Delhi District Court
S. Pargan Singh vs Sawinder Singh (Dmt) on 12 May, 2014
IN THE COURT OF Ms. GEETANJLI GOEL
PO: MOTOR ACCIDENT CLAIMS TRIBUNAL 2
NEW DELHI
SUIT NO.10/14
DATE OF INSTITUTION: 17.01.2014
IN THE MATTER OF:
1. S. Pargan Singh
S/o S. Gurbachan Singh
2. Smt. Kamaljeet Kaur
W/o S. Pargan Singh
Both R/o H.No.WZ81A/1
Gali No. 1/A
Gurunanak Nagar
MBS Nagar, Vikas Puri,
New Delhi18. ............... Petitioners.
Versus
1. Sawinder Singh (DMT)
S/o S. Amrik Singh
R/o Village Ilma Wala
PS Mallawala
Tehsil & Distt. Firozpur
Punjab.
Also At:
Unit 79, Medium Regiment
Artillery Army Camp
Dundahera, Gurgaon
Haryana.
Suit No. 10/14
S. Pargan Singh & Ors. Vs.Sawinder Singh & Ors. Page No. 1 of 29
2. The Station Comdr./Commanding Officer
Unit 79, Medium Regiment
Artillery Army Camp
Dundahera, Gurgaon
Haryana.
3. Union of India
Through Secretary (Defence)
Ministry of Defence
New Delhi. ............Respondents
Final Arguments heard : 28.04.2014 Award reserved for : 12.05.2014 Date of Award : 12.05.2014 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.It is the case of the petitioners that on 18.10.2012 at about 11.15 a.m. a white Gypsy belonging to Military bearing No.08B097735P came from Old Nangal by the side of flyover through service road and the traffic police personnel tried to stop the said Gypsy but the respondent No.1 ignored the direction of the traffic police personnel and drove the Gypsy in a rash and negligent manner in high speed in wrong direction to Janak Flyover towards Tilak Nagar and hit the son of the petitioners who was going on his Suit No. 10/14 S. Pargan Singh & Ors. Vs.Sawinder Singh & Ors. Page No. 2 of 29 motorcycle No.DL6SAJ7918 make Pulsar in right direction with normal speed. It is averred that the said accident had been caused by driving the Gypsy in wrong direction in high speed in rash and negligent manner by Gypsy driver/respondent No.1. It is averred that if the driver of the vehicle Gypsy No.08B097735P had been a bit cautious, the accident could have been avoided. It is averred that the said accident had been caused purely due to the rash and negligent driving of the offending vehicle by its driver. It is stated that in respect of the accident, FIR No.239/12 under Sections 279/304A IPC was registered at PS Delhi Cantt.
3. It is averred that the deceased was a teetotaller and was possessing very sound health and physique and he was not suffering from any ailments. It is averred that if he not expired in the accident, he would have survived upto the age of at least 100 years. It is averred that late Daljeet Singh was the earning member in his family. He was of young age and was having a long life to survive. It is averred that due to the untimely death of Daljeet Singh, the petitioners had been deprived of his income of Rs.15,000/ p.m. guidance and love and affection. It is averred that if the deceased Daljeet Singh had survived, his income would have increased manifold. Daljeet Singh was very hard working and enthusiastic and he was working as electrician and was having a bright future. His income had been rising progressively. He was a permanent source of income for his family. It is stated that the petitioners spent a sum of Rs.35,000/ on funeral of late Suit No. 10/14 S. Pargan Singh & Ors. Vs.Sawinder Singh & Ors. Page No. 3 of 29 Daljeet Singh. It is averred that the petitioners are finding it very difficult to pull on day to day life due to nonavailability of financial help and they worry day and night about their survival in future and the accident had brought both the petitioners on the brink of hunger and starvation. The petitioners had lost the company of their son at a very young age. They are suffering a great trauma and mental sickness due to the untimely death of their son. It is averred that the deceased Daljeet Singh was very much dedicated to his family and he used to take special care of his parents and both brothers. If Daljeet Singh had survived, he would have taken care of his parents in old age and he would have helped his brothers to their prosperous future. He would have helped the petitioners in arranging the marriage of their sons. Both the petitioners were feeling very insecure because the petitioner No.1 was not able to go to work as he had lost his earning son. It is averred that the respondent No.1 is the driver of the offending vehicle, respondent No.2 is the commandant of 79 unit and respondent No.3 is impleaded as party as all the defence personnel and defence vehicles come under the Ministry of Defence and hence all the respondents are jointly, severally and vicariously liable to pay the compensation that may be awarded. It is prayed that an amount of Rs.25,00,000/ be awarded as compensation in favour of the petitioners and against the respondents.
