Delhi District Court
Smt. Rekha W/O Late Sh. Dhani Lal ...Wife vs Abbas Khan S/O Mr. Amin Khan on 4 February, 2015
IN THE COURT OF MS. RAVINDER BEDI : PRESIDING
OFFICER, MOTOR ACCIDENTS CLAIMS TRIBUNAL :
KARKARDOOMA COURTS : EAST DISTRICT : DELHI
SUIT NO : 111F OF 2012
UNIQUE CASE ID NO: 02402C0061102012
1.Smt. Rekha W/o Late Sh. Dhani Lal ...WIFE
2.Rahul S/o Late Sh. Dhani Lal
3.Ritik S/o Late Sh. Dhani Lal
4.Aakash S/o Late Sh. Dhani Lal
5.Bhumi D/o Late Sh. Dhani Lal ... CHILDREN
(Claimants no.2 to 5 through their mother/
claimant no.1)
All R/o 160, Ghondli Village,
East, Delhi110051. ... CLAIMANTS
VERSUS
1.Abbas Khan S/o Mr. Amin Khan
R/o F9, Lali Garden,
Shastri Nagar, Delhi. ... DRIVER
2.Jitender Kumar Dutta
S/o Sh. Gokul Chanda Dutta
R/o 411, Geeta Colony, Delhi. ... OWNER
3.United India Insurance Co. Ltd.
Office at : 118, IInd Floor,
Barashvulla Chowk, Chawri Bazar, Delhi. ... INSURER
Suit No. 111F/12 Smt. Rekha Vs. Abbas Khan & Ors. Page : 1/14
4.Inder Dev
R/o A480, BlockA,
Pandav Nagar, Delhi92. ... INSURED
... RESPONDENTS
Represented by : Mr. Ajit Kumar, Counsel for petitioner.
Mr. S.A. Khan, counsel for Respondents no.1 and 2. Mr. Vinod Kaul, Counsel for Respondent no.3.
Date of institution : 27.02.2012 Reserved for orders : 02.02.2015 Date of Award : 04.02.2015 A W A R D
1. The present DAR claim has been filed by the police in respect of the road side accident dated 02.02.2012 in which deceased Sh. Dhani Lal suffered fatal injuries.
2. To put succinctly, an FIR No.41/12 was registered on the statement of complainant Amish Das who stated that he alongwith the deceased Sh. Dhanil Lal had left the house for their work at around 7.30 AM on foot. Deceased was employed as a driver of Metro Feeder Bus. A TSR bearing registration no. DL1RM0359 driven by respondent no.1 in a high speed, hit the deceased from behind. As a result of which, he fell down due to impact and sustained grievous injuries. He was taken to LBS hospital due to severe head Suit No. 111F/12 Smt. Rekha Vs. Abbas Khan & Ors. Page : 2/14 injury and bleeding but the injuries proved fatal to him. The driver of the TSR fled from the spot. A case FIR no.41/12 U/s 279/304A IPC was registered at Police Station Geeta Colony against respondent no. 1.
3. It is stated that the respondent no.1 is the driver, the respondent no. 2 is the owner in possession, respondent no.3 is the insurer and respondent no.4 is the insured, and all are jointly and severally liable to pay compensation to the claimants.
4. It is worthwhile to state that the respondent no. 4 was served by way of publication and ultimately was proceeded ex parte. The respondent no. 1 & 2 filed their joint Written Statement and have denied the accident having taken place with the offending vehicle and alleged their false implication in criminal case.
5. The respondent no.3 in its Written Statement the TSR bearing registration no. DL1RM0359 was insured vide Policy valid from 28.01.2012 to 27.01.2013 in the name of respondent no. 4 Sh. Inder Dev.
6. On the basis of the pleadings, following issues were framed by Ld. Predecessor vide order dated 01.09.2012 :
i)Whether petitioners prove that they are legal heirs of the deceased?
