Delhi District Court
Smt. Poonam (Age 22 Yrs. Widow) vs Sh. Amit Kumar (Driver) on 13 December, 2012
IN THE COURT OF SH. ARUN BHARDWAJ
PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS TRIBUNALII,
DWARKA COURTS, NEW DELHI
MACT No. 44/12/10
IN THE MATTER OF :
1. Smt. Poonam (Age 22 yrs. Widow)
W/o late Sh. Naresh
2. Master Nakul (Age 6 months Son)
S/o late Sh. Naresh
3. Sh. Kundan Lal (Age 56 yrs. Father)
S/o Sh. Girvar Lal
4. Smt. Shanti Devi (Age 50 yrs. Mother)
W/o Sh. Kundan Lal
All the petitioners are R/o 2451
Gali Balmiki, Ajmeri Gate, Delhi.
...... Petitioners
Versus
1. Sh. Amit Kumar (Driver)
S/o Sh. Jaibir Singh
R/o D302, Gali No. 4
Prem Nagar, New Delhi.
2. Smt. Munesh Devi (Owner)
W/o Sh. Jaibir Singh
R/o Plot No. D302
Prem Nagar, BlockD
PP0279, Najafgarh, New Delhi.
MACT No. 44/12/10 Smt. Poonam & Ors. v. Sh. Amit Kumar & Ors. Page 1 of 15
3. Sri Ram General Insurance Company Ltd. (Insurer)
From 01.06.2010 till 31.05.2011
E8, EPIP RIICO Industrial Area Sita Pura
Jai Pur - 302022 (Rajasthan).
........ Respondents
FILED ON : 15.09.2010
RESERVED ON : 05.12.2012
DECIDED ON : 13.12.2012
: J U D G M E N T :
1. This is a claim petition filed under Section 166 and 140 of the Motor Vehicles Act, 1988.
2. Petitioner No. 1 is the Widow, Petitioner No. 2 is the minor child and Petitioners No. 3 and 4 are the parents of Sh. Naresh who met with fatal injuries in a road traffic accident on 12.07.2010.
3. Respondent No. 1 is the driver, Respondent No. 2 is the Owner, Respondent No. 3 is the insurer of the offending vehicle.
Case of Petitioners:
4. It is stated in this claim petition that on 12.07.10, at about 7.35 p.m., Sh. Naresh (hereinafter described as the deceased) was going on his motorcycle bearing no. DL7S BD7694 Hero Honda CD Delux Black colour, as per rules and regulations, on the correct side of the road and when he reached near Nalapar underpass, suddenly and abruptly, one MACT No. 44/12/10 Smt. Poonam & Ors. v. Sh. Amit Kumar & Ors. Page 2 of 15 motorcycle bearing no. DL4SBQ0676, Honda Unicorn, came form the side of underpass in a shooting speed, driven by Respondent No. 1 in a rash and negligent manner and struck the deceased.
5. It is stated that the deceased was removed from the place of accident by PCR and was declared by doctors as 'Brought Dead' in the hospital.
6. It is stated that FIR No. 137/10, under Section 279/304 A of IPC is registered against Respondent No. 1 at P.S. Kapashera, New Delhi.
7. It is stated that the deceased was 25 years of age at the time of accident and was earning Rs. 8,000/ per month.
8. In these circumstances, petitioners have prayed for a compensation of Rs. 30 lacs with interest @ 20% p.a. from the date of accident till its realisation. Case of Respondent No. 1 and 2:
9. Respondent No. 1 and 2 have filed a common written statement and have stated that deceased himself was rash and negligent while driving his motorcycle and therefore claim petition is liable to be dismissed.
10. It is stated that Respondent No. 1 was having a valid and effective driving license which is valid till 16.07.2029. It is also stated that alleged accident was never caused by Respondent No. 1 and present case is filed by petitioners against Respondent No. 1 on the basis of a false complaint.
MACT No. 44/12/10 Smt. Poonam & Ors. v. Sh. Amit Kumar & Ors. Page 3 of 1511. Rest of the contents of claim petition were denied and it was prayed that claim petition be dismissed. Case of Respondent No. 3:
12. Respondent No. 3 has also filed its written statement and has stated that the same is not maintainable for want of non joinder and misjoinder of necessary parties.
13. It is stated that deceased was responsible for contributory negligence as both the vehicles involved in the accident were of same category and it is a case of head on collision between the two vehicles and deceased himself was driving the motorcycle in a rash and negligent manner.
14. It is also stated that insurance company will have no liability in case it is found that the driver of offending vehicle was not having a valid and effective driving license at the time of accident and Respondent No. 2 knowingly and willingly had handed over the vehicle to the said driver.
