Delhi District Court
Smt. Phoolwati Devi vs Bhagwan Das Auto Finance Ltd on 24 November, 2012
IN THE COURT OF SH. ARUN BHARDWAJ
PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS TRIBUNALII,
DWARKA COURTS: NEW DELHI
MACT NO. 99/12/09
IN THE MATTER OF :
1. Smt. Phoolwati Devi
W/o Late Shri Omprakash Sheokand
2. Shri Sudhir Sheokand
S/o Late Shri Omprakash Sheokand
Both residents of:
Flat No. F101, RZF1/318, Gali No. 2
Mahavir Enclave, New Delhi
3. Ms. Neelam
S/o Late Shri Omprakash Sheokand
W/o Shri Narender Punia
C/o Flat No. F101, RZF1/318
Gali No. 2, Mahavir Enclave
New Delhi.
4. Ms. Sarita
D/o Late Shri Omprakash Sheokand
W/o Shri Rishi Sangwan
C/o Flat No. F101, RZF1/318
Gali No. 2, Mahavir Enclave
New Delhi.
... Petitioners
Versus
1. Bhagwan Das Auto Finance Ltd.
3/1, Babli Mondal Road, Tollygunge
Kolkata700034.
Also at:
MACT No. 99/12/09 Smt. Phoolwati Devi & Ors. Vs. Bhagwan Das Auto Fin. Ltd. & Ors. Page 1 of 46
194, S.P. Mukharjee Road
Kolkatta 700026
(Owner of Tata Trailer No. HR38J6245)
2. Shri Islamuddin
S/o Shri Sheikh Munnu
R/o Hamid Nagar, Fatehpur Sikri Road
Sahganj, Agra.
(Driver of Tata Trailer No. HR38J6245)
3. The Oriental Insurance Co. Ltd. (Insurer of Tata Trailer)
Divisional Office No. 2, 4, Lyonge Range
Kolkatta700 001
Also at :
Registered Office: A25/27, Asaf Ali Road,
New Delhi.
4. Kanika Overseas Inc.
(Owner of Honda Civic bearing No. DL 4C AH 3913)
A/2425, Jawahar Park, Khanpur
New Delhi - 110 062.
5. ICICI Lombard General Insurance Co. Ltd.
Zenith House, Keshavrao Khade Marg,
Mahalaxmi, Mumbai - 34
(Insurer of DL 4C AH 3913)
Policy No. 3001/52623328/01/B00
6. Shri Sanjay Kumar
S/o Shri Arun Prasad
(Address to be furnished by owner of Honda Civic DL 4C AH
3913)
7. M/s. Sainik Finance & Industries Ltd. (Aryan Group)
7th Floor, Corporate Tower, Ambience
Gurgaon.
(Owner of Wagon R No. DL 6CH 8612)
MACT No. 99/12/09 Smt. Phoolwati Devi & Ors. Vs. Bhagwan Das Auto Fin. Ltd. & Ors. Page 2 of 46
8. M/s. Bajaj Allianz General Insurance Co. Ltd.
Shiv Mohan Bhawan, Vidhan Sabha Marg,
Pandri, Raipur, Chhatisgarh,
(Insurer of Wagon R No. DL 6CH 8612)
Covernote No. PC 06612195994
... Respondents
FILED ON : 17.05.2009
RESERVED ON : 08.11.2012
DECIDED ON : 24.11.2012
MACT NO. 103/12/09
IN THE MATTER OF :
1. Smt. Darshana Devi (Aged 44 yrs.)
W/o late Sh. Suresh Saharan
2. Sh. Harpal Saharan (Aged 19 yrs.)
S/o late Sh. Suresh Saharan
3. Master Ajay Pal Saharan (Aged 17 yrs.) S/o late Sh. Suresh Saharan All residents of:
Flat No. F101, RZF1/318, Gali No. 2Mahavir Enclave, New Delhi (Petitioner No. 3 a minor through Petitioner No.1 who is mother and natural guardian)
4. Ms. Jyoti (Aged 23 yrs.) D/o late Sh. Suresh Saharan W/o Sh. Narender C/o Flat No. F101, RZF1/318 Gali No. 2, Mahavir Enclave New Delhi.
... Petitioners MACT No. 99/12/09 Smt. Phoolwati Devi & Ors. Vs. Bhagwan Das Auto Fin. Ltd. & Ors. Page 3 of 46 Versus
1. Bhagwan Das Auto Finance Ltd.
3/1, Babli Mondal Road, Tollygunge Kolkata700034.
Also at:
194, S.P. Mukharjee Road Kolkatta 700026 (Owner of Tata Trailer No. HR38J6245)
2. Shri Islamuddin S/o Shri Sheikh Munnu R/o Hamid Nagar, Fatehpur Sikri Road Sahganj, Agra.
(Driver of Tata Trailer No. HR38J6245)
3. The Oriental Insurance Co. Ltd. (Insurer of Tata Trailer) Divisional Office No. 2, 4, Lyonge Range Kolkatta700001 Also at :
Registered Office: A25/27, Asaf Ali Road, New Delhi.
4. Kanika Overseas Inc. (Owner of Honda Civic bearing No. DL 4C AH 3913) A/2425, Jawahar Park, Khanpur New Delhi - 110 062.
5. ICICI Lombard General Insurance Co. Ltd. Zenith House, Keshavrao Khade Marg, Mahalaxmi, Mumbai - 34 (Insurer of DL 4C AH 3913) Policy No. 3001/52623328/01/B00
6. Shri Sanjay Kumar S/o Shri Arun Prasad (Address to be furnished by owner of Honda Civic DL 4C AH 3913) MACT No. 99/12/09 Smt. Phoolwati Devi & Ors. Vs. Bhagwan Das Auto Fin. Ltd. & Ors. Page 4 of 46
7. M/s. Sainik Finance & Industries Ltd. (Aryan Group) 7th Floor, Corporate Tower, Ambience Gurgaon.
(Owner of Wagon R No. DL 6CH 8612)
9. M/s. Bajaj Allianz General Insurance Co. Ltd. Shiv Mohan Bhawan, Vidhan Sabha Marg, Pandri, Raipur, Chhatisgarh, (Insurer of Wagon R No. DL 6CH 8612) Covernote No. PC 06612195994 FILED ON : 17.05.2009 RESERVED ON : 08.11.2012 DECIDED ON : 24.11.2012 MACT NO. 105/12/09 IN THE MATTER OF :
1. Smt. Murti Devi (Aged 44 years) W/o Late Shri Rajiv Kumar
2. Shri Vineet Kadyan S/o Late Shri Rajiv Kumar
3. Diksha Kadyan D/o Late Shri Rajiv Kumar
4. Smt. Phoolan Devi M/o Late Shri Rajiv Kumar All are resident of :Flat No. F101, RZF1/318, Gali No. 2
Mahavir Enclave, New Delhi.
... Petitioners Versus MACT No. 99/12/09 Smt. Phoolwati Devi & Ors. Vs. Bhagwan Das Auto Fin. Ltd. & Ors. Page 5 of 46
1. Bhagwan Das Auto Finance Ltd.
3/1, Babli Mondal Road, Tollygunge Kolkata700034.
Also at:
194, S.P. Mukharjee Road Kolkatta 700026 (Owner of Tata Trailer No. HR38J6245)
2. Shri Islamuddin S/o Shri Sheikh Munnu R/o Hamid Nagar, Fatehpur Sikri Road Sahganj, Agra.
Driver of Tata Trailer No. HR38J6245
3. The Oriental Insurance Co. Ltd. (Insurer of Tata Trailer) Divisional Office No. 2, 4, Lyonge Range Kolkatta700001 Also at :
Registered Office: A25/27, Asaf Ali Road, New Delhi.
4. Kanika Overseas Inc. (Owner of Honda Civic bearing No. DL 4C AH 3913) A/2425, Jawahar Park, Khanpur New Delhi - 110 062.
