Delhi District Court
Som Dutt Sharma vs Mohd. Khalid on 23 July, 2015
IN THE COURT OF MS. KIRAN BANSAL
P.O. MOTOR ACCIDENT CLAIMS TRIBUNAL:
NORTH-EAST DISTRICT : KKD COURTS : DELHI
MACT No. 21/11
Unique Case Identification No:- 02402C0010172011
1. Som Dutt Sharma
S/o Late Sh. Rishi Dutta Sharma aged 25 years (Son)
2. Vikas Sharma
S/o Late Sh. Rishi Dutt Sharam 20 years (Son)
3. Deepak Sharma
S/o Late Sh. Rishi Dutt Sharma 18 years (Son)
All R/o E-110, Ashok Nagar, Shahadara
Delhi ....... Petitioners
Versus
1. Mohd. Khalid
S/o Sh. Imamuddin
R/o Village Basod,
District Baghpat (UP) (Driver)
2. M/s. Atal Transport Co. Pvt. Ltd
C-12, Shree Ram Market,
100 Foota Road, Kabir Nagar,
Shahdara, Delhi. (Owner)
3. The Oriental Insurance Co. Ltd.
A-25-27, Asaf Ali Road,
New Delhi - 110002
4. Santosh Sharma
R/o Village Firojpur,
District Baghpat (UP) (Mother of deceased)
5. Pinki
Village Habibpur
Noida (UP) ......... Respondents
i) Date of Institution of Claim Petition : 12/01/2011
ii) Date when fixed for Orders : 05/06/2015
iii) Date of Decision : 23/07/2015 APPLICATION U/S 166 & 140 M.V. ACT 1988 FOR GRANT OF COMPENSATION Kiran Bansal P.OMACT (NorthEast) MACT No. 21/11 Page 1/9 AWARD
1. LRs of deceased Rishi Dutta Sharma have filed the present claim petition under Sec. 166 & 140 of MV Act stating that on 02/06/2010 deceased Rishi Dutt Sharma after switching off his job from his office was going to meet his relative to his native place at Loni alongwith his friend Ekramuddin on his motorcycle bearing no. DL 13SF 7167 and when near about 12:00 PM they reached near DLF Flats Chowki, offending truck bearing registration no. HR 38M 9282 loaded with bricks coming from opposite side being driven by its driver in a very high speed, rash and negligent manner losing his control over the offending vehicle run over the deceased and his friend and turned over them due to which deceased died on the spot. FIR bearing no. 554/10 was registered at PS Loni, Ghaziabd in this respect.
2. Summons of the claim petition were issued to the respondents. Joint WS was filed on behalf of respondent no. 1 and 2 stating that no accident took place due to negligence of respondent no. 1 or with the vehicle of respondent no. 2.
Respondent no. 3 The Oriental Insurance Co. Ltd. has also filed WS. They have admitted that the vehicle No. HR 38M 9282 was insured with them for the period from 26/05/2010 to 25/05/2011 in the name of M/s. Atal Transport Co. Pvt. Ltd. bearing Insurance Policy No. 254002/31/2011/835.
3. After completion of the pleadings, following issues were framed :
1) Whether deceased Rishi Dutta Sharma died because of injuries sustained in motor accident caused by rash and negligent driving of vehicle no. HR 38M 9282 by respondent no. 1 Mohd. Khalid on 02/06/2010 at about 12 pm at DLF Flats Chowki, Loni Pusta within the jurisdiction of P.S. Loni ? OPP
2) Whether petitioners are entitled to compensation ? If so, to what amount and from whom?
