Delhi District Court
Sh. Heera Singh vs Sh. Gautam Yadav on 10 December, 2012
IN THE COURT OF MS. REKHA RANI : JUDGE : MACT : DELHI
MACT No. : 1289/06
UNIQUE ID NO. : 02404C0358042006
1. Sh. Heera Singh
S/o Sh. Joginder Singh (husband of the deceased)
2. Sh. Uday Chandra Kumar Singh
S/o Sh. Heera Singh
3. Ms. Neema Kumari
D/o Sh. Heera Singh
4. Baby Sanju Kumari
D/o Sh. Heera Singh (children of the deceased)
All residents of:
N44/126, Gali No.9,
Sanjay Colony,
Samaypur, Delhi
......Petitioners
Versus
1. Sh. Gautam Yadav
S/o Sh. Nathuram Yadav
R/o Village Pakhdolla
Police Station Gurgaon
District Gurgaon (Haryana) Driver
MACT No. 1289/06 1 of 25
2. Sh. Dharam Singh
S/o Sh. Mitra Sen
R/o 168/26, Manohar Nagar
Gurgaon Owner
3. National Insurance Company Ltd.
Through its Chief Executive
New Delhi110001 Insurance
..... Respondents
DATE OF INSTITUTION : 30.11.2006 DATE OF RESERVING ORDER : 26.11.2012 DATE OF PRONOUNCEMENT : 10.12.2012 AWARD:
1. The loss of true love and care suffered by a child whose mother died in a road accident, loss of wife's personal care and attention which the husband had suffered cannot be calculated in terms of money. Her contribution towards house making as a wife, as a mother with selfless love and devotion cannot be compensated.
2. "The services of a wife a mother are worth more than those of a housekeeper because she is in constant attendance and does many more things than a housekeeper"
MACT No. 1289/06 2 of 25 (Regan v. Williamson 1977 ACJ 331 (QBD England)
3. In Arun Kumar Agrawal & Anr. v. National Insurance Company Limited., (2010) 9 SCC 218, Hon'ble Apex Court observed that it is difficult to value the services rendered by a wife and a mother.
26."In India the Courts have recognized that the contribution made by the wife to the house is invaluable and cannot be computed in terms of money. The gratuitous services rendered by wife with true love and affection to the children and her husband and managing the household affairs cannot be equated with the services rendered by others. A wife/mother does not work by the clock. She is in the constant attendance of the family throughout the day and night unless she is employed and is required to attend the employer's work for particular hours. She takes care of all the requirements of husband and children including cooking of food, washing of clothes, etc. She teaches small children and provides invaluable guidance to them for their future life. A housekeeper or maidservant can do the household work, such as cooking food, washing clothes and utensils, keeping the house clean etc; but she can never be a substitute for a wife/mother who renders selfless service to her husband and children."
4. But then life goes on and one has to move on. Therefore, some MACT No. 1289/06 3 of 25 monetary compensation has to be given to the dependents to cope up with the loss. Section 168 of Motor Vehicles Act (in short the Act) mandates the Claims Tribunal to conduct an inquiry to award compensation which appears to be "just and reasonable". It has been asserted by Apex Court repeatedly that compensation should neither be a bonanza nor should it be niggardly.
5. Now turning to the facts of this case, Prabhawati was wife of Petitioner No.1 and mother of remaining petitioners who died in a road accident. They have filed the present petition under section 166 & 140 of the Act claiming an amount of Rs. 20,25,000/ with interest @ 18% per annum from the date of accident to the date of actual realization of the amount pleading that: On 21.07.2006, Prabha Wati (in short the deceased), Vishwanath Tiwari (in short the complainant) and other people of the colony had gone to Haridwar for taking Kanwar. After taking Holy Bath, they were proceedings towards Rishikesh. A Bhandara was going on in Jai Ma Ashram at Raiwala. At about 2:10 p.m, the deceased was standing on Non Metallic/Kachha MACT No. 1289/06 4 of 25 Road, when one motorcycle came from Haridwar side, bearing registration No. HR26AA4221 make Hero Honda CD 100 (in short the offending vehicle), being driven by Gautam Yadav (in short R1) at a very high speed rashly and negligently in violation of all traffic rules and hit the deceased. She was taken to Madhvint Hospital, Haripur Marg, where she was declared brought dead.
