Delhi District Court
Jagwanti vs Vijay Kumar on 30 August, 2012
IN THE COURT OF SH. ANAND SWAROOP AGGARWAL:
P.O. MOTOR ACCIDENTS CLAIMS TRIBUNALS
NORTHEAST, KKD COURTS : DELHI
MACT No. 14/11
Unique Case Identification No: 02402C0005962011
1. Jagwanti
W/o Om Prakash
2. Om Prakash
S/o Bhim Singh
Both R/o Village & Post Tanda Heri,
Tehsil Bahadurgarh,
Distt. Jhajjar, Haryana ........Petitioners
Versus
1. Vijay Kumar
S/o Shri Balwan Singh
R/o H. NO. 669/13, Arya Nagar,
Bahadurgarh, Distt. Jhajjar,
Haryana. (OWNERCUMDRIVER)
2. The New India Assurance Company Ltd.
12/1, Jeevan Raksha Building,
Asaf Ali Road, New Delhi. .........Respondents
i) Date of Institution of Claim Petition : 10.01.2011
ii) Date when reserved for Orders : 07.08.2012
iii) Date of Order : 30.08.2012
iv) Final Order : Claim Petition Allowed Anand Swaroop Aggarwal P.O. MACT (NorthEast), Delhi MACT No. 14/11 Page 1/15 APPLICATION FOR COMPENSATION U/S 163 A MOTOR VEHICLE ACT,1988 A W A R D
1. CLAIM PETITON Petitioners have filed this claim petition as the LRs of deceased Deepak S/o Om Prakash with the averments that on 25.11.2010 at about 2.15 pm, deceased Deepak S/o Om Prakash was going on motorcycle bearing no. HR 13C 2775 from Anand Vihar to Bahadurgarh as a pillion rider and the said motorcycle was being driven by Mr. Vijay Kumar. As alleged, when they reached in front of Hanuman Mandir Near Shastri Park, Red Light, G.T. Road, Delhi an unknown vehicle had hit their motorcycle from behind and the said unknown vehicle run away from the spot. As alleged, deceased Deepak S/o Om Prakash received serious injuries in the accident and died on the spot due to such injuries. Regarding this accident, FIR no. 366/10 U/s 279/337/304A IPC was registered at New Usman Pur, Delhi. Postmortem of deceased Deepak was conducted at GTB Hospital Delhi. As per petitioners, deceased was of the age of 22 Anand Swaroop Aggarwal P.O. MACT (NorthEast), Delhi MACT No. 14/11 Page 2/15 years and was self employed earning Rs. 40,000/ per annum from the tuitions. As alleged, petitioners have suffered great pain, agony, mental torture and shock due to death of deceased and they have further lost love and affection and company of the deceased. Hence this claim petition claiming a sum of Rs. 20 lacs as compensation. 2. WRITTEN STATEMENT OF RESPONDENT NO. 1
DriverCumOwner as respondent no. 1 in his written statement has taken the stand that respondent no. 1 is not at all at fault and has not committed the accident. As alleged, vehicle bearing no. HR 13 C2775 , driven by respondent no. 1 was hit by unknown vehicle which run away from the spot and the deceased died due to injuries received in the said accident. Allegedly respondent no. 1 also received grievous injuries in the accident and has become disabled permanently. As per respondent no. 1 he was driving his motorcycle at a very normal speed following the traffic norms and also he was having a valid driving licence.
3. WRITTEN STATEMENT OF RESPONDENT NO. 2
In his written statement of respondent no. 2 has admitted that motorcycle bearing no. HR 13C 2775 was insured with New India Insurance Company for the period from 05.03.2010 to 04.03.2011 in Anand Swaroop Aggarwal P.O. MACT (NorthEast), Delhi MACT No. 14/11 Page 3/15 the name of Vijay Kumar (respondent no.1) vide policy no. 35380231090100203428. Also respondent no. 2 has taken, interalia, the preliminary objections to the effect that (i) petitioner was himself negligent and caused the accident due to his negligent act; (ii) respondent no. 2 shall not be liable to pay any amount of compensation if it is proved that driver of the offending vehicle was not holding an effective and valid licence to drive the offending vehicle at the time of the accident or has been disqualified from holding an effective driving licence as per provisions of Motor Vehicle Act 1988 and (iii) no notice of accident was given to respondent no.2 by petitioner or his family members.
4. ISSUES Ld. Predecessor of this Court framed following issues vide order dated 5.09.2011:
1. Whether deceased Deepak son of Sh. Om Prakash, died because of injuries sustained in motor accident which occurred on 25.11.2010 at about 2:15 p.m., at in front of Hanuman Mandir, Near Shastri Park, Red Light, G. T. Road, Delhi, within the jurisdiction of Police Station New Usman Pur involving vehicle i.e. motor cycle no. HR13C2775 being driven by respondent no.1, owned by respondent no.2 and insured with respondent no.3? OPP.
