Delhi District Court
Ms. Urmila Mishra vs Sh. Jamir Hassan (Driver) on 14 July, 2020
IN THE COURT OF MS. SHUCHI LALER, PRESIDING
OFFICER-MOTOR ACCIDENT CLAIMS TRIBUNAL,
SHAHDARA DISTRICT, KKD, DELHI
MACT No. 151/17
In the matter of:
1. Ms. Urmila Mishra
W/o Sh. Vinod Mishra
2. Sh. Vinod Mishra
S/o Sh. Ram Chandra Mishra .... Petitioners
R/o Harirampur, Phaphamau,
Soraon, Allahabad, U.P.
Versus
1. Sh. Jamir Hassan (Driver)
S/o Sh. Hakimuddin Ali
R/o Rathoda,
Bhagpat, UP .... Respondent no. 1
2. Sh. Ankit Jain (Owner) S/o Sh. Pradeep Jain, R/o H.No. 1/9472, Gali No.7, West Rohtash Nagar, Shahdara, Delhi-110032 .... Respondent no. 2
3. National Insurance Company Ltd.
Division No. VI:2E/9,
Jhandewalan Extension,
New Delhi -110055 .... Respondent no. 3
MACT No. 151/17 Ms. Urmila Mishra Vs. Sh. Jamir Hassan & Ors. Page No 1 of 20
Date of Institution of petition : 22.02.2017
Date of Arguments : 07.07.2020
Date of Judgment : 14.07.2020
AWARD
1. By way of this award, the claim petition under Section 166 & 140 of Motor Vehicle Act, 1988 filed by the petitioners would be decided. This claim petition arise out of an accident which took place on 05.06.2016 at about 4 am, in front of Begrajpur, Medical College, P.S. Masoorpur resulting in death of son of petitioners, namely, Sh. Raj Prakash.
2. The case of petitioners, in brief, is that on 05.06.2016 at about 4.00 am, the deceased Sh. Raj Prakash was going from Delhi to Haridwar in his car bearing no. DL 8CS 5732 along with Sh. Sachin and other persons. The deceased stopped his car on left side of Kachha Road, in front of Begrajpur Medical College, P.S. Masoorpur with the indicators ÓN'. He came out of car, suddenly, a Bus bearing registration no. UP 16BT 9852 came from behind at a high speed, driven in rash and negligent manner and had hit the car and the deceased. As a result Sh. Raj Prakash sustained injuries and died at the spot. The driver of the offending vehicle ran away from the spot leaving behind his vehicle. It has been alleged that the accident took place due to rash and negligent driving of respondent no. 1.
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3. Respondent No. 1 and 2 have filed a joint reply wherein they have stated that there was no negligence on the part of respondent no. 1 / driver nor any accident ever took place with the vehicle of respondents. The vehicle of respondents has been falsely involved in the present case. The respondents have averred that the driver / respondent no. 1 was having a valid driving license and the offending vehicle was insured with the insurance company, thus, the insurance company is liable to pay the compensation, if any.
4. Respondent No. 3 / Insurance Company, in its reply denied its liability to pay the compensation on the ground that the driver of the offending vehicle / respondent no. 1 was not holding a valid and effective driving license, moreover, the offending vehicle was not having a valid permit and fitness.
5. On the basis of pleadings of the parties, issues were framed on 24.08.2017 which are as under:
(i). Whether respondent No. 1 was driving vehicle bearing no. UP-16BT-9852 on 05.06.2016 at 4.00 am in front of Beg Rajpur Medical College, PS Masoorpur in a high speed and in a rash and negligent manner and hit against car bearing no. DL-8CS-5732 when deceased came out of the car to check it as a result deceased Raj Prakash sustained fatal injuries? OPP
(ii). Whether the petitioners are entitled for any compensation, if so and for what amount ? OPP MACT No. 151/17 Ms. Urmila Mishra Vs. Sh. Jamir Hassan & Ors. Page No 3 of 20
(iii). Relief.
