Delhi District Court
Smt. Mohinder Kaur vs Sh. Bir Singh S/O Sh. Chote Lal on 20 September, 2012
IN THE COURT OF SHRI SANJAY KUMAR AGGARWAL
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNAL
(WEST): DELHI
Case NO.: 671/08
1. Smt. Mohinder Kaur
w/o Late Sh. Santokh Singh Sehgal
2. Sh. Manmohan Singh
s/o Late Sh. Santokh Singh Sehgal
Both r/o 7/27, Subhash Nagar, New Delhi
3. Sh. Avtar Singh
s/o Late Sh. Santokh Singh Sehgal
R/o D-83, Ground Floor, Fateh Nagar,
Jail Road, New Delhi
4. Ms. Rajinder Kaur
W/o Sh. Karanjeet Singh
d/o Late Sardar Santokh Singh Sehgal
R/o E-1/14, Lajpat Nagar, Near Rampul,
New Delhi
.......Petitioner
VERSUS
1. Sh. Bir Singh s/o Sh. Chote Lal
r/o Village Gumma, Sector-6,
Solan, Himachal Pradesh- 173212
Also at:
Village Khirp, Tehsil & Distt. Solan,
Himachal Pradesh (driver)
2. Sh. Harkishan Thakur
s/o Sh. Sher Singh Thakur
R/o Village Gumma, Sector-6,
Solan,Himachal Pradesh-173212 ( owner)
3. New India Assurance Company Ltd.
Address BMC House, Connaught Place,
New Delhi ( insurer)
......... Respondents
Suit No.671/08 Page No.1/12
Date of Institution : 05/09/2007 Date of reserving order/judgment : 20/09/2012 Date of pronouncement : 20/09/2012 AWARD
1. This Judgment-cum-Award shall decide the petition under Section 166 and 140 of Motor Vehicle Act 1988 as amended up to date (hereinafter referred as Act) filed by petitioner for grant of compensation for the fatal injuries suffered by Late Sh. Sardar Santokh Singh in the road vehicular accident.
2. The case of the petitioner is that on 15/06/05 at about 11.00 a.m while the deceased was moving on his cycle and while he reached near Major Sudesh Marg, Red Light, Rajouri Garden, the meantime the offending vehicle a Canter bearing No. HP-15-1595 which was being driven by its driver/ respondent No.1 in a rash and negligent manner hit the cycle of deceased . Resultantly, the deceased got fatal injuries. In total, the petitioners have claimed Rs. 25,00,000/- as compensation on account of the fatal injuries sustained by deceased in the accident.
3. The written statement was filed by respondents No. 1 & 2 wherein they categorically denied the rash and negligent aspect and also termed the contents of the petition to the false one.
4. The written statement was filed by respondent no.3, insurance company wherein it was admitted that the offending vehicle was insured with it as on the date and time of accident but denied the other contents of the petition.
5. On the pleadings of the parties following issues arise were framed for consideration on 13/10/10.
1.Whether the deceased suffered fatal injuries in an accident that took place on 15.06.2005 at about 11.00 AM involving Canter Truck No. HP-15-1595 driven by respondent No.1, owned by respondent No.2?
2. Whether the petitioner is entitled to any compensation, if so, to what amount and from whom?
3. Relief.
Suit No.671/08 Page No.2/126. In order to establish its claim, the petitioner No.1 being the wife of the deceased examined herself as PW-1. The respondents did not lead any evidence in their defence.
7. I have thoroughly gone through the testimony of the witnesses and perused the record. I have also given thoughtful consideration to the arguments addressed by learned counsel for the petitioner and the learned counsel for the insurer. My findings on various issues are as under :-
ISSUE NO. 18. Since the present petition is under Section 166 of M V Act, it was the bounden duty of the petitioner to prove that the respondent No.1 was rash and negligent in driving the vehicle at the time of accident.
9. The petitioners have also filed the certified copy of the criminal case on record i. e the copy of FIR etc. bearing No. 584/05, P. S. Rajouri Garden, u/s 279/304-A IPC.
10. PW-1 has explained the mode and manner of the accident in their affidavits, Ex. PW1/A to the effect that on the date of accident while the deceased was moving on his cycle and while he reached near Major Sudesh Marg, Red Light, Rajouri Garden, the meantime the offending vehicle a Canter bearing No. HP-15-1595 which was being driven by its driver/ respondent No.1 in a rash and negligent manner hit the cycle of deceased . Resultantly, the deceased got fatal injuries . The cross-examination carried on by the respondents are not suggestive of anything which may discard the claim of the petitioners that the driver of the offending vehicle was rash and negligent at the time of accident.
