Delhi District Court
Smt. Renu Chaudhary vs Narinder Kumar Kaushik on 9 January, 2007
1
IN THE COURT OF SHRI GURDEEP SINGH : JUDGE
MOTOR ACCIDENTS CLAIMS TRIBUNAL : DELHI
Petition No. : 185/06
Date of filing of the petition : 23.8.99
Date of assignment to this court : 24.7.06
Date of Award : 9.1.2007
In re:
1. Smt. Renu Chaudhary
d/o. Sh B K Chaudhary
r/o. 32/28 East Patel Nagar
New Delhi
2. Smt. Anita Ahuja
w/o. Sh Manoj Ahuja
r/o. D-4/75, Bafira Nagar
Marve Road, Malad West
Bombay ..........Petitioners
Versus
1. Narinder Kumar Kaushik
s/o. Sh Puran Lal
2
r/o. H No 131
Vill- Sultanpur Majra
PO Nangloi
New Delhi
2. Bhupender Singh
s/o. Sh Beant Singh
3. Sarjinder Pal Singh(Sarbinder)
s/o. Sh S Bhupinder Singh
Both r/o. 48/5 Gali No 8
Krishna Park Extn
near Tilak Nagar
New Delhi
4. United India Insuracne Co Ltd
DO 8, Kasturba Gandhi Marg
New Delhi
5. B K Chaudhary
s/o. Late Sh Bhowani Dass
6. Bhupesh Kumar Chaudhary
s/o. Sh B K Chaudhary
Both r/o. 32/28 East Patel
New Delhi. ........... Respondents
APPLICATION U/S. 166 & 140 OF MOTOR VEHICLES ACT 1988 FOR GRANT OF COMPENSATION 3 APPEARANCE:
Sh. Ashok Popli counsel for petitioners Sh. Balwant Singh counsel for respondent no 1 Sh. M S Rekhi counsel for respondent no 2 Sh G N Rathi counsel for respondent no 3 Sh. R P Mathur counsel for respondent no 4 JUDGMENT/AWARD
1. This is a petition filed U/s. 166/140 of the Motor Vehicles Act (hereinafter referred to as 'Act of 1988') for grant of compensation on account of death of one Smt. Prem Chaudhary in motor vehicular accident. The claim petition is filed by two daughters of the deceased. The husband and son of the deceased are shown as respondent no 5 and 6 respectively.
2. The facts giving rise to the present petition are that it is averred in the petition that in the intervening night of 23/24 .1.99 at about 1.00 AM the petitioner no 1 alongwith her 4 mother, father, brother and aunt were coming from a marriage at Sunder Vihar in car bearing registration no DL 3CL-2068 owned by respondent no 5 and driven by respondent no 6. When their car turned towards Jawala Heri Market from Power House traffic light crossing and had almost crossed half of the road when a Maruti car bearing registration no DL 2CB-4174 came at high speed from side of Peeragarhi Chowk driven by respondent no 3 and dashed against the car of the petitioner. Both the drivers were equally rash and negligent in driving and there was error of judgment as the accident took place just in the middle of the crossing as both the driver anticipated that they would clear the crossing without dashing each other.
As result of the accident the mother and aunt of the petitioner were badly hurt and were taken to Kailash Hospital from where they were shifted to Ganga Ram 5 Hospital. The mother of the petitioner ultimately expired on 23.3.99
3. The petition was contested by all respondents except respondent no 6 who was proceeded ex-parte.
4. Written statement was filed by respondent no 1 who contested the petition on the ground that the petition is bad for non-joinder and mis-joinder of necessary parties as Joginder Pal Malhotra the proprietor of M/s. Rishi Motors is a necessary party. It is stated that neither he was the owner or the driver of the offending vehicle nor he was in possession of the offending vehicle. It is stated that the vehicle bearing no DL 2CB-4174 was sold on 4.1.99 to Bhupinder Singh s/o. Sh Beant Singh through Sh Joginder Pal Malhotra who deals in the sale and purchase of motor vehicles in the name of M/s. Rishi Motors. It is further stated that a blank signed sale letter was handed over by him 6 to Bhupinder Singh alongwith physical possession of vehicle and as such Bhupinder Singh became the absolute and lawful owner of the car in question. It is further stated that after the vehicle was impounded, the notice U/s. 133 of the M V Act was issued by the police to Bhupinder Singh to disclose the name of the driver and he in reply had stated that the car was being driven by one Sarbinder Pal Singh. It is further stated that the car was released on superdari to Bhupinder Singh. On merit the contents were denied for want of knowledge.
