Delhi District Court
Shri Manhohar Lal Sharma S/O Late Sh Babu ... vs Sh Deepak Sharma S/O Sh Murari Lal on 7 February, 2012
IN THE COURT OF SH. PREM KUMAR BARTHWAL,
PO: MACT(SE01), SAKET COURTS, NEW DELHI
Suit No: 201/10
Unique Case ID: 02403C0168732010
1. Shri Manhohar Lal Sharma S/o Late Sh Babu Lal Sharma
2. Smt Nisha Sharma W/o Sh Manohar Lal Sharma
Both R/o House No. 36A, Street No. 5D,
Molar Bandh Extension, Badarpur, New Delhi.
......PETITIONERS
VERSUS
1. Sh Deepak Sharma S/o Sh Murari Lal,
R/o X83, Shiv Nagar Colony, Bharatpur,
Rajasthan and also at: E95, Harkesh Nagar,
Okhla Tank,Sarita Vihar, New Delhi.
2. M/s Delhi Transport Corporation,
Kingsway Camp, Banda Bahadur Marg, New Delhi.
3. M/s United India Insurance Company Ltd,
DO: XI, E85, Himalaya House, 8 Floor,
th
KG Marg, New Delhi. .....RESPONDENTS
Date of Institution of claim petition: 04.03.2010 Date on which the Award/judgment reserved: 04.02.2012 Date on which the Award/judgment pronounced: 07.02.2012 A W A R D:
1. This petition under Section 166 of the Motor Vehicle Suit No. 201/10 Page 1 of 13 Act 1988 was filed by the petitioners claiming compensation of Rs. 25,00,000/ for the fatal injuries suffered by their deceased son, Shri Gaurav Gaur S/o Sh Manohar Lal Sharma due to rash and negligent driving of respondent No. 1, Deepak Sharma S/o Sh Murari Lal while driving vehicle bearing registration no.
DL1PC0135 on 14.01.2010 near Main Road, Nai Basti near Voter Registration Epic Center, New Delhi. The petitioner no 1 is the father and the petitioner no 2 is the mother of the deceased, Shri Gaurav Gaur. An Accident Information Report (AIR) was also filed by the police in respect of this accident (FIR No 09/10 PS Jamia Nagar). A separate interim award of Rs. 50,000/ in favour of both the petitioners was passed by the Ld predecessor of this Tribunal vide proceedings dated 16.08.2010.
2. The respondents no. 1, 2 and 3 are respectively the driver, owner and insurer of the offending vehicle. The respondent no 1/ driver of the offending vehicle had appeared on 04.03.2010 in the AIR proceedings but subsequently he stopped participating in the proceedings and failed to appear and was therefore proceeded exparte by the Ld predecessor of this Tribunal vide order dated 16.08.2010. The respondent no. 1 had Suit No. 201/10 Page 2 of 13 also appeared on 07.02.2011 and appearance of a counsel for R1 has also been recorded on 20.05.2011 but the R1 has not chosen to contest the claim of the petitioner by filing any written statement. Sh Satish Chand, Dealing Assistant had appeared on behalf of respondent no 2/ Delhi Transport Corporation in the AIR proceedings on 04.03.2010 but subsequently there was no appearance on behalf of respondent no 2 and even no written statement was filed on behalf of the said respondent and accordingly, the respondent no. 2 was proceeded exparte by the Ld predecessor of this Tribunal vide order dated 16.08.2010. The respondent no 3/Insurance Company has appeared through its counsel and filed a written statement denying the claim of the petitioners but admitting the fact that the vehicle bearing registration no. DL1PC0135 was insured with it in the name of respondent no 2 under policy no. 041100/31/08/02/00004836 issued for the period 27.02.2009 to 26.02.2010.
3. From the pleadings of the parties following issues were framed for consideration on 07.02.2011:
1. Whether the deceased suffered fatal injuries in an accident that took place on 14.01.2010 driven by Suit No. 201/10 Page 3 of 13 respondent no 1, owned by respondent no 2 and insured with respondent no 3? OPP.
2. Whether the petitioners are entitled for compensation? If so, to what amount and from whom?
3. Relief
4. In order to prove their claim, the petitioners have got examined three witnesses i.e. Sh Manohar Lal, who is father of the deceased has been got examined as PW1; Sh Munish Sharma, Executive HR, Holy Family Hospital, Okhla Road, New Delhi has been got examined as PW2 and Sh Ankur, an eye witness to the accident has been got examined as PW3. The respondents have not adduced any evidence in their defence.
