Delhi District Court
Smt. Sushila Pandey vs Ms. Pooja Mehta on 21 July, 2014
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IN THE COURT OF SH.HARISH DUDANI
JUDGE:MOTOR ACCIDENT CLAIMS TRIBUNAL 1 NEW DELHI
SUIT NO.244/13
DATE OF INSTITUTION:02.07.2013
1. Smt. Sushila Pandey
W/o Sh. Anupam Kumar Pandey
2. Sh. Anupam Kumar Pandey
S/o Sh. Dev Saran Pandey
Both R/o RZ25B, BlockC
Patel Garden, Kakrola Mor,
Uttam Nagar, New Delhi. .........Petitioners
SUIT NO.245/13
DATE OF INSTITUTION:02.07.2013
1. Smt. Promila
W/o Sh. Vijay Kumar
2. Sh. Vijay Kumar
S/o Sh. Tuka Ram
Both R/o 19/2, First Floor,
Old Rajinder Nagar, New Delhi110060 .........Petitioners
Versus
1. Ms. Pooja Mehta
D/o Sh. Jethamal Mehta
6B/1, NEA, Old Rajinder Nagar, Delhi
2. M/s Pooja Finelease Ltd.
1696, Pratap Street, Chuna Mandi,
Paharganj, Delhi
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3. Reliance General Insurance Company Ltd.
Through its Manager
60, Okhla Industrial Estate
Okhla, New Delhi .............Respondents
Final Arguments heard on : 08.07.2014. Award reserved for : 21.07.2014. Date of Award : 21.07.2014. AWARD
1. Vide this judgment cum award I proceed to decide the petition filed U/s 166 and 140 of Motor Vehicle Act, 1988, as amended up to date (hereinafter referred to as the Act) for grant of compensation in a road accident.
2. Briefly stated the facts giving rise to the petitions are that on 21.4.2013 Sh. Vikesh Kumar(deceased in suit no.245/13), Sh. Rakesh Kumar Pandey (deceased in suit no. 244/13), Sh.Rohit Mehta and Ms.Preeti Vohra were travelling in car no.DL4CNE9499 which was being driven by respondent no.1 and at about 2.50AM they reached ahead of Modern Art Gallery, Gate No.1,India Gate Circle and the driver of the offending car lost control and struck the car against a tree on footpath and also against sign board of DTC due to which they sustained injuries and they were taken to RML hospital where Sh.Rakesh Kumar Pandey(deceased is suit no.244/13) and Sh.Vikesh Kumar(deceased in suit no.245/13) were 3 declared brought dead.
3. It is stated that Sh.Rakesh Kumar Pandey (deceased in suit no. 244/13) was 27 years of age at the time of accident and he was working as Manager with M/s Just Florist Pvt. Ltd. and was earning a sum of Rs. 35,000/ per month.
4. It is stated that Sh. Vikesh Kumar(deceased in suit no.245/13) was 25 years of age at the time of accident and he was self employed as Actor/Choreographer and was earning a sum of Rs.1,00,000/ per month. It is stated that the accident took place due to rash and negligent driving of the offending vehicle being driven by respondent no.1, owned by respondent no.2 and and insured with respondent no.3 and as such all the respondents are jointly and severally liable to pay compensation to the petitioners. It is prayed that a sum of Rs. Seventy Five Lacs each alongwith interest @ 12% per annum be awarded as compensation in favour of petitioners and against the respondents.
5. Respondent no.1 has filed written statement and has contested the petition on various grounds. It is stated that there is no cause of action against respondent no.1. It is denied that respondent no.1 is liable to pay compensation.
6. Respondent no.2 has filed written statement and has contested the petition on various grounds. It is stated that there is no cause of action 4 against respondent no.2. It is stated that the vehicle in question was insured with respondent no.3 vide policy no. 1305722311005021 valid for the period w.e.f. 30.08.2012 to 29.08.2013. It is denied that respondent no.2 is liable to pay compensation.
7. Respondent no. 3 has filed written statement and has contested the petition on various grounds. It is stated that the vehicle in question was insured with respondent no.3 vide policy no. 1305722311005021 valid for the period w.e.f. 30.08.2012 to 29.08.2013. The averments made on merits are denied. It is denied that respondent no.3 is liable to pay compensation.
