Delhi District Court
Shri Pramod Saw vs Sushant Taneja on 26 May, 2015
IN THE COURT OF MS. GEETANJLI GOEL, PO: MOTOR ACCIDENT
CLAIMS TRIBUNAL2, PATIALA HOUSE COURTS, NEW DELHI
Suit No.446/14
Date of Institution: 29.04.2014
IN THE MATTER OF:
1. Shri Pramod Saw
S/o Shri Ramasahay Saw
2. Smt. Vimla Devi
W/o Shri Pramod Saw
Both R/o:
H.No.71, Village & PO Chero
Distt. Nalanda
Bihar 803110. ...Petitioners
Versus
1. Sushant Taneja
S/o Shri Mahesh Taneja
R/o AE173, Shalimar Bagh
Delhi - 110088.
2. Sadhna Taneja
W/o Shri Mahesh Taneja
R/o AE173, Shalimar Bagh
Delhi - 110088.
3. Liberty Videocon General Insurance Co. Ltd.
1st Floor, Alps Building
56, Janpath
Suit No. 446/14 Page no. 1 of 66
Pramod Saw Vs Sushant Taneja & Ors.
Connaught Place
New Delhi - 110001. ...Respondents
Award reserved for : 26.05.2015 Date of Award : 26.05.2015 AWARD
1. Vide this judgmentcumaward, I proceed to decide the petition filed u/s 166 and 140 of Motor Vehicle Act, 1988, as amended uptodate (hereinafter referred to as the Act) for grant of compensation in a road accident.
2. It is the case of the petitioners that on 03.01.2014, the deceased Sagar Kumar was going along with his friend Praveen Kumar as a pillion rider on his motorcycle No.WB368033 to R&R Hospital through the line between Subroto Park and R&R Hospital and a car bearing No.DL8CR3819 being driven by the respondent No.1 coming from Dhaula Kuan side in a rash and negligent manner breaking all traffic rules and regulations came in the line of the motorcycle and hit the motorcycle which was going in its lane as a result of which both the motorcyclists fell down. The respondent No.1 took the deceased and other injured to R& R Hospital and got them admitted there where the deceased succumbed to injuries on 04.01.2014 at 06:45 AM. It is averred that if the driver of the vehicle No.DL8CR3819 had been a bit cautious, the accident could have been avoided. It is alleged that the accident had been caused purely due to the rash and negligent act on the part of the Suit No. 446/14 Page no. 2 of 66 Pramod Saw Vs Sushant Taneja & Ors.
driver of the offending vehicle. It is stated that in respect of the accident FIR No.10/2014 under sections 279/338 IPC was registered at PS Delhi Cantt.
3. It is stated that the deceased Sagar Kumar was 24 years old and was working as Account Assistant in Indian Air Force and was posted at HQ Western Air Command. He was getting a monthly salary of Rs.29,660/. The deceased was also getting annual bonus as applicable to the Government employees. It is contended that the deceased was authorized for increment and all other benefits as applicable to Central Government /defence employees. The deceased was also entitled for the benefits of pay commission whenever the same was subject to revision. The deceased had free fooding and lodging and in case the deceased started living with his family, he would have been entitled for quarter allowance as well as food allowance which was applicable to defence employees. All his allowances and benefits were subject to revision. It is stated that the salary of the deceased was increasing after every six months on increase of Dearness Allowance and also as a result of increment annually. It is averred that the deceased was entitled for promotion from time to time and on promotion he was entitled to get the higher pay scale and all other allowances. The deceased was having a very bright future. It is contended that the airmen who are recruited in Air Force have to undergo a series of tests and meritorious students can only get selected in Indian Air Force, so it was crystal clear that the deceased was a very bright student and that is how he had been selected in the Indian Air Suit No. 446/14 Page no. 3 of 66 Pramod Saw Vs Sushant Taneja & Ors.
Force. The deceased was pursuing his education privately and after passing graduation he would have been entitled to appear for the officers' examination in Indian Air Force and there was fair chance of his being selected as an officer in Indian Air force and in that case his all other remunerations would have been very high.
4. It is averred that the deceased was a teetotaler and was possessing very sound health and physique and he was not suffering from any ailments. If he had not expired in the accident, he would have survived upto the age of at least 90 to 100 years seeing the longevity of life in the family of the deceased. The parents of the deceased were still alive and had been maintaining good health prior to the accident. The deceased would have been entitled to various benefits on his retirement and thereafter he would have been entitled for the pension also as applicable to the Central Government employees. It is submitted that the deceased was the earning member of the family and he was supporting both the petitioners. He was very laborious and used to give money to the petitioners every month. The deceased was of young age and was having a long life to survive. If the deceased had remained alive he would have survived for another 6570 years. It is averred that due to the untimely death of Sagar Kumar, the petitioners had been deprived of his income, guidance and love and affection. He was the ray of hope for his infirm parents and he used to look after the petitioners monetarily and therefore, the petitioners used to feel very secure in life. The deceased also used to take Suit No. 446/14 Page no. 4 of 66 Pramod Saw Vs Sushant Taneja & Ors.
care of his brother and sister. It is contended that if the deceased had survived, his income would have increased manifold. The deceased was very hard working and enthusiastic and was having a bright future and his income had been rising progressively. The deceased was a permanent source of income for the petitioners. It is stated that the petitioners spent a sum of Rs. 50,000/ for performing the last rites of the deceased.
5. It is contended that the petitioners are finding it very difficult to pull on day to day life due to nonavailability of financial help. The petitioners No.1 and 2 were worrying day and night about their old age and were feeling very insecure in absence of financial help and the accident had brought both the petitioners on the brink of hunger and starvation. The petitioners had lost their beloved son and hence they were suffering a great trauma due to the untimely death of the deceased. It is alleged that the respondent No.1 is the driver of the offending vehicle, respondent No.2 is the owner of the offending vehicle and the respondent No.3 is the insurance company and hence all the respondents are jointly, severally and vicariously liable to pay the compensation. It is prayed that an amount of Rs.75,00,000/ be awarded in favour of the petitioners and against the respondents jointly and severally on account of financial loss, loss of love and affection, mental agony, transportation expenses, consortium, loss of estate and treatment/ funeral expenses/ performing last rites.
Suit No. 446/14 Page no. 5 of 66 Pramod Saw Vs Sushant Taneja & Ors.
6. Written statement on behalf of the respondents No.1 and 2 was filed making the preliminary submissions that the respondent No.1 was employed in the capacity of a Software Engineer in a company named Daffodil Software Ltd. in Gurgaon. He had a car pooling arrangement with his two colleagues namely Saurabh Sablok and Vikas Goyal who were also employed in the same company on the date of the accident and they too were Software Engineers by profession and training. Pursuant to the car pooling arrangement with his colleagues, the respondent No.1 used to commute to his employer's Gurgaon office together with his colleagues in a common vehicle as they all came from nearby localities and their destination was the same company and the basis for car pooling arrangement was travel cost sharing. On 03.01.2014, the respondent No.1 had taken out the family Zen Estilo Maruti Car, registered in the name of his mother i.e. the respondent No.2, bearing No.DL8CR3819 for joint use of the respondent No.1 and his colleagues in order to travel to their employer's office. When they were traveling in the vehicle on their way to Gurgaon and the vehicle was being driven in its correct lane by the respondent No.1 at a moderate speed of 3035 km per hour with due care and caution observing all traffic rules and regulations, when they reached the main entrance of Army Research and Referral Hospital at Dhaula Kuan at around 08:45 a.m on 03.01.2014, a motorcycle with two riders bearing No.WB368033 which was being driven by its driver at an excessive speed and in rash and negligent manner on wrong side of the road, suddenly appeared from the opposite direction in front of the vehicle. The speed of the Suit No. 446/14 Page no. 6 of 66 Pramod Saw Vs Sushant Taneja & Ors.
motorcycle was so excessive that its driver could neither control it nor bring it to abrupt halt on sighting the vehicle and resultantly the motorcycle hit the vehicle on its left side thereby causing the accident. Both the riders of motorcycle were not wearing helmets and were thus unmindful of their own safety as well as the safety of other passersby. After the accident, the respondent No.1 and the other two occupants of the vehicle immediately attended upon the two injured motorcyclists and with the help of driver of an Indica car that was passing by, carried the injured motorcyclists to the Emergency Wing of Army Hospital, Dhaula Kuan and got them admitted there for their treatment.
7. It is averred that the respondent No.1 did not cause the accident and the cause of accident lay solely with the deceased motorcyclist and his co rider and the respondents No.1 and 2 could not be held liable for the accident. In fact the respondent No.1 wrote a letter dated 07.01.2014 to the DMO/Medical Superintendent, Army Hospital Research & Referral, Subroto Park, Dhaula Kuan, requesting them to preserve the CCTV footage of the accident site and for a copy of the same to be submitted with the authorities to meet the consequences flowing out of the accident in a just and fair manner. However the DMO/ Medical Superintendent failed to give any response to the letter of the respondent No.1. It is stated that at the time of accident, the respondent No.1 was holding a valid registration certificate for the vehicle and valid driving license bearing No.DL0820080204746 and an issue date of 02.02.2013 and Suit No. 446/14 Page no. 7 of 66 Pramod Saw Vs Sushant Taneja & Ors.
expiry date of 11.02.2028 with authorization to drive Light Motor Vehicle. At the time of the accident, the vehicle was duly covered by the insurance policy bearing No.201120010113100465300000 with validity from 27.08.2013 to 26.08.2014, issued vide cover note No.20000022159 by the respondent No.3 in the name of the respondent No.2 and as such, if any financial liability was imposed in the case, the same would have to borne exclusively by the respondent No.3. The averments made in the claim petition were denied. It is denied that the car bearing No.DL8CR3819 was being driven by the respondent No.1 in a rash and negligent manner breaking all traffic rules and regulations.
8. Written statement on behalf of the respondent No.3 was filed taking the preliminary objections that the petitioners have not arrayed the driver, owner and insurer of the motorcycle bearing registration number WB36/8033 involved in the accident as party to the proceedings and as proper and necessary parties had not been arrayed, the petition was bad in law. It is contended that the accident, if any, had taken place due to the sole negligence of the driver of the motorcycle on which the deceased was riding and as there was no negligence on the part of the driver of the car insured with the respondent No.3, the respondent No.3 was not liable to pay any compensation to the petitioners. It is stated that all the material allegations in the petition are false and the petition is not maintainable either on facts or in law against the respondent No.3. It is averred that the contract of insurance is a contract of Suit No. 446/14 Page no. 8 of 66 Pramod Saw Vs Sushant Taneja & Ors.
indemnity and if the insured wants to take benefit of the contract of insurance, then he shall have to prove that the alleged offending vehicle was not being driven in contravention of the insurance policy and he was holding a valid and effective DL at the time of the alleged accident and if the insured failed to prove the same, then no liability could be fastened on the respondent No.3. It is submitted that the motorcycle on which the deceased was travelling was proceeding totally on the wrong side of the road. The spot of accident was on the extreme left side of the service road adjacent to Delhi - Gurgaon National Highway. The insured car was proceeding from Dhaula Kuan (Delhi side) towards Gurgaon whereas the motorcycle on which the deceased was proceeding was coming from Subroto Park side towards Dhaula Kuan side i.e. from the wrong side of the road. Thus, the spot of accident, directions of the road and conditions of the road clearly showed that the accident, if any, took place solely due to the rash and negligent driving on the part of the motorcyclist on which the deceased was riding. It is alleged that the driver of the motorcycle on which the deceased was riding was not holding any valid and effective driving license and neither the driver nor the deceased of the motorcycle had worn protective headgear and thus they had totally disregarded the safety measures prescribed and as the motorcycle was being driven and the deceased was riding thereon in total disregard to the statutory provisions, the petitioners were not entitled to claim any compensation. The averments made in the claim petition were denied. It is submitted that the interest of Ms. Sadhna Taneja in vehicle bearing registration number Suit No. 446/14 Page no. 9 of 66 Pramod Saw Vs Sushant Taneja & Ors.
