Delhi District Court
Presiding Officer: Motor Accident ... vs Jai Prakash Son Of Tara Chand (Driver) on 22 November, 2012
IN THE COURT OF MS. NIRJA BHATIA :
PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS TRIBUNAL :
SOUTH-EAST DISTRICT : SAKET COURTS : NEW DELHI
Suit No.186/2010/2008
Unique Case ID No.02403C0961822008
Fatal Case
1 Smt.Neena Anand Wife of late Shri Chaman Lal Anand,
2 Gaurav Anand Son of late Shri Chaman Lal Anand,
3 Himanshu Daugther of late Shri Chaman Lal Anand,
4 Saurabh Son of late Shri Chaman Lal Anand,
All residents of :
i) Village, PO and Tehsil Gajansoo,
Nai Basti, Jammu & Kashmir.
ii) Care of Ajay Abrol,
F-137, Sector-4, Pushp Vihar, New Delhi-110017.
......Petitioners
Versus
1 Jai Prakash Son of Tara Chand (driver)
R/o 58-B, Sidharth Enclave, Uttam Nagar, New Delhi.
2 General Manager, I.P.Depot, (owner)
Delhi Transport Corporation, Ring Road, ITO, New Delhi.
3 United India Insurance Company Ltd.,
i) RO-1, 8th Floor, Kanchanjunga Building, Connaught Place,
New Delhi.
ii) DO-XI, E-85, Himalaya House, K.G.Marg, New Delhi.
.....Respondents
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Suit No.186/2010/2008 (Neena Anand etc. Vs. Jai Prakash etc.) Page 1 of 14
Date of institution : 10.12.2008
Date of reserving the judgment : 22.11.2012
Date of pronouncement : 22.11.2012
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AWARD
This judgment/award shall decide the question of awarding the compensation filed by way of present petition under Section 166 read with Section 140 of MV Act, 1988 as amended up to date (hereinafter referred as Act), arising out of a fatal case.
2 The brief facts necessary for decision are that deceased Chaman Lal Anand met with road traffic accident on 27.9.2008 at about 5.50 PM when he was crossing the BRT Corridor from Pushp Vihar towards Madan Gir, he was hit by a speeding DTC bus, plying on route No.544, bearing registration No.DL 1P B-2760 which was coming from the side of Pushpa Bhawan and going towards Khanpur. It is claimed that the offending bus was being driven rashly, negligently and at violent speed, resulting in hitting the deceased consequent to which he fell on the road and suffered grievous head injuries. He died resultantly. It is stated by the petitioners that the deceased was having an income of approx.Rs.45,000/- per month as he was having cultivable land, besides, was also having one flour mill and a tractor. It is stated that he was providing reasonable comfort to the family and was the sole source of survival and maintenance to the family members including the widow and the three children. It is claimed that consequent to his death, the family has faced hardships since he was the sole bread winner. It is averred that in the circumstances above, the family has prayed for compensation for an amount of Rs.30,45,000/-.
Suit No.186/2010/2008 (Neena Anand etc. Vs. Jai Prakash etc.) Page 2 of 143 Consequent to the petition being received, the summons were issued to the respondents. All the respondents filed their replies, however, the liability was denied and disputed.
4 Consequently, the issues were framed by my learned Predecessor vide order dated 3.12.2009 to the following extent :
1 Whether the deceased suffered fatal injuries in the accident that took place on 27.9.2008 at about
5.50 PM involving vehicle bearing No.DL 1P B-2760 driven by respondent No.1, owned by respondent No.2 and insured with respondent No.3? OPP 2 Whether the petitioners is entitled for compensation? If so, to what amount and against which of the respondents?