8. Vide order dated 03.12.2013 both the petitions were consolidated for the purpose of trial and decision and from the pleadings of parties following issues were framed:
1. Whether the deceased Sh. Vikesh Kumar and Sh. Rakesh Kumar Pandey sustained injuries in the accident which occurred on 21.04.2013 at about 2.50 AM ahead of Modern Art Gallery, Gate No.1 on India Gate Circle, New Delhi caused by rash and negligent driving of vehicle no.DL4CNE9499 driven by respondent no.1, owned by respondent no.2 and insured with respondent no.3?
2.) Whether the petitioners are entitled for compensation? If so, to what amount and from whom?
3.)Relief.5
9. In support of their case Ms. Sushila Pandey(petitioner no.1 in suit no. 244/13) examined herself as PW1. PW1 tendered in evidence her affidavit Ex.PW1/A and proved the copy of appointment letter of deceased Ex. PW1/1, performance appraisal letter and pay slips for March and April 2013 Ex.PW1/2(colly), copy of All India Secondary School Examination Certificate Ex.PW1/3, copy of All India Senior School Certificate Ex.PW1/4, copy of provisional certificate of graduation Ex.PW1/5, copies of cultural and sports activities certificates Ex.PW1/6(colly), copy of election identity card of her son Ex.PW1/7, copy of passport of her son Ex.PW1/8, copy of Aadhar card of her husband Ex.PW1/9, copy of her Aadhar card and election identity card Ex.PW1/10(colly) and copy of ration card Ex.PW1/11.
10. Sh. Vijay Kumar(petitioner no.2 in suit no.245/13) examined himself as PW2. PW2 tendered in evidence his affidavit Ex.PW2/A and proved the copy of service agreement mark A(colly), copy of diploma issued by the Barry John Acting Studio Ex.PW2/1, profile of her son mark B, copies of letters dated 02.11.2009 and 11.11.20099 issued by Dance India Dance 2, Zee Network Ex.PW2/2(colly), copy of All India Secondary School Examination Ex. PW2/3, copy of All India Senior School Certificate Examination Ex. PW2/4, copies of marksheets of first year and second year of graduation Ex. PW2/5(colly), cultural activities certificates of his 6 son Ex.PW2/6(colly), copy of his election identity card Ex.PW2/7, copies of election identity card and Aadhar card of his wife Ex.PW2/8(colly) and copy of passport of his son Ex.PW2/9.
11.Petitioners in suit no.244/13 examined Sh Anand Kumar, Director of Just Florist Pvt. Ltd. as PW3 who stated that Sh. Rakesh Kumar Pandey had joined their organization on 01.01.2013 as Manager Operations and proved the copies of pay slips Ex. PW3/1(colly), copy of statement of account Ex.PW3/2(colly), copy of attendance register Ex. PW3/3(colly) and stated that the letters Ex. PW1/1 and Ex.PW1/2(colly) were issued by him and bears his signatures. Petitioners thereafter closed their evidence.
12.On the other hand respondents did not examine any witness and RE was closed.
13.I have heard the Ld. counsel for the parties and perused the record. My findings on specific issues are as follows.
ISSUE NO. 1
14.As the petition has been filed U/s 166 M.V Act it was incumbent upon the petitioners to prove that deceased sustained injuries in an accident caused due to rash and negligent driving of offending vehicle no.DL4CNE9499 by its driver.
15.To determine the negligence of driver of offending vehicle it has been held in National Insurance Company Ltd. V/s Pushpa Rana & 7 Another, 2009 ACJ 287 as follows:
"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 Company 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 FIR no. 955 of 2004, pertaining (ii) criminal record showing completion of investigation of police and issue of charge sheet under sections 279/304A , Indian Penal Code against the driver was lodged; (iii) certified copy of FIR wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of deceased. These documents are sufficient proofs to reach conclusion that the driver was negligent. Proceedings under the Motor Vehicle 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 for the appellant also falls face down. There is ample evidence on record to prove negligence on part of the driver."
