Delhi District Court
Smt. Yogita Meena vs Hira Lal S/O Sh. Durga Prasad on 5 March, 2012
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IN THE COURT OF MS. PREETI AGRAWAL GUPTA:
JUDGE: MACT(OUTERI): ROHINI: DELHI
Case No. 442/09.
Unique Case ID no. 02404C0420032007.
1. Smt. Yogita Meena
S/o late Sh. Vikrant
R/o C108, Rama Vihar,Durga Mandir Road,
Sultanpuri,Delhi110041.
And also at : H.No. 618, Hazira Rasulabad,
Near Patel School, Gwalior( M.P.)
....Petitioners
Versus
1. Hira Lal S/o Sh. Durga Prasad,
K39, Krishan Vihar, Sultanpuri,
Delhi.
2. Radha Krishan S/o Sh. Roop Ram,
R/o N28, Budh Vihar, PhaseI,
Delhi.
3. National Insurance Company Ltd.
Through its Branch Manager/Authorised signatory,
Divisional Office: C32, Community Centre,
Industrial Area, PhaseI, Naraina, New Delhi28.
....Respondents
DATE OF INSTITUTION: 07.08.2007.
JUDGMENT RESERVED ON: 28.02.2012.
DATE OF JUDGMENT: 05.03.2012.
AWARD:
Yogita Meena Vs. Hira Lal & Ors.
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1. The present case has been filed by one Yogita Meena claiming herself to be widow /wife of the deceased Vikrant, seeking compensation for the death of the deceased on 26.04.2007 after he met with a road accident at 10.50 p.m. sustained grievous injuries for which he was taken to Sanjay Gandhi Memorial hospital immediately but could not survive and scummbed to his injuries on the same day.
2. By way of the present petition, the LR (s) of the deceased have sought compensation for irreparable monetary loss , mental agony, loss of love and affection and future prospects plus all other heads of compensation as per entitlement.
3. The claimants have filed the present petition U/s 166 &140 of M.V.Act on the ground that on 26.04.07, the deceased was going from Budh Vihar to his newly built house at Rama Vihar in a TSR No. DLIRE1656 and when the TSR reached near Bus Stand, Jain Nagar at Kanjhawala Road in the meanwhile, the offending vehicle Tempo TATA407 bearing no. DLILE7597 came from the opposite/wrong side at a very high speed without blowing horn and in a zigzag manner and very forcefully and violently hit the TSR in which the deceased and other co passengers were travelling. As a result of forceful impact, TSR got badly damaged and the passengers received Yogita Meena Vs. Hira Lal & Ors.
:3: grievous and fatal injuries. The deceased was immediately taken to Sanjay Gandhi Memorial hospital where during the treatment , the deceased died and thus deceased died an unnatural and untimely death in this fateful accident. The case was registered at P.S. Aman Vihar vide FIR 662/07 dt. 27.04.07 U/s 279/337/304A IPC ( 304A added later on death of Vikrant) against respondent no. 1.
4. It is the case of the claimants that Vikrant was aged about 35 years of age having sound health and physique and not suffering from any kind of ailment or addicted to any vice. The deceased was doing private service and was drawing a handsome amount of Rs. 10,000/ per month. It is stated that the petitioner was contributing more than 2/3 share of his income over the claimant for household expenses.
5. In the written statement filed on behalf of respondent no. 1 & 2 the driver and owner of the offending vehicle, preliminary objections have been raised on the ground that allegations of concealment of the true facts. Respondents no. 1 & 2 have raised objections on the rights of the petitioner(s) to file the claim petition and on merits, the claim of the petitioner is denied in toto. The factum of the alleged offending vehicle which is Tata Tempo - 407 bearing no. DLILE7597 have been denied. The respondent Yogita Meena Vs. Hira Lal & Ors.
:4: has also denied that such alleged accident took place with the offending vehicle or and have also claimed that respondent no. 1 was also driving the offending vehicle as alleged. Further allegations of rash and negligent driving by the driver of the TSR himself have been raised. The claim of the petitioner is denied.