5. ICICI Lombard General Insurance Co. Ltd. Zenith House, Keshavrao Khade Marg, Mahalaxmi, Mumbai - 34 (Insurer of DL 4C AH 3913) Policy No. 3001/52623328/01/B00
6. Shri Sanjay Kumar S/o Shri Arun Prasad (Address to be furnished by owner of Honda Civic DL 4C AH 3913) MACT No. 99/12/09 Smt. Phoolwati Devi & Ors. Vs. Bhagwan Das Auto Fin. Ltd. & Ors. Page 6 of 46
7. M/s. Sainik Finance & Industries Ltd. (Aryan Group) 7th Floor, Corporate Tower, Ambience Gurgaon.
(Owner of Wagon R No. DL 6CH 8612)
8. M/s. Bajaj Allianz General Insurance Co. Ltd. Shiv Mohan Bhawan, Vidhan Sabha Marg, Pandri, Raipur, Chhatisgarh, (Insurer of Wagon R No. DL 6CH 8612) Covernote No. PC 06612195994 FILED ON : 05.06.2009 RESERVED ON : 08.11.2012 DECIDED ON : 24.11.2012 : J U D G M E N T :
1. These three claim petitions are filed under Section 166 and 140 of the Motor Vehicles Act, 1988 for grant of compensation.
2. All the three claim petitions have arisen out of a single accident resulting in three fatal injuries for which these three sets of petitioners have filed three claim petitions for compensation.
3. As all the respondents are common, learned Predecessor of this Court clubbed all the three matters and directed that the case of Smt. Phoolwati shall be treated as the leading case.
4. In this case of Smt. Phoolwati Devi & Ors., which is filed by Widow of the deceased late Sh. Om Prakash Sheokand, son of the deceased and married daughters of the MACT No. 99/12/09 Smt. Phoolwati Devi & Ors. Vs. Bhagwan Das Auto Fin. Ltd. & Ors. Page 7 of 46 deceased, it is stated that Sh. Om Prakash Sheokand was 59 years of age at the time of accident and he was a Director in M/s. Chattisgarh Coal Transport Pvt. Ltd., Sirki Camp, C/o SECL Dipka Expn. Project, Dipka area, District Cobra, Chattisgarh and was earning Rs. 28,501/ per month.
5. It is stated that on 14.11.08, at 8.30 a.m., the said deceased was going to Bilaspur in a WagonR Car bearing No. DL6CH8612. His brotherinlaw Sh. Suresh Saharan and one other person were also traveling in the said car which was being driven by the deceased on the left side of the road and they were proceeding towards Mathura at a moderate speed.
6. It is stated that at about 8.30 a.m., when they reached near Daga Plywood Factory, Village Kokhan, Kosi Kalan, Mathura, suddenly a vehicle Tata Trailer, bearing No. HR38J6245, moving from Mathura side to Delhi, came on the wrong side in front of WagonR Car at a very high speed, in a negligent and careless manner and hit the WagonR Car driven by the deceased.
7. It is stated that the deceased tried to control the above said vehicle by applying brakes but at the same time a Honda Civic Car bearing No. DL4CAH3913, coming from backside, also hit the above said WagonR Car and due to this forceful impact, the WagonR Car got sandwiched between Tata Trailer and Honda Civic Car resulting in immediate death of Sh. Om Prakash Sheokand and other two persons who were traveling with him in the said WagonR Car.
8. It is stated that the accident took place due to rash MACT No. 99/12/09 Smt. Phoolwati Devi & Ors. Vs. Bhagwan Das Auto Fin. Ltd. & Ors. Page 8 of 46 and negligent driving of Respondent No. 2 and 6 who are drivers of Trailer HR38J6245 and Honda Civic Car bearing No. DL4CAH3913 respectively.
9. It is stated that FIR No. 866/08 under Section 279/304A of IPC is registered at P.S. Kosi Kalan, Mathura with regard to the accident in question.
10. It is stated that the deceased had retired as Hony. Captain from Indian Army and was getting a pension of Rs. 11,501/ per month from Defence Services. He was also working as a Director in a company drawing a salary of Rs. 12,000/ per month from Chhatisgarh Coal Transport Ltd. and he was also getting Rs. 5,000/ per month as incentive.
11. It is also stated that claimants have incurred a sum of Rs. 60,000/ towards funeral expenses of the deceased and a sum of Rs. 30,000/ was spent on postmortem and carrying dead body to the place of cremation.
12. In these circumstances, petitioners have claimed a compensation of Rs. 1 Crore with interest @ 18% p.a. from the date of accident till its realisation in favour of petitioners.
13. In the case of Darshana Devi & Ors., petitioners are his widow, sons and married daughters. One of the sons, at the time of filing of claim petition, was a minor.
14. In this claim petition, it is stated that Sh. Suresh Saharan was 44 years of age at the time of accident. He was working as a Supervisor with M/s. Mahanadi Chattisgarh Coal Transport Pvt. Ltd., Dipka, Gevra Project, Chattisgarh and was earning Rs. 20,000/ per month.
MACT No. 99/12/09 Smt. Phoolwati Devi & Ors. Vs. Bhagwan Das Auto Fin. Ltd. & Ors. Page 9 of 4615. It is stated that claimants have incurred a sum of Rs. 60,000/ towards funeral expenses of the deceased and a sum of Rs. 30,000/ was spent on postmortem and carrying dead body to the place of cremation.
16. Rest of the averments with regard to sequence of events leading to the accident are same as are already noted in the case of Smt. Phoolwati Devi in earlier paragraphs.
17. These petitioners have claimed a compensation of Rs. 70 Lacs with interest @ 18% p.a. from the date of accident till its realisation in favour of petitioners.
18. So far as the case of Smt. Murti Devi & Ors. is concerned, petitioners are the widow, son, daughter and the mother of the deceased.
19. It is stated in this claim petition that the age of Sh. Rajeev Kumar at the time of accident was 48 years. He was also working with M/s. Chattisgarh Coal Transport Pvt. Ltd., Gevra Project, Dipka, District Cobra, Chattisgarh and was earning Rs. 30,000/ per month.
20. It is stated that the deceased was an income tax payee and gross tax payable on his income was Rs. 19,374/. Rest of the averments regarding sequence of events leading to the accident are same as are stated in the claim petition of Smt. Phoolwati Devi.
21. These petitioners have claimed a compensation of Rs. 80 Lacs with interest @ 18% p.a. from the date of accident till its realisation in favour of petitioners.
22. On 28.10.10, right of Respondent No. 1 to file MACT No. 99/12/09 Smt. Phoolwati Devi & Ors. Vs. Bhagwan Das Auto Fin. Ltd. & Ors. Page 10 of 46 written statement was closed.
23. Respondent No. 2 is the driver of Trailer No. HR38J6245. He was served by way of publication and was proceeded ex parte vide orders dated 28.04.2011.
24. Respondent No. 3, Oriental Insurance Company Ltd., filed its written statement and stated that since the accident involved a number of vehicles and the accident was caused by composite negligence of their drivers, the answering respondent is not liable to that extent.
25. It is stated that in case the driver of the alleged offending vehicle was not having a valid and effective Driving License at the time of accident, the answering respondent shall not be liable to pay any compensation.
26. It is also stated that in case insured did not have a valid permit of the alleged offending vehicle at the time of accident, the answering respondent shall not be liable to pay any compensation.
27. It is also stated that the answering respondent is not liable to any compensation as per statutory defences under Section 149 (2) of M.V. Act in case of a breach of a specified condition of the policy, and / or nondisclosure of material facts by the insured.
28. It is also stated that the alleged offending vehicle No. HR38J6245 (earlier Registration No. NL 01D 4673) was insured in the name of Shri Bhagwan Das Auto Finance Ltd. with the answering respondent vide its Policy No. 311200/2008/1773 from 03.02.2008 to 02.02.2009.
MACT No. 99/12/09 Smt. Phoolwati Devi & Ors. Vs. Bhagwan Das Auto Fin. Ltd. & Ors. Page 11 of 4629. Respondent No. 3 has denied that petitioners are entitled to recover compensation from all the respondents jointly and severally and has stated that since the accident involved a number of vehicles and was caused by composite negligence of their drivers, the answering respondent is not liable to that extent.
30. Rest of the contents of claim petition were denied and it was prayed that claim petition be dismissed.
31. Respondent No. 4 and 6 who are owner and driver of Honda Civic Car bearing No. DL4CAH3913 have also filed a common written statement stating that the accident did not take place due to rash and negligent driving of Respondent No. 6 and therefore they are not liable to pay any compensation to the petitioners.