Anand Swaroop Aggarwal P.O. MACT (NorthEast), Delhi MACT No. 14/11 Page 4/15
2. Whether petitioners are entitled to compensation? If so, to what amount and from whom?
3. Relief.
5. EVIDENCE To substantiate his case on judicial file petitioner no. 2 has appeared in witness box as PW1 Om Parkash. PE was closed on 03.01.2012. Respondent's evidence was closed by court order on 02.04.2012 and no witness has been examined by respondents.
6. ARGUMENTS I have heard Sh. Dheeraj Kulshresta, Advocate for petitioner and Sh. Rajnish Kumar, Advocate for respondent no.
2. None has appeared for respondent no.1 to address arguments. Ld. Counsel for petitioner has relied upon case law reported as United India Insurance Co. Ltd., Hyderabad Vs. Bhanu Bee & Ors. 2012 (1) T.A.C. 270 (A.P.). On the other hand Ld. Counsel for respondent no. 2 has relied upon case laws reported as Oriental Insurance Co. Ltd. Vs. J. Ananda Murthy & Ors. IV (2011) ACC 833 (DB) and National Insurance Company Ltd. Vs. Sheela & Ors. IV (2011) ACC 95. I have gone through Anand Swaroop Aggarwal P.O. MACT (NorthEast), Delhi MACT No. 14/11 Page 5/15 material available on Judicial file very carefully. Case laws relied upon by counsels for parties perused with utmost regards.
7. My issuewise findings are as under :
ISSUE NO.1 Whether deceased Deepak son of Sh. Om Prakash, died because of injuries sustained in motor accident which occurred on 25.11.2010 at about 2:15 p.m., at in front of Hanuman Mandir, Near Shastri Park, Red Light, G. T. Road, Delhi, within the jurisdiction of Police Station New Usman Pur involving vehicle i.e. motor cycle no. HR13C2775 being driven by respondent no.1, owned by respondent no.2 and insured with respondent no.3? OPP. In his short submissions ld. counsel for respondent no.2 has submitted that petition filed by petitioners u/s. 163A MV Act is not maintainable in as much as PW1 Om Prakash in his evidence has deposed that his son deceased Deepak was earning Rs.3,500/ per month. It is submitted that section 163A MV Act applies only if victim was earning upto Rs.40,000/ per annum and in other cases (when income of victim is more than Rs.40,000/ p.a.) petition has to be filed u/s. 166 MV Act & not u/s 163A MV Act. Legally speaking no fault can be found in the submissions of ld. counsel for respondent no.2 to the effect that a petition u/s 163A MV Act is maintainable only in respect of victims having annual income upto Rs.40,000/ & all other claims are to be dealt with as per provisions of section 166 Anand Swaroop Aggarwal P.O. MACT (NorthEast), Delhi MACT No. 14/11 Page 6/15 MV Act. But what is to be noted is as to whether it can be said that in this case deceased/victim Deepak S/o Om Prakash was having annual income of more than Rs.40,000/. Petitioners in Claim Petition have alleged that deceased was having annual income of Rs.40,000/ from tuitions. Respondent no.2 has denied this stand of petitioners for want of knowledge. Consistent with the averments made in Claim Petition PW1 OM Prakash in his affidavit Ex. PW1/X has deposed that at the time of accident his son (deceased Deepak) was earning Rs.40,000/ per annum. However in his crossexamination PW1 Om Prakash has deposed that "........ My deceased son used to teach children. He used to earn Rs.3,500/ per month...........". It is on the basis of these depositions that ld. counsel for respondent no.2 has submitted that annual income of deceased Deepak was more than Rs.40,000/ p.a. and, thus, Claim Petition u/s. 163A MV Act is not maintainable.
Now what is pertinent to note is that what is material for the purposes of section 163A MV Act 1988 is the annual income of victim/deceased & not the monthly income. No question has been put to PW1 Mr. Om Prakash in his crossexamination regarding annual income of deceased Deepak. In the facts and circumstances of this case particularly keeping in view the stand of petitioners that Anand Swaroop Aggarwal P.O. MACT (NorthEast), Delhi MACT No. 14/11 Page 7/15 deceased Deepak used to teach children by taking tuitions, deceased Deepak cannot be said to be having regular/permanent income per month. In a year there are vacation months when often schools are closed and children during these months even does not take tuitions. Also no evidence whatsoever has been lead by respondent no.2 to prove that as a matter of fact victim/ deceased Deepak was earning more than Rs.40,000/ per annum. In this background it cannot be said with certainty that as a matter of fact annual income of victim/deceased Deepak was more than Rs.40,000/. In the totality of facts and circumstances of this case, annual income of deceased/victim Deepak can be taken to be Rs.40,000/ p.a. as alleged in the Claim Petition and deposed by PW1 Mr. Om Prakash through his affidavit. Thus it is held that Claim Petition u/Sec.163A MV Act is maintainable in this case.