15. It is also stated that if the driver of offending vehicle was found driving under the influence of alcohol at the time of accident, in that event answering respondent will not be liable to pay any compensation to the petitioners.
16. Rest of the contents of claim petition were denied but factum of insurance of the offending vehicle vide policy no. 502377 from 01.06.10 to 31.05.11 was admitted.
17. From the pleadings of parties, following issues were framed: (1) Whether Naresh, husband of petitioner no. 1 had sustained fatal injuries on his person in MACT No. 44/12/10 Smt. Poonam & Ors. v. Sh. Amit Kumar & Ors. Page 4 of 15 an accident which took place on 12.07.2010 due to negligent driving of motorcycle bearing registration no. DL4SBQ0676 which was being driven in a negligent manner by respondent no. 1, owned by respondent no. 2 and insured with respondent no. 3? ........OPP (2) In case, issue No. 1 is decided in favour of the petitioner, to what amount of compensation he is entitled to and from whom?
(3) Relief.
Evidence on behalf of Petitioners:
18. Widow of the deceased Smt. Poonam appeared in the witness box as PW1 and stated that her husband was working as CAD Operator at Graffiti Exports and was earning Rs. 8000/ per month at the time of accident.
19. Rest of the contents of evidence by way of affidavit were similar to the contents of claim petition noted above.
20. During her statement, she proved her marriage card as Ex. PW1/1, ESIC Card given to the deceased as Ex. PW1/2, Certificate of employer as Ex. PW1/3 and driving license of the deceased as Ex. PW1/4.
21. Witness was not cross examined by Respondent No. 1 and 2 who were present in person and PW1 was also not cross examined by counsel for insurance company as none was present on behalf of insurance company when the statement of PW1 was recorded.
22. Second witness examined on behalf of petitioners MACT No. 44/12/10 Smt. Poonam & Ors. v. Sh. Amit Kumar & Ors. Page 5 of 15 was Sh. Ram Chander, HR Manager of Graffiti Exports who entered in the witness box as PW2 and stated in his evidence by way of affidavit that he (PW2) is working with Graffiti Exports for the last two years. The application form given by deceased for a job in Graffiti Exports on 01.03.08 was proved as Ex. PW2/12, application for leave given by the deceased from 19.06.10 to 15.07.10 for construction of his house was proved as Ex. PW2/3, pay slips for the months of May and June, 2010 were proved as Ex. PW2/45, attendance record for the month of June and July, 2010 was proved as Ex. PW2/67 and records from salary register for the month of March, 2008 was proved as Ex. PW2/8 and salary register record for the month of May, 2010 was proved as Ex. PW2/9.
23. PW2 deposed in examination in chief that as per policy of the company there is a provision for annual increment depending upon performance of an employee. Deceased had earned increments on the basis of good performance since the date of his joining till his death. Deceased was a permanent employee and age of retirement in company is 58 years.
24. In cross examination by counsel for insurance company he deposed that he has personal knowledge about the case as he is HR Manager in the company for the last two years.
25. No other witness was examined by any other party.
26. Arguments were addressed by Ms. Neelam MACT No. 44/12/10 Smt. Poonam & Ors. v. Sh. Amit Kumar & Ors. Page 6 of 15 Chaudhary, learned Counsel for petitioner and Ms. Shruti Bhasin, learned Counsel for insurance company.
27. On the basis of pleadings of parties, evidence on record and arguments addressed, issuewise findings are as under: ISSUE NO. 1:
28. The burden of proof that the offending vehicle was being driven rashly and negligently is always on the claimants. This is rather sine qua non for succeeding in a claim petition under Section 166 of Motor Vehicles Act.
29. Police after investigation in the matter has filed charge sheet against Respondent No. 1, certified copy of which is on record.
30. Respondent No. 1 has not entered in the witness box to prove his innocence.
31. In Ranu Bala Paul & Ors. v. Bani Chakraborty & Ors. 1999 ACJ 634, the Hon'ble Gawhati High Court has observed as under: "In deciding a matter tribunal should bear in mind the caution struck by the Apex Court that a claim before the Motor Accidents Claims Tribunal is neither a criminal case nor a civil case. In a criminal case in order to have conviction, the matter is to be proved beyond reasonable doubt and in a civil case the matter is to be decided on the basis of preponderance of evidence, but in a claim before the Motor Accidents Claims Tribunal the standard of proof is much below than what is required in a criminal case as well as in a civil case. No MACT No. 44/12/10 Smt. Poonam & Ors. v. Sh. Amit Kumar & Ors. Page 7 of 15 doubt before the tribunal there must be some material on the basis of which the tribunal can arrive or decide things necessary to be decided for awarding compensation. But the tribunal is not expected to take or to adopt the nicety of a civil or of a criminal case. After all, it is a summary inquiry and this is a legislation for the welfare of the society"
32. This case was noticed by Hon'ble High Court of Delhi in the case titled as Cholamandalam M.S. General Insurance Co. Ltd. v. Kamlesh: 2009 (3) AD (Delhi) 310 where adverse inference was drawn because the driver of the offending vehicle had not appeared in the witness box to corroborate his defence taken in the written statement. It was noted that there is nothing on record to show that the claimant had any enmity with the driver of offending vehicle so as to falsely implicate him in the case.
