Delhi District Court
Smt. Sushma Bhardwaj vs Shri Ram Shevak Kumar on 21 December, 2012
IN THE COURT OF SH. ARUN BHARDWAJ
PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS TRIBUNALII,
DWARKA COURTS: NEW DELHI
MACT No. 302/12 & 301/12
(i) 302/12
IN THE MATTER OF :
1. Smt. Sushma Bhardwaj
W/o Late Shri Himanshu Bhardwaj
2. Nishant Bhardwaj (6 Years)
S/o Late Shri Himanshu Bhardwaj
3. Prashant Bhardwaj (2 and half years)
S/o Late Shri Himanshu Bhardwaj
4. Shri Jitender Krishan Bhardwaj
S/o Late Shri Ram Kishan Bhardwaj
5. Smt. Usha Rani
W/o Shri Jitender Krishan Bhardwaj
All R/o H. No. 433, Chirag Delhi,
New Delhi.
... Petitioners
Versus
1. Shri Ram Shevak Kumar
S/o Shri Mahesh Prasad
A438, Pandav Nagar
Naraina Depot, New Delhi.
2nd Add: Pachasapar, Mirjapur
P.O. Karawan, Distt. Nalanda
Balumath Latehar, Jharkhand.
2. Shri Anil Dahiya
MACT No. 301/12 & 302/12 Page 1 of 19
S/o Shri Silak Ram Dahiya
VillNilwal P.O. Tikri Kalan, Delhi.
2nd Add: 2313, Sector 2,
Bahadurgarh, Dist. Jhajjar,
Haryana - 124 103.
3. United India Insurance Company Ltd.
8/130, Delhi Rohtak Road,
Bahadurgarh, Jhajjar,
Haryana - 124 507.
... Respondents
(ii) 301/12
IN THE MATTER OF :
1. Sh. Mahinder Singh
S/o Sh. Jagdish
R/o H.No. RZ89
Aggarwal Colony
Najafgarh, New Delhik110043.
... Petitioners
Versus
1. Shri Ram Shevak Kumar
S/o Shri Mahesh Prasad
A438, Pandav Nagar
Naraina Depot, New Delhi.
2nd Add: Pachasapar, Mirjapur
P.O. Karawan, Distt. Nalanda
Balumath Latehar, Jharkhand.
2. Shri Anil Dahiya
S/o Shri Silak Ram Dahiya
VillNilwal P.O. Tikri Kalan, Delhi.
2nd Add: 2313, Sector 2,
Bahadurgarh, Dist. Jhajjar,
MACT No. 301/12 & 302/12 Page 2 of 19
Haryana - 124 103.
3. United India Insurance Company Ltd.
8/130, Delhi Rohtak Road,
Bahadurgarh, Jhajjar,
Haryana - 124 507.
... Respondents
Filed on : 02.05.2012
Reserved on : 19.12.2012
Decided on : 21.12.2012
J U D G M E N T:
1. These are two claim petitions which are filed under Section 166 and 140 of the Motor Vehicles Act, 1988.
2. As both the claim petitions have arisen out of a common motor vehicle accident, both claim petitions are being disposed of by a common order.
3. In the case of Smt. Sushma Bhardwaj, which is MACT No. 302/12, Petitioner No. 1 is the Widow, Petitioner No. 2 and 3 are minor sons, Petitioner No. 4 is the father and Petitioner No. 5 is mother of deceased Sh. Himanshu Bhardwaj who suffered fatal injuries in a road traffic accident on 07.03.12.
4. Respondent No. 1 is the driver, Respondent No. 2 is the Owner, Respondent No. 3 is the insurer of the offending vehicle.
Case of Petitioners:
5. It is stated in this claim petition that on 07.03.12, MACT No. 301/12 & 302/12 Page 3 of 19 at about 6.00 a.m., deceased was going alongwith one Sh. Mahinder Singh on his Activa Scooter No. DL4SBQ6045 and when they reached at Sector1/6 Red Light, Dwarka, New Delhi, offending vehicle bearing no. DL1M4450 came from opposite side, at a high speed, being driven by its driver in a rash and negligent manner and hit the deceased and Sh. Mahinder Singh.
