Delhi District Court
Smt. Sunita Gupta vs Shri Rajat Batra on 10 February, 2015
IN THE COURT OF MS. GEETANJLI GOEL, PO: MOTOR ACCIDENT
CLAIMS TRIBUNAL2, PATIALA HOUSE COURTS, NEW DELHI
Suit No. 281/14
Date of Institution: 16.11.2013
IN THE MATTER OF:
1. Smt. Sunita Gupta
W/o Late Shri Parvesh Kumar Gupta
2. Shri Rahul Gupta
S/o Late Shri Parvesh Kumar Gupta
Both R/o A15/18
Vasant Vihar
New Delhi 110057. ...Petitioners
Versus
1. Shri Rajat Batra
S/o Shri O.P. Batra
R/o J161 B, Rajouri Garden
New Delhi.
Present Address:
V260, Rajouri Garden
New Delhi110027.
2. M/s Moti Ram Jagdish Lal
2325/5, First Floor
Bahadurgarh Road
Teliwara Sadar Bazar
Suit No. 281/14
Sunita Gupta & Ors. Vs Rajat Batra & Ors. Page 1 of 43
Delhi110006.
3. Bajaj Allianz General Insurance Co. Ltd.
GE Plaza, Airport Road
Yerawada, Pune - 411006. ...Respondents
Final Arguments heard : 17.01.2015 Award reserved for : 10.02.2015 Date of Award : 10.02.2015 AWARD
1. Vide this judgmentcumaward, I proceed to decide the petition filed u/s 166 and 140 of Motor Vehicle Act, 1988, as amended uptodate (hereinafter referred to as the Act) for grant of compensation in a road accident.
2. It is the case of the petitioners that on 12.08.2013 at about 07:45 PM, the deceased Shri Parvesh Kumar Gupta was crossing the road opposite Hyatt Hotel, Bhikaji Cama Place, New Delhi when the offending vehicle No.DL9CAG0306, Swift Dzire VXI driven by the respondent No.1 hit the deceased due to the rash and negligent driving of the driver of the offending vehicle and the deceased died because he received fatal injuries in the accident. It is averred that as per the information the deceased was taken to Safdarjung Hospital, New Delhi, vide MLC No.160757/13 dated 12.08.2013 and he succumbed to severe injuries. The deceased died on the same day due to shock and hemorrhage due to craniocerebral damage consequent upon blunt force injury/ surface impact to head. On 13.08.2013, the post mortem was Suit No. 281/14 Sunita Gupta & Ors. Vs Rajat Batra & Ors. Page 2 of 43 conducted and the dead body was handed over to the relatives of the deceased. It is stated that in respect of the accident FIR No.278/13, U/s 279/304A IPC was registered at PS R.K. Puram. It is averred that the offending vehicle was owned by the respondent No.2 and insured with the respondent No.3.
3. It is averred that the deceased was serving as Photographer in a government organization i.e. Reprography Unit at Nehru Memorial Museum & Library, Teen Murti House, New Delhi and was getting a sum of Rs.15,000/ as pension. It is averred that the deceased was healthy and active and was not suffering from any kind of ailment and he was looking after his family members. The deceased was 62 years old at the time of accident and had retired from Government service in the year 2010. It is averred that whatever had been earned by the deceased was always contributed for the welfare of the family and his children. Therefore, the loss caused to the family of the deceased could not be ascertained in terms of money as the amount of compensation could neither bring back the deceased to the LRs/dependents nor the same dignity and comfort that they were living in during the lifetime of the deceased. It is averred that the petitioners were at the stage of their life when they needed most and had lost their husband/father. It is averred that the love and care the deceased had for his wife and two children i.e. son petitioner No.2 and daughter (married) could not be measured in terms of money. It is averred that the deceased was contemplating to set up his own business of Suit No. 281/14 Sunita Gupta & Ors. Vs Rajat Batra & Ors. Page 3 of 43 photography institute based upon his vast experience but the untimely death of the deceased had frustrated the same and an amount of Rs.20,00,000/ was claimed on that account. It is averred that the petitioner No.1 was entirely dependent for emotional attachment for love and affection on the deceased and the untimely death of the deceased had caused great mental agony and pain to the petitioners and other family members and Rs.70,00,000/ was claimed towards the same. An amount of Rs.25,00,000/ was also claimed towards harassment caused on account of the accident to the petitioners and other family members of the family. It is stated that the petitioner No.2 is an unmarried son of the deceased and of marriageable age and untimely death of the deceased had caused a great loss to the family of the deceased and Rs. 35,00,000/ were claimed on the said account. It is averred that as per the police report the accident had occurred due to gross negligence and rash driving of the driver of the offending vehicle/car i.e. the respondent No.1 and if the respondent No.1 had been vigilant and cautious while driving the offending vehicle, the accident could have been averted. It is averred that the respondents No.2 and 3 are also liable to pay compensation being the owner and insurer of the offending vehicle respectively, vide Policy No.OG149991190100004160 for the period 04.07.2013 to 03.07.2014. Therefore, all the respondents were jointly and severally liable to pay compensation to the petitioners. It is prayed that an amount of Rs.1.5 crores be awarded as compensation in favour of the petitioners and against the respondents.
Suit No. 281/14 Sunita Gupta & Ors. Vs Rajat Batra & Ors. Page 4 of 43
4. Reply was filed on behalf of the respondents No.1 and 2 averring that the vehicle in question bearing registration No.DL9CAG0306 (Swift Dzire VXI BS4 M) was duly registered in the name of M/s Moti Ram Jagdish Lal which is a partnership firm and Shri O.P. Batra S/o Late Shri Jagdish Lal Batra is a partner of M/s Moti Ram Jagdish Lal and is representing the owner in the case. It is averred that the vehicle is duly insured vide Package Policy No.OG149991180100004160 issued by M/s Bajaj Allianz General Insurance Company for a period of one year from 04.07.2013 to 03.07.2014. It is averred that since the vehicle was insured at the time of the alleged accident, as such the liability if any, towards the petitioners was that of the insurance company only. It is averred that the respondent No.1 was driving the offending vehicle within permissible speed limit at the time of the alleged accident and the alleged accident did not occur due to the negligence of the driver and it was the deceased who was in between a busy main road without making use of any pedestrian crossing, subway or a foot over bridge. It is averred that there was no road crossing at the spot and the same was also corroborated from the site plan prepared by the IO. It is averred that the driver of the vehicle was not driving the vehicle rashly and negligently and was not over speeding the same and it was within the permissible speed limit (3540 kmph). It is averred that the vehicle i.e. WagonR moving in front of the vehicle made an immediate turn towards the right side of the road as the deceased all of a sudden came in front of the WagonR. It was around 7.40 p.m. on 12.08.2013 and due to many boards placed by the Delhi Metro Rail Corporation on that part of the road Suit No. 281/14 Sunita Gupta & Ors. Vs Rajat Batra & Ors. Page 5 of 43 where the alleged accident took place, no vehicle passing through the said place could cross the speed of more than 3540 kmph. Even the visibility ahead of the moving vehicle was not proper. It is averred that the driver tried his best to avert the accident however, the deceased got hit with the vehicle in question and unfortunately sustained fatal injuries. It is averred that the driver on humanitarian ground immediately took the deceased to Safdarjung Hospital for first aid and thereafter the deceased was under the supervision of the doctors. It is averred that the driver has been falsely implicated in FIR No. 278/13 under Sections 279/304A IPC registered with PS R.K. Puram.