3 Relief.
5 My learned Predecessor also made award of interim nature and the petitioners were provided the interim benefit amounting to Rs.50,000/-. Consequently, the petitioner, Ms.Neena Anand, widow of deceased, tendered her examination affidavit and was subjected to cross-examination. PW2 Dharamveer Singh, eye-witness, Guard at BRT Corridor, also made his statement. The petitioners in order to prove the factum of income of deceased, brought Shri Shabir Hussain Shah, Reader to Tehsildar Settlement, who appeared as PW3 whereafter PE was closed. Shri B.K.Sharma, counsel for the insurance company also closed the evidence without leading any evidence as he had no statutory defence. The driver/owner also led no evidence and same was closed. Arguments have been addressed by the learned counsels for the parties. I have heard the Suit No.186/2010/2008 (Neena Anand etc. Vs. Jai Prakash etc.) Page 3 of 14 same and have carefully perused the record. I now proceed to record my findings on the issues, as below :
ISSUE NO.1 : NEGLIGENCE
6 Since, the present petition is instituted under Section 166 MV Act, it was incumbent upon the petitioners to establish the factum of negligence attributable to the erring driver, Jai Prakash, in plying the offending DTC bus, bearing registration No.DL 1P B-2760, rashly and negligently. The FIR in this case is registered on the basis of statement made by one security guard, Mahinder Singh. This witness has also deposed before the court. It is stated by him that he was present at the spot while being on duty at BRT and at about 5.50 PM he saw one DTC bus, plying on route No.544, coming from the side of Pushpa Bhavan at a fast speed and hitting one pedestrian who was crossing the road for going towards the DDA flats of Madan Gir, resulting in the pedestrian sustaining the injuries. Some body informed the police whereafter the victim was removed to the hospital by the PCR van. After causing the accident, the erring driver stopped the bus. 7 The facts leading to the accident have again been stated by the widow of the deceased while tendering her examination affidavit before the court, who though is not an eye-witness, has relied upon the charge-sheet, filed by the IO as well as the investigation carried out by him. 8 The cause of death of the deceased is established through the post-mortem report which reflects his death due to shock and haemorrhage as a result of injury to head and left lung due to blunt force impact and the injuries were found to be ante mortem in nature, possible in road traffic accident. Further, the IO during the course of investigation, prepared the site plan and seized the DTC bus involved in the accident and got conducted its Suit No.186/2010/2008 (Neena Anand etc. Vs. Jai Prakash etc.) Page 4 of 14 mechanical inspection, inditing its involvement in causing the accident whereafter the documents pertaining to the offending vehicle and the DL of the erring driver were seized.
9 The driver/owner though have filed reply denying the allegations made against the erring driver stating that he was falsely involved in the present case in connivance of the petitioners with the police, it be observed that despite opportunities being granted to him, the erring driver has not led any evidence in support of his defence. Moreover, he has not reported the matter for his false implication before the higher police officials or before any court of law, though the remedy was very much available to him. Not even a single question is put to the petitioner or to the eye-witness Dharamvir Singh, denying his rashness in plying the bus and causing the accident against the deceased. Though, the widow of deceased was cross-examined, but the questions relating to only the quantum of compensation were put to her. It be observed that eye-witness was given the only suggestion that he was not present at the spot which suggestion was categorically denied by the witness. Hence, nothing adverse came out to dis-credit the statements of the witnesses on the version given by them regarding the manner of driving the offending vehicle.
