Delhi District Court
Smt. Manju Devi vs Manju Devi V Mahender Pal Page No. 1 Of 33 on 7 November, 2014
IN THE COURT OF MS. GEETANJLI GOEL, PO: MOTOR ACCIDENT
CLAIMS TRIBUNAL2, PATIALA HOUSE COURTS, NEW DELHI
Suit No.385/14
Date of Institution: 01.10.2011
IN THE MATTER OF:
1. Smt. Manju Devi
W/o Late Shri Harender.
2. Smt. Birmati
W/o Late Shri Sherpal.
3. Baby Khushi
D/o Late Shri Harender.
4. Master Harsh
S/o Late Shri Harender.
The petitioners No.3 and 4 being
Minors, through their legal guardian/
Mother Smt. Manju Devi.
All r/o H. No. 3, Mohalla Jalalpur
PS Tappal, Distt. Aligarh
UP. ...Petitioners
Versus
Manju Devi v Mahender Pal Page no. 1 of 33
Suit No. 385/14
1. Mahender Pal
S/o Shri Om Prakash
R/o Mohalla Adarsh Nagar
Najibabad, Distt. Bijnore.
2. Subros Ltd.
LGF World Trade Centre
Barakhamba Lane
New Delhi 1.
3. The National Insurance Co. Ltd.
36, Netaji Subhash Marg
Darya Ganj
New Delhi 110002 ...Respondents
Final Arguments heard : 09.10.2014 Award reserved for : 07.11.2014 Date of Award : 07.11.2014 AWARD
1. Vide this judgmentcumaward, I proceed to decide the petition filed u/s 166 and 140 of Motor Vehicle Act, 1988, as amended uptodate (hereinafter referred to as the Act) for grant of compensation in a road accident.
2. It is the case of the petitioners that on 17.08.2011 at about 6.30 a.m. when the deceased Harender was going to Kasan to his work place along with his brotherinlaw (sala) namely Sunil S/o Shri Dhanpal Singh on cycle as Manju Devi v Mahender Pal Page no. 2 of 33 Suit No. 385/14 pillion rider as the cycle was being plied by Sunil, as soon as the deceased and his brother inlaw approached in front of gate of Suzuki Power Train, suddenly the offending vehicle bearing No.DL1VA7321, which was being driven by the respondent No.1 in a very fast speed and in a rash and negligent manner, without blowing any horn, hit the deceased with forceful impact from the back side, due to which the deceased and his brotherinlaw Sunil fell down on the road and became unconscious as the blood began to ooze out from the head and mouth of the deceased, Sunil immediately rushed the deceased to Sunrise Hospital, Gurgaon, where the deceased was declared brought dead as per IPD No.1139/11 dated 17.08.2011 and P.M. report No.AV/34/11 dated 17.08.2011, thereafter the police registered an FIR No. 229/11 u/s 279/304A IPC, PS Manesar, Haryana, while the respondent No.1 along with offending vehicle was arrested by the police later. It is stated that Rs.30,000/ were spent on the funeral of the deceased.
3. It is averred that at the time of accident, the deceased was 28 years old, he was doing private job with Shri Krishna Manpower Services Pvt. Ltd. as a welder, taking Rs.14,300/ per month, as he was intelligent in his work, having wife, two minor children, and a widowed mother, who were totally dependent upon the deceased, the deceased was in possession of sound mind, robust physique, charming personality and was not suffering from any kind of illness. It is averred that the life of the deceased was ended due to the accident. It is averred that if the deceased had not died then he would have Manju Devi v Mahender Pal Page no. 3 of 33 Suit No. 385/14 provided a good education to his son so that his son would have become an engineer or a doctor who would help the petitioners in their old age. It is averred that he was a healthy young boy, wellbuilt and was not suffering from any disease and in the ordinary way, the deceased would have lived at least upto the age of 80 years as there is also a history of longevity of life in his family. It is averred that the principle of resipsaloquitur is attracted in the case. It is averred that the petitioners have suffered great setback and mental pain, agony. It is averred that the cloud of sorrow has dawned over the entire family of the petitioners and there is no happiness in the family of the petitioners. It is averred that the remaining life of the petitioners has become dark and gloomy leaving no charm due to the sudden death of their glorious husband, father as well as son respectively. It is averred that the accident caused great mental shock, tension and disturbance to the petitioners and the ultimate death of the deceased has created a vacuum in the life of the petitioners. It is averred that the respondent No.1 is the driver and the respondent No.2 is the owner of the offending vehicle and the respondent No. 3 is the insurer of the offending vehicle, therefore the respondents are jointly and severally liable to pay the compensation to the petitioners. It is averred that the driver was driving the offending vehicle in rash and negligent manner at fast speed without following the rules and regulations of traffic and without caring for other road users. It is averred that if the driver of the offending vehicle had remained careful and he drove the vehicle in a normal speed, obeying the rules and regulations of the traffic, the sudden death of the Manju Devi v Mahender Pal Page no. 4 of 33 Suit No. 385/14 deceased caused by the said accident could have been avoided, but all in vain. It is prayed that an amount of Rs.50,00,000/ be awarded as compensation in favour of the petitioners and against the respondents.
