Delhi District Court
Smt. Lajjawati W/O Late Sh. Ranjeet ... vs Shri Ram Pal S/O Shri Ramji Lal on 18 September, 2012
IN THE COURT OF SH PREM KUMAR BARTHWAL,
PO:MACT(SE01), SAKET COURTS, NEW DELHI
SUIT No. : 221/09
UNIQUE CASE ID: 02403C0129262009
1. Smt. Lajjawati W/o Late Sh. Ranjeet Singh
2. Shri Ravi S/o Late Shri Ranjeet Singh
Both residents of H. No. G260, Sarita Vihar,
New Delhi.
3. Smt. Sunita W/o Shri Vijay Kumar
R/o H. No. 95A, BlockE4, LIG Glats,
Sector82, Noida, UP.
4. Smt. Manju W/o Shri Sanjeev Chander,
R/o H. No. 28A, PhaseV, Kendriya Vihar,
Sector82, Noida, UP.
5. Smt. Anju W/o Shri Rajeev Kumar,
R/o H. No. 13/A, Janta Flats, Jasola,
New Delhi.
.......PETITIONERS
VERSUS
1. Shri Ram Pal S/o Shri Ramji Lal,
R/o Jasa Pavershra, Tehsil Maant,
District Mathura, UP (Driver)
2. Shri Ram Niwas S/o Shri Ganga Prasad,
R/o B4, Tejpur Road, Badarpur Extension,
New Delhi (Owner)
Suit No. 221/09 Page 1 of 16
3. M/s IFFCO TOKIO General Insurance Company,
Unit No. 5263, Mezzanine Floor, Ansals Fortune Arcade,
Sector18, Noida, UP (Insurer)
.......RESPONDENTS
Date of filing of claim petition: 28.08.2009 Date on which the Award/judgment reserved: 14.09.2012 Date on which the Award/judgment pronounced: 18.09.2012 A W A R D:
1. This petition under Section 166 of the Motor Vehicle Act, 1988 was filed by the petitioners claiming compensation of Rs.
50,00,000/ for the fatal injuries sustained by the deceased, Shri Ranjeet Singh in a road vehicular accident which took place on 08.08.2008 near Gate No. 2, Sarita Vihar, New Delhi involving motorcycle bearing registration no. DL3SBE3452 driven by respondent no. 1, Shri Ram Pal S/o Shri Ramji Lal. The petitioner no. 1 is the widow, petitioner no. 2 is the son and petitioner nos. 3 to 5 are the daughters of the deceased, Shri Ranjeet Singh.
2. Summons were issued to the respondents no. 1, 2 and 3 who are respectively the driver, owner and insurer of the alleged offending vehicle. The respondents no. 1 and 2 have filed their joint written statement denying the claim of the petitioners and Suit No. 221/09 Page 2 of 16 contending that there was no rashness and negligence on part of respondent no. 1 in this accident. The respondent No. 3 i.e. M/s IFFCO TOKIO General insurance Company has also filed its written statement through its counsel denying the claim of the petitioners but admitting the fact that the vehicle bearing registration no. DL3S BE3452 (Hero Honda) stood insured with it vide insurance policy No. 38601975 in the name of Shri Ram Niwas valid for the period w.e.f. 28.03.2008 to 27.03.2009.
3. From the pleadings of the parties, following issues were framed for consideration on 12.11.2009 :
1. Whether the deceased suffered fatal injuries in an accident that took place on 08.08.2008 at about 7.15 AM involving motorcycle no. DL3SBE3452 driven by respondent no. 1, owned by respondent no. 2 and insured with respondent no. 3?
