Delhi District Court
Smt. Neera Shukla vs Shri Yogesh Kumar on 16 May, 2014
IN THE COURT OF MS. GEETANJLI GOEL, PO: MOTOR ACCIDENT
CLAIMS TRIBUNAL2, PATIALA HOUSE COURTS, NEW DELHI
Suit No.229/14
Date of Institution:06.05.2009
IN THE MATTER OF:
1. Smt. Neera Shukla
W/o Late Shri Arvind Kumar Shukla
R/o Flat No.8175, Sector D8
Vasant Kunj
New Delhi110070.
2. Master Adesh Kumar Shukla
(Through his natural guardian
Mother Mrs. Neera Shukla as
he is minor)
S/o Late Shri Arvind Kumar Shukla
R/o Flat No.8175, Sector D8
Vasant Kunj
New Delhi70. ...Petitioners
Versus
1. Shri Yogesh Kumar
S/o Shri Harish Chandra
R/o Village + PO Rampura Mandi
PS Pilukhwa
District Ghaziabad (UP)
2. Shri Mukesh
S/o Shri Harish Chandra
R/o Village Pilkhuwa
Distt. Ghaziabad (U.P.)
Neera Shukla Vs. Yogesh Kumar & Ors. Page No. 1 of 68
Suit No.229/14
Yogesh Kumar v Neera Shukla & Ors.
Suit No. 226/14
3. IFFCO Tokio General Insurance Co. Ltd.
Commerce House, 7 Race Course
Indore452001, M.P.
Through its Manager / Any other concerned Official
(Insurer of the offending vehicle)
4. TATA AIG General Insurance Co. Ltd. (deleted vide order dated 17.9.2011)
Regd. Office: Peninsula Corporate Park
Nicholas Piramal Tower
9th Floor, Ganpatrao Kadam Marg
Lower Parel, Mumbai400013.
(Insurer of the Vehicle of the deceased) ....Respondents
5. Shri Adya Prasad Shukla S/o Shri Suresh Dutta Shukla R/o H. No. 11/94 Vikas Nagar Lucknow (U.P.)
6. Smt. Subhawati Shukla W/o Shri Adya Prasad Shukla R/o H. No. 11/94 Vikas Nagar Lucknow (U.P.) ...Proforma Respondents Suit No.226/14 Date of Institution:09.04.2012 IN THE MATTER OF:
Shri Yogesh Kumar S/o Shri Harish Chandra R/o Village Rampura Mandi PO Rampura Mandi PS Pilukhwa District Ghaziabad (UP) ....Petitioner Neera Shukla Vs. Yogesh Kumar & Ors. Page No. 2 of 68 Suit No.229/14 Yogesh Kumar v Neera Shukla & Ors.Suit No. 226/14
Versus
1. Smt. Neera Shukla W/o Late Shri Arvind Kumar Shukla R/o Flat No.8175, Sector D8 Vasant Kunj New Delhi110070.
2. TATA AIG General Insurance Co. Ltd.
Regd. Office: Peninsula Corporate Park Nicholas Piramal Tower 9th Floor, Ganpatrao Kadam Marg Lower Parel, Mumbai400013.
(Insurer of the Offending Vehicle)
3. IFFCO Tokio General Insurance Co. Ltd.
Commerce House, 7 Race Course Indore452001, M.P. Through its Manager / Any other concerned Official (Insurer of the vehicle of the petitioner) ...Respondents Final Arguments heard : 02.05.2014 Award reserved for : 16.05.2014 Date of Award : 16.05.2014 AWARD
1. Vide this judgmentcumaward, I proceed to decide Suits No.229/14 and 226/14 which arise out of the same accident that took place on 30.7.2008 and are in the nature of crosscases. Both are petitions filed u/s 166 and 140 of Neera Shukla Vs. Yogesh Kumar & Ors. Page No. 3 of 68 Suit No.229/14 Yogesh Kumar v Neera Shukla & Ors.
Suit No. 226/14Motor Vehicles Act, 1988, as amended uptodate (hereinafter referred to as the Act) for grant of compensation in a road accident.
Suit No.229/14
2. It is the case of the petitioners that on 30.07.2008, the deceased Arvind Kumar Shukla being the son of respondents No.5 and 6, the husband of the petitioner No.1 and the father of the petitioner No.2, was hit by the driver of the offending vehicle i.e. motorcycle bearing No.UP 14AK 2138 make TVS Star while he was driving his said offending vehicle with rash and gross negligence. It is averred that consequently the deceased suffered fatal injuries to his body which finally resulted into the death of Shri Arvind Kumar Shukla due to the said road traffic accident (RTA) caused by the respondent No.1. One pillion rider on the said offending vehicle was also injured due to the rash and negligent driving of the offending driver / respondent No.1. It is averred that when the deceased was hit by the offending vehicle driven rashly and negligently by the offending driver / respondent No.1 the deceased was examining the technical snag developed in his vehicle Maruti 800 bearing No.DL 9CG 4280 at the site of occurrence by stopping / parking his vehicle at the proper place i.e. by the correct side of the road. It is averred that the deceased was coming from Meerut to Delhi by driving his Maruti car, owned by him, along with his two acquaintances / relatives namely Kushal Dev and Ajay Mishra (being his brother in law). The two cotravellers with the deceased Neera Shukla Vs. Yogesh Kumar & Ors. Page No. 4 of 68 Suit No.229/14 Yogesh Kumar v Neera Shukla & Ors.
Suit No. 226/14were standing away from the vehicle of the deceased which was being technically examined by the deceased at that time. So they could witness the rash and negligent driving of the offending driver / respondent No.1 which finally resulted into the death of the injured i.e. Arvind Kumar Shukla. It is averred that even the vehicle of the deceased was damaged due to the rash and negligent driving of the offending vehicle by the offending driver as his offending vehicle hit not only the deceased but also it hit the stationary car of the deceased in the right side.
3. It is averred that on the occurrence of the unfortunate accident caused to the deceased by the offender respondent No.1 the eye witness Ajay Mishra informed Mr. Narender Prasad Shukla i.e. brother of the deceased Arvind Kumar Shukla, who rushed to the site of occurrence. On reaching there Mr. Narender Prasad Shukla S/o Shri Adya Prasad Shukla R/o C69, Nanakpura South Moti Bagh, New Delhi, informed the police and got his statement recorded in the form of Tehrir. When the local police of PS Pilukhwa Dist Ghaziabad, U.P. was informed about the said road traffic accident caused by the rash and negligent driving of the offending vehicle the police reached at the place of occurrence / accident and recorded the statement of Narender Prasad Shukla. Thereafter the police prepared Tehrir on the basis of which an FIR bearing No.289/2008 dated 30.07.2008 under Section 279/304A/427 IPC was registered at PS Pilukhwa Dist. Ghaziabad, U.P. after receiving the post mortem report of the deceased from the competent authority. Thereafter the Neera Shukla Vs. Yogesh Kumar & Ors. Page No. 5 of 68 Suit No.229/14 Yogesh Kumar v Neera Shukla & Ors.
Suit No. 226/14police performed its duties and prepared relevant documents during its investigation. It is averred that on the date of the accident the offending vehicle was insured by the insurer respondent No.3 vide cover note No. 37017340 and the vehicle driven by the deceased was insured by the insurer respondent No.4 vide cover note / policy No.0100237108.
4. It is averred that due to the unfortunate accident the life of the deceased was cut short suddenly and it created void in the life of the petitioners. The petitioners No.1 and 2 had lost their sole bread winner who were dependant on the sole income of the deceased. It is averred that due to the sudden / untimely demise of the deceased, the petitioners No.1 and 2 were dependant for their survival on their other relatives, as petitioners No.1 and 2 had suffered total loss of dependence and loss of love and affection along with other nonpecuniary losses. It is averred that if the deceased had not met with the fatal accident he would have survived for not less than 75 years as per his family record where longevity exists. Simultaneously there were brilliant future prospects in the life / career of the deceased by virtue of his being endowed with special qualifications in the subject of Economics due to which he was promoted to the post of Assistant Professor in professional institute like IMT, Ghaziabad, as Deputy Director in CII for Economic Policy and Research and as an Associate Professor Economic and Business Policy in Fore School of Management, Delhi at a young age of 38 years. It is stated that as per the matriculation certificate of the deceased, the date of birth of the deceased was Neera Shukla Vs. Yogesh Kumar & Ors. Page No. 6 of 68 Suit No.229/14 Yogesh Kumar v Neera Shukla & Ors.
Suit No. 226/1401.10.1970 thereby at the time of his demise he was 38 years old. It is averred that throughout his academic career the deceased had received various scholarships, awards, prizes etc and even after his retirement he had the prospect of being appointed as financial advisor in various sectors of not only the government but also in Multinational companies where he would have earned lakhs of rupees per month. It is averred that the deceased had passed the UGC Test for being eligible to be appointed as Lecturer in Colleges/ Institutes. The deceased was qualified as an M. Phil in Economics from JNU and was entitled for Ph.D. from JNU, New Delhi. It is averred that the deceased served as an Assistant Professor in IMT, Raj Nagar, Ghaziabad for the period 23.10.2002 to 4.5.2007 and his last drawn monthly salary was Rs.43,346/. Thereafter he joined the Confederation of Indian Industry (CII) as Deputy Director where he was getting a similar monthly salary of Rs.45,000/ (approx.). He worked in Confederation of Indian Industries from June, 2007 to 25.4.2008. Thereafter the deceased joined as an Associate Professor of Economics and Business Policy in FORE School of Management vide appointment letter dated 22.4.2008 where he was drawing total salary of Rs.45,000/ per month which was his last drawn salary prior to his demise due to the accident. It is stated that as per the present UGC rules the present monthly salary of any Associate Professor serving in any recognized University/ College/ affiliated institutes is more than Rs.75,000/ along with other ancillary benefits. It is averred that the deceased would have been entitled for such enhancement in his earnings had he not met with the Neera Shukla Vs. Yogesh Kumar & Ors. Page No. 7 of 68 Suit No.229/14 Yogesh Kumar v Neera Shukla & Ors.
Suit No. 226/14accident.
5. It is averred that the deceased, by virtue of being a brilliant academician was leading a very economic life as he was neither extravagant nor a materialistic person thereby he was contributing more than two third of his total earning to his dependents i.e. the petitioners No.1 and 2 for meeting normal expenses and further savings and they had suffered complete loss of dependency on account of the demise of the deceased. It is averred that the deceased was enrolled with the Center for Economic Studies and Planning, School of Social Sciences, JNU as Junior Research Fellow of UGC for the academic period of 19952001. He was appointed as Senior Research Analyst in the RBI Unit of the Institute of Economic Growth, Delhi University vide appointment letter dated 25.9.2001 and the letter dated 8.10.2002 issued by the said Institute strengthens the bright future prospects of the deceased had he not met with the accident. It is averred that on the date of the accident which resulted into the death of the deceased Arvind Kumar Shukla the offending vehicle was driven by the respondent No.1, the offending vehicle was owned by the respondent No.2 and the offending vehicle was insured by its insurer i.e. the respondent No.3. Even the vehicle owned by the deceased was insured by the respondent No.4 on the date of the accident. Hence all the respondents were liable to pay the amount of compensation to the petitioners, jointly and severally. It is prayed that an amount of Rs.2.5 crores be awarded as compensation in favour of the petitioners and against the respondents, Neera Shukla Vs. Yogesh Kumar & Ors. Page No. 8 of 68 Suit No.229/14 Yogesh Kumar v Neera Shukla & Ors.
Suit No. 226/14jointly and severally.
