Delhi District Court
Mact No. 139/12/11 Smt. Dhanpati & Ors. vs . General Manager Haryana Roadways & ... on 30 October, 2012
IN THE COURT OF SHRI ARUN BHARDWAJ
PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS TRIBUNALII,
DWARKA COURTS: NEW DELHI
MACT No. 139/12/11
IN THE MATTER OF :
1. Smt. Dhanpati, (Aged 47 Yrs.)
W/o Late Shri Brahm Prakash.
2. Shri Purushottam,
S/o Late Shri Brahm Prakash.
3. Ms. Neeru Lata, (Aged 25 Yrs.)
D/o Late Shri Brahm Prakash.
4. Ms. Deepti, (Aged 17 Yrs.)
D/o Late Shri Brahm Prakash.
(being minor through mother/natural guardian).
5. Smt. Mohara Devi, (Aged 75 Yrs.)
Mother of Late Shri Brahm Prakash.
All R/o Flat No. 160, Vijay Veer Awas Yojna,
Sector 18A, Dwarka, New Delhi - 110 075.
Versus
1. General Manager,
Haryana Roadways, Depot Rewari,
Haryana.
2. Shri Nanak Chand,
S/o Shri Suraj Bhan,
R/o VPOKosli, Distt. Rewari,
Haryana.
MACT No. 139/12/11 Smt. Dhanpati & Ors. Vs. General Manager Haryana Roadways & Ors. Page 1 of 14
3. The New India Assurance Co. Ltd.,
(Regional Office No. 2)
12/1, Jiwan Rakshak Building,
Asaf Ali Road,
New Delhi - 110 002.
(Legal Department)
Filed on : 20.04.2011
Reserved on : 18.10.2012
Decided on : 30.10.2012
J U D G M E N T:
1. This is a claim petition which is filed under Section 166 and 140 of the Motor Vehicles Act, 1988 for grant of compensation.
2. Petitioner No. 1 is the widow, Petitioner No. 2 is the son, Petitioner No. 3 is the married daughter, Petitioner No. 4 is the minor daughter and Petitioner No. 5 is the mother of the deceased, Late Shri Brahm Prakash.
3. Respondent No. 1 is the owner of the offending vehicle, Respondent No. 2 is the driver and Respondent No. 3 is the insurer of the offending vehicle.
4. It is stated in this claim petition that on 17.02.2011, at about 7:00 p.m., the deceased Shri Brahm Prakash and Pandit Leela Ram were going from Lisana Village to Gokulgarh on a motorcycle. When they reached near Water Tank near the boundary of Village Gokalgarh, within the jurisdiction of P.S. Sadar, Rewari, Harayana, then a bus bearing Registration No. HR 47 9050 came from the side of Rewari and the said bus was being driven in a rash and negligent manner. The said bus came from a wrong side and hit the motorcycle on which Shri Brahm Prakash was traveling.
MACT No. 139/12/11 Smt. Dhanpati & Ors. Vs. General Manager Haryana Roadways & Ors. Page 2 of 145. It is stated that the deceased Shri Brahm Prakash and Pandit Leela Ram fell down on the road along with their motorcycle as a result of impact of the accident.
6. It is stated that the deceased was on his correct lane and was driving according to the traffic rules. The deceased sustained multiple injuries on his body. Pandit Leela Ram died on the spot and a man, who was seeing this accident, removed Shri Brahm Prakash to a Civil Hospital, Rewari, Haryana where MLC was prepared by the doctors of Civil Hospital, Rewari, Haryana and he was referred to PGI, Rohtak, Haryana. The injured Shri Brahm Prakash was removed to HWay Hospital, Rewari, Haryana where he was given treatment by the doctors from 17.02.2011 till 25.02.2011 but the doctors could not save his life and he succumbed to the injuries suffered in the accident on 25.02.2011.
7. It is stated that Shri Brahm Prakash was an exArmy man having retired from Indian Army and was getting pension of Rs. 13,500/ per month.
8. After retirement, he was working as a Security Guard with M/s. Omax Autos Ltd., Dharuhera, Haryana and was getting a salary of Rs. 6,000/ per month.
9. It is stated that the deceased was also having an agricultural land in Revenue Estate of Village Bilaspur, Haryana from and he was earning Rs. 50,000/ per annum from his agricultural land.
