Delhi District Court
Tarsem Kaur & Ors. vs . P Net Solutions (P) Ltd. & Ors. on 9 January, 2018
Tarsem Kaur & Ors. Vs. P Net Solutions (P) Ltd. & Ors.
IN THE COURT OF SH. PAWAN KUMAR JAIN,
JUDGE, MACT-1 (CENTRAL), THC, DELHI.
Suit No. 520/10
MACT No. 357624/16
Unique Case ID No. DLCT01-000328-2010
1. Smt. Tarsem Kaur
S/o Sh. Nanak Singh
2. Sh. Nanak Singh
S/o Late Sh. Mohan Singh
Both Resident of:
A-52, Chander Vihar,
Near Sunday Market,
Behind Cold Depot,
Nilothi Extension,
Nangloi, Delhi110041.
Second Address:
Flat No. 105, Beldihlake,
Jamshedpur, Post Bistupur,
District Singhbhum (Jharkhand)-831001.
........Petitioners
VERSUS
MACT No. 357624/16 (Old Suit No. 520/11) Page No. 1 of 21
Tarsem Kaur & Ors. Vs. P Net Solutions (P) Ltd. & Ors.
1. P Net Solutions (P) Ltd.
23, Block-B, Rohini,
DDA,Market New Delhi.
Second Address:
F-23, Apora Shopper Park,
Shakti Khaud-I,
Indira Puram, Ghaziabad, U.P.
...........Respondent No.1
(Owner of vehicle no. DL-4CAD-4959)
2. IFFCO-TOKIO General Insurance Company Ltd.
503, 5th Floor, Aggarwal Millennium Tower, Netaji Subash Place, Pitampura, New Delhi-110034.
...........Respondent No.2 (Insurer of vehicle no. DL-4CAD-4959)
3. Sh. Nizar Khan S/o Sh. ISA Mohammad, R/o Village & Post Ranoli, Tehsil Kishangarh, Distt. Alwar Rajasthan.
.......Respondent No.3 (Driver of vehicle no. HR-47D-6492)
4. Sh. Prakash Chand Saini, S/o Sh. Tara Chand Saini, R/o Dhanisaisa Wali, Dabala Road, Kotputli, Jaipur, Rajasthan.
.......Respondent No.4 (Owner of vehicle no. HR-47D-6492) MACT No. 357624/16 (Old Suit No. 520/11) Page No. 2 of 21 Tarsem Kaur & Ors. Vs. P Net Solutions (P) Ltd. & Ors.
5. Royal Sundaram Alliance Insurance Co. Ltd.
1505, 15th Floor, Ambadeep Building, Connaught Place, New Delhi .......Respondent No.5 (Insurer of Vehicle no. HR-47D-6492) Date of filing of Claim Petition :25.10.2010 Arguments heard on :08.12.2017 Date of passing of Award :09.01.2018 Present: Sh. S.K. Singh, Advocate, counsel for petitioners Respondent No.1 , 3 & 4 are ex-parate Sh. V.K. Gupta, Advocate, counsel for respondent No. 2.
Sh. Amit Negi, Advocate Counsel for respondent no. 5.
AWARD:
1. Present claim suit has been preferred by the petitioners under Section 166 & 140 of the Motor Vehicle Act, 1988 (in short MV Act) claiming compensation of ` 50 lac in respect of fatal injuries caused to the deceased Gurmeet Singh in a motor vehicular accident that had taken place on April 13, 2009 within jurisdiction of PS Palwal, Sadar, Fardiabad, Haryana.
MACT No. 357624/16 (Old Suit No. 520/11) Page No. 3 of 21 Tarsem Kaur & Ors. Vs. P Net Solutions (P) Ltd. & Ors.
(i) Though the accident had not taken place within the jurisdiction of this Tribunal, yet claim suit has been filed before this Tribunal as petitioners were residing in Delhi.
Besides that respondent no. 2 & 5 were also working for gain in Delhi at the time of accident.
