Delhi District Court
Rama Devi W/O Late Bhagwati Singh vs Saif Ali & Ors on 14 September, 2018
Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court)
Karkardooma Courts, Delhi.
In the Court of Sh. G. N. Pandey
Motor Accident Claims Tribunal( Pilot Court)
Karkardooma Courts, Delhi.
DAR No. 210/18
IN THE MATTER OF :
Rama Devi W/o late Bhagwati Singh
R/o L20/88, Gali No. 7,
Jai Prakash Nagar, Ghonda, Delhi.
................ Petitioner
V E R S U S
1. Saif Ali S/o Mohd. Jaki
R/o B69, Gali No. 2, Shriram Colony,
Dayalpur, Delhi.
2. Prabhunath Gaur S/o R. N. Gaur
r/o Phase3rd, JJ Colony, Madanpur Khadar, Delhi.
3. Md. Jakki S/o Md. Shami
R/o B69, Gali No. 2, Shriram Colony,
Dayalpur, Delhi.
................. Respondents
Date of Institution of DAR : 12.07.2018 Date of Judgment/Order : 14.09.2018 A W A R D:
1. By this order, I shall dispose off the DAR petition filed by the IO for grant of compensation to the injured in view of the provisions of Motor Vehicle Act, 1988. The DAR petition is treated as claim petition in view of DAR No. 210/18 1 of 14 Rama Devi & Ors. V/s Saif Ali & Ors.
Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
section 158 (6) of the MV Act, 1988.
2. Briefly the facts of the case are that on 05.02.2018 at about 8:15 8:20 PM, when deceased was crossing the road before the red light near 4 th Pusta Usmanpur, in the meanwhile, one auto bearing No. DL 1 RU 8239 which was being driven by respondent No. 1 at very high speed, rashly and negligently came from the side of Khajoori hit the deceased. Due to which, deceased fell down on the road; injured was taken to JPC hospital in the same auto. The doctor of the said hospital declared the person brought dead. Postmortem of the deceased also conducted.
3. The respondent No. 1 and 2 jointly filed their WS denying the averments made in the petition contending that this petition is not maintainable and there is no cause of action for filing of the same. As contended, neither the respondent No. 1 was driving the TSR nor is a professional driver and as such question of driving simply does not arise at all and respondent No. 1 has been falsely implicated in the present case. It is further contended that respondent No. 1 was going with his maternal uncle namely Rahis and the said TSR was driven by maternal uncle of respondent No. 1. It is further contended that TSR No. DL 1 RU 8239 never met with any accident and respondent No.1 has been falsely implicated in the present case; the alleged vehicle was implicated falsey in the present FIR.
4. On the basis of the pleadings of the parties, following issues were framed:
1. Whether deceased died on account of injuries sustained in accident took place on 05.02.2018 at about 8:20 PM at 4 th Pusta, Usmanpur, Delhi of PS New Usmanpur, Delhi within the jurisdiction of PS New Usmanpur due to rash and DAR No. 210/18 2 of 14 Rama Devi & Ors. V/s Saif Ali & Ors.
Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
negligent driving of vehicle bearing No. DL 1 RU 8239 by respondent No. 1 ?OPP
2. Whether petitioner is entitled to compensation ? If so to what amount and from whom? OPP
3. Relief.
5. Petitioner filed her affidavit by way of evidence Ex. PW 1/A and examined herself as PW1. The witness deposed nothing but deposed regarding the contention in the petition. She also deposed regarding the relevant documents i.e. Ex. PW 1/ 1 to Ex. PW 1/9 and mark A. Petitioner also examined eyewitness of the accident i.e. Ct. Harender Kumar as PW2 who deposed regarding the alleged accident. The PE was thereafter closed.
6. Respondents did not lead any RE despite opportunities therefore RE was closed.
7. I have heard son for petitioner and Ld. Counsel for respondent No. 1 and 2 and considered the relevant materials on record. My issue wise findings are as below : ISSUE No. 1:
1. Whether deceased died on account of injuries sustained in accident took place on 05.02.2018 at about 8:20 PM at 4 th Pusta, Usmanpur, Delhi of PS New Usmanpur, Delhi within the jurisdiction of PS New Usmanpur due to rash and negligent driving of vehicle bearing No. DL 1 RU 8239 by respondent No. 1 ?OPP
8. To succeed in the claim petition in view of Section 166 of the MV Act, DAR No. 210/18 3 of 14 Rama Devi & Ors. V/s Saif Ali & Ors.
Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
it is for the claimant to prove that vehicle which caused the accident was being driven rashly and negligently by its driver. Petitioner filed her affidavit by way of evidence and examined herself as PW1 who deposed about the facts of the case. On the other hand, respondents did not examine any witness to rebut the contentions and deny the claim of the petitioner and mere denial is not sufficient to rebut the claim of the petitioner. No witness was produced or examined by respondents as well to prove as to how accident occurred due to the negligence of the deceased; the respondent No. 1 was not at fault and was not driving the vehicle in rash and negligent manner. There is no reason to disbelieve the testimony of witnesses. DAR filed by IO vide Ex. PW 1/ 1 which includes copy of FIR, site plan, MLC etc. I have gone through the record and documents in respect of the accident caused to the petitioner which is prima facie suggestive of negligence of respondent No. 1 in driving the vehicle at the time of accident.
Relied judgment in (Bimla Devi and Ors. v. Himachal Road Transport Corporation and Ors., (2009) 13 SC 530 and the judgment in Parmeshwari v. Amir Chand (2011) 11 SCC 635 and Kusum Lata v. Satbir, (2011) 3 SCC
646).
Hon'ble Supreme Court in Bimla Devi and Ors. V/s Himachal Road Transport Corporation and Ors, (2009) 13 SC 530 held as under:
"15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of any accident caused by a particular bus in a particular manner may not be possible to be done by the claimant. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of DAR No. 210/18 4 of 14 Rama Devi & Ors. V/s Saif Ali & Ors.
Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
proof beyond reasonable doubt could not have been applied."
9. In judgment of Hon'ble Delhi High Court in United India Insurance Company Ltd. Vs. Deepak Goel & Ors., 2014 (2), T.A.C. 846 (Del.), it was held that in a case, where FIR is lodged, chargesheet is filed, then the documents mentioned above are sufficient to establish the fact that the driver of the vehicle in question was negligent in causing the accident particularly when there was no defence available from his side. In case of Cholamandalam M.S. General Insurance Co. Ltd. v. Kamlesh, 2009 (3) AD (Delhi) 310, an 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 was nothing on record to show that the Claimant had any enmity with the driver of the offending vehicle so as to falsely implicate him in the case.
10. I have gone through the judgment of Hon'ble High Court of Delhi in 2009 ACJ 287, National Insurance Company Limited Vs. Pushpa Rana to examine the aspect of negligence wherein in the Hon'ble High Court held that: In case the petitioner files the certified copy of the criminal record or the criminal record showing the completion of the investigation by the police or the issuance of charge sheet under section 279/304 A IPC or the certified copy of the FIR or in addition the recovery memo and the mechanical inspection report of the offending vehicle, these documents are sufficient proof to reach to the conclusion that the driver was negligent. It was further held that the proceedings under the Motor Vehicles Act are not akin to the proceedings in a civil suit and hence strict DAR No. 210/18 5 of 14 Rama Devi & Ors. V/s Saif Ali & Ors.
Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
rules of evidence are not required to be followed in this regard.
Further, in Kaushnumma Begum and others V/s New India Assurance Company Limited, 2001 ACJ 421 SC, the issue of wrongful act or omission on the part of driver of the motor vehicle involved in the accident has been left to a secondary importance and it was held that, mere use or involvement of motor vehicle in causing bodily injuries or death to a human being or damage to property would made the petition maintainable under section 166 and 140 of the Act. It is also settled law that the term rashness and negligence has to be construed lightly while making a decision on a petition for claim for the same as compared to the word rashness and negligence as finds mention in the Indian Penal Code. This is because the chapter in the Motor Vehicle Act dealing with compensation is a benevolent legislation and not a penal one. Further the Hon'ble High Court of Delhi in MAC App. No.200/2012 in case titled as United India Insurance Co. Ltd. V/s. Smt. Rinki @ Rinku & Ors decided on 23/07/2012 by Hon'ble Delhi High Court, held as under:
"The Claims Tribunal was conscious of the fact that negligence is a sine qua non to a Petition under Section 166 of the Motor Vehicles Act, 1988(the Act). It is also true that the proceedings for grant of compensation under the Act are neither governed by the criminal procedures nor are a civil suit.
