Delhi District Court
Mrs. Prem Rani W/O Late Dayanand Arora vs Sh. Jawahar Mahto S/O Sh. Meghu Mahto on 9 September, 2010
IN THE COURT OF RAJIV MEHRA
PRESIDING OFFICER
MOTOR ACCIDENTS CLAIM TRIBUNAL
KARKARDOOMA COURTS : EAST DISTRICT DELHI
Date of Institution : 30.01.2008.
Date of arguments : 01.09.2010.
Date of Award : 09.09.2010.
IN MATTER OF
Suit No. 74/08
1. Mrs. Prem Rani W/o Late Dayanand Arora
2. Mr. Ashish Arora S/o Late Dayanand Arora
3. Miss. Bhawna Arora D/o Late Dayanand Arora
R/o 404 SF, Block - A, Kalkaji,
New Delhi ......petitioners.
VERSUS
1. Sh. Jawahar Mahto S/o Sh. Meghu Mahto
R/o S-208 D, Ganesh Nagar,
Pandav Nagar Comp.,
Delhi - 110092
2. Sh. Manjit Singh S/o Sh. Gurbachan Singh
R/o 11/6, Geeta Colony, Delhi
3. New India Assurance Company Ltd.
A-74, Swami Dayanand Marg,
Main Road, Kanti Nagar,
Near Krishna Nagar, Delhi ......Respondents
AWARD
1. This claim petition has been filed by the legal heirs of deceased
Dayanand Arora who suffered a fatal road side accident on 9.11.2007 when
Suit No. 74/08 1/7
he was coming from the side of Nizamuddin Flyover on his scooter no.
DL-3SR-7259. When the deceased reached NH - 24 near Akshardham
Mandir his scooter was hit by TSR bearing registration no. DL-1RJ-1812
driven allegeldy at a high speed and in a rash and negligent manner. As a
result of this impact deceased fell on the road and received injuries. He was
removed to LBS Hospital where his MLC No. 9707 and CR No. 97229/07 was
prepared and he was referred to the GTB Hospital and from where he was
taken to Batra Hospital same day on 9.11.2007 where he expired during the
course of the treatment on 12.11.2007. His postmortem was conducted vide
PMR No. 297/07.
2. FIR No. 588/07 under Section 279/337/304-A IPC was
registered at P.S. Pandav Nagar regarding this accident on the complaint of
HC Anil Dutt. He was an eye witness of the accident. He was on duty in the
area at nearby picket. This claim petition has been filed against driver, owner
of the offending TSR and also against the Insurance Company.
3. Joint written statement has been filed by driver, owner (to be
referred as) R1, R2. Insurance Company R3 has also filed separate written
statement.
4. Based on the pleadings the following issues were framed vide
order dated 29.1.2009.
ISSUES
1. Whether Sh. Dayanand Arora sustained fatal injuries due to rash
and negligent driving of TSR No. DL-1RJ-1812 by R-1? OPP
2. Whether Sh. Dayanand Arora sustained injuries due to rash and
negligent driving of scooter No. DL-3SR-7259 and if so, to what
effect? OPR1R2
3. Whether the petitioner is entitled to get any compensation, if so,
from whom and of what amount?
4. Relief.
Suit No. 74/08 2/7
5. Petitioner no.1 widow Smt. Prem Rani filed her own affidavit of
evidence. She has been examined as PW-1. HC Anil Dutt has been
examined as PW-2. PW-3 is Mohan Singh proprietor of the firm where
decease was employed last.
6. The owner of the TSR Manjit Singh has filed his affidavit of his
evidence. He has been examined as R2W1. Insurance Company has also
examined Sh. S.K. Duseja Deputy Manager of the Insurance Company as
R3W1 and Sh. Amit Kumar Singh AO of the company as R3W2.
7. So far as issue no.1 and 2 are concerned they are based on the
common facts and evidence and are being disposed together.
ISSUE NO.1 AND 2
8. The evidence of PW-2 Anil Dutt is relevant on this issue.
According to the statement of the eye witness on 9.11.2007 he was posted at
P.S. Pandav Nagar. On that day he was on duty in the area when at about
3.00 p.m. in the afternoon PW-2 noticed one two wheeler scooter no.
DL-3SR-7259 was coming from the side of Nizamuddin to Ghaziabad when
one TSR No. DL-1RJ-1812 came from behind driven at a fast speed and hit
the two wheeler scooter. As a result of this the scooter rider sustained
injuries. According to PW-2 this accident has happened because of rash and
negligent driving of TSR driver.
9. Nothing has come in cross examination of eye witness PW-2 to
show that TSR in question was not involved in the accident in question.
PW-2 was on duty in the normal course. He is not hostile to either of the
party. His statement finds support from the criminal case record proved as
Ex. PW1/B. The FIR is of the same date and support the case of the
petitioner on the point of time, place and date of the accident. The MLC of the
deceased prepared at LBS Hospital also supports the case of the petitioners
which shows that he was brought to the hospital on 9.11.2007 at about 3.00
Suit No. 74/08 3/7
p.m. Certified copy of the charge sheet filed against R1 has also been placed
on record. Driver has not filed any defence evidence in the matter.
10. The present is a case of res-ipsa-loquitur. The material brought
on record sufficiently shows that accident of Sh. Dayanand Arora has been
caused by TSR No. DL-1RJ-1812 being driven in a rash and negligent
manner. In Basant Kaur & Ors. V. Chattar Pal Singh & Ors. 2003 ACJ 369
M.P. (DB) it was held that registration of a criminal case against the driver of
the offending vehicle is enough to record the finding that the driver of
offending vehicle is responsible for causing the accident.
