Delhi District Court
(1) Sh. Dev Sharan Sahni vs Sh. Prakash Chand Bhashi on 22 January, 2007
IN THE COURT OF SMT. PRATIBHA RANI,
JUDGE/MACT/DELHI
***
Suit No.31/05 (1) Sh. Dev Sharan Sahni, S/o Sh. Bhikha Sahni, (2) Baby Sugandhi, (deleted vide order dt.25.2.05) D/o Sh. Dev Sharan Sahni, Both R/o H. No. 13, Village Bhelva, PO Bhelva, Distt. E-Champaran, Bihar.
..........Petitioners Versus
1. Sh. Prakash Chand Bhashi, (Driver) S/o Sh. Ram Lal Bhashi, R/o Village Suja Khera, Tehsil & Thana Duganla, PO Vikai, Zilla Chittorgarh, Rajasthan.
2. JMC Projects Pvt Ltd., (Owner) JMC House, Level 2, Parimal Garden, Ambawadi, Ahmedabad, Gujarat,
3. The Oriental Insurance Company Ltd., 88, Janpath, Connaught Place, New Delhi.
..........Respondents Date of Institution : 25.2.2005 AWARD The present claim petition has been filed by Sh. Dev Sharan Sahni (father) and Baby Sugandhi (minor sister) of deceased Deep Lal Sahni claiming compensation of Rs.10 lacs for his untimely death in RTA on the night intervening 1 18/19.8.2004. In brief the averments made in the petition are that on that night Deep Lal Sahni was sleeping at extreme corner of vacant public land near make-shift office of JMC Company near pucca metalled road going to Chaukhandi, Khayala from Subhash Nagar Mod. One of his co-worker Budhan Mehta was also sleeping with him. At about 2.00 am a truck No. GJ-1A-T- 6604 being driven by its driver at a very high speed and in a rash and negligent manner came and left the pucca metalled road and came at the extreme corner of vacant open public land near Company make-shift office of JMC Projects and crushed Sh. Deep Lal Sahni under its left front wheel as a result of which he suffered fatal injuries. Police came at the spot and arrested the truck driver and a case FIR No.646/04 was registered against him. The dead body was sent to DDU Hospital for postmortem. Petitioners have claimed the compensation from respondent No.1
- the driver, respondent No.2 - the owner and respondent No.3 - the insurer of the offending vehicle No. GJ-1A-T-6604.
2. Notice of the petition was sent to the respondents. Respondent No.1 and 2 have failed to appear despite service of the notice and were proceeded exparte on 12.4.2005. Respondent No.3 - the insurance company has filed the written statement in which preliminary objection has been raised that the driver of the offending vehicle was not holding a valid 2 driving licence and terms and conditions of the policy have also been contravened, hence it has no liability to pay any amount of compensation. A plea has also been taken that the accident took place in the factory premises of respondent No.2 i.e. JMC Projects (P) Ltd. which is a private place and not a public place, hence as per terms and conditions of the policy no liability can be imposed on it. On merits it has been admitted by respondent No.3 that the offending vehicle was insured with it vide policy No. 141200/31/2004/6056 valid for the period 29.9.2003 to 28.9.2004 in the name of respondent No.2.
3. On the pleadings of the parties following issues were framed on 13.2.2006 :-
(1) Whether the death of Deep Lal Sahni was caused due to rash and negligent driving of offending vehicle No. GJ-1A-T-6604 being driven by respondent No.1?
(2) To what amount the petitioners are entitled for compensation and from whom?
(3) Relief.
4. Petitioner No.1 has examined himself as PW1 and Sh. Budhan Mehto, an eye witness has been examined as PW2.
Insurance company has also examined Sh. M.S. Rawat, Administrative Officer as R3W1 to prove that the place of accident is not a public place, thus insurance company is not liable to pay any compensation.
5. I have heard ld. Counsels for the petitioner and 3 insurance company and carefully gone through the record. My findings on the above issues are as under :-
ISSUE NO.1 - NEGLIGENCE
6. PW-1 Sh. Dev Sharan Sahni, the father of the deceased has filed his affidavit to the effect that his son Sh. Deep Lal Sahni was 22 years of age at the time of accident and he was working with JMC Projects and drawing a salary of Rs.6000/- pm. He has further stated that his son died in an accident on 19.8.2004 caused by truck No. GJ-1A-T-6604 being driven by respondent No.1. He has also placed on record the certified copies of criminal case record as Ex.PW1/1 to 16, copy of election identity card as Ex.PW1/17 and ration card as Ex.PW1/18. In cross examination, he has admitted that he is not an eye witness to the accident as he was residing at his native place in Bihar.
