Delhi District Court
2 vs Sahid on 10 September, 2013
1
IN THE COURT OF SHRI SANJIV JAIN : PRESIDING OFFICER :MACT02
SOUTH DISTRICT : SAKET COURTS : NEW DELHI
Petition No. : 91/12
Unique Case ID : 02406C0097272012
Ms. Reena @ Nishi Saini
D/o Sh. Babu Lal Saini
R/o 1575, Kotla Mubarakpur,
New Delhi ..... Injured
Petition No. : 98/12
Unique Case ID : 02406C0105832012
Sachin @ Sonu Saini
S/o Sh. Devendar Saini
R/o 49, Masjid Moth,
New Delhi ..... Injured
Petition No. : 99/12
Unique Case ID : 02406C0105292012
1. Jaya Saini
W/o Sh. Sachin @ Sonu Saini ..... Mother
2. Sachin @ Sonu Saini
S/o Sh. Devender Saini ..... Father
Both R/o 49, Masjid Moth,
New Delhi
Petition No. : 91/12, 98/12, 99/12 and 100/12 Page No. 1 of 28
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Petition No. : 100/12
Unique Case ID : 02406C0106462012
Jaya Saini
W/o Sh. Sachin @ Sonu Saini
R/o 49, Masjid Moth,
New Delhi
...... Petitioners
Versus
1. Sahid
S/o Sh. Amir Khan
R/o Gali No.5, Harjan Colony,
Chutmalpur, Post Fatehpur,
Saharanpur, U.P. ....... Driver
2. Shamim
S/o Sh. Nafis
R/o 589, South Civil Line,
Muzaffar Nagar, UP ....... Owner
3. Reliance General Insurance Co. Ltd.
Plot No. 60, Okhla Industrial Area,
Opp. SBI, New Delhi - 110019 ....... Insurer
......Respondents
Date of Institution : 19.04.2012 (Petition No. 91/12)
04.05.2012 (Petition No. 98/12)
04.05.2012 (Petition No. 99/12)
04.05.2012 (Petition No. 100/12)
Date of reserving of judgment/order : 10.09.2013
Date of pronouncement : 10.09.2013
Petition No. : 91/12, 98/12, 99/12 and 100/12 Page No. 2 of 28
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J U D G M E N T :
1. The claim petitions bearing no. 91/12, 98/12, 99/12 and 100/12 have been filed by Reena Saini, Sachin @ Sonu Saini, Jaya Saini & Ors. and Jaya Saini for claiming compensation for the injuries sustained by Reena @ Nishi Saini, Sachin @ Sonu, Jaya Saini and untimely death of a minor girl Baby Vartika in an accident on the night intervening 20 and 21.11.11 at / near Bhatta No. 5 Delhi Meerut road, U.P.
2. Briefly, the facts are that on the aforesaid date Arun @ Dev Saini and Nisha @ Reena Saini got married. At about 5.00 AM they were going to Meerut (Bridegroom's ancestoral home) in a Maruti Alto car bearing no. DL 3C BJ 8975 being driven by Sachin. Ms. Jaya, Preeti and the deceased were also in the car. When their car crossed Bhatta No.5 at Delhi Meerut road, at about 7.00 AM, a Tata Truck bearing no. UP 12 T 2350 came from the wrong side (opposite side on one way road) at a high speed being driven by its driver in a manner so rash and negligent. The truck first of all hit a Santro car. The truck driver in order to run away accelerated its speed and hit the Alto car from front. All the occupants of the car sustained injuries. They were taken to Kailash Medicare and Research Centre at Prem Enclave near DPS Ghaziabad at Delhi Meerut road. The deceased girl being serious was taken to Yashoda Hospital, Nehru Vihar, Ghaziabad where she succumbed to the Petition No. : 91/12, 98/12, 99/12 and 100/12 Page No. 3 of 28 4 injuries on 21.11.2012. Her postmortem was conducted. The cause of death was opined as CardioRespiratory arrest due to head injury. Arun @ Dev was referred to Fortis Hospital, Shalimar Bagh. Other injured were also transferred to Yashoda Hospital. Respondent no.1 was driving the truck at the time of accident. It was owned by respondent no.2 and insured with respondent no.3. The girl baby Vartika was six months old and was survived by her parents, the petitioners of the case Petition no. 99/12. Reena Saini after discharge could not go to her husband's home and was taken to her parental home at Delhi. They lived separately and it resulted into their divorce. The car got badly damaged. Out of total of Rs. 2,91,991/, Reena Saini was reimbursed Rs. 2,25,000/ by the company. It was alleged that because of the accident her life was shattered as she has to carry social stigma for whole life. She was possessing good health and physique but due to the injuries she could not go her office for a long time and had to employ a full time attendant. Sachin used to do business. In that accident he sustained injuries on his chest and lower limbs. Jaya Saini was a housewife. She sustained fracture proximal tibia left leg, second rib and lacerated wound over scalp of size 4" x 1.5". It was stated that the petitioners incurred heavy expenditure on their treatment, special diet and conveyance.
