Delhi District Court
Smt. Shamim Bano vs Sh. Vijit Vinod Nautiyal S/O Sh. Vinod ... on 13 November, 2013
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IN THE COURT OF MS. PREETI AGRAWAL GUPTA:
ADJCumJUDGE: MACT1 (NORTH): ROHINI: DELHI
Suit No. 178/13
1. Smt. Shamim Bano
W/o Late Aman Ulla @ Aman Wallan Khan @ Pappu
2. Atta Ulla
S/o Late Aman Ulla @ Aman Wallan Khan @ Pappu
3. Kasim
S/o Late Aman Ulla @ Aman Wallan Khan @ Pappu
4. Smt. Sirzan Begum W/o Mohd. Sultan Khan
5. Mohd. Sultan Khan S/o Late Bahadur Shah
Petitioners no. 1 to 3 are R/o H. No. 1909,
J Block, Jahangir Puri, Delhi110033.
Petitioners no. 4 & 5 are residents of
D/193, Swami Shardhanand Park,
Bhalaswa Dairy, Delhi110042.
....Petitioners
Versus
1. Sh. Vijit Vinod Nautiyal S/o Sh. Vinod Nautiyal
R/o 12D, Platinum Enclave,
Sector18, Rohini, Delhi.
2. Sh. Vinod Prasad S/o Sh.Purshotam Nautiyal
R/o 12D, Platinum Enclave,
Sector18, Rohini, Delhi.
Case No. 178/13 Shamim BanoVs. Vijit Vinod
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3. IFFCO TOKIO GENERAL INSURANCE CO. LTD.
4th FLOOR , Naraina Manzil,
23, Barakhamba Road, Connaught Place,
New Delhi.
....Respondents
DATE OF INSTITUTION : 09.05.2013
JUDGMENT RESERVED ON : 13.11.2013
DATE OF JUDGMENT : 13.11.2013
AWARD:
1. The present claim petition arises out of the Detailed Accident Report (DAR as per directions of the Hon'ble High Court of Delhi in Rajesh Tyagi Vs. Jaibir Singh; II(2010) ACC 781) filed by the Investigating Officer upon which a reasoned response has been filed by the Insurance Company. A formal claim petition has also been filed and taken up with DAR petition for determination of just and reasonable compensation payable to the L Rs of the deceased victim Aman Ulla @ Aman Wallan Khan aged 43 years who is stated to have unfortunately died in the road accident. The claim is being perused on behalf of L Rs of married male deceased to elucidate the facts and circumstances pertaining to the deceased.
2. Briefly stating the facts of the case, on the unfortunate day of Case No. 178/13 Shamim BanoVs. Vijit Vinod :3: 22.04.2013 while the deceased was paddling his bicycle and when he reached at about 1.10 p.m. at G.T.Road, in front of Main Mohan Vilash Farm House, Delhi in the meanwhile a car bearing registration no. DL8CV2403 being driven by its driver/respondent at a very high speed came from G.T.Road, Alipur side towards bypass side and struck against the bicycle of the deceased, as a result of which, the deceased fell down on the road and sustained grievous injuries resulting into fatal injury. The victim was removed to BJRM hospital where he was declared "brought dead". FIR No. bearing no. 120/13 U/s 279/304A IPC was registered at PS Swaroop Nagar against the alleged driver/accused of the offending vehicle. Charge sheet against the driver/accused U/s 279/304A CPC is enclosed with the DAR. Postmortem report no. 308/13 dt. 23.04.2013 in respect of the deceased is also filed. The road accident in question has led to unfortunate and untimely death of deceased for which the petitioners who are the L Rs of deceased have suffered irreparable losses, both mental as well as pecuniary.
3. As such, it is admitted that the offending vehicle in question was duly insured with the insurance company in question. Written reasoned reply/offer of settlement has been given by the insurance company. However, ld. Counsel for petitioner submits Case No. 178/13 Shamim BanoVs. Vijit Vinod :4: that the computation of compensation is deficit as it has not accounted for future prospects and prays that an award be passed in accordance with law, as the petitioners are not willing to settle the case as per the offer of insurance company. It is also prayed that compensation under the nonpecuniary head be also granted as per law. As already stated herein above, it is admitted that the offending vehicle was duly insured with it as on the date of accident. The insurance company has not claimed any statutory breach U/s 149 (2) of the M.V.Act and has admitted its liability to pay, though, expressing inability to make any enhance offer in conciliation.
