Delhi District Court
Dr. Rajkumar Shyamananda Singh ... vs Vinay Katara & Ors. Page No. 1 Of 26 on 3 September, 2020
IN THE COURT OF MS. TYAGITA SINGH, PO, MACT (NE),
KARKARDOOMA COURTS, DELHI
MACT No. 14710/15
IN THE MATTER OF:
1. Dr. Rajkumar Shyamananda Singh (Husband of Deceased Smt.
S/o Late Rajkumar Bhubansana Singh Hijam Ibeyaima Devi)
R/o 744 Paul Metivier Drive
Ottawa Ontario K2J 3G4, Canada
Earlier R/o:
9, Corral Court, Whitby Ontario,
LIN 8E7, Canada
2. Ms. Sheetal Rajkumari (Daughter)
D/o Dr. Rajkumar Shyamananda Singh
R/o 744 Paul Metivier Drive
Ottawa Ontario K2J 3G4, Canada
Earlier R/o:
R/o 9, Corral Court, Whitby Ontario,
LIN 8E7, Canada
3. Ms. Seabird Rajkumari (now known as Sanah Rajkumari) (Daughter)
D/o Dr. Rajkumar Shyamananda Singh
R/o 461 Simcoe Street North
Oshawa, Ontario L1G 4T8, Canada
Earlier R/o:
R/o 9, Corral Court, Whitby Ontario,
LIN 8E7, Canada
4. Ms. Starry Rajkumari ( Minor) (Daughter)
D/o Dr. Rajkumar Shyamananda Singh
R/o 744 Paul Metivier Drive
Ottawa Ontario K2J 3G4, Canada
Earlier R/o:
R/o 9, Corral Court, Whitby Ontario,
LIN 8E7, Canada
........... Petitioners
MACT No. 14710/15 Dr. Raj Kumar Shyamananda Singh & Ors. Vs. Vinay Katara & Ors. Page No. 1 of 26
VERSUS
1. Sh. Vinay Katara (Owner of offending
S/o. Sh. Jitendra Kumar Katara vehicle no. DL 7 CK 9106)
R/o. B47/3, Top Floor, Dilshad Colony,
Delhi - 110095.
2. Sh. Amit Arora (Driver)
S/o. Sh. Baldev Raj Arora
R/o. 1911A, Despiyan Nagar,
Kotwali Bhor, Mathura, UP
3. Reliance General Insurance Co. Ltd. (Insurer)
202210, Second Floor, Mercantile House,
15, Kasturba Gandhi Marg,
Connaught Place, New Delhi110001
(Insurance Certificate / Cover Note No. 111000382551)
........ Respondents
Date of Institution of petition : 27.04.2012
Date of Previous Judgment/Order : 27.04.2018
Date of remand back from
Hon'ble High Court of Delhi : 21.11.2019
Date of Arguments : 25.08.2020
Date of Judgment / Order : 03.09.2020
AWARD
Vide this Judgment / Award, I shall decide the MACT Claim Petition u/s.
166 of Motor Vehicles Act, 1988 (for short M. V. Act) filed by the Petitioners
against Respondents as mentioned in the memo of parties.
FACTS OF THE CASE
1. This claim petition has arisen out of application under section 166 & MACT No. 14710/15 Dr. Raj Kumar Shyamananda Singh & Ors. Vs. Vinay Katara & Ors. Page No. 2 of 26 140 of M. V. Act, 1988 filed by the petitioners. Brief facts of the case are that the deceased Smt. Hijam Ibeyaima Devi, an Indian born Canadian National, had come to visit India, and she alongwith her daughter Ms. Seabird Rajkumari (now known as Sanah Rajkumari) and other tourists, had gone to visit Vrindavan. On 19.01.2012 at about 9:30 PM, when the deceased, her daughter and her relatives were going towards their tourist bus on foot, near Ambh Beauty Parlor at Patharpura, one car Hyundai Verna No. DL 7 CK 9106 came from the wrong side, being driven in rash and negligent manner, and hit the deceased and her daughter. Smt. Hijam Ibeyaima Devi received grievous injuries and was taken to the nearby Hospital 'Brij Health Care' at Mathura, UP and after first aid, she was immediately removed from the said hospital, as her condition was very serious, and she was shifted / admitted to Apollo Hospital, Delhi on 20.01.2012. Due to the injuries suffered in the accident, she died on 21.01.2012 at around 5 PM in the Apollo Hospital, Delhi. Regarding the accident, FIR No. 23/12 dated 22.01.2012 U/s. 279/304 A IPC was registered at PS Vrindavan, Distt. Mathura, UP.
WS / Reply of Respondents
2. The Respondent no. 1 and 2 filed WS / Reply denying the averments mentioned in the petition and contended that the petition is not maintainable and there is no cause of action for filing the same. They stated that they have been falsely implicated in the case and they have nothing to do with the accident and no accident took place due to the negligence of respondent no. 2 or with the vehicle of respondent no. 1. They further stated that at the time of accident, the vehicle in question was duly insured with the insurance company.
3. Respondent no. 3 / insurance company filed the WS / Reply in which MACT No. 14710/15 Dr. Raj Kumar Shyamananda Singh & Ors. Vs. Vinay Katara & Ors. Page No. 3 of 26 it was stated that the respondent had issued insurance policy No. 1302712311003207 for the period from 11.07.2011 to 10.07.2012 on the representation of Mr. Vinay Katara / Owner of vehicle no. DL 7 CK 9106. It was admitted that the insurance was valid on the date of accident.