10 The IO being a public and a neutral person, conducted the investigation fairly and thus, his investigation is to be believed. Accordingly, I am of the view that sufficient material is placed on record to indite towards the rashness and negligence of the erring driver, Jai Prakash, in plying the offending bus and in causing the accident against the deceased. 11 Even otherwise, it is pertinent to observe that the degree of proof required for proving the negligence on the part of the driver in the Suit No.186/2010/2008 (Neena Anand etc. Vs. Jai Prakash etc.) Page 5 of 14 present proceedings, is not as vigorous as is required in proving the guilt of the accused in criminal trial. The intent of the present legislation is benevolent and the entire purpose of the legislation is likely to be defeated if in each case the petitioner is asked to prove beyond reasonable doubt the involvement and negligence on the part of the driver. In reaching to the above opinion, I am guided by the judgment of Kaushnuma Begum and others Versus New India Assurance Limited, 2001 ACJ 421 SC as well as the case reported as National Insurance Company Limited Versus Pushpa Rana, 2009 ACJ 289, wherein it is held that mere involvement of a vehicle is sufficient to establish and hold the claim petition to be maintainable. It is held that even the certified copy of charge-sheet may not be asked for if the petitioner is able to satisfy on record the involvement of the offending vehicle through the copy of FIR and the mechanical inspection report. The issue hence, is decided in favour of the petitioner and against the respondents. ISSUE NO.2 : COMPENSATION :
LOSS OF DEPENDENCY
12 It has been stated by Smt.Neena Anand in her examination affidavit that her deceased husband was having monthly income of about Rs. 45,000/- from the agricultural land. It has been claimed that he owned about 120 canals of agricultural land. It is averred that the deceased also owned one tractor and a flour mill. There were about 15 labourers working under him at that time. In pursuance of the above, she filed one certificate issued by the office of Tehsildar. PW3 Shri Shabir Hussain Shah, Reader to Tehsildar, Settlement was called as witness by the petitioners. He tendered the photocopy of income certificate, Ex.PW3/A, issued by the Office of Tehsildar, the true translated copy of which had been exhibited as Ex.PW3/B, as the Suit No.186/2010/2008 (Neena Anand etc. Vs. Jai Prakash etc.) Page 6 of 14 original is tendered in Urdu. However, it be observed that this witness could merely prove the execution of certificate as the contents of the same could not be duly established. In the cross-examination, he admitted that no document in pursuance of issuance of the income certificate was received. There had been no material available to show that the tractor was being used for any commercial purpose and/or for agricultural purpose and/or any income was generated therefrom. There has been no material received from the office of Tehsildar that the chakki was being plied by the deceased and/or was handed over to any employee and/or there was any income therefrom. There is no document registered etc. to show the sale of Kasht, to conclude earning of Rs.30,000/-, as assessed by the Tehsildar. There was no material to reflect even that the deceased was an income tax payee. In the circumstances above, as the record does not reflect any basis or justification for issuance of the certificate and there had been no regular record brought to show the preceding enquiry based on the sale record of Kasht. Hence, at the maximum, what is to be treated to have been proved, is the factum of possession of land and it is being used for cultivation. The fact that the corpus, i.e., the land, the tractor as well as the flour mill are still available with the family members, no loss against the income therefrom is to be presumed. At the maximum, the family has lost the acumen, skill, capability of the deceased to saw and to reap the land for farming for commercial use. The family of the deceased, the petitioners herein, made no efforts even to prove that loss. There was no bank account, running account or other form of account maintained in kachha form, even has been brought to show the regular sale of Kasht and/or reveal that the deceased was having extraordinary skill to reap better fruits from the land in his possession. In the Suit No.186/2010/2008 (Neena Anand etc. Vs. Jai Prakash etc.) Page 7 of 14 circumstances above, I am constrained to assess his income on the basis of Minimum Wages Act, treating him to be a skilled worker, @ Rs.4,107/- per month.
13 In view of the judgment of Hon'ble Supreme Court in case titled, Santosh Devi Versus National Insurance Company Ltd. and others in Civil Appeal No.3723 of 2012 passed on 23.4.2012, inflation @ 30% are also awarded to the petitioners as it is apparent from the statement of the witness that they were providing periodic increase in the salary of the deceased with the increase in the rate of inflation. The relevant portion of the judgment reads as under :
"In our view, it will be naive to say that the wages or total emoluments/income of a person who is self- employed or who is employed on a fixed salary without provision for annual increment etc., would remain the same throughout his life. The rise in the cost of living affects everyone across the board. It does not make any distinction between rich and poor. As a matter of fact, the effect of rise in prices which directly impacts the cost of living is minimal on the rich and maximum on those who are self-employed or who get fixed income/emoluments. They are the worst affected people. Therefore, they put extra efforts to generate additional income necessary for sustaining their families."