16.The case of the petitioners is that on 21.4.2013 Sh. Vikesh Kumar(deceased in suit no.245/13), Sh. Rakesh Kumar Pandey (deceased in suit no. 244/13), Sh.Rohit Mehta and Ms.Preeti Vohra were travelling in car no.DL4CNE9499 which was being driven by respondent no.1 and at about 2.50AM they reached ahead of Modern Art Gallery, Gate No.1,India Gate Circle and the driver of the offending car lost control and struck the car against a tree on footpath and also against sign board of DTC due to which they sustained injuries and they were taken to RML 8 hospital where Sh.Rakesh Kumar Pandey(deceased is suit no.244/13) and Sh.Vikesh Kumar(deceased in suit no.245/13) were declared brought dead.It is stated that case vide FIR No.68/13, u/s 279/337/304AIPC was registered at PS Tilak Marg. Smt.Sushila Pandey (petitioner no.1 in suit no.244/13) appeared in the witness box as PW1 and adduced evidence by way of affidavit Ex.PW1/A. Sh.Vijay Kumar(petitioner no.2 in suit no. 245/13) appeared in the witness box as PW2 and adduced evidence by way of affidavit Ex.PW2/A. In the affidavits Ex.PW1/A and Ex.PW2/A, the petitioners have reiterated the manner of accident as stated in the claim petition. In their written statements, respondent no.1&2 have stated that respondent no.1 was not at fault in causing the accident. Although respondent no.1&2 have pleaded that accident did not take place due to negligence of respondent no.1 but in the cross examination of PW1&PW2 respondent no.1&2 have not preferred to put any question. In their cross examination by respondent no.3 PW1&PW2 stated that they are not the eye witnesses of the accident.
17.In National Insurance Company Ltd. v Gita Bindal, MAC App. No. 179/2004 the Hon'ble Delhi High Court has been pleased to hold:
12. The principle of res ipsa loquitur laid down in the aforesaid four judgments is summarized as under:
i. Res ipsa loquitur means that the accident speaks for itself. In such cases, it is sufficient for the plaintiff to prove 9 the accident and nothing more.
ii. Where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence in the absence of explanation by the defendants, that the accident arose from want of care. iii. There are two requirements to attract res ipsa loquitur,
(i) that the "thing" causing the damage be under the control of the defendant and (ii) that the accident must be such as would not in the ordinary course of things have happened without negligence.
iv. Res ipsa loquitur is an exception to the normal rule that mere happening of an accident is no evidence of negligence on the part of the driver. This maxim means the mere proof of accident raises the presumption of negligence unless rebutted by the wrongdoer.
v. In some cases considerable hardship is caused to the plaintiff as the true cause of the accident is not know to him, but is solely within the knowledge of the defendant who caused it, the plaintiff can prove the accident, but cannot prove how it happened to establish negligence. This hardship is to be avoided by applying the principle of res ipsa loquitur is that the accident speaks for itself or tells its own story. There are cases in which the accident speaks for 10 itself so that it is sufficient for the plaintiff to prove the accident and nothing more.
vi. The effect of doctrine of 'res ipsa loquitur' is to shift the onus to the defendant in the sense that the doctrine continues to operate unless the defendant calls credible evidence which explains how the accident or mishap may have occurred without negligence, and it seems that the operation of the rule is not displaced merely by expert evidence showing, theoretically, possible ways in which the accident might have happened without the defendant's negligence. The doctrine of 'res ipsa loquitur', therefore, plays a very significant role in the law of tort and it is not the relic of the past, but the living force of the day in determining the tortuous liability.
vii. The principal function of the maxim is to prevent injustice which would result if a plaintiff were invariably compelled to prove the precise cause of the accident and the defendant responsible for it, even when the facts bearing in the matter are at the outset unknown to him and often within the knowledge of the defendant.
viii. The doctrine of res ipsa loquitur has been applied by the Courts in the following cases: ● Where victim was sleeping on a cot placed in front of his house by the side of the road when the offending vehicle dashed against the cot and 11 injured the claimant.
● Where a bus had dashed against a tree, causing death of a passenger.
● Where a vehicle negotiating a sharp "U" turn dashed against a tree, moved away to a distance of 150 feet from the road and then overturned.
● Where a vehicle wentoff the road, hit against the tree and rolled down killing a passenger.
● Where a truck dashed against the victim standing by roadside.
● Where a truck came at breakneck speed without blowing horn and dashed against a 9 years old boy, who was walking on the extreme left side of the road, from behind resulting in instantaneous death."
18.The police has filed Accident Information Report(AIR) in this case and alongwith AIR police has filed copy of FIR, site plan, final report u/s 173 CrPC, seizure memo of offending vehicle, insurance policy of offending vehicle, MLC of Sh.Rakesh Kumar Pandey and Sh.Vikesh Kumar prepared at RML hospital, copy of post mortem report of Sh.Rakesh Kumar Pandey and Sh.Vikesh Kumar prepared at Lady Hardinge Medical College & Smt.S.K.hospital, New Delhi. As per post mortem report the 12 cause of death of both deceased was due to cerebral damage consequent upon blunt force/surface impact to head and all injuries are antemortem in nature. As per chargesheet respondent no.1 has been chargesheeted for the offences u/s 279/337/304AIPC. As per the allegations the accident took place while respondent no.1 was driving the offending vehicle and lost control of the vehicle and struck the vehicle against a tree on footpath and also against sign board of DTC. Alongwith AIR police has filed site plan as per which also offending vehicle had hit against a tree at pavement. The manner of accident suggests that the respondent no.1 had lost control on the vehicle and on that account the vehicle hit against a tree on the pavement.
