Delhi District Court
Chani Ram & Ors. vs . Rais Ahmed & Ors. on 14 October, 2014
Chani Ram & Ors. Vs. Rais Ahmed & Ors.
IN THE COURT OF SH. K S MOHI : PRESIDING OFFICER : MACT
SOUTH DISTRICT : SAKET COURTS : NEW DELHI
Petition No. : 223/11
Unique Case ID : 02406C0302462011
1. Chani Ram (Deceased)
Through LR's
1a) Smt. Kalawati Devi
W/o Late Chani Ram
1b) Sh. Amit K Ram
S/o Late Chani Ram
1c) Vandana Ram
S/o Late Chani Ram
All R/o 212, 2nd Floor,
Shahpur Jat, New Delhi
2. Smt. Kalawati Devi
W/o late Chani Ram
R/o 212, 2nd Floor,
Shahpur Jat, New Delhi ..... Petitioners
Versus
1. Rais Ahmed
S/o Sh. Rahemad Shah
R/o Indra Colony West,
Khatari, Ram Nagar, Uttrakhand - 263139 ..... Driver cum Owner
2. National Insurance Co. Ltd.
Div. No. 10, Flat No. 101106, N1,
BMC House, Cannaught Place,
New Delhi - 110 001 ..... Insurer
..... Respondents
Petition No. : 223/11 Page No. 1 of 17
Chani Ram & Ors. Vs. Rais Ahmed & Ors.
Date of Institution : 20.09.2011
Date of reserving of judgment/order : 29.09.2014
Date of pronouncement : 14.10.2014
J U D G M E N T :
1. The petitioners have filed the present petition u/s 166 & 140 of the Motor Vehicles Act, 1988 for claiming compensation of Rs. 45,00,000/ for untimely death of Mukesh Ram in an accident on 16.11.09 at about 7.30 AM near Vill. Amroli, Jainal Deghat Motor Marg, Bhikyasen, Almora, Uttrakhand.
2. Brief facts of the case are that on the fateful day of accident i.e. 16.11.2009, the petitioner no.1 was going to Bharsoli, Dheghat for pooja with his family. He hired the offending vehicle Maruti Alto bearing registration no. UK 04 TA 1291 from Ramnagar. The driver cum owner of the said car was driving very fast and rashly. Petitioner no.1 told him many times not to drive fast. At about 7.30 AM near vill. Amroli, Jainal Deghat Motor Marg, Bhikyasen, Almora, Uttrakhand, respondent no.1 lost control over the steering of his car and due which the offending vehicle fell down into the river. Mukesh Ram expired on the way to hospital due to fatal injuries. A case vide FIR no. 05/09 was registered at Bhikyasen, Almora, Uttrakhand. It was stated that the accident took place due to rash, negligent and careless driving of Maruti Alto car bearing no. UK 04 TA 1291 by respondent no.1. He was also the Petition No. : 223/11 Page No. 2 of 17 Chani Ram & Ors. Vs. Rais Ahmed & Ors.
owner of the the said car. The offending car was insured with respondent no.2. It was stated that the deceased was 25 years of age. He was an Aerobic cum Yoga and Fitness Trainer and was earning Rs. 30,000/ p.m.
3. Notice of the petition was given to the respondents. Respondent no.1 chose not to appear. He was proceeded Exparte vide order dated 24.01.2012. Respondent no.2 filed the written statement denying the averments of the petition. It however, admitted that the offending vehicle was insured with it vide policy bearing no. 70518790 for the period from 16.09.09 to 15.09.10.
4. Following issues were framed vide order dated 03.04.2012 :
1. Whether the deceased succumbed to the injuries sustained in road accident on 16.11.09 at about 7.30 AM near Vill. Amroli, Jainal Deghat Motor Marg, Bhikyasen, Almora, Uttarakhand due to rash and negligent driving of the vehicle no. UK 04 TA 1291 being driven and owned by respondent by respondent no.1 and insured with respondent no.2 insurance company?
2. To what amount of compensation the petitioners are entitled and from whom?
3. Relief.
5. To substantiate their case, petitioner Kalawati Devi examined herself as PW1. She tendered in evidence her affidavit Ex.PW1/A. She also tendered the documents Ex.PW1/1 to Ex.PW1/19. Sh. Rajeev Anuragi, Finance Petition No. : 223/11 Page No. 3 of 17 Chani Ram & Ors. Vs. Rais Ahmed & Ors.
Executive, NT Back Office Services Pvt. Ltd. was examined as PW2. Respondents did not examine any witness.