5. I have heard the ld. counsels for the parties and given my thoughts to the rival contentions. My findings to the issues are as under : ISSUE NO. 1:
6. Since the present claim petition is under Section 166 of M V Act, it was the bounden duty of the petitioners to prove that the respondent No. 1 was rash and negligent in driving the vehicle at the time of accident. In order to prove this issue, the Suit No. 201/10 Page 4 of 13 Ld. counsel for the petitioners has relied upon the statement of PW3, Shri Ankur S/o Sh Om Prakash Sharma, an eyewitness to the accident and who has deposed that on 14.01.2010, he was going on his bike to his office at New Friends Colony, New Delhi and when he had reached near Nai Basti, Okhla, New Delhi, he saw a bus bearing registration no. DL1PC0135 hitting one motorcyclist who was driving the motorcycle bearing no. DL3SBB4630 and that the said motorcyclist was run over by the offending bus. It was further stated by this witness that the accident was caused by the driver of the offending bus who was driving the same in a rash and negligent manner and the said witness has also correctly identified the driver of the offending vehicle i.e. the respondent no. 1 in the court. The respondent no 1 and 2 have not chosen to crossexamine PW3, Sh Ankur and the said witness was crossexamined by the Ld counsel for the respondent no. 3/Insurance company but nothing beneficial to the respondents have emerged or any doubt to disbelieve his version regarding the manner in which the accident had taken place. The statement of PW3, Sh Ankur also stands corroborated by the Accident Information Report and the copy of the Final Report filed Suit No. 201/10 Page 5 of 13 by the police in respect of this accident (FIR No. 09/10 PS Jamia Nagar) against the respondent no 1/ driver of the offending vehicle for his trial of offences U/s 279/304A IPC. The copies of FIR, Site Plan, Arrest Memo of R1/ driver of the offending vehicle, Seizure Memo of the offending vehicle and the Mechanical Inspection Report of the offending vehicle have also been filed on record. To determine the negligence of the driver of the offending vehicle, I am being guided by the judgment of Hon'ble High Court in case titled "Basant Kaur & Ors. Vs. Chattar Pal Singh & Ors" [2003 ACJ 369 M.P. (DB)] wherein it has been held that registration of a criminal case against the driver of the offending vehicle is enough to record the finding that the driver of offending vehicle is responsible for causing the accident. A roving inquiry is not required to prove the rashness and negligence on the part of the driver as was held in case titled '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 mere use or involvement of motor vehicle in causing bodily injuries or Suit No. 201/10 Page 6 of 13 death to a human being or damage to property would make the petition maintainable. It is also settled law that the term rashness and negligence has to be construed lightly 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. The present petition is on a better footing for the reason that there is an eye witnesses to the accident whose testimony is on record and even the copy of Accident Information Report and the copy of Final Report filed on record also clearly reveals involvement of the offending vehicle and causing of fatal injuries to the deceased due to rash and negligent driving of respondent no. 1.
7. In view of the above discussions and particularly in view of no controverting evidence on behalf of R1/ driver of the offending vehicle, it stands proved on record that the deceased, Sh Gaurav Gaur had suffered fatal injuries due to rash and negligent driving of respondent no 1, Sh Deepak Sharma. Accordingly, the issue no. 1 is decided in favour of the petitioners Suit No. 201/10 Page 7 of 13 and against the respondents.
ISSUE No. 2 (COMPENSATION):
8. The Ld. counsel for the petitioners has submitted that deceased was working as a Junior Computer Programmercum Instructor and was earning a monthly income of Rs.14,000/ at the time of accident. In this regard, the Ld counsel for the petitioners has relied upon the statement of PW2, Sh Munish Sharma, Executive HR, Holy Family Hospital, Okhla Road, New Delhi who has deposed that Sh Gaurav Gaur S/o Sh M L Sharma was employed as Jr IT Assistant with their hospital from 12.10.2007 till 14.01.2010. PW2, Sh Munish Sharma has also proved the copies of the letters dated 03.03.2010, 31.12.2009 and 15.10.2009 as ExPW2/A, B and C respectively. As per the letter dated 15.10.2009, ExPW2/C, the Director of M/s Holy Family Hospital had confirmed the service of the deceased, Sh Gaurav Gaur Jr IT Assistant in the pay scale of Rs. 6,00020014,000/ w.e.f 12.10.2009. As per the letter dated 31.12.2009, ExPW2/B, the deceased, Sh Gaurav Gaur was promoted as Jr Computer ProgrammercumInstructor in the pay scale of Rs.8,00025015,500/ w.e.f 01.01.2010. As per the Suit No. 201/10 Page 8 of 13 certificate dated 20.05.2011, Ex.PW2/D, the deceased was getting Rs.8,000/ as basic salary, Rs. 3,600/ as fixed pay and Rs. 2,400/ as HRA at the time of his fatal accident on 14.01.2010 and was thus earning Rs. 14,000/ per month at the time of his fatal accident. As per the secondary school certificate of the deceased, the date of birth of the deceased