6. In the written statement of respondent no. 3 filed on behalf of insurance company, the defence of discharge from liability to pay compensation to the petitioner has been taken in case of breach of any of the terms and condition of the insurance company as per provisions U/s 149 (2) of M.V.Act . Its liability has been denied for want of knowledge in respect of the factum of the occurrence of the accident and also on the ground that the highly exaggerated of imaginary claim of the exorbitant amount has been filed, hence, denying the claim of the petitioners.
7. From the pleadings of the parties, the following issues were framed vide orders dated dt. 27.02.08:
1. Whether on 26.04.07 at 10.50 p.m. near Main Kanjhawala Road, Tempo No. DLILE7597 which was being driven in a rash and negligent manner hit TSR No. DLIRE1656 and caused death of Sh. Vikrant? OPP.
2. Whether deceased himself was driving the TSR in a negligent manner, if so, its effect? OPR1 & 2.
Yogita Meena Vs. Hira Lal & Ors.
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3. Whether driver of the offending vehicle held valid DL? OPR1 & 2?
4. Whether the petitioners are entitled to compensation, as prayed for if so, from which of the respondents? OPP.
5. Relief.
8. After framing of the aforesaid issues, the petitioner has examined petitioner no. 1 as PW1 whereby the averments of the petition have been duly supported. It is averred that the deceased was earning Rs.8,000/ per month. In crossexamination by counsel for respondent no. 3/ insurance company, PW1 has stated that her deceased husband was 34 years of old at the time of death but she had not filed any document regarding the proof of his age. PW1 has testified that deceased used to manufacture seats which were affixed in buses and other vehicles. PW1 has further testified that she is not remarried and she is now staying with her brother at Gwalior. PW1 has testified that her deceased husband was 10th passed but she had not filed any proof regarding his qualification. In crossexamination, PW1 admitted that deceased was not an income tax assessee and she is not having any proof regarding his income. No other witness has been examined by the petitioners. Hence, P.E. was closed.
9. The respondent did not offer any respondent's Yogita Meena Vs. Hira Lal & Ors.
:6: evidence and accordingly, respondent evidence was closed.
10. The court has thereafter, heard arguments addressed by respective counsel for parties and duly appreciated the pleadings as well as the relevant material on record. After due appreciation of the aforesaid material and arguments in light of the evidence on record and the law applicable to the facts of the case, the issuewise findings are being determined as under:
ISSUE NO. 1:
Whether on 26.04.07 at 10.50 p.m. near Main Kanjhawala Road, Tempo No. DLILE7597 which was being driven in a rash and negligent manner hit TSR No. DLIRE1656 and caused death of Sh. Vikrant? OPP.
11. The present claim is based upon the case of the LR(s)/wife of deceased Vikrant that on 26.04.07, the deceased was going from Budh Vihar to his newly built house at Rama Vihar in a TSR No. DLIRE1656 and when the TSR reached near Bus Stand, Jain Nagar at Kanjhawala Road in the meanwhile, the offending vehicle which is a TATA407 Tempo bearing no. DLILE7597 came from the opposite/wrong side at a very high speed without blowing horn and in a zigzag manner and very forcefully and violently hit the TSR in which the deceased and other co passengers were travelling. As a result of forceful impact, Yogita Meena Vs. Hira Lal & Ors.
:7: TSR got badly damaged and the passengers received grievous and fatal injuries. The deceased was immediately taken to Sanjay Gandhi Memorial hospital where during the treatment , the deceased died on the same day and thus deceased died an unnatural and untimely death in this fateful accident.
12. Perusal of the MLC and the postmortem report of the deceased reveals that the deceased Vikrant was taken to Sanjay Gandhi Memorial Hospital after the accident after being seriously injured in a road accident but could not be saved and expired on the same day. Thereafter, the postmortem was referred and conducted the next day on 27.04.07 on the application of the investigating officer. The postmortem report is also duly proved on record and the perusal of the same shows the cause of death of the deceased due to injuries arising out of the road accident. Postmortem report evidently proves the cause of death of the deceased as a consequence of injuries sustained by him in the road accident. It is not a disputed fact that the FIR No. 662/07 under Section 279/337 IPC,PS Sultanpuri has been registered pursuant to the accident and Section 304A IPC was added on death of Vikrant and the respondent No.1 has been charge sheeted for trial before the Court of learned MM of competent jurisdiction. Certified copies of criminal record Yogita Meena Vs. Hira Lal & Ors.