32. It is stated that their vehicle is insured with Respondent No. 5 and in case there is any liability of the answering respondents, then Respondent No. 5 will be liable to pay the compensation to the petitioners.
33. Respondent No. 4 and 6 have denied sequence of events leading to the accident as stated by petitioners in their claim petitions and they have stated that on 14.11.2008, Shri Ashok Aggarwal (partner of Respondent No. 4) along with his family was going to Vrindavan from Delhi in his vehicle Honda Civic Car bearing No. DL4CAH3913 which was being driven by Respondent No. 6 at a moderate speed.
34. It is stated that the wife, son, daughter and grandson of partner of Respondent No. 4 were also traveling MACT No. 99/12/09 Smt. Phoolwati Devi & Ors. Vs. Bhagwan Das Auto Fin. Ltd. & Ors. Page 12 of 46 with him in the car which was being driven by Respondent No. 6.
35. It is stated that at about 8:30 a.m., when they reached near Daga Plywood Factory, Village Kokhan, Kosi Kalan, Mathura, a vehicle Tata Trailer bearing No. HR38J6245 running from Mathura to Delhi veered towards right side from the cut of the divider and at a very high speed came towards the vehicles coming from Delhi to Mathura and hit the vehicles of the answering respondent from front side.
36. It is also stated that due to this strong collision, the vehicle of Respondent No. 4 turned back towards Delhi and at that time the Tata Trailer also hit another Car WagonR bearing No. DL 6CH 8612 which was also coming from Delhi and was going towards Mathura.
37. It is stated that with the impact of said collision, the WagonR Car was dragged to a nearby pit and got sandwiched between the pit and the front side of the said Tata Trailer.
38. It is stated that Shri Ashok Aggarwal and his family members heard a huge cry of the occupants of said WagonR and thereafter they became unconscious as they also got serious injuries.
39. It is stated that the occupants of Honda Civic Car were taken to BPL Hospital, Kosi Kalan for their treatment and they were referred to Max Hospital, Saket, as they were seriously injured and their vehicle was badly damaged beyond recognition.
MACT No. 99/12/09 Smt. Phoolwati Devi & Ors. Vs. Bhagwan Das Auto Fin. Ltd. & Ors. Page 13 of 4640. These respondents have also mentioned in their written statements nature of injuries suffered by the occupants of Honda Civic Car and expenses incurred in their treatment but that is not relevant for the purposes of deciding the present claim petitions.
41. These respondents have stated that the accident in question was caused due to negligence of Respondent No. 2 who was driving the Tata Trailer.
42. Respondent No. 4 and 6 have denied that their vehicle Honda Civic bearing No. DL4CAH3913 is also an offending vehicle. They have stated that the accident in question was caused only due to negligence of Respondent No. 2 who was driving the Tata Trailer.
43. Therefore, they have stated that they are not liable to pay any compensation to the petitioners.
44. Respondent No. 5 insurer of Honda Civic Car has also filed its written statement stating that the petition does not disclose any cause of action against answering respondent and petition is liable to be dismissed.
45. It is also stated that the insurance company is taking all the pleas available under Section 149 of M.V. Act and petition be dismissed in case, it is found that there is any contravention of provisions of Section 149 of the M.V. Act.
46. It is also stated that the answering respondent denies all liabilities in this case as an insurer since the insured vehicle bearing No. DL4CAH3913 was being driven by a person without permission or authority of the insured and MACT No. 99/12/09 Smt. Phoolwati Devi & Ors. Vs. Bhagwan Das Auto Fin. Ltd. & Ors. Page 14 of 46 the said vehicle was used contrary to the terms of insurance policy as its driver was not holding a proper and valid driving license.
47. It is stated that the owner of the vehicle with full knowledge that its driver was not having a driving license, willfully breached the terms and conditions of the policy. Therefore, it was prayed that the claim petition is liable to be dismissed.
48. However, it was admitted that vehicle bearing No. DL4CAH3913 is insured in the name of Kanika Overseas Inc. vide Policy No. 3001/52623328/01/B00 valid from 06.10.2008 to 05.10.2009.
49. Rest of the contents of claim petition were denied and it was also denied that the answering insurance company is liable to pay any compensation to the petitioners.
50. Respondent No. 7, Owner of the WagonR Car bearing No. DL 6CH 8612, which was being driven by the deceased at the time of accident also filed its written statement and stated that this claim petition is without any cause of action and is liable to be rejected under Order VII Rule 11 of CPC.
51. It is also stated that Respondent No. 7 had financed the vehicle and after paying instalments, Mrs. Santosh of Meerut had become real owner of the vehicle and total amount in respect of WagonR Car was adjusted in the books of Sainik Finance Industries Ltd. and Form35 was also delivered to Ms. Santosh.
MACT No. 99/12/09 Smt. Phoolwati Devi & Ors. Vs. Bhagwan Das Auto Fin. Ltd. & Ors. Page 15 of 4652. Rest of the contents of claim petition were denied and it was prayed that the claim petition be dismissed.
53. Insurer of WagonR Car also filed its written statement and stated that the accident has taken place due to sole negligence of driver of the Truck and Honda Civic Car. The deceased driver of WagonR Car was driving his vehicle with utmost care and caution. Thus there being no negligence of the deceased in the accident, answering respondent is not liable to pay any compensation whatsoever and owner, driver and insurer of the offending vehicles (Truck and Honda Civic Car) be made liable to compensate the claim.
54. It is also stated that the deceased himself had stepped into the shoes of owner of the said vehicle and the insured under the policy cannot be said to be the third party within the meaning of the Motor Vehicles Act, 1988.
55. Rest of the contents of claim petition were denied and it was prayed that claim petition be dismissed under relevant provisions of Motor Vehicles Act against answering respondent.
56. From the pleadings of parties, following consolidated issues were framed:
(i) Whether Shri Omprakash Sheokand husband of petitioner Smt. Phoolwati, Shri Suresh Saharan, husband of petitioner Smt. Darshan Devi and Shri Rajiv Kumar, husband of petitioner Smt. Murti Devi, had sustained fatal injuries on their persons in an accident which took place on 14.11.2008 due to MACT No. 99/12/09 Smt. Phoolwati Devi & Ors. Vs. Bhagwan Das Auto Fin. Ltd. & Ors. Page 16 of 46 negligent driving of vehicle bearing registration no. HR38J6245 being driven in a negligent manner by Islamuddin, owned by M/s. Bhagwan Das Auto Finance Ltd. and insured with respondent no. 3. ........OPP
(ii) In case, issue No. 1 is decided in favour of petitioners, to what amount of compensation they are entitled to and from whom? ..... OPP
(iii) Relief.
57. Smt. Phoolwati was the first witness to enter in the witness box as PW1 and stated similar facts in her evidence by way of affidavit as were already stated by her in her claim petition. PW1 exhibited the following documents: i. Ex.P1W1/1: Certified copy of chargesheet, FIR, statements under Section 161 of Cr. P.C. and site plan.
ii. Ex.P1W1/2: Postmortem report of the deceased Late Shri Om Prakash Sheokand.
iii. Ex.P1W1/3 :Incometax return for the assessment year, 200607 with statement of total income.
iv. Ex.P1W1/4 : Incometax return for the assessment year, 200708 with statement of total income.
v. Ex.P1W1/5 : Certificate of Chattisgarh Coal Transport Pvt. Ltd. certifying that the deceased was drawing salary of Rs. 11,931/ per month from April, 2008 to October, 2008.
vi. Ex. P1W1/6 : Order of Chief CDA (Pensions) Allahabad, in the name of Late Shri Om Prakash Sheokand.
MACT No. 99/12/09 Smt. Phoolwati Devi & Ors. Vs. Bhagwan Das Auto Fin. Ltd. & Ors. Page 17 of 46vii.Ex.P1W1/7 :Passbook of State Bank of Patiala in the name of Late Shri Om Prakash Sheokand.
viii.Ex. P1W1/8 : Nakal jamabandi (Padat Patwar).