6. She was working with R.K. Tailors, 4278, Main Road, Haiderpur, Delhi110088 and drawing a sum of Rs. 4000/ per month as salary. Sudden and untimely death of the deceased at the hands of R1 has deprived the petitioners of her care, love and affection and also her financial support.
7. R1 and Dharam Singh, owner of the offending vehicle (in short R2) filed common written statement. It is denied that petitioners were dependent upon the deceased. It is denied that she was working and earning. It is submitted that in case the Tribunal comes to the conclusion that accident in question was caused by the offending vehicle then liability to pay compensation be fastened on the insurer as the offending vehicle was insured and R1 was having valid driving licence. It MACT No. 1289/06 5 of 25 is however denied that petitioners are entitled to any compensation.
8. National Insurance Company Ltd. (in short R3) filed written statement. It is admitted that offending vehicle was insured vide policy No. 00112504 for the period 03.09.2005 to 02.09.2006. It is however submitted that R3 will not be liable to indemnify R2 in case it is held that R1 was not holding a valid and effective driving licence at the time of accident or that deceased herself was negligent and contributed to the cause of alleged accident. It is denied that deceased was working with R.K. Tailors and earning a sum of Rs. 4,000/ per month as salary. It is further denied that petitioners are entitled to any compensation.
9. Following issues framed by my Ld. Predecessor vide his order dated 18.05.2007.
1. Whether on 22.07.2006 near Jai Ashram, Haridwar Road, Raiwala at about 2.10 p.m. deceased Prabhavati was hit by motorcycle no. HR26AA4221 and it caused her death?OPP.
2. Whether or not driver of the offending vehicle was holding valid DL? OPR1&3
3. Whether petitioners are entitled to compensation as prayed MACT No. 1289/06 6 of 25 for, if so, what amount and from which of the respondents?
4. Relief.
10. Hira Singh, husband of the deceased was examined as PW1, Rattan Pandit, proprietor of R.K. Tailors as PW2 and Vishwanath, the complainant as PW3 and thereafter petitioners closed their evidence. Respondents did not examine any witness.
11. I have carefully perused the material available on record.
12. Issue No.1 Qua Negligence.
Motor Vehicles Act does not stipulate holding a trial for petition preferred under section 166 of the Act. Under Section 168 of the Act, a Claims Tribunal holds an inquiry to determine compensation which must appear to it to be just. Strict rules of evidence are not applicable in an inquiry conducted by the Claims Tribunal. In State of Mysore Vs. S.S. Makapur, 1993 (2) SCR 943. Hon'ble Apex Court held that Claims Tribunal are not courts. Therefore they can act on any information, which they may receive. The only caution is that they should grant a reasonable opportunity to the person against whom said information is received, so that the proceedings are not MACT No. 1289/06 7 of 25 challanged on the ground of denial of reasonable opportunity.
13. In Bimla Devi and ors. Vs. Himachal Road Transport Corporation and Ors (2009) 13 SC 530, Hon'ble Supreme Court held that Claims Tribunal are required to take holistic view of the matter and that they should not insist on strict proof of an accident caused by a particular vehicle in a particular manner. It was further observed that claimants were merely to establish their case on the touchstone of preponderance of probability and not beyond reasonable doubt.
14. In National Insurance Company Pvt. Ltd. Vs. Smt. Pushpa Rana & Ors. Decided on 20th December, 2007. Hon'ble Delhi High Court noted that wife of the deceased had produced (1) certified copy of the criminal case, pertaining to involvement of the offending vehicle, (ii) charge sheet under Section 279/304A IPC against the driver, (iii) certified copy of FIR, wherein criminal case against the driver was registered; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of the deceased. It was accordingly held that these documents are sufficient proof to reach the conclusion that the driver was negligent.
MACT No. 1289/06 8 of 25
15. Complainant as PW3 deposed that on 20.07.2006 he alongwith the deceased and other devotees were going to Haridwar towards Rishikesh. They stopped at Bhandara near Jai Mata Ashram for Bhandara food. At about 4:004:15 p.m, when deceased was going for natural call on the road side, a motorcyclist hit the deceased from behind and dragged her alongwith the motorcycle upto about 1020 feet. She was rushed to the hospital. It is further stated that driver of the motorcycle was also injured and that driver of the motorcycle was driving at a very high speed and negligently. There is no crossexamination of the witness. As such his testimony to the effect that offending vehicle was being driven at a very high speed and negligently and further that it hit the deceased from behind, which resulted in causing fatal injuries to her remains unchallanged.