2. Facts in brief as emerged from the claim petition are that on April 13, 2009, deceased (Gurmeet Singh) was going in a car bearing registration no. DL-4CAD-4959 alongwith Deepanker Malik, Dishant and Bhuwan and the car was being driven by Deepanker Malik. It was alleged that at about 6.00 a.m when their car reached village Sarai, G.T Road within the jurisdiction of PS Palwal, their car rammed into Truck Trolla bearing registration no. HR-47D-6492 as the said Trolla was parked in the middle of road without any signal and indication. It was alleged that accident had taken place due to composite negligence of driver of the truck trolla as he parked his Trolla in the middle of road without any signal or indication as well as negligence of the car driver as he failed to notice the said Trolla. It was alleged that due to collision, all occupants except Bhuwan sustained fatal injuries whereas Bhuwan sustained serious injuries. In this regard an FIR under Section 283/337/304-A IPC was got registered at PS Palwal, Faridabad, Haryana.
(i) It was alleged that car was being driver by Deepanker. It was further alleged that car was registered in the name of respondent no. 1 and it was insured with respondent MACT No. 357624/16 (Old Suit No. 520/11) Page No. 4 of 21 Tarsem Kaur & Ors. Vs. P Net Solutions (P) Ltd. & Ors.
no. 2. Truck Trolla was being driven by respondent no. 3 and registered in the name of respondent no. 4 whereas it was insured with respondent no. 5.
3. All the respondents contested the claim suit by filing their separate written statement.
(i) Respondent no. 1 admitted that car was registered in its name and it was duly insured with respondent no. 2. It was submitted that since accident had taken place due to the negligence of driver of Truck Trolla, respondent No.1 is not liable to pay any compensation.
(ii) Respondent no. 2 admitted that the car was duly insured with it, but took the plea that since accident had taken place due to the negligence of truck driver, insurance company is not liable to pay any compensation. It was submitted that FIR was lodged against the driver of truck only.
(iii) Respondent no. 3 in his written statement submitted that accident had taken place due to rashness and negligence of the car driver as he hit in the stationary Trolla, which was parked on the side of road with proper signal and indication. It was submitted that vehicle was duly insured with respondent no. 5.
(iv) Respondent no. 4 admitted that Trolla was duly registered in his name, but submitted that Trolla was duly MACT No. 357624/16 (Old Suit No. 520/11) Page No. 5 of 21 Tarsem Kaur & Ors. Vs. P Net Solutions (P) Ltd. & Ors.
insured with respondent no. 5. It was further submitted that since accident had taken place due to rashness and negligence of car driver, he is not liable to pay any compensation.
(v) Respondent no. 5 admitted that Truck Trolla was insured with it, but took the plea that since accident had taken place due to rashness and negligence of car driver, insurance company is not liable to pay any compensation.
4. On the basis of pleadings of parties, vide order dated February 27, 2012, following issues were framed:-
(i) Whether the deceased Sh. Gurmeet Singh had died due to injuries sustained by him in an accident which took place on 13.04.2009 within the jurisdiction of PS Palwal, Sadar, Faridabad due to rash and negligent driving of driver of vehicle bearing registration No. DL-4CAD-4959 which owned by Respondent No.1 and due to negligent parking of vehicle (Truck Trolla) bearing registration No. HR-47D-6492 by respondent No.1?
(ii) Whether the petitioners are entitled to any compensation, if so, for what amount and from whom?
(iii) Relief.
MACT No. 357624/16 (Old Suit No. 520/11) Page No. 6 of 21 Tarsem Kaur & Ors. Vs. P Net Solutions (P) Ltd. & Ors.
5. In order to prove their claim, petitioners examined following witnesses:-
PW1 : Sh. Nanak Singh, father of deceased PW2 : Smt. Tarsem Kaur, mother of deceased PW3 : Sh. Neeraj Garg, eye witness
(i). In rebuttal, respondents did not lead any evidence.