6. Written statement was filed on behalf of the respondents No.1 and 2 denying the averments made in the claim petition. The manner of the accident was denied and it was stated that on 30.7.2008 the deceased was driving his Maruti car No.DL 9CJ 4280 from Hapur to Ghaziabad and behind him the respondent No.1 was driving his motorcycle No.UP 14AK 2138 on the correct side at the speed of about 40 km per hour keeping appropriate distance. He was going with his friend from Hapur to his house at Pilkhuwa. When the car reached near Saraswati Hospital, Anwarpur the deceased without giving the side indicator and without looking at the back and without taking the car on the side stopped it and came out after opening the door of the car, then because of the car stopping all of a sudden and the deceased coming out of the car he struck against the motorcycle of the respondent No.1 which struck against the deceased and the door of the car due to which the deceased and the respondent No.1 sustained grievous injuries on the head and on various parts of the body which were treated initially at Bharat Hospital, Garh Road, Meerut and thereafter the respondent No.1 was admitted at Pant Hospital and even at present his treatment was continuing. The front door of the car was damaged in the accident. It was averred that the accident had taken place due to the fault of the deceased. It is averred that the compensation has been demanded without any basis. It is stated that the father of the respondent No.1 went to PS Pilkhuwa to report about the accident but the police refused to record his Neera Shukla Vs. Yogesh Kumar & Ors. Page No. 9 of 68 Suit No.229/14 Yogesh Kumar v Neera Shukla & Ors.
Suit No. 226/14report on which the father of the respondent No.1 wrote down how the incident had taken place and sent the same through registered post to SSP, Ghaziabad but no action was taken. It is averred that the accident had taken place due to the negligence of the deceased and the respondent No.1 was not at fault and the respondent No.1 has a valid driving license. It is averred that the respondent No.2 is the registered owner of the motorcycle and the same is insured with the respondent No.3 and if any compensation is fixed, the same is payable by the insurance company.
7. Rejoinder was filed on behalf of the petitioners to the written statement filed on behalf of the respondents No.1 and 2 reiterating and reaffirming the averments made in the claim petition. It is denied that the respondent No.1 was driving the offending vehicle with limited speed of 40 km/hr or that the deceased stopped his vehicle suddenly without giving indicator or that the deceased came out of the vehicle suddenly which resulted into his collision with the offending vehicle driven by the respondent No.1 or that the deceased died due to his own mistake. It is stated that the accident occurred due to the sole rash and negligent driving of the offending vehicle by the respondent No.1 and the deceased was not responsible in any manner for the accident.
8. Separate written statement was filed on behalf of the respondent No.3 taking the preliminary objections that the petition was not at maintainable as it did not disclose any cause of action against the respondent No.3. It is averred Neera Shukla Vs. Yogesh Kumar & Ors. Page No. 10 of 68 Suit No.229/14 Yogesh Kumar v Neera Shukla & Ors.
Suit No. 226/14that the petitioners cannot claim any third party insurance from the respondent No.3 if the driver of the vehicle was driving the vehicle in contravention of various provisions of the Motor Vehicles Act as amended upto date and as per the terms and condition of the policy. It is averred that no notice of any accident was ever received by the respondent No.3 in respect of the accident, and the accident was therefore, denied. It is averred that the alleged driver was not holding any proper and valid license to drive vehicle No.UP 14AK 2138 (Motor Cycle TVS Star) and the driver was driving the vehicle without the permission of the authority of the insured. It is averred that the present petition is bad for nonjoinder of the parties. Averments made in the claim petition were denied. It is stated that vehicle No.UP 14AK 2138 was insured in the name of the respondent No.2 under the policy No.39551358 valid from 27.07.2008 to 26.07.2009 midnight. It is averred that the claim is highly exaggerated. Rejoinder was filed on behalf of the petitioners to the written statement filed on behalf of the respondent No.3 reiterating and reaffirming the averments made in the claim petition.
9. Vide order dated 6.4.2010 of my learned predecessor interim award of Rs.50,000/ was passed in favour of the petitioners. An application was filed on behalf of the respondent No.4/ TATA AIG General Insurance Co. Ltd. to clarify whether the interim award was to be paid by the respondent No.3 or the respondent No.4 and by order dated 12.4.2010 it was directed that as the offending vehicle was insured with the respondent No.3, the respondent No.3 Neera Shukla Vs. Yogesh Kumar & Ors. Page No. 11 of 68 Suit No.229/14 Yogesh Kumar v Neera Shukla & Ors.
Suit No. 226/14was liable to pay the interim award and the respondent No.4 need not pay the compensation amount. Vide order dated 3.8.2011 of my learned predecessor the respondents No.1 and 2 were proceeded exparte. An application was filed on behalf of the respondent No.4 under order 1 rule 10 CPC for deletion of its name from the array of parties on the ground that it was the insurer of the vehicle driven by the deceased and vide order dated 17.9.2011 of my learned predecessor the name of the respondent No.4 was directed to be deleted. From the pleadings of the parties, the following issues were framed by my Ld. Predecessor vide order dated 17.9.2011:
1. Whether the deceased sustained fatal injuries in the accident which occurred on 30.07.2008 at about 8.45 pm at NH Saraswati Institute of Medical Science Anwarpur, NH24 Road, Pilukhwa Ghaziabad, UP, due to rash and negligent driving of vehicle No.UP 14AK 2138 by respondent no.1, owned by respondent no.2 and insured with respondent No.3? OPP
2. Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
3. Relief.
An application under order 6 rule 17 CPC was filed on behalf of the respondents No.1 and 2 for amendment of the written statement to substitute the name of Anand Hospital instead of Bharat Hospital where the respondent No.1 was treated and the same was allowed vide order dated 16.7.2012 of my Neera Shukla Vs. Yogesh Kumar & Ors. Page No. 12 of 68 Suit No.229/14 Yogesh Kumar v Neera Shukla & Ors.
Suit No. 226/14learned predecessor. On 4.9.2013 it was stated that the connected matter being present suit No.226/14 and this suit arise out of the same accident and both be taken up together.
10. On behalf of the petitioners Ms. Neera Shukla appeared in the witness box as PW1 and led her evidence by way of affidavit which is Ex.PW1/A reiterating the averments made in the claim petition. Her Identity Card is Ex.PW1/1, birth certificate of petitioner No.2 is Ex.PW1/2, certified copies of the criminal record are Ex.PW1/3.
11. Shri Ajay Kumar Mishra entered into the witness box as PW2 and led his evidence by way of affidavit which is Ex.PW2/A. He deposed that he is the younger brother of the petitioner No.1 and the maternal uncle of the petitioner No.2. He stated that on 30.07.2008, PW2, his friend Kushal Dev and his brother in law Shri Arvind Kumar Shukla (since deceased) were returning from Meerut to Delhi by driving vehicle Maruti bearing No.DL9CG 4280 which was being driver by the brother in law of PW2. When the deceased along with the accompanying persons reached at the gate of Saraswati Institute Medical Science his vehicle developed some technical snag due to which the Maruti 800 was taken to the side of the road by the deceased to find out the technical problem in it. PW2 and his friend got down from the car and they were standing away from the car while the deceased was examining the vehicle. When the deceased was trying to examine the technical snag/ problem in his Neera Shukla Vs. Yogesh Kumar & Ors. Page No. 13 of 68 Suit No.229/14 Yogesh Kumar v Neera Shukla & Ors.
Suit No. 226/14vehicle the respondent No.1 hit the deceased and his car with his offending vehicle motorcycle TVS Star bearing No.UP 14AK 2138 as the respondent No.1 was driving the offending vehicle with rashness and gross negligence with high speed. Consequently the deceased suffered fatal injuries to his body which finally resulted into the death of Arvind Kumar Shukla due to the road traffic accident caused by the respondent No.1 through his rash and negligent driving of the offending vehicle. He stated that one pillion rider on the said offending vehicle was also injured due to the said rash and negligent driving of the offending driver/ respondent No.1.
12. PW2 stated that when the deceased was hit by the offending vehicle driven rashly and negligently by the respondent No.1 the deceased was examining the technical snag developed in his Maruti 800 at the site of occurrence by stopping/ parking his vehicle at the proper place i.e. by the correct side of the road, in front of the gate of the institute. PW2 further deposed that he and his friend were standing away from the vehicle of the deceased so they could witness the rash and negligent driving of the respondent No.1 with very high speed. He stated that even the vehicle of the deceased was damaged due to the rash and negligent driving of the offending vehicle as the offending vehicle hit not only the deceased but also it hit the stationary car of the deceased in the right side. On occurrence of the accident the eye witness Kushal Dev informed the relatives of the deceased Arvind Kumar Shukla who rushed to the site of occurrence. PW2 went in shock and Neera Shukla Vs. Yogesh Kumar & Ors. Page No. 14 of 68 Suit No.229/14 Yogesh Kumar v Neera Shukla & Ors.
Suit No. 226/14Kushal Dev waited at the site of the accident till relatives of the deceased arrived there. On reaching there Shri Narender Prasad Shukla informed the police and got his statement recorded in the form of tehrir. When the local police of PS Pilkhuwa was informed the police reached at the site of the occurrence/ accident and recorded the statement of Narender Prasad Shukla. The body of the deceased was shaken which was found to be lifeless. A panchnama was prepared by the police in the presence of five persons including PW2, his friend Kushal Dev and the brother of the deceased. Thereafter post mortem was conducted by the concerned doctor. FIR No.289/2008 was registered at PS Pilkhuwa under Sections 279/304A/427 IPC after receiving the post mortem report of the deceased from the concerned authority. The police performed its duty and prepared the relevant documents and submitted the charge sheet before the concerned court of Hapur. He stated that brother in law of PW2 died due to the grievous injuries suffered by him which were caused due to being hit by the offending vehicle driven rashly and negligently with high speed by the offending driver/ respondent No.1 and there was no contributory negligence on the part of the deceased.
13. Shri V. Murlidharan, Account Incharge, Fore School of Management appeared as PW3 and placed on record the service particulars of Late Shri Arvind Kumar Shukla, who was working as an Associate Professor in the Institute. Copy of Authority Letter dated 09.04.2012 issued in favour of PW3 Neera Shukla Vs. Yogesh Kumar & Ors. Page No. 15 of 68 Suit No.229/14 Yogesh Kumar v Neera Shukla & Ors.
Suit No. 226/14by Chief Administrative Officer of the institute is Ex.PW3/1. The appointment letter dated 22.04.2008 of Arvind Kumar Shukla is Ex.PW3/2 along with the joining report / consent given by Shri Arvind Kumar Shukla. He produced the chart showing details of salary and perks given to Arvind Kumar Shukla by the management along with the chart on the basis of which the calculation had been made and the same is Ex.PW3/3. Copy of the advertisement given on behalf of the Fore School of Management is Ex.PW3/4, attested copy of letter dated 25.03.2009 is Ex.PW3/5 and copy of covering letter is Ex.PW3/6. Petitioners' evidence was closed on 24.09.2012.
14. On behalf of the respondents No.1 and 2 Shri Yogesh Kumar appeared in the witness box as R1W1 and led his evidence by way of affidavit Ex.R1W1/A. He relied upon the documents which have been exhibited in suit No.226/14 titled as Yogesh Kumar Vs. Neera Shukla & Ors (i.e. the medical prescriptions of Anand Hospital, Lok Nayak Hospital, Discharge Slips and prescriptions, G.B. Pant Hospital registration cards and prescription Ex.PW1/1 (colly), medical bills Ex.PW1/2 (colly), copy of complaint dated 29.08.2008 Mark A, copy of election I card Ex.PW1/3, copy of High School Certificate Ex.PW1/4, Copy of intermediate examination certificate Ex.PW1/5 and copy of his B.Com Final Year Marksheet Ex.PW1/6). RE was closed on 4.9.2013.
Neera Shukla Vs. Yogesh Kumar & Ors. Page No. 16 of 68 Suit No.229/14 Yogesh Kumar v Neera Shukla & Ors.
