DL1PB7962, driven by Respondent No. 1 in a rash and negligent manner, at a high speed, in contravention of traffic rules and regulations and without caring for the safety of others on the road, struck with the bus No. DL1PC0624 from its backside and due to this impact, he and other bus passengers sustained multiple grievous injuries. He deposed that one of the passengers who had suffered grievous injuries succumbed to the injuries in the hospital. Thus, PW1 deposed that the accident in question had taken place due to rash and negligent MACT No. 85/11/10 Ms. Bershadska Tetyana & Ors. v. Mr. Surender Singh & Ors. Page No. 21 of 57 driving of Respondent No. 1.
75. In cross examination, PW1 could only tell that the registration number of the offending vehicle was 7962. He did not remember the complete registration number of the offending vehicle. PW1 denied a suggestion that the accident had not taken place in his presence or he could not see the offending vehicle in the darkness of night.
76. Respondent No. 1 and 2 have denied altogether, in their written statement, that any accident was caused by Respondent No. 1 while driving the offending vehicle owned by Respondent No. 2.
77. However, Respondent No. 1 did not enter in the witness box to prove the defence taken by them that he is falsely implicated as an accused in FIR No. 206/08 under Section 279/337/304 A of IPC registered at P.S. IGI Airport on 01.06.08.
78. Police after investigation has filed charge sheet against Respondent No. 1 under Section 279/337/304 A of IPC against Respondent No. 1 which is also prima facie suggestive of negligence of Respondent No. 1 in driving the offending vehicle.
79. Presence of PW1, Mr. Satish Kumar, is also established at the place of accident as he is the complainant in the FIR and is shown as the first prosecution witness in the charge sheet filed by the Police.
80. Perusal of the site plan also shows beyond doubt that the accident was caused due to negligence of Respondent No. 1 inasmuch as the vehicle no. DL1PC0624 is shown parked in front of Gate No. 3 of the Airport and offending vehicle no. DL1PB7962 MACT No. 85/11/10 Ms. Bershadska Tetyana & Ors. v. Mr. Surender Singh & Ors. Page No. 22 of 57 had hit the earlier said vehicle from behind and blood stains were also found at Point C which could not have been the case but for negligence of Respondent No. 1.
81. The mere fact that the deceased was taking out his luggage from back portion of another bus in front of IGI Airport and was hit from behind by the offending vehicle shows that Respondent No. 1 was driving the offending vehicle in a rash and negligent manner.
82. Applying principle of res ipsa locquitar, negligence of Respondent No. 1 is evident.
83. In Ranu Bala Paul & Ors. v. Bani Chakraborty & Ors., 1999 ACJ 634, the Hon'ble Gawhati High Court has observed as under: "In deciding a matter tribunal should bear in mind the caution struck by the Apex Court that a claim before the Motor Accidents Claims Tribunal is neither a criminal case nor a civil case. In a criminal case in order to have conviction, the matter is to be proved beyond reasonable doubt and in a civil case the matter is to be decided on the basis of preponderance of evidence, but in a claim before the Motor Accidents Claims Tribunal the standard of proof is much below than what is required in a criminal case as well as in a civil case. No doubt before the tribunal there must be some material on the basis of which the tribunal can arrive or decide things necessary to be decided for awarding compensation. But the tribunal is not expected to take or to adopt the nicety of a civil or of a criminal case. After all, it is a summary inquiry and this is a legislation for the welfare of the society"
84. In the case of National Insurance Co. Ltd. v. Vijay MACT No. 85/11/10 Ms. Bershadska Tetyana & Ors. v. Mr. Surender Singh & Ors. Page No. 23 of 57 Laxmi & Ors., MAC APP. No. 375/06 dated 05.07.12, the Hon'ble High Court of Delhi has held as under: "8. In Bimla Devi and Ors. v. Himachal Road Transport Corporation and Ors., (2009) 13 SC 530, the Supreme Court held that in a petition under Section 166 of the Act, the Claimants were merely to establish their case on the touchstone of preponderance of probability and holistic view is to be taken while dealing with the Claim Petition under the Motor Vehicles Act. Para 15 of the report is extracted hereunder: "15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was 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."
9. The report in Bimla Devi (Supra) was relied on by the Supreme Court in its latest judgments in Parmeshwari v. Amir Chand (2011) 11 SCC 635 and Kusum Lata v. Satbir, (2011) 3 SCC 646."
85. In the case of National Insurance Company Ltd. v. Pushpa Rana & Ors.: 2009 ACJ 287, the Hon'ble High Court of Delhi has held that: "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 Co. 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 F.I.R No. 955 of 2004, pertaining MACT No. 85/11/10 Ms. Bershadska Tetyana & Ors. v. Mr. Surender Singh & Ors. Page No. 24 of 57 to involvement of the offending vehicle; (ii) criminal record showing completion of investigation of police and issue of chargesheet under Sections 279/304A, Indian Penal Code against the driver; (iii) certified copy of F.I.R., wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of the deceased. These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under the Motor Vehicles 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 the part of the driver."
86. This case was noticed by Hon'ble High Court of Delhi in the case titled as Cholamandalam M.S. General Insurance Co. Ltd. v. Kamlesh: 2009 (3) AD (Delhi) 310 where adverse inference was drawn because the driver of the offending vehicle had not appeared in the witness box to corroborate his defence taken in the written statement. It was noted that there is nothing on record to show that the claimant had any enmity with the driver of offending vehicle so as to falsely implicate him in the case.
87. Even otherwise, the respondents have not addressed any argument that the accident was not caused due to the negligence of Respondent No. 1.
88. Therefore, this issue is decided in favour of the petitioners and against the respondents.
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89. Learned counsel for the petitioners has argued that the income of the deceased was from three sources. First source of income of the deceased was the deceased being a Physical Person Entrepreneur - Commercial and Managerial Consultant.
90. The arguments of learned counsel for the petitioners visavis income of the deceased as a Physical Person Entrepreneur are as under: "That the deceased was a registered physical person entrepreneur in Ukraine which is exhibited as Ex PW2/93.
That before going into the income of the deceased as a physical person entrepreneur we have to read out the law of Ukraine regarding the physical person entrepreneur which are exhibited as EX PW2/115.
That after going through the law of physical person entrepreneur we have to go on the income of the deceased through physical person entrepreneur for which we have filed the statement from tax department for the 1st quarter of the year 2008 and 2nd quarter of year are exhibited as PW 2/109 and Ex PW 2/113 these documents are statement given by the tax department wherein the income of the deceased was shown 499858.77 UAH (USD 98981.93 calculated at the exchange rate of 5.05 UAH per USD) that further statement from Tax Department for the 3rd quarter of 2007 and 4th quarter of 2007 are exhibited as Ex.PW2/95 and Ex.PW2/101.