5. Written statement on behalf of the respondent No.3 was filed taking the preliminary objections that the amount of compensation as claimed by the petitioners is very much excessive, exorbitant and without any basis. It is averred that no intimation as required under Section 134 C of the Motor Vehicle Act was ever given to the respondent No.3 of the alleged accident involving vehicle No.DL9CAG0306. It is averred that the petitioners are not the legal heirs of the deceased and are not dependent upon the deceased and as such they are not entitled to any compensation. The averments made in the claim petition were denied. It is denied that the accident had occurred in the manner as alleged. It is stated that the vehicle No.DL9CAG0306 was insured with the respondent No.3 vide policy No. OG149991180100004160 for the period 04.07.2013 to 03.07.2014. It is denied that the deceased was hit by the offending vehicle in the manner as alleged and it was the deceased who failed Suit No. 281/14 Sunita Gupta & Ors. Vs Rajat Batra & Ors. Page 6 of 43 to maintain proper look out and contributed to the accident. It is averred that the petitioners were not dependent upon the deceased. It is denied that the accident had occurred due to gross negligence and rash driving of the driver of the vehicle and it is averred that the deceased himself was negligent.
6. Initially Detailed Accident Report was filed by the IO on 10.9.2013 and thereafter the claim petition was filed on 16.11.2013. From the pleadings of the parties, the following issues were framed vide order dated 15.02.2014:
1. Whether the deceased sustained fatal injuries in the accident which occurred on 12.08.2013 at about 07:45 P.M at Ring Road Opposite Hyatt Hotel, Bhikaji Cama Place, New Delhi, caused by rash and negligent driving of vehicle No.DL9CAG0306 driven by respondent no.1 and owned by respondent no.2 and insured with respondent no.3? OPP
2. Whether the LRs of the deceased are entitled for compensation? If so, to what amount and from whom?
3.Relief.
7. On behalf of the petitioners Ms. Deepti Gupta appeared in the witness box as PW1 and led her evidence by way of affidavit which is Ex PW1/A reiterating the averments made in the claim petition. She deposed that she is the daughter of the deceased Parvesh Kumar Gupta who died on 12.08.2013 as a result of the fatal accident due to rash and negligent driving of the offending vehicle bearing No.DL9CAG0306 driven by the respondent No.1 Suit No. 281/14 Sunita Gupta & Ors. Vs Rajat Batra & Ors. Page 7 of 43 Shri Rajat Batra. Copy of her driving license is Ex.PW1/1. She deposed that the petitioner No.1 is her mother and the petitioner No.2 is her brother and the deceased was her father. The identity proofs of the petitioners No.1 and 2 are Ex.PW1/2 and PW1/3. She stated that on 12.08.2013 at about 09:00 PM, she had called her father on his mobile which was answered by some police official who told her that her father had met with an accident. She was informed that the accident occurred at about 07:45 PM at ring road, opposite Hyatt Hotel, Bhikaji Cama Place, Delhi and after the accident her father was taken to Safdarjung hospital for medical aid but he succumbed to the injuries sustained in the accident. Thereafter, on 13.08.2013 post mortem of the deceased's body was conducted, vide MLC No.160757/13 dated 12.08.2013. Copy of the post mortem report is Ex.PW1/4. Copy of FIR and documents regarding the offence are Ex.PW1/5 (colly). She stated that her father was healthy and active and was not suffering from any kind of ailment. Copy of his identity card is Ex.PW1/6. She stated that her father was drawing pension of Rs.19,846/ approximately and letter dated 20.03.2014 issued by NMML is Mark PW1/7. She stated that her father was a Graduate and after retirement he was employed with M/s R.K. Engineers having office at 135, Khanna Market, Lodhi Road, New Delhi and was drawing Rs.15,000/ per month from the said firm but his untimely death had caused financial loss to the petitioners. Copy of graduation certificate of the deceased and copy of certificate issued by M/s R.K. Engineers is Ex.PW1/8 (colly). She stated that her father was also contemplating to set up his own business of photography Suit No. 281/14 Sunita Gupta & Ors. Vs Rajat Batra & Ors. Page 8 of 43 institute based upon his vast experience but his untimely death frustrated the same resulting in huge loss. She stated that the dream of her mother to get the petitioner No.2 Rahul Gupta married was shattered by the untimely death of her father. DL of the respondent No.1 is Ex.PW1/9 and copy of the insurance policy of the offending vehicle is Ex.PW1/10.
8. The petitioner No.2 Shri Rahul Gupta appeared in the witness box as PW2 and led his evidence by way of affidavit which is Ex.PW2/A. He deposed that he is the son of the deceased Parvesh Kumar Gupta who died on 12.08.2013 as a result of fatal accident. He deposed to the same effect as PW1. He deposed that on 12.08.2013 at about 09:00 PM, he received a call from his sister Deepti Gupta who told him that their father had met with an accident. He was informed that his father was taken to Safdarjung hospital for the medical aid but unfortunately he succumbed to the injuries sustained in the accident. Thereafter, on 13.08.2013 post mortem of the deceased's body was conducted in the hospital and after completion of the necessary formalities, the body of his father was handed over to him. Copy of DAR is Ex.PW2/1 (colly). Letter issued by NMML regarding the retirement of his father dated 20.3.2014 is Ex.PW2/1a. RC of the offending vehicle of the respondent No.1 is Ex.PW2/2.
9. Shri R.K. Sethi, Partner of R.K. Engineers was produced in the witness box as PW3 who deposed that he was a partner of R.K. Engineers. His Suit No. 281/14 Sunita Gupta & Ors. Vs Rajat Batra & Ors. Page 9 of 43 authority letter is Ex.PW3/A. Copy of partnership deed is Mark A. He had brought the record in respect of the deceased i.e. appointment letter Mark B, the bio data form which was filled up after joining the company by the deceased along with his documents Ex.PW3/1, copy of salary slip of the deceased for the months of April 2013 to August 2013 Ex.PW3/2 and the salary register on the basis of which the salary slip was got prepared Ex.PW3/3. He stated that in August, 2013 only a salary of 12 days was paid to the deceased's family. PE was closed on 5.11.2014.