DL08/Cr3819 was insured by the respondent No.3 vide policy No. 201120010113100465300000 for the period commencing from 27.8.2013 to 26.8.2014.
9. Initially the claim petition was filed on 29.4.2014 and thereafter the Detailed Accident Report was filed by the IO on 27.5.2014. An application under order 1 rule 10 CPC was filed on behalf of the respondent No.3 which was dismissed vide order dated 26.8.2014. From the pleadings of the parties, the following issues were framed vide order dated 26.08.2014:
1. Whether the deceased sustained injuries in the accident which occurred on 03.01.2014 at about 08:50 am in front of Gate of R&R Hospital, NH8 towards Gurgaon, caused by rash and negligent driving of a vehicle bearing no.DL8CR3819, being driven by respondent no.1, owned by respondent no.2 and insured with respondent no.3? OPP
2. Whether the petitioners are entitled for compensation? If so, to what amount and from whom?
3. Relief.
An application under Section 170 MV Act was filed on behalf of the respondent No.3 which was dismissed vide order dated 3.11.2014.
10. On behalf of the petitioners, the petitioner No.2 Smt. Vimla Devi appeared in the witness box as PW1 and led her evidence by way of affidavit Suit No. 446/14 Page no. 10 of 66 Pramod Saw Vs Sushant Taneja & Ors.
which is Ex.PW1/A reiterating the averments made in the claim petition. She stated that the deceased was hale and hearty at the time of accident. Copy of election I Card of the petitioner No.1 is Ex.PW1/1, copy of residential certificate of PW1 is Ex.PW1/2, copy of certificate issued by Sarpanch is Mark PW1/3, copy of annual Secondary Examination Certificate from Bihar School Examination Board, Patna of the deceased is Ex.PW1/4, copy of mark sheet of Secondary School Examination is Ex.PW1/5, copy of provisional certificate and mark sheet issued by National Institute of Open Schooling are Ex.PW1/6 (colly), copy of DL of the deceased is Ex.PW1/7, copy of PAN card of the deceased is Ex.PW1/8, copy of death certificate of the deceased is Ex.PW1/9, DAR is Ex.PW1/10 and copy of election ID card is Ex.PW1/11 and copy of salary slip for the month of November, 2013 is Mark PW1/12.
11. Shri Praveen Kumar was produced in the witness box as PW2 and he led his evidence by way of affidavit which is Ex.PW2/A. He deposed that he was the eye witness in case FIR No.10/14, u/s 279/338 IPC PS Delhi Cantt. He stated that on 03.01.2014, he was going driving his motorcycle number WB368033 and his friend Sagar Kumar was sitting as a pillion rider on his motorcycle. He stated that he was going by the road demarcated between Subroto Park and R&R Hospital and in the meantime a car bearing No.DL8CR3819 being driven by the respondent No.1 in rash and negligent manner breaking all traffic rules and regulations came in the line of PW2 from Dhaula Kuan side and hit the motorcycle with heavy force which was going in Suit No. 446/14 Page no. 11 of 66 Pramod Saw Vs Sushant Taneja & Ors.
its lane and as a result PW2 and his late friend Sagar Kumar fell down. The respondent No.1 took the deceased and PW2 to R& R Hospital and got them admitted there. He stated that if the driver of the vehicle No.DL8CR3819 had been bit cautious, the accident could have been avoided. He stated that the accident had been caused purely due to the rash and negligent act on the part of the driver of the offending vehicle as he had not driven in his lane and came to the lane of PW2 which was demarcated in the service road by putting pollards in between the road and a separate road was being created between Air Force Suborto Park Red Light to R&R Hospital which was specially meant for the vehicles and pedestrians going from Suborto Park to R&R Hospital. Copy of I Card of PW2 is Ex.PW2/1, copy of DL of PW2 is Ex.PW2/2, site plan reflecting way of R&R Hospital is Ex.PW2/3, photograph of the spot of accident is Ex.PW2/4 and CD is Mark PW2/5.
12. Shri R.S. Rai, Warrant Officer had brought the record in respect of the deceased Sagar Kumar i.e authority letter which is Ex.PW3/1, copy of appointment letter/ call letter of the deceased for employment which is Ex.PW3/2, copy of reclassification to leading Air craftsman which is Ex.PW3/3, copy of promotion to the substantive rank of Corporal which is Ex.PW3/4, copy of matriculation mark sheet which is Ex.PW3/5, copy of record of final examination which is Ex.PW3/6, copy of mark sheet for ModuleII examination which is Ex.PW3/7, copy of policy on Assured Career Progression which is Ex.PW3/8 (colly), copy of Promotion Policy which is Ex.PW3/9, copy of policy Suit No. 446/14 Page no. 12 of 66 Pramod Saw Vs Sushant Taneja & Ors.
on grant of Honorary Commission which is Ex.PW3/10 and copy of policy on grant of Service Entry Commission which is Ex.PW3/11. He stated that the deceased was enrolled in Air Force on 28.03.2007. He became leading Air Craftsman on 01.05.2008. He was promoted to substantive rank of Corporal on 01.05.2011. He stated that he would have been due for promotion to the rank of Sergeant on 02.04.2020. He would have been eligible for grant of IInd Assured Career Progression on 01.05.2019. He stated that during his service career the deceased would have been promoted to the ranks of Jr. Warrant Officer, Warrant Officer and Master Warrant Officer as per the existing promotion policy. In addition, if he would have been alive, and remained in service till superannuation, he might have got commission to the ranks of Honorary Flying Officer and Honorary Flight Lieutenant. In case of passing SSB test, he might have got permanent commission and he would have been raised to higher echelon of Indian Air Force. He stated that as per the mark sheets submitted, he was a meritorious individual.
13. PW4 Shri V.K. Tiwari, Sergeant, Director of Air Veteran had brought the record in respect of the deceased Sagar Kumar i.e. authority letter which is Ex.PW4/1, copy of pay slips for the months of October, 2013 to December, 2013 which are Ex.PW4/2 (colly) and copy of last pay certificate which is Ex.PW4/3. He stated that if the deceased had been residing outside he was entitled for charges in lieu of quarter Rs.5,400/ p.m. and ration allowance @ Rs.79.93 per day in addition to the salary mentioned at point A in Suit No. 446/14 Page no. 13 of 66 Pramod Saw Vs Sushant Taneja & Ors.
Ex.PW4/3. However, when he was entitled for a sum of Rs.5,400/ per month in that case a sum of Rs.1,286/ mentioned at point B termed as FAA was deductible. PE was closed on 3.11.2014.
14. The respondent No.1 Sushant Taneja appeared in the witness box as R1W1 and led his evidence by way of affidavit which is Ex.R1W1/A reiterating the averments made in the written statement filed on behalf of the respondents No.1 and 2. He stated that he did not cause the accident, rather it was the driver of the motorcycle who caused the accident, hence he could not be held liable for the accident. He stated that in accordance with the terms and conditions of insurance policy, the respondent No.2 had lodged with the respondent No.3 a claim No.200101201113110124101 for the damages suffered by the car due to the accident and thereafter the respondent No.3 after duly considering the terms and conditions of the insurance policy had already approved, settled and paid the claim to the tune of Rs.28,611/ to the respondent No.2 through NEFT on 26.02.2014. Copy of Employee ID card of R1W1 is Ex.R1W1/1, copy of RC of the car is Ex.R1W1/2, copy of letter dated 7.1.2014 to the DMO/ MS of the Army Hospital is Ex.R1W1/3, copy of DL of R1W1 is Ex.R1W1/4, copy of the insurance policy is Ex.R1W1/5 and certified copy of respondent No.2's bank account statement reflecting the credit for payment of the claim is Ex.R1W1/6.
Suit No. 446/14 Page no. 14 of 66 Pramod Saw Vs Sushant Taneja & Ors.
15. On behalf of the respondent No.3, Shri Vikas Goyal was produced in the witness box as R3W1 and he led his evidence by way of affidavit which is Ex.R3W1/A. He stated that he was employed with Daffodil Software Ltd. Gurgaon. He stated that he was the eye witness of the accident that took place on 03.01.2014 involving a car bearing No.DL8CR3819 and motorcycle bearing No.WB368033 near Army Research and Referral Hospital, New Delhi. He stated that he used to go to office through car pooling arrangement with his two colleagues namely Sushant Taneja and Saurabh Sablok as all were working in the same company. Pursuant to the car pooling arrangement, all the three colleagues used to commute to their office at Gurgaon in common vehicle randomly brought by one another without taking or giving any consideration in the shape of fare or any monetary contribution or otherwise. On 03.01.2014, Sushant Taneja had brought Maruti Zen Estilo car No.DL8CR3819 which was registered in the name of respondent No.2 for private use of commuting to their office. Sushant Taneja was driving the car and he was sitting besides him in the front and Saurabh Sablok was sitting at the back seat. He stated that the car was in a very moderate speed of 3035 km per hour and was being driven in the correct lane maintaining reasonable distance from other vehicle and due care and caution, observing all traffic rules and regulations. They were on road from Dhaula Kuan towards Gurgaon NH8, a one way road with no Service Lanes on it. He stated that the spot sketch submitted by the IO along with the DAR clearly showed the spot of accident, the direction from which the vehicle was coming and the direction of Suit No. 446/14 Page no. 15 of 66 Pramod Saw Vs Sushant Taneja & Ors.
roads and it clearly showed no marking for any service lane on it. He stated that at around 08:45 AM when they reached near entrance of Army Research and Referral Hospital, Dhaula Kuan, suddenly a motorcycle No.WB368033 which was being driven by its rider at an excessive speed and in rash and negligent manner came from the wrong side from the opposite direction and dashed into the car. The speed of motorcycle was so excessive that even after seeing the car, the rider of the motorcycle could not control it or apply reasonable brake to stop it, as a result of which the motorcycle hit the car to its front left side. He stated that both the rider and pillion rider of the motorcycle were not wearing any helmet or safety gear. After the accident both of them fell down and R3W1 alongwith Sushant Taneja and Saurabh Sablok and with the help of one driver of Indica car that was passing by immediately carried the injured to the Emergency Wing of the Army Hospital and got them admitted for their treatment. He stated that the accident did not take place due to any negligence of the driver of car No.DL8CR3819. It was the rider of motorcycle No.WB368033 who was driving on the wrong side, without observing traffic rules and regulations at an excessive speed and dashed into the car and caused the accident. Copy of office identity card is Ex.R3W1/1.
