Delhi District Court
Shweta Bhagat W/O Late Sh. Santosh ... vs Shobhit Aggarwal S/O Rajiv Aggarwal on 20 January, 2015
IN THE COURT OF SH. ARVIND KUMAR: PRESIDING OFFICER MOTOR
ACCIDENT CLAIM TRIBUNAL: KARKARDOOMA COURTS:
(SHAHDARA) : DELHI
M.A.C. Petition No: 121/12
Unique Case I.D No: 02402C0227062012
1. Shweta Bhagat W/o Late Sh. Santosh Chourasia
2. Viraaj Chaurasia S/o Late Sh. Santosh Chourasia - aged 1 year
3. Yogender Prasad Chourasia S/o Sh. Muneshwar Bhagat
4. Lalita Devi W/o Yogender Prasad Chourasia
(Petitioner no. 2 is minor through his mother and natural guardian Shweta
Bhagat petitioner no. 1)
All are resident of : Flat No. D-2, Pocket-2,
New Kondli, Mayur Vihar, Phase-III, Delhi-110096.
...Petitioners
VERSUS
1. Shobhit Aggarwal S/o Rajiv Aggarwal
R/o H. No. 105-A, Bombay Colony, Richpal Puri,
Near Navyug Market, Ghaziabad, U.P.
2. Tata AIG General Insurance Co. Ltd.
1st Floor, Lotus Tower, Community Centre,
New Friends Colony, New Delhi.
...Respondents
Presented on : 16.08.2012
Reserved for judgment on : 12.01.2015
Judgment delivered on : 20.01.2015
JUDGMENT
M.A.C. Petition No: 121/12 Page No. 1/24
1. The petitioners have filed the present claim under section 166 & 140 of the Motor Vehicle Act, claiming compensation of Rs. 5,00,00,000/- (Rs. Five Crores only) towards the death of Sh. Santosh Chourasia, in the road side accident occurred on 10.04.2012.
2. The brief facts, as stated by the petitioners, are that on 10.04.2012, deceased was crossing the road behind Fortis Hospital, Near Gupta Chauraha, Sector-62, Noida, U.P and a Nano Car bearing no. UP-14-BM- 1622 driven rashly, negligently and at high speed, hit the deceased. As a result, the deceased suffered grievous injuries and was removed to Fortis Hospital where he was declared brought dead. The petitioners stated that the deceased was 36 years of age and was earning Rs. 11,36,014/- per annum and left behind his wife, a son and parents.
3. Written statement is filed by the respondent No. 1 stating that the petitioner has not caused any accident and he was deliberately impleaded in the present matter. It is stated that petitioners have manipulated the document regarding income of the deceased. The respondent no. 1 stated that on 10.04.2012, at about 7.30 p.m, the deceased, Sh. Santosh Chaurasia was crossing the road at Gupta Chauraha, behind Fortis Hospital, Sector 62, Noida and suddenly two bulls madly fighting with each other on the road, hit the deceased with their sharp horns and the deceased went in the air and fell on the road and sustained fatal injuries and the bulls again attacked the deceased and damaged several vehicles. It is stated that the respondent no. 1, who was returning from his office and was going towards Gupta Chauraha, was riding in his Tata Nano Car driving cautiously and at a slow speed and when he saw the said incident he immediately stopped his car. However, one of the bull after hitting the deceased also hit the car of the answering M.A.C. Petition No: 121/12 Page No. 2/24 respondent at upper portion of the bonnet. It it stated that the said incident was witnessed by the co-passengers and nearby shop keepers and was also published in Dainik Jagran newspaper on the very next day. It is stated that the distance between Fortis Chauraha and Gupta Chauraha was 200 mtrs. only and there was huge rush on the road and it was highly unimaginable that one could drive his vehicle at high speed. It is also stated that the vehicle of the respondent no. 1 was insured with TATA AIG General Insurance Co. Ltd.
4. The respondent no. 2/insurance company filed written statement admitting that the vehicle no. UP-14BM-1622 was insured vide policy no.0140021811 in the name of Mr. Shobhit Aggarwal, valid for the period 13.10.2011 to 12.10.2012. The respondent No. 2/insurance company submitted that the insurance company would not be liable if the driver was not having valid driving licence at the time of accident or if there was violation of terms and conditions of policy. It is also stated that insurance company would not be liable to pay compensation if it was proved that deceased was negligent and responsible for the said accident.
5. On the basis of the pleadings following issues were framed:-
1. Whether Sh. Santosh Chourasia suffered fatal injuries in the accident occurred on 10.04.2012 due to rash and negligent driving of vehicle No. UP-14BM-1622 (Car) being driven by respondent No.1? OPP
2. Whether the petitioners are entitled for any compensation, if so, to what amount and from whom?OPP
3. Relief.
6. The petitioner no. 1 examined herself as PW-1. The petitioners also M.A.C. Petition No: 121/12 Page No. 3/24 examined Sh. B.M. Singh, Manager HR, Amar Ujala Publication Ltd as PW-2 and Sh. Yadvesh as PW-3. On the other hand, the respondent no. 1 examined himself as R1W1. The respondent no. 2 examined Dr. Abhinandan Borah, Fortis Hospital as R2W1, Dr. S.R. Singh, Forensic Science Consultant, Former Director, Central Forensic Science Laboratory, CFSL (CBI) as R2W2 and Dr. Rajeev Sharma, Sr. Forensic Specialist and Toxicologist, Former Police Surgeon as R2W3.
