Delhi District Court
Sh. Rakesh Passi S/O Sh. B.N. Passi ... ... vs Hawa Singh S/O Sh. Hanuman Singh on 8 April, 2015
IN THE COURT OF MS. RAVINDER BEDI : PRESIDING
OFFICER, MOTOR ACCIDENTS CLAIMS TRIBUNAL :
KARKARDOOMA COURTS : EAST DISTRICT : DELHI.
MAC PETITION NO : 264 OF 2008
UNIQUE CASE ID NO: 02402C0265342008
1.Sh. Rakesh Passi S/o Sh. B.N. Passi ... Father
2.Smt. Neelam Passi W/o Sh. Rakesh Passi ... Mother
Both R/o D - 606, UNESCO Apartments,
Patparganj, Delhi. ... Petitioners
VERSUS
1.Hawa Singh S/o Sh. Hanuman Singh
R/o Vill. Rayali, P.S. Bhuana,
Jhunjhun, Rajasthan. ... Driver
2.Raj Kumar Jaat S/o. Sh. Ram Sahai
R/o Via. Late Ka Bass, Dhanni Sagar
Sahahpura, Distt Jaipur, Rajasthan. ... Owner
3.Bajaj Allianz General Insurance Co. Ltd.
C - 31/32, First Floor, Connaught Place,
New Delhi - 110 001. ... Insurer
... Respondents
Represented by : Mr. Arun Sharma, Counsel for petitioners.
Respondents no.1 & 2 exparte.
Mr. M.P. Shahi, Counsel for respondent no.3.
MAC No.264/08 Rakesh Passi & Ors. Vs. Hawa Singh & Ors. Page : 1/17
Date of institution : 11.04.2008
Reserved for orders : 30.03.2015
Date of Award : 08.04.2015
A W A R D
1. The petitioners have filed present claim petition under Section 166 & Section 140 of M.V. Act claiming compensation for the death of their son Abhinav Passi in a road accident which occurred on 07.10.2007.
2. It is stated in the petition that on 07.10.2007 at about 5.00 AM, deceased Abhinav Passi was going to his house on his Car Octavia No.DL7CE4949. As he reached near NH24, Akshardham Mandir, a Truck bearing registration no. RJ14GB4722 (hereinafter referred to as the offending vehicle), going ahead of his car, in a high speed, suddenly applied brakes, due to which the car of the deceased dashed against the truck. The deceased suffered serious crush injuries and was taken to LBS Hospital where he was declared as 'Brought Dead'. A case FIR No.527/07 U/s 279/304A IPC was registered at Police Station Pandav Nagar, against the Respondent no.1.
3. It is stated that respondent no.1 is the driver, respondent no.2 is the insured and respondent no. 3 is the Insurer and they all are jointly MAC No.264/08 Rakesh Passi & Ors. Vs. Hawa Singh & Ors. Page : 2/17 and severally liable to pay compensation to the petitioners.
4. The respondents no.1 and 2 have filed joint Written Statement and stated that the accident had happened due to the sole negligence of the deceased; that they were falsely implicated in the present case; that the offending vehicle was insured with the respondent no. 3.
5. The Respondent no. 3 in its Written Statement has admitted the offending vehicle was insured with the insurance company vide an Insurance Policy valid for a period from 25.07.2007 to 24.07.2008; that the accident happened on account of the negligence of deceased himself, who was driving his car in a rash manner and high speed.
6. On the basis of the pleadings, following issues were framed by Ld. Predecessor vide order dated 27.04.2011 :
i) Whether petitioners prove that they are the only surviving legal heirs of deceased Abhinav Passi?
ii) Whether petitioners prove that deceased Abhinav Passi suffered fatal injuries in road accident on
07.10.2007 involving Truck bearing No. RJ14GB4722 driven allegedly in a rash and negligent manner by R1?
iii) To what amount of compensation, if any, the petitioners are entitled to and from whom?
