Delhi District Court
D-871/16 vs East Delhi Municipal Corporation ... on 16 March, 2018
IN THE COURT OF SH SANJAY SHARMA, PRESIDING OFFICER,
MOTOR ACCIDENT CLAIMS TRIBUNAL : EAST DISTRICT :
KARKARDOOMA COURTS : DELHI
D-871/16
Unique Case I.D. No.: MACT/8175/16
Pradeep Sahani
S/o Sh. Dashrath Sahani
R/o 91/150A, Safeda Jhuggies,
Near 9 Block, Geeta Colony,
Delhi-110031
Permanent Address:
Village Narain Pipar, PO Pansala,
PS Chhaurahi, District Begusarai,
Bihar-848202
..... Petitioner
VERSUS
East Delhi Municipal Corporation (EDMC)
Through Deputy Commissioner,
Shahdara (South Zone), Delhi
..... Registered Owner
..... Respondent
Date of Institution : 16.09.2016
Date of Arguments : 15.03.2018
Date of Judgment : 16.03.2018
JUDGEMENT
PLEADINGS:
1. Mr. Dashrath Sahani, (the deceased), 61 years, born on 01.01.1955, rickshaw puller, died as a result of injuries suffered in a motor vehicular accident that occurred at 11.45 p.m. on 24.06.2016 when JCB loader crane, belonging to East Delhi Municipal Corporation (EDMC), bearing registration No. DL 1M 5508 (the crane), allegedly reversed by the driver / Raj Kumar in high speed in rash and negligent manner, crushed him while he was sleeping on the footpath in front of Safeda Jhuggies, Geeta Colony, Delhi.
DAR No.: 871/2016 Pradeep Sahani versus MCD 1 of 11
2. Unfortunately, Raj Kumar / the driver of the crane committed suicide soon after the accident at about 03.00 a.m. on 25.06.2016 in the MCD workshop of EDMC in Jhilmil Colony, Delhi.
3. Mr. Pradeep Sahani (the petitioner), being son of the deceased, instituted accident claim case in the wake of Detailed Accident Report (DAR) submitted by ASI Ved Prakash, CMVAI Cell, East Delhi, under section 166 (4) of the Motor Vehicles Act, 1988 (MV Act) on the basis of evidence collected during investigation of FIR No. 243/16, initially, registered under section 279/337 of the Indian Penal Code, 1860 (IPC) at PS Geeta Colony impleading East Delhi Municipal Corporation (EDMC) as the respondent.
4. The respondent (EDMC), in its written statement, contended that the accident had not taken place due to negligence of its driver. It stated that the driver of the crane has already expired.
ISSUES:
5. On the pleadings, following issues were framed:
(i) Whether Mr. Dashrath Sahani suffered grievous injury in a motor vehicular accident on 24.06.2016 at about 11.45 p.m. at main road, in front of Safeda Jhuggies, Geeta Colony, Delhi within jurisdiction of PS Geeta Colony and died in the consequence due to rash and negligent driving of motor vehicle bearing registration No. DL 1M 5508 (JCB Crane) by Raj Kumar / driver?
(ii) Whether the petitioner is entitled to any compensation, if so, to what amount and from whom?
(iii) Whether the petitioner is entitled to interest on the award amount, if so, at what rate of interest and for which period?
(iv) Relief.
DAR No.: 871/2016 Pradeep Sahani versus MCD 2 of 11 PETITIONER'S EVIDENCE:
6. The petitioner appeared as PW-1. He filed evidence by way of affidavit Ex.PW1/1. He relied on his aadhaar card Ex.PW1/A, voter card and death certificate of the deceased Ex.PW1/B and detailed accident report (DAR) Ex.PW1/C.
7. PW-2 Sonu Kumar filed evidence by way of affidavit Ex.PW2/1. He deposed about the manner of the accident. He relied on his aadhaar Ex.PW2/A. RESPONDENT'S EVIDENCE:
8. The respondent (EDMC) examined R2W1 R. K. Singh, Executive Engineer, DEMS, Shahdara, South Zone, Delhi. He filed evidence by way of affidavit Ex. R2W1/A. FINAL ARGUMENTS:
9. I have heard arguments of Ms. Sulekha Thakur, Advocate for the petitioner and Sh. Naveen Singla, Advocate for the respondent (EDMC) and examined the evidence.
ISSUE NO. 1:
(i) Whether Mr. Dashrath Sahani suffered grievous injury in a motor vehicular accident on 24.06.2016 at about 11.45 p.m. at main road, in front of Safeda Jhuggies, Geeta Colony, Delhi within jurisdiction of PS Geeta Colony and died in the consequence due to rash and negligent driving of motor vehicle bearing registration No. DL 1M 5508 (JCB Crane) by Raj Kumar / driver?
10. In an action for compensation founded on the principle of fault liability under section 166 of MV Act, the burden to prove negligence is upon of the petitioner. However, the standard of proof is not that of proof beyond reasonable doubts as applied in criminal case. The evidence is judged on the touchstone of test of preponderance of probabilities.
