Delhi District Court
Chameli Devi & Ors. vs . Shree Kant & Ors. on 2 February, 2019
Chameli Devi & Ors. vs. Shree Kant & Ors.
IN THE COURT OF SH. SAMEER BAJPAI : PRESIDING OFFICER : MACT
SOUTH DISTRICT : SAKET COURT: NEW DELHI
Petition No. : 76002/16
1) Chameli Devi ..... Wife
2) Master Prashant ..... Son
3) Sadhna ..... Daughter
4) Vrajrani ..... Mother
(Petitioner no.2 and 3 are minors
being represented through their mother
i.e. petitioner no.1)
All R/o Vill. Karnapur, PostKaror,
Pilibhit, Uttar Pradesh
..... Petitioners
Versus
1. Shree Kant
S/o Sh. Babu Ram
R/o Vill. Jaunapuri,
Distt. Pilibhit, Uttar Pradesh ..... Driver cum Owner
2. The Oriental Insurance Co. Ltd.
D80, Malviya Nagar,
New Delhi - 110 017 ..... Insurance Company
.......Respondents
Date of Institution : 03.09.2016
Date of reserving of judgment/order : 02.02.2019
Date of pronouncement : 02.02.2019
Petition No. : 76002/16 Page No.1/14
Chameli Devi & Ors. vs. Shree Kant & Ors.
JUDGMENT:
1. By this judgment I shall dispose of the claim petition filed by the petitioners for the fatal injuries sustained by Om Prakash in a road accident on 11.07.2016 at about 5.00 p.m. near Gajraula Kalan within the jurisdiction of police station Gajraula, Pilibhit due to rash and negligent driving of vehicle bearing no. UP 26 Q 9390 by respondent no.1, owned by respondent no.1 and insured with respondent no.2.
2. In its written statement respondent no.1 denied the averments made by the petitioners in their petition.
3. In its written statement respondent no.2/insurance company submitted that the present claim petition is not maintainable as the petitioners are residents of Pilibhit, Uttar Pradesh. Further, the respondent no.1 is also a resident of Pilibhit Uttar Pradesh. Moreover, the accident had occurred in Pilibhit, Uttar Pradesh. Even, the insurance policy of the alleged vehicle was also issued from its branch office at Pilibhit, Uttar Pradesh. It further stated that the accident took place on 11.07.2016 whereas the brother of the deceased informed the police only on 06.08.2016 i.e. after more than 25 days and the police registered the FIR on 06.08.2016.
4. From the pleadings of the parties following issues were framed vide order dated 17.04.2015 :
Petition No. : 76002/16 Page No.2/14Chameli Devi & Ors. vs. Shree Kant & Ors.
1. Whether this Tribunal has territorial jurisdiction to try and entertain the present claim petition?
2. Whether Om Prakash sustained fatal injuries in a road accident which occurred on 11.07.2016 at about 5.00 a.m. near Gajraula Kalan, U.P. due to rash and negligent driving of vehicle bearing no. UP 26 Q 9390 by the respondent no.1, owned by respondent no.1 and insured with respondent no.2?
3. To what amount of compensation, the petitioners are entitled and from whom?
4. Relief.
5. In evidence, petitioner Chameli Devi, wife of the deceased examined herself as PW1. She tendered in evidence her affidavit Ex.PW1/A and relied upon the documents Ex.PW1/1 (colly.) to Ex.PW1/11.
6. Eyewitness Pappu was examined as PW2.
7. Sh. Janki Prasad, Manager, Mahatma Gautam Budh Gyan Mandir was examined as PW3. He brought the salary record of the deceased Ex.PW3/B (colly.) and registration certificate of the school Ex.PW3/C.
8. Respondents did not examine any witness.
9. I have heard arguments and perused the record. My issuewise findings are as under :Petition No. : 76002/16 Page No.3/14
Chameli Devi & Ors. vs. Shree Kant & Ors.I S S U E No. 1
10. There is not much to discuss in this issue as in Malti Sardar vs. National Insurance Co. Ltd. & Ors., the Hon'ble Supreme Court of India has held that jurisdiction can be invoked at a place where the office of insurance company situates. In the case in hand the office of the insurance company is within the territorial jurisdiction of this Tribunal.
Hence, this Tribunal has territorial jurisdiction to try the present matter.
This issue is decided in favour of petitioners and against the respondents.
I S S U E No. 211. It is well settled law that where petition under Section 166 of the Act is instituted, it becomes the duty of the petitioner to establish rash and negligent driving by the driver. In a petition under Motor Vehicles Act, Tribunal need not go into the technicality because strict rules of procedure and evidence are not followed. Basically, in road accident cases, Tribunal has simply to quantify the compensation which is just rational and reasonable on the basis of enquiry. Though it is an admitted legal position that the negligence on the part of driver with respect to the use of vehicle needs to be established but the same is to be established on the principles of preponderance of probabilities as decided in New India Assurance Co. Ltd. vs. Harsh Mishra & Ors. III(2015) ACC 435 Delhi.
