Delhi District Court
Smt. Pushpa vs Sunder Lal on 11 April, 2007
1
IN THE COURT OF SHRI GURDEEP SINGH : JUDGE
MOTOR ACCIDENTS CLAIMS TRIBUNAL : DELHI
Petition No. : 224/06
Date of filing of the petition : 25.11.92
Date of assignment to this court : 1.8.2006
Date of Award : 11.4.2007
In re:
1. Smt. Pushpa
w/o. Late Sh Sriniwas
2. Smt. Shreekumari
w/o. Sh. Vesh Lal
3. Sh. Vesh Lal
s/o. Sh. Madhusudan
All r/o. Village Tilath
PO Dev Chanda
Distt Bojhpur, Bihar
c/o. Sh Rajnath
B-911 Camp No 4
Jawalapuri, Delhi-41 .........Petitioners
Versus
1. Sunder Lal
2. Ashok Kumar
3. Nand Lal
4. Amar Nath
2
5. Mohinder Kumar
all r/o. Vill Bansi
PS Mahem, Rohtak
Haryana
6. Smt. Bhagwati
w/o. Sh Jagan Nath
r/o. Bhuwani Khera
Distt Bhuwani
Haryana
7. Smt. Kamlesh Rani
w/o. Sh Ashok Kumar
r/o. Village Mothulwari
Distt Hissar, Haryana
(respondent no 1 to 7 are
children of Late Sh Sant Lal)
8. National Insurance Co Ltd MTPC , 1201 Antriksh Bhawan K G Marg, New Delhi. ........... Respondents APPLICATION U/S. 166 & 140 OF MOTOR VEHICLES ACT 1988 FOR GRANT OF COMPENSATION APPEARANCE:
Sh. K C Jain counsel for petitioners Sh. L D Mual counsel for respondent no 1 and 2 3 Sh. D K Sharma counsel for respondent no 3 JUDGMENT/AWARD
1. This is a petition filed U/s. 166/140 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'Act of 1988') for grant of compensation on account of death of one Sriniwas in motor vehicular accident.
2. The petition is filed by parents and wife of the deceased against the driver, owner and insurer of the offending vehicle.
3. The facts giving rise to the present petition are that it is averred that on 8.7.92 at about 7.30 AM the deceased was going to his place of work at Tilak Nagar on his cycle from his house and when he reached near DTC bus stand opposite Inder Enclave when a tractor bearing registration no HR 15-
0136 came driven in rash and negligent manner by respondent no 1 from the side of Bahadurgarh road and hit 4 the deceased from behind as a result of which deceased fell down and sustained serious injuries all over his body and he died at the spot.
4. Joint written statement was filed by respondent no 1 and 2 wherein they denied the accident. However, it is admitted that respondent no 1 was driving the tractor at relevant time. It is stated that the tractor was insured with M/s. National Insurance Company which was valid from 29.8.91 to 28.8.92.
5. Respondent contested the petition inter alia on the ground that unless and until, it is proved that the driver was driving with valid and effective driving licence they are not liable. However, it is admitted that the vehicle was insured with them in the name of respondent no 2.
6. From the pleadings of the parties my Ld. Predecessor vide order dated 3.10.97 framed following issues :
(i) Whether the deceased died due to rash and negligent driving of HR 15-0136 by R1? 5
(ii) Whether the petitioners are the only LRs of the deceased?
(iii) Whether the petitioners are entitled to any amount of compensation, if so for what amount and from whom?
(iv) Relief.
7. Vide order dated 21.1.99 interim award was passed in favour of petitioners and issues were again framed as under:
(i) Whether the deceased received fatal injuries on account of rash and negligent driving of tractor no HR-
15-0136 by R1?
(ii) Whether the petitioner are entitled of compensation and if so to what amount and from whom?
(iii) Relief.
8. In support of their case petitioner no 3 examined himself as PW1 and also examined PW2 Sh Ram Ishwar brother of deceased and PW3 (wrongly written as PW2) Sh Phool 6 Chand- UDC from Aruna Asaf Ali Hospital.
9. On the other hand respondent no 3 examined R3W1 Sh Sunder Lal driver of offending vehicle; R3W2 Sh Dilip Kaul from insurance company; R3W3 Sh Rajender Kumar Sr. Astt from Registry & Licensing Authority, Una, Himachal Pradesh.
10. I have heard counsel for the parties have also gone through the record.
11. My issuewise findings are as under:
ISSUE NO 1
12. PW1 deposed in the lines of petition and stated that the deceased died in road side accident. He proved the FIR, post mortem report and death report.
