Delhi District Court
Sh. Bhim Ray @ Bhim Rai vs Sh. Raj Kumar S/O Sh. Umrao Singh on 26 May, 2016
IN THE COURT OF SH. RAJ PAUL SINGH TEJI:
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNAL :
(WEST-01):DELHI
Case No. : 534/14
1. Sh. Bhim Ray @ Bhim Rai
s/o Sh. Kamla Kant Rai
2. Smt. Neela Rai
w/o Sh. Bhim Ray @ Bhim Rai
F-6/458, Sultan Puri,
Delhi-110086
Permanent R/o Village Pachaura,
Post : Aghaila, P. S. Dhanarti,
District Siwan (Bihar)
.........Petitioners
Versus
1. Sh. Raj Kumar s/o Sh. Umrao Singh
R/o Village Gubhana, P. S. Bahadurgarh,
Tehsil: Jhajjar, Distt. Jhajjar (Haryana)(Driver)
2. M/s Satya Prkash & Bros. Pvt.Ltd.
A1-CC Colony, Rana Pratap Bagh,
Delhhli -110007 (owner)
3. The Oriental Insurance Co. Ltd.
Pankaj Plaz, Plot No.4, 2nd Floor, Sector-4,
Dwarka, New Delhi -110075 (insurer)
......... Respondents
Date of Institution: : 10/10/2014
Date of reserving order/judgment : 16/05/2016.
Date of pronouncement: : 26/05/2016
Suit No. 534/14 Page no. 1/13
AWARD
1. This judgment -cum- award shall decide the petition under Section 166 and 140 of Motor Vehicle Act 1988, as amended up to date (hereinafter referred as Act) filed by petitioners for grant of compensation for the death of Late Sh. Ayush Kumar in the road vehicular accident.
2. Brief facts of the case of the petitioners are that on 12/05/2014 when the deceased was going towards his work place at Noida(U.P) from his residence on car bearing registration No. H-55-HT-4260. It is further stated that at about 11.45 a.m when his car reached at Outer Ring Road, near Bhera Enclave Underpass, Paschim Vihar, New Delhi , an offending vehicle i.e. TATA Dumper bearing registration no. HR-55-H-6541 which was being parked on the road by its driver/ respondent no.1 negligently, recklessly, illegally wrongfully, without proper look out thereby violating traffic rules and regulations or without indicator or signals to the vehicles coming from behind. Resultantly, the car of the petitioner dashed against the parked offending vehicle and caused fatal injuries to the deceased. The petitioners have claimed a total sum of Rs. 30,00,000/- on account of compensation.
3. Written statement has been filed by the respondents No.1 & 2 wherein they categorically denied the rash and negligent aspect and denied the contents of the petitions. They have taken the defence that deceased himself was rash and negligent while driving his vehicle. They have further stated that the deceased was not holding driving license and was also under the influence of alcohol at the time of accident.
4. Written statement has been filed by respondent no.3, insurance company wherein it was admitted that the offending vehicle was insured with it as on the date and time of accident but denied the other contents of the petition. The insurance company has taken the defence that deceased himself rash and negligent at the time of accident. The deceased was also not Suit No. 534/14 Page no. 2/13 holding driving license and was under the influence of alcohol at the time of the accident.
5. On the pleadings of the parties following issues were framed by this Tribunal on 07/09/2015,
1.Whether the deceased Sh. Ayush Kumar suffered fatal injuries while travelling in Car No. HR-55 HT- 4260, in an accident that took place on 12/05/2014 at about 11.45 p.m due to rash and negligent driving of respondent no.1/ driver of the offending vehicle bearing No HR-55-H-6541, owned by respondent No.2 and insured with respondent No.3? OPP
2. Whether the petitioners are entitled for compensation? If so, to what amount and from whom?
3. Relief.
6. In order to establish its claim, the petitioner No.1 has examined himself as PW-1.
7. The respondent No. 1 has examined himself as R1W1 in his defence.
8. The respondent No.2 has examined Sh. Bhim Singh as R2W1 and Mr. Dev Kumar as R2W2 in his defence.
9. Respondent No. 3 / insurance company has also examined Mr. Ankur in its defence.
10. I have gone through the testimony of the witnesses and carefully perused the record. I have heard the arguments addressed by the counsel for the rival parties My findings on various issues are as under :-
ISSUE NO. 111. Since the present petition is under Section 166 of M V Act, it was the bounden duty of the petitioner to prove that the offending vehicle was Suit No. 534/14 Page no. 3/13 wrongly parked without proper indicator or signal on the road by the respondent No.1 at the time of accident.
