Delhi District Court
Mrs. Ranju Pathak (Aged 49 Yrs.) ... vs Sh. Lallan Singh (Driver) on 31 October, 2013
IN THE COURT OF SH. ARUN BHARDWAJ
PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS TRIBUNALII,
DWARKA COURTS: NEW DELHI
MACT No. 22/13
IN THE MATTER OF :
1. Mrs. Ranju Pathak (aged 49 yrs.) (Mother)
W/o Sh. Mukteshwar Pathak
2. Sh. Mukteshwar Pathak (aged 55 yrs.) (Father)
S/o Sh. Laxman Pathak
Both R/o Flat No. 73, Pkt. A,
DDA MIG Flats, Sector13, Dwarka,
New Delhi110075.
Also at:
Village: 142, Ground Floor,
Railway Colony, Samastipur,
Bihar.
... Claimants
Versus
1. Sh. Lallan Singh (Driver)
S/o Sh. Bughbal Singh,
R/o H.No. J94, Gali No. 3,
Shriram Park, Nangloi,
Delhi110041.
2. Sh. Ravinder Singh (Owner)
S/o Sh. Surender Singh,
R/o H.No. 272, Village Gurgaon,
Tehsil & District: Gurgaon
Haryana.
MACT No. 22/13 Smt. Ranju Pathak & Anr. v. Sh. Lallan Singh & Ors. Page No. 1 of 15
3. Bajaj Allianz Gen. Ins. Co. Ltd. (Insurer)
Jemergent Plaza,
4th Floor, Sikankanpur,
Gurgaon, Haryana.
... Respondents
FILED ON : 13.02.2013
HEARD ON : 31.10.2013
DECIDED ON : 31.10.2013
: J U D G M E N T :
1. This is a claim petition filed under Section 166 and 140 of the Motor Vehicles Act, 1988 for grant of compensation.
2. Respondent No. 1 is the driver, Respondent No. 2 is the owner and Respondent No. 3 is the insurer of the offending vehicle.
3. It is stated in this claim petition that on 10/11.02.11, Sh. Sanjiv Pathak (hereinafter referred as the deceased) was going on his motorcycle bearing registration no. HR26AV2844 and near Sohna Chawk, Gurgaon a Toyota Innova bearing no. HR70A5102 coming from Old Railway Road at a high speed in a rash and negligent manner hit the vehicle of the deceased with a great force as a result of which the deceased fell down on the road and suffered grievous injuries. He was shifted to Gurgaon Hospital and from there to Safdarjang Hospital but he died on the way.
4. It is stated that FIR No. 96/11 is registered against Respondent No. 1 at P.S. Gurgaon under Section 279/304 A of MACT No. 22/13 Smt. Ranju Pathak & Anr. v. Sh. Lallan Singh & Ors. Page No. 2 of 15 IPC.
5. It is also stated that the deceased was 29 years of age and was working at Paxcel Technologies Pvt. Ltd. as well as at Spot On Media Pvt. Ltd. and was earning Rs. 25,000/ per month.
6. Claimants have claimed a compensation of Rs. 40 lacs from the respondents with pendentelite interest.
7. Respondent No. 1 and 2 have filed a common written statement stating therein that Respondent No. 1 had a valid driving license and vehicle was insured by Respondent No. 3 on the date of accident. However, it was denied that their vehicle had caused accident resulting in death of the deceased.
8. Insurance company also filed its written statement denying each and every averment made in the claim petition.
9. From the pleadings of parties, following issues were framed:
(i) Whether Sh. Sanjeev Pathak S/o Sh.
Mukteshwar Pathak sustained fatal injuries in a motor vehicle accident dated 11.02.2012 caused due to rash or negligent driving of vehicle i.e. HR70A5102 being driven by Respondent No. 1, owned by Respondent No. 2 and insured by Respondent No. 3? ... OPP
(ii) Whether the petitioners are entitled to claim compensation, if so, what amount and from whom? ... OPP
(iii) Relief.