5. Respondent no 2 and 3 filed joint written statement and stated that Bhupinder Singh was closely known to Joginder Pal the proprietor of M/s. Rishi Motors. It is further stated that Joginder Pal Singh provided a car bearing registration no DL 2CB-4174 alongwith a driver to Bhupinder Singh who had to attend the marriage of his grand-daughter on 7 24.1.99. That the respondents with their family members were proceeding in the said car driven by Rohit Kumar and when the car entered Power House crossing and had crossed more than one half of the crossing at that time car bearing registration no DL 3CL-2068 entered the crossing from the left of their car driven by respondent no 6 in rash and negligent manner in complete disregard to the traffic rules and hit their car on left rear side with its front right portion and as a result of the forceful impact their car turned upside down on its right side. It is further stated that the other car after causing the accident took left turn on outer ring road and fled from the place. The police arrived at the spot and with the help of passers-by made the car to stand on its wheel and removed the occupants who had sustained minor injuries. It is also stated that neither Bhupinder Singh is the owner nor Sarbinder Pal Singh was the driver. It is stated 8 that the IO has falsely registered the FIR no 62/99 against them in connivance with M/s. Rishi Motors. It is stated that the IO had called them to the police station Pashim Vihar and took the driving licence of respondent no 3 and also obtained signatures of respondent no 2 and 3 on some blank papers where Joginder Pal Malhotra was already present. The possession of the car was given to Joginder Pal by the police and then they were permitted to leave the police station. It is further stated that the car was sold by M/s. Rishi Motors through M/s. Anand Motors to one Rajinder Singh much before the car was taken into possession by the IO and the registration of the car was transferred in the name of Rajinder Singh on 31.1.99. They had preliminary objections with respect to non-joinder and mis-joinder of necessary parties; further that there is no cause of action since none of the petitioners were dependent upon the 9 deceased. They denied that the deceased who was about 60 years of age and also being wife of a senior advocate was looking after the house hold work and cook the food for the family.
6. Respondent no 4 -the insurance company of vehicle no DL 3CL-2068 contested the petition on the ground that the petition is not maintainable as the claimants are the legal heirs of the insured himself. It is further stated that the FIR was registered against the driver of other car therefore no liablity can be put on them. Further, that in case the court comes to the conclusion that the accident took place on account of negligence on part of driver of insured and in case he was not holding effective and valid driving licence then they are not liable. Further that the claimants are neither the dependents or competent to claim compensation, however, it is admitted that the vehicle bearing registration 10 no DL 3CL-2068 was insured with them.
7. Petitioner filed replication to the written statement of respondent no 4 and reiterated their previous averments in the petition.
8. Respondent no 5 also contested the petition and stated that the vehicle was insured with respondent no 4 valid from 29.1.98 to 28.1.99 and that respondent no 6 was holding valid and effective driving licence at time of accident. It is further stated that accident had taken place due to error of judgment amongst the drivers which ultimately resulted in death of Smt. Prem Chaudhary.
9. From the pleading of the parties my Ld. Predecessor vide order dated 8.4.03 framed the following issues:
(i) Whether the deceased Smt. Prem Chaudhary received fatal injuries and died due to rash and negligent driving of car no DL 2CB-4174 by R3 and 11 car no DL 3CL-2068 by R6? OPP
(ii) Whether deceased Smt. Prem Chaudhary received fatal injuries and died due to rash and negligent driving of car no DL 3CL-2068 by R6 as pleaded in the WS of R2 and R3? If so, its effect? OPR2 and OPR3
(iii) Whether the suit is bad for non-joinder and mis-
joinder of necessary parties and Joginder Pal Malhotra is a necessary party for the reasons pleaded in PO No 2 to 4 of WS of R1? If so, its effect? OPR1
(iv) Whether R2 was not the owner of the car no DL 2CB -4174 on the date of accident as pleaded in the WS of R2 and R3? If so, its effect? OPR2 and OPR3
(v) Whether R3 was not the driver of the car no DL 2CB-4174 and one Rohit Kumar was driving the said car at the time of accident as alleged in WS of R2 and R3? If so, its effect? OPR2 and OPR3 12
(vi) Whether the petition is not maintainable against R4 on the ground that the claimants are the LRs of the insured himself as pleaded in PO No 1 of WS of R4? OPR4
(vii) Whether the petitioners were dependent upon the deceased at the time of her death? If so, its effect?