MAC No.264/08 Rakesh Passi & Ors. Vs. Hawa Singh & Ors. Page : 3/17
iv) Relief.
7. Sh. Rakesh Kumar Passi, father of deceased appeared as PW1 and filed his affidavit Ex.PW1/1 stating therein the facts as stated by him in the petition. He relied upon the documents i.e. Increment Letter as Ex.PW1/A, salary and benefit structure as Ex.PW1/B, copy of Ration Card as Ex.PW1/C and Criminal case record as Ex.PW1/D (colly.). Petitioners also examined PW2 Sh. Santosh Mishra, Executive from M/s. Tech Mahindra Limited who has proved documents i.e. Appointment Letter as Mark A, letters dated 20.06.2007 as Mark B & C and salary slips for the month of January 2007 to September 2007 as Mark D. PW3 Sh. Vinod Kumar is the eye witness of the accident.
8. The Respondent no.3 has examined Sh. Phaneendra, a Forensic Expert from M/s. Clue4Evidence Forensic Investigation Pvt. Ltd. as R3W1 who has filed his affidavit Ex.R3W1/A. He relied upon the documents i.e. Collision Analysis & Reconstruction Report dated 01.08.2014 as Ex.R3W1/1.
9. The respondents no.1 and 2 did not come up with any evidence despite opportunities provided to them and were proceeded ex parte.
10.I have heard Ld. Counsels for parties, perused the entire material carefully in the light of relevant statutory provisions of law and my MAC No.264/08 Rakesh Passi & Ors. Vs. Hawa Singh & Ors. Page : 4/17 observations on the issues are as follows : ISSUE NO. 1 :
Whether petitioners prove that they are the only surviving legal heirs of deceased Abhinav Passi?
11.In order to decide this issue, the testimony of PW1 Sh. Rakesh Kumar Passi, father of deceased is relevant. He testified that the deceased left behind his parents as legal representatives. His Testimony is corroborated by the DAR filed by IO wherein the name of the petitioners are specified as legal representatives of deceased. The documents on record clearly establish that the petitioner no.1 is father and petitioner no.2 as mother of deceased. On the other hand, no contra evidence has been brought on record by respondents. In such circumstances, there is no reason to disbelieve the testimony of PW1. I hold that petitioners are the only legal representatives of the deceased. The issue is decided accordingly.
ISSUE NO.2 :
Whether petitioners prove that deceased Abhinav Passi suffered fatal injuries in road accident on 07.10.2007 involving Truck bearing No. RJ14GB4722 driven allegedly in a rash and negligent manner by R1?
12.For succeeding in a claim petition filed under Section 166 of the MAC No.264/08 Rakesh Passi & Ors. Vs. Hawa Singh & Ors. Page : 5/17 M.V. Act, it is for the petitioners to prove that the vehicle which caused the accident was being driven rashly and negligently by its driver. PW1 testified that on 07.10.2007, his son Abhinav Passi, while going in his car Octavia was hit by a truck ahead of him. He testified that the truck was driven by respondent no.1 in a high speed and rash manner and its driver applied sudden brakes as a result of which deceased could not control the speed of his car and rammed against the truck.
13.The petitioners also filed the affidavit of the eye witness namely Vinod Kumar as PW3. The FIR was registered on DD No.7A. PW3 Vinod Kumar is the eye witness of the accident. He testified that he was also coming from Nizamuddin side by Car no.DL3CK2489 and at about 3.00 PM, he saw the car of the deceased driven to his left side. As he reached near Akshardham Temple, he saw the offending truck being driven by its driver at a very high speed and in negligent manner. He testified that the driver of truck applied sudden power brakes, due to which, the car of deceased coming behind dashed into the truck. He testified that he heard a noise but did not see the accident with his own eyes. He came out of his car and saw the driver of the truck who after seeing the injured in an unconscious condition, fled away from the spot after leaving the truck. In his cross examination, he stated that the MAC No.264/08 Rakesh Passi & Ors. Vs. Hawa Singh & Ors. Page : 6/17 truck was being driven at a speed of 3040 k.m. per hour. He stated that he heard the noise of accident at a distance of half k.m. from the spot. He stated that he was told by the passersby that the truck driver had suddenly applied brakes and stopped as a result of which, the car of the deceased at behind had collided. He stated that the truck had overtaken his car from left side at a speed of 5560 k.m. per hour.
