Delhi District Court
Shyam Lal S/O Late Sh. Kaidari Lal vs Jaspreet Singh S/O Sh. Ashok Kumar on 16 September, 2016
IN THE COURT OF SURESH KUMAR GUPTA
PRESIDING OFFICER - MOTOR ACCIDENT CLAIMS
TRIBUNAL, SHAHDARA, KKD, DELHI
Unique Case ID No. 02402C0128082013
DAR No. D-106/13
1. Shyam Lal S/o Late Sh. Kaidari Lal
2. Het Ram S/o Late Sh. Kaidari Lal
3. Kallo D/o Late Sh. Kaidari Lal
R/o 1210, Village Nai ka Nangla,
PS Sarbadi Gate, Hathras, U.P
........Petitioners
Versus
1. Jaspreet Singh S/o Sh. Ashok Kumar
R/o 15/20, Kastoorba Nagar,
Shahdara, Delhi ....(Driver)
2. Sh. Ashok Kumar S/o Late Om Prakash
R/o 15/20, Kastoorba Nagar,
Shahdara, Delhi ....(Owner)
3. ICICI Lombard General Insurance Co. Ltd.
315, 3rd Floor, Aggarwal City Mall, Pitampura, Delhi
.........Respondents
Date of institution : 25.04.2013
Date of arguments : 31.08.2016
Date of judgment : 16.09.2016
DAR No. D-106/13 Page No. 1/17
JUDGMENT
1. SHO, PS, GTB Enclave, Delhi has filed the detailed accident report. The facts are like this. Shehjad gave his statement to the police that he is selling chicken in front of Metro Pillar no. 25, under flyover Shahdara. On 15.03.2013 at 9.30 a.m he was taking tea in front of his shop and in the meantime one scooty bearing no. DL-7SBG-4584 being driven by respondent no. 1 came from M.S Park Metro Station side in a high speed and in a rash and negligent manner and hit against an old person, crossing the road, who fell down and sustained injuries. He apprehended the scooty driver. HC Kishor Kumar reached on the spot. He handed over the scooty and its driver to HC. He removed the injured to GTB Hospital. The accident has taken place due to the rash and negligent driver of scooty driver. His statement was recorded. DD no. 17A dt. 15.03.2013 PS, GTB Enclave was registered against respondent no. 1. The injured has expired. Postmortem on the body of deceased was conducted. Usual investigation was carried out. Detailed accident report was filed which is treated as petition.
2. The respondents no. 1 and 2 have filed the joint reply to the effect that deceased was a beggar who himself came in front of the scooty for begging. The accident has taken place due to the negligence of the deceased. The identity of the deceased has not been established as no proof is filed by the petitioners with DAR No. D-106/13 Page No. 2/17 respect to their relationship with the deceased. The deceased was known as Om Prakash who has been residing with one Bubbli for the last 10 years. The address given by the petitioners in the Aadhar Card is different from the address given in the final report of the police.
3. The respondent no. 3 has filed the written statement to the effect that the insurance company is entitled for all defences available u/s 147, 149 and 170 MV Act and section 64 VB of Insurance Act. The vehicle in question duly insured with the insurance company vide policy bearing no.
3005/64372991/01/000 valid from 21.04.2012 till 20.04.2013. The accident has taken place due to the negligence of the deceased.
4. From the pleading of the parties following issues are framed on 19.08.2013:-
1. Whether the deceased Sh. Kedari Lal suffered fatal injuries in the accident occurred on 15.03.2013 due to rash and negligent driving of vehicle no. DL-7SBG- 4584 being driven by its driver? OPP
2. Whether the petitioners are entitled for any compensation, if so, to what amount and from whom? OPP.
3. Relief.
5. Petitioners have examined three witnesses whereas DAR No. D-106/13 Page No. 3/17 respondents no. 1 and 3 have examined one witness each. I have heard Ld. Counsel for the parties and perused the record. My issuewise findings are as under: -
ISSUE NO. 16. The petitioners have examined three witnesses. PW-1 Sh.