6. In order to establish their case, petitioner no. 2 Sh. Vinod Mishra stepped into the witness box as PW1 and tendered his evidence by way of affidavit which is Ex.PW1/A. He has relied upon the documents such as copy of Aadhar Card of petitioner no.1 as Ex.PW1/1; copy of his Aadhar Card as Ex.PW1/2; ID Proof as Ex.PW1/3; copy of his Pan Card as Ex.PW1/4; 10th Class Certificate of deceased as Ex.PW1/5; Marksheet as Ex.PW1/6, copy of Pan Card of deceased as Ex.PW1/7; Marksheet of CRPF industrial Training Center as Ex.PW1/8; ID of deceased as Ex.PW1/9; Letter of Medical Examination of Constable with CRPF of Sh. Raj Prakash as Ex.PW1/10; Call Letter for written examination for the post of HC as Ex.PW1/11 and Copy of DL of deceased as Ex.PW1/12.
The eye witness Sh. Pramod Kumar was examined as PW-2 who tendered his evidence by way of affidavit which is Ex.PW2/A and he relied upon copy of his Aadhar Card as Ex.PW2/1. In rebuttal, Respondent no.3 / Insurance Company examined its employee Sh. B.S. Yadav as R3W1 who proved the Authority Letter as Ex.R3W1/1 and Insurance Policy as Ex.R3W1/2. R3W1 testified that the offending vehicle was not having valid fitness certificate on the day of accident, so Insurance Company is not liable to indemnify the insured. He further proved the verification report of Investigator as Ex. R3W1/3 (colly), Notice under Order 12 Rule 8 CPC sent to MACT No. 151/17 Ms. Urmila Mishra Vs. Sh. Jamir Hassan & Ors. Page No 4 of 20 respondent no. 1 and 2 as Ex.R3W1/4 and its Postal Receipts as Ex.R3W1/5.
7. Final arguments heard on behalf of petitioner as well as respondent no. 3 and record perused. Ld. counsel for respondent no. 1 and 2 has not preferred to address arguments.
8. Issue wise findings are as under:-
9. ISSUE NO. 1 - In an action founded on the principle of fault liability, the proof of rash and negligent driving of the offending vehicle is sine qua non. However, the standard of proof is not as strict as applied in criminal cases and evidence is to be tested on the touchstone of preponderance of probabilities. Holistic views is to be taken while dealing with the Claim Petition based upon negligence. Strict rules of evidence are not applicable in an inquiry conducted by the Claims Tribunal. Reference may be made to the judgments titled as New India Assurance Co. Ltd. Vs. Sakshi Bhutani & Ors., MAC APP. No. 550/2011 decided on 02.07.2012, Bimla Devi & Ors. Vs. Himachal Road Transport Corporation & Ors. (2009) 13 SC 530, Parmeshwari Vs. Amirchand & Ors. 2011 (1) SCR 1096 & Mangla Ram Vs. Oriental Insurance Company Ltd. & Ors. 2018, Law Suit (SC) 303.
10. The case of petitioners is that the accident took place due to negligence of respondent no. 1, as respondent no. 1, while driving bus bearing no. UP 16BT 9852 in a rash and MACT No. 151/17 Ms. Urmila Mishra Vs. Sh. Jamir Hassan & Ors. Page No 5 of 20 negligent manner, had hit the car bearing no. DL 8CS 5732 driven by Sh. Raj Prakash (deceased) while it was parked on the left side of the road, resulting in fatal injuries to Sh. Raj Prakash (deceased).
11. The petitioners examined eye witness / owner of vehicle bearing no. DL 8CS 5732, namely, Sh. Pramod Kumar Garg as PW-2. Sh. Pramod Kumar Garg, in his examination in chief tendered by way of affidavit Ex.PW2/A, testified regarding the manner of accident as under:-
"That on 05.06.2016 at about 4.00 am, I alongwith my family were going in Car No. DL- 8CS-5732 from Delhi to Haridwar. The car was being driven by driver, Sh. Raj Prakash. We stopped the car on the left side of Kachha Road in front of Begrajpur Medical College, P.S. Masoorpur with the indicator ON to check the tyres of the car and in the meantime, a Bus No. UP 16BT 9852 came from behind at a very high speed, driven most rashly and negligently and hit the car and the deceased as a result of which he received serious injuries. The deceased died at the spot. The driver of offending vehicle ran away from the place of accident leaving behind his vehicle. The accident was caused due to MACT No. 151/17 Ms. Urmila Mishra Vs. Sh. Jamir Hassan & Ors. Page No 6 of 20 high speed, rash and negligence of respondent no. 1. My statement was recorded by police."