:8: have been filed on Court record, which includes the relevant statements and documents of investigation. The testimony of PW1 is consistent and duly corroborates the factum of accident as averred in the petition, though, she is admittedly not an eye witness. It is evidently established on record that the offending vehicle, which is a TATA 407 bearing no. DL ILE7597 being driven in a rash and negligent manner thereby hitting the deceased, who was travelling in a TSR from the opposite side causing such injuries, which resulted in death of Vikrant.
13. In the written statement of respondent no. 1 & 2, the involvement of the offending vehicle bearing no. DL ILE7597 have been denied. It has also been denied that respondent no. 1 caused the accident by rash and negligent driving. The respondents no. 1 & 2 have outrightly denied that any accident took place with the vehicle of the respondent. There is no denial of the fact that respondent no. 1 was the driver of the offending evidence. No evidence has been led by either of the respondents no. 1 & 2 to substantiate their unbelievable and bald denial in the written statement.
14. The court has carefully appreciated the entire evidence relevant to this issue and also appreciated the documents which are available on record. The certified Yogita Meena Vs. Hira Lal & Ors.
:9: copies of criminal record has been perused which reveals that the offending vehicle bearing no. DLILE7597 was seized by the police from spot itself. Even TSR in which deceased was travelling was seized. Identity of Respondent no. 1 is beyond reasonable doubt as the PCR also took him alongwith other occupants of the TSR for medical treatment and examination to Sanjay Gandhi Memorial Hospital. Respondent no. 1 was driver of the offending vehicle TATA 407. The offending vehicle has been found to be fit for plying on the road as per Mechanical Inspection Report during investigation. In view of the aforesaid facts, it stands duly established that respondent no. 1 was the driver of the offending vehicle which has been involved in the accident.
15. As such, no eye witness has been examined by the petitioner(s) in order to lead substantive evidence to show that respondent no. 1 was driving the offending tempo, in question, rashly and negligently. However, the factum of occurrence of the accident in question involving the death of deceased Vikrant and injuries upon other persons has been duly established. There is one more injured Vijay Kumar who has suffered disability and is a claimant in a separate MACT petition bearing no. 443/09 against the respondents herein. Naturally, he shall be the eye witness of this accident in question. Though, there are no specific Yogita Meena Vs. Hira Lal & Ors.
:10: orders for consolidation of evidence during enquiry of the fatal case and the injury case arising out of the same road accident but it shall be needless to say that the court is not a mute and silent spectator to obvious facts which come to the judicial notice of the court. This court as a court of law is duly empowered to conduct such necessary enquiry and take judicial notice of all relevant facts for just and proper determination of the claim pending before the court.
16. One Vijay Kumar who sustained grievous injuries and thereafter suffered permanent disability has duly testified in his evidence of affidavit in suit no. 443/09 that the accident in question took place due to rash and negligent driving of respondent no. 1. His testimony is not challenged or breached on this material aspect.
17. In the light of the aforesaid discussion, it stands duly established that the deceased Sh.Vikrant S/o Sh. Om Parkash expired due to the injuries received in the roadside accident occurred on 26.04.2007 due to rash and negligent driving of respondent No.1/driver of offending vehicle No. DLILE7597. The issue is accordingly decided in favour of the petitioner and against the respondents. ISSUE NO. 2:
Whether deceased himself was driving the TSR in a negligent manner, if so, its effect? OPR1 & 2.
Yogita Meena Vs. Hira Lal & Ors.
