Delhi District Court
( vs Common on 27 November, 2014
IN THE COURT OF MS. GEETANJLI GOEL, PO: MOTOR ACCIDENT
CLAIMS TRIBUNAL2, PATIALA HOUSE COURTS, NEW DELHI
Suit No.87/14
Date of Institution: 24.01.2014
IN THE MATTER OF:
1. Arti Nayak
W/o Late Shri Virender Nayak @ Bunty
2. Yuvraj
S/o Late Shri Virender Nayak @ Bunty
3. Bina Devi
W/o Shri Shankar Nayak
4. Shankar Nayak
S/o Late Shri Govind Nayak
5. Ujjwal
S/o Late Shri Virender Nayak @ Bunty
All r/o :
H. No. 1289, Munna Meet Wali Gali
Near Appu Ghar, Kapashera
New Delhi110037.
Also at Village Mungarauda Sikandarapur
AnchalJamalpur
Distt. Munger, Bihar811214
Suit No. 87/14, 86/14 & 88/14 Page No. 1 of 46
(Petitioners No.2 and 5 being minor
represented through their mother
Smt. Arti Nayak/Natural
Guardian/petitioner No.1) ...Petitioners
SUIT No.86/14
Date of Institution: 24.01.2014
IN THE MATTER OF:
Arti Nayak
W/o Late Shri Virender Nayak @ Bunty
H.No.1289, Munna Meet Wali Gali
Near Appu Ghar, Kapashera
New Delhi110037.
Also at Village Mungarauda Sikandarapur
Anchal Jamalpur
Distt. Munger, Bihar811214. ....Petitioner
SUIT No.88/14
Date of Institution: 24.01.2014
IN THE MATTER OF:
Master Yuvraj
S/o Late Shri Virender Nayak @ Bunty
R/o H.No.1289, Munna Meet Wali Gali
Near Appu Garh, Kapashera
New Delhi110037.
Also at Village Mungarauda Sikandarapur
AnchalJamalpur
Distt. Munger, Bihar811214
Suit No. 87/14, 86/14 & 88/14 Page No. 2 of 46
(Petitioner being minor represented through
His mother Smt. Arti Nayak/
Natural Guardian) ...Petitioner
Versus
COMMON RESPONDENTS
1. Azad Nayak
S/o Shri Israil Khan
R/o VPO: Palpur
Tehsil: Tijara Alwar Distt.
Rajasthan
2. M/s Vikash Road Carriers Ltd.
Shop No.4, Hero Honda Chowk
Gurgaon, Haryana
Also at: AG103
Sanjay Gandhi Transport Nagar
North Delhi110042.
3. Reliance General Insurance Co. Ltd.
Plot No.60, Okhla Industrial Estate
Phase3, Opp. SBI Bank
New Delhi110020. ...Respondents
Final Arguments heard : 29.10.2014.
Award reserved for : 27.11.2014
Date of Award : 27.11.2014
Suit No. 87/14, 86/14 & 88/14 Page No. 3 of 46
AWARD
1. Vide this common judgmentcumaward, I proceed to decide three
petitions bearing No.88/14, 87/14 and 86/14 filed u/s 166 and 140 of Motor
Vehicle Act, 1988, as amended uptodate (hereinafter referred to as the Act)
for grant of compensation arising out of the same road accident.
2. It is the case of the petitioners that on 29.08.2013 at about 12.30 a.m.
the petitioner Smt. Arti Nayak along with her husband Shri Virender Nayak @
Bunty (since deceased) and her son Yuvraj was going towards Dhaula Kuan
from Naraina on motor cycle No.DL9SZ9006, which was being driven by Shri
Virender Nayak @ Bunty at a normal speed and on correct side of the road. It
is averred that when the motorcycle reached near Naraina Flyover starting
towards Dhaula Kuan, New Delhi, in the meanwhile a truck bearing
registration No.HR55J7578 which was being driven by its driver/respondent
No.1, at a very high speed, rashly, negligently, without taking necessary
precautions, without proper lookouts, violating the traffic rules and without
blowing any horn came from Maya Puri side and hit the motorcycle with a
great force. It is averred that as a result the motor cycle fell down on the road
and they sustained grievous injuries and they were immediately taken to DDU
Hospital Hari Nagar, New Delhi, where their MLC No.21561/2013, MLC No.
21425/2013 and MLC No.21295/2013 were prepared by the doctors and
Virender Nayak @ Bunty was declared as brought dead. It is averred that the
principle of res ipsa loquitur is attracted in the case. It is averred that the
Suit No. 87/14, 86/14 & 88/14 Page No. 4 of 46
accident was caused due to the rash and negligent driving of the respondent
No.1 and if the respondent No.1 had been careful, cautious and vigilant
enough the accident could have been very easily averted and the petitioners
Arti Nayak and Yuvraj would have been saved from sustaining grievous
injuries and the deceased would not have died an unnatural and untimely
death in the accident. It is stated that in respect of the accident FIR No.
197/2013 under Sections 279/337/304A IPC was registered at PS Naraina. It is
averred that the respondents No.1, 2 and 3 being the driver, owner and
insurance company of the offending Truck are liable to pay compensation to
the petitioners. It is averred that the respondent No.1 was driving the offending
truck during the accident in the course of employment, supervision,
management and control of the respondent No.2 and the respondent No.3
being the insurance company is vicariously liable to pay compensation to the
petitioners.
FACTS OF SUIT No.87/14
3. It is averred that the post mortem of the deceased was conducted at mortuary DDU Hospital, Hari Nagar, New Delhi. It is averred that at the time of the accident, the deceased was 27 years of age and was possessing sound mind, health and robust physique and was not suffering from any kind of ailment and was not addicted to any vice. It is averred that he was a vegetable seller and selfemployed and he was earning Rs.15,000/ per month to Rs. Suit No. 87/14, 86/14 & 88/14 Page No. 5 of 46 20,000/ per month. It is averred that if he had not died in the accident, his income would have more than doubled and he would have lived a long life. It is averred that the deceased was quite energetic, foresighting person and was leading a peaceful and comfortable life with the petitioners. It is averred that the deceased left behind his wife Arti Nayak, aged about 20 years, his son Yuvraj aged 03 years, his mother Bina Devi, aged 45 years and his father Shankar Nayak, aged 50 years, who are the only legal heirs of the deceased. It is averred that the petitioner No.1 is pregnant. It is averred that the petitioners were solely and fully dependent upon the income and guidance of the deceased. The entire life of the petitioners had become dark and gloomy. It is averred that there was sadness in the family of the petitioners and the losses suffered by the petitioners were quite irreparable and no amount could compensate the losses suffered by the petitioners. It is stated that an amount of Rs.50,000/ was incurred on transportation and last rites of the deceased. It is prayed that an amount of Rs.35,00,000/ be awarded as compensation in favour of the petitioners and against the respondents. FACTS OF SUIT No.86/14
4. It is averred that the petitioner Arti Nayak sustained grievous injuries as per the medical record and her treatment was still continuing as an outdoor patient. It is stated that an amount of Rs.50,000/ was incurred on medical treatment. It is averred that at the time of the accident the petitioner was 20 Suit No. 87/14, 86/14 & 88/14 Page No. 6 of 46 years old. It is averred that the petitioner is a housewife and she could not attend her work as a house wife for a period of three months due to the injuries sustained in the accident. It is averred that the petitioner had suffered great mental pain, shock and trauma. It is prayed that an amount of Rs. 5,00,000/ be awarded as compensation on account of grievous injuries sustained by the petitioner in the accident, mental pain and agony, amount incurred on medicines, special diet, attendant's charges, conveyance, loss of income, loss of future income, loss of enjoyment and other general and specific damages as admissible under the various provisions of the M. V. Act in favour of the petitioner and against the respondents. FACTS OF SUIT No.88/14
5. It is averred that the petitioner Master Yuvraj sustained grievous injuries as per the medical record and his treatment was still continuing as an outdoor patient. It is stated that an amount of Rs.50,000/ was incurred on medical treatment. It is averred that at the time of the accident the petitioner was 3 years of age and possessing sound mind, health and robust physique. It is averred that he was leading a peaceful and comfortable life with his family. It is averred that the family of the petitioner had incurred a huge amount and had suffered great mental pain, shock and trauma. It is prayed that an amount of Rs.5,00,000/ be awarded as compensation on account of grievous injuries sustained by the petitioner in the accident, mental pain and agony, loss of Suit No. 87/14, 86/14 & 88/14 Page No. 7 of 46 studies, amount incurred on medicines, special diet, conveyance, attendant's charges and other general and specific damages as admissible under the various provisions of the Motor Vehicle Act in favour of the petitioner and against the respondents.
