Delhi District Court
Smt. Meena Devi (Age 47 Yrs. Mother) vs Sh. Arvind Kumar Jain (Driver) on 21 December, 2012
IN THE COURT OF SH. ARUN BHARDWAJ
PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS TRIBUNALII,
DWARKA COURTS, NEW DELHI
MACT NO. 140/12/11
IN THE MATTER OF :
1. Smt. Meena Devi (Age 47 yrs. Mother)
W/o Sh. Rajendra Singh
2. Sh. Rajendra Singh (Age 52 yrs. Father)
S/o late Sh. Jaynarayan Singh
3. Ms. Anupam Kumari (Age 23 yrs. Sister)
D/o Sh. Rajendra Singh
4. Ms. Anjali Kumari (Age 19 yrs. Sister)
D/o Sh. Rajendra Singh
5. Master Aditya Raj (Age 14 yrs. Brother)
S/o Sh. Rajendra Singh
All Residents of:
H.No. 12, Village Chakmakhan
Post Office - Padmaul
P.S. Kurhani, Distt. Mujaffarpur
Bihar.
(Petitioner no. 5 being minor, is presented through
his mother Smt. Meena Devi/Natural Guardian/
Petitioner No. 1).
...... Petitioners
Versus
1. Sh. Arvind Kumar Jain (Driver)
S/o Sh. B.L. Jain
R/o RZ7A/9, Puran Nagar
MACT No. 140/12/11 Smt. Meena Devi & Ors. v. Sh. Arvind Kumar & Ors. Page 1 of 15
Palam Colony, New Delhi110045
At present: RZB29, Gali No. 7
Raj Nagar, Pankha Road, New Delhi.
2. M/s. Elecon Cargo Pvt. Ltd. (Owner)
N264270, Raghubir Nagar
New Delhi110027.
3. National Insurance Company Ltd.
Div. No. 10, Flat No. 101106, BMC House
Connought Place, New Delhi.
........ Respondents
FILED ON : 09.09.2011
RESERVED ON : 19.12.2012
DECIDED ON : 21.12.2012
: J U D G M E N T :
1. This is a claim petition filed under Section 166 and 140 of the Motor Vehicles Act, 1988.
2. Petitioner No. 1 is the mother, Petitioner No. 2 is the father, Petitioner No. 3, 4 are the sisters and Petitioner No. 5 is the minor brother of late Sh. Krishna Nandan Kumar who suffered fatal injuries in a road traffic accident on 25.05.11.
3. Respondent no.1 is the driver, Respondent no.2 is the owner and Respondent No. 3 is the insurer of the offending vehicle.
Case of Petitioners:
4. It is stated that on 25.05.11, at about 10.30 a.m., Sh. Krishna Nandan Kumar (since deceased) alongwith his friend namely Sh. Yetendra Kumar was going to Gurgaon at MACT No. 140/12/11 Smt. Meena Devi & Ors. v. Sh. Arvind Kumar & Ors. Page 2 of 15 Nokia Money Company from his house by Scooter bearing no. DL4SBE8782 (Eterno) which was being driven by Sh. Yetendra Kumar at a normal speed and on correct side of the road.
5. It is stated that when the two reached Dwarka Link Road, Pushpanjali Farm House, New Delhi, a Maruti Car bearing no. DL9CQS0498, driven by its driver/respondent no. 1 at a high speed, in a rash and negligent manner came from backside and hit the scooter with a great force.
6. It is stated that as a result of this accident Sh. Krishna Nandan Kumar came under front wheel of Maruti car and sustained grievous injuries all over his body. He was immediately taken to AIIMS Trauma Centre, New Delhi by the PCR Van where he died during course of treatment.
7. It is stated that FIR No. 83/11 under Section 279/337/304 A of IPC is registered against Respondent No. 1 at P.S. Kapashera, New Delhi.
8. It is stated in this claim petition that at the time of accident deceased was 25 years of age and was employed with M/s. T.M. Inputs and Services Pvt. Ltd., Gurgaon and was getting a salary of Rs. 11,778/ per month and besides this, he was taking coaching classes at home from which source he had an income of Rs. 12,000/ to 15,000/ per month making total income of Rs. 24,696/ per month on an average.