That to support the income the statement of bank account is also filed of deceased along with statement from tax department which are exhibited as Ex PW2/117 to PW 2/131."
MACT No. 85/11/10 Ms. Bershadska Tetyana & Ors. v. Mr. Surender Singh & Ors. Page No. 26 of 57
91. On the other hand, the first and foremost argument of learned Senior Advocate of the insurance company in its written submissions is that the documents exhibited by the petitioners are not admissible in evidence for the following reasons: i. Originals of the documents in question ought to have been produced before this Hon'ble Court in terms of Section 62 and Section 64, the production of secondary evidence not being permissible as the nature of the documents do not bring it within any of the circumstances contained in Section 65, hence none of the documents exhibited by the Petitioners are admissible;
ii. Assuming that the secondary evidence was permissible then such secondary evidence would have to be in terms of Section 63;
whereas none of the documents which have been exhibited purport to be documents so copied / certified in terms of Section 65;
iii. Assuming while denying that some or all of these documents are in the nature of foreign public documents [which could be the highest case possible] even so there has been no certification in terms of Section 78(3) of The Indian Evidence Act, 1872 in that neither the original has been produced before this Hon'ble Court nor a copy of the original certified by the legal keeper of such document has been produced.
92. The learned Senior Advocate of the insurance company has relied on the judgment titled as Shrichand P. Hinduja MACT No. 85/11/10 Ms. Bershadska Tetyana & Ors. v. Mr. Surender Singh & Ors. Page No. 27 of 57 and Others Vs. State through CBI, ILR (2005) II Delhi 111 in support of his submissions regarding inadmissibility of the documents. Learned Senior Advocate of the insurance company relied on para 36 of the said judgment which reads as under: "36. It is important to mention that Section 78 clause (6) of the Indian Evidence Act requires not only that the foreign document should be a certified copy issued by the legal keeper thereof but must be accompanied by a certificate under the seal of a notary public or an Indian Consul or diplomatic Agent that the copy is duly certified by the officer having the legal custody of the original. Both these conditions are not and can not be satisfied."
93. The learned counsel for the petitioners rebutted this objection regarding inadmissibility of the exhibited documents in following manner: i. Petitioners relied on the judgment passed by the Hon'ble High Court of Delhi titled as Mayur Arora Vs. Amit @ Pange and Others decided on 12.04.2010 in MAC Appeal No. 609/09 to submit that directions have been given to all the insurance companies whether in a pending case or in a new case insurance company has to appoint an investigator who has to check and verify the documents filed by the petitioner and file his report regarding the authenticity of the document filed by the petitioner. Reliance was placed on following observations of the Hon'ble High Court in the case of Mayur Arora (Supra): "The insurers can either by relying upon the police report (AIR) or by enquiring with the family or the employer of the deceased, ascertain the three inputs required for calculations of the compensation, that is, age of MACT No. 85/11/10 Ms. Bershadska Tetyana & Ors. v. Mr. Surender Singh & Ors. Page No. 28 of 57 the deceased, income of the deceased and number of dependent family members. With these particulars, the insurers can easily calculate the compensation and offer a compensation either a lump sum or an annuity".
ii. Counsel for the petitioners relied on United India Insurance Company Limited Vs. Patricia Jean Mahajan and Ors., 2001 ACJ 1051 and submitted that the Hon'ble High Court of Delhi has laid down the law regarding the appreciation of evidence where claimants produced income tax return to establish the income of the deceased, an NRI who was a practicing doctor in America. Reliance was placed on following paragraphs from the said judgment: "It must be pointed out at the very outset that neither appellant nor respondents 7 and 8 have led any evidence to dispute the details of income disclosed by widow of deceased. She had claimed that his income was $ 9 lakhs and had supported this by Income Tax Returns attested by an American Public Accountant and certified by Consulate General of India at Chicago. She could not have possibly done better to prove his income and loss of dependency. Nor could she be expected of to produce witnesses to prove the Income Tax Returns when no objection was taken to these genuineness of these by appellant or respondent 7 and 8. Moreover, it is settled by now that Rules of evidence were not required to be followed to the hilt in adjudication of accident claim and in any case when these Income Tax returns were certified by Consulate General of India, these were admissible in evidence without any proof in terms of Section MACT No. 85/11/10 Ms. Bershadska Tetyana & Ors. v. Mr. Surender Singh & Ors. Page No. 29 of 57 3(2) of the Diplomatic and Consular Officers (Oaths and Fees) Act, 1947. The relevant provisions read thus:
"(2) Any document purporting to have affixed, impressed or subscribed thereon or thereto the seal and signature of any person authorised by this Act to administer an oath in testimony of any oath, affidavit or act, being administered, taken or done by or before him, shall be admitted in evidence without proof of the seal or signature being the seal or signature of that person, or of the official character of that person."
iii. The last argument of counsel for the claimant was that the insurance company before cross examining PW2 had filed an application on 01.11.2011 to extend the time for cross examination of PW2 for the reason that all the documents filed with the affidavit are of Ukraine and require verification and authentication according to law of foreign country i.e. Ukraine for which some more time is required. It was further stated in that application that the insurance company is still searching some honest and prudent agency and tax consultant in Ukraine for the purposes of verifying authentication of all the documents and corresponding translation. Therefore, counsel for the petitioners argued that the documents filed by PW2 are authenticated as even after getting time to verify the documents Respondent No. 3 choose not to lead any evidence to dispute the authenticity of the documents filed by PW2.
94. In the light of rival contentions, the first question before this Tribunal is whether petitioners have proved that the MACT No. 85/11/10 Ms. Bershadska Tetyana & Ors. v. Mr. Surender Singh & Ors. Page No. 30 of 57 deceased was a registered Physical Person Entrepreneur in Ukraine?
95. Ex. PW2/93 is a translation from Ukrainian into English of certificate for State Registration of Physical Person Entrepreneur. As per this, the deceased was registered as a Physical PersonEntrepreneur on 15.09.2003. The document is certified by a certified translator Mr. Andrew N. Garazhiev who has stated that he had completed the translation of this document and certified that it is accurate in accordance with the attached original document. He has certified that he is competent to perform this kind of translation.
96. This document is also attested by notary public who certified the signature under translation made by the hand of competent translator Mr. Andrew N. Garazhiev before him.
97. This document is also certified to be true signature without commitment to the veracity of the contents of the documents by Second Secretary, Embassy of India, Kyiv.
