Delhi District Court
Faeemuddin S/O Ibraheem vs Rahul & Ors. & Dar on 17 November, 2018
Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court)
Karkardooma Courts, Delhi.
In the Court of Sh. G. N Pandey
Motor Accident Claims Tribunal(Pilot Court)
Karkardooma Courts, Delhi.
DAR Nos. 330/18 & 331/18
DAR No. 330/18
IN THE MATTER OF :
Faeemuddin S/o Ibraheem
R/o H. No. 85, Azad Colony,
Behta Hazipur, Loni Dehat, Ghaziabad,
UP.
............ Petitioner
V E R S U S
1. Rahul S/o Shiv Charan
R/o D503, Gali No. 2, 3rd Pusta,
Sonia Vihar, Delhi.
2. Ram Chander s/o Babu Lal
R/o H. No. 56 C, 4th Floor, Chanakay Marg,
Chhajjupur, Shahdara, Delhi.
........ Respondents
Date of Institution of DAR : 15.09.2018
Date of Judgment/Order : 17.11.2018
DAR No. 331/18
IN THE MATTER OF :
Pappu S/o Bande Ali
R/o H. No. 74, Dargah Wali Masjid,
Behta Hazipur, Loni, Ghaziabad, UP
............ Petitioner
DAR Nos. 330/18 & 331/18 1 of 25
Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
V E R S U S
1. Rahul S/o Shiv Charan R/o D503, Gali No. 2, 3rd Pusta, Sonia Vihar, Delhi.
2. Ram Chander S/o Babu Lal R/o H. No. 56 C, 4th Floor, Chanakay Marg, Chhajjupur, Shahdara, Delhi.
........ Respondents
Date of Institution of DAR : 15.09.2018
Date of Judgment/Order : 17.11.2018
A W A R D:
1. By this order, I shall dispose off two connected DAR petitions bearing No. 330/18 & 331/18 for grant of compensation.
2. Briefly the facts of both the DAR petitions are that on 30.06.2018 at about 9:30 PM, Mohd. Kayam (brother of deceased Mohd. Nadeem) was going on his scooty towards his residence at Loni Behta, Ghaziabad, UP from Rohini, Delhi and his brother namely Nadeem( deceased) also going his scooty bearing No. DL 5 SBP 8767 at a normal speed on his correct portion of the road and going towards their residence at Loni Behta, UP from Rohini, Delhi alongwith Aakib who was sitting on the pillion seat of the scooty. Whey they reached Wazirabad Khajoori Flyover, suddenly a delivery van bearing No. DL 1 LF 4070 which was being driven by its driver namely Rahul at a very high speed, rashly, negligently came from wrong side i.e. front side and hit scooty alongwith his brother and Aakib with a great force. Due to which, Scooty, Nadeem and Aakib fell down on DAR Nos. 330/18 & 331/18 2 of 25 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
the road and sustained multiple grievous injuries. Injured persons were taken to hospital with the help of public persons where their MLC were prepared. During the course of treatment, Mohd Nadeem died on 01.07.2018 and Aakib died on 02.07.2018. Regarding accident, FIR No. 506/18 was registered at P New Usmanpur. Thereafter, two DAR petitions i.e. petition No. 330/18 titled Faeemuddin V/s Rahul & Ors. & DAR petition No. 331/18 titled Pappu V/s Rahul & Ors. filed for compensation. The respondents in both the petitions are common.
3. The respondent No. 1 filed WS denying the averments made in the petition contending that this petition is not maintainable and there is no cause of action for filing of the same. As contended, no accident took place from the alleged vehicle and by the respondent No. 1. It is further contended that abvoementioned FIR is false, frivolous and baseless as the answering respondent No. 1 was neither involved in any accident on alleged date nor the vehicle was involved in any accident and the answering respondent as well as offending vehicle had been illegally framed / involved in the present case.
The respondent No. 2 filed WS denying the averments made in the petition contending that this petition is not maintainable and there is no cause of action for filing of the same. As contended, respondent has been falsely in the alleged accident as answering respondent has already sold out the vehicle No. DL 1 LF 4070 to respondent No. 1 on 20.05.2017. Agreement to sell was also executed and duly signed between the respondent No. 2 and 1 which is duly registered by notary public.
