Delhi District Court
Shilpa Samanta vs Anand Singh (Driver) on 31 January, 2020
IN THE COURT OF SH. VIVEK KUMAR GULIA
P.O : MOTOR ACCIDENT CLAIMS TRIBUNAL
EAST DISTRICT : KARKARDOOMA COURTS : DELHI
In the matters of :
MACP No. 195/16
Unique Case I.D. No. DLET010011292013
1. Shilpa Samanta
D/o Late Sh. Dibyendu Samanta
2. Shuvham Samanta
S/o Late Sh. Dibyendu Samanta
Both, R/o N114/D, Narayan Nagar,
Laxmi Nagar, Delhi110092. .....................Petitioners
Versus
1. Anand Singh (driver)
S/o Sh. Mohan Singh
R/o Village Chapad, PO Bhujan, Distt. Almora, Uttranchal.
2. Smt. Ranjit Kaur Chahal (owner)
W/o Sh. Surjit Singh
R/o O23, J.J. Colony, Sriniwas Puri, New Delhi110014.
3. National Insurance Co. Ltd. (insurer)
DO XVI, 13, Pankaj House, 2nd Floor,
New Friends Colony, New Delhi110025. ......Respondents
AND MACP No. 196/16 CNR No. DLET010011332013
1. Shilpa Samanta
2. Shuvham Samanta (Details as above) .....................Petitioners __________________________________________________________________________________________ MACP No.195/16; Shilpa Samanta & Anr. Vs. Anand Singh & Ors;
MACP No.196/16; Shilpa Samanta & Anr. Vs. Anand Singh & Ors; Page 1 of 16Versus
1. Anand Singh (driver)
2. Smt.Ranjit Kaur Chahal (owner)
3. National Insurance Co. Ltd. (insurer) (Details as above) ..................Respondents Date of Institution : 25.09.2013 Date of Reserving : 17.01.2020 Date of Judgment : 31.01.2020 AWARD
1. By this common award, both the claim petitions arising out of same accident, filed under section 166/140 of the Motor Vehicles Act, 1988, would be decided.
2. Important facts of the case are as under. Smt. Pampa Samanta, mother of petitioners (in MACP No.195/16) and Dibyendu Samanta, father of petitioners (in MACP No.196/16) died on account of a motor vehicular accident happened on 12.06.2011 at about 07:30 a.m., near Raiwala, District Dehradun, Uttranchal, within the jurisdiction of PS Raiwala. In connection with this accident, a police report vide DD No.25, dated 12.06.2011 was also lodged at PS Raiwala and the inquiry officer concluded that the accident had taken place because of no one's fault as an old tree was uprooted due to storm and excessive rain and fell on the tempo traveller (Force Mini Bus) bearing __________________________________________________________________________________________ MACP No.195/16; Shilpa Samanta & Anr. Vs. Anand Singh & Ors;
MACP No.196/16; Shilpa Samanta & Anr. Vs. Anand Singh & Ors; Page 2 of 16registration no. DL1VA6076 (in short offending vehicle), resulting into death of 4 persons and injury to 3 others. In view of above, petitioners claimed compensation of Rs. One Crore in each matter.
3. On service of notice, all the respondents marked appearance. However, respondent no.1 and 2 i.e. driver and owner of the offending vehicle failed to file written statement and their right to file written statement was closed. Further, respondent no.3/ insurer filed written statement mentioning that fatal injuries sustained by deceased were caused due to natural calamity i.e. fall of tree and therefore, insurer is not liable to pay compensation.
4. On the basis of pleadings, following issues were framed on 26.09.2014 and 05.12.2014: In MACP No. 195/16 :
i). Whether deceased Smt. Pampa Samanta suffered fatal injuries in a road accident on 12.06.2011 involving vehicle i.e. Mini Bus bearing registration no. DL1VA6076 driven by respondent no.1 in 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.
