Delhi District Court
Smt. Full Kumari Devi vs Mr. Himmat Singh on 5 December, 2018
IN THE COURT OF SH SANJAY SHARMA, PRESIDING OFFICER,
MOTOR ACCIDENT CLAIMS TRIBUNAL : EAST DISTRICT :
KARKARDOOMA COURTS : DELHI
Suit No. 4338/11
Unique Case I.D. No.: MACT/32661/2011
1. Smt. Full Kumari Devi
W/o Sh. Suresh Ram
..... Mother
2. Sh. Suresh Ram
S/o Sh. Dhuran Ram
..... Father
3. Baby Rubi Kumari
D/o Sh. Suresh Ram
..... Sister
4. Baby Vibha Kumari
D/o Sh. Suresh Ram
..... Sister
5. Master Sunil Kumar Ram
S/o Sh. Suresh Ram
..... Brother
Residents of:
H. No. 222, Gali No. 3, Naagar Mohalla,
Mohan Baba Mandir, Mandawali,
Delhi
Permanent Address:
15, Village Dinamanpur Khraj,
Anchal Khanpur, Distt. Samastipur,
Bihar-818 417
..... Petitioners
VERSUS
1. Mr. Himmat Singh
S/o Sh. Padam Singh
R/o H. No. 14, Raj Kamal Sadan,
Preet Vihar, Delhi
Permanent Address:
Village Mudhali, Distt. Almora,
Uttrakhand
Suit No.: 4338/11 Full Kumari Devi & Ors vs Himmat Singh & Ors 1 of 21
2. M/s Sneh Tourist Corporation
B-11/12, Raj Kamal Sadan, Commercial Complex,
Preet Vihar, Vikas Marg, Delhi-110092
..... Owner
3. The New India Insurance Co. Ltd.
H-65, 1st Floor, Connaught Place,
New Delhi-110001
..... Insurer
4. Mr. Pappu Jain
S/o Sh. Chand Mal Jain
R/o 443-446, Inderpuri,
Karkardooma, Delhi-110002
..... Respondents
Date of Institution : 07.10.2011
Date of Reserving : 19.11.2018
Date of Judgment : 05.12.2018
JUDGMENT
PLEADINGS:
1. Mr. Naresh Kumar, (the deceased), 18 years, employed as 'helper' with the respondent No. 2, died in a motor vehicular accident that occurred at 08.10 a.m. on 06.09.2011 in front of Gate of Nursery School, Shaheed Rajpal DAV Public School on Vikas Marg, Opposite Deepak Memorial Hospital, Anand Vihar, Delhi, while he was standing on the left side of the bus after getting the children boarded down, when the driver of the bus make 'TATA' bearing registration No. DL-1 PB 2959 (the bus) belonging to the respondent No. 2, allegedly driven in a rash and negligent manner, had crushed him under left front wheel of the bus. The said accident was subject matter of investigation vide FIR No. 266/11 under section 279/304-A of the Indian Penal Code, 1860 (IPC) registered at PS Anand Vihar.
Suit No.: 4338/11 Full Kumari Devi & Ors vs Himmat Singh & Ors 2 of 21
2. The petitioners being parents and siblings of the deceased instituted an accident claim case in the wake of Detailed Accident Report (DAR) submitted by ASI Om Pal Singh, Investigating Officer, CMVAI Cell, East District Delhi under section 166 (4) of the Motor Vehicles Act, 1988 (MV Act) on the basis of evidence collected during investigation of criminal case. In the meantime, the petitioners filed petition under section 166 of M.V. Act impleading, inter alia, the respondent No. 1 to 3 as the driver, registered owner and insurer of the bus.
3. The respondent No. 1 appeared. He had not filed written statement. He had not contested the accident claim case. He was proceeded ex-parte.
4. The respondent No. 2 was not served with the notice of the petition. For that reason, the respondent No. 2 neither appeared nor contested the accident claim case.
5. The respondent No. 3 / insurer, in its written statement, attributed negligence to the deceased on the ground that he was boarding the moving bus. It pleaded breach of terms and conditions of insurance policy on the ground that the respondent No. 1 was holding driving license authorizing him to ply LMV (transport) and motorcycle. It pleaded that the respondent No. 1 was not authorized to drive the bus. It contended that the respondent No. 1 was not holding a valid and effective driving license to drive the bus. It denied liability to pay compensation to the petitioners.
