Delhi District Court
Mr Ashok Bhatia vs Mr. Arjun Lakhanpaul on 22 February, 2007
1
IN THE COURT OF V.K. MAHESHWARI:
PRESIDING OFFICER
MOTOR ACCIDENT CLAIM TRIBUNAL,
PATIALA HOUSE COURTS: NEW DELHI
Suit no.: 202/94
Date of institution: 23.03.1994
1.Mr Ashok Bhatia
S/o late Lt Gen Shiv Parshad Bhatia
R/o B-31, Greater Kailash I,
New Delhi - 110048
2.Mrs Gita Bhatia
W/o Mr. Ashok Bhatia
R/o B-31, Greater Kailash I,
New Delhi - 110048
........PETITIONERS
VERSUS
1.Mr. Arjun Lakhanpaul,
S/o late Mr. Ajay Paul,
D/7/4747, Vasant Kunj,
New Delhi.
2.M/s P C/ Paul & Sons,
Railway Road,
Saharanpur, UP.
3.United India Insurance Company Ltd,
MTPCO, Antriksh Bhawan,
Kasturba Gandhi Marg,
New Delhi.
(Dropped vide order dated 21.1.99)
.......RESPONDENTS
Arguments heard on 08.02.07.
Date of decision:22.02.07.
Amount Claimed: Rs 20 lacs AWARD:-
Case of the petitioners is that on 25.09.1993 deceased Ms Premika Bhatia was travelling in Maruti Gypsy UGX 8228 driven by respondent no. 1, when they reached on the Outer Ring Road while proceeding towards Dhaula Kuan side via Benita Zuares Marg, suddenly respondent no. 1 started driving the vehicle rashly, negligently at a fast speed when the vehicle reached to University South 2 Campus respondent no. 1 lost control over the vehicle and vehicle skidded and banged against road divider and over turned. Deceased sustained serious head injuries, even respondent no. 1 also sustained serious injuries. Police mobile van had taken the injured to Safdarjung Hospital where deceased had dead on the same day as the result of injuries received by her in this accident.
Deceased was 18 yrs of age at the time of this accident. She was a student of first year Sociology ( Hon.) in Jesus & Mary College at the time of her death in this accident. She had taken her primary education from Lawarence School Sanawar Shimla. After passing Xth standard examination she had studied in Sprindales School Dhaula Kuna for two years and passed out her 10+2 examination in first division. She was also registered for the Foundation Course of the Indian Institute of Chartered Accountants of India. She was a brilliant student throughout her academic carrier. She had shown an outstanding performance. She was having high ambitions. She was not only a brilliant student but also a good swimmer and sports girl.
Both of her parents are highly placed. Petitioner No.1 is a qualified CA, ACA England and M.A Economics. He was Chairman of ITC- Welcome Group Hotels and a Director of ITC Ltd. Petitioner No.2, mother of deceased is also a consultant of India Promotion. She is an income tax payee.3
It is pleaded in the petition that in these circumstances, there could not be any obstacle in the way of deceased in attaining the highest ambition in her life. Petitioner No.1 had planned an excellent carrier for his daughter had she been alived she would have earn an income more that Rs.2 lac a year after completing her studies.
Notice of this petition was issued to all the respondents. Respondent No.1 appeared and filed its WS denying all the grounds taken in the Petition. It is stated in the preliminary objection that present petition against respondents R.1 is misconceived and not maintainable as he was not driving Maruti Gypsy UGX-8228 at the time of this accident. Vehicle was being driven by deceased Premika Bhatia at the time of this accident. She was driving vehicle at the normal speed a stray cow all of a sudden had come in front of vehicle , in order to avoid hitting the cow deceased lost control over the vehicle which had skid and banged against road divider and vehicle was over turned. Deceased as well as Respondent No.1 both sustained serious injuries in this accident. Deceased had died due to cardiac failure. It is admitted that FIR 497/93 dated 25.9.93 has been registered against R.1. It is submitted that Ms Premika Bhatia had expired but petitioners are not entitled to claim exorbitant compensation from anyone.