33. In the case of National Insurance Co. Ltd. v. Vijay Laxmi & Ors. MAC APP. No. 375/06 dated 05.07.12, the Hon'ble High Court of Delhi has held as under: "8. In Bimla Devi and Ors. v. Himachal Road Transport Corporation and Ors., (2009) 13 SC 530, the Supreme Court held that in a petition under Section 166 of the Act, the Claimants 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 MACT No. 44/12/10 Smt. Poonam & Ors. v. Sh. Amit Kumar & Ors. Page 8 of 15 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 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."
9. The report in Bimla Devi (Supra) was relied on by the Supreme Court in its latest judgments in Parmeshwari v. Amir Chand (2011) 11 SCC 635 and Kusum Lata v. Satbir, (2011) 3 SCC 646."
34. 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: "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 Apex Court in Oriental Insurance Co. Ltd. v. Meena Variyal (Supra). 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 F.I.R 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 MACT No. 44/12/10 Smt. Poonam & Ors. v. Sh. Amit Kumar & Ors. Page 9 of 15 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."
35. Most importantly, counsel for insurance company on 20.11.12 had stated that only quantum is disputed and rash and negligent driving by Respondent No. 1 shall not be agitated by insurance company.
36. Therefore, this issue is decided in favour of petitioners and against respondents. ISSUE NO. 2:
37. As per Ex. PW1/4 which is driving license of the deceased, his date of birth was 04.04.1981. The date of accident is 12.07.2010.
38. Therefore, deceased was 29 years of age at the time of accident.
39. As per judgment of Hon'ble Supreme Court in the case of Smt. Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr., 2009 (6) SCALE 129, the multiplier applicable in this case will be of 17. \
40. As per evidence of PW2, the salary of the deceased in the month of June, 2010 was Rs. 8,000/ i.e. Rs. 3,800/ Basic Pay, Rs. 2,400/ H.R.A. and Rs. 1,800/ Conveyance MACT No. 44/12/10 Smt. Poonam & Ors. v. Sh. Amit Kumar & Ors. Page 10 of 15 Allowances.
41. Conveyance allowances cannot be treated as part of salary. Once conveyance allowance is deducted, the salary of the deceased would be Rs. 6,200/ per month.
42. There are four dependents. Testimony of PW1 that the deceased was sole caretaker and bread winner for the family has remained unrebutted.
43. Therefore, the deduction for personal expenses of the deceased will be 1/4th.
44. After deducting 1/4th for personal expenses, the income of the deceased would be Rs. 4,650/ per month.
45. Deceased was 29 years of age at the time of accident. He was in permanent employment as per evidence of PW2. He was earning annual increments.
46. Therefore, 50% is to be added for loss towards future prospects.
47. After adding 50% towards future prospects, financial loss of petitioners will be Rs. 6,975/ per month or Rs. 83,700/ per annum.
48. As multiplier of 17 is to be applied, Loss of Dependency for petitioners will be Rs. 14,22,900/.
49. So far as loss of love and affection is concerned, Hon'ble High Court of Delhi in the case of New India Assurance Company Ltd. Vs. Bharat Singh: MAC Appeal No. 137/12, dated 08.08.2012 has held that when full compensation towards loss of dependency is granted, only a MACT No. 44/12/10 Smt. Poonam & Ors. v. Sh. Amit Kumar & Ors. Page 11 of 15 nominal sum is to be awarded towards loss of Love and Affection.
50. It was further held that the trend of the Hon'ble High Courts and the Hon'ble Supreme Court is to grant a compensation of Rs. 25,000/ for Loss of Love and Affection. Such compensation was granted by the Hon'ble Supreme Court in the case of Sunil Sharma Vs. Bachitar Singh Singh:
2011 (11) SCC 425 and in the case of Baby Radhika Vs. Oriental Insurance Company Limited: 2009 (17) SCC 627.