4. In view of the records, following issues were framed on 03.10.2018 in petition No. 330/18:
1. Whether deceased died on account injuries sustained in DAR Nos. 330/18 & 331/18 3 of 25 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
accident took place on 30.06.2018 at about 9:30 PM at Khajoori Flyover of PS New Usmanpur, Delhi within the jurisdiction of PS New Usmanpur due to rash and negligent driving of vehicle bearing No. DL 1 LF 4070 by respondent No. 1 ?OPP
2. Whether petitioner is entitled to compensation? If so, to what amount and from whom? OPP
3. Relief.
5. Following issues were framed in petition No. 331/18 on 03.10.2018:
1. Whether deceased died on account injuries sustained in accident took place on 30.06.2018 at about 9:30 PM at Khajoori Flyover of PS New Usmanpur, Delhi within the jurisdiction of PS New Usmanpur due to rash and negligent driving of vehicle bearing No. DL 1 LF 4070 by respondent No. 1 ?OPP
2. Whether petitioner is entitled to compensation? If so, to what amount and from whom? OPP
3. Relief.
The evidence were recorded in the matter for disposal of the petitions: Evidence in Petition No. 330/18
6. Petitioner / father of deceased filed his affidavit by way of evidence Ex. PW 1/ A and examined himself as PW1. Witness has relied upon the documents i.e. Ex. PW 1/ 1 to Ex. PW 1/4.
Petitioner also examined eyewitness of the accident i.e. Mohd.
DAR Nos. 330/18 & 331/18 4 of 25 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
Kayam as PW2 by way of affidavit Ex. PW 2/ A who deposed regarding the alleged accident. PE was thereafter closed.
7. Respondent No. 1 examined himself as R1W1 by way of affidavit Ex. R1W1/A. Witness has relied upon the documents i.e. Ex. R1W1/1 and R1W1/2. RE was thereafter closed.
Evidence in Petition No. 331/18
8. Petitioner / father of deceased filed his affidavit by way of evidence Ex. PW 1/A and examined himself as PW1. Witness has relied upon the documents i.e. Ex. PW 1/ 1 to Ex. PW 1/5.
Petitioner also examined eyewitness of the accident i.e. Mohd. Kayam as PW2 who deposed regarding the alleged accident. PE was thereafter closed.
9. Respondent No. 1 examined himself as R1W1 by way of affidavit Ex. R1W1/A. Witness has relied upon the documents i.e. Ex. R1W1/1 and R1W1/2. RE was thereafter closed.
10. I have heard Ld. Counsel for petitioner, ld. Counsel for respondent No. 1 and ld. Counsel for respondent No. 2 and considered the relevant materials on record. My issue wise findings are as below :
11. My findings on the aforesaid issues are as follows : Issue No. 1 in petition No. 330/18:
1. Whether deceased died on account injuries sustained in accident took place on 30.06.2018 at about 9:30 PM at Khajoori Flyover of PS New Usmanpur, Delhi within the jurisdiction of PS New Usmanpur due to rash and negligent driving of vehicle bearing No. DL 1 LF 4070 by respondent No. 1 ?OPP Issue No. 1 in petition No. 331/18: DAR Nos. 330/18 & 331/18 5 of 25 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
1. Whether deceased died on account injuries sustained in accident took place on 30.06.2018 at about 9:30 PM at Khajoori Flyover of PS New Usmanpur, Delhi within the jurisdiction of PS New Usmanpur due to rash and negligent driving of vehicle bearing No. DL 1 LF 4070 by respondent No. 1 ?OPP
12. To succeed in the claim petition in view of Section 166 of the MV Act, it is for the claimant to prove that vehicle which caused the accident was being driven rashly and negligently by its driver. Issue No. 1 in both the cases is taken up together. Petitioner Faeemuddin and Pappu were examined as PW1 and deposed about the facts of the case. They were crossexamined by ld. Counsel for respondents and during cross examination nothing has come forward in their testimony to disbelieve the version of PW. On the other hand, the testimony of RW did not rebut the testimony of PW to deny the claim of the petitioner and mere denial is not sufficient to rebut the claim of the petitioner. No witness was produced or examined by respondents as well to prove as to how accident occurred due to the negligence of the deceased/ injured; the respondent No. 1 was not at fault and was not driving the vehicle in rash and negligent manner. There is no reason to disbelieve the testimony of witnesses. DAR filed by IO which includes copy of FIR, site plan and MLC etc. I have gone through the record and documents in respect of the accident caused to the petitioner which is prima facie suggestive of negligence of respondent No. 1 in driving the vehicle at the time of accident.