PW1 Mr. Om Prakash in his affidavit Ex. PW1/X has deposed that his son Deepak met with an accident on 25/11/2010 with Motorcycle bearing no. HR 13C 2775 as a pillion rider and died. These depositions, despite after taking necessary permission u/s. 170 MV Act by respondent no.2 as respondent no.1 did not crossexamine the PW1 Om Prakash on being given opportunity, have gone Anand Swaroop Aggarwal P.O. MACT (NorthEast), Delhi MACT No. 14/11 Page 8/15 unchallenged from the side of respondent no.2. DAR Ex. PW1/4 (18 sheets) submitted by police does show involvement of motorcycle no. HR 13C 2775 in accident taking place on 25/11/2010 at about 2:15 pm in front of Hanuman Mandir Near Shastri Park Red Light, G. T. Road, Delhi.
As per DAR pillion rider Deepak/victim/deceased died on account of accident and driver of motorcycle namely Vijay Kr. (respondent no.1) also received injuries vide MLC No. A/5308/10. As per DAR insurance policy (POLICY SCHEDULE CUM CERTIFICATE OF INSURANCE Standard Two Wheeler Package Policy) bearing no.35380231090100203428 in the name of Vijay Kr. S/o Balwan Singh (respondent no.1) in respect of vehicle no. HR 13C 2775 stands verified. In fact Respondent no.2 has also admitted issuance of this policy. DL of respondent no.1 in respect of Motorcycle/Scooter dated 29/04/10 valid upto 28/04/2030 also stood verified. RC of said motorcycle stands also verified.
Also it is pertinent to note that policy of motorcycle involved in accident in question is Standard Two Wheeler Package Policy and such a policy covers a pillion rider on a two wheeler. Also in case law National Insurance Co. Ltd. Vs. Sheela & Ors. (supra) relied upon by Anand Swaroop Aggarwal P.O. MACT (NorthEast), Delhi MACT No. 14/11 Page 9/15 ld. counsel for respondent no.2 himself, it has been ruled/observed as under :
"5. Record shows that in this case the victim Davinder was the pillion rider of the driver Lakshman; there is no dispute to the fact that a pillion rider is covered as a "third party risk" and if the claim is otherwise found to be in order the appellant/Insurance Company is liable to pay compensation to the legal heirs of the deceased pillion rider. Further in terms of the notification. 25.3.1977 issued by the Tariff Advisory Committee, Insurance Companies have been made liable even in the case of pillion rider."
Thus respondent no.2 cannot deny its liability to pay compensation on account of death of Deepak S/o Om Prakash who was a pillion rider and died on account of accident involving a motor vehicle which was insured with respondent no.2. Factum of death of Deepak S/o Om Prakash by reason of motor accident is not in dispute.
In the case in hand an unknown vehicle had hit the motorcycle being driven by respondent no.1 and on which deceased Deepak S/o Om Prakash was a pillion rider. This being a petition u/s. 163A MV Act no rashness/negligence is to be proved on the part of offending vehicle and it is sufficient for grant of compensation u/s. 163A MV Act that there is an accident involving a motor vehicle and as a result Anand Swaroop Aggarwal P.O. MACT (NorthEast), Delhi MACT No. 14/11 Page 10/15 of such accident death or permanent disability results to the victim. In view of above detailed discussion, in my considered opinion, it can be safely concluded that deceased Deepak S/o Om Prakash died on account of injuries sustained in motor accident which occurred on 25/11/2010 at 2:15 pm in front of Hanuman Mandir, Near Shashtri Park Red Light G. T. Road Delhi involving motorcycle no. HR 13C 2775 being driven owned by respondent no.1 and insured with respondent no.2. Issue no.1 is accordingly decided in favour of petitioners.
ISSUE No.2 Whether petitioners are entitled to compensation? If so, to what amount and from whom?OPP Petitioners are parents of deceased Deepak S/o Om Prakash. Deceased was aged about 22 years and earning Rs.40,000/ p.a. by teaching children/tuitions. Deceased Deepak S/o Om Prakash was unmarried. PW1 Om Prakash has deposed that "....... He was contributing his entire income for household expenses.....". Address of deceased Deepak on driving licence Ex. PW1/1 and Residence Certificate Ex. PW1/3 is the same as that of petitioners. Dependency of petitioners on the deceased Om Prakash has not be Anand Swaroop Aggarwal P.O. MACT (NorthEast), Delhi MACT No. 14/11 Page 11/15 disputed/controverted specifically in the crossexamination of PW1 Om Prakash. It has already been observed that this Claim Petition is very much maintainable u/s. 163A MV Act as deceased was having annual income of Rs.40,000/. Being dependents on the deceased Deepak, petitioners are entitled to compensation on account of death of deceased Deepak.