6. As a result of this accident, the deceased and Sh. Mahinder Singh fell down on the road. Whereas Sh. Mahinder Singh received grievous injuries, Sh. Himanshu Bhardwaj suffered fatal injuries in the accident.
7. It is stated that FIR No. 46/12 is registered at P.S. Dwarka South, New Delhi under Section 279, 338 and 304 A of IPC against Respondent No. 1.
8. It is stated that age of the deceased at the time of accident was 34 years and he was working in AIIMS Hospital, New Delhi and was earning Rs. 16,000/ per month.
9. In these circumstances, petitioners have claimed a compensation of Rs. 80 lacs with interest @ 18% p.a. from the date of accident till its realization. Case of Insurance Company:
10. Insurance company has filed its written statement and has taken a preliminary objection that there is no cause of action in favour of petitioners because the deceased, driver of Activa Scooter bearing no. DL4SBQ6045, was himself negligent while driving his scooter and therefore petition is liable to be dismissed.
MACT No. 301/12 & 302/12 Page 4 of 1911. It was stated that there was no negligence on the part of Respondent No. 1.
12. Rest of the contents of claim petition were denied but it was admitted that vehicle no. DL01M4450 was insured with answering respondent vide policy no. 1112953111P000514023 valid from 27.06.11 to 26.06.12 in the name of Sh. Anil Dahiya.
13. From the pleadings of parties, following issues are framed: (1) Whether Sh. Himanshu Bhardwaj S/o Sh. Jitetnder Krishan Bhardwaj sustained fatal injuries in a motor vehicle accident dtd 07/03/2012 due to rash or negligent driving of vehicle bearing registration no. DL1M4450 by R1? ........OPP (2) Whether the petitioners are entitled to claim compensation, if so, what amount and from whom? ........OPP (3) Relief.
Evidence on behalf of Petitioners:
14. Widow of the deceased entered in the witness box as PW1. She deposed similar facts in her evidence by way of affidavit as were already stated by her in her claim petition.
15. She proved date of birth certificates of Master Nishant and Master Prashant as Ex. PW1/12, her Election I Card as Ex. PW1/3, Election I Card of father of the deceased as Ex. PW1/4, Election ICard of mother of deceased as Ex. PW1/5, PAN Card of the deceased as Ex. PW1/6, ration card as MACT No. 301/12 & 302/12 Page 5 of 19 Ex. PW1/7, driving license of the deceased as Ex. PW1/8 and PAN Card of father of deceased as Ex. PW1/9.
16. In cross examination, she denied a suggestion that the age of deceased was more than 35 years. She reiterated that deceased was 34 years of age at the time of accident. She deposed that her father in law is a pensioner and mother is a housewife. She also stated that she is not an eye witness to the accident.
17. Second witness examined on behalf of petitioners was Raj Kumar Bhola, UDC of AIIMS as PW2.
18. This witness was summoned to prove income of the deceased at the time of his death.
19. As per Ex. PW2/1, which is a letter written by Administrative Officer (H) to this Tribunal, it is written that date of birth of the deceased was 12.08.1977 and the deceased had joined services at AIIMS on 01.01.04. As per this document, Basic Pay of deceased was Rs. 7,490/, D.A. was Rs. 4,344/, HRA was Rs. 2,247/, T.P. was Rs. 948/ and HPCA i.e. Hospital Patient Care Allowance was Rs. 695/.
20. Therefore, gross pay of the deceased was Rs. 15,724/ per month.
21. Perusal of Ex. PW2/1 also reveals that deceased was having Temporary Status in the AIIMS.
22. Third witness examined is Sh. Mahinder Singh who is claimant in Claim Petition No. 301/12 and who was pillion rider on the scooter which was being driven by the deceased.