2. Whether the petitioners are entitled for compensation? If so, to what amount and from whom?
3. Relief
4. The petitioners in support of their case have got examined three witnesses i.e. Mrs. Lajjawati, wife of the deceased, Shri Ranjeet Singh has been got examined as PW1 and Ms. Suit No. 221/09 Page 3 of 16 Naushaba Kidwai W/o Shri I R Kidwai has been got examined as PW2 and Shri K.R. Patel, Employee Relation Officer, M/s Indian Oil Corporation Ltd. has been got examined as PW3. The learned counsel for the petitioners had closed petitioner's evidence vide his separate statement recorded on 07.09.2012. The respondent no. 1, Sh Ram Pal has got himself examined as R1W1. The Ld counsel for the respondents no. 1 and 2 has closed evidence on behalf of the said respondents vide his statement recorded on 07.09.2012.
5. I have heard the learned counsels for the parties and considered the testimonies of the witnesses and the documents filed on record. My findings to the issues are as under: ISSUE NO. 1:
6. Since the present petition is under Section 166 of M V Act, it was the bounden duty of the petitioners to prove that the respondent No. 1 was rash and negligent in driving the vehicle at the time of accident. To prove this issue, the learned counsel for the petitioners has relied upon the statements of PW1, Smt Lajjawati, widow of the deceased, Sh Ranjeet Singh and PW2, Ms. Naushaba Kidwai. Smt Lajjawati, PW1 has deposed that on 08.08.2008 at about 07.15 AM her husband was going to Mother Dairy for getting milk and the respondent no. 1 driving his Suit No. 221/09 Page 4 of 16 motorcycle bearing no. DL3SBE3452 in a negligent manner dashed against her husband near Gate No. 2 of their residence block at Sarita Vihar and her husband sustained serious injuries and became unconscious and was admitted to Apollo Hospital, New Delhi where he ultimately died at 03.00 AM on 09.08.2008 because of fatal injuries to his brain. PW2, Ms. Naushaba Kidwai has also deposed that on 08.08.2008 at about 07.00 a.m., she was going to Crescent School, Maujpur, Delhi where she is working as Head Mistress and was waiting in her car for her colleague at Gate No. 2 of G8, Sarita vihar, New Delhi and she saw a motorcyclist striking against a person who was crossing the road. The said person as well as the motorcyclist had fallen down on the road and that the said motorcycle was being driven by R1. The said witness had correctly identified the R1 as the driver of the motorcycle at the time of accident. PW2, Ms Naushaba Kidwai has also stated that it was raining at the time of accident and probably the motorcyclist had applied the brakes and he skidded and collided with the person crossing the road. On crossexamination by R1 and R2 this witness has stated that she had witnessed the accident and that the motorcyclist had hit the person in the middle of the road and that police had also recorded her statement. On crossexamination by Suit No. 221/09 Page 5 of 16 the counsel for R3/Insurance Company this witness clarified that she came to know about the death of the injured on the next day and that the petitioners or the deceased was not known to her prior to the date of accident. The Ld counsel for the petitioners has also placed reliance on the certified copy of final report U/s 173 Cr.P.C., Ex.PW1/15 (Colly) filed by the police in respect of this accident (FIR No. 421/08, PS Sarita Vihar) against the R1, driver of the offending vehicle for his trial for offences U/s 279/304A IPC. The certified copies of Site Plan, Ex.PW1/4; FIR No. 421/08 PS Sarita Vihar, Ex.PW1/8; Arrest Memo of R1/driver, Ex.PW1/14; Seizure Memo of the offending vehicle; Superdaginama and Mechanical Inspection Report of the offending