Suit No. 111F/12 Smt. Rekha Vs. Abbas Khan & Ors. Page : 3/14
ii) Whether deceased suffered fatal injuries in a road accident on 01.02.2012 involving vehicle i.e., TSR bearing registration no. DL1RM0359 driven by respondent no.1 in a rash and negligent manner? (OPP)
iii)To what amount of compensation, if any, the petitioner is entitled to and from whom? (OPP)
iv) Relief.
7. Smt. Rekha, wife of deceased appeared as PW1 and filed her affidavit Ex.PW1/A stating therein the facts as stated by her in the petition. She relied upon the documents i.e., FIR, site plan, arrest memo, insurance cover note, mechanical inspection Report, DL of driver as Ex.PW1/1 to PW1/6, DL of deceased as Ex.PW1/7, Screen Report of offending vehicle as Ex.PW1/8, Postmortem Report as Ex.PW1/9, Employee Certificate of deceased as Ex.PW1/10, Ration Card as Ex.PW1/11. Claimants also examined PW2 Sh. Dharambir, Compliance Officer and PW3 Sh. Deepak Chandra, Manager from the firm of deceased i.e. M/s. Prasanna Purple Mobility Solutions Pvt. Ltd. PW3 has proved the ESIC Record of deceased as Ex.PW3/A.
8. I have heard Ld. Counsels for parties, perused the entire material carefully in the light of relevant statutory provisions of law and my observations on the issues are as follows : Suit No. 111F/12 Smt. Rekha Vs. Abbas Khan & Ors. Page : 4/14 ISSUE NO. 1 :
Whether petitioners prove that they are legal heirs of the deceased?
9. In order to decide this issue, the testimony of PW1, wife of deceased is relevant. PW1 has exhibited the Ration Card as Ex.PW1/11 in which, names of all claimants are reflected as legal heirs of deceased. Her testimony is further corroborated by the DAR filed by IO wherein the names of all the claimants. The documents on record clearly establish the Claimant no.1 as wife and Claimants no.2 to 5 as children of the deceased. On the other hand, no contra evidence has been brought on record by respondents. In such circumstances, there is no reason to disbelieve the testimony of PW1. Therefore, I hold that claimants no.1 to 5 are the only legal representatives of the deceased. This issue is decided accordingly in favour of the claimants. ISSUE NO.2 :
Whether deceased suffered fatal injuries in a road accident on 01.02.2012 involving vehicle i.e., TSR bearing registration no. DL1RM0359 driven by respondent no.1 in a rash and negligent manner? (OPP)
10.Claimant no.1 Smt. Rekha examined herself and deposed about the Suit No. 111F/12 Smt. Rekha Vs. Abbas Khan & Ors. Page : 5/14 facts in her affidavit. During cross examination, she deposed that on 02.02.2012 at around 7.30 AM, her husband was hit by a TSR bearing registration no. DL1RM0359 driven by respondent no.1 in a high speed and sustained fatal injuries. She deposed that the accident happened because of rash and negligent driving of offending vehicle. I have looked into the criminal case record and chargesheet. The FIR was registered on the statement of eye witness Amish Das. The facts are supported and corroborated by IO of the case who had conducted the investigation and filed chargesheet against respondent no. 1. The factum of accident and the death is not disputed by the Insurance Company. No contra evidence is brought by the driver and owner in support of their defence. In Bimla Devi and Ors. v. Himachal Road Transport Corporation and Ors., (2009) 13 SC 530, the Hon'ble Supreme Court held that in a petition under Section 166 of the Act, the petitioners were merely to establish their case on the touchstone of preponderance of probability and holistic view is to be taken while dealing with the Claim Petition under the Motor Vehicles Act. Para 15 of the report is extracted hereunder :
"15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was to be borne in mind that strict proof of an accident caused by Suit No. 111F/12 Smt. Rekha Vs. Abbas Khan & Ors. Page : 6/14 a particular bus in a particular manner may not be possible to be done by the petitioners. The petitioners were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied."
11.The report in Bimla Devi (Supra) was relied on by the Hon'ble Supreme Court in its latest judgment in Parmeshwari v. Amir Chand (2011) 11 SCC 635 and Kusum Lata v. Satbir, (2011) 3 SCC 646."