DAR No.: 871/2016 Pradeep Sahani versus MCD 3 of 11
11. The petitioner, in order to prove rash and negligent driving of the crane, examined PW-2 Sonu Kumar. He deposed, on the strength of affidavit Ex.PW1/A, the sequence of events leading to the accident. He deposed that on 24.06.2016 at about 11.45 p.m., the deceased was sleeping on the footpath of main road, in front of Safeda Jhuggies, Geeta Colony, Delhi. He deposed that the driver of the vehicle bearing registration No. DL 1M 5508 reversed the vehicle and crushed the deceased under the vehicle. He was cross-examined by counsel for the respondent (EDMC). In his cross-examination, he stated that the distance between his house and the place of accident was about 2/3 steps. He stated that the place of accident was at a distance of 2/3 steps from the toilet and he was standing near the toilet. He reaffirmed that the accident was caused by JCB bearing registration No. DL 1M 5508. He stated that the vehicle was reversed in negligent manner. He stated that the driver fled away with JCB. He stated that the police recorded his statement 2/3 days after the accident. He stated that he has no relation with the deceased.
12. On holistic examination of the evidence of PW-2 Sonu Kumar, there is no reason to disbelieve his evidence on the aspect of the involvement of the crane and manner of the accident. He is a resident of the area. There is no reason to doubt his presence at the place of the accident. He proved that the deceased was sleeping on the footpath adjacent to main road in front of Safeda Jhuggies, Geeta Colony, Delhi. He proved that the driver reversed the crane and crushed the deceased who was sleeping on the footpath.
DAR No.: 871/2016 Pradeep Sahani versus MCD 4 of 11
13. The contention of Ld. Counsel for the respondent (EDMC) that PW-2 Sonu Kumar has stated, in his cross- examination, that he had not seen the driver of the crane and he cannot identify him would not help the respondent (EDMC). The respondent (EDMC) has not disputed the accident and involvement of the crane in the accident. It has stated, in its written statement, that the accident was not caused due to negligence of its driver. It further stated that Raj Kumar / the driver of the crane has already expired. It would not be out of place to mention that Sh. O.P. Vimal, Executive Engineer (EMS), Shahdara (South Zone), EDMC, Delhi, in reply to the notice under section 133 M.V. Act, stated that on 24.06.2016, Raj Kumar had taken the crane for collecting garbage from the garbage point near Safeda Jhuggie, Geeta Colony where he caused an accident leading to death of a person and thereafter, he committed suicide in EDMC workshop, Jhilmil Colony, Delhi.
14. The deceased was sleeping on the footpath. The driver reversed the crane without seeking any assistance from any person and he climbed over the footpath and crushed the deceased. Footpath is not a place for driving any motor vehicle. The driver of the crane did not observe due care while reversing the crane and demonstrated culpable carelessness as evident from the fact that the crane climbed over the footpath.
15. According to post-mortem report, the cause of death of the deceased was 'haemorrhage and shock due to ante- mortem injuries produced by blunt force / surface impact'. Due to the impact, the deceased suffered multiple fractures on his chest.
DAR No.: 871/2016 Pradeep Sahani versus MCD 5 of 11
16. It is therefore, proved that Mr. Dashrath Sahani died as a result of injuries sustained by him in a motor vehicular accident due to rash and negligent driving of the crane by Raj Kumar / driver.
17. Accordingly, issue No. 1 is decided in favour of the petitioner and against the respondent (EDMC). ISSUE NO. 2:
(ii) Whether the petitioner is entitled to any compensation, if so, to what amount and from whom?
18. The petitioner is major son of the deceased. He is married. He is earning Rs. 400 to 500/- per day. He is earning his livelihood from rickshaw pulling. The petitioner was not dependent upon the deceased. Accordingly, he is not entitled to loss of dependency.
Loss of estate:
19. The petitioner is major and well settled. The petitioner was not financially dependent on the earning of the deceased. The petitioner is entitled to an award towards loss of estate.
20. For computing the loss of estate occasioned on account of death of the deceased, assessment of his income is an integral component.
Assessment of income of the deceased:
21. The case of the petitioner is that the deceased was a rickshaw puller and he was earning Rs. 15,000/- per month. However, the petitioner has not led any evidence to prove avocation and income of the deceased. Therefore, income of the deceased is notionally assessed at Rs. 9,568/- per month, it being prevalent minimum wages payable to an unskilled worker.
DAR No.: 871/2016 Pradeep Sahani versus MCD 6 of 11 Deduction for personal and living expenses:
22. The petitioner was not financially dependent upon the deceased.
23. In Keith Rowe versus Prashant Sagar & Ors., MAC APP. 601/2017 decided on 15.01.2017, Hon'ble High Court of Delhi observed as under:
"9. (v) .....
Though the quantum of savings will vary from person to person, there is a need to standardize the quantum of savings for determining the loss of estate (where the claimants are not dependents) in the absence of specific evidence to the contrary. The quantum of savings can be taken as one-third of the income of the deceased where the spouses are having a common establishment and one-fourth where the spouses are having independent establishments. The above will apply where the family consists of non-dependent spouse/children/parents. Where the claimants are non-dependent brothers/sisters claiming on behalf of the estate, the savings can be taken as 15% of the income. The above percentages, one of course, subject to any specific evidence to the contrary led by the claimants."