Suit No. 226/14Suit No.226/14
15. It is the case of the petitioner Yogesh Sharma that on 30.07.2008, the petitioner was coming from Hapur and going towards Pilkhuwa by his motorcycle TVS Star City No.UP 14AK 2138 and the offending vehicle Maruti 800 bearing No.DL 9CG 4280 was going ahead. The petitioner was behind the offending vehicle with appropriate distance and having approximately 4045 p/km speed. When the petitioner reached at NH Saraswati Institute of Medical Science Anwarpur, NH 24 Road, Pilkhuwa Ghaziabad, U.P. at 20.45 pm, the driver of the offending vehicle suddenly stopped the car and opened the door from his side without giving any indicator of stopping the vehicle and came out from the car. It is averred that the incident took place in a short manner that the driver came immediately from the car at the time of stopping the vehicle; the vehicle of the petitioner was running in condition and the distance between the two vehicles was very less, so after taking the break, the vehicle of the petitioner struck against the door of the offending vehicle as well as the driver of the offending vehicle and due to the said accident, the driver of the offending vehicle and the petitioner received grievous injuries and due to proper medical care, the petitioner survived his life till now and due to the injury sustained by the driver of the offending vehicle, he died on the spot. It is averred that the accident was caused due to the negligency of the driver of the offending vehicle. After the accident the petitioner was removed to Anand Hospital, Garh Road, Meerut, U.P., where the MLC/Medical Report at Sr. Neera Shukla Vs. Yogesh Kumar & Ors. Page No. 17 of 68 Suit No.229/14 Yogesh Kumar v Neera Shukla & Ors.
Suit No. 226/14No.266 of the petitioner was prepared. Thereafter for treatment, the petitioner went to various hospitals and at the time of filing the claim petition he was under treatment in Lok Nayak Hospital. It is averred that due to the sympathetic view, the police registered the case FIR No.289/2008, u/S 279/304A/427 IPC, PS Pilkhuwa against the petitioner, while the accident in question was caused due to the negligency of the driver of the offending vehicle. It is averred that the husband of the respondent No.1 was driving the offending vehicle and the offending vehicle is insured with the respondent No.2.
16. It is averred that the petitioner is about 32 years and at the time of the accident, the petitioner was taking private home tuitions and was earning Rs.12,000/ per month. The petitioner could not take home tuitions due to the said accident till two years but was giving tuitions at his house only. It is averred that the husband of the respondent No.1 caused the accident by plying the offending vehicle resulting in the injury to the petitioner and the respondent No.2 is the insurer of the offending vehicle and the respondent No.3 is the insurer of the vehicle of the petitioner, hence all the respondents are jointly and severally liable to pay the compensation to the petitioner. It is prayed that an amount Rs.10,00,000/ be awarded as compensation in favour of the petitioner and against the respondents.
Neera Shukla Vs. Yogesh Kumar & Ors. Page No. 18 of 68 Suit No.229/14 Yogesh Kumar v Neera Shukla & Ors.
Suit No. 226/14
17. Written statement was filed on behalf of the respondent No.1 (Neera Shukla) taking the preliminary objections that the story mentioned in the claim petition is absolutely false and concocted, to mislead the court. It is averred that the brother of the respondent No.1 namely Shri Ajay Kumar Mishra and his friend Kushal Dev were eye witnesses to the said accident, which occurred due to gross rashness and negligence of the petitioner. It is denied that the vehicle No.DL 9CG 4280 (Maruti 800) which was being examined at the site of accident due to technical defect occurred in it, was an offending vehicle in any manner whatsoever. It is denied that the deceased was responsible for the said accident in any manner whatsoever and it is averred that it was the petitioner who was solely responsible for the occurrence of the accident by driving his motorcycle No.UP 14AK 2138 with absolute rashness and negligence which consequently hit the deceased alongwith the right door of the said stationary car of the deceased finally resulting into the death of the deceased Arvind Kumar Shukla. It is averred that the petitioner wants to take advantage of his own wrong / recklessness and gross negligence. It is averred that while the deceased was examining the technical defect of his stationary car both the indicators at the back of the car were on i.e. working / twinkling and the car was parked at the correct place i.e. extreme left of the road. Averments made in the claim petition were denied. It is averred that the deceased was not driving the vehicle rather it was a stationary vehicle duly parked at the correct place by the deceased for detecting the fault developed in his vehicle. It is averred that the injury received by the petitioner was due to Neera Shukla Vs. Yogesh Kumar & Ors. Page No. 19 of 68 Suit No.229/14 Yogesh Kumar v Neera Shukla & Ors.
Suit No. 226/14his own gross negligence resulting into the death of the deceased.
18. Separate written statement was filed on behalf of the respondent No.2 (TATA AIG General Insurance Co. Ltd.) taking the preliminary objections that the claim petition filed by the petitioner is a gross abuse of process of law and the claim petition is liable to be dismissed, as the petitioner has not approached the court with clean hands and has suppressed material facts. It is averred that no cause of action has ever arisen in favour of the petitioner and against the respondent No.2 for filing the present claim petition. It is averred that the petitioner's allegations are totally baseless, concocted and without any substance. It is averred that the claim petition is filed by the petitioner with malafide intention and illmotive. It is averred that the compensation claimed by the petitioner is highly exaggerated. It is averred that this court has no jurisdiction to adjudicate upon the case as the accident took place at NH Saraswati Institute of Medical Science, Anwarpur, NH24 Road, Pilkhuwa Ghaziabad, U.P. on 30.07.2008 and thereafter an FIR bearing No.289/2008 U/S. 279/304A/427 IPC was registered at PS Pilkhuwa Distt. Ghaziabad, U.P. Even the petitioner had got treatment in Meerut U.P. It is admitted that the alleged offending vehicle bearing No.DL 9CG 4280 is insured with the respondent No.2 vide policy No.0100273108 from 20.08.2007 to 19.08.2008. It is averred that the petitioner was at fault and the respondent No.1 had no negligence in the said accident. It is averred that the vehicle of the petitioner was duly insured with the respondent No.3 and the accident took Neera Shukla Vs. Yogesh Kumar & Ors. Page No. 20 of 68 Suit No.229/14 Yogesh Kumar v Neera Shukla & Ors.
Suit No. 226/14place due to the sole negligence of the petitioner. Averments made in the claim petition were denied. It is averred that the injured sustained injuries because of his own fault and without applying his mind and he failed to control his own vehicle.
19. Separate written statement was filed on behalf of the respondent No.3 (IFFCO TOKIO General Insurance Co. Ltd.) taking the preliminary objections that the alleged accident had taken place due to the sole carelessness and negligence of the deceased Shri Arvind Kumar Shukla who was driving the vehicle No.DL9CG4280. The involvement of the motorcycle bearing No.UP 14AK2138 is denied for want of knowledge. It is averred that no cause of action arises against the respondent No.3. It is averred that if the injured sustained injuries, then he must have sustained because of his own carelessness, rashness and negligence and not because of any wrongful act or negligence on the part of the driver of the motorcycle. It is averred that the petitioner is not third party and therefore cannot claim any compensation under the Motor Vehicle Act from the respondent No.3. The liability for compensation if any is of the respondent No.2. It is averred that the respondent No.3 is not liable to pay any amount of compensation to the petitioner / injured as at the time of the alleged accident, the driver of the vehicle No.UP 14AK 2138 was not holding a valid and effective driving license and the insured had intentionally committed breach of terms and conditions of the insurance policy. It is averred that the deceased had contributed to the Neera Shukla Vs. Yogesh Kumar & Ors. Page No. 21 of 68 Suit No.229/14 Yogesh Kumar v Neera Shukla & Ors.
Suit No. 226/14accident upto 100% as he was careless, rash and negligent while being in charge of the car. It is averred that the contents of the FIR were not correct and not in accordance with the circumstances of the accident. The averments made in the claim petition were denied. It is averred that the respondent No.3 did not receive any notice from the insured with regard to the alleged accident. It is averred that the amount claimed is highly exaggerated and without any basis.
20. From the pleadings of the parties, the following issues were framed by my Ld. Predecessor vide order dated 13.12.2012:
1. Whether the petitioner Shri Yogesh Kumar sustained injuries in the accident which occurred on 30.07.2008 at about 8.45 pm at NH Saraswati Institute of Medical Science Anwarpur, NH 24 Road, Pilkhuwa Ghaziabad, U.P., caused by rash and negligent driving of vehicle No.DL 9CG 4280 owned by respondent no.1 and insured with respondent No.2? OPP
2. Whether the petitioner is entitled to any compensation? If so, to what amount and from whom?
3. Relief.
When the matter was listed for final arguments an application was filed on behalf of the respondent No.2 for deletion of the name of the respondent No.2 from the array of parties and by order dated 3.4.2014 it was held that the liability, if any, of the respondent No.2 would be decided by the judgment/ Neera Shukla Vs. Yogesh Kumar & Ors. Page No. 22 of 68 Suit No.229/14 Yogesh Kumar v Neera Shukla & Ors.
Suit No. 226/14award.
21. The petitioner Shri Yogesh Kumar appeared in the witness box as PW1 and led his evidence by way of affidavit which is Ex.PW1/A (same as Ex.R1W1/A in suit No.229/14) reiterating the averments made in the claim petition. The medical prescriptions of Anand Hospital, Lok Nayak Hospital discharge slips and prescriptions, G.B. Pant Hospital registration cards and prescription are Ex.PW1/1 (colly), medical bills are Ex.PW1/2 (colly), copy of complaint dated 29.08.2008 is Mark A, copy of his election identity card is Ex.PW1/3, copy of High School Certificate is Ex.PW1/4, copy of intermediate examination certificate is Ex.PW1/5 and copy of his B.Com Final Year Marksheet is Ex.PW1/6.
22. Shri Harish Chandra appeared in the witness box as PW2 and led his evidence by way of affidavit which is Ex.PW2/A. He deposed that on 30.7.2008 he came to know that his son had met with an accident, hence he approached the police of PS Pilkhuwa for registration of FIR but the police did not lodge any FIR on the complaint of PW2 so he had sent a written complaint to the senior police officer by post on 29.8.2008. He stated that his son was still suffering from injuries and was under treatment. Petitioner's evidence was closed on 03.07.2013. The learned counsel for the respondent No.1 submitted that he was relying upon the testimony of the petitioner in suit No.229/14. RE was closed on 30.10.2013.
Neera Shukla Vs. Yogesh Kumar & Ors. Page No. 23 of 68 Suit No.229/14 Yogesh Kumar v Neera Shukla & Ors. Suit No. 226/14 FINDINGS
23. I have heard the Learned Counsels for the parties and perused the record. Written arguments were also filed on behalf of Neera Shukla and IFFCO Tokio which I have perused. Ms. Neera Shukla and her son were examined on 10.2.2014 as also Yogesh Shuka in terms of the judgment of the Hon'ble High Court on 11.1.2013 in MACA No.792/2006 titled Oriental Insurance Co. Ltd. v. Ranjit Pandey and Ors.
24. My findings on the specific issues are as under:
Issue No. 1 in Suit No.226/14 and 229/14 are being taken up together:In Suit No.229/14
1. Whether the deceased sustained fatal injuries in the accident which occurred on 30.07.2008 at about 8.45 pm at NH Saraswati Institute of Medical Science Anwarpur, NH24 Road, Pilukhwa Ghaziabad, UP, due to rash and negligent driving of vehicle No.UP 14AK 2138 by respondent no.1, owned by respondent no.2 and insured with respondent No.3? OPP In Suit No.226/14
1. Whether the petitioner Shri Yogesh Kumar sustained injuries in the accident which occurred on 30.07.2008 at about 8.45 pm at NH Saraswati Neera Shukla Vs. Yogesh Kumar & Ors. Page No. 24 of 68 Suit No.229/14 Yogesh Kumar v Neera Shukla & Ors.Suit No. 226/14
Institute of Medical Science Anwarpur, NH 24 Road, Pilkhuwa Ghaziabad, U.P., caused by rash and negligent driving of vehicle No.DL 9CG 4280 owned by respondent no.1 and insured with respondent No.2? OPP
25. As the petitions have been filed U/s 166 M.V Act it was incumbent upon the petitioners in both the cases to prove that injuries were sustained in an accident caused due to rash and negligent driving by the driver of the offending vehicle. To determine the negligence of the driver of the offending vehicle it has been held in National Insurance Company Ltd. vs Pushpa Rana & Another 2009 Accident Claims Journal 287 as follows:
"The last contention of the appellant insurance company is that the respondents/claimants should have proved negligence on the part of the driver and in this regard the counsel has placed reliance on the judgment of the Hon'ble Apex Court in Oriental Insurance Company Ltd. V. Meena Variyal (supra). On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced: (i) certified copy of the criminal record of criminal case in FIR No.955 of 2004, pertaining to involvement of offending vehicle (ii) criminal record showing completion of investigation of police and issue of charge sheet under sections 279/304A, Indian Penal Code against the driver;
(iii) certified copy of FIR, wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of deceased.
