Delhi District Court
Sh. Mahipal Singh vs Bagichha Singh on 7 April, 2011
IN THE COURT OF SH. DINESH BHATT, PO,MACT(NORTH)/
TIS HAZARI COURTS, DELHI
FATAL CASE:
Suit No.:503/10
Unique ID no.:02401C0567112010
1. Sh. Mahipal Singh
S/o Sh. Mohan Lal
2. Smt. Lalwati
W/o Sh. Mahipal Singh
3. Miss Rajni
D/o Sh. Mahipal Singh
4. Satish Kumar
S/o Sh. Mahipal Singh
All are R/o: H. No. 1151, DBlock,
Jahangir Puri, Delhi ..........Petitioners
Versus
1. Bagichha Singh
S/o Sh. Lakhvinder Singh
R/o Vill. Banka, Post Pinkhi Vanda,
P.S. Pinkhi Vanda Tehpatti,
Distt. Taran Taran, Punjab
2. Rajeev Mohan Sharma
Suit no.:503/10 Page1/11
S/o Sh. Rameshwar Prasad
R/o Badshahpur, Shahpur,
P.S. Siroli, Loni Distt. Ghaziabad,
U.P.
M/s Sai Cargo Movers r/o Chirodi
Road Krishna Vihar, Loni Ghaziabad,
U.P.
3. Shri Ram Gen. Insurance Company Ltd.
Ghaziabad, U.P. ..........Respondents
Date of Institution : 08/12/2010
Date on which order was reserved : 04/04/2011
Date of Decision : 07/04/2011
APPLICATION U/s 166 & 140 OF MOTOR
VEHICLES ACT 1988 FOR GRANT OF
COMPENSATION
JUDGMENT/AWARD:
1. This is a case for claim of compensation on account of death of Naresh Kumar in a road traffic accident dt. 13/10/10 caused within jurisdiction of PS Burari, Delhi.
2. Petitioners' case is that on 13/10/10 deceased was travelling on his motorcycle and going towards Mandoli through Outer Ring Road, Delhi. As soon as deceased reached at about 1 km. from Burari Suit no.:503/10 Page2/11 Chowk Wazirabad on the Outer ring Road, respondent no. 1 driving his Truck no. HR 55K 7663 (offending vehicle) in rash and negligent manner hit the deceased from behind causing grievous injuries. Public person, namely, Hari Chand had made a call to the PCR Van whereby Police came on spot and shifted the deceased to LNJP Hospital where MLC was prepared and FIR was lodged. Deceased was later shifted to NKS Hospital where he succumbed to his injuries on the intervening night of 18/10/1019/10/10 therefore, postmortem was conducted.
3. Respondent no. 1 is the driver, respondent no. 2 the owner and respondent no. 3 the insurer of the offending vehicle.
4. Respondent no. 1 & 2 have not filed any reply.
5. Respondent no. 3 has admitted the insurance policy but stated that its liability was subject to terms and conditions of the policy.
6. Detailed Accident Report alongwith copy of FIR, site plan, MLC, postmortem report, death certificate, high school certificate of deceased, affidavit in regard to L.Rs and age of L.Rs of the deceased, driving license, RC, permit, mechanical inspection report, photocopy of photograph of offending vehicle, seizure memo, certificate from the employer of the deceased in regard to salary of the deceased, insurance certificate, and copy of statement of Hari Chand recorded U/s 161 Cr. PC has been filed on record.
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7. From the pleadings of the parties following issues were framed for consideration:
1. Whether the deceased Naresh Kumar died due to the injuries received in accident dt.
18/10/10 due to rash and negligent driving of the offending vehicle bearing no. HR 55K 7663 driven by respondent no. 1 as alleged?
2. What amount of compensation the petitioners are entitled to and from whom?
3. Relief.
Issue no. 1 is reframed as correct date of accident is 13/10/10 instead of 18/10/10 as under:
1. Whether the deceased Naresh Kumar died due to the injuries received in accident dt.
13/10/10 due to rash and negligent driving of the offending vehicle bearing no. HR 55K 7663 driven by respondent no. 1 as alleged?