4. The court has duly appreciated the directions and law laid down by the Hon'ble Apex Court and our own Hon'ble High Court laying down guidelines for the MACT Courts in respect of summary procedure to be followed. The Hon'ble Supreme Court of India in 1 (2010) ACC A SC in Rajesh Tyagi Vs. Jaibir Singh laid down the duty upon the Motor Accident Tribunal for summary enquiry to ascertain the dependent family members/legal heirs . The jurisdictional police has also been casted upon with the responsibility to enquire and submit the names of the dependent Case No. 178/13 Shamim BanoVs. Vijit Vinod :5: legal heirs. It was also directed by the Hon'ble Apex Court that 'wherever the insurer does not dispute the liability under the policy, the Tribunal shall make an endeavour to determine the compensation amount by a summary enquiry.
The Hon'ble High Court held in MANU/DE/1064/2010 in Mayur Arora Vs. Amit that"the inquiry contemplated under section 168 of the Motor Vehicle Act, 1988 is different from a trial. The inquiry contemplated under section 168 of the Motor Vehicles Act arises out of a complaint filed by a victim of the road accident or an AIR filed by the police under section 158 (6) of the Motor Vehicle Act. These provisions are in the name of social welfare legislation .... Upon receipt of report from the police or a claim petition from the victim, the Claims Tribunal has to ascertain the facts which are necessary for passing the award ......"
It has been further held with respect of nature of inquiry that "keeping in view the wording of the statute, the use of the phrase 'hold an inquiry' as also particularly the Case No. 178/13 Shamim BanoVs. Vijit Vinod :6: absence of the word 'trial' and; the larger purpose of the statute as demonstrated by the Statement of Objects and Reasons; observation into what has gone on; the type of the claimants; the type of the issues; and the need to bring about efficiency, procedure as are tailored to the subject has to be evolved by the Claims Tribunal.
If following this procedure which is generally collection of documents, a case appears to be one which can be disposed of at the first hearing, it should be so disposed of. There can, however, be cases where there is need for further inquiry. But that will have to depend upon whether a sufficient defence has been raised.
If the case needs further inquiry, the court may frame issues. Issues help as a signpost to how the matter has be proceeded with. They are signposts of topics ( facts). However, before the issues, if a prefatory note on the facts which are not in dispute or not sufficiently in dispute or facts that can be taken judicial notice of, is made, the controversy stands narrowed down, the issues are more accurately Case No. 178/13 Shamim BanoVs. Vijit Vinod :7: framed and serve a greater purpose".
5. In view of the binding law of the land, the present case does not require any further enquiry for complete and final adjudication of just and reasonable compensation to the L.Rs of the deceased victim. The court has formally framed the issues required for summary disposal of the case:
1.Whether the deceased Aman Ulla @ Aman Wallan Khan @ Pappu S/o Mohd. Sultan Khan received fatal injuries in the motor vehicle accident occurred on 22.04.2013 at about 1.10 p.m. at G.T.Road, in front of Main Mohan Vilash Farm House Delhi within the jurisdiction of P.S: Swaroop Nagar, due to rash and negligent driving of R1 of vehicle No DL8CV2403? OPP.
2.Whether the petitioners are entitled to compensation as prayed for, if so to what extent and from which of the respondents? OPP.
3.Relief.
6. The submissions and offer of settlement on behalf of insurance company has been perused whereby an enhanced offer Case No. 178/13 Shamim BanoVs. Vijit Vinod :8: of Rs. 12,09,256/ has been made for full and final settlement of the claim, after taking into account, the unskilled category of minimum wages as applicable to the deceased. Ld. counsel for L Rs /petitioners submits that an award in accordance with well settled law be passed, as per law, in terms of the material and averments on record. It is prayed that there is no dispute on merits as per the offer of settlement filed by the insurance company. It is conceded that the L Rs are willing for expeditious disposal of their claim, as per law. It is prayed that since there is no breach in the terms and condition of insurance policy of the offending vehicle, an award be passed , as per law. It is, however, prayed that the deceased aged 43 years was married and besides leaving behind widow and he is also survived by his parents and two major sons. It has been duly considered that both the parents of the deceased are above 75 years of age and hence, petitioners. Both sons of the deceased are however, major and married and hence, not dependent. It is prayed that addition on account of 'future prospects' under the head "loss of dependency" be granted, in terms of the latest binding law laid down by the Hon'ble Supreme Case No. 178/13 Shamim BanoVs. Vijit Vinod :9: Court in Rajesh & Ors. Vs. Rajbir Singh & Ors.; 2013 ( 6) SCALE ( pronounced by the Hon'ble Apex Court vide orders dt. April 12, 2013 ). On the other hand, the insurance company has placed reliance on the pronouncement of the Hon'ble Supreme Court in Reshma Kumari & Ors. Vs. Madan Mohan & Anr. Arising out of civil appeal no. 4646 of 2009 and 4647 of 2009 dt. 02.04.13 and has prayed for disposal of the claim without addition of future prospects.