It has also been observed by the Hon'ble Supreme Court that :
"Although, the wages/income of those employed in unorganized sectors has not registered a corresponding increase and has not kept pace with the increase in the salaries of the Government employees and those employed in private sectors but it cannot be denied that there has been incremental enhancement in the income of those who are self-employed and even those engaged on Suit No.186/2010/2008 (Neena Anand etc. Vs. Jai Prakash etc.) Page 8 of 14 daily basis, monthly basis or even seasonal basis. We can take judicial notice of the fact that with a view to meet the challenges posed by high cost of living, the persons falling in the latter category periodically increase the cost of their labour .............. it would be reasonable to say that a person who is self-employed or is engaged on fixed wages will also get 30 percent increase in his total income over a period of time and if he/she becomes victim of accident then the same formula deserves to be applied for calculating the amount of compensation."
Being guided by the judgment above, amount of 30% is added in the income of the deceased and is calculated as under :
4,107 X 30% = 1,232.10 4,107 + 1,232.10 = 5,339.10 rounded off to Rs.5,339/-
Deductions It be observed that at the time of his demise, the deceased was survived by his widow, two sons besides one daughter. Accordingly, in view of the judgment passed in case tilted, Sarla Verma Versus DTC, passed on 15.4.2009 in SLP No.3483/2008 deductions on account of personal expenses @ 1/3rd is to be calculated from the dependency. To get the actual dependency of the LRs of the deceased, the following formula is adopted :
5,339 divided by 3 = 1,779.67 5,339 - 1,779.67 = 3,559.33 rounded off to Rs.3,559/-
For calculating the yearly dependency of the LRs of the deceased, the amount is to be multiplied with 12 and therefore, the yearly dependency comes to Rs.3,559 X 12 = Rs.42,708/-.Suit No.186/2010/2008 (Neena Anand etc. Vs. Jai Prakash etc.) Page 9 of 14
Thus, the actual yearly dependency of the petitioners is assessed as Rs.42,708/- which the deceased would have contributed to the family, had he remained alive.
Multiplier The deceased Chaman Lal as per the identity card Ex.PW1/B1 as well as the inquest papers, is shown to have been aged about 56 years of age at the time of his death due to the accident on 27.9.2008. Therefore, in view of the law laid down in Sarla Verma Versus DTC, (supra), the multiplier of '9' for the persons falling in the age group of '56-60' is taken to assess the loss of dependency of the deceased. Hence, total loss of dependency of the LRs of the deceased is assessed as 42,708 X 9 = 3,84,372/- The award on account of dependency for the above amount is passed. FUNERAL EXPENSES
14 The petitioners on record, have not filed any document on account of expenses of funeral of deceased, Chaman Lal Anand. However, it is presumed that an amount of Rs.10,000/- at least may have been spent on the last rites of the deceased. The amount of Rs.10,000/- is hence, awarded on account of funeral expenses.
LOVE & AFFECTION 15 The deceased left behind him his two sons and one daughter. In view of the judgment of Sarla Verms Versus DTC (supra), award for an amount of Rs.10,000/- in favour of the above petitioners is passed towards love and affection.
LOSS OF CONSORTIUM 16 In the present case, the petitioner Smt.Neena Anand has suffered loss of life of her husband as well as loss of enjoyment of her life on Suit No.186/2010/2008 (Neena Anand etc. Vs. Jai Prakash etc.) Page 10 of 14 account of being deprived of the company of her husband and enjoyment of matrimonial bliss. She may not be able to live a normal life after having lost her life partner. I hereby award an amount of Rs.10,000/- in favour of the petitioner on account of Loss of Consortium.
LOSS OF ESTATE 17 In view of the circumstances detailed above, the petitioners are also entitled for loss of estate in respect of death of Chaman Lal Anand. Accordingly, an amount of Rs.10,000/- is passed in favour of the petitioners towards loss of estate.
The total compensation is assessed as under :-
Loss of Dependency Rs.3,84,372/-
Funeral Expenses Rs. 10 ,000/-
Love & Affection Rs. 10,000/-
Loss of Consortium Rs. 10,000/-
Loss of Estate Rs. 10,000/-
Total Rs.4,24,372/-
Less Interim Award Rs. 50,000/-
Balance Payable Sum Rs.3,74,372/-
Hence, the petitioners are awarded a total amount of Rs. 3,74,372/-.
RELIEF 18 I hereby award an amount of Rs.3,74,372/- as compensation with interest @ 9% per annum, from the date of filing the present petition, i.e., 10.12.2008 till the date of realisation of the amount, in favour of the petitioners and against the respondents.