Suit No.: 4338/11 Full Kumari Devi & Ors vs Himmat Singh & Ors 3 of 21 ISSUES:
6. On the pleadings, following issues were framed:
(i) Whether the deceased Naresh Kumar suffered fatal injuries in a road accident on 06.09.2011 involving vehicle i.e. Bus bearing registration No. DL-1 PB 2959 driven by the respondent No. 1 in a rash and negligent manner?
(OPP)
(ii) Whether the petitioners are entitled for any compensation, if so, to what amount and from whom?
(OPP)
(iii) Relief.
PETITIONER'S EVIDENCE:
7. Smt. Full Kumari, mother of the deceased appeared as PW-1. She filed evidence by way of affidavit Ex.PW1/A. She relied on voter cards of the petitioners and residence certificate Ex.PW1/1 (colly), receipt of dead body Ex.PW1/2, funeral receipt Ex.PW1/3, charge-sheet Ex.PW1/4, death certificate Ex.PW1/5 and detailed accident report (DAR) Ex.PW1/6.
8. PW-2 Mukesh Kumar filed evidence by way of affidavit Ex.PW2/A. He deposed manner of accident. RESPONDENT'S EVIDENCE:
9. R3W1 Naresh Chand Pant, Jr. Clerk, RTO, Almora proved verification report regarding driving license of the respondent No. 1 issued by RTO, Almora Ex.R3W1/1 and copy of driving license of the respondent No. 1 Ex.R3W1/2.
10. R3W2 Mahavir Singh, Assistant, New India Assurance Co. Ltd. proved insurance policy Ex.R3W2/1, notice under Order 12 Rule 8 CPC issued to the respondent No. 1 and
2 Ex.R3W2/2 and Ex.R3W2/3, and postal receipts Ex.R3W2/4 to Ex.R3W2/6. He deposed that the driver and owner had not produced the original documents.
Suit No.: 4338/11 Full Kumari Devi & Ors vs Himmat Singh & Ors 4 of 21 AWARD:
11. The tribunal, vide judgment and award dated 02.07.2014, awarded compensation in the sum of Rs.
11,75,472/- alongwith interest @ 9% per annum from the date of filing of the petition till realization. The tribunal directed the respondent No. 3 / insurer to pay the compensation to the petitioners and granted recovery rights against the respondent No. 1 and 2.
PROCEEDINGS FOR SETTING ASIDE EX-PARTE AWARD:
12. The respondent No. 2 moved an application under Order 9 Rule 13 read with Section 151 of the Code of Civil Procedure, 1908 (CPC) for setting aside judgment and award dated 02.07.2014. The said application was dismissed vide order dated 29.04.2015.
APPEAL:
13. Feeling aggrieved, the respondent No. 2 / owner preferred appeal vide MACA 468/15 tilted as 'M/s. Sneh Tourist Corporation vs. Full Kumar Devi & Ors.' REMAND:
14. Hon'ble High Court, vide judgment dated 01.08.2017, set aside the judgment and award dated 02.07.2014 and remitted the accident claim case, as under:
"10. Having heard the learned counsel on all sides, this court finds that the tribunal has failed to exercise proper caution or follow the procedure. There are no proceedings recorded issuing notice of show cause to the appellant either on the DAR or on the claim petition at any stage. The learned counsel for the insurance company pointed out that, in the DAR (Ex.PW1/6), the investigating police officer had indicated (in column six) that the driver and owner were being produced before the tribunal alongwith Suit No.: 4338/11 Full Kumari Devi & Ors vs Himmat Singh & Ors 5 of 21 DAR. Though this seems to be import of the DAR, the proceedings of the tribunal do not confirm this to be a fact. There is nothing to show that the appellant had been informed of obligation to appear or being bound down for such purposes. Even if Himmat Singh is shown to have been present on some of the subsequent dates of hearing before the tribunal, such presence by itself also led to be inference that the appellant had been made aware of the pendency of the claim proceedings in the tribunal.
11. For the foregoing reasons, the impugned judgment in so far as it holds the appellant vicariously responsible cannot be upheld. For the same reasons, in absence of proper opportunity being given to the appellant to contest the defence taken by the insurance company, the recovery rights also as granted by the impugned judgment cannot be sustained. In fact, in absence of show cause notice having been issued or served, either on the DAR or on the claim petition, the plea of the appellant being that it was some other person who was at the wheel of the bus would impel the court to conclude that even the issue of negligence will have to be re-adjudicated.