vehicle have also been filed on record. The respondent no. 1, Shri Rampal S/o Shri Ramji Lal has got himself examined as R1W1 and has deposed that on 08.08.2008, he was riding motorcycle bearing registration no. DL3SBE3452 and it was raining and the victim was crossing the road near DBlock, Sarita Vihar, New Delhi and he had applied the brakes of his motorcycle but his motorcycle was hit by a bus coming from behind and he had fallen down on the road and became unconscious. Thereafter one lady named Ms. Naushaba Kidwai asked for his name and telephone number and she had called his Suit No. 221/09 Page 6 of 16 brother, Shri Hansraj who reached the place of accident and he had taken him to a hospital at Mathura, UP where he remained hospitalized for about 18/19 days. However, during his cross examination on 07.09.2012 by the Ld counsel for the petitioners, R1W1, Sh Rampal has admitted that he was apprehended by the police of PS Sarita Vihar in case FIR No. 421/08 U/s 279/304A IPC and that he was arrested in the said case on 20.08.2008. R1W1, Sh Rampal has further admitted that he is facing trial in the said case which is pending in the Court of Shri Deepak Sehrawat, Ld MM (SE), Saket Courts, New Delhi and that the motorcycle bearing registration no DL3SBE3452 was got released on superdari by R2, Shri Ram Niwas. The statement of PW1 and PW2 stands corroborated by the certified copy of final report U/s 173 Cr.P.C., Ex.PW1/15 (Colly) filed by the police in respect of this accident (FIR No. 421/08, PS Sarita Vihar) against the R1, driver of the offending vehicle for his trial for offences U/s 279/304A IPC. The certified copies of Site Plan, Ex.PW1/4; FIR No. 421/08 PS Sarita Vihar, Ex.PW1/8; Arrest Memo of R1/driver, Ex.PW1/14; Seizure Memo of the offending vehicle; Superdaginama and Mechanical Inspection Report of the offending vehicle have also been filed on record. To determine the negligence of the driver of the offending Suit No. 221/09 Page 7 of 16 vehicle, I am being guided by the judgment of Hon'ble High Court in case titled in Basant Kaur & Ors. Vs. Chattar Pal Singh & Ors., 2003 ACJ 369 M.P. (DB) wherein it has been held that registration of a criminal case against the driver of the offending vehicle is enough to record the finding that the driver of offending vehicle is responsible for causing the accident. I am also being guided by the Judgment of Hon'ble High Court of Delhi in 2009 ACJ 287, National Insurance Company Limited Vs. Pushpa Rana wherein it was held that in case the petitioner files the certified copy of the criminal record or the criminal record showing the completion of the investigation by the police or the issuance of charge sheet under Section 279/304 A IPC or the certified copy of the FIR or in addition the recovery memo on the mechanical inspection report of the offending vehicle, these documents are sufficient proof to reach to the conclusion that the driver was negligent. It is also settled law that the term rashness and negligence has to be construed lightly while making a decision on a petition for claim for the same as compared to the word rashness and negligence as finds mention in the Indian Penal Code. This is because the chapter in the Motor Vehicle Act dealing with compensation is a benevolent legislation and not a penal one. Suit No. 221/09 Page 8 of 16
7. In view of the above discussions and the documents filed on record, it stands proved on record that the deceased, Shri Ranjeet Singh had sustained fatal injuries due to the rash and negligent driving of respondent No. 1 on 08.08.2008 while driving the offending vehicle bearing no. DL3SBE3452. Issue no. 1 is, therefore, decided in favour of the petitioners and against the respondents.