11. Therefore, in view of the criminal case record, it is proved that the deceased sustained fatal injuries in the accident which occurred on 05.02.2018 due to rash and negligent driving of offending vehicle bearing No. DL 1 RU 8239 driven by its driver i.e. respondent No. 1. The issue No. 1 is decided DAR No. 210/18 6 of 14 Rama Devi & Ors. V/s Saif Ali & Ors.
Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
accordingly.
Issue No. ii :
(ii) Whether petitioners are entitled to compensation ? If so to what amount and from whom? OPP
12. The Hon'ble Supreme Court in Nagappa V/s Gurdayal Singh reported as 2003(2) SCC 274 ruled that the main guiding principle for determining the compensation is that it must be just and further that it must be reasonable. As observed in UP State Road Transport corporation V/s Trilok Chandra (1996) 4 SCC 362, the compensation awarded in such cases has primarily two elements; the pecuniary loss to the estate of the deceased resulting from the accident and the pecuniary loss sustained by members of his family on account of his death in addition to the conventional award under non pecuniary heads of damages( e.g. loss of consortium, loss of love and affection, funeral expenses etc).
13. The damages are to be based on the reasonable expectation on pecuniary benefit or benefits reduceable to money value. In General Manager Kerala State Road Transport Corporation V/s Susamma Thomas reported as (1994) 2 SCC 176, the court ruled that in fatal accident action, the measure of damages is the pecuniary loss suffered or likely to be suffered by each dependent as a result of death and that : "9.The assessment of damages to compensate the dependants is beset with difficulties because from the nature of things, it has to take into account many imponderables, e.g., the life expectancy of the deceased and the dependants, the amount that the deceased would have earned during the DAR No. 210/18 7 of 14 Rama Devi & Ors. V/s Saif Ali & Ors.
Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
remainder of his life, the amount that he would have contributed to the dependants during that period, the chances that the deceased may not have lived or the dependants may not live up to the estimated remaining period of their life expectancy, the chances that that deceased might have got better employment or income or might have lost his employment or income altogether".
14. Hon'ble Supreme Court in Sarla Verma V/s DTC reported as (2009) 6 SCC 121 held as under:
16. ... "Just compensation" is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of wrong, as far as money can do so, by applying the well settled principles relating to award of compensation. It is not intended to be a bonanza, largesse or source of profits.
17. Assessment of compensation though involving certain hypothetical considerations, should nevertheless be objective. Justice and justness emanate from equality in treatment, consistency and thoroughness in adjudication, and fairness and uniformity in the decision making process and the decisions. While, it may not be possible to have mathematical precision or identical awards, in assessing compensation same or similar facts should lead to award in the same range. When the factors/ inputs are the same, and the formula/ legal principles are the same, consistency and uniformity and not divergence and freakiness, should be the result of adjudication DAR No. 210/18 8 of 14 Rama Devi & Ors. V/s Saif Ali & Ors.
Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
to arrive at just compensation.
15. No amount of compensation can restore, eliminate or ameliorate the loss suffered on account of death ( or injury with lasting effect) the endeavor by such award is to repair the damage done so as to restore the victim( which includes the dependent) to the extent possible to the preaccidental position. The pecuniary damages are meant to take care of the prospective pecuniary loss of future income and the non pecuniary damages to compensate, to an extent, for pain and suffering , loss of love, companionship, expectation of life etc. The Hon'ble Supreme Court in R. K Malik V/s Kiran Pal reported as 2009 (14) SCC 1 observed as under:
22. It is extremely difficult to quantify the non pecuniary compensation as it is to a great extent based upon the sentiments and emotions. But, the same could not be a ground for non payment of any amount whatsoever by stating that it is difficult to quantify and pinpoint the exact amount payable with mathematical accuracy.