16. I have heard the Learned Counsel for the petitioners as well as the Learned Counsel for the respondents and perused the record. Written notes were also filed on behalf of the insurance company which I have perused. The petitioners were also examined on 16.2.2015 in terms of the judgment of the Suit No. 446/14 Page no. 16 of 66 Pramod Saw Vs Sushant Taneja & Ors.
Hon'ble High Court on 11.1.2013 in MACA No.792/2006 titled Oriental Insurance Co. Ltd. v. Ranjit Pandey and Ors.
17. My findings on the specific issues are as under:
Issue No. 1
18. As the petition has been filed U/s 166 M.V Act it was incumbent upon the petitioners to prove that the deceased sustained injuries in an accident caused due to the rash and negligent driving by the driver of the offending vehicle. To determine the negligence of the driver of the offending vehicle it has been held in National Insurance Company Ltd. vs Pushpa Rana & Another 2009 Accident Claims Journal 287 as follows:
"The last contention of the appellant insurance company is that the respondents/claimants should have proved negligence on the part of the driver and in this regard the counsel has placed reliance on the judgment of the Hon'ble Apex Court in Oriental Insurance Company Ltd. V. Meena Variyal (supra). On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced: (i) certified copy of the criminal record of criminal case in FIR No.955 of 2004, pertaining to involvement of offending vehicle (ii) criminal record showing completion of investigation of police and issue of charge sheet under sections 279/304A, Indian Penal Code against the driver;
(iii) certified copy of FIR, wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of deceased.
Suit No. 446/14 Page no. 17 of 66 Pramod Saw Vs Sushant Taneja & Ors.
These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under the Motor Vehicle Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Hence, this contention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on part of the driver."
It is established law that in a claim petition under Motor Vehicle Act, the standard of proof to establish rash and negligent driving by the driver of the offending vehicle is not at par with the criminal case where such rashness and negligence is required to be proved beyond all shadow of reasonable doubt. In Kaushnamma Begum and others v. New India Assurance Company Limited, it was inter alia held by the Hon'ble Supreme Court that the issue of wrongful act or omission on the part of the driver of the motor vehicle involved in the accident has been left to a secondary importance and mere use or involvement of motor vehicle in causing bodily injury or death to a human being or damage to property would make the petition maintainable under Sections 166 and 140 of the Motor Vehicle Act.
19. The case of the petitioners is that on 03.01.2014, the deceased Sagar Kumar was going along with his friend Praveen Kumar as a pillion rider on his motorcycle No.WB368033 to R&R Hospital through the line between Subroto Park and R&R Hospital and a car bearing No.DL8CR3819 being driven by the respondent No.1 coming from Dhaula Kuan side in a rash and negligent manner breaking all traffic rules and regulations came in the line of the Suit No. 446/14 Page no. 18 of 66 Pramod Saw Vs Sushant Taneja & Ors.
motorcycle and hit the motorcycle which was going in its lane as a result of which both the motorcyclists fell down. The respondent No.1 took the deceased and other injured to R& R Hospital and got them admitted there where the deceased succumbed to injuries on 04.01.2014 at 06:45 AM. It was averred that if the driver of the vehicle No.DL8CR3819 had been a bit cautious, the accident could have been avoided. It was alleged that the accident had been caused purely due to the rash and negligent act on the part of the driver of the offending vehicle. It was stated that in respect of the accident FIR No.10/2014 under sections 279/338 IPC was registered at PS Delhi Cantt. In paras 2 and 3 of his affidavit Ex.PW1/A the petitioner No.2 had reiterated the mode and manner of the accident as stated in the claim petition. The petitioners in support of their case had examined PW2 who in paras 2 and 3 of his affidavit Ex.PW2/A had also reiterated the mode and manner of the accident. Site plan reflecting way of R&R Hospital is Ex.PW2/3, photograph of the spot of accident is Ex.PW2/4 and CD is Mark PW2/5.
20. The IO had filed Detailed Accident Report containing the criminal record consisting of copy of charge sheet; copy of tehrir, copy of FIR; copy of site plan; copy of DD; copy of arrest memo and personal search memo, copy of seizure memos; copy of mechanical inspection report of the offending vehicle and of the motorcycle No.WB368033, copy of MLC and medical documents, copy of the notice under Section 133 MV Act, copy of verification report of the RC of the offending vehicle with the copy of the RC, copy of the insurance Suit No. 446/14 Page no. 19 of 66 Pramod Saw Vs Sushant Taneja & Ors.
policy of the offending vehicle and its verification report and verification report of DL of the respondent No.1 with a copy of the DL, copy of school certificate of the respondent No.1, copy of order on application for release of the offending vehicle on superdari along with a copy of the superdarinama and copy of pay slip of the deceased. As per the FIR No.10/14 under sections 279/338 IPC, PS Delhi Cantt the case was registered on the basis of complaint of CPL Praveen Kumar who was stated to be driving the motorcycle on which the deceased was travelling and has been examined as PW2 and he had stated about the manner of the accident. As per the charge sheet the respondent No.1 has been charge sheeted for the offence under sections 279/338/304A IPC.
21. The respondents No.1 and 2 had filed the written statement averring that the respondent No.1 had a car pooling arrangement with his two colleagues namely Saurabh Sablok and Vikas Goyal who were also employed in the same company as his. On 03.01.2014, the respondent No.1 had taken out the family Zen Estilo Maruti Car bearing No.DL8CR3819 and when they were traveling in the vehicle on their way to Gurgaon and the vehicle was being driven in its correct lane by the respondent No.1 at a moderate speed of 3035 km per hour with due care and caution observing all traffic rules and regulations, when they reached the main entrance of Army Research and Referral Hospital at Dhaula Kuan at around 08:45 a.m, a motorcycle with two riders bearing No.WB368033 which was being driven by its driver at an Suit No. 446/14 Page no. 20 of 66 Pramod Saw Vs Sushant Taneja & Ors.
excessive speed and in rash and negligent manner on wrong side of the road, suddenly appeared from the opposite direction in front of the vehicle. The speed of the motorcycle was so excessive that its driver could neither control it nor bring it to abrupt halt on sighting the vehicle and resultantly the motorcycle hit the vehicle on its left side thereby causing the accident. Both the riders of motorcycle were not wearing helmets and were thus unmindful of their own safety as well as the safety of other passersby. After the accident, the respondent No.1 and the other two occupants of the vehicle immediately attended upon the two injured motorcyclists and with the help of driver of an Indica car that was passing by, carried the injured motorcyclists to the Emergency Wing of Army Hospital, Dhaula Kuan and got them admitted there for their treatment. It was averred that the respondent No.1 did not cause the accident and the cause of accident lay solely with the deceased motorcyclist and his corider and the respondents No.1 and 2 could not be held liable for the accident. In fact the respondent No.1 wrote a letter dated 07.01.2014 to the DMO/Medical Superintendent, Army Hospital Research & Referral, Subroto Park, Dhaula Kuan, requesting them to preserve the CCTV footage of the accident site and for a copy of the same to be submitted with the authorities to meet the consequences flowing out of the accident in a just and fair manner. However the DMO/ Medical Superintendent failed to give any response to the letter of the respondent No.1. It was denied that the car bearing No.DL8CR3819 was being driven by the respondent No.1 in a rash and negligent manner breaking all traffic rules and regulations. The respondent No. Suit No. 446/14 Page no. 21 of 66 Pramod Saw Vs Sushant Taneja & Ors.
1 had also appeared in the witness box as R1W1 and deposed to that effect. He stated that in accordance with the terms and conditions of insurance policy, the respondent No.2 had lodged with the respondent No.3 a claim No. 200101201113110124101 for the damages suffered by the car due to the accident and thereafter the respondent No.3 after duly considering the terms and conditions of the insurance policy had already approved, settled and paid the claim to the tune of Rs.28,611/ to the respondent No.2 through NEFT on 26.02.2014. Copy of letter dated 7.1.2014 to the DMO/ MS of the Army Hospital is Ex.R1W1/3 and certified copy of respondent No.2's bank account statement reflecting the credit for payment of the claim is Ex.R1W1/6.
22. The respondent No.3 had produced Shri Vikas Goyal who was with the respondent No.1 in the car at the time of the accident in the witness box as R3W1 and he deposed that he was the eye witness of the accident that took place on 03.01.2014 involving a car bearing No.DL8CR3819 and motorcycle bearing No.WB368033 near Army Research and Referral Hospital, New Delhi. Pursuant to the car pooling arrangement, on 03.01.2014, Sushant Taneja had brought Maruti Zen Estilo car No.DL8CR3819 and the car was in a very moderate speed of 3035 km per hour and was being driven in the correct lane maintaining reasonable distance from other vehicle and due care and caution, observing all traffic rules and regulations. They were on road from Dhaula Kuan towards Gurgaon NH8, a one way road with no Service Lanes on it. He stated that the spot sketch submitted by the IO along with the Suit No. 446/14 Page no. 22 of 66 Pramod Saw Vs Sushant Taneja & Ors.
DAR clearly showed the spot of accident, the direction from which the vehicle was coming and the direction of roads and it clearly showed no marking for any service lane on it. He stated that at around 08:45 AM when they reached near entrance of Army Research and Referral Hospital, Dhaula Kuan, suddenly a motorcycle No.WB368033 which was being driven by its rider at an excessive speed and in rash and negligent manner came from the wrong side from the opposite direction and dashed into the car. The speed of motorcycle was so excessive that even after seeing the car, the rider of the motorcycle could not control it or apply reasonable brake to stop it, as a result of which the motorcycle hit the car to its front left side. He stated that both the rider and pillion rider of the motorcycle were not wearing any helmet or safety gear. After the accident both of them fell down and R3W1 alongwith Sushant Taneja and Saurabh Sablok and with the help of one driver of Indica car that was passing by immediately carried the injured to the Emergency Wing of the Army Hospital and got them admitted for their treatment. He stated that the accident did not take place due to any negligence of the driver of car No.DL8CR3819. It was the rider of motorcycle No.WB368033 who was driving on the wrong side, without observing traffic rules and regulations at an excessive speed and dashed into the car and caused the accident. Copy of office identity card is Ex.R3W1/1. Thus the case of the petitioners is that the motorcycle on which the deceased was travelling was going in the right direction and the accident took place due to the negligence of the respondent No.1 whereas the case of the respondent No.1 is that the motorcycle was Suit No. 446/14 Page no. 23 of 66 Pramod Saw Vs Sushant Taneja & Ors.
being driven on the wrong side and the accident took place due to the rash and negligent driving of PW2.
