Delhi District Court
) Whether vs Pushpa Rana Wherein In The Hon'Ble High ... on 31 August, 2015
IN THE COURT OF MS. KIRAN BANSAL
P.O. MOTOR ACCIDENT CLAIMS TRIBUNAL:
NORTH-EAST DISTRICT : KKD COURTS : DELHI
DAR No. 219/09
Unique Case Identification No:- 02402C0392432009
1. Smt. Raj Rani Devi
W/o Late Ram Niwas Gupta (aged 57 years)
2. Chanchal Rani
D/o Late Ram Niwas Gupta (aged 39 years)
3. Smt. Poonam Gupta
D/o Late Ram Niwas Gupta (aged 38 years)
4. Neelam Vashnoy
D/o Late Ram Niwas Gupta (aged 37 years)
5. Tulsi Vashney
D/o Late Ram Niwas Gupta (aged 31 years)
6. Aadesh Kumar Gupta
S/o Late Ram Niwas Gupta (aged 28 years)
7. Sudesh Kumar Gupta
S/o Late Ram Niwas Gupta (aged 23 years)
R/o 504, Shakti Nagar, Gular Road,
Aligarh, U.P.
Versus
1. Arun Saxena
S/o Sh. Panna Lal
R/o A-191, Indira Puri,
Loni, Ghaziabad, U.P. ......... Respondents
i) Date of Institution of DAR : 16/09/2009
ii) Date when fixed for Orders : 24/07/2015
iii) Date of Decision : 31/08/2015 APPLICATION U/S 166 & 140 M.V. ACT 1988 FOR GRANT OF COMPENSATION Kiran Bansal P.OMACT (NorthEast) DAR No.219/09 Page 1/9 AWARD
1. Detailed Accidental Report (DAR) has been filed by IO stating that deceased Ram Niwas Gupta met with an accident on 12/08/2009 and expired on 18/08/2009 and FIR bearing no. 178/09 was registered at PS Welcome, in this respect. In DAR it is reported that offending vehicle bearing no. HR 29B 7600 was being driven by driver Sh. Arun Sexana.
2. Notice of the DAR was issued to driver cum owner.
3. Reply filed on behalf of driver cum owner stating that he was not at fault and the accident occurred due to mistake of deceased himself.
4. On the basis of the pleadings of the parties, following issues are framed vide order dated 11/07/2013.
1) Whether petitioner sustained injuries in motor accident caused by rash and negligent driving of vehicle no. HR 29B 7600 respondent no. 1 on 12/08/2009 at about 8:15 PM at 100 foot road near TVS Showroom Babarpur, Delhi within the jurisdiction of PS Welcome? OPP
2) Whether petitioner is entitled to compensation, If so to what amount and from whom?
3) Relief However, as the issues were not correctly framed vide order dated 25/08/2015 issue no. 1 was reframed as under:-
Whether deceased Ram Niwas Gupta expired on account of injuries sustained in accident taking place on 12/08/2009 at about 8:15 PM at 100 foota road near TVS Showroom Babarpur, Delhi within the jurisdiction of PS Welcome due to rash and negligent driving of vehicle bearing no. HR Kiran Bansal P.OMACT (NorthEast) DAR No.219/09 Page 2/9 29B 7600 by respondent no. 1 ?OPP
5. I have heard the counsels for the petitioner and gone through the entire evidence on record carefully. My issue wise findings are as below :
6. ISSUE NO. 1Whether deceased Ram Niwas Gupta expired on account of injuries sustained in accident taking place on 12/08/2009 at about 8:15 PM at 100 foota road near TVS Showroom Babarpur, Delhi within the jurisdiction of PS Welcome due to rash and negligent driving of vehicle bearing no. HR 29B 7600 by respondent no. 1 ?OPP Petitioner no. 6 younger son of deceased has examined himself as PW1. Petitioner has examined Sh. Inder Pal Sharma as PW2 who is an eye witness and he deposed about the facts of the case. Nothing has come forward in his testimony to disbelieve the version of PW2. DAR is exhibited as Ex. PW1/9. Driver cum owner i.e respondent no. 1 has not stepped into the witness to state that he was not at fault or that accident did not occur with his vehicle. No evidence on the aspect was led on behalf of respondent.
