Delhi District Court
Smt. Kumud W/O. Late Sh. Pawan Singh ... ... vs Jiwan Lal S/O. Sh. Suram Chand on 25 January, 2017
IN THE COURT OF
MS. RAVINDER BEDI, PRESIDING OFFICER,
MOTOR ACCIDENT CLAIMS TRIBUNAL : EAST DISTRICT :
KARKARDOOMA COURTS : DELHI
MAC Petition No.: 11537 OF 2016
Unique Case I.D. No.: 02402C0 047512015
1. Smt. Kumud W/o. Late Sh. Pawan Singh ... WIFE
2. Kirti Sisodia D/o Late Sh. Pawan Singh
3.Master Kshitij Sisodia S/o. Late Sh. Pawan Singh ... CHILDREN
All R/o. 4/28, Shastri Gali, Vishwas Nagar,
Shahadra, Delhi.
Also At
Village Chaura Shadatpur,
Sector - 22, Noida,
Gautam Budh Nagar, UP. ... PETITIONERS
VERSUS
1. Jiwan Lal S/o. Sh. Suram Chand, ... DRIVER
2. Sh. Suram Chand, S/o. Late Sh. Churoo ... OWNER
Both R/o. Village & PS Chandrakot,
Kunfer, Ramban Udhampur, J & K.
Also At :
Pratap Transport Company,
Near Bakra Mandi, Ghazipur, Delhi.
3. M/s. Bajaj Allianz General Insurance Co. Ltd.
Off. At : 2nd Floor, DLF Industrial Area,
Moti Nagar, New Delhi. ... INSURER
... RESPONDENTS
Represented by :Mr. Vipin Kumar, Counsel for Petitioners.
Mr. Shiv Kumar, Counsel for Respondents no. 1 &
2. Mr. M. Awasthi, Counsel for Respondent no. 3.
Date of institution : 24.08.2013
Reserved for orders : 24.01.2017
MAC NO.:11537/16 KUMUD VS. JIWAN LAL & ORS. PAGE NO.:14/12
Date of Award : 25.01.2017
A W A R D
1. The Petitioners have filed the present Petition U/s 166 & 140 of Motor Vehicles Act claiming compensation on account of fatal injuries suffered by Pawan Singh in the road accident dated 30.07.2013.
2. The requisite facts to be exposited for adjudication of the petition are that on 30.07.2013, the deceased was going on his scooty towards Noida via Ghazipur Dairy Farm. His Nephew Achal Singh was also following him on his Enfield Motorcycle. At around 3.30 pm as they crossed Vivek Dharam Kanta, Ghazipur, one Truck bearing no. JK02AL0743 (hereinafter referred to as the offending vehicle) driving ahead of the deceased suddenly in a fast speed took a right turn and in the process made the deceased fall down by hitting his scooty. The deceased was run over by the rear tyre of the offending Truck and sustained crush head injuries. The Respondent no. 1/ driver of the offending vehicle fled away from the spot alongwith Truck. The injured was taken in a PCR Van to Dr. Hedgewar hospital where he was declared as 'brought dead'. A case u/s 279/304A IPC was registered vide FIR No. 323/13 at Police Station Ghazipur against the Respondent no.1.
3. It is stated by the Petitioners that Respondent no.1 is the Driver, Respondent no. 2 is the Owner and Respondent no. 3 is the Insurer and they all are jointly and severally liable to pay the compensation to the Petitioners. It is stated that the parents of the deceased had MAC NO.:11537/16 KUMUD VS. JIWAN LAL & ORS. PAGE NO.:14/12 already predeceased him.
4. The Respondents no.1 and 2 have filed their joint Written Statement denying the factum of accident; that the Respondent no. 1 had a valid and effective driving license; that the offending vehicle was duly insured with the Respondent no. 3.
5. The Respondent no.3 filed its reply admitted that the offending vehicle was insured in the name of the Respondent no. 2 vide a valid Insurance Policy for a period from 13.06.2013 to 12.06.2014.