23. During crossexamination by the learned counsel for the respondents No.1 and 2 PW1 stated that the date of the accident was 03.01.2014. She stated that she was not present at the spot of the accident. She admitted that she did not have any personal knowledge as to how the accident had occurred as she was not present at the spot. During cross examination by the learned counsel for the respondent No.3 PW1 stated that at the time of the accident she was present at her residential place at Nalanda, Bihar. She stated that they are primarily residents of Bihar only. Thus PW1 stated that she was not present at the spot of the accident and she did not have any personal knowledge as to how the accident had occurred as she was not present at the spot and at the time of the accident she was present at her residential place at Nalanda, Bihar. As such PW1 was not an eye witness to the accident. The petitioners in support of their case had examined PW2 who was driving the motorcycle on which the deceased was travelling and during crossexamination by the learned counsel for the respondents No.1 and 2 PW2 stated that he was working in Air Force since 27.12.2006. He joined in the capacity of Air Craftsman and subsequently was promoted to Corporal. He had got the said promotion after 4 years. He stated that the accident had taken place on 03.01.2014 at about 8.50 a.m. At the time of the accident he was driving his bike bearing No.WB368033. He stated that he was the registered Suit No. 446/14 Page no. 24 of 66 Pramod Saw Vs Sushant Taneja & Ors.
owner of the bike. At the time of the accident he and the deceased were wearing helmet which was manufactured by Studds. He denied the suggestion that they were neither wearing nor carrying any helmet. He stated that he had not given any instructions to the police for the preparation of the site plan Ex.R1W1/A. He denied the suggestion that the vehicles carrying patients were only allowed to go on the road demarcated between Subroto Park and R&R Hospital volunteered service personnel of Army, Air Force and Navy were also allowed to go there. He stated that it was a one way road. He denied the suggestion that only the patients were allowed to go on the road where the accident took place. He denied the suggestion that the accident took place because the motorcycle hit the car from front. He denied the suggestion that the accident had taken place as he was driving the motorcycle in a rash and negligent manner. He denied the suggestion that he became unconscious after the accident or that he did not see the driver of the offending car.
24. During crossexamination by the learned counsel for the respondent No.3/ insurance company PW2 stated that at the time of the accident he was driving the motorcycle. He stated that the photographs Ex.PW2/4 (colly) had been taken in his presence by the photographer on or around 10.9.2014. He had brought the CD in respect of the photographs. He stated that the site plan had been got prepared by a person from Tis Hazari Court. He denied the suggestion that the site plan had been prepared by Anil Kumar Sharma in collusion with him to support the claim. He denied the suggestion that he Suit No. 446/14 Page no. 25 of 66 Pramod Saw Vs Sushant Taneja & Ors.
was going on the wrong side so the accident took place. He denied the suggestion that at the time of the accident there were no pollards. He stated that he had seen the car coming. He denied the suggestion that the accident had occurred due to his negligence or that he had reasonable opportunity to avoid the accident. Thus PW2 stated that at the time of the accident he was driving his bike bearing No.WB368033 and there is no dispute about the same. He stated that at the time of the accident he and the deceased were wearing helmet which was manufactured by Studds. R1W1 and R3W1 had stated that PW2 and the deceased were not wearing helmets at the time of the accident whereas PW2 had stated that they were wearing helmets. Section 129 of the Act provides that every person driving or riding on a motorcycle shall, while in a public place, wear protective headgear and the explanation provides that 'protective headgear' means a helmet which should conform to what is stated in the Explanation. In Siby Paul v. Parveen Kumar 11 (2009) ACC 533 (DB) Hon'ble High Court of Kerala observed:
"4. Before parting with this matter, we feel obliged to take note of the conduct of the petitioner which led to the head injury for him and the consequent disability at a very young age. Section 129 of the Motor Vehicles Act, 1988 provides for wearing of protective head gear by those riding twowheelers. Under explanation to the said section protective head gear is 'helmet', the use of which has proved its capacity to protect the rider from head injury in the event of accident. The section specifically states that every driver and pillion rider of a Suit No. 446/14 Page no. 26 of 66 Pramod Saw Vs Sushant Taneja & Ors.
motorcycle of any class or description shall wear a protective head gear. The Supreme Court in the case of Ajay Canu v. Union of India, II (1988) ACC 554 (SC) = (1988) 4 SCC 156, held that wearing of crash helmet is mandatory for drivers of twowheelers. The violation of mandatory provision of the Act and Rules attract penal provisions. But so long as the riders are not caught, they will escape from punishment. However, apart from punishment, if a rider gets into an accident and suffers head injury, we feel defence will be available to the Insurance Company to plead that there is contributory negligence, inasmuch as the use of helmet would have reduced the impact of the accident which has resulted in head injury for the rider. When protection that a helmet provides to a rider is statutorily recognized and when it is mandatory under statute for the riders and drivers of twowheelers to wear the same, we feel it is a matter to be considered by the Motor Accident Claims Tribunal as to whether the injured in a motor bike accident had suffered head injury and if so, whether at the time of accident the driver or pillion rider, as the case may be, who claims compensation for head injury was wearing a helmet. If the protective head gear, namely, helmet, the use of which is mandatory under Section 129 of the Act, was not worn by the drivers or pillion riders who sustained head injury, then contributory negligence can be assumed, if not for causing the accident but for sustaining injury which could have been prevented or the impact of which could have been reduced through compliance of the statutory provision by wearing a helmet. In fact the want of helmet for the rider may not be contributory to the accident. However, the use of helmet would prevent head injury or at least reduce the impact of the injury in the event of accident for the driver and pillion rider of the bike or twowheeler. Therefore, in our opinion, it is for the Tribunal to consider whether in case of claim of compensation for death or injury of drivers or pillion riders of twowheelers they were wearing helmet at the time of accident and if not whether Suit No. 446/14 Page no. 27 of 66 Pramod Saw Vs Sushant Taneja & Ors.
wearing of helmet would have prevented the death or injury or reduced the impact of the injury and if the same would be reckoned as an aspect of contributory negligence for reducing the compensation amount."
Thus it was held that it was for the Tribunal to consider whether in case of claim of compensation for death or injury of drivers or pillion riders of two wheelers they were wearing helmet at the time of accident and if not whether wearing of helmet would have prevented the death or injury or reduced the impact of the injury and if the same would be reckoned as an aspect of contributory negligence for reducing the compensation amount. In the instant case the medical documents show that the deceased had sustained head injury and in the medical certificate of cause of death it was stated that the disease or condition directly leading to death was severe head injury (OPTD) and the same could be if the deceased was not wearing helmet at the time of the accident. However there is no cogent evidence to conclusively say whether the deceased was wearing a helmet or not at the time of the accident and there is nothing in the DAR to show whether any helmet was seized from the spot of accident or not. As such no contributory negligence is being attributed to the deceased for allegedly failing to wear helmet which could have prevented the head injury.
25. PW2 further stated that he had not given any instructions to the police for the preparation of the site plan Ex.R1W1/A. A suggestion was put to PW2 that the vehicles carrying patients were only allowed to go on the road Suit No. 446/14 Page no. 28 of 66 Pramod Saw Vs Sushant Taneja & Ors.
demarcated between Subroto Park and R&R Hospital which he denied and volunteered that service personnel of Army, Air Force and Navy were also allowed to go there. He stated that it was a one way road. A suggestion was also put to him that the accident took place because the motorcycle hit the car from front which he denied. However a perusal of the mechanical inspection report of the motorcycle shows that both the front shockers and handle and axle were freshly damaged, the front tyre was freshly burst, the front mudguard was freshly broken, headlight, cover and both indicators were freshly broken and the left side leg guard was freshly damaged. Thus there was extensive damage to the front side of the motorcycle. The mechanical inspection report of the offending vehicle shows that the front left side body and engine bonnet were freshly damaged, the front bumper and jali and number plate were freshly damaged from the left side, the left side head light was freshly broken and the front glass was cracked. As such the damage to the offending vehicle was on the front left side. PW2 was crossexamined on the documents filed by him and he stated that the photographs Ex.PW2/4 (colly) had been taken in his presence by the photographer on or around 10.9.2014 i.e. much after the accident. He stated that the site plan had been got prepared by a person from Tis Hazari Court but the same was also much after the accident. Suggestions were put to him that he was going on the wrong side so the accident took place or that at the time of the accident there were no pollards which he denied. It is however pertinent that he stated that he had seen the car coming and as such he would have had the occasion to Suit No. 446/14 Page no. 29 of 66 Pramod Saw Vs Sushant Taneja & Ors.
avoid the accident. However the accident still took place and the extent of damage to both the vehicles shows that both the vehicles were at high speed.
26. During crossexamination by the learned counsel for the petitioners R1W1 admitted that he was arrested by the police in the criminal case and he was on bail in the case. He had not made any complaint to higher police officials regarding his false implication in the present case volunteered he had asked for preserving the CCTV Footage vide Ex.R1W1/3. He had also written to the Asstt. Commissioner of Police for preserving the CCTV Footage vide Ex.R1W1/7. He stated that he had followed up the said letters but the CCTV Footage was not given to him. He denied the suggestion that he had given the said letters in order to create false evidence in his favour. He admitted that there was a service lane next to the highway going towards Gurgaon. He denied the suggestion that at the time of the accident there was any partition in the service lane for enabling the patients to go to R.R Hospital. He admitted that there are patients, staff and visitors going to R.R. Hospital volunteered they go from the absolute left corner of the road. He denied the suggestion that the injured and the deceased on the day of the accident were going by their motorcycle at a normal speed from the partition. He denied the suggestion that he was driving at high speed at the time of the accident. He denied the suggestion that at the time of the accident there was no separate partition for the patients going through RR Hospital or there was no warning that if the said road was taken it would cause inconvenience to the patient or Suit No. 446/14 Page no. 30 of 66 Pramod Saw Vs Sushant Taneja & Ors.
that he had violated the partition and the traffic rules and the warning and he went into the partition and caused the accident. He denied the suggestion that the deceased and the injured were wearing helmets being Air Force personnel and were not allowed to come outside the camp without wearing helmets. He denied the suggestion that he was deposing falsely in order to create false defence in the criminal case and in order to avoid paying compensation to the family of the deceased.
27. During crossexamination by the learned counsel for the insurance company R1W1 stated that at the time of the accident, Vikas Goel was sitting on the seat next to him. He stated that he also used to work in his office. He stated that his vehicle was damaged from the left side. R1W1 thus admitted that there was a service lane next to the highway going towards Gurgaon and even the site plan prepared by the IO shows a slip road though he denied the suggestion that at the time of the accident there was any partition in the service lane for enabling the patients to go to R.R Hospital. He admitted that there are patients, staff and visitors going to R.R. Hospital but he volunteered that they go from the absolute left corner of the road. Apart from that mainly suggestions were put to him which he denied.
28. During crossexamination by the learned counsel for the petitioners R3W1 stated that he knew Sushant for the previous 1 1/2 years. They worked together. He stated that they did not have visiting relations with Suit No. 446/14 Page no. 31 of 66 Pramod Saw Vs Sushant Taneja & Ors.
each other. He stated that the affidavit Ex.R3W1/A had been got prepared by the Counsel for the insurance company Ms. Sunanda and he received the same the day before volunteered he was required to fill the information for the same. He stated that there was no written agreement on who would take the car on which day. The accident had taken place on 03.01.2014. He had not produced any document to show that he had gone to his office on the said date. He denied the suggestion that he had not gone with Sushant on the date of the alleged accident. He admitted that while going towards Gurgaon from Dhaula Kuan the RR Hospital comes on the left side and that there is a red light at Subroto Park Station. He denied the suggestion that there was a service road parallel to the road going to Gurgaon. He admitted that the entry to RR Hospital was from the road going to Gurgaon from Dhaula Kuan. He stated that there was no service road so the question of the patients or their relatives using the same did not arise. He however admitted that the staff etc. used the extreme left side of the road. He denied the suggestion that the deceased and his friend were going on their motorcycle on the said road on the day of the accident. He stated that the motorcycle had hit the car on the left side. He denied the suggestion that the car had hit the motorcycle from its left side. He denied the suggestion that the accident had taken place due to the negligence of respondent No.1. He denied the suggestion that the deceased and his friend were wearing helmets and were going at normal speed. The distance between the red light and entry to RR Hospital was about 300 meters. He denied the suggestion that due to the distance being only 300 Suit No. 446/14 Page no. 32 of 66 Pramod Saw Vs Sushant Taneja & Ors.
meters and due to flow of vehicles on the said road, the speed of the motorcycle of the deceased could not be much. He denied the suggestion that he was deposing falsely and he had filed a false affidavit in connivance with the insurance company and the respondent No.1 in order to help the respondent No.1 in the criminal case and to avoid payment of compensation to the petitioners. He denied the suggestion that the respondent No.1 was driving at a fast speed.