3. Notice of all the petitions was given to the respondents. Petition No. : 91/12, 98/12, 99/12 and 100/12 Page No. 4 of 28 5
4. All the respondents contested the petitions and filed their written statements.
5. Respondent no.1 and 2 alleged that the accident had occurred due to fault of car driver as he was driving the car in a manner so rash and negligent. Respondent no.1 was not negligent and was driving the truck at a normal speed. They alleged that the car was over loaded with passengers and was being driven carelessly. They denied the averments made in the petition and even denied having caused the accident. They stated that their vehicle was insured with respondent no.3. Respondent no.3 alleged that the respondent no.1 did not have a valid and effective driving licence at the time of accident and the owner knowingly and willfully had given the vehicle to the driver to drive the vehicle so, it is a case of violation of terms and conditions of the policy. It was also alleged that the car was being rashly and negligently driven by Sachin Saini who had caused the accident. They admitted that the vehicle was insured with it vide policy cover note no. 111000054526 for the period from 27.03.11 to 26.03.12.
6. Since all the petitions had arisen out of the same accident so, they were consolidated and vide order dated 28.09.2012 the petition titled "Reena Saini Vs. Sahid & Ors. Petition No. 91/12", was taken as lead case and following issues were framed :
Petition No. : 91/12, 98/12, 99/12 and 100/12 Page No. 5 of 28 6
1. Whether petitioners sustained injuries in road accident on 21.11.11 at about 7.00 AM at Bhatta No.5, Meerut Road, Delhi due to rash and negligent driving of Tata Truck bearing no. UP 12 T 2350 by R1, vehicle owned by R2 and insured with R3?
2. To what amount of compensation the petitioners are entitled and from whom?
3. Relief.
7. To substantiate their case, petitioners examined Ms. Reena Saini (Petitioner in petition no. 91/12) as PW1, Sachin @ Sonu Saini (petitioner no.2 in petition no. 99/12) as PW1, Sachin @ Sonu Saini (petitioner in petition no. 98/12) as PW1 and Jaya Saini (Petitioner in petition no. 100/12) as PW1. They also examined Deepak, Incharge MRT Services, Yashoda Hospital as PW2. Sh. Umesh Khosla, Chief Officer, General Insurance as PW3 and Sh. Asha Ram Bhati, Record Clerk, Yashoda Hospital as PW2.
8. Respondents did not examine any witness.
9. I have heard the arguments advanced by Ld. counsel Sh. M P Bhardwaj for the petitioners and Ms. Sadhna Chaudhary Ld. counsel for respondent no.3.
10. It was submitted by Ld. counsel for the respondent no.3 that it is a case of Petition No. : 91/12, 98/12, 99/12 and 100/12 Page No. 6 of 28 7 contributory negligence. Ms. Reena Saini had taken family health plan scheme from which she was reimbursed her medical expenses. The petitioners did not file the original bills and there is no document placed on record to indicate that Ms. Reena Saini did not enjoy her marital life.
11. Ld. counsel for the petitioners on the contrary submitted that Ms. Reena Saini could not go to her matrimonial house. She was divorced by her husband Arun. The accident had occurred at Delhi Meerut road. The truck had hit the Maruti car which was being driven rashly and negligently by the respondent no.1. The accident resulted into death of Baby Vartika and injuries on the person of Reena, Sachin and Jaya. The petitioners incurred heavy expenditure on their treatment. Their bills were lost and the petitioners have examined PW2 to prove the actual expenses incurred by them on their medical treatment.