Respondents no. 3 filed its joint WS 4 denying all the grounds taken in petition by petitioners. It is submitted that offending vehicle was insured with it wef 31.08.1992 to 30.08.1993, but the accident had taken place on 25.09.1993, hence the date of accident is not covered within the period of insurance policy. Name of R.3 had been dropped by my Ld. Predecessor vide his order dated 21.1.99.
On 12.10.99 none appeared on behalf of R.1 and R.2 hence they were proceeded exparte and this case was adjourn for recording of exparte evidence of petitioner for 10.3.2000.
On 27.7.2002 an application U/O 9 rule 7 CPC was moved on behalf of R.1 and R.2 for recalling exparte order against them. That application was dismissed by my Ld Predecessor qua both the respondents with the following observations:
"However it is made clear that the respondents can join the proceedings of the matter at any stage and they have already cross examined two witnesses of the petitioners who appeared on 25.7.2002 when present applications were filed U/O 9 rule 7 CPC."
As on 12.10.99 all the respondents were proceeded exparte hence my learned Predecessor had not framed any issue in this case.
5In order to prove their case Petitioner No.1 appeared in the witness box as PW1. Petitioners have also produced PW2 Dr. Vandana Talwar, PW3 Sh. Sahi Ram, PW4 Sh. Kanhaiya Lal, Pw5 Sh. Sravan Kumar, PW6 Sh. Ravi John, PW7 Ashok Bhatia (again). In support of their case respondent No.1 has appeared in the witness box as RW1 and has also produced RW2 Sh. Bawa Harkirat Singh, RW3 Sh. Arvind Vishvanathan and PW4 Sh. Vinod Kumar.
Arguments heard. File perused.
It is argued on behalf of petitioners that deceased was their only daughter, Who was a brilliant and intelligent personality. At the time of her death she was student of Ist year Sociology (Hon.) She had secured first class in her matriculation examination . Her parents are highly placed. Her father was Chairman of ITC Welcome Group of Hotel and Director of ITC at that time. They belongs to high status of society. Had the deceased not died in this accident she would have earned at least 2 lacs per annum.
Accident had taken place because of rash and negligent driving of respondent No.1 in which deceased had received grave and serious injuries and ultimately died on the same night as the result of injuries received by her in this accident because of rash and negligent driving of Maruti 6 Gypsy. Petitioners may be awarded a compensation of Rs.20 lac at least. Ld Counsel for the petitioners placed reliance on the following authorities:-
2003 ACJ 1783 Rajasthan.
1999 ACJ 634 Supreme Court.
2003 ACJ 369 M.P. (DB) 1996 ACJ 1044 Supreme Court.
1994 ACJ 1 Supreme Court 1996 ACJ 581 Supreme Court.
2001 ACJ 1719 Supreme Court.
2003 ACJ 2151 Supreme Court.
1986 ACJ 633 Delhi 1970 ACJ 150 Punjab & Haryana.
1987 ACJ 853 Madras (D.B) 1984 ACJ 607 Kerala (D.B) 1987 ACJ 224 M.P. 2003 ACJ 680 Supreme Court 2006 ACJ 1398 Supreme Court.
It is argued on behalf of Respondent No.1 and
2 that petitioners have no cause of action to file present petition against the respondents as deceased was herself driving the vehicle at the time of this accident. Ld counsel for respondents minutely dissected the statement of PW4 and tried to demonstrate that he was a tutored witness. He has also placed reliance in support of his arguments on the statement of RW4 and other witnesses of respondents to prove that deceased was driving the vehicle herself at the time of this 7 accident. Petitioners do not have cause of action to file this petition as deceased was not their natural daughter. She was their adopted child. Post mortem of deceased was not conducted. She had died because of cardiac arrest. It is not proved on the judicial file that deceased had died due to this accident. Respondent No.1 has already been acquitted in the criminal trial on 19.2.2002.
