Delhi District Court
Rajeev Sharma vs . Amit Kumar & Ors on 8 August, 2013
1
Rajeev Sharma Vs. Amit Kumar & Ors
IN THE COURT OF SH. SANJIV JAIN : PRESIDING OFFICER : MACT 02
SOUTH DISTRICT : SAKET COURTS : NEW DELHI
In Suit No. 30/12
FIR No. 125/11
Unique ID : 02406C0043092012
1.Rajiv Sharma @ Raju
S/o Sh. Shankar Lal
R/o G322A, PhaseVI
Aya Nagar Extension
New Delhi
......... Injured
1.Satender Singh @ Chottey Singh
S/o Sh. Mahavir Singh
2.Rajakishori @ Sumitra
W/o Sh. Satender Singh
3.Alok
S/o Sh. Satender Singh
4. Ashiki
D/o Sh. Satender Singh
All R/o 286, Gram Pulavali No. 1
District Bhind, M.P.
.....LRs of deceased/ Petitioners
Versus
1. Amit Kumar
S/o Sh. Vinod Kumar Sharma
Petition No. : 30/12 Page No. 1 of 31
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Rajeev Sharma Vs. Amit Kumar & Ors
R/o Plot No. 335 near Bus Stand
Dera Village, New Delhi.
........... Driver
2. Venus Rent a Car
through its Director
80/9, JNU Road
Kishan Garh
Vasant Kunj, New Delhi
Khasra No. 384/2, Plot No. 2
100 feet road, Ghitorni, New Delhi.
........... Owner
3. ICICI Lombard General Insurance Co. Ltd
Zenith House, Keshavarao Khade Marg
Mahalaxmi, Mumbai .......... Insurer
..... Respondents
Date of Institution : 20.09.2011
Date of reserving of judgment/order : 08.08.2013
Date of pronouncement : 08.08.2013
J U D G M E N T :
1. A Detailed Accident Report was filed by the SHO of the Police Station Saket of an accident which occurred on 17.06.11 at M. G. Road near Metro Pillar No. 31B, Sultanpuri, New Delhi. The accident resulted in death of Ashutosh Singh and injuries on the person of Rajiv Sharma. Legal Heirs of the Petition No. : 30/12 Page No. 2 of 31 3 Rajeev Sharma Vs. Amit Kumar & Ors deceased Ashutosh Singh appeared in DAR and it was treated as petition U/s 166 & 140 of Motor Vehicle Act vide order dated 10.02.2012.
2. Briefly, the facts are that on 17.06.2011, Ashutosh Singh alongwith Rajiv Sharma was going on a motorcycle no. DL3SBT3019. It was being driven by Rajiv Sharma. Ashutosh Singh was pillion rider. When they reached M. G. Road near Metro Pillar No. 31B, Sultanpuri, a car bearing no. DL1YA9269 being driven by respondent no. 1 rashly and negligently came at a high speed and hit their motorcycle from behind. Ashutosh and Rajiv Sharma fell down and sustained injuries. They were taken to JPN Trauma Center where during the course of treatment, Ashutosh Singh died on 22.06.11. Rajiv Sharma sustained multiple injuries on his person. On the statement of Harbhjan Singh, a case vide FIR no. 125/11 was registered. Both the vehicles were seized. They were got mechanically inspected. Respondent no.1 was arrested. Postmortem of the deceased was got conducted. The cause of death of the deceased Ashutosh Singh was opined as head injury and its complications due to blunt force impact to the head. All injuries were antemortem in nature and could be caused due to Road Traffic Accident. After the investigation a report U/s 173 Cr.P.C. was filed. Respondent no.2 was the owner of the vehicle and it was insured with respondent no.3. The deceased was 19 years of age. He was a Motor Mechanic and used to get Rs. 8,000/ per month. He was survived by his parents, one minor brother Petition No. : 30/12 Page No. 3 of 31 4 Rajeev Sharma Vs. Amit Kumar & Ors and one minor sister who were financially and emotionally dependent on him. Rajiv Sharma was 37 years old. He was running a Motor Service Station/Garage and earning Rs. 30,000/ per month.
3. On getting the notice of the DAR, respondent no. 1 filed his reply. He stated that a false case was registered against him. He was not driving the offending vehicle at the time of accident. He is having a valid driving licence bearing no. DL03201102410241547 valid from 31.05.11 to 30.05.31. Respondent no.2 /owner was proceeded exparte order dated 10.02.2012.
4. Respondent no.3/ Insurance Company in its written statement admitted that the vehicle bearing no. DL1YA9269 was insured with it in the name of respondent no. 2 vide policy bearing no. 3004/56820879/02/0000 for the period from 12.05.2011 to 11.05.2012. It alleged that as per the report of investigating officer, driver Amit Kumar was not issued licence from RTO Karnal and his driving licence is fake. It further alleged that after the verification of second licence produced by driver, it is found to be genuine but issued only for Motorcycle and LMV (NT) whereas the insured vehicle was Passenger carrying vehicle, as such the second driving licence was also not valid and effective for driving the Insured Vehicle bearing no. DL1YA 9269.