10. The respondent No.1 Shri Rajat Batra appeared in the witness box as R1W1 and led his evidence by way of affidavit which is Ex.R1W1/A and he relied upon the documents Ex.PW1/5, Ex.PW1/9 and Ex.PW1/10. He deposed that he was driving the vehicle in question at the time of the accident. He further deposed that he was holding a valid driving license bearing No.P04102004410995. He stated that the vehicle bearing No.DL9CAG0306 was duly registered in the name of M/s Moti Ram Jagdish Lal which was a partnership firm of which Shri O.P. Batra was a partner and was representing the owner in the case. He stated that the vehicle in question at the time of the accident was duly insured vide Policy No.OG149991180100004160 issued by M/s Bajaj Allianz General Insurance Company from 04.07.2013 to 03.07.2014, hence the liability, if any, towards the petitioners was that of the insurance company only. He stated that on 12.08.2013, he was traveling from his residence to Hauz Khas and was driving the vehicle in question within Suit No. 281/14 Sunita Gupta & Ors. Vs Rajat Batra & Ors. Page 10 of 43 permissible speed limit at the time of the alleged accident. He stated that the alleged accident did not occur due to his negligence and it was the deceased who was in between a busy main road (Ring Road) opposite Hyatt Hotel, Bhikaji Cama Place without making use of any pedestrian crossing, subway or foot over bridge. Moreover there was no road crossing at the spot and the same was also corroborated from the site plan prepared by the IO. He stated that the contents of FIR No.278/13 at PS R.K. Puram, under sections 279/304A IPC were false and he had been falsely implicated in the said FIR. He stated that the vehicle in question was not being driven rashly and negligently nor was he was overspeeding the same and it was within permissible speed limit (3540 kmph). He stated that on the busy road on the day of the accident, another vehicle i.e. WagonR moving in front of the vehicle in question made an immediate turn towards the right side of the road since the deceased all of a sudden came in front of the said WagonR. He stated that due to the said sharp turn there was less reaction time and he tried his best to avert the accident with both the deceased and the WagonR car but it was on account of the negligence of the deceased person who came all of a sudden in between a busy road where there was no provision of zebra crossing or any signal for pedestrian crossing and got hit with the vehicle in question and unfortunately sustained fatal injuries. He stated that it was around 7.40 p.m. on 12.08.2013 and due to many boards placed by the Delhi Metro Rail Corporation and the evening rush hours on that part of the road where the alleged accident took place, no vehicle passing through the said Suit No. 281/14 Sunita Gupta & Ors. Vs Rajat Batra & Ors. Page 11 of 43 place could cross the speed of more than 3540 kmph. Even the visibility was not proper. He stated that the said part of the road was not meant for being crossed by pedestrians. He stated that he immediately took the deceased to Safdarjung Hospital for First Aid and thereafter the deceased was under the supervision of the doctors. He stated that there was no negligence on his part. RE was closed on 20.12.2014.
11. I have heard the Learned Counsel for the petitioners as well as the Learned Counsels for the respondents and perused the record. The petitioners were also examined on 17.1.2015 in terms of the judgment of the Hon'ble High Court on 11.1.2013 in MACA No.792/2006 titled Oriental Insurance Co. Ltd. v. Ranjit Pandey and Ors.
12. My findings on the specific issues are as under:
Issue No. 1
13. As the petition has been filed U/s 166 M.V Act it was incumbent upon the petitioners to prove that the deceased sustained injuries in an accident caused due to the rash and negligent driving by the driver of the offending vehicle. To determine the negligence of the driver of the offending vehicle it has been held in National Insurance Company Ltd. vs Pushpa Rana & Another 2009 Accident Claims Journal 287 as follows:
Suit No. 281/14 Sunita Gupta & Ors. Vs Rajat Batra & Ors. Page 12 of 43
"The last contention of the appellant insurance company is that the respondents/claimants should have proved negligence on the part of the driver and in this regard the counsel has placed reliance on the judgment of the Hon'ble Apex Court in Oriental Insurance Company Ltd. V. Meena Variyal (supra). On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced: (i) certified copy of the criminal record of criminal case in FIR No.955 of 2004, pertaining to involvement of offending vehicle (ii) criminal record showing completion of investigation of police and issue of charge sheet under sections 279/304A, Indian Penal Code against the driver;
(iii) certified copy of FIR, wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of deceased.
These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under the Motor Vehicle Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Hence, this contention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on part of the driver."
It is established law that in a claim petition under Motor Vehicle Act, the standard of proof to establish rash and negligent driving by the driver of the offending vehicle is not at par with the criminal case where such rashness and negligence is required to be proved beyond all shadow of reasonable doubt. In Kaushnamma Begum and others v. New India Assurance Company Limited, it was inter alia held by the Hon'ble Supreme Court that the issue of wrongful act or omission on the part of the driver of the motor vehicle involved in the accident has been left to a secondary importance and mere use or Suit No. 281/14 Sunita Gupta & Ors. Vs Rajat Batra & Ors. Page 13 of 43 involvement of motor vehicle in causing bodily injury or death to a human being or damage to property would make the petition maintainable under Sections 166 and 140 of the Motor Vehicle Act.
14. The case of the petitioners is that on 12.08.2013 at about 07:45 PM, the deceased Shri Parvesh Kumar Gupta was crossing the road opposite Hyatt Hotel, Bhikaji Cama Place, New Delhi when the offending vehicle No.DL9CAG0306, Swift Dzire VXI driven by the respondent No.1 hit the deceased due to the rash and negligent driving of the driver of the offending vehicle and the deceased died because he received fatal injuries in the accident. It was averred that as per the information the deceased was taken to Safdarjung Hospital, New Delhi, vide MLC No.160757/13 dated 12.08.2013 and he succumbed to severe injuries. The deceased died on the same day due to shock and hemorrhage due to craniocerebral damage consequent upon blunt force injury/ surface impact to head. On 13.08.2013, the post mortem was conducted and the dead body was handed over to the relatives of the deceased. It was stated that in respect of the accident FIR No.278/13, U/s 279/304A IPC was registered at PS R.K. Puram. In paras 4 to 6 and 15 to18 of her affidavit Ex.PW1/A, PW1 had reiterated the mode and manner of the accident as stated in the claim petition. She stated that on 12.08.2013 at about 09:00 PM, she had called her father on his mobile which was answered by some police official who told her that her father had met with an accident. She was informed that the accident occurred at about 07:45 PM at ring road, Suit No. 281/14 Sunita Gupta & Ors. Vs Rajat Batra & Ors. Page 14 of 43 opposite Hyatt Hotel, Bhikaji Cama Place, Delhi and after the accident her father was taken to Safdarjung hospital for medical aid but he succumbed to the injuries sustained in the accident. Thereafter, on 13.08.2013 post mortem of the deceased's body was conducted, vide MLC No.160757/13 dated 12.08.2013. Likewise in paras 4 to 6 and 13 to16 of his affidavit Ex.PW2/A, PW2 had reiterated the mode and manner of the accident as stated in the claim petition. He deposed that on 12.08.2013 at about 09:00 PM, he received a call from his sister Deepti Gupta who told him that their father had met with an accident. He was informed that his father was taken to Safdarjung hospital for the medical aid but unfortunately he succumbed to the injuries sustained in the accident. Thereafter, on 13.08.2013 post mortem of the deceased's body was conducted in the hospital and after completion of the necessary formalities, the body of his father was handed over to him.