It is further argued on behalf of Respondent that deceased was a student of B.A (Hons) She was having no source of income. Petitioners were not dependent on her. Deceased being a girl would certainly leave her parents house after her marriage as per custom prevailing in our society. Ld Counsel for respondents placed reliance on following authorities in support of his arguments:-
(1977) 2 SCC 441.
(2005) 6 SCC 172.
ACJ (2001) 827 SC.
ACJ (1984) 582 ( Karnataka) ACJ (2004) 1289 (Karnataka) ACJ (1987) 224 Madhya Pradesh.
JT 2006 (10) SC 234.
(2006) 3 SCC 242 (2001) 8 SCC 197 I have carefully considered all the arguments raised before the Court and have gone through the record and authorities relied upon by the parties.
8My findings are as under:
NEGLIGENCE:
Petitioners have produced PW4 Kanhiya Lal to prove rash and negligent driving of vehicle No UGX- 8228 by respondent No.1 who has stated as follows:-
"Stated that on 25.9.93 I was on night duty at the gate of University of Delhi South Campus at about 1.30 am. One Maruty Gypsy No.UGX-8228 red colour driven rashly and negligently at a high speed by respondent no.1 from Ram Lal College and was proceeding towards Daula Kuan side and the driver of the said Gypsy hit the road divider and it over turned on the other side of the road and as a result of one girl aged about 18 years fell down and sustained fatal injuries. She died at the spot.I informed the police in Nanakpura Chowki of PS R.K. Puram, the copy of the FIR is Ex PW4/1, Copy of challan is Ex PW4/2. Copy of site plan is Ex PW4/3. The police came in my presence and took away the injured. Police recorded my statement."
This witness has not been cross examined on behalf of respondents hence his evidence remain unchallenged. However, Ld. Counsel for respondent has thrashed out his statement on various points and tried to demonstrate that he is a false and tutored witness who had not seen the accident with his own eyes. It is argued that statement of 9 PW4 is contrary to other evidence on record as this witness has stated that deceased had died on the spot of accident whereas PW2 Dr. Vandana Talwar deposed that deceased was brought alive in hospital where she had died due to cardiac arrest. MLC of deceased Ex PW2/A has also been referred in this regard. It is argued that PW4 could not recognized respondent No.1 at mid night about 1.30AM. How can he give the age of girl as 18 years. It is argued by the Ld counsel for respondents that all these facts proves that PW4 was a tutored witness.
PW4 was neither the author nor prepared documents Ex PW4/1 to 3 how can he proved the same,it again proves that he was acting on the instructions of petitioners. It is argued that RW4 Vinod Kumar who is the other eye witness of this accident had stated that the girl was on steering side when he removed her. RW4 has been duly cross examined on behalf of petitioner but he has maintained his stand through out his cross examination. His statement has also been corroborated by the circumstances, and by the statement of other witnesses . Respondent no.1 has also been acquitted in the criminal trial vide judgment Ex RW1/A. RW4 is the only eye witness who had witnessed the accident with his own eyes hence his statement should be relied upon.
I have also gone through the statement of RW4 which is as under:-10
" In the year 1993-94 I was working in Home Guard. I know about an accident which took place on the night intervening 24/25.9.93 . I was on picket duty on the gate of South Campus. I alone witnessed this accident. Though one other person was also on duty with me his name was Kanhiya. He had gone toilet when the accident took placed. One vehicle was coming from Vasant Vihar side and going towards Dhaula Kuan it struck against the patri and vehicle turned turtle twice. I opened the window of vehicle and removed one girl. She was made to lie on the patri. In the meantime Kanhiya also came and I with the help of Kanhiya removed a boy from a vehicle. The girl was on steering side when I removed her. In the meantime PCR came there and took them to hospital. The time of accident was 1.30 am I do not know who informed the PCR."
In his cross examination he has stated that his statement was recorded by PCR. He has stated that his statement was also recorded in the Court of M.M. He has further stated that he did not stated to police in his statement that one boy Lakhanpal was driving the offending vehicle. He was confronted with his statement recorded U/S 161 Cr.P.C However, he has stated that he did not make such statement.