14.In Bimla Devi & Ors. Vs. Himachal Road Transport Corporation & Ors., (2009) 13 SC 530, the Hon'ble Supreme Court held that in a petition under Section 166 of the Act, the petitioners were merely to establish their case on the touchstone of preponderance of probability and holistic view is to be taken while dealing with the Claim Petition under the Motor Vehicles Act. Para 15 of the report is extracted hereunder :
"15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the petitioners. The petitioners 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."
15.The report in Bimla Devi (Supra) was relied on by the Hon'ble MAC No.264/08 Rakesh Passi & Ors. Vs. Hawa Singh & Ors. Page : 7/17 Supreme Court in its judgments in Parmeshwari Vs. Amir Chand, (2011) 11 SCC 635 and Kusum Lata Vs. Satbir, (2011) 3 SCC
646." In the case of National Insurance Company Ltd. v. Pushpa Rana & Ors., 2009 ACJ 287, the Hon'ble High Court of Delhi has held that :
"......... On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced: (i) certified copy of the criminal record of criminal case in FIR No.955 of 2004, pertaining to involvement of the offending vehicle; (ii) criminal record showing completion of investigation of police and issue of chargesheet under Sections 279/304A, Indian Penal Code against the driver; (iii) certified copy of F.I.R., wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of the deceased. These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under the Motor Vehicles Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Hence, this contention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on the part of the driver".
16.In Rajrani & Ors. Vs. Oriental Insurance Co. Ltd. & Ors., 2009 (4) TAC 385 (SC), the principles of contributory negligence were discussed by the Hon'ble Apex Court, which also discussed the MAC No.264/08 Rakesh Passi & Ors. Vs. Hawa Singh & Ors. Page : 8/17 judgment in Pramod Kumar Rasikbhai Jhaveri Vs. Karmasey Kunvarji & Ors., (2002) 6 SCC 455. Ld. Counsel for the insurance company pleaded the negligence of the deceased and pleaded contributory negligence on his part. Ld. Counsel relied upon the judgment in Prasanna Vs. Kerala SRTC, 2009 ACJ 2719. In that case, the driver of bus suddenly applied brakes without indication or signal and the school bus following it had hit the bus. It was observed that application of the sudden brakes was a reflex action and it was not a premeditated thing done after giving indication or signals to the vehicle following it. The vehicle following another vehicle had to take into account the eventuality of the vehicle going in front, stopping abruptly due to a person or animal jumping in front of it or another vehicle interfering in its way or even a sudden obstacle appearing on the road.
17.In the present case also, the applying of sudden brakes by the offending truck is the cause of the collision, where the offending truck suddenly stopped and thus collided with the car of deceased from behind. Having looked into the record as well as the Report Ex.R3W1/1 which is based on the photographic examination, the facts and circumstances clearly infer that the Octavia Car collided from the left rear side of the truck. The mechanical inspection MAC No.264/08 Rakesh Passi & Ors. Vs. Hawa Singh & Ors. Page : 9/17 report of the damaged Octavia car shows the fresh damages on the front portion upto front seat totally damaged with both side front doors totally damaged, M/System out of order with the roof totally bended. There is clear evidence that the car of the deceased was going to the extreme left lane, reserved for the heavy vehicles. The driver did not appear before the Tribunal despite opportunity to give his version of accident, and had rather run away from the place of accident. This Tribunal from facts and circumstances, concludes that the accident had taken place due to application of sudden brakes by the offending truck going at high speed, in the middle of the road, thus resulting in the collision with the Octavia Car coming from behind.
