Delhi District Court
Smt. Harjeet Kaur vs Sh. Dinesh Thakur on 8 February, 2016
IN THE COURT OF MS. SANTOSH SNEHI MANN,
JUDGE, MOTOR ACCIDENT CLAIMS TRIBUNAL02, WEST DISTRICT,
TIS HAZARI COURTS, DELHI
Suit No.: 221/2014
Unique Case ID No.: 02401C0321822013
Smt. Harjeet Kaur
W/o Late Sh. Paramjeet Singh
R/o: K29, Near Shitla Mandir,
Sham Nagar, Tilak Nagar, New Delhi.
(Mother of deceased Kuldeep Singh). .......... Petitioner
Versus
1. Sh. Dinesh Thakur
S/o Sh. Murat Thakur
R/o: 8/158, Mehram Nagar,
Delhi Cantt., Delhi.
(Driver cum owner)
2. Bjaja Allainz General Insurance Company Limited
E31/32, Opposite Plaza Cinema,
Connaught Circus, New Delhi.
(Insurer) .......... Respondents
Date of Institution : 02.07.2013. Arguments heard on : 04.02.2016. Judgment pronounced on : 08.02.2016. AWARD
1. This is a claim petition filed under Section 166 & 140 of the Motor Vehicles Act, 1988 (hereinafter referred as M. V. Act) by the mother of the deceased Kuldeep Singh for compensation of Rs. 50,00,000/ (Rupees Fifty Lacs Suit No.: 221/2014 Page No. 1 of 16 Only) alongwith interest @ 18% p.a. in respect of fatal injuries suffered by the deceased Kuldeep Singh in a vehicular accident on 25.04.2013.
2. FIR No. 137/2013, under Section 279/337 IPC was registered at Police Station Moti Nagar about the accident. Matter was investigated by the police and chargesheet was filed under Section 279/304A IPC against Dinesh Thakur (Respondent No. 1), driver cum owner of offending vehicle.
3. Accident Information Report (hereinafter referred as AIR) has been filed by the Investigating Officer (hereinafter referred as IO) containing copy of the criminal proceedings including FIR and the ChargeSheet.
4. Brief facts of the vehicular accident as averred in the Claim Petition and AIR are that on 25.04.2013 at about 10.52 PM at Red light, Moti Nagar, Delhi deceased Kuldeep Singh was going on his motorcycle bearing Regn. No. DL 4SAR 4430, he was hit by a car bearing Registration No. DL 1T 6042. Consequent to the violent impact, Kuldeep Singh suffered grievous injuries and died during treatment in the hospital. Allegedly the offending vehicle was driven by Dinesh Thakur, respondent No. 1 in a rash and negligent manner. He is also the owner of the offending vehicle which was insured with respondent No. 2/Bajaj Allainz General Insurance Company Limited.
5. Petitioner is the mother of deceased Kuldeep Singh who is seeking compensation for loss of love and affection and company of his deceased son, loss of future pecuniary benefits and other damages.
6. In the written statement filed by Dinesh Thakur, drive cum owner of the offending vehicle (Respondent No. 1), it is not disputed that the offending vehicle i.e., car bearing Registration No. DLT6042 was involved in the accident. It is also not disputed that the answering respondent was driving Suit No.: 221/2014 Page No. 2 of 16 the offending vehicle at the time of the accident. However, it is claimed that the accident took place due to negligence of the deceased, who himself hit on the back side of the car while driving the motorcycle in rash and negligent manner. It is averred that the offending vehicle was duly insured with Bajaj Allainz General Insurance Company Limited, respondent No. 2.
7. In the written statement filed by the respondent No. 2 Insurance Company, it is admitted that the offending vehicle bearing registration No. DL 1T 6042 was insured with Bajaj Allainz General Insurance Company Limited at the time of the alleged accident for the period 11.12.2012 to 10.12.2013 vide Policy No. OG131101180300000599 including the date of accident. Insurance Company has not taken any statutory defence.