He has not given any clarification as to why the police had recorded his statement wrongly.11
Respondent No.1 in his affidavit deposed that on 24.9.93 deceased Premika was driving Maruti Gypsy UGX-8228 at the time of this accident. In order to avoid hitting the cow she lost control over the vehicle which skidded and banged against road divider and over turned. He sustained serious injuries in this accident and became unconscious. He was not driving the vehicle at the time of this accident. He had been falsely implicated in the criminal case in which he has been acquitted vide judgment Ex. RW1/A. In his cross examination he has stated that after this accident he does not remember anything about this accident because he was advised by the Doctor not to recollect or put stain on his brain . He has stated that he does not know on what basis it is written in his affidavit that deceased died because of cardiac arrest. Cause of death may be written by his Advocate from post martem report. He has also admitted that he had taken alcohol in the party but he has denied that he was drunken. RW2 Baba Harkirat Singh and RW.3 Arvind Vishvanathan stated that on 24.9.93 they were present in the birthday party of Arjun. They had seen Premika in driver seat when Premika and Arjun left the party. However both these witnesses in their cross examination admitted that they did not know who was driving Gypsy at the time of accident.
PW4 Kanhiya and RW.4 Vinod Kumar are the two 12 eye witnesses of this accident. Police has also cited both these persons as eye witnesses of this accident in the challan filed against Respondent No.1 U/S 279/304-A of IPC. PW4 Kanhiya has supported the case of petitioners while RW.4 Vinod has supported the version given by respondents.
PW4 has stated that respondent No.1 was driving Gypsy at the time of accident while RW4 has not stated that who was driving the vehicle at the time of accident. He has simply stated that he had open the window of vehicle and removed one girl. Girl was on steering side when he had removed her.
Had he seen the girl driving the vehicle at the time of accident why he shying of stating so clearly in the Court that the girl was driving the vehicle at the time of accident. For the sake of argument even if his version accepted that he had removed the girl from steering seat still it will not prove that she was driving the vehicle at the time of accident because this witness himself has stated that vehicle struck against patri and turned turtle twice, as it had turned turtle twice it may be possible that due to over turning of the vehicle twice girl might have fallen on the steering side.
Respondent had produced the certified copy of judgment dated 19.2.2002 from the Court of the then LD. M.M. Ms Kamini Lau pertaining to FIR No.497/93 PS R.K. Puram vide which respondent No.1 was 13 acquitted. In that case this witness had turned hostile on the point that he had told the police that boy was driving the vehicle. In the criminal trial this witness in his cross examination denied that his statement was recorded by the police. It has specifically mentioned so by the Ld MM in the judgment. This witness in this Court in his cross examination has admitted that his statement was recorded by PCR. He has specifically stated in this Court that he did not stated in his statement to the police that one boy Lakhanpal was driving the vehicle,this clearly shows that this witness has admited at least recording of his statement by the police. In his further cross examination he has stated that his statement was recorded by the PCR people itself. He has denied that his statement was recorded by the police. Relevant portion is as follows:-
" It is wrong that my statement mark A was recorded by police".
Towards the end of his cross examination he has stated as follows:-
"At 5.00 am after finishing my duty I went to police Chowki to record my departure entry.
At that time again investigating officer met me and recorded my statement."
From a careful examination of the statement of this witness it is clear that he had changed his 14 version frequently.
He has admitted presence of Kanhiya on the spot but stated that at the time of accident he had gone to toilet. While he has not stated so in his statement U/S 161 recorded by the police.
Hon'ble High Court of Madras Paulus Vs Natrajan & Ors 1987 ACJ 853 in this regard has held as follows.
"Evidence -Appreciation of- A person who stoops to violate Motor Car ( Distribution and Sale) Control Order and enrich unjustly, cannot be believed of whatever he may claim- It reflects his character and his evidence ought to have been cautiously approached.