18.The Tribunal has looked into the criminal case record, Site Plan, Mechanical Inspection Report showing the impact and damage caused to the vehicles as well as the testimony of witnesses. Site plan (Part of DAR) shows the location of the offending truck and the Octavia Car. It shows that road NH24 had a road divider and the truck was driven to the extreme left of the road. As per rules of the Road Regulations 1989, where the road is marked by lanes for the movement of traffic, the driver of the vehicle has to drive within the lane. On such channalized roads, any vehicle proceeding in the same direction, while trying to overtake cannot cross the MAC No.264/08 Rakesh Passi & Ors. Vs. Hawa Singh & Ors. Page : 10/17 yellow line, that divides the road. The manner and the extent of damage suggests that the car was being driven at a considerably high speed without maintaining the adequate required distance. The record shows that Octavia car was driven to the extreme left side of the road, which is a lane for heavy vehicles i.e. trucks and buses. (DTC Vs. Ravikanta Nagpal, IV (2008) ACC 80). Thus the contributory negligence on the part of the deceased cannot be ruled out. I am placing reliance upon the judgment in support of my observations which are as follows : (i) Rajrani (Supra), (ii) Mrs. Updesh Kaur & Ors. Vs. Jagram & Ors., III (2004) ACC 106, (iii) Renuka Devi H. Vs. Banglore Metropolitan Transport Corporation, 2008 ACJ 1188, (iv) Sri Krishna Vishveshwar hegde Vs. General Manager, Karnataka, SRTC, 2008 ACJ 1617.
19.In such a situation, the liability of the offending truck is taken as 50% and with the liability of the deceased for contributory negligence as 50%. This issue is thus partly decided in favour of the petitioners.
ISSUE NO.3 :
To what amount of compensation, if any, the petitioners are entitled to and from whom?
20.PW1 Sh. Rakesh Passi stated that his son was taken to LBS MAC No.264/08 Rakesh Passi & Ors. Vs. Hawa Singh & Ors. Page : 11/17 Hospital where he was declared as 'Brought Dead'. The Postmortem Report of deceased opined the cause of death as 'Shock due to cranio cerebral damage consequent upon blunt force impact to the head with all injuries as antemortem in nature and recent in duration'. PW1 testified that his son was a Computer Engineer and employed with M/s. Tech Mahindra Ltd. in Noida, U.P. He testified that besides an annual package of Rs. 4,46,000/ and other allowances, he was also getting increments. He testified that the deceased had a bright carrier ahead. PW2 Sh. Santosh Mishra, Executive from M/s. Tech Mahindra Ltd. has proved the salary slips of the deceased as Mark D. As per Mark A, deceased was appointed as Technical Associate at Grade G1. In view of the judgments in Manasvi Jain Vs. DTC, II (2014) ACC 420 (SC) and another judgment of Hon'ble Apex Court in Shyamwati Sharma & Ors. Vs. Karam Singh & Ors., V (2010) SLT 328, after necessary deductions of conveyance allowance, as per Ex.PW1/A and PW1/B which shows his revised annual salary as Rs.4,01,400/ w.e.f. 01.04.2007, his salary is taken as Rs. 3,91,800/ per annum (Rs.4,01,400.00 - Rs.9,600.00). After deduction of Tax of Rs.19,000/, the same comes to Rs.3,72,800/ per annum.
MAC No.264/08 Rakesh Passi & Ors. Vs. Hawa Singh & Ors. Page : 12/17
21.In view of judgments rendered in "Sarla Verma & Ors. Vs. DTC & Anr., (2009) ACJ 1298", "National Insurance Co. Ltd. Vs. Shyam Singh & Ors., (2011) 7 SCC 65" and in "HDFC Ergo General Insurance Co. Ltd. Vs. Lalta Devi & Ors. decided on 12.01.2015 by Hon'ble Delhi High Court", while assessing the dependency in case of death of an unmarried, the multiplier of 5 shall be applicable. The age of the Smt. Neelam Passi, mother of deceased is to be taken as 65 years as per Ration Card Ex.PW1/C as on the date of accident.