8. From the pleadings of the parties, contentions raised and material on record, the following issues were framed by the Ld. Predecessor vide order dated 22.07.2014:
1. Whether the deceased Kuldeep Singh suffered fatal injuries in an accident that took place on 25.04.2013 at about 10.52 pm involving a car bearing No. DL 1T 6042 driven and owned by respondent No. 1 and insured with respondent No. 2/Insurance Company? OPP
2. Whether the petitioner is entitled for compensation?
If so, to what amount and from whom?
3. Relief.
9. Petitioner Smt. Harjeet Kaur, mother of the deceased, has examined herself as PW1. No evidence is led on behalf of any of the respondents.
10. I have heard Sh. Palvinder Singh, Counsel for the petitioner and Sh. M. Awasthi, Counsel for the respondent No. 2/Insurance Company. No one Suit No.: 221/2014 Page No. 3 of 16 appeared on behalf of the respondent No. 1 to address the arguments. I have carefully perused the record.
11. My findings on the issues are as under:
Issue No. 1:
Whether the deceased Kuldeep Singh suffered fatal injuries in an accident that took place on 25.04.2013 at about 10.52 pm involving a car bearing No. DL 1T 6042 driven and owned by respondent No. 1 and insured with respondent No. 2/Insurance Company? OPP
12. In a claim petition filed by LR of the deceased for compensation under Section 166 of the M. V. Act, onus is on the petitioner to prove that the deceased suffered fatal injuries in a vehicular accident caused by the wrongful act or negligence of the driver of the offending vehicle.
13. It is a settled legal position that while deciding the petition under Section 166 of the M. V. Act, the Claims Tribunal has to decide negligence on the touch stone of preponderance of probabilities. Reference in this regard is made to the observations of the Hon'ble Supreme Court of India in Kaushnumma Begum and Others v/s New India Assurance Company Limited, 2001 ACJ 421 SC, wherein it was held that the issue of wrongful act or omission on the part of the driver of motor vehicle involved in the accident is of secondary importance and mere use or involvement of motor vehicle in causing bodily injuries or death to a human being or damage to property would make the petition maintainable under Section 166 & 140 of the M. V. Act.
14. In this context observation of the Hon'ble High Court of Delhi in National Insurance Company Limited Vs. Pushpa Rana, 2009 ACJ 287 is also Suit No.: 221/2014 Page No. 4 of 16 relevant. It was held that if the petitioner files the certified copy of the criminal record showing the completion of investigation by the police or filing of charge sheet for the offences under Section 279/304A IPC or the certified copy of the FIR in addition to copy of recovery memo and mechanical inspection report of the offending vehicle, these documents are sufficient proof to reach at the conclusion in the enquiry proceedings that the driver was negligent. Hon'ble High Court also observed that the proceedings under the Motor Vehicles Act are not akin to the proceedings in a civil suit and therefore strict rules of evidence are not required to be followed in this proceedings.
15. This aspect was also considered recently by the High Court of Delhi in a matter titled United India Insurance Company Ltd. vs. Smt. Rinki @ Rinku & Others, MAC App. No. 200/2012 decided on 23.07.2012. The Court held as under:
"The Claims Tribunal was conscious of the fact that negligence is a sine qua non to a Petition under Section 166 of the Motor Vehicles Act, 1988 (the Act). It is also true that the proceedings for grant of compensation under the Act are neither governed by the criminal procedures nor are a civil suit. A reference may be made to a judgment of the Supreme Court Bimla Devi and Ors. vs. Himachal Road Transport Corporation and Ors, (2009) 13 SC 530 where it was held as under:
"15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of any accident caused by a particular bus in a particular manner may not be possible to be done by the claimant.
Suit No.: 221/2014 Page No. 5 of 16 The claimants were merely to estab lish their case on the touchstone of preponderance of probability.