These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under the Motor Vehicle Act are not akin to proceedings in a civil suit and hence Neera Shukla Vs. Yogesh Kumar & Ors. Page No. 25 of 68 Suit No.229/14 Yogesh Kumar v Neera Shukla & Ors.
Suit No. 226/14
strict rules of evidence are not required to be followed in this regard. Hence, this contention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on part of the driver."
It is established law that in a claim petition under Motor Vehicle Act, the standard of proof to establish rash and negligent driving by the driver of the offending vehicle is not at par with the criminal case where such rashness and negligence is required to be proved beyond all shadow of reasonable doubt. In Kaushnamma Begum and others v. New India Assurance Company Limited, it was inter alia held by the Hon'ble Supreme Court that the issue of wrongful act or omission on the part of the driver of the motor vehicle involved in the accident has been left to a secondary importance and mere use or involvement of motor vehicle in causing bodily injury or death to a human being or damage to property would make the petition maintainable under Sections 166 and 140 of the Motor Vehicle Act.
26. The case of Neera Shukla is that on 30.07.2008, the deceased Arvind Kumar Shukla was hit by the driver of motorcycle bearing No.UP 14AK 2138 make TVS Star while he was driving his said offending vehicle with rashness and gross negligence. Consequently the deceased suffered fatal injuries to his body which finally resulted into the death of Shri Arvind Kumar Shukla. One pillion rider on the said offending vehicle was also injured due to the rash and negligent driving of the driver Yogesh Kumar. When the deceased was hit Neera Shukla Vs. Yogesh Kumar & Ors. Page No. 26 of 68 Suit No.229/14 Yogesh Kumar v Neera Shukla & Ors.
Suit No. 226/14by the motorcycle the deceased was examining the technical snag developed in his vehicle Maruti 800 bearing No.DL 9CG 4280 at the site of occurrence by stopping / parking his vehicle at the proper place i.e. by the correct side of the road. The deceased was coming from Meerut to Delhi by driving his Maruti car, owned by him, along with his two acquaintances / relatives namely Kushal Dev and Ajay Mishra (being his brother in law). The two cotravellers with the deceased were standing away from the vehicle of the deceased which was being technically examined by the deceased at that time. So they could witness the rash and negligent driving of the driver of the motorcycle which finally resulted into the death of the injured i.e. Arvind Kumar Shukla. Even the vehicle of the deceased was damaged. The eye witness Ajay Mishra informed Mr. Narender Prasad Shukla i.e. brother of the deceased Arvind Kumar Shukla, who rushed to the site of occurrence and informed the police and got his statement recorded in the form of Tehrir. The police reached at the place of occurrence / accident and recorded the statement of Narender Prasad Shukla and FIR bearing No.289/2008 dated 30.07.2008 under Section 279/304A/427 IPC was registered at PS Pilkhuwa Dist. Ghaziabad, U.P. after receiving the post mortem report of the deceased from the competent authority. In paras 5 and 6 of her affidavit Ex.PW1/A Neera Shukla had reiterated the mode and manner of the accident as stated in the claim petition. Likewise in paras 3 to 8 of his affidavit Ex.PW2/A Ajay Kumar Mishra had reiterated the mode and manner of the accident.
Neera Shukla Vs. Yogesh Kumar & Ors. Page No. 27 of 68 Suit No.229/14 Yogesh Kumar v Neera Shukla & Ors.
Suit No. 226/14
27. Neera Shukla had filed certified copies of the criminal record consisting of copy of police Form No.13 dated 31.7.2008 signed by the Medical Office Incharge, police form No.179/379, inquest proceeding, copy of site plan, copy of mechanical inspection report of vehicle No.UP 14AK 2138 and of DL 9CG 4280, copy of bail bond of Yogesh, copy of surety bond of Harish Chandra, copy of affidavit of Mukesh who is the owner of the motorcycle, copy of superdari application filed by Mukesh Kumar, copy of surrender application and application for bail by Yogesh, copy of Form No.45 of Yogesh Kumar, copy of bail bond filled by Yogesh Kumar before the police, copy of order and copy of post mortem report. Neera Shukla had also placed on record certified copy of FIR No.289/08 under sections 279/304A/427 IPC, PS Pilkhuwa, copy of tehrir and copy of charge sheet. As per the FIR No.289/08 under sections 279/304A/427 IPC, PS Pilkhuwa the case was registered on the basis of complaint of Shri Narender Prasad Shukla, brother of the deceased Arvind Kumar Shukla wherein he has stated the manner in which the accident took place. As per the charge sheet Yogesh Kumar has been charge sheeted for the offence under sections 279/304A/427 IPC.
28. Per contra it is the case of Yogesh Kumar that on 30.07.2008, he was coming from Hapur and going towards Pilkhuwa by his motorcycle TVS Star City No.UP 14AK 2138 and the vehicle Maruti 800 bearing No.DL 9CG 4280 was going ahead. He was behind the offending vehicle with appropriate distance and having approximately 4045 p/km speed. When he reached at Neera Shukla Vs. Yogesh Kumar & Ors. Page No. 28 of 68 Suit No.229/14 Yogesh Kumar v Neera Shukla & Ors.
Suit No. 226/14NH Saraswati Institute of Medical Science Anwarpur, NH 24 Road, Pilkhuwa Ghaziabad, U.P. at 20.45 pm, the deceased suddenly stopped the car and opened the door from his side without giving any indicator of stopping the vehicle and came out from the car. The incident took place in a short manner that the driver came immediately from the car at the time of stopping the vehicle; the vehicle of Yogesh Kumar was running in condition and the distance between the two vehicles was very less, so after taking the break, the vehicle of Yogesh Kumar struck against the door of the car as well as the driver of the car and due to the said accident, the driver of the car and Yogesh Kumar received grievous injuries and due to the injury sustained by the driver of the offending vehicle, he died on the spot. It was stated that the accident was caused due to the negligency of the driver of the car. It was stated that due to the sympathetic view, the police registered the case FIR No.289/2008, u/S 279/304A/427 IPC, PS Pilkhuwa against Yogesh Kumar while the accident in question was caused due to the negligency of the driver of the car.
29. It is thus not in dispute that the accident had taken place on 30.7.2008 when the motorcycle and the car were coming from Hapur side and the motorcycle had struck against the car and the driver of the car. It is also not in dispute that the accident had taken place in front of Saraswati Institute of Medical Science. However both the sides have put forth different versions regarding the manner in which the accident had taken place. During cross examination by learned counsel for Yogesh and the owner of the motorcycle Neera Shukla Vs. Yogesh Kumar & Ors. Page No. 29 of 68 Suit No.229/14 Yogesh Kumar v Neera Shukla & Ors.
Suit No. 226/14Neera Shukla stated that she is post graduate. She is not employed. She stated that she was at home when she received the information of the accident. During cross examination by learned counsel for IFFCO Tokio Neera Shukla stated that she is not the eye witness. She denied the suggestion that the accident had occurred due to the negligence of the deceased as she was not the eye witness. Thus Neera Shukla was not an eye witness to the accident.
30. Neera Shukla had examined one Ajay Kumar Mishra who was allegedly with the deceased at the time of the accident and an eye witness to the accident and during cross examination by learned counsel for IFFCO Tokio Ajay Kumar Mishra stated that he is working with Globalogic as Manager, Organization Effectiveness and Talent Management. He stated that on the date of the accident i.e. 30.07.2008, he was working with Aricent Technologies as a Lead Organizational Development. He stated that he was present at the spot at the time of the accident. He stated that he had not taken any leave on the date of the accident. He had left the office at about 12 or 12.30 pm on the date of the accident. He denied the suggestion that he was not present at the spot at the time of the accident or that he was deposing falsely as the deceased was his brother in law. He admitted that the police did not record his statement on the date of the accident volunteered it was recorded on the next day. He admitted that FIR was not lodged on his statement. He denied the suggestion that he was not present at the spot of accident. He also denied Neera Shukla Vs. Yogesh Kumar & Ors. Page No. 30 of 68 Suit No.229/14 Yogesh Kumar v Neera Shukla & Ors.
Suit No. 226/14the suggestion that he was not accompanying the deceased when he met with an accident. Thus Ajay Kumar Mishra was crossexamined on his presence at the spot and it was argued on behalf of IFFCO Tokio that there is nothing to show that he had taken leave from his office and even the FIR was not registered on his complaint which creates doubt about his presence at the spot. It was also argued that Ajay Kumar Mishra is the brother of Neera Shukla and therefore an interested witness to depose in favour of the deceased. It is not in dispute that Ajay Kumar Mishra is the brother of Neera Shukla. Ajay Kumar Mishra himself had stated that he had not taken leave on the day of the accident but he had also stated that he had left the office at about 12 or 12.30 p.m. He had stated that the police had not recorded his statement on the day of the accident and he admitted that the FIR was not lodged on his statement. In fact it was stated that Kushal Dev who was also accompanying the deceased had called up the brother of the deceased Narender Prasad Shukla who had reached the spot and the FIR was registered on the statement of Narender Prasad Shukla.
31. During further crossexamination by the learned counsel for IFFCO Tokio Ajay Kumar Mishra stated that on the date of accident, he was accompanied by his brotherinlaw Shri Arvind Kumar Shukla (deceased) along with another person Shri Kushal Dev. He stated that police did not record the statement of Shri Kushal Dev on the date of accident. During cross examination by learned counsel for Yogesh and Mukesh Ajay Kumar Mishra Neera Shukla Vs. Yogesh Kumar & Ors. Page No. 31 of 68 Suit No.229/14 Yogesh Kumar v Neera Shukla & Ors.
Suit No. 226/14stated that Kushal Dev is a resident of Hapur but he did not know his address. On the date of accident, he had gone to Meerut to see the ailing relative of the deceased. He stated that they were returning together from Meerut via Hapur to Delhi. The accident occurred at about 8.45 pm. FIR was got lodged by Shri Narender Prashad Shukla, brother of the deceased. Kushal Dev had informed Narender Prashad Shukla and he reached the spot. He stated that Shri Narender Prashad Shukla is a resident of Delhi and was in Delhi on the date of accident. Thus the police had not even recorded the statement of Kushal Dev and the FIR was registered on the basis of the statement of Narender Prashad Shukla who had reached the spot from Delhi. It would seem strange that the FIR was registered not on the basis of the statement of the eye witnesses but on the basis of the statement of a person who came from Delhi. However the factum of the accident is not in dispute and the manner of the accident is in dispute.
32. Ajay Kumar Mishra was also crossexamined regarding the manner of the accident. During crossexamination by the learned counsel for IFFCO Tokio Ajay Kumar Mishra admitted that the front door of the vehicle No.DL 9CG 4280 driver side was damaged in the accident. He denied the suggestion that the vehicle was standing on the middle of the road. He admitted that engine of their car had stopped working while on the run. He denied the suggestion that the accident occurred due to parking of their car in the middle of the road and opening of one of the doors of the car without caring for the Neera Shukla Vs. Yogesh Kumar & Ors. Page No. 32 of 68 Suit No.229/14 Yogesh Kumar v Neera Shukla & Ors.
Suit No. 226/14moving traffic. He denied the suggestion that he was deposing falsely to help his brother in law (deceased) to get the claim.