PW2 Pappu stated that he is an eyewitness of the accident which had occurred on 11.07.2016 at about 5.00 p.m. He further Petition No. : 76002/16 Page No.4/14 Chameli Devi & Ors. vs. Shree Kant & Ors.
stated that the accident occurred at Gajraula Kalan. The deceased was going on foot on the road on his left side, in the meantime, a Hero Honda Motorcycle bearing no. UP 26 Q 9390 came and hit the deceased from behind. He further stated that the accident had occurred due to sole rashness and negligence of the motorcyclist. The deceased after the impact fell down on the road and the motorcyclist ran away from the spot after the accident. Some public persons gathered on the spot. He further stated that thereafter, he left the spot of accident. His statement was later on recorded by the police.
During crossexamination he stated that on the day of accident, he went to his sister's home at Gajraula Kalan. The accident took place at Gajraula Kalan at Puranpur road. He further stated that the residents of Gajraula Kalan informed him about his presence on the spot of accident, since, he regularly visits Gajraula Kalan where his sister is residing. As per the site plan, the deceased was going on the extreme left side of the road and the alleged motorcycle hit him from behind. Hitting from behind perse amounts to negligence unless explained otherwise. Charge sheet has been filed against the respondent no.1. Therefore, in view of the above discussion, it is established on record that Om Prakash sustained fatal injuries in a road accident on 11.07.2016 at about 5.00 a.m. near Gajraula Kalan, U.P. due to rash and negligent driving of vehicle bearing no. UP 26 Q 9390 by the respondent no.1, which was owned by respondent no.1 and insured with respondent no.2.
Therefore, this issue is decided in favour of petitioners and against the respondents.
Petition No. : 76002/16 Page No.5/14Chameli Devi & Ors. vs. Shree Kant & Ors.
I S S U E No. 312. Admittedly, deceased Om Prakash died because of the injuries suffered by him in the accident which occurred due to the negligence of respondent no.1. Hence, the LRs of deceased are entitled for compensation for the financial loss suffered by them on account of the death of Om Prakash. The petitioners being the legal representatives of the deceased, shall be entitled for the following reliefs as per the law discussed in National Insurance Co. Ltd. vs. Pranay Sethi & Ors. decided in Special Leave Petition Civil no. 25590 of 2014 wherein the extent of the claim under different heads was discussed in detail and it was held that following amounts shall be considered as just and reasonable award under the following heads : Sl. No. Head Amount (in Rs.) 1 Loss of consortium 40,000/ 2 Funeral Expenses 15,000/ 3 Loss of Estate 15,000/ As far as the head of Loss of Dependency is concerned, same is to be calculated as per the multiplier method which has been adopted as a thumb rule in Sarla Verma vs. DTC [2009 (6) Scale 129] and various other judgments, unless there are exceptional circumstances which make it necessary to depart from the said rule. Further, in the judgment titled as National Insurance Co. Ltd. vs. Pranay Sethi & Ors. (Supra) it has been concluded by the Hon'ble Supreme Court that in determination of the multiplicand the deduction for personal and living expenses the Tribunals shall be guided by the Petition No. : 76002/16 Page No.6/14 Chameli Devi & Ors. vs. Shree Kant & Ors.
law as laid in Sarla Verma's case. Admittedly, the deceased was married, who left behind his wife, two children and old aged mother as his legal heirs. As the deceased was married, it is the age of deceased which is to be taken for deciding the multiplier applicable. As per the High School Certificate, the date of birth of the deceased was 12.07.1975. The accident took place on 11.07.2016, so, he was 41 years of age at the time of accident. Hence, the applicable multiplier would be '14'.
PW1 stated that the deceased was her husband he was working as a Principal in Mahatma Gautam Budh Gyan Mandir, Suhas Road, Pipiria Bhaja, Pilibhit, Uttar Pradesh and was earning Rs. 15,000/ p.m. PW3 had brought the salary record of the deceased for the period from April, 2015 to July, 2016 Ex.PW3/B (colly.) (OSR). He also brought the registration certificate of the school Ex.PW3/C (OSR). He had proved the certificate dated 25.07.2016 Ex.PW1/2 issued by him to the family of the deceased which bears his signature. He further stated that the deceased was working in their school as a Principal and was drawing salary of Rs. 15,000/ p.m. He further stated that the deceased was a permanent employee of their school and had joined the school in the year 2008 as a teacher. Then he was promoted to the post of Principal in the year 2010 at a salary of Rs. 12,000/, thereafter, his salary was increased to Rs. 15,000/ p.m. in the year 2014. He further stated that if the deceased had been alive, he would have got increment in his salary.
