Delhi District Court
Jagdish S/O Sh. Shyam Singh vs Nand Kishore S/O Sh. Bhoop Singh on 30 November, 2013
1
IN THE COURT OF MS. REKHA RANI : JUDGE : MACT : DELHI
MACT No. : 102/13
UNIQUE ID No.: 02404C0049062013
1. Jagdish S/o Sh. Shyam Singh
(Husband of deceased)
2. Neha @ Arti D/o Sh. Jagdish
(Daughter of deceased)
3. Jyoti D/o Jagdish
(Daughter of deceased)
4. Preeti D/o Jagdish
(Daughter of deceased)
5. Vikash S/o Jagdish
(Son of deceased)
6. Pooja D/o Jagdish
(Daughter of deceased)
7. Akash S/o Jagdish
(Son of deceased) ......Petitioners
All R/o A75, Karan Vihar, Sukar Bazar Road,
A man Vihar, Delhi.
Versus
1. Nand Kishore S/o Sh. Bhoop Singh,
R/o H.No. 105, Nilothi, Nangloi,
Delhi. .......(DrivercumOwner)
2. National Insurance Company Limited,
Div. No. 10, Flat No. 101106,
N1, BMC House, Connaught Place,
MACT No. 102/13 LRs of Laxmi v Nand Kishore 1 of 21
2
New Delhi110001. .....(Insurance)
........ Respondents
DATE OF INSTITUTION : 19.02.2013 DATE OF RESERVING ORDER : 26.11.2013 DATE OF PRONOUNCEMENT : 30.11.2013 AWARD:
1. Laxmi (in short deceased) died in a motor vehicle accident on 16.12.2012 at 2:30 p.m near Haiderpur Jal Board Office bus stand in front of Varun Niketan Gate, Outer Ring Road, Pitampura, Delhi. After completion of the investigation FIR bearing No.362/12 for offences punishable under section 279/304A IPC was registered at PS Maurya Enclave and ASI Kamal Singh filed Detailed Accident Report against Nand Kishore (in short R1) drivercumowner of the offending vehicle and National Insurance Company Limited (in short R2) insurer of the offending vehicle.
2. R1 filed reply. He stated that he has been falsely implicated in the case as no accident took place involving his vehicle. It is stated that on the date, time and place in question when he was driving the offending vehicle the deceased alongwith her MACT No. 102/13 LRs of Laxmi v Nand Kishore 2 of 21 3 daughter came running carelessly on a busy road and all of a sudden they were hit by some other vehicle. R1 was forcibly stopped by the public under the confusion that accident was caused by the vehicle of R1 whereas the vehicle which actually caused the accident had fled away from the site of accident. It is further submitted that R1 was driving the alleged offending vehicle at normal speed and he immediately stopped the vehicle on seeing the accident. It is further stated that investigating officer was misled by the eye witness who alleged that accident was caused by rash and negligent driving of the offending vehicle by R1.
3. R2 also filed reply and offered an amount of Rs. 11,82,248/ as compensation to the LR's of deceased which was not acceptable to them and as such in view of judgment in Bajaj Allianz General Insurance Co. Ltd. Appellant v. St. Reshnu Nisha & Ors. Respondents MAC APP. 503/2012 dated 17.12.12 of Hon'ble Delhi High Court to the effect "Once the legal offer given by the Appellant Insurance Company was rejected the Claims Tribunal was under
MACT No. 102/13 LRs of Laxmi v Nand Kishore 3 of 21 4 obligation to decide the issue of negligence as well as the quantum of compensation" following issues were framed.
i) Whether on 16.12.12 at about 2:30 p.m in front of Varun Niketan Gate, Outer Ring Road, Pitampura, Delhi Ecco Maruti bearing registration No. DL3CBS5595 which was being driven rashly and negligently by Nand Kishore hit Laxmi Devi and caused her death?
ii) Whether petitioners are entitled to compensation, if so, to what amount and from whom?
iii) Relief.
4. Jagdish husband of deceased was examined as PW1 and Preeti daughter of deceased, who was present with her at the time of accident was examined as PW2.