10. It is stated that the deceased lost his life due to negligent act of Respondent No. 2. Therefore, respondents are jointly and severally liable to pay compensation to the petitioners.
11. Petitioners have prayed for a compensation of Rs. 55 MACT No. 139/12/11 Smt. Dhanpati & Ors. Vs. General Manager Haryana Roadways & Ors. Page 3 of 14 lakhs with interest @ 24% per annum from the date of filing of claim petition till realization.
12. Respondent No. 1 stated in its written statement that no accident took place on 17.02.2011 with Bus No. HR 47 9050.
13. It is stated that a false FIR was lodged against the driver of the bus.
14. It was stated that the vehicle was insured with New India Assurance Company Limited on the date of accident and rest of the contents of claim petition were denied.
15. Respondent No. 2, the driver of the offending bus, also filed his written statement and stated that present claim petition is not maintainable and there is no cause of action in favour of the petitioners to file the claim petition seeking compensation.
16. It was denied that any accident had taken place with the offending vehicle while it was being driven by Respondent No. 2 and it was also denied that Respondent No. 2 was driving the vehicle in a rash and negligent manner.
17. Insurance company stated in its written statement that if it is proved that Bus bearing Registration No. HR 47 9050 was being driven by a person having a valid and effective driving license at the time of accident and the driver was not disqualified to hold or obtain the said license, only then the insurance company will be liable to pay the compensation.
18. It was also stated that the bus should have a valid permit and fitness certificate.
19. Rest of the contents of claim petition were denied but it was admitted that the vehicle was insured vide Policy No. MACT No. 139/12/11 Smt. Dhanpati & Ors. Vs. General Manager Haryana Roadways & Ors. Page 4 of 14 13020031100200003454 valid from 17.01.2011 to 16.01.2012 in the name of General Manager, Haryana Roadways, Rewari, Haryana.
20. From the pleadings of the parties, following issues were framed: i. Whether Sh. Brahm Prakash S/o Rattan Lal sustained fatal injuries in a motor vehicles accident dt. 17.02.2011 due to rash and negligent driving of vehicle no. HR479050 by R2?
... OPP ii. Whether the petitioners are entitled to claim compensation, if so, what amount and from whom?
.... OPP iii. Relief.
21. Widow of the deceased entered in the witness box as PW1 and stated similar facts in her evidence by way of affidavit as were already stated by her in the claim petition. Medical treatment record of the deceased was proved as Ex.PW1/1, receipts for payment given for the treatment were proved as Ex. PW1/1A, her Election Identity Card was proved as Ex. PW1/2, Election Identity Card of Shri Purushottam, Petitioner No. 2 was proved as Ex. PW1/3, electricity bill was proved as Ex. PW1/4 and certificate of service of the deceased was proved as Ex. PW1/5.
22. In crossexamination, she deposed that she is not an Eye Witness to the accident. She is getting family pension of Rs. 9,000/ per month from Army Authorities, one of the daughters of the deceased was married and son of the deceased was 2526 years of age at the time of accident: she is not having original of bill Rs. 2,13,000/ of Healthway Research & Diagnostic Pvt. Ltd. and these payments were given from MACT No. 139/12/11 Smt. Dhanpati & Ors. Vs. General Manager Haryana Roadways & Ors. Page 5 of 14 time to time in cash. She clarified that her husband was not having coverage of any Mediclaim Policy and she has not received cost of treatment incurred in Healthway Research & Diagnostic Pvt. Ltd. from any Agency like Mediclaim Policy or Employer of the deceased or Army Authorities or LIC.
23. Second witness examined on behalf of the petitioners was one Shri Sudhir who entered in the witness box as PW2.
24. He stated in his evidence by way of affidavit that on 17.02.2011, he was going to Rewari from his village for some factory work on his motorcycle. He had seen a motorcyclist going ahead of him and near Village Gokulgarh at about 7:00 p.m., a Haryana Roadways Bus bearing Registration No. HR 47 9050 came from Rewari side being driven in a rash and negligent manner, at a high speed and came in the wrong side and hit the motorcycle which due to this impact fell down on the road and motorcyclist sustained grievous injuries in this accident.