Petition No. : 30/12 Page No. 4 of 31 5
Rajeev Sharma Vs. Amit Kumar & Ors
5. From the pleadings of the parties, following issues were framed vide order dated 28.03.2012:
1. Whether the deceased Ashutosh scummbed to injuries and injured Rajiv sustained grievous injuries in an accident on 18.06.11 due to rash and negligent driving of Innova Car bearing no. DL1YA9269 by Amit Kumar, owned by Daya Shankar and insured with ICICI Lombard General Insurance Company Ltd?
2. If so what amount of compensation, LRs of deceased Ashutosh and injured Rajiv Sharma are entitled to and from whom?
3. Relief.
6. Sh. Satender Singh ( Legal Heir of deceased Ashutosh Singh) appeared in the witness box as PW1. He tendered his affidavit Ex. PW1/A and the document Ex. PW1/1. Sh. Rajiv Sharma, injured examined himself as PW2 as PW2. He tendered his affidavit Ex. PW2/1 and the documents Ex. PW2/A to Ex. PW2/C ( colly).
7. Respondent no.1 examined himself as RW1. He also tendered his affidavit Ex.RW1/1 in evidence.
8. Respondent no. 3 examined Sh. Vivek Yadav ( Legal), ICICI Lombard General Insurance Co. Ltd as R3W1 and Sh. Sanjay Kumar, LDC, Sheikh Sarai Transport Authority as R3W2.
Petition No. : 30/12 Page No. 5 of 31 6
Rajeev Sharma Vs. Amit Kumar & Ors
9. I have heard the arguments advanced by Ld. counsel Sh. Vinod Kumar for deceased Ashutosh Singh/LRs of petitioner, Sh. Pritpal Singh for injured Rajiv Sharma and Ms. Manu for respondent no.3 and perused the record.
10. My findings on the issues are as follows :
I S S U E N O. 1
11. Standard of proof of negligence required in order to dispose off the claim stands on a much lesser footing than what is required in a criminal case or in a civil case. It was held in "Ranu Bala Paul and Ors. V/s Bani Chakraborty and Ors.", 1999 ACJ 634 by Hon'ble Guwahati High Court :
"In deciding a matter Tribunal should bear in mind the caution struck by the Apex Court that a claim before the Motor Accidents Claims Tribunal is neither a criminal case nor a civil case. In a criminal case in order to have conviction, the matter is to be proved beyond reasonable doubt and in a civil case the matter is to be decided on the basis of preponderance of evidence, but in a claim before the Motor Accidents Claims Tribunal, the standard proof is much below than what is required in a criminal case as well as in a civil case. No doubt before the Tribunal, there must be some material on the basis of which the Tribunal can arrive or decide things necessary to be decided for awarding compensation. But the Tribunal is not expected to take or to adopt the nicety of a civil or of a criminal case. After all, it Petition No. : 30/12 Page No. 6 of 31 7 Rajeev Sharma Vs. Amit Kumar & Ors is a summary inquiry and this is a legislation for the welfare of the society."
In the backdrop of above case law, the evidence of the petitioner is required to be considered.
12. It is well settled law that where petition under Section 166 of the Act is instituted, it becomes the duty of the petitioner to establish rash and negligent driving. To prove rash and negligent driving in a petition under Motor Vehicles Act, Tribunal need not go into the technicality because strict rules of procedure and evidence are not followed. Basically, in road accident cases, Tribunal has simply to quantify the compensation which is just rational and reasonable on the basis of enquiry. The proceedings under Motor Vehicles Act are not akin to the proceedings in a civil suit. Further, roving enquiry is not required to prove the rashness and negligence on the part of the driver as has been held in Kaushumma Begum and others Vs New India Assurance Co. Ltd. 2001 ACJ 421 SC.
13. PW1 has testified on oath that on 17.06.2011, his son alongwith Rajeev Sharma was going on motorcycle no. DL3SBT3019 being driven by Rajeev Sharma. When they reached M. G. Road near Metro Pillar No. 31B, Sultanpuri, a car bearing no. DL1YA9269 being driven by respondent no. 1 Petition No. : 30/12 Page No. 7 of 31 8 Rajeev Sharma Vs. Amit Kumar & Ors rashly and negligently came at a high speed and hit their motorcycle from behind with a great force. They fell down and sustained injuries. They were taken to JPN Trauma Center where during the course of treatment, Ashutosh Singh expired on 22.06.2011. His postmortem was conducted. PW2 Rajiv Sharma also deposed on the lines of PW1. A case was registered at the police station vide FIR No. 125/11 U/s 279/338/304A/468/471 IPC. Police prepared the site plan, seized the vehicles, recorded the statement and arrested the respondent no.1. Both the vehicles were got mechanically inspected.