5. I have heard counsel for petitioners and counsel for R3 and have also gone through the record.
Issue No.1 Qua Negligence
6. Preeti daughter of deceased was examined as PW2. She deposed that on 16.12.2012 she alongwith her mother were going towards Varun Niketan, Pitampura, Delhi, when they MACT No. 102/13 LRs of Laxmi v Nand Kishore 4 of 21 5 alighted from the Van in front of Varun Niketan and were in the process of crossing the road suddenly a white colour Maruti Ecco, bearing registration No. DL3CBS5595 (in short the offending vehicle) came from the side of bypass and hit her as well as her mother. Both fell down on the road and got injured. It is further deposed that R1 tried to flee from the site of accident but he was caught by the public gathered there and thereafter he was handed over to the police by the public. It is further deposed that she (PW2) was discharged on the same day from the hospital whereas her mother expired after three days of admission in the hospital. The witness was crossexamined by R1. It was suggested to her that accident took place due to her own negligence as after crossing the road half way they were trying to go back. The witness denied it and asserted that the accident took place due to negligent driving of the offending vehicle by R1.
7. The witness was not confronted with the defence taken by R1 in his written statement which was to the effect that accident was caused by some other MACT No. 102/13 LRs of Laxmi v Nand Kishore 5 of 21 6 vehicle and that R1 was driving the offending vehicle parallel to that vehicle at normal speed and was forcibly stopped by the public in confusion. R1 himself did not step into the witness box to prove the manner in which as per his defence accident took place.
8. R1 was charge sheeted for having caused the said accident. He did not explain why he was so prosecuted.
9. It has to be borne in mind that Motor Vehicles Act does not stipulate holding a trial for petition preferred under section 166 of the Act. Under Section 168 of the Act, a Claims Tribunal holds an inquiry to determine compensation which must appear to it to be just. Strict rules of evidence are not applicable in an inquiry conducted by the Claims Tribunal. In State of Mysore Vs. S.S. Makapur, 1993 (2) SCR 943. Hon'ble Apex Court held " that tribunal exercising quasijudicial functions are not courts and that therefore they are not bound to follow the procedure prescribed for trial of actions in courts nor are they bound by strict rules of evidence. They can unlike courts, obtain all information for the points under the enquiry from all sources and through all channels, without being MACT No. 102/13 LRs of Laxmi v Nand Kishore 6 of 21 7 fettered by rules and procedure, which govern proceedings in court. The only obligation which the law casts on them is that they should not act on any information which they may receive unless they put it to the party against whom it is to be used and give him a fair opportunity to explain it. What is a fair opportunity depend on the facts and circumstances of each case but where such an opportunity has been given, the proceedings are not open to attack on the ground that the enquiry was not conducted in accordance with the procedure followed in courts"
10. In Bimla Devi and ors. Vs. Himachal Road Transport Corporation and Ors (2009) 13 SC 530, Supreme Court held that " 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 an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. 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."
MACT No. 102/13 LRs of Laxmi v Nand Kishore 7 of 21 8
11. In National Insurance Company Pvt. Ltd. Vs. Smt. Pushpa Rana & Ors., 2008 II AD (DELHI) 269. Hon'ble Delhi High Court observed that "The last contention of the appellant insurance company is that the respondents claimants should have proved negligence on the part of the driver and in this regard the counsel has placed reliance on the judgment of the Hon'ble Supreme Court in Oriental Insurance Co. Ltd. V. Meena Variyal. On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced (1) certified copy of the criminal record of criminal case in FIR No. 955/2001, pertaining to involvement of the offending vehicle, (ii) criminal record showing completion of investigation of police and issue of charge sheet under Section 279/304A, IPC against the driver, (iii) certified copy of FIR, 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 MACT No. 102/13 LRs of Laxmi v Nand Kishore 8 of 21 9 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."