12. Ld. Counsel for insurer argued that no negligence has been proved by the petitioners on record. Ld counsel for respondent No. 1 & 2 have also argued on similar contention raised by the insurer. The deceased has also contributed to the negligence as he was himself rash and negligent driving at the time of accident. He has further argued that deceased was not holding any driving license at the time of accident. He has further argued that the deceased was under influence of alcohol at the time of accident. In absence of proving of negligence on the part of the driver of the offending vehicle, the present case is liable to be dismissed.
13. Ld. Counsel for petitioners has argued that since the the charge sheet was filed against the respondent No.1 for the offence u/s 337/304 IPC, no contributory is made out on the part of deceased.
14. I have considered the submissions of the rival parties and gone through the record.
15. So far as, defence raised by the insurer regarding deceased was under influence of alcohol and was driving the vehicle without Driving License at the time of accident, , I am being guided by the judgment of Hon'ble Supreme Court of India in case titled as ' National Insurance Co. Ltd Vs. Swaran Singh & Ors, reported in 2004 ACJ 1 has held in para '102' that insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches of the conditions of policy are so fundamental as are found to have contributed to the cause of the accident. It was further held that Tribunals in interpreting the policy conditions would apply 'the rule of main purpose' and the concept of 'fundamental breach' to allow defences available to the insurer u/s 149(2) of the Act.
16. In the present matter the insurer failed to prove the fact that the said breach was so fundamental in nature as was found to have Suit No. 534/14 Page no. 4/13 contributed to the very cause of action in terms of the judgment of Hon'ble Supreme Court of India in Swaran Singh case(supra). This being a benevolent legislation and rules of the main purpose will apply.
17. On the other hand, Ld. Counsel for petitioners submits that there is no mention of consumption of alcohol in the MLC of deceased as well as post mortem report of deceased. On this aspect, I am being guided by the judgment MAPP No. 1111/2011 decided on 06/11/12 in case titled as 'Daya Shanker Vs Dheeraj Kumar & Ors' passed by Hon'ble Mr. Justice G. P. Mittal wherein it has been held that where no test to measure of quantity of alcohol in the body of the deceased was done by the doctor, the Claim Tribunal cannot be justified in holding that the deceased was under influence of liquor or thus he contributed the very cause of accident. Hence, in view of the above discussion, both the pleas raised by the insurance company are hereby rejected.
18. Now, the question of contributory negligence arises when there has been some act or omission on the claimant's part, which has materially contributed to the damage caused , and is of such a nature that it may properly be described as' negligence'. Negligence ordinarily means breach of a legal duty to care, but when used in the expression " contributory negligence", it does not mean breach of any duty. It only means the failure by a person to use reasonable care for the safety of either himself or his property, so that he becomes blameworthy in part as an authority of his own wrong"
19. Perusal of the contents of the FIR reveals that the offending vehicle No. HR-55H-6541 was stationed on the left side of the road without barricading and without signal regarding parking of the same. The photographs placed on record by the police in DAR shows the reflectors affixed on the offending vehicle but the said reflectors shows reflection /shines of the light of the other vehicle. The offending vehicle does not reflect any electric indicators on the back side or sides of the vehicle. The reflectors are Suit No. 534/14 Page no. 5/13 deceptive and are not clearly indicating the position, size and movement of the offending truck. Thus, the driver of the offending vehicle cannot escape culpable negligence on his part as he was primarily responsible for the accident. Further, the photographs placed on record reveal that the vehicle of deceased was badly damaged . This shows that the deceased was also at a very high speed at the time of accident. Had the deceased been cautious, he could have averted the gravity of the accident.