(ii) Vide order dated August 2, 2017, respondent No.1, 3, 4 & 5 were processed ex-parte. Ex-parate order qua respondent No.5 was set aside on September 11, 2017.
6. I have heard rival submissions advanced by counsel for petitioners and respondent No. 2, perused the record carefully and gave my thoughtful consideration to their contentions.
7. My issue-wise findings are as under:-
Issue No. 1:
Whether the deceased Sh. Gurmeet Singh had died due to injuries sustained by him in an accident which took place on 13.04.2009 within the jurisdiction of PS Palwal, Sadar, Faridabad due to rash and negligent driving of driver of vehicle bearing registration No. DL-4CAD-4959 which owned by Respondent MACT No. 357624/16 (Old Suit No. 520/11) Page No. 7 of 21 Tarsem Kaur & Ors. Vs. P Net Solutions (P) Ltd. & Ors.
No.1 and due to negligent parking of vehicle (Truck Trolla) bearing registration No. HR-47D-6492 by respondent No.1?
FINDING:-
8. Learned counsel appearing for the petitioners contended that the accident had taken place due to rash and negligence of truck driver as he parked the truck in the middle of road without any signal/indication, consequently, car of the deceased, which was coming from behind, rammed in the rear portion of the truck. Due to collusion, three persons including son of the petitioners died in the said accident.
(i) Though none appeared on behalf of respondent No.5 (insurer of the truck), yet from the pleadings, it becomes clear that respondent no.5 took the plea that the accident had taken place due to the negligence of car driver as he hit in the stationary truck.
9. It is undisputed fact that the accident had taken place on the GT Road near village Sarai, Palwal, Haryana. It is also undisputed fact that the car hit in the stationary truck. PW3 Neeraj Garg in his examination-in-chief testified that he and his friend Harish Malik were going to Agra from Delhi in their car whereas deceased and his friends were going to Agra in their separate car. He testified that at about 6 AM when they reached near Toll Barrier Palwal Village Sarai Khatela, car of deceased rammed in the offending truck, which MACT No. 357624/16 (Old Suit No. 520/11) Page No. 8 of 21 Tarsem Kaur & Ors. Vs. P Net Solutions (P) Ltd. & Ors.
was parked in the middle of road without any signal or indicator. Due to collusion, car was badly damaged. He further testified that the accident had taken place due to the rashness and negligence of the driver of truck. In the cross-examination conducted on behalf of insurer of car, he testified that the accident had taken place due to the sole negligence of truck driver. However, in the cross-examination conducted on behalf of insurer of the truck, he testified that the traffic was normal on the road and the distance between his car and the car of victim was about 25 ft. He denied the suggestion that the accident had taken place due to the negligence of driver of the car as he was driving the car at excessive speed.
(i) No doubt, PW3 Neeraj Garg deposed that the accident had taken place due to the sole negligence of truck driver, but I am of the view that his testimony to that extent is not trustworthy. Admittedly, the car was coming from behind and accident had taken place at about 6 AM in the month of April 2009. In the month of April, generally visibility remains quite good or if the visibility was poor, it was the duty of driver of the car to drive the vehicle at slow speed. Admittedly, three persons died in the accident. This itself shows that the car must be driven at excessive speed otherwise the impact of collision would not be so severe. Since the car driver failed to notice the truck, it cannot be said that there was no negligence on the part of car driver. Similarly, there was negligence on the part of driver of the truck as he parked the truck in the middle of road without taking any due precaution. Further, during MACT No. 357624/16 (Old Suit No. 520/11) Page No. 9 of 21 Tarsem Kaur & Ors. Vs. P Net Solutions (P) Ltd. & Ors.
inquiry, he failed to explain the circumstances, which compelled him to park his truck in the middle of road. Assuming for the sake of arguments that he parked the truck in the middle of road due to sudden break down, but it was his duty to take immediate precautions to guide the vehicles coming from behind that his truck had broken down, but he failed to do. In these circumstances, I am of the considered opinion that there was a negligence on the part of truck driver as well as car driver, and it is a case of composite negligence.