12. In N.K. V. Brothers (P) Ltd Vs M. Karumal Ammal, AIR 1980 SC 1354 Supreme Court has reminded the Claim Tribunals stating as follows:
" Road accidents are one of the top killers in our country, specially, when truck and bus driver operate nocturnally. This proverbial recklessness often persuades the courts, as has been observed by us earlier in other cases, to draw an initial presumption in several cases bases on the doctrine of res ipsa loquitar. Accidents Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here and some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic maybes".
13. Testimony of Preeti an eye witness has remained unchallenged MACT No. 102/13 LRs of Laxmi v Nand Kishore 9 of 21 10 in material particulars. R1 himself did not step into the witness box to prove that he was not responsible for causing the accident. As per report under section 173 Cr. PC R1 was prosecuted for having caused the said accident. He has not explained as to why he was prosecuted for causing the said accident. Offending vehicle was seized by the investigating officer from the side of accident.
14. As per postmortem report of the deceased he was brought to the hospital with history of road traffic accident according to which deceased was hit by the offending vehicle and she died at the spot. Doctor opined that the "death is due to combined effect of cranio cerebral damage and hemorrhagic shock consequent to multiple injuries to the body. All injuries are antemortem, recently caused before death, caused by blunt force/surface impact and may be sustained in a road traffic accident."
15. In view of the judgments cited above and evidence on record preponderance of probability is that deceased died due to rash and negligent driving of the offending vehicle by R1. This issue MACT No. 102/13 LRs of Laxmi v Nand Kishore 10 of 21 11 is accordingly decided in favour of the petitioners and against the respondents.
Issue No.2 Qua Compensation
16. Husband of deceased appeared in the witness box as PW1. He deposed that deceased was about 38 years old at the time of her death and she was doing private job and earning Rs. 8,000/ per month. There is no documentary evidence to prove that the deceased was doing private job and earning Rs. 8,000/ per month.
17. In Kiran Devi and another v. Surjit Yadav and others II (2010) ACC 289, it was held that in absence of cogent and reliable evidence of monthly income at the time of accident, the thumb rule is minimum wages notified under the minimum wages Act prevalent at the time of accident may be considered.
18. In ICICI Lombard General Insurance Company Ltd. v. Hari Singh & Ors. MAC APP No.122/2011, it was urged by LRs of the deceased that she used to sell milk and milk products at her house and was earning Rs.15,000/ per month. It was contended by Ld. Counsel for LRs of the deceased that Claims Tribunal MACT No. 102/13 LRs of Laxmi v Nand Kishore 11 of 21 12 ought to have accepted the deceased's income at Rs.15,000/ per month. Since no documentary evidence with regard to deceased's profession was produced, Claims Tribunal was held right in awarding loss of dependency on minimum wages.
19. In New India Assurance Company Ltd. v. Maya Devi & Ors. MAC.APP.627/2011 there was no documentary evidence with regard to the employment of the deceased as a cook at M/s Aman Deep Dhaba or his salary at Rs.8,000/ per month. Dhaba was not registered with the Sales Tax/Vat Department. No register for payment of wages was maintained. No receipt regarding payment of any salary to the deceased was produced. In absence of any evidence regarding employment of the deceased with the said Dhaba or his salary at Rs.8,000/ per month, Hon'ble High Court vide its order dated 27.08.2012 held that the only option left is to award loss of dependency on minimum wages.
20. In absence of any documentary evidence regarding the occupation of the deceased or her income, loss of dependency has to be calculated on the basis of minimum wages. Minimum MACT No. 102/13 LRs of Laxmi v Nand Kishore 12 of 21 13 wages admissible to unskilled worker were Rs. 7254 on the date of accident.
21.Age of the deceased in postmortem report is mentioned as 43 years and as per copy of ration card, which is verified by the investigating officer the birth of year of the deceased is mentioned as 1977, so she was 45 years at the time of accident.