10. Father of the deceased entered in the witness box as PW1 and stated similar facts visavis accident as were already stated by him in the claim petition. He proved certified copies of MACT No. 22/13 Smt. Ranju Pathak & Anr. v. Sh. Lallan Singh & Ors. Page No. 3 of 15 documents from the court trying criminal case against Respondent No. 1 as Ex. PW1/1, certificates of educational qualifications of the deceased as Ex. PW1/2 and his Voter Card as Ex. PW1/3.
11. In cross examination he stated that he is not an eye witness to the accident and denied a suggestion that an individual cannot be an employee of two employers at the same time.
12. Claimants examined one Sh. Abhay Chandra Jha as PW2 who stated in his evidence by way of affidavit that he is an eye witness to the accident as he was following the deceased who was his nephew on his motorcycle no. HR26AL8726. He has stated that at Sohna Chawk, the offending vehicle HR70A5102 had came from Railway Road side and hit the offending vehicle of the deceased with a great force causing grievous injuries.
13. In cross examination he deposed that the deceased was wearing a helmet at the time of accident and the distance between his motorcycle and the motorcycle driven by the deceased may be around 20 foot. Suggestions contrary to his examination in chief were denied by him.
14. One Sh. Sarvesh Shukla was examined as PW3. He is an employee of M/s. Spot On Media Pvt. Ltd. He proved his Identity Card as Ex. PW3/1 and proved his PAN Card as Ex. PW3/2. He proved salary slip of the deceased for the month of January and February, 2011 as Ex. PW3/3 and Ex. PW3/4 respectively. Authorisation letter in his favour was proved as Ex.
MACT No. 22/13 Smt. Ranju Pathak & Anr. v. Sh. Lallan Singh & Ors. Page No. 4 of 15 PW3/6 and revised salary details of the deceased were proved as Ex. PW3/7. He deposed that the deceased had joined their company as a Trainee on 28.04.10 and every year increase in salary is given depending upon performance of an employee. The increase ranges from 1% of salary to 20%.
15. In cross examination by counsel for insurance company, he stated that as per terms and conditions of his company, an employee cannot work after office hours or during leave for any other company. He deposed that he has personal profile of the deceased where his residential address of Dwarka is mentioned.
16. Fourth witness examined by the claimants as PW4 was Sh. H.G. Sindhwani, Director of M/s. Paxcel Technologies Pvt. Ltd. who stated in his examination in chief that the deceased was working as a consultant with their company and he was being given a compensation of Rs. 8,000/ per month + Internet Expenses as per letter dated 05.05.10. This letter was proved as Ex. PW4/1. He deposed that Consultancy Charges of the deceased were increased on 14.01.11 from Rs. 8,000/ per month to Rs. 10,000/ per month. He further deposed that the deceased was to be given performance based incentive of Rs. 50,000/ after completion of one year. He exhibited details of payments given to the deceased as Ex. PW4/3 and statement showing payments given to the deceased were proved as Ex. PW4/4 and payments given in the month of October, 2010 were proved as Ex. PW4/5.
17. In cross examination he stated that since he is MACT No. 22/13 Smt. Ranju Pathak & Anr. v. Sh. Lallan Singh & Ors. Page No. 5 of 15 Director of the company he does not need any authorisation letter to depose on behalf of his company. He showed his visiting card which was proved as Ex. PW4/D3. He deposed that so far as their company is concerned, the claimant was at liberty to work for other companies and he was free to work either from his own house or from his office. He stated that there were no fixed working hours for the deceased. Other suggestions contrary to his case were denied by him.
18. No other witness was examined by claimants and no witness was examined by any of the respondents.
19. Arguments were addressed by Sh. Vijay Kumar, learned counsel for the claimants and Sh. Pankaj Kumar, learned counsel for the Insurance Company who also filed written arguments and copies of citations/judgments in support of his arguments.
20. Before returning findings on issues framed, question of territorial jurisdiction raised by counsel for Insurance Company is taken up for consideration.
21. Counsel for Insurance Company has argued that none of the conditions mentioned in Section 166(2) of the Motor Vehicles Act, 1988 are attracted to invoke jurisdiction of this Tribunal.
