Delhi District Court
Smt. Rekha Rani vs R. Narayanan on 11 September, 2015
IN THE COURT OF SH. SANJEEV KR. SINGH:
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNAL-02:
(CENTRAL):DELHI.
Case No. 309/14
Unique ID No. 02401C0176142014
1. Smt. Rekha Rani
W/o Late Sh. Mukesh Kumar
2. Yogesh Kumar
S/o Lt Sh. Mukesh Kumar
3. Ajay Kumar
S/o Lt. Sh. Mukesh Kumar
4. Manoj Kumar
S/o Lt. Sh. Mukesh Kumar
5. Shanti Devi
W/o Lt. Sh. Baldev Raj
All R/o 173C, DDA Flat, Gazipur,
Delhi-96.
.......... Petitioners
VERSUS
1. R. Narayanan
S/o Sh. R.S. Rajagopalan
R/o 47D, BB Block,
Janak Puri, New Delhi (Driver cum Owner)
2. United India Insurance Company Ltd.
2216, Hardhayan Singh Road,
Karol Bagh, Central, Delhi-05 (Insurer)
.......... Respondents
Date of institution : 11/04/2014 ( DAR) Date of reserving judgment/order : 27/08/2015 Date of pronouncement : 11/09/2015 AWARD:
1. This judgment cum award shall decide the petition under Section 166 and 140 of Motor Vehicle Act 1988 as amended up to date (hereinafter referred as Act) filed by petitioners for grant of compensation for the death of Sh. Mukesh Kumar @ Mukesh Verma in the road vehicular accident.
Suit No. 309/14 Page No. 1/122. The case of the petitioners is that on 22.08.2013 at about 08.10 p.m., while the deceased was driving his motorcycle bearing regd. no. DL-7SBE-5859 on New Rohtak Rani Jhansi Road and going from Eidgah side to Goal Paharganj side. The deceased was driving his above said motorcycle with due precaution and at a normal speed, when the deceased reached at a red light New Rohtak Rani Jhansi Road, T Point, near Mama Bhanja Dargah at the same time an offending vehicle Car bearing regd. No. DL-4CAH-8391 which was being driven with rash and negligent manner and at a very high speed came from behind side of the deceased and hit the motorcycle of which the deceased was riding. As a result of this accident the deceased fell down on the road and sustained grievous injuries on all his body as per MLC and postmortem report. The deceased was shifted to R.M.L hospital in precarious condition after his accident where his MLC was done by the doctor of this hospital. The deceased remained admitted in the hospital after this accident but doctors of this hospital could not save the life of the deceased and at last he succumbed to his injuries on 27/08/2013. His postmortem was conducted in Maulana Azad Medical & Lok Nayak Hospital on same day and the dead body of the deceased was handed over to the family member of the deceased. The petitioners have claimed a total sum of Rs. 1,00,00,000/- on account of compensation towards fatal injuries sustained by the deceased in the vehicular accident.
3. The written statement was filed by the Respondent No. 1 in which he described the contents of the petition to be false one.
4. The written statement was filed by Respondent No.2, insurance company wherein it was admitted that the offending vehicle was insured with it as on the date and time of accident.
5. On the pleadings of the parties following issues arose for consideration on 18/07/2014:-
1. Whether the deceased Mukesh Kumar suffered fatal injuries in an accident that took place on 22.08.2013 at about 8.10 p.m involving Honda City Car bearing NO. DL-4CAH-8391 driven and owned by the Respondent No. 1 and insured with the Respondent No. 2? OPP.
2.Whether the petitioner is entitled for compensation? If so, to what amount and Suit No. 309/14 Page No. 2/12 from whom?
3.Relief.
6. In order to establish their claim, the wife of the deceased examined herself as PW1.
7. The Respondents did not adduce any evidence in their defence.
8. I have thoroughly gone through the testimony of the witnesses and perused the record. I have also given thoughtful consideration to the arguments addressed by learned counsel for the parties.