51. Therefore, the petitioners are also entitled to a sum of Rs.25,000/ for Loss of Love & Affection.
52. Petitioners are also entitled to a sum of Rs. 10,000/ for Cremation Charges and Rs.10,000/ for Loss of Estate.
53. Petitioner No. 1 is also entitled to a sum of Rs. 10,000/ for Loss of Consortium.
54. Therefore, total compensation payable to the petitioners would be Rs. 14,77,900/ which shall be payable with interest @ 7.5% per annum (this is the rate of interest which is being awarded by the Hon'ble High Court of Delhi at present) from the date of filing of this claim petition which is 15.09.20010 till its deposit.
55. Insurance Company has not proved any defence.
56. Therefore, compensation would be deposited by the Insurance Company within 30 days from today under intimation to the petitioners by registered post.
MACT No. 44/12/10 Smt. Poonam & Ors. v. Sh. Amit Kumar & Ors. Page 12 of 1557. For apportionment of compensation, following directions are passed: (1)30%/, out of the total compensation awarded, with proportionate interest shall be payable in favour of Petitioner No. 1, Smt. Poonam widow of the deceased. This payment shall be deposited by the insurance company directly with State Bank of India, Dwarka Courts, New Delhi and the cheque will be in the name of SBI A/c Smt. Poonam. Out of this, 10% shall be released in her Saving Bank Account to be opened in State Bank of India, Dwarka Courts, New Delhi. Balance compensation will be kept in 10 FDRs of equal amount for a period of 1 to 10 years. Monthly interest will be credited in her Saving Bank Account regularly.
(2) 30%, out of the total compensation awarded, with proportionate interest shall be payable in favour of Petitioner No. 2, Master Nakul minor son of the deceased. This payment shall be deposited by the insurance company directly with State Bank of India, Dwarka Courts, New Delhi and the cheque will be in the name of SBI A/c Master Nakul. This compensation will be kept in an FDR till the time he attains the age of 21 years. Monthly interest will be credited in Saving Bank Account of Petitioner No. 1 regularly which she will use for maintenance of Petitioner No. 2.
(3)20%, out of the total compensation awarded, with proportionate interest shall be payable in favour of Petitioner No. 3, Shri Kundan Lal, father of the deceased. This payment shall be deposited by the insurance company directly with State Bank of India, Dwarka Courts, New Delhi and the cheque will be in the name of SBI MACT No. 44/12/10 Smt. Poonam & Ors. v. Sh. Amit Kumar & Ors. Page 13 of 15 A/c Shri Kundan Lal. Out of this, 10% shall be released in his Saving Bank Account to be opened in State Bank of India, Dwarka Courts, New Delhi. Balance compensation will be kept in 5 FDRs of equal amount for a period of 1 to 5 years. Monthly interest will be credited in his Saving Bank Account regularly.
(4)20%, out of the total compensation awarded, with proportionate interest shall be payable in favour of Petitioner No. 4, Smt. Shanti Devi, mother of the deceased. This payment shall be deposited by the insurance company directly with State Bank of India, Dwarka Courts, New Delhi and the cheque will be in the name of SBI A/c Smt. Shanti Devi. Out of this, 10% shall be released in her Saving Bank Account to be opened in State Bank of India, Dwarka Courts, New Delhi. Balance compensation will be kept in 5 FDRs of equal amount for a period of 1 to 5 years. Monthly interest will be credited in her Saving Bank Account regularly.
(5)No Cheque Book will be given to the petitioners.
(6)They will be given passbook and photocopies of FDRs.
(7) Original FDRs shall remain with the Bank.
(8)Petitioners shall cooperate with the bank by providing required documents and by completing necessary formalities for opening of bank account.
(9)Petitioners shall be at liberty to seek transfer of FDR Accounts and Saving Bank Accounts to any other Branch of SBI, if so desired.
MACT No. 44/12/10 Smt. Poonam & Ors. v. Sh. Amit Kumar & Ors. Page 14 of 15(10)Insurance company will deposit the compensation with the bank after its intimation to this Tribunal and the bank will accept compensation cheques only if its intimation is shown to be given to this Tribunal by the insurance company.
58. Copy of this order be given dasti to all the parties and a copy be also sent to the State Bank of India, Dwarka Courts, New Delhi.
59. File be consigned to the Record Room.
Announced in the open Court On the 13th Day of December, 2012 (ARUN BHARDWAJ) PRESIDING OFFICER MOTOR ACCIDENTS CLAIMS TRIBUNALII DWARKA COURTS: NEW DELHI MACT No. 44/12/10 Smt. Poonam & Ors. v. Sh. Amit Kumar & Ors. Page 15 of 15