22. He has argued that claimants are not residents of Delhi, accident had not taken place at Delhi and the insurance policy was issued from Haryana. Therefore, this Tribunal has no jurisdiction to pass the award.
23. Though the Insurance Company had taken an MACT No. 22/13 Smt. Ranju Pathak & Anr. v. Sh. Lallan Singh & Ors. Page No. 6 of 15 objection in its written statement that this Tribunal has no territorial jurisdiction to decide the claim petition, but no issue was framed on the point of territorial jurisdiction of this court.
24. Issues were framed on 04.07.13 and thereafter matter was listed before this Tribunal on 29.08.13, 29.09.13 and 25.10.13. But it was not pressed by counsel for Insurance Company that issues on the point of territorial jurisdiction be also framed.
25. That shows that the objection on territorial jurisdiction was given up by insurance company.
26. Claimants have pleaded and deposed that they are resident of Dwarka, Delhi.
27. Claimant No. 1 had entered in the witness box as PW1. When his statement was recorded, he had given his address of Dwarka, New Delhi.
28. No suggestion was given to him that he was not a resident of Dwarka, Delhi. When not even a suggestion was given to Claimant No. 1 in his cross examination that he is not a resident of Delhi, it is too late in the day for the Insurance Company to argue that this Tribunal has no territorial jurisdiction to try this claim petition. Therefore, the objection of Insurance Company to the territorial jurisdiction of this Tribunal is therefore rejected.
29. On the basis of pleadings of parties, evidence on record and arguments addressed, issue wise findings are as under: ISSUE NO. 1
30. Burden of proving this issue is on the claimants.
MACT No. 22/13 Smt. Ranju Pathak & Anr. v. Sh. Lallan Singh & Ors. Page No. 7 of 15
31. For succeeding in a claim petition filed under Section 166 of the Motor Vehicles Act, it is for the claimants to prove that the vehicle which caused the accident was being driven rashly and negligently by its driver.
32. This is sine qua non for getting the relief.
33. Claimants have stated that on the date of accident, while the deceased was driving his motorcycle carefully, he was hit by the offending vehicle which was being driven in a rash and negligent manner.
34. Respondent No. 1 and 2 have denied factum of accident with their offending vehicle. However, claimants have examined an eye witness who has also proved that the offending vehicle being driven in a rash and negligent manner had caused the accident. When the eye witness had entered in the witness box, he was not cross examined by counsel for Respondent No.
1.
35. Statement of eye witness is recorded by the Investigating Officer of the case during investigation and charge sheet is filed on the basis of statement of this very witness.
36. Claimants have placed on record certified copies of documents from the court trying criminal case against Respondent No. 1 under Section 279 and 304 A of IPC.
37. Police after investigation in the matter has filed charge sheet against Respondent No. 1 under Section 279/338/304 A and 427 of IPC which is also prima facie suggestive of negligence of the Respondent No. 1 in driving the offending vehicle in a rash and negligent manner.
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38. In Ranu Bala Paul & Ors. v. Bani Chakraborty & Ors. 1999 ACJ 634, the Hon'ble Gawhati High Court has observed as under: "In deciding a matter tribunal should bear in mind the caution struck by the Apex Court that a claim before the Motor Accidents Claims Tribunal is neither a criminal case nor a civil case. In a criminal case in order to have conviction, the matter is to be proved beyond reasonable doubt and in a civil case the matter is to be decided on the basis of preponderance of evidence, but in a claim before the Motor Accidents Claims Tribunal the standard of proof is much below than what is required in a criminal case as well as in a civil case. No doubt before the tribunal there must be some material on the basis of which the tribunal can arrive or decide things necessary to be decided for awarding compensation. But the tribunal is not expected to take or to adopt the nicety of a civil or of a criminal case. After all, it is a summary inquiry and this is a legislation for the welfare of the society"
39. In the case of National Insurance Co. Ltd. v. Vijay Laxmi & Ors. MAC APP. No. 375/06 dated 05.07.12, the Hon'ble High Court of Delhi has held as under: "8. In Bimla Devi and Ors. v. Himachal Road Transport Corporation and Ors., (2009) 13 SC 530, the Supreme Court held that in a petition under Section 166 of the Act, the Claimants were merely to establish their case on the touchstone of preponderance of probability and holistic view is to be taken while dealing with the Claim Petition under the Motor Vehicles Act. Para 15 of the report is extracted hereunder: "15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was to MACT No. 22/13 Smt. Ranju Pathak & Anr. v. Sh. Lallan Singh & Ors. Page No. 9 of 15 be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied."