(viii) To what amount of compensation are the petitioners entitled and from whom?
(ix) Relief.
10. In support of their case petitioner no 1 examined herself as PW1.
11. On the other hand respondent no 1 examined himself as R1W1; R1W2 SI Rajbir Singh and R1W3 Sh Joginder Pal.
12. Respondent no 2 examined himself as R2W1. Respondent no 3 examined himself as R3W1. Respondent no 4 examined Sh Deepak from the insurance company. 13
13. I have heard counsels for the parties. Written submission are also filed on behalf of respondent no 2 and
3. Some citations are also filed on behalf of respondent no 1, 2 and 3. I have also gone through the same.
14. As agreed by both the parties the issue no 3 and 7 were deleted. My finding on other issues are as under:
ISSUE NO 1, 2, 4 & 5
15. These issues are inter related and are being disposed off by common findings.
16. PW1 testified that in the intervening night of 23/24.1.99 at about 1.00 AM she alongwith her mother, father, brother and aunt were coming from a marriage at Sunder Vihar in car bearing registration no DL 3CL-2068 owned by her father and was being driven by her brother. Their car had taken turn towards Jawala Heri Market from the Power House traffic light and had almost crossed half of the 14 crossing when suddenly a white maruti car bearing registration no DL 2CB-4174 came at a high speed from the side of Peeragarhi crossing driven by respondent no 3 and dashed against their car. She further stated that the accident had taken place in the middle of crossing and there was error of judgment on part of driver of both the car. She further stated that her mother and aunt were badly injured and were taken to Kailash Hospital from where they were shifted to Ganga Ram Hospital. She stated that her mother remained in hospital from 24.1.99 to 23.3.99 and was kept in intensive care unit where she succumbed to the injuries on 23.3.99. She also tendered in evidence the certified copy of criminal court record Ex. P1; post mortem report Ex. P2; MLC Ex. P3; death report Ex. P4.
17. In her cross examination she stated that she does not have any document except the post mortem report with 15 respect to the age of her mother. She denied that her mother was more than 68 years at time of her death. She admitted that while proceeding on way from Sunder Vihar their car was proceeding on the main road and the other other car was also proceeding on the main road from opposite direction. There was very dim street light on the road at that time. She alongwith her mother and aunt were sitting in the rear seat and while her mother was in the middle she was on the right side of her mother and her aunt on other side. She further stated that the person sitting in the rear seat were talking to each other. She did not notice the car coming from opposite direction and did not see the other car before the accident. She had noticed the car only at the time of impact. The other car struck against the rear left door and center of their car. She had not noticed any damage on the left side of the car except the broken window pane as the 16 splinters came on them at that time. She admitted that their car was in running condition and they went in the same car to Kailash Hospital from where they went to Ganga Ram Hospital. The other car had turned upside down after the accident. She did not cared for the occupants of other car as she was busy in looking after her mother and aunt. She admitted that her bother who was driving their car should have given precedent to the traffic flowing on the main road before taking right turn. She also admitted that her brother had to stop the car before right turn which he failed to do so. She stated that after about 3-4 days of the accident she had observed serious damage on the left side of their car. She denied the suggestion that there was no worthwhile damage to their car and also denied that due to abrupt application of the brakes by the driver of the other car, the other car after touching the left side of their car turned upside down. She 17 admitted that the car was being driven by respondent no 3. She denied the suggestion that the car was being driven by a non-sikh namely Rohit and stated that she cannot identify him.
18. R1W1 testified that he had sold the said vehicle to Bhupinder Singh on 4.1.99 after receiving the sale consideration. He also had given blank signed sale letter as he had purchased the said vehicle after getting it financed. He further stated that he had got the no objection dated 3.12.04 as he had paid the financed amount till 21.7.95.
19. In his cross examination he stated that he had not written any letter to transport authority regarding the sale and does not know whether as on 23-24.1.99 the said vehicle stood registered in his name or not. He denied the suggestion that he had cleared the due of finance company on 8.3.99. He admitted that there is endorsement of the 18 financer on the registration book. He denied the suggestion that after clearance of the due and after getting no objection he had sold the car to one Rajinder Singh and it was registered in his name on 31.1.99. He stated that he had never received any notice U/s. 133 of the M V Act from the police.