4. Written statement was filed on behalf of all the respondents taking the preliminary objections that the alleged accident did not take place due to the Suit No. 10/14 S. Pargan Singh & Ors. Vs.Sawinder Singh & Ors. Page No. 4 of 29 rash and negligent driving of the respondent No.1. It is averred that the alleged accident took place due to the rash and negligent driving of the motorcycle by the deceased Sh. Daljeet Singh who was solely responsible for the said accident. The averments made in the claim petition were denied and it was denied that the deceased was working as electrician or that the deceased was earning Rs.15,000/ per month. It is averred that the deceased was not paying any income tax so it may be presumed that the deceased was not earning Rs.15,000/ per month as claimed in the petition. It is averred that the police had lodged the alleged FIR against the respondent No.1 on the concocted story of the complainant. It is denied that the traffic police personnel tried to stop the Gypsy and the respondent No.1 ignored the direction of the traffic police and drove the Gypsy in rash and negligent manner in high speed on the wrong direction of Janak Flyover towards Tilak Nagar and hit the deceased. It is denied that the alleged accident was caused by driving the Gypsy in wrong direction in high speed by the respondent No.1. It is stated that Government vehicles are exempted from the requirement of insurance, hence the Gypsy bearing No.08B097735P was not insured. It is averred that the claim of Rs.25,00,000/ is not supported by any cogent reasons or justification. The incident of 18th October 2012 at about 11.15 a.m. as mentioned by the petitioners is denied and it is stated that the petitioners were giving details of the accident without any personal knowledge and only as per hearsay evidence. It is denied that the accident has occurred due to the rash and Suit No. 10/14 S. Pargan Singh & Ors. Vs.Sawinder Singh & Ors. Page No. 5 of 29 negligent driving of offending Gypsy No.08BO97735P by the respondent No.1.
5. It is averred that on the said date one side of the Janak Flyover was closed for repairs and there was oncoming traffic from Lajwanti Garden, towards Delhi Cantt. resulting in two way traffic on one half of the flyover. When the respondent No.1 was driving the vehicle across the Janak Flyover near Lajwanti Garden, while proceeding towards Mayapuri, a motorcyclist coming from the opposite direction, brushed past the respondent vehicle while it was overtaking two cars parallel to each other causing minor damage/scratches to the respondents' vehicle on the right side (driver side). It is averred that the deceased motorcyclist was driving his motorcycle rashly and negligently at a high speed and brushed past the vehicle of respondent No.1 and the deceased was solely responsible for the said accident. It is denied that the deceased was taking care of his parents and brothers.
6. Detailed Accident Information Report was filed by the IO and the same day the claim petition was filed. From the pleadings of parties the following issues were framed vide order dated 17.02.2014:
1. Whether the deceased Daljeet Singh suffered fatal injuries in a road accident which occurred on 18.10.2012 at about 11.15 a.m at Old Nangal by the side of flyover Suit No. 10/14 S. Pargan Singh & Ors. Vs.Sawinder Singh & Ors. Page No. 6 of 29 through service road caused by rash and negligent driving of vehicle No.08B097735P driven by respondent No.1 and owned by respondents No.2 and 3?
2. Whether petitioners are entitled for compensation? If so, to what amount and from whom?
3. Relief.
7. The petitioners led evidence by way of affidavit of S. Pargan Singh Ex.PW1/A reiterating the averments made in the claim petition. Copy of election ID Card of PW1 is Ex.PW1/1, copy of election ID Card of petitioner No.2 is Ex.PW1/2, copy of ration card is Ex.PW1/3, copy of election ID Card of the deceased is Ex.PW1/4, copy of secondary school examination certificate is Ex.PW1/5, copy of secondary school examination mark sheet is Ex.PW1/6, copy of Sr. Secondary School mark sheets of deceased is Ex.PW1/7, copy of migration certificate is Mark A and DAR is Ex.PW1/9 (colly). PE was closed on 21.3.2014.