If a transgressor or violator or a law-breaker comes forward to tender evidence, it will be obligatory on the part of the Court to look for clinching corroboration on claims made by him if at all his evidence has to be accepted, and failing which his evidence should not be accepted"
In view of above discussion this Court is of opinion that evidence of RW4 is full of contradictions. Considering his stand in criminal trial as well as in this petition coupled with the fact that he has not given any explanation as to why IO had written his wrong statement this Court 15 is of opinion that he is not a reliable witness hence his statement cannot be relied upon.
According to respondents a stray cow had appeared before the Gypsy. In order to avoid hitting the cow she has lost control over the vehicle which skid and banged against road divider. Even RW 4 has not support this version in his statement in this Court. RW2 and 3 simply stated that they had seen deceased on the driver seat when they left the party. In their cross examination they have admitted that they had not seen who was driving the vehicle at the time of this accident.
Respondent No.1 in his affidavit as RW.1 deposed that deceased was driving the vehicle at the time of this accident. In his cross examinatin he has stated as follows:
" After this accident I do not remember anything about this accident because I was advised by the Doctor not to recollect or put stain on my brain to reveal the incident of accident"............. ............................
"One cow came on the way I do not recollect what happened thereafter.
" It is correct that I took alcohol in party but it is wrong that I was drunken."
When this witness does not remember anything about this accident how his version can now be 16 believed.
Hon'ble High Court of Kerala in Kerala State Road Transport Corporation Vs C. Soman Nadar 1984 ACJ-607 held as follows in this regard.
" Evidence -Driver- Statement of driver who caused the accident not believed as his testimony being interested and unaided by any corroboration."
PW4 has categorically stated that at the time of this accident. Respondent No.1 was driving Maruti Gypsy No UGX-8288 at a high speed in rash and negligent manner. Presence of this witness has also been admitted on the spot at the time of accident by RW4 however, he has stated that this witness had gone for toilet at that time. He has not stated so in his statement U/S 161 of Cr.P.C. This witness is a Constable in Delhi Police. He was on his duty at that time hence his presence and witnessing of this accident cannot be denied. PW4 has not been cross examined on behalf of respondents. His statement remain unchallenged. No cross examination on a substantive point amounts to admission of the same by the opposite party.
In these circumstances, his statement cannot be disbelieve only because he had stated that RW1 was driving the vehicle or because he had given the age of girl as 18 years or because he has Exhibited Documents of criminal trial Ex PW4/1 to 4.
17Motor accident claim petitions are summary inquiries only. Now it is well settled that provision of CPC and Evidence Act are not strictly applicable in Motor Accident claim proceedings. Our Hon'ble Supreme Court in N.K.V Bros. (P) Ltd Vs M. Karumai Ammal AIR 1989 SC 1354 has held as follows:
"Accident Tribunals must take special care to see that innocent victim do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Safe in plain cases, culpability where it is fairly reasonable. The Court should not succumb to niceties, technicalities and mystic maybes."
In this regard Hon'ble High Court of M.P in Anil Tiwari Vs Saheb Singh 2001 ACJ 471 has observed as follows:
" Motor Vehicles Act,1988, Section 169- Claims Tribunal-Procedure and powers-
Evidence- Appreciation of - Claimants obtained certified copies of FIR, inquest report, panchanama, post-mortem report from the Court and filed them before the Tribunal- Whether these documents could be brushed aside on technical grounds- Held: No; they were authentic copies; strict proof of these 18 documents is not required in claim cases under Motor Vehicle Act."
In view of above discussion this Court is relying upon the statement of PW4 and is of opinion that respondent No.1 was driving Maruti Gypsy No.UGX-8228 at the time of this accident in rash and negligent manner resulting to this accident.
It is correct that post martem of the dead body of deceased was not conducted. It is also correct that in MLC of deceased Ex PW2/A it is mentioned that patient had cardiac arrest she was restituted twice but had another cardiac arrest at 3.30 am. Patient could not be restituted and declared dead at 3.30 am.