12. Thus, the impugned judgment is set aside. The inquiry before the tribunal is revived. The appellant is hereby served with show cause notice on the claim petition, and the DAR earlier submitted. It shall be obliged to file its written statement, if it seeks to contest, with the tribunal within thirty days of the date of appearance of the parties now being fixed. After such opportunity has been availed by the appellant, liberty also being given to the other parties to claim proceedings to submit additional pleadings, if any, the tribunal will hold fresh inquiry in which each party will be entitled to lead evidence, in the case of claimants and insurer it being in the nature of additional evidence. Before proceeding further, the tribunal will also consider the necessity of impleading the person mentioned by the appellant herein to be at the wheel of the bus at the relevant point of time as additional respondent, this, of course, without prejudice to the contentions of the other parties.
13. In this view, the tribunal may also apply its mind to reframe the issues or frame additional issues....."
Suit No.: 4338/11 Full Kumari Devi & Ors vs Himmat Singh & Ors 6 of 21 PROCEEDINGS AFTER REMAND:
15. On remand, the tribunal issued notice to the petitioners, the respondent No. 1, the respondent No. 3 / insurer and the respondent No. 4.
ADDITIONAL PLEADINGS:
16. The respondent No. 1 filed written statement. He denied that he was driving the bus. He alleged that the respondent No. 4 / Pappu Jain was the driver of the bus. He denied liability to pay compensation to the petitioners.
17. The respondent No. 2 / owner filed written statement.
In its written statement, it pleaded that it had entrusted the bus to its regular driver / the respondent No. 4 who was holding valid and effective driving license to drive the bus. It contended that it had not entrusted the bus to the respondent No. 1. It contended that the respondent No. 1 was not on the steering wheel. It contended that it has not breached any term and condition of insurance policy as it had entrusted the bus to duly licensed driver. It contended that the respondent No. 4 / Pappu Jain was driving the bus at the time of the accident. It contended that the deceased was 18 years old and he was not expected to earn Rs. 8,000/- per month. It denied that the deceased was working as a conductor and earning Rs. 8,000/- per month. It denied liability to pay compensation.
18. The respondent No. 4 / Pappu Jain filed written statement. In his written statement, he contended that the respondent No. 2 had entrusted the bus to him on 06.09.2011. He contended that he was holding a valid driving license to drive the bus.
Suit No.: 4338/11 Full Kumari Devi & Ors vs Himmat Singh & Ors 7 of 21
19. The respondent No. 4 / Pappu Jain, in his written statement, contended that he had not entrusted the bus to the respondent No. 1. He contended that the respondent No. 1 was not on steering wheel and he was falsely implicated. He contended that he had parked the bus after the students alighted and went to his house near the school and when he returned for picking children after school hours, the bus was not found there and he learned that police had taken the bus to the police station Anand Vihar in connection with some accident case. He contended that he went to police station and informed them that the bus was brought by him to the school and he went to his house after parking the bus.
ISSUES RE-FRAMED:
20. On the pleadings, issues were re-framed as under:
(i) Whether Mr. Naresh Kumar died in a motor vehicular accident on 06.09.2011 at about 8.10 a.m., Opposite Deepak Memorial Hospital, Vikas Marg, Anand Vihar, Delhi due to rash and negligent driving of Bus bearing registration No. DL-1 PB 2959?
(OPP)
(ii) Whether Bus bearing registration No. DL-1 PB 2959 was being driven at the time of the accident by the respondent No. 1 / Himmat Singh or the respondent No. 4 / Pappu Jain?
(OPR1, R2 & R4)
(iii) Whether the respondent No. 1 / Himmat Singh or the respondent No. 4 / Pappu Jain as the case may be, was driving the Bus bearing registration No. DL-1 PB 2959 on a valid and effective driving license, if not, its effect?
(OPR1, R2 & R4)
(iv) Whether there was breach of any term and condition of insurance policy, if so, its effect?
(OPR3) Suit No.: 4338/11 Full Kumari Devi & Ors vs Himmat Singh & Ors 8 of 21
(v) Whether the petitioners are entitled to compensation, if so, to what amount and from whom?
(OPP)
(vi) Whether the petitioners are entitled to interest on the award amount, if so, at what rate of interest and for which period?
(OPP)
(vii) Relief.
