Delhi District Court
) Smt. Sharmila W/O. Late Sh. Povinder @ ... vs ) Sh. Rajender Singh on 5 July, 2012
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IN THE COURT OF SH. D.K. MALHOTRA, ADDL. DISTRICT &
SESSIONS JUDGE CUM PRESIDING OFFICER, MOTOR ACCIDENT
CLAIMS TRIBUNAL, ROHINI COURTS, DELHI
(MACT No. 190/10/09)
1) Smt. Sharmila W/o. Late Sh. Povinder @ Parvinder
2) Raj Singh S/o. Sh. Tara Chand
3) Smt. Krishna W/o. Sh. Raj Singh
4) Child in womb
All R/o. Village Jajal, Distt. Sonepat, Haryana.
(petitioner no. 4 being child in womb is under guardianship of
petitioner no.1/mother and natural guardian)
----------Petitioners
Versus
1) Sh. Rajender Singh, S/o. Sh. Dharam Singh
R/o. Village & PO Kanonda,
Distt. Jhajjar, Haryana.
2) Sh. Surender Singh S/o. Sh. Ghasi Ram
R/o. Village Khairpur, P.S.Bahadurgarh, Distt. Jhajjar, Haryana
3) Chola Mandalam General Insurance Co. Ltd.
304/A, III Floor, Kanchanjunga Building,
18, Barakhamba Road, Connaught Place,
New Delhi.
-----------Respondents
Date of institution----24.08.2009
Date of decision------ 05.07.2012
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(Application u/s 166 and 140 of Motor Vehicles Act
for grant of compensation)
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JUDGMENT:-
1. As per averments made in the petition, on 29.04.2009 at about 9.20 p.m. Sh. Parvinder @ Povinder (herein after referred to as deceased) aged about 20 years was going on his motorcycle bearing no. HR-10M-6949 from Village Jajal to his in-laws' house in Village Qutab Garh and when he reached in between the village Auchandi Boarder and Mungespur, in front of Sharab Ka Theka(countrymade wine shop) in meantime a jeep make crusher bearing no. HR-63-A-7795 driven by the respondent no. 1 at a very high speed, rashly and negligently came from opposite side and hit the motorcycle of the deceased with force, due to which the deceased alongwith his motorcycle fell down and deceased was immediately taken to Maharishi Balmiki Hospital, where he was declared brought dead. The post mortem of the deceased was conducted at Babu Jagjivan Ram Hospital vide PM Report no. 418/09 dt. 30.04.2009. A criminal case under section 279/304-A IPC was registered against respondent no. 1 vide FIR No. 97/09 in police station Bawana.
2. Petitioner no. 1 being widow, petitioners no. 2 and 3 being father and mother and petitioner no. 4 (child in womb) of the deceased in the present petition alleged that the deceased was working as plaster assistant with Shiv Jivodya Janta Hospital, 2382-E, Mandi Extension Narela, Delhi and he was getting Rs. 5,000/- p.m. at the time of his accident. Further it is stated that income of the deceased was increasing every year and in future he would have started earning about Rs. 6,000/- per month to Rs. 8,000/- per month. They claimed sum of Rs. 20,00,000/- as -3- .
compensation along with interest @ 12% p.a. from respondents being driver, owner and insurance company of the offending vehicle.
3. Respondent no. 1 & 2 driver and owner of the offending vehicle did not file their written statement and their defence was struck off vide order dt. 05.07.2010 and they were proceeded exparte vide order dt. 16.03.2012. Respondent no. 3/insurance company in its written statement admitted that the offending vehicle was insured with it but tried to avoid its liability on some technical grounds.
4. On the basis of pleadings of the parties, following issues were framed on 05.07.2010 by my ld. Predecessor:
1.Whether on 29.04.2009 at about 9.20 p.m. deceased Parvinder @ Povinder suffered fatal injuries in the accident caused by offending vehicle Force Trax Crusier (Sumo Type) bearing No. HR-63A-7795 driven by the respondent no.1 in rash and negligent manner? OPP
2.Whether petitioners are entitled for compensation, if so, to what extent and from whom? OPP
3.Relief
5. In order to prove their case, petitioners examined wife of the deceased namely Smt. Sharmila as PW1 who proved documents i.e. photocopy of ration card Ex.PW1/1, photocopy of election card of deceased Ex.PW1/2, senior secondary school certificate Ex.PW1/3, copy of salary certificate Ex.PW1/4, copy of death certificate Ex.PW1/5 and photocopy of driving license of deceased Ex.PW1/6 and birth certificate of daughter Ex.PW1/7 (petitioner no.4). Further petitioners examined eye witness PW2 Sh. Sunil Kumar who filed his affidavit Ex.PW2/A where he narrated the way in which the accident took place and also stated that said accident took -4- .
place solely and entirely due to rash and negligent driving on the part of driver Rajender Singh of offending jeep make crusher no. HR-63A-7795. No evidence was led by any of the respondents.