12. PW-2 was cross examined at length by ld. counsel for Insurance Company. Relevant extract of cross examination of PW-2 is as under:-
"Raj Prakash felt that the pressure of one of the tyre of the car was less or it was punctured and, therefore, he got down from the car to check the tyres and when he was trying to sit in the car again in the meantime, the bus no. UP 16BT 9852 came from Delhi side and was going towards Hardiwar, hit the driver Raj Prakash and the driver door of the car and the right hand side portion of the car. There was not much light in the place of accident. The parking lights of the car were ON but the hazard lights were not switched on by the driver of the car. It is wrong to suggest that the car was not parked on the kaccha portion of the road but was parked on the road itself as the traffic was not heavy. We had started from Delhi at about 11.30 - 12 mid night on the intervening night of 04-05.06.2016. It is wrong to suggest that the accident occurred due to negligence of our driver Raj Prakash and not the negligence of R1. It is wrong to suggest MACT No. 151/17 Ms. Urmila Mishra Vs. Sh. Jamir Hassan & Ors. Page No 7 of 20 that I am deposing falsely regarding the manner of the accident and the amount to be paid to Raj Prakash just to help the petitioners in getting compensation. None of the occupants of the car had suffered any injury during accident. I had lodged the FIR on the same day at about 10 AM."
13. PW-2, in his cross examination, stated that there was not much light at the place of accident and that the parking lights of the car were switched ON'' by the driver of the car when the car was parked on the side of the road. Nothing came forth in the cross examination of PW-2 to doubt his veracity regarding the manner in which the accident took place.
14. The testimony of PW-2 is in consonance with the Site Plan prepared by Investigating Officer which depicts that the accident took place on the extreme left side of the road. The mechanical inspection reports of both vehicles also support the testimony of PW-2. Mechanical Inspection Report of offending vehicle i.e. bus bearing no. UP 16 BT 9852 shows that its front wind screen, front left head light, front left indicator and left side of the front bumper was damaged, from which it can be inferred that the bus hit something which was on the left side. Mechanical Inspection Report of Car bearing No. DL 8CS 5732 shows that the front right side door of the car is completely damaged and the body over the front right wheel is MACT No. 151/17 Ms. Urmila Mishra Vs. Sh. Jamir Hassan & Ors. Page No 8 of 20 also damaged. On reading the mechanical inspection reports, it can be concluded that the offending bus had hit the driver side of the victim's car while coming from backside, which is in harmony with the testimony of PW-2.
15. Hence, the testimony of eye witness / PW-2 duly supported with the FIR, Site Plan and Mechanical Inspection Reports is sufficient to conclude that the accident occurred due to rash and negligent driving of the offending bus by respondent no. 1 which resulted into death of Sh. Raj Prakash. It also stands proved that at the time of accident, the offending vehicle was owned by respondent no. 2 and insured with respondent no. 3. Issue no. 1 is answered in favour of petitioners.
16. ISSUE NO. 2: - In view of finding on aforesaid issue, the petitioners are entitled to compensation, however, the quantum of compensation and the liability to pay the same etc. still needs to be adjudicated. Section 168 of the Act enjoins the claim tribunal to hold an inquiry into the claim to make an award determining the amount of compensation which appears to just and reasonable. It has to be borne in mind that the compensation is not expected to be wind fall or a bonanza nor it should be pittance. To determine the compensation in a fatal case, three facts need to be established by the claimants: (a) age of the deceased; (b) income of the deceased; and (c) the number of dependents.
