Delhi District Court
Smt. Pushpa Devi vs Surjeet Kumar Thakur on 24 May, 2014
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IN THE COURT OF MS. PREETI AGRAWAL GUPTA: PO
MACTCUMADJICum LAC(NORTH): ROHINI: DELHI
Case No. 533/09
1. Smt. Pushpa Devi
w/o Sh. Onkar Singh
2. Sh. Onkar Singh
s/o Late Sh. Lekh Raj Singh
3. Sh. Kapil Choudhary
s/o Sh. Onkar Singh
4. Miss Rachna Kumari
d/o Sh. Onkar Singh
all r/o EWS 396/2, Awas Vikas Colony 1
Kotwali Nagar, Bullandshehar - U. P.
....Petitioners
Versus
1. Surjeet Kumar Thakur
s/o Sh. Sat Narayan Thakur
r/o Vill. and PS Basuara
Distt. Darbhanga, Bihar.
2. Sh. Anirudh Choudhary
s/o Sh. Parmanand Choudhary
r/o 583, Vill. Khadipur
Post & Tehsil Gurgaon, Distt. Gurgaon
Haryana.
Case No. 533/09 Pushpa Devi V. Surjeet Kumar Thakur
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3. The New India Insurance Company Ltd.
Rohtak, Haryana.
....Respondents.
DATE OF INSTITUTION: 01.05.2007
JUDGMENT RESERVED ON: 20.05.2014
DATE OF JUDGMENT: 24.05.2014
AWARD:
1. The present case has been filed by the petitioners being legal
representatives of the deceased Pankaj Kumar Tomar , unmarried man aged 22 years 5 months at the time of accident . He is survived by his parents, brother and sister (both elder) who are claimants/petitioners here. By way of the present petition, the LRs of the deceased have sought compensation for irreparable monetary loss , mental agony, loss of love and affection and future prospects plus all other heads of compensation as per entitlement, caused due to accidental death of deceased to the tune of Rs. 35,00,000/ under section 166 & 140 of Motor Vehicle Act.
2. The concise facts of the case as averred in the petition are that on 13.11.07 at about 7:00 p.m the deceased was coming from Punjab in the offending vehicle which is TATA 407 bearing no. Case No. 533/09 Pushpa Devi V. Surjeet Kumar Thakur :3: HR557427. The offending vehicle /tempo was loaded with goods comprising of cloth roles of employer of deceased which were being taken. The aforesaid Tempo was being driven by respondent no.1 and the deceased was sitting adjoining to the seat of the driver of the said tempo. At about 3:00 p.m, in the intervening night between 13/14.1.2007, when the aforesaid tempo reached at Siras Pur turn on G.T.K Road, towards Azad Pur, Delhi, the driver of the said tempo suddenly fell asleep and the tempo in question which was running at a very high speed, went zigzag manner and struck the vehicle/dumper bearing no. HR469553 which was ahead of the tempo. As a result of the collusion, the deceased suffered multiple & grievous injuries upon being pushed & knocked with the front glass mirror of the tempo in which he was driving. The case was registered at P.S. Samaypur Badli vide FIR 41/07 U/s 279/337/304A IPC against respondent no. 1/driver.
3. It is the case of the claimants that deceased Pankaj Kumar Tomer, was about 22 years 5 month of age at the time of accident having sound health and not suffering from any disease and that the deceased was selfemployed as a Store Supervisor and having an earning of Rs. 6,500/ per month. The petitioners claimed dependency upon the deceased for their day to day necessities and Case No. 533/09 Pushpa Devi V. Surjeet Kumar Thakur :4: living. It is contended that all the respondents are liable to pay compensation to the petitioners.