It is admitted case of both the parties that deceased was traveling in Maruti Gypsy no.UGX-8228 and received injuries in this accident on the intervening night of 24/25.9.1993 at about 1.30 hours.( 25.9.93). It is also undisputed that she was removed to Safdarjung hospital. According to MLC she had reached in hospital at 2.15 am on 25.9.93, with the alleged history of road traffic accident, in unconscious condition. She was declared dead at 3.30 am. Even if she had died because of cardiac arrest, in the peculiar facts and circumstances of this case this Court can safely inferred that she had suffered cardiac arrest as the result of injuries received by her in 19 this accident.
Dr. Vandana Talwar who had prepared this MLC has appeared in the witness box as PW2. She has not been cross examined on behalf of respondents. Respondent could have ask her about the cause of death of deceased in cross examination. Not even a suggestion has been given to this witness that deceased had not died as a result of injuries received by her in this accident.
Hon'ble High Court of Madhya Pradesh in New India Insurance Co; Vs. Shakuntla Bai 1987 ACJ 224 has held as follows in this regard:-
"Evidence- An old man sustained compound fracture of pelvis bone in an accident and he filed a claim case- he died after 8 months of accident- injured bed ridden and in great agony till death- whether the death resulted from the accident- Held Yes. "
It is correct that Post martem was not conducted of the deceased, however form the circumstances it is clear that deceased had died because of the injuries received by her in this accident, in these circumstances, absence of post martem report cannot disentitle the petitioners form claiming compensation on account of death of deceased.
20Hon'ble High Court of Rajasthan in Radhey Shyam Vs. Keshav Parkash 1987 ACJ 248 has held as follows:
" Evidence- Technical rules of evidence-
In accident cases where the unfortunate victims are handicapped and come for compensation, technical rules of evidence should not be applied and substantial justice must be done."
It is further held in this case that Medical evidence has got its own value and normally it is better if a Doctor is examined in order to make the injuries assessment precise and exact. However in the absence of Doctor the claim for compensation cannot be thrown out.
It is correct that R.1 has been acquitted in a criminal case lodged against him qua this accident. Now it is well settled that judgment of criminal case cannot be relied upon in deciding the question of negligence in a Motor accident claim petition. Finding given in criminal Court judgment cannot be taken in aid in motor accident petitions. Irrespective of the order of acquittal or conviction in a criminal case Tribunal is duty bound to look into the entire evidence and to come on an independent conclusion regarding the manner in which the vehicle was driven during the time of occurrence. Finding arrived at criminal trail 21 cannot be made applicable in claim cases. Finding of criminal Court are not relevant in proceedings before claim tribunal. Tribunal must established its findings on the basis of evidence recorded before it.
I have also carefully gone through the judgment of Ld MM dated 19.2.2002. Ld MM acquitted respondent No.1 as RW4, appeared in this Court, has turned hostile and had not supported the case of prosecution. Other eye witness Kanhiya Lal who has appeared in this Court as PW4 has not been examined in criminal trial. In these circumstances, this Court is of opinion that respondents cannot take advantage of the fact that R.1 had been acquitted in criminal trial, to avoid liability in this case.
Ld. Counsel for respondents also argued that deceased was a major, she herself with her free will voluntarily traveled in the vehicle of respondent as such in view of maxim "volent not fit injuria" petitioners are not entitle for any compensation. I do not agree with this argument of Ld Counsel for respondent firstly because this maxim is not applicable in the facts and circumstances of this case. For the maxim Volenti not fit injuria to apply, two points have to be proved that (i) the plaintiff knew that the risk was there; (ii) he, knowing the same agreed to suffer the harm. If only first of these points are present and the second is missing, it is no 22 defence. Merely because the deceased knew the harm, does not imply that she assents to suffer it. In our case there is no evidence that deceased had agreed to suffer the harm. Secondly for the defence to be available it is further necessary that the act done must be the same to which the consent had been given. In our case there is no evidence that deceased had consented to bear the consequences of rash and negligent acts of respondent no.1.