MACT No. 151/17 Ms. Urmila Mishra Vs. Sh. Jamir Hassan & Ors. Page No 9 of 20
(i) Age of deceased: The age of deceased is necessary to apply the multiplier. As per the 10 th class certificate of deceased Ex.PW1/5, his date of birth was 5.12.1992 and the accident took place on 05.06.2016, accordingly, the age of deceased was 23 years at the time of accident.
(ii) Determination of Income of deceased : After deciding the age of deceased, his income needs to be determined. The father of deceased examined as PW1 deposed that at the time of accident, his son was a final year student of ITI (Electronics) and he would have earned Rs.50,000/- after completion of the course. The deceased was pursuing his final year of ITI (Electronics) Course from CRPF Industrial Training Center, Wazirabad, Delhi. The petitioners have not placed on record any document nor have examined any competent witness to prove the minimum and maximum pay packages which were being offered to ITI students of CRPF Industrial Training Center through Campus Placements. There is no material on record on the basis of which it can be inferred that the deceased could have earned a salary of Rs.50,000/- per month. Considering the academic record of deceased, the institute from which he was pursuing his ITI Course and the fact that he had the aspiration to join CRPF as Head Constable for which he had also cleared the physical examination, it can be inferred that even if he would not have cleared the CRPF examination, he would have worked in a Private Sector and MACT No. 151/17 Ms. Urmila Mishra Vs. Sh. Jamir Hassan & Ors. Page No 10 of 20 would have earned at least Rs.15,000/- per month. Thus, the annual income of deceased comes to be Rs.1,80,000/-.
(iii) Number of dependents : The instant claim petition has been filed by two petitioners. Petitioner No. 1 is the mother and petitioner no. 2 is father of deceased. Petitioner no. 2, admittedly, is employed with CRPF. Though the deceased is survived by both his parents, only his mother would be considered to be his dependent. (Reference may be made to judgment of Sarla Verma & Ors. vs. Delhi Transport Corporation & Anr., (2009) 6 SCC 121.
(iv) Multiplier applicable in this case - As the age of the deceased has been ascertained, an appropriate multiplier has to be determined. The judgment titled as Sarla Verma v. DTC, (2009) 6 SCC 121 is relevant to consider the multiplier. Para 21 of the judgment has laid down the multiplier as per age as under:-
MULTIPLIER AGE GROUP OF DECEASED
M-18 Age groups between 15 to 20 and 21 to
25 years)
M-17 Age groups between 26 to 30 years,
M-16 Age groups between 31 to 35 years,
M-15 Age groups between 36 to 40 years,
M-14 Age groups between 41 to 45 years,
MACT No. 151/17 Ms. Urmila Mishra Vs. Sh. Jamir Hassan & Ors. Page No 11 of 20 M-13 Age groups between 46 to 50 years, M-11 Age groups between 51 to 55 years, M-9 Age groups between 56 to 60 years, M-7 Age groups between 61 to 65 years M-5 Age groups between 66 to 70 years.
In view of the above said judgment, a multiplier of 18 has to be applied against 23 years of age of the deceased to determine the compensation.
(v) Necessary deductions out of earnings of the deceased towards personal expenses: After choosing the age, multiplier and income of the deceased, necessary deductions have to be made out of the income of the deceased towards his personal expenses. Hon'ble Supreme Court in case titled as Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65, in Para 30, has laid down the necessary deductions towards personal living and expenses of deceased as under:
Number of Deductions out of earning of the deceased. dependents Half / ½ Where dependent is 1 1/3rd Where the number of dependent family members is 2 to 3 1/4th Where the number of dependent family members is 4 to 6, MACT No. 151/17 Ms. Urmila Mishra Vs. Sh. Jamir Hassan & Ors. Page No 12 of 20 1/5th Where the number of dependent family members exceeds 6 (six).
The mother was dependent upon deceased. As there is only one dependent of the deceased, 1/2 earnings of the deceased has to be considered towards deductions out of his yearly earnings. As such, 1/2 amount out of annual income of Rs.1,80,000/- i.e. Rs.90,000/- p.a. has to be reduced towards personal expenses. Thus, the deceased was earning Rs.90,000/- after deduction of 1/2 amount towards personal expenses.