98. In evidence by way of affidavit, PW2 has exhibited copy of certificate for State Registration of Physical Person Entrepreneur as Ex. PW2/92. Original was seen and returned. The attested translated copy in English of certificate for State Registration of Physical Person Entrepreneur is Ex. PW2/93.
99. The above shows that the petitioners have proved by primary evidence Registration Certificate of the deceased as Physical Person Entrepreneur by producing the document itself for the inspection of the Court.
100. Since the document is in Ukraine, its translation is also proved in English inasmuch as it is certified to be accurate MACT No. 85/11/10 Ms. Bershadska Tetyana & Ors. v. Mr. Surender Singh & Ors. Page No. 31 of 57 translation by certified translator and signatures of translator are attested by notary public as well as Second Secretary, Embassy of India, Kyiv.
101. The insurance company had taken time before crossexamining PW2 to verify the authenticity of the documents filed on record by the petitioners by engaging some honest and prudent agency and tax consultant in Ukraine for this purpose. However, no evidence was brought on record by the insurance company to show that the documents were fake or its translation was incorrect.
102. Therefore, petitioners have proved that the deceased was a Physical Person Entrepreneur with effect from 15.09.2003.
103. Law of Ukraine regarding the Physical Person Entrepreneur that is decree of the President of Ukraine - On the Simplified System of Taxation, Accounting and Reporting for Small Business Entities is Ex. PW2/114 and English translation thereof by Mr. Yarmosh Andriy Anatoliyovych, a certified translator is Ex. PW2/115. There is another certification by Ivanova Olga Oleksandrivna, Deputy Director of Donetska Regional Translation Agency, LLC certifying qualification and authenticity of the signature of a translator Mr. Yarmosh Andriy Anatoliyovych.
104. Next question is whether petitioners have proved income of the deceased being a Physical Person Entrepreneur as per law.
105. For income of the deceased as a Physical Person Entrepreneur, the petitioners have relied on statement from Tax MACT No. 85/11/10 Ms. Bershadska Tetyana & Ors. v. Mr. Surender Singh & Ors. Page No. 32 of 57 Department for the first quarter of the year, 2008 and second quarter of the year, 2008 as Ex. PW2/109 and Ex. PW2/113 respectively. Statement from Tax Department for the third quarter of 2007 and fourth quarter of 2007 were exhibited as Ex. PW2/95 and Ex. PW2/101.
106. In the evidence by way of affidavit, petitioners have exhibited as Ex.PW2/94113, copy of statement of a Small Business Entity - Physical Person Entrepreneur single tax payer from the third quarter of the year, 2007 to the second quarter of the year, 2008 along with the tax receipt and the attested translated copy in English in respect of the deceased. The originals thereof were shown and returned back. English translation of the statement is attested to be true copy of original.
107. Statement of a small business entity - Physical Person - Entrepreneur - Single Tax Payer for the third quarter of the year 2007 in the name of the deceased is Ex. PW2/95. As per this, total proceeds from sales of goods (works, services) in the fiscal quarter on a cumulative total from the effective date of the Single Tax Payment Certificate in the Calender Year was 1,87,739.00 UAH. A sum of 400.00 UAH was given as Single Tax in that fiscal quarter. Kind of Entrepreneurial activity is shown as "Commercial and Managerial Consulting".
108. Original of Ex. PW2/94 which is in Ukrainian language was produced before the Tribunal and was returned after seeing its original. The statement for third quarter of the year 2007 was translated in English by a Translator Mr. Yarmosh Andriy Anatoliyovych, a certified Translator. Mr. Ivanova Olga MACT No. 85/11/10 Ms. Bershadska Tetyana & Ors. v. Mr. Surender Singh & Ors. Page No. 33 of 57 Oleksandrivna, Dy. Director of Donetsk Regional Translation Agency, LLC, certified the qualification and the authenticity of the signature of Translator Mr. Yarmosh Andriy Anatoliyovych. Translation of this document and its compliance with the standard requirements was confirmed and verified by Mr. Ivanova Olga Oleksandrivna.
109. Statement of a Small Business Entity - Physical Person - Entrepreneur - Single Tax Payer for the fourth quarter of the year 2007 was proved as Ex. PW2/101. As per this, total proceeds from sales of goods (works, services) in the fiscal quarter on a cumulative total from the affective date of the Single Tax Payment Certificate in the Calender Year was 4,99,751.00 UAH. A sum of 1200.00 UAH was given as Single Tax in that fiscal quarter. Kind of Entrepreneurial activity is shown as "Commercial and Managerial Consulting".
110. Original of Ex. PW2/101 which is in Ukrainian language was produced before the Tribunal and was returned after seeing its original. The statement for fourth quarter of the year 2007 was translated in English by a Translator Mr. Andrew N. Garazhiev, a certified Translator. Mrs. Yuliya S. Kolyada, a Notory Public certified the signatures under translation made by the hand of translator Mr. Andrew N. Garazhiev. Second Secretary, Embassy of India, Kyiv certified this document to be true signature without commitment to the veracity of the contents of the documents.
111. Statement of a Small Business Entity - Physical Person - Entrepreneur - Single Tax Payer for the first quarter of the year 2008 was proved as Ex. PW2/109. As per this, total proceeds MACT No. 85/11/10 Ms. Bershadska Tetyana & Ors. v. Mr. Surender Singh & Ors. Page No. 34 of 57 from sales of goods (works, services) in the fiscal quarter on a cumulative total from the affective date of the Single Tax Payment Certificate in the Calender Year was 4,99,855.01 UAH. A sum of 1800.00 UAH was given as Single Tax in that fiscal quarter. Kind of Entrepreneurial activity is shown as "Commercial and Managerial Consulting".
112. Original of Ex. PW2/109 which is in Ukrainian language was produced before the Tribunal and was returned after seeing its original. The statement for first quarter of the year 2008 was translated in English by a Translator Mr. Yarmosh Andriy Anatoliyovych, a certified Translator. Mr. Ivanova Olga Oleksandrivna, Dy. Director of Donetsk Regional Translation Agency, LLC, certified the qualification and the authenticity of the signature of Translator Mr. Yarmosh Andriy Anatoliyovych. Translation of this document and its compliance with the standard requirements was confirmed and verified by Mr. Ivanova Olga Oleksandrivna.
113. Statement of a Small Business Entity - Physical Person - Entrepreneur - Single Tax Payer for the second quarter of the year 2008 was proved as Ex. PW2/113. As per this, total proceeds from sales of goods (works, services) in the fiscal quarter on a cumulative total from the affective date of the Single Tax Payment Certificate in the Calender Year was 4,99,858.77 UAH. A sum of 0.00 UAH was given as Single Tax in that fiscal quarter. Kind of Entrepreneurial activity is shown as "Commercial and Managerial Consulting".