Issue wise findings:
8. Issue no. 1: PW1 has reiterated the stand of the petition. She has however, stated that she was not an eye witness. Suit no.:503/10 Page4/11
Respondent no. 1 & 2 have neither filed reply nor cross examined petitioner's witness or led any evidence.
As per FIR a case U/s 279/337 IPC had been registered against driver of the offending vehicle. As per mechanical inspection report, offending vehicle had fresh damaged parts on its front while the motorcycle driven by deceased was damaged from its rear side. Photocopy of photograph of offending vehicle after the accident in question are also available on record. As per copy of statement of eye witness Hari Chand recorded U/s 161 Cr. PC accident in question was caused by the driver of the offending vehicle who had hit the motorcycle driven by deceased from behind. As per MLC deceased had been brought to the hospital with injuries suffered in the alleged road traffic accident. As per postmortem report, deceased had died due to antemortem injuries caused by blunt force impact to the head. As per death summary of NKS Hospital deceased had been brought to the said hospital from LNJP Hospital on the ground that there was no bed in the ICU of the said hospital and that during course of treatment deceased had died in the hospital on 19/10/10.
In view of the unrebutted testimony of the petitioners and documents available on record, it is prima facie proved that deceased died due to injuries caused in accident by rash and negligent driving of respondent no. 1.
Accordingly, issue no. 1 is decided in favour of the Suit no.:503/10 Page5/11 petitioners.
9. Issue no. 2: In view of the findings of issue no. 1, petitioners are entitled to compensation.
Deceased was admitted in the hospital and is stated to have incurred expenditure of more than Rs. 2 lakhs on treatment before his death. Deceased was stated to be 21 years of age, unmarried, earning Rs. 18,000/ p.m. as Xray technician and survived by his parents, brother and sister. Deceased as per his 10th certificate was born on 01/05/89. He was intermediate pass. Deceased is stated to be survived by his mother, father, brother and sister. There is no proof in regard to dependency of father, brother or sister on the deceased. Accordingly, mother is the only dependent. There is no document in regard to age of the mother. As per affidavit available with DAR, petitioner no. 2 mother of the deceased was 52 years of age on the date of accident in question and the same is taken as her probable age.
As per certificate Ex. PW1/A filed alongwith DAR deceased was earning Rs. 15,000/ p.m. as an Xray technician and was also paid Rs. 3,000/ p.m. as stipend for the last 04 months. The said certificate of salary does not bear date of issue.
As per the stipend certificate dt. 30/10/10 deceased was being paid Rs. 3,000/ p.m. for working as an Xray technician apprentice for last 04 months. Combined reading of these two Suit no.:503/10 Page6/11 documents therefore, suggests that deceased was undergoing Xray technician apprentice course on the date of accident in question. As far as the salary certificate is concerned the same has also not been proved by supporting evidence and it is also not clear as to from which period the deceased was being paid the said salary. There is also no document/proof in regard to the specialized qualification of the deceased for working as an Xray technician. Accordingly, the minimum wages of Rs. 6,448/ p.m. applicable to a matriculate/ skilled worker are taken as the income of the deceased. Hon'ble High Court of Delhi in "Kiran Devi Vs. Surjeet Yadav" II (2010) ACC 289 held that court can take judicial notice of increase of minimum wages getting doubled over the period of 10 years and increase in minimum wages was not akin to future prospects. The Hon'ble High Court took the average of the minimum wages and its double to compute the loss of dependency. Therefore, in the present case 50% is to be added towards consideration of multiplicant. The relevant multiplier as per age of the mother would be 11. Deceased was unmarried therefore, 50% of the income is to be deducted as personal expenses of the deceased.