ISSUE NO. 2 (COMPENSATION):
8. According to the para 04 to 06 of the claim petition, the deceased was working with M/s Indian Oil Corporation Ltd and getting a monthly income of Rs.40,557.54/. In this regard, the Ld counsel for the petitioners has placed reliance on the statement of PW3, Shri K.R. Patel, Employee Relation Officer, M/s Indian Oil Corporation Ltd. who has deposed that as per their office record, Late Shri Ranjeet Singh son of Shri Sumarta Singh was employed as Sr. Office Attendant with M/s Indian Oil Corporation Ltd. since 26.09.1972 till 09.08.2008 and his last drawn salary i.e. for the month of July, 2008 was Rs.49,769.88/. The learned counsel for the R3/Insurance Company submitted that deceased's monthly salary cannot be taken to be that of Rs.49,769.88/ for calculating the compensation as the said salary was an enhanced/ revised Suit No. 221/09 Page 9 of 16 salary given after the death of deceased, Sh Ranjeet Singh while the deceased during his life time had received considerable less salary. However, I do not find any force in the contention of the Ld counsel for the R3/Insurance company that the revised salary should not be considered for assessment of loss of dependency. PW3, Shri K.R. Patel who in his crossexamination dated 23.08.2012 has given the break up of the monthly salary of the deceased and deposed that deceased's last revised salary consisted of Basic Pay of Rs.32,340/, Dearness Allowance of Rs. 2,975.28/, House Rent Allowance of Rs.9,702/, Special Computer Allowance of Rs.2,910.60/, Transport Subsidy of Rs.500/, Newspaper Reimbursement of Rs.80/, Tea Reimbursement of Rs. 150/, Superannuation Benefit Funds of Rs.30/, Washing Allowance of Rs.85/, Refreshment Reimbursement of Rs.538/ and Scooter Reimbursement of Rs.459/. The Hon'ble High Court of Delhi in its recent decision in case titled "Lalita Prashar and Anr Vs Ranjeet Singh Negi & Ors" MACA No. 523/11 decided on 17.07.2012 has held that it has to be borne in mind that the multinational companies normally give choice to an employee as to how he/she wants to take the package to give advantage of deduction under the Income Tax Act. This aspect of the compensation package being Suit No. 221/09 Page 10 of 16 offered by the multinational companies was highlighted by the Supreme Court in 'National Insurance Company Ltd Vs Indira Srivastava & Ors' 2008 (2) SCC 763. Para 10 of the report is extracted hereunder: "10. Section 168 of the Act uses the word "just compensation" which, in our opinion, should be assigned a broad meaning. We cannot, in determining the issue involved in the matter, lose sight of the fact that the private sector companies in place of introducing a pension scheme takes recourse to payment of contributory Provident Fund, gratuity and other perks to attract the people who are efficient and hard working. Different offers made to an officer by the employer, same may be either for the benefit of the employee himself or for the benefit of the entire family. If some facilities are being provided whereby the entire family stands to benefit, the same, in our opinion, must be held to be relevant for the purpose of computation of total income on the basis whereof the amount of compensation payable for the death of the kit and kin of the applicants is required to be determined.........."
9. In "Raj Rani Vs Oriental Insurance Company Ltd" (2009) 13 SCC 654; while relying on Indira Srivastava (supra), the Supreme Court reiterated that apart from dearness allowance other allowances payable for the benefit of the family, have to be Suit No. 221/09 Page 11 of 16 considered for the computation of the annual income. In "Pushpabai Purshottam Udeshi Vs Ranjit Ginning & Pressing Co. (P) Ltd" (1977) 2 SCC 745, it was held that dearness allowance, conveyance allowance and other allowances are to be treated part of the deceased's income. As per the Form 16 filed on record by the Ld counsel for the petitioners dated 30.05.2008, the deceased, Sh Ranjeet Singh had a gross salary of Rs.5,13,585/ during the assessment year 200809 and an amount of Rs.70,369/ was the tax deducted at source at salary. Accordingly, the net income of the deceased is taken to be Rs.4,43,216/ (Rs.5,13,585/ minus Rs. 70,369/) for the purpose of assessment of loss of dependency. It can very well be presumed in terms of the judgment of the Hon'ble Supreme Court of India in case titled "Sarla Verma Vs Delhi Transport Corporation" [2009 (6) Scale 129] that