15. The IO had filed Detailed Accident Report containing the criminal record consisting of copy of charge sheet; copy of FIR; copy of site plan; copy of seizure memos, copy of mechanical inspection report of the offending vehicle, copy of arrest memo, copy of MLC and post mortem report, copy of verification report of the RC of the offending vehicle, copy of the insurance policy of the offending vehicle and its verification report and verification report of DL of the respondent No.1 and copy of documents in respect of the petitioners and the deceased. As per the FIR No.278/13 under sections 279/337 IPC, PS R.K. Puram the case was registered on the basis of complaint of DVR Const. Suit No. 281/14 Sunita Gupta & Ors. Vs Rajat Batra & Ors. Page 15 of 43 Mukesh Chand who had stated about the manner of the accident. As per the charge sheet the respondent No.1 has been charge sheeted for the offence under sections 279/304A IPC.
16. The respondents No.1 and 2 had filed the written statement averring that the respondent No.1 was driving the offending vehicle within permissible speed limit at the time of the alleged accident and the alleged accident did not occur due to the negligence of the driver and it was the deceased who was in between a busy main road without making use of any pedestrian crossing, subway or a foot over bridge. It was averred that there was no road crossing at the spot and the same was also corroborated from the site plan prepared by the IO. It was averred that the driver of the vehicle was not driving the vehicle rashly and negligently and was not over speeding the same and it was within the permissible speed limit (3540 kmph). It was averred that the vehicle i.e. WagonR moving in front of the vehicle made an immediate turn towards the right side of the road as the deceased all of a sudden came in front of the WagonR. It was around 7.40 p.m. on 12.08.2013 and due to many boards placed by the Delhi Metro Rail Corporation on that part of the road where the alleged accident took place, no vehicle passing through the said place could cross the speed of more than 3540 kmph. Even the visibility ahead of the moving vehicle was not proper. It was averred that the driver tried his best to avert the accident however, the deceased got hit with the vehicle in question and unfortunately sustained fatal injuries. It was averred that the driver on Suit No. 281/14 Sunita Gupta & Ors. Vs Rajat Batra & Ors. Page 16 of 43 humanitarian ground immediately took the deceased to Safdarjung Hospital for first aid and thereafter the deceased was under the supervision of the doctors. It was averred that the driver has been falsely implicated in FIR No.278/13 under Sections 279/304A IPC registered with PS R.K. Puram. The respondent No.1 had also appeared in the witness box as R1W1 and deposed to that effect.
17. During crossexamination by the learned counsel for the respondents No.1 and 2 PW1 stated that she was a lawyer and she was pursuing her LLM. She admitted that her name was not mentioned in the memo of parties. She admitted that no power of attorney or any authorization letter had been issued in her favour by the petitioners. She stated that she was not an eye witness to the accident. She denied the suggestion that the respondent No.1 had called her up to inform her about the accident and she had deposed falsely that when she called up on the mobile phone of her father, the police officials informed her about the accident. She denied the suggestion that the accident had not taken place due to the rash and negligent driving of the respondent No.1 or that the accident had taken place due to the negligence of the deceased himself who was in the middle of the road and crossing the same without using any zebra crossing or pedestrian over bridge. During crossexamination by the learned counsel for the respondents No.1 and 2 PW2 stated that he was not the eye witness of the accident in question. He denied the suggestion that the accident had not occurred due to rash and negligent driving of the respondent Suit No. 281/14 Sunita Gupta & Ors. Vs Rajat Batra & Ors. Page 17 of 43 No.1. He stated that he had seen the place of accident. He could not say whether it was not possible to cross the road from the alleged spot of accident as there was a barrier at the said place. He denied the suggestion that the respondents No.1 and 2 were not liable to pay any compensation. Thus PW1 admitted that her name was not mentioned in the memo of parties and admitted that no power of attorney or any authorization letter had been issued in her favour by the petitioners. It was argued that the petitioner No.1 never entered into the witness box and sent her daughter who stated that she had no POA or authority letter to depose. However it is not necessary that all the petitioners should enter the witness box as witnesses and the petitioner No.2 had entered the witness box as PW2. Further PW1 is the daughter of the deceased though she is not a party to the petition as she was already married. Both PW1 and PW2 stated that they were not eye witnesses to the accident. A suggestion was put to PW1 that the respondent No.1 had called her up to inform her about the accident which she denied. PW2 stated that he had seen the place of accident though he could not say whether it was not possible to cross the road from the alleged spot of accident as there was a barrier at the said place. However the site plan does not show any barrier at the spot of accident and close to the spot of accident the divider is shown. It would be argued on behalf of the respondents that the petitioners have not examined any eye witness to prove the negligence of the respondent No.1 and as such the petitioners have failed to establish the negligence of the respondent No.1. However the accident is not disputed and the main contention of the Suit No. 281/14 Sunita Gupta & Ors. Vs Rajat Batra & Ors. Page 18 of 43 respondents No.1 and 2 is that the accident had not taken place due to the negligence of the respondent No.1 but due to the negligence of the deceased.
18. During crossexamination by the learned counsel for the petitioners R1W1 stated that on the date of the incident, he was coming from Rajouri Garden and going to Hauz Khas. He stated that he was driving his vehicle at the speed of 3540 kmph. He admitted that on the spot of the accident he met one police official whose name he did not remember. On the suggestion of the police official, he had taken the deceased to the hospital. He denied the suggestion that any trial was going on against him in the criminal court. He admitted that he was arrested in the matter. He denied the suggestion that the deceased was on the verge of the divider. He admitted that the WagonR had not taken a right turn as stated but the vehicle had come towards the extreme right. He stated that he had told the IO that the WagonR going ahead of him had gone to the extreme right and he had very little reaction time. He denied the suggestion that no WagonR was involved in the accident or that the accident was caused due to his negligence. He had stated to the IO in his statement that he was not involved in the accident. As far as he remembered he had given a written complaint in that respect. He stated that the deceased was hit from the left side of his car. He denied the suggestion that due to over speeding the force impact of his car the deceased sustained fatal injuries or that his car was badly damaged due to that impact. He denied the suggestion that the accident took place due to his rash and negligent driving. He denied Suit No. 281/14 Sunita Gupta & Ors. Vs Rajat Batra & Ors. Page 19 of 43 the suggestion that he had not filed any written complaint before the IO that he was not involved in the accident. He denied the suggestion that he had created a story of WagonR.
19. During crossexamination by the learned counsel for the insurance company R1W1 admitted that the accident in question took place in the evening time. He admitted that he was driving the vehicle by following the traffic rules. He admitted that he was driving the vehicle in his lane and under a slow speed. He admitted that in the evening the said road becomes very busy due to the movement of various vehicles. He admitted that it was not possible to cross the road when it was so busy. He admitted that to avoid the accident the WagonR turned extreme right and passed but there was less reaction time for him. He admitted that he took the deceased to the hospital after the accident. He admitted that he was having valid driving license at the time of the accident. He stated that he was driving alone at the time of the accident. He admitted that there was no eye witness to the accident. He admitted that a false case had been registered against him. Thus R1W1 reiterated that he was driving his vehicle at the speed of 3540 kmph. He admitted that on the spot of the accident he met one police official whose name he did not remember and that on the suggestion of the police official, he had taken the deceased to the hospital. In fact the same is also mentioned in the FIR. A suggestion was put to R1W1 that the deceased was on the verge of the divider which he denied but the site plan shows that the accident had Suit No. 281/14 Sunita Gupta & Ors. Vs Rajat Batra & Ors. Page 20 of 43 taken place close to the divider. It is pertinent that R1W1 stated that the WagonR had not taken a right turn as stated but the vehicle had come towards the extreme right and he denied the suggestion that no WagonR was involved in the accident. He stated that the deceased was hit from the left side of his car and as such he had admitted that his car had hit the deceased. A suggestion was put to R1W1 that due to over speeding the force impact of his car the deceased sustained fatal injuries or that his car was badly damaged due to that impact which he denied. However apart from the death of the deceased, the mechanical inspection report of the offending vehicle shows that the front bumper was damaged, front number plate was dented/ pressed, left front fender was dented, left head light was damaged, left side front bonnet was dented/ pressed, front windscreen glass was broken and left pillar was dented/ pressed. As such the offending vehicle had been considerably damaged which would show that it was being driven at speed and the respondent No.1 was not able to control it in time.