6. On the basis of the pleadings, following issues were settled for adjudication:
i) Whether deceased Pawan Singh suffered fatal injuries in a road accident on 30.07.2013 involving vehicle i.e. Truck bearing registration no. JK 02AL0743 driven by respondent no.1 in a rash and negligent manner? (OPP)
ii)Whether the petitioners are entitled for any compensation, if so, to what amount and from whom? (OPP)
(iii) Relief.
7. PW1 - Sh. Achal Singh was examined as the eyewitness of the accident. Petitioner no. 1 examined herself as PW2 and relied upon the documents i.e., her Voter I Card as Ex. PW2/1 (OSR), MLC dated 30.07.2013 as Ex. PW2/2, PM Report of deceased at LBS dated 31.07.2013 as Ex. PW2/3, Voter I Card and DL of deceased as Ex. PW2/4. Sh. Amit Kumar, Company Secretary, from T.K. Gupta & Associates Chartered Accountants brought the Power of MAC NO.:11537/16 KUMUD VS. JIWAN LAL & ORS. PAGE NO.:14/12 Attorney in his favour as PW3/1, his report in response to the summons as Ex. PW3/2 (Colly 2 pages), the list of Directors of M/s. Kirti Plumbing Fitting Pvt. Ltd. as Ex. PW3/3.
8. I have heard Ld. Counsels for the parties and have perused the entire material in the light of relevant statutory provisions of law. My observations on the issues are as follows : ISSUE NO. 1 :
Whether deceased Pawan Singh suffered fatal injuries in a road accident on 30.07.2013 involving vehicle i.e. Truck bearing registration no. JK 02AL0743 driven by respondent no.1 in a rash and negligent manner? (OPP)
9. For succeeding in a Petition filed under Section 166 & 140 of the M.V. Act, it is for the Petitioners to prove that the vehicle which caused the accident was being driven rashly and negligently by its driver. Hon'ble Delhi High Court in a case titled as Sh. Rajendra Jha Vs. Ms. Arti Rohatgi and Anr., 2006 ACJ 2729 observed as under : "It is settled legal position that proof of negligence is essential to maintain a claim for compensation as envisaged under Section 166 of the Motor Vehicles Act. It is only under Section 163A, the use of the offending vehicle but not negligence on the part of the offending vehicle is required to be established. Unlike Section 163A, proof of negligence is sine qua non to claim compensation under Section 166 of the Motor Vehicles Act. In this regard, the Hon'ble Apex Court has, in Oriental Insurance Co. Ltd. vs. Meena Variyal MANU/SC/7265/2007 :
AIR 2007SC1609 observed as under : "........ Therefore, the victim of an accident or his dependents have an option either to proceed under Section 166 of the Act MAC NO.:11537/16 KUMUD VS. JIWAN LAL & ORS. PAGE NO.:14/12 or under Section 163A of the Act. Once they approach the Tribunal under Section 166 of the Act, they have necessarily to take upon themselves the burden of establishing the negligence of the driver or owner of the vehicle concerned."
10. In order to prove this issue, Smt. Kumud, Wife of the deceased testified that on 30.07.2013 her husband was going on his scooty towards Noida and near Vivek Dharam Kanta, Ghazipur, was hit by a Truck bearing no. JK02AL0743. She testified that as a result of hit, her husband suffered serious injuries and had passed away. In his cross examination however, she stated that she did not witness the accident.
11. The Petitioners also examined Sh. Achal Singh, an eyewitness t the incident. This witness testified that on the fateful day, he was following the scooty of the deceased and was on his own motorcycle bearing no. DL7SK8696 at a distance of about 15 ft. behind the scooty. He testified that near Vivek Dharam Kanta, Ghazipur, suddenly a Truck bearing no. JK02AL0743 in an attempt to overtake the scooty hit the scooty from left side making the scooty rider fall on road. He testified that the rear tyre of the offending truck ran over the head of the deceased. He testified that the Truck driver fled from the spot but was chased by him and was caught near cremation ground Ghazipur. The PCR Van had reached there. He testified that the accident took place only due to the rash and negligent driving of the offending Truck driver.
12. PW1 in his cross examination negates the suggestion that he was not present on the spot, following the scooty or did not see the MAC NO.:11537/16 KUMUD VS. JIWAN LAL & ORS. PAGE NO.:14/12 accident. He negated the suggestion that the accident happened due to the scooty rider's negligent driving. I observe that nothing contrary could be elicited from the cross examination of this witness and thus his testimony is held reliable and truthful.