In view of above discussion this Court is of opinion that deceased had died because of injuries received by her in this accident on account of rash and negligent driving of Maruti Gypsy No UGX-8228 by respondent no.1 .
QUNTUM:
It is correct that deceased was a student of first year at the time of her death. She was not earning anything. Claimants are the parents of deceased. They were not dependent on the deceased at the time of her death. Deceased was their adopted daughter.
Now it is well settled that an adopted child after adoption will be treated as a family in the adopted family. Adopted child has same rights and duties and status as that of a natural born child in that family. In these circumstances, there is no 23 merit in the arguments that petitioners have no cause of action to file present petition on account of the death of their adopted daughter.
It is also well settled that no distinction can be made while awarding compensation on account of sex i.e. male or female.
It is correct that petitioners were not dependent on the deceased at the time of her death. They were financial independent. The compensation to be awarded has two elements. One is the pecuniary loss to the estate of deceased resulting form the accident. Other is the pecuniary loss sustained by the members of his family for his death.
All that is necessary is that a reasonable expectation of pecuniary benefit should be entertained by the person who sues. It is quite true that the existence of this expectations is an inference of fact; there must be a basis of fact from which the inference can reasonably be drawn; it is not necessary that two of the facts without which the inference cannot be drawn are, firstly that the deceased earned money in the past, and secondly, that he or she contributed to the support of the plaintiff. These are, no doubt, pregnant pieces of evidence, but they are only pieces of evidence; and the necessary inference can be drawn from circumstances other than and different from 24 them"
In case of the death of an infant there may have been no actual pecuniary benefit derived by his parents during the child's life time but this will not bar the parents claim and prospective loss will find a valid claim provided that the parents establish that they had a reasonable expectation of pecuniary benefit if the child had lived. The future of a child is uncertain. Where the deceased was a child he was earning nothing but had a prospect to earn.
Tribunal required to make an award determining the amount of compensation which is to be in the real sense "damage" which in turn appears to be "just and reasonable". It has to be born in mind that compensation for loss of limbs or life can hardly be weighted in golden scale. Compensation must be just and it cannot be a bonanza and the same should not be a pittance. Tribunal has a duty to weight various factors and quantify the amount of compensation which should be just.
What would be just compensation is a vexed question . There can be no golden rule applicable to all cases of measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise methamatical calculation. It would dependent upon the peculiar facts and circumstances and special features of every case. The expression 25 just denotes equability,fairness and reasonableness and not arbitrarily.
Petitioner No.1 has appeared in the witness box as PW7. He has stated that deceased was 18 years old at the time of her death. She was doing B.A Hons ( Sociology) from Jesus and Mary College New Delhi. She was regd for foundation course of CA. She had done her matriculation from Lawrence School Sanawar Shimla. She had passed her plus 2 examination from Sprindles School Delhi. She was a good student. She was also a good swimmer. He was hoping that with the joining of foundation course of CA she would be doing CA even if she was not interested in doing CA she could find good job in tourism industry or any where else after doing BA.
He has stated that he was working as Director ITC Ltd and also Chairman of welcome Group of Hotels at the time of this accident. He was M.A Economics, CA, FCA from England. His wife remain consultant for promotions of Indian Handicraft and textiles both of them were income tax payee. His father retired as Lt. General in Army Medical Core. His son is a computer traffic designer who had qualified from Parason's School of Design USA. Death of his daughter has caused a lot of trauma to him and his wife. They expected financial support form their daughter had her life not cut short because of this accident. There is no substitute of his daughter .26
This witness has been cross examined on behalf of respondents. His entire cross examination is as under:
"It is incorrect to suggest that my daughter received a natural death. It is incorrect to suggest that my daughter was driving the car at the time of accident in question. It is also incorrect to suggest that R.1 was not driving the vehicle in question.
It is clear from the above cross examination that this witness has not been cross examined on behalf of respondents on substantive points. His evidence remain unchallenged and unshaken. There is nothing on the judicial file to disbelieve him.