ISSUES
4. From the pleadings of the parties, following issues were framed by the Ld. Predecessor, vide order dated 05.10.2013:
(i) Whether deceased Smt. Hijam Ibeyaima Devi died on account of injuries sustained in accident taking place on 19.01.2012 at about 9:30 PM at near Ambh Beauty Parlor and Boutique at Pathar Pura, Mathura, UP within the jurisdiction of PS Vrindaban, Distt. Mathura, UP due to rash and negligent driving of vehicle No. DL7CK9106 by respondent No. 1?OPP
(ii) Whether petitioners are entitled to compensation? If so to what amount and from whom? OPP
(iii) Relief.
EVIDENCE
5. PW1 is Petitioner no.1 Dr. Rajkumar Shyamananda Singh, Husband of deceased. He tendered his affidavit of evidence as Ex.PW1/A and relied upon certain documents which were marked from Mark - A to Mark - K as he had not brought original documents. But all the said documents were later exhibited by PW2 Ms. Seabird @ Sanah Rajkumari in her evidence. PW1 exhibited copy of his driving licence as identity proof as Ex.PW1/14. He was duly cross - examined by respondents and discharged.
6. In his crossexamination by ld. counsels for respondents, PW1 stated that he was not an eye witness of the accident and he was in Canada at the time of MACT No. 14710/15 Dr. Raj Kumar Shyamananda Singh & Ors. Vs. Vinay Katara & Ors. Page No. 4 of 26 accident and his daughter informed him about the accident. He stated that his daughter had lodged complaint with PS Mathura after two days of the accident. He further stated that his wife was Doctorate in Geology and she also held a Diploma of Dental Assistant from Canada. He stated in his crossexamination dated 30.09.2014 that he was employed as Assessor with an airconditioning company TML supply company in Canada and was earning about 30,000/ Canadian Dollars (CAD) annually but after the accident and death of his wife, he went into depression and left his job, and recently he had started an immigration consultancy. During his crossexamination, he admitted that his elder daughter was employed but his two younger daughters were not employed and were studying at the time of accident. He also admitted that rate of payment of wages in Canada is fixed but he stated that it depends upon hours of duty done by an employee every fortnight.
7. Petitioner No. 3 Ms. Seabird Rajkumari, daughter of deceased (now known as Sanah Rajkumari) examined herself as PW2 and tendered her evidence affidavit as Ex. PW2/A. She exhibited the following documents on record: Sl. No. Exhibit No. Particulars 01 Ex. PW2/1 Photocopy of the passport of LRs of deceased (Colly) 02 Ex. PW2/2 Copy of FIR 03 Ex. PW2/3 Copy of police complaint of accident 04 Ex. PW2/4 Copy of medical record of Brij Health Care and Research Centre, Vrindaban 05 Ex. PW2/5 Copy of Medical Bill and documents of Apollo Hospital (Colly. 18 sheets) 06 Ex. PW2/6 Copy of MLC / Death Certificate of deceased issued by Apollo Hospital MACT No. 14710/15 Dr. Raj Kumar Shyamananda Singh & Ors. Vs. Vinay Katara & Ors. Page No. 5 of 26 07 Ex. PW2/7 Copy of certificate of embalming dead body by Apollo Hospital 08 Ex. PW2/8 Copy of Postmortem Report of deceased 09 Ex. PW2/9 Copy of NOC for taking the dead body to her native place 10 Ex. PW2/11 Copy of salary certificates of deceased from her (Colly. 2 employers in Canada sheets) 11 Ex. PW2/12 Copy of Death Certificate of Deceased issued by MCD 12 Ex. PW2/13 Copy of documents of Dead Body Transportation to Imphal and proof of travel expenses 13 Ex. PW2/14 Copy of Marriage Certificate of Deceased with Petitioner no.1 14 Ex. PW2/15 Copy of Birth Certificate of petitioner no.4 Starry Rajkumari 15 Ex. PW2/16 Copy of Passport of deponent / petitioner no.3
8. PW2 stated in her crossexamination dated 15.04.2015 that she had come to India from Canada at Imphal Airport on 29.12.2011 and she alongwith her mother (deceased), and her cousin sister had come to Delhi and thereafter, they had gone to Agra on a tourist bus, and they also went to Mathura and Vrindaban for visiting temples. She stated that the accident occurred on 19.01.2012 at about 9.30 p.m. near Amba Beauty Parlour, Vrindaban when Hyundai Verna Car No. DL 7CK 9106 came from wrong side, which was being driven by the driver in rash and negligent manner, and hit her mother due to which her mother suffered grievous injuries and was taken to a nearby hospital i.e. Brij Health Care, but her condition was very serious and she was shifted to Apollo Hospital, where she expired on 21.01.2012 at about 5 p.m. MACT No. 14710/15 Dr. Raj Kumar Shyamananda Singh & Ors. Vs. Vinay Katara & Ors. Page No. 6 of 26
9. PW2 further stated that she suffered minor scratches on her body and another lady who was hit by the vehicle, suffered injuries and bleeding on her nose but she does not know who was the other lady.
10. PW3 Ms. Rajkumari Rimasana Devi, niece of deceased, has also been examined as eye witness of the accident. She tendered her affidavit of evidence as Ex.PW3/A and stated that she had visited Vrindaban with her aunt (deceased) and PW2 Seabird Rajkumari on 19.01.2012. She stated that accident had occurred since the driver of Hyundai Verna Car came from wrong side while driving the vehicle in very rash and negligent manner, and hit her aunt and cousin sister. She further deposed that she had clicked the photographs of number plate of offending vehicle immediately after the accident. She relied upon all the documents exhibited on record by PW2. She exhibited the photographs of number plate of offending vehicle, taken with her mobile phone, as Ex.PW3/17. No other document was exhibited by her.
