Delhi District Court
Ramkripal Yadav (Father Of The ... vs Shri Ramesh Chand (Driver) on 29 January, 2009
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IN THE COURT OF MS. ANJU BAJAJ CHANDNA:
JUDGE: MACT(OUTER): ROHINI: DELHI
PETITION NO. 666/08
1. Ramkripal Yadav (Father of the deceased)
S/o Shri Dukharan Yadav
2. Smt. Anjira Devi (Mother of the deceased)
W/o Shri Ramkripal Yadav
3. Shri Vinod Yadav
S/o Shri Ramkripal Yadav
All r/o 51, Kanail Madhava,
Anchal - Rahika,
Distt. Madhuban, Bihar.
....Petitioners
Versus
1. Shri Ramesh Chand (Driver)
S/o Shri Tara Chand
J-1/658, Kartar Nagar,
Delhi-110053.
2. M/s. V K Jain & Sons (HUF) (Owner)
R/o 26, Khanna Market,
Tis Hazari, Delhi-110054.
3. M/s Oriental Insurance Co. Ltd.
Oriental House, A-25/27, Asaf Ali Road, Delhi-2. INSURER
....Respondents
DATE OF INSTITUTION: 17.10.2006 JUDGMENT RESERVED ON: 22.01.2009 DATE OF JUDGMENT: 29.01.2009 Contd/...
:2: AWARD:-
1. The petitioners have filed the present petition U/s 166 and 140, Motor Vehicles Act 1988 seeking compensation on account of death of Vijay Kumar Yadav to the tune of Rs. 20,00,000/-.
Petitioners no. 1 and 2 are the parents and petitioner no. 3 is the brother of the deceased.
2. The case of the petitioners is that on 09.09.2006 near Godown GTK Road-Siraspur Road, within the jurisdiction of PS Samaypur Badli, the accident had taken place in the manner that two trucks bearing no. HR-55-8501 and HR-38F-9252 with their back sides joined were being loaded and unloaded. While the deceased was closing the tail board of truck no. HR-55-8501, the driver of the offending truck bearing no. HR-38F-9252 suddenly started reversing his truck and dashed against truck no. HR-55- 8501 on which the deceased was working. The deceased sustained fatal injuries in the accident and was taken to the hospital where he scummbed to his injuries. It is further alleged that deceased was working as a helper in the truck bearing no. HR-55-8501 which belonged to Asha Cargo Movers Private Limited and he was earning Rs. 6,000/- per month. The accident was caused on account of rash and negligent driving by the driver of the offending vehicle. Compensation to the tune of Rs. 20,00,000/- is claimed on account of loss of love and affection, Contd/...
:3: loss of dependency, mental pain and agony etc.
3. Respondents no. 1 and 2 filed reply to the claim petition taking preliminary objection that petitioner no. 3 is not a necessary party as Class-I legal heirs are already alive being petitioners no. 1 and 2. It is contended that accident has not been caused due to the negligence of respondent no. 1/driver. It is submitted that truck was standing in the godown and was being unloaded. The vehicle on its own started moving back and dashed against truck no. HR-55-8501 which was standing at the back, in that process the deceased was hit and sustained fatal injuries. It is also alleged that vehicle was duly insured with respondent no. 3 and respondent no. 1 was having valid and effective driving license. Respondent no. 2 was also having valid fitness certificate of the offending vehicle and therefore liability is of Insurance Company/Respondent no. 3. On merits, the factum of accident is admitted and also the death of the deceased but it is denied that he was working with Asha Cargo Movers Private Limited at a monthly salary of Rs. 6,000/- per month. It is contended that driver of the truck on his own engages the helper with respect to which the company has nothing to do. It is admitted that deceased had come with the driver of the truck bearing no. HR- 55-8501 for learning helper's job. It is claimed that driver/respondent no. 1 has been falsely implicated. Further Contd/...
:4: denying the claim of the petitioner, it is prayed that petition be dismissed.
4. Respondent no. 3 filed separate written statement disputing the quantum of compensation claimed by the petitioners. It is, however, admitted that offending vehicle was insured with respondent no. 3 as on the date of the accident. Further denying the facts alleged by the petitioner, it is prayed that petition be dismissed.
5. From the pleadings of the parties following issues were framed vide order dated 21.03.2007:-
(i) Whether on 09.09.2006 at Siraspur Road, outside godown truck bearing no. HR-38F-9252 was reversed by its driver in a negligent manner and it hit deceased Vijay Kumar Yadav and caused his death?
(ii) Whether the alleged offending truck started moving on its own, if so its effect? OPR-1 and 2
(iii) Whether petitioners are entitled to compensation as prayed for, if so from which of the respondent? OPP
(iv) Relief.
6. The interim compensation to the tune of Rs. 25,000/- each to the petitioners no. 1 and 2 was granted vide order dated 30.03.2007.
7. Petitioner/Father of the deceased appeared as PW-1 and Contd/...
:5: tendered his affidavit in evidence Ex. PW-1/A. He also produced Election Cards of the petitioners as well as record of criminal case. He has been cross examined on behalf of the respondents.