4. Written statement was filed on behalf of the respondent No.2 taking the preliminary objections that the petitioners have not approached the Court with clean hands and have concealed the material facts. The averments made in the claim petition were denied. It is averred that the alleged accident had occurred due to the negligent and careless act of the brother in law of the deceased and the deceased. It is averred that the driver of the vehicle was having a valid license and the vehicle was insured at the time of the accident. It is averred that the driver of the alleged offending vehicle was rightly driving the vehicle and he was not driving the vehicle rashly and negligently or at a fast speed. It is averred that the driver of the said vehicle was also driving the vehicle with due diligence and he was following the traffic rules and regulations. It is averred that the deceased and his brother in law were driving the bicycle rashly and negligently, as a result of which the deceased met with the unfortunate fate.
5. Written statement was filed on behalf of the respondent No.3/insurance company taking the preliminary objections that there is no cause of action for filing the present petition since the factum of the accident was specifically denied by the respondent No.3. It is averred that in case it is proved that Mini Manju Devi v Mahender Pal Page no. 5 of 33 Suit No. 385/14 bus bearing No.DL1VA7321 was involved in any accident the respondent No. 3 shall not be liable until and unless it is proved that the driver who was driving the vehicle at the time of the accident was holding a valid and effective licence at the time of the alleged accident and that he was not disqualified to hold and obtain the same. It is averred that the vehicle in question had no valid permit and fitness certificate for the area where the alleged accident took place. It is averred that the liability of the respondent No.3, if any is as per the terms and conditions and exceptions of the insurance policy and as per the provisions of the M. V. Act. It is averred that if any accident happened it was because of the sheer negligence and carelessness of the deceased himself and if the deceased was vigilant then the accident could have been avoided. The averments made in the claim petition were denied. It is stated that the vehicle No.DL1VA7321 was/is insured in the name of Subros Ltd. vide policy No. 6300002072. It is averred that the amount of compensation claimed is imaginary, baseless and on the higher side and the same is not awardable to the petitioners. It is averred that the manner in which the alleged accident is stated to have occurred is absolutely wrong and concocted and the accident did not occur as stated by the petitioners. The respondent No.3 denied all the allegations made with regard to the factum of the alleged accident and cause thereof, the involvement of the insured vehicle, injury to the deceased, negligence on the part of the insured vehicle, treatment and expenses incurred by the deceased. It is averred that any injury sustained by the deceased was due to the sole negligence and carelessness of the deceased Manju Devi v Mahender Pal Page no. 6 of 33 Suit No. 385/14 himself and if the deceased was vigilant then the accident could have been avoided.
6. Vide order dated 21.11.2011 of my learned predecessor the respondent No.1 was proceeded exparte. Vide order dated 20.12.2011 of my learned predecessor the respondent No.3 was proceeded exparte. An application filed under order 9 rule 7 CPC on behalf of the respondent No.1 was allowed vide order dated 24.1.2012 of my learned predecessor. From the pleadings of the parties, the following issues were framed by my learned predecessor vide order dated 15.03.2012:
1. Whether the deceased sustained injuries in an accident which occurred on 17.08.2011 at about 6.30 a.m. in front of gate of Suzuki company at PS Manesar, Gurgaon caused by rash and negligent driving of vehicle No.DL1VA7321 driven by respondent no.1, owned by respondent no.2 and insured with respondent no.3? OPP
2. Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
3.Relief.
7. Vide order dated 28.2.2013 of my learned predecessor the respondents No.1 and 2 were proceeded exparte. An application under Section 170 MV Act was filed on behalf of the respondent No.3 which was allowed vide order dated 28.2.2013. It was also directed vide order of the said date that the petitioner shall not be entitled to any interest on the award, if any passed in Manju Devi v Mahender Pal Page no. 7 of 33 Suit No. 385/14 favour of the petitioner from the date of framing of issues i.e. 15.3.2012 till the date of award.
8. On behalf of the petitioners, the petitioner No.1 Smt. Manju Devi appeared in the witness box as PW1 and led her evidence by way of affidavit which is Ex.PW1/1 reiterating the averments made in the claim petition. Copy of election identity card of the petitioner No.1 is Ex.PW1/A, certified copy of criminal record is Ex.PW1/B (colly), copy of statement of Shri Sunil is Mark A, copy of post mortem report is Mark B, copy of salary slip of the deceased is Mark C, copy of birth certificates of the petitioners No.3 and 4 are Mark D and E, copy of death certificate is Ex.PW1/C and copy of bill is Mark F.