11. In her crossexamination by ld. defence counsels, PW3 stated that they had not informed the police immediately after the accident as the driver of offending vehicle had told that he will not help them if they inform the police. She stated that the place where accident occurred is a slope and not a straight road. She denied the suggestion that she had not informed the police since she had not witnessed the accident.
12. The Petitioners summoned and examined the medical witness i.e. Dr. Atul Haritwal, posted as Orthopedic Consultant at Brij Health Care and Research Centre, Vrindaban as PW4. He deposed that he was working as Orthopedics Surgeon with aforesaid hospital for more than 9 years. He stated that the patient was MACT No. 14710/15 Dr. Raj Kumar Shyamananda Singh & Ors. Vs. Vinay Katara & Ors. Page No. 7 of 26 firstly examined by RMO (Resident Medical officer) and thereafter, he examined the patient and the RMO told him that patient's attendant disclosed that she was injured due to the sliding vehicle and she was complaining of pain in abdomen and chest, and she had a wound over bilateral ankle. She was given primary first aid and wounds were stitched at ankle. The attendants of patient requested to refer the patient to another hospital and at their request, the patient was referred to Higher Center for further management.
13. In his crossexamination by ld defence counsels, PW4 stated that he had not brought any medical record regarding the patient and it can be produced by the hospital. He stated that he had deposed on the basis of recollection / memory. He stated that he was not aware whether intimation of accident was given to the police or not and whether any MLC was prepared or not.
14. ASI A. Ajaya Kumar, No. 665/NE, P.S. Sarita Vihar, Delhi was summoned and examined as PW5 who appeared with the summoned record from P.S. Sarita Vihar i.e. DD entry no.8 dated 20.01.2012, regarding admission of the patient in Apollo Hospital and about preparation of MLC no. 28/12 of the patient Hizam Devi w/o Sh. R.K. Shyamananda, which was attended by SI Joginder Singh, in Apollo Hospital. The DD Entry no.28 dated 23.01.2012 was regarding the handing over of the dead body of the deceased Smt. Hizam Ibeyaima Devi to her LRs, by SI R.S. Dagar. Copy of the MLC no. 28/12 was exhibited as Ex.PW5/1. The report of SHO Sh. Mukesh Kumar of PS Sarita Vihar was exhibited as Ex.PW5/2, the DD entry no. 8 dated 20.01.2012 was exhibited as Ex.PW5/3 and DD entry no. 28 dated 23.01.2012 was exhibited as Ex.PW5/4.
15. In his crossexamination by ld. defence counsels, PW5 stated that MACT No. 14710/15 Dr. Raj Kumar Shyamananda Singh & Ors. Vs. Vinay Katara & Ors. Page No. 8 of 26 there was no intimation from any police station regarding accident from Vrindaban, UP.
16. The petitioner also summoned and examined another medical witness i.e. Dr. Sandeep Guleria, Sr. Consultant Surgeon, Indraprastha Apollo Hospital, Delhi, who is 6th witness of petitioner but he had been inadvertently mentioned as PW5. He deposed that on 20.01.2012, the patient (whose name he did not remember) was brought to Apollo hospital from Vrindavan, who was stated to have been injured due to a road accident. The patient was in shock but conscious. She was resuscitated, CT scan was done, a chest tube was put for chest injury and she was operated under emergency surgery. She was found to have injury in liver and injury to the small intestine which was managed. However, in the post operative period, she developed DIC (Disseminated Intervascular Coagulation) and died the following day, despite best efforts by the doctors to save her life. The witness stated that the DIC means that she developed bleeding from multiple sites. He stated that the photocopy of the medical bills already MarkE was issued by the Apollo Hospital. He was duly cross examined by ld. Defence Counsel for Insurance Company and discharged. The medical bills MarkE had been exhibited by PW2 as Ex. PW2/5.
17. In his crossexamination by ld. defence counsels, PW Dr. Sandeep Guleria stated that the original bill and death summary of the patient were handed over to the attendants of the patient. He stated that he cannot say whether injuries to the patient were caused due to the road accident or due to fall or due to some other reasons.
Respondents' Evidence MACT No. 14710/15 Dr. Raj Kumar Shyamananda Singh & Ors. Vs. Vinay Katara & Ors. Page No. 9 of 26
18. After closure of petitioner's evidence, the case was fixed for Respondents' Evidence.
19. Respondent No. 2 Sh. Amit Arora / Driver of the Offending Vehicle examined himself as R2W1 and tendered his evidence affidavit as Ex. R2W1/1. R2W1 Sh. Amit Arora has relied upon the documents i.e. copy of his driving licence as Ex. R2W1/A, copy of RC of vehicle no. DL7CK9106 as Ex. R2W1/B and copy of insurance policy as Ex. R2W1/C. In his affidavit of evidence, R2W1 stated that he had been falsely implicated in the case and no accident had occurred with the vehicle while he was driving the vehicle. He stated that he had gone to worship in Govind Dev Temple after parking the vehicle safely outside the temple, and when he returned, he found the vehicle parked at the same place and did not find any injured / mob / crowd at the place.
20. In his crossexamination by ld. counsel for insurance company, R2W1 Sh. Amit Arora stated that he had found the vehicle parked at the same place where he had parked it before going to Govind Dev Temple for worship and the vehicle had not moved even an inch from the place of parking. He stated that he came to know about the accident after 20 to 25 days from the date of accident, through his friend / registered owner of vehicle, Sh. Vinay Katara.
21. Respondent no.1 / Owner of offending vehicle and respondent no. 3 / Insurance Company did not lead any Defence Evidence. Thereafter, RE was closed.
22. After closure of Respondents' evidence and after hearing final arguments, ld. predecessor had dismissed the claim petition vide Judgment / Order dated 27.04.2018.