9. The report in Bimla Devi (Supra) was relied on by the Supreme Court in its latest judgments in Parmeshwari v. Amir Chand (2011) 11 SCC 635 and Kusum Lata v. Satbir, (2011) 3 SCC 646."
40. In the case of National Insurance Company Ltd. v. Pushpa Rana & Ors.: 2009 ACJ 287, the Hon'ble High Court of Delhi has held that: "The last contention of the appellant insurance company is that the respondentsclaimants should have proved negligence on the part of the driver and in this regard the counsel has placed reliance on the judgment of the Hon'ble Apex Court in Oriental Insurance Co. Ltd. v. Meena Variyal (Supra). On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced: (i) certified copy of the criminal record of criminal case in F.I.R No. 955 of 2004, pertaining to involvement of the offending vehicle; (ii) criminal record showing completion of investigation of police and issue of chargesheet under Sections 279/304A, Indian Penal Code against the driver;
(iii) certified copy of F.I.R., wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of the deceased. These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under the Motor Vehicles Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Hence, this contention of the counsel MACT No. 22/13 Smt. Ranju Pathak & Anr. v. Sh. Lallan Singh & Ors. Page No. 10 of 15 for the appellant also falls face down. There is ample evidence on record to prove negligence on the part of the driver."
41. This case was noticed by Hon'ble High Court of Delhi in the case titled as Cholamandalam M.S. General Insurance Co. Ltd. v. Kamlesh: 2009 (3) AD (Delhi) 310 where adverse inference was drawn because the driver of the offending vehicle had not appeared in the witness box to corroborate his defence taken in the written statement. It was noted that there is nothing on record to show that the claimant had any enmity with the driver of offending vehicle so as to falsely implicate him in the case.
42. Therefore, this issue is decided in favour of claimants and against the respondents.
ISSUE NO. 243. It has come on record that the deceased was Master of Computer Application from Maharishi Dayanand University, Rohtak. He was working for two employers simultaneously. He was employee of Spot On Media Pvt. Ltd. from where he was drawing a salary of Rs. 10,000/ per month. However, he was also given Rs. 800/ for Conveyance Allowance and Rs. 400/ for Food Allowance. Therefore, after deducting these two expenses, income of the deceased being an employee of Spot On Media Pvt. Ltd. was Rs. 8,800/ per month. Simultaneously, he was working as a consultant for Paxcel Technologies and was earning Rs. 10,000/ per month. Therefore, income of the deceased was Rs. 18,800/ per month.
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44. Witness from Spot on Media Pvt. Ltd. has stated that every year increase in salary is given to the employees depending on their performance. The increase ranges from 1% to 20%.
45. Similarly PW4 has also stated that the deceased would have earned performance based incentive of Rs. 50,000/ after completion of one year on the job.
46. Deceased was a highly qualified individual. He had Masters Degree from Maharishi Dayanand University, Rohtak. Simultaneously, he was working for two employers. Definitely, the deceased had future prospects.
47. Counsel for Insurance Company has filed several judgments to argue that in this case no compensation be awarded for loss of future prospects. However, all those judgments are where there was no proof of income of the deceased and compensation was assessed on the basis of minimum wages payable to an unskilled workman.
48. Age of the deceased at the time of his death was less than 40 years. Therefore, claimants are entitled to compensation to an extent of 50% for future prospects.
49. Therefore, once 50% is added for future prospects, the assumed income of the deceased shall be Rs. 28,200/ per month.