4. Respondents no. /1 as driver and respondents no. 2/owner have filed joint written statements denying any cause of action on the ground that the accident did not occur solely due to rash and negligent driving of respondent no. 1. They have raised various preliminary objections and have denied the claim of the petitioners terming as at highly exaggerated compensation claimed by the petitioner. On merits, the petition is denied outrightly with the averments that the accident had not taken place with the alleged offending vehicle being driven by respondent no. 1, rashly and negligently, as alleged and also calling for strict proof of averments of the petition. It is submitted that the petition is not maintainable due to nonjoinder of necessary parties. It is prayed that that respondents no. 1 and respondent no. 2 are not liable to make payment for compensation, if any.
5. Respondent no. 3/insurance company has filed the written statement taking various preliminary objections that it has no statutory liability in contravention of terms and conditions of the insurance policy as per provisions U/s 149 (2) of the M.V.Act. On merits, the averments of the petition are denied.It is admitted that the Case No. 533/09 Pushpa Devi V. Surjeet Kumar Thakur :5: offending vehicle bearing No. HR469553 was duly insured, as on the date of accident, however, denying its liability to pay the compensation. Further, denying other averments of the petition, it is prayed that the petition be dismissed with costs.
6. Hence, From the pleadings of the parties, the following issues were framed vide orders dated 10.03.08:
1. Whether on 14.01.07 at 5:45 am on GTK Road, near Siraspur, Sh. Pankaj Tomar who was travelling in vehicle no. HR557427 suffered injuries and expired because of negligent driving of the aforesaid vehicle by its driver who rammed into vehicle no.
HR469553? OPP
2. Whether accident had occurred due to negligent driving on the part of the driver of vehicle no.HR469553? OPR1 & 2
3. Whether petition is bad for nonjoinder of driver, owner and insurer of vehicle no. HR469553? OPR 1 & 2
4. Whether the petitioners are entitled to compensation as prayed for if so from which of the respondent? OPP.
5. Relief.
7. The father of deceased/petitioner no. 2 appeared as PW1 and tendered his affidavit in evidence vide Ex. PW1/A. PW1 was Case No. 533/09 Pushpa Devi V. Surjeet Kumar Thakur :6: crossexamined, at length wherein he admitted that he did not brought the original of the ration card Ex. PW 1/1. PW1 was cross examined regarding the cutting on the ration card in regard to the name of the deceased. It is duly explained that the inadvertent error of name Sachin was replaced by the real name of deceased i.e Pankaj. The witness has further admitted that Petitioner no.4/Ms. Rachna and Petitioner no.3/Mr. Kapil were elder than the deceased. The witness was not an eye witness to the accident. The witness has deposed that her deceased son Pankaj Kumar was a regular student of B.Com (2nd year) of I.P (PG) College, Bulandshehar and he had passed intermediate in 3rd division with grace marks. PW1 admitted that salary certificate does not bear any date. He further expressed his inability to place any certificate of his deceased son regarding diploma in computer hardware. In further crossexamination, PW1 has deposed that he did not know whether any I card was issued by the employer of his deceased son. The witness has deposed that he was not having any diploma in Store Keeping Management. PW1 tendered certified copies of criminal record as Ex. PW2/1, copy of ration card as Ex. PW 2/2 and copy of voter card of deceased is tendered as Ex. PW2/3. Case No. 533/09 Pushpa Devi V. Surjeet Kumar Thakur :7:
8. The other witness of the petitioner is PW2 ASI Jaiprakash who produced FIR register containing FIR No. 41/07 dated 14.01.07 which is proved vide mark C. On cross examination by ld counsel for R1 and R2 , the witness has deposed that dumper no. HR469553 was impounded by him and later on the vehicle was released on superdari. The witness has also recorded statement of deceased Pankaj in BJRM Hospital. During further cross examination by ld counsel for Insurance Company, the IO has deposed that he had found both the vehicles involved in the accident on road.