7. I have heard counsels for the parties and gone through the material on record. My findings on issues are as under :
ISSUE NO. 18. The petitioner No.1 examined herself as PW-1 and deposed that Sh. Santosh Chaurasia met with an accident on 10.04.2012 with a car bearing no. UP-14BM-1622 and died. The PW-1 exhibited copy of entire educational documents as Ex. PW-1/1(colly), promotion letter dated 26 th November'2007 as Ex. PW-1/2, copy of letter dated 23 rd April'2007 as Ex. PW-1/3, copy of letter dated 20.04.2006 as Ex. PW-1/4, copy of letter dated 4 th November'2003 as Ex. PW-1/5, copy of letter dated 11 th November'2002 as Ex. PW-1/6, copy of appointment letter as Ex. PW-1/7, copy of letter dated 11th June'2003 as Ex. PW-1/8, copy of letter dated 5 th September'2003 as Ex. PW-1/9, copies of letter dated 14 th September'2000, 28th September'2000, 30th March'2001 and 25th October'2004 as Ex. PW-1/10 (colly), letter dated 1 st May'2001 as Ex. PW-1/11, copy of certificate dated 17 th December'2007 as Ex. PW-1/12, copy of statement of account 2007-2008 as Ex. PW-1/13, copy of acknowledgment of income tax return for the assessment year 2005-2006, 2006-2007, 2007-2008 as Ex. PW-1/14 (colly), copy of marriage certificate as Ex. PW-1/15, copy of certificate dated 14 th May'2011 as Ex. PW-1/16, copy of M.A.C. Petition No: 121/12 Page No. 4/24 birth certificate of petitioner No. 2 as Ex. PW-1/17, copy of PAN card as Ex. PW-1/18, certified copies of criminal case record as Ex. PW-1/19(colly), copy of letter of intent dated 8 th December'2011 as Ex. PW-1/20, certificate dated 25th October'2011 as Ex. PW-1/21, copy of appointment letter dated 1 st June'2010 as Ex. PW-1/22 and rent receipts as Ex. PW-1/23(colly). The PW-1 marked the copy of GMAT test as mark A, copy of internet based test examine score report as mark B,copy of visa of Master Viraj as mark C and copy of appointment letter as mark D(colly). During cross-examination, the PW-1 stated that she had got information about the accident of her husband on telephone.
9. The petitioner has examined one more witness Sh. Yadvesh as PW-3. The PW-3 stated that on 10.04.2012, at 7.30 p.m. he along with Harvinder and Sh. Santosh Chaurasia, was going on foot and they were crossing the road behind Fortis Hospital, Near Gupta Chauraha, Sector-62, Noida, U.P and while crossing the road Sh. Santosh Chaurasia was hit by a bull and then he fell on the middle of the road. In the meantime, a Nano car bearing no. UP-14BM-1622 came from behind at a high speed and hit Sh. Santosh Chaurasia. The PW-3 stated that Sh. Santosh Chaurasia suffered grievous injuries and a PCR Van came and removed the injured to Fortis Hospital where he was declared brought dead due to the injuries suffered in the accident. It is stated that the said accident was caused due to negligent driving on the part of driver of car no. UP-14B-1622. The PW-3 exhibited attested copies of salary slips of Sh. Santosh Chaurasia for the month of February, 2012 and March, 2012 as Ex.PW-3/1 (colly) and copy of his identity card as Ex.PW-3/2. During cross-examination, the PW-3 stated that he was working as Associate Vice President in Amar Ujala and on 10.04.2012 he along with deceased and Sh. Harvinder Singh had gone to a departmental store near Gupta Chauraha as the deceased had to purchase some M.A.C. Petition No: 121/12 Page No. 5/24 household goods from Departmental Store. The PW-3 stated that he remained on the spot after the accident and even accompanied the deceased/ injured to the hospital separately from the PCR Van which removed the deceased to the hospital and the PCR Van came on the spot itself as it was already stationed near the spot. The PW-3 stated that police had recorded his statement in the hospital on the same day and had already recorded the statement of Sh. Harvinder Singh. The PW-3 stated that after purchasing of the goods by the deceased they all started crossing the road almost side by side. It was a two way road and they had crossed half of the road after which the deceased when started crossing the other side of the road, went a little ahead of them, then two bulls came running from right side and one of the said bulls had hit the deceased and due to the impact of the hitting, the deceased was thrown in the air for about 3-4 feet and fell on the middle of the mettled road and there was a chaos and he saw the deceased Sh. Santosh Chaurasia lying on the road with face upside. The PW-3 stated that he could not tell at what distance the car was, when the bull had hit the deceased and he had seen the car after it had hit the deceased. The PW-3 stated that the left front wheel of the car had struck against the right shoulder of the deceased and the head of the deceased was trapped between left front wheel and the bumper. The PW-3 stated that the driver of the car and the car were on the spot after the accident and the bull had not struck against the car. The PW-3 stated that the front bumper of the car was slightly hanging on its left from its normal position after the accident. The PW-3 stated that there were 100-150 persons near to the spot after the accident and the weather was normal on that day though some rain was there before the accident. The PW-3 stated that it was running and busy road and normally traffic run at the speed of 40-50 km/hr. and the traffic was normal and running smoothly. The PW-3 stated that the police had recorded his statement in the M.A.C. Petition No: 121/12 Page No. 6/24 hospital. The PW-3 stated that Ex.PW-3/3 was his statement. The PW-3 stated that the portion A to B was inserted by him in his statement after 15-20 minutes than the other part of the statement when the police personal asked him to mention the number of the vehicle, name of the his father and his mobile number. The PW-3 stated that the deceased fell down on the road after the bull hit the deceased and the car had struck the deceased within 3-4 seconds and the car did not ran over the body of the deceased. The PW-3 also stated that position of the car had been wrongly shown in site plan, Ex.PW-3/4. The PW-3 stated that the deceased had sustained injuries on his head and chest. The PW-3 stated that the traffic jam was at a distance of about 2 kms from the place of accident.