13. I further observe that the driver and the owner have not come in the witness box. It was the driver who had the first hand knowledge and he was the best witness who could have been in a position to explain the manner of the accident. Since he did not step into the witness box, it can be inferred adversely that it was only due to the negligent driving of the offending vehicle which was the cause of accident. (Bimla Devi and Ors. v. Himachal Road Transport Corporation and Ors., (2009) 13 SC 530).
14. In case of Cholamandalam M.S. General Insurance Co. Ltd.
v. Kamlesh : 2009 (3) AD (Delhi) 310, an adverse inference was drawn because the driver of the offending vehicle had not appeared in the witness box to corroborate his defence taken in the written statement.
15. This Court has considered the criminal proceedings including the FIR and the site plan. Coupled with this is the Chargesheet against Respondent no.1 filed by the Investigating Officer under Sections 279/304A IPC in case FIR No.323/13 Police Station Ghazipur In a judgment of Hon'ble Delhi High Court in United India Insurance Co. Ltd. Vs. Deepak Goel & Ors., 2014 (2), T.A.C. 846 (Del.), it was held that in a case, where FIR is lodged, chargesheet is filed, then the documents mentioned above are MAC NO.:11537/16 KUMUD VS. JIWAN LAL & ORS. PAGE NO.:14/12 sufficient to establish the fact that the driver of the vehicle in question was negligent in causing the accident.
16. There is nothing on record to show that the Petitioners had any enmity with the driver of the offending vehicle so as to falsely implicate him in the case. The issue thus stands decided in favour of Petitioners holding that the accident happened as a result of negligent driving by Respondent no.1 in which Pawan Singh sustained fatal injuries.
ISSUE NO. 2 :
Whether the petitioners are entitled for any compensation, if so, to what amount and from whom? (OPP)
17. Smt. Kumud, Wife of deceased stated that the deceased was taken to Dr. Hedgewar Hospital, where he was declared as 'brought dead'. She stated that her husband was running an Industry under the name & style of M/s. Kirti Plumbing Fitting Pvt. Limited at Shahdara, Delhi and at Noida, Distt. Gautam Budh Nagar, UP as one of the Directors and was having the 50% shares in the Company.
18. The petitioners examined Sh. Amit Kumar, Company Secretary as PW3 from M/s. T.K. Gupta & Associates Chartered Accountants. This witness deposed that the Company M/s. T.K. Gupta & Associates was never associated with M/s. Kirti Plumbing Fitting in any manner. He deposed that M/s. T.K. Gupta & Associates never did an assignment of the firm M/s. Kirti Plumbing Fittings nor audited the book of accounts of the firm. Having MAC NO.:11537/16 KUMUD VS. JIWAN LAL & ORS. PAGE NO.:14/12 considered the evidence of PW3, the Tribunal holds that the Petitioners have remained unable to prove that the deceased was one of the Directors of M/s. Kirti Plumbing Fittings. Not a singular document in support of this firm was brought on record. The wife of the deceased / PW2 Smt. Kumud feigned her ignorance about the constitution of the Firm or the designation of the deceased in the firm M/s. Kirti Plumbing Fittings. She further feigned her ignorance as to if the deceased was an Income Tax assessee. She stated that she could not file any document in support of the Education qualification of the deceased. In the absence of any such record of the avocation or earnings, the monthly income of the deceased can be taken as per the minimum wages applicable to an unskilled workman under Minimum Wages Act. Therefore, the same is assessed as Rs.7,722/ per month.
19. So far future prospects concern, in a recent judgment in HDFC Ergo General Insurance Co. Ltd. Vs. Lalta Devi & Ors., (decided on 12.1.2015), the three Judge Bench Decision of Hon'ble Apex Court in Reshma Kumari & Ors. Vs. Madan Mohan & Anr., (2013) 9 SCC 65 was held to be taken as a binding precedent. It was observed by the Hon'ble High Court of Delhi that till such time the law is clarified by the larger bench of Hon'ble Apex Court on the subject of future prospects for those who are 'self employed' or engaged in gainful employment at a 'fixed salary', the law in Reshma Kumari (Supra) would be taken as the binding precedent. Thus, in absence of any such evidence having come up, the MAC NO.:11537/16 KUMUD VS. JIWAN LAL & ORS. PAGE NO.:14/12 Petitioners are not entitled for the same.