My findings on aforementioned issues are as under :
ISSUE NO.1
9. The present petition is under Section 166 of M V Act, it was the bounden duty of the petitioner to prove that the respondent No.1 was rash and negligent in driving the vehicle at the time of accident.
10. The Police has filed the Detailed Accident Report (DAR) on record pertaining to case FIR etc. bearing No. 243/14 P.S. D.B.G. Road u/s 279/304-A IPC including chargesheet etc.
11. The PW-1 (wife of the deceased) has explained the mode and manner of the accident in his affidavit, Ex. PW1/A to the effect that on the date of accident while the deceased was driving his motorcycle bearing regd. no. DL-7SBE-5859 on New Rohtak Rani Jhansi Road and going from Eidgah side to Goal Paharganj side. The deceased was driving his above said motorcycle with due precaution and at a normal speed, when the deceased reached at a red light New Rohtak Rani Jhansi Road, T Point, near Mama Bhanja Dargah at the same time an offending vehicle Car bearing regd. No. DL-4CAH-8391 which was being driven with rash and negligent manner and at a very high speed came from behind side of the deceased and hit the motorcycle of which the deceased was riding. As a result of this accident the deceased fell down on the road and sustained grievous injuries on all his body as per MLC and postmortem report. The Suit No. 309/14 Page No. 3/12 deceased was shifted to R.M.L hospital in precarious condition after his accident where his MLC was done by the doctor of this hospital. The deceased remained admitted in the hospital after this accident but doctors of this hospital could not save the life of the deceased and at last he succumbed to his injuries on 27/08/2013. His postmortem was conducted in Maulana Azad Medical & Lok Nayak Hospital on same day and the dead body of the deceased was handed over to the family member of the deceased. The cross-examination carried on by the Respondent no. 2 (Insurance Company) is not suggestive of anything which may discard the claim of the petitioner that the driver of the offending vehicle was rash and negligent at the time of accident. The opportunity to cross examine PW-1 on the part of the Respondent No. 1 was closed on 19/08/2015.
12. The police has also filed the Crime Scene Report dated 26/09/2013 of Forensic Science Laboratory, Govt of NCT of Delhi alongwith the DAR. The observations of the said report is as under:-
The above mentioned car had scratch and dent marks on the front right door, scratch marks on the right mirror and black colour scratch marks on the right rear portion near the tyre & front right portion near the tyre.
The left leg guard of the motorcycle was found bent in forward direction, scratch marks with reddish and white colour paint smears were observed on that leg guard, scratch marks were observed on the front tyre and on the rubber of the left front foot rest, scratch marks were also observed on the left mirror.
The height of scratch mark on the right front door, on the rear right portion and on the right sided mirror of the car were of the same order to that of the height of scratch mark on bent leg guard, of the front foot rest and of the left mirror of the motorcycle respectively.
The above observations indicate that the two above mentioned vehicles were collided side by side with each other running in almost same direction. The direction of bending of leg guard and nature of scratch mark on car indicate that the velocity of car was relatively more to that of the motorcycle.
13. While determining the negligence, reliance can be placed upon the judgment of Hon'ble High Court of Delhi in 2009 ACJ 287, National Insurance Company Limited Vs. Pushpa Rana wherein in the Hon'ble High Court has held that in case the petitioner files the certified copy of the criminal record showing the completion of the investigation by the police or the issuance of charge sheet under section 279/304 A IPC or the certified copy of the FIR in addition to recovery memo and mechanical inspection report of the offending vehicle, these documents are sufficient proof to reach at the conclusion that the driver was negligent. It was further held that the proceedings under the Motor Suit No. 309/14 Page No. 4/12 Vehicles Act are not akin to the proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Further, in Kaushnumma Begum and others v/s New India Assurance Company Limited, 2001 ACJ 421 SC , it was held that the issue of wrongful act or omission on the part of driver of the motor vehicle involved in the accident is of secondary importance and mere use or involvement of motor vehicle in causing bodily injuries or death to a human being or damage to property would make the petition maintainable under section 166 and 140 of the Act.