16. FIR was registered on the statement of the complainant. R1 was charge sheeted for offences punishable under section 279/304A IPC. Certified copies of site plan of the accident, mechanical inspection report of the offending vehicle, postmortem report of the deceased are on record. R1 has not MACT No. 1289/06 9 of 25 explained as to why he was charge sheeted for causing the said accident.
In view of the aforesaid preponderance of probability is that R1 caused the accident in question, which resulted in the death of Prabhawati. This issue is accordingly decided in favour of the petitioner and against the respondent.
17. Issue No.2 R3 in its written statement admitted that the offending vehicle was insured in the name of R2 on the date of accident, but it is submitted that it will not be liable to pay any compensation, if insured is not the registered owner of the offending vehicle and R1 did not possess valid driving licence at the time of accident.
18. This reply was therefore "play it safe" reply. Attitude of insurers to "deny everything await the award syndrome" was deprecated by Karnataka High Court in Ramakrishana Reddy Vs. Manager, HMT Ltd., 2003 ACJ 105, as under :
"We may also at this stage refer to the pernicious habit of some branches of insurance companies in filling stereotyped written statements denying all and everything.
They routinely deny the insurance, then
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alternatively plead that even if there was an insurance, there was a breach of terms of the policy, that driver did not have a valid driving licence, and lastly there was no negligence on the part of driver of the insured vehicle. They do not bother to verify whether the insurance policy covered the risk or not and whether driver had a licence or not. We recognize that insurers are sometime handicapped for want of full information, while giving instructions to their counsel and, therefore, the objections may be general in nature. We are also conscious that we cannot frown upon a party taking all permissible defences. But, applications for motor accident claims are not to be treated by insurers as normal private adversary litigation, their technical contentions can abound in pleadings and the sole intention is winning the lis. Under the policies of insurance, the insurers discharge statutory obligations towards third parties. They should do so keeping in view the objection and spirit of the Act, and the position of hapless victims of motor accidents. Insurers should balance their concerned to safeguard its financial interest with their obligations as instruments of social justice, under the Motor Vehicles Act".
"The claimants are not litigants by choice, but are constrained to approach the MACT No. 1289/06 11 of 25 Tribunal, because of death of the bread winner or injury to self, and because the owner and insurer of the vehicle involved, fail to pay the compensation. The insurer should bear in mind that the claimants are also handicapped in obtaining particulars of the insurance policy held by owner or driving licence held by the driver of the vehicle, and they solely depend upon the police for these particulars. The insurer should, therefore, verify whether there was any insurance policy or not, whether the insured was covered by insurance policy in regard to the claim or not, and whether the driver had a licence or not before filing its statement of objections and narrow down the area of controversy. If the insurers were to file " play it safe' written statements, without verifying these aspects and mechanically denying all petition averments, the trial gets delayed and the claimants are put to misery and injustly kept away from the direly needed compensation. It is time that insurers get rid of "deny everything await the award syndrome" and become responsible and responsive opponents in motor accident claims. We make it clear that the above observations are intended only for those officers of insurance companies who refuse to recognise their statutory obligations to third parties, under the insurance policies MACT No. 1289/06 12 of 25 issued to the insured".
19. In New India Assurance Co. Ltd. v. Sanjay Kumar & Ors. ILR 2007 (II) Delhi 733. It was held that initial onus to prove breach of conditions of insurance policy is on the insurance. RI & R2 are exparte. R3 could have discharged initial onus of proving absence of valid driving licence by serving a notice under Order 12 Rule 8 of the Code of Civil Procedure on R1 & R2 calling upon them to produce driving licence of R1, which was valid and effective on the date of accident and failure of R1 & R2 to respond to the notice would have fortified the case of insurance that R1 did not have a valid and effective driving licence on the date of accident and therefore it is not liable to indemnify the insured.
In absence of any evidence to the effect that there was breach of terms of the insurance policy, this issue is decided in favour of the petitioner and against R3.