MACT No. 301/12 & 302/12 Page 6 of 1923. This witness deposed in his evidence by way of affidavit same sequence of events leading to the accident as are already stated by claimants in their claim petitions. Since he was also injured in the accident, he deposed that after the accident he was removed to Deen Dyal Upadhyay Hospital and he has spent Rs. 50,000/ on his treatment till today, Rs. 30,000/ were spent on conveyance and Rs. 30,000/ were spent on special diet.
24. He further deposed that he is an employee of AIIMS and was earning a salary of Rs. 22,000/ per month.
25. He deposed that due to this accident, he could not join his job for 69 days.
26. It is pertinent to mention at this stage that as per Ex. PW2/1, the gross salary of this petitioner is Rs. 23,926/ per month and he had availed 69 days of leave out of which 5 days leave was Medical Leave, two days leave was Earned Leave and 62 days leave was Extra Ordinary Leave from 07.03.12 till 30.04.12.
27. No witness was examined on behalf of any other respondents.
28. Arguments were addressed by Sh. R.K. Singh, learned Counsel for petitioners, Sh. D.K. Ahuja, learned Counsel for Respondent No. 1 and 2 and Sh. R.P. Mathur, learned Counsel for insurance company.
29. On the basis of pleadings of parties, evidence on record and arguments addressed, issuewise findings are as under: MACT No. 301/12 & 302/12 Page 7 of 19 ISSUE NO. 1:
30. Burden of proving this issue is on the petitioner.
31. For succeeding in a claim petition under Motor Vehicles Act, it is for the petitioner to prove that the vehicle which caused the accident was being driven rashly and negligently by its driver.
32. This is sine qua non for getting the relief.
33. Petitioners have examined an eye witness Sh. Mahinder Singh who is PW3 and was a pillion rider on the scooter which was being driven by the deceased at the time of its accident.
34. PW3 has stated in his evidence by way of affidavit that the driver of offending vehicle was driving the same in a rash and negligent manner and that too on wrong side of the road resulting in accident with the scooter driven by the deceased.
35. This witness was not cross examined on behalf of Respondent No. 1.
36. Testimony of this witness has gone unchallenged.
37. Police after investigation in the matter has filed charge sheet against Respondent No. 1, certified copy of which is on record.
38. In Ranu Bala Paul & Ors. v. Bani Chakraborty & Ors. 1999 ACJ 634, the Hon'ble Gawhati High Court has observed as under: "In deciding a matter tribunal should bear in mind the caution struck by the Apex Court MACT No. 301/12 & 302/12 Page 8 of 19 that a claim before the Motor Accidents Claims Tribunal is neither a criminal case nor a civil case. In a criminal case in order to have conviction, the matter is to be proved beyond reasonable doubt and in a civil case the matter is to be decided on the basis of preponderance of evidence, but in a claim before the Motor Accidents Claims Tribunal the standard of proof is much below than what is required in a criminal case as well as in a civil case. No doubt before the tribunal there must be some material on the basis of which the tribunal can arrive or decide things necessary to be decided for awarding compensation. But the tribunal is not expected to take or to adopt the nicety of a civil or of a criminal case. After all, it is a summary inquiry and this is a legislation for the welfare of the society"
39. This case was noticed by Hon'ble High Court of Delhi in the case titled as Cholamandalam M.S. General Insurance Co. Ltd. v. Kamlesh: 2009 (3) AD (Delhi) 310 where adverse inference was drawn because the driver of the offending vehicle had not appeared in the witness box to corroborate his defence taken in the written statement. It was noted that there is nothing on record to show that the claimant had any enmity with the driver of offending vehicle so as to falsely implicate him in the case.
40. In the case of National Insurance Co. Ltd. v. Vijay Laxmi & Ors. MAC APP. No. 375/06 dated 05.07.12, the Hon'ble High Court of Delhi has held as under: "8. In Bimla Devi and Ors. v. Himachal Road Transport Corporation and Ors., (2009) 13 SC MACT No. 301/12 & 302/12 Page 9 of 19 530, the Supreme Court held that in a petition under Section 166 of the Act, the Claimants were merely to establish their case on the touchstone of preponderance of probability and holistic view is to be taken while dealing with the Claim Petition under the Motor Vehicles Act. Para 15 of the report is extracted hereunder: "15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. 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."