29. During crossexamination by the learned counsel for the respondent No.1 R3W1 stated that the affidavit had been got prepared by Ms. Sunanda on his instructions. Thus R3W1 stated that his affidavit had been got prepared by the Counsel for the insurance company Ms. Sunanda but he also stated that the same was prepared on his instructions. A suggestion was put to R3W1 that he had not gone with Sushant on the date of the alleged accident which he denied and throughout, the case of the respondents No.1 and 2 has been that R3W1 was also in the offending vehicle at the time of the accident. A suggestion was put to him that there was a service road parallel to the road going to Gurgaon which he denied but as observed above, even the site plan placed on record with the DAR shows a slip road and in the FIR it was recorded that the motorcycle in accidental condition was found standing on the side of the service road. As such it cannot be disputed that a service road existed. He admitted that the entry to RR Hospital was from the road going to Gurgaon from Dhaula Kuan and that the staff etc. used the extreme Suit No. 446/14 Page no. 33 of 66 Pramod Saw Vs Sushant Taneja & Ors.
left side of the road. He stated that the motorcycle had hit the car on the left side. He stated that the distance between the red light and entry to RR Hospital was about 300 meters. A suggestion was put to him that due to the distance being only 300 meters and due to flow of vehicles on the said road, the speed of the motorcycle of the deceased could not be much which he denied but even from the record that does not appear to be so as PW2 had stated that he had seen the offending vehicle and if he was not at much speed he would have been able to avoid the accident or the severity of the accident would have been much less.
30. It is thus seen that the witnesses were extensively crossexamined and the main issue raised is whether the motorcycle was going in the wrong direction or the offending vehicle had gone onto the wrong lane with the petitioners contending that the service road was meant for patients and other staff and personnel going to the Hospital and the respondents contending that there was no demarcation in the road. As observed above it cannot be disputed that there was a service road at the spot of the accident and the criminal record also shows the same. However whatever may be the directions in which PW2 and the respondent No.1 were going what is material in the instant case is that it is abundantly clear that both the vehicles were at fault in causing the accident which is evident from the impact of the accident and the fact that there is no averment from either side that any effort was made to avert the accident. The learned counsel for the insurance company had made Suit No. 446/14 Page no. 34 of 66 Pramod Saw Vs Sushant Taneja & Ors.
extensive submissions on the negligence of the vehicle on which the deceased was travelling and she had relied on the judgment in Reshma Kumari & Ors. v. Madan Mohan, Civil Appeal No.4646 of 2009 where it was held by the Hon'ble Apex Court that "under section 166, it is necessary for a claimant to prove negligence on the part of the driver or owner of the vehicle.
"The burden is on the claimant to establish the negligence on the part of the driver or owner of the vehicle and on proof thereof, the claimant is entitled to compensation." It was also argued that it has been observed in catena of judgments by Hon'ble Apex Court that where two vehicles are involved, the damage is to be apportioned appropriately and reliance in that respect has been placed on APSRTC & Ors. v. K. Hemlata & Ors., Civil Appeal No. 36233626 (arising out of SLP (C) 1095010953 of 2005), decided on 16.05.2008. Further reliance has been placed on Minu Rout & Anr. v. Satya Pradyumna Mohapatra & Ors., Civil Appeal No.7368 of 2013 arising out of SLP (C) No. 31402 of 2011 where in a case of head on collision between the car and truck, the Hon'ble Supreme Court held 50% contributory negligence on part of both the vehicles; Bijoy Kumar Dugar v. Bidhyadhar Dutta & Ors., Civil Appeal No. 37313732 of 2002 decided on 01.03.2006 where also in a case of head on collision, the drivers of both the vehicles were held to have contributed equally to the accident. Reliance has also been placed on Tamilnadu State Corporation, Tanjore v. Natranjan & Ors., Civil Appeal No. 3991 of 2003 where the Hon'ble Supreme Court had set aside the liability of 50% but it appears to be a case of contributory negligence and not of Suit No. 446/14 Page no. 35 of 66 Pramod Saw Vs Sushant Taneja & Ors.
composite negligence. However in the instant case, the deceased in respect of whose death the present claim petition has been filed was a pillion rider on the motorcycle and there is nothing to show that he had contributed to the happening of the accident.
31. In the instant case as two vehicles were involved in causing the accident, it would be a case of composite negligence. The law is well settled that the claimants can chose the insurer and insured in respect of the vehicles as tort feasors to recover the compensation amount. In Om Wati & Ors. v. Mohd. Din & Ors. 2001 91 DLT 184 (decided by DB of Hon'ble High Court of Delhi) it was observed:
"Coming to the question of 'apportionment' it seems to us that First Appellate Court was in error in holding that claimants would have to forego 30% share of their awarded compensation in favour of the joint tortfeasors of the truck present before the Court as they had failed to implead tort feasors of the car as partyrespondents in their claim suits. This is because the accident could not be wholly treated to be the result of contributory negligence. Even, if it was assumed that the drivers of the two vehicles contributed to the accident in some measure, the other two deceased who were travelling in the car could not be held responsible for any such negligence. Therefore, it was a case of composite negligence in their case. The principle of composite negligence is that where more than one person are responsible for commission of the wrong, the person wronged has a choice of proceedings against all or any one or more. Any one of the wrong doer is liable for the whole damage if it is otherwise made out. In other Suit No. 446/14 Page no. 36 of 66 Pramod Saw Vs Sushant Taneja & Ors.
words the liability of two sets of tortfeasors becomes both joint and several."
Similar is the position in the present case wherein the deceased was travelling on the motorcycle and the claimants would have a choice of proceedings against all or any one or more. This judgment was referred to by the Hon'ble High Court of Delhi in Raj Pal Kaur & Ors. v. Pawan Gir & Ors. CM(C)1187/2013 decided on 30.10.2013 and it was held that the FIR was registered against the truck driver and the petitioners/ claimants had rightly sought relief against the said vehicle. In the present case as well the FIR had been registered against the respondent No.1, the driver of the car and the present petition have been filed seeking relief against the said car.
32. Further the Hon'ble Supreme Court in T.O. Anthony v. Karvarnan & Ors., (2008) 3 SCC 748, held: "6. 'Composite negligence' refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrongdoers, it is said that the person was injured on account of the composite negligence of those wrongdoers. In such a case, each wrongdoer is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrongdoer separately, nor is it necessary for the court to determine the extent of liability of each wrongdoer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then Suit No. 446/14 Page no. 37 of 66 Pramod Saw Vs Sushant Taneja & Ors.
the negligence of the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence."
Thus it was held by the Hon'ble Supreme Court that each wrongdoer is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In the present case the petitioners have proceeded only against the driver, owner and insurer of the offending car.
33. Coming to the facts of the present case, the criminal record has been placed on record which shows that the respondent No.1 has been charge sheeted for the offence under Sections 279/338/304A IPC. During crossexamination R1W1 admitted that he was arrested by the police in the criminal case and he was on bail in the case. He stated that he had not made any complaint to higher police officials regarding his false implication in the present case though he volunteered that he had asked for preserving the CCTV Footage vide Ex.R1W1/3. He had also written to the Asstt. Commissioner of Police for preserving the CCTV Footage vide Ex.R1W1/7. He stated that he had followed up the said letters but the CCTV Footage was not given to him. As such there is nothing to show that the respondent No.1 had made any complaint against his false implication in the present case. In Suit No. 446/14 Page no. 38 of 66 Pramod Saw Vs Sushant Taneja & Ors.
Basant Kaur and others v. Chattar Pal Singh and others 2003 ACJ 369 MP (DB) it was observed that registration of criminal case against the driver of the offending vehicle was enough to record a finding that the driver of the offending vehicle was responsible for causing the accident. There is nothing to disprove the involvement of vehicle No.DL8CR3819. In view of the testimony of PW1 and PW2 and the documents on record which have remained unrebutted, the negligence of the respondent No.1 has been prima facie proved.
34. It was stated that due to the accident both the motorcyclists fell down. The respondent No.1 took the deceased and other injured to R& R Hospital and got them admitted there where the deceased succumbed to injuries on 04.01.2014 at 06:45 AM. The medical documents are on record which show that the deceased had sustained head injury and in the medical certificate of cause of death it was stated that the disease or condition directly leading to death was severe head injury (OPTD). Thus it stands established that the deceased had sustained injuries in the alleged accident. This issue is accordingly decided in favour of the petitioners and against the respondents. Issue No.2
35. Since issue No.1 has been decided in favour of the petitioners they would be entitled to compensation as per the provisions of the Act. The Suit No. 446/14 Page no. 39 of 66 Pramod Saw Vs Sushant Taneja & Ors.
petitioners are the legal representatives of the deceased being the parents of the deceased. PW1 was crossexamined on the point of dependency and during crossexamination by the learned counsel for the respondents No.1 and 2 PW1 stated that she is a housewife. The name of her husband is Mr. Pramod Saw. She stated that her husband used to do the work of farming volunteered after the accident he was in shock and had not attended to the same. She denied the suggestion that her husband was still doing the work of farming. She had three children namely Prakash Chander, aged about 27 years and he was in Government service and he was married. Her second child was a daughter namely Amrita Devi aged about 25 years and she was married. Her third child was the deceased. During crossexamination by the learned counsel for the respondent No.3 PW1 denied the suggestion that her husband was doing agriculture or that they had been living in Nalanda, Bihar, hence, she and her husband were dependent on agricultural income of her husband. She denied the suggestion that her deceased son was not supporting them or that they were not dependent on him. She denied the suggestion that there was no financial loss after the death of her son to her and her family. She denied the suggestion that she had filed a false and fabricated affidavit. Thus PW1 stated that she is a housewife. During examination by the Tribunal the petitioner No.2 Vimla Devi stated that she was 44 years old at present. She stated that she was not doing anything. Being the mother the petitioner No.2 would be regarded as dependent on the deceased. PW1 had stated that her husband used to do the work of farming and Suit No. 446/14 Page no. 40 of 66 Pramod Saw Vs Sushant Taneja & Ors.
volunteered that after the accident he was in shock and had not attended to the same. However at the time of the accident he was doing the work of farming. During examination by the Tribunal the petitioner No.1 Pramod Saw stated that he was 48 years old at present. He stated that apart from the deceased, he had one married daughter and one son who was also working. He stated that he was not doing anything at present. Being the father the petitioner No.1 would not be regarded as dependent on the deceased as per the well settled law.
