Delhi District Court
Smt. Santosh Rani vs Hawa Singh on 24 April, 2012
1
IN THE COURT OF SURINDER KUMAR SHARMA
JUDGE MACT EAST DISTRICT
KARKARDOOMA COURTS, DELHI
MACT Suit No.339/10
1. Smt. Santosh Rani
W/o Late Sh. Rajesh Kumar (Wife)
2. Mr. Sumit Kumar
S/o Late Sh. Rajesh Kumar (Son)
3. Mr. Amit Kumar
S/o Late Sh. Rajesh Kumar (Son)
4. Sh. Sultan Singh
S/o Sh. Gokal Chand (Father)
5. Smt. Raj Rani
W/o Sh. Sultan Singh (Mother)
All Residents of :
H.No. C1/277, Yamuna Vihar,
Delhi110053
... Petitioners
Vs.
1. Hawa Singh
S/o Sh. Ram Kishan
R/o 873/30, Vikas Nagar,
Sonepat ( Haryana) (Driver)
2. The General Manager,
Haryana Roadways, Sonepat,
Haryana. (Owner)
MACT Suit No.339/10 Page 1 /13
2
3.ICICI Lombard General Insurance Co. Ltd.
Mailing address :
ICICI Lombard General Insurance Co. Ltd.,
Zenith House, Keshvarao Khadye Marg,
Opposite Race Course, Mahalaxmi,
Mumbai400034.
.
.... Respondents Date of Institution : 22.10.2008 Date of Arguments : 10.04.2012 Date of Award : 24.04.2012 Award This is a petition U/ss 166/140 of Motor Vehicle Act 1988 (hereinafter called the Act) filed by the petitioner for grant of compensation.
Briefly stated the facts of the case as averred in the claim petition are that deceased Rajesh Kumar died due to the injuries sustained in the road accident,which took place on 6.4.2008 at about 10.30 a.m. at Gurgaon, Haryana, while he was driving motor cycle bearing No. DL3S AK4453, due to the negligence of driver of Haryana Roadways Bus bearing No. HR695523. It is alleged that the driver of the offending bus had illegally and wrongly parked MACT Suit No.339/10 Page 2 /13 3 the bus in the middle of the road at highway and while the deceased was taking side from a vehicle then his motorcycle struck against offending bus. As a result of which, the deceased sustained grievous injuries on his head and other parts of the body.
The notice of the claim petition was issued to the Respondents.
The Respondent No.1 Hawa Singh contested the claim and filed Written Statement wherein he denied the averments as made in the claim petition by the claimants. It is denied that the offending vehicle was standing in stationary position on the main road and accident was caused due to negligence of the driver of the offending bus. It is submitted that the Respondent has been falsely implicated in the present case on the false information furnished by the claimants.
The Respondent No.2 contested the claim and filed Written Statement. It its W.S., the Respondent No.2 submitted that no accident as alleged has taken place with the offending bus bearing No. HR69 5523 on 6.4.2008. It is submitted that the accident took place due to the negligence of the deceased as he hit the motorcycle against the stationary bus. It is further submitted that the offending bus MACT Suit No.339/10 Page 3 /13 4 is insured with ICICI Lombard, General Insurance Company Ltd. However, the Respondent No.2 denied the other averments of the claimants.
The Respondent No.3. ICICI Lombard, General Insurance Company Ltd. contested the claim and filed Written Statement. In its W.S. the Respondent No.3 stated that the offending vehicle No. HR69 5523 was insured with it. However, the Respondent No.3 denied the other averments of the claimants.
On 26.5.2009, on the pleadings of the parties, following Issues were framed by my Ld. Predecessor :
1. Whether Sh.Rajesh Kumar sustained fatal injuries due to rash and negligent driving of Haryana Roadways Bus No. HR69 5523 by R1 ? OPP
2. Whether Sh.Rajesh Kumar sustained fatal injuries due to rash and negligent driving of motorcycle No. DL3SAK4453 and if so, to what effect? OPR1
3. Whether the alleged accident did not take place with the alleged Haryana Roadways Bus and if so, to what effect ? OPR2
4. Whether the petitioner is entitled to get any compensation, if so, from whom and of what MACT Suit No.339/10 Page 4 /13 5 amount ?
5. Relief.
The petitioners have examined three witnesses in support of their case.
None of the Respondent has examined any witness in support of its case.