20. After hearing the parties; perusing the DAR and evidence adduced on record, I hold that deceased died due to negligent act of respondent No.1 while parking the offending vehicle on the road without any barricading ; proper indicator or proper signal and respondent No.1 is liable for causing the accident in the present case to the extent of 75% and deceased himself contributed to this accident to the extent of 25%.
21. However, in the present case, the police have filed the Detailed Accident Report (DAR)on record pertaining to case FIR etc. bearing No. 376/14; P. S.Paschim Vihar u/s 337/304-A IPC.
22 On the aspect of 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 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 on 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.
Suit No. 534/14 Page no. 6/13Further, in Kaushnumma Beum 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 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 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 had held as under:
"The Claims Tribunal was conscious of the fact that negligence is a sine qua non to a Petition under Section 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."
In the light of the law discussed above and after going through all the documents i.e. FIR ; site plan; seizure memo of RC; seizure memo of DL Suit No. 534/14 Page no. 7/13 Seizure memo of both the involved vehicles; mechanical inspection report of the vehicles ; MLC and post mortem report of the deceased; ; RC; insurance; permit and fitness of the offending vehicle as well as documents filed by the petitioners, as a whole, it is clear that respondent no. 1 had parked the offending vehicle negligently and without indicator or signal on the road and caused fatal injuries to the deceased.
The issue No:1 ,therefore, stands decided in favour of the petitioner and against the respondent No. 1.
ISSUE NO. 2 / COMPENSATION :
23. PW-1 in his testimony has proved the copy of his passport Ex. PW1/1. He has also proved copy of PAN Card of petitioner No.2/ mother of deceased which suggests her date of birth as 05/03/1974. The date of accident is 13/05/2014. Accordingly, the mother of the deceased was about 37 years of age as on the date of accident.
24. PW-1 has also proved the Certificate of Secondary School Examination 2009 and Mark-sheet which suggests the date of birth of deceased as 20/08/1994. Accordingly, the deceased was about 20 years as on the date of accident. PW-1 has also proved the admit card of 12 th class of deceased Ex PW1/5; and mark- sheet of 12 th class of deceased Ex PW1/6. PW-1 has also deposed that he had incurred treatment expenses in the hospital on deceased before his death. He has filed the verified bill to the tune of Rs. 73,035./- vide Ex. PW1/7. He has also proved the DAR Ex. PW1/8(colly.).
25. PW-1 in his testimony has deposed that deceased was in private job and was earning Rs. 15,000/- per month but no income proof has been filed or proved on record. The petitioners have not called any witness from the employer of deceased to prove the income of the deceased. Hence, considering the certificate of matriculation and mark-sheet of 12 th of deceased, Suit No. 534/14 Page no. 8/13 the income of the deceased can very well be assessed on the basis of the chart available in the Minimum Wages Act for matriculate. The date of accident was 12/05/2014 on which the minimum wages for matriculate person was Rs. 10,374/-.
26. Ld. Counsel for petitioner requested for balancing the income of the victim on the basis of inflation trends and requested that 50% increase be made in the income of the victim on the basis of judgment of Hon'ble Supreme Court of India in "Rajesh & Ors. Vs. Rajbir Singh & Ors 2013(6) Scale 563 and also in terms of judgment of Munna Lal Jain & Anr. Vs. Vipin Kumar Sharma & Ors, reported in II (2015) ACC 806 (SC).