114. Original of Ex. PW2/113 which is in Ukrainian MACT No. 85/11/10 Ms. Bershadska Tetyana & Ors. v. Mr. Surender Singh & Ors. Page No. 35 of 57 language was produced before the Tribunal and was returned after seeing its original. The statement for second quarter of the year 2007 was translated in English by a Translator Mr. Andrew N. Garazhiev, a certified Translator. Mrs. Yuliya S. Kolyada, a Notory Public certified the signatures under translation made by the hand of translator Mr. Andrew N. Garazhiev. Second Secretary, Embassy of India, Kyiv certified this document to be true signature without commitment to the veracity of the contents of the documents.
115. All the four statements of a Small Business Entity for four different quarters in the name of the deceased were produced in original before this Tribunal. All these four statements are translated in English by a certified translator whose signatures were attested by Notary Public as well as Second Secretary, Embassy of India, Kyiv.
116. Insurance company has not led any evidence to show that the translation is incorrect. Insurance company has not shown that these documents are forged and fabricated. This is inspite of an application by insurance company for adjournment for verification with the help of some honest and prudent agency and tax consultant in Ukraine for this purpose.
117. Learned Counsels for claimants submitted that in the third quarter of the year 2007, profits earned by the deceased as Physical Person Entrepreneur were 62,620 UAH which is shown deposited in his bank account as per Ex. PW2/117 where on 16.07.07 this amount was credited in the bank account of the deceased. Again 62,559 UAH were deposited in bank account as per Ex. PW2/119 on 14.08.07 and 62,559 UAH were deposited in the MACT No. 85/11/10 Ms. Bershadska Tetyana & Ors. v. Mr. Surender Singh & Ors. Page No. 36 of 57 account of the deceased on 17.09.07. Thus, income of the deceased as Physical Person Entrepreneur was 1,87,738 UAH in the first quarter of year 2007.
118. As per Ex. PW2/95 deceased had deposited a tax of 400 UAH on an income of 1,87,739 UAH in the third quarter of 2007 which proves that income of the deceased in the third quarter of 2007 was indeed 1,87,739 UAH.
119. So far as fourth quarter of the year 2007 is concerned, the deceased had earned 62,559 UAH on 26.10.07 which is evident from Ex. PW2/123. He had earned 62,559 UAH on 15.11.07 as per Ex. PW2/125 and had earned 1,86,850 UAH on 13.12.07 as per Ex. PW2/127.
120. Therefore, in the fourth quarter of the year 2007 he had earned 3,11,968 UAH. When income of 1,87,739 UAH earned in third quarter is added to this figure the income of the deceased in third and fourth quarter of 2007 is 4,99,707 UAH. That is why as per Ex. PW2/101, the deceased had shown his income till the fourth quarter of the year 2007 as 4,99,751 UAH.
121. In the first and second quarter of the year 2008, the deceased had earned 2,77,750 UAH as on 22.01.08. This is evident from Ex. PW2/129. He had earned 2,22,048 UAH as on 29.01.08 which is evident from Ex. PW2/131. That is why in the first and second quarter of the year 2008 the deceased had shown his income as 4,99,855 UAH as per Ex. PW2/109 and Ex. PW2/113.
122. Therefore, in the four quarters before his death the income of the deceased was 62,620 UAH + 62,559 UAH + 62,559 UAH + 62,559 UAH + 62,559 UAH + 1,86,850 UAH + 2,777,50 UAH + MACT No. 85/11/10 Ms. Bershadska Tetyana & Ors. v. Mr. Surender Singh & Ors. Page No. 37 of 57 2,22,048 UAH totaling 9,99,504 UAH.
123. However, according to the petitioners the tax liability on income as Physical Person Entrepreneur is as under: "In connection with the above mentioned provisions we calculated the liabilities appearing on the simplified system and general system of taxation (second half of 2008): In UAH Articles of 2008 income/expenses 1st quarter 2nd quarter 3rd quarter 4th quarter Total Income 499858.00 500000.00 500000.00 500000.00 1999858.00 Total expenses 600.00 600.00 148580.27 148664.93 298445.20 Single tax 348.00* 348.00* 0.00 0.00 696.00 VAT 0.00 0.00 83333.00 83333.00 166666.00 Pension Fund 252.00* 252.00* 3232.02 3331.62 7067.64 Income Tax for 0.00 0.00 62015.25 62000.31 124015.56 Private Entities Net income 499258.00 499400.00 351419.73 351335.07 1701412.80 *Paragraph 9 Article 2 of Order No. 727 VAT Calculation: 500000 * (20/120) = 83333 Calculation of contribution to Pension Fund:
For the 3rd quarter: 9735 * 33.2/100 = 3232.02, (500000 - 83333) > (649*15), For the 4th quarter: 10035 * 33.2/100 = 3331.62, (500000 - 83333) > (699*15) Calculation of income tax for private entities:
For the 3rd quarter: (500000 833333 - 3232.02) * 15/100 = 62015.25 For the 4th quarter: (500000 - 833333 - 3331.62) * 15/100 = 62000.31
124. On the other hand, the objection of insurance company against treating income of the deceased being a Physical Person - Entrepreneur - Single Tax Payer is that these documents do not prove "income" of the deceased and represents the gross income/proceeds of the deceased. The insurance company has relied on Ukrainian Tax Code in this regard.
MACT No. 85/11/10 Ms. Bershadska Tetyana & Ors. v. Mr. Surender Singh & Ors. Page No. 38 of 57
125. It is not shown by the insurance company that the income is gross income of the deceased being Physical Person Entrepreneur.
126. However, calculations of the petitioners are also not acceptable because it cannot be presumed that the deceased would have continued to earn 5,00,000 UAH per quarter in the year, 2008 as there are many uncertainties in a business.
127. A Physical Person Entrepreneur pays a tax of 200 UAH every month or 2400 UAH per annum. Once 2400 UAH is deducted from 9,99,504 UAH, then the income of the deceased as Physical Person Entrepreneur comes to 9,97,104 UAH.
128. Rate of exchange of UAH to Rupees as on 18.03.13 was 1 UAH = 6.6603 INR. Therefore, income of the deceased as Physical Person Entrepreneur at the time of his death was 9,97,104 UAH or Rs. 66,41,011/.