9. Also, Girish Kumar, the eye witness of the accident has been examined as PW3. PW3 has deposed that on the intervening night of 13.01.2007 and 14.01.2007, he was driving the dumper bearing no. HR469553 at about 3:00 a.m from Alipur to Delhi at a very careful speed and the offending tempo bearing no. HR557427 came at a very high speed and hit the dumper being driven by him. The witness has further deposed that the deceased Pankaj Kumar Tomar was sitting besides the driver of the offending tempo and was badly injured due to the heavy impact. He was taken to the hospital by PCR Van where Case No. 533/09 Pushpa Devi V. Surjeet Kumar Thakur :8: he succumbed to his injuries sustained in the accident. The witness has further deposed that the accident was caused due to rash and negligent driving of respondent no. 1/Surjit Kumar Thakur who had fled away from the spot and was later arrested and apprehended. The witness has averred that his statement was recorded by police. PW3 was crossexamined by ld. Counsel for respondents no. 1 and 2. In crossexamination, PW3 reiterated that the accident occurred at G.T. K. Road , near Saraspur turn where the traffic was very slow. The witness has denied the suggestions that the accident was caused due to his own rash and negligent driving. No other witness was examined and petitioner evidence has been closed.
10. Respondent no. 1/ driver has appeared in the witness box as RW1 as respondent's witness. He has tendered his affidavit in evidence as Ex. RW1/A. The witness has averred that on 13.01.2007, he was driving TATA 407 bearing no. HR557427 carrying cloth rolls belonging to the employer of deceased Pankaj Kumar Tomar and was coming from Ambala and was going to Okhla Phase II, Delhi. The witness tendered in evidence his valid and effective driving licence bearing no. 1871/02 issued on 29.08.02 by Licencing Authority, Distt. Case No. 533/09 Pushpa Devi V. Surjeet Kumar Thakur :9: Darbhanga, Bihar as Ex.RW1/1. The witness has not been crossexamined. Thereafter, RE was closed.
11. The court has duly heard the Ld. Counsel for the petitioners and respondent (s) and has also duly appreciated the pleadings and material on record along with the evidence tendered before the court. The relevant applicable law in regard to the case before the court has also been considered.
12. The issues in the petition are being adjudicated as under:
Issue no. 1 and Issue no. 2 are adjudicated together as the facts and findings are common and connected.
ISSUE NO 1 & 2: Whether on 14.01.07 at 5:45 am on GTK Road, near Siraspur, Sh. Pankaj Tomar who was travelling in vehicle no. HR557427 suffered injuries and expired because of negligent driving of the aforesaid vehicle by its driver who rammed into vehicle no. HR469553? OPP & Whether accident had occurred due to negligent driving on the part of the driver of vehicle no.HR469553? OPR1 & 2
13. The present claim filed by the L. Rs of the deceased Case No. 533/09 Pushpa Devi V. Surjeet Kumar Thakur :10: Pankaj Tomar who met with a fatal accident on 14.01.07 at about 7:00 p.m. at GTK Road , Near Siras Pur Turn, Delhi involving vehicle no. TATA 407 No. HR557427 which was being driven by its driver/respondent no. 1. The injured (since deceased) was taken to BJRM Hospital from the place of accident and ultimately succumbed to his injuries on the same day i.e. 14.01.07. The case was registered at P.S. Samaipur Badli, Delhi vide FIR No. 41/2007 U/s 279/337/304A IPC against respondent no. 1/driver. The postmortem report bearing no. 39/07 of the deceased is also duly proved on record and the perusal of the same shows the cause of death, due to injuries arising out of the road accident.
14. The averments and the allegations of the petitioners have been contested and denied by respondents by way of the averments in their respective written statements. Respondent nos. 1/driver and respondent no.2/registered owner & respondent no. 3 being insurance company have denied the cause of accident owing to rash and negligent driving of the offending vehicle by respondent no.1. However, it is also not denied that respondent no.1 was driver of the offending vehicle. Respondent no.3/Insurance Company has not claimed any breach or violation of the insurance cover of the offending vehicle in question.