Thus it is well proved on the judicial file that deceased belonged to a family of high status. She was having best opportunities to excel in her life . She was having best education .
Our Hon'ble Supreme Court in a latest judgment titled New India Insurance Co; vs Satender and ors JT 2006 (10) SC 234 has held as follows with regard to awarding of compensation in case of the death of a young children :
" In cases of young children of tender age in view of uncertainty abound neither 27 their income at the time of death nor the prospects of future increase in their income at the time of death nor the prospects of future increase in their income nor chances of advancement of their carrier are capable of proper determination on estimated basis. The reason is that at such an early age the uncertainties in regard to their academic pursuits, achievements in carrier and thereafter advancement in life are so many that nothing can be assumed with reasonable certainties. Therefore, neither the income of the deceased child is capable of assessment on estimated basis or the financial loss suffered by the parents is capable of mathematical computation."
In our case it is well proved that deceased was 18 years of age at the time her death. She was a student of BA (Hon.) Sociology of Jesus and Merry College, New Delhi.
Our Hon'ble Supreme Court in M. S. Grewal Vs. Deep Chand Sood, 2001 ACJ 1719 has held as follows with regard to compensation granted in case of death of boys of age group of 10 to 12 years:
"Quantum - Fatal accident - Deceased boys in age group of 10-12, Students of IV to VI classes - Claimants: parents - Students 28 belonged to upper strata of society and they were studying in an affluent school - Death by drowning in river where they had gone for picnic, due to negligence of their teachers -
High Court awarded Rs. 5,00,000 to parents of each boy - Award Upheld."
Our Hon'ble High Court in "Association of Victims of Uphar Tragedy & Ors. Vs. Union of India, 2003 ACJ 1631" in para no. 100 has observed as follows with regard to granting of compensation on account of the death of children above the age of 20 years:
"Though the actual income of none of the deceased is on record but having regard to the fact that all those persons who had either died or were injured were sitting in the balcony where the rate of admission was Rs. 50 per seat, it can safely be concluded that the victims of the fire incident belong to reasonable well placed families and this court will, therefore, not be in error in holding that the average income of each one of the victims above the age of 20 years was not less than Rs. 15,000 per month. Deducting 1/3rd for the personal expenses of the deceased, the dependency would not be less than Rs. 10,000 per month or say Rs. 1,20,000 per annum.
Applying the multiplier of 15 prescribed in 29 the Second Schedule to the Motor Vehicles Act, in our view, relatives of each one of the victims would be entitled to compensation of Rs. 18,00,000."
There is substantive evidence in this case with regard to status of the family of deceased. According to the evidence produced on the judicial file deceased certainly belonged to a family of very high status. Deceased was above the age of 10/12 years and less the age of 20 years, in these circumstances, after keeping in view of the ratio of law laid-down in above cited authorities, this Court is of opinion that Rs. 14,00,000/- will be just and proper compensation in this case.
Thus petitioners will be entitled for a total compensation of Rs. 14,00,000/- alongwith 7% interest from the date of filing of this petition till realization of the awarded amount.
RELIEF:
Petitioners will be entitled for a total compensation of Rs 14,00,000/- less the amount of interim award, if any, already received by them along with 7% interest from the date of filing of this petition till realization of the amount. The awarded amount shall be payable to both the petitioners in equal shares.
70% of the amount awarded to petitioners 30 be kept in FDRs for a period of 7 yrs in any Nationalized bank with the provision that they may opt for awarding of periodical interest but no loan shall be granted against the said FDRs.
Both the respondents no. 1 and 2 will be jointly and severally liable to pay this amount, hence respondents no. 1 and 2 are directed to deposit the awarded amount by way of cheques in the name of petitioners within 30 days from today. Order accordingly. File be consigned to R.R. ANNOUNCED IN OPEN COURT ON DATED 22.2.2007.
(V.K. MAHESHWARI) PRESIDING OFFICER: MACT