PW2 also placed on record certified copy of FIR, site plan, charge sheet etc. Ex.PW2/E (Colly.). He stated that he noticed a vehicle coming with a high speed. He stated that the offending vehicle had hit them from back side. He denied that the accident took place due to his negligence. Perusal of FIR and charge sheet reveals that the case was registered on the statement of Ct. Harbhajan Singh who was on duty at M. G. Road. He had stated that a vehicle ( Toyota) bearing no. DL1YA9269 came from the side of Andheria More being driven rashly and negligently by its driver had hit the motorcycle from behind. Motocycle had fallen at the distance of 18 feet and the car struck against a railing. Both of the rider on motorcycle fell down and sustained injuries. They were taken to JPN Trauma Center.
14. R1W1 has deposed that he was not driving the vehicle ( Toyota) bearing no. Petition No. : 30/12 Page No. 8 of 31 9
Rajeev Sharma Vs. Amit Kumar & Ors DL1YA9269. He was not apprehended at the spot and later on he was taken to the police station by D. S. Singh and he was falsely implicated by D. S. Singh in connivance with police officials. He admitted that the criminal case regarding the present FIR is pending against him. He denied that he was concocting a false story in order to avoid liability in the present case.
15. I have seen the site plan, FIR and the mechanical inspection report as well as certified copy of the charge sheet. On its perusal, I find that the police party reached the spot on receipt of DD 35A about the accident. It found both the vehicles badly damaged. It got the spot photographed. IO then went to the hospital where he found the petitioners unfit for statement. He met the eyewitness Ct. Harbhajan Singh on whose statement FIR was registered. He seized the vehicles, gave the notice U/s 133 MV Act to the registered owner of the vehicle and arrested the respondent no.1. The motorcycle of the petitioner was hit when it was taking U turn towards Gurgaon. The offending car was coming from the Andheria More side on the MG Road. The mechanical inspection reports show fresh damages on both the vehicles. The impact was so high that motorcycle got badly damaged. Ct. Harbhajan Singh who was present there has stated that the speed of the car was very high and the impact was so high that the motorcycle even after the impact dragged for about 18 feet and the driver of the car could not control his vehicle and it struck against a railing. Petition No. : 30/12 Page No. 9 of 31 10
Rajeev Sharma Vs. Amit Kumar & Ors The testimony of PW2 is also to the effect that the vehicle was coming with high speed. His motorcycle was hit from behind which perse amounts to negligence.
16. Considering all the facts and circumstances, documents on record and on considering the testimony of PW1, PW2, RW1 and statement of Ct. Harbhajan Singh, I find that the car bearing no. DL1YA9269 was at a very high speed. Respondent no.1 could not control his car, hit and dragged the motorcycle of the petitioner for about 18 feet. It was incumbent on him that too at the U Turn to take reasonable care. He would have slowed down his car foreseeing that the vehicle from the other side could come. In this case he did not take reasonable care and hit the motorcycle of the petitioner. The impact was so high that both the vehicles got badly damaged.
RW1 has stated that the accident had occurred solely due to the negligence of the petitioner but he has also admitted in his cross examination that he has been facing trial in the criminal court.
17. In the totality of the circumstances in the given facts I am of the view that the accident had occurred due to rash and negligent driving of the car bearing no. DL1YA9269 by the respondent no.1 resulting injuries on the person of Rajiv Sharma and death of Ashutosh Singh. Record shows that the vehicle was owned by respondent no.2 and it was insured with respondent no.3. Petition No. : 30/12 Page No. 10 of 31 11
Rajeev Sharma Vs. Amit Kumar & Ors
18. Issue no.1 is accordingly decided in favour of the petitioners and against the respondents.
I S S U E No. 2
19. The petitioner/LRs of petitioners have claimed compensation for the injuries sustained by them in the accident. It is true that when a person is injured in a road accident, he is entitled to the compensation for the pecuniary and nonpecuniary damages.
20. It has been held by Hon'ble Apex Court in R.O. Hattangadi V/s Pest Control (India) Pvt. Ltd., AIR 1995 SC 755 that: "Broadly speaking, while fixing the amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant:
(i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far as nonpecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury, the claimant may not be able to walk, run or sit ; (iii) damages for the loss of expectation of life, i.e. on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life."Petition No. : 30/12 Page No. 11 of 31 12
Rajeev Sharma Vs. Amit Kumar & Ors Let me assess the compensation which the petitioner is entitled to under different heads.