Case No. 533/09 Pushpa Devi V. Surjeet Kumar Thakur :11:
15. On the aspect of "rash and negligent driving", law has been well settled in this regard. The Hon'ble High Court of Delhi in National Insurance Company Ltd. Vs. Gita Bindal & Ors. in MAC APP. No. 179/2004 vide judgment dt. 12.10.2012 has passed binding guidelines on the principle of "Doctrine of Res Ipsa Loquitur". The Hon'ble High Court of Delhi have been pleased to discuss the law of Res Ipsa Loquitur and has been pleased to summarize the principles.
It has been held that "Res ipsa Loquitur means that the accident speaks for itself. In such cases, it is sufficient for the plaintiff to prove the accident and nothing more". ...
It has been further laid down that"Res ipsa Loquitur is an exception to the normal rule that mere happening of an accident is no evidence of negligence on the part of the driver. This maxim means the mere proof of accident raises the presumption of negligence unless rebutted by the wrongdoer." ...
It has been further observed that"in some cases considerable hardship is caused to the plaintiff as the ture cause of the accident is not known to him, but is solely within the knowledge of the defendant who caused it, the plaintiff can prove the accident, but can not prove how it happened to establish Case No. 533/09 Pushpa Devi V. Surjeet Kumar Thakur :12: negligence. This hardship is to be avoided by applying the principle of res ipsa loquitur is that the accident speaks for itself or tells its own story. There are cases in which the accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and nothing more." ...
It has been further appreciated that"the effect of doctrine of 'res ipsa loquitur' is to shift the onus to the defendant in the sense that the doctrine continues to operate unless the defendant calls credible evidence which explains how the accident of mishap may have occurred without negligence, and it seems that the operation of the rule is not displaced merely by expert evidence showing, theoretically, possible ways in which the accident might have happened without the defendant's negligence. The doctrine of 'res ipsa loquitur, therefore, plays a very significant role in the law of tort and it is not the relic of the past, but the living force of the day in determining the tortuous liability."
16. In the facts of the present case, PW3 Girish Kumar is the eye witness and has duly corroborated the averments in the petition as regards the occurrence of the road accident in question. PW3 is the driver of the dumper which was going Case No. 533/09 Pushpa Devi V. Surjeet Kumar Thakur :13: ahead of the offending tempo in which deceased was travelling. PW3 has categorically deposed that the accident in question was caused due to rash and negligent act of the offending vehicle/ tempo TATA 407 bearing No.HR557427 by its driver. PW3 has proved that the deceased Pankaj Kumar Tomar was sitting besides the driver of the offending tempo who hit the dumper from behind and was badly injured due to heavy impact. The testimony of PW3 is consistent and duly corroborates the factum of accident as averred in the petition. During crossexamination of the eye witness, suggestions have been put to challenge the testimony of the eyewitness as regards the alleged rashness and negligence on the part of respondent no.1 in driving the offending tempo in question. However, no material breach or contradiction has been brought forth before the Court to doubt the testimony of PW3.
17. The court has carefully appreciated the entire evidence relevant to this issue and also appreciated the documents which are available on record. It is already discussed hereinabove, that the involvement of the driver /respondent no. 1 and the offending truck bearing no. HR557427 is duly established. The respondents have failed to discharge the onus Case No. 533/09 Pushpa Devi V. Surjeet Kumar Thakur :14: laid upon them by way of well settled law by "resipsa Loquitur"
as has been discussed hereinabove. In respondent evidence, respondent no. 1 has examined himself as RW1. It is alleged that the offending tempo hit dumper bearing no. HR 469553 as the same was parked on the highway without its hazard lights on. This new story put forth by RW1 is not supported from any other material and even the written statement of respondent no.