20. Issue no3Qua Quantum of compensation Hira Lal, husband of deceased was examined as PW1. He deposed that his wife was employed with R.K. Tailors and that she was drawing salary of Rs. 4,000/ per month. In his cross MACT No. 1289/06 13 of 25 examination he admitted that it is correct that "certificate Ex.PW1/11 was issued on 03.03.06 but date of accident was 22.07.06. It is wrong to suggest that my deceased wife was unemployed on the date of accident. I do not have any documentary proof except PW1/11 to show that my wife was earning Rs. 4,000/ per month. It is wrong to suggest that the Ex.PW1/11 is a irrelevant document. I do not have any document to show that deceased has any kind of diploma regarding stitching and tailoring. I do not have any documentary proof to show that deceased was providing financial support to the family. I can produce proprietor of R.K. Tailor where my deceased wife was working. Court observation: The service certificate bears two dates i.e 03.03.06 and 01.06.06 it was to the effect that Prabha Devi was working with R.K. Tailors and she was being paid Rs. 4,000/ p.m. Deceased was alive on the said two dates as she died only in July, 2007 whereas as per the language of the certificate indicates that it had been issued after her death and not during her lifetime".
21. Rattan Pandit, proprietor of R.K. Tailors was examined as PW2. In his crossexamination he said that Prabhawati was his employee since March, 2006 and that she did not possess any MACT No. 1289/06 14 of 25 diploma in stitching. It is further stated that she used to be paid monthly wages. No record is produced for the wages paid. No record of her attendance or leave availed by her was produced. No receipt was obtained for the salary allegedly paid in cash. The witness did not show that any appointment letter was issued to the deceased. There is no record of her appointment. There is no record of her leave or absence from duty, when she proceeded to Haridwar. Further he was unable to explain reasonably why he put two dates on certificate Ex.PW1/11. He said that "It is correct that Ex.PW1/11 it is mentioned that Prabhawati is working with me. I do not remember as to why on the said document, I put two dates i.e 03.03.06 or 01.06.06. It is correct that in the aforesaid document, I have mentioned that Prabhawati was working with me. (emphasis added by the court because deceased had died in July, 2006)".
22. Now, reference may be made to Ex.PW1/11. Ex.PW1/11 reads as under: "R.K. TAILORS SPECIALIST IN : LADIES & GENTS WEAR 278, Main Haiderpur, Delhi110088 MACT No. 1289/06 15 of 25 Dated 3.3.06 Del. Dated 01.06.06 Name Prabha Devi PARTICULARS Age 40 years Prabha Devi hamare pass kaam karte the inki tankhwa 4,000/ rupe thi".
23. Ex.PW1/11 bears two dates 03.03.06 & 01.06.06 and in it is certified that Prabha Devi was working with R.K. Tailors at salary of Rs. 4,000/ per month. In his cross examination PW3 could not explain why in the certificate Ex.PW1/11, the expression was was used because deceased was alive on both the dates i.e 03.06.06 and 01.06.06.
24. The witness had admitted that he had not maintained any record of employment of the deceased with him. He had no record to show the payment of salary allegedly paid in cash to her. He had no record to show her attendance in his shop. He had not maintained her leave record to show as to for how many days she was absent from duty. In other words there was MACT No. 1289/06 16 of 25 absolutely no evidence to prove either the employment of the deceased by PW2 or payment of any wages to her.
25. In ICICI Lombard General Insurance Company Ltd. Vs. Hari Singh & Ors. MAC APP No. 122/2011, it was urged by LRs of the deceased that she used to sell milk and milk products at her house and was earning Rs.15,000/ per month. It was contended by Ld. Counsel for LRs of the deceased that Claims Tribunal ought to have accepted the deceased's income at Rs.15,000/ per month. Since no documentary evidence with regard to deceased's profession was produced, Claims Tribunal was held right in awarding loss of dependency on minimum wages.
26. In New India Assurance Company Ltd. Vs. Maya Devi & Ors. MAC.APP.627/2011 there was no documentary evidence with regard to the employment of the deceased as a cook at M/s Aman Deep Dhaba or his salary at Rs.8,000/ per month. Dhaba was not registered with the Sales Tax/Vat Department. No register for payment of wages was maintained. No receipt regarding payment of any salary to the deceased was produced. In absence of any evidence regarding employment of the deceased with the said Dhaba or his salary at Rs.8,000/ per MACT No. 1289/06 17 of 25 month, Hon'ble High Court vide its order dated 27.08.2012 observed: "In the absence of any evidence with regard to the deceased's income, the only option left is to award loss of dependency on minimum wages of an unskilled worker which, at the time of accident were Rs.3683/ per month".