(vi) Future prospects : Besides it, future income of the deceased is also to be considered in view of judgment of Hon'ble Apex Court titled as National Insurance Company Limited vs. Praney Sethi & Ors, SLP (Civil) No. 25590 of 2014 decided on 31.10.2017 in which it is observed as under:-
"(iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary MACT No. 151/17 Ms. Urmila Mishra Vs. Sh. Jamir Hassan & Ors. Page No 13 of 20 should be read as actual salary less tax.
(iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years.
An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.
(viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs.15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years."
In view of the above said judgment, 40% amount is to be considered towards future income of the deceased who was aged around 23 years but had no permanent employment.
(vii) Loss of Dependency : It has been observed that the deceased was earning Rs.90,000/- p.a after 1/2 deduction. This annual income has to be multiplied by a multiplier of 18 as per Sarla Verma v. DTC (supra). Rs.90,000/- x 18 = Rs.
MACT No. 151/17 Ms. Urmila Mishra Vs. Sh. Jamir Hassan & Ors. Page No 14 of 20 16,20,000/-. Thereafter, 40% income towards future income of the deceased has to be added in terms of National Insurance Co. v. Pranay Sethi (Supra) i.e. Rs.6,48,000/- has to be added to above said amount i.e. Rs.16,20,000/- + Rs.6,48,000/- = Rs. 22,68,000/-.
(viii) COMPENSATION UNDER NON PECUNIARY HEADS:
In view of judgment of Hon'ble Supreme Court in the case titled as Satinder Kaur@Satwinder Kaur & Ors. Vs. United India Insurance Co. Ltd. Civil Appeal No. 2706 of 2020, dated 20.06.2020, loss of consortium has to be fixed for Rs. 40,000/- for each petitioner. Further, Rs. 15,000/- each has to be awarded for loss of estate and funeral expenses. Thus a total sum of Rs. 1,10,000/- (40,000/- X 2 + 15,000/- + 15,000/-) is granted under this head.
In view of this, petitioners shall be entitled for total compensation of Rs.23,78,000/- (Rs.22,68,000/- + Rs.1,10,000/-).
17. The total compensation awarded to petitioners is summarized as under:-
1. Loss of dependency / Contribution Rs.22,68,000/- to family:
2. Loss of Estate: Rs.15,000/-
3. Loss of consortium : Rs.80,000/-
MACT No. 151/17 Ms. Urmila Mishra Vs. Sh. Jamir Hassan & Ors. Page No 15 of 20
4. Funeral Charges Rs.15,000/-
Total = Rs.23,78,000/-
18. LIABILITY: Now, the question arises as to which of the respondent is liable to pay the compensation amount. The respondent no. 1 is the principal tort feasor, being driver and respondent no. 2 is vicariously liable, being the owner of the offending vehicle. However, the offending vehicle was insured at the time of accident and the insurance company has contractual and statutory liability to indemnify the insured. In the instant case, there has been a violation of the terms and conditions of the insurance policy. The insurance company has successfully established that the respondents were plying the offending vehicle on road without valid fitness certificate. The employee of Insurance Company examined as R3W1 deposed that the vehicle was not having any valid fitness certificate on the date of accident. He duly proved the service of notice under Order 12 Rule 8 CPC Ex.R3W1/4 upon respondents. Despite receipt of the legal notice, respondents neither replied to the notice nor preferred to file the fitness certificate on record. The offending bus being a commercial vehicle, the respondents were duty bound to ply the same on road after procuring valid fitness certificate from the competent authority. Since the respondents failed to produce the valid fitness certificate, it stands proved that the offending vehicle was not being plied on MACT No. 151/17 Ms. Urmila Mishra Vs. Sh. Jamir Hassan & Ors. Page No 16 of 20 road in strict compliance of Motor Vehicles Act, consequently, the respondents, cannot avail the benefit of indemnity clause under the Insurance Policy. Non production of valid fitness certificate amounts to breach of terms and conditions of Insurance Policy Ex.R3W1/2. Accordingly, respondent no. 3 is liable to pay this compensation with right of recovery from respondent no. 1 and 2 jointly or severally. RELIEF:
19. In view of findings on the aforesaid issues, the Tribunal awards a compensation of Rs.23,78,000/- (Rs.40,000/- to petitioner no. 2 + Rs.23,38,000/- to petitioner no. 1) alongwith interest @ 9% p.a. from the date of filing of the petition till its realization to be paid by respondent no. 3 within 30 days from the date of this award, with right of recovery from respondent no. 1 and 2 jointly or severally. The interim compensation, if any, shall be adjusted against this award amount along with the waiver of interest, if any as directed by the Tribunal during the pendency of this case. Respondent No. 3 is directed to give notice regarding deposit of the said amount to the petitioners and their counsel. RELEASE:
20. Out of the awarded amount, Rs.40,000/- be released directly into Saving Bank Account of petitioner no.2 and Rs.3,38,000/- is directed to be released into the saving account of the petitioner no. 1, namely, Ms. Urmila Mishra.