6. Reply was filed on behalf of the respondent No.1 making the preliminary submissions that the petitions were patently untenable as the same did not disclose the requisite cause of action on part of the petitioners, nor could the allegations contained therein be implied to attribute culpability to the respondent No.1. It was averred that the petitions did not disclose any injury suffered by the petitioners due to any negligent act on the part of the respondent No.1 and as such the petitioners were not entitled to any compensation. It was averred that the petitioners had been unable to sufficiently establish any relation to the deceased. The averments made in the claim petitions were denied. The place, date and time of the accident were admitted. It was averred that the fact of contributory negligence was to be considered wherein the negligence on the part of the deceased was to be seen.
7. Reply was filed on behalf of the respondent No.2 making the preliminary submissions that the petitions were patently untenable as the same did not disclose the requisite cause of action on part of the petitioners, nor could the allegations contained therein be implied to attribute culpability to the Suit No. 87/14, 86/14 & 88/14 Page No. 8 of 46 respondent No.1. It was averred that the petitions did not disclose any injury suffered by the petitioners due to any negligent act on the part of the respondent No.2 and as such the petitioners were not entitled to any compensation. It was averred that the petitioners had been unable to sufficiently establish any relation to the deceased. It was averred that the respondent No.2 could not be held liable for the alleged negligence on the part of the respondent No.1. The averments made in the claim petitions were denied. The place, date and time of the accident were admitted. It was averred that the fact of contributory negligence was to be considered wherein the negligence on the part of the deceased was to be seen.
8. Written statement was filed in all the three claim petitions on behalf of the respondent No.3 taking the preliminary objections that the petitions did not disclose any cause of action against the respondent No.3 and there was no privity of contract between the petitioners and the respondent No.3, hence the respondent No.3 was not liable to pay any compensation to the petitioners for the alleged accident. It is averred that the alleged involvement of the vehicle in the accident was never intimated by the insured to the respondent No.3 at any point of time whereas immediate information of the accident is to be given to the respondent No.3 and as such the respondent No.3 is not liable to indemnity the insured. It is averred that the offending vehicle was not having a valid permit when the alleged accident occurred and the driver of the offending vehicle was not having a valid and effective DL at the time of the accident. It is Suit No. 87/14, 86/14 & 88/14 Page No. 9 of 46 averred that the amount of compensation claimed by the petitioners is highly exorbitant, irrational and without any basis. It is averred that the motorcyclist of motorcycle No.DL9SZ9006 was solely negligent for the said accident and if the deceased had been driving the motorcycle in a cautious manner, the accident would not have happened. It is averred that the petitions are bad for non joinder of parties and the insurance company and owner of the motorcycle are the necessary parties. The averments made in the claim petitions were denied. It is averred that the insurance policy/cover note bearing No. 1315722334003182 was issued in the name of M/s Vikas Road Carriers Ltd. in respect of the vehicle bearing No.HR55J7578 for the period 19.10.2012 to 18.10.2013. It is denied that the petitioners are entitled for compensation from the respondent no. 3.
9. The claim petitions were filed on 24.1.2014 and thereafter the Detailed Accident Report was filed by the IO on 25.2.2014. From the pleadings of the parties, the following issues were framed vide order dated 31.03.2014: Suit No.87/14
1. Whether the deceased sustained fatal injuries in the accident which occurred on 29.08.2013 at about 12.30 am near Naraina Flyover, towards Dhaula Kuan, caused by rash and negligent driving of vehicle No.HR 55J 7578 (Truck) driven by respondent no.1, owned by respondent no.2 and insured with respondent no.3? OPP.Suit No. 87/14, 86/14 & 88/14 Page No. 10 of 46
2. Whether the LRs of deceased are entitled for compensation? If so, to what amount and from whom?
3.Relief.Suit No.86/14
1. Whether the petitioner / injured sustained injuries in the accident which occurred on 29.08.2013 at about 12.30 am near Naraina Flyover, towards Dhaula Kuan, caused by rash and negligent driving of vehicle No.HR 55J 7578 (Truck) driven by respondent no.1, owned by respondent no.2 and insured with respondent no.3? OPP.
2. Whether the petitioner/ injured is entitled for compensation?
If so, to what amount and from whom?
3.Relief.
Suit No.88/14
1. Whether the petitioner / injured sustained injuries in the accident which occurred on 29.08.2013 at about 12.30 am near Naraina Flyover, towards Dhaula Kuan, caused by rash and negligent driving of vehicle No. HR 55J 7578 (Truck) driven by respondent no.1, owned by respondent no.2 and insured with respondent no.3? OPP.
2. Whether the petitioner/ injured is entitled for compensation? If so, to what amount and from whom?
3.Relief.
Suit No. 87/14, 86/14 & 88/14 Page No. 11 of 46 Vide order dated 21.5.2014 the suits No.87/14, 88/14 and 86/14 were consolidated for the purpose of evidence and suit No.87/14 was treated as the lead case. An application was filed on behalf of the petitioners in suit No.87/14 under order 1 rule 10 CPC for bringing on record Ujjawal as a petitioner which was allowed vide order dated 24.7.2014.