MACT No. 14710/15 Dr. Raj Kumar Shyamananda Singh & Ors. Vs. Vinay Katara & Ors. Page No. 10 of 26
23. However the petitioners filed Appeal vide MAC Appeal No. 630/2018 titled as Rajkumar Shyamananda Singh & Ors. Vs. Vinay Katara & Ors. and the Hon'ble High Court of Delhi vide two detailed Orders dated 10.10.2019 and 05.11.2019, set aside the judgment of ld. Predecessor dated 27.04.2018 and remanded the case back with observations that, "the involvement of alleged vehicle being driven in rash and negligent manner which caused fatality and injuries is not in dispute", and directed the Tribunal to make computation of compensation in the case, preferably within 2 months from the date of receipt of the Order.
24. Perusal of previous ordersheets reveals that the Order of Hon'ble High Court was received in November, 2019 and case file was received in December, 2019 but the counsel for petitioner took some time for filing written computation in FormVIA and some time was consumed since an application for change of name of petitioner no.3 was filed by the counsel for petitioners and after arguments and consideration, the application was allowed and name of petitioner no.3 was changed from "Seabird Rajkumari" to "Sanah Rajkumari" (vide order dated 27.02.2020). Thereafter, delay was caused due to lockdown of entire country due to spread of Pandemic Covid19.
25. As per directions of Hon'ble High Court of Delhi, the online hearing was resumed through videoconferencing on 'Cisco Webex' online meeting platform from June, 2020 onwards.
26. Final arguments were heard on previous dates and case was fixed for Order for today.
27. Ld. counsel for petitioners relied upon following judgments in his arguments and written submissions: MACT No. 14710/15 Dr. Raj Kumar Shyamananda Singh & Ors. Vs. Vinay Katara & Ors. Page No. 11 of 26
(i) Bimla Devi & Ors. Vs. Himachal Road Transport Corporation & Ors.
(2009) 13 SCC 530;
(ii) Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors. 2009 SCC Online Del 4159;
(iii) Sarla Verma (smt) and Ors. Vs. Delhi Transport Corporation & Anr.
(2009) 6 SCC 121;
(iv) United India Insurance Co. Ltd. and Ors. Vs. Patricia Jean Mahajan & Ors. (2002) 6 SCC 281 and
(v) National Insurance Company Ltd. Vs. Birender and Ors. Civil Appeal Nos. 242243 of 2020 (Arising out of SLP (Civil) Nos. 976977 of 2020) (Decided by Hon'ble Supreme Court of India on 13.01.2020). ISSUEWISE FINDINGS Issue No.1:
Whether deceased Smt. Hijam Ibeyaima Devi died on account of injuries sustained in accident taking place on 19.01.2012 at about 9:30 PM at near Ambh Beauty Parlor and Boutique at Pathar Pura, Mathura, UP within the jurisdiction of PS Vrindaban, Distt. Mathura, UP due to rash and negligent driving of vehicle No. DL7CK 9106 by respondent No. 1? OPP
28. At the outset, before examining evidence brought on record by the parties, we must remember that the Hon'ble Supreme Court of India in cases titled as Bimla Devi Vs. Himachal Road Transport Corporation (2009) 13 SCC 530 and Kusum Lata Vs. Satbir (2011) 3 SCC 646 as well as in case titled as "Bimla Devi Vs. Satbir Singh (2013) 14 SCC 345 has held that the Motor Vehicles Act is a social piece of Legislation and has been enacted with the intent and object to facilitate the claimants / victims to get redress for injuries or for loss of their family members, as early as possible. Therefore, it is desirable to adopt a more realistic, pragmatic and liberal approach in such matters and the claimants / petitioners are not required to prove the case 'beyond reasonable doubt'. It is sufficient that the claimants / petitioners establish their case on the touchstone of preponderance of probabilities.
MACT No. 14710/15 Dr. Raj Kumar Shyamananda Singh & Ors. Vs. Vinay Katara & Ors. Page No. 12 of 26
29. In the present case, the petitioner was required to prove that accident was caused due to rash and negligent act of respondent no.2, since it is a case u/s. 166 of M. V. Act, 1988.
30. The counsel for petitioners has examined two eyewitnesses namely PW2 Ms. Seabird Rajkumari (now known as Sanah Rajkumari) and PW3 Ms. Rajkumari Rimasana Devi, who categorically deposed in their Affidavits of Evidence that they were accompanying the deceased when the accident had occurred on 19.01.2012 at about 9.30 p.m. at night at Vrindaban, and the Driver of Offending Vehicle had come from wrong side and was driving the vehicle rashly and negligently, due to which the vehicle hit the deceased, and the deceased was run over by the vehicle and was seriously injured, and she succumbed to her injuries within 2 days of the accident i.e. on 21.01.2012.
31. The counsel for respondent no. 3 / insurance company has pointed out various discrepancies in the crossexamination of both the above said eye witnesses, during final arguments as well as in his written submissions, however, it is very important to note herein that neither respondent no.1 (Owner) nor respondent no. 2 (Driver) have denied the presence of the Offending Vehicle at the spot of accident. Rather, respondent no.2 in his affidavit of evidence as well as in his crossexamination, has himself stated that he had parked the vehicle near Govind Dev Temple, Vrindaban and had gone to worship in the temple. This statement of respondent no.2, coupled with photographs of the number plate of offending vehicle exhibited on record by PW3 as Ex.PW3/17, is sufficient to prove the fact that the offending vehicle (Hyundai Verna Car No. DL7CK9106 registered in the name of respondent no.1 Sh. Vinay Katara) was present at the site of accident on the date of accident. Moreover, it is important to note herein that MACT No. 14710/15 Dr. Raj Kumar Shyamananda Singh & Ors. Vs. Vinay Katara & Ors. Page No. 13 of 26 respondent no.1 has also admitted this fact that his vehicle was taken and was being driven by respondent no.2 on the date of accident and it was present in Vrindaban on the date of accident.
