Delhi District Court
Smt. Sonwati vs Up State Road Transport Corporation on 24 September, 2011
1
IN THE COURT OF MS.POONAM CHAUDHARY
JUDGE:MOTOR ACCIDENT CLAIMS TRIBUNAL 1 NEW DELHI
SUIT NO.: 549/11
DATE OF INSTITUTION: 27.11.2008
Unique ID No. 02403C0975902008
1. Smt. Sonwati
W/o Late Sh. Ram Pal
2. Sonu Singh
S/o Late Sh. Ram Pal
3. Ms. Monika
D/o Late Sh. Ram Pal
4. Ms. Barkha
D/o Late Sh. Ram Pal
5. Suraj Bhan
S/o Late Sh. Ram Pal
6. Smt. Ram Kumari
W/o Sh. Hosh Ram ............Petitioners
(Petitioners no. 4 and 5 are minor children through
mother and natural guardian petitioner no. 1 Smt. Sonwati)
All R/o.
House NO. 235, Aya Nagar Pahari,
Ambedkar Colony, Mehrauli, New Delhi.
VERSUS
1. UP State Road Transport Corporation
(owner of the bus no. UP78AN6774)
Through Depot Manager, Unnao Depot(U. P.)
2. UP State Road Transport Corporation
(owner of the bus no. UP78AN6774)
Through Its Assistant Regional Manager,
2
Mahatma Gandhi Marg, Lal Kothi,
Luckhnow(U. P.)
3. Din Mohammad (Driver of the truck no. UP13Q9014)
S/o Sh. Subrati
R/o Chaudharywara, Sikandrabad, Bulandshahar, UP.
4. Sh. Fazlu (Owner of the truck no. UP13Q9014)
S/o Sh. Abdul Salam
R/o Mohalla Bakar Kassaban, Sikandrabad,
Disst. Bulandshahar (U. P.)
5. ICICI Lombard General Insurance Company Ltd.
Birla Tower, 5 Floor,
th
25 Barakhamba Road, New Delhi.
th
....... Respondents
Final Arguments heard on : 17.09.2011 Award reserved for : 24.09.2011 Date of Award : 24.09.2011 AWARD
1. Vide this judgment cum award I proceed to decide the petition U/s 140 & 166 of Motor Vehicle Act, 1988, as amended up to date (hereinafter referred to as the Act) filed by the petitioners, for grant of compensation in a road accident.
2. Briefly stated the facts giving rise to the petition are that on 09.03.2008 at about 3.00 AM the deceased Ram Pal was going from Delhi to Bagermow in a bus bearing no. UP78AN6774 being driven at a high speed rashly and negligently and when the bus reached at G. T. Road, Dashrathpur Mor a truck bearing no. UP13Q9014 came from the 3 opposite direction being at a high speed and struck against the above said bus. It is also stated that both the vehicles were being driven rashly and negligently. It is further stated that as a result of the accident driver of the bus and deceased received fatal injuries and died at the spot. It is also stated that many other passengers were also grievously injured.
3. It is further averred that the deceased was about 42 years of age at the time of accident earning Rs. 15,000/ per month and used to contribute his entire income for the household expenses. It is also stated that the deceased would have to lived upto 90 years had he not died in the accident.
4. It is prayed that Rs. 30,00,000/(Thirty lacs) be awarded as compensation and interim award be also passed U/s 140 of the Act in favour of the petitioners against the respondents with interest from the date of filing of petition till its realisation as well as cost of petition.
5. Respondents no. 1 and 2/ UP State Road and Transport Corporation contested the petition on various grounds interalia that the petitioners did not have any cause of action as there was no negligence on the part of the driver of the bus or was also alleged that petitoners had no locusstandi as they were not the legal representative of the deceased. It was further alleged that the driver of the bus no. UP78AN6774 was 4 going from the Delhi to G. T.Road and was driving at the correct side and at a normal speed but the truck bearing no. UP13Q9014 came from the opposite direction being driven rashly and negligently dashed against the bus from the wrong side causing injuries to the passengers of bus as such accident was occurred due to the rash and negligent driving of the truck driver. The averments regarding the age and income of the deceased were denied. It was also denied that respondents no. 1 and 2 were liable.