Deceased was admitted in NKS Hospital on 14/10/10 and discharged on 19/10/10 on his death and had incurred expenses of Rs. 91,440/ in the hospital. Bills in regard to the said medical expenses have been filed. Accordingly, the same are allowed. Suit no.:503/10 Page7/11
Petitioners are therefore, entitled to compensation of (Rs. 6,448/ + 50% of Rs. 6,448/) X 12 X 11 X 1/2 = Rs. 6,38,352/ + Rs. 10,000/ on account of loss of consortium + Rs. 10,000/ on account of loss of estate + Rs. 5,000/ as funeral expenses + Rs. 91,440/ on account of medical expenses incurred before the death of injured. Total Rs. 7,54,792/ (Rupees Seven Lakh Fifty Four Thousand Seven Hundred and Ninety Two Only).
10. LIABILITY: There is no dispute in regard to driving license and violation of terms and conditions of insurance policy. Accordingly, respondent no. 1 & 2 are jointly and severally liable to pay compensation. Respondent no. 3 to indemnify the claim.
11. Issue no. 3 (RELIEF): While granting relief to the petitioners, interest @ 7.5 % p.a., from the date of petition till realization is also allowed on the award.
12. In view of the above, the following award is passed: AWARD : The petition is allowed. Respondents 1 & 2 being the driver and owner are jointly and severally liable to pay the compensation.
However, respondent no. 3 being the insurance company Suit no.:503/10 Page8/11 shall pay the compensation of Rs. 7,54,792/ (Rupees Seven Lakh Fifty Four Thousand Seven Hundred and Ninety Two Only) less interim award, if any, within one month along with the interest @ 7.5 % p.a., from the date of petition till realization (excepting for the periods not specifically allowed) to the petitioners. In case of default interest @ 9% p.a. will be payable on the award amount from the date of petition.
Compensation amount be deposited within one month from today. Out of the total compensation, petitioner no. 2 is entitled to 70% share and petitioner nos. 1, 3 & 4 are entitled to equal share of the remaining amount.
80% share of petitioner no. 2 be kept in FDR for a period of 03 years, 05 years, 07 years & 09 years in equal proportions with liberty to draw monthly interests. The entire share of petitioner no. 3 be kept in FDR for a period of 02 years. The entire share of petitioner nos. 1 & 4 and remaining share of petitioner no. 2 be released on deposit.
13. Manager SBI, Tis Hazari, shall open a Saving Account in the name of the petitioners and release/convert the award amount into FDRs as directed.
14. The monthly interest on all the aforementioned deposit of petitioner no. 2 shall be credited to the said account by way of Suit no.:503/10 Page9/11 automatic credit into the Saving Account.
15. The petitioners shall be at liberty to withdraw from the aforesaid accounts after due verification by the bankers, who shall issue photo identity card to the claimants to facilitate the establishment of identity and withdrawal.
16. The original FDR shall be retained by the Bank in safe custody while original passbook shall be given to the claimant/ petitioner alongwith the photocopy of the FDR.
17. The original FDR shall be handed over to the claimant at the end of the fixed deposit period.
No loan, advance or withdrawal shall be allowed on the said FDR without the permission of the Court.
18. On the request of the claimant, the bank shall transfer the Saving Account to any other branch of the SBI in Delhi according to the convenience of the claimant.
19. Accordingly, it is directed that respondent no. 3 shall deposit the amount of compensation, awarded to the petitioner, by way of separate crossed cheques, in the name of the petitioners with the SBI, Tis Hazari, as directed above, within 30 days from today. A copy of the award be sent to Manager, SBI, Tis Hazari for compliance.
20. No orders as to costs A copy of the award be supplied to the parties, free of cost, File be consigned to Record Room. Suit no.:503/10 Page10/11
21. A compliance report shall be filed by the Insurance Company about the deposit of the award amount, as per directions alongwith a copy of the notice to the claimant and the counsel for claimant, intimating about the deposit of the cheque by 07/05/11.
22. Manager, SBI, shall file a compliance report about opening of the saving bank account in the name of the claimant and preparation of FDRs by 07/05/11.
23. Ahlmad is directed to prepare a separate miscellaneous file containing a copy of the petition, memo of parties, copy of award and last proceeding sheet and put up the same alongwith the compliance report aforementioned on 07/05/11.
Announced in the open court (DINESH BHATT)
on 07/04/2011 PO, MACT/Delhi
07/04/2011
Suit no.:503/10 Page11/11