129. Second source of income of the deceased was income as Head of the Board of the company JSC "MAVT".
130. Case of claimants is that the deceased was drawing a salary of 26,568.54 UAH w.e.f. 01.01.08 to 31.05.08.
131. Ex. PW2/67 is a certificate given by Head of the Board JSC "MAVT" signed by Mr. A.M. Bershadskyi dated 06.05.10 certifying about gross pay role deducted insurance contributions and income tax of the deceased. As per this, gross income of the deceased in the month of January, 2008 was 5204.88 UAH, income in the month of February, 2008 was 6000.00 UAH, income in the month of March, 2008 was 6000.00 UAH, income in the month of April, 2008 was 6017.47 UAH and income in the month of May, 2008 MACT No. 85/11/10 Ms. Bershadska Tetyana & Ors. v. Mr. Surender Singh & Ors. Page No. 39 of 57 was 3346.19 UAH.
132. There are three deductions in this salary which are superannuation fund, disability fund and tax deduction. In these five months the deceased was given a salary of 26,568.54 UAH and superannuation fund of 531.37 UAH, temporary disability 265.69 UAH, and tax 3865.72 UAH were deducted.
133. Average daily pay of the deceased is shown as 276.76 UAH.
134. However, this average daily pay is without deducting the three deductions noted above. Superannuation fund will be for the benefit of the employee finally and therefore cannot be deducted from the income. However, insurance contributions paid by the deceased to Social Insurance Funds and tax i.e. 265.69 + 3865.72 = 4,131.41 UAH once deducted from 26,568.54, the balance will be 22,437.13 UAH. Once this figure is divided by 150 days as against a figure of 96 days, the average daily pay of the deceased will be 149.58 UAH.
135. Ex. PW2/67 is translated by Mr. Andrew N. Garazhiev and is attested by Notary Public Mrs. Yuliya S. Kolyada and is also certified to be true signature without commitment to the veracity of the contents of the documents by the Second Secretary Embassy of India, Kyiv.
136. In Ex. PW2/69 it is shown that income tax 15% deducted was 6,821.07 UAH on the salary of the employees of JSC "MAVT". As per Ex. PW2/81 and Ex. PW2/83 a sum of 6,497.40 UAH and 323.67 UAH were deposited as tax which totals 6,821.07 UAH. The above would show that Ex. PW2/69 is a genuine reflection of MACT No. 85/11/10 Ms. Bershadska Tetyana & Ors. v. Mr. Surender Singh & Ors. Page No. 40 of 57 income of the employees of JSC "MAVT" that is why it is corroborated by Ex. PW2/81 and Ex. PW2/83 where income tax deposited by the company is matching with the income tax shown deducted in the salary payroll register for the month of January, 2008.
137. Therefore, income of the deceased from JSC "MAVT" was 149.58 UAH per day or 4487.40 UAH per month or 53,848.80 UAH per annum. Its Indian Rupee equivalent will be Rs. 3,58,649.16.
138. Third source of income claimed to be lost by the petitioners due to accidental death of the deceased is towards the loss of estate as it is the case of the petitioners that there is a company called OST West Commerce GmbH in which 95% of shares are with Petitioner No. 2. It is stated that the said company had two agreements with M/s. Electrosteel Castings Ltd., Ex. PW2/146 and Ex. PW2/147 worth $ 14,100,000 USD. Petitioners have stated that these agreements were terminated vide Termination Agreements Ex. PW2/148149. Petitioners contended that the agreements were executed on the basis of expertise of the deceased in mining and were terminated because of demise of the deceased as the other contracting party had no confidence in Ost West Commerce capability to perform the agreement. Relying on the evidence of PW3, petitioners claimed that they suffered a loss of $ 60,40,000 due to termination of these agreements.
139. Learned Senior Advocate appearing for the insurance company has argued that in the first instance there is no evidence on record to suggest that the deceased was any kind of MACT No. 85/11/10 Ms. Bershadska Tetyana & Ors. v. Mr. Surender Singh & Ors. Page No. 41 of 57 mining expert. Mining is a very specific profession/business and a person who is said to be such an expert must possess of such qualifications and/or experience in this regard. It is further argued that petitioners have relied on Ex. PW2/132 - Ex. PW2/133 which are Diploma awarded to the deceased for qualification as a Mechanised Infantry Officer and Armoured Vehicle Engineer and Ex. PW2/134 - Ex. PW2/135 are Diploma awarded to the deceased for Graduation from Military Academy. It is argued that neither of these diplomas speak of any mining or other expertise and hence this contentions of the petitioners is unsubstantiated and ought to be treated as unproved.
140. Further, it is also the contention of learned Senior Advocate of the Insurance Company that Ex. PW2/146 and Ex. PW2/153 nowhere state that they were entered into on account of the expertise of the deceased. Moreover, such agreements were terminated by specific Termination Agreements and neither of them state the cause of termination to be on account of the death of the deceased, rather each of such agreements carry the averment/clause that "parties agreed to terminate" which would mean under contract law, termination by mutual consent of both parties. The factum and reasons of termination having been recorded in such agreements, by invoking Section 59 read with Section 91, 92 and 94 of the Indian Evidence Act, 1872, oral evidence to the contrary is to be excluded. If the specific wording of the Termination Agreement speaks of no other reason or cause for termination, the petitioners cannot by the oral evidence of PW3 include such reason for termination.
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141. Therefore, it is contended by learned Senior Advocate of the insurance company that the petitioners cannot use any alleged loss of expertise to substantiate or infer that the agreements were terminated on account of the death of the deceased.
142. PW3 has deposed that the agreements were entered into with the expectation that the other company would perform its part of duty to their satisfaction. He deposed that the agreement was terminated as it was the discretion of the contracting parties. PW3 could not say anything about passing of any consideration from M/s. Electrosteel Castings Ltd. in favour of Ost West Commerce GmbH. Even profit margin quoted was by way of guesswork of PW3.
143. The petitioners have not brought on record any evidence to show that the deceased was so much indispensable that on his demise contract worth 1,41,00,000 USD was cancelled.
144. The petitioners have not shown that they had received any consideration from M/s. Electrosteel Castings Ltd. pursuant to the agreement.
145. The petitioners have not shown possibility of a profit out of this agreement. It is not uncommon that joint ventures in business between two contracting parties may result in losses.
146. Therefore, in the considered opinion of this Tribunal, there is no reliable evidence to show that agreements with M/s. Electrosteel Castings Ltd. worth $ 14,100,000 were executed only because of expertise of the deceased in mining operations. Such agreements do not depend on the expertise of a single MACT No. 85/11/10 Ms. Bershadska Tetyana & Ors. v. Mr. Surender Singh & Ors. Page No. 43 of 57 individual who is indispensable for carrying out such agreements. Neither of the agreements suggests that they were executed due to special expertise of the deceased nor that they were cancelled due to the demise of the deceased.