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During crossexamination he stated that their school is recognized by the District Primary Education Officer, Pilibhit from 2008. He further stated that the deceased was paid salary in cash. The record of his salary was maintained in the salary register. He further stated that there is no age limit of superannuation and the person can work as long as he is fit to serve.
As per salary Ex.PW1/2 the salary of the deceased was Rs.12,500/ p.m. plus Rs.2,500/ p.m. as monthly allowance, therefore, his salary was Rs.15,000/ p.m. PW3 has also brought the salary register of the teachers of the school as per which his name was also shown at serial number 01. Therefore, the Tribunal is satisfied that the deceased was getting Rs. 15,000/ p.m. at the time of accident. Therefore, the annual income of the deceased comes to Rs.1,80,000/ (Rs.15,000 x 12). Hon'ble Supreme Court in National Insurance Co. Ltd. vs. Pranay Sethi & Ors. (supra) has held that future prospects have to be considered for calculating the loss of income.
7. The conclusions in Pranay Sethi (supra) are summarised (in para 61) and may be extracted, to the extent relevant here, as under : 61 (iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.
Hon'ble High Court of Delhi has therefore, made it amply clear that in cases where the Tribunal is considering minimum wages, future Petition No. : 76002/16 Page No.8/14 Chameli Devi & Ors. vs. Shree Kant & Ors.
prospects must be considered. The deceased was above 40 years of age and therefore, an addition of 30% as future prospects has to be made. After adding future prospects, the income of the deceased comes to Rs.2,34,000/ (1,80,000 + 1,80,000 x 30/100). There are four petitioners on record i.e. wife, minor son and daughter of the deceased and old aged mother. Therefore, onefourth is to be deducted towards personal and living expenses. After deduction, the income of the deceased comes to Rs.1,75,500/. Thus, the loss of dependency comes to Rs.24,57,000/ (Rs.1,75,500 x 14). I therefore, award Rs. 24,57,000/ to the petitioners towards loss of dependency.
13. In view of the decision on above mentioned issues, the total compensation in favour of the petitioners is calculated as under : LOSS OF DEPENDENCY = Rs. 24,57,000/ LOSS OF CONSORTIUM = Rs. 40,000/ FUNERAL EXPENSES = Rs. 15,000/ LOSS OF ESTATE = Rs. 15,000/ ============ TOTAL = Rs. 25,27,000/ ============ LIABILITY
14. As the offending vehicle was being driven by respondent no. 1, primary liability to compensate the petitioners is of respondent no. 1. Since the vehicle was owned by respondent no.1, he becomes vicariously liable to compensate the petitioners. It is an admitted position on record that the vehicle was insured with respondent no. 2, therefore, respondent no. 2 becomes contractually liable to compensate the petitioners for the above mentioned amount.
Petition No. : 76002/16 Page No.9/14Chameli Devi & Ors. vs. Shree Kant & Ors.
RELIEF
15. In view of my findings on the issues, I award a sum of Rs. 25,27,000/ (Rs. Twenty Five Lakh Twenty Seven Thousand only) to the petitioners as compensation alongwith interest @ 9% per annum from the date of filing the petition till realization of the amount.
: RELEASE OF THE AWARDED AMOUNT : In the share of Petitioner no. 1 (Wife of the deceased)
16. A sum of Rs.15,27,000/ alongwith the proportionate interest is awarded to the petitioner no. 1 being wife of the deceased. Out of this amount, an amount of Rs. 15,00,000/ is directed to be kept in the form of fixed deposit in the following phased manner :
1. Rs. 1,00,000/ for a period of 01 year.
2. Rs. 1,00,000/ for a period of 02 years.
3. Rs. 1,00,000/ for a period of 03 years.
4. Rs. 1,00,000/ for a period of 04 years.
5. Rs. 1,00,000/ for a period of 05 years.
6. Rs. 1,00,000/ for a period of 06 years.
7. Rs. 1,00,000/ for a period of 07 years.
8. Rs. 1,00,000/ for a period of 08 years.
9. Rs. 1,00,000/ for a period of 09 years.
10. Rs. 1,00,000/ for a period of 10 years.
11. Rs. 1,00,000/ for a period of 11 years.
12. Rs. 1,00,000/ for a period of 12 years.
13. Rs. 1,00,000/ for a period of 13 years.
14. Rs. 1,00,000/ for a period of 14 years.
15. Rs. 1,00,000/ for a period of 15 years.Petition No. : 76002/16 Page No.10/14
Chameli Devi & Ors. vs. Shree Kant & Ors.
In the share of Petitioner no. 2 and 3 (Minor children son of the deceased)
17. A sum of Rs. 3,00,000/ each alongwith the proportionate interest is awarded to the petitioner no.2 and 3 being minor children of the deceased. This amount is directed to be kept in the form of fixed deposit till they attain the age of 18 years.