10. Ms. Arti Nayak appeared in the witness box as PW1 and led her evidence by way of affidavit which is Ex.PW1/A reiterating the averments made in the claim petitions. PW1 deposed that she had sustained grievous injuries in the accident as per medical record. She was taken to DDU Hospital, Hari Nagar, Delhi where her MLC No.21425/2013 was prepared by the doctors. She stated that she was a housewife and she could not attend her work for a period of three months due to the injuries sustained in the accident. She stated that she had incurred Rs.10,000/ on her medical treatment, Rs.5,000/ on her special diet and Rs.5,000/ on her conveyance. She stated that her son Master Yuvraj aged 3 years had sustained grievous injuries in the accident as per the medical record. He was taken to DDU Hospital, Hari Nagar, Delhi where his MLC No.21295/2013 was prepared by the doctors. She stated that her husband was 27 years old. He was a vegetable seller and was earning Rs. 15,000/ to Rs.20,000/ per month. She stated that if the deceased had not died in the accident, his income would have more than doubled and he would have lived a long life. She stated that he was quite energetic, foresighting person and was leading a peaceful and comfortable life with the petitioners. Suit No. 87/14, 86/14 & 88/14 Page No. 12 of 46 She stated that her husband left behind herself as his wife, her minor son namely Yuvraj aged 3 years, her minor son Ujjwal born on 01.02.2014 after the death of her husband, her motherinlaw Bina Devi, aged 45 years and his father Shankar Nayak, aged 50 years, who were the only LRs of the deceased. She stated that the petitioners were solely and fully dependent upon the income and guidance of the deceased. She stated that the entire life of the petitioners had become dark and gloomy. There was sadness in the family of the petitioners. She stated that the losses suffered by the petitioners were quite irreparable and no amount could compensate the losses suffered by the petitioners. She stated that she had suffered financial loss due to the sudden and untimely death of her husband in the road accident and the petitioners had also suffered loss of love and affection, loss of consortium, company, guidance and support and the entire life of the petitioners had become dark and gloomy. She stated that her husband used to pay his entire income to her for household expenses and they were fully dependent on the income of her husband and had no other source of income. She stated that after the untimely death of her husband, the entire family had been rendered shelterless and they had been deprived of the guidance for the future prospects of the children. She stated that her husband was possessing sound mind, good health and robust physique and he was not suffering from any kind of ailment nor was addicted to any vice. She stated that she had incurred Rs. 50,000/ on transportation and last rites of the deceased. Copy of PAN card of the deceased is Ex.PW1/1, copy of DL of the deceased is Ex.PW1/2, copy of Suit No. 87/14, 86/14 & 88/14 Page No. 13 of 46 election card of the deceased is Ex.PW1/3, copy of education certificates of the deceased is Ex.PW1/4 (colly), copy of the Aadhar card of PW1 is Ex.PW1/5, copy of Aadhar card of Master Yuvraj is Ex.PW1/6, copy of birth certificate of Master Ujjwal is Ex.PW1/7, copy of Aadhar card of Smt. Bina Devi is Ex.PW1/8, copy of Aadhar card of Shanker Nayak is Ex.PW1/9, copy of disability certificate of Shanker Nayak is Ex.PW1/10 and the attested DAR is Ex.PW1/11 (colly). PE was closed on 21.5.2014. RE was closed on 24.7.2014.
11. I have heard the Learned Counsel for the petitioners as well as the Learned Counsel for the respondent No.3 and perused the record. The petitioner No.1 Arti Nayak was also examined on 21.5.2014, petitioner No.4 in suit No.87/14 on 24.7.2014 and the petitioner No.3 in suit No.87/14 on 28.8.2014 in terms of the judgment of the Hon'ble High Court on 11.1.2013 in MACA No.792/2006 titled Oriental Insurance Co. Ltd. v. Ranjit Pandey and Ors.
12. My findings on the specific issues are as under:
Issue No. 1
13. As the petition has been filed U/s 166 M.V Act it was incumbent upon the petitioners to prove that they/ the deceased sustained injuries in an accident caused due to the rash and negligent driving by the driver of the Suit No. 87/14, 86/14 & 88/14 Page No. 14 of 46 offending vehicle. To determine the negligence of the driver of the offending vehicle it has been held in National Insurance Company Ltd. vs Pushpa Rana & Another 2009 Accident Claims Journal 287 as follows:
"The last contention of the appellant insurance company is that the respondents/claimants 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 Company 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 FIR No.955 of 2004, pertaining to involvement of offending vehicle (ii) criminal record showing completion of investigation of police and issue of charge sheet under sections 279/304A, Indian Penal Code against the driver;
(iii) certified copy of FIR, wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of deceased.
These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under the Motor Vehicle 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 prove negligence on part of the driver."
It is established law that in a claim petition under Motor Vehicle Act, the standard of proof to establish rash and negligent driving by the driver of the offending vehicle is not at par with the criminal case where such rashness and negligence is required to be proved beyond all shadow of reasonable doubt. In Kaushnamma Begum and others v. New India Assurance Company Suit No. 87/14, 86/14 & 88/14 Page No. 15 of 46 Limited, it was inter alia held by the Hon'ble Supreme Court that the issue of wrongful act or omission on the part of the driver of the motor vehicle involved in the accident has been left to a secondary importance and mere use or involvement of motor vehicle in causing bodily injury or death to a human being or damage to property would make the petition maintainable under Sections 166 and 140 of the Motor Vehicle Act.
14. The case of the petitioners is that on 29.08.2013 at about 12.30 a.m. the petitioner Smt. Arti Nayak along with her husband Shri Virender Nayak @ Bunty (since deceased) and her son Yuvraj was going towards Dhaula Kuan from Naraina on motor cycle No.DL9SZ9006, which was being driven by Shri Virender Nayak @ Bunty at a normal speed and on correct side of the road. It was averred that when the motorcycle reached near Naraina Flyover starting towards Dhaula Kuan, New Delhi, in the meanwhile a truck bearing registration No.HR55J7578 which was being driven by its driver/respondent No.1, at a very high speed, rashly, negligently, without taking necessary precautions, without proper lookouts, violating the traffic rules and without blowing any horn came from Maya Puri side and hit the motorcycle with a great force. It was averred that as a result the motor cycle fell down on the road and they sustained grievous injuries and they were immediately taken to DDU Hospital Hari Nagar, New Delhi, where their MLC No.21561/2013, MLC No.21425/2013 and MLC No.21295/2013 were prepared by the doctors and Virender Nayak @ Bunty was declared as brought dead. It was averred that the accident was Suit No. 87/14, 86/14 & 88/14 Page No. 16 of 46 caused due to the rash and negligent driving of the respondent No.1 and if the respondent No.1 had been careful, cautious and vigilant enough the accident could have been very easily averted and the petitioners Arti Nayak and Yuvraj would have been saved from sustaining grievous injuries and the deceased would not have died an unnatural and untimely death in the accident. It was stated that in respect of the accident FIR No.197/2013 under Sections 279/337/304A IPC was registered at PS Naraina. In para 2 of her affidavit Ex.PW1/A PW1 had reiterated the mode and manner of the accident as stated in the claim petition.
15. The IO had filed Detailed Accident Report, on which reliance has been placed by the petitioners, containing the criminal record consisting of copy of charge sheet; copy of tehrir, copy of FIR; copy of DDs, copy of arrest memo, copy of seizure memos; copy of mechanical inspection report of the offending vehicle Canter bearing No.HR55J7578 and of the motorcycle No.DL9SZ9006, copy of notice under Section 91 Cr.P.C., copy of notice under Section 133 MV Act, copy of TIP proceedings, copy of RC of the offending vehicle with its verification report, copy of the insurance policy of the offending vehicle and its verification report and copy of DL and verification report of the DL of the respondent No.1, copy of certificate of fitness of the offending vehicle with its verification report, copy of permit of the offending vehicle with its verification report, copy of MLC of Yuvraj and of Arti and of Virender Nayak @ Bunty, copy of post mortem report in respect of the Suit No. 87/14, 86/14 & 88/14 Page No. 17 of 46 deceased, copy of identification statement and handing over memo in respect of the dead body, copy of order on the application for release of the offending vehicle on superdari along with a copy of the superdarinama and copies of statements under Section 161 Cr.P.C. and copies of documents in respect of the petitioners. As per the FIR No.197/13 under sections 279/337/304A IPC, PS Naraina the case was registered on the basis of complaint of SI Mukesh Rana (on DD). As per the charge sheet the respondent No.1 has been charge sheeted for the offence under sections 279/337/338/304A IPC.