9. It is stated that the deceased was an income tax assessee. Claimants were solely dependent upon the income of the deceased.
MACT No. 140/12/11 Smt. Meena Devi & Ors. v. Sh. Arvind Kumar & Ors. Page 3 of 1510. In these circumstances claimants have claimed a compensation of Rs. 50 lacs with interest @ 12% p.a. from the date of filing of the claim petition till its realization. Case of Respondent No. 1 and 2:
11. Common written statement was filed by Respondent No. 1 and 2 stating that Respondent No. 1 was driving his Maruti car no. DL9CQS0498 at a normal speed, following norms and rules of traffic and all of a sudden a DTC bus which was in front of the car of Respondent No. 1 suddenly applied brakes due to which car of Respondent No. 1 was damaged and driver of DTC bus escaped from the spot and police falsely implicated answering respondent in present case.
12. Rest of the contents of claim petition were denied and it was stated that the driver was having a valid and effective driving license.
Case of Insurance Company:
13. Insurance company also filed its written statement denying averments made in the claim petition but admitted that car bearing no. DL9CQS0498 was insured with answering respondent vide policy no. 11211110123212 for a period from 26.05.10 to 25.05.11 in the name of Respondent No. 2 subject to terms and conditions of the policy.
14. From the pleadings of parties, following issues were framed: (1) Whether deceased Krishna Nandan received fatal injuries on 25.5.2011 due to the rash or negligent driving of vehicle no.
MACT No. 140/12/11 Smt. Meena Devi & Ors. v. Sh. Arvind Kumar & Ors. Page 4 of 15DL9CQS0498 by R1. OPP (2) Whether the petitioners are entitled to claim compensation if so, what amount and from whom? OPP (3) Relief.
Evidence on behalf of Petitioners:
15. Father of the deceased, Sh. Rajendra Singh entered in the witness box as PW1. He stated similar facts in his evidence by way of affidavit which were already stated in the claim petition. Election ICard of the deceased, PAN Card, Bihar School Board Examination marks sheet etc. were collectively exhibited as Ex. PW1/1.
16. In cross examination PW1 deposed that he is not an eye witness to the accident; he is jobless and is an agriculturalist.
17. Suggestions contrary to his case were denied by him.
18. Second witness examined by petitioners was Sh. Hatendra Kumar, PW2 (the name of this witness is Sh. Yetendra Kumar but by clerical mistake he is described as Sh. Hatendra Kumar). He is an eye witness of the accident. He filed his evidence by way of affidavit stating therein that on 25.05.11, at 10.30 a.m., he alongwith his friend late Sh. Krishna Nandan Kumar was going to Gurgaon by his Scooter no. DL4SBE8782 driven by him at a normal speed and they were hit from behind by offending vehicle bearing no. DL9C QS0498 near Link Road, Pushpanjali and offending vehicle MACT No. 140/12/11 Smt. Meena Devi & Ors. v. Sh. Arvind Kumar & Ors. Page 5 of 15 was being driven in a rash and negligent manner.
19. In cross examination, PW2 deposed that he had successfully received compensation of Rs. 40,000/ for injuries suffered in this accident. The witness was cross examined by counsel for Respondent No 1 and 2 as well as by counsel for insurance company but nothing worth noticing came on record in his cross examination.
20. Third witness examined on behalf of petitioners was Sh. Harsh Gupta, HR Recruitment of TMI Inputs Pvt. Ltd. He proved letter of appointment given to the deceased as Ex. PW3/2, details of salary annexed with the appointment letter as Ex. PW3/3, attendance record for the month of May, 2011 as Ex. PW3/4, salary certificate of the deceased as Ex. PW3/5, slip of HDFC Bank as Ex. PW3/6, letter dated 23.08.11 written by DGM, Staff and Key Account Operations as Ex. PW3/7.
21. In cross examination, PW3 deposed that deceased had joined services on 11.05.11. He was shop demonstrator/promoter. Salary was given by cheque as well as by account transfer as all the employees had bank account in HDFC Bank.
22. Fourth witness examined on behalf of petitioners was Mohd. Reayaz Haider, Senior Tax Assistant who produced ITR of the deceased for assessment year 200910 and 201011 as Ex. PW4/12 respectively.