The standard of proof beyond rea sonable doubt could not have been applied."
16. Petitioner is not an eye witness. DAR and copies of criminal proceedings filed alongwith the DAR are admissible in evidence as per Rule 7 of the Motor Accidents Claims Tribunal Rules, 2008. The DAR includes copy of the chargesheet, FIR, Site Plan, Seizure Memo of the offending vehicle, Seizure Memo of the motorcycle of the petitioner/injured, Mechanical Inspection Reports of the vehicles involved in the accident and MLC of the injured Kuldeep Singh. DAR and copies of criminal proceedings filed by the IO are admissible in evidence without formal proof and are presumed to be correct till proved to be contrary.
17. As per AIR, FIR was registered on DD entry. During investigation, an eye witness Shyam Lal was met and his statement was recorded who not only stated about the manner of accident but also disclosed the number of the offending vehicle. After investigation, Dinesh Thakur (Respondent no. 1) driver of the offending vehicle was chargesheeted.
18. The criminal proceedings filed on record have not been refuted by any of the respondents. Moreover, respondent no. 1 has admitted in the written statement filed him, the involvement of car bearing no. DL1T6042 in the accident. He has also admitted that he was driving the car at the time of accident. Though, in the written statement, he has taken the plea that accident took place due to rash and negligent driving of the deceased, he Suit No.: 221/2014 Page No. 6 of 16 has not substantiated his defence. For the reasons best known to him, he has not entered the witness box to depose on the lines of defence taken.
19. Copy of the criminal proceedings which include the site plan and mechanical inspection reports of the vehicles involved in the accident support the chargesheet and clearly establish rashness and negligence on the part of Dinesh Thakur (Respondent no. 1) driver of the offending vehicle.
20. As per the MLC of deceased Kuldeep Singh prepared in Deen Dayal Upadhyay hospital, he was brought to casualty of hospital with the alleged history of road traffic accident in an unconscious state with clear lacerated wound on the right side of forehead besides abrasions over other body parts. As per the postmortem report, he died during treatment on 05.05.2013 and cause of death was 'coma subsequent to head injury suffered in a road traffic accident'.
21. On the basis of material on record, above observations and discussion, I hold that the accident involving car bearing Regn. No. DL1T6042, took place due to the negligence of its driver Dinesh Kumar (Respondent no. 1) and further that deceased Kuldeep Singh died of injuries suffered in this accident.
Issue No. 1 is decided in favour of the petitioner and against the respondents.
22. Finding on Issue No. 2 :
Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
Since, Issue No. 1 is decided in favour of the petitioner Smt. Harjeet Kaur, Suit No.: 221/2014 Page No. 7 of 16 she is entitled for compensation.
23. In Sarla Verma (Smt) and Others vs. Delhi Transport Corporation and Another, (2009) 6 Supreme Court Cases 121, Hon'ble Supreme Court of India laid down general principals for computation of compensation in death cases. The relevant paras of the judgment are reproduced as under:
18. Basically only three facts need to be established by the claimants for assessing compensation in the case of death:
(a) age of the deceased;
(b) income of the deceased; and
(c) the number of dependents.
This issues to be determined by the Tribunal to arrive at the loss of dependency are:
1. additions/deductions to be made for arriving at the income;
2. the deduction to be made towards the personal living expenses of the deceased; and
3. the multiplier to be applied with reference to the age of the deceased.
If these determinations are standardized, there will be uniformity and consistency in the decisions. There will be lesser need for detailed evidence. It will also be easier for the Insurance Companies to settle accident claims without delay.
