Delhi District Court
Sh. Ashok Kumar vs Sh. Tarsem Lal on 23 November, 2011
IN THE COURT OF MS. VINEETA GOYAL: POMACT (SOUTH01)
SAKET COURTS, NEW DELHI
FATAL CASE
Suit no. : 516/08
Union ID no. : 02403C0150262003
IN THE MATTER OF :
1. Sh. Ashok Kumar
S/o Sh. Desh Raj
R/o B882, Kotla Mubarak Pur,
Mahavir Nagar,
New Delhi
Versus
1. Sh. Tarsem Lal,
S/o Sh. Desh Raj
R/o B882, Kotla Mubarak Pur,
Mahavir Nagar,
New Delhi
2. Sh. Bhupinder Singh
S/o Sh. Desh Raj
R/o B882, Kotla Mubarak Pur,
Mahavir Nagar,
New Delhi
3. Sh. Sunil Dutt
S/o Sh. Desh Raj
R/o B882, Kotla Mubarak Pur,
Mahavir Nagar,
New Delhi
4. Sh. Naveen Kumar
S/o Sh. Desh Raj
R/o B882, Kotla Mubarak Pur,
Suit no. 516/08 Page no. 1/8
Mahavir Nagar,
New Delhi
5. Smt. Raj Rani,
D/o Sh. Desh Raj
R/o H. No. 2449, Sector3,
Ballabgarh, New Delhi
6. Smt. Anita
D/o. Sh. Desh Raj
R/o. AU52, DDA Janta Flats,
Pitam Pura, New Delhi
7. Sh. Ramesh Kumar
S/o. Sh. Rajmal
R/o. 115, DDA Flats,
Tigri New Delhi
8. Skyline India Ltd.
1E/11, Swami Ram Tirath Nagar,
Jhandewalan Extension,
New Delhi
9. The New India Assurance Company Ltd.
A273, Lusa Tower,
Azad Pur, Delhi Insurer
Respondents
Date of first institution : 18.09.2003
Date of institution
in the present court : 26.11.2008
Date of arguments : 23.11.2011
Date of order : 23.11.2011
Present: Sh. Sanjeev Kakra, counsel for petitioner.
Respondent nos.1 to 6 and 8 exparte.
None for respondent no.7.
Sh. R. K. Mathur, counsel for insurance company.
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JUDGMENT/AWARD
1. The present claim petition has been filed by claimant Sh. Ashok Kumar u/s 166 ad 140 of Motor Vehicle Act, 1988 for claiming compensation of Rs.10,20,000/ because of fatal injuries sustained by his mother namely Smt. Kamla Devi aged 60 years in an accident which occurred on 26.10.2002 at 11 pm on ring road opposite gate No.6, Safdarjung Hospital PS Sarojini Nagar against driver/respondent no.7, owner respondent no.8, insurer company respondent no.9 and by incorporating other LRs. of Smt. Kamla Devi as respondent no.1 to 6. According to the petitioner on the date of accident, victim was standing extreme side of road at a bus stand on ring road opposite gate No.6, Safdarjung Hospital and was waiting for a bus. In the mean time a bus bearing no.DL1PA1548 driven by its driver/respondent no.7 in rash and negligent manner came and hit her, As a result of this impact the victim received injuries and was removed to Safdarjung Hospital where she was declared brought dead. An FIR 472 dated 26.10.2002 was registered with P.S: Sarojini Nagar.
2. In response to the notice of petition respondent nos.1 to 6 and 8 were proceeded exparte. However, driver in his written statement denied all the averments taken in the petition. The insurance company in its written statement however denied its liability but admitted that offending vehicle was insured with it covering the date of accident.
3. The following issues were framed on 16.12.2007 by the then Ld. Presiding Officer: Issues:
1. Whether deceased Kamla Devi had died in Motor Vehicle accident due to rash and negligent driving of vehicle bearing No.DL1PA1548 driven R7 owned by R8 and insured with respondent no.9 on 26.10.2002 as claimed in the petition? OPP
2. If issue no.1 is proved in affirmative whether petitioners are entitled for any Suit no. 516/08 Page no. 3/8 compensation if yes from whom and to what amount?
3. Relief.
4. In support of this case, petitioner himself stepped into witness box as PW1, who proved his affidavit by way of evidence as Ex.PW1/A and proved referred documents therein.
5. No evidence was led in defence by driver and insurance company.
6. I have heard the arguments advanced by the counsel for parties and gone through the case file and my findings on the issues are as under: Issue No. 1
7. The present petition has been filed by claimant u/s 166 and 140 of the Act, as such claimant is required to prove that alleged accident has occurred on account of rash and negligent driving by the driver of the offending vehicle. The certified copy of FIR along with other relevant documents including postmortem report death certificate, registration certificate, insurance policy etc are placed on record by claimant. In the case of Basant Kaur and others vs. Chattar Pal Singh and Ors. 2003 ACJ 369 MP (DB), it was observed that registration of criminal case against driver of offending vehicle is enough to record finding that the driver of the offending vehicle is responsible for causing the accident. Herein in the present case, from the documentary evidence, it is proved on record that the victim has sustained injuries on account of negligent driving of driver which resulted into her death. Hence, issue no. 1 is proved in favour of the claimant.