12.In a recent judgment of Hon'ble Delhi High Court in United India Insurance Company Ltd. Vs. Deepak Goel & Ors., 2014 (2), T.A.C. 846 (Del.), it was held that in a case, where FIR is lodged, chargesheet is filed and specially in a case where driver after causing the accident had fled away from the spot, then the documents mentioned above are sufficient to establish the fact that the driver of the offending vehicle was negligent in causing the accident particularly when there was no defence available from his side.
13.In the case of National Insurance Company Ltd. v. Pushpa Rana & Ors. : 2009 ACJ 287, the Hon'ble High Court of Delhi has held :
"......... On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had Suit No. 111F/12 Smt. Rekha Vs. Abbas Khan & Ors. Page : 7/14 produced: (i) certified copy of the criminal record of criminal case in FIR No.955 of 2004, pertaining to involvement of the offending vehicle; (ii) criminal record showing completion of investigation of police and issue of chargesheet under Sections 279/304A, Indian Penal Code against the driver; (iii) certified copy of F.I.R., wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of the deceased. These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under the Motor Vehicles 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 the part of the driver".
14.In case Cholamandalam M.S. General Insurance Co. Ltd. v. Kamlesh : 2009 (3) AD (Delhi) 310, an adverse inference was drawn because the driver of the offending vehicle had not appeared in the witness box to corroborate his defence taken in the written statement. It was noted that there was nothing on record to show that the claimants had any enmity with the driver of the offending vehicle so as to falsely implicate him in the case. The issue thus stands decided in favour of claimants holding that the accident happened as a result of negligent driving by respondent no.1 in Suit No. 111F/12 Smt. Rekha Vs. Abbas Khan & Ors. Page : 8/14 which deceased Dhanil Lal had sustained fatal injuries. ISSUE NO.3 :
To what amount of compensation, if any, the petitioners are entitled to and from whom?OPP
15.PW1 Smt. Rekha is the wife of deceased. In her affidavit, PW1 stated that her husband was a driver and employed under Metro Feeder Bus Service. She stated that the deceased was getting a salary of Rs.10,500/ per month. She deposed that the deceased used to spend his entire earnings on the petitioners/his children.
16.As per record, the date of birth of deceased was 01.01.1970. The age of deceased, thus, is taken as 42 years. From the testimony of Compliance Officer Sh. Dharamvir and Sh. Deepak Chandra, examined as PW2 and PW3, it is clear that the deceased was a permanent employee as a driver and was getting a salary of Rs. 10,500/ to Rs.11,500/ p.m. No contra evidence contradicting the testimony of PW2 and PW3 was filed by the insurance company. Thus, his salary is taken as approx. Rs.11,000/ p.m. In a recent judgment in HDFC Ergo General Insurance Co. Ltd. Vs. Lalta Devi & Ors., (Decided on 12.1.2015), it was observed that in view of the observations of Hon'ble Apex Court in Reshma Kumari & Ors. Vs. Madan Mohan & Anr., (2013) 9 SCC 65 and further in Suit No. 111F/12 Smt. Rekha Vs. Abbas Khan & Ors. Page : 9/14 the judgment of Hon'ble Apex Court in Union of India & Ors. Vs. S.K. Kapoor, (2011) 4 SCC 589, the three Judge Bench Decision in Reshma Kumari & Ors. (Supra) was held to be taken as a binding precedent. Therefore, in view of the judgment of Hon'ble High Court of Delhi in HDFC Ergo General Insurance Co. Ltd. Vs. Lalta Devi & Ors., this court is of the view that the petitioners are not entitled to any future prospects.