16. The respondents No.1 and 2 had filed separate written statements containing similar averments that the petitions were patently untenable as the same did not disclose the requisite cause of action on part of the petitioners, nor could the allegations contained therein be implied to attribute culpability to the respondent No.1 or the respondent No.2. It was averred that the petitions did not disclose any injury suffered by the petitioners due to any negligent act on the part of the respondent No.1. The place, date and time of the accident were admitted. It was averred that the fact of contributory negligence is to be considered wherein the negligence on the part of the deceased is to be seen. The respondent No.2 had also stated that he could not be held liable for the alleged negligence on the part of the respondent No.1. During cross examination by the learned counsel for the insurance company PW1 admitted that she was the pillion rider on the motorcycle. She stated that her husband was wearing a helmet at the time of the accident. She stated that her son Suit No. 87/14, 86/14 & 88/14 Page No. 18 of 46 Yuvraj aged about 3 years, was sitting in front of her husband on the motorcycle. She admitted that the offending vehicle had hit the motorcycle from behind. She stated that the motorcycle was at the speed of 3040 k.m/hr at the time of the accident. She admitted that the accident had taken place on the top of the flyover. It was 12.30 a.m. She could not say even by approximation what was the speed of the offending truck at the time of the accident. She denied the suggestion that the motorcycle was being driven by the deceased at high speed. She admitted that she had also fallen down when the offending vehicle hit the motorcycle. One passerby on a motorcycle had informed the police. She stated that the driver of the truck had fled from the spot with the truck after the accident. She stated that she had seen the number of the truck herself. She stated that she was conscious and sustained injuries on her arm and leg but she did not sustain any fracture. She stated that her son had sustained injuries on the leg and on the head volunteered he was unable to walk properly. She admitted that neither she nor her son got any disability in the accident. She stated that her husband was in possession of DL and copy of the same is on record. She denied the suggestion that the accident had not taken place due to the rash and negligent driving of the driver of the offending truck. During crossexamination by the learned counsel for the respondents No.1 and 2 PW1 stated that they were coming from Punjabi Bagh and going towards Dhaula Kuan where she lives. She denied the suggestion that the accident had taken place due to the negligence of her husband or that her husband was under the influence of intoxicating substance. Suit No. 87/14, 86/14 & 88/14 Page No. 19 of 46
17. PW1 thus admitted that she was the pillion rider on the motorcycle. She stated that her husband was wearing a helmet at the time of the accident and nothing has been brought on record to dispute the same. She stated that her son Yuvraj aged about 3 years, was sitting in front of her husband on the motorcycle. She admitted that the offending vehicle had hit the motorcycle from behind. She stated that the motorcycle was at the speed of 3040 k.m/hr at the time of the accident. She admitted that the accident had taken place on the top of the flyover and it was 12.30 a.m. She could not say even by approximation what was the speed of the offending truck at the time of the accident. She admitted that she had also fallen down when the offending vehicle hit the motorcycle. One passerby on a motorcycle had informed the police. She stated that the driver of the truck had fled from the spot with the truck after the accident. It is pertinent that PW1 stated that she had seen the number of the truck herself and that she was conscious. She stated that her husband was in possession of DL and copy of the same is also on record. There is even nothing to show that the deceased was under the influence of intoxicating substance. It was sought to be contended on behalf of the respondents that the deceased was guilty of contributory negligence but the alleged offending vehicle had hit the motorcycle from behind and also no suggestion was put to PW1 that the deceased had stopped the motorcycle suddenly. A perusal of the mechanical inspection report of the motorcycle shows extensive damage to the backside of the motorcycle though there was damage to the front left side indicator light and glass as well. It is also Suit No. 87/14, 86/14 & 88/14 Page No. 20 of 46 pertinent that a suggestion was put to PW1 that the deceased was driving the motorcycle at high speed which she denied but if that were so the question of the alleged offending vehicle hitting the motorcycle from behind would not arise. Thus nothing material has come out in the crossexamination of PW1 to doubt her testimony.
18. The respondents No.1 and 2 who are the driver and owner of the offending vehicle have not adduced any evidence to dispute the version put forth by the petitioners or in the criminal record. The criminal record has been placed on record which shows that the respondent No.1 has been charged for the offence under Sections 279/337/338/304A IPC. In Basant Kaur and others v. Chattar Pal Singh and others 2003 ACJ 369 MP (DB) it was observed that registration of criminal case against the driver of the offending vehicle was enough to record a finding that the driver of the offending vehicle was responsible for causing the accident. The respondents have also not led any evidence to prove any other version of the accident. There is no evidence from the respondents to disprove the particulars of the accident or the involvement of vehicle No.HR55J7578. In view of the testimony of PW1 and the documents on record which have remained unrebutted, the negligence of the respondent No.1 has been prima facie proved.
19. It was stated that as a result of the impact of the truck hitting the motorcycle, the motor cycle fell down on the road and the petitioners Arti Suit No. 87/14, 86/14 & 88/14 Page No. 21 of 46 Nayak and Yuvraj sustained grievous injuries and they were immediately taken to DDU Hospital Hari Nagar, New Delhi, where their MLC No.21561/2013, MLC No.21425/2013 and MLC No.21295/2013 were prepared by the doctors and Virender Nayak @ Bunty was declared as brought dead. The MLCs of the petitioners Arti Nayak and Yuvraj are on record which show the injuries sustained by them. The post mortem report in respect of the deceased Virender Nayak is also on record as per which the cause of death was due to haemmorhagic shock subsequent to Road Traffic Accident and all injuries were ante mortem in nature and the same in duration. Thus it stands established that the petitioners/ deceased had sustained injuries in the alleged accident. This issue is accordingly decided in favour of the petitioners and against the respondents.