25. He stated that the offending bus also fell down in a ditch on left side of the road.
26. He deposed that he found that Shri Brahm Prakash, the motorcyclist and pillion rider Pandit Leela Ram had sustained grievous injuries.
27. He arranged a vehicle with the help of other persons and took both the injured to a Government Hospital. He deposed that his statement was recorded by the police on 18.02.2011 at Government Hospital, Rewari, Harayana and on the basis of his statement, FIR was lodged by the police being FIR No. 22/11 dated 18.02.2011 under Section 227/337/304A of IPC at P.S. Sadar, Distt. Rewari, Haryana.
MACT No. 139/12/11 Smt. Dhanpati & Ors. Vs. General Manager Haryana Roadways & Ors. Page 6 of 1428. He deposed that the accident took place due to sole negligence of driver of the offending bus.
29. In crossexamination, PW2 deposed that he could see the registration number of the offending vehicle as the same was also found at the spot of accident having fallen in a ditch. He deposed that he knew injured persons for the last five years. He deposed that he had informed the relations of the deceased who are his neighbours. He stated that the deceased was taken in a Jeep to Healthway Hospital and he had reported the matter to the police on 18.02.2011.
30. Suggestions contrary to his statement were denied by him.
31. Third witness examined on behalf of the petitioners was one Shri Rajesh Yadav, Supervisor of Healthway Research & Diagnostic Pvt. Ltd. who entered in the witness box as PW3 and produced bill dated 25.02.2011 for a sum of Rs. 2,13,000/ signed by authorized signatory. The said bill was proved as Ex. PW3/1.
32. In crossexamination, he showed authorization letter dated 01.04.2012 authorizing him to appear as a witness on behalf of the hospital. Authority letter was exhibited as Ex. PW3/D1. He stated that the bill is always given to a patient for the cost of treatment and payment is received in advance from time to time during the course of treatment. Final bill is given at the time of discharge. He deposed that final bill was given to the petitioners and they had received all the payments in cash. He denied a suggestion that the bill produced by him Ex. PW3/1 is forged and fabricated.
33. Fourth witness examined on behalf of the petitioners was one Shri Mohit, Executive, M/s. Omax Autos Ltd. who entered in the MACT No. 139/12/11 Smt. Dhanpati & Ors. Vs. General Manager Haryana Roadways & Ors. Page 7 of 14 witness box as PW4.
34. This witness produced salary statement of the deceased for the months of December, 2010, January and February, 2011 which were proved as Ex. PW4/1. The salary register was proved as Ex. PW4/2. He produced performance appraisal due on March, 2009 as Ex. PW4/3 and letter of DGM (HR) as Ex. PW4/5. He stated that the last increment was given to the deceased in the month of March, 2010 and next increment was due in March, 2011.
35. In crossexamination, he clarified that the deceased was getting uniform allowance of Rs. 1,491/ per month and increments are given to employees on the basis of performance and increments are not given automatically.
36. He deposed that when increment was given to the deceased in the year 2010, his performance was average.
37. No witness was examined by any of the respondents.
38. Arguments were addressed by Shri Manoj Rai, learned counsel for the petitioners, Shri Shaminder Kadyan, learned counsel for Respondent No. 1 and Shri P.P.S. Vohra, learned counsel for the insurance company. No arguments were addressed on behalf of Respondent No. 2.
39. Counsel for the petitioners argued that the age of the deceased at the time of accident was 48 years. He was an ExArmy man and had retired from the Indian Army and his pension was Rs. 14,525/ per month. He argued that the deceased was working as a Security Guard with M/s. Omax Autos Ltd. and was drawing a salary of Rs. 7,889/ per month. He conceded that the Petitioner No. 2 is 27 years of age and Petitioner No. 3 is married daughter of the deceased and they MACT No. 139/12/11 Smt. Dhanpati & Ors. Vs. General Manager Haryana Roadways & Ors. Page 8 of 14 were not depended on the deceased. He submitted that a sum of Rs. 2,13,000/ were spent on the treatment of the deceased in the hospital before his death.
40. Counsel for the petitioners has also relied on the fact that the driver of the offending vehicle was convicted in criminal case which shows that he was driving the vehicle in a rash and negligent manner. Certified copy of the judgment was also placed on record.