In the present case DAR was also filed by the IO. In this detailed accident report, copy of FIR, Postmortem report and site plan have been filed.
To determine the negligence, I am being guided by 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 held that in case the petitioner files the certified copy of the criminal record Kiran Bansal P.OMACT (NorthEast) DAR No.219/09 Page 3/9 or 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 or in addition the recovery memo and the mechanical inspection report of the offending vehicle, these documents are sufficient proof to reach to the conclusion that the driver was negligent. It was further held that the proceedings under the Motor 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, the issue of wrongful act or omission on the part of driver of the motor vehicle involved in the accident has been left to a secondary importance and it was held that, mere use or involvement of motor vehicle in causing bodily injuries or death to a human being or damage to property would made the petition maintainable under section 166 and 140 of the Act.
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.
Further the Hon'ble High of Delhi in MAC App. No.200/2012 in case titled as United India Insurance Co. Ltd. Vd. Smt. Rinki @ Rinku & Ors decided on 23/07/2012 by Hon'ble Mr. Justice G. P. Mittal, held as under:
"The Claims Tribunal was conscious of the fact that negligence is a sine qua non to a Petition under Section Kiran Bansal P.OMACT (NorthEast) DAR No.219/09 Page 4/9 166 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."
Therefore, from the statement of PW2 Sh. Inder Pal Sharma and in view of the DAR, it is proved that the deceased Ram Niwas Gupta sustained fatal injuries in the accident which occurred on 12/08/2009 due to rash and negligent driving of offending vehicle bearing no. HR 29B 7600 driven by its driver i.e Respondent no. 1. The issue is decided accordingly.
7. ISSUE NO. 2Whether petitioners are entitled to compensation, If so, to what amount and from whom?
PW1 son of deceased has been examined as PW1. Her affidavit is Ex. PW1/A in which she has stated that deceased was doing private consultancy of accounts works with different organization and was earning Rs. 10,000/- per month from his job. He was also getting a pension of Rs. 7873/- PM.
Kiran Bansal P.OMACT (NorthEast) DAR No.219/09 Page 5/9 However, no documentary proof regarding income or educational qualification of the deceased has been placed on record. Therefore, income of the deceased is assessed as per the minimum wages of a unskilled on the date of accident i.e 3953/- per day.
PW1 has stated in his affidavit that deceased was 61 years old. As per Postmortem report, the age of deceased was 60 years old therefore, the age of the deceased is taken to be around 61 years.
It is stated in the affidavit of PW1 that the deceased has left behind LRs i.e petitioner no. 1 to 7. Petitioner no. 1 is the widow of deceased. Petitioner no. 2 to 5 are married daughters and petitioner no. 6 & 7 are sons of deceased.
Therefore, deceased had only one dependent. Hon'ble High Court of Delhi in the case of Kamlesh Mittal & Ors. Vs. Oriental Insurance Co. Ltd. & Ors. in MAC. APP.283/2010 decided on 03.09.2014, held that:-
"14. Hence, the Supreme Court has laid down a standard formula / guideline to ensure consistency in the Awards of various tribunals. However, a perusal of the guidelines laid down shows that a situation like this has not been dealt with namely, where the deceased is married and has children who are all settled and the widow is the only person who could be considered as dependent. I may, however, note that the Supreme Court noted that in case of a bachelor where deduction of 50% was stated, the Court noted that this was because it was assumed that a bachelor would tend to spend more on himself. Further there is a possibility of his getting married in a short time in which event the contribution to the parents / siblings Kiran Bansal P.OMACT (NorthEast) DAR No.219/09 Page 6/9 was likely to be cut drastically.