19.The act of hitting of vehicle against a tree on the pavement and also against sign board of DTC in view of judgment of National Insurance Company Ltd. v Gita Bindal(supra) shows that respondent no.1 has failed to exercise due care and had acted in rash and negligent manner. Thus the petitioners have prima facie proved that the accident took place due to rash and negligent driving of the vehicle no.DL4CNE9499 by its driver in which Sh.Rakesh Kumar Pandey(deceased in suit no.244/13) and Sh.Vikesh Kumar(deceased in suit no.245/13) were travelling. Issue no.1 is accordingly decided in favour of the petitioners and against the respondents.
13ISSUE NO.2
20.As issue no.1 is decided in favour of the petitioners, they are entitled to compensation.
COMPENSATION IN SUIT NO.245/13
21.The present petition is filed by petitioner no.1, mother of deceased and petitioner no.2 father of deceased.
22.It is stated that Sh. Vikesh Kumar was 25 years of age at the time of accident and he was unmarried at the time of accident. PW2 Sh.Vijay Kumar father of deceased has stated in para 6 of his affidavit Ex.PW2/A that deceased was unmarried. In view of judgment of Hon'ble Delhi High Court in The Oriental Insurance Company Ltd. v. A.K.Puri & Ors, M.A.C. App. No.196/13 the multiplier shall be applicable as per age of deceased. In order to prove the age of deceased the petitioners have filed on record the copy of passport of deceased Ex.PW2/9 as per which the date of birth of deceased is 22.1.1988 hence the deceased was about 25 years and 3 months of age at the time of accident and the multiplier applicable as per Sarla Verma and Ors. vs Delhi Transport Corporation and Another (2009) 6 SCC 121 shall be of 18.
23. It is stated in the claim petition that the deceased was working as actor/choreographer and was earning a sum of Rs.1,00,000/ per month. In para 3 of affidavit Ex.PW2/A ,PW2 has stated that the deceased was 14 earning Rs.1,00,000/pm. In para 5 of affidavit Ex.PW2/A, PW2 has stated that Sh.Vikesh Kumar also received the contract for 3 films and committed a sum of Rs.1.25 lacs for 15 days acting job and if the film rd performed well, he had further committed a sum of Rs.5 lacs for the 3 project which was supposed to be shot within a period of 24 months. The contention of counsel for respondent no.3 is that although it has been pleaded by petitioners that deceased was earning Rs.1,00,000/pm but no document has been proved to this effect and it was also not proved that deceased was assessed to income tax and was making payment of income tax. PW2 stated in cross examination that Sh.Vikesh Kumar used to reside in Mumbai in rented accommodation and he does not possess any rent agreement executed by Sh.Vikesh Kumar with any landlord in Mumbai. PW2 further stated that Sh.Vikesh Kumar was not in any regular employment and he used to work on assignments which were offered to him from time to time and he was not an income tax payee. It is contended on behalf of petitioners that Sh.Vikesh Kumar had performed in many shows and was an accomplished actor and had a brilliant future. Petitioners have relied on copy of service agreement stated to have been executed between Sh.Vikesh Kumar and Dar Media. Neither the original of the said agreement has been filed on record nor any witness has been summoned from Dar Media in order to prove that the said agreement 15 was executed by the said organisation and that it entered into service agreement with Sh.Vikesh Kumar. Petitioners have not proved income of deceased by any cogent evidence. In the circumstances the income of deceased shall be taken as per his educational qualifications. The petitioners have filed on record the copy of marksheet issued by Delhi University Ex.PW2/5(colly.) as per which Sh.Vikesh Kumar had passed II year of B.Sc.(Hons.) course in the year 2009 but it has not been proved that deceased had completed his graduation. Hence the income of deceased shall be taken as minimum wages of a matriculate w.e.f. 01.04.2013 which were Rs.9386/ per month.
24.The deceased was a bachelor. In Sarla Verma and Ors. vs Delhi Transport Corporation and Another (2009) 6 SCC 121 it was held by Hon'ble Supreme Court that :
"31.Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent/s and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as 16 dependants, because they will either be independent and earning, or married, or be dependant on the father."