11. To determine the negligence of the driver of the offending vehicle, I am being guided by the judgment of Hon'ble High Court of Delhi in 2009 ACJ 287, National Insurance Company Limited Vs. Pushpa Rana wherein in the Hon'ble High Court held that in case the petitioner files the certified copy of the criminal record or the criminal record showing the competition of the investigation by the police or the issuance of charge sheet under section 279/304 A IPC or the certified copy of the FIR or in addition the recovery memo on the mechanical inspection report of the offending vehicle, these documents are sufficient proof to reach to the conclusion that the driver was negligent. It was further held Suit No.671/08 Page No.3/12 that the proceedings under the Motor Vehicles Act are not akin to the proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Further, in Kaushnumma Begum and others v/s New India Assurance Company Limited, 2001 ACJ 421 SC the issue of wrongful act or omission on the part of 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 injuries or death to a human being or damage to property would made the petition maintainable under section 166 and 140 of the Act. It is also settled law that the term rashness and negligence has to be construed lightly while making a decision on a petition for claim for the same as compared to the word rashness and negligence as finds mention in the Indian Penal Code. This is because the chapter in the Motor Vehicle Act dealing with compensation is a benevolent legislation and not a penal one.
12. Further recently the Hon'ble High of Delhi in MAC App. No.200/2012 in case titled as United India Insurance Co. Ltd. Vd. Smt. Rinki @ Rinku & Ors decided on 23/07/2012 by Hon'ble Mr. Justice G. P. Mittal, held as under:-
"The Claims Tribunal was conscious of the fact that negligence is a sine qua non to a Petition under Section 166 of the Motor Vehicles Act, 1988(the Act). It is also true that the proceedings for grant of compensation under the Act are neither governed by the criminal procedures nor are a civil suit. A reference may be made to a judgment of the Supreme Court Bimla Devi and Ors. V Himachal Road Transport Corporation and Ors, (2009) 13 SC 530 where it was held as under:
"15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of any accident caused by a particular bus in a particular manner may not be possible to be done by the claimant. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied."
13. Therefore, reading all the documents filed by the petitioners as a whole it is clear that respondent No.1 was driving the vehicle in a rash and negligent manner.
14. The issue No:1 therefore, stands in favour of the petitioners and against the respondents.
Suit No.671/08 Page No.4/12COMPENSATION :
15. No age proof of deceased has been filed on record. However the age mentioned in the post mortem report of the deceased was 70 years. Accordingly, the age of the deceased is taken as 70 years as on the date of accident.
16. No appreciation towards future prospects on the monthly income of deceased for balancing the inflation is required in this case as deceased was more than 50 years of age.
17. The deceased was stated to be Tailor by profession and was earning Rs. 20,000/- per month. No income or profession proof filed or proved on record. In these circumstances, the income of the deceased can very well be assessed on the basis of the chart available in the Minimum Wages Act. The date of accident was 15/06/05 on which the minimum wages for the relevant period were Rs. 3044/-
18. Ld. Counsel for insurer stated that deceased had left four petitioners. It is further submitted that petitioners No.2,3 & 4 were non- dependent and only petitioner No.1 was dependent upon deceased and, therefore, requested that deduction be made accordingly.
19. Regarding deduction to be make for living and personal expenses of deceased from this income, in the case of Smt. Sarla Verma (Supra), the Hon'ble Supreme Court of India has laid down certain guidelines. It was held that the same should be 1/3rd where the family members are 2 to 3, 1/4th where the family members are 4 to 6 and 1/5th where the number of dependent of family members exceeds six. In case of bachelor 50% deduction was directed to be made towards the living expenses as it was assumed that the bachelor always tends to Judgment of the Hon'ble Supreme Court of India in the case of Smt. Sarla Verma (Supra)end more on himself.
20. On a careful perusal of the , it is clear that the ratio which came out in the said judgment was silent for the deduction of personal expenses for the cases where the deceased has left his surviving family members who fall under the category of both the "dependent" and "non dependent" persons. Though of course in case of bachelor, 50% deduction is to be made towards personal and living expenses, but the Hon'ble Supreme Court has also mentioned reasons for the same to be as the bachelor tends to spend more on himself. Now the question is as to how to assess the deduction from Suit No.671/08 Page No.5/12 personal expenses for ascertaining compensation, where the the number of members of the deceased fall under both the categories of "Dependent" and "Non Dependent"
person in order to determine a just compensation. In this regard, I am being guided by the following judgments of Hon'ble Supreme Court of India as well the Hon'ble High Courts.