the deceased might have been spending onefourth (1/4) of Rs.4,43,216/ on his personal and living expenses as the deceased had left behind his widow, one son and three married daughters at the time of accident. Therefore, after deducting onefourth (1/4) towards personal expenses, the loss of dependency per month comes out to be (Rs. 4,43,216/ minus Rs.1,10,804/) = Rs.3,32,412/. As per the PAN Card, Ex.PW1/3, the date of birth of deceased, Shri Ranjeet Singh Suit No. 221/09 Page 12 of 16 was 15.09.1952. Thus, he was aged about 56 years at the time of the accident (08.08.2008). The appropriate multiplier applicable for the age group of 5660 is 09, as per Sarla Verma's judgment (Supra). Accordingly, the total loss of dependency comes out to be (Rs.3,32,412/ X 09) = Rs.29,91,708/ which is rounded off to Rs. 29,92,000/. I also award Rs.10,000/ towards funeral expenses, Rs. 25,000/ towards loss of love and affection, Rs.10,000/ towards loss of consortium and Rs.10,000/ towards loss of estate. In total, I hereby award a sum of Rs.30,47,000/ (Rs. Thirty Lac and Forty Seven Thousand Only) in favour of the petitioners and against the respondents. In view of the above discussions issue No. 2 is decided in favour of the petitioners and against the respondents. RELIEF:
10. I award a sum of Rs.30,47,000/ (Rs. Thirty Lac and Forty Seven Thousand Only) as compensation with interest at the rate of 7.5% per annum including interim award, if any, from the date of filing the petition i.e. 28.08.2009 till the notice under Order 21 Rule 1 CPC is given by the respondents (excluding interest for the period w.e.f. 12.11.2009 till 07.09.2012 in terms of the order dated 11.02.2011), in favour of the petitioners and against the Suit No. 221/09 Page 13 of 16 respondents on account of their liability being joint and several. Out of the awarded amount, petitioner no. 1 shall have a share of 60%, the petitioners no. 2 to 5 shall have a share of 10% each along with proportionate interest. Acting on the guidelines issued by Hon'ble Supreme Court of India G.M Kerala State Road Transport Corporation v/s S.Susamma Thomas (1994) 2 SCC 176 and in order to avoid the money being frittered away, 50% share of petitioner No. 1 shall be kept in FDR in a nationalized bank hereinafter named for a period of five years. No loan or advance shall be allowed against the said FDRs but the petitioner no. 1 is permitted to withdraw the amount of interest quarterly on the FDRs.
A PPORTIONMENT OF LIABILITY
11. The respondent No. 3, being the insurer of the offending vehicle at the time of accident, is jointly and severally liable with the other respondents who are the driver and owner of the offending vehicle. Accordingly, the respondent no. 3 i.e. M/s IFFCO TOKIO General Insurance Company Limited is directed to deposit the award amount within a period of 30 days. In case of any delay, it shall be liable to pay interest at a rate of 12% per annum for the period of delay.
Suit No. 221/09 Page 14 of 16
12. In terms of the directions passed by the Hon'ble High Court of Delhi in its latest judgment titled as "Amod Kumar Ray & Ors Vs Raj Kumar Chauhan & Ors" {CM(M) 649/2011 decided on 25.05.2011}, the Insurance Company shall deposit the award amount in the State Bank of India, District Courts Saket, New Delhi in the name of the petitioners in terms of the award and shall file the compliance report. It is made clear that at the time of the deposit of the award amount with the bank, the Insurance Company shall specifically mention the suit no., title of the case as well as date of decision with the name of court on the back side of the cheque. The insurance company shall also file a copy of the award attested by its own officer to the bank at the time of deposit of the amount with the bank.
13. The copy of this award be given to the insurance company as well as to the petitioners free of cost. The petitioners shall approach the State Bank of India, District Court Saket, New Delhi for opening the account.
14. The Manager of the Bank is directed to comply the award. The amount which is ordered to be kept in the FDRs should not be released untill the FDRs are matured.
Suit No. 221/09 Page 15 of 16
15. The petition stands allowed and disposed off. Accordingly, the enquiry file be consigned to Record Room after completion of necessary formalities.
Announced in the open (PREM KUMAR BARTHWAL)
Court on 18.09.2012 PO: MACT( SE01), NEW DELHI
Suit No. 221/09 Page 16 of 16