20. R1W2 proved the cancellation report in respect of FIR No 83/03; U/s. 420 IPC made on the complaint of Bhupender Singh which bears the endorsement of ACP.
21. R1W3 is the car dealer who stated that he got the transaction materialized for the sale of the said vehicle on 4.1.99 and the vehicle was sold by respondent no 1 respondent no 2. He stated that blank Form No 29 & 30 were also signed. He stated that he came to know regarding the accident from Sarvinder Rekhi. He also was called for inquiry and he had given detailed affidavit. 19
22. In his cross examination on behalf of respondent no 2 and 3 he stated that he used to maintain record for the transactions made but does not keep the record regarding the commission received by him. He further stated that sometime the seller used to keep the vehicle with him. He further stated that in this case the delivery letter was executed and the vehicle was financed by one Lyca Finance as the same is in the registration book. He stated that the delivery letter was with them and it was lateron seized by the police. He denied the suggestion that he had given the vehicle on hire to Bhupinder with driver at the rate of Rs. 400/- per day. He denied that he had sold the vehicle to one Rajinder Singh.
23. In his cross examination on behalf of petitioner he stated that one of the sons of Bhupinder Singh namely Gagu Rekhi was working with him as a temporary partner. He further 20 stated that when the car came to him for sale, Gagu Rekhi had requested him to allow him(Gagu) to keep the said car for his family use and he consented for the same. He did not charge any commission for the same. He stated that Rohit used to clean the vehicle and was not the driver. Since the vehicle was in the possession of Gagu Rekhi therefore, it was produced by the father of Gagu Rekhi at the police station and was also got released from the police station by father of Gagu Rekhi. He stated that at that time he was also present at the police station and he had stood surety for Survinder Singh Rekhi (Sarjinder). He further stated that he came to know that after the accident Bhupinder Singh had sold the car to one Rajinder Singh. He further stated that he had to take Rs. 40,000/- from Gagu Rekhi and when he could not pay the said amount, he left the vehicle with him. The said vehicle was released at the 21 police station by the police after preparing the relevant papers and after getting them signed.
24. Respondent no 2 examined himself as R2W1 and filed his evidence by way of affidavit but the same is not signed. Since this evidence was tendered in the court, I deem it having been sworn before the court. He deposed that he had to attend a marriage on 24.1.99 and Joginder Pal had provided him car with driver on hire basis. On 24.1.99 at about 1.00 AM the car was being driven by the driver Rohit. He alongwith his son Sarbinder Pal Singh and other family members were the occupants of the said car. He stated that when their car entered into the power house crossing and had crossed one half of the crossing at that time another maruti car entered into the crossing from the left side of their car, at a high speed rashly and negligently in complete disregard to the traffic rules and on seeing the other car, 22 their driver applied brakes in order to avoid collusion, however, despite best efforts the other car touched against the left rear side of their car as a result of which their car turned upside down. Thereafter, PCR van came at the spot and with the help of others made their car to stand on its wheel. There was no negligence on part of their driver. When the police arrived he made statement that the other car had absconded and they could not read its number. DD entry was made on his statement, however, FIR was registered against them on the statement of Bhupesh Chaudhary. He further stated that on 22.4.99 he and his son were called to the police station where police obtained his signatures on blank paper and also took the driving licence of his son where Joginder Singh was also present alongwith car. He further stated that the police has falsely implicated him in connivance with Joginder Pal Singh and Bhupesh 23 Chaudhary and he had made a complaint Ex. R2W1/1to the Commissioner of Police. He also stated that he had moved an application before the concerned court for cancellation of superdari wrongly shown in his name and proved the certified copy of application Ex. R2W1/3. He stated thereafter, the court had directed the IO to seize the vehicle which is in the possession of Joginder Pal Singh and proved the certified copy of seizure memo Ex. R2W1/5. He further stated that he had obtained the extracts of the record from RTA regarding the vehicle bearing registration no DL 2CB- 4174 from the date of its purchase till 31.3.99 and the same is Ex. R2W1/7 as per which the vehicle was sold to one Rajinder Singh by Sh. N K Kaushik; the car was stated to be financed by Lyca Finance Ltd in name of N K Kaushik; no- due certificate was issued by finance company on 8.3.99 stating that they have received full dues from Sh N K 24 Kaushik. It is stated that the vehicle was seized from the possession of Joginder Pal and the FIR was registered under the orders of the court, however, he was shown as accused in this case.