MEDICAL EXPENSES :
21. PW2 Rajiv Sharma after the accident was taken to JPN Trauma Center where his MLC was prepared. He was diagnosed severe head injury with B/L Temporal Contusion and Pneumocephalous. He remained admitted in the hospital from 18.06.11 to 06.07.2011. He was operated twice. He also sustained multiple fractures in his leg and foot. He has filed his disability certificate Ex. PW3/A as per which he has 75 % disability in relation to his whole body. His condition is nonprogressive and not likely to improve. He has filed the medical bills Ex. PW2/B of Rs. 15,887.65. Looking into his injuries and the treatment he underwent, I award Rs. 20,000/ to the claimant towards medical expenses.
PAIN AND SUFFERINGS & ENJOYMENT OF LIFE :
22. The petitioner sustained multiple injuries in the accident. He was operated twice. He remained admitted in the hospital for about 19 days. He has difficulty even in standing. He cannot walk without the help of stick. He has 75 % disability in relation to his whole body which is nonprogressive. He is totally dependent on others. Due to the injuries, he suffered lot of mental pain and agony. Keeping in view the injuries he sustained and the treatment he underwent, I award Rs. 1,00,000/ to the petitioner towards Pain and Petition No. : 30/12 Page No. 12 of 31 13 Rajeev Sharma Vs. Amit Kumar & Ors Sufferings and enjoyment of life.
SPECIAL DIET, CONVEYANCE AND ATTENDANT CHARGES :
23. PW2 sustained multiple injuries in the accident. He sustained severe head injury. He followedup his treatment as an OPD patient. He was advised special diet for early recovery. He has 75 % disability in relation to his whole body. He cannot walk without the help of stick. The injuries on his person were such that he might have taken the help of attendant for about four months. Keeping in view all these facts, I award Rs. 25,000/ to the claimant Rajiv Sharma towards special diet and conveyance and Rs.
24,000/ towards attendant charges.
LOSS OF INCOME :
24. PW2 has stated that he was running a Motor Service Station/Garage. His monthly income was Rs. 30,000/ per month. He has filed his Higher Secondary School certificate and diploma of mechanic motor vehicles from National Council of Vocational Training. He has become dependent upon others. As per statement of PW3, he can only do his own pursuits. He cannot perform any work which involves labour skills. He can do sitting job but it should not require mental application of mind. He stated that he remained bed ridden for a long time.
As per higher secondary school certificate, he was born on Petition No. : 30/12 Page No. 13 of 31 14 Rajeev Sharma Vs. Amit Kumar & Ors 14.06.1974. The accident took place on 17.06.11. Thus, as on the date of accident, he was 37 years of age. His disability certificate shows that he has 75 % disability in relation to his whole body.
The injuries were such that he might have remained bed ridden for about six months. Taking a minimum wages for skilled as Rs. 8122/ per month, the loss of income comes to Rs. 8122X6=48,732 . I award Rs. 48,750/ to the petitioner towards loss of income. LOSS OF FUTURE INCOME ON ACCOUNT OF DISABILITY AND LOSS OF AMENITIES
25. As per the disability certificate, the petitioner has 75% permanent disability in relation to his whole body. As per statement of Dr. Anshu Goel, he cannot perform any work which involves labour skills. He can do sitting job but it should not require mental application of mind. He was 37 years of age at the time of accident. He had to excel in his career. This disability made him permanent disabled for his work which work he could do himself. He also becomes dependent on others. I am of the view that this disability would affect his future prospects. In Nizam's Institute of Medical Sciences Vs. Prasanth S. Dhananka (2009) 6 SCC 1, the Apex Court made the following observations:
"We must emphasize that the Court has to strike a balance between the inflated and unreasonable demands of a victim and Petition No. : 30/12 Page No. 14 of 31 15 Rajeev Sharma Vs. Amit Kumar & Ors the equally untenable claim of the opposite party saying that nothing is payable. Sympathy for the victim does not, and should not, come in the ray of making a correct assessment, but if a case is made out, the Court must not be chary of awarding adequate compensation.
At the same time, we often find that a person lying in an accident leaves his family in great distress. The case of an injured and disabled person is, however, more pitiable and the feeling of hurt, helplessness, despair and often destitution enures everyday. The support i.e. needed by a severely handicapped person comes at an enormous price, physical, financial and emotional, not only on the victim but even more so on his family and attendants and the stress saps their energy and destroys their equanimity".
26. In Raj Kumar Vs. Ajay Kumar & Anr. (2011) 1 SCC 343, it was held that a person is not only to be compensate for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn and could have earned.