6. I have heard counsel for the parties and have perused the entire record. My decision on the above mentioned issues is as under:
Issue No.1 :
7. The proof required in MACT claim petition are less than the proof required to criminal offence or a civil case. The principles to be followed in the case of motor accident claims has been laid down by the Hon'ble High Court of Guwahati in case cited as Renu Bala Paul and Ors. vs. bani Chakraborty and Ors. 1999 ACJ 634 wherein it is held that:
"In deciding a matter Tribunal should bear in mind the caution struck by the Apex Court 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 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.
In N.K.V. Bros (P) Ltd. vs. M. Karumai Ammal & Ors. AIR 1980 SCC 1354, Hon'ble Supreme Court has observed as under:-
"Road accidents are one of the top killers in our country, especially when truck and bus drivers operate nocturnally. This proverbial recklessness often persuades the courts, as has been observed by us earlier in other cases, to draw an -5- .
initial presumption in several cases based on the doctrine of res ipsa loquitur. Accidents Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic maybes. We are emphasizing this aspect because we are often distressed by transport operators getting away with it thanks to judicial laxity, despite the fact that they do not exercise sufficient disciplinary control over the drivers in the matter of careful driving. The heavy economic impact of culpable driving of public transport must bring owner and driver to their responsibility to their "neighbour".
8. The averments made in the claim petition about the manner of accident have already been discussed above. The certified copy of the charge sheet for the offences punishable u/s 279/304-A IPC filed against the respondent no. 1 by the petitioner is also placed on record which reveals that he was prosecuted by the police for causing injuries to the deceased resulting into his death. The petitioner no. 1 also appeared & entered into witness box and examined himself as PW-1 and tendered the documents Ex. PW1/1 to Ex.PW1/7. Further PW2 being an eye witness in his statement disclosed how and in which manner accident took place and entirely blamed driver of offending jeep in causing the accident.
9. The certified copies of criminal case record shows that respondent no. 1 is facing criminal prosecution for causing death of deceased in an accident due to driving of offending vehicle in rash and negligent manner. Police also after investigation prima facie found that accident had taken place due to rash and negligent driving of respondent no. 1. There is nothing on record to show that respondents no. 1 and 2 had lodged any complaint to any higher authority regarding alleged false implication of respondent no. 1 in criminal case. There is also no evidence on record to point out that respondents no. 1 and 2 had any enmity with -6- .
deceased or his family members or investigating officer to create possibility of false implication of respondent no. 1 in criminal case. The offending jeep was seized and respondent no. 1 was arrested by the police. I am of the view that deposition made by PW-2 about manner of accident is unimpeachable and trustworthy. Postmortem report of the deceased point out that his instant death took place in road accident. Respondent no. 3 insurance company has not raised any dispute about the correctness of the driving licence of the respondent no. 1. Accordingly it is held that accident had taken place with vehicle i.e. jeep bearing no. HR-63A-7795 due to its rash and negligent driving by respondent no. 1 and there was no fault or negligence on the part of the deceased. In view of the above discussions, this issue is decided in favour of petitioners and against the respondents.
Issue no. 2:-
10. Deceased expired on 29.04.2009 due to the accident. PW-1 has deposed that deceased was earning Rs. 5,000/- p.m. at the time of his accident and in support of her submissions she has filed certificate regarding a course done in Para Medical Science and Research Organization Ex.PW1/3 and salary certificate Ex.PW1/4 issued by employer of her deceased husband namely Shiv Jivodya Janta Hospital mentioning that he was drawing salary of Rs. 5,000/- per month. As per this date of birth of the deceased Povinder @ Parvinder was 15.11.1989 and at the time of his death his age was 20 years. Hence, the amount of salary of Rs. 4382/ p.m. has to be taken into account for the purpose of calculations of the dependency assuming him under the category of maticulate as per the Minimum Wages Schedule.
11. As per the petition the deceased was 20 years of age at the time of his death hence in view of the judgment of Supreme Court given in Sarla Verma vs. DTC 2009 ACJ 1298 and as per judgment cited as -7- .