9. The report in Bimla Devi (Supra) was relied on by the Supreme Court in its latest judgments in Parmeshwari v. Amir Chand (2011) 11 SCC 635 and Kusum Lata v. Satbir, (2011) 3 SCC 646."
41. In the case of National Insurance Company Ltd. v. Pushpa Rana & Ors.: 2009 ACJ 287, the Hon'ble High Court of Delhi has held that: "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 Co. 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 F.I.R No. 955 of 2004, MACT No. 301/12 & 302/12 Page 10 of 19 pertaining to involvement of the offending vehicle; (ii) criminal record showing completion of investigation of police and issue of chargesheet under Sections 279/304A, Indian Penal Code against the driver; (iii) certified copy of F.I.R., wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of the deceased. These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under the Motor Vehicles Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Hence, this contention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on the part of the driver."
42. Most importantly, counsel for insurance company on 20.11.12 had stated that only quantum is disputed and rash and negligent driving by Respondent No. 1 shall not be agitated by insurance company.
43. Therefore, this issue is decided in favour of petitioners and against respondents. ISSUE NO. 2:
44. First compensation payable to claimants in claim petition no. 302/12 is being taken up for consideration.
45. As per Ex. PW2/1 income of the deceased was Rs. 15,724/ per month.
46. It appears that a sum of Rs. 948/ was given to him towards transport.
MACT No. 301/12 & 302/12 Page 11 of 1947. Once this amount is deducted from the gross salary, the figure that arrives is Rs. 14,776/ per month or Rs. 1,77,312/ p.a.
48. Next question is whether for calculating loss of dependency, future prospects are to be taken into consideration or not.
49. In the case of Smt. Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr., 2009 (6) SCALE 129 the Hon'ble Supreme Court has held that compensation for future prospects is to be awarded to an extent of 50% where deceased was in a permanent job and below 40 years of age.
50. Whether the deceased was in a permanent job?
51. Perusal of Ex. PW2/1 shows that deceased was Hospital Attendant (Temporary Status).
52. When this question was asked from the counsel for petitioners, he filed photocopy of an order dated 23.10.09 of Administrative Officer of AIIMS with the subject Regularisation of Group D Employees working on Adhoc/Temporary Status/Daily Wages at the AIIMS, New Delhi.
53. In this letter, name of Sh. Himanshu Bhardwaj, the deceased, is mentioned at Sr. No. 88.
54. However, this letter reads that hospital attendant's named in this letter who are working on daily wages with temporary status are being considered for regularisation to the post of Hospital Attendant Grade3.
55. It appears that even after passing of letter dated MACT No. 301/12 & 302/12 Page 12 of 19 23.10.09, the deceased was not regularised to the post of Hospital Attendant Grade3 that is why in Ex. PW2/1 his status is shown as Hospital Attendant (Temporary Status).
56. Counsel for claimants has relied on the judgment of the Hon'ble High Court of Delhi in the case of Sukhvinder Kaur v. New India Assurance Co. Pvt. Ltd., MAC APP. No. 134/12, dated 07.08.12, where reliance is placed on the decision of Hon'ble Supreme Court in the case of Santosh Devi v. National Insurance Co. Ltd. & Ors., 2012 (4) Scale 559 to hold that even in the absence of any evidence as to future prospects an increase of 30% in the income has to be provided when the victim was having fixed income or was self employed person.
57. As age of deceased was less then 40 years, future prospects to an extent of 30% shall be given to him.
58. When 30% is added to Rs. 1,77,312/, the annual loss of dependency for the family will turn out to be Rs. 2,30,505/.
59. Date of birth of deceased was 12.08.1977.
60. He met with fatal injuries on 07.03.12.
61. Age of deceased was less then 35 years.
62. Therefore, the multiplier of 16 will be applicable. Therefore, loss of dependency for the family would be 36,88,089/.