8. On behalf of the respondents respondent No.1 Shri Swinder Singh appeared in the witness box as R1W1 and led his evidence by way of affidavit which is Ex.R1W1/A. He deposed that he was the driver of Maruti Gypsy Vehicle BA number 08B097735P of 79, Medium regiment artillery Suit No. 10/14 S. Pargan Singh & Ors. Vs.Sawinder Singh & Ors. Page No. 7 of 29 Army Group, Dundahera, Gurgaon. On 18.10.2012 he was detailed on duty to drive the vehicle from unit LOC to Delhi Cantt for unit officers to appear for part D Exams. After dropping the officers, he took the vehicle towards Mayapuri, New Delhi for a unit task. He stated that at about 11.20 hours when he was driving on the Janak Flyover near Lajwanti Garden, while proceeding towards Mayapuri, a motorcycle No.DL6SAJ9918 coming from the opposite direction, at high speed brushed past his vehicle, while he was overtaking two cars moving parallel to each other causing minor damages/ scratches to the vehicle of R1W1 and the motorcycle went ahead. He stated that one side of the flyover was closed for traffic and both the incoming and outgoing traffic was going on one side of the flyover. He stated that he was driving his vehicle and following the other vehicles which were going towards Tilak Nagar. He stated that at place there was no sign board informing that the flyover side (Delhi Cantt to Tilak Nagar) was closed for traffic/ repairing. He stated that there was no traffic police of local police present on the spot to stop the traffic and inform the public that the traffic on one side of the flyover was closed. He stated that no barricades were put up by the police/ PWD etc to stop the traffic going on the flyover. He stated that he was driving his vehicle very slowly on the proper side following the other vehicles. He stated that he was not responsible for the said alleged accident and the police had falsely implicated him in the said FIR to make case against him to save their neck. RE was closed on 28.4.2014.
Suit No. 10/14 S. Pargan Singh & Ors. Vs.Sawinder Singh & Ors. Page No. 8 of 29
9. I have heard the learned counsel for the petitioners and the learned counsel for the respondents and perused the record. The petitioners were also examined on 28.04.2014 in terms of the judgment of the Hon'ble High Court on 11.1.2013 in MACA No.792/2006 titled Oriental Insurance Co. Ltd. v. Ranjit Pandey and Ors.
10. My findings on the specific issues are as under:
ISSUE NO.1
11. As the petition has been filed U/s 166 M.V Act it was incumbent upon the petitioners to prove that the deceased sustained injuries in an accident caused due to the rash and negligent driving by respondent No.1, the driver of the offending vehicle No.08B097735P.
12. To determine the negligence of the driver of the offending vehicle it has been held in National Insurance Company Ltd. vs Pushpa Rana & Another 2009 Accident Claims Journal 287 as follows:
"The last contention of the appellant insurance company is that the respondents/claimants 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 Suit No. 10/14 S. Pargan Singh & Ors. Vs.Sawinder Singh & Ors. Page No. 9 of 29 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 to involvement of offending vehicle (ii) criminal record showing completion of investigation of police and issue of charge sheet under sections 279/304A, Indian Penal Code against the driver; (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 the 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."
It is established law that in a claim petition under Motor Vehicle Act, the standard of proof to establish rash and negligent driving by the driver of the offending vehicle is not at par with the criminal case where such rashness and negligence is required to be proved beyond all shadow of reasonable doubt. In Kaushnamma Begum and others v. New India Assurance Company Limited, it was inter alia held by the Hon'ble Supreme Court that the issue of wrongful act or omission on the part of the driver of the motor vehicle involved in the accident has been left to a secondary importance and mere use or involvement of motor vehicle in causing bodily injury or death to a human being or damage to property would make the petition maintainable Suit No. 10/14 S. Pargan Singh & Ors. Vs.Sawinder Singh & Ors. Page No. 10 of 29 under Sections 166 and 140 of the Motor Vehicle Act.
13. The case of the petitioners is that on 18.10.2012 at about 11.15 a.m. a white Gypsy belonging to Military bearing No.08B097735P came from Old Nangal by the side of flyover through service road and the traffic police personnel tried to stop the said Gypsy but the respondent No.1 ignored the direction of the traffic police personnel and drove the Gypsy in a rash and negligent manner in high speed in wrong direction to Janak Flyover towards Tilak Nagar and hit the son of the petitioners who was going on his motorcycle No.DL6SAJ7918 make Pulsar in right direction with normal speed. It was stated that the said accident had been caused by driving the Gypsy in wrong direction in high speed in rash and negligent manner by the Gypsy driver/respondent No.1. It was stated that if the driver of the vehicle Gypsy No.08B097735P had been a bit cautious, the accident could have been avoided. It is stated that in respect of the accident, FIR No.239/12 under Sections 279/304A IPC was registered at PS Delhi Cantt. In paras 2 and 3 of his affidavit Ex.PW1/A the petitioner No.1 has reiterated the mode and manner of the accident as stated in the claim petition.