9. PW2 Shri Sunil Kumar led his evidence by way of affidavit which is Ex.PW2/A. He deposed that on the most unfortunate day of 17.08.2011 at about 6.30 a.m. when the deceased and his brother in law were going to his company SKH III, from Kasan to his work on cycle, Sunil was plying the cycle. As soon as the deceased and PW2 approached in front of gate of Suzuki Power Train, suddenly the offending vehicle bearing No.DL1VA7321, which was being driven by the respondent No.1 in a very fast speed and in a rash and negligent manner, without blowing any horn, hit the deceased with forceful impact from the back side, due to which the deceased and his brother inlaw Sunil fell down on the road and became unconscious and as the blood began to ooze out from the head and mouth of the deceased, PW2 immediately rushed the deceased to Sunrise Hospital, Gurgaon, where the Manju Devi v Mahender Pal Page no. 8 of 33 Suit No. 385/14 deceased was declared brought dead as per IPD No.1139/11 dated 17.08.2011 and P. M. report No.JW/34/11 dated 17.08.2011. Thereafter the police registered an FIR No.229/11 u/s 279/304A IPC, PS Manesar, Haryana, while the respondent No.1 along with the offending vehicle was arrested by the police later. He stated that at the time of the accident, the deceased was only 28 years old, he was doing private job, taking Rs.14,300/ per month, as he was intelligent in his work and the deceased was survived by his wife, two minor children, and a widowed mother, who were totally dependent upon the deceased. He stated that the deceased was in possession of sound mind, robust physique, charming personality and was not suffering from any kind of illness. He stated that the driver was driving the offending vehicle in a rash and negligent manner at fast speed without following the rules and regulations of traffic and without caring for other road users. The certified copy of the FIR is Ex.PW2/A and copy of statement of PW2 is Mark X. PE was closed on 17.4.2014. It was stated by the learned counsel for the respondent No.3 that no RE was to be led and RE was closed on 17.7.2014.
10. I have heard the Learned Counsel for the petitioners as well as the Learned Counsel for the respondent No.3 and perused the record. The petitioners No.1 and 2 were also examined on 17.07.2014 and 14.8.2014 respectively in terms of the judgment of the Hon'ble High Court on 11.1.2013 in MACA No.792/2006 titled Oriental Insurance Co. Ltd. v. Ranjit Pandey and Ors.
Manju Devi v Mahender Pal Page no. 9 of 33 Suit No. 385/14
11. My findings on the specific issues are as under:
Issue No. 1
12. As the petition has been filed U/s 166 M.V Act it was incumbent upon the petitioners to prove that the deceased sustained injuries in an accident caused due to the rash and negligent driving by the driver of the offending vehicle. To determine the negligence of the driver of the offending vehicle it has been held in National Insurance Company Ltd. vs Pushpa Rana & Another 2009 Accident Claims Journal 287 as follows:
"The last contention of the appellant insurance company is that the respondents/claimants should have proved negligence on the part of the driver and in this regard the counsel has placed reliance on the judgment of the Hon'ble Apex Court in Oriental Insurance Company Ltd. V. Meena Variyal (supra). On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced: (i) certified copy of the criminal record of criminal case in FIR No.955 of 2004, pertaining to involvement of offending vehicle (ii) criminal record showing completion of investigation of police and issue of charge sheet under sections 279/304A, Indian Penal Code against the driver;
(iii) certified copy of FIR, wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of deceased.
These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under the Motor Vehicle Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this Manju Devi v Mahender Pal Page no. 10 of 33 Suit No. 385/14 regard. Hence, this contention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on part of the driver."
It is established law that in a claim petition under Motor Vehicle Act, the standard of proof to establish rash and negligent driving by the driver of the offending vehicle is not at par with the criminal case where such rashness and negligence is required to be proved beyond all shadow of reasonable doubt. In Kaushnamma Begum and others v. New India Assurance Company Limited, it was inter alia held by the Hon'ble Supreme Court that the issue of wrongful act or omission on the part of the 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 injury or death to a human being or damage to property would make the petition maintainable under Sections 166 and 140 of the Motor Vehicle Act.
13. The case of the petitioners is that on 17.08.2011 at about 6.30 a.m. when the deceased Harender was going to Kasan to his work place along with his brotherinlaw (sala) namely Sunil S/o Shri Dhanpal Singh on cycle as pillion rider as the cycle was being plied by Sunil, as soon as the deceased and his brother inlaw approached in front of gate of Suzuki Power Train, suddenly the offending vehicle bearing No.DL1VA7321, which was being driven by the respondent No.1 in a very fast speed and in a rash and negligent manner, without blowing any horn, hit the deceased with forceful impact from Manju Devi v Mahender Pal Page no. 11 of 33 Suit No. 385/14 the back side, due to which the deceased and his brotherinlaw Sunil fell down on the road and became unconscious as the blood began to ooze out from the head and mouth of the deceased, Sunil immediately rushed the deceased to Sunrise Hospital, Gurgaon, where the deceased was declared brought dead as per IPD No.1139/11 dated 17.08.2011 and P.M. report No.AV/34/11 dated 17.08.2011, thereafter the police registered an FIR No. 229/11 u/s 279/304A IPC, PS Manesar, Haryana, while the respondent No.1 along with offending vehicle was arrested by the police later. The petitioner No. 1 in para 2 of her affidavit Ex.PW1/1 had reiterated the mode and manner of the accident as stated in the claim petition. Likewise PW2 in paras 2, 3 and 5 of his affidavit Ex.PW2/A reiterated the mode and manner of the accident.
14. The petitioners have filed certified copies of the criminal record Ex.PW1/B (colly) consisting of copy of FIR No.229/11 under sections 279/304A IPC, PS MSR, Gurgaon which is Ex.PW2/A, copy of charge sheet, copy of post mortem report and copy of RC of the offending vehicle, copy of the DL of the respondent No.1 and the copy of the insurance policy of the offending vehicle. As per the FIR No.229/11 under sections 279/304A IPC, PS MSR, Gurgaon the case was registered on the basis of the complaint of Shri Sunil who has been examined as PW2 wherein he had stated the manner in which the accident took place. As per the charge sheet the respondent No.1 has been charge sheeted for the offence under sections 279/304A IPC.