33. During crossexamination by learned counsel for Yogesh and Mukesh Ajay Kumar Mishra stated that the accident occurred opposite to Saraswati Institute of Medical Science. He admitted that there was a space of about 12 15 steps from the hospital to the spot of accident. He denied the suggestion that the accident occurred due to sudden applying of brakes in the middle of the road. He stated that he got down from the vehicle when their vehicle stopped at the spot. He admitted that the driver's door of the car of the deceased was damaged in the accident. He denied the suggestion that the accident occurred since the deceased got down all of a sudden from the car and was hit by motorcycle coming from behind and the door of the car was also damaged resulting in sustaining the injuries. He admitted that the engine of the Maruti car is on the front side. He stated that the motorcycle driver had also sustained injuries in the accident. He denied the suggestion that he was not present at the spot. Thus Ajay Kumar Mishra had admitted that the front door (driver's door) of the car had got damaged. He had admitted that the engine of the car had stopped while on the run. He admitted that the engine of the Maruti car is on the front side. He had denied the suggestion that the car was standing in the middle of the road or that the door of the car had been opened without caring for the moving traffic.
Neera Shukla Vs. Yogesh Kumar & Ors. Page No. 33 of 68 Suit No.229/14 Yogesh Kumar v Neera Shukla & Ors.
Suit No. 226/14
34. During cross examination by learned counsel for Neera Shukla, Yogesh who appeared as R1W1 in suit No.229/14 and PW1 in suit No.226/14 stated that he possesses degree of B.Com. He denied the suggestion that he had hit the stationary car No.DL 9CG 4280 with his motorcycle and that the car was lying stationary at the spot of accident for the last 45 minutes prior to the accident or that he was driving his motorcycle at the speed of 8085 kmph. He admitted that the place of accident is in front of gate of Saraswati Medical College, Pilkhuwa, U.P. He denied the suggestion that car No.DL 9CG 4280 was standing about 20 feet on the left side of the main road. He denied the suggestion that he had hit the car No.DL 9CG 4280 which was lying stationary while its driver was coming back to sit on the driver seat after checking the engine of the car as it had developed mechanical defect. He denied the suggestion that the accident has not taken place due to the negligence of the driver of the car No.DL 9CG 4280 or that the accident had taken place due to his negligence. Thus Yogesh had denied the suggestion that car No.DL 9CG 4280 was standing about 20 feet on the left side of the main road. It was argued on behalf of IFFCO Tokio that the accident had taken place in the middle of the road and subsequently the car had been moved to the side and as such it was shown on the side of the road in the site plan. A perusal of the site plan shows that the spot of accident has been shown on the side of the road. However it cannot be said that the car was standing about 20 feet on the left side of the main road as was the suggestion that was put to Yogesh. At the same time there is nothing to show that the accident had indeed taken place in Neera Shukla Vs. Yogesh Kumar & Ors. Page No. 34 of 68 Suit No.229/14 Yogesh Kumar v Neera Shukla & Ors.
Suit No. 226/14the middle of the car when the car was stopped all of a sudden though Ajay Kumar Mishra had admitted that the engine of the car had stopped while on the run and it was not stated specifically that the car had been pushed to the side.
35. A suggestion was put to Yogesh by the learned counsel for Neera Shukla that he had hit the stationary car No.DL 9CG 4280 with his motorcycle and that the car was lying stationary at the spot of accident for the last 45 minutes prior to the accident which he denied as also that he had hit the car No.DL 9CG 4280 which was lying stationary while its driver was coming back to sit on the driver seat after checking the engine of the car as it had developed mechanical defect. It is pertinent that the case put forth all throughout on behalf of Neera Shukla has been that the accident had taken place when the deceased was examining the car for the technical snag/ problem in the car and even in the written arguments it was submitted that as per the eye witness when the deceased was examining his car after parking the car on the correct side, he was hit by the motorcycle. It was only during crossexamination of Yogesh that a suggestion was put to him that the car was lying stationary at the spot of accident for the last 45 minutes prior to the accident and that he had hit the car No.DL 9CG 4280 which was lying stationary while its driver was coming back to sit on the driver seat after checking the engine of the car as it had developed mechanical defect. It is significant that the case that was put forth on behalf of Neera Shukla that the Neera Shukla Vs. Yogesh Kumar & Ors. Page No. 35 of 68 Suit No.229/14 Yogesh Kumar v Neera Shukla & Ors.
Suit No. 226/14accident had taken place when the deceased was examining the car for the technical snag/ problem in the car is not even plausible as per the material on record. Admittedly the engine of Maruti car is on the front side and if the deceased was checking the same for technical snag he could have been hit by Yogesh only if he was coming from the other side. Admittedly the front door of the car had been damaged and the same is also borne out by the mechanical inspection report of the car. In fact there was no damage to the car other than to the front door. Even if it were to be contended that he was standing on the side of the car then the question of damage to the door of the car would not arise as the door would not be open and if indeed it was open then Yogesh would have hit the door and not the deceased who was apparently checking the technical snag in the car. Thus the accident had taken place either when the deceased had opened the door and was getting out of the car or when the deceased had opened the door and was getting back into the car because only in those circumstances the door of the car and the deceased would have been hit.
36. It was stated by Yogesh that he was driving the motorcycle at the speed of 3540 km/hr and he had denied the suggestion that he was driving the motorcycle at the speed of 8085 km/hr. While there is nothing to show that Yogesh was driving the motorcycle at the speed of 8085 km/hr it cannot even be said that he was driving at the speed of 3540 km/hr or had maintained proper distance as then he would have been in a position to control his Neera Shukla Vs. Yogesh Kumar & Ors. Page No. 36 of 68 Suit No.229/14 Yogesh Kumar v Neera Shukla & Ors.
Suit No. 226/14motorcycle and stop the same both if the car was already stationary or if the car had stopped all of a sudden. A duty was cast upon Yogesh to be cautious while driving and clearly he was rash and negligent in driving the motorcycle which had contributed to the accident taking place. At the same time a duty was also cast upon the deceased to be vigilant while opening the door of the car and if he was getting out of the car he should have looked behind to see if there was any coming traffic before opening the door. And if he was coming back after checking the technical snag and getting into the car he could not have missed seeing the coming motorcycle, if he was cautious. It may also be mentioned that admittedly it was 8.45 p.m. when the accident had taken place so there would not have been much light though none of the parties have raised the issue of lighting at the spot. It is thus a case where the accident had taken place due to the negligence of both the sides and it cannot be said that only one party was negligent.
37. It is not in dispute that the criminal case has been registered against Yogesh Kumar and the case of Yogesh Kumar is that his father had approached the police but they had refused to register their complaint and even no action was taken on the complaint which was sent by the father of Yogesh. During crossexamination by learned counsel for Neera Shukla Yogesh admitted that FIR No.289/08 u/S 279/304A/427 IPC PS Pilkhuwa had been registered against him. He denied the suggestion that the said case had been rightly registered against him or that the complaint dated 29.08.2008 Neera Shukla Vs. Yogesh Kumar & Ors. Page No. 37 of 68 Suit No.229/14 Yogesh Kumar v Neera Shukla & Ors.
Suit No. 226/14sent by him to police was false hence no action was taken on the same. During crossexamination by learned counsel for IFFCO Tokio Yogesh admitted that criminal trial in FIR No.289/08 under Sections 279/304A/427 IPC PS Pilkhuwa was pending against him in the court of learned Judicial Magistrate, Hapur, UP and he was facing trial. During crossexamination by the learned counsel for TATA AIG Yogesh stated that the complaint regarding the accident in the police station was made by his father. He denied the suggestion that his father had not made any complaint in the PS about the accident. Thus it is not in dispute that FIR had been registered against Yogesh and criminal trial was also pending against him in the concerned court. During cross examination by learned counsel for Neera Shukla, Harish Chandra stated that he received information about the accident at about 10 pm on 30.07.2008 from one of his friends. He denied the suggestion that the police did not take any action on his complaint as the same was found to be false by the police as after investigation the police came to the conclusion that the accident was caused due to the negligence of his son. He was not cross examined on behalf of the insurance companies. Thus Harish Chandra and Yogesh both had denied the suggestion that the police did not take action on the complaint of Harish Chandra as it was found to be false by the police after investigation. However the position is that the FIR was registered only against Yogesh and the driver of the car had expired in the accident.
Neera Shukla Vs. Yogesh Kumar & Ors. Page No. 38 of 68 Suit No.229/14 Yogesh Kumar v Neera Shukla & Ors.
Suit No. 226/14
38. In view of the testimony of the witnesses and documents on record which have remained unrebutted, the negligence of respondent No.1 has been prima facie proved but the deceased who was the driver of the car had also contributed to the happening of the accident. It was argued on behalf of IFFCO Tokio that the deceased had contributed to the negligence upto 100%. However in the facts and circumstances of the case the negligence is apportioned as 25% of the deceased Arvind Kumar Shukla and 75% of Yogesh Kumar.
39. It was stated that the deceased suffered fatal injuries to his body which resulted into his death. Even Yogesh had stated that due to the injury sustained by the driver of the car he had died at the spot. The post mortem report of the deceased Arvind Kumar Shukla is on record which shows the cause of death as shock and haemorrhage as a result of injuries sustained. Thus the deceased had sustained fatal injuries in the accident.
40. Yogesh Kumar had stated that he had sustained injuries in the accident and he had stated about being treated at Anand Hospital and thereafter at other hospitals. Even Ajay Kumar Mishra had stated that the driver of the motorcycle had sustained injuries in the accident. Thus it stands established that both Arvind Kumar Shukla and Yogesh Kumar had sustained injuries in the accident. Issue No.1 is decided accordingly in both the cases.
Neera Shukla Vs. Yogesh Kumar & Ors. Page No. 39 of 68 Suit No.229/14 Yogesh Kumar v Neera Shukla & Ors. Suit No. 226/14 Issue No.2
41. In T.O. Anthony v. Karvarnan & Ors., (2008) 3 SCC 748, it was held as under:
"6. 'Composite negligence' refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrongdoers, it is said that the person was injured on account of the composite negligence of those wrongdoers. In such a case, each wrongdoer is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrongdoer separately, nor is it necessary for the court to determine the extent of liability of each wrongdoer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence of the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence."
In the present cases as well though the deceased and the injured are both found to have contributed to the negligence the claim for compensation by the claimants is not defeated merely by reason of the negligence on the part of the Neera Shukla Vs. Yogesh Kumar & Ors. Page No. 40 of 68 Suit No.229/14 Yogesh Kumar v Neera Shukla & Ors.
Suit No. 226/14deceased or the injured but the compensation recoverable by the claimants would stand reduced in proportion to the contributory negligence of the deceased and the injured.
COMPENSATION IN SUIT No.229/14
42. The petitioners in suit No.229/14 (Neera Shukla v. Yogesh Kumar) are the legal representatives of the deceased Arvind Kumar Shukla being the wife and minor son of the deceased. It may be mentioned that the parents of the deceased Arvind Kumar Shukla were joined as proforma respondents No.5 and 6. However they neither appeared before the Tribunal nor any no objection was received from them in favour of the petitioners. As per the ratio of the judgment of the Hon'ble Supreme Court in Sarla Verma's case father cannot be regarded as a dependent and as such the respondent No.5 cannot be regarded as a dependent. In absence of any evidence to the contrary the respondent No.6 being the mother of the deceased would be regarded as dependent on him though she has been made only a proforma respondent in absence of any no objection from her in favour of the petitioners. PW1 Neera Shukla was cross examined on the point of dependency and during crossexamination by learned counsel for the respondents No.1 and 2 (Yogesh and Mukesh) PW1 stated that she is post graduate. She is not employed. Even during examination by the Tribunal Neera Shukla had stated that she is 37 years old and is a housewife. She Neera Shukla Vs. Yogesh Kumar & Ors. Page No. 41 of 68 Suit No.229/14 Yogesh Kumar v Neera Shukla & Ors.