7. PW-2 Sh. Budhan Mehto, an eye witness has stated that he was working as an iron fitter with contractor Mohd. Shamim who had been assigned the project of building the metro line project from Uttam Nagar to Connaught Place and that he was employed as a casual iron fitter with JMC Projects. He has further deposed that the deceased was also engaged with the same company and during the night time, they were sleeping in the open space on a public land where barricades have been put 4 for keeping the building material and providing space for sleeping for the workers as it is vast open public place near pucca metalled road. He has further stated that on the night intervening 18/19.8.2004, he alongwith Sh. Deep Lal Sahni and some other workers was sleeping and Sh. Deep Lal Shani was sleeping at the extreme corner. At about 1.45 am, he woke up to drink water and relieve himself. While he was returning, he saw truck No. GJ-1A-T-6604 being driven by its driver at a high speed and in a rash and negligent manner coming without blowing any horn. The truck left the pucca metalled road and came at the extreme corner of the vacant land where workers were sleeping and hit Sh. Deep Lal Sahni who was sleeping on the extreme corner. After being hit by the said truck, Sh. Deep Lal Sahni died at the spot whereas he also received some minor injuries. The name of the truck driver was revealed as Prakash Chand Bhashi. He made hue and cry and somebody informed the police. The police came and arrested the driver, impounded the offending vehicle. Deceased was also taken to DDU Hospital. He has stated that this accident has taken place due to rash and negligent diving of respondent No.1.
8. From the certified copies of the criminal case record specially the FIR, it is clear that PW2 Sh. Budhan Mehto has made the complaint to the police as an eye witness giving all the 5 details as to how this accident has taken place. The endorsement of the Investigating Officer also shows that the deceased was found lying under the truck No. GJ-1A-T-6604. The postmortem report also proves that the cause of death was due to brain laceration. Thus the statement of PW2 Sh.Budhan Mehto is fully corroborated by the police investigation as respondent No.1 Prakash Chand Bhashi has been charge sheeted by the police for the offences punishable under Section 279/304-A IPC. From the evidence on record it is established that death of Sh. Deep Lal Sahni has taken place due to rash and negligent driving of truck No. GJ-1A-T-6604 by respondent No.1. This issue is decided accordingly.
ISSUE NO.2 - COMPENSATION
9. In this case the factum of accident is not disputed. There is also no dispute about the validity of driving licence of respondent No.1 and insurance policy. However, the insurance company is denying its liability to pay the compensation only on the ground that the place where accident has taken place, is not a public place as it was barricaded. The contention of ld. Counsel for the insurance company is liable to be rejected for the reason that even if the place was barricaded it does not cease to be a public place absolving the insurance company of its liability to pay the compensation. If judgment is needed on this point, 6 reliance can be placed on National Insurance Co. Ltd. versus Chitra and Ors, 2005 ACJ 609. In this case, the accident occurred in a private quarry and the point in issue was whether private quarry is a public place. The insurance company disputed its liability to pay the compensation contending that the place of accident being private quarry, as per terms of the policy, it is not liable to pay the amount. Rejecting the contention of insurance company, in para 5 and 6 it was held as under :-
"5. With reference to the said contention, learned counsel appearing for respondent Nos.1 to 5 claimants submitted that in view of the fact that in the place of accident the public have access and in the light of the decision of this court reported in G. Bhuvaneswari Vs. M. Sornakumar, 2000 ACJ 1343 (Madras), the Tribunal is justified in granting compensation in favour of the claimants.
6. There is no dispute that in the above referred Division Bench decision, placing reliance on the decision of the Full Bench reported in United India Insurance Co. Ltd. Vs. Parvathi Devi, 1999 ACJ 1520 (Madras), the Division Bench has held that public place includes where public have an access whether free or controlled in any manner."