27. Ld. Counsel for petitioner requested for balancing the income of the victim on the basis of inflation trends and requested that 50% increase be made in the income of the victim on the basis of judgment of Hon'ble Supreme Court of India in "Rajesh & Ors. Vs. Rajbir Singh & Ors 2013(6) Scale 563, but per contra Ld. counsel for the insurer objected to same and placed reliance of Hon'ble High Court of Delhi in 'Taslim Parvin & Anr Vs. Jugendra Singh & Ors' in MAC. APP No.88/16 & CM No. 3172/2016 decided on 29/01/2016 by Hon'ble Mr. Justice R.K. Gauba wherein it has been held as under:
"5. The law is well settled that in case of compensation on account of death, loss of dependency is to be computed by adopting the multiplier having regard to the age of the deceased or the claim whichever is higher[ U.P. State Road Transport Corporation and Ors vs. Trilok Chandra and Ors, (1996) 4 SCC 362 and General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Mrs. Susamma Thomas & ors, (1994) 2SCC 176]
6. In the case reported as Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr, (2009) 6SCC 121, Supreme Court, inter-alia, ruled that the element of future prospects of increase in income will not be granted in cases where the deceased was " self employed" or was working on a "fixed salary". Though this view as affirmed by a bench of three Hon'ble Judges in Reshma Suit No. 534/14 Page no. 9/13 Kumari & Ors Vs. Madan Mohan & Anr, (2013) 9SCC 65, on account of divergence of views, as arising from the ruling in Rajesh & Ors vs. Rajbir & Ors, (2013)9 SCC 54 the issue was later referred to a larger bench, inter alia by order dated 02/07/2014 in National Insurance Company Ltd. Vs. Pushpa & ors, (2015) 9 SCC 166.
7. Against the above back drop by judgment dated 22/01/2016 passed in MAC Appeal No. 956/2012(Sunil Kumar Vs. Pyar Mohd. ), the court has found it proper to follow the view taken earlier by a learned single judge in MAC Apeal no. 189/2014 (HDFC Ergo General Insurance Co. ltd. v. Smt. Lalta Devi & ors) decided on 12.01.2015, presently taking the decision in Reshma Kumari (supra) as the binding precedent, till such time the law on the subject of future prospects for those who are " self
-employed" or engaged in gainful employment at a " fixed-
salary" is clarified by a larger bench of the Supreme Court"
After going through the facts and circumstances of the present case and the aforesaid case law laid down, I am not inclined to grant future prospects on the income of the petitioner in this case.
28. As per the judgment of Hon'ble Supreme Court of India in 'Sarla Verma & Ors. Vs. DTC & Anr. decided on 15.4.2009 in C.A. No. 3483/08' 50% of the income of the deceased is directed to be deducted towards personal and living expenses as the deceased was bachelor and has left behind two dependents as per aforesaid discussion. After deducting one- half towards personal expenses, the monthly loss of dependency comes out to be Rs. 10,374/- less Rs. 5187/-. = Rs. 5187/-.
29. For the purpose of determining the multiplier in case of death of bachelor, I am being guided by the judgment in Taslim Parvin & Anr (supra), wherein the age of the mother of the deceased is considered in case of death of bachelor for the multiplier.
30. The age of the mother of deceased has already been determined as about 37 years as aforesaid as on the date of accident. In view of the aforesaid discussion, the age of the mother of deceased is considered in case of death of bachelor in terms of aforesaid judgment Taslim Parvin & Anr (supra) and the appropriate multiplier applicable is '15', as mentioned in Suit No. 534/14 Page no. 10/13 Sarla Verma's judgment (Supra). Hence, the total loss of dependency comes out to ( Rs.5187 -x 12 x 15 )= Rs. 9,33,660/-.
Reimbursement of medical bills incurred on deceased before his death in the hospital.
31. PW-1 in his testimony has deposed that he had incurred Rs. 73,035/- on deceased for his treatment in the hospital. IO has placed on record the verified medical bills in DAR vide Ex. PW1/7. Hence, I hereby grant compensation of Rs 73,035/- towards reimbursement of medical bills.
32. Regarding loss of love and affection, I am being guided by the judgment of Hon'ble High Court of Delhi in Rajesh & ors Vs. Rajbir Singh & ors,(2013) 9SCC 54 and with the inflation, the petitioners are entitled of Rs. 1,00,000/- towards love and affection. Accordingly, I award Rs. 1,00,000/- towards love and affection; Rs. 25,000/- towards funeral charges & Rs. 10,000/- towards loss of estate. Therefore, in total, I hereby award a sum of Rs. 11,41,695/-( Rs. 9,33,660/- + Rs. 73,035/- + Rs. 1,35,000/-) in favour of the petitioners and against the respondents.