10. On the other hand, the respondent no. 1 examined himself as R1W1 and deposed that no motor accident took place on 10.04.2012 behind Fortis Hospital, Near Gupta Chauraha, Sector-62, Noida, U.P as alleged in the petition. It is stated that on 10.04.2012 at about 7.30 p.m., the deceased Sh. Santosh Chaurasia was crossing the road at Gupta Chauraha, behind Fortis Hospital, Sector-62, Noida and suddenly two stray bulls, madly fighting with each other on the road, hit the deceased with their sharp horns and the deceased went in the air and fell on the road and sustained fatal injuries and the bulls again attacked the deceased and damaged several vehicles. It is stated by respondent no. 1 that on 10.04.2012, he was returning from his office and was going towards Gupta Chauraha in his Tata Nano car bearing no. UP-14BM-1622 slowly on the left side of the road and there was busy traffic on the road and 100-150 persons were at the spot seeing the ongoing bull fight. The respondent no. 1 stated that when he saw the aforesaid incident he immediately stopped his car. However, one of the bulls after hitting the deceased also hit the car of the respondent no. 1 at upper portion M.A.C. Petition No: 121/12 Page No. 7/24 of the bonnet of the car, and the front indicator of the respondent's car and bumper were not damaged but bonnet of the car got bent due to direct hit of the bull. The R1W1 stated that the incident was published in Dainik Jagran on 11.04.2012 that two stray bulls hit Sh. Santosh Chaurasia. The R1W1 stated that his vehicle was insured with Tata AIG General insurance company ltd. and he was having valid driving licence. The R1W1 exhibited copy of registration certificate as Ex.R1W1/1, copy of driving licence of Shobhit Aggarwal as Ex.R1W1/2, copy of insurance policy as Ex.R1W1/3, copy of newspaper mentioning about the incident, at point A, as Ex.R1W1/4, photographs of car as Ex.R1W1/5. During cross-examination, the R1W1 stated that the police had filed the charge sheet against him in respect of the said case and the police had seized the vehicle no. UP-14BM-1622 and he had not lodged any protest against his false involvement in the present case before any higher authority of the police. The R1W1 stated that he had made protest to the police orally and at the time of release of the vehicle, he had also protested before the court that his vehicle was not involved in the accident.
11. On the other hand, insurance company examined Dr. Abhinandan Borah, Fortis Hospital, Noida as R3W1/1. The R2W1 stated that he had brought the summoned record in respect of registration no. 22670 DML DT. 10.04.2012, in respect of Patient Yogender Chourasia and at the time of examination, the patient was bleeding from mouth, nose and ear but there was no external injuries on his body and the cause of bleeding was probably due to internal injuries to the head and chest and no pulse and blood pressure was recorded and patient was unconscious and gasping. During cross-examination, the R2W1 stated that medical legal report mentioned alleged history as RTA.