6. I have heard the arguments advanced by Ld. counsel Sh. Harsh Gupta for the petitioners and Ms. Kanta proxy counsel for the insurance company. My findings on the issues are as under :
I S S U E No. 1
7. It is well settled law that where petition under Section 166 of the Act is instituted, it becomes the duty of the petitioner to establish rash and negligent driving. To prove rash and negligent driving in a petition under Motor Vehicles Act, Tribunal need not go into the technicality because strict rules of procedure and evidence are not followed. Basically, in road accident cases, Tribunal has simply to quantify the compensation which is just rational and reasonable on the basis of enquiry. The proceedings under Motor Vehicles Act are not akin to the proceedings in a civil suit. Further, roving enquiry is not required to prove the rashness and negligence on the part of the driver as has been held in Kaushumma Begum and others Vs New India Assurance Co. Ltd. 2001 ACJ 421 SC.
8. PW1 has stated that on the fateful day of accident i.e. 16.11.09 she was going to Bharsoli, Dheghat for pooja with her family. Her husband had hired Petition No. : 223/11 Page No. 4 of 17 Chani Ram & Ors. Vs. Rais Ahmed & Ors.
the offending vehicle, Maruti Alto bearing registration no. UK 04 TA 1291 from Ramnagar. The respondent no.1 was driving the offending vehicle very fast and rashly. She and her husband told him many times not to drive fast. At about 7.30 PM near Vill. Amroli, Jainal Deghat Motor Marg, Bhikyasen, Almora, Uttrakhand the respondent no.1 lost his control over the steering. The offending vehicle bearing no. UK 04 TA 1291 met with an accident and fell down into the river. Deceased Mukesh Kumar who was travelling with her in the offending vehicle got expired on the way to hospital due to fatal injuries which he received in the accident. Other family members also got injured. The local people admitted them to Community Health Centre, Amroli. Postmortem of deceased was conducted. A case vide FIR no. 05/09 was registered at the police station at Nayab Tehsildar, Bhikyasen, Almora. During crossexamination she stated that she was conscious after the accident. She denied that the accident took place due to involvement of some other vehicle. In the instant case the petitioners have filed the certified copy of FIR, charge sheet and other documents. In the charge sheet respondent no.1 was made an accused. As per postmortem report the cause of death was comma due to ante mortem head injury.
From the testimony of PW1 coupled with the documents, it is established that Mukesh Kumar died due to the injuries sustained in a road accident on 16.11.09 at about 7.30 AM near vill. Amroli, Jainal Deghat Motor Marg, Bhikyasen, Almora, Uttarakhand due to rash and negligent driving of Petition No. : 223/11 Page No. 5 of 17 Chani Ram & Ors. Vs. Rais Ahmed & Ors.
the vehicle bearing no. UK 04 TA 1291 by respondent no.1. Documents placed on record would show that the vehicle was also owned by respondent no.1 and it was insured with respondent no.2.
9. Issue no.1 is accordingly decided in favour of the petitioners and against the respondents.
I S S U E No. 2
10. It has been held in a catena of judgments that emphasis in cases of personal injury and fatal accident should be on awarding substantial, just and fair compensation and not a token amount. General principle in calculating such sum of compensation, should be so as to put the injured or legal heirs of a deceased in case of fatal accident, in the same position as he would have been, if accident had not taken place. The amount of compensation no doubt cannot bring back the dead but it certainly helps the LR's and dependents to live life with dignity and comfort as they were living during the lifetime of the deceased. The amount of compensation is awarded on the basis of age, the earning capacity and other liabilities of the deceased. The appropriate method of calculating compensation in fatal cases is multiplier method. The Hon'ble Supreme Court in plethora of judgments has laid down that in India, the multiplier method is proper for calculation of compensation.
11. In order to calculate the amount of compensation, the sum is required to be Petition No. : 223/11 Page No. 6 of 17 Chani Ram & Ors. Vs. Rais Ahmed & Ors.
considered under the various heads :
LOSS OF DEPENDENCY :
12. PW1 has stated that the deceased was her son. He was running his aerobics classes in various societies and colleges. He was earning Rs. 30,000/ p.m. PW2 has stated that the deceased Mukesh Ram was working as Mediconnect in NT Back Office Services Pvt. Ltd. which stood closed w.e.f. 31.03.2010. During crossexamination she stated that her husband had predeceased. The deceased was 12th class pass. She admitted that she has not filed any document to show that the deceased was working since 2002. She admitted that she has not filed any appointment letter issued by Ministry of Health Cooperative House Building Society Ltd. to show that her deceased son was working with them in the year 200809. She admitted that she has not filed any document to show that the deceased was earning Rs. 30,000/ p.m. at the time of accident. She also admitted that she has not filed any document to show the employment and earnings in the year 2009. PW1 has deposed in her evidence that the deceased worked in Globerian India Pvt. Ltd. in the year 200607 and his salary was Rs. 15,460/ p.m. But she has not stated anywhere that at the time of accident he was working in Globerian India Pvt. Ltd. PW2 has stated that the firm stood closed w.e.f. 31.03.10. He even not proved any document of Globerian India Pvt. Ltd. Since the petitioner has not filed any document to show that the deceased was earning Rs. 30,000/ p.m. at the time of Petition No. : 223/11 Page No. 7 of 17 Chani Ram & Ors. Vs. Rais Ahmed & Ors.