20. R1W1 further admitted that the accident in question took place in the evening time. He admitted that he was driving the vehicle by following the traffic rules and that he was driving the vehicle in his lane and under a slow speed. However if the respondent No.1 was driving at slow speed the damage as had occurred to the offending vehicle would not have been there. He admitted that in the evening the said road becomes very busy due to the movement of various vehicles and that it was not possible to cross the road Suit No. 281/14 Sunita Gupta & Ors. Vs Rajat Batra & Ors. Page 21 of 43 when it was so busy. He admitted that to avoid the accident the WagonR turned extreme right and passed but there was less reaction time for him. However even if the contention of the respondent No.1 were to be accepted, it is pertinent that if the offending vehicle was being driven at a slow speed and by maintaining sufficient distance from the vehicle in the front the respondent No.1 would have been able to control his vehicle in time. R1W1 admitted that there was no eye witness to the accident. He admitted that a false case had been registered against him but it is the admitted case of the respondent No.1 that he had hit the deceased and further the mechanical inspection report of the offending vehicle shows considerable damage to it and as such it cannot be said that the case against the respondent No.1 was a false one. The criminal record has been placed on record which shows that the respondent No.1 has been charge sheeted for the offence under Sections 279/304A IPC. During crossexamination PW1 had admitted that he was arrested in the matter. As far as he remembered he had given a written complaint in that respect. However no such complaint has been produced on record. In Basant Kaur and others v. Chattar Pal Singh and others 2003 ACJ 369 MP (DB) it was observed that registration of criminal case against the driver of the offending vehicle was enough to record a finding that the driver of the offending vehicle was responsible for causing the accident. There is nothing to disprove the involvement of vehicle No.DL9CAG0306 in the accident. In view of the testimony of PW1 and PW2 and the documents on record which have remained unrebutted, the negligence of the respondent No.1 has been prima Suit No. 281/14 Sunita Gupta & Ors. Vs Rajat Batra & Ors. Page 22 of 43 facie proved. At the same time there is also merit in the contention of the respondents that the deceased was in between a busy main road without making use of any pedestrian crossing, subway or a foot over bridge and that there was no road crossing at the spot and the same was also corroborated from the site plan prepared by the IO. A perusal of the site plan shows that there is nothing to indicate a zebra crossing at the spot of the accident or to show any spot for crossing. In fact the site plan shows that there was a subway a little away from the spot of the accident and quite clearly the deceased was not crossing the road from any spot meant for crossing the road. The Hon'ble High Court of Karnataka in Koosappa Poojari v. K. Sadabba & Ors. MFA No.6208 of 2002 decided on 21.11.2003 observed that the driver of the vehicle ought to have been more prudent and circumspect while driving. It was however also observed:
"But it cannot be lost sight of the fact that a duty is also cast on a pedestrian and he should use due care and caution in going upon and crossing the road and it is his duty to look out for on coming traffic. In so far as the another duty cast on the pedestrian is concerned, it is needless to say that he has to give the driver a plenty of time to see him and slow down and start before he attempts to cross or put one foot on the crossing. It is not always necessary that the vehicular traffic will have to stop for a pedestrian to cross, for the vehicle needs more time to stop in view of the speed a motor generates. Moreover, whenever a pedestrian is crossing over a roadway at any place other than which is meant for pedestrian crossing, they cannot claim any specific precedence and the responsibility for causing the accident more often than not will have to be shared by the pedestrian along with the vehicle driver.Suit No. 281/14 Sunita Gupta & Ors. Vs Rajat Batra & Ors. Page 23 of 43
In view of this, it cannot be said that it was only the driver of the vehicle in question was solely responsible for the accident."
Reliance was placed in this judgment on the judgment of the Hon'ble Supreme Court in Pramodkumar Rasikbhai Jhaveri v. Karmasey Kunvargi Tak and others (2002) 6 SCC 455 where it was observed:
"The following observation of the High Court of Australia in Astley v. Austrust Ltd. ((1999) 73 ALJR 403) is worthy of quoting.
A finding of contributory negligence turns on a factual investigation whether the plaintiff contributed to his or her own loss by failing to take reasonable care of his or her person or property. What is reasonable care depends on the circumstances of the case. In many cases, it may be proper for a plaintiff to rely on the defendant to perform its duty. But there is no absolute rule. The duties and responsibilities of the defendant are a variable factor in determining whether contributory negligence exists and, if so, to what degree. In some cases, the nature of the duty owed may exculpate the plaintiff from a claim of contributory negligence; in other cases, the nature of the duty may reduce the plaintiff's share of responsibility for the damage suffered; and in yet other cases the nature of the duty may not prevent a finding that the plaintiff failed to take reasonable care for the safety of his or her person or property. The duty owed by the defendant, although relevant, is one only of many factors that must be weighed in determining whether the plaintiff has so conducted itself that it failed to take reasonable care for the safety of its person or property."Suit No. 281/14 Sunita Gupta & Ors. Vs Rajat Batra & Ors. Page 24 of 43
In this case the contributory negligence of the claimant was held to be 25%. Further the Hon'ble High Court of Karnataka in Leela Bai v. The Managing Director & Ors. decided on 13.6.2012 held the contributory negligence of the deceased who was attempting to cross the road on the flyover to be 40%. Thus in view of the above discussion the deceased had also contributed to the happening of the accident and as such his contributory negligence is apportioned as 25% and the negligence of the respondent No.1 would be 75%.
21. It was stated that the deceased died because he received fatal injuries in the accident. It was averred that as per the information the deceased was taken to Safdarjung Hospital, New Delhi, vide MLC No.160757/13 dated 12.08.2013 and he succumbed to severe injuries. The deceased died on the same day due to shock and hemorrhage due to craniocerebral damage consequent upon blunt force injury/ surface impact to head. On 13.08.2013, the post mortem was conducted and the dead body was handed over to the relatives of the deceased. The post mortem report is on record as per which the death was due to shock and hemorrhage due to craniocerebral damage consequent upon blunt force injury/ surface impact to head and all the injuries were ante mortem in nature. Thus it stands established that the deceased had sustained injuries in the alleged accident due to which he died. This issue is decided accordingly.