Suit No. 226/14stated that she has only one son i.e. the petitioner No.2 and she stated that she was dependent on her husband for her livelihood. The petitioner No.2 is 9 years old and studying in class 4th. The petitioners have also placed on record the copy of the election identity card of the petitioner No.1 which is Ex.PW1/1 and copy of birth certificate of the petitioner No.2 which is Ex.PW1/2. As such both the petitioners being the wife and the minor son would be regarded as dependent on the deceased Arvind Kumar Shukla.
43. The petitioners have claimed loss of dependency on the basis that the deceased was working as Associate Professor of Economic and Business Policy in FORE School of Management. It was stated that due to the unfortunate accident the life of the deceased was cut short suddenly and it created void in the life of the petitioners and the petitioners No.1 and 2 had lost their sole bread winner who were dependant on the sole income of the deceased. It was stated that if the deceased had not met with the fatal accident he would have survived for not less than 75 years as per his family record where longevity exists. It was also stated that there were brilliant future prospects in the life / career of the deceased by virtue of his being endowed with special qualifications in the subject of Economics due to which he was promoted to the post of Assistant Professor in professional institute like IMT, Ghaziabad, as Deputy Director in CII for Economic Policy and Research and as an Associate Professor Economic and Business Policy in Fore School of Management, Delhi at a young age of 38 years. Throughout his academic Neera Shukla Vs. Yogesh Kumar & Ors. Page No. 42 of 68 Suit No.229/14 Yogesh Kumar v Neera Shukla & Ors.
Suit No. 226/14career the deceased had received various scholarships, awards, prizes etc and even after his retirement he had the prospect of being appointed as financial advisor in various sectors of not only the government but also in Multinational companies where he would have earned lakhs of rupees per month. The deceased had passed the UGC Test for being eligible to be appointed as Lecturer in Colleges/ Institutes. The deceased was qualified as an M. Phil in Economics from JNU and was entitled for Ph.D. from JNU, New Delhi. It was stated that the deceased joined as an Associate Professor of Economics and Business Policy in FORE School of Management vide appointment letter dated 22.4.2008 where he was drawing total salary of Rs.45,000/ per month which was his last drawn salary prior to his demise due to the accident.
44. PW1 in paras 8 to 15 of her affidavit Ex.PW1/A had deposed to that effect. She also stated that before the demise of the deceased the sixth pay commission had already become applicable with respect to the salary of Associate Professor as per the UGC Rules. She stated that on the basis of the sixth pay commission an advertisement was published by the employer of the deceased i.e. FORE School of Management on 6.5.2009 in The Times of India whereby it was revealed that as per the present UGC rules the present monthly salary of any Associate Professor, serving in any recognized University/ College/ affirmed institute was more than Rs.75,000/ along with other ancillary benefits which was maximum to the tune of Rs.93,294/ per Neera Shukla Vs. Yogesh Kumar & Ors. Page No. 43 of 68 Suit No.229/14 Yogesh Kumar v Neera Shukla & Ors.
Suit No. 226/14month and the deceased would have been entitled for such enhancement in his earnings had he not met with the accident. The petitioners have placed on record various documents showing the qualifications of the deceased and where he was working earlier.
45. During crossexamination by the learned counsel for the respondents No.1 and 2 (Yogesh and Mukesh) PW1 (Neera Shukla) stated that the deceased was an Associate Professor at Fore School of Management, Qutub Institutional Area. During crossexamination by the learned counsel for the respondent No.3 (IFFCO Tokio) PW1 denied the suggestion that the salary certificate of the deceased was forged and fabricated or that the deceased was earning Rs.45,000/ per month. She denied the suggestion that Ex.PW1/A and the documents attached in respect of education of deceased were forged and fabricated. Thus PW1 had reiterated that the deceased was an Associate Professor at Fore School of Management, Qutub Institutional Area.
46. In support of their case that the deceased was working with Fore School of Management and to prove what he was earning the petitioners had examined PW3 who produced the appointment letter dated 22.04.2008 of Arvind Kumar Shukla Ex.PW3/2 along with the joining report / consent given by Shri Arvind Kumar Shukla; chart showing details of salary and perks given to Arvind Kumar Shukla by the management along with the chart on the basis Neera Shukla Vs. Yogesh Kumar & Ors. Page No. 44 of 68 Suit No.229/14 Yogesh Kumar v Neera Shukla & Ors.
Suit No. 226/14of which the calculation had been made Ex.PW3/3; copy of the advertisement given on behalf of the Fore School of Management Ex.PW3/4, attested copy of letter dated 25.03.2009 Ex.PW3/5 and copy of the covering letter Ex.PW3/6. During cross examination by the learned counsel for the respondent No.3 (IFFCO Tokio) PW3 stated that he had not brought any identity proof in respect of his employment with Fore School of Management. He stated that he had not brought any Minutes of Meeting or Resolution in respect of authorizing Mr. Satish Kumar Midha, Chief Administrative Officer to issue any authority. He stated that he had been working since 1995. He had not brought any article of memorandum of association of the institute. Thus PW3 had not brought any identity proof in respect of his employment with Fore School of Management but there is also no reason to dispute the same.
47. During further crossexamination PW3 admitted that he had not placed any document in respect of deduction of Income Tax from the alleged salary. He admitted that the deceased was under probation for six months from the date of joining i.e. 01.05.2008. He stated that the salary as shown in Ex.PW1/6 was based on performance and increment, if any, was subject to his performance during his probation period and also confirmation subject to his performance. He admitted that the chart Ex.PW3/3 was not issued at the time of appointment. He admitted that he had brought the chart to help the deceased to get the compensation. He stated that he did not know whether any group personal accidental insurance on behalf of the institute was taken Neera Shukla Vs. Yogesh Kumar & Ors. Page No. 45 of 68 Suit No.229/14 Yogesh Kumar v Neera Shukla & Ors.
Suit No. 226/14with respect of Mr. Arvind Kumar Shukla. During his further cross examination he admitted that there is no personal accident policy in respect of Late Shri Arvind Kumar Shukla. He stated that otherwise the institute has a personal accident policy which is issued in favour of other faculty staff members. During cross examination conducted by respondent No.1 and 2 (Yogesh and Mukesh) PW3 denied the suggestion that he was deposing falsely to help the petitioner to claim exaggerated compensation.
48. It is thus seen that PW3 had stated that the institute had a personal accident policy issued in favour of other faculty staff members though he admitted that there was no personal accident policy in respect of Late Shri Arvind Kumar Shukla. Admittedly the deceased was under probation at the time of the accident. PW3 also admitted that the chart Ex.PW3/3 was not issued at the time of appointment and he had brought the chart to help the deceased to get the compensation. However there are other documents showing the salary payable to the deceased. PW3 stated that the salary as shown in Ex.PW1/6 was based on performance and increment, if any, was subject to his performance during his probation period and also confirmation subject to his performance. A perusal of Ex.PW1/6 shows that the salary of the deceased has been shown as Rs.47,802/ when the DA was 47% and Rs.55,719/ when the DA was 64%. The CTC per month was shown as Rs.71,729/. However it is settled law that only the basic pay, DP, DA, HRA and CCA are to be considered for computation of the income for the purpose of Neera Shukla Vs. Yogesh Kumar & Ors. Page No. 46 of 68 Suit No.229/14 Yogesh Kumar v Neera Shukla & Ors.
Suit No. 226/14loss of dependency. As such the adhoc 20% amount of Rs.3,480/ cannot be considered. Further when the petitioners had sought issuance of Form 16 in the letter dated 6.2.2014 it was stated that the DA applicable during the period was 54% and not 64% and as such the total CTC was Rs.68,902/ instead of Rs.71,729/. As such the income of the deceased is taken as Rs.49,629/ (17,400+8,700+14094+9135+300).
49. It was argued on behalf of IFFCO Tokio that in the evidence of PW3 it had been stated that the deceased was getting salary of more than Rs.25,000/ whereas per income tax rules where a person is drawing salary of more than Rs.35,000/ then TDS should have been deducted or he should have been filing the income tax return. It was argued that the exhibit shows the CTC of Rs.71,729/ but does not bear any date which had been prepared for this case only and if the deceased was getting such a high salary then the employer should have deducted TDS or the deceased should have filed income tax return. It was argued that the whole documents seem to have been prepared to help the deceased to get higher compensation and there was no truth in the documents filed by Fore School of Management. It was also argued that the deceased had not filed any income tax return except the solitary return, which was filed after the death and no reason was stated for the same. It was also argued that as the deceased contributed to the negligence upto 100% he was not entitled for any compensation. During cross examination PW3 had admitted that he had not placed any document in Neera Shukla Vs. Yogesh Kumar & Ors. Page No. 47 of 68 Suit No.229/14 Yogesh Kumar v Neera Shukla & Ors.
Suit No. 226/14respect of deduction of Income Tax from the alleged salary. It is settled law that the actual salary is the salary after deduction of income tax. None of the documents produced by PW3 show any deduction towards income tax. The petitioners at the stage of final arguments had placed on record Form 16 for the period 1.4.2008 to 31.3.2009. The same shows the salary of the deceased as Rs.1,45,314/ and deductible amount of Rs.9396/. The tax deducted at source has been shown as Rs.5180/. However the deceased had worked for only about 4 months in the said period prior to his death on 30.7.2008 so the tax cannot be taken as per the same. The income tax would work out to approximately Rs.4500/ per month. As such the income of the deceased is taken as Rs.45,000/ per month for the computation of loss of dependency.
50. It is the case of the petitioners that as per the matriculation certificate of the deceased, the date of birth of the deceased was 01.1.1970 thereby at the time of his demise he was 38 years old. The documents on record also show the date of birth of the deceased to be 1.1.1970. As such the deceased would have been more than 38 years old on the date of the accident i.e. 30.7.2008. As per the judgment of the Hon'ble Supreme Court in Sarla Verma's case the multiplier of 15 applies for calculating the loss of income where the age of the deceased is 36 to 40 years.
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Suit No. 226/14
51. As observed above the dependents on the deceased are his mother, wife and one minor son. As per the judgment of the Hon'ble Supreme Court in Sarla Verma's case as the number of dependents was 3 there would be 1/3rd deduction towards personal and living expenses.
52. As regards the future prospects it was argued on behalf of the petitioners that as per the salary record proved by PW3 on behalf of the employer of the deceased the last drawn monthly salary of the deceased was Rs.71,729/ per month on which 100% future prospect is to be added on the basis of the law laid down by the Hon'ble Supreme Court in 2013 (2) CLJ 760 titled as Vimal Kanwar & Ors. V. Kishore Das & Ors. wherein para 26 it had been held, on the basis of observation made by the Hon'ble Supreme Court in K.R. Madhusudan v. Administrative Officer (2011) 4 SCC that there can be departure from the rule of thumb laid down in Sarla Verma judgment in exceptional circumstances, in which the present case falls, with respect to determination of compensation by granting 100% increase in the income of the deceased. It was submitted that this view of the Hon'ble Supreme Court was also based on the judgment passed in New India Assurance Co. Ltd. v. Gopal and Ors. AIR 2012 SC 3381. It was also argued that the applicability of Ex.PW3/3 for the determination of compensation is based on the judgment of Hon'ble Supreme Court in Rajesh and Ors. v Rajbir Singh and Ors. (2013) 9 SCC 54 where it was held that where there was revision in pay subsequent to the death pursuant Neera Shukla Vs. Yogesh Kumar & Ors. Page No. 49 of 68 Suit No.229/14 Yogesh Kumar v Neera Shukla & Ors.
