Delhi District Court
R/O. A83/C vs Sh. Dharmender Kumar on 23 November, 2011
IN THE COURT OF MS. SWARANA KANTA SHARMA:
JUDGE : MACT : (CENTRALDISTRICT) : DELHI.
Suit No. 13/11
Unique ID No.02401C1466122008
Himanshu, (6 years)
S/o Late Sh. Virender Giri.
R/o. A83/C, Block B,
Shiv Kunj, Sant Nagar,
Burari, Delhi. .......Petitioner
(minor through his mother & natural
guardian Smt. Krishna.)
Versus
1. Sh. Dharmender Kumar,
S/o. Sh. Bhagmal Singh,
R/o. Village Jokhabad,
Post Bilbegumpur, Teh. Sikandrabad,
Distt. Bulandshahar, U.P. .......(Driver)
2. Sh. Om Prakash,
C/o. M/s. Kajaria Ckrmics,
Sikandrabad,
Distt. Bulandshahar, U.P.
3. Sh. Prem Singh Rohilla,
C/o. M/s. Kajaria Ckrmics,
Sikandarabad,
Distt. Bulandshahar, U.P. .......(Owner)
Suit No.13/11, 14/11, 15/11, 19/11, 27/11, 26/11, 17/11, 20/11 & 16/11 Page 1/46
4. National Insurance Co. Ltd.,
4th Floor, TowerII, Jeevan Bharti Building,
124, Connaught Place, New Delhi. ......(Insurer)
......... Respondents.
Date of Institution of the suit : 20.11.2008
Date on which order was reserved : 23.11.2011
Date of Decision : 23.11.2011
Suit No. 14/11
Unique ID No.02401C1466092008
Smt. Krishna,
W/o Late Sh. Virender Giri.
R/o. A83/C, Block B,
Shiv Kunj, Sant Nagar,
Burari, Delhi. .......Petitioner
Versus
1. Sh. Dharmender Kumar,
S/o. Sh. Bhagmal Singh,
R/o. Village Jokhabad,
Post Bilbegumpur, Teh. Sikandrabad,
Distt. Bulandshahar, U.P. .......(Driver)
2. Sh. Om Prakash,
C/o. M/s. Kajaria Ckrmics,
Sikandrabad,
Suit No.13/11, 14/11, 15/11, 19/11, 27/11, 26/11, 17/11, 20/11 & 16/11 Page 2/46
Distt. Bulandshahar, U.P.
3. Sh. Prem Singh Rohilla,
C/o. M/s. Kajaria Ckrmics,
Sikandarabad,
Distt. Bulandshahar, U.P. .......(Owner)
4. National Insurance Co. Ltd.,
4th Floor, TowerII, Jeevan Bharti Building,
124, Connaught Place, New Delhi. ......(Insurer)
......... Respondents.
Date of Institution of the suit : 20.11.2008
Date on which order was reserved : 23.11.2011
Date of Decision : 23.11.2011
Suit No. 15/11
Unique ID No.02401C1466082008
1. Smt.Krishna,
W/o Late Sh. Virender Giri. ......... (Wife)
2. Prashant, (11 years)
S/o. Late Sh. Virender Giri. ........ (Son)
3. Priyanka, (7 years)
D/o. Late Sh. Virender Giri. ........ (Daughter)
4. Himanshu, (6 years)
S/o. Late Sh. Virender Giri. ........ (Son)
All R/o.
Suit No.13/11, 14/11, 15/11, 19/11, 27/11, 26/11, 17/11, 20/11 & 16/11 Page 3/46
R/o. A83/C, Block B,
Shiv Kunj, Sant Nagar,
Burari, Delhi. .......Petitioners
(Petitione no. 2 to 4 are minor through
their mother and natural guardian
petitioner no. 1 Smt. Krishna)
Versus
1. Sh. Dharmender Kumar,
S/o. Sh. Bhagmal Singh,
R/o. Village Jokhabad,
Post Bilbegumpur, Teh. Sikandrabad,
Distt. Bulandshahar, U.P. .......(Driver)
2. Sh. Om Prakash,
C/o. M/s. Kajaria Ckrmics,
Sikandrabad,
Distt. Bulandshahar, U.P.
3. Sh. Prem Singh Rohilla,
C/o. M/s. Kajaria Ckrmics,
Sikandarabad,
Distt. Bulandshahar, U.P. .......(Owner)
4. National Insurance Co. Ltd.,
4th Floor, TowerII, Jeevan Bharti Building,
124, Connaught Place, New Delhi. ......(Insurer)
......... Respondents.
Date of Institution of the suit : 20.11.2008
Suit No.13/11, 14/11, 15/11, 19/11, 27/11, 26/11, 17/11, 20/11 & 16/11 Page 4/46
Date on which order was reserved : 23.11.2011
Date of Decision : 23.11.2011
Suit No. 19/11
Unique ID No.02401C1466112008
Prashant, (10 years)
S/o Late Sh. Virender Giri.
R/o. A83/C, Block B,
Shiv Kunj, Sant Nagar,
Burari, Delhi. .......Petitioner
(minor through his mother & natural
guardian Smt. Krishna.)
Versus
1. Sh. Dharmender Kumar,
S/o. Sh. Bhagmal Singh,
R/o. Village Jokhabad,
Post Bilbegumpur, Teh. Sikandrabad,
Distt. Bulandshahar, U.P. .......(Driver)
2. Sh. Om Prakash,
C/o. M/s. Kajaria Ckrmics,
Sikandrabad,
Distt. Bulandshahar, U.P.
3. Sh. Prem Singh Rohilla,
C/o. M/s. Kajaria Ckrmics,
Sikandarabad,
Suit No.13/11, 14/11, 15/11, 19/11, 27/11, 26/11, 17/11, 20/11 & 16/11 Page 5/46
Distt. Bulandshahar, U.P. .......(Owner)
4. National Insurance Co. Ltd.,
4th Floor, TowerII, Jeevan Bharti Building,
124, Connaught Place, New Delhi. ......(Insurer)
......... Respondents.
Date of Institution of the suit : 20.11.2008
Date on which order was reserved : 23.11.2011
Date of Decision : 23.11.2011
Suit No. 27/11
Unique ID No.02401C1466062008
Krishna
W/o Late Sh. Virender Giri.
R/o. A83/C, Block B,
Shiv Kunj, Sant Nagar,
Burari, Delhi. .......Petitioner
(Mother of the deceased)
Versus
1. Sh. Dharmender Kumar,
S/o. Sh. Bhagmal Singh,
R/o. Village Jokhabad,
Post Bilbegumpur, Teh. Sikandrabad,
Distt. Bulandshahar, U.P. .......(Driver)
2. Sh. Om Prakash,
Suit No.13/11, 14/11, 15/11, 19/11, 27/11, 26/11, 17/11, 20/11 & 16/11 Page 6/46
C/o. M/s. Kajaria Ckrmics,
Sikandrabad,
Distt. Bulandshahar, U.P.
3. Sh. Prem Singh Rohilla,
C/o. M/s. Kajaria Ckrmics,
Sikandarabad,
Distt. Bulandshahar, U.P. .......(Owner)
4. National Insurance Co. Ltd.,
4th Floor, TowerII, Jeevan Bharti Building,
124, Connaught Place, New Delhi. ......(Insurer)
......... Respondents.
Date of Institution of the suit : 20.11.2008
Date on which order was reserved : 23.11.2011
Date of Decision : 23.11.2011
Suit No. 26/11
Unique ID No.02401C0039192009
1.Sh. Ram Pal Giri, ......... (Father)
S/o. Late Sh. Kanchi Giri.
2.Smt. Mithlesh, .......... (Mother)
W/o. Sh. Ram Pal Giri.
Both R/o.
R/o. B19/813, Gali no. 83,
Shiv Kunj, Sant Nagar,
Suit No.13/11, 14/11, 15/11, 19/11, 27/11, 26/11, 17/11, 20/11 & 16/11 Page 7/46
Burari, Delhi. .......Petitioners
Versus
1.Sh. Dharmender Kumar,
S/o. Sh. Bhagmal Singh,
R/o. Village Jokhabad,
Post Bilbegumpur, Teh. Sikandrabad,
Distt. Bulandshahar, U.P. .......(Driver)
2. Sh. Om Prakash,
C/o. M/s. Kajaria Ckrmics,
Sikandrabad,
Distt. Bulandshahar, U.P.