12. I have considered the submissions and perused the entire evidence on record. My findings on the issues are as follows :
I S S U E No. 1
13. It is well settled law that where petition under Section 166 of the Act is instituted, it becomes the duty of the petitioner to establish rash and negligent driving. To prove rash and negligent driving in a petition under Petition No. : 91/12, 98/12, 99/12 and 100/12 Page No. 7 of 28 8 Motor Vehicles Act, Tribunal need not go into the technicality because strict rules of procedure and evidence are not followed. Basically, in road accident cases, Tribunal has simply to quantify the compensation which is just rational and reasonable on the basis of enquiry. The proceedings under Motor Vehicles Act are not akin to the proceedings in a civil suit. Further, roving enquiry is not required to prove the rashness and negligence on the part of the driver as has been held in Kaushumma Begum and others Vs New India Assurance Co. Ltd. 2001 ACJ 421 SC.
14. PW1 Sachin Saini has stated that on the night of 20.11.2011 they were going to Meerut in a Maruti Alto Car Bearing no. DL 3C BJ 8957 being driven by him. Their car was behind a Santro car which was occupied by his relatives. When the cars crossed Bhatta no.5 at Delhi Meerut road, at about 7.00 PM a Tata Truck bearing no. UP 12 T 2350 came from the wrong side (opposite side on one way) at a high speed being driven in a rash and negligent manner and hit the Santro car. After hitting the Santro car, the truck driver tried to run away and in that process he accelerated the truck and hit the Alto car from front. All the occupants including him sustained injuries. They were taken to Kailash Medicare Research Centre at Prem Enclave near DPS Ghaziabad where they were admitted. He stated that his daughter was taken to Yashoda Hospital since her condition was critical. He proved his MLC. He stated that he was admitted at Kailash Hospital from where they Petition No. : 91/12, 98/12, 99/12 and 100/12 Page No. 8 of 28 9 were referred to Yashoda Hospital. He sustained injuries on his chest and lips. A case was registered vide FIR 1101/11 at the police station Sihani Gate, Ghaziabad against the respondent no.1 for causing the accident. He placed on record his driving licence Ex.PW1/D, discharge summary, medical prescriptions and copy of the criminal record. His crossexamination on behalf of respondent no.1 and 2 remained unchallenged. He denied that the accident had occurred due to his rash and negligent driving or he was drowsy or he was driving the car negligently. PW2 Reena Saini also deposed on the lines of PW Sachin. She denied that the accident had occurred due to rash and negligent driving of Sachin and the respondent no.1 was not at fault. PW Jaya Saini also corroborated the testimony of Sachin and Reena and stated the identical facts. She stated that she sustained fracture in tibia and ribs and injuries on her scalp. Reena stated that she sustained facial injury and injury on her right eyebrow. She also placed on record the cheques which were given towards damaged car by the insurance company.
15. On perusal of the FIR placed on record, I find that the case was registered on the same day of accident. It was stated in the statement that the accident was caused by the truck UP 12 T 2350 which was being driven rashly and negligently. On perusal of MLC placed on record, I find that the petitioners sustained multiple injuries. The minor girl Vartika died. Her postmortem was Petition No. : 91/12, 98/12, 99/12 and 100/12 Page No. 9 of 28 10 conducted and cause of death was opined cardiorespiratory arrest due to head injuries. Nothing can be inferred from the testimony of above witnesses that PW1 Sachin was negligent or the accident had occurred due to his rash and negligent driving of the car and his negligence had contributed to the accident.
16. Facts and circumstances rather show that petitioners Reena Saini, Jaya Saini, Sachin Saini sustained injuries and Baby Vartika died due to the injuries in the road accident on 21.11.11 at Bhatta no.5, Meerut road due to rash and negligent driving of Tata Truck bearing no. UP 12 T 2350 by the respondent no.1. Documents placed on record show that the truck was owned by respondent no.2 and it was insured with respondent no.3.
17. Issue no.1 is accordingly decided in favour of the petitioners and against the respondents.
I S S U E No. 2
18. The petitioners have claimed compensation for the injuries sustained by them in the accident. It is true that when a person is injured in a road accident, he is entitled to the compensation for the pecuniary and non pecuniary damages.
19. It has been held by Hon'ble Apex Court in R.O. Hattangadi V/s Pest Control (India) Pvt. Ltd., AIR 1995 SC 755 that : Petition No. : 91/12, 98/12, 99/12 and 100/12 Page No. 10 of 28 11 "Broadly speaking, while fixing the amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas nonpecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far as nonpecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury, the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e. on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life." Let me assess the compensation which the petitioner is entitled to under different heads.