147. Therefore, no benefit can be given to the claimants in awarding compensation due to termination of agreements on the demise of the deceased.
148. Therefore, as income of the deceased as employee of JSC "MAVT" at the time of the accident was Rs. 3,58,649.16 per annum and earnings from Physical Person Entrepreneur were Rs. 66,41,011/, the aggregate income of the deceased at the time of accident was Rs. 69,99,660.16.
149. Learned Senior Advocate of the insurance company has relied on Dinesh Adhlak Vs. Pritam Singh: ILR (2010) V Delhi 463 to contend that where spouse is not financially dependent on the deceased he is entitled to loss of estate to an extent of one third of the income of the deceased in case of common establishment and one fourth in case of separate establishment.
150. Learned Senior Advocate of the insurance company has argued that the widow of the deceased has not suffered any loss of dependency as she was drawing a salary of 5,000/ UAH per annum from January to May, 2008. For this, reliance is placed on Ex. PW2/69. She was drawing a salary of 660 UAH in the month of December, 2007. Reliance is also placed on evidence of PW2 where he stated that "My mother has been working in different companies and lastly she was working in M/s. MAVT MACT No. 85/11/10 Ms. Bershadska Tetyana & Ors. v. Mr. Surender Singh & Ors. Page No. 44 of 57 also but she left this company two years ago". It is argued that the accident had taken place on 01.06.2008 but the widow of the deceased had continued to work and earn income well after such date till 2010 as according to evidence of PW2, she had left M/s. MAVT "only two years ago" i.e. 2010.
151. It is also argued by learned Senior Advocate for the insurance company that Petitioner No. 1 had shares in the company which would yield another source of income but due to family settlement it was decided that she will not receive such dividends. Therefore, it is contended that the loss of income on this account is not the death of the deceased but rather the conscious collective decision / agreement inter se the petitioners.
152. It is also argued on behalf of the insurance company that PW2 in his crossexamination has declined to come forward with the income earned by the petitioners before and after the accident and hence an adverse inference in terms of Section 114 of the Evidence Act ought to be drawn against them.
153. Therefore, it is the contention of the insurance company that Petitioner No. 1 was never dependent on the deceased during his life time and hence there is no question of loss of dependency after his death.
154. So far as Petitioner No. 2 is concerned, it is argued by learned Senior Advocate of the insurance company that he is 37 years old and a qualified MBA, Mechanical Engineer and a Law Graduate and capable of gainful employment. It is further argued that he has not produced his incometax documents which would have shown the nature, quantum and period of income earned by MACT No. 85/11/10 Ms. Bershadska Tetyana & Ors. v. Mr. Surender Singh & Ors. Page No. 45 of 57 him. PW2 was also living separately from his father and having an independent household. It is therefore argued that Petitioner No. 2 was not dependent on his father. It is argued on behalf of insurance company that Petitioner No. 2 is owner of company Ost West Commerce and continued to hold 95% shareholding and has inherited shareholding of his father in family company in MAVT.
155. Similarly, so far as Petitioner No. 3 is concerned, learned Senior Advocate of the insurance company has submitted that he is 27 years old major son of the deceased and there is a presumption that he was not financially dependent upon his father. It is also argued that Petitioner No. 3 is a Post Graduate in Business Management and has been and continues to be capable of independent gainful employment. Petitioner No. 3 was not living with his parents and was running a separate household which also shows that he was not financially dependent on the deceased. It is argued that Petitioner No. 3 is an Income Tax Payee but PW2 did not come forward with ITRs of Petitioner No. 3 before and after the accident for which adverse inference is to be drawn. It is also argued that Petitioner No. 3 was earning 660 UAH till July, 2007 and 2300 UAH from January, 2008.
156. Therefore, learned Senior Advocate representing the insurance company has argued that in absence of financial dependency petitioners are only entitled to loss of estate and alternatively where the deceased was a businessman what was to be assessed as loss of dependency was his contribution to run the family business. Reliance is placed on Rani Gupta v. United India Insurance (2009) 13 SCC 498.
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157. In the case of Dinesh Adhlak (supra), the Claims Tribunal had not granted any compensation for the loss of dependency to the claimant who was husband of the deceased for the reason that he was employed and was not financially dependent upon the deceased. However, while deciding the appeal, the Hon'ble High Court of Delhi had relied on a judgment of Karnataka High Court in the case of A. Manavalagan v. K. Krishnamurty & Ors. 2005 ACJ 1992 to hold that appellant is entitled to 1/3rd of the income of the deceased as loss of estate.
158. In the case of Rani Gupta (supra), the deceased was a businessman and 1/3rd deduction was made from his income towards personal use and consumption. In appeal, the Hon'ble High Court had increased loss of dependency but further apportioned 2/3rd as labour input i.e. personal input of the deceased in business and treated 1/3rd as yield from the capital asset. In further appeal before Hon'ble Supreme Court the compensation awarded was not interfered and it was held that where the deceased was a businessman, what was the actual loss of dependency to the family was his contribution to run the business because the assets of the business remain even after the death of the said businessman.
159. Therefore, the contention of the learned Senior Advocate of the insurance company was that from the total income of the deceased, only 1/3rd be granted as compensation towards loss of estate or in alternative 2/3rd should be deducted as labour input. Seen from whichever angle, the contention is that the compensation would be 1/3rd of the income of the deceased.
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160. On the other hand counsel for the petitioners has relied on Devi Dutt & Ors. v. Manish Sharma & Ors. a judgment of the Hon'ble High Court of Delhi dated 19.04.12 in MAC APP. No. 753/10 in support of his arguments for higher compensation.
161. In the case of Devi Dutt (supra), relying on National Insurance Co. Ltd. v. Meghji Narain Sortiya 2009 (12) SCC 796, it was held that where the sons of the deceased were grown up and were not financially dependent on the deceased and the daughter of the deceased was married, the loss of estate was to an extent of 50%.
162. Counsel for the petitioners has also relied on Sarayu v. Surendra Vithal Nazare 2012 ACJ 1230, a decision of High Court of Madras. In this case a sum of Rs. 5 lacs under the head loss of earning was found to be just and reasonable compensation payable to the claimant on the demise of the deceased as the deceased was a businessman and the business was carried on by his younger brother whom widow of the deceased had remarried.