7. It is duly appreciated that the present case involves the death of victim Aman Ulla @ Aman Wallan Khan @ Pappu aged about 43 yrs., in the road accident in question. DAR has been filed by the investigating officer with widow, two sons and parents as L Rs of the deceased. All verifications are proper. Offer of settlement has been filed on behalf of the insurance company and the offer has also been filed with the appropriate multiplier. During the course of submission and conciliation, the insurance company has not made any offer on account of future prospects. Accordingly, the case has been taken up for passing the award as no further enquiry is necessary for just and proper adjudication of Case No. 178/13 Shamim BanoVs. Vijit Vinod :10: the claim.
8. In this regard, statement of counsel for L Rs/ petitioners and the counsel for Insurance Company have been recorded separately. Ld. Counsel for insurance company has filed written reasoned reply/offer with enhanced offer in view of the appropriate category to the deceased. The verifications are admitted as per DAR report . The offer of settlement is tendered as Ex.R1. Ld. Counsel for insurance company prayed that in the facts of the accident in question, there is no contest in light of any facts of the case and it is also admitted by the insurance company that as there is no legal breach U/s 149 (2) of M.V.Act, an appropriate award be passed, as per law. In view of the statements recorded , there is no further requirement of any evidence or examination of the witness owing to undisputed facts clearly available to be adjudicated before the Court.
9. This court is accordingly governed and guided by the aforesaid principles of law in effective and expeditious determination of the present inquiry.
ISSUE NO. 1:
Whether the deceased Aman Ulla @ Aman Wallan Khan @ Pappu S/o Mohd. Sultan Khan received fatal injuries in the motor vehicle Case No. 178/13 Shamim BanoVs. Vijit Vinod :11: accident occurred on 22.04.2013 at about 1.10 p.m. at G.T.Road, in front of Main Mohan Vilash Farm House Delhi within the jurisdiction of P.S: Swaroop Nagar, due to rash and negligent driving of R1 of vehicle No DL8CV2403? OPP.
10. As such, the date of accident i.e. 22.04.2013 is not disputed by any of the parties. The postmortem report bearing no. 308/13 dt. 23.04.2013 confirms the cause of death of deceased Aman Ulla @ Aman Wallan Khan @ Pappu was caused due to hemorrhagic shock consequent to blunt force impact to chest and all injuries are antemortem in nature and could be possible consequent to road traffic accident.
11. On the aspect of "rash and negligent driving"law has been well settled in this regard. The Hon'ble High Court of Delhi in National Insurance Company Ltd. Vs. Gita Bindal & Ors. in MAC APP. No. 179/2004 vide judgment dt. 12.10.2012 has passed binding guidelines on the principle of "Doctrine of Res Ipsa Loquitur". The Hon'ble High Court of Delhi have been pleased to discuss the law of Res Ipsa Loquitur and has been pleased to summarize the principles.
Case No. 178/13 Shamim BanoVs. Vijit Vinod :12:
12. It has been held that "Res ipsa Loquitur means that the accident speaks for itself. In such cases, it is sufficient for the plaintiff to prove the accident and nothing more". ...
13. The investigating officer has filed "Detailed Accident Report" in compliance of directions of Hon'ble High Court of Delhi thereby enclosing the copy of FIR No. 120/13 U/s 279/304 A, PS Swaroop Nagar. Perusal of FIR shows that the respondent no. 1 /driver of the alleged offending vehicle which is a car bearing no. DL8CV2403 has been impleaded as the accused. The mechanical inspection report in respect of the offending vehicle has been filed. The copy of final report U/s 173 Cr.P.C. against the offending driver has been filed. The charge sheet against the driver of the offending vehicle as accused U/s 279/304A IPC clearly establishes, for the purpose of this claim, that the road accident in question has been caused due to rash and negligent driving of the offending vehicle by its driver. The facts of the case are that while the deceased was going on his bicycle, he has been run over by the offending vehicle and, therefore, there is no suspicion that remains over the rash and negligent driving of the Case No. 178/13 Shamim BanoVs. Vijit Vinod :13: offending vehicle in causing the accident. The issue no. 1 is accordingly, disposed of in favour of claimant and against the respondents. It may be categorically clarified that findings on this issue shall have no bearing on the outcome of the criminal case as the yardstick of extent of proof is distinctly different in criminal trial.