Petition No. 91/12 MEDICAL EXPENSES :
20. PW1 has stated that after the accident she was taken to Kailash Medicare & Research Centre where her MLC no. 173 dated 21.11.11 was prepared. She sustained multiple injuries i.e. facial injury blunt with Maxila and blunt injury on her right Eyebrow with multiple abrasion on face. She remained hospitalised from 21.11.11 to 25.11.11. In the instant case the petitioner did Petition No. : 91/12, 98/12, 99/12 and 100/12 Page No. 11 of 28 12 not file the original bills but they have examined the Clerk who brought all the relevant records including the bills. The medical bills are of Rs. 28,967/. It was submitted by the counsel for the petitioner that out of the above expenses she has got Rs. 23,144/ from her mediclaim policy. I therefore, award Rs. 6,000/ to the petitioner towards medical expenses. PAIN AND SUFFERINGS & ENJOYMENT OF LIFE :
21. The petitioner sustained multiple injuries. She was operated. Due to the injuries, she suffered lot of mental pain and agony. Keeping in view the injuries she sustained and the treatment she underwent, I award Rs. 30,000/ to the petitioner towards Pain and Sufferings and enjoyment of life. SPECIAL DIET, CONVEYANCE & ATTENDANT CHARGES :
22. PW1 sustained multiple injuries in the accident. She was advised followup.
She was advised special diet for early recovery. I therefore, award Rs. 12,000/ to the petitioner towards special diet and conveyance. Her condition is such that she might have taken the help of an attendant for a period of three months. I award Rs. 12,000/ to the petitioner towards attendant charges.
LOSS OF INCOME :
23. The petitioner has stated that she was working with PTIC Ltd. and used to Petition No. : 91/12, 98/12, 99/12 and 100/12 Page No. 12 of 28 13 get Rs. 20,000/ p.m. PW3 Sh. Umesh Kholsa, Chief Officer, General Insurance, PTIC Pvt. Ltd. has brought the salary slip of the petitioner for the month of October, 2011 Ex.PW1/D. As per which she used to draw Rs. 14,000/ p.m. In the instant case the injuries on the petitioner were such that she might have remained bed ridden for about four months. Taking the salary of the petitioner as Rs. 14,000/ and the period of four months, she remained on bed rest, the loss of income is calculated as 4 x 14,000 = Rs. 56,000/. I therefore, award Rs. 56,000/ to the petitioner towards loss of income.
DAMAGE TO THE VEHICLE :
24. PW1 has stated she has purchased a new vehicle for her marriage and she was travelling in the same vehicle on her journey to her husband's parental house. The said vehicle was hit and damaged beyond repair. It was declared scrap by the insurance company and only an amount of Rs. 2,25,000/ was paid to her whereas the vehicle was insured for a sum of Rs. 2,91,991/. Hence, she suffered a loss of Rs. 66,991/.
I have perused the copy of cover note mark 'C'. The vehicle was insured for a total value (IDV) of Rs. 2,91,991/. I award Rs. 67,000/ to the petitioner towards damage to the vehicle.
25. Thus, the total compensation in favour of the petitioner is assessed as under :
Petition No. : 91/12, 98/12, 99/12 and 100/12 Page No. 13 of 28 14 Medical Expenses : Rs. 6,000/ Pain and Sufferings and Enjoyment of Life : Rs. 30,000/ Special Diet, Conveyance & Attendant : Rs. 24,000/ Loss of Income : Rs. 56,000/ Damage to the vehicle : Rs. 67,000/ ============= TOTAL : Rs. 1,83,000/ ============= Petition No. 98/12 MEDICAL EXPENSES :
26. PW1 has stated that after the accident he was taken to Kailash Medicare & Research Centre where his MLC no. 169 dated 21.11.11 was prepared. He sustained multiple injuries i.e. blunt injury chest with nasal bleed and cut under lower lip. He remained hospitalised from 21.11.11 to 25.11.11. In the instant case he did not file the original bills but has examined the Clerk who brought all the relevant records including the bills. The medical bills of the petitioner are of Rs. 35,899/. I therefore, award Rs. 36,000/ to the petitioner towards medical expenses.
PAIN AND SUFFERINGS & ENJOYMENT OF LIFE :
27. The petitioner sustained multiple injuries. Due to the injuries, he suffered lot of mental pain and agony. Keeping in view the injuries he sustained and the treatment he underwent, I award Rs. 25,000/ to the petitioner towards Pain and Sufferings and enjoyment of life.