Manju Devi v Mahender Pal Page no. 12 of 33 Suit No. 385/14
15. The respondent No.1 did not appear either to file the written statement or to crossexamine PW s and was proceeded exparte. Written statement was filed by the respondent No.2 averring that the alleged accident had occurred due to the negligent and careless act of the brother in law of the deceased and the deceased. It was averred that the driver of the alleged offending vehicle was rightly driving the vehicle and he was not driving the vehicle rashly and negligently or at a fast speed. It was averred that the driver of the said vehicle was also driving the vehicle with due diligence and he was following the traffic rules and regulations. It was averred that the deceased and his brother in law were driving the bicycle rashly and negligently, as a result of which the deceased met with the unfortunate fate. However the respondent No.2 did not appear to crossexamine the PWs. During crossexamination by the learned counsel for the respondent No.3 PW1 stated that she is not an eye witness of the accident. She stated that at the time of the accident, her husband was going to attend duties. She denied the suggestion that her husband had not died in the road accident. Thus PW1 was not an eye witness to the accident and she had stated that at the time of the accident her husband was going to attend duties.
16. During crossexamination by the learned counsel for the respondent No.3 PW2 stated that he had brought his election ID card in order to prove his identity. He stated that the deceased was permanent resident of Village Jalalpur, Tehsil Khair, District Aligarh, UP. He stated that he possessed salary Manju Devi v Mahender Pal Page no. 13 of 33 Suit No. 385/14 slip to prove that he was working with M/s SKH III, IMT Manesar but he had not brought the same. He stated that his duty hours were from 7.00 a.m. to 3.00 p.m. He stated that at the time of the accident, he and the deceased were going for duty. He stated that he and the deceased both were covered by ESIC scheme. He did not possess any proof to the effect that he also sustained injuries in the accident. He stated that at the time of the accident public persons were not present. He stated that he had taken the deceased to the hospital in an ambulance. The ambulance had reached the spot after 1015 minutes of the accident. He stated that the police met him for the first time in connection with the accident in Sunrise Hospital. Thereafter, he was called to the PS. He stated that the police remained with him in the hospital for about 30 minutes and he remained in the police station on the day of the accident for about one hour. Thereafter, police met him again the next day of the accident for identification of the body of the deceased. He stated that in the FIR he had not mentioned the number of the offending vehicle. He denied the suggestion that he came to know the number of the offending vehicle after he was called in the PS or that the number of the offending vehicle was told to him by the police. He stated that at present he was not working with M/s SKH III, IMT Manesar. He stated that he left the service of M/s SKH III, IMT Manesar on the day of the accident. He stated that the post mortem on the body of the deceased was conducted the same day and the deceased was taken to his native village on the same day for cremation. He stated that he left for his village the same day after the cremation of the deceased. He stated that he is Manju Devi v Mahender Pal Page no. 14 of 33 Suit No. 385/14 educated upto 10th standard. He did not know the bank account number of the deceased. He stated that he was residing with the deceased in Manesar at C/o Shri Sanju (Landlord), R/o Village Kasand, IMT, Manesar. He stated that he and the deceased did not possess any ration card at the address of Manesar. He stated that he and the deceased were residing in Village Kasand, IMT for about 2 years prior to his death. He stated that the family of the deceased was residing with him in Village Kasand, IMT Manesar. He denied the suggestion that he was not an eye witness of the accident. He denied the suggestion that he in collusion with the owner of the offending vehicle and police had falsely implicated the offending vehicle in the case for claiming compensation and on that account the number of the offending vehicle was not mentioned in the FIR. He denied the suggestion that the accident had taken place with some other vehicle. He denied the suggestion that he was deposing falsely in order to help the petitioners as he was related to them.
17. PW2 thus stated that at the time of the accident, he and the deceased were going for duty which was also stated by PW1. He did not possess any proof to the effect that he also sustained injuries in the accident. He stated that at the time of the accident public persons were not present and he stated that he had taken the deceased to the hospital in an ambulance. It was argued on behalf of the respondent No.3 that the number of the offending vehicle was not mentioned in the FIR and the IO had not been examined and as such the involvement of the alleged offending vehicle was not proved. PW2 had stated Manju Devi v Mahender Pal Page no. 15 of 33 Suit No. 385/14 that in the FIR he had not mentioned the number of the offending vehicle and he denied the suggestion that he came to know the number of the offending vehicle after he was called in the PS or that the number of the offending vehicle was told to him by the police. However it is significant that while the number of the offending vehicle was not mentioned in the FIR, it was mentioned that it was a mini bus and also that Subros was written on it. It is pertinent that the respondent No.2 had filed the written statement but the respondent No.2 did not deny the factum of accident specifically and only stated that the accident had taken place due to the negligence of the deceased and of his brother in law. PW2 was crossexamined on when the post mortem was conducted but nothing much turns on the same. It was also argued on behalf of the respondent No.3 that the eye witness that is PW2 was related to the petitioners and he had stated that he had gone to identify the dead body. However PW2 had specifically stated that he and the deceased were going together on the cycle which was being plied by PW2 and he had stated about the manner in which the accident had taken place. The respondents No.1 and 2 who are the driver and owner of the offending vehicle have not appeared to dispute the version put forth by the petitioners. Further the criminal record has been placed on record which shows that the respondent No.1 has already been charge sheeted for the offence under Sections 279/304A IPC. In Basant Kaur and others v. Chattar Pal Singh and others 2003 ACJ 369 MP (DB) it was observed that registration of criminal case against the driver of the offending vehicle was enough to record Manju Devi v Mahender Pal Page no. 16 of 33 Suit No. 385/14 a finding that the driver of the offending vehicle was responsible for causing the accident. The respondents have also not adduced any evidence to prove any other version of the accident. There is absolutely no evidence from the respondents to disprove the particulars of the accident or the involvement of vehicle No.DLIVA7321. The fact that the charge sheet is filed against respondent No.1 and respondent No.1 is facing criminal trial is also not disputed. In view of the testimony of PWs and documents on record which have remained unrebutted, the negligence of respondent No.1 has been prima facie proved.