22. In Rajesh & Others v. Rajbir Singh & Others 2013(6) SCALE 563, deceased was around 33 years of age at the time of accident. He was survived by his widow and minor children. He was working as a clerk in a Government School. Claims Tribunal awarded total compensation of Rs. 8,96,500/. On appeal Hon'ble High Court enhanced the total compensation to Rs. 10,17,000/. On further appeal to Hon'ble Apex Court total compensation was enhanced to Rs. 22,81,320/. Hon'ble Apex Court observed that compensation under section 168 has to be "just, fair and equitable" to make good the loss suffered as a result of the wrong as far as money can do.
23. Hon'ble Apex Court referred to Santosh Devi v. National Insurance Company Ltd. & Others 2012(4) SCALE 559 in MACT No. 102/13 LRs of Laxmi v Nand Kishore 13 of 21 14 which it was observed that even in absence of any evidence as to future prospects and increase of 30% in the income has to be provided where the victim had fixed income or was a self employed person. Relevant extract of the order is as follows: "18. Therefore, we do not think that while making the observations in the last three lines of paragraph 24 of Sarla Verm's judgment, the Court had intended to lay down an absolute rule that there will be no addition in the income of a person who is selfemployed or who is paid fixed wages. Rather, it would be reasonable to say that a person who is self employed or is engaged on fixed wages will also get 30 per cent 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."
24. However to make compensation just fair and equitable Hon'ble Apex Court observed:
11. Since, the Court in Santosh Devi's case (supra) actually intended to follow the principle in the case of salaried persons as laid in Sarla Verma's case (supra) and to make it applicable also to the selfemployed MACT No. 102/13 LRs of Laxmi v Nand Kishore 14 of 21 15 and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30% always; it will also have a reference to the age. In other words, in the case of self employed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an addition of 50% to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any. Addition should be 30% in case the deceased was in the age group of 40 to 50 years.
12. In Sarla Verma's case (supra), it has been stated that in the case of those above 50 years, there shall be no addition. Having regard to the fact that in the case of those selfemployed or on fixed wages, where there is normally no age of superannuation, we are of the view that it will only be just and equitable to provide an addition of 15% in the case where the victim is between the age group of 50 to 60 years so as to make the compensation just, equitable, fair and reasonable. There shall normally be no addition thereafter".
Accordingly 30% addition is to be made. MACT No. 102/13 LRs of Laxmi v Nand Kishore 15 of 21 16 Deduction towards personal and living expenses & multiplier
25. Deceased was survived by seven LR's. Jagdish as PW1 stated in para 7 of his affidavit that all were dependent on income of deceased. As such 1/5 is to be deducted towards personal living and expenses as per Sarla Verma's & Ors v. DTC & Another 2009 ACJ 1298.
26. Calculation Minimum Wages Rs.7254/ Addition of 30% towards inflation Rs.7254 + 2176 = 9430/ Deduction of 1/5 as per Sarla Verma Rs.9430 1886 = 7544/ The loss of dependency comes to Rs. 12,67,392/ (Rs. 7544x12x14)
27. Regarding compensation payable on account of loss of consortium Hon'ble Supreme Court in Rajesh & Ors (Supra) observed that "The ratio of a decision of this Court, on a legal issue is a precedent. But an observation made by this court, mainly to achieve uniformity and MACT No. 102/13 LRs of Laxmi v Nand Kishore 16 of 21 17 consistency on a socioeconomic issue, as contrasted from a legal principle, though a precedent, can be, and in fact ought to be periodically revisited, as observed in Santosh Devi(Supra). We may therefore, revisit the practice of awarding compensation under conventional heads: loss of consortium to the spouse, loss of love, care and guidance to children and funeral expenses. It may be noted that the sum of Rs. 2500/ to Rs. 10,000/ in those heads was fixed several decades ago and having regard to inflation factor, the same needs to be increased. In Sarla Verma's case (Supra), it was held that compensation for loss of consortium should be in the range of Rs. 5000/ to Rs. 10,000/. In legal parlance, 'consortium' is the right of the spouse to the company, care, help, comfort guidance, society, solace, affection and sexual relations with his or her mate. That non pecuniary head of damages has not been properly understood by our courts. The loss of companionship, love, care and protection, etc., the spouse is entitled to get, has to be compensated appropriately. The concept of nonpecuniary damage for loss of consortium is one of the major heads of award of compensation in other parts of the world more particularly in the United States of America, Australia, etc. English Courts have also recognized the right of a spouse to get compensation even during the period of temporary disablement. By loss of consortium, the courts have made an attempt to MACT No. 102/13 LRs of Laxmi v Nand Kishore 17 of 21 18 compensate the loss of spouse's affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are of the view that it would only be just and reasonable that the courts award at least rupees one lakh for loss of consortium."