I have heard Sh. Abhishek Kumar Advocate for the Petitioners & Sh. Sachin Batra Advocate for Respondent No.3/ Insurance Company. I have also perused the file.
My findings on the Issues are as under :
Issues No.1 In order to prove the this Issue, the petitioners have examined PW2 Sh. Saurabh, who is an eye witness of the accident. PW2 Sh. Saurabh has filed his affidavit Ex. PW2/A. He stated that on 6.4.2008 he and his cousin brother Rajesh Kumar were proceeding towards the plot No. 360 Sector 9A, Gurgaon. He was driving his motorcycle No.DL5S2941 and Rajesh Kumar was driving his own motorcycle No. DL3SAK4453. He further stated that when they reached ahead of Shankar Chowk Flyover at about 10.30 a.m. and crossed the DLF Square Building. They were taking side from a vehicle then the motorcycle of Rajesh Kumar MACT Suit No.339/10 Page 5 /13 6 struck against Haryana Roadways Bus No. HR695523 as the driver of the said bus had illegally and wrongly parked the bus in the middle of the road at highway. He further stated that as a result of the impact, the deceased fell down on the road with motorcycle and sustained grievous injuries on his head and other parts of the body. He stopped a private vehicle and rushed Rajesh Kumar to the hospital where he was declared dead. He further stated that the accident was caused due to wrong parking of the offending vehicle in the middle of the road in a rash and negligent manner by the driver.
It was submitted Ld. Counsel for the petitioners that the accident took place due negligence of the driver of offending bus as he has parked the same in the middle of the road.
On the other hand, it was submitted by Ld. Counsel for the Respondent No.3 Insurance Company that the accident took place due to the negligence of the deceased as he struck his motor cycle against the offending stationary bus from behind. It was further submitted that the FIR registered against the driver of the offending bus regarding the accident was cancelled by police because the driver of the offending bus was not at fault.
MACT Suit No.339/10 Page 6 /13 7The perusal of the testimony of PW2 Sh. Saurabh reveals that he has categorically stated in his statement that the driver of the offending bus had wrongly parked the said bus in the middle of the road. Nothing could come out in the cross examination of PW2 which could shake his credibility. It is important to note that the bus was parked on the road without any indication or light. The driver of the bus was not examined to prove that he was not at fault and the accident did not take place due to his fault. Parking of a vehicle on the road without any indication or light amounts to negligence on the part of the driver. It is not the case of the Respondent/driver that he had parked the bus on a side with a light and indication. The Respondent No.2 has submitted in its W.S. that the accident did not take place with the offending vehicle. No evidence in this regard was produced by the Respondent to support this plea. On the other hand, PW2 Saurabh categorically stated that the accident took place with the offending vehicle when it was parked in the middle of the road illegally and wrongly. The cancellation of FIR is not a ground for rejecting the claim of the claimants.
In a judgment passed by Hon'ble Delhi High Court in MAC. APP. 609/2009 decided on 12.4.2010 Mayur Arora Vs. Amit @ Pange and Ors. it was held that the motor MACT Suit No.339/10 Page 7 /13 8 accident cases should be conducted as the summary procedure. It was also held that proceedings under the motor vehicle act are inquiry.
In a judgment passed by Hon'ble Supreme Court of India in N.K.V. Bros.(P) Ltd. Vs. Karumai Ammal and Ors. 1980 SCR(3) 101, it was held that in Indian Penal CodeSection 304A requirement of culpable rashness more drastic than negligence sufficient under the law of tort to create liability.
It is also important to note that the testimony of PW2 Saurabh was not controverted by the Respondent driver. PW2 Saurabh has also stated Rajesh Kumar died due to the injuries sustained by him in the accident.
Therefore, in view of the above discussion, it is proved that the deceased Rajesh Kumar sustained fatal injuries due to the rash and negligent driving of Haryana Roadways Bus bearing No. HR695523 driven by Respondent No.1.
Issue is decided accordingly.
Issue No.2 and 3The onus to prove these issues are on the MACT Suit No.339/10 Page 8 /13 9 Respondent No.1 and No.2 They have led no evidence to prove the said Issues. Therefore, the Respondents have failed to prove that the deceased sustained fatal injuries due to the rash and negligent driving of motorcycle No. DL3S4453. It is also not proved that the accident did not take place with the Haryana Roadways Bus.
The Issues are decided accordingly.