In MACP No. 196/16 :
i). Whether deceased Sh.. Dibyendu Samanta suffered __________________________________________________________________________________________ MACP No.195/16; Shilpa Samanta & Anr. Vs. Anand Singh & Ors;MACP No.196/16; Shilpa Samanta & Anr. Vs. Anand Singh & Ors; Page 3 of 16
fatal injuries in a road accident on 12.06.2011 involving vehicle bearing registration no. DL1VA6076 driven by respondent no.1 in rash and negligent manner? (OPP)
(ii) and (iii) (issues are common as above).
5. Petitioners examined two witnesses in each case to establish their claim.
5.1 Petitioner No.1, Shilpa Samanta deposed separately as PW1 in both the claim cases being eyewitness of the accident. She deposed about the manner of accident and relied upon her aadhaar card Ex.PW1/1; birth certificate of petitioner no.2 Ex.PW1/2; ration card Ex.PW1/3; election identity card of her deceased father Ex.PW1/4; criminal case record Ex.PW1/5; postmortem report and death certificate of her deceased father Ex.PW1/6 and Ex.PW1/7 respectively; ITRs filed by her deceased mother Mark X. 5.2 In MACP No.196/16, PW2, Sh. Mukesh Ranjan, Tax Assistant, Income Tax Office, produced the ITRs filed by deceased father of petitioners Ex.PW2/A, showing his gross annual income as Rs.5,49,410/ for the year 201011. In MACP No.195/16, PW2, Sh. Kamlesh Kumar, Inspector, Income Tax Office, produced the ITRs of deceased mother of petitioners Ex.PW2/A, showing her gross annual income as Rs.3,37,273/ for the year 201011.
__________________________________________________________________________________________ MACP No.195/16; Shilpa Samanta & Anr. Vs. Anand Singh & Ors;
MACP No.196/16; Shilpa Samanta & Anr. Vs. Anand Singh & Ors; Page 4 of 166. The respondent side did not lead evidence.
7. I have heard Sh. Munish Kumar Sharma, Ld. Counsel for petitioners and Sh. S.C. Sharma, Ld. Counsel for respondent no.3/ insurer. Respondent no.1 and 2 did not appear to make final submissions. Record of the case has also been perused.
ISSUE No.1 :
8. In an action founded on the principle of fault liability, the proof of rash and negligent driving of the offending vehicle is sine qua non. However, the standard of proof is not as strict as applied in criminal cases and evidence is tested on the touchstone of principle of preponderance of probabilities.
9. The sole eyewitness Shilpa Samanta (PW1) mentioned that she along with her deceased parents, Dipesh Samanta, Pradeep Manna and other family members were going to pilgrimage to Kedarnath in a tempo traveller bearing registration no. DL1VA 6067 being driven by respondent no.1. She further stated that on the way, the weather got very bad and thunderstorm came and it started raining very heavily and further all the occupants of the vehicle got terrified and they requested respondent no.1 not to drive in such rough weather conditions. She further stated that she along with other occupants requested respondent no.1 to park the vehicle under some shelter as the visibility was almost zero but respondent no.1 __________________________________________________________________________________________ MACP No.195/16; Shilpa Samanta & Anr. Vs. Anand Singh & Ors;
MACP No.196/16; Shilpa Samanta & Anr. Vs. Anand Singh & Ors; Page 5 of 16remained adamant and insisted to continue the journey on the pretext that he would get late due to stoppage. It is mentioned that respondent no.1 continued to drive the vehicle at high speed and negligently and suddenly a huge tree got uprooted due to thunderstorm and rains and fell on the front side roof of the mini bus, as a result of that Debyendu Samanta, Smt. Pampa Samanta, Dipesh Samanta, Pradeep Manna, who were sitting toward the front side of the bus, got crushed inside the bus and died at the spot and other passengers including her got severely injured. The respondent no.1 and 2 did not contest the case and thus, PW1 was not crossexamined by them. During cross examination conducted by the counsel for insurer, PW1 mentioned that they had not made any complaint in writing to any authority regarding rash and negligent driving of vehicle by respondent no.1.