25.In view of the above judgment, 50% is to be deducted towards personal and living expenses and after deduction of 50% , the income of deceased would be Rs.938650% of Rs.9386/=Rs.4,693/ per month.
26.In Rajesh and others V.Rajbir Singh and others, 2013 ACJ 1403, it has been held by Hon'ble Supreme Court that :
"11.Since the court in Santosh Devi's case, 2012 ACJ 1428(SC), actually intended to follow the principle in the case of salaried persons as laid down in Sarla Verma's case, 2009 ACJ 1298(SC) and to make it applicable also to selfemployed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30 percent always; it will also have a reference to the age. In other words, in the case of selfemployed or persons with fixed wages, in case the deceased victim was below 40 years, there must be an addition of 50 percent to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax,if any. Addition should be 30 percent in case the deceased was in the age group of 40 to 50 years."
27. The age of the petitioner has been taken as 25 years and 3 months at the time of accident. Hence after addition of 50% income of deceased would be Rs.4693/+50% of 4693/=Rs.7039.5/per month which may be rounded as of Rs.7,040/ per month. After applying the multiplier of 18, the total loss of dependency is computed to be as 17 Rs.=Rs.7,040/x12x18/= Rs.15,20,640/. In Rajesh and others V.Rajbir Singh and others, 2013 ACJ 1403, Hon'ble Supreme Court has held that funeral expenses should be Rs.25,000/. Petitioner is also awarded Rs.25,000/for loss of love and affection and Rs. 10,000/ towards loss of estate.
The total compensation is determined as under:
Loss of dependency : Rs. 15,20,640/
Funeral Expenses : Rs. 25,000/
Loss of Estate : Rs. 10,000/
Loss of Love and Affection : Rs. 25,000/
TOTAL : Rs. 15,80,640/
RELIEF
28. The petitioners are thus awarded Rs.15,80,640/(Rs.Fifteen Lacs Eighty Thousand Six Hundred Forty only) with interest at the rate of 7.5% per annum in view of judgment of Rajesh and others V.Rajbir Singh(supra) from the date of filing of petition till its realisation including, interim award, if any already passed in favour of the petitioner and against the respondents.Petitioner no.2 the father of deceased can not be considered a dependent on deceased in view of judgment of Sarla Verma and Ors. vs Delhi Transport Corporation and Another (supra).In the circumstances entire amount is awarded in favour of petitioner no.1 mother of deceased.
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29.For safeguarding the compensation amount from being frittered away by the claimants, directions have been given by Hon'ble Supreme Court for preserving the award amount in the case of Jai Prakash Vs. National Insurance Co. Ltd. and Others (2010) 2 Supreme Court Cases 607. In view of the directions contained in the above judgments the award amount is to be disbursed as follows:
30. 10% of the award amount shall be released to petitioner no.1 by transferring it into her savings account and remaining amount be kept in FDR in UCO Bank, Patiala House Court, New Delhi in following manner:
1. Fixed deposit in respect of 10% for a period of one year.
2. Fixed deposit in respect of 10% for a period of two years.
3. Fixed deposit in respect of 10% for a period of three years.
4. Fixed deposit in respect of 10% for a period of four years.
5. Fixed deposit in respect of 10% for a period of five years.
6. Fixed deposit in respect of 10% for a period of six years.
7. Fixed deposit in respect of 10% for a period of seven years.
8. Fixed deposit in respect of 10% for a period of eight years.
9. Fixed deposit in respect of 10% for a period of nine years.
31.The cheque be deposited in UCO Bank, Patiala House Court, New Delhi in the name of UCO Bank, Patiala House Court, New Delhi A/c Smt.Promila.
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32.The interest on the fixed deposits shall be paid monthly by automatic credit in the saving accounts of the claimants/beneficiary.
33.Original fixed deposit receipt shall be retained by the Bank in safe custody. However, the original pass book shall be given to the claimant along with the photocopy of the FDR. Upon the expiry of period of FDR the bank shall automatically credit the maturity amount in the saving account of beneficiary.
34.The original fixed deposit receipt shall be handed over to the claimant at the end of the fixed deposit period and shall automatically credit the maturity amount in the savings account of the beneficiary.
35.No cheque book shall be issued to the claimant without permission of the court. No loan, advance or withdrawal shall be allowed on the fixed deposit without permission of the court.