25. In his cross examination, he stated that the name of his other son is Narinder Pal Singh @ Gaggu. He denied the suggestion that Gagu and Joginder were doing the business in partnership. He stated that Joginder is known to him for the last one and half year from the date of accident. He stated that his son had taken shop on rent from Joginder Pal. He further stated that the business of Rishi Motors was not being operated from the shop taken on rent by his son. He stated that he does not know whether Joginder Pal Singh was doing the business of sale and purchase of car. Rohit Kumar was aged about 24-25 years and was regular employee of Joginder Pal and he never took him anywhere 25 before 24.1.99. They had agreed to pay Rs. 400/- as hire charges and no receipt was given with regard to the payment. He further stated that on receipt of notice in present case he contacted Joginder Pal to know the whereabout of Rohit. He did not give in writing to provide the whereabout of Rohit. He denied the suggestion that he had purchased the vehicle from Joginder Pal Singh.
26. In his cross examination on behalf of petitioner he stated that they had started from Rohini at about 12.45 AM and were proceeding towards Krishna Park which was at a distance of about 13-14 KM from Sector 13, Rohini. They were five persons including the driver in the car. His son was sitting beside the driver on front seat and he was sitting behind the driver. The road was properly illuminated and they had to go straight. The other car had come from their left side and he did not see it before the accident. Their car 26 had crossed half of the crossing. He could not tell which portion of other car was damaged. He denied the suggestion that his son was driving the car at high speed. He also denied the suggestion that there was no fault on part of driver of other car. He further stated that his son and the driver had sustained injured in the accident and they were treated at Bagga Nursing Home for treatment. He stated that thereafter, he never inquired about the well being of the driver Rohit who was admitted at the said hospital. He further denied that they have introduced a fictitious person namely Rohit as driver of their car. He admitted that his son is facing trial in the present case. He has no enmity with the IO. He stated that he does not know whether he had signed any stamp paper for getting the vehicle released. He denied the suggestion that the vehicle was released to him on superdari. He also denied that he had ever furnished the 27 superdari. He admitted his signatures at point A on the superdari. He stated that he does not have any enmity with Narender Kumar Kaushik. He also stated that he does not know whether Joginder Pal stood surety for his son.
27. R3W1 is the son of respondent no 2 who also filed similar affidavit. In his cross examination, he stated that he is property dealer and knew Joginder Pal about five years prior to the date of accident. He stated that his relation with Joginder Pal is cordial and was in visiting terms with Joginder Pal who was his landlord. He stated that he was not know by the name of Gaggu and that Gaggu is his younger brother. He denied that the car was sold to his father. He could not tell the whereabout of Rohit Kumar. Rohit Kumar also sustained injuries in the accident and after the accident he and his wife had gone to Bagga Nursing Home for treatment. Since they received minor injuries, 28 they were discharged after half an hour. He further stated that no other member of the car had visited the hospital. He stated that other car had hit on the left middle portion of their car. He could not tell whether the traffic lights were working. He denied the suggestion that Rohit Kumar was not driving the vehicle.
28. Ld. Counsel for respondent no 1 submitted that respondent no 1 had sold the car to respondent no 2 and the same is corroborated by Joginder Pal. It is further stated that the vehicle was taken on superdari from the police station by Bhupinder Singh. In support of their case they cited Oriental Fire & Genl Ins Co Ltd. V. Vimal Roy 1972-ACJ 314 wherein it was held that transfer is complete upon payment of consideration and delivery of vehicle irrespective of the fact that it is registered. On the similar point is Madineni Kondaiah & Ors V. Yaseen Fatima & 29 Ors 1986 ACJ-1.