10. Ld. Counsel for insurer pleaded that the accident was the result of natural calamity and the deceased died due to an act of God and therefore, no fault can be attributed to respondent no.1 and in that case, the insurance company is not liable to pay any compensation. In support of his contention, reliance was placed on the following decisions :
i). Minu B. Mehta & Anr. vs. Balkrishna Ramchandra Nayan & Anr., (1977) 2 SCC 441.
__________________________________________________________________________________________ MACP No.195/16; Shilpa Samanta & Anr. Vs. Anand Singh & Ors;
MACP No.196/16; Shilpa Samanta & Anr. Vs. Anand Singh & Ors; Page 6 of 16ii). The Oriental Insurance Co. Ltd. vs. Meena Variyal & Ors., (2007) 5 SCC 428.
iii). Oriental Insurance Co. Ltd. vs. Premlata Shukla & Ors. (2007) ACJ 1928.
iv). Lachoo Ram & Anr. vs. Himachal Road Transport Corporation, (2014) 13 SCC 254.
v). Surender Kumar Arora & Anr. vs. Manoj Bisla & Ors., (2012) 4 SCC 552.
11. It is not disputed that the accident had happened because of uprooting of a heavy tree and its fall on the bus on account of thunderstorm and heavy rains. The police inquiry officer has also confirmed about said weather conditions in his report Ex.PW1/6. The petitioner no.1 (PW1) has deposed that all the occupants had requested the driver to stop the vehicle and not to drive it in aforesaid bad weather conditions but he continued driving. Even though ld. Counsel for insurer has rightly pointed out that no such allegation was levelled by the victims at any point of time prior to filing of these cases but that in itself is no reason to disbelieve the version of PW1. Even if it is considered that no occupant of the bus requested the driver not to drive in rough weather conditions, the driver, being in control of the vehicle and having the responsibility of safe driving, was required to stop the vehicle at some safe place and to wait for change in weather conditions and to continue the journey only when the driving condition became normal and safe. No material __________________________________________________________________________________________ MACP No.195/16; Shilpa Samanta & Anr. Vs. Anand Singh & Ors;
MACP No.196/16; Shilpa Samanta & Anr. Vs. Anand Singh & Ors; Page 7 of 16has been placed on record on behalf of respondents to rebut the deposition of petitioner that it was not safe to drive the vehicle and the visibility was almost zero. It is pertinent to mention here that the accident had taken place in the morning, just after dawn, when the visibility is not very clear and moreover, the visibility must have been reduced considerably on account of thunderstorm and excessive rain. Further, there is no material on record to show that the respondent no.1 could even notice the fall of tree, as in that case, he could have taken sharp turn or applied emergency brakes to avoid the accident. The respondent no.1 was the best person to explain the circumstances resulting into accident, however, neither he opted to contest the case nor the insurance company examined him as a witness. In view of this, it is established that respondent no.1 continued driving the vehicle in unsafe weather conditions and that is certainly one of the big factors for causing accident. Further, it is found that none of the case laws cited by Ld. Counsel for insurer is applicable on the peculiar facts of this case. On the other hand, the judgment of Division Bench of M.P. High Court given in the case titled as Shamma & Ors. vs. Kartar Singh & Ors., 2008 ACJ 892, squarely covers the facts of this case.
12. The death of parents of petitioners in the said accident is not in dispute. The postmortem reports of deceased Ex.PW1/6 __________________________________________________________________________________________ MACP No.195/16; Shilpa Samanta & Anr. Vs. Anand Singh & Ors;
MACP No.196/16; Shilpa Samanta & Anr. Vs. Anand Singh & Ors; Page 8 of 16and Ex.PW1/7 make it clear that their death was caused as a result of antemortem head injury.
