Delhi District Court
Smt. Kamlesh Kumari vs Sh. Sukhdarshan Jindal on 26 April, 2014
1
IN THE COURT OF SH.HARISH DUDANI
JUDGE:MOTOR ACCIDENT CLAIMS TRIBUNAL 1 NEW DELHI
SUIT NO.86/11
DATE OF INSTITUTION:10.3.2010
1. Smt. Kamlesh Kumari
W/o Late Sh. Jay Prakash
R/o Mangal Pura, Sarai Tarain
Sambhal District, Muradabad, UP .........Petitioners
Versus
1. Sh. Sukhdarshan Jindal
S/o Sh. Hari Chand Jindal
R/o RZ438/13A, Tughlakabad Extn.
New Delhi
2. Sh. Mohan Singh
S/o Sh. H. N. Singh
R/o S6, D464,
Nav Jeevan Camp
Govind Puri, New Delhi
Also at: 464, R Block
Nav Jeevan Camp, Govind Puri, New Delhi
3. The Oriental Insurance Company Ltd.
2/1314, Sarai Jullena
New Delhi25 .............Respondents
Final Arguments heard on: 11.04.2014
Award reserved for : 26.04.2014
Date of Award : 26.04.2014
2
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 petition are that on 22.12.2009 Sh. Mohit Kumar Gupta was going on his motorcycle no. DL5SAA4288 and at about 5.47 PM he reached at the crossing of Mathura Road and Bhairon Road and while he was crossing the traffic signal he was hit by bus no.DL1PB3927 being driven in a rash and negligent manner by respondent no.2 as a result of which Sh.Mohit Kumar Gupta fell down and he was crushed under the tyres of offending bus and he expired at the spot. The body of Sh. Mohit Kumar Gupta was taken to Dr. RML hospital. It is stated that the case vide FIR no. 295/09, under Section 279/304A IPC was registered at PS Tilak Marg.
3. It is stated that Sh. Mohit Kumar Gupta was 25 years of age at the time of accident and he was working as Contract Sales Executive with HDFC Bank Ltd. and was earning a sum of Rs.10,000/ 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.2 and the vehicle was owned by respondent no.1 and insured with respondent no. 3 and as 3 such all the respondents are jointly and severally liable to pay compensation to the petitioners. It is prayed that Rs.Fifty Lacs alongwith interest @ 18% per annum be awarded as compensation in favour of petitioner and against the respondents.
4. Respondent no.1 has not filed reply despite opportunities.
5. Respondent no.2 did not appear despite service by publication and was proceeded exparte on 27.11.2012.
6. Respondent no.3 has filed written statement and has contested the petition on various grounds. Respondent no.3 has denied the averments made on merits. It is stated that the vehicle no. DL1PB3927 was insured with respondent no.3 vide policy no.272100/31/2010/214 for the period w.e.f. 24.04.2009 to 23.4.2010. It is denied that respondent no.3 is liable to pay compensation.
7. From the pleadings of parties following issues were framed on 27.11.2012:
1. Whether the decased Mohit Kumar Gupta sustained fatal injuries int he accident which occurred on 22.12.2009 at about 5.47 pM at Mathura Road, Bhairon Road T point, Red Light, New Delhi caused by rash and negligent driving of vehicle no.DL1PB3927 driven by respondent no.2, owned by respondent no.1 and insured with respondent no.3?
2.) Whether the petitioner is entitled for compensation? If so, to what amount and from whom?4
3.)Relief.
8. In support of her case the petitioner examined Sh. Manoj Singh Negi, Ahlmad/LDC in the court of Navita Kumar Bagha, LD. MM, New Delhi as PW1 who proved the certified copy of challan, order sheet and evidence Ex.PW1/1(colly) in case titled as State v. Mohan Singh, FIR no.295/09, under Section 279/304A IPC, PS Tilak Marg.
9. Petitioner examined Sh. Subhash Chand an eyewitness of the accident as PW2 who stated that on 22.12.2009 he was going to Nizamuddin Railway Station from Connaught Place on his scooter and Sh. Mohit Gupta was on his motorcycle and on red light of T point, Mathura Road Bhairon Road they were waiting for turning the light green and after the light turned green they proceeded ahead and suddenly in a rash and negligent manner the driver of bus no. DL1PB3927 turned the bus thereby hitting the motorcycle of Sh. Mohit Gupta as a result of which Sh.Mohit Gupta fell on road and was hit by rear wheel of the said bus and died at the spot. PW2 further stated that Sh. Mohit Gupta died due to rash and negligent driving of driver of bus no.DL1PB3927.