3. Sh. Prem Singh Rohilla,
C/o. M/s. Kajaria Ckrmics,
Sikandarabad,
Distt. Bulandshahar, U.P. .......(Owner)
4. National Insurance Co. Ltd.,
4th Floor, TowerII, Jeevan Bharti Building,
124, Connaught Place, New Delhi. ......(Insurer)
......... Respondents.
Date of Institution of the suit : 12.1.2009
Date on which order was reserved : 23.11.2011
Date of Decision : 23.11.2011
Suit No. 17/11
Suit No.13/11, 14/11, 15/11, 19/11, 27/11, 26/11, 17/11, 20/11 & 16/11 Page 8/46
Unique ID No.02401C0039252009
Smt. Mithlesh, .......... (Petitioner)
W/o. Sh. Ram Pal Giri.
R/o. B19/813, Gali no. 83,
Shiv Kunj, Sant Nagar,
Burari, Delhi. .......Petitioner
Versus
2. Sh. Dharmender Kumar,
S/o. Sh. Bhagmal Singh,
R/o. Village Jokhabad,
Post Bilbegumpur, Teh. Sikandrabad,
Distt. Bulandshahar, U.P. .......(Driver)
2. Sh. Om Prakash,
C/o. M/s. Kajaria Ckrmics,
Sikandrabad,
Distt. Bulandshahar, U.P.
3. Sh. Prem Singh Rohilla,
C/o. M/s. Kajaria Ckrmics,
Sikandarabad,
Distt. Bulandshahar, U.P. .......(Owner)
4. National Insurance Co. Ltd.,
4th Floor, TowerII, Jeevan Bharti Building,
124, Connaught Place, New Delhi. ......(Insurer)
......... Respondents.
Date of Institution of the suit : 12.1.2009
Suit No.13/11, 14/11, 15/11, 19/11, 27/11, 26/11, 17/11, 20/11 & 16/11 Page 9/46
Date on which order was reserved : 23.11.2011
Date of Decision : 23.11.2011
Suit No. 20/11
Unique ID No.02401C0039232009
Siwang, (6 years)
S/o. Sh. Devinder Giri.
R/o. H. No.19/234, Gali no. 83,
Block B,
Shiv Kunj, Sant Nagar,
Burari, Delhi. .......Petitioner
(minor through his father & natural
guardian Sh. Devinder Giri.)
Versus
1.Sh. Dharmender Kumar,
S/o. Sh. Bhagmal Singh,
R/o. Village Jokhabad,
Post Bilbegumpur, Teh. Sikandrabad,
Distt. Bulandshahar, U.P. .......(Driver)
2. Sh. Om Prakash,
C/o. M/s. Kajaria Ckrmics,
Sikandrabad,
Distt. Bulandshahar, U.P.
3. Sh. Prem Singh Rohilla,
C/o. M/s. Kajaria Ckrmics,
Suit No.13/11, 14/11, 15/11, 19/11, 27/11, 26/11, 17/11, 20/11 & 16/11 Page 10/46
Sikandarabad,
Distt. Bulandshahar, U.P. .......(Owner)
4. National Insurance Co. Ltd.,
4th Floor, TowerII, Jeevan Bharti Building,
124, Connaught Place, New Delhi. ......(Insurer)
......... Respondents.
Date of Institution of the suit : 12.1.2009
Date on which order was reserved : 23.11.2011
Date of Decision : 23.11.2011
Suit No. 16/11
Unique ID No.02401C1466102008
Smt. Rani,
W/o. Sh. Devinder Giri.
R/o. H. No. 234, Gali no. 83 C ,
Shiv Kunj, Sant Nagar,
Burari, Delhi. .......Petitioner
Versus
1.Sh. Dharmender Kumar,
S/o. Sh. Bhagmal Singh,
R/o. Village Jokhabad,
Post Bilbegumpur, Teh. Sikandrabad,
Distt. Bulandshahar, U.P. .......(Driver)
2. Sh. Om Prakash,
Suit No.13/11, 14/11, 15/11, 19/11, 27/11, 26/11, 17/11, 20/11 & 16/11 Page 11/46
C/o. M/s. Kajaria Ckrmics,
Sikandrabad,
Distt. Bulandshahar, U.P.
3. Sh. Prem Singh Rohilla,
C/o. M/s. Kajaria Ckrmics,
Sikandarabad,
Distt. Bulandshahar, U.P. .......(Owner)
4. National Insurance Co. Ltd.,
4th Floor, TowerII, Jeevan Bharti Building,
124, Connaught Place, New Delhi. ......(Insurer)
......... Respondents.
Date of Institution of the suit : 20.11.2008
Date on which order was reserved : 23.11.2011
Date of Decision : 23.11.2011
JUDGMENT
1. Vide this judgment I shall dispose of nine claim petitions bearing no. 13/11, 14/11, 15/11, 19/11, 27/11, 26/11, 17/11, 20/11 and 16/11 as they have arisen out of the same accident registered vide FIR no. 795/08, Case no. 446/08 at Police Station Sikandrabad, U/s.279/304A IPC.
2. All the nine claim petitions bearing no. 13/11, 14/11, 15/11, 19/11, 27/11, 26/11, 17/11, 20/11 and 16/11 have been filed by the petitioners u/s.166 and 140 of Motor Vehicle Act.
3. Brief facts giving rise to the present claim petitions are that on 28.10.2008 at about 7:00 pm Sh. Virender Giri (deceased in Suit no. 15/11), Smt. Suit No.13/11, 14/11, 15/11, 19/11, 27/11, 26/11, 17/11, 20/11 & 16/11 Page 12/46 Krishna (injured in Suit no. 14/11 and petitioner no.1 in Suit no.15/11 and 27/11), Baby Rakhi (deceased in Suit no. 27/11) Master Himanshu (injured in Suit no. 13/11 and petitioner no. 4 in Suit no. 15/11), Master Prashant (injured in Suit no. 19/11 and petitioner no.2 in Suit no. 15/11), Ms. Rani ( injured in Suit no.16/11), Master Siwang (injured in Suit no.20/11), Smt. Mithlesh (injured in Suit no. 17/11) and Anshu (deceased in Suit no. 26/11) were going in Maruti Van bearing registration no. DDU7263 from Delhi to Hinnot. When they had reached near Kajaria Mor, Sikandrabad, in the meanwhile Canter bearing registration no. UP 13F7407 had come from the opposite direction driven in rash and negligent manner from wrong direction by respondent no. 1 and had hit their Maruti Van. As a result thereof Sh. Virender Giri, Baby Rakhi and baby Anshu had died and petitioners Smt. Krishna, Master Prashant, Ms. Rani, Ms. Mithlesh, Master Shivang and Master Himanshu had sustained injuries.
4. Written Statement was filed by ld.counsel for respondent no. 1,2 and 3 wherein it is stated that the petitioners have not come to the court with clean hands. It is denied that accident had taken place due to negligence of respondent no.1.
5. Written statement was filed by respondent no.4, The National Insurance Company Ltd., wherein it is stated that the present petition is not maintainable in the eyes of law. It is, however, admitted that vehicle bearing registration no. UP 13F7407 (TATA709) was insured with respondent no. 4, The National Insurance Company Ltd., in the name of Sh. Om Prakash and Sh. Prem Singh Rohilla i.e. respondent no. 2 and 3 vide policy no. 461702/31/07/6300004064 and the insurance policy was valid from 23.11.2007 to 22.11.2008.
6. All the nine claim petitions bearing no. 13/11, 14/11, 15/11, 19/11, 27/11, 26/11, 17/11, 20/11 and 16/11 (earlier Suit no. 594/08, 597/08, 599/08, 595/08, Suit No.13/11, 14/11, 15/11, 19/11, 27/11, 26/11, 17/11, 20/11 & 16/11 Page 13/46 596/08, 61/09, 58/09, 59/09 and 598/08 respectively) were ordered to be consolidated vide an order dated 14.10.2009 and Suit no.13/11 (earlier Suit no. 594/08) was ordered to be treated as main case and evidence was also ordered to be led in suit bearing no.13/11 (earlier Suit no. 594/08).
7. On the pleadings of the parties, following issues were settled in all the nine claim petitions:
(i). Whether the petitioners Himanshu, Prashant, Krishna, Rani, Mithlesh and Siwang in claim petitions bearing no. 594/08, 595/08, 597/08, 598/08, 58/09 and 59/09 (now Suit No. 13/11, 19/11, 14/11, 16/11, 17/11 and 20/11) had suffered grievous injuries in road traffic accident on 28.10.2008 due to rash and negligent driving of the vehicle bearing registration no. UP13F7407 by respondent no. 1?