Issue No.2
20. Since issue No.1 has been decided in favour of the petitioners they would be entitled to compensation as per the provisions of the Act. COMPENSATION IN SUIT No.87/14
21. The petitioners are the legal representatives of the deceased being the wife, minor children and parents of the deceased. PW1 was not cross examined on the point of dependency. During examination by the Tribunal Suit No. 87/14, 86/14 & 88/14 Page No. 22 of 46 the petitioner No.1 Smt. Arti Nayak stated that she is 20 years old. She stated that at the time of the accident she was not working. Even at present she was not working. She stated that apart from herself the deceased was survived by one son and parents in law. She stated that she was also pregnant at the time of the accident and subsequently one son had been born to her. Thus being the wife the petitioner No.1 would be regarded as dependent on the deceased as also the petitioners No.2 and 5 being minor children. During examination by the Tribunal the petitioner No.3 Smt. Bina Devi stated that she is 50 years old at present. She stated that she was not working at the time of the accident and even at present she was not working. She stated that apart from the deceased she has one son and one daughter. It is true that the petitioner No.3 has one other son but being the mother she would be regarded as dependent on the deceased. During examination by the Tribunal the petitioner No.4 Shri Shankar Nayak stated that he is about 60 years old at present. He stated that he was not working and was dependent upon the deceased. He stated that his other son was doing the work of selling vegetables and his daughter was married. The petitioner No. 4 had stated that he was not working and the copy of the disability certificate in respect of the petitioner No.4 is Ex.PW1/10 as per which he was deaf. Thus he would also be regarded as dependent on the deceased. As such all the petitioners would be regarded as dependent on the deceased. Suit No. 87/14, 86/14 & 88/14 Page No. 23 of 46
22. The petitioners have claimed loss of dependency on the basis that the deceased was at the time of the accident 27 years of age and was possessing sound mind, health and robust physique and was not suffering from any kind of ailment and was not addicted to any vice. It was averred that he was a vegetable seller and selfemployed and he was earning Rs.15,000/ per month to Rs.20,000/ per month. It was averred that if he had not died in the accident, his income would have more than doubled and he would have lived a long life. It was averred that the deceased was quite energetic, fore sighting person and was leading a peaceful and comfortable life with the petitioners. It was averred that the petitioners were solely and fully dependent upon the income and guidance of the deceased. The entire life of the petitioners had become dark and gloomy. It was averred that there was sadness in the family of the petitioners and the losses suffered by the petitioners were quite irreparable and no amount could compensate the losses suffered by the petitioners. The petitioner No.1 in paras 5 to 10 of her affidavit Ex.PW1/A had deposed to that effect. She stated that her husband was 27 years old. He was a vegetable seller and was earning Rs.15,000/ to Rs. 20,000/ per month. She stated that if the deceased had not died in the accident, his income would have more than doubled and he would have lived a long life. She stated that he was quite energetic, foresighting person and was leading a peaceful and comfortable life with the petitioners. She stated that the petitioners were solely and fully dependent upon the income and guidance of the deceased. She stated that the entire life of the petitioners had become Suit No. 87/14, 86/14 & 88/14 Page No. 24 of 46 dark and gloomy. There was sadness in the family of the petitioners. She stated that the losses suffered by the petitioners were quite irreparable and no amount could compensate the losses suffered by the petitioners. She stated that she had suffered financial loss due to the sudden and untimely death of her husband in the road accident and the petitioners had also suffered loss of love and affection, loss of consortium, company, guidance and support and the entire life of the petitioners had become dark and gloomy. She stated that her husband used to pay his entire income to her for household expenses and they were fully dependent on the income of her husband and had no other source of income. She stated that after the untimely death of her husband, the entire family had been rendered shelterless and they had been deprived of the guidance for the future prospects of the children. She stated that her husband was possessing sound mind, good health and robust physique and he was not suffering from any kind of ailment nor was addicted to any vice. Copy of PAN card of the deceased is Ex.PW1/1, copy of DL of the deceased is Ex.PW1/2, copy of election card of the deceased is Ex.PW1/3 and copy of education certificates of the deceased is Ex.PW1/4 (Colly).
23. During crossexamination by the learned counsel for the insurance company PW1 stated that her husband was a vegetable seller. Thus PW1 reiterated that her husband was a vegetable seller. However the petitioners have not placed on record any document to show what the deceased was doing or how much amount he was earning and there is nothing to show that Suit No. 87/14, 86/14 & 88/14 Page No. 25 of 46 the deceased was indeed earning Rs.15,000/ to Rs.20,000/ per month. In the absence of any documentary evidence the income of the deceased would have to be computed on the basis of minimum wages prevalent on the date of the accident i.e. 29.8.2013. The petitioners have placed on record the educational certificates of the deceased which show that he was class X pass. Accordingly the income of the deceased would be computed on the basis of minimum wages for a matriculate prevalent on the date of the accident which were Rs.9,386/ per month. Thus the income of the deceased is taken as Rs. 9,386/ p.m. for computation of loss of dependency.
24. It is the case of the petitioners that the deceased was 27 years of age at the time of the accident and it was so stated in the claim petition and PW1 had also deposed to that effect. Copy of the PAN card and DL in respect of the deceased are on record which show that the date of birth of the deceased was 15.2.1986. As such the deceased would have been more than 27 years old on the date of the accident i.e. 29.8.2013. As per the judgment of the Hon'ble Supreme Court in Sarla Verma's case the multiplier of 17 applies for calculating the loss of income where the age of the deceased is 26 to 30 years.
25. As observed above the dependents on the deceased are his wife, two children and parents. As per the judgment of the Hon'ble Supreme Court in Sarla Verma's case as the number of dependents was 5 there would be Suit No. 87/14, 86/14 & 88/14 Page No. 26 of 46 1/4th deduction towards personal and living expenses of the deceased. As regards the future prospects in Rajesh and Ors. v Rajbir Singh and Ors. 2013 (6) SCALE 563 the Hon'ble Supreme Court held as under:
"11. Since, the Court in Santosh Devi's case (supra) actually intended to follow the principle in the case of salaried persons as laid in Sarla Verma's case (supra) and to make it applicable also to the self employed 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. Addition should be 30% in case the deceased was in the age group of 40 to 50 years."
12.In Sarla Verma's case (supra), it has been stated that in the case of those above 50 years, there shall be no addition. Having regard to the fact that in the case of those selfemployed or on fixed wages, where there is normally no age of superannuation, we are of the view that it will only be just and equitable to provide an addition of 15% in the case where the victim is between the age group of 50 to 60 years so as to make the compensation just, equitable, fair and reasonable. There shall normally be no addition thereafter."
Suit No. 87/14, 86/14 & 88/14 Page No. 27 of 46 Thus the petitioners would be entitled to addition of 50% of the income towards future prospects as the deceased was less than 40 years of age. Accordingly the loss of dependency as per the monthly income i.e. Rs. 9,386/ is calculated as under :
Rs.9,386/ + Rs.4,693/ (50% future prospects) = Rs.14,079/ X 12 (annual) X 17 (multiplier) - 7,18,029/ (1/4th towards personal expenses) = Rs.21,54,087/ rounded off to Rs.21,54,000/.
26. The petitioners are also entitled to compensation for loss of love and affection, loss of consortium, loss of estate and funeral expenses. It was stated that an amount of Rs.50,000/ was incurred on transportation and last rites of the deceased. However there is nothing to show the same.
The total compensation is determined as under:
Loss of dependency : Rs.21,54,000/
Love and affection : Rs.1,00,000/
Loss of Consortium : Rs.50,000/
Loss of Estate : Rs.10,000/
Funeral expenses : Rs.10,000/
Total : Rs.23,24,000/
Suit No. 87/14, 86/14 & 88/14 Page No. 28 of 46
Thus, the total compensation would amount to Rs.23,24,000/. COMPENSATION IN SUIT No.86/14
27. The law is well settled that the compensation has to be awarded in personal injury cases under the following heads: (1) for loss of earnings during the period of treatment (2) loss of future earnings on account of permanent disability (3) expenses suffered by the injured on treatment, hospitalization, medicines, transportation, nourishing food etc. In addition, the injured is further entitled to nonpecuniary damages/general damages which include (1) damages for pain, suffering and trauma as a consequence of injuries and (2) loss of expectation of life.
