Delhi District Court
) Smt. Saroj Wd/O Late Sh. Sanjeev Kumar vs ) Sh. Rama Nand Pandey (Driver) on 22 May, 2012
1
IN THE COURT OF SH. D.K. MALHOTRA, ADDL. DISTRICT & SESSIONS
JUDGE CUM PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNAL,
ROHINI COURTS, DELHI
(MACT No. 136/11)
1) Smt. Saroj Wd/o Late Sh. Sanjeev Kumar
2) Master Rohit S/o Late Sh. Sanjeev Kumar
3) Master Rahul S/o Late Sh. Sanjeev Kumar
4) Sh. Kashi Ram S/o Sh. Udmi Ram
(Petitioners no. 2 & 3 being minors through their mother and natural
guardian Smt. Saroj i.e. petitioner no.1)
All resident of village & PO Chahrwala,
Tehsil Sirsa, PS Nathusarai Chapata,
Distt. Sirsa, Haryana --------------Petitioners
Versus
1) Sh. Rama Nand Pandey (Driver),
S/o Sh. Sidh Nath Pandey,
R/o Village & PO Andupur, PS Paraspur,
Distt. Gonda, UP.
2) M/s AIR Transport Corpn. (Assam) Pvt Ltd. (Owner)
37 Rani Jhansi Road,
New Delhi-110055.
3) M/s HDFC Ergo General Insurance Co. Ltd. (Insurance Company)
Office No.203, 2nd Floor, Corporate Suites,
M. G. Road, Gurgaon - 122110, Haryana -----------Respondents
Date of institution------28.04.2011
Date of decision---------22.05.2012
(APPLICATION U/S 166 AND 140 OF MOTOR VEHICLES ACT
FOR GRANT OF COMPENSATION)
**********************************
JUDGMENT:-
As per averments made in the petition, on 21.12.2010 at about 4pm Sh. Sanjeev Kumar (hereinafter referred to as deceased) aged about 33 years was deputed by his employer Sh. Ashok Garg for loading of goods in vehicle no.
2HR-55L-1764 belonging to respondent no.2 at his factory and respondent no.1 was driving the said vehicle and when he was trying to enter the said vehicle from the gate of the said factory he applied the back gear but accelerated the Tempo at fast speed in rash and negligent manner, resulting into striking off the Tempo to the deceased with great force and the maximum impact was on the head of the deceased resulting into grievous fatal injuries to the deceased, who died at the spot. The deceased was taken to Babu Jagjivan Ram Hospital where he was declared brought dead. Thereafter, a criminal case was registered against respondent no.1 vide FIR No.500/10 u/s 279/304A IPC in police station Narela, Delhi. It is further averred that accident took place due to rash and negligent driving on the part of the respondent no.1.
Petitioner no. 1 being widow, petitioner no. 2 & 3 being minor sons of the deceased and petitioners no.4 being father of the deceased alleged that the deceased was aged about 33 years and was enjoying excellent health. It is further averred that deceased was working as a helper and was earning Rs.6,000/- per month. They claimed sum of Rs.60lakhs as compensation from respondents being driver, owner and insurance company of the offending vehicle.
Respondents no. 1 and 2 have filed a joint written statement denying the averments averred in the plaint and stated that alleged accident took place due to the sole negligence and carelessness on the part of deceased. They further averred that offending vehicle was duly insured with respondent no.3. Respondent no.3/Insurance Company has filed the written statement admitting that the offending vehicle was insured with it but tried to avoid its liability on various technical grounds.
Petitioners during pendency of the case received interim compensation of Rs. 50,000/- along with interest @ 7.5% from the date of institution under section 140 of Motor Vehicles Act on account of no fault liability vide order dated 09.01.2012.