PETITIONER'S EVIDENCE:
21. The petitioners have not led any additional evidence.
22. PW-2 Mukesh Kumar was cross-examined by counsel for the respondent No. 1, 2 and 4.
RESPONDENT'S EVIDENCE:
23. R2W1 Subhash Chander Dhingra, partner of the respondent No. 2, filed evidence by way of affidavit Ex.R2W1/A. He substantiated the defence already taken in the written statement of the respondent No. 2.
24. R2W2 Pappu Jain filed evidence by way of affidavit Ex.R2W2/A. He deposed the defence taken by him in his written statement. He relied on document Ex.R2W2/1.
25. R3W3 Sunil Kumar Verma, Assistant Manager, The New India Assurance Co. Ltd. relied on notice under Order 12 Rule 8 CPC issued to the respondent No. 1 and 2 already Ex.R3W2/2 and Ex.R3W2/3, postal receipts already Ex.R3W2/4 to Ex.R3W2/6, insurance policy already Ex.R3W2/1 and verification report regarding driving license of the respondent No. 1 issued by RTO, Almora already Ex.R3W1/2. He deposed that there was violation of terms and conditions of insurance policy at point 'X' to 'X' of insurance policy Ex.R3W2/1.
Suit No.: 4338/11 Full Kumari Devi & Ors vs Himmat Singh & Ors 9 of 21
26. R3W4 Ravindra Kumar, Jr. Assistant, RTO, Almora, Uttrakhand relied on verification report issued by ARTO, Almora, Uttrakhand Ex.R3W4/A, identity card Ex.R3W4/B, copy of relvant page of license register containing the details of the license issued to the respondent No. 1 Ex.R3W4/C. FINAL ARGUMENTS:
27. I have heard arguments of Ms. Pooja Goel, Advocate for the petitioners, Sh. Rajat Tripathi, Advocate for the respondent No. 2 and 4, and Sh. S. Ghosh, Advocate for the respondent No. 3 / insurer and examined the evidence on the file of the tribunal. I have perused written arguments alongwith case law filed on behalf of the respondent No. 2 and 4. ISSUE NO. 1:
28. In an action founded on the principle of fault liability, proof of rash and negligent driving is sina qua non. However, standard of proof is not that of proof beyond reasonable doubt. The evidence is tested on touchstone of preponderance of probabilities. In order to discharge the burden of proof, the petitioners examined PW-2 Mukesh Kumar. It may be relevant to note that PW-2 Mukesh Kumar had reported the accident to the police on the basis of which DD No. 8A dated 06.09.2011 was lodged at 9.00 a.m. on 06.09.2011 PS Anand Vihar. PW-2 Mukesh Kumar deposed, on strength of affidavit Ex.PW2/A, sequence of events leading to the accident. He categorically deposed that on 06.09.2011 at about 8.10 a.m., the deceased was standing on the side after the students alighted from the bus bearing registration No. DL-1 PB 2959 when the driver suddenly driven the bus in high speed without any caution.
Suit No.: 4338/11 Full Kumari Devi & Ors vs Himmat Singh & Ors 10 of 21
29. PW-2 Mukesh Kumar categorically deposed that the deceased was crushed under the tyres of the bus. He categorically deposed that the respondent No. 1 was driving the bus bearing registration No. DL-1 PB 2959 in high speed and caused death of the deceased. He was cross-examined by counsel for the respondent No. 1. In his cross-examination conducted by counsel for the respondent No. 1, he categorically denied the suggestion that the respondent No. 1 was not driving the bus at the time of the accident. He categorically denied that the respondent No. 4 / Pappu Jain was driving the bus. In his cross-examination conducted by counsel for the respondent No. 2 and 4, he categorically deposed that he was present at the place of the accident. He deposed that he and the deceased were working in Sneh Tourist Corporation. He categorically deposed that regular driver of the bus who caused the accident was Himmat Singh. He categorically denied the suggestion that the respondent No. 1 / Himmat Singh was not the regular driver of the bus but the respondent No. 4 / Pappu Jain. The respondent No. 3 / insurer has not cross-examined him.
30. It is, therefore, evident that the respondents have not disputed the accident. They have not disputed that the deceased suffered injuries which proved fatal in the accident. They have not questioned PW-2 Mukesh Kumar on the aspect of rash and negligent driving of the bus. The respondent No. 1, though claimed, that he was not driving the bus. However, he has not appeared in the evidence to substantiate his defence. The respondent No. 4 claimed that he was not present at the place of the accident at the time of the accident.