14. The IO had filed the DAR comprising the criminal record consisting of copy of FIR No.239/12 under sections 279/304A IPC, PS Delhi Cantt, copy of charge sheet, copy of DD on which the case was registered, copy of site plan, copy of seizure memo of the Gypsy, verification report of the DL of Suit No. 10/14 S. Pargan Singh & Ors. Vs.Sawinder Singh & Ors. Page No. 11 of 29 respondent No.1, copy of mechanical inspection report of vehicle No.08B 097735P and of DL6SAJ7918, copy of arrest memo and personal search memo, copy of seizure memo of the DL and copy of the DL, copy of the post mortem report and MLC, copy of duty roster, copies of election I cards of the petitioners, copy of seizure memo of piece of bumper and motorcycle, copy of DDs and copy of documents of release of the offending vehicle on superdari. As per the FIR No.239/12 under sections 279/304A IPC, PS Delhi Cantt the case was registered on the basis of DD/ complaint of ASI Bharat Singh in which it was stated that the motorcycle and Gypsy were found at the spot. As per the charge sheet respondent No.1 has been charge sheeted for the offence under sections 279/304A IPC.
15. During crossexamination PW1 admitted that he had not witnessed the accident in question. He admitted that he did not have any personal knowledge about the accident. Thus PW1 had not witnessed the accident and he did not have any personal knowledge about the accident. The petitioners had moved an application to summon one S.C. Rajesh who was stated to be an eye witness. However the same was disallowed as the DAR did not show S.C. Rajesh as an eye witness.
16. In the written statement the respondents had stated that the alleged accident had taken place due to the rash and negligent driving of the motorcycle by the deceased Sh. Daljeet Singh who was solely responsible Suit No. 10/14 S. Pargan Singh & Ors. Vs.Sawinder Singh & Ors. Page No. 12 of 29 for the said accident. It was stated that the police had lodged the alleged FIR against the respondent No.1 on the concocted story of the complainant. The incident of 18th October 2012 at about 11.15 a.m. as mentioned by the petitioners was denied and it was stated that the petitioners were giving details of the accident without any personal knowledge and only as per hearsay evidence. It was stated that on the said date one side of the Janak Flyover was closed for repairs and there was oncoming traffic from Lajwanti Garden, towards Delhi Cantt. resulting in two way traffic on one half of the flyover. When the respondent No.1 was driving the vehicle across the Janak Flyover near Lajwanti Garden, while proceeding towards Mayapuri, a motorcyclist coming from the opposite direction, brushed past the respondent vehicle while it was overtaking two cars parallel to each other causing minor damage/scratches to the respondents' vehicle on the right side (driver side). It was stated that the deceased motorcyclist was driving his motorcycle rashly and negligently at a high speed and brushed past the vehicle of respondent No.1 and the deceased was solely responsible for the said accident. In support of the case of the respondents the respondent No.1 had appeared in the witness box as R1W1 and deposed to the same effect. He had stated that when he was driving on the Janak Flyover near Lajwanti Garden, while proceeding towards Mayapuri, a motorcycle No.DL6SAJ9918 coming from the opposite direction, at high speed brushed past his vehicle, while he was overtaking two cars moving parallel to each other causing minor damages/ scratches to the vehicle of R1W1 and the motorcycle went Suit No. 10/14 S. Pargan Singh & Ors. Vs.Sawinder Singh & Ors. Page No. 13 of 29 ahead. He had stated that one side of the flyover was closed for traffic and he was driving his vehicle and following the other vehicles which were going towards Tilak Nagar.