36.Withdrawal from the aforesaid accounts shall be permitted to the beneficiary after due verification and the Bank shall issue photo identity card to the beneficiary to facilitate identity.
37.Bank shall transfer Savings Account to any other branch/bank according to her convenience.
38.The beneficiary shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit to Senior Manager of UCO Bank, Patiala House Court, New Delhi.
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39.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.
40.The respondent no.3 shall deposit the award amount directly in bank account of the petitioner no.2 at UCO Bank,Patiala House Court,New Delhi within 30 days of the passing of the award failing which it is liable to pay interest at the rate of 12% per annum for the period of delay.
41.The petitioner shall file two sets of photographs along with her specimen signatures, out of which one set to be sent to the Nodal Officer, UCO Bank, Patiala House Court, New Delhi 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 shall also file the proof of residence and furnish the details of the bank account with the Nazir within a week. The petitioner shall file her complete address as well as address of her counsel for sending the notice of deposit of the award amount.
42.The respondent no.3 shall deposit the award amount alongwith interest upto the date of notice of deposit to the claimant with a copy to her counsel and the compliance report shall be filed in the court alongwith proof of deposit of award amount, the notice of deposit and the calculation of interest on 11.9.2014.
21COMPENSATION IN SUIT NO.244/13
43.The present petition is filed by petitioner no.1, mother of deceased and petitioner no.2 father of deceased.
44.It is stated that Sh. Rakesh Kumar Pandey was 27 years of age at the time of accident and he was unmarried at the time of accident. In view of judgment of Hon'ble Delhi High Court in The Oriental Insurance Company Ltd. v. A.K.Puri & Ors, M.A.C. App. No.196/13 the multiplier shall be applicable as per age of deceased. In order to prove the age of deceased the petitioners have filed on record the copy of All India Secondary School Examination certificate 2002 issued by CBSE Ex.PW1/3 as per which date of birth of deceased is 27.5.1986 hence the deceased was about 27 years at the time of accident and the multiplier applicable as per Sarla Verma and Ors. vs Delhi Transport Corporation and Another (2009) 6 SCC 121 shall be of 17.
45. It is stated in the claim petition that the deceased was working as manager with M/s Just Florist(P)Ltd. and was earning a sum of Rs. 35,000/ per month. In para 3 of affidavit Ex.PW1/A ,PW1 has stated that the deceased was working as manager with M/s Just Florist(P)Ltd. and was earning a sum of Rs.32,000/pm. The petitioners have relied on appointment letter Ex.PW1/1 issued by M/s Just Florist(P)Ltd. In order to prove the employment and income of the deceased, the petitioners have 22 examined Sh.Anand Kumar, Managing Director, M/s Just Florist(P)Ltd.as PW3. PW3 stated that Sh.Rakesh Kumar Pandey had joined their organisation on 1.1.2013 as Manager Operations and the copies of the pay slips for the month of January to April 2013 are Ex.PW3/1(colly.). PW3 admitted in the cross examination that the pay slips for the month of January to March 2013 which are part of Ex.PW3/1(colly.) do not bear the name of the employee. In the pay slips for the month of January to March 2013 Ex.PW3/1(colly.) the income is mentioned as Basic Rs. 12000/, HRA Rs.5000/, Conveyance Allowance Rs.2000/, Telephone Allowance Rs.1000/ and gross pay is Rs.20000/. PW3 also filed statement of account Ex.PW3/2(colly.). The statement of account Ex.PW3/2(colly.) is for the period 7.5.2013 to 6.7.2013 i.e. subsequent to the period of death of Sh.Rakesh Kumar Pandey. PW3 admitted in cross examination that the statement of account of HDFC bank which is part of Ex.PW3/2(colly.) is for the period from 7.5.2013 to 6.7.2013 and he also stated in cross examination that the address in Ex.PW3/2(colly.) is one of their shops. It is to be noted that the pay slips for the month of January to March 2013 do not bear the name of employee to whom they pertain and they are not supported by any corresponding statement of account or any book of account to prove that the salary as mentioned in the said pay slips was paid to Sh.Rakesh Kumar Pandey. PW3 also filed copy of one 23 pay slip for the month of April 2013 which has been issued on 10.5.2013 in order to prove the income of deceased as Rs.32000/.However the same is issued on 10.5.2013 i.e. subsequent to the death of Sh.Rakesh Kumar Pandey but no document has