accident, so, this Court has no option but to switch over to the minimum wages of a 'Matriculate' which on the date of accident were Rs. 4,401/ p.m. Thus, the annual salary of the deceased for calculating loss of dependency comes to Rs. 52,812/ (Rs. 4,401 x 12). In the case of Rajesh & Ors. Vs. Rajbir Singh & Ors. 2013 (6) Scale 563 it was held as under :
Since, the Court in Santosh Devi Vs. National Insurance Co. Ltd. & Ors. Manu/SC/0322/2012, actually intended to follow the principle in the case of salaried persons as laid in Sarla Verma Vs. DTC 2009(6) Scale 129 and to make it applicable also to the selfemployed 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 selfemployed 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. Additional should be 30% in case the deceased was in the age group of 40 to 50 years.
13. In the case of ICICI Lombard General Insurance Co. Ltd. Vs. Angrej Singh & Ors. MAC App. No. 846/2011 the Hon'ble High Court in its judgment dated 30.09.2013 considered the case of Sarla Verma Vs. DTC 2009 (6) Scale 129, Santosh Devi Vs. National Insurance Co. Ltd. & Ors. Manu/SC/0322/2012, Reshma Kumari & Ors. Vs. Madan Mohan & Ors. 2013 (5) Scale and Rajesh & Ors. Vs. Rajbir Singh & Ors. 2013 (6) Scale 563, Central Board of Dawoodi Bohra Community and Anr. Vs. State of Maharashtra and Anr. Vohra Community & Anr. (2005) 2 SCC 673 and held as under :
Petition No. : 223/11 Page No. 8 of 17
Chani Ram & Ors. Vs. Rais Ahmed & Ors.
In view of the above, 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. In Reshma Kumar, the Apex Court affirmed the findings of Sarla Verma; and in Rajesh, the Hon'ble Supreme Court has agreed with the dictum of Santosh Devi. Specifically, for the assessment of future prospects in respect of the persons falling under the category of selfemployment/fixed wages this court is guided by the dictum laid down in Rajesh. 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.
14. The Hon'ble High Court has also referred the case of National Insurance Co. Ltd. Vs. Raja Ram decided by this Court on 25.08.09 in MAC App. 175/2006 and case of Sajha Vs. National Insurance Company Ltd. 2010 ACJ 627 whereby it was held that schedule of minimum wages show wages slightly increases from time to time after every six months; and within next 10 years wages would have become double. Therefore, the increase in the wages has to be taken into consideration while assessing the compensation on account of future prospects.
15. As per the school certificate, date of birth of the deceased was 31.01.1984.
The accident occurred on 16.11.2009. Thus, he was more than 25 years of age at the time of accident. Following the case law (supra), 50% are to be added to the income of the deceased for computing future prospects. Adding the future prospects, the annual income comes to Rs. 52,812 + 26,406 (50% of Rs. 52,812/) = Rs. 79,218/. In the present case the deceased was unmarried. It was held in the case of Sarla Verma Vs. DTC 2009 (6) Scale 129 that with regard to the bachelor, normally 50 per cent is deducted as Petition No. : 223/11 Page No. 9 of 17 Chani Ram & Ors. Vs. Rais Ahmed & Ors.
personal and living expenses because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there was a possibility of him getting marriage in a short time, in which time the contribution to the parents would be cut drastically. It was also held that even if the deceased is survived by the parents, only the mother would be considered as dependent and 50 per cent would be treated as personal and living expenses of the bachelor and 50 per cent as the contribution to the family. After deducting onehalf towards personal and living expenses, the net income for calculating the loss of dependency comes to Rs. 39,609/.
16. In a recent judgment while disposing of a bunch of appeals, Hon'ble High Court of Delhi has dealt with the issue as to whether the multiplier is to be ascertained on the basis of age of the deceased or on the basis of age of the claimants?