Petition No. : 91/12, 98/12, 99/12 and 100/12 Page No. 14 of 28 15 SPECIAL DIET, CONVEYANCE & ATTENDANT CHARGES :
28. PW1 sustained multiple injuries in the accident. He was advised followup.
He was advised special diet for early recovery. I therefore, award Rs. 10,000/ to the petitioner towards special diet and conveyance. His condition is such that he might have taken the help of an attendant for a period of two months. I award Rs. 10,000/ to the petitioner towards attendant charges. LOSS OF INCOME :
29. The petitioner has stated that he was running a bakery shop at the time of accident. He used to earn Rs. 25,000/ p.m. In the instant case the petitioner did not file any proof of income. Taking the minimum wages of a 'Matriculate' as on the date of accident i.e. Rs. 8112/ and the period of bed rest as two months, the loss of income comes to Rs. 16,224/ which is rounded off to Rs. 16,300/. I therefore, award Rs. 16,300/ to the petitioner towards loss of income.
30. Thus, the total compensation in favour of the petitioner is assessed as under :
Medical Expenses : Rs. 36,000/
Pain and Sufferings and Enjoyment of Life : Rs. 25,000/
Special Diet, Conveyance & Attendant : Rs. 20,000/
Loss of Income : Rs. 16,300/
============
TOTAL : Rs. 97,300/
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Petition No. : 91/12, 98/12, 99/12 and 100/12 Page No. 15 of 28
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Petition No. 100/12
MEDICAL EXPENSES :
31. PW1 has stated that she after the accident was taken to Kailash Medicare & Research Centre where her MLC no. 171 dated 21.11.11 was prepared. She sustained multiple injuries i.e. fracture proximal tibia (left) leg, fracture second rib with multiple injuries and large lacerated wound over scalp size 4"
x 1.5". She remained hospitalised from 21.11.11 to 25.11.11. In the instant case the petitioner did not file the original bills but examined the Clerk who brought all the relevant records including the bills. The medical bills Ex.PW2/A are of Rs. 50,973/. I therefore, award Rs. 51,000/ to the petitioner towards medical expenses.
PAIN AND SUFFERINGS & ENJOYMENT OF LIFE :
32. The petitioner sustained multiple injuries. She was operated. Due to the injuries, she suffered lot of mental pain and agony. Keeping in view the injuries she sustained and the treatment she underwent, I award Rs. 30,000/ to the petitioner towards Pain and Sufferings and enjoyment of life. SPECIAL DIET, CONVEYANCE & ATTENDANT CHARGES :
33. PW1 sustained multiple injuries in the accident. She was advised followup.
She was advised special diet for early recovery. I therefore, award Rs. 12,000/ to the petitioner towards special diet and conveyance. Her condition Petition No. : 91/12, 98/12, 99/12 and 100/12 Page No. 16 of 28 17 is such that she might have taken the help of an attendant for a period of two months. I award Rs. 12,000/ to the petitioner towards attendant charges. LOSS OF INCOME :
34. The petitioner at the time of accident was 27 years of age. She was looking after the entire family.
In the case of Arun Kumar Aggarwal & Another Vs National Insurance Company & Others, 2010 ACJ 2161 (Supreme Court) it was held that :
"The contribution made by the housewife to the house is invaluble and cannot be computed in terms of money. The gratuitous services rendered by the wife with too love and affection to the children and her husband and managing the household affairs cannot be equated with the services rendered by others. A wife or the mother does not work by the clock. She is in constant attendance of the family through out the day and night, unless she is employed and she is required to attend the employer's work for particular hours. She takes care of all the requirements of husband and children including cooking of food, washing of clothes etc. She teach a small children and small provides invaluable guidance to them for their future life. A housekeeper or maid servant can do the household work such as cooking food, washing clothes and utensils, keeping the house clean etc., but she can never be a substitute for a wife/mother who renders selfless service to her husband and children. It was held that the approach to compute the compensation by relying upon the minimum wages payable to a skilled worker does not comment our approval because it is most unrealistic to compare the gratuitous services of the housewife/mother with work of a skilled worker".
Petition No. : 91/12, 98/12, 99/12 and 100/12 Page No. 17 of 28 18
35. In the case of New India Assurance Co. Ltd Vs. Pitambar & Ors MAC APP. No. 301/2009 decided on 30.01.12 by Hon'ble High Court of Delhi. It was held that the loss of dependency on account of gratuitous services rendered by house wife shall be :
i) Minimum salary of a graduate/ matriculate/non matriculate where she is graduate, matriculate or non matriculate.
ii) There will be an addition of 25 % in the assumed income where the age of home maker is up to 40 years, 15 % where the age is above 40 years but less than 50 years.
iii) There will be deduction of 25% in the assumed income where the age is about 55 years but less than 60 years and 50 % where the age is about 60 years and less than 65 years.
iv) There shall not be any deduction towards personal and living expenses.