Relied judgment in (Bimla Devi and Ors. v. Himachal Road Transport Corporation and Ors., (2009) 13 SC 530 and the judgment in Parmeshwari v. Amir Chand (2011) 11 SCC 635 and Kusum Lata v. Satbir, DAR Nos. 330/18 & 331/18 6 of 25 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
(2011) 3 SCC 646).
Hon'ble Supreme Court in Bimla Devi and Ors. V/s Himachal Road Transport Corporation and Ors, (2009) 13 SC 530 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."
13. In judgment of Hon'ble Delhi High Court in United India Insurance Company 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 sufficient to establish the fact that the driver of the vehicle in question was negligent in causing the accident particularly when there was no defence available from his side. 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. It was noted that there was nothing on record to show that the Claimant had any enmity with the driver of the offending vehicle so as to falsely implicate him in the case.
14. I have gone through the judgment of Hon'ble High Court of Delhi in 2009 ACJ 287, National Insurance Company Limited Vs. Pushpa Rana to examine the aspect of negligence wherein in the Hon'ble High Court held that: DAR Nos. 330/18 & 331/18 7 of 25 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
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 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 Court of Delhi in MAC App. No.200/2012 in case titled as United India Insurance Co. Ltd. V/s. Smt. Rinki @ Rinku & Ors decided on 23/07/2012 by Hon'ble Delhi High Court, held as under:
DAR Nos. 330/18 & 331/18 8 of 25 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
"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.
15. Therefore, in view of the criminal case record and statement of PWs, it is proved that the deceased Mohd. Nadeem and Aakib sustained fatal injuries on 30.06.2018 due to rash and negligent driving of offending vehicle bearing No. DL 1 LF 4070 driven by its driver i.e. respondent No.
1. The issue is decided accordingly.
Issue No. ii in DAR petition No. 330/18 :
(ii) Whether petitioner is entitled to compensation ? If so to what amount and from whom? OPP
16. The Hon'ble Supreme Court in Nagappa V/s Gurdayal Singh reported as 2003(2) SCC 274 ruled that the main guiding principle for determining the compensation is that it must be just and further that it must be reasonable. As observed in UP State Road Transport corporation V/s Trilok Chandra (1996) 4 SCC 362, the compensation awarded in such cases has primarily two elements; the pecuniary loss to the estate of the deceased resulting from the accident and the pecuniary loss sustained by members of his family on account of his death in addition to the conventional award under non pecuniary heads of damages( e.g. loss of consortium, loss of love and affection, funeral expenses etc).
17. The damages are to be based on the reasonable expectation on pecuniary benefit or benefits reduceable to money value. In General Manager Kerala State Road Transport Corporation V/s Susamma Thomas reported as (1994) 2 SCC 176, the court ruled that in fatal accident action, DAR Nos. 330/18 & 331/18 9 of 25 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
the measure of damages is the pecuniary loss suffered or likely to be suffered by each dependent as a result of death and that : "9.The assessment of damages to compensate the dependants is beset with difficulties because from the nature of things, it has to take into account many imponderables, e.g., the life expectancy of the deceased and the dependants, the amount that the deceased would have earned during the remainder of his life, the amount that he would have contributed to the dependants during that period, the chances that the deceased may not have lived or the dependants may not live up to the estimated remaining period of their life expectancy, the chances that that deceased might have got better employment or income or might have lost his employment or income altogether".
18. Hon'ble Supreme Court in Sarla Verma V/s DTC reported as (2009) 6 SCC 121 held as under:
16. ... "Just compensation" is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of wrong, as far as money can do so, by applying the well settled principles relating to award of compensation. It is not intended to be a bonanza, largesse or source of profits.
17. Assessment of compensation though involving certain hypothetical considerations, should nevertheless be objective. Justice and justness emanate from equality in treatment, consistency and thoroughness in adjudication, and fairness and uniformity in the decision making process DAR Nos. 330/18 & 331/18 10 of 25 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
and the decisions. While, it may not be possible to have mathematical precision or identical awards, in assessing compensation same or similar facts should lead to award in the same range. When the factors/ inputs are the same, and the formula/ legal principles are the same, consistency and uniformity and not divergence and freakiness, should be the result of adjudication to arrive at just compensation.