Suit No. 281/14 Sunita Gupta & Ors. Vs Rajat Batra & Ors. Page 25 of 43 Issue No.2
22. In T.O. Anthony v. Karvarnan & Ors., (2008) 3 SCC 748, it was held as under:
"6. 'Composite negligence' refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrongdoers, it is said that the person was injured on account of the composite negligence of those wrongdoers. In such a case, each wrongdoer is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrongdoer separately, nor is it necessary for the court to determine the extent of liability of each wrongdoer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence of the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence."
In the present case as well though the deceased is found to have contributed to the negligence the claim for compensation by the petitioners is not defeated merely by reason of the negligence on the part of the deceased but the compensation recoverable by the petitioners would stand reduced in Suit No. 281/14 Sunita Gupta & Ors. Vs Rajat Batra & Ors. Page 26 of 43 proportion to the contributory negligence of the deceased.
23. The petitioners are the legal representatives of the deceased being the wife and son of the deceased. PW1 and PW2 were crossexamined on the point of dependency and during crossexamination by the learned counsel for the respondents No.1 and 2 PW1 stated that she was not earning anything since the previous two years when she restarted her studies. She stated that she had not filed ITR for the past two years. She stated that her brother had resigned from his job one day before the death of his father. Prior to that he was working. She could not tell his salary. She stated that her brother had got a job about a week prior to her examination. During crossexamination by the learned counsel for the insurance company PW1 stated that they were then three i.e. her mother Sunita Gupta, brother Rahul Gupta and herself. She stated that her mother was a housewife. She denied the suggestion that they were not dependent on the deceased. During crossexamination by the learned counsel for the insurance company PW2 stated that he was doing a job and earning Rs.20,000/ per month. Thus PW1 stated that she was not earning anything since the previous two years when she restarted her studies and she had not filed ITR for the past two years. However PW1 was married and as such she could not be regarded as dependent on the deceased. PW1 had stated that her brother had resigned from his job one day before the death of his father. Prior to that he was working. She could not tell his salary. PW2 stated that he was doing a job and earning Rs.20,000/ per month. During Suit No. 281/14 Sunita Gupta & Ors. Vs Rajat Batra & Ors. Page 27 of 43 examination by the Tribunal the petitioner No.2 Rahul stated that he was 29 years old at present. He stated that he was doing a job and earning Rs. 15,000/ to Rs.17,000/ p.m. and gross income was Rs.20,000/ p.m. Being a major the petitioner No.2 would not be regarded as dependent on the deceased. PW1 had stated that her mother was a housewife. The petitioner No.1 Ms. Sunita Gupta stated that she was 6061 years old at present. She stated that she has 2 children - one son and one daughter and the daughter was married. She stated that she was not working and that her in laws had already expired. As such being the wife the petitioner No.1 would be regarded as dependent on the deceased. Thus the only dependent on the deceased at the time of the accident was his wife.
24. The petitioners have claimed loss of dependency on the basis that the deceased was serving as Photographer in a government organization i.e. Reprography Unit at Nehru Memorial Museum & Library, Teen Murti House, New Delhi and was getting a sum of Rs.15,000/ as pension. It was averred that the deceased was healthy and active and was not suffering from any kind of ailment and he was looking after his family members. The deceased was 62 years old at the time of accident and had retired from Government service in the year 2010. It was averred that whatever had been earned by the deceased was always contributed for the welfare of the family and his children. Therefore, the loss caused to the family of the deceased could not be ascertained in terms of money as the amount of compensation could neither Suit No. 281/14 Sunita Gupta & Ors. Vs Rajat Batra & Ors. Page 28 of 43 bring back the deceased to the LRs/dependents nor the same dignity and comfort that they were living in during the lifetime of the deceased. It was averred that the petitioners were at the stage of their life when they needed most and had lost their husband/father. It was averred that the love and care the deceased had for his wife and two children i.e. son petitioner No.2 and daughter (married) could not be measured in terms of money. It was averred that the deceased was contemplating to set up his own business of photography institute based upon his vast experience but the untimely death of the deceased had frustrated the same and an amount of Rs.20,00,000/ was claimed on that account. It was averred that the petitioner No.1 was entirely dependent for emotional attachment for love and affection on the deceased and the untimely death of the deceased had caused great mental agony and pain to the petitioners and other family members and harassment was caused to the petitioners on account of the accident. It was stated that the petitioner No.2 was an unmarried son of the deceased and of marriageable age and the untimely death of the deceased had caused a great loss to the family of the deceased. PW1 in paras 7 to 14 of her affidavit Ex.PW1/A had deposed to that effect. Copy of identity card of the deceased is Ex.PW1/6. PW1 stated that her father was drawing pension of Rs.19,846/ approximately and letter dated 20.03.2014 issued by NMML is Mark PW1/7. She stated that her father was a Graduate and after retirement he was employed with M/s R.K. Engineers having office at 135, Khanna Market, Lodhi Road, New Delhi and was drawing Rs.15,000/ per month from the said firm but his untimely death had caused Suit No. 281/14 Sunita Gupta & Ors. Vs Rajat Batra & Ors. Page 29 of 43 financial loss to the petitioners. Copy of graduation certificate of the deceased and copy of certificate issued by M/s R.K. Engineers is Ex.PW1/8 (colly). She stated that the dream of her mother to get the petitioner No.2 Rahul Gupta married was shattered by the untimely death of her father. PW2 in paras 7 to 12 of his affidavit Ex.PW2/A had deposed to that effect. Letter issued by NMML regarding the retirement of his father dated 20.3.2014 is Ex.PW2/1a.
25. During crossexamination by the learned counsel for the respondents No.1 and 2 PW1 stated that she had not placed any certificate on record to show that her father was healthy and active. She stated that her father was not assessed to income tax after his retirement in November 2010. She stated that the pension of her father was approximately Rs.15,000/ to her knowledge. She was not aware if they were receiving any family pension. She admitted that she had not placed any appointment letter or any pay slip from R.K. Engineers on record. She admitted that she had not placed on record any document to show that her father was contemplating to set up his business of photography. During crossexamination by the learned counsel for the respondents No.1 and 2 PW2 stated that he had not seen any appointment letter and salary proof issued by M/s R.K. Engineers in favour of his deceased father. Thus PW1 stated that she had not placed any certificate on record to show that her father was healthy and active. She stated that her father was not assessed to income tax after his retirement in November 2010. She stated that the pension of her father was approximately Rs.15,000/ to her knowledge. Suit No. 281/14 Sunita Gupta & Ors. Vs Rajat Batra & Ors. Page 30 of 43 Though the amount of pension has been stated differently it is the case of the petitioners themselves that at the time of the accident the deceased had retired from his service and was drawing pension. PW1 had stated that she was not aware if they were receiving any family pension but the same would be receivable. Even otherwise the petitioners have not proved what would be the loss to them on this account and as such the amount of pension which the deceased was drawing at the time of the accident cannot be taken into consideration for calculating the income of the deceased for computation of loss of dependency. It is the case of the petitioners that the deceased was contemplating setting up his own business, however during crossexamination PW1 admitted that she had not placed on record any document to show that her father was contemplating to set up his business of photography. As such in absence of any document to show that any steps were taken by the deceased to set up his business nothing much turns on the same.