was 18.11.1985. Thus, the deceased was aged about 25 years on the date of accident (14.01.2010) and the deceased was also having Bacehlor's Degree in Computer Application and had also passed DOEACCA Level examination and was also accorded certificates for accomplishments (ExPW1/5 to ExPW1/8). The deceased being a regular employee would have earned more during his lifetime and in these circumstances, I find considerable force in the submissions of the Ld counsel for the petitioners that the petitioners are also entitled for loss of future prospects. As the deceased was aged less then 40 years hence, on the basis of the judgment of the Hon'ble Supreme Court of India in "Sarla Verma Vs Delhi Transport Corporation" [2009 (6) Scale 129], the future prospects are to be considered as 50% of the said salary. Thus, the monthly income of the deceased for the Suit No. 201/10 Page 9 of 13 purpose of assessment of loss of dependency is taken to be Rs. 14,000/ + Rs. 7,000/ i.e. Rs. 21,000/. In terms of the judgment of the Hon'ble Supreme Court of India in case titled "Sarla Verma's Case (Supra) a deduction of onehalf (50%) is to be made towards personal expenses as the deceased was unmarried at the time of accident and has left behind two dependents i.e. parents of deceased. Thus, the loss of dependency per month comes out to be (Rs. 21,000/) (Rs. 10,500/)= Rs. 10,500/. As per the Ration Card, ExPW1/1, the mother of the deceased was born in the year 1960. Thus, she was aged about 50 years on the date of accident (14.01.2010) for which the appropriate multiplier applicable for the age group of 4650 is 13, as mentioned in case titled "Sarla Verma's Case (Supra), and the total loss of dependency comes out to (Rs. 10,500/ X 12 X 13)= Rs. 16,38,000/. I also award Rs. 10,000/ towards funeral expenses, Rs. 25,000/ towards loss of love and affection and Rs. 10,000/ towards loss of estate. In total, I hereby award a sum of Rs. 16,83,000/ (Rupees Sixteen Lac and Eighty Three Thousand Only) in favour of the petitioners and against the respondents.
Suit No. 201/10 Page 10 of 13 RELIEF:
9. I award Rs. 16,83,000/ (Rupees Sixteen Lac and Eighty Three Thousand Only) as compensation with interest at the rate of 7.5% per annum including interim award, if any, from the date of filing the petition i.e., 24.04.2010 till the notice under Order 21 Rule 1 CPC is given by the insurance company (excluding interest for the period w.e.f. 07.02.2011 till 27.01.2012 in terms of the order dated 19.08.2011), in favour of the petitioners and against the respondents on account of their liability being joint and several. Out of the awarded amount, both the petitioners shall have an equal share in the award amount along with proportionate interest.
10. Acting on the guidelines issued by Hon'ble Supreme Court of India in case titled "G.M Kerala State Road Transport Corporation v/s S.Susamma Thomas" (1994) 2 SCC 176 and in order to avoid the money being frittered away, 50% share of the petitioners shall be kept in a FDR in a nationalized bank hereinafter named for a period of 05 years. No loan or advance shall be allowed against the said FDRs but the petitioners are at liberty to withdraw the interest quarterly on the FDRs. Suit No. 201/10 Page 11 of 13
APPORTIONMENT OF LIABILITY:
11. The respondent No. 3, being the insurer of the offending vehicle at the time of accident, is jointly and severally liable with the other respondents. Accordingly, respondent No. 3 i.e. M/s United India Insurance Company Ltd is directed to deposit the award amount within a period of 30 days. In case of any delay, it shall be liable to pay interest at a rate of 12% per annum for the period of delay.
12. In terms of the directions passed by the Hon'ble High Court of Delhi in its latest judgment titled as "Amod Kumar Ray & Ors Vs Raj Kumar Chauhan & Ors" {CM(M) 649/2011 decided on 25.05.2011}, the Insurance company is directed to deposit the award amount in the State Bank of India, District Courts Saket, New Delhi in the name of the petitioners in terms of the award and shall file the compliance report. It is made clear that at the time of the deposit of the award amount with the bank, the Insurance company shall specifically mention the suit no. of the case, title of the case as well as date of decision with the name of court on the back side of the cheque. The insurance company shall also file a copy of the award attested by its own Suit No. 201/10 Page 12 of 13 officer to the bank at the time of deposit of the amount with the bank.
13. The copy of this award be given to the respondents as well as to the petitioners free of cost. The petitioners shall approach the State Bank of India, District Court Saket, New Delhi for opening the account.
14. The Bank Manager is directed to release the award amount to the petitioners. The amount which is ordered to be kept in the FDRs should not be released unless the FDRs are matured.
15. Put up for compliance to be filed by the Insurance company on 26.03.2012. The petition stand allowed and disposed off. Accordingly, the inquiry file be consigned to record room after completion of necessary formalities.
Announced in the open (PREM KUMAR BARTHWAL)
Court on 07.02.2012 PO: MACT, SOUTHEAST01,
SAKET COURTS, NEW DELHI
Suit No. 201/10 Page 13 of 13