163. Reliance is also placed on the judgment of Manjuri Bera v. Oriental Insurance Co. Ltd. AIR 2007 Supreme Court 1474 by counsel for claimants. In this case the claimant was a married daughter of the deceased and it was held that the quantum of compensation cannot be less than the liability referable to Section 140 of the Act. Therefore, it was held that even if there is no loss of dependency the claimant if he or she is a legal representative will be entitled to compensation, the quantum of which shall not be less than the liability flowing from Section 140 of the Act.
164. In another case decided by the Hon'ble High MACT No. 85/11/10 Ms. Bershadska Tetyana & Ors. v. Mr. Surender Singh & Ors. Page No. 48 of 57 Court of Delhi titled as Upendra Chugh v. Malkiyat Singh, 2004 (2) AD (Delhi) 597, in para 18 of this judgment it was held as under: "18. In so far as the multiplicand is concerned, there does not seem to be any standard laid down for calculating the personal expenses that might be incurred in cases where both the husband and wife are earning. If there is a single bread winner, the normal deduction for personal expenses is 1/3rd the income. In a case where both the husband and the wife are earning, I think it would be appropriate if a total of 25% of there combined income were deducted towards their personal expenses. This is because it is quite unlikely that each of them would be spending 1/3rd the income while the other spouse might be spending less than the standard deduction of 1/3rd; but in the absence of any principle having laid down by the Supreme Court or by any other court, I think it would not be irrational to assume that in a double income family, the personal expenses of both spouses would not exceed 25% of their combined income".
165. However, in the absence of any evidence of the income of the Petitioner No. 1, it will not be possible to deduct 25% as personal expenses of the deceased by combining the income of the deceased with the income of Petitioner No. 1.
166. Moreover, in the case of Meghji Narain Sortiya (supra), the contribution to the family or the saving by the deceased even assuming that the claimants were fully dependent, on the facts and circumstances of the case, 50% was deducted towards personal and living expenses of the deceased and not 1/3rd.
167. The above cited case decided by Hon'ble MACT No. 85/11/10 Ms. Bershadska Tetyana & Ors. v. Mr. Surender Singh & Ors. Page No. 49 of 57 Supreme Court was decided on the facts and circumstances of the case.
168. Therefore, relying on the case of Dinesh Adhlak (supra), the loss of dependency for the claimants will be the loss of estate to an extent of 1/3rd of the income of the deceased.
169. Therefore, as annual income of the deceased was Rs. 69,99,660.16, the loss of estate for the claimants shall be Rs. 23,33,220/ per annum.
170. As per the decision of Hon'ble Supreme Court in the case of Sarla Verma v. DTC (2009) 6 SCC 121, no compensation for future prospects is to be given when the age of the deceased was more than 50 years and he was a self employed person.
171. Therefore, no compensation for future prospects shall be given to the claimants as the deceased was more than 50 years of age his date of birth being 28.07.1951.
172. As per the judgment of Hon'ble Supreme Court in the case of Sarla Verma, the multiplier applicable shall be of 9.
173. However, the learned Senior Counsel for the insurance company relying on the judgment of the Hon'ble Supreme Court in the case of United India Insurance Co. v. Patricia Jean Mahajan (2002) 6 SCC 281, has argued that where higher incomes are involved, the multiplier applied by the Tribunal/ Court should be on the lower side and must be reduced as per the prevailing Indian conditions.
174. He has argued that in a case of the present nature also it would be appropriate if a lower multiplier is applied.
175. In the case of Patricia Jean Mahajan (Supra), it MACT No. 85/11/10 Ms. Bershadska Tetyana & Ors. v. Mr. Surender Singh & Ors. Page No. 50 of 57 was held that for the purposes of fair compensation, a lesser multiplier can be applied to a heavy amount of multiplicand.
176. Considering the fact that even in India with the economic liberalization and due to coming of MNCs in this country salary drawn by professionals has also soured high, it cannot be said that the multiplicand of Rs. 23,33,220/ is on higher side calling for application of lower multiplier than the one prescribed by the Hon'ble Supreme Court of India in the case of Sarla Verma (Supra).
177. Therefore, applying a multiplier of 9, the Loss of Dependency would be Rs. 23,33,220/ x 9 = Rs. 2,09,98,980/.
178. In the case of New India Assurance Co. Ltd. v. Bharat Singh, MAC APP. No. 137/12, dated 08.08.12, the Hon'ble High Court of Delhi has held that when full compensation is awarded towards loss of dependency, only a nominal sum is to be awarded towards loss of love and affection.
179. It was further held that the trend of the Hon'ble High Courts and the Hon'ble Supreme Court is to grant a sum of Rs. 25,000/ under the head of loss of love and affection.
180. Such a sum was granted by the Hon'ble Supreme Court in Sunil Sharma v. Bachittar Singh (2011) 11 SCC 425 and in Baby Radhika Gupta v. Oriental Insurance Co. Ltd. (2009) 17 SCC 627 towards love and affection.
181. Therefore, for Love and Affection, petitioners are given a compensation of Rs. 25,000/.
182. Besides this, Petitioner No. 1 widow is awarded a compensation of Rs. 10,000/ towards Loss of Consortium.
183. In absence of any evidence, for Cremation MACT No. 85/11/10 Ms. Bershadska Tetyana & Ors. v. Mr. Surender Singh & Ors. Page No. 51 of 57 Charges, they are given a compensation of Rs. 10,000/.
184. Next question is affect of travel policies.
185. It is the contention of learned Senior Advocate representing the insurance company that the compensation received from other insurance policies on account of death in a motor accident is to be deducted from the final compensation sought to be awarded. For this reliance is placed on Gunda Neubauer v. Bhanwar Singh 2010 (118) DRJ 164, Helen C. Rebello v. State of Maharashtra (1999) 1 SCC 90 and United India Insurance Co. v. Patricia Jean Mahajan (2002) 6 SCC 281.
186. It is the contention of learned Senior Advocate representing the insurance company that PW2 has admitted that the deceased had a travel policy from "Chartis Company" from which a sum of US $ 30,000 was received which was distributed between Petitioner No. 1 and Petitioner No. 3.
187. Hence, he submits that such amount of US $ 30,000 ought to be taken into consideration by this Tribunal as a deduction from any compensation found payable to the petitioners.
188. Further it is submitted by the learned Senior Advocate of the insurance company that on the directions of this Tribunal, the petitioners have placed on record two more travel accident insurance policies issued by AIG Ukraine Insurance Company specifically insuring "accidental death" worldwide which were not earlier brought on record and were not disclosed in evidence.
