Delhi District Court
Smt. Kalawati vs Bijender Kumar on 31 March, 2015
IN THE COURT OF MS. KIRAN BANSAL
P.O. MOTOR ACCIDENT CLAIMS TRIBUNAL:
NORTH-EAST DISTRICT : KKD COURTS : DELHI
MACT No. 300/12
Unique Case Identification No:- 02402C0238982012
1. Smt. Kalawati
W/o Late Sh. Sain Singh aged 58 years (Widow)
2. Ms. Kanti Rawat
D/o Late Sh. Sain Singh aged 35 years (Disabled Daughter)
3. Man Mohan Rawat
S/o Late Sh. Sain Singh aged 29 years (Son)
All R/o H.No. C-33, Srijan Vihar,
Nayay Khand -II, Opposite Aditya Mall,
Indira Puram, Ghaziabad (U.P.)
4. Ms. Mamta Negi
W/o Manoj Pal Singh Negi aged 32 years (Daughter)
D/o Late Sh. Sain Singh Rawat
R/o 952, Janta Flats, Nand Nagri,
Delhi.
5. Smt. Veena Rawat
W/o Vijender Singh aged 41 years
D/o Late Sh. Sain Singh Rawat
R/o H. NO. 9, Block G, Ansari Nagar (East)
Delhi - 110029.
6. Smt. Reena Bisht
W/o Sh. Vinod Bisht aged 38 years
D/o Late Sh. Sain Singh Rawat
R/o House No. 2C / 566,
MIG Duplex Vasundhara,
Ghaziabad (U.P) ....... Petitioners
Versus
1. Bijender Kumar
S/o Sh. Salek Chand
R/o Village Varnawa,
Police Station Binooli,
District Baghpat (U.P.) (Driver)
2. Akram
S/o Sh. Ajam Ali
R/o H.No. 23, Village Nauhar,
Tehsil Nauhar,
Kiran Bansal
P.OMACT (NorthEast),
MACT No. 300/12 Page 1/9
District Hanuman Garh,
Rajasthan (Owner)
3. Chola Mandlam M.S. General Insurance Co. Ltd.
NO. 2nd Floor, "Dare House"
No. 2 NSC, Bose Road,
Chennai - 600001 (Insurance Co.)
......... Respondents
i) Date of Institution of Claim Petition : 24/08/2012
ii) Date when fixed for Orders : 31/03/2015
iii) Date of Decision : 31/03/2015 APPLICATION U/S 166 & 140 M.V. ACT 1988 FOR GRANT OF COMPENSATION AWARD
1. LRs of deceased Sain Singh Rawat have filed the present claim petition under Sec. 166 & 140 of MV Act stating that on 18/01/2012 at about 10-11 PM deceased had gone to attend the marriage of one of his relative at Vinod Nagar and when he was returning back to his home at Indirapuram and reached in front of U.P. Gate Police Chowki then a truck bearing no. RJ 10 G 1958 which was being driven by its driver in a very high speed, rash and negligent manner, hit the deceased with a great force and as a result of which the deceased fell down on the road and sustained grievous injuries. Deceased was immediately taken to Crossly Hospital where he died after two days treatment. FIR bearing no. 96/12 was registered at PS Indirapuram, Ghaziabad in this respect.
2. Summons of the claim petition were issued to the respondents. Joint WS was filed on behalf of respondent no. 1 and 2 stating that no accident took place due to negligence of respondent no. 1 or with the vehicle of respondent no. 2. Respondent no. 3 Chola Mandlam M.S. General Insurance Co. Ltd. has also filed WS. They have admitted that the vehicle bearing No. RJ 10G 1958 (Truck) was insured with them in the name of Mr. Gurcharan Singh for the period from Kiran Bansal P.OMACT (NorthEast), MACT No. 300/12 Page 2/9 06/02/2011 to 05/02/2012 bearing Insurance Policy No. 3379/00532573/000/00.
3. After completion of the pleadings, following issues were framed :
1) Whether deceased Sain Singh Rawat died on account of injuries sustained in accident taking place on 18/01/2012 at about 10:00-11:00 pm at UP Gate in front of Police Chowki, Indira Puram, UP within the jurisdiction of PS Indira Puram, Sector 7, Vasundhara, Ghaziabad, U.P. due to rash and negligent driving of vehicle bearing no. R-J 10G 1958 by respondent no.1 ? OPP
2) Whether petitioners are entitled to compensation ? If so, to what amount and from whom?