27. In absence of any wages register, attendance register, leave register or receipt showing payment of salary to the deceased testimony of either PW1 or PW2 regarding occupation of the deceased or her income do not inspire confidence. As such loss of dependency has to be calculated on minimum wages.
28. In Royal Sundaram Alliance Insurance Co. Ltd. v. Master Manmeet Singh & Ors., MACT. APP.590/2011, decided on 30th January, 2012. Hon'ble Justice G.P. Mittal laid down following guidelines to calculate the loss of dependency on account of gratuitous services rendered by a housewife:
(i) Minimum Salary of a Graduate where she is a Graduate.
(ii)Minimum Salary of a Matriculate where she is a Matriculate.
(iii) Minimum salary of a nonMatriculate in other cases.
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(iv) There will be an addition of 25% in the assumed income in (i), (ii) and (iii) where the age of the homemaker is upto 40 years; the increase will be restricted to 15% where her age is above 40 years but less than 50 years; there will not be any addition in the assumed salary where the age is more than 50 years.
(v) When the deceased home maker is above 55 years but less than 60 years; there will be deduction of 25% and when the deceased home maker is above 60 years there will be deduction of 50% in the assumed income as the services rendered decrease substantially. Normally, the value of gratuitous services rendered will be NIL (unless there is evidence to the contrary) when the home maker is above 65 years.
(vi) If a housewife dies issueless, the contribution towards the gratuitous services is much less, as there are greater chances of the husband's remarriage. In such cases, the loss of dependency shall be 50% of the income as per the qualification stated in (i), (ii) and (iii) above and addition and deduction thereon as per (iv) and (v) above.
(vii)There shall not be any deduction towards the personal and living expenses.
(viii) As an attempt has been made to compensate the loss of dependency, only a notional sum which may be upto Rs. 25,000/ MACT No. 1289/06 19 of 25 (on present scale of the money value) towards loss of love and affection and Rs. 10,000/ towards loss of consortium, if the husband is alive, may be awarded.
(ix) Since a homemaker is not working and thus not earning, no amount should be awarded towards loss of estate".
29. The said guidelines were reiterated in Siheshwar Mahto & Ors. v. Silakant Jha & Ors. MAC. APP. 364/2012, decided on 30th May, 2012, United India Insurance Company Ltd. v. Davinder @ Devinder Singh & Ors. MAC. APP. 881/2012, decided on 17th August, 2012 and Anirudh & Ors. v. Anil Kumar & Ors. MAC, APP, 74/2012, decided on 27th September, 2012.
30. There is no evidence of any educational qualification of the deceased. As such loss of dependency has to be calculated on minimum salary of non matriculate, which was Rs. 3464/ on the date of accident.
31. The deceased was 42 years old at the time of accident as per her election Icard, Ex.PW1/1. There is no cross examination qua this document. As such there will be addition of 15% in her assumed salary.
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32. On the question whether any deduction is to be made from the value of gratuitous services rendered by a home maker, Hon'ble Justice G.P. Mittal in Royal Sundaram (Supra) observed as follows:
29. While awarding compensation for loss of gratuitous services rendered by a homemarker the Claims Tribunals or the Court simply Value the services. It goes without saying that the husband looks after the wife and some amount is definitely spent on her maintenance. But, whether that amount is liable to be deducted from the value of the gratuitous services rendered by her?
30. As held in Gobald Motor Service Ltd.
and Helen C. Rebello that while estimating damages, the pecuniary loss has to be arrived at by balancing on the one hand the loss to the Claimants of the future pecuniary benefits that would have accrued to him with the gain of the pecuniary advantages which comes to him from whatever sources by reason of the death.
31. In, Regna v. Williamson, the learned Judge found that the expenditure on the deceased housewife was 10 per week. While the value of gratuitous services rendered by her was 22.50 per week. The figure on dependency of 12.50 ( 22.50 10.0) was taken as 21.50 per week. Thus, the amount spent on personal living expenditure was not really deducted in Regan v. Williamson.