19. No amount of compensation can restore, eliminate or ameliorate the loss suffered on account of death ( or injury with lasting effect) the endeavor by such award is to repair the damage done so as to restore the victim( which includes the dependent) to the extent possible to the preaccidental position. The pecuniary damages are meant to take care of the prospective pecuniary loss of future income and the non pecuniary damages to compensate, to an extent, for pain and suffering , loss of love, companionship, expectation of life etc. The Hon'ble Supreme Court in R. K Malik V/s Kiran Pal reported as 2009 (14) SCC 1 observed as under:
22. It is extremely difficult to quantify the non pecuniary compensation as it is to a great extent based upon the sentiments and emotions. But, the same could not be a ground for non payment of any amount whatsoever by stating that it is difficult to quantify and pinpoint the exact amount payable with mathematical accuracy.
23. Human life cannot be measured only in terms of loss of earning or monetary losses alone. There are emotional attachments involved and loss of a child can have a devastating effect on the family which can be easily DAR Nos. 330/18 & 331/18 11 of 25 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
visualised and understood. Perhaps , the only mechanism known to law in this kind of situation is to compensate a person who has suffered non pecuniary loss or damages as a consequence of the wrong done to him by way of damages / monetary compensation. Undoubtedly, when a victim of a wrong suffers injuries he is entitled to compensation including compensation for the prospective life, pain and suffering, happiness, etc., which is sometimes described as compensation paid for "loss of expectation of life".
20. The challenge in determining the ' just and reasonable' compensation in such cases is mainly due to the fact that there is virtually no evidence in actual loss of earning of the deceased child. Hon'ble Supreme Court in R. K. Malik(supra) noted:
25. That being the position, the crucial problem arises with regard to the quantification of such compensation. The injury inflicted by deprivation of the life of a child is extremely difficult to quantify. In view of the uncertainties and contingencies of human life, what would be an appropriate figure, an adequate solatium is difficult to specify. The courts have therefore used the expression "standard compensation" and conventional amount/ sum"
to get over the difficulty that arises in quantifying a figure as the same ensures consistency and uniformity in awarding compensation."
21. I have gone through the testimony of the witnesses alongwith complete records. The petitioner has prayed the amount towards compensation from respondents. It is argued by Ld counsel for respondents that petitioner has not suffered any monetary loss on account of the fatal DAR Nos. 330/18 & 331/18 12 of 25 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
accident and therefore, he is not entitled for compensation.
There is no dispute at all that deceased received fatal injuries due to the accident. The factum of accident as well as death is not denied. The testimony of father of deceased remained unimpeached / uncontroverted and witness proved the relevant documents. Other relevant witness who was eyewitness of the said accident i.e. Mohd. Kayam was examined as PW2 who supported the claim of the petitioner as well and therefore there is no reason to disbelieve the testimony of petitioner. No contrary evidence has been brought on record by the respondents.
22. PW1 i.e. father of the deceased deposed that at the time of accident, his son was unmarried and 28 years of age and was working private service in private sector and earned Rs. 15,000/ per month. No documents has been filed / proved on record by the petitioner regarding income of the deceased. In the absence of any records, income of the deceased has to be considered on the basis of minimum wages applicable to the unskilled workman on the date of accident i.e. 30.06.2018. Therefore, income of the deceased is assessed as Rs. 13,896/ per month. As per Ex. PW 1/1, the date of birth of deceased is 10.05.1990. The accident took place on 30.06.2018. The age of the deceased is taken as about 29 years on the date of accident i.e. 30.06.2018. In the judgment Munna Lal Jain and Others Vs. Vipin Kumar Sharma and Others reported as MANU/SC/0640/2015 decided by Hon'ble Supreme Court on 15/05/2015 and National Insurance Company Limited V/s Pranay Sethi & Ors. in SLP ( Civil) No. 25590/2014 decided on 31.10.2017, it has been held that multiplier is to be used with reference to the age of the deceased. This Tribunal also does not find any basis on the contentions of the Ld counsel for respondent that as the deceased was bachelor, the multiplier applied should be of parents in view DAR Nos. 330/18 & 331/18 13 of 25 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
of the judgment of Delhi High Court titled Satya Narayan Chaudhary & Ors. V/s Mohd. Yamin & ors. In MAC App. No. 324/12 decided on 14.11.2017. In view of judgment of Hon'ble Supreme Court in Laxmidhar Nayak & Ors. V/s Juggal Kishore Behera & Ors reported as MANU/SC/1506/2017, petitioners are not entitled for compensation towards future prospects.