26. It is further the case of the petitioners that at the time of his death the deceased was employed with M/s R.K. Engineers and he was drawing an amount of Rs.15,000/ per month from the said firm. PW1 admitted that she had not placed any appointment letter or any pay slip from R.K. Engineers on record. PW2 also stated that he had not seen any appointment letter and salary proof issued by M/s R.K. Engineers in favour of his deceased father. The petitioners had relied upon one letter dated 20.3.2014 from M/s R.K. Engineers as per which the deceased was working on part time basis with Suit No. 281/14 Sunita Gupta & Ors. Vs Rajat Batra & Ors. Page 31 of 43 their firm from 1.5.2011 till 12.8.2013 and he was employed as coordinator for various site works. It was stated that he was paid honorarium of Rs.15,000/ lump sum per month. The petitioners in support of their case have examined PW3 who had brought the record in respect of the deceased i.e. appointment letter Mark B, the bio data form which was filled up after joining the company by the deceased along with his documents which are Ex.PW3/1, copy of salary slip of the deceased for the months of April 2013 to August 2013 which are Ex.PW3/2 and the salary register on the basis of which the salary slip was got prepared which is Ex.PW3/3. He stated that in August, 2013 only a salary of 12 days was paid to the deceased's family.
27. During crossexamination by the learned counsel for the respondent No. 3 PW3 stated that the other partner is his son Anmol Sethi. He admitted that he had not brought the original partnership deed. He stated that the said partnership firm sells and maintains security equipment. He stated that a person should be a Graduate and have experience to be appointed as Administrative Manager. He stated that the deceased was a photographer but he was looking after the equipment and on that basis he was engaged. He did not remember the exact number of employees but it was more than 20. He admitted that they were registered with PF and ESI. He stated that he had not brought the documents as the deceased was not covered under ESI and PF. He stated that the deceased was getting a salary of Rs.15,500/. The bio data Ex.PW3/1 which he had mentioned was of appointment of the deceased. He Suit No. 281/14 Sunita Gupta & Ors. Vs Rajat Batra & Ors. Page 32 of 43 admitted that there was no stamp on the bio data but it had his signatures and the date of joining was mentioned on the same. He admitted that the director was written in the bio data form which was a partnership concern. He denied the suggestion that he had filed a false bio data. He admitted that no stamp was mentioned on the photographs. He denied the suggestion that there was a difference in the signature on the bio data between the signatures of driving license. He denied the suggestion that Mark B was forged and fabricated document or that on his instance the said documents were being framed. He admitted that his partnership concern pays ITR. He admitted that a regular audit was being conducted in his partnership concern. He had not brought any proof in respect of audit of his partnership firm. He had no personal knowledge about the present case. Thus PW3 had not brought the original partnership deed. He stated that the deceased was a photographer but he was looking after the equipment and on that basis he was engaged. He admitted that they were registered with PF and ESI but the deceased was not covered under ESI and PF. He stated that the deceased was getting a salary of Rs.15,500/. He was crossexamined on the bio data Ex.PW3/1 which he had mentioned was of appointment of the deceased but nothing much turns on the same. He denied the suggestion that Mark B which is the appointment letter was forged and fabricated document. A perusal of the salary slips produced by PW3 shows that the deceased was paid a salary of Rs.15,500/ per month and there is nothing to dispute the said documents. PW1 had stated that her father was not assessed to income tax after his retirement in November 2010. As such the Suit No. 281/14 Sunita Gupta & Ors. Vs Rajat Batra & Ors. Page 33 of 43 income of the deceased for computation of loss of dependency is taken as Rs. 15,500/ per month.
28. It is the case of the petitioners that the deceased was 62 years of age at the time of the accident and it was so stated in the claim petition and PW1 and PW2 had also deposed to that effect. During crossexamination by the learned counsel for the insurance company PW2 admitted that Ex.PW1/1A does not mention the date of his father's retirement volunteered he retired in 2010. He stated that the date of birth of his father is 17th November 1950. He stated that the driving license of his father was on record which shows his date of birth. The DL of the deceased was filed with the DAR as well as with the documents produced by PW3 and the same shows the date of birth of the deceased to be 7.11.1950. As such the deceased would have been more than 62 years old on the date of the accident i.e. 12.8.2013. As per the judgment of the Hon'ble Supreme Court in Sarla Verma and others v. Delhi Transport Corporation and others 2009 ACJ 1298 (SC) the multiplier of 7 applies for calculating the loss of income where the age of the deceased is 61 to 65 years.
29. As observed above the only dependent on the deceased was his wife. As per the judgment of the Hon'ble Supreme Court in Sarla Verma's case as the number of dependents was 1 there would be 1/3rd deduction towards personal and living expenses of the deceased. As regards the future Suit No. 281/14 Sunita Gupta & Ors. Vs Rajat Batra & Ors. Page 34 of 43 prospects the Hon'ble Supreme Court in Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65 while approving the ratio with regard to future prospects in Sarla Verma (Smt.) & Ors. (supra) held as under: "38. With regard to the addition to income for future prospects, in Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002], this Court has noted the earlier decisions in Susamma Thomas [Kerala SRTC v. Susamma Thomas, (1994) 2 SCC 176 : 1994 SCC (Cri) 335] , Sarla Dixit[(1996) 3 SCC 179] and Abati Bezbaruah [Abati Bezbaruah v. Geological Survey of India, (2003) 3 SCC 148 : 2003 SCC (Cri) 746] and in para 24 of the Report held as under: (Sarla Verma case [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002], SCC p. 134) "24. ... In view of the imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. (Where the annual income is in the taxable range, the words "actual salary‟ should be read as actual salary less tax‟). The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of the deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardise the addition to avoid different yardsticks being applied or different methods of calculation being adopted. Where the deceased was self employed or was on a fixed salary (without provision for annual increments, etc.), the courts Suit No. 281/14 Sunita Gupta & Ors. Vs Rajat Batra & Ors. Page 35 of 43 will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances."
6. The standardization of addition to income for future prospects shall help in achieving certainty in arriving at appropriate compensation. We approve the method that an addition of 50% of actual salary be made to the actual salary income of the deceased towards future prospects where the deceased had a permanent job and was below 40 years and the addition should be only 30% if the age of the deceased was 40 to 50 years and no addition should be made where the age of the deceased is more than 50 years. Where the annual income is in the taxable range, the actual salary shall mean actual salary less tax. In the cases where the deceased was selfemployed or was on a fixed salary without provision for annual increments, the actual income at the time of death without any addition to income for future prospects will be appropriate. A departure from the above principle can only be justified in extraordinary circumstances and very exceptional cases."
In the instant case the petitioners would not be entitled to addition of any income towards future prospects as the deceased was more than 50 years old.
Accordingly the loss of dependency as per the monthly income i.e. Rs.15,500/ is calculated as under :
Suit No. 281/14 Sunita Gupta & Ors. Vs Rajat Batra & Ors. Page 36 of 43
Rs.15,500/ - Rs.5,167/ approximately (i.e. 1/3rd towards personal expenses) = Rs.10,333/ X 12 (annual) X 7 (multiplier) = Rs.8,67,972/ rounded off to Rs.8,68,000/.