(ii) Whether the deceased Rakhi, Virender Giri @ Pappu and Anshu in claim petitions bearing no. 596/08, 599/08 and 61/09 (now Suit no. 27/11, 15/11 and 26/11) had died due to the injuries sustained by them in an accident which took place on 28.10.08 because of rash and negligent driving of vehicle bearing registration no. UP13F7407 by respondent no. 1?
(iii) Whether the petitioners are entitled to any compensation, if so, to what amount and from whom?
(iv) Relief.
8. During the course of proceedings, respondents no.1, 2 and 3 were proceeded exparte vide order dated 27.7.2011.
9. Petitioners have examined three witnesses in support of their claim. Suit No.13/11, 14/11, 15/11, 19/11, 27/11, 26/11, 17/11, 20/11 & 16/11 Page 14/46
10. PW1 ( in Suit no. 13/11) Smt. Krishna, who is injured in Suit no. 14/11, wife of the deceased in Suit no.15/11 and mother of the deceased Rakhi in Suit no. 27/11 has tendered in evidence her examinationinchief by way of affidavit Ex.PW1/A wherein she stated that on 28.10.2008 at about 7:00 pm she alongwith her husband Sh. Virender Giri(deceased in Suit no. 15/11), Baby Rakhi (deceased in Suit no. 27/11) Master Himanshu (injured in Suit no. 13/11 and petitioner no. 4 in Suit no. 15/11), Master Prashant (injured in Suit no. 19/11 and petitioner no.2 in Suit no. 15/11), Ms. Rani ( injured in Suit no.16/11), Master Siwang (injured in Suit no.20/11), Smt. Mithlesh (injured in Suit no. 17/11) and Anshu (deceased in Suit no. 26/11) were going in Maruti Van bearing registration no. DDU7263 from Delhi to Hinnot. When they had reached near Kajaria Mor, Sikandrabad, in the meanwhile Canter bearing registration no. UP13F7407 had come from the opposite direction driven in rash and negligent manner from wrong direction by respondent no. 1 and had hit their Maruti Van. As a result thereof Sh. Virender Giri, Baby Rakhi and baby Anshu had died and she alongwith Master Prashant, Ms. Rani, Ms. Mithlesh, Master Shivang and Master Himanshu had sustained injuries.
She further stated that her husband Sh. Virender Giri was aged about 35 years. He was working as a carpenter and was earning Rs.8,000/ per month. She also stated that the deceased has left behind herself (wife), Master Prashant (son), Baby Priyanka (daughter) and Mastar Himanshu (son) as his only legal heirs.
She also stated that her daughter i.e. deceased Baby Rakhi was about 9 years old at the time of accident. She has left behind her mother i.e. Smt. Krishna as her only legal heir.
Suit No.13/11, 14/11, 15/11, 19/11, 27/11, 26/11, 17/11, 20/11 & 16/11 Page 15/46
She further stated that she had sustained fracture of both legs, chest injury, head injury, injuries on shoulder and other multiple injuries all over her body. Initially she was removed to Civil Hospital Bulandshahar and thereafter, she was shifted to Trauma Centre, Delhi. She had remained admitted in Trauma Centre, Delhi from 29.10.2008 and was discharged on 31.10.2008. Thereafter, she was referred to Babu Bansari Dass Hospital, Bulandshahar. She had remained under medical treatment for about one year. She stated that she has spent Rs.2,00,000/ on her medical treatment, co Bulandshahar nveyance and special diet. She cannot do household work after the accident and has engaged a servant for household work to whom she is paying Rs. 2,000/ per month.
She further stated that her son Himanshu was also injured in the said accident. He had sustained head injury, injury on his chest and other multiple injuries all over his body. He was admitted in Trauma Centre on 30.10.2008 and was discharged on 01.11.2008. She also stated that she has spent Rs.75,000/ on his treatment, conveyance and special diet.
She further stated that her son Prashant was also injured in the said accident. He had sustained head injury, injury on his chest and other multiple injuries all over his body. He was admitted in Trauma Centre on 30.10.2008 and was discharged on 01.11.2008. She also stated that she has spent Rs.75,000/ on his treatment, conveyance and special diet.
She also stated that she and her children will have to spend Rs.1,50,000/ as future medical expenses for the removal of the implants. She proved her Election Icard Ex.PW1/1, election Icard of the deceased Ex.PW1/2, certified copies of criminal case record Ex.PW1/3, her medical treatment record Ex.PW1/4, medical treatment record of Master Himanshu Ex.PW1/6 and medical treatment Suit No.13/11, 14/11, 15/11, 19/11, 27/11, 26/11, 17/11, 20/11 & 16/11 Page 16/46 record pertaining to Master Prashant Ex.PW1/7.
On being cross examined by Ld. Counsel for respondent no. 1, 2 & 3 she stated that 14 persons were travelling in the Maruti Van at the time of accident. They had checked the driving licence of their driver. She does not know as to whether it was valid at the time of accident. She admitted that the DTC Bus was ahead of their vehicle. She denied that the driver of their van could not control the vehicle since 14 persons were travelling in it and while trying to overtake the DTC bus the van had rammed into a stationary tanker. She also denied that the offending vehicle i.e. Canter was stationary at the time of accident. She was sitting on the passenger seat. She denied that the driver was driving the vehicle at high speed. She denied that the driver of their Van had no driving licence and that the accident had taken place due to rash and negligent driving of the driver of their vehicle.
On being cross examined by Ld. Counsel for respondent no. 4, Insurance Company she stated that apart from the bills filed by her on record, she does not have any other bills to substantiate her claim raised towards expenditure of Rs.2,00,000/ for her medical treatment, conveyance and special diet. She denied that she has deposed falsely regarding physical and financial losses suffered by her and her children due to the present accident. She denied that she has no bill regarding amount paid to the servant engaged for doing household work. She proved her ration card Ex.PW1/RA.
She also stated that she has no documentary proof regarding the occupation and income of her husband Sh. Virender Giri. She denied that she has deposed falsely regarding his age, occupation and income. She also denied that she has deposed falsely regarding her deceased husband being 10th Class pass or doing the job of carpenter.
Suit No.13/11, 14/11, 15/11, 19/11, 27/11, 26/11, 17/11, 20/11 & 16/11 Page 17/46
5. PW1 (in Suit no. 17/11) Smt. Mithlesh, who is injured in Suit no. 17/11 and mother of the deceased Anshu in Suit no. 26/11, tendered in evidence her examinationinchief by way of affidavit Ex.PW1/A wherein she stated similar facts as stated by PW1 Smt. Krishna in Suit no. 13/11. She also stated that her daughter Baby Anshu had died in the present accident. She was about 8 months old. She also stated that she and her husband are the only legal heirs of the deceased.
She further stated that she had sustained fracture of both the legs, fracture of the right hand and other multiple injuries all over her body. She was admitted in Civil Hospital, Bulandshahar and thereafter she had remained under medical treatment at some Private Hospital in Bulandshahar. She stated that she has spent Rs.30,000/ on her medical treatment, conveyance and special diet. She also stated that she has suffered permanent disability due to the injuries sustained in the accident. She cannot do her household work.
She proved her Election ICard Mark A, certified copy of the postmortem report of the deceased Baby Anshu Ex.PW1/1 and her MLC Mark C. On being cross examined by Ld. Counsel for respondent no. 1, 2 & 3 she stated that 14 persons were travelling in the Maruti Van at the time of accident. They had checked the driving licence of their driver. She does not know as to whether it was valid at the time of accident. She admitted that the DTC Bus was ahead of their vehicle. She denied that the driver of their van could not control the vehicle since 14 persons were travelling in it and while trying to overtake the DTC bus the van had rammed into a stationary tanker. She also denied that the offending vehicle i.e. Canter was stationary at the time of accident. She was sitting on the passenger seat. She denied that the driver was driving the vehicle at high speed. Suit No.13/11, 14/11, 15/11, 19/11, 27/11, 26/11, 17/11, 20/11 & 16/11 Page 18/46 She denied that the driver of their Van had no driving licence and the accident had taken place due to rash and negligent driving of the driver of their vehicle.
On being cross examined by Ld. Counsel for respondent no. 4, Insurance Company she stated that apart from the bills filed on record she does not have any bills to substantiate her claim towards medical expenditure of Rs.30,000/ for her medical treatment, conveyance and special diet. She denied that she has deposed falsely regarding physical and financial losses suffered by her due to the present accident. She stated that she has no birth certificate to prove the age of her daughter. She denied that her daughter Baby Anshu has not died as a result of the injury sustained in the accident as mentioned in her affidavit.