MEDICINES AND MEDICAL TREATMENT
28. The case of the petitioner Arti Nayak is that as a result of the impact of the truck hitting the motorcycle on 29.8.2013, the motor cycle fell down on the road and the petitioners Arti Nayak and Yuvraj sustained grievous injuries and they were immediately taken to DDU Hospital Hari Nagar, New Delhi, where their MLC No.21561/2013, MLC No.21425/2013 and MLC No.21295/2013 were prepared by the doctors and Virender Nayak @ Bunty was declared as brought dead. It was averred that the petitioner sustained grievous injuries as per the medical record and her treatment was still continuing as an outdoor Suit No. 87/14, 86/14 & 88/14 Page No. 29 of 46 patient. It was stated that an amount of Rs.50,000/ was incurred on medical treatment. It was averred that at the time of the accident the petitioner was 20 years old. It was averred that the petitioner was a housewife and she could not attend her work as a house wife for a period of three months due to the injuries sustained in the accident. It was averred that the petitioner had suffered great mental pain, shock and trauma and the petitioner had claimed compensation on account of grievous injuries sustained by the petitioner in the accident, mental pain and agony, amount incurred on medicines, special diet, attendant's charges, conveyance, loss of income, loss of future income, loss of enjoyment and other general and specific damages as admissible under the various provisions of the M. V. Act. The petitioner in paras 2 and 3 of her affidavit Ex.PW1/A had deposed to that effect. She stated that she had incurred Rs.10,000/ on her medical treatment. The MLC of the petitioner is on record which shows the injuries sustained by the petitioner and the nature of injuries was opined to be simple. However there is nothing to show that the petitioner had got any disability due to the accident.
29. During crossexamination by the learned counsel for the insurance company PW1 stated that she was conscious and sustained injuries on her arm and leg but she did not sustain any fracture. She admitted that neither she nor her son got any disability in the accident. Thus PW1 stated that she was conscious and sustained injuries on her arm and leg but she did not sustain any fracture. She admitted that neither she nor her son got any disability in the Suit No. 87/14, 86/14 & 88/14 Page No. 30 of 46 accident. As such PW1 herself stated that she did not sustain any fracture and that she had not got any disability in the accident. The petitioner had stated that she had spent an amount of approximately Rs.10,000/ on her medical treatment. The petitioner had not filed any bills to show the expenditure on medical treatment. However the petitioner would have incurred some expenses towards medical treatment. Accordingly an amount of Rs.2,000/ is awarded towards medical treatment and expenses.
30. Note can also be taken of the fact that on account of the accident the petitioner may not have been able to perform her day to day duties towards her family and may not have been able to enjoy the amenities of life and would have undergone pain and suffering and that she was pregnant at the time of the accident. No document has been placed on record regarding expenditure on conveyance, special diet or attendant charges. The petitioner had stated in para 3 of her affidavit Ex.PW1/A that she had spent Rs.5,000/ on her special diet and Rs.5,000/ on her conveyance. There is however nothing to show any expenditure on these counts. There is also nothing to show that the injuries of the petitioner were such that she might have to incur extra expenditure on conveyance or attendant charges. However it can be taken note of that she might have had to spend some amount on special diet.
Suit No. 87/14, 86/14 & 88/14 Page No. 31 of 46 LOSS OF INCOME
31. It is the case of the petitioner that at the time of the accident she was 20 years old. It was averred that the petitioner was a housewife and she could not attend her work as a house wife for a period of three months due to the injuries sustained in the accident. It was averred that the petitioner had suffered great mental pain, shock and trauma and the petitioner had claimed compensation on account of loss of income and loss of future income as well. The petitioner in para 3 of her affidavit Ex.PW1/A had deposed to that effect. Thus the petitioner herself had stated that she was a housewife. She had stated that she could not attend to her work for a period of three months due to the injuries sustained in the accident. However the petitioner has not produced any document to show that she remained on bed rest for any particular period and there is nothing to show that she was advised bed rest for any particular period or that on account of the injuries sustained in the accident she was unable to work or to show the period for which she was not able to work. PW1 was not crossexamined on the aspect of loss of income. During examination by the Tribunal the petitioner stated that she was 20 years old. She stated that at the time of the accident she was not working. She stated that even at present, she was not working. She also stated that she was pregnant at the time of the accident. In the absence of any specific advice of the doctor notice can be taken of the fact that the petitioner may not have been able to perform her avocation for some period on account of the injuries sustained in the Suit No. 87/14, 86/14 & 88/14 Page No. 32 of 46 accident. Considering the facts and circumstances of the case the petitioner is held entitled to an amount of Rs.5,000/ consolidated on account of loss of income.
32. There is also nothing to show that the petitioner had suffered any disability on account of the injuries. The petitioner has not proved that she acquired any disability on account of the accident or that she is likely to suffer future loss of income on account of the injuries sustained in the accident and that the injuries would reduce her efficiency to work and thereby she would suffer loss of future income. Accordingly the petitioner cannot be held entitled to any amount on account of loss of future prospects.
33. In the facts and circumstances of the case and in view of the above discussion a lump sum amount of Rs.12,000/ would be just and reasonable. Accordingly an amount of Rs.12,000/ is awarded as compensation in favour of the petitioner.
COMPENSATION IN SUIT No.88/14
34. The case of the petitioner Master Yuvraj is that as a result of the impact of the truck hitting the motorcycle on 29.8.2013, the motor cycle fell down on the road and the petitioners Arti Nayak and Yuvraj sustained grievous injuries and they were immediately taken to DDU Hospital Hari Nagar, New Delhi, Suit No. 87/14, 86/14 & 88/14 Page No. 33 of 46 where their MLC No.21561/2013, MLC No.21425/2013 and MLC No. 21295/2013 were prepared by the doctors and Virender Nayak @ Bunty was declared as brought dead. It was averred that the petitioner sustained grievous injuries as per the medical record and his treatment was still continuing as an outdoor patient. It was stated that an amount of Rs.50,000/ was incurred on medical treatment. It was averred that at the time of the accident the petitioner was 3 years of age and was possessing a sound mind, health and robust physique. It was averred that he was leading a peaceful and comfortable life with his family. It was averred that the family of the petitioner had incurred a huge amount and had suffered great mental pain, shock and trauma and the petitioner had claimed compensation on account of grievous injuries sustained by the petitioner in the accident, mental pain and agony, loss of studies, amount incurred on medicines, special diet, conveyance, attendant's charges and other general and specific damages as admissible under the various provisions of the Motor Vehicle Act. PW1 in paras 2 and 4 of her affidavit Ex.PW1/A had deposed to that effect. The MLC of the petitioner is on record which shows the injuries sustained by the petitioner and the nature of injuries was opined to be grievous. The petitioner has placed certain documents on record though they were not proved which show that the petitioner had sustained fractures upper and lower tibial metaphyses, midshaft fibula. Thus the injuries were grievous in nature. However there is nothing to show that the petitioner had got any disability due to the accident.