36. The petitioners have claimed loss of dependency on the basis that the deceased Sagar Kumar was 24 years old and was working as Account Assistant in Indian Air Force and was posted at HQ Western Air Command. He was getting a monthly salary of Rs.29,660/. The deceased was also getting annual bonus as applicable to the Government employees. It was contended that the deceased was authorized for increment and all other benefits as applicable to Central Government /defence employees. The deceased was also entitled for the benefits of pay commission whenever the same was subject to revision. The deceased had free fooding and lodging and in case the deceased started living with his family, he would have been entitled for quarter allowance as well as food allowance which was applicable to defence employees. All his allowances and benefits were subject to revision. It was stated that the salary of the deceased was increasing after every six months on increase of Dearness Allowance and also as a result of increment Suit No. 446/14 Page no. 41 of 66 Pramod Saw Vs Sushant Taneja & Ors.
annually. It was averred that the deceased was entitled for promotion from time to time and on promotion he was entitled to get the higher pay scale and all other allowances. The deceased was having a very bright future. It was contended that the airmen who are recruited in Air Force have to undergo a series of tests and meritorious students can only get selected in Indian Air Force, so it was crystal clear that the deceased was a very bright student and that is how he had been selected in the Indian Air Force. The deceased was pursuing his education privately and after passing graduation he would have been entitled to appear for the officers' examination in Indian Air Force and there was fair chance of his being selected as an officer in Indian Air force and in that case his all other remunerations would have been very high. It was averred that the deceased was a teetotaler and was possessing very sound health and physique and he was not suffering from any ailments. If he had not expired in the accident, he would have survived upto the age of at least 90 to 100 years seeing the longevity of life in the family of the deceased. The parents of the deceased were still alive and had been maintaining good health prior to the accident. The deceased would have been entitled to various benefits on his retirement and thereafter he would have been entitled for the pension also as applicable to the Central Government employees. It was submitted that the deceased was the earning member of the family and he was supporting both the petitioners. He was very laborious and used to give money to the petitioners every month. The deceased was of young age and was having a long life to survive. If the deceased had remained alive he would Suit No. 446/14 Page no. 42 of 66 Pramod Saw Vs Sushant Taneja & Ors.
have survived for another 6570 years. It was averred that due to the untimely death of Sagar Kumar, the petitioners had been deprived of his income, guidance and love and affection. He was the ray of hope for his infirm parents and he used to look after the petitioners monetarily and therefore, the petitioners used to feel very secure in life. The deceased also used to take care of his brother and sister. It was contended that if the deceased had survived, his income would have increased manifold. The deceased was very hard working and enthusiastic and was having a bright future and his income had been rising progressively. The deceased was a permanent source of income for the petitioners. It was contended that the petitioners were finding it very difficult to pull on day to day life due to nonavailability of financial help. The petitioners No.1 and 2 were worrying day and night about their old age and were feeling very insecure in absence of financial help and the accident had brought both the petitioners on the brink of hunger and starvation. The petitioners had lost their beloved son and hence they were suffering a great trauma due to the untimely death of the deceased. PW1 in paras 4 to 12 and 14 of her affidavit Ex.PW1/A had deposed to that effect. She stated that the deceased was hale and hearty at the time of accident. Copy of annual Secondary Examination Certificate from Bihar School Examination Board, Patna of the deceased is Ex.PW1/4, copy of mark sheet of Secondary School Examination is Ex.PW1/5, copy of provisional certificate and mark sheet issued by National Institute of Open Schooling are Ex.PW1/6 (colly), copy of PAN card of the deceased is Ex.PW1/8 and copy of salary slip for the month Suit No. 446/14 Page no. 43 of 66 Pramod Saw Vs Sushant Taneja & Ors.
of November, 2013 is Mark PW1/12.
37. During crossexamination by the learned counsel for the respondents No.1 and 2 PW1 stated that the deceased was working as an Accountant in the Indian Air Force. He had joined his services in the year 2007 approximately. She stated that the deceased used to earn Rs.30,000/ approximately. The deceased used to get an annual bonus but she could not tell the exact amount. She had not filed any document to show the receipt of annual bonus by the deceased. She stated that her son used to get free food and accommodation. However, she had not filed any proof of the same. She did not know whether any amount was deducted on account of food and accommodation from his salary volunteered she only knew that his food and accommodation were free. During crossexamination by the learned counsel for the respondent No.3 PW1 stated that the first posting of her son/deceased was at Jammu. She could not exactly say as to as for how many years he was at Jammu and his second posting was at Delhi which was approximately after 23 years of his first posting. He joined Air Force as an Accountant only. He was on the same designation at the time of the accident. She stated that after the accident, they had received group insurance allowance and allowances that were being deducted from his salary. She stated that her son had joined Air Force after matriculation. Her son was in BA (Final) at the time of the accident. She had not placed on record any certificate of BA1 and BA2.
Suit No. 446/14 Page no. 44 of 66 Pramod Saw Vs Sushant Taneja & Ors.
38. PW1 thus stated that after the accident, they had received group insurance allowance and allowances that were being deducted from his salary. It was argued on behalf of the insurance company that the amount of group insurance received by the petitioners is liable to be deducted from the compensation awarded. Reliance was placed on the judgments of the Hon'ble Supreme Court in United India Insurance Co. Ltd. v. Patricia Jean Mahajan, AIR 2002 SC 2607, Udham Singh Sethi v. Tamal Das and Ors and the judgment of Hon'ble High Court of Mumbai in Oriental Insurance Co. Ltd. v. Meena Tukaram Jadhav, MANU/MH/2480/2013 where it was held that "the claimant is not entitled to claim compensation in respect of which the claimant has received the benefits as a consequence of the injuries sustained which otherwise he would not have been entitled to". However it is settled law that deduction would be made only in respect of that Group Insurance benefit for which the premium was being paid by the employer. In the instant case PW1 had stated about deduction from the salary and the pay slip shows deduction of Rs.1,730/ towards AFGIS SUB. As such no deduction can be made of the amount received by the petitioners towards Group Insurance.
39. PW1 also stated that the deceased had joined his services in the year 2007 approximately. She stated that the deceased used to earn Rs. 30,000/ approximately. She stated that the deceased used to get an annual bonus but she could not tell the exact amount and she had not filed any document to show the receipt of annual bonus by the deceased. She stated Suit No. 446/14 Page no. 45 of 66 Pramod Saw Vs Sushant Taneja & Ors.
that her son used to get free food and accommodation but again she had not filed any proof of the same. She did not know whether any amount was deducted on account of food and accommodation from his salary and volunteered that she only knew that his food and accommodation was free. She stated that her son was in BA (Final) at the time of the accident though she had not placed on record any certificate of BA1 and BA2. The petitioners in support of their case had examined PW4 who had brought the record in respect of the deceased Sagar Kumar i.e. copy of pay slips for the months of October, 2013 to December, 2013 which are Ex.PW4/2 (colly) and copy of last pay certificate which is Ex.PW4/3. He stated that if the deceased had been residing outside he was entitled for charges in lieu of quarter Rs.5,400/ p.m. and ration allowance @ Rs.79.93 per day in addition to the salary mentioned at point A in Ex.PW4/3. However, when he was entitled for a sum of Rs.5,400/ per month in that case a sum of Rs.1,286/ mentioned at point B termed as FAA was deductible.
40. During crossexamination by the learned counsel for the insurance company PW4 stated that the GCB Pay mentioned in Ex.PW4/3 stood for Good Conduct Batch pay. The same was a fixed sum paid on the basis of number of years of service. CPMA stood for Composite Personal Maintenance. The same was also a fixed sum payable to every employee. CILQ stood for Compensation In Lieu of Quarter and FAA stood for Family Accommodation Allowance. Thus PW4 stated that the GCB Pay mentioned in Suit No. 446/14 Page no. 46 of 66 Pramod Saw Vs Sushant Taneja & Ors.
Ex.PW4/3 stood for Good Conduct Batch pay which was a fixed sum paid on the basis of number of years of service. CPMA stood for Composite Personal Maintenance which was also a fixed sum payable to every employee. As per the last pay certificate (it may be mentioned that DA generally increases w.e.f. 1st January of a year and the last pay certificate reflects the said increase) the total emoluments of the deceased were Rs.31,106/ p.m. However as per the settled law the amount of Rs.3200/ towards Transport Allowance is liable to be deducted. The learned counsel for the insurance company had placed reliance on the judgment in The New India Assurance Co. Ltd. v. Pramjeet Kaur, MAC Appeal 285/2010 where it was held that transport allowance, metro pass allowance and conveyance allowance could be taken as perks incidental to employment and were personal to the deceased and so were liable to be deducted from the salary. The leave ration allowance would also be liable to be deducted from the salary. PW4 had stated that if the deceased had been residing outside he was entitled for charges in lieu of quarter Rs.5,400/ p.m. and ration allowance @ Rs.79.93 per day in addition to the salary but that cannot be taken into account as it cannot be said how long the deceased would have resided outside. The learned counsel for the insurance company had also relied on the judgment Shyamwati Sharma v. Karam Singh, MANU/SC/0468/2010 wherein the Hon'ble Supreme Court had considered tax deduction of 30%. However in the instant case the taxable income and tax payable on the same is mentioned in the salary slip and the same shows that the tax payable would be hardly Rs.1,748/. Thus the income of the deceased Suit No. 446/14 Page no. 47 of 66 Pramod Saw Vs Sushant Taneja & Ors.
after making the necessary deductions for computation of loss of dependency is taken as Rs.27,300/ p.m.
41. It is the case of the petitioners that the deceased was 24 years old and it was so stated in the claim petition. During crossexamination by the learned counsel for the respondents No.1 and 2 PW1 stated that the deceased was around 24 years of age at the time of the accident. The documents of the deceased on record show that his date of birth was 12.3.1990. As such he would have been more than 23 years old on the date of the accident i.e. 3.1.2014. As per the judgment of the Hon'ble Supreme Court in Sarla Verma and others v. Delhi Transport Corporation and others 2009 ACJ 1298 (SC) the multiplier of 18 applies where the age of the deceased is 21 to 25 years. However as per the law in the case of death of a child, the multiplier would be as per the age of the claimant/ mother and not as per the age of the deceased. In the case of Mohd. Hasnain & Ors. Vs. Jagram Meena & Ors. bearing MAC. APP. No. 152/2014, decided on 24.03.2014 and in MAC.APP. 1227/2012 NEW INDIA ASSURANCE CO LTD. V. S.SHAMIM FATIMA & ORS decided on 1.4.2014 the multiplier was taken as per the age of the deceased. However In HDFC ERGO General Insurance Co. Ltd. v. Smt. Lalta Devi & Ors. MAC. APP. 189/2014 decided on 12.1.2015 the question of multiplier i.e. whether it has to be as per the age of the Claimant or as per the age of the deceased was gone into and relying upon the judgments in U.P. SRTC v. Trilok Chandara, (1996) 4 SCC 362; General Manager, Kerala State Road Transport Suit No. 446/14 Page no. 48 of 66 Pramod Saw Vs Sushant Taneja & Ors.
Corporation, Trivandrum v. Susamma Thomas (Mrs.) and Ors. (1994) 2 SCC 176; New India Assurance Company Ltd. v. Shanti Pathak (Smt.) & Ors., (2007) 10 SCC 1; Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121 and National Insurance Company Ltd. v. Shyam Singh & Ors., (2011) 7 SCC 65, it was held that the multiplier will be as per the age of the deceased or the Claimant whichever is higher. It was observed:
"23. It is urged by the learned counsel for the Claimants that multiplier has to be as per the age of the deceased and not as per the age of the Claimants. In support of his contention, the learned counsel for the Claimants places reliance on Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121 and Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65; wherein it was held that the multiplier has to be taken as per the age of the deceased.