33. As already discussed above, the respondent No.1 is liable for causing the accident and causing fatal injuries to the deceased, to the extent of 75% and the deceased himself had contributed to this accident to the extent of 25%. Therefore, the petitioners are hereby grant compensation for a sum of Rs. 8,56,271.25/- rounded off to Rs. 8,56,271/-= (Rs. 11,41,695/- x 75%) R E L I EF / ISSUE NO.3
34. I award Rs. 8,56,271/- (Rupees Eight Lacs Fifty Six Thousand Two Hundred Seventy One Only) as compensation with interest at the rate of 9% per annum including interim award, if any from the date of filing the petition i.e. 10/10/2014 (DAR),till the notice under Order XXI Rule 1 is given by the insurance company, in favour of the petitioner and against the Suit No. 534/14 Page no. 11/13 respondents on account of their liability being joint and several. The petitioner No.1 shall have 40% share in the award amount and petitioner No. 2 shall have 60% share in the award amount.
35. As per the guidelines issued by Hon'ble Supreme Court of India G.M Kerala State Road Transport Corporation v/s S.Susamma Thomas (1994) 2 SCC 176 in order to avoid the money being frittered away, 50 % of the amount awarded to each petitioners shall be kept in 5 FDRs of almost equal amount for a period of 1,2,3,4 & 5 years. No loan or advance shall be allowed against the said fixed deposit.
APPORTIONMENT OF LIABILITY
36. The respondent No: 3 being the insurer, its liability is joint and several with other respondents. Accordingly, respondent No. 3/ insurance company is directed to deposit the award amount within a period of 30 days under the intimation to this court. In case of any delay, it shall be liable to pay interest at a rate of 12% per annum for the period of delay.
37. The Hon'ble High Court of Delhi in its latest judgment in MACA 682/05 dated 13.1.2010 'Union of India Vs. Nanisiri' have laid certain guidelines regarding depositing of award amount. In terms of the order of the Hon'ble High Court of Delhi the insurance company shall deposit the award amount in the State Bank of India, Tis Hazari Branch in the name of the petitioner/ petitioners in terms of the award and shall file the compliance report. It is made clear that at the time of the deposit of the award amount with the bank, the insurance company shall specifically mention the suit no. of the case, title of the case as well as date of decision with the name of court on the back side of the cheque. The insurance company shall also file the attested copy of the award attested by its own officer to the bank at the time of deposit of the amount with the bank. The copy of this award be given to the insurance company as well as petitioner free of cost. The petitioners shall approach the State Bank of India, Tis Hazari Branch for opening the account.
Suit No. 534/14 Page no. 12/1338. The Manager of the Bank is directed to comply the award. The Bank Manager is directed to release the award amount to the petitioner. However, in case the amount is ordered to be kept in the FDR, the said amount should not be released unless the FDR is matured.
39. The parties are at liberty to contact in State Bank of India through its nodal officer Sh. Naresh Kumar Garg, Deputy Manger, Tis Hazari Branch,Delhi (Mb No: 9560191924 and Tel. No. 011-23917910) for their convenience.
File be consigned to Record Room.
A separate file be prepared for compliance report and put up the same on 26/07/2016.
Announced in the open court
On 26th of May,2016 ( RAJ PAUL SINGH TEJI )
Judge, MACT (WEST-01)
Delhi (26/05/2016)
Suit No. 534/14 Page no. 13/13
Suit No. 534/14
16/05/2016
Present: None
Clarification sought.
Put up for orders on 26/05/2016.
( RAJ PAUL SINGH TEJI )
Judge, MACT (WEST-01)
Delhi 16/05/2016
26/05/2016
Present: None
Judgment is announced separately.
File be consigned to Record Room.
A separate file be prepared for compliance report and put up the same on 26/07/2016 ( RAJ PAUL SINGH TEJI ) Judge, MACT (WEST-01) Delhi 26/05/2016 Suit No. 534/14 Page no. 14/13