3) Relief
4. I have heard the counsels for both the parties and gone through the entire evidence on record carefully. My issue wise findings are as below :
5. ISSUE NO. 1Whether deceased Sain Singh Rawat died on account of injuries sustained in accident taking place on 18/01/2012 at about 10:00-11:00 pm at UP Gate in front of Police Chowki, Indira Puram, UP within the jurisdiction of PS Indira Puram, Sector 7, Vasundhara, Ghaziabad, U.P. due to rash and negligent driving of vehicle bearing no. R-J 10G 1958 by respondent no.1 ? OPP Petitioner has examined Sh. Jagat Singh as PW1, an eye witness and he deposed about the facts of the case. He was cross-examined by ld. Counsel for respondents and during cross-examination nothing has come forward in his testimony to disbelieve the version of PW1. Petitioner no. 3 Sh. Man Mohan Rawat has examined himself as PW2. No evidence has been led on behalf of respondents on this aspect. Respondent driver has not stepped into the witness box to state as to how accident occurred and to depose that he was not at fault and was not driving the vehicle in rash and negligent manner. Certified copy of Criminal case record is also Kiran Bansal P.OMACT (NorthEast), MACT No. 300/12 Page 3/9 filed in the present claim petition.
In a judgment reported as National Insurance Company Ltd. Vs. Pushpa Rana and other, 2009 ACJ 287 the Hon'ble High Court of Delhi has held that certified copies of criminal court record, such as FIR, recovery memo and mechanical inspection report of vehicle are sufficient proof to reach the conclusion that driver was negligent. Proceedings under M. V. Act are not akin to proceedings in a civil suit and hence, strict rules of evidence are not required to be followed in this regard.
In view of the statement of PW1 and criminal case record, it is proved that the deceased Sain Singh Rawat sustained fatal injuries in the accident which occurred on 18/01/2012 due to rash and negligent driving of offending vehicle bearing no. RJ 10 G 1958 driven by its driver i.e Respondent no. 1. The issue is decided accordingly.6. ISSUE NO. 2
Whether petitioners are entitled to compensation ? If so, to what amount and from whom?
Now coming to the fact as to what is the amount to which the petitioners are entitled as compensation. As per the PW2 the age of his father was 63 years at the time of accident. As per the postmortem report the age of the deceased was 65 years. As per the CGHS Card, a photocopy of which is available on record, the date of birth of deceased was 06.04.1998 and therefore, as per dictum laid down in Sarla Verma Vs. DTC , multiplier to be applied is 07.
It is stated by petitioner no. 2 son of the deceased that his father retired from Ministry of Health and Family Welfare and at the time of accident was getting pension for a sum of Rs. 14,000/- per month. He has also deposed on oath that his Kiran Bansal P.OMACT (NorthEast), MACT No. 300/12 Page 4/9 mother is house wife and is getting pension of Rs. 16,000/- per month. He has also stated that his mother and sister i.e petitioner no. 2 who is mentally retarded were dependent upon his father.
Ld. Counsel for the insurance has argued that as the widow and daughter of deceased were still receiving pension, there was no financial loss to the family of the deceased. On the other hand Ld. Counsel for the petitioner has relied upon the judgement titled as Ram Rati and Others Vs. New India Assurance Co. Ltd. and others, 2011 ACJ 2579 of Hon'ble High Court of Delhi in which it was held that family pension payable to widow of deceased is not deductable while computing the compensation. In view of the judgement in Ram Rati's case, I am not inclined to deduct the amount of pension received by the widow while calculating the loss of dependency.
It is also argued that as the deceased was married and all his children were major, ½ be deducted towards personal expenses. In this context reference may be had to the judgment in the case of Kamlesh Mittal & Ors. vs. Oriental Insurance Co. Ltd. & Ors. in MAC. APP.283/2010 dated 03.09.2014 where the Hon'ble Delhi High Court has held as follows:-
"14. Hence, the Supreme Court has laid down a standard formula/guideline to ensure consistency in the Awards of various tribunals. However, a perusal of the guidelines laid down shows that a situation like this has not been dealt with namely, where the deceased is married and has children who are all settled and the widow is the only person who could be considered as dependent. I may, however, note that the Supreme Court noted that in case of a bachelor where deduction of 50% was stated, the Court noted that this was because it was assumed that a bachelor would tend to spend more on himself. Further there is a possibility of his getting married in a short time in Kiran Bansal P.OMACT (NorthEast), MACT No. 300/12 Page 5/9 which event the contribution to the parents/siblings was likely to be cut drastically. 15. In my opinion, in a situation like the present one, the situation of the deceased cannot be treated at par with a bachelor. There is merit in the said submission of learned counsel for the appellant that a man of 54 years of age who is professionally well qualified with two settled children and a wife would not be spending 50% of his wages for personal living expenses. He would be inclined to accumulate wealth for his old age days and also for the benefit of his wife and children. One cannot also ignore that being a father of a married daughter and a son, who is likely to get married he would have spent on the marriage of the son, on his grand children after they were born. These are expenses which a man who has grown to that age and who is well settled would normally be incurring. These expenses cannot be ignored. Keeping in view these facts and circumstances in my opinion, the appropriate deduction to be made from the income of the deceased in the facts and circumstances of this case was 1/3rd and not 50% as done by the tribunal. Hence, 1/3rd is only to be deducted from personal expenses."