Suit No.: 4338/11 Full Kumari Devi & Ors vs Himmat Singh & Ors 11 of 21
31. It is, therefore, evident that evidence of PW-2 Mukesh Kumar remained unchallenged. There is no evidence to the contrary. It cannot be brushed aside that PW-2 Mukesh Kumar reported the accident immediately to the police. It is, therefore, proved that the driver of the bus had suddenly started the bus without any caution and assistance of any conductor and for that reason, the deceased who was standing on the side of the bus came under the wheels of the bus and suffered fatal injuries. Driving a heavy vehicle without any caution or assistance of any conductor in total disregard to the safety and security of the persons standing near the vehicle is gross negligence.
32. The deceased was admitted at 09.30 a.m. on 06.09.2011 in Dr. Hedgewar Arogya Sansthan, Delhi-110032. He died at 10.15 a.m. on 06.09.2011. According to post-mortem report, the deceased had as many as 10 injuries ranging from head to both lower limbs. Cause of death of the deceased was 'haemorrhage and shock consequent upon blunt force impact to the abdomen and left lower limb'. It is, therefore, proved that the deceased died as a result of injuries suffered by him due to rash and negligent driving of the bus. Accordingly, issue No. 1 is decided in favour of the petitioners and against the respondents.
ISSUE NO. 2:
33. The case of the respondent No. 1, 2 and 4, as pleaded in their separate written statements, is that the respondent No. 1 was not the driver of the bus. According to them, the respondent No. 4 was the driver of the bus.
Suit No.: 4338/11 Full Kumari Devi & Ors vs Himmat Singh & Ors 12 of 21
34. At this juncture, it may be relevant to have a re-look to the evidence of PW-2 Mukesh Kumar. PW-2 Mukesh Kumar, in his affidavit Ex.PW2/A, categorically stated that the respondent No. 1 was driving the bus bearing registration No. DL-1 PB 2959 in high speed and caused death of the deceased. In his cross-examination conducted by counsel for the respondent No. 1, he categorically denied the suggestion that the respondent No. 1 was not driving the bus at the time of the accident. He categorically denied that the respondent No. 4 / Pappu Jain was driving the bus. In his cross-examination conducted by counsel for the respondent No. 2 and 4, he categorically deposed that he was present at the place of the accident. He deposed that he and the deceased were working in Sneh Tourist Corporation. He categorically deposed that regular driver of the bus who caused the accident was Himmat Singh. He categorically denied the suggestion that the respondent No. 1 / Himmat Singh was not the regular driver of the bus but the respondent No. 4 / Pappu Jain.
35. The respondent No. 1 contended, in his written statement, that he was not driving the bus at the time of the accident. However, he has not appeared to depose his defence.
The respondent No. 4 categorically stated that he went to his house after parking the bus. It is not his case that he was driving the bus at the time of the accident. R2W1 Subhash Chander Dhingra deposed that he was not present at the place of the accident. He deposed that he cannot tell who was driving the bus at the time of the accident.
Suit No.: 4338/11 Full Kumari Devi & Ors vs Himmat Singh & Ors 13 of 21
36. The respondent No. 4 / Pappu Jain categorically deposed that he was informed that the bus had been seized by the police of PS Anand Vihar. He categorically stated that he does not know as to what happened in the intervening period of 8.15 a.m. to 12.30 p.m. He categorically deposed that as per information received by him, the bus was driven by the respondent No. 1 / Himmat Singh and he had caused the accident.
37. Therefore, it is beyond any doubt that the respondent No. 1 / Himmat Singh was driving the bus at the time of the accident.
38. Accordingly, issue No. 2 is decided in favour of the petitioners and the respondent No. 3 / insurer and against the respondent No. 1, 2 and 4.
ISSUE NO. 3:
39. The respondent No. 3 / insurer has pleaded breach of terms and conditions of insurance policy on the ground that the respondent No. 1 was not holding a valid and effective driving license to drive the bus. R3W4 Ravindra Kumar, Jr. Assistant, RTO, Almora, Uttrakhand proved verification report issued by Mr. Alok Joshi, ARTO, Almora Ex.R3W4/A and copy of relevant page of the license register containing details of the license issued to Mr. Himmat Singh Ex.R3W4/C. The bus in question is a heavy passenger motor vehicle under section 2 (17) M.V. Act. According to registration certificate, its laden weight is 14,860 kg. According to verification report Ex.R3W4/A, the respondent No. 1 was holding driving license bearing No. UK- 0120080006685 issued on 29.06.2010.