15. In my opinion, in a situation like the present one, the situation of the deceased cannot be treated at par with a bachelor. There is merit in the said submission of learned counsel for the appellant that a man of 54 years of age who is professionally well qualified with two settled children and a wife would not be spending 50% of his wages for personal living expenses. He would be inclined to accumulate wealth for his old age days and also for the benefit of his wife and children. One cannot also ignore that being a father of a married daughter and a son, who is likely to get married he would have spent on the marriage of the son, on his grand children after they were born. These are expenses which a man who has grown to that age and who is well settled would normally be incurring. These expenses cannot be ignored. Keeping in view these facts and circumstances in my opinion, the appropriate deduction to be made from the income of the deceased in the facts and circumstances of this case was 1/3rd and not 50% as done by the tribunal. Hence, 1/3rd is only to be deducted from personal expenses."
Similarly, in Smt. Shakuntala Vs. Naresh Kumar in MAC. APP. 288/2011 decided on 16.05.2011 by Hon'ble High Court of Delhi it is held that:
"6. I am inclined to agree with the aforesaid contention of Mr. Mannie for the reasons that though the deceased left behind his widow and two unmarried daughters who were wholly dependent upon him, the deceased also left behind him two married daughters and a son, who though may not have been dependent on him stricto senso, nevertheless formed part of his family. The married daughters of the deceased have been awarded only a sum of Rs. 10,000/- each while the son Kiran Bansal P.OMACT (NorthEast) DAR No.219/09 Page 7/9 of the deceased has been awarded Rs. 15,000/- only by the Claims Tribunal.
7. It is well known that in Indian Society married daughters are also the beneficiaries of various gifts and cash amounts from the father from time to time. The appellant No. 4, who was the son of the deceased, was also unmarried and in due course of time the father would have expended some amount of money on his marriage and would have supported him in times of need. Accordingly, in my view, the deduction of one- fourth of the income of the deceased ought to have been made by the Claims Tribunal while calculating the loss of dependency of the appellants." In view of the above case law, deceased herein would also have spent on giving gifts to his married daughters and sons and grand children.
Therefore, the total loss of dependency/estate would be calculated as follows :
Rs. 3953/- X 12 X 7 (Multiplier) = Rs. 3,32,052/- Rs. 3,32,052/- - Rs. 1,10,684/- ( 1/3rd personal expenses) = Rs. 2,21,368/-
Besides this, petitioners are also entitled for compensation under the following heads:-
Loss of Consortium Rs. 100,000/-
Love and affection Rs. 100,000/-
Funeral expenses Rs. 25,000/-
Loss of Estate Rs. 10,000/-
Total Rs.2,35,000/-
Kiran Bansal
P.OMACT (NorthEast)
DAR No.219/09 Page 8/9
Thus, the total compensation would amount to Rs. 4,56,368/-
8. Liability The vehicle was not insured on the date of accident. Respondent no.1 is the driver cum owner of the offending vehicle therefore, respondent no. 1 is liable to pay the compensation.
9. Relief Award is passed directing Respondent no. 1 i.e driver cum owner to pay to the claimant/petitioners a sum of Rs. 4,56,368/- by way of depositing cross cheque in favour of petitioners in the proportion of 40:10:10:10:10:10:10 along with interest @ 9% per annum from the date of filing of the DAR (i.e. 16/09/2009) till the date of service of notice of deposit of award amount in UCO Bank KKD Courts, Delhi-32, in the name of petitioner. If award is not complied within 30 days, respondent no.1 shall pay penal interest @ 12% p.a. for the default period.
Put up for compliance on 01/10/2015.
Attested copies of the award be furnished to the concerned parties from court for compliance. File be consigned to record room.
Pronounced in Open Court on (KIRAN BANSAL)
31/08/2015 P.O. MACT(North-East)
KKD Delhi
Kiran Bansal
P.OMACT (NorthEast)
DAR No.219/09 Page 9/9