3On the basis of pleadings of the parties, following issues were framed on 21.12.2011 by my ld. Predecessor:
1). Whether Sh. Sanjeev Kumar S/o Sh. Kashi Nath died due to injuries suffered in an accident on 21.12.2010 at about 4pm at F-1694, near Gate DSIDC, Bhorgarh, Narela, Delhi-40, within the jurisdiction of PS: Narela due to rash and negligent driving of Tempo bearing no. HR-55L-1764 being driven by respondent no.1 ? OPP
2). Whether the petitioners are entitled to compensation, if so, to what an extent and from which of the respondent? OPP
3). Relief.
In order to prove their case, petitioners i.e. legal heirs of the deceased have examined petitioner no.1 / widow of deceased as PW1 and Sh. Dalip Singh as PW2. Petitioner no.1 widow of the deceased has reiterated the entire story of her petition. She has proved on record attested copy of criminal case record as Ex.PW1/1, copy of ration card as Ex.PW1/2, Voter I-Card of father of deceased as Ex.PW1/3 and school transfer certificate of the deceased as Ex.PW1/4.
PW2 Sh. Dalip Singh is the eye witness of the accident and deposed about the manner of accident, the way it is taken place. He further stated that all of a sudden the respondent no.1 rashly and negligently without indication backed the offending vehicle and forcefully hit the deceased, as a result of which he fell down and received grievous injuries and died on the spot.
Despite opportunities given, respondents have not lead any evidence, therefore, the evidence on behalf of the respondents is treated as closed and the matter was fixed for final arguments. I have heard counsel for the parties and gone through the record of the case. My decision on the above mentioned issues is as under;
4ISSUE NO. 1:-
The principles to be followed in the case of motor accident claim have been laid down by the Hon'ble High Court of Guwahati in case cited as Renu Bala Paul and Ors. vs. Bani Chakraborty and Ors. 1999 ACJ 634 by Hon'ble Guahati High Court that:
"In deciding a matter Tribunal should bear in mind the caution struck by the Apex Court that a claim before the Motor Accidents Claims Tribunal is neither a criminal case nor a civil case. In a criminal case in order to have conviction, the matter is to be proved beyond reasonable doubt and in a civil case the matter is to be decided on the basis of preponderance of evidence, but in a claim before the Motor Accidents Claims Tribunal, the standard of proof is much below than what is required in a criminal case as well as in a civil case. No doubt before the Tribunal, there must be some material on the basis of which the Tribunal can arrive or decide things necessary to be decided for awarding compensation. But the Tribunal is not expected to take or to adopt the nicety of a civil or of a criminal case. After all, it is a summary inquiry and this is a legislation for the welfare of the society.
N.K.V. Bros (P) Ltd. vs. M.Karumai Ammal & Ors. (1980) 3 SCC 475, Hon'ble Supreme Court has observed as under:-
"In Road accidents are one of the top killers in our country, especially when truck and bus drivers operate nocturnally. This proverbial recklessness often persuades the courts, as has been observed by us earlier in other cases, to draw an initial presumption in several cases based on the doctrine of res ipsa loquitur. Accidents Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic maybes. We are emphasizing this aspect because we are often distressed by transport operators getting away with it thanks to judicial laxity, despite the fact that they do not exercise sufficient disciplinary 5 control over the drivers in the matter careful driving. The heavy economic impact of culpable driving of public transport must bring owner and driver to their responsibility to their "neighbour".