58. In cross examination, PW1 stated that she is not an eye witness to the accident; she is receiving family pension; she has not placed on record any appointment letter of her husband but has placed on record his salary slip; she denied a suggestion that Ex.PW1/5 is a forged document or her husband was not working anywhere and was not earning any amount.
59. Second witness examined by the petitioners was one Sh. Prasant Pareda, Accountant of M/s. Chhattisgarh Coal Transport Pvt. Ltd. He proved the following documents: i. Ex.PW2/A : Authority letter in his favour to appear and depose in this Court.
ii. Ex.PW2/B : Monthly attendance register for the month of April, 2008 maintained by Chhattisgarh Coal Transport (P) Ltd.
iii. Ex. PW2/C :Register of wages given to employees of Chhattisgarh Coal Transport (P) Ltd.
60. In cross examination, PW2 deposed that he does not remember the date or month when Sh. Om Prakash had joined this firm. He deposed that he is not aware of the terms and conditions of service of the deceased Late Shri Om Prakash Sheokand as he had not brought the appointment letter of the deceased and he is not aware whether any appointment letter was issued to the deceased or not. He MACT No. 99/12/09 Smt. Phoolwati Devi & Ors. Vs. Bhagwan Das Auto Fin. Ltd. & Ors. Page 18 of 46 deposed that since he is from the accounts department of the company he is not aware of the works undertaken by the company and the nature and scope of duties of Sh. Om Prakash. He denied a suggestion that the documents exhibited by him were forged documents.
61. Third witness examined on behalf of petitioners was one Sh. Santosh Mishra, Accountant of M/s. Mahanadi Coal Transport (P) Ltd. He was examined to prove income of Late Sh. Suresh Saharan at the time of accident. He stated that Late Sh. Suresh Saharan was working in the company as a Supervisor. He proved the following documents: i. Ex.Ex.PW3/A : Authorization letter in his favour.
ii. Ex.PW3/B : Attendance register of M/s. Mahanadi Coal Transport (P) Ltd. for the months of April December, 2008.
62. In cross examination, he stated that Late Sh. Suresh Saharan was working in that company before PW3 joined the same in the year 2007 and therefore he does not remember the date or month when Late Sh. Suresh Saharan had joined this firm. He did not produce personal file regarding appointment or service record of Late Sh. Suresh Saharan. He deposed that ESI benefits are not extended in their firm and also stated that he does not know whether his firm had given any employment on compassionate basis to any family members of the deceased or not.
63. Smt. Darshana Devi W/o Late Sh. Suresh Saharan entered in the witness box as PW4. She also stated similar MACT No. 99/12/09 Smt. Phoolwati Devi & Ors. Vs. Bhagwan Das Auto Fin. Ltd. & Ors. Page 19 of 46 facts in her evidence by way of affidavit as were stated by her in her claim petition. She proved following documents in support of her case: i. Ex.PW4/1 : Postmortem report of her husband. ii. Ex.PW4/2 : Salary certificate of Late Sh. Suresh Saharan given by M/s. Mahanadi Coal Transport stating that the deceased was drawing salary of Rs. 19,500/ per month.
iii. Ex.PW4/3: Nakal jamabandi (padat patwar).
iv. Ex.PW4/5 : Educational qualification Certificates of Shri Harpal Saharan and Master Ajay Saharan.
64. In crossexamination, she deposed that she is not an eye witness to the accident and the date of birth of her husband was 05.01.1966. She denied a suggestion that the correct age of her husband is mentioned in the postmortem report. She stated that she does not know the mode of payment of salary to her husband by his employer i.e. Mahanadi Coal Transport and she is not having any appointment letter. She denied a suggestion that the salary certificate Ex.PW4/2 is forged and fabricated. She stated that the agricultural land which was in the name of her husband is now mutated in the name of legal heirs of her husband. She stated that she is not getting as much agricultural income from the agricultural land as she was getting during the life time of her husband. She deposed that land in question was cultivated by labourers during the life time of her husband. She clarified that in Ex.PW4/3 name of recorded owner is shown as Darshana widow of Late Sh. Raj Singh who was her MACT No. 99/12/09 Smt. Phoolwati Devi & Ors. Vs. Bhagwan Das Auto Fin. Ltd. & Ors. Page 20 of 46 first husband. She stated that land holding of her first husband was mutated in her name as well as in the name of her daughter from her first marriage. She denied a suggestion that she has suffered no loss of agricultural income on the death of her husband. She did not know in whose name Dairy Firm at Gevra, Chattisgarh was from where her husband was getting income. She further stated that her husband used to work at Chattisgarh most of the time and agricultural land in the name of her husband was cultivated by his other brothers on his behalf.
65. Suggestions contrary to her case were denied by her.
66. Smt. Murti Devi entered in the witness box as PW5. She stated similar facts in her evidence by way of her affidavit as were already stated by her in her claim petition. She proved following documents in support of her case: i. Ex.PW5/1 : Postmortem report of her husband Sh. Rajiv Kumar.
ii. Ex.PW5/2 : FIR.
iii. Ex. PW5/3 : Statement of Sh. Mukesh Kumar recorded by the police.
iv. Ex.PW5/4 : Driving licence of Sh. Rajiv Kumar.
v. Ex.PW5/5 : ITR for the assessment year 200809.
vi. Ex.PW5/6 : ITR for the assessment year 200708.
vii.Ex.PW5/7 : Ration Card.
MACT No. 99/12/09 Smt. Phoolwati Devi & Ors. Vs. Bhagwan Das Auto Fin. Ltd. & Ors. Page 21 of 4667. In crossexamination, she deposed that she is not an eye witness to the accident and she has no personal knowledge which vehicle was being driven negligently resulting in accident. She deposed that her husband was doing business of transport and there were some vehicles in his name. He was working in a transport company also. She denied a suggestion that she continues to get income from agricultural land. She stated that her husband used to come home from time to time to attend the agricultural land also. She denied a suggestion that there is no financial loss to the family after the death of her husband.
68. Petitioners examined partner of Respondent No. 4 who was traveling in the Honda Civic Car at the time of the accident as PW6.
69. This witness gave a different version of the accident. He stated that TATA Trailer bearing Registration No. HR38J6245 running from Mathura to Delhi had veered towards right side from the cut of the divider at a very high speed and came from wrong side towards vehicles coming from Delhi and going to Mathura and hit the vehicle of the deponent from front side and simultaneously TATA Trailer also hit another Car WagonR No. DL6CH8612 which was coming from Delhi and was going towards Mathura. He deposed that this Car was coming from back side of the Honda Civic Car.
70. In crossexamination, he stated that the Driver who was driving his car was on his regular employment and MACT No. 99/12/09 Smt. Phoolwati Devi & Ors. Vs. Bhagwan Das Auto Fin. Ltd. & Ors. Page 22 of 46 left services after one year of the accident.
71. He stated that the speed of his car was around 5060 Km. per hour. He deposed that the offending vehicle had come in front of their car abruptly. The driver of Honda Civic Car had tried his best to slow down the vehicle. He denied a suggestion that the accident had taken place due to negligence of his driver. He stated that he had become unconscious after the accident and therefore, his statement was not recorded by the police at the place of the accident but was recoded later on at his residence.
72. On behalf of respondents only Respondent No. 3 examined two witnesses.
73. First witness examined by respondent no. 3 was Sh. Avinash Kumar, Deputy Manager of the Oriental Insurance Company Limited who proved the following documents: i. Ex. R3W1/1 : Certified copies of insurance policy.
ii. Ex. R3W1/2 : Notice under Order XII Rule 8 of CPC sent to Respondent No. 1 to produce original policy, Registration Certificate of vehicle No. NL01D4673, Driving License of driver and permit of the offending vehicle.
iii. Ex. R3W1/3 : Postal receipt as per which this notice was sent to Respondent No. 1.
iv. Ex. R3W1/4 : UPC as per which this notice was sent to Respondent No. 1.
74. The witness was not crossexamined by anyone.
MACT No. 99/12/09 Smt. Phoolwati Devi & Ors. Vs. Bhagwan Das Auto Fin. Ltd. & Ors. Page 23 of 4675. Counsel for Respondent No. 3 tendered in evidence following documents: i. Ex.R3W2/1 : Notice under Order XII Rule 8 of CPC addressed to Respondent No. 2 to produce his original Driving License.
ii. Ex.R3W2/2 : Original postal receipt as per which notice was sent to Respondent No. 2.