7. Similarly, in MAC.APP. 288/2011 titled Smt.Shakuntala vs. Sh. Naresh Kumar decided on 16.05.2011, by Hon'ble Delhi High Court it is held as follows:-
"6. I am inclined to agree with the aforesaid contention of Mr.Mannie for the reasons that though the deceased left behind his widow and two unmarried daughters who were wholly dependent upon him, the deceased also left behind him two married daughters and a son, who though may not have been dependent on him stricto senso, nevertheless formed part of his family. The married daughters of the deceased have been awarded only a sum of Rs.10,000/- each while the son of the deceased has been awarded Rs.15,000/- only by the Claims Kiran Bansal P.OMACT (NorthEast), MACT No. 300/12 Page 6/9 Tribunal. 7. It is well known that in Indian Society married daughters are also the beneficiaries of various gifts and cash amounts from the father from time to time. The appellant No.4, who was the son of the deceased, was also unmarried and in due course of time the father would have expended some amount of money on his marriage and would have supported him in times of need. Accordingly, in my view, the deduction of one-fourth of the income of the deceased ought to have been made by the Claims Tribunal while calculating the loss of dependency of the appellants."
PW2 has deposed that his father was getting a pension of 14,000/-. As there are 2 dependents and in view of the above case law, 1/3rd is deducted for personal expenses. Therefore, the total loss of dependency would be calculated as follows :
Rs. 14,000/- X 12 X 7 (Multiplier)= 11,76,000/- (Annual Income) Rs. 11,76,000/- - Rs. 392000/- (1/3rd personal expenses) = Rs. 7,84,000/-
Besides this, petitioners are also entitled for compensation under the following heads:-
Love and affection Rs. 100,000/-
Loss of Consortium Rs. 100,000/-
Loss of estate Rs. 10,000/-
Funeral expenses Rs. 25,000/-
Total Rs.2,35,000/-
In addition Rs. 20,000/- is awarded as litigation cost. Thus, the total compensation would amount to Rs. 10,39,000/-.
8. Liability Respondent no.3 is the insurance company which admittedly has issued a valid insurance policy to the offending vehicle. Respondent no.3 being insurance Kiran Bansal P.OMACT (NorthEast), MACT No. 300/12 Page 7/9 company in its written statement has admitted that there is valid insurance policy issued from 06/02/2011 to 05/02/2012 bearing Insurance Policy No. 3379/00532573/000/00. There is no evidence on behalf of respondent no.3 to show that there was any violation of the rules and terms of policy by the respondents no.1 & 2. Hence, I am of the opinion that respondent no.3 being insurance company is liable to pay the compensation on behalf of respondents no.1 & 2.
9. Relief Award is passed directing Respondent no. 3, M/s Chola Mandlam M.S. General Insurance Co. Ltd. to pay to the claimants/petitioners a sum of Rs. 10,39,000/- (including interim compensation, if any) by way of depositing cross cheques in favour of petitioners in proportions of 30:30:10:10:10:10 along with interest @ 9% per annum from the date of filing of the claim petition (i.e. 24/08/2012). If award is not complied within 30 days, respondent no. 3 shall pay penal interest @ 12% p.a. for the default period. Upon deposit of award amount, cheques be deposited in any nationalized bank and the bank manager of said bank is directed to prepare FDRs of the 50% of the award amount as per the shares of petitioners in their respective names for a period of five years with monthly interest to be credited in their saving bank accounts and the remaining amount be released to the petitioners. Branch Manager of the Bank shall also comply with following directions :-
(a) Withdrawal from the aforesaid account shall be permitted to the petitioners after due verification and the bank shall issue photo identity card of petitioners to facilitate identity.
(b) No cheque book be issued to the petitioners without the permission of the court.
(c) The original fixed deposit receipts shall be retained by the bank in the safe custody. However, the original pass book shall be given to the petitioners along with photocopy of the FDRs.
Kiran Bansal P.OMACT (NorthEast), MACT No. 300/12 Page 8/9
(d) The original fixed deposit receipt shall be handed over to the petitioners on the expiry of the period of the FDRs.
(e) No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the permission of the court.
(f) The petitioners shall furnish all the relevant documents for opening of the saving bank account and fixed deposit account to the Branch Manager, any nationalized bank.
22. Put up for compliance on 01.05.2015.
Attested copies of the award be furnished to the concerned parties from court for compliance.
Pronounced in Open Court on (KIRAN BANSAL)
31.03.2015 P.O. MACT(North-East)
KKD Delhi
Kiran Bansal
P.OMACT (NorthEast),
MACT No. 300/12 Page 9/9
Kiran Bansal
P.OMACT (NorthEast),
MACT No. 300/12 Page 10/9