20. As per documents, the date of birth of deceased is shown as 31.12.1965. Thus, the age of deceased is taken as 48 years at the time of accident. Ld. Counsel for Petitioners stated that the Petitioner no. 2 is the unmarried daughter of deceased. Ld. Counsel thus urged for compensation on account of the expenses to be incurred on her marriage.
21. As guided by the judgment in Sarla Verma & Ors. Vs. DTC & Ors., (2009) 6 SCC 121, it is the 1/3rd from the income of deceased which has to be deducted towards his living expenses. After such deduction, the contribution to the family (dependents) comes to Rs.5,148/ per month [Rs.7,722.00 -(1/3)]. By applying multiplier of 13, the compensation to the Petitioners under the head Loss of Dependency is assessed as Rs.8,03,088/ (Rs.5,148.00 x 12 x 13).
22. Following the view taken in Rajesh & Ors. Vs. Rajbir Singh & Ors., (2013) 9 SCC 54 and Shashikala Vs. Gangalakshmamma, (2015) 9 SCC 150, compensation in the sum of Rs.1,00,000/ each on account of loss of love and affection & loss of consortium and Rs.25,000/ each towards loss of Estate and funeral expenses are awarded to the Petitioners.
23. The petitioner no. 2 is unmarried daughter of the deceased. She is residing with her mother/ Petitioner no.1. I award an amount of Rs.2,00,000/ towards her marriage expenses. (Ramesh Chand Pasi & Ors. Vs. Sukan Mehto & Ors. decided on 15.04.2014 by MAC NO.:11537/16 KUMUD VS. JIWAN LAL & ORS. PAGE NO.:14/12 Hon'ble High Court of Delhi).
24. The Petitioners are thus entitled for the total amount of compensation which is as follows : Sl. No. On Account of Amount (Rs.) 1 Loss of dependency Rs.8,03,088.00 2 Marriage expenses of Rs. 2,00,000.00 unmarried daughter 3 Loss of Consortium Rs.1,00,000.00 4 Loss of Love and affection Rs.1,00,000.00 5 Loss of Estate Rs. 25,000.00 6 Funeral expenses Rs. 25,000.00 Total = Rs.12,53,088.00 Thus, the Petitioners are entitled to a sum of Rs.12,53,088/ which shall be the just compensation to them.
LIABILITY
25. Since the Insurance Company has not denied the policy as on date of accident, therefore it is liable to pay the compensation amount. There being no evidence of violation of the policy conditions and there being nothing to support the permitted defence U/s 149(2) of the M.V. Act, I am unable to grant the recovery rights. It is the Insurance Company, which shall make good the compensation in terms of the accepted policy.
AWARD
26. Resultantly, the Petition stands allowed. The Insurance Company is directed to pay the compensation of Rs.12,53,088/ within one month to the Petitioner no.1. The Insurance Company shall also pay interest @ 9% per annum on the total compensation MAC NO.:11537/16 KUMUD VS. JIWAN LAL & ORS. PAGE NO.:14/12 amount from the date of filing of petition till realization. The Award Amount be deposited in UCO Bank, Karkardooma Courts Complex, Delhi and same be transferred to Petitioner's bank on moving application.
27. The entire Award amount shall be kept in the names of Petitioner no. 1 in the form of FDRs as mentioned below in the table with the release of monthly periodical interest in her favour :
S. No. Duration of FDRs In favour of Petitioner no. 1 1 6 months Rs. 53,088/ 2 1 year Rs.1,00,000/ 3 2 years Rs.1,00,000/ 4 3 years Rs.1,00,000/ 5 4 years Rs.1,50,000/ 6 5 years Rs.1,50,000/ 7 6 years Rs.1,50,000/ 8 7 years Rs.1,50,000/ 9 8 years Rs.3,00,000/ TOTAL = Rs.12,53,088/
28. Interest on the aforesaid Fixed Deposits shall be paid monthly by Automatic Credit of Interest in the Savings Account of Petitioner.