30. The petitioners are also entitled to compensation for loss of love and affection, loss of consortium, loss of estate and funeral expenses.
The total compensation is determined as under:
Loss of dependency : Rs.8,68,000/
Love and affection : Rs.1,00,000/
Loss of consortium : Rs.50,000/
Loss of Estate : Rs.10,000/
Funeral expenses : Rs.25,000/
Total : Rs.10,53,000/
Thus, the total compensation would amount to Rs.10,53,000/. RELIEF
31. The petitioners are awarded a sum of Rs.10,53,000/ (Rs.Ten Lacs Fifty Three Thousand only) with interest at the rate of 9% per annum from the date of filing the DAR till its realization, including, interim award, if any already passed in favour of the petitioners and against the respondents. The petitioner No.2 Shri Rahul Gupta would be entitled to 10% share in the awarded amount. Suit No. 281/14 Sunita Gupta & Ors. Vs Rajat Batra & Ors. Page 37 of 43 Though not joined as a petitioner but PW1 Ms. Deepti Gupta being the daughter of the deceased would be entitled to 10% share in the awarded amount as the deceased would have performed some obligations towards a married daughter. The petitioner No.1 Smt. Sunita Gupta would be entitled to 80% share in the awarded amount.
32. For safeguarding the compensation amount from being frittered away by the claimants, directions have been given by Hon'ble Supreme Court for preserving the award amount in the case of Jai Prakash Vs. National Insurance Co. Ltd. and Others (2010) 2 Supreme Court Cases 607. In view of the directions contained in the above judgment the award amount is to be disbursed as follows:
a) The entire share of the petitioner No.2 and of Ms. Deepti Gupta be released to them by transferring it into their savings account in UCO Bank, Patiala House Court, New Delhi. 20% of the share of the petitioner No.1 be released to her by transferring it into her savings account and remaining amount out of her share be kept in FDRs in UCO Bank, Patiala House Court, New Delhi in the following manner:
1.Fixed deposit in respect of 10% for a period of one year.
2.Fixed deposit in respect of 10% for a period of two years.
3.Fixed deposit in respect of 10% for a period of three years.
4.Fixed deposit in respect of 10% for a period of four years. Suit No. 281/14 Sunita Gupta & Ors. Vs Rajat Batra & Ors. Page 38 of 43
5.Fixed deposit in respect of 10% for a period of five years.
6.Fixed deposit in respect of 10% for a period of six years.
7.Fixed deposit in respect of 10% for a period of seven years.
8.Fixed deposit in respect of 10% for a period of eight years.
b) The respondent No.3 is directed to deposit the amount directly by way of crossed cheques in terms of the above order in UCO Bank, Patiala House Court, New Delhi in the name of UCO Bank, Patiala House Court, New Delhi A/c Ms. Sunita Gupta, Shri Rahul Gupta and Ms. Deepti Gupta within 30 days of the passing of the award.
c) Cheques be deposited within thirty days herefrom under intimation to the petitioners. In case of default, the respondent No.3 shall be liable to pay further interest @ 12% per annum for the period of delay.
d) On the deposit of the award amount, the Branch Manager of UCO Bank, Patiala House Court, New Delhi is directed to prepare Fixed Deposit Receipts as ordered above and the balance amount be released.
e) The interest on the fixed deposits shall be paid monthly by automatic credit of interest in the saving account of the petitioner No.1. Suit No. 281/14 Sunita Gupta & Ors. Vs Rajat Batra & Ors. Page 39 of 43
f) The withdrawal from the aforesaid account shall be permitted to the petitioner No.1 after due verification and the bank shall issue photo identity card to the petitioner No.1 to facilitate her identity.
g) No cheque book shall be issued to the petitioner No.1 without the permission of the court.
h) The original fixed deposit receipts shall be retained by the bank in safe custody. However, the original pass book shall be given to the petitioner No.1 along with the photocopy of the fixed deposit receipts. Upon the expiry of period of FDR the bank shall automatically credit the maturity amount in the saving account of the beneficiary.
i) The original fixed deposit receipts shall be handed over to the petitioner No.1 on the expiry of the period of the fixed deposit receipts.
j) No loan, advance, or withdrawal shall be allowed on the said FDRs without the permission of the court.
k) On the request of the petitioners, the bank shall transfer the saving account to any other branch/bank, according to the convenience of the petitioners. Suit No. 281/14 Sunita Gupta & Ors. Vs Rajat Batra & Ors. Page 40 of 43
l) The petitioners shall furnish all the relevant documents for opening of the saving bank account and Fixed Deposit to Senior Manager of UCO Bank, Patiala House Court, New Delhi.
33. The petitioners shall file two sets of photographs along with their specimen signatures, out of which one set to be sent to the Nodal Officer, UCO Bank, Patiala House Court, New Delhi along with copy of the award by Nazir and the second set be retained to the court for further reference. The photographs be stamped and sent to the bank. The petitioners shall also file the proof of residence and furnish the details of the bank account with the Nazir within a week. The petitioners shall file their complete address as well as address of their counsel for sending the notice of deposit of the award amount. APPORTIONMENT OF LIABILITY:
34. The respondent No.1 is the driver, the respondent No.2 is the owner and the respondent No.3 is the insurer of the offending vehicle. Thus the respondents No.1, 2 and 3 are held jointly and severally liable. No evidence has been led on behalf of the respondent No.3. Respondent No.3 i.e. Bajaj Allianz General Insurance Co. Ltd. being the insurance company in its reply had stated that the vehicle No.Dl9CAG0306 was insured with the respondent No.3 vide policy No. OG149991180100004160 for the period 04.07.2013 to 03.07.2014. There is no evidence on behalf of the respondent No.3 to show Suit No. 281/14 Sunita Gupta & Ors. Vs Rajat Batra & Ors. Page 41 of 43 that there was any violation of the rules and terms of policy by the respondents No.1 and 2 and in fact the duly verified documents in respect of the offending vehicle were placed on record by the IO with the DAR. Hence, the respondent No.3 being the insurance company in respect of the offending vehicle is liable to pay the compensation on behalf of the respondents No.1 and 2. The respondent No.3 being the insurer is directed to deposit the award amount within 30 days with interest at the rate of 9% from the date of filing of the DAR till its realization in UCO Bank, Patiala House Courts, New Delhi failing which it is liable to pay interest at the rate of 12% per annum for the period of delay.
35. Nazir to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself. The respondent No.3 shall deposit the award amount along with interest upto the date of notice of deposit to the claimants with a copy to their counsel and the compliance report shall be filed in the court along with proof of deposit of award amount, the notice of deposit and the calculation of interest on 11.5.2015.
An attested copy of the award be given to the parties (free of cost) and a copy be also sent to the Nodal Officer, UCO Bank, Patiala House. Suit No. 281/14 Sunita Gupta & Ors. Vs Rajat Batra & Ors. Page 42 of 43 File be consigned to Record Room.
Announced in open court
on this 10th day of February, 2015 (GEETANJLI GOEL)
PO: MACT2
New Delhi
Suit No. 281/14
Sunita Gupta & Ors. Vs Rajat Batra & Ors. Page 43 of 43