19. To have uniformity and consistency, the Tribunals should determine compensation in cases of death, by the following wellsettled steps:
Step1 (Ascertaining the multiplicand) The income of the deceased per annum should be determined. Out of the said income a deduction should be made in regard to the amount which the deceased would have spent on himself by way of personal and living expenses. The balance, which is considered to be the contribution to the dependent family, constitutes the multiplicand.Suit No.: 221/2014 Page No. 8 of 16
Step2 (Ascertaining the multiplier) Having regard to the age of the deceased and period of active career, the appropriate multiplier should be selected. This does not mean ascertaining the number of years he would have lived or worked but for the accident. Having regard to several imponderables in life and economic factors, a table of multiplier with reference to the age has been identified by this Court. The multiplier should be chosen from the said table with reference to the age of the deceased.
Step3 (Actual Calculation) The annual contribution to the family (multiplicand) when multiplied by such multiplier gives the 'loss of dependency' to the family.
Thereafter, a conventional amount in the range of Rs. 5,000/ to Rs. 10,000/ may be added as loss of estates. Where the deceased is survived by his widow, another conventional amount in the range of Rs. 5,000/ to Rs. 10,000/ should be added under the head of loss of consortium. But no amount is to be awarded under the head of pain, suffering or hardship caused to the legal heirs of the deceased.
The funeral expenses, cost of transportation of the body (if incurred) and the cost of any medical treatment of the deceased before death (if incurred) should also be added.
Age of the deceased
24. Age of deceased is mentioned in the postmortem report as 38 years. IO has also filed the photocopy of Voter Icard of the deceased according to which he was 30 years old as on 01.01.2005. There is no other document to indicate the age of deceased. Therefore, age of deceased is ascertained on the basis of age mentioned in the Voter Icard. Accident took place on 25.04.2013. Accordingly, the age of the deceased was 38 years on the date Suit No.: 221/2014 Page No. 9 of 16 of accident.
Income of the deceased:
25. PW1 Smt. Harjeet Kaur has deposed in the affidavit (Ex. PW1/A) that at the time of accident his son was doing the business and was earning Rs.
2,35,000/ per annum. However, no evidence has been brought on record as proof of the claim. In the cross examination, PW1 stated that her son was 12th class pass and was filing Income Tax Return but no evidence has come on record in proof of these claims.
26. In the above facts and circumstances, monthly income of the deceased can been assessed on the basis of minimum wages rate of an unskilled worker prevailing in Delhi at the time of accident. Accident took place on 25.04.2013 when the minimum wages rate of an unskilled worker in Delhi was Rs. 7722/.
Number of dependents:
27. PW1 Smt. Harjeet Kaur in her affidavit (Ex. PW1/A) has deposed that deceased was a divorcee and has filed the copy of decree of divorce as Ex.
PW1/R31. According to her, deceased did not have any child from the marriage. Though, in the cross examination recorded on 07.04.2015, she stated that she is looking after the son of deceased, but subsequently, PW1 Smt. Harjeet Kaur filed another affidavit (Ex. PW1/B) and testified on 14.09.2015 that she was not able to understand the question put to her by the Counsel and deposed that her grand son Wariyam Singh who is living with her is not the son of deceased Kuldeep Singh but is the son of her another son Vijay Pal Singh. She has filed on record the copy of identity card of her grand son Wariyam Singh as Ex. PW1/2 where the father name Suit No.: 221/2014 Page No. 10 of 16 of Wariyam Singh is mentioned as Vijay Pal Singh.
28. In the light of above facts, for the purpose of present claim petition, the petitioner is the sole surviving dependent LR of the deceased who was a divorcee at the time of death.
Addition in the income towards future prospects:
29. It was argued on behalf of the petitioner that addition be made in the income of the deceased considering the future prospects. This claim has been contested by the counsel for the Insurance Company on the ground that since no evidence has been led to show the possibility of addition in the income of the deceased in future, no addition can be given while calculating the compensation.