17. During crossexamination R1W1 stated that he is Matric. He admitted that FIR No.239/12, PS Delhi Cantt. was registered against him in respect of the accident. He had not yet received summons from the Court of Ld. MM in the criminal case. He stated that he had not made any complaint to the police authorities that the FIR had been wrongly registered against him. He admitted that on the day of the accident he was driving the alleged offending vehicle. He denied the suggestion that the road on his side was closed. He stated that he was not aware that it was a one way traffic volunteered there were vehicles going ahead of him in the direction which he took. He denied the suggestion that he had deposed falsely that there were vehicles ahead of him or that traffic constable on duty had indicated to him to stop but without caring for the same he went ahead volunteered there was no traffic person at the spot. He denied the suggestion that there were any barricades at the spot or that the accident had taken place due to his negligence as he had gone on the wrong way and hit the motorcycle of the deceased or that he was deposing falsely to defeat the claim of the claimants or that he had filed a false affidavit. Thus R1W1 had admitted that on the day of the accident he was driving the alleged offending vehicle. Suit No. 10/14 S. Pargan Singh & Ors. Vs.Sawinder Singh & Ors. Page No. 14 of 29
18. R1W1 had stated that one side of the flyover was closed though he denied the suggestion that the road on his side was closed. A perusal of the FIR shows that it was mentioned therein that on the wrong side on Janak Flyover in the morning from 8.00 a.m. to 4.00 p.m. there is one way traffic from Tilak Nagar to Delhi Cantt. and from Delhi Cantt to Tilak Nagar the flyover was closed for repairing. It was also stated in the FIR that the Gypsy No.08B097735P was on the wrong side and going from Delhi Cantt. The site plan also mentions that the carriageway of the Janak Flyover going from Tilak Nagar to Delhi Cantt was closed for repair due to which there used to be one way traffic on the same from Tilak Nagar to Delhi Cantt from 8 a.m. to 4 p.m. and from 4 p.m. to 11.00 p.m. there used to be one way traffic from Delhi Cantt to Tilak Nagar. Thus at the time of the accident the flyover was open for traffic from Tilak Nagar to Delhi Cantt whereas the respondent No.1 was going from Delhi Cantt to Tilak Nagar. He had stated that there was no sign board to that effect and even no barricade and he was following the other vehicles and during crossexamination he had stated that he was not aware that it was a one way traffic volunteered there were vehicles going ahead of him in the direction which he took. However the fact remains that he was going in the wrong direction. Further R1W1 had stated that the motorcycle coming from the opposite direction had brushed past his vehicle while he was overtaking two cars causing minor damages/ scratches to his vehicle and the mechanical inspection report of the Gypsy shows scratch on the front right side of the bumper. However the same also shows that there Suit No. 10/14 S. Pargan Singh & Ors. Vs.Sawinder Singh & Ors. Page No. 15 of 29 was damage to the right side front and back mudguard and the support of the front bumper right side was also broken. In the FIR as well it was stated that piece of the bumper was found and the site plan also shows the same. In these circumstances it would be a case of more than the motorcycle just brushing past the Gypsy causing scratches/ minor damages to the Gypsy.
19. It would be argued on behalf of the respondents that PW1 was not an eyewitness to the accident and the petitioners had not examined any eye witness to prove the negligence of respondent No.1 and as such the petitioners had failed to prove the negligence of respondent No.1. It is true that PW1 had stated that he was not an eye witness to the accident and no other eye witness has been produced in the witness box but the criminal record supports the case of the petitioners. Further the respondent No.1 has not been able to substantiate his defence and it has come on record that he was driving on the wrong side. Further R1W1 had admitted that FIR No.239/12, PS Delhi Cantt. was registered against him in respect of the accident. He had not yet received summons from the Court of Ld. MM in the criminal case though a perusal of the charge sheet would show that he has been charge sheeted. He stated that he had not made any complaint to the police authorities that the FIR had been wrongly registered against him. The criminal record shows that respondent No.1 has already been charge sheeted for the offence under Sections 279/304A IPC. In Basant Kaur and others v. Chattar Pal Singh and others 2003 ACJ 369 MP (DB) it was Suit No. 10/14 S. Pargan Singh & Ors. Vs.Sawinder Singh & Ors. Page No. 16 of 29 observed that registration of criminal case against the driver of the offending vehicle was enough to record a finding that the driver of the offending vehicle was responsible for causing the accident. There is absolutely no evidence from the respondents to disprove the the involvement of vehicle No.08B 097735P. In view of the testimony of PW1 and documents on record which have remained unrebutted, the negligence of respondent No.1 has been prima facie proved.
20. It was stated that the deceased had been declared 'brought dead' at DDU Hospital. The copy of the post mortem report is on record as per which the cause of death was head injury followed by road traffic accident and that all injuries were antemortem in nature. Thus it stands established that the deceased had sustained injuries in the accident due to which he died. Issue No.1 is decided accordingly in favour of the petitioners and against the respondents.