41. On the other hand, counsel for the insurance company argued that Uniform Allowance, Bonus, LTA and PF be not treated as part of salary for concluding loss of dependency. He stated that as against a pension of Rs. 14,524/, deceased would have spent one fourth on his personal expenses and contribution to the family would be Rs. 10,894/ per month. As widow of the deceased was getting a family pension of Rs. 9,000/ per month, loss of pension for petitioners would be Rs. 1,894/ per month only.
42. On the basis of pleadings of parties and evidence on record, issue wise findings are as under: ISSUE NO.1:
43. It is a settled principle law that petitioners have to prove that the offending vehicle was being driven by its driver in a rash and negligent manner. Only thereafter petitioners can get compensation under Section 166 of the Motor Vehicles Act.
44. Petitioners have examined an Eye Witness who had informed the police about the accident and on his statement, FIR was registered.
45. Testimony of PW2 shows that the accident was caused by negligent driving of driver of the offending vehicle.
MACT No. 139/12/11 Smt. Dhanpati & Ors. Vs. General Manager Haryana Roadways & Ors. Page 9 of 1446. The driver of the offending vehicle is convicted by the Ld. Judicial Magistrate, 1st Class, Rewari, Haryana vide orders dated 22.03.2012 which leaves no doubt that the driver was driving the vehicle in a rash and negligent manner.
47. Therefore, this issue is decided in favour of petitioners and against the respondents.
ISSUE NO. 2:
48. Deceased was an ExArmy man and he was getting pension of Rs. 14,525/. After his death, his wife is getting family pension of Rs. 9,000/ per month. The difference of the two pensions is Rs. 5,525/ per month.
49. The deceased was working as a Security Guard with M/s. Omax Autos Ltd. As per Ex. PW4/5, his net salary was Rs. 7,889/ per month. In this salary, uniform allowance of Rs. 1,491/ is also included. Uniform allowance cannot be treated as part of salary.
50. However, bonus of Rs. 912/, PF of Rs. 547/ are also enjoyed by the family and should be treated as part of salary. Leave Travel Allowance (LTA) of Rs. 380/ is for the benefit of the deceased which is also to be excluded from the salary. Thus calculated, the salary of the deceased drawn from M/s. Omax Autos Ltd. would be Rs. 6,018/ per month.
51. When Rs. 5,525/, which is loss of pension, is added to the income of the deceased, total financial loss for the petitioners would be Rs. 11,543/ per month.
52. Since the age of the deceased was 48 years and he was in a permanent job inasmuch as he was getting increments regularly and he had received his last increment in the month of March, 2010, in MACT No. 139/12/11 Smt. Dhanpati & Ors. Vs. General Manager Haryana Roadways & Ors. Page 10 of 14 spite of the fact that his performance was only average it can be assumed that he would have earned next increment in the month of March, 2011. As per Smt. Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr., 2009 (6) SCALE 129, 30% is to be added towards future prospects
53. After adding 30% to Rs. 11,543/, the assumed income of the deceased would be Rs. 15,005/ per month.
54. Petitioner No. 2 is aged 27 years and as Petitioner No. 3 is married daughter of the deceased, they are not to be treated as dependents on the deceased.
55. The dependents would be 3 and one third is to be deducted for personal expenses of the deceased.
56. After deducting one third for personal expenses of the deceased, contribution to the family would be Rs. 10,000/ per month.
57. The multiplier applicable will be of 13 and total Loss of Dependency would be Rs. 15,16,000/ i.e. Rs. 10,000 x 12 x 13.
58. Additionally, Petitioner No. 1 being the widow of the deceased will be entitled to Loss of Consortium of Rs. 10,000/.
59. Petitioners will be entitled to Loss of Estate of Rs. 10,000/ and Funeral Charges of Rs. 10,000/.
60. So far as, Loss of Love and Affection is concerned, Hon'ble High Court of Delhi in the case of New India Assurance Company Ltd. Vs. Bharat Singh: MAC Appeal No. 137/12, dated 08.08.2012 has held that when full compensation towards loss of dependency is granted, only a nominal sum is to be awarded towards loss of Love and Affection. The trend of the Hon'ble High Courts and the Hon'ble Supreme Court is to grant a compensation of Rs. 25,000/ for MACT No. 139/12/11 Smt. Dhanpati & Ors. Vs. General Manager Haryana Roadways & Ors. Page 11 of 14 Loss of Love and Affection. Such compensation was granted by the Hon'ble Supreme Court in the case of Sunil Sharma Vs. Bachitar Singh Singh: 2011 (11) SCC 425 and in the case of Baby Radhika Vs. Oriental Insurance Company Limited: 2009 (17) SCC 627.