14. It is also settled law that the term rashness and negligence has to be construed lightly while making a decision on a petition for claim for the same as compared to the word rashness and negligence as finds mention in the Indian Penal Code. This is because the chapter in the Motor Vehicle Act dealing with compensation is a benevolent legislation and not a penal one.
15. This aspect has also been considered recently by the Hon'ble High Court of Delhi in the case titled as United India Insurance Co. Ltd. Vd. Smt. Rinki @ Rinku & Ors in MAC App. No. 200/2012 decided on 23/07/2012. The Hon'ble High Court has held as under:-
"The Claims Tribunal was conscious of the fact that negligence is a sine qua non to a Petition under Section 166 of the Motor Vehicles Act, 1988(the Act). It is also true that the proceedings for grant of compensation under the Act are neither governed by the criminal procedures nor are a civil suit. A reference may be made to a judgment of the Supreme Court Bimla Devi and Ors. V Himachal Road Transport Corporation and Ors, (2009) 13 SC 530 where it was held as under:
"15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of any accident caused by a particular bus in a particular manner may not be possible to be done by the claimant. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied."
16. Therefore, considering all the documents filed by the petitioners specifically the site plan, FSL report, chargesheet, Mechanical Inspection Report of the motorcycle of the deceased and Mechanical Inspection Report of the offending vehicle, it is clear Suit No. 309/14 Page No. 5/12 that the respondent No.1 was driving the vehicle in a rash and negligent manner.
17. The issue No:1 therefore, goes in favour of the petitioners and against the respondents.
ISSUE NO.2: COMPENSATION
18. The copy of the election I card of the deceased Ex PW1/3 suggests that his age on 01.01.2008 was 46 years. The date of accident was 22/08/2013. Accordingly, the deceased was more than 51 years of age as on the date of accident.
19. The deceased was stated to be working as Sr. Engineer in B.S.E.S. Yamuna Power Ltd and was stated to be earning Rs.64,060/- per month. In this regard, the petitioners have relied upon the salary slip of the deceased for the month of July, 2013 duly verified by the IO and file alongwith the DAR Ex PW1/6. (Colly) vide which the salary of the deceased for the month of July 2013 is Rs. 62,929/-. The salary of the deceased in his salary slip has been shown as under:-
EARNINGS This month Arrears DEDUCTIONS This Arrears (Rs) (Rs) month (Rs) (Rs) Basic 21,240/- Income Tax 4,430/-
House Rent Allowance 7,872/- Relief Fund 682/-
Holiday Pay-Arr 1,478.90 LIC-I 1,032/-
Variable Dearness Allow 20,992.00/- LIC-2 2,065/-
Special Pay (Allowance) 1,200/- Recovery of round off 0.36-
Transport Allowance 2,880/- 347.10- amt
Scooter Conveyance 2,745/- Roundingoff adjustment 0.44
Family Planning Pay 350/- GPF 3000/-
Newspaper Allowance 150/- Death Relief Fund 15/-
Tea Allowance 500/- Rajghat Society 9,216/-
Grade Pay 5,000/- New Group Insurance 150/-
Scheme
62,929/- 1,131/-.80 20,590/- 0.80
TOTAL DEUCTIONS 20,590/
GROSS EARNINGS 64,060.80/- NET PAY 43,470/-
Suit No. 309/14 Page No. 6/12
20. In National Insurance Company Ltd. Vs Indira Srivastava and Ors., AIR 2008 SC 845, it was held by Hon'ble Supreme Court of India, vide para nos 8, 9, 17, 18 & 19:-
"8. The term 'income' has different connotations for different purposes. A court of law, having regard to the change in societal conditions must consider the the question not only having regard to pay packet the employee carries home at the end of the month but also other perks which are beneficial to the members of the entire family. Loss caused to the family on a death of a near and dear one can hardly be compensated on monetary terms."