Suit No. 87/14, 86/14 & 88/14 Page No. 34 of 46
35. During crossexamination by the learned counsel for the insurance company PW1 stated that her son had sustained injuries on the leg and on the head volunteered he was unable to walk properly. She admitted that neither she nor her son got any disability in the accident. Thus PW1 stated that her son had sustained injuries on the leg and on the head and volunteered that he was unable to walk properly. She admitted that neither she nor her son got any disability in the accident. Thus PW1 herself admitted that her son had not got any disability in the accident. The petitioner had stated that an amount of Rs. 50,000/ was spent on his medical treatment. However the petitioner has not filed any bills showing the expenditure on medical treatment. However the petitioner would have incurred some expenses on medical treatment. Accordingly an amount of Rs.5,000/ is awarded towards medical treatment and expenses.
PAIN AND SUFFERING AND LOSS OF AMENITIES OF LIFE
36. It has been held in Divisional Controller, K. S. R. T. C v Mahadeva Shetty and another AIR 2003 Supreme Court 4172 as under:
13."The damages for vehicular accidents are in the nature of compensation in money for loss of any kind caused to any person. In case of personal injury the position is different from loss of property. In the later case there is possibility of repair or restoration. But in the case of personal injury, the possibility of repair or restoration is practically nonexistent. In Parry V. Cleaver (1969 1 All. E. R. 555) Lord Morris stated as follows:Suit No. 87/14, 86/14 & 88/14 Page No. 35 of 46
"To compensate in money for pain and for the physical consequences is invariably difficult, but...... no other process can be devised than that of making monetary assessment."
The case of the petitioner is that as a result of the impact of the truck hitting the motorcycle on 29.8.2013, the motor cycle fell down on the road and the petitioner Yuvraj sustained grievous injuries and he was immediately taken to DDU Hospital Hari Nagar, New Delhi, where his MLC was prepared by the doctors. It was averred that the petitioner sustained grievous injuries as per the medical record and his treatment was still continuing as an outdoor patient. It was averred that at the time of the accident the petitioner was 3 years of age and was possessing a sound mind, health and robust physique. It was averred that he was leading a peaceful and comfortable life with his family. It was averred that the family of the petitioner had incurred a huge amount and had suffered great mental pain, shock and trauma and the petitioner had claimed compensation on account of grievous injuries sustained by the petitioner in the accident, mental pain and agony, loss of studies, amount incurred on medicines, special diet, conveyance, attendant's charges and other general and specific damages as admissible under the various provisions of the Motor Vehicle Act. The MLC of the petitioner is on record which shows the injuries sustained by the petitioner and the nature of injuries was opined to be grievous. The petitioner has placed certain documents on record though they were not proved which show that the petitioner had sustained fractures upper and lower tibial metaphyses, midshaft fibula. Thus Suit No. 87/14, 86/14 & 88/14 Page No. 36 of 46 the injuries were grievous in nature. However there is nothing to show that the petitioner had got any disability due to the accident. Looking at the nature of injuries and extent of treatment and that the accident pertains to the year 2013, the petitioner is awarded Rs.25,000/ (Rs.Twenty Five Thousand only) for pain and suffering.
37. The petitioner was stated to be 3 years of age at the time of the accident and it was so stated in the claim petition and PW1 had also deposed to that effect. Copy of birth certificate of the petitioner is on record as per which the petitioner was born on 7.12.2010. As such he would have been more than 2 years old on the date of the accident i.e. 29.8.2013. Notice can be taken of the fact that on account of the injuries sustained by him the petitioner may not have been able to enjoy the amenities of life. In the circumstances the petitioner is awarded a sum of Rs.10,000/ (Rs.Ten Thousand only) for loss of amenities of life. The petitioner cannot however be held to be entitled to any amount towards loss of expectation of life or towards disfiguration. CONVEYANCE AND SPECIAL DIET
38. Although the petitioner has not filed any document on record in order to prove the expenditure on conveyance however, notice can be taken of the fact that after the accident the petitioner was taken to DDU Hospital and that after discharge from hospital he might have hired the services of private Suit No. 87/14, 86/14 & 88/14 Page No. 37 of 46 conveyance as he would not have been able to use public conveyance. In the circumstances a sum of Rs.5,000/ (Rs.Five Thousand only) would be just and proper towards conveyance charges.
39. Although the petitioner has not proved that he was advised special diet but looking at the nature of injuries sustained by the petitioner notice can be taken of the fact that the petitioner might have taken diet rich in protein, vitamins and minerals for speedier recovery. In the circumstances the petitioner is awarded a sum of Rs.5,000/ (Rs.Five Thousand only) for special diet.
40. Although the petitioner has not produced any evidence to show that he incurred any expenses towards attendant charges, however looking to the nature of injuries the petitioner would have incurred some expenditure on attendant charges and a sum of Rs.6,000/ is awarded towards attendant charges.
LOSS OF STUDIES
41. It is the case of the petitioner that at the time of the accident he was 3 years of age and was possessing a sound mind, health and robust physique. It was averred that he was leading a peaceful and comfortable life with his family and his family had incurred a huge amount and had suffered great mental Suit No. 87/14, 86/14 & 88/14 Page No. 38 of 46 pain, shock and trauma and the petitioner had claimed compensation on account of loss of studies as well. PW1 in para 4 of her affidavit Ex.PW1/A had deposed to that effect. However there is nothing on record to show that the petitioner was studying at the time of the accident or that on account of the accident he missed out on his studies. PW1 was not crossexamined on this aspect. The petitioner has also not produced any document to show that he remained on bed rest for any particular period and there is nothing to show that he was advised bed rest for any particular period or that on account of the injuries sustained in the accident he was unable to go to school though it is not even stated that he was studying in any school or play school at the time of the accident. Considering the facts and circumstances of the case the petitioner is held entitled to an amount of Rs.5,000/ consolidated under this head.
42. There is also nothing to show that the petitioner had suffered any disability on account of the injuries. The petitioner has not proved that he acquired any disability on account of the accident or that he is likely to suffer future loss of income on account of the injuries sustained in the accident and that the injuries would reduce his efficiency to work and thereby he would suffer loss of future income. Accordingly the petitioner cannot be held entitled to any amount on account of loss of future prospects.
Suit No. 87/14, 86/14 & 88/14 Page No. 39 of 46 The total compensation is assessed as under:
Medicines and Medical treatment Rs.5,000/ Pain and suffering Rs.25,000/ Loss of Amenities of life Rs.10,000/ Conveyance Rs.5,000/ Special Diet Rs.5,000/ Attendant charges Rs.6,000/ Loss of studies Rs.5,000/ TOTAL Rs.61,000/ Thus the total compensation would be Rs.61,000/. RELIEF
43. The petitioners in suit No.87/14 are awarded a sum of Rs.23,24,000/ (Rs.Twenty Three Lacs Twenty Four Thousand only) and the petitioner Arti Nayak in suit No.86/14 is awarded a sum of Rs.12,000/ (Rs.Twelve Thousand only) and the petitioner Master Yuvraj in suit No.88/14 is awarded a sum of Rs.61,000/ (Rs.Sixty One Thousand only) along with interest @ 9% per annum from the date of filing of the claim petitions till its realization including, interim award, if any already passed against the respondents and in favour of the petitioners. In suit No.87/14 the petitioners 2 and 5 Master Yuvraj and Master Ujjwal are held entitled to 10% share each in the awarded amount; the petitioner No.3 Ms. Bina Devi would be entitled to 20% share in the awarded amount; the petitioner No.4 Shri Shankar Nayak would be entitled to 10% Suit No. 87/14, 86/14 & 88/14 Page No. 40 of 46 share in the awarded amount and the petitioner No.1 Smt. Arti Nayak would be entitled to 50% share in the awarded amount. As regards suit No.86/14 the respondent No.3 is directed to deposit the awarded amount in court by way of crossed cheque/ demand draft within 30 days of the passing of the award failing which it is liable to pay interest at the rate of 12% per annum for the period of delay. As regards suit No.88/14 the respondent No.3 is directed to deposit the awarded amount in court by way of crossed cheque/ demand draft within 30 days of the passing of the award failing which it is liable to pay interest at the rate of 12% per annum for the period of delay and the same be kept in FDR till the petitioner attains the age of majority and for 3 years thereafter.