23. Human life cannot be measured only in terms of loss of earning or monetary losses alone. There are emotional attachments involved and loss of a child can have a devastating effect on the family which can be easily visualised and understood. Perhaps , the only mechanism known to law in this kind of situation is to compensate a person who has suffered non pecuniary loss or damages as a consequence of the wrong done to him by way of damages / monetary compensation. Undoubtedly, when a victim of a wrong suffers DAR No. 210/18 9 of 14 Rama Devi & Ors. V/s Saif Ali & Ors.
Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
injuries he is entitled to compensation including compensation for the prospective life, pain and suffering, happiness, etc., which is sometimes described as compensation paid for "loss of expectation of life".
16. The challenge in determining the ' just and reasonable' compensation in such cases is mainly due to the fact that there is virtually no evidence in actual loss of earning of the deceased child. Hon'ble Supreme Court in R. K. Malik(supra) noted:
25. That being the position, the crucial problem arises with regard to the quantification of such compensation. The injury inflicted by deprivation of the life of a child is extremely difficult to quantify. In view of the uncertainties and contingencies of human life, what would be an appropriate figure, an adequate solatium is difficult to specify. The courts have therefore used the expression "standard compensation"
and conventional amount/ sum" to get over the difficulty that arises in quantifying a figure as the same ensures consistency and uniformity in awarding compensation."
17. I have gone through the testimony of the witnesses alongwith complete records. The petitioner has prayed amount towards compensation from respondents. It is argued by Ld counsel for respondents that petitioner has not suffered any monetary loss on account of the fatal accident and therefore, she is not entitled for compensation.
There is no dispute at all regarding the offending vehicle nor there is dispute that deceased Bhagwati Singh received fatal injuries due to the accident. The factum of accident as well as death is not denied. The testimony DAR No. 210/18 10 of 14 Rama Devi & Ors. V/s Saif Ali & Ors.
Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
of PW1 / wife of deceased remained unimpeached / uncontroverted and witness proved the relevant documents. No contrary evidence has been brought on record by the respondents.
18. PW1 i.e. wife of the deceased deposed that deceased was aged about 68 years and was working with Super India Trading Company having office at 232, Guru Nanak Auto Market, Kashmere Gate, Delhi and was getting Rs. 16,500/ per month as salary. Petitioner has relied upon the Ex. PW 1/ 8. No witness was summoned and examined by the petitioner to prove the Ex. PW 1/8 therefore in the absence of any records, the income of the deceased has to be considered on the basis of minimum wages applicable to the unskilled workman on the date of accident i.e. 05.02.2018. Therefore, income of the deceased is assessed as Rs. 9,724/ per month. As per adhar card of deceased, the year of birth of deceased is 1950. The accident took place on 05.02.2018 therefore the age of the deceased is taken as about 68 years on the date of accident. In the judgment Munna Lal Jain and Others Vs. Vipin Kumar Sharma and Others reported as MANU/SC/0640/2015 decided by Hon'ble Supreme Court on 15/05/2015 and National Insurance Company Limited V/s Pranay Sethi & Ors. in SLP ( Civil) No. 25590/2014 decided on 31.10.2017, it has been held that multiplier is to be used with reference to the age of the deceased. There is nothing on record to show that deceased was self employed or working in fixed salary; nothing is proved in respect of income of the deceased. In view of judgment of Hon'ble Supreme Court in Laxmidhar Nayak & Ors. V/s Juggal Kishore Behera & Ors reported as MANU/SC/1506/2017, petitioners are not entitled for compensation towards future prospects.
19. In the present case, there is 1 petitioner. Petitioner in her affidavit has DAR No. 210/18 11 of 14 Rama Devi & Ors. V/s Saif Ali & Ors.
Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
mentioned the name of other LRs / children who were major and married at the time of accident of their father so, 1/2nd is to be deducted towards personal expenses. Therefore, the total loss of dependency would be calculated as follows : Rs. 9,724/ X 12 (annual) X 5 (Multiplier) = Rs. 5,83,440/ Rs. 5,83,440/ - Rs. 2,91,720/ (1/2nd personal expenses) = Rs. 2,91,720/.
The total amount towards loss of dependency is accordingly Rs. 2,91,720/.