23. In the present case, there is 1 petitioner i.e. father of the deceased. It was further held that 50% of the deduction is to be made in case of bachelor.
Therefore, the total loss of dependency would be calculated as follows : Rs. 13,896/ X 12 (annual) X 17 (Multiplier) = Rs. 28,34,784/ Rs. 28,34,784/ Rs. 14,17,392/ ( 50 % deduction) = Rs. 14,17,392/.
24. Placing reliance upon the judgment of Supreme Court of India in National Insurance Company Limited V/s Pranay Sethi & Ors. in SLP ( Civil) No. 25590/2014 decided on 31.10.2017, the petitioners are entitled for the loss of estate and funeral expenses of Rs. 15,000/ and Rs. 15,000/ respectively.
Therefore, petitioners are also entitled for compensation under the following heads: Loss of dependency Rs. 14,17,392/ Loss of Estate Rs. 15,000/ Funeral Expenses Rs. 15,000/ Total Rs. 14,47,392/ I accordingly award an amount of compensation of Rs. 14,47,392/ in favour of the Claimant and against respondents.
Issue No. ii in DAR petition No. 331/18 :
(ii) Whether petitioner is entitled to compensation ? If
DAR Nos. 330/18 & 331/18 14 of 25
Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
so to what amount and from whom? OPP
25. The Hon'ble Supreme Court in Nagappa V/s Gurdayal Singh reported as 2003(2) SCC 274 ruled that the main guiding principle for determining the compensation is that it must be just and further that it must be reasonable. As observed in UP State Road Transport corporation V/s Trilok Chandra (1996) 4 SCC 362, the compensation awarded in such cases has primarily two elements; the pecuniary loss to the estate of the deceased resulting from the accident and the pecuniary loss sustained by members of his family on account of his death in addition to the conventional award under non pecuniary heads of damages( e.g. loss of consortium, loss of love and affection, funeral expenses etc).
26 The damages are to be based on the reasonable expectation on pecuniary benefit or benefits reduceable to money value. In General Manager Kerala State Road Transport Corporation V/s Susamma Thomas reported as (1994) 2 SCC 176, the court ruled that in fatal accident action, the measure of damages is the pecuniary loss suffered or likely to be suffered by each dependent as a result of death and that : "9.The assessment of damages to compensate the dependants is beset with difficulties because from the nature of things, it has to take into account many imponderables, e.g., the life expectancy of the deceased and the dependants, the amount that the deceased would have earned during the remainder of his life, the amount that he would have contributed to the dependants during that period, the chances that the deceased may not have lived or the dependants may not live up to the estimated remaining period of their life expectancy, the chances that DAR Nos. 330/18 & 331/18 15 of 25 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
that deceased might have got better employment or income or might have lost his employment or income altogether".
27. Hon'ble Supreme Court in Sarla Verma V/s DTC reported as (2009) 6 SCC 121 held as under:
16. ... "Just compensation" is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of wrong, as far as money can do so, by applying the well settled principles relating to award of compensation. It is not intended to be a bonanza, largesse or source of profits.
17. Assessment of compensation though involving certain hypothetical considerations, should nevertheless be objective. Justice and justness emanate from equality in treatment, consistency and thoroughness in adjudication, and fairness and uniformity in the decision making process and the decisions. While, it may not be possible to have mathematical precision or identical awards, in assessing compensation same or similar facts should lead to award in the same range. When the factors/ inputs are the same, and the formula/ legal principles are the same, consistency and uniformity and not divergence and freakiness, should be the result of adjudication to arrive at just compensation.
28. No amount of compensation can restore, eliminate or ameliorate the loss suffered on account of death ( or injury with lasting effect) the endeavor by such award is to repair the damage done so as to restore the victim( which includes the dependent) to the extent possible to the preaccidental position. The pecuniary damages are meant to take care of the DAR Nos. 330/18 & 331/18 16 of 25 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
prospective pecuniary loss of future income and the non pecuniary damages to compensate, to an extent, for pain and suffering , loss of love, companionship, expectation of life etc. The Hon'ble Supreme Court in R. K Malik V/s Kiran Pal reported as 2009 (14) SCC 1 observed as under:
22. It is extremely difficult to quantify the non pecuniary compensation as it is to a great extent based upon the sentiments and emotions. But, the same could not be a ground for non payment of any amount whatsoever by stating that it is difficult to quantify and pinpoint the exact amount payable with mathematical accuracy.