9. Section 168 of the Act uses the work 'just compensation' which, in our opinion, should be assigned a broad meaning. We cannot, in determining the issue involved in the matter, lose sight of the fact that the private sector companies in place of introducing a pension scheme takes recourse to payment of contributory Provident Fund, Gratuity and other perks to attract the people who are efficient and hard working. Different offers made to an officer by the employer, same may be either for the benefit of the entire family. If some facilities are being provided, whereby the entire family stands to benefit, the same, in our opinion, must be held to be relevant for the purpose of computation of total income on the basis whereof the amount of compensation payable for the death of the kith and kin of the applicants is required to be determined. For the aforementioned purpose, we may notice the elements of pay, paid to the deceased:.
17. The amounts, therefore, which were required to be paid to the deceased by his employer by way of perks, should be included for computation of his monthly income as that would have been added to his monthly income by way of contribution to the family as contradistinguished to the ones which were for his benefit. We may, however, hasten to add that from the said amount of income, the statutory amount of tax payable thereupon must be deducted.
18. The term 'income' in P. Ramanatha Aiyar's Advanced Law Lexicon (3rd Ed.) has been defined as under:
"The value of any benefit or perquisite whether convertible into money or not, obtained from a company either by director or a person who has substantial interest in the company, and any sum paid by such company in respect of any obligation, which but for such payment would have been payable by the director or other person aforesaid, occurring or arising to a person within the State from any profession, trade or calling other than agriculture".
It has also been stated:
'INCOME' signifies 'what comes' in' (per Selborne, C., Jones v. Ogle, 42 LJ Ch. 336). 'It is as large a word as can be used' to denote a person's receipts (per Jessel, M.R.Re Huggins, 51 LJ Ch.938.) income is not confined to receipts from business only and means periodical receipts from one's work, lands, investment, etc. AIR 1921 Mad 427 (SB). Ref. 124 IC 511 : 1930 MWN 29:31 MLW 438 AIR 1930 Mad 629:58 MLJ 337."
19. If the dictionary meaning of the word 'income' is taken to its logical conclusion, it should include those benefits, either in terms of money or otherwise, which are taken into consideration for the purpose of payment of income-tax or profession tax although some elements thereof may or may not be taxable or would have been otherwise taxable but for the exemption conferred thereupon under the statute.
Suit No. 309/14 Page No. 7/1221. In New India Assurance Co. Ltd Vs Chand Tara Begum & Ors MAC. APP. 967/2013 decided on 11/02/2015 by the Hon'ble High Court of Delhi, it was held vide Para No. 5 that:-
The deceased was survived by his widow, daughter, son and aged parents. TA is paid to an employee for reaching the office irrespective of his actual expenditure upon reporting for duty. The deceased was working as a Junior Engineer. Since he was a qualified Engineer having a large family to support, deduction of TA in addition to 1/4th deduction toward personal expenses would not be appropriate. It may be mentioned that this entire TA would not have actually been used by the deceased for reaching the work place to carry out the employment.
22. In Jasvinder Singh & Ors Vs Lovkush Giri & Ors MAC. APP. 884/2011 decided on 02/12/2014 by the Hon'ble High Court of Delhi, it was held vide Para No. 14 that:-
In the light of the above legal position and the evidence placed on record, it is clear that the conveyance allowance and other allowances were cash in hand received by the deceased and his family and would have to be counted as part of the salary.
23. In the light of the above legal position, it is clear that the House Rent Allowance, Variable Dearness Allowance, Special Pay (Allowance), Transport Allowance, Scooter Conveyance, Family Planning Pay and Grade Pay are the part of the salary and the same was received by the deceased and his family members. So, same would have to be counted as a part of the salary of the deceased. Accordingly, the net monthly salary of deceased was Rs. 57,923.166p. (Rs. 62,929 Less Rs. 150 (Newspaper Allowance) Less Rs. 500/- (Tea Allowance) & Less 4355.83p (income tax). The same is rounded off to Rs. 57,923/-.