(emphasis supplied)
24. Therefore, the loss of estate is taken to be one-third of the income of the deceased.
Application of multiplier:
25. The date of birth of the deceased, as mentioned in his election I-card Ex.PW1/B is 01.01.1955. Accordingly, the deceased was 61 years, 5 months and 24 days old as on the date of the accident (24.06.2016). Therefore, multiplier of 7 as applicable to age group between 61-65 years would apply.
DAR No.: 871/2016 Pradeep Sahani versus MCD 7 of 11 Future prospects:
26. The deceased was self-employed. He was above 60 years. In view of dispensation in National Insurance Co. Ltd. versus Pranay Sethi & Ors., Special Leave Petition (Civil) No. 25590 of 2014 decided on 31.10.2017, there shall not be any addition of income.
Loss of estate:
27. Applying the multiplier of 7 after deducting one-third from the notional income of the deceased, loss of estate is computed as (9,568 / 3 x 12 x 7) = Rs. 2,67,904 (rounded of) Rs. 2,68,000/-.
Non-pecuniary (general) damages:
28. In view of Pranay Sethi (supra), Rs. 15,000/- added towards funeral expenses.
Liability:
29. The respondent (EDMC) is the registered owner of the crane. It is liable to pay the compensation to the petitioner.
AWARD
30. The respondent (EDMC) is directed to pay compensation of Rs. 2,83,000/- alongwith interest @ 9% p.a. from the date of filing of DAR (16.09.2016) till the date of award. In case, the respondent (EDMC) fails to make payment within 30 days, it would be liable to pay the award amount alongwith interest @ 9% p.a. from the date of filing of the petition till realization. (Ref: Oriental Insurance Co. Ltd. vs Sangeeta Devi, MAC APP 165/2011 decided on 22.02.2016).
DAR No.: 871/2016 Pradeep Sahani versus MCD 8 of 11 Final directions:
31. Following direction dated 15.12.2017 in Sobat Singh versus Ramesh Chandra Gupta & Anr., MAC APP. 422/2009, an amount of Rs. 33,000/- will be released to the petitioner and balance amount of Rs. 2,50,000/- will be secured in the form of fixed deposit receipt in his name, as under:
Sl. No. Amount of FDR Period of FDR
1. Rs. 25,000/ 1 month
2. Rs. 25,000/ 2 months
3. Rs. 25,000/ 3 months
4. Rs. 25,000/ 4 months
5. Rs. 25,000/ 5 months
6. Rs. 25,000/ 6 months
7. Rs. 25,000/ 7 months
8. Rs. 25,000/ 8 months
9. Rs. 25,000/ 9 months
10. Rs. 25,000/ 10 months
11. Half of the interest component 11 months
12. Half of the interest component 12 months
32. Manager, UCO Bank, KKD Court, Delhi shall retain original FDRs. He shall provide the statement containing FDR numbers, amount, date of maturity and the maturity amount to the petitioner. He shall not encash any of the FDRs before their maturity date without permission of the Tribunal. On maturity, UCO Bank, KKD Court, Delhi shall transfer Fixed Deposit Receipts to the savings bank account of the petitioner.
DAR No.: 871/2016 Pradeep Sahani versus MCD 9 of 11
33. Copy of Award be given to the petitioner and respondent (EDMC) for compliance.
34. File be consigned to record room.
Announced in the open Court Sh. Sanjay Sharma
Dated: 16th March, 2018 Presiding Officer MACT (East)
Karkardooma Court, Delhi
Digitally signed by
SANJAY SHARMA
SANJAY Location: East
District,
SHARMA Karkardooma
Courts, Delhi
Date: 2018.03.16
16:18:26 +0530
DAR No.: 871/2016 Pradeep Sahani versus MCD 10 of 11
DAR No. 871/16
16.03.2018
Present : Petitioner in person.
Sh. Naveen Singla, Advocate for the respondent (EDMC).
Vide separate judgment, award is passed. The petitioner / Pradip Sahani has savings bank A/c No. 11260110136416 (IFSC: UCBA0001126) in UCO Bank, Chhaurahi, Distt. Begusarai, Bihar. Following direction dated 15.12.2017 in Sobat Singh versus Ramesh Chandra Gupta & Anr., MAC APP. 422/2009, Manager, UCO Bank, Chhaurahi, Distt. Begusarai, Bihar is directed not to issue any cheque book and / or debit card to the petitioner / Pradip Sahani and if the same have already been issued, the concerned bank is directed to cancel the same and make an endorsement on the passbook of the petitioner to the effect that no cheque book and / or debit card shall be issued without the permission of the Tribunal. The petitioner is directed to produce copy of the order before the concerned bank whereupon the bank is directed to make an endorsement on the passbook. The petitioner is directed to produce the original passbook with the necessary endorsement as well as aadhaar card and PAN card before the Tribunal. To come up for further directions on 15.05.2018. Dasti.
Sanjay Sharma PO MACT (East)/KKD Delhi/16.03.2018 DAR No.: 871/2016 Pradeep Sahani versus MCD 11 of 11