ISSUE NO. 2
21. Since issue No.1 has been decided in favour of the petitioners they would be entitled to compensation. The petitioner No.1 is the father of the deceased and petitioner No.2 is the mother of the deceased. PW1 was crossexamined on the point of being dependent on the deceased. During cross examination PW1 stated that he is illiterate. He stated that at present Suit No. 10/14 S. Pargan Singh & Ors. Vs.Sawinder Singh & Ors. Page No. 17 of 29 he is not working. He had three children out of whom his son Daljeet Singh had expired in the accident. He stated that Devender Singh is his elder son and he is 27 years old. Jasbeer Singh is his youngest son and he is 22 years old. He stated that Devender is working at present and Jasbeer is studying in 2nd year. He had APL Ration Card. He stated that the address where he is residing belongs to his parents. PW1 denied the suggestion that he and his family were not dependent on him as his other son and he were also working or that he was well established and he had his own property and earning. Thus PW1 had stated that he had three children and his elder son was working at present while the youngest son was studying. He had stated that he was not working but no reason has been stated for the same though he was only around 50 years of age. During examination by the Tribunal the petitioner No.1 had stated that he is 51 years old. At the time of the accident he was working as an electrician. He stated that he had 2 sons apart from the deceased who were 27 and 22 years respectively. The petitioner No.2 stated that she is 48 years old and she was a housewife and did not work. Thus PW1 had stated that he was working as an electrician at the time of the accident.
22. It is the case of the petitioners that the deceased was a teetotaller and was possessing very sound health and physique and he was not suffering from any ailments. Late Daljeet Singh was the earning member in his family. He was of young age and was having a long life to survive and if the Suit No. 10/14 S. Pargan Singh & Ors. Vs.Sawinder Singh & Ors. Page No. 18 of 29 deceased Daljeet Singh had survived, his income would have increased manifold. Daljeet Singh was working as an electrician and earning Rs.15,000/ p.m. and his income had been rising progressively. He was a permanent source of income for his family. It was stated that the petitioners had lost the company of their son at a very young age. They are suffering a great trauma and mental sickness due to the untimely death of their son. PW1 in paras 4 to 9 of his affidavit Ex.PW1/A had stated to that effect. The petitioners have placed on record copy of secondary school examination certificate Ex.PW1/5, copy of secondary school examination mark sheet Ex.PW1/6, copy of Sr. Secondary School mark sheets of deceased Ex.PW1/7 and copy of migration certificate Mark A.
23. During crossexamination PW1 stated that his deceased son was earning about Rs.15,000/ p.m. He stated that he had not placed on record any income proof of his son volunteered he was in private service. He stated that his son was not an income tax payee. He stated that his deceased son was class 12th pass and he had taken admission in graduation but he had not cleared the same. He stated that his son was doing work of electrical repairs. His son had not obtained any certificate or diploma for working as electrician. He was not even doing any course in that regard. He denied the suggestion that his son was neither an electrician nor doing the work of electrical repairs nor earning Rs.15,000/ p.m. He denied the suggestion that he had filed a false claim and false affidavit. Thus PW1 had reiterated that Suit No. 10/14 S. Pargan Singh & Ors. Vs.Sawinder Singh & Ors. Page No. 19 of 29 his deceased son was earning about Rs.15,000/ p.m. but he also stated that he had not placed on record any income proof of his son and volunteered that he was in private service. Further he stated that his son was not an income tax payee. Thus there is no document on record to show the income of the deceased. PW1 had stated that his son was doing work of electrical repairs but he also stated that his son had not obtained any certificate or diploma for working as electrician and he was not even doing any course in that regard. Thus the deceased had not even obtained any certificate or diploma for working as electrician.
24. In the instant case no evidence has been led to show that the deceased was working as an electrician or earning Rs.15,000/ p.m. In these circumstances the income of the deceased would be computed on the basis of minimum wages. PW1 had stated that his deceased son was class 12 th pass and he had taken admission in graduation but he had not cleared the same. The copy of the secondary school examination certificate and Sr. Secondary School mark sheets of the deceased also show the same. As such the income of the deceased would be taken as minimum wages for a matriculate prevailing at the time of the accident i.e. on 18.10.2012 which were Rs.8814/.
25. In the claim petition it was stated that the deceased was 25 years. Suit No. 10/14 S. Pargan Singh & Ors. Vs.Sawinder Singh & Ors. Page No. 20 of 29 Copy of election I card of the deceased is Ex.PW1/4 which shows his age as 20 years on 1.1.2008. The copy of the Delhi Secondary School Examination Certificate of the deceased is Ex.PW1/5 which shows the date of birth of the deceased to be 30.3.1988. As such he was more than 24 years on the date of the accident i.e. 18.10.2012. As per the judgment of the Hon'ble Supreme Court in Sarla Verma's case the multiplier of 18 applies for calculating the loss of income where the age of the deceased is 21 to 25 years. The law is now well settled that in the case of death of a child, the multiplier would be as per the age of the deceased and not as per the age of the claimants or as per the age of the mother. The issue of multiplier was considered by the Hon'ble High Court in the case of Mohd. Hasnain & Ors. Vs. Jagram Meena & Ors. bearing MAC. APP. No. 152/2014, decided on 24.03.2014, wherein it held as under: "21. The maximum value of the multiplier is fixed at 18, which is fairly representing the purchasing capacity of a victim in a stable economy. In the ascertainment of purchasing capacity of the victim, the age of the claimant has no relevance because of the fact that it has no nexus with the assessment of the loss of dependency.