23. Human life cannot be measured only in terms of loss of earning or monetary losses alone. There are emotional attachments involved and loss of a child can have a devastating effect on the family which can be easily visualised and understood. Perhaps , the only mechanism known to law in this kind of situation is to compensate a person who has suffered non pecuniary loss or damages as a consequence of the wrong done to him by way of damages / monetary compensation. Undoubtedly, when a victim of a wrong suffers injuries he is entitled to compensation including compensation for the prospective life, pain and suffering, happiness, etc., which is sometimes described as compensation paid for "loss of expectation of life".
29. The method for computation of compensation for the date of death of children appeared to be non informed and consistence. The challenge in determining the ' just and reasonable' compensation in such cases is mainly DAR Nos. 330/18 & 331/18 17 of 25 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
due to the fact that there is virtually no evidence in actual loss of earning of the deceased child. Hon'ble Supreme Court in R. K. Malik(supra) noted:
25. That being the position, the crucial problem arises with regard to the quantification of such compensation. The injury inflicted by deprivation of the life of a child is extremely difficult to quantify. In view of the uncertainties and contingencies of human life, what would be an appropriate figure, an adequate solatium is difficult to specify. The courts have therefore used the expression "standard compensation" and conventional amount/ sum"
to get over the difficulty that arises in quantifying a figure as the same ensures consistency and uniformity in awarding compensation."
30. In view of the aforesaid legal positions, the question of law concerning the method of calculation of compensation in accident claim cases involving deaths of children in motor Vehicle accident was thoroughly examined and analyzed by Delhi High Court in MAC Apps. No. 554/2010 & Conn. decided on 13.05.2016. The Hon'ble High Court laid down the formula to be adopted for computation of just compensation in case of death of children so that there is no disparity while considering the nature of future prospects and inflationary trends affecting the loss of real value of money. It was considered that there can hardly ever be a clear proof of pecuniary loss resulting from death and the cases for compensation on account of death of children in Motor Vehicle Accident cases ought to be dealt with by considering the claim towards pecuniary damages ( towards loss of estate), in accordance with the age group wise categories as in RK Malik (Supra). The income is to be notionally assumed on the DAR Nos. 330/18 & 331/18 18 of 25 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
basis of the second schedule of the M.V. Act and the deduction of 1/3rd on account of personal and living expenses would be appropriate. The award of compensation must necessarily take into account non pecuniary damages.
Hon'ble Delhi High Court in para 71 of the judgment noted: Subject to all other requisite conditions being fulfilled, for the foregoing reasons, in order to bring about consistency and uniformity in approach to the issue, it is held that claims for compensation on account of death of children shall be determined as follows:
(i) Till such time as the law is amended by the legislature, or the Central Government notifies the amendment to the Second Schedule in exercise of the enabling power vested in it by Section 163A(3) of the Motor Vehicles Act, 1988, and except in cases wherein the prospects of employability and earnings ( in future or present) of the deceased child are proved by cogent and irrefutable evidence, this having regard, inter alia, to the academic record or training in special talents or skills, for computing the pecuniary damages on account of the loss to estate, the notional income of nonearning persons( Rs. 15,000/ p.a) as specified in the second schedule ( brought in force from 14.11.1994), shall be assumed to be the income of the deceased child, and taken into account after it is inflation corrected with the help of Cost inflation Index (CII) as notified by the Government of India from year to year under Section 48 of the Income Tax , 1961 , by applying the formula indicated hereinafter.
(ii) For inflation correction, the financial year of 19971998 shall be treated as the "base year" and the value DAR Nos. 330/18 & 331/18 19 of 25 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
of the notional income relevant to the date of cause of action shall be computed in the following manner: Rs. 15,000/ X A /331 {Wherein the figure of Rs. 15,000/ ' represents the notional income specified in the second schedule requiring inflationcorrection; 'A' represent the CII for the financial year in which the cause of action arose (i.e. the accident/ death occurred); and the figure of '331' represent the CII for the 'base year'}.
(iii) After arriving at an appropriate figure of the present equivalent value of the notional income ( i.e. inflation corrected amount), it shall be rounded off to a figure in next thousands of rupees.