22.In HDFC Ergo General Insurance Co. Ltd. Vs. Lalta Devi & Ors. (Supra), in which the judgment of Hon'ble Apex Court in Reshma Kumari & Ors. Vs. Madan Mohan & Anr., (2013) 9 SCC 65 and in Union of India & Ors. Vs. S.K. Kapoor, (2011) 4 SCC 589 and further of The New India Assurance Company Ltd. Vs. Harpal & Others, MAC APP 138/11 decided on 06.09.2013 were discussed and the three Judge Bench Decision in Reshma Kumari & Ors. (Supra) was held to be taken as a binding precedent on the aspect of future prospects. Relying upon the judgment of Hon'ble High Court of Delhi in HDFC Ergo General Insurance Co. Ltd. Vs. Lalta Devi & Ors., I am of the view that the petitioners are not entitled to any addition towards the future prospects. MAC No.264/08 Rakesh Passi & Ors. Vs. Hawa Singh & Ors. Page : 13/17
23.The deceased was unmarried and aged 29 years at the time of accident. In view of the judgment "Sarla Verma (Supra)", half from the income of deceased has to be deducted towards his living expenses. After such deduction, the contribution to the family (dependent) comes to Rs.1,86,400/ per annum [ Rs.3,72,800.00 - (½) ]. Thus, the compensation under the head Loss of Dependency by applying the multiplier 5 would be Rs.9,32,000/ (Rs. 1,86,400.00 x 5).
24.In view of the judgments in Rajesh & Ors. Vs. Rajbir Singh & Ors. (Supra) and another in Kalpana Raj & Ors. Vs. Tamilnadu STC, (2014) ACJ 1388, the petitioners are also entitled to a sum of Rs.1,00,000/ towards loss of Love and Affection, towards Loss of Estate and Rs.25,000/ towards Funeral Expenses.
25.The petitioners thus have become entitled for the total amount of compensation towards all the heads, which is as follows : Sl. No. On Account of Amount (Rs.) 1 Loss of dependency Rs.9,32,000.00 2 Loss of Love and affection Rs. 1,00,000.00 3 Loss of Estate Rs. 10,000.00 4 Funeral Expenses Rs. 25,000.00 Total = Rs.10,67,000.00 MAC No.264/08 Rakesh Passi & Ors. Vs. Hawa Singh & Ors. Page : 14/17 I accordingly award an amount of compensation of Rs. 10,67,000/ in favour of the claimant and against respondents.
LIABILITY
26.Considering 50% as the Contributory Negligence on the part of deceased, the compensation amount to which the petitioners are entitled would be Rs.5,33,500/. Since the Insurance Company has admitted the policy as on the date of accident, therefore, it is Respondent no.3/Insurance Company which is liable to pay the compensation amount. Since, no violation u/s 149 (2) (a) of M.V. Act could be established by Respondent no.3, in such circumstances, it is the Insurance Company, which shall be responsible for the payment of compensation.
A W A R D
27.The petition stands allowed. The respondent No.3/Insurance company is hereby directed to pay the compensation of Rs. 5,33,500/ within one month to the petitioner no.2 (mother of deceased). Following the judgment of Smt. Bishekha Devi & Anr. Vs. Mohd. Afsar & Ors. MAC. APP. 1087/2012 passed by Hon'ble Delhi High Court, the Insurance Company shall also pay interest @ 9% p.a. on the total compensation amount from the date of petition till realization to the petitioners.
MAC No.264/08 Rakesh Passi & Ors. Vs. Hawa Singh & Ors. Page : 15/17
28.Out of total amount of Award, a sum of Rs.53,500/ shall be released to petitioner no.2 (mother of deceased) forthwith and remaining amount shall be kept in the form of one FDR for a period of five years, with release of monthly periodical interest to her.
29.The interest on the aforesaid Fixed Deposit shall be paid monthly by Automatic Credit of Interest in the Savings Account of petitioner.