1. The new defence has been put forth as an after thought and is only a bald assertion without any supporting material. There is no breach or contradictions in petitioner's evidence or case of the petitioner which can show any plausible defence in favour of the respondents. The postmortem report, clearly establishes that the petitioner sustained fatal injuries from the road accident caused by the offending truck in question. The consistent and corroborated evidence duly proves that the road accident occurred, due to rash and negligent driving act of driver/ respondent no. 1 of offending tempo bearing no. HR557427. It is further evident from the medical record that the victim died due to fatal injuries sustained in the road accident in question, therefore, issue is disposed of in favour of the petitioner. The issue no.1 and 2 stands duly proved in favour of the petitioners Case No. 533/09 Pushpa Devi V. Surjeet Kumar Thakur :15: and against the respondents.
ISSUE NO. 3:
Whether petition is bad for nonjoinder of driver, owner and insurer of vehicle no. HR469553? OPR 1 & 2 The onus to prove this issue has been casted upon respondents. In the written statements filed on behalf of respondents no. 1 and 2, preliminary objections have been taken on the ground that the petitioner is bad for nonjoinder of driver, owner and insurer of vehicle no. HR469553. It is bald case put forth by respondent no.1 that the accident occurred due to rash and negligent driving of said dumper which was going ahead of the offending tempo in which the deceased was travelling. However, as has been discussed in the findings on the issues hereinabove, respondents have not been able to support their bald defence by any plausible material which could shift the presumption of resipsaloquitor in their favour. It is duly proved that the accident occurred due to rash and negligent act of respondent no.1 while driving the offending tempo and hit against the dumper bearing no. HR469553. The deceased suffered fatal injuries due to the said impact. There is no evidence or material to suggest any rash and negligent act or driving of Case No. 533/09 Pushpa Devi V. Surjeet Kumar Thakur :16: driver dumper bearing no. HR469553. The driver of the said dumper himself appeared as an eye witness as PW3 and there is nothing in his cross examination whereby the respondent no. 2 could prove any attributable rashness and negligence upon the driver of the dumper.
ISSUE NO. 4:
Whether the petitioner is entitled to compensation as prayed for, if so to what extent and from which of the respondents?OPP.
The claimants are legal representatives of the deceased whereby petitioner No.1 is the mother, petitioner no. 2 is father and petitioner nos. 3 and 4 are elder brother and sister of the deceased , respectively. Therefore, only petitioner no. 1 and 2 are the L. Rs /dependents upon the deceased, being his parents and they shall be entitled to just and reasonable compensation.
19. On account of loss of dependency, the factum of alleged income of the deceased at the rate of Rs. 6,500/ per month as employee as Store Suprvisor with a company has been claimed , but the same is not proved. No reliable proof of income by way of any document or material has been furnished. Though, employment is claimed , the employment records have not been summoned or proved. However, it is duly proved on record that Case No. 533/09 Pushpa Devi V. Surjeet Kumar Thakur :17: the deceased was a matriculate as a certificate of Diploma in Computer Hardware is tendered as Ex. PW1/3. Admittedly, the deceased was pursuing graduation and was not yet a graduate . Further, the deceased is stated to be 22 years at the time of his death which is reflected from supporting reliable material and not disputed. Now, considering the age and education of the deceased and the fact that he was allegedly employed , thought not proved, it would, thus, justify the assessment of income of the deceased, as per minimum wages schedule, applicable for Graduates. It is considered that the deceased was pursuing graduation but the income of a graduate is being considered as he had already holding a Diploma in Computer Hardware. Therefore, the income of the deceased is assessed as per the Minimum Wages applicable for graduate and, therefore, his income is assessed at Rs. 4,072/ per month, as per minimum wages schedule as applicable.