MACT No. 151/17 Ms. Urmila Mishra Vs. Sh. Jamir Hassan & Ors. Page No 17 of 20 Remaining amount of Rs.20,00,000/- is directed to be kept with UCO Bank, Karkardooma Courts, Delhi in Motor Accident Claims Annuity Deposit (MACAD) in the form of 100 (Hundred) monthly fixed deposit receipts (FDRs) payable in equal amounts for a period of 1 to 100 months in succession, as per the scheme formulated by Hon'ble Delhi High Court vide order dated 07.12.2018 in FAO No. 84/2003, titled as Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors. The amount of FDRs on maturity would be released in petitioner's Saving / MACT Claims SB Account. The interest on the above said FDRs shall be credited automatically through ECS in the saving account of the petitioner near to her residence. FDRs amount shall be paid on maturity basis in the same account of the petitioner no. 1 against which interest amount is being credited through ECS. The original FDRs shall be retained by the bank in the safe custody. However, the statement containing FDRs numbers, FDRs amount, date of maturity and maturity amount shall be furnished to the claimant.
20.1 No loan, advance or withdrawal / pre-mature discharge shall be allowed on the above-said FDRs without the permission of this Tribunal. The bank shall not open any joint account of the petitioner. The petitioner no. 1 / claimant shall be at liberty to withdraw and utilize the amount released in her account through withdrawal form or biometric authentication.
MACT No. 151/17 Ms. Urmila Mishra Vs. Sh. Jamir Hassan & Ors. Page No 18 of 20 20.2 The withdrawal from the aforesaid bank account of the petitioner / claimant shall be after due verification by the bank and the bank shall issue photo identity card to the petitioner no.1 to facilitate the identity. 20.3 No cheque book or debit card shall be issued to the claimant / petitioner without the permission of this Tribunal. In case the debit card and / or cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount. The bank shall freeze the account of the claimant so that no debit card be issued in respect of the account of the claimant from any other branch of the bank. The bank shall make an endorsement on the passbook of the claimant to the effect, that no cheque book and / or debit card have been issued and shall not be issued without the permission of the Court.
20.4 The Manager, UCO Bank or of any other bank as desired by the claimant shall open the saving bank account of the claimant or transfer to their existing account, if any, near to her residence after taking relevant documents. The petitioner no. 1 shall furnish all the relevant documents for opening of the saving bank account and FDRs to Nodal Officer, UCO Bank, KKD, Delhi.
With these observations, the claim petition stands disposed off.
MACT No. 151/17 Ms. Urmila Mishra Vs. Sh. Jamir Hassan & Ors. Page No 19 of 20 A copy of this award be sent to the parties through email. Ahlmad is directed to send a copy of award to Ld. MM concerned and DLSA, Shahdara.
File be consigned to Record Room and a separate file for compliance be maintained for 31.08.2020.
SHUCHI Digitally
signed by
LALER SHUCHI LALER
Announced in open court (SHUCHI LALER)
On 14.07.2020 PO-MACT/SHAHDARA
KARKARDOOMA COURTS,
DELHI
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