29. On the other hand Ld. Counsel for respondent no 2 and 3 submitted that respondent no 2 had moved an application before concerned court for cancellation of superdari on the basis of which the FIR was registered for offence punishable U/s. 420 IPC and moreover, mere superdari does not make one owner of the vehicle and cited Dalbagh Rai Chopra V. Kishan Lal & Ors 1970 ACJ 433 Delhi. It is also submitted that the charge sheet in the criminal case cannot be relied upon before the claim tribunal. He further submitted that in case the tribunal comes to the conclusion that the driver of both the car were negligent then it would be the case of composite negligence. In support of their contention they cited Mataji Bewa V. Hemant Kumar Jena 1994 ACJ-1303 Gujarat; Chanderwati V. Univeral Fire & General Insurance Co 1986 ACJ 633 Delhi; 30 United Insurance Co Ltd V. Mediga Thappeta Ramakka 1995 ACJ 358 Hyderabad; Ganesh V. Syed Munned Ahmad 2000 ACJ-1463; State Road Transport Corpn V. Arun 2004 ACJ- 249 and Omwati V. Mohddin 2002 ACJ-868. Further, on the point of sale of vehicle they cited judgment titled as Paulus Alias Balan V. Natarajan & Ors 1987 ACJ 853 Madras; Dr. T V Jose V. Chacko P M & Ors 2001 ACJ- 2059 SC.
30. Firstly, I shall take up the citation with respect to the transfer of vehicle. The law on the subject has been settled by Hon'ble Supreme Court in T V Jose's case where it was held that the transfer of title of vehicle takes place by the payment of consideration and delivery of the vehicle. The transferee does not remain the owner of vehicle however, if the name of the transfer continues in the record of RTO as the owner, he is liable qua third party. As regards the 31 negligence, there is no quarrel with the legal proposition that if the driver of both the car were negligent then it will be a case of composite negligence.
31. As regards the judgment on superdari is concerned, in the cited judgment it was held that merely by proving that the person took the vehicle on superdari is not sufficient to prove that the person is the owner of the vehicle. There is no quarrel on this legal proposition.
32. Now coming to the facts of the present case, the vehicle was on finance and the finance was only till 8.3.99 and thereafter, the vehicle was transferred in the record of transport authority straightaway from the name of Narender Kumar to one Rajender Singh would that prove that Bhupender Singh was not the owner?
33. Unfortunately, the transfer of vehicle in India are carried out by the brokers who do not care to inform the authorities 32 regarding the transaction entered into by them nor there is any regulation against them which make them duty bound to report the same. It not only result in defeating the provisions of law but also prejudice seriously the national security. One cannot forget the case of Parliament attack where such vehicle was purchased without verification through broker.
34. However, the fact remains that Narender Pal had handed over the vehicle alongwith blank signed sale letter to Bhupender through broker and thereby the property in vehicle passed-on to Bhupender Singh. Bhupender Singh had tried to wriggle out from the situation after harping on the fact that it never stood registered in his name with the transport authorities. The sale of movable property takes place when the property is handed over. The recording of transfer with authority is only formal expression of transfer, 33 therefore, it is established on record that respondent no 1 has sold the vehicle to respondent no 2 which vehicle was got released by him. However, in the present case in the totality of circumstances as already observed, it is established on record that the vehicle was not merely taken by respondent no 2 on superdari but also was transferred to him as stated by respondent no 1 which is also supported by the witness Joginder Pal, therefore, it is proved that respondent no 2 was the owner and the cited judgment has no application to the facts of the present case. However, in view of the law laid down in judgment of Hon'ble Supreme Court tiled as P P Mohd V. K R Rajappan 2003 ACJ 1595-SC that the person in whose name registration continues will remain liable to third person, besides the person in whose possession the vehicle is, would also be liable. Therefore, respondent no 1 cannot be absolved of his 34 liability being the registered owner who had failed to take due care to inform the registering authorities regarding the sale transaction of the vehicle.
35. Now the second aspect of the matter is as to who was the driver of the vehicle?
36. Admittedly, the police has charge-sheeted respondent no 3 who was also released on bail and is also facing trial as driver of the vehicle. He has denied that he was driving the vehicle and stated that it was being driven by one Rohit. Respondent no 2 has stated that Rohit Kumar also had sustained injuries and he was given treatment at Bagga Nursing Home which is contradicted by respondent no 3 who stated that only he and his wife had sustained injuries. The said Rohit was never attempted to be produced before the court. Joginder Pal Singh had stated that Rohit Kumar was the cleaner. Had the said Rohit received treatment at 35 Bagga Nursing Home, his treatment record could have been produced. And it belies the version of respondent no 2 and 3 that the vehicle was being driven by Rohit and not respondent no 3, therefore, I am of the opinion that the vehicle was driven by respondent no 3 and the registered owner of which was respondent no 1 and the transfer of vehicle was made to respondent no 2.