13. R3W1 the driver of the tractor deposed that he was driver on the said tractor. He stated that no accident took place with his tractor. In his cross examination he stated that accident was caused by a bus. He stated that he did not make complaint for his false implication with higher 7 officials.
14. Admittedly, there is no eye witness, however, from the criminal court record it is established that the accident was caused due to the negligence on part of driver of the tractor. Moreover, the driver admitted that he was driver of tractor and was arrested by police. He also has admitted that the FIR was registered against him and his driving licence was taken into possession by the police. In the motor vehicular accident doctrine of res ipsa loquitur applies. Once the accident is proved it is for the driver to prove that the accident was caused for the reason other than his. He stated that he was falsely implicated but he has not complained about this with higher authorities. He has not given any reason of false implication, therefore, it cannot be believed. Accordingly, I am of the opinion that the deceased died on account of rash and negligent driving on part of R1. Issue no 1 is decided accordingly.
ISSUE NO 2 8
15. As per the petition the deceased was aged about 26 years. He was stated to be working with M/s. Cheena Industries getting salary of Rs. 1400/- per month.
16. PW1 testified that the deceased was aged about 26 years at time of his death. He was married. He was working at Tilak Nagar getting monthly salary of Rs. 1400/- per month. He further stated that he alongwith wife and his daughter-in- law were living at Bihar and his son used to send his entire income for their maintenance.
17. In his cross examination he stated that he is illiterate. He does not have any documentary proof regarding the age and income of deceased. He further stated that he had not seen the deceased working in any factory. He stated that deceased used to sent the money to them by money order. He stated that he does not have any documentary proof to show that deceased used to send money to them. He stated that Pushpa has not remarried and she is residing with them, however, she used to go to her parent's house occasionally. 9 He stated that he used to send Rs. 1250/- per month.
18. PW2 similarly stated regarding the job of deceased and that the deceased was married at time of his death. He had no children. He also stated that he was getting salary of Rs. 1400/- per month. In his cross examination he stated that Pushpa has not remarried.
19. As per the post mortem report the age of deceased is show as 26 year, therefore, I consider the age of the deceased as 26 years. No document regarding the income of the deceased has been filed. It is also not proved the nature of job of deceased, however, I take help from the minimum wages index and as per the minimum wages index the minimum wage payable to a semi skilled person as the deceased was stated to be working in some factory and at the relevant period the minimum wages payable to semi skilled person was Rs. 1056/- per month. Further, the deceased would have been spending 1/3rd of his income on his own thereby leaving Rs. 704/- with his family which annually 10 comes to Rs. 8,448/-.
20. The appropriate method of calculating the compensation is multiplier method. In the series of judgment the Hon'ble Supreme Court had held that in India the multiplier method for calculation of compensation as enunciated by their Lordship Wright in Davies V. Powell Duffregn Associated Collieries Limited 1942 AC 601 has been held to be the appropriate method to calculate the compensation. By this method the compensation is arrived at by estimating the amount of wage which the deceased was earning, estimating as how much was required for his own living and saving. The balance will give a datum or basic figure which will generally be turned into lump sum by taking a certain number of years purchase. That sum, is to be taxed down by having due regard to the un-certainties such as the victim would be married and would ceased to be dependent and like other matters of speculation and doubt. The Hon'ble Supreme Court in the celebrated judgment of General 11 Manager, Kerala State Road Transport Corporation V. Mrs. Susamma Thomas & Ors (SC) 1994 ACJ 1 has held that the multiplier upto 16 can be given, however, the same was increased to the multiplier of 18 in UP State Road Transport Corporation & Ors V. Trilok Chandra & Ors 1996 (4) SCC 362. In both these judgments the Hon'ble Supreme Court has held that table annexed with the Motor Vehicle Act can be used as guidance to arrive at the appropriate multiplier. Further, Hon'ble Supreme Court has recently laid down in Su Pedi & Ors V. National Insurance Co Ltd 1 (2005) ACC 63 SC delivered by three Judges bench that for the determination of compensation the multiplier should be taken from the second schedule of the Act 1988.
21. Ld. counsel for the insurance company submitted that since the wife of the deceased did not appear therefore, it has to be inferred that she had remarried. In support of his 12 case he cited Sardar Lal V. Kartar Singh & Ors 1998 (2) SLJ-1413.