20. Placing reliance upon the judgment of Supreme Court of Delhi in National Insurance Company Limited V/s Pranay Sethi & Ors. in SLP ( Civil) No. 25590/2014 decided on 31.10.2017, the petitioners are entitled for the loss of estate, loss of consortium and funeral expenses of Rs. 15,000/, Rs. 40,000/ and Rs. 15,000/ respectively.
Therefore, petitioners are also entitled for compensation under the following heads: Loss of dependency Rs. 2,91,720/ Loss of consortium Rs. 40,000/ Loss of Estate Rs. 15,000/ Funeral Expenses Rs. 15,000/ Total Rs. 3,61,720/ I accordingly award an amount of compensation of Rs. 3,61,720/ in favour of the Claimant and against respondents. Liability: In this case, vehicle in question was registered in the name of respondent No. 2 at the time of accident. Hence I am of the opinion that DAR No. 210/18 12 of 14 Rama Devi & Ors. V/s Saif Ali & Ors.
Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
respondent No. 1 and 2 are jointly and severally liable to pay the compensation to the petitioner. Interim award if any paid to injured/ petitioner be adjusted in the award amount.
Award :
21. Resultantly, the DAR petition stands allowed. Respondent No. 1 and 2 are hereby directed to pay the compensation of Rs. 3,61,720/ within one month to the Claimants. Claimants are also entitled to the interest @ 09 % p.a. on the total compensation amount from the date of filing of petition till realization. (The New India Assurance Co. Ltd. Vs. Gopali & Ors., 2012 ACJ 2131 SC, Jiju Kuruvila & Ors. Vs. Kunjujamma Mohan & Ors., 2013 ACJ 2141 SC, Puttamma Vs. K.L. Naraynan Reddy & Ors., 2014 ACJ 526 SC).
22. Respondent No. 1 and 2 are directed to deposit the amount with UCO Bank, KKD Courts Branch, Delhi.
23. Out of the total award amount of Rs. 3,61,720/, UCO Bank, KKD Courts is directed to keep the amount of Rs. 3,00,000/ in 6 FDRs of Rs. 50,000/ each for the maturity period of six month to three years respectively ( at the interval of six month each) with cumulative interest in the name of petitioner.
24. UCO Bank, KKD Courts is directed to release the remaining amount alongwith interest in favour of petitioner in her saving bank account after production of passbook of the bank account near the place of the residence with due endorsement that no debit card or cheque book has been issued or debit card / cheque book has been cancelled ( if issued).
25. Withdrawal from the said Account shall be permitted to the petitioner after due verification.
DAR No. 210/18 13 of 14 Rama Devi & Ors. V/s Saif Ali & Ors.
Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
26. All the original FDRs shall be retained by the UCO bank, KKD Courts. However, the statement containing the FDRs number, amount, date of maturity and maturity amount shall be furnished by the UCO Bank to the petitioner/ beneficiary. On expiry of period of each FDR, the Bank shall automatically credit the maturity amount in Savings Account of beneficiary. The beneficiary shall intimate regarding his bank and account number for automatic credit of the maturity amount.
27. No loan, advance or premature discharge of the FDRs shall be permitted without permission of this court.
28. The maturity amount of the FDRs alongwith interest thereon be transferred to the saving bank accounts of the beneficiary.
29. The liberty is given to the petitioner/ injured to approach this court for release of further amount in event of any financial exigency.
30. On request of Claimant, bank shall transfer the Savings Account to any other branch in the name of petitioner and the bank of the petitioner are directed not to issue any cheque book or Debit Card to the account holder.
31. The award amount alongwith interest be deposited by respondent No. 1 and 2, within 30 days.
32. FormV shall be read as a part of the judgment.
Digitally signed by GORAKH GORAKH NATH PANDEY
Location: Court No.69,
NATH North East District,
Karkardooma Court,
Delhi
Announced in open Court
on this 14th day of September, 2018 PANDEY Date: 2018.09.14
16:51:42 +0530
G. N. Pandey
Motor Accident Claims Tribunal( Pilot Court) District North East Karkardooma Courts, Delhi.
DAR No. 210/18 14 of 14 Rama Devi & Ors. V/s Saif Ali & Ors.