3) Relief
4. I have heard the counsels for both the parties and gone through the entire evidence on record carefully. My issue wise findings are as below :
Kiran Bansal P.OMACT (NorthEast) MACT No. 21/11 Page 2/9 5. ISSUE NO. 1 Whether deceased Rishi Dutta Sharma died because of injuries sustained in motor accident caused by rash and negligent driving of vehicle no. HR 38M 9282 by respondent no. 1 Mohd. Khalid on 02/06/2010 at about 12 pm at DLF Flats Chowki, Loni Pusta within the jurisdiction of P.S. Loni ? OPP Petitioner no. 1 has examined herself as PW1 and Sh. Deepak as PW2 however, they were not an eye witness to the accident. No evidence has been led on behalf of respondents on this aspect. Respondent driver has not stepped into the witness box to state as to how accident occurred and to depose that he was not at fault and was not driving the vehicle in rash and negligent manner.
In the present case criminal case record was filed which includes the copy of FIR, charge sheet, site plan and postmortem report.
To determine the negligence, I am being guided by the judgment of Hon'ble High Court of Delhi in 2009 ACJ 287, National Insurance Company Limited Vs. Pushpa Rana wherein in the Hon'ble High Court held that in case the petitioner files the certified copy of the criminal record or the criminal record showing the completion of the investigation by the police or the issuance of charge sheet under section 279/304 A IPC or the certified copy of the FIR or in addition the recovery memo and the mechanical inspection report of the offending vehicle, these documents are sufficient proof to reach to the conclusion that the driver was negligent. It was further held that the proceedings under the Motor Vehicles Act are not akin to the proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Further, in Kaushnumma Begum and others v/s New India Assurance Company Limited, 2001 ACJ 421 SC, the issue of wrongful act or omission on the part of driver of the motor vehicle involved in the accident has been left to a secondary importance and it was held that, mere use or involvement of motor vehicle in causing bodily injuries or death to a human being or damage to property would made the petition maintainable under section 166 and 140 of the Act. It is also settled law that the term rashness and negligence has to be construed lightly Kiran Bansal P.OMACT (NorthEast) MACT No. 21/11 Page 3/9 while making a decision on a petition for claim for the same as compared to the word rashness and negligence as finds mention in the Indian Penal Code. This is because the chapter in the Motor Vehicle Act dealing with compensation is a benevolent legislation and not a penal one.
Further the Hon'ble High of Delhi in MAC App. No.200/2012 in case titled as United India Insurance Co. Ltd. Vd. Smt. Rinki @ Rinku & Ors decided on 23/07/2012 by Hon'ble Mr. Justice G. P. Mittal, held as under:
"The Claims Tribunal was conscious of the fact that negligence is a sine qua non to a Petition under Section 166 of the Motor Vehicles Act, 1988(the Act). It is also true that the proceedings for grant of compensation under the Act are neither governed by the criminal procedures nor are a civil suit. A reference may be made to a judgment of the Supreme Court Bimla Devi and Ors. V Himachal Road Transport Corporation and Ors, (2009) 13 SC 530 where it was held as under:
"15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of any accident caused by a particular bus in a particular manner may not be possible to be done by the claimant. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied."
Therefore, in view of the criminal case record, it is proved that the deceased Rishi Dutta Sharma sustained fatal injuries in the accident which occurred on 02/06/2010 due to rash and negligent driving of offending vehicle bearing no. HR 38M 9282 driven by its driver i.e Respondent no. 1. The issue is decided accordingly.
6. ISSUE NO. 2Whether petitioners are entitled to compensation ? If so, to what amount and from whom?
Kiran Bansal P.OMACT (NorthEast) MACT No. 21/11 Page 4/9 Smt. Rekha, wife of deceased has examined herself as PW1 (Though, she expired during the pendency of the case). She has stated in her affidavit Ex. CW1/1 that deceased was working as Mailman in the Department of communication and drawing salary of Rs. 18,000/- per month. Pay slip of deceased is Ex. CW1/K and identity card is Ex. PW1/L. As per the pay slip Ex. CW1/K the gross salary of deceased was Rs. 9510/-, transport allowance is Rs. 2160/-, washing allowance is Rs. 60/-, HRA is Rs. 2853/- and Dearness Allowance is Rs. 3329/-. After deducting the transport allowance and washing allowance, which were personal to the deceased, the pay comes to Rs. 15,692/- per month.