Suit No. 226/14to recommendation of the 6 th Pay Commission the revised pay is to be considered for determination of compensation. However in the instant case there is no reason to grant 100% increase in the income of the deceased. As per the case of the petitioners themselves the deceased served as an Assistant Professor in IMT, Raj Nagar, Ghaziabad for the period 23.10.2002 to 4.5.2007 and his last drawn monthly salary was Rs.43,346/. Thereafter he joined the Confederation of Indian Industry (CII) as Deputy Director where he was getting a similar monthly salary of Rs.45,000/ (approx.). He worked in Confederation of Indian Industries from June, 2007 to 25.4.2008. Thereafter the deceased joined as an Associate Professor of Economics and Business Policy in FORE School of Management vide appointment letter dated 22.4.2008 where he was drawing total salary of Rs.45,000/ per month which was his last drawn salary prior to his demise due to the accident. Thus it is seen that the rise in salary of the deceased was not substantial over the period prior to his demise so there is no reason to grant 100% increase in the income of the deceased. The present is not a case where an exception needs to be made from the principles laid down in Sarla Verma. The Hon'ble Supreme Court in Rajesh and Ors. v Rajbir Singh and Ors. held as under:
"11. Since, the Court in Santosh Devi's case (supra) actually intended to follow the principle in the case of salaried persons as laid in Sarla Verma's case (supra) and to make it applicable also to the selfemployed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30% always; it will also Neera Shukla Vs. Yogesh Kumar & Ors. Page No. 50 of 68 Suit No.229/14 Yogesh Kumar v Neera Shukla & Ors.Suit No. 226/14
have a reference to the age. In other words, in the case of self employed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an addition of 50% to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any. Addition should be 30% in case the deceased was in the age group of 40 to 50 years."
12.In Sarla Verma's case (supra), it has been stated that in the case of those above 50 years, there shall be no addition. Having regard to the fact that in the case of those selfemployed or on fixed wages, where there is normally no age of superannuation, we are of the view that it will only be just and equitable to provide an addition of 15% in the case where the victim is between the age group of 50 to 60 years so as to make the compensation just, equitable, fair and reasonable. There shall normally be no addition thereafter."
Thus the petitioners would be entitled to addition of 50% of the income towards future prospects as the deceased was less than 40 years of age. Accordingly the loss of dependency as per the monthly income i.e. Rs.45,000/ is calculated as under :
Rs.45,000/ + Rs.22,500/ (50% future prospects) = Rs.67,500 X 12 (annual) X 15 (multiplier) - 40,50,000 (1/3th towards personal expenses) = Rs.81,00,000/. As the contributory negligence of the deceased has been attributed to be 25% the loss of dependency would be Rs.60,75,000/.
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53. The petitioners are also entitled to compensation for loss of love and affection, loss of consortium, loss of estate and funeral expenses.
The total compensation is determined as under:
Loss of dependency : Rs.60,75,000/
Love and affection : Rs.50,000/
Loss of Consortium : Rs.50,000/
Loss of Estate : Rs.10,000/
Funeral expenses : Rs.10,000/
Total : Rs.61,95,000/
Thus, the total compensation would amount to Rs.61,95,000/. COMPENSATION IN SUIT No.226/14
54. It is the case of the petitioner Yogesh Kumar in suit No.226/14 that he had sustained injuries in the accident on 30.7.2008 for which he was still undergoing treatment. The law is well settled that the compensation has to be awarded in personal injury cases under the following heads: (1) for loss of earnings during the period of treatment (2) loss of future earnings on account of permanent disability (3) expenses suffered by him on his treatment, hospitalization, medicines, transportation, nourishing food etc. In addition, he is further entitled to nonpecuniary damages/general damages which include Neera Shukla Vs. Yogesh Kumar & Ors. Page No. 52 of 68 Suit No.229/14 Yogesh Kumar v Neera Shukla & Ors.
Suit No. 226/14(1) damages for pain, suffering and trauma as a consequence of injuries and (2) loss of expectation of life.
MEDICINES AND MEDICAL TREATMENT
55. The case of the petitioner is that after the accident on 30.7.2008 the injured / petitioner was taken to Anand Hospital, Garh Road, Meerut where the MLC was prepared and thereafter for treatment he went to various hospitals and was under treatment in Lok Nayak Hospital. The medical prescriptions of Anand Hospital, Lok Nayak Hospital discharge slips and prescriptions, G.B. Pant Hospital registration cards and prescription are Ex.PW1/1 (colly) (a few documents pertain to one Yogesh son of PN Singh which show fracture and do not appear to be in respect of the petitioner Yogesh) and medical bills are Ex.PW1/2 (colly). The said documents show that the petitioner had sustained abrasion on right leg on lateral aspect and on head and the treatment continued for head injuries which were diagnosed as calcified granuloma encephalomalacie changes and communicating hydrocephalous. The petitioner also remained admitted in hospital for various periods. Thus the injuries were serious in nature.
56. During crossexamination by learned counsel for the respondent No.2 (TATA AIG) PW1 stated that immediately after the accident he was firstly treated at Anand Hospital, Meerut. He was admitted in Anand Hospital by his Neera Shukla Vs. Yogesh Kumar & Ors. Page No. 53 of 68 Suit No.229/14 Yogesh Kumar v Neera Shukla & Ors.
Suit No. 226/14father. He was conscious when he was admitted in the hospital. He stated that his treatment continued in Anand Hospital for about two months. Thereafter he took further treatment from LNJP Hospital, New Delhi. He did not remember the date since when he took treatment from LNJP Hospital, however, as far as he remembered he took treatment from the said hospital from July 2008. He stated that his treatment continued in LNJP Hospital for about five years. The expenses of his treatment were borne by his father. He stated that there was expenditure of lacs of rupees on treatment however, he could not tell the exact amount. Thus PW1 had reiterated that he was first treated at Anand Hospital, Meerut where he was admitted by his father and he was conscious when he was admitted in the hospital. He stated that his treatment continued in Anand Hospital for about two months. Ex.PW1/2 shows that the petitioner was admitted in the hospital on 30.7.2008. There is however nothing to show that the petitioner was treated at Anand Hospital for about 2 months and documents till only 8.8.2008 are there. In fact there is a discharge slip which shows that the petitioner was admitted in LNJP Hospital, New Delhi on 18.8.2008 and he was discharged on 11.9.2008 though PW1 had stated that he did not remember the date since when he took treatment from LNJP Hospital, however, as far as he remembered he took treatment from the said hospital from July 2008. He stated that his treatment continued in LNJP Hospital for about five years and the expenses of his treatment were borne by his father. The petitioner has placed on record documents showing that the treatment was continuing in 2009, 2010 and 2011.
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Suit No. 226/14
57. PW1 had stated that there was expenditure of lacs of rupees on treatment however, he could not tell the exact amount. It cannot be disputed that the petitioner had sustained injuries and underwent treatment for the same. The petitioner has filed bills in respect of expenditure on medicines amounting to Rs.95,800/ approximately. Looking to the injuries the petitioner would be entitled to the amount of the medical bills. Further the petitioner would have incurred some expenditure towards medicines and medical treatment even during the subsequent period. As such an amount of Rs.1,00,000/ (Rs.One Lakh only) is awarded towards medicines and medical treatment including the amount of the bills.
PAIN AND SUFFERING AND LOSS OF AMENITIES OF LIFE
58. It has been held in Divisional Controller, K. S. R. T. C v Mahadeva Shetty and another AIR 2003 Supreme Court 4172 as under:
13."The damages for vehicular accidents are in the nature of compensation in money for loss of any kind caused to any person. In case of personal injury the position is different from loss of property. In the later case there is possibility of repair or restoration. But in the case of personal injury, the possibility of repair or restoration is practically nonexistent. In Parry V. Cleaver (1969 1 All. E. R. 555) Lord Morris stated as follows:
"To compensate in money for pain and for the physical consequences is invariably difficult, but...... no other process Neera Shukla Vs. Yogesh Kumar & Ors. Page No. 55 of 68 Suit No.229/14 Yogesh Kumar v Neera Shukla & Ors.Suit No. 226/14
can be devised than that of making monetary assessment."
The case of the petitioner is that after the accident on 30.7.2008 the injured / petitioner was taken to Anand Hospital, Garh Road, Meerut where the MLC was prepared and thereafter for treatment he went to various hospitals and was under treatment in Lok Nayak Hospital. The medical prescriptions of Anand Hospital, Lok Nayak Hospital discharge slips and prescriptions, G.B. Pant Hospital registration cards and prescription are Ex.PW1/1 (colly) (a few documents pertain to one Yogesh son of PN Singh which show fracture and do not appear to be in respect of the petitioner Yogesh) and medical bills are Ex.PW1/2 (colly). The said documents show that the petitioner had sustained abrasion on right leg on lateral aspect and on head and the treatment continued for head injuries which were diagnosed as calcified granuloma encephalomalacie changes and communicating hydrocephalous. The petitioner also remained admitted in hospital for various periods. Thus the injuries were serious in nature. There is however no document to show that the petitioner had suffered any disability. Looking at the nature of injuries and extent of treatment and that the accident pertains to the year 2008, the petitioner is awarded Rs.15,000/ (Rs.Fifteen Thousand only) for pain and suffering.
59. It was stated that the petitioner was around 32 years. The petitioner has placed on record copy of his election identity card Ex.PW1/3 which shows his age to be 24 years as on 1.1.2007 and copy of High School Certificate Neera Shukla Vs. Yogesh Kumar & Ors. Page No. 56 of 68 Suit No.229/14 Yogesh Kumar v Neera Shukla & Ors.
Suit No. 226/14Ex.PW1/4 which shows his date of birth to be 15.6.1979. As such the petitioner was more than 29 years on the date of the accident i.e. 30.7.2008. Notice can be taken of the fact that on account of injuries sustained by him the petitioner may not have been able to perform his day to day duties towards his family and on account of the injuries suffered by him the petitioner may not have been able to enjoy the amenities of life. In the circumstances the petitioner is awarded a sum of Rs.10,000/(Rs.Ten Thousand Only) for loss of amenities of life. The petitioner cannot however be held to be entitled to any amount towards disfiguration or loss of expectation of life. CONVEYANCE AND SPECIAL DIET
60. Although the petitioner has not filed any document on record in order to prove the expenditure on conveyance however, notice can be taken of the fact that after the accident the petitioner was taken to Anand Hospital, Garh Road, Meerut and thereafter he was taken to LNJP Hospital, Delhi and that after discharge from hospital he might have hired the services of private conveyance as he would not have been able to drive of his own or to use public conveyance. In the circumstances a sum of Rs.5,000/ (Rs.Five Thousand only) would be just and proper towards conveyance charges.
61. Although the petitioner has not proved that he was advised special diet but looking at the nature of injuries sustained by the petitioner notice can be Neera Shukla Vs. Yogesh Kumar & Ors. Page No. 57 of 68 Suit No.229/14 Yogesh Kumar v Neera Shukla & Ors.
Suit No. 226/14taken of the fact that the petitioner might have taken diet rich in protein, vitamins and minerals for speedier recovery. In the circumstances the petitioner is awarded a sum of Rs.5,000/ (Rs. Five Thousand only) for special diet.
62. The petitioner has not produced any evidence to show that he incurred any expenses towards attendant charges, however looking to the nature of injuries the petitioner would have incurred some expenditure on attendant charges and a sum of Rs.5000/ (for two months) is awarded towards attendant charges.
LOSS OF INCOME
63. It is the case of the petitioner that at the time of the accident he was taking private home tuitions and was earning Rs.12,000/ p.m. It was stated that he could not take home tuitions due to the accident for two years but was giving tuitions at his house only. During crossexamination by learned counsel for Neera Shukla PW1 (Yogesh) stated that he possesses degree of B.Com. He denied the suggestion that he was not earning a sum of Rs.12,000/ pm as stated in para 5 of his affidavit. During his cross examination conducted on behalf of IFFCO Tokio (in suit No.229/14) Yogesh stated that he had not filed any document regarding his income as stated in para 5 of his affidavit. He denied the suggestion that he was not conducting tuition classes and he was Neera Shukla Vs. Yogesh Kumar & Ors. Page No. 58 of 68 Suit No.229/14 Yogesh Kumar v Neera Shukla & Ors.
Suit No. 226/14not earning any amount from the same, hence, he had not filed any document to that effect.