In view of the above Rs. 1 lac is given for loss of consortium. Rs. 1 lac is granted to minor children towards loss of love, care, guidance as per Rajesh & Ors (supra).
28. Regarding compensation payable towards funeral expenses it was further observed in Rajesh & Ors (Supra) "We may also take judicial notice of the fact that the Tribunals have been quite frugal with regard to award of compensation under the head 'Funeral Expenses". The 'Price Index', it is a fact has gone up in that regard also. The head 'Funeral Expenses' does not mean the fee paid in the crematorium or fee paid for the use of space in the cemetery. There are many other expenses in connection with funeral and, if the deceased is follower of any particular religion, there are MACT No. 102/13 LRs of Laxmi v Nand Kishore 18 of 21 19 several religious practices and conventions pursuant to death in a family. All those are quite expensive. Therefore, we are of the view that it will be just, fair and equitable, under the head of 'Funeral Expenses', in the absence of evidence to the contrary for higher expenses, to award at least an amount of Rs. 25,000/."
In view of the above Rs. 25,000/ is granted towards funeral expenses. Rs. 10,000/ is granted towards loss of estate.
29. Jagdish PW1 deposed that Rs. 1,26,106/ were spent in treatment of deceased but there are no document to prove the same. R3 in its reply admitted medical expenses of Rs. 13,433/. The same are accordingly granted.
30. The over all compensation of deceased thus comes to Rs. 15,15,825/. Therefore, total award amount comes to Rs. 15,15,825/, which is tabulated below: Sl. No Compensation under various heads Amount awarded
1. Loss of dependency Rs. 12,67,392/ 2 Loss of consortium Rs.1,00,000/
3. Loss of care & guidance for minor Rs. 1,00,000/ children
4. Funeral expenses Rs. 25,000/ MACT No. 102/13 LRs of Laxmi v Nand Kishore 19 of 21 20
5. Loss of estate Rs. 10,000/
6. Medical expenses Rs. 13,433/ Total Rs. 15,15,825/ Compensation qua item No. 2 to 4 as per Rajesh & Ors. (supra)
31. R3 is accordingly directed to deposit within 30 days from today the award amount of Rs. 15,15,825/ with interest at the rate of 7.5 % per annum from the date of filing of the DAR till notice of deposit of award amount to be given by R2 to petitioners and their counsel.
32. I have heard learned counsel for petitioners regarding financial needs of the petitioners. In view of the submissions made and further in view of the judgment in General Manager, Kerala State Road Transport Corporation Vs. Susamma Thomas & Others, 1994 (2) SC, 1631 following arrangements are hereby ordered:
33. Rs. 2 lac each with proportionate interest be given to minor children namely Preeti, Vikas, Pooja and Akash and be kept in FDR in their names till they attain the age of majority. Rs. 1 lac with proportionate interest be given to Jyoti and kept in FDR in MACT No. 102/13 LRs of Laxmi v Nand Kishore 20 of 21 21 her name for two years. Rs. 50,000/ be given to Arti. Remaining amount with proportionate interest be given to husband of deceased, out of which Rs. 50,000/ be released to him and remaining amount be kept in FDR in his name for five years.
34. The interest on the aforesaid fixed deposits shall be paid monthly by automatic credit of interest in their Saving Accounts.
35. The petitioners shall not have any facility of loan or advance on these FDRs. However, in case of emergent need, they may approach this Tribunal for premature encashment of FDR's.
36. The DAR is accordingly disposed of.
Announced in the open Court Judge MACT today i.e. 30.11.2013 Rohini Courts, Delhi
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