32. However, the respondents no.1 and 2 denied the fact that the accident had occurred with their vehicle and they created a story that the vehicle had been properly parked near Govind Dev Temple and no accident had occurred with the vehicle. But it is very hard to believe their story, as there was no reason why the petitioners would have falsely implicated the vehicle, if it was not involved in the accident. The photographs clicked by PW3, of the number plate of the vehicle suggest that the vehicle was present at the site as well as involved in the accident, but the action could not be taken by local police against the driver on the spot, since the complaint of accident had not been lodged instantly by PW2 and PW3, may be, because of the fear that doctors will not treat the deceased who was grievously injured and was in urgent need of medical care and attention, and also out of fear that a lot of time would be consumed in police investigation and crucial time may be lost in attempt to save the life of the patient. These fears of PW2 and PW3 have been clearly reflected in their crossexamination wherein they stated that they did not lodge complaint before local police of Vrindaban, as the driver of Offending Vehicle had told them that he would not help them if police complaint is lodged.
33. Various other discrepancies in crossexamination of eye witnesses have been pointed out in final arguments by ld. Counsel for insurance company and he vehemently argued that no accident had occurred at the place mentioned in the petition, with the vehicle of respondent no.1, and this is the reason that no FIR / police complaint regarding accident was lodged by the eye witnesses before local police of Vrindaban. However, this court is of the opinion that mere fact that FIR / MACT No. 14710/15 Dr. Raj Kumar Shyamananda Singh & Ors. Vs. Vinay Katara & Ors. Page No. 14 of 26 Police complaint was not instantly lodged in police station of Vrindaban on the date of accident, does not mean that the accident had not occurred. The medical documents of deceased exhibited as Ex.PW2/4 and Ex.PW2/5, and the MLC Report and Postmortem Report exhibited as Ex.PW2/6 and Ex.PW2/8, coupled with copy of death certificate of deceased exhibited as Ex.PW2/12 and copy of passport of deceased as her identity proof exhibited as Ex.PW2/16, alongwith other supporting documents i.e. copy of FIR No. 23/12 dated 22.01.2012 PS Vrindaban u/s. 279/304A IPC which is Ex.PW2/2, and copy of police complaint of accident which is Ex.PW2/3, are sufficient to prove the case on the basis of burden of proof of 'balance of probabilities / preponderance of probabilities', that the accident had occurred on the date, time and place mentioned in the claim petition, with the offending vehicle i.e. Hyundai Verna Car bearing registration no. DL7CK9106.
34. Moreover, the perusal of medical documents Ex.PW2/4 and Ex.PW 2/5 reveals that the deceased had suffered very serious injuries in the accident and she succumbed to her injuries within 2 days of the accident. Perusal of MLC Ex.PW2/6 reveals that the cause of death of Deceased was "DIC (Disseminated Intervascular Coagulation) with multiorgan failure, post polytrauma (Chest and abdomen) following RTA (Road Traffic Accident)". Perusal of Postmortem Report Ex.PW2/8 issued by Department of Forensic Medicine and Toxicology of AIIMS Hospital reveals that Deceased had suffered various 'antemortem injuries' over her whole body from abdomen to legs, and the cause of death is mentioned as "shock due to multi organ failure caused by blunt force impact which could be possible in Road Traffic Accident (RTA)". Therefore, it can be safely presumed on the basis of entire above stated evidence that the Deceased had expired due to injuries suffered by her in the accident caused by the Offending Vehicle.
MACT No. 14710/15 Dr. Raj Kumar Shyamananda Singh & Ors. Vs. Vinay Katara & Ors. Page No. 15 of 26
35. The very fact that the injuries were very serious and the patient died within 2 days of the accident, is sufficient for this court to take assistance of principle of "res ipsa loquitor" (a thing / act speaks for itself) and to raise presumption in favour of the petitioners and against the respondents that the respondent no.2 was driving the Offending Vehicle at a very high speed, in very rash and negligent manner, due to which he could not control his vehicle on the slope (as stated by the eye witnesses that the road was not straight and there was a slope at the spot of accident) and he hit the deceased as well as other two persons crossing the road, and deceased succumbed to the injuries suffered in the accident. Therefore, this court is of the opinion that the petitioners have been able to prove, on basis of burden of proof of preponderance of probabilities, that the accident had been caused due to rash and negligent driving of the Offending Vehicle by the Respondent no.2 / Driver and death of deceased was caused due to the said accident. Hence, Issue no.1 is decided in favour of the petitioners and against the respondents.
Issue No.2:
Whether the petitioners are entitled to compensation? If so, to what amount and from whom?
36. In view of findings upon issue no.1, it is clear that the deceased had suffered fatal injuries and she expired due to the injuries suffered in the accident caused by rash and negligent driving of offending vehicle by the respondent no.2 / Driver, therefore, petitioners are entitled to compensation in this case.
37. The perusal of written statement of respondents as well as evidence brought on record by R2W1 Sh. Amit Arora (Driver) clearly reveals that the driving license of the driver, copy of which is Ex.R2W1/A, as well as RC (Ex.R2W1/B) MACT No. 14710/15 Dr. Raj Kumar Shyamananda Singh & Ors. Vs. Vinay Katara & Ors. Page No. 16 of 26 and Insurance Policy (Ex.R2W1/C) were valid on the date of accident. Therefore, respondent no.3 i.e. Reliance General Insurance Co. Ltd. is liable to pay entire compensation to the petitioners on behalf of respondents no.1 and 2, without any recovery rights from them.