M.A.C. Petition No: 121/12 Page No. 8/2412. The R2W2, Dr. S.R. Singh, Forensic Science Consultant deposed that he was engaged by Tata AIG General Insurance co. Ltd. to give his opinion regarding involvement of Tata Nano car bearing no. UP-14BM-1622, in the claim pertaining to the alleged death of Sh. Santosh Chaurasia and a two member Forensic team consisting of R2W2 and Dr. Rajiv Sharma, Forensic Medicine and Medico legal expert, was formed and after going through all the relevant aspects, he prepared detailed report Ex.R3W1/A giving his opinion that the car was in stationary mode when hit by a heavy object like running bull and the deposition of witness Sh. Yadvesh dt. 11.09.2013 pertaining to the car hitting the victim on the shoulder and entrapment of face between bumper and tyre of car no. UP-14BM-1622 did not find any scientific support to damage to the car nor to the body of victim and Dr. Rajeev Sharma had opined that the type, nature and manner of injuries were suggestive of injuries, both external and internal, antemortem in nature produced as a result of blunt force impact over the different body parts and there was higher possibility of such aforesaid injuries having been caused due to strike on body parts by a raging bull elaborated in deposition of witness and medical documents of Fortis Hospital and the injuries on the body were not possible by vehicular impact in the manner as alleged. The R2W2 exhibited the forensic report/ opinion which was prepared by him as Ex.R2W2/1, report of Dr. Rajeev Sharma along with medical records as Ex.R2W2/2. During cross- examination, the R2W2 stated that his report was based on material supplied by insurance company and on experiments and measurements on the vehicle in question and physical examination of the spot of the alleged accident and vehicle components. The R2W2 stated that he had charged his professional fees and he had not brought any qualification certificate. The R2W3 stated that he examined the vehicle on 26.12.2013 after about one and half year of M.A.C. Petition No: 121/12 Page No. 9/24 the accident and he had not discussed the above said case with the IO nor examined any prosecution witness to discuss the matter with any witness of the prosecution. The R2W2 stated that he discussed the matter with driver/ owner of the vehicle on 26.12.2013 when the vehicle was brought by him for inspection. The R2W2 stated that he was not present at the time of accident, preparation of the MLC and at the time of postmortem of the deceased. The R2W2 volunteered that his forensic examination was based on his own physical examination of the vehicle, simulations made by him and the documents, inputs consisting of medico legal records, statements, deposition before court by some witnesses and documents pertaining to police investigations. The R2W2 stated that he had no knowledge if the charge sheet had been filed against the driver of the offending vehicle. The R2W2 stated that he had not advised the insurance company to file petition for quashing of FIR. The R2W2 stated that during simulations he had not used any dummy of bull or any dummy of any human body but he had used himself as a dummy person for examining the vehicle during the simulations experiment.
13. The R2W3, Dr. Rajeev Sharma, Sr. Forensic Specialist and Toxicologist stated that he was member of Forensic Expert team engaged by Tata AIG General Insurance company for an independent Forensic report. The R2W3 stated that he had prepared his report on Forensic Medico Legal Aspect, Ex.R2W1/A giving his opinion that the type, nature and manner of injuries were suggestive of injuries, both external and internal, antemortem in nature produced as a result of blunt force impact over the different body parts and there was higher possibility of such aforesaid injuries having been caused due to strike on body parts by a raging bull elaborated in deposition of witness and medical documents of Fortis Hospital and the injuries on the M.A.C. Petition No: 121/12 Page No. 10/24 body were not possible by vehicular impact in the manner as alleged. During cross-examination, the R2W3 stated that he had charged Rs. 11000/- as professional fee for giving his opinion and for appearance and he had prepared report on the basis of documents supplied by the insurance company. The R2W2 stated that there was no mention of injuries suffered by the deceased because of hitting by the bull / horn. The R2W3 stated that blunt force impact injury was possible in road side accident. The R2W3 also stated that the injuries discussed by him in his report could be present depending upon the severity and degree of impact and those specific types of injuries as mentioned in medical records and postmortem report were less likely to be produced in vehicular accident. The R2W3 stated that he had examined the injured persons hit by bull and had also conducted postmortem on the body of the deceased due to the injuries by hitting by bulls and he had dealt 25-50 such cases but he did not remember the name of any such person and he did not have any such record. The R2W3 stated that he had dealt with such cases at the time of his service with Lady Harding hospital and the record must be in the hospital.
14. So far as the involvement of vehicle no. UP-14BM-1622 and negligence of the respondent no. 1 is concerned, the petitioner examined Sh. Yadvesh, the eye witness of the case and has relied upon the criminal case record. On the other hand, respondent no. 1 examined himself as R1W1 and the insurance company has examined three witnesses Dr. Abhinandan Borah, Fortis Hospital, Dr. S.R. Singh, Forensic Science Consultant and Dr. Rajeev Sharma, Sr. Forensic Specialist and Toxicologist.
15. The PW-3, eye witness of the accident has clearly deposed that deceased was crossing the road when he was hit by a bull and he fell in the M.A.C. Petition No: 121/12 Page No. 11/24 middle of the road and in the meantime a Nano car bearing no. UP-14BM- 1622, driven rashly and negligently came and hit Sh. Santosh Chaurasia, the deceased. The PCR Van came at the spot and removed the injured to the hospital. The PW-3 has very clearly stated that the deceased after being hit by a bull, was thrown in the air for about 3-4 feet and he saw that deceased was lying on the road with face upside and he had seen the car after it had hit the deceased and left front wheel of the car had struck against right shoulder of the deceased and the head of the deceased was trapped between left front wheel and the bumper. The testimony of PW-3 is consistent and reliable and nothing contrary could be elicited during the cross-examination of PW-3. The postmortem report support the testimony of the PW-3 as it clearly records that deceased had suffered multiple abrasions on the front of neck, right shoulder, front of upper chest and front of hand and knee joint of various sizes and shapes. It is also recorded in postmortem report that deceased was having huge heamotoma on the left side and back of the brain. The version of the PW-3 is also corroborated by the criminal case record. The MLC is recorded at 7.45 p.m. and the FIR was lodged at 9-10 p.m. on the statement of Sh. Yadvesh, PW-3 and the accident occurred at 7.30 p.m. on 10.04.2012. The mechanical inspection report shows that there was dent on the front bumper and bonnet of the car no. UP-14BM-1622. There is no unnecessary delay in the lodging of the FIR and there does not appear any reason for the PW-3 to involve the vehicle no. UP-14BM-1622 in the accident except that the vehicle had caused the accident and further it has also come on record that police had also reached at the place of accident and had seized the vehicle. There is also no apparent reason for police to involve the said vehicle in the accident unless the vehicle is actually involved in the accident. The charge sheet has already been filed against the respondent no. 1. The site-plan also clearly shows the place of accident, the place where two bulls were fighting M.A.C. Petition No: 121/12 Page No. 12/24 and the place where the deceased was going with his friends.