20. It is further relevant to take into consideration the law laid down by Hon'ble Supreme Court in case titled Smt. Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr., SLP (C) No. 8648 of 2007, wherein it has been held that the claimants shall be entitled to addition on account of future Case No. 533/09 Pushpa Devi V. Surjeet Kumar Thakur :18: prospects depending upon the facts of each case. Uniform guidelines have been laid down for computation of addition on account of future prospects depending upon the age of the deceased/disabled and nature of employment of the victim. The law has been further developed in by Hon'ble Supreme Court in its latest judgment in Santosh Devi Vs. National Insurance company Ltd. and ors. in Civil Appeal NO.,. 3723 of 2012 arising out of SLP (C) No. 24489 of 2010. The Hon'ble Division Bench of Supreme Court has observed that aspect of future prospects shall be a relevant consideration in computation of just and proper compensation even in cases where the deceased was self employed or on a fixed salary without provisions for annual increments etc. The Hon'ble Supreme Court in Santosh Devi's case (Supra) allowed the addition of 30 % on account of future prospects in such cases. Thereafter, there are two views of Hon'ble Supreme Court of India held in 1 (2010) ACC A SC in Rajesh Tyagi Vs. Rajbir Singh relied upon by the petitioner; and in Reshma Kumari & Ors. Vs. Madan Mohan & Anr. Arising out of civil appeal no. 4646 of 2009 and 4647 of 2009 dt. 02.04.13 relied upon the Insurance company. The Hon'ble High Court of Delhi has duly appreciated the legal Case No. 533/09 Pushpa Devi V. Surjeet Kumar Thakur :19: preposition on this aspect and has been pleased to lay down the binding authority in MAC Appeal No. 846/2011 vide judgment delivered on 30.09.2013. The Hon'ble High Court of Delhi has been pleased to lay down the law for the purpose of just and proper assessment of computation of the loss of dependency viz aviz assessment of future prospects. "It has been held that the assessment of future prospects in respect of person falling under the category of selfemployment /fixed wages this court is guided by the dictum laid down in Rajesh's case (Supra). "In my considered opinion, there is no contradiction in the dictum laid down by the Apex Court in the cases of Reshma Kumari and Rajesh." The Hon'ble High Court of Delhi also after reasonable consideration has been pleased to conclude that "there is no contradiction in the finding of Sarla Verma and Santosh Devi, in turn, the Apex Court extended the scope and ambit of Sarla Verma through Santosh Devi. Therefore, this court is guided by the legal principles as set out in Reshma Kumari and Rajesh in order to assess the just compensation as it is envisaged in Section 168 of Motor Vehicles Act, 1988." It has been further laid down that in case of self employment or persons with fixed wages, in case, the deceased victim was below 40 years, there Case No. 533/09 Pushpa Devi V. Surjeet Kumar Thakur :20: must be an addition of 50 % to the actual income of the deceased while computing future prospects.
21. It has already been considered that it has been duly proved that the deceased was 22 years of age. In view of the discussion hereinabove on the aspect of appropriate future prospects, the facts and circumstances of the case have been carefully appreciated and examined. In this case, as the deceased was 22 years of age and qualified, it is appropriate and reasonable to follow the law laid down by the Hon'ble Supreme Court and Hon'ble High Court of Delhi, by allowing addition of 50 % on account of future prospects. The monthly income of the deceased has been assessed at Rs.4,072 per month. The addition on account of future prospects shall be 50% of the income of the deceased. Accordingly, the monthly income of the deceased comes out to Rs. 6,108/ per month ( 4,072 + 50 % of 4072) which is rounded of to Rs. 6,200/.
22. In view of Sarla Verma's (Supra) judgment, as the deceased was unmarried, 50% is to be deducted towards personal and living expenses of the deceased from his income.
Accordingly, the monthly contribution of the deceased to his family is calculated Rs. 3,100/ per month ( Rs. 6,200 Rs. Case No. 533/09 Pushpa Devi V. Surjeet Kumar Thakur :21: 3100).