Date of birth of deceased Deepak as per Driving licence Ex. PW1/1 and Secondary School Examination Certificate Ex. PW1/2 is 19/12/1988. On the date of accident (25/11/2010) deceased was aged about 22 years. Election I card Mark A of petitioner no.2 Om Prakash mentions his age as on 1.1.1994 as 34 years and Election I card Mark B mentions the age of petitioner no.1 Jagwanti as 32 years as on 1.1.1994. On the date of accident age of petitioner no.1 comes out to be approximately 48 years and that of petitioner no.2 as 50 years. Here, as deceased was younger in age than the petitioners, multiplier is to be determined keeping in view the age of the parents and age of mother/petitioner no.1, being lower than that of petitioner no.2/father, deserves to be taken into account for determining the multiplier for computing compensation u/s. 163A MV Act. As per second schedule multiplier for the age of 48 years is 13. Compensation payable to Anand Swaroop Aggarwal P.O. MACT (NorthEast), Delhi MACT No. 14/11 Page 12/15 petitioner u/s. 163A MV Act as per The Second Schedule comes out to be as per following calculations :
(I) Rs.40,000/ x 13 = Rs.5,20,000.00
() less 1/3 in consideration of
expenses which the victim
would have incurred towards
maintaining himself had he
been die = Rs.1,73,333.00
Rs. 3,46,667.00
(+) Plus General Damages:
(i) Funeral Expenses = 2,000.00
(ii) Loss of Estate = 2,500.00
Rs.
3,51,167.00
Rounded to Rs.3,51,200.00
As the vehicle involved in accident was insured by respondent no.2, the liability is that of respondent no.2 to pay the above compensation to petitioners. Issue No.2 stands decided accordingly.
8. RELIEF Award is passed directing Respondent No. 2, The New India Assurance Company Ltd. to pay to the petitioners the award amount of Rs. 3,51,200/ in equal proportions. It is further directed that Rs.1,00,000/ of share of award amount of each of the petitioners shall be kept in FDR for a period of 3 years.
Anand Swaroop Aggarwal P.O. MACT (NorthEast), Delhi MACT No. 14/11 Page 13/15
(i) The respondent no. 2, insurance company is directed to deposit the award amount by way of cross cheques in terms of above order, in UCO Bank, Karkardooma Branch, through Nodal Officer within thirty days from today in the saving account of the petitioners.
(ii) Cheques be deposited within thirty days herefrom under intimation to the petitioners. In case of default, further penal interest shall begin to accrue @ 12% p.a thereon, for each day default.
(iii) On the deposit of the award amount, the Branch Manager of UCO Bank, Karkardooma Branch is directed to prepare Fixed Deposit Receipts as ordered above and the balance amounts be released to the petitioners.
(iv) The interest on fixed deposit shall be paid quarterly by automatic credit of interest in saving account of the petitioners.
(v) The withdrawal from the aforesaid account shall be permitted to the petitioners after due verification and bank shall issue photo identity cards to the petitioners to facilitate their identities.
(vi) No cheque book shall be issued to the petitioner without the permission of the court.
(vii) The original FDRs shall be retained by the bank in safe Anand Swaroop Aggarwal P.O. MACT (NorthEast), Delhi MACT No. 14/11 Page 14/15 custody. However, the original pass book shall be given to the petitioners along with photocopy of the FDRs.
(viii) The original FDRs shall be handed over to the petitioners on the expiry of the period of the FDRs.
(ix) No loan, advance, or withdrawal shall be allowed on the said FDRs without permission of the court.
(x) On the request of the petitioners, the bank shall transfer the saving account to any other branch of State Bank of India, according to the convenience of the petitioners.
(xi) The petitioners shall furnish all the relevant documents for opening of saving bank account and FDRs to the Nodal Officer of the UCO Bank, KKD Courts, Delhi.
9. Attested copies of the award be furnished to the concerned parties and be also sent to the Nodal Officer, UCO Bank, KKD Branch, Delhi for compliance. File be consigned to record room. Pronounced in the open court on (Anand Swaroop Aggarwal) 30.08.2012 P.O. MACT(NorthEast) Delhi Anand Swaroop Aggarwal P.O. MACT (NorthEast), Delhi MACT No. 14/11 Page 15/15