44. For safeguarding the compensation amount from being frittered away by the claimants, directions have been given by Hon'ble Supreme Court for preserving the award amount in the case of Jai Prakash Vs. National Insurance Co. Ltd. and Others (2010) 2 Supreme Court Cases 607. In view of the directions contained in the above judgment the award amount is to be disbursed as follows:
a) The entire share of the petitioners No.2 and 5 in suit no. 87/14 be kept in FDRs in UCO Bank, Patiala House Court, New Delhi till they attain the age of majority and for 3 years thereafter. The entire share of the petitioner No.4 Shri Shankar Nayak be released to him by transferring it into his savings Suit No. 87/14, 86/14 & 88/14 Page No. 41 of 46 account in UCO Bank, Patiala House Court, New Delhi. 50% of the share of the petitioner No.3 Smt. Bina Devi be released to her by transferring it into her savings account in UCO Bank, Patiala House Court and 50% of the share of the petitioner No.3 be kept in FDR in UCO Bank, Patiala House Court, New Delhi for a period of 3 years. 20% of the share of the petitioner No.1 be released to her by transferring it into her savings account and the remaining amount out of her share be kept in FDRs in UCO Bank, Patiala House Court, New Delhi in the following manner:
1. Fixed deposit in respect of 10% for a period of one year.
2. Fixed deposit in respect of 10% for a period of two years.
3. Fixed deposit in respect of 10% for a period of three years.
4. Fixed deposit in respect of 10% for a period of four years.
5. Fixed deposit in respect of 10% for a period of five years.
6. Fixed deposit in respect of 10% for a period of six years.
7. Fixed deposit in respect of 10% for a period of seven years.
8. Fixed deposit in respect of 10% for a period of eight years.
b) The respondent No.3 is directed to deposit the amount directly by way of crossed cheque in terms of the above order in UCO Bank, Patiala House Court, New Delhi in the name of UCO Bank, Patiala House Court, New Delhi A/c Smt. Arti Nayak, Yuvraj, Bina Devi, Shankar Nayak and Ujjwal within 30 days of the passing of the award.
Suit No. 87/14, 86/14 & 88/14 Page No. 42 of 46
c) Cheque be deposited within thirty days herefrom under intimation to the petitioners. In case of default, the respondent No.3 shall be liable to pay further interest @ 12% per annum for the period of delay.
d) On the deposit of the award amount, the Branch Manager of UCO Bank, Patiala House Court, New Delhi is directed to prepare Fixed Deposit Receipts as ordered above and the balance amount be released.
e) The interest on the fixed deposits shall be paid monthly by automatic credit of interest in the savings account of the petitioner No.1.
f) The withdrawal from the aforesaid account shall be permitted to the petitioner No.1 after due verification and the bank shall issue photo identity card to the petitioner No.1 to facilitate her identity.
g) No cheque book shall be issued to the petitioner No.1 without the permission of the court.
h) The original fixed deposit receipts shall be retained by the bank in safe custody. However, the original pass book shall be given to the petitioner No.1 along with the photocopy of the fixed deposit receipts. Upon the expiry of period of FDR the bank shall automatically credit the maturity amount in the saving account of the beneficiary.
Suit No. 87/14, 86/14 & 88/14 Page No. 43 of 46
i) The original fixed deposit receipts shall be handed over to the petitioner No.1 on the expiry of the period of the fixed deposit receipts.
j) No loan, advance, or withdrawal shall be allowed on the said FDRs without the permission of the court.
k) On the request of the petitioners, the bank shall transfer the saving account to any other branch/bank, according to the convenience of the petitioners.
l) The petitioners shall furnish all the relevant documents for opening of the saving bank account and Fixed Deposit to Senior Manager of UCO Bank, Patiala House Court, New Delhi.
45. The petitioners shall file two sets of photographs along with their specimen signatures, out of which one set to be sent to the Nodal Officer, UCO Bank, Patiala House Court, New Delhi along with copy of the award by Nazir and the second set be retained to the court for further reference. The photographs be stamped and sent to the bank. The petitioners shall also file the proof of residence and furnish the details of the bank account with the Nazir within a week. The petitioners shall file their complete address as well as address of their counsel for sending the notice of deposit of the award amount. Suit No. 87/14, 86/14 & 88/14 Page No. 44 of 46 APPORTIONMENT OF LIABILITY:
46. The respondent No.1 is the driver, the respondent No.2 is the owner and the respondent No.3 is the insurer of the offending vehicle. Thus the respondents No.1, 2 and 3 are held jointly and severally liable. No evidence has been led on behalf of the respondent No.3. Respondent No.3 i.e. Reliance General Insurance Co. Ltd. being the insurance company in its reply had stated that the insurance policy/cover note bearing No.1315722334003182 was issued in the name of M/s Vikas Road Carriers Ltd. in respect of the vehicle bearing No.HR55J7578 for the period 19.10.2012 to 18.10.2013. There is no evidence on behalf of the respondent No.3 to show that there was any violation of the rules and terms of policy by the respondents No.1 and 2 and in fact the duly verified documents in respect of the offending vehicle were placed on record by the IO with the DAR. Hence, the respondent No.3 being the insurance company in respect of the offending vehicle is liable to pay the compensation on behalf of the respondents No.1 and 2. The respondent No.3 being the insurer is directed to deposit the award amount within 30 days with interest at the rate of 9% from the date of filing of the claim petitions till its realization in UCO Bank, Patiala House Courts, New Delhi failing which it is liable to pay interest at the rate of 12% per annum for the period of delay.
47. Nazir to report in case the cheques are not deposited within 30 days of the passing of the award/judgment. Nazir is directed to note the particulars of Suit No. 87/14, 86/14 & 88/14 Page No. 45 of 46 the award amount in the register today itself. The respondent No.3 shall deposit the award amount along with interest upto the date of notice of deposit to the claimants with a copy to their counsel and the compliance report shall be filed in the court along with proof of deposit of award amount, the notice of deposit and the calculation of interest on 27.02.2015. Attested copy of the award be given to the parties free of cost and a copy be also sent to the Nodal Officer, UCO Bank, Patiala House. File be consigned to record room.
Announced in open court
on this 27th day of November, 2014 (GEETANJLI GOEL)
PO: MACT2
New Delhi
Suit No. 87/14, 86/14 & 88/14 Page No. 46 of 46