10. Since the negligence on the part of truck driver was graver than that of the driver of car, I am of the view that owner, driver and insurer of the truck shall be liable to bear 75% of the liability whereas owner and insurer of the car shall be liable to bear 25% of the liability.
11. In view of the above, Issue No.1 is decided in favour of the petitioners and against the respondents.
Issue No.2 Whether the petitioners are entitled to any compensation, if so, for what amount and from whom?
12. Before proceeding further, I deem it appropriate to refer the judgment titled National Insurance Company Ltd. vs. Pranay Sethi & ors. SLP (Civil) No. 25590 of 2014 decided by the Constitution Bench of MACT No. 357624/16 (Old Suit No. 520/11) Page No. 10 of 21 Tarsem Kaur & Ors. Vs. P Net Solutions (P) Ltd. & Ors.
Supreme Court on October 30, 2017. Hon`ble Bench reconsidered all the previous judgments relating to just compensation under Motor Vehicle Act including Sarla Verma & ors. vs. DTC & another, 2009 (6) SCC 121; Reshma Kumari & others vs. Madan Mohan & anr (2013) 9 SCC 65 and Rajesh Tyagi & others vs. Rajbir Singh & ors. (2013) 9 SCC 54.
(i) After analyzing all the precedents, Hon`ble Bench held as under:-
61. In view of the aforesaid analysis, we proceed to record our conclusions:-
(i) The two-Judge Bench in Santosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench.
(ii) As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent.
(iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made.
The addition should be 30%, if the age MACT No. 357624/16 (Old Suit No. 520/11) Page No. 11 of 21 Tarsem Kaur & Ors. Vs. P Net Solutions (P) Ltd. & Ors.
of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.
(iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.
(v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced herein-
before.
(vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment.
(vii) The age of the deceased should be the basis for applying the multiplier.
(viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be ` 15,000/-, ` 40,000/- and ` 15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years.
MACT No. 357624/16 (Old Suit No. 520/11) Page No. 12 of 21 Tarsem Kaur & Ors. Vs. P Net Solutions (P) Ltd. & Ors.
(i) Now, I proceed to examine the facts of the case at hand.
Income of Deceased (Gurmeet):
(i) PW1 testified that his son was working in a private company and was earning ` 18,000/- per month. The job offer letter is Ex. PW2/A (colly) and the salary slip is part of Ex. PW2/A. Perusal of the Ex. PW2/A, it is established that he was offered a job of Sr. Executive on the monthly salary of ` 15,387/- plus performance link incentives upto ` 7,500/- per month and his joining date was January 28, 2008. The said offer was made by NIIT Smart Serve Ltd. As per salary slip, Gurmeet Singh was working in M/s Core BPO (India) Pvt. Ltd.
and he was drawing salary of ` 17,500/- per month. Since there is no evidence on record that he had joined the service with NIIT Smartserve Ltd., his income is assessed at ` 17,500/- per month. Accordingly, his annual income is assessed at ` 2,10,000/-.
Addition towards Future Prospects:-
(i) Since there is nothing on record that he was a permanent employee, for the purpose of computation of just compensation, it is considered that he was working on the fixed salary.
MACT No. 357624/16 (Old Suit No. 520/11) Page No. 13 of 21 Tarsem Kaur & Ors. Vs. P Net Solutions (P) Ltd. & Ors.
(ii) Since deceased was below 40 years old at the time of his death, in view of the law laid down in Praney Sethi case (supra), petitioners are entitled for 40% addition towards future prospects.
Selection of multiplier:
(i) As per the claim petition, deceased was 24 years old at the time of his death and same is corroborated from the postmortem report. Accordingly, in view of law laid down in Sarla Verma case (supra) and approved by the Apex Court in Pranay Sethi's case (supra), multiplier of 18 shall be apply in this matter.
Deduction towards personal and living expenses of the deceased:-
(i). Since deceased was unmarried, one half of the income is liable to be deducted towards personal and living expenses.