18. It was stated that due to the forceful impact of the accident the deceased fell down on the road and became unconscious and as blood began oozing out of the head and mouth of the deceased PW2 immediately rushed the deceased to Sunrise Hospital, Gurgaon where the doctors had declared the deceased brought dead. The Post Mortem report is also on record as per which the cause of death was stated to be head injury and shock and haemmorhage following ante mortem blunt force impact consistent with the manner as alleged. Thus it also stands established that the deceased had sustained injuries in the alleged accident due to which he died. As such issue No.1 is decided in favour of the petitioners and against the respondents.
Manju Devi v Mahender Pal Page no. 17 of 33
Suit No. 385/14
ISSUE No.2
19. Since issue No.1 has been decided in favour of the petitioners they would be entitled to compensation. The petitioners are the wife, two minor children and mother of the deceased. PW1 was crossexamined on the point of dependency and during crossexamination by the learned counsel for the respondent No.3 PW1 stated that her father in law had already expired about 45 years prior. She stated that her mother in law was residing with her. She stated that she was unemployed. She had not filed copy of her ration card on record. She denied the suggestion that she had not filed any document on record regarding her relationship with the deceased. She stated that she possessed a ration card. She denied the suggestion that she was not the wife of the deceased Shri Harender. She stated that she had not remarried. She stated that her husband had two more brothers namely Shri Gajender and Shri Lokender. She stated that Shri Gajender was working in Gurgaon and Shri Lokender was residing in Aligarh. During crossexamination by the learned counsel for the respondent No.3 PW2 stated that the deceased had two brothers namely Shri Rajender and Shri Lokender @ Lokesh and two sisters namely Ms. Satto and Ms. Sushil. He stated that the father of the deceased had expired long ago. He stated that both brothers of the deceased were not residing in the native village. Thus PW1 stated that she is unemployed. PW1 had not filed the copy of her ration card on record but the copy of her voter identity card is on record as Ex.PW1/A which shows the name of her husband Manju Devi v Mahender Pal Page no. 18 of 33 Suit No. 385/14 as Harender i.e. the deceased. She stated that she had not remarried. During examination by the Tribunal the petitioner No.1 Smt. Manju Devi stated that she is 25 years old at present. She stated that she is a housewife. She stated that she has two children. Khushi is aged about 8 years and Harsh is aged about 6 years. She stated that her father in law had expired prior to the accident. Thus being the wife the petitioner No.1 would be regarded as dependent on the deceased as also the petitioners No.3 and 4 being minor children.
20. As regards the petitioner No.2 PW1 had stated that her mother in law was residing with her. She had stated that her husband had two more brothers namely Shri Gajender and Shri Lokender and that Shri Gajender was working in Gurgaon and Shri Lokender was residing in Aligarh. PW2 had also stated that the deceased had two brothers namely Shri Rajender and Shri Lokender @ Lokesh and two sisters namely Ms. Satto and Ms. Sushil. He stated that the father of the deceased had expired long ago. He stated that both brothers of the deceased were not residing in the native village. Thus besides the deceased the petitioner No.2 had other children. During examination by the Tribunal the petitioner No.2 Smt. Birmati stated that she is 65 years old at present. She stated that she resides in UP. She stated that she has four children apart from the deceased, two daughters and two sons as one son had expired. She stated that both the daughters are married and the sons are doing agricultural work. She stated that her husband had expired eight to ten Manju Devi v Mahender Pal Page no. 19 of 33 Suit No. 385/14 years prior. She stated that she also does agricultural work. However as per the well settled law the mother in regarded as a dependent. As such all the petitioners would be regarded as dependent on the deceased.