23. No witness was examined by any other party.
24. Arguments were addressed by Sh. A.C. Jha, learned Counsel for petitioner, Sh. P.S. Rana, learned Counsel for MACT No. 140/12/11 Smt. Meena Devi & Ors. v. Sh. Arvind Kumar & Ors. Page 6 of 15 Respondent No.1 and 2 and Sh. Vivekanand Rana, learned Counsel for insurance company.
25. Counsel for petitioners argued that rash and negligent driving of driver of offending vehicle was proved from the evidence of PW2. For age of deceased, reliance is placed on PAN Card and for income, reliance is placed on ITRs as per which income of the deceased was Rs. 1,55,550/ p.a. He argued that there are five dependents.
26. On the other hand, counsel for insurance company argued that multiplier should be on the basis of age of mother of the deceased and as her age was 50 years multiplier of 13 should be adopted. He further argued that 50% should be deducted for personal expenses of the deceased as he was a bachelor.
27. No arguments were addressed by counsel for Respondent No. 1 and 2.
28. On the basis of pleadings of parties, evidence on record and arguments addressed, issuewise findings are as under: ISSUE NO. 1:
29. Burden of proving this issue is on the petitioners.
30. For succeeding in a claim petition filed under Section 166 of Motor Vehicles Act, it is for the petitioners to prove that the vehicle which caused the accident was being driven rashly and negligently by its driver.
31. This is sine qua non for getting the relief.
32. Petitioners have examined an eye witness of the MACT No. 140/12/11 Smt. Meena Devi & Ors. v. Sh. Arvind Kumar & Ors. Page 7 of 15 accident. PW2 Sh. Yetendra Kumar has deposed that on the date of accident their motorcycle was hit from backside by the offending vehicle which was being driven at a high speed and in a rash and negligent manner.
33. Respondent No. 1 and 2 denied in their written statement that the accident took place due to rash and negligent driving of Respondent No. 1 but inspite of cross examining this eye witness by counsel for driver and owner nothing could be elicited from him to show that the accident had taken place due to own negligence of scooterist where the deceased was a pillion rider.
34. Respondent No. 1 did not enter in the witness box to prove his innocence.
35. In Ranu Bala Paul & Ors. v. Bani Chakraborty & Ors. 1999 ACJ 634, the Hon'ble Gawhati High Court has observed as under: "In deciding a matter tribunal should bear in mind the caution struck by the Apex Court that a claim before the Motor Accidents Claims Tribunal is neither a criminal case nor a civil case. In a criminal case in order to have conviction, the matter is to be proved beyond reasonable doubt and in a civil case the matter is to be decided on the basis of preponderance of evidence, but in a claim before the Motor Accidents Claims Tribunal the standard of proof is much below than what is required in a criminal case as well as in a civil case. No doubt before the tribunal there must be some material on the basis of which the tribunal can arrive or decide things necessary to be decided for awarding compensation. But the tribunal MACT No. 140/12/11 Smt. Meena Devi & Ors. v. Sh. Arvind Kumar & Ors. Page 8 of 15 is not expected to take or to adopt the nicety of a civil or of a criminal case. After all, it is a summary inquiry and this is a legislation for the welfare of the society"
36. This case was noticed by Hon'ble High Court of Delhi in the case titled as Cholamandalam M.S. General Insurance Co. Ltd. v. Kamlesh: 2009 (3) AD (Delhi) 310 where adverse inference was drawn because the driver of the offending vehicle had not appeared in the witness box to corroborate his defence taken in the written statement. It was noted that there is nothing on record to show that the claimant had any enmity with the driver of offending vehicle so as to falsely implicate him in the case.
37. In the case of National Insurance Co. Ltd. v. Vijay Laxmi & Ors. MAC APP. No. 375/06 dated 05.07.12, the Hon'ble High Court of Delhi has held as under: "8. In Bimla Devi and Ors. v. Himachal Road Transport Corporation and Ors., (2009) 13 SC 530, the Supreme Court held that in a petition under Section 166 of the Act, the Claimants were merely to establish their case on the touchstone of preponderance of probability and holistic view is to be taken while dealing with the Claim Petition under the Motor Vehicles Act. Para 15 of the report is extracted hereunder: "15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the MACT No. 140/12/11 Smt. Meena Devi & Ors. v. Sh. Arvind Kumar & Ors. Page 9 of 15 touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied."