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18. The onus to prove this issue has been casted upon respondent no. 1 and 2 being the driver and owner respectively. In the written statement filed on behalf of these respondents, preliminary objection has been taken on the ground that the deceased Vikrant himself was driving the alleged TSR and it has been prayed that petition be dismissed for concealment of material facts. Despite opportunity, respondents have failed to tender any evidence or draw attention of the court to any material fact which may even raise any suspicion on the manner and occurrence of the accident in question. It is the case of the petitioner(s) that the deceased was traveling in the victim TSR which was hit by the offending tempo thereby causing fatal injuries upon the deceased Vikrant. There is no material or facts and circumstances to show any factor to point out towards concealment of any material facts which may disentitle petitioner(s) to the present claim. Also, nothing has been brought on record to attribute any act of rash and negligent on the part of the deceased Vikrant in occurrence of the accident. The issue is decided against the respondents and against the petitioner(s).
ISSUE NO. 3:
Whether driver of the offending vehicle held valid DL? OPR1 & 2?
Yogita Meena Vs. Hira Lal & Ors.
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19. There is nothing on record to show any breach in terms and conditions of the insurance policy. The valid insurance in respect of the offending vehicle is admitted. The insurance company has not led any evidence to show that the respondent no. 1 was not having any valid driving licence or to claim any breach that may absolve the liability of insurance company as per section 149 (2) of M.V.Act. All the necessary document such as driving licence, permit and fitness in respect of the offending vehicle were seized during investigation as is apparent from the perusal of the certified copies of the criminal case record which has been filed by the Investigating Officer alongwith AIR. It is not the case before the court that any of these documents were not found genuine and no evidence has been led in this regard by any of the respondents. The issue is decided against the respondents and in favour of the petitioner (s). ISSUE NO. 4:
Whether the petitioners are entitled to compensation, as prayed for if so, from which of the respondents? OPP.
20. This issue is being consolidated in the present case as well as the other petition which has been filed by the other LR (s) of the deceased. In Suit No. 444/09, the petitioners are parents and major younger brother of the Yogita Meena Vs. Hira Lal & Ors.
:13: deceased whereas in Suit No. 442/09, the wife of the deceased is the petitioner. Although, two separate claim petitions have been filed for the same deceased. The petitioners in both the claim petitions shall be liable to share the entire compensation payable to the LR(s) of the deceased as for the determination of the court. They would however, be entitled to just and reasonable compensation.
21. The petitioners no.1& 2 are legal representatives of the deceased Vikrant being his parents of Vikrant, aged 32 years whereas petitioner no. 3 is major younger brother of deceased Vikrant. On account of loss of dependency, it is the claim of the petitioner (s) that the deceased was earning Rs. 10,000/ to Rs.15,000/ per month. The father of the deceased has relied upon bills and receipts of job work done by the deceased who was engaged in upholstery work of seats of automobiles. The certificate issued by one of the automobiles. Certificate issued by one of the Automobile Dealer has been filed which duly establishes the case of the petitioner that the deceased Vikrant was self employed engaged in labour and job work. However, there are no documents or Income Tax Returns to show the volume of earnings of the deceased. The age of the deceased is stated to be 32 to 35 years. The voter I Card and ration card of the deceased has been carefully perused and compared to infer Yogita Meena Vs. Hira Lal & Ors.
:14: conclusively that the deceased was aged 32 to 33 years at the time of death. Although, it has also been stated in petitioner's evidence that the deceased was matriculate but no proof thereof has been brought forth.
22. In the entirety of the facts and circumstances, it is appropriate to follow the schedule of Minimum Wages, keeping in view the judgment passed by Hon'ble High Court of Delhi in case titled Bharat Gulluani Vs. Aslam, 2009 (2) TAC 402 : I (2009) ACC 192 : (2009) 3 MAC 114 (Del) that "in this regard the thumb rule is that, where there is no cogent evidence on record to prove the monthly income at the time of accident, then, the Minimum Wages notified under the Minimum Wages Act prevalent at the time of accident can be taken into consideration".