21. It is the case of the petitioners that at the time of the accident, the deceased was 28 years old, he was doing private job with Shri Krishna Manpower Services Pvt. Ltd. as a welder, taking Rs.14,300/ per month, as he was intelligent in his work, having wife, two minor children, and a widowed mother, who were totally dependent upon the deceased, the deceased was in possession of sound mind, robust physique, charming personality and was not suffering from any kind of illness. It was averred that if the deceased had not died then he would have provided a good education to his son so that his son would have become an engineer or a doctor who would help the petitioners in their old age. It was averred that he was a healthy young boy, wellbuilt and was not suffering from any disease and in the ordinary way, the deceased would have lived at least upto the age of 80 years as there was also a history of longevity of life in his family. It was averred that the cloud of sorrow had dawned over the entire family of the petitioners and there was no happiness in the family of the petitioners. It was averred that the remaining life of the petitioners had become dark and gloomy leaving no charm due to the sudden death of their glorious husband, father as well as son respectively. It was averred that the accident caused great mental shock, tension and disturbance to the petitioners and the Manju Devi v Mahender Pal Page no. 20 of 33 Suit No. 385/14 ultimate death of the deceased had created a vacuum in the life of the petitioners. Copy of salary slip of the deceased is Mark C.
22. During crossexamination by the learned counsel for the respondent No.3 PW1 stated that her husband used to work at HKS Company, IMT, Manesar, Haryana. She stated that the company where her husband used to work was still in business. She stated that her husband worked in HKS Company for 910 years. She stated that she had not filed any other claim in respect of the death of her husband. She stated that she had not received any compensation from the employer of her husband. She stated that her husband used to receive salary in his bank account in HDFC bank. She denied the suggestion that she had lodged claim with the ESI authorities also. She stated that her husband used to receive a sum of Rs.14,000/ to Rs. 15,000/ by transfer in his bank account from his employer. She stated that her husband was educated unto high school but she had not filed certificate of educational qualifications. She admitted that she had not filed any original document of employment of her husband with HKS company. She denied the suggestion that her husband was not employed with HKS company. Thus PW1 had stated that her husband used to work at HKS Company, IMT, Manesar, Haryana and even PW2 had deposed that the deceased and he were working in SKH III and it is the case of the petitioners that the deceased and PW2 were going for duty when the accident took place. PW1 stated that her husband worked in HKS Company for 910 years Manju Devi v Mahender Pal Page no. 21 of 33 Suit No. 385/14 though if the age of her husband was 24 years as stated in the evidence by way of affidavit that may have not been possible and even no proof in that respect has been produced. She admitted that she had not filed any original document of employment of her husband with HKS company. No appointment letter has been placed on record nor any witness has been produced to prove that the deceased was indeed working with the said company or earning Rs.14,300/ p.m. However PW2 had also deposed in that regard and the copy of the salary slip was filed and subsequently the signed and stamped copy of the salary slip was produced.
23. PW2 was crossexamined on filing any other claim in respect of the death of her husband and she stated that she had not filed any other claim in respect of the death of her husband. She stated that she had not received any compensation from the employer of her husband. She denied the suggestion that she had lodged claim with the ESI authorities also. PW2 had also stated that he and the deceased both were covered by ESIC Scheme. During cross examination by the learned counsel for the respondent No.3 PW2 denied the suggestion that the deceased was not employed and was not earning. He denied the suggestion that the claim of the deceased had also been filed with ESI Corporation. He denied the suggestion that he had filed false documents. Thus PW2 also denied the suggestion that the claim of the deceased had also been filed with ESI Corporation. Even otherwise the Hon'ble Supreme Court in Vimal Kanwar & Ors. v. Kishore Dan & Ors. II (2013) ACC 752 (SC) had Manju Devi v Mahender Pal Page no. 22 of 33 Suit No. 385/14 held that PF, pension, insurance and similarly any cash, bank balance, shares, fixed deposits etc. are all a pecuniary advantage receivable by the heirs on account of one's death but all these have no correlation with the amount receivable under a statute occasioned only on account of accidental death and such amount will not come within the periphery of Motor Vehicles Act towards the pecuniary advantage liable for deduction.
24. PW1 had stated that her husband used to receive salary in his bank account in HDFC bank. She stated that her husband used to receive a sum of Rs.14,000/ to Rs.15,000/ by transfer in his bank account from his employer. However no statement of account of the bank has been filed to show how much amount the deceased used to receive on account of the salary. PW1 had stated that her husband was educated unto high school but she had not filed certificate of educational qualifications. No document regarding the educational qualifications of the deceased has been placed on record and subsequently a copy of the complaint was placed on record regarding the loss of original mark sheet made to the concerned PS though copy of High School Certificate attested by the school authorities was placed on record. Even otherwise the attested copy of the pay slip for the month of June, July and August, 2011 has been placed on record and though no witness has been produced to prove the same there is no reason to dispute the said pay slip. The same shows the net salary as Rs.14,300/ for the month of June, 2011, Rs.11,125/ for the month of July, 2011 and Rs.4,707/ Manju Devi v Mahender Pal Page no. 23 of 33 Suit No. 385/14 for the month of August, 2011 when the accident had taken place. However the overtime allowance cannot be included for computation of the loss of dependency nor the AttenAllow. As such looking to the Basic Salary and the HRA the income of the deceased for the purpose of computation of loss of dependency would be Rs.4503+3581 (the fixed sum is taken and not the payable amount such as Rs.4676 and 3719 for the month of June, 2011 as perhaps the same was linked to the number of working days) i.e. Rs.8,084/ p.m. The learned counsel for the respondent No.3 had argued that the income has to be computed on the basis of the minimum wages prevalent in UP or Haryana but as the pay slip is there, the same would be taken into consideration.