6. PW1 (in Suit no. 16/11) Smt. Rani, who is injured in Suit no. 16/11 and mother of the injured Master Siwang in Suit no. 20/11, tendered in evidence her examinationinchief by way of affidavit Ex.PW1/A wherein she stated similar facts as stated by PW1 Smt. Krishna in Suit no. 13/11. She also stated she had sustained fracture of humerus right with radial, fracture of pubic area and other multiple injuries all over her body. She was admitted in Civil Hospital, Bulandshahar and thereafter she was shifted to RML Hospital where she had remained admitted from 29.10.2008 to 03.11.2008. She had again remained admitted in North Delhi Nursing Home Pvt. Ltd. from 09.11.2008 to 16.11.2008 where she had undergone surgery and implants were used in her right hand. She also stated that she is still under medical treatment as an OPD patient.
She stated that at the time of accident she was doing work of stitching and knitting and was earning Rs.5,000/ per month. She could not continue her stitching and knitting work for about six months due to the injuries sustained in the accident. She stated that she had engaged a servant to whom she is paying Suit No.13/11, 14/11, 15/11, 19/11, 27/11, 26/11, 17/11, 20/11 & 16/11 Page 19/46 Rs.3,000/ per month. She has spent Rs.1,50,000/ on her medical treatment, Rs.20,000/ on conveyance and Rs.50,000/ on special diet. She stated that she has suffered permanent disability.
She stated that her son Master Siwang was 4 years of age at the time of accident and had sustained fracture of the right leg, fracture of the right hand and other multiple injuries all over the body. After the accident he was removed to Civil Hospital, Bulandshahar for his medical treatment. At the time of accident he was a student. He could not attend his school for about six months due to the injuries sustained in the accident. She stated that she has spent Rs.50,000/ on medical treatment, conveyance and special diet.
She proved discharge summary of RML Hospital Ex.PW1/1, original medical bills Ex.PW1/2 to Ex.PW1/14, copy of her Election ICard Mark B. On being cross examined by Ld. Counsel for respondent no. 1, 2 & 3 she stated that 14 persons were travelling in the Maruti Van at the time of accident. They had checked the driving licence of their driver. She does not know as to whether it was valid at the time of accident. She admitted that the DTC Bus was ahead of their vehicle. She denied that the driver of their van could not control the vehicle since 14 persons were travelling and while trying to overtake the DTC bus the van had rammed into a stationary tanker. She also denied that the offending vehicle i.e. Canter was stationary at the time of accident. She was sitting on the passenger seat. She denied that the driver was driving the vehicle at high speed. She denied that the driver of their Van had no driving licence and the accident had taken place due to rash and negligent driving of the driver of their vehicle.
On being cross examined by Ld. Counsel for respondent no. 4, Insurance Company she stated that apart from the bills filed on record she does not have any Suit No.13/11, 14/11, 15/11, 19/11, 27/11, 26/11, 17/11, 20/11 & 16/11 Page 20/46 bills to substantiate her claim towards medical expenditure of Rs.1,50,000/ for her medical treatment, Rs.20,000/ for conveyance and Rs.50,000/ special diet. She denied that she has deposed falsely regarding physical and financial losses suffered by her due to the present accident. She stated that she does not have any bill to prove the salary of Rs.3,000/ being paid to the servant for doing household work. She also stated that she does not have any documentary proof to show that she was doing the job of stitching and knitting and was earning Rs.5,000/ per month. She further stated that as regards the injured i.e. Master Siwang, she does not have any bills to substantiate the claim of Rs.50,000/ raised towards expenditure on medical treatment, conveyance and special diet.
She also stated that she has no documentary proof regarding the parentage of Master Siwang.
7. Thereafter, petitioner's evidence was closed.
8. Respondent no. 1 examined one witness to controvert the claim of the petitioners.
9. R1W1, Sh. Dharmender, who is driver of offending vehicle (recorded in Suit no. 13/11) has stated in his evidence that he is driver of the offending vehicle bearing registration no.UP13F7407 under the employment of Respondents no.2 & 3. He stated that on 28.10.2008 the alleged offending vehicle was parked on the extreme left side of the main road at Kaccha Patri at Kajaria More, Sikandarabad due to punctured tyre and some mechanical fault. He stated that while he was waiting for the Mechanic and the Cleaner of Truck was about to take off the punctured tyre to replace it, he had seen a Maruti Van, which was over loaded with 1415 passengers were coming from Delhi side and going towards Bulandshahar driven at high speed and was trying to overtake a DTC bus going Suit No.13/11, 14/11, 15/11, 19/11, 27/11, 26/11, 17/11, 20/11 & 16/11 Page 21/46 ahead of it. He stated that since the driver of Maruti van was driving the vehicle at high speed in rash and negligent manner, the driver of Maruti van was not able to overtake the DTC bus and had hit against his vehicle. He stated that the accident had taken place due to rash and negligent driving of driver of Maruti van as the van was overloaded with passengers more than its allowed capacity of passengers.
On being crossexamined by Sh.U.C.Rai, Ld.Counsel for petitioner he admitted that police had arrested him and had seized the vehicle. He denied the suggestion that his vehicle was not punctured at that time when it was seized by police. He denied the suggestion that he was driving the vehicle at high speed in rash and negligent manner and had hit the Maruti van head on. He stated that he has not lodged any complaint with the police regarding his false implication. He denied the suggestion that the accident had not taken place due to overloading and overtaking on the part of the driver of the Maruti van.
On being crossexamined by Sh.Vinod Kaul, Ld.Counsel for R4, Insurance Company he stated that on 28.10.2008 Sh.Prem Singh was the registered owner of the Truck.
10. Respondent no. 4, Insurance Company examined one witness to controvert the claim of the petitioners.
11. R4W1, Sh.Naipal Singh, (recorded in Suit no. 13/11) has proved the RC details of vehicle bearing registration no. DDU7263. He stated that the details of the record are in the form of Computer generated certificate issued by our Department and duly signed by MLO Sh.Jaspal Singh. He stated that carrying capacity of this vehicle in respect of passengers/occupant including the driver is four in total. He stated that as per the records the registered owner of Maruti Van was Sh.Raj Kumar. He has proved the original certificate as Ex.R4W1/A. Suit No.13/11, 14/11, 15/11, 19/11, 27/11, 26/11, 17/11, 20/11 & 16/11 Page 22/46 On being crossexamined by Sh.U.C.Rai, Ld.counsel for petitioner he stated that at present the new Maruti vans have a carrying capacity of eight passengers including driver.
12. Thereafter, respondent's evidence was closed.
13. Final arguments were heard on behalf of Ld. Counsel for petitioners as well as for Ld. Counsel for Insurance Company. After hearing arguments and having gone through the record, I record my findings on issues settled as follows:
14.ISSUE NO.1 IN ALL THE NINE CLAIM PETITIONS:
Whether the petitioners Himanshu, Prashant, Krishna, Rani, Mithlesh and Siwang in claim petitions bearing no. 594/08, 595/08, 597/08, 598/08, 58/09 and 59/09 (now Suit No. 13/11, 19/11, 14/11, 16/11, 17/11 and 20/11) had suffered grievous injuries in road traffic accident on 28.10.2008 due to rash and negligent driving of the vehicle bearing registration no. UP13F7407 by respondent no. 1?
AND ISSUE NO.2 IN ALL THE NINE CLAIM PETITIONS:
11.
Whether the deceased Rakhi, Virender Giri @ Pappu and Anshu in claim petitions bearing no. 596/08, 599/08 and 61/09 (now Suit no. 27/11, 15/11 and 26/11) had died due to the injuries sustained by them in an accident which took place on 28.10.08 because of rash and negligent driving of vehicle bearing registration no. UP13F7407 by respondent no. 1?
The petitioners have filed on record certified copy of FIR as well as certified copy of the challan Ex.PW1/3. Police investigation has concluded that the accident in this case has taken place due to rash and negligent driving of vehicle Suit No.13/11, 14/11, 15/11, 19/11, 27/11, 26/11, 17/11, 20/11 & 16/11 Page 23/46 bearing registration no. UP13F7407 by respondent no.1 who is accused in the criminal case filed by the police.
The postmortem report of deceased Sh. Virender Giri and Baby Anshu and medical treatment record of the petitioners of the injured persons i.e. Himanshu, Prashant, Krishna, Rani and Mithlesh ( except Master Siwang since no medical treatment record qua him has been filed) on the other hand, also reflects that the injuries are of the nature which could have been caused due to injuries sustained in road traffic accident.