22. Moreover, subsequent to the introduction of Section 163A and the Second Schedule of the Act, the Apex Court in Trilok Chandra, introduced a structural change by increasing the numerical value of multiplier from 16 to 18, whereas it had been fixed at 16 as per Susamma Thomas. Specifically, there was no variation in respect of fundamental premise of "multiplier method ‟ as held in Susamma Thomas. In Trilok Chandra, the Apex Court has taken the second Suit No. 10/14 S. Pargan Singh & Ors. Vs.Sawinder Singh & Ors. Page No. 21 of 29 schedule as a guiding factor.
23. Significantly, the Apex Court in the case of Reshma Kumari and M. Nag Pal has followed the age of the victim as a factor for selecting the multiplier. Specifically, in the selection of multiplier for the age group up to ‟15‟ the Apex Court never considered the age of the claimants as a relevant factor. Therefore, this court finds no reason to adopt a different formula for the victim who is above "15‟ years of age, whereas the relevant factors have been adopted by the Apex Court such as (i) age of the deceased (ii) income of the deceased and (iii) number of dependents. The Apex Court, while formulating the relevant factors for the assessment of loss of dependency, the age of the claimants was never considered as a factor. Finally, in the assessment of dependency, the courts / tribunals are computing the purchasing capacity of the deceased; not the claimants. Therefore, I am of the considered opinion that the age of the victim is the proper factor for selecting the correct multiplier."
This ratio has further been applied by the Hon'ble High Court of Delhi in MAC.APP. 1227/2012 NEW INDIA ASSURANCE CO LTD. V. MS.SHAMIM FATIMA & ORS decided on 1.4.2014. Thus the multiplier applicable in the instant case would be of 18.
26. Since the deceased was unmarried there would be 50% deduction towards personal and living expenses. As regards the future prospects in Rajesh and Ors. v Rajbir Singh and Ors. 2013 (6) SCALE 563 the Hon'ble Supreme Court held as under:
"11. Since, the Court in Santosh Devi's case (supra) actually Suit No. 10/14 S. Pargan Singh & Ors. Vs.Sawinder Singh & Ors. Page No. 22 of 29 intended to follow the principle in the case of salaried persons as laid in Sarla Verma's case (supra) and to make it applicable also to the selfemployed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30% 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% 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% in case the deceased was in the age group of 40 to 50 years."
12.In Sarla Verma's case (supra), it has been stated that in the case of those above 50 years, there shall be no addition. Having regard to the fact that in the case of those selfemployed or on fixed wages, where there is normally no age of superannuation, we are of the view that it will only be just and equitable to provide an addition of 15% in the case where the victim is between the age group of 50 to 60 years so as to make the compensation just, equitable, fair and reasonable. There shall normally be no addition thereafter."
Thus the petitioners would be entitled to addition of 50% of the income towards future prospects as the deceased was less than 40 years. Accordingly the loss of dependency as per the monthly income i.e. Rs.8,814/ is calculated as under :
Rs.8,814/ + Rs.4,407 (50% future prospects) = Rs.13,221/ - Rs.6610.5 (i.e. 50% towards personal expenses) = Rs.6610.5 X 12 (annually) X 18 (multiplier) = Rs.14,27,868/ (rounded off to Rs.14,28,000) Suit No. 10/14 S. Pargan Singh & Ors. Vs.Sawinder Singh & Ors. Page No. 23 of 29
27. The petitioners are also entitled to compensation for loss of love and affection, loss of estate and funeral expenses.