38. Hence, Issue no. (ii) is also decided in favour of the petitioners and against the respondents.
RELIEF COMPUTATION OF COMPENSATION MEDICAL EXPENSES
39. The petitioners have claimed an amount of Rs.4,14,565.83/ as compensation for medical expenses on the basis of medical bill dated 21.01.2012 issued by Indraprastha Apollo Hospital, Delhi Ex.PW2/5 (collectively running into 18 pages). However, perusal of bill reveals that discount of Rs.59,350.14/ was given by the hospital and the net amount of Rs.3,55,215.69/ was charged by the hospital from the petitioners. Therefore, amount of Rs.3,55,216/ is awarded to the petitioner no.1 under this head of Medical Expenses.
LOSS OF DEPENDENCY
40. As per the copy of passport and visa of deceased Smt. Hijam Ibeyaima Devi, her date of birth is 01.03.1959 and she was a Canadian National at the time of her death, though her place of birth was Imphal, India. Her occupation is mentioned as Dental Assistant in the said document. The date of accident is 19.01.2012. Therefore, on the date of accident, the deceased was aged about 52 years.
41. As per certificate of employer of deceased (Brock North Dental) dated MACT No. 14710/15 Dr. Raj Kumar Shyamananda Singh & Ors. Vs. Vinay Katara & Ors. Page No. 17 of 26 04.03.2015 Ex.PW2/11, the deceased was employed with them from 04.04.2011 as full time Dental Assistant till the date of her death and her pay rate was 17 Canadian Dollars per hour with an assured work load of 35 hours or more weekly. It has been mentioned by the said employer in the letter dated 23.02.2012 (which is also on record) that average biweekly pay of deceased was 1300 CAD. Therefore, as per the said employer, her monthly income was about 2600 CAD and her annual income for the year 2011 was 2600 X 12 = 31,200 CAD.
42. The petitioners have also filed another certificate dated 24.02.2012 from Dr. Jane Halkiotis (Dental Surgeon), Toronto, Canada, according to which, deceased was employed part time with the said employer as Dental Assistant from 25.10.2008 till 17.12.2011 and her hourly rate of pay was Canadian Dollars 17.50 and she worked for 235.5 hours in total in year 2011. Therefore, as per the said certificate, the income earned by deceased from employer Dr. Jane Halkiotis comes out to 235.5 x 17.50 = 4121.25 CAD (in part time employment).
43. The objections were raised by ld. Defence Counsel for insurance company that the petitioners had not filed income tax return of the deceased. Therefore, alongwith written submissions, counsel for petitioners filed copy of notice of assessment of the deceased for the year 2011, according to which, her total annual income was 35083 Canadian Dollars and total income tax deducted was 3778.38 Dollars (As per notice of assessment dated 31.05.2012 issued by Canada Revenue Agency in name of deceased). Therefore, her last earned net annual income comes out to 31,304 Canadian Dollars approximately.
44. However, petitioners have not filed on record the Income Tax Returns of the deceased for the last 3 to 4 years just prior to her death, to enable the court to MACT No. 14710/15 Dr. Raj Kumar Shyamananda Singh & Ors. Vs. Vinay Katara & Ors. Page No. 18 of 26 assess her average annual income prior to her death. It is important to mention herein that as per the certificate of employment issued by 'Brock North', deceased had started employment as full time employee only in April, 2011 and not prior to that. As per employment certificate of part time employer Dr. Jane Halkiotis, the deceased was working as part time employee since October, 2008 till December, 2011 and as per above calculation, her annual income in year 2011 from the said employer was only 4121.25 CAD. It is further important to mention herein that after repeated objections by ld. Defence Counsel for insurance company, the counsel for petitioners filed copy of notice of assessment only for year 2011 - 2012 and that too was issued on 31.05.2012 after the death of deceased. From perusal of all the abovesaid documents, it is clear that the petitioners have been trying to evade filing of entire documentary evidence of average annual income of deceased for 3 to 4 years prior to her death, and they have filed only those documents which were in their best interest. Hence, the documents filed on record by the petitioners cannot be taken as gospel truth and the court has to assess the average net annual income of deceased after critical appraisal of the evidence brought on record.
45. Perusal of entire abovestated evidence brought on record by petitioners reveals that on the one hand, deceased is shown to have earned about 4121.25 CAD from parttime employment in year 2011, and on the other hand, deceased has been shown to have earned 31,200 CAD from her fulltime employment in year 2011, however, though the petitioners have been able to show that the deceased was working as parttime dental assistant since year 2008 till year 2011, however, they have not been able to show that the deceased was also working as fulltime dental assistant since year 2008 or any time prior to year 2011. Therefore, in absence of complete evidence of fulltime employment of deceased MACT No. 14710/15 Dr. Raj Kumar Shyamananda Singh & Ors. Vs. Vinay Katara & Ors. Page No. 19 of 26 except one document of 'Brock North' as discussed above, this court is of the opinion that average net annual income of 20,000 CAD will suffice in this case.
46. The deceased is considered to be in private employment as per the documentary evidence of employment placed on record. Therefore, 10% addition towards future prospects is granted since the deceased was in the age bracket of 50 to 60 years. Therefore, her net annual income + future prospects comes out to 20,000 + 10% of 20,000= 22,000 CAD per annum.