16. On the other hand the testimony of Sh. Shobit Aggarwal, R1W1 does not inspire confidence particularly for the reason that the respondent no. 1 has admitted that an FIR was registered against him, he was present at the place of accident, charge sheet has also been filed against him but he had not lodged any representation against the FIR or the charge sheet and regarding his false involvement in the present case, to any higher authority. The R1W1 stated that his vehicle was not involved in the accident and the dent on the bonnet was due to the car being hit by bulls. The testimony of R1W1 is not supported by any other documentary evidence. The testimony of R1W1 is self serving and cannot be relied upon.
17. The testimony of insurance company's witnesses is based on the documents provided to them by the insurance company. None of the witness i.e. R2W2 Dr. S.R. Singh and R2W3, Dr. Rajeev Sharma had witnessed the accident. Dr. S.R. Singh has given his detailed expert opinion report opining that car was in a stationary mode when it was hit by a heavy object like running bull and testimony of PW-3 did not find any scientific support to damage to the car. It is noted that the report of the R2W3 is based on the premise that bull had hit the car and the report begins with the facts that death of a person was caused who was hit by bull during two bulls fighting on road on 10.04.2012. The report has tried to show that the dent on the bonnet of the car cannot be because of the car hitting the deceased. The R2W3 has stated to have done simulations and opined that if a person is lying on the road with face upside, he would not hit the bonnet of the car. It also need to be noted that the R2W3 had examined the car after about one and half year of the accident. It cannot be said that car would have remained in the same M.A.C. Petition No: 121/12 Page No. 13/24 position during the aforesaid one and half year. The mechanical inspection of the car was got done by the police immediately after the accident and the same is reliable. So far as the car hitting shoulder of the deceased is concerned there may not be much damage to the bumper of the car. There is nothing on record to show that the two photographs produced by respondent no. 1, on basis of which the R2W3 has given opinion, were taken at the time of accident. Hence for this reason also no reliance can be placed on the testimony of R2W3. The PW-3 had witnessed the accident and his testimony is more reliable.
18. As far as the testimony of Dr. Rajeev Sharma, R2W3 is concerned, he has opined that the type, nature and manner of injuries were suggestive of injuries, both external and internal, antemortem in nature produced as a result of blunt force impact over the different body parts and there was higher possibility of such aforesaid injuries having been caused due to strike on body parts by a raging bull elaborated in deposition of witness and medical documents of Fortis Hospital and the injuries on the body were not possible by vehicular impact in the manner as alleged. It appears that the doctor has given his opinion with the assumption that deceased was hit by bull and not by the car, otherwise the doctor would have opined that the deceased was hit by some heavy blunt object. Further during cross-examination, the R2W3 had clearly stated that the blunt force impact injury was possible in road traffic accident. The R2W3 when asked if such kind of injuries could be possible in RTA, he stated that those type of injuries could be present depending upon the severity and degree of impact and types of injuries as mentioned in medical record and postmortem report were less likely to be produced in vehicular accident. The R2W3 stated that he had conducted postmortem on the bodies of the persons died due to injuries hit by bulls and he had dealt M.A.C. Petition No: 121/12 Page No. 14/24 about 25-50 such cases. The R2W3 failed to produce any record to substantiate the above said version. Further the figure as stated by R2W3 does not appear to be realistic, that one doctor of a hospital would have dealt with 25-50 cases of persons being hit by bulls. The testimony of R2W3 is contrary to the MLC which records "history of RTA, hit by unknown vehicle after being pushed by bullock". The MLC was recorded on 10.04.2012 at 7.45 p.m. and there does not appear any reason for giving wrong history in the MLC which was recorded after 15 minutes of the accident. The postmortem report also mentions it as a case of road traffic accident. The R2W3 admitted that the injuries suffered by deceased could be because of severe blunt force impact. For the aforesaid reasons the testimony of R2W3 is also not reliable and also does not help much the case of the insurance company. It also needs to be noted that the facts stated by witnesses of insurance company are beyond pleadings as the insurance company has not stated the above said facts in the written statement.
19. Considering the testimonies of the witnesses and the FIR, mechanical inspection report, charge sheet and post mortem report of the deceased, it is clear that vehicle no. UP-14BM-1622 was involved in the accident. It is also clear from the record that the deceased was firstly hit by the bull. The facts on record clearly suggest that the accident was sudden as the bulls were fighting and one of the bulls hit the deceased and the deceased came in front of the car and was hit by the car. The negligence on the part of the driver of the car no. UP-14BM-1622 is also apparent. If the car had been at a normal speed, the driver of the vehicle could have controlled the same before hitting the deceased. No doubt the falling of the deceased in front of the car no. UP- 14BM-1622 was sudden but it does not absolve the respondent no. 1 for his negligence. The driver of the vehicles need to be careful regarding sudden M.A.C. Petition No: 121/12 Page No. 15/24 unanticipated objects / persons coming in front of the vehicles. It is not unheard that stray animals or children while crossing the road come in front of the vehicles hence greater degree of carefulness is warranted from the drivers. The driver should driver the vehicles at such speed so that in such kind of situation accident could be avoided. In the present case, the respondent no. 1 was driving his car at high speed otherwise the car could have been controlled before hitting the deceased and accident could have been avoided. Therefore under the facts and circumstances, I hold that the driver of the vehicle no. UP-14BM-1622 was negligent in the said accident.