The total compensation is determined as under:
Loss of dependency : Rs.14,28,000/ Love and affection : Rs.50,000/ Loss of Estate : Rs.10,000/ Funeral expenses : Rs.10,000/ Total : Rs.14,98,000/
Thus, the total compensation would amount to Rs.14,98,000/. RELIEF
28. The petitioners are awarded a sum of Rs.14,98,000/ (Rs.Fourteen lacs ninety eight thousand only) with interest at the rate of 7.5% per annum in terms of the decision in Rajesh and others v. Rajbir Singh and others 2013 ACJ 1403 from the date of filing the claim petition till its realization, including, interim award, if any already passed in favour of the petitioners and against the respondents. The petitioner No.1 would have 20% share and petitioner No.2 would have 80% share in the awarded amount. The entire amount awarded to petitioner No.1 be released to him. The respondent No.3 shall deposit the award amount directly in the bank account of the petitioner Suit No. 10/14 S. Pargan Singh & Ors. Vs.Sawinder Singh & Ors. Page No. 24 of 29 No.1 claimant 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.
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 judgment the award amount is to be disbursed as follows:
a) 20% of the share of the petitioner No.2 be released to her by transferring it into her savings account and remaining amount out of her share be kept in FDRs in UCO Bank, Patiala House Court, New Delhi in the 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. Suit No. 10/14
S. Pargan Singh & Ors. Vs.Sawinder Singh & Ors. Page No. 25 of 29
b) The respondent No.3 is directed to deposit the amount directly by way of crossed cheque in terms of the above order in UCO Bank, Patiala House Court, New Delhi in the name of UCO Bank, Patiala House Court, New Delhi A/c S. Pargan Singh and Kamaljeet Kaur within 30 days of the passing of the award.
c) Cheque be deposited within thirty days herefrom under intimation to the petitioners. In case of default, the respondent No.3 shall be liable to pay further interest @ 12% per annum for the period of delay.
d) On the deposit of the award amount, the Branch Manager of UCO Bank, Patiala House Court, New Delhi is directed to prepare Fixed Deposit Receipts as ordered above and the balance amount be released to the petitioner No.2.
e) The interest on the fixed deposits shall be paid monthly by automatic credit of interest in the saving accounts of the petitioner No.2.
f) The withdrawal from the aforesaid account shall be permitted to the petitioner No.2 after due verification and the bank shall issue photo identity cards to the petitioner No. 2 to facilitate her identify.
g) No cheque book shall be issued to the petitioner No.2 without the permission of the court.
Suit No. 10/14 S. Pargan Singh & Ors. Vs.Sawinder Singh & Ors. Page No. 26 of 29
h) The original fixed deposit receipts shall be retained by the bank in safe custody. However, the original pass book shall be given to the petitioner No.2 along with the photocopy of the fixed deposit receipts. Upon the expiry of period of FDR the bank shall automatically credit the maturity amount in the saving account of the beneficiary.
i) The original fixed deposit receipts shall be handed over to the petitioner No.2 on the expiry of the period of the fixed deposit receipts.
j) No loan, advance, or withdrawal shall be allowed on the said FDRs without the permission of the court.
k) On the request of the petitioners, the bank shall transfer the saving account to any other branch/bank, according to the convenience of the petitioners.
l) The petitioners 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.
30. The petitioners 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, New Delhi along with copy of the award by Nazir and the second set be retained to the court for further reference. The Suit No. 10/14 S. Pargan Singh & Ors. Vs.Sawinder Singh & Ors. Page No. 27 of 29 photographs be stamped and sent to the bank. The petitioners shall also file the proof of residence and furnish the details of the bank account with the Nazir within a week. The petitioners shall file their complete address as well as address of their counsel for sending the notice of deposit of the award amount. APPORTIONMENT OF LIABILITY:
31. The respondents have not led evidence inspite of opportunity being granted, thus, respondent No.1 being the driver, the respondents No.2 and 3 being the owner are held jointly and severally liable. Respondent No.3 is liable to pay the compensation on behalf of the respondents. 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 the petition till its realization. The respondent No.3 shall deposit the award amount directly in the bank account of the claimants 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.
32. 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. The respondent No.3 shall deposit the award amount along with interest upto the date of notice of deposit to the claimants with a copy to their counsel and the compliance report shall be filed Suit No. 10/14 S. Pargan Singh & Ors. Vs.Sawinder Singh & Ors. Page No. 28 of 29 in the court along with proof of deposit of award amount, the notice of deposit and the calculation of interest on 13.8.2014.
An attested copy of the award be given to the parties (free of cost) and a copy be also sent to the Nodal Officer, UCO Bank, Patiala House. File be consigned to record room.
Announced in open court
th
on this 12 day of May, 2014 (GEETANJLI GOEL)
PO: MACT2
New Delhi
Suit No. 10/14
S. Pargan Singh & Ors. Vs.Sawinder Singh & Ors. Page No. 29 of 29