36. In the present case also the injured is a housewife and does not have any permanent income but she had been rendering gratuitous services to her family. One has to admit that in the long run, the services rendered by a woman in the household sustain a supply of labour to the economy and keep the human societies by weaving the social fabric and keeping it in good repair. In the present case the injuries were such that she might have remained bed ridden for four months. The accident took place on the intervening night of 20 and 21.11.2011. Taking a period of four months she remained bed ridden on account of injuries and wages for matriculate as on the date of accident as Rs. 8,112/ per month, the loss of income is Petition No. : 91/12, 98/12, 99/12 and 100/12 Page No. 18 of 28 19 calculated as 4 x 8,112 = 32,448/ which is rounded off to Rs. 32,500/. I therefore, award Rs. 32,500/ to the petitioner towards loss of income.
37. Thus, the total compensation in favour of the petitioner is assessed as under :
Medical Expenses : Rs. 51,000/
Pain and Sufferings and Enjoyment of Life : Rs. 30,000/
Special Diet, Conveyance & Attendant : Rs. 24,000/
Loss of Income : Rs. 32,500/
=============
TOTAL : Rs. 1,37,500/
=============
I S S U E N o. 2
Petition No. : 99/12
38. As the issue no.1 is decided in favour of petitioners and against the respondents thus, they become entitled for the compensation. Quantum of the compensation however, is required to be calculated. MEDICAL EXPENSES :
39. The deceased minor child was admitted in Yashoda Hospital on 21.11.11. She expired on the same day. The petitioners have filed the medical bills of Rs. 8,063/. I therefore, award Rs. 8,100/ to the petitioners towards medical expenses.
LOSS OF DEPENDENCY :
40. It has been held in a catena of judgments by Hon'ble Apex Court and various Petition No. : 91/12, 98/12, 99/12 and 100/12 Page No. 19 of 28 20 High Courts that emphasis in cases of personal injury and fatal accident should be on awarding substantial, just and fair compensation and not a token amount. It has been held in a number of judgments that general principle in calculating such sum of compensation, should be so as to put the injured or legal heirs of a deceased in case of fatal accident, in the same position as he would have been, if accident had not taken place.
41. PW1 during the course of his deposition has stated that the claimants are the parents and only legal heirs of the deceased. Testimony of PW1 remained unchallenged as nothing contradictory was brought on record to controvert the stand taken by the claimant.
42. In the case of "New India Assurance Company Limited V/s. Satender & Ors." reported as JT 2006(10) SC 234, it was held by the Hon'ble Supreme Court that :
"In case of young children of tender age, in view of uncertainties abound, neither their income at the time of death nor the prospects of future increase in their income not chances of advancement of their career are capable of proper determination on estimated basis. The reason is that at such an early age, the uncertainties in regard to their academic pursuits, achievement in career and thereafter advancement in life are so many that nothing can be assumed with reasonable certainty. Therefore neither the income of the deceased child is capable of assessment on estimated basis nor the financial loss suffered by the parents is capable of mathematical computation."
Petition No. : 91/12, 98/12, 99/12 and 100/12 Page No. 20 of 28 21
43. In case of "Shyam Narayan V/s. Kitty Tours Travels and Ors. Reported as IV (2005) ACC1" delivered by Hon'ble Mr. Justice Pradeep Nandrajog of Hon'ble High Court of Delhi has held that in case of death of minor child below 15 years as per second schedule appended to Section 163 (A) of Motor Vehicle Act 1988, notional income should be taken of Rs.15,000/ per annum to which multiplier of 15 is to be taken as provided in second schedule appended to Section 163 A of the Motor Vehicle Act, therefore, compensation comes out to be Rs.2.25 lakhs. On this Hon'ble High Court has awarded Rs. 50,000/ on account of the loss of company of child and for pain & suffering, therefore, a total amount of Rs.2.75 lakh was awarded by the Hon'ble High Court of Delhi.
44.Although the present petition is filed under section 166 of the Motor Vehicles Act, however, considering the fact that deceased was a minor child aged about 06 months and was not earning any amount, guidance for the purposes of calculation of loss of dependency can be had from the second schedule appended to Section 163A of the Motor Vehicle Act, where "notional income" is provided, which has got the statutory recognition. Therefore, total loss of dependency will be Rs.2.25 lakhs as provided in the judgments of Hon'ble High Court of Delhi.