PW1 has stated in her affidavit that deceased was 42 years old at the time of accident. As per ration card Ex. PW1/A the year of birth of deceased was 1969. As per the postmortem report the age of the deceased was 56 years and as per Ex. PW2/2, the date of birth of deceased recorded in his service record is 27/11/1959. Therefore, as per dictum laid down in Sarla Verma Vs. DTC (supra), multiplier to be applied is 13.
It is stated in the affidavit of PW1 that all the petitioners were dependent on the deceased. However, during the cross-examination PW2 has stated that his mother was getting the family pension but he was not aware about the amount of pension.
Ld. Counsel for the insurance has argued that as the widow of deceased was still receiving pension, there was no financial loss to the family of the deceased. However, in the judgement titled as Ram Rati and Others Vs. New India Assurance Co. Ltd. and others, 2011 ACJ 2579 of Hon'ble High Court of Delhi in which it was held that family pension payable to widow of deceased is not deductable while computing the compensation. In view of the judgement in Ram Rati's case, I am not inclined to deduct the amount of pension received by the widow while calculating the loss of dependency.
It is also argued that as the deceased was married, all his children were major and wife has expired during pendency and two sons are already working in private Kiran Bansal P.OMACT (NorthEast) MACT No. 21/11 Page 5/9 firm,therefore,½ be deducted towards personal expenses. In this context reference may be had to the judgment in the case of Kamlesh Mittal & Ors. vs. Oriental Insurance Co. Ltd. & Ors. in MAC. APP.283/2010 dated 03.09.2014 where the Hon'ble Delhi High Court has held as follows:-
"14. Hence, the Supreme Court has laid down a standard formula/guideline to ensure consistency in the Awards of various tribunals. However, a perusal of the guidelines laid down shows that a situation like this has not been dealt with namely, where the deceased is married and has children who are all settled and the widow is the only person who could be considered as dependent. I may, however, note that the Supreme Court noted that in case of a bachelor where deduction of 50% was stated, the Court noted that this was because it was assumed that a bachelor would tend to spend more on himself. Further there is a possibility of his getting married in a short time in which event the contribution to the parents/siblings was likely to be cut drastically. 15. In my opinion, in a situation like the present one, the situation of the deceased cannot be treated at par with a bachelor. There is merit in the said submission of learned counsel for the appellant that a man of 54 years of age who is professionally well qualified with two settled children and a wife would not be spending 50% of his wages for personal living expenses. He would be inclined to accumulate wealth for his old age days and also for the benefit of his wife and children. One cannot also ignore that being a father of a married daughter and a son, who is likely to get married he would have spent on the marriage of the son, on his grand children after they were born. These are expenses which a man who has grown to that age and who is well settled would normally be incurring. These expenses cannot be ignored. Keeping in view these facts and circumstances in my opinion, the appropriate deduction to be made Kiran Bansal P.OMACT (NorthEast) MACT No. 21/11 Page 6/9 from the income of the deceased in the facts and circumstances of this case was 1/3rd and not 50% as done by the tribunal. Hence, 1/3rd is only to be deducted from personal expenses."
7. Similarly, in MAC.APP. 288/2011 titled Smt.Shakuntala vs. Sh. Naresh Kumar decided on 16.05.2011, by Hon'ble Delhi High Court it is held as follows:-
"6. I am inclined to agree with the aforesaid contention of Mr.Mannie for the reasons that though the deceased left behind his widow and two unmarried daughters who were wholly dependent upon him, the deceased also left behind him two married daughters and a son, who though may not have been dependent on him stricto senso, nevertheless formed part of his family. The married daughters of the deceased have been awarded only a sum of Rs.10,000/- each while the son of the deceased has been awarded Rs.15,000/- only by the Claims Tribunal. 7. It is well known that in Indian Society married daughters are also the beneficiaries of various gifts and cash amounts from the father from time to time. The appellant No.4, who was the son of the deceased, was also unmarried and in due course of time the father would have expended some amount of money on his marriage and would have supported him in times of need. Accordingly, in my view, the deduction of one-fourth of the income of the deceased ought to have been made by the Claims Tribunal while calculating the loss of dependency of the appellants."