24. No appreciation towards future prospects can be given as the deceased was more than 51 years of age. This is because as held in judgment of Hon'ble Supreme Court of India in Sarla Verma Vs. DTC decided on 15.4.2009 in C.A. No. 3483/08, the permanent employees having more than 50 years of age are not entitled for any appreciation on account of future prospects after their death for the purpose of assessment of compensation under Motor Vehicle Act.
Suit No. 309/14 Page No. 8/1225. As per the judgment of Hon'ble Supreme Court of India in Sarla Verma (supra), one third of the income of the deceased is directed to be deducted towards personal and living expenses of the deceased and she has left behind four dependents. ( The Petitioner No. 2 is not considered upon the dependent upon the deceased). After deducting one- fourth towards personal expenses, the loss of dependency per month comes out to be Rs. 57,923/- less Rs. 14,480.75p/- = Rs. 43,442.25p The appropriate multiplier applicable is 11, as mentioned in Sarla Verma's judgment (Supra). The total loss of dependency comes out to Rs. 57,34,377/- (Rs. 43,442.25 x 12 x 11).
26. In terms of the aforesaid judgment in Rajesh's case(supra), the Hon'ble Supreme Court of India has granted Rs. 25000/- towards funeral charges, Rs. 1,00,000/- towards loss of consortium and Rs. 1,00,000/- towards loss of care and guidance for minor children, and Rs. 10,000/- toward loss of Estate. Accordingly, I award Rs. 1,00,000/- towards loss of consortium; Rs. 25,000/- towards funeral charges; Rs. 25,000/- towards love and affection and Rs. 10,000/- towards loss of Estate. Therefore, in total, I hereby award a sum of Rs. 58,94,377/- in favour of the petitioners and against the respondents.
RELIEF:
27. I award Rs. 58,94,377/-( Rupees Fifty Eight Lac Ninety Four Thousand Three Hundred Seventy Seven Only) as compensation with interest at the rate of 9% per annum including interim award, if any from the date of filing the petition i.e. 11/04/2014 in favour of the petitioners and against the respondents on account of their liability being joint and several. The Petitioner No.1 shall have 70% share in the award amount whereas the Petitioners No. 3 to 5 shall have 10% each share in the award amount. The Petitioner No. 2 shall have no share in the award amount.
28. Acting on the guidelines issued by Hon'ble Supreme Court of India G.M Kerala State Road Transport Corporation v/s S. Susamma Thomas (1994) 2 SCC 176 in order to avoid the money being frittered away, fifty percent(50%) of the amount awarded to aforementioned Petitioners No. 1, 3, 4 & 5 shall be kept in 5 Suit No. 309/14 Page No. 9/12 FDRs of almost equal amount in a Nationalized Bank for a period of 1,2,3,4 & 5 years. No loan or advance shall be allowed against the said fixed deposit. Petitioners can withdraw the interest quarterly from the said FDRs.
APPORTIONMENT OF LIABILITY
29. The Respondent No: 2 being the insurer, its liability is joint and several with other respondents. Accordingly, respondent No. 2 is directed to deposit the award amount within a period of 30 days. In case of any delay, it shall be liable to pay interest at a rate of 12% per annum for the period of delay.
30. The Hon'ble High Court of Delhi in its judgment in Union of India and Another Vs. Nanisari and Others MACA 682/2005 decided on 13.1.2010 have given certain guidelines and directions to the Motor Accident Tribunals to the effect that henceforth the Tribunals shall direct the insurance companies to deposit the award amount in the bank within 30 days with further direction as to the disbursement of the same in terms of the award and case be kept pending till the compliance is placed on record. The directions given by Hon'ble High Court of Delhi as mentioned and endorsed in the said order has already been re affirmed by Hon;ble Supreme Court of India in order dated 17.12.2009 in SLP (C) No. 11801-11804/2005 which contains certain schemes initiated for the benefit of the victims of the road accidents after the award amount is passed. The para no.18 of the judgment of the Hon'ble High court of Delhi runs as under:-
"19. To protect and preserve the compensation amount awarded to the families of the deceased victim special schemes may be considered by the insurance companies in consultation with the Life Insurance Corporation of India, State Bank of India or any other Nationalized Banks under which the compensation is kept in fixed deposit for an appropriate period and interest is paid by the Bank monthly to the claimants without any need for claimants having to approach either the Court or their counsel or the Bank for that purpose. The scheme should ensure that the amount of compensation is utilized only for the benefit of the injured claimants or in case of death, for the benefit of the dependent family. We extract below the particulars of a special Scheme offered by a nationalized Bank at the instance of the Delhi High Court:Suit No. 309/14 Page No. 10/12
(i) The fixed deposit shall be automatically renewed till the period prescribed by the Court.