6. Respondent no. 3 the driver of the truck also contested the petition on various grounds interalia that the petition was bad for misjoinder of parties. It was denied that respondent no. 3 was driving the truck no. UP13Q9014 at a high speed in a rash and negligent manner and caused the accident. It was further stated that the alleged offending vehicle was insured with respondent no. 5, thus the liability , if any is of respondent no. 5 to indemnify the insured. The averments regarding the age, income of deceased were also denied. It was denied that respondent no. 3 was liable.
7. Respondent no. 4 the owner of the truck also contested the petition on the various grounds that the petition was bad for misjoinder of parties. The factum of the acciden and involvement of the vehicle bearing no. UP13Q9014 in the accident was denied. It was however stated that 5 respondent no. 4 was the owner of the truck in question and the vehicle was insured with respondent no. 5. It was alleged that the liability, if any is of respondent no. 5.
8. Respondent no. 5 the insurer of the truck also contested the petition on the various grounds interalia that the liability of respondent no. 5 was as per the terms and conditions of the policy. It was further stated that the cover note no. PCVE4863999 was never issued by respondent no. 5 and no premium was received by respondent no. 5 under the said cover note. Thus, vehicle no. UP13Q9014 was not insured with respondent no. 5 under the said cover note and respondent no. 5 was not liable. The factum of the accident was admitted. However, it was also denied that the accident was caused due to the rash and negligent driving of the driver of vehicles no. UP78AN6774. It was further alleged that the accident was infact caused due to the negligence of driver of bus no. UP78AN6774 who was not holding a valid and effective driving licence at the time of alleged accident. It was denied that respondent no. 5 was jointly and severally liable.
9. On the pleadings of the parties, the following issues were framed:
1. Whether the husband of petitioner no. 1 father of petitioner no. 2 to 5 and son of the petitioner no. 6 sustained fatal injuries in the road accident on 09.03.2008 at about 3.00 AM by the vehicle no. UP13Q9014 was being driven by 6 respondent no. 3 Deen Mohd. in a rash and negligent manner insured with respondent no. 5? OPP.
2. Whether the death has been caused because of head and collusion of vehicle no. UP13Q9014 (Truck) with UP Roadways Transport bus no. UP78AN6774? OPP
3. Whether the petitioners are entitled for compensation? If so, to what amount and from whom?OPP.
4.Relief.
10. In support of their claim the petitioners examined PW1, the wife of deceased Smt. Somwati as PW1. She tendered her evidence in examination in chief by affidavit reiterating therein the contents of the petition. She stated that her father in law had since expired. She further proved the Identity card of the deceased and certified copies of the criminal record Ex. PW1/2(collectively) i.e. complaint lodged by the conductor of the bus, site plan, charge sheet filed against respondent no. 3 U/s 279/338/304A/427 IPC, mechanical inspection report of the bus no. UP78AN6774 and the offending vehicle no. UP13Q9014, the postmortem report of the deceased.
11.In her crossexamination she stated that she had not filed any documentary proof to show that her fatherinlaw had predeceased her husband. She also stated that she has not filed any documentary 7 proof to show that the deceased was earning Rs. 15,000/ per month and was working as a Mali in MCD. She denied that Ex. PW1/A was a procured document to claim compensation. He stated that her son Sonu was earning Rs. 3,500/ per month and her daughter Monika was 20 years old and was a student. Her daughter Barkha was 18 years and was a student. She also stated that she had applied for service on compassionate grounds. She also stated that she was not an eye witness to the accident.
12.The petitioners also examined PW2 Sh. Om Prakash, the eye witness to the accident. He stated that on 09.03.2008 at about 3.00 AM he was going from Delhi to Una UP in a bus bearing no. UP78AN6774 and when the bus reached at G. T. Road, Dashrathpur Mor a truck bearing no. UP13Q9014 came from the opposite direction/wrong side and struck against the bus. He also stated that the driver of the bus and one passenger died whereas he received minor injuries. He also deposed that he could identify the passenger who died as he was from his village. He further stated that the police came to the spot after half an hour. In his crossexamination he stated that the deceased was known to him as they belong to the same village. He also stated that he was working as gardener in Venketeshwar International School, Dwarka and he daily come for his village. He also stated that he had 8 not filed any claim petition as he had sustained minor injuries. He further stated that he remained at the spot for half an hour till the police came and the police put up him in an another bus. He denied that he was deposing falsely and was not present at the time of accident. He also testified that the offending vehicle was coming at a high speed.