been proved to the effect that the payment @ Rs.32,000/pm was made to Sh.Rakesh Kumar Pandey. PW3 stated in cross examination that their organisation is not providing the facility of PF and ESI to its employees and he further stated in the cross examination that the records which have been filed by him have not been submitted to any govt.organisation. PW3 further stated in cross examination that they are also not maintaining any wages register and they have not deducted TDS from the salary of Rs.Rakesh Kumar Pandey. PW3 further stated in cross examination that Sh.Rakesh Kumar Pandey had not given any letter of acceptance in pursuance of letter Ex.PW1/1. PW3 stated in cross examination that Sh.Rakesh Kumar Pandey used to get salary in cash but they have not obtained his signatures on any voucher or receipt at the time of payment of salary. It is to be noted that as per copies of pay slips for the month of January to March 2013 Ex.PW3/1(colly.)(in which name of employee is not mentioned) gross salary is Rs.20,000/. As per pay slip for the month of April 2013 gross salary is Rs.32,000/. PW3 stated in cross examination that they have not increased salary of any employee by a sum of Rs. 24 12000/pm after three months of employment. PW3 further stated in cross examination that their organisation is paying salaries from Rs.5000/ to Rs.10,000/pm to its employees and their organisation is not following Minimum Wages Act. PW3 denied the suggestion of respondent no.3 in the cross examination to the effect that the documents Ex.PW1/1, Ex.PW1/2(colly.) and Ex.PW3/1(colly.) to Ex.PW3/3 are fabricated documents and that is the reason no govt.authority has been informed regarding their employees and their income. PW3 has not proved by any cogent evidence that Sh.Rakesh Kumar Pandey was employed as manager by M/s Just Florist (P)Ltd.at the salary of Rs.20,000/pm and his salary was increased to Rs.32,000/pm and that M/s Just Florist (P)Ltd. had ever paid salary of Rs.20,000/pm or Rs.32,000/pm to Sh.Rakesh Kumar Pandey. In the absence of any cogent and reliable evidence of salary of deceased, the income of deceased shall be taken as per his educational qualifications. In order to prove educational qualifications of deceased,the petitioners have filed on record provisional certificate of Graduation of Sh.Rakesh Kumar Pandey dated 21.7.2008 issued by Kirori Mal College, Delhi University Ex.PW1/5 as per which deceased had passed BA(Hons.) course in April 2008. Hence the income of deceased shall be taken as minimum wages of a graduate w.e.f.1.4.2013 which were Rs.10218/ per month.
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46.The deceased was a bachelor. In Sarla Verma and Ors. vs Delhi Transport Corporation and Another (2009) 6 SCC 121 it was held by Hon'ble Supreme Court that :
"31.Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent/s and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependant on the father."
47.In view of the above judgment, 50% is to be deducted towards personal and living expenses and after deduction of 50% , the income of deceased would be Rs.1021850% of Rs.10218/=Rs.5109/ per month.
48.In Rajesh and others V.Rajbir Singh and others, 2013 ACJ 1403, it has been held by Hon'ble Supreme Court that :
"11.Since the court in Santosh Devi's case, 2012 ACJ 1428(SC), actually intended to follow the principle in the case of salaried persons as laid down in Sarla Verma's case, 2009 ACJ 1298(SC) and to make it applicable also to selfemployed and persons on fixed wages, it is 26 clarified that the increase in the case of those groups is not 30 percent always; it will also have a reference to the age. In other words, in the case of selfemployed or persons with fixed wages, in case the deceased victim was below 40 years, there must be an addition of 50 percent to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax,if any. Addition should be 30 percent in case the deceased was in the age group of 40 to 50 years."
49. The age of the petitioner has been taken as about 27 years at the time of accident. Hence after addition of 50% income of deceased would be Rs.5109/+50% of 5109/=Rs.7663.5/per month which may be rounded as of Rs.7664/ per month. After applying the multiplier of 18, the total loss of dependency is computed to be as Rs.=Rs.7664/x12x17= Rs.15,63,456/. In Rajesh and others V.Rajbir Singh and others, 2013 ACJ 1403, Hon'ble Supreme Court has held that funeral expenses should be Rs.25,000/. Petitioner is also awarded Rs.25,000/for loss of love and affection and Rs. 10,000/ towards loss of estate.
The total compensation is determined as under:
Loss of dependency : Rs. 15,63,456/
Funeral Expenses : Rs.