50. Since the deceased was a bachelor, 50% is to be deducted for personal expenses.
51. Therefore, financial loss for the claimants would be Rs. 14,100/ per month or Rs. 1,69,200/ p.a. As per Voter Card of MACT No. 22/13 Smt. Ranju Pathak & Anr. v. Sh. Lallan Singh & Ors. Page No. 12 of 15 mother of the deceased, her age when the deceased suffered fatal injuries was 49 years. Therefore, multiplier of 13 will apply and financial loss for the claimants will be Rs. 21,99,600/.
52. Claimants are also awarded a compensation of Rs. 25,000/ for Loss of Love and Affection.
53. In the case of Rajesh & Others Vs. Rajbir Singh & Others, 2013(6) SCALE 563, the Hon'ble Supreme Court has made following observations vis a vis Cremation Charges: "We may also take judicial notice of the fact that the Tribunals have been quite frugal with regard to award of compensation under the head 'Funeral Expenses'. The 'Price Index', it is a fact has gone up in that regard also. The head 'Funeral Expenses' does not mean the fee paid in the crematorium or fee paid for the use of space in the cemetery. There are many other expenses in connection with funeral and, if the deceased is follower of any particular religion, there are several religious practices and conventions pursuant to death in a family. All those are quite expensive. Therefore, we are of the view that it will be just, fair and equitable, under the head of 'Funeral Expenses', in the absence of evidence to the contrary for higher expenses, to award at least an amount of Rs. 25,000/."
54. Therefore, the claimants are awarded Rs. 25,000/ towards Cremation Charges.
55. Claimants are also awarded a compensation of Rs. 10,000/ for Loss of Estate.
56. Hence, total compensation payable to the claimants would be Rs. 22,59,600/ which shall be payable with interest @ 7.5% per annum from the date of filing of this petition which is MACT No. 22/13 Smt. Ranju Pathak & Anr. v. Sh. Lallan Singh & Ors. Page No. 13 of 15 13.02.2013 till its realization.
57. Interim compensation, if paid earlier, shall be deducted from the compensation awarded in favour of claimants now.
58. Insurance company has not proved any defence. Therefore, the compensation shall be deposited by the insurance company within 30 days from today under intimation to the claimants as well as their counsel by registered post. In case even after passing of 90 days the insurance company fails to deposit this compensation, it shall be recovered by attaching its bank account with a cost of Rs. 5,000/ as per directions of the Hon'ble High Court of Delhi in the case of New India Assurance Co. Ltd. v. Kashmere Lal & Ors., 2007 ACJ 688. If the compensation is not deposited within 30 days, interest shall be 12% p.a. instead of 7.5% p.a. from delayed period.
59. The entire compensation shall be payable to mother of the deceased.
60. Nazir of this court will also send intimation of deposit of compensation to the claimants as well as to their counsel.
61. Ahlmad will put up this file with the report from Nazir regarding deposit of compensation again on 07.02.2014.
62. In view of the financial need expressed by father of the deceased which is marriage of younger sister of the deceased, Rs. 10 lacs shall be released immediately to enable claimants to solemnize marriage of their daughter.
63. Balance compensation shall be deposited in 10 FDRs of equal amount for a period of 1 to 10 years in any nationalised MACT No. 22/13 Smt. Ranju Pathak & Anr. v. Sh. Lallan Singh & Ors. Page No. 14 of 15 bank of the choice of Claimant No. 1. Monthly interest will be credited in the Saving Bank Account of Claimant No. 1 regularly.
64. All the original FDRs shall remain with the bank. Only copies thereof will be given to the Claimant No. 1. However, pass book will be given to the Claimant No. 1. No cheque book shall be issued to the Claimant No. 1.
65. No loan or advance will be given against these deposits.
66. FDRs shall not be prematurely encashed without leave of this Tribunal.
67. Copy of this order be given free of cost to all the parties.
68. File be consigned to the Record Room.
Announced in the Open Court On the 31st day of October, 2013 (ARUN BHARDWAJ) PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNALII DWARKA COURTS, NEW DELHI.
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