Hence the standard of proof though lesser than civil and criminal case, but some evidence is required to brought on record to show that the accident was caused due to rash and negligent driving of offending vehicle. The eye witness has been examined by petitioners as PW-2. He, in his affidavit in evidence has disclosed how and in which manner accident took place and entirely blamed driver of offending Tempo in causing the accident. Nothing adverse could come in the cross- examination of the witness to discard his version. It is not the case of the respondent no.1 that he knew either the deceased or the IO before hand or that IO has any grudge against him, though he is facing prosecution. There is nothing on record to show that respondent no.1 had lodged any complaint to any higher authority regarding alleged false implication in criminal case. There is also no evidence on record to point out that respondent no.1 had any enmity with deceased or his family members or eye witnesses or investigation officer to create possibility of false implication of respondent no.1 in criminal case. Respondent no.1 & 2 have not came forward to cross-examine the eye witness PW2 nor led their own evidence and had chosen to remain out of the court from which it can be presumed that they had no defence and are indirectly admitting all the allegations. Both eye witness and the criminal case record have corroborated the story of the accident having being caused by the driver of the offending vehicle by driving the vehicle in a rash and negligent manner. In view of the above discussions it is crystal clear that accident took place due to the sole negligence on the part of driver by driving the offending vehicle in a rash and negligent manner and there was no negligence on the part of the deceased. In view of the above discussions, this issue is decided in favour of petitioners and against the respondents.
ISSUE NO. 2:-
Petitioners are entitled to both pecuniary and non pecuniary damages. Petitioners have alleged that deceased was earning Rs.9000/- per month being 6 helper, but there is no documentary evidence regarding the work and income of the deceased. PW1 has placed on record school transfer certificate of the deceased, which is Ex.PW1/4 to show that deceased was 10th class pass. In absence of any proof of income of the deceased, there remains no other option except to take the help of schedule of minimum wages to presume the monthly income of the deceased by treating him falling in matriculate category worker. Accident took place on 21.12.2010 and as per minimum wages chart, an matriculate person was presumed to be earning a sum of Rs. 6,448/- per month as applicable on relevant time. Accordingly, I am of the view that the amount of Rs. 6,448- per month has to be taken into consideration while counting monthly income of the deceased. As far as the factum of petitioners being the legal heirs of deceased is concerned, it is not disputed. They were financially dependent upon the deceased at the time of accident. Since at the time of death the age of deceased is 33 years, so future prospectus of 50% has to be added in his income as per Sarla Verma's decision. Hence the monthly income of deceased comes to Rs.9672/- (Rs.6448 + 50%).
As already discussed above, the age of the deceased was approximately 33 years at the time of his death as per School Transfer Certificate of the deceased, which is Ex.PW1/4. Hence, in view of the judgment of Hon'ble Supreme Court given in Pushpa & Others Vs National Insurance Co. Ltd. & Another reported in 2011 ACJ 2140, multiplier of 16 has to be applied upon the income of the deceased.
Deceased had left behind his wife, two minor sons and his father. Hon'ble Supreme Court in Sarla Verma vs. DTC 2009 (6) SCALE 129 has held that father is generally not treated as dependent upon the son, so accordingly it can be said that three petitioners were dependent upon the deceased at the relevant time. In view of the decision of Sarla Verma's case, the deduction of 1/3 rd from the salary of deceased has to be made upon his personal expenses. Hence after deducting 1/3th from monthly income of Rs.9672/-, monthly dependency comes to Rs.6448/- per month. Accordingly, in this case, loss of dependency is assessed at 7 Rs.12,38,016/- (6448 x 12 x 16). Hence, the petitioners are only entitled to Rs.12,38,016/- on account of loss of dependency.
Petitioners have averred that they have spent over the last rites and rituals of the accused but not brought on record any document regarding the same. It is a judicial noticeable fact that normally some expenses are incurred upon cremation, Chotha or Theharvin ceremonies etc. Hence, I deem it proper to grant lump sum amount of Rs. 10,000/- as funeral charges.
Petitioners are in my view also required to be awarded sum of Rs.1,00,000/- (Rs.25,000/- each to petitioner no. 1, 2, 3 & 4) towards loss of estate and Petitioner no.1 is also entitled to sum of Rs.50,000/- towards loss of consortium in view of the decision of Hon'ble High Court in Bedo Devi & Ors. Vs Jagat Singh & Others, reported in 2010 ACJ 2249. I also award a sum of Rs.2,00,000/- (Rs.50,000/- each to petitioner no. 1, 2, 3 & 4) towards Loss of love and affection, loss of company, parental guidance and encouragement, trauma and loss of other discomfort after relying upon the judgment of Delhi High Court in case Sajha vs. National Insurance Co. Ltd. 2010 ACJ 627.