63. There are five dependents.
64. Even if father is not treated as a dependent being a MACT No. 301/12 & 302/12 Page 13 of 19 pensioner and even if dependents are four, even then 1/4 th is to be deducted for personal expenses of the deceased.
65. Once 1/4th is deducted from Rs. 36,88,089/, the Loss of Dependency for family would be Rs. 27,66,066/.
66. So far as loss of love and affection is concerned, Hon'ble High Court of Delhi in the case of New India Assurance Company Ltd. Vs. Bharat Singh: MAC Appeal No. 137/12, dated 08.08.2012 has held that when full compensation towards loss of dependency is granted, only a nominal sum is to be awarded towards loss of Love and Affection.
67. It was further held that the trend of the Hon'ble High Courts and the Hon'ble Supreme Court is to grant a compensation of Rs. 25,000/ for Loss of Love and Affection. Such compensation was granted by the Hon'ble Supreme Court in the case of Sunil Sharma Vs. Bachitar Singh Singh:
2011 (11) SCC 425 and in the case of Baby Radhika Vs. Oriental Insurance Company Limited: 2009 (17) SCC 627.
68. Therefore, the petitioners are also entitled to a sum of Rs. 25,000/ for Loss of Love & Affection.
69. Petitioners are also entitled to a sum of Rs. 10,000/ for Cremation Charges and Rs.10,000/ for Loss of Estate.
70. Petitioner No. 1 is also entitled to a sum of Rs. 10,000/ for Loss of Consortium.
71. Therefore, total compensation payable to the MACT No. 301/12 & 302/12 Page 14 of 19 petitioners would be Rs. 28,21,066/ which shall be payable with interest @ 7.5% per annum (this is the rate of interest which is being awarded by the Hon'ble High Court of Delhi at present) from the date of filing of this claim petition which is 02.05.2012 till its deposit.
72. Insurance Company has not proved any defence.
73. Therefore, compensation would be deposited by the Insurance Company within 30 days from today under intimation to the petitioners by registered post.
74. For apportionment of compensation, following directions are passed: (1) 30%/ out of the total compensation awarded, with proportionate interest shall be payable in favour of Petitioner No. 1, Smt. Sushma Bhardwaj widow of the deceased. This payment shall be deposited by the insurance company directly with State Bank of India, Dwarka Courts, New Delhi and the cheque will be in the name of SBI A/c Sushma Bhardwaj. Out of this, 10% shall be released in her Saving Bank Account to be opened in State Bank of India, Dwarka Courts, New Delhi. Balance compensation will be kept in 10 FDRs of equal amount for a period of 1 to 10 years. Monthly interest will be credited in her Saving Bank Account regularly.
(2) 25% out of the total awarded compensation with proportionate interest shall be payable in favour of petitioner no. 2, minor son of the deceased. This payment shall be deposited by the insurance company directly with State Bank of India, Dwarka Courts, New Delhi and the cheque will be in MACT No. 301/12 & 302/12 Page 15 of 19 the name of SBI A/c. Nishant Bhardwaj. This amount will be kept in FDR till he attains the age of 21 years. However, monthly interest will be credited in Saving Bank Account of petitioner no. 1 regularly so that she can use it for welfare of petitioner no. 2.
(3) 25% out of the total awarded compensation with proportionate interest shall be payable in favour of petitioner no. 3, minor son of the deceased. This payment shall be deposited by the insurance company directly with State Bank of India, Dwarka Courts, New Delhi and the cheque will be in the name of SBI A/c. Prashant Bhardwaj. This amount will be kept in FDR till he attains the age of 21 years. However, monthly interest will be credited in Saving Bank Account of petitioner no. 1 regularly so that she can use it for welfare of petitioner no. 3.