61. Therefore, petitioners are awarded a compensation of Rs. 25,000/ for Loss of Love and Affection.
62. Petitioners have also spent a sum of Rs. 2,13,000/ on the treatment of the deceased before his death. This is proved from the evidence of PW3 as well as from Ex. PW3/1.
63. Petitioners are also entitled to receive this amount as Cost of Treatment from the respondents.
64. Thus, total compensation payable to the petitioners would be Rs. 17,84,000/ which shall be payable with interest @ 7.5% per annum (which is the rate of interest which is being awarded by Hon'ble High Court of Delhi at present) from the date of filing of this claim petition which is 20.04.2011 till its deposit.
65. Insurance company has not proved any defence. Therefore, compensation is to be deposited by insurance company which be deposited within 30 days from today under intimation to the petitioners by registered post.
66. So far as apportionment is concerned, following directions are passed: i. A sum of Rs. 2,13,000/ incurred on treatment of deceased before his death and Rs. 10,000/ incurred by petitioners on funeral charges of the deceased will be straightaway released along with apportionment interest in favour of the Petitioner No. 1 widow of the deceased in her Saving Bank Account to be opened at State Bank of India, Dwarka Courts, New Delhi.
MACT No. 139/12/11 Smt. Dhanpati & Ors. Vs. General Manager Haryana Roadways & Ors. Page 12 of 14ii. Balance compensation will be shared in the ratio of 35% in favour of Petitioner No. 1, 35% in favour of Petitioner No. 4, 20% compensation in favour of Petitioner No. 5 mother of the deceased and 5% each in favour of Petitioner No. 2 and 3.
iii. Compensation of widow and unmarried daughter Petitioner No. 4 will be kept in FDRs.
iv. There would be 10 FDRs of equal amount with regard to compensation of widow.
v. However, 10% compensation payable to the widow would be released in her Saving Bank Account. She would be entitled to receive monthly interest on these FDRs.
vi. So far as, compensation of Petitioner No. 4 is concerned, same would also be kept in bank FDR till she attains the age of 21 years.
vii.She would be entitled to take monthly interest through her mother, if so desired.
viii.Compensation of Petitioner No. 5 will be kept in 5 FDRs of equal amount ranging for a period of 15 years. She will be given quarterly interest if so desired.
ix. Compensation of petitioner No. 2 and 3 shall be kept in Bank FDR for a period of one year.
x. Compensation will be deposited by insurance company directly with SBI, Dwarka Courts, New Delhi.
xi. Compensation cheques will be in the names of SBI A/c Smt. Dhanpati, SBI A/c Shri Purushottam, SBI A/c Ms. Neeru Lata, SBI A/c Ms. Deepti and SBI A/c Smt. Mohara Devi.
xii.All the original FDRs shall remain with the bank. Only MACT No. 139/12/11 Smt. Dhanpati & Ors. Vs. General Manager Haryana Roadways & Ors. Page 13 of 14 copies thereof will be given to the petitioners. However, pass books will be given to the petitioners. No cheque book shall be issued to any of the petitioners.
xiii.No loan or advance will be given against these deposits.
xiv.FDRs shall not be prematurely encashed without leave of this Tribunal.
xv. Petitioners shall cooperate with the bank by providing requisite documents and by completing required formalities for opening Saving Bank and FDR Accounts.
67. Copy of this order be given dasti to all the parties.
68. A copy of this order be also sent to the State Bank of India, Dwarka Courts, New Delhi.
69. File be consigned to the Record Room.
Announced in the open Court On the 30th Day of October, 2012.
(ARUN BHARDWAJ) PRESIDING OFFICER MOTOR ACCIDENTS CLAIMS TRIBUNALII DWARKA COURTS: NEW DELHI MACT No. 139/12/11 Smt. Dhanpati & Ors. Vs. General Manager Haryana Roadways & Ors. Page 14 of 14