45. I therefore, award Rs. 2,25,000/ to the claimant on account of "loss of dependency".
Petition No. : 91/12, 98/12, 99/12 and 100/12 Page No. 21 of 28 22 LOVE & AFFECTION / LOSS TO ESTATE / FUNERAL EXPENSES :
46. In case titled "R. K. Malik Vs. Kiran Pal, III (2006) ACC 261", Hon'ble High Court have considered various heads under nonpecuniary damages for grant of compensation like loss of love and affection, loss to estate and funeral expenses etc. Hon'ble High Court after considering all these damages, had granted a sum of Rs.75,000/ towards "nonpecuniary damages" to the unfortunate parents who had lost their dear child in a road accident.
47. This amount of Rs.75,000/ awarded towards "nonpecuniary damages" by Hon'ble High Court, was upheld by Hon'ble Supreme Court in case titled "R. K. Malik V/s. Kiran Pal" reported as 2009 (8) Scale 451. The same amount was subsequently awarded by Hon'ble High Court in another case titled "Jitender Kumar & Anr. V/s. Oriental Insurance Company Limited & Anr." bearing M.A.C. Appeal Number 68/2009 decided on 31.07.2009 towards "nonpecuniary damages" after considering all the precedents relating to death of minor in road accidents.
48. The facts of the present case, also requires grant of similar compensation towards 'nonpecuniary damages' as awarded by Hon'ble High Court and Hon'ble Supreme Court in the above mentioned cases. Petition No. : 91/12, 98/12, 99/12 and 100/12 Page No. 22 of 28 23
49. In view of the observations made and law laid down by Hon'ble Apex Court, I award Rs. 75,000/ to the claimant towards "nonpecuniary damages". COMPENSATION TOWARDS FUTURE PROSPECTS :
50. As per law laid down by Hon'ble Apex Court in "R.K.Malik Vs. Kiran Pal, 2009 (8) Scale 451" it was held that claimants i.e. unfortunate parents who are survived by their dear child, who died in a road accident, are also entitled to compensation towards 'future prospects'. It was further held by Hon'ble Apex Court that the claimants are entitled to be compensated towards "future prospects" and were granted compensation of Rs.75,000/ towards future prospects of the children.
51. In view of law laid down by Hon'ble Apex Court in R.K. Malik Vs. Kiran Pal (Supra), I award a sum of Rs. 75,000/ to the claimants being parents of deceased Baby Vartika, towards compensation under the head of "future prospects".
52. The total compensation assessed is as follows :
MEDICAL EXPENSES : Rs. 8,100/
LOSS OF DEPENDENCY : Rs. 2,25,000/
NONPECUNIARY DAMAGES : Rs. 75,000/
FUTURE PROSPECTS : Rs. 75,000/
TOTAL : Rs. 3,83,100/ Petition No. : 91/12, 98/12, 99/12 and 100/12 Page No. 23 of 28 24 : L I AB I L I T Y :
53. As the offending vehicle was being driven by respondent no.1 therefore, primary liability to compensate the petitioners is that of respondent no. 1. As the offending vehicle was owned by respondent no. 2 therefore, he becomes vicariously liable to compensate the petitioners. It is an admitted position on record that the offending vehicle was insured with respondent no. 3. Therefore, respondent no. 3 becomes contractually liable to compensate the petitioners for the above mentioned amount to the extent of liability of the insured.
In the instant case no evidence has been brought by the Insurance Company to show that there was any breach of insurance policy by the Respondent no. 2 or the Respondent no.1 was not having Driving License.
54. Issue No. 2 is accordingly decided in favour of the petitioners and against the respondent no.3.
R E L I E F In Petition No. 91/12
55. In view of my findings on issues, I award a sum of Rs. 1,83,000/ (Rs. One Lac Eighty Three Thousand only) to the petitioner as compensation with interest @ 9% per annum from the date of filing of the petition till realisation of the amount.
Petition No. : 91/12, 98/12, 99/12 and 100/12 Page No. 24 of 28 25 In Petition No. 98/12
56. In view of my findings on issues, I award a sum of Rs. 97,300/ (Rs. Ninety Seven Thousand Three Hundred only) to the petitioner as compensation with interest @ 9% per annum from the date of filing of the petition till realisation of the amount.