21. In pre independence era, a division bench of Lahore High Court titled as Secretary of State Vs Gokal Chand ( AIR1925, Lah 630), Hon'ble Justice Sh. Shadi Lal CJ while categorizing the compensation on the basis of dependency and non dependency held as under:-
" The law contemplates two sorts of damages: the one is the pecuniary loss to the estate of the deceased resulting from the accident; the other is the pecuniary loss sustained by the members of his family through his death. The action for the latter is brought by the legal representatives, not for the estate, but as trustees for the relatives beneficially entitled; while the damages for the loss caused to the estate are claimed on behalf of the estate and when recovered from part of the assets of the estate".
22. Further, the Hon'ble Supreme Court of India in case titled as Gobald Motor Service Vs R.M.K. Veluswami, MANU/SC/0016/1961 explained the aforesaid modus for compensation for dependent and non dependent category. Referring to Sections 1 and 2 of the Fatal Accidents Act ( Section 1A and 2 after 1951 amendment to the said Act), the Supreme Court pointed out the difference between damages recoverable under the said two Sections. It was held that while under Section 1 (New Section 1A) damages are recoverable for the benefit of the persons mentioned therein, under Section 2, compensation goes to the benefit benefit of the estate; whereas under Section 1, damages are payable in respect o loss sustained by the persons mentioned therein, under Section 2 damages can be claimed inter alia for loss of expectation of life and loss to the estate. The Hon'ble Supreme Court held that persons who claim under Section 1 and 2 need not be the same as the claims under the said two Sections are based upon difference causes of action.
23. It was further explained by the Hon'ble Supreme Court of India that, where the claim of the L.rs of the deceased, who was not dependent of the deceased, the basis for assessing compensation for loss to the estate is the savings made by the deceased. The Hon'ble Supreme Court of India elaborated the principle for determining the loss of estate as under:-
Suit No.671/08 Page No.6/12"The procedure for determination of loss of estate is broadly the same as the procedure for for determination of the loss of dependency. Both involve ascertaining the multiplicand and captialising it by multiplying it by an appropriate multiplier. But the significant difference is in the figure arrived at as multiplicand in cases where the claimants, who are dependents claim loss of dependency, and in cases where the claimants, who are not dependents claim loss to estate. The annual contribution to the family constitutes the multiplicand in the case of loss of dependency, whereas the the annual savings of the deceased becomes the multiplicand in the case of loss of estate. The method of selection of multiplier is however the same in both cases.''
24. The law in this regard is also well explained by the judgment of Hon'ble Karnataka High Court in the case of A. Manavalagan Vs. A Krishnamurthy and Ors, 2005 ACJ 1992. The said judgment passed by Hon'ble Karnataka High Court Was relied upon by the Hon'be High Court of Delhi in a case titled Dinesh Adhlak Vs Pritam Singh MAC.APP. No. 253/2007 dated 15.01.2010 with positive note of its acceptance and applicability in Delhi.
24. Therefore from the aforesaid discussion, it is obvious that even though the deceased has left non dependent family members besides dependents, the non dependent family members shall also be entitled to be compensated for the loss to the estate of the deceased. As already said that not only the deceased was expected to incur expenses for his personal livelihood and to maintain, he was also expected to make savings. Accordingly, the non dependent shall be entitled to compensation from the said savings made by deceased as loss of estate.
25. The said categorization of expenses incurred upon family members and savings made by deceased is not required where the deceased had left L.Rs who were all dependent upon him, because in such an eventuality, finally the savings of the deceased shall also fall to the share of the dependents beside the pecuniary loss suffered by them and therefore it become futile exercise to assess savings of the deceased. Therefore, on general assumption it can be said that the deceased might have been spending 1/3rd of income on himself and 1/3rd of income on his wife and 1/3rd would have been saved by him. The saved 1/3rd in this case can be well treated as a loss to the estate for both the dependent wife as well as non dependent son.
26. In view of the aforesaid discussion, since the petitioners No. 2,3 & 4 were non- dependent and petitioner No.1 was dependent upon the deceased accordingly, I hereby Suit No.671/08 Page No.7/12 deduct 1/3rd of the amount from income of the deceased towards his personal and living expenses in terms of the judgment of Hon'ble Supreme Court of India in case of Sarla Verma (supra).