17. The Hon'ble High Court while referring to a number of judgments including the celebrated judgment titled 'Sarla Verma Vs. DTC 2009(6) Scale 129' came to the conclusion that in all cases the multiplier as per the age of the deceased shall be applied, irrespective of marital status of the deceased.
18. It has been held by Hon'ble Delhi High Court in the case of Mohd. Hasnain & Ors. Vs. Jagram Meena & Ors. MAC App. 152/2014 decided on 24.03.2014 that :
The maximum value of the multiplier is fixed as '18', which is Petition No. : 223/11 Page No. 10 of 17 Chani Ram & Ors. Vs. Rais Ahmed & Ors.
fairly representing the purchasing capacity of a victim in a stable economy. In the ascertainment of purchasing capacity of the victim, age of the claimant has no relevant because of the fact that it has no nexus with the assessment of the loss of dependency. Significantly, the Apex Court in the case of Reshma Kumari & Ors. Vs. Madan Mohan & Ors. 2013 (5) Scale has followed the age of the victim as a factor for selecting the multiplier. Specifically, in the selection of multiplier for the age upto '15' the Apex Court never considered the age of the claimants as a relevant factor. Therefore, this Court finds no reason to adopt a different formula for the victim who is above '15' of age, whereas the relevant factors have been adopted by the Apex Court such as (i) age of the deceased (ii) income of the deceased and (iii) number of dependents. The Apex Court, while formulating the relevant factors for the assessment of loss of dependency, the age of the claimants never considered as a factor. Finally, in the assessment of dependency, the Courts/Tribunals 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 proper factor for selecting the correct multiplier.
19. Following the case law (supra) for calculating the loss of dependency, the multiplier is to be applied with reference to the age of the deceased. As per the High School Certificate, the date of birth of the deceased was 31.01.1984.
Therefore, he was more than 25 years of age at the time of accident. Hence, a multiplier of '17' is taken for calculating the loss of dependency. Using the multiplier of '17', the total loss of dependency comes to Rs. 39,609/ x 17 = 6,73,353/ which is rounded off to Rs. 6,73,400/. I therefore, award Rs. 6,73,400/ to the petitioners towards "Loss of Dependency". Petition No. : 223/11 Page No. 11 of 17
Chani Ram & Ors. Vs. Rais Ahmed & Ors.
LOVE AND AFFECTION :
20. Petitioners at this stage of their life have lost their son/brother. The love and care which they could have got from him cannot be measured in terms of money. In view of the law laid down in Rajesh & Ors. Vs. Rajbir Singh & Ors. 2013 (6) Scale 563, I award Rs. 1,00,000/ to the petitioners towards "Love and Affection".
FUNERAL EXPENSES :
21. It was held in the case of "Rajesh & Ors. Vs. Rajbir Singh & Ors. 2013 (6) Scale 563" that the funeral expenses does not mean the fee paid in the Crematorium or fee paid for the use of space in the Cemetery. There are many other expenses in connection with the 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 expense. 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/. Following the case law (Supra), I award Rs. 25,000/ to the petitioners towards "Funeral Expenses".
LOSS OF ESTATE :
22. I award a sum of Rs. 10,000/ to the petitioners towards "Loss of Estate".Petition No. : 223/11 Page No. 12 of 17
Chani Ram & Ors. Vs. Rais Ahmed & Ors.
23. The total compensation in favour of the petitioners is calculated as under :
1) LOSS OF DEPENDENCY = Rs. 6,73,400/
2) LOSS OF LOVE AND AFFECTION = Rs. 1,00,000/
3) FUNERAL EXPENSES = Rs. 25,000/
4) LOSS OF ESTATE = Rs. 10,000/ ============ TOTAL = Rs. 8,08,400/ ============ L I A B I L I T Y
24. As the offending vehicle was being driven by respondent no. 1 so, primary liability to compensate the petitioner remain with that of respondent no. 1. Since the vehicle was owned by respondent no. 1 so, he becomes vicariously liable to compensate the petitioner. It is an admitted position on record that the vehicle was insured with respondent no. 2, therefore, respondent no. 2 becomes contractually liable to compensate the petitioner for the above mentioned amount.
In the instant case no evidence has been brought by the Insurance Company to show that there was any breach of insurance policy by the Respondent no.1 or he was not having Driving License. Thus, I am of the view that Respondent no.2 is liable to pay compensation to the petitioner.
25. Issue no. 2 is accordingly decided in favour of the petitioners and against the respondent no.3.
Petition No. : 223/11 Page No. 13 of 17
Chani Ram & Ors. Vs. Rais Ahmed & Ors.