10. Coming to the facts of the instant case, merely because the place where metro project was in progress and barricaded for storing the material and providing space to workers to sleep during night is no ground to deny the compensation by the insurance company. Now coming to the quantum of compensation, the deceased in this case was 22 years of age at 7 the time of his death and was unmarried. So far as petitioner No.2 is concerned, she is the younger sister of the deceased and cannot be termed as legal representative and dependent on the deceased, hence deleted vide order dated 25.2.2005. So only petitioner No.1, father of the deceased is the legal representative of deceased Sh. Deep Lal Sahni. Petitioners have claimed that deceased Deep Lal Sahni was working as Iron Fitter with JMC Projects and was getting Rs.6000/- pm as salary, however, no documentary evidence in this regard has been proved on record by the petitioners. Petitioners have also not placed on record any document to show the educational qualification of the deceased. In these circumstances, minimum wages as payable to an unskilled worker at the relevant time have to be considered for ascertaining the income of the deceased. As per minimum wages rate, in August, 2004 the minimum wages payable to an unskilled worker were Rs.2894.90p or say Rs.2900/- pm. Hence, I take the annual income of the deceased as Rs.34800/-. In view of the law laid down by the Apex Court in case Bijoy Kumar Dugar versus Bidyadhar Dutta & Ors. II(2006)ACC 36 (SC), taking the income of the deceased Sh. Deep Lal Sahni at the time of his death as Rs.34,800/-p.a. and deducting one third of the said income for the personal expenses of the deceased, the total yearly loss of dependency to the petitioners comes to Rs.23,200/- 8 (Rs.34800 - 11600).
11. Now the question comes as to what should be the appropriate multiplier to be applicable in this case. Petitioner No.1 has placed on record photocopy of his election identity card showing his age as 36 and date of issue is 1.1.95 meaning thereby that in the year 2004, he was 45 years of age. In view of the judgment in case General Manager, Kerala State RTC Vs. Susamma Thomas & Ors. SLP (Civil) No.9583 of 1992 decided on 6.1.1993, the age of petitioner No.1 i.e. father of the deceased being on higher side i.e. 45 years, the multiplier applicable to his age group is to be taken for ascertaining the total loss of dependency to the petitioner. As per II Schedule of MV Act, the appropriate multiplier applicable to the present case is '13'. However, in the case Managing Director, TNSTC Ltd. Vs. K.L. Bindu & Ors. (2005) 8 SCC 473, the victim was 34 years old and the Apex Court has adopted the multiplier of '13' instead of '17' and it was held in para 10 as under :-
"10. The assessment of damages to compensate the dependents 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 dependents, the amount that the deceased would have earned during the remainder of his life, the amount that he would have contributed to the dependents during that period, the chances that the deceased may not have lived or the dependents may not live up to the estimated remaining period of their life expectancy, the chances that the deceased might have got better employment or income or might have lost his 9 employment or income together."
12. In the circumstances, I adopt the multiplier of '11' instead of '13'. Hence, the total loss of dependency to the petitioners comes to Rs.2,55,200/- (Rs.23,200 X 11). Thus, the petitioner No.1 is awarded a sum of Rs.2,55,200/- towards loss of dependency. Petitioner No.1 is also awarded a sum of Rs.20,000/- towards conventional charges. In this case no interim award was passed. Thus, the petitioner No.1 is awarded a total compensation of Rs.2,75,200/- on account of death of his son resulting from the said accident.
13. Now the question arises from whom the petitioner No.1 is entitled to receive the compensation. Respondent No.1 and 2 being the driver and owner of the offending vehicle are liable to pay the amount of compensation. The photocopy of the insurance policy Ex.RW1/2 placed on record shows that the offending vehicle No.GJ-1A-T-6604 was insured with respondent No.3 for the period 29.9.2003 to 28.9.2004. Hence, respondent No.3 being the insurer of the offending vehicle is vicariously liable to pay this compensation to the petitioner No.1. RELIEF
14. In view of my finding on the above issues, the petitioner no.1 is entitled to Rs.2,75,200/- as compensation which respondent No.3 being the insurer of the offending vehicle is 10 liable to pay. The petitioner No.1 is also to be compensated for the delay in getting the awarded amount. Accordingly, I allow an interest @ 6% p.a. from the date of filing of petition till realization. Hence, respondent No.3, the Insurance Company is directed to pay the awarded compensation of Rs.2,75,200/- with interest @ 6% p.a. from the date of filing of the petition within 30 days from the date of order, failing which, petitioner No.1 would be entitled to future interest at this rate till the date of payment and the future interest will be deducted from the salary of the employee of respondent No.3 who will be responsible for delay.
15. Out of the total award of Rs.2,75,200/-, a sum of Rs.1,50,000/- shall be kept in any Nationalized Bank in the shape of Fixed Deposit for a period of five years. No loan or advance on the said fixed deposits shall be permitted without the prior permission of this court. Petitioner No.1 can withdraw quarterly interest on his fixed deposit. However, in case of any emergent need, the petitioner no.1 may approach this court for pre-mature withdrawal of any amount. File be consigned to Record Room. Announced in the open Court 22.1.2007 ( PRATIBHA RANI ) Judge/MACT/Delhi 11