In the share of Petitioner no. 4 (Mother of the deceased)
18. A sum of Rs.4,00,000/ alongwith the proportionate interest is awarded to the petitioner no.4 being mother of the deceased. Out of this amount, an amount of Rs. 3,00,000/ is directed to be kept in the form of fixed deposit in the following phased manner :
1. Rs. 1,00,000/ for a period of 01 year.
2. Rs. 1,00,000/ for a period of 02 years.
3. Rs. 1,00,000/ for a period of 03 years.
Deposition of awarded amount with STATE BANK OF INDIA, Saket Court Branch, New Delhi.
19. In consonance to the idea conceptualized and formulated in various land mark judgments of our own Hon'ble High Court, by which part of the awarded amount is ordered to be kept in fixed deposit / savings account by Hon'ble high Court, respondent no.2 is directed to deposit the awarded amount in favour of the petitioners with State Bank of India, Saket Courts Complex Branch, against account of petitioners within a period of 30 days from today, failing which the respondent no.2 shall be liable to pay future interest @ 12% per annum till Petition No. : 76002/16 Page No.11/14 Chameli Devi & Ors. vs. Shree Kant & Ors.
realization (for the delayed period).
20. The respondent no. 2 is directed to credit the amount directly to the MACT account of State Bank of India, District Court, Saket branch. Details of the bank i.e. IFSC code etc. have been provided to the ld. counsel for the insurance company.
21. Upon the aforesaid amount being deposited, the State Bank of India, Saket Court Complex, New Delhi, is directed to keep the awarded amount in the "fixed deposit / saving account'' in the following manner:
1. The interest on the fixed deposit be paid to the petitioners / claimants by Automatic Credit of interest of their saving bank accounts with State Bank of India, Saket Court Branch, New Delhi.
2. Withdrawal from the aforesaid account shall be permitted to claimants / petitioners after due verification and the Bank shall issue photo identity Card to claimants / petitioners to facilitate identity.
3. No cheque book be issued to claimants / petitioners without the permission of this Court.
4. The original fixed deposit receipts shall be retained by the Bank in safe custody. However, the original Pass Book shall be given to the claimants/petitioners alongwith the photocopy of the FDRs .
5. The original fixed deposit receipts shall be handed over to claimants / petitioners at the end of the fixed deposit period.
6. No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the permission of this Court.
7. Half yearly statement of account be filed by the Bank in this Court.
8. On the request of claimants / petitioners, the Bank shall transfer the Savings Account to any other branch of State Bank of India, according to their convenience.
Petition No. : 76002/16 Page No.12/14Chameli Devi & Ors. vs. Shree Kant & Ors.
9. Claimants / petitioners shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit Account to Branch Manager, State Bank of India, Saket Courts Complex Branch, New Delhi.
10. The bank is also directed to get the nomination form filled by the claimants at the time of preparation of FDRs.
11. The bank is also directed to keep the money received from the respondent no.2 in an FDR in the name of the bank till the FDRs are prepared in the name of the claimants, so that the benefit of better interest may be given to the claimants for the said period.
12. The Manager, State Bank of India, District Court Saket branch is directed not to release any amount to the petitioners from this branch, unless ordered by the Tribunal in terms of the order of the Hon'ble High Court in FAO No. 842/2003 and CM Applications No. 32859/2017, 4112541127/2017 in Rajesh Tyagi & Ors. vs. Jaibir Singh & Ors. dated 09.03.2018. It is made clear that the amount including the maturity amount of the FDRs shall be released to the petitioner through RTGS/ NEFT directly in the personal bank account of the petitioners of the bank nearest to their place of residence, the details of which have been given by the petitioners to the Tribunal and same details shall be given by them to the Manager SBI, District Court Saket branch.
DIRECTIONS FOR THE RESPONDENT NO. 222. The respondent no. 2 is directed to file compliance report of its having deposited the awarded amount with State Bank of India, Saket Court Branch in this Tribunal within a period of 30 days from today.
23. The respondent no.2 shall intimate the claimants / petitioners about their having deposited the cheques in favor of the petitioners in terms of the award, at the address of the petitioners mentioned at the title of Petition No. : 76002/16 Page No.13/14 Chameli Devi & Ors. vs. Shree Kant & Ors.
the award, so as to facilitate them to withdraw the same.
24. Copy of this award / judgment be given to the parties for compliance.
25. The case is now fixed for compliance by the insurance company for 02.03.2019. Digitally signed by SAMEER BAJPAI SAMEER Date:
BAJPAI 2019.02.05
16:32:33
+0530
Announced in the Open Court
on 02nd day of February, 2019 (SAMEER BAJPAI)
Presiding Officer : MACT
South Distt. : Saket Courts
New Delhi
Petition No. : 76002/16 Page No.14/14