Het Ram is son of the deceased. He has filed his affidavit Ex.PW- 1/A wherein he has corroborated the version as set out in the beginning while briefing the facts. Ex.PW-1/6 is the detailed accident report. During cross-examination by respondent, he stated that he is not an eye witness.
7. PW-2 SI Md. Rajik stated that on 15.03.2013 he was posted at Police Station, GTB Enclave. On that day at 10.35 a.m. he received a DD no. 12A regarding an accident near MS Park Metro Station. He reached on the spot where HC Kishore Kumar along with Jaspreet Singh met him and told that injured has been sent to GTB Hospital. The scooty no. DL-7SBG-4584 was also found on the spot. He went to GTB Hospital where MLC of unknown person was obtained. The injured was kept under observation who was unfit for statement. Shehzad met him in the hospital who told that he has witnessed the accident. He has recorded the statement of Shehzad and came back to the place of accident along with Shehzad. Shehzad has identified Jaspreet Singh as driver of the scooty. Sh. Pankaj Tomar, Juvenile Welfare DAR No. D-106/13 Page No. 4/17 Officer was also called on the spot who prepared the report of Juvenile in Conflict with law and apprehension memo. The scooty was seized. The insurance policy, RC of scooty and age proof of Juvenile in Conflict with law were also taken into possession. The site plan was prepared. The scooty was taken to police station. Juvenile in conflict with law and his father were directed to appear before Juvenile Justice Board. The injured has expired in the hospital. Het Ram, allegedly the son of deceased, approached him and told that he is son of deceased. The dead body of deceased Kedari Lal was identified by Het Ram who even produced the documents regarding the identity of the deceased. Het Ram has called 4-5 persons from his native village whose statements were recorded by him. The dead body after postmortem were handed over to Het Ram. During cross- examination by respondents, he stated that one lady named Bubbli told that deceased was her husband. The deceased has been residing with Bubbli for the last 7-8 years but voluntarily stated that he cannot confirm whether deceased has been residing with Bubbli for the last 7-8 years. The deceased was beggar and this fact was investigated from the witnesses present at the place of accident. He did not record their statements.
8. R1W1 Sachin Jaiswal has filed his affidavit Ex.R1W1/A to the effect that he is running a factory of manufacturing copper at 520, Ganpati Compound, GT Road, Shahdara. There is a dustbin under flyover Shahdara i.e. in front of his factory. On 15.03.2013 DAR No. D-106/13 Page No. 5/17 at 9.30 a.m he was standing near Metro Pillar no. 25 and in the meantime one scooty no. DL-7SE-BG-4584 came from MS Park, Metro Station site in a careful manner. One person suddenly came in front of the scooty for the purpose of begging who fell down on the road. The accident has taken place due to the negligence of old person i.e. deceased. The deceased was known by the name of Om Prakash who was residing with Bubbli for the last more than ten years. During cross-examination by the petitioner, he stated that he is not a summoned witness. He has come at the request of the father of the Juvenile in conflict with law. The police had recorded his statement but he does not know what was recorded in the statement. He was standing in front of his factory at the time of accident. He does not know the number of scooty. He is not acquainted with the boy who has caused the accident. He knew the person who was injured in the accident. The deceased was residing in a Jhuggi situated across the road near his factory. It is admitted that police did not record his statement. The suggestion is denied that he has not witnessed the accident or he did not call PCR.
9. Ld. Counsel for petitioner submitted that deceased has met with an accident with the scooty being driven by respondent no. 1, who is juvenile in conflict with law, in a rash and negligent manner who fell down and sustained fatal injuries. Ld. Counsel for respondents no. 1 and 2 submitted that deceased was begging in the area who at once came in front of the scooty of the DAR No. D-106/13 Page No. 6/17 respondent no. 1 and fell down on the road. He submitted that deceased has sustained injuries by fall and not by way of an accident.