29. Withdrawal from the said Account shall be permitted to Petitioner after due verification and Bank shall issue Photo Identity Card to Petitioner to facilitate Identity.
30. The original Fixed Deposit Receipts shall be retained by the MAC NO.:11537/16 KUMUD VS. JIWAN LAL & ORS. PAGE NO.:14/12 Bank in safe custody. However, original Passbook shall be given to the Petitioner with photocopy of FDRs. On expiry of period of each FDR, the Bank shall automatically credit the maturity amount in Savings Account of beneficiary.
31. No loan, advance, withdrawal shall be allowed on the said FDRs without permission of this court.
32. Half yearly statement of account be filed by the Bank in this court.
33. On request of the Petitioner, Bank shall transfer the Savings Account to any other branch.
34. In case, the Insurance Company fails to deposit this compensation with proportionate interest, in that event, in the light of the judgment of the Hon'ble High Court of Delhi in the case of The New India Assurance Company Limited Vs. Kashmiri Lal, 2007 ACJ 688, this compensation shall be recovered by attaching the bank account of the Insurance Company with a cost of Rs.10,000/.
File be consigned to record room.
Announced in the open Court th Dated : 25 January, 2017 (MS. RAVINDER BEDI) PRESIDING OFFICER MACT (EAST) KARKARDOOMA COURTS, DELHI.
MAC NO.:11537/16 KUMUD VS. JIWAN LAL & ORS. PAGE NO.:14/12 MACT NO.11537/16 25.01.2017 Present : Ld. Counsels for the parties.
Vide separate order announced in the open court today, the Petition stands allowed. The Insurance Company is directed to pay the compensation of Rs.12,53,088/ within one month to the Petitioner no.1. The Insurance Company shall also pay interest @ 9% per annum on the total compensation amount from the date of filing of petition till realization. The Award Amount be deposited in UCO Bank, Karkardooma Courts Complex, Delhi and same be transferred to Petitioner's bank on moving application.
The entire award amount shall be deposited in the name of Petitioner no.1 in the form of FDRs as mentioned in the table with release of monthly interest to her :
S. No. Duration of FDRs In favour of Petitioner no. 1 1 6 months Rs. 53,088/ 2 1 year Rs.1,00,000/ 3 2 years Rs.1,00,000/ 4 3 years Rs.1,00,000/ 5 4 years Rs.1,50,000/ 6 5 years Rs.1,50,000/ 7 6 years Rs.1,50,000/ 8 7 years Rs.1,50,000/ 9 8 years Rs.3,00,000/ TOTAL = Rs.12,53,088/ Interest on the aforesaid Fixed Deposits shall be paid monthly by Automatic Credit of Interest in the Savings Account of Petitioner.
Withdrawal from the said Account shall be permitted to Petitioner after due verification and Bank shall issue Photo Identity Card to Petitioner to facilitate Identity.
The original Fixed Deposit Receipts shall be retained by the MAC NO.:11537/16 KUMUD VS. JIWAN LAL & ORS. PAGE NO.:14/12 Bank in safe custody. However, original Passbook shall be given to the Petitioner with photocopy of FDRs. On expiry of period of each FDR, the Bank shall automatically credit the maturity amount in Savings Account of beneficiary.
No loan, advance, withdrawal shall be allowed on the said FDRs without permission of this court.
Half yearly statement of account be filed by the Bank in this court.
On request of the Petitioner, Bank shall transfer the Savings Account to any other branch.
In case, the Insurance Company fails to deposit this compensation with proportionate interest, in that event, in the light of the judgment of the Hon'ble High Court of Delhi in the case of The New India Assurance Company Limited Vs. Kashmiri Lal, 2007 ACJ 688, this compensation shall be recovered by attaching the bank account of the Insurance Company with a cost of Rs.10,000/. List for reporting compliance on 14.03.2017.
(MS. RAVINDER BEDI) PO MACT (EAST) KKD./DELHI/25.01.2017 MAC NO.:11537/16 KUMUD VS. JIWAN LAL & ORS. PAGE NO.:14/12