The respondent no. 4 is the mother of the deceased and respondent no. 5 is the daughter of the deceased and they have given a statement in the present tribunal on 10/03/2011 that their share may be distributed among the petitioners.
Rs. 15,692/- X 12 X 13 (Multiplier) = Rs. 24,47,952/- Rs. 24,47,952/- - Rs. 8,15,984/- (1/3rd personal expenses) = Rs. 16,31,968/-.
Kiran Bansal P.OMACT (NorthEast) MACT No. 21/11 Page 7/9 Besides this, petitioners are also entitled for compensation under the following heads:-
Love and affection Rs. 100,000/-
Loss of Estate Rs. 10,000/-
Funeral expenses Rs. 25,000/-
Total Rs.1,35,000/-
Thus, the total compensation would amount to Rs. 17,66,968/-.
7. Liability Respondent no.3 is the insurance company which admittedly has issued a valid insurance policy to the offending vehicle. Respondent no.3 being insurance company in its written statement has admitted that there is valid insurance policy issued for the period from 26/05/2010 to 25/05/2011 in the name of M/s. Atal Transport Co. Pvt. Ltd. bearing Insurance Policy No. 254002/31/2011/835 . There is no evidence on behalf of respondent no.3 to show that there was any violation of the rules and terms of policy by the respondents no.1 & 2. Hence, I am of the opinion that respondent no.3 being insurance company is liable to pay the compensation on behalf of respondents no.1 & 2.
8. Relief Award is passed directing Respondent no. 3 i.e The Oriental Insurance Company Ltd., to pay to the petitioners no. 1 to 3 a sum of Rs. Rs. 17,66,968/- (including interim compensation, if any) by way of depositing cross cheques in favour of petitioner no. 1 to 3 in equal proportions along with interest @ 9% per annum from the date of filing of the claim petition (i.e. 12/01/2011). If award is not complied within 30 days, respondent no. 3 shall pay penal interest @ 12% p.a. for the default period. Upon deposit of award amount, cheques be deposited in any nationalized bank and the bank manager of said bank is directed to prepare FDRs of the 50% of the award amount as per the share of all the petitioners for a period of five years with monthly interest to be credited in their saving bank accounts and the Kiran Bansal P.OMACT (NorthEast) MACT No. 21/11 Page 8/9 remaining amount be released to petitioners. Branch Manager of the Bank shall also comply with following directions :-
(a) Withdrawal from the aforesaid account shall be permitted to the petitioners after due verification and the bank shall issue photo identity card of petitioners to facilitate identity.
(b) No cheque book be issued to the petitioners without the permission of the court.
(c) The original fixed deposit receipts shall be retained by the bank in the safe custody. However, the original pass book shall be given to the petitioners along with photocopy of the FDRs.
(d) The original fixed deposit receipt shall be handed over to the petitioners on the expiry of the period of the FDRs.
(e) No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the permission of the court.
(g) The petitioners shall furnish all the relevant documents for opening of the saving bank account and fixed deposit account to the Branch Manager, any nationalized bank.
9. Put up for compliance on 24/08/2015.
Attested copies of the award be furnished to the concerned parties from court for compliance.
Pronounced in Open Court on (KIRAN BANSAL)
23/07/2015 P.O. MACT(North-East)
KKD Delhi
Kiran Bansal
P.OMACT (NorthEast)
MACT No. 21/11 Page 9/9