23. In regard to the applicable category for assessing the minimum wages of deceased as no educational qualification has been tendered; the facts make it appropriate to consider the category of deceased under the "skilled head"
and keeping in view the age of deceased, he must have worked and accordingly, the applicable minimum wages are Rs. 3,864/. It is well settled and endured principle of law for assessment of compensation on the basis of minimum wages, in view of the judgments of Hon'ble High Court titled Kanwar Devi Vs. Bansal Roadways, 2008 SCJ 2182;
Yogita Meena Vs. Hira Lal & Ors.
:15: National Insurance Company Limited Vs. Renu Devi, III (2008) AC 134; and UPSRTC Vs. Munni Devi, MAC. APP.
No.310/2007 that the minimum wages get doubled in the period of 10 years and therefore, once, the income of the deceased is determined under the Minimum Wages Act, then increase in the minimum wages can also be taken into consideration as the minimum wages are revised by the government every year so as to meet the increase in the price index and inflation rate. It is further well settled that the Court should take judicial notice of increase in the minimum wages. In accordance with the judgment of Hon'ble Supreme Court titled Smt. Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr., SLP (C) No. 8648 of 2007, the addition on account of future prospects to the extent of 50% is taken as deceased was 32 years of age at the time of accident according to the ration card and election card. Therefore, the income of the deceased comes to Rs. 5,796/ (3,864 + 1,932) per month. In the claim petition No. 444/09, though, petitioner no. 3 has been impleaded as a dependent but no evidence has been tendered to show dependency of petitioner no. 3 who is 21 years of age, male and brother of deceased. It is also not out of place to mention that the petition is silent about the marriage of the deceased to Yogita who is petitioner in Suit NO. 442/09. Also, the Yogita Meena Vs. Hira Lal & Ors.
:16: petitioner/wife of deceased in Suit No.442/09 has been appearing before the court in the petition who has been taken up on the same dates of hearing as in Suit No. 444/09 and during the evidence or thereafter, till the final hearing of the case, there have been no contention before the court challenging or disputing the marriage of Yogita with deceased. Therefore, there are three dependents upon the deceased including his widow and parents. As already discussed above, the major brother of deceased shall not be the rightful claimant to receive compensation as no dependency upon the deceased has been shown. In view of aforesaid judgment, 1/3rd is to be deducted towards personal and living expenses from the income of the deceased, as he was having three dependents. The monthly contribution of the deceased to his family is calculated @ Rs.3,864/ (5,7961932). Taking the age of the deceased as 32 years at the time of accident, the multiplier of 16 is applicable.(the choice of multiplier has been made as per the age of the deceased in view of the surviving widow). The loss of dependency is therefore calculated @ Rs. 7,41,888/. (3864 x 12 x 16).
24. This amount is liable to be divided into two parts. One share shall be given to the wife of deceased Yogita in suit no. 442/09 and the other /second equal share Yogita Meena Vs. Hira Lal & Ors.
:17: shall be given jointly to petitioners no. 1 & 2 being parents of deceased in suit no. 444/09. To clarify further, in order to avoid any confusion, the total compensation on account of the head "loss of dependency" shall be divided in such a manner that the widow of the deceased shall be entitled to half of the computed amount on account of "loss of dependency" and the other half shall be shared between the parents of the deceased.
25. To this, an amount of Rs. 10,000/ is added towards funeral and miscellaneous expenses, which the petitioners would have incurred due to the death of the deceased to be decided equally in two claim petitions.
26. In accordance with the judgment of Hon'ble Supreme Court titled Smt. Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr. (Supra), an amount of Rs 10,000/ is granted towards loss of consortium as the deceased has left behind his wife ( in Suit no. 442/09) and another amount of Rs 10,000/ is added towards loss of estate to be equally divided in both the petitions. The petitioners No.1 & 2 in suit no. 444/09 being parents of the deceased are also entitled for compensation on account of loss of love and affection. The petitioner No. 1 & 2 in suit no. 444/09 are parents of the deceased and are accordingly, entitled for compensation in sum of Rs. 20,000/ on account Yogita Meena Vs. Hira Lal & Ors.
:18: of loss of love and affection.