25. It is the case of the petitioners that the deceased was aged 28 years and the same was also mentioned in the claim petition though in her evidence by way of affidavit the petitioner No.1 had stated that the age of the deceased was 24 years. PW2 had also deposed that the deceased was only 28 years old. During crossexamination by the learned counsel for the respondent No.3 PW1 denied the suggestion that her husband was aged more than 50 years and that is the reason she had not filed any document of his age. It is true that initially no document was filed showing the age of the deceased while the post mortem report showed his age to be 28 years. However the High School Certificate was filed subsequently which shows the date of birth of the deceased to be 1.5.1983 and as such on the day of accident i.e. 17.08.2011 the Manju Devi v Mahender Pal Page no. 24 of 33 Suit No. 385/14 deceased would have been more than 28 years old. As per the judgment of the Hon'ble Supreme Court in Sarla Verma's case the multiplier of 17 applies for calculating the loss of income where the age of the deceased is 26 to 30 years.
26. As observed above the dependents on the deceased are his wife, two minor children and mother. As per the judgment of the Hon'ble Supreme Court in Sarla Verma's case as the number of dependents was 4 there would be 1/4th deduction towards personal and living expenses of the deceased. As regards the future prospects in Rajesh and Ors. v Rajbir Singh and Ors. 2013 (6) SCALE 563 the Hon'ble Supreme Court held as under:
"11. Since, the Court in Santosh Devi's case (supra) actually intended to follow the principle in the case of salaried persons as laid in Sarla Verma's case (supra) and to make it applicable also to the selfemployed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30% always; it will also have a reference to the age. In other words, in the case of selfemployed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an addition of 50% to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any. Addition should be 30% in case the deceased was in the age group of 40 to 50 years."
Manju Devi v Mahender Pal Page no. 25 of 33 Suit No. 385/14
12.In Sarla Verma's case (supra), it has been stated that in the case of those above 50 years, there shall be no addition. Having regard to the fact that in the case of those selfemployed or on fixed wages, where there is normally no age of superannuation, we are of the view that it will only be just and equitable to provide an addition of 15% in the case where the victim is between the age group of 50 to 60 years so as to make the compensation just, equitable, fair and reasonable. There shall normally be no addition thereafter."
The petitioners would thus be entitled to addition of 50% of the income towards future prospects as the deceased was less than 40 years on the date of the accident.
Accordingly the loss of dependency as per the monthly income i.e. Rs. 8,084/ is calculated as under :
Rs.8,084/ + Rs.4,042/ (50% future prospects) = Rs.12,126/ X 12 (annual) X 17 (multiplier) - Rs.6,18,426/ (1/4th deduction) = Rs.18,55,278/ rounded off to Rs.18,55,000/.
27. The petitioners are also entitled to compensation for loss of consortium, loss of love and affection, loss of estate and funeral expenses. It was stated that Rs.30,000/ had been spent on the funeral. However there is nothing to show the same. It may be mentioned that a bill of Sunrise Hospital for an amount of Rs.16,700/ in respect of the treatment of the deceased was also Manju Devi v Mahender Pal Page no. 26 of 33 Suit No. 385/14 placed on record but neither the original bill has been filed nor the same has been proved as per law. As such the petitioners cannot be held entitled to the amount of the said bill.
The total compensation is determined as under:
Loss to estate : Rs.18,55,000/
Loss of consortium : Rs.50,000/
Love and affection : Rs.1,00,000/
Loss of Estate : Rs.10,000/
Funeral expenses : Rs.10,000/
Total : Rs.20,25,000/
Thus, the total compensation would amount to Rs.20,25,000/. RELIEF
28. The petitioners are awarded a sum of Rs.20,25,000/ (Rs.Twenty lacs twenty five thousand only) with interest at the rate of 9% per annum from the date of filing the claim petition till its realization except for the period from 15.3.2012 till the date of the award (it was directed vide order dated 28.2.2013 of my learned predecessor that the petitioners shall not be entitled to any interest on the award, if any passed in favour of the petitioners from the date of framing of issues i.e. 15.3.2012 till the date of award) including, interim award, if any already passed in favour of the Manju Devi v Mahender Pal Page no. 27 of 33 Suit No. 385/14 petitioners and against the respondents. The petitioner No.2 Smt. Birmati shall be entitled to 20% share in the awarded amount and the petitioners No. 3 and 4 Baby Khushi and Master Harsh would be entitled to 15% share each in the awarded amount and the petitioner No.1 Smt. Manju Devi would be entitled to 50% share in the awarded amount.
29. For safeguarding the compensation amount from being frittered away by the claimants, directions have been given by Hon'ble Supreme Court for preserving the award amount in the case of Jai Prakash Vs. National Insurance Co. Ltd. and Others (2010) 2 Supreme Court Cases 607. In view of the directions contained in the above judgment the award amount is to be disbursed as follows:
a) The share of the petitioner No.2 Smt. Birmati be transferred into her savings account in UCO Bank, Patiala House Court, New Delhi. 50% of the amount be kept in FDR for a period of 3 years. The share of the petitioners No.3 and 4 be kept in FDRs in UCO Bank, Patiala House Court, New Delhi till they attain majority and for 3 years thereafter. 20% of the share of the petitioner No.1 be released to her by transferring it into her savings account and the remaining amount out of her share be kept in FDRs in UCO Bank, Patiala House Court, New Delhi in the following manner:
1.Fixed deposit in respect of 10% for a period of one year.