76. No other witness was examined on behalf of any other party.
77. Arguments were addressed by Shri Kumar Alok, learned counsel for the petitioners, Ms. Lalita Bajaj, learned counsel for Respondent No. 3, Shri Mehtab Singh, learned counsel for Respondent No. 5 and Shri Randeep Pundir, learned counsel for Respondent No. 8.
78. On the basis of pleadings of parties, evidence on record and arguments addressed, issuewise findings are as under: ISSUE NO. 1:
79. Burden of proving this issue is on the petitioners.
80. For succeeding in a claim petition filed under Section 166 of Motor Vehicles Act, it is for the petitioners to prove that the vehicle which caused the accident was being driven rashly and negligently by its driver.
81. This is sine qua non for getting the relief.
82. As per certified copy of FIR No. 866/08 registered at P.S. Kosi Kalan, driver of vehicle No. HR 38J 6245 was driving the vehicle in a rash and negligent manner and MACT No. 99/12/09 Smt. Phoolwati Devi & Ors. Vs. Bhagwan Das Auto Fin. Ltd. & Ors. Page 24 of 46 caused accident with vehicle No. DL 4C AH 2913 and DL 6CH 8612 resulting in fatal injuries to those traveling in WagonR and injuries to those who were traveling in the other car.
83. As per Ex. PW5/3, which is certified copy of statement of one Shri Mukesh Kumar recorded by the police under Section 161 of Cr. P.C, he had stated that he had seen an accident on 14.11.2008, at about 8:30 a.m. in front of Daga Plywood Factory. He had also stated that Vehicle No. HR 38J 6245 came on the wrong side and hit vehicle No. DL 4C AH 3913 and DL 6CH 8612 resulting in death of three persons sitting in WagonR Car who are still trapped in the car.
84. Perusal of certified copy of site plan which is part of Ex. P1W1/1 shows that Tata Trailer was going from Mathura to Delhi and the other two cars i.e. WagonR and Honda Civic Car were coming from Delhi to Mathura. Point S is the place where Tata Trailer had hit both the cars after coming to the wrong side.
85. Police has also filed chargesheet against the driver of Tata Trailer / Respondent No. 2.
86. Driver of Tata Trailer has neither filed any written statement nor entered in the witness box to give his version of the accident.
87. Although petitioners have not examined Shri Mukesh Kumar who is the complainant in FIR No. 866/08 at P.S. Kosi Kalan but they have examined partner of Respondent No. 4, Shri Ashok Aggarwal, as PW6.
88. PW6 has given a different version of sequence of MACT No. 99/12/09 Smt. Phoolwati Devi & Ors. Vs. Bhagwan Das Auto Fin. Ltd. & Ors. Page 25 of 46 events leading to the accident than mentioned by the petitioners in their claim petitions.
89. In evidence by way of affidavit, PW6 has stated that Tata Trailer had veered towards right side from the cut of the divider at a very high speed from wrong side and came in front of vehicles coming from Delhi resulting in collision. He has deposed that after the collision Honda Civic Car turned back towards Delhi side and at that time the Tata Trailer also hit WagonR Car in which the three deceased were traveling.
90. In crossexamination, he deposed that the offending vehicle had come in front of his car abruptly. His driver had tried his best to slow down the car. He denied a suggestion that the accident had taken place due to negligence of his driver i.e. Respondent No. 6.
91. Perusal of certified copy of FIR, site plan, statement of Sh. Manoj Kumar recorded under section 161 of Cr. P.C. and certified copy of chargesheet shows that the accident had taken place due to rash and negligent driving of driver of offending vehicle Tata Trailer, bearing registration no. HR 38J6245.
92. Perusal of statement of eye witness, PW6 also shows that the accident had taken place due to rash and negligent driving of respondent no. 2. Although PW6 has given different sequence of events leading to the accident but the inference that can be drawn from the evidence of PW6 is that the accident had taken place due to negligence of Respondent No. 2.
MACT No. 99/12/09 Smt. Phoolwati Devi & Ors. Vs. Bhagwan Das Auto Fin. Ltd. & Ors. Page 26 of 4693. Therefore, Issue No. 1 is decided in favour of petitioners and against Respondent No. 2, holding and directing that Sh. Om Prakash, Sheokand, husband of petitioner, Smt. Phoolwati Devi, Sh. Suresh Saharan, husband of petitioner Smt. Darshana Devi and Sh. Rajiv Kumar, husband of petitioner Smt. Murti Devi had sustained fatal injuries on their persons in an accident which took place on 14.11.2008 due to negligent driving of vehicle, bearing registration no. HR38J6245 being driven in a negligent manner by Islamuddin / Respondent No. 2 owned by M/s Bhagwan Dass Auto Finance Limited and insured with Respondent No. 3.
ISSUE NO. 2:
94. First compensation payable to petitioners in MACT 99/12/09 which is a claim petition filed by Smt. Phoolwati Devi and others shall be taken into consideration.
95. In claim petition, these petitioners have stated that the deceased Late Sh. Om Prakash Sheokand was 59 years of age at the time of accident. He was director of Chattisgarh Coal, Private Limited and was earning Rs. 28,501/ per month.
96. The breakup of earnings of Rs.28,501/ is given as under: i. Pension from defence services Rs.11,501/.
ii. Salary from Chhattisgarh Coal Transport Co. Limited Rs. 12,000/.
iii. IncentiveRs.5,000/.
MACT No. 99/12/09 Smt. Phoolwati Devi & Ors. Vs. Bhagwan Das Auto Fin. Ltd. & Ors. Page 27 of 4697. In evidence by way of affidavit, PW1 has stated that the deceased was income tax payee and was continuously filing income tax returns. She has deposed that the deceased had agricultural income of Rs.1,00,000/ per annum which has been reduced drastically due to lack of supervision which was being done by the deceased in his life time.
98. Perusal of Ex.P1W1/3, which is ITR for assessment year 20062007, shows that income from salary was Rs. 87,204/ and the income from business or profession was Rs. 99,000/. Income from any other source was Rs.633/ and total income was Rs.1,86,837/.
99. Perusal of Ex.P1W1/3 shows that the deceased had not shown any agricultural income in the ITR for rate purposes. Although at serial no. 24, dealing with agricultural income, a figure of Rs.1,86,840/ is mentioned but that appears to be for serial no. 23 i.e. total income.
100. Petitioners have also filed statement of total income along with ITR. Perusal of the same shows that petitioners had received Rs. 87,204/ as pension and presumptive income under Section 44 AE of Income Tax Act is Rs.84,000/ and profit from sale of tipper no. CG 12ZC 9153 is Rs.15,000/, making total income from business as Rs. 99,000/. In this statement, no income is shown from agricultural land.
101. Ex.P1W1/4 is ITR for financial year 20072008. Perusal of statement of total income shows that now the MACT No. 99/12/09 Smt. Phoolwati Devi & Ors. Vs. Bhagwan Das Auto Fin. Ltd. & Ors. Page 28 of 46 pension had increased to Rs.90,036/ per annum and business income had increased to Rs.3,25,000/ per annum. Therefore, total income of the deceased became Rs. 4,15,420/.
102. Petitioners have also filed salary certificate of the deceased as Ex.P1W1/5 as per which the deceased was drawing a monthly salary of Rs.11,931/ for the period from April to October, 2008. However, this income is not reflected in ITRs and therefore cannot be taken into account for calculating loss of dependency for the petitioners.
103. In cross examination, PW1 deposed that she is receiving family pension. However, amount of family pension did not come on record.
104. Petitioners have also examined a witness from Chattisgarh Coal Transport Private Limited. This witness, PW2 has stated that the deceased was working as a supervisor in the company. Attendance register and salary record for the month of April, 2008 to October, 2008 were proved as Ex.PW2/B and Ex.PW2/C, respectively.
105. Perusal of Ex.PW2/C, which is register of wages, maintained by Chattisgarh Coal Transport Private Limited, shows that the deceased was getting gross amount of Rs. 11,406/ per month as wages. As noted above, as this income is not shown in the ITRs, the same cannot be taken into consideration.