(iv) The amount of notional income thus calculated shall be reduced to twothird, the deduction to the extent of one third being towards personal & living expenses of the deceased, the balance taken as the annual loss to estate ( hereinafter also referred to as "the multiplicand").
(v) For assessment of the pecuniary damages on account of the death of children upto the age of 10 years, the loss to estate shall be calculated, capitalizing the multiplicand, by applying the multiplier of ten (10).
(vi) For children of the age group of more than 10 years upto 15 years, the loss to estate shall be calculated by applying the multiplier of fifteen(15)
(vii) For Children of the age group of more than 15 years but less than 18 years, the loss to estate shall be calculated by applying the multiplier of eighteen (18).
DAR Nos. 330/18 & 331/18 20 of 25 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
(viii) After the pecuniary loss to estate has been worked out in the manner indicated above, an amount equivalent to the amount thus computed shall be added to it as the composite non pecuniary damages taking care of not only the conventional heads but also towards future prospects as awarded in R. K. Malik V/s Kiran Pal (2009) 14 SCC 1.
(ix) The final sum thus arrived at, appropriately rounded off, if so required to the nearest ( if not next) thousands of rupees, shall be awarded as compensation for the death of the child.
31. I have gone through the testimony of the witnesses alongwith complete records. The petitioner has prayed for compensation against respondents. It is argued by Ld counsel for respondents that petitioner has not suffered any monetary loss on account of the fatal accident and therefore, he is not entitled for compensation.
There is no dispute at all regarding the offending vehicle nor there is dispute that deceased received fatal injuries due to the accident. The factum of accident as well as death is not denied. As per the adhar card of the deceased, the date of birth of deceased is 09.01.2002. The accident took place on 30.06.2018. The age of the deceased is taken as about 17 year on the date of accident.
32. There is no evidence regarding the academic record of the deceased child. The death occurred on 30.06.2018 and therefore the CII ( cost inflation index) for the financial year 20182019 i.e. Rs. 1,192/ would apply. The age of the deceased child was about 17 years and therefore the calculation is to be made on multiplier of 18. The inflation calculated notional income comes to Rs. 54,018/ (15,000/ x 1,192/331), rounded off DAR Nos. 330/18 & 331/18 21 of 25 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
Rs. 55,000/. After deducting 1/3rd and applying the multiplier of 18, the pecuniary loss to estate is computed as ( Rs. 55,000/ x 2/3 x 18) Rs. 6,60,006/. Adding a similar amount towards composite non pecuniary damages, the total compensation works out to be Rs. (6,60,006/ x 2) = Rs. 13,20,012/.
I accordingly award an amount of compensation of Rs. 13,20,012/ in favour of the Claimant and against Respondents. Liability:
33. In this case, respondent No. 1 is driver and respondent No. 2 is owner of the offending vehicle therefore both are jointly and severally liable to pay the compensation to the petitioners. Interim award if any paid to injured/ petitioner be adjusted in the award amount. Award in DAR No. 330/18:
34. Resultantly, the DAR petition stands allowed. Respondent No. 1 and 2 are hereby directed to pay the compensation of Rs. 14,47,392/ within one month to the Claimant. Claimant is also entitled to the interest @ 09 % p.a. on the total compensation amount from the date of filing of petition till realization. (The New India Assurance Co. Ltd. Vs. Gopali & Ors., 2012 ACJ 2131 SC, Jiju Kuruvila & Ors. Vs. Kunjujamma Mohan & Ors., 2013 ACJ 2141 SC, Puttamma Vs. K.L. Naraynan Reddy & Ors., 2014 ACJ 526 SC).
35. Respondent No. 1 and 2 are directed to deposit the amount with UCO Bank, KKD Courts Branch, Delhi.
36. Out of the total award amount of Rs. 14,47,392/, UCO Bank, KKD Courts is directed to keep the amount of Rs. 12,50,000/ in 10 FDRs of Rs. 1,25,000/ each for the maturity period of one year to ten year respectively ( at the interval of one year each) with cumulative interest in the name of DAR Nos. 330/18 & 331/18 22 of 25 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
petitioner.
37. UCO Bank, KKD Courts is directed to release the remaining amount alongwith interest in favour of petitioner in his saving bank account after production of passbook of the bank account near the place of the residence with due endorsement that no debit card or cheque book has been issued or debit card / cheque book has been cancelled ( if issued).