Therefore, the testimony of PWs considered alongwith the other documents i.e. challan as well as FIR registered in this case, postmortem report and MLCs I am of the opinion that deceased Baby Rakhi, Sh. Virender Giri and Baby Anshu had died because of injuries sustained by them and Himanshu, Prashant, Krishna, Rani and Mithlesh had sustained injuries in an accident which took place on 28.10.2008 because of rash and negligent driving of vehicle bearing registration no. UP13F7407.
It is, therefore, prima facie clear that the accident in this case had taken place with the offending vehicle driven by respondent no.1 due to his rash and negligent driving causing death of the deceased and injuries to the injured persons.
Hence, issue no.1 is decided against the respondents. ISSUE NO.3 IN ALL THE NINE CLAIM PETITIONS:
15. Whether the petitioners are entitled to any compensation, if so, to what amount and from whom?
Since, issue no.1 has been decided in favour of the petitioners that the deceased had died and the injured persons had sustained injuries in the accident with the offending vehicle, petitioners are entitled to compensation under the Motor Suit No.13/11, 14/11, 15/11, 19/11, 27/11, 26/11, 17/11, 20/11 & 16/11 Page 24/46 Vehicle Act.
CONTRIBUTORY NEGLIGENCE:
16. Counsel for the Insurance Company has lead evidence and it is admitted fact that at the time of accident about 14 people were travelling in the Maruti Van which has passenger sitting capacity of only four persons. However, it is also admitted that out of the 14 passengers, 7 were the children between the age group of 8 months to 11 years. Therefore, in my opinion, the seven children who were travelling in the Maruti Van cannot be considered to be adult passengers in the Maruti Van.
Even otherwise there is no evidence on record that the driver of the Maruti Van had been negligent while driving the said van or had lost control over the vehicle being overloaded. I am, therefore, not inclined to deduct any amount towards contributory negligence on the part of the driver of the Maruti Van.
17. Coming to the compensation in claim petition bearing no. 13/11 wherein Master Himanshu has sustained injuries: MEDICINES AND MEDICAL TREATMENT.
18. As per the discharge summary of Sushruta Trauma Centre Ex.PW1/6 he was admitted in the hospital on 30.10.2008 and was discharged on 01.11.2008. He was advised medicines but no serious injuries have been mentioned in the medical treatment record. No further medical treatment record has been filed by the petitioner. He had suffered simple injuries. Medical bills in the sum of Rs.1,590/ have been filed on behalf of the petitioner. Therefore, I am inclined to grant Rs. 1,590/ (round figure Rs.1,600/) to the petitioner for expenditure towards Suit No.13/11, 14/11, 15/11, 19/11, 27/11, 26/11, 17/11, 20/11 & 16/11 Page 25/46 medicines and medical treatment.
LOSS OF ACADEMICS.
19. Since the petitioner had remained admitted in hospital from 30.10.2008 to 01.11.2008 and had sustained injuries in the present accident, he must not have been able to attend his school for about one week. Therefore, I am inclined to grant Rs.2,000/ under this head.
PAIN AND SUFFERING.
20. Considering the nature of injuries sustained by the petitioner Master Himanshu, I grant him a sum of Rs.2,000/ towards pain and suffering. CONVEYANCE.
21. Considering the medical treatment and the nature of injuries suffered by the petitioner, I award a sum of Rs.1,000/ as compensation towards conveyance. SPECIAL DIET.
22. I award a sum of Rs.1,000/ towards special diet to the petitioner.
23. In view of my finding on issue no.1 and 2, the petitioner Master Himanshu is awarded following compensation: Medicines and medical treatment Rs.1,600/ Loss of academics Rs.2,000/ Pain and Suffering Rs.2,000/ Conveyance Rs.1,000/ Special Diet Rs.1,000/ Total Rs.7,600/
24. Therefore, petitioner Master Himanshu is entitled to compensation of Rs.7,600/. Petitioner is also entitled to interest at the rate of 7.5% per annum from Suit No.13/11, 14/11, 15/11, 19/11, 27/11, 26/11, 17/11, 20/11 & 16/11 Page 26/46 the date of filing of petition i.e. 20.11.2008 till its realization.
The said amount be deposited in FDR with any nationalized bank till he attains the age of majority without the facility of advance/loan or withdrawal. However, petitioner Master Himanshu will be entitled to monthly or quarterly interest as applicable.
25. Coming to the compensation in claim petition bearing no. 14/11 wherein Smt. Krishna has sustained injuries: MEDICINES AND MEDICAL TREATMENT.
26. As per the discharge summary of Smt. Krishna of Sushruta Trauma Centre Ex.PW1/4 she was admitted in the hospital on 30.10.2008 and was discharged on 01.11.2008. Medical treatment record of Ish Medical Centre And A+ Diagnostics Ex.PW1/4 shows that she had remained admitted in the hospital from 03.11.2008 to 05.11.2008. She had undergone surgery.
As per medical treatment record dated 31.3.2009 of Ish Medical Centre, the petitioner had remained under treatment for vaginal infection which has no connection with the injuries sustained in the accident. Another treatment record of Hindu Rao Hospital has been filed by the petitioner. However, that pertains to the year 2003 whereas the accident has taken place in the year 2008 and has nothing to do with the injuries sustained in the accident.
She has filed medical bills in the sum of Rs.3,420/. Therefore, I am inclined to grant Rs.3,420/ (round figure Rs.3,500/) to the petitioner for expenditure towards medicines and medical treatment. LOSS OF WAGES.
27. Since the petitioner had remained admitted in hospital from 30.10.2008 to 01.11.2008 and had sustained injuries in the present accident, she must not have Suit No.13/11, 14/11, 15/11, 19/11, 27/11, 26/11, 17/11, 20/11 & 16/11 Page 27/46 been able to attend to her household work for about 15 days. Therefore, I am inclined to grant the petitioner loss of wages for 15 days.
PW1 Smt. Krishna i.e. the petitioner herself has stated in her testimony that she was a housewife at the time of accident. Therefore, I am inclined her as housewife for computation of loss of financial dependency.
Since the deceased was a house wife, there is no actual income of house wife. As per Lata Wadhwa's case, 2001 ACJ 1735 (SC) which has been discussed at length in the recent judgment of Vijay Chadha and others Vs. Jasbir Singh, 2007 ACJ 1238 decided by our own High Court of Delhi it is clear that in the case of house wife taking into consideration the multifarious services rendered by the housewives for managing the entire family, even on a modest estimation should Rs.3,000/ per month. This would apply to all those housewives between the age group of 34 and 59 and as such who were active in life.
Petitioner has also stated that she was 28 years of age at the time of accident. As per her Election ICard Ex.PW1/1 her age has been mentioned as 28 years as on 1.1.2008 which means that she was about 28 years of age as on the date of accident i.e. 28.10.2008. Therefore, I am inclined to take the age of the petitioner to be 28 years.
Since no income of housewife of 28 years of age has been mentioned in the aforesaid judgment, I am inclined to take monthly contribution of the petitioner towards her family would have been Rs.3,500/.
Therefore, loss of wages for 15 days will be Rs.3,500/ X 15/30 which comes to Rs.1,750/ (round figure Rs.2,000/) PAIN AND SUFFERING.
28. Considering the nature of injuries sustained by the petitioner Smt. Suit No.13/11, 14/11, 15/11, 19/11, 27/11, 26/11, 17/11, 20/11 & 16/11 Page 28/46 Krishna, I grant him a sum of Rs.5,000/ towards pain and suffering. CONVEYANCE.
29. Considering the medical treatment and the nature of injuries suffered by the petitioner, I award a sum of Rs.2,000/ as compensation towards conveyance. SPECIAL DIET.
30. I award a sum of Rs.2,000/ towards special diet to the petitioner.
31. In view of my finding on issue no.1 and 2, the petitioner Smt. Krishna is awarded following compensation: Medicines and medical treatment Rs.3,500/ Loss of wages Rs.2,000/ Pain and Suffering Rs.5,000/ Conveyance Rs.2,000/ Special Diet Rs.2,000/ Total Rs. 14,500/
32. Therefore, petitioner Smt. Krishna is entitled to compensation of Rs.14,500/. Petitioner is also entitled to interest at the rate of 7.5% per annum from the date of filing of petition i.e. 20.11.2008 till its realization.
33. The said amount be released in cash to the petitioner Smt. Krishna.
34. Coming to the compensation in claim petition bearing no. 15/11 wherein Sh. Virender Giri had died : LOSS OF FINANCIAL DEPENDENCY.