13. In view of this Court, aforesaid material is found sufficient to establish that the accident had occurred due to rash and negligent driving of respondent no.1 resulting into death of Smt. Pampa Samanta and Dibyendu Samanta, parents of petitioners. Therefore, issue no.1 is decided in favour of the petitioners.
ISSUE NO. 2 :
14. Section 168 of the Act enjoins the Claims Tribunal to hold an inquiry into the claim to make an award determining the amount of compensation which appears to be just and reasonable. It has to be borne in mind that the compensation is not expected to be a windfall or a bonanza nor it should be pittance. (MACP No. 195/16, in the case of death of Smt. Pampa Samanta) ASSESSMENT OF INCOME OF THE DECEASED:
15. Petitioner no.1 (PW1) has mentioned that her deceased mother was engaged in the retail business of jewellery along with her father and was income tax payee. Further, she mentioned that her deceased mother was earning Rs.50,000/ per month. PW2 from Income Tax Office proved the ITRs Ex.PW2/A, filed by deceased and mentioned that her total gross income for the __________________________________________________________________________________________ MACP No.195/16; Shilpa Samanta & Anr. Vs. Anand Singh & Ors;
MACP No.196/16; Shilpa Samanta & Anr. Vs. Anand Singh & Ors; Page 9 of 16assessment year 201011 was Rs.3,37,273/ and she paid a tax of Rs.13,733/. Accordingly, the annual income of deceased is taken as Rs.3,23,540/ (3,37,27313,733).
DEDUCTION TOWARDS PERSONAL LIVING EXPENSES:
16. The deceased was survived by her two children. Therefore, 1/3rd of the income has to deducted towards personal living expenses of the deceased.
APPLICATION OF MULTIPLIER:
17. The copy of ration card Ex.PW1/3 shows the year of birth of deceased Smt. Pampa Samanta as 1968 whereas her election identity card Ex.PW1/4 shows her age as 30 years on 01.01.2002. Thus, as per ration card, she was aged 43 years and as per election identity card, her age comes to 39 years on the date of accident i.e. on 12.06.2011. Since the discrepancy in the age of deceased according to said two government documents has not been clarified, the age of deceased on higher side, has to be considered. Accordingly, her age is taken as 43 years on the date of accident i.e. 12.06.2011. Therefore, multiplier of 14, as applicable to age group between 4145 years, would be applicable. FUTURE PROSPECTS:
18. The deceased was engaged in the business being run by herself and her husband and therefore, she can be said to be having permanent job. Following the decision of a Constitution __________________________________________________________________________________________ MACP No.195/16; Shilpa Samanta & Anr. Vs. Anand Singh & Ors;MACP No.196/16; Shilpa Samanta & Anr. Vs. Anand Singh & Ors; Page 10 of 16
Bench of the Supreme Court in the case, National Insurance Company Ltd. Vs. Pranay Sethi and Ors. (AIR 2017 SC 5157), an addition of income of deceased to the extent of 30% has to be considered.
LOSS OF DEPENDENCY:
19. Applying the multiplier of 14, after making deduction of 1/3rd from the income of the deceased and addition of 30% of future prospects, the loss of dependency is computed as Rs.39,25,619/ (3,23,540x130/100x2/3x14). NONPECUNIARY DAMAGES:
20. In view of Pranay Sethi (supra), Rs. 40,000/, 15,000/ and Rs.15,000/ respectively are awarded on account of loss of consortium, loss of estate and funeral expenses and thus a total sum of Rs.70,000/ is granted under this head.