In Petition No. 100/12
57. In view of my findings on issues, I award a sum of Rs. 1,37,500/ (Rs. One Lac Thirty Seven Thousand Five Hundred only) to the petitioner as compensation with interest @ 9% per annum from the date of filing of the petition till realisation of the amount.
In Petition No. 99/12
58. In view of my findings, I award Rs. 1,91,550/ each to the petitioners, along with interest @ 9% per annum from the date of filing the petition till realisation of the amount.
Out of this awarded amount, a sum of Rs. 1,50,000/ each be kept in the form of FDR in the name of the petitioners in the following phased manner :
1. Rs. 75,000/ for a period of 2 years.
2. Rs. 75,000/ for a period of 4 years.
Deposition of awarded amount with STATE BANK OF INDIA, Saket Court Branch, New Delhi.
Petition No. : 91/12, 98/12, 99/12 and 100/12 Page No. 25 of 28 26
59. In terms of the directions given by Hon'ble High Court in case titled "Rajesh Tyagi Vs. Jaibir Singh and Ors." bearing FAO number 842/2003 decided on 08.06.2009, UCO Bank/ State Bank of India has agreed to open a Special Fixed Deposit Account for the victims of road accidents.
60. As per orders of Hon'ble High Court in case titled " New India Assurance Co. Ltd Vs. Ganga Devi & Ors bearing MAC. App. 135/2008" as well as in another case titled as " Union of India V/s Nanisiri" bearing M.A.C. Appeal No. 682/2005 dated 13.01.2010, directions were given to the Claims Tribunal to deposit part of the awarded amount in fixed deposit in a phased manner depending upon the financial status and financial needs of the claimants.
61. In consonance to the idea by which part of the awarded amount is ordered to be kept in fixed deposit / savings account by Hon'ble High Court, Insurance Company is directed to deposit the awarded amount in favour of the claimants with State Bank of India, Saket Courts Complex Branch, against account of claimants.
within a period of 30 days from today, failing which respondent no. 3 Insurance Company shall be liable to pay future interest @ 12% per annum till realization (for the delayed period).
62. Upon the aforesaid amount being deposited, the State Bank of India, Saket Court Complex, New Delhi, is directed to keep the awarded amount in the Petition No. : 91/12, 98/12, 99/12 and 100/12 Page No. 26 of 28 27 "fixed deposit / saving account'' in the following manner:
(i) The interest on the fixed deposit be paid to the petitioners / claimants by Automatic Credit of interest of their saving bank accounts with State Bank of India, Saket Court Branch, New Delhi.
(ii) Withdrawal from the aforesaid account shall be permitted to claimants / petitioners after due verification and the Bank shall issue photo identity Card to claimants / petitioners to facilitate identity.
(iii) No cheque book be issued to claimants / petitioners without the permission of this Court.
(iv) The original fixed deposit receipts shall be retained by the Bank in safe custody. However, the original Pass Book shall be given to the claimants / petitioners alongwith the photocopy of the FDR's .
(v) The original fixed deposit receipts shall be handed over to claimants / petitioners at the end of the fixed deposit period.
(vi) No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the permission of this Court.
(vii)Half yearly statement of account be filed by the Bank in this Court.
(viii)On the request of claimants / petitioners, the Bank shall transfer the Savings Account to any other branch of State Bank of India, according to their convenience.
(ix) Claimants / petitioners shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit Account to Branch Manager, State Bank of India, Saket Courts Complex Branch, New Delhi.
DIRECTIONS FOR THE RESPONDENT NO.3
63. Respondent no. 3 is directed to file the compliance report of its having deposited the awarded amount with State Bank of India, Saket Court Branch in this tribunal within a period of 30 days from today. Petition No. : 91/12, 98/12, 99/12 and 100/12 Page No. 27 of 28 28
64. The Respondent no.3 shall intimate to the petitioners about its having deposited the cheques in favor of the petitioners in terms of the award, at the address of the petitioners mentioned at the title of the award, so as to facilitate them to withdraw the same.
65. Copy of this award / judgment be given to the claimants/petitioners who are directed to furnish the same to the Manager of State Bank of India, Saket Court Branch for necessary compliance after their having received the notice of the deposit of awarded amount from the Insurance company.
66. The case is now fixed for compliance by the insurance company for 11.10.2013.
Announced in the open court
on 10th Day of September, 2013 (SANJIV JAIN)
Presiding Officer : MACT02
South Distt. : Saket Courts
New Delhi : 10.09.2013
Petition No. : 91/12, 98/12, 99/12 and 100/12 Page No. 28 of 28