27. In the case of Govind Yadav Vs. New India Assurance Co. Ltd. 2011 (2) Scale 336, it was held that the principles laid down in Arvind Kumar Mishra (Supra), Raj Kumar (Supra) must be followed by all the Tribunals in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily. Petition No. : 30/12 Page No. 15 of 31 16
Rajeev Sharma Vs. Amit Kumar & Ors
28. In the case of Sanjay Batham Vs. Munna Lal Parihar & Ors. JT 2011 (13) SC 32 the case of Raj Kumar Vs. Ajay Kumar (Supra) was referred and it was observed as under :
"Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. The total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the accident."
29. In the case of "Raj Kumar Vs. Ajay Kumar (Supra) the Hon'ble Supreme Court in para 4 has held as under :
"The provision of the Motor Vehicles Act 1988 ('Act' for Short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The Court or Tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though Petition No. : 30/12 Page No. 16 of 31 17 Rajeev Sharma Vs. Amit Kumar & Ors some conjecture with reference to the nature of disability and its consequences, is invetable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned."
30. As per the statement of doctor, he cannot perform any work of labour skills and mental application. Considering the age of the petitioner and nature of work being performed by him and his functional disability in the present case is taken as 75% qua whole body. On the issue of price index, the petitioner would be entitled to an addition of 30% towards inflation on the basis of report of the Supreme Court in "Santosh Devi Vs. National Insurance Co. Ltd. & Ors. 2012 (4) Scale 554", the loss of future earning capacity using the Multiplier of "15", since the age of the petitioner was 37 years, comes to 15x75%x (8122x12+30% of Rs.97,464/)= 14,25,411/ . I therefore, award Rs. 14,25,500/ to the petitioner towards loss of future income and towards loss of amenities.
31. Thus the total compensation awarded in favour of the petitioner is assessed as under :
Medical Expenses : Rs. 20,000/
Pain and sufferings and enjoyment of life : Rs. 1,00,000
Petition No. : 30/12 Page No. 17 of 31
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Rajeev Sharma Vs. Amit Kumar & Ors
Special diet, Conveyance & Attendant Charges : Rs. 49,000/
Loss of Income : Rs. 48,750/
Loss of Future Income and Amenities : Rs. 14,25,500/
==============
TOTAL : Rs. 16,43,250/
==============
AWARD IN RELATION TO DEATH OF ASHUTOSH SINGH
32. As issue no.1 is decided in favour of the petitioners in affirmative, petitioners thus become entitled for the compensation. Quantum of the compensation however is required to be calculated.
33. PW1 has stated that the deceased was his son. He died in the accident on 17.06.11. He left behind his parents. This fact has not been controverted by the respondents and no contrary evidence to that effect has been brought on record. No one else has challenged the claim of the petitioners, therefore, deposition of PW1 is to be believed on this aspect.
34. It has been held in a catena of judgments that emphasis in cases of personal injury and fatal accident should be on awarding substantial, just and fair compensation and not a token amount. General principle in calculating such sum of compensation, should be so as to put the injured or legal heirs of a deceased in case of fatal accident, in the same position as he would have Petition No. : 30/12 Page No. 18 of 31 19 Rajeev Sharma Vs. Amit Kumar & Ors been, if accident had not taken place. The amount of compensation no doubt cannot bring back the dead but it certainly helps the LR's and dependents to live life with dignity and comfort as they were living during the lifetime of the deceased. The amount of compensation is awarded on the basis of age, the earning capacity and other liabilities of the deceased. The appropriate method of calculating compensation in fatal cases is multiplier method. The Hon'ble Supreme Court in plethora of judgments has laid down that in India, the multiplier method is proper for calculation of compensation.
35. In order to calculate the amount of compensation, the sum is required to be considered under the various heads :
LOSS OF DEPENDENCY
36. PW1 has stated that the deceased was 19 years of age and bachelor. He was possessing sound mind and good health at the time of accident. He was a Motor Mechanic with PW2. He used to earn Rs. 8,000/ p.m. However, he did not file any document as to his educational qualification and income. The accident took place on 17.06.2011. In the absence of document, taking a minimum wages for skilled as Rs.8,122/, the annual income of the deceased comes to Rs. 8122 x 12 = Rs. 97,464.
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Rajeev Sharma Vs. Amit Kumar & Ors
37. In the case of Rajesh & Ors. Vs. Rajbir Singh & Ors. 2013 (6) Scale 563 it was held as under :
Since, the Court in Santosh Devi Vs. National Insurance Co. Ltd. & Ors. Manu/SC/0322/2012, actually intended to follow the principle in the case of salaried persons as laid in Sarla Verma Vs. DTC 2009(6) Scale 129 and to make it applicable also to the selfemployed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30% always; it will also have a reference to the age. In other words, in the case of selfemployed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an addition of 50% to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any. Additional should be 30% in case the deceased was in the age group of 40 to 50 years.