20. The FIR, charge-sheet, site plan and the testimonies of the PW-1 and 2, taken together fully establish the death of the deceased caused by the injuries sustained by him in a road accident involving vehicle bearing registration No. UP-14BM-1622. There is nothing on record to dispel the inference that deceased Sh. Santosh Chaursia, died on account of injuries sustained by him in a road accident which occurred on 10.04.2012 involving the vehicle bearing No. UP-14BM-1622 being driven by its driver in a rash and negligent manner. The issue No. 1 is decided in favour of petitioners and against the respondents.
ISSUE NO. 221. The PW-1, stated that deceased was her husband and was 36 years of age as on the date of accident and had left behind his wife Shweta Bhagat, son, Viraaj Chourasia, aged 1 ½ years, father Sh. Yogender Prasad Chourasia and mother Smt. Lalita Devi. The PW-1 stated that deceased was MBA from Bentely University, USA and had worked in India Today Groups and other newspapers as Sr. Manager and he also worked in USA for a M.A.C. Petition No: 121/12 Page No. 16/24 period of two years as Business Analyst and joined Amar Ujala Publications on 16.01.2012 and was working as General Manager and was getting Rs. 11,36,014/- per annum as remuneration. The PW-1 exhibited copy of entire educational documents as Ex. PW-1/1(colly), promotion letter dated 26 th November'2007 as Ex. PW-1/2, copy of letter dated 23 rd April'2007 as Ex. PW-1/3, copy of letter dated 20.04.2006 as Ex. PW-1/4, copy of letter dated 4th November'2003 as Ex. PW-1/5, copy of letter dated 11 th November'2002 as Ex. PW-1/6, copy of appointment letter as Ex. PW-1/7, copy of letter dated 11th June'2003 as Ex. PW-1/8, copy of letter dated 5 th September'2003 as Ex. PW-1/9, copies of letter dated 14 th September'2000, 28th September'2000, 30th March'2001 and 25th October'2004 as Ex. PW-1/10 (colly), letter dated 1 st May'2001 as Ex. PW-1/11, copy of certificate dated 17 th December'2007 as Ex. PW-1/12, copy of statement of account 2007-2008 as Ex. PW-1/13, copy of acknowledgment of income tax return for the assessment year 2005-2006, 2006-2007, 2007-2008 as Ex. PW-1/14 (colly), copy of marriage certificate as Ex. PW-1/15, copy of certificate dated 14 th May'2011 as Ex. PW-1/16, copy of birth certificate of petitioner No. 2 as Ex. PW-1/17, copy of PAN card as Ex. PW-1/18, certified copies of criminal case record as Ex. PW-1/19(colly), copy of letter of intent dated 8 th December'2011 as Ex. PW-1/20, certificate dated 25th October'2011 as Ex. PW-1/21, copy of appointment letter dated 1 st June'2010 as Ex. PW-1/22 and rent receipts as Ex. PW-1/23(colly). The PW-1 marked the copy of GMAT test as mark A, copy of internet based test examine score report as mark B,copy of visa of Master Viraj as mark C and copy of appointment letter as mark D(colly). During cross-examination, the PW-1 stated that her mother-in-law was a house wife and she could not tell the income of her father-in-law. The PW-1 stated that sometimes she was residing with her parents and sometimes with her parents-in-law and she had not remarried. The PW-1 stated that she was a house wife. The PW-1 stated M.A.C. Petition No: 121/12 Page No. 17/24 that deceased was maintaining bank account but she had not filed any record with regard to the same. The PW-1 stated that she had got amount of Rs. 55 lacs to 56 lacs through the office of the deceased but she did not know the heads under which the said amount was given.
22. The PW-2, Sh. B.M. Singh, Manager (HR), Amar Ujala Publications Ltd. deposed that Sh. Santosh Kumar Chourasia was employed with Amar Ujala Publications Ltd. as a General Managar, Marketing (Magazines). The PW-2 exhibited the appointment letter as Ex.PW-2/1, nomination and declaration as Ex.PW-2/2, gratuity nomination form as Ex.PW-2/3 and form 16 as Ex.PW-2/4 and marked the salary slip as Mark A. During cross- examination, the PW-2 stated that after the death of the deceased, their office had paid the amount towards gratuity, amount towards mediclaim and amount towards group accidental policy to the wife of deceased but he could not tell about the exact amount paid by the company. The PW-2 stated that the deceased could be removed from the services by giving one month notice and the deceased could not have claimed any increment in the salary as a matter of right. The PW-1 stated that salary of the deceased was transferred directly in his bank account. The PW-1 stated that the age of retirement was 58 years and as per their record wife of the deceased was the nominee of the deceased.