35. PW1 Smt. Krishna has stated in her testimony that the deceased Sh. Virender Giri was 10th class pass and was working as carpenter. He used to earn Rs.8,000/ per month. However, no document qua employment, income or Suit No.13/11, 14/11, 15/11, 19/11, 27/11, 26/11, 17/11, 20/11 & 16/11 Page 29/46 educational qualification of the deceased has been filed by the petitioners. Therefore, I am inclined to take minimum wages of unskilled labourer to assess financial dependency.
On the date of accident i.e. 28.10.2008, the minimum wages of unskilled labourer were Rs.3,683/ per month.
It is settled in the case of Kanwar Devi Vs.Bansal Roadways, 2008 ACJ 2182, National Insurance Company Limited vs. Renu Devi III (2008) ACC 134 and UPSRTC vs. Munni Devi, MAC. APP.No.310/2007 decided on 28/07/2008 that the Court should take judicial notice of increase in minimum wages to meet the increase in price index and inflation rate. The Court has taken the view that the minimum wages get doubled over the period of 10 years and increase in minimum wages is not akin to future prospects and the income should be computed by taking the average of minimum wages and its double.
Following the aforesaid judgment, the monthly income of the deceased will be Rs.3,683/ plus Rs.7,366/ divided by 1/2 which comes to Rs.5,524.50/ (round figure Rs.5,530/).
As per the Election I Card of the deceased Ex. PW1/2 his age has been mentioned as 35 years as on 01.1.2008 which means that the deceased was about 35 years as on the date of accident i.e. 28.10.2008. Therefore, I am inclined to take the age of the deceased to be 35 years as on the date of accident. Hence multiplier of 16 as per the Judgment of Smt. Sarla Verma Vs. Delhi Transport Corporation, CA 3483 of 2008, SC is to be applied.
As per Sarla Verma's Judgement, 1/4th is to be deducted towards personal expenses where the number of dependent family members are from 4 to 6. Therefore, 1/4th amount is to be deducted towards personal expenses in the present Suit No.13/11, 14/11, 15/11, 19/11, 27/11, 26/11, 17/11, 20/11 & 16/11 Page 30/46 case.
Therefore, total loss of financial dependency accordingly will be Rs.5,530/ x 12 x 16 x 3/4 which comes to Rs.7,96,320/ (round figure Rs.7,97,000/).
36. LOSS OF LOVE AND AFFECTION.
Petitioner no. 1 has lost her husband, petitioner no. 2 to 4 have lost their father in the present accident. Money cannot compensate the loss of love and affection that they have lost due to the accident. No amount of money can wipe the tears, the trauma of the petitioners and the feeling that the petitioners must be feeling each day having lost their husband/ father. The Trauma is for the lifetime. I, however, grant a sum of Rs.10,000/ to the petitioners for loss of love and affection.
LOSS OF CONSORTIUM.
37. Since the petitioner no. 1 Smt. Krishna has lost her husband, no amount of money can compensate this loss to her. However, I am inclined to grant a sum of Rs.10,000/ towards loss of consortium.
FUNERAL EXPENSES.
38. I award Rs.5,000/ on account of funeral expenses to the petitioners. LOSS TO ESTATE.
39. I award Rs.10,000/ on account of loss to estate to petitioners. RELIEF.
40. In view of my finding on issue no.1 and 2, the petitioners are awarded following compensation: Loss of financial dependency Rs.7,97,000/ Loss of love and affection Rs.10,000/ Suit No.13/11, 14/11, 15/11, 19/11, 27/11, 26/11, 17/11, 20/11 & 16/11 Page 31/46 Loss of consortium Rs.10,000/ Funeral Expenses Rs.5,000/ Loss to Estate Rs.10,000/ Total Rs.8,32,000/
41. Therefore the petitioners are entitled to compensation of Rs.8,32,000/. Petitioners are also entitled to interest at the rate of 7.5% per annum from the date of filing of petition i.e. 20.11.2008 till its realization.
Out of the said compensation, petitioner no.1/Smt. Krishna being wife of the deceased is entitled to a sum of Rs.3,82,000/ with 7.5% interest as stated above. Out of this amount, a sum of Rs.82,000/ be given in cash to the petitioner no. 1/Smt. Krishna and out of the remaining amount of Rs.3,00,000/, Rs.1,00,000/ be kept in the form of FDR for one year, Rs.1,00,000/ be kept in the form of two years and Rs.1,00,000/ be kept in the form of FDR for three years with any nationalized bank without the facility of advance/loan or withdrawal. However, petitioner no.1/ Smt. Krishna will be entitled to monthly or quarterly interest as applicable.
Petitioner no. 2/ Master Prashant, petitioner no.3/ baby Priyanka and petitioner no. 4/ Master Himanshu being children of the deceased are entitled to a sum of Rs.1,50,000/ each with 7.5% interest as stated above. The said amount be kept in FDRs with any nationalized bank till they attain the age of majority without the facility of advance/loan or withdrawal. However, petitioners no.2, 3 and 4 will be entitled to monthly or quarterly interest as applicable.
42. Coming to the compensation in claim petition bearing no. 19/11 wherein Master Prashant has sustained injuries: Suit No.13/11, 14/11, 15/11, 19/11, 27/11, 26/11, 17/11, 20/11 & 16/11 Page 32/46 MEDICINES AND MEDICAL TREATMENT.
43. As per the discharge summary of Sushruta Trauma Centre Ex.PW1/7 he was discharged from the hospital on the same date. No serious injuries have been mentioned in the medical treatment record. No further medical treatment record has been filed by the petitioner. He had suffered simple injuries. No medical bills have been filed by the petitioner. However, considering the nature of injuries sustained by the petitioner, I am inclined to grant Rs. 1,000/ as token amount to the petitioner for expenditure towards medicines and medical treatment. LOSS OF ACADEMICS.
44. Since the petitioner had sustained simple injuries in the present accident, he must not have been able to attend his school for about 34 days. Therefore, I am inclined to grant Rs.1,000/ under this head.
PAIN AND SUFFERING.
45. Considering the nature of injuries sustained by the petitioner Master Prashant, I grant him a sum of Rs.2,000/ towards pain and suffering. CONVEYANCE.
46. Considering the medical treatment and the nature of injuries suffered by the petitioner, I award a sum of Rs.1,000/ as compensation towards conveyance. SPECIAL DIET.
47. I award a sum of Rs.1,000/ towards special diet to the petitioner.
48. In view of my finding on issue no.1 and 2, the petitioner Master Prashant is awarded following compensation: Medicines and medical treatment Rs.1,000/ Loss of academics Rs.1,000/ Pain and Suffering Rs.2,000/ Suit No.13/11, 14/11, 15/11, 19/11, 27/11, 26/11, 17/11, 20/11 & 16/11 Page 33/46 Conveyance Rs.1,000/ Special Diet Rs.1,000/ Total Rs.6,000/
49. Therefore, petitioner Master Prashant is entitled to compensation of Rs.6,000/. Petitioner is also entitled to interest at the rate of 7.5% per annum from the date of filing of petition i.e. 20.11.2008 till its realization.
The said amount be deposited in FDR with any nationalized bank till he attains the age of majority without the facility of advance/loan or withdrawal. However, petitioner Master Prashant will be entitled to monthly or quarterly interest as applicable.
50. Coming to the compensation in claim petition bearing no. 27/11 wherein Baby Rakhi has sustained fatal injuries: LOSS OF DEPENDENCY.
51. As per the petition the deceased Rakhi was 9 years of age at the time of accident. As per ration card filed by the petitioners also, her age was 9 years at the time of accident.
In New India Assurance Co Limited vs Satender and ors reported as JT 2006(10) SC 234 in this case it was held by Hon'ble Supreme Court that :
"In cases of young children of tender age, in view of uncertainties abound, neither their income at the time of death nor the prospects of the future increase in their income nor chances of advancement of their career are capable of proper determination on estimated Suit No.13/11, 14/11, 15/11, 19/11, 27/11, 26/11, 17/11, 20/11 & 16/11 Page 34/46 basis. The reason is that at such an early age, the uncertainties in regard to their academic pursuits, achievement in career and thereafter advancement in life are so many that nothing can be assumed with reasonable certainty. Therefore neither the income of the deceased child is capable of assessment on estimated basis nor the financial loss suffered by the parents is capable of mathematical computation."