27. Therefore, after deducting one-third towards personal expenses, the loss of dependency per month comes out to be Rs. 3044/- - Rs. 1014.6 p. = Rs. 2029.4 p. Now, after capitalizing the annual loss of dependency with number of years purchase i.e multiplier of 5. The total loss of dependency comes out to (Rs. 2029.4 p. X 12 X 5) =Rs. Rs. 1,21,764/-.
28. Regarding loss of love and affection, I am guided by the judgment of Hon'ble High Court of Delhi in MAC APP.757/11 in case titled as 'Cholamandalam MS General Insurance Co. Ltd. Vs Ram Kumar & ors' decided on 19/07/2012 by Hon'ble Mr. Justice G. P. Mittal wherein it was held as under:-
"8. It is urged that the compensation of Rs. 1,00,000/- awarded towards loss of love and affection is excessive. Normally, when full compensation towards loss of dependency is granted only a nominal sum is awarded towards loss of love and affect. The trend of the High Court and the Supreme Court is to grant a sum of Rs.25,000/- under this head. Such a sum was granted by the Supreme Court in Sunil Sharma V Bachitar Singh(2011)11 SCC 425 and in Baby Radhika Gupta v. Oriental Insurance Company Limited(2009) 17 SCC 627 towards love and affection. However, in a later judgment in Amrit Bhanu Shali & Ors. v. National Insurance Company Ltd. & Ors(2012) 6 SCALE 1, in case of a death of bachelor, a compensation of Rs. 1,00,000/- was awarded by the Supreme Court. In the circumstances, I am not inclined to interfere in the award of compensation of Rs 100,000/- towards love and affection.
9. The Claims Tribunal awarded a sum of Rs. 25,000/- towards funeral expenses, which in the absence of any evidence as to the actual expenditures is on the higher side. The same is reduced to Rs. 10,000/-. The Claims Tribunal did not award any compensation towards loss to estate. I make a provision for a sum of Rs. 10,000/-".
29. In terms of the aforesaid judgment passed by the Hon'ble High Court of Delhi, I award Rs. 10,000/- towards funeral charges; Rs. 1,00,000/- towards love and affection; Rs. 10,000/- for loss of consortium and Rs. 10,000/- towards loss of estate. Therefore, in total, I hereby award a sum of Rs. 2,51,764/- in favour of the petitioners and against the respondents.
30. The petitioner had not lead evidence for a considerable period as is clear from observation made by this court on 25/11/07. Accordingly, the petitioner shall not be entitled for interest w.e.f. 25/11/11 till 20/09/2012.
Suit No.671/08 Page No.8/12RELIEF:o
31. I award a sum of Rs. 2,51,764/-(Rupees Two Lakhs Fifty One Thousand Seven Hundred Sixty Four Only), as compensation with interest at the rate of 7.5% per annum including interim award, if any from the date of filing the petition i.e., 05/09/07( excluding interest from 25/11/11 till 20/09/2012) till the date of its realisation in favour of the petitioners and against the respondents on account of their liability being joint and several. Out of the awarded amount, petitioner No.1 shall have share of 70% of award amount whereas petitioners No.2 to 4 shall be entitled to get 10 % each share of the award amount.
32. Acting on the guidelines issued by Hon'ble Supreme Court of India G.M Kerala State Road Transport Corporation v/s S. Susamma Thomas (1994) 2 SCC 176 in order to avoid the money being frittered away, fifty percent(50%) of the amount awarded to petitioner No.1 (wife of deceased) shall be kept in 2 FDRs of almost equal amount in a Nationalized Bank for a period of one and two years respectively. In case any petitioner/petitioners is/ are minor/minors, the entire amount awarded to petitioner/ petitioners shall be kept in FDRs in a nationalized bank till he/she attain/ attains the age of majority or for a period of five years whichever is later. No loan or advance shall be allowed against the said fixed deposit. Petitioner No.1 can withdraw the interest quarterly from the said FDRs. The minor petitioners, if any can withdraw the interest quarterly through their mother/ petitioner No.1.
APPORTIONMENT OF LIABILITY :
33. The respondent No: 3 being the insurer, its liability is joint and several with other respondents. Accordingly, respondent No.3 is directed to deposit the award amount within a period of 30 days. In case of any delay, it shall be liable to pay interest at a rate of 12% per annum for the period of delay.