10. Heard and perused the record. It is clear from the record that PW-2 is IO of the case. R1W1 has allegedly witnessed the accident. The respondent no. 1 i.e. Juvenile in conflict with law was driving the scooty in question. At the place of accident i.e. in front of pillar no. 25, Near M.S. Park Metro Station, Delhi and deceased was also present at that place. The testimony of R1W1 shows that accident has taken place due to the negligence of deceased as he came in front of the scooty being driven by respondent no. 1. A close scrutiny of testimony of R1W1 shows that deceased has not fallen on the road of his own. It can be deduced from the testimony of R1W1 that the scooty being driven by respondent no. 1 has hit the deceased who has fallen down on the road and sustained injuries. The postmortem report shows that the injury to the head was caused by the impact of blunt force. The blunt force is possible only if scooty has hit the deceased. There is nothing in the testimony of R1W1 that scooty did not hit the deceased. The respondent no. 1 has failed to explain how the deceased has fallen down in case scooty did not hit him meaning thereby that respondent no. 1 has hit the scooty against deceased due to his negligent driving. The scooty was taken into possession by the police. The scooty was got mechanically examined. The scooty has sustained fresh damage.
DAR No. D-106/13 Page No. 7/17The respondent no. 1 has failed to explain bow the scooty was damaged in case no accident has taken place. Deceased has sustained injuries in the accident. The testimony of R1W1 has helped the petitioner. It is clear from the testimony of R1W1 and criminal case record that respondent no. 1 was driving the scooty in question and hit against the deceased who fell down and sustained injuries. The accident has taken place due to the negligence of the respondent no. 1. The issue is decided against respondents.
ISSUE NO. 211. PW-1 Sh. Het Ram is son of deceased. His affidavit Ex.PW-
1/A shows that deceased was 8th pass who was working as Guard in parking of Jhilmil Metro Station. The deceased was earning Rs. 10,000/- per month. They are children of deceased. Ex.PW-1/1 is the copy of ration card, Ex.PW-1/2 is the copy of receipt of Aadhar card, Ex.PW-1/3 is copy of domicile certificate, Ex.PW- 1/4 is the copy of death certificate, Ex.PW-1/5 is the copy of receipt dt. 28.07.2000, Ex.PW-1/7 is the certificate issued by Kamal Kumar Kardam, Sabhashad, Hathras, U.P. During cross- examination by R1 and R2, he stated that he does not know his date of birth. Shyam Lal and Kallo Devi are his brother and sister. The age of his elder brother is around 42-43 years and that of his sister is 18-19 years. He does not have election I card of his father. He does not have any other document to show his DAR No. D-106/13 Page No. 8/17 relationship with the deceased except the documents placed on record. The suggestion is denied that name of deceased was Om Prakash and Smt. Bubbli is wife of deceased. It is wrong that deceased has been residing with Bubbli for the last 10 years. He has been residing at Gali No. 1, Opp. New Friends Colony, Shahdara. He has been working as a Contractor. The suggestion is denied that deceased was a beggar. He does not have any document to show employment and earning of deceased. The suggestion is denied that he has forged the documents.
12. PW-2 SI Md. Razik stated that Smt. Bubbli told him that deceased is her husband but she did not given any proof to this effect. Het Ram approached him and told that he is son of deceased and identified the dead body of deceased as that of Kedari Lal. Het Ram was told to produce the documents with respect to the identity of the deceased who called 4-5 persons from the native village. He recorded their statements. The dead body was handed over to Het Ram after post mortem of the body of deceased. During cross-examination by the respondents, he stated that the deceased has been residing with Bubbli for the last 7-8 years but he cannot exactly confirm that deceased has been residing with Smt. Bubbli for the last 7-8 years as it may be more than that. It is correct that deceased was a beggar and this information was gathered from the statements of public persons present at the place of accident. He did not record their statements. He did not record any statement with respect to the DAR No. D-106/13 Page No. 9/17 relationship of deceased with Bubbli. Het Ram and other relatives of the deceased came to the hospital and claimed the dead body. They did not handover any proof of relationship to him.
13. PW-3 Dr. Priyal Jain stated that he has conducted autopsy on the body of deceased Kedari Lal. The body was identified by Het Ram and Shyam Lal i.e. sons of deceased who were brought by IO. The investigating officer has identified Het Ram and Shyam Lal. During cross-examination by insurance company, the suggestion is denied that name of deceased is not Kedari Lal which has been wrongly recorded in postmortem report.