106. Counsel for Respondent No. 5 has filed written arguments and has taken an objection that an income of Rs.
MACT No. 99/12/09 Smt. Phoolwati Devi & Ors. Vs. Bhagwan Das Auto Fin. Ltd. & Ors. Page 29 of 463.25 Lakhs per annum is an estimated higher income, under section 44 AE of the Income Tax Act and this being an estimated higher income, it cannot be treated equivalent to actual income.
107. He has also argued that the agricultural land is still available with the family of the deceased.
108. Therefore, petitioners would not have suffered any loss of agricultural income due to demise of the deceased because a person cannot do agricultural work at his native place, which is situated at a long distance from the work place.
109. Therefore, he has argued that case of the petitioners be decided only after considering minimum wages as the petitioners have failed to prove the income of the deceased by leading cogent evidence.
110. Section 44AE of the Income Tax Act, 1961 is as under:
Special provision for computing profits and gains of business of plying, hiring or leasing goods carriages: "1) Notwithstanding anything to the contrary contained in sections 28 to 43C, in the case of an assessee, who owns not more than 10 goods carriages {at any time during the previous year} and who is engaged in the business of plying, hiring or leasing such goods carriages, the income of such business chargeable to tax under the head "Profits and gains of business or profession" shall be deemed to be the aggregate of the profits and gains, from all the goods carriages owned by him in the previous year, computed in accordance with the provisions of subsection (2).MACT No. 99/12/09 Smt. Phoolwati Devi & Ors. Vs. Bhagwan Das Auto Fin. Ltd. & Ors. Page 30 of 46
{(2) For the purposes of subsection(1), the profits and gains from each goods carriage, i. being a heavy goods vehicle, shall be an amount equal to five thousand rupees for every month or part of a month during which the heavy goods vehicle is owned by the assessee in the previous year or an amount claimed to have been actually earned from such vehicle, whichever is higher;
ii. other than a heavy goods vehicle, shall be an amount equal to four thousand five hundred rupees for every month or part of a month during which the goods carriage is owned by the assessee in the previous year or an amount claimed to have been actually earned from such vehicle, whichever is higher.}
3). Any deduction allowable under the provisions of sections 30 to 38 shall, for the purposes of subsection(1), be deemed to have been already given full effect to an no further deduction under those sections shall be allowed:
[Provided that where the assessee is a firm, the salary and interest paid to its partners shall be deducted from the income computed under sub section (1) subject to the conditions and limits specified in clause(b) of section 40].
4). The written down value of any asset used for the purpose of the business referred to in subsection (1) shall be deemed to have been calculated as if the assessee had claimed and had been actually allowed the deduction in respect of the depreciation for each of the relevant assessment years.
5). The provisions of sections 44AA and 44AB shall not apply in so far as they relate to the business MACT No. 99/12/09 Smt. Phoolwati Devi & Ors. Vs. Bhagwan Das Auto Fin. Ltd. & Ors. Page 31 of 46 referred to in subsection(1) and in computing the monetary limits under those sections, the gross receipts or, as the case may be, the income from the said business shall be excluded.
6). Nothing contained in the foregoing provisions of this section shall apply, where the assessee claims and produces evidence to prove that the profits and gains from the aforesaid business during the previous year relevant to the assessment year commencing on the 1st day of April, 1997, or any earlier assessment year, are lower than the profits and gains specified in subsections(1) and (2), and thereupon the Assessing Officer shall proceed to make an assessment of the total income or loss of the assessee and determine the sum payable by the assessee on the basis of assessment made under subsection (3) of section 143.
7). Notwithstanding anything contained in the foregoing provisions of this section, an assessee may claim lower profits and gains than the profits and gains specified in subsections (1) and (2), if he keeps and maintains such books of account and other documents as required under subsection(2) of section 44AA and gets his accounts audited and furnishes a report of such audit as required under section 44AB.
Explanation For the purposes of this section
(a) The expression 'goods carriage' and 'heavy goods vehicle' shall have the meanings respectively assigned to them in section 2 of the Motor Vehicles Act, 1988(59 of 1988).
(b) An assessee, who is in possession of a goods carriage, whether taken on hire purchase or on installments and for which the whole or part of the amount payable is still due, shall be deemed to be the owner of such goods carriage.}"
111. In the opinion of this Tribunal, ITRs filed by an MACT No. 99/12/09 Smt. Phoolwati Devi & Ors. Vs. Bhagwan Das Auto Fin. Ltd. & Ors. Page 32 of 46 individual indicate the income earned by him as no individual will file inflated ITR and will pay tax on that anticipating fatal injuries to him in future.
112. As per Ex.P1W1/4, income of the deceased from plying of Tipper No. CG 12ZC9355, CG 12ZC9357 was Rs. 3,25,000/ per annum for assessment year 20072008.
113. There is no evidence that these heavy goods vehicles were sold and are no more being plied for business by the legal heirs of the deceased.
114. Therefore, in absence of evidence that these vehicles are no more being used for business purposes by the LRs of the deceased, it cannot be treated that petitioners have suffered a loss of income of Rs.3,25,000/ per annum with the demise of the deceased.
115. PW1, widow of the deceased is receiving family pension every month after the death of the deceased. She has not disclosed the difference in the pension received by the deceased during his life time and family pension now received by her after the death of the deceased.
116. Therefore, no benefit can be given to the petitioners with regard to loss of income with regard to pension drawn by the deceased during his life time.
117. Moreover, agricultural land is also still available with the petitioners. The deceased was not the tiller of the land. Therefore, the petitioners would still be getting agricultural income by getting the same cultivated through some other labourers. Moreover, the deceased, during his MACT No. 99/12/09 Smt. Phoolwati Devi & Ors. Vs. Bhagwan Das Auto Fin. Ltd. & Ors. Page 33 of 46 lifetime had not shown any agricultural income for rate purposes in the ITRs. Therefore, no benefit can be given to the petitioners for loss of agricultural income on the death of the deceased.
118. As there is no evidence that after the death of the deceased Tipper No. CG 12 ZC 9355 and CG 12 ZC 9357 were sold it can be assumed that petitioners will be getting some income by plying those vehicles.
119. Therefore, income of the deceased shall be treated as Rs. 2,16,666/ per annum i.e. Rs. 3,25,000/ x 2/3.
120. Petitioner No. 2 is major and gainfully employed. Petitioner No. 3 and 4 are married daughters of the deceased. Therefore, only Petitioner No. 1 was financially depended upon the deceased. Therefore, 50% deduction is to be made for personal expenses of the deceased.
121. 50% of Rs.2,16,666/ is Rs. 1,08,333/.
122. Petitioners have stated in the claim petition that the age of the deceased was 59 years at the time of accident. His date of birth as per ITR Ex. P1W1/3 is 18.12.1948. Date of accident is 14.11.2008. He was therefore slightly less than 60 years of age.
123. As per the decision of Hon'ble Supreme Court in the case of Sarla Verma Vs. DTC: 2009 (6) Scale 126, the multiplier that will apply will be of 9.
124. Therefore, Loss of Dependency for the petitioners would be Rs. 1,08,333/ x 9 = Rs. 9,74,997/.
125. In the case of New India Assurance Co. Ltd. v.
MACT No. 99/12/09 Smt. Phoolwati Devi & Ors. Vs. Bhagwan Das Auto Fin. Ltd. & Ors. Page 34 of 46Bharat Singh MAC APP. No. 137/12 dated 08.08.12, the Hon'ble High Court of Delhi has held that when full compensation is awarded towards loss of dependency, only a nominal sum is to be awarded towards loss of love and affection.
126. It was further held that the trend of the Hon'ble High Courts and the Hon'ble Supreme Court is to grant a sum of Rs. 25,000/ under the head of loss of love and affection.
127. Such a sum was granted by the Hon'ble Supreme Court in Sunil Sharma v. Bachittar Singh (2011) 11 SCC 425 and in Baby Radhika Gupta v. Oriental Insurance Co. Ltd. (2009) 17 SCC 627 towards love and affection.