Issue no.2
8. Since issues No. 1 has been decided in favour of the claimant, he is entitled to compensation in the following manner: Loss of dependency:
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9. The counsel for insurance company argued that the claimant is not entitled for any compensation as there is nothing on record to suggest that he was dependent upon his mother. Moreover, pension of Rs.1900/ per month from Government of India on account of her late husband services which was received by late Smt. Kamla Devi was for the purpose of her security and maintenance because of demise of her husband and same should not be considered.
10. The claimant took the plea that deceased was his mother and she was a financial help for him and her family member. Her mother was getting a pension of Rs. 1900/ per month from Government of India on account of his late father services with Safdarjung Airport, New Delhi which was being deposited by her in saving bank account maintained with Punjab National Bank. Besides this she was also running a store/small shop on the ground floor of premises bearing No.B882, Mahavar Nagar, Kotla Mubarakpur, New Delhi and earning Rs.4,000/ per month. However, it is seen from record that the claimant has claimed dependency on deceased but failed to adduced any cogent and convincing evidence to support the plea about the fact that he and his family members were dependent upon her.
11. Hon'ble Supreme Court of India in the case of Smt. Manjuri Bera vs The Oriental Insurance Company (2007) ACJ 1279, had an occasion to examine a similar type of issue in a claim petition of a married children filed for claiming compensation for death of father. The Hon'ble Court elaborately discussed the relevant provisions of Motor Vehicle Act.
12. The provision of Motor Vehicle Act, in the event of injury and death in a motor accident, recognizes a right to apply for compensation and also entitlement for compensation. There are three stages for assessing the question of entitlement of compensation. Firstly, who (the person) is liable and then who is to indemnify the Suit no. 516/08 Page no. 5/8 liability, if any. Next is the quantification which entails application of multiplier system to ascertain deprivation of dependency. In other words, multiplier is a measure of just compensation as prescribed under the Act. The Tribunal after arriving at the amount of compensation which is just and proper, lastly has to specify the person or persons to whom such compensation would be paid.
13. The liability under the other provisions of the Act may be measurable in the terms of Loss of dependency, but, in the cases under Section 140 of the Act entitlement of compensation does not cease merely because there is no dependency. Judged in that background, where a legal representative who is not dependant who as per provisions discussed above competent to file an application for compensation, the quantum cannot be less than the liability referable to Section 140 of the Act. Therefore, even if there is no loss of dependency the claimant if he or she is a legal representative will be entitled to compensation, the quantum of which shall be not less than the liability flowing from Section 140 of the Act.
14. Respectfully following the ratio of the case laid down by Hon'ble Supreme Court of India in the case of Smt. Manjuri Bera vs The Oriental Insurance Company (2007) ACJ 1279, I am inclined to agree with the arguments advanced by the respondents that the petitioner is entitled to an amount of Rs.50,000/ (Fifty Thousands) as laid down in section 140 of Motor Vehicle Act and is accordingly awarded. Love and affection:
15. Loss of life cannot be compensated in any manner but, in token of this relief, petitioners and respondent no.1 to 6 are awarded Rs.70,000/ towards love and affection.
Funeral expenses:
16. A further sum of Rs. 15,000/ is awarded under the head of funeral expenses. Suit no. 516/08 Page no. 6/8
17. As such petitioner as well as respondent nos.1 and 6 are awarded a sum of Rs.
50,000/ +Rs.70,000/ + Rs.15,000/making total compensation of Rs.1,35,000/ (One Lac Thirty Five Thousands only).
Relief:
18. Under the M. V. Act, the compensation is awarded to all the legal heirs of deceased whether they participate in the claim proceedings themselves or through any one of them. In this case, though the claim petition has been brought by petitioner but admittedly the R1 to R6 were arrayed because they also happens to be legal heirs of deceased. In these circumstances all seven legal heirs are entitled to equal share in the awarded claim. Thus, awarded sum of Rs.1,35,000/ (inclusive of interim award, if any) is awarded with interest @ 7.5% per annum from the date of filing of petition i.e. 18.09.2003 till its realisation shall be divided equally among these seven persons namely Sh. Ashok Kumar, Sh. Tarsem Lal, Sh. Bupinder Singh, Sh. Sunil Dutt, Sh Naveen Kumar, Smt. Raj Rani and Smt. Anita.
LIABILITY:
19. In this case, R7 is the driver and R8 is the owner. Smt. Kamla Devi had died on account of negligence of R7. Therefore R7 and R8 are joint tort feasors and jointly and severally liable to pay compensation. R9 is insurer of R8, therefore, R9 is liable to indemnify R8 regarding compensation to be payable to the petitioner as well as respondent nos. 1 to 6.
20. Respondent no.9/insurance company is directed to directly deposit the cheques with the Tribunal within 30 days from today and in case of default, penal interest @ 12% per annum shall be given from the date of filing of delay till deposit of the awarded amount in the name of petitioner as well as respondent no.1 to 6.
21. Let for the identification of the petitioners, the first copy of the petition wherein Suit no. 516/08 Page no. 7/8 photograph of the petitioner is affixed, be annexed with the award.
22. Award is passed accordingly.
23. File be consigned to record room only after compliance by insurance company by depositing the award in the manner as stated above. Be awaited for compliance for 15.01.2012.
Pronounced in the open court
on 23.11.2011 VINEETA GOYAL
PO : MACT (SOUTH01)
23.11.2011
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