Suit No.: 4338/11 Full Kumari Devi & Ors vs Himmat Singh & Ors 14 of 21
40. The said license authorized the respondent No. 1 to drive LMV (non-transport) and motorcycle with gear (MCWG). It was endorsed for PSV (transport) on 16.03.2013. According to details of license Ex.R2W4/C, it was valid for LMV (non- transport) and motorcycle for the period from 14.12.2009 to 13.12.2012. It is, therefore, proved that the respondent No. 1 was not holding a valid driving license to drive the bus on the date of the accident i.e. 06.09.2011.
41. Accordingly, issue No. 3 is decided in favour of the the respondent No. 3 / insurer and against the respondent No. 1, 2 and 4.
ISSUE NO. 4:
42. The case of the respondent No. 2 is that it had entrusted the bus to the respondent No. 4 who had a valid driving license to drive the bus and therefore, there was no breach of any term and condition of insurance policy. R2W4 Subhash Chander Dhingra deposed, in his affidavit Ex.R2W1/A, to this effect. He categorically stated that the respondent No. 4 was instructed not to hand over the bus to anyone for driving. However, he has not filed any document to show that he had entrusted the bus to the respondent No. 4. He has not produced any record pertaining to payment of salary or emolument to the respondent No. 4. He deposed that there is no record maintained with regard to assignment of the buses to the drivers. He deposed that the school bus was used for transportation of children of DAV Public School, Junior Branch, Dayanand Vihar. He deposed that he had not deposited driving license of the driver with the school authorities.
Suit No.: 4338/11 Full Kumari Devi & Ors vs Himmat Singh & Ors 15 of 21
43. It is, therefore, evident that there is no evidence that the respondent No. 2 had employed or entrusted the bus to the respondent No. 4.
44. The respondent No. 2 has not explained as to how the key of the bus came into the hands of the respondent No. 1 if it had entrusted the bus to the respondent No. 4. The respondent No. 4 has also not explained as to how the keys of the bus found their way to the respondent No. 1 if he went to his house after parking the bus. Only explanation offered by him was that the key of the bus was kept hanging on the ceiling of the bus.
45. The respondent No. 2 has failed to prove that the respondent No. 4 was its regular driver and it had entrusted bus to a duly licensed driver authorized to drive the bus.
46. Entrustment of a heavy passenger motor vehicle to a person not possessing the competence to drive the same is a fundamental breach of insurance policy. The respondent No. 2 breached material term of insurance policy by engaging an incompetent and unauthorized person to drive the bus. The respondent No. 3 / insurer is entitled to recovery rights against the respondent No. 1 and 2 for recovery of the award amount alongwith up to date interest.
47. Accordingly, issue No. 4 is decided in favour of the the respondent No. 3 / insurer and against the respondent No. 1 and 2.
ISSUE NO. 5:
48. The petitioners being parents and younger brother of the deceased are seeking compensation.
Suit No.: 4338/11 Full Kumari Devi & Ors vs Himmat Singh & Ors 16 of 21 ASSESSMENT OF INCOME OF THE DECEASED:
49. First step towards computation of loss of dependency is the ascertainment of income the deceased.
50. The case of the petitioners, as pleaded in the petition, is that the deceased was employed as a 'helper' and earning Rs. 8,000/- per month. The petitioners have not led any evidence to prove employment and income of the deceased. In the absence of any evidence on the aspect of employment and income of the deceased, his income is notionally assessed as Rs. 6,422/- per month, it being prevalent minimum wages in Delhi for unskilled workers.
DEDUCTION TOWARDS PERSONAL LIVING EXPENSES:
51. The deceased was a bachelor. The petitioner No. 1 and 2 are parents of the deceased. The petitioner No. 3 to 5 are minor siblings of the deceased. The petitioner No. 2 has not appeared in the witness box to depose that he was not earning and capable of maintaining the family. In the opinion of the tribunal, the petitioner No. 3 to 5 cannot be considered as dependent upon the deceased. Accordingly, the deduction to the extent of 50% is made towards personal expenses of the deceased.
52. In the case of UTTAR PRADESH STATE ROAD TRANSPORT CORPORATION versus BIMLA DEVI & ORS., MAC APPEAL No. 819/2010 decided on 26.09.2017, the deceased, 19 years, bachelor, died in a motor vehicular accident. His widowed mother and sibling instituted accident claim case. They contended that deduction of personal & living expenses should have been to the extent of 1/3 rd.