(4) 10%, out of the total compensation awarded, with proportionate interest shall be payable in favour of Petitioner No. 4, father of the deceased. This payment shall be deposited by the insurance company directly with State Bank of India, Dwarka Courts, New Delhi and the cheque will be in the name of SBI A/c Jitender Krishan Bhardwaj. Out of this, 10% shall be released in his Saving Bank Account to be opened in State Bank of India, Dwarka Courts, New Delhi. Balance compensation will be kept in 5 FDRs of equal amount for a period of 1 to 5 years. Monthly interest will be credited in his Saving Bank Account regularly.
(5) 10%, out of the total compensation awarded, with proportionate interest shall be payable in favour of Petitioner No. 4, father of MACT No. 301/12 & 302/12 Page 16 of 19 the deceased. This payment shall be deposited by the insurance company directly with State Bank of India, Dwarka Courts, New Delhi and the cheque will be in the name of SBI A/c Jitender Krishan Bhardwaj. Out of this, 10% shall be released in his Saving Bank Account to be opened in State Bank of India, Dwarka Courts, New Delhi. Balance compensation will be kept in 5 FDRs of equal amount for a period of 1 to 5 years. Monthly interest will be credited in his Saving Bank Account regularly.
(6) 10%, out of the total compensation awarded, with proportionate interest shall be payable in favour of Petitioner No. 5, mother of the deceased. This payment shall be deposited by the insurance company directly with State Bank of India, Dwarka Courts, New Delhi and the cheque will be in the name of SBI A/c Usha Rani. Out of this, 10% shall be released in her Saving Bank Account to be opened in State Bank of India, Dwarka Courts, New Delhi. Balance compensation will be kept in 5 FDRs of equal amount for a period of 1 to 5 years. Monthly interest will be credited in her Saving Bank Account regularly.
(7) No Cheque Book will be given to the petitioners.
(8) They will be given passbook and photocopies of FDRs.
(9) Original FDRs shall remain with the Bank.
(10) Petitioners shall cooperate with the bank by providing required documents and by completing necessary formalities for opening of bank account.
MACT No. 301/12 & 302/12 Page 17 of 19(11) Petitioners shall be at liberty to seek transfer of FDR Accounts and Saving Bank Accounts to any other Branch of SBI, if so desired.
(12) Insurance company will deposit the compensation with the bank after its intimation to this Tribunal and the bank will accept compensation cheques only if its intimation is shown to be given to this Tribunal by the insurance company.
75. Now, compensation payable to Sh. Mahinder Singh in MAC No. 301/12 is taken up for consideration.
76. This claimant has suffered fracture of lateral malleolus.
77. Therefore, for Pain and Suffering, this claimant is granted a compensation of Rs. 35,000/.
78. There are no bills for purchase of medicines or for payments given to treating doctors.
79. Therefore, no compensation for cost of treatment is awarded.
80. As per Ex. PW2/1, he had reamined on leave for a period of 69 days.
81. His income was Rs. 22,786/ per month.
82. For Loss of Wages, he is entitled to a compensation of Rs. 45,572/.
83. Besides this, claimant is given compensation of Rs. 5000/ for Conveyance Charges, Rs. 5000/ for Special Diet and Rs. 5000/ for Attendant's Charges.
MACT No. 301/12 & 302/12 Page 18 of 1984. Therefore, total compensation payable to this petitioner would be Rs. 95,572/ which shall be payable with interest @ 7.5% per annum (this is the rate of interest which is being awarded by the Hon'ble High Court of Delhi at present) from the date of filing of this claim petition which is 02.05.2012 till its deposit.
85. Insurance Company has not proved any defence.
86. Therefore, compensation would be deposited by the Insurance Company within 30 days from today under intimation to the petitioners by registered post.
87. Copy of this order be given dasti to all the parties and a copy be also sent to the State Bank of India, Dwarka Courts, New Delhi.
88. File be consigned to the Record Room.
Announced in the open Court On the 21st Day of December, 2012 (ARUN BHARDWAJ) PRESIDING OFFICER MOTOR ACCIDENTS CLAIMS TRIBUNALII DWARKA COURTS: NEW DELHI MACT No. 301/12 & 302/12 Page 19 of 19