37. As regards the question of negligence, the petitioner herself does not say that there was any negligence on part of driver of other car. She has stated that there was error of judgment on part of driver of both the car. The car of the respondent no 2 and 3 was going on the outer ring road on the main road and it had crossed half of the crossing. On the other hand the car of the petitioner was being driven by her brother who also entered the main road through other road and therefore as stated their vehicle was hit by other 36 car on the portion at the rear left door and the center of the car. The car of respondent no 2 and 3 had turned upside down after hitting the car of the petitioner which suggest that the vehicle driven by respondent no 3 had applied brakes and attempted to avert the accident. On the contrary the vehicle which was hit had not taken due care to see the traffic flowing on the main road before entering into the main road. Moreover, petitioner herself has admitted that respondent no 6 was not cautious to see the traffic on main road. Therefore, it is not a case where there was error of judgment but there was negligence on part of respondent no
6.
38. As regards the death of Smt. Prem Chaudhary in the motor vehicular accident is concerned, it is submitted on behalf of respondent that death was not the direct cause of accident as the car in which the deceased was travelling was 37 hit on the rear left door and center of the car and that even after the accident, the car was in running condition as it did not stop there and had taken the injured to the hospital. The deceased was sitting in the middle of the car next to the petitioner. Therefore, the question arises as to what were the injuries sustained by the deceased and whether the death was direct consequence of the injuries sustained by her or the injuries were the direct consequence of the motor vehicular accident?
39. It is contended that the deceased was a women of weak bone and due to the jerk, injury was caused to her spine which ultimately led to her death on 24.3.99 after two months of the accident.
40. As per the post mortem report she was taken to Ganga Ram Hospital after accident and was on ventilator in the hospital with qnodiplegic limbs and following external 38 injuries were observed (i) tracheotomy hole in the lower front of middle of neck; (ii) abrasion over front of both knee(old healed); (iii)abrasion over both foot(old healed)
(iv) bedsore over lower back. As regards the spinal column the doctor has opined surgical metallic plate at C3 to C5 vertebra level and the spinal cord is compressed below the C3 to C5 vertebra and soft tissue contused. The cause of death is stated as terminal respiratory failure due to injury to the spinal cord in cervical region and could be possible in the manner alleged and the injury no 2 to 4 were ante mortem, old and healed while injury no 1 is done surgically.
41. It is common knowledge that spinal cord is a very sensitive part of the body, therefore, it is not necessary that there should be proof on record that the deceased was not having weak bone. It depends individual to individual as to how one suffers the injury when such jerk is caused. Even 39 young and healthy persons can suffer injury in such jerk whereas old person sitting beside may escape unhurt. Therefore, deceased died as a consequence of the spinal injury which could not be cured and hence, I am of the opinion that death was the direct cause of the injury which also has been opined by the doctor.
ISSUE NO 6
42. Respondent no 4 has raised the objection that the petition is not maintainable against them as the claimants are the LRs of the insured himself. It is further stated that the petitioner are the daughters of the insured and therefore are not entitled for any compensation.
43. I am not aware of any legal provision as to how the occupants of the car even if related to the insured are not entitled nor such law has been cited. Although, the son is not entitled to any compensation being tort feasor, however, 40 petitioner no 1 and 2 who are the unmarried and married daughter respectively of insured are entitled to compensation.
ISSUE NO 8
44. As per the petition the deceased was aged about 60 years and was a house wife and was expert in cooking. She was rendering her services to he house hold.
45. Admittedly, the husband of the deceased is a well-off practicing lawyer. Her son is married and independent. Petitioner no 2 is also married and is living separately. It is stated that in such eventuality what would be the dependency and how would one calculate the services rendered by the deceased? It is further stated that respondent no 5 and 6 are joint tort feasors being the owner and driver of the car therefore, they are not not entitled to claim any compensation under this head. As regards the 41 actual medical expense it is argued that since hospital bills were paid by respondent no 5 who himself is owner of the vehicle, therefore, he is not entitled to claim this amount also as the same amounts to purging of the liability on his part.
46. Petitioner has stated that the hospital bills were paid by her father. She further stated that she had paid for the other charges i.e. for the medicines purchased for the treatment of her mother. However, she denied the suggestion that she had not placed on record the bills of the medicines purchased by her as it would belie the hospital bill and stated that the hospital authorities used to give separate slips for the purchase of the medicines.