38. Following the case law (supra), in the present case the deceased was a mechanic. He was below 40 years. So, 50% are added to the income of the deceased for computing future prospects. Adding the future prospects, the annual income comes to Rs. 97,464 + Rs. 48732 (50% of Rs.97464/) = Rs. 1,46,196/ . The deceased was a bachelor and the claimants are the parents. It was held in the case of Sarla Verma Vs. DTC 2009 (6) Scale 129 that in regard to the bachelor, normally 50 per cent is deducted as personal and living expenses because it is assumed that a bachelor would Petition No. : 30/12 Page No. 20 of 31 21 Rajeev Sharma Vs. Amit Kumar & Ors tend to spend more on himself. Even otherwise, there was a possibility of her getting marriage in a short time, in which time the contribution to the parents would be cut drastically. It was also held that even if the deceased is survived by the parents, only the mother would be considered as dependent and 50 per cent would be treated as personal and living expenses of the bachelor and 50 per cent as the contribution to the family. It was also held that while calculating the dependency, the multiplier is to be applied with reference to the age of the mother in the case of a bachelor. As per the Voter ICard the mother of the deceased was 38 years of age at the time of accident. Hence, a multiplier of '15' is taken for calculating the loss of dependency. After deducting onehalf towards personal and living expenses, the net income for calculating the loss of dependency comes to Rs. 73098/. Using the multiplier of '15', the total loss of dependency comes to Rs. 73098 x 15 = 10,96,470/ which is rounded off to Rs.10,96,500/.
39. I therefore, award a sum of Rs. 10,96,500/ to the petitioners towards "Loss of Dependency".
LOVE AND AFFECTION
40. Petitioners at this stage of their life have lost their son. The love and care which they could have got from her cannot be measured in terms of money. I therefore, award a sum of Rs. 25,000/ to the petitioners towards "Love and Petition No. : 30/12 Page No. 21 of 31 22 Rajeev Sharma Vs. Amit Kumar & Ors Affection".
FUNERAL EXPENSES
41. It was held in the case of "Rajesh & Ors. Vs. Rajbir Singh & Ors. 2013 (6) Scale 563" that the funeral expenses does not mean the fee paid in the Crematorium or fee paid for the use of space in the Cemetery. There are many other expenses in connection with the funeral and, if the deceased is follower of any particular religion, there are several religious practices and conventions pursuant to death in a family. All those are quite expense. It will be just, fair and equitable under the head of funeral expenses in the absence of evidence to the contrary for higher expenses, to award at least an amount of Rs. 25,000/. Following the case law (Supra), I award a sum of Rs. 25,000/ to the petitioners towards "Funeral Expenses".
LOSS OF ESTATE
42. I award a sum of Rs. 10,000/ to the petitioners towards "Loss of Estate".
43. The total compensation in favour of the petitioners is calculated as under :
1) LOSS OF DEPENDENCY = Rs. 10,96,500/
2) LOSS OF LOVE AND AFFECTION = Rs. 25,000/
3) FUNERAL EXPENSES = Rs. 25,000/
4) LOSS OF ESTATE = Rs. 10,000/ ============ TOTAL = Rs. 11,56,500/ ============ Petition No. : 30/12 Page No. 22 of 31 23 Rajeev Sharma Vs. Amit Kumar & Ors L I A B I L I T Y
44.As the offending vehicle was being driven by respondent No.1, therefore primary liability to compensate the petitioners is that of respondent No.1. As the offending vehicle was owned by respondent No.2, therefore, it becomes vicariously liable to compensate the petitioner. It is an admitted position on record that the offending vehicle was insured with respondent No.3, therefore, it becomes contractually liable to compensate the petitioner for the above mentioned amount to the extent of liability of the insured.
45. Ld. Counsel for the Insurance Company, however, in her quest to have the Insurance Company exonerated of its contractual obligation contended that the offending vehicle was being driven in violation of the terms of the policy. She referred the testimony of R3W1 and R3W2. She stated that as per detail Ex. R3W2/1 that the driving license issued to Respondent No. 1 was for motorcycle and LMV ( NT) only but the vehicle involved in the present case was a Toyota bearing no. DL1YA9269, thus, he was not holding a valid and effective licence at the time of accident.
46. I have given my thoughtful consideration to the submissions made and perused the record.
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Rajeev Sharma Vs. Amit Kumar & Ors
47. It has been held by Hon'ble Apex Court in the case titled as Lal Chand Vs. Oriental Insurance Company Ltd. reported as 2006 (3) TAC321 SC that Insurance Company has to show and prove on record that due and adequate care was not taken by the owner or owner had the knowledge that driver was not holding a valid driving license. Only in that eventuality the Insurance Company can be absolved of its contractual obligation, not otherwise.