Loss of income:-
(i) In view of the above, loss of income is calculated as under:
MACT No. 357624/16 (Old Suit No. 520/11) Page No. 14 of 21 Tarsem Kaur & Ors. Vs. P Net Solutions (P) Ltd. & Ors.
NAME OF THE HEAD AMOUNT
(IN `)
Annual Income of deceased 2,10,000/-
40% addition of towards future prospects 84,000/-
Total 2,94,000
Less 1/2 deduction towards personal and 1,47,000/-
living expenses
Total 1,47,000/-
Selection of multiplier 18
Total loss of income 26,46,000
13. Compensation under non-pecuniary heads:-
(i) In view of the law laid down in Pranay Sethi's case (supra), a sum of ` 15,000/- is awarded towards loss of estate and ` 15,000/- is awarded towards funeral expenses. In total ` 30,000/- is awarded to the petitioners under the above said two heads.
(ii) Since, interest @ 9% per annum was awarded by the Apex Court in Municipal Corporation of Delhi vs. Association of Victims of Uphaar Tragedy, 2012 ACJ 48 (SC), it is held that claimants shall be entitled to interest @ 9% per annum from the date of filing of claim petition i.e. October 25, 2010 till realization of the amount.
MACT No. 357624/16 (Old Suit No. 520/11) Page No. 15 of 21 Tarsem Kaur & Ors. Vs. P Net Solutions (P) Ltd. & Ors.
(iii) Accordingly, claimants are entitled to compensation in respect of the death of deceased as under:
NAME OF THE HEAD AMOUNT
(IN `)
Loss of Income 26,46,000
Loss of estate 15,000
Funeral expenses 15,000
Total 26,76,000
(Rupees Twenty Six Lac And Seventy
Six Thousands Only)
(iv) The claimants shall also be entitled to
interest @ 9% per annum from the date of filing of claim petition i.e. October 25, 2010 till realization of the amount.
Aportionment of the Award:
14. Since petitioners are the parents of the deceased, both shall get 50% each of the award amount.
Name of the Percentage of Actual amount claimant award amount (In `) Tarsem Kaur 50% 13,38,000 Nanak Singh 50% 13,38,000
(ii) In view of the statement of petitioner No.1 recorded in compliance of Clause 26 of FAO No. 842 of 2003 MACT No. 357624/16 (Old Suit No. 520/11) Page No. 16 of 21 Tarsem Kaur & Ors. Vs. P Net Solutions (P) Ltd. & Ors.
decided by Hon`ble High Court of Delhi on December 12, 2014, a sum of ` 3,38,000/- each plus entire interest be released to petitioner No. 1 & 2 and the balance amount of their share i.e. ` 10 lac each, in terms of the directions contained in FAO No. 842/2003 dated December 15, 2017, shall be put in 10 fixed deposits in the name of petitioners/claimants in a nationalized bank of equal amount ` 1 lac each for a period of six months, one year, one and a half year, two years and so on in their respective names. Besides the above said amount, amount of FDRs on maturity, shall automatically be transferred in their saving account maintained in a nationalized bank near the place of their residence with- out the facility of cheque book and ATM. It is clarified that the amount shall be released to the petitioners only on submitting the copy of passbook of such saving account with endorsement of the bank that no cheque book facility and ATM has been issued or if has been issued, same has been withdrawn and same shall not be issued without the prior permission of this Tribunal.
15. The above FDRs shall be prepared with the following conditions as enumerated by the Hon`ble High Court in MAC Appeal No. 422/2009, titled Sobat Singh vs. Ramesh Chandra Gupta & ors and FAO No. 842/2003 Rajesh Tyagi & ors vs. Jaivir Singh & ors decided on December 15, 2017:-
MACT No. 357624/16 (Old Suit No. 520/11) Page No. 17 of 21 Tarsem Kaur & Ors. Vs. P Net Solutions (P) Ltd. & Ors.