Respondent no.3 Insurance Company has not brought on record any evidence to point out that respondent no.1 was not having any valid driving license or permit and fitness of the offending Tempo was improper as well as failed to bring on record any evidence to point out that it is not liable to pay compensation amount as assessed by the court or any term or condition of the insurance policy was breached by the insured or it has any limited liability. This fact also shows that respondent no.3 Insurance Company has no defence, accordingly in such circumstances and keeping in view the existence of valid insurance policy, respondent no. 3 alone becomes entitled to pay entire compensation amount.
After considering the merits of the case, petitioners are entitled to get the following total compensation from the respondent no. 3 insurance company :8
Pecuniary Damages
a) Funeral charges ======================Rs. 10,000/-
b) Loss of consortium ====================Rs. 50,000/-
c) Loss of dependency=================== Rs. 12,38,016/- Non Pecuniary Damages
a) Loss of love and affection etc.============Rs. 2,00,000/-
b) Loss of Estate ======================= Rs. 1,00,000/-
-------------------------------
Total Rs. 15,98,016/-
--------------------------------
Since petitioners have already received interim compensation of Rs.50,000/-, so the balance amount left payable is Rs.15,48,016/-. Petitioners shall be entitled to interest at the rate of 9% p.a as per the judgment in case New India Assurance Co. Ltd Vs Bhudhia Devi and others reported in 2010 ACJ 2045 on this amount from 04.03.2011 till realization. This issue is decided accordingly in favour of petitioners and against the respondents.
ISSUE NO. 3 (Relief):-
On the basis of findings given above, present petition is disposed off and an award is passed. Respondent no. 3 insurance company is directed to pay within 30 days a sum of Rs.15,48,016/- to the petitioners along with interest at the rate of 9% p.a. from 04.03.2011 till this amount is fully paid.
It is ordered that out of the compensation amount, a sum of Rs.3,00,000/- each be deposited in the name of petitioner nos. 2 & 3 in the form of FDRs with State Bank of India, Rohini District Courts, Delhi, for the period till they attains majority with a liberty to petitioner no.1 to withdraw quarterly interest through her savings bank account. A sum of Rs.1,00,000/- be deposited in the name of 9 petitioner no. 4 in the form of FDR with State Bank of India, Rohini District Courts, Delhi for the period of five years with a liberty to withdraw monthly interest through savings bank account. Remaining compensation amount alongwith accrued interest be deposited in the name of petitioner no. 1 being widow of deceased, in the form of FDR for a period of 5 years with State Bank of India, Rohini District Courts, Delhi, with the liberty to withdraw monthly interest through her savings bank account. It is made clear that none of FDRs shall be encashed without permission of the court. No loan or advance shall be given on these FDRs except with prior permission of court. Respondent no.3 insurance company is directed to prepare the separate cheques of the compensation amount as per above order. Insurance company is directed to make a payment of Rs.35,000/- + Rs.10,000/- out of pocket expenses by way of cheque in favour of counsel for the petitioner Sh. K. P. Mishra, Adv.-Enrl. no.D-681/95 & Sh. Ram Kumar Prabhakar, Enrl. No.D-381/98, as per judgment of Hon'ble High Court in case titled Sat Prakash Vs Jagdish reported in II (2010) ACC 194 passed by justice J.R. Midha.
Respondent no.3 insurance company is directed to prepare the separate cheques of the compensation amount as per above order. Copy of this judgment be given to petitioners and counsel for respondent no.3 insurance company for compliance. File be consigned to record room.
Announced in the open (D.K. MALHOTRA)
Court on 22.05.2012 JUDGE, MACT (OUTER-II)
DELHI