48. R3W1 has stated that the policy bearing no. 3004/56820879/02/00 was issued in the name of Venus Rent a Car for the period from 12.05.11 to 11.05.12 for the vehicle bearing no. DL1YA 9269 in the category passenger carrying commercial vehicle. He proved the policy Ex. R3W1/1. He has stated that notice U/o 12 Rule 8 CPC was given to the driver Amit Kumar and owner Venus Rent a Car for production of driving licence, permit and insurance policy of the insured vehicle. The notices are Ex. R3W1/2, Ex. R3W1/3, postal receipts Ex. R3W1/4, Ex. R3W1/5 and AD cards duly served are Ex. R3W1/6. He stated that as per the investigation carried by IO, the driving licence of driver Amit Kumar issued from RTA Karnal was found to be fake and another licence issued from RTA Sheikh Sarai Authority is for the category of vehicle LMV (NT) and motorcycle. The driver Amit was not authorised to drive the offending vehicle at the time of accident. R3W2 Snajay Kumar, LDC Shiekh Sarai Transport Authority stated that driver Amit Petition No. : 30/12 Page No. 24 of 31 25 Rajeev Sharma Vs. Amit Kumar & Ors S/o Sh. Vinod Kumar was issued driving licence bearing no. DL0320110241547 on 31.05.11 with expiry as 30.05.2031 for the category of vehicle LMV (NT) and motorcycle with gear. As per the terms of the policy, the respondent no.1 must possess an effective and valid license to drive the commercial vehicle. From the testimony of R3W1 and R3W2 , it is proved that the offending vehicle was being driven by respondent no.1 with the license for LMV (NT) in violation of terms and conditions of the policy.
49. It was held in the case of Kamala Mangalal Vayani & Ors. Vs. United India Insurance Co. Ltd. and others (2010) 12 SCC 488 that once a comprehensive insurance policy is admitted on or so proving any breach of insurance conditions, is on the insurer and not claimants. In the present case, the insurance company i.e. respondent no. 3 has been able to establish that the vehicle was not plying on the road in consonance with the terms of the policy. Thus, the liability to compensate the petitioner would remain with that of respondent no. 1 and respondent no. 2 i.e. driver /owner of the offending vehicle jointly and severally.
50. Legislature being conscious of the magnitude of the plight of the victims of road accident have introduced the present beneficial provisions to protect the interest of third parties i.e. victims of road accident so as to enable them to claim compensation from the driver/ owner of the vehicle. Legislature in its wisdom has made it a statutory obligation of every owner to have his Petition No. : 30/12 Page No. 25 of 31 26 Rajeev Sharma Vs. Amit Kumar & Ors vehicle insured against third party risks. This has been made mandatory so that victims of road accident even after being granted compensation from the court, should not run from pillar to post to have the orders of the court executed and to facilitate them to get the same from the Insurance Company. It was held in the case of "National Insurance Co. Ltd. Vs. Vasdev Kukreja & Ors II (2010) ACC 148" that primary liability to pay the award amount is of insurance company. In that case there was a breach of terms and conditions of the policy as there was violation as to the category of the vehicle which the driver was authorised to drive. The Hon'ble High Court directed the insurance company to pay the award and granted the recovery rights in its favour to recover the award amount from the owner of the offending vehicle.
51. Balancing the "twin interest" of the Insurance Company at one hand and that of the third party i.e. petitioner for whose benefit the present legislation was brought on the statute book, it is directed that the Insurance Company shall pay the compensation awarded to the petitioner within the time given in this award and shall have the right to recover the same from respondent No. 1 and respondent No. 2 jointly and severally.
52. For the foregoing reasons, the respondent no. 3 is directed to pay compensation awarded to the petitioners and shall have the right to recover Petition No. : 30/12 Page No. 26 of 31 27 Rajeev Sharma Vs. Amit Kumar & Ors the same from respondent no. 1 and 2 jointly and severally.
53. Issue no. 2 is decided accordingly in favour of the petitioners and against the respondent no. 1 and 2.
R E L I E F
54. In view of my findings I award Rs.16,43,250/to the petitioner Rajiv Sharma and Rs. 11,56,500/to the LRs of deceased Ashutosh Singh as compensation alongwith interest @ 9% per annum from the date of filing the petition till the date of its realization is passed and against respondent no. 3.
Out of this awarded amount, a sum of Rs. 9,00,000/ is directed to be deposited in the form of FDR in the name of petitioner Rajiv Sharma in the following manner :
1. Rs.3,00,000/ for a period of 2 year.
2. Rs. 3,00,000/ for a period of 4 years.
3. Rs. 3,00,000/ for a period of 6 years.
: RELEASE OF THE AWARDED AMOUNT : In the share of Petitioners : (parents of deceased Late Ashutosh Singh)
55. A sum of Rs. 5,78,250/ each alongwith the proportionate interest thereon, is awarded to petitioners being parents of deceased Ashutosh Singh. Petition No. : 30/12 Page No. 27 of 31 28
Rajeev Sharma Vs. Amit Kumar & Ors
56. Out of this awarded amount, a sum of Rs. 4,00,000/ each be deposited in the form of Fixed Deposits in the name of petitioners in the following phased manner :
(a) A sum of Rs. 1,00,000/ for a period of 2 years
(b) A sum of Rs. 1,00,000/ for a period of 3 years.