9. The report in Bimla Devi (Supra) was relied on by the Supreme Court in its latest judgments in Parmeshwari v. Amir Chand (2011) 11 SCC 635 and Kusum Lata v. Satbir, (2011) 3 SCC 646."
38. In the case of National Insurance Company Ltd. v. Pushpa Rana & Ors.: 2009 ACJ 287, the Hon'ble High Court of Delhi has held that: "The last contention of the appellant insurance company is that the respondentsclaimants should have proved negligence on the part of the driver and in this regard the counsel has placed reliance on the judgment of the Hon'ble Apex Court in Oriental Insurance Co. Ltd. v. Meena Variyal (Supra). On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced: (i) certified copy of the criminal record of criminal case in F.I.R No. 955 of 2004, pertaining to involvement of the offending vehicle; (ii) criminal record showing completion of investigation of police and issue of chargesheet under Sections 279/304A, Indian Penal Code against the driver; (iii) certified copy of F.I.R., wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of the deceased. These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under the Motor Vehicles Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Hence, this contention of the counsel for the appellant also falls face down. There is ample evidence on record to MACT No. 140/12/11 Smt. Meena Devi & Ors. v. Sh. Arvind Kumar & Ors. Page 10 of 15 prove negligence on the part of the driver."
39. Therefore, this issue is decided in favour of petitioners and against the respondents. ISSUE NO. 2:
40. As per ITRs, date of birth of the deceased is 11.02.1986. The date of accident is 25.05.11. Therefore, deceased was 25 years and three months of age at the time of accident.
41. As per ITRs income of the deceased was Rs. 1,55,000/. Deceased has five dependents. Therefore, though he was a bachelor but still 1/4th deduction towards personal expenses will have to be made in view of large number of dependents.
42. Once 1/4th is deducted from Rs. 1,55,000/ contribution to the family would be Rs. 1,16,662/ p.a.
43. Since there are dependents aged 14 years and others who are younger than the deceased, multiplier of 18 on the basis of age of deceased will be applicable. Therefore, Loss of Dependency would be Rs. 20,99,916/ (i.e. Rs. 1,16,662/ x 18).
44. In the case of New India Assurance Co. Ltd. v. Bharat Singh MAC APP. No. 137/12 dated 08.08.12, the Hon'ble High Court of Delhi has held that when full compensation is awarded towards loss of dependency, only a nominal sum is to be awarded towards loss of love and affection.
45. It is further held that the trend of the Hon'ble High MACT No. 140/12/11 Smt. Meena Devi & Ors. v. Sh. Arvind Kumar & Ors. Page 11 of 15 Courts and the Hon'ble Supreme Court is to grant a sum of Rs. 25,000/ under the head of loss of love and affection.
46. Such a sum was granted by the Hon'ble Supreme Court in Sunil Sharma v. Bachittar Singh (2011) 11 SCC 425 and in Baby Radhika Gupta v. Oriental Insurance Co. Ltd. (2009) 17 SCC 627 towards love and affection.
47. Therefore, for Love and Affection, petitioners are given a compensation of Rs. 25,000/.
48. For Loss of Estate, petitioners are given a sum of Rs. 10,000/ and for Cremation Charges, they are given a compensation of Rs. 10,000/.
49. Therefore, total compensation payable to the petitioners would be Rs. 21,44,916/ which shall be payable with interest @ 7.5% per annum (this is the rate of interest which is being awarded by Hon'ble High Court of Delhi at present) from the date of filing of this claim petition which is 09.09.11 till its deposit.
50. Compensation given vide interim award, if given to the petitioners, will be deducted from this compensation now finally awarded in favour of petitioners.
51. Insurance company has not proved any defence. Therefore, compensation is to be paid by insurance company which be paid within 30 days from today under intimation to the petitioners by registered post.