21. In view of this, petitioners shall be entitled for total compensation of Rs.39,95,619/ (Rs.39,25,619 +70,000).
(MACP No. 196/16, in case of death of Dibyendu Samanta) ASSESSMENT OF INCOME OF THE DECEASED:
22. Petitioner no.1 (PW1) has mentioned that her deceased father was engaged in the retail business of jewellery and was income tax payee. Further, she mentioned that her deceased father was earning Rs.50,000/ per month. PW2 from Income Tax Office proved the ITRs Ex.PW2/A, filed by deceased and __________________________________________________________________________________________ MACP No.195/16; Shilpa Samanta & Anr. Vs. Anand Singh & Ors;MACP No.196/16; Shilpa Samanta & Anr. Vs. Anand Singh & Ors; Page 11 of 16
mentioned that his total gross income for the assessment year 201011 was Rs.5,49,410/ and he paid a tax of Rs.50,931/. Accordingly, the annual income of deceased is taken as Rs.4,98,479/ (5,49,41050,931).
DEDUCTION TOWARDS PERSONAL LIVING EXPENSES:
23. The deceased was survived by his two children.
Therefore, 1/3rd of the income has to deducted towards personal living expenses of the deceased.
APPLICATION OF MULTIPLIER:
24. The copy of ration card Ex.PW1/3 shows the year of birth of deceased Dibyendu Samanta as 1968 whereas his election identity card Ex.PW1/4 shows his age as 35 years on 01.01.2002. Thus, the age of deceased comes to be 4344 years.
Therefore, multiplier of 14, as applicable to age group between 4145 years, would be applicable.
FUTURE PROSPECTS:
25. The deceased was engaged in the business being run by himself and his wife and therefore, he can be said to be having permanent job. Following the decision of a Constitution Bench of the Supreme Court in the case, National Insurance Company Ltd. Vs. Pranay Sethi and Ors. (AIR 2017 SC 5157), an addition of income of deceased to the extent of 30% has to be considered.
__________________________________________________________________________________________ MACP No.195/16; Shilpa Samanta & Anr. Vs. Anand Singh & Ors;
MACP No.196/16; Shilpa Samanta & Anr. Vs. Anand Singh & Ors; Page 12 of 16LOSS OF DEPENDENCY:
26. Applying the multiplier of 14, after making deduction of 1/3rd from the income of the deceased and addition of 30% of future prospects, the loss of dependency is computed as Rs.60,48,212/ (4,98,479/x130/100x2/3x14). NONPECUNIARY DAMAGES:
27. In view of Pranay Sethi (supra), Rs. 40,000/, 15,000/ and Rs.15,000/ respectively are awarded on account of loss of consortium, loss of estate and funeral expenses and thus a total sum of Rs.70,000/ is granted under this head.
28. In view of this, petitioners shall be entitled for total compensation of Rs.61,18,212/ (Rs.60,48,212 +70,000).
ISSUE NO. 2:
29. The petitioners have conducted the proceedings in these cases diligently except for the period, for which the case was closed/ adjourned sinedie. As per record, the proceedings were closed on 14.12.2016 and thereafter, it revived vide order dated 08.08.2019. Thus, no interest would be granted for the period from 14.12.2016 to 08.08.2019. Accordingly, petitioners are entitled for interest @ 9% per annum on the aforesaid respective award amount from the date of filing of the petitions till realization except for the period from 14.12.2016 to 08.08.2019.
__________________________________________________________________________________________ MACP No.195/16; Shilpa Samanta & Anr. Vs. Anand Singh & Ors;
MACP No.196/16; Shilpa Samanta & Anr. Vs. Anand Singh & Ors; Page 13 of 16(Refer: "Oriental Insurance Company Ltd. Vs. Sangeeta Devi & Ors, MAC. APP. 165/2011 decided on 22.02.2016).
RELIEF:
(MACP No. 195/16, in the case of death of Smt. Pampa Samanta)
30. The petitioners are awarded compensation in the sum of Rs.39,96,000/ (rounded off from Rs.39,95,619/) alongwith interest @ 9% per annum from the date of filing of the petition till realization except for the period from 14.12.2016 to 08.08.2019. (MACP No. 196/16, in case of death of Dibyendu Samanta)
31. The petitioners are awarded compensation in the sum of Rs.61,18,000/ (rounded off from Rs.61,18,212/) alongwith interest @ 9% per annum fromfrom the date of filing of the petition till realization except for the period from 14.12.2016 to 08.08.2019.