13.Petitioners also examined Sh. Nanak Chand, Assistant Director, Horticulture MCD,South Zone, New Delhi who proved the salary certificate of the deceased Ex. PW3/A and salary bill register Ex. PW3/B. He further deposed that as per their record the date of birth of deceased was 14.12.1965 and the gross salary of the deceased was Rs. 9,175/ in February, 2008. The petitioners thereafter closed their evidence.
14.On the other hand respondents did not lead evidence. Accordingly RE was closed.
ISSUE NO. 1
15. As the petition has been filed U/s 166 Motor Vehicle Act it was incumbent upon the petitioners to prove that the accident was caused by the rash and negligent driving of the driver of the offending vehicle. In this regard the petitioners examined eye witness PW2 who stated that the accident was caused due to the rash and negligent driving of the truck bearing no. UP13Q9014 which came from wrong side and 9 struck against the bus bearing no. UP78AN6774 as a result of which the driver of the bus and one passenger died at the spot and he sustained minor injuries. He identified the passenger Ram Lal as they were from the same native village.
16.The contention of the Ld. counsel for respondents is that the PW2 was a planted witness and had he been injured he would have filed a claim. It was further argued that PW2 stated in his crossexamination that he had not filed claim petition. However, the said contention of Ld. counsel for respondent hold ground as PW2 clarified the said fact and stated that he had sustained minor injuries.
17. The petitioners also proved the criminal record i.e, the charge sheet filed after completion of investigation against respondent no. 1, mechanical inspection reports of the offending vehicles and the bus and postmortem report of the deceased according to the same death was due to comma as a result of antemortem head injuries, FIR lodged on the statement of the conductor of the bus no. UP78AN6774.
18. To determine the negligence it has been held in 2009 ACJ 289 National Insurance Ltd. Vs. Pushpa Rana and Ors as follows:
"Negligence evidence admissibility of 10 document certified copy of criminal court, such as FIR recovery memo and mechanical inspection report of vehicle are documents of sufficient prove to reach the conclusion that driver was negligent. Proceedings under Motor Vehicles Act are not akin to proceedings in a civil and hence strict rules of evidence are not required to be followed in this regard".
19. In view of the the testimony of the eye witness PW2, the accident was caused when the truck coming from the wrong side struck against the bus. The certified copies of the criminal record and testimony of the eye witness are sufficient proof to reach the conclusion that the accident was caused due to the rash and negligent driving of vehicle no. UP13Q9014 by its driver. Issue no.1 is accordingly decided in favour of the petitioners and against the respondents. ISSUE NO. 2
20. As issue no. 1 has been decided in favour of the petitioner they are entitled to compensation. PW1 has stated that the deceased was working a Mali in MCD and drawing salary of Rs. 15,000/ per month. She proved the Identity card of the deceased. Petitioners also examined PW3 Sh. Nanak Chand, Assistant Director, Horticulture MCD,South Zone, New Delhi who proved the salary certificate of the deceased Ex. PW3/A and salary bill register Ex. PW3/B. According to 11 the salary certificate the gross salary of the deceased was Rs. 9,175/ per month. Thus, I hold that the deceased was earning Rs. 9,175/ at the time of his death. According to the service record of the deceased his date of birth was 14.12.1965, thus on the date of accident the deceased was around 43 years of age at the time of accident.
21. The respondents did not challenge the testimony of PW1 as regards the fact that the petitioners were the legal heirs of the deceased. I thus hold that petitioners are the legal heirs of the deceased.
22.The Hon'ble Supreme Court in the judgment of Sarla Verma Vs DTC 2009(6) SCC 121 has settled the principles relating to "addition in income" towards future prospects and held that wherever, the age of deceased was between 40 to 50 years and he had a permanent job, actual salary (less tax) should be increased by 30% towards future prospects, to arrive at the monthly income. In the present case the deceased had a permanent job and was around 43 years of age at the time of accident, thus 30% is added towards future prospects. After addition of 30% the income of the deceased would have been(Rs. 9,175 + 30% of 9,175/) = 11927.3/ (rounded as of Rs. 11930/).