Issue No. 4In the Issue No.1 above, it has been held that deceased Rajesh Kumar sustained fatal injuries in the accident due to the negligence of the offending Bus bearing No. HR69 5523, so, the claimants/petitioners are entitled to compensation.
PW1 Smt. Santosh Rani, who is the wife of deceased has filed her affidavit Ex.PW1/A. She has stated her affidavit that at the time of accident, the deceased was working as building construction supervisor with a Builder Contractor and was earning Rs. 20,000/ per month. The petitioners have examined PW3 Sh. Vimal Kumar employer of the deceased Rajesh Kumar. He has stated in his affidvit that deceased was earning a salary of Rs.25,000/ at the time of accident. In his cross examination, he has stated that he has not brought any record with regard to the salary of the MACT Suit No.339/10 Page 9 /13 10 deceased. Therefore, in my view, the petitioners have failed to prove that the deceased was earning Rs.25,000/ at the time of his death. In the facts and circumstances of the case, I presume the monthly income of the deceased Rajesh Kumar as Rs.12,000/. Thus, taking into consideration the income of deceased to be Rs.12,000/ & 50 % is added towards future prospects, as per judgment of Hon'ble Supreme Court of India in a case reported as Smt. Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr. 2009 ACJ 1298, which comes out Rs.18,000/ per month. Out of this income, 1/4th is to be deducted on account of personal expenses of the deceased, as per judgment of Hon'ble Supreme Court of India in a case reported as Smt. Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr. 2009 ACJ 1298 (supra) as in the present case, there are five dependents. So, after deducting oneforth from Rs.18,000/ the monthly contribution of the deceased towards the family comes out to Rs.13,500/. Therefore, the annual contribution of the deceased towards the family comes to (Rs.13,500 x 12) Rs.1,62,000/.
PW1 Smt. Santosh Rani has stated in her affidavit Ex. PW1/A that at the time of accident, the age of the deceased was 45 years. As per the judgment of Hon'ble MACT Suit No.339/10 Page 10 /13 11 Supreme Court in Smt. Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr. ( Supra ) the multiplier in this case is 14.
Hence, the total amount on account of loss of dependency to the family comes out to Rs. 1,62,000 x 14 = Rs.22,68,000/.
An amount of Rs. 5000/ is awarded to the family on account of funeral expenses.
An amount of Rs. 10,000/ is awarded to the family on account of loss of love and affection.
An amount of Rs. 10,000/ is awarded to the family on account of contribution towards loss of Estate.
Thus the petitioners are entitled to following compensation :
Compensation on account of : Rs.22,68,000// loss of dependency Funeral Expenses : Rs.5,000 / On Account of Loss of Love & : Rs.10,000/ Affection on account of contribution : Rs.10,000/ towards loss of Estate Total : Rs.22,93,000/ MACT Suit No.339/10 Page 11 /13 12 In the present case, the offending bus bearing No. HR695523 was insured with Respondent No.3 ICICI Lombard, General Insurance Company Ltd., so, in my view the Respondent No. 3 ICICI Lombard, General Insurance Company Ltd. is liable to make the payment to the claimants. Issue No. 5 ( Relief ) In view of the findings on the issues above, a compensation of Rs.22,93,000/ is granted to claimants /petitioners along with the interest at the rate of Rs.7.5 % per annum from the date of filing of the petition till its realization. The compensation is to be paid by Respondent No.3 ICICI Lombard, General Insurance Company Ltd.
Vide order dated 4.6.2009 my Ld. Predecessor passed an interim award in this case whereby he granted an compensation of Rs. 50,000/ to the petitioners. So, after deducting Rs.50,000/ from compensation of Rs.22,93,000/ the remaining amount i.e. Rs.22,43,000/ be granted to the petitioners/claimants.
It is ordered that out of the amount, 50% be paid to petitioner No. 1 Smt. Santosh Rani, who is the main sufferer being the wife of the deceased. It is further ordered that 50 % of her awarded amount be kept in a nationalized bank in the form of FDR for the period of five MACT Suit No.339/10 Page 12 /13 13 years.
It is further ordered that petitioners No. 2 to No. 5 would get 12½ % each of the awarded amount. Half of their compensation amount would be kept in the form of FDR in a nationalized bank for the period of five years.
No order as to cost.
Copy of this award be supplied free of cost to the parties.
The file be consigned to record room. Announced in Open court 24th April 2012 ( Surinder Kumar Sharma ) Judge MACT,East District Karkardooma Courts, Delhi MACT Suit No.339/10 Page 13 /13