(ii) The interest on the fixed deposit shall be paid monthly.
(iii) The monthly interest shall be credited automatically in the saving account of the claimant.
(iv) Original fixed deposit receipt shall be retained by the Bank in safe custody. However, the original pass book shall be given to the claimant along with the photocopy of the FDR.
(v) The original fixed deposit receipt shall be handed over to the claimant at the end of the fixed deposit period.
(vi) Photo identity card shall be issued to the claimant and the withdrawal shall be permitted only after due verification by the Bank of the identity card of the claimant.
(vii) No cheque book shall be issued to the claimant without permission of the Court.
(viii) No loan, advance or withdrawal shall be allowed on the fixed deposit without permission of the Court.
(ix) The claimant can operated the saving bank account from the nearest branch of UCO Bank on the request of the claimant, the bank shall provide the said facility."
31. It was further held in the judgment passed by Hon'ble High Court of Delhi in Nanisiri case (Supra) that "The State Bank of India and UCO Bank have formulated special schemes for the victims of the road accident on the above terms and, therefore, the order for the deposit should be made presently to State Bank of India through its Nodal Officer Mr. Chandra Mohan Ojha (Mb: 09412341376) Relationship Manager, Tis Hazari Branch, Tis Hazari or to UCO Bank through Mr. M M Tandon, Member- Retail Team, UCO Bank Zonal, Parliament Street, New Delhi (Mobile No.09310356400) as per the convenience of the victim /legal representatives of the victim. However, if any other bank agrees to provide the special scheme for victims of the road accident on the above terms, the deposit be permitted to be made in that Bank subject to the convenience of the victim/legal representative of the victim of the road accident".
Suit No. 309/14 Page No. 11/1232. In terms of the order of the Hon'ble High Court of Delhi the insurance company shall deposit the award amount in the State Bank of India, Tis Hazari Court Complex Branch, Delhi in the name of the petitioner/ petitioners in terms of the award and shall file the compliance report. It is made clear that at the time of the deposit of the award amount with the bank, the insurance company shall specifically mention the suit no. of the case, title of the case as well as date of decision with the name of court on the back side of the cheque. The insurance company shall also file the attested copy of the award attested by its own officer to the bank at the time of deposit of the amount with the bank.
33. The copy of this award be given to the insurance company as well as to the petitioner free of cost. The petitioner shall approach the State Bank of India, Tis Hazari Court Complex Branch, Delhi for opening the account.
34. The Manager of the Bank is directed to comply the award. The Bank Manager is directed to release the award amount to the petitioners. However, in case the amount is ordered to be kept in the FDR, the said amount should not be released unless the FDR is matured.
File be consigned to Record Room.
A separate file be prepared for compliance report and put up the same on 10/11/2015 to be fixed by insurance company.
Announced in the open court
on this 11th September day of 2015 (SANJEEV KUMAR SINGH)
PO: MACT02 (CENTRAL): DELHI
Suit No. 309/14 Page No. 12/12
Suit No. 309/14
11/09/2015
Present: None.
Judgment is announced vide separate sheets of even date.
File be consigned to Record Room.
A separate file be prepared for compliance report and put up the same on 10/11/2015, to be fixed by insurance company.
(SANJEEV KUMAR SINGH) PO: MACT-02(Central) : DELHI Suit No. 309/14 Page No. 13/12