In case of Shyam Narayan vs Kitty Tours Travels and ors reported as IV (2005) ACC 1 delivered by Hon'ble Mr Justice Pradeep Nandrajog of Hon'ble High Court of Delhi has held that in case of death minor child of age of 15 years as per second schedule appended to Section 163 (A) of Motor Vehicle Act 1988 notional income should be taken of Rs15,000/ per annum to which multiplier of 15 is to be taken as provided in second schedule appended to Section 163 A of Motor Vehicle Act therefore compensation comes out to be Rs2.25 lakhs. On this Hon'ble High Court has awarded Rs50,000/ on account of the loss of company of child and for pain and suffering , therefore total amount of Rs2.75 lakh was awarded by Hon'ble High Court of Delhi.
After considering judgment as mentioned above I am of the opinion that when specifically notional income has been provided in second schedule appended to Section 163 A of Motor Vehicle Act. The notional income of deceased is in the present case as of 10 years has to be taken as Rs15,000/ per annum and in second Suit No.13/11, 14/11, 15/11, 19/11, 27/11, 26/11, 17/11, 20/11 & 16/11 Page 35/46 schedule itself multiplier of 15 has been provided for the age of deceased being 05 years therefore total loss of dependency will be Rs2.25 lakhs as provided in the judgment of Hon'ble High Court of Delhi.
It has been further held in the recent Judgment of Rekha Vs. Raj Balam Rajbhar & Ors, MAC.App.No.576/2007 decided on 9/12/2009 wherein above Judgments were discussed and it has been held by the Hon'ble High Court that in the Judgement of R.K.Malik Vs. Kiran Pal, 2009 (8) Scale 451 that the claimants are also entitled to compensation of Rs.75,000/ towards future prospects.
Therefore, in the case of Rekha Vs. Raj Balam Rajbhar & Ors, MAC.App.No.576/2007 decided on 9/12/2009, wherein the deceased was 8 years old, Rs.2,25,000/ was awarded towards pecuniary damages following the Second Schedule o the Motor Vehicles Act, Rs.75,000/ was awarded towards non pecuniary damages and Rs.75,000/ was awarded towards future prospects which means that the total compensation was awarded as Rs.3,75,000/.
In view thereof, I am inclined to award a sum of Rs.3,75,000/ to petitioners since the deceased was 9 years of age at the time of accident.
52. Therefore the petitioner Smt. Krishna being mother of the deceased is entitled to compensation of Rs.3,75,000/. Petitioner is also entitled to interest at the rate of 7.5% per annum from the date of filing of petition i.e. 20.11.2008 till its realization.
53. Out of the said compensation amount, Rs.75,000/ be released to the petitioner Smt. Krishna in cash and out of the remaining amount of Rs.3,00,000/, Rs.1,00,000/ be kept in the form of FDR for the period of one year, Rs.1,00,000/ be kept in the form of FDR for the period of two years and Rs.1,00,000/ be kept in the form of FDR for the period of three years with any nationalized bank without Suit No.13/11, 14/11, 15/11, 19/11, 27/11, 26/11, 17/11, 20/11 & 16/11 Page 36/46 the facility of advance/loan or withdrawal. However, the petitioner will be entitled to monthly or quarterly interest as applicable.
54. Coming to the compensation in claim petition bearing no. 26/11 wherein Baby Anshu has died:
55. LOSS OF DEPENDENCY.
As per the petition the deceased Anshu was 8 months old at the time of accident. As per Postmortem Report also her age has been mentioned to be 8 months at the time of accident.
In New India Assurance Co Limited vs Satender and ors reported as JT 2006(10) SC 234 in this case it was held by Hon'ble Supreme Court that :
"In cases of young children of tender age, in view of uncertainties abound, neither their income at the time of death nor the prospects of the future increase in their income nor chances of advancement of their career are capable of proper determination on estimated basis. The reason is that at such an early age, the uncertainties in regard to their academic pursuits, achievement in career and thereafter advancement in life are so many that nothing can be assumed with reasonable certainty. Therefore neither the income of the deceased child is capable of assessment on estimated basis nor the financial loss suffered by the Suit No.13/11, 14/11, 15/11, 19/11, 27/11, 26/11, 17/11, 20/11 & 16/11 Page 37/46 parents is capable of mathematical computation."
In case of Shyam Narayan vs Kitty Tours Travels and ors reported as IV (2005) ACC 1 delivered by Hon'ble Mr Justice Pradeep Nandrajog of Hon'ble High Court of Delhi has held that in case of death minor child of age of 15 years as per second schedule appended to Section 163 (A) of Motor Vehicle Act 1988 notional income should be taken of Rs15,000/ per annum to which multiplier of 15 is to be taken as provided in second schedule appended to Section 163 A of Motor Vehicle Act therefore compensation comes out to be Rs2.25 lakhs. On this Hon'ble High Court has awarded Rs50,000/ on account of the loss of company of child and for pain and suffering , therefore total amount of Rs2.75 lakh was awarded by Hon'ble High Court of Delhi.
After considering judgment as mentioned above I am of the opinion that when specifically notional income has been provided in second schedule appended to Section 163 A of Motor Vehicle Act. The notional income of deceased is in the present case as of 10 years has to be taken as Rs15,000/ per annum and in second schedule itself multiplier of 15 has been provided for the age of deceased being 05 years therefore total loss of dependency will be Rs. 2.25 lakhs as provided in the judgment of Hon'ble High Court of Delhi.
It has been further held in the recent Judgment of Rekha Vs. Raj Balam Rajbhar & Ors, MAC.App.No.576/2007 decided on 9/12/2009 wherein above Judgments were discussed and it has been held by the Hon'ble High Court that in the Judgement of R.K.Malik Vs. Kiran Pal, 2009 (8) Scale 451 that the claimants are also entitled to compensation of Rs.75,000/ towards future prospects.
Therefore, in the case of Rekha Vs. Raj Balam Rajbhar & Ors, Suit No.13/11, 14/11, 15/11, 19/11, 27/11, 26/11, 17/11, 20/11 & 16/11 Page 38/46 MAC.App.No.576/2007 decided on 9/12/2009, wherein the deceased was 8 years old, Rs.2,25,000/ was awarded towards pecuniary damages following the Second Schedule o the Motor Vehicles Act, Rs.75,000/ was awarded towards non pecuniary damages and Rs.75,000/ was awarded towards future prospects which means that the total compensation was awarded as Rs.3,75,000/.
In view thereof, I am inclined to award a sum of Rs.3,75,000/ to petitioners since the deceased was 8 months old at the time of accident.
56. Therefore the petitioners are entitled to compensation of Rs.3,75,000/. Petitioner is also entitled to interest at the rate of 7.5% per annum from the date of filing of petition i.e. 12.1.2009 till its realization.
57. Out of the said compensation amount, petitioner no. 1/ Sh. Ram Phal Giri and petitioner no. 2/ Smt. Mithlesh are entitled to get Rs.1,87,500/ each. Out of the said amount Rs.87,500/ each be released in cash to the petitioner no. 1 and 2 and the remaining amount of Rs.1,00,000/ each be kept in the form of FDRs for the period of one year with any nationalized bank without the facility of advance/loan or withdrawal. However, the petitioners will be entitled to monthly or quarterly interest as applicable.
58. Coming to the compensation in claim petition bearing no. 17/11 wherein Smt. Mithlesh has sustained injuries:
59. MEDICINES AND MEDICAL TREATMENT.
As per the medical treatment record of Smt. Mithlesh Ex.PW1/2 she had sustained simple injuries and was discharged from the hospital on the same day. She was advised medicines but no serious injuries have been mentioned in the medical treatment record.
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No medical bills have been filed on behalf of the petitioner towards expenses incurred on medicines and medical treatment. However, considering the nature of injuries sustained by the petitioner, I am inclined to grant Rs.1,000/ to the petitioner for expenditure towards medicines and medical treatment. LOSS OF WAGES.
60. The petitioner had suffered simple injuries and was discharged from the hospital on the same day. However, she must not have been able to attend to her household work for about one week. Therefore, I am inclined to grant the petitioner loss of wages for one week.
PW1 Smt. Mithlesh i.e. the petitioner herself has stated in her testimony that she was a housewife at the time of accident. Therefore, I am inclined her as housewife for computation of loss of financial dependency.
Since the deceased was a house wife, there is no actual income of house wife. As per Lata Wadhwa's case, 2001 ACJ 1735 (SC) which has been discussed at length in the recent judgment of Vijay Chadha and others Vs. Jasbir Singh, 2007 ACJ 1238 decided by our own High Court of Delhi it is clear that in the case of house wife taking into consideration the multifarious services rendered by the housewives for managing the entire family, even on a modest estimation should Rs.3,000/ per month. This would apply to all those housewives between the age group of 34 and 59 and as such who were active in life.