2.Fixed deposit in respect of 10% for a period of two years.
Manju Devi v Mahender Pal Page no. 28 of 33 Suit No. 385/14
3.Fixed deposit in respect of 10% for a period of three years.
4.Fixed deposit in respect of 10% for a period of four years.
5.Fixed deposit in respect of 10% for a period of five years.
6.Fixed deposit in respect of 10% for a period of six years.
7.Fixed deposit in respect of 10% for a period of seven years.
8.Fixed deposit in respect of 10% for a period of eight years.
b) The respondent No.3 is directed to deposit the amount directly by way of crossed cheque in terms of the above order in UCO Bank, Patiala House Court, New Delhi in the name of UCO Bank, Patiala House Court, New Delhi A/c Manju Devi, Smt. Birmati, Baby Khushi and Master Harsh within 30 days of the passing of the award.
c) Cheque be deposited within thirty days herefrom under intimation to the petitioners. In case of default, the respondent No.3 shall be liable to pay further interest @ 12% per annum for the period of delay.
d) On the deposit of the award amount, the Branch Manager of UCO Bank, Patiala House Court, New Delhi is directed to prepare Fixed Deposit Receipts as ordered above and the balance amount be released to the petitioners No.1 and 2.
Manju Devi v Mahender Pal Page no. 29 of 33 Suit No. 385/14
e) The interest on the fixed deposits shall be paid monthly by automatic credit of interest in the savings account of the petitioner No.1.
f) The withdrawal from the aforesaid account shall be permitted to the petitioner No.1 after due verification and the bank shall issue photo identity card to the petitioner No.1 to facilitate her identity.
g) No cheque book shall be issued to the petitioner No.1 without the permission of the court.
h) The original fixed deposit receipts shall be retained by the bank in safe custody. However, the original pass book shall be given to the petitioner No.1 along with the photocopy of the fixed deposit receipts. Upon the expiry of period of FDR the bank shall automatically credit the maturity amount in the saving account of the beneficiary.
i) The original fixed deposit receipts shall be handed over to the petitioner No.1 on the expiry of the period of the fixed deposit receipts.
j) No loan, advance, or withdrawal shall be allowed on the said FDRs without the permission of the court.
Manju Devi v Mahender Pal Page no. 30 of 33 Suit No. 385/14
k) On the request of the petitioners, the bank shall transfer the saving account to any other branch/bank, according to the convenience of the petitioners.
l) The petitioners shall furnish all the relevant documents for opening of the saving bank account and Fixed Deposit to Senior Manager of UCO Bank, Patiala House Court, New Delhi.
30. The petitioners shall file two sets of photographs along with their specimen signatures, out of which one set to be sent to the Nodal Officer, UCO Bank, Patiala House Court, New Delhi along with copy of the award by Nazir and the second set be retained to the court for further reference. The photographs be stamped and sent to the bank. The petitioners shall also file the proof of residence and furnish the details of the bank account with the Nazir within a week. The petitioners shall file their complete address as well as address of their counsel for sending the notice of deposit of the award amount. APPORTIONMENT OF LIABILITY
31. The respondent No.1 is the driver of the offending vehicle, respondent No.2 is the owner of the offending vehicle and respondent No.3 is the insurer in respect of the offending vehicle. Thus the respondents No.1, 2 and 3 are held jointly and severally liable. Respondent No.3 i.e. National Insurance Company Limited being the insurance company in its written statement had Manju Devi v Mahender Pal Page no. 31 of 33 Suit No. 385/14 admitted that the vehicle No.DL1VA7321 was/is insured in the name of Subros Ltd. vide policy No.6300002072. There is no evidence on behalf of respondent No.3 to show that there was any violation of the rules and terms of policy by the respondents. Hence, the respondent No.3 being the insurance company in respect of the offending vehicle is liable to pay the compensation on behalf of the respondents No.1 and 2. The respondent No.3 being the insurer is directed to deposit the award amount within 30 days with interest at the rate of 9% as directed in para 28 of the judgment cum award in UCO Bank, Patiala House Courts, New Delhi failing which it is liable to pay interest at the rate of 12% per annum for the period of delay.
32. Nazir to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself. The respondent No.3 shall deposit the award amount along with interest upto the date of notice of deposit to the claimants with a copy to their counsel and the compliance report shall be filed in the court along with proof of deposit of award amount, the notice of deposit and the calculation of interest on 09.02.2015.
An attested copy of the award be given to the parties (free of cost) and a copy be also sent to the Nodal Officer, UCO Bank, Patiala House.
Manju Devi v Mahender Pal Page no. 32 of 33 Suit No. 385/14 File be consigned to record room. Announced in open court on this 7th day of November, 2014 (GEETANJLI GOEL) PO: MACT2 New Delhi Manju Devi v Mahender Pal Page no. 33 of 33 Suit No. 385/14