32. The insurance company/respondent no.3 shall deposit the award amount with the Tribunal within 30 days.
APPORTIONMENT AND MODE OF DISBURSAL (in MACP No. 195/16)
33. The petitioner no.1 (daughter of deceased) and petitioner no.2 (minor son of deceased) shall be entitled to the award amount in the ratio of 50:50.
34. Further, an amount of Rs.1,98,000/, out of __________________________________________________________________________________________ MACP No.195/16; Shilpa Samanta & Anr. Vs. Anand Singh & Ors;
MACP No.196/16; Shilpa Samanta & Anr. Vs. Anand Singh & Ors; Page 14 of 16Rs.19,98,000/ (50% of the award amount) will be released to each of the petitioner no.1 Shilpa Samanta and petitioner no.2. Shuvham Samanta and balance amount of Rs.18 lakhs each and interest will be secured in the form of fixed deposits, as per following schedule :
Sl No. Amount Period of FDR
1 Rs. 2,00,000/ 01 year
2. Rs. 2,00,000/ 02 years
3 Rs. 2,00,000/ 03 year
4. Rs. 2,00,000/ 04 years
5. Rs. 2,00,000/ 05 years
6. Rs. 2,00,000/ 06 years
7. Rs. 2,00,000/ 07 years
8. Rs. 2,00,000/ 08 years
9. Rs. 2,00,000/ 09 years
10. Interest component 10 years
APPORTIONMENT AND MODE OF DISBURSAL
(in MACP No. 196/16)
35. The petitioner no.1 and petitioner no.2 shall be entitled to the award amount in the ratio of 50:50
36. Further, an amount of Rs.2,59,000/, out of Rs.30,59,000/ (50% of the award amount) will be released to each of the petitioner no.1 Shilpa Samanta and petitioner no.2. Shuvham Samanta and balance amount of Rs.28 lakhs each and interest will be secured in the form of fixed deposits, as per __________________________________________________________________________________________ MACP No.195/16; Shilpa Samanta & Anr. Vs. Anand Singh & Ors;
MACP No.196/16; Shilpa Samanta & Anr. Vs. Anand Singh & Ors; Page 15 of 16following schedule :
Sl No. Amount Period of FDR
1 Rs. 2,00,000/ 01 year
2. Rs. 2,00,000/ 02 years
3 Rs. 2,00,000/ 03 year
4. Rs. 2,00,000/ 04 years
5. Rs. 2,00,000/ 05 years
6. Rs. 2,00,000/ 06 years
7. Rs. 2,00,000/ 07 years
8. Rs. 2,00,000/ 08 years
9. Rs. 2,00,000/ 09 years
10. Rs. 2,00,000/ 10 years
11. Rs. 2,00,000/ 11 years
12. Rs. 2,00,000/ 12 years
13. Rs. 2,00,000/ 13 years
14. Rs. 2,00,000/ 14 years
15. Half of the interest component 15 years
16. Half of the interest component 16 years
37. Copy of award be supplied to both the parties for compliance, free of costs.
38. Form IVA (in each case) in terms of MCTAP are annexed herewith as Annexure A and B. VIVEK KUMAR Digitally signed by VIVEK KUMAR GULIA Location: East District, Karkardooma Courts, Delhi GULIA Date: 2020.02.01 16:41:57 +0530 Announced in the open (Vivek Kumar Gulia) Court on 31.01.2020 Presiding OfficerMACT (East) (Total 16 pages) Karkardooma Courts, Delhi __________________________________________________________________________________________ MACP No.195/16; Shilpa Samanta & Anr. Vs. Anand Singh & Ors;
MACP No.196/16; Shilpa Samanta & Anr. Vs. Anand Singh & Ors; Page 16 of 16