52. Following directions are given for apportionment of compensation: (1) 40%, out of the total compensation MACT No. 140/12/11 Smt. Meena Devi & Ors. v. Sh. Arvind Kumar & Ors. Page 12 of 15 awarded, with proportionate interest, shall be payable in favour of Petitioner No. 1, mother of the deceased. This payment shall be deposited by the insurance company directly with State Bank of India, Dwarka Courts, New Delhi and the cheque will be in the name of SBI A/c. Meena Devi. Out of this, 10% shall be released in her Saving Bank Account to be opened in State Bank of India, Dwarka Courts, New Delhi. Balance compensation will be kept in 10 FDRs of equal amount for a period of 1 to 10 years. Monthly interest will be credited in her Saving Bank Account regularly.
(2) 15%, out of the total compensation awarded, with proportionate interest, shall be payable in favour of Petitioner No. 2, father of the deceased. This payment shall be deposited by the insurance company directly with State Bank of India, Dwarka Courts, New Delhi and the cheque will be in the name of SBI A/c. Rajendra Singh. Out of this, 10% shall be released in his Saving Bank Account to be opened in State Bank of India, Dwarka Courts, New Delhi. Balance compensation will be kept in 3 FDRs of equal amount for a period of 1 to 3 years. Monthly interest will be credited in his Saving Bank Account regularly.
(3) 15%, out of the total compensation awarded, with proportionate interest, shall be payable in favour of Petitioner No. 3, sister of the deceased. This payment shall be deposited by the insurance company directly with State Bank of India, Dwarka Courts, New Delhi and the cheque will be in the name of SBI A/c. Anupam Kumari. Out of this, 10% shall be released in her Saving Bank Account to be opened in State Bank of India, Dwarka Courts, New Delhi. Balance compensation will be kept MACT No. 140/12/11 Smt. Meena Devi & Ors. v. Sh. Arvind Kumar & Ors. Page 13 of 15 in 3 FDRs of equal amount for a period of 1 to 3 years. Monthly interest will be credited in his Saving Bank Account regularly.
(4) 15% out of the total awarded compensation with proportionate interest shall be payable in favour of petitioner no. 4, minor sister of the deceased. This payment shall be deposited by the insurance company directly with State Bank of India, Dwarka Courts, New Delhi and the cheque will be in the name of SBI A/c. Anjali Kumari. This amount will be kept in FDR till he attains the age of 21 years. However, monthly interest will be credited in Saving Bank Account of petitioner no. 1 regularly so that she can use it for welfare of petitioner no. 4.
(5) 15% out of the total awarded compensation with proportionate interest shall be payable in favour of petitioner no. 5, minor brother of the deceased. This payment shall be deposited by the insurance company directly with State Bank of India, Dwarka Courts, New Delhi and the cheque will be in the name of SBI A/c. Master Aditya Raj. This amount will be kept in FDR till he attains the age of 21 years. However, monthly interest will be credited in Saving Bank Account of petitioner no. 1 regularly so that she can use it for welfare of petitioner no. 5.
(6) All the original FDRs shall remain with the bank. Only copies thereof will be given to the petitioners. However, pass book will be given to the petitioners. No cheque book shall be issued to the petitioners.
(7) No loan or advance will be given against these deposits.
(8) FDRs shall not be prematurely encashed MACT No. 140/12/11 Smt. Meena Devi & Ors. v. Sh. Arvind Kumar & Ors. Page 14 of 15 without leave of this Tribunal.
(9) Petitioners shall cooperate with the bank by providing requisite documents and by completing required formalities for opening Saving Bank and FDR Accounts.
53. Copy of this order be given dasti to all the parties.
54. A copy of this order be also sent to the State Bank of India, Dwarka Courts, New Delhi.
55. Before depositing the compensation with the Bank, the insurance company will inform this Tribunal and only thereafter the Bank will accept the compensation cheques.
56. File be consigned to the Record Room.
Announced in the open Court On the 21st Day of December, 2012.
(ARUN BHARDWAJ) PRESIDING OFFICER MOTOR ACCIDENT CLAIMS TRIBUNALII DWARKA COURTS: NEW DELHI MACT No. 140/12/11 Smt. Meena Devi & Ors. v. Sh. Arvind Kumar & Ors. Page 15 of 15