8. PW-2 Vikram Mukhiya has been the eye witness of the accident. He tendered his affidavit Ex. PW-2/A supporting the case of the petitioners. He has also been cross examined on behalf of the respondents no. 1 and 2.
9. On the other hand, respondent no. 1 Ramesh Chand has appeared as RW1, tendered his affidavit in evidence Ex. RW-1/A. According to his testimony, he was having a valid driving license and was the driver of truck no. HR-38F-9252 but he was not driving the vehicle at the time of the accident. According to him, the accident had taken place as the offending truck on its own started moving back and hit the deceased. He has also been cross examined.
10. RW-2 Shri V K Jain has been the owner of the offending vehicle and tendered his affidavit in evidence Ex. RW-2/A. He deposed that deceased was not employed by the company at any point of time. The witness has also been cross examined. Thereafter the evidence was closed.
11. I have heard Ld counsel Sh Rahul Chaudhary for the petitioners, counsel Sh Prakash Chander for respondents no. 1 and 2 and counsel Ms. Mamta Chandra for respondent no. 3 and Contd/...
:6: given due consideration to the facts and circumstances, evidence and the record.
12. My findings on the above mentioned issues are as follows:
13. ISSUE NO: 1:-
Whether on 09.09.2006 at Siraspur Road, outside godown truck bearing no. HR-38F-9252 was reversed by its driver in a negligent manner and it hit deceased Vijay Kumar Yadav and caused his death?
It is claimed that accident has been caused by the rash and negligent driving of respondent no. 1 while he was driving truck no. HR- 38F-9252. On examination of the facts, circumstances and deposition of all the witnesses, I find that factum of accident has not been disputed. The manner of accident is explained by PW-2 to the effect that driver of truck bearing no. HR-38F-9252 suddenly started reversing his truck without seeing at his back and without the help of the helper with the result that it dashed against truck no. HR-55-8501 and hit the deceased and caused his death. PW-2 being the eye witness has been cross examined at length. The presence of PW-2 at the spot is not disputed on behalf of respondents no. 1 and 2. Otherwise also, PW-2 being employed with respondent no. 2 is the natural and probable witness. He has categorically deposed that vehicle no. HR-38F-9252 and HR-55- 8501 were standing in a single row and back of both the vehicles have been joined for the purpose of loading and unloading. The goods were Contd/...
:7: being loaded in vehicle no. HR-38F-9252 and unloaded from vehicle no. HR-55-8501. The witness has given the testimony in a clear and cogent manner thereby establishing negligence on the part of driver of vehicle no. HR-38F-9252. No inconsistency or contradictions have emerged from the testimony of PW-2 and I also find that respondents no. 1 and 2 have failed to take up their defence during cross examination of this material witness. No suggestion was put to this witness to the effect that driver of the offending vehicle was not there on the driving seat or that vehicle on its own started moving back and in the process caused accident to the deceased. The testimony of PW-2 has not been challenged on material aspects and in view of consistent and confident statement of PW-2 as corroborated by the investigation of criminal case, I am of the opinion that rash and negligent driving on the part of respondent no.1 stands proved.
The respondents, on the other hand have taken defence that offending vehicle started moving on its own and caused the accident. Respondent no. 1 even claimed that he was sleeping in the godown while the goods were loaded from his truck to a smaller truck. The eye witness has stated that goods were unloaded from vehicle no. HR-55- 8501 and they were being loaded to the offending vehicle. No question was put to PW-2 that the driver was sleeping or that goods were unloaded from the offending truck. The testimony of RW-1 appears to be unreliable as it is not probable that driver of vehicle would sleep while Contd/...
:8: the goods were being unloaded. Analyzing the testimony of all the witnesses and the documents, it is clearly established that accident was caused due to the negligence of driver of offending vehicle bearing no. HR-38F-9252 which resulted in death of Vijay Kumar Yadav. The issue is decided accordingly.
13. ISSUE NO.2:-
Whether the alleged offending truck started moving on its own, if so its effect? OPR-1 and 2 In view of my findings with respect to issue no. 1, I hold that respondents no. 1 and 2 have failed to prove their defence that accident had taken place due to the moving of the offending truck on its own. The respondents have failed to remain consistent on their defence as they have failed to put the same to the eye witness. Even if the version of respondent no. 1 is believed, it is the duty of driver to take care that while the truck is standing, its hand brakes are on. Circumstances clearly explain that driver of offending vehicle was at fault. I find no justification to rely upon the stand of respondents no. 1 and 2 and therefore issue is decided against the respondents.
14. ISSUE NO.3:
Whether petitioners are entitled to compensation as prayed for, if so from which of the respondent? OPP With respect to the quantum of compensation, petitioners have claimed income of the petitioner as Rs. 6,000/- per month. On Contd/...
:9: consideration of testimony of all the witnesses, I find that this fact has not been proved on the record. There is categorical denial on the part of respondents no. 1 and 2 that deceased was employed with respondent no. 2 as a helper. It has also been admitted by PW-2/eye witness that driver of the truck engaged the helper on his own and pay the salary. There is no documentary evidence to prove that deceased was employed with respondent no. 2 or that he was paid Rs. 6,000/- per month. It is not believable that PW-2 while working as driver was getting Rs. 4,200/- per month and deceased as a helper was getting Rs. 600/- per month. I, therefore, conclude that income of the deceased has not been proved.