30. As far as the addition towards the future prospects is concerned, the issue was considered recently by the Hon'ble High Court of Delhi in MAC. Appeal No. 622/2014 (The Oriental Insurance Co. Ltd. Vs. Lekharaj @ Lekh Raj & Ors.) decided on 27.01.2016. Relevant paras of the judgment are re produced for reference:
"4. In the case reported as Sarla Verma & Ors. Vs. Delhi Transport Corpora tion & Anr., (2009) 6 SCC 121, Supreme Court interalia, ruled that the element of future prospects of increase in income will not be granted in cases where the deceased was "self em ployed" or was working on a "fixed salary". Though this view was affirmed by a bench of three Hon'ble Judges in Resham Kumari & Ors. Vs. Madan Mohan & Anr. (2013) 9 SCC 65, on ac count of divergence of views, as arising from the ruling in Rajesh & Ors. Vs. Ra Suit No.: 221/2014 Page No. 11 of 16 jbir & Ors., (2013) 9 SCC 54, the issue was later referred to a larger bench, in teralia, by order dated 02.07.2014 in Na tional Insurance Company Ltd. Vs. Pushpa & Ors., (2015) 9 SCC 166.
5. Against the above backdrop, by judg ment dated 22.01.2016 passed in MAC Appeal No. 956/2012 Sunil Kumar Vs. Pyar Mohd & Ors., this court has found it proper to follow the view taken earlier by a learned single judge in MAC Ap peal No. 189/2014 (HDFC Ergo General Insurance Co. Ltd. Vs. Smt. Lalta Devi & Ors.) decided on 12.01.2015, present ly taking the decision in Reshma Ku mari (Supra) as the binding precedent, till such time the law on the subject of future prospects for those who are "self employed" or engaged in gainful em ployment at a "fixed salary" is clarified by a larger bench of the Supreme Court.
This applies to the matter at hand be cause the claimant here pleaded about gainful employment at a fixed salary and has not led any evidence showing the salary was subject to any periodic in crease."
31. In view of the settled legal position as discussed above, no addition can be made in the monthly income of the deceased Kuldeep Singh towards future prospects, because there is no proof of employment. Deduction towards personal living expenses of the deceased:
32. Deceased Kuldeep Singh was divorcee at the time of the accident. There is no child from the marriage. His mother is the sole surviving dependent/LR. Therefore, the criteria laid down in Sarla Verma (Smt) and Others vs. Suit No.: 221/2014 Page No. 12 of 16 Delhi Transport Corporation and Another; (2009) 6 Supreme Court Cases 121, for making deductions towards personal expenses in case of death of bachelor would be applicable in this case. Accordingly, ½ (half) of the income of the deceased would be deducted towards personal and living expenses. Therefore, monthly contribution to the family by deceased would be Rs. 3,861/ (½ of Rs. 7,722/) and the annual contribution to the dependent LR would be Rs. 46,332/ (Rs. 3,861/ X12), which is ascertained as multiplicand.
Selection of multiplier:
33. Since the deceased was a issueless divorcee, in view of Vijay Laxmi & Anr. vs. Binod Kumar Yadav & Ors. ILR (2012) 6 DEL 447 and HDFC Ergo General Insurance Company Limited vs. Smt. Lalta Devi & Others (Supra), the multiplier applicable to calculate total loss of dependency shall be as per the age of the mother of the deceased.
34. IO has filed Aadhar Card of the petitioner in AIR which shows the year of her birth as 1952. Accident took place in the year 2013. Accordingly, age of the petitioner was 61 years at the time of the accident and multiplier applicable would be 7 as per the criteria laid down in Sarla Verma (Smt) and Others (Supra).
Loss of financial dependency:
35. On the basis of facts of this case and the material on record, total loss of financial dependency of the petitioner would be Rs. 3,24,324/ (Rupees Three Lacs Twenty Four Thousand Three Hundred Twenty Four Only) {Rs. 46,332/ (multiplicand) X 7 (multiplier)}.