19 The driver, R-1 is the principal tort feasor whereas R-2 and R-3 being the owner and the insurance company, are the joint tort feasors, and are jointly and vicariously liable for the acts of the driver, R-1.
Suit No.186/2010/2008 (Neena Anand etc. Vs. Jai Prakash etc.) Page 11 of 1420 In view of the above discussion, the insurance company is directed to discharge the liability of the award amount within a period of 30 days from today along with interest @ 9% per annum, failing which interest @ 12% per annum shall be charged for the period of delay. 21 In the judgment of Union of India and others Versus Nansari and others, MACA 682/2005, decided on 13.1.2010, which has been affirmed by the Hon'ble Supreme Court in order dated 17.12.2009 in SLP (Civil) No.11801-11804/2005, the Hon'ble High Court have given directions for the protection of the award amount. In view of the aforesaid judgment, it is directed that out of the above awarded amount of Rs.3,74,372/- (Rupees three lac seventy four thousand three hundred and seventy two only), an amount of Rs.74,372/- (Rupees seventy four thousand three hundred and seventy two only) be released immediately on its realisation in favour of widow of deceased, Smt.Neena Anand, being petitioner No.1. 22 It is also directed that out of the remaining amount of Rs. 3,00,000/- (Rupees three lac only), amounts of Rs.50,000/- each (Rupees fifty thousand only), total amounting to Rs.1,00,000/- (Rupees one lac only) be imparted in favour of sons of the deceased, namely, Gaurav Anand and Saurabh, being petitioner Nos.2 and 4, which amount be released to them. 23 It is also directed that out of the remaining amount of Rs. 2,00,000/- (Rupees two lac only), amount of Rs.1,00,000/- (Rupees one lac only) be imparted in favour of daughter the deceased, namely, Himanshu, being petitioner No.3, which amount be kept in State Bank of India by way of FDR and be released to her at the time of her marriage.
24 The remaining amount of Rs.1,00,000/- (Rupees one lac only), awarded in favour of petitioner No.1, Smt.Neena Anand, be kept in the State Suit No.186/2010/2008 (Neena Anand etc. Vs. Jai Prakash etc.) Page 12 of 14 Bank of India Branch by way of FDR for a period of two years in her account. The petitioners may approach Shri H.S.Rawat, Nodal Officer (Mobile No. 09717044322), for opening of the accounts after receiving the copy of the award, whereafter the amount of the petitioner No.1, Smt.Neena Anand, shall be released to her as under :
25 50% of the FDR amount be released to her on the expiry of first year, along with proportionate interest.
26 The remaining amount of 50% of the FDR amount be released to the petitioner on the expiry of second year, along with proportionate interest. The original FDRs be kept with the bank which shall issue a photo identity cards to the petitioners to ascertain their identity. The copy of the award shall be given to the parties.
27 It is directed that the FDRs so deposited with the bank, be renewed automatically and the interest thereupon shall be paid monthly, which shall be credited automatically in the savings account of the petitioners. The original FDRs be detained by the bank in safe custody. However, the original passbooks shall be issued and given to the petitioners along with the photocopy of the FDRs. The bank is directed to hand over the original FDRs on afflux of time and shall issue the photo identity cards to the petitioners to facilitate the withdrawal after due verification. It is further directed that no cheque books shall be issued to the petitioner without the permission of this court.
28 It is also directed that the insurance company shall make an endorsement of the title of the case, suit number, name of the parties and other relevant details while depositing the cheque in the bank. The compliance be made by all concerned.
Suit No.186/2010/2008 (Neena Anand etc. Vs. Jai Prakash etc.) Page 13 of 1429 Copy of the order shall be kept for receiving the compliance. File be consigned to the record room after completion of necessary formalities.
Announced in open Court ( NIRJA BHATIA )
Dated : 22.11.2012 PO : MACT-02, (SE)
Saket Courts, New Delhi
Suit No.186/2010/2008 (Neena Anand etc. Vs. Jai Prakash etc.) Page 14 of 14