22. The witnesses examined has stated that she is living with the parent's of deceased and has not remarried. Therefore, I am of the opinion that if she has not appeared as witness no presumption can be raised that she had remarried. Hence, no adverse inference should be drawn against her as death itself is a great trauma to her which one may not like to talk about time and again. In the cited judgment it was held that where the parties has not appeared adverse inference be drawn. There is no quarrel with regard to the legal preposition, however, in the present case other petitioner has appeared. It cannot be expected in the cases before the Claim Tribunal that every claimant should appear before the Tribunal to give statement. As it is not disputed by other claimants that she is the wife of the deceased and has not remarried and further that she continue to live with the parent's of the deceased, therefore, for the purpose of taking multiplier the 13 age of the wife of the deceased would be more appropriate than his parents. The deceased was aged about 26 years at time of his death his wife would be also in the range of same age group, therefore, as per the age of the wife of the deceased the appropriate multiplier would be 18.
23. Accordingly, I calculate the compensation payable to the petitioners as under:
(i) Loss of dependency Rs. 1,52,064/-
(1056 - 1/3rd x 12 x 18)
(ii) Funeral expenses Rs. 10,000/-
(iii) Loss of love & affection Rs. 10,000/-
(iv) Loss of consortium Rs. 20,000/-
TOTAL Rs. 1,92,064/
(rounded off) Rs. 1,92,000/-
RELIEF
24. Accordingly, I award a compensation of Rs. 1,92,000/- (Rupees One Lakh Ninety Two Thousand Only) with interest at the rate of 7% per annum from the date of filing of the petition till its realisation. The interim amount be 14 adjusted accordingly.
APPORTIONMENT
25. Petitioner no 1 Smt. Pushpa shall get a sum of Rs. 1,00,000/- out of it Rs. 80,000/- alongwith proportionate interest be kept in fixed deposit in a Nationalised Bank for a period of twenty years renewable after every five years with quarterly interest payable to the petitioner, however, with no facility of loan or advance on the same.
26. Petitioner no 2 and 3 i.e. Smt. Shree Kumari and Sh. Vesh Lal shall get a sum of Rs. 46,000/- each and out of it Rs. 36,000/- alongwith proportionate interest be kept in fixed deposit in a Nationalised Bank for a period of five years with quarterly interest payable to the petitioners, however, with no facility of loan or advance on the same.
27. However, the petitioners can approach this tribunal for pre-mature withdrawal of amount in case of necessity.
28. As regards the liability, respondent no 1 being the driver and respondent no 2 being owner are joint tort feasors and 15 are jointly and severally liable to pay the compensation. Respondent no 2 had died and his legal heirs were brought on record who are seven person including the driver as he is the son of the respondent no 2 Sh Sant Lal.
29. Respondent no 3 is the insurer. Ld. Counsel for the insurance company submitted that the driver was not holding valid and effective driving license at time of accident. In support of his case he cited Bhagwant Singh & Anr V. Mangat Ram & Ors 114 (2004) DLT- 776; New India Assurance Co Ltd V Manjit Kaur & Ors ((2004) SLT- 380 and National Insurance Co Ltd V. Swaran Singh & Ors I (2004) SLT- 345.
30. R3W1 Sunder Lal testified that on 8.7.92 he is the driver on the tractor. He stated that FIR was registered against him at police station Paschim Vihar and he was arrested. He stated that his driving licence was taken into possession by the police and admitted the certified copy of the driving 16 licence produced on record issued by Una, Himachal Pradesh. He also stated that he had never resided at HP.
31. R3W2 from the insurance company testified that the tractor was insured in the name of Sant Lal. He stated that they had issued a notice U/o. 12 R 8 CPC to the insured for production of original insurance policy and the driving licence but the same was not produced. He also proved the driving licence report from licensing authority, Una Ex. R3W2/7.
32. R3W3 testified that the driving license are issued from serial number 1 every year. He further stated that the driving licence bearing no S/56407/89 was not issued from their office. He also stated that in the year 1989 only 642 driving licence were issued. He further stated that the signature on the said driving licence does not belong to the licensing officer posted in their office at the relevant period.
33. Since it has been proved on record the the driver was not holding valid driving licence. Therefore, adverse inference 17 has to be drawn against owner that the driver was not holding valid driving licence and there is breach of condition of policy. However, as per the law laid down in National Insurance Company Ltd. V. Swaran Singh & Ors 2004 ACJ 1 the insurance company shall make the payment to the petitioner and thereafter, shall be entitled to recover the amount from the legal heirs of respondent no 2.
34. Accordingly, respondent no 3 is directed to pay the compensation by way of cheques in the name of petitioners within 30 days from the date of order. No order as to cost. A copy of this order be supplied free of cost. File be consigned to the record room.
ANNOUNCED IN OPEN COURT GURDEEP SINGH
the 11 of April, 2007
th
ADDITIONAL DISTRICT JUDGE
DELHI.