R E L I E F
27. In view of my findings on issues, I award Rs. 8,08,400/ (Rs. Eight Lakh Eight Thousand Four Hundred only) to the petitioner no.2 i.e. Smt. Kalawati as compensation with interest @ 9% per annum from the date of filing the petition till realisation of the amount.
Out of this awarded amount, a sum of Rs. 6,00,000/ is directed to be deposited in the form of Fixed Deposit in the name of the petitioner no.2 in the following phased manner :
1. Rs. 1,00,000/ for a period of 1 years.
2. Rs. 1,00,000/ for a period of 2 years.
3. Rs. 1,00,000/ for a period of 3 years.
4. Rs. 1,00,000/ for a period of 4 years.
5. Rs. 1,00,000/ for a period of 5 years.
6. Rs. 1,00,000/ for a period of 6 years.
Deposition of awarded amount with STATE BANK OF INDIA, Saket Court Branch, New Delhi.
28. In terms of the directions given by Hon'ble High Court in case titled "Rajesh Tyagi Vs. Jaibir Singh and Ors." bearing FAO number 842/2003 decided on 08.06.2009, UCO Bank/ State Bank of India has agreed to open a Special Fixed Deposit Account for the victims of road accidents.
29. As per orders of Hon'ble High Court in case titled "New India Assurance Co. Ltd Vs. Ganga Devi & Ors bearing MAC. App. 135/2008" as well as Petition No. : 223/11 Page No. 14 of 17 Chani Ram & Ors. Vs. Rais Ahmed & Ors.
in another case titled as " Union of India V/s Nanisiri" bearing M.A.C. Appeal No. 682/2005 dated 13.01.2010, directions were given to the Claims Tribunal to deposit part of the awarded amount in fixed deposit in a phased manner depending upon the financial status and financial needs of the petitioners.
30. In consonance to the idea by which part of the awarded amount is ordered to be kept in fixed deposit / savings account by Hon'ble High Court, Respondent no.2 is directed to deposit the awarded amount in favour of the petitioners with State Bank of India, Saket Courts Complex Branch, against account of petitioner.
within a period of 30 days from today, failing which respondent no.2 shall be liable to pay future interest @ 12% per annum till realization (for the delayed period).
31. Upon the aforesaid amount being deposited, the State Bank of India, Saket Court Complex, New Delhi, is directed to keep the awarded amount in the "fixed deposit / saving account'' in the following manner:
(i) The interest on the fixed deposit be paid to the petitioner by Automatic Credit of interest of their saving bank accounts with State Bank of India, Saket Court Branch, New Delhi.
(ii) Withdrawal from the aforesaid account shall be permitted to petitioner after due verification and the Bank shall issue photo identity Card to the petitioner to facilitate her identity.
Petition No. : 223/11 Page No. 15 of 17
Chani Ram & Ors. Vs. Rais Ahmed & Ors.
(iii) No cheque book be issued to petitioner without the permission of this Court.
(iv) The original fixed deposit receipts shall be retained by the Bank in safe custody. However, the original Pass Book shall be given to the petitioners alongwith the photocopy of the FDR's.
(v) The original fixed deposit receipts shall be handed over to petitioner at the end of the fixed deposit period.
(vi) No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the permission of this Court.
(vii)Half yearly statement of account be filed by the Bank in this Court.
(viii)On the request of petitioner, the Bank shall transfer the Savings Account to any other branch of State Bank of India, according to their convenience.
(ix) Petitioner shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit Account to Branch Manager, State Bank of India, Saket Courts Complex Branch, New Delhi.
DIRECTIONS FOR THE RESPONDENT NO.2
32. Respondent no.2 is directed to file the compliance report of its having deposited the awarded amount with State Bank of India, Saket Court Branch in this Tribunal within a period of 30 days from today.
33. The Respondent no.2 shall intimate to the petitioner no.2 about its having Petition No. : 223/11 Page No. 16 of 17 Chani Ram & Ors. Vs. Rais Ahmed & Ors.
deposited the cheques in her favour in terms of the award, at the address of the petitioner no.2 mentioned at the title of the award, so as to facilitate her to withdraw the same.
34. Copy of this award / judgment be given to the petitioner no.2 who is directed to furnish the same to the Manager of State Bank of India, Saket Court Branch for necessary compliance after their having received the notice of the deposit of awarded amount from the respondent no.2.
35. The case is now fixed for compliance by the respondent no.2 for 14.11.2014.
Announced in the open court
on 14th Day of October, 2014 (K S MOHI)
Presiding Officer : MACT
South Distt. : Saket Courts
New Delhi : 14.10.2014
Petition No. : 223/11 Page No. 17 of 17