38. Withdrawal from the said Account shall be permitted to the petitioner after due verification.
39. All the original FDRs shall be retained by the UCO bank, KKD Courts. However, the statement containing the FDRs number, amount, date of maturity and maturity amount shall be furnished by the UCO Bank to the petitioner/ beneficiary. On expiry of period of each FDR, the Bank shall automatically credit the maturity amount in Savings Account of beneficiary. The beneficiary shall intimate regarding his bank and account number for automatic credit of the maturity amount.
40. No loan, advance or premature discharge of the FDRs shall be permitted without permission of this court.
41. The maturity amount of the FDRs alongwith interest thereon be transferred to the saving bank accounts of the beneficiary.
42. The liberty is given to the petitioner/ injured to approach this court for release of further amount in event of any financial exigency.
43. On request of Claimant, bank shall transfer the Savings Account to any other branch in the name of petitioner and the bank of the petitioner are directed not to issue any cheque book or Debit Card to the account holder.
44. The award amount alongwith interest be deposited by respondent No. 1 and 2, within 30 days.
45. FormV shall be read as a part of the judgment.
DAR Nos. 330/18 & 331/18 23 of 25 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
Award in DAR No. 331/18:
46. Resultantly, the DAR petition stands allowed. Respondent No. 1 and 2 are hereby directed to pay the compensation of Rs. 13,20,012/ within one month to the Claimant. Claimant is also entitled to the interest @ 09 % p.a. on the total compensation amount from the date of filing of petition till realization. (The New India Assurance Co. Ltd. Vs. Gopali & Ors., 2012 ACJ 2131 SC, Jiju Kuruvila & Ors. Vs. Kunjujamma Mohan & Ors., 2013 ACJ 2141 SC, Puttamma Vs. K.L. Naraynan Reddy & Ors., 2014 ACJ 526 SC).
47. Respondent No. 1 and 2 are directed to deposit the amount with UCO Bank, KKD Courts Branch, Delhi.
48. Out of the total award amount of Rs. 13,20,012/, UCO Bank, KKD Courts is directed to keep the amount of Rs. 12,00,000/ in 10 FDRs of Rs. 1,20,000/ each for the maturity period of one year to ten years respectively ( at the interval of one year each) with cumulative interest in the name of petitioner.
49. UCO Bank, KKD Courts is directed to release the remaining amount alongwith interest in favour of petitioner in his saving bank account after production of passbook of the bank account near the place of the residence with due endorsement that no debit card or cheque book has been issued or debit card / cheque book has been cancelled ( if issued).
50. Withdrawal from the said Account shall be permitted to the petitioner after due verification.
51. All the original FDRs shall be retained by the UCO bank, KKD Courts. However, the statement containing the FDRs number, amount, date of maturity and maturity amount shall be furnished by the UCO Bank to the petitioner/ beneficiary. On expiry of period of each FDR, the Bank shall DAR Nos. 330/18 & 331/18 24 of 25 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
automatically credit the maturity amount in Savings Account of beneficiary. The beneficiary shall intimate regarding his bank and account number for automatic credit of the maturity amount.
52. No loan, advance or premature discharge of the FDRs shall be permitted without permission of this court.
53. The maturity amount of the FDRs alongwith interest thereon be transferred to the saving bank accounts of the beneficiary.
54. The liberty is given to the petitioner/ injured to approach this court for release of further amount in event of any financial exigency.
55. On request of Claimant, bank shall transfer the Savings Account to any other branch in the name of petitioner and the bank of the petitioner are directed not to issue any cheque book or Debit Card to the account holder.
56. The award amount alongwith interest be deposited by respondent No. 1 and 2, within 30 days.
57. FormV shall be read as a part of the judgment.
58. Copy of this judgment be placed in both DAR petitions bearing Nos.
Digitally signed by
330/18 & 331/18. GORAKH NATH
GORAKH PANDEY
Location: Court
Announced in open Court
NATH No.69, North East
District,
Karkardooma Court,
on this day of 17th November, 2018 PANDEY Delhi
Date: 2018.11.17
16:56:58 +0530
G. N. Pandey
Motor Accident Claims Tribunal(Pilot Court) Karkardooma Courts, Delhi DAR Nos. 330/18 & 331/18 25 of 25