23. The PW-2, Sh.B.M. Singh was re-examined on 10.09.2014. The PW-2 stated that all the employees of their organization were covered under Group Term Life Insurance policy for all types of deaths such as death caused by accident, illness and death caused by some other reason. The PW-2 stated that recently one Sh. Sanjeev Bhatia had died because of heart attack and his nominees got Rs. 50 lacs under the same policy issued by IDBI. The PW-
M.A.C. Petition No: 121/12 Page No. 18/242 exhibited the attested copy of letter dt. 01.10.2012 as Ex.PW-2/X, photocopies of endorsement dt. 02.04.2014 of policy no. 0213197653 along with annexure I as Ex.PW-2/Y. The PW-2 stated that after endorsement the amount of premium towards Group Terms Life Insurance was Rs. 5250/- per annum in respect of the deceased and the same was to be deducted from the salary of Sh. Santosh but due to death of Sh. Santosh Chaurasia the company had waived of all these dues. The PW-2 exhibited the attested copy of the same as Ex.PW-2/Z. The PW-2 stated that deceased was also covered under Accidental policy and got Rs. 7 lacs on this account and the accidental policy covered all types of accidents. The PW-2 exhibited the attested copy of e-mail dt. 30.01.2013 regarding the accidental policy as Ex.PW-2/X. The PW- 2 stated during cross-examination that after the death of the deceased, the petitioner Smt. Shweta Bhagat was the nominee of the deceased and had got Rs. 50 lacs under Group Term Life Insurance Policy from Bajaj Allianze Insurance Company, Rs. 1,32,000/- towards employee deposit link insurance scheme i.e. under PF Act paid by Bajaj Allianze Insurance Co. Ltd., Rs. 4,68,099/- towards gratuity claim paid by employer, Rs. 7 lacs paid under Group Accidental Policy by New India Assurance Co. Ltd.
24. I have gone through the material on record. The appointment letter dt. 16.01.2012, Ex.PW-2/1 shows that deceased was employed with Amar Ujjala Publications Ltd. The salary certificate annexure of Ex.PW-2/1 shows that deceased was getting Rs. 11,36,014/- per annum. The amount towards transport allowance Rs. 9600/- and reimbursement amount of Rs. 2,11,656/-, being not for the benefit for the family, are liable to be deducted from the income of the deceased. After such deductions, the net income of the deceased comes to Rs. 9,14,758/- per annum.
M.A.C. Petition No: 121/12 Page No. 19/2425. In the present case as noted above, the annual income of the deceased at the time of death is taken to be Rs. 9,14,758/- per month. After deduction of income tax of Rs. 1,16,427/-, the net income of the deceased comes to Rs. 7,98,331/- per annum.
26. In the judgment of "Rajesh & Others Vs Rajbir Singh & Others" 2013 (6) Scale in C.A. No. 3860/2013 (Arising out of SLPC) No. 24825/2010) Hon'ble Supreme Court observed as under:-
"11 Since, the Court in Santosh Devi's case (Supra) actually intended to follow the principle in the case of salaried persons as laid in Sarla Verma's case (supra) and to make it applicable also to the self-employed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30% always; it will also have a reference to the age. In other words, in the case of self-employed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an addition of 50% to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any. Addition should be 30% in case the deceased was in the age group of 40 to 50 years".
"12 In Sarla Verma's case (supra), it ,has been stated that in the case of those above 50 years, there shall be no addition. Having regard to the fact that in the case of those self- employed or on fixed wages, where there is normally no age of superannuation, we are of the view that it will only be just and equitable to provide an addition of 15% in the case where the victim is between the age group of 50 to 60 years so as to make the compensation just, equitable, fair and reasonable. There shall normally be no addition thereafter."
"20 .......Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are of the view that it would only be just and reasonable that the courts award at least rupees one lakh for loss of consortium."
"21 .........There are many other expenses in connection with funeral and, if the deceased is follower of any particular religion, there are several religious practices and conventions pursuant to death in a family. All those are quite expensive. Therefore, we are of the view that it will be just, fair and equitable, under the head of 'Funeral Expenses' , in the absence of evidence to the contrary for higher expenses, to award at least an amount of Rs. 25,000/-."M.A.C. Petition No: 121/12 Page No. 20/24
27. Hon'ble Delhi High Court, in the judgment titled, "ICICI Lombard General Insurance Co. ltd. vs Angrej Singh and ors.", MAC App. No. 846/2011 decided on 30.09.2013, has taken the same view as taken in aforesaid judgment.
28. Following the aforesaid judgments, 50% of the income of the deceased is liable to be added towards future prospects. After addition of 50% of the amount, the annual income of the deceased comes to Rs. 11,97,496/- (Rs. 7,98,331/- + Rs.3,99,165/-) p.a.
29. The petitioners failed to establish that the petitioner no. 3, father of the deceased was dependent on the income of the deceased. Interest of justice in the present case would be met if 1/3rd i.e. Rs. 3,99,165/- (as there are three dependents i.e. wife, minor son and mother of the deceased) is deducted as the personal and living expenses of the deceased. After such deduction the contribution to the family (dependants) is determined as Rs. 7,98,331/- per annum. The multiplier applicable would be 16 having regard to the age of the deceased i.e. 35 years (as mentioned in school leaving certificate, part of Ex.PW-1/1) at the time of the death. Therefore, the total loss on dependency would be Rs. 1,27,73,296/- (Rs. 7,98,331 x 16).