17.All the claimants would be considered to be the dependents in view of "Sarla Verma & Ors. Vs. DTC & Anr. (2009) ACJ 1298". Thus, 1/4th from income of deceased has to be deducted towards his living expenses. After deduction, the contribution to the family (dependents) comes to Rs.8,250/ [Rs.11,000.00 - Rs.2,750.00 (1/4th)]. In view of judgments rendered in Mohd. Hasnain & Ors. Vs. Jayram Meena & Ors. and in "Cholamandalam M.S. General Insurance Company Vs. Issak Khan & Ors." (Both decided by Hon'ble High Court of Delhi on 24.03.2014 and 26.03.2014 respectively) and of Hon'ble Apex Court in P.S. Somanathan & Ors. Vs. District Insurance Office & Anr. (2011 ACJ 737), while assessing the dependency, the age of deceased is to be taken for selecting the correct multiplier. The multiplier applicable would be Suit No. 111F/12 Smt. Rekha Vs. Abbas Khan & Ors. Page : 10/14
14. Thus, compensation under the head Loss of Dependency would be Rs.13,86,000/ (Rs.8,250.00 X 12 X 14).
18.The claimants are also entitled to a sum of Rs.1,00,000/ towards loss of love and affection, Rs.1,00,000/ towards loss of Consortium, Rs.10,000/ towards loss of Estate and Rs.25,000/ towards funeral expenses.
19.The claimants are entitled for the total amount of compensation towards all the heads, which is as follows : S.No. On Account of Amount (Rs.) 1 Loss of dependency Rs.13,86,000.00 2 Loss of Love and affection Rs. 1,00,000.00 3 Funeral Expenses Rs. 25,000.00 4 Loss of Estate Rs. 10,000.00 5 Loss of consortium Rs. 1,00,000.00 Total = Rs.16,21,000.00 I accordingly award an amount of compensation of Rs. 16,21,000/ in favour of the claimants and against respondents.
LIABILITY
20.Ld. counsel for driver and owner has placed reliance upon the judgment of Hon'ble Apex Court in Mallamma (Dead) through Suit No. 111F/12 Smt. Rekha Vs. Abbas Khan & Ors. Page : 11/14 LRs Vs. National Insurance Co. & Ors. cited in (2014) T.A.C. 369 (SC) to contend that in view of Section 157 (1) of M.V. Act, the benefits of the insurance policy also get transferred to the new owner, after the vehicle is transferred from one person to another. Relying upon the judgment, I hold that the insurance policy shall not lapse even if the intimation as required under Section 103 of M.V. Act is not given to the insurer. Since the Insurance Company has admitted the policy as on the date of accident, therefore, it is the respondent no. 3/Insurance Company which is liable to pay the compensation amount. Since, no violation u/s 149 (2) (a) of M.V. Act could be established by respondent no.3, in such circumstances, I am of the considered view that it is the Insurance Company, which shall be responsible for the payment of compensation.
A W A R D
21.Resultantly, the petition stands allowed. The respondent No. 3/Insurance company is directed to pay the compensation of Rs. 16,21,000/ within one month to all the claimants, the amount be deposited with UCO Bank, Karkardooma Courts Complex, Delhi. Following the judgment of Smt. Bishekha Devi & Anr. Vs. Mohd. Afsar & Ors. MAC. APP. 1087/2012 passed by Hon'ble Delhi Suit No. 111F/12 Smt. Rekha Vs. Abbas Khan & Ors. Page : 12/14 High Court, the respondent No. 3 shall also pay interest @ 9% p.a. on the total compensation amount from the date of petition till realization to the petitioners.
22.Out of total award amount, let an amount of Rs.71,000/ in favour of the claimant no.1 (wife of deceased) be released forthwith and remaining amount of Rs.3,50,000/ shall be deposited in his name in the form of two FDRs of equal amount for a period of five years with release of periodical monthly interest to her.
23.Entire remaining amount shall be kept in the form of four FDRs of equal amount in the names of claimants no.2 to 5 (children of deceased), till they attain the age of majority.
24.The interest on the aforesaid Fixed Deposits shall be paid monthly by Automatic Credit of Interest in the Savings Account of claimants.
25.Withdrawal from the said Account shall be permitted to claimants after due verification and Bank shall issue Photo Identity Card to petitioners to facilitate Identity.