25,000/
Loss of Estate : Rs. 10,000/
Loss of Love and Affection : Rs. 25,000/
27
TOTAL : Rs. 16,23,456/
RELIEF
50. The petitioners are thus awarded Rs.16,23,456/(Rs.Sixteen Lacs Twenty Three Thousand Four Hundred Fifty Six only) with interest at the rate of 7.5% per annum in view of judgment of Rajesh and others V.Rajbir Singh(supra) from the date of filing of petition till its realisation including, interim award, if any already passed in favour of the petitioner and against the respondents. Petitioner no.2 the father of deceased can not be considered a dependent on deceased in view of judgment of Sarla Verma and Ors. vs Delhi Transport Corporation and Another (supra).In the circumstances entire amount is awarded in favour of petitioner no.1 mother of deceased.
51.For safeguarding the compensation amount from being frittered away by the claimants, directions have been given by Hon'ble Supreme Court for preserving the award amount in the case of Jai Prakash Vs. National Insurance Co. Ltd. and Others (2010) 2 Supreme Court Cases 607. In view of the directions contained in the above judgments the award amount is to be disbursed as follows:
52. 10% of the award amount shall be released to petitioner no.1 by transferring it into her savings account and remaining amount be kept in FDR in UCO Bank, Patiala House Court, New Delhi in following manner: 28
1. Fixed deposit in respect of 10% for a period of one year.
2. Fixed deposit in respect of 10% for a period of two years.
3. Fixed deposit in respect of 10% for a period of three years.
4. Fixed deposit in respect of 10% for a period of four years.
5. Fixed deposit in respect of 10% for a period of five years.
6. Fixed deposit in respect of 10% for a period of six years.
7. Fixed deposit in respect of 10% for a period of seven years.
8. Fixed deposit in respect of 10% for a period of eight years.
9. Fixed deposit in respect of 10% for a period of nine years.
53.The cheque be deposited in UCO Bank, Patiala House Court, New Delhi in the name of UCO Bank, Patiala House Court, New Delhi A/c Smt.Sushila Pandey.
54.The interest on the fixed deposits shall be paid monthly by automatic credit in the saving accounts of the claimants/beneficiary.
55.Original fixed deposit receipt shall be retained by the Bank in safe custody. However, the original pass book shall be given to the claimant along with the photocopy of the FDR. Upon the expiry of period of FDR the bank shall automatically credit the maturity amount in the saving account of beneficiary.
56.The original fixed deposit receipt shall be handed over to the claimant at the end of the fixed deposit period and shall automatically credit the 29 maturity amount in the savings account of the beneficiary.
57.No cheque book shall be issued to the claimant without permission of the court. No loan, advance or withdrawal shall be allowed on the fixed deposit without permission of the court.
58.Withdrawal from the aforesaid accounts shall be permitted to the beneficiary after due verification and the Bank shall issue photo identity card to the beneficiary to facilitate identity.
59.Bank shall transfer Savings Account to any other branch/bank according to her convenience.
60.The beneficiary shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit to Senior Manager of UCO Bank, Patiala House Court, New Delhi.
61.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.
62.The respondent no.3 shall deposit the award amount directly in bank account of the petitioner no.2 at UCO Bank,Patiala House Court,New Delhi within 30 days of the passing of the award failing which it is liable to pay interest at the rate of 12% per annum for the period of delay.
63.The petitioner shall file two sets of photographs along with her specimen signatures, out of which one set to be sent to the Nodal Officer, UCO 30 Bank, Patiala House Court, New Delhi 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 shall also file the proof of residence and furnish the details of the bank account with the Nazir within a week. The petitioner shall file her complete address as well as address of her counsel for sending the notice of deposit of the award amount.
64.The respondent no.3 shall deposit the award amount alongwith interest upto the date of notice of deposit to the claimant with a copy to her counsel and the compliance report shall be filed in the court alongwith proof of deposit of award amount, the notice of deposit and the calculation of interest on 11.9.2014.
APPORTIONMENT OF LIABILITY:
65. Respondents have not led evidence despite opportunities. Thus, respondent no.1 being the driver, respondent no.2 being the owner and respondent no.3 being the insurer are held jointly and severally liable. Respondent no.3 is directed to deposit the award amount within 30 days with interest at the rate of 7.5% from the date of filing of petition till its realisation. In case of any delay, it is liable to pay interest @ 12% per annum for the period of delay. Nazir to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. Nazir is 31 directed to note the particulars of the award amount in the register today itself.
An attested copy of the award be given to the parties. File be consigned to Record Room.
Announced in the open court. (Harish Dudani) on 21.7.2014. PO/MACT01, New Delhi.