10.Petitioner examined herself as PW3. PW3 tendered her evidence by way of affidavit Ex. PW3/A and proved copy of ration card Ex.PW3/1, copy of her election identity card Ex. PW3/2, copy of election identity card of her husband Ex.PW3/3, copy of driving licence of deceased Ex. PW3/4, 5 death certificate Ex. PW3/5, high school certificate and mark sheet of her son Ex. PW3/6(colly), intermediate examination certificate and mark sheet Ex.PW3/7(colly), mark sheets of B.Com. of deceased Ex.PW3/8(colly), mark sheet of M.Com of deceased Ex.PW3/9, statement of marks of MBA of deceased Ex.PW3/10(colly).
11.Petitioner examined Sh. Deepak Gandhi, Territory Manager, HDFC Bank Ltd. as PW4. PW4 proved the attested copy of fixed term contract Ex.PW4/1 and the attested copy of pay statement of Sh. Mohit Kumar Gupta from April 2009 to March 2010 Ex. PW4/2. Petitioner thereafter closed her evidence.
12.On the other hand respondent no.3 examined Sh. Om Prakash, Record Clerk from Sheikh Sarai Tranport Authority as R3W1. R3W1 proved the record in respect of driving licence no.C03111998109074 issued in the name of Sh. M.L.Singh as Ex.R3W1/1(colly). R3W1 stated that as per record brought by him the licence was issued on 10.04.1994 and was lastly renewed on 27.11.2007 and was valid till 26.11.2010 and it was issued for Heavy Transport Vehicle.
13.Respondent no.3 examined Ms. Pallavee Thakral, Administrative Officer of the insurance company as R3W2. R3W2 tendered in evidence her affidavit Ex.R3W2/A. R3W2 proved the report of investigator Ex.R3W2/1, report of authority Ex.R3W2/2, copy of driving licence of respondent no.2 6 mark A, copy of notice under XII Rule 8 CPC issued to driver and owner Ex.R3W2/3 and R3W2/4, postal receipts of the same Ex.R3W2/5 and R3W2/6 and the certified copy of insurance policy Ex.R3W2/7(colly).
Respondents thereafter closed their evidence.
14.I have heard the Ld. counsel for the parties and perused the record. My findings on specific issues are as follows.
ISSUE NO. 1
15.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.DL1PB3927 by its driver.
16.To determine the negligence of driver of offending vehicle it has been held in National Insurance Company Ltd. V/s Pushpa Rana & 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 7 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."
17.The case of the petitioners is that on 22.12.2009 Sh. Mohit Kumar Gupta was going on his motorcycle no. DL5SAA4288 and at about 5.47 PM he reached at the crossing of Mathura Road and Bhairon Road and while he was crossing the traffic signal he was hit by bus no.DL1PB3927 being driven in a rash and negligent manner by respondent no.2 as a result of which Sh.Mohit Kumar Gupta fell down and he was crushed under the tyres of offending bus and he expired at the spot. The body of Sh. Mohit Kumar Gupta was taken to Dr. RML hospital. It is stated that the case vide FIR no. 295/09, under Section 279/304A IPC was registered at PS Tilak Marg. The petitioners examined Smt. Kamlesh Kumari mother of deceased as PW3 who adduced evidence by way of affidavit Ex.PW3/A. In her crossexamination PW3 stated that she is not an eyewitness of the accident. The petitioners examined an eyewitness of the accident Sh. Subhash Chand as PW2 who stated that on 22.12.2009 he was going on his scooter and Sh. Mohit Kumar Gupta was going on his motorcycle and when the light turned green for them at T point, 8 Mathura Road, Bhairon Road, they started proceeding and in the meantime the bus bearing no. DL1PB3927 hit the motorcycle of Sh. Mohit Gupta as a result of which Sh. Mohit Gupta fell down and sustained injuries and he expired at the spot and accident had taken place due to rash and negligent driving of driver of bus. In the crossexamination by respondent no.1, PW2 denied suggestion to the effect that the bus no.DL1PB3927 has been falsely implicated in this case. In the cross examination by respondent no.3, PW2 stated that he had noted the number of offending bus and the right side middle portion of the bus had hit the motorcycle of deceased. The petitioner has proved the copies of criminal record Ex.PW1/1(colly) which consist of copy of FIR no. 295/09, under Section 279/304A IPC, PS Tilak Marg, statement of Sh. Hukam Chand on which asal tehrir was prepared, copy of site plan, seizure memo of motorcycle no. DL5SAA4288, copy of notice under Section 133 Motor Vehicle Act, copy of seizure memo of bus no. DL1PB3927, copy of RC of offending vehicle, copy of insurance policy of offending vehicle, copy of death report of Sh.Mohit Kumar Gupta, copy of postmortem report of Sh. Mohit Kumar Gupta prepared at Lady Hardinge Medical College and Smt. S. K. Hospital. As per the postmortem report the cause of death is head injury consequent upon blunt force impact. As per charge sheet respondent no.2 has been charge sheeted for the 9 offences under Section 279/304A IPC. Respondents have not proved their version of accident. Thus in view of the testimony of PW2 and PW3 and documents on record, the negligence of respondent no.2 has been prima facie proved. As such issue no.1 is decided in favour of the petitioners and against the respondents.