189. The details of these policies are as under: Policy No. Date of Issue Coverage Insured Value MACT No. 85/11/10 Ms. Bershadska Tetyana & Ors. v. Mr. Surender Singh & Ors. Page No. 52 of 57 Period for accidental death 02052071804 12.05.08 12.05.08 to 70,000 USD 12.05.09 02052033066 07.05.07 07.06.07 to 70,000 USD 07.06.08 Date of accident = 01.06.2008 i.e. covered by both policies to the extent of USD 140,000
190. Therefore, it is the submission of learned Senior Advocate representing the insurance company that the amount of US $ 1,70,000 be deducted from any sum of compensation found due and payable to the claimants.
191. In the case of Helen C. Rebello (supra), the question before the Hon'ble Supreme Court was whether the life insurance money of the deceased is to be deducted from the claimant's compensation receivable under the Motor Vehicles Act, 1939. In the case of Patricia Jean Mahajan (supra), the question before the Hon'ble Supreme Court was whether deductions on account of benefits of Social Security System/LIC were to be deducted from the compensation payable to the claimants in a claim petition under Section 166 of the Motor Vehicles Act.
192. In the case of Hellen C. Rebello (Supra) following para was quoted from the case of Parry v. Cleaver (1969) 1 All England Report 555: "As regards monies coming to the plaintiff under a contract of insurance, I think that the real and substantial reason for disregarding them is that the plaintiff has bought them and that it would be unjust and unreasonable to hold that the money which he prudently spent on premiums MACT No. 85/11/10 Ms. Bershadska Tetyana & Ors. v. Mr. Surender Singh & Ors. Page No. 53 of 57 and the benefit from it should enure to the benefit of the tortfeasor. Here again I think that the explanation that this is too remote is artificial and unreal. Why should the plaintiff be left worse of than if he had never insured? In that case he would have got the benefit of the premium money; if he had not spent it he would have had it in his possession at the time of the accident grossed up at compound interest."
193. Further para 20 of the judgment reads as under: "20. Many invest through this policy for a variety of reasons, maybe, to secure the sum for himself as forced saving, maybe, as in India, for deduction towards his income tax liability, to secure loan by himself in case needed on a meager interest for building his residence or to secure a sum in case of happening of the said contingencies etc. He enters into this contract with an open eye, as an act of wisdom, of course, not towards gain to the tortfeasor. The English Court expressing concern on this aspect in the aforesaid decision recorded: "Why should the plaintiff be left worse off than if he had never insured." Thus, the interpretation of deduction of life insurance would result into gain to the wrongdoer in proportion to the higher scale of premium paid by the insured for no contribution of his and loss to the claimant in proportion to the higher scale of premium paid, as he would have received the compensation amount without payment of any premium."
194. It is further held in the case of Helen C. Rebello (Supra) that any amount received or receivable not only on account of the accidental death but which would have come to the claimant even otherwise could not be construed to be the "Pecuniary MACT No. 85/11/10 Ms. Bershadska Tetyana & Ors. v. Mr. Surender Singh & Ors. Page No. 54 of 57 Advantage" liable for deduction. It is further held in the said judgment that an amount of loss and gain of one contract cannot be made applicable to the loss and gain of another contract and an amount receivable under a statute cannot have any correlation with an amount earned by an individual. It is further held in Para 35 as under: "35. The insured (deceased) contributes his own money for which he receives the amount which has no correlation to the compensation computed as against the tortfeasor for his negligence on account of the accident. As aforesaid, the amount receivable as compensation under the Act is on account of the injury or death without making any contribution towards it, then how can the fruits of an amount received through contributions of the insured be deducted out of the amount receivable under the Motor Vehicles Act. The amount under this Act he receives without any contribution. As we have said, the compensation payable under the Motor Vehicles Act is statutory while the amount receivable under the life insurance policy is contractual."
195. Counsel for claimants has submitted that "accidental" means happening by chance or unexpectedly taking place, not according to the usual course of things; unintentional, something unforeseen and unexpected and casual. An effect is said to be accidental when the act by which it is caused is not done with intention of causing it, and when its occurrence as a consequence of such act is not so probable that a person of ordinary prudence ought, under the circumstances in which it is done, to take reasonable precautions against it. It is happening by or pertaining MACT No. 85/11/10 Ms. Bershadska Tetyana & Ors. v. Mr. Surender Singh & Ors. Page No. 55 of 57 to chance.
196. Counsel for claimants further argued that whereas compensation in this claim petition is to be given to the LRs of the deceased as a result of Road Traffic Accident only and LRs of the deceased would have got benefit of insurance policies concerned even if there was accidental death by aeroplane, train or for any other unusual course of things. He submits that only that compensation can be deducted which is payable because of RTA as compensation in this petition is given as a result of RTA and not for any other accidental death.
197. In the light of judgment of Hon'ble Supreme Court in the case of Helen C. Rebello (Supra) as well as in the case of Patrecia Jean Mahajan (Supra) it is held that benefit of insurance policies shall not be deducted from the compensation payable to the LRs of the deceased as this compensation is a statutory compensation payable only in the case of a Road Traffic Accident and on the other hand monitory benefit under insurance policies would have been given to the LRs of the deceased for any other accidental injury including Road Traffic Accident and the benefit of contract of the deceased with the insurance company cannot be for the benefit of the tortfeasor whose negligent act resulted in the death of the deceased.
198. Resultantly, total compensation payable to the claimants would be Rs. 2,10,43,980/ which shall be payable with interest @ 7.5% from the date of filing of this claim petition which is 31.05.10 till its realisation.
199. Insurance company has not proved any defence.
MACT No. 85/11/10 Ms. Bershadska Tetyana & Ors. v. Mr. Surender Singh & Ors. Page No. 56 of 57 Therefore, compensation shall be payable by the insurance company within 30 days from today.
200. Petitioners are educated persons and there is no apprehension of their compensation being exploited or dissipated. Therefore, the entire compensation be released subject to filing of requisite documents by the petitioners.
201. However, the compensation shall be apportioned in the ratio of 50% in favour of Petitioner No. 1, Widow of the deceased and 25% each in favour of Petitioner No. 2 and 3, the two sons of the deceased.
202. Intimation of deposit shall be sent by registered post to the claimants as well as counsels for claimants whose address for this purpose is as under: Mr. J.S. Yadav, Advocate Chamber No. 250, Patiala House Court New Delhi01
203. Nazir of this court will also send intimation of deposit of compensation to the claimants as well as to their counsel.
204. Copy of order be given to all the parties and file be consigned to Record Room.
Announced in the Open Court On the 21st day of March, 2013 (ARUN BHARDWAJ) PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNALII DWARKA COURTS, NEW DELHI.
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