64. During crossexamination by learned counsel for the respondent No.2 (TATA AIG) PW1 stated that he was conducting tuition classes for about 2025 children. He was conducting tuition classes for children of 6 th to 8th standard. He used to charge Rs.200/ pm from each child as tuition fee. Thus the petitioner had reiterated that he was taking tuitions at the time of the accident. However he has not filed any document to show that he was indeed taking tuitions or that he was earning Rs.12,000/ p.m. and even no evidence has been produced in that regard. In fact during examination by the Tribunal Yogesh had stated that at the time of the accident he was taking tuitions and he was earning Rs.5000/ p.m. He had stated that at present he was not doing anything. PW1 had stated that he could not take home tuitions for 2 years. However there is nothing to suggest the same and he had himself stated that he used to take tuitions at his home. He has not even stated what was the loss of income suffered by him on that account. Moreover if he is not doing anything at present it cannot be said that it was on account of the injuries sustained in the accident. There is also nothing to show that he was advised bed rest for two years or he remained on bed rest for two years. There is thus no document to show the income of the petitioner. He has however placed on record copy of his B.Com Final Year Marksheet Ex.PW1/6 which shows that he had done graduation.
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65. There is also nothing to show that the petitioner had suffered any disability on account of the injuries. The petitioner has not proved that he acquired any disability on account of the accident or he is likely to suffer future loss of income on account of the injuries sustained in the accident and that the injuries would reduce his efficiency to work and thereby he would suffer loss of future income. The petitioner has also not filed any advice of the doctor by which he was prescribed rest for any specific period. In the absence of any advice of doctor, notice can be taken of the fact that petitioner may not have been able to perform his avocation for some period. Hence, the petitioner is held entitled only to an amount of Rs.10,000/ consolidated on account of loss of income including for the period he may not have been able to work. The total compensation is assessed as under:
Medicines and Medical treatment Rs.1,00,000/ Pain and suffering Rs.15,000/ Loss of Amenities of life Rs.10,000/ Conveyance Rs.5,000/ Special Diet Rs.5,000/ Attendant charges Rs.5,000/ Loss of Income Rs.10,000/ TOTAL Rs.1,50,000/
However as his contributory negligence has been apportioned as 75% he would be entitled to only Rs.37,500/ as compensation.
Neera Shukla Vs. Yogesh Kumar & Ors. Page No. 60 of 68 Suit No.229/14 Yogesh Kumar v Neera Shukla & Ors.
Suit No. 226/14RELIEF IN SUIT No.229/14
66. The petitioners are awarded a sum of Rs.61,95,000/ (Rs.Sixty one lacs Ninety five thousand only) alongwith interest @ 7.5% per annum in view of the decision in Rajesh and others v. Rajbir Singh and others, 2013 ACJ 1403, from the date of filing of the petition till its realization including, interim award, if any already passed against the respondents and in favour of the petitioners. The respondent No.6 though she had not appeared before the Tribunal would be entitled to 20% share in the awarded amount which amount is directed to be kept in FDR in UCO Bank, Patiala House and the respondent No.6 would be at liberty to withdraw the same after taking appropriate steps. The petitioner No.2 Master Adesh Kumar Shukla would also be entitled to 20% share in the awarded amount and the petitioner No.1 Smt. Neera Shukla would be entitled to 60% share in the awarded amount.
67. For safeguarding the compensation amount from being frittered away by the claimants, directions have been given by Hon'ble Supreme Court for preserving the award amount in the case of Jai Prakash Vs. National Insurance Co. Ltd. and Others (2010) 2 Supreme Court Cases 607. In view of the directions contained in the above judgment the award amount is to be disbursed as follows:
Neera Shukla Vs. Yogesh Kumar & Ors. Page No. 61 of 68 Suit No.229/14 Yogesh Kumar v Neera Shukla & Ors.
Suit No. 226/14
a) The entire share of the petitioner No.2 be kept in FDR till he attains the age of majority and for 3 years thereafter. 20% of the share of the petitioner No.1 be released to her by transferring it into her savings account and remaining amount out of her share be kept in FDRs in UCO Bank, Patiala House Court, New Delhi in the following manner:
1. Fixed deposit in respect of 10% for a period of one year.
2. Fixed deposit in respect of 10% for a period of two years.
3. Fixed deposit in respect of 10% for a period of three years.
4. Fixed deposit in respect of 10% for a period of four years.
5. Fixed deposit in respect of 10% for a period of five years.
6. Fixed deposit in respect of 10% for a period of six years.
7. Fixed deposit in respect of 10% for a period of seven years.
8. Fixed deposit in respect of 10% for a period of eight years.
b)The respondent No.3 (IFFCO Tokio) is directed to deposit the amount directly by way of crossed cheque in terms of the above order in UCO Bank, Patiala House Court, New Delhi in the name of UCO Bank, Patiala House Court, New Delhi A/c Neera Shukla, Adesh Kumar Shukla and Subhawati Shukla within 30 days of the passing of the award.
c) Cheque be deposited within thirty days herefrom under intimation to the petitioners. In case of default, the respondent No.3 shall be liable to pay Neera Shukla Vs. Yogesh Kumar & Ors. Page No. 62 of 68 Suit No.229/14 Yogesh Kumar v Neera Shukla & Ors.
Suit No. 226/14further interest @ 12% per annum for the period of delay.
d) On the deposit of the award amount, the Branch Manager of UCO Bank, Patiala House Court, New Delhi is directed to prepare Fixed Deposit Receipts as ordered above and the balance amount be released to the petitioner No.1.
e) The interest on the fixed deposits shall be paid monthly by automatic credit of interest in the saving accounts of the petitioners.
f) The withdrawal from the aforesaid account shall be permitted to the petitioners and the respondent No.6 after due verification and the bank shall issue photo identity cards to the petitioners to facilitate their identity.
g) No cheque book shall be issued to the petitioners without the permission of the court.
h) The original fixed deposit receipts shall be retained by the bank in safe custody. However, the original pass books shall be given to the petitioners along with the photocopy of the fixed deposit receipts. Upon the expiry of period of FDR the bank shall automatically credit the maturity amount in the saving account of the beneficiary.
Neera Shukla Vs. Yogesh Kumar & Ors. Page No. 63 of 68 Suit No.229/14 Yogesh Kumar v Neera Shukla & Ors.
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i) The original fixed deposit receipts shall be handed over to the petitioners on the expiry of the period of the fixed deposit receipts.
j) No loan, advance, or withdrawal shall be allowed on the said FDRs without the permission of the court.
k) On the request of the petitioners, the bank shall transfer the saving account to any other branch/bank, according to the convenience of the petitioners.
l) The petitioners shall furnish all the relevant documents for opening of the saving bank account and Fixed Deposit to Senior Manager of UCO Bank, Patiala House Court, New Delhi.
68. The petitioners shall file two sets of photographs along with their specimen signatures, out of which one set to be sent to the Nodal Officer, UCO Bank, Patiala House Court, New Delhi along with copy of the award by Nazir and the second set be retained to the court for further reference. The photographs be stamped and sent to the bank. The petitioners shall also file the proof of residence and furnish the details of the bank account with the Nazir within a week. The petitioners shall file their complete address as well as address of their counsel for sending the notice of deposit of the award amount.
Neera Shukla Vs. Yogesh Kumar & Ors. Page No. 64 of 68 Suit No.229/14 Yogesh Kumar v Neera Shukla & Ors.
Suit No. 226/14RELIEF IN SUIT No.226/14
69. The petitioner Yogesh is awarded a sum of Rs.37,500/ (Rs.Thirty seven thousand five hundred only) alongwith interest @ 7.5% per annum in view of the decision in Rajesh and others v. Rajbir Singh and others, 2013 ACJ 1403, from the date of filing of the petition till its realization including, interim award, if any already passed against the respondents and in favour of the petitioner. The entire amount be released to the petitioner. APPORTIONMENT OF LIABILITY IN SUIT No.229/14
70. The respondent No.1 Yogesh is the driver of the motorcycle No.UP 14AK2138, respondent No.2 is the owner and respondent No.3 being the insurer are held jointly and severally liable. No evidence has been led on behalf of the respondent No.3 inspite of opportunities. Respondent No.3 i.e. IFFCO Tokio General Insurance Company Limited being the insurance company in its written statement had admitted that the motorcycle was insured with it by insurance policy No.39551358 for the period 27.07.2008 to 26.7.2009. 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. Hence, the respondent No.3 being the insurance company is liable to pay the compensation on behalf of the respondents No.1 and 2. Respondent No.3 being the insurer is directed to deposit the award amount within 30 days with Neera Shukla Vs. Yogesh Kumar & Ors. Page No. 65 of 68 Suit No.229/14 Yogesh Kumar v Neera Shukla & Ors.
Suit No. 226/14interest at the rate of 7.5% from the date of filing of the petition till its realization.
APPORTIONMENT OF LIABILITY IN SUIT No.226/14
71. The respondent No.1 Neera Shukla is the wife of the deceased driver of car No.DL9CG4280, respondent No.2 (TATA AIG) is the insurer in respect of the car and respondent No.3 (IFFCO Tokio) is the insurer of the motorcycle driven by the petitioner. Thus the respondents No.1 and 2 are held jointly and severally liable. No evidence has been led on behalf of the respondent No.2 inspite of opportunities. Respondent No.2 i.e. TATA AIG General Insurance Company Limited being the insurance company in its written statement had admitted that the car was insured with it by insurance policy No.0100273108 for the period 20.08.2007 to 19.8.2008. There is no evidence on behalf of respondent No.2 to show that there was any violation of the rules and terms of policy by the respondent. An application was filed on behalf of the respondent No.2 for deletion of its name from the array of parties. However in view of the findings above the respondent No.2 is not liable to be deleted from the array of parties. Hence, the respondent No.2 being the insurance company in respect of the car is liable to pay the compensation on behalf of the respondent No.1. Respondent No.2 being the insurer is directed to deposit the award amount within 30 days with interest at the rate of 7.5% from the date of filing of the petition till its realization. The insurer/respondent No.2 shall deposit the award Neera Shukla Vs. Yogesh Kumar & Ors. Page No. 66 of 68 Suit No.229/14 Yogesh Kumar v Neera Shukla & Ors.
Suit No. 226/14amount directly in the bank account of the claimant at UCO Bank, Patiala House Court, New Delhi within 30 days of the passing of the award failing which it is liable to pay interest at the rate of 12% per annum for the period of delay. The petitioner shall file two sets of photographs along with his specimen signatures, out of which one set to be sent to the Nodal Officer, UCO Bank, Patiala House Court, New Delhi along with copy of the award by Nazir and the second set be retained to the court for further reference. The photographs be stamped and sent to the bank. The petitioner shall also file the proof of residence and furnish the details of the bank account with the Nazir within a week. The petitioner shall file his complete address as well as address of his counsel for sending the notice of deposit of the award amount.
72. Nazir to report in case the cheques are not deposited within 30 days of the passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself. The insurers shall deposit the award amount along with interest upto the date of notice of deposit to the claimants with a copy to their counsels and the compliance report shall be filed in the court along with proof of deposit of award amount, the notice of deposit and the calculation of interest on 20.8.2014.
An attested copy of the award be given to the parties (free of cost). A copy of the award be also sent to the Nodal Officer, UCO Bank, Patiala House Court, New Delhi.
Neera Shukla Vs. Yogesh Kumar & Ors. Page No. 67 of 68 Suit No.229/14 Yogesh Kumar v Neera Shukla & Ors.
Suit No. 226/14Copy of judgment be placed in suit No.229/14 and 226/14. Files be consigned to record room.
Announced in open court
on this 16h day of May, 2014 (GEETANJLI GOEL)
PO: MACT2
New Delhi
Neera Shukla Vs. Yogesh Kumar & Ors. Page No. 68 of 68
Suit No.229/14
Yogesh Kumar v Neera Shukla & Ors.
Suit No. 226/14