24. This issue was gone into detail by this Court wherein the history of awarding reasonable compensation was gone into. This Court referred to a three Judge Bench decision in U.P. SRTC v. Trilok Chandara, (1996) 4 SCC 362; General Manager, Kerala State Road Transport Corporation, Trivandrum v. Susamma Thomas (Mrs.) and Ors. (1994) 2 SCC 176; another three Judge Bench decision of the Supreme Court in New India Assurance Company Ltd. v. Shanti Pathak (Smt.) & Ors., (2007) 10 SCC 1, Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121 and National Insurance Company Ltd. v.
Shyam Singh & Ors., (2011) 7 SCC 65, and in paras 4 to 8 observed as under: "4. As far as the selection of multiplier is concerned, the law is settled that the choice of multiplier is determined by the age of the deceased or that of the claimants Suit No. 446/14 Page no. 49 of 66 Pramod Saw Vs Sushant Taneja & Ors.
whichever is higher. There is a three Judges Bench judgment of the Supreme Court in U.P. State Road Transport Corporation & Ors. v. Trilok Chandra & Ors., (1996) 4 SCC 362, where the Supreme Court relied on G.M., Kerala SRTC v. Susamma Thomas, (1994) 2 SCC 176 and reiterated that the choice of the multiplier is determined by the age of the deceased or that of the claimants whichever is more. Para 12 of the report is extracted hereunder: "12. For concluding the analysis it is necessary now to refer to the judgment of this Court in the case of General Manager, Kerala State Road Transport, v. Susamma Thomas: (1994) 2 SCC 176. In that case this Court culled out the basic principles governing the assessment of compensation emerging from the legal authorities cited above and reiterated that the multiplier method is the sound method of assessing compensation. The Court observed:
"The multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalizing the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased (or that of the claimants, whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumedup over the period for which the dependency is expected to last.
Suit No. 446/14 Page no. 50 of 66 Pramod Saw Vs Sushant Taneja & Ors.
The principle was explained and illustrated by a mathematical example:
"The multiplier represents the number of Years' purchase on which the loss of dependency is capitalised. Take for instance a case where annual loss of dependency is Rs. 10,000. If a sum of Rs.1,00,000 is invested at 10% annual interest, the interest will take care of the dependency, perpetually. The multiplier in this case works out to 10. If the rate of interest is 5% per annum and not 10% then the multiplier needed to capitalise the loss of the annual dependency at Rs.10,000 would be 20. Then the multiplier i.e., the number of Years' purchase of 20 will yield the annual dependency perpetually. Then allowance to scale down the multiplier would have to be made taking into account the uncertainties of the future, the allowances for immediate lump sum payment, the period over which the dependency is to last being shorter and the capital feed also to be spent away over the period of dependency is to last etc. Usually in English Courts the operative multiplier rarely exceeds 16 as maximum. This will come down accordingly as the age of the deceased person (or that of the dependents, whichever is higher) goes up."
5.There is another three Judges‟ decision of the Supreme Court in New India Assurance Company Ltd. v. Shanti Pathak (Smt.) & Ors., (2007) 10 SCC 1, where in the case of the death of a bachelor, who was aged only 25 years, the multiplier of 5 was applied according to the age of the mother of the deceased, who was about 65 years at the Suit No. 446/14 Page no. 51 of 66 Pramod Saw Vs Sushant Taneja & Ors.
time of the accident. Para 6 of the report is extracted hereunder: "6. Considering the income that was taken, the foundation for working out the compensation cannot be faulted. The monthly contribution was fixed at Rs.3,500/. In the normal course we would have remitted the matter to the High Court for consideration on the materials placed before it. But considering the fact that the matter is pending since long, it would be appropriate to take the multiplier of 5 considering the fact that the mother of the deceased is about 65 years at the time of the accident and age of the father is more than 65 years. Taking into account the monthly contribution at Rs.3,500/ as held by the Tribunal and the High Court, the entitlement of the claim would be Rs.2,10,000/. The same shall bear interest @ 7.5% p.a. from the date of the application for compensation. Payment already made shall be adjusted from the amount due."
6. Learned counsel for the Appellant referred to Sarla Verma (supra) in support of the proposition that age of the deceased is to be taken into consideration for selection of the multiplier. As an example the multiplier taken in various cases such as in Susamma Thomas (supra), U.P. SRTC v.
Trilok Chandara, (1996) 4 SCC 362 as clarified in New India Assurance Co. Ltd. v. Charlie, (2005) 10 SCC 720 and the multiplier as mentioned in Second Schedule to the Motor Vehicles Act were compared and it was held that the multiplier as per Column No.4 in the said table was appropriate for application. Sarla Verma (supra) related to the death of one Rajinder Prakash who had left behind his widow, three minor children apart from his parents and the Suit No. 446/14 Page no. 52 of 66 Pramod Saw Vs Sushant Taneja & Ors.
grandfather. Obviously, the age of the deceased was taken into consideration for the purpose of selection of the multiplier as the deceased left behind a widow younger to him, apart from three minor children. It was not laid down as a proposition of law that irrespective of the age of the claimants, the age of the deceased is to be taken into consideration for selection of the multiplier for calculation of the loss of dependency. It is true that in Mohd.
Ameeruddin (supra 2) and P.S. Somanathan (supra 3) and National Insurance Company Ltd. v. Azad Singh (supra 5), the Hon'ble Supreme Court applied the multiplier according to the age of the deceased, yet in view of Trilok Chandra (supra) and Shanti Pathak (supra) decided by the three Judges of the Supreme Court, the judgment in Mohd. Ameeruddin (supra 2), P.S. Somanathan (supra 3) and Azad Singh (supra 5) cannot be taken as a precedent for selection of the multiplier.
7. In the latest judgment of the Supreme Court in National Insurance Company Ltd. v. Shyam Singh & Ors., (2011) 7 SCC 65, decided on 04.07.2011, the Supreme Court referred to Ramesh Singh & Anr. v. Satbir Singh & Anr., (2008) 2 SCC 667 and held that the multiplier as per the age of the deceased or the claimant whichever is higher would be applicable. Para 9 and 10 of the report are apposite: "9. This Court in the case of Ramesh Singh & Anr. v. Satbir Singh & Anr., (2008) 2 SCC 667, after referring to the earlier judgments of this Court, in detail, dealt with the law with regard to determination of the multiplier in a similar situation as in the present case. The said findings of this Court are as under: "6. We have given anxious consideration to Suit No. 446/14 Page no. 53 of 66 Pramod Saw Vs Sushant Taneja & Ors.
these contentions and are of the opinion that the same are devoid of any merits. Considering the law laid down in New India Assurance Co. Ltd. v.
Charlie, AIR 2005 SC 2157, it is clear that the choice of multiplier is determined by the age of the deceased or claimants whichever is higher.
Admittedly, the age of the father was 55 years.
The question of mother's age never cropped up because that was not the contention raised even before the Trial Court or before us. Taking the age to be 55 years, in our opinion, the courts below have not committed any illegality in applying the multiplier of 8 since the father was running 56th year of his life."
10. In our view, the dictum laid down in Ramesh Singh (supra) is applicable to the present case on all fours.
Accordingly, we hold that the Tribunal had rightfully applied the multiplier of 8 by taking the average of the parents of the deceased who were 55 and 56 years."
8. Similarly in Manam Saraswathi Sampoorna Kalavathi & Ors., v. The Manager, APSRTC, Tadepalligudem A.P. & Anr., (2010) 5 SCC 785, decided on 26.03.2010, the multiplier of 13 was applied in case of death of a young bachelor where the mother was 47 years of age."
25.There is no manner of doubt that the appropriate multiplier while awarding compensation for death of an unmarried boy, the multiplier will be selected on the basis of age of the mother of the deceased."
Suit No. 446/14 Page no. 54 of 66 Pramod Saw Vs Sushant Taneja & Ors.
This has been reiterated in Oriental insurance Co. Ltd. v. Timal & Ors. MAC. APP. 214/2013 decided on 14.1.2015; Ashok Singh v. Radhe Raman MAC. APP. 63/2015 decided on 19.1.2015 and in Reliance v. Ram Bharose MAC. APP. 1157/2014 decided on 19.1.2015 and in Shriram General Insurance Co. Ltd. v. Kusum Lata & Ors. MAC. APP. 649/2014 decided on 5.2.2015. Thus the multiplier applicable will be as per the age of the mother of the deceased in the case of an unmarried boy. The copy of the voter identity card of the petitioner No.2 is on record as per which the year of birth of the petitioner No.2 was 1970. Thus the petitioner No.2 would be around 44 years old on the date of the accident i.e. 3.1.2014. As such the multiplier applicable in the instant case would be of 14.
42. The deceased was unmarried and during crossexamination by the learned counsel for the respondents No.1 and 2 PW1 stated that the deceased was her son and he was unmarried. As such there would be 50% deduction towards the personal and living expenses of the deceased. As regards the future prospects in HDFC ERGO General Insurance Co. Ltd. v. Smt. Lalta Devi & Ors. MAC. APP.189/2014 decided on 12.1.2015 which has been further relied on in Shriram General Insurance Co. Ltd. v. Preeti & Ors. MAC. APP. 1145/2013 decided on 28.1.2015 and U.P. State Road Transport Corporation v. Shahida & Ors. MAC. APP. 325/2013 decided on 28.1.2015 it was held that the judgment in Reshma Kumari & Ors. v. Madan Mohan & Anr. (2013) 9 SCC 65 shall be taken as a binding precedent in which judgment the Hon'ble Suit No. 446/14 Page no. 55 of 66 Pramod Saw Vs Sushant Taneja & Ors.
Supreme Court while approving the ratio with regard to future prospects in Sarla Verma (Smt.) & Ors. (supra) held as under: "38. With regard to the addition to income for future prospects, in Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002], this Court has noted the earlier decisions in Susamma Thomas [Kerala SRTC v. Susamma Thomas, (1994) 2 SCC 176 : 1994 SCC (Cri) 335] , Sarla Dixit[(1996) 3 SCC 179] and Abati Bezbaruah [Abati Bezbaruah v. Geological Survey of India, (2003) 3 SCC 148 : 2003 SCC (Cri) 746] and in para 24 of the Report held as under: (Sarla Verma case [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002], SCC p. 134) "24. ... In view of the imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. (Where the annual income is in the taxable range, the words "actual salary‟ should be read as actual salary less tax‟). The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of the deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardise the addition to avoid different yardsticks being applied or different methods of calculation being adopted. Where the deceased was self employed or was on a fixed salary (without provision for annual increments, etc.), the Suit No. 446/14 Page no. 56 of 66 Pramod Saw Vs Sushant Taneja & Ors.
courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances."