47. The petitioners have claimed compensation in Indian Currency. The rate of exchange, as per the list of exchange rate from Economic Survey 2012 - 13, filed by petitioner was Rs.52.197 per Canadian Dollar in 2012 - 13 and exchange rate was Rs.48.307 per Canadian Dollar in year 2011 - 12. However, as per the website www.exchangerates.org.uk, the average exchange rate in year 2011 was Rs.47.10 per CAD and the average exchange rate in year 2012 was Rs.53.41 per CAD. But in the present case, the deceased had worked with her employer till December, 2011 and she expired in the accident in January, 2012. Hence, in view of the fluctuating nature of rate of exchange, this court is of the opinion that average exchange rate of Rs.48/ per CAD during the year 201112 (around the time of death of deceased) shall be considered as appropriate in this case.
48. The net annual income of deceased with future prospects has been calculated as 22,000 CAD approximately. It converts to net annual income of Rs.10,56,000/ (22,000 X 48) in terms of Indian currency. Deduction of 1/3rd income is being made towards personal expenses of deceased since she was married and having two younger daughters as dependents ("National Insurance Company Limited Vs. Pranay Sethi & Ors. (2017) 16 SCC 680"). Therefore, net annual MACT No. 14710/15 Dr. Raj Kumar Shyamananda Singh & Ors. Vs. Vinay Katara & Ors. Page No. 20 of 26 income of deceased - her personal expenses = 10,56,000 - 1/3rd of 10,56,000= 10,56,000 - 3,52,000 = Rs.7,04,000/. The multiplier of 11 shall be applicable in this case since the age of deceased was within age bracket of 51 - 55 years at the time of her death. Therefore, total loss of dependency comes out to (Rs.7,04,000/ X 11) = Rs.77,44,000/.
LOSS OF CONSORTIUM / LOSS OF LOVE AND AFFECTION
49. In case titled as "National Insurance Company Limited Vs. Pranay Sethi & Ors. (2017) 16 SCC 680", Hon'ble Supreme Court of India held that the legal heirs of deceased are entitled to certain fixed amount towards loss of love and affection of the deceased due to his / her accidental death, and the Hon'ble Supreme Court fixed the sum as Rs.40,000/ under this head.
50. In Magma Vs. General Insurance Co. Ltd Vs. Nanu Ram & Ors. 2018 ACJ 2782, it was observed by Hon'ble Supreme Court that 'consortium' is a compendious term, which encompasses 'spousal consortium', 'parental consortium' and 'filial consortium'. The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to her entire family. Spousal Consortium allows compensation to surviving spouse for loss of 'company, society, cooperation, affection and aid of the other in every conjugal relation'. The Hon'ble Supreme Court further observed in said judgment that parental consortium is granted to the child upon the premature death of a parent, for loss of 'parental aid, protection, affection, society, discipline, guidance and training.
51. In the present case, petitioner no.1 being the husband / spouse of deceased, is entitled to amount of Rs. 40,000/ under the head Loss of Consortium. Petitioners no. 2 to 4, being daughters of deceased, are entitled to Rs. 40,000/ each MACT No. 14710/15 Dr. Raj Kumar Shyamananda Singh & Ors. Vs. Vinay Katara & Ors. Page No. 21 of 26 towards Loss of Love & Affection of the deceased due to her untimely death.
52. Accordingly, sum of Rs.40,000/ each is awarded to all the petitioners no. 1 to 4 towards loss of consortium / loss of love and affection i.e. total amounting to Rs.1,60,000/ (40,000 X 4).
LOSS OF ESTATE & FUNERAL EXPENSES
53. Sum of Rs. 30,000/ is awarded in favour of petitioner no.1 being husband of deceased under both the heads i.e. Rs. 15,000/ on account of 'loss of estate' and Rs. 15,000/ for 'funeral expenses' of the deceased, as per the law laid down in "National Insurance Company Ltd. Vs. Pranay Sethi & Ors." (Supra). Besides this, the petitioners have exhibited the bill of transportation of the dead body of deceased from Delhi to Imphal (to the native place of deceased for her last rites) as Ex.PW2/13 which reflects expenditure of Rs.8200/. Therefore, in addition to the abovesaid amount of Rs.30,000/ under this head, the amount of actual expenditure of Rs.8200/ for transport of dead body from Delhi to Imphal is also granted to the petitioner no.1.
APPORTIONMENT OF COMPENSATION
54. Petitioner no.1 Sh. Rajkumar Shyamananda has himself stated in his crossexamination dated 30.09.2014 as PW1 that he was earlier working in TML Supply company in Canada and was earning about 30,000/ Canadian dollars annually, and for some time after death of his wife, he was unable to work but he has recently started Immigration Consultancy. Therefore, petitioner no.1 cannot be termed as dependent upon deceased, since he is an earning member of the family. The petitioner no.1 also admitted that his eldest daughter i.e. petitioner no.2 Ms. Sheetal Rajkumari was employed at the time of death of her mother, therefore, she MACT No. 14710/15 Dr. Raj Kumar Shyamananda Singh & Ors. Vs. Vinay Katara & Ors. Page No. 22 of 26 cannot be termed as dependent upon deceased.
55. Perusal of passport of petitioner no.3 Seabird @ Sanah Rajkumari Ex.PW2/16 reveals that petitioner no.3 is a Canadian National and her date of birth is 06.04.1990. Therefore, she was major aged about 22 years at the time of accident, however, it has come in evidence that petitioner no.3 was studying at the time of death of her mother, therefore, she is considered to have been dependent upon deceased at the time of her death. As per copy of birth certificate of petitioner no.4 Starry Rajkumari which is Ex.PW2/15 as well as marriage certificate of petitioner no.1 with deceased which is Ex.PW2/14, date of birth of petitioner no.4 is 21.09.1996, therefore, she was aged about 16 years at the time of accident. Hence, petitioner no.4 being minor at the time of accident, is also considered as dependent upon deceased. Therefore, petitioner no.3 and 4 are entitled to equal share in compensation calculated under the head 'Loss of Dependency'.