23. For the purpose of application of appropriate multiplier, age of the deceased was 22 years at the time of accident, as discussed hereinabove and duly proved. The deceased is represented through his parents since he was unmarried. On this aspect, the judgment of Hon'ble High Court of Delhi dt. 24.03.2014 whereby a consolidated judgment has been passed by Hon'ble High Court of Delhi in MAC Appeal NO. 152/14 in case titled as Mohd. Hasnain & Ors. Vs. Jagram Meen & Ors. alongwith three such cases, wherein the legal position pertaining to the applicability of the correct multiplier has been appreciated and discussed at length. The Hon'ble High Court of Delhi appreciated the landmark judgment in Smt. Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr., SLP (C) No. 8648 of 2007. In the cited judgment, the deceased was aged about 19 years at the time of accident and was unmarried. The Hon'ble High Court of Delhi held that "in the assessment of dependency, the courts/ tribunal are computing the purchasing capacity of the deceased; not the claimants. Therefore, I am of the considered opinion that the age of the victim is the proper factor for selecting the correct multiplier." Case No. 533/09 Pushpa Devi V. Surjeet Kumar Thakur :22:
23. In terms of the law of the land laid down by Sarla Verma's case, read with the above discussion on the aspect of multiplier whereby the age of deceased shall be relevant. Taking the age of the deceased as 22 years at the time of accident, the multiplier of 18 is applicable. The loss of dependency is, therefore, calculated @ Rs.6,69,600/ ( 3,100 x12x18) which is rounded of to Rs. 6,70,000/.
24. In the present case, no medical expenses have been claimed as due to unfortunate demise of the deceased on the same day of the accident.
25. The petitioners shall be entitled to an amount of Rs 25,000/ is added towards funeral and miscellaneous expenses as per well settled law, which the petitioners had to incur due to the death of deceased, as no further expenses have been proved.
26. Relying upon the judgment titled Smt. Sarla Verma & Ors Vs Delhi Transport Corporation & anr (Supra), as herein above, the Hon'ble High Court of Delhi vide orders dt. 19.03.2012 passed in large number of cases including case titled as Smt. Dhaneshwari & Anr. Vs. Tejeshwar Singh & Ors. has placed reliance upon the authorities of Hon'ble Supreme Court of Case No. 533/09 Pushpa Devi V. Surjeet Kumar Thakur :23: India in Sunil Sharma Vs. Bachitar Singh (2011) 11 SCC 425 and in Baby Radhika Gupta V. Oriental Insurance Company Limited ( 2009) 17 SCC wherein Rs. 25,000/ ( in total to all the claimants) under the head of loss of love and affection has been granted. Also the claimants shall be entitled to an amount of Rs 10,000/ towards loss of estate. The Hon'ble High Court of Delhi in recent judgment in MAC Appeal no. 196/13 in case titled as The Oriental Insurance Co. Ltd. Vs. A. K. Puri & Ors vide judgment delivered on 24.03.2014 has been pleased to give further guidance for just and proper adjudication of compensation. Accordingly, in the present case, the L.Rs of the deceased are entitled to a sum of Rs. 1,00,000/ as compensation on account of loss of love and affection.
27. Thus, the total compensation awarded to petitioners is detailed as below:
1. Loss of dependency Rs. 6,70,000/
2. Funeral & miscellaneous expenses Rs. 25,000/
3. Loss of estate Rs. 10,000/
4.Loss of love and affection Rs. 1,00,000/ Total awarded compensation Rs.
8 , 05 ,00 0 / Less interim award Rs. 50,000/ Total payable Rs. 7 , 55 ,00 0 / Case No. 533/09 Pushpa Devi V. Surjeet Kumar Thakur :24:
28. So far as the liability to pay compensation is concerned, there is no violation of terms and conditions of the insurance policy. In these circumstances, respondent no. 1 being the driver is primarily liable to pay compensation. Respondent no. 2 and 3 being owner and insurer are vicariously liable to pay the compensation. Compensation is payable by respondent no. 3 being insurer, as vehicle was duly insured as on the date of accident. The issue is disposed of accordingly.
29. RELIEF:
In view of the aforesaid discussions, I hereby hold that petitioners are entitled to a sum of Rs. 8,05,000/(including interim award) along with interest @ 7.5% per annum from the date of filing of present petition till its realization. Interim award is liable to be deducted.