26.The original Fixed Deposit Receipts shall be retained by the Bank in safe custody. However, original Passbook shall be given to the claimants / beneficiaries with photocopy of FDRs. On expiry of period of each FDR, the Bank shall automatically credit the Suit No. 111F/12 Smt. Rekha Vs. Abbas Khan & Ors. Page : 13/14 maturity amount in Savings Account of beneficiaries.
27.No loan, advance, withdrawal shall be allowed on the said FDRs without permission of this court.
28.Half yearly statement of account be filed by the Bank in this court.
29.On request of claimants, Bank shall transfer the Savings Account to any other branch.
30.The award amount alongwith interest be deposited by respondent no.3/Insurance Company, within 30 days in the court. In case, even after passage of 90 days from today, the Insurance Company fails to deposit this compensation with proportionate interest, in that event, in the light of the judgment of the Hon'ble High Court of Delhi in the case of New India Assurance Company Limited Vs. Kashmiri Lal, 2007 ACJ 688, this compensation shall be recovered by attaching the bank account of the Insurance Company with a cost of Rs.10,000/.
File be consigned to record room.
Announced in the open Court Dated : 4th February, 2015 (MS. RAVINDER BEDI) PRESIDING OFFICER MACT (EAST) KARKARDOOMA COURTS, DELHI.
Suit No. 111F/12 Smt. Rekha Vs. Abbas Khan & Ors. Page : 14/14 MACT NO.111F/12 04.02.2015 Present : Ld. Counsels for parties.
Vide separate order announced in the open Court today, the DAR Claim stands allowed. The respondent No.3/Insurance company is directed to pay the compensation of Rs.16,21,000/ within one month to all the claimants, the amount be deposited with UCO Bank, Karkardooma Courts Complex, Delhi. Following the judgment of Smt. Bishekha Devi & Anr. Vs. Mohd. Afsar & Ors. MAC. APP. 1087/2012 passed by Hon'ble Delhi High Court, the respondent No. 3 shall also pay interest @ 9% p.a. on the total compensation amount from the date of petition till realization to the petitioners.
Out of total award amount, let an amount of Rs.71,000/ in favour of the claimant no.1 (wife of deceased) be released forthwith and remaining amount of Rs.3,50,000/ shall be deposited in his name in the form of two FDRs of equal amount for a period of five years with release of periodical monthly interest to her.
Entire remaining amount shall be kept in the form of four FDRs of equal amount in the names of claimants no.2 to 5 (children of deceased), till they attain the age of majority.
The interest on the aforesaid Fixed Deposits shall be paid monthly by Automatic Credit of Interest in the Savings Account of claimants.
Withdrawal from the said Account shall be permitted to claimants after due verification and Bank shall issue Photo Identity Card to petitioners to facilitate Identity.
The original Fixed Deposit Receipts shall be retained by the Bank in safe custody. However, original Passbook shall be given to the claimants / beneficiaries with photocopy of FDRs. On expiry of Suit No. 111F/12 Smt. Rekha Vs. Abbas Khan & Ors. Page : 15/14 period of each FDR, the Bank shall automatically credit the maturity amount in Savings Account of beneficiaries.
No loan, advance, withdrawal shall be allowed on the said FDRs without permission of this court.
Half yearly statement of account be filed by the Bank in this court.
On request of claimants, Bank shall transfer the Savings Account to any other branch.
The award amount alongwith interest be deposited by respondent no.3/Insurance Company, within 30 days in the court. In case, even after passage of 90 days from today, the Insurance Company fails to deposit this compensation with proportionate interest, in that event, in the light of the judgment of the Hon'ble High Court of Delhi in the case of New India Assurance Company Limited Vs. Kashmiri Lal, 2007 ACJ 688, this compensation shall be recovered by attaching the bank account of the Insurance Company with a cost of Rs.10,000/.
Be put up for compliance on 16.03.2015.
(MS. RAVINDER BEDI) PO MACT(EAST)KKD./DELHI/04.02.2015 Suit No. 111F/12 Smt. Rekha Vs. Abbas Khan & Ors. Page : 16/14