128. Therefore, the petitioners are also entitled to a sum of Rs. 25,000/ for Loss of Love & Affection.
129. Petitioners are also entitled to a sum of Rs. 10,000/ for Loss of Estate and Rs. 10,000/ for Cremation Charges.
130. Petitioner No. 1 being the widow of the deceased is also entitled to a compensation of Rs. 10,000/ for Loss of Consortium.
131. Therefore, total compensation payable to the petitioners would be Rs. 10,29,997/ which shall be payable with interest @ 7.5% per annum from the date of filing of this claim petition which is 17.05.2009 till its deposit.
132. Now, compensation payable to the petitioners in MACT No. 103/12/09 which is a case filed by Smt. Darshana Devi & Ors. is being taken up.
MACT No. 99/12/09 Smt. Phoolwati Devi & Ors. Vs. Bhagwan Das Auto Fin. Ltd. & Ors. Page 35 of 46133. It is stated in this claim petition that Late Shri Suresh Saharan was 44 years of age at the time of accident and was earning Rs. 20,000/ per month being a Supervisor with Mahanadi Chhatisgarh Coal Transport.
134. Smt. Darshana Devi entered in the witness box as PW4 and stated that the deceased was earning Rs. 19,500/ along with other incentives. He was looking after agricultural land measuring 3 acres and was earning Rs. 3,00,000/ per annum as agricultural land. She has stated that income from agricultural land is now reduced to Rs. 60,000/ and she has suffered a loss of Rs. 2,40,000/ per annum due to demise of her husband.
135. She has stated that the deceased was also earning a sum of Rs.3,00,000/ per annum through a Dairy Farm at Gevra, Chhatisgarh which had to be closed after the death of the deceased and petitioners are entitled to a compensation of Rs. 3,00,000/ per annum on this account as well.
136. As per Ex. PW4/2, the deceased was earning Rs. 19,500/ per month being an employee of Mahanadi Coal Transport.
137. As per Ex. PW4/3 which is Nakal Jamabandi (Padat Patwar), Smt. Dharshana Devi is recorded owner of the agricultural land being widow of Shri Raj Singh.
138. In crossexamination, this witness deposed that she does not know mode of payment of salary to her husband by his employer namely, Mahanadi Coal Transport. She stated that she is not having any appointment letter. The MACT No. 99/12/09 Smt. Phoolwati Devi & Ors. Vs. Bhagwan Das Auto Fin. Ltd. & Ors. Page 36 of 46 agricultural land which was in the name of her husband is now mutated in the name of his legal heirs. The land was cultivated through labourers during life time of the deceased. She stated that she has no evidence that the deceased had a Farm House at Gevra, Chhatisgarh.
139. PW3, Shri Santosh Mishra an Accountant of M/s. Mahanadi Coal Transport Pvt. Ltd. proved attendance and salary records of the deceased. As per Ex. PW3/B, salary drawn by the deceased was Rs. 17,550/ per month.
140. No benefit can be given to the petitioners for loss of agricultural income as a person working at Chhatisgarh cannot be expected to cultivate his land at Haryana. Even during the life time of the deceased, the deceased was getting the land cultivated through labourers. Therefore, petitioners cannot be assumed to have suffered loss of agricultural income on the death of the deceased.
141. No benefit can be given to the petitioners for loss of income from Farm House at Gevra as there is no evidence in that regard.
142. Deceased was not an income tax payee. However, relying upon Ex. PW3/C, it can be assumed that monthly income of the deceased was Rs. 17,500/ per month at the time of accident.
143. No suggestion was given to PW4 that age of the deceased was not 44 years at the time of accident. Therefore, for the purposes of disposal of this case, age of the deceased would be treated as 44 years.
MACT No. 99/12/09 Smt. Phoolwati Devi & Ors. Vs. Bhagwan Das Auto Fin. Ltd. & Ors. Page 37 of 46144. Petitioner No. 4 is married daughter of the deceased. Therefore, only Petitioner No. 1 to 2 and 3 will be treated as dependents on the deceased.
145. Relying on the case of Smt. Santosh Devi v. National Insurance Company Ltd. and others decided by Hon'ble Supreme Court in Civil Appeal No. 3723 of 2012 arising out of SLP (C) No. 24489 of 10 dated 23.04.2012 and also relying on the case of Rakhi v. Satish Kumar & Ors. which is MAC APP. No. 390/11 dt. 16.07.11 decided by Hon'ble High Court of Delhi, 30% on account of inflation is to be added when the deceased or the victim is aged up to 50 years.
146. Once 30% is added to the income of the deceased, his assumed income would become Rs. 22,750/ per month. One third is to be deducted for personal expenses of the deceased. Therefore, contribution of the deceased to his family would be Rs. 15,166/ per month. Loss of Dependency will be Rs. 25,47,888/ i.e. Rs. 15,166/ x 12 x 14.
147. The petitioners are also entitled to a sum of Rs. 25,000/ for Loss of Love & Affection.
148. Petitioners are also entitled to a sum of Rs. 10,000/ for Loss of Estate and Rs. 10,000/ for Cremation Charges.
149. Petitioner No. 1 being the widow of the deceased is also entitled to a compensation of Rs. 10,000/ for Loss of Consortium.
150. Therefore, total compensation payable to the petitioners would be Rs.26,02,888/ which shall be payable MACT No. 99/12/09 Smt. Phoolwati Devi & Ors. Vs. Bhagwan Das Auto Fin. Ltd. & Ors. Page 38 of 46 with interest @ 7.5% per annum from the date of filing of this claim petition which is 17.05.2009 till its deposit.
151. In the end, compensation payable to the petitioners namely, Smt. Murti Devi & Ors. in MACT No. 105/12/09 is being taken up.
152. These petitioners have stated in their claim petition that the age of the deceased at the time of accident was 48 years and he was earning Rs. 30,000/ per month by working with M/s. Mahanadi Chhatisgarh Coal Transport Co.
153. Widow of the deceased Smt. Murti Devi entered in the witness box as PW5 and stated that her husband was having a flourishing business of plying tippers i.e heavy trucks and as per income tax returns for the assessment year, 200809 the profit declared from the said business as well as from other sources was Rs. 2,96,868/. ITR for assessment year, 200809 is Ex. PW5/5, as per which gross total income of the deceased was Rs. 2,96,870/ and he had agricultural income of Rs. 30,000/ per annum.
154. In her crossexamination, she deposed that her husband was doing business of transport as well as service in a transport company. She deposed that during his life time, the deceased was attending to agricultural land and was doing service also simultaneously.
155. In absence of any evidence in the form of ITR regarding loss of agricultural income after the demise of the deceased, no benefit can be given to these petitioners for loss of agricultural income.
MACT No. 99/12/09 Smt. Phoolwati Devi & Ors. Vs. Bhagwan Das Auto Fin. Ltd. & Ors. Page 39 of 46156. The agricultural land is still available with the petitioners. It is difficult to presume that deceased was doing job at Chhatisgarh and was simultaneously attending to his agricultural fields at Haryana also.
157. As per computation of total income, deceased had income of business or profession which was assessed under Section 44AE of the Income Tax Act. There is no evidence that the transport vehicles were sold by the petitioners after death of the deceased.
158. Therefore, Loss of Income for the petitioners would be Rs. 2,96,868/ x 2/3 = Rs. 1,97,912/ per annum.
159. When 30% is added to this towards inflation the annual income of the deceased would increase to Rs. 2,57,285/.
160. As per ITR, date of birth of the deceased was 22.05.1960. Therefore, on the date of accident, he was more than 48 years of age.
161. Therefore, multiplier of 13 will be applicable.
162. There are four dependents on the deceased. Therefore, one fourth will be deducted for personal expenses of the deceased. After deducting one fourth for personal expenses of the deceased, the Financial Loss for the petitioners will be Rs. 2,57,285/ x 3/4 x 13 = Rs. 25,08,528/.
163. The petitioners are also entitled to a sum of Rs. 25,000/ for Loss of Love & Affection.
164. Petitioners are also entitled to a sum of Rs. 10,000/ for Loss of Estate and Rs. 10,000/ for Cremation MACT No. 99/12/09 Smt. Phoolwati Devi & Ors. Vs. Bhagwan Das Auto Fin. Ltd. & Ors. Page 40 of 46 Charges.