Thus, the total compensation payable to petitioners is detailed as below:
1. Loss of dependency Rs. 3,70,944/
2. Funeral & miscellaneous expenses Rs. 5,000/
3. Loss of estate Rs. 5,000/
4. Loss of Consortium Rs. 10,000/ ___________ Total compensation Rs. 3,90,944/ Less Interim Compensation Rs. 40,000/ (as per shares apportionment vide interim award Dt.27.02.08) TOTAL Rs. 3,50,944/
27. So far as the liability to pay the compensation is concerned, there is nothing proved on behalf of respondent No. 3/insurance company to show that there has been any violation of the terms and conditions of the insurance policy. In its written statement, number of technical objections have been taken. It is well settled binding principle of law as held in National Insurance Company Limited Vs. Swarn Singh & Ors., AIR 2004 SC 1531 (1) that "it is beyond any doubt or dispute that under Section 149(2) of Motor Vehicle Act, any insurer can defend the action on any of the ground mentioned therein". It has been further held that the liability of the insurer is a statutory one. The liability of the insurer to satisfy the decree in favour of a third party is also statutory. It has been further held that the insurance companies are, with a view to avoid their Yogita Meena Vs. Hira Lal & Ors.
:19: liability must not only establish the available defences in terms of Section 149(2)(a)(ii) of Motor Vehicle Act but must also establish breach, on the part of the owner of the vehicle and the burden to proof of the same is upon the insurer. In the instant case, the insurance company has not brought forth any available defence, in order to escape its liability or to show any "breach" on the part of the offending vehicle. In these circumstances, respondent No.1 being the driver is primarily liable to pay the compensation. The respondents No.2 and 3 being the owner and insurer are vicariously liable to pay the compensation. In the aforesaid, the compensation is payable by the respondent No.3 being the insurer as on the date of accident. This issue is decided accordingly.
RELIEF:
28. In view of the aforesaid discussions, I hereby hold that petitioner is entitled to a sum of Rs.3,90,944/ along with interest @ 7.5% per annum from the date of filing of present. However, amount if any, paid by way of interim award shall be liable to be adjusted.
29. Out of the awarded amount, in terms of the guidelines issued by Hon'ble Supreme Court of India in "General Manager, Kerala State RTC Vs. Mrs. Susamma Thomas and others" for appropriate investments to safeguard the amount from being frittered away by the beneficiaries owing to ignorance, illiteracy and susceptible to exploitation, the award shall be disbursed in Yogita Meena Vs. Hira Lal & Ors.
:20: favour of the petitioner on the following terms:
(i) A sum of Rs. 1,00,000/ be kept in an FDR for a period of two years.
(ii) A sum of Rs. 75,000/ be kept in an FDR for a period of three years.
(iii) A sum of Rs. 75,000/ be kept in an FDR for a period of five years.
The remaining amount alongwith accrued interest be released in her favour .
30. The FDR's shall have no facility of loan or advance. Petitioners can withdraw the interest monthly/quarterly. The FDRs will not be encashed without permission of the court.
31. In view of the aforesaid findings and in terms of the award /order of this court, the petition is disposed off in aforesaid terms. Respondent no. 3 is directed to deposit the cheque in the name of the claimant within 30 days before this Tribunal. Respondent No.3 is also directed to furnish certificate of TDS if applicable. File be consigned to Record Room.
ANNOUNCED IN THE OPEN (PREETI AGRAWAL GUPTA)
COURT ON 05.03.2012 JUDGE MACT: ROHINI
(OUTERI): DELHI
Yogita Meena Vs. Hira Lal & Ors.
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Suit No. 442/09.
05.03.2012:
Present: None.
Vide separate detailed award, dictated and announced in the
court today, an award in sum of Rs.3,90,944/ alongwith interest payable from the date of petition is hereby passed in favour of the petitioners and against the respondents with liability to pay upon the respondent no. 3/ insurance company. Respondent No.3 is directed to deposit the cheque in terms of the award within 30 days before this Tribunal. Petition is disposed of in aforesaid terms. File be consigned to Record Room.
(PREETI AGRAWAL GUPTA) JUDGE MACT: ROHINI (OUTERI): DELHI Yogita Meena Vs. Hira Lal & Ors.