Compensation under nonpecuniary heads:
Suit No.: 221/2014 Page No. 13 of 16
36. In view of the judgment in Rajesh & Others v. Rajbir Singh & Others (2013) 9 SCC 54, petitioner is also entitled to a sum of Rs. 1,00,000/ (Rupees One Lac Only) towards loss of love and affection, Rs. 25,000/ (Rupees Twenty Five Thousand Only) towards funeral expenses and Rs. 10,000/ (Rupees Ten Thousand Only) towards loss of estate. Computation of compensation:
37. The total compensation is assessed as under:
Sl. No. Heads Amount
1. Loss of financial dependency 3,24,324.00
2. Loss of Love and Affection 1,00,000.00
3. Funeral Expenses 25,000.00
4. Loss of Estate 10,000.00
Total 4,59,324.00
38. Accordingly, total compensation is assessed as Rs. 4,59,324/ (Rupees Four Lacs Fifty Nine Thousand Three Hundred Twenty Four Only). Liability:
39. Respondent No 1 Dinesh Thakur is liable to pay compensation, being the drivercumowner of the offending vehicle, as the accident took place due to his rash and negligent conduct.
40. It is not disputed by the respondents that the offending vehicle i.e. car bearing Registration No. DL1T6042 was duly insured with Bajaj Allainz General Insurance Company Limited, respondent No. 2 at the time of the accident vide Policy No. OG131101180300000599 for the period from 11.12.2012 to 10.12.2013, which covers the date of accident. There is no statutory defence pleaded. Therefore, all the respondents are jointly and Suit No.: 221/2014 Page No. 14 of 16 severally liable to pay the compensation to the petitioner. However, since the offending vehicle was duly insured to cover the third party risk, respondent No. 2/Insurance Company is under the statutory liability to pay the compensation to the petitioner.
Relief:
41. On the basis of findings on Issues No. 1 & 2, I award an amount of Rs.
4,59,324/ (Rupees Four Lacs Fifty Nine Thousand Three Hundred Twenty Four Only) as compensation to the petitioner with interest @ 9% p.a. from the date of filing of the petition i.e. 02.07.2013 till its realisation. Amount of Interim Award, if any paid, be deducted from the compensation amount.
Mode of payment and disbursement:
42. Respondent No. 2/Insurance Company shall deposit the award amount within 30 days from the date of Award in the State Bank of India, Tis Hazari Branch, Delhi in the name of the petitioner under intimation to the petitioner and the Tribunal. In default of payment within the prescribed period, respondent No. 2/Insurance Company shall be liable to pay interest @ 12% p.a. for the period of delay till its realisation.
43. While making the deposit, Insurance Company shall mention the particulars of this case, name of the Tribunal and the date of decision on the back side of the cheque. Insurance Company shall also file copy of the award attested by its responsible officer in the bank at the time of deposit. Insurance Company is further directed to place on record proof of deposit of the award amount, proof of delivery of notice to the petitioner in respect of deposit of the award amount and complete details in respect of calculation of interest Suit No.: 221/2014 Page No. 15 of 16 etc. in the Tribunal within 30 days with effect from today.
44.In order to avoid the money being frittered away, 50% of the award amount shall be kept in two (02) FDRs of equal amount, one for a period of five (05) years and other for a period of seven (07) years. No loan or advance shall be allowed against these deposits. However, petitioner can withdraw the quarterly interest from these deposits.
45. Petitioner shall open an account in State Bank of India, Tis Hazari Branch, Delhi. Manager of the Bank shall comply and release the award amount to the petitioner in terms of the Award.
46. Copy of the Award be given to the parties free of cost.
47. Nazir is directed to prepare a separate file for compliance report and put up the same on 21.03.2016.
48. File be consigned to Record Room.
Announced in the open Court (Santosh Snehi Mann) on 08.02.2016. Judge, Motor Accident Claims Tribunal02, West District, Tis Hazari Courts, Delhi.
Suit No.: 221/2014 Page No. 16 of 16