TABLE (A) OF APPORTIONMENT OF LOSS OF DEPENDENCY
1 Petitioner No.3 Ms. Seabird @ Sanah Rajkumari (50%) Rs. 38,72,000.00
2 Petitioner No. 4 Ms. Starry Rajkumari (50%) Rs. 38,72,000.00
Total (A) Rs. 77,44,000.00
TABLE (B) OF REMAINING COMPENSATION AWARDED IN FAVOUR
OF PETITIONERS
1 Medical Expenses (Petitioner no.1) Rs. 3,55,216.00
2 Loss of Consortium / Loss of Love and Affection Rs. 1,60,000.00
(Petitioners no. 1 to 4 Rs.40,000/ each)
3 Loss of Estate & Funeral Expenses (Petitioner no.1) Rs. 30,000.00
4 Transportation Charges of Dead Body of Deceased Rs. 8,200.00
MACT No. 14710/15 Dr. Raj Kumar Shyamananda Singh & Ors. Vs. Vinay Katara & Ors. Page No. 23 of 26
Delhi to Imphal (Petitioner no.1)
Total (B) 5,53,416.00
Total (A) + (B) (77,44,000 + 5,53,416) Rs. 82,97,416.00
Rounded off to Rs. 82,97,500.00
56. On the basis of abovestated reasoning and calculations, Award is passed in favour of petitioners and against respondents, payable by respondent no.3, for sum of Rs.82,97,500/ (Rupees Eighty Two Lacs Ninety Seven Thousand and Five Hundred only) (including interim award amount if any) without any recovery rights from respondents no. 1 and 2.
57. Ld. counsel for respondent no.3 insurance company argued during final arguments that much delay was caused by the petitioners in leading evidence, therefore, the insurance company cannot be burdened with interest for the said period. Perusal of main case file reveals that issues were framed by the ld. Predecessor on 05.10.2013 and the counsel for petitioners had requested for adjournments for PE on many dates on the ground that the petitioners were residents of Canada and finally PE was concluded on 08.05.2017 i.e. about 3 ½ years after the framing of issues. On the other hand, the respondents did not take much time in recording defence evidence and RE was closed on 23.05.2017 i.e. within the same month when PE was closed. Therefore, it is clear from the judicial record that delay in completion of proceedings was caused due to the reasons attributable to the petitioners only. Hence, petitioners are not entitled to interest @ 9% per annum. This court is of the opinion that interest @ 7% per annum will suffice in this case.
58. Therefore, respondent no.3 / insurance company is directed to pay MACT No. 14710/15 Dr. Raj Kumar Shyamananda Singh & Ors. Vs. Vinay Katara & Ors. Page No. 24 of 26 compensation of Rs.82,97,500/ (Rupees Eighty Two Lacs Ninety Seven Thousand and Five Hundred only) to the petitioners with interest @7% per annum from date of filing of the petition till date of its realization, within 30 days from the date of this award.
59. Keeping in view the facts and circumstances of the case, it is hereby directed that out of the amount awarded in favour of petitioner no.3 and 4, sum of Rs.25,00,000/ (Rupees Twenty Five Lacs only) each be kept in the form of 50 FDRs in the multiples of Rs. 50,000/ each maturing every month having cumulative interest, i.e. First FDR maturing after one month from date of deposit, second FDR maturing after two months from date of deposit and so on so forth. Remaining amount with corresponding interest accrued till date be released into their savings bank accounts respectively.
60. The compensation amount awarded to other petitioners may be released into their savings bank accounts respectively on verification of their identity and relevant bank account details.
61. All the FDRs to be prepared as per aforesaid directions, shall be subject to the following conditions:
(a) The original fixed deposit shall be retained by the bank in safe custody and copies of the same be provided to the petitioner with the statement containing FDR number, FDR amount, date of maturity and maturity amount.
(b) The maturity amounts of the FDR(s) be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant.
(c) No loan, advance, withdrawal or premature discharge be allowed on the fixed deposits without permission of the Court.
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(d) The concerned bank shall not issue any cheque book and/or debit card to claimant / his guardian. However, in case the debit card and /or cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount.
(e) The bank shall make an endorsement on the passbook of the claimant to the effect that no cheque book and/or debit card have been issued and shall not be issued without the permission of the Court.
62. Respondent no. 3, being insurer of the offending vehicle, is directed to deposit the award amount with interest till date with UCO Bank, Karkardooma Court Branch within 30 days. The Branch Manager, is directed to keep the compensation amount in fixed deposits in name of this Court in auto renewal mode every 15 days, till the claimants approach the bank for disbursement, so that the award amount starts earning interest from the date of clearance of the cheques. Form IVB and FormV, in terms of MCTAP, shall be read as part of the Award. Copy of the award be given to the petitioners and also to counsel for the insurance company for compliance. Copy of this award alongwith one photograph each, specimen signatures, copy of bank passbooks and copy of residence proof of the petitioners, be sent to Nodal Officer of UCO Bank, Karkardooma Court Branch, Delhi for information and necessary compliance. Digitally signed copy of this order be uploaded on official website of Delhi District Courts i.e. Digitally signed https://delhidistrictcourts.nic.in. by Tyagita Tyagita Singh Announced in open Court Singh Date:
2020.09.03 on this 03rd Day of September, 2020 16:16:33 +0530 (TYAGITA SINGH) PO MACT, NORTH EAST KARKARDOOMA COURTS, DELHI MACT No. 14710/15 Dr. Raj Kumar Shyamananda Singh & Ors. Vs. Vinay Katara & Ors. Page No. 26 of 26