In these circumstances, the income of the deceased is to be taken from minimum wages as notified by Delhi Government. It was Rs3312/- per month at the time of accident. It is well settled that future increase should also be considered by the court. It has been held in Urmilla Vs Vijender Singh, III (2003) ACC 557 that it is a pragmatic approach that as a person grows in life, his income or earnings increase with the passage of time due to experience or due to promotional avenues or expectations of increase in income in business matters. Even where income is reckoned as per rates of minimum wages, future increase may be considered having regard to the fact that minimum wages are showing increase every year.
Hon'ble High Court of Delhi has also held in its judgment in Contd/...
:10: FAO no. 396/01 dated 15.01.2007 that where monthly income of the deceased is taken from the minimum wages notified by Delhi Government, future increase should also be considered by the Court. Further increase has been considered by doubling the minimum wages and thereafter taking the mean thereof. Accordingly the average gross future monthly income can be arrived at by adding actual gross income at the time of death i.e Rs 3312/- per month to the maximum i.e Rs.6624/- (doubling the minimum wages) and dividing the said figure by two which comes to Rs.4968/- (6624+3312/2). The average gross monthly income of the deceased spread over his entire future would work out to be Rs. 4968/-. From this amount, 1/3rd is to be deducted as personal expenses of the deceased which comes to Rs.3,312/- (4968 x 1/3 = 1656, 4968-1656 = 3312).
15. In the present case, the multiplier is to be taken from the age of the parents i.e. Petitioners no. 1 and 2. According to Voter I-Cards placed on the record, age of father was more than 44 years and age of mother was more than 36 years at the time of accident. So we take average which comes to 41 years. As per Schedule-II of motor vehicles act, the multiplier of 15 is appropriate and applicable.
The calculation of compensation for loss of dependency now comes as under: -
Annual Income of the deceased which he would Contd/...
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have contributed to his family comes out to Rs39,744/-(3312 x 12)
Total compensation on the basis of
multiplier factor Rs5,96,160/-
(39,744x15)
16. The petitioners are also entitled to compensation on account of funeral expenses of Rs. 10,000/-, loss of love and affection and emotional support from their son of Rs. 25,000/-
and Rs. 10,000/- on account of mental pain and agony.
Thus, the compensation payable to petitioners is detailed as below:-
1. Loss of dependency Rs5,96,160/-
2. Funeral expenses Rs 10,000/-
3. Loss of love and affection Rs 25,000/-
4. Loss of mental pain and Rs 10,000/-
agony ___________ Total compensation Rs6,41,160/-
Less Interim Compensation Rs 50,000/-
___________
TOTAL Rs. 5,91,160/-
___________
The total compensation amount is rounded off to Rs. 5,92,000/-. In view of the above discussion, issue No. 3 is decided in favour of petitioners and against the respondents.
Contd/...
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17. RELIEF:-
In view of the aforesaid discussions, I hereby hold that petitioners no. 1 and 2 are entitled to a sum of Rs 5,92,000/- along with interest @ 7% per annum from the date of filing of present petition till its realization. The brother of the deceased is not entitled to compensation in view of the fact that petitioners no. 1 and 2 are the Class-I legal heirs of the deceased. The apportionment of compensation amongst the petitioners no. 1 and 2 shall be as under:
1. Shri Ram Kripal Yadav(father) Rs 2,96,000/-
2. Smt. Anjira Devi (mother) Rs 2,96,000/-
____________ Rs 5,92,000/-
____________
18. Out of the awarded amount of Rs. 5,92,000/-, a sum of Rs 2,00,000/- along with proportionate interest in case of petitioner No.1 be kept in fixed deposit for a period of five years in a nationalized bank. Rs 96,000/- be released to the petitioner No.1. So far as petitioner No. 2 is concerned, Rs 2,00,000/- be kept in fixed deposit for a period of five years in a nationalized bank. Rs 96,000/- be released in her favour. The FDRs shall have no facility of loan or advance. Petitioners can withdraw the interest monthly/quarterly. The FDRs will not be encashed without permission of the court. The petition is disposed off in aforesaid Contd/...
:13: terms. So far as liability to pay compensation is concerned, it is of respondents jointly and severally, however, respondent no. 3, i.e. M/s. Oriental Insurance Company Ltd being the insurer is directed to deposit the cheques in the names of the claimants within 30 days before this Tribunal. File be consigned to Record Room. ANNOUNCED IN THE OPEN COURT (ANJU BAJAJ CHANDNA) ON 29th day of January 2009 JUDGE MACT: ROHINI (OUTER): DELHI Contd/...
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Petition no. 666/08
29.1.2009
Present: None.
Petition disposed off vide my separate judgment announced in the open court. File be consigned to Record Room.
(ANJU BAJAJ CHANDNA) JUDGE MACT: ROHINI (OUTER): DELHI Contd/...