30. After adding sum of Rs. 1,00,000/- towards the head of love and affection, Rs. 10,000/- towards loss of estate and Rs. 25,000/- towards funeral expenses and Rs. 1,00,000/- towards loss of consortium, the compensation will be Rs. 1,30,08,296/-.
LIABILITY
31. Ld. counsel for insurance company contended that a sum of Rs. 56 M.A.C. Petition No: 121/12 Page No. 21/24 lacs have already been given to the petitioner towards accidental policy therefore no further amount is liable to be granted.
32. In the present matter the wife of the deceased received Rs. 50 lacs under Group Term Life Insurance Policy from Bajaj Allianze Insurance Company, Rs. 1,32,000/- towards employee deposit link insurance scheme i.e. under PF Act paid by Bajaj Allianze Insurance Co. Ltd., Rs. 4,68,099/- towards gratuity claim paid by employer, Rs. 7 lacs paid under Group Accidental Policy by New India Assurance Co. Ltd., Rs. 15,00,000/- from the employer of the deceased towards group insurance policy. The PW-2 has deposed that the deceased was covered under Group Term Life Insurance policy and Rs. 50 lacs were paid to the claimants by Bajaj Allianze Insurance Company. From the testimony of PW-2 it is apparent that the employees of the said company were covered under Group insurance policy for accidental death. The PW-2 has stated that one of employee had died because of heart attack and was paid the amount towards Group Insurance policy for accidental death. It cannot be said that the said group insurance was taken only with regard to the death of the employee due to motor accident. The claimants got the said amount from the employer of the deceased because of the deceased being the employee of the said firm and having served the said company. In my opinion the said amount cannot be taken into consideration while granting compensation under The Motor Vehicles Act. In the judgment, "
Sushma Bhatnagar and others Vs. Lal Singh and others", III (2010) ACC 681, Hon'ble Delhi High Court observed as under:-
"The claim of compensation under Motor Vehicles Act is independent of other benefits granted to the dependents of the deceased by employer of the deceased granted by employer would have been there even in case of natural death. The death of an employee may take place due to illness or due to any other reasons. The compensation granted under Motor Vehicles Act cannot be reduced because the M.A.C. Petition No: 121/12 Page No. 22/24 dependents got some amount from the employer of the deceased."
The above said judgment clearly covers the issue before this court. The judgment cited by counsel for insurance company is not applicable under the facts and circumstances of the present case.
33. The insurance company is liable to pay compensation of Rs. 1,30,08,296/-, to the petitioners.
34. There being no evidence of violation of the policy condition and there being no evidence to support the permitted defence U/s. 149(2) of the M.V. Act, I am unable to grant the recovery rights. Therefore, insurance company shall make good the compensation in terms of the accepted policy.
RELIEF
35. The accident occurred on 10.04.2012, therefore following judgment Smt. Bishekha Devi & Anr. Vs. Mohd. Afsar & Ors. MAC. APP. 1087/2012 passed by Hon'ble Delhi High Court, I direct that the respondent No. 2 shall also pay interest @ 9% p.a. on the total compensation amount from the date of petition till realization to the petitioners. Issue no. 3 is answered accordingly.
36. For the aforesaid reasons, I pass the following award :-
AWARD
37. In view of the above the petition is allowed. The respondent No. 2 is liable to pay the compensation of Rs. 1,30,08,296/-(inclusive of interim compensation). Hence the respondent No. 2 is directed to deposit a compensation of Rs. 1,30,08,296/-(inclusive of interim compensation) within one month. The respondent No. 2 shall also pay interest @ 9% p.a. (except M.A.C. Petition No: 121/12 Page No. 23/24 for the period not specifically allowed) on the total compensation amount from the date of petition till realization to the petitioner. The claimants are entitled to the compensation in the following proportions along with corresponding interest :-
(a) Petitioner No. 1 shall get Rs. 52,03,318/- along with corresponding interest.
(b)Petitioner No. 2 shall get Rs. 32,52,074/- along with corresponding interest.
(c) Petitioner No. 3 shall get Rs. 13,00,830/- along with corresponding interest.
(d) Petitioner No. 4 shall get Rs. 32,52,074/- along with corresponding interest.
38. The award amount along with interest be deposited by insurance company, within 30 days in the court itself.
39. The insurance company is directed to give notice regarding the deposit of the amount to the petitioners at the address mentioned in the memo of parties and will also sent copy of notice to the counsel for petitioners at the address mentioned in the vakalatnama.
40. List for reporting compliance on 20.03.2015. The insurance company is directed to place on record the proof of deposit of the award amount, notice of the deposit and calculation of interest on the next date of hearing.
41. The insurance company shall deposit the award amount with interest up to the date of notice of deposit to the claimants with copy to their counsel. A copy of this order be given dasti to concerned parties.
Announced in the open ( Arvind Kumar )
court on 20.01.2015 Presiding Officer: MACT:
Karkardooma Court/Shahdara/Delhi.
M.A.C. Petition No: 121/12 Page No. 24/24