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32. Even on the basis of Gobald Motor Service Ltd. and Helen C. Rebello, the pecuniary advantages which the Claimant gets on account of accidental death is only liable to be deducted. The amount of money paid on account of death by the Life Insurance Corporation was held to be not deductable in Helen C. Rebello.
33. Thus, if a deceased housewife who lost her life in a motor accident would have died a natural death, the pecuniary advantage on account of savings made of the expenditure required for her maintenance would have otherwise also accrued to the benefit of the Claimants. Since this pecuniary advantage does not become receivable only on account of accidental death. In my view, the portion of the husband's income (spent on the deceased's maintenance) cannot be deducted.
33. Accordingly, there has to be no deduction towards personal and living expenses.
Calculation of compensation
Minimum Wages Rs.3464/
Addition of 15% Rs.3464 +520 = 3984
The loss of dependency comes to Rs.6,69,312/ (Rs. 3984X12X14 )
34. Rs. 25,000/ is awarded towards love and affection. Rs.
MACT No. 1289/06 22 of 25 10,000/ is granted towards loss of consortium and Rs. 10,000/ is awarded towards funeral expenses.
35. The over all compensation thus comes to Rs. 6,64,312/ (7,14,31250,000/) after deduction of interim award.
36. R3 is, accordingly directed to deposit the awarded amount of Rs.6,64,312with interest at the rate of 7.5 % per annum from the date of filing of the petition till its deposit with Union Bank of India, Sector9, Rohini Delhi through its Branch Manager in the accounts to be opened by the petitioners, within 30 days from today.
37. In view of the judgment in General Manager, Kerala State Road Transport Corporation Vs. Susamma Thomas & Others, 1994 (2) SC, 1631 for appropriate investments to safeguard the amount from being frittered away by the beneficiaries owing to their ignorance, illiteracy and being susceptible to exploitation, following arrangements are hereby ordered:
38. An amount of Rs. 1,50,000 each be given to petitioner no.2 and 3. Rs. 2 lac be given to petitioner no.4 Remaining amount of Rs. 1,64,312/ be given to petitioner No.1.
39. Rs. 64,312/ be released to petitioner no. 1 out of his share.
MACT No. 1289/06 23 of 25 Remaining amount of Rs. 1 lac be kept in two FDRs of Rs. 50,000/ each (FDR of Rs.50,000/ for one year, FDR of Rs. 50,000/ for two years). Entire amount of Rs. 2 lacs of petitioner no.4 be kept in four FDRs of Rs.50,000/ each.(FDR of Rs. 50,000/ for one year, FDR of Rs.50,000/ for two years, FDR of Rs.50,000/ for three years and FDR of Rs.50,000/for four years). The entire amount of petitioners no. 2 & 3 be kept in three FDRs of Rs. 50,000/ each ( FDR of Rs.50,000/ for one year, FDR of Rs.50,000/ for two years, FDR of Rs.50,000/ for three years in their names).
The fixed deposit on its maturity may be renewed at the discretion of the petitioner or deposited in his/her saving bank accounts.
40. The interest on the aforesaid fixed deposits shall be paid monthly by automatic credit of interest in the Saving Account.
41. The LRs of deceased shall not be having any facility of loan or advance on these FDRs. However, in case of emergent need, they may approach this court for premature withdrawal of amount.
42. No cheque book be issued to the petitioners without the MACT No. 1289/06 24 of 25 permission of this court.
43. The Bank shall issue Fixed Deposit Pass Book instead of the FDRs to the LRs of deceased and the maturity amount of the FDRs be automatically credited to the Saving Bank Account of the beneficiaries at the end of the FDRs.
44. On the request of the petitioners, Bank shall transfer the Saving Account to any other branch according to their convenience.
45. The LRs of deceased shall furnish all the relevant documents for opening of the Saving Bank Account to the Branch Manager of the said bank. No joint account be opened in their names.
46. Copy of this order be given to parties for compliance. Copy of this order be also sent to Branch Manager of the said bank.
47. The petition is accordingly disposed of. File be consigned to record room.
Announced in the open Court
today i.e.10.12. 2012 Judge MACT
Rohini Courts, Delhi
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