(c) A sum of Rs. 1,00,000/ for a period of 4 years.
(d) A sum of Rs. 1,00,000/ for a period of 5 years.
Deposition of awarded amount with STATE BANK OF INDIA, Saket Court Branch, New Delhi.
57. In terms of the directions given by Hon'ble High Court in case titled " Rajesh Tyagi Vs. Jaibir Singh and Ors." bearing FAO number 842/2003 decided on 08.06.2009, UCO Bank/ State Bank of India has agreed to open a Special Fixed Deposit Account for the victims of road accidents.
58. As per orders of Hon'ble High Court in case titled " New India Assurance Co. Ltd Vs. Ganga Devi & Ors bearing MAC. App. 135/2008" as well as in another case titled as " Union of India V/s Nanisiri" bearing M.A.C. Appeal No. 682/2005 dated 13.01.2010, directions were given to the Claims Tribunal to deposit part of the awarded amount in fixed deposit in a phased manner depending upon the financial status and financial needs of the claimants. Petition No. : 30/12 Page No. 28 of 31 29
Rajeev Sharma Vs. Amit Kumar & Ors
59. In consonance to the idea by which part of the awarded amount is ordered to be kept in fixed deposit / savings account by Hon'ble high Court, Insurance Company is directed to deposit the awarded amount in favour of the petitioner/ his father with State Bank of India, Saket Courts Complex Branch, against account of petitioner.
within a period of 30 days from today, failing which respondent no. 3 Insurance Company shall be liable to pay future interest @ 12% per annum till realization (for the delayed period).
60. Upon the aforesaid amount being deposited, the State Bank of India, Saket Court Complex, New Delhi, is directed to keep the awarded amount in the "fixed deposit / saving account'' in the following manner :
(i) The interest on the fixed deposit be paid to the petitioner/claimant by Automatic Credit of interest of their saving bank account with State Bank of India, Saket Court Branch, New Delhi.
(ii) Withdrawal from the aforesaid account shall be permitted to petitioner/claimant after due verification and the Bank shall issue photo identity Card to claimant / petitioner to facilitate identity.
(iii) No cheque book be issued to petitioner/claimant without the permission of this Court.
(iv) The original fixed deposit receipts shall be retained by the Bank in safe custody. However, the original Pass Book shall be given to the petitioner/claimant alongwith the photocopy of the FDR's .
(v) The original fixed deposit receipts shall be handed over to petitioner/claimant Petition No. : 30/12 Page No. 29 of 31 30 Rajeev Sharma Vs. Amit Kumar & Ors at the end of the fixed deposit period.
(vi) No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the permission of this Court.
(vii)Half yearly statement of account be filed by the Bank in this Court.
(viii)On the request of petitioner/claimant, the Bank shall transfer the Savings Account to any other branch of State Bank of India, according to their convenience.
(ix) Petitioner/claimant shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit Account to Branch Manager, State Bank of India, Saket Courts Complex Branch, New Delhi. DIRECTIONS FOR THE RESPONDENT NO. 3
61. The Respondent no. 3 is directed to file the compliance report of its having deposited the awarded amount with State Bank of India, Saket Court Branch in this tribunal within a period of 30 days from today.
62. The Respondent no. 3 is directed to furnish a copy of this award alongwith the cheques of the awarded amount to the Manager of State Bank of India, Saket Court Branch, so as to facilitate the Manager of State Bank of India, Saket Court Branch to have the identification of the claimant/petitioner in whose favour the award has been passed.
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Rajeev Sharma Vs. Amit Kumar & Ors
63. The Respondent no. 3 shall intimate to the claimant/petitioner about its having deposited the cheques in favor of the petitioner/his father in terms of the award, at the address of the petitioner mentioned at the title of the award, so as to facilitate him to withdraw the same.
64. Copy of this award / judgment be given to the petitioner who is directed to furnish the same to the Manager of State Bank of India, Saket Court Branch for necessary compliance after his having received the notice of the deposit of awarded amount from the Insurance company.
65. Copy of this Award / Judgment be given to counsel for the Insurance Company for necessary compliance.
66. The case is now fixed for compliance by the insurance company for 10.09.2013.
Announced in the Open Court
on 08th Day of August, 2013 (SANJIV JAIN)
Presiding Officer : MACT02
South District : Saket Courts
New Delhi : 08.08.2013
Petition No. : 30/12 Page No. 31 of 31