Suit No.: 4338/11 Full Kumari Devi & Ors vs Himmat Singh & Ors 17 of 21
53. Hon'ble High Court of Delhi held that since it is a case of claim on account of death of a bachelor, deduction on account of personal & living expenses will have to be to the extent of 50%.
54. In BIRJESH & ORS versus ANIL & ORS (NATIONAL INSURANCE CO LTD), MAC.APP. 419/2017 decided on 21.09.2017, mother and three siblings (the appellants) instituted accident claim case for compensation of 19 years old, a bachelor. Their contention was that since the deceased was survived by three siblings, deduction on account of personal and living expenses should have been to the extent of one-third. Hon'ble Delhi High Court held that 'The fact that the deceased was a bachelor, the deduction on account of personal and living expenses to the extent of fifty per cent (50%) is in accord with the ruling of the Supreme Court in Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121'.
APPLICATION OF MULTIPLIER:
55. The petitioners have not led any evidence on the aspect of age of the deceased. However, the age of the deceased is mentioned as 18 years in post-mortem report.
Accordingly, the age of the deceased is considered as 18 years. Therefore, multiplier of 18 as applicable to age group between 15 to 20 years would apply.
Suit No.: 4338/11 Full Kumari Devi & Ors vs Himmat Singh & Ors 18 of 21 FUTURE PROSPECTS:
56. The deceased was self-employed. He was below 40 years. Following the ruling of a Constitution Bench of the Supreme Court delivered on 31.10.2017 in SLP (C) 25590/2014, National Insurance Company Ltd. Vs. Pranay Sethi and Ors., there will be addition of income to the extent of 40%.
LOSS OF DEPENDENCY:
57. Applying the multiplier of 18 after deducting 50% from the income of the deceased and addition of 40% of future prospects, the loss of dependency is computed as (6,422 / 2 x 140 / 100 x 18 x 12) = Rs. 9,71,006.4/- (rounded of) Rs.
9,71,000/-
NON-PECUNIARY DAMAGES:
58. In view of Pranay Sethi (supra), Rs. 15,000/- each are added on account of loss of estate and funeral expenses.
59. The compensation awarded to the petitioners is computed, as under:
Sl. No. Head of compensation Amount
1. Loss of dependency Rs. 9,71,000/-
2. Non-pecuniary (in view of Pranay Sethi (supra) Rs. 30,000/-
Total Rs. 10,01,000/-
AWARD
60. The petitioner No. 1 and 2 are awarded
compensation in the sum of Rs. 10,01,000/- alongwith interest @ 9% per annum from the date of filing of the petition till realization.
Suit No.: 4338/11 Full Kumari Devi & Ors vs Himmat Singh & Ors 19 of 21
61. The respondent No. 3 / insurer deposited an amount of Rs. 13,49,259/-, pursuant to earlier award. The said amount was released to the petitioners. The respondent No. 3 / insurer shall be entitled to refund of excess amount paid by it.
62. The respondent No. 3 / insurer is granted recovery rights against the respondent No. 1 and 2 for recovery of the award amount alongwith up to date interest by way of appropriate proceedings and liability of the respondent No. 1 and 2 shall be joint and several.
63. Copy of award be supplied to the petitioners and the respondents for compliance. File be consigned to record room.
SANJAY Digitally signed by SANJAY
SHARMA
Location: East District,
SHARMA Karkardooma Courts, Delhi
Date: 2018.12.06 17:32:24 +0530
Announced in the open Court Sh. Sanjay Sharma
Dated: 05th December, 2018 Presiding Officer MACT (East)
Karkardooma Court, Delhi
Suit No.: 4338/11 Full Kumari Devi & Ors vs Himmat Singh & Ors 20 of 21
Suit No. 4338/11
05.12.2018
Present : Ms. Pooja Goel, Advocate for the petitioners.
Sh. Rajat Tripathi, Advocate for R2 and R4. Sh. S. Ghosh, Advocate for R3 / Insurance Co.
Vide separate judgment, award is passed. The respondent No. 3 / insurance company shall file calculation of the excess amount paid by it. To come up for compliance / further directions on 04.01.2019.
Sanjay Sharma PO MACT (East)/KKD Delhi/05.12.2018 Suit No.: 4338/11 Full Kumari Devi & Ors vs Himmat Singh & Ors 21 of 21