14. Heard and perused the record. The petitioners are allegedly the children of deceased Kedari Lal. The petitioners namely Het Ram, Shyam Lal and Smt. Kallo Devi have claimed that they are children of deceased. On the other hand, respondents have alleged that deceased was married to Smt. Bubbli. No evidence to this effect has come on record that deceased was married to Smt. Bubbli or deceased has been residing with Smt. Bubbli. Het Ram has approached the police after the accident. Het Ram has also brought some persons from his native village to show that he is son of deceased. PW-2 is investigating officer of this case who has recorded the statements of those persons. The dead body of deceased was handed over to Het Ram. The IO should have handed over the dead body of deceased to some other person in case he was not satisfied that Het Ram is the son of deceased.
DAR No. D-106/13 Page No. 10/17There is nothing on the record that some other person is also related to the deceased. From the evidence, it is clear that petitioners are the children of deceased.
15. The petition for compensation is maintainable even if one is not dependent upon the earnings of the deceased. The proof of actual dependency is not necessary to claim compensation. Therefore petitioners, whether dependent or not, are entitled to claim compensation on account of the death of their father as they would suffer on account of loss of estate.
16. The testimony of PW-1 shows that deceased was working as a Guard and earning Rs. 10,000/- per month but there is no evidence to this effect. The evidence on record shows that deceased was a beggar. There is no proof of earning on record. There is not educational qualification on record. The deceased is put in the category of unskilled worker. The minimum wages prevailing for unskilled workers in Govt. of NCT of Delhi is taken as income of the deceased. The minimum wages of unskilled worker on the day of accident was Rs. 7254/-. The said amount of Rs. 7254/- is taken as income per month of the deceased.
17. The quantum of savings will determine the quantum of loss of estate. The quantum of savings can be taken as 1/4th where there are independent establishments. The petitioners were not residing with the deceased. The 1/4th of the income is taken as DAR No. D-106/13 Page No. 11/17 loss of estate. Reliance is placed upon Keith Rowe vs Prashant Sagar and ors. 2011 ACJ 1737. The monthly income of deceased is Rs.7254/-. The annual loss of estate comes to Rs. 21,762/- (Rs. 7254 x 12 x 1/4).
18. There is no formal age proof on record. The age of deceased is recorded as 65 years in the MLC prepared by GTB Hospital, Delhi. The said age is taken as age of deceased in the absence of formal proof of age. Keeping in view the law laid down in Sarla Verma vs DTC", 2009 ACJ 1298 the multiplier of 7 is adopted. The total compensation on account of loss of estate comes to Rs. 1,52,334/-.(Rs. 21,762/- x 7).
19. The petitioners are also entitled for non-pecuniary claim.
The petitioners are entitled for a sum of Rs. 50,000/- towards loss of love and affection and Rs. 25,000/- for funeral expenses.
20. The petitioners are entitled for the following compensation under the following heads : -
S. No. Name of heads Amount
1. Loss of estate Rs. 1,52,334/-
2. Loss of love and affection Rs. 50,000/-
3. Funeral expenses Rs. 25,000/-
TOTAL Rs. 2,27,334/-
LIABILITY
DAR No. D-106/13 Page No. 12/17
21. The respondent no. 3 has examined one witness. R3W1 Gautam Bhatnagar, Manager-Legal stated that notice u/o 12 rule 8 CPC Ex.R3W1/1 was sent by post to Ashok Kumar i.e. owner of the vehicle to produce DL, RC and insurance policy of the vehicle in question. R3W1/2 is the postal receipt. The insurance policy of the vehicle is Ex.R3W1/3. The respondent no. 1 is Juvenile in conflict with law. The owner is also charge sheeted u/s 4 & 5/181 MV Act. The respondent no. 1 was not holding a valid driving licence. There is fundamental breach in the terms and conditions of insurance policy so insurance company is not liable to pay the compensation.