23.In view of the judgment of Sarla Verma Vs DTC 2009(6) SCC 121, as deceased was survived by 6 dependents 1/4 is to be deducted towards the personal expenses of deceased. After deduction of 1/4 out of Rs. 12 11930/ the contribution of the deceased to his family would have been Rs. 8,947.5/(rounded as of Rs. 8,950/). As the deceased was around 43 years of age, thus, the multiplier applicable in view of the above said judgment is 14. The total loss of dependency comes to Rs. 8,950/ x 12 x 14 = 15,03,600/. I also award Rs. 20,000/ each towards loss of love and affection, loss of estate and funeral expenses and loss of consortium.
The total compensation is determined as under:
Loss of dependency : Rs. 15,03,600/
Funeral Expenses : Rs. 20,000/
Loss of consortium : Rs. 20,000/
Loss of estate : Rs. 20,000/
TOTAL : Rs. 15,63,600/
RELIEF:
24. I thus award a sum of Rs. 15,63,600/ (Rupees Fifteen Lacs Sixty Three Thousand Six Hundred Only) as compensation with interest at the rate of 7.5% per annum including interim award from the date of filing the petition till its realisation, in favour of the petitioners against the respondents. Petitioner no. 1 shall have a share of 50% in the awarded amount whereas the other petitioners will have a share of 10% each.
25. For safeguarding the compensation amount from being frittered away 13 by the beneficiaries, it has been held in G.M Kerala State Road Transport Corporation v/s S.Susamma Thomas (1994) 2 SCC 176 as follows:
"in a case of compensation for death it is appropriate that the Tribunals do keep in mind the principles enunciated by this court in Union Carbide Corporation v. Union of India, 1991 (4) SCC 584, in the matter of appropriate investments to safeguard the feed from being frittered away by the beneficiaries owing to ignorance, illiteracy and susceptible to exploitation. In that case approving the judgment of the Gujarat High Court in Muljibhai Ajaarambhai harijan V/s United India Insurance Co. Ltd. 1983 ACJ 57 (Gujarat), this court offered the following guidelines:
"(i) The Claims Tribunal should, in the case of minors, invariably order the amount of compensation awarded to the minor invested in long term fixed deposits at least till the date of the minor attaining majority. The expenses incurred by the guardian or next friend may, however, be allowed to be withdrawn;
26. Following the above judgment, out of the awarded amount 10% of share of petitioner no. 1 be released to her and the remaining amount shall be kept in FDR in her name in a nationalized bank for the period 14 of 10 years. The entire share of petitioners no. 2, 3 and 4 be kept in FDR for 10 years, entire share of petitioner no. 5 be kept in FDR in a nationalized bank till he attains majority and for 5 years thereafter. The entire share of petitioner no. 6 be released to her. Interest to be paid quarterly/monthly. No advance or loan shall be allowed against the FDR without permission of the court.
27. Nazir to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself. Copy of the order be given to respondent No.5 for compliance. The petitioner shall file two sets of photographs along with their specimen signatures, out of which one set to be sent to the Nodal Officer, UCO Bank, Patiala House Court Branch along with copy of the award by Nazir and the second set be retained to the court for further reference. The photographs be stamped and sent to the bank. The petitioner will also file the proof of residence and furnish the details of the bank account with the Nazir within a week.
APPORTIONMENT OF LIABILITY:
28. As respondents did not lead evidence inspite of opportunity granted accordingly RE was closed. Thus, all the respondents are jointly and severally liable. Respondent no. 5 being the insurer of the offending 15 vehicle is directed to deposit the award amount within a period of 30 days in UCO Bank, Patiala House Court Branch. In case of any delay, it shall be liable to pay interest at the rate of 12% per annum for the period of delay. The petitioners to approach the UCO Bank, Patiala House court Branch for opening the account. The claimants can operate the saving account from the nearest branch of UCO Bank. On the request of claimants the bank shall provide the said facility.
An attested copy of the award be given to the parties. File be consigned to Record Room.
Announced in the open court.
On 24.09.2011 (POONAM CHAUDHARY)
JUDGE MACT1 : NEW DELHI