Petitioner has also stated that she was 22 years of age at the time of accident. As per her Election ICard Mark A her age has been mentioned as 22 years as on 1.1.2008 which means that she was about 22 years of age as on the date of accident i.e. 28.10.2008. Therefore, I am inclined to take the age of the petitioner to be 22 years.
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Since no income of housewife of 22 years of age has been mentioned in the aforesaid judgment, I am inclined to take monthly contribution of the petitioner towards her family would have been Rs.4,000/.
Therefore, loss of wages for one will be Rs.4,000/ X 7/30 which comes to Rs.933.33/ (round figure Rs.1,000/) PAIN AND SUFFERING.
61. Considering the nature of injuries sustained by the petitioner Smt. Mithlesh, I grant hem a sum of Rs.2,000/ towards pain and suffering. CONVEYANCE.
62. Considering the medical treatment and the nature of injuries suffered by the petitioner, I award a sum of Rs.1,000/ as compensation towards conveyance. SPECIAL DIET.
63. I award a sum of Rs.1,000/ towards special diet to the petitioner.
64. In view of my finding on issue no.1 and 2, the petitioner Smt. Mithlesh is awarded following compensation: Medicines and medical treatment Rs.1,000/ Loss of wages Rs.1,000/ Pain and Suffering Rs.2,000/ Conveyance Rs.1,000/ Special Diet Rs.1,000/ Total Rs.6,000/
65. Therefore, petitioner Smt. Mithlesh is entitled to compensation of Rs.6,000/. Petitioner is also entitled to interest at the rate of 7.5% per annum from the date of filing of petition i.e. 12.1.2009 till its realization.
The said amount be released in cash to the petitioner Smt. Mithlesh. Suit No.13/11, 14/11, 15/11, 19/11, 27/11, 26/11, 17/11, 20/11 & 16/11 Page 41/46
66. Coming to the compensation in claim petition bearing no. 20/11 wherein Master Siwang has sustained injuries: Neither any MLC or medical treatment record nor any medical bills have been filed on record on behalf of the petitioner Master Siwang, therefore, it could not be proved that he had sustained any injury in this case. Therefore, this claim petition stands dismissed.
67. Coming to the compensation in claim petition bearing no. 16/11 wherein Smt. Rani has sustained injuries :
68. MEDICINES AND MEDICAL TREATMENT.
As per the discharge summary of Smt. Rani of RML Hospital, Ex.PW1/1 (in Suit no. 16/11), she was admitted in the hospital on 29.10.2008 and was discharged on 03.11.2008. She had suffered multiple fracture of the left side of the pubic area and multiple fracture of the right arm. POP cast was imposed on the right arm and skeleton traction was given for the pubic region. She was advised complete bed rest for six weeks and non weight bearing for six weeks. She was advised daily dressing of the wound of the head ad she was also advised medicines for six weeks.
Further medical treatment record of North Delhi Nursing Home Private Ltd. dated 27.11.2009 shows that she had remained an OPD patient of the North Delhi Nursing Home . The treatment record does not inspire any confidence since it is only mentioned in the record that the petitioner Smt. Rani has pain in the back and had an accident one year back. She has been advised medicines. Therefore, it is not clear that it was the treatment pertaining to the injuries sustained in the Suit No.13/11, 14/11, 15/11, 19/11, 27/11, 26/11, 17/11, 20/11 & 16/11 Page 42/46 accident. Xray report dated 27.12.2010 has also been filed by the petitioner which shows that it pertains to an old healed fracture which again does not pertain to the present accident.
She had remained admitted in hospital from 09.11.2008 to 15.11.2008 where she had under gone surgery and implants were used to unite the fracture.
She has filed medical bills in the sum of Rs.40,698/ (round figure Rs.41,000/). Therefore, I am inclined to grant Rs.41,000/ to the petitioner for expenditure towards medicines and medical treatment. LOSS OF WAGES.
69. Since the petitioner had remained admitted in hospital from 30.10.2008 to 03.11.2008 and had sustained injuries in the present accident, she must not have been able to attend to her household work for about two months. Therefore, I am inclined to grant the petitioner loss of wages for two months.
Petitioner Smt. Rani has stated in her testimony that she was doing the work of stitching and knitting at the time of accident and was earning Rs.5,000/ per month. However, no proof of income or employment has been filed on record. Therefore, I am inclined inclined to grant her as housewife for computation of loss of financial dependency.
Since the deceased was a house wife, there is no actual income of house wife. As per Lata Wadhwa's case, 2001 ACJ 1735 (SC) which has been discussed at length in the recent judgment of Vijay Chadha and others Vs. Jasbir Singh, 2007 ACJ 1238 decided by our own High Court of Delhi it is clear that in the case of house wife taking into consideration the multifarious services rendered by the housewives for managing the entire family, even on a modest estimation should Rs.3,000/ per month. This would apply to all those housewives Suit No.13/11, 14/11, 15/11, 19/11, 27/11, 26/11, 17/11, 20/11 & 16/11 Page 43/46 between the age group of 34 and 59 and as such who were active in life.
Petitioner has also stated that she was 28 years of age at the time of accident. However, as per her Election ICard Mark B, her age has been mentioned as 24 years as on 1.1.2008 which means that she was about 24 years of age as on the date of accident i.e. 28.10.2008. No other proof of her age has been filed on record. Therefore, I am inclined to take the age of the petitioner to be 24 years.
Since no income of housewife of 24 years of age has been mentioned in the aforesaid judgment, I am inclined to take monthly contribution of the petitioner towards her family would have been Rs.4,000/.
Therefore, loss of wages for 2 months will be Rs.4,000/ X 2 which comes to Rs.8,000/.
PAIN AND SUFFERING.
70. Considering the nature of injuries sustained by the petitioner Smt. Rani, I grant him a sum of Rs.30,000/ towards pain and suffering. CONVEYANCE.
71. Considering the medical treatment and the nature of injuries suffered by the petitioner, I award a sum of Rs.8,000/ as compensation towards conveyance. SPECIAL DIET.
72. I award a sum of Rs.8,000/ towards special diet to the petitioner.
73. In view of my finding on issue no.1 and 2, the petitioner Smt. Rani is awarded following compensation: Medicines and medical treatment Rs.41,000/ Loss of wages Rs.8,000/ Pain and Suffering Rs.30,000/ Conveyance Rs.8,000/ Suit No.13/11, 14/11, 15/11, 19/11, 27/11, 26/11, 17/11, 20/11 & 16/11 Page 44/46 Special Diet Rs.8,000/ Total Rs.95,000/
74. Therefore, petitioner Smt. Rani is entitled to compensation of Rs.95,000/. Petitioner is also entitled to interest at the rate of 7.5% per annum from the date of filing of petition i.e. 20.11.2008 till its realization.
The said amount be released in cash to the petitioner Smt. Rani.
75. Respondent no.1 being driver, respondent no.2 and 3 being owner and respondent no.4 being insurer of the offending vehicle are jointly and severely liable to make the payment of compensation to petitioners.
76. Respondent No.4, Insurance Company is directed to deposit the award amount with the Nazir of the Court within 30 days. Insurance Company/driver/owner are also directed to place on record the proof of deposit of the award amount, the notice of the deposit to the claimants and the calculation of interest in the Court within 30 days from today.
In case the Insurance Company fails to do so, General Manager of Insurance Company will file reasons for noncompliance.
In case of further delay the Insurance Company will deposit the cheque alongwith the cost of Rs.5,000/ without any further directions as per Judgment of New India Assurance Company Ltd. Vs. Kashmiri Lal, 2007 ACJ 688. Nazir will report to the Undersigned if the cheques in this case are not received within 30 days of passing of this Judgment. Nazir to note the particulars of the award amount etc. in his register today. Copy of the order be given dasti to respondent no.4 for compliance and copy of this order and information be also sent to General Manager of Insurance Company.
File be consigned to Record Room.
Suit No.13/11, 14/11, 15/11, 19/11, 27/11, 26/11, 17/11, 20/11 & 16/11 Page 45/46 The original judgment be kept in the main file i.e. Suit no. 13/11 and the copy of this judgment be placed in the remaining eight connected matters i.e. Suit no. 14/11, 15/11, 19/11, 27/11, 26/11, 17/11, 20/11 & 16/11.
Announced in open court (SWARANA KANTA SHARMA)
on 23.11.2011 JUDGE : MACT : DELHI
Attested copy prepared by the Reader
and given to Ahlmad today itself.
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