ISSUE NO.2
18.As issue no.1 is decided in favour of the petitioner, she is entitled to compensation.
19.The present petition was filed by father of deceased and petitioner/mother of deceased Sh. Mohit Kumar Gupta. Father of deceased expired during pendency of the petition on 27.09.2012 and his name was deleted from array of parties.
20. It is stated that the deceased was 25 years of age and he was unmarried at the time of accident. In view of judgment of Hon'ble 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. Smt. Kamlesh Kumari, mother of deceased appeared in witness box as PW3 and adduced evidence by way of affidavit Ex.PW3/A. In order to prove the age of deceased the petitioner has filed on record the copy of driving licence of deceased Ex.PW3/4 as per which the date of birth of deceased was 08.07.1985. Hence the deceased was 10 around 24 years and 4 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.
21. It is stated that Sh. Mohit Kumar Gupta was working as Contract Sales Executive with HDFC Bank Ltd. and was earning a sum of Rs.10,000/ per month. In order to prove the income of deceased the petitioner has examined Sh. Deepak Gandhi, Territory Manager, HDFC Bank Ltd. as PW4 who stated that Sh. Mohit Kumar Gupta was working as Senior Sales Executive with their bank on contract basis and the copy of fixed term contract is Ex.PW4/1 and the pay statement of Sh. Mohit Kumar Gupta from April 2009 to March 2010 is Ex.PW4/2. As per fixed term contract Ex. PW4/1 Sh.Mohit Gupta was to be paid salary of Rs.9500/ and the conveyance allowance of Rs.2500/ per month. Hence the income of deceased shall be taken as Rs.9500/ basic pay and Rs.2500/ conveyance allowance i.e. in total Rs.12,000/ per month.
22.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 11 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."
23.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.12,00050% of Rs.12,000/=Rs.6,000/ per month.
24.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."12
25. The age of the petitioner has been taken as 24 years and 4 months at the time of accident. Hence after addition of 50% income of deceased would be Rs.6,000/+50% of 6,000/=Rs.9,000/per month. After applying the multiplier of 18, the total loss of dependency is computed to be as Rs.=Rs.9,000/x12x18/= Rs.19,44,000/. 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. 19,44,000/
Funeral Expenses : Rs. 25,000/
Loss of Estate : Rs. 10,000/
Loss of Love and Affection : Rs. 25,000/
TOTAL : Rs. 20,04,000/
RELIEF
26.The petitioner is thus awarded Rs.20,04,000/(Rs.Twenty Lacs Four Thousand 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.
27.For safeguarding the compensation amount from being frittered away by 13 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:
28. 10% of the award amount shall be released to petitioner 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.
29.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.Kamlesh Kumari.
30.The interest on the fixed deposits shall be paid monthly by automatic 14 credit in the saving accounts of the claimants/beneficiary.
31.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.
32.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.
33.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.
34.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.
35.Bank shall transfer Savings Account to any other branch/bank according to her convenience.
36.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.
37.Nazir to report in case the cheque is not deposited within 30 days of the 15 passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself.
38.The insurer/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.
39.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.
40.The insurer/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 16.7.2014.
16APPORTIONMENT OF LIABILITY:
41. Respondent no.3 has taken defence that the driving licence of driver was not valid at the time of accident. In order to prove its defence respondent no.3 has examined Sh. Om Prakash, Record Clerk from Sheikh Sarai, Transport Authority as R3W1 who proved the record in respect of driving licence no.C03111998109074 Ex. R3W1/1(colly) and stated that as per record the driving licence was issued on 10.04.1994 and was lastly renewed on 27.11.2007 and was valid till 26.11.2010 and the same is issued for heavy transport vehicle. During the course of arguments the Ld. Counsel for respondent no.3 stated that as per driving licence verification report Ex.R3W2/1 the driving licence of respondent no.2 was valid at the time of accident. Respondent no.3 has not proved any other breach of terms and conditions of policy. Thus, respondent no.1 being the owner, respondent no.2 being the driver 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 directed to note the particulars of the award amount in the register today itself. 17 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 26.4.2014 PO/MACT01, New Delhi.