ISSUE NO. 2:
Whether the petitioner are entitled to compensation as prayed for if so to what extent and from which of the respondents? OPP
14. The petitioners are legal representatives of the deceased whereby petitioner No.1 is the wife/widow, petitioners no. 2 and 3 are major sons of the deceased and petitioners No. 4 and 5 are parents of deceased who are senior citizens. Accordingly, the petitioner nos. 1,4 & 5 are entitled to just and reasonable compensation. As regards the assessment of earnings of the deceased, no income or educational proof has been tendered or sought to be proved. On account of loss of dependency, as already discussed, no proof of income by way of any document has been furnished or proved. Therefore, the income of the deceased Case No. 178/13 Shamim BanoVs. Vijit Vinod :14: is assessed as per the Minimum Wages applicable for unskilled category @ Rs. 7,722/ per month as applicable. The Hon'ble High Court of Delhi has duly considered and appreciated the various relevant decisions of the Hon'ble Supreme Court of India and discussed the applicable aspects of law pertaining to "additions" in the minimum wages on account of inflation for computation of compensation in its detailed orders dt. 19.03.2012, passed in considerable number of cases involving similar question of law alongwith MAC APP. No. 997/2011 in case titled Smt. Dhaneshwari & Anr. Vs. Tejeshwar Singh & Ors. It has been held that there shall be no addition in the minimum wages on account of inflation for computation of compensation.
15. It is further relevant to take into consideration the law laid down by Hon'ble Supreme Court in case titled Smt. Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr., SLP (C) No. 8648 of 2007, wherein it has been held that the claimants shall be entitled to addition on account of future prospects depending upon the facts of each case. Uniform guidelines have been laid down for computation of addition on account of future Case No. 178/13 Shamim BanoVs. Vijit Vinod :15: prospects depending upon the age of the deceased/disabled and nature of employment of the victim. The law has been further developed in by Hon'ble Supreme Court in its latest judgment in Santosh Devi Vs. National Insurance company Ltd. and ors. in Civil Appeal NO.,. 3723 of 2012 arising out of SLP (C) No. 24489 of 2010. The Hon'ble Division Bench of Supreme Court has observed that aspect of future prospects shall be a relevant consideration in computation of just and proper compensation even in cases where the deceased was self employed or on a fixed salary without provisions for annual increments etc. The Hon'ble Supreme Court in Santosh Devi's case (Supra) allowed the addition of 30 % on account of future prospects in such cases. Thereafter, there are two views of Hon'ble Supreme Court of India held in Rajbir's case ( Supra) relied upon by the petitioner; and Reshma Kumari's case ( Supra) relied upon the Insurance company. The matter on the aspect of inconsistency is not relevant in the facts of the present case as the deceased was between the age of ( 40 to 50 years). In this case, as the deceased was not having any fixed employment, it is appropriate and Case No. 178/13 Shamim BanoVs. Vijit Vinod :16: reasonable to follow the law laid down by the Hon'ble Supreme Court in Santosh Devi's case ( Supra), by allowing addition of 30 % on account of future prospects. The monthly income of the deceased has been assessed at Rs. 7,722/ per month. The addition on account of future prospects shall be 30% of the income of the deceased. Accordingly, the monthly income of the deceased comes out to Rs. 10,038/ per month (7,722 + 30 % of 7,722) rounded off to Rs. 10,038/.
16. In view of the aforesaid judgment, 1/3rd is to be deducted towards personal and living expenses of the deceased from his income, as he was having 3 dependents being his wife and old aged parents. It has been duly considered that another claimants who are the major sons of the deceased and applying the law laid down in Sarla Verma's Case ( Supra), they are not financially dependent. Accordingly, the monthly contribution of the deceased to his family is calculated Rs. 6,692/ per month ( 10,038 3346) after necessary rounding off.
17. The Court shall now examine the age of the deceased which is claimed to be 43 years. Same is not disputed and duly Case No. 178/13 Shamim BanoVs. Vijit Vinod :17: proved. In terms of the law of the land laid down by Sarla Verma's case, taking the age of the deceased as 43 years at the time of accident, the multiplier of 14 is applicable. The loss of dependency is therefore calculated @ Rs. 11,24,256/ (6,692 x 12 x 14).
18. In the present case, no medical expenses have been claimed as due to unfortunate demise of the deceased immediately after the accident.
19. The petitioners shall be entitled to an amount of Rs. 25,000/ is added towards funeral and miscellaneous expenses as per well settled law, which the petitioners had to incur due to the death of deceased.