IV(2011) ACC 914 of Hon'ble High Court of Delhi, multiplier of 18 has to be applied upon the income of the deceased.
12. Since deceased was 20 years, so keeping in view his age of about 20 years at the time of death, future prospectus of 50% has to be added in his income as per Sarla Verma's decision. Hence the yearly income of deceased comes to Rs. 6,573/- (Rs. 4382/- + 50%).
13. Deceased had left behind his wife, mother, father and a minor girl so accordingly it can be said that three (since father is not treated as depending upon his son) petitioners were dependent upon the deceased at the relevant time. In view of the decision of Sarla Verma's case, the deduction of 1/3rd from the salary of deceased has to be made upon his personal expenses. Hence after deducting 1/3rd of the amount from monthly income of Rs. 6,573/-, monthly dependency comes to Rs. 4382/- per month. Accordingly, in this case, loss of dependency is assessed at Rs.9,46,512/- (Rs. 4,382/- x 12 X 18).
14. Petitioners have not brought on record any document regarding expenses incurred on funeral and last rites of the deceased. It is a judicial noticeable fact that normally some expenses are incurred upon cremation, Chotha or Theharvin ceremonies etc. Hence, I deem it proper to grant lump sum Rs. 15,000/- as funeral charges.
15. Petitioners are also entitled to the loss of estate amounting to Rs. 1,50,000/- (Rs. 50,000/- each to all the petitioners) in view of the decision of Supreme Court given by Justice J.R Midha. Another sum of Rs. 1,50,000/- towards loss of company, love and affection etc. is awarded to the petitioners after relying upon the judgment of Delhi High Court in case Sajha vs. National Insurance Co. Ltd. 2010 ACJ 627. Further petitioners are granted a sum of Rs. 1,00,000/- towards loss of care, -8- .
attention & expenses to be born for the performance of gratuitous services are granted as per the latest judgment of justice G.P.Mittal.
16. Respondent no. 3 insurance company could not bring on record any evidence to point out that it is not liable to pay compensation amount as assessed by the court or any term or condition of the insurance policy was breached by the insured or it has any limited liability. Keeping in view the existence of valid insurance policy, respondent no. 3 alone becomes entitled to pay entire compensation amount.
17. In view of the above discussions, this issue is decided in favour of petitioners by holding that they are entitled to get the following total compensation from the respondent no. 3 only.
1). Loss of dependency=================Rs.9,46,512/-
2). Funeral charges===================Rs. 15,000/-
3). Loss of estate==================== Rs.1,50,000/-
4). Loss of loss of company, love ===========Rs.1,50,000/- and affection etc.
5) Loss of care, attention & expenses=========Rs.1,00,000/-
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Total Rs.13,61,512/-
Issue no. 3 (Relief):-
18. On the basis of findings given above, present petition is disposed off. Respondent no. 3 insurance company is directed to pay within 30 days a sum of Rs. 13,61,512/- to the petitioners along with interest at the rate of 12% p.a. from 08.06.2009 i.e. the date when report u/s. 158 (6) MV Act filed in the court till this amount is fully paid.
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19. Petitioner no. 2 being the father of the deceased be paid Rs. 1,00,000/- which be deposited in his name in form of FDR for the period five years with liberty to withdraw monthly interest.
It is further ordered that out of the remaining compensation amount 30% be paid to the petitioner no. 3 (mother of deceased) in the form of FDR with liberty withdraw monthly interest.
Remaining 70% of the compensation amount be deposited in the name of petitioner no. 4/minor daughter in form of FDR initially for a period of five years to be renewed from time to time till she attains the age of 21 years with liberty to withdraw monthly interest by petitioner no.1/mother. All the FDRs be got prepared from SBI, Rohini Courts Complex Branch, Delhi and shall not be encashed without permission of the court. No loan or advance shall allow to be taken on these FDRs.
Respondent no. 3 insurance company is directed to prepare the separate cheques of the compensation amount as per above order.
20. In addition to that Rs. 40,000/- towards lawyer's fees and Rs. 10,000/- towards out of pocket expenses be given to counsel for petitioner Sh. A.K.SIngh, enrollment no. D-2200/06 as per judgment of Justice J.R. Midha titled as Sat Prakash vs. Jagdish cited as II (2010) ACC 194 by insurance company.
21. Copy of this judgment be given to petitioners and counsel for respondent no. 3 insurance company for compliance. File be consigned to record room.
Announced in the open (D.K. MALHOTRA)
Court on 05.07.2012 JUDGE, MACT (OUTER-II)
DELHI