11. In order to show that the accident was not caused because of
alleged rash and negligent driving of the TSR by the driver of the same the
driver R1 was to bring the material either through cross examination of eye
witness or he was to lead his own evidence in defence. There is no
convincing material to discharge the burden. The question of rash and
negligent driving is a question of fact and has to be ascertained on the basis
of the material on record. In absence of any evidence coming on record from
the side of the driver of the TSR no such inference against the rash and
negligent of the two wheeler scooter by the deceased can be drawn on
record. More particularly when criminal case has been registered against the
driver of the TSR. Issue no.1 and 2 are disposed of accordingly.
ISSUE NO.3
12. The claim petition has been filed by the widow and also by the
two major children Ashish Arora 26 years and Ms. Bhawna Arora 24 years. In
view of this position only mother has to be considered as financially
dependent upon the deceased. PW-3 Mohan Singh was the employer of the
deceased. According to PW-3 decease was drawing Rs. 8000/- p.m. He has
also confirmed the salary certificate of deceased proved as Ex.PW1/19.
There is no suggestion that deceased was not working with PW-3 nor there is
any reason to doubt the correctness of the document Ex.PW1/19
Suit No. 74/08 4/7
13. The probable age of the deceased has been shown in the
postmortem report as 55 years. In absence of any age proof this age of the
deceased has to be taken as the age for the purpose of computation of
compensation in the present case. Since widow is the only legal heir who is
financially dependent upon deceased Dayanand, ½ of the monthly salary of
deceased to be deducted on account of his personal expenses. The ½ of
8000/- p.m. = Rs. 4000/- p.m. Considering to the age of the deceased being
55 years the multiplier applicable would be of 11. The compensation on
account of loss of dependency in the present case would be Rs. 4000/- X 12 X
11 = Rs. 5,28,000/- which is allowed to the petitioner.
14. The petitioners are also awarded a sum of Rs. 10,000/- on
account of consortium, Rs. 10,000/- on account of loss of estate, Rs. 10,000/-
on account of love and affection and Rs. 10,000/- for funeral expenses. The
petitioners are allowed medical expenses of Rs.50,304/- bills of which have
been placed on record.
15. Keeping in view all the relevant factors, principles of law laid
down in above mentioned case and evidence on record this Tribunal is of the
view that the petitioners are entitled for compensation as per following details.
1. Loss of dependency : Rs. 5,28,000/-
2. Loss of consortium : Rs. 10,000/-
3. Loss of estate : Rs. 10,000/-
4. Loss of love and affection : Rs. 10,000/-
5. Funeral expenses : Rs. 10,000/-
6. Medical expenses : Rs. 50,304/-
: ---------------------
Total : Rs. 6,18,304/-
-----------------------
LIABILITY
16. The TSR at the time of the accident was being driven by R1. It Suit No. 74/08 5/7 has been submitted by the counsel for the Insurance Company that only the permit holder was authorized to drive it and in the event of death of permit holder his widow and minor children shall be allowed to employ an authorized driver with prior approval of STA. Copy of the notification has been proved as Ex.R3W2/A through the statement of Amit Kumar Singh AO of the Insurance Company. The counsel has also been relying upon in the matter of National Insurance Company Ltd. V. Ram Rati & Ors. II (2008) ACC 538. This judgment will be of no help to the Insurance Company in the present case. Rather it has been laid down in Para 6 of the judgment that mere use of the vehicle by a person not authorized by the permit being not the registered owner, cannot give right to the Insurance Company to escape the liability under Section 149 (2) of the MV Act, when the use of a particular vehicle in itself is not in contravention with the permit conditions.
17. In the present case the owner has filed his own affidavit of his evidence. No cross examination of the owner has been made by the Insurance Company on these lines. The Insurance Company has not summoned any witness from the Transport Authority. The placing of reliance by the Insurance Company upon the notification Ex.R3W2/A would thus be of no help to the Insurance Company. The responsibility of payment of compensation would continue to run with the Insurance Company in the present case.
18. An award of the amount of Rs.6,18,304/- is passed in favour of the petitioners and against the respondents alongwith interest @ 7.5% p.a. from the date of filing of the petition till realization of the amount minus the amount of interim compensation if any and interest excepted if any.
19. Out of the award amount Rs. 1 lac each is awarded to petitioner no.2 and 3 being children of the deceased whereas entire balance amount would go to the share of petitioner no.1 Smt. Prem Rani. Out of the share of petitioner no.1 50% be kept in FDR for a period of five years and 50% be Suit No. 74/08 6/7 released to her.
20. The Insurance Company is hereby directed to deposit the award amount with up to date interest in UCO Bank, Branch Karkardooma in the name of the petitioners within 30 days from the date of this award under intimation to this Court and Bank would keep this amount in an account in the name of Judge MACT East and would wait for the further directions as to the disbursement of the same till the compliance is reported.
21. An attested copy of this award alongwith two recent photographs of the petitioners with Court Stamp be also sent to the Bank for facilitating the compliance. Put up for compliance on 19.10.2010.
Dictated and announced in the open Court on 09.09.2010.
( RAJIV MEHRA ) PRESIDING OFFICER MOTOR ACCIDENT CLAIMS TRIBUNAL EAST DISTRICT KKD COURTS : DELHI Suit No. 74/08 7/7