22. Heard and perused the record. Respondent no. 1 is driver of the offending vehicle who is Juvenile in conflict with law. A notice u/o 12 rule 8 CPC Ex.R3W1/1 was issued to the owner of the vehicle to produce the documents of the vehicle including driving licence of the respondent no. 1. The driving licence of respondent no. 1 was not produced by respondent no. 2 even after the receipt of notice. The respondent no. 2 has been charge sheeted u/s 4 & 5/181 MV Act. The charge sheet against the respondent no. 1 was filed in the Juvenile Justice Board, Delhi. The respondent no. 1 was not holding a valid driving licence being juvenile in conflict with law. A valid driving licence is required to drive the vehicle. The absence of driving licence itself amounts to violation of the terms and conditions of the insurance policy DAR No. D-106/13 Page No. 13/17 Ex.R3W1/3. The deceased is a third party so insurance company is liable to pay compensation to the LRs of deceased and can recover the same from the owner of the vehicle i.e. R2.
RELIEF
23. In view of my aforesaid discussion, the petition of petitioners is allowed. The petitioners are entitled for a compensation of Rs. 2,27,334/- (inclusive of interim compensation, if any) from respondent no. 3 i.e. ICICI Lombard General Insurance Co. Ltd. with interest @ 12% p.a. from the date of filing of the petition till realization and can recover the same from R2 i.e. owner of the vehicle. (Reliance is placed on Puttama and ors. Vs K.L. Narayan Reddy and ors., 2014 ACJ 526 and C.A. No. 4814/13 titled as Nirupam Mohan Mathur vs New India Assurance Co. Ltd. decided on 01.07.2013 by Hon'ble Apex Court for the grant of interest.) AWARD
24. The petition of the petitioners is allowed. The respondent no. 3 is liable to pay a compensation of Rs. 2,27,334/- (including interim compensation, if any) with interest @ 12% p.a. from the date of filing of the petition till realization and can recover the same from R2 i.e. owner of the vehicle. The respondent no. 3 is directed to deposit the said amount including interest with DAR No. D-106/13 Page No. 14/17 Manager, UCO Bank, KKD Courts within 30 days from the date of passing of award. The petitioners are entitled for the compensation in equal proportion with corresponding interest.
25. The awarded amount to each of the petitioners shall be distributed in the following manner :-
Petitioner no. 1 The Manager, UCO Bank, KKD or of any other bank shall prepare one fixed deposit of Rs. 40,000/- for a period of one year and the balance amount shall be credited or released to his savings bank account after opening the bank account or transfer to the existing bank account, if any of the petitioner no. 1 after taking relevant documents.
Petitioner no. 2 The Manager, UCO Bank, KKD or of any other bank shall prepare one fixed deposit of Rs. 40,000/- for a period of one year and the balance amount shall be credited or released to his savings bank account after opening the bank account or transfer to the existing bank account, if any of the petitioner no. 2 after taking relevant documents.
Petitioner no. 3 The Manager, UCO Bank, KKD or of any other bank shall prepare one fixed deposit of Rs. 40,000/- for a period of one year and the balance amount shall be credited or DAR No. D-106/13 Page No. 15/17 released to her savings bank account after opening the bank account or transfer to the existing bank account, if any of the petitioner no. 3 after taking relevant documents.
26. The original fixed deposit receipts shall be retained by the bank during period of FDRs. However, the original pass book shall be given to the petitioners along with photocopy of the FDRs.
27. No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the permission of the court.
28. No cheque book be issued to the petitioner without the permission of this court.
29. The bank shall prepare FDR in its own name on the receipt of the award amount from the respondents till the date petitioners approach for the release of amount and thereafter amount along with interest shall be released to the petitioners as per order of the Tribunal.
30. On the request of the petitioners, the bank shall transfer the saving account to any other branch of UCO bank or any other bank according to their convenience.
31. The petitioners shall furnish all the relevant documents for opening of the saving bank account and fixed deposit account to DAR No. D-106/13 Page No. 16/17 Nodal Officer, UCO Bank, KKD, Delhi.
32. A copy of this judgment be given free of cost to the parties concerned.
33. File be cosigned to record room.
Announced in open (Suresh Kumar Gupta)
court on 16.09.2016 PO-MACT/SHD/KKD
DELHI
DAR No. D-106/13 Page No. 17/17