20. Relying upon the judgment titled Smt. Sarla Verma & Ors Vs Delhi Transport Corporation & anr (Supra), as hereinabove, the Hon'ble High Court of Delhi vide orders dt. 19.03.2012 passed in large number of cases including case titled as Smt. Dhaneshwari & Anr. Vs. Tejeshwar Singh & Ors. has placed reliance upon the authorities of Hon'ble Supreme Court of India in Sunil Sharma Vs. Bachitar Singh (2011) 11 SCC 425 and in Baby Case No. 178/13 Shamim BanoVs. Vijit Vinod :18: Radhika Gupta V. Oriental Insurance Company Limited ( 2009) 17 SCC wherein Rs. 25,000/ ( in total to all the claimants) under the head of loss of love and affection has been granted. Also the claimants shall be entitled to an amount of Rs 10,000/ towards loss of estate. Accordingly, in the present case, the L.Rs of the deceased are entitled to a sum of Rs. 25,000/ as compensation on account of loss of love and affection. A sum of Rs. 10,000/ is also granted for loss of consortium to petitioner no. 1.
21. In this case, no interim award has been passed. Thus, the total compensation awarded to petitioners is detailed as below:
1. Loss of dependency Rs. 11,24,256/
2. Funeral & miscellaneous expenses Rs. 25,000/
3. Loss of estate Rs. 10,000/
4. Loss of love and affection Rs. 25,000/
5. Loss of consortium Rs. 25,000/ Total awarded compensation Rs. 1 2 , 09 , 256 /
22. So far as the liability to pay compensation is concerned, Case No. 178/13 Shamim BanoVs. Vijit Vinod :19: there has no violation of terms and conditions of the insurance policy. In these circumstances, respondent no. 1 being the driver is primarily liable to pay compensation. Respondent no. 2 and 3 being owner and insurer are vicariously liable to pay the compensation. Compensation is payable by respondent no. 3 being insurer, as vehicle was duly insured as on the date of accident. The issue is disposed of accordingly.
RELIEF:
23. In view of the aforesaid discussions, I hereby hold that petitioners are entitled to a sum of Rs. 12,09,256/ alongwith interest @ 7.5% per annum from the date of filing of present petition till its realization. The interim award, if any is liable to be adjusted.
24. In view of the guidelines issued by Hon'ble Supreme Court of India in "General Manager, Kerala State RTC Vs. Mrs. Susamma Thomas and Others" for appropriate investments to safeguard the amount from being frittered away by the beneficiaries owing to ignorance, illiteracy and susceptible to exploitation, the respondent No.3/insurance Case No. 178/13 Shamim BanoVs. Vijit Vinod :20: company shall be liable to pay awarded amount to the petitioners in terms of the following arrangement as ordered below:
25. Out of the award, 60 % of the awarded amount is granted to petitioner no. 1/wife. It has been duly considered that the petitioners no. 4 & 5 are senior citizens, aged above 75 years and petitioners no. 2 & 3 are major sons. Accordingly, petitioners no. 2 to 5 are granted 10 % each and divided equally between them.
26. As regards the share of wife/petitioner no. 1, 50 % out of share be kept in three FDRs for a period of 2, 5 & 10 years in equal proportions. The FDR for a period of 10 years shall have automatic renewal for the same period once.
27. The FDR's shall have no facility of loan advance or premature withdrawal, without leave of the court. However, petitioners shall have the facility to withdraw the interest monthly/quarterly as per their option.
28. In view of the aforesaid findings and in terms of the award /order of this court, the petition is disposed off in aforesaid terms. Respondent no. 3 is directed to deposit the Case No. 178/13 Shamim BanoVs. Vijit Vinod :21: cheques in the names of the claimants within 30 days before this Tribunal. Respondent No.3 is also directed to furnish certificate of TDS if applicable. File be consigned to Record Room.
ANNOUNCED IN THE OPEN (PREETI AGRAWAL GUPTA)
COURT ON 13.11.2013 JUDGE MACT: ROHINI
(NORTH): DELHI
Case No. 178/13 Shamim BanoVs. Vijit Vinod
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Suit No. 178/13
13.11.2013:
Present: None.
Vide separate detailed award, dictated and announced in the
court today, an award in sum of Rs. 12,09,256/ alongwith interest
payable from the date of petition is hereby passed in favour of the
petitioners and against the respondents with liability to pay upon the respondent no. 3/ insurance company. Respondent No.3 is directed to deposit the cheque in terms of the award within 30 days before this Tribunal. Petition is disposed of in aforesaid terms. File be consigned to Record Room.
(PREETI AGRAWAL GUPTA) JUDGE MACT:
ROHINI (NORTH): DELHI Case No. 178/13 Shamim BanoVs. Vijit Vinod