47. However, the petitioner has not proved the bills paid by her therefore they are not payable. Further, I am in agreement with the submission of counsel for respondent 42 that as the amount was paid by respondent no 5 for the hospital bills they are also not payable to him, being tort feasor.
48. As regards the value of the services rendered by the deceased towards her family is concerned, I take the value of her service as Rs. 3000/- per month as held in the judgment of Hon'ble Supreme Court titled as Lata Wadhwa & Ors V. State of Bihar & Ors AIR 2001 SC 3218. In the present case the deceased was rendering services to three persons in the family and out of these three two are the tort feasors, hence I value her service towards her daughter as Rs. 1500/- per month which annually comes to Rs. 18,000/- (1500 x 12).
49. The appropriate method of calculating the compensation is multiplier method. In the series of judgment the Hon'ble Supreme Court had held that in India the multiplier method 43 for calculation of compensation as enunciated by their Lordship Wright J. in Davies V. Powell Duffregn Associated Collieries Limited 1942 AC 601 has been held to be the appropriate method to calculate the compensation. By this method the compensation is arrived at by estimating the amount of wage which the deceased was earning, estimating as how much was required for his own living and saving. The balance will give a datum or basic figure which will generally be turned into lump sum by taking a certain number of years purchase. That sum, is to be taxed down by having due regard to the un-certainties such as the victim would be married and would ceased to be dependent and like other matters of speculation and doubt. The Hon'ble Supreme Court in the celebrated judgment of General Manager, Kerala State Road Transport Corporation V. Mrs. Susamma Thomas & Ors (SC) 1994 ACJ 1 has held 44 that the multiplier upto 16 can be given, however, the same was increased to the multiplier of 18 in UP State Road Transport Corporation & Ors V. Trilok Chandra & Ors 1996 (4) SCC 362. In both these judgments the Hon'ble Supreme Court has held that table annexed with the Motor Vehicle Act can be used as guidance to arrive at the appropriate multiplier. Further, Hon'ble Supreme Court has recently laid down in Su Pedi & Ors V. National Insurance Co Limited 1 (2005) ACC 63 SC delivered by three Judges bench that for the determination of compensation the multiplier should be taken from the second schedule of the Act 1988 and as per the age of the deceased the appropriate multiplier would be 5.
50. Accordingly, I calculate the compensation payable to the petitioner as under:
(i) Loss of income Rs. 90,000/-
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(18000 x 5)
(ii) Funeral expense Rs. 10,000/-
(iii) Loss of love & affection Rs. 10,000/-
TOTAL Rs. 1,10,000/-
RELIEF
51. Accordingly, I award a compensation of Rs. 1,10,000/- (Rupees One Lakh Ten Thousand Only) with interest at the rate of 7.5% per annum from the date of filing of the petition till its realisation.
APPORTIONMENT
52. Both the claimants are the daughters of the deceased one is married and other is unmarried and the demise of mother has caused more direct loss to the unmarried daughter therefore, petitioner no 1 Smt. Renu Chaudhary is granted a compensation of Rs. 75,000/- out of which Rs. 50,000/- alongwith proportionate interest be kept in fixed deposit in a 46 Nationalised Bank for a period of ten years, with quarterly interest payable to the petitioner, however, with no facility of loan or advance on this amount.
53. Petitioner no 2 i.e. Smt. Anita Ahuja shall get a sum of Rs. 35,000/- out of which Rs. 20,000/- alongwith proportionate interest be kept in fixed deposit in a Nationalised Bank for a period of ten years, with quarterly interest payable to the petitioner, however, with no facility of loan or advance on this amount.
54. However, the petitioner can approach this tribunal for pre-mature withdrawal of amount in case of necessity.
55. Respondent no 6 being the driver and respondent no 5 being the owner of the offending vehicle are joint tort feasors and are liable to pay the compensation. Respondent no 4 being the insurer of respondent no 5 is liable to indemnify respondent no 5.
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56. Accordingly, respondent no 4 are directed to deposit the awarded amount with interest by way of cheque in the name of petitioners within 30 days from the date of order. No order as to cost. A copy of this order be supplied free of cost to the parties. File be consigned to the record room.
ANNOUNCED IN COURT TODAY GURDEEP SINGH
the 9 of January, 2007
th
JUDGE : MACT : DELHI.