165. Petitioner No. 1 being the widow of the deceased is also entitled to a compensation of Rs. 10,000/ for Loss of Consortium.
166. Therefore, total compensation payable to the petitioners would be Rs.25,63,528/ which shall be payable with interest @ 7.5% per annum from the date of filing of this claim petition which is 05.06.2009 till its deposit.
167. As the accident was caused by rash and negligent driving of Respondent No. 2, the next question is whether this compensation is to be paid by its insurer Respondent No. 3 or Respondent No. 1 and 2, the owner and driver.
168. On behalf of Respondent No. 3, its Deputy Manager, Shri Avinash Kumar, entered in the witness box as R3W1 who proved attested copy of insurance policy as Ex. R3W1/1 and notice served upon owner of the vehicle under Order XII Rule 8 of CPC was proved as Ex. R3W1/2. In this notice, the insured was called upon to produce the driving license of its driver. The postal receipt as per which this notice was sent to the insured was proved as Ex. R3W1/3 and UPC receipt was proved as Ex. R3W1/4. The witness deposed that as the vehicle was being driven by its driver without a valid and effective driving license, insurance company has no liability to pay the compensation.
169. Counsel for Respondent No. 3 tendered in evidence notice sent to the driver to produce his driving license. The notice was exhibited as Ex. R3W2/1 and postal MACT No. 99/12/09 Smt. Phoolwati Devi & Ors. Vs. Bhagwan Das Auto Fin. Ltd. & Ors. Page 41 of 46 receipt, as per which this notice was sent, was proved as Ex. R3W2/2.
170. Perusal of record shows that the owner of the offending vehicle had appeared before this Court on a number of occasion but written statement was not filed.
171. In spite of notice to produce driving license of the driver of the offending vehicle, Respondent No. 1 has not produced the said driving license.
172. Insurance company has done everything that was within its means to prove that the driver was driving the vehicle without any driving license. There is no other evidence which was expected from insurance company to prove that Respondent No. 2 was driving the vehicle without a valid and effective driving license.
173. Therefore, the insured has committed breach of terms and conditions of insurance policy inasmuch as he had allowed its driver to drive the vehicle without any driving license.
174. Therefore, compensation will be payable by Respondent No. 3 in the first instance with liberty to recover the same from Respondent No. 1 and 2.
175. Let compensation be deposited by insurance company within 30 days from today under intimation to the petitioners by registered post.
176. Following directions are given for apportionment of compensation of Rs. 10,29,997/ payable in the case of MACT No. 99/12/09, which is a claim petition, filed by Smt. MACT No. 99/12/09 Smt. Phoolwati Devi & Ors. Vs. Bhagwan Das Auto Fin. Ltd. & Ors. Page 42 of 46 Phoolwati Devi and others: i. The entire compensation would be payable to the widow of the deceased. This compensation shall be deposited by the insurance company directly with State Bank of India, Dwarka Courts, New Delhi and the cheque will be in the name of SBI A/c Phoolwati. Out of this, 15% shall be released in her Saving Bank Account to be opened in State Bank of India, Dwarka Courts, New Delhi. Balance compensation will be kept in 15 FDRs of equal amount for a period of 1 to 15 years. Monthly interest will be credited in her Saving Bank Account regularly.
177. Following directions are given for apportionment of compensation of Rs. 26,02,888/ payable in the case of MACT No. 103/12/09, which is a claim petition, filed by Smt. Darshana Devi and others: i. 50% out of the total awarded compensation with proportionate interest shall be payable in favour of Petitioner No. 1, widow of the deceased. This payment shall be deposited by the insurance company directly with State Bank of India, Dwarka Courts, New Delhi and the cheque will be in the name of SBI A/c Smt. Darshana Devi. Out of it, 15% will be released in favour of Darshana Devi in her saving bank account to be opened at SBI, Dwarka Courts, New Delhi and rest of the compensation will be deposited in 15 FDRs of equal amount for a period of 1 to 15 years. She would be entitled to receive monthly interest on these FDRs.
ii. 25% of the compensation will be payable to Petitioner No. 2 & 3 each. The compensation cheques will be deposited in the names of SBI A/c Shri Harpal Saharan and SBI A/c Master Ajay Pal Saharan. This amount shall be kept in MACT No. 99/12/09 Smt. Phoolwati Devi & Ors. Vs. Bhagwan Das Auto Fin. Ltd. & Ors. Page 43 of 46 FDRs till the time these claimants attain the age of 21 years or for a period of 3 years, whichever is later. However, Petitioner No. 1, their mother will be entitled to receive monthly interest on these FDRs for the welfare and upkeep of Petitioner No. 2 and 3.
178. Following directions are given for apportionment of compensation of Rs. 25,63,528/ payable in the case of MACT No. 105/12/09, which is a claim petition, filed by Smt. Murti Devi and others: i. 50%, Out of the total awarded compensation with proportionate interest shall be payable in favour of Petitioner No. 1, widow of the deceased. This payment shall be deposited by the insurance company directly with State Bank of India, Dwarka Courts, New Delhi and the cheque will be in the name of SBI A/c Smt. Murti Devi. Out of this, 15% shall be released in her Saving Bank Account to be opened in State Bank of India, Dwarka Courts, New Delhi. Balance compensation will be kept in 15 FDRs of equal amount for a period of 1 to 15 years. Monthly interest will be credited in her Saving Bank Account regularly.
ii. 20% out of the total awarded compensation with proportionate interest shall be payable in favour of Petitioner No. 2 and 3 each. This payment shall be deposited by the insurance company directly with State Bank of India, Dwarka Courts, New Delhi and the cheque will be in the name of SBI A/c Shri Vineet Kadyan and SBI A/c Ms. Diksha Kadyan. Out of this, 15% shall be released in their Saving Bank Accounts to be opened in State Bank of India, Dwarka Courts, New Delhi. Balance compensation will be kept in 5 FDRs of equal MACT No. 99/12/09 Smt. Phoolwati Devi & Ors. Vs. Bhagwan Das Auto Fin. Ltd. & Ors. Page 44 of 46 amount for a period of 1 to 5 years. Monthly interest will be credited in their Saving Bank Accounts regularly.
iii. 10%, Out of the total awarded compensation with proportionate interest shall be payable in favour of Petitioner No. 4, mother of the deceased. This payment shall be deposited by the insurance company directly with State Bank of India, Dwarka Courts, New Delhi and the cheque will be in the name of SBI A/c Smt. Phoolan Devi. Out of this, 15% shall be released in her Saving Bank Account to be opened in State Bank of India, Dwarka Courts, New Delhi. Balance compensation will be kept in 15 FDRs of equal amount for a period of 1 to 15 years. Monthly interest will be credited in her Saving Bank Account regularly.
179. All the original FDRs shall remain with the bank. Only copies thereof will be given to the petitioners. However, pass book will be given to the petitioners. No cheque book shall be issued to the petitioners.
180. No loan or advance will be given against these deposits.
181. FDRs shall not be prematurely encashed without leave of this Tribunal.
182. Petitioners shall cooperate with the bank by providing requisite documents and by completing required formalities for opening Saving Bank and FDR Accounts.
183. A copy of this order be placed on the file of MACT No. 105/12/09 titled as Smt. Murti Devi & Ors. Vs. Bhagwan Das & Ors. and on the file of MACT No. 103/12/09 titled as MACT No. 99/12/09 Smt. Phoolwati Devi & Ors. Vs. Bhagwan Das Auto Fin. Ltd. & Ors. Page 45 of 46 Smt. Darshana Devi & Ors. Vs. Bhagwan Das & Ors.
184. Copy of this order be given dasti to all the parties.
185. A copy of this order be also sent to the State Bank of India, Dwarka Courts, New Delhi.
186. File be consigned to the Record Room.
Announced in the open Court On the 24th Day of November, 2012.
(ARUN BHARDWAJ) PRESIDING OFFICER MOTOR ACCIDENTS CLAIMS TRIBUNALII DWARKA COURTS: NEW DELHI MACT No. 99/12/09 Smt. Phoolwati Devi & Ors. Vs. Bhagwan Das Auto Fin. Ltd. & Ors. Page 46 of 46