34. The Hon'ble High Court of Delhi in its latest judgment in Union of India and Another Vs. Nanisari and Others MACA 682/2005 decided on 13.1.2010 have given certain guidelines and directions to the Motor Accident Tribunals to the effect that henceforth the Tribunals shall direct the insurance companies to deposit the award amount in the bank within 30 days with further direction as to the disbursement of the same in terms of the award and case be kept pending till the compliance is placed on record. The directions Suit No.671/08 Page No.9/12 given by Hon'ble High Court of Delhi as mentioned and endorsed in the said order has already been re affirmed by Hon;ble Supreme Court of India in order dated 17.12.2009 in SLP (C) No. 11801-11804/2005 which contains certain schemes initiated for the benefit of the victims of the road accidents after the award amount is passed. The para no.18 of the judgment of the Hon'ble High court of Delhi runs as under:-
"19. To protect and preserve the compensation amount awarded to the families of the deceased victim special schemes may be considered by the insurance companies in consultation with the Life Insurance Corporation of India, State Bank of India or any other Nationalized Banks under which the compensation is kept in fixed deposit for an appropriate period and interest is paid by the Bank monthly to the claimants without any need for claimants having to approach either the Court or their counsel or the Bank for that purpose. The scheme should ensure that the amount of compensation is utilized only for the benefit of the injured claimants or in case of death, for the benefit of the dependent family. We extract below the particulars of a special Scheme offered by a nationalized Bank at the instance of the Delhi High Court:
(i) The fixed deposit shall be automatically renewed till the period prescribed by the Court.
(ii) The interest on the fixed deposit shall be paid monthly.
(iii) The monthly interest shall be credited automatically in the saving account of the claimant.
(iv) 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.
(v) The original fixed deposit receipt shall be handed over to the claimant at the end of the fixed deposit period.
(vi) Photo identity card shall be issued to the claimant and the withdrawal shall be permitted only after due verification by the Bank of the identity card of the claimant.
(vii) No cheque book shall be issued to the claimant without permission of the Court.
(viii) No loan, advance or withdrawal shall be allowed on the fixed deposit without permission of the Court.
(ix) The claimant can operated the saving bank account from the nearest branch of UCO Suit No.671/08 Page No.10/12 Bank on the request of the claimant, the bank shall provide the said facility."
35. It was further held in the judgment passed by Hon'ble High Court of Delhi in Nanisiri case (Supra) that "The State Bank of India and UCO Bank have formulated special schemes for the victims of the road accident on the above terms and, therefore, the order for the deposit should be made presently to State Bank of India through its nodal officer Mr. H S Rawat, Relationship Manager, Tis Hazari Branch, Tis Hazari (Mb:
09717044322) or to UCO Bank through Mr. M M Tandon, Member-Retail Team, UCO Bank Zonal, Parliament Street, New Delhi (Mobile No.09310356400) as per the convenience of the victim /legal representatives of the victim. However, if any other bank agrees to provide the special scheme for victims of the road accident on the above terms, the deposit be permitted to be made in that Bank subject to the convenience of the victim/legal representative of the victim of the road accident".
36. In terms of the order of the Hon'ble High Court of Delhi the insurance company shall deposit the award amount in the State Bank of India, Tis Hazari Court Complex Branch, Delhi in the name of the petitioner/ petitioners in terms of the award and shall file the compliance report. It is made clear that at the time of the deposit of the award amount with the bank, the insurance company shall specifically mention the suit no. of the case, title of the case as well as date of decision with the name of court on the back side of the cheque. The insurance company shall also file the attested copy of the award attested by its own officer to the bank at the time of deposit of the amount with the bank.
37. The copy of this award be given to the insurance company as well as to the petitioner free of cost. The petitioner shall approach the State Bank of India, Tis Hazari Court Complex Branch, Delhi for opening the account.
38. The Manager of the Bank is directed to comply the award. The Bank Manager is directed to release the award amount to the petitioner. However, in case the amount is ordered to be kept in the FDR, the said amount should not be released unless the FDR is matured.
Suit No.671/08 Page No.11/12File be consigned to Record Room.
A separate file be prepared for compliance report and put up the same on 20/11/2012, to be fixed by insurance company.
Announced in the open court
On 20thof September, 2012 (SANJAY KUMAR AGGARWAL)
JUDGE: MACT (WEST):DELHI
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