39. The standardization of addition to income for future prospects shall help in achieving certainty in arriving at appropriate compensation. We approve the method that an addition of 50% of actual salary be made to the actual salary income of the deceased towards future prospects where the deceased had a permanent job and was below 40 years and the addition should be only 30% if the age of the deceased was 40 to 50 years and no addition should be made where the age of the deceased is more than 50 years. Where the annual income is in the taxable range, the actual salary shall mean actual salary less tax. In the cases where the deceased was selfemployed or was on a fixed salary without provision for annual increments, the actual income at the time of death without any addition to income for future prospects will be appropriate. A departure from the above principle can only be justified in extraordinary circumstances and very exceptional cases." It has come on record that the deceased was working since 2007. The petitioners in support of their case regarding the future prospects of the deceased had examined PW3 who had brought the record of the deceased Sagar Kumar i.e. copy of appointment letter/ call letter of the deceased for employment which is Ex.PW3/2, copy of reclassification to leading Air craftsman which is Ex.PW3/3, copy of promotion to the substantive rank of Corporal which is Ex.PW3/4, copy of matriculation mark sheet which is Ex.PW3/5, copy of record of final examination which is Ex.PW3/6, copy of Suit No. 446/14 Page no. 57 of 66 Pramod Saw Vs Sushant Taneja & Ors.
mark sheet for ModuleII examination which is Ex.PW3/7, copy of policy on Assured Career Progression which is Ex.PW3/8 (colly), copy of Promotion Policy which is Ex.PW3/9, copy of policy on grant of Honorary Commission which is Ex.PW3/10 and copy of policy on grant of Service Entry Commission which is Ex.PW3/11. He stated that the deceased was enrolled in Air Force on 28.03.2007. He became leading Air Craftsman on 01.05.2008. He was promoted to substantive rank of Corporal on 01.05.2011. He stated that he would have been due for promotion to the rank of Sergeant on 02.04.2020. He would have been eligible for grant of IInd Assured Career Progression on 01.05.2019. He stated that during his service career the deceased would have been promoted to the ranks of Jr. Warrant Officer, Warrant Officer and Master Warrant Officer as per the existing promotion policy. In addition, if he would have been alive, and remained in service till superannuation, he might have got commission to the ranks of Honorary Flying Officer and Honorary Flight Lieutenant. In case of passing SSB test, he might have got permanent commission and he would have been raised to higher echelon of Indian Air Force. He stated that as per the mark sheets submitted, he was a meritorious individual. Thus PW3 stated about the deceased being a meritorious student and about how his career had progressed. He also stated about the possible promotion avenues, if the deceased had been alive.
43. During crossexamination by the learned counsel for the respondents No.1 and 2 PW3 stated that Ex.PW3/4 was issued to the unit and Suit No. 446/14 Page no. 58 of 66 Pramod Saw Vs Sushant Taneja & Ors.
the copy was kept in the record of the deceased. He did not know which was the unit to which the deceased was posted but he could verify from the records and inform. He stated that the deceased would have been eligible to be considered for the MACPS on completion of 8 years' service in the present rank. At present he had completed approximately 7 years of total service. At the time of his death the deceased was not eligible under Ex.PW3/10 volunteered he would have been eligible if he had continued in service at a later stage. He stated that the promotion policy of Air Force was a merit based policy and it was granted on completion of certain length of service on considering the merit. He admitted that promotion was not automatic volunteered promotion was granted only on fulfillment of certain eligibility criteria. He stated that the deceased was in nontechnical grade. During cross examination by the learned counsel for the insurance company PW3 stated that the promotion hierarchy for nontechnical grade was Corporal, Sergeant, Jr. Warrant officer, Warrant Officer, Master Warrant Officer, Grant of Honorary Commission, Honorary Flying Officer, Honorary Flight Lt. The maximum age of retirement was 57 years. The same was subject to medical examination and service examinations. He was not aware whether any family member of the deceased had been given a job on compensatory ground.
44. PW3 thus stated that the deceased would have been eligible to be considered for the MACPS on completion of 8 years' service in the present rank though at present he had completed approximately 7 years of total Suit No. 446/14 Page no. 59 of 66 Pramod Saw Vs Sushant Taneja & Ors.
service. He stated that at the time of his death the deceased was not eligible under Ex.PW3/10 i.e. grant of Honorary Commission and volunteered he would have been eligible if he had continued in service at a later stage. It is pertinent that PW3 stated that the promotion policy of Air Force was a merit based policy and it was granted on completion of certain length of service on considering the merit and that promotion was not automatic and he also volunteered that promotion was granted only on fulfillment of certain eligibility criteria. He stated that the maximum age of retirement was 57 years which was subject to medical examination and service examinations. As such promotions were not automatic and were granted based on certain principles. PW3 was not aware whether any family member of the deceased had been given a job on compensatory ground but that would be immaterial for decision in the present case. Considering the facts and circumstances of the case, there is no merit in the contention of the learned counsel for the insurance company that the petitioners are not entitled to any future prospects. The petitioners would be entitled to addition of 50% of the income of the deceased towards future prospects as the deceased was less than 40 years. Accordingly the loss of dependency as per the monthly income i.e. Rs.27,300/ is calculated as under :
Rs.27,300/ X 12 (annual) - Rs.1,63,800/ (i.e. 50% towards personal expenses) = Rs.1,63,800/ + Rs.81,900/ (50% towards future prospects) X Suit No. 446/14 Page no. 60 of 66 Pramod Saw Vs Sushant Taneja & Ors.
14 (multiplier) = Rs.34,39,800/ (rounded off to Rs.34,40,000/).
45. The petitioners are also entitled to compensation for loss of love and affection, loss of estate and funeral expenses. PW1 had stated that the petitioners had spent Rs.50,000/ for performing last rites of the deceased. However there is nothing to show the same.
The total compensation is determined as under:
Loss of dependency : Rs.34,40,000/
Love and affection : Rs.1,00,000/
Loss of Estate : Rs.10,000/
Funeral expenses : Rs.25,000/
Total : Rs.35,75,000/
Thus, the total compensation would amount to Rs.35,75,000/. RELIEF
46. The petitioners are awarded a sum of Rs.35,75,000/ (Rs.Thirty Five Lacs Seventy Five Thousand only) along with interest @ 9% per annum from the date of filing of the claim petition till its realization including, interim award, if any already passed against the respondents and in favour of the petitioners. The petitioner No.1 Shri Pramod Saw would be entitled to 20% share in the awarded amount and the petitioner No.1 i.e. Smt. Vimla Devi would be entitled Suit No. 446/14 Page no. 61 of 66 Pramod Saw Vs Sushant Taneja & Ors.
to 80% share in the awarded amount.
47. For safeguarding the compensation amount from being frittered away by the claimants, directions have been given by Hon'ble Supreme Court for preserving the award amount in the case of Jai Prakash Vs. National Insurance Co. Ltd. and Others (2010) 2 Supreme Court Cases 607. In view of the directions contained in the above judgment the award amount is to be disbursed as follows:
a) 10% of the share of the petitioners No.1 and 2 be released to them by transferring it into their savings account and the remaining amount out of their share be kept in FDRs in UCO Bank, Patiala House Court, New Delhi in the following manner:
1. Fixed deposit in respect of 10% for a period of one year.
2. Fixed deposit in respect of 10% for a period of two years.
3. Fixed deposit in respect of 10% for a period of three years.
4. Fixed deposit in respect of 10% for a period of four years.
5. Fixed deposit in respect of 10% for a period of five years.
6. Fixed deposit in respect of 10% for a period of six years.
7. Fixed deposit in respect of 10% for a period of seven years.
8. Fixed deposit in respect of 10% for a period of eight years.
9. Fixed deposit in respect of 10% for a period of nine years.
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b)The respondent No.3 is directed to deposit the amount directly by way of crossed cheque in terms of the above order in UCO Bank, Patiala House Court, New Delhi in the name of UCO Bank, Patiala House Court, New Delhi A/c Shri Pramod Saw and Smt. Vimla Devi within 30 days of the passing of the award.
c) Cheque be deposited within thirty days herefrom under intimation to the petitioners. In case of default, the respondent No.3 shall be liable to pay further interest @ 12% per annum for the period of delay.
d) On the deposit of the award amount, the Branch Manager of UCO Bank, Patiala House Court, New Delhi is directed to prepare Fixed Deposit Receipts as ordered above and the balance amount be released.
e) The interest on the fixed deposits shall be paid monthly by automatic credit of interest in the savings account of the petitioners.
f) The withdrawal from the aforesaid account shall be permitted to the petitioners after due verification and the bank shall issue photo identity card to the petitioners to facilitate their identity.
g) No cheque book shall be issued to the petitioners without the permission of the court.
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h) The original fixed deposit receipts shall be retained by the bank in safe custody. However, the original pass book shall be given to the petitioners along with the photocopy of the fixed deposit receipts. Upon the expiry of period of FDR the bank shall automatically credit the maturity amount in the saving account of the beneficiary.
i) The original fixed deposit receipts shall be handed over to the petitioners on the expiry of the period of the fixed deposit receipts.
j) No loan, advance, or withdrawal shall be allowed on the said FDRs without the permission of the court.
k) On the request of the petitioners, the bank shall transfer the saving account to any other branch/bank, according to the convenience of the petitioners.
l) The petitioners shall furnish all the relevant documents for opening of the saving bank account and Fixed Deposit to Senior Manager of UCO Bank, Patiala House Court, New Delhi.
48. The petitioners shall file two sets of photographs along with their specimen signatures, out of which one set to be sent to the Nodal Officer, UCO Bank, Patiala House Court, New Delhi along with copy of the award by Suit No. 446/14 Page no. 64 of 66 Pramod Saw Vs Sushant Taneja & Ors.
Nazir and the second set be retained to the court for further reference. The photographs be stamped and sent to the bank. The petitioners shall also file the proof of residence and furnish the details of the bank account with the Nazir within a week. The petitioners shall file their complete address as well as address of their counsel for sending the notice of deposit of the award amount.
APPORTIONMENT OF LIABILITY
49. The respondent No.1 is the driver, respondent No.2 is the owner of the offending vehicle and the respondent No.3 is the insurer in respect of the offending vehicle. Thus the respondents No.1, 2 and 3 are held jointly and severally liable. No evidence has been led on behalf of the respondent No.3 to show any violation of the terms and conditions of the policy and in fact the duly verified documents in respect of the offending vehicle were placed on record by the IO with the DAR. Respondent No.3 i.e. Liberty Videocon General Insurance Co. Ltd. being the insurance company in its written statement had not denied the insurance policy. Accordingly the respondent No.3 being the insurance company shall be liable to deposit the amount of compensation on behalf of the respondents No.1 and 2. The respondent No.3 being the insurer is directed to deposit the award amount within 30 days with interest at the rate of 9% from the date of filing of the claim petition till its realization in UCO Bank, Patiala House Courts, New Delhi failing which it is Suit No. 446/14 Page no. 65 of 66 Pramod Saw Vs Sushant Taneja & Ors.
liable to pay interest at the rate of 12% per annum for the period of delay.
50. Nazir to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself. The respondent No.3 shall deposit the award amount along with interest upto the date of notice of deposit to the claimants with a copy to their counsel and the compliance report shall be filed in the court along with proof of deposit of award amount, the notice of deposit and the calculation of interest on 25.08.2015.
An attested copy of the award be given to the parties (free of cost) and a copy be also sent to the Nodal Officer, UCO Bank, Patiala House. File be consigned to Record Room.
Announced in open court
on this 26th day of May, 2015 (GEETANJLI GOEL)
PO: MACT2
New Delhi
Suit No. 446/14 Page no. 66 of 66
Pramod Saw Vs Sushant Taneja & Ors.