30.Withdrawal from the said Account shall be permitted to petitioner after due verification and Bank shall issue Photo Identity Card to petitioner to facilitate Identity.
31.The original Fixed Deposit Receipt shall be retained by the Bank in safe custody. However, original Passbook shall be given to the petitioner with photocopy of FDR. On expiry of period of each FDR, the Bank shall automatically credit the maturity amount in Savings Account of beneficiary.
32.No loan, advance, withdrawal shall be allowed on the said FDR without permission of this court.
33.Half yearly statement of account be filed by the Bank in this court.
34.On request of petitioner, Bank shall transfer the Savings Account to any other branch.
MAC No.264/08 Rakesh Passi & Ors. Vs. Hawa Singh & Ors. Page : 16/17
35.The award amount alongwith interest be deposited by the Insurance Company, within 30 days in the court. In case, the Insurance Company fails to deposit this compensation with proportionate interest, in that event, in the light of the judgment of the Hon'ble High Court of Delhi in the case of New India Assurance Company Limited Vs. Kashmiri Lal, 2007 ACJ 688, this compensation shall be recovered by attaching the bank account of the Insurance Company with a cost of Rs.10,000/.
File be consigned to Record Room.
Announced in the open Court
Dated : 8th April, 2015 (MS. RAVINDER BEDI)
PRESIDING OFFICER MACT (EAST)
KARKARDOOMA COURTS, DELHI.
MAC No.264/08 Rakesh Passi & Ors. Vs. Hawa Singh & Ors. Page : 17/17
MAC NO. 264/08
08.04.2015
Present : Ld. Counsels for the parties.
Vide separate order announced in the open court today, the petition stands allowed. The respondent No.3/Insurance company is hereby directed to pay the compensation of Rs.5,33,500/ within one month to the petitioner no.2 (mother of deceased). Following the judgment of Smt. Bishekha Devi & Anr. Vs. Mohd. Afsar & Ors. MAC. APP. 1087/2012 passed by Hon'ble Delhi High Court, the Insurance Company shall also pay interest @ 9% p.a. on the total compensation amount from the date of petition till realization to the petitioners.
Out of total amount of Award, a sum of Rs.53,500/ shall be released to petitioner no.2 (mother of deceased) forthwith and remaining amount shall be kept in the form of one FDR for a period of five years, with release of monthly periodical interest to her.
The interest on the aforesaid Fixed Deposit shall be paid monthly by Automatic Credit of Interest in the Savings Account of petitioner.
Withdrawal from the said Account shall be permitted to petitioner after due verification and Bank shall issue Photo Identity Card to petitioner to facilitate Identity.
The original Fixed Deposit Receipt shall be retained by the Bank in safe custody. However, original Passbook shall be given to the petitioner with photocopy of FDR. On expiry of period of each FDR, the Bank shall automatically credit the maturity amount in Savings Account of beneficiary.
No loan, advance, withdrawal shall be allowed on the said FDR without permission of this court.
Half yearly statement of account be filed by the Bank in MAC No.264/08 Rakesh Passi & Ors. Vs. Hawa Singh & Ors. Page : 18/17 this court.
On request of petitioner, Bank shall transfer the Savings Account to any other branch.
The award amount alongwith interest be deposited by the Insurance Company, within 30 days in the court. In case, the Insurance Company fails to deposit this compensation with proportionate interest, in that event, in the light of the judgment of the Hon'ble High Court of Delhi in the case of New India Assurance Company Limited Vs. Kashmiri Lal, 2007 ACJ 688, this compensation shall be recovered by attaching the bank account of the Insurance Company with a cost of Rs.10,000/.
List for reporting compliance on 18.05.2015.
(MS. RAVINDER BEDI) P.O.MACT (EAST)/KKD./DELHI/08.04.2015 MAC No.264/08 Rakesh Passi & Ors. Vs. Hawa Singh & Ors. Page : 19/17