(i) The bank shall not permit any joint name(s) to be added in the saving account or fixed deposit account of the victims i.e. saving bank account(s) of the claimants shall be individual saving bank account and shall not a joint account.
(ii) Original fixed deposit shall be retained by the bank in safe custody.
However, the statement containing FDR number, FDR amount, date of maturity and maturity amount shall be furnished by the bank to the claimants.
(iii) The monthly interest be credited by Electronic Clearing System(ECS) in the saving bank account of the claimant near the place of their residence.
(iv) The maturity amount of the FDR be credited by the ECS in the saving bank account of the claimant(s) near the place of their residence.
(v) No loan, advance or withdrawal or premature discharge be allowed on the fixed deposits without the permission of the court.
(vi) The concerned bank shall not issue any cheque book and/or debit card to claimants. However, in case the debit card and/cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount. The bank shall debit card(s) freeze the account of claimants so that no debit card be issued in respect of the account of claimants from any other branch of the bank. The bank shall make an endorsement on the passbook of the claimants to the effect, that no cheque book and/or debit card have been issued and shall not be issued without MACT No. 357624/16 (Old Suit No. 520/11) Page No. 18 of 21 Tarsem Kaur & Ors. Vs. P Net Solutions (P) Ltd. & Ors.
the permission of the Court and claimants shall produce the passbook with the necessary endorsement before the Tribunal for compliance.
LIABILITY TO PAY:-
16. Since the car was registered in the name of respondent No.1 and insured with respondent No.2, both shall be jointly and severally liable to pay 25% of the award amount with proportionate interest thereon.
(i) Since the truck was being driven by respondent No.3 registered in the name of respondent No.4 and insured with respondent No.5, all shall be jointly and severally liable to pay 75% of the award amount with proportionate interest thereon.
(ii) Accordingly, issue No.2 is decided in favour of petitioners and against the respondents.
RELIEF:
17. Since, the offending car was insured with respondent No.2 (IFFCO-TOKIO General Insurance Company Ltd.) and truck was insured with respondent No.5 (Royal Sundaram Alliance Insurance Company Ltd.), they are directed to deposit the award amount of ` 26,76,000/- in the ratio of 25% and 75% respectively with MACT No. 357624/16 (Old Suit No. 520/11) Page No. 19 of 21 Tarsem Kaur & Ors. Vs. P Net Solutions (P) Ltd. & Ors.
proportionate interest from the date of filing of petition i.e. October 25, 2010 till realization with Nazir of this Tribunal within 30 days under intimation to the petitioners failing which the Insurance Companies shall be liable to pay interest @ 12 % per annum for the period of delay beyond 30 days.
18. Insurance companies, driver and owners of the offending vehicles are also directed to place on record the proof of deposit of the award amount, proof of delivery of notice in respect of deposit of the amount to the petitioners/claimants and complete detail in respect of calculation of interest etc. within 30 days from today.
(i) A copy of this judgment be sent to Respondent No.2 (IFFCO-TOKIO General Insurance Company Ltd.) and respondent No.5 (Royal Sundaram Alliance Insurance Company Ltd.), for compliance within the time granted.
(ii) Nazir is directed to place a report on record on February 12, 2018 in the event of non-receipt/deposit of the compensation amount within the time granted.
(iii) In terms of clause 31 & 32 of the judgment titled Rajesh Tyagi & others Vs. Jaibir Singh & Ors. decided by Hon`ble High Court on December 12, 2014, copy of this award be sent to the concerned court of Ld. MACT No. 357624/16 (Old Suit No. 520/11) Page No. 20 of 21 Tarsem Kaur & Ors. Vs. P Net Solutions (P) Ltd. & Ors.
Metropolitan Magistrate and Secretary DLSA, Central District for information and necessary action.
(iv) File be consigned to Record Room.
Announced in open court on this 9th day of January, 2018 (PAWAN KUMAR JAIN) Judge, MACT-1 (Central), THC, Delhi/sv MACT No. 357624/16 (Old Suit No. 520/11) Page No. 21 of 21