30. In view of the guidelines issued by Hon'ble Supreme Court of India in "General Manager, Kerala State RTC Vs. Mrs. Susamma Thomas and Others" for appropriate investments to safeguard the amount from being frittered away by the beneficiaries owing to ignorance, illiteracy and susceptible to exploitation, the respondent No.4/insurance company shall be Case No. 533/09 Pushpa Devi V. Surjeet Kumar Thakur :25: liable to pay awarded amount to the petitioners in terms of the following arrangement as ordered below:
31. Out of the award amount, the apportionment of respective shares of each of the petitioners is directed as under:
i) A sum of Rs. 25,000/ each is granted in favour of petitioners no. to 3 and 4 as they are major, nondependents upon the deceased but are entitled to their share towards love & affection.
ii)A sum of Rs. 2 lacs is granted in favour of petitioners no.2, being father of the deceased.
iii)The remaining amount of the awarded compensation with accrued total interest, shall be receivable by petitioner no.
1/mother of deceased.
32. As regards the share of petitioner no. 1, 75 % out of her share be kept in two FDRs for a period of 2 & 5 years . No orders as to share of other petitioners, The FDR's shall have no facility of loan advance or pre mature withdrawal, without leave of the court. However, petitioner no. 1, shall have the facility to withdraw the interest monthly/quarterly as per their option.
33. In view of the aforesaid findings and in terms of the Case No. 533/09 Pushpa Devi V. Surjeet Kumar Thakur :26: award /order of this court, the petition is disposed off in aforesaid terms. Respondent no. 3 is directed to deposit the cheques in the names of the claimants within 30 days before this Tribunal. Respondent No.3 is also directed to furnish certificate of TDS if applicable. File be consigned to Record Room. ANNOUNCED IN THE OPEN (PREETI AGRAWAL GUPTA) COURT ON 24.05.2014 PO,MACT1 CumADJ1 Cum Designated LA Court, NORTH,ROHINI, DELHI A Miscellaneous file is directed to be prepared for the purposes of realisation of the award in favour of the petitioners.
(PREETI AGRAWAL GUPTA) PO,MACT1 CumADJ1 Cum Designated LA Court, NORTH,ROHINI, DELHI Case No. 533/09 Pushpa Devi V. Surjeet Kumar Thakur :27: Suit NO. 533/10 24.05.2014 Present: None.
Vide separate detailed award, dictated and announced in the court today, an award in sum of Rs. 8,05,000/(including interim award) alongwith interest payable from the date of petition is hereby passed in favour of the petitioners and against the respondents with liability to pay upon the respondent no. 3/ insurance company. Respondent No.3 is directed to deposit the cheque in terms of the award within 30 days before this Tribunal. Respondent No.3 is also directed to furnish certificate of TDS if applicable. Petition is disposed of in aforesaid terms. File be consigned to Record Room.
(PREETI AGRAWAL GUPTA) PO,MACT1 CumADJ1 Cum Designated LA Court, NORTH,ROHINI, DELHI A Miscellaneous file is directed to be prepared for the purposes of realisation of the award in favour of the petitioners.
Naib Nazir directed to make an entry in the realisation register and place the miscellaneous file before the undersigned for Case No. 533/09 Pushpa Devi V. Surjeet Kumar Thakur :28: disposal and consignment to the record room on receipt and disbursement of the compensation, as per award.
Miscellaneous file to come for further proceedings for 05.07.2014. Parties to appear.
(PREETI AGRAWAL GUPTA) PO,MACT1 CumADJ1 Cum Designated LA Court, NORTH,ROHINI, DELHI Case No. 533/09 Pushpa Devi V. Surjeet Kumar Thakur :29: Suit No.533/10 20.05.2014 Present : Proxy counsel for parties.
Arguments heard. Put up for orders on 24.05.2014.
ADJCumJudge MACT1(North) Rohini,Delhi/ 20.05.2014 Case No. 533/09 Pushpa Devi V. Surjeet Kumar Thakur